P., 2003 (3) MPLJ 260=2002 (5) MPHT 523, Faiz Mohd Faiz v. Stateof

1. Short title, extent and commencement. . 2. Definitions. . , . (PA)!6 (PA)!7 3. 4. 5. 5-A 6. 6-A. 6-8. 6'C. 7. 7-8. 7-C. Notification of village ,. List of voters of a village . Registration of voters of a village . Constitution and ir~rorporation of Gram Sabha ~ . Meeting of Gram Sabhd ~ . Special Meeting of Gram Sabha , . Secretary of Gram Sabha._ ; ', (PA)20 (PA)20 (PA)20 (PA)22 {PA)22. [PA)28 (PA)29 - - -- - .. . [PA)29 [PA)30 Decision by Brani Sabha ~'-:.:: ,: . Powers and functions and Annual meeting of Gram Sabha. .. . Standing Commiltee and Adhoc Committee of Gram Sabha. .. . 7-A. (PA)34 {PA)34 (PA)35 CompoSition and functions of standing committee .. Omitted. 7-0. 7-E. 7-1". Powers, functions and duties of Committees . -Removal.of lllen1ber , . Powers and duties of Gram Nirman Samitl and Gram Vikas Samiti. . Secretary of Standing Committee . PreparIng of long term development plan of Gram Sabha. . . Disciplinary action against preSid,~nt and members of the Gram Nirman Samiti and Gram Vikas . Appeal in a Committee against the \lecision of Gram Sabha. .. , . Budget. . Gram Kosh. .. . Account and Audit. . (PA)35 (PA)35 (PA)35 (PA)36 (PA)36 [PA)36 [PA)36 (PA)36 [PA)37 [PA)38 (PA)38 7-G. 7-GA 7-GB. 7-H. 7-1. 7-J. 7-K. 7-L. 7-M. Control over Government employees . Power of State Government in relation to functions of Gram Sabha. .. . ." PANCHAYAT RAJ AVAM GRAM SWARAJ ADH/., /993 (PA)9 8. Constitution ofPanchayats . 9. Duration of Panchayat. . 10. Establishment of Gram Panchayat. Janpad Panchayat and Zila Panchayat. . (PA)38 (PA)38 (PA)39 (PA)39 (PA)40 (PA)40 . (PA)42 (PA)42 II. Incorporation of Panchayats . 16. Omitted. 12. Division of Gram Panchayat into wards . 13. Constitution of Gram PanchayaL . 14. Qualification to vote and to be candidate . 15. Prohibition of simultaneous membership . 17. Election of Sarpanch and Up-sarpanch : 18. 'Handing over charge by out going Sarpanch or. President of Gram Nirman Samiti . 19. Notification of election . 20. First meeting and terms of office . 21. No confidence motion against Sarpallcll and UpSm'panch. . . (PA)42 (PA)44 (PA)45 (PA)45 (PA)46 21-A, Recalling of office bearers of Gram Panchayat. . (PA)58 (PA) 59 (PA)59 24. Omitted. - "._' . 22. COlnposition of .Janpad Panchayat. . 23. Division of Block into constituencies . 25. Election of President and Vice-President ofJanpad Panchayat. ..........•..........-: . 26. Publication of names of members, President and Vice-President. . . 27. First meeting and term of office : . 28. Noconfidence against President or Vice-President. . 29. Constitution ofZila Panchayat . 30. Division of district into constituencies . 31. Omttted. 32. Election of President and Vice-President of Zila Panchayat. . . 33. Publication of names of members, President and Vice-President of Zila Panchayat . (BA)61 (PA)62 (PA)G3 (PA)63 (PA)65 (PA)66 (PA)67 (PA)68 (PA)68 33-A. Correction of clerical error or omission . 34. First meeting and term of office , . 35. No-confidencemotion against President and VicePresident of Zila Panchayat . 36. Ri~qualificatipn fqr being offiqebearer of 'Panchayat. - . 37. Registration of office-bearerofPanchayat.. . 38. Fillingup of vacancies . 39. Suspension of officebearer of Panchayat. . 40. Removalof officebearer of Panchayat . 41. Bar to hold more than one office . (PA)68 (PA)69 (PA)70 (PA)79 (PA)79 (PA)81 (PA)85 (PA)92 (PA)lO PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 42. Conduct of Election. (PA)93 42-A. Power to appoint officers and staff and to assign duties and functions to them. (PA)94 43. Powers to make rules. (PA)94 44. Procedure of meeting . 45. Reconsideration of subjects finally disposed of by Panchayats. . . 46. Standing Committees of Gram Panchayat. . 47. Standing Committees ofJanpad Panchayat and Zila Panchayat. .. : : . (PA)94 (PA)96 (PA)96 (PA)96 (PA)99 47-A. Resignation. .. . 47-B. Dispute regarding validity of election of Member or Chairman. . . 4S. Powers and duties of Sarpanch. UpSarpanch. (PA)99 , (PAI9.9 (PA)100 (PA)lOO (PAll01 President and Vice- President.. . CHAPTER VI.FUNCTIONS OF PANCHAYATS 49. Functions of Gram Panchayat. . 49-A. Other functions of the Gram Panchayat. . 50. Function~ o'fJanpad Panchayat. . 51. Entrustment of certain functions by State Govemment to Janpad Panchayat.. . 52. Functions of Zila Panchayat . 53. Powers of State Government in relation to functions of Panchayats : . 54. Powers of Gram Panchayat as to public health facilities and safety . 55. Control of erection of building . 56. Hindrances, obstructions and encroachments upon public streets and open sites . (PA)l03 (PAll03 (PA)105 (PAll06 (PAll06 (PAll07 56-A. Delegation of powers ofGram Panchayat under Section 55 and 56. . . 57. Powers to name streets and number of building . 5S. Regulation of markets or melas . (PAllOS (PAllOS (PAllOS 59. Powers ofJanpad Panchayat to turn, divert. discontinue or close roads ~' . 60. Encroachments upon road and land vested in Janpad Panchayat. . , . 61. Power to compromise , . CHAPTER VI.A. COLONIZATION (PAll09 (PA)109 (PA)109 (PAll10 (PAll10 (PAll11 (PAll11 61-A. Definitions. .. . 61-B. Registration of Coloniser . 61-C. Development of Colonies , . 61-D. Punishment for illegal Colonization . •• PANCHAYAT RAJ AVAM GRAM SWARAJ ADHl., 1993 (PA)11 61-E. 6 I-EA. 61-F. Transfer of plots in area. of illegal diversion of illegal colonization to be.void (PA)l12 61-G. Forfeiture of the land'involved in illegal colonIzat~on. (PA)l13 Punishment for abatment of Offence of illegalcon- struction. . , , . , (PA)l12 (PA)112 ................................................ 62. State Government may vest certain property in Panchayai. . 63. Assignment of funds to the Panchayat . 64. Grant-in-aid to Panchayat. . 65. Transfer of immovable property . 66. Panchayat Fund. .. . 67. Mode of executing contract. ..~ . 68. Powers to make grant~in-aid . CHAPTER VIII-ESTABLISHMENT, BUDGET AND (PA)114 (PA)l14 (PA)l15 (PA)l15 (PA)115 (PA)l16 [PA)l16 ACCOUNTSOFPANCHAYAT 69. Appointment of Secretary and Chief Executive Ofiker. (PAll16 70. Other officers and servants ofPanchayat [PA)l21 71. Deputation of Government servant [PA)l24. 72. Functions of Chief Execrttive Officer and Secretary. .(PA)124 • 73. Budget and annual Accounts. ...•............................. (PA)l25 CHAPTER IX.TAXATION AND RECOVERY OF CLAIMS 74. Power to levy cess on land (PA)l25 75. Duty on transfer of property within block................ [PA)l26 76. District Panchayat Raj Fund. [PA)l26 76-A. Distrihutlon of amount amongst Panchayats. [PA)l27 77. Other taxes. [PA)l27 77-A. Power to impose tax ........................•....................... (PA)l28 78. Power of State Government to regulate taxes [PA)l28 79. Appeal against taxation........................................... (PA)128 80. Lease of market fee etc. [PA)l28 81. Recovery of arrears ;.................................... (PA)l28 82. Penalty for evasion. [PA)l28 83. Power of State Government in regard to relief in taxes. (PA)l29 . CHAPTER X.CONTROL, .:"84.JpsPec1jon of.work ofPanchayats (PA)l29 85. Power to suspend execution of orders etc. [PA)l29 86. Power of State Government to issue orders directing Panchayat for execution of works in certain cases. [PAl133 87. Power of State Government to dissolve Panchayat for default, abuse of powers etc (PA)136 , ;, I (PA)12 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 88. Inquiry into affair" of Panchayal. ............................ [PA)l42 89. Liability of Panch etc. for loss. misapplication ......... (PA)l42 90. Disputes between Panchayats and other local authorities. ................,............................... (PA)l46 91. Appeal and revision ................................................. [PA)l46 92. Power to recover:. records, articles and money .......... (PA)l5I 93. Delegation of powers' ............................................... (PA)l53 94. General Power of Control. ........................................ (PA)l53 CHAPTER XI.RULES AND BYELAWS 95. Power to make rules ................................................ (PA)l54 96. Byelaws. ................................................ (PA)l54 97. Model Byelaws. ................................................ (PA)155 . 98. Penalty [or acting as panch, menlber, sarpanch. up-sarpanch. President. Vice-President. Zila Pradhan, Zila Up-pradhan when disqualified ................. (PA)l55 99. Penalties for interested members voting................ " {PA)l55 100. Penalty for acquisition by a member, office bearer or servant of interest in contract. ............................ {PA)155 101.102. WrongfulProhibitionrestraintagainstofobstructionofficers. etcof............................member etc. of (PA)l56 .\ Panchayats. ................................................ (PA)156 I, 103. Prohibition against removal "ofobliteration notice.: .. (PA)156 104. Penalty for not giving information or giving false infonnation. ................................................ (PA)156 105. Prohibition of bidding ..... "........................................ (PA)157 106. Procedure to make good the damage to any Panchayat. ................................................ (PA)157 107. Indemnity for acts done in good faith ...................... (PA)157 108. Bar of suit in absence of notice ............................... [PA)157 109. Certaindefendedsuitsat costagainstofPanchayatmembers.orofficers.Gram Sabhaetc. to........-be (PA)158 \ 110. Bar of other proceeding in respect of tax etc ............ (PA)158 Ill. Members and servants of Panchayat to be public servant. ................................................ (PA)l58 112. Vacancy or defect in constitution o~procedure. etc. not to invalidate Act of Panchayat.. ................... [PA)158 113. Acquisition of land. ................................................ (PA)158 114. Central Government or State Government not.to obtain licence of permission .................................... (PA)159 115. Power of Panchayat to borrow money ...................... (PA)159 116. Writing off of irrecoverable sums and unuseful material. ................................................ (PA)159 117. Prohibition of remuneration to members, etc .......... [PA)159 118. Records of Panchayat or Gram Sabha open to in- (PA)160 spection. ................................................ T I I PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PAl13 119. Method of serving documents, etc . 120. Entry lor purposes of Act etc c . 121. Bar to interference by courts in electoral matters . 122. Election petition. .. . 123. Power to expel persons who refuse to pay fee . (PAl160 (PA)l60 (PA)160 (PA)l60 (PAI17S '124. Panchayat or Gram Sabha in default of owner or occupier may execute works and recover expenses. (PA)l7S 125. Change of headquarters of Gram Panchayat, division, amalgamation and alteration of Panchayat area. . . 126. Disestablishment of village . 127. Alteration in limits of block and Zila Panchayat. . 12S. Management of Government lands . (PA)17S (PA)l79 (PA)lSO (PA)lSO 129. Audit of Panchayats. (PAlISO 129-A. Deflnition.s.. (PA)IS1 129-B. Constitutio", of Village and Gram Sabha (PA)lSI 129-C. Powers and functions of Gram Sabha...................... (PA)IS2 129-0. Functions of Gram Panchayat. (PA)lS3 129-E .. .Reservation of seats ::::'.::'::::; ,,:.,........•... " •.••...;.••.'{PA)1S3. 129-F. Powers of Janpad and Zila Panchayat. {PA)lS5 CHAPTER XV.REPEAL 130. Repeal and saving (PA)lS5 131. Savings as to existing permanent employees (PA)lS6 132. Power to remove difficulties. (PA)IS6 SCHEDULES I to IV ,fPA)IS7 -190 THE MADHYAPRADESH PANCHAYAT RAJ AVAM GRAM SWARAJ ADHINIYAM, 1993 (No. I of 19(4) {Received the assent of the Governor on the 24th Jaiulary, 1994. assentjlrst published in the "Madhya Pradesh Gazette (Extraordinary)" dated the 25th January, 1994J.And subsequently amended by:- '. 1. M.P. Act No. 26 of 1994. w.e.f.30.5.1994: 2. M.P. Act No. 32 of 1994. w.e.f. 7,10.1994; and ,.~. M,p.,'\ct l'!9.'3~.o~ 'l~9!J, w.e.f,.19.12.1995. 4. M.P. Act NO.2 of 1997, w.e.f. 7-1-1997 but SS.16 & IS from 1-1O-199S. 5. M.P. Act No. 19 of 1997. 6. M.P. Act No. 43 of 1997. w.e.f. 5-12-1997. 7. M.P. Act No. 2S of 1995, w.e.f. 4-S-199S. S. M.P. Act NO.5 of 1999, w.e.f. 5-4-1999. I I I I (PA)14 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 9. Notfn. F.I-8-97-XXII-P-2.-Dated 20th March 1999, Pub.in Rajpatra Ext. dated 24th March 1999, p. 334, amending S.129-E(I) in Its app~'cation to the Scheduled Area. 10. M.P.Act No. 14 of 2000, w.eJ.26-1-2001. II. M.P. Act NO.3of 2001, w.eJ. 26-1-200 I. 12. M.P. Act NO.23of 2001, w.e.f. 10-10-2001. 13. M.P. Act NO.16of 2004, w.e.f. 1-1-2005 (except the amendments made in S.36. which came into force on 15-12-2004). 14. M.P. Act NO.8of 2005, w.e.f. 12-4-2005. 15. M.P. Act NO.20of 2005, w.e.f. 30-8-2005. 16. M.P. Act 27 of 2006, w.e.f. 1-9-2006. 17. M.P. Act 18 of 2007. w.e.f. 25-5-2007. 18. M.P. Act 26 of2011, w.e.f. 10-8-2011. 19. M.P. Act 26 of2012, w.e.f. 23-5-2012. 20. M.P. Act 21 of2013, w.e.f. 24-4-2013. 21. M.P. Act 29 of2013. w.e.f. 10-9-2013. Note:-The Provisions of the Madhya Pradesh Panchayat Raj (Sanshodhan] Adhiniyam, 200 I shall not apply to the Scheduled areas so far as they are inconsistent with the provisions ofChapter-XIV-A of the Act and the provisions of "ThePanchayats (Extension to the Scheduled Areas) Act, 1996 (No.40 of 1996)". An Act to consolidate and amend the law relating-to establishment ofPanchayats with a view to ensure effective involvement of the Panchayati Raj Institutions in the local administration and development activities COMMENTARY I. Intention of the Govemment.-It wouldbeclearfromthe Preamble that the intention ofthe Governmentwas toconsolidateand amend the law relating to establishment ofthe Panchayats and the laudable was to ensure effective involvement of the Panchayat Raj Institution-in the LocalAd-ministration and DevelopmentActivities.Ajay Tripathi v. State of M.P., 2009(1) MPLJ 75 = 2009 (I) JLJ 257 = 2008 (5) MPHT 195 (D.B.). 2. Purpose.-Tbe enactment is for the purpose of acquiring welfare of citizens. Kamal Kishore v. Janpad Panchayat, Nalkheda, 2000 (1) MPLJ 309= 1999(2)MPLJ 470= 2000(1)MPHT = 212= 1999 (2)JLJ 370. 3. Principles of Interpretation of Statutes.-[ I] Tbe law in the Court's keeping is just not a system of logical abstraction. Nor it is a bucket of readymade answers determined by any general formula or principle in advance. In a famous passage Mr. Justice Holmes said: "All rights tend to declare themselves absolute to their logical extreme. Yet all in fact are limited by the neighbourhoodofprinciples of policy which are other than those on which the particular right is founded, and which becomesstrong enough to hold their own when a certain point is reached. The boundary at which the conflictinginterests balance cannot be determined by any general formula in advance, • PANCHAYAT RAJ AVAM GRAM SWARAJ ADH1., 1993 (PA)15 but points in the line are helping to establish it, are fixed by decisions that th}s or that concrete case falls on the nearer or further side." Hudson County Water Co. v. Macrter, (1907) 209 US 349, (355-356). [2]It is true when a word has been defined in the interpretation clause, prima facie that definition governs wherever that word is used in the body ofthe statute unless the context requires otherwise. "The context" as pointed out in the book Cross- Statutory Interpretation (2nd Ed. 43) "is both internal and external". The internal context requires the interpreter to situate the disputed words within the section of which they are part and in relation to the rest ofthe Act.The external context involve determining the meaning from ordinary linguistic usage (including any special technical meanings) from the purpose forwhich the provision was passed, and from the place of the provisions within the general scheme ofstatutory and common law rules and principles. [3J To place a reasonable construction on any particular statutory prov,ision it will be the duty of the Court not only to read the provision first literally to construe it on its plain language but in order to clear doubts to read it also in its context and setting in conjunction with other cognate or coilateral provision of the same enactment. This course Is verily mandated by the superior and progressive norm of 'purposive interpretation' to advance and promote effectively the legislative Intent and object. Lest social welfare legislations may lose their force, efficacy and relevance upsetting the constitutional order. Laltaprasad v. Ramcharan, '1989 MPW 233 . . [41If the words used are capable of one construction only, then it would not be open to the Courts to adopt any other hypothetical construction on the ground that such construction is more consistent with alleged objects and policy of the Act. Shivrqj v. Ashalata, 1989 MPW202. [5) A decision cannot be applied as a precedent when there Is a difference In language of the provision. Ghanshyamdas Gupta v. Devilal, 1989 MPRCJ 173 (SC). 4. Legislative intent.-[l] Great artistry on the Bench as elsewhere is, therefore, needed before we accept, reject or modify any theory or principle. Law as creative response should be so interpreted to meet the different fact situations corning before the Court. For, Acts of Parliament were not drafted with divine prescience and perfect clarity. It Is not possible for the legislatures to foresee the manifold sets of facts and controversies which may arise while giving effect to a particular provision. Indeed, the legislatures do not deal with the specific controversies. When conflicting interests arise or defect appears from the .l'\Ilgul\ge ofthe statute, the Court. by consideration of the legislative. intent must supplement the written word with "forceand life".See, the .observation of Lord Denning in Seaford Estate Ltd. v. Asher, (1949) 2 !ill 481 at p. 498. Pushpa Devi v. Milkhi Ram, AIR 1990 SC 808. [2J .Where the language of the "tatute is clear, plain and unambiguous, it IS the plain duty of the Court to give effect to it. No amount ofhardship would call for not faithfully implementing the mandate of the Leglslature.Bihari Choudhari v. State of Bihor,1984 UJ (SC) 619. .. ; • , S.l 'I (PAJ1G PANCHAYAT RAJ AVAM GRAM SWARAJ ADHl., 1993 [31 It is a settled principle that the interpretation of the provisions of a statute should conform to the legislative intent as far as possible and tbe Courts should not take a narrpw or restricted view which will defeat the purpose of the Act. Vatanmal v. KaUashnath, 1989 MPRCJ 198. . I [4] Presumption is that a legislature.never useS surplusage of words. The meaning of statute which leads to manifest contradiction, or to some inconvenience or absurdity, hardship, injustice or that may do violence to legislative Intent is to be avoided. Interpretation of statutes should be reasonable and sensible. Shriniwas v. KeshJichand, 1985 RAJ LR 57. ! 5. Legislative drafting.-Legislatlve drafting will reach its peak of glory when perfection Is attained In demonstrably manifesting the legislative Intent by unequivocal language. But It is equally undeniable that language at Its best is a very imperfect vehicle cifconveying the Intent of the speaker. Legislature speaks through legislation and tries its utmost to convey what It intends to do by the legislation but even best of draftsmen cannot claim to attain perfection. State of Karnataka v. Hansa Corporation. AIR 1981 se 463. 6. Marginal Note.-The marginal note to a section cannot be referred to for the purpose ofconstruing the section but it can certainly be relied upon as Indicating the drift ofthe section or. to use the words uf Collins MI{in Busher v. Hammond, (1904) 2 KB 563. to show what the section is dealing with. It cannot control the Interpretation ofthc words ofa section particularly when the language ofthe section is "k, II and unambiguous but, being part of the statute.1t prima facie 11lI' nishes some clue as to the meaning and purpose of the section. Bengal Immunity Co. Ltd v. State of Bihar. AIR 1955 SC 661 = (1955) 2 SCR 603 Ref. KP.Varghese v. LT. OffICer.Ernakulam, AIR 1981 se 1922. 7. Retrospective operation.-The rule of construction of statutes is that no statute, unless It be a statute dealing with procedure only, should be construed to have a retrospective operation unless It so provides either expressly or by necessary Implication or intendment and a statute Is not be construed to have greater retrospective operation than Its language renders necessary. When a statute deprives a person of his right to sue or- affects that right, Its retrospective character must be clearly expressed. Gokuldas Pagelria v. Parmanand, AIR 1967 MP 265=1967 JW 581=1967 MPW 564. i , , , , Be it enacted by the Madhya Pradesp. Legislature In the FortyFourth Year of the Republic of India as follows:- 1. Short title, extent and]commencement.-(I) This Act may be called the Madhya Pradesh IPanchayat Raj Avam Gram Swarajl ,\c1hiniyam, 1993 1 Subs. by M.P.Act3 of2001. w.e.f.26.1.2001. 1-' , ' "" . , i ).1 I 8.2 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 I ons II ble I vill I, (PA)17 (2) It extends to the whole of Madhya Pradesh: I[Provided that it extends to the Scheduled Areas subject to the exceptions and modifications as are provided in Chapter XIV-A.] CJ (3) It shall come into force at once. of on, ay 2. Definitions.-In this Act, unless the context otherwise re- quires:- (I) "block" means such area in a distlict as the Governor ma)' 'specify to be a block under sub-section (2) of Section 10: . of ,d, 2[(i-a) 'Committee of Gram Sabha' means standing committee. ad n-;;'ccommittee or any other committee of members of Gram Sabha]; of he (ii)"Cooperative Society" shall have ihe same meaning assigned to it in the Madhya Pradesh Cooperative Societies Act, 1960 (No. 17 of 1961); de 1e es 'n 3[(ii_a)'Development Commissioner' shall have the same. meaning as assigned to it in clause (h) of Section 2 of the Special Economic Zones Act, 2005 (28 of 2005)); 4[(iii)'District' means a district notified by the State Government to ca be a distlict for the purpos.es of this Act, and includes one or more revenue distlicts so modified]. )e Iy Is it ".. .5[(iv)"Election" means an election filla seat or seats in a Panchayat and includes election of Sarpanch of Gram.Panchayat.. __ ",eccc ._' (v)' "Election Pr6ceedlngs"'meansth'e proceedings commencing IC " from the issue ofthe notice for election and ending Withthe declaration' of results of such election.] 1l (vi)"factory" shall have the same meaning as assigned to it in the Factories Act. 1948 (LXIII of 1948); (vii) "Gram Panchayat" means a Gram Panchayat established R s , • t under sub-section (1) of Section 10; 6[(viii)'Gram Sabha' means a body consisting ofpersons registered in the electorai rolls relattng to a revenue village or forest village' complised Within the area of the Gram Panchayat]. i COMMENTAHY ,- , Gram Sabha.-[lJ In the Constitution (SeventyThird Amendment)Act, 1992 [20-4-1993J, the term 'Gram Sabha' has been defined thus- "Gram Sabha" means a body consisting ofpersons registered in the electoral rolls relating to a village comprised within the area of Panchayat at the village level." . ~12J:9au_s~(yi,iiLqfsgcii0'l2definessimilarly'by'sayingthat it is a body consisting of persons registered in the electoral rolls relating to a revenue i'" I Ins.byMP43of1997(5-12-1997). 2 Ins.byMPAct18of2007125-5-20071. 3 Ins.byMPAct18of2007125-5-20071. 4 Subs.byMPAct28of199814-9-1998J. 5 CIs.(tv)and(v) subs.byM.P.26of1994(30.5.94J. 6 Subs.byM.P.Act5 of199915-4-19991. t- Ip.,I•.';g...:1~ • PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 8.2 (PAllS village. or a forest village comprised within the area of the Gram Pan'chayat. [3]The definition clearly means that Gram Sabha shall be the lowest unit comprising of one or more 'gaons'. There may be'one or more 'gaons' in a Gram which shall be specifiedby the Governor by public notification. There willbe one Gram Sabha for each Gram, specifiedby the Governor. (ix) "Janpad Panchayat" means a Janpad Panchayat established under sub-section (2)of Section 10; (x)"LocalAuthority" shall have the same meaning as assigned to it in the Madhya Pradesh General Clauses Act, 1957 (No.3 of 1958); (xi)"Member"means a panch of a Gram Panchayat, a member of a Janpad Panchayat or a member of a Zila Panchayat, as the case may be; (xii)"offensive matters" include animal carcasses, dung. dirt, sewage or putrid substances or filth of any kind; (xiii)"Officebearer" means a panch, sarpanch or upsarpanch of a gram panchayat, a member, President or vice-president of a Janpad Panchayat or a member, or president or vice-president of Zila Panchayat, as the case may be; (xiv)"Other Backward Classes" mean category of persons belong- ing to backward classes as notified by the State Government; (xv) "Owner" when used wtth reference to any land or building , includes the person recetving the rent ofthe land or building or of any part of the land or building, whether on his own account or as agent or trustee for any person or society or as a receiver; I I I (xvi)"Panch" means a panch of a Gram Panchayat; (xvii)"Panchayat" means a Gram Panchayat, a Janpad' Panchayat or a Zila Panchayat, as the case may be; (xviii)"Panchayat Area" means the terrltortal area of a Panchayat establishment under thts Act; (xix)"Population" means the'population as ascertillned at the last preceding census of whtch the relevant figures have been publtshed; (xx) "Prestdent" and "Vice-Prestdent" means the President and Vtce-President respectively of a l[Gram Ntrman Samiti or Gram Vtkas Samitl or Janpad Panchayatl or Zila Panchayat, as the case may be; . (xxi)"Prescribed Authority" tn any provision ofthis Act means such officer or authority as the State Government may, by notification. direct to discharge the functions of a prescribed authority under that provision; ',. I I COMMENTARY Prescribed Authority,- ThemembersofJanpad Panchayat submitted a No ConfidenceMotion to the Add!.Collectorwho convenedthe meeting ofJanpad Panchayat and petitioner challengedthe legality ofthe order to 1 Subs. forthe wordsMJanpad Panchayae by M.P. Act 16 of 2004; w.e,f. 1-1.2005 .. .. , 8.2 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHl., 1993 (PA) 19 convenemeeting. Held that the Collector.aloneought to have exercised the . power under S. 28(2) of the Adhiniyam and not the Add!. Collector. The initiative taken by the Add!.Colle~toris, therefore liable to be condemned as the one without authority of law and in violation of the mandatory provisionofS. 28(2) ofthe Adhiniyam.Ayodhya v. State ofC. G.and Shankar Prasad v. State ofC,G., 2006(2) CGLJ 247 (xxii}"Public Market" or "Public Mela" means a market or mela, as the case may be, notified under the proviso to Section 58; (xxiii) "Public Place" means any place, building 'or structure not being private property, which Is 'Open to use of the public, whether such place, building or structure is vested in a Panchayat or not; (xxiv)"Public Street" means any street, footway, road, square, alley or passage, used by the public whether permanently or temporarily; ll(xxiv-a) "Resolution" means subject to the provisions of this Act, the resolution passed in the meeting of-the Panchayats and has been mentioned in proceeding register; (xxiv-b) "Secretary" means Secretary or i\cssistant Secretary of the Gram Panchayat, Gram Sabha or any Committee of Gram Panchayal or Gram Sabha, as the case may be; (xxiv-c) "Social audit" means opinion of the members of Gram Sabha relating to expenditure In respeCi of qualitY of comrU11nii:ywork and beneficiary oriented work executed iil the Gram Sabha area;'] (xxv)"Sarpanch" and "Up-Sarpanch" means the Sarpanch and upSarpanch respectively of a Gram Panchayat, as the case may be; 2[(xxv_a)"Scheduled Areas" means the Scheduled Areas refelTed to In clause (1) of Article 244 of the Constitution ofIndia;] 3[(xxv_b)'Special Economic Zone' shall have the. same meaning as assigned to It in Clause (za)of Section 2 ofthe Special Economic Zones Act, 2005 (28 of 2005)]; , .' (xxvi) "Standing Committee" means a Standing Committee of a Panchayat, a'Janpad Panchayat or aZilaPanchayat constituted under the provisions of this Act, as the 'case may be; (xxviI)"State Election Commission" means State Election Commis- sion constituted by the Government under Article 243 k (1) of the Constitution; (xxviii):Tax" Includes a tax, cess, rateofree leviable under this Act; (xxix)"Village"means a village specified by the Governor by public .llotif!