Bombay High Court
Shri Chagan Sadashiv Jadhav And ... vs Shri Somnath Pandurang Bhagwat, ... on 4 May, 2016
Bench: R.M. Savant
Reserved Judgment in WP-12009-15 & group matters.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.12009 OF 2015
1] Shri Chagan Sadashiv Jadhav ]
Age : Major ]
]
2] Shri Shyam Murlidhar Jadhav ]
Age : Major ]
]
3] Smt. Anupama Balasaheb Jadhav ]
Age : Major ]
ig ]
4] Smt. Asha Dattatraya Kale ]
Age : Major ]
]
5] Shri Eklah Ladachi Kureshi ]
Age : Major ]
]
6] Shri Paresh Shashikant Bhargve ]
Age : Major ]
]
7] Smt.Meenabai Madhukar Kathe ]
Age : Major ]
]
8] Shri Pralhad Soma Ghule ]
Age : Major ]
]
9] Shri Balasaheb Baburao Bhandare ]
Age : Major ]
]
10] Smt.Suman Kashinath Patil ]
Age : Major ]
]
11] Shri Shiv Narayan Sahale ]
Age : Major ]
]
12] Smt. Rekha Dilip Jadhav ]
Age : Major ]
]
13] Smt. Anjali Laman Pavde ]
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Age : Major ]
]
14] Smt. Jijabai Narayan Bhandare ]
Age : Major ]
]
All Residing at Kasbe Sukene ]
Taluka Niphad, District Nashik ]..... Petitioners.
Versus
1] Smt. Manisha Ramnath Bhandare ]
Sarpancha, Gram Panchayat ]
Kasbe Sukene, Taluka Niphad ]
District Nashik. ig ]
]
2] Shri Kishor Balasaheb Kardak ]
Age : Major ]
]
3] Shri Somnath Pandurang Bhagwat ]
Age : Major ]
]
All Members of the Village Panchayat, ]
Kasbe Sukene, Taluka Niphad ]
District Nashik. ]
]
4] The Tahsildar, Niphad ]
]
5] Gram Sevak, Grampanchayat ]
Kasbe Sukene Taluka Niphad ]
District Nashik ]
]
6] The Additional Collector, Nashik ].....Respondents.
ALONG WITH
WRIT PETITION NO.12010 OF 2015
1] Shri Chagan Sadashiv Jadhav ]
Age : Major ]
]
2] Shri Shyam Murlidhar Jadhav ]
Age : Major ]
]
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3] Smt. Anupama Balasaheb Jadhav ]
Age : Major ]
]
4] Smt. Asha Dattatraya Kale ]
Age : Major ]
]
5] Shri Eklah Ladachi Kureshi ]
Age : Major ]
]
6] Shri Paresh Shashikant Bhargve ]
Age : Major ]
]
7] Smt.Meenabai Madhukar Kathe ]
Age : Major ig ]
]
8] Shri Pralhad Soma Ghule ]
Age : Major ]
]
9] Shri Balasaheb Baburao Bhandare ]
Age : Major ]
]
10] Smt.Suman Kashinath Patil ]
Age : Major ]
]
11] Shri Shiv Narayan Sahale ]
Age : Major ]
]
12] Smt. Rekha Dilip Jadhav ]
Age : Major ]
]
13] Smt. Anjali Laman Pavde ]
Age : Major ]
]
14] Smt. Jijabai Narayan Bhandare ]
Age : Major ]
]
All Residing at Kasbe Sukene ]
Taluka Niphad, District Nashik ]..... Petitioners.
Versus
1] Shri Somnath Pandurang Bhagwat ]
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Member, Gram Panchayat ]
Kasbe Sukene, Taluka Niphad ]
District Nashik. ]
2] Smt. Manisha Ramnath Bhandare ]
Age : Major ]
]
3] Shri Kishor Balasaheb Kardak ]
Age : Major ]
]
All Members of the Village Panchayat, ]
Kasbe Sukene, Taluka Niphad ]
District Nashik. ]
ig ]
4] The Tahsildar, Niphad ]
]
5] Gram Sevak, Grampanchayat ]
Kasbe Sukene Taluka Niphad ]
District Nashik ]
]
6] The Additional Collector, Nashik ].....Respondents.
