Ramnath Kaushik Vs. State of M.P. and ors. - Court Judgment

Excerpt:
- - 40-b/128-96-97 under the provisions of section 91 of the madhya pradesh panchayat raj adhiniyam, 1993 (hereinafter referred to as the 'act'), by which the no confidence motion has been held to have been duly passed against the petitioner, sarpanch, gram panchayat semra as also the order anncxure-p/2 passed by the additional commissioner in appeal under rule 3 of the madhya pradesh panchayats (appeal and revision) rules, 1995 affirming the said order annexure-p/1 and further seeks a declaration to the effect that the no confidence motion moved against the petitioner has failed. 5, up-sarpanch of the gram panchayat, before the collector which was allowed by order annexure-p/1 and the collector held, on examination of the vote declared invalid by the prescribed officer, that the vote was valid and was for the motion with the result, the no confidence motion was clearly carried by 16 votes for the motion as against 5 which constituted the requisite majority. on a motion of no confidence having failed against the sarpanch, the up-sarpanch had no authority to raise dispute under sub- section (4) of section 21 and the order of the collector was, therefore, without jurisdiction. 5 has further submitted that on a visual examination of the vote declared invalid by the prescribed officer, it was apparent that the presiding officer had erred as the vote clearly indicated that the same had been cast in favour of the motion. ' 6. 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) of section 21. the expression 'carried out' employed in sub-section (4) can only mean the consequence provided in sub- section (1) of section 21 which clearly indicates that it is only against a motion of 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. recorded his conclusions in paragraphs 9 and 14 as follows :9. it is well settled that when in a statute different words are used, there is presumption that they are not used in the same sense. rule making authority being aware of the fact that in the act words 'orders and resolution' have been separately used and then omission to incorporate the words resolution in rule 3 of the appeal and revision rules, in my opinion clearly shows that the resolution of no confidence motion has not been made appealable under rule 3 of the appeal and revision rules. ' 8. in view of the above conclusions, it is clear that an appeal was not maintainable against a no confidence motion whether carried or failed and the additional collector respondent no. 5 has urged that assuming that an appeal was not maintainable before the collector against the failure of a no confidence motion under section 21, the collector had the power under rule 5 of the appeal and revision rules, to entertain a revision on the application of any party for satisfying himself as to the legality or propriety of any order passed by the authority subordinate to it or as to the regularity of the proceedings and to pass such orders as he may think fit. brijendra patel, 1985 mplj 332. in the said case also it has clearly been held that the motion of no confidence is not an executive order and the proceedings of no confidence motion were not proceedings of any case pending or disposed of by any sub- ordinate authority. it was in the context of this allegation that this court had examined the original record and the ballot papers and had come to the conclusion that the symbols assigned in the disputed ballot papers clearly conveyed the intention that the vote was in favour of the no confidence motion.orders.k. kulshrestha, j.1. this petition challenges the order annexure-p/1 dated 29-8-1997 passed by the additional collector, bilaspur, in case no. 40-b/128-96-97 under the provisions of section 91 of the madhya pradesh panchayat raj adhiniyam, 1993 (hereinafter referred to as the 'act'), by which the no confidence motion has been held to have been duly passed against the petitioner, sarpanch, gram panchayat semra as also the order anncxure-p/2 passed by the additional commissioner in appeal under rule 3 of the madhya pradesh panchayats (appeal and revision) rules, 1995 affirming the said order annexure-p/1 and further seeks a declaration to the effect that the no confidence motion moved against the petitioner has failed. the petitioner was the elected sarpanch of gram panchayat semra. a notice for moving a motion of no confidence, against the petitioner, was given to the prescribed authority and the prescribed authority therefore, fixed 10/5/1997, as the dale for the meeting, to consider the motion as required by rule 3 of the 'madhya pradesh panchayat (gram panchayat ke sarpanch tatha up- sarpanch, janapad panchayat tatha zila panchayat ke president tatha vice-president ke virudh avishwas prastav) niyam, 1994 framed under section 95(1) read with sub-section (2) of section 21, sub-section (2) of section 28 and sub-section (2) of section 35 of the act (hereinafter referred to as the 'no confidence motion rules'). shri c. l. markandia, naib tehsildar, janjgir was appointed to preside over the meeting as required by rule 4 of the said rules. in the meeting, to consider the said motion, 15 votes were given for the motion while 5 against it and one vote was declared