RASHESWARI SETHI Vs. SUB COLLECTOR

JUDGEMENT

(1.) Petitioner is the Sarpanch of Mahadevpali Grama Panchayat under Binka Police Station in the district of Sonepur. In this writ petition she has alleged that the process of no confidence motion proceeded illegally and contrary to the provision of law and therefore the same should be set aside. In that context petitioner invited our attention to the following order passed on 05.08.2004 in Misc. Case No.7858 (in W.P.(C) No.7883 of 2004): As an interim measure, it is directed that no confidence.motion scheduled to be held on 10th of August, 2004 may be allowed to be held, but the result thereof shall not be given effect to without leave of the Court. She argued that, with a view to achieve the purpose of no confidence motion against the petitioner, the Tahasildar, Binka, being the officer authorized by the Sub-Collector to conduct the no confidence proceeding, allowed no confidence motion to proceed but subsequently destroyed the ballots already cast and issued fresh ballots. She alleged that in the meantime Ward Members were influenced and pressurised to support the no confidence motion. Petitioner stated that in the said process opposite party No.2 made access to the ballots on the basis of casting of votes by the Ward Members and that action of the Tahsildar was against the direction in the above quoted order of this Court.

(2.) Counter affidavit was filed by opposite party No. 1 to counter the allegation of malpractice and mischief. Similarly, counter affidavit has been filed by the intervenors who are some of the Ward Members of the said Panchayat denying to the aforesaid allegation. In the counter affidavit opposite party No.1 has stated that: 9. It is pertinent to mention here that when all the 11 members out of 14 voted it was noticed that the ballot papers were not prepared correctly due to clerical mistake as the said papers were not prepared chronologically for which it was necessary to correct and fresh preparation of ballot papers which was made on the consent of all the members present in the said meeting including the petitioner, as would be evident from the proceeding dated 10.8.04 which was signed by all the Ward Members including the petitioner and after preparation of the fresh ballot paper the No Confidence Motion was held and the members voted to which the petitioner objected. A copy of the proceeding dated 10.8.04 is filed herewith and marked as Annexure-A/2.

(3.) On our direction learned Addl. Govt. Advocate has produced for our perusal copy of the resolution book opened on 19.08.2004 and there is note of the special sitting on 10.08.2004 indicating that there was statement made by the Naib-Sarpanch in support of no confidence motion and thereafter 15 ballots were prepared out of which 11 were utilized, as 11 Ward Members cast their votes, 3 of the Ward Members and the Sarpanch declined to cast their votes. Therefore, the used and unused ballots were kept in sealed cover, but at 1.00 p.m. Sarpanch filed an application stating that there was some irregularity in the ballot papers (on which votes were cast) and therefore, again ballot papers were prepared and vote was taken. Because of that, the first batch of ballots (which had been kept in sealed cover) were destroyed. The used 11 ballots were brought out from the ballot box, verified and found that all the ballots were in favour of the no confidence motion. There are four unused ballots that were kept in sealed cover. It is also in the resolution that the used and unused ballots in the sealed cover were sent to the High Court through the Office of the Collector. It is noted in the Resolution Book that, "proceeding is recorded by G.P.E.O. in absence of E.O.-cum-Secretary, G.P. as per my dictation. Sd- Tahsildar, Binka. 10.8.2004". The sealed envelops of the used and unused ballots produced before us are not opened for verification save and except opening the envelop containing the Resolution Book. We direct the Court Master to prepare Xerox copy of the Resolution Book under the supervision of the Deputy Registrar (Judicial) and with due attestation of each page. That Xerox copy be kept in a sealed cover and tagged to this record for future reference and the original Resolution Book be returned immediately to learned Add). Govt. Advocate together with the sealed envelops of used and unused ballots. Learned Addl. Govt. Advocate may keep the said documents in safe custody so that the matter relating to contempt can be appropriately considered.