Abhay Gohil J.
1. The appellant being aggrieved with the order dated 7.1.2008 passed by the learned Single Judge in Writ Petition No. 582.08, whereby dismissed the writ petition filed by the appellant/petitioner challenging the action of the competent authority regarding the adjournment of meeting dated 13.12.2007, which was fixed for consideration of no confidence motion, has filed this Writ Appeal under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005,
2. Brief facts of the case are that the petitioner is an elected Sarpanch of Gram Panch Todia Khasla District Shivpuri. She was elected in the month of Jan.-Feb.2005. Her case before the Writ Court was that on 29.11.2007, out of total 18, 13 Panchas of the aforesaid Panchayat submitted a motion for no confidence before the Sub Divisional Officer. The motion was signed by all 13 members and grounds were also mentioned therein. The aforesaid motion was taken on record and direction was given to the Secretary to produce the record as well as to Chief Executive Officer Janpad Panchayat Pohri to produce the list of elected Panch of the Panchayat. A copy of the aforesaid resolution was also forwarded to the Collector and the case was fixed for 5.12.2007. A notice under Section 3 (1) 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 referred to as the Niyam of 1994) was also issued by the Sub Divisional officer on 29.11.2007 to the appellant. On 5.12.2007 Chief Executive Officer Janpad Panchayat Pohri produced a list of 18 elected Panch of the Panchayat and it was mentioned that one Panch elected from Ward No. 16 has expired. Thereafter Naib Tehsildar was appointed as Presiding Officer and meeting was fixed for 13.12.2007 at Government Secretariat building at 11 a.m. for considering the motion of no confidence. On the same day i.e. on 5.12.2007, at about 2.30 p.m. C.E.O. Janpad Panchayat Pohri submitted a letter that the election programome for the election of Panch of Ward No. 16 has been pronounced by the Election Officer, District Shivpuri and election programme has commenced from 30.11.2007 to 22.12.2007 and model code of conduct has also come into force. Therefore, in such circumstances it was considered that the election programme will affect the meeting for no confidence motion. Therefore the meeting fixed for 13.12.2007 was adjourned and it was directed that fresh date shall be fixed after 22.12.2007. Against this order of adjournment, the petitioner has filed W.P. No. 5821/07. By order dt. 7.1.2008 learned Writ Court dismissed the writ petition holding therein that under the facts and circumstances of the case, the SDO respondent No. 2 has not committed any illegality in adjourning the meeting of 13.12.2007, which was fixed for considering the no confidence motion and dismissed the writ petition against which the appellant has filed this Writ Appeal.
3. We have heard the learned Counsel for the parties and perused the documents and record.
4. Shri Gaurav Samadhiya, learned Counsel appearing for the appellant vehemently submitted that the action of the SDO in adjourning the meeting, which was fixed for consideration of no confidence motion, is illegal under law that he has no power to adjourn the meeting and if the meeting is adjourned, fresh meeting can not be convened by the SDO as the notice for no confidence motion given by 13 panch members would die automatically and fresh notice would require for consideration of the no confidence motion. He drew our attention on the provisions of Rule 3 of the 'Niyam 1994' and submitted that the meeting on the earlier notice can not be fixed more than 15 days from the date of the receipt of the said notice and laid emphasis on the following words mentioned in the Rule 3 (3) -'which shall not be more than 15 days from the date of the receipt of the said notice.'. He also placed reliance on the various decisions of this Court and submitted that the learned Writ Court was not justified in holding that the SDO can fix the meeting again bypassing the mandatory provisions of Rule 3 and the direction issued by the learned Writ Court to respondent No. 2 i.e. to SDO to take action for convening the meeting in accordance with rules and proceed to decide the motion as per law is also contrary to the provisions of Rule 3 of the aforesaid Niyam of 1994.
