Nivruti Dnyanoba Davale(Patil vs The Additional Collector
2013 Latest Caselaw 190 Bom

                                  1                               W.P.3937.13

                                              
               IN  THE HIGH COURT OF JUDICATURE AT BOMBAY 
                          BENCH AT AURANGABAD




                                                                      
                        WRIT PETITION NO. 3937 OF 2013




                                              
     1.    Nivruti Dnyanoba Davale(Patil)
           Age 45 yrs. Occu. Agri.

     2.    Sou. Shivkanta W/o Govind Rajarupe




                                             
           Age 25 yrs. Occ. Household.

     3.    Narayan S/o Rajaram Salunke
           Age 25 yrs. Occu. Agri.




                                      
     4.    Sour Bhagyashri W/o Rajkumar Rajarupe,
           Age 35 Yrs. occu. Household.

     5.
                       
           Bhagwan S/o Ramrao Duve,
           Age 42 yrs. Occu. Agri.
                      
     6.    Sou. Sulochana W/o Balaji Duve,
           Age   yrs. Occu. Household.

     7.    Premanand S/o Dattoba Sonkamble,
      

           age 25 yrs. Occu. Agri.
           All are R/o Kabansangvi,
           Tq. Chakur, Dist. Latur.                    ...PETITIONERS 
   



               VERSUS             

     1.    The Additional Collector,





           Latur.

     2.    The Tahsildar,
           Chakur, Dist. Latur.





     3.    Basavraj S/o Mallikarjun Nila,
           Age 45 yrs. Occu. Agri.
           R/o Kabansangvi Tq. Chakur,
           Dist. Latur.                                ...RESPONDENTS




                                              ::: Downloaded on - 27/11/2013 20:34:09 :::
                                   2                                        W.P.3937.13

                                             ...
               Shri  N.P. Patil, Jamalpurkar Advocate for Petitioners
                Shri S.D. Kaldate, AGP for respondent Nos. 1 and 2.




                                                                               
               Shri V.D. Gunale, Advocate for Respondent No. 3
                                            ...




                                                       
                                                 CORAM:   S. S. SHINDE, J.

                                                 DATE    :  22.11.2013
     ORAL JUDGMENT  :




                                                      

1. Rule. Rule made returnable forthwith. By consent heard finally.

2. The relevant facts, leading to file present petition as disclosed

.

in this writ petition are as under:

The petitioners herein are the members of the village

panchayat, Kabansangvi, Ta. Chakur, District Latur. Respondent

No. 3 herein is the member of Panchayat and earlier was elected as

Sarpanch of the village Gram Panchayat, Kabansangvi. It is the

case of the petitioners that 'No Confidence Motion' was passed by

2/3 majority, in the special meeting dated 29.01.2013. It is further case

of the petitioners that election of village Panchyat Kabansanvi was

held in the month of June 2010. Total strength of members of the

village Panchyat, Kabansanvi are nine. In the month of July 2003

respondent No. 3 was elected as Sarpanch of the village

Panchayat. It is further case of the petitioners that while functioning

as Sarpanch of the village Panchayat, various illegalities and

irregularities are committed by respondent No. 3. Therefore, the

3 W.P.3937.13

petitioners moved No Confidence Motion proposal dated 23.01.2013.

The Notice to that effect was given to the Tahsildar. The Tahsildar,

on receipt of the notice given by the petitioners, conveyed the

special meeting of the Panchayat for considering the motion of no

confidence at the office on 29.01.2013.

3. It is further case of the petitioners that notice of the meeting

was served on all the members of the Panchayat.. Out of total nine

members eight members were present including respondent No. 3.

One member, namely, Sau. Shobhabai W/o Vaijnath Motipaval, who

is mother-in-law of respondent No. 3, was absent in the meeting. It is

further case of the petitioners that Tahsildar presided over the

meeting and allowed the Sarpanch to raise his defence on the

allegations against him. It is further case of the petitioners that out

of eight members, who are present in the meeting, seven members

have caste their votes in favour of motion of no confidence. Motion

was passed by more than 2/3 majority.

