C.K. Prasad, J.

By this writ application the petitioner, who is an elected Sarpanch of the Gram Panchayat Vrishbhanpura, has challenged the resolution of Gram Panchayat dated 19.4.1996, whereby the motion of no confidence against the petitioner, has been carried out.

Short facts, necessary for the decision of the present writ application, are that, the petitioner was an elected Sarpanch of Gram Panchayat Vrishbhanpura. For the purpose of consideration of the motion of no confidence, a meeting of the Gram Panchayat was held on 19.4.1996 and the same was presided over by the Naib Tahsildar. In the said meeting the no confidence motion was passed by required majority and the same was determined by raising of hands of the members. The minute of the meeting of Gram Panchayat dated 19.6.1996 (Annexure P-1), impugned in the present petition inter-alia shows that in the meeting 11 members raised their hands in support of the no confidence motion and accordingly the no confidence motion was carried out.

Counsel for the petitioner submits that the aforesaid procedure for voting on a no confidence motion is not sanctioned by law and the procedure adopted, renders the motion passed non-est in the eye of law.

Learned counsel for the respondents have, however raised a preliminary objection regarding the maintainability of the present writ application. Their submission is that the petitioner has an alternative remedy, by way of filing an appeal before the appellate authority under rule (3) of the M. P. Panchayat (Appeal and Revision) Rules 1995 (hereinafter referred to as Appeal and Revision Rules) which read as under.

Appeal and appellate authorities-Save where it has been otherwise provided in the Act or rules or byelaws 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 bye laws 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 bye laws made thereunder - to the Commissioner.

(c) in the case of an order passed by the Commissioner or Director of Panchayat 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.

TABLE

(1)

(2)

(a)

Gram Panchayat

Sub Divisional Officer.

(b)

Janpad Panchayat

Collector

(3)

Zila Panchayat

Commissioner

By referring to the aforesaid rule, the learned counsels for the respondents contended that as the order has been passed by the Gram Panchayat, appeal shall lie before the Sub-Divisional Officer. In their submission, as the petitioner has an statutory alternative remedy, by tiling an appeal before the Sub-Divisional Officer, the writ petition deserves to be dismissed on this ground alone. However, learned counsel for the petitioner contends that the motion of no confidence passed against the petitioner cannot be equated with an order passed by the Gram Panchayat and as such the forum of appeal as provided under Rule 3 of the Appeal and Revision Rules does not come in the way of the petitioner in approaching this Court, directly.

Section 91 of the M.P. Panchayat Raj Act, 1993 provides for appeal or revision against the order or proceedings of a Panchayat and other authorities to such authorities and in the manner, as may be prescribed. It is relevant here to state that, Appeal and Revision Rules has been framed in purported exercise of the power under section 95 (1) r/w section 91 of the M. P. Panchayat Raj, 1993 (hereinafter referred to as the Act). It is worth while mentioning here that section 95 of the Act confers power on the State Government to make rules for carrying out the purpose of this Act. Section 91 of the Act, however, provides for making the provision for the appellate revisional authority before whom appeal of revision would lie against the orders or proceedings of a panchayat. Section 91 of the Act reads as follows:-

91. Appeal and revision:-An appeal or revision against the orders or proceedings of a panchayat and other authorities under this Act, shall lie to such authority and in such manner as may be prescribed.

Under Rule 3 of the appeal and Revision Rules, appeal against an order passed by the Gram Panchayat lies before the Sub-Divisional Officer, although section 91 of the Act uses the expression order or proceedings also.

The core question, which requires determination is as to whether the resolution of the Gram Panchayat carrying out the motion of no confidence against Sarpanch, comes within the expression Order of the Gram Panchayat. It is relevant here to state that motion of no confidence is required to be passed by a resolution, which would be apparent from reading of section 21 of the Act. Section 21 of the Act reads as follows:-

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 panchas present and voting and such majority is more than two third of the total number of Panchas constituting the Gram Panchayat for the time being the Sarpnach or Up-Sarpanch against whom such motion is passed, shall cease to hold office forth with.

(2) not withstanding anything contained in this Act or the rules made thereunder a Sarpnach or an Up-Sarpanch shall not preside over a meeting in which a motion of no confidence is discussed against him. Such meeting shall be not convened in such manner as may be prescribed and shall be presided over by an officer of the Government as the Prescribed Authority may apoint. The Sarpanch or the Up-Sarpanch, as the case may be, shall have a right to speak at, or otherwise to take part in proceeding of the meeting.

