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• M.P. PANCHAYAT RAJ & GRAMSWARAJ ACT, 1993 NIi)
. '15
SUPPLEMENT - MAY, 2015
THE MADHYA PRADESH PANCHAYAT RAJ AVAM
GRAM SWARAJ (SANSHODHAN) ACT, 2014
(M.P. Act 23 of 2014) .
[Pub. in M. P. Gaz. (Ext. Ord.r, dt. 30-12-2014, pg. 1280(1). Came into force from 29-10-2014 by M.P. Ordinance 10 of2014.] In Section 36, on book page (PA)71 & 72, in sub.section (1),-
(i) after clause (cc), the following clause inserted, namely:-
"(cd) has any dues, payable to the Madhya Pradesh State Electricity Board or its successor companies, standing against him name for a period ex~eeding six months on the first day of the month in which the election has been notified; or;
(ii) clause (h) shall be omitted. .cr M.P. GRAM PANCHAYAT (REGISTRATION OF COLONIZER,
TERMS AND CONDITIONS) RULES, 1999
Given on book' page (PR)459, are repealed by the following new Rules:-
MADHYA PRADESH GRAM PANCHAYAT
(DEVELOPMENT OF COLONIES) RULES, 2014
CHAPTER.!
Preliminary
1. Short title, extent, commencement and application.
2. Definitions. CHAPTER-II
Registration
3. Registration of Colonizer.
4. Registration fee.
5. Disqualification for registration.
6. Maintenance of Register. .
7. Cancellation of Registration Certificate. 8.. Appeal.
,
CHAPTER-Ill' ..•.P,eJ'IDiBBion.for~velopmentof Colony
9. Application for the development ofthe colony and. license fee.
10. Layout of proposed colony.
11. Jtrovision of pl!>ts or dwelling units forE~onomically Weaker
12. Shelter Fees.
13. Additional Shelter Fees.
14. Depositing of Shelter Fee.
• ••'W
B.
hei's, the lY loss or we crept
1
15. Sale of Plots Reserved for Economic9.11yWeaker Sections and Lower Income Groups.
16. Mechanism for Mortgage of Plots /Dwelling Units. wI
17. Removal of difficulties in determining guideline rates. frc
18. General Conditions. 20
19. Period for completion of the internal development works of thecolony.
20. Release of Mortgage. gi' CHAPTER-N
Management of Illegal Colony
21. Management of the colony.
22. Relaxation.
23. Interpretation.
24. Repeal. -- - t.
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• N(Ii) M.P. PANCHAYAT RAJ & GRAM SWARAJ ACT. 1993 ;.
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MADHYA PRADESH GRAM PANCHAYAT
(DEVELOPMENT OF COLONIES) RULES, 2014
Notfn. No. F-16-11 /2013/22/P_2, dated 24-12.2014, Pub. in M.P. Raj- ". patra (Asadharan), dated 24-12,2.Q14, p. 1254(20).-In exerciSe .of the ...; powers conf-erredbyslib secHon'(1) of section 95 read with section 6I-A to ..I 6I-E of the Madhya Pradesh Panchayat Raj Avam Gram.Swaraj .Ad-. '; hiniyam, 1993 (No.1 of 1994), the State Government hereby, makes the i,1 following rules, the same having been previously published in the Madhya , Pradesh Gazette (Extra- ordinary) dated 1st March, 2014 as required by .1 sub-section (3) of section 95 of the said Act, namely:- , CHAPTER-I
, Preliminary
. 1. Short title, ext!"nt, cOmmencement and application.--(I) These _ Rules mayoe c9.1led'theMadhya Pradesh Gram Panchayat (Developmentof Colonies) Rules, 2014.
(2) They shall extend to the entire State of Madhya Pradesh.
(3) They sh9.11come into force with effect from the date of their 'publication in the Madhya Pradesh Gazette.
(4) These Rules sh9.11be applicable to the Gram Panchayat areas ofMadhya Pradesh .
. 2. Definitions.-In these rules, unless the context otherwise .re- qu~res,-
. (a) "Act" means tne'Madnya Pradesh Panchayat Raj.Avam Gram Sw~aj Adhiniyam, 1993 (No.1 of 1994); . _ ..
" .' (b) "Addition9.1shelter fee" means the fee levied and collected in lieu of
" ' .•:cinaintenance' of external development work; ~ (c)"Competent Authority" means in those district, in which constituted Municip9.1Corporation is existed, the Collector of those district and Sub Divisional Officer (Revenue) for other districts in their jurisdiction;
2
• • • • •
• ~3 Sections arid M.P. PANCHAYAT RAJ & GRAM SWARAJ ACT, 1993
N(lll)
,.,
;es.
areas of of their
wise ~re- n Gram
nlieuof stituted md Sub
.(1)These 'elopment
(d) "Economical Weaker Section" means group of such class of persons who are notified by the state government oy a specified gazette notification from time to time. The Madhya Pradesh Gazette notification dated 15 July 2014 has fixed annual income for EWS as under:-
works of the ~ EWS - Income ofRs. 1,00000 (One Lac) Per family per year. ; (e) "External development work" means the development work as given below:-
(i) Construction of new road between the outer limit of colony and existing road of village (minimum width 3.75 meters carriage way and 6 meter road way for a colony less than 2 hectares in area. For others 7 meters divided carriage way and a shoulder of 1.8 meters on either side of the road).
(ii) Re-construction and widening of existing road connecting the outer limit of the colony to the main road (minimum width 3.75 meters carriage way and 6 meters road way for a colony less than 2 hectares in area. For others 7 meters divided carriage way and shoulder of 1.8 meters on either side of the road).
(iii) Laying electric line from the limits of the colony to the existing electrical energy point .
(iv) Connecting existing underground sewerage, if any with the ,sewerage system of the colony:
Provided that the execution of the above development work shall be done by the Colonizerin compliance with the prescribed standards.
(I) "Family'" means a basic social unit consisting of parents and their minor children, considered as a group, whether dwelling together Or separately.
(g) "Floor Area Ratio" (FAR) means the quotient obtained by dividing the total covered area (plinth area) on all the floors by the area of the plot;
(h) "Form" means forms appended to these rules;
(i) "Group Housing" means Housing for more than one dwelling unit, where land is owned jointly (as in the case of co-operative societies or the public agencies, such as local authorities or housing boards, etc.) and the construction is undertaken by one Agency.
(j) "Internal development work" means the development work to be done within the limits of the colony as per the prescribed standards as given below:- .
(i) Levelling; , (il) 'nemarcation of the proposed road~ and plots sanctioned in the layout; ,
, '(iii) - Construction of proposed roads including widening of the exist:
ing road (as per the mc standards);
(iv) Construction of culvertsJas per the IRQ standards);
(v) Construction of proposed drains (as per the MPPHE standards);
(vi) Mandatory constriction of overhead water tank if the area of the . colony is more than :2 hectares and construction of sump tank in case the area of the colony is more than 1 hectare but less
I
•M.P. Raj- :ise of the 'on 61:A to waraj Ad- makes the ,eMadhya 'quired by
3
CHAPTER-II
Registration
3. Registration ofColonizer._(1) Any person who intends to develop a colony in any Gram Panchayat Area shall apply to the Competent Authority for re,gistration in Form-1 appended to these rules accompanied by the documents mentioned therein and a copy of the receipt for having deposited t!l~, registrationfe" :;n concerning district Panchayat. shelter- . ---- fund.
(2) The application for registration shall be decided by the Competent Authority within a period of sixty days. In case the application is rejected, the reasons for such rejection shall be intimated in writing. (3)Any person aggrieved by the rejection of an application made under sub-rule (1)may file an appeal before the Divisional Commissioner within thirty days from the date of such rejection.
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.' \'.. - M.P. PANCHAYAT RAJ & GRAM SWARAJ ACT. 1993 IV{lv)
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J (vii) Construction of internal water supply system (as per the the MPPHE standards); , , coni
(viii) Construction ofinternal sewage line and septic tank if proposed CUIi (as per the MPPHE standards);, cor!
(ix) Fixation of electric polls etc. under the internal electricity sys- tem (as per the MPEB s~ndards); vai
(x) Laying of cables for internal electrification (as per the MPEB for, s~dards); va:
(xi) Plantation along the road side, development of children co:
playground with 4.5 feet high boundary wall; UI I
(k) "Lower Income Group" means group of such class of persons who Fi, are notified by the state government by a specified gazette notification TJ:
from time to time. The Madhya Pradesh Gazette notification dated 15july Z"
"
2014 has fixed annual income for LIG as under :_ , LIG - Income ofRs. from 1;00001 (Rs. one lac one) to 2,00000 (Ra. two 1'.1 lac) per family per year.
(l) "Raw Land" means such Land for which the permission has been issued to the colonizer for development.
(m) "SaleaMe residential lire,," IDeanstheto~larea ofresidentialplots'-.c. C developedoito be'developed or the total built up area of residential units constructed or to be constnlCted, for which a Layout has been approved by the Competent Authority;
(n) "Shelter Fee" means fee levied and collected in lieu of the reserva- tion ofland or floor area as the case may be, determined on the basis of the rates notified by the S~te Government;
(0) "Sub-Divisional Officer (Revenue)" means the Sub-Divisional Of- ucer appointed under the Madhya Pradesh Land Revenue Code, 1959 (No. 200£1959); ",. __ . __
'(p) "Shelter Fund" means the amount of fund received under the provisions of these rules. 'j
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993
M.P. PANCHAYAT RAJ & GRAM SWARAJ ACT" 1993
N(v) under the on has been ieunder
,rwithin )mpetent rejected, he reserva- basis of the isional Of- ,1959(No. oodevelop ,
"having It shelter persons who
~notification
dated 15july J ' (4) The registration certificate shall be issued in Form-2 appended to n (as per th , hese rules. The Competent Authority shall have power to impose other-
. l~onditions with the consultation of the State G<>vernmentin special cir- tnk ifproposedJ:umstances looking to the local circumstances, apart from the terms and rtconditions as mentioned in these Rules or.the Act. '
,lectricity sys- ' (5) The registration certificate, unless revoked earlier, shall remain valid for a period offive years, thereafter on application, it may be renewed Illr the MPEB for a further period of 5 years by payment of renewal fees. During the validity of the registration, the Colonizer shall be authorized to develop ; of children colonies in accordance with the provisions of the Act or Rules made there under, within any Gram Panchayat Area of the district.
4. Registration fee.-The registration fee shall be Rs. 50,000/- (Rupees Fifty Thousand), and renewal fee shall be Rs. 10,000/- (Rupees Ten Thousand), which shall be deposited in the Shelter fund of the concerning Zila Panchayat.
'000 (Rs. two 5. Disqualification for registration.-No person shall be eligible for registration if:
(I) (1) he has been convicted of an offence punishable under-
(a) Section 420 of the Indian Penal Code, 1860 (45 of 1860); .' (b) The Protection of Civil Rights Act, 1955 (No. 22 ofl955); and
(c) Prevention ofMoneyLaundering ACt,2002 (No. 15 of 2003);
(2) he has been adjudged to be of unsound mind by a Competent Court.
(3) his registration had been earlier revoked under these rules.
(4) If he has been adjudged bankrupt/insolvent by a competent Court.
(II) No such person as mentioned in sub. rule (1) above, shall be a partner ofthe firm of a Colonizer or a Director of the Society or a Company, wholwhich has applied for registration.
6. Maintenance of Register.-The Competent Authority shall main. tain a register in Form-3 appended to these rules both in office and online to be put in public domain, wherein the full details of the registration certificate shall be entered together with terms and conditions. The registered colonizer shall intimate the Competent Authority, in the case of any change in material particulars furnished at the time of registration.
7. Cancellation of Registration Certificate.-Where any colonizer 'starts the development work ofthe colonyor sells the plots without obtaining .permission under rule 9 or in .contr1!-YC!ltiQni>fthetel1lls ,and cQncUPons,of permission granted or has furnished incorrect particulars at the time of _.-rn:istration.Ol:has s~seqlWltly .i.!l~~l!!'Y. disqualification or viola~ any provision of the Act or of the Rules, the ComPetent Authority may Without' prejudice to its rights to take such other legal action as may be considered appropriate in the circumstances of the case, and after recording reasons in writing, cancel the registration certificate and communicate the same to the concerned colonizer:'
,Provided that no registration certificate shall be cancelled unless a reasonable opportunity of being heard has been provided to the colonizer. , iential plots
ential units
lpproved by
.,
or Th la 'gJ of
•. . M.P. PANCHAYAT RAJ & GRAM SIVARAJ AC7; 1993
• • N(vl)
8. AppeaI.-Any Colonizer aggrieved by the order of canceIIatio~ Pl passed under liection7. may prefer an appeal before the Divisional Com. missioner within thirty days from the date of the order. CHAPTER- III
Permission for Development of Colony
9. Application for the development of the colony and license' fee.-(l} Where a registered Colonizer intends to develop any colony and take up developmentwork,he shall submit an application in Form-4 to the Competent Authority.
(2) The fee for the permission of development of the colony shall be . payable at the rate ofRs. 10000/- (RupeesTen Thousand) per hectare. ' (3)The fee shall be depositedby the Colonizerin the shelter fund ofthe concernedZila Panchayat and a photo copyof the receipt shall be enclosed, r' as proofof payment with the application. I tI
(4) The Competent Authority may ask the applicant to furnish such d documents or information, as it may consider necessary keeping in view tJ the facts and circumstances of a particular case. I f (5)The CompetentAuthOrityshall reject the application if the requisi- c te fee is not deposited and required documents are not furnished or are not I c in order. , " }., _ ,
(6}TheCompetentAufuorityshlllidecide the "pplic~iioll WIthinsixtyr r days from the date ofpresentation thereof: Provided that the period taken'1- t to obtain the additional documents or information shall be excluded from ' the period of sixty days. In the case of rejection, the reasons thereof shall II be communicated to the applicant in writing and 90%of the registration 'I fee shall be refunded.
(7)The CompetentAuthority shall, after ensuring the compliancewith the provisions of rule 10, 11 and 16 grant the permission in Form-5 to develop colony. The authority may impose such conditions as it may consider appropriate. '
(8) If the applicant does not receive any information from the Com- petent Authority regarding disposal of the application within the period specified in sub-rule (6) above, he shall bring this fact to notice of the Competent Authority by a letter in writing. In case the Competent Authority doesnot issue any order within 15days from the date of receipt of such letter, the permission shall be deemed to have been granted.
10. Lay out of proposed colony.-(I) Where the proposed colonyto be developed,is situated in any Planning Area,constituted under the Madhya , Pradesh Nagar Tatha Gram NiveshAdhiniyam, 1973(No.23 of 1973),the application under rule 9 shall be accompanied by an approved layout in Form-6 appended to these rules as provided in Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 (No. 23 of 1973), and Madhya Pradesh BhoomiVikas Niyam 2012.
(2)Where the land proposed to be developed is situated outside any planning area constituted under the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973,the Sub-DivisionalOfficer (Revenue) shall seek the opinion of the Competent Authority of concerned Town and Country
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• '993 M.P.PANCHAYAT RAJ & GRAM SWARAJ ACT. 1993
N(vil) ,f cancellatio ' 'ivisional Com!
• and license' ny colony and> Fonn-4 to thel .lony shall be 'r hectare. ' ~r fund of the II be enclosed furnish such 'ping in view f the requisi_ ed or are not ' within sixty >eriodtaken cluded from hereof shall registration '1iancewith ,Fonn-5 to
as it may
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Planning authority. Only after receipt of affinnative opinion the diversion order of the said land under section 172 of the Madhya Pradesh Land Revenue Code. 1959 (No. 20 of 1959) shall be issued. After the approval of layout and issuance of diversion order, the building permission shall be granted by the Officer having Jurisdiction under clause (B) of sub-rule (5) of rule 2, of the' Madhya Pradesh Bhoomi Vilms Niyam, 2012.
11. Provision of plots or dwelling units for Economically Weaker SectionsfLower Income Groups.-(I) Colonizer, in case of developed plots, shall reserve 6%of the saleable area for EWS and LIG (3% each for EWS and 3%for LIG) and in case of dwelling units 6%of the total built up area shall be kept reserve for EWS and LIG (3%for EWS and 3% forUG).
If the total area of a colony is less than 2 hectare, colonizer shall reserve developed plots/dwelling units as the case may be for EWSILIG in the same colony. However if the total area of colony exceeds 2 hectare, 6% developed plots! dwelling units may be kept reserved for EWSILIG wi~hin the radius 2 kilometre from the main campus in lieu of reserving them in the same campus. However such pennission shall be obtained by the colonizer at the same time of obtaining license for the development of the colony!construction of the houses.
(2)Th:e, area of developed plot. and-built up ares.'of rlwellllf!plntts c, - reserved for economically weaker sections and lower income groups under this rule, shall be as under: -. -
(I)For economically weaker sections-
Developed Plots 35 to 40 Square Meters
Dwelling Units 25 to 35 Square Meters
(ii) For the lower income groups- Developed Plots 41 to 96 Square Meters -----Dwelling Units 36 to 48 Squar
(2) Where the development of the colony is on a land which has been leased out to the colonizer by the State Government and the lease condi- .PonsAo not permit for_construction ofdweUing units or providing plots for economically weaker sections and lower income groups, the Shelter Fee
. Jill:!a1l.beapplicable.
(8) In case a colonizer does not reserve plotJbuilt up house for the economically weaker section! low income group persons, shall have to deposit shelter fee as under:-
(i) In case of.a colony is having plots on developed land, such, undeveloped landlraw land as the case may be, a colonizer shall have to deposit shelter fee 6% of raw land as per the Collector gnideline rate and Rs. 5000 per square metre for cost ofdevelop-
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• M.P. PANCHAYAT RAJ & GRAM SWARAJ ACT. 1993
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(li) A colonizer shall have to deposit, in case of undeveloped land for dwelling units/raw land, '6% of raw land as per the Collector gnideline rate and Rs. 5000 per square metre for development charges and Rs. 10000 per square metre for cost of construction on 6% of total constructed area.
13. Additional Shelter Fees.-(l) Every colonizer shall deposit addi- tional shelter fees for the maintenance of external roads, drainage and sewage system.
(2) In the case of a plotted colony, the total area of residential plots in square metres and the Product of the total permissible floor area ratio at the rate of Rs. 100 per square metre.
(3) The Colonizer shall deposit additional shelter fees, in the case of a group housiug colony, the product of the total permissible built-up area in square meter at the rate of Rs. 100 per square metre.
14. Depositing of Shelter Fee.-(l) The shelter fee prescribed under rule 12 and 13 shall be deposited by the colonizer in the shelter fund of the concerned Zila Panchayat. Every Zila Panchayat shall maintain separate account for the amount so deposited and however, the State Government may further direct the manner in which the funds may be utilized.
(2) For the calculation of sheiter fee, the guid~line rate determmedtiy"
Collector shall be the rate prevailing on the date on which a colonizer submits application to the Competent Authority for grant of permission for' development of colony.
15. Sale of Plots Reserved for Economically Weaker Sections lUid Lower Income Groups.- The plots/dwelling units reserved for the Economically Weaker Sections and Lower Income Groups shall be sold by the colonizer in the following manner:-
(1) The Colonizer shall invite applications from persons belonging to the Economically Weaker Sections and Lowerlncome Groups, who do not. own any house or residential plot (except the residential plot in the abadi land ofvillage) anywhere in Madhya Pradesh in his name or in the name of any of his family members.
(2) The Persons belonging to Economically Weaker SectionsILower Income Groups interested in such PlotsJDwelling units, shall submit ap- plications along with the self declared certificate of having domicile of Madhya Pradesh accompanied by a duly self declaration in Form 10 appended to these Rules, declaring that neither he nor any member of his family own any house/plot either in his name or in the name of any of his
. family member anywhere in a rural area of Madhya Pradesh.
(3) The Colonizer shall send the name of such eligible Economically Weaker SectionILower Income Group applicants to Collector for buying plot/dwelling unit under the rules, along with a copy of the documents. The Collector shall give acknowledgement of receipt. The Collector shall scrutinize these applications within 30 days of the receipt thereof and satisfY him-self with the eligibility of applicants and shall furnish the final list of persons found eligible for Economically Weaker SectionILower In- come Group plots/dwelling units to the colonizer.
8
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• • • • •• I M.P. PANCHAYAT RAJ & GRAM SWARAJ ACT. 1993
IV(ix) pedlandfor te Collector evelopment
onstruction
'posit addi- ~inage and tal plots in 'ea ratio at le case ofa .up area in bed under imd of the 1separate
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Sections ,d for the ,e sold by Jnging to ho do not ;he abadi hename
lsILower bmit ap- !nicHe of ~orm 10 tet-ofiiis nyof.his Jmically
. buying nts; The lr shall eof and. hefinal 'wer In.
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(4) In case the Collector does not pass order on the list submitted by the colonizer within 30 days, the colonizer shall be free to sell plots or dwelling units to persons included in the list and execute necessary sale deeds in their favor.
(5) If the colonizer is found to have allotted the plots/ dwelling units to ineligible persons or more than one plot or dwelling unit to the members of same family, the colonizer shall be liable for cancellation of his registra- tion certificate apart from penal action.
16. Mechanism for Mortgage of Plots rowelling Units.-The Colonizer shall mortgage plots with Competent Authority as hereunder:
(1) Where the colony has been developed as a plotted colony or group housing or with dwelling units, 25 percent of the total number of developed plots and/or 25 percent of such dwelling units, as the case may be, shall be mortgaged with the concerning District Collector .
(2) The documents necessary for executing the mortgage deed shall be furnished by the Colonizer at his own cost and the particulars shall be furnished to the District Registrar.
17. Removal of difficulties in determining guideline rates.-In case any difficulty arises in determining the cost on the basis of guideline .rates mel).tioned in1Ulyprovisionunder these Rules,"th,,'matter,:shalFbe "c. •...---
referred to the Collector and his decision thereon shall be final. In areas where guideline rates of residential plots or built up residential houses are-- not available, the Collector shall prescribe the rates taking into considera- tion the rate ofthe nearest area.
18. General Conditions.-(l) The Colonizer shall hand over external
. roads, drainage and sewage system to the Gram Panchayat and the Gram Panchayat shall maintain the same.
(2) The Competent Authority shall also issue an order in Form-9 __appended with these rules directing that the colony-be -kansferred-inJme.- --,-----
diately to the Resident Welfare Association for its maintenance:
Provided that when the permission of development has been granted phase-wise, the Completion Certificate shall be issued phase-wise.
19. Period for completion of the internal development works of the colony .•(l) The Colonizer shall complete the internal development within a period of three years from the date of grant ofthe permission of development of the colony as prescribed in rule 9.
(2).If the Colonizer does Irot cortlpleteelie work of development within ...the period -specified .in -sub-rule fl-) above, the Competent Authority who _ granted permission shall -direcnh:e-Cilloriizerto complete the work- of 4~v:eIQPmeI\tof plots or dwelling units mortgaged under rule 16 may be sold by the Competent Authority by inviting sealed offers/auctions and the amount so obtained may be utilized for completing the works:
, Provided that no action shall be taken by the Competent Authority, unI~ss the Colonizer so affected has been given a reasonable opportunity of being heard.
20. Release of Mortgage .•The Colonizer sha11submit the report of com. pletion of the development work of the colony to the Competent Authority and
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• ••••• N(x) M.P. PANCHAYAT RAJ &,GRAM SWARAJ ACT. 1993
• • the concerned' Gram Panchayat. On receilll; of the report of completion of the work, the Competent Authority shall inspect or cause to be inspected of the colony' jointly with the representatives of Gram Panchayat within , thirty days of receipt of such report. If on such inspection it is found that "
the external and internal development works are completed, Economically Weaker Section and Lower Income Group plots/dwelling units have been developed and allotted, the Competent Authority shall issue a completion
I'certificate in Form- nO.7 appended to these rules and release the mortgaged property in respect of the plots or the dwelling units by issuing the order in Form-8 appended to these Rules. ' ,
CHAPTER-IV
Management of megal Colony
21. Management of the Colony.-(1) If the fact of transfer or agree- ment to Dtransfer plots made by the Colonizer in an area or illegal diver- sion or illegal colonization comes to the notice of the Competent Authority, he shall immediately take Over the management of such land and issue notice and publish the same in at least two daily Hindi news papers circulated in the jurisdiction of the district under which the Gram Panchayat falls and call upon all the persons interested in the said land to show cause within such period, as may be specified therein, as to why the I management of the said colony should not be taken overby.the Oompetent ',?1"Authority. _ _ __, __
(2) On the expiry of the period specified in the notice, the Competent Authority shall consider the objections or suggestions, if any, received with reference to the notice and if he considers necessary, require any such r,1 person who has raised any objection, to appear either in person or through "
authorized representative with all the relevant documents for hearing.
(3) The Competent Authority after hearing the parties, may make such further inquiry in the matter, which he may think proper and may,-
(i) drop the proceedings if he is satisfied that the land is not subjected to illegal diversion or illegal colonization;
(ii) takeover the management of the land, if he finds any illegal diversion or illegal colonization thereon;
and where the management of/and is taken over in the manner prescribed above, the Competent Authority shall prepare a scheme for the develop- ment and delivery of such land to the plot holders, if any, and the scheme so prepared shall be published for the infolination of general public in such a manner, as he may deem fit.
(4) The expenses incurred by the C9mpetent Authority on the manage- ment of the land shall be included in the development charges of the land and 'sliau l>erecoverable on pro-rata or on any fair basis from the persons to whom
(5) The Competent Authority shall take action against employees under section 61-E and 61-EA of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (No.1 of 1994).
22. Relaxation.-Nothing in these rules shall be construed to limit or abridge the power of the State Government to deal with any case to which
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the Gram laid land to to why the Competent Competent ,eivedwith , any such or through .earing.
make such my illegal lrescribed , develop- Ie scheme liein such ! manage-
,landand ,towhom mployees ayat Raj I limit or towhich M.P. PANCHAYAT RAJ & GRAMSWARAJ ACT, 1993 IV(xl) these rules apply in ~uch a mariner, as may appear to bejust and equitable:
Provided that the case shall not be dealt within any manner less favourable than those provided in these rules.
23. Interpretation .•lf any question arises as to the interpretation of these rules, the same shall be referred to the Government. The decision of the Department of Panchayat and Rural Development thereon, shall be final.
24. Repeal.-The Madhya Pradesh Gram Panchayat (Registration of Colonizer, Terms and Conditions) Rules, 1999 shall stand repealed:
Provided that anything done or any action taken under the rules so repealed, shall be deemed to have been done or taken under the cor- responding provisions of these rules.
Forms not reproduced.
[For texl of forms, see M.P. Oaz. (Asadharan), daled.24-12.2014, p.
1254(20).]
NEWRULES- MADHYA PRADESH GRAMm NAL JAL PRADAY YOJANA SANCHALAN EVAI\-1j3ANDIJARANNIYAM, 2014 . For text' drni;;;' RilleB.See Noifn.No:' F~16.2~20i2:XxfI-P:2,daleci 20- i:
2015,Pub. inM.P.Jrojpalra (Asadharan), daled20-1-2015, p. 56(3) .. NEW AMENDMENTS IN RULES-
MADHYA PRADESH
PANCHAYAT NIRVACHAN NIYAM, 1995
As amended subsequently by following new amending notifications:-
INolfn. No ..F. .2-1~014-XXlI-P2, dated 11-9-2014, Pub. in M.P~-Ra:f- palra (Asadharan), daled 11-9.2014, p. 845.J
[Nolfn. No. F-16-1-2015-XXJI-P-2, daled 23-1-2015, Pub. in M.P. Raj- palra (Asadharan), daled 23-1.2015, p. 80(1)J.
Nolfn. No. F 2-1-2015-XXlI-P.1, daled 19-2-2015, Pub. in M.P. Raj- palra (Asadharan), daled 19.2-2015, p. 152(1). In rule 31.A, on book page (PR)50, after sub-rule(3), new sub-rule (.'I-a)inserted [Nolfn. daled 19-2-2015]:- .
"(.'I-a)The Candidate shall also submit a copy of "No dues Certifi-
• "ate" ..issued bythePanchayat.in the form prescribed by the -State .t>-ElectionCOifllnissiilrialongwith the nomination pap"r"; '. -'''' -In rule 77, on book page (PR)76, sub-rule (2) substituted [Nolfn. da~423.1-2015]:-
I" "(2)After the counting ofvotes in respect ofapolling station has been
. completed, the Returning Officer or such other officer authorized by him ,Cshallmake the entries in part-one ofform 16, 17, 18 and 19 of the result w.sheet for Panch, Sarpanch, members of Janpad Panchayat and Ziia n<:Panchayat respectively and announce the total number or votes polled
11
... ...
sh
sl
po
M.P. PANCHAYAT RAJ & GRAM SWARAJ ACT. 1993 N(XlI)
by each candidate." . I . I
In rule 80, on book page (PR)79, sub.ruIe (B) substituted [Notfn. I.dated 23-1-2015]:_ .' ,
"(B) The Returning Officer, on receipt ofresuJt. sheets under sub.rule '
(7) shall enter or cause to be entered the total number of votes polled by . each candidate contesting for a seat of Panch, Sarpanch, member of ' Janpad Panchayat or member of Zila Panchayat at each polling station . of the concerned constituency in subsequent part or parts ofform 16, 17, I IB and 19 respectively and complete and sign the result sheet."; :
In rule 81, in sub-rule (1) [Notfn. dated 19-2-2015 J,-
(i) In clause (a), On book page (PR)81, for "Form 20", the words '
"Form 20 or Form 20-A" substituted and for "Form 16", the words "Form16 or Form 16-A" substituted;
(ii) In clause (b), on book page (PR)81, for "Form 21", the words
"Form 21 or Form 21-A" substituted and for "Form 17", the words "Form17 or Form 17-A" substituted;
(iii) In clause (c), on book page (PR)Bl, for "Form 22", the words
"Form 22 or Form 22-A" substituted and for "Form IB", the words "FormIB or Form IB-A" substituted;
(iv) In clause (d), on book page (PR)81, for "Form 23", thewor.ds 'it .'_ .
"Form 23 or Form 23-A" substituted and for "Form 19", the worCis"Form l'19 or.Form 19-A" substituted. ,. IIn rule 82, on book page (PR)81 [Notfn. dated 19-2.2015 J, for I
"Form 20, 21, 22 or 23" the words "Form 20 or 20-A, 21 or 21-A, 22 or 22-A or 23 or 23-A" substituted.
In rule 84, on book page (PR)84 [Notfn. dated 19-2-2015],_ •
(i) In sub-rule (1), for" Form 16, 17~18 or 19" the words "Form 16 or 16-A, 17 or 17- A, IB or IB-A or 19 or 19-A" substituted and for "Form 20, 21,22 or 23" the words "Form 20 or 20-A, 21 or 21-A, 22 or 22-A()r23 or23-A" substituted; _ .
(ii) In sub-rule (2), for" Form 20, 21, 22 or 23", the words "Form 20 or 20-A, 21 or 21-A, 22 {)r 22-A, or 23 or 23-A" substituted;
(iii) sub-rule (3) substituted:_
"(3) Nothing in sub-rule (1) shall confer any power or authority upon the District Election officer to open any envelope containing counted ballot papers or to direct recounting of votcs or recounting of votes by detachable memory module (DMM).".
In rule 86, o~ book page (PR)83 [Noifn. dated 19-2-2015 J, for ~\lIes 67 and 68", the words "Rules 67, 72-P, 86 and 72-R" substituted;
In rule 88, on book page (PR)83 [Notfn .. dated 19-2-2015 ], for ."Rule 87" the words "Rule 87 and 72-R" substituted;
In Rule 88, on book page (PR)83, after sub-rule (2), sub-rule (3)inserted fNotfn. dated 11-9-2014J:_
"(3) After conduct of election by Electronic Voting Machine (E.V.M.), the Detachable Memory Module (DMM) and all necessary material relating to election shall be retamed for such period, as the commission
12
- , • • • • .,
3
M.P. PANCHAYAT RAJ & GRAM SWARAJ ACT, 1993
IV(xjp)
"ted [Notrn. :ler sub-rule ;espolled by member of ,ling station
form 16, 17, et.";
',the words
'ords "Form
," the words ords "Form , the words ords "Form , thewords >rds "Form 2015], for !l-A, 22 or J,-
form 16 or
"Form 20, Aor230r
"Form 20 orityupon g counted fvotes by ~01.p.],_for bstituted; '015 ~•.for b-rule (3)
(E.V.M.),
material
mmission
may, by general or 'special ord~r, direct."
Amendments in Forms. Not reproduced, See amending notifications dated 11-9.2014; dated 23.1-2015; & dated 19.2-2015 respectively. MADHYA PRADESH PANCHAYAT (UP SARPANCH, PRESI- DENT AND VICE- PRESIDENT) NIRVACHAN NIYAM, 1995 [Notrn. No. F-16.2.2014.XXII.P.2, dated 5.12-2014, Pub. in M.P:.Raj. patra (Asadharan), dated 5.12.2014, p. 1118.]
In rule 3,
(1) On book page (PR)279, For suq-rule (3), the following sub-rule shall be substituted namely:-
"(3) (a) The post of Chairman in the first election, shall be reserved in descending order for the Schedule Caste/Schedule Tribe in those districts where the population of such Schedule Caste/Schedule Tribe, as the case may be, is more in percentage with respect to their total population in those districts, thereafter in subsequent elections, the post shall be reserved by rotation for SC/ST in those districts, as the case may be, where such population of SC/ST is not less than one lakh. After the authorized latest publication of census data ,everyten year, thereserva" c' '--- tion shaUb"'m',,-de'i1Itesh Tndesceiiding"oider for Schedule Caste/Schedule Tribe in such above manner:
Pro,ided that in Scheduled Areas; the office of Chairperson for Scheduled Tribes shall be reserved in accordance with the provisions of Section I29-E:
Provided further that the Zila Panchayat or Janpad Panchayat; as the case may be, where there is no reservation of seats for Scheduled Castes or Scheduled Tribes or Other Backward Classes as the case may be, or of women belonging to any ofthesecatego:ries, sllall!>e e"eluded,. 'from:draWingOflotsTor th,,-ieservationofOffice of Chairperson for such Scheduled Castes or Scheduled Tribes or Other Backward Classes or of women belonging to any ofthese categories as the case may be.
(b) The seats shall be reserved for other Backward Classes by rotation by drawing oflots;
(c) The seats are to be reserved in Zila Panchayat for Categories of Scheduled Castes, Scheduled Tribes and Other Backward Classes and i!,-~ach category a.Iongwith general seat, half of the total number of seats ~8?;al!~"..~~!,,~~_by !'1.!aJi.'!!'.!or.\V~m.~!l~y;.
(2) on book page (PR)280, for sub-rule (6), the followmgsubC:rule shall be substituted, namely:-.••••••. ""' _'-~_-. __ ' ,_ • "A,'<. __ - "(6) In subsequent general election, the Zila Panchayats previously' reserved shall be excluded from drawing lots, for that particular
categories."
MADHYA PRADESH PANCHAYAT, SAMVIDA SHALA
, SHIKSHAK (EMPLOYMENT AND CONDITIONS OF
CONTEU\CT) RlJLES,2005
[Notfn. No. F. 2-01-2013-XXlI-P-2, dated 24-9-2014, Pub. in M.P. Raj- patra (Asadharan), dated 24-9-2014, p. 902.J '
In rule 6, on book page (PR)475, for sub-rule (2), the following sub-rule substituted namely:-
"(2) 'Samvida Shala Shikshak Eligibility Examination', hereinafter referred to as 'Eligibility Examination', as prescribed shall be conducted for the employment of Samvida Shala Bhikshak. The eligibility ex- amination shall be conducted by an agency prescribed by the Govern- m~nt. The validity of the eligibility examination shall be for two years after declaration of result or next eligibility examination to be held, which will be earlier."
I
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II< .,. .•
MADHYA PRADESH PANCHAYAT RAJ MANUAL
MADHYA PRADESH
• ••
(
v
(PA)191
(PA)l (PN8 _. - ~ :--:-'_-c ..--._-_-'--'~-' 0,-:
(PA)lS
(PA)14'190
VII
XI
(PR)28-91S
PANCHAYAT RAJ MANUAL
.
General Contents
Pg.No.
MADHYA PRADESH PANCHAYATRAJ AVAM
GRAM SWARAJ ADHINNAM. 1993 (No. I of 1994) Act
8ectionwise consolidated outline of amendments .
Q~tailed,Gqnt{l,lltsofSections.with Pllge No~..•.:....•.•.•.•, .•....... .,.. . List of Amending Acts .
Act withcommenta,.y: ~ :..~:/.:: :.:..
M. P. Panchayat Nirvachan Yachika Pratibhuti Nikshep
(Vidhimanyakaran) Adhiniyam, 1996 (No.9 of 1996) .
Notifications
Contents of Notifications with Page Nos. VI Notificlltions issuecI UIlder .t!J..~.~c!~.................•................. : (PN)l :27 __._. Rules
Alphabetic List of Rules with Page Nos .
Chroriblbgical List(jf Rules with Page Nos : .
Rules made under the Act.. .
Bye-laws
Alphabetic List of Model Bye-laws with Page Nos. •................... XV .'
,'Model'Bye-lawsmadeunder.the Act ~ ;~(PR)914-36
--- - .- ----- ------------------ --_._--_ .._- - - --------~---.
Other Allied Acts & Rules
List of Act & Rules with Page Nos , .
M. P. Zila Yojana Sarniti Adhiniyarn, 1995
(N0.19 of 1995) with Rules :.: .
XV
(PR)937
15
VI
MADHYA PRADESH PANCHAYATRAJMANUAL Contents Co
(PR)956
(PR)964
(PR)969
.
Rashtriya Gramin Rojgar Guarantee Adhiniyam, 2005 (Cent. Act 42 of 2005)
-Mahatma Gandhi National Rural EmploYment Guarantee (Appointment, ... the Ombudsman) M.P. Rules, 2013 .. -M.P. Social Audit Rules, 2013 , .
-Gramin Rojgar Guarantee Yojna, 2005 (Hindi) . Gram Nyayalayas Act, 2008 (Central Act 4 of 2009) with M.P. Rules of 2013 (PR)984
LIST OF NOTIFICATIONS (Alphabetically) UNDER THE ACT
I
I
I
Di
G,
.G
G
(PN)12
(PN)1
(PN)10-12 (PN)22-24
(PN)27
(PN)26
(
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I
r i f .,
I
1
\
(
(PN)27
(PN)16
(PN)19
(PN)19
(PN)19
(PN)22
(PN)16
Contents of The Notifications :-
Collector appointed Administrators of fund ofZila Panchayats. Collector to hear cases ufSs. 3,125,126 & 129-B . Commissioners of Divisions authorised for purposes of B.33-A. Delegation of powers ufSs.23 & 30 to Collectors . Del~gation of power by State Government ufs.39(2) . Delegation of power by State Government ufs.62 . Districts and Zila Panchayats .
Divisi~';' of State into Districts; blocks and block head- quarters. . , ' { .
Enforcement of amending Acts .
Ex-Officio Chief Executive Officers of certain Zila Panchayats. (PN)22-24
Ex-Officio Additional Chief Executive Officers of certain Janpad & Zila Panchayats ..............................................•....... Independent Panchayat Raj Sanchalanalaya Introduced .
Officer nominated for s .85(2). .. .
Officer or authority discharged the functions of the prescribed authority ufs. 2 .
Officers who could be appointed Returning Officers and
Assistant Returning Officers for certain panchayats............. (PN)20 Prescribed authority under various sections : (PN)12, 24-26 Prescribed Authority under s.22(l)(iv). (PN)18
,
Prescribed Officer ufs. 6(3) !............. (PN)16 -Some Important Notifications issued under other Acts (PN)26 -Some Hindi Notifications issued under the Act...................... (PN)27 j
,
.~;.
16
ALPHABETIC LIST OF RULES GIVEN
Development Commissioner Panchayat and Rural Development, Class III-(Ministerial & Non-Ministerial) Service Recruitment Rules, 1999 .......................•.................. District Panchayat Raj Fund Rules, 1998 _ .
Gram Panchayats (Accounts) Rules, 1999 .
Gram Panchayat and Janapad Panchayat (Lease of
Collection of Fees) Rules, 1995 .
Gram Panchayat (Annual Accounts and Administration
Report) Rules, 1998 .
Gram Panchayats (Budget Estimates) Rules, 1997 .
Gram Panchayat Obligatory Taxes and Fees (Conditions and Exceptions) Rules, 1996 .
Gram Panchayat Optional Taxes and Fees (Conditions
and Exceptions) Rules, 1996 :..........................•. ; . Gram Panchayat (Power Relating to Removal of Structures and Trees) Rules, 1999 : , : .
Gram Panchayat (Powers & Functions of the Secretary) Rules, 1999 .........................................................•.•.............•.... Gram Panchayat (Registration of Coloniser Terms and
Conditions) Rules, i999 : . .
Gram Panchayat (Regulating Places for Disposal of Dead Bodies,
Carcasses & Other Offensive Matter) Rules, 1998 : .
Gram Panchayat (Regulation of Offensive OrDangerous
Gdods Trades) Rules, 1998 : .
Gram Panchayat (Regulation of Sale ofMeat and
Preservation) Rules, 1998 ; .
Gram Panchayat (Regulation of Slaughter House)
Rules, 1998 .................•............................................................ Gram Panchayat (Sanction of Loans to the Indigent Persons)
Rules, 1995 ; .
Gram Panchayat (Sanitation, Conservancy and Prevention
and Abatement of Nuisance) Rules, 1999 .
Gram Panchayat (Term of Office ofMembers. of Standing Com-
mittee & Procedure for the Conduct of Business) Rules, 1994
Gram Panchayats (Travelling Allowance and qther
Allowances) Rules, 1995 : " .
Gram Sabha (Appeal) Rules, 2001.. : .
Gram Sabha (Audit) Rules, 2001 .
Gram Sabha (Budget Estimates) Rules, 2001 .
Gram Sabha (Constitution of Standing Committees, Procedure
for Conduct of Business and Allied Matters) Rules, 2012 ....
.,
,
I
I
I
I
r l
I
I
Contents MADHYA PRADESH PANCHAYAT RAJ MANUAL
VII
(PR)692
(PR)388
(PR)772
.cPR)252
(PR)419
(PR)303
(PR)291
(PR)297
. (PR)429
(PR)605
(PR)449
(PR)432
(PR)416
(PR)402
(PR)413
(PR)268
(PR)435
(PR)231
(PR)262
(PR)846
(PR)862
(PR)850
(PR)158
17
Gram Sabha (Maintenance of Gram Kosh) Rules, 2005 . Gram Sabha,Obligatory Tax an~ Fees (Conditions and Exceptions) Rules, 2001 : .
Gram Sabha Optional Taxes and Fees (Conditions and Exceptions) Rules, 2001 : : .
Gram Sabha (Procedure of Meeting of the Committees, Conduct of Business and Allied Matters) Rules, 2005 . Gram Sabha (Procedure of Meeting) Rules, 2001 . Gram Sabha (t?anction of Loans to the Indigent Persons) , Rules, 2001 ; .
Gram Sabha Swasth Grain Tadarth.Samiti (Gathan, Karbar Sanchalan Tarha Baithak) Niyam, 2010 . Janpad Panchayats (Accounts) Rules, 1999 . . "
JanpadPanchayat and Zila Panchayat (Aimual Accounts and Adininistration Report) Rules, 1998 . Janpad Panchayat and Zila Panchayat Standing Committees (Election of Members, Powers and Functions and Term of
Members and Procedure for the Conduct of Business) Rules, 1994 : ..•....................................................... , Jariapada Panchayat (Budget Estimafes) Rules,'1997 . Janpad Panchayat (Imposition of Development Tax on
Agriculture Land) Rules, 1999 .
Janpad Panchayat (Management of Ferries) Rules, 1999 . Janapada Panchayat Members (Tr~velling and Other Allowan- ces) Rules, 1995 .
Janapada Panchayats Theatre Tax (Regulation ofImposition, Assessment and Collection) Rules, 1996 .
Panchayat Adhyapak Samvarg (Employment aiJd Conditions of Services) Rules, 2008 .
Panchayat (Alteration of Limits, Disestablishment or Changee of Headquarters) Rules, 1994 : .
Panchayat and Rural Development Department Class III
(Ministerial and Non-ministerial) Service Recruitment Rules, 1992 .....................................•..................... : . Panchayat and Rural Development Department Class IV
Service Recruitment Rules, 1992 .
Panchayat and Rural Development (Gazetted) Service Recruit- ment Rules, 1988 .
Panchayat and Social Justice Class-III (Executive) Service Recruitment Rules, 2004 ...........................•............................ Panchayat and Social Justice Class IV Services Recruitment Rules, 2006 .............................................•................................ Contents
$PR)839
.
(PR)859
(PR)856
(PR)839
(PR)192
(PR)847
(PR)165
(PR)792
(PR)445
I
I
!,
VIII MADHYA PRADESH PANCHAYAT RAJ MANUAL
(PR)221
(PR)335
(PR)833
(PR)637
(PR)258
(PR)300
(PR)492
(PR)191
(PR)868
(PR)883
(PR)885
(PR)897
(PR)907
,
18
Contents MADHYA PRADESH PANCHAYAT RAJ MANUAL
IX
\
Panchayat and SocialWelfare Class-III (Ministeria!) Service Recruitment Rules, 1998 : . ,
Panchayat and Social Welfare (Gazetted) Service Recruitment Rules, 1998 .
Panchayats (Appeal and Revision) Rules, 1995 . . Panchayat Audit Rules, 1997 .
Panchayats (Bye-laws) Rules, 1994 .
Panchayat (Class fII Executive Agriculture Service Recruitment) Rules, 1999 .
Panchayat (Class III Executive Horticulture Service Recruit- ment) Rules, 1999 .
Panchayat Contract Service (Indian System of Medicine Unani and Homeopathy) Rules, 1999 .
Panchayats (Correspondence) Rules, 1995 .
Panchayats (Election Petitions, Corrupt Practices and Dis- qualification for Membership) Rules, 1995, . Panchayat (Enhancement of Cess on Land Revenue and Distribution) Rules, 1999 .
Panchaya:t Fisheries Services (Recruitment) Rules, 1999 . ." -. .
Panchayat (Gramin Vikas Service Recruitment) Rules, 1999 .. Panchayat (Gram Panchayat Ke Sarpanch 'l'atha Up-Sarpanch, Janapad Panchayat Tatha Zila Panchayat Ke President Tatha Vice-President Ke Virudh Avishwas Prastav) Niyam, 1994 . Panchayat (Health Service Recruitment) Rules, 1999 . Panchayat (Inspection of Proceedings) Rules, 1995 . Panchayat. (Inspection of Record and Copies) Rules, 1995 . Panchayats (Irrecoverable Sums) Rules, 1995 . Panchayat (Loans from Government or Financial Institutions) Rules, 1999 .
Panchayat (ManagementofGovernmentLands)Rules, 1995 . Panchayat (Manner and Limitation ofAppeals Against Taxation) Rules, 1995 .................................•............................. Panchayat Members (Nomination of Representative)
Rules, 1997 '.•................ , ,.
Panchayat (Method of Service of Notice & Document)
Rules, 1995 .
Panchayat (Modes of Executing Contract) Rules, 1995 .
Panchayat Nirvachan Niyam, 1995 , .
Panchayat (Powers and Functions of Chief Executive Officer) Rules, 1995 .
IPRI499
(PR)513
(PR)182
(PR)352
(PR)195
(PR)612
(PR)709
(PR)737
(PR)265
(PR)234
(PR)579
(PR)760 .
(PR)625
(PR)197
(PR)819
(PR)170
(PR)172
(PRJ178
(PR)582
(PR)250
(PR)169
(PR)444
(PR)271
(PR)I77
(PR) 28
(PR)263
19
Panchayat (Powers and Functions of Sarpanch and Up- Sarpanch of Gram Panchayat, President and Vice-President of Janapad Panchayat and Zila Panchayat) Rules, 1994 . , Panchayat (Procedure ofMeeting & Conduct of Business) Rules, 1994 .
Panchayat (Purchase ofMaterial and Goods)Rules, 1999 . Panchayat (Recovery of Records, Articles & Money) Rules, 1995 .
Panchayat (Regulation ofMarkets and Melas within the Gram Panchayat Area) Rules, 1994 .
Panchayat (Regulation of Relations between Panchayats & Panchayat & Other Local Authorities) Rules, 1994 . Panchayats (Regulation of the Imposition, Assessment, Collection of Taxes) Rules, 1995 ~.'-
Panchayat (Resignation by Omce Bearer) Rules, 1995 . Panchayat (Transfer ofImmovable Property) Rules, 1994 . Panchayat (Upsarpanch, President and VicePresident) Nirvachan Niyam, 1995 .
Panchayats (Veterinary ServiceRecruitment)Rules, 1999 . Panchayat (Women and Child Development Service Recruitment) Rules, 1999 .
Panchayat Raj Sanchalm,laya Cia~~-lii (Executive) Service Recruitment Rules, 2013 .
Panchayat Raj Sanchalnalaya ClasseIII Ministerial Service Recruitment Rules, 2013 .
Panchayat Raj-Sanchalnalaya Class-IV Service and General Conditions of Service Recruitment Rules, 2013 . Panchayat Raj Sanchalnalaya (Gazetted) Service Recruitment Rules, 2013 .
Panchayat Sanivida: Shiil" Shikshak (Appointment and- Conditions of Contract) Rules, 2001
-Repealed by the following rules of2005 , . Panchayat Samvida Shala Shikshak (Employment and Conditions of Contract) Rules, 2005 .
Panchayat Services (Conduct) Rules, 1998 : . Panchayat Service (Discipline and Appeal) Rules, 1999 . Panchayat Service (Kala Karmi) Recruitment Rules, 1999 . Panchayat Service (Recruitment and General Conditions of Services) Rules, 1999 .
Panchayat Shiksha Karmis (Recruitment and conditions of service) Rules, 1997 .- .
Rojgar Karmi Yojana [Hindi] .
x MADHYA PRADESH PANCHAYAT RAJ MANUAL
Contents
(PR)21O
(PR)216
(PR)588
(PR)251
(PR)213
(PR)196
(PR)180
(PR)273
(PR)206
(PR)277
(PR)747
(PR)648
(PR)l11
(PR)131
(PR)122
(PR)145
(PR)472
(PR)472
(PR)405
(PR)592
(PR)722
(PR)546
Repealed
(PR)911
20
Contents MADHYA PRADESH PANCHAYAT RAJ MANUAL
XI
I,
I
.1
I
I
I
Scheduled Areas Gram-sabha (Constitution, Procedure
"fMeeting and Conduct of Business) Rules, 1998 . Zila Panchayats (Acc01.1nts)Rules, 1999 ..................................•.. Zila Panchayats (Budget Estimates) Rules, 1997 .
Zila Panchayat (Business) ~ules, 1998 ' .
Zila Panchayat Members (Travelling & Other Allowances) Rules, 1995 .
CHRONOLOGICAL LIST OF RULES GIVEN
1988
Panchayat and Rural Development (Gazetted) Service Recruitment Rules, 1988 .
1992
Panchayat and Rural Development Department Class III
(Ministerial and non-ministerial) Service Recruitment
Rules, 1992 . Panchayat and Rural Development Department Class IV Service Recruitment Rules, 1992 .
1994
Gram Panchayat (Term of officeofmemb~rs of Standing Committee and procedure for the conduct of business) Rules, 1994 , .
Janpad Panchayat and Zila Panchayat Standing Committees
(Election of members, powers and functions and term of members and" procedure fo~ the conduct of business)
Rules, 1994 , .
. Panchayat (Alteration ofiimit, disestablishment or change of head-quarters) Rules, 1994 .
Panchayats (Bye-laws) Rules, 1994 .
Panchayat (Gram Panchayat ke Sarpanch tatha Up-sarpanch, Janpad Panchayat tatha Zila Panchayat ke President tatha Vice-president ke Virudh Avishwas Prastav) Niyam, 1994 .. Panchayat (Powers and Functions of Sarpanch And Up-sarpanch of Gram Panchayat, President and Vice-pr,esident of Janpad Panchayat and Zila Panchayatl.Rules, 1994 . Panchayat (Procedure ofMeeting and Conductl'ofBusiness) Rules, 1994 .
Panchayat (Regulation ofMarkets and Melas within the Gram Pilnchayat Areas) Rules, 1994 .
Panchayat (Regulation ofRelations betweenPanchayats and Panchayat and other Local Authorities) Rules, 1994 :
Panchayat (Transfer ofImmovable Property) Rules, 1994 .
(PR)396
(PR)661
(PR)315
(PR)374
(PR)254
(PR)885
(PRJ868
(PR)883
(PRJ231
, (PR)221
(PRJI91
(PR)195
(PR)197
(PR)210
(PRJ216
(PR)213
(PRJI96
(PR)206
21
(PR)291
/,
'(PR)291
I
(PR)300 I,
t
'\
,
Gram Panchayat Obligatory Taxes and Fees (Conditions and Exceptions) Rules, 1996 .
Gram Panchayat Optional Taxes and Fees (Conditions and Exceptions) Rules, 1996 .
Janapad Panchayats Theatre Tax (Regulation of imposition, assessment and collection)Rules, 1996 .
1995
Gram Panchayat and Janapad Panchayat (Lease of collection. of fees) Rules, 1995 .: , .
Gram Panchayat (Sanction ofLoans to the Indigent Persons) Rules, 1995 : .
Gram Panchayats (Travelling allowance and other allowances)
Rules, 1995 : . J anapad Panchayat Members (Travelling and other allowances), Rules 1995 , .
Panchayats (Appeal and Revision) Rules, 1995 . Panchayats (Correspondence) Rules, 1995 .
Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 . Panchayat (Inspection ofProceedings) Rules, 1995 . Panchayat (Inspection 6fRecords and Copies) Rules, 1995 . Panchayats (Irrecoverable Sums) Rules, 1995 . Panchayat (Management of Government Lands) Rules, 1995 .. Panchayat (Manner and Liniitation ofAppeals against Taxation) Rules, 1995 .
Panchayat (Methodof service of notice and doculllent) Rules, 1995 : ::.:; : ,
Panchayat (Modes of Executing Contract) Rules, 1995 . Panchayat Nirvachan Niyam, 1995 .
Panchayat (Powers and Functions of Chief Executive Officer) Rules, 1995 ,; .
Panchayat (Recovery of Records, Articles and Money)
Rules, 1995 . Panchayats (Regulation of the imposition, assessment, collection of Taxes) Rules, 1995 ::::::::::.::::::::::::.:.:::::.::::.: . Panchayat (Resignation by officebearer) Rules, 1995 . Panchayat (Upsarpanch, President and Vice President)
. .
Nirvachan Niyam, 1995 . Zila Panchayat Members (Travelling and other allowances), Rules 1995 .
1996
\
I
)
I I
I
I
I
I
,
I
I
I
I
'1..
I I ,
I
(PR)252
(PR)268
(PR)262
(PR)258
(PR)182
(PR)265
(PR)234
(PR)170
(PR)172
(PR)178
(PR)250
(PR)169
(PR)271 ..,,-'
(PR)177
(PR) 28
(PR)263
(PR)251
(PRj180
(PR)273
(PR)277
(PR)254
Contents MADHYA PRADESH PANCHAYATRAJMANUALXII
22
,
I,,
Contents MADHYA PRADESH PANCHAYAT RAJ MANUAL
XIII
Repealed
(PR)315
i,
)
i i
I
i
I
!
I
I
1
I
I
J
r
4
1997
Gram Panchayats (Budget Estime:tes) Rules, 1997 . Janpad PancQ8.yat(Budget Estimates) Rules, 1997 . Panchayat A~dit Rules, 1997 .
Panchayat Members (Nomination of Representative) Rules, 1997 Panchayat Shiksha Karmis (Recruitment and conditions of service) Rules, 1997 .
Zila Panchayats (Budget Estimates} Rules, 1997 .
. 1998
District Panchayat Raj. Fund Rutes, 1998 . Gram Panchayat (Annual Accounts and Administration) Rules, 1998 ; .
Gram Panchayat (Regulating places for disposal of dead bodies, carcasses and other offensive matter) Rules, 1998 . Gram Panchayat (Regulation of offensive or dangerous goods trades) Rules, 1998 .
Gram Panchayat (Regulation of sale ofmeat and preservation) Rules, 1998 .
Gram Panchayat (Regulation of Slaughter House) Rules, 1998 Janpad Panchayat arid Zila Panchayat (Antiual acco'unts and administration report) Rules, 1998 .
Panchayat and Social Welfare (Gazetted) Service Recruitment Rules, 1998 .
Panchayat and SocialWelfare Class-llI (Ministerial) Service Recrui tment Rules, 1998 .
Panchayat Services (Conduct) Rules, 1998 .
Scheduled Areas Gram Sabha (Constitution, procedure of meeting and conduct ofbusiness) Rules, 1998 . Zila Panchayat (Business) Rules, 1998 .
1999
Development Commissioner Panchayat and Rural Development, Class 111-(Ministerial & Non-Ministerial) Service Recruitment Rules, 1999 .
Gram Panchayats (Accounts)Rule~, 1999 ~ .
Gram Panchayat (Power Relating to Removal of Structures and Trees) Rules, 1999 : .. .
Gram Panchayat (Powers and Functions of the Secretary) Rules, 1999 .
GramPanchayat (Registration of Coloniser Terms and condi- tions) Rules, 1999 .
Gram Panchayat (Sanitation, conservancy and prevention and abatement of nuisance) Rules, 1999 .
(PR)303
(PR)335
(PR)352
(PR)444
(PR)388
(PR)419
(PR)432
(PR)416
(PR)402
(PR)413
(PR)445
(PR)513
(PR)499
(PR)405
(PR)396
(PR)374
(PR)692
(PR)772
(PR)429
(PR)605
(PR)449
(PR)435
23
(PR)792
;
(PR)833
(PR)637
(PR)612
(PR)709
(PR)737
(PR)579
(PR)760
(PR)625
(PR)819
(PR)582
(PR)588
(pR)592
(PR)722
(PRi546 iPRi648
(PR)747
(PR)661
(PR)846
(PR)862
(PR)850
(PR)859
(PR)856
(PR)192
I. ,
i'
I
.....-I '
(PR)847
(PR)472
ContentsMADHYA PRADESH PANCHAYAT RAJ MANUAL XIV
1999 (Contined) .Janpad Panchayats (Accounts) Rules, 1999.: . Janpad Panchayat (Imposition of Development Tax on Agricultural Land) Rules, 1999 .
Janapad Panchayat (Management ofFerries) Rules, 1999 . Panchayat (Class III Executive Agriculture Service Recruitment) Rules, 1999 .
Panchayat (Class III Executive Horticulture Service Recruitment) Rules, 1999 : .
Panchayat (Contract Service (Indian System of Medicine Unani and Homeopathy) Rules, 1999.: .
Panchayat (Enhancement of cess on Land Revenue and
Distribution) Rules, 1999 . Panchayat Fisheries Service (Recruitment) Rules, 1999 . Panchayat (Gramin Vikas Service Recruitment) Rules, 1999 .. Panchayat (Health Service Recruitment) Rules, 1999 .
Panchayat (Loans from Government or Financial
Institutions) Rules, 1999 . Panchayat (Purchase of material and goods) Rules, 1999 . ..Panchayat Service (Descipline and Appeal) Rules, 1999 .. . . Panchayat Service (Kala Karmi) Recruitment Rules, 1999 . Panchayat Service (Recruitment and General Conditions of Services) Rules, 1999 .
Panchayat (Women and Child Developnll'nt Service Recruitment) Rules, 1999 .
Panchayats (Veterinary Service Recruitment) Rules, 1999 . Zila Panchayats (Accounts) Rules, 1999 .
..-2001 .
Gram Sabha (Appeal) Rules, 2001.. : . Gram Sabha (Audit) Rules, 2001 . Gram Sabha (Budget Estimates) Rules, 2001 . Gram Sabha Obligatory Tax and Fees (Conditions and Exceptions) Rules, 2001. .
Gram Sabha Optional Taxes and Fees (Conditions and Exceptions) Rules, 2001 , .
Gram Sabha (Procedure ofmeeting) Rules, 2001.. . Panchayat Samvida Shala Shikshak (Appointment and Conditions of Contract) Rules, ~1l01
. (Repealed, hence not reproduce,; . Gram Sabha (Sanction ofLoans to the Indigent Persons) Rules, 2001 ; .
24
ALPHABETIC LIST OF MODEL BYE.LAWS
MADE UNDER TIlE ACT
Construction and Maintenance of Play Ground, Club, Gymnasium, Library, Reading-Room,Park etc. Byelaws ... Construction and Maintimance of Sources ofWater for Drinking byCattle Byelaws : .
. Control of Public Disorder Caused by Stray and Mad Dogs Byelaws .
2004
Panchayat and Social Justice Class~III (E""cutive) Service Recruitment Rules, 2004 .
2005
Panchayat Samvida Shala Shikshak (Employment and Conditions of Contract) Rules, 2005 . Gram Sabha (Maintenance of Gram Kosh) Rules, 2005 . Gram Sabha (Procedure ofMeeting of the Committees, Conduct of Business and allied matters) Rules, 2005 .
2006
Panchayat and Social Justice Class~IVServices Recruitment
Rules, 2006 ' ', .
2007
Rojgar Karmi Yojna, 2007 (uls. 70) (Hindi) .
2008
Panchayat Adhyapak Samvarg (Employment and Conditions of Services) Rules, 2008 .
2010
Gram Sabha Swasth Gram Tadarth Samiti (Gathan, Karbar Sanchalan TathaBaithak) Niyam, 2010 , ,..
2012
Gram Sabha (Constitution of Standing Committees, Procedure for Conduct ofBusiness and Allied Matters) Rules, 2012 .....
2013
Panchayat Raj Sanchalnalaya Class-III (Executive) Service Recrui tmen t Rules, 20J3 , .
Panchayat Raj Sanchalnalaya Class-III Ministerial Service Recruitment Rules, 2013 .
Panchayat Raj Sanchalnalaya Class-IV Service and General Conditions of Service Recruitment Rules, 2013 . Panchayat Raj8anchalnalaya (Gazetted) Service Recruitment Rules, 2013 .
I
I
Contents
MADHYA PRADESH PANCHAYATRAJMANUAL
xv
(PR)897
(PR)472
(PR)839
(PR)839
(PR)907
(PR1911
(PR)492
(PR)165
(PR)158
(PR)l11
(PR)131
(PR)122
(PR)145
(PR)918
(PR)914
(PR)925
25
Contents Control on Erection and Extension ofBuildings Byelaws . Fire Extinguishment Byelaws : , .
Regulation and Control Over Shows Entertainment Houses
and Sale ofFood Articles Byelaws .
Regulation of Dharamshala, Sarai, and Rest House
Byelaws, 1998 . Regulating the Keeping of Pigs within the Limits of Gram Panchayat Byelaws .
Regulations of Use of Camping Grounds Bye-laws . Removal ofWeeds Bye-laws : .
OTHER ALLIED ACTS & RULES
M.P. ZILAYOJANA SAMITI ADHlNIYAM, 1995 (N0.19 of 1995) .
-M.P. Zila Yojana Samiti (Travelling Allowance) Rules, 1995 -M.P. Zila Yojna Samiti Nirvachan Niyam, 1995 . -M.P. Zila Yojna Sub-Committees (Composition, Functions, Terms ofMembers and Procedure for the Conduct of
. Business) Rules, 1995 . -ZilaYojana Samiti (Kamkaj Ke SanchalanKiPrakriya) . Niyam, 1999 [Hindi] .....................•............: .
MAHATMAGANDHINATIONALRURALEMPLOYMENT
GUARANTEEACT. 2005 (Central Act 42 of 2005)
M.P.Rules under-
-Mahatma Gandhi National Rural Employment Guarantee (Appointment, Powers and Duties of the Ombudsman) Madhya Pradesh Rules, 2013 .
-M.P.-Social Audit Rules, 2013 .........................•.....................•.•. -M.P. Gramin Rojgar Guarantee Yojana, 2005 .
GRAMNYAYALAYASACT, 2008 (Central Act 4 of 2009) .
-M.P. State Notifications under .
-M.P. Gram Nyayalayas Rules, 2013 .
XVI
MADHYA PRADESH PANCHAYATRAJMANUAL
(PR)928
(~R)922
(PR)917
(PR)915
(PR)924
(PR)921
(PR)920
. (PR)937
(PR)943
(PRJ944
(PR)950
(PR)953
(PR)956
(PR)964
(PR)969
(PR)984
(PRJ999
(PR)1009
26
PAN. RAJ AVAM GRAM SWARAJ ADHINIYAM, 1993 (PA)l
• Section wise Consolidated Outiine of Amendments made in M.P. Panchayat Raj Adhiniyam,.1993 The Act has been amended by the following amending Acts and Notifications :~
1. MP 26 of 1994;
2. MP 32 of 1994;
3. MP 39 of 1995;
4. MP 02 of 1997:
5. MP 19 of 1997:
6. MP 43 of 1997:
7. MP28 of 1998:
8. MP 05 of 1999;
9. Nolfn. 20-3-1999, Pub. on 24-3-1999:
10. MP 14 of 2000;
11. MP 03 of2001:
12. MP 23 of2001:
13. MP 16 of 2004:
. 14:MP08 0(2005;
15. MP 20 of 2005;
16. MP 27 of 2006:
17. MP 18 of 2007;
18. MP 26 of 2011;
19. MP 26 of2012;
20. MP 21 of 2013; and
21. MP 29 of 2013. The Sectionwise -Consolidated Outline 'of -Amendments is as under:~
Citation amended: 3 of 200 1.
Section 1:
(a) Sub-section (1) amended 3 of 2001.
(b) Sub-section (2), proviso added 43/1997. Section 2:
(a) Clauses (i-a) & (ii-a) ins. 18/2007. ,
(b) Clause (iii) subs. 28/1998.. . '. .
(c) Clauses (iv)and (v)subs. 26/94.
(d) Clause (viii) subs. 5/1999.
(e) Clause (xxI amended 16/2004. (0 Clauses (xxiv-a), (xxiv-b) & (xxiv-c) illS. 2G/2012 .. (g)Clause (xxv-a) ins. 43/1997.
(h) Clause (xxv-b) ins. 18/2007.
27
(PA)2 PAN. RAJ AVAM GRAM SWARAJ ADHINIYAM, 1993
Section 5-A: Inserted 3 of 200 I. Section 6: Subs. 3 of 2001.
(a) Sub-section (1) amended 26/94, subs. 16/2004.
(b) Sub-sec. (2) subs. 2/1997, amend. 23/2001, subs. 20/2005.
(c) Sub-section (3), subs. 39/95.
(d) Sub-section (6) ins. 26/94.
(e) Sub-section (7) & (8) ins. 5/1999. S5. 6-A to 6-C: Inserted. 3/2001. Section 7: Subs. 43/1997.
(a) Marginal heading subs. 26/1994.
(b) Sub-section (1) and (2) amend 26/94. (cl Cl. U-I)to U-Iv)ins. 5/199~.
(d) Sub-sec. (1), dS.(k) to (vv)subs. for cl.(k) by 3/2001.
(e) Sub-section (2), cl.(e) subs. 5/1999. (0 Sub-section (2-A) ins. 5/1999. S5. 7-A to 7-M: Inserted 3 of 2001. Section 7-A: Sub-section (1) subs. 16/2004. Section 7-B: Subs. 16/2004.
(a) Sub-sec. (2) subs. 20/2005.
(b) Sub-sec. (3) omitted. 20/2005.
(c) Sub-s.ec. (6) inserted .18/2007- .. Section 7-C: Omitted. 16/2004. Section 7-F: Subs. 16/2004. Section 7-G: Subs. 16/2004 & 20/2005. Section 7-GA & 7-GB: Ins. 16/2004. Section 7-J:
(a) Cl. (c)& (d) of sub-sec. [1) Subs. 23/200 I.
(b) Sub-sec. (4) subs. 23/2001, amend. 16/2004 & 20/2005.
(c) Sub-section (5) omitted 16/2004. Section 10: Proviso subs. 26/94: - ~_. -. Section 13:
(a) Sub-sections [1) and (2) subs. 26/94.
(b) Sub-section (3) omitted 26/94.
(c) Sub-section (4), cl.(i) amended 5/1999. [d) .Sub-sections (5) & (6) amended 18/2007.
(e) Sub-section (6), second proviso omitted 26/94 and remaining proviso omitted 5/1999.' .
(0 Sub-section (7) omitted 26/94 and ins. 5/1999. Section 14: Sub-section (2) amended 26/94.
Section 16: omitted 26/94.
Section 17:
(a) Sub-section (2), d. (I), proviso added 43/1997.
