P.R. Ramachandra Menon, CJ
1. ""Whether the decision passed under sub-section (4) of Section 21 of the Act (Chhattisgarh Panchayat Raj Adhiniyam, 1993) would be revisable as
per the Chhattisgarh Panchayat (Appeal and Revision) Rules, 1995 (for short 'the Rules, 1995'), though sub section (4) of Section 21 was inserted in
the year 1997 which gives the finality to such order"" - is the question referred for consideration and it stands listed accordingly before the Full Bench,
based on the orders passed on the administrative side.
2. The Petitioner, who was 'Sarpanch' of the Gram Panchayat, Birajpali, Tahsil Bagbahra, District Mahasamund and failed in the no- confidence
motion held on 18.02.2019 pursuant to a notice dated 11.02.2019 issued by the Prescribed Authority i.e. the 3 rd Respondent, sought to challenge the
validity of the motion by filing a representation in terms of sub- section (4) of Section 21 of the Act, 1993 before the 2 nd Respondent. After
considering the contentions raised, the said representation was rejected as per Annexure P/1 order dated 30.05.2019, which is put to challenge in the
writ petition.
3. When the matter came up for consideration before the learned single Judge, it was contended on behalf of the Petitioner that there was no other
alternate remedy for the Petitioner but to approach this Court, invoking the jurisdiction under Article 226 of the Constitution. It was also stated that
Annexure P/1 order passed by the Collector under Section 21(4) of the Act, 1993 was 'final' in all respects, by virtue of the specific stipulation therein
and that the said provision having been introduced in the statute pursuant to the amendment in the year 1997 as per Act of MP 2 of 1997, the remedy
by way of Appeal or Revision under Section 91 of the Act, 1993, read with Section 5 of the Rules, 1995, was not to have any effect or application.
Reliance was also sought to be placed on the verdict passed by a learned Single Judge of the Madhya Pradesh High Court Sukhnandan Patel v. State
of Madhya Pradesh {2003 (2) JLJ 74}.
4. The above contention was sought to be rebutted from the part of the State, contending that there was an effective alternate remedy by way of
'Revision' in terms of the relevant provisions of the Act/Rules as above and the right of Revision does not stand defeated or obliterated because of the
amendment as per MP Act 2 of 1997 as to the 'finality' mentioned under Section 21(4) of the Act, 1993, which could only be in respect of an 'Appeal',
and nothing else. Reliance was placed on the verdict passed by another learned Judge of the Madhya Pradesh High Court Sadan Kumar v. State of
Madhya Pradesh & Others {2003 (2) JLJ 54 : 2002 (2) MPHT 257}. The learned Single Judge took note of the rival contentions and held that, as per
the terminology used in sub-section (4) of Section 21 of the Act, 1993, the order passed thereunder shall be final, but according to Rule 5 of the Rules,
1995, the order passed by the Collector would be revisable. Since the word 'final' has been used in Section 21(4) of the Act, 1993, which was
introduced during existence of Rule 5 of the Rules, 1995, the learned Judge was of the view that the order passed under Section 21(4) of the Act,
1993 had attained finality in view of the meaning of the term 'final' as explained in the ruling rendered by the Apex Court in Commissioner of Sales
Tax UP, Lucknow v. M/s. Super Cotton Bowl Refilling Works {(1989) 1 SCC 643 (paragraph 9)}. It was accordingly, that the question framed as
above was referred, simultaneously holding that the learned Judge was inclined to entertain the writ petition and granted an interim stay of Annexure
P/1 order.
5. Heard Shri Sarfaraj Khan, the learned counsel for the Petitioner and Shri Satish Chandra Verma, learned Advocate General appearing on behalf of
Respondent-State, at length.
6. To have an effective appreciation and analysis on the subject matter, it will be better to have a survey of the relevant provisions in the Act and the
Rules. Section 21(4) of the Act, 1993 dealing with 'no confidence motion' against Sarpanch and Up-Sarpanch reads as under:
21. No confidence motion against Sarpanch and Up-Saranch. - (1) On a motion of no-confidence being passed by the Gram Panchayat by a
resolution passed by majority of not less than three fourth of the panchas present and voting and such majority is more than two third of the total
number of Panchas constituting the Gram Panchayat for the time being, the Sarpanch or Up-Sarpanch against whom such motion is passed, shall
cease to hold office forthwith.
