Bhika Narayan Gangurde And Ors. vs State Of Maharashtra And Ors.
2001 Latest Caselaw 575 Bom

JUDGMENT

R.M.S. Khandeparkar, J.

1. Heard the learned Advocates for the parties. Perused the records.

2. The petitioners challenge the judgment and order dated 17th October, 2000 passed by the Additional Commissioner, Nashik Division, Nashik in Appeal No. VP/A/84/2000. By the impugned judgment, the Additional Commissioner while allowing the appeal, had set aside the order dated 17th August, 2000 passed by the Additional Collector, Dhule in Gram Panchayat Dispute No. 18/2000 as well as the resolution of no confidence motion stated to have been passed in the meeting of Bhadane Gram Panchayat held on 10th July, 2000.

3. The facts in brief, relevant for the decision are that the notice relating to no confidence motion against the respondent No. 6 herein, who is Sarpanch of the said village Panchayat, was served upon the Tahsildar of Sakri by some of the members of the Panchayat on 5th July, 2000. Pursuant to the notice issued in respect of the said no confidence motion, the meeting was convened on 10th July, 2000 and the said motion was passed and thereby the respondent No. 6 was sought to be ousted from the office of the Sarpanch. The said proceedings in the meetings to consider the motion of no-confidence held on 10th July, 2000 were challenged by the respondent No. 6 by raising a dispute in that regard before the Collector, Dhule which came to be heard and rejected by the Additional Collector by its order dated 17th August, 2000 holding that the Notice of Motion of No-Confidence was properly served upon the respondent No. 6 as well as other members, who had failed to attend the meeting and secondly, that the Tahsildar had complied with the procedure prescribed under the relevant Act and the Rules made thereunder. Being aggrieved, the respondent No. 6 preferred an appeal under section 35(3)(c) of the Bombay Village Panchayats Act, 1958 (hereinafter called as "the said Act"), which was heard and disposed of by the impugned judgment and order by the Additional Commissioner, Nashik. Relying upon the circular dated 4th July, 1998, the Additional Commissioner has held that the Clause No. 22 of the said Circular being mandatory in nature and the same having not been complied with, the entire proceedings were bad in law and, therefore, the motion of no-confidence stated to have been passed against the respondent No. 6 was set aside. Hence, the present petition.

4. While assailing the impugned judgment, it was submitted by the learned Advocate for the petitioners that the non compliance of Clause No. 22 of the said Circular dated 4th July, 1998 is a mere irregularity in the recording of the proceedings of the meeting held to consider the motion of no-confidence and, therefore, non-compliance thereof cannot be held to vitiate the entire proceedings and the motion passed by majority in a democratic process. Placing reliance in the decision of the Division Bench of this Court in the matter of Nimba Rajaram Mali v. Collector, Jalgaon and others, , it was submitted that unless it is shown that while passing the resolution of motion of no-confidence, 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 and considering the fact that Clause 22 of the circular being not mandatory in nature, the Additional Commissioner erred in setting aside the resolution on the basis of non-compliance of the provisions of the said Clause. Reliance was also placed in the decision of the Division Bench of this Court in the matter of Hindurao Dnyanu Shirtode and another v. State of Maharashtra and others, .

5. On the other hand, the learned Advocates appearing on behalf of the respondents, have submitted that the provisions contained in Clause 22 of the circular dated 4th July, 1998 are made with the intention to have proper record of the proceedings duly certified by the persons attending the proceedings regarding the veracity and truthfulness of such proceedings. Bearing the same in mind, it cannot be said that the Clause is directory in nature. On the contrary, strict compliance thereof is necessary to have a proper record of the proceedings. Being so, it was contended that no fault can be found with the impugned order setting aside the motion of no-confidence for non-compliance of Clause 22 of the said Circular. Without prejudice to this contention, it was contended that considering the provisions of Rule 7 of the Bombay Village Panchayats (Meeting) Rules, 1959 (hereinafter called as "the Meeting Rules") and the law laid down by this Court in the matter of Shri Ashok Krishnakant Mehta v. State of Maharashtra and others, , there being no proper service of notice to the respondent No. 6 Sarpanch and some others, the entire proceedings were vitiated and, therefore, no fault can be found with the impugned order setting aside the motion of no-confidence.

