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2018 Supreme(MP) 643
IN THE HIGH COURT OF MADHYA PRADESH
Vivek Rusia, J.
Sikandar Khan Mev v. State of M.P. and others
Writ Petition No. 1952 of 2018 (Indore); Decided on 20.8.2018.
L.C. Patne for petitioner; H.Y. Mehta, Government Advocate for respondents/State; C.L. Yadav with P.R. Bhatnagar for respondent No. 5.
Headnote:¼1½ iapk;r jkt ,oa xzke Lojkt vf/kfu;e] 1993 ¼e-ç-½ & /kkjk 21 rFkk 21&d & e-Á- iapk;r ¼xzke iapk;r ds ljiap rFkk miljiap] tuin iapk;r rFkk ftyk iapk;r ds v/;{k rFkk mik/;{k ds fo#) vfo'okl ÁLrko½ fu;e] 1994 & fuŒ 5 ¼5½ & ljiap dks okil cqyk;k tkuk & xzke lHkk }kjk mi[kaM vf/kdkjh ds le{k /kkjk 21&d ds v/khu ifjokn & /kkjk 21&d dk ykxw gksuk & /kkjk 21&d ds vk/khu ÁfØ;k fofgr ugha gksus ls dk;Zokgh lekIr dh xbZ & /kkjk 21&d dsoy lkjoku~ vkSj lkeF;Zdkjh mica/k gS tks xzke lHkk dks ljiap dks okil cqykus dh 'kfä nsrk gS & /kkjk 21&d dks ÁHkkoh djus ds fy, /kkjk 21 rFkk 1994 vkSj 1995 ds fu;eksa ds v/khu fofgr ÁfØ;k dk vuqlj.k fd;k tk ldrk gSA 2008 ¼2½ ts ,y ts 26 voyafcrA ¼2008½ 13 ,l lh lh 395] ¼2011½ 4 ,l lh lh 402] ¼2011½ 1 ,l lh lh 534] ¼2003½ 3 ,l lh lh 272 rFkk ¼2007½ 6 ,l lh lh 798 vuqlfjrA 2002 ¼2½ ,e ih ,y ts 233 fufnZ"VA ¼iSjk 15 ls 20½
¼2½ iapk;r jkt ,oa xzke Lojkt vf/kfu;e] 1993 ¼e-ç-½ & /kkjk 21 rFkk 21&d & ljiap dks okil cqykus ds fy, xzke lHkk }kjk mi[kaM vf/kdkjh ds le{k /kkjk 21&d ds v/khu ifjokn & dksbZ fofgr ÁfØ;k ugha & ljdkj ls vuqns'k bZfIlr & lapkyd] iapk;r us vkns'k fnukad 15-1-2018 }kjk funsf'kr fd;k fd dk;Zokgh tkjh ugha j[kh tk ldrh & ,sls vkns'k ls /kkjk 21&d ds mica/k vuko';d rFkk fujFkZd gks tkrs gSa & og ,slk vkns'k ikfjr djus ds fy, l{ke ugha gS & ljiap dks okil cqykus dh dk;Zokgh bl jhfr ls lekIr ugha dh tk ldrhA ¼iSjk 21½
¼3½ iapk;r jkt ,oa xzke Lojkt vf/kfu;e] 1993 ¼e-ç-½ & /kkjk 21&d & ljiap dks okil cqykus ds fy, dk;Zokgh & fjV ;kfpdk esa vkifÙk fd ÁLrko xzke lHkk ds 1@3 lnL;ksa }kjk lefFkZr ugha & ;g vkifÙk mi[kaM vf/kdkjh }kjk xqIr ernku dh dk;Zokgh esa fofuf'pr dh tk ldrh gSA ¼iSjk 22½
(1) Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (M.P.) -- Ss. 21 and 21-A -- M.P. Panchayat (Gram Panchayat Ke Sarpanch Tatha UP-Sarpanch, Janpad Panchayat Tatha Zila Panchayat Ke President Tatha Vice-President Ke Virudh Avishwas Prastav) Rules, 1994 -- R. 5(5) -- recalling of Sarpanch -- complaint by Gram Sabha before SDO under section 21-A -- applicability of section 21-A -- proceedings dropped because no procedure prescribed under section 21-A -- S. 21-A is only a substantive and enabling provision which gives power to Gram Sabha to recall Sarpanch -- procedure under section 21 and under Rules of 1994 and 1995 can be followed to give effect to S. 21-A. 2008(2) JLJ 26 relied on. (2008)13 SCC 395, (2011)4 SCC 402, (2011)1 SCC 534, (2003)3 SCC 272 and (2007)6 SCC 798 followed. 2002(2) MPLJ 233 referred to. [Paras 15 to 20
(2) Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (M.P.) -- Ss. 21 and 21-A -- complaint by Gram Sabha before SDO under section 21-A for recalling of Sarpanch -- no prescribed procedure -- instructions sought from Government -- Director of Panchayat vide order dated 15.1.2018 directed that proceedings cannot be continued -- by such order, provisions of section 21-A become redundant and otiose -- he is not competent to pass such order -- proceeding of recalling of Sarpanch cannot be dropped in this manner. [Para 21
(3) Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (M.P.) -- S. 21-A -- proceeding for recalling of Sarpanch -- objection in writ petition that motion is not supported by 1/3 members of Gram Sabha -- objection can be decided by SDO in proceeding for secret ballet. [Para 22
1. The petitioner has filed the present petition being aggrieved by order dated 4.1.2018 passed by the Sub-Divisional Officer (SDO), Revenue, Mandsaur and order dated 15.1.2018 passed by the Collector, District Mandsaur.