(2) Notwithstanding anything contained int his Act or the rules made thereunder a Sarpanch or an Up- Sarpanch shall not preside over a meeting in
which a motion of no-confidence is discussed against him. Such meeting shall be convened in such manner as may be prescribed and shall be presided
over by an officer of the Government as the Prescribed Authority 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 proceedings of the meeting.
(3) No-confidence motion shall not lie against the Sarpanch or Up-Sarpanch within a period of -
(i) one year from the date on which the Sarpanch or Up-Sarpanch enter their respective office;
(ii) six months preceding the date on which the term of office of the Sarpanch or Up-Sarpanch, as the case may be, expires;
(iii) one year from the date on which previous motion of no-confidence motion was rejected.
(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.
7. As mentioned already, sub-section (4) was not in existence earlier, which was inserted only by virtue of amendment as per the MP Act 2 of 1997,
w.e.f. 07.01.1997. The right of remedy against the orders or proceedings of a Panchayat and other authorities under the Act, 1993 (to such authority
as prescribed) is provided under Section 91 of the Act, 1993. Section 95 of the Act deals with the power of the State to make rules for carrying out
the purposes of the Act. In exercise of the powers under Section 95, read with Section 91, the State Government has formulated the relevant
Rules,1995. Appeal and appellate authority are mentioned in Rule 3 of the said Rules, whereas, Rule 5 deals with the remedy by way of 'Revision'.
Obviously, the scope and powers under the above two provisions are entirely different, and hence, the said provisions are extracted for easy
reference:
3. Appeal and appellate authorities. - Save where it has been other wise provided in the Act or rules or bye-laws made thereunder, an appeal shall lie
-
(a) in the case of an order passed by the Sub Divisional Officer under any provision of the Act or rules or bye laws made thereunder - to the
Collector.
(b) in the case of an order passed by the Collector under any provision of the Act or rules or bye laws made thereunder - to the Director of
Panchayat.
(c) in the case of an order passed by the Director of Panchayats - to the State Government.
(d) in the case of an order passed by the Panchayat specified in column (1) of the Table below - to the authority specified in the corresponding entry
in column (2) thereto.
Table
(1) (2)
(a) Gram Panchayat Sub Divisional Officer
(b) Janpad Panchayat Collector
(c) Zila Panchayat Director of Panchayat
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5. Revision. - (1) (a) The State Government, the Director of Panchayat, the Collector may on its/his own motion or on the application by any party, at
any time for the purpose of satisfying itself/himself as to the legality or propriety of any order passed by or as to the regularity of the proceeding of,
the authority subordinate to it/him call for and examine the record of any case pending before, or disposed of by, such authority and may pass such
order in reference thereto as it/he thinks fit:
Provided that it/he shall not vary or reverse any order unless notice has been served on the parties interested and opportunity given to them for being
heard:
Provided further that no application for revision shall be entertained against an order appellable under the Act.
(b) An application for revision by any party shall only be entertained if it is on the point of law and not on facts.
(2) Notwithstanding anything contained in sub- rule (1),-
(i) Where proceedings in respect of any case have been commenced by the State Government under sub-rule (1) no action shall be taken by other
Officer mentioned in the said sub-rule in respect thereof, and
(ii) Where proceedings in respect of any such case have been commenced by the Officer mentioned in sub-rule (1), the State Government may either
refrain from taking any action under this Rule in respect of such case until the final disposal of such proceeding by such officer or may withdraw such
proceeding and pass such order as it may deem fit.
