1. These Petitions involve common question of facts and law
and hence by consent heard finally at the stage of admission and
decided by this common judgment.
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2. Facts in the case as indicated from the record show that
Petitioners are Sarpanch and Deputy Sarpanch of Gram Panchayat
Islak, Dist. Ahilyanagar. They are elected members of Gram
Panchayat and further elected as the Sarpanch and Deputy
Sarpanch. Their tenure was for period from the year 2020-2021 to
2025-2026. Seven members of the Gram Panchayat moved a
requisition to Respondent No. 4 for no confidence motion against the
Petitioners. On 01.04.2025, notices were issued to the Petitioners
and other members of the Gram Panchayat conveying a special
meeting for no confidence motion on 04.04.2025. Accordingly, such
meeting was convened on 04.04.2025 and no confidence motion was
passed against the Petitioners. Petitioners, being aggrieved by the
said no confidence motion, challenged the same by filing dispute
before the Collector. Challenge to the said resolution of no confidence
against the Petitioners was done amongst other contentions,
specifically on the ground that the notice was not served on the
Petitioners in accordance with the rules. The Collector refused to
accept the contentions of the Petitioners and rejected the
Applications. Hence, these Petitions.
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3. Learned counsel for Petitioners has drawn attention of
the Court to Bombay Village Panchayats Sarpanch and Upa-
Sarpanch (No Confidence Motion) Rules, 1975. He has made specific
reference to Rule 2(2B) in order to contend that unless the notice is
served upon the Sarpanch or Upa-Sarpanch as contemplated by the
sub-rule, any subsequent action on the basis of such requisition
cannot sustain. He drew attention of the Court to the panchanama
drawn in respect of service of notice by pasting it on the conspicuous
part of the house to argue that said panchanama indicates that in
presence of one witness the alleged act of pasting has been done.
This, according to him, is not permissible in view of the specific
provision which requires affixing of such notice in presence of two
witnesses. He drew attention of the Court to the affidavit-in-reply
filed on behalf of the State which, according to him, indicates that
there is photograph showing the door of the house of the Petitioner
being closed. It is his submission that in such circumstances, the
submission with regard to refusal of notice by the concerned is false.
In any case, according to him, unless said pasting of notice was done
in presence of two witnesses, the notice cannot be said to be served
upon the Petitioner. It is his submission that in absence of service of
notice of meeting held on 04.04.2025, the meeting cannot be held to
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be legal and consequently, resolution passed therein cannot sustain.
To support his submission, he has placed reliance on judgment in
case of Digambar Virbhadra Yesge and Another vs. Additional Collector
and Others, (2018) 5 Bom CR 570.
4. Learned counsel for contesting Respondents as well as
learned AGP supported the impugned order. It is their contention
that the record indicates that the Petitioners have refused to accept
the notice and hence it was open for the authority to affix said notice
on the conspicuous part of the house and this has been done
accordingly. Learned counsel for contesting Respondents has sought
to convince this Court that the authority who had issued the notice
was also present at the relevant time and therefore, it must be held
that affixing of the notice has been done in presence of two
witnesses. To support his submissions, he has placed reliance on
following judgments :-
(i) Chagan Sadashiv Jadhav vs. Manisha Ramnath Bhandare
(2016) 05 BOM CK 0016
(ii) Priyanka Abhijeet Deodhare vs. State of Maharashtra & others
2025 DGLS(Bom.) 601.
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5. Passing of no confidence motion has a drastic
consequence of dislodging the duly elected Sarpanch and Upa-
Sarpanch from their respective posts. Needless to say that while
doing so whatever has been contemplated by the act and the rules
framed thereunder must be followed in strict sense and, if not
followed in the true spirit, it should not have been done at all. It
would be relevant to take note of Rule 2 (2B) of the Rules in this
regard which reads thus :-
2. (2B) 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 delivering or tendering it to any adult
member of his family residing with him; and if no such
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.
6. This rule clearly indicates that in case of service cannot
be effected on the Sarpanch or Upa-Sarpanch, where such person
cannot be found and that if the adult member of the family also
cannot be found, in that case the notice shall be served by affixing it
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in the presence of two witnesses on the outer door or some
conspicuous part of the house. This rule clearly mandates that in
case of non-availability of the Sarpanch or Upa-Sarpanch or any
adult family member or even on account of refusal of notice by them,
appropriate mode of service is to affix the same on the outer door or
the conspicuous part of the house in the presence of two witnesses.
Perusal of panchanama in both Petitions indicate that said affixing of
the notice has not been done in presence of two witnesses. Thus,
there is non-compliance of the mandatory requirement of the said
rule in so far as service of notice of meeting is concerned. The
contention of Respondents is that along with witness the officer
himself was present and hence it must be treated as pasting in
presence of two witnesses. First of all the requirement of rule is the
pasting in presence of two witnesses, which can not include the
officer himself who attempts service of notice. Similarly, the one
witness to the panchanama is also not independent witness. Thus, it
can not be said that there is compliance of rule and hence this
Courts finds no hesitation to reject the said contention.
7. It is sought to be argued on behalf of the Respondents
that service of notice was effected via WhatsApp and it was sufficient
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intimation to the Petitioners of the meeting concerned. First of all,
service of notice through WhatsApp cannot be recognized unless it is
so provided in the rules or in any other law applicable to the
proceeding in question. Thus, even if it is accepted for the sake of
argument that service of notice was effected through WhatsApp, it
cannot be held to be appropriate service in compliance of rules.
8. As a result of above discussion, since the notice was not
served in accordance with the rules, the Petitioners are denied
opportunity of hearing and participation in the meeting. As a
consequence thereof, resolution passed of accepting no confidence
motion against the Petitioners cannot sustain so also the order of the
Collector.
9. Hence, both the Petitions are allowed.
( R. M. JOSHI)
Judge
dyb