(b) Sub-section (3) amended 18/2007. i
28
)05.
).
ining PAN. RAJ AVAM GRAM SWARAJ ADHINIYAM, 1993 (PAl3 (c)Sub-section (4)-Proviso added. 39/95.
(d) Sub-section (5)subs. 26/94 & 20/2005. ; Section 18:
(a) Sub-section (1)& (2) subs. 26/94. (b)Amend. 16/2004.
Section 19: Subs. 26/94.
Section 20: Sub-sec.(2) proviso, cl.(i)subs. 26/94. Section 21:
(a)Sub-section (3), Clauses (I)& (iii)amended 18/2007.
(b) Sub-section (4) Ins. 2/1997. Section 21-A Ins. 5/1999. , Section 22:
, (a) Sub-section (1), cl.(ii)Omitted 26/94. cl.(iii) further proviso ins.\, ~ 2/1997 & Cl.(iv)ins. 2/1997.
~ (b) Sub-section (2),(3),(4),(5)&(6)omitted 26/94.
n (c)Sub-section (7) subs. 26/94.
~ Section 23:
~ (a)Sub-section (3) amended 26/94.
"
, (b)Sub-section (3)cl.(i),proviso added 43/1997, amended 5/ 1899. (c)Sub-sections (4) & (5)amended 18/2007.
(drSub'sectioii'(5)ameiiiled213/94,'Pto~isobei~w omitted 5/1998. (e)Sub-section (6)ins. 5/1999.
Section 24: Omitted 26/94.
Section 25:
(a) Sub-section (1) subs. 26/94 and 20/2005.
(b) Sub-section (2), cl.(i), (i)proviso ins. before existing proviso 43/1997. (ii)existing provisos amended 43/1997 & 18/2007. (c)Sub-section (3) subs, 26/94. .. _ Section 27: Sub-section (2), Proviso subs. 26/94. Section 28:
(a)Sub-section (l)..amended 32/1994.
(b) Sub-section (3),Clauses (I)& (iii)amended 18/2007. (c)Sub-section (4), ins. 2/1997.
Section 29:
.
(!J.)Sub-section (1), Clause (ii)Omitted 26/94.
(b) ~ub;!"ection OJ Cl!J.use.(v),further provlko ins. '2/ 1997.
(C) Sub-section 0), Clause (vi)& proviso ins. 2/1997 .
. (d) Sub.section (2)and (3)omitted 26/94. (e)Sub-section (4)subs. 26/94. Section 30
(a)Sub-sec. (3),cl.(i),proviso added 43/97 and Cl. amended 5/99. (b)Sub-sections (4) & (5)amended 18/2007.
29
,
',:
I. ,
I
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I
!
(PA)4 PAN. RAJ AVAM GRAM SWARAJ ADHINIYAM, 1993
(c) Sub-section (5), proviso omitted 5/1999,
(d) Sub-section (6) inserted 5/1999. Section 31: Omitted 26/1994. Section 32:
(a) Sub-section (I) subs, 26/1994 & 20/2005,
(b) Sub-section (2), cLU) amended 43/1997 and its 1st proviso amended 18/2007 and 2nd proviso subs, 5/1999.
(c) Sub-section (3) subs. 26/1994. Section 33-A, Ins. 2/1997. Section 34: Sub-section (2) Proviso. cL(b) omitted 26/94 Section 35:
(a) Sub-section (I) amended 32/1994.
(b) Sub-section (3), Clauses (i) & (iii)amended 18/2007,
(c) Sub-section (4) ins. 2/1997. Section 36:
(a) Sub-section (I), Clauses (ca), (cb) & (cc) ins. 16/2004.
(b) Sub-section (I), CL(ca), subs. 8/2005 & omitted 18/2007.
(c) Sub-section (i), cL (el substituted 5/1999.
(d) Sub-section (2)(a) amended 26/1994 and 5/1999.
(e) Sub-section (I), cL (1)ins. 14/2000,
(f) Sub-section (I), cL [ml.deleted 27/2006 ..' Section 3'S: "
(a) Sub-section (I) subs. 26/94. (bl Sub-section (I) cL (b) subs, 43/1997. (c)Sub-section (2) omitted 43/1997, Section 39:
(a) Sub-section (I), cL(b) omitted 43/1997.
(b) Sub-section (2) subs. 26/2012.
(c) Sub-section (3) subs. 43/1997,
(d) Sub-section (4) amended 26/94. Section 40:
(a) Sub-section (I), cL(c) ins, 2/1997, proviso added 43/1997.
(b) Sub-section (I), llnd proviso subs. 20/2005,
(c) Sub-section {2)amended 26/94. Section 41: Subs, 26/94. S.42-A: inserted 26/94, S.43: Subs. 26/94,
S.44:
(a) Sub-section (3) amended 43/1997,
(b) Sub-section (4). (5),(6)& (7) amend. 26/94, [c) Sub-section (5) amended 26/2012.
S.47:
(a) Sub-section (I) amended 26/94,
• I'
I ,
I I
!
I I
I , ,
I ,
I
'/
I .
:,
I .
I
I'
I
I
I,
--~
30
• PAN. RAJ AVAM GRAM SWARAJ ADHINIYAM, 1993 (PAl5
;t proviso
2007.
'1997. ! (b) Sub-section (2-A)ins. 26/94. 1 (c)Sub-sec.(4), Third proviso inserted 26/94 & omitted 39/1995. l (d) Sub-section (4-A), inserted 39/95. ~ (e)Sub-section (5), subs. 26/94. I (I)Sub-section (5), subs. 32 of 1994. , ,. Ss.47-A & 47-B: Inserted after S.47 by 39/1995.
Section 49: Amended 3 of 200 I.
Section 49-A:
(a) Ins. 2/1997.
(b) Cl.(ix) ins. 43/1997.
(c) Certain items omitted and some inserted 3 of 200 I. Section 50: Sub-section (I-a) ins. 2/1997. 'Section 51: amended 43/1997.
Section 52:
(a)Marginal note amended 26/1994.
(b) Sub-section. (I) subs. 2/1997.
(c) Sub-section (2) subs. 43/1997. Section 53:
(a) Sub-section (I) subs. 43/1997.
(b) Sub-section (I), cis. (a) subs. 26/2012. Section 55: Sub-sec.'(3;a) ins.' 5jW99." C"",: ,'C" -'-, Section 56:
(a)Amended 26/1994.
(b) Sub-section (2), proviso subs. 28/1998. Section 56-A: Inserted 18/2007. Section 60: Amended 26/1994.
Chapter VI-A: Ins. 43/1997,
Ss. 61-A to 61-G Ins. 43/1997. Section ,6l,A: Subs. 21/20L3~
Section 6l-B: Amended 21/2013. Section 6l-C: Subs. 21/2013.
Section 6l-D: Sub-section (3) subs. 21/2013. Sectiort6l-E: Subs. 21/2013.
Section 6l-EA: Ins. 21/2013.
Section 6l-F:
(a) Sub-sections (I), (2) & (3) renumbered 29/2013.
(b) Sub-section (I) Ins. 29/2013., Section 66:
(a) Sub-section (6) amended 26/1994. , . -. " . , .
(b) Sub-sections (4), (5), (6) amended 32/1994 [7.10.94]. (c)Sub-section (4) subs. 43/1997.
(d) Sub-sections (5)& (6) subs. 2/1997.
(e) Sub-sections (5) & (6) omitted 43/1997.
,.
J
31
Section 69 (a)Sub-section (1), opening para. subs. 26/2012. (b)Sub-section (1),proviso after first added 2/1997. (c)Sub-section (2)amend 26/94, subs. 32/94 £Ir- 43/1997.
(d) Sub-section (3)subs. 26/94 & again 2/1997. (e)Sub-section (4)& (5)amended 26/94. Section 72: amended 26/94.
Section 74: (a) subs. 2/1997.
(b)Sub-sections (1)& (2)amended 23/2001. Section 75: proviso added 2/1997. Section 76: (a) subs. 2/1997.
(b)Sub-section (2)subs. 23/2001. Section 76-A: (a) subs. 2/1997.
raj Sub-section (1)amended 43/1997. (b)Sub-sections (1)& (2)omitted 23/2001. (c)Sub-section (4)amended 26/2012:
Section 77-A: Inserted 3 of 2001. Section 82: Subs. 26/1994 .
.Section 85:
Sub-section (2) subs. 2/1997 & amended 43/1997. Section 86:
(a) Siib-sectibit(l) subs. 43/ 199'7.. (b)Sub-section (2)amended 43/1997. S.89: Amended 16/2004 & 18/2007. S,92: Amended 18/2007.
(al Sub"sections (1)& (5)amended 16/2004. (b)Sub-section (4-a) ins. 26/2012, (c)Sub-section (5)amended 26/1994. Section 96: Amended 3 of 2001. Section 97: Amended 3 of 2001. Section 98:
(a)Marginal heading amended 26/1994, (b)Sub-section (3)suUs. 26/1994. Section 107: Amended 3 of 2001. Section 108: Amended 3 of 2001. Section 109: Amended 3 0[,2001. Section 110: Amended 3 of 2001. 'Section 118: Amended 3 of 2001. Section 120: Amended 3 of 2001. Section 122:
(alAmended 26/1994 and 3/2001. (b)Sub-section (3)subs. 26/2012, Section 123: Amended 3 of 2001.
(PA)6
,.
PAN. RAJ AVAM GRAM SWARAJ ADHINIYAM, 1993
• i
I
1
,S
i
'.
PAN. RAJAVAM GRAM SWARAJ ADHINIYAM, 1993 (PA)7
Section 124: Amended 3 of 2001.
Section 127:
(a) Sub-section (1) amended 39/1995 & 43/1997.
(b) Sub-section (2) amended 39/1995. Section 128: Amended 3 of 2001. Section 129:
(a),Subs. by 26/2011.
(b) Sub-section (3) ins. 26/2012. Chap. XIV-A: SS.129-A to 129-F Ins. 43/1997. Section 129-B: Sub-sec. (3) subs. 23/200i & 18/2007. Section 129-C: Cis. (ll)& (iv)omitted 5/1999. Section i29-D: Cis: (i), (iii), (iv). (v)& (vi)omitted 5/1999. Section 129-E: Sub-section (I) amended by Notfn. dt.20-3-1999. pub. on 24-3-1999 in its application to the Scheduled Area. Section 130: Sub-section (4) subs. 26/1994. Schedule I:
(a) Part A, item 7 ins. 19/1997 & omitted 43/1997.
(b) Items 1 to 4 omitted. Schedule I-A: Ins. 3/2001. amended 18/2007. Schedule II: Certain items omitted 3 of 2001. Schedule II-A: Inserted 3 of 2001. " " .
•
33
THE MADHYA PRADESH
PANCHAYAT RAJ AVAM GRAM
SWARAJ ADHINIYAM, 1993
CHAPTER I.PRELIMINARY
1. Short title, extent and commencement. .
2. Definitions. . , .
(PA)!6 (PA)!7
(PA)20
(PA)20
(PA)20
(PA)22
{PA)22 .
[PA)28
(PA)29 -----...
[PA)29
[PA)30
(PA)34
{PA)34
(PA)35
(PA)35
(PA)35
(PA)35
(PA)36
(PA)36
[PA)36
[PA)36
(PA)36
[PA)37
[PA)38
(PA)38
PANCHAYAT RAJ AVAM GRAM SWARAJ.ADHI., 1993
CHAPTER II.GRAM SABHA
Notification of village ,. List of voters of a village .
Registration of voters of a village . Constitution and ir~rorporation of Gram Sabha ~ . Meeting of Gram Sabhd ~ .
Special Meeting of Gram Sabha , .
Secretary of Gram Sabha._ ; ',
Decision by Brani Sabha ~'-:.:: ,: . Powers and functions and Annual meeting of
Gram Sabha. .. . Standing Commiltee and Adhoc Committee of Gram Sabha. .. .
CompoSition and functions of standing committee ..
Omitted. Powers, functions and duties of Committees .
-Removal.of lllen1ber , .
Powers and duties of Gram Nirman Samitl and Gram Vikas Samiti. .
Secretary of Standing Committee . PreparIng of long term development plan of Gram Sabha. . .
Disciplinary action against preSid,~nt and members of the Gram Nirman Samiti and Gram Vikas .
Appeal in a Committee against the \lecision of Gram Sabha. .. , .
Budget. .
Gram Kosh. .. .
Account and Audit. .
Control over Government employees . Power of State Government in relation to functions
of Gram Sabha. .. . 7-A.
3.
4.
5.
5-A
6.
6-A. 6-8. 6'C.
7.
7-8. 7-C. 7-0. 7-E. 7-1".
(No. I of 1994)
CONTENTS
7-H.
(PA)S
7-1. 7-J. 7-K. 7-L. 7-M. 7-G. 7-GA 7-GB.
,
, r
,
34
."
PANCHAYAT RAJ AVAM GRAM SWARAJ ADH/., /993
CHAPTER III-ESTABLISHMENT OF PANCHAYATS
8. Constitution ofPanchayats .
9. Duration of Panchayat. .
10. Establishment of Gram Panchayat. Janpad Panchayat and Zila Panchayat. .
II. Incorporation of Panchayats .
12. Division of Gram Panchayat into wards .
13. Constitution of Gram PanchayaL .
14. Qualification to vote and to be candidate .
15. Prohibition of simultaneous membership .
16. Omitted.
17. Election of Sarpanch and Up-sarpanch :
18. 'Handing over charge by out goingSarpanch or.
President of Gram Nirman Samiti .
19. Notification of election .
20. First meeting and terms of office .
21. No confidence motion against Sarpallcll and Up-
Sm'panch. . .
21-A, Recalling of office bearers of Gram Panchayat. .
22. COlnposition of .Janpad Panchayat. .
23. Division of Block into constituencies .
24. Omitted. - "._' .
25. Election of President and Vice-President ofJanpad Panchayat. ..........•..........-: .
26. Publication of names of members, President and Vice-President. . .
27. First meeting and term of office : .
28. Noconfidence against President or Vice-President. .
29. Constitution ofZila Panchayat .
30. Division of district into constituencies .
31. Omttted.
32. Election of President and Vice-President ofZila Panchayat. . .
33. Publication of names ofmembers, President and Vice-President of Zila Panchayat .
33-A. Correction of clerical error or omission .
34. First meeting and term of office , .
35. No-confidencemotion against President and Vice- President ofZila Panchayat .
36. Ri~qualificatipn fqr being offiqebearer of 'Panchayat. - .
37. Registration of office-bearerofPanchayat.. .
38. Fillingup of vacancies .
39. Suspension of officebearer of Panchayat. .
40. Removalof officebearer of Panchayat .
41. Bar to hold more than one office .
(PA)9
(PA)38
(PA)38
(PA)39
(PA)39
(PA)40
(PA)40 .
(PA)42
(PA)42
(PA)42
(PA)44
(PA)45
(PA)45
(PA)46
(PA)58
(PA) 59
(PA)59
(BA)61
(PA)62
(PA)G3
(PA)63
(PA)65
(PA)66
(PA)67
(PA)68
(PA)68
(PA)68
(PA)69
(PA)70
(PA)79
(PA)79
(PA)81
(PA)85
(PA)92
35
(PA)94
(PA)96
(PA)96
(PA)96
(PA)99
(PA)99
,
(PAI9.9
(PA)100
(PA)lOO (PAll01 (PA)l03 (PAll03
(PA)105
(PAll06 (PAll06 (PAll07 (PAllOS (PAllOS (PAllOS (PAll09
(PA)109
(PA)109
(PAll10 (PAll10 (PAll11 (PAll11
PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993
61-A. Definitions. .. .
61-B. Registration of Coloniser . 61-C. Development of Colonies , . 61-D. Punishment for illegal Colonization .
CHAPTER IV-CONDUCT OF ELECTION
42. Conduct of Election. (PA)93 42-A. Power to appoint officers and staff and to assign duties and functions to them. (PA)94
43. Powers to make rules. (PA)94
CHAPTER V.CONDUCT OF BUSINESS AND THE PROCEDURE
AT THE MEETING OF THE PANCHAYAT
44. Procedure of meeting .
45. Reconsideration of subjects finally disposed of by Panchayats. . .
46. Standing Committees of Gram Panchayat. .
47. Standing Committees of Janpad Panchayat and Zila Panchayat. .. : : .
47-A. Resignation. .. .
47-B. Dispute regarding validity of election of Member or Chairman. . .
4S. Powers and duties of Sarpanch. UpSarpanch. President and Vice- President.. .
CHAPTER VI.FUNCTIONS OF PANCHAYATS
49. Functions of Gram Panchayat. . 49-A. Other functions of the Gram Panchayat. .
50. Function~ o'fJanpad Panchayat. .
51. Entrustment of certain functions by State Govem- ment to Janpad Panchayat.. .
52. Functions of Zila Panchayat .
53. Powers of State Government in relation to func-
tions of Panchayats : .
54. Powers of Gram Panchayat as to public health facilities and safety .
55. Control of erection of building .
56. Hindrances, obstructions and encroachments
upon public streets and open sites . 56-A. Delegation of powers ofGram Panchayat under Section 55 and 56. . .
57. Powers to name streets and number of building . 5S. Regulation of markets or melas .
59. Powers of Janpad Panchayat to turn, divert. dis-
continue or close roads ~' .
60. Encroachments upon road and land vested in Jan- pad Panchayat. . , .
61. Power to compromise , .
CHAPTER VI.A. COLONIZATION
(PA)lO
36
••
PANCHAYAT RAJ AVAM GRAM SWARAJ ADHl., 1993 (PA)11 (PA)l12
(PA)112
(PA)114
(PA)l14 (PA)l15 (PA)l15
(PA)115
(PA)l16 [PA)l16
................................................
Punishment for abatment of Offence of illegalcon-
struction. . , , .
61-E.
6 I-EA. 61-F. Transfer of plots in area. of illegal diversion of il- legal colonization to be.void (PA)l12
61-G. Forfeiture of the land'involved in illegal colonIza- t~on. (PA)l13
CHAPTER VII.FUI'ID AND PROPERTY OF PANCHAYAT
62. State Government may vest certain property in Panchayai. .
63. Assignment of funds to the Panchayat .
64. Grant-in-aid to Panchayat. .
65. Transfer of immovable property .
66. Panchayat Fund. .. .
67. Mode of executing contract. ..~ .
68. Powers to make grant~in-aid .
CHAPTER VIII-ESTABLISHMENT, BUDGET AND
ACCOUNTSOFPANCHAYAT
,
69. Appointment of Secretary and Chief Executive Of- iker. (PAll16
70. Other officers and servants ofPanchayat [PA)l21
71. Deputation of Government servant [PA)l24.
72. Functions of Chief Execrttive Officer and Secretary. . (PA)124 •
73. Budget and annual Accounts. ...•............................. (PA)l25
CHAPTER IX.TAXATION AND RECOVERY OF CLAIMS
74. Power to levy cess on land (PA)l25
75. Duty on transfer of property within block................ [PA)l26
76. District Panchayat Raj Fund. [PA)l26 76-A. Distrihutlon of amount amongst Panchayats. [PA)l27
77. Other taxes. [PA)l27 77-A. Power to impose tax ........................•....................... (PA)l28
78. Power of State Government to regulate taxes [PA)l28
79. Appeal against taxation........................................... (PA)128
80. Lease of market fee etc. [PA)l28
81. Recovery of arrears ;.................................... (PA)l28
82. Penalty for evasion. [PA)l28
83. Power of State Government in regard to relief in taxes. (PA)l29
CHAPTER X.CONTROL . ,
.:"84.JpsPec1jon of.work ofPanchayats (PA)l29
85. Power to suspend execution of orders etc. [PA)l29
86. Power of State Government to issue orders direct- ing Panchayat for execution of works in certain
cases. [PAl133
87. Power of State Government to dissolve Panchayat for default, abuse of powers etc (PA)136
37
IT I
,
;
I ,
(PA)12
PANCHAYATRAJAVAMGRAMSWARAJ ADHI.,1993
88. Inquiry into affair" of Panchayal. ............................ [PA)l42
89. Liability of Panch etc. for loss. misapplication ......... (PA)l42
90. Disputes between Panchayats and other local
authorities. ................,...............................
(PA)l46
91. Appeal and revision ................................................. [PA)l46
92. Power to recover:. records, articles and money ..........
(PA)l5I
93. Delegation of powers' ............................................... (PA)l53
94. General Power of Control. ........................................ (PA)l53
CHAPTER XI.RULES AND BYELAWS
95. Power to make rules ................................................ (PA)l54
96. Byelaws. ................................................
(PA)l54
97. Model Byelaws. ................................................
(PA)155
CHAPTER XII.PENALTY .
98. Penalty [or acting as panch, menlber, sarpanch.
up-sarpanch. President. Vice-President. Zila Prad- han, Zila Up-pradhan when disqualified ................. (PA)l55
99. Penalties for interested members voting................ "
{PA)l55
100. Penalty for acquisition by a member, office bearer or servant of interest in contract. ............................
{PA)155
101. Wrongful restraint of officers. etc ............................ (PA)l56
.\102. Prohibition against obstruction of member etc. of
Panchayats. (PA)156 I................................................ ,
103. Prohibition against removal "ofobliteration notice.: .. (PA)156
104. Penalty for not giving information or giving false in- fonnation.
................................................ (PA)156
105. Prohibition of bidding ..... "........................................ (PA)157
106. Procedure to make good the damage to any Panchayat. ................................................
(PA)157
CHAPTER XIII.MISCELLANEOUS
107. Indemnity for acts done in good faith ...................... (PA)157
108. Bar of suit in absence of notice ...............................
[PA)157
\109.
Certain suits against members. officers. etc. to -be
defended at cost of Panchayat or Gram Sabha ........ (PA)158
110. Bar of other proceeding in respect of tax etc ............ (PA)158 Ill. Members and servants of Panchayat to be public
servant. ................................................
(PA)l58
112. Vacancy or defect in constitution o~procedure.
etc. not to invalidate Act of Panchayat.. ................... [PA)158
113. Acquisition of land. ................................................
(PA)158
114. Central Government or State Government not. to obtain licence of permission ....................................
(PA)159
115. Power of Panchayat to borrow money ...................... (PA)159
116. Writing off of irrecoverable sums and unuseful (PA)159 material. . ...............................................
117. Prohibition of remuneration to members, etc ..........
[PA)159
118. Records of Panchayat or Gram Sabha open to in- (PA)160 spection. . ...............................................
38
PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993
(PAl13
(PA)17S
(PA)l79 (PA)lSO (PA)lSO (PAl160 (PA)l60
(PA)160
(PA)l60
(PAI17S
(PA)l7S
I
I
I
I
119. Method of serving documents, etc .
120. Entry lor purposes of Act etc c .
121. Bar to interference by courts in electoral matters .
122. Election petition. .. .
123. Power to expel persons who refuse to pay fee . '124. Panchayat or Gram Sabha in default of owner or
occupier may execute works and recover expenses.
125. Change of headquarters of Gram Panchayat,
division, amalgamation and alteration of
Panchayat area. . .
126. Disestablishment of village .
127. Alteration in limits of block and Zila Panchayat. . 12S. Management of Government lands .
CHAPTER XIV.AUDIT
129. Audit of Panchayats. (PAlISO
CHAPTER XIV.A - SPECIAL PROVISIONS FOR PANCHAYATS
IN THE SCHEDULED AREAS
129-A. Deflnition.s.. (PA)IS1 129-B. Constitutio", of Village and Gram Sabha (PA)lSI 129-C. Powers and functions of Gram Sabha...................... (PA)IS2 129-0. Functions of Gram Panchayat. (PA)lS3
129-E .. .Reservation of seats ::::'.::'::::; ,,:.,........•... " •.••...;••.'{PA)1S3. 129-F. Powers of Janpad and Zila Panchayat. {PA)lS5
CHAPTER XV.REPEAL
130. Repeal and saving (PA)lS5
131. Savings as to existing permanent employees (PA)lS6
132. Power to remove difficulties. (PA)IS6 SCHEDULES I to IV ,fPA)IS7 -190
THE MADHYAPRADESH PANCHAYAT RAJ
AVAM GRAM SWARAJ ADHINIYAM, 1993
(No. I of 19(4) {Received the assent of the Governor on the 24th Jaiulary, 1994. assentjlrst published in the "Madhya Pradesh Gazette (Extraordinary)" dated the 25th January, 1994J.And subsequently amended by:-
'.
1. M.P. Act No. 26 of 1994. w.e.f.30.5.1994:
2. M.P. Act No. 32 of 1994. w.e.f. 7,10.1994; and ,.~. M,p.,'\ct l'!9.'3~.o~ 'l~9!J, w.e.f,.19.12.1995.
4. M.P. Act NO.2 of 1997, w.e.f. 7-1-1997 but SS.16 & IS from 1-1O-199S.
5. M.P. Act No. 19 of 1997.
6. M.P. Act No. 43 of 1997. w.e.f. 5-12-1997.
7. M.P. Act No. 2S of 1995, w.e.f. 4-S-199S. S. M.P. Act NO.5 of 1999, w.e.f. 5-4-1999.
39
COMMENTARY
I. Intention of the Govemment.-It wouldbe clear from the Preamble that the intention ofthe Governmentwas to consolidateand amend the law relating to establishment ofthe Panchayats and the laudable was to ensure effective involvement of the Panchayat Raj Institution- in the LocalAd-- ministration and DevelopmentActivities.Ajay Tripathi v. State of M.P., 2009(1) MPLJ 75 = 2009 (I) JLJ 257 = 2008 (5)MPHT 195 (D.B.).
2. Purpose.-Tbe enactment is for the purpose of acquiring welfare of citizens. Kamal Kishore v. Janpad Panchayat, Nalkheda, 2000 (1) MPLJ 309 = 1999 (2)MPLJ 470 = 2000 (1)MPHT = 212 = 1999 (2) JLJ 370.
3. Principles of Interpretation of Statutes.-[ I] Tbe law in the Court's keeping is just not a system of logical abstraction. Nor it is a bucket of readymade answers determined by any general formula or principle in advance. In a famous passage Mr. Justice Holmes said:
"All rights tend to declare themselves absolute to their logical extreme. Yet all in fact are limited by the neighbourhoodofprinciples of policywhich are other than those on which the particular right is founded, and which becomesstrong enough to hold their ownwhen a certain point is reached. The boundary at which the conflicting inter- ests balance cannot be determined by any general formula in advance,
9. Notfn. F.I-8-97-XXII-P-2.-Dated 20th March 1999, Pub.in Rajpatra Ext. dated 24th March 1999, p. 334, amending S.129-E(I) in Its app~'cation to the Scheduled Area.
10. M.P.Act No. 14 of 2000, w.eJ.26-1-2001.
II. M.P. Act NO.3of 2001, w.eJ. 26-1-200 I.
12. M.P. Act NO.23of 2001, w.e.f. 10-10-2001.
13. M.P. Act NO.16of 2004, w.e.f. 1-1-2005 (except the amend- ments made in S.36. which came into force on 15-12-2004).
14. M.P. Act NO.8of 2005, w.e.f. 12-4-2005.
15. M.P. Act NO.20of 2005, w.e.f. 30-8-2005.
16. M.P. Act 27 of 2006, w.e.f. 1-9-2006.
17. M.P. Act 18 of 2007. w.e.f. 25-5-2007.
18. M.P. Act 26 of2011, w.e.f. 10-8-2011.
19. M.P. Act 26 of2012, w.e.f. 23-5-2012.
20. M.P. Act 21 of2013, w.e.f. 24-4-2013.
21. M.P. Act 29 of2013. w.e.f. 10-9-2013. Note:-The Provisions of the Madhya Pradesh Panchayat Raj (San- shodhan] Adhiniyam, 200 I shall not apply to the Scheduled areas so far as they are inconsistent with the provisions ofChapter-XIV-A of the Act and the provisions of "ThePanchayats (Extension to the Scheduled Areas) Act, 1996 (No.40 of 1996)".
An Act to consolidate and amend the law relating-to estab-
lishment ofPanchayats with a view to ensure effective involvement
of the Panchayati Raj Institutions in the local administration and development activities
PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993(PA)14
40
•
PANCHAYAT RAJ AVAM GRAM SWARAJ ADH1., 1993
(PA)15
but points in the line are helping to establish it, are fixed by decisions that th}s or that concrete case falls on the nearer or further side."
Hudson County Water Co. v. Macrter, (1907) 209 US 349, (355-356). [2]It is true when a word has been defined in the interpretation clause, prima facie that definition governs wherever that word is used in the body ofthe statute unless the context requires otherwise. "The context"
as pointed out in the bookCross- Statutory Interpretation (2nd Ed. 43)
"is both internal and external". The internal context requires the interpreter to situate the disputed words within the section of which they are part and in relation to the rest of the Act.The external context involve determining the meaning from ordinary linguistic usage (in- cluding any special technical meanings) from the purpose forwhich the provision was passed, and from the place of the provisions within the general scheme of statutory and common law rules and principles. [3J To place a reasonable construction on any particular statutory prov,ision it will be the duty of the Court not only to read the provision first literally to construe it on its plain language but in order to clear doubts to read it also in its context and setting in conjunction with other cognate or coilateral provision of the same enactment. This course Is verily mandated by the superior and progressive norm of 'purposive interpretation' to advance and promote effectively the legis- lative Intent and object. Lest social welfare legislations may lose their force, efficacy and relevance upsetting the constitutional order. Lal- taprasad v. Ramcharan, '1989 MPW 233 .
. [41If the words used are capable of one construction only, then it would not be open to the Courts to adopt any other hypothetical construction on the ground that such construction is more consistent with alleged objects and policy of the Act. Shivrqj v. Ashalata, 1989
MPW202.
[5) A decision cannot be applied as a precedent when there Is a difference In language of the provision. Ghanshyamdas Gupta v. Devilal, 1989 MPRCJ 173 (SC).
4. Legislative intent.-[l] Great artistry on the Bench as elsewhere is, therefore, needed before we accept, reject or modify any theory or principle. Law as creative response should be so interpreted to meet the different fact situations corning before the Court. For, Acts of Parliament were not drafted with divine prescience and perfect clarity. It Is not possible for the legislatures to foresee the manifold sets of facts and controversies which may arise while giving effect to a particular provision. Indeed, the legislatures do not deal with the specific con- troversies. When conflicting interests arise or defect appears from the .l'\Ilgul\ge of the statute, the Court. by consideration of the legislative. intent must supplement the written word with "force and life".See, the .observation of Lord Denning in Seaford Estate Ltd. v. Asher, (1949) 2 !ill 481 at p. 498. Pushpa Devi v. Milkhi Ram, AIR 1990 SC 808. [2J .Where the language of the "tatute is clear, plain and unambiguous, it IS the plain duty of the Court to give effect to it. No amount of hardship would call for not faithfully implementing the mandate of the Leglsla- ture.Bihari Choudhari v. State of Bihor,1984 UJ (SC) 619.
41
- , 'I
(PAJ1G
PANCHAYATRAJAVAMGRAMSWARAJ ADHl.,1993 S.l
.. ;
i, ,
, ,
[31 It is a settled principle that the interpretation of the provisions of a statute should conform to the legislative intent as far as possible and tbe Courts should not take a narrpw or restricted view which will defeat the purpose of the Act. Vatanmal v. KaUashnath, 1989 MPRCJ
198. .
[4] Presumption is that a legislature.never useS surplusage of words. The meaning of statute which leads to manifest contradiction, or to some inconvenience or absurdity, hardship, injustice or that may do violence to legislative Intent is to be avoided. Interpretation of statutes should be reasonable and sensible. Shriniwas v. KeshJichand,
1985 RAJ LR 57.
5. Legislative drafting.-Legislatlve drafting will reach its peak of glory when perfection Is attained In demonstrably manifesting the legislative Intent by unequivocal language. But It is equally undeniable that language at Its best is a very imperfect vehicle cifconveying the Intent of the speaker. Legislature speaks through legislation and tries its utmost to convey what It intends to do by the legislation but even best of draftsmen cannot claim to attain perfection. State of Karnataka
v. Hansa Corporation. AIR 1981 se 463.
6. Marginal Note.-The marginal note to a section cannot be referred to for the purpose of construing the section but it can certainly be relied upon as Indicating the drift of the section or. to use the words uf Collins MI{in Busher v. Hammond, (1904) 2 KB 563. to show what the section is dealing with. It cannot control the Interpretation ofthc words of a section particularly when the language of the section is "k, II and unambiguous but, being part of the statute.1t prima facie 11lI' nishes some clue as to the meaning and purpose of the section. Bengal Immunity Co. Ltd v. State of Bihar. AIR 1955 SC 661 = (1955) 2 SCR
603 Ref. KP. Varghese v. LT. OffICer.Ernakulam, AIR 1981 se 1922.
7. Retrospective operation.-The rule of construction of statutes is that no statute, unless It be a statute dealing with procedure only, should be construed to have a retrospective operation unless It so provides either expressly or by necessary Implication or intendment and a statute Is not be construed to have greater retrospective opera- tion than Its language renders necessary. When a statute deprives a person of his right to sue or- affects that right, Its retrospective character must be clearly expressed. Gokuldas Pagelria v. Parmanand, AIR 1967 MP 265=1967 JW 581=1967 MPW 564.
Be it enacted by the Madhya Pradesp. Legislature In the Forty- Fourth Year of the Republic of India as follows:-
CHAPTER I-PRELIMINARY
1. Short title, extent and] commencement.-(I) This Act may be called the Madhya Pradesh IPanchayat Raj Avam Gram Swarajl ,\c1hiniyam, 1993
1 Subs. by M.P.Act 3 of2001. w.e.f.26.1.2001. 1-'
I
! , '
42
"" . ,
COMMENTAHY
I Ins.byMP43of1997(5-12-1997).
2 Ins.byMPAct18of2007125-5-20071.
3 Ins.byMPAct18of2007125-5-20071.
4 Subs.byMPAct28of199814-9-1998J.
5 CIs.(tv)and (v) subs.byM.P.26of1994(30.5.94J.
6 Subs.byM.P.Act5 of199915-4-19991.
Gram Sabha.-[lJ In the Constitution (SeventyThirdAmendment)Act, 1992 [20-4-1993J, the term 'Gram Sabha' has been defined thus-
"Gram Sabha" means a body consisting of persons registered in the
electoral rolls relating to a village comprised within the area of Panchayat at the village level." .
~12J:9au_s~(yi,iiLqfsgcii0'l2definessimilarly'by'sayingthat it is a body
consisting of persons registered in the electoral rolls relating to a revenue
(2) It extends to the whole of Madhya Pradesh:
I[Provided that it extends to the Scheduled Areas subject to the exceptions and modifications as are provided in Chapter XIV-A.]
(3) It shall come into force at once.
2. Definitions.-In this Act, unless the context otherwise re-
quires:-
(I) "block" means such area in a distlict as the Governor ma)' 'specify to be a block under sub-section (2) of Section 10: . 2[(i-a) 'Committee of Gram Sabha' means standing committee. ad n-;;'ccommittee or any other committee of members of Gram Sabha];
(ii) "Cooperative Society" shall have ihe same meaning assigned to it in the Madhya Pradesh Cooperative Societies Act, 1960 (No. 17 of 1961);
3[(ii_a)'Development Commissioner' shall have the same. meaning as assigned to it in clause (h) of Section 2 of the Special Economic Zones Act, 2005 (28 of 2005));
4[(iii)'District' means a district notified by the State Government to be a distlict for the purpos.es of this Act, and includes one or more revenue distlicts so modified].
".. .5[(iv)"Election" means an election fill a seat or seats in a Panchayat and includes election of Sarpanch of Gram.Panchayat.. __ ",eccc ._' (v)' "Election Pr6ceedlngs"'meansth'e proceedings commencing from the issue ofthe notice for election and ending Withthe declaration' of results of such election.]
(vi) "factory" shall have the same meaning as assigned to it in the Factories Act. 1948 (LXIII of 1948);
(vii) "Gram Panchayat" means a Gram Panchayat established under sub-section (1) of Section 10;
6[(viii)'Gram Sabha' means a body consisting ofpersons registered in the electorai rolls relattng to a revenue village or forest village' complised Within the area of the Gram Panchayat].
(PA)17PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993
8.2
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i
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I
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CJ
of on, ay
of
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1e es 'n ca )e Iy Is it
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,
•
0
t i , -
,
43
•
1 Subs. for thewordsMJanpad Panchayae byM.P. Act 16 of 2004; w.e,f. 1-1.2005
COMMENTARY
Prescribed Authority,- ThemembersofJanpad Panchayat submitted a No ConfidenceMotion to the Add!.Collectorwho convenedthe meeting ofJanpad Panchayat and petitioner challengedthe legality ofthe order to
,
I
I
I
I
I
8.2PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993
(ix) "Janpad Panchayat" means a Janpad Panchayat established under sub-section (2) of Section 10;
(x)"LocalAuthority" shall have the same meaning as assigned to it in the Madhya Pradesh General Clauses Act, 1957 (No.3 of 1958); (xi)"Member"means a panch of a Gram Panchayat, a member of a Janpad Panchayat or a member of a Zila Panchayat, as the case may be;
(xii)"offensive matters" include animal carcasses, dung. dirt,
sewage or putrid substances or filth of any kind;
(xiii) "Officebearer"means a panch, sarpanch or upsarpanch of a
gram panchayat, a member, President or vice-president of a Janpad Panchayat or a member, or president or vice-president of Zila Panchayat, as the case may be;
(xiv)"Other Backward Classes" mean category of persons belong- ing to backward classes as notified by the State Government;
(xv) "Owner" when used wtth reference to any land or building includes the person recetving the rent of the land or building or of any part of the land or building, whether on his own account or as agent
or trustee for any person or society or as a receiver;
(xvi)"Panch" means a panch of a Gram Panchayat; (xvii)"Panchayat" means a Gram Panchayat, a Janpad' Panchayat or a Zila Panchayat, as the case may be;
(xviii)"Panchayat Area" means the terrltortal area of a Panchayat establishment under thts Act;
(xix)"Population" means the'population as ascertillned at the last preceding census of whtch the relevant figures have been publtshed;
(xx) "Prestdent" and "Vice-Prestdent" means the President and Vtce-President respectively of a l[Gram Ntrman Samiti or Gram Vtkas Samitl or Janpad Panchayatl or Zila Panchayat, as the case may be; . (xxi)"Prescribed Authority" tn any provision ofthis Actmeans such officer or authority as the State Government may, by notification. direct to discharge the functions of a prescribed authority under that
provision; ',.
village. or a forest village comprised within the area of the Gram Pan'chayat.
[3]The definition clearly means that Gram Sabha shall be the lowest
unit comprising of one or more 'gaons'. There may be'one or more 'gaons' in
a Gram which shall be specifiedby the Governor by public notification. There will be oneGram Sabha for eachGram, specifiedby the Governor. (PAllS
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8.2 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHl., 1993 (PA) 19
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\ . convenemeeting. Held that the Collector.aloneought to have exercised the
. power under S. 28(2) of the Adhiniyam and not the Add!. Collector. The initiative taken by the Add!.Colle~toris, therefore liable to be condemned as the one without authority of law and in violation of the mandatory provisionofS. 28(2) ofthe Adhiniyam.Ayodhya v. State ofC. G.and Shankar Prasad v. State ofC,G., 2006(2) CGLJ 247
(xxii}"Public Market" or "Public Mela"means a market or mela, as the case may be, notified under the proviso to Section 58;
(xxiii) "Public Place" means any place, building 'or structure not being private property, which Is 'Open to use of the public, whether such place, building or structure is vested in a Panchayat or not; (xxiv)"Public Street" means any street, footway, road, square, alley or passage, used by the public whether permanently or temporarily; ll(xxiv-a) "Resolution" means subject to the provisions of this Act, the resolution passed in the meeting of-the Panchayats and has been mentioned in proceeding register;
(xxiv-b) "Secretary" means Secretary or i\cssistant Secretary of the Gram Panchayat, Gram Sabha or any Committee of Gram Panchayal or Gram Sabha, as the case may be;
(xxiv-c) "Social audit" means opinion of the members of Gram Sabha relating to expenditure In respeCi of qualitY of comrU11nii:ywork and beneficiary oriented work executed iil the Gram Sabha area;'] (xxv)"Sarpanch" and "Up-Sarpanch" means the Sarpanch and up- Sarpanch respectively of a Gram Panchayat, as the case may be; 2[(xxv_a)"Scheduled Areas" means the Scheduled Areas refelTed to In clause (1) of Article 244 of the Constitution ofIndia;] 3[(xxv_b)'Special Economic Zone' shall have the. same meaning as assigned to It in Clause (za)of Section 2 of the Special Economic Zones Act, 2005 (28 of 2005)]; , .'
(xxvi) "Standing Committee" means a Standing Committee of a Panchayat, a'Janpad Panchayat or a Zila Panchayat constituted under the provisions of this Act, as the 'case may be; (xxviI)"State Election Commission" means State Election Commis- sion constituted by the Government under Article 243 k (1) of the Constitution;
(xxviii):Tax" Includes a tax, cess, rateofree leviable under this Act;
(xxix) "Village"means a village specified by the Governor by public .llotif!~;ipo.I:rto .be a Yillagefor the.purposes aUhls,Act,and includes.a group of villages so specified;
ExplanatioTL-Term village includes revenue village and forest vil- lage,
1 Clauses (xxiv-a to c) in~ertedvide M.P. Act No. 2'6 of2012 [23-"5-2012).
2 Ins. by MP 430f 1997 [5.12-1997).
3 Ins. by MP 18 of 2007 (25-5-2007).
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(xxx) "Zila Panchayat" means a Zila Panchayat established uhder sub"section (3) of Section 10.
CHAPTER 1I.GRAM SABRA
3. Notification of village.-The Governor shall by public notifica- tion specify a village or group of villages to be a village for the purpose of this Act.
COMMENTARY
1. Exclusion of certain village from a certain erstwhile Gram Panchayat.-See comments under S.125 and M.P.Panchayat (Alteration of limits, Disestablishment or Change of Headquarters) Rules (1994), R.3. La/singh v. State of M.P., 2005 (1) MPLJ 348=2005 (2) MPHT 346=AIR
2005 NOC 250 (MP).
2. Constitution of Gram Panchayat with head quarter at a par- ticular place by State Government cannot be interfered with.- A preliminary notification creating a unit of local Government described as
"village" grouping certain villages, when published, the decision of the Authorities in constituting a Gram Panchayat by a particular name was perfectly in accordance with law. The High Court will not sit over judgment on such decision as a court of appeal and would not substitute its own views. The notifications having been issued in exercise of powers which were legislative in character, were in accordanc.e with law and the decision calle.d for no interference. AlR 1990 SC 261 Fall., 1993l\1PLJ 767=1991 JW715 ReI.Rajdhar Singh v. State of M.P., 1995 MPLJ 152.
3.Village,-A 'village' has a different meaning under this Act than what we understand in the natural course. The definition given in clause (xxix) of Section 2 read with the provisions of this ~('ctionmakes it clear that a 'village' under the Act may be one or group of more than one villages as specified by the Governor.
4. List of voters of a village.-For every village specified urider~ Section 3 there shall be a list of voters which shall be prepared In accordance with the provisions of this Act and rules made thereunder.
5. Registration of voters of a village.-Every person who is qualified to be registered In the Assembly roll relatable to a village or whose name is entered therein and is ordinarily resident within the village shall be entitled to be registered in the list of voters of that village:
~Provlded that-
(a) no person shall be entitled to be registered In the list of voters ~formore than one village;
(b) no person shall be entitled to lJe.registercd in the list of voters if he is' registered in the electoral roll relating to any other local authority.
Expklll{/ I ion.-
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(1) The expression "ordinarily resident" shall have the meaning assigned to it in Section 20 of the Representation of ihe People Act, 1950 (No.43 of 1950YsubJect to the modification that reference. to "Constituency" therein will be construed as a reference to "village".
(2) A person shall be disqualified for registration in the list of voters of a village if he is disqualified for registration In the Assembly roll.
COMMENTARY
1. Registration in the voter's list.-ll] Where a person is registered in the electoral roll of any other local authority, he is not entitled to -be registered in the list of voter of a village. Uttamchand v. State Election Commissioner of M.P., 2005 (1) MPLJ 168.
[2] A bare perusal of 8ection 5 nowhere provides for its vice- versa position. It means that by virtue of the provision of 8.5, a person is not
prevented from getting his name entered in the electoral roll ofMunicipal Council, ifhis name is already registered in the electoral roll of the village.
It is not contemplated under law that a person entered in the name of voter list ofvillage, iR disqualified from contesting the election ofcouncillor in due manner. Rajaram Ahirwar v State of M.P., 2008 (3) MPLJ 185.
2. Genera!.-!l] Section 4 makes provision for preparing a list of voters for each andceveryvillage to-be-prepared in accordancewith-the-rules maG"-
under this Act. This section makes provision for persons whose name shall
be registered in the list ofvoters of a village: The following persons shall be entitled to get themselves registered in the aforesaid list:-
(i) Every person who is qualified to be registered in the list of voters prepared for the legislative assembly relating to that village;
(ii) Every person whose name is already entered in the Assembly roll relatable to that village;
Both the above mentioned kind of persons shall be entitled to be so registered, provided they are ordinarily resident of that village. It simply- means that whatever may be reasons for their inclusion in the list of Assembly poll, this additional qualification should also be there that they are ordinarily resident of that village. Not only this there are other condi- tions too laid down in the proviso attached to this section as under:-
(a) No person shall be entitled to be registered in the roll ofmore than
one village; and
_ (b) If a person is registered in any other local authority, meaning any mvnifipality or nagar p;illch.ai"t_etc., then Jieshail not be registered in tbe -'roIr'ohotets preparedfor th'at'ViIlage:p'. '.- t. • ,'- '.
[2] It is also specifically provided in the Explanation attached to the section that a person who is' disqualified to be iiilcuded in the list of voters of the Assembly relating to that village, he shall also not be registered in the list of voters prepared for that village under this Act.
47
I[ 5-A. Constitution "and incorporation of Gram Sabha.-There shall be a Gram Sabha for every village. The Gram Sabha shall be a body corrorate by the name speCified therefor having perpetual succession and a common seal and shall by the said name sue and be sued and shall subject to the provisions" of this Act and the rules made there- under have power to acquire, hold and dispose of any property mov- able or immovable, to enter into contract and to do all other things necessary for the purpose of this Act.
PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993
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COMMENTARY
1. Legislative changes.-It is a new section inserted by M.P.Act 3 of 2001, w.e.f. 26-1-2001.
2. Gram Sabha.-[l] This section declares that there shall be a Gram Sabha for each and every village and as per definition of'village' given in clause (xxix) of section 2, 'village' shall mean that which is so specified by the Governor.
[2]The section further states that each and every Gram Sabha shall be a body Corporate by the name specified therefor and shall have perpetual succession and all other characters of a body Corporate shall apply to it. Under the provisions of this Act and the rules made thereunder, it shall be competent to acquire, hold and dispose of any property, movable or immov- able. It shall also be competent to enter into any contract and to do all things necessary for the purposes of discharging iJs functions and obligations mention under the Act and the Rules.
3. Constitution of Gram Sabha.- The provisions ofM.P.Panchayat Raj (Simshodhan) Adhiniyam (No.3 of2001) inserting section 5-A, providing for constitution of Gram Sabha is constitutionally valid. Jankidas Bairagi u. State of M.P., 2001 (2) MPLJ 477=2001 (2) MPHT 229(DB). 2[6. Meeting of Gram Sabha.-3((I) The meetings of Gram Sabha shall be held at least In January, April. July and October, and besides this Gram Sabha may convene additional meeting. If required, and the Collector of the district shall nominate a Government Officer or employee for suitable arrangement of such meetings who shall ensure the circulation of the agenda and notice of the date, time and place of meeting to be served within time and shall also ensure the due conduction of the proceedings of the meeting.]
I Ins. byM,P, Act 3 of 2001, w.e.f.26-1-2001.
2 Subs. by M.P.Act 3 of2001, w.e.f.26-1-2001. :.
3 Sub-sec. (l) s~bs. by M.P.Act 16 of 2004. w.e.f. 1-1,-2005.
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8.6 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., "993
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r I[(2)The quorum of every meeting of Gram Sabha shall not be less than one-tenth of the total number of members of the Gram Sabha or flve hundred members of the Gram Sabha, whIchever is less.] ,
(3) The meeting of the Gram Sabha shall be presided over by Sarpanch or in the absence of Sarpanch by Up-Sarpanch. In the event of both Sarpanch and Up-Sarpanch being absent, the meeting of the Gram Sabha shall be presided over by a Panch to be elected for the purpose by the members present in the meeting.
(4) If any dispute arises as to whether a person is entitled to attend a meeting of the Gram Sabha, the same shall be decided by the person presiding regard being had to the entry in the list of voters of the Gram Sabha area and his decision shall be flnal.
• (5) Any dispute arising between Gram Sabha or any matter con- ceming more than one Gram Sabha comprised within the area of Gram Panchayat and all mqUers contalned in sub-section (2) of Section 7 shall be brought before a joint meeting of all Gram Sabhas of that Gram Panchayat.
(6) The decision taken at the joint meeting under sub-section (5) shall be deemed to be the decision taken by each of the Gram Sabha.]
COMMENTARY
1.Legislative changes.-lt is a new section which has replaced the old section'6 vide M.P.Act 3 of2001, w.e-.f.26-1-2001.
2. Constitutional validity of the amm;ldment- Sub.section (2). Quorum for holding a meeting of Gram Panchayat.Second Part of S.6(2) introduced by M.P.Panchayat Raj (Sanshodhan) Ahiniyam, 3 of2001.The provision is a reservation into reservation, it frustrates the purpose of the Act and is ultrayires the Constitution.-[l] Pronouncing a provision to be ultra vires.- Wehave referred to the aforesaid pronouncements to apprise ourselves that a provision is not declared ultra vires on abstract grounds or in vacuum. The real test has to be applied. To elaborate; if reading of the provision appears to be ex facie and manifestly, unreasonable for arbitrary indubitably, the same can be declared as ultra vires. If the provision has an object to achieve but it actually does not so achieve, there can be no iota of doubt, it defeats the scheme of the Act and thereby can be regarded as ultra vires. Than Singh
v. State ofM.P., AIR 2005 MP 170=2005 (2) MPW 353=2005 (2) MPHT 127=2005 (2) JLJ 178 (F.R). Does not apply to the new sub.sec. (2). [2]Classification of reservation.-Reservation for women is permis- sible and classification is permissible and classification is primarily depend- ent on the Legislature but the classificatiop has to rest and founded on
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--1 --Sub~sec:(2) as "amended -byM.P: Act 230f200f:a:nd subs. by 'M.P. Act 20~of-2005, w.e.f. 30*8-2005 was as under:-
"(2)Not less than one-fIfth or one thousand. whichever Is less of the total number
. of members of the Gram Sabha shall form a quorum for a meeting of Gram Sabha. out of which not less than one third shall be wome~ members and members of Scheduled Castes and Scheduled Tribes shall be represented in proportion to their population in the Gram Sabha. Quorum shall be necessary for every meeting of the Gram Sabha.~
49
(PA)24 PANCHAYAT RAJ AVAM GRAM SWARAJ' ADHl., 1993
8.6
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reasonable criteria. It cannot be carried to such & point which would subvert and submerge the precious guarantee of equality clause. The case at hand
has a different scenario to fresco. Chapter IX of the Constitution has made
provisions for Panchayat. It has made provision for reservation of seats for
Scheduled Castes, Scheduled Trjbes and women. As far as this reservation is concerned, it is the mandate of the Constitution and that has to be followed by the State Legislature. While providing the quorum for holding of a meeting of Gram Sabha the Legislature has couched it in a different way. On a scanning of the anatomy of the provision two limbs emerge. One lays a requisite postulate as regard the number and the other a prescription of the percentage of members for a quorum. Than Singh v. State of M.P., AIR
2005 MP170=2005 (2) MPLJ 353=2005 (2)MPHT 127=2005 (2) JLJ 178
(F.B.).
[3) Protective discrimination.-There is subtle and fine distinction
between protective discrimination and a protective discrimination that destroys a larger public interest or social interest and also defeats the
fundamental requirement ofthe body polity. The proponement that the said
provision is in consonance with Articles 15(3) and 15(4), in our considered opinion, is neither correct nor sound inasmuch as the concept of reservation to that extent would not be within the ambit and sweep of protective or
affirmative discrimination. We are disposed to think so as there is reserva- tion in respect of seats and a further reservation would tantamount to reservation within reservation. We may hasten to clarify that on the first flush the provision may not-appear to be reservation because it has been
grafted and woven into the concept of quorum but on an deeper probe and
keener scrutiny it becomes patent that there is reservation in the quorum inasmuch as without the presence of the reserv.ed categories of persons the 'Gram Sabha' becomes non- functional. It is so, as no alternative has been
provided under the Act. [4J Purpose of quorum.-It is to be borne in mind, the purpose of the
quorum is to ensure that there is proper transaction of business and the decision taken epitomises the representative character. In the instant
provision the representative char"'cterofthe~<1ecision is likely to be caged. It is not out of place to state that concept of quorum is baSIcally it safeguard~
against the apprehension that a minuscule persons or members may boast
of having taken a decision on behalf of the body even through the large body ofmembers are unaware or not parties to the decision. The quintessentiality ofquorum is on the number and not on the Constitution ofthe number which in the ultimate eventuality destroys the rationality, the reasonableness and ushers in arbitrariness. It has to be appreciated that all members who are
members of the Gram Sabha are such persons wit4'out any distinction or
colour attached to them and they participate in tile meeting of the body without any kind of distinction. There can be no differentiation in individual characteristic of a member and a member of the Scheduled Caste and Scheduled Tribe for the purpose of a quorum in a meeting since quorum is
only a guarantee of persons of minimum number of persons from amongst
the effective body of which has the same homogenous character qua such
members. A provision like the present one unmistakably makes a distinction
between two similar members. It is worth noting after an election is held in
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8.6 PANCHAYAT RAI AVAM GRAM SWARAJ ADHI., 1993
(PA)25
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respect of the Panchayat and'all the elected members constitute a homogenous group and no dbt iiH:'tion is farmed or "introduced which is dependent upon the constituQncy or source of membership. They are all treated as equals but the present provision while laying down that the quorum would have one third women, and such proportionate members of the Scheduled Castes, Scheduled Tribes to eonstitute mandatorily the one-fifth of members treats equals as unequals violating the mandate of Article 14 of the Constitution. In fact, such members become more important members than other members without a rational basis and have the effect potentially to take the majority to ransom as a consequence of whieh the majority deeision paves the path ofmarginalization and in a way, extinction. The representative character of the decision becomes an anathema to its basic concept. Judged from these spectrums there can be no iota of doubt, the second limb of the provision is not rested on reasonableness and in fact, smacks of arbitrariness in its conceptual eventuality.
"Quorum" denotes the minimum number of members of anybody of persons whose presence is necessary in order to enable that body to transact its business validity so that its acts may be lawful. The fixation of quorum for the meetings of a committee does not preclude all the members of the Committee from attending the meetings. By the quorum, a minimum number of members of the committee must be present in order that its proceedings may be lawful but that does not mean that more than the minimum are denied an opportunity to participate in the deliberations and the decisions ofthe committee. Whenever, a committee is scheduled to meet, due notice of the meeting has to go to all the members ofthe committee and it is left to each individual member whether or not to attend a particular meeting. Every member has thus the choice and the opportunity to attencI every meeting of the committee. If any member considers the determined in a particular meeting as of such importance that he must make his voice heard and cast his vote, it is open to him and indeed he is entitled to attend the meeting and make his presenee felt.
Thus the basic and fundamental principle inhered in the term 'quorum' is presence of minimum number of members to transact business with the avowed purpose to make it lawful.-Panjab University, Chandigarh v. Vijay Singh Lamba etc., AIR 1976 se 1441 Foil. Than Singh v. State of M.P., AIR 2005 MP 170=2005 (2) MPLJ 353 =2005 (2) MPHT 127=2005 (2)
JLJ 178 (F.B.).
[5JEffect of the provision of second l.imb of the termquorum.-It is well settled concept that democracy is nothing but the rule of majority, though it may assume eertain shades of adjustability and suitability to match. certain circumstances; If the second linlb of definition of quorum is aUowe(n6~s1;\iia 'tI1erepresentail;"e' cli.a~a:cier'Ofth-e"deci;ionof the Gram Sabha is likely to be destroyed and the majority would be in the hands of an
. absolute 'ininuscule minonty and would be controUed by it. The possibility ofmicrocosm totally ruling the macrocosm cannot be brushed aside. In fact, the said facet is inherent in providing the constituent in a quorum. Than Singh v. State of M.P., AIR 2005 MP 170=2005 (2) MPLJ 353=2005 (2) MPHT 127=2005 (2) JLJ 178 (F.B.). .
51
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[6] Why provision is ultra vires.-Both limbs of the provision are distinct and separate and after striking out what is invalid what remains is in itself a complete provision independent of the rest and can be upheld notwithstanding the rest is constitutionally invalid. We are also of the opinion, the concept of quorum is the basic scheme when one-fifth of the members of Gram Sabha are taken into consideration and the constituents do not really form a part of an inseparable singular scheme. They are different in substance and if the invalid provision is expunged the other part of the provision is workable, enforceable and have its own existence in a legitimate manner. Our view gets reinforced by the decision rendered in the case of R.M.D. Chamarbaugwalla and another v. Union of India and another, AIR 1957 se 628.
The second limb of section 6 (2).ofthe Act intending that 'out of which not less than one third shall be women members and members of Scheduled Castes and Scheduled Tribes 'shall be represented in proportion to their population in the 'Gram Sabha' is unconstitutional on the ground which we proceed to state in seriatim.
(a) There is no constitutional mandate under Articles 243, 243-A, 243-B, 243-D, 243-G and 243-H that provide constituent of quorum pertaining to the mandatory presence of specific women members and members of the Scheduled Castes and Scheduled Tribes.
(b) The argument that the constitution of quorum as has been envisaged by the State Legislature is inferentially permissible from the aforesaid -~Articles is.faliaciolis. lind".does not withstand-dose-scrutiny.-;. . - -,- - --.~ -
(c) The second limb of the provision is nof saved by the conception of affirmative a-y"proteCtive 'discrimination as conceptually inhered under- Articles 15 (3) and 15 (4) of the Constitution ofIndia.
(d) The classification that has been made in the quorum does not stand the test of equality clause as enshrined under Article 14 of the Constitution. Ce)The provision also is hit by the principle of reasonability and smacks of arbitrariness.
CDIt does not subserve the purpose ofthe Act but in a way, subverts the same and hence, it is not in cons'ouanee with the scheme ana. spirit of the"
Act.
(g) The purpose of quorum always lays emphasis of a particular numu,'r of members for transacting business but in the case at hand when the- . constituents have become the paramount and governing factors it basically runs counter to the idea of quorum, as a cons:equence of which the repre- sentative character of the decision melts into oblivion.
(h) The provision on.a deeper penetr\itioIland pregnant probing allows
• > ~~q,~t'Jlf~c},ll~~m!?~«r~f~efe~~~_d ~Jk n;?f~J:;}~~r.ity:i,~.w~~.a~d thereby ushers Ill'ine neslgIfiliat th~crocosm fia~f1fe effect potenbahty to dominate over the macrocosm which is an anathema or betenoire to the basic feature of democracy which is a part of the philosophy of the Constitu- tion, a compassionate one.
(i) the provision is not saved even if the doctrine of social balancing is applied. Than Singh v. State of M.P., AIR 2005 MP 170=2005 (2) MPLJ ! .
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353=2005 (2) MPHT 127=2005 (2) JLJ 178 (F.B.).
[7] Provision declared ultra vires.-Ex consequenti, we deClare that the second part of sub-section (2) of section 6 of the Act which postulates that 'out of which not less than one third shall be women members and members ofScheduled Castes and Scheduled Tribes shall be represented in proportion to their population in the Gram Sabha' is ultra vires the Con- stitution. Than Singh v. State orM.p., AIR 2005 MP 170=2005 (2) MPLJ 353=2005 (2) MPHT 127=2005 (2) JLJ 178 (F.B.).
[8JResult.- The result of the above declaration is that the quorum for holding a meeting of the Gram Sabha now shall be held with a quorum of one-fifth of the total number ofmembers of the Gram Sabha, but see new sub-sec. (2).
3. Meeting of Gram Sabha.-[lJ This section makes provision for holding ofmeetings of Gram Sabha.
[2JIt is made imperative that at least onemeeting ofGram Sabha shall be beld every month which shall be calledby the Secretary ofthe Gram Sabha. [3]Although meeting of a Gram Sabha is to be called by the Secretary, still date, time and place for the first meeting ofa Gram Sabha shall be fixed by the Sarpanch. It also means that there must exist a validly constituted Gram Panchayat consisting ofa Sarpanch. It must be remebered that there will be no separate Sarpanch of a Gram Sabha. The Sarpanch of a Gram Panchayat shall be deemed to be the Sarpanch ofthat Gram Sabha. [3]The Sarpanch shall fix the date, time and place for holding the first meeting of a Gram Sabha while subsequent meetings shall be held as decided by the Gram Sabha.
[4JQuoram.-Section 5 has already made provision for preparing the list of voters of a Gram Sabha. Accordingly in every meeting held, there should be a quoram and that is fixed to be one fifth. The provisiori says that there should be an attendance ofat least 1I5thmembers. *[This 1I5th should contain at least 1/3rd women, meaning thereby that one-third of this number should consist of women members. Not only this, representation of members of the Scheduled Castes and Scheduled Tribes shall be in propor- tion to their population. It may be clearly understood that representation here should mean, representation in the quoram, since every person of any caste and creed, if registered, shall be entitled to attend the meeting of a Gram Sabha.] It is also specifically stated in sub-section (2) that quoram shall be necessary for each and every meeting of a Gram Sabha. *According to the decision of the Full Benc,hof the High Court given in the case of Than Singh, the portion above given in 2 '"isnow not necessary since certain portion of sub-section (2) is declared to be ultra vires.
[5] Presiding of meeting.-Every meeting of a Gram Sabha shall be presided over by the Sa'rpllilcn and iii his-absence by the Up: Saipanch. In a case where both of them are absent then it shall be presided over by a person elected for the purpose by the members present in the meeting. [6JRight to attend meeting.-As already observed, every person who is registered in the list of voters of a Gram Sabha under section 5, shall be a member of a Gram Sabha and he shall be entitled to attend the meeting of Gram Sabha. But. in a case where any dispute arises as to whether a
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person is entitled to attend the meeting of Gram Sabha, the same shall be decided by th~ person presiding with reference to the list of voters. His decision in the matter shall be final.
[7] Sub.sections (5) and (6) are ambiguous and contradictory.- The sub-section (5)is not happily worded. It is,ambiguous and contradictory. It speaks ofmore than one Gram Sabhacomprised within the area ofGram Panchayat which is not possible. Section 5-Ain clear terms says that there shall be a Gram Sabha for each village and village here cannot mean 'gaon'. Looking to provisions of other sections too, there cannot be more than one Gram Sabha in a Panchayat area. If it is not so interpreted, different provisions for functioning and powers of Gram Sabha and the Gram Panchayat shall become impossible. Therefore, sub-sections (5) and (6) should be held to be ambiguous, contradictory and in the result, ultra vires. [8]Joint meeting of Gram Sabhas.-Since there cannot be more than one Gram Sabha in a'Panchayat area, the question ofholding joint meeting does not arise at all.
4. Scheduled Area Gram Sabha-Applicability.- Special provisions for Panchayats in the Scheduled Area are made in Chapter IV-A of the Adhiniyam. This Chapter overrides the provisions of Chapter 2 which includes S.6(2). Therefore, S.6(2) does not apply to Scheduled Area Gram Sabhas. Rajkumar v. State ofM.P., 2003 (4) MPLJ 354=2003 (3) MPHT
108 (DB).
" 5. Rules':-The State 'Gov'ernment has made the following rules, in exercise of the powers conferred by this section. These Rules shall be found under Rules given separately.
"Procedure ofMeetings Rules, 1994" I[G.A. Special Meeting of Gram Sabha.-If the Sarpanch, or more than ten per cent. of the members or fifty members of the Gram Sabha whichever is less, give requisition in writing for a special meeting of the Gram Sabha, the Secretary shall call such a meeting within seven days of the receipt of such requisition.
COMMENTARY
1. Legislative changes.-It is a new section inserted by M.P,30f2001. ' Special Meeting,-ll] The section makes provision for calling special meeting ofa.Gram Sabha. Special meeting ofthe Gram Sabha shall be called as under:-
,(I) Where the Saipanch, or
(ii) more than 'I 0 per cent of the members of Gram Sabha or fifty members of Gram Sabha, whichever is less. give in writing a requisition for calling a special meeting ofGram Sabha, to the Secretary, the Secretary shall call such a meeting ofGram Sabhawithin seven days of the receipt of such requisition,. '
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1 Ss.6-A to 6-C ins. by M.P. Act 3 of 2001. w.e.f.26-1-2001. I '
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S.6-C PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)29 , 6-B.SecretaryofGramSabha.-TheSecretaryoftheGramPanchayat shall also be the Secretary of the Gram Sabha. The Secretary shall be under the control of the Gram Sabha and perform
such duties as assigned to him by the Gram Sabha.
COMMENTARY •
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1. Legislative changes.-
2. The Secretary of the Gram Panchayat shall also act as a secretary of the Gram Sabha and the secretary shall work under the control ofthe Gram Sabha and he shall perform the duties which are assigned to him by the GramSabha.
6-C. Decision by Gram Sabha.-(l) All matters brought before any meeting of Gram Sabha shall be decided. as far as possible, unani- mously falling which by general consensus of the members present:
Provided that where there is difference of opinion on any issue such matter shall be brought before the next meeting, If a decision Is not taken unanimously or by general consensus in successive two deferred meetings then such matter shall be decided by majority of members present thereat by secret voting. in the case of equality of votes, the person presiding over the meeting shall have a second or casting vote, .cc.:.' 42)lFa:il)'displite'arises -as to wheth"ra person is entitled to vote, the same shall be decided by the person presiding regard being had to ... the entry in the list of voters of the Gram Sabha area and his decision shali be final.]
COMMENTARY
Gram Sabha decision.-[l] In order to promote better understanding,
develop love and co-operation between the residents of a village, it is
provided in this section that all matters'which are br6iightbef6rea Gram Sabha shall be decided unanimously, failing which by general consensus.
The question arises as to what this term 'general consensus' mean. It simply
.meansa minor or negligible opposition which doesnotlnclude substantial opposition,Where it appears that there is a difference ofopinion the matter should be left over undecided, to be decided in the next meeting.
[2] It is also provided in the proviso to'sub-section (1) that in case of a
matter which cannot be decideq. unanimously or by general consensus even
in the two adjourned meetings then, such a r4atter shall be put to vote and l1ecided.\iY.JIIajQrity,,v.qting.secretly:_Ifthe,yotes are equal, .the presiding person shall have a secondcasting vote,meaning thereby that the president will vote firstly ,as any other nWm.berand where the result is found to be equal number of votes then, the president shall have the second vote. It further means that in such a situation, the matter shall be decided as per the casting vote of the president.
[3]Although the ultimate procedure provided is ofsecret voting, but that stage is tried to be avoided as far as possible.Every scopefor creating better
55
I Subs. by MP 43 of 1997 (5-12-19971.
2 Ins. by M.P,Act 5 of 1999 [5-4.1999].
8.7PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 ,
I [7. Powers and functions and Annual Meeting of Gram Sabha. -(1) Subject to the rules, which ihe State Govemment may make in this hehalf. and subject to the general or special orders. as may be issued by the State Government from time to time. the Gram Sabha shall have the followingpowers and functions. namely:-
(a) to lay down the principles for identification of schemes and their priority for economic development of the village;
(b) to approve all plans including Annual Plans. programmes and projects for social and economic development before such plans, programmes and projects are taken up for implementation by the Gram Panchayat;
(c) to consider the Annual Budget of the Gram Panchayat, and
make recommendations thereon:
(d) to consider the report of apdit and accounts of the Gram Panchayat; - .-
(el to ascertain and certify the proper utilization by the Gram Panchayat of the funds for plans. programmes and projects referred to in clause (b);
. (I)to identify and select persons as beneficiaries under the poverty alleviation and other programmes;
(g) to ensure proper utilization and disbursement of funds are
assets to the beneficiaries;
(h) to mobilize people for community welfare programmes;
(i) to ensure active participation of people in Implementation. maintenance and equitable distribution of benefits of development schemes In the village;
U)to promote general awareness amongst the people; and 2 1U-i) to exercise control over Instltutlqns and functionaries In social sectors Iransfen'ed 10 or appointed by Oram Panchayat through that Panchayat;
U-ii) to manage natural resources Includtng land. water, forests within the area of the village in accordance with provisions of the Constitution and other relevant laws for the time being In force; U-Iii)to advise the Gram Panchayat in the regulation and use of minor water bodies;
_U-Iv).to control local plans, resources and expenditure for such plans;)
understanding and remove any difference of opinion has been created. The
Legislature has advised village people to keep patience and try to under- stand the point ofviewofthe other side.Theprovisionaims at development ofthe villagewithout hurting the self respect ofanother.
