Maithali Sharan Rajpoot vs The State of Madhya Pradesh

Sheel Nagu, J.—This writ petition under Article 226 of the Constitution of India assails the action of the prescribed authority SDO fixing the date 17.10.2013 for convening the meeting to no confidence issued under M.P. Panchayat Rajya and Gram Swarajya Adhiniyam, 1993 Learned counsel for the rival parties are heard on the question of admission.

The basic facts giving rise to the instant petition are that certain Panchas of Gram Panchayat, Pandokhar by a notice expressed their desire to move a motion of no confidence against petitioner Sarpanch of Gram Panchayat, Pandokhar. The said notice was received by the prescribed authority SDO on 18.9.2013. For verifying the admissibility of the said notice the Panchas were directed to appear before the prescribed authority on 05.10.2013. After verifying the admissibility of the notice the prescribed authority/SDO fixed 17.10.2013 as the date for holding of the meeting to consider the no confidence motion.

On the basis of the above said factual matrix the learned counsel for the petitioner contends that the meeting of no confidence cannot be fixed beyond 15 days of the receipt of notice in view of Sub-Rule 1 and Rule 3 of the M.P. Panchayat (Gram Panchayat Ke Sarpanch Tatha UP-Sarpanch, Janapad Panchayat Tatha Zila Panchayat Ke President Tatha Vice-President Ke Virudh Avishwas Prastav) Niyam, 1994 (''Rules of 1994'' for brevity). It is thus contended that meeting fixed on 17.10.2013 is beyond 15 days of the dated of notice (18.09.2013) and, therefore, the action of the prescribed authority, is in violation of the mandatory provisions of Rule 3 (3) of the Rules of 1994 thereby vitiating all consequential actions.

For convenience the Rule 3 of the Rules of the 1994 is reproduced herein below:-

Notice (1) Elected members of Gram Panchayat, Janapad Panchayat or Zila Panchayat desiring to move a motion of no confidence against the Sarpanch or Up-Sarpanch of a Gram Panchayat or President or Vice-President of Janapad or Zila Panchayat, as the case may be, shall give a notice thereof to the prescribed authority in the form appended to these rules:

Provided that such notice shall be signed by not less than one third of the total number of elected members of the concerned Panchayat:

Provided further that where the elected members desire to move the motion of no confidence against both the Sarpanch and Up-Sarpanch, President and Vice-President of Janapad Panchayat or Zila Panchayat, as the case may be, they shall give separate notice.

(2) The prescribed authority, on receiving the notice under sub-rule (1) shall sign thereon a certificate stating the date on which hour and at which the notice has been given to him and shall acknowledge its receipt.

(3) On receiving the notice under sub-rule (1) the prescribed authority shall satisfy himself about the admissibility of the notice with reference to Section 21(3), 28 (3) and 35 (3), as the case may be. On being thus satisfied, he shall fix the date, time and place for the meeting of the Gram Panchayat, Janapad Panchayat or Zila Panchayat, as the case may be, which shall not be more than fifteen days from the date of receipt of the said notice. The notice of such meeting specifying the date, time and place thereof shall be caused to be dispatched by him through the Secretary of the Gram Panchayat or Chief Executive Officer of the Janapad or Zila Panchayat, as the case may be, to every member of the Panchayat concerned seven days before the meeting.

From the perusal of the above said Rule especially Sub Rule (3) of Rule 3 indicates that duty is cast upon the SDO to fix a date within 15 days of the receipt of notice. The mandatory nature of this provision is reflected from the use of the word ''shall''. However the consequence of fixing a date beyond 15 days of receipt of notice, for holding the meeting for considering the no-confidence motion, has not been provided in the statute.

The learned counsel for the respondent has place reliance in the case of Smt. Seva Yadav Vs. State of M.P. and Others, , in the case of Mahaveer Saket Vs. Collector and Others, and in the case of Smt. Bhulin Dewangan Vs. State of M.P. and Others, . It is contended on behalf of the respondent State that while interpreting the provisions of Rule 3 (3) of the Rules of 1994, this Court has time and again held that holding of meeting after 15 days of receipt of notice by the prescribed authority, by itself, shall not vitiate the meeting.

It is further pointed out that the mandatory nature of the provisions of Rule 3 (3) of the Rules of 1994 can vitiate the proceedings of no confidence motion only when the petitioner can show prejudice being occasioned on account of fixing of date of meeting beyond 15 days.

The purpose and object behind using the word ''shall'' in Rule 3 (3) is to circumscribed the power of the prescribed authority to fix a sufficiently longer date thereby creating an opportunity for horse-trading to take place during interregnum period between receipt of the notice and holding of the meeting for discussion of the no-confidence motion. The date of the meeting should neither very close to the date of notice so as to deny the opportunity to the Panchas to be served with the notice informing about the date and venue of meeting and nor should it be long enough to permit horse-trading. Thus, the legislature in its wisdom has fixed a reasonable time of 15 days. Another contention has been made by the learned counsel for the respondent that the prejudice if any on account of longer date can be demonstrated by the person prejudiced while participating in the meeting. Prejudice is primarily a question of fact which can be decided not on presumption but only after the facts occasioning prejudice have occurred. This can only happened when the period of 15 days or more as fixed by the SDO expires and the person prejudiced is allowed to raise objection as regards prejudice in the meeting.

Thus, from the above discussion and the judicial pronouncements (supra) it is evident that though provision of Rule 3(3) is couched in mandatory language but since no consequence is provided for its non-adherence the same becomes directory if reasonable cause exists for fixing a longer date than 15 days, but can become mandatory if no such cause is shown.

In view of the fact that no prejudice at this stage can be demonstrated by the petitioner, fixing of the date beyond 15 days by the prescribed authorities cannot be found fault with. Accordingly, this petition deserves to be and is therefore rejected.