6. Clause 22 of the Circular dated 4th July, 1998 provides that while preparing the report of the proceedings, it is necessary to obtain signatures of the persons attending the meeting at the end of such report. Undisputedly, in the case in hand, the signatures of the members were obtained at the beginning of the report regarding the proceedings and, there was no signatures of those persons at the end of the said report. It cannot be disputed, as rightly submitted by the learned Advocates appearing for the respondents, that the purpose behind the Clause is to ensure authenticity and veracity of the records in relation to the proceedings like the one for consideration of motion of no-confidence. However, that by itself cannot make the Clause mandatory in nature. Mere non compliance of Clause 22 per se, cannot render the proceedings to be bad in law unless it is shown that there was flagrant violation of the procedure to be followed while conducting the meeting relating to the motion of no-confidence. Preparation of report of such meeting is different from conduct of the meeting itself. If there is violation in the procedure of conducting the meeting and if violation is of any mandatory provision of law relating to the conduct of the meeting, certainly, it would go to the root of the matter and render the entire proceedings to be bad in law. However, mere lapse on the part of any authority in preparing the report of proceedings cannot render the meeting itself to be bad in law. Being so, it cannot be said that Clause 22 of the said Circular is mandatory in nature. Mere non-compliance thereof cannot vitiate the proceedings unless there is violation of the procedure regarding conduct of the meeting itself. There is no finding that there was any violation of mandatory provision of law relating to the conduct of the meeting for consideration of the motion of non-confidence, nor there was any contention in that regard, raised by the respondent No. 6 while raising the dispute relating to the motion of no-confidence.

7. The Division Bench of this Court in Nimba Rajaram Mali's case, relying upon the decision of the Apex Court in the matter of Babubhai Mulji Patel v. Nandalal, , has clearly observed that 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.

8. Being so, the impugned order setting aside the Motion of No-confidence on the ground of non-compliance of the provisions of Clause 22 of the Circular dated 4th July, 1998 cannot be sustained. However, the matter does not rest there.

9. It has been contended on behalf of the respondents and more particularly, the respondent No. 6, at whose instance, the dispute arose before the authority, that there was no service of notice regarding the meeting for consideration of Motion of No-confidence on the respondent No. 6 and some others. The contention was opposed on behalf of the petitioners submitting that the notice was properly served by affixation on the door of the last known residence of the respondent No. 6 in compliance of the provisions of Rule 7 of the Meeting Rules. In that regard, attention was also drawn to para No. 9 of the decision of the Division Bench of this Court in Nimba Rajaram Mali's case as well as to the panchanama drawn by the Talathi at the time of affixation of the notice on the door of the house of the respondent No. 6. Copy of the panchanama was produced by the learned Advocate for the petitioner, and the same was placed on record.

10. The Additional Collector, while rejecting the contention of the respondent No. 6 on the point of non service of notice, has observed in its judgment that the records disclose that notice regarding the meeting was affixed by the Talathi in the presence of panchas and, therefore, there was due compliance of the provisions of section 35 of the said Act as regards service of notice. Dealing with the issue of non service of notice, the Additional Commissioner in its impugned judgment has observed that the respondent No. 6 has contended that the notice was not served upon him and he was not in the village at the relevant time and that the Talathi had not made any efforts to serve the notice on any of the adult male member in the house of the respondent No. 6. Considering the records, the Additional Commissioner has arrived at a finding in the impugned judgment that in fact no efforts appear to have been made to serve the notice on adult male member. However, considering the fact that there is no provision in the said Act or Rules made thereunder that Motion of No-confidence cannot be moved against the Sarpanch when he is on leave or out of station, has refused to entertain the contention regarding non service of the notice. Apparently, therefore, the judgment does not disclose proper application of mind by the authority to the issue raised before it. The impugned judgment as well as the judgment of the Additional Collector apparently, disclose that the respondent No. 6 has specifically raised the issue of non service of notice regarding the meeting, upon him in accordance with the provisions of law. Being so, it was necessary for the authorities below to consider the same in proper perspective. However, the contention has been rejected on totally extraneous and irrelevant ground. While, the Additional Collector has held that because there is affixation of notice on the door of the house of the respondent No. 6, there is valid service of notice, the Additional Commissioner has held that in absence of provisions in the said Act and Rules made thereunder to the effect that Motion of No-confidence cannot be moved against the Sarpanch during the time he is on leave or out of station, has rejected the contention regarding non service of notice.

