The subordinate legislation cannot be stretched to
such an extent which will negate the legislative intention as provided in
the principal legislation. In my considered view, the principal legislation
specifically provides that once the motion is carried out by the requisite
majority, the Sarpanch or the Upsarpanch ceases to hold office after
seven days, however, subject to he resigning before that period or
disputing the same in accordance with the statutory provisions.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 48 OF 2013
Pravin Shripati Yadav
Vs.
1. Grampanchayat, Minche,
CORAM : B. R. GAVAI, J.
DATE : JANUARY 10, 2013.
Citation;2013(2) MH L J 934
1 Rule. Rule made returnable forthwith.
2 The Petition takes exception to the concurrent order passed by the
Additional Collector, Kolhapur dated 14th August, 2012, thereby rejecting
the dispute filed by the present Petitioner challenging the No Confidence
Motion passed against him on 19th June, 2012 and the order passed by
the Divisional Commissioner, Pune dated 2nd January, 2013 thereby
dismissing the Appeal filed by the present Petitioner.
3 The facts in brief giving rise to the Petition are as under:
The Petitioner was elected as a member of Grampanchayat –
Minche, Taluka Hatkanangale, Dist. Kolhapur in the general election
which was held in the year 2012. The Petitioner had contested and
elected for the seat reserved for OBC. The post of the Sarpanch was
reserved for OBC and the Petitioner came to be elected on the said post.
A notice was issued to the Tahsildar Hatkanangale purportedly by nine
members of village panchayat proposing to move No Confidence Motion
against the Petitioner. In pursuance to the notice, meeting for
considering No Confidence Motion was conveyed by the Tahsildar on
19th June, 2012. In the said meeting, No Confidence Motion came to be
passed by the majority of nine members. The Petitioner made a
complaint on the said date that the signature of one member Smt.
Lokare was forged one and raised a grievance regarding that. Being
aggrieved thereby, the Petitioner preferred a dispute before the Collector
which was dismissed by the Additional Collector on 14th August, 2012.
Being further aggrieved, the Petitioner approached the learned
Divisional Commissioner by way of an Appeal. During the pendency of
the Appeal, the Petitioner also obtained an opinion regarding
genuineness of the signature of said Smt Lokare from a private hand
writing expert which opinion, according to the Petitioner, is in his favour.
An application was made to the Divisional Commissioner for sending
signature of Smt.Lokare to handwriting expert which was not decided,
and therefore, the Petitioner was required to approach this Court by way
of Writ Petition No.11973 of 2012. This Court in the order dated 20th
December, 2012 observed that the fact that the person whose signature
is in dispute was present in the No Confidence Motion and has voted
against the Petitioner is not in dispute, and further observed that the said
issue can be looked into even after the Commissioner decides his Appeal.
Subsequently the Appeal has been dismissed. Being aggrieved thereby,
the present Petition.
4 Shri Mankapure, the learned counsel appearing for the Petitioner
has raised following propositions in support of the Petition:
I) that while conducting the meeting in which No Confidence Motion
was passed, Rule 17 of the Bombay Village Panchayats (Meetings) Rules,
1959 (hereinafter referred to as “Meetings Rules”) was not followed. The
learned counsel in this respect submits that the Full Bench of this Court
in the case of Vishwas P. Mokal v/s Group Gram Panchayat Shihu and
Ors reported in 2011 (3) Bom. C. R. 495 has held that the Meeting
Rules are applicable even to a meeting which considers No Confidence
Motion and as such by non compliance with the said rules, the entire
proceeding stands vitiated. It is submitted that Rule 17 requires that No
Confidence Motion has to be moved by the proposer and seconded by
the Seconder. It is submitted that since the motion is not moved by the
proposer and seconded by the seconder, the entire proceeding of the
meeting shall stand vitiated.
II) Signature of one of the Applicants on the notice to the Tahsildar
was forged signature and as such the requisition for holding the meeting
to consider No Confidence Motion did not have requisite number of
members. It is submitted that since the fraud vitiates everything, the
meeting which was conveyed on the basis of such fraudulent notice itself
was not valid and as such resolution passed therein was not sustainable.
III) That, on account of the proposer and seconder not speaking in
meeting, the Petitioner was not made aware as to what are the
allegations against him and as such he did not have any opportunity to
meet the said allegations and as such great prejudice has been caused to
the Petitioner thereby vitiating the entire proceeding of the No
Confidence Motion.
