Bajirao S/O Namdeo Mali And Ors. vs Balu S/O Bhaulal Jain And Ors.
2005 Latest Caselaw 86 Bom

JUDGMENT

M.G. Gaikwad, J.

1. Heard learned Counsel for the parties.

2. Rule returnable forthwith. By consent of parties matter is taken up for final hearing.

3. The petitioners preferred this petition challenging the decision of Tahsildar, Pachora, rejecting No-Confidence Motion and for further relief to declare that no confidence is validly carried and to give direction to respondent No. 3 to take steps to hold fresh election of Up-Sarpanch of village Gram Panchayat, Lohara, Tq. Pachora.

4. Present petitioner Nos. 1 to 7 and respondent Nos. 1,4, 5 and 7 other members were elected as members of Gram Panchayat at Lohara, Tq. Pachora in the election held on 28.6.2000. The total members of this Gram Pahchayat are (17). One Ramesh Choudhari was elected as Sarpanch and present respondent No. 1 was elected as Up-Sarpanch. Seven members of this Gram Panchayat were disqualified under the provisions of Section 14-H of the Village Panchayat Act by judgment and order dated 30.6.2003 on account of non-payment of taxes. The said decision was challenged in appeal and appeal bearing No. 65/2003 was dismissed by Additional Commissioner by his order dated 8.9.2003. Out of 7 disqualified members 4 have preferred writ petition under Article 227 and the said petition is pending. As such out of 17 members of the Gram Panchayat, 7 members were disqualified. Respondent No. 1 who was working as a Up-Sarpanch was not discharging function of his office as per law. Hence present petitioners had given notice dated 29.10.2004 seeking No-Confidence Motion against respondent No. 1, After receipt of the said notice, respondent No. 3 conveyed a special meeting for considering the motion of no confidence at the office of Panchayat on 4.11.2004 at 2 p.m. The said meeting was attended by (9) members. The motion was discussed in detail. Respondent No. 1 also took part in the discussion. Thereafter, out of 9 members, 8 members voted in favour of the motion and No-Confidence Motion was carried against respondent No. 1 by 8 against 1 vote. In view of the provisions of sub-s..(2) of Section 35, the motion was validly passed. However, the Presiding Officer respondent No. 3 held that No-Confidence Motion was rejected as only 8 members voted in favour of the motion which number is less than 2/3rd of total number of 17 members of the Panchayat.

5. This decision of the Tahsildar was challenged before the Additional Collector at Jalgaon in Appeal No. 52/2004 by respondent No. 5 purporting to be an appeal under Section 35(3){C) and learned Additional Collector by his order dated 8.11.2004 rejected the appeal. Respondent No. 5 preferred Appeal No. 62/2004 before the Additional Commissioner who declared that No-Confidence Motion is carried by majority and post of Up-Sarpanch is held to have become vacant. In the meanwhile, present petitioners preferred this writ petition and claimed declaration that No-Confidence Motion is validity carried by majority and prayed for quashing and setting aside the decision of Presiding Officer and prayed that it be declared that No-Confidence Motion is validly passed by majority with direction to the respondent No. 3 to take steps to hold fresh election of Up-Sarpanch.

6. Shri Sakolkar, learned Counsel for petitioners relying upon the provisions of Section 35 submitted that 7 members of the Gram Panchayat out of 17 were disqualified. So, only 10 members were entitled to sit and vote in the meeting of the Gram Panchayat. Out of 10 members, 9 were present in the special meeting and 8 voted in favour of No-Confidence Motion. That is how the motion of Non-Confidence was carried by majority of not less than 2/3rd of the total number of members who were entitled to sit and vote but the Presiding Officer of the special meeting respondent No. 3 has illegally held that motion did not succeed. So the said order needs to be quashed and set aside. According to him, though the Additional Commissioner declared that the No-Confidence Motion is carried by majority, the appeal itself was not tenable, so it is necessary to quash and set aside the order of the Presiding Officer respondent No. 3 in the writ jurisdiction of this Court. The learned Assistant Government Pleader has also conceded that No-Confidence Motion was carried by valid majority. On behalf of respondent No. 5 only submission made is that liberty be given to respondent Nos. I and 5 to challenge the motion on the grounds other than the grounds adjudicated in this case if available.