ALONG WITH
WRIT PETITION NO.12011 OF 2015
1] Shri Chagan Sadashiv Jadhav ]
Age : Major ]
]
2] Shri Shyam Murlidhar Jadhav ]
Age : Major ]
]
3] Smt. Anupama Balasaheb Jadhav ]
Age : Major ]
]
4] Smt. Asha Dattatraya Kale ]
Age : Major ]
]
5] Shri Eklah Ladachi Kureshi ]
Age : Major ]
]
6] Shri Paresh Shashikant Bhargve ]
Age : Major ]
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]
7] Smt.Meenabai Madhukar Kathe ]
Age : Major ]
]
8] Shri Pralhad Soma Ghule ]
Age : Major ]
]
9] Shri Balasaheb Baburao Bhandare ]
Age : Major ]
]
10] Smt.Suman Kashinath Patil ]
Age : Major ]
]
11] Shri Shiv Narayan Sahaleig ]
Age : Major ]
]
12] Smt. Rekha Dilip Jadhav ]
Age : Major ]
]
13] Smt. Anjali Laman Pavde ]
Age : Major ]
]
14] Smt. Jijabai Narayan Bhandare ]
Age : Major ]
]
All Residing at Kasbe Sukene ]
Taluka Niphad, District Nashik ]..... Petitioners.
Versus
1] Shri Kishor Balasaheb Kardak ]
Up-Sarpancha, Gram Panchayat ]
Kasbe Sukene, Taluka Niphad ]
District Nashik. ]
]
2] Smt. Manisha Ramnath Bhandare ]
Age : Major ]
]
3] Shri Somnath Pandurang Bhagwat ]
Age : Major ]
]
All Members of the Village Panchayat, ]
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Kasbe Sukene, Taluka Niphad ]
District Nashik. ]
]
4] The Tahsildar, Niphad ]
]
5] Gram Sevak, Grampanchayat ]
Kasbe Sukene Taluka Niphad ]
District Nashik ]
]
6] The Additional Collector, Nashik ].....Respondents.
Mr. P N Joshi a/w Mr. P B Rahade for the Petitioners in all the
Petitions.
Mr. S K Shinde, i/by Ms. Sneha G Sanap for the Respondent Nos.1 to 3
in all the Petitions.
Mrs. V S Nimbalkar, AGP for the Respondent Nos.4 and 6 in all the
Petitions.
CORAM : R. M. SAVANT, J.
Reserved on : 25th April 2016
Pronounced on :- 4th May 2016
ORAL JUDGMENT
1. Rule, with the consent of the Learned Counsel for the parties
made returnable forthwith and heard.
2. The above Writ Petitions take exception to the identical orders
dated 02/11/2015 passed by the Additional Collector, Nashik by which
orders the Motion of No Confidence passed against the Respondent No.1
in the above Petitions (W.P. No.12009 of 2015 and W.P. No.12010 of 2015)
in the meeting dated 05/09/2015 of the Gram Panchayat, Kasbe Sukene,
Taluka Niphad, District Nashik was set aside.
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3. Since the above Petitions involve common questions of law
and fact, they are heard together. The facts giving rise to the above
Petitions can in brief be stated thus :-
The Respondent No.1 to each of the above Petitions were
elected as the members of the Gram Panchayat Kasbe Sukene, Tal. Niphad,
Dist. Nashik. The elections were for the term 2012-2017. After the said
elections, the Respondent No.1 in Writ Petition No.12009 of 2015 Smt.
Manisha Ramnath Bhandare was elected as a Sarpanch; the Respondent
No.1 in Writ Petition No.12011 Shri Kishor Kardak was elected as Upa-
Sarpanch. The said Respondents would be hereinafter referred to as the
Sarpanch and Upa-Sarpanch. The Respondent No.1 in Writ Petition
No.12010 of 2015 Shri Somnath Pandurang Bhagwat continued to remain
as a member of the said Gram Panchayat.
