Sumanbai Parbatrao Karhale And ... vs The District Collector And Others
2021 Latest Caselaw 10932 Bom

        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   BENCH AT AURANGABAD

                    WRIT PETITION NO. 8288 OF 2020

1.    Sumanbai W/o Parbatrao Karhale,
      Age : 62 Years, Occu. : Household,

2.    Anjanabai W/o Uttamrao Asale,
      Age : 58 Years, Occu. : H.H.,

3.    Dwarkabai W/o Ramchandra Karhale,
      Age : 52 Years, Occu. : H.H.,

4.    Renuka W/o Maroti Bhange,
      Age : 29 Years, Occu. : H.H.,

5.    Sambhaji S/o Narayan Karhale,
      Age : 49 Years, Occu. : Agril.,

6.    Vishwambhar S/o Sambhaji Narwade,
      Age : 33 Years, Occu. : Agril.,

7.    Samadhan S/o Shankar Asale,
      Age : 27 Years, Occu. : Agril.,

      All R/o. Kharab Dhanora, Tq. Palam
      Dist. Parbhani.                              ... PETITIONERS

               VERSUS

1.    The District Collector, Parbhani,
      Tq. & Dist. Parbhani.

2.    The Tahsildar,
      Palam, Tq. Palam,
      Dist. Parbhani.


wp8288.2020.odt                                                     1 of 23




     ::: Uploaded on - 17/08/2021           ::: Downloaded on - 26/09/2021 15:05:18 :::
 3.    The Gram Sevak,
      Gram Panchayat Office,
      Kharab Dhanora, Tq. Palam,
      District Parbhani.

4.    Ratnamala W/o Shankar Bhange,
      Age : 37 Years, Occu.: Agril. & H.H.,
      R/o Kharab Dhanora, Tq. Palam,
      Dist. Parbhani.                       ... RESPONDENTS

Shri. Hanmant V. Patil, Advocate for the petitioners
Shri. S. P. Sonpawale, AGP for respondent Nos. 1 and 2/State
Shri. Mahesh P. Kale, Advocate for respondent No. 4.

                                          CORAM : M. G. SEWLIKAR, J.

RESERVED ON : 27th July, 2021 PRONOUNCED ON : 12th August, 2021

JUDGMENT :-

1. Rule. Rule made returnable forthwith. At the stage

of admission, heard finally with the consent of the parties.

2. By this writ petition under Article 227 of the

Constitution of India petitioners are challenging the decision of

the learned District Collector, Parbhani in Appeal No. 2020/

GAD/VPE/02/CR-07 whereby resolution dated 27th August,

2020 passed in special meeting for no confidence motion is set

aside.

wp8288.2020.odt                                                            2 of 23





 .              Factual aspects can be stated succinctly as under:-

3. Petitioners are elected members of the village

panchyat Gram Kharab Dhanora, Taluaka Palam, District

Parbhani. Respondent No. 4 is the Sarpanch of village

Panchayat directly elected from the voters of the village. Gram

Kharab Dhanora, Tq. Palam consists of 7 members. General

elections of Gram Panchayat were held in December, 2017. In

that election petitioners were elected as members. Respondent

No. 4 was elected as Sarpanch directly through the voters of

the village.

4. It is further stated in the petition that functioning of

respondent No. 4 being Sarpanch was not proper. She never

took other members in confidence and did not carry out any

development work in the village. She did not hold monthly

meetings and Gramm Sabha meetings regularly. Husband of

respondent No. 4 had collected amount illegally from villagers

for sanctioning of schemes. Therefore, petitioners decided to

move motion of no confidence against respondent No. 4.

wp8288.2020.odt 3 of 23

Pursuant to that, petitioners submitted requisition under

Section 35 of the Maharashtra Village Panchayat Act (for short

'Panchayat Act') to learned Tahsildar-respondent No. 2 herein

on 21st August, 2020. This requisition was signed by all the 7

members i.e. all the petitioners.

5. It is further alleged that pursuant to the requisition,

respondent No. 2 convened a special meeting on 27th August,

2020. Respondent No. 2 issued notices to all the members i.e.

petitioners including respondent No. 4. Notices were served on

all the members of Gram Panchayat i.e. petitioners.

Respondent No. 4 got the knowledge of moving of no

confidence motion and to frustrate that, she got herself

admitted in the quarantine centre feigning that she had

suffered Covid-19. Since no one was available in the house,

notice was affixed on the house of respondent No. 4.