7. On consideration of the rival submissions and the factual aspects, we are of the view that the motion has been validly carried by majority. There is no dispute that this Gram Panchayat consists of 17 members. There is also no dispute that 7 members were already disqualified by Competent Authority and only 10 members were entitled to sit and vote at that meeting of the Gram Panchayat. Out of these 10 members notice of no confidence was moved by 7 members (Exh. "D"). Respondent No. 3 called a special meeting on 4.11.2004 and notice of this meeting was served on 10 members. The meeting dated 4.11.2004 was attended by 9 members. Respondent No. 1 against whom motion was moved was also present and participated in the meeting. The proceedings of the said meeting Exh. E. shows that 8 members voted in favour of No-Confidence Motion. The Presiding Officer has held that the motion is rejected solely on the ground that this motion was not voted by required number i.e. by 2/3rd members of total strength which was 17. This interpretation or decision of the Presiding Officer respondent No. 3 is ex facie illegal. As per provisions of Section 35(3) of the Village Panchayat Act the motion carried by majority of not less than 2/3rd of the total number of members who are entitled to sit and vote at any meeting of the Panchayat is valid. Out of 17 members 7 were disqualified. So only 10 members were entitled to sit and vote in the meeting. Out of 10 members 8 members voted in favour of No-Confidence Motion. So this number is more than 2/3rd majority required for the valid motion. As such, the decision of Presiding Officer respondent No. 3 is not sustainable. This decision was challenged before the Additional Collector by respondent No. 5. The Additional Collector dismissed the appeal for want of jurisdiction. The said decision was challenged before Additional Commissioner who by his order dated 6.1.2005 held that No-Confidence Motion is validly carried and also declared that respondent No. 1 ceased to be Up-Sarpanch. Shri Sakolkar, learned Counsel appearing for petitioners has rightly pointed out that No-Confidence Motion was carried against Up-Sarpanch. So, as per provisions of Section 35(3)(B) of the Act Up-Sarpanch alone has right to refer the dispute to the Collector, being aggrieved person. In the present case, respondent No. 5 who is not an aggrieved person made reference to the Collector and also preferred appeal before Additional Commissioner, so that reference and appeal was not competent. That being the legal position, even though Additional Commissioner declared No-Confidence Motion as valid, the petitioners were required to approach this Court. As stated above, No-Confidence Motion is carried validly by the members exceeding 2/3rd majority of members who were entitled to sit and vote in that meeting. The Presiding Officer respondent No. 3 has misinterpreted the provisions of Section 35(3) of the Act. So his order dated 4.11.2004 is not sustainable and needs to be set aside with declaration that the No-Confidence Motion is carried validly and respondent No. 1 has ceased to be Up-Sarpanch of the Gram Panchayat respondent No. 2. On behalf of respondent Nos. 1 and 5 only submission made is that liberty be given to them to challenge the No-Confidence Motion on any other ground other than the ground adjudicated herein if available in law. The decision of Presiding Officer holding that the motion of no confidence did not succeed is quashed and set aside reserving the liberty in favour of respondent No. 1 to challenge the said No-Confidence Motion on any other grounds other than adjudicated in this petition, if available in law.

It is hereby declared that the No-Confidence Motion moved by these petitioners is validly carried in a special meeting dated 4.11.2004 and respondent No. 1 ceased to be Up-Sarpanch of Gram Panchayat respondent No. 2.

Respondent No. 3 is directed to take necessary steps to hold election for the post of Up-Sarpanch of village Gram Panchayat, Lohara, Tq. Pachora, in accordance with law.

In the result, petition is allowed. Rule made absolute in the above terms with no orders as to costs.