invalid. since 15 votes out of 21 members present and voting did not constitute the requisite 3/4th majority as per section 21(1), the motion was declared to have fallen. against the said motion, an appeal was filed by the respondent no. 5, up-sarpanch of the gram panchayat, before the collector which was allowed by order annexure-p/1 and the collector held, on examination of the vote declared invalid by the prescribed officer, that the vote was valid and was for the motion with the result, the no confidence motion was clearly carried by 16 votes for the motion as against 5 which constituted the requisite majority. the petitioner preferred an appeal before the commissioner, bilaspur division, which was dismissed by order annexure-p/2 and the commissioner held that the order of the collector was in accordance with law.2. the learned counsel for the petitioner has submitted that after insertion of sub-section (4) of section 21, a dispute against the no confidence motion could be referred only by the sarpanch or the up-sarpanch who desires to challenge the validity of the motion carried out under sub-section (1) of section 21 of the act and the decision of the collector thereon has been attached finality. on a motion of no confidence having failed against the sarpanch, the up-sarpanch had no authority to raise dispute under sub- section (4) of section 21 and the order of the collector was, therefore, without jurisdiction. learned counsel has also submitted that the symbol assigned in the vote declared invalid was not in conformity with the provisions of no confidence rules with the result, the prescribed officer had rightly declared the vote to be invalid and the collector, therefore, committed a gross error in treating the said vote as valid and on that basis declaring the motion of no confidence as having been passed.3. learned counsel for the respondents, in controversion, has submitted that the appeal was filed by the respondent no. 5 under the provisions of the appeal and revision rules and not in the nature of a dispute under section 21(4) of the act and even assuming that the appeal under the said rules did not lie against the fall of a no confidence motion, the collector had the requisite jurisdiction and authority under rule 5 of the appeal and revision rules, to examine the regularity of the proceedings of the authority sub- ordinate to him and to pass the said order. learned counsel for the respondent no. 5 has further submitted that on a visual examination of the vote declared invalid by the prescribed officer, it was apparent that the presiding officer had erred as the vote clearly indicated that the same had been cast in favour of the motion.4. in view of the contention raised by the parties, the questions that fall for determination is whether the collector had the jurisdiction and authority to entertain the appeal filed by the respondent no. 5 and if so, whether a second appeal was maintainable before the commissioner under the said appeal and revision rules. the ancillary question that arises is whether the collector, if he did not possess appellate jurisdiction, had the power to consider the validity of the minutes relating to the said no confidence motion in the exercise of the power of revision under rule 5 of the appeal and revision rules.5. section 21 of the act makes provisions for no confidence motion against sarpanch and up-sarpanch and lays down that 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 majority is more than two third of the total number of panchas constituting the gram panchayat, the sarpanch or up-sarpanch against whom such motion is passed, shall cease to hold office forthwith. the manner for convening such meeting shall be as prescribed and the meeting shall be presided over by an officer of the government as the prescribed authority may appoint. the no confidence motion rules, 1994 prescribe the manner in which the notice shall be given to move a motion of no confidence against sarpanch or up-sarpanch and for fixing the date, time and place for the meeting of the panchayat by the prescribed authority and the appointment of presiding officer. rule 5 lays down the procedure for conduct of the meeting. sub-section (4) was inserted in section 21 by an amendment in the act which reads as follows :--'section 21(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.'6. 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) of section 21. the expression 'carried out' employed in sub-section (4) can only mean the consequence provided in sub- section (1) of section 21 which clearly indicates that it is only against a motion of 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. in the present case, the motion of no confidence was declared by the presiding officer as having not been passed for want of requisite majority of 3/4th of the panchas present and voting with the result, none had a right to file any dispute under sub-section (4) of section 21 of the act. learned counsel for the respondent no. 5 has, however pointed out by reference to order annexure-p/1 that the appeal filed by the respondent no. 5 was not in the nature of a dispute under sub-section (4) of section 21 but was under section 91 of the act. section 91 of the act provides that an appeal or revision against the orders or proceedings of a panchayat and other authorities under the act, shall lie to such authority and in such manner as may be prescribed. rules have been made under the said provision read with the powers conferred by sub-section (1) of section 95 of the act called the 'madhya pradesh panchayats (appeals and revision) rules, 1995. rule 3 provides for appeal and appellate authorities and reads as follows :-'rule 3 appeal and appellate authorities. - save where it has been otherwise provided in the act or rules or bye-laws made thereunder, an appeal shall lie -(a) in the case of an order passed by the sub-divisional officer under any provision of the act or rules or byelaws made thereunder to the collector.