Schedule III

8. Constitution of Panchayat.-There shall be constituted for the purpose of this Act(al a.Gram Panchayat for a village; (b) a Janpad Panchayat for a Block; and (c)a Zlla Panchayat for a district. 9. Duration of Panchayat.-(l) Every Panchayat shall continue for five years from the date appointed for its first meeting and no longer unless sooner diss91ved under this Act.. (2)An election to constitute a PanchayaVshall be completed- (a) before the expiry of its duration specified In sub-section (1); (b) before the expiration of a period of six months from the date of its dissolution; . Provided that where the remainder of the period for which the dissolved panchay.at would have continued is less than six months it shall not be necessary to hold any election under this clause for constituting the Panchayat for such period. (3) A Panchayat constituted upon the' dissolution of aPanchayat before the expiration of its duration shall continue only for the remainder of the period for which the dissolved panchayats. would have continued under clause (I) had it not been so dissolved. COMMENTARY Holding of office.-In an electionofSarpa~ch, oneperson 'D'contested the seat but in the result, another person 'R' was,declared elected. 'D' filed an election petition, which was ultimately decided"in his favour by the Supreme Court but after alapse ofmorethan 4years. It was contendedthat such person is entitled to hold officefora full term of 5 years. Negativing his contention, it was held that the duration ofa Panchayat is always for a periodoffiveyears fromthe date ofthe first meeting. Assuch the petitioner 'D' is entitled to assume charge of Sarpanch for the remaining duration of the Panchayat and no more. Dukhkhu Singh v. State of M.P., 2005 (3) MPLJ 493=2005 (3) MPHT 46. .. • • • • • • S.7-K PANCHAYAT RAJ AVAM GRAM SWARAJ ADfII., 1993 (PA)37 (al donations, (b) income from oth<;rsources, I[(c) any sum received from the District Panchayat Raj Fund or from the Funds of three-tier Panchayats, the proceeds of the land revenue. ce~s qn land revenue, royalty received on niinor minerais, income received form lease of fishing rights, grazing fees and shala bhawan upkar as prescribed or fixed by the State Government. (d) the taxes, duties, toils and fees imposed as mentioned iti the Schedule IAand Schedule lIAand other income of the Gram Sabha.) (e) any sums received by Gram Panchayat under various schemes sponsored by the Central Government or the State Government, to be ailotted to the Gram Sabha according to norms prescribed by the Central Government or the State Government. (2) Subject to the provisions of this Act and the. rules made thereunder ail property vested in the Gram Sabha and the.Gram Kosh shail be applied for the purposes of this Act or for other purposes connected with the activities for the development of viilage or for such other expenses as the Gram Sabha may approve: . Provided that funds rec.eivedunder any; scheme, shall be.utilised,c.," " according to the guidelines issued by the Central Government, or the State Government, as the cas~maybe. " . (3)The Gram Kosh shall be kept and maintained in such manner and in such form as may be prescribed. 2[(4) The Gram Kosh shail be operated by the Gram Vikas Samiti and ail amounts from the Gram Kosh shail be drawn under Joint .signature of the 3[President of the Gram 4[Vikas] Samiti and the Secretary of the Gram Panchayatl with the approval of Gram Sabha and accounts of the drawalshall-be maintained bythe Secretary of the Gram Vikas Samiti. The information regarding all receipts into ~nd drawals from the Gram Kosh shall be placed before the Gram Satha. in its next meeting.] r r [ J : I.• (5i 5['; x x-I 7-K. Account and Audit.-The Gram Sabha shail cause to be maintained proper books of accounts and prepare annual statement of accounts. The accounts of the Gram Sabha shall be audited from time. to .time in such manner and by 'isuch authority as may be •..prt<Scribe,!.and.the Audit Report submitted',shall be"placed before the next rrieeting of the Gram Sabha . -r ..~ . 1 Clauses (c) & (d) subs. by M.P. Act 23 of 2001 {lO-1O-200l}. 2 Sub-sec. (4) subs. by M.P. Act 23 of2001 {lO-1O-200l}. 3 Subs. by M.P. Act 16 of2004, w.e.f. 1-1-2005 4 Subs. for the word "Nirman" by M.P. Act 20 of 2005, w.e.f. 30-8- 2005. 5 Sub-sec. (5) omitted by M.P. Act }6 0[2004, w.e.f. }-}-2005. \ \ • " ~. • • . . " 8.69 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHl., 1993 (PA)117 Secretary and one or more Assistant Secretaries for a Gram Panchayat. who shali discharge such functions and perform such duties as may be assigned to them by the State Government or prescribed autholity:] f Provided that the person hoiding the charge of a Secretary of Gram Panchayat immediateiy before the commencement of this Act shall continue to function as such till a Secretary is appointed in accordance with this section. 1[Provided further that a person shall not hoid charge of a 2[Secretary or Assistant Secretary] of Gram Panchayat, if such a person happens to be relative of any office bearer of the concerned Gram Panchayat. Explanation.-for the purpose of this sub-section the expression "relative" shall mean father. mother. brother. sister, husband. wife, son, daughter. father-in-law, mother-In-law. brother-in- law, slster-inlaw. son-In-law. daughter-in-law.] i' I 3[(2) The S'tate Government shall appoint for every Janpad Panchayat a Chief Executive Officer and may be also appoint one or more Additional Chief Executive Officer, who shall discharge such functions and perform such duties as may be assigned to them by the Chief Executive Officer]. 4[(3) The State Government shall appoint for every Zlla Panchayat , \ a Chief Executive Officer and may also appoint one or more Additional Chief Executive Officers, .Deputy Chief Executive Officersand.-Execu--' tive Officers who shall discharge such f)lnctions and perform such duties as may be assigned to them by the Chief Executive Officer]. .'. (4) Duling the absence of a Secretary of Gram Panchayat or 5[Chlef Executive Officer ofJanpad Panchayat or Zila Panchayat] due to leave, retirement, death, resignation or otherwise the presclibed authority shall, as soon as possible, make such arrangements as he deems fit, for carrying on the office of Secretary of Gram Panchayat or 6[Chief Executive Officer of Janpad Panchayat or Zlla Panchayati as the case may be. Aperson while carrying on such officeshall exercise al) powers. conferred by this Act or-niles madetiiereunder on the Secretary of Gram Panchayat or 7[Chlef Executive Officer of Janpad Panchayat or Zila Panchayats] as the case may be. (5) The Secretary of the Gram Panchayat, the 8[Chlef Executive Officer of the Janpad Panchayat and Zila Panchayat] shall be responsible for keeping and maintaining the records of the Gram Panchayat, Janapad Panchayat or Zlla Panchayat as'the case may be. I J 1 Ins. byMP.2of1997[7-1-19971. ,, 2 Subs. by M.P. Act No. 26 of 2012 (23-5-2012) for'the words "Secretary". 3 Subs.byMP43of1997[5-12-19971. 4 Subs.byMP2 ofJ997(7-1-19971. I .5 'Subs. by M,P. 26 of 1994 (30.5.94) for the words "Chief Executlve Officer of Janpad Panchayat or Secretary of Zila Panchayat" 6 Subs. ibid. 7 Subs. ibid. S Subs. by M.P. 26 of 1994 (30.5.94] for the words "ChIef Executive Officer of Janapad J Panchayat or Secretary of Zila Panchayat" (PA)116 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 8.67 ance with such inst."Uctions as the State Government may either generally or specially issue in this behalf. 1[(4) All amounts from the Panchayat Fund shall be drawn under,- (il, the joint signatures of the Sarpanch and Secretary in the case of a Gram Panchayat; (ii) the signature of the Chief Executive Officer or any other officer authorised by Chief Executive Officer, in the case of a Janpad Panchayat of Zila Panchayat. as the case may be: Provided that in the case ofa Janpad or Zila Panchayat all amounts shall be drav.'l1only in accordance with the Annual Budget. Detalled Action plan setting 'out purposes and with the prior approval of the General Administration Committee of the Janpad Panchayat or Zila Panchayat. as the case may-be; Provided further that information regarding all receipts into and , drawals from the Panchayat Fund shall be placed before the Panchayat in its next meeting]. ' 2[xx xl 67. Mode of executing contract.-The mode of the executing the I contracts by the Panchayats shall be such as may be prescribed. "Oft~U;b~~~h{o~i::i~<,r5;ih:e~~t:~~T~~s~~i~~~~~:rl,;lelo:n~X~~~:~ ,II' Rules givenseparately. "Modes of Executing Contract Rules, 1995" 68. Powers to make grant-in-ald.-Subject to the previous sanction of the State Government or the prescribed authority the Panchayat may make grant-in-aid for any work of public utility. COMMENTARY Promotions.- Order of promotions were passed without taking any previous approval of the prescribedatitliority'- OrdeYoeing illegal, the promoteeswere revertM back.Ratan Deep Gupta v. State of M.P., 2005 (1) MPLJ 149 (DB). ' ACCOUNTSOFPANCHAYATS. , 69. Appointment of Secretary and Chief Executive Officer.-ll) .3[The State Government or the prescribed authority may appoint a ,Secretary"and oneCifmore ASsistant'Secretaries 'for aGrarn Panchayat, who shall discharge such functions and perform such duties as may •• .. _" ~ .' __~ ' . •••• "-' -,,,~'.. ~',,".,,-. .. ~.,_' •• '0" • '..... .' ••• , 1 Subs. by MP43 of 1997 [5-12-1997[. 2 Sub-sections (5) and (6) subs. by MP 2 of 1997. omitted by MP 43 of 1997 [5-12-1997[. 3 Opening para subs. by M.P. Act No. 26 of 2012 [23-5-2012] for the following:"The State Government or the prescribed authority may appoint a Secretary for a Gram Panchayat or group of two or more Gram Panchayats:". • • • • 8.66 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)115 COMMENTARY 1. Applicability.-All appointments required the previous approval of the prescribed authority. The word "appointment" does not exclude "promotions". Raton Deep Gupta v. State of M.P., 2005 (1) MPLJ 149 (DB). 2. Natural justice.-Promotion of appellants cancelled for violation of the provisions of this section and they were reverted to their original post without giving any opportunity to show cause. The opportunity, if given, would have been futile since no other order could have been passed in the matter. Raton Deep Gupta v. State of M.P., 2005 (1) MPLJ 149 (DB). 64. Grant-in-aid to Panchayat.-The State Government shall make grant-in-aid to the Panchayats as may be decided on the basis of recommendations of the State Finance Commission. 65. Transfer of immovable property.-(l) No immovable property vested in or belonging to a Panchayat shall be transferred by sale, gift, mortgage or exchange or by lease for a period exceeding three years, or otherwise except with the sanction of the State Government or any officer authoIised by it in this behalf. (2) The procedure of transfer of immovable property shall be such as may be prescribed. COMMENTARY 1. Lease of immovable property.- Lease of immovable property cannot be granted for more than three years in the absence of sanction of the State Government, Balaram v. State of M.P" 1998 (I) MPWN 238. 2. Rules.- The State Government has made the followingrules in exercise ofthe powers conferred bythis section. These rules shall be found under Rules given separately. "Transfer of Immovable Property Rules, 1994." 66. Panchayat Fund.-(l) Every Panchayat shall establish a fund to be called the Panchayat Fund and all sums received by the Panchayat, shall form part of the said Fund. (2) Subject to; the provisions of this Act and the rules made I""reunder,all property vested in the Panchayat and the Panchayat I'und shall be applied for the purposes of this Act or for other purposes connected with activities for the development of Panchayats generally or for such other expenses as the State GQvernment may approve on an application of Panchayat or otherwise in the public interest. The Panchayat Fund shall be kept in the nearest Government Treasury or Sub-Treasury or Post Office or Cooperative Bank or Scheduled Bank or its branch. (3) An amount allotted to the Panchayat by the State Government or any other person or local authoIity for any specified work or purpose shall be utilised exchlsively for such work or purposes and in 3.~cord- • (PA)1l4 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 8.62 tion or illegal construction: , (i) being an officer having power to sanction layout ormap for the construction of a building grants sanction or approves such layout or map; or (ti) being an officer under a primary duty to do so knowingly omits to report illegal diversion of land or illegal construction of a building in such an area to the proper authority; or , , (iti) being an officer or an employee responsible to take, action against the illegal diversion of land or illegal colonization or illegal construction of a buildtng in such an area fails to take action; or (iv) being an officer or the authority competent to sanction electrical or water supply connection grants such sanction with respect to the building in such an area; or (v) illegally influences the officers aforesaid in granting such sanction or in omitting to make a report of such illegal diversion of land or construction of building in areas; shall be punished with simple imprisonment which may extend to six months or with fine or with both: r Provided that nothing contained in clause (iv) shall apply to the cases where.theCall.eciar, with the approval of.theState. Government, ""c"rtite's thaHilpublic interest there is no objectionto provideelectrical and water supply connection.to .the building in the area of illegal diversion or illegal colonization. 62. State Government may vest certain property in Panchayat.-(l) The State Government may,. by notification .and_sub-. ject to s-uch conditions and restnctions as it may think flt to impose, vest in a Gram Panchayat, Janapad Palwhayat or Zlla Panchayat as the ease may be, any property vested In the State Government. (2)The State Government may, resume any property vested in the' Panchayat other under sub-section (I). No compensation other than the amount paid by the Panchayat 'for such transfer or the market value at the date of resumption of any building or works erected or executed on such properly by the Panchayat shall be payable: P,:ovj(j~d ,t1gt no ._CRIllP.ensation.sha\l be payable in respect of building, structure or works constructed or erected in contravention --of-'"the,,.......•terms-_. and- con.cljtioJ:ls- ofJ.I1ev.esting. 63. Assignment of funds to the Panchayat.-The State GovernJIIl'1l1 may assign to a Panchayat such taxes, tolls and fees levied and collecled by the State Government and may make grant-in-aid from the consolIdated fund of the State for such purposes and subject to such conditions and limits as the State Government may deem flt. • • • • • S.61-G PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)1l3 prescribed.] 1(2) Notwithstanding anything contained in the Madhya Pradesh Land ReVen(le Code, 1959 (No. 20 of 1959) the transfer or agreement to transfer of plots made by a colonizer; in an area of lllegal diversion or illegal colonization, shall be void. (3)The prescribed authority may after giving show cause notice to the parties take over the management of the land, cause the area to be planned and developed and shall thereafter allot the land preferentially amongst the plat holders in such manner and subject to such conditions as. may be prescribed. (4) The all-out shall on fulfillment of the conditions be deemed to be a valid transferee of the plot from the Colonizer and the power of the prescribed authority as manager of the plot shall corne to an end. 61-G. Forfeiture of the land Involved In Illegal colonlzatlon.- The right, title or interest of the colonizer in the land under illegal colonization, shall upon and from the date. of conviction of the Colonizer under sub-section (3) of Section 61-0 stand forfeited and vested in the Gram Panchayat free from all encumbrances.] PREVIOUS PROVISIONS [Provisions which were applicable before substituion, are as underJ. 61-A. Definitions.-For the purposes of this Chapter "Gram Panchayat area". means such area which is situated in the Gram .cPanchayat witliiIia distance .of:--. - .. __. ..c . (i) sixteen kilometers from the limits of a Municipal Corporation constituted under the Madhya Pradesh Municipal Corporation Act, 1956 (No.23 of 1956); (ii) eight kilometers from the limits of a Municipal Councilor Nagar Panchayat constituted under the Madhya Pradesh Mrmicipalities Act, 1961 (No.37of 1961); (iii) three kilometers from the limits of an urban area other than those specified in (i).and (ii) above; (iv) one kilometers from the side of a National Highway specified in or declared under the.National Highway Act, 1956 (XLVII of 1956) or public road notified under section 2 ofthe Madhya Pradesh Highway Act, 1936 (XXXIV of 1936). 61-C. Development of Colonies.- The registration certificl!te shall entitle the Colonizer to undertake the development (}frol011iesin the Gram Panchayat area subject to th~provisiohs ofthi'l0ct and the rules made in this behalf. 61-D. Sub-section (3).~(3)Whoever commits or abetstJ1e commission of an offence of illegal diversion or lillegal colonization shall be punished with simple imprisonment which may extend to six months or with a minimum fme often thousand rupees or with both. 61-E. Punishment for abatement of Offence of DIegal Construction,- .Whoeverin the area ofillegal diversion or illegal coloniza- 1 Sub-sections (II. (2) & [3) renumbered as (2). (31 & (4) by MP 29 of 2013. 110-9-2013). .. •• .' , I, (PA)112 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 S.61'E or with a minimum fine of one thousand rupees or with both. II61-E. Punishment for abatement of Offence of illegal Construction. -(1)Whoever in the area of illegal diversion or illegal colonization or illegal constructlon,- (I) being an officer having power to sanction layout or map for the construction of a building grants sanction or approves such layout or map; or (Ii) being an officer under a primary duty to do so knowingly omits to report illegal. diversion of land or illegal construction of a building in such an area to the proper authoIity; or (ill) being an officer or an employee responsible to take action against the illegal diversion of land or illegal colonization or illegal construction of a building In such an area fails to take action; or (Iv) being an officer or the authoIity competent to sanction electrical or water supply connection grants such sanction with respect to the building in such an area, shall be punished with simple impIisonment which may extend to three years and a fine which may extend to ten thousand rupees; r Provided t hat nothing contained in clause [iv) shall apply to the cases where the Collector, with the approval of the State Government, certifies that in publlc.tntetesHnete'H;.n<.H5bJectionto provldeeJectifbil"C:.'.c "c,~ and water supply connection to the building in the area of illegal diversion or illegal colonization. ' :-- . . (2) Whoever illegally influences the officers aforesaid in granting such sanction or in omitting to make a report of such Illegal diversion of land or illegal construction shall be punished with simple imprisonment which may extend to three years and a fine which may extend to ten thousand rupees.] 2(61_EA. Punishment for not takln~ aclion against illegal colonlzatlon.-In a case'of illegal.eolonlzatlonlf au ,official authciIised-by'the --, Competent Authority to Inspect, report,s~p or remove any construction knowingly omits to take action, or'lfa'police officer responsible to provide assistance necessary for such action does not do so, shall be punished with simple imprlsonmenl which may extend to three years or with fine which may extend to tell thousand rupees or with both.) ,61-F. Transfer of plots in area of illegal diversion of illegal colonization to be void.-3((I) The Registrars and Sub-Registrars appointed under Sect\on 6 of the Registration Act, 1908 (No. 16 of . ,1908).shall; at ,the end of..every.month,cQrnmunicate details of all transfers or agreements to transfer of Plots or houses in the Gram "l?JlIlct>a}'.atareato.t4eprcf;cribed authority In such manner as may be c,• •,, t 1 Subs. by MP 21 of2013 i24-4-20131.See old provisions in Pr('vlous ProVIsions. 2 Ins. by MP21 of2013124-4-20131. 3 Ins. by MP29 of2013I10.9-20131. "p, • • S.61-D PANCHAYAT RAJ AVAM GRAM SWARAJ ADHl., 1993 (PA)1l1 establishment of the colony. (2) On receipt of the application for registration under sub- section (Il; the l[such Competent Authority as may be prescribed by State Government] shall. subject to the rules made in this behalf. either issue or refuse to issue the registration certificate within thirty days: Provided that if the 2[such Competent Authority as. may be prescribed by State Government] refuses to issue the registration certificate. the reasons for refusal shall be intimated to the applicant. (3)The State Government shall have power to make rules prescribing the form of application. amount of fees for registration and other terms and conditions. for issue of registration certificate. 