The Petitioners herein who are also the members of the said
Gram Panchayat made a request to the Tahsildar, Niphad on 01/09/2015
for requisitioning a meeting of the Gram Panchayat for passing a Motion
of No Confidence against the Sarpanch and Upa-Sarpanch. After receipt of
the said requisition, the Tahsildar, Niphad convened a special meeting of
the Panchayat to be held on 05/09/2015 which meeting was called by the
Tahsildar vide his notice dated 2/09/2015. The notice of the said meeting
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was served on the Respondent No.1 to each of the above Petitions as also
the other members of the Gram Panchayat and a panchanama was drawn
to the said effect that the Respondent No.1 to each of the above Petitions
was served. The special meeting accordingly took place on 05/09/2015
and a Motion of No Confidence was passed against the Sarpanch and Upa-
Sarpanch with majority of 14:0. The minutes were accordingly prepared
by the Tahsildar and in terms of the rules applicable, it seems that the
motion passed in the meeting was communicated to the authorities, as
required to be communicated with the copies thereof. After passing of the
said resolution the Respondent No.1 in each of the above Petitions filed a
Dispute before the Additional Collector, Nashik. In so far as the
Respondent No.1 Smt. Manisha Bhandare (Sarpanch) is concerned, her
Dispute Application was numbered as 42 of 2015, in so far as the
Respondent No.1 Shri Somnath Bhagwat is concerned, his Dispute
Application was numbered as 45 of 2015 and in so far as the Respondent
No.1 Shri Kishor Kardak (Upa-Sarpanch) is concerned, his Dispute
Application was numbered as 43 of 2015. The said Dispute Application
No.43 of 2015 was filed by Shri. Somnath Bhagwat challenging the
Motion of No Confidence passed against the Sarpanch and Upa-Sarpanch.
In the said Dispute Applications the principal contention raised was that
the notice dated 02/09/2015 of the meeting was not served upon the
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Respondent No.1 and therefore the Respondent No.1 to each of the above
Petitions could not attend the meeting and in view thereof they could not
address the house prior to the Motion of No Confidence being taken up for
consideration.
4. The said Dispute Applications were opposed to on behalf of
the Petitioners to the above Petitions. The opposition was on the ground
that the Petitioners were required to move the said resolution on account
of the manner in which the Sarpanch and Upa-Sarpanch were functioning.
That the said resolution was passed by a majority of 14:0. In so far as the
service of notice is concerned, the Petitioners averred in their replies that
the notices were served on the adult member available in the house as the
Sarpanch and Upa-Sarpanch were not found at their residence at the time
of service. In so far as Respondent No.1 Shri. Somnath Bhagwat is
concerned, the said notice was personally served upon him and therefore
there was compliance of the rules in the matter of service. It was also
contended that in view of the fact that almost 90% of the members being
against the Sarpanch and Upa-Sarpanch, the functioning of the said Gram
Panchayat is affected and therefore Motion of No Confidence passed
against the Respondent No.1 to each of the above Petitions should not be
interfered with.
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5. The Additional Collector, Niphad, District Nashik adjudicated
upon the said Dispute Applications and by the impugned order dated
02.11.2015 allowed the Dispute Applications and set aside the Resolution
of the Motion of No Confidence passed against the Sarpanch and Upa-
Sarpanch. The gist of the reasoning of the Additional Collector was that
the meeting dated 05.09.2015 wherein the said Motion of No Confidence
was passed was not legal and valid for the reason that the notice of the
meeting was not served on the Sarpanch, the Upa-Sarpanch and the
member Shri. Somnath Bhagwat i.e. the Applicants before him. That
though the acknowledgement of the members having received the notice
has been filed, the said acknowledgment does not bear the date, as to
when the members have received the notice, nor the Panchanama gives
the time when it started and ended. That the said notice has not been sent
to the Zilla Parishad, Panchayat Samiti, Collector and Divisional
Commissioner and that the said notice is not published on the notice
board of the Gram Panchayat and the Tahsil office, that there is a violation
of Rule 17 of the meeting rules in as much as the motion was not
proposed and seconded and in terms of the judgment of the Full Bench in
Vishwas Pandurang Mokal V/s Group Gram Panchayat, Shihu and
others1 prior to the motion being moved there has to be a compliance of
Rule 17. The Additional Collector, Nashik accordingly allowed the Dispute
1 2011(3) Mh.L.J. 500.
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Applications No.42, 43 and 45 of 2015 and set aside the Motion of No
Confidence passed against the Sarpanch and Upa-Sarpanch. As indicated
above, it is the said orders all dated 02.11.2015 which are taken exception
to by way of the above Petitions.
SUBMISSIONS ON BEHALF OF THE PETITIONERS OF THE
LEARNED COUNSEL MR. P. N. JOSHI
I) That the Additional Collector had erred in allowing the dispute
application filed by the Respondent No.1 in each of the above Petitions on
the grounds mentioned in the impugned order.
II) That the Additional Collector had erred in holding that service was
not effected on the Respondent when the material on record indicates the
compliance of the relevant rule.
III) That assuming that there was some irregularity in the service of
notice, however the Additional Collector ought to have seen that there was
substantial compliance with the Rule governing the service of notice.
