Manjulata Patle Vs State of Chhattisgarh

1 - State Of Chhattisgarh Through Secretary, Department Of Panchayat and Rural Development, Mahanadi Bhawan, Atal Nagar, Nawa Raipur, Dist. Raipur, C.G.

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2 - Sub Divisional Officer/Presiding Officer Dist. Janjgir-Champa, C.G.

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3 - Tahsildar/Presiding Officer Akaltara, Dist. Janjgir-Champa, C.G.

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4 - Chief Executive Officer Zila Panchayat Dist. Janjgir-Champa, C.G.

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5 - Secretary/Sachiv Village Panchayat Pachari (Khond), Tahsil Akaltara, Dist.- Janjgir-Champa, C.G.

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6 - Kiran Kishore Bhardwaj Wife Of Kishore Bhardwaj Village Panchayat Pachari (Khond), Tahsil Akaltara, Dist. Janjgir-Champa, C.G.

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7 - Collector Dist. Janjgir-Champa, C.G.

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8 - Commissioner Bilaspur Division, Bilaspur, C.G.

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... Respondents

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For Petitioner : Mr. Sushobhit Singh, Advocate For State : Mr. Praveen Das, Dy. Advocate General For Respondent No.6 : Mr. Aman Kumar Kesharwani, Advocate

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S.B.: Hon'ble Shri Parth Prateem Sahu, Judge

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CAV Order

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The petitioner has filed this writ petition questioning the legality and sustainability of the order dated 04.12.2023 passed in Revision Case No.53A-89/22-23 by Additional Commissioner, Bilaspur, Division Bilaspur whereby the revision filed by the petitioner was dismissed affirming the order passed by the Collector setting aside the “No Confidence Motion” dated 14.07.2021 against respondent No.6/Sarpanch in exercise of its jurisdiction under Section 21 (4) of the Chhattisgarh Panchayat Raj Adhiniyam, 1993 (hereafter referred to as “ Adhiniyam, 1993 ”).

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Facts relevant for disposal of this writ petition are that the petitioner is the elected Panch of Village Panchayat – Pachari (Khond), Tahsil-Akaltara, District- Janjgir Champa. She along with other Panchas have submitted an application/notice before the Prescribed Authority for bringing “No Confidence Motion” against respondent No.6/Sarpanch. Notice was signed by 12 elected Panchas including the Up-Sarpanch. After recording satisfaction, Prescribed Authority issued notice fixing the date, time and place of meeting for discussing “No Confidence Motion”. The date of meeting fixed was 07.07.2021. On the said date, out of 16 elected Panchas including Sarpanch, 13 Panchas including Sarpanch participated in the meeting and 3 remained

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absent. 11 elected Panchas casted their votes in favour of “Motion”, 1 against “Motion” and 1 vote was declared to be invalid. The Presiding Officer has declared the “Motion” to be carried out with majority. Said proceedings was put to challenge in a reference under Section 21 (4) of the Adhiniyam, 1993. The Collector while considering the reference came to conclusion that the total elected Panchas of Village Panchayat are 16 and more than two-third of which will be 12, however, 11 elected Panchas have casted their votes in favour of “Motion” and, therefore, second limb of Section 21 (1) is not fulfilled and thus allowed the reference application declaring the “No Confidence Motion” to be failed. Order of the Collector in reference was put to challenge by the petitioner in revision under Rule 5 of the Chhattisgarh Panchayat (Appeal & Revision) Rules, 1995 (for short “ Rules of 1995 ”) which came to be dismissed by impugned order.

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Learned counsel for the petitioner would submit that the Collector in the proceeding of reference as also the Commissioner in the revision erred in holding that “No Confidence Motion” failed by misconstruing the provision of Section 21 of the Adhiniyam, 1993, because the majority which voted in favour of “Motion” was not more than two-third of the total number of Panchas constituting the Gram Panchayat, and therefore the order impugned is erroneous.

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Learned counsel for the State as also counsel for respondent No.6 would support the order impugned and would submit that the Collector in the proceeding of reference has considered that constitution of Gram Panchayat to be of 16 Panchas and the number of votes casted in favour of “No Confidence Motion” was 11 . According to second requirement under

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provision of Section 21 (1), two -third of the total Panchas would be 11 and when the provision specifies that such majority to be more than two -third, the majority should have been 12 and, therefore, there is no error in the order impugned.

