Appa vs State on 2 July, 2009

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                      BENCH AT AURANGABAD.




                                                                         
                      WRIT PETITION NO.4096 OF 2009

           Appa s/o Munjaji Pawar




                                                 
           age 33 yrs, Occ. Agri,
           r/o Salapuri, Tq. & Dist. Parbhani.             PETITIONER.

                 V E R S U S 




                                                
     1.    The Divisional Commissioner, 
           Aurangabad Division, Aurangabad.




                                      
     2.    The Additional Collector,
           Parbhani, Dist. Parbhani.
                     
     3.    The Presiding Officer (Tahsildar),
           Tahsil Office, Parbhani.
                    
     4.    Chaitanay s/p Shivajirao Ghatge,
           age major, Occ. Agri.
      

     5.    Deepak s/o Uttamrao Ghatge,
           age major, occ. Agri.
   



     6.    Madhukar s/o Vishvanath Ghatge,
           age major, Occ. Agri.





     7.    Madhavrao s/o Marotrao Ghatge,
           age major, Occ. Agri.

     8.    Bhaskar s/o Haribhau Hurgule,
           age major, Occ. Agri.





     9.    Smt. Shobha w/o Vaijinath Pawar,
           age major, Occ. Household.

     10.   Sow. Ratubai Ramrao Rathod,
           age major, Occ. Household.

     11.   Sow. Neelabai w/o Tukaram Dhanure,
           age major, Occ. Household.




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            Respondents No. 4 to 11 are r/o 

Salapuri, Tq. & Dist. Parbhani. RESPONDENTS.

Shri B.N. Gadegaonkar, Advocate for the petitioner.
Shri S.D. Kaldate, AGP for the respondent 1 to 3.

Shri G.R. Sayyed & S.R.Ghatge, Advocate for resp. No. 4 to

10.

CORAM : B.R. GAVAI, J :

                                                    DATE      : 2nd JULY, 2009

     ORAL JUDGMENT :-




                                           

1. By way of present petition, the petitioner challenges the

order passed by the learned Divisional Commissioner, Aurangabad

dated 19.06.2009 thereby dismissing the appeal filed by the present

petitioner challenging the order passed by the Additional Collector

dated 19.05.2009, vide which dispute filed by the present petitioner

challenging the ‘no confidence motion’ dated 21.03.2009 came to be

rejected.

2. Shri Ghatge, the learned counsel appearing on behalf of

the petitioner submits that, Rule 7 of the Bombay Village Panchayat

Rules, 1959 requires that notice of the meeting has to be served

personally on the members and in his absence upon, an adult

member of the family residing with member. It is submitted that

only in the event that such members are not available it can be

served by affixing the notice on the conspicuous part of the house.

3. Shri Ghatge placed reliance on the judgment of Division

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Bench of this Court in the case of Ashok Krishnakant Mehta v/s State

of Maharashtra and others reported in 2000 (4) Mh. L. J. and the

judgment of the single Judge of this Court in the case of Indubai Vedu

Khairnar v/s State of Maharashtra and others reported in 2003 (2)

Bom C.R 239 and Bhima Narayan Gangurde and others v/s State of

Maharashtra and ors reported in 2002 (1) Bom C.R. 186.

4. Shri G.R. Sayyed the learned counsel appearing on

behalf of the respondents on the contrary submits that the resolution

has been passed by the requisite majority and merely because there

are certain technical lacuna’s, cannot be a ground for upsetting the

motion of no confidence passed by the members.

5. The six members of the grampanchayat had tendered

notice of no confidence motion to the Tahasildar. Accordingly

Tahasildar conveyed a meeting for no confidence motion on

19.03.2009. In the said meeting 7 members out of 9 were present.

All seven members supported the motion for no confidence and

accordingly resolution came to be passed. The authorities have

concurrently held that though notice was duly served on the present

petitioner, he did not remain present.

6. The single judge of this Court in the case of Prabhawati

Vijaykumar Khivsara and anr. Vs/ State of Maharashtra and ors.

