Bombay High Court
Jijabai Bahiru Tatale And Ors vs Raghunath Ramchandra Avhad And ... on 23 September, 2016
Bench: R.M. Borde
Shivgan 1/9 Judgment.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.10619 OF 2016
1. Jijabai Bahiru Tatale
Age Major, Occ Agriculture
2. Bhimabai Balu More
Age Major, Occ. Agriculture
3.Pandrinath Shankar Varungase
Age Major, Occ. Agriculture
4.Ratana Kailash Varungase
Age Major, Occ. Agriculture
5. Tarabai Harishchandra Varungase
Age Major, Occ. Agriculture
6.Valu shravan Tatale
Age Major, Occ. Agriculture
(1 to 6 members of Gram Panchayat
All R/o Belgaon Tarhale
Tal. Igatpurti Dist. Nashik) ... Petitioners
Versus
1 Raghunath Ramchandra Avhad
Age Major, Occ. Agriculture
R/o. Belgaon Tarhale
Tal.Igatpuri Dist. Nashik
2. Lalita Laxman Bendkoli
Age Major, Occ. Household
r/o. Belgaon Tarhale
Tal. Igatpuri Dist. Nashik
3. Ramu Arjun Tatale
Age Major, Occ. Household
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Shivgan 2/9 Judgment.doc
R/o. Belgaon Tarhale
Tal. Igatpuri Dist. Nashik
4. The Collector Nashik
5. The Tahsildar, Igatpuri, Dist Nashik
6. The Gram Sevak, Gram Panchayat
Belgaon Tarhale, Tal. Igatpuri Dist. Nashik
7. The State of Maharashtra
(to be served through AGP Bombay High Court
Mumbai-400 032 ...Respondents
.....
Mr.Rameshwar N. Gite, Advocate for the Petitioner.
Mr.Pratik B. Rathod i/b Mr. Pramod Narayan Joshi, Advocate for
Respondent No.1.
Mr. Sachin Kankar, AGP for the State.
ig .....
CORAM : R.M. BORDE, J.
RESERVED ON : 22ND SEPTEMBER, 2016
PRONOUNCED ON: 23RD SEPTEMBER, 2016
Oral Judgment :
. Heard.
2 Rule.
3 With consent of the parties, the Petition is taken up for final
disposal at the admission stage.
4 The Petitioners, who are the members of the Village Panchayat
Belgaon Tarale, Taluka: Igatpuri, District: Nashik are objecting to the order
Shivgan 3/9 Judgment.doc
passed by the Additional Collector, Nashik in Dispute No.41 of 2016
decided on 26.8.2016. The Respondent No.1 was elected as Upa-Sarpanch
of Village Panchayat in the year 2014. A motion for expressing 'No
Confidence' on the Respondent No.1 was moved on 22.6.2016 by 6
members of Village Panchayat out of total strength of 9 members. A special
meeting for consideration of the motion was convened by the Tehsildar,
which was scheduled to take place on 28.6.2016. In the meeting held on
28.6.2016, the motion of 'No Confidence' was passed against the
Respondent No.1 by majority 6 members voting in favour of the motion of
'No Confidence' out of 7 members present at the meeting. The decision
taken in the meeting dated 28.6.2016 expressing 'No Confidence' against
the Respondent No.1 was a matter of challenge in a dispute presented by
the Respondent No.1 before the Additional Collector under Section 35(3B)
of the Maharashtra Village Panchayat Act, 1958. The principal objection
raised by the Respondent No.1 is as regards the failure to serve the notice
of meeting to Shrimati Lalita Laxman Bendkoli. According to the
Respondents, the concerned member was not served with notice and as
such, proceedings of the meeting are vitiated. The learned Deputy
Colllector accepted the contention raised by the Respondent No.1 and
directed the quashing of the proceedings of the meeting dated 28.6.2016. It
is the contention of the Petitioner that infact the concerned member
Shrimati Lalita was served with notice of meeting. Since Smt. Lalita was
not present at the time when notice was sought to be served and her
mother-in-law Smt. Kalubai Bendkoli, who was present at the residence
directed nephew of Lalita by name Madan Baburao Bendkoli to accept the
notice, the same was accepted by him. It is contended that since the notice
has been accepted by the adult member of the family of Smt. Lalita, there is
Shivgan 4/9 Judgment.doc
no illegality or infirmity in the service of notice. It is the contention of the
Petitioner that majority members have expressed 'No Confidence' in
Respondent No.1 and as such, he has no entitlement in continuing to
occupy the office. It is pointed out by the learned counsel appearing for the
Respondent No.1 that since the proceedings in respect of service of notice
records name of the concerned member as Lalita Laxman Tatale and the
notice is said to have been accepted by Madan Baburao Bendkoli, it is
contended that in fact, notice has not been served on Smt. Lalita. The letter
of Talathi issued to Tehsildar dated 30.8.2016 placed on record at Page 42
of this Petition compilation was infact not brought on record before the
Additional Collector, who dealt with the dispute. The dispute was decided
by the Additional Collector on 26.8.2016 and the letter has been procured
from Talathi on 30.8.2016, which is after thought. It is the contention of
the Respondent that there is no record to demonstrate service of notice on
Smt. Lalita. It is also contented that there is no record also to indicate that
notice of service was affixed on the door of the residential premises of the
concerned member to draw an inference in respect of proper service of
notice.