8. Going by Rule 3(b) of the Rules1995, it is evident that an appeal shall lie in the case of an order passed by the Collector under any provision of the
Act or Rules or Bye laws made thereunder, to the Director of Panchayats. But then, the question is whether it is an absolute right; answer to which is
discernible from the opening words of Rule 3 and the clear stipulation under sub-section (4) of Section 21. Rule 3 of the Rules starts with the words
'save where it has been other wise provided in the Act or rules or Bye-laws made thereunder"". This clearly means that the right of appeal mentioned
therein is subject to other specific provisions, if any, as contained in the Act/Rules/Bye-laws. Now, coming back to sub-section (4) of Section 21, it
clearly says that the Sarpanch or the Upsarpanch who desires to challenge the validity of the no-confidence motion will be having the right to 'refer'
the dispute to the Collector within seven days from the date on which the motion was carried and the decision of the Collector on the 'reference' of
the dispute shall be ""final"". This means, the right of Appeal conferred under Section 91 of the Act, 1993, read with Rule 3 of the Rules 1995 stands
prohibited, insofar as it is an order passed by the Collector on a reference of the dispute as to the no-confidence motion under Section 21(4) of the
Act, 1993. As it stands so, there is no difficulty in arriving at a finding that no Appeal lies against Annexure P/1 order, it having been passed under
sub- section (4) of Section 21 of the Act, 1993.
9. Coming to the power of Revision, Rule 5 of the Rules 1995 clearly mentions that the revisional authority, either on its own motion or on the
application by any party at any time, can call for and examine the record of any case pending before or disposed of by any authority subordinate to it,
for the purpose of satisfying itself as to the legality or propriety of any order passed by or as to the regularity of the proceedings as aforesaid and can
pass appropriate orders as it thinks fit; subject to the condition that the revisional authority shall not vary or reverse any order unless notice has been
issued to the parties interested and opportunity of hearing has been afforded, as mentioned in the 'first proviso'. The 'second proviso' to the said Rule
says that no application for Revision shall be entertained against an order appellable under the Act. Sub-rule (b) under Rule 5(1) of the Rules, 1995
further mandates that an application for Revision by any party shall be entertained only if it is on the point of law and not on facts. This clearly shows
that the scope of Revision is very much limited and that, it is only in respect of an order which is not appellable and further when it involves a point of
law and not on facts. This distinction was very much known to the law makers when sub-section (4) to Section 21 of the Act, 1993 was introduced by
way of an amendment (as per MP Act No. 2 of 1997 w.e.f 07.01.1997), stipulating under the said provision that the order passed by the Collector on
'reference' shall be final. In other words, the Legislature wanted to provide an opportunity to challenge the validity of the motion of no confidence, on
facts as well (which was not available under the reivisional jurisdiction under Rule 5 of the above Rules), by way of 'reference' to the District
Collector. Obviously, the resolution passed in a no-confidence motion is not an order or a proceeding of the authorities under the Panchayat, to be
subjected to challenge by way of Appeal or Revision but stands as the democratic will expressed by the representatives of people. However, the
procedural formalities to make the resolution valid, as provided under the provisions of law, have to be satisfied and the scrutiny of this aspect alone
comes within the authorities concerned, whether it be the District Collector who exercises power under Section 21(4) or the revisional authority
concerned in exercise of powers under Rule 5 of the Rules, 1995, if such Revision is maintainable against the order passed by the District Collector
under Section 21(4) of the Act, 1993. To put it more clear, on reference of a dispute with regard to the validity of no-confidence motion under Section
21(4) of the Act, 1993, it is open for the aggrieved party to raise a challenge in respect of both, on the 'factual aspect' as well as on 'legal aspects'
which is to be 'final', whereas in case of Revision, if it is maintainable, it can only be in respect of a 'point of law' as clearly stipulated under Rule 5(1)
(b) of the Rules and not on a question of fact. Whether Revision will lie against an order passed by the Collector under Section 21(4) of the Act, 1993
has to be considered in the above background.
