Bombay High Court

Shantabai Babu Sagat vs The State Of Maharasthra And ... on 23 February, 2021

Bench: V.K. Jadhav

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           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                      BENCH AT AURANGABAD

                         WRIT PETITION NO.214 OF 2021

 Smt. Shantabai Babu Sagat                              Petitioner

          Versus

 The State of Maharashtra & others                      Respondents


 Mr.V.S.Undre, advocate for the Petitioner.
 Mr.R.D.Sanap, AGP for Respondents No.1 & 2.
 Mr.V.V.Ingale, advocate for Respondents No.3 to 8.

                                     WITH
                         WRIT PETITION NO.223 OF 2021

 Manohar Yashwant Mane                                  Petitioner

          Versus

 The State of Maharashtra & others                      Respondents


 Mr.V.S.Undre, advocate for the Petitioner.
 Mr.K.B.Jadhavar, AGP for Respondents No.1 & 2.
 Mr.V.V.Ingale, advocate for Respondents No.3 to 8.


                                  CORAM : V.K.JADHAV, J.

                                 DATE     : 23rd February, 2021.

 PC :

 1                The learned AGP tenders affdavittintreply across the

bar, copy of which is given to the learned Counsel for the

petitioners. The same is taken on record.

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2 The learned Counsel for the Respondents No.3 to 8

submits that during pendency of these two writ petitions, in terms

of the directions issued by the Collector while passing the

impugned order, the Gram Sabha was conducted by the concerned

Block Development Offcer and majority of the members of the

Gram Sabha voted in favour of No Confdence Motion.

3 The learned Counsel for the petitioners, in terms of the

ratio laid down by the Division Bench of this Court in the case of

Mrs.Samidha Janardan Kudalkar Vs. State of Maharashtra &

others, (Writ Petition St.No.98737 of 2020, decided on 22 nd

December, 2020) seeks leave to add prayer clause pertaining to the

decision taken by the Gram Sabha on 21st February, 2021.

 4                Leave granted.



 5                The petitioners, in these two writ petitions, are

Sarpanch and UpatSarpanch, respectively. The petitioner in Writ

Petition No.214 of 2021 is a directly elected Sarpanch of the Gram

Panchayat. The members of the Gram Panchayat have moved

motion of No Confdence and accordingly the Tahsildar concerned

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has called meeting of the Panchayat for considering the said No

Confdence Motion. Notice of the meeting was issued on

07.08.2020 and the Special Meeting was held on 13.08.2020. In

the said meeting, the motion of No Confdence was passed against

the petitioners, who are Sarpanch and UpatSarpanch, respectively,

by majority of votes. It further appears that since the petitioner in

W.P.No.214 of 2021 is a directly elected Sarpanch, in terms of the

provisions of amended clause (b) of Subtsection (1A) of Section 35

of the Maharashtra Village Panchayats Act, (for short, 'the Act') if

the motion of No Confdence is carried by a majority of not less

than threetfourth 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 UpatSarpanch, as the case may

be, and ratifed before the special Gram Sabha by the secret ballot

in the presence and under the Chairmanship of the Offcer

appointed for the purpose by the Collector, shall forthwith stop,

exercising all the powers and, performing all the functions and

duties of the offce. So far as UpatSarpanch is concerned, the

said amendment by way of subtsection (1A) is applicable to the

Sarpanch directly elected and not to the UpatSarpanch.

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6 The petitioners, in both these writ petitions, in terms

of Section 35 (3tB) of the Act raised Disputes challenging validity of

the Motions before the Collector by fling two separate applications.

By order dated 31st December, 2020, the Collector, Osmanabad,

has passed identical two separate orders directing to arrange the

special meeting of the Gram Sabha and further appointed the

Block Development Offcer, Panchayat Samiti, Tulzapur, as

Presiding Offcer to conduct the said special meeting of Gram

Sabha.

7 The learned Counsel for the petitioners submits that

so far as petitionert Upa Sarpanch is concerned, no such directions

are required to ratify the resolution of No Confdence Motion

passed in the meeting by the Gram Panchayat. So far as petitioner

tSarpanch is concerned, the learned Counsel submits that in

terms of Section 35 (3tB) of the Act, it is for the Collector to decide

the validity of No Confdence Motion referred to him by way of

disputes raised by the petitioners and in view of the same,

direction issued by the Collector directing to conduct Special Gram

Sabha meeting is highly unwarranted and uncalled for.

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8 The learned Counsel submits that during pendency of

these writ petitions, the Block Development Offcer has conducted

special meeting of Gram Sabha in terms of the directions issued by

the Collector and accordingly, the majority of members of the

Gram Sabha ratifed the No Confdence Motion passed in the Gram

Panchayat meeting. The learned Counsel submits that by these

writ petitions, the petitioners also made a prayer to quash and set

aside the said resolution passed in the Gram Panchayat meeting.

