Madhya Pradesh High CourtRajendra Singh Parmar vs The State Of Madhya Pradesh on 3 December, 20141                  WP No.773/2014


                     HIGH COURT OF MADHYA PRADESH,
                           BENCH AT GWALIOR.

                      SB : Hon'ble Shri Justice Sujoy Paul
                           Writ Petition No. 773 of 2014
                             Rajendra Singh Parmar
                                       vs.
                              State of MP & others

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Shri H.D.Gupta, Sr. Advocate with Shri Santosh Agarwal, Advocate for
the petitioner.
Shri R.P.Rathi, Government Advocate for the respondents No.1 to 4.
Shri D.P.Singh, Advocate for the respondent No.16.
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                                         ORDER(03/12/2014)

                Parties are on loggerheads on the question relating to
validity of No-Confidence Motion proceedings. In this petition filed under
Article 226/227 of the Constitution, the petitioner has prayed for setting
aside the proceedings of the meeting dated 7.11.2012, whereby a No-
Confidence Motion was passed against him. The order dated
30.1.2014, Annexure P-1, is also called in question, whereby the validity
of the proceedings dated 7.11.2012 is upheld by the Commissioner,
Chambal Division, Morena.2.      The necessary facts giving rise to this matter are that the
petitioner was President of Janpad Panchayat Gohad, district Bhind. A
notice was submitted by 21 members of Janpad Panchayat before the
Collector on 17.10.2012 asking to convene the meeting for considering
No-Confidence Motion. The Collector, in turn, on 30.10.2012 directed to
convene a meeting on 7.11.2012 to decide the question of No-
Confidence Motion. The meeting was convened on 7.11.2012 and No-
Confidence Motion was passed. Thereafter, parties have fought a long
drawn battle in the corridors of the Court. However, ultimately in WP
No. 8532/2012, this Court on 16.11.2013 directed the petitioner to avail
the remedy under section 28(4) of Panchayat Raj Avam Gram Swaraj
Adhiniyam, 1993 (hereinafter called as 'Adhiniyam') before the
Commissioner. In turn, the dispute was filed before the Commissioner2              WP No.773/2014on 28.1.2013, which is decided by the impugned order dated 30.1.2014.3.    Shri H.D.Gupta, learned senior counsel assailed the proceedings
of No-Confidence Motion by contending that on 17.10.2012 a notice of
No-Confidence Motion was submitted, which was not in prescribed
form. It was filed under the signature of Shri Sudhir Kumar Sharma,
Advocate. The Collector has not followed rule 3 of the Madhya Pradesh
Panchayat (Gram Panchayat Ke Sarpanch Tatha Up-Sarpanch, Janpad
Panchayat Tatha Zila Panchayat Ke President Tatha Vice-President Ke
Virudh Avishwas Prastav) Niyam, 1994 (hereinafter called as '1994
Rules'). The Collector has not mentioned the date, time and place, as
required to be mentioned under rule 3. He has not recorded his
satisfaction as required in rule 3 read with section 28 of the Adhiniyam.
Since main notice dated 17.10.2012 does not contain the signatures of
elected members, said notice by no stretch of imagination can be
treated as a valid notice of No-Confidence Motion. It is strenuously
contended that as per rule 3 aforesaid, the Collector was required to
convene the meeting of Janpad Panchayat within fifteen days from the
date of receipt of said notice. In the present matter, it is contended that
Collector has fixed the meeting beyond fifteen days from the date of
presentation of notice. Thus, the said meeting and the resolution
passed on the said date is null and void. It is further submitted that the
notice of meeting for the purpose of no confidence needs to be issued
by Chief Executive Officer whereas in the present case the Collector
entrusted this job to Sub-Divisional Officer, which is bad in law. In the
debate on 7.11.2012, the petitioner was not permitted to speak. There
was no effective discussion/debate and, therefore, proceedings on
7.11.2012 were vitiated. It is further contended that in the manner
meeting was conducted, rule 5 of 1994 Rules was grossly violated. It is
submitted that during the proceedings before the Commissioner,
members, namely, Sunil Kaurav, Smt. Nirmala Devi and Guddi
submitted affidavits and stated in favour of the petitioner. No cross-
examination was conducted on the said affidavits by the other side.