(PA)30
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PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993
(PAl3I
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IIlk) sanitation, conservancy and prevention and .abatement of
..nuisance;
(I)construction repair and maintenance of public wells, ponds and tanks and supply of water for domestic use;
(m) construction and maintenance of sources of water for bathing and washing and supply ofwater for domestic animal;
(n) construction and maintenance of village roads. culverts,
bridges, bunds and other works and building of public utility;
(0) construction, maintenance and clearing of public streets, latrines, drains, tanks, wells and other public places;
(p) filling in of disused wells, unsanitary ponds, Pools dilche~ and pits and conversion of step wells into sanitary wells;
(q) lighting of village streets and other public places;
(r) removing of obstructions and projections in public streets and places and sites not being private property or which are open to use of public, whether such sites are vested in the Panchayat or belongs to the State Government;
(s) regulating and control over entertainment shows, shops, eating houses and vendors of drinks, sweet meats, fruits, milk and of other similar articles;
(t) regulating the construction of house, latrines, urinals, drains and watercl"se(s; .. ..c : ._
(u) management of publicland a.~d mana.g;;ment, extension and development of village site;.
(v) (i) regulating places for disposai of dead bodies, carcasses and
other offensive matters;
(ii)disposal of unclaimed corpses and carcasses; (w)earmarking places for dumping refuse; (x)regulation of sale and preservation of meat; (y)maintenance of Gram Sabha property;
(z) establishment and management of cattle ponds and main-
tenance of records relatillg to cattle; """"\
(aa) maintenance of ancient and historical monuments other than those declared by or under law made. by.Parliament to be of national importance, grazing lands and other lands ,< .,1 ing in or under the control of the Gram Sabha;
(bb) maintenance of records of births, deaths and marriages; (cc) rendering assistance in the census operation and in the SUrveYsconducted by.tbeSkte Government or Central Government or
"atly'otherlocal auttiorltylaWfullycorrstituied;--'-";~_. -. _.. _. (dd) rendering assistance in prevention of contagious diseases; (ee)renilCriIlg assistance In Inoculation and vaccination and enfor- cement of other preventive measures for safely of human being and cattle prescribed by Government Department concerned;
Cis. (kIlo hv) sllhs. for cl.(k) by M.P. Act:3 of 2001, w.e,f.26-1-2001.
57
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(ff)rendering assistance to the disabled and destitutes; (gglpromotion of youth welfare. familywelfare and sports; (hh) establishment of Raksha Samiti for:-
(a) safety of life and property;
(b) prevention of fire and extinguishing fire and safety of property during outbreak of such fires;
(ii)plantation and preservation ofVillage forest; Gj)removal of social evils like dowry;
(kk) granting loans for the purposes of-
(il providing medical assistance to indigent persons in serious
and emergency cases;
(ii) disposal of dead body of an indigent person or any member of his family; or
(iii) any other purpose for the benefit of an indigent person as may be notified by the State Government from time to time subject to such terms and conditions as may be prescribed; (II)(i) carrying out the directions or orders given or issued by the State Government. the Collector or any other Officer authorised by the State Government in this behalf with respect to the measures for amelioration of the condition of the Scheduled Castes and Scheduled Tribes and other backward classes and in particular in regard to the removal of untouchability;
(ii) perform such functions as may be entrusted to it by Zilla Panchayat or Janpad Panchayat by general or special order;
(iii) to exercise and perform such powers and functions as the State Government may confer on or entrust to under this Act or any other law for the time being in force in the State;
(iv) with prior approval of J anpad Panchayat. may also perform other functions as it may desire to perform: . Provided that where any such function is entrusted to the Gram Sabha. it shall act as an agent of the State Government, Zilla Panchayat, as the case may be, and necessary funds and other assistance for the purpose shall be provided to It by the State Govern- ment' Zilla Panchayat or Janpad Panchayat, as the case may be; (mm) plan and manage basic amenities;
(nn) select beneficiaries under various programmes;
(00) implement, execute and supervise development schemes and construction work within the Cram Sabha area; (pp) control and monitor beneficiary oriented schemes and programmes;
(IT) organise voluntary Ia.bour and contribution for community work and promote the concept of community ownership; (ss) to plan, own and manage minor water bodies upto a specified water area situated within its territorial jurisdiction; (tt) to lease out any minor water body upto a specified area for the purpose of fishing and other commercial purposes; -
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(PA)32
• PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI .• 1993 8.7
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(uu) to regulate the use of water of rivers, streams, minor water bodies for Irrigation purposes; , '
(vv) to exercise control over institutions and functionaries in all social sectors transferred to or appointed by the Gram Sabha.j
(2) The annual meeting of the Gram Sabha shall be held not less than three months prior to the commencement of the next financial year, and the Gram Panchayat shall place before such meeting;-
(a) the annual statement of accounts;
(b) the report of administration of the preceding financial year;
(c) the development and other programme of the works proposed for the next financial year;
(d) the last audit note and replies, if any, thereto; and 1[(e)the Amllial Budget and Annual Plan for the next financial year of the Gram Panchayat],
2[(2_A)The Gram Panchayat shall place such matters before the Gram Sabha which'the cranpad Panchayat. the Zila Panchayat, the Collector or any Officer authorised in this behalf may require to be placed before such meeting,j
(3) The Gram Panchayat shall carry out the recommendations. if any. made by the Gram Sabhain regard to the matters before it under this section).
;
Powers and functions,-Sub-section (1) 'gives a list of powers and functions of a Gram Sabha. But all these powers and functions are subject to the rules made by the State Government onthese subjects and also subject
to the general or special orders issued by the State Government from time
to time. Formerly there were only 15 clauses defining such powers and functions. With the passing ofAct 3 of 2001, 37 more clauses to this effect
are added. Without caring for the education of the persons living there, so
many functions and.powers are assigned to them by sub. section (1). One, fails to understand how far this will be successful.
Annual Meeting,-[l] It is provided in sub-section (2) that the Gram Sabha shall hold its annual meeting not less than 3 m,*ths before the
commencement of the next financial year. A financial year"commences--on 1st of April every year. According to this provision, annual generulmeeting
of a Gram Sabha should be held before the 1st of January, i,e, by 31st of
Decembc' 'ryyear. '
[21 it is also provided that the Gram Panchayat shall place belore such ~'.;Y~m.!'.~~j!,Z~f"!Qe;(}!!!:.J!i:to,all!)!"t!l~.P';;l1er~:..me(lt.iQljep)ns"_b",,eg,tions (2)and (2-A). '
13] As far as annua!. statement of accounts is ,concerned, since the meeting will be held before 3 months of the expiry of the current financial year, it will relate to the previous year and similar would be the case with I Subs, by M,P,Act 5 of 1999 [5-4-1999),
2 Ins, by M,P,Act 5 of 1999[5-4-19991,
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COMMENtARY
(PA)33
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3[7_B. Composition and functions of standing committees.-ll) , The Gram Nlrman Samiti shall Aci as an agency bf Gram Panchayat "
and shall execute all construclion works and other works entrusted by .the Gram Panchayat or Gram Sabha, uplo five~ .
1 Ins. by M.P. Act 3 of 2001. w.e,f.26-1-2001. ' ~'- ."., <-} '2 Sub-sec. OJ sUDS. by M,P.Acll6 of 2004. w.e.[ 1-1-2005 ,r,.../.,t..." / l'
3 S.7-6 subs. by,M.P. Act 16 of 2004, w.e.f. 1-1-2005 0 L--, the report of administration.
Recommen<:lations of Gram Sabha.-Looking to the provisions of sub- section (3), it appears quite clear th~t Gram Sabha is a general body and the Gram Panchayat is an executive body. The executive has to perform its I duties as per directions given by the general body. ) AppeaL-Provision is made under section 7-H for preferring an appeal against the decision ofGram Sabha. This appeal shall be made to a Committee which would consist of(i) President ofJanpad Panchayat, a member of Janpad Panchayat from the area and the Sub-Divisional Officer (Revenue). How this committee shall be constituted and how this appeal shall be preferred, shall be provided in the rules to be made by the State Government. 1[7_A. Standing Committee and Adhoc Committee of Gram
Sabha. _2[( I) The Gram Panchayat shall, for discharging its functions and duties, constitute the followingstanding committees ofQram Sabha namely:-
(i) Gram Nirman Samiti, and (il) Gram Vikas SamitL] .
(2) In addition to the Standing Committees mentioned in sub- section
(I) the Gram Sabha may constitute one or more such Adhoc Committees as it may deem necessary for the implementation of any time-bound work. The Committee shall comprtse of members who are stake-holders of work assigned to the committee. The committee shall cease to exist after submit- ting the completion report and evaluation of the work by the Gram Sabha.
(3) The Committees which are already functioning within the area of jurisdiction of the Gram Sabha shall continue to function with the approval of the Gram Sabha.
(4)The number of members, reservation of seats, term of office, procedure for resignation and removal, conduct orbusines~ eligibility for becoming a member. meeting, mode of filling of vachncies and procedure of standing Committees and adhoc committees shall be such as may be prescribed. .
Rules:- The State Government has made the following rules in exercise of the powers conferred by this section. .
1. Cram Sabha Swasth Cram Tadarth Samiti (Cathan, Karbar Sanchalan Tatha Baithak) Niyam, 2010.
2. Gram Sabha (ConstitutiDnof Standing Committees,Procedure for Conduct of Bussiness and Allied Matters) Rules. 2012.
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i I S.7-APANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)34
60
, • • .. 1[(2) Sarpanch ofGram Panchayat shall be the ex- officioPresident of the Gram Nir'Van Samiti and Gram Vikas SamitL)
(3) 2 IXXX]
(4)The composition and functions of Gram Vikas Samiti shall be such as may be prescribed.
(5)The members of the Gram Nirman Samiti shall be included in the Gram Vikas Samiti in such manner as may be prescribed.] 3[(6)All disputes relating to constitution and election of Standing Committees shall be dealt with the provisions of Section 122 and the rules made thereunder].
7-C.4[XXX]
7-D. Powers, functions and duties of Committees,-The powers, functions and duties of the committee shall be such as may be entrusted to it by the Gram Sabha from time to time, Every committee shall be responsible and accountable to the Grain Sabha and shall work under its control and supervision. ".
7-E. Removll;1of member.-The Gram Sabha shall have power to II C, remove any member of the Committee at any time for the reasons to V be recorded in writing.
5[ 7-F. Powers and duties .ofGrapt.N1rmanSamitiandGramVikas SamitL~ThedrainNjrman Samiti and Gram Vikas Samiti shall jointly prepare a plan for overall development ofvlllage and submit it for the approval of the Gram Sabha.]
617- G. Secretary of standing Commlttees.-The Secretary of Gram Panchayat shall also be the ex-officioSecretary of the Gram Nirman Samiti and Gram Vikas SamitLj
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S.7-G PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 CPA)35
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1 Sub-sec. (2) subs. by M.P. Act 16 of 2004, then __o:g<,!:it:l_by.M.~..AcL20 vL2005, w.e.f. 30-8-2005.--- ."
2 Sub-sec. (3) subs. by M,P. Act 16 of 2004, then omitted by M.P. Act 20 Of 2005, w.eJ. 30-8-2005. The omitted sub-section was as under :'- ~(3)The term of office of the-president shall be two and half years and after the expiration of the term, -election shall be again conducted by the Gram Sabha and the previous president. ifhe is not disqualified under the provisions of UteAct, shall be qualified fOFre~electlon."
3 Ins. by M.P. Act 18 of 2007 (25-5-20071. '.
4 S.7-C omitted by M.P. Act 16 of 2004 , w.e.£. l-i'-2005 . .5 Subs. by M.P. Act 16 of 2004. w.e.f. 1-1-2005. .' 6 Subs. by M.P. Act 16 of 2004. then again subs.. h\' I\1.P. Acl 20 of 2005, w.e.£. .•.::;~O~?r2Q05JQr_the.following,:_ .~_ ,::.••.. ". ~~,,-. _ ~ ;,.. ._'. -' ..... ~... ,.. _. > "7-G. Secretary of standing commlttee.-(l) The Secretary of Gram Pan{"!layat shall be the Secretary of Gram Nirman Samiti. .(2) The Gram Vikas Samiti'shall eled from amongst the members of the Gram Sabha. a Secretarv by two-~~.\i;:dmajority of members of the Gram Sabha: Provided that a person shall not hold charge of a Secretaiy. if such pel'son happens to be a relative of any member oLthe"Committee. Explanation:-For the purpose of this sub-section. the expression "relative" shall mean father, mother. brother. sIster, husband. wife. soo, daughter, father-in- law, mo~her-in-Iaw. brother-~o-Iaw, sister-in-law. son-io-Iaw and daughter-in-law."
61
(PA)36 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI.,1993S.7-GA I;
1 [7-GA. Preparing o( long term developmen,t plan of Gram Sabha.-(l) The Gram Sabha shall evaluate next ten years approximate fund to be received, and make a ten year's long term plan for vl1lage development. with the help of experts and approve the same.
(2) The plan under sub-section (1) shall be prepared keeping in view the' land use plan and requirement of basic amenities of Gram Sabha, on priority basis of long term plan through a yearly plan based on the financial resources to be received per year to the Gram Kosh of a Gram Sabha.
7-GB. Disciplinary action against president and members of the Gram Nirman Samiti and Gram Vikas.-The president and every member of the Gram Nirman Samiti and Gram Vikas Samiti shall be deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code, 1860 (45 of 1860) for taking any disciplinary action )1 against them.] ,
7-H. Appeal in a C()mmittee against the decision of Gram Sabha. -An appeal against the decision of a Gram Sabha shall lie to a committee consisting olthe President ofJanpad Panchayat, a member of Janpad Panchayat of that area and the Sub-Divisional Officer (Revenue) in s:uch manner as may be prescribed.
COMMENTARY
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.'/ ,l S.D.O. alone has no jurisdiction to hear an appeal.-Section 7-H with Rule 3 of M.P. Gram Sabha (Appeal)Rules, 2001 provides specific forum of appeal by which S.D.O. alone had no jurisdiction to decide an objection/appealpreferred by respondent No.4.Held, Rule 3 empowers an AppealCommittee to dedde the appeal and the S.D.O.(Revenue)is merely one of the constituents ofthe Appeal Committee.This being the position, the S.D.O.alone couldnot have usurped the powersofthe entire Committee. Prathmik Om Sai Gramin Mahila Bahuddeshiya Sahkari Samiti Maryadit,
v. Sub-Divisional Officer, Baihar, AIR 2009 (NOe) 533 MP = 2008 (3) MPLJ 617 = 2008(2)MPWN99.
7-1. Budget.-Every Gram Sabha shall prepare annually in such form and in such manner and by such date as may be prescribed, budget estimates of its receipt and expenditure fat the next financial year.
7-J. Gram Kosh. -Every Gram Sabha shall,establish a fund to be called the Gram Kosh consisting offollowlng four parts:-. . . .
(t) Anna Kosh.
(ii) Shram Kosh (iit) Vastu Kosh
(iv) Nagad Kosh and there shall be credited thereto -
1 Ss. 7-GA and 7-GB ins. by M.P. Act 16 of 2004. w.e.f. 1-1-2005
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I Subs. by M.P.26 of 1994 130.5.94). 1141. Bar to hold more than one office.-(l) A person who is elected to more than one office of Panchayats, may by notice in writing signed .by him and delivered to the prescribed authority within 10 days from the date on which he is elected, or the later dates, .jf he Is 'eJected on different dates, intimate in which of the Panchayats he wished to serve as an office bearer and thereupon his seat In other Panchayats In which he does not wish to serve shall become vacant.
(2) In default of such Intimation within the aforesaid period he shall be deemed to have opted for only one of the offices In the follOwing order of preference:-
(a) a member of Zila Panchayat.
(b) a memb<;r of Janpad Panchayat.
(c) a Sarpanch of Gram Panchayat. Jd) .a PanGh of Gram Panchayat:
ProVided that if such a person has attended a meeting of a Panchayat before delivering the notice he shall be deemed to have opted for the office in the said Panchayat.
Rule 3(a) of the M.P./C.G. Panchayats (ApI'''''] "lid 1(evision) Rules, 1995, the Collector has full jurisdiction to entertain an appeal against the order passed by the S.D.b. and the Collector has exercised that jurisdiction, but has registered the case under the head of revision and by that action only it can not be said that the order passed by the Collector would be thrown away holding it to be without jurisdiction because no jurisdictional error has been committed except the nomenclature which has been quoted as revision in place of appeal. ManJeet Ram Kewat v. State of C.G., 2006(2) CGW 396 =
2006(4) MPHT (CG) 76.
12. Jurisdiction of Additional Collector.- Where the Collector was the officer who could hear an appeal or revision, on being authorised by the Collector, the Additional Collector could exercise the powers of Collector by virtue ofS.17 of the M.P.Land Revenue Code, 1959. 1999 (1)MPW 455 Foil. Smt. Johra Dayal v. State of M.P., 2001 (1) MPHT 154.
13. Removal of President of Janpad Panchayat.-Materials col- lected against petitioner not supplied to him and sufficient opportunity to produce his evidence to rebut allegations made against him, not granted. Order ofremoved passed by prescribed authority and affirmed by Appellate Authority are vulnerable being violative of principles of natural justice. Orders quashed. Raja Rajsingh v. State of M.P., 2001 (4) MPW 364.
14. Relative.-The meaning of the term 'relative' in both sections 40(1) and 69(1) in the absence of specific definition, refers refers only to father, mother,.broth~t, si~ter;-husband;wife-, 1-3bn,-ditughter, inother-iii~la-,,;,fatlier- .
in-law, sister-in-law, son- in-law and daughter-in-law but does not include uncle-in-law and co-sister of mother-in-law. Jamna Bai Mehra v. State of M.P., 2004 (4) MPW 274=2004 (4) MPHT 471=2005 (1) MP\V)'; 46 (DB).
8.41
•.. '.-. PANCHAYAT RAJ AVAM GRAM SWARAJ ADHl., 1993(PA)92
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8.40 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)91
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; It may also be borne in mind that a removal of a Sarpanch who is directly elected is a serious matter and a person who is removed is further dis- qualified for a period of six years to be elected under the Act. It is not sufficient to give a mere lip-service to the requirement oflaw. It is true that it is not specifically provided in Section 40 that principles of natural justice shQuld be followed while holding an enquiry but itis implicit in this provision that the office bearer who is sought to be removed will be given a fair hearing. Kailashkumar v. State of M.P., 1999 (2) MPLJ 722=2000 (l) MPHT 143=1999 (2) JLJ 280.
8. Opportunity to show cause.- The opportunity to show cause should be real opportunity. The person proceeded against must not only be told the allegations of misconduct, but he must also be informed of the materials which is sought to be used against him in support of charges so thathemay offer his explanation in respect of that material. A person who holds office as a member or as President has a right to continue in the office until the expiry of the term. T)le order ofremoval which is passed under the section affects this valuable right and the finding of misconduct on which such an order is based casts a stigma in the public life of the person. Having regard
to these consequences, the power of removal is quasi-judicial in nature. The
Supreme Court in AIR 1972 SC 1571 observed that the order contemplated by the provision removing a member was quasi-judicial in nature and that it was not only desirable but also essential that the authority passing the - order should give reasons. It was' flirt her pointed out-thata1lthe Inateriai-"- :.__C.' . should be disclosed to the person concerned so that he may give an effective
answer not only to- the averments contained in the show cause notice but
also to the materials on the basis ofwhich the show cause notice was issued. Bansmani v. State ofM.P., 1980 JLJ 60. Followed in Raja Raj Singh v. State of M.P., 2000 (1) MPHT 490=2000 (2) JLJ 242.
9. Meaning of "as far as possible".-In proviso of S.40(1) the phrase used like 'as far as possible' by the legislature without giving consequence on its failure has got a great significance. That means it does not mandate that the proceedings must be completed within a period of 90 days failing which it should be dropped. Manjeet Ram Kewat v. State of C.G., 2006(2) CGLJ 396 = 2006(4) MPHT (CG) 76.
10. Suspension of Sarpanch.-Show cause notice should be accom- panied with charge sheet detailing all allegations against him. All materials which substantiate allegations in the notice should be supplied. An oppor- tunity to furnish reply should be real one and not a farce. Sarita Mabre v. State of M.P., 1998 (1) JLJ 420.
11. Jurisdiction.-Sub-Divisional Officer dropped the proceeding hold- ing that more than 90
64
(PA)90 PANCHAYAT RAJ AVAM GRAM SWARAJADHI., 1993 8.40
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to fIx the date; time and place for the meetings of the Gram Sabha andlapses in this regard are not lapses on the part of Secretary. ~n ca"emeetings are not convened as provided, section 44(7) will apply and the Sarpanch can be removed for the said misconduct in exercise of the powers under this section; Bharatlal Yadav v. State o{M.P., 1999 (2) MPLJ 510. .
[2] Provisions of S.40 shows that an office bearer of the Panchayat can be removed on two conditions, i.e. either he is found guilty ofmisconductin discharging of his duties or his continuance in office is undesirable in the interest of the public. But where no such conditions was established and it was not a case of gross negligence therefore the Addl. Commr. rightly set aside the order of removal in revision. Kishore v. State o{M.P., 2008(3) MPHT 29. = 2008(2) MPWN 98 [DB].
7. Principle of natural jus tice to be followed.-[l] In the instant case, the petitioner was Sarpanch of a Gram Panchayat. A show cause notice was issued to him in whi"h 15 charges were levelled against him. He submitted his reply to the show cause notice giving his explanation on each charge. He also requested for time to produce some more documents and adduce oral evidence. No witness was examined. by the S.D.a. in support of the charges
nor the petitioner was permitted to examine any witness. The .impugned
order of removal showed that reply to the show cause notice was considered in lightofthe report of the preliminary enquiry submitted by the B.D.a.No copy of this report or any other documimt \vas supplied to. the petitionee There was denial of fair hearing resulting in serious prejudice to the petitioner. The action of removal and disqualifIcation has tob" struck dowri .. as there had been failure of justice. The order of removal was not sus- tainable. It may, however, be noted that removal and disqualifIcation of an office bearer of a Panchayat under this section on the ground of misconduct is not less injurious and stigmatic as the removal of a civil servant under Art.3ll of the Constitution ofIndia or a workman under the Industrial law. Art. 311 also envisages an 'inquiry' in which the delinquent employee is informed ofthe charges against him and given a reasonable opportunity of being heard in respect ofthose charges. The celebrated rule of audi partem has been incorporated therein. What principles of natural justice should be applied depends upon the facts and circumstances of each case. AIR 1957
SC 882, AIR 1958 SC 300, (1987) AC 625, (1962) AC 322, 1996 SC 1669, AIR
1991 SC 101 ReI. Kailashkumar v. State o{M.P., 1999 (2) MPLJ 722=2000
(1) MPHT 143=1999 (2) JLJ 280.
[2] The words in sub-section (1), "after such inquiry as it may deem fIt to make" would mean an inquiry which is held in the presence of the office-bearer and not behind his back. He should be allowed to inspect the documents which are to be relied upon against him and he should have the right to adduce his own evidence. These are the important facets of an inquiry to be held in conformity with the principles of natural justice. It is not the subjective choice of the prescribed authority to get an inquiry held of any kind. It does not envisage a secret inquiry or a preliminary inquiry alone. That is made only for collection of evidence and at that stage there is no participation of the person against whom the action is sought to be taken. The words "as it may deem fIt" have to be construed objectively and would mean an inquiry depending upon the facts and circumstances of each case.
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8.40 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)89
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granted till disposal of appeal. Amritlal Jaiswal v. State of M.P., 2008(111) .
MPWN108.
[8]Removal of office bearer of Panchayat.-(a) If at all any action is to be taken in view of this section for the purpose of removal of officebearer of Panchayat, the prescribed authority will have to hold firstly an inquiry for the purpose of finding out whether the delinquent happens to be guilty of things described by the provisions ofsub-clauses (a) and (b) or the proviso of sub-section (1) of section 40. Further, the prescribed authority will have to point out that the conduct ofthe delinquent was falling under the category of'misconduct' as indicated by the explanation provided to sub-section (1). The officer working as prescribed authority has to keep in mind that proposed action is likely to dislodge a person who has been duly elected by members of the public and that too for the purpose of holding the office as indicated by the Act for performance of the duties indicated by the post or various posts of such panchayats. There should be compliance of the neces- sary provisions of the Act when a person is to be punished legally. Where
the person concerned is not proved to have committed any 'misconduct' he
cannot be removed from the officehe is holding. Kamal Kishore v. Janpad Panchayat, Nalkheda, 2000 (1) MPLJ 309=1999 (2) MPLJ 470=2000 (1) MPHT=212=19!l9 (2) JLJ 370.
(b) Removal of office bearer- Giving of opportunity to show cause is material and not the form. -The underlying principle under sub- section
(l) is that an officer hearer,.,before he is removed from officemust-knciw'thEi'" .' .• misconduct committed by him and is given an opportunity to show cause before his removal. It is providing an opportunity to show cause which is relevant and not its form. No particular form or mode having been prescribed it is left to the discretion of the State or the prescribed authority, either to indicate the act of misconduct or undesirability of continuance in' office in the show cause notice itself or separately. The mandate is that an opportunity to show cause is to be given before passing the order of remove from office.Harishankar Patel v. State of M.P., 1999 (1) MPLJ 16 (DB).
3. Form forgiving show cause notice.-Section 400ftheActdoes not "-, -I' prescribe any particular form in which show cause notice is to be given or the misconduct has to be enumerated. Harishankar Patel v. State of M.P.,
1999 (1) MPLJ 16 (DB).
4. Ex-parte order.-Petitioner submitted his reply on notice but failed to appear on date fixed so SDOpassed an ex-parte order. Held, the said order is not given in violation of natural justice but is appealable under Rule 3 of Panchayat (Appeal and Revision) Rules, 1995.Pratap Singh Yadav v. State ofM.P., 2007(2) MPWN 59.
5. Difference of proceedings under Ss. 40 and 92.-Proceedings under section 92 are quite different than that of section 40. No action of , .•."moval of a -Sarpanch of the. Gram. Panchayat can 00 -taken by the prescribed authority in the proceedings initiated under section 92. Maya' Choudhary v. State of M.P., 2012(2) MPLJ 90 = 2012(5) MPHT 240.
6. Misconduct and removal of Sarpanch.-Under the provisions of the Act a Sarpanch is required to convene periodical meetings of the Gram Sabha and the resolutions are to be passed therein. It is for the Sarpanch
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8.40
",,, basis ofwhich the proceedings are started. The order ofremoval ofan elected officebearer is also a penal provision contained in section 40 of theAct, and in elected office bearer ofPanchayat elected by people is not to be branded unceremoniously. The show cause notice required to be issued under the said proceedings is to reflect the charges on the basis of which the proceed. ings are started under section 40 of the Act. Only after completing the proceeding in this manner for the purposes of reaching to definite findings, whether any misconduct or other contingency mentioned in the provisions of section 40 of the Act is made out or not, the order can be passed by the
. prescribed authority. If it is not done, the proceedings under section 40 of the Act would be vitiated. Since such impugned order has been passed in a proceedings initiated on the complaint made by the petitioner under section 92 of the Act and the power under section 40 of the Act have been exercised by the SDO, the order impugned cannot be sustained. Maya Choudhary v. State of M.P., 2012(2) MPLJ 90 = 2012(5) MPHT 240.
[7]Removal of Sarpanch ..(a) Removal of the petitioner from the post of Sarpanch. No proper enquiry was conducted by the SDO before ordering removal. Case remitted to the SDO to conduct enquiry in accordance with law. Manita Jaiwar v. State of M.P., 2009(3) MPLJ 370 = 2009(2) JLJ 333 = 2009(3) MPHT 70.
(b)ASarpanch was removed Sub.Divisional Officer after considering an enquiry report submitted by three member committee. The petitioner was not given copy ofe.nquiry. report to submit his objections o~ explanations .... Principles of natural justice violated. Order of removal set aside and the Sub. Divisional Officer ordered to proceed after supplying a copy of such report to the petitioner. Rajendra Singh Raghuvanshi v. State of M.P., 2004
(4) MPLJ 6=2004 (3) MPHT 373.
(c) Procedure.- In proceedings for removal of a Sarpanch, witnesses must be examined and the Sarpanch should be given an opportunity to cross-examine those witnesses. Babita Lilahare v. Surendra Rana, 2004 (1) MPLJ 27=2004 (5) MPHT 79. See also Kailashchandra Jain v. State of M.P., 2003 (3) MPLJ 260=2002 (5) MPHT 523, Faiz Mohd Faiz v. Stateof M.P., 2004 (4) MPHT 393. '
(d)Defective Enquiry.-Prescribed Authority though aware ofthe fact that the officers who prepared the enquiry report did not appear for cross- examination, yet proceeded to hold the petitioner guilty of charges on the basis of same enquiry report. It is not fair trial. An order of removaVdis- qualification based on such defective enquiry cannot be given the stamp of approval. Smt. Phool Bai v. State of Madhya Pradesh, 2009(2) MPHT 68 =
2009(1) JLJ 437.
(e) Secret enquiry or preliminary enqui,j alone is not enough. S.D.a. should hold enquiry according to law. Mangobai v. State of M.P., 2003 (2)
MPLJU2.
(f) Grant ofstay.-When an appeal is pending for hearing against the removal order of a Sarpanch and if the Sarpanch. filed an application for interim relief for staying the operation of the removal order, it cannot be refused because the holding of a democratic office and removal therefrom, under the Constitution of India, cannot be treated lightly. Stay should be
67
has,to,be enumerated. The mode followed for taking action under section 40 , ,if lield to be valid, it cannot be said to be invalid for action of suspension under the said clause (b) only on the ground that the charge sheet and notice to show cause were composite. Harishankar Patel v. State of M.P., 1999 (1)
" MPLJ 16 (DB).
2. Removal of Sarpanch and/or Officer Bearers.-[l] Bar of con- tinuing inquiry.Speci{iedPeriodFor.-(l) The proviso to 8AO(1)(c)of the Adhiniyam,1993 prescribes a bar of continuing inquiry beyond a particular period. The object ofthe proviso is that if an office bearer of the Panchayat has committed misconduct, then it is necessary for the prescribed authority to complete the inquiry within a period of90 days and beyond the aforesaid period, he has to take permission from his senior officer in writing and request extension of time and time shall not be extended more than 30 days. The words which are used are that "such extension of time shall not be more than 30 days". It means that even the higher officer isnot competent to grant more than 30 days time to complete the inquiry. It is in consonance with the object thatjfthere are allegations ofmisconduct against the office bearer of , a Panchayat, on which he could be removed, the inquiry must be completed within specified time and ifit is held that this is a procedural requirement and on this ground the inquiry would not be vitiated, then the prescribed authority may take indefinite time to conclude the inquiry, it would be against the intention and specific unambiguous intention of the statute. It is not only ~jJrocedurallaw but it is ft~ubstantiv~Jaw bec~lJseit gives power o[removal to theprescribed'-authorityto remove the-office bearersrifthe"
Panchayat. Dhanwanti v. State of M.P., 2013(1) MPLJ 549 (DB) = 2013(2)
MPHT 254 (DB). ,.
[2JProcedure.-Tlll' authority on a complaint unSAOof the Act had issued notices to petitioner in response t.owhich th~ petitioner_had filed an applicati.on under 8.11 .ofthe CPC but the S.D:q.,'instead of passing any order thereon, proceeded to rem.ovethcp,;t itioncr from the post of8arpanch under SAO of the Act. The authority.-wa.reqtlil'l'l[to give an opportunity to the petition!'!' to file a reply and th."reafterpa.s a detailed order after following the-pr.ocedure pl'!'m'ibe!lby the law under-SAO 'of the Act.- Gyanmati Basore v, State of M.P.-,2013(2) MPLJ 200 = 2013(3) MPHT
320.
[3] Prescribed authority has no jurisQiction to pass order .ofremoval of Sarpanch beyOnd period ofl20 days. Proviso to Section 40(1)(c) is mandatory in nature. 2013(2) JLJ 84 Relied on. Saniosh Raghuvanshi v. State 01'If.P,.
2013(2) MPWN 2B(DB).
[4]Complaints, -Complaints against petitionerregardingnon-payme nt of wages to workers is a serious matter. Collector directed to take action againstthepetitioner:Kusuma Yadav v. Stat~ ofM.P., 2013(2) MPWN 109. , ,,[(jUt ,w~~_!,llgg~~t!!-"tSQP.~.u9!ofp~ti,tiQn!,r'~ t>!!~ba'\.~was unla)Vful. Sarpanch!Petitioner could not be dIsqualified on this ground and cannot be removed from the post of Sarpanch. 2012(2) sec 407 Foil. Guddi Devi v. State of M.P., 2013(2) MPWN 117.
[6J Removal of office bearer of Panchayat.-Show cause notice re- quired to be issued under the proceedings must reflect the charges on the
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COMMENTARY
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8.40
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PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)86
ing any pecuniary benefits to any relative, such as giving out any type of lease. getting any work done through them In the Panchayat by anoffice bearer of Panchayat. Explanation.-For the purpose of this clause the expression
'relatlve' shall mean father. mother. brother, sister, husband. WIfe. Son. daughter. mother-In-law. father-In-law. brother-In-law. slster-In_ law. son-In-law or daughter-In-law:]
I[Provided further that the final order In the Inquiry shall be passed WIthin 90 days from the date of issue of'show cause notice to the concerned office bearer and where the pending case Is not decided WIthin 90 days .. the prescribed authOrity shall inform all facts to his next senior officer in Writing and request extension of time for disposal of the inqUiry but such extension of time shall not be more than 30days.]
(2) A person who has been removed under sub-scction (1) shall forthWIth cease to be a member of any other Panchayat of which he is a member, such person shall also be disqualified Ii,,' a period of six years to be elected 2[ x x x J under this Act.
I. .Requirements of clause (1))of sub'sect.ion (1) .. " _
2. Removal of Sarpanch and/or Offi.cer Bearers.
3. Form for giving show cause notice. 4 .. Ex-parte order.
5. Difference of proceedings under Ss. 40 and 92
6. Miscondnct and removal of Sarpanch.
7. Principle of natural justice to be followed.
8. OpPortunity to show cause,
9. Mcanil1~ of "as far as possible".
'10. Suspension of Sarpanch. II.' Jurisdiction.
12. Jurisdiction of Additional Collector.
13. Removal of President of Janpad Panchayat.
14. Relative
1. Requirements of clause (b) of sub-section (1).-What is required under clause (b) of sub-section (1) is that.the office bearer is given a show cause notice for removal and he is served the charge-sheet. Once those twin conditions are fulfilled the prescribed authority get the jurisdiction to suspend the office bearer. The word 'alongwlth' in clause (b) of sub-section (l)cannot be read to mean that notice to show cause for remove and charge sheet have to be separately given. Section 40 ofthe Act does not prescribe any particular form in which show cause is to be given or the misconduct
1 Subs. by M.P. Act 20 of 2005, w,e.f. 30~8-2005 for the-Tollowtng :_
"Provided that the final order in the inquiry shall as far as POSsible be passed within 90 days from the date of issue of show cause notice to the concerned officer bearer."
2 Omitted, by M.P. 26 of 1994 [30.5.94],the words "co-.opted or appoJnted",
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PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)85
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l vacated. Kedar Singh v. State of M.P., 1996 (I) MPWN 125.
4. Delegation of power under sub.section (2) by State Govern. ment to 'Collector'. 'Collector' includes 'Additional Collector'.-The , State Government delegated its power under section 39(2) to confirm
suspension of 'Sarpanch'. to the 'Collector' vide notification issued under
section 93. By virtue of the provisions ofSs.15, 16 and 17 of the M.P.Land Revenue Code, the term 'Collector' includes "Additional Collector".Kaushal Prasad Kashyap v. State of M.P., 1999 (1) MPLJ 455.
5. Sub.section (2). Order of suspension of a Sarpanch of Gram Panchayat not confirmed by State Government within stipulated time. Effect.-An order of suspension of a Sarpanch of a Gram Panchayat has to be forwarded to the State Government and the State Government is obliged to pass some order one way or the other within 90 days. In case no order is passed within a period of ninety days from the date of its receipt then the order of suspension is deemed to have been vacated. Kedar Singh
v. State of M.P., 1996 MPLJ 372.
6. Effect of amending Act 43 of 1997-Suspension under clause (b).- Where a Sarpanch was suspended under clause (b) of sub- section (1), the same clause having been omitted by amending Act 43 of 1997, the suspension ofthe said Sarpanch also goes away on 5-12-1997, when the said Act came into force.Asha Dwivedi v. Sub-Divisional Officer, Deosar, 1999
(2) MPLJ76.
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40. Removal of office bearers of'Panchayat.-(I) The State Government or the prescribed authority may after such enquiry as it may deem fit to make at any time. remove an office bearer-
(a) if he has been guilty of misconduct in the discharge of his duties; or
(b) if his continuance in office is undesirable in the interest of the public:
Provided thatriojJerson- shaUbi,removedliriies;,he has- h""ngiven' - ---, an opportunity to show cause why he should not be removed from his office.
Explanation.-For the purpose' of this sub-section "Misconduct"
shall include-
(a) any action adversely affecting-
(I) the sovereignty, unity and integrity of India; or
(ii) the harmony and the spirit,?f common brotherhood aIIlQngst all the people of Slate transcending religious. lin- guistic, regional, caste or sectional diversities; or
. (iii) .the dignity. of women; or
(b) gross negligence in the discharge of the duties under this Act. I[(c) the use of posItion or influence directly or indirectly to secure employment for any relative in the Panchayat or any action for eJdend- I Ins. by MP 2 of 199717-1-1997).
rigour of S.39(1)(a) will not come in his way, merely because the appeal against acquittal has been admitted byHigh Court. True, it is that on appeal being admitted for hearing while exercising the powers of appeal; the judgment of acquittal can be reversed and the person acquitted can be con~icted, but the fact remains that there exist a judgment of acquittal, which is operative in his favour and, therefore, he cannot be deprived to enjoy the fruits of the same, merely because appeal against the same has been admitted. Ramesh v. State of M.P., 2013(1) MPLJ 229 = 2013(1) MPWN 102 = ILR 2013 MP 74 (DB).
2. Suspension.-[l] There is no provision under the Act for suspending a Sarpanch only on the ground that the FIR is lodged against him. Section 39(1) specifically lays down that a Sarpanch can be suspended on framing ofa charge in a criminal case. Admittedly no charge has been framed against the present petitioner. Hence, impugned order cannot be sustained. Hukiya Bai v. State of M.P. , 2007(11)MPWN86.
[2] No notice needed-The section does not require any show cause notice for suspension. This show cause notice for removal from the office is contemplated under section 40 of the Act while section 39(1)(b) only says about issuance of notice alongwith a charge-shcet to show cause why the person be nor removed from office.Harishankar Patel v. State of M.P., 1999
(1) MPLJ 217=1999 (1) JLJ 255. [3J Service of confirmation not necessary-Under sub-section (2) service of confirmation of order of suspension is not obligatory on the part
. of the State Government'as a n;portis made to the State Governmentaild .. the State Government is supposed to act on the report and to pass the order within 90 days from the date ofreceipt ofthe report, ifthe State Government for reason whatsoever fails to confirm the order ofsuspension within 90 days from the date of receipt of the report, then the fiction to come into play and the fiction is that in that event the order of suspension shall be deemed to have been vacated. Harishankar Patel v. State of M.P., 1999 (1) MPLJ 217=1999 (1) JLJ 255.
[4]Suspension of Sarpanch-Show cause notice should be accompanied with charge sheet detailing all allegations against him. All materials which.. substantiate allegations in the notice should be supplied. An opportunity to furnish reply should be real one and not a farce. Sarita Mabre v. State of
M.P., 1998 (1) JLJ 420.
[5] Power to suspend withdrawn on 2-10-1997 by Ordinance. Action taken prior to that date does not come to an end. Goverdhani Bai v. State of
M.P., 1998 (II) MPWN 49. .
3. Scope and effect of sub-section (2).-[1] No consequence is men- tioned in the Act where there is failure in reporting of suspension to the State Government within 10 days. The provision is obligatory. But where such suspension is not so reported, the order of suspension would not stand vacated automatically. Second part of the provision in the sub-section regarding confirmation of suspension order within 90 days is mandatory. Arjunlal Gupta v. State of M.P., 1998 (1) JLJ 12.8.
[2]Where an order suspending the Sarpanch is not confirmed by the State Government within 90 days, suspension is deemed to have been
(PA)84
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8.39
71
1. General interpretation.
I-A. AppealagainstacquittalhasbeenadmittedbyHighCourt-Effect.
2. Suspension.
3. Scopeandeffectof sub-section(2).
4. Delegationof powerundersub-section(2) by StateGovernment' to 'Collector'-'Collector' includes'AdditionalCollector'.
5. Sub-section(2)-Orderof suspensionofa Sarpanchof Gram
Panchayat not confirmed by State Government within stipulated
time-Effect. .
6. Effectof amendingAct 43 of 1997.
1. General interpretation.-[l] The section provides for suspension of
an office-bearer, namely, the Sarpanch, Up-Sarpanch or a panch of a Gram
Panchayat and President, Vice-President and member nf a Janpad Panchayat or Zila Panchayat.
[2] Powers are vested in the prescribed Officer to suspend any of the above under the circumstances mentioned in clause (a) of sub- section (1).
[3] Clause (a) enumerat~s the list of offences and it says further that if
criminal proceedings have been initiated against any office-bearer and
charges have been framed against such office-bearer in such proceeding then, the concerned office" bearer may-be -suspended by fh,,, presctibed' ; Authority.
[4] It is then provided in sub-section (2) that the oraer of suspension shall be reported (intimated) to the State Government within ten days of the passing of the order. The matter then rests with the State Government to deal with it and pass necessary order thereon. The only other provision
made in this sub-section is that if the order of suspension is not confirmed
by the State Government within ninety days of the receipt of report then, the order of suspension will automatically lapse.
[5] Provision is made in sub-section (3) for election ofofficiatingSar-' panch, or President in a special meeting called by the Secretary or the Chief Executive Officer, as the case may be. Such officiating Sarpanch or Presi- dent shall continue in officeduring the period of suspension.
[6] Sub-section (3) also provides that where the office of Sarpanch or President was a reserve one for member of a Scheduled caste or Scheduled Tribe or a woman, the officiating 8arpanch or President shall also be elected from the same caste or sex as the case may be.
I-A. Appeal against acquittal has been admitted by High Court-. Effect.- In Section 39(1)(a) and (2) of the Adhihiyam, 1993 the Prescribed Authority has power to suspend from officeany officebearer against whom cI1arges .have been framed in. any criminal proceedings for the offences mentioned in sub-clause (a). The order of suspension passed under sub- clause (I) is required to be reported to the State Government within the prescribed period of 10 days and shall be subject to such orders as the State Government may deem fit to pass. The petitioner having been acquitted by the Competent Criminal Court, of the charges framed against him, the
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I[x x xl 2[(2) T"~ onler of suspension under sub-section (1) shall be reported 10 Ihe Slate Government or authoIised officerWithin a period of ten days and ,hall be subject to such orders as the State Govern- menloI' the aulhoIised officermay deem fit. If the order of sUspension is not confirmed by the State Government or authoIised officerWithin ninety days from the date of receipt of such report. it shall be deemedto have revoked.] 3[(3) In the event that the Sarpanch of Gram Panchayat, Presi- dent of Janpad Panchayat or Zila Panchayat, as the case may be is suspended under sub-section 0). the Secretary or the Chief Execu- tive Officer of the concerned Panchayat shall cause to be called a special meeting of the Panchayat immediately, but not later than fifteen days from the date of receipt of information from prescribed authority and the members shall elect from amongst themselves, a person to hold the office of Sarpanch or President temporarily, s the case may be, and such officiating Sarpanch or President shall perform all the duties and exercise all the powers of Sarpanch or President as the case may be, during the period for which such Suspension continues:
Provided that if the office of the Sarpanch or President is reserved for the member of Scheduled Castes or Scheduled Tribes or other Backward Classes or.fo,r a woman, the officiating Sarpanch'oi.Presi_ dent shall be eiected from amongst the m~mbers belonging to the samecategory:
Provided further that where the office of Sarpanch or President is reserved for a woman belonging to Scheduled Castes or Scheduled Tribes or other Backward Classes and there is no other woman member of the Panchayat belonging to that category who can be elected to officiate as Sarpanch or President. as the case may be, any other woman member belonging to the other reserved categories, may be elected to offl'ciate as Sarpanch or President asthe case may be]. (4)A person who has been suspended under sub-section (1) shall also forthWith stand suspended from the office of member Or office bearer of any other Panchayat ofwhich he is a member or officebearer. Such person shall also be disqualified for.being elected 4[xx xl underthe Act during his suspension, . I CI.(b) omItted by MP 43 of 199712-10-19971.
2 Subs. by M.P. Act 26 of 2012 [23-5-2012J. before substitution it was as follows:-
"(2) The order of sUspension under sub-section (lJ shall be reported to the State Government within a period of ten days and shall be subject to such orders as the State Government may deem fit to pass. If the order of Suspension is not confirmed by the State Government Within 90 days from the date of receipt of such report 1tshall be deemed to have vacated."
3 Subs. by MP 43 of 1997 [5-12-19971.
4 Omitted, by M.P. 26 of 1994 [30.5.941. the words "co-opted or appointed".
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38 8.39 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PAlS1
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[2]Where a casual vacancy occursin the officeofthe Sarpanch ofa Gram Panchayat, the Secretary of the Gram Panchayat shall cau'l~ to be called a special meeting of the Panchayat as soon as possible but not later than 15 days from the date of receipt of notice of vacancy from the Prescribed Authority. In the meeting socallcu, the members shall elect a newSarpanch
from amongst themselves temporarily till a new Sarpanch is -elected in
accordance with the provisions of the Act and the rules. Where the post of
casual vacancy was reserved for any of the communities or for woman then
it will be filled by the member of same community or a woman. In case no other woman of the reserved class is available then a woman of any other category may be elected temporarily.
[3] It is very important to note that the secretary has not to rush for calling the aforesaid meeting unless he is intimated by the prescribed authority that a vacancy is caused. The reason is that a resignation may also be withdrawn, therefore, the secretary should wait till he receives intimation ofvacation from the aforesaid authority.
3. Handing over of charge.-Where the outgoing office-bearer fails to hand over any record, article, money or property of the panchayat, the prescribed authority may direct him to do so and if he fails to comply his direction then, steps under section 92may be taken against him and he may also be prosecuted under section 98.
[4]The temporary' filling up of the post ofaS"lJ'ancll under c1ause(b} of sub-section (1) of Section 38 'does not create aright in favour of such officiating Sarpanch to claim that no election can be held under clause (a) ofSub-section (1) ofSection 38 till the entire term expires. Phoola Ea,-v. The State, 2009(2) MPHT 75 = 2009(11) MPWN 21.
39, Suspension of office bearer of Panchayat. -(1)The prescribed authority may suspend from office any office bearer-
(a) against whom char~e.s, have been framed in any cr~lnal ,., 'proceedings ulucr (Chapter V-A. VI. !Xl, IX-A. X, XII. Section 302. 303. 304-B. 305, 306. 312 to 318. 366-A, 366-B, 373 to 377 of Chapter XVI. Section 395 to 398, 408, ..409, 458 to 460 of Chapter XVII and Chapter XVIII of the Indian Penal Code. 1860 (XLVof 1860) or under any Law for the time being in force for the prevention .of adulteration of food stuff and drugs, 2[suppression of Immoral traffic in wom.en and children, protection of civil rights and Preven- tion of Corruption]: or
----------------
Subs. by M.P.Act 5 of 199915-4-19991.
Subs. by M.~.Act 5 of 1999[5-4-19991.
- - --- . - .
74
(PAlBO PANCHAYAT RAJ AVAM GRAM SWARAJ ADH!., 1993
8.38
j
i I", I l , I
:,
accordance With the provisions of the Act and the rules made there-under; . I((b) in the event of occurrence of a casual vacancy inthe.offlce of' the Sarpanch of a Gram Panchayat, the Secretary of the Gram Panchayat, as the case may be. shall cause to be called a special meeting of the Panchayat immediately, but not later than fifteen days from th!, date of receipt of information from the prescribed authOrity regarding the vacancy and the members shall elect from amongst themselves a person to hold the.office temporarily till a new Sarpanch:
as the case may be, is elected in accordance With the provisions of this Act and the rules made thereunder and such officiating Sarpanch, as the case may be, shall perform all the' duties and exercise all .the . powers of Sarpanch, dUring the pendency of election:
Provided that if the office of the Sarpanch is reserved. for the member of Scheduled Castes or Scheduled Tribes or other Backward Classes or for a woman, the offioiating Sarpanch shall be elected from amongst the members belonging to the same category:
Provided further that where the office of Sarpanch is reserved for a woman belonging to Scheduled Castes or Scheduled Tribes or other Backward classes, and there is no other woman belonging to that category who can be elected to officiate as Sarpanch, any other woman belonging to the other reserved Gategories may be elected. to offiCiate as Sarpanch during the casual vacancy].. ...•....__ , cY (c] if the' out-going office-beare~ fa\ls to hand over any record, article, money or property of the Panchayat forthWith to his successor the prescribed authority may by order in writing direct him to do so and on his fallure to comply With such direction the prescribed authority may proceed against him in accorQance With Section 92 and take necessary steps to prosecute him under Section 98.]
(2) 210mittedJ
COMMENTARY
Ii
ij ,
•
II
1. Casual vacancy.-If before expiry of the term. a casual vacancy in the officeof any office-bearermay occur due to followingreasons:-
(i)When such an officebearer expires;
(ii)When such an officebearer resigns from his office; (iii)When a no-confidencemotion is passed against him; (iv)When he is removed fromhis office;and
(v)When he becomes member of State L~gislative Assembly or eitherHouse ofParliament. . .
2. Filling of casual vacancy.-fl] Where a casual vacancy in the office of an office-bearer occurs, it has 'got to be filled as SOonas possible in accordance with the provisions of this Act and the Rules made theretmder.
1 Subs. by MP 43 of 1997 [5'12-1997) .
2 Omitted by MP43 of 199715-12-1997).
,
f
: ,
75
8.38 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)79
a person conceals hi~ real caste and contests election on a seat reserved for Scheduled Caste or Scheduled Tribe and gets hill'self elected, his election can be challenged either under section 122 of the Panchayat Act or under section 36(2) of the same Act. Roshanlal Maravi v. Shambhoo Singh, 2005
(1) MPLJ 467=2005 (1) MPHT 309 (DB).
37. Resignation by officer bearer of Pancbayat.-( 1)1\panch of a Gram Panchayat or a member of Janpad Panchayat or a member of Zila Panchayat may' resign his office by giving notice tn writing to that effect to the Sarpanch or President as the case may be.
(2) The Sarpanch or Up'Sarpanch of a Gram Panchayat or the President or Vice-President of a Janpad Panchayat or Zila Panchayat may resign his office by giving notice in writing to the prescribed authority.
(3) The manner of giving notice and procedure for tendering resig- nation and Its becoming effective shall be as may be prescribed:
Provided that a person tendering resignation may withdraw his resignation before It becomes effective.
COMMENTARY
Acceptance of resignation. ord.er- Validity ~f,-Under S.3'7ccthec resignation could not be accepted without affording him an opportunity to reconsider the decision, the Rules have been framed under Section 37 namely the M.P. Panchayat (Resignation by Officebearers) Rules 1995 and according to its Rules 3& 4, the resignation couldbe accepted under sub-rule
(4) of Rule 4 only af'ter a full and complete compliance with the provisions of preceding two sub-rules of Rule 4, contemplating consideration thereon by Panchayat at its next meeting under notice to the petitioner. A bare perusal of the record would reveal that the resignation has been accepted by circumventing the procedure prescribed therefor, hence non-compliance with the mandatory'j,rovisionsofsub-rules (2)'lliid(3) i,fsuffiCienttoh"ld . that the resignation was not validly accepted. Bihari Dos v. State of M.P., 2014(1) MPLJ 148 = 2013(4) MPHT 542 = ILR 2013 MP 1069. Rules:- The State Government has made the following rules in exercise- of the powers conferred by this section. These Rules shall be found under Rules given separately.
"PANCHAYAT (RESIGNATION BY OFFICEBEARER) RULES, 1995"
38. Filling up of vacancies.-I[(I} (a) In ithe event' of death, resIg- nation, no confidence motion, or removal of an office bearer of a
. -P:rnchayatbr-onhls becbrnlhga: meniber of State Legislative Assembly or a member of either House of Parliament. before the expiry of his term, a casual vacancy shall be deemed to have occurred in his office and such vacancy shall be filled as soon as may be by election In
1 Subs. by M.P. 26 of 1994 [30.5.94).
76
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PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993
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Iii,! lil,'I,, contests the election after concealing the disqualification or no person who has become disqualified after the elections are over is continued as an office bearer in the Panchayat." Not only this, the Collector als'o has to se~ that whether the disqualification is removable an if yes, but not removed then in such a case the Collector may declare that the office has became vacant. Bhuvaneshwar Prasad v. State of M.P., 2009(1) MPLJ 434 (DB) = AIR 2009 (NOC) 242 MP (DB) = 2008(5) MPHT 72 (DB) = 2008(3) JLJ 293:
13. Incompetent proceedings.-Ifincompetent proceedings were sub~ mitted before the S.D.a. then the question "questioned and decided by an
election petition" would not come up as a bar because a. question can be
raised and decided in a validly constituted election petition, Bhuvaneshwar Prasad v, State of M.P., 2009(1) MPLJ 434 (DB) = AIR 2009 (NOC) 242 MP (DB) = 2008(5) MPHT 72 (DB) = 2008(3) JLJ 293. '
14. Procedure to be followed by S.D.O ..-When an election petition was not duly constituted is filed before the S.D.a. and the S.D.a. finds that the question raised in the petition can be conveniently decided by a higher officer in exercise of the powers under S,36 then a reference certainly could be made by him because S.36(3) clearly provides that the Collector may give his decision either on an application made to him by any person or on his own motion. Bhuvaneshwar Prasad v. State of M.P., 2009(1) MPLJ 434 (DB) = AIR 2009 (NOe) 242 MP (DB) = 2008(5) MPHT 72 (DB) = 2008(3)
JLJ293.
15. Appeal against deCision of competent authority.-[l) Provision is made iii sub-$ectiort (4) for preferring an appeal against the decision;'f ,,'"
the competent authority by the person aggrieved. Where such decision is ' given by a Collector, the appeal would lie to the Commissioner and where the decision is given by the Commissioner the appeal would lie to the Board of Revenue.
[2] Limitation for such appeal is provided as 30 days from the date of order.
16. Quo Warranto Writ,-Can be issued by the Court when a person in a public office has been appointed in violation of statutory provisions. Virendra Tyagi V. State of M.P., 2011(1) MPLJ 245 ='2011(1) iJLJ 181 ='
2011(2) MPHT 361.
17. Finality of decision.-[l] An order passed in appeal shall be final, meaning thereby that no further appeal against such a decision would be competent. It should also be understood that a decision ofthe Commissioner as a competent Authority is appealable but his decision as an appellate authority would be final because no second appeal against his decision is provided in this sub-section. '
[2) Writ not tenable.- The Upper Collectov having conducted an en- quiry set aside the election ofthe petitioner as Panch on the ground that his fourth child was bom on 17-2-2001 that is to say, after the cut off date 26-1-2001. Held, alternative appeal remedy available hence this writ is not, maintainable. Dhaneshwar Devangan v. State ofC.G., 2006(1) CGLJ 221 = 2006 CGLT 29.
18. Concealment and misrepresentation of caste.Contesting on reserved seat and getting ekded.Challenge to such election.- Where
77
S.36 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)77
[3] Disqualified for the post of Office Bearer.-Th, petitioner gave his one child out of three, to his brother. The registered adoption deed was executed after the cut-off date. Hel&that petitioner has three children at the time of election therefore he was rightly disqualified to contest election ofmember of Janpad Panchayat by the Returning Officer. Pradeep Kumar Tiwari v. State of M.P., 2006(3) MPLJ 276.
8. Bar when not applicable.-Contention that in view of ~ub-section (2), elected officebearer.ofPanchayat is removable only after filing election petition. Sub-section (2) of section 36 of the Adhiniyam is to be read in context to sub-section (1). In order to construe section 36(1) as well as sub-section (2), both the provisions are to be interpreted in order to make the section 36 as a whole workable. Contention rejected because this bar would not come in the way when a writ petition seeking relief of quo warranto is filed. Suresh Baba s / 0 Agya Ram Sharma v. Virendra Tyagi, 2011(1) MPLJ 454 = 2011(1) MPHT 72.
9. Decision about vacancy.-[l] As stated above, an office-bearer who becomes disqualified subsequently, shall be so declared and his office shall be declared vacant by a competent authority. The competent authority is,-.
(I) Collector, in the case of Gram Panchayat and Janpad Panchayat; (il) Commissioner, in the case of Zila Parishad. [2]The competent Authority shall give his decision either on an applica- tion being jllade by any pe.rson or.he.may.do so on-his.own motion, But no--' .. order shall be passed 'against any person without giving him a reasonable opportunity of being heard. For comments. on 'reasonable opportunity', kindly look to comments under 8s.40 and 87.
10. Evidence.-Unfair means and corruptpractice.-80me evidence does not lead to a conclusion that returned candidate had taken recourse to unfair means and corrupt practice. Uma Shimkar Chobey v. Madan, ILR
2013 MP 2603.
11. No cessation till decision.-It is also provided in sub-section (3) that no person shall cease to be an office bearer until it is decided by the competent officer that he is disqualified and his post is declared vacant.
12. Interpretation of Sub-sections (2) & (3).
(a) Sub-section (2~-word "and"to be read as "or".-In the language employed in Section 36(2)(a) is "concealing his disqualification for it which has not been questioned and decided by any election petition under Section 122"would not mean that filing of the election petition itself would arrest the jurisdiction of the Collector. The word u'sed "questioned and decided"
'are to be read as one qualifYing condition. The words "questioned" and
"depjqed" are to be read as one. The wonJ 'and' ',certainly can be reacJ as 'or'
if the intention of the legislature is not clear or the law requires the word
"!lnd" j;o bel,l~ed '!s,"or".Bhuvane~hwar Prasadv.St-ate of M.P.,-2009(1)
. "MI'>LJ434 (DB) = AIR 2009 (NOe) 242 MP (DB) = 2008(5) MPHT 72 (DB) = 2008(3) JLJ 293.
(b) Sub-section (3).-Sub-section (3), if is read in its true perspective and in accordance with legislature then would clearly show that legislature wanted the Collector to exercise the power to see that no disqualified person
78
8.36
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6. Disqualification becoming inoperative.-Where an.officebearer was convicted but his conviction was suspenlled by the High Court in appeal, he cannot be treated as convicted and consequently cannot be removed from the office. Every consequent disqualification becomes inoperative and
. remains in abeyance pehding his appeal. Janiuiia 'Prasad Jaisani u. Smt. Shikha Dubey, 1999 (2) JLJ 382.
7. Previous provision of S. 36(1)(m).-Disqualification Clause Jm) of sub-section (1) of Section 36 has been deleted by M.p. Act 27 of2006 w.e.f. 1-09-2006, before deletion it was as follows.-
"(m) has more than two living children one of whom is born on or after the 26th day of January, 200t"
Some cases regarding previous S. ~6(1)(m).-
[lJ Birth date oflast issue accepted as 5-12-2000, extended date by High Court was 30-4-2001. Held, disqualification not attracted. Siyawati u.Phool- wati, 2009(1) MPHT 301 = 2009(1) JLJ 431 =AIR 2009 (NOC) 425 MP = 2008 (4)-MPW437 =2009(2) MPWN 49. ..
[2J Since the fifth child of appellant was born on 17-03-2001 and not on 17-3-2000 prio~ to 26th January, 2001 therefore the appellant has earned disqualification under S.36(I)(m) ofthe Act. Lajja Bai u. State of M.P., 2008
(2) MPLJ 26 = AIR 2008 MP 185[DBJ. . of his release. Appellant was convicted under section 302, Penal Code and was sentenced to life imprisonment. Five years h'!tve not yet been elapsed after his release and, therefore Writ Court has rightly held that the appel- lant was having disqualification for holding the office ofSarpanch. Suresh Baba s/o Agya Ram Sharma u. Yirendra Tyagi, 2011(1) MPLJ 454 =2011(1) MPHT 72. '. .
5. Disqualification ofmember.-Disqualification of member under is a matter of .record. Prabhasingh u. State of M.P., 1998 (II) MPWN 37. . [2J Convicted person should vacant the post.-A convict cannot be allowed to occupy an elected post where a statute clearly prohibits. Section 36(1)(a)(ii) is quite clear that a person will not be eligible to hold a post for a period of 5 years if he has been convicted for not less than six months. Respondent No.9, President, Janpad Panchayat, Shahpura was convicted under S.326 of IPC andS.25 of Arms Act and sentenced for a period of 3 years and remained in custody till 2003. He could not have contested till . 2008 in view of provisions of Act and he will cease to be such office bearer. His post shall became vacant. Shiv Singh Rawat v. State of M.P., 2008 (2) MPLJ 573 = 2008(2) JLJ 124 = AIR 2008 (NOC) 1390 = 2008 MPHT41[DB].
[3] Past disloyalty is also disqualification to election of Sar- panch.-Conductof police constable of showing indecentbehaviouLwith,. woman guard, posted injailwatd, exerclse of undue power, using abusing language, show disloyalty. He had not adhered to the official discipline that was expected to him. Held, he has incurred the disqualification u!s.36(1)(e) of the Act for the post ofSarpanch. Surendra Singh u.Nasrat Ali, AIR 2007
(NOC) 2581 MP[DB] .
8.36 PANCHAYATRAJAVAMGRAMSWARAJ ADHI.,1993(PA)76
79
PANUl'tlirAl' HAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)73
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\ he shall, subject to the provisions of sub-section (3), cease io be such office bearer and his office shall become vacant:
'. Provided that where an application is made by an office bean .•.to the Panchayat for leave to abSent himself under clause. (c) and thc P,mchayat frols to inform the applicant of its decision on the applica- tion within a period of one month' from the date of receipt of the application, the leave applied for, shall be deemed to have been granted by the Panchayat.
(3) In every case the authority competent to decide whether a vacancy has occurred under sub-section (2) shall be Collector in respect of Gram Panchayat and Janpad Panchayat and Commissioner in respect of Zila Perished who may give his decision either on an application made to him by any person or on his own motion. Until, the Collector or the Commissioner, as the case may be, decides that the vacancy has occurred, the person shall not cease to be an office bearer:
Provided that no order shall be passed under this sub-section against any office pearer without giving him a reasonable opportunity of being heard. .
(4) Any person aggrieved by the decision of Collector or Commis- sioner, as the case may be, under sub-section (3), may, within a period of 30 days from the date of such decision appeal to Commissioner or Board of Revenue respectively whose orders in such appeal shall be . finaL. . .
COMMENTARY
SYNOPSIS
I. Objectof the section.
2. Applicability.
3. Persons who are disqualified.
4. Disqualificatjon.
5. DisquaUfication of member.
6. Disqualification becoming inoperative.
7. Previousprovisionof S. 36(l)(m).
8. Barwhennotapplicable. .9. Decision about vacancy.
10. Exidence.
11. No cessation till decision
12. Interpretationof Sub-secti0l1S(2) & (3).
13. Incompetent proceedings. '.
14. Procedureto be followedbyS.D.O.
15. Appeal against decision of competent authority.
16. QuoWarrantoWrit
17. Finalityofdecision.
18. Concealment and mislcpresentation of caste-Contesting on reserved scat and getting elected.Challenge to such election. 1.Ohject of the section.-The section specifies those person who would not be competent to become an officebearer of any panchayat. The category Dawgnar,-"uur\ll} IVll"LJ-1l7b=ZIJUr(5) MPHT 466.
[5] Effect of disqualification suppressed - election declared il- legal.-Respondent did not pay the dues recoverable by the Panchayat and subsequently contested an election ofJilaPanchayat by suppressmg the fact of his disqualification and was elected. Hewas also proceeded under SAO of the Act and was removed from the post of Sarpanch. Held that he was no.' entitled to hold the office as he was not eligible to contest the election. I, . does not require any inquiry. His election dedared illegal. AIR 1999 SO 17~ :
and AIR 2003 SC 2128 Relied. Suresh Clwudhary vAtarlal Verma, 2006W' MPLJ 506 = 2006(3) MPHT 213.
4. Disqualification.-[l] Factum of encroachment must be constru~d strictly, in absence of any evidence, candidate -cannot be held to be dIS- qualified. Geeta Bai v. Sub Diviswnal Officer, 2013(3) MPLJ 106 = ILR 2013 MP 2579 = 2013(5) MPHT 196.
[2] Provision makes the person ineligible to be the office bearer of Panchayat if he is convicted and sentenced to not less than 6 months imprisonment and unless a period of five years has elapsed since the date
80
(PA)72 PANCHAYAT RAJ AVAM GRAMSWARAJ ADHl., 1993, , S. 36
I • of 1973) or In any Co- operative Society which shall contract with or be employed by or on behalf, of the Panchayat; or
(ii) having share or Interest In any newspaper In which any advertisement relating to the affairs of the Panchayat Is inserted; or '
(Hi) holding a debenture or being otherwise concerned In any loan raised by or on behalf of the Panchayat;
• (g)'.Is employed as paid legal practitioner on behalf of the Panchayat; or
(h) Is suffering from a variety of leprosy which Is Infectious; or
(i) has voluntarliy acquired the citizenship of a Foreign State. or is under any acknowledgment of allegiance or adherence to a Foreign State; or
U) has been disqualified under the Act repealed by Section 130 during the period of fiveyears preceding the date of filing a nomination paper in any election to be held for the first time under this Act and the period of such disqualification has not elapsed or the disqualification has not been removed; or
(k) is disqualified by or under any law for the time being in force for the [niipose of election-tothe StMe Legisla.tiveAssembly:
Provided that no person shall be disqualified on the ground thai he is less than 2'5 years of age if he has attained the age of 21 years.
(1) is so disqualified by or under any law made by the legisla- ture of the State.
Ilx x xl
(2) If any person having been elected 2[xx xl as an office bearer of Panchayat:-
(a) subsequently becomes subject to any of the disqualification mentioned In sub-section (1) and such disqualification Is not removable or being removable is not removed 310rbe- comes office bearer concealing his disqualification for it which has not been questioned and decided by any election petition under Section 122J;
(h) accepts employment as legal practitioner against the Panchayat; .
(cl , absents himself -from three coilsecutlve meetings of the Panchayat or its Committee or does not attend half the number of me!'tlngs held during .the pJ;Jiod of six months without the leave of the Panchayat; ,
"1 Cl. (m) was ins. by M.P.14 oJ 2000, w.e.f.26.1-2001 arid deleted -bY MP Act 27 of 2006. w.e.f. .1-9-2006, before deletion it was as under:- '" ,
"{m}has more than two living children one ofwhorn is born 1111' or after-the 26th day of January.,2001." . '. . '
2 Omitted by M.P. 26 of 1994 [30.5.941 the words "nominated '~rl'(Jopte"d"".
3 Added by M,P.Act 5 of 1999 15-4-1999).
81
8.36
PANCHAYATRAJAVAMGRAMSWARAJ ADHI.,1993
(PA)71
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elapsed since his conviction; or
(ll) of any other offence and had been sentenced to imprison- ment for not less than six months. unless a period of five years or such less period as the State Government may allow in any particular case has elapsed since his release; or
(b) is of unsound mind and stands so declared by a competent court; or
(c) is an appllcant to be adjudged an insolvent or is an undis- charged insolvent; or
(ca) I[x x xl
2[(cb) has not paid all the dues which are recoverable by Panchayat and h(ls not flied with nomination paper. the declaration of such intention that no money is due to be paid by him on any account payable to the Panchayat; or (cc) has encroached upon any land or buildings of the Panchayat and Government; orl
(d) hold an office of profit under any Panchayat or is in the service of any other local authority or Co-operative Society or the State Government or Central Government or any Public Sector Undertaking under the control ofihe Central Government or the State Government;
Provided that no person shall be deemed'to have in- curred disqualification under this clause by reason of being appointed as a Patel under the Madhya Pradesh Land Revenue Code. 1959 (No.20 of 1959); or
3[(e) has been dismissed from the service of the State Govern- ment or Central Government. or a panchayat. or any other local authority. or a Co-operative Society .. or any Public Sector undertakings under the control of the Central Government or the State Government for corruption or for disloyalty; or) .