3[ 51-C. Development of Colonies.-(l) Subject to the provisions of this Act and the ruies made thereunder. any colonizer. who has been issued registration certificate under sub-section (2) of Section 61-B. may develop a colony,in the Gram Panchayat area. (2) (a) The colonizer shall provide developed plots or constructed dwelling units to the economically weaker section as may be prescribed. (b)The size, number and location of such plots or dwelling units oJ} may be prescribed. (3) Notwithstanding anything contained in this Act, In addition to or in lieu of the plots ()rdwelling units mentioned in clause, (b) oC sub-section (2), the' State Government may imjiose. colleCtand iIullze' , , a shelter fee as may be prescribed.] , _ 51-D. Punishment for Illegal Colonization. - (1)A Colonizer who, in contravention of the provisions of Section 172 of the Madhya Pradesh Land Revenue Code. 1959 (No.20 of 1959) and the rules made thereunder, diverts the land or part thereof, Commits and offence of illegal diversion ofland. (2)AColonizer who divides his land or the land of any other person into plots with the object of establishing a colony in breach of the requirements contemplated in this ACtor the rules made In this b,ehalf,' commits an offence of lllegal colonization. 4((3) Whoever commits an offence of lllegal diversion or illegal colonization shall be punished with imprisonment of not less than three years and not more than seven years., and a minimum fine of ten thousand rupees. Such offence shall be cognizable.] (4) Whoever constructs a building in an area of lllegal diversioll or lllegal colonization commits an offence of lllegal construction. (5) Whoever commits an offence of lllegal construction shall be punished with simple imprisonment which may extend to six months 1 Subs. by MP 21 of2013 [24-4-2013) for words "Sub-Divisional Officer (Revenue)". 2 Subs. by MP 21 of2013 [24-4-2013) for words "Sub-Divisional Officer (Revenue)", 3 S.61-C Subs. by MP21 of 2013 [24-4-2013). See old provisions in "Previous Provisions", given at the end of this chapter. 4 Subs. by MP21 of2013 (24-4-2013). See old provisions in Previous Provisions. • ., (PA)110 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHl., 1993 S.61.A I[CHAPTER-VI_A. COLONIZATION 2[ 61-A. Definitions.-For the purposes of this Chapter,- I I r (a) "Gram Panchayat Area"'means such area which is situated in the Gram Panchayat Definitions within a distance of,- (i) sixteen kilometers from the limits of a Municipal Corporation constituted linder the Madhya Pradesh Municipal Corporation Act, 1956 (No. 23 of 1956); (il)elght kilometers from the limits of a Municipal Council or Nagar Parlshad constituted under the Madhya Pradesh Municipalities Act, 1961 (No. 37 of 1961); (III)three kilometers from the limits of an urban area other than those specified in (I)and (i1)above: (iv)one kilometer from the side of a National Highway specified in or declared under the National HigiJwayAct, 1956 (XLVII of 1(56) or public road notified under Section 2 of the Madhya Pradesh Highway Act, 1936 (XXXIVof 1936): Provided that any area situated within the planning area notified under section 13 of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhlnlyam 1973, (No. 23 of 1973) shall be deemed to be a "Gram Panchayat Area" for the purpose of this Chapter: , (b) ~colony-,means:an,are.awhich,hasbeen,dev.eloped_by_4ividlng~.'_." , the said area into plots and Includes group housing but excludes an area which may have been divided amongst the members of a family, ordinarily for the purpose of constructing dwelling units; (c) "colonizer" means any person, society, Institution or entity. excluding those that may be so notified by the State Government, who intends to take up the work of developing a colony In accordance with the provisions of this Act and rules made thereunder for the purpose of transfer by sale or otherwise allor, some of the plots or the building or part, ther~of._'!I'(1.,!s.,regist"recl_aS_'!.colonl2;er by, theC9mpetenL Authority under this Act.] 61.B. Registration of Coloniser.-(l) Any person who intends to undertake the establishment of a colony In the Gram Panchayat area for the purpose of dividing land into plots, with or without developing the area. transfers or agrees to transfer gradually, or at a time, to persons desirous of settling down on those plots by constructing 'residential, non-residential or composite accommodation shall apply to the 3[such Competent Authority as may be prescribed by State Govemment] for.the gr.ant of aregistralion CIlrtlficate,alongwith a copy ,bflne' resoh1tion l:liilypassed bytJic Gram PiUichayafin support oJthe .. 1 Chapter Ins. by MP43 of 1997 (5-12-1997). 2 Ss.61~A to 61.G ins. by MP 43 of 1997 [5..12-1997} and thereafler S. 61-Asuhs. by MP 21 of2013 [24-4-20131. See old provisIons in "Previous Provisions", given at the_end of lhis chapter. 3 Subs. by MP 21 of 20 13 [24-4-2013] for words "Suh-Divisional Officer {Revenue)". 8.61 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHL, 1993 (PAllO!! a mela: Provided th"t the State Government. may by notification, declare any market or mela to be public market or public mela and the public market or public mela.as the case maybe. so declared shall vest in the Janpad Panchayat. 'I I (21 The State Government may make rules to regulate the market or the mela specified in sub-section (1). Rules:- The State Government has made the followingrules in el<ercise ofthe poWersconferred by this section. These Rules shall be found under Rules given separately: .' "Regulation of Markets arid Melas' Within the Gram Panchayat Areas Rules, 1994." . 59. Powers of Janpad Panchayat to tum, divert, discontinue or close roads.-A Janpad Panchayat may. with the sanction of the prescribed authority. turn. divert. discontinue or permanently close any road which is under the control and administration of. or is vested in the Janpad Panchayat. 60. Encroachment upon road and land vested in Janpad Panchayat.- (I) Whoever erects or encroaches or obstructs any road. street. land. building or structure which vest in the Janpad Panchayat shall on cOllvictionbe punished with a fine. which may extend to I[one thousandriipeesl.' ..... '. ... ., I (2)The CWefExecutive Officershall have power to remove any such obstruction or encroachment and the expenses of such removal shall be paid by the person who has caused the said obstruction or encroachment and on his fallure to pay. the same shall be recoverable as an arrear of land revenue: ' Provided that before proceeding to remove any such obstruction or encroachment. the Chief Executive Officer may. by a written notice. call upon the person who has caused such obstruction or encroachment to remove itwithin the time specified in the'notice. orshow;cause .... as to why the same should not be removed. (3) Nothing in this "ection shall prevent a Janpad Panchayat from allowing any temporary occupation of erection on. the places mentioned in sub-section (I) on occasions of festivals and ceremonies for such period as it may deem fit. in such manner so as not to cause inconvenience to the public or any individual. 61. Powers to' compromise.-A Panchayat may. with the previous sanctions of the prescribed authority. compromise any suit instituted by or against. it or any claim or demand arising out of any contract entered Into it under this A.cton such ~erms as it JI1aydeem fit. 1 Subs. by M.P. 26 of 1994 [30.5.941. • • (PA)lQS PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 S.4[56.A , may be punished with fine, which may extend to I[one thousand] and .ill case of continuing offence with further fine which may extend to ~ltwl'nty rupees] for every day during which such encroachment, "f)Ii~ffuctions or projection continues after the date of first conviction ",kin',stich offence, '(i) Notwithstanding anything contained in sub-section (1), the Qiiill,~Panchayat shall have power to remove any such obstruction or , f;ll'''''(,/tchment and to remove any crop unauthorisedly cultivated on """&\llg or any other land not being private property and shall have , .the)1Kepower to remove any unauthorised obstruction or encroach. 'ment or projection of the like nature in any open site not being private ,p'rqperty, whether such site is vested in Gram Panchayat or not and the expenses of such remoyal shall be paid by the person who has c<tused the said encroachment and on failure to pay such expenses the same may be recovered from such person as an arrear of land revenue: 3[Provided that notwithstanding anything contained in sub-section (1) and this sub-section ifthe Gram Panchayat resolves to remove any hindrances, obstruction or encroachment on any land vested in the State Government it may refer to the Tehsildar to remove such hindrances, obstruction or encroachment from such land and the Tehsildar shallpqlcl'ed to do sounder-the provisions. of the Madhya Pradesh Land Revenue Code, 1959 (No.20 of 1959)]. (3) Notwithstanding anything contained in this section the Gram Panchayat may allow any temporary occupation or erection in or putting projection over any public piace for not exceeding ten days in such manner so as not to cause inconvenience to the public or any individual, on occasions of festivals and ceremonies in accordance with the byelaws made under this Act. (4)The Gram Panchayat shall not pass any order in the exercise of powers under this section -until the person concerned has been given a reasonable opportunity of being heard. 4[56-A. Delegation of powers of Gram Panchayat under Section 55 and 56,-ln case of a Special Economic Zone, the powers of Gram Panchayat under Section 55 and 56 shall be delegated to the Development Commissioner. I 57. Powers to name streets and number of build Ing.-The Gram Panchayat may cause a name given to any street and may also cause a number to be affIxed to any building and from time to time, cause such name of.streets and number of buildlhgs to be altered. 58. Regulation of markets and melas. -(1) Save as provided in the Madhya"Pradesh KrIShiUpaj MandL<l:dhirtlyaii1:19n (No.24 on973J, no person except Gram Panchayat shall within the Gram Panchayat area set up. establish or use any place for the purpose of a market or ; I Subs. by M.P. 26 of 1994 [30.5.94J. 2 Subs. by M.P. 26 of 1994 [30.5.94J. 3 Subs. by MP Act 28 of 1998 [4-9-1998J. 4 Ins. by MP Act 18 of 2007 w.e.f. 25-5-2007. \ j • 8.56 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHl., 1993 (PA)107 (2)If any person erects. alters. adds to or reconstructs allYbuilding without the permission of Gram Panchayat and contrary to any such conditions under which permission has been granted the Gram Panchayat may by WIitten notice direct such person to stop the erection. alteration, addition or reconstruction and to alter or demolish such erection, alteration, addition or reconstruction, as It may deem necessary In the public Interest within a period specified In notice. (3) If any person falls to comply with the dlrectlOJjs contained In the notice served under sub-sec,tlon (2)by the Gram»8.nchayat within the peIiod specified In such notice, the Gram Panchayat may, Itself take such 'lctlon as required to be done by such persons at the expense of such person which shall be paid by him within thirty days from the date on which a demand notice has been served by the Gram Panchayat. On failure to pay the expenses within specified peIiod, the same shall be recovered as an arrear of land revenue. '., I((3-A) Notwithstanding anything contained In sub-section (3) whoever contravenes any provision of this section or the rules or byelaws made thereunder or the conditions of permission granted by the Gram Panchayat or falls to comply with any lawful directions or requisition made under any of the said provisions may be prosecuted by the Gram Panchayat or the officer authoIised by the State Government for this purpose and on conviction he shall be punished with simple Imprlsomn"nt wl1l!'l1il1ay extend. to siJ<moIlthsorwithfilJe, which may extend to two thousand rupees or with both, and In case of continuing offence with further fine which' may extend to two hundred and fifty rupees for every day during which the offence continued after the date of first conviction,] (4)An appeal may be preferred to the prescribed authoIity from any direction or notice of the Gram Panchayat under sub-section (2) and the decision ,ofthe prescIibed authoIity on such appeal shall be final. 56. Hindrances. obstructions and encroachment upon public street and open sites~-(l) Whoeverwitll.lnthe Gram,panchayatarea causes any hindrance: obstruction or encroachment over any public street or open site or upon any drain In such street- (a) by building or setting up any wall, fence, rail, post, stall, verandah. platform, plinth, step or any other structure; or (b) without WIitten permission of the GramPanchayat or contrary to the conditions mentioned In such permission by putting up any verandah, balcony, room or other structure so as to project over any public street or upon any drain In such street; or \ (c) by unauthorlsedly removing earth, sand or other mateIial from any site; or (d) by unauthoIisedly cultivating any grazing or other land, I Ins. by M.P.Act 5 of W99 15.4.19991. (PA)I06 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 8.54 COMMENTARY As provided in Schedule IV-5, fishing lease granted by the District; Panchayat is as per guidelines of the State Government. Matsaya Udyog Sahakari Samiti v. State of M.P., 2007(2) MPWN 63. , Rules:- The State Government has made the followingrules in exercise of the powers conferred by this section. These Rules shall be found under Rules given separately. "Panchayat Shiksha Karmis (Recruitment and Conditions of service) Rules, 1997" POWERSOFPANCHAYATS 54. Powers of Gram Panchayat as to public health facilities and safety.-Subject to the rules as the State Government may make in this behalf the Gram Panchayat shall have power:- (I)to regulate the offensive or dangerous trade; (iiIto remove the structures and trees; (iii) to maintain the sanitation, conservancy, drainage, waier works, sources of water supply; (Iv)to regulaJe the use. of water;, .._ " .. ".,- M to regulate '~la~ght.~r~Tarli~als;' , , (vi) to regulate establishment of workshops, factories and other industIial units; (vii)to ensure environmental control; and (viii)to carry out such functions as are necessary by or under the provisions of this Act. Rules:- The State Government has made the followingrules in exercise of the powers conferred by this section. These Rules ,~hallhefound under ' Rules given separately. ,.", ""' .. ,- 1. "Gram Panchayat (Regulation of Slaughter House) Rules, 1998" 2. "Gram Panchayat (Regulation of Offencive or Dangerous Goods Trades) Rules, 1998" 3. "Gram Panchayat (Power relating to removal of structiures and trees) Rules, 1999" 4. "Gram Panchayat (Sanitation, Conservancy and Prevention and Abatement of Nuisance) Rules, 1999". . :55.,Control of erection ofbuildlng.J(l) Subject to the provisions of this section no person shall erect any building or alter or add to,any ...j;Xisting_buildiRgor reconstruct, any 'bulldlflg Without the pei ntlssion in writing of the Gram Panchayat and except in accordance With byelaws made in this behalf under this Ad. Permission shall be presumed to have been granted if no refusal'of such permission is communicated by the Gram Panchayat within forty five days of the receipt of the application. • • • • 8.53 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PAlI05 Zila Panchayat of the district and all the assets and liabilities and functions of the said Agency shall stand transferred and be vested in •. and be discharged and performed by the Zila Panchayat concerned. (b)Notwithstanding anything contained in this Act. or any rules or byelaws made thereunder. the pay. allowances and other benefits of all permanent employees of District Rural Development Agency. on the date of commencement of this sub-section shall be the existing pay. . allowances and other benefitsl. COMMENTARY Sub.section (1), clause (xii).- An employeeof one Gram Panchayat cannot be transferred to another Gram Panchayat. Power of Janpad Panchayat cannot beequated to that ofthe State Government under S.58(5) ofM.P.Municipal Corporation Act.Biharilal Jaiswal v. State of M.P., 2002 (2) MPHT 77. 53. Power of State Government in relation to functions of Panchayats.-1[(11 Ha).subject to such conditions as may be specified by general or special order issued by the State Government. the Panchayat at the appropriate level shall be entrusted such powers. alongwlth budget and staff as may be necessary to enable them to function as instituti()n of self Government in relation to matter lIsted . in Schedule IV, including' preparation of plans.'firiplemeritation'.of.. .. schemes for economic development and social justice and other duties and functions assigned to them under sections 7. 49. 49-A, 50. 52 and Chapter XIV-A.] (b) The State Government may by notification endow Panchayats at the appropriate level with powers and responsibilities for the selection. recruitment. appointment and management of any cadre or cadres of employees required for the efficient implementation of schemes. subject to the staffing pattern approved by the State Govern- . ment and such other conditions as-it may deem fit]._ . (2)The State Government may. by general or special order. add to any of the functions of Panchayats or withdraw the functions and duties entrusted to such Panchayats, when the State Government undertakes the execution of any of the functions entrusted to Panchayat. The Panchayat shall'not be responsible for such function~ so long as the State Government does not ..re-entrust such functionb I,) the Panchayats. \ 1 Sub-sec. (1) Subs. by MP 43 of 1997 (2-10-1997H and thereafter el.(a) of sub-sec. (1) again subs. by M.P. Act No. 26 of 2012 [23-5-2012). Before substitution Cl. (a) was as follows:- . ". (a) Subject to such conditions as may be specified by general or special order issued by the State Government. the Panchayat at "the appropriate levei shall have the .powers and authority as may be necessary to enable them to function as institutjons of self government in relation to m~tters listed in Schedule IV, including preparation of plans, implementation of schemes for economic development and social justice, and other duties and functions assigned to them under Sections 49. 49-A. 50, 52 and Chapter XIV-A." " .. • •• • (PA)104 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 8.52 Government; (iii) co-ordinate, evaluate, and monitor activities 'and guide the Janpad Panchayat and Gram Panchayat; (iv) ensure overall supenrision, co-ordination and consolidation of the plans prepared by the Janpad Panchayat; . (v) ensure the execution of schemes, works. projects entrusted to It by any law and those assigned to It by the Central or State Government; (vi) ensure the execution of transferred or delegated functions. works. schemes and projects ofthe Central or State Govern- ment; (vII) reallocated to Janpad Panchayats and Gram Panchayats the funds made available by Central or State Government pertaining to the transferred functions works, schemes and projects, as per the norms fixed by the Central or State Government; (vIII)co-ordinate the proposals for grants for any speCialpurpose received from the Janpad Panchayat and forward them to the State Government; (Ix) secure the execution of plans, projects, schemes or other works common to two or more Janpad Panchayats; (x) execute 'works.' .schemes' 'and 'projects throliglf'Grarrf"" Panchayat or through the executing agencies transferred by the State Government to 'Pahchayats. Irrespective of their source of fund; [ (xl). advise the State Government tin development activities, protection of the environment, social forestry, family welfare, welfare of the dlsabied, destitute, women, youth, children and weaker sections of the society; (xli) administer and control the employees appointed and posted .in, I'anchayats including staff transferred by-the State'-Government to the Panchayals; Explanation.-The administration and control of the staff transferred by the State Governments shall Include the exercise of such power as may be defined by the State Government from time to time by special or general order; (xiII) take all necessary measures to mobilise the resources by exercising the powers entrusted to It by any law-or the Central or State Government;, .(xiv) exercise and perform such 'othe" powers and functions as the State Government may confer or entrust upon It]. IH2)(a) Notwithstanding anything' cohta:iiled in' the Madhya Pradesh Societies Registrlkaran Adhlniyam, 1973 (No.44 of 1973) or any other State enactment for the time being In force, the District Rural Development Agencyof the district shall stand merged with the 1 Subs. by MP43 01199712-10.1997]. .. ..• ~. •••~!' . ,'. 