~;ipo.I:rto .be a Yillagefor the.purposes aUhls,Act,and includes.a group of villages so specified; . \. ExplanatioTL-Term village includes revenue village and forest village, 1 Clauses (xxiv-a to c) in~ertedvide M.P. Act No. 2'6 of2012 [23-"5-2012). 2 Ins. by MP 430f 1997 [5.12-1997). 3 Ins. by MP 18 of 2007 (25-5-2007). • • PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 8.3 (PA)20 (xxx) "Zila Panchayat" means a Zila Panchayat established uhder sub"section (3) of Section 10. , 3. Notification of village.-The Governor shall by public notification specify a village or group of villages to be a village for the purpose of this Act. COMMENTARY 1. Exclusion of certain village from a certain erstwhile Gram Panchayat.-See comments under S.125and M.P.Panchayat (Alteration of limits, Disestablishment or Change of Headquarters) Rules (1994), R.3. La/singh v. State of M.P., 2005 (1) MPLJ 348=2005 (2) MPHT 346=AIR 2005 NOC 250 (MP). 2. Constitution of Gram Panchayat with head quarter at a par- ticular place by State Government cannot be interfered with.- A preliminary notification creating a unit of local Government described as "village" grouping certain villages, when published, the decision of the Authorities in constituting a Gram Panchayat by a particular name was perfectly in accordance with law. The High Court will not sit overjudgment on such decision as a court of appeal and would not substitute its own views. The notifications having been issued in exercise of powers which were legislative in character, were in accordanc.e with law and the decision calle.d for no interference. AlR 1990 SC 261 Fall., 1993l\1PLJ 767=1991 JW715 ReI.Rajdhar Singh v. State of M.P., 1995 MPLJ 152. 3.Village,-A 'village' has a different meaning under this Act than what we understand in the natural course. The definition given in clause (xxix) of Section 2 read with the provisions of this ~('ctionmakes it clear that a 'village' under the Act may be one or group of more than one villages as specifiedby the Governor. 4. List of voters of a village.-For every village specified urider~ Section 3 there shall be a list of voters which shall be prepared In accordance with the provisions of this Act and rules made thereunder. 5. Registration of voters of a village.-Every person who is I, t qualified to be registered In the Assembly roll relatable to a village or whose name is entered therein and is ordinarily resident within the village shall be entitled to be registered in the list of voters of that village: I J ''I ~Provlded that- (a) no person shall be entitled to be registered In the list of voters ~formore than one village; (b) no person shall be entitled to lJe.registercd in the list of voters if he is' registered in the electoral roll relating to any other local authority. I \ I Expklll{/ I ion.- , ; \ "'. . • 8.5 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)21 (1) The expression "ordinarily resident" shall have the meaning assigned to it in Section 20 of the Representation of ihe People Act, 1950 (No.43 of 1950YsubJect to the modification that reference. to "Constituency" therein will be construed as a reference to "village". (2) A person shall be disqualified for registration in the list of voters of a village if he is disqualified for registration In the Assembly roll. COMMENTARY 1. Registration in the voter's list.-ll] Where a person is registered in the electoral roll of any other local authority, he is not entitled to-be registered in the list of voter of a village. Uttamchand v. State Election Commissioner of M.P., 2005 (1) MPLJ 168. [2] A bare perusal of 8ection 5 nowhere provides for its vice- versa position. It means that by virtue of the provision of 8.5, a person is not prevented from getting his name entered in the electoral roll of Municipal Council, ifhis name is already registered in the electoral roll ofthe village. It is not contemplated under law that a person entered in the name ofvoter list ofvillage, iR disqualified from contesting the election ofcouncillor in due manner. Rajaram Ahirwar v State of M.P., 2008 (3) MPLJ 185. 2. Genera!.-!l] Section 4 makes provision for preparing a list ofvoters foreach andceveryvillage to-be-preparedin accordancewith-the-rules maG"- under this Act. This section makes provision forpersons whose name shall be registered in the list ofvoters ofa village: The followingpersons shall be entitled to get themselves registered in the aforesaid list:- (i) Every person who is qualified to be registered in the list of voters prepared for the legislative assembly relating to that village; (ii) Every person whose name is already entered in the Assembly roll relatable to that village; Both the above mentioned kind of persons shall be entitled to be so registered, provided they are ordinarily resident of that village. It simplymeans that whatever may be reasons for their inclusion in the list of Assembly poll, this additional qualification should also be there that they are ordinarily resident of that village. Not only this there are other conditions too laid down in the proviso attached to this section as under:- (a) No person shall be entitled to be registered in the roll of more than one village; and _ (b) If a person is registered in any other local authority, meaning any mvnifipality or nagar p;illch.ai"t_etc., then Jieshail not be registered in tbe -'roIr'ohotets preparedfor th'at'ViIlage: p '. '.- t. • ,'- '. [2] It is also specifically provided in the Explanation attached to the section that a person who is'disqualified to be iiilcuded in the list of voters of the Assembly relating to that village, he shall also not be registered in the list of voters prepared for that village under this Act. rII • • • I" I, S.5-A PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)22 1.i II'il I[ 5-A. Constitution "and incorporation of Gram Sabha.-There shall be a Gram Sabha for every village. The Gram Sabha shall be a body corrorate by the name speCified therefor having perpetual succession and a common seal and shall by the said name sue and be sued and shall subject to the provisions" of this Act and the rules made thereunder have power to acquire, hold and dispose of any property movable or immovable, to enter into contract and to do all other things necessary for the purpose of this Act. I,Ii ,i \ ,I I! I COMMENTARY 1. Legislative changes.-It is a new section inserted by M.P.Act 3 of 2001, w.e.f. 26-1-2001. 2. Gram Sabha.-[l] This section declares that there shall be a Gram Sabha for each and every village and as per definition of'village' given in clause (xxix) of section 2, 'village' shall mean that which is so specified by I the Governor. [2]The section further states that each and every Gram Sabha shall be a body Corporate by the name specified therefor and shall have perpetual succession and all other characters of a body Corporate shall apply to it. Under the provisions of this Act and the rules made thereunder, it shall be competent to acquire, hold and dispose ofany property, movable or immov- able. It shall also be competent to enter into any contract and to do all things necessary for the purposes of discharging iJs functions and obligations mention under the Act and the Rules. 3. Constitution of Gram Sabha.- The provisions ofM.P.Panchayat Raj (Simshodhan) Adhiniyam (No.3 of2001) inserting section 5-A, providing for constitution of Gram Sabha is constitutionally valid. Jankidas Bairagi u. State of M.P., 2001 (2) MPLJ 477=2001 (2) MPHT 229(DB). I 2[6. Meeting of Gram Sabha.-3((I) The meetings of Gram Sabha shall be held at least In January, April. July and October, and besides this Gram Sabha may convene additional meeting. If required, and the Collector of the district shall nominate a Government Officer or employee for suitable arrangement of such meetings who shall ensure the circulation of the agenda and notice of the date, time and place of meeting to be served within time and shall also ensure the due conduction of the proceedings of the meeting.] I I I Ins. byM,P, Act 3 of 2001, w.e.f.26-1-2001. 2 Subs. by M.P. Act 3 of2001, w.e.f.26-1-2001. :. 3 Sub-sec. (l) s~bs. by M.P.Act 16 of 2004. w.e.f. 1-1,-2005. \ • 8.6 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., "993 (PA)23 I[(2)The quorum of every meeting of Gram Sabha shall not be less than one-tenth of the total number of members of the Gram Sabha or flve hundred members of the Gram Sabha, whIchever is less.] , I r I (3) The meeting of the Gram Sabha shall be presided over by Sarpanch or in the absence of Sarpanch by Up-Sarpanch. In the event of both Sarpanch and Up-Sarpanch being absent, the meeting of the Gram Sabha shall be presided over by a Panch to be elected for the purpose by the members present in the meeting. (4)If any dispute arises as to whether a person is entitled to attend a meeting of the Gram Sabha, the same shall be decided by the person presiding regard being had to the entry in the list ofvoters ofthe Gram Sabha area and his decision shall be flnal. r • (5) Any dispute arising between Gram Sabha or any matter conceming more than one Gram Sabha comprised within the area of Gram Panchayat and all mqUers contalned in sub-section (2) of Section 7 shall be brought before a joint meeting of all Gram Sabhas of that Gram Panchayat. (6) The decision taken at the joint meeting under sub-section (5) shall be deemed to be the decision taken by each of the Gram Sabha.] COMMENTARY 1.Legislative changes.-lt is a new section which has replaced the old section'6 vide M.P.Act 3 of2001, w.e-.f.26-1-2001. 2. Constitutional validity of the amm;ldment- Sub.section (2). Quorum for holding a meeting of Gram Panchayat.Second Part of S.6(2) introduced by M.P.Panchayat Raj (Sanshodhan) Ahiniyam, 3 of2001.The provision is a reservation into reservation, it frustrates the purpose of the Act and is ultrayires the Constitution.-[l] Pronouncing a provision to be ultra vires.- Wehave referred to the aforesaid pronouncements to apprise ourselves that a provision is not declared ultra vires on abstract grounds or in vacuum. The real test has to be applied. To elaborate; if reading of the provision appears to be ex facie and manifestly, unreasonable for arbitrary indubitably, the same can be declared as ultra vires. If the provision has an object to achieve but it actually does not so achieve, there can be no iota of doubt, it defeats the scheme of the Act and thereby can be regarded as ultra vires. Than Singh v. State ofM.P., AIR 2005 MP 170=2005 (2) MPW 353=2005 (2) MPHT 127=2005 (2) JLJ 178 (F.R). Does not apply to the new sub.sec. (2). [2]Classification of reservation.-Reservation for women is permissible and classification is permissible and classification is primarily dependent on the Legislature but the classificatiop has to rest and founded on . . , --1 --Sub~sec:(2) as "amended -byM.P: Act 230f200f:a:nd subs. by 'M.P. Act 20~of-2005, w.e.f. 30*8-2005 was as under:"(2)Not less than one-fIfth or one thousand. whichever Is less of the total number . of members of the Gram Sabha shall form a quorum for a meeting of Gram Sabha. out of which not less than one third shall be wome~ members and members of Scheduled Castes and Scheduled Tribes shall be represented in proportion to their population in the Gram Sabha. Quorum shall be necessary for every meeting of the Gram Sabha.~ (PA)24 PANCHAYAT RAJ AVAM GRAM SWARAJ'ADHl., 1993 8.6 reasonable criteria. It cannot be carried to such & point which would subvert and submerge the precious guarantee of equality clause. The case at hand , has a different scenario to fresco. Chapter IX ofthe Constitution has made provisions for Panchayat. It has made provision for reservation of seats for Scheduled Castes, Scheduled Trjbes and women. As far as this reservation is concerned, it is the mandate ofthe Constitution and that has to be followed by the State Legislature. While providing the quorum for holding of a meeting of Gram Sabha the Legislature has couched it in a different way. On a scanning of the anatomy of the provision two limbs emerge. One lays a requisite postulate as regard the number and the other a prescription of the percentage of members for a quorum. Than Singh v. State of M.P., AIR 2005 MP170=2005 (2) MPLJ 353=2005 (2) MPHT 127=2005 (2) JLJ 178 (F.B.). [3) Protective discrimination.-There is subtle and fine distinction between protective discrimination and a protective discrimination that destroys a larger public interest or social interest and also defeats the fundamental requirement ofthe body polity. The proponement that the said I provision is in consonance with Articles 15(3) and 15(4), in our considered opinion, is neither correct nor sound inasmuch as the concept ofreservation to that extent would not be within the ambit and sweep of protective or l, i! affirmative discrimination. We are disposed to think so as there is reservation in respect of seats and a further reservation would tantamount to reservation within reservation. We may hasten to clarify that on the first flush the provision may not-appear to be reservation because it has been grafted and woven into the concept of quorum but on an deeper probe and keener scrutiny it becomes patent that there is reservation in the quorum inasmuch as without the presence of the reserv.ed categories of persons the 'Gram Sabha' becomes non- functional. It is so, as no alternative has been provided under the Act. [4J Purpose of quorum.-It is to be borne in mind, the purpose of the quorum is to ensure that there is proper transaction of business and the decision taken epitomises the representative character. In the instant provision the representative char"'cterofthe~<1ecision is likely to be caged. It is not out ofplace to state that concept ofquorum is baSIcally it safeguard~ against the apprehension that a minuscule persons or members may boast ofhaving taken a decision on behalf ofthe body even through the large body ofmembers are unaware or not parties to the decision. The quintessentiality ofquorum is on the number and not on the Constitution ofthe number which in the ultimate eventuality destroys the rationality, the reasonableness and ushers in arbitrariness. It has to be appreciated that all members who are members of the Gram Sabha are such persons wit4'out any distinction or colour attached to them and they participate in tile meeting of the body without any kind ofdistinction. There can be no differentiation in individual characteristic of a member and a member of the Scheduled Caste and Scheduled Tribe for the purpose of a quorum in a meeting since quorum is only a guarantee of persons of minimum number of persons from amongst the effective body of which has the same homogenous character qua such members. A provision like the present one unmistakably makes a distinction between two similar members. It is worth noting after an election is held in • 8.6 PANCHAYAT RAI AVAM GRAM SWARAJ ADHI., 1993 (PA)25 respect of the Panchayat and'all the elected members constitute a homogenous group and no dbt iiH:'tion is farmed or "introduced which is dependent upon the constituQncy or source of membership. They are all treated as equals but the present provision while laying down that the quorum would have one third women, and such proportionate members of the Scheduled Castes, Scheduled Tribes to eonstitute mandatorily the one-fifth of members treats equals as unequals violating the mandate of Article 14 ofthe Constitution. In fact, such members become more important members than other members without a rational basis and have the effect potentially to take the majority to ransom as a consequence of whieh the majority deeision paves the path ofmarginalization and in a way, extinction. The representative character of the decision becomes an anathema to its basic concept. Judged from these spectrums there can be no iota of doubt, the second limb of the provision is not rested on reasonableness and in fact, smacks of arbitrariness in its conceptual eventuality. "Quorum" denotes the minimum number of members of anybody of persons whose presence is necessary in order to enable that body to transact its business validity so that its acts may be lawful. The fixation of quorum for the meetings of a committee does not preclude all the members of the Committee from attending the meetings. By the quorum, a minimum number of members of the committee must be present in order that its proceedings may be lawful but that does not mean that more than the minimum are denied an opportunity to participate in the deliberations and the decisions ofthe committee. Whenever, a committee is scheduled to meet, due notice ofthe meeting has to go to all the members ofthe committee and it is left to each individual member whether or not to attend a particular meeting. Every member has thus the choice and the opportunity to attencI every meeting of the committee. If any member considers the determined in a particular meeting as of such importance that he must make his voice heard and cast his vote, it is open to him and indeed he is entitled to attend the meeting and make his presenee felt. Thus the basic and fundamental principle inhered in the term 'quorum' is presence of minimum number of members to transact business with the avowed purpose to make it lawful.-Panjab University, Chandigarh v. Vijay Singh Lamba etc., AIR 1976 se 1441 Foil. Than Singh v. State of M.P., AIR 2005 MP 170=2005 (2) MPLJ 353 =2005 (2) MPHT 127=2005 (2) JLJ 178 (F.B.). [5JEffect of the provision of second l.imb of the termquorum.-It is well settled concept that democracy is nothing but the rule of majority, though it may assume eertain shades of adjustability and suitability to match. certain circumstances; If the second linlb of definition of quorum is aUowe(n6~s1;\iia 'tI1erepresentail;"e' cli.a~a:cier'Ofth-e"deci;ionof the Gram Sabha is likely to be destroyed and the majority would be in the hands ofan , . absolute 'ininuscule minonty and would be controUed by it. The possibility ofmicrocosm totally ruling the macrocosm cannot be brushed aside. In fact, the said facet is inherent in providing the constituent in a quorum. Than Singh v. State of M.P., AIR 2005 MP 170=2005 (2) MPLJ 353=2005 (2) MPHT 127=2005 (2) JLJ 178 (F.B.). . .., ••• 8.6 (PA)26 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 [6] Why provision is ultra vires.-Both limbs of the provision are distinct and separate and after striking out what is invalid what remains is in itself a complete provision independent of the rest and can be upheld notwithstanding the rest is constitutionally invalid. We are also of the opinion, the concept of quorum is the basic scheme when one-fifth of the members of Gram Sabha are taken into consideration and the constituents do not really form a part of an inseparable singular scheme. They are different in substance and ifthe invalid provision is expunged the other part of the provision is workable, enforceable and have its own existence in a legitimate manner. Our view gets reinforced by the decision rendered in the case of R.M.D. Chamarbaugwalla and another v. Union of India and another, AIR 1957 se 628. The second limb of section 6 (2).ofthe Act intending that 'out of which not less than one third shall be women members and members of Scheduled Castes and Scheduled Tribes 'shall be represented in proportion to their population in the 'Gram Sabha' is unconstitutional on the ground which we proceed to state in seriatim. (a) There is no constitutional mandate under Articles 243, 243-A, 243-B, 243-D, 243-G and 243-H that provide constituent of quorum pertaining to the mandatory presence of specific women members and members of the Scheduled Castes and Scheduled Tribes. (b) The argument that the constitution ofquorum as has been envisaged by the State Legislature is inferentially permissible from the aforesaid ! . -~Articles is.faliaciolis. lind".does not withstand-dose-scrutiny.-;. . - -,- ---.~ (c) The second limb of the provision is nof saved by the conception of affirmative a-y"proteCtive 'discrimination as conceptually inhered under- Articles 15 (3) and 15 (4) ofthe Constitution ofIndia. (d) The classification that has been made in the quorum does not stand the test ofequality clause as enshrined under Article 14 ofthe Constitution. Ce)The provision also is hit by the principle ofreasonability and smacks of arbitrariness. CDIt does not subserve the purpose ofthe Act but in a way, subverts the same and hence, it is not in cons'ouanee with the scheme ana. spirit of the" Act. (g) The purpose ofquorum always lays emphasis of a particular numu,'r of members for transacting business but in the case at hand when the- . constituents have become the paramount and governing factors it basically runs counter to the idea of quorum, as a cons:equence of which the representative character of the decision melts into oblivion. (h) The provision on.a deeper penetr\itioIland pregnant probing allows .\, I ,., • > ~~q,~t'Jlf~c},ll~~m!?~«r~f~efe~~~_de~Jk~n;?f~J:;}~~r.ity:i,~~.w~~.a~d thereby ushers Ill'ine neslgIfiliat th~crocosm fia~f1fe effect potenbahty to dominate over the macrocosm which is an anathema or betenoire to the basic feature of democracy which is a part ofthe philosophy ofthe Constitution, a compassionate one. , (i) the provision is not saved even if the doctrine of social balancing is applied. Than Singh v. State of M.P., AIR 2005 MP 170=2005 (2) MPLJ i I ( I 8.6 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHl., 1993 (PA)27 353=2005 (2) MPHT 127=2005 (2) JLJ 178 (F.B.). [7]Provision declared ultra vires.-Ex consequenti, we deClare that the second part of sub-section (2) of section 6 of the Act which postulates that 'out of which not less than one third shall be women members and members ofScheduled Castes and Scheduled Tribes shall be represented in proportion to their population in the Gram Sabha' is ultra vires the Constitution. Than Singh v. State orM.p., AIR 2005 MP 170=2005 (2) MPLJ 353=2005 (2) MPHT 127=2005 (2) JLJ 178 (F.B.). [8JResult.- The result of the above declaration is that the quorum for holding a meeting of the Gram Sabha now shall be held with a quorum of one-fifth of the total number of members of the Gram Sabha, but see new sub-sec. (2). 3. Meeting of Gram Sabha.-[lJ This section makes provision for holding of meetings of Gram Sabha. [2JIt is made imperative that at least onemeeting ofGram Sabha shall be beld every month which shall be calledby the Secretary ofthe Gram Sabha. [3]Although meeting of a Gram Sabha is to be called by the Secretary, still date, time and place for the first meeting ofa Gram Sabha shall be fixed by the Sarpanch. It also means that there must exist a validly constituted Gram Panchayat consisting ofa Sarpanch. It must be remebered that there will be no separate Sarpanch of a Gram Sabha. The Sarpanch of a Gram Panchayat shall be deemed to be the Sarpanch ofthat Gram Sabha. [3]The Sarpanch shall fix the date, time and place for holding the first meeting of a Gram Sabha while subsequent meetings shall be held as decided by the Gram Sabha. [4JQuoram.-Section 5 has already made provision for preparing the list of voters of a Gram Sabha. Accordingly in every meeting held, there should be a quoram and that is fixed to be one fifth. The provisiori says that there should bean attendance ofat least 1I5thmembers. *[This1I5thshould contain at least 1/3rd women, meaning thereby that one-third of this number should consist of women members. Not only this, representation of members ofthe Scheduled Castes and Scheduled Tribes shall be in proportion to their population. It may be clearly understood that representation here should mean, representation in the quoram, since every person ofany caste and creed, if registered, shall be entitled to attend the meeting of a Gram Sabha.] It is also specifically stated in sub-section (2) that quoram shall be necessary for each and every meeting of a Gram Sabha. *According to the decision ofthe Full Benc,hofthe High Court given in the case of Than Singh, the portion above given in 2 '"isnow not necessary since certain portion of sub-section (2) is declared to be ultra vires. [5] Presiding of meeting.-Every meeting of a Gram Sabha shall be presided over by the Sa'rpllilcn and iii his-absence by the Up: Saipanch. In a case where both of them are absent then it shall be presided over by a person elected for the purpose by the members present in the meeting. [6JRight to attend meeting.-As already observed, every person who is registered in the list of voters of a Gram Sabha under section 5, shall be a member of a Gram Sabha and he shall be entitled to attend the meeting of Gram Sabha. But. in a case where any dispute arises as to whether a \ .., .., .-, -- - --------- -- -' PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 S. G.A (PA)28 person is entitled to attend the meeting of Gram Sabha, the same shall be decided by th~ person presiding with reference to the list of voters. His decision in the matter shall be final. [7] Sub.sections (5) and (6) are ambiguous and contradictory.The sub-section (5)is not happily worded. It is,ambiguous and contradictory. It speaks ofmore than one Gram Sabhacomprised within the area ofGram Panchayat which is not possible. Section 5-Ain clear terms says that there shall be a Gram Sabha for each village and village here cannot mean 'gaon'. Looking to provisions of other sections too, there cannot be more than one Gram Sabha in a Panchayat area. If it is not so interpreted, different provisions for functioning and powers of Gram Sabha and the Gram Panchayat shall become impossible. Therefore, sub-sections (5) and (6) should be held to be ambiguous, contradictory and in the result, ultra vires. \ \, [8]Joint meeting of Gram Sabhas.-Since there cannot be more than one Gram Sabha in a'Panchayat area, the question ofholding joint meeting does not arise at all. 4. Scheduled Area Gram Sabha-Applicability.- Special provisions for Panchayats in the Scheduled Area are made in Chapter IV-A of the Adhiniyam. This Chapter overrides the provisions of Chapter 2 which includes S.6(2). Therefore, S.6(2) does not apply to Scheduled Area Gram Sabhas. Rajkumar v. State of M.P., 2003 (4) MPLJ 354=2003 (3) MPHT • I 108 (DB). \ " 5. Rules':-The State 'Gov'ernment has made the following rules, in exercise ofthe powers conferred by this section. These Rules shall be found under Rules given separately. "Procedure of Meetings Rules, 1994" \ I[G.A. Special Meeting of Gram Sabha.-If the Sarpanch, or more than ten per cent. of the members or fifty members of the Gram Sabha whichever is less, give requisition in writing for a special meeting of the Gram Sabha, the Secretary shall call such a meeting within seven days of the receipt of such requisition. COMMENTARY I \ 1. Legislative changes.-It is a new section inserted by M.P,30f2001. ' Special Meeting,-ll] The section makes provision for calling special I meeting ofa.Gram Sabha. Special meeting ofthe Gram Sabha shall be called as under:- ,(I) Where the Saipanch, or (ii) more than 'I 0 per cent of the members of Gram Sabha or ) fifty members of Gram Sabha, whichever is less. give in writing a requisition for calling a special meeting ofGram Sabha, to the Secretary, the Secretary shall call such a meeting ofGram Sabhawithin seven days ofthe receipt ofsuch requisition,. ' \, \ I , 1 Ss.6-A to 6-C ins. by M.P. Act 3 of 2001. w.e.f.26-1-2001. \ I ' .., S.6-C PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)29 , Panchayat6-B. Secretaryshall alsoofbeGramthe Sabha.Secretary-TheofSecretarythe GramofSabha.the GramThe Secretary shall be under the control of the Gram Sabha and perform such duties as assigned to him by the Gram Sabha. • COMMENTARY 1. Legislative changes.- 2. The Secretary ofthe Gram Panchayat shall also act as a secretary of the Gram Sabha and the secretary shall work under the control ofthe Gram Sabha and he shall perform the duties which are assigned to him by the GramSabha. 6-C. Decision by Gram Sabha.-(l) All matters brought before any meeting of Gram Sabha shall be decided. as far as possible, unanimously falling which by general consensus of the members present: Provided that where there is difference ofopinion on any issue such matter shall be brought before the next meeting, If a decision Is not taken unanimously or by general consensus in successive two deferred meetings then such matter shall be decided by majority of members present thereat by secret voting. in the case of equality of votes, the person presiding over the meeting shall have a second or casting vote, .cc.:.' 42)lFa:il)'displite'arises -as to wheth"ra person is entitled to vote, the same shall be decided by the person presiding regard being had to ... the entry in the list of voters of the Gram Sabha area and his decision shali be final.] COMMENTARY Gram Sabha decision.