(I) has directly or indirectly any share or interest in any con- tract with, by or'on behalf of the Panchayat. while owning , such share or interest;
Provided that a person shall .not be deemed to have incurred disqualification under clause (I)by reason of his- (1)'Having share in any joint, stock company or a share or interest in any Association registered under the Madhya Pradesh Society Registrikaran Adhiniyam. 1973 (No. 44
Clause (ca) subs. by M.P. Act 8 of 2005 (l2~4-'2005l then onrltted by M.P. Act 18 of _.2007.[25-5-2007). Jhe omitted clause was as under:~
M(cal even after one year of being elected, does not have flush latrine in his residential premises; or".
New <;lauses (cb) & (cc) ins. by M.P. Act 16 of 2004, w.e.f. 15-12-2004, vide
Notification dated 15-12:-2004. pub. In M.P. Gaz.. Ext. Ordy .. dated 15-12-2004, p.
1113/' . Subs. by M.P.AcI5 of 1999 [5-4-19991.
82
8.36PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993
1 ~ub. for the words "one~year"by M.P. Act 18 of 2007 (25-5-200'('].
2 Sub. for the words "one-year" by M.P. Act 18 of 2007 [25-5-20071.
3' Ins. by MP 2 of 199717~1-19971.
36. Disqualification for being office bearer ofPanchayat.-(1) No person shall be eligible to be an office-bearer of Panchayat who-
(a) has, either before or after the commencement of this Act,
been convicted:- \
Ii) of an offence under the Protection of Civil Rights Act, 1955 (No. 22 of 1955) or under any law in connection with the use, consumption or sale of narcotics or any law corresponding thereto in force in any part of the State, unless a period of five years or such lesser period as the State Government may allow in any particular case has 1.A meeting called for consideration of no confidence motion cannot be
adjourned. Presiding Officer has no such power. Dropadi Bai v. State of M.P., 1998 (2) Vidhi Bhaswar 11.
2. Adjournment of meeting summoned for expressing no con- fidence.- A meeting summoned for expressing no confidence cannot be adjourned for want of quorum as the quorum has not been prescribed. The
presiding officerhas to only preside over the meeting but has no power to adjourn it. 1975 JLJ 500 Disting. Hargovind Johari v. Zila Panchayat, Morena, 1996 JLJ 231= 1996MPLJ 409.
3.Opportunity not given to adduce evidence.-RespondentNo.2 did not provide the opportunity to .adduceevidenceto the petitioner to establish the points raised in the memoofreference. Further more, under S. 35(4), a dispute is liable to be decidedas for as possiblewithin 45 days from the date ofreceipt. Respondent NO.2was expected to decide the reference case itself within the period prescribed under law. Held, impugned order not sus- tainable and reference case is liable to be decided afresh. Dinesh Sharma v. State of M.P., 2007(4) MPLJ 554.
For detailed comments, see comments under section 40.
(i) l[two and half year] from the date on which tn:e Zila Presi- dent or Vice- President enter their respective office;
(ii) Six months preceding the date on which the term of office of the President or Vice-President as the case maybe, 'expireS;
(iii) 2[six months] from the date on which previous motion o(no- confidence was rejected.
3[(4)If the President or Vice-President, as the case.maybe, desires to challenge the valldlty of the motion carried out under sub-section (I). he shall within fifteen days from the date on which such motion was carried, refer the dispute to the State Government, which shall decide it, as far as possible, within forly-five days from the date on which it was received by It, and its decision shall be flnal.]
COMMENTARY
(PA)70
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.33
8.35 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)69
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as
.1
(2) Unless otherwise provided In this Act the office bearers of Zila panchayat shall hold office for five years from the date of the first meetIng and no longer:
Provided that notwithstanding anything contained in this sub- sectIon an office bearer of Zila Panchayat shall cease to hold office forthwith on his ceasing to be-- .
[a) a voter of the Gram Panchayat area within the district; 1[(b) xxx)
(3) If before the expiry of the period prescribed in sub-section (2) the Zila Panchayat Is not newly constItuted, It shall stand dissolved on the expiry of the said period and the provisions of Sectiol. 87 shall apply thereto for a period not exceeding six months within which the Zila Panchayat shall be reconstituted in accordance with the provisions of this Act.
COMMENTARY
Co-option.-[l] An Office bearer ceasing to be a voter on delimitation cannot be co-optedunder 8.29(2). Anjana Mulkalwar v. State of M.P., 1998
(2) JLJ 328.
[2] An office bearer ceasing to be a voter on delimitation cannot remain an office bearer also:sinc~ he ~o 19:QgeremailJ-s ?voter. Anjang}lfJ!Jko,Lwar iI.StateofM.P.,1998(2)JLJ328:' , "" .. .,. . .
35. No confidence motion agalnst President and Vice-Presi- dent.-[ I) On a motion of no confidence being passed by Zila Panchayat by resoiution passed by a majority of not less than three fourth of the 2[elected members] present and votIng and such majority is more than two-third of the total number of 3[elected members] constituting the Zila Panchayat for the tIme being the President or the Vice-President against. whom such motion is passed shall cease to hold "office .... _... forthwith. .
(2) Notwithstanding anything contained in this Act or the rules made thereunder, President or Vice-President shall not preside over a meeting in which a motion of no-confidence is discussed against him . Such meeting shall be convened in such a manner as may be prescribed and shall be presided over by.an officer of the Government as the prescribed authority may appoint. 'The president or Vice-Presi- dent as the case ma:~be, shall have right to speak at or otherwise to _!
(3) No-confidence motion shall not He against the president or .vIce.president within a perlod.of:-
I
1 Olllitted by M.P. 26 of 1994 130.5.941.
2 Subs. by M.P. 32 of 1994[7.10.94].
3 Subs. by M.P. 32 of 1994[7.10.94]. I-
T
84
• •
(PA)68
. .
PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993
8:33
, ' I ', 1[Provided further that the officesof President reserved under this section shall be reserved by the prescribed :1uthority in the Zila Panchayat within the state by rotation In the prescrtbed manner). Provided also tha t the Zila Panchayat where there Is no reservation of sea,. for the Scheduled Castes or as the case may be, the Scheduled Tribes shall be excluded from drawing of lots for reservation of offices
of Presidents for such castes, or such Tribes, as the case may be;
(ii)Twenty fiveper cent of seats of President of the Zila Panchayats in the State shall be reserved for other backward classes. 2[(3) Subject to the provisions of sub-sections (2) and (4) the President and the Vlce-President of the Zila Panchayat shall be elected by and from amongst the elected members thereof.]
(4) If the President of a Zila Panchayat does not belong to the Scheduled Castes or the Scheduled Tribes or other Backward Classes the Vice-President shall be elected from amongst the members belong-
ing to such Castes or Tribes or Classes.
(5) If a President or a Vice-President of Zila Panchayat becomes a member of either House of Parliament or a member of the State Legislative Assembly or a Chairman or Vice-Chairman of a Co- opera- tive Society, he shall be deemed to have vacated his officeas President or Vice-President, as the case may be, with effect from the date "f hi8,---, "
becoming such member or Chairman or Vlce- Chairman and a casual vacancy shall be deemed to have occurred In such office for the purpose of Section 38.
33. Publication of names of members, President and Vice- President.-The names of members, President and Vice-President of Zila Panchayat shall be published by the prescribed authority In such
manner as may be prescribed.
3[33-A. Correction of clerical error or omission.-Notwithstandlng anything contained in the Act or the rules made thereunder. the clerical error or omission apparent on the face of the record regarding reservation of seats under sub-sections (4). (5) and (6) of Section 13, sub-section (2). (3) and (4) of Section 17. sub-sections (3). (4) and (5) of Section 23, sub-section (2) of Section 25. sub:sections (3). (4) and
(5) of Section 30 and sub- section (2) of Section 32. may be corrected by the prescribed authortty with the' prtor permission of the State Government or the officer authortsed by It for the purpose. at any time before the commencement of ejection proceedings.],
34. First meeting and term of office.-(l) First meeting of the Zila Panchayat shall be held within 30 days qf the date of publication under Section 33. Such meeting shall be convened by the prescrtbed authortty and provisions of Section 44 regarding meeting. as far as may be. shall apply in respect of the said meeting.
I Subs. by M.P.Act 5 of 1999 15-4-1999J.
2 Subs. by M.P. 26 of 1994 (30.5.941.
3 Ins.byMP20f 1997 [7-1-1997j.
85
, . " ,
30
I,
8.32
PANCHAYATRAJAVAMGRAMSWARAJ ADHI.,1993(PA)67
he
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ch
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ve
he
he
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tl.
• 1 : i f, i l.] ,, election of Zila Panchayat shall be reserved for women and seats may be allotted by the prescribed authority by drawing lots and by rotation 19 different constituencies in a Zila Panchayat in the prescribed manner.
l[x x xl
2[(6) The constituencies which have no population of Scheduled Castes, Scheduled Tribes or Other Backward Classes shall be excluded for allotment of seats reserved for Scheduled Castes or Scheduled Tribes or Other Backward Classes, as the case may be.]
COMMENTARY
Proviso omitted by M.P.Act 5 0(199915-4-1999]. ,.1 Ins. by M.P.Act 5 of 1999 [5.4-19991. , ~6in;tted by-M~P.26 ~(1994 i30:S~94J. Sub-sec. (1) subs. by M.P. Act 20 of 2005. w.e.I. 30-8-2005. fOTthe followmg:-
."(1) The prescrlbed authority shall, as soon as may be. after the election of members. call a meeting of the elected members of Zila Panchayat for electing president and Vice-President."
Ins. by MP 43 of 1997 [5-12-1997J. "
Sub. for the word "one-third" by M.P. Act 18 of 2007 [25-5+2007]. Constitutional validity of provisions as to reservations of con~ stituencies.-Election for posts of Panch, Sarpanch, members of Janpad Panchayats. Provision as t.f) reservations of constituencies for -Scheduled Castes/Scheduled Trib2s and special provisions for election of not less than one-third of the total number of seats reserved for women candidates belonging to Scheduled Castes/Scheduled Tribes and Other Backward Clas- ses not ultra vires ofArts. 14, 15 and 16 ofthe Constitution. Ramlal v. State of M.P., 1998 (1) MPLJ 192.
, ,
5
6
3[31. x x xl
"32. Electl"n of ,President' and Vlc'e-Presiden t.,_,4[(nAiler every' '_'. c, , Election of Panchayats the State Election commission shall immedi- ately hold the Elections of President and Vice President of Zila Panchayats, in such manner as may be prescribed.]
(2) (I)Offices of President shall be reserved for-
(a) the Scheduled Castes; and
(b) the Scheduled Tribes, and the number of offices of President reserved for the Scheduled Castes and Scheduled Tribes 5[including the number of offices of , President reserVed for the Scneditlea Tribes In th,,'SChedu1ed' Areas under Chapter XN-A] shall bear as nearly as may be, the same proportion to the total number of such offices in the, State as the population of Scheduled Castes or. as the case-may be, the Scheduled .' '"'flibes bears to the total population of the State:
Q/ ,', Pr~ded that not less thari°[half] of the total number of offices of President of Zila Panchayat shall be reserVed for women:
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86
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(PA)66
PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI" 1993
8.30
, 30. Division of District into constituencies.-(l) Subject to the provisions of sub-section (2), the State Government shall by notifica- tion divide a district into such number of constituencies that each constituency shall have as far as practicable. a population of fifty thousand and every constituency shall be a single member constituen- cy:
Provided that where the population of a District is less than five lacs. it shall be divided into not less than ten constituencies and the population of each constituency shall as far as practicable. be the
same in each constituency:
Provided further that the total number of constituencies shall not exceed thirty five.
(2) The ratio between the population of the territorial area of the
Zila Panchayat and number of constituencies in such Zila Panchayat
area, shall. as far as practicable. be the same throughout the State.
(3) (i)Seats shall be reserved for-
(a) the Scheduled Castes; and
(b) the Scheduled Tribes. in everyZlla Panchayat and the number of seats so reserved shall bear. as nearly as may be. the same proportion to the total number of seats to be filled by,direct election in theZlla Panchayat as the population of the Scheduled Castes or the Scheduled Tribes In that zlii Panchayat area bears to the total population of that area and such seats may be allotted by the prescribed authority l[x x x) to different constituencies in that Zlla Panchayat in the prescribed manner:
2[Provided that for the purpose of computing the number of seats to be reserved for Scheduled TrIbes in the Zlla Panchayat. other than the Scheduled Areas forming part of that district. the total population of the Scheduled Areas falllng within that district and the population of Scheduled Tribes therein shall be excluded.)
(il)In the Zlla Panchayat where fifty per cent or less 'than filly-per- cent seats have been reserved both for Scheduled Castes and Scheduled TrIbes, twenty five per cent seats of the total number of seats shall be reserved for other Backward Classes and such seats shall be allotted by rotation to different constituencies by the Collector, in the prescribed manner.
--------14i Not less than 3[hall] of the total number of seats so reserved shall be reserved, for women belonging to the Scheduled Castes or, the Scheduled TrIbes or other Backward' Classes, as the case may be. (5)Not less than 4[hall] (Including the number of seats reserved for women belonging to Scheduled Castes. Scheduled TrIbes and other Backward Classes) of the total number of seats to be filled by direct
1 Words "by rotation" omitted by M.P.Act 5 of 1999 (5-4-1999].
2 Added by MP 43 of 199715-12-1997J.
3 Sub. for the word ~one-third" by M.P. Act 18 of 2007 (25-5-2007).
4, Sub. for the word "one-third" by M.P. Act 18 of 2007 (25-5-20071.
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29. Constitution of Zila Panchayat,-(l) Every ZiJa Panchayat shall consist of t1:e following:-
(I) Memb•.: elected' from the constituencies; 1[(11)x x x]
(III) All men Ii "'rs of Lok Sabha representing parliamentary con- stituen •.i<', which wr.olly or partly from part of dlstrtct; (Iv) All MemiJ'Ts of Rajya Sabha returned from the State of Madhya Pradesh whose name appears In the list of voters of a Gram Panchayat area within the...dis(rict;
(v) All members of the State Legislative &sembly returned from the dlstrtct:
Provided that the members of Lok babha and Members of State Legislative Assembly whose constituenCies wholly .falls within the urban area shall not be the members of the ZiJa Panchayat.
2[Provided further that a member of the State Legislative Assembly or a member of Parliament who is a member of the Zila Panchayat. may nominate his representative, who pos-
sesses. such qualifications -as may be prescribed in this
behalf, to attend the meeting of the ZiJa Panchayat If he is unable to do so owing to absence, illness or any other cause.]
3((vi),All Chatr-Pl'rsons of-Janpad Panchayats f,nhe disfrlct:'~. '.. - Provided that Chair-person of Janpad Panchayat who Is a member under this clause shall not be a member of the committees under Section 47.1
4[(2) and (3)x x x]
5[(4) If any constituency falls to elect a member, fresh election proceedings shall be commenced In such constituency within six months to fill the seat: .
. Provided that further proceedings of election of President and Vice-President of. Zila .Panchayat- shall not- be stayed pending the. .election of a member in accordance with this sub-section:
. Provided further that if such constituency again falls to elect a member, fresh election proceedings shall not be commenced in such constituency unless the State Election Commission is satisfied that there is likelihood of such constituency electing a member,] Rules:~ The State Government has made.the followingrules in exercise of the powers conferred by this section. These Rules shall be found under
Rules given separately, ' - ::J?ANCHAYAT .MEMBERS-rNOMINA'I'IO},;-oF REPRESENTATNE) RULES, 1997"
i Omitted by M.P. 26 of Ui94 -'30'.5:94).
2 Ins. byMP 20f 1997 [7-1-1997).
3 Ins. by MP 2 of 1997 [7-1-1997).
4 Sub-sections (2) and (3); Omitted by M.P. 26 of 1994130.5.94).
5 Subs. by M.P. 26 of '994 [30.5.941. e of
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S,29 PANCI/AY.'''' \./ AVAM GRAM SWARAJ ADHI., 1993
(PA)65
88
COMMENTARY
1 Sub. for the words "one~year" by M,P. Act 18 of 2007 [25~5-20071.
2 Ins. by MP 2 of 199717-1-19971. See detailed comments under SAO.
1. Issue of no-confidence motion notice.':The issue of notice of meeting of a 11,0 confidence motion 'must he issued by the Collector, who is the prescribed authority and not by the Chief Executive Officer of the Janpad Panchayat. But such a notice can be served by him. Mohanalal Marco v. Additional Commissioner, 2004 (4) MPLJ 461=2004 (4) MPHT
59.
- -- ~ i
t
8.28 PANCHAYATRAJAVAMGRAMSWARAJ ADHI.,1993
2. Bias of Presiding Officer.-A no confidence motion was carried againstthe Vice-President ofJanpad Panchayat. It was set aside in appeal on the question of bias of Presiding Officer. Bias which was irregular. or contrary to law not reflected in conducting the meeting ofno-confidence.The order declaring the motion ofno confidenceto be illegal or vitiated quashed. Molwnsingh v. Ratan Singh, 2003 0) MPLJ 589=2003 (2) JLJ 327.
3. Requirement.-[I] Ina meeting called for discussing a no-confidence motion against Vice,President ofJanpad Panchayat, the petitioner did not request the presiding officer for allowing him to speak in his defence, though he was present in the meeting. It cannot be said that he was not allowed to speak. The provisions ofsub-section (2) donot required the presiding officer to ask the petitioner to speak. Shivaji Rao Patil v. CollectorBalaghat, 2002
(4) MPLJ 240=2002 (3) MPHT 175. . . .- . [2J Application for bringing motion of no confidence against President ofJanpad Panchayat. The secretary did not mention the hour at which the application was received. Held it is not fata!' Ramprasad Mavai v. Had Singh Tomar, 2002 (2) JLJ 53=2001 (4) MPHT 364.
4. Prescribed Authority.-The members of Janpad Panchayat sub- mitted a No Confidence Motion to the Add!. Collector who convened the meeting ofJanpad Panchayat and Petitioner challenged the legality of the order to convene meeting. Held that the Collector alone ought to have exercised the power under S. 28(2) of the Adhiniyam and not the Add!. Collector. The initiative taken by the Add!.Collector is, therefore liable to be condemned as the one without authority oflaw and in violation ofthe mandatory provision of S. 28(2) of the Adhiniyam.Ayodhya v. State of C.G... and Shankar Prasad v. State of C.G., 2006(2) CGLJ 247.
(iii) I[six months] from the date on which previous motion of no confidence was rejected.
2((4) If the President or the ViCe-President, as the case may be. desires to. challenge the validity of the motion carried out under sub-section (1). he shall. within ten days from the date on which such motion was carried, refer the dispute to the Commissioner, 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.]
(PA)64
. .
89
8.28
•
PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., [993, (PA)63
;
1
I
27. First meeting and term of office.-(l) First meeting of the Janpad Panchayat shall be held within 30 days of the date of publica- tion under Section 26. Such meeting shall be convened by prescribed ; authority and provisions of Section 44 regarding meeting, as far as may be, shall apply in respect of the sald meeting.
(2) Unless otherwise provided in the Act the office bearers of Janpad Panchayat shall hold office for five years from the date of the first meeting and no longer:
I[Provided that notwithstanding anything contained In lhls sub- section an officebearer ofJanpad Panchayat shall cease to hold office
. forthwith on his ceasing to be a voter of a Gram Panchayat area within the Block].
(3) If before the expiry of the perIod prescribed in sub-section (2) the J anpad Panchayat is not newly constituted, it shall stand dis- solved on the expiry of the said period and the provisions of Section 87 shall apply thereto for a period not exceeding six months within which the Janpad Panchayat shall be reconstituted in accordance with the provisions of this Act.
28. No-confidence motion against President or Vice-Presi- dent.-( 1) On a motion of no confidence being passed by Janpad Panchayat b~ resolution passed by a majority of not less than three fourth of th" [electedmembers] present and votinl:\and sU9chmajoxityc . is more than two-third of the total number of [elected members] . constituting the Janpad Panchayat for the time being; the President or the Vice-President against whom such resolution is passed shall cease to hold office forthwith.
(2) Notwithstanding anythtng contained in this Act or the Rules made thereunder, a president or a vice-president shall not preside over a meeting in which amotion ofno-confidence is discussed against him. Such meeting shall be convened in such manner as may be prescribed and shall be presided over by an officer of the Government as the. . prescribed authorlijmay appotnt. The President or the vice-President; . as the case may be, shall have a right to speak at or otherwise to take part in the proceeding of the meeting.
(3) No-confidence motloi,'shall not Ire against the PresIdent "r Vice-President within a period 0[- .
(I) 4[twoand half year] from the date onwhich the President'.or Vice- President enter their respective oIflce; (il) six months preceding the date on).vhich the term ofomce of .the Presidehtdr Vice-President, as the case may be, expires; 1 _ Subs ..by M.P. 26 of 1994 130.5.941.
2 Subs. by M.P. 32 of 1994-[7.10.94] for Ill(' wonl Mmember",
3 Subs. by M.P. 32 of 199417.10.941.for Ille \\'\)1"(1 Mmember".
4 Sub. for the words "one.year" by M,P. A<'l']-Hof.?9P7 (25-5-20071.
,
;
90
COMMENTARY
1 Sub. for the word "one- third". by M.P. Ad 18 of 2007 (25'-5-2007J. -2 Subs. by M.P. 26 of 199413.0.5.941.
,
il 'j
I
, ,
1
I
I
8.26PANCHAYAT RAJ AVAM GRAM SWARAJ ADHl., 1993(PAj62
. .
Procedure,- Applicationfiledunder sub-section(5).Respondent pray- , ing to adduce evidence.Argumentsheard onthe application.Maio petition cannot be decidedwithout decidingfirst the application under sub-sectian .(5).Manjula v: Collector Jhabua, 1997 (I) MPWN 24.
26. Publication of names of members, ,President and, Vice- President.-The names .ofthe members. President-and Vice-President .ofJanpad Panchayat shall be published by the prescribed autharlty in such manner as may be prescribed.
district. the tatal papulatian .ofthe Scheduled Areas falling within the district and the papulatian' .of.Scheduled,Tribes therein shauld be excluded:} '.
Pravided further that nat I~ss' than 1(halfl .ofthe tatal number .of .offices.ofPresident .ofJanpad Parichayat subject ta a minimum .ofone shall be reserved far wamen:
J
' Pravided alsa that the .officesunder this sectian shall be reserved by the prescribed ,autharity in the Janpad, Panchayat within the , "distrlct by ratatian in the prescribed manner: ' '
. . . - . < Pravided alsa. that Janpad Panchayats where there is na reserva- tian .ofseats far the Scheduled'Castes .orScheduled TrIbes as the case, may be. shall be excluded far reserVatian .of.offices.ofPresident belang- ing ta'such castes .or.such \ribes. as the case may be. (li)Where the tatal populatian .ofScheduled Castes and Scheduled Tribes in the district is less than fifty per cent twenty five percent .of seats .ofPresident .ofJanpad'Panchayats within the district shall be reserved for ather backward classes. ,
2(3) Subject ta the praviSianS .of sub-sectians (2)' and (4) the
. President and Vice-President .ofthe Janpad Panchayat shall be elected by arid fram amangst the electeQmembyrs th"I"('al.]
(4) If the Pre~;d~ntaf Jal1pad Panchayal does not belollg to tlie •.,. Scheduled Castes. Scheduled Tribes .or athlT n"ckward Classes the Vice-President shall be elected from amongstthc members belanging to -such castes or, tribes or classes.
(5) If a President or Vice-Prestdent of Janpad Panchayat became a member of either hause .of Parliament .or a member .of the State Legislative Assembly .ora Chalrman .orVice-Chairman .ofCa- .operative Saciety. he shall be deemed ta have vacated his .officeas President .or Vice-President as the case may be. with effect fram the date .ofhis becaming such member .orChairman orVice-Chalrman. and a casual. vacancy shall be deemed ta have .occurred in such .officefar the purpases '.ofsectian 38.,
I
i,
I
I
, I,
I
91
•• ,.'., 8,25 • PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)61
(5) Not less than 1(half], (including the number of seats reserved for women belonging to the Scheduled Castes and Scheduled Tribes and other Backward Classes) of the total number of seats'to be filled by direct election in every Janpad Panchayat shall be reserved for women and such seats may be allotted b~ the prescribed authority by drawing lots and by rotation to different [constituencies] in a..Janpad Panchayat in the prescribed manner.
3(xx x]
4((6) The constituencies which have no population of Scheduled Castes, Scheduled Tribes or Other Backward Classes shall be excluded for allotment of seats reserved for Scheduled Castes or Scheduled Tribes or Other Backward Classes, as the case may be.]
COMMENTARY
Non-reservation of seats for Scheduled Castes and Scheduled Tribes cannot be challenged at a late stage. It would cause public inconvenience and burden to public exchequer if granted at such a stage. Sunckr Adivasi
v. State of M.P., 1995 (I) MPWN 71. . 5(24. x x.x]
25. Election of President and Vice-President of Janpad Panchayat. ~61(l)'Afferevei-ydectfon ofPanchayatstlyeState' ElectiOn- - . , 'ommission shall immediately hold the elections of President and Vice (,esident of Janpad Panchayats, in such manner as may be prescribed.j
(2) (I) Office of President ofJ anpad Panchayat shall be reserve,1 for-
(a) the Scheduled Castes; and
(b) the Scheduled Tribes, and the number of offices of President reserved for the Scheduled Castes and the Scheduled Tribes in the district shall bear as nearly as may be, the same proJ:JOrtiontothetotalnumt;erof such o£ficesin.t he disirict as the population of the Scheduled Casies or the Schedu led Tribes, as the case may be, bears to the total popuiation of the disiIict:
7(Provided that for the purpose of computing the number of offices of President of Janpad Panchayat to be reserved for Scheduled Tribes in the district other than the Scheduled Areas forming part of thai \
I,
. I
I
. '
7
Sub. for the word "one-third" by M.P. Act 18 of 2007 [25~5-20071. Subs. by M.P. 26 of 191)4 130.5.94). \
Provls,?o_m1tt~dby M.P.Act 9.of 1999J5-,4-1e:991.~••..••~" .- "'.. ,. ~"I'-' ~~~__~~- -.-__~.-._ Ins. by M.P.Act 5 of 199915-4-1999),
Omitted by M,P, 26 of 1994 130,5.94] .
. -Subs. by M.P. 'Act 20 'of 2005. w.e:!. 30-8-2005 for the followtng:-
"(1) The Prescribed Authority shall. as soon as may be, after the election octhe members call a meeting of the elected members of the Janpad Panchayat for electing a Presiden l and a Vice-President,"
Ins. by MP 43 of 199715-12-1997).
92
(PA)60 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993
8.23
,I
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1
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,
'ii
I
I
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,
i,
"
• constituency has a.s far as practicable a population of five thousand and every constituency shall be a single member constituency:
Provided that where the population of a Block Is less than fifty thousand It shall be divided Into not less than ten constituencies and the population of each constituency shall as far as practicable be the same In each constituency:
Provided further that the total number of constituencies In a block shall not exceed twenty-five.
(2) The ratio between the population of the territorial area of a Janpad Panchayat and the number of constituencies In such Janpad Panchayat shall,: so far as practicable, be the same throughout the State.
(3) (i)Seats shall be reserved for-
(a) the Scheduled Castes: and, (bl the Scheduled Tribes, in every Janpad Panchayat and the number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election In that J anpad Panchayat as the population of the Scheduled Castes In that Janpad Panchayat area or the Scheduled. Tribes in that Janpad Panchayat area bears to thet()tal population of that area and such seats' m~y bc allotted by the prescribed authority I(x x xl to different 2[constltuencles] in that J anpad Panchayat In the prescribed manner:
3[Provlded that for the purpose of computing the number of seats to be reserved for Scheduled Tribes In the Janpad Panchayat, other than the Scheduled Areas forming part of that Janpad Panchayat area, the total population of the Scheduled Areas falling within that Janpad Panchayat and the population of Scheduled Tribes therein shall be excluded.] ..... ~-
(iI)-In the Janpad Panchayat where fifty per cent or less than fifty"
per cent seats have been reserved both for the Scheduled Castes and Scheduled Tribes twenty fiveper cent seats of the total number of seats shall be reserved for other Backward Classes and such seats shall be allotted by rotation to different constituencies by the Collector In the
prescrtbed manner.
(4)Not less than 4(half]of the total number of seats reserved under sub-section (3) shall bereserved forwomen belooglng to the Scheduled Castes or, the Scheduled Tribes, or other Backward Classes, as thc case maybe.
1 Omitted by M.P.Act 5 of 1999 [5-4-19991.
2 Subs. by M.P.26of1994[30.5.94].
3 Added byMP43of199715-12-1997].
4 Sub. for the word "one-third" by M.P. Act 18 of 2007 (25-5-2007J.
I
,
93
. - •
8.23 PANCHAYAT RAJ AVAM GRAM SWARAJAIJHI., 1998 (PA)59
,
~. Dr to ~s. ,, n.
2.
.
~:
22. Composition of Janpad Panchayat.-(l). Every Janpad Panchayat shall consist of the following:-
(I) Members elected from the constituerlcles; 1[(ll) x x xl
(!Il) Allmembers of the State LegislativeAssembly returned from the constituencies which wholly or partly fall within the block:
Provided that a member of the State LegislativeAssemb- ly whose constituency wholly falls \vlthln an urban area shall not be a member of the said Janpad Panchayat: .
. ~Provlded further that a Member of the State legislative Assembly who Is a member of the Janpad Panchayat. may
nominate his representative, who possesses such qualifica-
tions as may be prescnbed In this behalf, to attend the meeting of the Janpad Panchayat if he is unable to do so
owing to absence, illness. or any.other cause.}
3[(iv) One-fifth of the Sarpanchas in the terrltonal area of the \ Janpad Panchayat by rotation for a period of one year as the prescribed authority may r1etermlneby drawing lots: . Provided that a Sarpanch who is a member under this clause for one term shall not be ellgible to become a member for another term:
Provided further that a Sarpanch who is member under this clause shall not be a member of the committees under Section 47.]. 4[(2), (3), (4), (5) and (6)x x xl .
5[(7) If any constituency fails to eiect a member. fresh election
proceedings shall be commenced in such constituency within six
'months to fill the seat: . Provided that further proceedings of election of President and Vice-President of Janpad Panchayat shall not be stayed pending the
'election of a member in accordance with this sub-section:
Provided further that If any constituency again falls to elecl a member fresh election proceedings shall. not be commenced In such. constituency unless the State Election Commission is satisfied that Ihere is llkellhood of the constituency electing a member].
. Rules:- TheState Governmenthas madethe followingrules in exercise of the powersconferredby this sectlon.These Rules shalfbe found under Rules givenseparately.
"PANCHAYAT MEMBERS (NOMINATION OFREPRESENTATNE) RULES, 1997"
23. Division of block Into constl(uencles.-(l) Subject to the .provlslonsof.sub~section. (2),.the State Government shall by notifica- tion divide a block Into such number of constituencies that each
1 Omitted by M.P~26 of 1994130.5.941.
2 Ins. by MP 2 of 1997 [7-1-19971.
3 Ins. by MP 2 of 1997 [7-1-1997].
4 Sub-sections (2) to (6). omitted by M.P.26 of 199413~.5.941.
5 Subs: by M.P. 26 of 1994 130.5.941.
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COMMENTARY
PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 S.21-A I Ins. by M.P.Act 5 of 1999 (5-4-1999 J. ---------------------~---
. Recalling of Sarpanch.-Signature ofm~mbers signing the prayer for recalling ofSarpanch .by.wempersofGr~mSa?ha cannot he enquired into since no procedure for the same is presc~J;>e.deIther py th~ Act or the rules. Prima facie satisfac.tipll of Jhe Sub-DIVIsIOnalOfficer IS sine qua non. Hariyare v. State of M.P., 2004 (3) MPLJ 255.
SeeAlso:Santosh Kumar Ahirwarv. State a(M.P., 2009(3) MPLJ 442.
16. Rules:- The State Govern~ent h~s made the followingrule~ in exercise of the powers conferred on It by thIS sectI~n.These'Rules shall be found under Rules given separately. :. . .
"GRAM PANCHAYAT KE SARPANCH TATHA UP-SARPANCH JAN- PAD PANCHAYAT TATHA ZILLA pANCHAYAT KE PRESIDENT TATVA - VIC;E-PRESIDENT KE VIRUDH AVISHWAS PRASTAV NIYAM, 1994," 1121-A. Recalling of office bearers of Gram Panchayat._(l) Every Sm-panch .of a Gram Panchayat shall forthwith be deemed to have . vacate,:!his officeIfhe Is recalled through a secret ballot by a majority of more than half of the total number of the memgers Constituting the Gram Sabha within the Gram Panchayat In accordance with the procedure, as may be prescribed: . I
/ Provided that no such process of recall shall be Initiated unless a notice is signed by not less than one-third of the total number of members of the Gram Sabha and presented to the prescribed authority:
Provided further that no such process shall be lnitiated._
(i) within a period of two and a half years froro the date on which such Sarpanch elected at the General Election enters his office: or
'(Ii) If hillf of the period of tenure of the Sarpanch elected in a bye-election has not expired.
(2)Every panch of a Gram panchayat shall forthwith be deemed to have vacated his office If he is recalled through a seCret ballot by a majority ofmore than half of the total number ofme~bers of the Gram Sabha constituting the ward fromwhIch the Panch ISelected. (3)The provisions of sub-section (I) shall apply mutatis mutandis in relation to recall of a Panch,
(4) If such Sarpanch or panch. as the ca~e may be. desires to challenge the validity of recalling him under the foregOing sub- sec- tions he shall within seven days from the date on whiCh he is deemed to have vacated the office. refer dispute to the Collector who shall decide it. as far as possible. wlthln.30 days from the date on which It was received by him. and his deciSIOnshall be final.) ,
(PA)58
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8.21 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)57
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cannot be moved in the following circumstances::-
(1) within one year of the Sarpanch or Up-Sarpanch, as the case may be, assuming office; ,
(2) before six months of the expiry of their term Of offi~e. Suppose the term of office of a Sarpanch or Up,Sarpanch, as the case may be, is going to expire on 20th December, nO no- confidence motion would lie against any of them between 21st of June and 21 of December; and
(3) In a case where a no no-confidence motion was presented against a Sarpanch or Up-Sarpanch. as the case may be, and it was rejected, meaning thereby that members did not vote in its favour in sufficient number, then from the date of rejection of such motion, no new motion of no-confidence shall be allowed to be presented till the expiry of one year [4) Where the previous motion of no-confidence was set aside on the gro~nd that it was carried in an illegal man-ner, it does not amount to rejection of no-confidence motion. Therefore, the bar under sub-section (3) against bringing another motion within one year does not apply to such a situation. Kandhilal Patel u. State of M.P., 1999 (2) JLJ 109.
[5] Sub-section (3Hii)-Bar against motion-Applicability.-Where motion of no-confidence against Sarpanch was moved before six months from the expiry of the term of Gram Panchayat but the Sarpanch got stay from the Collector by filing a revision. The Collector ultimately rejected the revision and then the meeting for discussing the motion was called.' But it was within six months of the expiry of the term. The SarPanch cannoHake henefit of this provision. Raja I'llm Patel u. State of M.P., 2002 (5) MPLJ 513=2002 (1) JLJ 41.
15. Writ petition.-[I] Application for moving no confidence motion filed. No interference can be madl' under writ jurisdiction. The petitioner after passing of resolution can seek remedy under sub- section (4). Kushma Sharma u. State of M.P., 1998 (1)MPWN 92.
[2] Availability of an alternative remedy is not always an absolute bar for maintainability of writ petition. When the impugned order is illegal, a writ petition is maintainable. Prabhu Dayal Patel u. State of M.P., 2003 (5) MPHT 502=2003 (2) MPLJ 29=2003 (2)JLJ 182 (DB).
[3] Direct writ petition-not justified .-Direct writ petition not main- tainable when alternative remedy of revision under Rule 5 of M.P. Panchayat (Appeal and Revision) Rules, 1995 is available. Ramesh Soni u. State of M.P., 2008 (1) MPLJ 207.
[4] Direct writ petition why justified,.-Despite-alternative remedy a writ petition may be preferred directly :-
(i) where the Court or the Tribunal lacks i1lherentjurisdiction; or
(ii) when a writ is for enforcement of fundamental rights; or
(iii) there is a violation of principal of l1/?tural just~ce ; or -. ." - - '~- < - ~ -... -. • • -
(iv) where vires of the Act is in question. The mandatory extent of the provision could b~ relaxed only if it could be shown that no prejudice was caused to the party complaining. Ramesh Soni u. State afM.P., 2008 (1) MPLJ 207.
96
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8.21 PANCHAYATRAJAVAMGRAMSWARAJADHI.,1993
12. Appeal and revision.-[l] Where a motion ofno confidrnce is passed or failed, no appeal or revision lies against it, since it is neit~er al). order nor any proceeding in any pending case. 1998 (2) JLJ 267 Relied on. Ramnath Kaushik v. State ofM.P., 1999 (1) JLJ 146.
[2] An order passed by the Collector in the matter of resolutlon of no confidence is final. No appeal lies against his order. But revision by Com-- missioner is competent. Kandhilql Patel v. State of M.P., 1999 (2) JLJ 109. [3]No appeal lies against resolution ofno confidence motion. A reference . under sub-section (4) can be made to Collector. Kandhilal Patel v. State of
M.P., 1999 (2) JLJ 109.
[4J Reference to Collector is not an appeal. The word 'dispute' as used therein mean dispute on legal as well as factual aspect. The Collector may record even evidence on factual aspect, Kandhilal Patel v. State. of M.P.,
1999 (2) JLJ 109.
[5] Resolution f<;>ror against passed in a meeting called for considering motion ofno~confidence.AppeaI or revision against not competent-Expression "carried out"- Appeal and Revision Rules of 1995, Rr. 3 and 5.-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). The expression "carried out"
" employed in the said sub-section can only mean the consequence' provided' in sub-section (1) which clearly indicates thatit is only against a motion of no 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. It is clear that an appeal under rule 3 of the Appeal and Revision Rules of1995 was not maintainable against a no-confidence motion whether carried or failed and the Additional Collector therefore had no jurisdiction to entertain the same. 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 to the regularity of proceedings before such authority. A no-confidence cannot beclassifiedeither as an order or as a proceeding. :'\0 specific power of Revision has been granted in rule 5 against a no confidl 'Ilcemotion. The no-confidence motion, not being any proceeding in a cas£>,i:::i not amenable to the jurisdiction of an authority in exercise of the power of revision granted by rule 5. 1998 (1) MPLJ 427 ReI. Ramnath Kaushik v. State of M.P., 1999 (2) MPLJ 67. .
. [6J Sub-section (4)-Revision.-Where order is passed by the Collector under sub-section (4), revision against such an qrder is maintainable before the Revisional Authority. Sadan Kumar v. Stdte of M.P., 2002 (5) MPLJ 28=2003 (2) JLJ 54=2002 (2)MPHT 257. But no appeal lies against such an order. See Premlata Jaiswal v. State of M.P., 2002 (5) MPLJ 522.
13. Improper setting aside of no-confidence motion.- The Addi- tional Collector set aside the no confidence motion passed without notice being served on the respondents. Order set aside. 'Hemraj v. Smt. Sumran,
2005 (1) MPHT 10 NOC.
14. Bar against another motion and its applicability.-Vide sub- section (3), a no-confidence motion against the Sarpanch or Up- Sarpanch ';
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of M.P., 1997 (2) MPLJ 175.
10. Dispute- No confidence motion- Filing of dispute under sub- section (4) before Collectdr.-[l] Extension of time- Although there is no express provision in sub-section (4) to extend time for filing dispute before the Collector after expiry of7 days, there is no express bar againstgi'anting such an extension of time. High Court granted extension and allowed the writ petitioner to file dispute before the collector within seven days. Jagdish Prasad Soni v; State of M.P., 1999 (1) MPLJ SN 19.
'[2] Sub-section (4) has been added by MP Act 2 of 1997 which has come into force 7-1-1997 hence, where no confidence motion has been passed after 7-1-1997, dispute in its respect should be referred to Collector. Kamla v. Sub.DivisionaIOfficer, 1997 (II) MPWN 153.
[31 The Collector has no inherent power to extend time for presenting of a dispute under sub-section (4). But under the provisions of the Limitation Act, 1963, he can admit a dispute if he is satisfied that the applicant had sufficient reasons for not presenting the same within the time prescribed or that the applicant was prevented for sufficient reasons from filing the dispute within seven days of its passing by the Gram Panchayat.
[4] Threat or undue pressure ..It requires an oral evidence to estab- lish that any kind of oral threat was executed to a particular Panch. Such , fact could have been proved only in a dispute referable under S.21(4) of the Act. Santosh Kumar Singh v. State of M.P., 2008 (2) MPLJ 205 = 2008(1)
MPHT383.
lO.A.' Expression of intention not proved.-A voter was required to cast his vote in favour of no confidence motion by putting the symbol of right mark and against it by putting a symbol of cross mark (x). One disputed ballot paper is liable to reject for the reason that ,everse mark of right 'symbol was put on the blank back side. Held, it will not convey any intention in specific of the voter and the same cannot be treated as a expression of intention within the meaning of election laws. Such ballot paper rightly rejected. Sunita Patel v. Collector, 2008 (3) MPLJ 248 = 2008(1) MPHT 302 = 2008(2) JLJ 26 = AIR 2008 (NOC) 802 MP.
10-B. Nirvachan Niyam, 1995 are applicable.-M.P. Nirvachan Niyam, 1995 are quite exhaustive and they would also cover the meetIngs, 'of no confidence \vith regard to various things for which no provision has been made in the M.P. Panchayat (Gram Panchayat Ke Sarpanch Tatha Up-Sarpanch .. , . Avishwas Prastav) Niyam, 1994. l1lustratively, Chap. x
. of Nirvachan Niyam provides for countiqg of votes for which no specific
. provision made in Avishwas Prastav Niyam and although counting is required to be made even in the meeting for,no confidence. 8unita Patel v. .__~FE![,~QQ.l:!J~tM!,J,.J .~1.!L::_2.908(1)MPHT302 = 2008(2) JLJ 26 = AI ••.2008 (NOC) 802 MP.
11. -Right of- reply and leading of evidence.- Where there was a ~ 'dispute as to date of service of notice of no-confidence motion, it could not be decided without leading evidence. The party aggrieved should be given right of reply and opportunity to lead evidence. Kandhilal Patel v. State of M.P., 1999 (2) JLJ 109. '
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Sarpanch or Up-Sarpanch as the case may be, the incumbent of the office shall cease to hold office forthwith, that is to say, with immediate effect. "
That prescription is not a limitation on the power of the District Collector to pass appropriate interi"m order when a reference envisaged ufs. 21(4) of the Adhiniyam is made by the Sarpanch or Up-Sarpanch as the case may be for his decision. Smt. Basanti Chandra v.Nand Ram, 2006(1) CGLJ 486.
[4] Effect of non-compliance of second part of sub-rule (3) of rule 3.-The motion of no-confidence is to be moved and passed by the requisite majority is the substance of the provisions of this section and the relevant 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) or the High Courtin,exercise orits superVisory jurisdiction under Art.227 of the Constitution comes to the conclusion that such non-compliance has caused serious prejudice to the affected office bearer or has otherwise resulted in failure of justice. 1998 (2) MPLJ 661, 1997 (2) JLJ 397 Approved, 1998 (1) JLJ 124 & 1998 (1) JLJ 399 held not contrary, 1997 (l) Vidhi Bhaswar held right, 1971 JLJ 286 (DB) Overruled. Bhulin Dewangan v. State of M.P., 2000 (4) MPHT 69=2000 (2) JLJ 253
(FB).
[5] Sub-section (1) further says that the Sarpanch or Up-Sarpanch .against whom such amotion is passed shall cease to hold office forthwith . . 8-A. Validity of No-confidence Motion.-ln accordance ofS.21(3), if the previous motion of no-confidence was rejected, then within six months .another no. confidence motion could not be considered. In this case, no-con- fidence motion was not taken into consideration by the members of the Gram Panchayat, for which, the date was fixed by the S.D.O. and that order of S.D.a. was quashed by the Collector exerciSIng revisional power on the ground that seven days' time was not granted to the members ofthe Gram Panchayat for consideration of no-confidence motion in accordance with Rule 3(3) of the M.P. Panchayat (Gram Panchayat Ke Sarpanch Tatha Up-Sarpanch, Janpad Panchayat Tatha Zila Panchayat KePresident Tatha Vice President Ke Virudh Avishwas Prastau) Niyam, 1994. When the date of convening the meeting in accordance with Rules for consideration of no- confidence motion was held not to be proper, then subsequently, the SDO has fixed the date of another meeting vide fresh order, and the said order is in accordance with law and in accordance with Rules of 1994. Munni Devi
v. State of M.P., 2013(2) MPWN 15.
9. Prescribed Authority iudng date of meeting beyond 15 days- Motion of no-confidence passed cannot be held invalid.-Although the date of meeting fixed by the Prescribed Authority was beyond 15 days from the date of receipt of notice still, the motion of no-confidence passed cannot be held invalid for the reason that the will of members in relation to the no- confidence motion cannot be defeated On account of inaction or delayed .action of the Prescribed Authority. But it was observed that in case th6 meeting is not held within 15 days, the members have the right to approach the High Court for its compliance and this judgment should not be held to have authorised the Prescribed Authority to fIx date of meeting for con- sideration of no-confidence motion beyond 15 days. Dhumadandhin v.State
99
[2] Sub-rule (4) of Rule 5 of M.P. Panchayat (Gram Panchayat ke Sarpanch tatha Up-Sarpanch .... Ke Virudh Avishwas Prastav) Niyam, 1994 laid down the procedure as follows :-
"(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".
[31See also:
(a) Comments under Rule 5 of aforesaid Rules;
(b) Santosh Kumar Singh v. State ofM.P., 2008 (2) MPLJ 205 = 2008(1) MPHT383;
•(c) Sukhanandan Patel v. State of M.P., 2003(1) MPLJ220 = 2003(2) JLJ74;
(d) Nagsai v. State of M.P., AIR 1998 MP 81.
7. Total number of panchas.-Total number of panchas constituting the Gram Panchayat for the time being would mean that number of panch as which at the relevant time are members of Gram Panchayat. In order to find out this number, one should include the Sarpanch and the Up-Sarpanch also. Rambhilash Patel v. State of M.P., 2003 (1) MPLJ 238.
8. Passing of no confidence motion.-[l] Meeting called for consider- ing a no confidence motion adjourned in absence of Presiding Officer. Motion passed in the adjoumed meeting. Motion is valid. Benefit under sub-section , (3)(ii;) not available. Mahaveer Saket v. Collector, Rewa, 1998 (2) JLJ 113. , [2] Cessation, of office~, .Ge.s,satioQ,oCoffice"by the"SarpaQch'"aftecc" .... passing of no confidence motion against him is automatic. No stay can be graQted in this respect.Kaushalya v. Additional Collector, 1998 (I) MPWN
236.
[3J Effect of no-confidence resolution.-In the instant case the Sar- panch was suspended and the Up-Sarpanch was appointed as Prabhari Sarpanch. No confidence motion moved against Prabhari Sarpanch. Motion not moved against petitioner as Up-Sarpanch, therefore, no-confidence motion was not passed against petitiolll'r as Up-Sarpanch. Jagdish Prasad Soni v. State of M.P., 1999 MPLJ NOC 8.
13A]Not validly passed.-DisllUtea ballot paper was liable to reject hence no confidence motion was not validly passed for want of requisite strength i.e. 3/4th. Sunita Patel v. (',,/lector, 2008 (3) MPLJ 248 = 2008(1) MPHT 302 = 2008(2) JLJ 26 = AlH 2008 (NOC) 802 MP.
13B] Resolution was passed by the majority - No confidence
motion cannot be declared as null & void.-No prejudice has been pointed out by the SarpanchlResp. NO.1 in any manner and the resolution was passed by overwhelming majority, Le. 16 out of 21 in favour of the no - clll1fidente, rootion' and said officet wascoIi\petent to preside over the ,peeting.,The Resp. No. 1 has also notraised this objection of incompetence of the Presiding Officer during the no confidence motion. The Collector's oroer is, set .aside and the resolution passed in meeting be .given full effect to. 2003(5) MPHT 502 (DB), Relied on. Ghanshyam Yadav v. Rameshwar Sahu, 2007(1) MPHT 86 (C.G.).
[3C] No Stay.-It is true that in terms of the Sub-Section (1) of Section 21 of Adhiniyam once 'No Confidence Motion' is carried out against a .'
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6, Principle of natural justice to be followcd.-[l] Sub-secrion (2) further speaks that a Sarpanch or Up-Sarpanch shall not preside over a meeting in which a motion of no-confidence is to be discussed against him. Generally a meeting of Gram Panchayat is presided over by a Sarpanch aRd in his absence, the Up- Sarpanch presides such a meeting. In a case where the motion of no-confidence is to be discussed against either the Sarpanch or the Up-Sarpanch, leaving aside the one against whom the motion is to be discussed, whether the other person namely, the Sarpanch or Up-Sarpanch against whom there is no motion of no-confidence, can preside the meeting or not. The answer would be 'N0'. Ameeting called for considering a motion of no-confidence is a special meeting and sub-section (2) says that it will be convened in such manner as may be prescribed, i.e. as per rules and shall be presided over by an officer ofthe Government as the prescribed authority may appoint. Looking to this provision, the normal procedure would not apply and the meeting shall be presided over by an officer of the Government only and ]wither by a Sarpanch or Up-Sarpanch.
l2] Since the passing of no-confidence motion results in adverse conse- quence of the Sarpanch or Up-Sarpanch vacating the elected office, the law incorporates the principle of natural justice that the office bearer concerned
. should have an opportunity to participate in the motion and to speak and take part in the proceedings so as to regain' the confidence .of the House. Bhulin Dewangan v. State of M.P., 2000 (4) MPHT 69=2000 (2) JLJ 253 --
(FB).
[3JProcedure.- The Rules framed under the Act lay down a time bound procedure for ensuring proper conduct of the proceedings of the no-con- fidence motion. As passing of no-confidence motion entails serious civil consequences against the concerned office bearer sub-rule (3) of Rule 3 prescribes a time limit for calling a fill'pting for consideration of no-con- fidence motion and sending of notice in advance of the meeting to all the members ofthe Panchayat. The expression Used in the first part of the rule for fixing the date, time and place for the meeting is 'which shall not be more than 15 days from the date of receipt oftlw said notice'. 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 lI3rd 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. Bhulin Dewangan v. State of M.P., 2000 (4) MPHT 69=2000 (2) JLJ 253 (FB).
[4] Where no confidence motion was passed by requisite majority, it matters little whether opportunity to debate and discuss the motion was provided or not. Mahesh Prasad v. State of M.P., 1997 (2) JLJ 397 .. 6-A. Right to speak.-[ll Under Sub-section (2) of S.21, the Sarpanch or the Up-Sarpanch, as the case may be, shall have a right to speak in the nleeting of no-confidence motion and have a right to take part in the proceedings ofthe meeting.
..-.
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[4} Efff'l"t (\t non.service of notice of'meeting on one or few memb«-"."s.-It' tilt.". Illotion IS validly passed by the requisite majority, mere non-service of notice of meeting on one or more members would not render the passing of no-confidence motion invalid. The latter part of sub-rule (3) of rule' 3 uses the word 'shall be caused' indicating clearly that the rule is mandatory and requires due compliance. Bhulin Dewangan v, State ofM.P" 2000 (4) MPIIT 69=2000 (2) JLJ 253 (FE),
[5] Mode of service of notice,-As far as mode of service of notice, the Panchayat (Method of ServIce of notice and document) -Rules, 1995 may be referred. The different modes prescribed by rule 3 for service of notice include 'giving or tendering the notice or document to the person concerned'. In the absence of notice, giving or tendering the same to some adult member - or servant of the family, sending the same by post under certificate of posting, If the member resides beyond the jurisdiction of Pane hay at and his address is known, by sending the same to hiIii by registered post acknow- ledgment due, The Rules also prescribe the substituted mode of service. In the light of these rules prescribing various modi's of service of notice, the word 'dispatch' would'mean giving or sending for transmission the notice in the manner prescribed in the Rules of 1995 so as to reasonably ensure its service, I£the dispatch of notices is not in the mpde prescribed for its service, there would be no proper compliance of the requirement of sub-rule (3) of Rule 3 of the Rules of 1994. Bhulin Dewangan v. State of M.P., 2000 (4) MPIIT 69=2000 (2) JLJ 253 (FB),
presence, if he so desires, in the meeting to be held on such vital issue of passing of no-confidence motion. Bhulin Dewangan v. State of M.P., 2000 (-:I)MPIIT 69=2000 (2) JLJ 253 (FB).
[3] Meaning of the word 'dispatch',-The legislature has designedly used the expression 'the notice of such. meeting specifying date, time and place thereof shall be caused to be dispatched by him through the Secretary' of the Panchayat concerned. The use of the word 'dispatch' appears to be deliberate and it cannot be read as 'receipt' of the notices by members of the Panchayat. The law intends that the notice of meeting should be sent to the members concerned seven days in advance of the meeting to enable them to participate in the motion of no-confidence. The rule does not convey any intention 'that the motion of no-confidence should be taken up only after each and every member of the Panchayat has been actually served with the notice. Use of word 'dispatch' in the rule is clearly with a view that merely on non-service of notice of meeting on one or few members, the consideration of ~otion of no-.confidence should not be frustrated, as in any case the
"passing of it depends on existence of the requisite majority. . " . The word 'dispatch' should be assigned both a literal and legal meaning otherwise it is open to wicked abuse in the hands of concerned authority who may act in collusion with any oftheelected members. It is not merely sending or giving of notice of meeting in the manner best suited to the liking of the Secretary o(thePanchayat. The word is analogous to the word 'issue'. Bhulin D"I('(I/l~(mv, Stale of M.P" 200Q (4) MPIIT 69=2000 (2) JLJ 253
. (FB}, . II •
(PA)51PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., I993 8,21
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8.21PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993
provision with regard to toss of coin in case of equality of votes is already deleted by an amendment. SojiNayak v. State of M.P., 1999 (1) MPLJ 174=
1997 (2) JLJ 179.
[7] Panchayat consisted of 11 members. Motion of no confidence passed by all the eight members present in the meeting. Requisite majority ob- tained. Motion passed legally. 1975 MPW 116=1975 JLJ 386 ReI. Shree Bai
v. State of M.P., 1999 MPLJ SN 28. [8JPanchayat consisted of 11 members. All were present at the meeting called for consideration of no confidence motion. 8 votes were cast in favour of the motion while 3 wer~ against. The Presiding officer treated the figure of 8 as sufficient for the resolution of no confidence to have been passed. But the figure 8 is less than 3/4th of 11 person who were present and the requirement of law is that such a motion should be passed by not less than 3/4th of the members present and voting. Hence it is held that the motion was not passed at the meeting. Deshraj v. Gram Panchayat, 1999 (1) MPLJ
621.
(91Where 19 panchas were present at a meeting called for consideration of no confidence motion, the motion can be held to have been passed if 15, and not 14, persons vote in favour of the resolution. Motion passed by 14 panchas is not valid. Kalawati Karayat v. State of M.P., 1998 (l) MPWN
154. See alsoShaiititam v.AnuvibhagiyaAdhikari, 1997 (1) MPWN 195.
5. Notice of meeting ofno_confidence"-[IJ It is necessary for passing of a no-confidence motion that notice ofmeeting should be despatched before 7 clear days. Where no such notice was despatched, motion passed in such meeting shall not be valid. Shrinarayan Tiwari v. State of M.P., 1998 (1)
JLJ 124.
[IA] Admissibility of the Notice.- The notice was despatched on 22-8-2006 for the meeting to be held on 30-8-2006 before 7 clear days and as such, there is no :'..lfirmity in dispatch of notice. Pilaram Deewan v. State' ofC.G., 2007(2) C~LJ 280.
[IB] Rejection of Notice • Beyond Jurisdiction.- The Prescribed Authority is not empowered to enquire into the correctness of the notice received by him under Rule -3 of Avishwas Prastav Niyam, 1994. The prescribed Authority is required to satisfy only about the ~dmissibility of the notice with reference to Section 21(3) of the Adhiniyam. However, the Prescribed Authority instead of satisfying itself gone to the extent so as to hold that no useful purpose will be served-in convening the meeting. The procedure adopted and the order passed by the Prescribed Authority so as to reject the notice received by him under Rb.le 3 of the Avishwas Prastav Niyam, 1994 is beyond his jurisdiction, therefore, cannot be sustained. Ravindra Singh v. State of M.P., 2007(3) MPHT 172.
[2] Dispatch of notice of meeting.- The second part of sub-rule (3) of rule 3 mandates that the prescribed authority after fixing date, time and place of the meeting within the prescribed period not later than 15 days as laid down in the first part of the Rule, shall cause dispatch of notice of such meeting to every member of thePanchayat 7 days before the meeting. The said latter part of sub-rule (3) of Rule 3 is m"ndatory as intimation of date, time and place of meeting to e:very member is essential to ensure his
(PA)50 ,
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8.21
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PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993
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number. It may be in a fraction also, e.g. 14.25, 7.5, 13.5 and so on. One should understand the requirement in such cases properly. Whenever there is a fraction, the next full number would be the right number of votes which shall be necessary for passing ofthe resolution,.in the example quoted above the requirement would be of 15, 8 and 14 votes. It is not possible to ignore the traction of a number. This requirement is only one limb of the provision. It is with regard to the members present and voting.
[2) The second limb of the requirement is connec.ted with the total number of panch as by which a Gram Panchayat is constituted. This number would be that for which elections were held and the panc"-as were elected. . .' .Suppose there are 20 panchas elected and the Gram Panchayat lS con- stituted by these 20 p~.n.as, inclading the Sarpaneh and Up-Sarpanch.
Note that Sarpanch and Up-Sarpanch are also to be included in counting
the number of panch as for this purpose. In this example the requirement is
that the motion should be carried by more than two third of the total number
of panchas. 2/3rd of 20 shall be 13.333 .. and more than this number would
be 14 i.e. in a case where 2/3rd of a number consists of a fraction then, the
next number would be the required number. Here again, the fraction of a
number cannot be ignored.
[3] Looking to the requirements of the minimum majority required, the conclusion is that such a number would be higher one out of the two as given in paras [1] and [2] above. If the result of para [11 is the figure 15 and that of para [2lis H-then,I5 would be.the number required and in case the result of para IIlis 20 while that ofpara'[2] is 24 then, the required number\\"ould be 24.
[41Section 21, however, requires that a valid motion of no- confidence can be passed only on a motion mooted by prescribed one-third of total number of elected members :ind passed by majority of not less than 3/4th of the Panchas present and voting and such majority is more than 2/3rd oftotal number of panchas. Bhulin Dewangan v. State of M.P., 2000 (4) MPHT 69=2000 (2) JLJ 253 (FB) .
t5] The subject matter of this section is passing of a no- confidence motion against Sarpanch or Up-Sarpanch. These office bearers hold their office by election. The law requires that if they are mode to vacate their offices on loss of coufidence of the other elected members, there should be a requisite majority for passing the resolution i.e. not less than 3/4th of the Panchas present and voting and the resolution should be carried by voting of more than 2/3rd of the total number of panchas constituting the panchayat.Bhulin Dewangan v. State ofM.P:, 2000 (4) MPHT 69=2000 (2)
JLJ 253 (FB). .
I
J!ll A.lllP,t i9\'.of nO,w!!fi!!!'-I1',',agai.\!~t)?.!!lJ'W!chPJ.Up;Sarpil_llch fa.nnol be said to ha'.~been passed by toss of coin in the event where the votes fur and against the'motion being eqllSl. As a ".latter of fact a motion of no 'confidence should-be- passed by-a -majority of three-fourth of the panchas present and voting and further such majority should be more than two-third of the total number of panch as constituting the GramPanchayat. Therefore, in any case, a motion cannot be said to have. passed. where the number of votes for the motion and against the motion is found .to be equal. The I r
104
I 3. Election of Sarpanch direct bnt no-confidence motion in- direct- Section not arbitrary on this account.-[l] The Act provides for election of a Sarpanch of a Gram Panchayat directly by the members of the' Gram Sabha while a no confidence motion against such a Sarpanch can be passed by members of Gram Panchayat only under this section. On this ground itwas contended that the provisions of this section are arbitrary and are violative of Art. 14 of the Constitution. The Court held that so far as providing the method of election and motion of no-confidence being passed is concerned, it is for the State Legislature to enact the law as this areas has been left open:hy sub-clause (5) of Art.243C and the reasons appear to be that since the Gram Sabha is in the lowest in the hierarchy ofthe three tier system, the Parliament has thought it proper that the State Legislature may legislate on this aspect looking to the geographical and physical condition of the area. The State Legislature in its wisdom thought it proper that for removal of the Sarpanch by vote of no-confidence shall be the proper by indirect method ofbeing voted out by the elected Panchas. After all elected panchas are also the voice of the whole Gram Sabha because it is Gram Sabha who has directly elected them. Therefore, when motion of no- con- fldence is passed against such sarpanch, it will be an indirect lack of confidence by Gram Sabha as all Panchas are elected representative of the Gram Sabha. It is a different matter that the Legislature could have provided one more check by seeking ratification of all the members of the Gram Sabhabeing smaller body, but that is no justification for the Court to .: .' delve into the matter. There is no justification to strike down a law on the ground that Legislature could have provided a better method ofremoval of Sarpauch.
It is within the domain of the State Legislature to make provision for the election ofSarpanch and Up-Sarpanch and also for theirremovaf. In the method provided, there is no arbitrariness violating of Article 14 of the Constitution of India. AIR 1993 SC 2042 ReI. Jagdishprasad Bhunjwa v. State of M.P., AIR 1997MP 184=1997 (1)MPLJ 512=1996 JLJ 335 (DB). -[2] It is a different matter that the legislature could have provided one. more check by seeking ratification of all the members of the Gram Sabha being smaller body, but that is no justification for the Court to delve into a realm by the Legislature because the Legislature is the supreme body so far as enacting oflaws is concerned and Court has only limited role to adjudicate that whether the Legislature has overstepped its limit or not or the provisions are ultra vires of Constitution or not. Therefore, there is no . justification to strike down a law on the ground that legislature could have provided a better method of removal ofSarpanch. JagdishprasadBhunjwa
v. State of M.P., AIR 1997 MP 184=1997 (1) MPLJ 512=1996 JLJ 335
(DB).
4. Requirements of section 21.-[1] Sub-section (1) starts with the expression "on a motion of no-confidence being passed by the Gram Panchayat" and then it states the requirements of such a motion being passed. The first requirement is that the motion should be passed hy a majority which is not less than three- fourth of the panchas present and voting. The emphasis is on the expression "not less than three-fourth".
It is not always necessary that the three-fourth numbet shall be a full
(PA)48
PANCHAYATRAJAVAMGRAMSWARAJ ADHI.,19938.21
105
COMMENTARY
1[(4) If the Sarpanch or the Upsarpanch, 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.]
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8.21
PANCHAYATRAJAVAMGRAMSWARAJ ADHI.,1993
(PA)47
I'
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I
SYNOPSIS
i. Objects.
2. Scope of Ss. 21 and 21-A. Both provisionsoperate in different spheres.
3. Election of Sarpanch direct but no-confidence motion indirect- Section not arbitrary on this account.
4. Requirements of section 21.
5. Notice of meeting of no-confidence.
6. Principle of natural justice to be followed. 6-A. Right to speak.
7.. Total number of panchas.
8. Passing of no-confidence motion. S-A .• Validity of Na-confidence Motion.
9. Prescribed authOl:ity. fixing date of ,meeting beyond 15_j.\;JY-~_.Mo:- _ - - -tion of ilri:c6nfidence 'pa'ssed cannot be 'heldTrivana.
10. Dispute-No confidence motion-Filing of dispu!L' under sub- sec- tion (4) before Collector.
lO-A. Expression of intention not proved.
IO-B. NirvachanNiyam, 1995are applicable.
II. Right of reply and leading of evidence.
12. Appeal and revision ..
13. Improper setting aside of no-confidence motion.
14. Bar against another motion and its applicability.
15. Writ petition.----- ---- -----
16. Rules.
1. Objects.- The provisions under SS.21 and 40 are quite distinct regard- ing objects and consequences. Mahesh Prasad v. State arM.p., 1997 (2) JLJ
397.
2. Scope ofSs. 21 and 21-A. Both provisions operate in different
"p.!>eres.- Section 21 provides for motion of no-confidence against Sarpanch ..,;Up-Sarpanch and Section 21-A apply in case of recall of office bearers of \-;l'am Panchriy-at:Th-e authorities .who take action under these provisions are differe;;t:tUnder S.21,.the 'parichas'takeaction~by passing a resoitition due to lack of confidence of the 'panchas' in the Sarpanch. Under S.21-A, the members of the Gram Sabha take action to recall the office bearers of Gram I'anchayat to rerall the Sarpanch by secret ballot. Gita Bai v. Sushila Bai, 2002 (2) MI'I..) ~::::=~()()~1 I.JlA 423.
Ins. by Mil 2 of 1997 [7-1-19971.
106
COMMENTARY
1 Sup. for the words Mone_yearM by M.P. Act 18 or 2007 [25-5-2007].
2 Sub. for the words "one-year" by M.P. Act 18 of 2007 [25-5-2007J.
8.21 PANCHAYATRAJAVAMGRAMSWARAJ ADHI.,1993(PA)46
8s.20, 21 and 38(1). Motion of no confidence moved within one year of entering office by the 8arpanch elected in a bye-election .Not
competent.- A person who was elected Sarpanch in a bye- election assumes office on the date of first meeting held after his election. Therefore, no no-confidence motion against him can be moved withiILone yeliT from the date on which the Sarpanch or Up-Sarpanch enter their office.The first meeting in his case would be that which is held after his election and not that whichwas held originallywhen the officebearers assumed officewhen the term of the Panchayat began. The first meeting mentioned in 8.20, is for duration ofthe term ofpanehayat and for the original Sarpanch assum- ing office.It does not apply to a Sarpanch who is eleeled in a bye-eleelion. Rajaram Patel v. State of M.P., 2002 (5)MPW 513=2002 (2) JW 41.
(3) If before the expiry of the period mentioned in sub-section (2), the Gram Panchayat is not reconstituted, it shall stand dissoived on the expiry of the said pertod and the provisions of section 87 shall apply thereto for a pertod not exceeding six months within which the Gram Panchayat shall be reconstituted in accordance with the provisions of this Act.
--- -. -- ------------ 21. Nocconfidence motion agarnstSarpanch 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 majortty is more than two third of the total number of Panchas constituting the Gram Panchayat for the time being, the Sarpanch or Up-Sarpanch against whom such motion is passed, shall cease to hold office forthwith.
(2) Notwithstanding anything contained in this Act or the rules made thereunder a Sarpanch or an l:!p-Sarpanch shall not preside over a meeting in which a motion ofno-confidence is discussed against him. Such meeting shall be convened in such manner as may be prescribed and shall be presided over by an officer of the Government as the Prescrtbed Authortty may appoint. The Sarpanch or the Up-Sarpanch, as the case may be, shall have a right to Speak at, or otherwise to-take part in, the proceeding of the meeting ..
(3)No-confidence motion shall not lie against the Sarpanch or Up- Sarpanch within a period 0[-'
(I) I[twoand half year] from the date on which the Sarpanch or Up-Sarpancb enter their respective office;
(il) six months preceding the date on which the term of office of the Sarpanch or Up-Sarpanch, as the case may be, expires; (ili) 2[sixmonths] from the date on which previous motion of no- confidence was rejected.
107
in Section 20.1 1[(2) If the outgoing Sarpanch 2[or President of Gram Nirman, Samlti] falls or refuses to hand over any pa:p'ers or property in his possession to the newly elected Sarpanch [or President of Gram Nirman Samiti], the prescribed authority may by order. In writing direct the outgoing Sarpanch 4[orPresident of Gram Nirman Samiti] to hand over forthwith all papers and property In his possession as Sarpanch 5[orPresident of Gram Nirman Samiti] to the new Sarpanch 6[or President of Gram Nirman Samltil, Up- Sarpanch or Secretary of the Gram Panchayat. as the case may be.]
(3)If an out-going Sarpanch 7[orPresident of Gram Nirman Samlti] fails to comply with the direction under sub-section (2), the prescribed authority shall proceed against him in accordance with Section 92 and shall take necessary steps to launch prosecution under Section 98.