Therefore, notice was duly served on respondent No. 4. In the

meeting dated 27th August, 2020, all the petitioners were

present and the motion of no confidence was passed with

wp8288.2020.odt 4 of 23

absolute majority. All the 7 members cast vote in favour of the

resolution. This resolution has to be ratified by the Gram

Sabha. By notification dated 12th May, 2020 the State

Government had prohibited holding of Gram Sabha meetings

due to pandemic situation created by Covid-19. However, said

prohibition was lifted by letter dated 28th October, 2020.

6. Respondent No. 4 filed Writ Petition No. 6341 of

2020 in this Court challenging the resolution of no confidence

motion. This writ petition came to be disposed of by order

dated 21st September, 2020 on the ground that petitioners had

alternate efficacious remedy.

7. It is further alleged that respondent No. 4 filed

appeal under Section 35 (3-B) of the Panchayat Act with

application for condonation of delay.

8. It is further alleged that the learned District

Collector, Parbhani by the judgment and order dated 1st

wp8288.2020.odt 5 of 23

December, 2020 allowed the appeal and set aside the

resolution of no confidence dated 27 th August, 2020. This

decision is impugned in this writ petition.

9. Respondent Nos. 1 and 2 filed affidavit-in-reply.

They contended that on receipt of no confidence motion,

Tahsildar Palam (Respondent No. 2 herein) called a special

meeting of Gram Panchayat Kharab, Dhanora vide letter dated

21st August, 2020 and issued notices to all the members of

Gram Panchayat including respondent No. 4. Meeting was

scheduled on 27th August, 2020. Notice of the said meeting

was affixed on the house of respondent No. 4 on 25th August,

2020 as it was found that respondent No. 4 was not present in

the house at the time of service of the said notice. Accordingly,

panchanama was drawn. It is further contended that special

meeting was held in the office of Gram Panchayat on 27th

August, 2020. Respondent No. 4 was absent in the said

meeting. All the 7 members of the Gram Panchayat were

present in the said meeting. All 7 members cast their vote in

wp8288.2020.odt 6 of 23

favour of no confidence motion and accordingly no confidence

motion was passed by absolute majority against respondent

No. 4. Respondent No. 4, it was learnt, was quarantined in

quarantine centre of Tribal Ashram School at Palam on 24th

August, 2020 and was discharged on 27th August, 2020.

Medical Superintendent Class-I Rural Hospital, Palam had

issued a certificate to that effect on 1st September, 2020.

According to respondent No. 4, notice of the meeting was not

properly served on her and as she was quarantined she could

not attend the meeting. It is further contended that brother-in-

law of respondent No. 4 had tendered in application to the

Tahsildar on 25th August, 2020 mentioning therein that the

respondent No. 4 was quarantined and was unable to attend

the special meeting. The said notice could have been served

on the brother-in-law of respondent No. 4 if he staying with

respondent No. 4. Therefore, proper procedure for service of

notice on respondent No. 4 was not valid. It is further

contended that as required by the rules, special Gram Sabha

was not convened to ratify no confidence motion. Therefore, it

wp8288.2020.odt 7 of 23

cannot be said that resolution was validly passed.

10. It is further contended that after passing of no

confidence motion in the special meeting dated 27 th August,

2020, Gram Sevak informed the Block Development Officer,

Palam vide letter dated 18th September, 2020 that no

confidence motion was passed and the post of Sarpanch had

fallen vacant since 27th August, 2020. It is further contended

that the State Government in Rural Development Department

by circular dated 12th May, 2020 had temporarily stayed the

holding of Gram Sabha elections on account of pandemic

situation created by Covid-19. Vide letter dated 28 th October,

2020, Government clarified that holding of Gram Sabha in

addition to no confidence motion is mandatory in view of

Section 35 of the Bombay Village Panchayat Act. Therefore,

Gram Sabha was not held. For these reasons respondent Nos.

1 and 4 sought to dismiss the petition.

11.             Heard        Shri.   Patil,   learned     counsel          for     the



wp8288.2020.odt                                                                  8 of 23

petitioners, Shri. Mahesh Kale, learned counsel for respondent

No. 4 and learned AGP Shri. Sonpawale for respondents/State.