5. In reply Shri R.D.Jain, learned Senior Counsel submitted that this matter stands concluded by the decision in the case of Prabhudayal Patel v. State of M.P. 2003 (2) JLJ 182, Full Bench decision in the case of Bhulin Dewangan v. State of M.P. and Ors. 2000(2) JLJ 253, and has also placed reliance on the various decisions of the Single Judge in the case of Mahaveer Saket v. Collector Rewa and Ors. 1998 (2) JLJ 113, Muku Bai v. State of M.P. and Ors. 1998(2) MPLJ 661, Lakhan Singh v. State of M.P. and three Ors. 1998 (1) MPJR 349 and supported the order passed by the learned Single Judge and he further argued that though under Rule 3 it has been mentioned that the date of notice shall not be fixed for period of more than 15 days from the date of receipt of said notice, but no further consequence has been prescribed under the law that if the date is fixed more than the period of 15 days, whether the aforesaid action would be a nullity.
6. After considering the rival contentions of the learned Counsel for the parties, it would be useful for the disposal of this appeal to reproduce the provisions of Rule 3 (3) of Niyam of 1994, which reads as under:
(3) On receiving the notice under Sub-rule (1) the prescribed authority shall satisfy himself about the admissibility of the notice with reference to Section 21 (3), 28(3) and 35(3), as the case may be. On being thus satisfied, he shall fix the date, time and place for the meeting of the Gram Panchayat, Janpad Panchayat or Zila Panchayat, as the case may be, which shall not be more than fifteen days from the date of receipt of the said notice. The notice of such meeting specifying the date, time and place thereof shall be caused to be dispatched by him through the Secretary of the Gram Panchayat or Chief Executive Officer of the Janpad or Zila Panchayat, as the case may be, to every member of the Panchayat concerned seven days before the meeting.
7. There is no dispute that in case of Mahaveer Saket v. Collector Rewa and Ors. 1998 (2) JLJ 113, the provisions of Rule 3 came up for consideration before the Single Judge and Hon'ble Shri R.S.Garg, J., has held that if the meeting is held beyond 15 days it would not affect its validity and for that purpose the decision in the case of Smt. Dhumadandhin v. State of M.P. 1997 (1) Vidhi Bhasvar 49 was considered and relied upon.
8. In the case of Smt. Dhumadandhin (supra), the question before the learned Single Judge was whether a no confidence motion against Sarpanch of Gram Panchayat passed at meeting held beyond period of 15 days from the date of notice would be valid or not and after considering the earlier decision in the case of Shankarlal v. Collector, Mandsaur 1975 JLJ 500, it was held that -
If the motion was considered in adjourned meeting held beyond the period of 15 days, the meeting would not be invalid. The meeting was adjourned on account of non fulfillment of coram and it was considered that Rule 3(3) of the Rules casts a duty upon the prescribed authority to fix the date, time and place of the meeting which shall not be more than 15 days from the date of receipt of the notice. 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.
Therefore, in the light of the aforesaid logical conclusion, the learned Judge was of the view that if the meeting was held beyond the period of 15 days from the date of notice, the same can not be held to be illegal.
9. In the case of Lakhan Singh v. State of M.P. and 3 Ors. 1998 (1) MPJR 349, the learned Single Judge Hon'ble Shri Tej Shankar, J (as he then was) was of the view that the Presiding Officer can adjourn the meeting called for considering no confidence motion in exercise of inherent powers. Such a meeting can also be adjourned for a period beyond 15 days.
10. Though in the case of Lakhan Singh (supra), the question for consideration was about the powers of the Presiding Officer and not of the Prescribed Authority and it was held that under some circumstances and in case of some eventualities, the Presiding Officer may adjourn the meeting and may fix the next date for holding the meeting and consider the motion therein and if the decision is taken for adjourning the meeting that would be within the inherent power of the Presiding Officer, who is conducting the meeting.