5 The learned counsel submits that the Division Bench of this Court
in Letters Patent Appeal No.268 of 2012 along with companion matters,
has prima facie found that Rule 17 of the Meetings Rules is mandatory
and has therefore quashed and set aside the orders passed by the Single
Judge of this Court dismissing the Writ Petitions on similar ground. It is
submitted that the Division Bench has remanded the matters to the
Single Judge after quashing and setting aside the orders passed by the
Single Judge. It is therefore submitted that the Division Bench having
held the rules to be mandatory, this Court should allow the Petition in as
much as the proceedings conducted are in breach of Rule 17 of the
Meetings Rule. Mr. Mankapure, the learned counsel also relied upon
the judgment of the learned Single Judge of this Court in the case of
Vijay Ramchandra Katkar v/s Group Gram Panchayat Pali and Ors
reported in 2010 (6) Bom. C. R. 708, in support of the contention that
Rule 17 of the Meetings Rules is mandatory.
6 As against this, Mr. Adagule, the learned counsel appearing on
behalf of the Respondent Nos.5 to 13 submits that the Petitioner having
lost the confidence of the majority of the members, is not entitled to
invoke the equitable jurisdiction of this Court. The learned counsel
submits that in democratic setup what is important is, will of the
majority. The learned counsel further submits that the question as to
whether Rule 17 is directory or mandatory is itself kept open by the Full
Bench. The learned counsel submits that in the facts of the present case,
the provisions of Rule 17 cannot be held to be mandatory, but will have
to be hold as directory. The learned counsel therefore prays for rejection
of the Petition.
7 For appreciating rival controversy, it will be relevant to refer to
Section 35 of the Bombay Village Panchayat Act, 1958 which reads thus:
35. Motion of no confidence. [(1) A motion of no
confidence may be moved by not less than [one third] of
the total number of the members who are for the time
being entitled to sit and vote at any meeting of the
panchayat against the Sarpanch or the UpaSarpanch
after giving such notice thereof to the Tahsildar as may
be prescribed. [Such notice once given shall not be
withdrawn.]
(2) Within seven days from the date of receipt by him of
the notice under subsection (1), the Tahsildar, shall
convene a special meeting of the panchayat at for
considering the motion of no confidence at the office of
the panchayat a time to be appointed by him and he
shall preside over such meeting. At such special meeting,
the Sarpanch or the UpaSarpanch against whom the
motion of no confidence is moved shall have a right to
speak or otherwise to take part in the proceedings at the
meeting (including the right to vote).
(3) If the motion is carried by [a majority of not less than
twothird of], the total number of the members who are
for the time being entitled to sit and vote at any meeting
of the panchayat or the UpaSarpanch, as the case may
be, shall cease to hold office after seven days from the
date on which the motion was carried unless he has
resigned earlier or has disputed the validity of the
motion so carried as provided in subsection (3B); and
thereupon the office held by such Sarpanch or Upa
Sarpanch shall be deemed to be vacant:
[Provided that, where the office of the Sarpanch being
reserved for a woman, is held by a woman Sarpanch,
such motion of noconfidence shall be carried only by a
majority of not less than threefourth of the total number
of the members who are for the time being entitled to sit
and vote at any meeting of the panchayat:]
[[Provided further that], no such motion of no
confidence shall be brought within a period of six
months from the date of election of Sarpanch or Upa
Sarpanch.]
(3A) If the motion [is not moved or is not carried] by [a
majority of not less than [or, as the case may be, three
fourth, of] the total number of the members who are for
the time being entitled to sit and vote at any meeting of
the panchyat, no such fresh motion shall be moved
against the Sarpanch or, as the case may be, the Upa
Sarpanch within a period of [[one year] from the date of
such special meeting.]
(3B) If the Sarpanch or, as the case may be, the Upa
Sarpanch desires to dispute the validity of the motion
carried under subsection (3), 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 fifteen days from the date on which it
was received by him; and any such decision shall, subject
to an appeal under subsection (3C), be final.
(3C) Any person aggrieved by the decision of the
Collector may, within seven days from the date of receipt
of such decision, appeal to the Commissioner who shall
decide the appeal, as far as possible, within fifteen days
from the date on which the appeal is received by him
and any such decision shall be final.
(3D) Where on a reference made to him under sub
section (3B), the Collector upholds the validity of the
motion carried under subsection (3) and no appeal is
made by the Sarpanch or the UpaSarpanch under sub
section (3C) within the limitation period specified in that
subsection, or where an appeal is made under sub
section (3C) but it is rejected by the Commissioner, the
Sarpanch or, as the case may be, the UpaSarpanch shall
cease to hold office in former case immediately after the
expiry of the said limitation period and, in the latter
case, immediately after the rejection of the appeal, and
thereupon the office held by such Sarpanch or Upa
Sarpanch shall be deemed to be vacant.]
(4) In cases where the offices of both the Sarpanch and
UpaSarpanch become vacant simultaneously, the District
Village Panchayat Officer or such other officer as he may
authorise in this behalf shall, pending the election of the
Sarpanch exercise all the powers and perform all the
functions and duties to the Sarpanch but shall not have
the right to vote in any meeting of the panchayat.”