12. Shri. Patil, learned counsel for the petitioners

submitted that no confidence motion was validly moved. He

submitted that it was passed in the meeting dated 27th August,

2020 with full majority. All the 7 members voted in favour of

the motion. Accordingly, no confidence motion was passed. He

submitted that respondent No. 4 feigned of Covid-19 and got

herself admitted in quarantine centre. Medical Officer gave the

certificate that she was admitted in quarantine centre on 24 th

August, 2020 and she had no symptoms of Covid-19 and she

was discharged on 27th August, 2020. He submitted that

brother-in-law of respondent No. 4 had filed application on 25 th

August, 2020 for postponing the meeting as respondent No. 4

was quarantined on account of Covid-19. This letter itself

clearly shows that she had the knowledge of the meeting. He

submitted that the irregularity in service of notice cannot be of

any significance. He further submitted that learned Collector

wp8288.2020.odt 9 of 23

allowed the appeal on the ground that Gram Sabha meeting

was not held after passing of no confidence motion. Shri. Patil,

learned counsel submitted that it was the duty of the Tahsildar

to hold Gram Sabha meeting. It is not permissible for the

Deputy Collector to say that Gram Sabha meeting was not

held. He further submitted that appeal was hopelessly barred

by limitation. Deputy Collector is not a court within the

meaning of Limitation Act. Therefore, learned Deputy Collector

committed gross error in allowing the appeal and setting aside

no confidence motion.

13. Shri. Kale, learned counsel for respondent No. 4

submitted that respondent No. 4 was admitted in quarantine

centre on account of Covid-19. It is not that she got herself

admitted to defeat the resolution. She got herself admitted on

25th August, 2020 as she was suffering from Covid-19. He

submitted that mere passing of the resolution is not enough

but it has to be ratified by the villagers in Gram Sabha. Gram

Sabha meeting is not held till today. Therefore, it cannot be

wp8288.2020.odt 10 of 23

said that no confidence motion was legally passed. He further

argued that delay was caused because of choosing of wrong

forum. This itself is sufficient ground for condonation of delay.

Respondent No. 4 did not got herself quarantined feigning

illness. Her husband also was admitted in the same centre. He

argued that Supreme Court had extended the period of

limitation under the Limitation Act and other Acts on account

of Covid-19 situation. Therefore, there is no question of the

appeal being barred by limitation. Since Gram Sabha was not

held it cannot be said that no confidence motion was

legally passed. He, therefore, prayed for the dismissal of the

petition.

14. In terms of Rule 35 of the Maharashtra Village

Panchayat Act a motion of no confidence can be moved by not

less than 1/3 of the total number of the members entitled to

sit and vote at any meeting of the Panchayat against the

Sarpanch or the Upa-Sarpanch after giving notice to the

Tahsildar. Section 35 (1A) requires that motion of no

wp8288.2020.odt 11 of 23

confidence has to be accepted by 3/4 majority of the members

present at the meeting. Section 35 (1B) states that once

motion of no confidence is carried by majority of not less than

3/4 of the total number of members who are entitled to sit and

vote at any meeting of the Panchayat and ratified before the

special Gram Sabha by the secret ballot in the presence and

under the Chairmanship of the Officer appointed by the

Collector.

15. Therefore, the twin requirement of Section 35 is

that no confidence motion should be moved by 1/3 of the total

number of members, it has to be accepted by not less than

3/4 of the total number of members and it should be ratified

by the special Gram Sabha. Rule 2(2-B) of the Bombay Village

Panchayats Sarpanch and Up-Sarpanch (No Confidence

Motion) Rules, 1975 reads thus:

"2.(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

wp8288.2020.odt 12 of 23

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 ordinarily dwells. The notice served in this manner shall be deemed to be served or tendered or delivered to the concerned Sarpanch or Upa-Sarpanch."

16. Thus, this rule requires that service for notice of

meeting for no confidence motion shall be effected as far as

possible personally on the Sarpanch. If it is not possible then,

the requirement is that it should be served on any adult

member of the family. If no other member of the family is

present notice be served by substituted service by affixing

notice on conspicuous part of the house of the member of

Gram Panchayat.

17. In the case at hand Gram Panchayat Kharab

Dhanora consists of 7 members and Sarpanch is an elected

member. Motion of no confidence was moved by all the 7

members. Notice dated 21st August, 2020 was tried to be

wp8288.2020.odt 13 of 23

served on the respondent No. 4. However, according

respondent No. 4 she was quarantined on 24 th August, 2020

and therefore, respondent No. 4 was not available in the house

and therefore, notice was affixed on the conspicuous part of

the house of respondent No. 4. According to respondent No. 4,

she was quarantined as suspected patient of Covid-19. This

defence of respondent No. 4 has not been substantiated by

her. She has not produced any cogent evidence indicating that

she was suffering from Covid-19 and was hospitalized on that

count. A certificate by Medical Officer Rural Hospital Palam

indicates that respondent No. 4 did not have any symptoms of

Covid-19 nor did she come in contact with any Covid positive

patient. Therefore, she was discharged on 27th August, 2020.