11. Rule 7 of the Meeting Rules provides that every notice under those Rules shall, if practicable, be served personally by delivering or tendering it to the member to whom it is addressed or if such person is not found, by giving or tendering it to an adult male member of his family who is residing with him. It further provides that if there is no such person to whom notice can be given or tendered, or where the member, or, as the case may be, in his absence, such adult male member, is present but 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 the member ordinarily resides. The said Rule further provides that if none of the aforesaid modes of serving notice is feasible, the notice shall be affixed, in the presence of two witnesses, on some conspicuous part of the house in which the member is known to have last resided or carried on business or personally worked for gain. Referring to the last part of the provision under Rule 7, it was sought to be contended on behalf of the petitioners that considering the fact that the notice had already been affixed in presence of two witnesses, as is revealed from the panchanama drawn by the Talathi, there is no substance in the contention regarding non service of notice. However, Rule 7 clearly provides that resort to affixation of notice on the door can be taken only when the other modes of service prescribed under the said rule are not feasible. Undisputedly, the other modes are first by delivering or tendering the notice to the member to whom the notice is addressed and in case, he is not found, by delivering or tendering the notice to the adult male member of his family residing with him in the house. It is only when the person on whom the notice is given or tendered and where the member or adult male member of his family refuses to accept the notice, the question of affixation of the notice on the door can arise. Undisputedly, there is no finding arrived at either by the Additional Collector or the Additional Commissioner regarding any attempt being made by the Talathi to tender the notice to the respondent No. 6 or any male adult member of the family of the respondent No. 6 before affixation of the said notice on the door of the house of the respondent No. 6. The learned Advocate for the petitioners would be justified in contending that there was no occasion for the Talathi to approach the respondent No. 6 as he was not available in the house and this is an undisputed fact. However, there is nothing on record either in the order of the Additional Collector or that of the Commissioner to show that an attempt was made by the Talathi to serve the notice on any of the adult male member of the family of the respondent No. 6. Even the panchanama, copy of which is produced in the course of hearing by the learned Advocate for the petitioners, does not disclose any such attempt on the part of the Talathi. Undoubtedly, in the panchanama there is a reference to the statement by the panchas to the effect that they were informed by the Talathi that the respondent No. 6 had refused to accept the notice when tendered to him as well as the family members of respondent No. 6 refused the notice when tendered to them. However, this is purely a hearsay evidence apparently disclosed from the panchanama. The panchanama does not disclose any such attempt to serve the notice by the Talathi in the presence of the panchas. On the contrary, the panchanama discloses that the Talathi had affixed the notice directly to the door of the house of the respondent No. 6 in presence of the panchas without following the procedure of attempting to tender the same to any male adult member of the family of the respondent No. 6 before such affixation of the notice on the door of the house. Being so, the records clearly disclose that the basic requirements of Rule 7 of the Meeting Rules were not complied with prior to affixation of the notice on the door of the house of the respondent No. 6.

12. It cannot be disputed that the provisions of the meeting rules would apply even to the notice issued in relation to the meeting for consideration of Motion of No-confidence. Undoubtedly, there are specific rules framed regarding Motion of No-confidence and they are called as the Bombay Village Panchayats Sarpanch and Upa-Sarpanch (No-Confidence Motion) Rules, 1975. However, those Rules do not provide for the mode of service of notice regarding the meeting. Moreover, Rule 2(c) of the Meetings Rules defines "motion" to mean a proposal made to evoke action on the part of the panchayat, and includes an amendment of a motion. In other words, even a motion in relation to the No-confidence against Sarpanch would include, within the meaning of said expression "motion" under Rule 2(c) of the said Rules. Besides, it has already been held in the unreported decision in the matter of Mandabai Balnath Rohom and others v. Ashok Fakira Chandar and others, in Writ Petition No. 575 of 2001, decided on 13th June, 2001 the service of notice relating to the meeting to consider Motion of No-Confidence shall be in accordance with the provisions of the Meeting Rules.

13. The records, therefore, do not disclose service of notice regarding the meeting to consider the Motion of No-confidence, upon the respondent No. 6. The reference in that connection to the decision of the Division Bench in Nimba Rajaram Mali's case and particularly, para No. 8 or 9 is of no assistance to the petitioners. Para 8 of the decision deals with the non service of copies of motion to the authorities. It does not deal with the non service of notice to members regarding meeting to consider Motion of No-confidence. Para 9 rather than assisting the petitioners, it supports the contention sought to be raised on behalf of the respondent No. 6. Para No. 9 reads thus :---

"9. On perusal of the proceedings of the special meeting held on 27th April, 1998, it is clear that the Talathi of village Shrisoli Pr. Pashirabad, Tq. & Dist. Jalgaon had gone to the house of Vikram Ukhardu Bobade on 23-4-1998 to serve the notice regarding the special meeting to be held on 27-4-1998 and when it was found that Vikram Ukhardu Bobde had gone out of station, notice was tried to be served on his family members and it was refused to be accepted. A report dated 24-4-1998 submitted by the Talathis in this regard is available on record and a panchanama was drawn on the same day in respect of this report. The said panchanamas has been signed by two witnesses in addition to the Talathi. It states that as the notice was not accepted by any of the family members of Shri Bobde, it was pasted on the door of his house. So far as Shri Kashiram Ramdas Mali is concerned, the notice was served by the Talathi on his brother Bapu Ramdas who has signed the acknowledgment as is evident from the record. It is not the case of the petitioner that the said brother was a minor. We, therefore, hold that the notice was properly served on Vikaram Bobde as well as Kashiram Mali and there is no merit in the contentions of the petitioner that there was failure to serve the notice and hence, the provisions of Rule 2(3) of the No Confidence Motion Rules were violated."