8.52 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)103 ment block within its jurisdiction, as the case may be, and the functions and schemes assigned to such block by the State Government shall be implemented under the supertntendence, directions and "control of the Janpad Panchayat in accordance with the instructions ' issued by the State Government from time to time. Rules.-The State Government has made the following rules in exertse of the powers conferred by this section. These rules shall be found under Rules given separately. "JANPAD PANCHAYAT (MANAGEMENT OFFERRJES) RULES, 1999" 51. Entrustment of certain functions of State Government to Janpad Panchayat.-(I) The State Government may entrust, to a I[Janpad Panchayat ,or Zila Panchayat] functions in relation to any matter to which the executive authortty of the State Governmenl extends or in respect of functions which have been entrusted to the State Governm~nt by the Central Government and the 2[Janp~(', Panchayat or Zila Panchayatl shall be bound to perform such fUllctions. It shall have necessary powers to perform such functions. (2) Where functions are entrusted to a 3[Janpad Panchayat or Zila Panchayat]under sub-section (1), the 4[Janpad Panchayat or Zila Panchayat] shall in the discharge of those functions, act as an agent of the State Government. (3) There shall be paid by the State Government to the 5[Janpad Panchayat or Zila Panchayat] such sum as may be deemed necessary fot discharging the functions entrusted to it under this section ..' (4) The 6[Janpad Panchayat or Zlla PanchayatJ shall, for the purposes ofdischarging the functions entrusted to it under this action, be under the general control of the State Government or any other authortty appointed by it and shall comply with such directions as may from time to time be given to it. ' 52. Functions ofZila 7[Panchayatl ..8[(I)subjectto the provisions ofthis Act and rules made thereunder and subject to policy, directions, I instructions, general or special orders as may be issued by the State Ii' to-Government fromtime to time, it shall be the duty ofZila-Panchayat - ---- (I) prepare annual plans for economic development and social justice of the distrtct and to ensure the co-ordinated implementation of such plan in respect of the matters transferred to Panchayats; (ii) prepare annual plans in respect of the schemes entrusted to it by the Law and those assigned.' to. it by the Central or State 1 Subs. by MP 43 of 199715-12-19971. 2 Subs. by MP 43 of 1997 15-12-1997J. ~ Subs. by MP 43 of 1997 15-12-1997J. 4 Subs. byMP 43 of 199715-12-1997). 5 Subs. by MP 43 of 1997 [5-12-1997). 6 Subs. by MP 43 of 1997 15-12-19971. 7 Subs. for "Parlshad" by MP 26 of 1994 130-5-19941. 8 Subs. by MP 2 of 1997 [7-1-19971. Iii' .Ii,, \ (I'A)102 PANCHAYAT RAJ AVAM GRAM SWARM ADHI., 1993 8.50 i "'1 ,, shall be the duty of the J anpad Panchayat to- (i) prepare the annual plan in respect of the schemes of economic development and social justice entrusted to it by the Act and those assigned to it by the State Government or the Zila Panchayat and submission thereof to Zila , Panchayat within the prescribed time for"integration with I. the district Panchayat plan; (Ii) consider and consolidate the annual plan in respect of the scheme of economic development and social justice of all Gram Panchayat and the Janpad Panchayat and submission of the consolidated plan to Zila Panchayat; (iii) prepare plan of works and development schemes to be undertaken from Janpad Panchayat Fund; (iv) undertake regional planning and infrastructural development within the Janpad Panchayat; (v) sanction. supervise, monitor and manage the works of development schemes fromJanpad Panchayat funds and for this purpose incur expenditure therefrom; ! (vi) ensure the execution of schemes, works. projects entrusted to it by any law and those assigned to it by the Central or State Government or Zila Panchayat; (viI) Implement; execute; supervise,:monitor,and.manageW9rk~." ., schemes Programmes and projects through Gram Panchayats or through executing agencies, transferred by the State Government to Panchayats; (viiI) recommend for the consideration of Zila Panchayat any works or'development schemes which could be taken up by the Zila Panchayat in the block. and indicate the extent to which local resources are likelyto be available in such works or schemes; (ix) co-ordinate and guide the-Gram Panchayats within the block; (x) secure the execution of plans. projects. schemes or other works common to two or more Gram Panchayats in the block; (xi) reallocate to Gram Panchayat funds made available by Central or State Government or the Zila Panchayat pertaining to the transferred schemes, works and projects as per the norms fixed by the Central or State Government or the -ZilaPanchayat. as the case m,w1be; (xii) take all necessary measures to mobilise resources by exercising the powers entrusted to it by any law or the Celltral or the State Government; (xiii) exercise and perform such other powers and functions as , the State Government may entrust toiL] -. (2) The Janpad Panchayat shall' control and supervise the ad- ~ ministration of the cqmmunity development block or tribal develop- • .- 8.50 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)IOI State Government or Zila Panchayat or Janpad Panchayat; I[x x x) 2[(ix) consider the application for eslablishment of colonieg falling within the Gram Panchayat area as defined in section 61- A;) s[x x x) (xv) to exercise control over local plans resources and expenditure for such plans.) 4!(xvi) co-ordinate, evaluate and monitor activities of committees constituted by Gram Sabha. . (xvii) re-allocate to Gram Sabha the funds made available by the Central Govcrnment or State Government, pertaining to functions assigned to Gram Sabha, works, schemes and projects as per the norms fixed by the Central Government or Slate Government.) \ 50. Functions of Janpad Panchayat.-(l) Subject to the provisions of this Act and the rules made ,thereunder, and subject to general or special orders, as may be issucd by the State Government, from time to time, it shall be Ihe duty of a Janpad Panchayat, so far as the Janpad Panchayat funds allows to make reasonable provision in the block for the following matters:- I I I I (aJ Integrated Nural Development, Agriculture, SocialFbrestry, Anlnial Husbandry- and F!sliciie's,'Health ilndSanftaffori, Adult Education, Communication and Publ!c Works, Cooperation, Cottage Industries, Welfare ofWomen, youth and children, welfare of disabled and the destitutes and welfare of backward classes, family planning and sports and rural employment programmes; (b) provision of emergency rel!ef in cases of distress caused by fires, floods, drought, earthquake, scarcity, locust swarms, epidemics and other natural calamities; (CJ arrangemeiitiii connection wilh local pllgrimage- and fes- tivals; , (d) management of public ferries; (e) management of publ!c markets, pu6l!c'melas and exhlbi- tions;and (0 any other function with the approval of the State Government or Zila Panchayat. 5[(1-A)$ubject to the provisions of thls,'Act and rules made thereunder and subject to Pol!cy,directions, instructions, general or special orders as may be Issuedby the State Government from time to time, it 1 Items (vi)to (viii)omitted by Act 3 of 2001, w.e.f.26~1-2001. 2 Ins. by MP43 of 1997[5-12-19971. ' 3 Items (x) to (xlv) omitted by Act 3 of 2001, w.e.f.26-1-2001. 4 Added by Act 3 of 2001. w.e.f.26-1-2001. 5 Ins. byMP20f 1997 [7-1-1997). .: ,r 8.49 (PAlIOa PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 49. Functions of Gram Panchayat.-It shall be the duly of a Gram Panchayat in so far as the Gram Panchayat funds allows to perform within its areas the following functions:- 1Ix x xl (18) establishment, management and regulation of markets and melas other than public markets and public melas: 2[x x xl. COMMENTARY Ss.49 & 50-M.P.Minor Mineral Rules, 1996, Rr.6 & 7._The powers vested with Gram Panchayat under the rules, cannotbe exercisedbyJanpad Panchayat under executive instructions. No rights conferred by acting on such instructions. Writ Court has jurisdiction to mould the relief. Gram Panchayat Parei v. State of M.P., 2002 (1) JLJ 73. Rules:' The State Government has made the followingrules in exercise of the powers conferred by this section. These Rules shall be found under Rules given separately. 1. "Gram Panchayat (Sanctin of Loans to The Indigent Persons) Rules, 1995" 1998", 2. "Gram.. Panchayat. . . . (Regulatiol1cofSale. ... . .. ifMeat (lnd Preservation).... .. Rules,- ... 3. "Gram Panchayat ~(Regulating places for disposal of deqd bodies, caracases and other offensive matter) Rules, 1998" . Model Byelaws:- The State Governmenthas also made various model byelaws in.exercise ofthe powers conferred by this section. These byelaws shall be found under Model Byelaws givenseparately. 3[49-A. Other functions of the Gram Panchayat.-Subject to the provisions of this Act and rules made thereunder and subject to policy, directions, instructions, general or special orders as may be issued by the State Government from time to time. It shall be duly of the Gram P<lllchayat to- (i) prepare annual plans for economic development and social justice of Panchayat area and submission thereof to the Janpad Panchayat within the prescribed time for integration with the Janpad Panchayat plart: 4[X x xl " L- (v) ensure the execution of schemes, 'works, projects entrusted .. -"to it' ..by- --'-'any._law.•.....--~"and those..... assigned. ".' - to it. by- -the Central or I Items (1)'to (17)-omitted by Act 3-of 2001. w.e.f.26-1-2001. 2 Items (19) to (29) omItted by Act 3 of 200 I. w.eJ.26-1-2001. 3 Ins. by MP 2 of 1997 [7-1-1997{. 4 Items (ii) to (iv) omitted by Act 3 0(2001, w.e.f.26-1-2001. • . .' •• .. S.48 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)99 2. Election delayed for constituting Standing Committee of Jan. pad Panchayat by two days- Holding of election, not without juris. diction.' The Panchayat Raj Adhiniyam does not contemplate that if there is a delay in holding the meetings or elections, the committees cannot be constituted at a later date. There is no other provision which gives an alternative in the event of non. constitution of 1he Standing_Committees. Unless the provision is accompanied by some pellal consequences, the same cannot be held to be mandatory. The provision can only be said to be directory. Simply because the elections were held two days after the prescribed period for constitution of Standing Committee, the holding of election cannot be said to be without jurisdiction. Harisingh Patel v. Janpad Panchayat, 1996 MPLJ 418. 3. Rules:. The State Government has made the following rules in exercise ofthe powers conferred by this section.These Rules shall be found under Rules given separately. "Janpad Panchayat and Zilla Panchayat Standing Committees IElection of Members, Powers and Functions and Term of Members and Procedure for the Conduct of Business) Rules, 1994." 1147-A. Resignatlon.- A member of Standing Committee other than General Administration Committee and the Chairman of a Standing Committee other than cthe.General Administnition and -EducaJiorr . Committees may resign by tendering his resignation in person to the President of the Janpad Panchayat or Zila Panchayat, as the case may be, and his resignation shall take effect from the date of its receipt by the President. . 47-B. Disputes regarding validity of election of Member or Chairman.-(l) The provisions of Section 122 relating to election disputes and rules made thereunder shall apply mutatis-mutandis in relation to election of Member of chairman under section 46 and 47. (2) All legal proceeding relating to such election Q1spiltes pending before the State Government and its subordinate officers, shall stand transferred to the specified officers having jurisdiction under section 122.] 48. Powers and duties of Sarpanch, Up.Sarpanch, President, Vice- President ..The Sarpanch and Up-Sarpanch and the President and Vice-President shall exercise such \powers and perform such. functions, as may be prescribed. Rules:. The State Government has made the followingrules in exercise of the powers conferred by this section. These Rules shall be found under Rules given separately. "Powers and Functions of Sarpanch and Up-sarpanch of Gram Panchayat, Presi.dent and Vice.president of Janpad Panchayat and Zilla Panchayat Rules, 1994: . . I Ss.47-Aand47-B.lns. by M.P.39 of 1995119.12.1995J. PANCHAYAT RAJ,AVAM GRAM SWARAJ ADHI., 1993 8.47 (PA)98 l[X x xl 2[(4_A)(a) Every member of the Legislative Assembly who Is a member of Janpad Panchayat; shall be ex-officio member of each Committee of that Panchayat; (b) Every Member of Parliament who is a member of a Zila Panchayat shall be ex-officio member of any two Committees of his choice In that Panchayat; and (c) Every Committee of Zila Panchayat shall co-opt not more than two members of the Legislative. Assembly who are members of that Panchayat, subject to the condition that a member of the Legislative Assembly shall not be member of more than two Committees.] 3[(5)Every Committee except the General Administration Committee and the Education Committee shall elect from amongst Its elected members a Chairperson within such time and in suth manner a~ may be prescribed: Provided that(I) The President of the Janpad panchayat or Zila Panchayat, as the case may be, shall be officio Chairperson of the ___General Admlnlstr"tion Committee; (i1) the VI~e -Pi-esident~fthi:Ja-;"pad P,uicbaya:f(jtZila~~ Panchayat, as the case may be, shall be ex officio-Chairperson of the Education Committee; and (iii) the President and Vice-President of the Zila Panchayat and Janpad Panchayat, as the case may be, shall not be member of any Committee other than the Committee of which he Is the Chairperson by virtue of clauses (i) and (i1)of this proviso.] (61Every <::o!,unltleeshall, In relation to the subject assigned to It exercise such powers and l'erlormsuch-<ifthe functions ofthe-Janpad"Panchayat or Zila Panchayats as the case may be, as may be prescribed. (7) No person shall be.a member of more than three committees other than General Administration Committee at a time. COMMENTARY 1. Education Committee not entitl~d to make every appoint- ment.-An Education Committeewouldbe constituted for education indud'lng adult:-education etc. biIf"that does not 'mean that Such Education .J;:9!!,p;!-i~"e,,~hapbeentitled to make every appointment. When the State Government is entitled t6 exe-rCisegeneral'powers of superintendence as provided in Section 53 and Section 86 and other allied sections to have control over the Panchayats then the State Government would be entitled to issue such directions. Ajay Tripathi v. State of M.P" 2009(1) MPLJ 75 =2009 (1) JLJ 257 = 2008 (5) MPHT 195 (DB.). 1 Third proviso inserted by MP 26 of 1994. omitted by MP 39 of 1995. 2 Ins. by M.P. 39 of 1995 [19..12.19951. <"'•••.•• - "'-iII~h•• ~1n1":: fif lQQfl9nn "'dotJ'Fl hy MP ~? of 199417.10.941. (PA)96 PANCHAYAT RAJ AVAM GRAM SWARAJ ADH1., 1993 8.45 :i i : can call a meeting and in case none ofthe above eventualities happens and if members are keen to discuss the matter then they can requisition the calling ofa meeting. Where after calling a meeting ofthe Gram Panchayat, the Sarpanch lockedthe panchayat premises, it wouldnot giveany authority to Upsarpanch to hold the meeting at another place. This is because notice regarding place ofmeeting is to be given to other members also. The notice is not only with regard to agenda but also with regard to place ofmeeting. Under the circumstances any meeting so held at another place cannot be said to be a valid meeting and the resolution passed thereat will not be effective.Ramkishan v. State of M.P., 1998 (1) MPLJ 589. 'I! : ' I 2. Rules:- The State Government has made the followingrules in exerciseofthe powers conferred bythis section.These Rules shall be foundunder Rules given separately. . , "Procedure of Meeting and Conduct of Business Rules, 1994." 45. Reconsideration of subjects finally disposed of by \ Panchayats.-No subject once finally disposed of by Panchayat shall within six months be reconsidered by it unless the recorded consent of not less than three fourth of its members entitled to vote has been . " obtained thereto or unless the 'prescribed. authority has .directed!ts -- . reconsideration. ! SUBORDINATE AGENCIES 46. Standing Committees of Gram Panchayat.-(l) A Gram Panchayat rna)' for discharging its functions and duties, constitute standing committee not exceeding three and such committee shall exercise such powers as may be assigned to them by the Gram Panchayat. The committee shall be under the general control of the Gram Panchayat. . (2) No person shall be a member of more than two commlttees ata time. (3) The term of office of the members of standing committee and the procedure for the conduct of business of the standing committee shall be such as may be prescribed. Rules:- The State Government has made the followingrules in exercise. of the powers conferred by this section. Th~se Rules shall be found under Rules given separately. "Gram Panchayat (Term ofOJfice of Members of Standing Committee and procedure for the Conduct of Business) Rules, 1994' 47. Standing Committees of Janpad Panchayat and Zila Panchayat.- (I) Every Janpad Panchayat and every Zila Panchayat shall from amongst Its 1[elected members) constitute the following standing committees, namely:- 1 Subs. by M.P. 26 of l!J~H 1:10.5.94). 8.44 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)95 shall be posted in the office of the Panchayat. No quorum shall be necessaI)'. for sUfh postponed meeting. and no new subject for consideration may be brought before such meeting. (4) The President or Sm'panch shall call a meeting of Zila Panchayat. Janpad Panchayat or GraIn Panchayat. as the case may be. atleast once every month. If the President or Sarpanch fails to call the meeting in any month the l[the Chief Executive Officer of the Zila, Panchayat or Janpad PanchaY'lt or Secretary of the Gram Panchayat as the case may be] shall issue a notice ofthe meeting of the Panchayat concerned as soon as twenty five days elapse after the date of the last meeting. . (5) A report about the income and expenditure of the Gram Panchayat between the period oflast meeting and the current meeting as well as the cumulative income and expenditure in the current financial year up to the current meeting shall be placed before the Gram Panchayat. in addition to any other subjects. by the SecretaI}' of Gram Panchayat and such report shall be discussed by the Gram Panchayat. In case of Janpad Panchayat and Zila Panchayat such report. shall be 'placed 2[by the Chief Executive Officer] in its meeting once in three months.3 [The report of income and expenditure shall be prepared according to the approved annual budget estimate alongwith .the comparative statement of figures which shall be placed in the meeting by.the Chief.Executive Officer.] ". -, (6) If more than Hftypercent of the members of the Panchayat give requisition in writing for a sped'll meeting of the Panchayat. the President or Sarpanch, as' the case may be. shall call such a meeting Within seven days of receipt of such requisition. If the President or Sarpanch as the case may be. fails to call the meeting on such requisition the members who have given requisition of a special meeting may call the meeting themselves and thereupon 4[the Chief Executive Officer of the Zila Panchayat or Janpad Panchayat or th.e SecretaI}' of .the Gram Panchayat as the case maybel.-shalUssue notice of the meeting. (7) Ifthe President or the Sarpanch. as the case may be, fails on at least three occasions to act in accordance with sub-section (4) or sub-section (6). he shall be liable to be removed from his office under Section 40 and the provisions of Section 40 shall be applicable to him. who has been so removed. I I I I I I I I COMMENTARY 1. Meeting of Gram Panchayat.Vali4ity of proceedings.-The power to call the meeting of Gram Panchayat vests in the Sarpanch. If for anyreason,.he doesnot callthe meetingthen the Secretary ofthe Panchayat 1 Subs. by M.P. 26of 1994[30.5.941. 2 Subs. by M.P. 26of 1994[30.5.94). 3 Substituted by M.P.Act No.26of 2012[23,5-2012Jfor the following:"The reports shall be prepared in such manner as may be prescribed. ~ 4 Subs. by M.P. 26of 1994[30.5.94). I I I I (PA)94 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 S.42-A Rule 36.State Election Commission M.P. v. Ras Bihari, 1995JLJ 651=AIR 1995 MP 245 (DB). ; I[42-A. Power to appoint officera and staff and to assign duties and functions to them.-(l) In the exercise of powers under Section 42, the State Election Commission may, in consultation with the State Government, appoint officers and members of staff for conducting elections to panchayats. (2) The State Election Commission may assign such' duties and functions to officers and members of staff appointed under subsection (1) and invest such officers and members.of staff with such powers and in relation to such areas as it may deem necessary or consider fit in relation to conduct of elections and matters connected therewith or incidental thereto.) .2[43. Power to make rules.