Reported in 2008 (3) Bom. C.R.755 relied on the judgment of the Apex

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Court in the case of K. Narasimhiah Vs. H.C.Singri Gowda,AIR 1966

S.C. 330 has held that

“unless prejudice could be said to have been caused on

account of procedural requirement, the court should not

interfere in the motion of no confidence.”.

While deciding the said petitions this Court has also relied on the

observations of the Division Bench of this Court in the case of Smt.

Annapurnabai Ajabrao Vs. Annapurnabai Anandrao, 1967 Mh. L. J

NOC 36.

7. It appears that the learned judges in the Division Bench

and the two learned single judges who have decided aforesaid three

matters relied upon by Shri Ghatge, have not noticed the judgment

of Division Bench of this Court in the case of Smt. Annapurnabai

Ajabrao cited supra. It further appears that the Division Bench and

the learned Single Judges also have not noticed the judgment of the

Apex Court in the case of K. Narasimhiah Vs. H.C.Singri Gowda,AIR

1966 S.C. 330 cited supra.

8. The Division Bench of this Court in the case of (Smt.

Annapurnabai Ajabrao Vs. Annapurnabai Anandrao) reported in 1967

Mh.L.J. NOC 36, while considering the challenge to the regularity

of the proceedings of the meeting held to consider the resolution of

no-confidence motion against the Sarpanch, observed thus :

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“Even if it were to be assumed that there was some
technical flaw in the proceedings of the meeting or in

transmission of the results of the meeting to the
Panchayat Samiti, we do not see how that could entitle

the petitioner to claim to continue as Sarpanch of the
Gram Panchayat. A Gram Panchayat is essentially a
democratic institution which must be run on democratic

principles. When the majority of the members have
clearly expressed that they do not desire the petitioner to

be their leader and Sarpanch, appropriate attitude of the
petitioner as a person working for democracy whatever

have been to tender her registration straightway. At any
rate, it does not behave of democratic spirit to challenge

the decision of the majority who unmistakably declared
their want of confidence in their erstwhile leader.
Democratic principles as has also a sense of self respect

should have been impleaded the petitioner and persons

situated in similar circumstances to graciously submit to
the decision of the majority and to walk out of the Gram

Panchayat.”

It can thus be clearly seen that the Division Bench in the case cited

supra has clearly held that when a person has lost confidence of

majority, he has no right to continue in the post of Sarpanch by

raising some hyper technical ground. In a democratic society will of

the majority is paramount. If view taken by the Division Bench in

the case of Annapurnabai is not accepted, it will create a chaotic

condition, like in the present case though 7 members are against

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the petitioner and if he is thurst against the wishes of majority as

their leader and continue to permit to work as Sarpanch, entire

functioning of the Grampanchayat would come to a standstill,

thereby causing a grave difficulties in the functioning of the

Grampanchayat.

9. As already discussed above, the said judgment has not

been noticed by the Division Bench and Single Judges on the

judgments of whom Shri Ghatge relies. The Division Bench in the

case of Nimba Rajaram Koli vs. Collector, Jalgaon 1998 (3) Mh.L.J. ,

relying on the case of Annapurnabai Ajabrao has also held

“that once resolution of the 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.”

It is difficult to appreciate that when all other members have

received notice of no confidence motion, it is only the petitioner

who has not received the notice of no confidence motion. The

petitioner and all other members are residents of a same village. In

any case, notice has been served by the Tahasildar. No allegations of

malafide or bias have been made against the Tahasildar that the

notice of meeting was not properly served on the petitioner by the

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Tahasildar with an ulterior motive.

10. At the cost of repeatation, I must say that, in

consonance with the view taken by the aforesaid two Division

Benches in the case of Annapurnabai Ajabrao and Nimba Rajaram in

a democratic State it is .the will of majority that must prevail. Once

a person looses the confidence of a majority, as required under the

statute, he has no right to continue in the office and thurst himself

against the wishes of the majority of the members.

11.

In that view of the matter, no case is made out for

interference with no confidence motion which has been passed by

the requisite majority of more than 2/3 members. Hence no

interference is warranted in exercise of extra ordinary jurisdiction of

this Court under Article 227 of the Constitution of India. The

petitioner is therefore, rejected.

( B. R. GAVAI )
JUDGE

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aaa/wp4096.09

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