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I have heard learned counsel for the parties and also perused the documents annexed along with writ petition.

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Relevant provision of Section 21 (1) of the Adhiniyam 1993 is extracted below for ready reference:-

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“21. No-confidence motion against Sarpanch and UpSarpanch. (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 Panchas present and voting and such majority 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 office forthwith.

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(2)Notwithstanding anything contained in this Act or the rules made thereunder a Sarpanch or an Up-Sarpanch shall not preside over a meeting in which a motion of noconfidence 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 Authority may appoint. The Sarpanch or the UpSarpanch, as the case may be, shall have a right to speak at, or otherwise to take part in, the proceeding of the meeting.

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(3)No-confidence motion shall not lie against the Sarpanch or Up-Sarpanch within a period of-

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(i)one year from the date on which the Sarpanch or Up-Sarpanch enter their respective office;

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(ii)six months preceding the date on which the term of office of the Sarpanch or Up-Sarpanch, as the case may be, expires;

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(iii)one year from the date on which previous motion of no-confidence was rejected.

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(4)If 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), 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. ”

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The aforementioned provision under the Adhiniyam 1993 for carrying out a “No Confidence Motion” against Sarpanch or Up -Sarpanch mandates twin conditions. First - the resolution should have been passed by the majority of not less than three-forth of Panchas present and voting and, second- such majority is more than two-third of total number of Panchas constituting the Gram Panchayat for the time being. Undisputedly, as recorded by the Collector and the Revisional Authority, total Panchas constituting Gram Panchayat are 16 in case at hand. Two-third of the total number of Panchas constituting Gram Panchayat will come to 10.66 . Majority shall not be less than three-forth of Panchas present and voting. On the date of meeting, out 16, 13 Panchas were present in the meeting, 11 voted in favour of “Motion”, 1 against and 1 vote was declared to be invalid. The first requirement of the majority of not less than of three-forth Panchas present is fulfilled as threeforth of 13 comes to 9.75, whereas, 11 Panchas have voted in favour of motion. First condition is fulfilled.

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So far as the second requirement under sub-Section (1) of Section 21 of Adhiniyam, 1993 for passing of “No Confidence Motion” by majority of more than two-third of the total Panchas constituting the Gram Panchayat is concerned, Village Panchayat is constituted by 16 Panchas. Two -third of 16 will come to 10.66. Provision only talks of majority should be more than twothird. Two-third of 16 is in fraction as 10.66 and, therefore, more than twothird will be 11. 11 votes casted in favour of “Motion”, in the opinion of this Court, is more than required majority of two -third i.e. more than 10.66 and, therefore, the finding recorded by the Collector that meeting of “No Confidence Motion” failed because it could not satisfy the second limb is not sustainable. One should understand requirement under the provision of “No Confidence Motion” in particular provision under Section 21 (1) of the Adhiniyam 1993. It is not in dispute that fraction has to be considered to be full number but, it has to be applied understanding the requirement of the provision. For example if the fraction 10.66 is considered for first limb of not less than three-fourth of Panchas present and voting, the majority has to be 11. Similarly, the majority for considering the second limb at the time of voting comes in whole number like 9, 10 etc. that requirement of more than two - third shall be 10,11 and if majority of votes for computing two- third comes in fraction than the next whole number would meet the requirement, because it will be more than the actual two-third majority.

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For the foregoing discussions, the Collector as well as Commissioner erred in holding that requirement under second limb of sub-Section (1) of Section 21 in the facts of the case would be 12, in the opinion of this Court, is not sustainable. Accordingly, it is set aside. Proceeding of Presiding Officer

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declaring that “No Confidence Motion” has been carried out is upheld. Respondent No.2/Sub Divisional Officer to proceed further and pass necessary order under Section 21 of the Adhiniyam 1993.

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The writ petition is accordingly allowed.

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Sd/-----/--/---/-/-

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(Parth Prateem Sahu) Judge

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Praveen

Manjulata Patle v. State of Chhattisgarh

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Manjulata Patle v. State of Chhattisgarh

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