Hence, their statement should have been treated as correct and learned
Commissioner has erred in disbelieving the same. In support of the3                WP No.773/2014aforesaid arguments, learned senior counsel relied on following
judgments:-(i)       AIR 1959 SC 459 (Sri Ram Ram Narain Medhi etc. vs.
                  State of Bombay).(ii)      1997 (2) MPLJ 175 (Dhumadandhin w/o Bundsai vs.
                  State of MP).(iii)     1998 (2) MPLJ 661 (Muka Bai vs. State of MP).(iv)      2001 (2) MPLJ 372 (Bhulin Dewangan vs. State of MP).(v)       2003 (4) MPLJ 378 (Jugraj Singh Markam vs. Dhannulal
                  Maravi).(vi)      2004 (1) MPHT 312 (Narayan Nagina vs. State of MP).(vii)     (2005) 2 SCC 271 (Nathi Devi vs. Radha Devi Gupta).(viii)    2007 (4) MPLJ 554 (Dinesh Sharma vs. State of MP).(ix)      2008 (1) MPHT 413 (Anil Kumar Jain vs. State of MP).(x)       (2010) 2 SCC 422 (Union of India vs. Kartick Chandra
                  Mondal).(xi)      (2010) 9 SCC 30 (Union of India vs. R. Vasudeva
                  Murthy).(xii)     (2012) 2 SCC 196 (Rasiklal Manikchand Dhariwal vs.
                  M.S.S.Food Products).(xiii)    (2013) 10 SCC 772 (Union of India vs. National
                  Federation of the Blind and others).
4.    Shri       R.P.Rathi,   learned       Government    Advocate   and   ShriD.P.Singh, learned counsel for the respondent No.16 supported the
proceedings of no-confidence and the order of the Commissioner. It is
submitted by learned Government Advocate that main notice contains
signatures of 21 members out of total 25 members. In addition,
affidavits of all 21 members were filed along with the said notice before
the Collector. When the notice of no confidence was submitted before
the Collector on 17.10.2012, all the applicants/21 members put their
signatures in the order sheet to demonstrate that the said notice was
given by them on their own volition and without there being any
pressure or threat. He submits that the proceedings were in
consonance with rules 3 and 5 of 1994 Rules. Learned counsel for the
respondents heavily relied on the Full Bench judgment of this Court,
reported in 2000 (4) MPHT 69 (Smt. Bhulin Dewangan vs. State of MP).
In addition, the respondents relied on following judgments :-(i)       1997 (2) MPLJ 175 (Dhumadandhin w/o Bundsai vs.
                  State of MP).(ii)      2002 (3) MPHT 175 (Shivaji Rao Patil vs. The Collector,
                  Balaghat).(iii)     2004 (2) MPHT 76 (Smt. Kamla Durga Solanki vs. State4            WP No.773/2014of MP).(iv)     2005 (1) MPLJ 200 (Nanchi Bai vs. State of MP).(v)      2008 (1) MPHT 413 (Anil Kumar Jain vs. State of MP).
        (vi)     (2008) 1 SCC 560 (Udyami Evam Khadi GramodyogWelfare Sanstha and another vs. State of Uttar Pradesh
                 and others).(vii)    2008 (2) MPLJ 172 (Seva Yadav vs. State of MP).(viii)   (2008) 12 SCC 481 (K.D.Sharma vs. Steel Authority of
                 India Limited).5.In rejoinder submission, learned counsel for the petitioner
submits that the judgment ofBhulin Dewangan(supra) shows that the
Full Bench was constituted to decide the correctness of the judgments
passed by earlier benches of smaller strength in certain other matters.