5 Talathi of village has reported that the notice was infact served
on adult member in the family of Smt. Lalita. There appears to be some
error in recording surname of Lalita Laxman Bendkoli. In the Report
annexed at Page 45, surname is written as Tatale, which appears to be
typographical mistake. In this Court, an affidavit has been presented on
behalf of Lalita Laxman Bendkoli recording therein that she is not in receipt
of notice of meeting and that she is not related to any person by name
Madan Baburao Bendkoli, who is erroneously claimed to be a member of
Shivgan 5/9 Judgment.doc
the family. It has not been disclosed in the Petition as to whether alternate
mode of service I.e. affixing the notice on the entrace of the house premises
is adopted. The Additional Collector in his order has also not referred as to
whether such mode of service of notice as prescribed under the relevant
Rules has been adopted or not. Looking to the report of Talathi dated
30.8.2016, it does appear that there is a service of notice on the adult
member of the family. The stand taken by the concerned member by
presenting an affidavit in this Court also does not appear to be convincing.
Since the disputed question is raised in respect of service of notice on one
of the members i.e. Lalita Bendkoli, it is desiratble that the matter be
enquired into by the Additional Collector afresh. If the Additional Collector
concludes in respect of proper service of notice either on the adult member
of the family or service of notice by adopting an alternate mode of service
as prescribed in rules i.e. affixing notice on the entrance door of the
residential premises of the concerned member, service of notice shall be
construed to be proper. It would be for the Additional Collector to look into
the matter.
6 The learned counsel appearing for the Petitioner placed
reliance upon the judgment in the matter of Annapurnabai Ajabrao v.
Annapurnabai Anandrao reported in 1967 Mh.L.J. NOC Page 36 and
contended that since A Gram Panchayat is essentially a democratic
institution, which must be run on democratic principles and as the majority
members have expressed lack of confidence in the Respondent No.1, he
shall vacate the office. The relevant observations of Annapurnabai
(Supra) are quoted as below:
Shivgan 6/9 Judgment.doc
"9. This being the general provisions of law, the form
of notice prescribed by sub-rule (2) of Rule 2 of the Rules
should be construed as directory and not mandatory.
Omission to specify grounds for moving motion of no
confidence or error in typing of the verification clause
would not by itself invalidate the notice under sub-section
(1) of section 35 of the Act. While interpreting the
provisions of section 35 of the Bombay Village Panchayat
Act, the Division Bench of this Court in (Smt.
Annapurnabai Ajabrao v. Smt. Annapurnabai Anandrao)
3, reported in 1967 Mh. L. J. N.O.C. 36 held;
"The Gram Panchayat is essentially a democratic
institution which must be run on democratic principles.
When the majority of the members have clearly expressed
that they do not desire the petitioner to be their leader and
Sarpanch, the proper attitude of the petitioner as a person
working for democracy would have been to tender her
resignation straightway. At any rate, it does not behave of a
democratic spirit to challenge the decision of the majority
who unmistakably declared their want of confidence in their
erstwhile leader. Democratic principles as also the sense of
self-respect should have impelled the petitioner and persons
situated in similar circumstances to gracefully submit to the
decision of the majority and to walk out of the Gram
Panchayat instead of raising frivolous contentions and
forcing herself on the democratic institution which does not
want her to hold that position."