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

(i) one year from the dale of which the sarpanch or up-sarpanch enter their respective office;

(ii) six months proceeding 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 dale on which previous motion of no confidence was rejected.

As stated earlier, section 21 of the Act contemplates of passing of the no confidence motion by a resolution and section 85 of the Act gives powers to the State Government or the prescribed authority to suspend the execution of any resolution, order issued etc. in certain contingencies. In section 85 of the Act the words resolution and order have been used. This clearly indicates that legislature considered the resolution and order of the Gram Panchayat to be different and distinct etc Further in my opinion, the words resolution cannot be equated with the term order. The resolution in my opinion, connotes formal expression of the opinion, will of any official body for a public assembly adopted by vote as a legislative resolution.

It is well settled that when in as 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.

Here I must answer and ancillary submission of Shri Nagu, representing the State, that section 91 of the Act. although uses the expression orders or proceedings, Appeal and Revision Rule, framed under the aforesaid Act do not use the expression proceedings but the same has to be read in Rule 3 of the Appeal and Revision Rules. It is submitted that it is apparent omission and this Court is not precluded from substituting the word proceeding in Rule 3 of the aforesaid Rule. There is no quarrel about the proposition that-

Where the alternative lies between either supplying by implication words which appear to have been accidentally omitted, or adopting a construction which deprives certain existing words of all meaning. It is permissible to supply the words. A departure from the rule of literal construction may be legitimate so as to avoid any part of the statute becoming meaningless. Words may also be read to give effect to the intention of the legislature which is apparent from the Act read as a whole. Application of the mischief rule or purposive construction may also enable reading of words by implication when there is no doubt about the purpose which the Parliament intended to achieve. But before any words are read to repair an omission in the Act; it should be possible to state with certainty that these words would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law.

Source: Principle of statutory Interpretation by Justice G.P. Sing, Sixth Edition at page 51.

Here in the present case, I do not find any compelling reason to read the word resolution in the order. In my opinion section 91 of the Act uses the expression order or proceeding and the rule making authority having provided for appeal against the order of the Gram Panchayat clearly shows that omission is not accidental but deliberate, prohibiting appeal against the order.

When approached from yet another angle, one reaches the same conclusion. Section 85 of the, Act confers power on the State Government or the Prescribed Authority to suspend the execution of any resolution passed, order issued etc., on fulfillment of certain condition. Section 85 of the Act reads as follows:-

85. power to suspend execution of orders, etc. - (1) The State Government or the prescribed authority may by an order in writing and for reasons to be stated therein suspend the execution of any resolution passed, order issued, licence or permission granted or prohibit the performance of any act by a panchayat, if in his opinion.-

(a) such resolution, order, licence, permission or act has not been legally passed, issued, granted or authorised;

(b) such resolution, order licence, permission or act is in excess of the powers conferred by this Act or is contrary to any law; or

(c) the execution of such resolution or order, or the continuance in force of such licence or permission or the doing of such act is likely-

(i) to cause loss, waste or mis application of any money or damage to any property vested in the panchayat;

(ii) to be prejudicial to the public health, safety or convenience;

(iii) to cause injury or annoyance to the public or any class or body of persons: or

(iv) to lead to a breach of peace. (2) Whenever an order is made by the prescribed authority under Sub-section (1) it shall forthwith and in no case later than ten days from the date of order, forward to the State Government a copy of the order with the statement of the reasons for making it, and the State Government may confirm, set aside or modify such order as it may deem fit.

A reading of the aforesaid provision makes it plain that the State Govt. or the prescribed authority can suspend the execution of resolution, order etc., in case condition precedent for exercise of such power exist. The order of the prescribed authority is however, subject to confirmation. To me it appears that when power has been given to the State Government and the prescribed authority for suspending the resolution of the Gram Panchayat, the rule making authority purposely did not make provision for appeal against the order of the Panchayat.

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 of the opinion that the petitioner has no other alternative remedy than to approach this Court redressal of his grievance.

It is common ground that matter pertaining to motion of no confidence against the Sarpanch of the Gram Panchayat is governed by M.P. Panchayat (Gram Panchayat Ke Sarpanch Tatha Up Sarpanch, Janpad Panchayat Tatha Zila Panchayat Ke President Tatha Vice President Ke Viruddh Avishwas Prastav) Niyam, 1994 (hereinafter referred to as the rule)". The petitioner complains violation of Rule 5 (5) of the aforesaid Rules which reads as follows:-

5 (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 athenticity, to cast his vote for or against the motion. The member who wants to vote in favour of the motion shall affix the symbol (sic) and the member who wants 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.