Apparently, it states that prior to the affixation of notice, the same was not accepted by any of the family members of Shri Bobde and, therefore, it was pasted on the door of his house and in case of Shri Kashiram Mali, the notice was served by the Talathi on his brother who had signed the acknowledgment as was evident from the record. In other words, the Talathi had made attempt to comply with the prerequisites prescribed under Rule 7 before proceeding to affix notice on the door of the house. Undisputedly, the records in the case in hand do not disclose any such attempt on the part of the Talathi. Hence, it is to be held that there was no notice served upon the respondent No. 6 regarding the meeting of Motion of No-confidence. Non service of notice goes to the root of the matter and that would vitiate the entire proceedings. As rightly submitted by the learned Advocate for the respondents, the Division Bench of this Court in Shri Ashok Krishnakant Mehta's case has clearly observed thus :---

"Bearing in mind the consequences of as well as the underlying basis for a resolution of no confidence, the law has incorporated a requirement of giving the Sarpanch or the Upa-Sarpanch, as the case may be, an opportunity of being heard before the members vote upon the resolution of no confidence. It cannot be said that the requirement of giving an opportunity to the Sarpanch or Upa-Sarpanch as the case may be is a rule of exclusion that would debar any other person apart from those against whom the motion of No Confidence is being moved. ....... An expression of view point at the meeting of the village Panchayat is a valuable right available to the members of the village Panchayat. The elected bodies at the local level fulfil basic principles of democratic functioning which are to be found as well in larger bodies at other levels of the polity. The right of each member of the house to address the house is a valuable safe-guard of democratic functioning . ............ The right of a particular member who is sought to be proceeded against on account of a specific misconduct or for having incurred a particular disqualification cannot be equated or confused with the general right of all the members to discus and debate. ...... The exclusion of members from addressing the village Panchayat was a fundamental flaw in the proceedings which would invalidate the resolution of No-confidence. The importance of a free debate in the Panchayat cannot be underemphasised. It lies at the heart of democracy. The Village Panchayat is an institution for democratic self-government at the leval of village. Any effort to stifle debate must be looked upon by the law with disfavour."

This apparently shows that denying an opportunity to the Sarpanch against whom Motion of No-confidence has been moved, to address the panchayat before the motion is considered, would amount to a fundamental flaw in the proceeding and it would invalidate the resolution of Motion of No-confidence. That being the law laid down by the Division Bench of this Court, and considering the fact that the Motion of No-confidence was passed without serving the notice of the meeting upon the respondent No. 6 who was a Sarpanch and against whom the Motion of No-confidence was to be considered, the resolution passed in such a meeting is to be held as having passed with fundamental flaw in the proceedings, thereby the entire proceedings stand vitiated in law. Undisputedly, the proceedings were challenged by respondent No. 6 on the said count. The contention in regard to the respondent No. 6 was rejected on totally extraneous ground and without proper application of mind and in improper exercise of jurisdiction.

14. The Apex Court in the matter of Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and others, has clearly held that where setting aside an order on the ground of lack of jurisdiction would result in the revival of an illegal order, refusal to interfere would be justified. Considering the said law laid down by the Apex Court, interfering in the impugned order on the ground that the resolution was illegally set aside on the ground of non compliance of Clause 22 of the circular would virtually amount to granting legal sanctity to a resolution which has been passed in contravention of the provisions of law and without following the mandatory procedure prescribed under the law. Though the reasoning based on which the final decision has been arrived in the impugned order cannot be accepted as sound and legally acceptable one, yet the final decision itself cannot be found fault with. In the facts and circumstances of the case, interference in the impugned order and to set aside the same would result in reviving the illegal resolution of the Panchayat. Therefore, in my considered opinion, this is a fit case, even after considering that the finding regarding non-compliance of Clause 22 of the Circular to be held to be bad in law, it is not necessary to set aside the impugned order.

15. In the result, therefore, the petition fails and is hereby dismissed. Rule is discharged with no order as to costs.