Bombay High Court
Sambhaji Babaji Sakure vs The Collector Ahmednagar And ... on 31 August, 2016
Bench: T.V. Nalawade
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
926 WRIT PETITION NO. 7895 OF 2016
WITH WP/7896/2016
SAMBHAJI BABAJI SAKURE
VERSUS
THE COLLECTOR AHMEDNAGAR AND OTHERS
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Shri. Sandip R. Andhale, Advocate, for petitioner.
Shri. U.H. Bhogale, Assistant Government Pleader, for
respondent Nos.1 and 2.
Shri. Rahul R. Karpe, Advocate, for respondent
Nos.3,5,6,7,8 and 9.
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CORAM: T.V. NALAWADE, J.
DATE : 31st AUGUST 2016
ORDER:
1) Both the petitions are filed to challenge the
motion of no confidence passed against the petitioners
and also the order of dismissal of the appeals filed by the
two petitioners to challenge the motion of no confidence.
The petitioner from Writ Petition No.7896 was the village
Sarpanch and the petitioner from other proceeding was
the Upa-Sarpanch of the village.
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2) The village Panchayat consists of 9 members
and they got elected in the general election of 2015. The
petitioner-Sarpanch belongs to Other Backward Class but
she was elected to the post of the Sarpanch when the post
of the Sarpanch was for open category. The first
requisition was given by six members out of 9 members
on 30-3-2016 but the Tahsildar did not call the meeting
and so one more requisition was given on 11-4-2016. The
Tahsildar called the meeting on the basis of the requisition
dated 30-3-2016 and in that meeting no confidence motion
was passed against both the Sarpanch and the Upa-
Sarpanch. This decision was challenged by both of them
by filing appeals and the appeals came to be allowed. The
appeal was allowed on the ground that the meeting was
not called within the specified period, 7 days, and so the
meeting itself was illegal though no confidence motion
was passed by majority as required by law.
3) The requisition under consideration was given
on 1-6-2016 and the Tahsildar issued notice on 2-6-2016
and called meeting which was to be held on 6-6-2016. On
5-6-2016 the petitioners filed Writ Petition No.5812/2016
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in this Court to challenge the act of the Tahsildar to call
meeting. This petition came to be dismissed. The meeting
was then held on 6-6-2016. It was attended by both the
petitioners and no confidence motion was passed.
4) The Sarpanch has challenged the motion on the
ground that the requisition of 1-6-2016 was given within
one year from the date of previous motion and so the
meeting itself is illegal. The Upa-Sarpanch has also made
similar contentions and the Upa-Sarpanch has no other
ground. Learned counsel for the Sarpanch submitted that
there is one more ground to the Sarpanch and that is
about the number of members which ought to have voted
in favour of the motion and he submitted that three-fourth
members ought to have voted in favour of the motion as
the Sarpanch was a lady.
5) This Court has carefully gone through the
relevant provisions of Section 35(3), (3-A) which run as
under.
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"35. Motion of no confidence.--
(1) ....
(2) ....
(3) If the motion is carried by a majority of not
less than two-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 the
Sarpanch or the Upa-Sarpanch, as the case may be,
shall forthwith stop exercising all the powers and
perform all the functions and duties of the office and
thereupon such powers, functions and duties shall
vest in the Upa-Sarpanch in case motion is carried
out against the Sarpanch; and in case the motion is
carried out against both the Sarpanch and Upa-
Sarpanch, in such officer, not below the rank of
Extension Officer, as may be authorised by the Block
Development Officer, till the dispute, if any, referred
to under sub-section (3B) is decided:
Provided that, if the dispute so referred is decided
in favour of the Sarpanch, or, as the case may be,
Upa-Sarpanch, thereby setting aside such motion,
the powers, functions and duties of the Sarpanch or
Upa-Sarpanch shall forthwith stand restored, and if
the dispute is decided confirming the motion, the
office of the Sarpanch or, as the case may be, Upa-
Sarpanch shall be deemed to have fallen vacant
from the date of the decision of the dispute, unless
the incumbent has resigned earlier:
Provided further that, in cases where the offices of
both the Sarpanch and Upa-Sarpanch become
vacant simultaneously, the officer authorised under
this sub-section shall, pending the election of the
Sarpanch, exercise all the powers and perform all
the functions and duties of the Sarpanch but shall
not have the right to vote in any meetings of the
panchayat:
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Provided also that, where the office of the Sarpanch
being reserved for a woman, is held by a woman
Sarpanch, such motion of no-confidence shall be
carried only by a majority of not less than 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 Panchayat:
Provided also 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.
(3-A) If the motion is not moved or is not carried by
a majority of not less than two-third of 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 meting of the Panchayat, 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 th date of such special
meeting."
6) The learned counsel for the petitioners
submitted that in view of the aforesaid provision and as
there was such motion in the past within the period of one
year mentioned in the provisions, the meeting itself was
illegal. This submission is not at all acceptable in view of
the wording of the provision. On this point the learned
counsel for the respondent placed reliance on the
observations made in Writ Petition No.5812/2016
(Aurangabad Bench) (Sow. Jaya v. Tahsildar and others).
This decision was rendered against the present petitioners
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when they had come before this Court when notice was
issued on 2-6-2016 on the basis of requisition dated 1-6-
2016. This Court made it clear that as the previous
meeting in which resolution was passed was itself illegal,
it cannot be said that there was motion moved or it was
carried. In view of these circumstances it was held that
there was no illegality in the order made by the Tahsildar
by which the meeting was called. In any case the wording
of the aforesaid provision shows that only if meeting takes
place, there is motion and if the motion fails, it is not
passed with majority as mentioned in the aforesaid
provision then the condition for subsequent requisition
applies. Thus there is no force in the first challenge to the
motion of no confidence passed against both the
petitioners.
7) The proviso to sub section (3) of section 35
shows that this provision is applicable only if woman
Sarpanch is elected at the time when the post was
reserved for women. Thus if a woman becomes Sarpanch
when the post was not so reserved, this provision is not
applicable. Thus in the present case as the post of the
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Sarpanch was not reserved for women, there was no
necessity of passing the motion with majority of not less
than 3/4th of the total number of members. Thus, there is
no force in the second challenge also.
8) The learned counsel for the petitioner placed
reliance on a case reported as 2000 (Supp.1) Bom.C.R.
884 (Kashinath v. Tahsildar). The facts of this reported
case were altogether different and question as to how the
period given in the aforesaid provision needs to be
counted was involved. Reliance was placed on another
case reported as 1998(2) All MR 281 (Bombay High
Court) (Full Bench) (Ashok Kondiba Yenpure v. State
Election Commission). The point involved in the said case
was totally different and the point involved in the present
matter was not at all involved in the said matter. Thus,
the observations made in the two cases decided by this
Court are of no use to the petitioners. In the result, both
the petitions stand dismissed.
Sd/-
(T.V. NALAWADE, J. )
rsl
