Dhamendra Rattre Vs State of Chhattisgarh & others

Chhatisgarh High Court (Single Judge)

ACQA->ACQUITTAL APPEAL [ APPEAL U/S 378 ], 791 of 2013 of 2015, Judgment Date: Feb 02, 2015

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HIGH COURT OF CHHATTISGARH AT BILASPUR
WP (227) No.791 of 2013
PETITIONER: Dhamendra Rattre
Versus
RESPONDENTS: State of Chhattisgarh & others
Present:
Shri P.P. Sahu, counsel for the petitioner.
Shri Bhaskar Payashi, Panel Lawyer for the State.
None for respondents 4 to 14.
O R D E R
(Passed on 2nd February, 2015)
PRASHANT KUMAR MISHRA, J.
1. The petitioner is challenging the order passed by the Collector, Kabirdham
vide Annexure-P/1 dismissing his reference application under Section
21(4) of the CG Panchayat Raj Adhiniyam, 1993 (for short 'the Act'), which
in turn was preferred to challenge the resolution of the Gram Panchayat
dated 4.5.2013 passed by the Gram Panchayat to remove the petitioner
as a consequence of motion of no confidence being carried against him.
2. The petitioner is elected Sarpanch of village Panchayat Majgaon, District
Kawardha. Some of the Panchas of the said Gram Panchayat moved the
motion of no confidence on 12.4.2013 presenting the same before the
prescribed authority. The said prescribed authority issued notice to the
petitioner and other office bearers/members of the Panchayat on
27.4.2013 informing that a meeting to consider motion of no confidence
shall take place at 12 noon on 4.5.2013. On the said date, 9 Panchas
voted in favour of the motion, 2 members voted against the motion and 1
vote was declared invalid. Since the required number of members of the
Panchayat had supported the motion, the same was declared carried and
the petitioner stood unseated from the office. His application under
Section 21 (4) of the Act has also been rejected by the Collector. The
petitioner thereafter preferred a revision application, which was dismissed
as not maintainable.
3. It has been argued by the petitioner that as per Rule 3 of the Chhattisgarh
Panchayat (Gram Panchayat Ke Sarpanch Tatha Up-Sarpanch, Janapad
Panchayat Tatha Zila Panchayat Ke President Tatha Vice-President Ke
Virudh Avishwas Prastav) Niyam, 1994 (for short 'the Rules'), the
prescribed authority was required to issue notice fixing the date of meeting
after giving 7 clear days time but the said mandatory provision having not
been followed, the meeting and the consequent resolution is illegal.
4. None appeared for respondents 4 to 14 despite service of notice, whereas
learned State counsel has supported the impugned order passed by the
Collector.
5. Heard learned counsel for the parties at length and perused the record.
6. The only issue to be considered is – whether requirement under Rule 3 for
issuance of notice of no confidence motion giving 7 clear days time is
mandatory? If yes, whether consequent resolution would be declared
illegal?
7. Admittedly, the prescribed authority had issued notice to the members of
the Panchayat vide Annexure-P/2 on 27.4.2013 convening meeting on
4.5.2013. If the dates of issuance of notice and the date of meeting are
excluded from calculation, there remains only 6 clear days between those
2 dates. Thus, it would be apparent that 7 clear days notice was not
issued by the prescribed authority.
8. Rule 3 of the Rules which prescribes the procedure for convening meeting
is reproduced hereunder for ready reference:-
“3. Notice.- (1) Elected members of Gram Panchayat,
Janapad Panchayat or Zila Panchayat desiring to move
a motion of no confidence against the Sarpanch or Up-
Sarpanch of a Gram Panchayat or President or Vice-
President of Janapad or Zila Panchayat, as the case
may be, shall give a notice thereof to the prescribed
authority in the form appended to these rules:
Provided that such notice shall be signed by not less
than one third of the total number of elected members of
the concerned Panchayat:
Provided further that where the elected members
desire to move the motion of no confidence against both
the Sarpanch and Up-Sarpanch, President and Vice-
President of Janapad Panchayat or Zila Panchayat, as
the case may be, they shall give separate notice.
(2) The prescribed authority, on receiving the notice
under sub-rule (1) shall sign thereon a certificate stating
the date on which hour and at which the notice has been
given to him and shall acknowledge its receipt.
(3) On receiving the notice under sub-rule (1), the
prescribed authority shall satisfy himself about the
admissibility of the notice with reference to Section 21
(3), 28 (3) and 35 (3), as the case may be. On being
thus satisfied, he shall fix the date, time and place for the
meeting of the Gram Panchayat, Janapad Panchayat or