The learned Counsel submits that the petitioners have raised

various legal points to challenge validity of the No Confdence

Motion, such as (i) the learned Tahsildar has conducted joint

meeting to consider No Confdence Motion against the petitioners/

Sarpanch and UpatSarpanch; (ii) Further, in terms of amended

provisions clause (c) of Section 35(1A), such no confdence motion

shall not be put for voting if it is proposed within two years from

the date of election of Sarpanch or Upa Sarpanch, etc..

9 The learned Counsel for the petitioners submits that

the Division Bench of this Court had an occasion to deal with

similar situation while deciding Writ Petition (St.) No.98237 of

2020. By order dated 22nd December, 2020, the Division Bench

(Coram: R.D.Dhanuka and Madhav Jamdar, JJ.) has remanded the

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matter to the Collector directing him to pass the order on merits

without being infuenced by the factum of resolution passed by the

Gram Sabha thereby validating the resolution which is subject

matter of the said dispute before the Collector.

10 The learned Counsel for Respondents No.3 to 8

submits that requisition of No Confdence Motion was moved on

07.08.2020 i.e. two years after the establishment of the Gram

Panchayat. The learned Counsel submits that in terms of the

Government Resolution dated 15.12.2020, the said period of two

years is required to be counted from the frst meeting of the Gram

Panchayat after taking charge of the Gram Panchayat. In the

instant case, petitioners - Sarpanch and UpatSarpanch have taken

charge on 21.11.2017 and the No Confdence Motion was moved on

07.08.2020, which is after completion of period of two years. The

learned Counsel submits that the special meeting was held on

13.08.2020 in the presence of the members of the Gram

Panchayat, the Tahsildar, Tulzapur and in the said meeting

resolution of No Confdence motion was ratifed by the majority of

the members. The learned Counsel submits that in terms of the

order passed by the Collector, Osmanabad, the Block Development

Offcer has called the special meeting of Gram Sabha for ratifying

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the resolution of No Confdence Motion. The said meeting was

called on 21.02.2020. The petitioners had also participated in the

said process. The learned Counsel submits that in the special

meeting, total 587 voters were present out of 742 voters and by

secret ballot, the no confdence motion was ratifed against both

the petitioners. The said ratifcation was carried out by majority of

votes consisting total 302 votes. The learned Counsel submits that

these two writ petitions have become infructuous as the petitioners

have challenged the decision of the Collector, dated 31.12.2020,

which is already implemented and complied with. The learned

Counsel submits that in view of the same, petitioners are removed

from the post by following due process of law. The learned Counsel

submits that it is not out of place to mention that out of eight

members of the Gram Panchayat, six members have passed the No

confdence motion against the petitioners.

11 The learned AGP has almost raised similar points,

however, with one addition. He submits that due to outbreak of

Covidt19 and elections of Gram Panchayats, the Gram Sabha

meeting for ratifcation of resolution of No Confdence Motion could

not be called.

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12 The amended provisions of clause (b) subtsection (1A)

of Section 35 of the Maharashtra Village Panchayats Act, are

reproduced herein below, which are relevant for consideration of

the present dispute.

35. Motion of no confdence:t

(1) ....... ....... ....... ....... ....... .......

(1A) In respect of the panchayat to which the Sarpanch is directly elected under section 30At1A, the provisions of this section shall apply with the following modifcations:t

(a) ....... ....... ....... ....... ....... .......

(b) If the motion of notconfdence is carried by a majority of not less than threetfourth 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 UpatSarpanch, as the case may be, and ratifed before the special Gram Sabha by the secret ballot in the presence and under the Chairmanship of the Offcer appointed for the purpose by the Collector, shall forthwith stop, exercising all the powers and, performing all the functions and duties of the offce and thereupon such powers, functions and duties shall vest in the UpatSarpanch, in case the motion is carried out against the Sarpanch.

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13 In terms of the said amended provisions, if the

Sarpanch is directly elected, then resolution of no confdence

motion, if any, to be ratifed before the special Gram Sabha by

secret ballot in the presence and under the Chairmanship of the

Offcer appointed for the purpose by the Collector. In the instant

case, though the No Confdence Motion was passed on 13.08.2020,

however, till the dispute is referred by the petitioners to the

Collector, challenging the validity of the said No Confdence Motion,

no special Gram Sabha meeting was either called or conducted. It

further appears that while disposing of the said dispute, otherwise

than under the provisions of subtsection (3tB) of Section 35 of the

Act, the Collector has directed to arrange a special Gram Sabha

meeting under the Chairmanship of Block Development Offcer for

ratifcation of the No Confdence motion. It is pertinent that the

said ratifcation in terms of the amended provisions of subtsection

(1A) of Section 35 is necessary only in case of Sarpanch, who is

directly elected and not in respect of the UpatSarpanch. Even

then, the learned Collector has issued directions for conducting

special Gram Sabha meeting in respect of petitionert Upa t

Sarpanch also for ratifcation of the No Confdence motion. In both

the matters, even though the learned Collector has discussed the

various grounds raised by the petitioners, challenging the validity

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of the No Confdence Motion by referring the disputes, however,