-[l] In order to promote better understanding, develop love and co-operation between the residents of a village, it is provided in this section that all matters'which are br6iightbef6rea Gram Sabha shall be decided unanimously, failing which by general consensus. The question arises as to what this term 'general consensus' mean. It simply .meansa minor or negligible opposition which doesnotlnclude substantial opposition, Where it appears that there is a difference ofopinion the matter should be left over undecided, to be decided in the next meeting. [2]It is also provided in the proviso to'sub-section (1)that in case of a matter which cannot be decideq. unanimously or by general consensus even inthe two adjourned meetings then, such a r4atter shall be put to vote and l1ecided.\iY.JIIajQrity,,v.qting.secretly:_Ifthe,yotes are equal, .the presiding person shall have a secondcasting vote, meaning thereby that the president will vote firstly ,as any other nWm.berand where the result is found to be equal number of votes then, the president shall have the second vote. It further means that in such a situation, the matter shall be decided as per the casting vote ofthe president. I \ I I [3]Although the ultimate procedure providedis ofsecret voting, but that stage is tried to be avoided as far as possible.Every scopeforcreating better PANCHAYAT, RAJ AVAM GRAM SWARAJ ADHI., 1993 8.7 (PA)30 understanding and remove any difference of opinion has been created. The Legislature has advisedvillage peopleto keep patience and try to understand the point ofviewofthe other side.Theprovisionaims at development ofthe village without hurting the selfrespect ofanother. I[7. Powers and functions and Annual Meeting of Gram Sabha. -(1) Subject to the rules, which ihe State Govemment may make in this hehalf. and subject to the general or special orders. as may be issued by the State Government from time to time. the Gram Sabha shall have the followingpowers and functions. namely:- (a)to lay down the principles foridentification ofschemes and their priority for economic development of the village; (b) to approve all plans including Annual Plans. programmes and projects for social and economic development before such plans, programmes and projects are taken up for implementation by the Gram Panchayat; (c) to consider the Annual Budget of the Gram Panchayat, and make recommendations thereon: (d) to consider the report of apdit and accounts of the Gram Panchayat; - .- (el to ascertain and certify the proper utilization by the Gram Panchayat of the funds for plans. programmes and projects referred to in clause (b); . (I)to identify and select persons as beneficiaries under the poverty alleviation and other programmes; (g) to ensure proper utilization and disbursement of funds are assets to the beneficiaries; (h) to mobilize people for community welfare programmes; (i) to ensure active participation of people in Implementation. maintenance and equitable distribution of benefits of development schemes In the village; U)to promote general awareness amongst the people; and 21U-i) to exercise control over Instltutlqns and functionaries In social sectors Iransfen'ed 10 or appointed by Oram Panchayat through that Panchayat; U-ii)to manage natural resources Includtng land. water, forests within the area of the village in accordance with provisions of the Constitution and other relevant laws for the time being In force; U-Iii)to advise the Gram Panchayat in the regulation and use of minor water bodies; _U-Iv).to control local plans, resources and expenditure for such plans;) I Subs. by MP 43 of 1997 (5-12-19971. 2 Ins. by M.P,Act 5 of 1999 [5-4.1999]. ..•~ 8.7 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PAl3I IIlk) sanitation, conservancy and prevention and .abatement of ..nuisance; (I)construction repair and maintenance of public wells, ponds and tanks and supply of water for domestic use; (m)construction and maintenance of sources of water for bathing and washing and supply of water for domestic animal; (n) construction and maintenance of village roads. culverts, bridges, bunds and other works and building of public utility; (0) construction, maintenance and clearing of public streets, latrines, drains, tanks, wells and other public places; (p) filling in of disused wells, unsanitary ponds, Pools dilche~ and pits and conversion of step wells into sanitary wells; (q)lighting of village streets and other public places; (r) removing of obstructions and projections in public streets and places and sites not being private property or which are open to use of public, whether such sites are vested in the Panchayat or belongs to the State Government; (s)regulating and control over entertainment shows, shops, eating houses and vendors of drinks, sweet meats, fruits, milk and of other similar articles; (t) regulating the construction of house, latrines, urinals, drains and watercl"se(s; .. ..c : ._ (u) management of publicland a.~d mana.g;;ment, extension and development of village site;. (v)(i)regulating places for disposai of dead bodies, carcasses and other offensive matters; (ii)disposal of unclaimed corpses and carcasses; (w)earmarking places for dumping refuse; (x)regulation of sale and preservation of meat; (y)maintenance of Gram Sabha property; (z) establishment and management of cattle ponds and main- tenance of records relatillg to cattle; """"\ (aa) maintenance of ancient and historical monuments other than I I I, , those declared by or under law made. by.Parliament to be of national importance, grazing lands and other lands ,<.,1ing in or under the control of the Gram Sabha; (bb) maintenance of records of births, deaths and marriages; (cc) rendering assistance in the census operation and in the SUrveYsconducted by.tbeSkte Government or Central Government or "atly'otherlocal auttiorltylaWfullycorrstituied;--'-";~. -. .. _. (dd) rendering assistance in prevention of contagious diseases; (ee)renilCriIlg assistance In Inoculation and vaccination and enfor- cement of other preventive measures for safely of human being and cattle prescribed by Government Department concerned; Cis. (kIlo hv) sllhs. for cl.(k) by M.P. Act:3 of 2001, w.e,f.26-1-2001. • • • PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI .• 1993 8.7 , (PA)32 (ff)rendering assistance to the disabled and destitutes; (gglpromotion ofyouth welfare. family welfare and sports; (hh) establishment of Raksha Samiti for:- (a) safety oflife and property; (b) prevention of fire and extinguishing fire and safety of property during outbreak of such fires; (ii)plantation and preservation ofVillage forest; Gj)removal of social evils like dowry; (kk) granting loans for the purposes of- (il providing medical assistance to indigent persons in serious and emergency cases; (ii) disposal of dead body of an indigent person or any member of his family; or (iii) any other purpose for the benefit of an indigent person as may be notified by the State Government from time to time subject to such terms and conditions as may be prescribed; (II)(i)carrying out the directions or orders given or issued by the State Government. the Collectoror any other Officer authorised by the State Government in this behalf with respect to the measures for amelioration of the condition ofthe Scheduled Castes and Scheduled Tribes and other backward classes and in particular in regard to the removal of untouchability; (ii) perform such functions as may be entrusted to it by Zilla Panchayat or Janpad Panchayat by general or special order; (iii) to exercise and perform such powers and functions as the State Government may confer on or entrust to under this Act or any other law for the time being in force in the State; (iv) with prior approval ofJ anpad Panchayat. may also perform other functions as it may desire to perform: . Provided that where any such function is entrusted to the Gram Sabha. it shall act as an agent of the State Government, Zilla Panchayat, as the case may be, and necessary funds and other assistance for the purpose shall be provided to It by the State Government' Zilla Panchayat or Janpad Panchayat, as the case may be; (mm) plan and manage basic amenities; (nn) select beneficiaries under various programmes; (00) implement, execute and supervise development schemes and construction work within the Cram Sabha area; (pp) control and monitor beneficiary oriented schemes and programmes; (IT) organise voluntary Ia.bour and contribution for community work and promote the concept ofcommunity ownership; (ss) to plan, own and manage minor water bodies upto a specified water area situated within its territorial jurisdiction; (tt) to lease out any minor water body upto a specified area for the purpose of fishing and other commercial purposes; - ... ," 8.7 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)33 (uu) to regulate the use of water of rivers, streams, minor water bodies for,Irrigation purposes;' (vv) to exercise control over institutions and functionaries in all social sectors transferred to or appointed by the Gram Sabha.j (2) The annual meeting of the Gram Sabha shall be held not less than three months prior to the commencement of the next financial year, and the Gram Panchayat shall place before such meeting;- ,f (a) the annual statement of accounts; (b)the report of administration of the preceding financial year; (c) the development and other programme of the works proposed for the next financial year; (d) the last audit note and replies, if any, thereto; and S T 1[(e)the Amllial Budget and Annual Plan for the next financial year of the Gram Panchayat], 2[(2_A)The Gram Panchayat shall place such matters before the S e I; e e ,r Gram Sabha which'the cranpad Panchayat. the Zila Panchayat, the Collector or any Officer authorised in this behalf may require to be placed before such meeting,j (3) The Gram Panchayat shall carry out the recommendations. if any. made by the Gram Sabhain regard to the matters before it under this section). d e .'.-- ., COMMENtARY a ; Powers and functions,-Sub-section (1) 'gives a list of powers and functions of a Gram Sabha. But all these powers and functions are subject tothe rules made bythe State Government onthese subjects and alsosubject to the general or special orders issued by the State Government from time -,, e s...., to time. Formerly there were only 15 clauses defining such powers and functions. With the passing ofAct 3 of2001, 37 more clauses to this effect I, n are added. Without caring for the education ofthe persons living there, so n ,! many functions and.powers are assigned to them by sub. section (1). One, fails to understand how far this will be successful. a :r. Annual Meeting,-[l] It is provided in sub-section (2) that the Gram Sabha shall hold its annual meeting not less than 3 m,*ths before the l- \ commencement of the next financial year. A financial year"commences--on 1st of April every year. According to this provision, annual generulmeeting of a Gram Sabha should be held before the 1st of January, i,e, by 31st of Decembc' 'ryyear. ' d [21 it is also provided that the Gram Panchayat shall place belore such ~'.;Y~m.!'.~~j!,Z~f"!Qe;(}!!!:.J!i:to,all!)!"t!l~.P';;l1er~:..me(lt.iQljep)ns"_b",,eg,tions ~ ,- (2)and (2-A). ' l- Y '"!I 13] As far as annua!. statement of accounts is ,concerned, since the meeting will be held before 3 months ofthe expiry of the current financial year, it will relate to the previous year and similar would be the case with J-- d ~ H '" e ~ ! I Subs, by M,P,Act 5 of 1999 [5-4-1999), 2 Ins, by M,P,Act 5 of 1999[5-4-19991, I I (PA)34 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 S.7-A , i I the report of administration. Recommen<:lations of Gram Sabha.-Looking to the provisions ofsubsection (3), it appears quite clear th~t Gram Sabha is a general body and the Gram Panchayat is an executive body. The executive has to perform its I duties as per directions given by the general body. ) AppeaL-Provision is made under section 7-H for preferring an appeal against the decision ofGram Sabha. This appeal shall be made to a Committee which would consist of(i) President ofJanpad Panchayat, a member ofJanpad Panchayat from the area and the Sub-Divisional Officer (Revenue). How this committee shall be constituted and how this appeal shall be preferred, shall be provided in the rules to be made by the State Government. 1[7_A. Standing Committee and Adhoc Committee of Gram Sabha. _2[( I) The Gram Panchayat shall, for discharging its functions and duties, constitute the followingstanding committees ofQram Sabha namely:- (i) Gram Nirman Samiti, and (il) Gram Vikas SamitL] . (2) In addition to the Standing Committees mentioned in sub- section (I) the Gram Sabha may constitute one or more such Adhoc Committees as it may deem necessary for the implementation of any time-bound work. The Committee shall comprtse of members who are stake-holders of work assigned to the committee. The committee shall cease to exist after submitting the completion report and evaluation of the work by the Gram Sabha. (3) The Committees which are already functioning within the area of jurisdiction of the Gram Sabha shall continue to function with the approval of the Gram Sabha. (4)The number of members, reservation of seats, term of office, procedure forresignation and removal,conduct orbusines~ eligibility for becoming a member. meeting, mode of filling of vachncies and procedure of standing Committees and adhoc committees 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. . 1. Cram Sabha Swasth Cram Tadarth Samiti (Cathan, Karbar Sanchalan Tatha Baithak) Niyam, 2010. 2. Gram Sabha (ConstitutiDnof Standing Committees,Procedure for Conduct of Bussiness and Allied Matters) Rules. 2012. 3[7_B. Composition and functions of standing committees.-ll) , The Gram Nlrman Samiti shall Aci as an agency bf Gram Panchayat " and shall execute all construclion works and other works entrusted by .the Gram Panchayat or Gram Sabha, uplo five~ . 1 Ins. by M.P. Act 3 of 2001. w.e,f.26-1-2001. ' ~'- ."., <-} '2 Sub-sec. OJ sUDS. by M,P. Acll6 of 2004. w.e.[ 1-1-2005 ,r,.../.,t..." / l' 3 S.7-6 subs. by,M.P. Act 16 of 2004, w.e.f. 1-1-2005 0 L--, , • • .. S.7-G PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 CPA)35 •,, 1[(2) Sarpanch ofGram Panchayat shall be the ex- officioPresident of the Gram Nir'Van Samiti and Gram Vikas SamitL) (3) 2IXXX] (4)The composition and functions of Gram Vikas Samiti shall be such as may be prescribed. (5)The members of the Gram Nirman Samiti shall be included in the Gram Vikas Samiti in such manner as may be prescribed.] 3[(6)All disputes relating to constitution and election of Standing Committees shall be dealt with the provisions of Section 122 and the rules made thereunder]. 7-C.4[XXX] 7-D. Powers, functions and duties of Committees,-The powers, functions and duties of the committee shall be such as may be entrusted to it by the Gram Sabha from time to time, Every committee shall be responsible and accountable to the Grain Sabha and shall work under its control and supervision. ". 7-E. Removll;1of member.-The Gram Sabha shall have power to II C, remove any member of the Committee at any time for the reasons to V be recorded in writing. I. 5[ 7-F. Powers and duties .ofGrapt.N1rmanSamitiandGramVikas SamitL~ThedrainNjrman Samiti and Gram Vikas Samiti shall jointly prepare a plan for overall development ofvlllage and submit it for the approval of the Gram Sabha.] 617-G. Secretary of standing Commlttees.-The Secretary of Gram Panchayat shall also be the ex-officioSecretary of the Gram Nirman Samiti and Gram Vikas SamitLj 1 Sub-sec. (2) subs. by M.P. Act 16 of 2004, then __o:g<,!:it:l_by.M.~..AcL20 vL2005, w.e.f. 30-8-2005.--- ." 2 Sub-sec. (3) subs. by M,P. Act 16 of 2004, then omitted by M.P. Act 20 Of 2005, w.eJ. 30-8-2005. The omitted sub-section was as under :'- ~(3)The term of office of the-president shall be two and half years and after the expiration of the term, -election shall be again conducted by the Gram Sabha and the previous president. ifhe is not disqualified under the provisions of Ute Act, shall be qualified fOFre~electlon." 3 Ins. by M.P. Act 18 of 2007 (25-5-20071. '. 4 S.7-C omitted by M.P. Act 16 of 2004, w.e.£. l-i'-2005 . .5 Subs. by M.P. Act 16 of 2004. w.e.f. 1-1-2005. .' 6 Subs. by M.P. Act 16 of 2004. then again subs.. h\' I\1.P. Acl 20 of 2005, w.e.£. .•..::;~O~?r2Q05JQr_the.following,: .~ ,::.••...". ~~,,-. ~ ;,.. .'. -' ..... ~... ,.. _. > "7-G. Secretary of standing commlttee.-(l) The Secretary of Gram Pan{"!layat shall be the Secretary of Gram Nirman Samiti. .(2) The Gram Vikas Samiti'shall eled from amongst the members of the Gram Sabha. a Secretarv by two-~~.\i;:dmajority of members of the Gram Sabha: Provided that a person shall not hold charge of a Secretaiy. if such pel'son happens to be a relative of any member oLthe"Committee. I , Explanation:-For the purpose of this sub-section. the expression "relative" shall mean father, mother. brother. sIster, husband. wife. soo, daughter, father-in- law, mo~her-in-Iaw. brother-~o-Iaw, sister-in-law. son-io-Iaw and daughter-in-law." , i, (PA)36 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 S.7-GA 1[7-GA. Preparing o( long term developmen,t plan of Gram Sabha.-(l) The Gram Sabha shall evaluate next ten years approximate fund to be received, and make a ten year's long term plan for vl1lage development. with the help of experts and approve the same. (2) The plan under sub-section (1) shall be prepared keeping in view the' land use plan and requirement of basic amenities of Gram Sabha, on priority basis of long term plan through a yearly plan based on the financial resources to be received per year to the Gram Kosh of a Gram Sabha. 7-GB. Disciplinary action against president and members of the Gram Nirman Samiti and Gram Vikas.-The president and every member of the Gram Nirman Samiti and Gram Vikas Samiti shall be deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code, 1860 (45 of 1860) for taking any disciplinary action )1 against them.] , 7-H. Appeal in a C()mmittee against the decision of Gram Sabha. -An appeal against the decision of a Gram Sabha shall lie to a committee consisting olthe President ofJanpad Panchayat, a member of Janpad Panchayat of that area and the Sub-Divisional Officer (Revenue) in s:uch manner as may be prescribed. I; COMMENTARY S.D.O. alone has no jurisdiction to hear an appeal.-Section 7-H with Rule 3 of M.P. Gram Sabha (Appeal)Rules, 2001 provides specific forum of appeal by which S.D.O. alone had no jurisdiction to decide an objection/appealpreferred by respondent No.4.Held, Rule 3 empowers an AppealCommitteeto dedde the appeal and the S.D.O.(Revenue)is merely one ofthe constituents ofthe Appeal Committee.This being the position, the S.D.O.alonecouldnothave usurped the powersofthe entire Committee. Prathmik Om Sai Gramin Mahila Bahuddeshiya Sahkari Samiti Maryadit, v. Sub-Divisional Officer, Baihar, AIR 2009 (NOe) 533 MP = 2008 (3) MPLJ 617 = 2008(2) MPWN 99. 7-1. Budget.-Every Gram Sabha shall prepare annually in such form and in such manner and by such date as may be prescribed, budget estimates of its receipt and expenditure fat the next financial year. jl" , ! , 7-J. Gram Kosh. -Every Gram Sabha shall,establish a fund to be • ~ called. the. Gram. Kosh consisting offollowlng four. parts:- ,~ (t) Anna Kosh. (ii) Shram Kosh (iit) Vastu Kosh (iv) Nagad Kosh II " and there shall be credited thereto - \1 I~I 1 Ss. 7-GA and 7-GB ins. by M.P. Act 16 of 2004. w.e.f. 1-1-2005 , I , .'/ ,l ..'.-. • • I (PA)92 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHl., 1993 8.41 Rule 3(a) of the M.P./C.G. Panchayats (ApI'''''] "lid 1(evision) Rules, 1995, the Collector has full jurisdiction to entertain an appeal against the order passed by the S.D.b. and the Collector has exercised that jurisdiction, but has registered the case under the head of revision and by that action only it can not be said that the order passed bythe Collector would be thrown away holding it to be without jurisdiction because nojurisdictional error has been committed except the nomenclature which has been quoted as revision in place of appeal. ManJeet Ram Kewat v. State of C.G., 2006(2) CGW 396 = 2006(4) MPHT (CG) 76. I I I 'II, . II'Ii'I 12. Jurisdiction of Additional Collector.- Where the Collector was the officer who could hear an appeal or revision, on being authorised by the Collector, the Additional Collector could exercise the powers of Collector by virtue ofS.17 ofthe M.P.Land Revenue Code, 1959. 1999 (1)MPW 455 Foil. Smt. Johra Dayal v. State of M.P., 2001 (1) MPHT 154. 13. Removal of President of Janpad Panchayat.-Materials collected against petitioner not supplied to him and sufficient opportunity to produce his evidence to rebut allegations made against him, not granted. Order ofremoved passed by prescribed authority and affirmed by Appellate Authority are vulnerable being violative of principles of natural justice. Orders quashed. Raja Rajsingh v. State of M.P., 2001 (4) MPW 364. 14. Relative.-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,.broth~t, si~ter;-husband;wife-,1-3bn,-ditughter, inother-iii~la-,,;,fatlier- . in-law, sister-in-law, son- 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) MPW 274=2004 (4) MPHT 471=2005 (1) MP\V)'; 46 (DB). I I I ,I I , , 1141. Bar to hold more than one office.-(l) A person who is elected to more than one office of Panchayats, may by notice in writing signed .by him and delivered to the prescribed authority within 10 days from the date on which he is elected, or the later dates, .jf he Is 'eJected on different dates, intimate in which of the Panchayats he wished to serve as an office bearer and thereupon his seat In other Panchayats In which he does not wish to serve shall become vacant. (2) In default of such Intimation within the aforesaid period he shall be deemed to have opted for only one of the offices In the follOwing order of preference:- (a) a member of Zila Panchayat. (b) a memb<;r of Janpad Panchayat. (c) a Sarpanch of Gram Panchayat. Jd) .a PanGh of Gram Panchayat: ProVided that if such a person has attended a meeting of a Panchayat before delivering the notice he shall be deemed to have opted for the office in the said Panchayat. I Subs. by M.P.26 of 1994 130.5.94). ) 8.40 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)91 ,- It may also be borne in mind that a removal ofa Sarpanch who is directly elected is a serious matter and a person who is removed is further disqualified for a period of six years to be elected under the Act. It is not sufficient to give a mere lip-service to the requirement oflaw. It is true that it is not specifically provided in Section 40 that principles of natural justice shQuld be followed while holding an enquiry but itis implicit in this provision that the office bearer who is sought to be removed will be given a fair hearing. Kailashkumar v. State of M.P., 1999 (2) MPLJ 722=2000 (l) MPHT 143=1999 (2) JLJ 280. ; 8. Opportunity to show cause.- The opportunity to show cause should be real opportunity. The person proceeded against must not only be told the allegations of misconduct, but he must also be informed of the materials which is sought to be used against him in support of charges so thathemay offer his explanation in respect of that material. A person who holds office as a member or as President has a right to continue in the office until the expiry of the term. T)le order ofremoval which is passed under the section affects this valuable right and the finding of misconduct on which such an order is based casts a stigma in the public life of the person. Having regard to these consequences, the power ofremoval is quasi-judicial in nature. The Supreme Court in AIR 1972 SC 1571 observed that the order contemplated by the provision removing a member was quasi-judicial in nature and that it was not only desirable but also essential that the authority passing the I order should give reasons. It was' flirther pointed out-thata1lthe Inateriai-"- :.__C.' . should be disclosed to the person concerned so that he may give an effective answer not only to- the averments contained in the show cause notice but also to the materials on the basis ofwhich the show cause notice was issued. Bansmani v.State ofM.P., 1980 JLJ 60. Followed in Raja Raj Singh v.State of M.P., 2000 (1) MPHT 490=2000 (2) JLJ 242. 9. Meaning of "as far as possible".-In proviso of S.40(1) the phrase used like 'as far as possible' by the legislature without giving consequence on its failure has got a great significance. That means it does not mandate that the proceedings must be completed within a period of 90 days failing which it should be dropped. Manjeet Ram Kewat v. State of C.G., 2006(2) CGLJ 396 = 2006(4) MPHT (CG) 76. 10. Suspension of Sarpanch.-Show cause notice should be accompanied with charge sheet detailing all allegations against him. All materials which substantiate allegations in the notice should be supplied. An opportunity to furnish reply should be real one and not a farce. Sarita Mabre v. State of M.P., 1998 (1) JLJ 420. 11. Jurisdiction.-Sub-Divisional Officer dropped the proceeding hold- ing that more than 90 <lays'tillie has 'elapseli from tne date of issuance of show cause notice. Complainants filed revision before the Collector who '--aliowed'th,nevision'ill'fd'oi'ltei'ed'Wremove the petitioner Sarpanch ws. 40(1) ofthe Act giving finding that petitioner was guilty ofmisconduct. Held, that Collector was hot justified in passing an order on merits and instead of doing so, he should remanded the matter to the prescribed authority for a decision on merits as many statutory requirements to be followed by the prescribed authority before passing an order ws, 40(1). Furthermore under (PA)90 PANCHAYAT RAJ AVAM GRAM SWARAJADHI., 1993 8.40 .J to fIxthe date; time and place for the meetings ofthe Gram Sabha andlapses in this regard are not lapses on the part of Secretary. ~n ca"emeetings are not convened as provided, section 44(7) will apply and the Sarpanch can be removed for the said misconduct in exercise ofthe powers under this section; Bharatlal Yadav v. State o{M.P., 1999 (2) MPLJ 510. . [2] Provisions of S.40 shows that an office bearer of the Panchayat can be removed on two conditions, i.e. either he is found guilty ofmisconductin discharging of his duties or his continuance in office is undesirable in the interest of the public. But where no such conditions was established and it was not a case of gross negligence therefore the Addl. Commr. rightly set aside the order of removal in revision. Kishore v. State o{ M.P., 2008(3) MPHT 29.= 2008(2) MPWN 98 [DB]. 7. Principle of natural jus tice to be followed.-[l] In the instant case, the petitioner was Sarpanch of a Gram Panchayat. A show cause notice was issued to him in whi"h 15 charges were levelled against him. He submitted his reply to the show cause notice giving his explanation on each charge. He also requested for time to produce some more documents and adduce oral evidence. No witness was examined. by the S.D.a. in support of the charges nor the petitioner was permitted to examine any witness. The.impugned order of removal showed that reply to the show cause notice was considered in lightofthe report of the preliminary enquiry submitted by the B.D.a.No copy of this report or any other documimt \vas supplied to. the petitionee There was denial of fair hearing resulting in serious prejudice to the petitioner. The action ofremoval and disqualifIcation has tob" struck dowri .. as there had been failure of justice. The order of removal was not sustainable. It may, however, be noted that removal and disqualifIcation of an office bearer of a Panchayat under this section on the ground of misconduct is not less injurious and stigmatic as the removal of a civil servant under Art.3ll of the Constitution ofIndia or a workman under the Industrial law. Art. 311 also envisages an 'inquiry' in which the delinquent employee is informed ofthe charges against him and given a reasonable opportunity of being heard in respect ofthose charges. The celebrated rule of audi partem has been incorporated therein. What principles of natural justice should be applied depends upon the facts and circumstances of each case. AIR 1957 SC 882, AIR 1958 SC 300, (1987) AC 625, (1962) AC 322, 1996 SC 1669, AIR 1991 SC 101 ReI. Kailashkumar v. State o{M.P., 1999 (2) MPLJ 722=2000 ,i, ' .