IV) That the dispute application could not have been allowed on the
ground that there was non-compliance of Rule 2(2) in the matter of the
notice for requisition not being served on the Zilla Parishad, Panchayat
Samiti, Collector and the Commissioner, as the said Rule is held to be
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directory by this Court. Reliance is sought to be placed on the judgment of
a Learned Single Judge of this Court in the matter of Yamunabai Laxman
Chavan & others Vs. Sarubai Tukaram Jadhav & others2.
V) Even Rule 7 of the meeting Rules has been held to be directory by a
Learned Single Judge of this Court. Reliance is placed on the judgment in
the matter of Punjaji Shamrao Kadam and others Vs. Divisional
Commissioner, Aurangabad and others3.
VI) That the dispute application could not have been allowed for
violation of Rule 17 as the said Rule is also held to be directory. Reliance is
placed on the Full Bench judgment of this Court in the matter of
Tatyasaheb Ramchandra Kale Vs. Navnath Tukaram Kakde & ors4.
VII) In the instant case since the Motion of No Confidence is passed by a
majority of 14:0 the said aspect assumes importance and therefore on a
technical ground the Motion ought not to have been nullified.
VIII) That in view of the fact that a majority i.e. 14 members were against
the Respondent No.1 who are the Sarpanch and Upa-Sarpanch, the
functioning of the Gram Panchayat is seriously affected and therefore the
2 2004(Supp.2) Bom.C.R. 1031
3 2012(6) Mh.L.J. 463.
4 2014(6) Bom.C.R. 737.
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said fact was also a relevant consideration whilst adjudicating upon the
Dispute Applications.
SUBMISSIONS ON BEHALF OF THE RESPONDENT NO.1 IN
EACH OF THE ABOVE PETITIONS BY THE LEARNED COUNSEL MR. S.
K. SHINDE.
A) That the service of notice assumes importance in view of the fact
that on the notice being served the Sarpanch and Upa-Sarpanch can
remain present in the meeting called for considering the Motion of No
Confidence and address the house and therefore in the absence of the
notice being served the said right is affected.
B) The notice would have to be served in the manner/modes
contemplated and there can be no deviation. Reliance is sought to be
placed on the judgment of a Learned Single Judge of this Court in the
matter of Suresh Devidas Choudhari & Ors. Vs. Additional Collector
Washim & Ors.5.
C) That the notice could be served on the adult member of the family
only after the attempt to serve the same on the Respondent No.1 had
failed. In the instant case, no such material is placed on record in respect
of the attempt made to serve the notice on the Respondent No.1 in each of
5 2016(2) ALL MR 797
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the above Petitions.
D) That assuming the notice was served on 02.09.2015 on the
Respondent No.1 to each of the above Petitions since the meeting was to
be held on 05.09.2015, the said notice was not of three clear day's and
therefore was in violation of the statutory mandate.
E) That there are inherent contradictions in the case of the
Respondents i.e. the authorities in so far as the service of notice is
concerned, in as much as the Talathi in his affidavit has stated that the
notice on all the members of the Gram Panchayat were served on
02.09.2015, whereas the Tahsildar in his affidavit states that the notice
was served on 03.09.2015, therefore no credence could be given to the
case of the Respondents i.e. the authorities.
CONSIDERATION
6. Having heard the Learned Counsel for the parties, I have
considered the rival contentions. The controversy in the instant Petitions
has arisen in view of the Motion of No Confidence passed against the
Respondent No.1 in Writ Petition No.12009 of 2015 being the Sarpanch
and the Respondent No.1 in Writ Petition No.12010 of 2015 being the
Upa-Sarpanch. Since the said Motion of No Confidence is set aside by the
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Additional Collector on the ground of the notice being not served on the
Respondent No.1 the aspect of service of the notice of the meeting of the
Gram Panchayat to consider the passing of the Motion of No Confidence
has therefore once again engaged the attention of this Court in its writ
jurisdiction.
7. Since the Motion of No Confidence is passed against the
Sarpanch and Upa-Sarpanch, the relevant statutory provisions in the
context of the challenge raised in the instant Petitions would have to be
noted. It would therefore be useful to make a reference to Section 35, Rule
7 and 17 of the Bombay Village Panchayat Meeting Rules 1958 and Rule
(2-B) of the No Confidence Meeting Rules 1975. The same are reproduced
hereinunder for the sake of ready reference :-
"35. Motion of no confidence.- [(1) A motion of no
confidence may be moved by not less than [one-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 against the Sarpanch or the Upa-Sarpanch after
giving such notice thereof to the Tahsildar as may be
prescribed. [Such notice once given shall not be
withdrawn].
