Shila Vijay Chavan vs The State Of Maharashtra Through Its ...
2024 Latest Caselaw 1849 Bom

Bombay High Court

Shila Vijay Chavan vs The State Of Maharashtra Through Its ... on 23 January, 2024

2024:BHC-AUG:2071

                                                   1              906 & 007 W.P. 613-204.odt




                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   BENCH AT AURANGABAD

                                WRIT PETITION NO. 613 OF 2024

                    Smt. Shila W/o Vijay Chavan,
                    Age : 39 Years, Occ. Agriculture and Social work
                    R/o. Rahuwadi Tq. Ambad Dist. Jalna              ..... Petitioner

                                 VERSUS

               1.   The State of Maharashtra,
                    Through its Additional Chief Secretary,
                    Rural Development Department, Mantralaya,
                    Mumbai-32.

               2.   The Divisional Commissioner,
                    Chh. Sambhajinagar, Near Delhi Gate,
                    Chh. Sambhajinagar

               3.   The District Collector,
                    Jalan, Collectorate Office building
                    Jalna.

               4.   The Presiding Officer & Tahsildar,
                    Ambad Tq. Ambad District Jalna.

               5.   The Grampanchayat,
                    Rahuwadi Tq. Ambad Dist. Jalna
                    Through its Gramsevak.

               6.   Kavita Gopinath Jadhav,
                    Age : 42 Years, occ. Agriculture,


               7.   Babu Meharban Pawar,
                    Age : 65Years, Occ. Agriculture

               8.   Kalabai Shivdas Rathod,
                    Age : 44 Years, Occ. Agriculture
                                     2              906 & 007 W.P. 613-204.odt



9.    Gopal Omprakash Rathod,
      Age : 36 Years, Occ. Agriculture

10.   Gulab Lalu Rathod,
      Age : 51 Years, Occ. Agriculture

11.   Vijay Arjun Chavan,
      Age : 28 Years, Occ. Agriclture

12.   Shobha Anil Rathod,
      Age : 32 years, Occ. Agriculture

      All resident of Rahuwadi Tq. Ambad
      District Jalna.                              .. Respondents

                         AND
             WRIT PETITION NO. 614 OF 2024

      Smt. Anita W/o Ankush Rathod,
      Age : 29 Years, Occ. Agriculture and Social Work,
      R/o.Rahuwadi Tq. Ambad Dist. Jalna.               ..Petitioner

             VERSUS

1.    The State of Maharashtra,
      Through its Additional Chief secretary,
      Rural Development Department, Mantralaya,
      Mumbai-32.

2.    The Divisional Commissioner,
      Chh. Sambhajinagar, Near Delhi Gate,
      Chh. Sambhajinagar

3.    The District Collector,
      Jalan, Collectorate Office building
      Jalna.

4.    The Presiding Officer & Tahsildar,
      Ambad Tq. Ambad District Jalna.

5.    The Grampanchayat,
      Rahuwadi Tq. Ambad Dist. Jalna
                                      3             906 & 007 W.P. 613-204.odt



      Through its Gramsevak.

6.    Kavita Gopinath Jadhav,
      Age : 42 Years, occ. Agriculture,


7.    Babu Meharban Pawar,
      Age L 65Years, Occ. Agriculture

8.    Kalabai Shivdas Rathod,
      Age : 44 Years, Occ. Agriculture


9.    Gopal Omprakash Rathod,
      Age : 36 Years, Occ. Agriculture

10.   Gulab Lalu Rathod,
      Age : 51 Years, Occ. Agriculture

11.   Vijay Arjun Chavan,
      Age : 28 Years, Occ. Agriclture

12.   Shobha Anil Rathod,
      Age : 32 years, Occ. Agriculture

      All resident of Rahuwadi Tq. Ambad
      District Jalna.                              .. Respondents

                               .....
      Advocate for the Petitioners : Mr. Shahaji. B. Ghatol Patil
      AGP for Respondent Nos. 1 to 4 : Mr. A. S. Shinde
      Advocate for Respondent No.5 : Mr. P. G. Boarade
      Advocate for Respondent Nos. 6 to 12 : Mr. Vinayak P. Narwade
                               ....


                                CORAM : S. G. MEHARE, J.

                               DATE       : 23.01.2024
JUDGMENT :

4 906 & 007 W.P. 613-204.odt

1. Rule. Rule made returnable forthwith. Heard finally by consent

of the parties.