(b) in the case of an order passed by the collector under any provision of the act or rules or byelaws made thereunder to the commissioner.(c) in the case of an order passed by the commissioner or director of panchayats to the state government.(d) in the case of an order passed by the panchayat specified in column (1) of the table below to the authority specified in the corresponding entry in column (2) thereto.'7. the question, whether an appeal would lie under the said rule against the no confidence motion, had come up for consideration of this court in ram charan ahirwar v. sub-divisional officer, jatara, 1997 (ii) mpjr 357 and after examining in detail the provisions of the rules as also of section 21 of the act, hon'able c. k. prasad, j. recorded his conclusions in paragraphs 9 and 14 as follows : -'9. it is well settled that when in a statute different words are used, there is presumption that they are not used in the same sense. rule 3 of the appeal and revision rules has provided for appeal only against the order passed by the panchayat. rule making authority being aware of the fact that in the act words 'orders and resolution' have been separately used and then omission to incorporate the words resolution in rule 3 of the appeal and revision rules, in my opinion clearly shows that the resolution of no confidence motion has not been made appealable under rule 3 of the appeal and revision rules. section 21 of the gram panchayat act, 1993 makes it implicit that no confidence motion has to be adopted by a resolution and not by order.14. thus, i am of the considered view that resolution and order carry different and distinct meaning and no appeal shall lie under rule 3 of the appeal and revision rule to sub-divisional officer, against the resolution of no confidence passed by the gram panchayat. having held so, i am of the opinion that the petitioner has no other alternative remedy than to approach this court redressal of his grievance.'8. in view of the above conclusions, it is clear that an appeal was not maintainable against a no confidence motion whether carried or failed and the additional collector respondent no. 7, therefore, did not have any jurisdiction to entertain the same. the provisions contained in rule 3 provide for an appeal to the appellate authority against the order passed by the sub- ordinate authority enumerated therein under the provisions of the act or rules or byelaws. the allusion to the rules in rule 3 is not to the appeal and revision rules but to other rules under which such orders are passed with the result, an order passed in appeal under the provisions of rule 3 of the appeal and revision rules is not further appealable to the appellate authority by way of a second appeal. under these circumstances, no appeal against an order passed in appeal under rule 3 by the additional collector was maintainable before the commissioner with the result, even the appeal filed by the petitioner against the order annexure-p/1 of the additional collector was also incompetent and the additional commissioner had no jurisdiction to entertain such an appeal and pass the order (annexure-p/2). it is, therefore, clear that both the orders (annexure-p/1 and p/2) are without jurisdiction.9. learned counsel for the respondent no. 5 has urged that assuming that an appeal was not maintainable before the collector against the failure of a no confidence motion under section 21, the collector had the power under rule 5 of the appeal and revision rules, to entertain a revision on the application of any party for satisfying himself as to the legality or propriety of any order passed by the authority subordinate to it or as to the regularity of the proceedings and to pass such orders as he may think fit. rule 5 of the appeal and revision rules reads as follows :-'rule 5. revision. - (1) (a) the state government, the commissioner, the director of panchayat, the collector may on its/his own motion or on the application by any party, at any time for the purpose of satisfying itself/himself as to the legality or propriety of any order passed by or as to the regularity of the proceeding of, the authority subordinate to it/him call for and examine the record of any case pending before, or disposed of by, such authority and may pass such order in reference thereto as it/he may think fit:provided that it/he shall not vary or reverse any order unless notice has been served on the parties interested and opportunity given to them for being heard:provided further that no application for revision shall be entertained against an order appealable under the act.