10. With regard to the judicial pronouncements on the subject, interpreting the scope of very similar provision i.e. Section 21(4) of the Madhya
Pradesh Panchayat Raj Adhiniyam, 1993, a learned Judge of the Madhya Pradesh High Court made an in-depth analysis in this regard. Validity and
propriety of the order passed by the revisional authority was under challenge in the writ petition. As against secret ballot, the no confidence motion
was stated as passed based on the raising of hands by the members in favour of the motion, which procedure was declared as illegal by the Collector
as per the order passed under Section 21(4) of the Act, 1993 and the matter was remitted to hold the proceedings in accordance with law, after
issuing notice afresh. The fresh exercise also resulted in passing of the no-confidence motion, which was challenged again in a petition for reference
under Section 21(4) of the Act. This came to be rejected, leading to a revision petition before the Additional Commissioner under Rule 5 of the Rules,
1995, read with Section 21 of the Act, 1993. The Additional Commissioner allowed the revision petition holding that the meeting was virtually
conducted within one year of the first rejection and hence, it was not a valid one, in terms of Section 21(3) of the Act, 1993; besides that notices were
not properly offered for service or served to the parties concerned. The objection raised, questioning the maintainability of the revision petition was
overruled, which made the petitioner to approach the learned Single Judge by filing a writ petition. After analysing the provisions of law, the learned
Single Judge held that sub-section (4) of Section 21 did not provide anywhere that the order could not be challenged before the revisional authority or
the revisional Court. Reliance was sought to be placed on the rulings rendered by various High Courts under different statutes, holding that the word
'final' would only mean 'not appellable', but was open to revision or review. Reference was also made to the law declared by the Apex Court in Jetha
Bai & Sons, Jew Town, Cochin, etc v. M/S. Sunderdas Rathenai etc. {AIR 1988 SC 812}; where it was observed that the right of revision under the
Act was a right given by the Act. In a subsequent verdict passed by the Supreme Court in M/s. Super Cotton Bowl Refilling Works (supra) the
question posed for consideration was, whether even after the amendment of the Uttar Pradesh Sales Tax Act, revision would be tenable before the
High Court under Section 115 of the Code of Civil Procedure, 1908? It was noted by the learned Judge that the Supreme Court had observed that, the
expression 'final' prima facie meant that an order passed under the Act was conclusive and no further appeal would lay. It was accordingly held that,
when finality was attached to an order, judgment or decision, the said finality was in relation to an appeal alone (as no appeal will lie under the Act);
but such finality shall not affect the powers of the revisional authority which it enjoys under the Act. Applying the dictum to the given situation with
reference to the orders passed under Section 21(4) of the Act, 1993, the learned Judge held that against such an order, Revision was maintainable
before the revisional authority, who is certainly entitled to call for the records either suo-moto or on the application of any party, for satisfying himself
as to the legality or propriety of any order passed by or as to the regularity of the proceedings of the authority subordinate to him.
11. With regard to the judgment rendered in Sukhnandan Patel (supra), the no confidence motion passed was subjected to challenge in a revision
petition filed under Section 91 of the Act, 1993, where interference was declined and the revision petition was dismissed as not maintainable by the
Additional Collector, in view of Section 21(4) of the Act, 1993. On filing a writ petition against the said order, the matter was remanded, directing the
authorities concerned to treat it as a 'dispute' under Section 21(4) of the Act, 1993. After considering the same, the resolution of no-confidence motion
was set aside, for violation of the relevant Rules under different heads. This was sought to be challenged by the writ petitioner on various grounds. It
was stated by the opposite side, that the order passed by the Collector was revisable under Section 91 of the Act and in view of the existence of
alternate remedy, the writ petition was not maintainable and hence to be dismissed. The violation of different instances of the Rules was considered
elaborately by the learned Single Judge, who held that the finding rendered by the District Collector was not correct or sustainable either on facts or in
law and that the Collector had gravely erred in law, in making interference holding that once no confidence motion was passed, it could not be lightly
interfered with. The objection raised by the contesting Respondent with reference to the alternate remedy available by way of a 'Revision' was
considered with reference to the law declared in Kandhilal Patel & Others v. State of Madhya Pradesh & Others; {1999 (2) JLJ 109}. However, it
was observed that the decision in Kandhilal's case had already been referred to a 'Larger Bench', and hence that, it was without deciding whether
alternate remedy by way of 'Revision' was available under Section 91 of the Act or not, that the learned Judge observed that existence of alternate
remedy was 'prima facie doubtful', as Section 21 of the Act contained an independent provision for resolving the dispute. Existence of alternate
remedy was stated as not a bar and accordingly, the order passed by the Collector was held as not correct or sustainable. It was held that the no
confidence motion was validly passed against the Sarpanch, and hence, the contesting respondent was having no right to hold the office of Sarpanch
of the Gram Panchayat; thus allowing the writ petition, but for expressing doubt as to the availability of alternate remedy by way of Revision. It was
made clear in the penultimate paragraph i.e. paragraph 19 of Sukhnandan Patel (supra), that the observation made that the availability of alternate
remedy was not an absolute bar to make interference in a writ petition, was without meaning to decide that alternate remedy of filing Revision was
available under Section 91 of the Act.