(4) A Sarpanch Blor President of Gram Nirman Samitil against whom an action has been taken under sub- section (3) and who has been found guilty, shall be disqualified to be member or an office- bearer of panchayat for a period of six years from the date on which he has been found guilty:
Provided that such disqualification may be removed or the period thereof may be reduced by the State Government for reasons to be recorded in writing.
9[19. Notification of :election.-Evety ElectiOn'of Sarpanch,.-Up-.- Sarpanch and Panchas shall be published by the prescribed authority
in such manner as may be _prescribed.] ,
20. First meeting and term of office.-(l) First meeting of the Gram Panchayat shall be held within 30 days of the date of the publication under Section 19. Such meeting shall be convened by the prescribed authority and the provisions of section 44 regarding meet- ing as far as may be shall applyin respect of the said meeting.
(2) The officebearers of the Gram Panchayat shall hold office for Jive years from the date of the first meeting and no longer:
Provided that notwithstanding anything contained in this sub- section every person becoming an officebearer of a Gram Panchayat shall cease to hold officeforthwith-
lO[(i)on his ceasing to be a voter of the Gram Panchayat area; or]
(ii) On his becoming a member of State legislative Assembly or member of either House of Parliament.
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8.20 PANCHAYAT RAJ AVAM GRAM SWARAJ ADEll., 1993 (PA)45
,
I Subs. by M.P. 26 of 1994 [30.5.941.
2 Ins ..hy.M.P.,Act 16.of2004. w.e.LJ-l.2005.
;J ~(ns.by"M.P;Act Itrof2004, w.eJ. 1-1:2005.
4 Ins. by M.P. Act 16 of 2004. w.e.f. 1-1-2005.
5 Ins. by M.P. Act 16 of 2004, w.e.f. 1-1-2005.
6 Ins. by M.P. Act 16 of 2004. w.e.r. 1-1-2005.
7 Ins. by M.P. Act 16 of 2004. w.c.r. 1-1-2005.
8 Ins. by M.P. Act 16 of 2004. w.e.f. I-I-200!).
9 Subs. by M.P. 26 of 1994 (30.5.94). to Subs. by M.P. 26 of 1994 (30.5.94).
108
.,
\
belonging to Scheduled Castes/Scheduled Tribes and Other Backward Clas- ses not ultra vires ofArts. 14, 15 and 16 of the Constitution. Ramlal v. State of M.P., 1998 (l) MPLJ 192. ' .
I-A. Abandonment of Government service.-During service a Government servant cannot contest election either for the post of Panch or Scu'panch. Petitioner was intentionally absent from the service and was holding the office ofSarpanch as elected Sarpanch for a period of5 years, it indicates that he has relinquished the employment. PannalalThakur v. State of M.P., 2008 (3) MPLJ 635.
2. Election of Gram Panchayat. Five persons included in elec- toral rolls, not permitted to vote. Effect.- Where one petitioner won by 9 votes and the 9ther by 36 votes, even if the five persons who were not allowed to vote, if allowed, would have voted against the petitioner, the result of the election would not have been materially affected. Election therefore not set aside. P,!nbai v. Imratsingh, AIR 1995 MP 254.
3. New election ofSarpanch invalid.- Where a no confidence motion passed against a Sarpanch was declared to be invalid, another person elected in bye-election as Sarpanch has no right to such seat because such seat never became vacant. Deshraj Singh u. Gram Panchayal, Tilabujurg,
1998 (2) JLJ 94.
4. Appointmertt' of Panchayat Karmi.- Where selection' was made._ irithout issuing any advertisemerit, the paI1-chayatkarmi fs nofselected-bY:-
a valid resolution. Kashiprasad Lodhi v. State ofM.P., 1997 (I) MPWN 156.
5. Person disqualified.-For election to the post ofSarpanch ofa Gram Panchayat, a candidate who was holding the post of President, Jila Sahkari
. Sangh Maryadit, on the date of election is disqualied from being elected and in the instant case from the conduct of the candidate it was quite apparent that he had not submitted his resignation to that post, hence he is dis- qualified for being elected as a Sarpanch under sub-section (1)(iii). Krish- nanand Gnutam v. State of M.P., 2002 (2) MPLJ 4=2002 (2) JLJ 212.
6. Rules:- The State Government has made the following rules- in exercise of the powers conferred by this section: These Rules shall be found under Rules given separately.
"PANCHAYAT (UPSARPANCH, PRESIDENT AND VICE PRESI- DENT) NIRVACHAN NIYAM, 1995"
18. Handing over charge by outgoing Sarpanch l[or President of Gram Nirman Samitil.-2[(I) The newly elected Sarpanch 3[or Presi- dent of Gram Ninnan Samiti] shall be deemed to have assumed the charge of the office with effect from the date of first meeting as provided 1 -Ins. by M.P. Act 16 of 2004. w.e.f. 1-1~2005.
2 Subs. by M.P. 2 6 of 1994130.5.941. '3 tns"by 'M.P.Act 16 of 2004, w.e.f. 1-1-2005 . (PA)44 PANCHAYAT RAJ AvAM GRAM SWARAJ ADHI., 1993
S. 18
109
S.17
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PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)43
total population of the Scheduled Areas falling within that block and the population of Scheduled Trihes therein shall be exclude>,..] (it)Where the total population ofScheduled Castes and Scheduled Tribes in the Block is less than fifty percent, twenty five percent of seats of Sarpanchas of Gram Panchayats within the Block sh'!11be reserved for other Backward Classes.
(3l Not less than l[haif] of the total number of seats of Sarpanchas within the block shall be reserved forwomen.
(4) The seats reserved under this section shall be allotted by the prescribed authority in the Gram Panchayat within the block by
rotation in the prescribed manner:
21Providedthat the Gram Panchayat, which has no population of Scheduled Castes or Scheduled Tribes or other Backward Classes.
shall be excluded for 81!0l11tent 0[ seat reserved for Scheduled Castes,
Scheduled T'-;"es or other Backward Classes. as the case may be:] 31(5)After every election of Panchayats the State Election Commis- sion shall immediately hold the elections of Up-sarpanch of Gram
Panchayats, in such manner as may be prescribed.]
(6) If the Sarpanch of th~ Gram P?"dlayat does not belong to Scheduled Castes. or Scheduled Tribes or other Backward Classes the Up-Sarpanch shall be elected from amongst the Panchas belonging to
such. castes or tribes. or,backward c-lasses.. -----------"--_.--------
(7) If the Sarpanch or the Up-Sarpanch becomes the member of either House of Parliament or a member of the State Legislative
Assembly or Chairman or Vice-Chainnan of a Co-operative Society he
shall be de.emed to have vacated his office as Sarpanch or Up- Sar- panch. as the case may be, with effect from the date ofbecoming such
member or Chairman or Vice-Chairman and a casual vacancy shall be
deemed to have occurred in such officefor the purpose of Section 38.
(8) Notwithstanding anything contained in this section the Sar- panch shall be deemed to be a panch of Gram..l.'''J:lsol!
COMMENTARY
1.-Constitutional validity of provisions as to reservations of constituencies.-Election for posts ofPanch, Sarpanch, members of Janpad Panchayats. Provision as to reservations of..constituencies for Scheduled
Castes/ScheduledTribesand specialprovisionsforelectionofnot less than
one- third of the total number of seats reserved for women candidates I Sub. for the word "one~third"by "M.P. Act 18 of 2007125-5-2007]. - . .
2 Ins. byMP39011995115.12.95i.
", 3 .S.qb-sec. (5) subs. by.M.P. Act.20 of 2005, w.e.f. 30-8~2d05.Before substitution. il was as under:-
.'(5)The PrescIibed Authority shall. ;.I.':' soon as may be after every election call a meeting of the elected Panchas and Sarpanch for the purpose of election of Up-Sarpanch and subject to the provisions of sub- section (7) the Gram Panchayal shall. in the meeting. so called elect from amongst its elected members an Up- } Sarpanch."
110
- -- -- ~-_.'------ -- -- one-third of the total number of seats reserved for women candidates belongingto ScheduledCastes/ScheduledTribes and Other Backward Clas- ses not ultra vires ofArts. 14, 15 and 16 ofthe Constitution. Ra.mlal v. State of M.P., 1998 (1) MPLJ 192_
Trasnitory arrangement -Election ofSarpanch in first meeting.- Elected panchas in the first meeting of the Gram Panchayat elect the Sm'panchfrom amongst themselves whoshall discharge all the functions of Sarpanch. This is a transitory arrangement till a fresh proceedingfor filling the post of Sarpanch is undertaken_ This is a stop gap arrangement and transitory provision.Ramvati v. Sta.te ofM.P. ,2011(3) MPLJ 579 =2011(5)
MPHTI05.
14. Qualification to vote and to be a candidate.-(I) Every person whose name is included in the list of voters of a village shall be qualified to vote all1w clcction ofan officebearer of a panchayat within whose area the village is comprised.
(2) Every such person unless disqualified under this Act or any other law for the time being in force shall be qualified to be 1[elected] as office-bearer of a Panchayat.
15. Prohibition of simultaneous membership.-No p~rson .shall be eligible for seeking election as an officebearer of a Panchayat from:
more than one ward or constituency as the case may be. 2[16. x x xl
17. Election of Sarpanch and Up-Sarpanch. -(I) In every Gram Panchayat there shall be a Sarpanch and an Up-Sarpanch. A person who-
(i) is qualified to be elected as panch:
(ii) is i101 a member of either House of Parliament or member of -Slate Legislative-Assembly: and
(iii) is not Chairman or Vice-Chairman of Co-operative Society:
shall be elected as a Sarpanch. subject to provisions of sub- sections (2). (3) and (4), by persons whose names are included in the list of voters of the Gram Panchayat area in such manner as may be prescribed.
(2) (i) Such number of seats of Sarpanchas of Gram Panchayats shall be reserved for Scheduled Castes and Scheduled Tribes in the, Gram Panchayat within the block which be~s the same proportion to the total number of Sarpanchas in the block as the proportion of the Scheduled Castes and Scheduled Tribes in the block bears to the total population of the block:
3[Provided that for the purpose of computing the number of Sar- panch of Gram Panchayat to be reserved for Scheduled Tribes in the block. other than the Scheduled Areas forming part of that block. the
PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993
,
S. 14
-' ",
1 Subs. by M.P. 26 of 1994 J30.5.941.
2 Omitted by M.P. 26 of 1994130.5.941. 3 .Added by MP43 of 1997 [5-12-19971.
(PA)42
111
S, 13
, '
PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)41
,
i the Act.] 11(3)xxx)
,
(4) (i)Seats shall be reserved in every Gram Panchayat for-
(a) the Scheduled Castes, and
(b) the Scheduled Tribes and tne number of seats so reserved shall bear, as nearly as may be the same proportion to the total number of seats to be filled by direct election In that Gram Panchayat as the population of the Scheduled Castes , or of the Scheduled Tribes in that Gram Panchayat area bears to the total population of that area and such seats shall be allotted by the prescribed authority 2(x x x] to different wards in that Gram Panchayat, in the prescribed
manner.
(ii) Ina Gram Panchayat where fifty percent or less than fifty percent seats have been reserved both for the Scheduled Castes and Scheduled Tribes, twenty fivepercent seats ofthe total number of seats shall be reserved for other Backward Classes and such seats shall be allotted by rotation to different wards in that Gram Panchayat by the
Collector in the prescribed manner.
(5)Not less than 3(haif]of the total number of seats reserved under sub-section (4)shall be reserved forwomen belonging to the Scheduled Castes or, as the case may be, the Scheduled Tribes or other Backward Classes. .
(6)Not less than 4[half]including the,number of seats reserved for women belonging to the Scheduled Castes, the Scheduled Tribes and other Backward Classes of the total number of seats to be filled by
direct lelection in every Gram Panchayat shall be reserved for women
and such seats may.be allotted by the prescribed authority by drawing of lots and by rotation to different wards in a Gram Panchayat in the
prescribed manner.
5(xx x) ... ' .6((7) The wards which have no popuiation of Scheduled Castes, Scheduled Tribes or Other Backward Classes shall be excluded for allotment of seats reserved for Scheduled Castes or Scheduled Tribes or Other Backward Classes as the case may be.j
COMMENTARY
Constitutional validity of provisions as to reservations of con~ stituencies.-Electian for posts of Panch,Sarpanch, members of Janpad Pa:Q~hayats. _Pr<.)Vi~sion~s..t9 reservatipns oLconstituencies for Scheduled
..Castes/Scheduled'Tribesand specialjJravisiahsfor electionofnot less than ._'~"'_"'~'~ .-...~."'~- .••.-_~.. -.- •. _•.••"" ••G.__ •• ) ."..•.• ~"'-"'-""'-;-'.'.'''' .•''. ~'~' " - _,_# • _
1 Omitted by M.P. 26 of 1994 130.5.941 . .2 Words."by rotation"-omttted by M.P,Act 5 of 1999 (5-4. 1999J.
3 Sub. for the word Mone-third" by M.P. Act 18 of 2007 (25-5-2007].
4 Sub. for the word "one-third" by M.P. Act 18 of 2007 (25-5-2007J.
5 First proviso omitted by M.P.Act 5 of 1999 (5-4-19991 and second proviso omitted
by M.P. 26 of 1994 [30.5.941.
6 Ins. by M.P.Act 5 of 1999 15-4-19991,
112
COMMENTARY
Constitution of Gram Panchayat.-In the matter of constitution of Gram Panchayat with head quarter at a parti.cular place, the High Court shall not interfere with the decision of the State Government. See comments under 8.3. Rajdhar Singh v. State of M.P.• 1995 MPLJ 152 (DB).
8.12 PANCHAYATRAJAVAMGRAMSWARAJ ADHI.,1993(PA)40
12. Division of Gram Panchayat into wards.-Each Gram Panchayat area shall be divided into not less than ten wards as htay be determined tly the Collector and each ward shall be a single member ward:
Provided that where the population of Gram Panchayat area is"
more than one thousand it shall be divided in to wards in such manner that the total number of wards shall not exceed twenty and the populati&n of each ward shall as far as practicable, be the same in each ward:
Provided further that the ratio between the population of the Gram Panchayat area and the number of wards in such panchayat shall. so far as practicable, be the same throughout the block within which the Panchayat area falls.
13. Constitution 'of Gram Panchayat .. I[(I) Every Gram Panchayat shall consist of elected Panchas and a 8arpanch]. 2[(2) If any village or ward falls to elect a Sarpanch or "as the case may be, a Panch, fresh election proceedings shall be commenced to fill the seat in such village or as the case may be. such ward within six months: .
Provided that pending the election of 8arpanch under this sub. section, elected panchas shall subject to the provisions of sub. section (2), (3) and (4) of Section 17, in the first meeting under section 20 elect a Sarpanch from amongst themselves who shall discharge all the functions of Sarpanch under the Act till a 8arpanch elected under this sub-section enters upon the office:
Provided further that further proceedings for constituting the '. r;mt'Panchayafshall not be stayed pending the election of Panch in ;l{.'{'ordance with this sub-section:
Provided also that if any village or ward again fails to elect a Sarpanch or as the case may be. a Panch, fresh election proceedings shall not be commenced in such village or 'as the case may be. in such ward unless the State Election Commission is satisfied that there is likelihood of the village or as the case may be, a ward electing a Sarpanch or a Panch; and in case the Commission decides not to hold fresh election of Sarpanch, the Sarpanch elected under the first proviso shall continue to discharge all the functions of Sarpanch under I Subs. by M.P. 26 of 1994 (30.5.941.'
2 Subs. by M.P. 26 of 1994 (30.5.94J.
113
8.11
• •
PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)39
10. Est"bllshment of Gram Panchayat. Janpad Panchayat and ZUa Panchayat.-(l) There shall be a G~am Panchayat for every village specified as a village for the purposes of this Act under Section 3.
(2) The Governor may by notification, divide a district into blocks. The notification shall specify the name of every such block, its head- quarters and the area comprised therein. For every block there shall be a Janpad Panchayat which shall be known by the name of the block.
(3) There shall be a Zila Panchayat for every district:
l[Provided that every Municipal Corporation, Municipal Council or Nagar Panchayat constituted under the relevant law for the time being in force shall form a separate administrative unit for the area within
. Its jurisdiction.] .
11. Incorporation of Panchayat. -Every Gram Panchayat. Janpad Panchayat and Zila Panchayat shall be body corporate by the name specified, there for in the order under Section 3 for village or notifica- tion under Section 10 for Janpad Panchayat and Zila Panchayat as the case may be, having perpetual succession and a common seal and shall by the said name, sue and be sued and shall subject to the provisions of this Act and the rules made thereunder, have power to acquire, hold or transfer property movable or immovable, to enter into contracts and to do all other things necessary for the purpose of this Act.
COMMENTi}RY
On behalf of the Panchayat the Sarpanch cannot sue and file an appeal independently.-Under S.11 Gram Panchayat being body cor- porate can sue and can be sued. The power shall not vest in Sarpanch but it will vest in the whole body of the Gram Panchayat and if the Panchayat wants to sue or to file an appeal, the Panchayat has to pass a resolution authorising either to Sarpanch, or Up-Sarpanch or to any Panch or to file appeal or Writ Petition Or any other petition. Rule 3 of the M.P. Gram Panchayat(Powers and functions ofthe Secretary) Rules, 1999jJrovides that ~ executive power of Gram Panchayat shall vest in the Panchayat Secretary, who will exercise the executive power, but in these Rules also it is nowhere provided that who will sue on behalf of the Panchayat. Held, therefore we are of view that Gram Panchayat is a body corporate, having power to sue or to be sued, and the Gram Panchayat has to authorise somebody to act on its behalf and without the resolution by authorising any person to sue of behalf of the Panchayat, the Sarpanch cannot sue and appeal ind cpendently. Gram Panchayat, Bamrol v. Jagdish Singh Rq.wat, 2008 (3) MPLJ 127 ~ ~. ;;:;.2QQ!!J1),-MP.!I1':!.;!g:.20Jl~.~2.~W".1Q2~DB. Gram Panchayat is a body corporate.-Under section 11 of the Act, there ,can. be no tr'1ce of doubt that Gram Panchayat is a body corporate. Sagar Machhua Sahakari Samiti, Seoni v. Chief Executive Officer, Janpad Panchayat, Seoni & Anr., 2008 (2) MPLJ 194 ~ AIR 2008 (NOe) 1388 ~ 2008(1) JLJ 329 ~ 2008(1) MPHT 254 [DB].
1 Subs. by M.P.26 of 1994 [30.5.941.
114
COMMENTARY
Holding of office.-In an electionofSarpa~ch, oneperson 'D' contested the seat but in the result, another person 'R' was,declared elected. 'D' filed an election petition, which was ultimately decided"in his favour by the Supreme Court but after a lapse ofmore than 4years. It was contendedthat such person is entitled to hold officefora full term of 5 years. Negativing his contention, it was held that the duration ofa Panchayat is always for a period offiveyears fromthe date ofthe first meeting.Assuch the petitioner 'D' is entitled to assume charge of Sarpanch for the remaining duration of the Panchayat and no more. Dukhkhu Singh v. State of M.P., 2005 (3) MPLJ 493=2005 (3)MPHT 46.
7-L. Control over Government employees.-(l) The Gram Sabha shall have the power to withhold salary, sanction leave, Inspect and supervise the work of a Government employee whose area Qfjurisdic- tion lies within the limits of Gram Sabha area.
(2) Gram Sabha shall have the power to recommend to the com- petent authority Imposition of penalties In respect of a Goverl}Il1ent employee referred to In sub-section (I) for misconduct and negligence of duties. •
7-M. Power of State Government in relation to functions of Gram Sabha.-The State Government may. by general or special order. add or withdraw functions and duties entrusted to Gram Sabha when the State Govemment undertakes execution of any of the functions entrusted to Gram Sabha.
CHAPTER III-ESTABLISHMENT OF PANCHAYATS
8. Constitution of Panchayat.-There shall be constituted for the purpose of this Act-
(al a.Gram Panchayat for a village;
(b) a Janpad Panchayat for a Block; and (c)a Zlla Panchayat for a district.
9. Duration of Panchayat.-(l) Every Panchayat shall continue for five years from the date appointed for its first meeting and no longer unless sooner diss91ved under this Act..
(2)An election to constitute a PanchayaVshall be completed-
(a) before the expiry of its duration specified In sub-section (1);
(b) before the expiration of a period of six months from the date of its dissolution; .
Provided that where the remainder of the period for which the dissolved panchay.at would have continued is less than six months it shall not be necessary to hold any election under this clause for constituting the Panchayat for such period.
(3) A Panchayat constituted upon the' dissolution of aPanchayat before the expiration of its duration shall continue only for the remainder of the period for which the dissolved panchayats. would have continued under clause (I) had it not been so dissolved. S.7.LPANCHAYAT RAJ AVAM GRAM SWARAJ ADHl., 1993(PA)38
115
. . • •
• • • • S.7-K PANCHAYAT RAJ AVAM GRAM SWARAJ ADfII., 1993 (PA)37
J
:
•
I.
-r \
\
• (al donations,
(b) income from oth<;rsources, I[(c) any sum received from the District Panchayat Raj Fund or from the Funds of three-tier Panchayats, the proceeds of the
land revenue. ce~s qn land revenue, royalty received on niinor minerais, income received form lease of fishing rights, grazing fees and shala bhawan upkar as prescribed or fixed by the State Government.
(d) the taxes, duties, toils and fees imposed as mentioned iti the Schedule IAand Schedule lIAand other income of the Gram Sabha.)
(e) any sums received by Gram Panchayat under various schemes sponsored by the Central Government or the State Government, to be ailotted to the Gram Sabha according to norms prescribed by the Central Government or the State Government.
(2) Subject to the provisions of this Act and the. rules made thereunder ail property vested in the Gram Sabha and the.Gram Kosh shail be applied for the purposes of this Act or for other purposes connected with the activities for the development of viilage or for such other expenses as the Gram Sabha may approve:
Provided that funds rec.eivedunder any; scheme, shall be.utilised,c.," "
according to the guidelines issued by the Central Government, or the
" State Government, as the cas~maybe. . (3)The Gram Kosh shall be kept and maintained in such manner and in such form as may be prescribed.
2[(4) The Gram Kosh shail be operated by the Gram Vikas Samiti and ail amounts from the Gram Kosh shail be drawn under Joint .signature of the 3[President of the Gram 4[Vikas] Samiti and the Secretary of the Gram Panchayatl with the approval of Gram Sabha and accounts of the drawalshall-be maintained by the Secretary of the Gram Vikas Samiti. The information regarding all receipts into ~nd drawals from the Gram Kosh shall be placed before the Gram Satha. in its next meeting.]
(5i 5['; x x-I
7-K. Account and Audit.-The Gram Sabha shail cause to be maintained proper books of accounts and prepare annual statement of accounts. The accounts of the Gram Sabha shall be audited from time. to .time in such manner and by 'isuch authority as may be
•..prt
..~ .
1 Clauses (c) & (d) subs. by M.P. Act 23 of 2001 {lO-1O-200l}.
2 Sub-sec. (4) subs. by M.P. Act 23 of2001 {lO-1O-200l}.
3 Subs. by M.P. Act 16 of2004, w.e.f. 1-1-2005
4 Subs. for the word "Nirman" by M.P. Act 20 of 2005, w.e.f. 30-8- 2005.
5 Sub-sec. (5) omitted by M.P. Act }6 0[2004, w.e.f. }-}-2005.
.
r r
[
116
"
" ~. • • . .
8.69 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHl., 1993 (PA)117 f
i'
I
,
\ .'.
I
J
I
J
Secretary and one or more Assistant Secretaries for a Gram Panchayat. who shali discharge such functions and perform such duties as may be assigned to them by the State Government or prescribed autholity:] Provided that the person hoiding the charge of a Secretary of Gram Panchayat immediateiy before the commencement of this Act shall continue to function as such till a Secretary is appointed in accordance with this section.
1[Provided further that a person shall not hoid charge of a 2[Secretary or Assistant Secretary] of Gram Panchayat, if such a person happens to be relative of any office bearer of the concerned Gram Panchayat.
Explanation.-for the purpose of this sub-section the expression
"relative" shall mean father. mother. brother. sister, husband. wife, son, daughter. father-in-law, mother-In-law. brother-in- law, slster-in- law. son-In-law. daughter-in-law.]
3[(2) The S'tate Government shall appoint for every Janpad Panchayat a Chief Executive Officer and may be also appoint one or more Additional Chief Executive Officer, who shall discharge such functions and perform such duties as may be assigned to them by the Chief Executive Officer].
4[(3) The State Government shall appoint for every Zlla Panchayat a Chief Executive Officer and may also appoint one or more Additional Chief Executive Officers, .Deputy Chief Executive Officersand.-Execu--' tive Officers who shall discharge such f)lnctions and perform such duties as may be assigned to them by the Chief Executive Officer].
(4) Duling the absence of a Secretary of Gram Panchayat or 5[Chlef Executive Officer of Janpad Panchayat or Zila Panchayat] due to leave, retirement, death, resignation or otherwise the presclibed authority shall, as soon as possible, make such arrangements as he deems fit, for carrying on the office of Secretary of Gram Panchayat or 6[Chief Executive Officer of Janpad Panchayat or Zlla Panchayati as the case may be. A person while carrying on such officeshall exercise al) powers. conferred by this Act or-niles madetiiereunder on the Secretary of Gram Panchayat or 7[Chlef Executive Officer of Janpad Panchayat or Zila Panchayats] as the case may be.
(5) The Secretary of the Gram Panchayat, the 8[Chlef Executive Officer of the Janpad Panchayat and Zila Panchayat] shall be respon- sible for keeping and maintaining the records of the Gram Panchayat, Janapad Panchayat or Zlla Panchayat as'the case may be.
1 Ins. byMP 2 of 1997[7-1-19971. ,. ,
2 Subs. by M.P. Act No. 26 of 2012 (23-5-2012) for'the words "Secretary".
3 Subs.byMP43of 1997[5-12-19971.
4 Subs.byMP2 ofJ997 (7-1-19971.
. 5 'Subs. by M,P. 26 of 1994 (30.5.94) for the words "Chief Executlve Officer of Janpad Panchayat or Secretary of Zila Panchayat"
6 Subs. ibid.
7 Subs. ibid. S Subs. by M.P. 26 of 1994 (30.5.94] for the words "ChIef Executive Officer of Janapad Panchayat or Secretary of Zila Panchayat"
117
8.67(PA)116 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993
, 69. Appointment of Secretary and Chief Executive Officer.-ll) .3[The State Government or the prescribed authority may appoint a ,Secretary"and oneCifmore ASsistant'Secretaries 'for aGrarn Panchayat, who shall discharge such functions and perform such duties as may
•• _._. _" ~ .' __~ _' ._ •••• _"-' -,,,~'.. ~',,".,,-._ ._. ~_.,_' •• '0" • '..... .' ••• ,
1 Subs. by MP43 of 1997 [5-12-1997[.
2 Sub-sections (5) and (6) subs. by MP 2 of 1997. omitted by MP 43 of 1997 [5-12-1997[.
3 Opening para subs. by M.P. Act No. 26 of 2012 [23-5-2012] for the following:-
"The State Government or the prescribed authority may appoint a Secretary for a Gram Panchayat or group of two or more Gram Panchayats:".
Promotions.- Order of promotions were passed without taking any previous approval of the prescribedatitliority'- OrdeYoeing illegal, the promoteeswere revertM back.Ratan Deep Gupta v. State of M.P., 2005 (1) MPLJ 149 (DB). '
ance with such inst."Uctions as the State Government may either generally or specially issue in this behalf.
1[(4) All amounts from the Panchayat Fund shall be drawn under,-
(il, the joint signatures of the Sarpanch and Secretary in the case of a Gram Panchayat;
(ii) the signature of the Chief Executive Officer or any other officer authorised by Chief Executive Officer, in the case of a Janpad Panchayat of Zila Panchayat. as the case may be:
Provided that in the case ofa Janpad or Zila Panchayat all amounts shall be drav.'l1only in accordance with the Annual Budget. Detalled Action plan setting 'out purposes and with the prior approval of the General Administration Committee of the Janpad Panchayat or Zila Panchayat. as the case may-be;
Provided further that information regarding all receipts into and , drawals from the Panchayat Fund shall be placed before the Panchayat in its next meeting]. '
2[xx xl
67. Mode of executing contract.-The mode of the executing the I contracts by the Panchayats shall be such as may be prescribed.
"Of t~U;b~~~h{o~i::i~<,r5;ih:e~~t:~~T~~s~~i~~~~~:rl,;lelo:n~X~~~:~ ,II' Rules given separately.
"Modes of Executing Contract Rules, 1995"
68. Powers to make grant-in-ald.-Subject to the previous sanc- tion of the State Government or the prescribed authority the Panchayat may make grant-in-aid for any work of public utility.
COMMENTARY
CHAPTER VIII-ESTABLISHMENT, BUDGET AND
ACCOUNTSOFPANCHAYATS .
118
• • • •
8.66 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)115
COMMENTARY
1. Applicability.-All appointments required the previous approval of the prescribed authority. The word "appointment" does not exclude "promo- tions". Raton Deep Gupta v. State of M.P., 2005 (1) MPLJ 149 (DB).
2. Natural justice.-Promotion of appellants cancelled for violation of the provisions of this section and they were reverted to their original post without giving any opportunity to show cause. The opportunity, if given, would have been futile since no other order could have been passed in the matter. Raton Deep Gupta v. State of M.P., 2005 (1) MPLJ 149 (DB).
64. Grant-in-aid to Panchayat.-The State Government shall make grant-in-aid to the Panchayats as may be decided on the basis of recommendations of the State Finance Commission.
65. Transfer of immovable property.-(l) No immovable property vested in or belonging to a Panchayat shall be transferred by sale, gift, mortgage or exchange or by lease for a period exceeding three years, or otherwise except with the sanction of the State Government or any officer authoIised by it in this behalf.
(2) The procedure of transfer of immovable property shall be such as may be prescribed.
COMMENTARY
1. Lease of immovable property.- Lease of immovable property cannot be granted for more than three years in the absence of sanction of the State Government, Balaram v. State of M.P" 1998 (I) MPWN 238.
2. Rules.- The State Government has made the following rules in exer- cise ofthe powers conferred by this section. These rules shall be found under Rules given separately.
"Transfer of Immovable Property Rules, 1994."
66. Panchayat Fund.-(l) Every Panchayat shall establish a fund to be called the Panchayat Fund and all sums received by the Panchayat, shall form part of the said Fund.
(2) Subject to; the provisions of this Act and the rules made I""reunder,all property vested in the Panchayat and the Panchayat I'und shall be applied for the purposes of this Act or for other purposes connected with activities for the development of Panchayats generally or for such other expenses as the State GQvernment may approve on an application of Panchayat or otherwise in the public interest. The Panchayat Fund shall be kept in the nearest Government Treasury or Sub-Treasury or Post Office or Cooperative Bank or Scheduled Bank or its branch.
(3) An amount allotted to the Panchayat by the State Government or any other person or local authoIity for any specified work or purpose shall be utilised exchlsively for such work or purposes and in 3.~cord-
119
• CHAPTER VII-FUND AND PROPERTY OF PANCHAYAT
62. State Government may vest certain property in
Panchayat.-(l) The State Government may,. by notification .and_sub-. ject to s-uch conditions and restnctions as it may think flt to impose, vest in a Gram Panchayat, Janapad Palwhayat or Zlla Panchayat as the ease may be, any property vested In the State Government. (2)The State Government may, resume any property vested in the' Panchayat other under sub-section (I). No compensation other than the amount paid by the Panchayat 'for such transfer or the market value at the date of resumption of any building or works erected or executed on such properly by the Panchayat shall be payable:
P,:ovj(j~d ,t1gt no ._CRIllP.ensation.sha\l be payable in respect of building, structure or works constructed or erected in contravention of the terms and con.cljtioJ:lsofJ.I1ev.esting. -- - '" ,,... ....•-_. - -
63. Assignment of funds to the Panchayat.-The State Govern- JIIl'1l1 may assign to a Panchayat such taxes, tolls and fees levied and collecled by the State Government and may make grant-in-aid from the consolIdated fund of the State for such purposes and subject to such conditions and limits as the State Government may deem flt. r
, ,
8.62 (PA)1l4 PANCHAYATRAJAVAMGRAMSWARAJ ADHI.,1993
tion or illegal construction:
(i) being an officer having power to sanction layout ormap for the construction of a building grants sanction or approves such layout or map; or
(ti) being an officer under a primary duty to do so knowingly omits to report illegal diversion of land or illegal construc- tion of a building in such an area to the proper authority; or (iti) being an officer or an employee responsible to take, action against the illegal diversion of land or illegal colonization or illegal construction of a buildtng in such an area fails to take
action; or
(iv) being an officer or the authority competent to sanction
electrical or water supply connection grants such sanction
with respect to the building in such an area; or
(v) illegally influences the officers aforesaid in granting such sanction or in omitting to make a report of such illegal diversion of land or construction of building in areas; shall be punished with simple imprisonment which may extend to six months or with fine or with both:
Provided that nothing contained in clause (iv) shall apply to the cases where.theCall.eciar, with the approval of.theState. Government,
""c"rtite's thaHilpublic interest there is no objectionto provide electrical and water supply connection.to .the building in the area of illegal
diversion or illegal colonization.
,
120
• •
• • • S.61-G PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)1l3 prescribed.]
1(2) Notwithstanding anything contained in the Madhya Pradesh Land ReVen(le Code, 1959 (No. 20 of 1959) the transfer or agreement to transfer of plots made by a colonizer; in an area of lllegal diversion or illegal colonization, shall be void.
(3)The prescribed authority may after giving show cause notice to the parties take over the management of the land, cause the area to be planned and developed and shall thereafter allot the land preferentially amongst the plat holders in such manner and subject to such condi- tions as. may be prescribed.
(4) The all-out shall on fulfillment of the conditions be deemed to be a valid transferee of the plot from the Colonizer and the power of the prescribed authority as manager of the plot shall corne to an end. 61-G. Forfeiture of the land Involved In Illegal colonlzatlon.- The right, title or interest of the colonizer in the land under illegal colonization, shall upon and from the date. of conviction of the Colonizer under sub-section (3) of Section 61-0 stand forfeited and vested in the Gram Panchayat free from all encumbrances.]
PREVIOUS PROVISIONS
[Provisions which were applicable before substituion, are as underJ. 61-A. Definitions.-For the purposes of this Chapter "Gram Panchayat area". means such area which is situated in the Gram .cPanchayat witliiIia distance .of:--. - .. __. ..c .
(i) sixteen kilometers from the limits of a Municipal Corporation constituted under the Madhya Pradesh Municipal Corporation Act, 1956 (No.23 of 1956);
(ii) eight kilometers from the limits of a Municipal Councilor Nagar Panchayat constituted under the Madhya Pradesh Mrmicipalities Act, 1961 (No.37 of 1961);
(iii) three kilometers from the limits of an urban area other than those specified in (i).and (ii) above;
(iv) one kilometers from the side of a National Highway specified in or declared under the.National Highway Act, 1956 (XLVII of 1956) or public road notified under section 2 ofthe Madhya Pradesh Highway Act, 1936 (XXXIV of 1936).
61-C. Development of Colonies.- The registration certificl!te shall entitle the Colonizer to undertake the development (}frol011iesin the Gram Panchayat area subject to th~provisiohs ofthi'l0ct and the rules made in this behalf.
61-D. Sub-section (3).~(3)Whoever commits or abetstJ1e commis- sion of an offence of illegal diversion or lillegal colonization shall be punished with simple imprisonment which may extend to six months or with a minimum fme of ten thousand rupees or with both. 61-E. Punishment for abatement of Offence of DIegal Con- struction,- .Whoeverin the area of illegal diversion or illegal coloniza-
1 Sub-sections (II. (2) & [3) renumbered as (2). (31 & (4) by MP 29 of 2013. 110-9-2013).
121
.. •• .' (PA)112 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 S.61'E
,
I ,
c, • t • ,,
"p,, r
or with a minimum fine of one thousand rupees or with both. II61-E. Punishment for abatement of Offence of illegal Construc- tion. -(1)Whoever in the area of illegal diversion or illegal colonization or illegal constructlon,-
(I) being an officer having power to sanction layout or map for the construction of a building grants sanction or approves such layout or map; or
(Ii) being an officer under a primary duty to do so knowingly omits to report illegal. diversion of land or illegal construction of a building in such an area to the proper authoIity; or (ill) being an officer or an employee responsible to take action against the illegal diversion of land or illegal colonization or illegal construction of a building In such an area fails to take action; or
(Iv) being an officer or the authoIity competent to sanction electri- cal or water supply connection grants such sanction with respect to the building in such an area,
shall be punished with simple impIisonment which may extend to three years and a fine which may extend to ten thousand rupees; Provided t hat nothing contained in clause [iv) shall apply to the cases where the Collector, with the approval of the State Government, certifies that in publlc.tntetesHnete'H;.n<.H5bJectionto provldeeJectifbil"C:.'.c "c,~ and water supply connection to the building in the area of illegal diversion or illegal colonization. '
. (2) Whoever illegally influences the officers aforesaid in granting such sanction or in omitting to make a report of such Illegal diversion of land or illegal construction shall be punished with simple imprison- ment which may extend to three years and a fine which may extend to ten thousand rupees.]
2(61_EA. Punishment for not takln~ aclion against illegal colonlza- tlon.-In a case'of illegal.eolonlzatlonlf au ,official authciIised-by'the --, Competent Authority to Inspect, report,s~p or remove any construc- tion knowingly omits to take action, or'lfa'police officer responsible to provide assistance necessary for such action does not do so, shall be punished with simple imprlsonmenl which may extend to three years or with fine which may extend to tell thousand rupees or with both.) ,61-F. Transfer of plots in area of illegal diversion of illegal colonization to be void.-3((I) The Registrars and Sub-Registrars appointed under Sect\on 6 of the Registration Act, 1908 (No. 16 of
. ,1908).shall; at ,the end of..every.month,cQrnmunicate details of all transfers or agreements to transfer of Plots or houses in the Gram
"l?JlIlct>a}'.atareato.t4eprcf;cribed authority In such manner as may be
1 Subs. by MP 21 of2013 i24-4-20131.See old provisions in Pr('vlous ProVIsions.
2 Ins. by MP21 of 2013124-4-20131.
3 Ins. by MP29 of2013I10.9-20131. :-- .
122
• •
S.61-D PANCHAYAT RAJ AVAM GRAM SWARAJ ADHl., 1993 (PA)1l1 establishment of the colony.
(2) On receipt of the application for registration under sub- section (Il; the l[such Competent Authority as may be prescribed by State Government] shall. subject to the rules made in this behalf. either issue or refuse to issue the registration certificate within thirty days:
Provided that if the 2[such Competent Authority as. may be prescribed by State Government] refuses to issue the registration certificate. the reasons for refusal shall be intimated to the applicant. (3)The State Government shall have power to make rules prescrib- ing the form of application. amount of fees for registration and other terms and conditions. for issue of registration certificate. 3[ 51-C. Development of Colonies.-(l) Subject to the provisions of this Act and the ruies made thereunder. any colonizer. who has been issued registration certificate under sub-section (2) of Section 61-B. may develop a colony,in the Gram Panchayat area.
(2) (a) The colonizer shall provide developed plots or constructed dwelling units to the economically weaker section as may be prescribed.
(b) The size, number and location of such plots or dwelling units oJ} may be prescribed.
(3) Notwithstanding anything contained in this Act, In addition to or in lieu of the plots ()rdwelling units mentioned in clause, (b) oC sub-section (2), the' State Government may imjiose. colleCt and iIullze' , , a shelter fee as may be prescribed.] , _
51-D. Punishment for Illegal Colonization. - (1)A Colonizer who, in contravention of the provisions of Section 172 of the Madhya Pradesh Land Revenue Code. 1959 (No.20 of 1959) and the rules made thereunder, diverts the land or part thereof, Commits and offence of illegal diversion ofland.
(2)AColonizer who divides his land or the land of any other person into plots with the object of establishing a colony in breach of the requirements contemplated in this ACtor the rules made In this b,ehalf,' commits an offence of lllegal colonization.
4((3) Whoever commits an offence of lllegal diversion or illegal colonization shall be punished with imprisonment of not less than three years and not more than seven years., and a minimum fine of ten thousand rupees. Such offence shall be cognizable.]
(4) Whoever constructs a building in an area of lllegal diversioll or lllegal colonization commits an offence of lllegal construction.
(5) Whoever commits an offence of lllegal construction shall be punished with simple imprisonment which may extend to six months
1 Subs. by MP 21 of2013 [24-4-2013) for words "Sub-Divisional Officer (Revenue)".
2 Subs. by MP21 of2013 [24-4-2013) for words "Sub-Divisional Officer (Revenue)",
3 S.61-C Subs. by MP21 of 2013 [24-4-2013). See old provisions in "Previous Provisions", given at the end of this chapter.
4 Subs. byMP21 of2013 (24-4-2013). See old provisions in Previous Provisions.
123
• ., (PA)110 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHl., 1993 S.61.A I[CHAPTER-VI_A. COLONIZATION
2[ 61-A. Definitions.-For the purposes of this Chapter,-
(a) "Gram Panchayat Area"'means such area which is situated in the Gram Panchayat Definitions within a distance of,-
(i) sixteen kilometers from the limits of a Municipal Corporation constituted linder the Madhya Pradesh Municipal Corporation Act, 1956 (No. 23 of 1956);
(il)elght kilometers from the limits of a Municipal Council or Nagar Parlshad constituted under the Madhya Pradesh Municipalities Act, 1961 (No. 37 of 1961);
(III)three kilometers from the limits of an urban area other than those specified in (I)and (i1)above:
(iv)one kilometer from the side of a National Highway specified in or declared under the National HigiJwayAct, 1956 (XLVII of 1(56) or public road notified under Section 2 of the Madhya Pradesh Highway Act, 1936 (XXXIVof 1936):
Provided that any area situated within the planning area notified under section 13 of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhlnlyam 1973, (No. 23 of 1973) shall be deemed to be a "Gram Panchayat Area" for the purpose of this Chapter:
, (b) ~colony-,means:an,are.awhich,hasbeen,dev.eloped_by_4ividlng~.'_." , the said area into plots and Includes group housing but excludes an area which may have been divided amongst the members of a family, ordinarily for the purpose of constructing dwelling units;
(c) "colonizer" means any person, society, Institution or entity. excluding those that may be so notified by the State Government, who intends to take up the work of developing a colony In accordance with the provisions of this Act and rules made thereunder for the purpose of transfer by sale or otherwise allor, some of the plots or the building or part, ther~of._'!I'(1.,!s.,regist"recl_aS_'!.colonl2;er by, theC9mpetenL Authority under this Act.]
61.B. Registration of Coloniser.-(l) Any person who intends to undertake the establishment of a colony In the Gram Panchayat area for the purpose of dividing land into plots, with or without developing the area. transfers or agrees to transfer gradually, or at a time, to persons desirous of settling down on those plots by constructing 'residential, non-residential or composite accommodation shall apply to the 3[such Competent Authority as may be prescribed by State Govemment] for.the gr.ant of aregistralion CIlrtlficate,alongwith a copy , bflne' resoh1tion l:liilypassed bytJic Gram PiUichayafin support oJ the .. 1 Chapter Ins. by MP43 of 1997 (5-12-1997).
2 Ss.61~A to 61.G ins. by MP 43 of 1997 [5. .12-1997} and thereafler S. 61-Asuhs. by MP 21 of2013 [24-4-20131.
See old provisIons in "Previous Provisions", given at the_end of lhis chapter.
3 Subs. by MP 21 of 20 13 [24-4-2013] for words "Suh-Divisional Officer {Revenue)".
I
I r
1
8.61 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHL, 1993 (PAllO!! 'I
I
I
a mela:
Provided th"t the State Government. may by notification, declare any market or mela to be public market or public mela and the public market or public mela.as the case maybe. so declared shall vest in the Janpad Panchayat.
(21 The State Government may make rules to regulate the market or the mela specified in sub-section (1).
Rules:- The State Government has made the followingrules in el
"Regulation of Markets arid Melas' Within the Gram Panchayat Areas Rules, 1994." .
59. Powers of Janpad Panchayat to tum, divert, discontinue or close roads.-A Janpad Panchayat may. with the sanction of the prescribed authority. turn. divert. discontinue or permanently close any road which is under the control and administration of. or is vested in the Janpad Panchayat.
60. Encroachment upon road and land vested in Janpad Panchayat.- (I) Whoever erects or encroaches or obstructs any road. street. land. building or structure which vest in the Janpad Panchayat shall on cOllvictionbe punished with a fine. which may extend to I[one thousandriipeesl.' ..... '. ... .,
(2)The CWefExecutive Officer shall have power to remove any such obstruction or encroachment and the expenses of such removal shall be paid by the person who has caused the said obstruction or encroachment and on his fallure to pay. the same shall be recoverable as an arrear of land revenue: '
Provided that before proceeding to remove any such obstruction or encroachment. the Chief Executive Officer may. by a written notice. call upon the person who has caused such obstruction or encroach- ment to remove it within the time specified in the' notice. or show;cause .... as to why the same should not be removed.
(3) Nothing in this "ection shall prevent a Janpad Panchayat from allowing any temporary occupation of erection on. the places men- tioned in sub-section (I) on occasions of festivals and ceremonies for such period as it may deem fit. in such manner so as not to cause inconvenience to the public or any individual.
61. Powers to' compromise.-A Panchayat may. with the previous sanctions of the prescribed authority. compromise any suit instituted by or against. it or any claim or demand arising out of any contract entered Into it under this A.cton such ~erms as it JI1aydeem fit.
1 Subs. by M.P. 26 of 1994 [30.5.941.
125
• • (PA)lQS PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 S.4[56.A may be punished with fine, which may extend to I[one thousand] and .ill case of continuing offence with further fine which may extend to ~ltwl'nty rupees] for every day during which such encroachment,
"f)Ii~ffuctions or projection continues after the date of first conviction
",kin',stich offence, '(i) Notwithstanding anything contained in sub-section (1), the Qiiill,~Panchayat shall have power to remove any such obstruction or , f;ll'''''(,/tchment and to remove any crop unauthorisedly cultivated on
"""&\llg or any other land not being private property and shall have , .the)1Kepower to remove any unauthorised obstruction or encroach-
. 'ment or projection of the like nature in any open site not being private ,p'rqperty, whether such site is vested in Gram Panchayat or not and the expenses of such remoyal shall be paid by the person who has c
3[Provided that notwithstanding anything contained in sub-section
(1) and this sub-section ifthe Gram Panchayat resolves to remove any hindrances, obstruction or encroachment on any land vested in the State Government it may refer to the Tehsildar to remove such hindrances, obstruction or encroachment from such land and the Tehsildar shallpqlcl'ed to do sounder-the provisions. of the Madhya Pradesh Land Revenue Code, 1959 (No.20 of 1959)].
(3) Notwithstanding anything contained in this section the Gram Panchayat may allow any temporary occupation or erection in or putting projection over any public piace for not exceeding ten days in such manner so as not to cause inconvenience to the public or any individual, on occasions of festivals and ceremonies in accordance with the byelaws made under this Act.
(4)The Gram Panchayat shall not pass any order in the exercise of powers under this section -until the person concerned has been given a reasonable opportunity of being heard.
4[56-A. Delegation of powers of Gram Panchayat under Section 55 and 56,-ln case of a Special Economic Zone, the powers of Gram Panchayat under Section 55 and 56 shall be delegated to the Develop- ment Commissioner. I
57. Powers to name streets and number of build Ing.-The Gram Panchayat may cause a name given to any street and may also cause a number to be affIxed to any building and from time to time, cause such name of.streets and number of buildlhgs to be altered.
58. Regulation of markets and melas. -(1) Save as provided in the Madhya"Pradesh KrIShiUpaj MandL
2 Subs. by M.P. 26 of 1994 [30.5.94J.
3 Subs. by MPAct 28 of 1998 [4-9-1998J.
4 Ins. by MP Act 18 of 2007 w.e.f. 25-5-2007.
,
; \ j
126
8.56
• PANCHAYAT RAJ AVAM GRAM SWARAJ ADHl., 1993 (PA)107
,
'.
(2) If any person erects. alters. adds to or reconstructs allYbuilding without the permission of Gram Panchayat and contrary to any such conditions under which permission has been granted the Gram Panchayat may by WIitten notice direct such person to stop the erection. alteration, addition or reconstruction and to alter or demolish such erection, alteration, addition or reconstruction, as It may deem necessary In the public Interest within a period specified In notice.
(3) If any person falls to comply with the dlrectlOJjs contained In the notice served under sub-sec,tlon (2)by the Gram»8.nchayat within the peIiod specified In such notice, the Gram Panchayat may, Itself take such 'lctlon as required to be done by such persons at the expense of such person which shall be paid by him within thirty days from the date on which a demand notice has been served by the Gram Panchayat. On failure to pay the expenses within specified peIiod, the
same shall be recovered as an arrear of land revenue.
I((3-A) Notwithstanding anything contained In sub-section (3) whoever contravenes any provision of this section or the rules or byelaws made thereunder or the conditions of permission granted by the Gram Panchayat or falls to comply with any lawful directions or requisition made under any of the said provisions may be prosecuted by the Gram Panchayat or the officer authoIised by the State Govern- ment for this purpose and on conviction he shall be punished with simple Imprlsomn"nt wl1l!'l1il1ay extend. to siJ
(4)An appeal may be preferred to the prescribed authoIity from any direction or notice of the Gram Panchayat under sub-section (2) and the decision ,ofthe prescIibed authoIity on such appeal shall be final.
56. Hindrances. obstructions and encroachment upon public street and open sites~-(l) Whoeverwitll.lnthe Gram,panchayatarea causes any hindrance: obstruction or encroachment over any public street or open site or upon any drain In such street-
(a) by building or setting up any wall, fence, rail, post, stall, verandah. platform, plinth, step or any other structure; or
(b) without WIitten permission of the GramPanchayat or con- trary to the conditions mentioned In such permission by putting up any verandah, balcony, room or other structure so as to project over any public street or upon any drain In such street; or \
(c) by unauthorlsedly removing earth, sand or other mateIial from any site; or
(d) by unauthoIisedly cultivating any grazing or other land, I Ins. by M.P.Act 5 of W99 15.4.19991.
127
POWERSOFPANCHAYATS
; As provided in Schedule IV-5, fishing lease granted by the District Panchayat is as per guidelines of the State Government. Matsaya Udyog Sahakari Samiti v. State of M.P., 2007(2) MPWN 63. , Rules:- The State Government has made the followingrules in exercise of the powers conferred by this section. These Rules shall be found under Rules given separately.
"Panchayat Shiksha Karmis (Recruitment and Conditions of service) Rules, 1997"
8.54
.. ".,-
COMMENTARY
(PA)I06 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993
54. Powers of Gram Panchayat as to public health facilities and safety.-Subject to the rules as the State Government may make in this behalf the Gram Panchayat shall have power:-
(I)to regulate the offensive or dangerous trade; (iiI to remove the structures and trees;
(iii) to maintain the sanitation, conservancy, drainage, waier works, sources of water supply;
(Iv)to regulaJe the use. of water;, .._ "
M to regulate '~la~ght.~r~Tarli~als;' ,
, (vi) to regulate establishment of workshops, factories and other industIial units;
(vii)to ensure environmental control; and
(viii)to carry out such functions as are necessary by or under the provisions of this Act.
Rules:- The State Government has made the followingrules in exercise of the powers conferred by this section. These Rules ,~hallhe found under 'Rules given separately. ,.", ""' .. ,-
1. "Gram Panchayat (Regulation of Slaughter House) Rules, 1998"
2. "Gram Panchayat (Regulation of Offencive or Dangerous Goods Trades) Rules, 1998"
3. "Gram Panchayat (Power relating to removal of structiures and trees)Rules, 1999"
4. "Gram Panchayat (Sanitation, Conservancy and Prevention and Abatement of Nuisance) Rules, 1999". .
:55. ,Control of erection ofbuildlng.J(l) Subject to the provisions of this section no person shall erect any building or alter or add to ,any ...j;Xisting_buildiRgor reconstruct, any 'bulldlflg Without the pei ntlssion in writing of the Gram Panchayat and except in accordance With byelaws made in this behalf under this Ad. Permission shall be presumed to have been granted if no refusal'of such permission is communicated by the Gram Panchayat within forty five days of the receipt of the application.
128
• •• •
8.53 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PAlI05
1
\ Zila Panchayat of the district and all the assets and liabilities and functions of the said Agency shall stand transferred and be vested in •. and be discharged and performed by the Zila Panchayat concerned. (b)Notwithstanding anything contained in this Act. or any rules or byelaws made thereunder. the pay. allowances and other benefits of all permanent employees of District Rural Development Agency. on the date of commencement of this sub-section shall be the existing pay .
. allowances and other benefitsl.
COMMENTARY
Sub.section (1), clause (xii).- An employeeof one Gram Panchayat cannot be transferred to another Gram Panchayat. Power of Janpad Panchayat cannot beequated to that ofthe State Government under S.58(5) ofM.P.Municipal CorporationAct.Biharilal Jaiswal v. State of M.P., 2002
(2) MPHT 77.
53. Power of State Government in relation to functions of Panchayats.-1[(11 Ha).subject to such conditions as may be specified by general or special order issued by the State Government. the Panchayat at the appropriate level shall be entrusted such powers. alongwlth budget and staff as may be necessary to enable them to function as instituti()n of self Government in relation to matter lIsted
. in Schedule IV, including' preparation of plans.'firiplemeritation'.of.. .. schemes for economic development and social justice and other duties and functions assigned to them under sections 7. 49. 49-A, 50. 52 and Chapter XIV-A.]
(b) The State Government may by notification endow Panchayats at the appropriate level with powers and responsibilities for the selec- tion. recruitment. appointment and management of any cadre or cadres of employees required for the efficient implementation of schemes. subject to the staffing pattern approved by the State Govern-
. ment and such other conditions as-it may deem fit]._ . (2)The State Government may. by general or special order. add to any of the functions of Panchayats or withdraw the functions and duties entrusted to such Panchayats, when the State Government undertakes the execution of any of the functions entrusted to Panchayat. The Panchayat shall'not be responsible for such function~ so long as the State Government does not ..re-entrust such functionb I,) the Panchayats.
1 Sub-sec. (1) Subs. by MP 43 of 1997 (2-10-1997H and thereafter el.(a) of sub-sec.
(1) again subs. by M.P. Act No. 26 of 2012 [23-5-2012). Before substitution Cl. (a) was as follows:-
. ". (a) Subject to such conditions as may be specified by general or special order issued by the State Government. the Panchayat at "the appropriate levei shall have the .powers and authority as may be necessary to enable them to function as institutjons of self government in relation to m~tters listed in Schedule IV, including preparation of plans, implementation of schemes for economic development and social justice, and other duties and functions assigned to them under Sections 49. 49-A. 50, 52 and Chapter XIV-A." "
129
Government;
(iii) co-ordinate, evaluate, and monitor activities 'and guide the Janpad Panchayat and Gram Panchayat;
(iv) ensure overall supenrision, co-ordination and consolidation
of the plans prepared by the Janpad Panchayat; .
(v) ensure the execution of schemes, works. projects entrusted to It by any law and those assigned to It by the Central or State Government;
(vi) ensure the execution of transferred or delegated functions. works. schemes and projects of the Central or State Govern-
ment;
(vII) reallocated to Janpad Panchayats and Gram Panchayats the funds made available by Central or State Government per-
taining to the transferred functions works, schemes and
projects, as per the norms fixed by the Central or State
Government;
(vIII) co-ordinate the proposals for grants for any speCialpurpose received from the Janpad Panchayat and forward them to the State Government;
(Ix) secure the execution of plans, projects, schemes or other works common to two or more Janpad Panchayats;
(x) execute 'works.' .schemes' 'and 'projects throliglf'Grarrf""
Panchayat or through the executing agencies transferred by the State Government to 'Pahchayats. Irrespective of their
source of fund;
(xl). advise the State Government tin development activities, protection of the environment, social forestry, family wel- fare, welfare of the dlsabied, destitute, women, youth, children and weaker sections of the society; (xli) administer and control the employees appointed and posted
. in, I'anchayats including staff transferred by-the State'-- Government to the Panchayals;
Explanation.-The administration and control of the staff trans- ferred by the State Governments shall Include the exercise of such power as may be defined by the State Government from time to time by special or general order;
(xiII) take all necessary measures to mobilise the resources by exercising the powers entrusted to It by any law-or the Central or State Government;,
.(xiv) exercise and perform such 'othe" powers and functions as the State Government may confer or entrust upon It]. IH2)(a) Notwithstanding anything' cohta:iiled in' the Madhya Pradesh Societies Registrlkaran Adhlniyam, 1973 (No.44 of 1973) or any other State enactment for the time being In force, the District Rural Development Agencyof the district shall stand merged with the
1 Subs. by MP43 01199712-10.1997]. .. •
•(PA)104 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993
8.52
••
[
130
.. ..• ~. ••• ~!'
. ,'.
8.52
PANCHAYATRAJAVAMGRAMSWARAJ ADHI.,1993(PA)103
ment block within its jurisdiction, as the case may be, and the functions and schemes assigned to such block by the State Govern- ment shall be implemented under the supertntendence, directions and "- control of the Janpad Panchayat in accordance with the instructions ' issued by the State Government from time to time. Rules.-The State Government has made the following rules in exertse of the powers conferred by this section. These rules shall be found under Rules given separately.
"JANPAD PANCHAYAT (MANAGEMENT OFFERRJES) RULES, 1999"
51. Entrustment of certain functions of State Government to Janpad Panchayat.-(I) The State Government may entrust, to a I[Janpad Panchayat ,or Zila Panchayat] functions in relation to any matter to which the executive authortty of the State Governmenl extends or in respect of functions which have been entrusted to the State Governm~nt by the Central Government and the 2[Janp~(', Panchayat or Zila Panchayatl shall be bound to perform such fUllc- tions. It shall have necessary powers to perform such functions.
(2) Where functions are entrusted to a 3[Janpad Panchayat or Zila Panchayat]under sub-section (1), the 4[Janpad Panchayat or Zila Panchayat] shall in the discharge of those functions, act as an agent of the State Government.
(3) There shall be paid by the State Government to the 5[Janpad Panchayat or Zila Panchayat] such sum as may be deemed necessary fot discharging the functions entrusted to it under this section .. '
(4) The 6[Janpad Panchayat or Zlla PanchayatJ shall, for the purposes of discharging the functions entrusted to it under this action, be under the general control of the State Government or any other authortty appointed by it and shall complywith such directions as may from time to time be given to it. '
52. Functions ofZila 7[Panchayatl ..8[(I) subjectto the provisions of this Act and rules made thereunder and subject to policy, directions, I instructions, general or special orders as may be issued by the State i' Government from time to time, it shall be the duty of Zila-Panchayat - ----
I to-
(I) prepare annual plans for economic development and social justice of the distrtct and to ensure the co-ordinated im- plementation of such plan in respect of the matters trans- ferred to Panchayats;
(ii) prepare annual plans in respect of the schemes entrusted to it by the Law and those assigned to it by the Central or State .' .
1 Subs. by MP 43 of 199715-12-19971.
2 Subs. by MP 43 of 1997 15-12-1997J. ~ Subs. by MP 43 of 1997 15-12-1997J.
4 Subs. byMP 43 of 199715-12-1997).
5 Subs. by MP 43 of 1997 [5-12-1997).
6 Subs. by MP 43 of 1997 15-12-19971.
7 Subs. for "Parlshad" by MP 26 of 1994 130-5-19941.
8 Subs. by MP 2 of 1997 [7-1-19971.
131
Iii' \.Ii, , (I'A)102 PANCHAYAT RAJ AVAM GRAM SWARM ADHI., 1993 8.50
"'1 i
,,
shall be the duty of the J anpad Panchayat to-
(i) prepare the annual plan in respect of the schemes of economic development and social justice entrusted to it by the Act and those assigned to it by the State Government or the Zila Panchayat and submission thereof to Zila
,
Panchayat within the prescribed time for"integration with I. the district Panchayat plan;
(Ii) consider and consolidate the annual plan in respect of the scheme of economic development and social justice of all Gram Panchayat and the Janpad Panchayat and submis- sion of the consolidated plan to Zila Panchayat;
(iii) prepare plan of works and development schemes to be undertaken from Janpad Panchayat Fund;
(iv) undertake regional planning and infrastructural develop- ment within the Janpad Panchayat;
(v) sanction. supervise, monitor and manage the works of
development schemes fromJanpad Panchayat funds and for this purpose incur expenditure therefrom; !
(vi) ensure the execution of schemes, works. projects entrusted to it by any law and those assigned to it by the Central or State Government or Zila Panchayat;
(viI) Implement; execute; supervise,:monitor,and.manageW9rk~." .,
schemes
Programmesandprojects throughGram Panchayats or through executing agencies, transferred by the State Government to Panchayats;
(viiI) recommend for the consideration of Zila Panchayat any works or'development schemes which could be taken up by the Zila Panchayat in the block. and indicate the extent to which local resources are likely to be available in such works
or schemes;
(ix) co-ordinate and guide the-Gram Panchayats within the block;
(x) secure the execution of plans. projects. schemes or other works common to two or more Gram Panchayats in the block;
(xi) reallocate to Gram Panchayat funds made available by Central or State Government or the Zila Panchayat pertain- ing to the transferred schemes, works and projects as per the norms fixed by the Central or State Government or the -ZilaPanchayat. as the case m,w1be;
(xii) take all necessary measures to mobilise resources by exer- cising the powers entrusted to it by any law or the Celltral or the State Government;
(xiii) exercise and perform such other powers and functions as
,
the State Government may entrust toiL] -.
(2) The Janpad Panchayat shall' control and supervise the ad- ~
ministration of the cqmmunity development block or tribal develop-
132
8.50
- .-
PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)IOI
\
I
I
I
I
State Government or Zila Panchayat or Janpad Panchayat; I[x x x)
2[(ix) consider the application for eslablishment of colonieg falling within the Gram Panchayat area as defined in section 61- A;)
s[x x x)
(xv) to exercise control over local plans resources and expendi- ture for such plans.)
4!(xvi) co-ordinate, evaluate and monitor activities of committees constituted by Gram Sabha.
. (xvii) re-allocate to Gram Sabha the funds made available by the Central Govcrnment or State Government, pertaining to functions assigned to Gram Sabha, works, schemes and projects as per the norms fixed by the Central Government or Slate Government.)
50. Functions of Janpad Panchayat.-(l) Subject to the provisions of this Act and the rules made ,thereunder, and subject to general or special orders, as may be issucd by the State Government, from time to time, it shall be Ihe duty of a Janpad Panchayat, so far as the Janpad Panchayat funds allows to make reasonable provision in the block for the followingmatters:-
(aJ Integrated Nural Development, Agriculture, SocialFbrestry, Anlnial Husbandry- and F!sliciie's,'Health ilndSanftaffori, Adult Education, Communication and Publ!c Works, Co- operation, Cottage Industries, Welfare ofWomen, youth and children, welfare of disabled and the destitutes and welfare of backward classes, family planning and sports and rural employment programmes;
(b) provision of emergency rel!ef in cases of distress caused by fires, floods, drought, earthquake, scarcity, locust swarms, epidemics and other natural calamities;
(CJ arrangemeiitiii connection wilh local pllgrimage- and fes- tivals; ,
(d) management of public ferries;
(e) management of publ!c markets, pu6l!c'melas and exhlbi- tions;and
(0 any other function with the approval of the State Govern- ment or Zila Panchayat.
5[(1-A)$ubject to the provisions of thls,'Act and rules made there- under and subject to Pol!cy,directions, instructions, general or special orders as may be Issuedby the State Government from time to time, it
1 Items (vi) to (viii) omitted by Act 3 of 2001, w.e.f.26~1-2001.
2 Ins. by MP43 of 1997[5-12-19971. '
3 Items (x) to (xlv) omitted by Act 3 of 2001, w.e.f.26-1-2001.
4 Added by Act 3 of 2001. w.e.f.26-1-2001.
5 Ins. byMP20f 1997 [7-1-1997).
133
COMMENTARY
I Items (1)'to (17)-omitted by Act 3-of 2001. w.e.f.26-1-2001.
2 Items (19) to (29) omItted by Act 3 of 200 I. w.eJ.26-1-2001.
3 Ins. by MP 2 of 1997 [7-1-1997{.
4 Items (ii) to (iv) omitted by Act 3 0(2001, w.e.f.26-1-2001.
8.49
Ss.49 & 50-M.P.Minor Mineral Rules, 1996, Rr.6 & 7._The powers vested with Gram Panchayat under the rules, cannotbe exercisedbyJanpad Panchayat under executive instructions. No rights conferred by acting on such instructions. Writ Court has jurisdiction to mould the relief. Gram Panchayat Parei v. State of M.P., 2002 (1) JLJ 73. Rules:' The State Government has made the followingrules in exercise of the powers conferred by this section. These Rules shall be found under Rules given separately.
1. "Gram Panchayat (Sanctin of Loans to The Indigent Persons) Rules, 1995"
, 2. "Gram Panchayat (Regulatiol1cofSale ifMeat (lnd Preservation) Rules,1998" .. . . . . . ... . .. .... .. - ...
3. "Gram Panchayat ~(Regulating places for disposal of deqd bodies, caracases and other offensive matter) Rules, 1998" . Model Byelaws:- The State Governmenthas also made various model byelaws in.exercise of the powers conferred by this section. These byelaws shall be found under Model Byelaws given separately. 3[49-A. Other functions of the Gram Panchayat.-Subject to the provisions of this Act and rules made thereunder and subject to policy, directions, instructions, general or special orders as may be issued by the State Government from time to time. It shall be duly of the Gram P
(i) prepare annual plans for economic development and social justice of Panchayat area and submission thereof to the Janpad Panchayat within the prescribed time for integration with the Janpad Panchayat plart:
4[X x xl
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(v) ensure the execution of schemes, 'works, projects entrusted to it by any law and those assigned to it by the Central or .. -" ' ..- --'-' ._ .•.....--~" ..... . ".' - . - - CHAPTER VI-FUNCTIONS OF PANCHAYATS
49. Functions of Gram Panchayat.-It shall be the duly of a Gram Panchayat in so far as the Gram Panchayat funds allows to perform within its areas the following functions:-
1Ix x xl
(18) establishment, management and regulation of markets and melas other than public markets and public melas:
2[x x xl.
(PAlIOa PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 : r . ,
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S.48 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993
(PA)99
2. Election delayed for constituting Standing Committee of Jan. pad Panchayat by two days- Holding of election, not without juris. diction.' The Panchayat Raj Adhiniyam does not contemplate that if there is a delay in holding the meetings or elections, the committees cannot be constituted at a later date. There is no other provision which gives an alternative in the event of non. constitution of 1 he Standing_Committees. Unless the provision is accompanied by some pellal consequences, the same cannot be held to be mandatory. The provision can only be said to be directory. Simply because the elections were held two days after the prescribed period for constitution of Standing Committee, the holding of election cannot be said to be without jurisdiction. Harisingh Patel v. Janpad Panchayat, 1996 MPLJ 418.
3. Rules:. The State Government has made the following rules in exercise ofthe powers conferred by this section.These Rules shall be found under Rules given separately.
"Janpad Panchayat and Zilla Panchayat Standing Committees IElec- tion of Members, Powers and Functions and Term of Members and Procedure for the Conduct of Business) Rules, 1994."
1147-A.Resignatlon.- A member of Standing Committee other than General Administration Committee and the Chairman of a Standing Committee other than cthe.General Administnition and -EducaJiorr . Committees may resign by tendering his resignation in person to the President of the Janpad Panchayat or Zila Panchayat, as the case may be, and his resignation shall take effect from the date of its receipt by the President. .
47-B. Disputes regarding validity of election of Member or Chairman.-(l) The provisions of Section 122 relating to election dis- putes and rules made thereunder shall apply mutatis-mutandis in relation to election of Member of chairman under section 46 and 47. (2)All legal proceeding relating to such election Q1spiltes pending before the State Government and its subordinate officers, shall stand transferred to the specified officers having jurisdiction under section
122.]
48. Powers and duties of Sarpanch, Up.Sarpanch, President, Vice- President ..The Sarpanch and Up-Sarpanch and the President and Vice-President shall exercise such \powers and perform such. functions, as may be prescribed.
Rules:. The State Government has made the followingrules in exercise of the powers conferred by this section. These Rules shall be found under Rules given separately.
"Powers and Functions of Sarpanch and Up-sarpanch of Gram Panchayat, Presi.dent and Vice.president of Janpad Panchayat and Zilla Panchayat Rules, 1994: .