11. In the case of Muku Bai v. State of M.P. and Ors. 1998(2) MPLJ 661, His Lordship Shri A.K. Mathur, C.J. (as he then was) speaking for the Division Bench has considered this aspect of the matter that as per the provisions of Rule 3(3), the requirement to convene meeting within 15 days as provided in Rules is mandatory, but was also of the view that such meeting can be adjourned because of reasons behind control of the prescribed authority. After considering the provisions of Rule 3(3) of the Niyam of 1994 read with the provisions of Section 21 and Section 95 relating to Rule making power of the Madhya Pradesh Panchayat Raj Adhiniyam, 1993, as well as considering the provisions of Section 21 of the M.P.General Clauses Act, 1957 and after considering the rival decisions in the case of Dhumadandhin (supra) and in the case of Smt. Baby Raja v. State of M.P. and Ors. referred in the judgment has held as under:
Under Rule 3(3), the convening of meeting within 15 days is must, it is a mandatory and if the meeting which is convened within 15 days could not proceed because of the reason beyond control of the prescribed authority, it can be adjourned and the bar of Rule 3(3) will not come in the way.
It is further held that the view taken in Hargovind Johri v. Zilla Panchayat, 1996 MPLJ 409 can not be said to be a good law.
12. The question of legislative intent behind the rule was also considered by Full Bench in the case of Bhulin Dewangan v. State of M.P. and Ors. 2000 (2) JLJ 253 and Shri D.M. Dharmadhikari, J. (as he then was) speaking for the Full Bench has held that
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 1/3rd 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.
13. The question of mandatory requirement as per rule and its non compliance about service of notice as provided in the second para of Sub-rule (3) of Rule 3 of 'Niyam of 1994' was also considered in the same context by the Full Bench and further held:
15. The general rule is that non-compliance of mandatory requirement results in nullification of the act. There are, however, several exceptions to the same. If certain requirements or conditions are provided by statue in the interest of a particular person, the requirements or conditions, although mandatory, may be waived by him if no public interest are involved and in such a case the act done will be valid even if the requirements or conditions have not been performed. This appears to be the reason for learned C.K. Prasad, J. in Dhumadhandin v. State of M.P. 1997 (1) Vidhi Bhasavar 49 which was followed by R.S. Garg, J. in Mahavir Saket v. Collector, Rewa 1998 (1) JLJ 113 for holding that mere non-compliance of first part of the rule in fixing a meeting beyond the prescribed days of the motion of no-confidence would not invalidate the whole proceedings. In case of Dhumadhadin (supra), the Sarpanch did not question the validity of the notice calling the meeting of no- confidence and in fact had taken chance by facing the motion. R.S. Garg, J. in Mahavir Saket (supra) placed reliance on the decision of C.K. Prasad, J. in Dhumadhandin (supra) to up-hold the passing of the no-confidence motion in the adjourned meeting as in the meeting called within the prescribed fifteen days the Presiding Officer was not available. Sub-section (4) of Section 21 permits reference of a dispute to the Collector by Sarpanch or Up-Sarpanch against whom a notice of no-confidence motion had been passed. The proceedings of the no-confidence motion or other proceedings under the Act are also assailable in this Court as Constitutional Court under Article 227 of the Constitution of India. As has been construed by us, even though second part of the rule requiring dispatch of notice of the meeting to the members is mandatory, yet in every case of challenge to the proceeding of no confidence motion either before the Collector or this Court, it would still be open to the Collector or this Court to find out whether in a given case noncompliance of any part of the rule has in fact resulted in any failure of justice or has caused any serious prejudice to any of the parties. The general rule is that a mandatory provision of law requires strict compliance and the directory one only substantial. But even where the provision is mandatory, every noncompliance of the same 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 had been caused to the party affected or to any other party which would have any other substantial interest in the proceeding. This Court under Article 227 of 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. This is how various Single Bench decisions in which even after finding some infraction of the second part of Rule 3(3) of the Rules of 1994, the resolution of no confidence motion passed was not invalidated on the ground that no substantial prejudice thereby was caused to the affected parties. The intention of the legislature has to be gathered from the provisions contained in Section 21 and the Rule 3(3) framed thereunder. The provisions do evince an intention that a meeting of the no-confidence motion be called within a reasonable period of not later than 15 days and every member has to be informed of the same seven days in advance. A notice of no-confidence motion is required to be moved by not less than 1/3rd of the total number of elected members as required by first proviso to Sub-rule (1) of Rule 3 and can be lawfully carried by a resolution passed by majority of not less than 3/4th of the Panchas present and voting and such majority has to be more than 2/3rd of the total number of Panchas constituting the Panchayat in accordance with Sub-section (1) of Section 21 of the Act. This being the substance of the provisions under the Act and the 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) of Section 21 or this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution comes to the conclusion that such non-compliance has caused serious prejudice to the affected officer bearer or has otherwise resulted in failure of justice.