8 It will also be relevant to refer to Rule 2 of the Bombay Village
Panchayats Sarpanch and Upsarpanch ( No Confidence Motion) Rules,
1975 (hereinafter referred to as “No Confidence Motion Rules”) which
reads thus:
“2.(1) The members of a panchayat who desire
to more a motion of noconfidence against the
Sarpanch or the UpaSarpanch shall give notice
thereof in the form appended hereto to the
tahsildar of the taluka in which such panchayat is
functioning. Where the members desire to move
the motion of noconfidence against the
Sarpanch as well as the UpaSarpanch, they shall
give two separate notices.
2) The notice under subrule (1) shall be
accompanied by [nine additional copies] thereof,
and the Tahsildar shall send one copy to the
Sarpanch, one to the UpaSarpanch and one
each to the Zilla Parishad, the Panchayat Samiti,
the Collector and the Commissioner. One copy
shall also be given to the Secretary.
[(2A) The Tahsildar shall also publish the said
notice by placing the same on the notice board at
the office of the Panchayat and Tahsildar office.
(2B) Every notice under subrule (1), wherever
it may be practicable, be served by delivering or
tendering it to the Sarpanch or UpaSarpanch to
whom it is addressed or, where such person
cannot be found, by delivery or tendering it to
any adult member of his family residing with
him; and if no such adult member can be found
or, where the Sarpanch, UpaSarpanch or such
adult member, as the case may be, refuses to
accept the notice, it shall be served by affixing it,
in the presence of two witnesses, on the outer
door or some other conspicuous part of the house
in which such Sarpanch or UpaSarpanch
ordinarily dwells. The notice served in this
manner shall be deemed to the served or
tendered or delivered to the concerned Sarpanch
or UpaSarpanch.]
3) The Tahsildar shall, immediately on receipt
of notice under subrule (1), satisfy himself that
the notice has been given by not less than one
third of the total number of members (other than
associate members) who are for the time being
entitled to sit and vote at any meeting of the
panchayat and then convene a special meeting
for the purpose within seven days from the date
of receipt of such notice.”
9 It will also be relevant to refer to Rule 17 of the Meetings Rule.
“17. (1) A member who has given notice of a
motion shall, when called on, either,
(a) state that he does not wish to move the
motion, or
(b) move the motion in which case he shall
commence his speech by a formal motion in the
terms appearing on the list of business, after the
motion is duly seconded.
(2) If a member when called is absent, any
other member may, with the permission of the
person presiding, move the motion standing in
the name of the absent member, if permission is
not granted to the other member to move the
motion, the motion shall lapse.”
10 It can thus clearly be seen that subsection 1 of Section 35
provides that a Motion of No Confidence can be moved by not less than
1/3rd of the total number of members who are for the time being
entitled to sit and vote at any meeting of the Panchayat. Subsection 2
thereof provides that within seven days from the date of receipt by him
of the notice under subsection(1), the Tahasildar shall convene a special
meeting of the panchayat for considering the Motion of No Confidence
at the office of the panchayat at a time to be appointed by him and such
a meeting will be required to be presided over by the Tahsildar. The said
proviso also provides that at such special meeting, the Sarpanch or the
UpaSarpanch against whom the Motion of No Confidence is moved shall
have a right to speak or otherwise to take part in the proceedings at the
meeting including a right to vote. Subsection 3 thereof provides that if
the motion is carried by a majority of not less than twothird of the total
number of the members who are for the time being entitled to sit and
vote at any meeting of the panchayat or the UpaSarpanch, as the case
may be, shall cease to hold office after seven days from the date on
which the motion was carried. However, this is made subject to the
resignation earlier to this period or the dispute regarding the validity of
the motion being carried as provided in subsection (3B). Proviso
provides that if the office of the Sarpanch which is reserved for a
woman, is held by a woman Sarpanch, such motion of noconfidence
shall be carried only by a majority of not less than threefourth of the
total number of the members who are for the time being entitled to sit
and vote at any meeting of the Panchayat). However, the said proviso
would not be relevant for adjudication in the present matter.
Second proviso provides that no such Motion of No Confidence
shall be brought within a period of six months from the date of election
of Sarpanch or UpaSarpanch.
Subsection 3 provides that if the motion is not moved or is not
carried by a requisite majority, such a No Confidence Motion cannot be
moved against the Sarpanch for a period of one year from the date of
such special meeting.
