Non-compliance of mandatory provisions does not necessarily invalidate the action unless it has caused serious prejudice or failure of justice.

Dhirendra Mishra, J.

1. With the consent of the parties, the matter was heard finally.

2. The petitioners by the instant petition under Article 226 of the Constitution of India have impugned the order of Annexure P-6 dated 14-12-2007 passed by Upper Collector, Baloda Bazar, Distt. Raipur whereby the reference under Section 21 (4) of the Panchayat Raj Adhiniyam, 1993 (for brevity 'the Act of 1993') filed by the respondent No. 6, Sarpanch, has been allowed and the resolution of 'No Confidence Motion' dated 27-8-2007 passed in the meeting of Gram Panchayat Bhawanipur, has been set aside.

3. The undisputed facts are that the respondent No. 6 is elected Sarpanch of Gram Panchayat Bhawanipur. The 'No Confidence Motion' was submitted against her by twelve members of the Panchayat before the Prescribed Authority, i.e., Sub-Divisional Officer, Baloda Bazar, respondent No. 4 herein, on 6-8-2007. The matter was posted on 13th August, 2007 and on that date it was directed to convene a meeting of the members of the Panchayat on 27th August, 2007. Naib Tehsildar, Palari, respondent No. 5 herein, was appointed as Presiding Officer for the above meeting to consider the 'No Confidence Motion' against the respondent No. 6. The meeting was convened on 27-8-2007, in which all the 16 members of Gram Panchayat Bhawanipur including the respondent No. 6 Sarpanch participated and the Presiding Officer declared that the motion of No Confidence is carried out with the majority of 12 members in favour and four against out of the total 16 members of the Panchayat.

4. A reference was filed by the respondent No. 6 Sarpanch against the above resolution passed against her on 27-8-2007 before the Upper Collector, respondent No. 3 herein, on 25-9-2007. Initially, the reference was dismissed as barred by time, however, the writ petition preferred by the respondent No. 6 was allowed and the matter was remitted back to the Upper Collector/respondent No. 3 for reconsideration of the reference after notice to all the concerned. Accordingly, the matter was again heard by the Upper Collector/respondent No. 3, who, by the impugned order, set aside the 'No Confidence Motion' with an observation that compliance of Rule 3 (3) of the Gram Panchayat Ke Sarpanch Tatha Up-Sarpanch, Janpad Panchayat Tatha Zila Panchayat Ke President Tatha Vice-President Ke Virudh Avishwas Prastav) Niyam, 1994 (for convenience 'the Rules, 1994') is mandatory and in the instant case, the notice of 'No Confidence Motion' was given on 6th August, 2007 whereas the meeting was convened on 27th August, 2008, i.e., beyond the period of 15 days and it was in contravention of the mandatory provisions of Rule 3 (3) of the Rules, 1994.

5. Learned Counsel for the petitioners submits that from perusal of the proceedings of 'No Confidence Motion' (Annexure P- 3) it would be evident that the respondent No. 6 Sarpanch was afforded an opportunity of putting up her case against the 'No Confidence Motion' and she did not take any objection that the meeting is being convened beyond the mandatory period of 15 days and therefore, a prejudice has been caused to her. All the 16 members of Gram Panchayat, Bhawanipur participated in the said meeting without any objection and cast their votes. The resolution bears the signatures of all the 16 members present in the meeting and the 'No Confidence Motion' was carried out as 12 members voted in favour of the resolution and 4 against.

6. Reliance is placed on the orders passed in the matters of Nanchi Bai v. State of M.P. and Ors. 2005(1) MPLJ 200 and Bhulin Dewangan v. State of M.P. and Ors. 2000(4) M.P.H.T. 69 (FB) : 2001(2) MPLJ 372.

7. On the other hand, Shri P.P. Sahu, learned Counsel appearing for the respondent No. 6 Sarpanch, vehemently argued that Sub-rule (3) of Rule 3 of the Rules, 1994 is mandatory. Even otherwise, from perusal of the documents annexed with the petition it would be evident that the notices were dispatched on 20th August, 2007 for service on the mem