(b) an application for revision by any party shall only be entertained if it is on the point of law and not on facts.(2) notwithstanding anything contained in sub-rule (1) -(i) where proceedings in respect of any case have been commenced by the state government under sub-rule (i) no action shall be taken by other officer mentioned in the said sub-rule in respect thereof, and(ii) where proceedings in respect of any such case have been commenced by the officer mentioned in sub-rule (1), the state government may either refrain from taking any action under this rule in respect of such case until the final disposal of such proceeding by such officer or may withdraw such proceeding and pass such order as it may, deem fit.'10. the question whether a revision lies against the no confidence motion was considered by this court in shrinarayan laxman prasad tiwari v. state of m. p., 1998 (i) mplj 427, and it was held that a revision does not lie against the no confidence motion. 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 as to the regularity of the proceedings before such authority. a no confidence motion cannot be classified either as an order or as a proceeding. the learned counsel for the respondents has placed reliance on the decision in bal krishan patel v. brijendra patel, 1985 mplj 332. in the said case also it has clearly been held that the motion of no confidence is not an executive order and the proceedings of no confidence motion were not proceedings of any case pending or disposed of by any sub- ordinate authority. it was observed that in the enactment, which was considered in the said judgment, the power was granted to the collector and the additional collector to entertain a revision against a no confidence motion and to pass an order of stay. the situation in the present case is quite different. no specific power of revision has been granted in rule 5 against a no confidence motion. the no confidence motion, not being any proceeding in a case, is not amenable to the jurisdiction of the authority in exercise of the power of revision granted by rule 5. under these circumstances, the argument of the learned counsel that the order annexure-p/1 could be supported on the authority granted by rule 5 to exercise power of revision, has no substance.11. the last limb of the argument of the learned counsel for the respondent no. 5 is that even if it is held that the collector did not have the power to entertain an appeal or to exercise power of revision granted under the appeal and revision rules, the petitioner is not entitled to seek any relief under the power of superintendence when it is manifest that the impugned order, although without jurisdiction, rectifies a manifest error committed by the officer appointed to preside over the meeting of no confidence in declaring one vote invalid. learned counsel has invited attention to a decision of this court in sharada bai khatik v. state of m. p., 1997 (2) mplj 291 where in a similar situation where the intention of the voters was writ large leading to the irresistible conclusion that they had voted in favour of the motion of no confidence, the contention that the votes were invalid was held as not tenable. sub-rule (5) of rule 5 of the no confidence motion rules requires the member to affix the symbol (v)to vote in favour of the motion and to affix the symbol (x) to vote against the motion. in the present case, on visual examination of the vote declared invalid, the collector compared the symbol with the symbol affixed in the other ballot papers and found that the votes accepted as valid also contained more-or-iess a similar symbol as the vote held to be invalid. i find that when the collector had no jurisdiction to consider the matter either in his appellate jurisdiction or the power of revision, no reliance can be placed on the conclusions drawn by him. in any case, there is no material before this court nor any request for such examination has been made in the return of the respondent no. 5, to come to the conclusion that the presiding officer had committed any error in declaring one vote to be invalid. the decision in sharada bai khatik case (supra) was in relation to a case where the sarpanch against whom a no confidence motion was carried, had challenged its validity in a writ petition on the ground that although four votes were invalid, they were counted in favour of the no confidence motion. it was in the context of this allegation that this court had examined the original record and the ballot papers and had come to the conclusion that the symbols assigned in the disputed ballot papers clearly conveyed the intention that the vote was in favour of the no confidence motion. it was not a case where an authority having no jurisdiction had performed such an exercise and had arrived at such a conclusion as in the present case. under these circumstances, when it is patent that the orders annexure-p/1 and p/2 are totally without jurisdiction, the part of the order relating to the visual examination cannot be sustained. accordingly, both the orders annexure-p/1 and p/2 are quashed. in the facts and circumstances of the case, the parties are left to bear their respective costs. the petition is, thus allowed.