From this certificate, it is clear that she did not have any

symptoms indicating that she was Covid-19 patient. The

certificate recites that she did not come in contact with any

Covid-19 positive patient. Respondent No. 4 has not produced

RTPCR report to show that she was suffering from Covid-19.

Therefore, on the basis of this certificate it cannot be said that

wp8288.2020.odt 14 of 23

she was quarantined for having contracted Covid-19.

Therefore, her contention that since she was Corona positive

patient she was required to be admitted and quarantined

cannot be accepted.

18. Subsequent developments indicate that respondent

No. 4 had knowledge of the meeting to be convened on 27 th

August, 2020. According to respondent Nos. 1 and 2,

application was filed by her brother-in-law on 25 th August,

2020 mentioning therein that respondent No. 4 was

quarantined on account of Covid-19. This clearly indicates that

she had knowledge of the meeting. Therefore, once it is

proved that she had knowledge of the meeting, the objection

regarding improper service of notice pales into insignificance.

Therefore, her contention that the service was improper

cannot be countenanced.

19. Even if it is assumed for the sake of argument that

service was improper, respondent No. 4 has to show what

wp8288.2020.odt 15 of 23

prejudice was caused to her because of non compliance of

procedural requirement. In the case of Prabhawati Vijaykumar

Khivsara Vs. State of Maharashtra and others, 2008(2)Mh.L.J.

274 it is held thus

"18. It could clearly be seen from the records that it has been proved that the son of the present petitioner in Writ Petition No. 6811/2007 was duly served with the notice and the notice could not be served on her as it was informed that she had gone for pilgrimage to Zarkhand. Since the motion has been carried by 2/3rd majority, which is requirement under the statute, no prejudice could be said to have been caused to the petitioner in Writ Petition No. 6811/2007."

20. In the case at hand also no prejudice can be said to

have been caused to respondent No. 4 because of procedural

deficiencies as no confidence motion was passed by majority of

7 against 0 which means it was passed with absolute majority.

21. Learned counsel Shri. Kale placed reliance on the

case of Bhika Narayan Gangurde and others Vs. State of

Maharashtra and others, 2002(1) Bom. C.R. 186 it is held

thus:

wp8288.2020.odt 16 of 23

"11. Undisputedly, the other modes are first by delivering or tendering the notice to the member to whom the notice is addressed and in case, he is not found, by delivering or tendering the notice to the adult male member of his family residing with him in the house. It is only when the person on whom the notice is given or tendered and where the member or adult male member of his family refused to accept the notice, the question of affixation of the notice on the door can arise. Undisputedly, there is no finding arrived at either by the Additional Collector or the Additional Commissioner regarding any attempt being made by the Talathi to tender the notice to the respondent No. 6 or any male adult member of the family of the respondent No. 6 before affixation of the said notice on the door of the house of the respondent No. 6."

22. The aforesaid decision of this Court has no

application to the facts of the case at hand as there was no

evidence to show that the Sarpanch had the knowledge. In the

case at hand, there is evidence to show that respondent No. 4

had knowledge of the scheduled date of the meeting. Her

brother-in-law had filed application for postponement of the

meeting.

23. He also placed reliance on the case of Indubai Vedu

wp8288.2020.odt 17 of 23

Khairnar Vs. State of Maharashtra and others, 2003(2)

Bom.C.R.239. In this case notice was not received by the

petitioner nor she had knowledge of the meeting. Therefore,

this authority has no application to the facts of the case at

hand.

24. Thus, the conspectus of the discussion made above

makes it abundantly clear that notice was affixed on the house

of respondent No. 4 as she was not available when notice was

tried to be served on her. Learned Additional Commissioner

has held that since application was filed by brother-in-law of

respondent No. 4, he being an adult member, notice could

have been served on him. This conclusion of the learned

Additional Commissioner has no basis. There is no evidence to

show that respondent No. 4, her brother-in-law, was present in

the house when notice was to be served on her. Therefore, this

conclusion of a Additional Commissioner is without any

evidence.

wp8288.2020.odt 18 of 23

25. Thus, the evidence on record clearly shows that

respondent No. 4 had knowledge of the meeting. There is no

evidence to show that she was suffering from Covid-19.

