Prabhu Dayal Patel vs State of M.P. and Another

S.L. Jain, J.

Being aggrieved by the judgment and order dated 14.5.2002 passed by learned Single Judge in Writ Petition No. 1916/2002, the Appellant, Respondent in the writ petition, has preferred this appeal under Clause 10 of Letters Patent.

Facts, in brief, necessary for disposal of this appeal are stated thus :

The Appellant Prabhudayal Patel. was the Sarpanch of Gram Panchayat, Khejra Lakhrouni, against whom resolution of ''no-confidence motion'' was passed on 5.12.2001. 12 out of 16 persons voted in favour of ''no-confidence motion'' and four persons voted against it. The Presiding Officer held that no-confidence motion was duly carried out resulting in removal of the Appellant from the post of Sarpanch.

Aggrieved by the resolution of ''no-confidence motion'', the Appellant preferred a revision petition u/s 91 of Madhya Pradesh Panchayat Raj Adhiniyam, 1993 (hereinafter referred to as ''the Act''). In the revision, it was alleged that no-confidence motion was carried in violation of Rule 4 of the Panchayat (Gram Panchayat Ke Sarpanch Tatha Up-Sarpanch, Janpad Panchayat Tatha Zila Panchayat Ke President Tatha Vice-President Ke Viruddh Avishvvas Prastav) Niyam, 1994 (hereinafter referred to as ''the Rules of 1994''). The Additional Collector dismissed the revision petition as not maintainable in view of the provisions contained in Section 21(4) of the Act. The validity of this order of Additional Collector was challenged in Writ Petition No. 500/2002. This Court remanded the matter with a direction to treat the revision petition to be a dispute u/s 21(4) of the Act. In compliance of these directions, the Collector decided the matter and set aside the resolution of ''no-confidence motion'' on the grounds that :

(1) No intimation regarding appointment of Presiding Officer was given to the Collector.

(2) The presence of Panchas was not recorded in the proceedings.

(3) No Panch was called upon to move the no-confidence motion as required by Rule 5(3) of the Rules of 1994; and

(4) Sarpanch and Up-Saipanch were not given opportunity to speak.

Against this order of the Collector, the Respondent No. 2 filed a writ petition which was decided by learned Single Judge vide the order impugned dated 14.5.2002 and the order passed by the Collector was quashed holding that ''no-confidence motion'' was validly passed against the Appellant, therefore, he has no right to hold office of Sarpanch of the Gram Panchayat. It is against this order that the Appellant has filed this Letters Patent Appeal.

We have heard Shri Mohammad Ali, for the Appellant. Shri P.D. Gupta, Dy. Advocate General, for State and Shri Muni Kant Sharma, for Respondent-2 (Caveator).

The contentions raised, by the Appellant in this appeal are the same as were raised before the Collector.

The first contention is that it was obligatory for the prescribed authority to inform the Collector of the district about the appointment of the Presiding Officer to preside over the meeting of the Gram Panchayat for the purpose of considering ''no-confidence motion'' but no such information was given to the Collector. The learned Single Judge considered certain judgments reported in Shankerlal Patidar v. Stale of M.P. and Ors. (1975 JLJ 386 : 1975 MPLJ 116), Motilal Ramcliaiidra v. Gram Panchavat, Jamburdisarwar (1983 JLJ SN 19 : 1983 MPLJ 8), Dal Krishna Patel v. Brijendra Patel and Ors. (1985 JLJ 522 : 1985 MPLJ 332), Jagdish Prasad Bhunjwa Vs. The State of Madhya Pradesh and Others, and Dhumadandhin Vs. State of Madhya Pradesh and Others, and concluded that the mere non-sending of information to the Collector regarding appointment of Presiding Officer under Rule 4 cannot nullify the resolution of ''no-confidence motion'' carried by majority.

We find no reason to take a different view. The requirement of sending information to the Collector is only directive and not mandatory. The non-performance of such a duty did not work injustice. Setting aside the ''no-confidence motion'' due to non-compliance of such a provision which caused no prejudice in any manner, should not affect the validity of the resolution which was passed by overwhelming majority. It would be undemocratic to keep a person on the post of Sarpanch when he has lost by overwhelming majority.

The second contention raised by the learned Counsel, appearing for the Appellant is that the presence of Panchas was not recorded in the proceedings. The contention is bereft of any merit. A perusal of resolution, Annexure P-3, clearly demonstrates the names of Panchas present. The presence of Panchas has been recorded in the prescribed column though the signatures of the mer.bers present and voting do not find place in the prescribed column, but there is a clear mention that the signatures have been obtained on the proceeding-register. Thus, there is substantial compliance and it cannot be said that the presence of Panchas was not recorded in the proceedings.

The next contention raised by the Appellant is that it is a mandatory requirement of Rule 5(3) of Rules of 1994 that the Presiding Officer shall ask any of the signatories to the notice to move the motion but the Presiding Officer did not do so. We have perused the resolution placed as Annexure P-3 in the writ petition. It has been specifically mentioned in the resolution that the opportunity for deliberation was given to the Panchas present. After due deliberation, the Panchas were advised for voting and all the Panchas present cast their votes. When the opportunity for deliberation was given and in fact, there was a deliberation, it cannot be said that there was non-compliance of Rule 5(3) of Rules of 1994. Therefore, there is no merit in the contention and the same is rejected.

Learned counsel, further submitted that opportunity to speak was not given to the members and also to the Appellant. If the opportunity to speak would have been given, he would have turned the table and the ''no-confidence motion'' would not have been carried out. This contention also has no merit. When the opportunity of deliberation was given, it is implicit that all the members were given the opportunity to, speak. Every member, including the Appellant, was at liberty to speak; during the deliberation. Therefore, it cannot be said that opportunity to speak was not given and the requirement of Rule 5(4) of the Rules of 1994 was not complied with.

The last ditch attempt made by Shri Mohd. Ali, is that alternative remedy of filing a revision against the order of the Collector to the Commissioner was available, therefore, the learned Single Judge should not have considered the matter in exercise of extraordinary jurisdiction of this Court under Articles 226/227 of the Constitution of India. In Smt. Premlata Jaiswal v. State of M.P. and Ors. (WP No. 3045/2001, decided by us on 2.7.2002) while answering the question posed in the reference made by a learned Single Judge of this Court we have said that against an order passed by the Collector u/s 21(4) of the Act, revision before the Commissioner is maintainable. But availability of alternative remedy is not an absolute bar to maintain a writ petition. When the impugned order is illegal, a writ petition is maintainable despite the fact that alternative remedy is available, more particularly, when in the facts and circumstances of the case, for hyper-technical reasons, the resolution of ''no-confidence motion'' is nullified by the Collector and allowed a person to occupy office, despite having been thrown out by ''no-confidence motion''.

In view of what has been stated earlier, we do not find any fault with the impugned order passed by learned Single Judge and the appeal is devoid of merit and is hereby dismissed in limine.