Judgment:
ORDER

S.K. Kulshrestha, J.

1. This petition challenges the order Annexure-P/1 dated 29-8-1997 passed by the Additional Collector, Bilaspur, in Case No. 40-B/128-96-97 under the provisions of Section 91 of the Madhya Pradesh Panchayat Raj Adhiniyam, 1993 (hereinafter referred to as the 'Act'), by which the no confidence motion has been held to have been duly passed against the petitioner, Sarpanch, Gram Panchayat Semra as also the order Anncxure-P/2 passed by the Additional Commissioner in Appeal under Rule 3 of the Madhya Pradesh Panchayats (Appeal and Revision) Rules, 1995 affirming the said order Annexure-P/1 and further seeks a declaration to the effect that the no confidence motion moved against the petitioner has failed. The petitioner was the elected Sarpanch of Gram Panchayat Semra. A notice for moving a motion of no confidence, against the petitioner, was given to the Prescribed Authority and the Prescribed Authority therefore, fixed 10/5/1997, as the dale for the meeting, to consider the motion as required by Rule 3 of the 'Madhya Pradesh Panchayat (Gram Panchayat Ke Sarpanch Tatha Up- Sarpanch, Janapad Panchayat Tatha Zila Panchayat Ke President Tatha Vice-President Ke Virudh Avishwas Prastav) Niyam, 1994 framed under Section 95(1) read with sub-section (2) of Section 21, sub-section (2) of Section 28 and sub-section (2) of Section 35 of the Act (hereinafter referred to as the 'No Confidence Motion Rules'). Shri C. L. Markandia, Naib Tehsildar, Janjgir was appointed to preside over the meeting as required by Rule 4 of the said Rules. In the meeting, to consider the said motion, 15 votes were given for the motion while 5 against it and one vote was declared invalid. Since 15 votes out of 21 members present and voting did not constitute the requisite 3/4th majority as per Section 21(1), the motion was declared to have fallen. Against the said motion, an appeal was filed by the respondent No. 5, Up-Sarpanch of the Gram Panchayat, before the Collector which was allowed by order Annexure-P/1 and the Collector held, on examination of the vote declared invalid by the Prescribed Officer, that the vote was valid and was for the motion with the result, the no confidence motion was clearly carried by 16 votes for the motion as against 5 which constituted the requisite majority. The petitioner preferred an appeal before the Commissioner, Bilaspur Division, which was dismissed by order Annexure-P/2 and the Commissioner held that the order of the Collector was in accordance with law.

2. The learned counsel for the petitioner has submitted that after insertion of sub-section (4) of Section 21, a dispute against the no confidence motion could be referred only by the Sarpanch or the up-Sarpanch who desires to challenge the validity of the motion carried out under sub-section (1) of Section 21 of the Act and the decision of the Collector thereon has been attached finality. On a motion of no confidence having failed against the Sarpanch, the Up-Sarpanch had no authority to raise dispute under sub- section (4) of Section 21 and the order of the Collector was, therefore, without jurisdiction. Learned counsel has also submitted that the symbol assigned in the vote declared invalid was not in conformity with the provisions of no confidence Rules with the result, the Prescribed Officer had rightly declared the vote to be invalid and the Collector, therefore, committed a gross error in treating the said vote as valid and on that basis declaring the motion of no confidence as having been passed.