-The State GO\'crnment shall in consultation with the State Election Commission make rules for the preparation of Electoral rolls and conduct of all Elections to the Panchayats.] COMMENTARY 1. Nomination paper accepted- Acceptance cannot be set at naught- Rule 35(8).- There is no provisionin the '1')es.whkhempowets the Returning Officeror ,my other authority to reject nomination paper which was earlier accepted by a person acting as a Returning Officer. Ranvirsingh v. State of M.P., AIR 1995MP 271. 2. Rules:- The State Government has made the following rules in exercise ofthe powers conferred bythis section.These Rules shall be found under' Rules given separately. "PANCHAYAT NIRVACHAN NIYAM, 1995" 44. Procedure of meeting,-(l) Subject to the proVision of this Act, the procedure of meeting and conduct ofbusiness of a Panchayat shall be such as may be pres('ribed. (2) The chair person of a Panchayat and other members of a Panchayat whether or nol chooses by direct election from territorial constituencies shall have the light to vote In the meeting of the Panchayats. . (3) 31The quorum for a meeting of Zil~ Panchayat and Janpad Panchayatshall be one-third, and for a meeting of Gram Panchayat shall be one-half, of the members constituting the concerned Panchayat for the time being]. If there be no quorum present at a meeting. the presiding authOrity shall, adjourn the meeting to such date and hour as may be fixed by It. A notice of the meeting so fixed f Ins. by M.P. 26 01 1994 (30.5.94]. 2 Subs. by M.P. 26 01 1994 (30.5.941. 3 Subs. by MP 43 of 1997 [5-12-19971. 8.42 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)93 (3) Any Intimation under sub-section (1) shall be final and Ir- revocable. (4\ For the purposes of this Section a person shall be deemed to be elected on the date of declaration of the result. 42. Commission conduct of Election.-The superintendence, direction and control of the preparation of electoral rolls for and the conduct of all elections to he Panchayats shall be vested In the State Election Commission. COMMENTARY 1. Countermanding of election by State Election Commission. Validity andjurisdiction.-Article 243.K ofthe Constitution and seetin 42 vest in the Commission, superintendence, direction and control of the preparation ofelectoral rolls for, and the conduct of,election and Rule 17(3) of the Rules confers on the Commission power to issue such special or general orders or directions which may not be inconsistent with the provisions ofthe Act for fair and free elections. Rule 33(6) declares that the order accepting or rejecting the nomination paper passed by the Returni ng Officer shall be fmal. Article 243-0(b) is enacted to prescribed manner in which and the stage in which this ground and other grounds which may be raised in law to ~all the. electioninquestj.on_~QJll<lPel'aise<i,By,n"c~ssary" implication, it fbllowsfrom the language ofthe provision that the:;;' grounds cannot be urged in any other manner or at any other stage and before any other court. The scheme ofArticle 243-0(b)read in the light ofRule 33(6) is that the decision of the Returning Officer shall be final, subject to review only by the Election Tribunal in a duly filed election petition. The order passed bythe Returning Officeraccepting or rejecting the nomination paper is not susceptible to review at any other stage or by any authority other than Election Tribunal. It is significant to note that the rules do not provide an appeal to the Commission or revision suo motu or otherWIseto the Commission against the order ofthe Returning Officer;These clrcurllstances'make it clear that whatever be the amplitude ofthe power vested in the Constitution under ARticle 243-K and section 42 of the Act, it does not take in the power of upsetting the final decision arrived at by the Returning Officer accepting or rejecting the nomination paper. The Election Commission has no jurisdiction to interfere at that stage in that matter. The power of countermanding the poll leading to fresh election cannot be exercised in the case of rejection of nomination papers of all candidates except one particularly in view of Article 243-0(1)and rule 33(6) of the Rules. Wrongful ~ I, ,-, .~c£eptap~eo!reje~ti!l)l_ofgo..min",tiollpapeds a,gr0lln!lwhich could be urged in election petition. State Election Commission v. Ras Bihari, 1996 MPLJ 966. -.(DB). - 2. Jurisdiction of Election Commission.- Where some nominatiOn 1'''1'''''' are rejected by the Returning Officer, resulting in leaving one candid"le only in the field, the order cannot be challenged or suo motu revised by the Election Commission. The order of the Returning Officer is final subjecl to an order passed in revision bythe prescribed authority under .. • • . . - . ,(PA)150 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 8.91 • 2008(1) JLJ 329 = 2008(1) MPHT 254[DB]. [4] Challenging to resolntion • S.91 not applicable. suo motu powers ofthe State Government or Prescribed Authority.-It is worth noting that certain resolutions of the Gram Panchayat are assailable in a different manner as provided in other provisions of the statute. The resolutions which would have been specifically challengeable in a different manner under the Act would not come under the purview of section 91 but other proceedings of the-Gram Panchayat can be challenged by the substantive provision. Tl)e State Government has not framed rules by providing a forum. Under these circumstances it would be apposite and seemly to hold that the Person' aggrieved can bring his grievance to the notice of the State Government and the State Government should take a decision under section 85 of the Act.While taking the said decision the State Government shall be guided by the concept ofpromptitude which is an intrinsic and inseggregable facet of suo motu exercise ofjurisdiction. Be it noted, while exercising suo motu power under section 85 of the Act the State Government shall be guided by the parameters provided therein and the nomenclature given to a proceedillg under section 85 of the Act. Sagar Machhua Sahakari Samiti, Seoni v. Chief Executive Qfficer, Janpad Panchiiyilt, Seani & Anr., 2008(2) MPW _- 194 =AIR 2008 (NOC) 1388 = 2008(1) JLJ 329 = 2008(1) MPHT 254[DB]. [5]From the intent ofthe Adhiniyam, ~o powers are confe~edupon theauthorities for cancelling the resolution in a proceeding under S.91 of the Adhiniyam. Resolutions ofPanchayats cannot be set aside. Sagar Machhua Saha/wri Samiti, Seoni v. Chief Executive Officer, JanpadPanchayat, Seoni & Anr., 2008(2) MPLJ 194 = AIR 2008 (NOC) 1388 = 2008(1) JLJ 329 = 2008(1) MPHT 254[DB]. [6]Appeal shall lie &Appellate Authority have necessary powers .-The provisions of an Act cannot be interl'reteu oy referencet,dhe-provisions of a Scheme made by the Government to give effect to the provisions of the Act, but has to interpreted by reference to the provisions of the Act. Hence an appeal would lie against an order of appointment ofPanchayat Karmi issued by Sarpanch ofGram Panchayat under Section 91 ofthe Adhiniyam read with Rule 3 ofthe Rules of1995. Held, while deciding the appeal, the Appellate Authority will have all necessary powers to grant relief in a case where he decides to allow'the appeal and such powers will also include the power to decide whether the selection made by the Gram Panchayat by-adopting a resolution was not correct either on facts or in law. Further held that the view taken by the learned Single Judge in Ramlakhan _Rawat v.,State of M.P., 200.Q(2).MPLJ 176 = 20010) JLJ 280, is not correct --in jaw, [OVERRULED]. Devidayal Raikwar v. State of M.P., 2009(1) JLJ 7 = 2008(4) MPLJ 647 = 2008(3) MPHT 505[DB]. [7] Objection at last stage, reje.ctable.-Gram Panchayat Ka~mi ap- pointed by majority <ifvoting not onmerit hence selection process vitiated. Further an objection towards maintainability of the appeal raised by the petitioner at the last stage of final arguments also rejected for the reason that it was not raised before all three authorities below and also not even in writ petition. Praiapal Sinah -v. St"te of M-P ~O.O.9fl)MPT 1 GdO = • 8.91 PANCHAYAT RAJ AVAM GRAM SWARAJADHI., 1993 (PA)149 the State Government brought to the notice of this Court a INotification dated 30th January, 1996. This Notification has been issued by the State Goverriment in exercising the powers, conferred on the State Government under Part "5 of Rules of Business. On the basis of the aforesaid, it is clear that the State Government under the Supplementary Instructions No. 13 of Business Uules has conferred the power on the Honble Minister to exercise the revisional jurisdiction under the Panchayat Raj Adhiniyam, 1993. According to the same, the Hon'ble Minister shall exercise the powers against the orders passed in appeal/revision. Paragraph 2 of the aforesaid Notification also indicates that against the orders passed by the Commissioner exercising the appellate/revisionaljurisdiction, the Hon'ble Minister, Panchayat and Village Development Department shall exercise the power to hear the case. Therefore, the Minister's order Annexure P-2 to the petition is proper and second revision thus would be maintainable. Dilip Kumar v. State of M.P., 2006(3) MPLJ 38. 4. Appeal or revision.-[l]1ffaintainability of Appeal.-Appointment of petitioner as Panchayat Karmi by resolution. Under Section 91 of Act, order appointing Panchayat Karmi is appealable and not a resolution. Rajkumar Kushwaha v.State ofM.P., 2013(1) MPLJ 238 =2013(1) MPWN 24 = ILR 2013 MP 53. [2)Termination of services ofPanchayat Karmi by passing a resolution. No further orders were issued and instead the services of respondent No.5, PanchayatKatmi were bt6tight W an' end by'the said tesolutiim: itself. The''', "".,' resolution in substance amounts to an order. Appeal against the said resolution was maintainable before the SUO'. Chandrakant Kushwaha v. Collector,Katni, 2011(3) MPLJ 196 = 2011(3) MPHT 19. See also: Jitendra Singh v. Rambabu. 2012(3) MPW 450 = 2012(3)'JW90 = 2012(3) MPHT 183; Comments under Section 85 of the Act; and Comments under M.P. Panchayats (Appeal and Revision) Rules. 1995. [3]Resolution is a Proceedings ofPanchayats.-A panchayat being a body corporate has to act by passing resolutions. There can be no doubt that certain resolutions can be fruited and ripened and become orders. Some basically shall remain strictly in the frame or compartment of resolutions .. The question would be whether a resolution is a proceeding because section 91 ofthe Act uses the term 'proceedings'. Section 91 ofthe Act clearly stipulates that an appeal or revisionwould',lie against a proceeding of a panchayat and other authorities to such authority and in such manner as . m.'!yJ).e..Rr~~c.':i!I~g,AP.FQ~,~~qi!;lgqf.tI:!€.Qr'!lllYi'-ncMy,l!tis,!ssajl(lble in an appeal or revision. The Gram Panchayat functions by passing resolutions which eventually may fructifY and become orders but there cannot be denial ' ,,,{tl,e 'factthiita resoiutf(;fi' J.t" pro;,eed;~g~f theG~aiU' P";'~hayat. Sagar Machhua Sahakari Samiti, Seoni v. Chief Executive Officer, Janpad Panchayat, Seoni & Anr., 2008(2)MPLJ 194 = AIR 2008 (NOC) 1388 = , t 1 The text of saId notification in Hindi is.published in 2006 (3) MPW 40. but its Gazette publication reference is not mentioned hence enforcement is doubtful. (PA) 148 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 8.91 [3JResolution passed by Gram Panchayat. Appeal Before Collector against the resolution not maintainable. Jurisdiction exercised by the Collector and the Commissioner in quashing the resolution is unsustainable. Phool Singh Marko v. State of M.P., 2010(3) MPW 66. C. Necessary parties.-Appeal filed by candidates before Additional Commissioner in the matter of appointment of Shiksha Karmi. Appellants at whose instance the impugned order is passed are not impleaded as party. This is a material lacuna. Court cannot interfere into the matter in the absence of the appellants at whose instance the impugned appellate order was passed as they are necessary parties. p'etition4- State ofsuffersM.P., from2012(1)misjoinderMPW 461of the= 2011(5)parties. MPHTChakresh162Kumar Jain 'Rule 5: A. Jurisdiction.-The respondent NO.5, by suppressing the fact that the writ petition preferred by him has already been dismissed has preferred a revision before the State Government. In any case, the Minister, Panchayat and Social Welfare Department cannot sit over the order passed by the Division Bench of High Court. The initiation of proceedings by respondent NO.5, before the Minister, amounts to abuse of process oflaw. Mordhvaj v. State of M.P., 2013(2) MPW 196. B. Revision.-[lJ One revision competent.- Only one revision under clause,(a) of Rule 5 lies ,either to State Government/.Co!1UI1lS-,, sioner! birectorofPancnayator c6Jiector. The'powers conferred upon them is concurrent. No second revision lies revisional order passed by any of the authorities mentioned above. 2000 (2)MPW l76 ReI.Mamta Pateria v. State of M.P., 2002'(4) MPW 196=2002 (2) JW 89=2002 (5) MPHT76. [21 Ascribing of reasons while disposing of the revision is a must. Anita Singh v. State of M.P., 2009(2) MPW 273 = 2009(1) JW 132 = 2009(1) MPHT 392. [3J Power of revision.-Can be exercised even suo motu. Harish Chandra Yadav V. State oIM.P., 20i2(2) MPW, 27 = 2012(1) MPHT 397. C. Second revision.-[lJMter disposal of the revision before the Commissioner the respondent NO.5 filed the second revision before the Minister. Revision so filed was maintainable. Ramkinkar Vishwakarrna v. State of M.P., 2012(2) MPW 690 ':= 2012(3) MPHT 253. [21Scope of Second revision.-Second revision against the order of the Commissioner passed in first revision is maintainable., Sar- ' panch, Gram PanchQyat, BhQrjuna Khurd v. l;iaittqsh Singh, 2010{4) MPW417. ' " .'.', "'!," " ' , !3] 8ec!Jnd revision ,!!J0uld.be maintainable.-The ,question is whether a suo motu revisional power can be exercised by the Hon'ble Minister so that the order Annexure 1','2can be said to be a valid exercise ofpowerbyhim or whether secondrevisionshall lie ? Held,the Counselfor ! l •• 8.91 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)147 passed by or as to the regularity of the proceedings of an authority subordinate to it. Neither this section nor the rule provides that the revisional authority under the garb of exercising the revisional powers can set aside an election. An election held under the Act is neither an order nor a proceeding. Consequently revisional authority would have nojurisdiction to entertain or register a dispute under this section. The Collector, a revisional authority, had no power to entertain or register an election dispute under suo motu revisional powers. Order passed by him quashed. Amarsingh v. State of M.P., 1999 (2) MPLJ 337. [2]On behalf of the Panchayat the Sarpanch cannot sue and file an appeal independently.-Under S.l1 Gram Panchayat being body cor. porate can sue and can be sued. The power shall not vest in Sarpanch but it will vest in the whole body ofthe Gram Panchayat and if the Panchayat wants to sue or to file an appeal, the Panchayat has to pass a resolution authorising either to Sarpanch, or Up-Sarpanch or to any Panch or to file . appeal or Writ Petition Or any other petition. Rule 3 of the M.P. Gram Panchayat (Powers and functions ofthe Secretary) Rules, 1999provides that executive power ofGram Panchayat shall vest in the Panchayat Secretary, who will exercise the executive power, but in these Rules also it is nowhere provided that who will sue on behalf oftbe Panchayat. Held, therefore we are of view that. Gram Panchayat is a body corporate, having power to sue or to be sued,.andthe Gram.Panchayath.as. to authorise somebody to act on . its behalf and without the resollitionby authorising' any' person to sue'of' behalf ofthe Panchayat, the Sarpanch cannot sue and appeal independently. Gram Panchayat, Bamral v. Jagdish Singh Rawat, 2008 (3) MPLJ 127 = 2008(4) MPHT 132 = 2008(2) MPWN 102 (DB). . 3. Comments under M.P.Panchayats (Appeal and Revision', Rules, 1995.- The rules are framed under S.91 read with S.95. They are applicable only the appeals and revisions which are filed under S. 91. Hukumchand v. Dheerji, 2001 (1) JLJ 229. Rule 3: . .. . . . __.. . A. Right of Appeal.-Right of appeal is not restricted to a party to the proceeding. An appeal under Rule 3 can even be preferred by any person aggrieved. Harish Chandra YadaiJ v. State of M.P., 2012(2) MPW 27 = 2012(1) MPHT 397. B. Maintainability of Appeal.-[I] Appointment of petitioner as Panchayat Karmi by resolution. Under Section. 91 of Act, order ap. potnting Parlchayat Kanni is appealable and not. a resolution. Raj. kwnar Kushwaha v. State of M.P., 2013(1) MPW 238 = 2013(1) . MPWN"24"=>n.R2013 MP 53. - -. -I - -. ' . .I21 Termination .of services of. Panchayat KaJwi by passIng a resolution. No further orders were issued and instead the services of respondent No.5, Panchayat Karmi were brought to an end by the said resolution itself. The resolution in substance amounts'to an order. Appeal against the said resolution was matntainable before the SDO. Chandrakant Kushwaha v. Col1ectqr,Katni. 2011(3) MPLJ 196 = 2011(3)MPHT 19. • . . • (PA)146 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 8.90 90. Disputes between Panchayats and other local authorities.- (1)In the event of any dispute aIising between two or more Panchayats or Panchayat and any other local authoIity in any matter In which they are jointly interested such dispute shall be referred to the State Government and the decision of the State Government thereon shall be final: Provided that if the dispute is between a Panchayat and a cantonment board the decision of the State Government shall be subject to approval of the Central Government. (2) The State Government, may by rules made under this Act, .regulate the "relations between Panchayats and Panchayat and other local authoIities in matters in which they are jointly interested." Rules:- The State Government has made the followingrules in exercise of the powers conferred by this section. These Rules shall be found under Rules given separately. "REGULATION OF RELATIONS BETWEEN PANCHAYATS AND PANCHAYAT AND OTHER LOCAL AUTHORITIES RULES, 1994" 91. Appeal and revision.-An appeal or revision against the orders or proceedings of a Panchayat and other authorities under this Act, shall lie to such authoIity and in such manner as may be prescribed . . :.. . C OM ME.NT AR Y ;-,.- SYNOPSIS 1. General. 2. Scope of jurisdiction. 3. Comments under M.P.Panchayats (Appeal and Revision) Rules, 1995:Rule 3: A. Right of Appeal. B. Maintainability of Appeal. C. N~s:~_s~afYparties. .... Rule 5: A. Jurisdiction. B. Revision. C. Second Revision. 4. Appeal or revision. 5. JurisdictionofS.D.O. 6. Rules. '. 1. General.- The appellant was workllg as Education Instructor and waslaterhandedonremovedoverfromthe additionalthe postofsecretary.charge ofSecretaryHI'S, remedyGramagainstPanchayat. the removalbut 'was byway ofappeal: Ramlal Satpute v. State orM.p., 2003(1) MPLJ 119 (DB). 2. Scope ofjuris~iction.-An election under theAct can be challenged onlybyelectionpetition and noother andinviewoftheprovisions ofsection 1 122, an elrction to panchayat conducted or held under the Act cannot be interfered with byrevisional oran appellate court. Section 91ofthe Actread :I I "with rule 5 ofth" Appeal and Revision Rules of 1995makes it clear that the "revisional authority can only examine the legality or propriety ofany order 'I ,. 5.89 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)145 between 'negligence' and 'gross negligEmce'? The difference is of degree only. The examples of negligence, are found to be most common, because after achieving independence in 1947, persons sitting on posts of responsibility take it to be their right to become negligent and the legislature too does not mind. Punishment is given for 'gross negligence', meaning thereby an action or inaction ofthe type which is most unexpected. Here, it will depend upon the authority sitting in judgment to call one thing to be 'negligence' and the other 'gross negligence'. It is not possible to give an exhaustive list ofwhat may be called 'gross negligence'. , [4] Gross negligence means negligence which is gross, I.e. not simple. There is a distinction between negligence and gross negligence, although the exact dividing line is difficult to demarcate. "Gross negligence" connotes higher degree of negligence, it is negligence not arising merely from some want of foresight or mistake ofjudgment but from some culpable default. See Giblin v. McMullen, (1869) LR 2 PC 317 at 1'.337). [5]In Black's Law Dictionary thp ,'xpression, is defined as follows:"The intentional failure to, J~.rl(>rma manifest duty in reckless disregard of the consequences as affecting the life or property of another; such a gross want of care and regard for the rights of others as to justify the presumption ofwilfulness and wantonness." [6]Petitioner found guilty of not keeping proper supervision resulting in pecuniary loss to-thesociety.,This act.amounts_t9,not;O,nlY,negligence"bpL gross negligence. Sura} Devi v. Dy. Registrar, 1991 RN 40 (HC). See also Deveshwar Singh v. Board of Revenue, 1991 RN 48 (HC)(DB);Nanhelal v. Asst. Registrar, AIR 1970 MP 39 (DB)& Shakuntala v. Board of Revenue, 1991 RN 18 (DB). (7] It should also be remembered that the section makes liable even those persons who are not paid any remuneration by the panchayat for the work they perform. In order to hold them liable for being gross negligenet, the standard of care expected of them, giving due consideration to their education and experience, the extent of responsibility one would feel, and the onerous obligation one would like to discharge should noibe lost-sii# of. . 