Bombay High Court
Anusaya Shravan Narwade And Others vs The State Of Maharashtra Through ... on 26 August, 2024
2024:BHC-AUG:19345
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.8323 OF 2023
Anusaya Shravan Narwade And 5 Others
VERSUS
The State Of Maharashtra Through Collector Hingoli And
Others
...
Advocate for the Petitioners : Mr. U.B. Deshmukh
AGP for Respondents 1,2 : R.R. Tandale
Respondent Nos.3 and 4 served - absent.
Advocate for Respondent -5 : Mr. D.M. Shinde (Th. V. C.)
Advocate for Respondent - 6 : Mr. S.B. Pulkundwar
...
CORAM : S. G. CHAPALGAONKAR, J.
Dated : August 26, 2024
ORDER :
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1. The petitioners impugns the judgment and order
dated 6.6.2023 passed by the District Collector, Hingoli in File
No.2023/GPN/Kavi-205 and seeks to restore Resolution of 'No
Confidence Motion' passed against respondent no.5/Sarpanch
in Special Meeting dated 28.2.2023.
2. Mr. Umakant Deshmukh, learned advocate
appearing for petitioners submits that petitioners are elected
members of Village Panchyat, Kupati. They had moved the
requisition dated 20.2.2023 before respondent no.2 for 'No
Confidence Motion' against respondent no.5/Sarpanch.
Respondent No.2 issued notices to the Members of Panchayat
and scheduled Special Meeting on 28.2.2023. The notices
were served upon all Members. Special Meeting held on
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28.2.2023 was attended by all seven Members of the Panchayat
and they participated in the motion. Consequently, motion is
passed by 6/1 vote. Respondent No.5 assailed validity of 'No
Confidence Motion' by filing appeal before the District
Collector, Hingoli. District Collector allowed appeal vide order
dated 6.6.2023 only on the ground that Special Meeting was
not scheduled within the prescribed period of seven days.
3. Mr. Deshmukh would submit that the Full Bench
of this Court in case of Shri Raosaheb Mallappa Magdum and
Ors. Vs. Vandana Shivajirao Mane and others concluded that
notwithstanding sub-section (2) of Section 35 of Maharashtra
Village Panchayats Act, 1959 mandating the Tahsildar to
convene a meeting of the Panchayat within seven days from
the receipt of the notice under sub-section (1), if for some
reasons the Tahsildar is unable to do so or deliberately refrains
from doing so, he may be personally liable for the wrong
committed but that would not mean that a meeting convened
beyond seven days would be corum non-judice. The decisions
taken at the meeting would be legal and valid. In view of the
aforesaid authoritative pronouncement, Mr. Deshmukh submits
that the order impugned thereby declaring 'No Confidence
Motion' and meeting dated 28.2.2023 being illegal, cannot be
sustained under law. He would therefore seek to restore 'No
Confidence Motion' and upheld 'No Confidence Motion' passed
against respondent no.5 in Special meeting dated 28.2.2023.
4. Per contra, Mr. Dhananjay Shinde, learned
advocate appearing for respondent no.5 vehemently contend
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that the challenge raised by respondent no.5 to the motion of
no confidence was not restricted to the Schedule of meeting
beyond 7 days. He would submit that, in terms of Rule 2 Sub-
rule (2) of the Bombay Village Panchayats, Sarpanch and Up-
sarpanch (No Confidence Motion), Rules 1975 (for short Rules
of 1975), the notice under sub-rule (1) shall be accompanied
by 7 additional copies and the Tahsildar shall sent one copy to
the Sarpanch, one copy to the Upa-Sarpanch and one each to
Zilla Parishad, Panchayat Samiti, the Collector and the
Commissioner. He submits that the notice served to the
respondent no.5 was not in prescribed proforma as per Rule
2(1). It was in the nature of letter calling upon her to attend
the meeting of 'No Confidence Motion'. Respondent No.5 was
not communicated the grounds/charges on which 'No
Confidence Motion' is proposed. In absence of communication
of charges, Respondent no.5 lost her valuable right to defend
the charges and make effective representation during meeting
of no confidence. He would submit that the aforesaid non-
observance of rule goes to the root of democratic principles. It
is possible that respondent no.5 could have successfully
defended charges, had she received advance notice of charges
to be discussed in the meeting of 'No Confidence'.
5. In support of his contentions, he relies upon
judgment of the Supreme Court of India in case of Bhavnagar
University Vs. Palitana Sugar Mill (P). Ltd., and others
reported in (2003) 2 SCC 111 to contend that the statutory
authority is required to do a thing in particular manner as
prescribed while acting under the statute. The distraction
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would be fatal. He also places his reliance on a judgment of
Calcutta High Court in case of Tanusree Haldar and others
Versus State of West Bengal and others reported in 2022 SCC
Online Cal 1135.