2. The petitioner is resident of village Fatehganj, Tahsil Deora and voter of Gram Panchayat Fatehganj. The respondent No. 5 was elected as Sarpanch and has completed more than 2 ½ years on the said post.
3. According to the petitioner, respondent No. 5 was indulging in large number of corruption and misusing his office to enrich himself therefore petitioner along with as many as 591 members of the Gram Sabha of Village Fatehganj submitted a representation dated 17.11.2017 to the SDO, Revenue, Mandsaur seeking recalling of the respondent No. 5 from post of Sarpanch of Fatehganj under section 21A of the Panchayat Raj and Gram Swaraj Adhiniyam, 1993 . The SDO registered the complaint as Case No. 153/13-121/2017-18 and directed the Tahsildar to conduct an inquiry in order to ascertain the genuineness of the signatures of the complainants. The Tahsildar issued a public notice dated 5.12.2017 to the petitioner as well as 614 other members of Gram Sabha, Fatehganj to appear before him on the date and time specified in the said notice. The petitioner and others submitted protest before respondents No. 2 and 3 in respect of the procedure adopted by the Sub Divisional Officer.
4. Despite aforesaid protest, the Tahsildar inquired into the genuineness of the names and signatures of the complainants and reached to the conclusion that out of 1686 voters of Gram Sabha, as many as 612 members have shown their willingness for recalling of respondent No. 5 from the post of Sarpanch.
5. According to the petitioner, after the aforesaid procedure, the Sub Divisional Officer ought to have conducted secret ballot for the purposes of recalling of respondent No. 5, but by the impugned order dated 4.1.2018, he has deferred the proceedings and sought instructions from the State Government. The Collector, Mandsaur, vide order dated 15.1.2018 has further sought instructions from respondent No. 1 as regards the procedure to be adopted in the case of recalling of respondent No. 5 in absence of any procedure prescribed under sec 21A of the Panchayat Raj and Gram Swaraj Adhiniyam, 1993 . When respondents No. 2, 3 and 4 did not take any action as per section 21A of the Panchayat Raj and Gram Swaraj Adhiniyam, 1993, the petitioner has approached this Court by way of the present writ petition.
6. After notice, respondents No. 1 to 4 have filed the return by submitting that section 21-A of the Panchayat Raj and Gram Swaraj Adhiniyam, 1993 provides for recalling of Sarpanch and Panch of Gram Panchayat in accordance with the procedure as may be prescribed, but neither the Act nor the Rules made thereunder provides any prescribed procedure for conducting secret ballot. Since there is no procedure prescribed, therefore, the Director vide letter dated 27.1.2018 has rightly directed the Collector that since no Rules have been notified, therefore, the proceedings cannot be continued for removal of respondent No. 5 under section 21-A of the Panchayat Raj and Gram Swaraj Adhiniyam, 1993 .
7. The respondent No. 5 has also filed the return by submitting that the complaint is signed by 591 members, out of which, the Tehsildar found that 67 members have denied their signature on the proposal for recalling the Sarpanch. Thus, only 524 members have treated to sign the proposal, whereas as per voter list, total numbers of voters in the year 2017 are 1686 and accordingly, 1/3rd voters would be 562. Since the proposal for recall was not made by 1/3rd of total voters of Gram Panchayat, therefore, the proceedings under section 21-A of the Panchayat Act are not maintainable and the same has rightly been dropped.
8. The respondent No. 5 has further submitted that the State Election Commission is competent authority in respect of the election of Gram Panchayat. The peti