The basic question was arising out of a cleavage of opinion between
various decisions of this Court on the question whether the later part of
rule 3 requiring dispatch of notice of meeting to every member of the
Panchayat is mandatory and means service of notice on the members
seven days in advance of the date scheduled for considering No-
Confidence Motion. To elaborate, it is submitted that under the relevant
High Court Rules, the Full Bench is obliged to answer only such
question which is referred to it or which is subject matter of the
difference of opinion. If Full Bench has travelled beyond such question
and opined something, such opinion is per incuriam and is not binding.
It is also submitted that the Presiding Officer, who presided the meeting
on 7.11.2012 had some bias against the petitioner and, therefore, the
meeting was not fairly conducted by him.6.    No other point is pressed by learned counsel for the parties.7.    I have heard learned counsel for the parties at length and
perused the record.8.    The basic facts are not in dispute. It is not in dispute that the
notice of No-Confidence Motion was submitted on 17.10.2012. The
Collector fixed the meeting for 7.11.2012 and motion was passed on the
said date. The objection of the petitioner is regarding the manner in
which notice was given on 17.10.2012 and the manner in which
meeting was directed to be convened. Eyebrows are also raised in the
manner decision was taken on 7.11.2012.9.    Section 28 of the Adhiniyam deals with No-Confidence Motion5              WP No.773/2014against President or Vice-President of Janpad Panchayat. As per
section 28, if resolution of no-confidence is passed by a majority of not
less than three-fourth of the elected persons present and voting of such
majority is more than two-third of total number of elected members
constituting the Janpad Panchayat for the time being, the President
against whom such resolution is passed shall cease to hold the office
forthwith. Rule 3 of 1994 Rules prescribes that the notice desiring to
move a motion of no confidence needs to be signed by not less than
one third of the total number of elected members of Panchayat. The
notice needs to be submitted before the Prescribed Authority (Collector
in this case). On receiving the notice under sub-rule (1), the Collector
needs to certify the date and hour on which notice was given to him. On
receiving the notice, the Prescribed Authority needs to satisfy himself
about the admissibility of notice with regard to section 28(3) of the
Adhiniyam. This satisfaction is must because No-Confidence Motion
shall not lie in three conditions, i.e., (i) two and half year from the date
on which the 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 may be, expires; and, (iii) six
months from the date on which previous motion of no confidence was
rejected. On being satisfied, the Collector needs to fix the date, time
and place for the meeting of Panchayat.10.   The bone of contention of petitioner is based on the language of
rule 3(3), which states that said meeting shall not be after more than
fifteen days from the date of receipt of the said notice. In the present
case, admittedly the notice was submitted on 17.10.2012 and meeting
was convened on 7.11.2012. The question is, whether this delay in
conducting the meeting will vitiate the meeting ? Learned counsel for
the petitioner has relied on the judgment of this Court inMukobai(supra).Interestingly, heavy reliance is placed by both the sides onBhulin Dewangan(supra) decided by Full Bench.InBhulin Dewangan(supra), this Court considered an incidental question whether non-
compliance of sub-rule (3) of rule 3 would, as a necessary corollary,
invalidate the proceedings held in the meeting called for passing the6              WP No.773/2014No-Confidence Motion. No doubt, a bare reading of rule 3(3) of 1994
Rules shows that it is couched in a mandatory language. However, it is
apt to quote a passage from Principle of Statutory Interpretation by
Justice G.P.Singh, wherein he quoted as under :-"The word "shall", observes Hidayatullah, J. "is ordinary
            mandatory but it is sometimes not so interpreted if the
            context or the intention otherwise demands", and points
            of Subbarao, J., "When a statute uses the word 'shall',
            prima facie it is mandatory, but the Court may ascertain
            the real intention of the Legislature by carefully attending
            to the whole scope of the statute."11.InBhulin Dewangan(supra), the Full Bench considered the
aforesaid passage and opined that 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 fifteen days from the date of receipt of the said
notice". The legislative intent behind the rule clearly appears to be that
when a notice of No-Confidence Motion duly signed by requisite
number of elected members of Panchayat is received, the Prescribed
Authority shall not be allowed to sit ideal over it for an unreasonable
long period of time. It is enjoined on him that he shall within not more
