ORDER
Abhay M. Naik, J.
1. This order disposes of Writ Petition No. 19078/2006 and Writ Petition No. 18174/2006. Reference has been taken from W.P. No. 18174/2006.
2. Petitioner was elected Sarpanch of Gram Panchayat Pondi Khurd, District Katni. The said Gram Panchayat was constituted by 15 Panchas, A no confidence motion was submitted against the petitioner which came up for voting on 15-9-2006. 11 Panchas voted in favour of no confidence motion whereas 3 Panchas voted against it. One vote was declared invalid. Since, the no confidence motion was not passed by 3/4th of the Panchas present in voting, the same was rejected vide Anriexure P-1, dated 15-9-2006. An appeal was preferred against it by respondent No. 3 who was merely a Panch. It has been allowed vide the impugned order Annexure P-3, dated 24-11-2006. The learned Collector, Katni observed that the intention of the voter ought to have been ascertained and the same being ascertainable, the vote held to be invalid by the Presiding Officer could not have been rejected on technicality. The said vote was treated as valid in favour of no confidence motion and accordingly, it was held that the no confidence motion was passed by 12 votes.
3. Aforesaid order marked as Annexure P-3 is under challenge in the writ petition on the ground that the appeal before the Collector, Katni on behalf of one of the Panchas was not maintainable. It is contended that Sub-section (4) of Section 21 of M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 enables merely a Sarpanch or Up-Sarpanch to challenge the validity of the no confidence motion by filing a dispute before the Collector. Respondent No. 3 was not Sarpanch or Up-Sarpanch and had no locus standi to prefer a dispute envisaged under Sub-section (4). Accordingly, it is contended that the impugned order contained in Annexure P-3 having been passed in an untenable appeal, is not sustainable in law.
4. Another connected writ petition bearing W.P. No. 19078/2006 has been preferred by Up-Sarpanch of Gram Panchayat Pondi Khurd challenging thereby Annexure P-1, dated 15-9-2006.
5. A serious defence has been raised by Shri A.P. Singh, learned Counsel that an alternative remedy of preferring a dispute before the Collector is available to the Up-Sarpanch namely Smt. Sunita Patel and her petition is not maintainable. Section 21(4) is reproduced below for convenience:
If the Sarpanch or the Up-sarpanch, as the case may be desires to challenge the validity of the motion carried out under Sub-section (1), he shall, within seven days from the date on which such motion was carried, refer the dispute to the Collector who shall decide it, as far as possible, within thirty days from the date on which it was received by him, and his decision shall be final.
6. The words, “as the case may be” are quite significant and are obviously relatable to the preceding Sub-sections of Section 21. Sub-section (1) provides for passing of no confidence motion by the Gram Panchayat against the Sarpanch or Up-Sarpanch. Sub-section (2) provides for convening the meeting for no confidence motion. Sub-section (3) is meant for avoiding repeated no confidence motions within the stipulated period. Thereafter, Sub-section (4) enables a Sarpanch or Upsarpanch who is desirous of challenging the validity of motion carried out under Sub-section (1) to prefer a dispute to the Collector within the time prescribed thereunder. This being so, it is the Sarpanch or Upsarpanch alone against whom a no confidence motion is passed, is competent to prefer a dispute before the. Collector. Since, no confidence motion was not passed against Smt. Sunita Patel (petitioner in W.P. No. 19078/06) she was not competent to refer the dispute to the Collector, Katni. Secondly, it is only when a no confidence motion is carried out that a dispute may be referred to Collector. The words “motion carried out under Sub-section (1)” occurring in Sub-section (4) of Section 21 of the M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 would mean that when a no confidence motion is successfully passed. No other meaning could be assigned to this expression because if a no confidence motion fails Sarpanch or Upsarpanch as the case may be would not be the person aggrieved at all. Considering this, no dispute against the failure of no confidence motion could have been raised by Smt. Sunita Patel under Sub-section (4) and, accordingly, I hold the writ petition to be well maintainable.