12. A similar question as involved herein had come up for consideration before a learned Single Judge of the Madhya Pradesh High Court {Sadan
Kumar's case (supra) and noted in the reference order}. The no confidence motion passed against the Petitioner herein was challenged by filing an
appeal before the District Collector who allowed the same under Section 21(4) of the Act, 1993, which made the contesting Respondent to file a
revision petition before the Commissioner. The revision petition was admitted and the order passed by the District Collector was stayed, which was
sought to be challenged by filing a writ petition, contending that the revision petition was not maintainable. Though several questions were raised, it
was confined to the aspect whether the revisional authority was having power to entertain the 'Revision'. After making a reference to the judgment
rendered in Kandhilal Patel (supra) and several other judgments, besides making reference to the relevant provisions of the Act and the Rules (which
are exactly similar, as in the instant case), it was held that the remedy by way of 'Revision' was available against an order passed by the Collector
under Section 21(4) of the Act. As mentioned already, the dictum in Kandhilal Patel (supra) was subsequently doubted and referred to a Division
Bench and the said issue was decided by the Division Bench finally, as per the judgment in Smt. Premlata Jaiswal v. State of Madhya Pradesh; (2003)
AIHC 2441. The order of reference, as given in paragraph 4 of the said verdict is in the following terms:
4. Precisely, the order of reference is in the following terms:
When a resolution relating to vote of 'No Confidence Motion' is passed by the Gram Panchayat under Section 21(1) of the Madhya Pradesh
Panchayat Raj Adhiniyam, 1993, and an application is filed before the concerned Collector under Section 21(4) of the Act and the Collector decides
the dispute/controversy either way, whether the said decision can be assailed by way of an appeal or revisions under the Madhya Pradesh Panchayat
(Appeal and Revision) Rules, 1995, and whether the revisional authority can invoke suo motu power of revision to rectify the view taken by the
Collector on the ground that he has the power of superintendence?
13. The Bench referred to the various provisions under the Act and also the Rules; besides referring to the various rulings rendered by the Apex Court
and different High Courts with reference to similar or analogous provisions in other statutes. It was noted that the object of amendment by
incorporating sub-section (4) to Section 21 w.e.f 07.01.1997 was to provide relief, whereby the validity of the no confidence motion can be challenged.
After detailed deliberation, it was held that as per the considered opinion, the Bench was of the view that the statute providing for finality of the
decision attached to the order passed by the Collector under Section 21(4) of the Act, 1993 may preclude filing of 'Appeal'; but not a Revision/Review
before the superior authorities. It was accordingly, that the reference was answered, holding that, when no confidence motion was passed by the
Gram Panchayat under Section 21(1) of the Act,1993 and an application for reference was filed before the Collector under Section 21(4) of the Act
and the Collector decided the controversy/dispute either way, the said decision cannot be assailed by way of an 'Appeal', as finality is attached to the
decision of the Collector under sub-section (4) of Section 21 of the Act, 1993 by using the expression ""his decision shall be final""; but it can be
challenged under Rule 5 of the Rules, 1995 by way of a 'Revision'. The dictum is Kandhilal Patel (supra) stands affirmed by the Division Bench as per
the said judgment.