11 Subrule 1 of Rule 2 of the No Confidence Motion Rules provides
that the members of a Panchayat who desire to move Motion of No
Confidence against the Sarpanch or the UpaSarpanch, shall give notice
thereof in the Form to the Tahsildar. The said subrule provides that
where the motion is proposed to be moved against the Sarpanch as well
as the UpSarpanch, two separate notices shall be given. Sub rule 2 of
Rule 2 provides that the notice shall be accompanied by nine additional
copies one of which is required to be sent to the Sarpanch and to the
UpaSarpanch and one each to the Zilla Parishad, the Panchayat Samiti,
the Collector and the Commissioner. One copy is also required to be
given to the Secretary. Subrule 2A of the Rules requires the Tahsildar to
publish the said notice by placing the same on the notice board at the
office of the Panchayat and Tahsildar. Subrule 2B provides for the
manner in which such notice shall be served on Sarpanch or
Upsarpanch concerned. However, there is no dispute regarding the
service of the notice on the Petitioner and as such the said rule would
not be of much relevance in the present case. Subrule 3 provides that
Tahsildar shall, immediately on receipt of notice under subrule (1)
satisfy himself that the notice has been given by not less than one third
of the total number of members other than associate members, who are
for the time being entitled to sit and vote at any meeting of the
panchayat and then convene a special meeting for the purpose within
seven days from the date of receipt of such notice.
12 Rule 17 of the Conduct of Meetings Rules provides that the
member who has given the Notice of Motion when called on has an
option to state that he does not wish to move the motion or move the
motion. Clause (b) of subrule 1 of Rule 17 however, provides that if the
member moves the Motion, he shall commence his speech by a formal
motion in the terms appearing on the list of business, after the motion
is duly seconded.
13 The question, as to whether Rule 17 of the Conduct of the
Meetings Rules would also be applicable in the meetings which are
convened for considering the No Confidence Motion was for
consideration before the larger bench of this Court, in the case of
Vishwas Mokal (supra).
14 The Division Bench of this Court has answered the issue in
paragraph no.17 by holding that Rule 17 of the Meetings Rules would
apply even to the meetings convened for considering the No Confidence
Motion. There can be no doubt in view of the law laid down by the
larger bench that Rule 17 would be applicable to the meetings even
convened for considering the No Confidence Motion. However the only
question that would arise for consideration is as to whether the
provisions of Rule 17 can be considered to be mandatory in nature so as
to vitiate the proceeding in the meetings which have been conducted in
contravention of provisions of Rule 17 of the Meetings Rules or not. It is
pertinent to note the observations made by the larger bench in
paragraph no.18 of the aforesaid judgment which reads thus:
18. We make it clear that though it is clear to our mind
that the provisions of the Meeting Rules generally and
Rule 17 in particular will apply to the above extent to a
meeting called under Section 35, we are not deciding the
question as to what is the consequence in relation to
validity or otherwise of a motion of no confidence being
passed against Sarpanch or UpSarpanch in violation or
without following a particular Rule. That question will
have to be decided in each case after considering the
nature of the provision, whether the provision is
mandatory or directory. In other words, though it is clear
to our mind that the provisions of Rule 17 of the Meeting
Rules are to be followed in passing the motion in a
meeting called under Section 35, we are not deciding the
question as to what is the consequence if the provisions
are not followed and the motion is passed. Because, that
question as to whether the provisions of Rule 17 are
mandatory or directory has not been referred to us. In
our opinion, therefore, the first question will have to be
answered in the affirmative by holding that the provisions
of the Meeting Rules generally and provisions of Rule 17
in particular apply to a meeting convened under Section
35.”
15 It is thus clear that the larger bench had itself observed that
though the provisions of the Meetings Rules generally and Rule 17 in
particular will apply to the meetings called under Section 35, the Full
Bench has not decided the question as to what is the consequence in
relation to validity or otherwise of a Motion of No Confidence being
passed against the Sarpanch or Upsarpanch in violation or without
following a particular Rule. The Full Bench has observed that question
will have to be decided in each case after considering the nature of the
provision, whether the provision is mandatory or directory. The Full
Bench has clearly observed that though the provisions of Rule 17 of the
Meeting Rules are to be followed in passing the motion in a meeting
called under Section 35, it has not decided the question as to what is the
consequence if the provisions are not followed and if the motion is
passed. The Full Bench further observed that the question as to whether
the provisions of Rule 17 are mandatory or directory, the same has not
been referred to the Full Bench. It is thus clear that the Full Bench has
not considered the question whether the provisions of Rule 17 are
mandatory or directory.
16 The bench of the Apex Court consisting of three Hon'ble Judges
had an occasion in the case of K. Narasimhiah v/s H. C. Singri Gowda
reported in AIR 1966 SC. 330 to consider as to whether the provisions
regarding giving of three days' notice of a special meeting to discuss
resolution to express No Confidence is mandatory or not. In the said
case the Town Municipality had 20 Councillors. Thirteen out of them
had sent a requisition to the President to convene a special general
meeting to discuss a resolution expressing no confidence in the
President. The request was handed over to the President on 25th
September, 1963. Since the President did not take any steps for
convening the meeting, the Vice President acted in the matter calling a
meeting to discuss the Resolution to express No Confidence in the
President. A notice under the Vicepresident's signature stating that it
was proposed to hold a special general body meeting of the Municipality
on the 14th October, 1963 at 10.00 a. m. in the office premises and
asking the members to be present in time was served on the Councillors.