\ , , I . I \ (1) MPHT 143=1999 (2) JLJ 280. [2] The words in sub-section (1), "after such inquiry as it may deem fIt to make" would mean an inquiry which is held in the presence of the office-bearer and not behind his back. He should be allowed to inspect the documents which are to be relied upon against him and he should have the right to adduce his own evidence. These are the important facets of an inquiry to be held in conformity with the principles of natural justice. It is not the subjective choice of the prescribed authority to get an inquiry held of any kind. It does not envisage a secret inquiry or a preliminary inquiry alone. That is made only for collection of evidence and at that stage there is no participation ofthe person against whom the action is sought to be taken. The words "as it may deem fIt" have to be construed objectively and would mean an inquiry depending upon the facts and circumstances of each case. ) 8.40 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)89 I I granted till disposal of appeal. Amritlal Jaiswal v. State of M.P., 2008(111). MPWN108. I • II [8]Removal of office bearer of Panchayat.-(a) If at all any action is to be taken in view ofthis section for the purpose ofremoval ofofficebearer of Panchayat, the prescribed authority will have to hold firstly an inquiry for the purpose of finding out whether the delinquent happens to be guilty ofthings described by the provisions ofsub-clauses (a) and (b) or the proviso of sub-section (1) of section 40. Further, the prescribed authority will have to point out that the conduct ofthe delinquent was falling under the category of'misconduct' as indicated by the explanation provided to sub-section (1). The officer working as prescribed authority has to keep in mind that proposed action is likely to dislodge a person who has been duly elected by members of the public and that too for the purpose of holding the office as indicated by the Act for performance of the duties indicated by the post or various posts of such panchayats. There should be compliance ofthe necessary provisions of the Act when a person is to be punished legally. Where the person concerned is not proved to have committed any 'misconduct' he cannot be removed from the officehe is holding. Kamal Kishore v. Janpad Panchayat, Nalkheda, 2000 (1) MPLJ 309=1999 (2) MPLJ 470=2000 (1) MPHT=212=19!l9 (2) JLJ 370. (b) Removal of office bearer- Giving of opportunity to show cause is material and not the form. -The underlying principle under sub- section (l) is that an officer hearer,.,before he is removed from officemust-knciw'thEi'".' .• misconduct committed by him and is given an opportunity to show cause before his removal. It is providing an opportunity to show cause which is relevant and not its form. No particular form or mode having been prescribed it is left to the discretion ofthe State or the prescribed authority, either to indicate the act of misconduct or undesirability of continuance in' office in the show cause notice itself or separately. The mandate is that an opportunity to show cause is to be given before passing the order ofremove from office.Harishankar Patel v. State of M.P., 1999 (1) MPLJ 16 (DB). J i II 3. Form forgiving show cause notice.-Section 400ftheActdoes not "-, -I' prescribe any particular form in which show cause notice is to be given or the misconduct has to be enumerated. Harishankar Patel v. State of M.P., 1999 (1) MPLJ 16 (DB). 4. Ex-parte order.-Petitioner submitted his reply on notice but failed to appear on date fixed so SDOpassed an ex-parte order. Held, the said order is not given in violation ofnatural justice but is appealable under Rule 3 of Panchayat (Appeal and Revision) Rules, 1995.Pratap Singh Yadav v. State ofM.P., 2007(2) MPWN 59. 5. Difference of proceedings under Ss. 40 and 92.-Proceedings under section 92 are quite different than that of section 40. No action of ,.•."moval of a -Sarpanch of the. Gram. Panchayat can 00 -taken by the prescribed authority in the proceedings initiated under section 92. Maya' Choudhary v. State of M.P., 2012(2) MPLJ 90 = 2012(5) MPHT 240. 6. Misconduct and removal of Sarpanch.-Under the provisions of the Act a Sarpanch is required to convene periodical meetings ofthe Gram Sabha and the resolutions are to be passed therein. It is for the Sarpanch " "I (PA)88 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 199.1 8.40 basis ofwhich the proceedings are started. The order ofremoval ofan elected officebearer is also a penal provision contained in section 40 oftheAct, and in elected officebearer ofPanchayat elected by people is not to be branded unceremoniously. The show cause notice required to be issued under the said proceedings is to reflect the charges on the basis of which the proceed. ings are started under section 40 of the Act. Only after completing the proceeding in this manner for the purposes ofreaching to definite findings, whether any misconduct or other contingency mentioned in the provisions of section 40 of the Act is made out or not, the order can be passed by the .prescribed authority. If it is not done, the proceedings under section 40 of the Act would be vitiated. Since such impugned order has been passed in a proceedings initiated on the complaint made by the petitioner under section 92 ofthe Act and the power under section 40 of the Act have been exercised by the SDO, the order impugned cannot be sustained. Maya Choudhary v. State of M.P., 2012(2) MPLJ 90 = 2012(5) MPHT 240. ", ,, [7]Removal of Sarpanch ..(a) Removal of the petitioner from the post of Sarpanch. No proper enquiry was conducted by the SDO before ordering removal. Case remitted to the SDO to conduct enquiry in accordance with law. Manita Jaiwar v. State of M.P., 2009(3) MPLJ 370 = 2009(2) JLJ 333 = 2009(3) MPHT 70. (b)ASarpanch was removed Sub.Divisional Officer after considering an enquiry report submitted by three member committee. The petitioner was not given copy ofe.nquiry. report to submit his objections o~ explanations .... Principles of natural justice violated. Order of removal set aside and the Sub. Divisional Officer ordered to proceed after supplying a copy of such report to the petitioner. Rajendra Singh Raghuvanshi v. State of M.P., 2004 (4) MPLJ 6=2004 (3) MPHT 373. (c) Procedure.- In proceedings for removal of a Sarpanch, witnesses must be examined and the Sarpanch should be given an opportunity to cross-examine those witnesses. Babita Lilahare v. Surendra Rana, 2004 (1) MPLJ 27=2004 (5) MPHT 79. See also Kailashchandra Jain v. State of M.P., 2004 (4) MPHT 393. ' (d)Defective Enquiry.-Prescribed Authority though aware ofthe fact that the officers who prepared the enquiry report did not appear for crossexamination, yet proceeded to hold the petitioner guilty of charges on the basis of same enquiry report. It is not fair trial. An order of removaVdisqualification based on such defective enquiry cannot be given the stamp of approval. Smt. Phool Bai v. State of Madhya Pradesh, 2009(2) MPHT 68 = 2009(1) JLJ 437. (e) Secret enquiry or preliminary enqui,j alone is not enough. S.D.a. should hold enquiry according to law. Mangobai v. State of M.P., 2003 (2) MPLJU2. (f) Grant ofstay.-When an appeal is pending for hearing against the removal order of a Sarpanch and if the Sarpanch. filed an application for interim relief for staying the operation of the removal order, it cannot be refused because the holding of a democratic office and removal therefrom, under the Constitution of India, cannot be treated lightly. Stay should be I !- I to ,• 8.40 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)87 has,to,be enumerated. The mode followed for taking action under section 40 ,,if lield to be valid, it cannot be said to be invalid for action of suspension under the said clause (b) only on the ground that the charge sheet and notice to show cause were composite. Harishankar Patel v. State of M.P., 1999 (1) Ie n n •-.,- " MPLJ 16 (DB). 2. Removal of Sarpanch and/or Officer Bearers.-[l] Bar of continuing inquiry.Speci{iedPeriodFor.-(l) The proviso to 8AO(1)(c)ofthe Adhiniyam,1993 prescribes a bar of continuing inquiry beyond a particular period. The object ofthe proviso is that if an office bearer of the Panchayat has committed misconduct, then it is necessary for the prescribed authority to complete the inquiry within a period of90 days and beyond the aforesaid period, he has to take permission from his senior officer in writing and request extension oftime and time shall not be extended more than 30 days. The words which are used are that "such extension oftime shall not be more than 30 days". It means that even the higher officer isnot competent to grant more than 30 days time to complete the inquiry. It is in consonance with the object thatjfthere are allegations ofmisconduct against the office bearer of , a Panchayat, on which he could be removed, the inquiry must be completed within specified time and ifit is held that this is a procedural requirement and on this ground the inquiry would not be vitiated, then the prescribed authority may take indefinite time to conclude the inquiry, it would be against the intention and specific unambiguous intention of the statute. It is not only ~jJrocedurallaw but it is ft~ubstantiv~Jaw bec~lJseit givespower o[removal to theprescribed'-authorityto remove the-office bearersrifthe" Panchayat. Dhanwanti v. State of M.P., 2013(1) MPLJ 549 (DB) = 2013(2) MPHT 254 (DB). ,. j e 1 ; I ) [2JProcedure.-Tlll' authority on a complaint un<!er SAOof the Act had issued notices to petitioner in response t.owhich th~ petitioner_had filed an applicati.on under 8.11 .ofthe CPC but the S.D:q.,'instead of passing any order thereon, proceeded to rem.ovethcp,;t itioncr from the post of8arpanch under SAO of the Act. The authority.-wa.reqtlil'l'l[to give an opportunity to the petition!'!' to file a reply and th."reafterpa.s a detailed order after following the-pr.ocedure pl'!'m'ibe!lby the law under-SAO 'of the Act.Gyanmati Basore v, State of M.P.-,2013(2) MPLJ 200 = 2013(3) MPHT 320. [3] Prescribed authority has no jurisQiction to pass order .ofremoval of Sarpanch beyOnd period ofl20 days. Proviso to Section 40(1)(c) is mandatory in nature. 2013(2) JLJ 84 Relied on. Saniosh Raghuvanshi v. State 01'If.P,. 2013(2) MPWN 2B(DB). [4]Complaints, -Complaints against petitionerregardingnon-payme nt of wages to workers is a serious matter. Collector directed to take action againstthepetitioner:Kusuma Yadav v.Stat~ ofM.P., 2013(2) MPWN 109. , ,,[(jUt ,w~~_!,llgg~~t!!-"tSQP.~.u9!ofp~ti,tiQn!,r'~ t>!!~ba'\.~was unla)Vful. Sarpanch!Petitioner could not be dIsqualified on this ground and cannot be removed from the post of Sarpanch. 2012(2) sec 407 Foil. Guddi Devi v. State of M.P., 2013(2) MPWN 117. [6J Removal of office bearer of Panchayat.-Show cause notice required to be issued under the proceedings must reflect the charges on the I (PA)86 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 8.40 I ing any pecuniary benefits to any relative, such as giving out any type of lease. getting any work done through them In the Panchayat by an office bearer of Panchayat. ! Explanation.-For the purpose of this clause the expression 'relatlve' shall mean father. mother. brother, sister, husband. WIfe. Son. daughter. mother-In-law. father-In-law. brother-In-law. slster-In_ law. son-In-law or daughter-In-law:] ,i'• I ! I[Provided further that the final order In the Inquiry shall be passed WIthin 90 days from the date of issue of'show cause notice to the concerned office bearer and where the pending case Is not decided WIthin 90 days ..the prescribed authOrity shall inform all facts to his next senior officer in Writing and request extension of time for disposal I I I, days.]of the inqUiry but such extension of time shall not be more than 30 (2) A person who has been removed under sub-scction (1) shall forthWIth cease to be a member of any other Panchayat of which he is a member, such person shall also be disqualified Ii,,' a period of six years to be elected 2[ x x x J under this Act. COMMENTARY SYNOPSIS I. .Requirements of clause (1))of sub'sect.ion (1).. " _ 2. Removal of Sarpanch and/or Offi.cer Bearers. 3. Form for giving show cause notice. 4.. Ex-parte order. 5. Difference of proceedings under Ss. 40 and 92 6. Miscondnct and removal of Sarpanch. 7. Principle of natural justice to be followed. 8. OpPortunity to show cause, 9. Mcanil1~ of "as far as possible". '10. Suspension of Sarpanch. II.' Jurisdiction. .-------. ',.C-- 12. Jurisdiction of Additional Collector. 13. Removal of President of Janpad Panchayat. 14. Relative 1. Requirements of clause (b) of sub-section (1).-What is required under clause (b) of sub-section (1)is that.the officebearer is given a show cause notice for removal and he is served the charge-sheet. Once those twin conditions are fulfilled the prescribed authority get the jurisdiction to suspend the officebearer. The word 'alongwlth' in clause (b)ofsub-section (l)cannot be read to mean that notice to show cause forremove and charge sheet have to be separately given. Section 40 ofthe Act does not prescribe any particular form in which show cause is to be given or the misconduct 1 Subs. by M.P. Act 20 of 2005, w,e.f. 30~8-2005 for the-Tollowtng :_ "Provided that the final order in the inquiry shall as far as POSsible be passed within 90 days from the date of issue of show cause notice to the concerned officer bearer." 2 Omitted, by M.P. 26 of 1994 [30.5.94],the words "co-.opted or appoJnted", ,. S.40 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)85 ,I vacated. Kedar Singh v. State of M.P., 1996 (I) MPWN 125. tI 4. Delegation of power under sub.section (2) by State Govern. ment to 'Collector'. 'Collector' includes 'Additional Collector'.-The , State Government delegated its power under section 39(2) to confirm suspension of 'Sarpanch'. to the 'Collector' vide notification issued under section 93. By virtue of the provisions ofSs.15, 16 and 17 of the M.P.Land Revenue Code,the term 'Collector' includes "Additional Collector".Kaushal e ; e' ., ) l Prasad Kashyap v. State of M.P., 1999 (1) MPLJ 455. 5. Sub.section (2). Order of suspension of a Sarpanch of Gram Panchayat not confirmed by State Government within stipulated time. Effect.-An order of suspension of a Sarpanch of a Gram Panchayat has to be forwarded to the State Government and the State Government is obliged to pass some order one way or the other within 90 days. In case no order is passed within a period of ninety days from the date of its receipt then the order of suspension is deemed to have been vacated. Kedar Singh v. State of M.P., 1996 MPLJ 372. 6. Effect of amending Act 43 of 1997-Suspension under clause (b).- Where a Sarpanch was suspended under clause (b) of sub- section (1), the same clause having been omitted by amending Act 43 of 1997, the suspension ofthe said Sarpanch also goesaway on 5-12-1997, when the said Act came into force.Asha Dwivedi v. Sub-Divisional Officer, Deosar, 1999 (2) MPLJ76. -• '. -. - .- - --- ----...,.., .. -.'" --~- '."".'-' .._....- 40. Removal of office bearers of'Panchayat.-(I) The State Government or the prescribed authority may after such enquiry as it may deem fit to make at any time. remove an office bearer- (a) if he has been guilty of misconduct in the discharge of his duties; or (b) if his continuance in office is undesirable in the interest of the public: Provided thatriojJerson- shaUbi,removedliriies;,he has-h""ngiven' ----, an opportunity to show cause why he should not be removed from his office. , . , Explanation.-For the purpose' of this sub-section "Misconduct" shall include- (a) any action adversely affecting(I) the sovereignty, unity and integrity of India; or (ii) the harmony and the spirit,?f common brotherhood aIIlQngst all the people of Slate transcending religious. linguistic, regional, caste or sectional diversities; or . (iii) .the dignity. of women; or (b) gross negligence in the discharge of the duties under this Act. I[(c) the use of posItion or influence directly or indirectly to secure employment for any relative in the Panchayat or any action for eJdend- I Ins. by MP 2 of 199717-1-1997). (PA)84 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 8.39 rigour of S.39(1)(a) will not come in his way, merely because the appeal against acquittal has been admitted by High Court. True, it is that on appeal being admitted for hearing while exercising the powers of appeal; the judgment of acquittal can be reversed and the person acquitted can be con~icted, but the fact remains that there exist ajudgment of acquittal, which is operative in his favour and, therefore, he cannot be deprived to enjoy the fruits of the same, merely because appeal against the same has been admitted. Ramesh v. State of M.P., 2013(1) MPLJ 229 = 2013(1) MPWN 102 = ILR 2013 MP 74 (DB). 2. Suspension.-[l] There is no provision under the Act for suspending a Sarpanch only on the ground that the FIR is lodged against him. Section 39(1) specifically lays down that a Sarpanch can be suspended on framing ofa charge in a criminal case. Admittedly no charge has been framed against the present petitioner. Hence, impugned order cannot be sustained. Hukiya Bai v. State of M.P. , 2007(11) MPWN86. [2] No notice needed-The section does not require any show cause notice for suspension. This show cause notice for removal from the office is contemplated under section 40 of the Act while section 39(1)(b) only says about issuance of notice alongwith a charge-shcet to show cause why the person be nor removed from office.Harishankar Patel v. State of M.P., 1999 (1) MPLJ 217=1999 (1) JLJ 255. [3J Service of confirmation not necessary-Under sub-section (2) service of confirmation of order of suspension is not obligatory on the part . of the State Government'as a n;portis made to the State Governmentaild .. the State Government is supposed to act on the report and to pass the order within 90 days from the date ofreceipt ofthe report, ifthe State Government for reason whatsoever fails to confirmthe order ofsuspension within 90 days from the date of receipt ofthe report, then the fiction to come into play and the fiction is that in that event the order of suspension shall be deemed to have been vacated. Harishankar Patel v. State of M.P., 1999 (1) MPLJ 217=1999 (1) JLJ 255. [4]Suspension of Sarpanch-Show cause notice should be accompanied with charge sheet detailing all allegations against him. All materials which.. substantiate allegations in the notice should be supplied. An opportunity to furnish reply should be real one and not a farce. Sarita Mabre v. State of M.P., 1998 (1) JLJ 420. [5] Power to suspend withdrawn on 2-10-1997 by Ordinance. Action taken prior to that date does not come to an end. Goverdhani Bai v. State of M.P., 1998 (II) MPWN 49. . 3. Scope and effect of sub-section (2).-[1] No consequence is mentioned in the Act where there is failure in reporting of suspension to the State Government within 10 days. The provision is obligatory. But where such suspension is not so reported, the order ofsuspension would not stand vacated automatically. Second part of the provision in the sub-section regarding confirmation of suspension order within 90 days is mandatory. Arjunlal Gupta v. State of M.P., 1998 (1) JLJ 12.8. [2] Where an order suspending the Sarpanch is not confirmed by the State Government within 90 days, suspension is deemed to have been I 8.39 PANCHAYAT RAJ AVAM GRAM SWARAJ ADH!., 1993 (PA)83 COMMENTARY e SYNOPSIS ; d , 1. General interpretation. I-A. AppealagainstacquittalhasbeenadmittedbyHighCourt-Effect. 2. Suspension. 3. Scopeandeffectof sub-section(2). 4. Delegationof powerundersub-section(2)by StateGovernment' to 'Collector'-'Collector' includes'AdditionalCollector'. 5. Sub-section(2)-Orderof suspensionofa Sarpanchof Gram Panchayat not confirmed by State Government within stipulated time-Effect. . 6. Effectof amendingAct43of 1997. 1 1 I , . 1. General interpretation.-[l] The section provides for suspension of an office-bearer, namely, the Sarpanch, Up-Sarpanch or a panch of a Gram Panchayat and President, Vice-President and member nf a Janpad Panchayat or Zila Panchayat. [2] Powers are vested in the prescribed Officer to suspend any of the above under the circumstances mentioned in clause (a) of sub- section (1). [3] Clause (a) enumerat~s the list ofoffences and it says further that if criminal proceedings have been initiated against any office-bearer and charges have been framed against such office-bearer in such proceeding then, the concerned office" bearer may-be -suspended by fh,,, presctibed' ; Authority. [4] It is then provided in sub-section (2) that the oraer of suspension I r shall be reported (intimated) to the State Government within ten days of the passing ofthe order. The matter then rests with the State Government to deal with it and pass necessary order thereon. The only other provision made in this sub-section is that if the order of suspension is not confirmed by the State Government within ninety days of the receipt of report then, the order of suspension will automatically lapse. [5] Provision is made in sub-section (3) for election ofofficiatingSar-' panch, or President in a special meeting called by the Secretary or the Chief Executive Officer, as the case may be. Such officiating Sarpanch or President shall continue in officeduring the period ofsuspension. [6] Sub-section (3) also provides that where the office of Sarpanch or President was a reserve one for member of a Scheduled caste or Scheduled Tribe or a woman, the officiating 8arpanch or President shall also be elected from the same caste or sex as the case may be. I-A. Appeal against acquittal has been admitted by High Court-. Effect.- In Section 39(1)(a) and (2) of the Adhihiyam, 1993 the Prescribed Authority has power to suspend from officeany officebearer against whom cI1arges .have been framed in. any criminal proceedings for the offences mentioned in sub-clause (a). The order of suspension passed under subclause (I) is required to be reported to the State Government within the prescribed period of 10days and shall be subject to such orders as the State Government may deem fit to pass. The petitioner having been acquitted by the Competent Criminal Court, of the charges framed against him, the I (PA)82 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 8.39 'II , I[x x xl 2[(2) T"~ onler of suspension under sub-section (1) shall be reported 10 Ihe Slate Government or authoIised officer Withina period of ten days and ,hall be subject to such orders as the State GovernmenloI' the aulhoIised officer may deem fit. If the order of sUspension is not confirmed by the State Government or authoIised officer Within ninety days from the date of receipt of such report. it shall be deemed to have revoked.] 3[(3)In the event that the Sarpanch of Gram Panchayat, President of Janpad Panchayat or Zila Panchayat, as the case may be is suspended under sub-section 0). the Secretary or the Chief Executive Officer of the concerned Panchayat shall cause to be called a special meeting of the Panchayat immediately, but not later than fifteen days from the date of receipt of information from prescribed authority and the members shall elect from amongst themselves, a person to hold the office of Sarpanch or President temporarily, s the case may be, and such officiating Sarpanch or President shall perform all the duties and exercise all the powers of Sarpanch or President as the case may be, during the period for which such Suspension continues: Provided that if the officeof the Sarpanch or President is reserved for the member of Scheduled Castes or Scheduled Tribes or other Backward Classes or.fo,ra woman, the officiating Sarpanch'oi.Presi_ r category:dent shall be eiected from amongst the m~mbers belonging to the same Provided further that where the office of Sarpanch or President is reserved for a woman belonging to Scheduled Castes or Scheduled Tribes or other Backward Classes and there is no other woman member of the Panchayat belonging to that category who can be elected to officiate as Sarpanch or President. as the case may be, any other woman member belonging to the other reserved categories, may be elected to offl'ciate as Sarpanch or President as the case may be]. ! I (4)A person who has been suspended under sub-section (1) shall also forthWith stand suspended from the office of member Or office bearer ofany other Panchayat ofwhich he is a member or officebearer. Such person shall also be disqualified for.being elected 4[xx xl under the Act during his suspension, . I I CI.(b) omItted by MP 43 of 199712-10-19971. 2 Subs. by M.P. Act 26 of 2012 [23-5-2012J. before substitution it was as follows:"(2) The order of sUspension under sub-section (lJ shall be reported to the State Government within a period of ten days and shall be subject to such orders as the State Government may deem fit to pass. If the order of Suspension is not confirmed shallby thebeStatedeemedGovernmentto have vacated."Within 90 days from the date of receipt of such report 1t 3 Subs. by MP 43 of 1997 [5-12-19971. 4 Omitted, by M.P. 26 of 1994 [30.5.941. the words "co-opted or appointed". I. .I 38 8.39 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PAlS1 re- [2]Where a casual vacancy occursin the officeofthe Sarpanch ofa Gram Panchayat, the Secretary ofthe Gram Panchayat shall cau'l~to be called a special meeting ofthe Panchayat as soon as possible but not later than 15 days from the date of receipt of notice of vacancy from the Prescribed Authority. In the meeting socallcu, the members shall elect a new Sarpanch of m al ys ty from amongst themselves temporarily till a new Sarpanch is -elected in accordance with the provisions ofthe Act and the rules. Where the post of casual vacancy was reserved for any of the communities or for woman then st~. it will be filled by the member ofsame community or a woman. In case no other woman of the reserved class is available then a woman of any other category may be elected temporarily. [s IS le _ [3]It is very important to note that the secretary has not to rush for calling the aforesaid meeting unless he is intimated by the prescribed authority that a vacancy is caused. The reason is that a resignation may also be withdrawn, therefore, the secretary should wait till he receives intimation ofvacation from the aforesaid authority. e j rr r r f 3. Handing over of charge.-Where the outgoing office-bearer fails to hand over any record, article, money or property of the panchayat, the prescribed authority may direct him to do so and if he fails to comply his direction then, steps under section 92may betaken against him and he may also be prosecuted under section 98. .- . [4]The temporary' filling up ofthe post ofaS"lJ'ancll under c1ause(b} • -- of sub-section (1) of Section 38 'does not create aright in favour of such officiating Sarpanch to claim that no election can be held under clause (a) ofSub-section (1) ofSection 38till the entire term expires. Phoola Ea,-v. The State, 2009(2) MPHT 75 = 2009(11) MPWN 21. 39, Suspension of office bearer of Panchayat. -(1)The prescribed authority may suspend from office any office bearer- (a) against whom char~e.s, have been framed in any cr~lnal ,., 'proceedings ulucr (Chapter V-A. VI. !Xl, IX-A. X, XII. Section 302. 303. 304-B. 305, 306. 312 to 318. 366-A, 366-B, 373 to 377 of Chapter XVI.Section 395 to 398, 408, ..409, 458 to 460 of Chapter XVII and Chapter XVIIIof the Indian Penal Code. 1860 (XLVof 1860) or under any Law for the time being in force for the prevention .of adulteration of food stuff and drugs, 2[suppression of Immoral traffic in wom.en and children, protection of civil rights and Prevention of Corruption]: or ---------------- Subs. by M.P.Act5 of 199915-4-19991. Subs. by M.~.Act 5 of 1999[5-4-19991. (PAlBO PANCHAYAT RAJ AVAM GRAM SWARAJ ADH!., 1993 8.38 accordance With the provisions of the Act and the rules made thereunder; . j ,"iI I , I I((b) in the event of occurrence of a casual vacancy inthe.offlce of' the Sarpanch of a Gram Panchayat, the Secretary of the Gram Panchayat, as the case may be. shall cause to be called a special meeting of the Panchayat immediately, but not later than fifteen days from th!, date of receipt of information from the prescribed authOrity regarding the vacancy and the members shall elect from amongst themselves a person to hold the.office temporarily till a new Sarpanch: as the case may be, is elected in accordance With the provisions of this Act and the rules made thereunder and such officiating Sarpanch, as the case may be, shall perform all the' duties and exercise all .the . powers of Sarpanch, dUring the pendency of election: l Provided that if the office of the Sarpanch is reserved. for the member of Scheduled Castes or Scheduled Tribes or other Backward Classes or for a woman, the offioiating Sarpanch shall be elected from amongst the members belonging to the same category: ,: Provided further that where the office of Sarpanch is reserved for a woman belonging to Scheduled Castes or Scheduled Tribes or other Backward classes, and there is no other woman belonging to that category who can be elected to officiate as Sarpanch, any other woman belonging to the other reserved Gategories may be elected. to offiCiate as Sarpanch during the casual vacancy].. ...