RAMNATH KAUSHIK Vs. STATE OF M P

JUDGEMENT

(1.) THIS petition challenges the order Annexure-P/1 dated 29-8-1997 passed by the Additional Collector, Bilaspur, in Case No. 40-B/128-96-97 under the provisions of Section 91 of the Madhya Pradesh Panchayat Raj Adhiniyam, 1993 (hereinafter referred to as the 'act'), by which the no confidence motion has been held to have been duly passed against the petitioner, Sarpanch, Gram Panchayat Semra as also the order Anncxure-P/2 passed by the Additional Commissioner in Appeal under Rule 3 of the Madhya Pradesh Panchayats (Appeal and Revision) Rules, 1995 affirming the said order Annexure-P/1 and further seeks a declaration to the effect that the no confidence motion moved against the petitioner has failed. The petitioner was the elected Sarpanch of Gram Panchayat Semra. A notice for moving a motion of no confidence, against the petitioner, was given to the Prescribed Authority and the Prescribed Authority therefore, fixed 10/5/1997, as the dale for the meeting, to consider the motion as required by Rule 3 of the "madhya Pradesh Panchayat (Gram Panchayat Ke Sarpanch Tatha Up- Sarpanch, Janapad Panchayat Tatha Zila Panchayat Ke President Tatha Vice-President Ke Virudh Avishwas Prastav) Niyam, 1994 framed under Section 95 (1) read with sub-section (2) of Section 21, sub-section (2) of Section 28 and sub-section (2) of Section 35 of the Act (hereinafter referred to as the "no Confidence Motion Rules" ). Shri C. L. Markandia, Naib Tehsildar, Janjgir was appointed to preside over the meeting as required by Rule 4 of the said Rules. In the meeting, to consider the said motion, 15 votes were given for the motion while 5 against it and one vote was declared invalid. Since 15 votes out of 21 members present and voting did not constitute the requisite 3/4th majority as per Section 21 (1), the motion was declared to have fallen. Against the said motion, an appeal was filed by the respondent No. 5, Up-Sarpanch of the Gram Panchayat, before the Collector which was allowed by order Annexure-P/1 and the Collector held, on examination of the vote declared invalid by the Prescribed Officer, that the vote was valid and was for the motion with the result, the no confidence motion was clearly carried by 16 votes for the motion as against 5 which constituted the requisite majority. The petitioner preferred an appeal before the Commissioner, Bilaspur Division, which was dismissed by order Annexure-P/2 and the Commissioner held that the order of the Collector was in accordance with law.

(2.) THE learned counsel for the petitioner has submitted that after insertion of sub-section (4) of Section 21, a dispute against the no confidence motion could be referred only by the Sarpanch or the up-Sarpanch who desires to challenge the validity of the motion carried out under sub-section (1) of Section 21 of the Act and the decision of the Collector thereon has been attached finality. On a motion of no confidence having failed against the Sarpanch, the Up-Sarpanch had no authority to raise dispute under sub- section (4) of Section 21 and the order of the Collector was, therefore, without jurisdiction. Learned counsel has also submitted that the symbol assigned in the vote declared invalid was not in conformity with the provisions of no confidence Rules with the result, the Prescribed Officer had rightly declared the vote to be invalid and the Collector, therefore, committed a gross error in treating the said vote as valid and on that basis declaring the motion of no confidence as having been passed.

(3.) LEARNED counsel for the respondents, in controversion, has submitted that the appeal was filed by the respondent No. 5 under the provisions of the Appeal and Revision Rules and not in the nature of a dispute under Section 21 (4) of the Act and even assuming that the appeal under the said Rules did not lie against the fall of a no confidence motion, the Collector had the requisite jurisdiction and authority under Rule 5 of the Appeal and Revision Rules, to examine the regularity of the proceedings of the authority sub- ordinate to him and to pass the said order. Learned counsel for the respondent No. 5 has further submitted that on a visual examination of the vote declared invalid by the Prescribed Officer, it was apparent that the Presiding Officer had erred as the vote clearly indicated that the same had been cast in favour of the motion.