One copy of the notice was also posted up at the Municipal Office. The
notice was dated 10th October, 1963. Out of the 20 Councillors, the
notice was served on 15 Councillors on the very same day. The notice
was served on the three Councillors including the President on 13th
October. The other two Councillors were served on 11th October and 12th
October respectively. In the meeting which was held on the scheduled
date i.e. 14th October, 1963, 19 out of 20 Councillors including the
President were present. However, the President left the meeting and
then the meeting was held under the presidentship of the Vice
President. The No Confidence Motion was passed against the President
since the 15 Councillors had supported the No Confidence Motion. The
legality of the proceedings was challenged before the High Court by way
of a Writ Petition. The High Court rejected the Petition. An Appeal was
carried before the Apex Court. The main contention that was raised
before the Apex Court was that the three days notice of the Special
General Meeting was not given, and as such, the meeting was invalid.
The Apex Court therefore considered the question as to whether the
provisions of three days notice was mandatory or directory.
17 It will be relevant to refer to the following observations of the
Apex Court in the case of K. Narasimhiah(supra), in paragraph nos.12
to 14.
“12.The question then is : Is the provision of three clear
days notice mandatory, i.e., does the failure to give such
notice make the proceedings of the meeting and the
resolution passed there invalid ? The use of the word "shall"
is not conclusive on the question. As in all other matters of
statutory construction the decision of this question depends
on the ascertainment of the legislature's intention. Was it
the legislature's intention in making the provision that the
failure to comply with it shall have the consequence of
making what it done invalid in law ? That is the question to
be answered. To ascertain the intention the Court has to
examine carefully the object of the statute, the consequence
that may follow from insisting on a strict observance of the
particular provision and above all the general scheme of the
other provisions of which it forms a part. In the State of U.P.
v. Manbodhan Lal Srivastava, 1958 S.C.R. 533, (S) AIR
1957 SC 912) where the question arose whether the
provisions of Art. 320(3)(c) of the Constitution are
mandatory (which provides that the Union Public Service
Commission or the State Public Service Commission shall
be consulted on certain disciplinary matters), this Court
laid stress on the fact that the proviso to the Article
contemplates that the President or the Governor as the case
may be make regulations specifying the matters in which
either general or in any particular class or in any particular
circumstances, it shall not be necessary for the Public
Service Commission to be consulted. Speaking for the Court
Sinha J. observed :
"If the provisions of Art. 320 were of a mandatory
character, the Constitution would not have left it to the
discretion of the Head of the Executive Government to
undo those provisions by making regulations to the
contrary."
13. This appears to have been the main reason for the
court's decision that the provisions of Article 320(3)(c) are
not mandatory. Naturally, strong reliance has been placed
on this decision on behalf of the respondents. It is pointed
out that while providing that three clear days' notice of
special general meeting shall be given to the Councillors,
the legislature said in the same breath that "in cases of
great urgency, notice of such shorter period as is reasonable
should be given to the Councillors of a special general
meeting." The decision of what should be considered to be
a case of "great urgency" was left entirely to the President
or the Vicepresident on whom the duty to call such a
meeting is given under s. 27(2). It is urged by the learned
Counsel that if the intention of the legislature had been to
make the service of three clear days' notice mandatory it
would not have left the discretion of giving notice for a
shorter period for some of the special general meetings in
this manner. We see considerable force in this argument.
The very fact that while three clear days' notice is not to be
given of all special general meetings and for some such
meetings notice only of such shorter period as is reasonable
has to be given justifies the conclusion that the "three clear
days", mentioned in the section was given by legislature as
only a measure of what it considered reasonable.
14. It is necessary also to remember that the main object of
giving the notice is to make it possible for the Councillors
to so arrange their other business as to be able to attend
the meeting. For an ordinary general meeting the notice
provided is of seven clear days. That is expected to give
enough time for the purpose. But a lesser period of three
clear days' is considered sufficient for "special general
meetings" generally. The obvious reason for providing a
shorter period of such meetings is that these are considered
more important meetings and Councillors are expected to
make it convenient to attend these meetings even at the
cost of some inconvenience to themselves. Where the
special general meeting is to dispose of some matter of
great urgency it is considered that a period of even less
than three clear days' notice would be sufficient.
18 No doubt, that clause 1B of Rule 17 of the Meetings Rules, uses
the word “that shall commence speech by the formal motion”.