Therefore, it has to be said that motion was validly passed.

26. It is pertinent to note that motion of no confidence

was passed with absolute majority. In a democratic society

what is seminal is the will of the majority and the elected

representatives must honor the will of the majority. When

resolution is passed with thumping majority it is not

permissible to set aside the resolution on some technical flaws.

A Gram Panchyat is essentially a democratic institution which

must be run on democratic principles. When not only the

majority of the members but also all the members expressed

their desire that respondent No. 4 should not be their leader, it

is expected of a Sarpanch to step down voluntarily. In the case

of Prabhawati Vijaykumar Khivsara Vs. State of Maharashtra

and others cited supra it has been held as under:

"20. The Division Bench of this Court, in the case of Nimba Rajaram Mali Vs. Collector,

wp8288.2020.odt 19 of 23

Jalgaon and others, reported in 1998(3) Mh.L.J. 204=1999(1) Bom.C.R. 546, followed the aforesaid Judgment in the case of Smt. Annapurnabai Ajabrao Vs. Annapurnabai Anandrao (referred supra) and observed thus:

"In a democratic society what is important is the will of the majority and the elected representatives must honour the will of the majority. It is immaterial to analyse and debate on the reasons behind the will of the majority or the specific reasons for such will being expressed. The will of the majority is of paramount importance and it must be respected by all elelcted representatives responsible for the governance of such democratic institutions. As observed by the Apex Court in the case of Babubhai (supra), resolution of No Confidence Motion is different from Censure Motion and such a resolution cannot be faulted on the ground that there were no reasons or reasons were vague and lacked detailed specifications. Once the resolution of No Confidence Motion is passed by a clear majority and in keeping with 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 the new election of his successor. Unless it is shown that while passing such a resolution of No Confidence Motion, there was flagrant violation of any of mandatory procedure laid down, such a resolution cannot be interfered with by the Court or statutory authorities

wp8288.2020.odt 20 of 23

adjudicating such disputes."

27. In the light of this, passing of no confidence motion

cannot be faulted with on an unsubstantiated ground of being

quarantined on account of Covid-19. Will of majority cannot be

neglected so lightly. Therefore, it has to be held that resolution

of no confidence was validly passed.

28. So far as second requirement in terms of Section 35

(1-B) of Maharashtra Village Panchayat Act is concerned,

admittedly, Gram Sabha for ratification of resolution by secret

ballot was not held. It is not in dispute that by circular dated

12th May, 2020 the Government of Maharashtra had

temporarily stayed the holding of Gram Sabha on account of

spread of Covid-19. Vide letter dated 28th October, 2020,

Government clarified that holding of Gram Sabha in addition to

no confidence motion is mandatory under Section 35 of the

Maharashtra Village Panchayat Act. This clearly shows that

restrictions on holding Gram Sabha were in force during the

period from 12th May, 2020 to 28th October, 2020. During this

wp8288.2020.odt 21 of 23

period Gram Sabha could not have been held. No confidence

motion was passed on 27th August, 2020. Respondent No. 4

preferred writ petition No. 6341 of 2020 before this Court and

this Court on 21st September, 2020 allowed respondent No. 4

to withdraw the writ petition with liberty to apply to the

Collector in terms of Section 35 (3-B) of Maharashtra Village

Panchayat Act 1959. On 24th September, 2020 respondent No.

4 preferred appeal. This clearly shows that these

developments occurred during the period the restrictions

imposed by letter dated 12th May, 2020 were in force.

Therefore, Gram Sabha for ratification of no confidence

resolution could not be held. Respondent Nos. 1 and 2 can now

hold Gram Sabha for ratification in view of the communication

of the Government dated 28th October 2020. In view of this, I

deem it appropriate to pass the following order.

                                      ORDER

       (i)     Writ petition is partly allowed.

(ii) No confidence motion is declared to have been

validly passed.

wp8288.2020.odt 22 of 23

(iii) The said resolution of no confidence motion will

be subject to ratification by Gram Sabha.

(iv) There shall be no order as to costs.

(v) Rule is made absolute in above terms.

[M. G. SEWLIKAR, J.]

Later on :-

. Learned counsel Shri. Kale for respondent No. 4

submits that this order be stayed for a period of 4 weeks as he

wants to challenge this order before the Honourable Supreme

Court.

. The order shall stand stayed for a period of three

weeks from today.

                                           [M. G. SEWLIKAR, J.]


ssp




wp8288.2020.odt                                                      23 of 23