Under rule 5 (6) of the Rule alter the voting is over the Presiding Officer is required to take out the ballot papers from the ballot box and sort out the votes for and against the motion and in case it fulfils the requirement as contemplated under the provision of M.P. Panchayat Raj Act, 1993 the presiding officer shall declare that the motion of no confidence is passed.

Learned counsel for the petitioner submits that the procedure as prescribed in Rule 5 (5) of the aforesaid Rules has been thrown to winds and the impugned resolution has been passed in its total disregard. It is further submitted that the meeting has to be conducted in the manner prescribed and there cannot be any deviation from the procedure laid down. It is contended that the deviation is not permissible even by majority of the members. A reading of minute of the proceedings do indicate that motion of no confidence was passed by raising of hands.

Having considered the rival submission of the parties, I am of the view that the meeting has to be conducted in the manner prescribed under the rule and the same cannot be deviated even by majority. The rule having provided procedure in such a great detail, the majority cannot be permitted to violate the rule. The object of voting on a no confidence motion by affixing symbol on a ballot papers is to maintain secrecy, which in apparent from the rule itself. The secrecy of votes is of paramount importance and it cannot be whittled down by any means including by majority of members, for proper functioning of democracy. The procedure adopted by the Presiding Officer, shall certainly expose the secrecy of the votes. In view of the underlying principle of voting by ballot i.e. to maintain secrecy. I am of the considered view that the mode adopted by the Presiding Officer is in teeth of Rule 5 (5) of the Rules. It is well settled that when a statute provides for a mode of doing an act, it has to be done in the same manner and no other mode is permissible. Learned counsel for the respondent, however, submit that the whole object of the rule is to elicit opinion of the member and that having been obtained by raising of hands, the motion of no confidence cannot be held to be illegal or vitiated. In view of what I have held earlier this is not permissible. Voting has to be done in the manner prescribed. The resolution of no confidence motion passed against the petitioner is in teeth of Rule 5 (5) of the rules and the same cannot be sustained.

For the view I have taken. I am fortified by a Full Bench Judgment of this Court in the case of Prabhulal Vs. Gram Panchayat, Guradiya & Ors. 1986 J.L.J. wherein a converse case, this Court has held as follows :

The question thus remains to be considered is whether the Act and relevant Rules contemplated voting by secret ballot when the resolution of no confidence comes up for consideration. S. 18 (1) of the Act which has been referred to above inter alia uses the words voting and does not give out that the voting has to be by ballot Rule 6 (2) (ii) of the Rules requires that in the minutes the number of votes for and against such motion of no confidence and names of those who have remained neutral have to be recorded. It has further been laid down in the same paragraph that S.62 of the M.P. Municipalities Act impliedly prohibits such a method of voting. It was further observed that the Municipalities Act, 1961 far from expressly or impliedly authorising the mode of voting by ballot prohibits that mode as a necessary implication of S.62. The Division Bench in Sojharmals case (supra) had also laid down that the settled rule in regard to mode of voting is that where a statute prescribes the mode in which the note of a body is to be taken, then that method must be followed and failure to comply with the same is fatal to any action taken and that if the mode of voting is not prescribed then the method of voting by show of hands, followed if necessary by poll must prevail.

Learned counsel for the petitioner all the time emphasised that the petitioner being a Harijan she is being subjected to harassment and in case this Court finds that the motion of no confidence was passed in illegal way, after declaring the same to be so, this Court should not give any further direction. Learned counsel for the respondent, however, submits that such a direction is necessary as the no confidence motion, if quashed by this Court shall be projected by the petitioner to be rejection of no confidence motion and, therefore, she will contend that motion of no confidence does not lie against her before stipulated time.

Needless to state that when no confidence motion passed against the petitioner is quashed on the ground of infraction of rule, it cannot be said that motion has been rejected and the bar of time to consider fresh no confidence motion shall not arise.

In the result, application is allowed, impugned resolution of no confidence motion is hereby quashed and the respondents shall proceed in the matter in accordance with law from a point earlier than passing of the resolution. However, in the facts and circumstances of the case, there shall be no order as to costs.