However, the question would be as to whether by using the word “shall”
the Legislator intended the said provision to be made as mandatory. The
question would be as to whether intention of the Legislator could be to
invalidate the entire proceedings of the meeting in which No Confidence
Motion is passed on account of non compliance with the requirement for
Motion for No Confidence not being moved by the proposer as required
by Rule 17 of the said Rules. Not only this, but while considering the
question as to whether the said provision in Rule 17 which undisputedly
is a subordinate legislation could be interpreted so as to negate the
legislative intent as has been provided in the said Act which is the
principal legislation. The perusal of subsection 3 of Section 35 of the
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48.13.wp.jud
Bombay Village Panchayats Act, 1958 provides that if the No Confidence
Motion is carried by the requisite majority, the Sarpanch or Upsarpanch
shall cease to hold office after seven days from the date on which the
motion was carried unless he has resigned earlier or has disputed the
validity of the No Confidence Motion before the forum as provided in
the said section. As such, the legislative intention in the principal
legislation is clear. Once the motion is carried out by the requisite
majority as provided in the statute, the Sarpanch or Upsarpanch ceases
to hold the office. The subordinate legislation cannot be stretched to
such an extent which will negate the legislative intention as provided in
the principal legislation. In my considered view, the principal legislation
specifically provides that once the motion is carried out by the requisite
majority, the Sarpanch or the Upsarpanch ceases to hold office after
seven days, however, subject to he resigning before that period or
disputing the same in accordance with the statutory provisions.
19 It is further to be noted that the Rules only provide the procedure
for conducting the meetings. However as to what is the requirement of
Sarpanch or Upsarpanch ceasing the office on the No Confidence Motion
carried against him has been provided in the main statute i.e. Sub
section 3 of Section 35 of the said Act.
20 The provisions in subordinate legislation cannot be read in such a
manner which will defy legislative intention as provided in the main
statute.
21 It will also be relevant to refer to paragraph 20 of the judgment of
the Apex Court in the case of K. Narasimhiah (supra) which reads thus:
“20.We are therefore of opinion that the fact that
some of the Councillors received less than three
clear days' notice of the meeting did not by itself
make the proceedings of the meeting or the
resolution passed there invalid. These would be
invalid only if the proceedings were prejudicially
affected by such irregularity. As already stated,
nineteen of the twenty Councillors attended the
meeting. Of these 19, 15 voted in favour of the
resolution of noconfidence against the appellant.
There is thus absolutely no reason for thinking that
the proceedings of the meeting were prejudicially
affected by the "irregularity in the service of notice."
(emphasis supplied)
22 It can thus clearly be seen that the proceedings will be invalid only
if the proceedings were prejudicially affected by such irregularity.
23 Though Shri. Mankapure has strongly urged that due to the
manner in which the meeting was conducted a great prejudice has been
caused to the Petitioner, it is difficult to accept the said contention.
24 Shri Mankapure, the learned counsel submitted that if the
proposer and the seconder had given speeches, he would have known as
to what are the allegations against him and attempted to meet those
allegations. It is, therefore, submitted that the Petitioner has lost the
valuable opportunity to meet the allegations against him. In my
considered view, the No Confidence Motion cannot be equated with the
departmental proceedings.
25 In this respect, it will be appropriate to refer to the following
observations of the Apex Court in the case of Babubhai M. Patel v/s
Nandlal K. Barot and Ors reported in AIR 1974 SC 2105.
“ It is pertinent in this context to observe that
there is a difference between a motion of no
confidence and a censure motion. While it is
necessary in the case of a censure motion to set
out the ground or charge on which it is based,
a motion of no confidence need not set out a
ground or charge. A vote of censure
presupposes that the persons censured have
been guilty of some impropriety or lapse by act
or omission and it is because of that lapse or
impropriety that they are being censured. It
may, therefore, become necessary to specify
the impropriety or lapse while moving a vote
of censure. No such consideration arises when
a motion of no confidence is moved. Although
a ground may be mentioned when passing a
motion of no confidence, the existence of a
ground is not a prerequisite of a motion of no
confidence. There is no legal bar to the
passing of a motion of no confidence against
an authority in the absence of any charge of
impropriety or lapse on the part of that
authority. The essential connotation of a no
confidence motion is that the party against
whom such motion is passed has ceased to
enjoy the confidence of the requisite majority
of members.”
(emphasis supplied)
26 It can thus be clearly seen that the Apex Court in an unequivocal
term has held that the essential connotation of a no confidence motion is
that the party against whom such motion is passed has ceased to enjoy
the confidence of the requisite majority of the members. It has further
been held that there is no legal bar for passing a motion of no confidence
against an authority in the absence of any charge of impropriety or lapse
on the part of that authority.