•....__ , cY(c] if the' out-going office-beare~ fa\ls to hand over any record, article, money or property of the Panchayat forthWith to his successor the prescribed authority may by order in writing direct him to do so and on his fallure to comply With such direction the prescribed authority may proceed against him in accorQance With Section 92 and take necessary steps to prosecute him under Section 98.] (2) 210mittedJ COMMENTARY 1. Casual vacancy.-If before expiry of the term. a casual vacancy in the officeofany office-bearer may occurdue to followingreasons:- (i) When such an officebearer expires; (ii)When such an officebearer resigns from his office; (iii) When a no-confidencemotion is passed against him; (iv)When he is removed fromhis office;and (v) When he becomes member of State L~gislative Assembly or either ij, Ii House ofParliament. . . 2. Filling of casual vacancy.-fl] Where a casual vacancy in the office of an office-bearer occurs, it has 'got to be filled as SOonas possible in accordance with the provisions ofthis Act and the Rules made theretmder. • , 1 Subs. by MP 43 of 1997 [5'12-1997) . 2 Omitted by MP43 of 199715-12-1997). : f, II 8.38 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)79 a person conceals hi~ real caste and contests election on a seat reserved for Scheduled Caste or Scheduled Tribe and gets hill'self elected, his election can be challenged either under section 122 of the Panchayat Act or under section 36(2) ofthe same Act. Roshanlal Maravi v. Shambhoo Singh, 2005 (1) MPLJ 467=2005 (1) MPHT 309 (DB). 37. Resignation by officer bearer of Pancbayat.-( 1)1\panch of a Gram Panchayat or a member of Janpad Panchayat or a member of Zila Panchayat may' resign his office by giving notice tn writing to that effect to the Sarpanch or President as the case may be. (2) The Sarpanch or Up'Sarpanch of a Gram Panchayat or the President or Vice-President of a Janpad Panchayat or Zila Panchayat may resign his office by giving notice in writing to the prescribed authority. (3) The manner of giving notice and procedure for tendering resignation and Its becoming effective shall be as may be prescribed: Provided that a person tendering resignation may withdraw his resignation before It becomes effective. COMMENTARY Acceptance of resignation. ord.er- Validity ~f,-Under S.3'7ccthec resignation could not be accepted without affording him an opportunity to reconsider the decision, the Rules have been framed under Section 37 namely the M.P. Panchayat (Resignation by Officebearers) Rules 1995 and according toits Rules 3& 4,the resignation couldbe accepted under sub-rule (4) of Rule 4 only af'ter a full and complete compliance with the provisions of preceding two sub-rules of Rule 4, contemplating consideration thereon by Panchayat at its next meeting under notice to the petitioner. A bare perusal of the record would reveal that the resignation has been accepted by circumventing the procedure prescribed therefor, hence non-compliance with the mandatory'j,rovisionsofsub-rules (2)'lliid(3) i,fsuffiCienttoh"ld . that the resignation was not validly accepted. Bihari Dos v. State of M.P., 2014(1) MPLJ 148 = 2013(4) MPHT 542 = ILR 2013 MP 1069. Rules:- The State Government has made the followingrules in exerciseof the powers conferred by this section. These Rules shall be found under Rules given separately. "PANCHAYAT (RESIGNATION BY OFFICEBEARER) RULES, 1995" 38. Filling up of vacancies.-I[(I} (a) In ithe event' of death, resIgnation, no confidence motion, or removal of an office bearer of a . -P:rnchayatbr-onhls becbrnlhga: meniber of State Legislative Assembly or a member of either House of Parliament. before the expiry of his term, a casual vacancy shall be deemed to have occurred in his office and such vacancy shall be filled as soon as may be by election In 1 Subs. by M.P. 26 of 1994 [30.5.94). ..~. I,I PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 8.36 (PAl78 i : contests the election after concealing the disqualification or no person who has become disqualified after the elections are over is continued as an office bearer in the Panchayat." Not only this, the Collector als'o has to se~ that whether the disqualification is removable an if yes, but not removed then in such a case the Collector may declare that the officehas became vacant. Bhuvaneshwar Prasad v. State of M.P., 2009(1) MPLJ 434 (DB) = AIR 2009 (NOC) 242 MP (DB) =2008(5) MPHT 72 (DB) = 2008(3) JLJ 293: 13. Incompetent proceedings.-Ifincompetent proceedings were sub~ mitted before the S.D.a. then the question "questioned and decided by an election petition" would not come up as a bar because a. question can be raised and decided in a validly constituted election petition, Bhuvaneshwar Prasad v, State of M.P., 2009(1) MPLJ 434 (DB) = AIR 2009 (NOC) 242 MP (DB) = 2008(5) MPHT 72 (DB) = 2008(3) JLJ 293. ' . 'i,, I , 14. Procedure to be followed by S.D.O..-When an election petition was not duly constituted is filed before the S.D.a. and the S.D.a. finds that the question raised in the petition can be conveniently decided by a higher officer in exercise of the powers under S,36 then a reference certainly could be made by him because S.36(3) clearly provides that the Collector may give his decision either on an application made to him by any person or on his own motion. Bhuvaneshwar Prasad v. State of M.P., 2009(1) MPLJ 434 (DB) =AIR 2009 (NOe) 242 MP (DB)=2008(5) MPHT 72(DB)=2008(3) JLJ293. 15.Appeal against deCision of competent authority.-[l) Provision is made iii sub-$ectiort (4) for preferring an appeal against the decision;'f ,,'" the competent authority by the person aggrieved. Where such decision is ' given by a Collector, the appeal would lie to the Commissioner and where the decision is given by the Commissioner the appeal would lie to the Board of Revenue. [2]Limitation for such appeal is provided as 30 days from the date of order. 16. Quo Warranto Writ,-Can be issued by the Court when a person in a public office has been appointed in violation of statutory provisions. Virendra Tyagi V. State of M.P., 2011(1) MPLJ 245 ='2011(1) iJLJ 181 =' 2011(2) MPHT 361. 17. Finality of decision.-[l] An order passed in appeal shall be final, meaning thereby that no further appeal against such a decision would be competent. It should also be understood that a decision ofthe Commissioner as a competent Authority is appealable but his decision as an appellate authority would be final because no second appeal against his decision is provided in this sub-section. ' I I , , I iI I "I, i',,' '." i:, ' i i ", I ii :1, II! :1 W ,I ,," ,, ", 'I. [2) Writ not tenable.- The Upper Collectovhaving conducted an enquiry set aside the election ofthe petitioner as Panch on the ground that his fourth child was bom on 17-2-2001 that is to say, after the cut off date 26-1-2001. Held, alternative appeal remedy available hence this writ is not, maintainable. Dhaneshwar Devangan v. State ofC.G., 2006(1) CGLJ 221 ~J ~ll '~ ,i~: I,!ii = 2006 CGLT 29. 18. Concealment and misrepresentation of caste.Contesting on reserved seat and getting ekded.Challenge to such election.- Where l l i ,'I, , S.36 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)77 [3] Disqualified for the post of Office Bearer.-Th, petitioner gave his one child out of three, to his brother. The registered adoption deed was executed after the cut-off date. Hel&that petitioner has three children at the time ofelection therefore he was rightly disqualified to contest election ofmember ofJanpad Panchayat by the Returning Officer. Pradeep Kumar Tiwari v. State of M.P., 2006(3) MPLJ 276. 8. Bar when not applicable.-Contention that in view of ~ub-section (2), elected officebearer.ofPanchayat is removable only after filing election petition. Sub-section (2) of section 36 of the Adhiniyam is to be read in context to sub-section (1). In order to construe section 36(1) as well as sub-section (2), both the provisions are to be interpreted in order to make the section 36 as a whole workable. Contention rejected because this bar would not come in the way when a writ petition seeking relief of quo warranto is filed. Suresh Baba s/0 Agya Ram Sharma v. Virendra Tyagi, 2011(1) MPLJ 454 = 2011(1) MPHT 72. 9. Decision about vacancy.-[l] As stated above, an office-bearer who becomes disqualified subsequently, shall be so declared and his office shall be declared vacant by a competent authority. The competent authority is,-. (I)Collector, in the case of Gram Panchayat and Janpad Panchayat; (il) Commissioner, in the case of Zila Parishad. [2]The competent Authority shall givehis decision either on an application being jllade by any pe.rson or.he.may.do so on-his.own motion, But no--' .. order shall be passed 'against any person without giving him a reasonable opportunity of being heard. For comments. on 'reasonable opportunity', kindly look to comments under 8s.40 and 87. 10. Evidence.-Unfair means and corruptpractice.-80me evidence does not lead to a conclusion that returned candidate had taken recourse to unfair means and corrupt practice. Uma Shimkar Chobey v. Madan, ILR 2013 MP 2603. 11. No cessation till decision.-It is also provided in sub-section (3) that no person shall cease to be an officebearer until it is decided by the competent officer that he is disqualified and his post is declared vacant. 12. Interpretation of Sub-sections (2) & (3). (a) Sub-section (2~-word "and"to be read as "or".-In the language employed in Section 36(2)(a) is "concealing his disqualification for it which has not been questioned and decided by any election petition under Section 122"would not mean that filing of the election petition itself would arrest the jurisdiction of the Collector. The word u'sed "questioned and decided" 'are to be read as one qualifYing condition. The words "questioned" and "depjqed" are to be read as one. The wonJ 'and'',certainly can be reacJ as 'or' if the intention of the legislature is not clear or the law requires the word "!lnd"j;o bel,l~ed '!s,"or".Bhuvane~hwar Prasadv.St-ate of M.P.,-2009(1) . "MI'>LJ434 (DB) = AIR 2009 (NOe) 242 MP (DB) = 2008(5) MPHT 72 (DB) = 2008(3) JLJ 293. (b) Sub-section (3).-Sub-section (3), if is read in its true perspective and in accordance with legislature then would clearly show that legislature wanted the Collector to exercise the power to see that no disqualified person 8.36 , . \ I I \ I I (PA)76 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 8.36 of his release. Appellant was convicted under section 302, Penal Code and was sentenced to life imprisonment. Five years h'!tve not yet been elapsed after his release and, therefore Writ Court has rightly held that the appellant was having disqualification for holding the office ofSarpanch. Suresh Baba s/o Agya Ram Sharma u. Yirendra Tyagi, 2011(1) MPLJ 454 = 2011(1) MPHT 72. '. . 5. Disqualification ofmember.-Disqualification of member under is a matter of.record. Prabhasingh u. State of M.P., 1998 (II) MPWN 37. . [2J Convicted person should vacant the post.-A convict cannot be allowed to occupy an elected post where a statute clearly prohibits. Section 36(1)(a)(ii) is quite clear that a person will not be eligible to hold a post for a period of 5 years if he has been convicted for not less than six months. Respondent No.9, President, Janpad Panchayat, Shahpura was convicted under S.326 of IPC andS.25 of Arms Act and sentenced for a period of 3 years and remained in custody till 2003. He could not have contested till . 2008 in view of provisions of Act and he will cease to be such office bearer. His post shall became vacant. Shiv Singh Rawat v. State of M.P., 2008 (2) MPLJ 573 = 2008(2) JLJ 124 = AIR 2008 (NOC) 1390 = 2008 MPHT 41[DB]. [3] Past disloyalty is also disqualification to election of Sarpanch.-Conductof police constable of showing indecentbehaviouLwith,. woman guard, posted injailwatd, exerclse of undue power, using abusing language, show disloyalty. He had not adhered to the official discipline that was expected to him. Held, he has incurred the disqualification u!s.36(1)(e) of the Act for the post ofSarpanch. Surendra Singh u.Nasrat Ali, AIR 2007 (NOC) 2581 MP[DB] . . 6. Disqualification becoming inoperative.-Where an.officebearer was convicted but his conviction was suspenlled by the High Court in appeal, he cannot be treated as convicted and consequently cannot be removed from the office. Every consequent disqualification becomes inoperative and . remains in abeyance pehding his appeal. Janiuiia 'Prasad Jaisani u. Smt. Shikha Dubey, 1999 (2) JLJ 382. 7. Previous provision of S. 36(1)(m).-Disqualification Clause Jm) of sub-section (1) of Section 36 has been deleted by M.p. Act 27 of2006 w.e.f. 1-09-2006, before deletion it was as follows.- "(m) has more than two living children one of whom is born on or after the 26th day of January, 200t" Some cases regarding previous S. ~6(1)(m).- [lJ Birth date oflast issue accepted as 5-12-2000, extended date by High Court was 30-4-2001. Held, disqualification not attracted. Siyawati u.Phoolwati, 2009(1) MPHT 301 = 2009(1) JLJ 431 = AIR 2009 (NOC) 425 MP = 2008 (4)-MPW437 =2009(2) MPWN 49. .. [2JSince the fifth child of appellant was born on 17-03-2001 and not on 17-3-2000 prio~ to 26th January, 2001 therefore the appellant has earned disqualification under S.36(I)(m) ofthe Act. Lajja Bai u. State of M.P., 2008 (2) MPLJ 26 = AIR 2008 MP 185[DBJ. . • PANUl'tlirAl' HAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)73 U he shall, subject to the provisions of sub-section (3), cease io be such office bearer and his office shall become vacant: e '.Provided that where an application is made by an office bean .•.to the Panchayat for leave to abSent himself under clause. (c) and thc P,mchayat frols to inform the applicant of its decision on the application within a period of one month' from the date of receipt of the application, the leave applied for, shall be deemed to have been granted by the Panchayat. , (3) In every case the authority competent to decide whether a vacancy has occurred under sub-section (2) shall be Collector in respect of Gram Panchayat and Janpad Panchayat and Commissioner in respect of Zila Perished who may give his decision either on an application made to him by any person or on his own motion. Until, the Collector or the Commissioner, as the case may be, decides that the vacancy has occurred, the person shall not cease to be an office bearer: Provided that no order shall be passed under this sub-section against any office pearer without giving him a reasonable opportunity of being heard. . (4) Any person aggrieved by the decision of Collector or Commissioner, as the case may be, under sub-section (3), may, within a period of 30 days from the date of such decision appeal to Commissioner or Board of Revenue respectively whose orders in such appeal shall be . finaL. . . COMMENTARY SYNOPSIS I. Objectof thesection. 2. Applicability. 3. Persons who are disqualified. 4. Disqualificatjon. 5. DisquaUfication of member. 6. Disqualification becoming inoperative. 7. Previousprovisionof S. 36(l)(m). 8. Barwhennotapplicable. I ,! 't' .9. Decision about vacancy. 10. Exidence. 11. No cessation till decision 12. Interpretationof Sub-secti0l1S(2) & (3). 13. Incompetent proceedings. '. 14. Procedureto befollowedbyS.D.O. 15. Appeal against decision of competent authority. 16. QuoWarrantoWrit 17. Finalityofdecision. 18. Concealment and mislcpresentation of caste-Contesting on reserved scat and getting elected.Challenge to such election. 1.Ohject of the section.-The section specifies those person who would not be competent to become an officebearer ofany panchayat. The category Dawgnar,-"uur\ll} IVll"LJ-1l7b=ZIJUr(5) MPHT 466. [5] Effect of disqualification suppressed - election declared illegal.-Respondent did not pay the dues recoverable by the Panchayat and subsequently contested an election ofJilaPanchayat by suppressmg the fact ofhis disqualification and was elected. He was also proceeded under SAO of the Act and was removed from the post of Sarpanch. Held that he was no.' entitled to hold the office as he was not eligible to contest the election. I, . does not require any inquiry. His election dedared illegal. AIR 1999 SO 17~ : and AIR 2003 SC 2128 Relied. Suresh Clwudhary vAtarlal Verma, 2006W' MPLJ 506 = 2006(3) MPHT 213. 4. Disqualification.-[l] Factum of encroachment must be constru~d strictly, in absence of any evidence, candidate -cannot be held to be dISqualified. Geeta Bai v. Sub Diviswnal Officer, 2013(3) MPLJ 106 = ILR 2013 MP 2579 = 2013(5) MPHT 196. [2] Provision makes the person ineligible to be the office bearer of Panchayat if he is convicted and sentenced to not less than 6 months imprisonment and unless a period of five years has elapsed since the date \ (PA)72 PANCHAYAT RAJ AVAM GRAMSWARAJ ADHl., 1993, , S. 36 of 1973) or In any Co- operative Society which shall contract with or be employed by or on behalf, of the Panchayat; or I • (ii) having share or Interest In any newspaper In which any advertisement relating to the affairs of the Panchayat Is inserted; or ' (Hi) holding a debenture or being otherwise concerned In any loan raised by or on behalf of the Panchayat;• (g)'.Is employed as paid legal practitioner on behalf of the Panchayat; or (h) Is suffering from a variety of leprosy which Is Infectious; or (i) has voluntarliy acquired the citizenship of a Foreign State. or is under any acknowledgment of allegiance or adherence to a Foreign State; or U) has been disqualified under the Act repealed by Section 130 during the period of fiveyears preceding the date of filing a nomination paper in any election to be held for the first time under this Act and the period of such disqualification has not elapsed or the disqualification has not been removed; or (k) is disqualified by or under any law for the time being in force for the [niipose of election-tothe StMe Legisla.tiveAssembly: Provided that no person shall be disqualified on the ground thai he is less than 2'5 years of age if he has attained the age of 21 years. (1) is so disqualified by or under any law made by the legisla- ture of the State. Ilx x xl (2)If any person having been elected 2[xx xl as an office bearer of Panchayat:- (a) subsequently becomes subject to any of the disqualification mentioned In sub-section (1) and such disqualification Is not removable or being removable is not removed 310rbecomes office bearer concealing his disqualification for it which has not been questioned and decided by any election petition under Section 122J; (h) accepts employment as legal practitioner against the Panchayat; . (cl , absents himself -from three coilsecutlve meetings of the Panchayat or its Committee or does not attend half the number of me!'tlngs held during .the pJ;Jiod of six months without the leave of the Panchayat; , "1 Cl. (m) was ins. by M.P.14 oJ 2000, w.e.f.26.1-2001 arid deleted -bY MP Act 27 of 2006. w.e.f. .1-9-2006, before deletion it was as under:- '" , "{m}has more than two living children one ofwhorn is born 1111' or after-the 26th day of January.,2001." . '. . ' 2 Omitted by M.P. 26 of 1994 [30.5.941 the words "nominated '~rl'(Jopte"d"". 3 Added by M,P.Act 5 of 1999 15-4-1999). 8.36 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)71 elapsed since his conviction; or i- (ll) ofany other offence and had been sentenced to imprisonment for not less than six months. unless a period of five years or such less period as the State Government may allow in any particular case has elapsed since his release; ; s; )- or (b) is of unsound mind and stands so declared by a competent court; or (c) is an appllcant to be adjudged an insolvent or is an undischarged insolvent; or ,s n n II (ca) I[x x xl n 2[(cb) has not paid all the dues which are recoverable by Panchayat and h(ls not flied with nomination paper. the declaration ofsuch intention that no money is due to be paid by him on any account payable to the Panchayat; or (cc) has encroached upon any land or buildings of the Panchayat and Government; orl (d) hold an office of profit under any Panchayat or is in the service of any other local authority or Co-operative Society or the State Government or Central Government or any Public Sector Undertaking under the control ofihe Central Government or the State Government; Provided that no person shall be deemed'to have incurred disqualification under this clause by reason of being appointed as a Patel under the Madhya Pradesh Land Revenue Code. 1959 (No.20 of 1959); or 3[(e) has been dismissed from the service of the State Government or Central Government. or a panchayat. or any other local authority. or a Co-operative Society.. or any Public Sector undertakings under the control of the Central Government or the State Government for corruption or for disloyalty; or) . ,e If .- 'e .e ;0 t, d h a ,e If,- J. t. t, a "•" I e (I) has directly or indirectly any share or interest in any con- tract with, by or'on behalf of the Panchayat. while owning ,such share or interest; Provided that a person shall .not be deemed to have incurred disqualification under clause (I)by reason of his- (1)'Having share in any joint, stock company or a share or interest in any Association registered under the Madhya Pradesh Society Registrikaran Adhiniyam. 1973 (No. 44 Clause (ca) subs. by M.P. Act 8 of 2005 (l2~4-'2005l then onrltted by M.P. Act 18 of _.2007.[25-5-2007). Jhe omitted clause was as under:~ M(cal even after one year of being elected, does not have flush latrine in his residential premises; or". New <;lauses (cb) & (cc) ins. by M.P. Act 16 of 2004, w.e.f. 15-12-2004, vide s 2 Notification dated 15-12:-2004. pub. In M.P. Gaz.. Ext. Ordy.. dated 15-12-2004, p. 1113/' . Subs. by M.P.AcI5 of 1999 [5-4-19991. .3 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 8.36 (PA)70 (i) l[two and half year] from the date on which tn:e Zila President or Vice- President enter their respective office; (ii) Six months preceding the date on which the term of office of the President or Vice-President as the case maybe, 'expireS; (iii) 2[six months] from the date on which previous motion o(noconfidence was rejected. 3[(4)If the President or Vice-President, as the case.maybe, desires to challenge the valldlty of the motion carried out under sub-section (I). he shall within fifteen days from the date on which such motion was carried, refer the dispute to the State Government, which shall decide it, as far as possible, within forly-five days from the date on which it was received by It, and its decision shall be flnal.] COMMENTARY 1.A meeting called for consideration of no confidence motion cannot be adjourned. Presiding Officer has no such power. Dropadi Bai v. State of M.P., 1998 (2) Vidhi Bhaswar 11. 2. Adjournment of meeting summoned for expressing no con- fidence.- A meeting summoned for expressing no confidence cannot be adjourned for want of quorum as the quorum has not been prescribed. The presiding officerhas to only preside over the meeting but has no power to adjourn it. 1975 JLJ 500 Disting. Hargovind Johari v. Zila Panchayat, Morena, 1996 JLJ 231= 1996 MPLJ 409. 3. Opportunity not given to adduce evidence.-RespondentNo.2 did not providethe opportunity to.adduceevidenceto the petitioner to establish the points raised in the memoofreference. Further more, under S. 35(4),a dispute is liable to be decidedas for as possiblewithin 45 days fromthe date ofreceipt. Respondent NO.2was expectedto decidethe reference case itself within the period prescribed under law. Held, impugned order not sustainable and reference case is liable to be decidedafresh. Dinesh Sharma v. State of M.P., 2007(4) MPLJ 554. For detailed comments, see comments under section 40. 36. Disqualification for being office bearer ofPanchayat.-(1) No person shall be eligible to be an office-bearer of Panchayat who- (a) has, either before or after the commencement of this Act, been convicted:- \ Ii) of an offence under the Protection of Civil Rights Act, 1955 (No. 22 of 1955) or under any law in connection with the use, consumption or sale ofnarcotics or any law corresponding thereto in force in any part of the State, unless a period of five years or such lesser period as the State Government may allow in any particular case has 1 ~ub. for the words "one~year"by M.P. Act 18 of 2007 (25-5-200'(']. 2 Sub. for the words "one-year" by M.P. Act 18 of 2007 [25-5-20071. 3' Ins. by MP 2 of 199717~1-19971. ,\ . .33 8.35 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)69 this Zila (2) Unless otherwise provided In this Act the office bearers of Zila panchayat shall hold office for five years from the date of the first meetIng and no longer: tion Provided that notwithstanding anything contained in this subsectIon an office bearer of Zila Panchayat shall cease to hold office forthwith on his ceasing to be-- . lied ices' .1 I- [a) a voter of the Gram Panchayat area within the district; 1[(b) xxx) rats T (3) If before the expiry of the period prescribed in sub-section (2) the Zila Panchayat Is not newly constItuted, It shall stand dissolved on the expiry of the said period and the provisions of Sectiol. 87 shall apply thereto for a period not exceeding six months within which the Zila Panchayat shall be reconstituted in accordance with the provisions of this Act. the :ted the ,ses ng- COMMENTARY :s a Co-option.-[l] An Office bearer ceasing to be a voter on delimitation :ate cannotbe co-optedunder 8.29(2). Anjana Mulkalwar v. State of M.P., 1998 :ra- (2)JLJ 328. ent his ual the [2]An office bearer ceasing to be a voter on delimitation cannot remain an office bearer also:sinc~ he ~o 19:QgerremailJ-s ?voter. Anjang}lfJ!Jko,Lwar iI.StateofM.P.,1998(2)JLJ328:' , "" .. .,. . . 35. No confidence motion agalnst President and Vice-President.-[ I) On a motion ofno confidence being passed by Zila Panchayat by resoiution passed by a majority of not less than three fourth of the 2[elected members] present and votIng and such majority is more than two-third of the total number of 3[elected members] constituting the Zila Panchayat for the tIme being the President or the Vice-President against. whom such motion is passed shall cease to hold "office .... _... forthwith. . Ing the tng 13, (5) (2) Notwithstanding anything contained in this Act or the rules made thereunder, President or Vice-President shall not preside over a meeting in which a motion of no-confidence is discussed against him. Such meeting shall be convened in such a manner as may be prescribed and shall be presided over by.an officerof the Government as the prescribed authority may appoint. 'The president or Vice-President as the case ma:~be, shall have right to speak at or otherwise to _!<JkeparLin_the_proceeding oLthe meeting.' (3) No-confidence motion shall not He against the president or nd oed •te De Ha ler ed as .vIce.president within a perlod.of:I 1 Olllitted by M.P. 26 of 1994 130.5.941. 2 Subs. by M.P. 32 of 1994[7.10.94]. 3 Subs. by M.P. 32 of 1994[7.10.94]. . . • • PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 8:33 (PA)68 1[Providedfurther that the officesof President reserved under this section shall be reserved by the prescribed :1uthority in the Zila Panchayat within the state by rotation In the prescrtbed manner). Provided also tha t the Zila Panchayat where there Is no reservation of sea,. for the Scheduled Castes or as the case may be, the Scheduled Tribes shall be excluded from drawing of lots for reservation of offices of Presidents for such castes, or such Tribes, as the case may be; , ' I ' (ii)Twenty fiveper cent of seats ofPresident of the Zila Panchayats in the State shall be reserved for other backward classes. , 2[(3) Subject to the provisions of sub-sections (2) and (4) the President and the Vlce-President ofthe Zila Panchayat shall be elected by and from amongst the elected members thereof.] (4) If the President of a Zila Panchayat does not belong to the Scheduled Castes or the Scheduled Tribes or other Backward Classes the Vice-President shall be elected from amongst the members belong- ing to such Castes or Tribes or Classes. (5) If a President or a Vice-President of Zila Panchayat becomes a member of either House of Parliament or a member of the State LegislativeAssembly or a Chairman or Vice-Chairman of a Co- operative Society, he shall be deemed to have vacated his officeas President or Vice-President, as the case may be, with effect from the date "f hi8,---, " becoming such member or Chairman or Vlce-Chairman and a casual vacancy shall be deemed to have occurred In such office for the purpose of Section 38. 