than fifteen days from receipt of notice by him, call a meeting for
considering the No-Confidence Motion.The Full Bench considered the
earlier judgments on the point, namely, - Dhumadandhin w/o Bundsai
vs. State of MP [1997 (2) MPLJ 175] and Mahaveer Saket vs. Collector,
Rewa[1998 (2) JLJ 113].C.K.Prasad, J. (as he then was) in
Dhumadandhin (supra) opined that " the question therefore, is as to
whether failure on part of the prescribed authority to fix the meeting
within the time stipulated shall render the motion of no confidence
vitiated in the eye of law. Rule 3 (3) of the Rules casts duty on the
prescribed authority, the members who have given the notice for
consideration of the no-confidence motion, has no control over the
same. In my opinion, the will of the members in relation to the no-
confidence motion cannot be defeated on account of inaction of delayed
action of the prescribed authority. Holding otherwise, will lead to
nullifying the wish of the members on the no-confidence motion for an
act over which they have no control. In my opinion, rule 3(3) of the7               WP No.773/2014Rules operates in the field of public duty and to hold null and void acts
in its neglect work serious injustice to persons who have no control over
those who are entrusted with the duty. Accordingly, it was held that a
motion of no-confidence passed against the petitioner beyond a period
of fifteen days from the date of notice cannot be held to be illegal.InMahaveer Saket(supra), R.S.Garg, J., held that mere non-compliance
of first part of the rule in fixing the meeting beyond the prescribed date
of motion of no confidence would not invalidate the whole proceedings.InBhulin Dewangan(supra), the Full Bench opined that even where the
provision is mandatory, every non-compliance of said provision need
not necessarily result in nullification of whole action. In a given situation,
even for non-fulfillment of mandatory requirement, the authority
empowered to take a decision may refuse to nullify the action on the
ground that no substantial prejudice had been caused to the affected
party, who had substantial interest in the proceedings. It is opined that
this Court underArticle 227of the Constitution has also a discretion not
to interfere even though a mandatory requirement of law has not been
strictly complied with as thereby no serious prejudice or failure of justice
has been caused.The Full Bench approved the decision of
Dhumadandhin (supra). Thus, as per this Full Bench judgment, the
meeting cannot be mechanically nullified as a thumb rule for the reason
that it was convened after fifteen days from the date of notice. The
whole action needs to be examined as per the intent of the rule. It is to
be seen whether such procedural or technical flaw and delay has
resulted into substantial prejudice or failure of justice with regard to the
affected person.12.   The record shows that after receiving the notice, the Collector
examined it carefully and recorded his satisfaction that it is in
consonance with the requirement of section 28 and rule 3. In order to
record this satisfaction, the Collector consumed some time which
resulted into convening of meeting beyond fifteen days. The notice is
signed by 21 members. In addition, they filed their own affidavits in
support of the said notice. The order of Collector dated 30.10.2012
shows that he obtained an enquiry report from Sub-Divisional Office. He8              WP No.773/2014recorded his satisfaction that out of 21 affidavits submitted along with
notice, 20 members have certified regarding submission of their
affidavits. He verified the contents of application/notice and relevant
documents and thereafter fixed the meeting on 7.11.2012. This order
sheet shows that the Collector had undertaken this exercise in order to
ensure transparency and in order to examine that requirement of
section 28(3) of the Adhiniyam is fulfilled.13.   The question is whether this delay resulted into any prejudice to
the petitioner ? In the opinion of this Court, for this delay no substantial
prejudice is caused to the petitioner. During the course of the argument
also the petitioner has not pointed out anything which shows the nature
of prejudice caused to him because of said delay in convening the
meeting. It cannot be forgotten that if elected members submitted a
notice of No-Confidence Motion, thereafter they have no control over
the same and it is for the Prescribed Authority to take action on it. If the
Prescribed Authority delays the same, the meeting cannot be
mechanically declared as invalid. Fransis, J. Mc Caffrrey in the 'Rule
from Statutory Construction', 1953 Edition,Article 52, Page 110, said as
under:-"Where a statute regulates the time at or within which
           an act is to be done by a public officer or body, it is
           generally construed to be permissive only as to the
           time, for the reason "that the public interests are not to
           suffer by the laches of any public officer" (Looney vs.