(2) Within seven days from the date of receipt by him of
the notice under sub-section (1), the Tahsildar shall
convene a special meeting of the Panchayat for considering
the motion of no confidence at the office of the Panchayat
at a time to be appointed by him and he shall preside over
such meeting. At such special meeting, the Sarpanch, or the
Upa-Sarpanch against whom the motion of no confidence is
moved shall have a right to speak or otherwise to take part
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in the proceedings at the meeting (including the right to
vote).
(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 the 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
meeting of the panchayat:]
[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
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may be, 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, 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 the date of
such special meeting].
(3-B) If the Sarpanch or, as the case may be, the Upa-
Sarpanch desires to dispute the validity of the motion
carried under sub-section (3), he shall, within seven days
from the date on which such motion was carried, refer the
dispute to the Collector who shall decide it as far as
possible, [within thirty days from the date on which it was
received by him and his decision shall be final]."
(3-C) Any person aggrieved by the decision of the
Collector may, within seven days from the date receipt of
such decision, appeal to the Commissioner who shall decide
the Appeal, as far as possible, within fifteen days from the
date on which the appeal is received by him, and any such
decision shall be final.
(3-D) Where on a reference made to him under sub-
section (3-B), the Collector upholds the validity of the
motion carried under sub-section (3) and no appeal is
made by the Sarpanch or the Upa-Sarpanch under sub-
section (3-C) within the limitation period specified in that
sub-section, or where an appeal is made under sub-section
(3-C) but it is rejected by the Commissioner, the Sarpanch
or, as the case may be, the Upa-Sarpanch shall cease to
hold office, in the former case, immediately after the expiry
of the said limitation period and, in the latter case,
immediately after the rejection of the appeal, and
thereupon the office held by such Sarpanch and Upa-
Sarpanch shall be deemed to be vacant].
(4) In cases where the offices of both the Sarpanch
and Upa-Sarpanch become vacant simultaneously, the
District Village Panchayat Officer or such other officer as he
may authorise in this behalf 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 meeting of the panchayat."
"[7. Every notice under these rules shall, if practicable, be
served personally by delivering or tendering it to the
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member to whom it is addressed or such person is not
found, by giving or tendering it to an adult male member of
his family who is residing with him]. [If there is no such
person to whom notice can be give 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. 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.]"
"17. (1) A member who has given notice of a motion shall,
when called on, either,-
(a) state that he does not wish to move the motion,
or
(b) move the motion in which case he shall
commence his speech by a formal motion in the
terms appearing on the list of business, after the
motion is duly seconded.
(2) If a member when called is absent, any other member
may, with the permission of the person presiding, move the
motion standing in the name of the absent member. if
permission is not granted to the other member to move the
motion, the motion shall lapse."
"(2-B) Every notice under sub-rule(1), wherever it may be
practicable, be served by delivering or tendering it to the
Sarpanch or Upa-Sarpanch to whom it is addressed or,
where such person cannot be found, by delivery or
tendering it to any adult member of his family residing with
him; and if no such adult member can be found or, where
the Sarpanch, Upa-Sarpanch or such adult member, as the
case may be, 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
such Sarpanch or Upa-Sarpanch ordinarly dwells. The
notice served in this manner shall be deemed to the served
or tendered or delivered to the concerned Sarpanch or Upa-
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Sarpanch.]."
A reading of Section 35 of the said Act discloses that considering the
importance of the post of Sarpanch and Upa-Sarpanch the legislature has
provided inbuilt safeguards in the matter of their removal. In so far as the
passing of Motion of No Confidence is concerned, the first safeguard is
that the requisition for a meeting has to be moved by not less than 1/3 of
the members of the Gram Panchayat who are entitled to sit and vote. The
second safeguard is that the resolution has to be passed by 2/3 of the
members who are entitled to sit and vote. The underlying principle
appears to be to lend stability in so far as the posts of Sarpanch and Upa-
Sarpanch are concerned.
8. In so far as Rule 7 of the Meeting Rules 1958 is concerned, it
sets out the manner in which a notice is required to be served under the
said Rules. It postulates that a notice to be served personally by delivering
or tendering it to a member to whom it is addressed or if the person is not
found by giving it or tendering to an adult member of his family who is
residing with him. Similarly Rule (2-B) of the Motion of No Confidence
Rules 1975 sets out how a notice requisitioning a meeting for passing a
Motion of No Confidence is required to be served. The said Rule postulates
that notice is to be tendered to the Sarpanch or Upa-Sarpanch and if such
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person cannot be found by tendering it to any adult member of his family.
