(1.) INVOKING the extra-ordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India the petitioner has prayed for issue of a writ of certiorari for quashment of the notice dated 22-9-2001, Annexure P-3, issued by the Sub-Divisional Officer-cum-competent authority, the respondent No. 2 herein, calling for meeting for no-confidence motion, against the petitioner on 5-10-2001 and to pass such other order/orders as may be deemed fit and proper in the facts and circumstances of the case.

(2.) THE facts as have been unfolded are that the petitioner is the elected Sarpanch of the Gram Panchayat Paharia, Block and Tehsil Pali, District Umaria. A motion of no-confidence was mooted against by some of the Panchs and on the basis of their requisition the competent authority fixed the meeting on 3-9-2001 in the office of the Gram Panchayat Paharia, Block and Tehsil Pali in the District of Umariya. The competent authority appointed the Naib Tehsildar, Pali, the respondent No. 3, herein, as the Presiding Officer of the meeting. As pleaded on the date fixed the meeting was convened and no-confidence motion was initiated by the Presiding Officer. The ward members of the Gram Panchayat boy-catted the motion of no-confidence as a result of which the motion failed and the Presiding Officer passed the decision in that regard as contained in Annexure P-2. Despite of the failure of the no-confidence motion the respondent No. 2 issued a notice for initialing a fresh proceeding and fixed the date to 5-10-2001.

(3.) IT is urged in the writ petition that action of the respondent No. 2 is impermissible in law as per the Section 21 of the M. P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as the). Section 21 (3) clearly stipulates that no-confidence motion shall not lie against the Sarpanch or Up-sarpanch within a period of one year from the date of which the previous motion of no-confidence was rejected.

(4.) A return has been filed by the respondents contending, inter alia, that the meeting for consideration of no-confidence motion was called on 3-9-2001 but on the said date the no-confidence motion was not considered which is apparent from the finding recorded by the Presiding Officer. The order passed by the prescribed authority has been brought on record as Annexure P-1. It is further putforth that the proceeding which has been recorded by the respondent No. 3 clearly demonstrates that the motion was not moved and in fact which was required to take place under Section 21 of thedid not happen and hence, it can not be construed that motion of no-confidence was rejected.

(5.) I have heard Mr. S. K. Garg, learned Counsel for the petitioner and Mr. P. D. Gupta, learned Dy. Advocate General for the State.

(6.) IT is submitted by Mr. Garg, learned Counsel for the petitioner that unless a motion is passed by the members present and a resolution is drawn up it is to be presumed that the motion of no-confidence was rejected. It is canvassed by him that as the members did not participate in the meeting and boy-cotted the same there can be only one irresistible conclusion that the motion of no-confidence did not meet with the success and such an event would come within Section 21 (3) of theand, therefore, no further no-confidence motion could be initiated against the petitioner within a period of one year as the same has been prohibited in the statute.

(7.) COMBATTING the aforesaid submissions Mr. Gupta, learned Dy. Advocate General for the State has urged that the documents which have been brought on record would go a long way to show that the meeting did not take place as there was some discussion by the Presiding Officer in relation to grant of permission to a member who arrived late and, therefore, the members being dissatisfied with decision of the Presiding Officer left the meeting place and in a circumstance like this it can not be presumed that the meeting was held and the motion of no-confidence was rejected.

(8.) TO appreciate the rival submissions raised at the Bar, I have carefully perused the order passed by the respondent No. 3. The said order reflects that the members did not participate in the meeting as there was some difference of opinion between the Presiding Officer and the members present. I have perused the documents which have been brought on record by the respondents. Th said order has been passed by the competent authority who has taken note of the order passed by the Naib Tehsildar, the Presiding Officer. On a perusal of the documents in entirety it is manifest that the Naib-Tehsildar commenced the meeting at 12:00 Oclock and at that time eight members were present. After half an hour another member Kamal Bai came and intimated that she could not come within the time as she was detained by some persons. The Presiding Officer was not inclined to grant her permission to participate in the meeting. This led to dispute between the Presiding Officer and the members who were present. The members did not want that the meeting should take place where Kamal Bai would be deprived to vote. An application thereafter was filed before the competent authority to indicate that Kamal Bai appeared in the meeting hall 10:00 minutes late after the meeting started and she explained that she could not come earlier as she was detained by some interest persons. Thus the competent authority came to hold that there was no meeting on the date fixed and directed for further meeting to be held.