. I Ss.47-Aand47-B.lns. by M.P.39 of 1995119.12.1995J.
135
1 Third proviso inserted by MP 26 of 1994. omitted by MP 39 of 1995.
2 Ins. by M.P. 39 of 1995 [19..12.19951. <"' •••.•• - "'-iII~h•• ~1n1":: fif lQQfl9nn "'dotJ'Fl hy MP ~? of 199417.10.941.
COMMENTARY
1. Education Committee not entitl~d to make every appoint- ment.-An Education Committee wouldbe constituted for education indud- 'lng adult:-education etc. biIf"that does not 'mean that Such Education
. J;:9!!,p;!-i~"e,,~hapbeentitled to make every appointment. When the State Government is entitled t6 exe-rCisegeneral'powers of superintendence as provided in Section 53 and Section 86 and other allied sections to have control over the Panchayats then the State Government would be entitled to issue such directions.Ajay Tripathi v. State of M.P" 2009(1) MPLJ 75 =2009 (1) JLJ 257 = 2008 (5) MPHT 195 (DB.).
8.47PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 ,
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2[(4_A)(a) Every member of the Legislative Assembly who Is a member of Janpad Panchayat; shall be ex-officio member of each Committee of that Panchayat;
(b) Every Member of Parliament who is a member of a Zila Panchayat shall be ex-officio member of any two Committees of his choice In that Panchayat; and
(c) Every Committee of Zila Panchayat shall co-opt not more than two members of the Legislative. Assembly who are members of that Panchayat, subject to the condition that a member of the Legislative Assembly shall not be member of more than two Committees.] 3[(5) Every Committee except the General Administration Commit- tee and the Education Committee shall elect from amongst Its elected members a Chairperson within such time and in suth manner a~ may be prescribed:
Provided that-
(I) The President of the Janpad panchayat or Zila Panchayat, as the case may be, shall be officio Chairperson of the ___General Admlnlstr"tion Committee;
(i1) the VI~e -Pi-esident~fthi:Ja-;"pad P,uicbaya:f(jtZila~~ Panchayat, as the case may be, shall be ex officio-Chairper- son of the Education Committee; and
(iii) the President and Vice-President of the Zila Panchayat and Janpad Panchayat, as the case may be, shall not be member of any Committee other than the Committee of which he Is the Chairperson by virtue of clauses (i) and (i1) of this proviso.]
(61 Every <::o!,unltleeshall, In relation to the subject assigned to It exercise such powers and l'erlormsuch-
(7) No person shall be.a member of more than three committees other than General Administration Committee at a time.
(PA)98
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(PA)96 PANCHAYAT RAJ AVAM GRAM SWARAJ ADH1., 1993
8.45
45. Reconsideration of subjects finally disposed of by \ Panchayats.-No subject once finally disposed of by Panchayat shall within six months be reconsidered by it unless the recorded consent of not less than three fourth of its members entitled to vote has been . "
obtained thereto or unless the 'prescribed. authority has .directed!ts -- . reconsideration.
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can call a meeting and in case none of the above eventualities happens and if members are keen to discuss the matter then they can requisition the calling of a meeting. Where after calling a meeting of the Gram Panchayat, the Sarpanch locked the panchayat premises, it wouldnot giveany authority to Upsarpanch to hold the meeting at another place. This is because notice regarding place ofmeeting is to be given to other members also. The notice is not only with regard to agenda but also with regard to place ofmeeting. Under the circumstances any meeting so held at another place cannot be said to be a valid meeting and the resolution passed thereat will not be effective.Ramkishan v. State of M.P., 1998 (1) MPLJ 589.
2. Rules:- The State Government has made the following rules in exer- ciseofthe powers conferred bythis section.TheseRules shall be found under Rules given separately.
"Procedure of Meeting and Conduct of Business Rules, 1994." !
SUBORDINATE AGENCIES
46. Standing Committees of Gram Panchayat.-(l) A Gram Panchayat rna)' for discharging its functions and duties, constitute standing committee not exceeding three and such committee shall exercise such powers as may be assigned to them by the Gram Panchayat. The committee shall be under the general control of the Gram Panchayat.
. (2) No person shall be a member of more than two commlttees ata time.
(3) The term of office of the members of standing committee and the procedure for the conduct of business of the standing committee shall be such as may be prescribed.
Rules:- The State Government has made the followingrules in exercise. of the powers conferred by this section. Th~se Rules shall be found under Rules given separately.
"Gram Panchayat (Term ofOJfice of Members of Standing Committee and procedure for the Conduct of Business) Rules, 1994'
47. Standing Committees of Janpad Panchayat and Zila Panchayat.- (I) Every Janpad Panchayat and every Zila Panchayat shall from amongst Its 1[elected members) constitute the following standing committees, namely:-
1 Subs. by M.P. 26 of l!J~H1:10.5.94). \
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8.44 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)95
". -, shall be posted in the office of the Panchayat. No quorum shall be necessaI)'. for sUfh postponed meeting. and no new subject for con- sideration may be brought before such meeting.
(4) The President or Sm'panch shall call a meeting of Zila Panchayat. Janpad Panchayat or GraIn Panchayat. as the case may be. atleast once every month. If the President or Sarpanch fails to call the meeting in any month the l[the Chief Executive Officer of the Zila, Panchayat or Janpad PanchaY'lt or Secretary of the Gram Panchayat as the case may be] shall issue a notice of the meeting of the Panchayat concerned as soon as twenty five days elapse after the date of the last meeting. .
(5) A report about the income and expenditure of the Gram Panchayat between the period oflast meeting and the current meeting as well as the cumulative income and expenditure in the current financial year up to the current meeting shall be placed before the Gram Panchayat. in addition to any other subjects. by the SecretaI}' of Gram Panchayat and such report shall be discussed by the Gram Panchayat. In case of Janpad Panchayat and Zila Panchayat such report. shall be 'placed 2[by the Chief Executive Officer] in its meeting once in three months.3 [The report of income and expenditure shall be prepared according to the approved annual budget estimate alongwith .the comparative statement of figures which shall be placed in the meeting by.the Chief.Executive Officer.]
(6) If more than Hftypercent of the members of the Panchayat give requisition in writing for a sped'll meeting of the Panchayat. the President or Sarpanch, as' the case may be. shall call such a meeting Within seven days of receipt of such requisition. If the President or Sarpanch as the case may be. fails to call the meeting on such requisition the members who have given requisition of a special meeting may call the meeting themselves and thereupon 4[the Chief Executive Officer of the Zila Panchayat or Janpad Panchayat or th.e SecretaI}' of .the Gram Panchayat as the case maybel.-shalUssue notice of the meeting.
(7) If the President or the Sarpanch. as the case may be, fails on at least three occasions to act in accordance with sub-section (4) or sub-section (6). he shall be liable to be removed from his office under Section 40 and the provisions of Section 40 shall be applicable to him. who has been so removed.
COMMENTARY
1. Meeting of Gram Panchayat.Vali4ity of proceedings.-The power to call the meeting ofGram Panchayat vests in the Sarpanch. If for anyreason,.he doesnot call the meeting then the Secretary ofthe Panchayat
1 Subs. by M.P. 26of 1994[30.5.941.
2 Subs. by M.P. 26of 1994[30.5.94).
3 Substituted by M.P. Act No. 26of 2012[23,5-2012Jfor the following:-
"The reports shall be prepared in such manner as may be prescribed. ~
4 Subs. by M.P. 26of 1994[30.5.94).
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Rule 36.State Election Commission M.P. v. Ras Bihari, 1995JLJ 651=AIR 1995MP 245 (DB). ;
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PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 S.42-A (PA)94
1. Nomination paper accepted- Acceptance cannot be set at naught- Rule 35(8).- There is no provision in the '1')es.whkhempowets the Returning Officer or ,my other authority to reject nomination paper which was earlier accepted by a person acting as a Returning Officer. Ranvirsingh v. State of M.P., AIR 1995MP 271.
2. Rules:- The State Government has made the following rules in exercise ofthe powers conferred by this section.These Rules shall be found under' Rules given separately.
"PANCHAYAT NIRVACHAN NIYAM, 1995" CHAPTER V - CONDUCT OF BUSINESS AND THE PROCEDURE
AT THE MEETING OFTHEPANCHAYATS,
44. Procedure of meeting,-(l) Subject to the proVision of this Act, the procedure of meeting and conduct ofbusiness of a Panchayat shall be such as may be pres('ribed.
(2) The chair person of a Panchayat and other members of a Panchayat whether or nol chooses by direct election from territorial constituencies shall have the light to vote In the meeting of the Panchayats. .
(3) 31The quorum for a meeting of Zil~ Panchayat and Janpad Panchayatshall be one-third, and for a meeting of Gram Panchayat shall be one-half, of the members constituting the concerned Panchayat for the time being]. If there be no quorum present at a meeting. the presiding authOrity shall, adjourn the meeting to such date and hour as may be fixed by It. A notice of the meeting so fixed f Ins. by M.P. 26 01 1994 (30.5.94].
2 Subs. by M.P. 26 01 1994 (30.5.941.
3 Subs. by MP 43 of 1997 [5-12-19971. I[42-A. Power to appoint officera and staff and to assign duties and functions to them.-(l) In the exercise of powers under Section 42, the State Election Commission may, in consultation with the State Government, appoint officers and members of staff for conducting elections to panchayats.
(2) The State Election Commission may assign such' duties and functions to officers and members of staff appointed under sub- section (1) and invest such officers and members.of staff with such powers and in relation to such areas as it may deem necessary or consider fit in relation to conduct of elections and matters connected therewith or incidental thereto.)
.2[43. Power to make rules.-The State GO\'crnment shall in consult- ation with the State Election Commission make rules for the prepara- tion of Electoral rolls and conduct of all Elections to the Panchayats.]
COMMENTARY
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8.42 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)93
(3) Any Intimation under sub-section (1) shall be final and Ir- revocable.
(4\ For the purposes of this Section a person shall be deemed to be elected on the date of declaration of the result. CHAPTER IV-CONDUCT OF ELECTION
42. Commission conduct of Election.-The superintendence, direction and control of the preparation of electoral rolls for and the conduct of all elections to he Panchayats shall be vested In the State Election Commission.
COMMENTARY
1. Countermanding of election by State Election Commission. Validity andjurisdiction.-Article 243.K ofthe Constitution and seetin 42 vest in the Commission, superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, election and Rule 17(3) of the Rules confers on the Commission power to issue such special or general orders or directions which may not be inconsistent with the provisions ofthe Act for fair and free elections. Rule 33(6) declares that the order accepting or rejecting the nomination paper passed by the Returni ng Officer shall be fmal. Article 243-0(b) is enacted to prescribed manner in which and the stage in which this ground and other grounds which may be raised in law to ~all the. election inquestj.on_~QJll
implication, it fbllowsfrom the language ofthe provision that the:;;' grounds cannot be urged in any other manner or at any other stage and before any other court. The scheme ofArticle 243-0(b) read in the light ofRule 33(6) is that the decision of the Returning Officer shall be final, subject to review only by the Election Tribunal in a duly filed election petition. The order passed by the Returning Officer accepting or rejecting the nomination paper is not susceptible to review at any other stage or by any authority other than Election Tribunal. It is significant to note that the rules do not provide an appeal to the Commission or revision suo motu or otherWIse to the Commis- sion against the order of the Returning Officer; These clrcurllstances'make it clear that whatever be the amplitude ofthe power vested in the Constitu- tion under ARticle 243-K and section 42 of the Act, it does not take in the power of upsetting the final decision arrived at by the Returning Officer accepting or rejecting the nomination paper. The Election Commission has no jurisdiction to interfere at that stage in that matter. The power of countermanding the poll leading to fresh election cannot be exercised in the case of rejection of nomination papers of all candidates except one par- ticularly in view of Article 243-0(1)and rule 33(6) of the Rules. Wrongful
. ~c£eptap~eo!reje~ti!l)l_ofgo..min",tiollpapeds a,gr0lln!lwhich could be urged in election petition. State Election Commission v. Ras Bihari, 1996 MPLJ 966 (DB).. -. - -
2. Jurisdiction of Election Commission.- Where some nominatiOn 1'''1'''''' are rejected by the Returning Officer, resulting in leaving one candid"le only in the field, the order cannot be challenged or suo motu revised by the Election Commission. The order of the Returning Officer is final subjecl to an order passed in revision by the prescribed authority under .. ~
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8.91 (PA)150 PANCHAYATRAJAVAMGRAMSWARAJ ADHI.,1993,
- 2008(1) JLJ 329 = 2008(1) MPHT 254[DB].
[4] Challenging to resolntion • S.91 not applicable. suo motu powers ofthe State Government or Prescribed Authority.-It is worth noting that certain resolutions of the Gram Panchayat are assailable in a different manner as provided in other provisions of the statute. The resolu- tions which would have been specifically challengeable in a different manner under the Act would not come under the purview of section 91 but other proceedings of the-Gram Panchayat can be challenged by the substantive provision.
Tl)e State Government has not framed rules by providing a forum. Under these circumstances it would be apposite and seemly to hold that the Person' aggrieved can bring his grievance to the notice of the State Govern- ment and the State Government should take a decision under section 85 of the Act.While taking the said decision the State Government shall be guided by the concept of promptitude which is an intrinsic and inseggregable facet of suo motu exercise ofjurisdiction. Be it noted, while exercising suo motu power under section 85 of the Act the State Government shall be guided by the parameters provided therein and the nomenclature given to a proceed- illg under section 85 of the Act. Sagar Machhua Sahakari Samiti, Seoni v. Chief Executive Qfficer, Janpad Panchiiyilt, Seani & Anr., 2008(2) MPW _- 194 = AIR 2008 (NOC) 1388 = 2008(1) JLJ 329 = 2008(1) MPHT 254 [DB]. [5]From the intent ofthe Adhiniyam, ~o powers are confe~edupon the- authorities for cancelling the resolution in a proceeding under S.91 of the Adhiniyam. Resolutions ofPanchayats cannot be set aside. Sagar Machhua Saha/wri Samiti, Seoni v. Chief Executive Officer, JanpadPanchayat, Seoni & Anr., 2008(2) MPLJ 194 = AIR 2008 (NOC) 1388 = 2008(1) JLJ 329 =
2008(1) MPHT 254[DB].
[6]Appeal shall lie &Appellate Authority have necessary powers .-The provisions of an Act cannot be interl'reteu oy referencet,dhe-- provisions of a Scheme made by the Government to give effect to the provisions of the Act, but has to interpreted by reference to the provisions of the Act. Hence an appeal would lie against an order of appointment of- Panchayat Karmi issued by Sarpanch ofGram Panchayat under Section 91 ofthe Adhiniyam read with Rule 3 ofthe Rules of1995. Held, while deciding the appeal, the Appellate Authority will have all necessary powers to grant relief in a case where he decides to allow'the appeal and such powers will also include the power to decide whether the selection made by the Gram Panchayat by-adopting a resolution was not correct either on facts or in law. Further held that the view taken by the learned Single Judge in Ramlakhan _Rawat v. ,State of M.P., 200.Q(2).MPLJ 176 = 20010) JLJ 280, is not correct --in jaw, [OVERRULED].Devidayal Raikwar v. State of M.P., 2009(1) JLJ 7 = 2008(4) MPLJ 647 = 2008(3) MPHT 505[DB].
[7] Objection at last stage, reje.ctable.-Gram Panchayat Ka~mi ap- pointed by majority
141
8.91
•
PANCHAYAT RAJ AVAM GRAM SWARAJADHI., 1993 (PA)149
,
t the State Government brought to the notice of this Court a INotification dated 30th January, 1996. This Notification has been issued by the State Goverriment in exercising the powers, conferred on the State Government under Part "511
of Rules of Business. On the basis of the aforesaid, it is clear that the State Government under the Supplementary Instructions No. 13 of Business Uules has conferred the power on the Honble Minister to exercise the revisional jurisdiction under the Panchayat Raj Adhiniyam, 1993. According to the same, the Hon'ble Minister shall exercise the powers against the orders passed in appeal/revision. Paragraph 2 of the aforesaid Notification also indicates that against the orders passed by the Commis- sioner exercising the appellate/revisionaljurisdiction, the Hon'ble Minister, Panchayat and Village Development Department shall exercise the power to hear the case. Therefore, the Minister's order Annexure P-2 to the petition is proper and second revision thus would be maintainable. Dilip Kumar v. State of M.P., 2006(3) MPLJ 38.
4.Appeal or revision.-[l]1ffaintainability of Appeal.-Appointment of petitioner as Panchayat Karmi by resolution. Under Section 91 of Act, order appointing Panchayat Karmi is appealable and not a resolution. Rajkumar Kushwaha v.State ofM.P., 2013(1) MPLJ 238 = 2013(1) MPWN 24 = ILR 2013 MP 53.
[2) Termination of services ofPanchayat Karmi by passing a resolution. No further orders were issued and instead the services of respondent No.5, PanchayatKatmi were bt6tight W an' end by'the said tesolutiim: itself. The''', "".,' resolution in substance amounts to an order. Appeal against the said resolution was maintainable before the SUO'. Chandrakant Kushwaha v. Collector,Katni, 2011(3) MPLJ 196 = 2011(3) MPHT 19.
See also:
Jitendra Singh v. Rambabu. 2012(3)MPW 450 = 2012(3)'JW90 = 2012(3) MPHT 183;
Comments under Section 85 of the Act; and
Comments under M.P. Panchayats (Appeal and Revision) Rules.
1995.
[3]Resolution is a Proceedings ofPanchayats.-A panchayat being a body corporate has to act by passing resolutions. There can be no doubt that certain resolutions can be fruited and ripened and become orders. Some basically shall remain strictly in the frame or compartment of resolutions .. The question would be whether a resolution is a proceeding because section 91 of the Act uses the term 'proceedings'. Section 91 of the Act clearly stipulates that an appeal or revisionwould',lie against a proceeding of a panchayat and other authorities to such authority and in such manner as
. m.'!yJ).e..Rr~~c.':i!I~g,AP.FQ~,~~qi!;lgqf.tI:!€.Qr'!lllYi'-ncMy,l!tis,!ssajl(lble in an appeal or revision. The Gram Panchayat functions by passing resolutions which eventually may fructifY and become orders but there cannot be denial ' , ,,{tl,e 'factthiita resoiutf(;fi' J.t" pro;,eed;~g~f theG~aiU' P";'~hayat. Sagar Machhua Sahakari Samiti, Seoni v. Chief Executive Officer, Janpad Panchayat, Seoni & Anr., 2008(2)MPLJ 194 = AIR 2008 (NOC) 1388 =
1 The text of saId notification in Hindi is. published in 2006 (3) MPW 40. but its Gazette publication reference is not mentioned hence enforcement is doubtful.
142
[3JResolution passed by Gram Panchayat. Appeal Before Collector against the resolution not maintainable. Jurisdiction exercised by the Collector and the Commissioner in quashing the resolution is unsus- tainable. Phool Singh Marko v. State of M.P., 2010(3) MPW 66. C. Necessary parties.-Appeal filed by candidates before Additional Commissioner in the matter of appointment of Shiksha Karmi. Appel- lants at whose instance the impugned order is passed are not im- pleaded as party. This is a material lacuna. Court cannot interfere into the matter in the absence of the appellants at whose instance the impugned appellate order was passed as they are necessary parties. p'etition suffers from misjoinder of the parties. Chakresh Kumar Jain 4- State of M.P., 2012(1) MPW 461 = 2011(5) MPHT 162 'Rule 5:
A. Jurisdiction.-The respondent NO.5, by suppressing the fact that the writ petition preferred by him has already been dismissed has preferred a revision before the State Government. In any case, the Minister, Panchayat and Social Welfare Department cannot sit over the order passed by the Division Bench of High Court. The initiation of proceedings by respondent NO.5, before the Minister, amounts to abuse of process oflaw. Mordhvaj v. State of M.P., 2013(2) MPW 196. B. Revision.-[lJ One revision competent.- Only one revision under clause,(a) of Rule 5 lies ,either to State Government/.Co!1UI1lS-,, sioner! birectorofPancnayator c6Jiector. The'powers conferred upon them is concurrent. No second revision lies revisional order passed by any of the authorities mentioned above. 2000 (2)MPW l76 ReI.Mamta Pateria v. State of M.P., 2002'(4) MPW 196=2002 (2) JW 89=2002
(5) MPHT76.
[21 Ascribing of reasons while disposing of the revision is a must. Anita Singh v. State of M.P., 2009(2) MPW 273 = 2009(1) JW 132 =
2009(1) MPHT 392.
[3J Power of revision.-Can be exercised even suo motu. Harish Chandra Yadav V. State oIM.P., 20i2(2) MPW, 27 = 2012(1) MPHT
397.
C. Second revision.-[lJMter disposal of the revision before the Commissioner the respondent NO.5 filed the second revision before the Minister. Revision so filedwas maintainable. Ramkinkar Vishwakarrna
v. State of M.P., 2012(2) MPW 690 ':= 2012(3) MPHT 253. [21Scope of Second revision.-Second revision against the order of the Commissioner passed in first revision is maintainable., Sar- ' panch, Gram PanchQyat, BhQrjuna Khurd v. l;iaittqsh Singh, 2010{4)MPW417. ' " .'.', "'!," " ' , !3] 8ec!Jnd revision ,!!J0uld.be maintainable.-The ,question is
whether a suo motu revisional power can be exercised by the Hon'ble Minister so that the order Annexure 1','2can be said to be a valid exercise ofpower byhim or whether secondrevision shall lie ? Held, the Counselfor
(PA) 148 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993
8.91
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passed by or as to the regularity of the proceedings of an authority subor- dinate to it. Neither this section nor the rule provides that the revisional authority under the garb of exercising the revisional powers can set aside an election. An election held under the Act is neither an order nor a proceeding. Consequently revisional authority would have no jurisdiction to entertain or register a dispute under this section. The Collector, a revisional authority, had no power to entertain or register an election dispute under suo motu revisional powers. Order passed by him quashed. Amarsingh v. State of M.P., 1999 (2) MPLJ 337.
[2]On behalf of the Panchayat the Sarpanch cannot sue and file an appeal independently.-Under S.l1 Gram Panchayat being body cor. porate can sue and can be sued. The power shall not vest in Sarpanch but it will vest in the whole body of the Gram Panchayat and if the Panchayat wants to sue or to file an appeal, the Panchayat has to pass a resolution authorising either to Sarpanch, or Up-Sarpanch or to any Panch or to file . appeal or Writ Petition Or any other petition. Rule 3 of the M.P. Gram Panchayat (Powers and functions ofthe Secretary) Rules, 1999provides that executive power ofGram Panchayat shall vest in the Panchayat Secretary, who will exercise the executive power, but in these Rules also it is nowhere provided that who will sue on behalf of tbe Panchayat. Held, therefore we are of view that. Gram Panchayat is a body corporate, having power to sue or to be sued,.andthe Gram.Panchayath.as. to authorise somebody to act on . its behalf and without the resollitionby authorising' any' person to sue'of' behalf ofthe Panchayat, the Sarpanch cannot sue and appeal independently. Gram Panchayat, Bamral v. Jagdish Singh Rawat, 2008 (3) MPLJ 127 = 2008(4) MPHT 132 = 2008(2) MPWN 102 (DB).
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3. Comments under M.P.Panchayats (Appeal and Revision', Rules, 1995.- The rules are framed under S.91 read with S.95. They are applicable only the appeals and revisions which are filed under S. 91. Hukumchand v. Dheerji, 2001 (1) JLJ 229.
Rule 3: . .. . . . __.. _. _
A. Right of Appeal.-Right of appeal is not restricted to a party to the proceeding. An appeal under Rule 3 can even be preferred by any person aggrieved. Harish Chandra YadaiJ v. State of M.P., 2012(2) MPW 27 = 2012(1) MPHT 397.
B. Maintainability of Appeal.-[I] Appointment of petitioner as Panchayat Karmi by resolution. Under Section. 91 of Act, order ap. potnting Parlchayat Kanni is appealable and not. a resolution. Raj. kwnar Kushwaha v. State of M.P., 2013(1) MPW 238 = 2013(1)
. MPWN"24"=>n.R2013 MP 53. - -. -I - -. ' . .I21 Termination .of services of. Panchayat KaJwi by passIng a resolution. No further orders were issued and instead the services of respondent No.5, Panchayat Karmi were brought to an end by the said resolution itself. The resolution in substance amounts'to an order. Appeal against the said resolution was matntainable before the SDO. Chandrakant Kushwaha v. Col1ectqr,Katni. 2011(3) MPLJ 196 =
2011(3)MPHT 19.
144
• . . •
90. Disputes between Panchayats and other local authorities.-
(1) In the event of any dispute aIising between two or more Panchayats or Panchayat and any other local authoIity in any matter In which they are jointly interested such dispute shall be referred to the State Government and the decision of the State Government thereon shall be final:
Provided that if the dispute is between a Panchayat and a canton- ment board the decision of the State Government shall be subject to approval of the Central Government.
(2) The State Government, may by rules made under this Act, .regulate the "relations between Panchayats and Panchayat and other local authoIities in matters in which they are jointly interested."
Rules:- The State Government has made the followingrules in exercise of the powers conferred by this section. These Rules shall be found under Rules given separately.
"REGULATION OF RELATIONS BETWEEN PANCHAYATS AND PANCHAYAT AND OTHER LOCAL AUTHORITIES RULES, 1994"
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 authoIity and in such manner as may be prescribed .
1. General.
2. Scope of jurisdiction.
3. Comments under M.P.Panchayats (Appeal and Revision) Rules, 1995:-
Rule 3: A. Right of Appeal.
B. Maintainability of Appeal.
C. N~s:~_s~afYparties. ....
Rule 5: A. Jurisdiction.
B. Revision.
C. Second Revision.
4. Appeal or revision.
5. JurisdictionofS.D.O.
6. Rules. '.
1. General.- The appellant was workllg as Education Instructor and was handed over the additional charge of Secretary Gram Panchayat but , . later on removed from the post ofsecretary. HI'S remedy against the removal 'was byway of appeal: Ramlal Satpute v. State orM.p., 2003(1) MPLJ 119
(DB).
2. Scope ofjuris~iction.-An election under theAct can be challenged only by election petition and no other and in viewofthe provisions ofsection 1 122, an elrction to panchayat conducted or held under the Act cannot be interfered with by revisional or an appellate court. Section 91ofthe Act read
"with rule 5 ofth" Appeal and Revision Rules of 1995makes it clear that the
"revisional authority can only examine the legality or propriety ofany order
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(PA)146 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993
. C OM ME.NT AR Y
SYNOPSIS
8.90
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145
between 'negligence' and 'gross negligEmce'? The difference is of degree only. The examples of negligence, are found to be most common, because after achieving independence in 1947, persons sitting on posts of responsibility take it to be their right to become negligent and the legislature too does not mind. Punishment is given for 'gross negligence', meaning thereby an action or inaction of the type which is most unexpected. Here, it will depend upon the authority sitting in judgment to call one thing to be 'negligence' and the other 'gross negligence'. It is not possible to give an exhaustive list ofwhat may be called 'gross negligence'. ,
[4] Gross negligence means negligence which is gross, I.e. not simple. There is a distinction between negligence and gross negligence, although the exact dividing line is difficult to demarcate. "Gross negligence" connotes higher degree of negligence, it is negligence not arising merely from some want of foresight or mistake of judgment but from some culpable default. See Giblin v. McMullen, (1869) LR 2 PC 317 at 1'.337).
[5] In Black's Law Dictionary thp ,'xpression is defined as follows:- ,
"The intentional failure to, J~.rl(>rma manifest duty in reckless disregard of the consequences as affecting the life or property of another; such a gross want of care and regard for the rights of others as to justify the presumption ofwilfulness and wantonness."
[6] Petitioner found guilty of not keeping proper supervision resulting in pecuniary loss to-thesociety.,This act.amounts_t9,not;O,nlY,negligence"bpL gross negligence. Sura} Devi v. Dy. Registrar, 1991 RN 40 (HC). See also Deveshwar Singh v. Board of Revenue, 1991 RN 48 (HC)(DB);Nanhelal v. Asst. Registrar, AIR 1970 MP 39 (DB)& Shakuntala v. Board of Revenue,
1991 RN 18 (DB).
(7] It should also be remembered that the section makes liable even those persons who are not paid any remuneration by the panchayat for the work they perform. In order to hold them liable for being gross negligenet, the standard of care expected of them, giving due consideration to their education and experience, the extent of responsibility one would feel, and the onerous obligation one would like to discharge should noibe lost -sii# of. .
8. Reasonable opportunity of being heard.-[l] It is a universally accepted principle of natural justice that no one shall be condemned un- heard. The proviso to sub-section (1) specifically provides that before any recovery is made under this section" the person concerned shall be given a reasonable opportunity of being heard in the.matter. (2] Here, reasonable opportunity of being heard would mean that the person concerned should be intimated the fact that he has caused loss to the 'paneliayarBy Ills misconai1cf "fc':"ot'gross i1egligenc,tand that he is iiable to reimburse the panchayat the amount of loss so caused. The intimation - should contain each lliid"lVeryconcerned- facts constituting his liability to reimburse the panchayat.
[3] If a person does not attend the enquiry made against him inspite of notice, he cannot be heard to say that he was given no opportunity of being heard. Shakuntala v. Board of Revenue, 1991 RN 18.
For detailed commentary, kimlly see comments under SectIon 87.
I,
5.89
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PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)145
146
result. Every money or property has its ownvalue and by spending the same
or by giving the same to someone, if nothing is gained in exchange, it would
be called wastage ofmoney or property. [3J 'Misapplication' ofmoney or property means not applying the same
for a purpose for which it was meant and instead it is applied to a cause or
purpose for which it should not have been applied or spent or given. [4]The legislature has enumerated these three types oflosses caused to
a panchayat for which an order of reimbursement may be made.
6. Misconduct.-[l] When power is vested in a person or institution to act and that person acts then, his action wilJ.be called 'conduct'. The term 'conduct' may be of three types, (i) action taken in the natural course and in
a natural manner, it will be simple 'conduct', action done with great
efficiency, diligence, and application ofmind, it would also be conduct but
the type would be nice, brilliant or appreciable conduct, an action done in a hopeless manner, without application of mind ,with an intention to deceive,
d(~fraudor misappropriate, the action would be called 'misconduct', The intention here may be criminal also.
[2]Misconduct literally means wrong or improper conduct, i.e. conduct in violation of a definite rule ofaction. It ordinarily means failure to be done. An omission to dowhat is required ofa person to domay therefore constitute misconduct even though the person has not acted wilfully or maliciously. Mohammad Sheik Nathu v. Governor General in Council, AIR.l954 NAG 337 (DB). _ - . :_c __ .' - .. " '",__ _.__
7.GrossNegligence.-[ll In order to understand 'gross negligence', one should know what the term 'negligence' ineans. A person is enjoined with some duties and negligence may be caused in discharging those duties. It is
'action' in some cases and in other cas~s,it is 'inacti~m'too. A person may
be said to be negligent in his action and as well as in his inaction. In doing an act, a person may not observe the standard of care expected of a man of average standard, he may not apply his mind or he may do it absent mindedly, or he may not do it at the proper time. When a person is expected to do something at a particular time.and he does not do it, itis inaction called ... in other words negligence. One can put to loss another person by his action as well as inaction and in both of them, he can be said to have acted negligently. But where a person does not possess the ability, the qualifica- tion'lind'knowledge of the subject for doing any act and ifte does it or if he is required to do it or if he is unable to do it,. then it will not be called 'negligence' on his part.
[2]The author finds the above state ofaffairs in many fields. The modern day politics has completely overlooked education, experience and merit of a person who is put up as a candidate by some political party and who is illtimateJ:y elected by man and money po.Jer.The capability ofa person to perform the duties attached to a post is completely ignored .
. ', [3rI;' ~~b-~ectio';'(1), the expression used is 'gross negligence' which does not include 'negligence'. Ifloss is caused to a panchayat by the persons mentioned therein due to negligence, no action .can be taken against that
person under this section. But where loss is caused due to 'gross negligence'
then, that person would be liable, The question is, what is the difference
(PA)144 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993
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Provided that no recovery shall be made under this section unless the person concerned has been given a reasonable opportu')lty of being heard.
(2) If the person concerned fails to pay the amount, such amount shall be recovered as arrears ofland revenue and credited to the funds of the Panchayat l[or Gram Nlrman Samltl and Gram Vlkas Samltl] 2[or committee of Gram SabhaJ concerned.
";\,
8.89 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)143
- ,
COMMENTARY
1. Object of.-The section provides for reimbursement ofthe loss caused to a panchayat by its office-bearers or officers or servants etc.
2. Persons liable to reimburse.-Sub-section (1) enumerates a list of persons who would be so liable. It includes the following:-
(i)Panchas of Gram Panchayats;
(ii) Members of Janpad Panchayats and Zila Panchayats;
(iii) Sarpanch and Up-S.arpanch of Gram Panchayats;
(iv) President and Vice-President of Janpad Panchayats and Zila
Panchayats;
. (v) Officers and senelmts of various panchayats.
3. Liability for reimbursement.-[l] It is not each and every loss or waste of any property be.longingto tbe Panchayat for .which li"bility: oLthe __
"persons enumerated above is to be fixed.The sub'sectiim'speCificallypoints'" . - . out the type of loss etc. for which liability of some person may be fixed or determined.
[2] A person would be liable to reimburse. any loss etc. for which he bimselfhas been responsible or he has been a party who caused such loss. [3JAperson is also made responsible where the loss is caused due to his .
misconduct. What is 'misconduct' is again a question of interpretation.
Similarly such a person is also liable if the loss is caused due to his gross neglect of his duties. The expression 'gross neglect of his duties" also need to be intetpr'eteaand inidetstiJod properly, _. -- --r
4. Caused by him.- The word 'caused' as it is used in the section must
be understood in the sense of 'causa causans' meaning thereby the real
effective cause of sustaining the loss. To be more clear, the action complained of should be the real cause of sustaining the loss and not a remote cause.
5. Loss, waste or misapplication.-[l] 'The expression 'loss of money or other property' would indicate "going '\way from the possession or enjoyment of".Aperson is said to losemoney orproperty when he is deprived ofit by steaiing from him, by misappropriation or by taking forcible posses- ,_. 'Si'6fr1:ifthe"s;fme'.Anothe!' exilmple'W6tildb~-wlieii11 person'!s instigated to doan act or to enterinto a contract and consequently he suffers loss ofmoney
. ~orproperty in the deal-: - '..
[2] The expression 'waste of money or property' denotes an action by which money orproperty is either spent ormisusedwithout getting expected
1 Ins. by M.P. Act 16 of 2004, w.e.f. 1-1-2005.
2 Ins. by MPAct 18 of 2007 w.e.f. 25-5-2007.
148
Ins. by M.P.Act 16 of 2004. w.e.f. 1-1-2005. :2 Ins. "by MPAct 18 of 2007 w.e.f. 25-5- 2007.
3 InSc bYM.P.ActIBof2004.w.e.f.I_I_2oo5.
4 Ins.'byMPAct18of2007w.e.f.25-5-2007.
88. Inquiry into affairs of Panchayat.-The State Government may, from time to time. cause an inquiry to be made by any of its officers in regard to any Panchayat on matters concerning it or to any matter with respect to which the Sanction. approval, consent or order of the State Government is required by or under this Act or he JUles made thereunder .or under- any law-for the tithe being hi force. -
89. Liability of Panch etc. for loss, misappropriation._(IJ Every Panch, member, office-bearer, officer or servant of Panchayat I[or Gram Nirman Samiti and Gram Vikas Samiti] 2[or cOmmittee of Gram Satha] shall be personally liable for loss, waste or misapplication of any money or other property of the Panchayat 3[or Gram Nirman Samiti and Gram Vikas Samiti] 4[or cOmmittee of Gram SabhaJ to which he has been a party or which has been caused by him by misconducf or gross neglect of his duties. The amount required for reimbursing such loss, waste, or misapplication shall be recovered by t heprescIibed authoIity:
functions and duties.
Any order which does not satisfy the above tests would be liable to !:Ie set aside either by the appellate authority or in supervisory or writjurisdic-tion of the High Court.
17. Appeal and revision._[I] Looking to the provisions of sub- section (1),it is the State Government or the prescribed authority who is empowered to pass an order of dissolution ofa panchayat. Where an order is passed by the State Government, no appeal lies against its orders because under the Madhya Pradesh Panchayat Appeal and Revision Rules, 1995, an appeal is provided against the order passed by the Director but there is no forum _ where an appeal can be filed against the order of the State Government. It is the highest authority. Generally, it will be the Director who will take action under this section and an appeal can be filed against his order to the State Government. The limitation for appeal would be thirty days. [2JRevision.-Although an application for revising the order passed by the prescribed authority may bemade to the State Government, it would be better to file an appeal to the State Government and not a revision.
18. Jurisdiction of High Court to interfere.-On receipt ofa petition against an order passed by any of the authorities, the High Court has a supervisory jurisdiction and also a writ jur~dietfon. Both of them are not similar to appellate jurisdiction. It will nev"i' interfere unless it.findS.that the provisions oflaw have been violated and the authority concerned-has . .riot followed'the procedure it ought to have followed.
S.88
(PAJ142 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993
149
of different facts and circumstances. This oppoltunity may include infann- ing him of the material which is to be used against-him, supplying him all material that may be necessary for his defence, reasonably instructed in law, would reach on the basis of facts and circumstances on record. Unless the opportunity as aforesaid has been given, it will be difficult to hold that the person affected by the order had a reasonable opportunity of showing cause against the proposed action. If enquiry is made under section 88, the prescribed authority is bound to give a copy of the enquiry repo!;.t to the panchayat concerned. See AIR 1977 SC 1267 & AIR 1978 SC 597.
12. Service ofnotice.-!t is provided in the section that a notice caIling for explanation shall be served in accordance with the provisions of section 119 of the Act. Section 119 says that a notice or other document under this Act shall be served in the prescribed manner. Rules have been made by the State Government for service of notice etc. and they are called, "Panchayat (Method of service of Notice and other Document) Rules, 1995". See Rule 3 of the aforesaid rules.
13. Appointment of a person or committee in place of dissolved panchayat and theirremuneration.-[I] Where a panchayat is dissolved, the State Government or the prescribed authority, as the case may be, shall appoint a person or a cOIpmittee of.persons to perform the functions and duties of pane hay at and exercise all the powers of the dissolved panchayat till the new panchayat is reconstit."ted. Where "committee is soappoi.nted
L
.• the appointi,;g a.uthority shall also app'oint a head' of such committee. . .---- . [2J The State Government is also empowered to determine the fee or remuneration of such person or committee for the services rendered by them.
14. Vacation of "ffice.-When a panchayat is dissolved, all the office- bearers ofthe panchayat shall vacate their offices. The office-bearers would mean a panch, Sarpanch and Up-Sarpanch in the case of a Gram Panchayat, a member, President and Vice- President in the case of Janpad Panchayat and Zila Panchayat. __ . _ .... ~~
15. Reconstitution ofPanchayat.-[IJ It is provided in sub- section (5) that a Panchayat dissolved under sub-section (1) shall be reconstituted within six months of the dissolution and the reconstituted panchayat shall function for the remaining term of the panchayat dissolved. But where the remaining term is less than six months, no such panchayat shall be reconstituted.
[2J It is also provided that the new panehayat shall be reconstituted in accordance with the provisions of this Act.
IS. Nature .of .order -to .be ..passed.- The authority passing the order should bear in mind that exercise of power under this section to dissolve a
. p;mc!l,ayatw.Quldqe a rare tl;ting..The,r.llfore,th.llauthority passing the order should pass a speaking order which must itself speak as to why such an action is taken. The order should disclose that the concerned panehayat was given reasonable opportunity of submitting its explanation and/or hearing and the authority has considered its explanation and reply to the allegations very minutely. The order should set an example for other panchayats so that they may not behave in that manner and should be vigilant to perform their
8.87
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8.87 PANCHAYAT RA.J AVAM GRAM SWARAJ ADHI., 1993 (PA)141
150
8.87
(PAJ140 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993
initiation ofproceedings under this section. The authority shall not proceed in the matter unless it is satisfied primarily. i
[3JWhere the authority has proceeded under this section after receiving report of a preliminary enquiry, it is the duty of such authority to supply a copy of such report to the panchayat concerned along with the shQWcausenotice. 1993 RN 6. [4JPreliminary enquiry need not be held in presence of the members of .the panchayat. 1989 RN 11.
11. Reasonable opportunity._[l] The expression "reasonable oppor- tunity is found to be used in many a statutes. It embodies the principle of natural justice that no body should be condemned unheard. The Legislature here has used the expression "reasonable Opportnnity offurnishing explana_ tion". The question arises as to what is the meaning of furnishing explana_ tion? There are many hidden'words to be read in this expression. The State Government or the prescribed authority, as the case may be, has to mention everything in the notice for which it needs an explanation of the Panchayat. It should specify in the notice each and every allegation, should mention documents which tend to prove any allegation against the working of panchayat, with copies of such documents or its relevant extracts and it should also mention the names of witnesses who have deposed or verified the allegations. The intention is that nothing should be hidden from the panchayat and decision of dissolution should not be based Onfa~ts, doeu- _ ments and witnesses about which the panchayat had nb-knOWledge.The 'Panchayat should know each and every matter which can be used againstit for dissolution. . [2JThe concerned panchayat should be given full Opportunity to render explanation of each and every allegation and it should not be denied to explain things either in person or by representation or by leading evidence in the matter. It should be given a reasonable opportunity of cross-examin_ ing the witnesses who have deposed against it, if so desired.
[3JThe purpose of affording reasonable Opportunity is not served unless it reaches the stage of taking final decision in the matter. Before taking any final decision in the matter the concerned authority should consider the expl",nation given by the panchayat quite impartially in the light of the situation mentioned above. It is neither a routine matter nor an ordinary thing to be witnessed formally. It is a serious matter and should be judge free from all prejudices. It is not necessary that the primary satisfaction of the authority is required to be maintained. The entire exercise of affording reasonable opportunity to submit an explanation is aimed at to find out real facts and an adequate remedy to correct the wrong, committed if any.
[4] It is a settled position that the menlbers constituting any panchayat in Madhya Pradesh may not be law knowing but the authority taking action against it under this section shall be knowing the law fully well. It should reach a conclusion which a reasonable mind, reasonably instructed in law, would reach on the basis of facts and circumstances on record.
[5] The two words "reasonable opportunity" incorporate Principles of natural justice. Principles of natural justice are not contained in any straightjacket formula and have been interpreted differently in the context
151
administration done by a Panchayat fail, then only the remedy of removal should be resortedJo. When people ofode party are in Government, they try
to remove persons belonging to their rival party and often exercise pressure
on the officials at different levels to do so. The officers in the Government
should be aware and keep themselves free from such pressures.
[3J It may,.,however,. be noted that the prescribed authority before reSorting to an action under this section should see that there are other provisions in the Act which can ~ve him better information about the working of panchayat. Section !l4' relates to inspection of work of panchayats, Section 84 provides/f'0J inspection of works of Panchayats, Section 85 empowers the authoritres to suspend execution of orders and Section 86 empowers the State Government to issue orders directing
panchayat for execution of works in certain cases.
6. Persistently makes default.-In sub-section (1), We first ground on which a panchayat can be dissolved is its persistent default. The word
'persistently' connotes not one or two defaults but it means ((again and again, goes on committing defaults time and again".
7. Default.-The default mentioned in sub-section (1) is in respect of
performance of duties imposed on itby or under this Act, or under any other
law for the time being in force. The term other law would include even the rules made by the State Government undervarious,Sections of this Act. But the panchayat is not obligedto catty1lutiill illega!order'ofany authority .. "
It cannot be asked to do a thing which it is not empowered to do.
8. Exceeds or abuses its powers.-In order to bring any case within this clause, one shall have to define the powers ofthe concerned panchayat. If it appears that the panchayat concerned has been doing acts which are
not expected ofit, meaning thereby it is exceeding its powers in resolving to do any act or series of acts. Similarly where it appears that in the name of
Panchayat it is resolving to do certain acts which may be called 'abuse of
power'. A panchayat is not expected to exercise power or jurisdiction which
is notvestedinit._ __. __
9. Fails to carry out orders.- The sub-section makes specific mention that the panchayat has failed to carry out the orders either of the State Government or that ofthe competent authority. It is not that every omission or failure will empower either the State Government or the prescribed authority to order dissolution. There must be persistency in doing so. If the panchayathas not understood the nature and implication ofany order either of the State Q9xernment or the competent authority, it cannot be said that it has failed'tocarry it out. The Panchavat should be made to understand , ~h,:i.mp.uS'!!ilQ~~er.:
10. Enquiry,-[l]l:setore' ordering dissolution ofa panchayat, the State .- fi9y efllJ.l!ellt PJ,~l;te,jlrJ'~~.bed.a,.thorityis.required to m.ake an enquiry as It deems fit. Powers ate vested in the State Government to make an inquiry ,into the affairs ofthe Panchayat and it may doso through any ofits officers. [2J The object of this enquiry should be to find out facts which would either lead the State Government or the prescribed authority to form a prima fade opinion that the situation is such which demands action. It is the primary satisfaction of the concerned authority which would lead to
8.87
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8.87
..•• (PA)138 PANCHAYAT RAI \ VAM GRAM,SWARAJ ADm., 1993 [6J Sub-section (3) enumerates the cpnsequences which would follow when a panchayat is dissolved under sub-section 0). [7]Provision is made in sub-section (4) for payment of remuneration to
a person who is appointed an administrator or sayan officer to perform the
powers and duties of a Panchayat, from the funds of the Panchayat as theState Government maY-determine. [8J Apanchayat, if dissolved under sub-section 0) shall be reconstituted within six months as per provisions of the Act but it shall not be
reconstituted in a case where the term of the concerned panchayat is due to expire within six months. It is also provided there that a reconstituted panchayat shall remain in existence for the reIfiainingterm ofthe panchayatdissolved.
2. Applicability of the section.-Clause (xvii) of section 2 defines the expression 'panchayat' as used in this Act. According to this definition, it means, (i) Gram Panchayat, (ii) J'anpad Panchayat and (iii)Zila Panchayat. Accordingly the section applies to all panchayats namely, the Gram Panchayat, the Janpad Panchayat and the Zila Panchayat.
3. Object of the provision._ The object ofenacting this section i~to put an effective check on the misdoings of such persons, who by some means have obtained the administrative posts of panchas or members and Sar- panch or President of the panchayat and are acting in a manner which will ruin the administration ofthepanchayat ~__~_"-. ~__ ., _ .. ' 4. Pr'escribedAuthority.~ The 8tak GOV<'rnmenthas by its notifica- tion dated 5th--March 1994, prescribed 'Director, Panchayat & Social Welfare' as the prescribed Authority under this section.
" -"- 5. Requirements for dissolution._[l] It should be remembered that Ours is a country governed by a Constitution under which the whole nation and the States comprised therein are governed by a Democratic Form of Government. In this Democratic Form of Government, administration at different levels is entrusted to the representatives of the people. But the 'most unfortunate state of affairs is that even after expiry of53'yearsof independence, most of the people of OurState are still uneducated and the population consists ofmany backward communities. The State Government as well as the prescribed authority should not forget this state of affair of Our State and in exercising any power under this section, they should not forget that much cannot be expected from the members constituting various panchayats. If they work reasonably well, no attempt should be made to remove them. Even if they commit mistakes or they are negligent in Some respects and also if they exceed their jurisdiction in their zeal of overdoing things, they must be properly guided, rath~r than removed. The legislature has very wisely used the term 'persistently makes default' for this reason only:'Certain defaults oUlieir have to be tolerated unless they form the habit of making defaults.-Similarly theY .cannot be expected to recognise the boundary line of their' jUrisdiction and powers, hence they may e"ceed, Abuse of power is certainly very bad thing and it is often made in politicalrivalry. [2J From the above observations, one should also understand that dissolution is the last resort and not the first. if all attempts to reform the
153
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PANCHAYATRAJAVAMGRAMSWARAJ ADHl.,1993(PA)187
COMMENTARY
;
SYNOPSIS
at for
, State ersist- ~it by
'ce, or
State lr the )yan
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1. General interpretation.
2. Applicabilityof the seclion.
3. Objectof the provision.
4. Prescribed authority.
5. Requirements for dissolution.
6. Persistentlymakesdefault.
7. Default.
8. Exceeds or abuses its powers.
9. Fails to carry out orders,.
10. Enquiry.
11. Reasonable opportunity.
12. Service of notice.
13. Appointment of a person or committee in place of dissolved panchayal and their remuneration.
14. V8.i..:ationof office.
15. Reconstitution of Panchayat.
16. Nature of order to be passed.
17. Appeal and revision.
18. JurisJictio~ .
1. Ge'neral interpretation.-[l] The section provides for dissolution of panchayat for the reasons that the panchay.at is,- mpersistently making default in the performance ofthe duties imposed'
on it; or
(ii) exceeds or abuses its powers; or
(iii) fails to carry out any order of the State Government; or
(iv) fails to carry out any order of the competent authority. [2]It should appear to the State Government or the prescribed authority that a panchayat has committed an act or has failed to do an act as mentioned above, either the State Government or the prescribed authority may, by an order dissolve any panchayat.
[3]Whenever the State Government or the prescribed authority takes an action under sub-section (1), it shall also order for constitution of such panchayat afresh.
[3Al It is also made compulsory that before passing any order of dissolution of a panchayat, the State Government or the prescribed aU:!~Oljty,as the.case~ay "~~,shou)!l give a ~easonable opportunity to the 'mrrcernedvanchllyaHorfllrnishing itsexpl:m.atiori. - >" ""-'"' • [4]A notice asking explanation should be addressed to the Sarp"nch or th'ePresideiif of"l1ri'imPancliaya:t;'Jahiia:d Pancliayat or ZilaPaii'c1uiyat, as the case may be. Such a notice shall be served in accordance with the provisions of section 119 of the Act.
[5] It is also provided in sub-section (2) that a panchayat, on receipt of a notice calling upon its explanation under sub- section (2), shall submit its reply after getting it supported by a resolution of the panchayat.
154
,
(PAJl36 PANCHAYATRAJ AVAM GRAM SWARAJ ADHI., 1993 S. 8- (b)See also:Mana) Kumar Yadav v. State of M.P., 2008(4) MPHT 22,2008(Il) MPWN 70 [DB].
87. Power of State Government to dissolve Panchayat for default, abuse of Powers, etc.-fl) lfat any time it appears to the State Government Or the prescJibed authority that a Panchayat is persist_ ently making default in the performance of the duties imposed on it by or under this Act or under any other law for the time being in force, or exceeds or abuses Its powers OrfaUs to carry out any order of the St"te Government Or the competent authoJity, the State Government Or the prescribed authority, may alter such enquiry as it may deem fit, by an order dissolve such Panchayat and may order a fresh constitutionthereof.
(2) No order under sub-section (I) shali be paSsed unless reasonable opportunity has been given to the Panchayat for furnishing its explanation. The notice calling explanation shall be addressed to the Sarpanch or President of Gram Panchayat, Janpad Panchayat Or ZUa Panchayat as the case may be, and shall be served aCcording to the Provisions of Section 119. The reply of the Panchayat to the notice shall be supported by the resolu tion of the Panchayat.
"
(3) On dissolution of Panchayat under sub-sectiolJ,(IJ, the.foll ow
_-ing COnsequencf;s, s,hall ensure'riamely-="-" _ . __. _ _ _
(a) all the OlTice-bearers, sha.1lvacate their olTices With effectfrom the date of Such order;
(b) all powers and duties of the Panchayat shall, until the Panchayat is reconstituted, be exercised and performed by Such person or committee of persons as the State Govern_ ment or the preScribed authority may appoint in this behalf and where a committee of persons is so appOinted, the State Government or the prescJibedauthoJity shali also appoillt ahead of.sueh committee; ...
(c) where a Committee is appointed under clause (b) '\II>; mem- ber of Such committee duly authoJised by it maY'lSsue Or institute or defend any action at law On behalf of by oragainst the Panchayat. . (4)Any person appointed to exerCise and perform the powers and duties of a Panchayat during the peJiod ofdiSSOlutionmay receive from the fund of the Panchayat concerned sllch payment for his service asthe State Government may, by order determine. _
(5) A Panchayat dissolved under sub-section (IJ shali be reconsWllted in aCCOrdancewith the provisions of this Act Within six -months of its diSSOlution.Such reconstituted Panchayat shali functionfor the remaining term of the Panchayat:
PrOVidedthat if the unexpired period is less than six months the
reconstitution of the Panchayat shall not be done for this period.
-,
I
155
8.86 8.86
PANCHAYATRAJAVAMGRAMSWARAJ ADHI.,1993(PA)135
~ orany
" by it in the ary in :;sued ~ntor :t the J and ction ~rsOr .by
tal, mt
Lry
IT
a
n-
"a
LS
.s
Q.
e , Panchayat Karrni in case the Gram Panchayat fails to make such appoint- ment. PawanRa~.a v. Siate of M.P., 2009(4) MPLI 66 = 2009(3) JLI 276 = 2009(4) MPHT 377 (FB).
5. Scheme ofMANREGA:-SeeAkhilesh Singh Baghel v. State ofM.P., 2013(3) MPLI 716 = lLR 2013 MP 2389.
6. Opportunity of hear in g.-In the matter of recruitment ofShiksha Karrni Grade-III, the petitioners were members of selection committee constituted under the Rules. The select list of the candidates prepared by them was cancelled. No opportunity was afforded to the petitioners before cancelling such list. Since the petitioner hadno personal right or interest in the list so prepared by them, it could not be said that their interest was adversely affected by such cancellation. It was not necessary to give oppor- tunity ofhearing to the petitioner before cancellation of the select list. 1993
(1) SCC 154 ReI.Mansingh v. State ofM.P., 2000 (2) MPLI 187 (DB).
7. No suo motu powers lies with Collector to adjudge validity of an order.-Under Sub-Section (2) of S. 86, no suo motu powers lies with Collector to adjudge validity of an order which is passed in compliance of the direction of the State Government under S.86(1) to fill up the vacant post ofPanchayat Karmi. The correctness of the order passed in the favour of the petitioner could therefore be adjudged only in an appeal before concerning SDO. The exercise ofpower under Section 86(2) could only be in the event ofnon-compliance of the direction ofthe State Government. Seema . Singh v. State of M.P., 2009(Il) MPWN 46.
8. Appointment of Panchayat Katmi.-As empowered by S.86(1), Gram Panchayats can make appointments of Panchayat Karmi after a period of thirty days. Lallu Kol v. State of M.P., 2008 (4) MPLJ 418 =
2009(1) MPWN 27.
9. Selection & appointment by C.E.O. not permitted.-For the purpose of S.69 prescribed authority is Collector'and for S.70 Collec- tor/AddI.Coliector. Therefore, on failure to discharge the liability ofS.86(2) the process ofselection and appointment ofPanchayat Karmi must be made by them or under their close surveillance and approval but selection and appointment done since inception till completion by the Chief Executive Officer, without any approval of the prescribed authority. Such action .cannot be recognized, akin to approval the act of prescribed authority and do not have the protection under the provisions ofthis Act as specified under sub-section (2) ofSection 86 ofthe Act.Moreover as per the discussion made hereinabove, it is apparent that C.E.O. has acted with the bias of arbitrari- ness in t\'1ematter of preparation of selectIon list, therefore, also selection panel and process of-selectionis.liable to be 'quashed. Ramniwas v. State of M.P., 2008 (2) MPLI 297 = 2008(3) JLJ 136.
10. Powers of Collector u/s.86.-(a) The Panchayat failed to comply directions issUed u/s.70 of appointing ';1Panchayat Karmi. In .such a case, the Collector as the prescribed authority had the power under Sub-section
(2) ofS. 86 to authorise the Chief Executive Officer ofPane hay at to appoint a Panchayat Karmi. Leelawati v. State of M.P., 2008(4) MPHT .470 =
2008(3) MPWN 86 [DB].
156
COMMENTARY
SYNOPSIS
(PAJl34 PANCHAYAT RAJ AVAA{ GRAM SWARAJ ADm., 1993 s this Act, Or by or under any other law for the time being In force or, work as is not being performed Or executed, as the case may be, b~ and the performance Orexecution thereof by such Panchayat is, in i opinion of the State G",vernment Orprescribed authority, necessarypublic interest].
(2) The Panchayat shall be bound to COmplyWith direction issu, under sub-section (1) and it it fails to do so l rthe
State Government,
the prescribed authority shall have all necessary Powers to get it directions complied with at the expense, if any, of the Panchayat] an in exerciSing such Powers it shall be entitled to the same protectio l
and the same extent under this Act as the Panchayat Or its officers 0 servants Whose POWersare exercised. I Subs. by MP 43 of 1997 15-12-1997).
1. Enquiry is essential before remOval order.
2. Exercise of power by Competent Authority.
3. Appointment of POi1chayat Karmi.
4. Scope of S.86(2).
5. Scheme of MANREGA.
6. OPPOrtunity of hearing.
7. No suo motu powers lies with Collector to adjudge validity .of an.order.
8. Appointl!lent of-Panch-aya-t-K~rmi .. 9:. Selection & appointment by C.£.O. not permitted. 10. Powers of Collector u/s.86. 1.'Enquiry is eSSential before remOval order.-Explanation given by the employee against show cause notice without unequivocal, unconditional, unqualified and Specific admission nf guilt. Renee order of the competent authority directing to remove the petitioner without conducting the enquiry set aside. GhanshYam u. State of M.P., 2013(I) MPLJ 144= 2013(2) MPRT59 = 2013(I) MPWN 18.
2. Exercise of POWer by Competent AuthoritY.-Unless there is a ..". wilful default Ornegligence Onthe part of the Gram Parichayat, the Com_ petent Authority cannot exercise that Power. Brajesh Sharma u, Nagendra Singh Sisodiya,
2010(2) MPLJ 101 = 2010(5) MPIIT 133.
3. Appointment of Panchayat I{armi.-Application by the petitioner for appointment on the post of Panchayat Karmi. On the date when his selection Wasfinalized an recommendation for his appointment Wasmad as Panchayat I{armi, the petitioner was holding the post ofPanch of the Gram Panchayat concerned. This being so, the petitioner Was ineligible to be appointed as Panchayat I{armi. Collector rightly set aside illegal appoint_ ment ofthe petitioner. Prahlad Das Tandla u. State of M.P., 2012(3) MPLJ580.
4. Scope OfS.
8
6(2).-State Government or the preScribed authority can direct the Chief Executive Officer of the Janpad Panchayat to appoint a
,
,I
i'l 'I.
157
8.85
8.86 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA1133
done by
'nto the
eal was
rhand,
~cerned
,der of
" State i3.
? even arities tothe )assed yatin Gram
act of found ts for their :0 the lch a such
:38 = ined
was ,the I his ton
,h v. ut.- mst
uch
(2).
:ed.
VN
!nd Ion tis ler of
:xt he
to
le
Ie
Ie
resolution. Narendra Kumar v. State of M.P., 2012(3) MPLJ 627. ll. SDO not empowered for.-Suspension of resolution of Gram Panchayat appointing Panchayat Karmi by Sub Divisional Officer. Sub Divisional Officer cannot order Gram Panchayat to appoint another person as Panchayat Karmi. Must remit the matter back to the Gram Panchayat for making the proper selection and to pass the appropriate orders. Narendra Kumar v. State of M.P., 2012(3) MPLJ 627.
7. Challenging to resolutions of Panchayats • Suo motu powers of State Government or prescribed authority.-On a keener scrutiny of section 85 it is evincible that the power has been conferred on the State Government or the prescribed Authority can suspend the resolution, order, etc. on the conditions precedent or such action being satisfied. That apart, the'said order is subject to further scrutiny for the purpose of confirmation by the State Government. The power is ofthe wide amplitude. The State Government has the authority to suspend the execution of any resolution. It also prohibits to perform any act by Panchayat. Many a ground has been enumerated empowering the State Government for inter- ference. The term used is 'resolution' as well as 'order', etc. Though the language employed under section 85 does not use the term suo motu but it is virtually the suo motu exercise afpower because the State Government can take up the issue by itself. Suo motu power can also be invoked by a person aggrieved. In the absence of the rules it will be difficult to hold that 'the power of appeal or revision can be exercised by the said authorities bl.J1 Court cannot be oblivious of the fact that ,an appeal or revision is providl~ll in the substantive provision ofthe Act. '
The State Government has not framed rules by providing a forum. Under these circumstances it would be apposite and seemly to hold that the Person aggrieved can bring his grievance to the notice of the State Govern- ment and the State Government should take a decision under section 85 of the Act.While taking the said decision the State Government shall be guided by the concept of promptitude which is an intrinsic and inseggregable facet of suo motu exercise ofjurisdiction. Be it noted, while exercising suo motu power under section 85 of the Act the State Government shall be guided by the parameters provided therein and the nomenclature given to a proceed- ing under section 85 of the Act. Sagar Machhua Sahakari Samiti, Seoni u. Chief Executive Officer, Janpad Panchayat, Seoni & Anr., 2008(2) MPLJ
1 94 =AIR2008 (NOC) 1 388 = 2008(1 ) JLJ 329 = 2008(1 ) MPHT 254 [DB]. 8. Words "resolution" and "order".- The two words "resolution" and "Order" as used are two different acts'; Ramcharan Ahinwar v. Sub- Divisional Officer, Jatara, 1998 (2) JLJ 267. 86. Power of State Government to issue order directing Panchayat for execution of works in certain cases.-1[(l) The State Government or the prescribed authority may, by an order In writing, direct anyPanchayat to perform any duty imposed upon it, by or under I Subs. by MP 43 of 199715-12-19971. c , c
158
affirmed in terms of the provisions of S.85 of the Act. This v'as not done by the prescribed authority, i.e. the SDO. He was not required to look into the claim made in the appeal filed by the private respondents, if the appeal was directed against the resolution of the Gram Panchayat. On the other hand, it was to be treated as a complaint under S.85 of the Act or the' concerned appellants were to be directed to file the appeal against the order of appointment and not against the resolution. Raj!?umar Kushwaha v. State of M.P., 2013(1) MPLJ 238 = 2013(1) MPWN 24 = ILR 2013 MP 53 . (2)Gross irregularities/improper procedure would be cure even in writ petition.-The Court cannot shut its eyes to the gross irregularities committed in the matter of appointment in case the same is brought to the notice in the Court even in "awrit petition filed against such an order passed by the SDO. Entire process was not initiated by the Gram Panchayat in appropriate manner and improperly the resolution was passed by the Gram Panchayat for making appointment of Panchayat Karmi. Such an act of Gram Panchayat cannot be approved. High Court in various cases found that improper procedure has been adopted by the Gram Panchayats for making appointments ofPanchayat Karmis, so that such persons after their notification as Secretary of the Gram Panchayat, may act according to the choice of the concerned Sarpanch. This is not the object of making such a scheme and, therefore, the High Court will not hesitate in quashing such proceedings. Rajkumar Kushwaha v. State of M.P., 2013(1) MPLJ .238= 2013(1) MPWN 24 = ILR 2013 MP /'i3.
(3) Criteria for appointment. Scheme required that the marks obtained in the 10th class shall decide the fate of the candidate. 2nd respondent was having higher marks than the petitioner. However ignoring the merit, the petitioner was appointed only'on the basis of majority of votes casted in his favour in the meeting ofthe Gram Panchayat. Petitioner's appointment on the basis of majority of votes was illegal and therefore set aside. Mahesh v. State of M.P. , 2010(3) MPLJ 470.
5. Powers ofSDO to suspend resolution of the Gram Panehayat.- II] Resolution appointing Panchayat Karmi found illegal. Remedy against such resolution is that the SDO under S.85 can suspend execution of such resolution which is to be affirmed by next higher authority under S.85(2). Once such resolution is suspended, such resolution can not be implemented. Rajkumar Kushwaha v. State ofM.P., 2013(1) MPLJ 238 =2013(1) MPWN .24 = ILR2013 MP 53
I2JTrue it is that the Sub Divisiollal Officer is empowered to suspend the resolutIon of the Gram Panchayat in exercise ofhis powers under section 85(1) of the Act in case it is found after an enquiry that such a res~lution is not valid, proper, justified or legal. However, before passing such an order a summary enquiry is required to be conducted. The order of suspension of the resolutIOn.of the Gram Panchayat is required to be referred to the next hIgher authOrIty, I.e. the Collector, under sub'section (2) ofSection 85 of the Act. The Collector is required to hear all concerned and then eitlier to ~onfirm the ord~r of suspension of the resolution or to revoke or modify the orde,:of suspensIOn ofthe resolutIOn. Such a reference is required to be made wIthm a perIod of 10 days from the passing ofthe order of suspension of the ,(-"'. '"
8.85
159
.85 S.85
PANCHAYAT RAJ AVAM.GRAM SWARAJ ADHI., 1993 (PAl13l :on-
ling .,
, or
on-
lSS
ler
"YS ~er ler nt
lfy ut
er
'Y]est 2. Maintainability ofAppeaI.-Resolution passed by Gram Panchayat. Appeal Before Collector against the resolution not maintainable. Jurisdic- tion exercised by the Collector and the Commissioner in quashing the resolution is unsustainable. Phool Singh Marko. v. State of M.P., 2010(3)
MPLJ66.
3. No Interference.-Appointment of petitioner on post of Panchayat Karmi by resolution passed by Gram Panchayat. The SDO after considera- tion of the record found that the respondent was having better marks in tenth standard still the petitioner was given appointment by the Gram Panchayat only on the basis of majority. He therefore set aside the appoint- ment of the petitioner and ordered appointment of the respondent. Said order has been upheld by the Additional Collector. No case is made out to interfere into the impugned orders. Bherulal v. State ofM.P. ,2010(3) MPLJ
454.
4. Appointment on post of Panchayat Karmi, Validity of proce- dure.- Out of the six candidates, the petitioner was selected and the order ofappointmeht as Panchayat Karmi was issued, pursuant to which, he gave his joining and, thereafter, was declared as the Secretary, of the Gram Panchayat by the Collector in exercise of the powers under S.69(1) of the Adhiniyam, 1993. The appeal was preferred by respondents Nos. 8 to 11 against the said appointment of the petitioner, before the SDO and in fact, instead of challenging the order of appointment of the petitioner, the resqlution of the Gram Panchayat was sought.0 i:>echallengeq, The.said .•• 'resolution was nof to .be challEmged in such a manner and therefore, such an appeal was not maintainable. The appeaI.was liable to be dismissed, but instead of dismissing the appeal, the same was allowed and the order of appointment of the petitioner was sought to be cancelled by setting aside the resolution of the Gram Panchayat. It is contended that such power was not conferred on the SDO and as such the order was non est in the eye of law. Only on the basis of such an order, the petitioner was not to be terminated and, therefore, the writ petition was required to be filed. True itls that a resolution of the Gram Panchayat is not to be challenged before the Appellate Authority as the same'isnot treated as an 'order. The' Division Bench of the High Court in various cases, has held that only an order consequent upon the resolution of the Gram Panchayat, appointing any person as Panchayat Karmi, is appellable under S.91 of the Act as also under the Rules known as M.P. Panchayats (Appeal and Revision) Rules, 1995. However; there is a power conferred on the prescribed authority, Le. the SDO under S.85 of the Act to suspend the execution of the orders etc. and a resolution of the Gram Panchayat is also to be suspended by the Competent Authority. The said susyenslon of the execution of the execution .mtlie. resolution. is to .be affirmed by -the next higher authority as per the provisions of sub-section (2) of the S.85 of the Act. At any rate, there is no pow.er .conferred ona .prescribed authority or the affirming authority to set aside the resolution. If once the resolution is suspended and the said order of suspension of resolution is affirmed by the Competent Authority, the resolution is to be pocketed for all time to come and is not required to be implemented at all. No action whatsoever, can be taken on the strength of such a resolution, if the same is suspended and such suspension order is
160
1 Subs. by MP2 of 1997 [7-1-1997).
2 Subs. by MP43 of!997 [5-12-1997).
3 Ins. by MP43 of 1997(5.12-1997].
1. Scope to entertain an appeal by S.D.a. against an resolution
passed by Panchayat.
2. Maintainability of Appeal.
3, No Interference.
4. Appointment on post of Panchayat-Karmi, Validity of procedure.
5. Powers of SDO to suspend resolution of the Gram Panchayat.
6. SDO not empowered for
7. Challenging to resolutions of Panchayats .
8. Words "resolution" and "order".
1. Scope to entertain an appeal by S.D.O. against an resolution passed by Panchayat.-Under S.85 an"authority not specified to hear an appeal and the State Government not framed Rules to prescribed an authority to hear an appeal. The S.D.O.has nojurisdiction to entertain the appeal against the resolution passed by the Gram Panchayat. (Sagar Machhua Sahakari Samiti, Seoni v. C.E.o., Janpad Panchayat, Seoni, 2008(2) MPLJ 194 Rel.] State of M.P_ v. Rajesh Kumar Gupta, 2013(2)
MPLJ130.