In so far as Rule 17 of the General Meeting Rules is concerned, it provides
for a motion to be proposed and seconded. In so far as the said Rule 17 is
concerned, a Full Bench of this Court in Tatyasaheb Ramchandra Kale's
case (supra) has held the said Rule to be directory meaning thereby that a
strict compliance of the said rule is not necessary and that a Motion of No
Confidence cannot be nullified on the ground that there is no compliance
of the said Rule 17.
9. It is in the background of the aforesaid statutory position that
the facts of the instant case would have to be seen. In the instant case, the
Petitioners made a requisition to the Tahsildar vide their letter dated
02.09.2015 for requisitioning a meeting of the Gram Panchayat to
consider passing of a Motion of No Confidence against the Sarpanch and
the Upa-Sarpanch. The Tahsildar on receipt of the requisition convened a
meeting on 05.09.2015 for the said purpose and issued notices
accordingly. In so far as the Sarpanch and Upa-Sarpanch are concerned,
the notice on them was sought to be served on 02.09.2015 on which day
the notices were served on all members of the Gram Panchayat which
include the Petitioners above named. Since the Sarpanch and Upa-
Sarpanch were not available the notice was served on the adult member
who was available in the house and was also pasted on the door of their
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houses. In so far as the Respondent No.1 in Writ Petition No.12011 of
2015 is concerned, the said notice was served on him personally. The
meeting for considering the Motion of No Confidence was thereafter held
on 05.09.2015 and the motion was passed with a majority of 14:0. There
is absolutely no dispute about the fact that a requisition was made by a
majority of 1/3 of the members of the Gram Panchayat that the Motion of
No Confidence was passed by a majority of 14:0. After the Motion of No
Confidence was passed dispute applications were filed by the Respondent
No.1 in each of the above Petitions and as indicated above, the said
dispute applications were allowed principally on four grounds which are
mentioned in the impugned order. The gist of the four grounds is as
under :-
i) The acknowledgment does not bear the date when the
members received the notice nor the Panchanama gives the
time when it started and ended.
ii) Notice is not served on the Respondent No.1 in each of
the above Petitions.
iii) Notice not furnished by the Tahsildar to the Zilla
Parishad, Panchayat Samiti, Collector and the Divisional
Commissioner.
iv) Rule 17 of the meeting Rules not followed in as much
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as the motion was not proposed and seconded.
Taking the last ground first, the Additional Collector found
fault with the process in passing of the Motion of No Confidence against
the Sarpanch and Upa-Sarpanch on the ground of the same being not
proposed and seconded and in support thereof relied upon the Full Bench
judgment of this Court in Viswas Pandurang Mokal's case (supra). In so far
as the judgment of the Full Bench in Vishwas Pandurang Mokal's case
(supra) is concerned, the issue before the Full Bench was as regards the
applicability of the meeting rules to a meeting held for passing of a Motion
of No Confidence and not whether Rule 17 of the Meeting Rules was
directory or mandatory. As indicated above, the Full Bench of this Court in
Tatyasaheb Ramchandra Kale's case (supra) wherein reference was
precisely made to consider whether Rule 17 is directory or mandatory held
that Rule 17 was directory and strict compliance thereof was not
necessary. In view of the authoritative pronouncement of the Full Bench in
Tatyasaheb Ramchandra Kale's case (supra) the said ground looses its
force.
10. In so far as the third ground is concerned, that the notices are
required to be served on the Zilla Parishad, Panchayat Samiti, Collector
and the Revenue Commissioner in terms of Rule 2(2) of the Rules. A
Learned Single Judge of this Court in Yamunabai Laxman Chavan's case
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(supra) has held that omission to comply with Sub Rule (2) of Rule 2 will
not vitiate the resolution passed in pursuance of the notice issued by the
requisitionist. The Learned Judge has further held that the role of the
Authorities mentioned in the said Rule only comes in after the Motion of
No Confidence is passed, hence the said ground also looses its force. Even
Rule 7 of the Meeting Rules has been held to be directory by a Learned
Single Judge of this Court by the judgment in Punjaji Shamrao Kadam's
case (supra).
11. Now coming to the second ground as mentioned above that
the notice was not served on the Respondent No.1 in each of the above
Petitions. On behalf of the Respondent Authorities, an affidavit has been
filed by one Sandip Balasaheb Aher who is the Tahsildar Niphad. To the
said affidavit is annexed the affidavit of the Talathi as also the
Panchanamas in respect of the notice being served on the Sarpanch and
Upa-Sarpanch. In the said affidavit, it has been stated by the Tahsildar that
the Talathi, Kasbe Sukene, Taluka Niphad has served the notice of the
Motion of No Confidence meeting on 03.09.2015 on all the 17 members.