without adhering to those grounds and deciding anything on it, the

learned Collector has simply given directions to hold special Gram

Sabha meeting. In terms of provisions of subtsection (3tB) of

Section of the Act, if the Sarpanch, or, as the case may be, Upat

Sarpanch, desires to dispute the validity of the motion carried

under subtsection (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

fnal. The learned Collector, instead of deciding that dispute,

directed to hold the special Gram Sabha meeting under the

Chairmanship of Block Development Offcer, Panchayat Samiti,

Tulzapur. Though during pendency of these writ petitions, the

Gram Sabha was conducted under the Chairmanship of Block

Development Offcer, Panchayat Samiti, Tulzapur and the said No

Confdence Motion was ratifed by majority of villagers in the

special Gram Sabha meeting, however, in the event if the Gram

Sabha would have voted against the No Confdence Motion and if

the Gram Sabha would not have ratifed the said No Confdence

Motion, then the situation would have been very confusing, since

the learned Collector has not decided the said disputes fnally.

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14 In the case of Mrs.Samidha Janardan Kudalkar Vs.

State of Maharashtra & others, (Writ Petition St.No.98737 of 2020,

decided on 22nd December, 2020), the Division Bench, in

paragraphs no.3 to 5 of the order, has made following

observations:

"3 It is case of the Petitioner that the Collector, however, directed the Tahsildar to convene special Gram Sabha for purpose of validating the said resolution which was subject matter of the said dispute before the Collector.

               Based       on       the   said   directions,    the    Gram
               Panchayat called Gram Sabha.                   The Tahsildar

issued notice for convening Gram Sabha on 23/11/2020. On 23/11/2020, the Gram Sabha validated resolution of No Confdence against the Petitioner which was subject matter of dispute before the Collector.

4 In our view since the Collector has not decided the dispute fled by the Petitioner under section 35 (3B) of the Maharashtra Village Panchayat Act, the Collector should not have issued any direction to the Tahsildar to convene Gram Sabha for validating the said resolution which was subject matter of the

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dispute and to make said dispute infructuous.

5 The impugned decision taken by the Gram Sabha on 23/11/2020 validating earlier resolution dated 28/09/2020 is thus quashed and set aside. The learned Collector shall dispose of the said dispute fled by the Petitioner annexed at ExhibittF (Colly.) to the petition within eight weeks from today after hearing the Petitioner and on its own merits. The Petitioner shall remain present before the learned Collector on 05/01/2021 at 11 am."

15 Furthermore, in para no.6 of the order, the Division

Bench, when it was brought to its notice that the charge of the

Sarpanch has already been handed over, further directed that

handing over of charge would depend upon the outcome of the

dispute, as may be resolved by the learned Collector.

16 In view of the same, in the identical fact situation, this

Court is left with no other choice but to relegate the matter to the

learned Collector for deciding the disputes, as referred by the

petitioners, afresh.

17 So far as additional prayer clause "At1" inserted by way

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of an amendment for quashing and setting aside the Gram Sabha

Resolution is concerned, if the order passed by the Collector,

directing the Block Development Offcer to conduct the Gram

Sabha is set aside, the subsequent Resolution passed in the Gram

Sabha would be meaningless. In view of the same, relief in terms

of amended prayer clause "At1" need not be granted.

 18               Hence, the following order:



 (i)              Both the writ petitions are hereby partly allowed in

 terms of prayer clause "A".



 (ii)             The judgment and order dated 31.12.2020 in Appeal

No.2020/Sa Pra/Gra Pa Ni/Kat1/Kavit427 and the judgment and

order dated 31.12.2020 in Appeal No.2020/Sa Pra/Gra Pa Ni/Kat

1/Kavit428, passed by the learned District Collector, Osmanabad,

are hereby quashed and set aside.

(iii) Appeal No.2020/Sa Pra/Gra Pa Ni/Kat1/Kavit427 and

Appeal No.2020/Sa Pra/Gra Pa Ni/Kat1/Kavit428 are restored to

its original number, with the following directions:

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(a) The respective petitioners and Respondents No.3 to 8

shall appear before the learned District Collector, Osmanabad, on

05th March, 2021 at 11.00 a.m. and the learned District Collector,

Osmanabad, shall decide both the disputes within prescribed