           Hughes, 26 N.Y., 514). While the courts are inclined to
           hold such provisions to be directory only as to time,
           they will be read as mandatory if the nature of the act
           to be performed or the phraseology of the statute
           indicates an intention on the part of the legislature to
           accept a literal complaints with the requirement of time.
           The courts seek to achieve a just result in not ascribing
           and invalidating effect to the failure of public officers to
           observe the time provisions of statutes : a contrary rule
           would operate unfairly in prejudicing the rights of
           persons who have no control over the conduct of the
           public officer."(Emphasis Supplied)14.In view of finding ofBhulin Dewangan(supra) and the view of
Fransis, J. (supra), it is clear that the meeting convened on 7.11.20129              WP No.773/2014cannot be mechanically held as illegal. The Collector, as noticed above,
consumed some time in verification of the notice/affidavit etc. The delay
caused because of the said exercise has not resulted into any
substantial prejudice or failure of justice to the petitioner. Thus, I am
unable to hold that the meeting held on 7.11.2012 is vitiated.15.   A Division Bench of this Court in 2008 (2) MPLJ 16 (Seva Yadav
vs. State of MP) opined that "in view of the aforesaid discussion, it is
clear that this Court has approved this interpretation of rule 3(3) of
"Niyam of 1994" that fixing the date of meeting within 15 days is
mandatory but as no consequences have been mandated under the
rules therefore, if the meeting is fixed prior to fifteen days or after the
period of fifteen days, it would not nullify the entire action of passing no
confidence motion. His Lordship Hon. Shri A.K.Mathur, CJ (as he then
was) and Hon Shri Dharmadhikari Justice (as he then was) have rightly
held that every non-compliance of the mandatory rule need not
necessarily result in nullification of the whole action. In a given situation
even for non-fulfillment of mandatory requirement the authority
empowered to take a decision may refuse to nullify the action on the
ground that no substantial prejudice has been caused to the party
affected or to any other party which would not have any other
substantial interest in the proceedings. It is the general principle that the
public interest should not be allowed to suffer by the laches of any
public officer. In this view of the matter, the argument regarding validity
of meeting beyond fifteen days must fail.So far the contention that the judgment of Full Bench is not
binding and per incuriam is concerned, I do not see any substance in
this contention. I am bound by the judgment of Full Bench inBhulin
Dewangan(supra). The Full Bench opined that the question arising out
of rule 3 aforesaid is an incidental question. Finding of Full Bench even
on an incidental question is equally binding on this Court. The propriety,
judicial discipline and law of precedent requires that such decision must
be respected by the benches of smaller strength.Apart from this, in
(2001) 2 SCC 480 (Pabitra Mohan Dash and others vs. State of
Orissa), the Supreme Court opined that if a special bench thinks it10             WP No.773/2014appropriate to reconsider the matter afresh and redetermine the issues
involved in the light of relevant provisions, there is no infirmity on that
score even though the point of reference was of a limited nature. The
Court while examining the provisions of the Act, Rule or Regulation
feels that earlier decision on the question is not clear on any particular
issue or has created confusion in resolving the dispute, it would be the
duty of the Court to re-examine the matter.For this reason also, I find
no substance in the argument thatBhulin Dewangan(supra) is not
binding.Apart from this, a subsequent Division Bench decision inSeva
Yadav(supra) has taken the same view.In addition, inNanchi Bai(supra), this Court opined that when
petitioner participated in the meeting without raising any objection and
motion was carried out with majority, no prejudice is caused to the
petitioner because of non-convening of meeting within a period of
fifteen days.16.      The Commissioner opined that although the notice is not
submitted in prescribed form, it fulfills the basic requirement of the
Rules. I find no legal infirmity in the said finding. The necessary
ingredients for filing a notice were very much there which were duly
verified by the Collector. Hence, on this score no interference is
warranted.17.      The Collector has verified the genuineness of the affidavits
submitted along with the notice and recorded his satisfaction in the
order dated 17.10.2012. No flaw could be pointed out which establishes