3. Learned counsel for the respondents, in controversion, has submitted that the appeal was filed by the respondent No. 5 under the provisions of the Appeal and Revision Rules and not in the nature of a dispute under Section 21(4) of the Act and even assuming that the appeal under the said Rules did not lie against the fall of a no confidence motion, the Collector had the requisite jurisdiction and authority under Rule 5 of the Appeal and Revision Rules, to examine the regularity of the proceedings of the authority sub- ordinate to him and to pass the said order. Learned counsel for the respondent No. 5 has further submitted that on a visual examination of the vote declared invalid by the Prescribed Officer, it was apparent that the Presiding Officer had erred as the vote clearly indicated that the same had been cast in favour of the motion.

4. In view of the contention raised by the parties, the questions that fall for determination is whether the Collector had the jurisdiction and authority to entertain the appeal filed by the respondent No. 5 and if so, whether a second appeal was maintainable before the Commissioner under the said Appeal and Revision Rules. The ancillary question that arises is whether the Collector, if he did not possess appellate jurisdiction, had the power to consider the validity of the minutes relating to the said no confidence motion in the exercise of the power of Revision under Rule 5 of the Appeal and Revision Rules.

5. Section 21 of the Act makes provisions for no confidence motion against Sarpanch and Up-Sarpanch and lays down that 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 majority is more than two third of the total number of Panchas constituting the Gram Panchayat, the Sarpanch or Up-Sarpanch against whom such motion is passed, shall cease to hold office forthwith. The manner for convening such meeting shall be as prescribed and the meeting shall be presided over by an Officer of the Government as the Prescribed Authority may appoint. The no confidence motion Rules, 1994 prescribe the manner in which the notice shall be given to move a motion of no confidence against Sarpanch or Up-Sarpanch and for fixing the date, time and place for the meeting of the Panchayat by the Prescribed Authority and the appointment of Presiding Officer. Rule 5 lays down the procedure for conduct of the meeting. Sub-section (4) was inserted in Section 21 by an amendment in the Act which reads as follows :--

'Section 21(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.'

6. 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) of Section 21. The expression 'carried out' employed in sub-section (4) can only mean the consequence provided in sub- section (1) of Section 21 which clearly indicates that it is only against a motion of 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. In the present case, the motion of no confidence was declared by the Presiding Officer as having not been passed for want of requisite majority of 3/4th of the panchas present and voting with the result, none had a right to file any dispute under sub-section (4) of Section 21 of the Act. Learned Counsel for the respondent No. 5 has, however pointed out by reference to order Annexure-P/1 that the appeal filed by the respondent No. 5 was not in the nature of a dispute under sub-section (4) of Section 21 but was under Section 91 of the Act. Section 91 of the Act provides that an appeal or revision against the orders or proceedings of a panchayat and other authorities under the Act, shall lie to such authority and in such manner as may be prescribed. Rules have been made under the said provision read with the powers conferred by sub-section (1) of Section 95 of the Act called the 'Madhya Pradesh Panchayats (Appeals and Revision) Rules, 1995. Rule 3 provides for Appeal and appellate authorities and reads as follows :-

'Rule 3 Appeal and appellate authorities. - Save where it has been otherwise provided in the Act or rules or bye-laws made thereunder, an appeal shall lie -

(a) in the case of an order passed by the Sub-Divisional Officer under any provision of the Act or rules or byelaws made thereunder to the Collector.

(b) in the case of an order passed by the Collector under any provision of the Act or Rules or byelaws made thereunder to the Commissioner.

(c) in the case of an order passed by the Commissioner or Director of Panchayats to the State Government.