In so far as the Sarpanch is concerned, it is stated that at the time of
service of notice the Sarpanch was not available at her residence,
therefore, the Talathi served the copy of the notice on the adult member
i.e. her nephew one Ajit Sanjay Thete who was available and also affixed a
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copy of the notice on the outer door of her house and accordingly has
drawn Panchanama. In so far as the Upa-Sarpanch is concerned, it is
stated that the Upa-Sarpanch was not available at the time of the service
of the notice and the notice was therefore served on an adult member i.e.
his sister Sunita Shivaji Pagare who said that it may be given to her and
she has also signed in acknowledgment of the same. The notice was also
affixed on the outer door of his house. In so far as the Talathi, Santu
Tryambak Gaike is concerned, it is stated by him in his affidavit that the
notice of the Motion of No Confidence was served upon all the 17
members on 02.09.2015 and in so far as the Respondent No.1 in Writ
Petition No.12011 of 2015 Shri. Kishor Balasaheb Kardak i.e. the Upa-
Sarpanch is concerned, it is stated by the Talathi that the said notice was
served upon his sister. As indicated above, to the said affidavit of the
Talathi is annexed the Panchnama dated 03.09.2015 as also the report
sent by the Talathi to the Tahsildar which is also dated 03.09.2015. The
Panchnama discloses what has been stated in the affidavit by the Tahsildar
namely that since the Sarpanch and Upa-Sarpanch were not available it
was served on the adult members and also affixed on the outer door of
their houses. The Sarpanch and Upa-Sarpanch have denied that the
persons on whom the notices were served on their behalf are either their
relations or that they are staying in the said village. However the said
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contention of the Sarpanch and Upa-Sarpanch is not convincing. The fact
however remains that the said notice was also pasted on the outer door of
their houses.
12. In so far as the first ground is concerned, it is required to be
noted that except the Applicants i.e. the Respondent No.1 to each of the
above Petitions all others have received the notice. The Applicant Shri.
Somnath Bhagwat as indicated above has been served with the notice
personally, however he has also not remained present in the meeting dated
05.09.2015 along with the Sarpanch and Upa-Sarpanch, hence where his
loyalties lie is clear from the said fact. It is too much of a coincidence that
the three persons who are on one side have not received the notice and
therefore did not remain present in the meeting held on 05.09.2015. In
my view, in the light of the affidavit of the Talathi and the Tahsildar, there
is no room for doubt that the notice was served on all the members on
02.09.2015. In so far as the Panchanama is concerned, the Additional
Collector has taken a hyper-technical view, when the Panchanama records
all that was required to be recorded in respect of the service of notice on
the Sarpanch and Upa-Sarpanch. In my view, therefore, there is no
substance also in the first ground.
13. It is not possible to accept the contention urged by the
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Learned Counsel appearing for the Respondent No.1 that it is only after
the notice cannot be served on the person personally that the other modes
could be resorted meaning thereby that there has to be a time lag between
the first stage and the second stage of adopting the other modes. It is
required to be noted that the holding of a meeting of Motion of No
Confidence in the light of the statutory mandate of holding of the meeting
within seven days of the requisition assumes urgency and therefore the
procedure as suggested by the Learned Counsel appearing for the
Respondent No.1 cannot be followed. In any event, Rules do not
contemplate such a procedure and the concerned Rule contemplates that if
the person is not found then the same can be served on an adult member
of the family. In so far as the discrepancy in the dates in the affidavit of the
Tahsildar and the Talathi are concerned, in my view, much importance
cannot be attached to the same as the Talathi had submitted his report to
the Tahsildar on 03.09.2015 and the Tahsildar has therefore in his
affidavit has mentioned the date of service as 03.09.2015 instead of
02.09.2015 and therefore the same is merely a mistake.
14. In so far as the contention of the Learned Counsel for the
Respondent No.1 that the notice ought to have been served on an adult
male member in terms of Rule 7 and therefore the notice served on the
sister of the said Shri. Kishor Balasaheb Kardak cannot be said to be good
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service, in my view is misconceived. Though Rule 7 postulates service on a
adult male member. However Rule (2-B) of Motion of No Confidence
Meeting Rules postulates that if the person is not found the notice can be
served on a adult member of the family. Since the No Confidence Meeting
Rules are special rules applicable to a meeting held for passing of a Motion
of No Confidence, it is the said Rule (2-B) that would have to be applied
and not Rule 7 which is part of the general meeting rules. In any event
assuming that the notice has been served on a adult member the same can
only be a irregularity and cannot vitiate the Motion of No Confidence.