4. It is further case of the petitioners that respondent No. 3 has

filed Dispute before the Additional Collector. The Additional

Collector has set aside the motion of no confidence passed against

respondent No. 3, by the impugned order dated 26.04.2013 and the

same is challenged in this petition.

4 W.P.3937.13

5. Learned counsel appearing for the petitioners submitted that

no confidence motion was passed by more than 2/3 majority, and

therefore, the Additional Collector should not have interfered with

no confidence motion. It is submitted that the principal ground

assigned by the Additional Collector while interfering in the no

confidence motion appears to be that no reasons are assigned by

the Tahsildar about the charges leveled against respondent No. 3.

6. Learned counsel appearing for petitioner further submitted

that when no confidence motion was moved, it was not necessary

to the Tahsildar i.e. Presiding Officer to set out the ground or charge

on which no confidence is based. It is submitted that this Court in

the case of Pravin Shripati Yadav Vs. Gram Panchyaat Minche,

Tal Hatkanangale and others reported in 2013(2) ABR 611, and in

particular, in paragraph No. 25 thereof, relied upon the judgment of

the Supreme Court in the case of Babubhai M. Patel Vs. Nandlal K.

Barot and others reported in AIR 1974 SC 2105 and has taken a

view that there is difference between a motion of no confidence

and a censure motion. While it is necessary in the case of 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.

According to the learned counsel appearing for the petitioners, it

was not necessary for the Presiding Officer to set out ground or

5 W.P.3937.13

charge since motion moved by the petitioners was no confidence

motion.

7. Learned counsel appearing for petitioners also invited my

attention towards paragraph Nos. 3 and 4 of the impugned order

and submitted that contrary findings are recorded by the Collector

inasmuch as in paragraph No. 3, the Additional Collector has

recorded his satisfaction about participation of the members

including respondent No. 3 in the meeting and observed that

opportunity was given to the members to express their views.

Therefore, learned counsel appearing for petitioners submitted that

in paragraph No. 3 satisfaction has been recorded by the Additional

Collector, Latur about the opportunity to the members to express

their views. Stray observations in paragraph No. 4 of the impugned

order are 'that prima facie it appears that opportunity was not

given,' is contrary to the reasons given in paragraph No. 3. It is

submitted that the proceedings of the meeting recorded by the

Presiding Officer, makes it clear that, on the relevant day relevant

procedure and rules have been followed and thereafter no

confidence motion has been passed by more than 2/3 majority of

the members, who participated and voted in the said meeting.

Therefore, relying on the grounds taken in the writ petition,

annexures thereto and law laid down in the judgments of the

6 W.P.3937.13

Hon'ble High Court and the Hon'ble Supreme Court (cited supra),

learned counsel appearing for petitioners submitted that petition

deserves to be allowed.

8. On the other hand, learned AGP invited my attention to the

affidavit in reply filed on behalf of respondent No. 1 and submitted that

no confidence motion was passed without debating subject.

9. Learned counsel appearing for contesting respondent No. 3

submitted that grounds taken in the dispute have not been

considered by the Additional Collector. He submits that one of the

member did not receive the notice and to that effect ground was

taken by respondent No. 3 in the dispute. However, there is no

specific adjudication by the Additional Collector on the said

ground. It is further submitted that as required by relevant rules

proper procedure is not followed and respondent No. 3 was not

given opportunity to express his view. It is submitted that, no

confidence motion was neither proposed nor seconded by any of

the members, which is statutory requirement of the relevant rules. In

support of this contention the learned counsel appearing for

respondent No. 3 has placed reliance on the judgment in the case

of Indubai Vedu Khairnar Vs. State of Maharashtra reported in

2003(2) BCR 239. Therefore, relying upon the reasons recorded by

7 W.P.3937.13

the Collector and arguments advanced across the bar and the

grounds taken in the writ petition and annexures thereto learned

counsel appearing for respondent No. 3 has submitted that the

petition is devoid of any merit and deserves to be dismissed.