(c) the execution of such resolution or order .. or the con-
tinuance in force of such licence or permission or the doing
of such act is likely- I (i). to cause loss. waste or misapplication of any money or damage to any property vested in the Panchayat;
(ii) to be prejudicial to the public health. safety or con-
venience:
(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. 1[(2)Whenever an order is made by the prescrtbed authority under sub-section (I), it shall forthwith and in no case later than ten days from the date of order, forward to the State Government or the Officer nominated by the State Government for this purpose, copy of the order with the statement of reasons formaking it, and the State Government or the officer nominated by it 2[mayconfirm, set aside, revise or modifY the order] or direct that it shall continue to be in force with or without modification perman<;ntly or for such peliod as may be deemed fit:
Provided that no order of the presclibed authority passed under sub-section (1) shall be confirmed, 3[set aside), revised or modified by the State Government or the officer nominated by it without giving the Panchayat concerned a reasonable opportunity of being hearda~alnst . the proposed order]. . _..
COMMENTARY
SYNOPSIS
8.85 (PA)130 PANCHAYATRAJAVAMGRAMSWARAJ ADHI.,1993
161
'7-A 8.85 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)129 ~ture
this
rery
,I
~
I in :ate ~rit, the
rise .de
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,,es, led
ch'
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ee
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,s ,e
19
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~
rate or any other amount due, whichever is higher.] 83, Power of State Government in regard to relief in taxes.-(l) If on a complaint made to it or otherwise it appears to the State Government that any tax imposed by a Panchayat is excessive in its incidence on tax payer it may, after calling a report from the Panchayat in this regard, abolish any tax or suspend or reduce the amount or rate of any tax.
(2)The State Government may, on its own motion or otherwise after giving the Panchayat an opportunity of expressing its view in the matter, by order, exempt from the payment of any tax in whole or in part any person or class of persons or any property or description of properties subject to such conditions as may be specified in such order.
CHAPTERX-CONTROL
84, Inspection of works ofPanchayats.-(I) The ofIicer of the State Government duly authorised by the State Government in this behalf may, subject to such terms as may be prescribed, inspect the proceed- ings of a Panchayat.
(2) The officers authorised under sub-section (I) shall, for the inspection of the. Panchayats, exercise such powers as may be prescribed.
. (3) The' office bearers, ami the officers and servants of the Panchayat shall be bound to afford access to all such information and records as may be demanded by the inspecting authority. Rules:- The State Governmenthas made the followingrules in eXL'leise of the powers conferred by this section. These Rules shall be found under Rules given separately. .
"Ins~ctian o{Proceedings Rules, 1995."
COMMENTARY
. - - - -- - ---
Recovery ofloss to panchayat.- Where loss is caused to a panchayat by act of all panchas, loss is recoverable from all panchas and not from Sarpanch alone. Sarpanch cannot be directedto recoverloss fromrest ofthe panchas. Chhotelal Patel v. State a{M.P., 1998 (1)MPWN 77:
85, Power to suspend execution of orders, etc.-(J) The State Government or the prescribed authority may by an order in writing -.r",:d/j'r.r°t
r}~ea~~s dt~~_';,,~~~s,ct-!~,!el!".'s~s'p'::'~~t ~~e£uti;?!' .0tf,d-'!!'-y es U lvll J-'a~se , Ofuer lssuea, lcence or permlsslOn gran e or prohibit the performance of any act by a Panchayat. if in his opinion,-
• --. -,~_...-".'.~-' --""- •• __ •••••-.~-- ••••••.•••.•• ., ~ ..-•••••••••_. '" ".-,,",_.-- ••• ,~' -*,~ ., •••. - la) 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 contrmy to any law; or
(PAJ128 PANCHAYAT RAJ AVAM GRAMSWARAJ ADHI., 1993 S.77.A
4. "Janpad Panchayat (Imposition of Development Tax on Agriculture Land) Rules, 1999"
i
I
1[77_A. Power to impose Tax.-(l) Subject to the provisions of this Act and to such conditions and exceptions as may be prescribed, every Gram Sabha shall impose the taxes specified in Schedule I-A.
(2) A Gram Sabha may impose any of the taxes specified in Schedule II-A.]
78. Power of State Government to regulate taxes.-n) The State Government may make rules to regulate the imposition, assessment, collection and sharing of taxes under Section 77. (2)No objections shall be taken to any assessment nor shall be the liability of any person to be assessed or taxed be questioned otherwise than in accordance. with the provisions of this Act or the rules made thereunder.
Rules:- The State Government has made the followingrules in exercise of the powers conferred by this section. These Rules shall be found under Rules given separately.
"Regulation 'of The Imposition, Assessment, Collection of Taxes Rules, ~" -
79. Appeal against taxation.-An appeal against any tax, imposed under Section 77 may be preferred to the preSCribed authOrity in such manner and within such time as may be prescribed and the decision of such authOrity shall be final.
Rules:- The State Government has made the followingrules in exercise of the powers conferred by this section. These Rules shall be found under Rules given separately.
"Manner and Limitation of Appeals against Taxation Rules, 1995."
80. Leases of market fee, etc.-The- Panchayat may by public auction in the prescribed manner, lease the collection of any fee specified in Schedule III.
Rules:- The State Government has made the followingrules in exercise 'of the powers conferred by this section. These Rules shall be found.under Rules given separately.
"Gram Panchayat and Janapad Panchayat (Lease of Collection of Fees) Rules, 1995"
81. Recovery of arrears. -Any arrear of tax. or fee and fines imposed, or any amount due under this Act shall be recoverable by the Collector as if It were an arrear of land reVenue. 2.182.Penalty fo~ evasion.-When a person is In default In making a payment of any tax. fee. rate or any other amount due, shall In addition to the amount of arrears. be liable. by way of penally, to pay a sum of five hundred rupees or ten times the amount of such tax, fee,
1 Ins. byM.P. ActNO.3of2001126-1-20011.
2 Subs.byM.P. 26of1994[30.5.941. , l~ '. .~ ,
".'.;:l \ ~
163
•
S.77
• •
PANCHAYAT RAJ AVAM GRAM SIVARAJ ADHI., 1993 (PA)127
realised by the State Government in the proceeding financial year]. Rules:- The State Governmenthas made the followingrules in exercise of the powers conferred by this section. These Rules shall be found under Rules given separately.
"District Panchayat Raj Fund Ru!es, 1998" 1[76-A. Distribution of amount amongst Panchayats.-
(I) & (2) 2[ XXX I
(3) The development tax realised under sub"section (3) of Section 77 from a J anpad Panchayat area shall be transferred to the concerned Janpad Panchayat and the Gram Panchayats within that Janpad Panchayat, in such proportion and manner as may be prescribed.
(4) The amount pertaining to extra stamp duty, shall be pald to 3[Janpad Panchayat and Gram Panchayat] as grant-in-aid subject to such rules as may be made in this behalf.
(5) The amount realised in the fund pertaining to other taxes, duties, tolls, fees and other receipts specified under sub- section (2)of Section 76, shall be distributed among the Panchayats in such man- ner; as may be prescribed.j
77. Other taxes.-(l) Subject to the provisions of this Act and to such conditions and exceptions. as may be prescribed every Gram Panchayat and Janpad Panchayat shall impose the taxes specified in .Schedule L
(2) With the previous approval of the Janpad Panchayat a Gram Panchayat and with the previous approval of. the Zila Panchayat a Janpad Panchayat may impose any. of the taxes specified in the Schedule II.
(3) A Janpad Panchayat may levy development tax on agriculture land. The tax so levied shall be payable in the same manner as land
revenue.
COMMENTARY
Imposition of entry tax.- Entry tax on motor vehicles cannot be imposed by Gram Panchayat. S. N. Suderson & Co. v. Gram Panchayat Poniya, 1998 (I) MPWN 155.
Rules:- The State Governmenthas made the followingrules in exercise of the powers conferred by this section. These Rules shall be found under .Rules given separately. .
1. Gram Panchayat Obligatory .yaxe~ and Fees (Conditions And Excej>tions)Ru1es,1996.1
-.~'2. Gf'am"PanchiJ.yat0JJli"Ii(l! Taxes and Fees (Conditions and ex- ceptions) Rules, 1996. .
." 3: JanapQdaPanchayats Theatre Tax (Regulation of Imposition. Assessment and CoUection)Rules, 1996. .
I Ins. by MP 2 of 1997 [1-10-1998).
2 Sub-section (I) and (2) omitted by M.P.Act 23 of 2001 (10-10"2001).
3 Substituted by M.P.Act No. 260f2012[23-5-2012).
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(PA)126 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHL, 1993 8,75
payable and collected so far as may be in the same manner as the land
revenue.
Explanation:"ln this Section the expression "tenure holder"
"Government lessee," "land revenue" and "rent" shall have the same meaning as assigned to them in the Madhya Pradesh Land Revenue Code, 1959 (No, 20 of 1959)],
Rules:- The State Government has made the followingrules in exercise of the powers conferred by this section, These Rules shall be found under Rules given separately,
"Panchayat (Enhancement of Cess on Land Revenue and Distribution) Rules, 1999"
75. Duty on transfer of property within block,-The duty imposed under the Indian Stamp Act, 1899 (No, 2 of 1899), on instrument relating to sale, gift [or mortgage) of immovable property situated within the block be increased by one percent on the value of such property or in the case of mortgage on the amount secured by the
instrument:
I[Provided that such extra stamp duty levied in respeci of mortgage shall not exceed the amount of stamp duty thereon; Provided further that no extra stamp duty is livable in respect of ally instrumell1: exempted from stamp duty under the Indian stamp Act, 1899 or the rules made thereunder.]
COMMENTARY
Extra Stamp Duty levied in respect of mortgage shall not exceed the amount of Stamp Duty thereon, Mis, APL International Ltd, v, State of . M,P" AIR 2008 MP 254(DB.)
2[76. District Panchayat" Raj Flind.-(I) There shall be constituted and operated in such manner as may be prescribed by the State Government, a separate fund at the district level by the name "District Panchayat Raj Fund" (hereinafter referred to as the "said Fund"). 3[(2) The proceeds of development tax under sub-section (3) of' Section. 77 along with such other taxes, duties, tolls, fees and other receipts as may be specified by the State Government shall. after deducting the collection charges, as may be determined by the State Government from time to time, be credlted.jnto the said fund.],
(3) The proceeds of (he extra stamp duty under section 75 shall
. first be credited to (he Consolidated Fund of the State in such manner as may be prescribed and the State Government shall at the commen- cement of each financial year, ifthe LegislativeAssembly by appropria- tlort made by law 111 this behalf so provides,. withdraw from the Consolidated Fund of the Stale an amount equivalertt to the proceeds I Added by MP2 of 1997 [7-)-19"7J,
2 Subs, by MP 2 of 1997 [1-10.1998[,
3 Subs, by M,P.Act23 of 2001 (1O-1O-2001),
165
1. "Gram Panchayat (Powers and functions of the Secretary) Rules, 1999"
J
2. "Panchayat Powers and Functions of Chief Executive O.fficer} Rules, 1995"
73. Budget and annual Accounts. -(1) Every Panchayat shall prepare annually in such form and in such manner and by such date, as may be prescribed, budget estimates, of its receipts and expenditure for the next financial year.
(2) The budget estimates prepared under sub-section (i) shall be approved by such authorities and in such manner as may be prescribed.
(3) The annual accounts and report of administration by panchayats shall be presented to the prescribed authority in the prescribed manner.
Rules:- The State Gllvernment has made the followingrules in exercise of the powers conferred by this section. These Rules shall be found under Rules given separately.
1. "Panchayats (Budget Estimates) Rules, 1997".
2. "Zila Panchayats (Budget Estimates) Rules, 1997".
3. "Janpad Panchayat (Budget Estimates) Rules, 1997".
4. Gram Palichayat (Annual Accounts and Administration Report) .Rules, 1998'''.
5. Janpad Panchayat and Zila Panchayat (Annual Accounts and Ad. ministration Report) Rules, 1998". ' .
6. "Zila Panchayats (Accounts) Rules, 1999:'
7. "Gram Panchayats (Accounts) Rules; 1999"
8. "Janpad Panchayats (Accounts) Rules, 1999"
CHAPTER IX. TAXATIONAND RECOVERY OF CLAIMS
1[74. Power to levy Cess on Iand .. (l) Every tenure holder and Government lessee shall be liable to pay for each revenue year for the ~urpose of this Act, a cess in respect of land held by him within the [Gram Sabha area,] at the rate of fifty paise on every rupee or part thereof exceeding fifty paise on the land revenue or rent assessed on such land.
(2)A 3[Gram SabhaJ may increase the rate specified in sub- section
(I) to the extent of ten rupees through a "esolution passed to this effect. in the prescribed manners .
. .' ,(3)The Cess levied under. sub-section II) and (2) and the develop- , ment'tax leVied'un:aer suo.:'secHon13'fof Settlon77'shan'be in""addition to the land revenue or rent Orany other cess or tai< 011sJlch land _under -' "the'Madhya 'PfifdeSl(Uuid'Reven:ue'CoQ'e,: 1959 (No. 20 of 1959) or under any other enactment for the ttrrie being In force and shall be
1 Subs.byMP 2of 1997[1-10.19981..
2 Subs.byM.P. Act 23of2001(10-10-2001).
3 Subs.byM.P. Act 23of2001[10-10-2001).
PANCHAYATRAJAVAM GRAMSWARAJADHI., 1993 (PA)125 I
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COMMENTARY
71. Deputation of Government servant.-The State Government may depute to the service of the Panchayat such of its servants as it considers necessary. The service conditions of such deputed servants shall be such as may be prescribed, by the State Government from time to time.
,
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Unlawful Deputation.-Petitioner holdjng a cadre post in M.P. Ac- counts Services of the State Government, transferred to Zila Panchayat est1l.blishment on deputation without his consent. Transfer is unsustainable and is quashed. Respondents may have a right to post the petitioner in the Zila Panchayat as he is holding a cadre post in the State Government which permits posting of such an employee to the Zila Panchayat, but such posting would amount to transfer of the petitioner on deputation to the Panchayat as per the Panchayat Service (Recruitment and General Conditions of Services) Rules, 1999 and therefore, the same can be done only by seeking. his consent and following the rules and procedure contemplated for posting of an employee on deputation. In viewofthe aforesaid, it has to be held that posting of. the petitioner in the establishment of Zila Panchayat is on deputation and the same without his consent is unsustainable. P.K. Jain v. State of M.P., 2010(3) MPLJ 340 = 2010(3) JLJ 137.
3. Appointment of other officers & servaIits - Previous approval necessary.-A Panchayat cannot appoint a Secretary or C.E.O. of the Panchayat, but it can appoint such other officers and servants. A close reading of Sub-section (1) of S.70 further makes it clear that the previous approval ofthe Prescribed Authority is required not to a named officer or named servant but to the appointment of such officers other than the Secretary and servants as the Panchayat considers necessary for the effi- cient discharge of his duties. Mano) Kumar Yadav v. State afM.P., 2008(4) MPHT 22 = 2008(11) MPWN 70 [DB]. .
See also: Comments under Section 69.
Rules:- The State Government has made several rules in exercise of the powers conferred by this section. These Rules shall be found under Rules given separately.
72. Functions of Chief Executive Officer and Secretary.-The functions of Secretary of a Gram Panchayat,i Chief Executive Officer of Janpad Panchayat and I[Chief Executive Officer of ZlIa Panchayat] . shall be such as may be prescribed. .
Rules:- The State Government has made the following rules in exercise of the powers conferred by this section. These Rules shall be found under Rules given separately.
1 Subs. by M.P. 26 of 1994 [30.5.94) for the words "Secretary ofZila Panchayat".
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8.70 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)123
1
Panchayat by adopting a resolution was not correct either on facts orin law. Ramlakhan Rawat v. State of M.P., 2000(2)MPLJ 176 = 2001(J)JLJ 280, [OVERRULED]. Devidayal Raikwar v. State of M.P., 2009(1) JLJ 7 = 2008(4) MPLJ 647 = 2008(3) MPHT 505[DB].
[5] In every Gram Panchayat there is only one post of Pane hay at Karmi and there cannot be reservation in case of a single post. Lallu Kal v. State of M.P., 2008 (4) MPLJ 418 = 2009(1) MPWN 27.
[6]As empowered by S.86(1), Gram Panchayats can make appointments afPanchayat Karmi after a period of thirty days. Lallu Kal v. State of M.P., 2008 (4) MPLJ 418 = 2009(1) MPWN 27.
[7] Selection & appointment by C.E.O. not permitted.-Far the purpose of S.69 prescribed authority is Collector and for -So70 Collec- tor/Add!. Collector. Therefore, on failure to discharge the liability ofS.86(2) the process of selection and appointment ofPane hay at Karmi must be made by them or under their close surveillance and approval but selection and appointment done since inception till completion by the Chief Executive Officer, without any approval of the prescribed authority. Such action cannot be recognized, akin to approval the act of prescribed authority and do not have the protection under the provisions of this Act as specified under sub-section (2) of Section 86 of the Act. Moreover as per the discussion made hereinabove, it is apparent that C.E.O. has acted with the bias of arbitrari- ness in the matter of preparation of selection list, therefore, .also selection panel and process of selection is liable to be quashed. Ramniwas v. State of M.P., 2008 (2) MPLJ 297 = 2008(3) JLJ 136.
[8] Powers of Collector u1s.86.-The Panchayat failed to comply direc- tions issued ufs.70 of appointing a Panchayat Karmi. In such a case, the Collector as the prescribed authority had the power under Sub-section (2) ofS. 86 to authorise the Chief Executive Officer of Pane hay at to appoint a Panchayat Karmi. Leelawati v. State ofM.P., 2008(4) MPHT 470 =2008(3)
MPWN 86 [DB].
[9] Proper order of Appointment is essentia!.- The resolution of a decision in a meeting is not the order which can be given effect to. There should be a proper order pursuant to the resolution for appointment to the post of Panchayat Karmi. Respondent NO.5has been permitted to work as Panchayat Karmi on the basis of resolution passed by the Gram Panchayat and approved by Gram Sabha. No legal order has been passed appointing him on the post of Panchayat Karmi. With regard to the next contention that the relatives, i.e. the brother and the upcle are elected Up Sarpanch and Sarpanch of the Panchayat is concerned, that also disqualifies the respondent NO.5 for being appointed as Panchayat Karmi. The SDO has rightly reje1:te
[10] Court cannot exercise suo motu powers.-Court cannot suo motu .decide whether the resolution adopted by the Panchayat was in VIOlationof Clause 3.4 of the Parichayat Karmi Yojna. Whether there has been such a violation or not could be decided only after replies were filed by the respondents and not at the stage of motion or admission. Mana}Kumar Yadav v. State of M.P., 2008(4) MPHT 22 = 2008(ll) MPWN 70 [DB].
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of prescribed authority appoint such other officers and servants as it considers necessary for the efficient discharge of its duties.
(2) The qualifications. method of recruitment. salaries. leave. al- lowance and other conditions of service including disciplinary matters of such officer and servants shall be such as may be prescribed.
COMMENTARY
1. Panchayat Karmi Yojna not notified in the Gazette and it is not rules.-The Panchayat Karmi Yojna under S.70 is not notified in the Gazette and not referable to rules under the provisions of the Act as the Scheme makes reference only to the provisions of sections 69 and 70 of the Act and not to the rule making power of the State Government. The
conditions contained for appointment of officers and servants in the scheme
cannot be treated to be Rules prescribing qualifications, conditions etc. but only executive instructions to the Gram Panchayat. Ashok Kumar Kaurav
v. State of M.P., 1999 (2) MPLJ 729=1999 (2) JLJ 273.
2. Some cases related to Appointment of Panchayat Karmi.- [IJ Appointment on merit basis is necessary.-Gram Panchayat Karmi appointed by_majorij;yof voting not on merit basis of candidates in terms of the scheme foi iippoiritmentofPailchayhtK':tiiii, ~eieCtwn'Process vitiated since the norms and the criteria fixed for the selection has not been followed by the Gram Panchayat. Piajapal Singh v. State of M.P., 2009(1) MPLJ 640 = 2009(1) MPWN 24 = 2008(5) MPHT 421.
[2] Order and Resolution both are different terms.-If Gram Panchayat passes a resolution to select a person on the post of Panchayat Karmi, it would amount to resolution not amounting to an order, but if it passes a resolution selecting and appointing a person thereby on the post of Panchayat Karmi such kind of resolution may amount to an o;der in substance and not merely a proceeding ofGram Panchayat and an appeal against it may be preferred before the S.D.a.Abdul Hussain Qureshi v. State of M.P., 2008 (4) MPLJ 546 = 2009(1) JLJ 320 = 2009(1) MPHT 322.
[3] In Panchayat Karmi Yojna, there is no condition that a candidate must have latrine in order to qualify himselffor being appointed on the post of Panchayat Karmi and this condition could not have been added as a mandatory qualification for the candidate seeking appointment on the post of Panehay at Karml. Vishnu Dev Pandey v.\State of M.P., 2008 (4) MPLJ
232
[4] Appeal shall lie & Appellate AjIthority have necessary powers ••Th;, provisions ofan Act cannot be interpreted by reference to the
. provisions of a Scheme made by the Government to give effect to the provisions of the Act, but has to interpreted by reference to the provisions of the Act. Hence against an order of appointment of Panchayat Karmi issued by the Sarpanch pursuant to the resolution of the General Body of a Gram Panchayat an appeal would lie to the S.D.a. under Section 91 of the Adbiniyam read with Rule 3 of the Rules of 1995. Held, obviously, while deciding the appeal, the Appellate Authority will have all necessary powers to grant reliefin a case where he decides to allowthe appeal and such powers
",ill "11ilJl;,>;>el"'QP tl;>pnpwprt\l dp~w~th.'lrthf ~QI) ~lI.e bv~ Q,r\l.I1j
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I
8.70(PA)122 PANCHAYAT RAJ AVAM GRAM SWARM ADHI., 1993
i
170
a . .=
S.70 PANCHAYAT RAJ AVAM GRAMSWARAJ ADHI., 1993 (PA)121
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an order passed by the SDO. Entire process was not initiated by the Gram Panchayat in appropriate manner and improperly the resolution was passed by the Gram Panchayat for making appointment ofPanchayat Karmi. Such an act of Gram Panchayat cannot be approved. High Court in various cases found that improper procedure has been adopted by the Gram Panchayats for making appointments of Panchayat Karmis, so that such persons after their notification as Secretary of the Gram Panchayat, may act according to the choice of the concemed Sarpanch. This is not the object ofmakirig such a scheme and, therefere, the High Court will not hesitate in quashing such proceedings. Rajkumar Kushwaha v. State of M.P., 2013(1) MPLJ 238 = 2013(1) MPWN 24 = ILR 2013 MP 53.
7. Relat1ve.-The meaning of the term 'relative' in both sections 40(1) and 69(1) in the absence of specific definition, refers refers only to father,
mother, brother, sister, husband, wife, son, daughter, mother-in-law, father- in-law, sister-in-law, 800- in-law and daughter-in-law but does not include
uncle-in-law and co-sister of mother-in-law. Jamna Bai Mehra v. State of M.P., 2004 (4) MPLJ 274=2005 (1) MPWN 46=2004 (4) MPHT471 (DB).
8. Withdrawal of additional charge.- A Panchayat Karmi wasap- pointed Panchayat secretary, an additional charge, in exercise of powers under sub-section (1). Petitioner committed irregularities of seripus nature. Collector withdrawing additional charge pending result of enquiry. It is proper. Hariam Singh Rajput v. State of M.P.; 2002 (3) MPLJ'204=2002 - -
(3) MPHT 541.
9. Competent Authority to pass the suspension order.-The petitioner, while working as Panchayat Karmi, was appointed as Panchayat Secretary, challenged his suspension order which was passed by theCEO, Janpad Panchayat and urged that the said order was passed in lack of jurisdiction by the CEO and CEO was not competent to pass such order. Held it is true that the Joint DirectorlDeputy Director, Panchayat and Social Welfare Department is the competent officer under S.69(1) of the Act and under the MP/C.G. Panchayat Service (Discipline and Appeal) Rules, 1999._ ._ But the MP/CG Civil Services (Classification, Control and Appeal) Rules, 1966 are applicable to all the employees of the State Govemment including Panchayat Services and it provides for suspension under second proviso of the Rule 9, if the order of suspension is made by an authority lower theil the Appointing Authority, such authority shall forthwith report to the Appoint- ing Authority the circumstances in which the order was made. The facts of reporting suspension to the JointlDeputy Director, Panchayat and Social Welfare Department, Raipur is bome out froIl) the impugned order itself, which has been marked to the concemed authority. Therefore the impugned suspension order was properly passed. Ramnarayan Sahu v. State ofChhat- tisgarh, 2006(2) CGLJ (CG) 406 = 2007(1) MPHT 105 (CG). See also: Maal Chand Sani v. State ofM.P. , 2007(2) MPHT 133. See also: Comments under S.70.
70. Other officers and servants of Panchayat. -(I) Subject to the provisions of Section 69 every panchayat may with previous approval
171
6. Second proviso (as inserted by M.P.Act 2 of 1997, w.e.f.7-1- 1997)-Scope and effect..operative against persons holding such post.-The second proviso inserted by M.P.Act 2 of 1997, w.e.f. 7- 1-1997 provides that a person shall not hold charge of Secretary if such a person happens to be relative ofany offiGebearer ofthe concerned Gram Panchayat. Panchayat Secretary is an important functionary of the Gram Panchayat and he has to perform various statutory functions which include recording of minutes, proceeding and decision of every meeting of Gram Sabha. The legislature in enacting the aforesaid provision thought that any nexus between the office.bearer ofa Gram Panchayat and the Panchayat secretary shall destroy the basic fabric on which the institution of Gram Panchayat is based or it may lead to corruption and nepotism and and such it enacted in mandatoryfonn that a person shall not hold charge ofa Secretary ofGram Panchayat if such a person happens to be the relative of any officebearer of Gram Panchayat.
A plain reading of the aforesaid provision makes it clear that con- tinuance of a person as a Panchayat Secretary is prohibited if such a person happens to be the relative ofany officebearer ofGram Panchayat. Although there was no such impediment before 7-1- 1997 and there may be certain persons holding such officeseven though they happen to be relative of some officebearer, in view ofthe provision now made, they cannot be allowed to hold charge of the Secretary any more. Use of the expression 'shall' in this .. proviso raise,;"a'j>resurnj>tionthat prohibition ofa fE,lativeof anoffice'Dearer ..... , ., of any Gram Panchayat to hold charge of the secretary is imperative. Another reason of such interpretation is the negative expression in the proviso. The prohibitory or negative words are rarely directory. It means that Panchayat Secretaries who were appointed even prior to 7-1-19978 cannot be allowed to hold charge of the Secretary. They cannot be allowed to hold office even as Panchayat Karmis because Panchayat Karmi and Panchayat Secretary are different and distinct entity. Pmhlad Singh Patel
v. State of M.P., 2000 (1) MPHT 89=1999 (2) JLJ 374. 6-A, Bar against appointment of a Panch as Panchayat ,Karmi.---"
Specific provisions have been made under the Act for not allowing any person to join the services or to notify him as Secretary of the Gram Panchayat under S.69 of the Act where it is specifically said that a person shall not hold charge of Secretary of Gram Panchayat if such a person happens to be the relative of any office bearer of the concerned Gram Panchayat. If a relative of the officebearer of Gram Panchayat is not to be permitted to hold the charge ofthe post ofSecretary ofthe Gram Panchayat, how could a Panch ofvery same Gram Panchayat be appointed on the post as Fanchayat Ka,;"i. "':.h.i~hn~e~t_0~1ya~d o~lrf()rnoy~ng~ucll a person .t!s SeCI'l!taryof the Gram Pancliayat. The bar Itself created under the Act was there against the petitioner and Collector rightly held that the '-petitilmer'wasifleligibl,fto'be appoiiited on 'Hi" post of Panchayat Kanni. Prahlad Das Tandla v. State of M.P., ILR 2013 MP 279.
G-B. Gross irregularities/improper procedure would be cure even in writ petition.-The Court cannot shut its eyes to the gross ir- regularities committed in the matter of appointment in case the same is brought to the notice in the Court even in a writ petition filed against such (PAl120 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993
8.69
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172
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= 2009(1) MPWN 27.
4. Improper removal order from the p~st of Secretary.-
[1] Without charge sheet removal order from service.- Without charge sheet removal order from service issued to Panchayat SecretarylPetitioner; As per M.P. Panchayat Serv(ce (Discipline and Ap- peal) Rules, 1999 removal from service of Panchayat Secretary is a major penalty and procedure for imposing major penalty is provided in Rule 7.
Thus, the said order issued in contravention ofRule 7 hence not sustainable.
Kailash Babu Rai v. State o(M.P., 2008 (3) MPLJ 648 = 2008(3) JLJ 392. [2]Without inquiry major penalty imposed.-Order ofmajor penalty cannot be passed unless a formal inquiry is held. Unless the procedure laid down in Rule 7 of M.P. Panchayat Service (Discipline and Appeal) Rules, 1999 followed, Secretary of the Gram Panchayat cannot be removed or reverted from the post ofSecretary, Gram Panchayat. Lalla Prasad Burman
v. State o(M.P., 2008 (3) MPLJ 394 = 2008(3) MPHT 26 = 2008(2) MPWN
I01.DB.
[3] Opportunity of hearing is necessary.-Without giving oppor- tunity of hearing and without considering the reply of show cause notice penalty imposed. Order is illegal, as has been passed in violation of the instructions issued by the Government as well as principles of natural justice. Gram Panchayat, Bamrol v. Jagdish Singh Rawat, 2008 (3) MPLJ 127 = 2008(4) MPHT 132 = 2008(2)MPWNI02 PH. ..._ .... See also: Neelesh Dubey v. State o(M.P., 2007(3) MPLJ 349 = 2007(4)
MPHT431.
[4]Joint Director cannot issue notice.-Joint Director ofPanchayat and SocialWelfare cannot issue show cause notice regarding the withdrawal ofpower ofPanchayat Secretary. Notice issuing power and removing power both vests in the Collector who is appointing authority under S.69(1).Gram Panchayat, Bamrol v. Jagdish Singh Rawat, 2008 (3) MPLJ 127 = 2008(4) MPHT 132 = 2008(2) MPWN 102 DB.
5. On belialfoftliePanchayat the Sarpanch cannot sue arid file' an appeal independentIy.-Under S.l1 Gram Panchayat being body cor- porate can sue and can be sued. The power shall not vest in Sarpanch but it will vest in the whole body of the Gram Panchayat and if thePanchayat wants to sue or to file an appeal, the Panchayat has to pass a' resolution authorising either to Sarpanch, or Up-Sarpanch or to any Panch or to file appeal or Writ Pctition Or any other petition. Rule 3 of the M.P. Gram Panchayat (Powers and functions ofthe Secretary) Rules,1999Rt6vides that executive power ofGram Panchayat shall vest in the I'anchay!l't'Secretary, who will exercise the.executive power, but in these Rules alSo itj.s nowhere provided that who will sue on behalf of the Panchayat,.Helil, therefore we are of view that Gram Panchayat i$ a body corporate, having power to sue or to be sued, and the Gram Panchayat has to authorise somebody to act on its behalf and without the resolution by authorising anypcl'son to sue of behalf ofthe Panchayat, the Sarpanchcannot sue and appeal independently. Gram Panchayat, Bamrol v. Jagdish Singh Rawat, 2008 (3) MPLJ 127 = 2008(4) MPHT 132 = 2008(2) MPWN 102 DB.
173
1. Scopeof Sections69 and70.
2. Limited powers of Collector.
3. Prohibitionapplyonlyon thepostnf Secretary.
4. Improper removal order from the post of Secretary.
5. Onbehalfof the Panchayatthe Sarpanchcannotsue and file an appeal independently.
6. Secondproviso(as insertedby M.P.Act2 of 1997,w.eJ.7-1- I997)-Scopeandeffect-Operativeagainstpersonsholdingsuch post.
6~t\.Bar against appointment of a Panch as Panchayat Karmi. 6-B. Gross irregularities/improper procedure would be cure even in writ petition.
7. Relative. R. Withdrawal of additional charge. I). Competent Authority to pass the suspcl1:-,ion order.
1. Scope of Sections 69 and 70.-From the provisions in sections 69 and 70 it is noticed that both sections act in distinct spheres; first in relation to the appointment ofPanchayat Secretary while the second in relation to the appointment ofother officers and servants of the Panchayat. Section 69 .provides for appointment ora secretary only by.State Government orthe ...• prescribed authority. Sub-section (1) does not grant any power to leave the matter ofappointment as Secretary.in the hands ofany authority other than the pre>
2. Limited powers of Collector.-Collector is an appointing authority of the post of Secretary and Gram Panchayat is appointing authority of Panchayat Karmi under S.69 ofthe Act. Since the Collector is an appointing authority ofthe post of Secretary only therefore he is empowered to suspend .a Secretary from the post of Secretary. and not 'from his post of Panchayat Karmi. Kamlesh Dubey v. State of M.P., 2009 (1) MPLJ 545 =2009 (2)
MPHT372.
3. Prohibition apply only on the post of Secretary.-Second proviso to Sub-section (1) prohibits a person from holding charge of Panchayat Secretary, if such a person happens to be relative of any officebearer ofthe concerned Gram Panchayat but it cannot prohibits appointment of such person as Panchayat Karmi. Lallu Kol v. State of M.P., 2008 (4) MPLJ 418 (PA)118 PANCHAYAT lIM AVAM GRAM SWARM ADHI., 1993
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SYNOPSIS
8.69
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• (PA)190 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 Sch.
,
16. Poverty alleviation programme.
17. Education including primary and secondary schools.
18. Technical training and vocational education.
19. Adult and non-forinal education.
20. Libraries.
21. Cultural activities.
22. Market and fairs .
23. Health and sanitation, including hospitals, primary health
centers and dispensaries.
24. Family Welfare.
25. Women and Child development.
26. Social Welfare, including welfare of the handicapped and mentally retarded.
27. Welfare of the weaker sections, and in particular of the Scheduled Castes and Scheduled Tribes.
28. Public distribution system.
29. MairItenance of community assets.
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Sch. PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)189
6. A temporary tax for special works of public utility.
7. A tax fof the construction or maintenance of publ1c latrine>: and a general scavenging tax for removal and disposal ofrefus
8. Fees for bullock-cart stand and tonga stand.
9. Fees for temporary structure or any projection over any public
place or temporary occupation thereof.
10. Fees for grazing cattle over the grazing grounds vested in the GramSabha.
11. Any other tax, which the State legislature has power to impose under the Constitution of India.]
SCHEDULE III
(See Section 80)
LEASE OF COLLECTION OF FEES BY GRAM PANCHAYATS
1. A fees on persons exposing goods for sale in any market or any place belonging to or under the control of Gram Panchayat or for the
. use of any building or structure therein.
2. A fees on the registration of cattle sold in any market or place belonging to it under the control of the Gram Panchayat.
"3.Afee for the useofsarais,dharamshaias, reSU19_uses,slaughter. _ hOtis~s andericampiriii'grbunds. . . .
4 ..'A fee for bullock-cart stand or tonga stand.
5. A fee for grazing cattle over the grazing grounds vested in Gram Panchayat. .
6. Any other fees imposed by Janpad PanchayaL
SCHEDULE IV
[See sub-section (I) of Section 531
1. Agricuiliire, including agrtcUltul'alextensfon.--
2. Land improvement and soil conservation ..
3. Minor irrigation, water management and watershed develop- ment. .
4. Animal husband!}', dairying and poultry.
5. Fisheries.
6. Social Forest!}' and farm forestry.
7. Minor forest produce. ' .',. ,
8. S!hall'scale indu$tlleS; lric)udirig topo processing inoustries .. '9, Khadivl1lage and Cottage'Indusl1les." 0.
1O. Rural Housing. . .
11. -Drinking water.
12. Fuel and fodder.
13. Roads, culverts, bridges, ferries, waterways .and other means of communication. .
14. Rural electrification, including distribution of electricity.
15. NOll-conventional energy sources.
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176
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'to (PA)188 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHl" 1993 Sch,
SCHEDULE II
[See sub-section (2) of Section 77} , .
A. OTHER OPTIONAL TAXES FEES ETC. TO BE IMPOSED
BY GRAM PANCHAYATS
1[x x xl
3. A tax on the bullock-carts. bicycles, ricksha~s used for hire within the iimits of Gram Panchayat area,
2[x xxi
5. A water rate where arrangements are made by the Gram Panchayat for regular supply of water.
6. Fees for drainage where system of drainage has been introduced by the Gram Panchayat.
3[x x xl
8. A fees payable by the owners Ofthe vehicles other than motor vehicle, where such vehicles other than the motor vehicles enter the Gram Panchayat area.
4[x x xl
B. OTHER OPTIONAL TAXES TO BE IMPOSED
BY JANPAD PANCHAYAT
Fees for any licence or permission granted _by. the. Janpad_ Panchayat under the Act or for use and occupation Oflanas or'(,tlier properties vested in or maintained by the-Janpad Panchayat.
5[SCHEDULE I1.A
[See SeCtion (77-A)}
OTHER OPTIONAL TAXES, FEES ETC. TO BE IMPOSED
BYGRAMSABHA
1. A tax on building not covered under Item I of Schedule ,l-A._
2. A tax on animals used for riding, driving. drought or burden or on dogs or pigs payable by the owners thereof.
3. Fees for the use of sarais, dharamshalas, rest houses. slaughter houses and encamping grounds.
4. A water rate where arrangements are made by the Gram Sabha for regular supply of water.
5. A tax on persons carrying on the profession of purchaser. agent. commission agent, weighman. or a meastirer within the meaning of Madhya Pradesh Krishi Upaj Mandi Adhiniyam, 1972 (No. 24 of 1973), in the area of Gram Sabha excluding the area of a Mandl.
1 Items 1& 2 omittedby M.P.Act3 of 2001. w.e.f.26-1-2001.
2 Item 4 omitted by M.P.Act 3 of2001, w.e.f.26-1.2001.
3 Item 7 omitted by M.P.Act 3 0[2001. w.e.~.26¥1-2001.
4 Items 9 to 14 omitted by M.P.Act3 of2001, w.e.f.26-1-2001.
5 Ins.byM.P.Act30f2001.w.~.f.26-1-2001.
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177
SCHEDULE I
ISee sub-section (1) of Section 77J I
A. OBLIGATORY TAXES TO BE IMPOSED
BY GRAM PANCHAYATS;;. ,'. 1 1xx xl
5. Market fees on persons exposing goods for sale In any market or at any place or any building or structure therein belonging to or under the control of the Gr~ Panchayat. '
6. A fees on the registration of cattle sold In any market or in any place belonging to or under the control of the Gram Panchayat. 2 '
7. Ix x xl
B. TAX TO BE IMPOSED BY JANPAD PANCHAYAT
, A tax on theatre or theatrical performances and other performan. ces of public entertainments.
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OBLIGATORY TAXES TO BE IMPOSED BY GRAM SABHA
(1)A property Tax on tl1e lands. Dr buildings 01" both. the capital.. ... .. .. vahleofwhlCli.'indtidiilg the value of the landlsmore'then'6000' .. "
Rupeesother ihan-,.
(al the buildings and lands ow";ed or vested in the Union or State Government. Gram Sabha. Gram Panchayat. Janpad
Panchayat. or 2ila Panchayat.
(b) tl1ebuildings and lands or portions thereof used exclusively for religious or educational purposes including boarding houses:
4[Provided that In the""se.,,!, S,pecialEcono.fl1i~?:one.t,h".D.evelopc", , ."... ' ,mentCommissioflerinay Impose property tax on the lands or buildings or both.1
(2)A tax on private latrines payable by the occupier or owner of the buildings to which such latrines are attached when cleaned by Gram Sabha Agency.
(3)A light tax. if light arrangements have been made by the Gram Sabha.
(4) A tax on person, exercising any profession or carrying on any )r~9J' 9':~a!.Ii9g,Wit.nlgJh" .!!mlt~91'gr'!!Il,13a1;>ha.a,I;'.~a.1 }'. !'terns-i to .4"omitfed ~-". -
2 Item {7) Inserted by MP Act 19 of 1997 [1*5-1997/. omitted by MP 43 of 1997
15.12.1997).
3 . Ins. by M.P.Act 3 0[2001, w.e.f.26~172001.
4 Proviso added by MPAct 18 'of2007 {25-5-2007j.
178
(PA)186 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 8.131
!
:1
1
,
Provided further that, subject to the proceeding proviso anything done or any' action taken (including any appointment, or delegation made, notification, notice, order, instruction or direction issued, rule, regulation, byelaws, form or scheme framed, certificate obtained, permit or licence granted, registration affected, tax imposed or fee or rate levied), under the repealed Act shall, In so far as it is in force immediately before the coming into force of this Act and is not incon- sistent with the provisions of this Act be deemed to have been done or taken under the corresponding provisions of this Act and shall con- tinue to be in force accordingly, unless and until superseded by anything done or any action taken under this Act.
(2) The arrangement existing for the Gram Panchayat, Janpad Panchayat and Zila Parishad under Section 127 of the repealed Act shall continue, until the corresponding Gram Panchayat, Janpad Panchayat ;mdZila P~shad as the case may be, are constituted under this Act. '
(3) The Collector, shall apportion the assets and liabilities of the existing Gram Panchayat amongst the corresponding Gram Panchayat constituted under this Act according to the guideline issued by the State Government for the purposes.
'1[(4) Theia.s,'ls and iiabilities of eJdsting Janpad Panchayat and Zila,Parlshad shall'stand transfer,.edto Janpad PanchayaLand Zila, Panchayat rc~pectively constituted under thisAct.] " . -- '.' ' .. - - -"
j
131. Savings as to existing pe,rmanent employees.-Not- withstanding anything contained in this Act or any rules or byelaws made thereunder the pay and allowances, pension and retirement benefits of all permanent officers and servants or other employees of the Panchayat on the date on which this Act comes into force shall be existing pay and allowances, pension and retirement benefits.
132, Power to remove diffieulties.-(l) If any difficulty arises in giving effed to the provisi6n,rof this Act, the-State Govetruuentmay;"
by order, do anything not inconsistent with the provisions thereof which appears to it to be necessary or expedient for the purposes of removing the difficulty:
Provided that no such order shall be made under this section after the expiry of two years from the commencement of this Act.
,
(2)Every order made under this Section shall be laid on the table of the Legislative Assembly. I •
1 Subs.by M.P.26 of 1994 130.5,941.
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179
S,130 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)185
Ashok Kumar Tripathi v. Union of India, 2000 (1) JLJ 208=2000 (2) MPHT
193 (DB).
I
, [5J Basis of reservation being population and figures taken from census of 1991. Reservation ofseats may bemore than 50% in a block or panchayat area. But overall extent of reservations in the whole of State in reserved categories should not exceed 50%.Ashok Kumar Tripathi v. Union of India, 2000 (1) JLJ 208=2000 (2) MPHT 193 (DB),
[6J The Constitution itself has recognised necessity ofspecial treatment and protection to the socially and the educationally backward classes or citizens like Scheduled Tribes, Scheduled Castes and socially and economi- cally backward citizens. Article 14 of the Constitution permits, therefore, protective treatment to deprived classes of citizens vis-a-vis the forward and advanced. classes of the society,Ashok Kumar Tripathi v, Union of India, 2000 (1) JLJ 208=2000 (2) MPHT 193 (DB).
129-F. Powers of Janpad and Zila Panchayat.- Without prejudice to .the generality of powers conferred by this Act, the Janpad Panchayat or the Zila Panchayat, as the case may be, in Scheduled .Areas shall also have the following.powers, namely:
(i) to plan, own and manage minor water bodies up to a specified water area;
(ii) to, exetdse. ,-control.over iristihitions -and.functitina.:i'ies .-irFal1.--:-::"."-_. -- --;;~ social sectors transferred to them;
(iii) to exercise control local plans resources and expenditure for such plans including trtbal sub-plans; and
(iv)to exercise and perform such other powers and functions as the State Government' may confer or entrust under any law for the time being in force,)
CHAPTER XV - REPEAL
I~O. ReReal, .l\.J1d.sa'!'i.ngs.-{1) On apd from_the date of commence- __ ment of this Act the Madhya Pradesh Panchayat Raj Adhiniyam, 1990 (No. 13 of 1990), shall stand repealed (hereinafter referred to as the
. repealed, Act); Provided that the repeal shall not affect:-
(a) the previous operation of the repealed Act or anything duly
. done or suffered thereunder; or
(b) .any right, privilege, obligation or liability acquired, accrued or incurred under the repealed Act; or
_ (c) any penalty, fot.feiture of punishment .incurred in respect of any offence committed against the repealed Act; or
(d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, penalty, forfeiture or punishment as aforesaid and any such investigation, legal proceeding or remedy may be i'W,stituted,continued or en- forced, and any such penalty, foneiture or punishment may be imposed as if this Act has not been enforced:
--- --- -e
180
..
•~ I (PA)184 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHl .• 1993 S.129-E
"In sub-section (1) of Section 129-E, after the second proviso, the following proviso shall be inserted, namely:-
"Provided also that the Gram Panchayats in the Schedules! areas which have no population of Scheduled Tribes shall be excluded in prescribed manner from allotment of seats or the offices as the case may be, reserved for Panchas or Sarpanchas belonging to Scheduled Tribes," ,
COMMENTARY
1.No Scheduled Area.-A district will not stand declared as scheduled area merely because its constituents have been declared as scheduled areas. Unless there is a declaration by the President in Part-C of the fifth Schedule an area cannot form a part of Scheduled Area. The district has a different unit for the purpose of election under Art. 243-M of the Constitution. The concepts of Zila Panchayat and reservation are different things. The con- stituents having already been declared Scheduled Areas are maintained as such. Section 129-E cannot override the Constitution. It has to followit till the district as a area or unit is declared as a Scheduled Area for the purpose of election of Zila Panchayat. It cannot be regarded as a Scheduled Area by deductive or syllogistic process. State of Madhya Pradesh v. Ashok Kumar Tripathi, AIR 20.0.8M.P. 187 = AIR 20.0.8(NOC) 460. (M.P.)[DB].
2. Reservation of seats in Scheduled Areas of more than 50.%.' Provisions of the Panchayats (Extension to the Scheduled Areas) Act 40.
Government. Protective discrimination held justified. Ashok KUmar Tripathi v. Union of India, 20.0.1(4) MPLJ 20.6.
Similarly resenrations of 100%seats of Chairpersons in Panchayats in Scheduled areas for Scheduled Tribes is not discriminatory. Ashok KJindr Tripathi v. Union of India, 20.0.1(4) MPLJ 20.6. ..
3. Chapter XIV-A, as introduced. by Act 43 of 1997-Scope and purpose of provision.-[l! S.4(g)-of thePanchayats- (Extension to the Scheduled Areas) Act, 1996 (Central Act 40.of 1996) is in pari materia with the provisions of M.P.Act 43 of 1997 since they both are meant for reserva- tion of seats in the Panchayats falling in the ScheduledAreas.A~hok Kumar Tripathi v. Union of India, 20.0.0.(1) JLJ 20.8=20.0.0.(2) MPHT 193 (DB).
[2] In the matter of reservation, principle of proportionate repre- sentation based on population of reserved c'ltegories has been '1dhered to. Departure has been made from it in giving them larger share o~elf-gover- nance. AIR 1993 SC 477 and W.P.No.10l3 of1996 Disting. Ashok Kumar Tripathi v. Union of India, 20.0.0.(l) JLJ 20.8,,120.0.0.(2) MPHT 193 (DB). [3J.Reservation of Scheduled Castes, Scheduled Tribes, Women '1nd Backward Cl'lsses being 44%at the StOltelevel is not high, hence it is neither arbitrary nor excessive. Ashok Kumar Tripathi v. Union of India, 20.0.0.(1) JLJ 20.8=20.0.0.(2) MPHT 193 (DB).
[4]More than 50.%reservation in fategories including Scheduled Tribes in Scheduled Areas and 100.%reservations for Chairpersons not illegal.
181
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S,129.E PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)183
(vi)to control local plans, resources and expenditure for such plans including tribal sub-plans, and;
I
(vII)to exercise and perform such oiher powers and functions as the State Government may confer on or entrust under any law for the time being in force.
129.D. Functions of Gram Panchayat.- Without prejudice to the generality of powers conferred by this Act, the Gram Panchayat in Scheduled Areas, under the general superintendence, control and direction of the Gram Sabha shall also have the following powers, namely:-
(i) 1 Ixx xl
(ii) to manage village markets and melas including cattle fairs by
whatever name called;
(iii)to (vi)2 1xx xl
(vii) to exercise control local plans, resources and expenditure for
such plans including tribal sub-plans; and
(viii) to exercise and perform such other powers and functions as
the State Government may confer on or entrust under any law for the
time being in force. 129-E. Reservation of seats.- (I) The reservation of seats for Scheduled Castes and Scheduled Tribes in every Panchayat in -ScheduledAreas shall be in ptaportiOn to-their tespectiVe-pOpulatfOh.'. - in that Panchayat:
Provided that reservation for Scheduled Tribes shall not be less thati.one-half of the total number of seats:
Provided further that all seats ofSarpanch or President, as Ihe case may be, of Panchayats at all levels in Scheduled Areas shall be reserved for members of the Scheduled Tribes.
(2)The State Government may nominate persons belonging to such Scheduled Tribes as have no representation in a Panchayat in the .-Scheduled -Areas'-at the intermediate level-or'in a'panchayat-in-the Scheduled Areas at the dislrict level:
Provided that such nomination shall not exceed one-tenth of the total members to be elected in that Panchayat.
(3) In a Panchayat in Scheduled Areas such number of seats shall be reserved for persons belonging to other backward classes, which together with the seats already reserved for Scheduled Tribes, and Scheduled Castes. If any, shall not dceed three- fourths of all the seats in that Panchayat.
Applicability to Scheduled Area.-By Notfn. NO.F.I-8-97-XXU-P- 2.- dated 20th March 1999, Pub.in Rajpatra Ext. dated 24th March, -1999.p.334; the Governor ofMadhya Pradesh has applied the Madhya Pradesh Panchayat Raj Adhiniyam, 1993 (I of 1994), with the excep-
tions and modifications as under:-
1 Omitted by M.P.Act 5 of 199915-4-1999].
2 Omitted by M.P.Act 5 of 199915-4-19991.
182
(PA)182 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 S.129-C as may be prescribed, and each such Gram Sabha may consist of a habitation or a group of habitations or a hamlet or igroup of hamlets comprising a community and managing its affairs in accordance with lraditions and customs.
1[(3)The quorum of every meeting of Gram Sabha shall not be less lhan one-tenth of the tolal number of members of the Gram Sabha or five hundred members of the Gram Sabha, whichever is less.]
(4) The meeting of "Gram Sabha" shall be presided over by a member of lhe Gram Sabha belonging to the Scheduled Tribes not being the Sarpanch or the Upsarpanch or any member of the Panchayat, to be elected for the purpose by the majority of the members present in lhat meeting.
COMMENTARY
Creation of new villages.-This section finds place in Chapter XIV-A whichhas overriding effectin respect ofthe provisionsofthe Act.Formation of new villages is a legislative function. No question of inviting suggestions or objectionarises. 1995 MPLJ 152ReI.Bechansingh v. State of M.P., 2000
(1) MPLJ 405=2000 (1) MPWN 121. Rnles:- The State Governmenthas made the followingrules in exercise of the powerBconferretl by this section. These Rules shall be found under Rules given separately.' ..
,
"Scheduled Areas Gram Sablta (Constitution, Procedure of Meeting and Conduct of Business) Rules, 1998" .
129-C. Powers and Functions of Gram Sabha.- In addition to the powers and functions contained in Section-?, the Gram Sabha in Scheduled Areas shall also have the following powers and functions, namely:-
(i) 10 safeguard and preserve the traditions and cusfimls of the people. their cultural identity and community resources and the customary mode of dispute resolution:
(il) 2[x x xl
(iil)to manage natural resources including land, water and forests within the area of the village in accordance with its tradition and in harmony with the provisions of the Constitution and with due regard to the spirit of other relevant laws for the time being in force.
(iv) 3 1x x xJ .
(v) to manage village markets and melas including cattle fair, by what ever name called, through the Gram Panchayat;
1 Subs. by M.P. Act 18 of 2007 (25-5-20071 for the following:-
M{3) Not less than,ane-fifth or one thousand, whIchever is less of the total number of members of the Gram Sabha shall form a quorum for meeting of the Gram Sabha and out of which not less than one-third shall be women members."
2 Omitted by M.P.Act 5 of 1999 [5-4-1999].
3 Omitted by M.P.Act 5 of 1999 [5-4-19991,
I
183
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1[(3)The social audit 'Shall be performed by Gram Sabha regarding quality of community work and beneficiary oriented work executed in the Gram Sabha area in prescnbed manneLI
PREVIOUS PROVISIONS
[Before substitution S, 129 was applicable as underj
"S. 129. Audit ofPanchayats,-(1) There shall be a separate and independent Audit Organisation under the control of the State Govern- ment to perform audit of accounts of Panchayats.
(2) The Audit Organisation shall consist of such officers and servants, to be appointed by the State Government, as, the State Government may deem fit from time to time.
(3) The manner of audit of Panchayat accounts, payment of audit fees and action on such audit reports shall be such as may be prescnbed. "
Rules:- The State Governmenthas made the followingrules in exercise of the powers conferred by this section. These Rules shall be found under Rules given separately.
"PanchayatAuditRules,1997" .__ . 2[CHAPTERXiv-A- SPECIAL PROVISIONS FOR PANCHAYATS--'
IN THE SCHEDULEDAREAS
~[129-A Definitions.- Notwithstanding anything contain cd in this Act and unless the context otherwise requires in this Chapter:
(a) 'Gram Sabha" means a body consisting of persons whose names are included in the electoral rolls relating to the area of a Panchayat at the village level, or part thereof, for which it is constituted.
(b) Village" means a village in the Scheduled Areas which shall nrdinaJilyconsist-of a-habitation ora group of habitations or a-hamlet ... ------ ~ or a group of hamlets comprising a community and managing its affairs in accordance with traditions and customs.
129-B. Constitution of Village and Gram Sabha.- (1)The Gover- nor'shall be public notification specifYa "Village"for the purposes of. , . this Chapter.
T ,"
. , (2)Ordinanly, there shall be a Gram S\'bha for a "village' as defined in sub-section (1): '
Proviaed that if the member of the. Gram Sabha so desired, more .than-one Gratn-Sabha maybe constituted hla V1lrage.'in such manner l--lns. by M.P.Act 26 of-2012123-5-20121.
2 Ins. by MP 43 of 1997 15-12-1997). 3'"lJ:Ss.129-A to 129-F ins. by MP 43 of 1997 [5-12-}997]. I.; ff,; :
184
manner and the objections received have been considered.
(2) On making of the order under sub-section (I) the Governor or the authority authorised by him may p"ss such consequentiai orders as may be necessary.
127. Alteration in limits of Block and Zila Panchayat.-(I) The I[Governor]may, by notification 2[change the headquarters of a block or] alter the limits of a block by including therein any local area in the vicinity thereof or by excluding therefrom any local area comprised therein:
Provided that no such notification shall be issued unless a notice signifying such intention and inviting objections from persons likely to be affected by the alteration in the limits of the blocks by the date to be specified therein has been published in the prescribed manner and the objections received have been considered:
3[Provided further that no such notification to change the head- quarters of a block shall be issued except to change such headquarters which exist outside the limits of the block io a place within that block.]
(2) On the issuance of the notification under sub-section (I) the 4[Governor] or the authority authorised by him may pass such conse- quential orders as may be necessary.
(3) On the alteratiorl of the limits of a district. the State Govern- ment may pass such consequential orders in respect ofZila Panchayat as may benecessary .. ' .. ... ..,.
128. Management of Government Iands.-Any Government land transferred to a 5[Panchayat or Gram SabhaJ shall be managed by such 6[Panchayat or Gram Sabhal in :lc('Of(:iancewith such rules as the State Government may make in t!Jb l)c!Jaif. Rules:- The State Governmenthas made the followingrules in exercise of the powers conferred by this section.Thes,' I(ules shall be found under Rules given separately.
'''Panchayat (Management o(Government Lands) Rules, 1995" ..... 'CllAPTERXW:AlJDIT ....--
7' .
[129. Audit of Panchayats.-(l) The accounts of the Panchayats shali be audited by.the Director, LocalFund Audit and the Compti-oller and Auditor General of India shall give technical guidelines ahd supervision over the audit of Panchayats.
(2) The annual audit report of Director, Local Fund AUQl[ on Panchayats along with the annual technical inspection report of the Comptroller and Auditor General of In~ia shall be submitted to the
1 Subs. by MP 39 of 1995.
2 Ins. by MP 43 of 199715-12-1997J.
3 Ins. by MP 43 of.l997'15-12-1997).
4 Subs. by MP 39 of 1995.
5 Subs. by M.P.Act 30£2001, w.e.f.26-1-2001.
6 Subs. by M.P.Act 3 of 2001, w,e.f.26-1--2001.
7 Subs. by M.P. Act 26 of 2011, then ,amended by M.P. Act 26 of;2012.
(PA)180 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993
S. 127
185
8.1.26
, .
PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)179
may be necessary.
I
COMMENTARY
l.Exclusion of Village Kumadi from the area of erstwhile Gram Panchayat Toogni. The objections of the villagers were duly considered by the Collector before the issuance of final notification. High Court cannot sit in appeal over the decision. Case Law considered. La/singh v. State ofM.P., 2005 (1)MPLJ 348=2005 (2)MPHT 346=AIR 2005 NOC 250 MP.
2. Notification under- Validity.-Publication of a notification should be effective and meaningful. If a notice is published in Gazette, inviting objections by a particular date and that date has already expired before the notification is received by the persons affected, it is a meaningless and invalid publication. Pranay Gupta v. State of M.P., 2004 (4) MPLJ 574=2005 (1) JLJ 295 (DB).
3. Requirement under the proviso is mandatory.-The object of requirement ofpublication ofnotice is to draw the attention ofthe residents of the area who are likely to be affected by the proposals, so that they can submit their suggestions or file their objection to the proposals, which on consideration may enable the authority concerned to take a proper decision in the matter, either by dropping the proposals or by proceeding in terms of the proposals: The delimitation changes made in exercise of powers under .sub,section (1)will materially affect the Tesidents ofthe area. Such changes .... as contemplated in the sub~sectrori .are .not tob.e made lIghtly oi-routinely' . either for political convenience or ~tthe wq.ims of the executive. There sl1ou1d-beproper application of mind and valid reasons for effecting such changes. Pranay Gupta v. State ofM.P., 2004 (4)MPLJ 574=2005 (1) JLJ
295 (DB).
4. Alteration in limits of Gram Panchayat area-Change of Head Qua.rter-Amalgamation of two or more Gram Panchayat area to split up a Gram Panehayat.- These are legislative functions. They cannot be challenged in writ petition specially when the objections of the village peoplewere considered-and overruled by the Collector.AIR 1995MPWT52; --------
AIR 1990 SC 261 and 2002 (2) SCC 7 Foil. AlR 1987 SC 1239 Disting. Lalsingh v" State of M.P., 2005 (2) MPHT 346=AIR 2005 NOC 250 MP='2005 (1)MPI.J 348.
;,'i5;' Rules.- The State Government has made the following rules in exercise of the powers conferred by this section. These Rules shall be found under Rules.given s~parately..
:~,. "Alteration of Limit, Dis-establishment o'r Change of Head- Quarters .Rules 1994."
,:~!. '
126. Di!festablishment of village.-(I) The Governor or the authority auihorised by him may, by an order in writing. disestablish a Village:
ProVided that no such order shall be issued unless a notice of the proposal inViting objections from persons likely to be affected thereby the date to be specified therein has been published in the prescribed
186
(PA)178 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 S.123
..
,
improper acceptance of nomination paper due to incomplete information in the declaration did not provide a ground to set aside the election. Siyawati
v. Phoolwati, 2009(1) MPHT 301 '" 2009(1) JLJ 431 = AIR 2009 (NOC)
425 MP = 2008 (4) MPLJ 437 = 2009(2) MPWN 49.
21. Rules:- The State Government has made the following rules in exercise of the powers conferred by this section. These Rules shall be found under Rules given separately.
"Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995"
123. Power to expel person who refuse to pay fee.-When any fee has been imposed under this Act or the right to collect it has been leased thereunder, any person employed by the I[Panchayat or Gram SabhaJ concerned or any person duly authorised in this behalf by it or by the lessee to collect such fees. may subject to the condition of the lease to collect the fee expel from the place for the use of which a fee is payable, any persons who is liable to pay the fee but refuses to pay it.
124. 2[Panchayat or Gram Sabha) in default of owner or oc-
cupier may execute work and recover expenses.-Whenever under the provision of this Act any work Is required by the owner or occupier of any building or land .and default .is made in the execution of such .-.... work the 3[Panchayat or Gram SabhaJ, whe.ther any penalty is or is not provided for such default, may cause such work to be executed, and the expenses thereby incurred shall, unless otherwise expressly provided In this Act, be paid to It by the person by whom such work ought tobave been executed and in case of default of payment, it shall be recoverable as arrears of land revenue.
125. Changes of head'luarters of Gram Panchayat division, amalgamation and alteratian of Panchayat area.-(l) The Governor or the authurity authorised by him may .by_order _cha_ng~_the _he",d_-__ quarters of a Gram Panchayat or alter, the limits of a Gram Panchayat area by including within it any local area in the vicinity thereof or by excluding therefrom any local area comprised therein or amalgamate two or more Gram Panchayat areas and from one Gram Panchayat area in their place or split up a Gram Panchayat area and from two or more Gram Panchayat areas in its place: .
Provided that no order under this section shall be made unless a proposal in this behalf is published for ,inviting suggestions and objections tn such manner as may be pri!scribed an objections are considered.
(2)On the issuance of the order under sub-section (1)the Governor or the prescribed authority shall pass such consequential orders as
1 Subs. by M,P.Act 3 of 2001, w.e.f.26-1-2001.
2 Subs. by M.P.Act 3 of 2001, w.e.f.26-1-20Dl.
3 Subs.byM.P.Act3012001.w.e.f.26-1-2001.
187
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S. 122 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 199.. (PA)177
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.ofvates and passed .order far setting aside electian .of the returned cav.didate. the .orderis bad. Electian petitian suffered fram fatal defect. Amarsingh v. Sub-divisionaIOjflCer, 1997 (2) MPW 192. Rule 11: Pracedure nat fallawed.-AddL Callectar called the relevant recard and halding thal Gavernment dues were .outstanding against the petitianer and declared electian as illegaL Hald. that pracedure as envisaged under Rules 11 & 12 has nat been camplied hence the .order passed by the AddL Callectar is prima facie perverse, petitian allawed and the matter is remanded back ta the Add!. Callec- tar. Mahanlal Diwakar v. State .ofe.G., 2006(1) CGW 105. Rule 13:
Withdrawal .of petitian.-IIJ Mere filing .of an applicatian far withdrawal .of electian petitian will nat autamatically result inta withdrawal .ofelectian petitian. Can be withdrawn .onlywith the leave .ofthe specified .officer.This is a matter .ofcamman knawledge that in electians lat .ofpressure. threatening, maney and muscle pawer are emplayed and this sametimes resuits inta filing .ofa withdrawal ap- plicatian in the electian petitian. Thus. a pawer is given ta the specified officer to examine the genuineness of such a request and if the said autharity cames ta the canclusian that in the facts and circumstances .ofthe case, such a leave cannat be granted, it has a pawer ta refuse the same. Lee.lawatiy. K[lnhaiyalql,;!011(4)1'.l;.!'~13,l_".2.o12{llJW ... , ..
33.
[2[ See relative rule 13. Meena Singh'v. Prescribed Autharitlj.Cur1l- Callectar. 1998 (2) MPW 309.
'Rule 21: Recaunt .ofv.otes.-
C.onsideratian.-Mere rejectian .of an applicatian under Rule 80 filed by the petitianer is nat a sufficient ground far .ordering recaunt .of vates. Vidhyawati Lilhare v. Sub-Divisional Officer-cum-Prescribed Of- ficer, Lanji, Balqghat, 2010(1) MPW 115 = 2010(4) MPHT 92 = 201O(2)JW29.. -... --.-- ---- ---.-.... -.
Order .of recaunt.-11J An order of recount cannat be passed an mere asking. An issue shauld be framed, evidencebe recarded and the questian shouldbedecidedan goingthrough such an evidence.Secrecyofvates cannat be lightly revealed. Udaysingh v. Himmatsingh, 1999 (1) JLJ 200. [2]Recountofvotes cannat be .orderedeven an consent. Secrecyofvating cannat be braken lightly. Gajanan v. Ramcharan, 1997 (II) MPWN 3. Result materially affected .or nat. same cases.-[lJ Facts sup • .pressed, electi.on declared void.-The.nomination paper of a returned 'ca,ndidate itself i's round fuhave Deen'impr'ii]ierlY-acc'epted_oeeause'the returned candidate suppressed his someassets etc. Held, his result has been .obviouslym'aterially affected'therefore Ills electian praperly 'declared as vaid. Mehbaob Khan v. Lallu Bhai, AIR 2009 (NOe) 532 MP = 2008 (4) MPLJ,198 = 2008(3) JLJ 307 = 2008(5) MPHT 95.
, [2JReturned candidate lady suppressed fact ofhaving
(PAl176 PANCHAYAT RAJ AVAM GRAMSWARAJ ADHI., 1993 8.122 the pleadings. The verification at the bottom of the affidavit verifies contents of the affidavit to the extent of name of deponent, residence of the deponent am} filing of the petition. Thus it amounts to non- compliance of the mandatory requirement of Rule 5. Ram Das Singh v. Balran Singh, 2007(2) MPHT 58 (CG).
Rule 6: See also comments under S.36.
Rule 7: Deposit of security amount is essential.-Il] Fresh elec- tion petition filed by the petitioner by withdrawing the earlier petition. While filing the second election petition, security amount has to be deposited by the petitioner. Amount deposited with the first election petition cannot be treated as deposit of security for entertaining the second election petition. Election petition rightly dismissed by the Election Tribunal for non-compliance of Rule 7 of the Rules. Roopa Singh v. State ofM.P., 2012(2) MPW 435 = 2012(2) MPHT 502. 121The respondent NO.1has admittedly, deposiied a sum of Rs. 5001- with the Tahsildar, who is not a specified officer as defined under Rule 2(d). Deposit of the security amount is a mandatory requirement as held by the Supreme Court tn the case of M. Karunanidhi v. Dr. H.V. Hande and Ors., 1983(2) SCC 473. The deposit ofthe security amount with any officer, other then the specified officer, may be Sub-ordinate Officer, does not satisfy the mandatory requirements of the provisions of Rule 7 of the Rules. Ram Das Singh
v. Balran Singh, 2007(2) MPHT 58 (CG). Rule 8: Non-compliance of RUleid.ii'E:Iection PetitionO:[ lj f"stie ---
ofdefect of non-compliance of the rules can be taken up by the Election Tribunal at any stage and it is not incumbent upon the authority to do so only at the threshold. Bayulal Verrna v. Additional Collector, Chhindwara, 2009(4) MPW 548 = 2010(1) MPHT 477.
[2] Non compliance with Rules 3, 4 or 7. Prescribed Authority if after hearing the petitioner finds non-compliance of Rules 3, 4 or 7, it has no choice but to dismiss the petition. Divisiya wi 0 Naresh Paraste
v. Shanta wi 0 Narayan Singh Pusham, 2011(2) MPW 701 . .[3lProv;.sioil"areiiflinaatory.-(a) The provisionsofRules7-and-8are- mandatory. Where secunty amount was not deposited along with the election petition, such a petition is liable to be dismissed. Udaysingh v. Himmatsingh, 1999 (1) JLJ 200.
(b) But in a case where deposit was not made along with the election petition but made subsequently before expiration of the period of limitation and also before cognizance of the matter was taken, the election petition does not suffer from a fatal defect. AIR 1986 MP 49 Disting. Ravl Thakur v. Shivshankar, A;lR 1997 MP 136. See also Kailashnarayan v. Namdar, 1996 JW 3111,
(c)It is essential that an electionpetition shouldbe signed and verified. Further it is essential that it should accompanyas many copiesof such a petition as there are respondents. Udaysingh v.Himmatsingh, 1999(1)JLJ
200. .