6. Having considered the submissions advanced by
learned advocates appearing for the respective parties, it is
apparent that, in pursuance of the requisition of no confidence
motion dated 20.2.2023, meeting for no confidence motion
was convened on 28.2.2023. The proceeding book shows that
all seven members of village Panchayat were present at the
meeting. All Members were given information as regards to
purpose of the meeting of 'no confidence motion' and
discussion to be held on motion under section 35 of the MVP
Act. The proceedings records in all 5 charges to be discussed
against the Sarpanch/Respondent no.5. Proceeding also record
that respondent no.5 participated in the discussion and denied
all the charges. Finally, no confidence motion came to be
passed with majority of 6/1 . The District Collector, however,
declared meeting of no confidence dated 28.2.2023 to be
illegal and contrary to the Rules only on the ground that it was
convened beyond statutory period of seven days. Apparently,
the reason recorded by the Collector is unsustainable in view of
the law laid down by the Full Bench of this Court in case of
Shri Raosaheb Mallappa Magdum and ors. Vs. Vandana
Shivajirao Mane and ors. (Supra).
7. In that view of the matter, it would be necessary to
deal with second contention raised on behalf of respondent
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no.5 that she was not served with notice of no confidence
motion in the format prescribed and she was not
communicated the charges on which such motion was moved.
Reliance is placed on the Bombay Village Panchayats Sarpanch
and Upa-Sarpanch (No Confidence Motion), Rules, 1975. Rule
2(1) and (2) states as under :-
"2. (1). The members of a panchayat who
desire to move a motion of no-confidence
against the Sarpanch or the Upa-Sarpanch shall
give notice thereof in the form appended hereto
to the Tahsildar of the taluka in which such
panchayat is functioning. Where the members
desire to move the motion of no-confidence
against the Sarpanch as well as the Upa-
Sarpanch, they shall give two separate notices.
(2) The notice under sub-rule (1) shall be
accompanied by [nine additional copies]
thereof, and the Tahsildar shall send one copy to
the Sarpanch, one to the Upa-Sarpanch and one
each to the Zilla parishad, the Panchayat Samiti,
the Collector and the Commissioner, one copy
shall also be given to the Secretary."
8. Referring to language of section 2 (1) Mr. Shinde,
learned advocate appearing for respondent no.5 submits that
the notice shall be in the form appended thereto. According to
him, non-service of the notice in specified format would vitiate
entire proceeding as petitioner was never convened the
grounds on which 'No Confidence Motion' is moved.
9. The law on the aforesaid point is no more
resintegra. The provisions contained under Sub-Rule (2) of
Rule 2 of the Rules are held to be directory and not mandatory
in nature. The omission to specify grounds for moving motion
of no confidence or error in typing of verification clause would
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not by itself invalidate notice under sub-section (1) of Section
35 of the Act. Giving reference to the Judgment of this Court
in case of Nimba Rajaram Mali Vs. The Collector, Jalgaon, this
Court observed that 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 adjudicating such disputes. The Division Bench
further observed that authorities concerned, should not set
aside no confidence motion unless there was flagrant violation
of mandatory procedure.
10. In yet another judgment in case of Yamunabai
Laxman Chavan and others Vs. Sarubai Tukaram Jadhav
reported in 2004 (2) Mh.L.J. 1004 this Court observed that the
provisions contained in Rule 2(2) must be regarded as
directory having regard to the true nature and purpose of a
motion of no confidence. A motion of no confidence is not akin
to disciplinary proceedings or a provision for removal for
misconduct. A removal for misconduct is punitive. In such a
case, a person who is sought to be proceeded against has to be
furnished with a charge sheet and the removal must take place
by following an inquiry that is consistent with the principles of
natural justice. A motion of no confidence on the other hand,
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does not partake of a punitive character nor is it based on
charges of misconduct which have to be proved. A motion of
no confidence is the fundamental expression of the collective
will of the members of a legislative body that they lack
confidence in one of their own. The contention that the right to
speak at the meeting given to a Sarpanch or Upa-Sarpanch
requires that the requisition which has been moved be
furnished to them cannot be acceded to. Should the Sarpanch
or Upa-Sarpanch seek to have copies of the requisition, it is
open to them to apply to the Tahsildar. However, where as in
the present case the Sarpanch or Upa-Sarpanch chooses to
participate in the meeting whereafter a resolution is duly
passed by the requisite majority, it would stultify the
democratic process if the Court were to nullify the resolution
on the ground that a copy of the requisition was not furnished
to the Sarpanch or Upa-Sarpanch.
11. Applying the aforesaid principles of law in the
facts of present case, it is abundantly clear that the respondent
was served with communication regarding No Confidence
Motion, she has participated in the meeting. The grounds of
no confidence motion were discussed. The petitioner denied
the charges / allegations and thereafter, No Confidence Motion
is passed with thumping majority of 1/6. In that scenario,
merely because notice was not served in format prescribed
would not vitiate the motion of 'No Confidence.'
12. In that view of the matter, there is no force in the
submission advanced on behalf of the respondent no.5.
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Consequently, writ petition succeeds and allowed in terms of
prayer clause "B" & "C". Writ petition stands disposed off.
( S. G. CHAPALGAONKAR )
JUDGE
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