27 In any case the requisition contains a specific charge that the
Petitioner was conducting the affairs of the Grampanchayat in an
arbitrary manner without taking anybody in the confidence and without
giving information to the other members regarding the work conducted.
It is not in dispute that the Petitioner had received a copy of the said
requisition. The Petitioner, for the reasons best known to him, has also
given a detailed reply to the Tahsildar pointing out therein as to how the
allegations are not correct. Not only this, but the proceedings of the
meetings would show that after the Tahsildar initiated the proceedings
and asked as to whether anybody would like to speak, it was the
Petitioner alone who chose to speak. The details as to what has been
spoken by the Petitioner have been stated in the minutes of the meeting.
It is only after the Petitioner was given an opportunity of putting up his
case the Resolution has been passed by the majority. It is thus very much
clear that the Petitioner was very much aware of what are the allegations
made against him and on what ground the No Confidence Motion was
being moved against him. The Petitioner was given an opportunity to
putup his case and only thereafter the motion was considered. In that
view of the matter, I find that the proceedings cannot be said to have
been conducted in the manner which has prejudiced the present
Petitioner.
28 Insofar as the next ground of the Petitioner that one of the
signatures being fraudulent is concerned, the perusal of subsection 1 of
Section 35 of the said Act would reveal that the requisition as to No
Confidence Motion is required to be signed by the 1/3rd of the total
number of the members. Undisputedly, the total number of the members
of the Grampanchyat concerned, is thirteen. Assuming for a moment
that the signature of Smt Lokare is not genuine and for a moment it is
considered that she has not signed the requisition, still the requisition
would consist of eight members inasmuch as there are nine persons who
have signed the requisition including Smt Lokare. In a Grampanchayat
of 13 members, 1/3rd would come to 4.33. Giving an advantage of
rounding of to the Petitioner, still the number would be five members.
As such even if the signature of Smt Lokare is excluded there would be
still eight signature in support. It is apart from the fact that the said Smt
Lokare had participated in No Confidence Motion and supported the No
Confidence Motion. Not only that but she has also filed the affidavit
before the Collector that she had signed the requisitiion and that she had
participated in the proceedings and supported the No Confidence
Motion. In that view of the matter, I find that the contention in that
regard is also without any substance.
29 Insofar as the judgment of the Division Bench of this Court in
Letters Patent Appeal No. 268 of 2012 is concerned, no doubt that the
Division Bench has set aside the orders which were impugned in the
bunch of Appeals before the Division Bench. It appears that in the
judgments which were impugned, the learned Single Judge had held
that Rule 17 was not applicable to the meeting convened for
consideration of motion for no confidence. In that view of the matter,
the Division Bench has observed thus in paragraph nos.4 and 5 as
under:
“4. The statement so made, we have no
manner of doubt, is in the teeth of the legal
position expounded by the Full Bench of our
High Court in the case of Vishwas Pandurang
Mokal vs. Group Gram Panchayat Shihu and
ors. The Full Bench, in no uncertain terms,
has opined that there is no reason why the
provisions of the Meeting Rules ato the extent
that no contrary provision is made either in
the Act itself or in the No Confidence Motion
Rules should not apply to a meeting called
under Section 35. The Court also proceeded
to examine the question whether the
provisions of Rule 17 of the Meeting Rules
apply to a meeting called under Rule 35 and
held that the provisions of Rule 17 will apply
to a meeting called under Section 35.
5. In view of this exposition, it was not
open to the Learned Single Judge to decide
the matter on the basis of the view taken by
him in the past in some other cases. We
would proceed on the basis that the Full
Bench Judgment of this Court was not
brought to the notice of the Learned Single
Judge. Be that as it may, the view taken by
the Learned Single Judge, in the impugned
decision, cannot be sustained in law and,
since that is the basis for rejecting the
Petitions, the only appropriate course is to set
aside the impugned decisions rejecting the
Petitions, the only appropriate course is to set
aside the impugned decisions and relegate
the parties before the Learned Single Judge
for fresh hearing of the Writ Petitions on the
other issues, on its own merits, in accordance
with law. It is not necessary for us to advert
to the other decisions, which Mr. Gavnekar
wanted to rely, as this decision pertains to the
merits of the controversy of the Writ Petitions
and can be produced before the Learned
Single Judge.”
30 However, from the perusal of the entire judgment, it would not
reveal that the Division Bench had expressed any opinion even which
can be considered as obiter that the provisions of Rule 17 of the
Meeting Rules are mandatory in nature. As already discussed
hereinabove, the Full Bench had itself kept the question open as to
whether, the provisions of Rule 17 are directory or mandatory. Since the
said issue is kept open by the Full Bench, I have examined the question
as to whether the provisions of the Rule 17 could be held to be
mandatory in the facts of the present case or not. In that view of the
matter, I find that the reliance on the aforesaid judgment of the Division
Bench would also be of no assistance to the case of the Petitioner.