15. In so far as the contention of the Learned Counsel for the
Respondent No.1 that the notice was not of three clear days assuming that
the notice is served on 02.09.2015 and the meeting being held on
05.09.2015, in my view, since the notice was served on 02.09.2015 and
since the meeting was held on 05.09.2015, there was clear three days
notice, assuming that the notice period was short the same can be a mere
irregularity and would not vitiate the proceedings. A useful reference
could be made to the judgment of a Learned Single Judge of this Court in
the matter of Prabhawati Vijaykumar Khivsara V/s State of
Maharashtara and others6. In the said case, a Learned Single Judge
relied upon the judgment of the Apex Court in 1964 DGLS 116 (soft),
6 2008(3) BCR 755
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wherein the Apex Court held that merely because some Councilors had
received less than three days notice, the same did not vitiate the
proceedings, held that the same is merely an irregularity and would not
vitiate the proceedings relating to the passing of the Motion of No
Confidence.
16. In the instant case, it is required to be noted that the record
discloses that the Sarpanch and Upa-Sarpanch were not found when the
notice was sought to be served on them at their residence and therefore it
was served on an adult member available at the time of service. Hence, in
my view, there is a substantial compliance of Rule (2-B) and therefore it
cannot be said that the outcome of the meeting has to be nullified on the
said ground.
17. The said aspect has to be looked at another angle. It is
required to be noted that the Motion of No Confidence was to be passed
against the Sarpanch and Upa-Sarpanch. The importance of the said post
to the villagers cannot be in doubt. The Sarpanch and Upa-Sarpanch can
be said to be the first citizens in so far as the village is concerned. Hence,
when a Motion of No Confidence is moved against a Sarpanch and Upa-
Sarpanch, the same would obviously be the talk of the entire village and
therefore it is impossible to believe that the Respondent No.1 in each of
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the above Petitions was not aware of the meeting to be held on
05.09.2015 and therefore did not remain present. The same is also
required to be considered in the background of the fact that the other 14
members out of the total 17 members have been served on 02.09.2015.
When such a large number of members have been served with the notice,
it is not possible to accept the case of the Sarpanch and Upa-Sarpanch that
they were not aware of the meeting dated 05.09.2015. It is possibly seeing
the writing on the wall, where an overwhelming majority of the members
is against them that the Respondent No.1 in each of the above Petitions
did not choose to remain present and therefore their absence cannot be
attributed to the non-service of notice on them as is sought to be made out
by them.
18. It is also required to be noted that the Sarpanch and Upa-
Sarpanch are the pivots around which the village administration runs. In
the instant case, as indicated above, as many as 14 members of the Gram
Panchayat had requisitioned the meeting and had passed the Motion of No
Confidence against the Sarpanch and Upa-Sarpanch. The functioning of
the Gram Panchayat is therefore adversely affected and there is sufficient
reason to believe that in view of the estrangement between the parties,
there is virtually no administration in the village. The Gram Panchayats
are the symbols of the local self government at the village level and
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therefore a situation where the functioning of the Gram Panchayat has
virtually come to a stand still, cannot be allowed to continue. The essence
of democracy is that the persons who have lost the confidence of the
majority have to go. In my view, since there is a substantial compliance in
respect of the service of the notice on the Respondent No.1 in each of the
above Petitions and since there is no substance in the other grounds on
which the impugned order is based. The Motion of No Confidence in the
facts of the present case cannot be nullified on a technicality.
19. For the reasons aforestated the impugned orders dated
02.11.2015 passed by the Additional Collector, Nashik would have to be
quashed and set aside and are accordingly quashed and set aside. The
Dispute Applications being Nos.42, 42 and 45 of 2015 filed by the
Respondent No.1 in each of the above Petitions would stand dismissed.
The above Writ Petitions are accordingly allowed. Rule is accordingly
made absolute in the aforesaid terms, with parties to bear their respective
costs.
[R. M. SAVANT, J]
After Pronouncement of Judgment:-
1. At this stage, the Learned Counsel for the Respondent No.1 in
each of the above Petitions seek stay of the instant order. The Learned
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Counsel appearing for the Petitioners opposes the same. In the facts and
circumstances of the present case, the instant order is stayed for a period
of six weeks.
[R. M. SAVANT, J]
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