14. Thus it was concluded that non compliance of said rules has not caused serious prejudice to the affected officer bearer or has otherwise resulted in failure of justice. It was also considered that whether non compliance of the same will result nullifying of the whole action and further considered this aspect of the matter in para 16 of the judgment, which is as under:
16. We get some support in our conclusion on the construction of the provisions contained in the Rule from Statutory construction by Francis J. MC Caffrrey, 1953, Edition, Article 52, Page 110 where it stated:
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 interest are not to suffer by the laches of any public officer' Looney v. Hughes 26 N.Y., 514, while the courts are directed 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 exact a literal compliance with the requirement of time. The Courts seek to achieve a just result in not ascribing an 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.and from the following passage in Statutory Interpretation by Francis Bennion, Second Edition, Part I, Section 10 Page 34;
Even where the duty is mandatory, the Court will not nowadays hold it to be contravened because of a purely formal or technical defect. This may be described as a defect that does not materially impair the remedy intended to be provided by the enactment for the mischief to which it is directed.And consequently the Full Bench approved the Division Bench decision in the case of Mukubai v. State of M.P. 1999(1) Vidhi Bhasvar 4 : 1998 (2) MPLJ 661, Mahesh Pd. Choudhary v. State of M.P. 1997 (2) JLJ 397, Srinarayan Tiwari v. State of M.P. 1998 (1) JLJ 124 and Sharda Bai Khatik v. State of M.P. 1998 (1) JLJ 399.
15. 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 15 days or after the period of 15 days, it would not nullify the entire action of passing no confidence motion. His Lordship Hon'ble Shri A.K. Mathur, CJ (as he then was) and Hon'ble Shri Dharmadhikari, J., (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 had been caused to the party affected or to any other party which would not have any other substantial interest in the proceeding. It is the general principle that the public interests should not be alloted to suffer by the latches of any public officer.
16. In the case in hand the prescribed authority under particular circumstance, which was certainly either logical or the eventful, was of the view that when the election for the Ward No. 16 were announced and the election programme was fixed between 30.11.2007 to 22.12.2007 and the model code of conduct was made application and he received the timely information about the same, in our considered opinion, was justified in postponing the meeting and was also fully justified in fixing the date of 23.12.2007 for consideration of fresh date for fixing the next date of meeting for consideration of the resolution for no confidence. The learned prescribed authority in our view has not committed any illegality, that was within his right to adjourn the meeting under the aforesaid circumstances and that too was in favour of appellant as has been held in the case of Mahaveer (supra) that the Rule has been framed just to avoid horse trading in such cases, but here in this case we find that the decision by giving long time to the appellant by adjourning the meeting was certainly in her favour. Though in such circumstances, the aforesaid 13 Panchas, those who have moved the resolution should have raised this grievances but even after obtaining such time to manage the affairs in right manner, it appears that the appellant has challenged the same and has rightly obtained the maximum time and was successful in avoiding the consequences.
17. At this stage, Shri R.D.Jain, learned Counsel for the caveator/respondent has submitted that in view of the directions given by the learned Single Judge vide order dt. 7.1.2008, the SDO has already fixed the next date of meeting on 28.1.2008. Thus, in view of the aforesaid discussion, we do not find any merit in this appeal. Accordingly, this appeal fails and is hereby dismissed with no costs.