33. Publication of names of members, President and VicePresident.-The names of members, President and Vice-President of Zila Panchayat shall be published by the prescribed authority In such manner as may be prescribed. 3[33-A. Correction of clerical error or omission.-Notwithstandlng anything contained in the Act or the rules made thereunder. the clerical error or omission apparent on the face of the record regarding reservation of seats under sub-sections (4). (5) and (6) of Section 13, sub-section (2). (3) and (4) of Section 17. sub-sections (3). (4) and (5) of Section 23, sub-section (2) of Section 25. sub:sections (3). (4) and (5) of Section 30 and sub- section (2) of Section 32. may be corrected by the prescribed authortty with the' prtor permission of the State Government or the officerauthortsed by It for the purpose. at any time before the commencement of ejection proceedings.], 34. First meeting and term of office.-(l) First meeting of the Zila Panchayat shall be held within 30 days qfthe date ofpublication under Section 33. Such meeting shall be convened by the prescrtbed authortty and provisions of Section 44 regarding meeting. as far as may be. shall apply in respect of the said meeting. I Subs. by M.P.Act 5 of 1999 15-4-1999J. 2 Subs. by M.P. 26 of 1994 (30.5.941. 3 Ins.byMP20f 1997 [7-1-1997j. , . " , I, 8.32 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)67 he election of Zila Panchayat shall be reserved for women and seats may be allotted by the prescribed authority by drawing lots and by rotation :ach 19 different constituencies in a Zila Panchayat in the prescribed manner. fly n- l[x x xl -f tl. 2[(6) The constituencies which have no population of Scheduled Castes, Scheduled Tribes or Other Backward Classes shall be excluded for allotment of seats reserved for Scheduled Castes or Scheduled Tribes or Other Backward Classes, as the case may be.] f,:• 1i i l .] ,, ve he he COMMENTARY lot Constitutional validity of provisions as to reservations of con~ stituencies.-Election for posts of Panch, Sarpanch, members of Janpad Panchayats. Provision as t.f) reservations of constituencies for -Scheduled Castes/Scheduled Trib2s and special provisions for election of not less than one-third of the total number of seats reserved for women candidates belonging to Scheduled Castes/Scheduled Tribes and Other Backward Classes not ultra vires ofArts. 14, 15 and 16 ofthe Constitution. Ramlal v. State of M.P., 1998 (1) MPLJ 192. he 'at t! IT, J ,ts on 3[31. x x xl 'at "32. Electl"n of ,President' and Vlc'e-Presiden t.,,4[(nAiler every' ''. c, , Election of Panchayats the State Election commission shall immediately hold the Elections of President and Vice President of Zila Panchayats, in such manner as may be prescribed.] he :es Its (2) (I)Offices of President shall be reserved for- an on '": (a) the Scheduled Castes; and (b) the Scheduled Tribes, , on and the number of offices of President reserved for the Scheduled Castes and Scheduled Tribes 5[including the number of offices of ler nd' of tts , President reserVed for the Scneditlea Tribes In th,,'SChedu1ed' Areas under Chapter XN-A] shall bear as nearly as may be, the same proportion to the total number of such offices in the, State as the population of Scheduled Castes or. as the case-may be, the Scheduled or, .' '"'flibes bears to the total population of the State: Q/ ,',Pr~ded that not less thari°[half] of the total number of offices of ed or, Je. for President of Zila Panchayat shall be reserVed for women: Proviso omitted by M.P.Act 5 0(199915-4-1999]. ,.1 Ins. by M.P.Act 5 of 1999 [5.4-19991. , ler ~6in;tted by-M~P.26 ~(1994 i30:S~94J. ,ct Sub-sec. (1) subs. by M.P. Act 20 of 2005. w.e.I. 30-8-2005. fOTthe followmg:- ."(1) The prescrlbed authority shall, as soon as may be. after the election of members. call a meeting of the elected members of Zila Panchayat for electing president and Vice-President." Ins. by MP 43 of 1997 [5-12-1997J. " Sub. for the word "one-third" by M.P. Act 18 of 2007 [25-5+2007]. ,, ------ f ~""". i , (PA)66 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI" 1993 8.30 , 30. Division of District into constituencies.-(l) Subject to the provisions of sub-section (2), the State Government shall by notification divide a district into such number of constituencies that each constituency shall have as far as practicable. a population of fifty thousand and every constituency shall be a single member constituency: Provided that where the population of a District is less than five lacs. it shall be divided into not less than ten constituencies and the population of each constituency shall as far as practicable. be the same in each constituency: Provided further that the total number of constituencies shall not exceed thirty five. (2) The ratio between the population of the territorial area of the Zila Panchayat and number of constituencies in such Zila Panchayat area, shall. as far as practicable. be the same throughout the State. (3) (i)Seats shall be reserved for(a) the Scheduled Castes; and (b) the Scheduled Tribes. , ,. in everyZlla Panchayat and the number ofseats so reserved shall bear. as nearly as may be. the same proportion to the total number of seats to be filled by,direct election in theZlla Panchayat as the population ofthe Scheduled Castes or the Scheduled Tribes In that zlii Panchayat area bears to the total population of that area and such seats may be allotted by the prescribed authority l[x x x) to different constituencies in that Zlla Panchayat in the prescribed manner: ~ ! 2[Providedthat for the purpose of computing the number of seats to be reserved for Scheduled TrIbes in the Zlla Panchayat. other than the Scheduled Areas forming part of that district. the total population of the Scheduled Areas falllng within that district and the population of Scheduled Tribes therein shall be excluded.) • (il)In the Zlla Panchayat where fifty per cent or less 'than filly-percent seats have been reserved both for Scheduled Castes and Scheduled TrIbes, twenty five per cent seats of the total number of seats shall be reserved for other Backward Classes and such seats shall be allotted by rotation to different constituencies by the Collector, in the prescribed manner. --------14i Not less than 3[hall] of the total number of seats so reserved shall be reserved, for women belonging to the Scheduled Castes or, the Scheduled TrIbes or other Backward' Classes, as the case may be. (5)Not less than 4[hall] (Includingthe number ofseats reserved for women belonging to Scheduled Castes. Scheduled TrIbes and other Backward Classes) of the total number of seats to be filled by direct 1 Words "by rotation" omitted by M.P.Act 5 of 1999 (5-4-1999]. 2 Added by MP 43 of 199715-12-1997J. 3 Sub. for the word ~one-third" by M.P. Act 18 of 2007 (25-5-2007). 4, Sub. for the word "one-third" by M.P. Act 18 of 2007 (25-5-20071. S,29 PANCI/AY.'''' \./ AVAM GRAM SWARAJ ADHI., 1993 (PA)65 :.28 !, I 29. Constitution of Zila Panchayat,-(l) Every ZiJa Panchayat shall consist of t1:e following:- I[no. (I) Memb•.: elected' from the constituencies; 1[(11)x x x] be, lder' uch (III) All men Ii"'rs of Lok Sabha representing parliamentary constituen •.i<', which wr.olly or partly from part of dlstrtct; .hall .1ich (Iv) All MemiJ'Ts of Rajya Sabha returned from the State of Madhya Pradesh whose name appears In the list of voters of a Gram Panchayat area within the...dis(rict; (v) Allmembers of the State Legislative &sembly returned from the dlstrtct: ~,, " Provided that the members of Lok babha and Members of State Legislative Assembly whose constituenCies wholly .falls within the urban area shall not be the members of the e of LO IS the alai 'HT ZiJa Panchayat. 2[Provided further that a member of the State Legislative Assembly or a member ofParliament who is a member of the Zila Panchayat. may nominate his representative, who possesses. such qualifications -as may be prescribed in this behalf, to attend the meeting of the ZiJa Panchayat If he is unable to do so owing to absence, illness or any other cause.] ried ;>eal r or The ,ed. I 3((vi),All Chatr-Pl'rsons of-Janpad Panchayats f,nhe disfrlct:'~. '.. - Provided that Chair-person ofJanpad Panchayat who Is a member under this clause shall not be a member of the committees under Section 47.1 mce not ugh d to ic.er 002 4[(2) and (3)x x x] 5[(4) If any constituency falls to elect a member, fresh election proceedings shall be commenced In such constituency within six months to fill the seat: . . Provided that further proceedings of election of President and Vice-President of.Zila .Panchayat- shall not-.be stayed. pending the lent the election of a member in accordance with this sub-section: fari . Provided further that if such constituency again falls to elect a member, fresh election proceedings shall not be commenced in such constituency unless the State Election Commission is satisfied that there is likelihood of such constituency electing a member,] :ub- the the ave idl. ~to the Rules:~ The State Governmenthas made.the followingrules in exercise ofthe powers conferred by this section. These Rules shall be found under Rules given separately, ' -::J?ANCHAYAT .MEMBERS-rNOMINA'I'IO},;-oF REPRESENTATNE) RULES, 1997" ~.G.. i Omitted by M.P. 26 of Ui94 -'30'.5:94). 2 Ins. byMP 20f 1997 [7-1-1997). 3 Ins. by MP 2 of 1997 [7-1-1997). 4 Sub-sections (2) and (3); Omittedby M.P. 26 of 1994130.5.94). 5 Subs. by M.P. 26 of '994 [30.5.941. . . PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 8.28 (PA)64 (iii) I[six months] from the date on which previous motion of no confidence was rejected. 2((4) If the President or the ViCe-President, as the case may be. desires to. challenge the validity of the motion carried out under sub-section (1). he shall. within ten days from the date on which such motion was carried, refer the dispute to the Commissioner, who shall decide It, as far as possible. within thirty days from the date on which it was received by him. and his decision shall be final.] COMMENTARY See detailed comments under SAO. 1. Issue of no-confidence motion notice.':The issue of notice of meeting of a 11,0 confidence motion 'must he issued by the Collector, who is the prescribed authority and not by the Chief Executive Officer of the Janpad Panchayat. But such a notice can be served by him. Mohanalal Marco v. Additional Commissioner, 2004 (4) MPLJ 461=2004 (4) MPHT 59. 2. Bias of Presiding Officer.-A no confidence motion was carried againstthe Vice-President ofJanpad Panchayat. It was set aside in appeal on the question of bias of Presiding Officer. Bias which was irregular. or contrary tolaw not reflected in conductingthe meeting ofno-confidence.The order declaring the motion ofno confidenceto be illegal orvitiated quashed. Molwnsingh v. Ratan Singh, 2003 0) MPLJ 589=2003 (2) JLJ 327. 3. Requirement.-[I] Ina meeting calledfordiscussing a no-confidence motion against Vice,President ofJanpad Panchayat, the petitioner did not -- ~ i t request the presiding officer for allowing him to speak in his defence, though he was present in the meeting. It cannot be said that he was not allowed to speak. The provisions ofsub-section (2) donot required the presiding officer to ask the petitioner to speak. Shivaji Rao Patil v. CollectorBalaghat, 2002 (4) MPLJ 240=2002 (3) MPHT 175. . . .- . [2J Application for bringing motion ofno confidenceagainst President ofJanpad Panchayat. The secretary did not mention the hour at which the application was received. Held it is not fata!' Ramprasad Mavai v. Had Singh Tomar, 2002 (2) JLJ 53=2001 (4) MPHT 364. 4. Prescribed Authority.-The members of Janpad Panchayat submitted a No Confidence Motion to the Add!. Collector who convened the meeting ofJanpad Panchayat and Petitioner challenged the legality ofthe order to convene meeting. Held that the Collector alone ought to have exercised the power under S. 28(2) of the Adhiniyam and not the Add!. Collector. The initiative taken by the Add!.Collectoris, therefore liable to be condemned as the one without authority oflaw and in violation ofthe mandatory provision ofS. 28(2) ofthe Adhiniyam. Ayodhya v. State of C.G... and Shankar Prasad v. State of C.G.,2006(2) CGLJ 247. 1 Sub. for the words "one~year" by M,P. Act 18 of 2007 [25~5-20071. 2 Ins. by MP 2 of 199717-1-19971. • 8.28 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., [993, (PA)63 27. First meeting and term of office.-(l) First meeting of the Janpad Panchayat shall be held within 30 days of the date of publication under Section 26. Such meeting shall be convened by prescribed ; authority and provisions of Section 44 regarding meeting, as far as may be, shall apply in respect ofthe sald meeting. (2) Unless otherwise provided in the Act the office bearers of Janpad Panchayat shall hold officefor fiveyears from the date of the first meeting and no longer: I[Provided that notwithstanding anything contained In lhls subsection an officebearer ofJanpad Panchayat shall cease to hold office . forthwith on his ceasing to be a voter ofa Gram Panchayat area within the Block]. (3) If before the expiry of the perIod prescribed in sub-section (2) the J anpad Panchayat is not newly constituted, it shall stand dissolved on the expiry ofthe said period and the provisions ofSection 87 shall apply thereto for a period not exceeding six months within which the Janpad Panchayat shall be reconstituted in accordance with the provisions of this Act. 28. No-confidence motion against President or Vice-President.-( 1) On a motion of no confidence being passed by Janpad Panchayat b~ resolution passed by a majority of not less than three fourth of th" [electedmembers] present and votinl:\and sU9chmajoxityc . is more than two-third of the total number of [elected members] . constituting the Janpad Panchayat for the time being; the President or the Vice-President against whom such resolution is passed shall cease to hold office forthwith. (2) Notwithstanding anythtng contained in this Act or the Rules made thereunder, a president or a vice-president shall not preside over a meeting in which amotion ofno-confidence is discussed against him. Such meeting shall be convened in such manner as may be prescribed and shall be presided over by an officer of the Government as the. . prescribed authorlijmay appotnt. The President or the vice-President; . as the case may be, shall have a right to speak at or otherwise to take part in the proceeding of the meeting. (3) No-confidence motloi,'shall not Ire against the PresIdent "r Vice-President within a period 0[- . ; (I) 4[twoand half year] from the date onwhich the President'.or Vice- President enter their respective oIflce; I (il) six months preceding the date on).vhich the term ofomce of .the Presidehtdr Vice-President, as the case may be, expires; 1 _ Subs ..by M.P. 26 of 1994 130.5.941. 2 Subs. by M.P. 32 of 1994-[7.10.94] for Ill(' wonl Mmember", 3 Subs. by M.P. 32 of 199417.10.941.for Ille \\'\)1"(1 Mmember". 4 Sub. for the words "one.year" by M,P. A<'l']-Hof.?9P7 (25-5-20071. , ; ,, (PAj62 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHl., 1993 8.26 I i, I I district. the tatal papulatian .ofthe Scheduled Areas falling within the district and the papulatian' .of.Scheduled,Tribes therein shauld be excluded:} '. I I , I, Pravided further that nat I~ss'than 1(halfl .ofthe tatal number .of .offices.ofPresident .ofJanpad Parichayat subject ta a minimum .ofone shall be reserved far wamen: I 'Pravidedalsathat the.officesunder this sectian shallbereserved J by the prescribed ,autharity in the Janpad, Panchayat within the , "distrlct by ratatian in the prescribed manner: ' ' . . . - . < Pravided alsa. that Janpad Panchayats where there is na reservatian .ofseats far the Scheduled'Castes .orScheduled TrIbes as the case, may be. shall be excluded far reserVatian .of.offices.ofPresident belanging ta'such castes .or.such \ribes. as the case may be. I (li)Where the tatal populatian .ofScheduled Castes and Scheduled Tribes in the district is less than fifty per cent twenty five percent .of seats .ofPresident .ofJanpad'Panchayats within the district shall be reserved for ather backward classes. , 2(3) Subject ta the praviSianS .of sub-sectians (2)' and (4) the .President and Vice-President .ofthe Janpad Panchayat shall be elected by arid fram amangst the electeQmembyrs th"I"('al.] (4) If the Pre~;d~ntaf Jal1pad Panchayal does not belollg to tlie •.,. Scheduled Castes. Scheduled Tribes .orathlT n"ckward Classes the Vice-President shall be elected from amongstthc members belanging to -such castes or,tribes or classes. (5)If a President or Vice-Prestdent ofJanpad Panchayat became a member of either hause .of Parliament .or a member .of the State Legislative Assembly .ora Chalrman .orVice-Chairman .ofCa- .operative Saciety. he shall be deemed ta have vacated his .officeas President .or Vice-President as the case may be. with effect fram the date .ofhis becaming such member .orChairman orVice-Chalrman. and a casual. vacancy shall be deemed ta have .occurred in such .officefar the purpases '.ofsectian 38., , il COMMENTARY . . 'j Procedure,- Applicationfiledunder sub-section(5).Respondentpray, ing to adduce evidence.Argumentsheard onthe application.Maio petition cannot be decidedwithout decidingfirst the application under sub-sectian .(5). Manjula v: Collector Jhabua, 1997 (I) MPWN 24. 26. Publication of names of members, ,President and, VicePresident.-The names .ofthe members. President-and Vice-President .ofJanpad Panchayat shall be published by the prescribed autharlty in such manner as may be prescribed. 1 Sub. for the word "one- third". by M.P. Ad 18 of 2007 (25'-5-2007J. -2 Subs. by M.P. 26 of 199413.0.5.941. •• , .' ., 8,25 • PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)61 (5) Not less than 1(half], (including the number of seats reserved for women belonging to the Scheduled Castes and Scheduled Tribes and other Backward Classes) of the total number of seats'to be filled by direct election in every Janpad Panchayat shall be reserved for women and such seats may be allotted b~ the prescribed authority by drawing lots and by rotation to different [constituencies] in a..Janpad Panchayat in the prescribed manner. 3(xx x] 4((6) The constituencies which have no population of Scheduled Castes, Scheduled Tribes or Other Backward Classes shall be excluded for allotment of seats reserved for Scheduled Castes or Scheduled Tribes or Other Backward Classes, as the case may be.] COMMENTARY Non-reservation of seats for Scheduled Castes and Scheduled Tribes cannot be challenged at a late stage. It would cause public inconvenience and burden to public exchequer if granted at such a stage. Sunckr Adivasi v. State of M.P., 1995 (I) MPWN 71. . 5(24. x x.x] 25. Election of President and Vice-President of Janpad Panchayat. ~61(l)'Afferevei-ydectfon ofPanchayatstlyeState' ElectiOn- - . , 'ommission shall immediately hold the elections of President and Vice (,esident of Janpad Panchayats, in such manner as may be prescribed.j I, . I I (2)(I) Officeof President ofJ anpad Panchayat shall be reserve,1 for(a) the Scheduled Castes; and (b) the Scheduled Tribes, and the number of offices of President reserved for the Scheduled Castes and the Scheduled Tribes in the district shall bear as nearly as may be, the same proJ:JOrtiontothetotalnumt;erof such o£ficesin.t he disirict as the population of the Scheduled Casies or the Schedu led Tribes, as the case may be, bears to the total popuiation ofthe disiIict: 7(Provided that for the purpose of computing the number of offices of President ofJanpad Panchayat to be reserved for Scheduled Tribes in the district other than the Scheduled Areas forming part of thai \ Sub. for the word "one-third" by M.P. Act 18 of 2007 [25~5-20071. Subs. by M.P. 26 of 191)4 130.5.94). \ ~••..••Provls,?o_m1tt~d~" .- "'..by,.M.P.Act~"I'-' 9.of~~~1999J5-,4-1e:991.~~- -.-~.-._ Ins. by M.P.Act 5 of 199915-4-1999), Omitted by M,P, 26 of 1994 130,5.94] . . ' . -Subs. by M.P.'Act 20 'of2005. w.e:!. 30-8-2005 for the followtng:- "(1) The Prescribed Authority shall. as soon as may be, after the election octhe members call a meeting of the elected members of the Janpad Panchayat for electing a Presiden l and a Vice-President," Ins. by MP 43 of 199715-12-1997). (PA)60 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 8.23 , constituency has a.s far as practicable a population of five thousand and every constituency shall be a single member constituency: Provided that where the population of a Block Is less than fifty thousand It shall be divided Into not less than ten constituencies and the population of each constituency shall as far as practicable be the same In each constituency: Provided further that the total number of constituencies In a block shall not exceed twenty-five. (2) The ratio between the population of the territorial area of a Janpad Panchayat and the number of constituencies In such Janpad Panchayat shall,: so far as practicable, be the same throughout the ,I I State. (3) (i)Seats shall be reserved for- (a) the Scheduled Castes:, and (bl the Scheduled Tribes, I in every Janpad Panchayat and the number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election In that J anpad Panchayat as the population of the Scheduled Castes Inthat Janpad Panchayat area or the Scheduled. Tribes in that Janpad Panchayat area bears to thet()tal population of that area and such seats' m~y bc allotted by the prescribed authority I(x x xl to different 2[constltuencles] in that J anpad Panchayat In the prescribed manner: ""f,. , 3[Provlded that for the purpose of computing the number of seats to be reserved for Scheduled Tribes In the Janpad Panchayat, other than the Scheduled Areas forming part ofthat Janpad Panchayat area, the total population of the Scheduled Areas falling within that Janpad Panchayat and the population of Scheduled Tribes therein shall be excluded.] ..... ~- 'ii I I i (iI)-Inthe Janpad Panchayat where fifty per cent or less than fifty" per cent seats have been reserved both for the Scheduled Castes and Scheduled Tribes twenty fiveper cent seats ofthe total number of seats shall be reserved for other Backward Classes and such seats shall be allotted by rotation to different constituencies by the Collector In the prescrtbed manner. (4)Not less than 4(half]of the total number of seats reserved under sub-section (3)shall bereserved forwomen belooglng to the Scheduled Castes or, the Scheduled Tribes, or other Backward Classes, as thc case maybe. , 1 Omitted by M.P.Act 5 of 1999 [5-4-19991. 2 Subs. by M.P.26of1994[30.5.94]. 3 Added byMP43of199715-12-1997]. 4 Sub. for the word "one-third" by M.P. Act 18 of 2007 (25-5-2007J. i, " • . - • 8.23 PANCHAYAT RAJ AVAM GRAM SWARAJAIJHI., 1998 (PA)59 22. Composition of Janpad Panchayat.-(l). Every Janpad Panchayat shall consist of the following:- (I) Members elected from the constituerlcles; 1[(ll) x x xl (!Il) Allmembers ofthe State LegislativeAssembly returned from the constituencies which wholly or partly fall within the block: Provided that a member ofthe State LegislativeAssembly whose constituency wholly falls \vlthln an urban area shall not be a member of the said Janpad Panchayat: . I, e . ~Provlded further that a Memberof the State legislative Assembly who Is a member of the Janpad Panchayat. may nominate his representative, who possesses such qualifications as may be prescnbed In this behalf, to attend the meeting of the Janpad Panchayat if he is unable to do so owing to absence, illness. or any.other cause.} 3[(iv) One-fifth of the Sarpanchas in the terrltonal area of the \ Janpad Panchayat by rotation for a period ofone year as the prescribed authority may r1etermlneby drawing lots: . Provided that a Sarpanch who is a member under this clause for one term shall not be ellgible to become a member for another term: Providedfurther that a Sarpanch who is member under this clause shall not be a member of the committees under Section 47.]. 4[(2), (3), (4),(5)and (6)x x xl . 5[(7) If any constituency fails to eiect a member. fresh election proceedings shall be commenced in such constituency within six 'months to fillthe seat: . Provided that further proceedings of election of President and Vice-President of Janpad Panchayat shall not be stayed pending the 'election of a member in accordance with this sub-section: Provided further that If any constituency again falls to elecl a member fresh election proceedings shall. not be commenced In such. constituency unless the State Election Commission is satisfied that Ihere is llkellhood of the constituency electing a member]. . Rules:- TheState Governmenthas madethe followingrules in exercise ofthe powersconferredby this sectlon.These Rules shalfbe found under Rules givenseparately. , ~. "PANCHAYAT MEMBERS (NOMINATION OFREPRESENTATNE) RULES, 1997" Dr to ~s. ,, 23. Division of block Into constl(uencles.-(l) Subject to the .provlslonsof.sub~section. (2),.the State Government shall by notification divide a block Into such number of constituencies that each n. 2. 1 Omitted by M.P~26 of 1994130.5.941. 2 Ins. by MP 2 of 1997 [7-1-19971. 3 Ins. by MP 2 of 1997 [7-1-1997]. 4 Sub-sections (2) to (6). omitted by M.P.26 of 199413~.5.941. 5 Subs: by M.P. 26 of 1994 130.5.941. ~:. PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 S.21-A (PA)58 16. Rules:- The State Govern~ent h~s made the followingrule~ in exercise ofthe powers conferred on It by thIS sectI~n.These'Rules shall be found under Rules given separately. :. . . "GRAM PANCHAYAT KE SARPANCH TATHA UP-SARPANCH JANPAD PANCHAYAT TATHA ZILLA pANCHAYAT KE PRESIDENT TATVA VIC;E-PRESIDENT KE VIRUDH AVISHWAS PRASTAV NIYAM, 1994," 1121-A. Recalling of office bearers of Gram Panchayat._(l) Every Sm-panch .of a Gram Panchayat shall forthwith be deemed to have . vacate,:!his officeIfhe Is recalled through a secret ballot by a majority of more than half of the total number of the memgers Constituting the Gram Sabha within the Gram Panchayat In accordance with the procedure, as may be prescribed: . I / Provided that no such process of recall shall be Initiated unless a notice is signed by not less than one-third of the total number of members of the Gram Sabha and presented to the prescribed authority: Provided further that no such process shall be lnitiated._ (i) within a period of two and a half years froro the date on which such Sarpanch elected at the General Election enters his office: or '(Ii) If hillf of the period of tenure of the Sarpanch elected in a bye-election has not expired. (2)Every panch of a Gram panchayat shall forthwith be deemed to have vacated his office If he is recalled through a seCret ballot by a majority ofmore than half ofthe total number of me~bers of the Gram Sabha constituting the ward from whIch the Panch ISelected. , i I, (3)The provisions of sub-section (I) shall apply mutatis mutandis in relation to recall of a Panch, (4) If such Sarpanch or panch. as the ca~e may be. desires to I challenge the validity of recalling him under the foregOing sub- sections he shall within seven days from the date on whiCh he is deemed to have vacated the office. refer dispute to the Collector who shall decide it. as far as possible. wlthln.30 days from the date on which It was received,byhim. and his deciSIOnshall be final.) COMMENTARY . Recalling of Sarpanch.-Signature ofm~mbers signing the prayer for recalling ofSarpanch .by.wempersofGr~mSa?ha cannot he enquired into since no procedurefor the same is presc~J;>e.deIther py th~ Act or the rules. Prima facie satisfac.tipllof Jhe Sub-DIVIsIOnalOfficer IS sine qua non. Hariyare v. State of M.P., 2004 (3) MPLJ 255. SeeAlso:Santosh Kumar Ahirwarv. State a(M.P., 2009(3) MPLJ 442. ---------------------~--- I Ins. by M.P.Act 5 of 1999 (5-4-1999J. 8.21 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)57 cannot be moved in the following circumstances::- (1) within one year of the Sarpanch or Up-Sarpanch, as the case may be, assuming office; , (2) before six months of the expiry of their term Of offi~e. Suppose the term of office of a Sarpanch or Up,Sarpanch, as the case may be, is going to expire on 20th December, nO no- confidence motion would lie against any of them between 21st of June and 21 of December; and (3) In a case where a no no-confidence motion was presented against a Sarpanch or Up-Sarpanch. as the case may be, and it was rejected, meaning thereby that members did not vote in its favour in sufficient number, then from the date of rejection of such motion, no new motion of no-confidence shall be allowed to be presented till the expiry of one year j [4) Where the previous motion of no-confidence was set aside on the gro~nd that it was carried in an illegal man-ner, it does not amount to rejection of no-confidence motion. Therefore, the bar under sub-section (3) against bringing another motion within one year does not apply to such a situation. Kandhilal Patel u. State of M.P., 1999 (2) JLJ 109. ( [5] Sub-section (3Hii)-Bar against motion-Applicability.