8. Reasonable opportunity of being heard.-[l] It is a universally accepted principle of natural justice that no one shall be condemned unheard. The proviso to sub-section (1) specifically provides that before any recovery is made under this section"the person concerned shall be given a reasonable opportunity ofbeing heard in the.matter. (2] Here, reasonable opportunity of being heard would mean that the person concerned should be intimated the fact that he has caused loss to the 'paneliayarBy Ills misconai1cf "fc':"ot'gross i1egligenc,tand that he is iiable to reimburse the panchayat the amount of loss so caused. The intimation - should contain eachlliid"lVeryconcerned- facts constituting his liability to reimburse the panchayat. [3]If a person does not attend the enquiry made against him inspite of notice, he cannot be heard to say that he was given no opportunity ofbeing heard. Shakuntala v. Board of Revenue, 1991 RN 18. For detailed commentary, kimlly see comments under SectIon 87. I, ., . .' •• • ••1\, 8.89 (PA)144 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 I \, result. Every money or property has its ownvalue and by spending the same or by giving the same to someone, if nothing is gained in exchange, it would be called wastage of money or property. [3J'Misapplication' of money or property means not applying the same for a purpose for which it was meant and instead it is applied to a cause or purpose for which it should not have been applied or spent or given. [4]The legislature has enumerated these three types oflosses caused to a panchayat for which an order ofreimbursement may be made. 6. Misconduct.-[l] When power is vested in a person or institution to act and that person acts then, his action wilJ.be called 'conduct'. The term 'conduct' may be ofthree types, (i) action taken in the natural course and in a natural manner, it will be simple 'conduct', action done with great efficiency, diligence, and application of mind, it would also be conduct but the type would be nice, brilliant or appreciable conduct, an action done in a hopeless manner, without application of mind , with an intention to deceive, d(~fraudor misappropriate, the action would be called 'misconduct', The intention here may be criminal also. [2]Misconduct literally means wrong or improper conduct, i.e. conduct in violation ofa definite rule ofaction. It ordinarily means failure tobe done. An omission to dowhat is required ofa person to domay therefore constitute misconduct even though the person has not acted wilfully or maliciously. Mohammad Sheik Nathu v. Governor General in Council, AIR.l954 NAG 337 (DB). _ - . :c .' - .. " '", .__ 7.GrossNegligence.-[ll In order to understand 'gross negligence', one should know what the term 'negligence' ineans. A person is enjoined with some duties and negligence may be caused in discharging those duties. It is 'action' in some cases and in other cas~s,it is 'inacti~m'too. A person may be said to be negligent in his action and as well as in his inaction. In doing an act, a person may not observe the standard of care expected of a man of average standard, he may not apply his mind or he may do it absent mindedly, or he may not do it at the proper time. When a person is expected to do something at a particular time.and he does not doit, itis inaction called ... in other words negligence. One can put to loss another person by his action as well as inaction and in both of them, he can be said to have acted negligently. But where a person does not possess the ability, the qualification'lind'knowledge of the subject for doing any act and ifte does it or if he is required to do it or if he is unable to do it,. then it will not be called 'negligence' on his part. 'if I, iii .~ ill; I~ 'i 'II'Ii' [2]The author finds the above state ofaffairs in many fields. The modern day politics has completely overlooked education, experience and merit of a person who is put up as a candidate by some political party and who is illtimateJ:y elected by man and money po.Jer.The capability ofa person to perform the duties attached to a post is completely ignored . i I, ',), 'I, .', [3rI;' ~~b-~ectio';'(1), the expression used is 'gross negligence' which does not include 'negligence'. Ifloss is caused to a panchayat by the persons mentioned therein due to negligence, no action .can be taken against that person under this section. But where loss is caused due to 'gross negligence' then, that person would be liable, The question is, what is the difference 8.89 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)143 Provided that no recovery shall be made under this section unless the person concerned has been given a reasonable opportu')lty of being heard. " ; \, (2) If the person concerned fails to pay the amount, such amount shall be recovered as arrears ofland revenue and credited to the funds of the Panchayat l[or Gram Nlrman Samltl and Gram Vlkas Samltl] 2[or committee of Gram SabhaJ concerned. COMMENTARY 1. Object of.-The section provides forreimbursement ofthe loss caused to a panchayat by its office-bearers or officers or servants etc. 2. Persons liable to reimburse.-Sub-section (1) enumerates a list of persons who would be so liable. It includes the following:- (i)Panchas of Gram Panchayats; (ii) Members ofJanpad Panchayats and Zila Panchayats; (iii) Sarpanch and Up-S.arpanch of Gram Panchayats; (iv) President and Vice-President of Janpad Panchayats and Zila Panchayats; . (v) Officers and senelmts of various panchayats. 3. Liability for reimbursement.-[l] It is not each and every loss or waste of any property be.longingto tbe Panchayat for.which li"bility: oLthe __ "persons enumerated above is to be fixed.The sub'sectiim'speCificallypoints'" .- . out the type of loss etc. for which liability of some person may be fixed or determined. [2] A person would be liable to reimburse. any loss etc. for which he bimselfhas been responsible or he has been a party who caused such loss. [3JAperson is also made responsible where the loss is caused due to his . misconduct. What is 'misconduct' is again a question of interpretation. Similarly such a person is also liable if the loss is caused due to his gross neglect of his duties. The expression 'gross neglect of his duties" also need to be intetpr'eteaand inidetstiJod properly,_. -- --r ,- 4. Caused by him.- The word 'caused' as it is used in the section must be understood in the sense of 'causa causans' meaning thereby the real effective cause of sustaining the loss. To be more clear, the action complained of should be the real cause of sustaining the loss and not a remote cause. 5. Loss, waste or misapplication.-[l] 'The expression 'loss of money or other property' would indicate "going '\way from the possession or enjoyment of".Aperson is said to losemoney orproperty when he is deprived ofit by steaiing from him, by misappropriation or by taking forcible posses- ,_. 'Si'6fr1:ifthe"s;fme'.Anothe!' exilmple'W6tildb~-wlieii11person'!s instigated to doan act or to enterinto a contract and consequently he suffers loss ofmoney . ~orproperty in the deal-: - '.. [2] The expression 'waste of money or property' denotes an action by which money orproperty is either spent ormisusedwithout getting expected 1 Ins. by M.P. Act 16 of 2004, w.e.f. 1-1-2005. 2 Ins. by MPAct 18 of 2007 w.e.f. 25-5-2007. (PAJ142 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 S.88 functions and duties. Any order which does not satisfy the above tests would be liable to !:Ie set aside either by the appellate authority or in supervisory or writjurisdiction ofthe High Court. 17. Appeal and revision.[I] Looking to the provisions ofsub- section (1),it is the State Government orthe prescribed authority whois empowered to pass an order ofdissolution ofa panchayat. Where an order is passed by the State Government, no appeal lies against its orders because under the Madhya Pradesh Panchayat Appeal and Revision Rules, 1995, an appeal is provided against the order passed by the Director but there is no forum where an appeal can be filed against the order ofthe State Government. It is the highest authority. Generally, it will be the Director who will take action under this section and an appeal can be filed against his order to the State Government. The limitation for appeal would be thirty days. [2JRevision.-Although an application for revising the order passed by the prescribed authority may be made to the State Government, it would be better to file an appeal to the State Government and not a revision. 18.Jurisdiction of High Court to interfere.-On receipt ofa petition against an order passed by any of the authorities, the High Court has a supervisory jurisdiction and also a writ jur~dietfon. Both of them are not similar to appellate jurisdiction. It will nev"i' interfere unless it.findS.that the provisions oflaw have been violated and the authority concerned-has . .riot followed'the procedure it ought to have followed. 88. Inquiry into affairs of Panchayat.-The State Government may, from time to time. cause an inquiry to be made by any of its officers in regard to any Panchayat on matters concerning it or to any matter with respect to which the Sanction. approval, consent or order of the State Government is required by or under this Act or he JUles made thereunder .or under- any law-for the tithe being hi force. - 89. Liability of Panch etc. for loss, misappropriation._(IJ Every Panch, member, office-bearer, officer or servant of Panchayat I[or Gram Nirman Samiti and Gram Vikas Samiti] 2[or cOmmittee of Gram Satha] shall be personally liable for loss, waste or misapplication of any money or other property of the Panchayat 3[or Gram Nirman Samiti and Gram Vikas Samiti] 4[or cOmmittee of Gram SabhaJ to which he has been a party or which has been caused by him by misconducf or gross neglect of his duties. The amount required for reimbursingt such loss, waste, or misapplication shall be recovered by heprescIibed authoIity: Ins. by M.P.Act 16 of 2004. w.e.f. 1-1-2005. :2 Ins. "by MPAct 18 of 2007 w.e.f. 25-5- 2007. 3 InScbYM.P.ActIBof2004.w.e.f.I_I_2oo5. 4 Ins.'byMPAct18of2007w.e.f.25-5-2007. 8.87 PANCHAYAT RA.J AVAM GRAM SWARAJ ADHI., 1993 (PA)141 8.87 'oceed of different facts and circumstances. This oppoltunity may include infanning him of the material which is to be used against-him, supplying him all ~iving material that may be necessary for his defence, reasonably instructed in law, would reach on the basis of facts and circumstances on record. Unless the opportunity as aforesaid has been given, it will be difficult to hold that the person affected by the order had a reasonable opportunity of showing cause against the proposed action. If enquiry is made under section 88, the prescribed authority is bound to give a copy of the enquiry repo!;.t to the panchayat concerned. See AIR 1977 SC 1267 & AIR 1978 SC 597. 'ply a :ause !rs of 'porIe of 12. Service ofnotice.-!t is provided in the section that a notice caIling for explanation shall be served in accordance with the provisions of section 119 of the Act. Section 119 says that a notice or other document under this Act shall be served in the prescribed manner. Rules have been made by the State Government for service of notice etc. and they are called, "Panchayat (Method of service of Notice and other Document) Rules, 1995". See Rule 3 of the aforesaid rules. 13. Appointment of a person or committee in place of dissolved panchayat and theirremuneration.-[I] Where a panchayat is dissolved, the State Government or the prescribed authority, as the case may be, shall appoint a person or a cOIpmittee of.persons to perform the functions and duties of pane hay at and exercise all the powers of the dissolved panchayat till the new panchayat is reconstit."ted. Where "committee is soappoi.nted ture mama;ate :100 Tat. IOn of Iit ed he :u- . the appointi,;g a.uthority shall also app'oint a head' ofsuch committee. . .---- . .• he L st [2J The State Government is also empowered to determine the fee or remuneration of such person or committee for the services rendered by them. er ~o 14. Vacation of "ffice.-When a panchayat is dissolved, all the officebearers ofthe panchayat shall vacate their offices. The office-bearers would mean a panch, Sarpanch and Up-Sarpanch in the case ofa Gram Panchayat, a member, President and Vice- President in the case of Janpad Panchayat and Zila Panchayat. __ . _ .... ~~ 15. Reconstitution ofPanchayat.-[IJ It is provided in sub- section (5) that a Panchayat dissolved under sub-section (1) shall be reconstituted within six months of the dissolution and the reconstituted panchayat shall function for the remaining term of the panchayat dissolved. But where the remaining term is less than six months, no such panchayat shall be reconstituted. :e,- , s [2J It is also provided that the new panehayat shall be reconstituted in accordance with the provisions of this Act. IS. Nature .of .order -to .be..passed.- The authority passing the order should bear in mind that exercise of power under this section to dissolve a . p;mc!l,ayatw.Quldqe a rare tl;ting..The,r.llfore,th.llauthority passing the order should pass a speaking order which must itself speak as to why such an action is taken. The order should disclose that the concerned panehayat was given reasonable opportunity of submitting its explanation and/or hearing and the authority has considered its explanation and reply to the allegations very minutely. The order should set an example for other panchayats so that they may not behave in that manner and should be vigilant to perform their (PAJ140 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 8.87 initiation ofproceedings under this section. The authority shall not proceed in the matter unless it is satisfied primarily. i [3JWhere the authority has proceeded under this section after receiving report ofa preliminary enquiry, it is the duty of such authority to supply a notice.copy of1993such RNreport6. to the panchayat concerned along with the shQWcause the panchayat.[4JPreliminary1989enquiryRN 11.need not be held in presence of the members of . 11. Reasonable opportunity.[l] The expression "reasonable opportunity is found to be used in many a statutes. It embodies the principle of natural justice that no body should be condemned unheard. The Legislature here has used the expression "reasonable Opportnnity offurnishing explana tion". The question arises as to what is the meaning of furnishing explana_ tion? There are many hidden'words to be read in this expression. The State Government or the prescribed authority, as the case may be,has to mention everything in the notice for which it needs an explanation ofthe Panchayat. It should specify in the notice each and every allegation, should mention documents which tend to prove any allegation against the working of panchayat, with copies of such documents or its relevant extracts and it should also mention the names of witnesses who have deposed or verified the allegations. The intention is that nothing should be hidden from the panchayat and decision of dissolution should not be based Onfa~ts, doeu- _ ments and witnesses about which the panchayat had nb-knOWledge.The 'Panchayatit for dissolution.should know each and every. matter which can be used against [2JThe concerned panchayat should be given full Opportunity to render explanation of each and every allegation and it should not be denied to explain things either in person or by representation or by leading evidence in the matter. It should be given a reasonable opportunity of cross-examin_ ing the witnesses who have deposed against it, if so desired. [3JThe purpose ofaffording reasonable Opportunity is not served unless it reaches the stage oftaking final decision in the matter. Before taking any final decision in the matter the concerned authority should consider the expl",nation given by the panchayat quite impartially in the light of the situation mentioned above. It is neither a routine matter nor an ordinary thing to be witnessed formally. It is a serious matter and should be judge free from all prejudices. It is not necessary that the primary satisfaction of the authority is required to be maintained. The entire exercise of affording reasonable opportunity to submit an explanation is aimed at to find out real facts and an adequate remedy to correct the wrong, committed if any. [4]It is a settled position that the menlbers constituting any panchayat in Madhya Pradesh may not be law knowing but the authority taking action against it under this section shall be knowing the law fully well. It should reach a conclusion which a reasonable mind, reasonably instructed in law, would reach on the basis of facts and circumstances on record. [5] The two words "reasonable opportunity" incorporate Principles of natural justice. Principles of natural justice are not contained in any straightjacket formula and have been interpreted differently in the context 8.87 S.87 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)139 follow administration done by a Panchayat fail, then only the remedy of removal should be resortedJo. When peopleofode party are in Government, they try lion to 'mthe lS the to remove persons belonging to their rival party and often exercise pressure on the officials at different levels to do so. The officers in the Government should be aware and keep themselves free from such pressures. [3J It may,.,however,. be noted that the prescribed authority before reSorting to an action under this section should see that there are other provisions in the Act which can ~ve him better information about the working of panchayat. Section !l4' relates to inspection of work of panchayats, Section 84 provides/f'0J inspection of works of Panchayats, Section 85 empowers the authoritres to suspend execution of orders and Section 86 empowers the State Government to issue orders directing panchayat for execution of works in certain cases. tuted )t be ueto :uted ayat :the n, it I yat. ~am 6. Persistently makes default.-In sub-section (1), We first ground on which a panchayat can be dissolved is its persistent default. The word 'persistently' connotes not one ortwo defaults but itmeans ((again and again, goes on committing defaults time and again". put 7. Default.-The default mentioned in sub-section (1) is in respect of performance of duties imposed on itby or under this Act, or under any other lUS ar,ill law for the time being in force. The term other law would include even the rules made by the State Government undervarious,Sections ofthis Act. But the panchayat is not obligedto catty1lutiill illega!order'ofany authority .. " It cannot be asked to do a thing which it is not empowered to do. :aial 8. Exceeds or abuses its powers.-In order to bring any case within this clause, one shall have to define the powers ofthe concerned panchayat. If it appears that the panchayat concerned has been doing acts which are not expected ofit, meaning thereby it is exceeding its powers in resolving to do any act or series of acts. Similarly where it appears that in the name of Panchayat it is resolving to do certain acts which may be called 'abuse of power'. A panchayat is not expected to exercise power or jurisdiction which is notvestedinit._ . 9. Fails to carry out orders.- The sub-section makes specific mention that the panchayat has failed to carry out the orders either of the State Government or that ofthe competent authority. It is not that every omission or failure will empower either the State Government or the prescribed authority to order dissolution. There must be persistency in doing so. If the panchayathas not understood the nature and implication ofany order either ofthe State Q9xernment or the competent authority, it cannot be said that it has failed'tocarry it out. The Panchavat should be made to understand .t 'n )f It e f , t r , ~h,:i.mp.uS'!!ilQ~~er.: 10. Enquiry,-[l]l:setore' ordering dissolution ofa panchayat, the State .