(d) in the case of an order passed by the Panchayat specified in Column (1) of the Table below to the authority specified in the corresponding entry in column (2) thereto.'

7. The question, whether an appeal would lie under the said rule against the no confidence motion, had come up for consideration of this Court in Ram Charan Ahirwar v. Sub-Divisional Officer, Jatara, 1997 (II) MPJR 357 and after examining in detail the provisions of the rules as also of Section 21 of the Act, Hon'able C. K. Prasad, J. recorded his conclusions in paragraphs 9 and 14 as follows : -

'9. It is well settled that when in a statute different words are used, there is presumption that they are not used in the same sense. Rule 3 of the Appeal and Revision rules has provided for appeal only against the order passed by the panchayat. Rule making authority being aware of the fact that in the Act words 'orders and resolution' have been separately used and then omission to incorporate the words resolution in Rule 3 of the Appeal and Revision Rules, in my opinion clearly shows that the resolution of no confidence motion has not been made appealable under Rule 3 of the Appeal and Revision Rules. Section 21 of the Gram Panchayat Act, 1993 makes it implicit that no confidence motion has to be adopted by a resolution and not by order.

14. Thus, I am of the considered view that resolution and order carry different and distinct meaning and no appeal shall lie under Rule 3 of the Appeal and Revision Rule to Sub-Divisional Officer, against the resolution of no confidence passed by the Gram Panchayat. Having held so, I am of the opinion that the petitioner has no other alternative remedy than to approach this Court redressal of his grievance.'

8. In view of the above conclusions, it is clear that an appeal was not maintainable against a no confidence motion whether carried or failed and the Additional Collector respondent No. 7, therefore, did not have any jurisdiction to entertain the same. The provisions contained in Rule 3 provide for an appeal to the appellate authority against the order passed by the sub- ordinate authority enumerated therein under the provisions of the Act or rules or byelaws. The allusion to the rules in Rule 3 is not to the Appeal and Revision Rules but to other rules under which such orders are passed with the result, an order passed in Appeal under the provisions of Rule 3 of the Appeal and Revision Rules is not further appealable to the appellate authority by way of a second appeal. Under these circumstances, no appeal against an order passed in appeal under Rule 3 by the Additional Collector was maintainable before the Commissioner with the result, even the appeal filed by the petitioner against the order Annexure-P/1 of the Additional Collector was also incompetent and the Additional Commissioner had no jurisdiction to entertain such an appeal and pass the order (Annexure-P/2). It is, therefore, clear that both the orders (Annexure-P/1 and P/2) are without jurisdiction.

9. Learned counsel for the respondent No. 5 has urged that assuming that an appeal was not maintainable before the Collector against the failure of a no confidence motion under Section 21, the Collector had the power under Rule 5 of the Appeal and Revision Rules, to entertain a Revision on the application of any party for satisfying himself as to the legality or propriety of any order passed by the authority subordinate to it or as to the regularity of the proceedings and to pass such orders as he may think fit. Rule 5 of the Appeal and Revision Rules reads as follows :-

'Rule 5. Revision. - (1) (a) The State Government, the Commissioner, the Director of Panchayat, the Collector may on its/his own motion or on the application by any party, at any time for the purpose of satisfying itself/himself as to the legality or propriety of any order passed by or as to the regularity of the proceeding of, the authority subordinate to it/him call for and examine the record of any case pending before, or disposed of by, such authority and may pass such order in reference thereto as it/he may think fit:

Provided that it/he shall not vary or reverse any order unless notice has been served on the parties interested and opportunity given to them for being heard:

Provided further that no application for revision shall be entertained against an order appealable under the Act.

(b) An application for revision by any party shall only be entertained if it is on the point of law and not on facts.

