Bombay High Court
Sau. Shital W/O Ashok Pandre vs Collector, Yavatmal And 3 Others on 6 June, 2016
Bench: B.P. Dharmadhikari
wp6222.15 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 6222 OF 2015
Sau. Shital w/o Ashok Pandre,
aged about 32 years,
occupation - Chairman,
Panchayat Samiti, Zhari Zhamni,
District - Yavatmal, r/o At -
Adkoli, Post - Marki Buzruk,
Taluka - Zhari Zhamni,
District - Yavatmal. ig ... PETITIONER
Versus
1. Collector, Yavatmal.
2. Mithun Gopal Soyam,
aged about 28 years, r/o At &
Post - Matharjun, Taluka -
Zhari Zhamni, Dist. Yavatmal.
3. Sangita Keshav Nakle,
aged about 40 years, r/o At &
Post - Mukutban, Taluka -
Zhari Zhamni, Dist. Yavatmal.
4. Tahsildar, Zhari Zhamni &
President, Panchayat Samiti
Zhari Zhamni, Tahsil -
Zhari Zhamni & Dist. - Yavatmal. ... RESPONDENTS
Shri H.R. Gadhia, Advocate for the petitioner.
Shri N.H. Joshi, AGP for respondent Nos. 1 & 4.
Shri M.L. Vairagade, Advocate for respondent Nos. 2 & 3.
.....
CORAM : B.P. DHARMADHIKARI &
KUM. I.K. JAIN, JJ.
JUNE 06, 2016.
ORAL JUDGMENT : (PER B.P. DHARMADHIKARI, J.)
Heard finally Shri Gadhia, learned counsel for the
petitioner, Shri Joshi, learned AGP for respondent Nos. 1 & 4
and Shri Vairagade, learned counsel for respondent Nos. 2 & 3,
in terms of order dated 27.04.2016.
2.
Initially, there were total four members on
Panchayat Samiti Zhari Zhamni. One out of them was elected
on a Local Body i.e. Gram Panchayat, Mukutban, therefore, he
relinquished his seat. Hence, only three persons were left as
members of Panchayat Samiti. The petitioner, Respondent No.
2 and Respondent No. 3 are those three persons. Respondent
Nos. 2 & 3 then submitted a proposal for moving Motion of No
Confidence. The meeting has been conducted on 04.11.2015
and Respondent Nos. 2 & 3 supported the motion. It has been,
therefore, declared as carried and the petitioner has been
removed.
3. Shri Gadhia, learned counsel submits that language
of Rule 2 of the Maharashtra Zilla Parishads Presiding
Authorities (No-confidence Motion) Rules, 1962, are very clear.
The persons moving No Confidence Motion are required to
state the grounds therefor, submit the draft resolution which
has to contain name of person who will propose the Motion in
the meeting and separately has also to disclose that name.
Here, these mandatory requirements have been violated. He is
relying upon the Division Bench judgment of this Court in the
case of Bhagwanrao Sakharam Sanap vs. State of Maharashtra
& Ors., reported at 1996 (1) Mh. L.J. 705, to substantiate his
contentions.
4. Shri Vairagade, learned counsel and Shri Joshi,
learned AGP for respective respondents are opposing the
petition. They submit that the passing of motion itself
establishes loss of faith in the petitioner and thus by such
technical pleas, he cannot be permitted to continue in the
office. Shri Vairagade, learned counsel has placed reliance
upon the judgment of the Hon'ble Apex Court in the case of K.
Narasimhiah vs. H.C. Singri Gowda & Ors., reported at AIR 1966
SC 330; the judgment delivered by the learned Single Judge of
this Court on 02.07.2009 in Writ Petition No. 4096 of 2009
(Appa s/o Munjaji Pawar vs. The Divisional Commissioner,
Aurangabad Division, Aurangabad & Ors.) and the Division
Bench judgment of Karnataka High Court dated 18.01.2007 in
the case of Munirathnamma vs. The Assistant Commissioner,
Kolar.
5.
After hearing the respective counsel, we find that in
the case before the Hon'ble Apex Court between K.
Narasimhiah vs. H.C. Singri Gowda & Ors., (supra) a perusal of
para 5 shows that the appellant - President K. Narasimhiah was
very much present during the meeting which was held on
14.10.1963. It is in this background that non service of notice
on other members has been gone into by the Hon'ble Apex
Court.
6. In Writ Petition No. 4096 of 2009 decided by the
learned Single Judge of this Court at Aurangabad Bench, the
said judgment of the Hon'ble Apex Court has been looked into
and followed. The facts therein show that the petitioner - Appa
s/o Munjaji Pawar has attempted to plead non service of notice
by urging that Rule 7 of the Bombay Village Panchayat Rules,
1959, requires that notice of the meeting has to be served
personally on the members and in his absence upon, an adult
member of the family residing with member. The facts do not
show whether the meeting was attended by said Appa Munjaji
Pawar or not. This challenge has been looked into and has
been negated. Thus, adjudication of this challenge also does
not show any prejudice caused to the petitioner - Appa.
7. The learned Division Bench of Karnataka High
Court in the case of Munirathnamma vs. The Asst.
Commissioner, Kolar, (supra) has on 18.01.2007 considered
the provisions of Rule 3(2) of the Karnataka Panchayat
Raj (Motion of no confidence against Adhyaksha and
Upadhyaksha of Grama Panchayat) Rules, 1994, and noted that
though the provision requires 21 days clear notice, in the
matter before it, it was short by one day. The Division Bench
found that the challenge based upon such short notice after
actual passing of No Confidence Motion could not have been
entertained.
8. Thus, in all the matters which are relied upon by
the respondents, pure and simple technical violation was being
taken into account. Here, before us, it is pointed out that
Motion of No Confidence could not have been looked into by
the Collector and the meeting could not have been convened as
name of the proposer was not disclosed, grounds were not
pointed out and draft of proposed resolution to be moved was
also not enclosed. We have seen the original records produced
by the office of the Collector. The records show that apart from
the documents at Annexures C & D, there are no other
documents. We, therefore, find substance in the contention of
Shri Gadhia, learned counsel for the petitioner that the
provisions of Rule 2 of above mentioned rules as interpreted by
the Division Bench of this Court in the case of Bhagwanrao
Sakharam Sanap vs. State of Maharashtra & Ors., (supra) have
been violated.
9. Accordingly, we quash and set aside the Resolution
dated 04.11.2015. The petitioner is restored back to the post of
Chairman of Panchayat Samiti, Zhari Zhamni, District -
Yavatmal. However, it is open to the respondents to proceed in
accordance with law.
10. In the circumstances, writ petition is partly allowed
and disposed of. Rule is made absolute in above terms.
However, in the facts and circumstances of the case, there shall
be no order as to costs.
JUDGE JUDGE
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*GS.