-Where motion of no-confidence against Sarpanch was moved before six months from the expiry of the term of Gram Panchayat but the Sarpanch got stay from the Collector by filing a revision. The Collector ultimately rejected the revision and then the meeting for discussing the motion was called.' But it was within six months of the expiry of the term. The SarPanch cannoHake henefit of this provision. Raja I'llm Patel u. State of M.P., 2002 (5) MPLJ 513=2002 (1) JLJ 41. , • j 15. Writ petition.-[I] Application for moving no confidence motion , filed. No interference can be madl' under writ jurisdiction. The petitioner after passing of resolution can seek remedy under sub- section (4). Kushma Sharma u. State of M.P., 1998 (1) MPWN 92. [2] Availability of an alternative remedy is not always an absolute bar for maintainability of writ petition. When the impugned order is illegal, a writ petition is maintainable. Prabhu Dayal Patel u. State of M.P., 2003 (5) MPHT 502=2003 (2) MPLJ 29=2003 (2)JLJ 182 (DB). [3] Direct writ petition-not justified .-Direct writ petition not main- tainable when alternative remedy of revision under Rule 5 of M.P. Panchayat (Appeal and Revision) Rules, 1995 is available. Ramesh Soni u. State of M.P., 2008 (1) MPLJ 207. [4] Direct writ petition why justified,.-Despite-alternative remedy a writ petition may be preferred directly :- (i) where the Court or the Tribunal lacks i1lherentjurisdiction; or (ii) when a writ is for enforcement of fundamental rights; or (iii) there is a violation of principal of l1/?tural just~ce ; or -. ." - - '~- < - ~ -... -. • • - (iv) where vires of the Act is in question. The mandatory extent of the provision could b~ relaxed only if it could be shown that no prejudice was caused to the party complaining. Ramesh Soni u. State afM.P., 2008 (1) MPLJ 207. • -"'"---,.-,-=.••.......... --~ ..-~ PANCHAYAT RAJ AVAM GRAM SWARAJADHI., 1993 8.21 (PAl56 12. Appeal and revision.-[l] Where a motion ofno confidrnce is passed or failed, no appeal or revision lies against it, since it is neit~er al). order nor any proceeding in any pending case. 1998 (2) JLJ 267 Relied on. Ramnath Kaushik v. State of M.P., 1999 (1) JLJ 146. [2] An order passed by the Collector in the matter of resolutlon of no confidence is final. No appeal lies against his order. But revision by Com-missioner is competent. Kandhilql Patel v. State of M.P., 1999 (2) JLJ 109. [3]No appeal lies against resolution ofno confidence motion. A reference . under sub-section (4) can be made to Collector. Kandhilal Patel v. State of M.P., 1999 (2) JLJ 109. [4J Reference to Collector is not an appeal. The word 'dispute' as used therein mean dispute on legal as well as factual aspect. The Collector may record even evidence on factual aspect, Kandhilal Patel v. State. of M.P., 1999 (2) JLJ 109. [5] Resolution f<;>ror against passed in a meeting called for considering motion ofno~confidence.AppeaI or revision against not competent-Expression "carried out"- Appeal and Revision Rules of 1995, Rr. 3 and 5.-The provision made in sub-section (4) provides for reference of a dispute to the Collector for his decision where the Sarpanch or the Up-Sarpanch, as the case may be, desires to challenge the validity of the motion carried out under sub-section (1). The expression "carried out" " employed in the said sub-section can only mean the consequence' provided' in sub-section (1) which clearly indicates thatit is only against a motion of no confidence passed by the requisite majority that such a dispute under sub-section (4) can be raised by the person against whom the motion has been passed. It is clear that an appeal under rule 3 of the Appeal and Revision Rules of1995 was not maintainable against a no-confidence motion whether carried or failed and the Additional Collector therefore had no jurisdiction to entertain the same. A perusal of rule 5 shows that a revision is maintainable as to the legality or propriety of any order passed by the subordinate authority or to the regularity of proceedings before such authority. A no-confidence cannot beclassifiedeither as an order or as a proceeding. :'\0 specific power of Revision has been granted in rule 5 against I II, a no confidl 'Ilcemotion. The no-confidence motion, not being any proceeding in a cas£>,i:::i not amenable to the jurisdiction of an authority in exercise of the power of revision granted by rule 5. 1998 (1) MPLJ 427 ReI. Ramnath Kaushik v. State of M.P., 1999 (2) MPLJ 67. . \I . [6J Sub-section (4)-Revision.-Where order is passed by the Collector under sub-section (4), revision against such an qrder is maintainable before the Revisional Authority. Sadan Kumar v. Stdte of M.P., 2002 (5) MPLJ 28=2003 (2) JLJ 54=2002 (2)MPHT 257. But no appeal lies against such an order. See Premlata Jaiswal v. State of M.P., 2002 (5) MPLJ 522. 13. Improper setting aside of no-confidence motion.- The Addi- tional Collector set aside the no confidence motion passed without notice being served on the respondents. Order set aside. 'Hemraj v. Smt. Sumran, 2005 (1) MPHT 10 NOC. 14. Bar against another motion and its applicability.-Vide sub- section (3), a no-confidence motion against the Sarpanch or Up- Sarpanch \ '; 'I •• • •• , ! 8.21 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHl., 1993 II (PA)55 of M.P., 1997 (2) MPLJ 175. ,e ,t. ~r of 'y 6. Ie te nt 10. Dispute- No confidence motion- Filing of dispute under subsection (4) before Collectdr.-[l] Extension of time- Although there is no express provision in sub-section (4) to extend time for filing dispute before the Collector after expiry of7 days, there is no express bar againstgi'anting such an extension of time. High Court granted extension and allowed the writ petitioner to file dispute before the collector within seven days. Jagdish Prasad Soni v; State of M.P., 1999 (1) MPLJ SN 19. '[2]Sub-section (4) has been added by MP Act 2 of 1997 which has come into force 7-1-1997 hence, where no confidence motion has been passed after 7-1-1997, dispute in its respect should be referred to Collector. Kamla v. Sub.DivisionaIOfficer, 1997 (II) MPWN 153. m 1e 1 ry !~ at ce 1, ot d. ;S ,h L if hs n- [31 The Collector has no inherent power to extend time for presenting of a dispute under sub-section (4). But under the provisions of the Limitation Act, 1963, he can admit a dispute if he is satisfied that the applicant had sufficient reasons for not presenting the same within the time prescribed or that the applicant was prevented for sufficient reasons from filing the dispute within seven days of its passing by the Gram Panchayat. [4] Threat or undue pressure ..It requires an oral evidence to establish that any kind of oral threat was executed to a particular Panch. Such , fact could have been proved only in a dispute referable under S.21(4) of the Act. Santosh Kumar Singh v. State of M.P., 2008 (2) MPLJ 205 = 2008(1) MPHT383. lO.A.' Expression of intention not proved.-A voter was required to m of ,e cast his vote in favour ofno confidence motion by putting the symbol ofright mark and against it by putting a symbol of cross mark (x). One disputed ballot paper is liable to reject for the reason that ,everse mark of right m th 'symbol was put on the blank back side. Held, it will not convey any intention in specific of the voter and the same cannot be treated as a expression of intention within the meaning of election laws. Such ballot paper rightly rejected. Sunita Patel v. Collector, 2008 (3) MPLJ 248 = 2008(1) MPHT 302 = 2008(2) JLJ 26 = AIR 2008 (NOC) 802 MP. ia, to te lO- la 10-B. Nirvachan Niyam, 1995 are applicable.-M.P. Nirvachan Niyam, 1995 are quite exhaustive and they would also cover the meetIngs, 'of no confidence \vith regard to various things for which no provision has been made in the M.P. Panchayat (Gram Panchayat Ke Sarpanch Tatha Up-Sarpanch .. , .Avishwas Prastav) Niyam, 1994. l1lustratively, Chap. x 1S ~m 'she . of Nirvachan Niyam provides for countiqg of votes for which no specific .provision made in Avishwas Prastav Niyam and although counting is 'ill required to be made even in the meeting for,no confidence. 8unita Patel v. .__~FE![,~QQ.l:!J~tM!,J,.J .~1.!L::_2.908(1)MPHT302 = 2008(2) JLJ 26 = ,ot LO- AI ••.2008 (NOC) 802 MP. ed h. 11. -Right of- reply and leading of evidence.- Where there was a ~ 'dispute as to date of service of notice of no-confidence motion, it could not be decided without leading evidence. The party aggrieved should be given right of reply and opportunity to lead evidence. Kandhilal Patel v. State of M.P., 1999 (2) JLJ 109. ' ch to ,n- ,te (PA)54 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI.,'1993 8.21 \ Sarpanch or Up-Sarpanch as the case may be, the incumbent of the office shall cease to hold office forthwith, that is to say, with immediate effect. " That prescription is not a limitation on the power of the District Collector to pass appropriate interi"m order when a reference envisaged ufs. 21(4) of the Adhiniyam is made by the Sarpanch or Up-Sarpanch as the case may be for his decision. Smt. Basanti Chandra v.Nand Ram, 2006(1) CGLJ 486. [4] Effect of non-compliance of second part of sub-rule (3) of rule 3.-The motion of no-confidence is to be moved and passed by the requisite majority is the substance of the provisions of this section and the relevant rules. A mere non-compliance of second part of sub-rule (3)would not in every case invalidate the action unless the Collector while deciding the dispute under sub. section (4) or the High Courtin,exercise orits superVisory jurisdiction under Art.227 of the Constitution comes to the conclusion that such non-compliance has caused serious prejudice to the affected office bearer or has otherwise resulted in failure of justice. 1998 (2) MPLJ 661, 1997 (2) JLJ 397 Approved, 1998 (1) JLJ 124 & 1998 (1) JLJ 399 held not contrary, 1997 (l) Vidhi Bhaswar held right, 1971 JLJ 286 (DB) Overruled. Bhulin Dewangan v. State of M.P., 2000 (4) MPHT 69=2000 (2) JLJ 253 : : (FB). [5] Sub-section (1) further says that the Sarpanch or Up-Sarpanch .against whom. such amotion is passed shall cease to hold officeforthwith . 8-A. Validity of No-confidence Motion.-ln accordance ofS.21(3), if the previous motion of no-confidence was rejected, then within six months .another no. confidence motion could not be considered. In this case, no-confidence motion was not taken into consideration by the members ofthe Gram Panchayat, for which, the date was fixed by the S.D.O. and that order of S.D.a. was quashed by the Collector exerciSIng revisional power on the ground that seven days' time was not granted to the members ofthe Gram Panchayat for consideration of no-confidence motion in accordance with Rule 3(3) of the M.P. Panchayat (Gram Panchayat Ke Sarpanch Tatha Up-Sarpanch, Janpad Panchayat Tatha Zila Panchayat KePresident Tatha Vice President Ke Virudh Avishwas Prastau) Niyam, 1994. When the date of convening the meeting in accordance with Rules for consideration of noconfidence motion was held not to be proper, then subsequently, the SDO has fixed the date of another meeting vide fresh order, and the said order is in accordance with law and in accordance with Rules of 1994. Munni Devi v. State of M.P., 2013(2) MPWN 15. 9. Prescribed Authority iudng date of meeting beyond 15 daysMotion of no-confidence passed cannot be held invalid.-Although the date of meeting fixed by the Prescribed Authority was beyond 15 days from the date of receipt of notice still, the motion of no-confidence passed cannot be held invalid for the reason that the will of members in relation to the noconfidence motion cannot be defeated On account of inaction or delayed .action of the Prescribed Authority. But it was observed that in case th6 meeting is not held within 15 days, the members have the right to approach the High Court for its compliance and this judgment should not be held to have authorised the Prescribed Authority to fIx date of meeting for consideration of no-confidence motion beyond 15 days. Dhumadandhin v.State :Ii. I ,I .' .- '. :lI , 8.21 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)53 ! , , [2] Sub-rule (4) of Rule 5 of M.P. Panchayat (Gram Panchayat ke Sarpanch tatha Up-Sarpanch .... Ke Virudh Avishwas Prastav) Niyam, 1994 laid down the procedure as follows :- 2) a ; n. "(4) After the motion is moved the mover shall first speak on the motion Ldre I :h ,e :h 19 and thereafter other members may, if they so desire, speak on the motion". [31See also: (a) Comments under Rule 5 of aforesaid Rules; (b) Santosh Kumar Singh v. State ofM.P., 2008 (2) MPLJ 205 =2008(1) MPHT383;(c)Sukhanandan Patel• v.State ofM.P., 2003(1) MPLJ220 =2003(2) n 'e til JLJ74; (d) Nagsai v. State of M.P., AIR 1998 MP 81. ty at nt 7. Total number of panchas.-Total number of panchas constituting the Gram Panchayat for the time being would mean that number ofpanch as which at the relevant time are members of Gram Panchayat. In order to find out this number, one should include the Sarpanch and the Up-Sarpanch also. Rambhilash Patel v. State of M.P., 2003 (1) MPLJ 238. 8. Passing of no confidence motion.-[l] Meeting called for considering a no confidence motion adjourned in absence of Presiding Officer. Motion passed in the adjoumed meeting. Motion is valid. Benefit under sub-section , (3)(ii;) not available. Mahaveer Saket v. Collector, Rewa, 1998 (2) JLJ 113. , [2] Cessation, of office~, .Ge.s,satioQ,oCoffice"by the"SarpaQch'"aftecc" .... passing of no confidence motion against him is automatic. No stay can be graQted in this respect.Kaushalya v.Additional Collector, 1998 (I) MPWN 236. ,elW .d ld ;e. 53 idI '0- vil 3 [3J Effect of no-confidence resolution.-In the instant case the Sarpanch was suspended and the Up-Sarpanch was appointed as Prabhari Sarpanch. No confidence motion moved against Prabhari Sarpanch. Motion not moved against petitioner as Up-Sarpanch, therefore, no-confidence motion was not passed against petitiolll'r as Up-Sarpanch. Jagdish Prasad Soni v. State of M.P., 1999 MPLJ NOC 8. ,n- he ,Ie Ire ,nt lce ,er 13A]Not validly passed.-DisllUtea ballot paper was liable to reject hence no confidence motion was not validly passed for want of requisite strength i.e. 3/4th. Sunita Patel v. (',,/lector, 2008 (3) MPLJ 248 = 2008(1) MPHT 302 = 2008(2) JLJ 26 = AlH 2008 (NOC) 802 MP. ed ng 15 he 13B] Resolution was passed by the majority - No confidence motion cannot be declared as null & void.-No prejudice has been pointed out by the SarpanchlResp. NO.1 in any manner and the resolution was passed by overwhelming majority, Le. 16 out of 21 in favour of the no IT clll1fidente, rootion' and said officet wascoIi\petent to preside over the ,peeting.,The Resp. No. 1 has also notraised this objection of incompetence of the Presiding Officer during the no confidence motion. The Collector's oroer is, set .aside and the resolution passed in meeting be .given full effect to. 2003(5) MPHT 502 (DB), Relied on. Ghanshyam Yadav v. Rameshwar Sahu, 2007(1) MPHT 86 (C.G.). , it 'as Lch, lhe, ihe [3C] No Stay.-It is true that in terms of the Sub-Section (1) of Section 21 of Adhiniyam once 'No Confidence Motion' is carried out against a I PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 8.21 (PA)52 6, Principle of natural justice to be followcd.-[l] Sub-secrion (2) further speaks that a Sarpanch or Up-Sarpanch shall not preside over a meeting in which a motion of no-confidence is to be discussed against him. Generally a meeting of Gram Panchayat is presided over by a Sarpanch aRd in his absence, the Up- Sarpanch presides such a meeting. In a case where the motion of no-confidence is to be discussed against either the Sarpanch or the Up-Sarpanch, leaving aside the one against whom the motion is to be discussed, whether the other person namely, the Sarpanch or Up-Sarpanch against whom there is no motion of no-confidence, can preside the meeting or not. The answer would be 'N0'. A meeting called for considering a motion of no-confidence is a special meeting and sub-section (2) says that it will be convened in such manner as may be prescribed, i.e. as per rules and shall be presided over by an officer ofthe Government as the prescribed authority may appoint. Looking to this provision, the normal procedure would not apply and the meeting shall be presided over by an officer ofthe Government only and ]wither by a Sarpanch or Up-Sarpanch. l2] Since the passing of no-confidence motion results in adverse consequence of the Sarpanch or Up-Sarpanch vacating the elected office, the law incorporates the principle of natural justice that the office bearer concerned . should have an opportunity to participate in the motion and to speak and take part in the proceedings so as to regain' the confidence .of the House. Bhulin Dewangan v. State of M.P., 2000 (4) MPHT 69=2000 (2) JLJ 253 -- ..-. (FB). [3JProcedure.- The Rules framed under the Act lay down a time bound procedure for ensuring proper conduct of the proceedings of the no-confidence motion. As passing of no-confidence motion entails serious civil consequences against the concerned office bearer sub-rule (3) of Rule 3 prescribes a time limit for calling a fill'pting for consideration of no-confidence motion and sending of notice in advance of the meeting to all the members ofthe Panchayat. The expression Used in the first part of the rule for fixing the date, time and place for the meeting is 'which shall not be more than 15 days from the date ofreceipt oftlw said notice'. The legislative intent behind the rule clearly appears to be that when a notice of no-confidence motion duly signed by the requisite not less than lI3rd of the total number of elected members of the concerned Panchayat is received, the prescribed authority shall not be allowed to sit idle over it for an unreasonable long period of time. it is enjoined on him that he shall within not more than 15 days from the receipt of the notice by him, call a meeting for considering the no confidence motion. Bhulin Dewangan v. State of M.P., 2000 (4) MPHT 69=2000 (2) JLJ 253 (FB). , [4] Where no confidence motion was passed by requisite majority, it matters little whether opportunity to debate and discuss the motion was provided or not. Mahesh Prasad v. State of M.P., 1997 (2) JLJ 397 .. 6-A. Right to speak.-[ll Under Sub-section (2) of S.21, the Sarpanch or the Up-Sarpanch, as the case may be, shall have a right to speak in the nleeting of no-confidence motion and have a right to take part in the proceedings ofthe meeting. • II ,. I i l . 8,21 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., I993 (PA)51 I { presence, if he so desires, in the meeting to be held on such vital issue of passing of no-confidence motion. Bhulin Dewangan v. State of M.P., 2000 (-:I)MPIIT 69=2000 (2) JLJ 253 (FB). [3] Meaning of the word 'dispatch',-The legislature has designedly used the expression 'the notice of such. meeting specifying date, time and place thereof shall be caused to be dispatched by him through the Secretary' of the Panchayat concerned. The use of the word 'dispatch' appears to be deliberate and it cannot be read as 'receipt' of the notices by members of the Panchayat. The law intends that the notice of meeting should be sent to the members concerned seven days in advance of the meeting to enable them to participate in the motion of no-confidence. The rule does not convey any intention 'that the motion of no-confidence should be taken up only after each and every member of the Panchayat has been actually served with the notice. Use of word 'dispatch' in the rule is clearly with a view that merely on non-service of notice of meeting on one or few members, the consideration of ~otion of no-.confidence should not be frustrated, as in any case the " 7, , r If , s t I ), , J' I "passing. of"itdepends onexistence. ofthe requisite majority. I, f' " The word 'dispatch' should be assigned both a literal and legal meaning otherwise it is open to wicked abuse in the hands of concerned authority who may act in collusion with any oftheelected members. It is not merely sending or giving of notice of meeting in the manner best suited to the liking of the Secretary o(thePanchayat. The word is analogous to the word 'issue'. Bhulin D"I('(I/l~(mv, Stale of M.P" 200Q (4) MPIIT 69=2000 (2) JLJ 253 .' ,, ~ 1 ) . (FB}, . ~ il [4} Efff'l"t (\t non.service of notice of'meeting on one or few memb«-"."s.-It' tilt.". Illotion IS validly passed by the requisite majority, mere non-service of notice of meeting on one or more members would not render the passing of no-confidence motion invalid. The latter part of sub-rule (3) of rule' 3 uses the word 'shall be caused' indicating clearly that the rule is mandatory and requires due compliance. Bhulin Dewangan v, State ofM.P" 2000 (4) MPIIT 69=2000 (2) JLJ 253 (FE), [5] Mode of service of notice,-As far as mode of service of notice, the Panchayat (Method of ServIce of notice and document) -Rules, 1995 may be referred. The different modes prescribed by rule 3 for service of notice include 'giving or tendering the notice or document to the person concerned'. In the absence of notice, giving or tendering the same to some adult member - or servant of the family, sending the same by post under certificate of posting, If the member resides beyond the jurisdiction of Pane hay at and his address is known, by sending the same to hiIii by registered post acknowledgment due, The Rules also prescribe the substituted mode of service. In the light of these rules prescribing various modi's of service of notice, the word 'dispatch' would'mean giving or sending for transmission the notice in the manner prescribed in the Rules of 1995 so as to reasonably ensure its service, I£the dispatch of notices is not in the mpde prescribed for its service, there would be no proper compliance of the requirement of sub-rule (3) of Rule 3 of the Rules of 1994. Bhulin Dewangan v. State of M.P., 2000 (4) MPIIT 69=2000 (2) JLJ 253 (FB), :I I,I j e I j e e f e o e s I' L I ,f d s h e "• ,-.- i, PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 8.21 (PA)50, \ provision with regard to toss of coin in case of equality of votes is already deleted by an amendment. SojiNayak v. State of M.P., 1999 (1) MPLJ 174= 1997 (2) JLJ 179. [7] Panchayat consisted of 11 members. Motion of no confidence passed by all the eight members present in the meeting. Requisite majority obtained. Motion passed legally. 1975 MPW 116=1975 JLJ 386 ReI. Shree Bai v. State of M.P., 1999 MPLJ SN 28. [8JPanchayat consisted of 11 members. All were present at the meeting called for consideration of no confidence motion. 8 votes were cast in favour of the motion while 3 wer~ against. The Presiding officer treated the figure of 8 as sufficient for the resolution of no confidence to have been passed. But the figure 8 is less than 3/4th of 11 person who were present and the requirement of law is that such a motion should be passed by not less than 3/4th of the members present and voting. Hence it is held that the motion was not passed at the meeting. Deshraj v. Gram Panchayat, 1999 (1) MPLJ !,. 621. (91Where 19 panchas were present at a meeting called for consideration of no confidence motion, the motion can be held to have been passed if 15, and not 14, persons vote in favour of the resolution. Motion passed by 14 panchas is not valid. Kalawati Karayat v. State of M.P., 1998 (l) MPWN 154. See alsoShaiititam v.AnuvibhagiyaAdhikari, 1997 (1) MPWN 195. 5. Notice of meeting ofno_confidence"-[IJ It is necessary for passing ofa no-confidence motion that notice ofmeeting should be despatched before 7 clear days. Where no such notice was despatched, motion passed in such meeting shall not be valid. Shrinarayan Tiwari v. State of M.P., 1998 (1) JLJ 124. [IA] Admissibility of the Notice.- The notice was despatched on 22-8-2006 for the meeting to be held on 30-8-2006 before 7 clear days and as such, there is no :'..lfirmity in dispatch of notice. Pilaram Deewan v. State' ofC.G., 2007(2) C~LJ 280. [IB] Rejection of Notice • Beyond Jurisdiction.- The Prescribed Authority is not empowered to enquire into the correctness of the notice received by him under Rule -3 of Avishwas Prastav Niyam, 1994. The prescribed Authority is required to satisfy only about the ~dmissibility of the notice with reference to Section 21(3) of the Adhiniyam. However, the Prescribed Authority instead of satisfying itself gone to the extent so as to hold that no useful purpose will be served-in convening the meeting. The procedure adopted and the order passed by the Prescribed Authority so as to reject the notice received by him under Rb.le 3 of the Avishwas Prastav Niyam, 1994 is beyond his jurisdiction, therefore, cannot be sustained. Ravindra Singh v. State of M.P., 2007(3) MPHT 172. [2] Dispatch of notice of meeting.- The second part of sub-rule (3) of rule 3 mandates that the prescribed authority after fixing date, time and place of the meeting within the prescribed period not later than 15 days as laid down in the first part of the Rule, shall cause dispatch of notice of such meeting to every member of thePanchayat 7 days before the meeting. The said latter part of sub-rule (3) of Rule 3 is m"ndatory as intimation of date, time and place of meeting to e:very member is essential to ensure his • • 8.21 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PAJ49 n.or h~- be LIS ld as ,d as J~ er 'Y n or 'Y ,d Ql ,- of ,e. 'e Le ;0 ,e; )f Ir .e .e J. j. .e a a .r ee , o.e, number. It may be in a fraction also, e.g. 14.25, 7.5, 13.5 and so on. One should understand the requirement in such cases properly. Whenever there is a fraction, the next full number would be the right number of votes which shall be necessary for passing ofthe resolution,.in the example quoted above the requirement would be of 15, 8 and 14 votes. It is not possible to ignore the traction of a number. This requirement is only one limb of the provision. It is with regard to the members present and voting. [2) The second limb of the requirement is connec.ted with the total number ofpanch as by which a Gram Panchayat is constituted. This number wouldSupposebetherethat forarewhich20 panchaselectionselectedwere heldand andthe the.Grampanc"-asPanchayat.' were elected.lS. constituted by these 20 p~.n.as, inclading the Sarpaneh and Up-Sarpanch. Note that Sarpanch and Up-Sarpanch are also to be included in counting the number of panch as for this purpose. In this example the requirement is that the motion should be carried by more than two third of the total number of panchas. 2/3rd of 20 shall be 13.333 .. and more than this number would be 14 i.e. in a case where 2/3rd of a number consists of a fraction then, the next number would be the required number. Here again, the fraction of a number cannot be ignored. [3] Looking to the requirements of the minimum majority required, the conclusion is that such a number would be higher one out of the two as given in paras [1] and [2] above. If the result of para [11is the figure 15 and that ofpara [2lis H-then,I5 would be.the number required and in case the result ofpara IIlis 20 while that ofpara'[2] is 24 then, the required number\\"ould Ir be 24. [41Section 21, however, requires that a valid motion of no- confidence can be passed only on a motion mooted by prescribed one-third of total number of elected members :ind passed by majority of not less than 3/4th of the Panchas present and voting and such majority is more than 2/3rd oftotal number of panchas. Bhulin Dewangan v. State of M.P., 2000 (4) MPHT 69=2000 (2) JLJ 253 (FB) . t5] The subject matter of this section is passing of a no- confidence motion against Sarpanch or Up-Sarpanch. These office bearers hold their office by election. The law requires that if they are mode to vacate their offices on loss of coufidence of the other elected members, there should be a requisite majority for passing the resolution i.e. not less than 3/4th of the Panchas present and voting and the resolution should be carried by voting of more than 2/3rd of the total number of panchas constituting the panchayat.Bhulin Dewangan v. State ofM.P:, 2000 (4) MPHT 69=2000 (2) JLJ 253 (FB). . s J!ll A.lllP,ti9\'.ofnO,w!!fi!!!'