2. The petitioners were Sarpanch and Upa-Sarpanch of village

Panchayat consisting of eleven members. Seven village panchayat

members submitted a notice under Section 35 of the Maharashtra

Village Panchayats Act, 1958, for no-confidence against both of them

on 3rd October 2023. They have assigned the reasons for the no-

confidence motion in the notice. The Tahsildar issued notice to both

the petitioners. The petitioners received the notice. They were present

in the meeting dated 10.10.2023, specially convened for the no-

confidence motion. Both petitioners submitted their say in writing. In

the meeting, the resolution of a no-confidence motion was passed

against both the petitioners by 3/4 th majority. The said resolution was

impugned before the District Collector, Jalna. The District Collector

confirmed the resolution and dismissed the appeal.

3. The petitioners have objected that a notice of no-confidence

motion does not mention that it was a notice of no-confidence motion,

and the rules under which the said notice was issued were also not

mentioned therein. The notice of a no-confidence motion was received

two days prior to the meeting; therefore, they did not have sufficient 5 906 & 007 W.P. 613-204.odt

time to prepare. The petitioners have submitted their say on the

allegations levelled against them in writing. However, there was no

whisper of the discussion on the submissions of the petitioners, and the

resolution of a no-confidence motion was mechanically passed. The

vehement argument has been advanced that both the petitioners were

asked to vote by secret ballot in writing. However, the no-confidence

resolution did not reflect that Tahsildar put the subject for discussion

in the meeting. Since the intimation was not given to the members,

they were unaware of the demand for secret votes by ballots. The

resolution was silent about the demand for votes by secret ballots. The

Tahsildar, who was presiding over the meeting, did not ask about the

voting by secret ballot in the meeting. Hence, members had no

occasion to make a demand. No orders were passed on their

application asking for the voting by secret ballots. The motion of a no-

confidence was not moved in the meeting. There were no proposers

and seconders to the subjects. The resolution without proposer and

seconder was in violation of the Village Panchayats Meetings Rules

1959 (Rules 1959 for short), particularly Rules 17 and 23. All these

points were raised in the appeal filed before the Collector, Jalna. The

Collector, Jalna, has merely recorded the points of objection but did

not discuss them in the concluding part of his order. The order of the 6 906 & 007 W.P. 613-204.odt

Collector, Jalna, was mechanical and without application of mind. No

opportunity of hearing was granted to the petitioners in the meeting.

4. To bolster his arguments, he relied on the cases of

(i) Vijay Ramchandra Katkar Vs.Group Gram Panchayat Pali,

District Raigad and others 2010 (4) ALL MR 707,

(ii) Aarti Santosh Pawar Versus The State of Maharashtra and others,

Writ Petition No. 14612 of 2021 of this Court decided on 18 th

October 2023.

(iii) Jaenendrakumar Phoolchand Daftari Versus Rajendra Ramsukh

Mishra and others 1994 (1) Mh.L.J. 100.

(iv) Viswas Versus Group Grampanchayat Shihu (201(3) Mh.L.J. 500

Uddhav Poma Aade Vs. Additional Commissioner of Aurangabad

and others 2018 (3) Mh. L. J. 529

(v) Manoj Ghanshyamdas Banode Vs. Presiding Officer/Tahsildar

Dhamangaon and others 2019 SCC OnLine Bom 85: (2019) 2

Bom CR 249

(vi) Tatyasaheb Ramchandra Kale Versus Navnath Tukaram Kakde

and others 2014(6) Mh.L.J.

(vii) Vipulbhai M. Chaudhary Vs. Gujarat Co-operativer Milk

Marketing Federation Ltd and others 2015(8) SCC 1.

7 906 & 007 W.P. 613-204.odt

(viii) Kishor Ramchandra Phalak Vs. Vilas Damordhar Mahajan and

others 1997 Mh. L.J 27

(ix) Nagorao Sambhaji Dange Vs. Rudra Ramkisan Warkad and

others of this Court in Writ Petition No. 4863 of 2018 decided on

5th February 2020.

(x) Ganesh Sukhdeo Gurule Vs. Tahsildar Sinnar and others 2019

(5) Mh.L.J. 509.

(xi) Bhaskar Laxmanrao kadam Vs. Additional Collector, Nanded and

others 2013 (6) Mh.L.J. 613.

(xii) Sangita Bhaskar Ingale Vs. State of Maharashtra and others

2015(6) Mh. L. J. 957.