10. I have heard the learned counsel for the parties at length.

With their able assistance I have perused the grounds taken in the

petition and annexures thereto and the impugned order passed by

the Additional Collector, Latur and also reply filed by respondent

Nos. 1 and 3. In order to ascertain whether there was

discussion/debate in the meeting, which was conducted on

29.01.2013 at 2.00 p.m., I have perused the copy of the proceedings

book, which is placed on record (from page No. 12 to 15). Upon

perusal of said proceedings, it is abundantly clear that sanctification

recorded by Additional Collector in paragraph No. 3 of the

impugned order appears to be in consonance with proceedings of

the meeting. Paragraph No. 3 from the order of the Additional

Collector reads thus.

"fnukad 29-01-2013 jksth vk;ksftr dsysY;k fo'ks"k cSBdhr oknh gs Lor% mifLFkr gksrs r'kh bfro`Rr jftLVjyk uksan vkgs- bfro`Rr

jftLVjps voyksdu dsys vlrk oknh o izfroknh ;kauk lnj cSBdhl euksxr O;Dr dj.;kl la/kh fnyh vlY;kps Li"V gksrs- R;keqGs oknhl euksxr O;Dr dj.;kl la/kh fnysyh ukgh gs Eg.k.ks la;qDrhd ukgh-

8 W.P.3937.13

11. Therefore, the stray observation in paragraph No. 4 of the

impugned judgment that, prima facie it appears that no

opportunity was given to discuss on the issue raised in the meeting,

appears to be contrary to record, vague and contrary to specific

observation made in the paragraph No. 3.

12. It is not in dispute that out of nine members eight members

have been participated in the meeting. It is evident from the

proceedings book that out of eight members seven members by

raising their hands voted in favour of no confidence motion, as

rightly contended by the learned counsel appearing for the

petitioners and law laid down in the case of Pravin Yadav (Supra),

relying upon the judgment of the Supreme Court in the case of

Babubhai M Patel (Supra) that there is a difference between a

motion of no confidence and a censure motion. It is necessary in

the case of 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. Paragraph No. 25 from the judgment of this

Hon'ble Court in the case of Pravin Yadav (Supra) reads thus.

"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 Vs. Nandlal K. Barot and Ors., reported in AIR 1974 SC2105.

9 W.P.3937.13

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 pre- supposes 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

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)

13. The arguments of the learned counsel appearing for

respondent No. 3 that, no confidence was not proposed or

seconded by any of the members was not specifically argued and

therefore discussion of said point does not find place in the

impugned order of the Additional Collector. Therefore, if there is no

10 W.P.3937.13

adjudication on the said point, since the said point was not

specifically canvassed before the said authority, in writ petition filed

by the petitioners i.e. original non disputants in the dispute, the said

point deserves no consideration. Further the contention of the

learned counsel for respondent No. 3 that, no notice was served

upon one of the member of the village Panchayat is concern, it

appears that no such specific point was agitated before Additional

Collector or considered by the Additional Collector. Even if it is

presumed that there is no notice served upon one of members of

the Gram Panchayat, aggrieved person would be said member,

who has not received the notice. However, at the instance of

respondent No. 3 the said point deserves no consideration.

14. Therefore, in view of the reasons stated aforesaid, the

impugned judgment and order dated 26/04/2013 passed by the

Additional Collector, Latur cannot sustain in law inasmuch as said

judgment takes a contrary view to the law laid down by this Court

in the case of Pravin Yadav (Supra).

15. In that view of the matter, the impugned order is set aside. It

is declared that no confidence motion, which was passed in the

meeting dated 29.01.2013 by seven members out of eight members,

who were present in the meeting is validly passed, and said no

11 W.P.3937.13

confidence motion deserves to be implemented by all the concern

authorities by taking follow up action. The petition is allowed to

above extent Respondents/authorities are directed to take

immediate further steps on the basis of no confidence motion

passed in the meeting dated 29.01.2013 within two weeks from today.

16. Rule is made absolute in above terms. The petition is disposed

of accordingly.

                                 ig                                Sd/-

                                                  [ S. S. SHINDE,  J. ]
                               
                                          
     MTK