14. This question had come up for consideration before a learned Judge of this Court as well (one among us - Sanjay K. Agrawal, Judge). Writ
Petition (C) No. 80 of 2017 was filed challenging the correctness of the verdict passed by the revisional authority, whereby the order passed by the
Additional Collector under Section 21(4) of the Act rejecting the representation preferred against the validity of the no confidence motion passed on
08.06.2016 was interfered and set aside. The main contention was that the order of the Additional Collector under Section 21(4) of the Act, 1993 was
'final', and no Revision was maintainable. An extensive survey was made as to the relevant provisions of the Act and the Rules, besides referring to
the several judicial precedents. After exhaustive analysis, it was held that revision petition before the authority concerned was clearly maintainable and
accordingly, interference was declined and the writ petition was dismissed.
15. The scope of the term 'final' with regard to the order passed by a statutory authority, in relation to the further remedy provided by way of Revision
under the very same statute, had come up for consideration before the Apex Court in State of Orissa & Others v. Arakhita Bisoi; AIR 1977 SC 1194.
It was a case involving interpretation of the relevant provisions, particularly Section 44, 58 and 59 of the Orissa Land Reforms Act, 1960, as it stood
prior to amendment by Act 29 of 1976. The question considered was whether the order passed by the appellate authority under Section 44, which had
become final under Section 44(2), was capable of 'Revision' by the Collector under Section 59 before the amendment of the Act in 1976. Section 44 of
the said Act reads as follows:
44. (1) On the termination of the proceedings under S. 48, the Revenue Officer shall by order confirm the draft statement with such alterations or
amendments as may have been made therein under the said section.
(2) An appeal against the order of the Revenue Officer under sub-s. (1) confirming the statement if presented within thirty days from the date of the
order shall lie to the prescribed authority and subject to the results of such appeal, if any, the orders of the Revenue Officer shall be final.
16. Section 58 provided for a right of Appeal to any person aggrieved by an order passed under any of the sections enumerated in sub-section (1).
Section 59 provided for a 'Revision', which is to the following effect:
59. Revision:
(1) The Collector may revise any order passed in appeal by any officer below the rank of a Collector under this Act and the Board of Revenue may
revise any order passed by the Collector under this Act and the period of limitation for such revision shall be as may be prescribed.
(2) For the purpose of sub-s. (1) the Collector or the Board of Revenue as the case may be may suo motu or on application of either party or any
interested person call for and examine the record of any matter in respect of any proceedings under this Act as to the regularity of such proceedings
or the correctness, legality or propriety of any decision or order passed thereon and if in any case it appears that any such decision or order shall be
modified, annulled, reversed or remitted for reconsideration, the Collector or Board of Revenue as the case may be, may consider accordingly.
17. It was also brought on record that amendment to Section 44 was brought about only through Act 29 of 1976, whereby it was made clear that the
right to 'Revision' was available in respect of orders passed under Section 44(2) and the contention was that, as no finality was provided for orders
passed on Appeal under Section 58, 'Revision' under Section 59 was available only for those cases, where orders passed under Section 44(2) were
final and were not revisable under Section 59. The said contention was repelled by the Apex Court and it was held that, though the amendment to
Section 44 made it clear that the right of Revision was provided for orders passed under Section 44(2), this could never mean that Section 44(2) (as it
originally stood) did not provide for power of revision to the Collector under Section 59. As per the opinion of the Court, the amendment did not make
any difference. Referring to the rule of construction and the dictum laid down in The Bengal Immunity Company Limited v. The State of Bihar, AIR
1955 SC 661; the Bench held that the cardinal rule of construction was that, when there were two provisions standing in conflict with each other in a
statute, such that both of them cannot stand, they should, if possible, be interpreted that effect can be given to both and the construction which renders
either of them inoperative or useless should not be adopted except as the last resort, which was virtually known as 'rule of harmonious construction'.
The Bench held that there was no conflict between the relevant provisions of the statute referred to and that the term 'final' attached to the order
passed by the appellate authority would not bar the way of Revision under Section 59.
18. In view of the above discussion, we are of the firm view that the order passed by the Collector on reference of a dispute as to the validity of the
no-confidence motion under Section 21(4) of the Act, 1993 can be subjected to challenge by way of a 'Revision' before the competent authority, in
terms of Rule 5 of the Rules, 1995, read with Section 91 of the Act, 1993. The reference is answered accordingly.
19. The Registry is directed to place the writ petition before the learned Single Judge, as per roster, to deal with the merits of the case.