- fi9yefllJ.l!ellt PJ,~l;te,jlrJ'~~.bed.a,.thorityis.required to m.akean enquiry as It deems fit. Powers ate vested in the State Government to make an inquiry ,into the affairs ofthe Panchayat and it may doso through any ofits officers. [2J The object of this enquiry should be to find out facts which would either lead the State Government or the prescribed authority to form a prima fade opinion that the situation is such which demands action. It is the primary satisfaction of the concerned authority which would lead to •• .. (PA)138 PANCHAYAT RAI \ VAM GRAM,SWARAJ ADm., 1993 8.87 [6J Sub-section (3) enumerates the cpnsequences which would follow when a panchayat is dissolved under sub-section 0). [7]Provision is made in sub-section (4) for payment ofremuneration to a person who is appointed an administrator or sayan officer to perform the powers and duties of a Panchayat, from the funds of the Panchayat as the State Government maY-determine. [8J Apanchayat, ifdissolved under sub-section 0) shall be reconstituted within six months as per provisions of the Act but it shall not be reconstituted in a case where the term ofthe concerned panchayat is due to expire within six months. It is also provided there that a reconstituted dissolved.panchayat shall remain in existence forthe reIfiainingterm ofthe panchayat 2. Applicability of the section.-Clause (xvii) of section 2 defines the expression 'panchayat' as used in this Act. According to this definition, it means, (i) Gram Panchayat, (ii)J'anpad Panchayat and (iii)Zila Panchayat. Accordingly the section applies to all panchayats namely, the Gram Panchayat, the Janpad Panchayat and the Zila Panchayat. 3. Object of the provision._ The object ofenacting this section i~to put an effective check on the misdoings of such persons, who by some means have obtained the administrative posts of panchas or members and Sarpanch or President of the panchayat and are acting in a manner which will ruin the administration ofthepanchayat ~__~_"-. ~__ ., _ .. ' 4. Pr'escribedAuthority.~ The 8tak GOV<'rnmenthas by its notification dated 5th--March 1994, prescribed 'Director, Panchayat & Social Welfare' as the prescribed Authority under this section. 5. Requirements for dissolution._[l] It" should be remembered-"- that Oursis a country governed by a Constitution under which the whole nation and the States comprised therein are governed by a Democratic Form of Government. In this Democratic Form of Government, administration at different levels is entrusted to the representatives of the people. But the 'most unfortunate state of affairs is that even after expiry of53'yearsof independence, most of the people of OurState are still uneducated and the population consists ofmany backward communities. The State Government as well as the prescribed authority should not forget this state of affair of Our State and in exercising any power under this section, they should not forget that much cannot be expected from the members constituting various panchayats. If they work reasonably well, no attempt should be made to remove them. Even if they commit mistakes or they are negligent in Some respects and also if they exceed their jurisdiction in their zeal of overdoing things, they must be properly guided, rath~r than removed. The legislature has very wisely used the term 'persistently makes default' for this reason only:'Certain defaults oUlieir have to be tolerated unless they form the habit of making defaults.-Similarly theY .cannot be expected to recognise the boundary line of their' jUrisdiction and powers, hence they may e"ceed, rivalry.Abuse of power is certainly very bad thing and it is often made in political [2J From the above observations, one should also understand that dissolution is the last resort and not the first. if all attempts to reform the •• • • 8.87 8.87 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHl., 1993 (PA)187 fiT 22 = COMMENTARY ; SYNOPSIS 1. General interpretation. 2. Applicabilityofthe seclion. 3. Objectofthe provision. 4. Prescribed authority. 5. Requirementsfor dissolution. 6. Persistentlymakesdefault. 7. Default. 8. Exceeds or abuses its powers. 9. Fails to carry out orders,. 10. Enquiry. 11. Reasonable opportunity. 12. Service of notice. 13. Appointment of a person or committee in place of dissolved panchayal and their remuneration. 14. V8.i..:ationof office. 15. Reconstitution of Panchayat. 16. Nature of order to be passed. 17. Appeal and revision. 18. JurisJictio~ .<?f High Court to interfere" at for , State ersist~it by 'ce, or State lr the )yan llUan <!less hing d to It Or g to tice )w- 1. Ge'neral interpretation.-[l] The section provides for dissolution of panchayat for the reasons that the panchay.at is,- mpersistently making default inthe performance ofthe duties imposed' ect on it; or he (ii) exceeds or abuses its powers; or (iii) fails to carry out any order ofthe State Government; or (iv) fails to carry out any order ofthe competent authority. [2]It should appear to the State Government or the prescribed authority by n- tiL te a that a panchayat has committed an act or has failed to do an act as mentioned above, either the State Government or the prescribed authority may, by an order dissolve any panchayat. [3]Whenever the State Government or the prescribed authority takes an action under sub-section (1), it shall also order for constitution of such panchayat afresh. r r [3Al It is also made compulsory that before passing any order of dissolution of a panchayat, the State Government or the prescribed aU:!~Oljty,as the.case~ay "~~,shou)!l give a ~easonable opportunity to the 'mrrcernedvanchllyaHorfllrnishing itsexpl:m.atiori. - >" ""-'"' • [4]A notice asking explanation should be addressed to the Sarp"nch or th'ePresideiif of"l1ri'imPancliaya:t;'Jahiia:d Pancliayat or ZilaPaii'c1uiyat, as the case may be. Such a notice shall be served in accordance with the provisions of section 119 ofthe Act. [5]It is also provided in sub-section (2) that a panchayat, on receipt of a notice calling upon its explanation under sub- section (2), shall submit its reply after getting it supported by a resolution ofthe panchayat. (PAJl36 PANCHAYATRAJ AVAM GRAM SWARAJ ADHI., 1993 S. 82008(Il)(b)SeeMPWNalso:Mana)70 [DB].Kumar Yadav v. State of M.P., 2008(4) MPHT 22, , 87. Power of State Government to dissolve Panchayat for default, abuse of Powers, etc.-fl) lfat any time it appears to the State Government Or the prescJibed authority that a Panchayat is persist_ ently making default in the performance of the duties imposed on it by or under this Act or under any other law for the time being in force, or exceeds or abuses Its powers OrfaUsto carry out any order of the St"te Government Orthe competent authoJity, the State Government Orthe prescribed authority, may alter such enquiry as it may deem fit, by an thereof.order dissolve such Panchayat and may order a fresh constitution (2) No order under sub-section (I) shali be paSsed unless reasonable opportunity has been given to the Panchayat for furnishing its explanation. The notice calling explanation shall be addressed to the Sarpanch or President of Gram Panchayat, Janpad Panchayat Or ZUa Panchayat as the case may be, and shall be served aCcording to the Provisions of Section 119. The reply of the Panchayat to the notice shall be supported by the resolu tion of the Panchayat. " ing COnsequencf;s, s,hall ensure'riamely-="-" _ . __. - (3) On dissolution of Panchayat under sub-sectiolJ,(IJ, the.foll ow (a) all the OlTice-bearers, sha.1lvacate their olTices With effect from the date of Such order; (b) all powers and duties of the Panchayat shall, until the Panchayat is reconstituted, be exercised and performed by Such person or committee of persons as the State Govern_ ment or the preScribed authority may appoint in this behalf and where a committee of persons is so appOinted, the State headGovernmentof.sueh orcommittee;the prescJibedauthoJity... shali also appoillt a (c) where a Committee is appointed under clause (b)'\II>; member of Such committee duly authoJised by it maY'lSsue Or againstinstitute theorPanchayat.defend any action at law On behalf. of by or (4)Any person appointed to exerCise and perform the powers and duties of a Panchayat during the peJiod ofdiSSOlutionmay receive from the fund of the Panchayat concerned sllch payment for his service as the State Government may, by order determine. _ (5) A Panchayat dissolved under sub-section (IJ shali be reconsWllted in aCCOrdancewith the provisions of this Act Within six I -, -months of its diSSOlution.Such reconstituted Panchayat shali function for the remaining term of the Panchayat: PrOVidedthat if the unexpired period is less than six months the reconstitution of the Panchayat shall not be done for this period. 8.86 8.86 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)135 orany~ Panchayat Karrni in case the Gram Panchayat fails to make such appointment. PawanRa~.a v. Siate of M.P., 2009(4) MPLI 66 = 2009(3) JLI 276 = 2009(4) MPHT 377 (FB). " by it in the 5. Scheme ofMANREGA:-SeeAkhilesh Singh Baghel v. State ofM.P., 2013(3) MPLI 716 = lLR 2013 MP 2389. 6. Opportunity of hear in g.-In the matter of recruitment ofShiksha Karrni Grade-III, the petitioners were members of selection committee constituted under the Rules. The select list of the candidates prepared by them was cancelled. No opportunity was afforded to the petitioners before cancelling such list. Since the petitioner hadno personal right or interest in the list so prepared by them, it could not be said that their interest was adversely affected by such cancellation. It was not necessary to give opportunity ofhearing to the petitioner before cancellation ofthe select list. 1993 (1) SCC 154 ReI. Mansingh v. State ofM.P., 2000 (2) MPLI 187 (DB). 7. No suo motu powers lies with Collector to adjudge validity of an order.-Under Sub-Section (2) of S. 86, no suo motu powers lies with Collector to adjudge validity of an order which is passed in compliance of the direction of the State Government under S.86(1) to fill up the vacant post ofPanchayat Karmi. The correctness ofthe order passed in the favour of the petitioner could therefore be adjudged only in an appeal before concerning SDO. The exercise ofpower under Section 86(2) could only be in the event ofnon-compliance ofthe direction ofthe State Government. Seema . Singh v. State of M.P., 2009(Il) MPWN 46. 8. Appointment of Panchayat Katmi.-As empowered by S.86(1), Gram Panchayats can make appointments of Panchayat Karmi after a period of thirty days. Lallu Kol v. State of M.P., 2008 (4) MPLJ 418 = 2009(1) MPWN 27. 9. Selection & appointment by C.E.O. not permitted.-For the ary in :;sued ~ntor :t the J and ction ~rsOr .by tal, mt purpose of S.69 prescribed authority is Collector'and for S.70 Collector/AddI.Coliector. Therefore, on failure to discharge the liability ofS.86(2) the process ofselection and appointment ofPanchayat Karmi must be made by them or under their close surveillance and approval but selection and appointment done since inception till completion by the Chief Executive Officer, without any approval of the prescribed authority. Such action Lry IT a n"a .cannot be recognized, akin to approval the act of prescribed authority and do not have the protection under the provisions ofthis Act as specified under sub-section (2)ofSection 86 ofthe Act.Moreover as per the discussion made hereinabove, it is apparent that C.E.O. has acted with the bias of arbitrariness in t\'1ematter ofpreparation of selectIon list, therefore, also selection panel and process of-selectionis.liable to be 'quashed. Ramniwas v. State of M.P., 2008 (2) MPLI 297 = 2008(3) JLJ 136. LS .s Q. , e 10. Powers of Collector u/s.86.-(a) The Panchayat failed to comply directions issUed u/s.70 of appointing ';1Panchayat Karmi. In .such a case, the Collector as the prescribed authority had the power under Sub-section (2) ofS. 86 to authorise the Chief Executive Officer ofPane hayat to appoint a Panchayat Karmi. Leelawati v. State of M.P., 2008(4) MPHT .470 = 2008(3) MPWN 86 [DB]. (PAJl34 PANCHAYAT RAJ AVAA{ GRAM SWARAJ ADm., 1993 s this Act, Orbyor under any other law for the time being In force or, work as is not being performed Or executed, as the case may be, b~ and the performance Orexecution thereof by such Panchayat is, in i publicopinioninterest].of the State G",vernment Orprescribed authority, necessary (2) The Panchayat shall be bound to COmplyWith direction issu, under sub-section (1) and it it fails to do so lrthe State Government, the prescribed authority shall have all necessary Powers to get it directions complied with at the expense, if any, of the Panchayat] an in exerciSing such Powers it shall be entitled to the same protectio servantsand the sameWhoseextentPOWersareunder exercised.this Act as the Panchayat Orits officers 0 l COMMENTARY SYNOPSIS 1. Enquiry is essential before remOval order. 2. Exercise of power by Competent Authority. 3. Appointment of POi1chayat Karmi. 4. Scope of S.86(2). 5. Scheme of MANREGA. 6. OPPOrtunity of hearing. 7. order.No suo motu powers lies with Collector to adjudge validity .of an. 8. Appointl!lent of-Panch-aya-t-K~rmi .. 9:. Selection & appointment by C.£.O. not permitted. 10. Powers of Collector u/s.86. 1.'Enquiry is eSSential before remOval order.-Explanation given by the employee against show cause notice without unequivocal, unconditional, unqualified and Specificadmission nf guilt. Renee order of the competent authority directing to remove the petitioner without conducting the enquiry 59set=aside.2013(I)GhanshYamMPWN 18.u.State ofM.P., 2013(I) MPLJ 144= 2013(2) MPRT 2. Exercise of POWer by Competent AuthoritY.-Unless there is a ..". wilful default Ornegligence Onthe part of the Gram Parichayat, the Com_ petent Authority cannot exercise that Power. Brajesh Sharma u, Nagendra Singh Sisodiya, 10(2) MPLJ 101 = 2010(5) MPIIT 133. 3. Appointment of Panchayat I{armi.-Application by the petitioner for appointment on the post of Panchayat Karmi. On the date when his selection Wasfinalized an recommendation forhis appointment Wasmad as Panchayat I{armi, the petitioner was holding the post ofPanch of the Gram Panchayat concerned. This being so, the petitioner Was ineligible to be appointed as Panchayat I{armi. Collector rightly set aside illegal appoint_ ment ofthe petitioner. Prahlad Das Tandla u. State of M.P., 2012(3) MPLJ 580. , i'l,I 'I. 6(2).-State Government or the preScribed authority can direct the Chief Executive Officer of the Janpad Panchayat to appoint a 4. Scope OfS. I Subs. by MP 43 of 1997 15-12-1997). 8.85 8.86 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA1133 done by 'nto the eal was rhand, ~cerned ,der of " State resolution. Narendra Kumar v. State of M.P., 2012(3) MPLJ 627. ll. SDO not empowered for.-Suspension of resolution of Gram Panchayat appointing Panchayat Karmi by Sub Divisional Officer. Sub Divisional Officer cannot order Gram Panchayat to appoint another person as Panchayat Karmi. Must remit the matter back to the Gram Panchayat for making the proper selection and to pass the appropriate orders. Narendra Kumar v. State of M.P., 2012(3) MPLJ 627. i3. 7. Challenging to resolutions of Panchayats •Suo motu powers of State Government or prescribed authority.-On a keener scrutiny of section 85 it is evincible that the power has been conferred on the State Government or the prescribed Authority can suspend the resolution, order, etc. on the conditions precedent or such action being satisfied. That apart, the'said order is subject to further scrutiny for the purpose of confirmation by the State Government. The power is ofthe wide amplitude. ? even arities tothe )assed yatin Gram act of found ts for their :0 the lch a such :38 = The State Government has the authority to suspend the execution of any resolution. It also prohibits to perform any act by Panchayat. Many a ground has been enumerated empowering the State Government for interference. The term used is 'resolution' as well as 'order', etc. Though the language employed under section 85 does not use the term suo motu but it is virtually the suo motu exercise afpower because the State Government can take up the issue by itself. Suo motu power can also be invoked by a person aggrieved. In the absence of the rules it will be difficult to hold that 'the power of appeal or revision can be exercised by the said authorities bl.J1 Court cannot be oblivious of the fact that ,an appeal or revision is providl~ll in the substantive provision ofthe Act. ' ined was ,the I his The State Government has not framed rules by providing a forum. Under these circumstances it would be apposite and seemly to hold that the Person aggrieved can bring his grievance to the notice ofthe State Government and the State Government should take a decision under section 85 of the Act.While taking the said decision the State Government shall be guided by the concept ofpromptitude which is an intrinsic and inseggregable facet of suo motu exercise ofjurisdiction. Be it noted, while exercising suo motu power under section 85 ofthe Act the State Government shall be guided by the parameters provided therein and the nomenclature given to a proceeding under section 85 of the Act. Sagar Machhua Sahakari Samiti, Seoni u. Chief Executive Officer, Janpad Panchayat, Seoni & Anr., 2008(2) MPLJ 194=AIR2008 (NOC) 1388 =2008(1) JLJ 329 =2008(1) MPHT 254[DB]. ton ,h v. ut.mst uch (2). :ed. VN !nd Ion 8. Words "resolution" and "order".- The two words "resolution" and "Order" as used are two different acts'; Ramcharan Ahinwar v. SubDivisional Officer, Jatara, 1998 (2) JLJ 267. tis ler of :xt 86. Power of State Government to issue order directing he Panchayat for execution of works in certain cases.-1[(l) The State Government or the prescribed authority may, by an order In writing, direct anyPanchayat to perform any duty imposed upon it, by or under to le Ie Ie I Subs. by MP 43 of 199715-12-19971. c, c ,(-"'. '" <PA)132 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 8.85 affirmed in terms of the provisions of S.85 of the Act. This v'as not done by the prescribed authority, i.e. the SDO. He was not required to look into the claim made in the appeal filed by the private respondents, if the appeal was directed against the resolution ofthe Gram Panchayat. On the other hand, it was to be treated as a complaint under S.85 of the Act or the' concerned appellants were to be directed to file the appeal against the order of appointment and not against the resolution. Raj!?umar Kushwaha v. State of M.P., 2013(1) MPLJ 238 = 2013(1) MPWN 24 = ILR 2013 MP 53 . (2)Gross irregularities/improper procedure would be cure even in writ petition.-The Court cannot shut its eyes to the gross irregularities committed in the matter of appointment in case the same is brought to the notice in the Court even in "awrit petition filed against such an order passed by the SDO. Entire process was not initiated by the Gram Panchayat in appropriate manner and improperly the resolution was passed by the Gram Panchayat for making appointment of Panchayat Karmi. Such an act of Gram Panchayat cannot be approved. High Court in various cases found that improper procedure has been adopted by the Gram Panchayats for making appointments ofPanchayat Karmis, so that such persons after their notification as Secretary of the Gram Panchayat, may act according to the choice of the concerned Sarpanch. This is not the object of making such a scheme and, therefore, the High Court will not hesitate in quashing such proceedings. Rajkumar Kushwaha v. State of M.P., 2013(1) MPLJ .238= 2013(1) MPWN 24 = ILR 2013 MP /'i3. (3) Criteria for appointment. Scheme required that the marks obtained in the 10th class shall decide the fate of the candidate. 2nd respondent was having higher marks than the petitioner. However ignoring the merit, the petitioner was appointed only'on the basis of majority ofvotes casted in his favour in the meeting ofthe Gram Panchayat. Petitioner's appointment on the basis of majority of votes was illegal and therefore set aside. Mahesh v. State of M.P., 2010(3) MPLJ 470. 5. Powers ofSDO to suspend resolution of the Gram Panehayat.II] Resolution appointing Panchayat Karmi found illegal. Remedy against such resolution is that the SDO under S.85 can suspend execution of such resolution which is to be affirmed by next higher authority under S.85(2). Once such resolution is suspended, such resolution can not be implemented. Rajkumar Kushwaha v. State ofM.P., 2013(1) MPLJ 238 =2013(1) MPWN .24 = ILR2013 MP 53 I2JTrue it is that the Sub Divisiollal Officer is empowered to suspend the resolutIon ofthe Gram Panchayat in exercise ofhis powers under section 85(1) ofthe Act in case it is found after an enquiry that such a res~lution is not valid, proper, justified or legal. However, before passing such an order a summary enquiry is required to be conducted. The order of suspension of the resolutIOn.of the Gram Panchayat is required to be referred to the next hIgher authOrIty, I.e. the Collector, under sub'section (2)ofSection 85 ofthe Act. The Collector is required to hear all concerned and then eitlier to ~onfirm the ord~r of suspension of the resolution or to revoke or modify the orde,:ofsuspensIOn ofthe resolutIOn. Such a reference is required to be made wIthm a perIod of 10 days from the passing ofthe order of suspension ofthe .85 S.85 PANCHAYAT RAJ AVAM.GRAM SWARAJ ADHI., 1993 (PAl13l :on- 2. Maintainability ofAppeaI.