7. I may further deal with the tenability of appeal before the Collector which was preferred by respondent No. 3. As stated hereinabove, it would be the Sarpanch or Upsarpanch alone against whom no confidence motion is passed who may prefer a dispute before the Collector under Sub-section (4) of Section 21. Thus, the appeal 13/Appeal/A-89/06-07 at the instance of respondent No. 3 was not tenable at all and the impugned order contained in Annexure P-3 is not sustainable in law. However, in view of the common controversy involved in both the writ petitions, this Court is required to decide whether the no confidence motion vide Annexure P-1 was validly rejected. Rule 5 of M.P. Panchayat (Gram Panchayat Ke Sarpanch Tatha Up-Sarpanch, Janpad Panchayat Tatha Zila Panchayat Ke President Tatha Vice-President Ke Virudh Avishwas Prastav) Niyam, 1994 (hereinafter referred to as ‘Avishwas Prastav Niyam, 1994’) makes a provision for meeting of no confidence motion which is as follows:
5. Conduct of meeting.–(1) The Presiding Officer shall record the attendance of the members of the Panchayat present at the meeting.
(2) Omitted by Notification dated 23-12-1995.
(3) The Presiding Officer shall ask any of the signatories to the notice to move the motion.
(4) After the motion is moved the mover shall first speak on the motion and thereafter other members may, if they so desire, speak on the motion.
(5) On the conclusion of the debate on the motion, the Presiding Officer shall call the members present in the meeting one by one and shall give them ballot paper duly signed by him to indicate its authenticity, to cast his vote for or against the motion. The member who wants to vote in favour of the motion shall affix the symbol (√) and the member who wants to vote against the motion shall affix the symbol (x). After the member has recorded his vote, he shall fold the ballot paper to maintain secrecy and put it in the ballot box kept on the table for the Presiding Officer.
(6) After the voting is over, the Presiding Officer shall take out the ballot papers from the ballot box and sort out the votes for and against the motion. If the number of votes in favour of the motion fulfills the requirement of Sub-section (1) of Section 21, Sub-section (1) of Section 28, or Sub-section (1) of Section 35, as the case may be, the Presiding Officer shall declare that the motion of no confidence is passed.
8. Sub-rule (5) prescribes the manner in which the vote has to be cast for or against the no confidence motion. The member who wants to vote in favour of the motion shall affix the symbol (√) and the member who wants to vote against the motion is required to affix the symbol (x).
9. Shri A.P. Singh, learned Counsel for the petitioner drew attention of this Court to clauses (a) to (h) of Rule 76 of M.P. Panchayat Nirvachan Niyam, 1995 and contended that the ballot paper containing any kind of mark on the back side makes the voter identifiable and the vote cast by him is therefore liable to be rejected under Clause (a). It has been further contended that the mark ( ) has been put by the voter on the back side of the ballot paper which is contrary to the manner prescribed for voting. Thus, he contended that the ballot paper has been rightly rejected by the Presiding Officer in view of Clause (a) and (h).
10. Shri V.K. Shukla, learned Counsel countered the submissions by contending that M.P. Panchayat Nirvachan Niyam, 1995 has no application because the same is meant for general panchayat elections. He further contended that for the purpose of no confidence motion Avishwas Prastav Niyam, 1994 has been made and would alone govern the situation. This submission is not impressive at all. Nirvachan Niyam, 1995 are quite exhaustive and they would also cover the meetings of no confidence with regard to various things for which no provision has been made in the Avishwas Prastav Niyam, 1994. Illustratively, Chapter X of M.P. Panchayat Nirvachan Niyam, 1995 provides for counting of votes. Votes exercised in the meeting of no confidence are also liable to be counted wherefor there is no specific provision in Avishwas Prastav Niyam, 1994 and although counting is required to be made even in the meeting for no confidence. Thus, it cannot be said that M.P. Panchayat Nirvachan Niyam, 1995 will not apply to the meeting of no confidence motion with regard to the procedure which is liable to be observed in such meetings.
11. Shri Jaideep Singh, Govt. Advocate has made available the original ballot papers of the no confidence motion in a sealed envelope in the open Court. It was the hand written ballot papers. One horizontal column was made for no confidence motion whereas another for members against such motion. Front columns of the entire ballot paper were blank. On the back side there were no columns. Mark of (√) was also not put even on the back side Mark ( ) is found to have been put on the back side which was also counter signed by the Presiding Officer. Thus, admittedly the symbol (√) is not found to have been affixed on the front side of the ballot paper as required under Sub-rule (6) of Rule 5 of Avishwas Prastav Niyam, 1994, Moreover, any such mark put on the back side of the ballot paper in contravention of Sub-rule (5) would obviously disclose the identity of the voter which is not permissible under Clause (a) of Rule 76 of M.P. Panchayat Nirvachan Niyam, 1995. The Apex Court in the case of Shri Satyanarain Dudhani v. Uday Kumar Singh and Ors. has clearly observed:
The secrecy of the ballot papers cannot be permitted to be tinkered lightly.