7 Similarly in the matter of Nimba Rajaram Mali v. Collector,
Jalgaon & Others reported in 1999 BCR Page 546, the Division Bench has
observed as quoted below:
"10. In the present case resolution against the respondent
No.4 was passed by 2/3 majority of 10 out of 15 members.
Respondent No.4 should have therefore, gracefully walked
out, instead she has chosen to challenge the resolution on
technical grounds which is contrary to the observations
made by this Court in the case of Annapurnabai Ajabraos
referred to supra. The decision of the Division Bench in
Shivgan 7/9 Judgment.doc
Annapurnabai Ajabraos case was followed by another
Division Bench of this Court in the case of ( N. R. Mali v.
Collector, Jalgaon)4, reported in 1999(1) Bom. C.R. (A.B.)
546 : 1998(3) Mh. L. J. 204 : A. I. R. 1999 Bombay 335. In
the said case, it was observed:
" Once the resolution of no confidence is passed by clear
majority and keeping in mind the requirements of the
concerned statutory provisions, the person against whom
such a resolution is passed, must honour the will of the
majority and make way for new election of successor. Unless
it is shown that while passing such a resolution of no
confidence motion, there was flagrant violation of any
mandatory procedure laid down. Such a resolution cannot
be interfered with by the Court or Statutory authorities
attacking such disputes."
It is, thus, contended that since 6 members out of total
strength of 9 members have expressed lack of confidence in the
Respondent No.1, he shall vacate the office gracefully. At the same time,
mandatory requirements of service of notice on the members of Village
Panchayat has to be looked into. If there is no proper service of notice on
any of the members, the motion of 'No Confidence' gets vitiated and as
such, the proceedings of the meeting cannot be said to be proper and in
accordance with the provisions of law. In this regard, the reliance can be
placed on the judgment in the case of Suresh Devidas Choudhari v.
Additional Collector Washim reported in 2016(2) All M.R.797. It is also
contended by the Petitioner that the requirement of service of notice within
contemplation of Rule 2B of the Bombay Village Panchayats Sarpanch and
Upasarpanch (No Confidence Motion) Rules, 1975 shall not be considered
mandatory and every deviation from the procedure prescribed under the
Rules shall not vitiate proceedings of the 'No Confidence' motion. By
referring to the judgment of the Full Bench in the matter of Tatyasaheb
Shivgan 8/9 Judgment.doc
Ramchandra Kale v. Navnath Tukaram Kakde & Others reported in 2014
(6) Mh.L.J. Page 804, it is contended that since Rule 17 of the Bombay
Village Panchayats (Meeting) Rules, 1959 is held to be directory, by
application of similar analogy, the relevant rule requiring strict compliance
of the procedure in respect of service of notice also shall be deemed to be
directory. In the instant matter, question that has to be dealt with is as to
whether there was infact service of notice of motion of 'No Confidence' on
Smt. Lalita Bendkoli, member of Village Panchayat. If at all there is service
of notice on the concerned member, the motion shall be deemed to have
been carried. However, in the absence of service of notice on the concerned
member, conclusion shall have to be drawn that proceedings of the meeting
are vitiated as has been recorded above. The factual controversy as to
whether there was proper service of notice on Smt. Lalita Bendkoli is
required to be gone into afresh by the Additional Collector.
9 In view of discussion above, order impugned in this petition
passed by the Additional Collector, Nashik dated 26.8.2016 is quashed and
set aside and the matter stands remitted back to the Additional Collector,
Nashik for re-consideration. The Additional Collector, Nashik shall decide
the appeal as expeditiously as possible and preferably within a period of
four weeks from today after extending an opportunity of hearing to all the
parties concerned and on scrutiny of the record and on receiving evidence
that would be led by the parties, if any. Parties assure to cause appearance
before the Additional Collector, Nashik on 29.9.2016 and as such, no
separate notice requiring their presence before the Additional Colllector,
Nashik would be necessary.
Shivgan 9/9 Judgment.doc
10 Rule is made absolute to the extent specified above.
11 There shall be no order as to costs.
(R.M. BORDE, J.)
