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2004(1) JLJ 340
A.K. Mishra, J.
Jugraj Singh Markam v. Dhannulal Maravi and others
W.P. No. 6505 of 2002;
Decided on 7.5.2003.
Petitioner is a Panch of Gram Panchayat Kareli, Tahsil Baihar, District Balaghat and holding the charge of the post of Sarpanch. Respondent No.1 was elected as Sarpanch of Gram Panchayat Kareli. No-confidence motion was moved against Sarpanch Shri. Dhannulal Maravil respondent No. 1. The resolution was passed by 2/3rd majority. Presiding Officer held that no-confidence motion has been duly passed against the Sarpanch. However, Sarpanch preferred dispute u/s 21(4) of the M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993. In the dispute, it was submitted, notice was not despatched before seven clear days of the meeting. As such the order of SDO is illegal and in violation of the mandatory provisions of Rule 3 of the Rules for no-confidence motion. Modification in the order of appointment of Presiding Officer was made. The Presiding Officer was changed on 26.7.2002 which was not informed to the Sarpanch or Secretary of the Gram Panchayat. When the order of appointment of Presiding Officer was modified on 26.7.2002, seven clear day‘s time ought to have been given from 26.7.2002. It is averred that said dispute was not filed within the period of limitation before the Collector. The Collector has passed the order P-2 dated 18.10.2002 and resolution has been declared to be illegal. Hence, the present writ petition has been filed by the petitioner. [Para 2
Held: Provision about ‘seven clear days‘ notice for the meeting is a mandatory one and in the computation of that period "both the terminal days have to be excluded", that is, the date of despatch and date of meeting. [Para 10
Prejudice has been caused to the petitioner as notice was not despatched before seven clear days which is mandatory. Petitioner was not informed of the charges also on the basis of which no-confidence motion was moved and Collector has found that prejudice has been caused. Law prescribed mode that notice of seven days should be despatched before seven days otherwise the submission of the learned counsel for respondent No.1 that notice may be of even 24 hours and in case participation is there, meeting cannot be said to be a valid meeting. Meeting has to be convened in accordance with the rules. 1968 JLJ 125, AIR 1955 Nag. 35, 2000(2) JLJ 253 (FB), 1997(2) Vidhi Bhasvar 284, 1997(1) Vidhi Bhasvar 49, 1998(2) JLJ 113, 1997(2) JLJ 397, 1998(1) JLJ 124, 1964 JLJ 249 and 1998(1) JLJ 399 discussed and relied on. 2003(1) JLJ 65 distinguished. [Paras 10 to 18 & 20
(2) Panchayat (Gram Panchayat Ke Sarpanch Tatha Up-Sarpanch, Janpad Panchayat Tatha Zila Panchayat Ke President Tatha Vice-President Ke Viruddh A vishwas Prastav) Niyam, 1994 (M.P.) -- Rr. 5(4) and 5(5) -- meeting for consideration of no-confidence motion -- Sarpanch concerned not allowed to explain charges against himself -- prejudice caused -- meeting and motion rightly set aside.
Right to speak has been held to be valuable right. Collector on facts has found in the instant case that in addition to the non-despatch of the notice of seven days before the meeting, prejudice has been caused to the petitioner. It has been found that at the time of no-confidence resolution, Sarpanch was not allowed reasonable opportunity of explaining the charges against him. On facts it has been found that respondent No. 1 was not allowed to speak and was not informed of the charges and it is also found by the Collector that who moved the motion has not been mentioned in the resolution. In view of the findings recorded by the Collector and considering the fact that notice was not despatched before seven days, which has also invalidated the meeting, I am not inclined to make interference in the writ petition. 1999(1) Vidhi Bhasvar 4 relied on. [Para 21
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1. Petitioner in this writ petition assails the order P-2 passed by the Collector, Balaghat, holding the no confidence resolution to be illegal and also holding the order dated 26.7.2002 with respect to the appointment of the Presiding Officer as illegal.
2. It is averred in the petition that petitioner is a Panch of Gram Panchayat Kareli, Tehsil Baihar, District Balaghat and holding the charge of the post of Sarpanch. Respondent No. 1 was elected as Sarpanch of Gram Panchayat Kareli. No-confidence motion was moved against Sarpanch Shri Dhannulal Maravi/respondent No. 1. The resolution was passed by 2/3rd majority. Presiding Officer held that no-confidence motion has been duly passed against the Sarpanch. However, Sarpanch preferred dispute u/s 21(4) of the M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993. In the dispute, it was submitted, notice was not despatched before seven clear days of the meeting. As such the order of SDO is illegal and in violation of the mandatory provisions of Rule 3 of the Rules for no-confidence motion. Modification in the order of appointment of Presiding Officer was made. The Presiding Officer was changed on 26.7.2002 which was not informed to the Sarpanch or Secretary of the Gram Panchayat. When the order of appointment of Presiding Officer was modified on 26.7.2002, seven clear day's time ought to have been given from 26.7.2002. It is averred that said dispute was not filed within the period of limitation before the Collector. The Collector has passed the order P-2 dated 18.10.2002 and resolution has been declared to be illegal. Hence, the present writ petition has been filed by the petitioner. It is submitted that dispute was not preferred within 7 days. The period of 7 days is prescribed under Rule 3 for despatch of notice not for the service, therefore, the findings of the Collector that notice was not of seven clear days is bad in law. Petitioner has relied on the decision of the Shrinarayan Tiwari and others v. State of M.P. and others [1998(1) JLJ 124], to submit that when a person has participated in the meeting, is not entitled to raise the objection after the resolution of no-confidence has been passed. No objection was raised before the meeting by the Sarpanch, hence, the order of the Collector is bad in law and deserves to be set aside.
3. A return has heen filed by respondent No. 1 Shri Dhannulal Maravi contending that against the order P-2 passed by the Collector an appeal was preferred by petitioner before the Addl. Commissioner and thereafter withdrawal application R-2 was filed on 29.11.2002. This fact has been suppressed by the petitioner. Respondent No.1 had filed W.P. No. 4373/2002 before this Court. This Court as per order R-3 dated 16.8.2002 directed respondent No.1 to file the dispute before the Collector. After obtaining the certified copy of the order dispute was filed before the Collector, Balaghat and the Collector has passed the order R-2 on 18.10.2002. The SDO has asked the petitioner to handover the charge as per letter R-4 dated 11.11.2002, hence, to retain charge petitioner his filed this writ petition. It is further contended that opportunity of speaking putting objection and showing explanation to no-confidence was .not assigned to the respondent No. 1. The order passed by the Collector is proper. No interference is called for. Respondent No. 1 has submitted in the return dated 15.1.2003 that notice R-8 was received on 27.7.2002 on the same very date of the meeting. Notice was not dispatched seven clear days before meeting:
4. Shri Pradeep Naveriya, learned counsel for the petitioner, has submitted that the order passed by the Collector is illegal. He has submitted that as respondent No.1 had participated in the meeting as such cannot raise the grievance of non-despatch of the notice, even if despatch of notice was not seven clear days before the date of the meeting. No prejudice has been caused. He has further submitted that by making amendment in the appo
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