Bombay High Court
Prashant Sakharam Dumbre And Ors vs State Of Maharashtra Thru ... on 29 March, 2023
Bench: S. V. Kotwal
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL WRIT PETITION NO. 2035 OF 2023
Prashant Sakharam Dumbre & Ors. ..Petitioners
Versus
State of Maharashtra & Ors. ..Respondents
__________
Mr. Drupad S. Patil a/w. Namitkumar S. Pansare a/w. Shailesh
Mhaske for Petitioners.
Mr. S. D. Rayrikar, A.G.P. for Respondent Nos.1 to 3.
__________
CORAM : SARANG V. KOTWAL, J.
DATE : 29 MARCH 2023
PC :
1. The Petitioners have challenged the notice dated
14/02/2023 passed by the Respondent No.3 cancelling the earlier
notice issued by him on 10/02/2023 for convening a meeting on
15/02/2023 to consider 'No Confidence Motion' against the
Respondent No.4 herein. The office report shows that all the
Respondents are served.
2. Heard Shri. Drupad Patil, learned counsel for the
Petitioners and Shri. Rayrikar, learned A.G.P. for the Respondent
Nos.1 to 3.
Gokhale
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3. The elections for the Gram Panchayat Otur were held on
02/02/2021. On 09/02/2021, the Respondent No.4 was elected as
Sarpanch by the elected members to the Gram Panchayat. On
04/03/2022, a requisition was made by some of the members to
bring about no confidence motion against the Respondent No.4 U/
s.35(1) of the Maharashtra Village Panchayat Act, 1959
(hereinafter referred to as 'the said Act'). At the first instance, the
Tahsildar convened a meeting for considering that 'no confidence
motion'. However, that notice was cancelled vide his
communication dated 09/03/2022 on the ground that the
requisition for no confidence motion was made within a period of
two years of the election which was not permissible under the
proviso to Section 35 of the said Act. Thus, the first attempt on the
part of the Petitioners to pass no confidence motion was not
permitted by the Tahsildar on the ground that the said motion
against the Respondent No.4 was not permissible within two years
of her election. The said communication is not under challenge in
this petition.
4. Subsequently, on 10/02/2023, the Petitioners again
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moved a fresh requisition U/s.35(1) of the said Act for passing no
confidence motion against the Respondent No.4 by complying with
the provision of Section 35(1) of the said Act. The Tahsildar
convened a meeting on 15/02/2023. That order was passed by the
Tahsildar, Junnar on 10/02/2023. After that, without giving any
notice to the Petitioners the impugned order was passed by the
Tahsildar, Junnar on 14/02/2023; thereby cancelling the meeting
which was scheduled for 15/02/2023. In the impugned order, it
was mentioned that, in the past, in March 2022, the process was
initiated to pass no confidence motion against the Respondent
No.4 vide notice dated 04/03/2022; those proceedings had failed
and, therefore, within next two years further no confidence motion
could not be passed. On this reason, the meeting for discussing the
no confidence motion was cancelled.
5. Learned counsel for the Petitioners referred to Section 35
of the said Act. He submitted that the Tahsildar has misconstrued
the provision of the said Act, and in particular, the proviso
mentioned U/s.35(3) of the said Act. The said proviso mentions
that, if the no confidence motion fails, then no motion shall be
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brought within next two years from the date of failure of no
confidence motion. He submitted that, Section 35(3) mentions the
word "carried" and it starts with the word "If the motion is carried
by......". He submitted that, meaning given to these words is that,
no confidence motion should be put to vote and if it fails then only
proviso would bar the new 'no confidence motion' for the period of
two years.
6. In the present case, at the first instance, no confidence
motion was never decided and it was not allowed to be put in a
meeting because two years from the election of the Respondent
No.4 had not passed. Learned counsel referred to the observations
of the division bench of this Court in the case of Balaji Tulsiram
Chaudhari Vs. State of Maharashtra and others 1. In particular, he
relied on the observations in paragraph-10 of the said Judgment,
wherein, it was observed that, motion not being carried means
that the motion has failed. Moving of no confidence motion is
different from 'motion not being carried'. Learned counsel
submitted that, in March 2022, the no confidence motion was
1 2002 (2) Mh.L.J. 508
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never put to vote. Thus it had not failed. The meeting for that
motion was never held. Therefore, the period of two years does
not start from 09/03/2022. But it starts from election of the
Respondent No.4 as a Sarpanch on 09/02/2021. The fresh
requisition was made after two years from 09/02/2021 was over.
7. I find force in the submission of learned counsel for the
Petitioners. The Respondents are already served. However, the
petition can be decided at the admission stage itself. Learned
counsel for the Petitioners has made out a case for grant of ad-
interim relief.
8. Hence, the following order:
ORDER
i) Issue Notice to the Respondents for final disposal
of the writ petition at the admission stage.
ii) The notice is made returnable on 25/04/2023.
Hamdast is allowed.
iii)Stand over to 25/04/2023.
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iv) Till then, there shall be ad-interim relief in terms
of prayer clause (c), as prayed for by learned
counsel for the Petitioners.
(SARANG V. KOTWAL, J.)