(2) Notwithstanding anything contained in sub-rule (1) -

(i) Where proceedings in respect of any case have been commenced by the State Government under sub-rule (I) no action shall be taken by other Officer mentioned in the said sub-rule in respect thereof, and

(ii) Where proceedings in respect of any such case have been commenced by the Officer mentioned in sub-rule (1), the State Government may either refrain from taking any action under this rule in respect of such case until the final disposal of such proceeding by such officer or may withdraw such proceeding and pass such order as it may, deem fit.'

10. The question whether a Revision lies against the no confidence motion was considered by this Court in Shrinarayan Laxman Prasad Tiwari v. State of M. P., 1998 (I) MPLJ 427, and it was held that a Revision does not lie against the no confidence motion. 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 as to the regularity of the proceedings before such authority. A no confidence motion cannot be classified either as an order or as a proceeding. The learned counsel for the respondents has placed reliance on the decision in Bal Krishan Patel v. Brijendra Patel, 1985 MPLJ 332. In the said case also it has clearly been held that the motion of no confidence is not an executive order and the proceedings of no confidence motion were not proceedings of any case pending or disposed of by any sub- ordinate authority. It was observed that in the enactment, which was considered in the said Judgment, the power was granted to the Collector and the Additional Collector to entertain a Revision against a no confidence motion and to pass an order of stay. The situation in the present case is quite different. No specific power of Revision has been granted in Rule 5 against a no confidence motion. The no confidence motion, not being any proceeding in a case, is not amenable to the jurisdiction of the authority in exercise of the power of Revision granted by Rule 5. Under these circumstances, the argument of the learned counsel that the order Annexure-P/1 could be supported on the authority granted by Rule 5 to exercise power of Revision, has no substance.

11. The last limb of the argument of the learned counsel for the respondent No. 5 is that even if it is held that the Collector did not have the power to entertain an appeal or to exercise power of Revision granted under the Appeal and Revision Rules, the petitioner is not entitled to seek any relief under the power of Superintendence when it is manifest that the impugned order, although without jurisdiction, rectifies a manifest error committed by the Officer appointed to preside over the meeting of no confidence in declaring one vote invalid. Learned counsel has invited attention to a decision of this Court in Sharada Bai Khatik v. State of M. P., 1997 (2) MPLJ 291 where in a similar situation where the intention of the voters was writ large leading to the irresistible conclusion that they had voted in favour of the motion of no confidence, the contention that the votes were invalid was held as not tenable. Sub-Rule (5) of Rule 5 of the no confidence motion Rules requires the member to affix the symbol (v)to vote in favour of the motion and to affix the symbol (X) to vote against the motion. In the present case, on visual examination of the vote declared invalid, the Collector compared the symbol with the symbol affixed in the other ballot papers and found that the votes accepted as valid also contained more-or-Iess a similar symbol as the vote held to be invalid. I find that when the Collector had no jurisdiction to consider the matter either in his appellate jurisdiction or the power of revision, no reliance can be placed on the conclusions drawn by him. In any case, there is no material before this Court nor any request for such examination has been made in the Return of the Respondent No. 5, to come to the conclusion that the Presiding Officer had committed any error in declaring one vote to be invalid. The decision in Sharada Bai Khatik case (supra) was in relation to a case where the Sarpanch against whom a no confidence motion was carried, had challenged its validity in a Writ Petition on the ground that although four votes were invalid, they were counted in favour of the no confidence motion. It was in the context of this allegation that this Court had examined the original record and the ballot papers and had come to the conclusion that the symbols assigned in the disputed ballot papers clearly conveyed the intention that the vote was in favour of the no confidence motion. It was not a case where an authority having no jurisdiction had performed such an exercise and had arrived at such a conclusion as in the present case. Under these circumstances, when it is patent that the orders Annexure-P/1 and P/2 are totally without jurisdiction, the part of the order relating to the visual examination cannot be sustained. Accordingly, both the orders Annexure-P/1 and P/2 are quashed. In the facts and circumstances of the case, the parties are left to bear their respective costs. The petition is, thus allowed.