31 Insofar as the judgment of the learned Single Judge of this Court
in the case of Vijay Katkar (supra) is concerned, in my view, the said
judgment would not be applicable to the facts of the present case
inasmuch as in the said case, the Petitioner against whom the No
Confidence Motion was passed was not given an opportunity to speak
before the No Confidence Motion was considered by the Grampanchayat.
In that view of the matter, the No Confidence Motion would be in breach
of the provisions of subsection 2 of Section 35 and as such the Motion
would not be sustainable in law. Such is not the case here. In the present
case, the Petitioner was given full opportunity of putting up his stand
before the No Confidence Motion came for consideration. In that view
of the matter, the said judgment would also not be applicable.
32 The Division Bench of this Court in the case of
(Smt.Annapurnabai Ajabrao v. Annapurnabai Anandrao) reported in
1967 Mh.L.J. NOC 36, while considering the challenge to the regularity
of the proceedings of the meeting held to consider the resolution of no
confidence motion against the Sarpanch, observed thus:
“Even if it were to be assumed that there was some
technical flaw in the proceedings of the meeting or in
transmission of the results of the meeting to the
Panchayat Samiti, we do not see how that could entitle
the petitioner to claim to continue as Sarpanch of the
Gram Panchayat. A Gram Panchayat is essentially a
democratic institution which must be run on democratic
principles. When the majority of the members have
clearly expressed that they do not desire the petitioner to
be their leader and Sarpanch, appropriate attitude of the
petitioner as a person working for democracy whatever
have been to tender her registration straightway. At any
rate, it does not behave of democratic spirit to challenge
the decision of the majority who unmistakably declared
their want of confidence in their erstwhile leader.
Democratic principles as has also a sense of self respect
should have been impleaded the petitioner and persons
situated in similar circumstances to graciously submit to
the decision of the majority and to walk out of the Gram
Panchayat. Notice raising frivolous contention and
forcing herself on the democratic institution it does not
want her to hold that position.”
33 The Division Bench of this Court, in the case of (Nimba Rajaram
Mali Vs. Collector, Jalgaon and Ors.) reported in 1999(1)Bom C.R. 546,
followed the aforesaid Judgment in the case of Smt. Annapurnabai
Ajabrao v. Annapurnabai Anandrao (referred supra) and observed thus:
“In a democratic society what is important is the will of
the majority and the elected representatives must honour
the will of the majority. It is immaterial to analyse and
debate on the reasons behind the will of the majority or
the specific reasons for such will being expressed. The
will of the majority is of paramount importance and it
must be respected by all elected representatives
responsible for the governance of such democratic
institutions. As observed by the Apex Court in the case of
(Babubhai Mulji Patel Vs. Nandalal) 1974 DGLS 278
(soft) : AIR 1974 S.C.2105 : 1974 (2) SCC 706 (supra),
resolution of No Confidence Motion is different from
Censure Motion and such a resolution cannot be faulted
on the ground that there were no reasons or reasons
were vague and lacked detailed specifications. Once the
resolution of No Confidence Motion is passed by a clear
majority and in keeping with the requirements of the
concerned statutory provisions, the person against whom
such a resolution is passed, must honour the will of the
majority and make away for the new election of his
successor. Unless it is shown that while passing such a
resolution of No Confidence Motion, there was flagrant
violation of any of mandatory procedure laid down, such
a resolution cannot be interfered with by the Court or
statutory authorities adjudicating such disputes.”
34 In a democratic set up a person is expected to respect the mandate
of majority. Support of a majority is fundamental in the democratic set
up and particularly when no prejudice is pointed out by alleged
departure from the procedural requirement, the mandate of the majority
cannot be interfered with lightly by this Court.
35 Things would have to be looked into from another angle. In the
Grampanchyat concerned, there were thirteen members. Out of
thirteen, nine members have lost confidence in the Petitioner. If the
contention of the Petitioner is accepted and the Petitioner is thrust upon
the Village Panchyat as Sarpanch, the entire functioning of the
Grampanchayat will come to stand still. In as much as it would be
difficult for the Petitioner to discharge his duties effectively as Sarpanch
when the nine members out of the thirteen are opposed to his
contention.
36 In that view of the matter, I do not find that a case is made out for
interference in the extra ordinary jurisdiction of this Court under Article
226 and 227 of the Constitution of India. The Petition is therefore
dismissed. Rule is discharged.
37 At this stage, Shri Mankapure, the learned counsel requests for
direction to the Respondent not to take any steps for filling up the post
of Sarpanch for a period of one week from today.
38 In the light of the view that I have taken, I do not find that the
case is made out for grant of the relief as prayed. Rejected.
( B. R. GAVAI, J.)
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