(d) Where deposit of security amount was not made along with election petition and the S.D.O. took cognizance ofit, directed recount
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dispute. The Election Tribunal erred in dismissing the election petition by holding that there is non-compliance of Rule 3 of the Rules. The impugned order passed by the Election Tlibunal set aside. Natihulal v. Shakuntalabai, 2011(2) MPW 424 = 2011(2) MPHT 153.
[5] Neither the requisite copies of the Election Petition were filed -nor they are signed. Non-Compliance of Rule 3 by the Election Petitioner. Election petition dismissed. Rakesh v. Returning OfflCer Pallchayat Nirvachan, 2012(4) MPW 458 = 2012(5) MPHT 1~4_ Rr. 3 & 8:
[1]Failure to file copiesofelectionpetition- Petition to be dismissed.-[l] Where in compliance with the provisions of rule 3, election petition did not accompany as many copies of the same as there were respondents, the requirement being mandatory. such a petition was liable to be dismissed under the provisions ofrule 8.ShivdhariLahhesar v.Jaduman Bishwanath,
1999 (1) MPLJ 291.
[2] See also: Udaysingh v. Himmatsingh, 1999 (1) JLJ 200. [3]Petition should be attested by the election petitioner. In its absence the petition is liable to be dismissed. Attestation by advocatewouldnot save the petition. Omprahash Soni v. Ashokhumar, AlR 1996MP 43.
[4] Attested copies of documents supplied to respondents not signed by petitioner- Petition liable to be dismissed. Defect cannot be cured after. perjod oflilllitation, cAmolsinghv. HamirSing"" 19.96(1) MPWN122. ' .,. - .
-[51-ElectIon petition not rejected.-Petitioner herself was present at the time of presentation of the election petition before the specified officer and her thumb impression was taken on the right hand side corner of the said order sheet. Merelybecause endorsement made in the order sheet is that the petition was presented by her Counsel, it cannot be construed that the election petitioner was not presented at the time of presentation of the election petition and that she has not presented the election petition. In fact, the election petitioner was present before the specified officer along-withber CollnsHwhenthe election petition was presented. That being so, compliance of Rule 3(1] of the Rules of 1995 having been made and onthis ground the election petition can not be rejected. KaUashi v. Bharos~ 2006(3) MPW 477 =
2006(3) MPHT 404.
Rule 4: Where petitioner claims that he or any other person be declared elected in place of the returned candidate, he has to join only the contesting candidates as party and riot those whose nomination has been rejected or who Wittidrew his nomination. Harishonkar ~Su'Yavanshi v_-State of M.P., -1998 (2)Vidl:\i Bhaswar 225. Rule 5: Pleadings not verified.-Rule 5 prescribes that the elec- tion petition shall be signed by the petitioner and verified in the manner laid down in the CPC, for the verillcation of pleadings. In the present case on hand, admittedly, the petitioner has not complied with the mandatory requirement as prescribed under Rule 5(c) of the Rules, 1995. There is no verification of pleadings and the affidavit filed by the respondent NO.1does not disclose source of information contained in c r
190
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Ramswaroop u.Maharajsingh, 1997 (I) MPWN36. 19.Appeal and Revision.-Rules framed for election petitions etc. do not provide any.•.appeal or revision. Decision pronounced under Rule 23 has further been declared to be final under Rule 25.Hullllmchand u. Dheer ji,
2001 (1)JLJ 229.
20. Comments under election petition Rules of 1995.-Comments under M.P. Panchayats (Election Petitions, Corrupt Practices and Dis- qualificationFor Membership)Rules, 1995are as follows:-
Rule 3:
I' A. Requirements of Election Petition.-[lJ Extra copy of memorandum of Election Petition given to returned candidate/respon- dent No. 1 before Election Tribunal. It was not required to be signed and verified by the Election Petitioner. Natthulal v. Shakuntalabai. 2011(2) MPW 424 = 2011(2) MPHT 153.
[21 Rule 3 only provides signing and attestation of copies filed along with the election petition. Election petition filedby the respondent was accepted by the authority in accordance with the provisions of Rule 3 and thereafter notice on the said election petition was issued to the appellant. Nothing on record to establish that a signed and attested copy of the election petition was not sent to the appellant along with the notice. Appellant should have established this fact and as the best evidence which was available to the appellant was not produced by him. an adverSe iIlference has .rightlylJeen qrawr\ against I1irn,Addi, . tional copy. Le. an extra copy which was given to the counsel for the' appellant during the proceedings need not be signed and attested by the election petitioner as that is not the requirement of Rule 3. Shakuntalabai v. Nathulal.2011(3) MPW 119 = 2011(5) MPHT 35. B. Maintainability of petition.-[l] Election petition filed by respondent No. 6 was not duly verified and the security amount required to be deposited at the time of presentation of the petition. Petitioner not having complied with mandatory provisions of the Rules was not maintainable. Kana Manda! v. State of M.P., 2010(2) MPW 468 = 2010(3) MPHT 278: -- -_.
, [2J Election Petition not presented by the election petitioner by presenting it herself or through an authorized advocate. Election petition dismissed in view of provisions of Rules 3, 8 and 21. Kamlesh Nut v. Commissioner, 2012(4) MPW 385 = 2012(5) MPHT 127. [3JCopies of the election petition served on the respondent did not bear the signatures of the petitioner, were not verified and did not bear attestation as required by Rule 3(2). Election Tribunal rightly dis- missed the c!eclion petition. Bayulal Venna! v. Additional Collector, Chhindwara. 2009(4) MPW 548 = 2010(1) MPHT 477.
[4JIf a party is having the best evidence in his power and posses- simi he Is duty bound to produce il in the Court in order to resolve the controversy and that party shouid not place reliance on the abstract doctrine of onus of proof that it was no part of his duty to produce it. Respondent No. I sh,,"ld have filed the copy of election petition served upon her along wi1II the summons in the court in order to resolve the
191
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any opinion about the improper rejection or reception of the votes but only with a view to enable him to form such an opinion, he had proceeded to pass the order directing production of the ballot papers and for reacting of the votes.
An order of recount cannot be granted as a matter of course, which is to be resorted to only upon satisfaction that material facts pleaded in the petition and supported by the contemporaneous evidence justify. such an order. Kailashsingh v. Narayansingh, 1999 (1) JLJ 342. See also:
[4]Pushpendra Singh v. Padmakar, 1998 (1) JLJ 35l.
[5]Recount ofvotes cannot be ordered even on consent. Secrecy ofvoting cannot be broken lightly. Gajanan v. Ramcharan, 1997 (II) MPWN 3. [6]Also see Gayatri Bai v. Alka Sharma, 1997 (I) MPWN 98.
16. Marking of ballot paper.-[l] Marking of ballot paper by mark other than the prescribed one- Vote is rendered void. Ravi Thakur v. Shivshankar, AIR 1997 MP 136.
[2]Validity of ballot paper.-Putting of right symbol mark instead of cross mark - provision is directory & not mandatory.- Sub-rule 6(ii) of Rule 16 of M.P. Panchayat (Up-Sarpanch, President and Vice President) Nir- vachan Niyam, 1995 contemplates five category ofcases in which the ballot paper is held to be invalid. Putting ofany other mark than the one.prescribed . .undersuJj:ru"fe (4)ofsaTd'-i-ules'iii ii-ofcbntempliitei:! intne "category-for .---' declaring a ballot paper as invalid. If onlyma.rks are placed in a ballot paper in a manner to make it doubtful as to for which candidate the vote was intended to be given then the same. becomes invalid. The grounds con- templated for declaring a vote as invalid does not indicate that a vote cast by putting any mark other than the cross mark is invalid, that being so, the' requirement of putting cross mark is only directory in nature and not mandatory. Geeta Devi Yadav v. Archana, 2008 (1) MPLJ 261 = 2008(2)
JLJ34.
[31An extra symbol mark was printed ohthe ballot paper:'Held, when' ..._.. - "
it does not affected the election substantially then the Tribunal wrongly declared the election of petitioner as void. Smt. Kala Bai v. State of M.P.,
2006(4) MPHT 243.
17. Deficient amount of security deposited along with election petition- Before expiry of!imitation, deficiency made good- Petition cannot be rejected.- Where an election petition was presented without sufficient amount of security deposit but the deficiency was made good within the period 'prescribed for such presentatibn, the petition cannot be , ,dismissed on the ground of deficient seourity amount being deposited. AIR ~;_ 1957 SC 363 & AIR 1957 SC 444 Foll. Kailashnarayan u. Namdar, 1996
JLJ391.
But where the full amount of security is not deposited, the.petition is Ie liable to be dismissed. Mohan v. Shankarlal, 1996 (I) MPWN 126.
18. Exparte order final.- Where the returned candidate after filing reply neither appeared nor adduced allYevidence nor sought to get ex parte order set aside, the order becomes final and cannot be challenged.
192
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error, If proof is furnished of some errors in respect of some ballot papers, scrutiny and recount cannot be limited to those ballot papers only. In Ha~3bury's Laws of England it is observed that prima facie proof of error complained of must be given by the election petitioner and it must further be shown that the errors are ofsuch magnitude that the result ofthe election so far as Jt affects the returned candidate is materially affected, then recount is directed.
The Supreme Court, in AIR 1975 SC 283, has said, "recount can be ordered where (i) all the material facts on which the allegations of ir- regularity or illegality are founded are pleaded adequately in the election petition, (ii) the CourtfI'ribunal trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties. If the order of recount is not in accordance with the law and on the basis
of the material as required unner the law tilting of election result on account
of the recount, cannot be a ground for maintaining the order of recount and
thereby declaration of the result. Order of recount by Tribunal and on basis of recount order of setting aside election held not justified. Bahoranlal v. Ganeshprasad, AIR 1999 MP 7.
See also:
[2]Suman Santoshkumar Patel u.Bhanwati Mahesh Pratap, 1999 (1)
MPLJ88.
'[3]InAIR1989SC 640,Para'13'itis observed as follows,- .
"The settled position oflaw is that the justification for an order for examination of ballot papers and recount of votes is not to be derived from hind sight and by the result of the recount of votes. On the
contrary, the justification for an order of recount of votes should be
provided by the material placed by an election petitioner on the threshold before an order for recount of votes is actually made. The reason for this salutary rule is that the preservation ofthe safety ofthe ballot is a sacrosanct principle which camiot be lightly or hastily broken unless there is prima facie genuine need for it. The right ofa defeated candidate to assail the validity of an election result and seek recounting of votes has to be subject to the basic principle that the secrecy of the ballot is sacrosanct in a democracy and hence unless the affected candidate is able to allege and substantiate in acceptable measure by means of evidence that a prima facie case of a high degree of probability existed for the recount of votes being ordered by the Election Tribunal in the interests ofjustice, a Tribunal or Could should
not order the recount of votes.'"
In the instant case there was nothing beyond the pleading ofthe parties on record to enable the specified officer to form an opinion as required by Rule 21 of the Rules that there was in fact an improper acceptance or rejection of the votes or refusal of any vote or reception of any vote which was void. In fact the specified officer has proceeded to order the recount merely to ascertain whether or not the allegations contained in the election petition with regard to the improper rejection or reception ofthe votes were true or not. This clearly indicates that the specified officer had not formed
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a concise statement of material facts and clear evidence in support of the facts pleaded. Small margin ofvictory by itself is not a ground for ordering recount. A roving and fishing inquiry is not permissible while directing recount of votes. The requirement ofmaintaining secrecy of ballot papers has to be kept in mind before directing a recount. The requisites for ordering re-count are a prima facie case and pleading ofmaterial facts detailing the irregularities in counting of votes. Birjha Bai v. State of M.P., 2008 (2) MPLJ 591 ~ 2008(1) MPHT 203 ••AIR 2008 (NOe) 2306 MP[DB].
[8] Recounting order was not proper since the Tribunal failed to ap- preciate factual sc.enario in proper perspective. Further more, delegation of power of recount to a Committee and non. verification of ballot papersby Tribunal itself, is illegal and impermissible in absence ofany such provision. Smt. Sampat Devi v. S.D.a. cum Prescribed Authority Niwadi, Tikamgarh, AII~ 2007 (NOC) 2652 MP =2007(3) MPHT 462 = 2007(3) JLJ 301 [DB]. [9]Recounting of votes and invalidation ofvotes.-As far as advert. ing into the merit with regard to recounting ofvotes and invalidation ofvotes are concerned, these questions could be decide only after issues are framed and evidence is recorded. Ravindra Singh v. SDa cum PrescribedAuthority, Datia. 2006(3) MPLJ 570 = 2006(3) MPHT 150.
[10] See also: Ramavtar Budhouwa v. Smt. Susheela Singh, 2007(1) JLJ 54;
Rafik Kiian-v.cS.D.G:Tuni'.Pres.-Authority;: 2007(3) -.J1i;r2if4;-'--'C:'C -::: ::: c-. Ramavlar Budhouwa v. Sml. Susheela Singh, 2007(1) JLJ 54;
Rooprani (Sml.) v. Sub-Divisional affic~r, Damoh, 2007(3)-JLJ 173. -I
[11] Recounting of votes in panchayat election.-In an election petition before the Tribunal, there was no allegation whatsoever that during the process of initial counting there was non-supply of adequate light and there was illegality in the counting of votes on that score. Filing of an application for recount does not necessarily mean that the election petitioner can ask for recount of votes before the Tribunal on the ground 'that his a.pplicati
imperative necessity and a foundation has to be made by bringing adequate material on record and adducing cogent evidence. There was nothing in evidence that irregularities or illegalities committed by the Returning __ Officer. In the absence ofsuch material, the election Tribunal had fallen into gross error by directing recounting of votes. AIR 1997 se 3072, AIR 1964 se 1249, AIR 1966 se 773, AIR 1972 se 1251,AIR 1973 se 215, AIR 1975 se 283, 376 & 701, AIR 1980 SC 200, AIR 1984 se 396, AIR 1993 se 3137, -(1999) 4 SCC 508, (2000) 8 sce 355 & (2001) 3 SCC 81, ReI. Chandrawati v..'l!ijay.II.ajkul]lari, 20()2"(;l)MPL.J 7"=200$.J2) J.LJ232.
15. Order of recount. Order made on the result of illegal order of reconnt liable to beset aside .•[l] In AIR 1982 Supreme eourt.1569, it is observed that when a petition is for relief of scrutiny and recount on the allegation of misconduct, the petitioner has to offer prima facie proof of errors in counting and if errors in counting are prima facie established a recount can be ordered. If the allegation is of improper rejection of valid votes which is covered by the broad spectrum of scrutiny and recount because of misconduct, petitioner must furnish prima facie proof of such - r
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\:I,'hichit must discharge in accordance with law. Asim Saha v. Collector, Kunkel', 2001 (l) MPHT 6 (CG).
[4J Recounting of votes- Permissibility.-The difference of votes polled by the winning candidate and the one who lost was of one vote only. It was contended by the candidate who lost that her legal votes were rejected, henee order of recounting by the Sub- Divisional Officer is quite quito proper and he has done justice in the cause. Ramrati v, S.D,a., Sidhi, :l005 (3) MPLJ 101. ,
15J Uccounting order proper ..(i) The pleadings and proof in the matter of recount have relevance for the purpose of determining the question of jurisdiction to permit or not to permit recount. Since the polling and counting both performed in absence of sufficient light therefore recounting order was proper. Rajesh Kumar Banshlwr v. Malti Parmar, AIR 2009 (NOC) 751 (M.P.) = 2009(2) MPHT 391 = 2008 (4) MPLJ 375 = 2009(1) MPWN 11. See also: Ramavtar Budhouwu v. Smt. Susheela Singh, 2007(1)
JLJ 54.
(ii) Difference of votes was only 17. Electricity failed twice and votes w€~recounted in candle light. Sufficient circumstances to order for recount. Rakib Mohammad v. District Collector, AIR 2003 MP 39=2002 (3) MPLJ 415=2002 (5) MPHT 487 (DB).
(iii) In counting, difference 'ofvotes was only one, allegations made that valid votes were rejected and prayer for recounting made, petitioner objected thatelec~ionpetition,not prop.erly verified but the S.D.O. found i(properly verified. Held, that recounting order was -pl'oj:ie-Fa-iter conslderfng-evidence"
on record. No interference called for. Ram Rati v. Sub-Divisional Officer, Sidhi, 2005(4) MPHT 74 = 2005(3) JLJ 48.
[6J In ex parte proceedings recounting order by tribunal.-No issue framed by the Election Tribunal because the proceedings were ex parte still Tribunal recorded evidence and found that earlier two applications for recounting before Presiding Officer and before Returning Officer not con- sidered and no order was issued on both applications. Result of counting of voles was also equal and matter decided by drawing lots. Held, no fault in recounting oi.der by Tribunal. Shivan Lal v. S.D. a: (Rev.), Multdi, 2006(4) .~ ffIr-aT 401.
17] Recounting order not permissible.-(i) Tribunal directed recount- ing of votes for the reason that volume of rejected votes was very high and 2173 votes were rejected. Held, order of recounting of votes is not permissible only for the reason of high volume of rejected votes when there is no specific irregularity in the counting is pointed out and unless no sound legal reasons found. Kamlesh Bai v. Upper Commr. Bhopal & Hoshangabad, 2008 (2) MPLJ 558 = 2008(2) MPHT 466 = AIR 2008;(NOC) 1318 MP.
(ii) The petitioner not stated about any irregularity or illegality in respect of poling in booth NO.20. Nothing has be.en brought on record. The questionlhat emerges for consideration is whether there is adequate plead- ings and ample evidence to direct recount of votes. An order for recount cannot be ordered as a matter of course unless the electipn petition had laid the foundation and there is clinching evidence to support the case set up by the election petitioner. An eleCtion petition seeking a recount must contain
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MPLJ 121=2002 (3) MPHT 547.
12. Aggrieved person.-Locus standi ofa person to challenge the order on an election petition, passed by the election tribunal stands on a different pedestal than that of public interest litigation. It is implicit in the exercise of the extraordinary jurisdiction that the relief asked for must be one to enforce a legal right. The meaning of the expression 'person aggrieved' may vary according to the context of the statute and the facts of the case, nevertheless, normally 'personal aggrieved must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced, which has wrongfully deprived him of something or wrongfully refused him something, or wrongfully affected his title to something. In the instant case no decision against the petitioner had been pronounced and he was not deprived of anything. He wa~not a candidate in the election. The petitioner did not appear at the trial of the election petition although he claimed to be an election agent of the returned candidate and woke up for the first time by filing this writ petition. Therefore, the petitioner was not a person aggrieved to maintain the writ petition. Bhushan Ramlal Kashyap v. S.D.O.Janjgir, 1998 (2) MPLJ 710.
13. Setting aside of election.-!l] Election once held can be set aside by an election petition only which is allowed on its merits. Udaysingh v. Himmat Singh, 1999 (1) JLJ 200.
. [2] Di.squalificati!>n Sl!pp"
14. Election petition-Recount of votes.-[ 1) To make out a case seeking direction for recount. the facts must be pleaded and it should be supported by material particulars. Until & unless prima facie satisfaction of the Court is recorded, secrecy of the ballot papers ought to be maintained. Merely on vague allegations recount can not be directed. Ganesh Ram Gayan v. Bagdiram, 2013(2) MPW 147 = ILR
2013 MP 1793. .
[2) Held, mere rejection of an applica~on under Rule 80 of Nir- vaeJian' Niyani filed' by -the petitioner'i,r nota' sufficient ground' for ordering recount of votes. Vidhyawati Lilhare v. Sub-Divisional Officer-
. 'cum-Ptescribec1"Offrcer. LartA'BalagMt; 2010(1) MPW 115'= 2010(4) MPHT 92 = 2010(2) JLJ 29. .
[3]When a plea is.accepted by the Election Tribunal regarding rejection or acceptance of certain votes, then it is the paramount duty rather pious duty of the Tribunal to itself count and recount the votes. The power to recount cannot be delegated to third parties as it is the duty of the Tribunal
)
196
the petitioner in writ petition such as seeking declaration as duly elected and claiming right to function as such. Sugnabai v. Election Officer, 1996 JLJ 48=1996 MPLJ 134.
9. Nomination paper rejected. Remedy.- Where any nomination paper is rejected by. the Returning Officer under Rule 35, his order is final subject to revision, if any, under rule 36. The Election Commission has no jurisdiction to review' such an order either on any application or suo motu. The remedy lies in an election petition only under the provisions of this section. State Election Commission M.P. v. Ras Bihari, 1995 JLJ 651=AIR
1995 MP 245 (DB).
10. Petition not attested by election petitioner. Effect.-[I] Where election petition was not attested by the petitioner as required by sub-rule (2), the provision of the rule being mandatory, failure would lead to sum- mary dismissal of election petition. Attestation by Advocate would not save the petitioner. Dr. Omprakash Soni v. Ashok Kumar Bhargava, AIR 1996
MP43.
[2]The provisions are mandatory. Attested copies of documents supplied to respondents not signed by petitioner. Petition liable to be dismissed. Defect cannot be cured after expiry of period of limitation. Amolsingh v. Hameersingh, 1996 (I) MPWN 122.
[3] Petition properly attested.-(a) A perusal of the copy ofthe election petition which was accompanied with the petition and was supplied to the ,petitioner, reveakthat on each and eyery page the third respondent-has put, her signature. In the circumstances, mere non-mention of'true copy' would
. not be sufficient to hold that the Rule 3(2) ofthe Rules has not been complied with. Ku. Parwati Bai Thakur v. State of M.P., 2007(3) MPHT 63.
(b) Photo copy of petition supplied to the respondent was signed by the petitioner but not mentioned words "attested true copy" held it is substantial compliance of Rule 3(2) and not liable to dismiss under Rule 8.Mrs. Indira Singh v. Mrs. Anjana Sharma, 2006(4) MPHT 152.
(c) Signatures found but "true copies" or "attested as true copy not mentioned held it is proper presentation . .subba Rao v. Member, Election Tribunal, AIR 1964'SC 1027 & Rameshwar Dayal Arale v. Munna Singh Bhadoria, AIR 1992 MP 161 [Relied on.] Ravindra Singh v. SDO cum Prescribed Authority, Datia, 2006(3) MPLJ 570 = 2006(3) MPHT 150.
11. Trial of petition.-[l] Trial of election petition should be by some judicial officer or by an officer higher than the Sub- Divisional Officer. The specified Officer should have minimum knowledge of election law. Udaysingh v. Himmat Singh, 1999 (1) JLJ 200.
[2] Age of returned candidate cannot be, decided solely on the basis of the age shown in the electoral roll. Other evidence adduced should also be considered. Fakhruddin v. Fazal Khan, 1997 (I) MPWN 145.
[3] Election petition and written statement thereto may be allowed to be amended. Parties should be given full opportunity to plead and prove their case. Chhaganlal v. Ramchandra, 1998 (1) Vidhi Bhaswar 243. [4]Framing ofissues and recording of evidence are necessary for proper adjudication of an election petition. Kalka Prasad v. Ramji/al, 2002 (3) (PAlI6S PANCHAYAT RAJ AVAM G1!AMSWARAJ ADHl., 1993
8.122
197
• • •• . .••
S. 122
PANCHAYATRAJAVAMGRAMSWARAJ ADHI.,1993(PA)167
tion, amendment proposed and election petitioner moved an application seeking leave to join the two candidates of the election Respondents NO.2&
3. Since the limitation of30 days from the date ofresult of election has Men prescribed, an Election Petition against the aforesaid persons Resp. NO.2 & 3 herein would be barred by limitation on the date ofpresentation of the application for their joinder by way of amendment. Mohammad [sha v. Vasl/dea, 2008 (l) MPLJ 547.
[2] Change of relief 01' something new, by amendment applica. tion. not provcd ..Petitioner seeking amendment of material particulars so that correct particulars of election petition may come into notice of the Tribunal. Relief which was prayed initially by petitioner was that "the election petition filed by the petitioner be allowed, recounting be made and election petitioner be declared as elected member". It cannot be said that it is a change of relief or something new has been prayed. In initial prayer, declaration of election of respondent as void was implied. By amendment prayer was made specifically. Order allowing application for amendment is therefore proper. Ajay Mar/wm v. Addl. Commissioner, AIR 2007 (NOC)
829MP.
8. Writ Petition.-[I] Availability of an alternative is not always an absolute bar for maintainability ofwrit petition. Sukhnandan Patel v. State of M.P., 2003 (1) MPLJ 220=2003 (2) JLJ 74.
[2JOrder of Single Judge against petitioner amply supported by plead- ings anq- evidence anTe_cord. Order confirmed. -Ram.nivas v..Pooran, AIR-_- 2002 MP 31=2001 (3) MPHT 347 (DB).
[3] In election ofVice-President of Zilla Panchayat, where nomination paper ofthe petitioner was not accepted, he should have agitated the matter by filing election petition to the Tribunal. Writ petition dismissed. Nanhe Bhai Singh v. State of M.P., 2002 (4) MPLJ 161.
[4] In an election to the post of Vice-President in reserved category of Scheduled Tribe, there was serious dispute with regard to social status of returned candidate. No such objectionwas raised by the other candidate at the time scrutiny of nomination paper before the Election Officer. Proper remedy was to approach the Election Tribunal to determine social status of the returned candidate. No writ lies. Ashok Kumar Rawat v. State of M.P., 2002 (4) MPLJ 446=2002 (4) MPHT 246.
[4A] Direct writ petition when justified.-Despite alternative remedy a writ petition may be preferred directly :-
(il where the Court or the Tribunal lacks inherent jurisdiction; or (iij when a writ is for enforcement"offundamental rights; or
(iii) there is a violation of principal oDnatural justice; or (Iv) where vires' of the Act is in question.
. .'PW !l1flJl.q!'t9ry.3't~Il.t-,~f.theprQ".isi.oJlspuld!ie.r.!'lfiX~
15] No challenge to election by writ petition.- The section con- templates challenge of election only by election petition. It cannot be chall~nged by way of a writ petition and as such no relief can be claimed by
• r
.
l ,
198
Petition liable to be dismissed. Rama Banjara v. Kanchhedilal, 1998 (I)
MPWN63.
[2] Where petitioner claims that he or any other person be declared elected in place of the returned candidate, he has to join only the contesting candidates as party and not those whose nomination has been rejected or who withdrew his nomination. Harishallkar Suryavanshi v. State of M.P., 1998 (2) Vidhi Bhaswar 225,
[3) Apart from other prayers, where the petitioner also prays in the petition that he be declared elected, it is not necessary that such candidates who withdrew their nominations be also made party to such petition. Devram v. Sadu, 1996 JLJ 240.
6-A. Burden of proof.-[J) It is settled law that where the election petition is filed by the election petitioner contending that the returned candidate was disqualified to be elected on the ground that she was below the prescribed age, it is for the election petitioner to establish that the returned candidate was disqualified and not the candidate. BasantiBai v. PremwatiBai, 2012(4) MPW 257 = 2012(5) MPHT 386. [21Contents of petition & its proving.-Burden to prove case on the basis of proper pleading is on the election petitioner. Impugned order of Tribunal passed in mechanical manner declaring the election is invalid and directing for recounting ofvotes set aside. If the contents of election petition are examined injustaposition to the evidence led by the election petitioner, it would be clear that th~ pleadings are not supported with the high-degree of evidence which is required in an election matter to support the pleading. The burden to prove the case is always on the shoulder of the election petitioner. If election petitioner fails to prove the allegation to the hilt on the basis of proper pleadings and evidence of a very high degree, merely on the basis of suspicion, election cannot be declared illegal and sacrosancity of votes cannot be permitted to be destroyed. In this view ofthe matter, the method adopted by the Election Tribunal in shifting the burden of proof on the present petitioner cannot be upheld. The Tribunal in a mechanical manner declared the election as invalid and directed for recounting. The said order is set aside and tne-petition is allowed. Hanuman Singh V. State afM.P., 2012(3) MPLJ 191 = 2012(5) MPHT 162.
7. Remedy when available.-(l) The remedy of filing election petition is available only when the election is notified. Sugnabai v. Election Officer, 1996 JLJ 48 = 1996 MPLJ 134.
(2) Petition not necessary when person disqualified for the post of office bearer.-Respondent NO.7disqualified for being office bearer of Panchayat on ground ofnon disclosure that !:Iehad been convicted for offence of murder, this fact not denied by him. He taised objection that he could be disqualified only by way of filing election petition. Held, that Article 243-0 cannot destroy basic structure of judicial review under Article 226 of the Constitution. High Court is not prevented from declaration as to qualifica- tion under Article 226. Election of member set aside. Ramkumar v. State of M.P., 2013 (4) MPLJ 207 = 2013(4) MPHT 161 = ILR 2013 MP 1578. 7-A. Amendment application.-!I] Seeking amendment for joinder - Barred by limitation.-After 3 months from the date of Notification of elec-
.,
(PA)166 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993
S.122
199
PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)165 .I
• •
S. 122
. . • •
• totally inconsequential. Rejection of nomination paper is a ground for filing election petition under Rule 21 of the rules but said rule has to succumb to the letter and spirit of language employed under S.122 of the Act which bars filing of election petition in absence of notification. When the Act does not permit filing of petition, rule renders no assistance to the person aggrieved. Ajab Rao v. State of M.P., AIR 2001 M.P. 296=2001 (3) MPLJ 251=2001 (4)
MPHT461.
[3]Procedure to be followed by S.D.O. if petition is incompetent • .-When an election petition was not duly constituted is filed before the S.D.O. and the S.D.a. finds that the question raised in the petition can be con- veniently decided by a higher officer in exercise of the powers under S.36 then a reference certainly could be made by him because S.36(3) clearly provides that the Collector may give his decision either on an application made to him by any person or on his own motion. Bhllvaneshwar Prasad v. State of M.P., 2009(1) MPLJ 434 (DB) = AIR 2009 (NOC) 242'MP (DB) = 2008(5) MPHT 72 (DB) = 2008(3) JLJ 293.
[4] Invalid Dismissal.-On the ground of pre-mature and election has not been notified.-Counting of votes took place and results declared there were irregularities in it. The SDO did not care to find out as to when and in what manner the result was declared and election was notified. He simply mentioned.in the order that as the. election is not notified and the election
. petitionfiled before 'notificationl. pre:matu're: There is no enquirybythe . election tribunal with regard to the fact as towhen and in what manner the election results and the election itself was notified. Held that the SDO not considered all questions and has dismissed the petition even without in- dicating a date when the election is said to have been notified and the results were declared. Instead ofconsidering the question properly after conducting proper enquiry action taken for dismissing the election petition only on the ground that election in not notified was not proper. The order of SDO has to be quashed. Rauindra Singh u. SDO cum Prescribed Authority, Datia, 2006(3) MPW 570 =2006(3) MPHT 150.- .... _._-
[5] Election petition not maintainable when vacancy was filled up as provided under S.38.-No election petition is maintainable when a vacancy is filled up in accordance with the provisions contained in 8.38. Order passed by specified officer setting aside the election of Sarpanch under 8.38 was set aside by Collector in exercise of his revisional powers. Order ofCollector not bad in law. Shiulwmar u. Collector,Mandla, 2001 (2) MPLJ 464 =AIR 2001 NOC 107 MP = 2001 (5) MPHT 619.
[61 Petiti()nJncompetent.-Where a petition is held to be incompetent, any finding given in such petition cannot-be.held.to'be final. Anjana Mulkalwar u. State of M.P., 1998 (2) JLJ 328.
5.A. Disposal of Election Petition.-In sub-section (3) it is provided that petition shall be enquired into or disposed of within six months according to such pro~edure as may be prescribed.
6. Parties to petition.-[l] Petitioner claiming to have been duly elected and seeking such declaration against the returned candidate in an election petition. He did not join other candidates as parties to such a petition.
200
[l-C] There is a satutory bar provided in admitting election petition beyond period of30 days from the date ofnotification, Provisions ofSection
5 Limitaion Act are not applicable in such proceedings. Order admitting petition condoning delay on extraneous consideration without there being any explanation for the delay wouldbe contrary to statutory provisions and cannot be sustained. Kalka Prasad v. Ramjilal, 2002 (3) MPLJ 121=2002
(3) MPHT 547.
[2] The limitation prescribed for filing of election petition cannot be extended. Provisions ofLimitation Act, including its section 5, do not apply to such presentation. Kishan Singh v. Harveer Singh, 1998 (I) MPWN 83. 4-A.Scope ofS.122.-Aperusal ofS.122 ofthe Act shows that a complete codehas been provided for challenging of an election by way of an election petition. Satya Narayan v. Addl. Commr., Ujjain, 2008 (1) MPLJ 505 =
AIR 2008 (NOC) 1032 MP.
5. Election petition:
[11 Election petition towards reserved seat.-The seat was reserved for S.T. whereas the petitioner belonged to O.B.C. Case of petitioner was that petitioner was Sahu by caste and after leaving her husband who was Sahu by caste had started living with a person who was Panika by caste. Held, it is clear from affidavit filed by petitioner before High Court descrtbed her as Savitri Sahu @ Supamakha w/o . .Shivlal P"nika. Though, an explanation given by the learned counsel thatitwas the Il'listake of tIie counsel; that a wrong afftdavitwas 'filed,.,. However, there is no matertal on record ~o establish that any action has been taken against the respective counsel for their alleged mistake in allegedly changing the identity of the petitioner. In absence whereof, it has to be accepted that Savitrt Panika and Savitri Sahu @ Suparnak- h" are one and same. Therefore findings given by prescribed authority that petitioner belongs to Sahu caste cannot be faulted with. Savitri Panika v. State of M.P., ILR 2013 MP 2370.
[I-A]Election Petition filed byunauthorizedperson.-Petitionfiled by the petitioner's Advocate who was not specifically authorised to .doso, . election petition liable to be dismissed. Kamlesh Nut v. Commr., Revenue Division, Shahdol, 2013(1) MPWN 6.
[2] Election petition- Maintainability- Rule 90 of Nirvachan Niyam-Rejection of nomination paper of a single candidate-No notification-Held petition not maintainable.- Where there was solitary candidate for election to officeofSarpanchJPanch and his nomination form was rejected, there could be no election petition as there would be no declaration of result of election and conditions prescribed by rule 90 would not be fulfilled. Once the nOmination papers:were rejected there was no election and there was no 'returned candidate. In absence of returned candidate there could not have been declaration of the result and as a consequence thereof there co;'ld ~ot have' been notification as envisaged under rule 90 ofNirvachan Niyam, 1995. In absence of the notification as per law laid downin Rule 90, the application before the specifiedofficerwas incompetent. It is well settled in law that when a proceeding is incompetent
"nd not maintainable before the authority the findings given by him are
PANCHAYAT RAJ AVAM GRAMSWARAJ ADHI., 1993(PA)164
• •
.' .
• •
S. 122
,
201
•
S.122
• • •
PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)163
\
• [31Rule 9 does no",here say that the copy required to be verified under Rule 3 is only to be served upon the respondenl>. Ho",ever a juxtapose reading of Rule 9 ",ith Rule 3 ",e must observe that the copies submitted under Rule 3(2) must only be supplied to the party/respondent after they put their appearance in the Court. Lata Patte v. Smt ..Kamlesh Gautwn,
2008 (1) MPLJ 388.
[4] As far as the presentation of election petition is concerned, provisions of relevant rules 3 and 8 are quite clear. An election petition under rule 3(1) should be presented by the petitioner petsonally or by a petson duly authorised in ",riting in this behalf by the petitioner. Where a petition ",as presented by the la"'yer of the petitioner ",ho "'as not so authorised; presentation of petition is not proper and under the provisions of rule 8, such a petition is liable to be dismissed. Suman Santoshhumar Patel u.Bhanwati Mahesh Pratap, 1999 (1) MPLJ 88.
[51A voter of the constituency can alone file an election petition. But where petition, is neither filed in time and security also is not furnished, such a petition cannot be entertained. Anjana A1uUwwar v. Bhanu Yadav,
1997 (2) JLJ 78.
[6J Verification of Election petition- Substantial compliance.- The object of verifying the pleading is fix on the party responsibility about truthfulness of its contents and the same Rule has been made applicable to the election petition filed.under S.122 ofthePanchayat Act.\Vhen thefacts. are v;,;.ifiea by aflidavit;thenthe rule has been: substantiaily compiled'with. Ramrati v. S.D.a., Sidhi, 2005 (3) MPLJ 10,1.
4. Limitation.-[ll Effective date for starting limitation as prescribed in section 122(2) is the date of the notification of the election. Election petition cannot be admitted beyond the period of thirty days from the notification of the election. Only consequence ilf causing the delay in filing the election petition would be its dismissal. Mumbi Bai v. State of M.P., 2012(2) MPW 456 = 2012(2) MPHT 305. [I-A] Election petitioll barred by limitation.-Filing of the election .. _ . petition after expiry of thirty days is not maintainable being barred by limitation and even if the S.D.D. issued notices to the parties, the same would not confer any jurisdiction upon him because he has no jurisdiction to condone the delay and proceed further with the matter.Bhuvaneshwar Prasad v. State of M.P., 2009(1) MPLJ 434 (DB) = AIR 2009 (NOC) 242 MP (DB) = 2008(5) MPHT 72 (DB) = 2008(3) JLJ 293.
[l-BJ An election petition was maintainable within a period of30 days. Elections had been held on January 29,2005. The election petitioner filed .the electipn Retition on February 28, 2005. ¥ per the provisions of the fJen-eralClauses Act;tIie daydn whicn the eleCtions were held'in January 29, had to be excluded for computing the period of limitation. Thus, the - .\l.leejion petition had been' filM -within the .period of limitation . Even otherwise it is fairly informed by the learned counsel for the parties that February 27, 2005 was a Sunday. Thus, the election petition had been filed on next opening day Le. February 28, 2005. Satya Narayan v.Addl. Commr., Vjjqin, 2008 (1) MPLJ 505 = AIR 2008 (NOC) 1032 MP. '''' See also: Mohammad [sha v. Vasudeo, 2008 (1) MPLJ 547.
202
- ,
8.122 ,
;
[i-A] Vakalatnama does not authorise an Advocate in writing to present .the election petition before the Competent Authority. Urmila Devi v.Return- ing Officer (Panchayat), 2008(4) MPHT 410 = 2008(3) MPWN 92.
[2] Enclosement of receipt not compulsory in each case.-Rule 7 does not say that an election petitioner is bound and obliged to file a copyof the receipt along with the election petition. If the Presiding Officer receives the security cost in cash and does not issue the receipt immediately there- after, then such a lapse or inaction on-the part of the Presiding Officer or his office, election petitioner cannot be allowed to suffer. Lata Patel v. Smt. Kamlesh Gautam, 2008 (1) MPI.J 388.
1. General interpretation.-[I] It has been specifically provided that an election conducted or contested under the provisions of this Act can be called in question only by an election petition filed in the prescribed manner under this Act and none else. It is also provided that such an election petition shall be presented to the following officers:-
(i) Sub-Divisional Officer in the case of Gram Panchayat;
(ii) Collector in the case of J anpad Panchayat; and
(iii) Divisional Commissioner in the case of Zila Panchayat. [2]Sub-section (2)makes provision to the effect that the election petition as aforesaid should be presented within 30 (Thirty) days ofthe election being notified.
[2-A]By amending Act 26 of 2012, w.e.f. 26-5-2012, it is provided that such petition shall be enquired into or disposed of within six months according to such procedure as may be prescribed.
[3]Notification ofelection.-(l) Rule 90 ofthe Nirvachan Niyam, 1994 makes provision for notification of election. It also prescribes the manner in which such election is to he notified.
(2) Rule 47 does not relate to notification of election but it relates to dechirationof candidate elected un\lpposed. Pramilabai v.'Sub.Divisional Officer, Bareli, 1999 (2) MPLJ 209.
(3)The limitation of 30 days for filing election petition would start from the date when such election is notified in the manner prescribed by Rule 90. lt is not to be reckoned from the date of declaration of result either of an unopposed candidate or that of a candidate who won in the_contest. Pramilabai v. Sub- Divisional Officer, Bareli, 1999 (2) MPLJ 209 ..
2. Jurisdiction to hear election petition.-In the case of Janpad Panchayat, election petition is.to.be heard by.the Collector. He can transfer the same for hearing to the Additional Collector. Rajhumar Shivhare v. Anand Kumar, 2000 (2) JLJ 121=2000 (3) MPLJ 391.
3. Presentation of election petition. -[II Invalid presentation.-The.. -- - - - - election petition was not presented by the petitioner but it was filed by somebody else. Therefore, a election petition presented contrary to the provisions of sub-rule (1) of Rule 3 is not maintainable and has to be dismissed in view of the mandatory requirement of Rule 8 of the Rules, i995. Geeta Devi Yadav v. Archana, 2008 (1) MPW 261 = 2008(2)
JW34.
(PA)162 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993
203
• • • • l S.122 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHl .. 1993 (PA)161 -----------_._- ----- ----- ------
f
I
L
)
I,
I
2
3
(i) in case of I[Gram Panchayat or Gram Sabha) to the Sub- Divisional Officer (Revenu~;
(ii) in case of Janpad Panchayat to the Collector; and
(iii) in case of Zila Panchayat to the Divisional Commissioner and not otherwise.
(2)Nosuch petition shall be admitted unless it is presented within thirty days from the date on which the election 2[xx xl in question was notified.
3[(3)Such petition shall be enquired into or disposed of within six months according to such procedure as may be prescribed.]
COMMENTARY
SYNOPSIS
1. General interpretation.
2. Jurisdiction to hear election petition.
3. Presentation of election petition.
4. Limitation. 4-A. Scope of S.122.
5. Election Petition. S,A. DisposaL()fEJectionPetition... ---C'--_'-- .. __.,0 _
6. Parties to petition. 6-A. Burden of proof.
7. Remedy when available. 7-A. Amendment application. 8 .. Writ petition . .9. Nomination paper rejected-Remedy.
10. Petition not attested by election petitioner-Effect.
II. Trial of petition.
12. _Aggri_~v~dP~[~OIJ, ." _
13. Setting aside of election.
14. Election petition-Recount of votes.
15. Order of recount-Order made on the result of illegal order of recoi..mrIiable to be set aside.
16. Marking of ballot paper.
17. Deficient amount of security deposited along with election peti- tion-Before expiry of limitation, deficiency made good- Petition
. cannot be rejected.
18. Exparte.orde<-finai.
19. "AppeaLi'nd Revision,
20. Comments under Election petilion Rules of 1995. --- :rl:-1{u!es"':':: •...-.•._""""'•.,...--,-,- !';; -, •••• - -~ ••• ". 0-"- •••• Subs. by M.P.Act 3 of2001, w.e.f.26-1-2001.
Omitted by M.P. 26 of 1994 130.5.941.
Subs. by M,P. Act No. 26 of 2012 [23-5-2012]'which was as follows:-
MSuchpetition shall be enquired into or c:llsposed of according to such procedure as
may be prescribed." .
204
• •
•
•
(PA)160 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993
8.118
I
118. Records of 1[Panchayat or Gram Sabha) open to inspec- tion.- Subject to rules made under this Act and on the payment
Rules:- The State Government has made the followingrules in exercise of the powers conferred by this section. These Rules shall be found under Rules given separately.
"Inspection of Records and Copies Rules, 1995".
119.' Method for serving documents,' etc.-Save as otherwise provided in this Act the service of any notice or other documents under this Act or under any rule, byelaw or order made thereunder shall be
effected in the prescribed manner.
Rules:- The State Government has made the following rules in exercise of the powers conferred by this section. These Rules shall be found under Rules given separately.
"Panchayat (Method of Service of Notice and Document) Rules, 1995"
120. Entry for purposes of Act. etc.-it shall be lawful for the office. bearers of a 3[Panchayat or Gram .S"bl),,] 9r officer authoris.ed by such 4[Pancliayat or Gram Sabha] In this behalftci enter in connection WIlli . any work relating to the 51Panchayat or Oram SabhaJ between sunrise and sunset with such assistants as he may deem necessary into and upon any building or land:
Provided that no building or land which may be occupied at the time shall be entered unless a written. notice of twenty four hours has been given to the occupants:
Provided further that, in the case of building used as human .dwelling due regard shall be paid to the sociaLand religious customs. of the occupiers.
121. Bar to interference by CourtsiiJ. electoral matters.-The validity of any law relating to the delimitation of constituencies or the allotment of seats in such constituencies, made or purporting to be made under this Act shall not be called in question in any Court.
122. Election petition. -(I) An election 6[xx xJ under this Act shall be called in question only by a petition presented in .the prescribed
manner:-
1 Subs.hyM.P.Act3 of2001.w.e.f.26-1-2001.
2 Subs. by M.P.Act 3 of 2001, w.e.f.26-1~2001. '3 Subs.byM.P.Act3 of2001.w.e.f.26-1-2001.
4 Subs.byM.P.Act3 of2001.w.e.f.26-1-2001..
5 Subs.byM.P.Act3 of2001,w.e.f.26-1-2001.
6 OmittedbyM.P.26of 1994130.5.94J.
,
.
\
205
•
S.117
• •
PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)159
sub-section (1)or divert such land to a purpose other than the purpose for which it has been acquired.
114. Central Government or State Government not to obtain licence or permission.-Notwithstanding anything contained in this Act or any ruies or byelaws made thereunder the Centrai Government or State Government shall not Derequired to obtain any permission or licence in respect of any property of such Government or any place in occupation or under the control of such Government.
115. Power of Panchayat to borrow money.-Subject to the restriction contained in any enactment for the time being in force relating to raising of loans by local authorities a Panchayat may. with the previous sanction of the State Government raise a loan for carrying out the purposes of this Act:
Provided that nothing contained in the Local Authorities Loans Act. 1914'(No. 2 of 1914) or the Madhya Bharat LocaiAuthorities Loans Act Samvat. 2007 (1950) (No. 64 of 1950) and rules made under the aforesaid enactment shall apply in respect of loan taken from the Government or any other authority constituted under any law for the time being in force and which is in receipt of a grant from the State Government.
Rules:- The State Government has made the followingrules in exercise of the powers conferred by this section. These Rules shall be found underRulesgivensepatately," . .. -.. c , cc.-., .. c, ..c -
"PanchayaJ (Lo.ans from Qovernment or F,in,anc_iQ-.lJns(itutiof.1,s)}lulf?$J _ 1999" .
116. Writing off of irrecoverable sumsand unusable material.- .The irrecoverable sums due to Panchayats and such material as may not be useful shall be written off in the prescribed manner. Rules:- The State Government has made the followingrules in exercise of the powers conferred by this' section. These Rules shall be found under Rules giv~en-"-e.Par-"telY"_ . .. _ _ ..
"Irrecoverable Sums Rules, 1995"
117. Prohibition of remuneration to members.-No member of a Panchayat shall be granted any remuneration or allowance of any kind whatsoever by the panchayat except in accordance with the rule mad,,- in this behalf.
Rules:- The State Government has made the followingrules in exercise of the powers conferred by this section. These Rules shall be found under Rules given separately. .
L_Zila .Panch.a.yatMembers ITraveliing. anfJiJther Allowances),' Rules 1995. . .'
2. 'Janapada Panchayat Members (Travelling and other Allowances), Rules 1995.
3. Gram Panchayats (Travelling Allowance and other Allowances) Rules, 1995.
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(3) No.thing in this sectio.n shall be deemed to. apply to. any suit instituted under Sectio.n 38 o.fthe Specific Relief Act, 1963 (No..47 o.f
1963). ,
109. Certain suits against members officers etc. to be defended at cost of 1[Panchayat or GramSabha].-With the previo.us permissio.n o.fthe Co.llecto.r suit against any o.fficebearer, o.fficer o.r servant o.fa 21Panchayat o.rGram Sabha] arising aut o.fanything dane o.rany actio.n taken by him under this Act o.r the rules o.rbyelaws made thereunder, shall be defended by the 3[Panchayat o.r Gram Sabha] co.ncerned an behalf o.fsuch perso.n and the expenses incurred an such defence shall be paid aut o.fthe funds o.fthe 4[Panchayat o.rGramSabha] co.ncerned.
110. Bar of other proceeding in respect of tax etc.-II) No. o.bjectio.n shall be taken to. any valuatlo.n, assessment o.r levy In any manner ather than the manner pro.vided in this Act and the rules made thereunder.
(2) No.suit far damages o.r far specific perfo.rmance shall be main- tainable against any 5[Panchayat o.rGram Sabha] o.rany o.fficebearer, o.fficero.rservant thereo.f, an the ground that any o.fthe duties specified in this Act have nat been perfo.rmed.
Ill. Members and servants of Panchayat to be public servant.-
Every o.fficebearer o.fPanchayat and every o.fficer o.r servant thereo.f shall be deemed to.be public servant within the meaning o.fSectio.n 21 o.fthe Indian Penal Code, .1860 (XLVo.f1860r . '. -..
112. Vacancy or defect in constitution .of procedure etc. not to invalidate act of Panchayat. -No. act o.fPanchayat shall be invalid merely by reaso.n o.f-
(a) any vacancy in o.rdefect in the co.nstitutlo.n thereo.f; o.r
(b) any defect In the electlo.n, co.-aptian o.rappo.lntment o.fa perso.n acting to.be a o.fficebearer, thereo.f; o.r .
(c) any Irregularity In Its procedure nat effecting the merits o.fthe
case.
113. Acquisition of land.-O) Where any land Is required far the purpo.se o.f this Act and the Panchayat Is unable to. acquire it by agreement, the State Go.vernment may at the request o.fthe Panchayat and an the reco.mmendatio.n' o.f the Co.llecto.rpro.ceed to. acquire It under the provisio.ns o.fLand Acqulsltlo.n Act, 1894 (No..I o.f1894) and an payment by the Panchayat o.f co.mpensatlo.n awarded under that Act. and all ather charges Incurred by the State Go.vernment in co.nnectlo.n with the proceedings, the land shall vest in the Panchayat an who.se acco.unt It has been so.acquired.
(2) The Panchayat shall nat witho.ut the previo.us sanctlo.n o.fthe State Go.vernment transfer any land which has been acquired under. . '. ,. .
(PA1158 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993
8.109
I Subs. by M.P.Act3 of2o.o.l. w.e.f.26-1-2o.o.l.
2 Subs.by M.P.Act3 of 2001, w,e.f.26~1-2001.
3 Subs. by M.P.Act3 of2o.o.l. w.e.f.26-1-2o.o.l.
4 Subs. byM.P.Act3 of 20.0.1.w.e.f.26-1-2o.o.l.
5 Subs. by M.P.Act3 of2o.o.l. w.e.f.26-1-2o.o.l.
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S. 108
PANCHAYATRAJAVAMGRAMSWARAJ ADHI.,1993(PA)157
. ,
. Information shall, on conviction be punished with.a fine which may extend to two hpndred fifty rupees.
105. Prohibition of bidding.-(l) No member or servant of a Panchayat or any officer having any duly to perform In connection with the sale of movable or Immovable property under this Act shall directly or Indirectly bid for or acquire interest in any property sold at such sale.
(2) Any person who contravenes the provisions of sub-section (1) shall on conviction, be punished with fine which m~y extend to two hundred fifty rupees and if he is an officer or servant of a Panchayat, he shall also be liable to be removed from service.
106. Procedure to make good the damage to any Panchayat.-If' through any act, neglect or default on account of which any person shall have incurred any penally imposed by or under this Act and any damage to the properly of any Panchayat have been cause by any such person, he shall be liable to make good such damage. as well as to pay such penally and the value of the damage, shall in case of dispute, be determined by the Magistrate, by whom the person incurring such penalty has been convicted and on non-payment of such value on demand, the; same shall be recoverable as arrears of land revenue.
CHAPTER XIII . MISCELLANEOUS
107. Indemnity for acts done in good faith.-No suit shall be malntalnaljlle' against any lIPanchayat ..OI' Gram. 8abhaJor .anyohts:. 00. ....., committee!or any officebearer, officer or servant thereof or any person acting under the direction of any such 21Panchayat or Gram Sabha),. its committee, officebearer, officer or servant in respect of anything in good faith done or intended to be done under this Act or under any rules or byelaws made thereunder.
COMMENTARY
Applicability.-Bitr of suit, does not apply in a case where there is demand ofbribe by the Panchayat Officers.In such cases such officers act. _ in their personal capacity. Harisingh v. Rameshchand, 1997 (II) MPWN
53.
108. Bar of suit in absence of notice.-(l) No suit shall be instituted against any 31Panchayat or Gram Sabha) or any office bearer. officer or servant thereof or any person acting under the direction of any of the authorities. mentioned in this Act for anything done or purporting to be done under this Act unless a notice under - S
~'- (2)' Every such suit shall be dismissed unless it is Instituted within six months from the date of the accrual of the alleged cause of action. l' Subs. by M.P.Act 3 of 2001. w.e,L26-1-20Pl.
2 Subs. by M.P.Act 3 of2Q01, w.e.f.26-1-2001.
3 Subs. by M.P.Act 30[2001, w.e.f.26-1-Z001.
208
under Section 168 of the Indian Penal Code, 1868 (XLVof 1868). COMl\jENTARY
Bar-Interpretation.-Thewrit petition contending that on the date of the grant of fishing right iri"favour of the 5th respondent- society, its President, namely Punit Ram was a Panch of said Janpad Panchayat and therefore the bar enacted in S,100 was attracted. Held, that Section 100 of the Adhiniyam provides that if a member or office bearer or servant of Panchayat knowingly acquires .directly or indirectly anypersonal share or interest (emphasis supplied) ili any contract. or employment with, by or on behalf ofa Panchayat without th~ sanction ofor permission ofthe prescribed authority, he shall be deemed to have committed an offenceunder S. 168 of the Indian Penal Code, 1MB. What is prohibited under S.100 of the Ad- hiniyam is that a member or office bearer or servant of the Janpad Panchayat under any contract or arrangement is not entitled to acquire either directly or indirectly any interest or right. It is nobody's case that under any contract between the 3rd Respondent Janpad Panchayat and Punit Ram, the then President ofthe 5th Respondent -Cooperative Society, he had acquired any personal share or interest and, therefore, he is liable to be punished as envisaged under S.lOO of the Adhiniyam. A Co-Operative Society registered under the M.P.lC.G. CO;Op. Societies Act, 1960 has a distinct and separate legal entity than the per- sonality of the members constituting it. The bar contained in S..100-ofthe _ Adhiniyam c"iila not beappiiedto the fads -ofthi. case. sini. Jaitrinbai Dheamar v. State ofC.G., 2006(2) CGLJ 44.
101. Wrongful restraint of officers etc.-Any person who prevents any officer or servant of a Panchayat or any person to whom such officer or servant has, lawfully delegated his powers of enteIing on or into and any place building or land from exercising hIs lawful powers of enteIing thereon or therein, shall be deemed to have committed an offence under Section 341 of the Indian Penal Code, 1868 (No.XLVof1868).
102. Prohibit against obstrnction of member of Panchayats.- Any person obstructing any member, office bearer or servant 'If a Panchayat or any person with whom a contract has been entered Into by or on behalf of a Panchayat in the discharge of his duties or anything shall on conviction be punished with a fine which shall. extend to two hundred fifty rupees.
103. Prohibit against.remova.LQf obliteration notice.-Any per- son who without authoIity in that behalf rlimoves. destroys, defaces or otherwise obliterates any notice exhibited or any sign or mark erected by. or under the order of a Panchayat of any of Its officer shall on conviction be punished with a fine which may extend to fifty rupees.
104. Penaity for not giving information or giving faise informa- tion.-Any person required by this Act or the rules rna e thereunder or notice or other proceedings Issued thereunder to furnish any informa- tion omits to furnish such Information or knowingly furnishing wrong s: 101
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(PA)156 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993
209
•
S.100
•
PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)155
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1
i
"Bye-laws Rules, 1994."
97. Model byelaws.-(l) The State Government may from time to time make model byelaws for the guidance qf 1[Panchayat or Gram Sabha]. .'
(2)The State Government may direct 2[Panchayat or Gram Sabha) to adopt a model byelaw after modifying the same to suit the local conditions.
(3) .If the 3[Panchayat or Gram Sabha) fails to comply with' a direction under sub-section. (2) within six month~ the State Govern- ment may apply'to such 4[Panchayat or Gram Sabha] such model byelaws.
(4)The provisions of sub-section (4)of Section 96 shall apply to the adoptions or application of byelaws under this section. CHAPTER XII - PENALTY
98. Penalty for acting as panch. Member, Sarpanch. Up-Sar- panch. President. Vice-President when disqualified.-(l) Whosoever acts as a panch or member of Panchayat knowing that he is not entitled or has ceased to be entitled to hold office as such, shall on conviction be punished with.a finewhich may extend to fifty rupees for every day on which he sits or votes ,,:ssuch panch or member. (2)Whoever acts as sarpanch or Up-Sarpanch, President or Vice- .President, knowing that heisnoferithled- orhas"".eased {obeenttHea;' to hold office as such shall, on conviction, be punished with a fine which may extend to one hundred rupees for every day on which he acts or functions as such.
5[(3) Any person whose term of office has expired or who has tendered resignation or against whom a no confidence motion has been passed or who has been removed from an office of the panchayat fails to hand over forthwith any record, article or money or other properties vested in or belonging to the Panchayat which are in his possession or control to his successor in office shall-on conviction be-. punished with a fine which may extend to rupees two thousand.) .
99. Penalties for interested Membersvoting.-Whosoever. having interest in any matter under consideration of a Panchayat votes in that matter shall, on conviction, be punished with a fine which may extend to two hundred fifty rupees.
100. Penalty for acquisition by a member. office-bearer or servant of interest in contract. -If a member or office bearer or 'servant of Panchayat knowingly acquires, directly or indirectly any .. personal.share .orinterest in_any..contr.act <;>remployment with.-by or on behalf of a Panchayat without the sanction of or pennission of the ,,"pr;;~!'rib,ec!.a].!tl:l.Orlty.he 'Zhallbe deemedJo have.committed an.offence
1 Subs. by M.P.Act 3 of2001, w.e.f.26-1-2001.
2 Subs. by M,P.Act 3 of 2001. w.e.f.26-1-2001.
3 Subs.byM.P.Act 3'of2001.w.e.f.26-1-2001.
4 Subs.byM.P.Act 3 of2001.w.e.f.26-1-2001.
5 Subs.byM.P. 26of1994(30.5.941.
I
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r
210
CO MM E_NTA RY --' - . - - .
8.95 (PA)154 PANCHAYATRAJAVAMGRAMSWARAJ ADHI.,1993
MPLJ391.
Rules:- The State Government has made the followingrules in exercise of the powers conferred by this section. These Rules shall be found under Rules given separately. ~.
1. "Panchayats (Correspondence) Rules, 1995"-
2. "Zila Panchayat (Business) Rules, 1998"
. 3. "Gram Panchayat (Registration of Coloniser Terms and Conditions) Rules, 1999".
4. "Panchayat (Purchase of Material and Goods) Rules, 1999"
96. Byelaws.e(l) K1[Parichayat orG'ram Sabha] may makebyelaws consistent with this Act and rules made thereunder.
(2) In making byelaws under sub-section (I) the 2[Panchayat or Gram SabhaJ may direct that a breach thereof shall be punishable with a fine which may extend to two hundred fifty rupees and in the case of the continuing breach with a further fine which may extend to five rupees for every day durtng which the breach continues after the first conviction.
(3) A byelaw shall not come into force until it has been confirmed by the prescribed authortty.
(4)The manner ofmaking byelaws and their approval shall be such as may be prescrtbed.
Rules:- The State Government has made the followingrules in exercise of the powers conferred by this section. These Rules'shall be found under Rules given separately.
CHAPTER XI. RULES AND BYELAWS
95. Power to make rules.-(l) The State Government may make rules for carrying out the purposes of this Act.
(2) In particular and without prejudice to the generality of the foregoing powers, such rules may provide for all or any of the matters which under any provision of this Act, are required to be prescribed or to be provided for by rules.
(3) All rules shall be subject to the condition of previous publica-
tion.
(4) All rules shall be laid on the table of Legislative Assembly.
(5) In making any rule, thlo State Government may direct that a breach thereof shall be punishable with fine which may extend to two hundred fifty rupees and In the case of continuing breach with a further fine which may extend to five rupees for every day durtng which the breach continues after the first conviction.
1 Subs. by M.P.Act 3 of 2001. w.e.f.26-1-2001.
2 Subs.byM.P.Act 3 012001.w.e.I.26-1-2001.
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211
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8.94 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)153
f
J
disqualified and no action as contemplated under S.92(l) was taken against him. Gendalal v. State of M.P., 2006(3) MPLJ 360 =2006(2) MPHT 38.
3. Difference of proceedings under 5s. 92 and 40.-Proceedings under section 92 are quite different than that of section 40. No action of removal of a Sarpanch of the Gram Panchayat can be taken by the prescribed authority In the proceedings initiated under section 92. Maya Choudhary v. Stat~ of M.P., 2012(2) MPW 90 = 2012(5) MPHT
240.
4. Rules:- The State G6venfinent 'has made the followingrules in exer- cise ofthe powers confer..,d by this section.
"Panchayat (Recovery of Records, Articles and Money) Rules, 1995"
93. Delegation of powers.-{l) The State Government, may by notification, delegate to or confer on any officer subordinate to it or to any Panchayat all or any of the powers conferred upon it by or under this Act, except the powers relating to framing of rules.
(2) The powers delegated under sub-section (1) shall be exercised in accordance with the general or special order issued by the Slate Govemment in this behalf.
(3) The State Government may by notification prescribe various authorities .underthis Act. "0 •• _ • __ ._ - - - -. - . - --- - '. - . -. -,"
94. General power of control-In all matters connected with this Act or the rules made thereunder all officers empowered to act by or under this Act shall be subject to the same control by the same authority under whose administrative control they normally perform the functions of their office.
COMMENTARY
1. Natural justice.-Appointment of Shiksha Karmis Grade-III. The selectlist l'repared by the Committee was' objected to and the Collector exercising his jurisdiction under Rule 5 ofthe Rules of 1995, cancelled the appointments and ordered for preparation new revised select list. He gave noopportunity ofhearing to the candidates selected but omitted. Earlier list was prepared in violation ofprescribed rules and norms. Order of selection Committee not appealable. Colleclor had jurisdiction to revise list but opportunity ofhearing ought to have been given to the affected candidates. Arti Bhatnagar v. State of M.P., 2000 (2) MP~ 151 (DB).
2. Hearing of election petition in case of Janpad Panchayat. Jurisdiction of Additional ColIector.-lJndtr this ~ection an .election jietiti(niin-case'ofJanpadPancfiayatls "tobepresent~«(beforethe Collector. In view of section 17(2) of the M.P,Land Revenue Code, an Additional Collector can hot only exercise such powers and discillirge such duties conferred on the CollectorbY'orunder the Code,but he can also exercise the power of the Collectorunder any other enactment, in case, Collector of the District by his Order in writing'directs him to do so. Therefore, the Addi- tional Collector has jurisdiction to hear the election petition in case it is transferred to him. Rajkumar Shiv hare v. Anand Kumar Tiwari, 2000 (3) -... --.........
212
1. Disqualified person.- A person against whom an action is taken under section 92 shall be disqualified to be a member of any Panchayat for a period of six years and his nomination paper cannot be accepted. Uttam Singh v. Bharatlal Yadav, 2002 (2) MPLJ' 483. .
2. Not Disqualified.-On receipt of notice under Sub-Section (4) of excess expenditure, petitionerSarpanch imlnediately deposited the excess amount and proceedings against him were dropped therefore he' is not authorise<;'ly in his custody any record or article or money belonging to the Panchayat I[or Gram Nirman Samiti and Gram Vikas Samiti] 2[or committee of Gram Sabha], he may, by a written order, require that the record of article or money be delivered or paid forthwith to the Panchayat 3[or Gram Nirman Samiti and Gram Vikas Samiti] 4[or committee of Gram Sabha]' in the presence of such officer as may be appointed by the prescribed authority in this behalf.
(2) If any person fails or refuses to deiiver the record or article or pay the money as directed under sub-section (1) the prescribed authority may cause him to be apprehended and may send him with a warrant in such form as may be prescribed, to be confined in a Civil Jail for a period not longer than thirty days.
(3) The prescribed authority may-
(a) for recovering any such money direct lhal such money be recovered as an arrear of land revenue; and
(b) for recovering any such record or articles issue a search warrant and exercise all such powers ",ilh respect thereto as may lawfully be exercised by a 1\l.tgislrate under the provisions of Chapter VIIof the code' Ii Crimimtl Procedure, 1973 (No.2 of 1974).
, (4) No actIon unders\lP-sectio_n(lJ.or(2) or (3) ,shall bet!\!
5[(4_A)The case pertaIning to recovery of any record or article or money initiated by the prescribed authority shall be disposed ofwithin six months from the date of initiation.]
(5) A person against whom an action is taken under this section shall be disqualified to be member of any Panchayat 6[orGram Nirman Samiti and Gram Vikas Samiti] 7[or committee of Gram Sabha] for a" 8 ' , '" , . ".. ... --"
period of [six]years commencing from the initiation of such action.
COMMENTARY
8.92
Ins. by M.P. Act 16 of 2004, w.e.f. 1-1-2005. Ins. by M.P. Act 18 of 2007 w.e.f. 25-5- 2007. Ins. by M.P. Act 16 of 2004, w.e.f. 1-1-2005. Ins. by M.P. Act 18 of 2007 w.e.f. 25-5-2007. Ins. by M.P. Act No. 260[2012(23-5-20121. Ip.s. by M.P. Act 16 of 2004, w.eJ. 1-1-2005. I"-s. by MP Act 18 of 2007 w.e.f. 25-5-2007. Subs. by M.P. 26 of 1994 [30.5.94] for the word "five".
(PA)152 PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993
I
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8.92
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PANCHAYAT RAJ AVAM GRAM SWARAJ ADHI., 1993 (PA)151
,
2009(1) MPWN 24 = 2008(5) MPHT 421. [8]Appointment order of Panchayat Karmi issued by the Sarpanch of Gram Panchayat is appealable and", Revision under the Rules did not lie at all. RajkumariRai v. State of M.P., 2009(1) MPW 203 =2009(1) MPWN
107.
See also: Abdul Hussain Qureshi v. State of M.P., 2008 (4) MPW 546 = 2009(1) JW 320 = 2009(1) MPHT 322.
[9] Appointment made by the Janpad Panchayat is amenable to the appellate jurisdiction of the Collector under Section 3 and the order of the Collector is further subject to revision before the Commissioner under Rule
5. Shyama Dwivedi v. State of M.P., 2009 (1) MPLJ 456.
[10] No appeal or revision lies against the proceedings of Gram Panchayat. Ramlakahn Rawat v. State of M.P., 2000 (2) MPW 176=2000
(1) JLJ 280.
[11]Rules framed under section 91 ofthe Act donot provide any remedy of appeal or revision against the proceedings of the Panchayat. Under the Rule_s_anyorder passed by Gram Panchayat in pursuance of the resolution /-i-s' appealable and no revision is maintainable against the proceedings of Panchayat. 1999(2)MPLJ 62=1999 (1) JW 146 FoIl.Ramlakahn Rawat v. State of M.P., 2000 (2) MPW 176=2000 (1) JW 280.
[12JThe Legislature has not empowered the authorities to cancel or set _--as.ide-anyresolution qf:Panchayat in-:appeaL or re'lision.;Hovyever;" any order , passed by the Authority under sub-section (2)of section 85 ofthe Act which is subordinate to the Officers mentioned in Rule 3 of the M.P.Panchayats (Appeal and Revision) Rules, the order shall be appealable and thereafter revision shall lie against the appellate order. Ramlakahn Rawat v. Sta!e of M.P., 2000 (2) MPW 176=2000 (1) JW 280.
[13] From the scheme of the Act, it is apparent that any resolution passed by Panchayat is neither appealable nor revisable. Resolutions of Panchayats cannot be set aside. However, orders passed by Panchayats shall beappealable under RulB3.9fthe "foJesai,1 r\l!es andafter orderin appeal, it shall be revisable under Rule 5 of the Rules. Ramlakahn Rawat
v. State of M.P., 2000 (2) MPW 176=2000 (1) JW 280. [14]Where a motion of no confidence is passed or failed, no appeal or revision lies against-it, since it is neither an order nor any proceeding in any pending case. 1998(2)JLJ 267Relied on.Ramnath Kaushik v. State of M.P.,
1999 (1) JW 146.
5. Jurisdiction of S.D.O.- Removal of panchayat Karmi cannot be ordered by S.D.O. Satendra Singh v. S.D.a. Lahar, 1998 (I) MPWN 44. _6•.Rules.- TheState Govemment has made the followingr-ules in exer- cise ofthe powers conferred by this section. These rules shall be found under Rules .givenseparately.
''Appeal and Revision Rules, 1995"
92. Power to recover records articles and money.-(l) Where the prescribed authority is of the opinion that any person has un-
214