that the said order dated 17.10.2012 has resulted into substantial
prejudice to the petitioner. Thus, no interference is warranted on this
score.18.      It is submitted that on 7.11.2012 no debate took place and
resolution was passed which runs contrary to rule 5 of 1994 Rules. The
proceeding of the said date shows that the motion was moved through
the movers. Rule 5(4) shows that the motion is required to be moved by
the mover and other members may speak on the motion only if they so
desire. There is no material on record to show that any other member
expressed any such desire to speak. Thereafter, the petitioner was11          WP No.773/2014permitted to speak on the motion and he stated that the allegations
against him are incorrect. If mover has put forth his stand which is
controverted by the petitioner, a debate actually took place. It cannot be
said that the persons who expressed their desire to speak were not
permitted to speak. In view of rival stand, for and against the motion,
the Presiding Officer adopted the procedure of secret ballot. Nothing
could be pointed out which shows that it either violates rule 5 or has
resulted into any substantial prejudice to the petitioner. Thus, I find no
reason to interfere on this score.19.   The stand of the petitioner is that he had strained relation with the
Presiding Officer, who convened the meeting on 7.11.2012. There is no
material on record to show that on or before 7.11.2012, the petitioner
had raised any such objection. He raised this objection after passing of
the resolution. Thus, this ground cannot be a reason to disturb
Annexure P-2.20.   So far the contention regarding evidence through affidavits of
Sunil Kaurav, Nirmala Devi and Guddi is concerned, there is no material
on record to show that between 17.10.2012 to 7.11.2012 they preferred
any representation to the authorities contending that they did not sign
the notice dated 17.10.2012 and they were in any wrongful
confinement. Interestingly, even in the said affidavits they have not
stated that they signed on the notice dated 17.10.2012 under any
coerce, compulsion, threat or pressure. It is relevant to note that even
after passing of the resolution dated 7.11.2012, they did not submit any
application before the Collector or any other authority that they acted
under dictate or pressure. After a considerable long time, they filed
affidavits before the Commissioner.InAnil Kumar Jain(supra), this
Court dealt with a situation where certain affidavits were filed on
30.8.2007 and 31.8.2007 by two councilors but later on they resiled
from the same. This Court opined that there is no provision under the
Act empowering the authorities to reconsider the matter and to ignore
the earlier proposal based on earlier affidavits. The affidavits for the
reasons stated above, do not inspire any confidence and, therefore, in
my view, the Commissioner has not erred in not accepting them. The12               WP No.773/2014Commissioner rightly opined that since no objection was taken by the
        said deponents during the meeting on 7.11.2012 or immediately
        thereafter, the said affidavits are not reliable. More so when in the
        affidavits filed with notice dated 7.10.2012, their signatures are not in
        dispute. He rightly held that subsequent affidavits of such persons are
        outcome of after thought. He has taken a plausible view which does not
        require any interference by this Court.21.   To sum up, the judgment ofBhulin Dewangan(supra) directly
        deals with relevant provisions of the Adhiniyam and Rules. Thus,the
        said judgmentis binding on this bench. As per the legislative intent, a
        No-Confidence Motion moved and passed by majority cannot be
        nullified on hyper-technical grounds and on trivial flaws. Unless the
        petitioner is able to establish that any such flaw has resulted into
        substantial prejudice to him or miscarriage of justice, interference is not
        warranted, otherwise, the very purpose of bringing No-Confidence
        Motion will be defeated on technical grounds. In the present case, the
        petitioner could not establish any such flaw in the process which has
        resulted into any such substantial prejudice or miscarriage of justice.
        Although the petitioner has relied on certain other judgments but said
        judgments are based on different factual scenario. Those judgments
        are not applicable in the facts and circumstances of the present case.22.   As analyzed above, there is no legal infirmity in the no confidence
        proceedings and resolution which warrants interference by this Court.
        Petition fails and is hereby dismissed. No cost.(Sujoy Paul)
                                                                  Judge

(Yog)