(9.) THE moot question that arises for consideration is whether in the instant case it can be concluded that the no-confidence motion had taken place and meeting remained successful. In this context, I may profitably reproduce Section 21 of the. It reads as under:-

"21. No-confidence motion against Sarpanch and Up-Sarpanch.-- (1) On a motion of no-confidence being passed by the Gram Panchayat by a resolution passed by majority of not less than three fourth of the panchs present and voting and such majority is more than two third of the total number of panchs constituting the Gram Panchayat for the time being, the Sarpanch or Up-Sarpanch against whom such motion is passed, shall cease to hold the office forthwith. (2) No-confidence motion shall not lie against the Sarpanch or Up-Sarpanch within a period of- (i) one year from the date on which the Sarpanch or Up-Sarpanch enter their respective office; (ii) six months preceding the date on which the term of office of the Sarpanch or Up-Sarpanch, as the case may be, expires; (iii) one year from the date on which previous motion of no-confidence was rejected. (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. "

Sub-sections (2) and (3) are to be read in proper perspective so that a purposeful meaning can be given to the said provision. Sub-section (2) stipulates that such meeting shall be convened in such a manner as may be prescribed and shall be presided over by the officer of the Government as the prescribed authority appoint. This rule enables the Sarpanch or Up-Sarpanch to have a right to speak at or otherwise to take part in the proceeding of the meeting. Sub-section (2) clearly stipulates that no-confidence motion shall not lie if the previous motion of no-confidence was rejected. A set of Rules namely, 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 Rules) has been framed as required under the. Rule 3 of the Rules deals with the notice. Rule 4 of the Rules deals with the appointment of the Presiding Officer. Rule 5 of the Rules deal with the conduct of the meeting. It is apposite to reproduce the Rule 5 which reads as under:-

"5. Conduct of meeting.-- (1) The Presiding Officer shall record the attendance of the members of the Panchayat present at the meeting. (2) *** *** *** *** *** (3) The Presiding Officer shall ask any of the signatories to the notice to move the motion. (4) After the motion is moved the mover shall first speak on the motion and thereafter other members may, if they so desire, speak on the motion. (5) On the conclusion of the debate on the motion, the Presiding Officer shall call the members present in the meeting one by one and shall give them ballot paper duly signed by him to indicate its authenticity, to cast his vote for or against the motion. The members who wants to vote in favour of the motion shall affix the symbol (andradic;) and the members who want to vote against the motion shall affix the symbol x. After the member has recorded his vote, he shall fold the ballot paper to maintain secrecy and put it in the ballot box kept on the table of the Presiding Officer. (6) After the voting is over, the Presiding Officer shall take out the ballot papers from the ballot box and sort out the votes for and against the motion. If the number of votes in favour of the motion fulfils the requirement of sub-section (1) of Section 21, sub-section (1) of Section 28, or sub-section (1) of Section 35, as the case may be, the Presiding Officer shall declare that the motion of no-confidence is passed. "

If the proceeding that took place on the date fixed is appreciated on the anvil of the aforesaid relevant provisions it does not appear that the Presiding Officer had acted in accordance with the Rules and proceeded to a certain stage from which a positive conclusion can be arrived at that the meeting had convened and attained the finality. As is apparent, there was slight delay on the part of the one of the Panchs and a debate went on for some time whether she should be allowed to participate in the meeting or not and thereafter a difference of opinion between the Presiding Officer and the members present arose and the meeting could not be held. Thus it can not be presumed that the meeting which was convened for passing a resolution in relation to motion of no-confidence met with failure. Submission of Mr. Garg is that when the Panchs did not participate in the meeting and boy-cotted the same there can be but one conclusion that the motion of no-confidence was rejected. The aforesaid submission on a first look appears to be quite attractive but on a deeper scrutiny pales into insignificance. It is not a case where the members refused to cast their votes or left the meeting with a view not to vote because of lack of quorum. It is a case where voting had not commenced. The member who came slightly late had come before anything substantial had commenced. In view of this, I am of the considered opinion that the contentions raised by Mr. Garg are sans substance.

(10.) IN the result, I do not find any error in the notice issued by the Prescribed Authority inasmuch as he has rightly held that the meeting held on the date fixed did not lead to conclusion that the motion of no-confidence was rejected and, therefore, the bar created under Section 21 (3) would not come into play. The findings recorded by the said authority are absolutely impeccable and hence, I have no hesitation in giving approval to the same. Thus, the writ petition, being devoid of merit, stands dismissed without any order as to costs.