5. Considering the above judgments, the arguments of the learned

counsel for the petitioners revolve around the applicability of the Rules

of meetings. He has emphasized that the Bombay Village Panchayats

Sarpanch and Up-sarpanch ( No Confidence Motion) Rules 1975 are

silent about the meeting procedure and practice. Therefore, the

Bombay Village Panchayat ( Sarpanch and Up-Sarpanch) Election

Rules 1964 would attract. He has specifically referred to Rule 10 and

vehemently argued that the voting rules by secret ballots should be

applied to the no-confidence motion meeting. He has also vehemently

argued that the Full Bench of this Court, in the case of Vishwas 8 906 & 007 W.P. 613-204.odt

Pandurang Bokad (supra) has dealt with Rule 17 of the Rules 1959

and answered that the Rules 1959 would apply to the meeting of a no-

confidence motion. Therefore, the other Rules, particularly Rules 21,

22 and 26 of Rules 1959, would attract. Therefore, there must be a

proposer and seconder to the subject, and the subject should be put up

for discussion in the meeting. There shall be a discussion on the

subject, and then the resolution is put for voting. This mandatory

procedure has not been followed; therefore, the resolution of no-

confidence passed against the petitioners is against the law. He prayed

to allow both the petitions.

6. Per contra, the learned counsel for the contesting respondents

has vehemently argued that notice of a no-confidence motion was

perfect as per the requirement of no-confidence motion Rules. It is a

true translation of the contents given in the said so-called format. He

would argue that the notice clearly indicates the intention of the

signatories that they requested the Tahsildar to convene a special

meeting to consider a no-confidence motion against the petitioners.

The law is well-settled that the discussion on the subject in the no-

confidence meeting is not mandatory. The resolution by a majority of

votes expressing their no-confidence in the meeting is sufficient to pass 9 906 & 007 W.P. 613-204.odt

the resolution. In the democratic States, the majority is the Rule. The

majority was against the petitioners. The petitioners had submitted

their submissions in writing. That submissions were read over in the

meeting, and members were invited to comment thereon. The meeting

minutes are specific: the opportunity was granted to the petitioners to

make the submissions. He has vehemently argued that Rule 28 of the

Rules, 1959 is very specific: unless the majority demands secret ballot

voting, the presiding officer cannot act on his own and invite the

members for secret voting by ballot. In the absence of any such request

or demand by the majority of the members present in the meeting, the

Rule is voting by showing hand or oral voice. Since only these two

petitioners had requested in writing for secret ballots, and the majority

did not demand it, the Presiding Officer has correctly not considered

the request. It was not the subject of no a-confidence motion. It was

part of the procedure. The demand by minority people does not fall for

consideration before the Presiding Officer in the meeting of a no-

confidence motion. He referred to the judgment in the case of

Bhaskar Laxmanrao kadam Vs. The Additional Collector Nanded and

others 2013 (6) Mh. L.J 613, and vehemently argued that voting by

show of hands is a general method while voting by secret ballot is an

exception. He also relied on the case of Shital Sudhir Sonavle Vs. 10 906 & 007 W.P. 613-204.odt

Group Gram Panchayat Vaghoshi and others 2003(3) Mh.L.J.565 and

argued that no specific procedure for proposing and seconding motion

is prescribed by Bombay Village Panchayats Sarpanch and Upa-

Sarpanch (No Confidence Motion) Rules, 1975. Members seeking

motion need to give only two separate notices in the form to Tahsildar.

He relied on the case of Gulab Pandu Chavan Vs. State of Maharashtra

and others 2015 (5) Mh.L.J. 113 and argued that the question of a

proposer and a seconder was directly involved in this case. This Court

answered that Rule 17 of the Rules, 1959, in relation to Section 35(3)

of M.V.P. Act, is held to be directory in nature and not mandatory.

When more than 1/3rd of the members of the Grampanchayat have

moved the notice introducing the motion of 'no-confidence', a proposer

and seconder are not held to be mandatorily required. Again, on the

point of the method of voting in a no-confidence motion meeting, he

relied on the case of Kishor Ramchandra Phalak Vs. Vilas Damodhar

Mahajan and others 1997(3) Mh.L.J. 27. It has been held that the

Rules 1959 are applicable to the meetings of no-confidence motion. He

further relied on the case of Jivan Somarya Tahkare Vs. Additional

Collector, nandurbar and others 2015(3)Mh.L.J. 590 . In this case, it

has been held if a member chooses to remain silent and does not desire

to speak, Section 35 cannot be interpreted to mean that every member 11 906 & 007 W.P. 613-204.odt

shall be compelled to speak. He also relied on the case of Nimba

Rajaram Mali Vs. Collector Jalgaon and others 1998 (3) Mh.L.J. 204 .