12. The Collector, Katni in the impugned order has upheld the no confidence motion on the ground that number of Panchas are illiterate and it is not expected from them that they will put the symbols at correct places. He has further observed that the intention of the voter is to be determined and the ballot paper is not liable to be rejected on technical grounds.
13. Shri V.K. Shukla, learned Counsel relying upon this Court’s decision in the case of Smt. Sharda BaiKhatik v. Stale of M.P. and Ors. 1998 (1) MPJR 45 contended that the intention of the voter with regard to exercise of his vote in the no confidence motion is quite ascertainable and the same could not have been legally rejected. In the case of Sharda Bai Khatik (supra), this Court after going through the said ballot papers observed that:
By no stretch of imagination, symbol put in 3 of the aforesaid ballot papers can be said to be cross and if one looks into the symbol on the 3 ballot papers, which are the subject matter of controversy, from one angle, there is no doubt that it indicates the symbol (). One has to bear in mind that practice of symbol is invoked, considering the over all illiteracy in the country, i.e., symbol is prescribed to convey the intention of the voter.
14. In the present case, it may be seen that the horizontal columns are made on the front side alone of the ballot papers. Its back side is completely blank. So, any mark put on the back side will not convey any intention in specific of the voter. Moreover, a symbol is put on the ballot paper in a reverse manner of (√), i.e., ( ). This being so, the decision in the case of Smt. Sharda Bai Khatik provides no assistance to the petitioner in W.P. No. 19078/2006.
15. I may profitably refer to the observations of Hon’ble Supreme Court of India in the case of Era Sezhiyan v. T.R. Balu and Ors. ). I conveniently reproduce Paragraph 13 :
It would not be convenient to deal with the first contention of the learned Counsel for the appellant. As we have already pointed out, the said rejected ballot paper was rejected on the ground that it was marked otherwise than with an article supplied for the purpose. As we have already pointed out, the figure I indicating the first preference in the said ballot paper was marked in green ink whereas in the ball-point pen kept in the voting booth with the ballot box, the ink used was blue. The Returning Officer took the view that the said marking of preference in green ink clearly established that it was done with a ball-point pen other than the one which was supplied for marking the preference and hence the vote was invalid. It was urged by Shri Jethmalani in this connection that although the marking of preference was done in green ink, there was no doubt that the intention of the voter concerned was to give the first preference vote to the appellant. It was submitted by him that the fundamental rule of election law is that effect should be given to the intention of the voter and this could be done only by treating the vote as valid, as the intention of the voter was quite clear. Mr. Jethmalani may be right when he contends that the intention of the voter could be clearly gathered and it was to cast the first preference vote for the appellant. However, it is not enough for the vote to be valid that it is possible to gather the intention of the voter to vote for a particular candidate as pointed out by the Constitution Bench of this Court in the leading case of Hari Vishnu Kamath v. Syed Ahmad Ishaque . This Court held that (1132) (at SCR) : (at p. 248 AIR):
But when the law prescribes that the intention should be expressed in a particular manner, it can be taken into account only if it is so expressed. An intention not duly expressed is, in a Court of law, in the same position as an intention not expressed at all.
16. From the law enunciated by the Apex Court it is clear that the expression of intention must be in a manner which is provided under law. Rule 5 of Avishwas Prastav Niyam, 1994 makes it clear that a voter is required to cast his vote in favour of no confidence motion by putting the symbol (√) and against it by putting a symbol (x). In the disputed ballot paper no such mark is made by the petitioner in the horizontal columns showing his intention for or against the no confidence motion. On the back side there are no horizontal columns and the same is kept totally blank. A reverse mark of (√) does not convey any specific intention of the voter and the same cannot be treated as an expression of intention within the meaning of election laws.
17. Shri V.K. Shukla, learned Counsel for the petitioner in W.P. No. 19078/2006 feebly contended that since the subject ballot paper was also counter signed by the Presiding Officer that should be treated as valid. This preposition is highly misconceived because the signature of Presiding Officer on ballot paper merely establishes the authenticity of a ballot paper as well as the exercise of right of vote. Nothing more is conveyed by the signature of the Presiding Officer.
18. No other point is pressed.
19. In the result, I hold that the no confidence motion contained in Annexure P-1 was not validly passed for want of requisite strength, i.e., 3/4th and the order contained in Annexure P-l does not suffer from any kind of infirmity. Accordingly, W.P. No. 18174/2006 succeeds and W.P. No. 19078/2006 fails. Order contained in Annexure P-3 is hereby quashed.
No order as to costs.