Zila Panchayat, as the case may be, which shall not be
more than fifteen days from the date of receipt of the
said notice. The notice of such meeting specifying the
date, time and place thereof shall be caused to be
despatched by him through the Secretary of the Gram
Panchayat or Chief Executive Officer of the Janapad or
Zila Panchayat, as the case may be, to every member of
the Panchayat concerned seven days before the
meeting.”
9. The last part of sub-rule (3) of Rule 3, as quoted above, makes it
obligatory for the prescribed authority to cause to be despatched notice
specifying the date, time and place of meeting, to every member of the
Panchayat concerned 7 days before the meeting. Thus, issuance of notice
giving 7 clear days time is the requirement under the Rules.
10. In Bhulin Dewangan Vs. State of M.P. and others1, the Full Bench of the
M.P. High Court has held in para-8 of the judgment that “The second part
of sub-rule (3) of Rule 3 mandates that the prescribed authority after fixing
date, time and place of the meeting within the prescribed period not later
than 15 days as laid down in the first part of the Rule, shall cause
despatch of notice of such meeting to every member of the Panchayat 7
days before the meeting. The said latter part of sub-rule (3) of Rule 3 of
1994 Rules is mandatory as intimation of date, time and place of meeting
to every member is essential to ensure his presence, if he so desires, in
the meeting to be held on such vital issue of passing of no-confidence
motion.” The Full Bench thereafter proceeded to examine whether noncompliance
of second part of sub-rule (3) of Rule 3 would, as necessary
corollary, invalidate the proceeding held in the meeting called for passing
no confidence motion. Upon consideration of different Single Bench
judgments in the matter, the Full Bench concluded that every noncompliance
of the rule need not necessarily result in nullification of the
whole action, therefore, mere non-compliance of second part of sub-rule
(3) would not in every case invalidate the action unless the Collector, while
deciding the dispute under sub-section (4) of Section 21 or the High Court
in exercise of its supervisory jurisdiction under Article 227 of the
Constitution comes to the conclusion that such non-compliance has
caused serious prejudice to the affected office bearer or has otherwise
resulted in failure of justice.
1 2001 (2) MPLJ 372
11. Although in Single Bench judgment in the matter of Jugraj Singh Markam
Vs. Dhannulal Maravi and others2, non-compliance of
issuance/despatch of notice after giving 7 clear days time has been held
to cause prejudice, the said case was a writ petition filed by the members
of the Panchayat challenging the order of the Collector, who had declared
meeting of the Gram Panchayat wherein motion of no confidence was
carried, to be illegal after recording the finding that the Sarpanch was not
allowed to speak in the meeting, therefore, prejudice was caused to him.
The facts of the case are thus distinguishable.
12. In the case at hand, it is not the contention of the petitioner that he was
not allowed to speak or that because of non-compliance of the provision
requiring 7 clear days time, he was prejudiced in any manner. Whether in
a given case prejudice has been caused or not is a question of fact to be
established by the person asserting that such prejudice has been caused
to him. In the absence of categorical submission before the Collector or
before this Court, by setting out full particulars in the writ petition, it is not
possible to hold that merely because there was violation of issuing 7 clear
days notice before the meeting, that itself is a prejudice to the Sarpanch.
If that would have been so, the Full Bench would not have put a rider that
in every case where requirement of issuing 7 clear days notice has been
violated, it would not automatically nullify or invalidate the meeting. Since
the Full Bench in Bhulin Dewangan (supra) has observed that it is
necessary for the outgoing Sarpanch to establish either before the
Collector or before the High Court in a petition under Article 227 of the
Constitution as to what prejudice has been caused, this Court, in the
2 2003 (4) MPLJ 378
absence of the said fact having been pleaded or established, finds itself
unable to accede to the prayer made by the petitioner for setting aside the
impugned order.
13. For the foregoing, the writ petition being without any substance deserves
to be and is hereby dismissed.
J U D G E
__/2/2015
Barve
WP (227) No.791 of 2013
HEADLINES
Even if 7 clear days notice not issued before calling meeting for no
confidence; resolution cannot be quashed if no prejudice is caused to
Sarpanch.
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