In this case, it has been held that though the grounds of No Confidence

Motion are required to be incorporated in the notice, the precision or

specification of giving details of such reasons is not a prerequisite of a

No-Confidence Motion. Alleged vagueness in reasons given in notice

does not invalidate notice as well as motion passed on such notice. He

also relied on the judgment in the case of Mohan Vijay Murtadak and

others Vs. District Collector, Ahmednagar and others Writ Petition No.

11235 of 2023, dated 02.01 2024 delivered by me and argued that

the essential requirement of a No-Confidence Motion is that the party

against whom such motion has been passed has ceased to enjoy the

confidence of the requisite majority of members. Therefore, the subject

or allegations levelled against him or them are immaterial, and only

the Rule of majority is material.

7. Hearing both sides at length, the following points fall for

consideration:-

(i) Which Rules, i.e. the Rule of Village Sarpanch election Rules or Rules of 1959, apply to the meeting of a no-confidence?

(ii) Are the proposer and seconder the essential requirements for passing the motion of a no-confidence?

12 906 & 007 W.P. 613-204.odt

(iii) Is the Presiding Officer bound to invite the members to vote by secret ballots?

(iv) Was it essential to the Presiding Officer to pass the specific order on the request of the petitioners to have voting by secret ballots?

(v) Has the rights of petitioners been violated, and resultantly, was the resolution vitiated for not considering Rules 21, 22, and 26 of the Meetings Rues 1959?

(vi) Whether the opportunity of being heard was granted to the petitioners to make their submissions in the meeting?

As to point No.1:-

8. In various judgments, this Court has decided this point. Rule 17

of Rule 1959 speaks about the procedure for considering the motion as

the meeting of no-confidence against the Sarpanch or the Upa-

Sarpanch. It also prescribes for commencement of the motion by

speech by formal motion after the motion is duly seconded. In other

words, it may be stated that it prescribes the procedure for opening the

subject. A proposer should move the subject, and the seconder should

second it. The question is whether this Rule is mandatory or directory.

In the case of Vijay Ramchandra Katkar (supra), this Court held that

Rule 17 was mandatory. However, this question was referred to the Full

Bench of this Court in the case of Vishwas Pandurang Mokle Vs. Group

Gram Panchayat Shihu and others 2011(3) Mh.L.J . In this case,

considering the question regarding which Rule of meeting applies to 13 906 & 007 W.P. 613-204.odt

the meeting of a no-confidence, the Full Bench answered that the

provisions of the Meeting Rules 1959 generally and provisions of Rule

17 in particular apply to a meeting convened under Section 35. The

Court has unequivocally observed in paragraph No. 18 that we are not

deciding the question as to what is the consequence in relation to the

validity or otherwise of a motion of no confidence being passed against

Sarpanch or Upa-Sarpanch in violation or without following a

particular Rule. That question will have to be decided in each case

after considering the nature of the provisions, whether the provision is

mandatory or directory. The Full Bench has explicitly left the question

of the consequences of not following Rule 17, open. It decided that

Rule 17, in particular, applied to the meeting convened under Section

35 of the no-confidence motion. However, whether Rule 17 is

mandatory or directory was again referred to the Full Bench of this

Court in the case of Tatyasaheb Ramchandra Kale Vs. Navnath

Tukaram Kakde and others (supra). It has been argued by the learned

counsel for the petitioners that Rules 21, 22 and 26 are about speaking

and addressing the speech of the members. The simple question is

whether the discussion on the subject in the meeting is mandatory and

whether it must be proposed and seconded. The proposing and

seconding of the subject has been specifically provided in Rule 17. In 14 906 & 007 W.P. 613-204.odt

the said case, the cases of Vishnu Ramchandra Patil Vs. Group Gram

Panchayat, Kharivli and others 2013(3) Mh.L.J. 133 . Viswas Pandurang

Mokal (supra) and Vijay Katkar (supra) were considered. Referring to

the relevant provisions of law, this Court has ruled that the

requirement of Rule 17 in proposing and seconding a motion is

directory. It cannot impinge upon the validity of the motion of no

confidence, which is passed by fulfilling the requirement of Section

35(3). Referring to this pronouncement, this Court, in the case of

Gulab Pandu Chavan (supra), has reiterated the view of the Full Bench

and observed in paragraph No.21, which reads thus:-

"21. As such, Rule 17 in relation to Section 35(3) of MVP Act is held to be directory in nature and not mandatory. When more than 1/3rd of the members of the Grampanchayat have moved the notice introducing the motion of no confidence, a proposal and a seconder is not held to be mandatorily required".