-I1',',agai.\!~t)?.!!lJ'W!chPJ.Up;Sarpil_llch fa.nnol be said to ha'.~been passed by toss of coin in the event where the votes fur and against the'motion being eqllSl. As a ".latter of fact a motion of no I e I " -00 '"I 'confidence should-be- passed by-a -majority of three-fourth of the panchas present and voting and further such majority should be more than two-third ofthe total number ofpanch as constituting the GramPanchayat. Therefore, in any case, a motion cannot be said to have. passed. where the number of votes for the motion and against the motion is found .to be equal. The g ..t- ~ t I ,0..1:;\~ I I. I I (PA)48 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 8.21 I 3. Election of Sarpanch direct bnt no-confidence motion indirect- Section not arbitrary on this account.-[l] The Act provides for election of a Sarpanch of a Gram Panchayat directly by the members ofthe' Gram Sabha while a no confidence motion against such a Sarpanch can be passed by members of Gram Panchayat only under this section. On this ground it was contended that the provisions ofthis section are arbitrary and are violative of Art. 14 of the Constitution. The Court held that so far as providing the method of election and motion of no-confidence being passed is concerned, it is for the State Legislature to enact the law as this areas has been left open:hy sub-clause (5) of Art.243C and the reasons appear to be that since the Gram Sabha is in the lowest in the hierarchy ofthe three tier system, the Parliament has thought it proper that the State Legislature may legislate on this aspect looking to the geographical and physical condition of the area. The State Legislature in its wisdom thought it proper that for removal of the Sarpanch by vote of no-confidence shall be the proper by indirect method ofbeing voted out by the elected Panchas. After all elected panchas are also the voice of the whole Gram Sabha because it is Gram Sabha who has directly elected them. Therefore, when motion of no- confldence is passed against such sarpanch, it will be an indirect lack of confidence by Gram Sabha as all Panchas are elected representative of the Gram Sabha. It is a different matter that the Legislature could have provided one more check by seeking ratification of all the members of the Gram Sabhabeing smaller body, but that is nojustification forthe Court to .: .' delve into the matter. There is no justification to strike down a law on the ground that Legislature could have provided a better method ofremoval of Sarpauch. It is within the domain of the State Legislature to make provision for the election ofSarpanch and Up-Sarpanch and also for theirremovaf. In the method provided, there is no arbitrariness violating of Article 14 of the Constitution of India. AIR 1993 SC 2042 ReI. Jagdishprasad Bhunjwa v. State of M.P., AIR 1997 MP 184=1997 (1) MPLJ 512=1996 JLJ 335 (DB). -[2] It is a different matter that the legislature could have provided one. more check by seeking ratification of all the members of the Gram Sabha being smaller body, but that is no justification for the Court to delve into a realm by the Legislature because the Legislature is the supreme body sofar as enacting oflaws is concerned and Court has onlylimited role to adjudicate that whether the Legislature has overstepped its limit or not or the provisions are ultra vires of Constitution or not. Therefore, there is no . justification to strike down a law on the ground that legislature could have provided a better method ofremoval ofSarpanch. JagdishprasadBhunjwa v. State of M.P., AIR 1997 MP 184=1997 (1) MPLJ 512=1996 JLJ 335 (DB). 4. Requirements of section 21.-[1] Sub-section (1) starts with the expression "on a motion of no-confidence being passed by the Gram Panchayat" and then it states the requirements of such a motion being passed. The first requirement is that the motion should be passed hy a majority which is not less than three- fourth of the panchas present and voting. The emphasis is on the expression "not less than three-fourth". It is not always necessary that the three-fourth numbet shall be a full • 8.21 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)47 1[(4) If the Sarpanch or the Upsarpanch, as the case may be. desires to challenge the validity of the motion carried out under sub-section (1). he shall, withIn seven days from the date on which such motion was carried, refer the dispute to the Collector who shall decide It, as far as possIble, within thirty days from the date on which it was received by him, and his decision shall be final.] I I COMMENTARY SYNOPSIS i. Objects. 2. Scope of Ss. 21 and 21-A. Both provisionsoperate in different spheres. 3. Election of Sarpanch direct but no-confidence motion indirectSection not arbitrary on this account. 4. Requirements of section 21. 5. Notice of meeting of no-confidence. 6. Principle of natural justice to be followed. 6-A. Right to speak. 7.. Total number of panchas. 8. Passing of no-confidence motion. S-A .• Validity of Na-confidence Motion. 9. Prescribed authOl:ity.fixing date of ,meeting beyond 15_j.\;JY-~.Mo:- -- -tion of ilri:c6nfidence 'pa'ssed cannot be'heldTrivana. 10. Dispute-No confidence motion-Filing of dispu!L' under sub- section (4) before Collector. I' \ lO-A. Expression of intention not proved. IO-B. Nirvachan Niyam, 1995are applicable. II. Right of reply and leadingof evidence. 12. Appeal and revision .. 13. Improper setting aside of no-confidence motion. 14. Bar against another motion and its applicability. 15. Writ petition.----- ---- ----- 16. Rules. 1. Objects.- The provisions under SS.21 and 40 are quite distinct regarding objects and consequences. Mahesh Prasad v. State arM.p., 1997 (2) JLJ 397. 2. Scope ofSs. 21 and 21-A. Both provisions operate in different "p.!>eres.- Section 21 provides for motion ofno-confidence against Sarpanch I ..,;Up-Sarpanch and Section 21-A apply in case of recall of office bearers of \-;l'am Panchriy-at:Th-e authorities .who take action under these provisions are differe;;t:tUnder S.21,.the 'parichas'takeaction~by passing a resoitition due to lack of confidence of the 'panchas' in the Sarpanch. Under S.21-A, the members ofthe Gram Sabha take action to recall the office bearers of Gram I'anchayat to rerall the Sarpanch by secret ballot. Gita Bai v. Sushila Bai, 2002 (2) MI'I..) ~::::=~()()~1~I.JlA 423. Ins. by Mil 2 of 1997 [7-1-19971. (PA)46 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 8.21 (3) If before the expiry of the period mentioned in sub-section (2), the Gram Panchayat is not reconstituted, it shall stand dissoived on the expiry of the said pertod and the provisions of section 87 shall apply thereto for a pertod not exceeding six months within which the Gram Panchayat shall be reconstituted in accordance with the provisions of this Act. COMMENTARY 8s.20, 21 and 38(1). Motion of no confidence moved within one year of entering office by the 8arpanch elected in a bye-election .Not competent.- A person who was elected Sarpanch in a bye- election assumes officeon the date of first meeting held after his election. Therefore, no no-confidence motion against him can be moved withiILone yeliT from the date on which the Sarpanch or Up-Sarpanch enter their office.The first meeting in his case would be that which is held after his election and not that which was held originally when the officebearers assumed officewhen the term of the Panchayat began. The first meeting mentioned in 8.20, is for duration ofthe term ofpanehayat and forthe original Sarpanch assuming office.It does not apply to a Sarpanch who is eleeled in a bye-eleelion. Rajaram Patel v. State of M.P., 2002 (5) MPW 513=2002 (2) JW 41. --- -. -- ------------ 21. Nocconfidence motion agarnstSarpanch and Up-Sarpanch:- (1)On a motion of no-confidence being passed by the Gram Panchayat by a resolution passed by majority of not less than three fourth of the panchas present and voting and such majortty is more than two third of the total number of Panchas constituting the Gram Panchayat for the time being, the Sarpanch or Up-Sarpanch against whom such motion is passed, shall cease to hold officeforthwith. (2) Notwithstanding anything contained in this Act or the rules made thereunder a Sarpanch or an l:!p-Sarpanch shall not preside over a meeting in which a motion ofno-confidence is discussed against him. Such meeting shall be convened in such manner as may be prescribed and shall be presided over by an officer of the Government as the Prescrtbed Authortty may appoint. The Sarpanch or the Up-Sarpanch, as the case may be, shall have a right to Speak at, or otherwise to-take part in, the proceeding of the meeting.. (3) No-confidence motion shall not lie against the Sarpanch or UpSarpanch within a period 0[-' (I) I[twoand half year] from the date on which the Sarpanch or Up-Sarpancb enter their respective office; (il) six months preceding the date on which the term of officeof the Sarpanch or Up-Sarpanch, as the case may be, expires; (ili) 2[sixmonths] from the date on which previous motion of no- confidence was rejected. 1 Sup. for the words Mone_yearM by M.P. Act 18 or 2007 [25-5-2007]. 2 Sub. for the words "one-year" by M.P. Act 18 of 2007 [25-5-2007J. 8.20 PANCHAYAT RAJ AVAM GRAM SWARAJ ADEll., 1993 (PA)45 \ .i in Section 20.1 1[(2) If the outgoing Sarpanch 2[or President of Gram Nirman, Samlti] falls or refuses to hand over any pa:p'ersor property in his possession to the newly elected Sarpanch [or President of Gram Nirman Samiti], the prescribed authority may by order. In writing direct the outgoing Sarpanch 4[orPresident ofGram Nirman Samiti] to hand over forthwith all papers and property In his possession as Sarpanch 5[orPresident of Gram Nirman Samiti] to the new Sarpanch 6[orPresident of Gram Nirman Samltil, Up- Sarpanch or Secretary of the Gram Panchayat. as the case may be.] ... (3)If an out-going Sarpanch 7[orPresident of Gram Nirman Samlti] fails to complywith the direction under sub-section (2), the prescribed authority shall proceed against him in accordance with Section 92 and shall take necessary steps to launch prosecution under Section 98. (4) A Sarpanch Blor President of Gram Nirman Samitil against whom an action has been taken under sub- section (3) and who has been found guilty, shall be disqualified to be member or an officebearer of panchayat for a period of sixyears from the date on which he has been found guilty: Provided that such disqualification may be removed or the period thereof may be reduced by the State Government for reasons to be recorded in writing. 9[19. Notification of :election.-Evety ElectiOn'of Sarpanch,.-Up-.Sarpanch and Panchas shall be published by the prescribed authority in such manner as may be _prescribed.] , 20. First meeting and term of office.-(l) First meeting of the Gram Panchayat shall be held within 30 days of the date of the publication under Section 19. Such meeting shall be convened by the prescribed authority and the provisions of section 44 regarding meeting as far as may be shall applyin respect ofthe said meeting. (2) The officebearers of the Gram Panchayat shall hold officefor Jiveyears from the date of the first meeting and no longer: Provided that notwithstanding anything contained in this subsection every person becoming an officebearer of a Gram Panchayat shall cease to hold officeforthwith- lO[(i)on his ceasing to be a voter ofthe Gram Panchayat area; or] (ii) On his becoming a member of State legislative Assembly or member of either House of Parliament. I Subs. by M.P. 26 of 1994 [30.5.941. 2 Ins..hy.M.P.,Act 16.of2004. w.e.LJ-l.2005. ;J ~(ns.by"M.P;Act Itrof2004, w.eJ. 1-1:2005. , 4 Ins. by M.P. Act 16 of 2004. w.e.f. 1-1-2005. 5 Ins. by M.P. Act 16 of 2004, w.e.f. 1-1-2005. 6 Ins. by M.P. Act 16 of 2004. w.e.r. 1-1-2005. 7 Ins. by M.P. Act 16 of 2004. w.c.r. 1-1-2005. 8 Ins. by M.P. Act 16 of 2004. w.e.f. I-I-200!). 9 Subs. by M.P. 26 of 1994 (30.5.94). to Subs. by M.P. 26 of 1994 (30.5.94). (PA)44 PANCHAYAT RAJ AvAM GRAM SWARAJ ADHI., 1993 S. 18 belonging to Scheduled Castes/Scheduled Tribes and Other Backward Classes not ultra vires ofArts. 14, 15 and 16 ofthe Constitution. Ramlal v. State of M.P., 1998 (l) MPLJ 192. ' . I-A. Abandonment of Government service.-During service a Government servant cannot contest election either for the post ofPanch or Scu'panch. Petitioner was intentionally absent from the service and was holding the office ofSarpanch as elected Sarpanch for a period of5 years, it indicates that he has relinquished the employment. PannalalThakur v. State of M.P., 2008 (3) MPLJ 635. 2. Election of Gram Panchayat. Five persons included in elec- toral rolls, not permitted to vote. Effect.- Where one petitioner won by 9 votes and the 9ther by 36 votes, even if the five persons who were not allowed to vote, if allowed, would have voted against the petitioner, the result of the election would not have been materially affected. Election therefore not set aside. P,!nbai v. Imratsingh, AIR 1995 MP 254. 3. New election ofSarpanch invalid.- Where a no confidence motion passed against a Sarpanch was declared to be invalid, another person elected in bye-election as Sarpanch has no right to such seat because such seat never became vacant. Deshraj Singh u. Gram Panchayal, Tilabujurg, 1998 (2) JLJ 94. 4. Appointmertt' of Panchayat Karmi.- Where selection' was made._ irithout issuing any advertisemerit, the paI1-chayatkarmi fs nofselected-bY:a valid resolution. Kashiprasad Lodhi v.State ofM.P., 1997 (I) MPWN 156. 5. Person disqualified.-For election to the post ofSarpanch ofa Gram Panchayat, a candidate who was holding the post ofPresident, Jila Sahkari .Sangh Maryadit, on the date ofelection is disqualied from being elected and in the instant case from the conduct of the candidate it was quite apparent that he had not submitted his resignation to that post, hence he is disqualified for being elected as a Sarpanch under sub-section (1)(iii). Krishnanand Gnutam v. State of M.P., 2002 (2) MPLJ 4=2002 (2) JLJ 212. 6. 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. "PANCHAYAT (UPSARPANCH, PRESIDENT AND VICE PRESIDENT) NIRVACHAN NIYAM, 1995" 18. Handing over charge by outgoing Sarpanch l[or President of Gram Nirman Samitil.-2[(I) The newly elected Sarpanch 3[or President of Gram Ninnan Samiti] shall be deemed to have assumed the charge of the office with effect from the date of first meeting as provided 1 -Ins. by M.P. Act 16 of 2004. w.e.f. 1-1~2005. 2 Subs. by M.P. 26 of 1994130.5.941. '3 tns"by 'M.P.Act 16of 2004, w.e.f. 1-1-2005 . ,. \ • S.17 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)43 total population of the Scheduled Areas falling within that block and the population of Scheduled Trihes therein shall be exclude>,..] (it)Where the total population ofScheduled Castes and Scheduled Tribes in the Block is less than fifty percent, twenty five percent of seats of Sarpanchas of Gram Panchayats within the Block sh'!11be reserved for other Backward Classes. (3l Notless than l[haif]of the total number of seats of Sarpanchas within the block shall be reserved for women. (4) The seats reserved under this section shall be allotted by the prescribed authority in the Gram Panchayat within the block by rotation in the prescribed manner: 21Providedthat the Gram Panchayat, which has no population of Scheduled Castes or Scheduled Tribes or other Backward Classes. shall be excluded for 81!0l11tent 0[ seat reserved for Scheduled Castes, Scheduled T'-;"es or other Backward Classes. as the case may be:] 31(5)Afterevery election of Panchayats the State Election Commission shall immediately hold the elections of Up-sarpanch of Gram Panchayats, in such manner as may be prescribed.] (6) If the Sarpanch of th~ Gram P?"dlayat does not belong to Scheduled Castes. or Scheduled Tribes or other Backward Classes the Up-Sarpanch shall be elected from amongst the Panchas belonging to such.. castes or tribes. or,backward c-lasses. -----------"--_.-------- (7) If the Sarpanch or the Up-Sarpanch becomes the member of either House of Parliament or a member of the State Legislative Assembly or Chairman or Vice-Chainnan of a Co-operative Society he shall be de.emedto have vacated his office as Sarpanch or Up- Sarpanch. as the case may be, with effectfrom the date ofbecoming such member or Chairman or Vice-Chairman and a casual vacancy shall be deemed to have occurred in such officefor the purpose of Section 38. (8) Notwithstanding anything contained in this section the Sarpanch shall be deemed to be a panch of Gram..l.'''J:lsol!<tyatJ9Lthe purpose "filiis ACt. COMMENTARY 1.-Constitutional validity of provisions as to reservations of constituencies.-Election for posts ofPanch, Sarpanch, members of Janpad Panchayats. Provision as to reservations of..constituencies for Scheduled Castes/ScheduledTribesand specialprovisionsforelectionofnot less than one- third of the total number of seats reserved for women candidates I Sub. for the word "one~third"by "M.P. Act 18 of 2007125-5-2007]. - . . 2 Ins. byMP39011995115.12.95i. ", 3 .S.qb-sec. (5)subs. by.M.P. Act.20 of 2005, w.e.f. 30-8~2d05.Before substitution. il was as under:- .'(5)The PrescIibed Authority shall. ;.I.':' soon as may be after every election call a meeting of the elected Panchas and Sarpanch for the purpose of election of Up-Sarpanch and subject to the provisions of sub- section (7) the Gram Panchayal shall. in the meeting. so called elect from amongst its elected members an Up- } Sarpanch." -- -- ~-_.'------ -- -- S. 14 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)42 , one-third of the total number of seats reserved for women candidates belongingto Scheduled Castes/ScheduledTribesand Other Backward Classes not ultra vires ofArts. 14, 15 and 16 ofthe Constitution. Ra.mlal v. State of M.P., 1998 (1) MPLJ 192_ Trasnitory arrangement -Election ofSarpanch in first meeting.Elected panchas in the first meeting of the Gram Panchayat elect the Sm'panchfrom amongst themselves whoshall discharge all the functions of Sarpanch. This is a transitory arrangement till a fresh proceedingforfilling the post of Sarpanch is undertaken_ This is a stop gap arrangement and transitory provision.Ramvati v. Sta.te ofM.P. ,2011(3) MPLJ 579 =2011(5) MPHTI05. 14. Qualification to vote and to be a candidate.-(I) Every person whose name is included in the list of voters of a village shall be qualified to vote all1w clcction ofan officebearer of a panchayat within whose area the village is comprised. (2) Every such person unless disqualified under this Act or any other law for the time being in force shall be qualified to be 1[elected] as office-bearer of a Panchayat. 15. Prohibition of simultaneous membership.-No p~rson .shall be eligible for seeking election as an officebearer of a Panchayat from: more than one ward or constituency as the case may be. 2[16. x x xl 17. Election of Sarpanch and Up-Sarpanch. -(I) In every Gram Panchayat there shall be a Sarpanch and an Up-Sarpanch. A person who- (i) is qualified to be elected as panch: (ii) is i101 a member of either House of Parliament or member of -Slate Legislative-Assembly: and (iii) is not Chairman or Vice-Chairman of Co-operative Society: shall be elected as a Sarpanch. subject to provisions of sub- sections (2). (3) and (4), by persons whose names are included in the list of voters of the Gram Panchayat area in such manner as may be prescribed. (2) (i) Such number of seats of Sarpanchas of Gram Panchayats shall be reserved for Scheduled Castes and, Scheduled Tribes in the Gram Panchayat within the block which be~s the same proportion to the total number of Sarpanchas in the block as the proportion of the Scheduled Castes and Scheduled Tribes in the block bears to the total population of the block: 3[Provided that for the purpose of computing the number of Sarpanch of Gram Panchayat to be reserved for Scheduled Tribes in the block. other than the Scheduled Areas forming part of that block. the 1 Subs. by M.P. 26 of 1994 J30.5.941. 2 Omitted by M.P. 26 of 1994130.5.941. 3 .Added by MP43 of 1997 [5-12-19971. -'", , ' S, 13 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)41 the Act.] 11(3)xxx) , (4)(i)Seats shall be reserved in every Gram Panchayat for- (a) the Scheduled Castes, and (b) the Scheduled Tribes and tne number of seats so reserved shall bear, as nearly as may be the same proportion to the total number of seats to be filled by direct election In that Gram Panchayat as the population of the Scheduled Castes , or of the Scheduled Tribes in that Gram Panchayat area bears to the total population of that area and such seats shall be allotted by the prescribed authority 2(x x x] to different wards in that Gram Panchayat, in the prescribed manner. (ii) Ina Gram Panchayat where fifty percent or less than fifty percent seats have been reserved both for the Scheduled Castes and Scheduled Tribes, twenty fivepercent seats ofthe total number ofseats shall be reserved for other Backward Classes and such seats shall be allotted by rotation to different wards in that Gram Panchayat by the Collector in the prescribed manner. (5)Not less than 3(haif]ofthe total number ofseats reserved under sub-section (4)shall be reserved forwomenbelongingto the Scheduled Castes or, as the case may be, the Scheduled Tribes or other Backward Classes. . (6)Not less than 4[half]including the,number of seats reserved for women belonging to the Scheduled Castes, the Scheduled Tribes and other Backward Classes of the total number of seats to be filled by direct lelection in every Gram Panchayat shall be reserved for women and such seats may.be allotted by the prescribed authority by drawing of lots and by rotation to different wards in a Gram Panchayat in the prescribed manner. 5(xx x) ... ' .6((7) The wards which have no popuiation of Scheduled Castes, Scheduled Tribes or Other Backward Classes shall be excluded for allotment of seats reserved for Scheduled Castes or Scheduled Tribes or Other Backward Classes as the case may be.j COMMENTARY Constitutional validity of provisions as to reservations of con~ stituencies.-Electian for posts of Panch,Sarpanch, members of Janpad Pa:Q~hayats. _Pr<.)Vi~sion~s..t9 reservatipns oLconstituencies for Scheduled ..Castes/Scheduled'Tribesand specialjJravisiahsforelectionofnot less than .'~"'"'~'~ .-...~."'~- .••.-~.. -.- •. •.••"" •• G.__ •• ) ."..•.• ~"'-"'-""'-;-'.'.'''' .•''. ~'~' " - ,# • _ 1 Omitted by M.P. 26 of 1994 130.5.941. , .2 Words."by rotation"-omttted by M.P,Act 5 of 1999 (5-4. 1999J. 3 Sub. for the word Mone-third"by M.P. Act 18 of 2007 (25-5-2007]. 4 Sub. for the word "one-third" by M.P. Act 18 of 2007 (25-5-2007J. 5 First proviso omitted by M.P.Act 5 of 1999 (5-4-19991 and second proviso omitted by M.P. 26 of 1994 [30.5.941. 6 Ins. by M.P.Act 5 of 1999 15-4-19991, i (PA)40 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 8.12 12. Division of Gram Panchayat into wards.-Each Gram Panchayat area shall be divided into not less than ten wards as htay be determined tly the Collector and each ward shall be a single member ward: Provided that where the population of Gram Panchayat area is" more than one thousand it shall be divided in to wards in such manner that the total number of wards shall not exceed twenty and the populati&n of each ward shall as far as practicable, be the same in each ward: Provided further that the ratio between the population of the Gram Panchayat area and the number of wards in such panchayat shall. so far as practicable, be the same throughout the block within which the Panchayat area falls. COMMENTARY Constitution of Gram Panchayat.-In the matter of constitution of Gram Panchayat with head quarter at a parti.cular place, the High Court shall not interfere with the decision ofthe State Government. See comments under 8.3. Rajdhar Singh v. State of M.P.• 1995 MPLJ 152 (DB). 13. Constitution 'of Gram Panchayat .. I[(I) Every Gram Panchayat shall consist of elected Panchas and a 8arpanch]. 2[(2) If any village or ward falls to elect a Sarpanch or "as the case may be, a Panch, fresh election proceedings shall be commenced to fill the seat in such village or as the case may be. such ward within six months: . Provided that pending the election of 8arpanch under this sub. section, elected panchas shall subject to the provisions of sub. section (2), (3) and (4) of Section 17, in the first meeting under section 20 elect a Sarpanch from amongst themselves who shall discharge all the functions of Sarpanch under the Act till a 8arpanch elected under this sub-section enters upon the office: Provided further that further proceedings for constituting the '. r;mt'Panchayafshall not be stayed pending the election of Panch in ;l{.'{'ordance with this sub-section: Provided also that if any village or ward again fails to elect a Sarpanch or as the case may be. a Panch, fresh election proceedings shall not be commenced in such village or 'as the case may be. in such ward unless the State Election Commission is satisfied that there is likelihood of the village or as the case may be, a ward electing a Sarpanch or a Panch; and in case the Commission decides not to hold fresh election of Sarpanch, the Sarpanch elected under the first proviso shall continue to discharge all the functions of Sarpanch under I Subs. by M.P. 26 of 1994 (30.5.941.' 2 Subs. by M.P. 26 of 1994 (30.5.94J. • • 8.11 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)39 10. Est"bllshment of Gram Panchayat. Janpad Panchayat and ZUa Panchayat.-(l) There shall be a G~am Panchayat for every village specified as a village for the purposes of this Act under Section 3. (2) The Governor may by notification, divide a district into blocks. The notification shall specify the name of every such block, its headquarters and the area comprised therein. For every block there shall be a Janpad Panchayat which shall be known by the name of the block. (3) There shall be a Zila Panchayat for every district: l[Provided that every Municipal Corporation, Municipal Council or Nagar Panchayat constituted under the relevant law for the time being in force shall form a separate administrative unit for the area within . Its jurisdiction.] . 11. Incorporation of Panchayat. -Every Gram Panchayat. Janpad Panchayat and Zila Panchayat shall be body corporate by the name specified, there for in the order under Section 3 for village or notification under Section 10 for Janpad Panchayat and Zila Panchayat as the case may be, having perpetual succession and a common seal and shall by the said name, sue and be sued and shall subject to the provisions of this Act and the rules made thereunder, have power to acquire, hold or transfer property movable or immovable, to enter into contracts and to do all other things necessary for the purpose of this Act. COMMENTi}RY On behalf of the Panchayat the Sarpanch cannot sue and file an appeal independently.-Under S.11 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 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, 1999jJrovides that ~ executive power of Gram 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 of the Panchayat. Held, therefore we are ofview that Gram Panchayat is 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 any person to sue of behalf ofthe Panchayat, the Sarpanch cannot sue and appeal ind cpendently. Gram Panchayat, Bamrol v. Jagdish Singh Rq.wat, 2008 (3) MPLJ 127 ~ ~.;;:;.2QQ!!J1),-MP.!I1':!.;!g:.20Jl~.~2.~W".1Q2~DB. Gram Panchayat is a body corporate.-Under section 11 of the Act, there ,can.be no tr'1ce of doubt that Gram Panchayat is a body corporate. Sagar Machhua Sahakari Samiti, Seoni v. Chief Executive Officer, Janpad Panchayat, Seoni & Anr., 2008 (2) MPLJ 194 ~ AIR 2008 (NOe) 1388 ~ 2008(1) JLJ 329 ~ 2008(1) MPHT 254 [DB]. 1 Subs. by M.P.26 of 1994 [30.5.941. (PA)38 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHl., 1993 S.7.L 7-L. Control over Government employees.-(l) The Gram Sabha shall have the power to withhold salary, sanction leave, Inspect and supervise the work of a Government employee whose area Qfjurisdiction lies within the limits of Gram Sabha area. (2) Gram Sabha shall have the power to recommend to the competent authority Imposition of penalties In respect of a Goverl}Il1ent employee referred to In sub-section (I) for misconduct and negligence of duties. • 7-M. Power of State Government in relation to functions of Gram Sabha.-The State Government may. by general or special order. add or withdraw functions and duties entrusted to Gram Sabha when the State Govemment undertakes execution of any of the functions entrusted to Gram Sabha.