-Resolution passed by Gram Panchayat. Appeal Before Collector against the resolution not maintainable. Jurisdiction exercised by the Collector and the Commissioner in quashing the resolution is unsustainable. Phool Singh Marko. v. State of M.P., 2010(3) MPLJ66. 3. No Interference.-Appointment of petitioner on post of Panchayat ling., , or on- Karmi by resolution passed by Gram Panchayat. The SDO after consideration of the record found that the respondent was having better marks in tenth standard still the petitioner was given appointment by the Gram Panchayat only on the basis ofmajority. He therefore set aside the appointment of the petitioner and ordered appointment of the respondent. Said order has been upheld by the Additional Collector. No case is made out to interfere into the impugned orders. Bherulal v. State ofM.P. ,2010(3) MPLJ 454. lSS ler "YS ~er ler nt 4. Appointment on post of Panchayat Karmi, Validity of procedure.- Out of the six candidates, the petitioner was selected and the order ofappointmeht as Panchayat Karmi was issued, pursuant to which, he gave his joining and, thereafter, was declared as the Secretary, of the Gram Panchayat by the Collector in exercise of the powers under S.69(1) of the Adhiniyam, 1993. The appeal was preferred by respondents Nos. 8 to 11 against the said appointment of the petitioner, before the SDO and in fact, instead of challenging the order of appointment of the petitioner, the resqlution of the Gram Panchayat was sought.0 i:>echallengeq, The.said .•• 'resolution was nof to .bechallEmged in such a manner and therefore, such lfy ut er 'Y ]e st an appeal was not maintainable. The appeaI.was liable to be dismissed, but instead of dismissing the appeal, the same was allowed and the order of appointment of the petitioner was sought to be cancelled by setting aside the resolution of the Gram Panchayat. It is contended that such power was not conferred on the SDO and as such the order was non est in the eye of law. Only on the basis of such an order, the petitioner was not to be terminated and, therefore, the writ petition was required to be filed. True itls that a resolution ofthe Gram Panchayat is not to be challenged before the Appellate Authority asthe same'isnot treated as an 'order. The' Division Bench of the High Court in various cases, has held that only an order consequent upon the resolution of the Gram Panchayat, appointing any person as Panchayat Karmi, is appellable under S.91 of the Act as also under the Rules known as M.P. Panchayats (Appeal and Revision) Rules, 1995. However; there is a power conferred on the prescribed authority, Le. the SDO under S.85 of the Act to suspend the execution of the orders etc. and a resolution of the Gram Panchayat is also to be suspended by the Competent Authority. The said susyenslon ofthe execution ofthe execution .mtlie. resolution. is to .be affirmed by-the next higher authority as per the provisions of sub-section (2) of the S.85 of the Act. At any rate, there is no pow.er .conferred ona .prescribed authority or the affirming authority to set aside the resolution. If once the resolution is suspended and the said order of suspension of resolution is affirmed by the Competent Authority, the resolution is to be pocketed for all time to come and is not required to be implemented at all. No action whatsoever, can be taken on the strength of such a resolution, if the same is suspended and such suspension order is (PA)130 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 8.85 (c) the execution of such resolution or order .. or the continuance in force of such licence or permission or the doing of such act is likely- I (i). to cause loss. waste or misapplication of any money or damage to any property vested in the Panchayat; (ii) to be prejudicial to the public health. safety or convenience: (iii) to cause injury or annoyance to the public or any class or body of persons; or (iv) to lead to a breach of peace. 1[(2)Whenever an order is made by the prescrtbed authority under sub-section (I), it shall forthwith and in no case later than ten days from the date of order, forward to the State Government or the Officer nominated by the State Government for this purpose, copy of the order with the statement ofreasons for making it, and the State Government or the officernominated by it 2[mayconfirm, set aside, revise or modifY the order] or direct that it shall continue to be in force with or without modification perman<;ntly or for such peliod as may be deemed fit: Provided that no order of the presclibed authority passed under sub-section (1)shall be confirmed, 3[set aside), revised or modified by the State Government or the officernominated by it without giving the Panchayat concerned a reasonable opportunity of being hearda~alnst . the proposed order]. . _.. COMMENTARY SYNOPSIS 1. Scope to entertain an appeal by S.D.a. against an resolution passed by Panchayat. 2. Maintainability of Appeal. 3, No Interference. 4. Appointment on post of Panchayat-Karmi, Validity of procedure. 5. Powers of SDO to suspend resolution of the Gram Panchayat. 6. SDO not empowered for 7. Challenging to resolutions of Panchayats . 8. Words "resolution" and "order". 1. Scope to entertain an appeal by S.D.O. against an resolution passed by Panchayat.-Under S.85 an"authority not specifiedto hear an appeal and the State Government not framed Rules to prescribed an authority to hear an appeal. The S.D.O.has nojurisdiction to entertain the appeal against the resolution passed by the Gram Panchayat. (Sagar Machhua Sahakari Samiti, Seoni v. C.E.o., Janpad Panchayat, Seoni, 2008(2) MPLJ 194 Rel.] State of M.P_ v. Rajesh Kumar Gupta, 2013(2) MPLJ130. 1 Subs. by MP 2 of 1997 [7-1-1997). 2 Subs. by MP 43 of!997 [5-12-1997). 3 Ins. by MP43 of 1997(5.12-1997]. '7-A 8.85 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)129 ~ture rate or any other amount due, whichever is higher.] 83, Power of State Government in regard to relief in taxes.-(l) If on a complaint made to it or otherwise it appears to the State Government that any tax imposed by a Panchayat is excessive in its incidence on tax payer it may, after calling a report from the Panchayat this rery ,I in this regard, abolish any tax or suspend or reduce the amount or rate of any tax. ~ I in :ate (2)The State Government may, on its own motion or otherwise after giving the Panchayat an opportunity of expressing its view in the matter, by order, exempt from the payment of any tax in whole or in part any person or class of persons or any property or description of properties subject to such conditions as may be specified in such ~rit, order. the rise .de 84, Inspection of works ofPanchayats.-(I) The ofIicerofthe State Government duly authorised by the State Government in this behalf may, subject to such terms as may be prescribed, inspect the proceedings of a Panchayat. :Ise der ,es,, (2) The officers authorised under sub-section (I) shall, for the inspection of the. Panchayats, exercise such powers as may be prescribed. led ch' on . (3) The' office bearers, ami the officers and servants of the Panchayat shall be bound to afford access to all such information and records as may be demanded by the inspecting authority. Rules:- The State Governmenthas made the followingrules in eXL'leise ofthe powers conferred by this section.These Rules shall be found under Rules given separately. . Ise ler "Ins~ctian o{Proceedings Rules, 1995." lie ee COMMENTARY . - - - --- --- Recovery ofloss to panchayat.- Wherelossis caused to a panchayat by act of all panchas, loss is recoverablefrom all panchas and not from Sarpanch alone.Sarpanch cannotbedirectedto recoverlossfromrest ofthe panchas. Chhotelal Patel v. State a{M.P., 1998 (1)MPWN 77: se er s) 85, Power to suspend execution of orders, etc.-(J) The State Government or the prescribed authority may by an order in writing ,s ,e }~ea~~sr dt~~_';,,~~~s,ct-!~,!el!".'s~s'p'::'~~t~~~e£uti;?!' .0tf,d-'!!'-y es U lvll J-'a~se , Ofuer lssuea, lcence or permlsslOn gran e or -.r",:d/j'r.r° t yn19 ,'"'"I prohibit the performance of any act by a Panchayat. if in his opinion,- • --. -,~_...-".'.~-' --""- •• __ •••••-.~-- ••••••.•••.•• ., ~ ..-•••••••••. '" ".-,,",.-- ••• ,~' -*,~ ., •••. - la) such resolution, order, licence, permission or act has not been legally passed, issued, granted or authorised; l~ •" ..-.'"~ ~ (L~ ~ (b) such resolution, order, licence, permission or act is "in excess of the powers conferred by this Act or is contrmy to any law; or (PAJ128 PANCHAYAT RAJ AVAM GRAMSWARAJ ADHI., 1993 S.77.A 4. "Janpad Panchayat (Imposition of Development Tax on Agriculture Land) Rules, 1999" 1[77_A. Power to impose Tax.-(l) Subject to the provisions of this Act and to such conditions and exceptions as may be prescribed, every Gram Sabha shall impose the taxes specified in Schedule I-A. (2) A Gram Sabha may impose any of the taxes specified in Schedule II-A.] 78. Power of State Government to regulate taxes.-n) The State Government may make rules to regulate the imposition, assessment, collection and sharing of taxes under Section 77. (2)No objections shall be taken to any assessment nor shall be the liability of any person to be assessed or taxed be questioned otherwise than in accordance. with the provisions of this Act or the rules made thereunder. Rules:- The State Government has made the followingrules in exercise of the powers conferred by this section. These Rules shall be found under Rules given separately. "Regulation 'of The Imposition, Assessment, Collection of Taxes Rules, ~" - 79. Appeal against taxation.-An appeal against any tax, imposed under Section 77 may be preferred to the preSCribed authOrity in such manner and within such time as may be prescribed and the decision of such authOrity shall be final. Rules:- The State Government has made the followingrules in exercise of the powers conferred by this section. These Rules shall be found under Rules given separately. "Manner and Limitation of Appeals against Taxation Rules, 1995." 80. Leases of market fee, etc.-The- Panchayat may by public auction in the prescribed manner, lease the collection of any fee specified in Schedule III. i Rules:- The State Government has made the followingrules in exercise I 'of the powers conferred by this section. These Rules shall be found.under Rules given separately. "Gram Panchayat and Janapad Panchayat (Lease of Collection of Fees) Rules, 1995" 81. Recovery of arrears. -Any arrear of tax. or fee and fines imposed, or any amount due under this Act shall be recoverable by the Collector as if It were an arrear of land reVenue. 2.182.Penalty fo~ evasion.-When a person is In default In making a payment of any tax. fee. rate or any other amount due, shall In addition to the amount of arrears. be liable. by way of penally, to pay a sum of five hundred rupees or ten times the amount of such tax, fee, '..~, , l~ .'" 1 Ins. byM.P. ActNO.3of2001126-1-20011. 2 Subs.byM.P. 26of1994[30.5.941. .;:l \ ~ • • • PANCHAYAT RAJ AVAM GRAM SIVARAJ ADHI., 1993 (PA)127 S.77 realised by the State Government in the proceeding financial year]. Rules:- The State Governmenthas made the followingrules in exercise of the powers conferred by this section. These Rules shall be found under Rules given separately. "District Panchayat Raj Fund Ru!es, 1998" 1[76-A. Distribution of amount amongst Panchayats.- (I) & (2) 2[ XXX I (3) The development tax realised under sub"section (3) of Section 77 from a J anpad Panchayat area shall be transferred to the concerned Janpad Panchayat and the Gram Panchayats within that Janpad Panchayat, in such proportion and manner as may be prescribed. (4) The amount pertaining to extra stamp duty, shall be pald to 3[Janpad Panchayat and Gram Panchayat] as grant-in-aid subject to such rules as may be made in this behalf. (5) The amount realised in the fund pertaining to other taxes, duties, tolls, fees and other receipts specified under sub- section (2)of Section 76, shall be distributed among the Panchayats in such manner; as may be prescribed.j 77. Other taxes.-(l) Subject to the provisions of this Act and to such conditions and exceptions. as may be prescribed every Gram Panchayat and Janpad Panchayat shall impose the taxes specified in .Schedule L (2) With the previous approval of the Janpad Panchayat a Gram Panchayat and with the previous approval of.the Zila Panchayat a Janpad Panchayat may impose any. of the taxes specified in the Schedule II. (3) A Janpad Panchayat may levy development tax on agriculture land. The tax so levied shall be payable in the same manner as land revenue. COMMENTARY Imposition of entry tax.- Entry tax on motor vehicles cannot be imposed by Gram Panchayat. S. N. Suderson & Co. v. Gram Panchayat Poniya, 1998 (I) MPWN 155. Rules:- The State Governmenthas made the followingrules in exercise of the powers conferred by this section. These Rules shall be found under .Rules given separately. . 1. Gram Panchayat Obligatory .yaxe~ and Fees (Conditions And Excej>tions)Ru1es,1996.1 -.~'2. Gf'am"PanchiJ.yat0JJli"Ii(l! Taxes and Fees (Conditions and ex- ceptions) Rules, 1996. . ." 3: JanapQdaPanchayats Theatre Tax (Regulation of Imposition. Assessment and CoUection)Rules, 1996. . I Ins. by MP 2 of 1997 [1-10-1998). 2 Sub-section (I) and (2) omitted by M.P.Act 23 of 2001 (10-10"2001). 3 Substituted by M.P. Act No. 260f2012[23-5-2012). 'J' , (PA)126 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHL, 1993 8,75 payable and collected so far as may be in the same manner as the land revenue. Explanation:"ln this Section the expression "tenure holder" "Government lessee," "land revenue" and "rent" shall have the same meaning as assigned to them in the Madhya Pradesh Land Revenue Code, 1959 (No, 20 of 1959)], Rules:- The State Government has made the followingrules in exercise ofthe powers conferred by this section, These Rules shall be found under Rules given separately, "Panchayat (Enhancement of Cess on Land Revenue and Distribution) Rules, 1999" 75. Duty on transfer of property within block,-The duty imposed under the Indian Stamp Act, 1899 (No, 2 of 1899), on instrument relating to sale, gift [or mortgage) of immovable property situated within the block be increased by one percent on the value of such property or in the case of mortgage on the amount secured by the instrument: I[Provided that such extra stamp duty leviedin respeci of mortgage shall not exceed the amount of stamp duty thereon; Provided further that no extra stamp duty is livable in respect of ally instrumell1: exempted from stamp duty under the Indian stamp Act, 1899 or the rules made thereunder.] COMMENTARY Extra Stamp Duty levied in respect of mortgage shall not exceed the amount of Stamp Duty thereon, Mis, APL International Ltd, v, State of . M,P" AIR 2008 MP 254(DB.) 2[76. District Panchayat" Raj Flind.-(I) There shall be constituted and operated in such manner as may be prescribed by the State Government, a separate fund at the district level by the name "District Panchayat Raj Fund" (hereinafter referred to as the "said Fund"). 3[(2) The proceeds of development tax under sub-section (3) of' Section. 77 along with such other taxes, duties, tolls, fees and other receipts as may be specified by the State Government shall. after deducting the collection charges, as may be determined by the State Government from time to time, be credlted.jnto, the said fund.] (3) The proceeds of (he extra stamp duty under section 75 shall .first be credited to (he Consolidated Fund ofthe State in such manner as may be prescribed and the State Government shall at the commencement ofeach financial year, ifthe LegislativeAssembly by appropriatlort made by law 111 this behalf so provides,. withdraw from the Consolidated Fund of the Stale an amount equivalertt to the proceeds I Added by MP 2 of 1997 [7-)-19"7J, 2 Subs, by MP 2 of 1997 [1-10.1998[, 3 Subs, by M,P.Act23 of 2001 (1O-1O-2001), • • • • • • I PANCHAYATRAJAVAMGRAMSWARAJADHI.,1993 (PA)125 8.74 1. "Gram Panchayat (Powers and functions of the Secretary) Rules, 1999" J 2. "Panchayat Powers and Functions of Chief Executive O.fficer} Rules, 1995" 73. Budget and annual Accounts. -(1) Every Panchayat shall prepare annually in such form and in such manner and by such date, as may be prescribed, budget estimates, ofits receipts and expenditure for the next financial year. (2) The budget estimates prepared under sub-section (i) shall be approved by such authorities and in such manner as may be prescribed. (3) The annual accounts and report of administration by panchayats shall be presented to the prescribed authority in the prescribed manner. Rules:- The State Gllvernmenthas made the followingrules in exercise of the powers conferred by this section. These Rules shall be found under Rules given separately. 1. "Panchayats (Budget Estimates) Rules, 1997". 2. "Zila Panchayats (Budget Estimates) Rules, 1997". 3. "Janpad Panchayat (Budget Estimates) Rules, 1997". 4. Gram Palichayat (Annual Accounts and Administration Report) .Rules, 1998'''. 5. Janpad Panchayat and Zila Panchayat (Annual Accounts and Ad. ministration Report) Rules, 1998". ' . 6. "Zila Panchayats (Accounts) Rules, 1999:' 7. "Gram Panchayats (Accounts) Rules; 1999" 8. "Janpad Panchayats (Accounts) Rules, 1999" CHAPTER IX. TAXATIONAND RECOVERY OF CLAIMS 1[74. Power to levy Cess on Iand ..(l) Every tenure holder and Government lessee shall be liable to pay for each revenue year for the ~urpose of this Act, a cess in respect of land held by him within the [Gram Sabha area,] at the rate of fifty paise on every rupee or part thereof exceeding fifty paise on the land revenue or rent assessed on such land. (2)A 3[Gram SabhaJ may increase the rate specified in sub- section (I) to the extent of ten rupees through a "esolution passed to this effect. in the prescribed manners . ..' ,(3)The Cess levied under. sub-section II) and (2) and the develop- , ment'tax leVied'un:aer suo.:'secHon13'fofSettlon77'shan'be in""addition to the land revenue or rent Orany other cess or tai< 011sJlch land _under -' "the'Madhya 'PfifdeSl(Uuid'Reven:ue'CoQ'e,: 1959 (No. 20 of 1959) or under any other enactment for the ttrrie being In force and shall be , 1 Subs.byMP 2of1997[1-10.19981.. 2 Subs.byM.P. Act 23of2001(10-10-2001). 3 Subs.byM.P. Act 23of2001[10-10-2001). • • • • (PAlU4 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 8.71 3. Appointment of other officers & servaIits -Previous approval necessary.-A Panchayat cannot appoint a Secretary or C.E.O. of the Panchayat, but it can appoint such other officers and servants. A close reading of Sub-section (1) of S.70 further makes it clear that the previous approval ofthe Prescribed Authority is required not to a named officer or named servant but to the appointment of such officers other than the Secretary and servants as the Panchayat considers necessary for the efficient discharge of his duties. Mano) Kumar Yadav v. State afM.P., 2008(4) MPHT 22 = 2008(11) MPWN 70 [DB]. . See also: Comments under Section 69. Rules:- The State Government has made several rules in exercise ofthe powers conferred by this section. These Rules shall be found under Rules given separately. 71. Deputation of Government servant.-The State Government may depute to the service of the Panchayat such of its servants as it considers necessary. The service conditions of such deputed servants shall be such as may be prescribed, by the State Government from time to time. COMMENTARY . Unlawful Deputation.-Petitioner holdjng a cadre post in M.P. Accounts Services of the State Government, transferred to Zila Panchayat est1l.blishment on deputation without his consent. Transfer is unsustainable and is quashed. Respondents may have a right to post the petitioner in the Zila Panchayat as he is holding a cadre post in the State Government which permits posting ofsuch an employee to the Zila Panchayat, but such posting would amount to transfer of the petitioner on deputation to the Panchayat as per the Panchayat Service (Recruitment and General Conditions of Services) Rules, 1999 and therefore, the same can be done only by seeking. his consent and following the rules and procedure contemplated for posting ofan employee on deputation. In viewofthe aforesaid, it has to be held that posting of. the petitioner in the establishment of Zila Panchayat is on deputation and the same without his consent is unsustainable. P.K. Jain v. State of M.P., 2010(3) MPLJ 340 = 2010(3) JLJ 137. , 72. Functions of Chief Executive Officer and Secretary.-The functions of Secretary of a Gram Panchayat,i Chief Executive Officer of Janpad Panchayat and I[Chief Executive Officer of ZlIa Panchayat] . shall be such as may be prescribed. . , Rules:- The State Government has made the following rules in exercise of the powers conferred by this section. These Rules shall be found under Rules given separately. 