9. So far as the objection as regards the discussion of the subject in

the meeting, the Hon'ble Supreme Court, in the case of Babubhai

Muljibhai Patel vs. Nandlal Khodidas Barot and others AIR 1974 S.C.

2105, held that a no-confidence motion in the Council of Ministers is

distinct from a censure motion, whereas a censure motion must set out

the grounds or charge on which it is based and is moved for the 15 906 & 007 W.P. 613-204.odt

specific purpose of censuring the Government for certain policies and

actions, a motion of no-confidence need not set out any ground on

which it is based. Even when grounds are mentioned in the notice and

read out in the House, they do not form part of the no-confidence

motion.

10. The various judgments have been rendered on the subject in

different cases. The Rule of majority, as required under Section 35(3)

was the backbone of the no-confidence motion. In the case of Nimba

(supra), the Division Bench of this Court reiterated that alleged

vagueness in reasons given in the notice does not invalidate the notice

nor the motion passed on such notice. It has been held that the Rule of

majority is the test to decide no confidence. In this case, the case of

Babubhai Patel ( supra) was also referred to and considered.

11. So far as the arguments of the prescribed proforma of notice is

concerned, Rules 1975 provides for the form of notice of motion of no

confidence.

12. Comparing the form with the notice submitted to the Tahsildar,

there appears to be no mistake in the notice of no-confidence motion.

The notice submitted to the Tahsildar was written clearly in Marathi.

16 906 & 007 W.P. 613-204.odt

There was a declaration about the truthfulness of the facts stated in the

notice of their information and knowledge. Such a declaration is

required to bind the parties making the representation or submitting

any document in the Court or before the authority to know that they

have consciously made the allegations or submissions in such

document or petition. This Court did not find any mistake in the notice

of a no-confidence motion submitted to the Tahsildar.

13. The written submissions were placed on record by the

petitioners against the notice to the Tahsildar. The resolution is very

specific that the Tahsildar/ Presiding Officer invited the members

present in the meeting whether anybody wanted to say anything. The

petitioners had submitted their written submissions with evidence and

photographs. He also asked the members whether any of them wanted

to see the papers. This indicates that the submissions were put up

before members present in the meeting. However, no member took

cognizance; therefore, as per the procedure, the Presiding Officer put

up the motion for voting by showing hands. There is no force in the

argument of the learned counsel for the petitioners that the

opportunity of hearing and submissions was not granted to them in the

meeting.

17 906 & 007 W.P. 613-204.odt

14. Without going into the details, the law is very settled about

voting by raising the hands or by mouth, unless the majority demands

voting by secret ballots. It is not the duty of the Presiding Officer to

invite all the members to demand secret ballot voting. The objections

that the petitioners raised have already been set at rest by various

judicial pronouncements referred to above. The resolution was free

from infirmity and any procedural or legal defect. It was the resolution

passed by the majority as required under no-confidence motion Rules.

Though the Collector did not assign the reasons, he has tested the

legality and validity of the resolution in pursuance of Section 35(3) of

the Maharashtra Village Panchayats Act, 1958.

15. The point No.1 is answered that Rules 1959 would apply to the

meeting of a no-confidence motion. Point No. 2 is answered that

proposer and seconder are required to discuss the subject of the no-

confidence motion. Point No.3 is answered that the Presiding Officer is

not bound to invite the members present in the meeting of the no-

confidence motion to demand the voting by secret ballots. Point No.4 is

answered that it was not essential for the Presiding Officer to pass the

specific orders on the written application for voting by secret ballots if

the majority did not ask for it. Point No. 5 is answered that the rights 18 906 & 007 W.P. 613-204.odt

of the petitioners were not violated, and the meeting was not vitiated

for not following Rules 21, 22, and 26 of Rules 1959. Point No. 6 is

answered that the hearing was granted to petitioners in the meeting.

16. The impugned resolution of no confidence and orders of the

Collector are free from infirmity, illegality and perversity. Hence, both

Writ Petitions stand dismissed. No order as to costs.

The rule stands discharged.

17. The learned counsel for the petitioners submits that some

breathing time may be granted to approach the Hon'ble Supreme

Court. Till then, the authority may be restrained from proceeding with

the appointment of new Sarpanch and Upa-sarpanch of the village.

The grounds that have been raised have already been answered by this

Court in various pronouncements, and this Court did not find

substance and merit in the case. Hence, this Court is of the view that

this is not a fit case to stay the order of this Court as prayed. The

prayer thus stands rejected.

( S. G. MEHARE ) JUDGE ysk