1 Subs. by M.P. 26 of 1994 [30.5.94) for thewords "Secretary ofZila Panchayat". • • • • • • 8.70 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)123 ';'- Panchayat by adopting a resolution was not correct either on facts orin law. Ramlakhan Rawat v. State of M.P., 2000(2)MPLJ 176 = 2001(J)JLJ 280, [OVERRULED]. Devidayal Raikwar v. State of M.P., 2009(1) JLJ 7 = 2008(4) MPLJ 647 = 2008(3) MPHT 505[DB]. [5]In every Gram Panchayat there is only one post ofPane hay at Karmi and there cannot be reservation in case of a single post. Lallu Kal v. State of M.P., 2008 (4) MPLJ 418 = 2009(1) MPWN 27. [6]As empowered by S.86(1), Gram Panchayats can make appointments afPanchayat Karmi after a period of thirty days. Lallu Kal v. State of M.P., 2008 (4) MPLJ 418 = 2009(1) MPWN 27. [7] Selection & appointment by C.E.O. not permitted.-Far the purpose of S.69 prescribed authority is Collector and for -So70 Collector/Add!. Collector. Therefore, on failure to discharge the liability ofS.86(2) the process ofselection and appointment ofPane hay at Karmi must be made by them or under their close surveillance and approval but selection and appointment done since inception till completion by the Chief Executive Officer, without any approval of the prescribed authority. Such action cannot be recognized, akin to approval the act of prescribed authority and donot have the protection under the provisions ofthis Act as specified under sub-section (2)ofSection 86 ofthe Act. Moreover as per the discussion made hereinabove, it is apparent that C.E.O. has acted with the bias ofarbitrariness in the matter of preparation of selection list, therefore, .also selection panel and process of selection is liable to be quashed. Ramniwas v. State of M.P., 2008 (2) MPLJ 297 = 2008(3) JLJ 136. [8]Powers of Collector u1s.86.-The Panchayat failed to comply directions issued ufs.70 of appointing a Panchayat Karmi. In such a case, the Collector as the prescribed authority had the power under Sub-section (2) ofS. 86 to authorise the Chief Executive Officer ofPanehayat to appoint a Panchayat Karmi. Leelawati v.State ofM.P., 2008(4) MPHT 470 =2008(3) MPWN 86 [DB]. [9] Proper order of Appointment is essentia!.- The resolution of a decision in a meeting is not the order which can be given effect to. There should be a proper order pursuant to the resolution for appointment to the post of Panchayat Karmi. Respondent NO.5has been permitted to work as Panchayat Karmi on the basis ofresolution passed by the Gram Panchayat and approved by Gram Sabha. No legal order has been passed appointing him on the post of Panchayat Karmi. With regard to the next contention that the relatives, i.e. the brother and the upcle are elected Up Sarpanch and Sarpanch of the Panchayat is concerned, that also disqualifies the respondent NO.5for being appointed as Panchayat Karmi. The SDO has rightly reje1:te<ttheappeal1tevision.Bholilfam1Verma~v. State ofChhattisgarh, 2007(3) MPHT 25(CG). [10] Court cannot exercise suo motu powers.-Court cannot suo motu .decide whether the resolution adopted by the Panchayat was in VIOlationof Clause 3.4 of the Parichayat Karmi Yojna. Whether there has been such a violation or not could be decided only after replies were filed by the respondents and not at the stage ofmotion or admission. Mana}Kumar Yadav v. State of M.P., 2008(4) MPHT 22 = 2008(ll) MPWN 70 [DB]. " , .'. • , • • • • (PA)122 PANCHAYAT RAJ AVAM GRAM SWARM ADHI., 1993 8.70 i of prescribed authority appoint such other officers and servants as it considers necessary for the efficient discharge of its duties. (2) The qualifications. method of recruitment. salaries. leave. allowance and other conditions of service including disciplinary matters of such officer and servants shall be such as may be prescribed. COMMENTARY 1. Panchayat Karmi Yojna not notified in the Gazette and it is not rules.-The Panchayat Karmi Yojna under S.70 is not notified in the Gazette and not referable to rules under the provisions of the Act as the Scheme makes reference only to the provisions of sections 69 and 70 of the Act and not to the rule making power of the State Government. The conditions contained for appointment ofofficers and servants in the scheme cannot be treated to be Rules prescribing qualifications, conditions etc. but only executive instructions to the Gram Panchayat. Ashok Kumar Kaurav v. State of M.P., 1999 (2) MPLJ 729=1999 (2) JLJ 273. 2. Some cases related to Appointment of Panchayat Karmi.[IJ Appointment on merit basis is necessary.-Gram Panchayat Karmi appointed by_majorij;yof voting not on merit basis of candidates in terms ofthe scheme foi iippoiritmentofPailchayhtK':tiiii, ~eieCtwn'Process vitiated since the norms and the criteria fixed for the selection has not been followed by the Gram Panchayat. Piajapal Singh v. State of M.P., 2009(1) MPLJ 640 = 2009(1) MPWN 24 = 2008(5) MPHT 421. [2] Order and Resolution both are different terms.-If Gram Panchayat passes a resolution to select a person on the post of Panchayat Karmi, it would amount to resolution not amounting to an order, but if it passes a resolution selecting and appointing a person thereby on the post of Panchayat Karmi such kind of resolution may amount to an o;der in substance and not merely a proceeding of Gram Panchayat and an appeal against it may bepreferred beforethe S.D.a.Abdul Hussain Qureshi v. State of M.P., 2008 (4) MPLJ 546 = 2009(1) JLJ 320 = 2009(1) MPHT 322. [3] In Panchayat Karmi Yojna, there is no condition that a candidate must have latrine in order to qualify himselffor being appointed on the post of Panchayat Karmi and this condition could not have been added as a mandatory qualification for the candidate seeking appointment on the post of Panehay at Karml. Vishnu Dev Pandey v.\State of M.P., 2008 (4) MPLJ I, I [4] Appeal shall lie & Appellate AjIthority have necessary powers ••Th;, provisions ofan Act cannot be interpreted by reference to the . provisions of a Scheme made by the Government to give effect to the provisions of the Act, but has to interpreted by reference to the provisions of the Act. Hence against an order of appointment of Panchayat Karmi issued by the Sarpanch pursuant to the resolution ofthe General Body of a Gram Panchayat an appeal would lie to the S.D.a. under Section 91 of the Adbiniyam read with Rule 3 of the Rules of 1995. Held, obviously, while deciding the appeal, the Appellate Authority will have all necessary powers to grant reliefin a case where he decidesto allowthe appeal and such powers ",ill "11ilJl;,>;>el"'QP tl;>pnpwprt\l dp~w~th.'lrthf ~QI) ~lI.e bv~ Q,r\l.I1j a = . . S.70 PANCHAYAT RAJ AVAM GRAMSWARAJ ADHI., 1993 (PA)121 an order passed by the SDO. Entire process was not initiated by the Gram Panchayat in appropriate manner and improperly the resolution was passed by the Gram Panchayat for making appointment ofPanchayat Karmi. Such an act of Gram Panchayat cannot be approved. High Court in various cases found that improper procedure has been adopted by the Gram Panchayats for making appointments of Panchayat Karmis, so that such persons after their notification as Secretary ofthe Gram Panchayat, may act according to the choice ofthe concemed Sarpanch. This is not the object ofmakirig such a scheme and, therefere, the High Court will not hesitate in quashing such proceedings. Rajkumar Kushwaha v. State of M.P., 2013(1) MPLJ 238 = 2013(1) MPWN 24 = ILR 2013 MP 53. ; 7. Relat1ve.-The meaning of the term 'relative' in both sections 40(1) and 69(1) in the absence of specific definition, refers refers only to father, mother, brother, sister, husband, wife, son, daughter, mother-in-law, fatherin-law, sister-in-law, 800- in-law and daughter-in-law but does not include uncle-in-law and co-sister of mother-in-law. Jamna Bai Mehra v. State of M.P., 2004 (4) MPLJ 274=2005 (1) MPWN 46=2004 (4) MPHT471 (DB). 8. Withdrawal of additional charge.- A Panchayat Karmi wasappointed Panchayat secretary, an additional charge, in exercise of powers under sub-section (1). Petitioner committed irregularities ofseripus nature. Collector withdrawing additional charge pending result of enquiry. It is proper. Hariam Singh Rajput v. State of M.P.; 2002 (3) MPLJ'204=2002 - - (3) MPHT 541. 9. Competent Authority to pass the suspension order.-The petitioner, while working as Panchayat Karmi, was appointed as Panchayat Secretary, challenged his suspension order which was passed by theCEO, Janpad Panchayat and urged that the said order was passed in lack of jurisdiction by the CEO and CEO was not competent to pass such order. Held it is true that the Joint DirectorlDeputy Director, Panchayat and Social Welfare Department is the competent officer under S.69(1) of the Act and under the MP/C.G. Panchayat Service (Discipline and Appeal) Rules, 1999. . But the MP/CG Civil Services (Classification, Control and Appeal) Rules, 1966 are applicable to all the employees ofthe State Govemment including Panchayat Services and it provides for suspension under second proviso of the Rule 9, if the order ofsuspension is made by an authority lower theil the Appointing Authority, such authority shall forthwith report to the Appointing Authority the circumstances in which the order was made. The facts of reporting suspension to the JointlDeputy Director, Panchayat and Social Welfare Department, Raipur is bome out froIl) the impugned order itself, which has been marked to the concemed authority. Therefore the impugned suspension order was properly passed. Ramnarayan Sahu v. State ofChhattisgarh, 2006(2) CGLJ (CG) 406 = 2007(1) MPHT 105 (CG). , See also: Maal Chand Sani v. State ofM.P., 2007(2) MPHT 133. See also: Comments under S.70. 70. Other officers and servants of Panchayat. -(I) Subject to the provisions of Section 69 every panchayat may with previous approval (PAl120 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 8.69 6. Second proviso (as inserted by M.P.Act 2 of 1997, w.e.f.7-11997)-Scope and effect..operative against persons holding such post.-The second proviso inserted by M.P.Act 2 of 1997, w.e.f. 7- 1-1997 provides that a person shall not hold charge of Secretary if such a person [ happens to be relative ofany offiGebearer ofthe concerned Gram Panchayat. Panchayat Secretary is an important functionary of the Gram Panchayat [ [ and he has to perform various statutory functions which include recording of minutes, proceeding and decision of every meeting of Gram Sabha. The legislature in enacting the aforesaid provision thought that any nexus between the office.bearer ofa Gram Panchayat and the Panchayat secretary shall destroy the basic fabric on which the institution of Gram Panchayat is based or it may lead to corruption and nepotism and and such it enacted in mandatoryfonn that a person shall not hold charge ofa Secretary ofGram Panchayat if such a person happens to be the relative ofany officebearer of Gram Panchayat. r A plain reading of the aforesaid provision makes it clear that continuance ofa person as a Panchayat Secretary is prohibited if such a person happens to be the relative ofany officebearer ofGram Panchayat. Although there was no such impediment before 7-1- 1997 and there may be certain persons holding such officeseven though they happen to be relative of some officebearer, in view ofthe provision now made, they cannot be allowed to hold charge of the Secretary any more. Use of the expression 'shall' in this .. proviso raise,;"a'j>resurnj>tionthat prohibition ofa fE,lativeofanoffice'Dearer ..... ,., of any Gram Panchayat to hold charge of the secretary is imperative. Another reason of such interpretation is the negative expression in the proviso. The prohibitory or negative words are rarely directory. It means that Panchayat Secretaries who were appointed even prior to 7-1-19978 cannot be allowed to hold charge of the Secretary. They cannot be allowed to hold office even as Panchayat Karmis because Panchayat Karmi and Panchayat Secretary are different and distinct entity. Pmhlad Singh Patel v. State of M.P., 2000 (1) MPHT 89=1999 (2) JLJ 374. 6-A, Bar against appointment of a Panch as Panchayat ,Karmi.---" Specific provisions have been made under the Act for not allowing any person to join the services or to notify him as Secretary of the Gram Panchayat under S.69 of the Act where it is specifically said that a person shall not hold charge of Secretary of Gram Panchayat if such a person happens to be the relative of any office bearer of the concerned Gram Panchayat. If a relative of the officebearer of Gram Panchayat is not to be permitted to hold the charge ofthe post ofSecretary ofthe Gram Panchayat, how could a Panch ofvery same Gram Panchayat be appointed on the post as Fanchayat Ka,;"i. "':.h.i~hn~e~t_0~1ya~d o~lrf()rnoy~ng~ucll a person .t!s SeCI'l!taryof the Gram Pancliayat. The bar Itself created under the Act was there against the petitioner and Collector rightly held that the '-petitilmer'wasifleligibl,fto'be appoiiited on'Hi" post of Panchayat Kanni. Prahlad Das Tandla v. State of M.P., ILR 2013 MP 279. G-B. Gross irregularities/improper procedure would be cure even in writ petition.-The Court cannot shut its eyes to the gross irregularities committed in the matter of appointment in case the same is brought to the notice in the Court even in a writ petition filed against such " ~' 8.69 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)119 = 2009(1) MPWN 27. 4. Improper removal order from the p~st of Secretary.[1] Without charge sheet removal order from service.- Without charge sheet removal order from service issued to Panchayat SecretarylPetitioner; As per M.P. Panchayat Serv(ce (Discipline and Appeal) Rules, 1999 removal from service of Panchayat Secretary is a major penalty and procedure for imposing major penalty is provided in Rule 7. Thus, the said order issued in contravention ofRule 7hence not sustainable. Kailash Babu Rai v. State o(M.P., 2008 (3) MPLJ 648 = 2008(3) JLJ 392. [2]Without inquiry major penalty imposed.-Order ofmajor penalty cannot be passed unless a formal inquiry is held. Unless the procedure laid down in Rule 7 of M.P. Panchayat Service (Discipline and Appeal) Rules, 1999 followed, Secretary of the Gram Panchayat cannot be removed or reverted from the post ofSecretary, Gram Panchayat. Lalla Prasad Burman v. State o(M.P., 2008 (3) MPLJ 394 = 2008(3) MPHT 26 = 2008(2) MPWN I01.DB. [3] Opportunity of hearing is necessary.-Without giving opportunity of hearing and without considering the reply of show cause notice penalty imposed. Order is illegal, as has been passed in violation of the instructions issued by the Government as well as principles of natural justice. Gram Panchayat, Bamrol v. Jagdish Singh Rawat, 2008 (3) MPLJ 127 = 2008(4) MPHT 132 = 2008(2)MPWNI02 PH. ..._.... See also: Neelesh Dubey v. State o(M.P., 2007(3) MPLJ 349 = 2007(4) MPHT431. [4]Joint Director cannot issue notice.-Joint Director ofPanchayat and SocialWelfare cannot issue show cause notice regarding the withdrawal ofpower ofPanchayat Secretary. Notice issuing power and removing power both vests in the Collector who is appointing authority under S.69(1). Gram Panchayat, Bamrol v. Jagdish Singh Rawat, 2008 (3) MPLJ 127 = 2008(4) MPHT 132 = 2008(2) MPWN 102 DB. , [ .1., 5. On belialfoftliePanchayat the Sarpanch cannot sue arid file' an appeal independentIy.-Under S.l1 Gram Panchayat being body corporate can sue and can be sued. The power shall not vest in Sarpanch but it will vest in the whole body of the Gram Panchayat and if thePanchayat wants to sue or to file an appeal, the Panchayat has to pass a' resolution authorising either to Sarpanch, or Up-Sarpanch or to any Panch or to file appeal or Writ Pctition Or any other petition. Rule 3 of the M.P. Gram Panchayat (Powers and functions ofthe Secretary) Rules,1999Rt6vides that executive power of Gram Panchayat shall vest in the I'anchay!l't'Secretary, who will exercise the.executive power, but in these Rules alSoitj.s nowhere provided that who will sue on behalf of the Panchayat,.Helil, therefore we are of view that Gram Panchayat i$ a body corporate, having power to sue or to be sued, and the Gram Panchayat has to authorise somebody to act on its behalf and without the resolution by authorising anypcl'son to sue of behalf ofthe Panchayat, the Sarpanchcannot sue and appeal independently. Gram Panchayat, Bamrol v. Jagdish Singh Rawat, 2008 (3) MPLJ 127 = 2008(4) MPHT 132 = 2008(2) MPWN 102 DB. i,I'. :[lit ;"j ',1 ., ;' " • 8.69 (PA)118 PANCHAYAT lIM AVAM GRAM SWARM ADHI., 1993 COMMENTARY , SYNOPSIS 1. Scopeof Sections69and70. 2. Limited powers of Collector. 3. Prohibitionapplyonlyonthepostnf Secretary. 4. Improper removal order from the post of Secretary. 5. Onbehalfofthe PanchayattheSarpanchcannotsueand file an appealindependently. 6. Secondproviso(as insertedby M.P.Act2 of 1997,w.eJ.7-1I997)-Scopeandeffect-Operativeagainstpersonsholdingsuch post. 6~t\.Bar against appointment of a Panch as Panchayat Karmi. 6-B. Gross irregularities/improper procedure would be cure even in writ petition. 7. Relative. R. Withdrawal of additional charge. I). Competent Authority to pass the suspcl1:-,ion order. 1. Scope of Sections 69 and 70.-From the provisions in sections 69 and 70 it is noticed that both sections act in distinct spheres; first in relation to the appointment ofPanchayat Secretary while the second in relation to the appointment ofother officers and servants ofthe Panchayat. Section 69 .provides for appointment ora secretary only by.State Government orthe ...• prescribed authority. Sub-section (1) does not grant any power to leave the matter ofappointment as Secretary.in the hands ofany authority other than the pre><Tibeuauthority or State Gnvernment. The Panchayat Karmi Yojna virtually transfers this power to the Gram Panchayat as appointment of P'I'.chayat Karmi is made by Gram Panehayat and by deeming provision introduced in the scheme, Panehayat Karmi is appointed as Seeretary. The Panchayat Karmi Yojna has not bem notified in the Gazette and therefore, the Gram Panchayat caimot act as a prescribed authority and by such general executive instructions, the requirement of making appointment by the State Gnvernment or the prescribed authority under section 69 cannot be circumvented. APanchayat Karmi appointed under the scheme does not acquire the status ofSecretary ofthe Panchayat under section 69(1) unless specifically appointed by a competent authority under that provision. Ashoh Kumar Kaurav v. State of M.P., 1999 (2) MPLJ 729=1999 (2) JLJ 273. 2. Limited powers of Collector.-Collector is an appointing authority of the post of Secretary and Gram Panchayat is appointing authority of Panchayat Karmi under S.69 ofthe Act. Since the Collector is an appointing authority ofthe post ofSecretary only therefore he is empowered to suspend .a Secretary from the post of Secretary. and not 'from his post of Panchayat Karmi. Kamlesh Dubey v. State of M.P., 2009 (1) MPLJ 545 =2009 (2) MPHT372. 3. Prohibition apply only on the post of Secretary.-Second proviso to Sub-section (1) prohibits a person from holding charge of Panchayat Secretary, if such a person happens to be relative of any officebearer ofthe concerned Gram Panchayat but it cannot prohibits appointment of such person as Panchayat Karmi. Lallu Kol v. State of M.P., 2008 (4) MPLJ 418 \ I I ! t II, I . - • • (PA)190 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 Sch. , 16. Poverty alleviation programme. 17. Education including primary and secondary schools. 18. Technical training and vocational education. 19. Adult and non-forinal education. 20. Libraries. 21. Cultural activities. 22. Market and fairs. 23. Health and sanitation, including hospitals, primary health centers and dispensaries. 24. Family Welfare. 25. Women and Child development. 26. Social Welfare, including welfare of the handicapped and mentally retarded. 27. Welfare of the weaker sections, and in particular of the Scheduled Castes and Scheduled Tribes. 28. Public distribution system. 29. MairItenance of community assets. •, Ii , J ., Sch. PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)189 6. A temporary tax for special works of public utility. 7. A tax fof the construction or maintenance of publ1c latrine>: and a general scavenging tax for removal and disposal ofrefus<!! 8. Fees for bullock-cart stand and tonga stand. 9. Fees for temporary structure or any projection over any public place or temporary occupation thereof. 10. Fees for grazing cattle over the grazing grounds vested in the GramSabha. 11. Any other tax, which the State legislature has power to impose under the Constitution of India.] (See Section 80) ,, LEASE OF COLLECTION OF FEES BY GRAM PANCHAYATS 1. A fees on persons exposing goods for sale in any market or any place belonging to or under the control of Gram Panchayat or for the ,. . use of any building or structure therein. 2. A fees on the registration of cattle sold in any market or place belonging to it under the control of the Gram Panchayat. "3. Afee for the useofsarais,dharamshaias, reSU19_uses,slaughter. _ hOtis~s andericampiriii'grbunds. . . . 4 ..'A fee for bullock-cart stand or tonga stand. 5. A fee for grazing cattle over the grazing grounds vested in Gram Panchayat. . 6. Any other fees imposed by Janpad PanchayaL ,, , r