JUDGMENT
V.P. Tipnis, J.
1. By this writ petition filed under Article 226 of the Constitution of India the petitioners are seeking a writ or direction restraining the Collector of Dhule, the Commissioner, Nasik Division, Nasik and the State of Maharashtra from making any order under section 145 of the Bombay Village Panchayats Act, 1958, or otherwise dissolving and/or superseding the Village Panchayat of Chikase, Taluka Sakri, District Dhule. It is further prayed that a direction be issued to the aforesaid three authorities to hold bye-elections for filling in the vacancies of respondent No.1 village panchayat caused by the resignations of five members thereof in accordance with the provisions of section 43 of the Bombay Village Panchayats Act.
2. It is averred in the petition that petitioner No. 1 is the Sarpanch while petitioners 2 to 5 are members of the Village Panchayat of Chikase, Taluka Sakri, District Dhule, which is constituted as a body corporate under section 9 of the Bombay Village Panchayats Act. The total strength of the said village panchayat consists of nine elected members, in addition to one who is the Chairman of the Pimpalner Adivasi Seva Society Limited, Pimpalner, Taluka Sakri, District Dhule. The present body was elected in the month of August 1988 and petitioner No. 1 was thereafter unanimously elected as Sarpanch on 9th September, 1988. On 6th of March, 1990, four members of the said village panchayat tendered their resignations which were accepted by the duly constituted meeting of the village panchayat held on 13th of March, 1990. Thereafter on 22nd of May, 1990, one more member of the village panchayat tendered her resignation. The said resignation was accepted in a panchayat meeting held on 23rd of May, 1990. The petitioners contended that the second meeting accepting the resignation on 23rd of May, 1990 was attended only by four members and as such it was without the requisite quorum of five member, and her resignation could not have been accepted. It is further averred in the petition that as a result of the above five members resigning their membership, the remaining five members i.e. four elected members and one in the capacity of Chairman of the Pimpalner Adivasi Seva Society Limited, continued as members of the village panchayat. Petitioners have further averred that the Collector, the Commissioner and the State of Maharashtra are contemplating taking action under the provisions of section 145(1A) of the Act by dissolving the said village panchayat.
3. It is contended in the petition that there are nine elected members and one member as Chairman of the Pimpalner Adivasi Seva Society Limited. Thus, according to the petitioners, the total strength of the members of the village panchayat ought to be counted as 10 members. Even if five members have resigned, still five members continued and as such it cannot be said that more than half the seats have fallen vacant and no action can be taken under the provisions of section 145 of the Act. The collector has not taken any proceedings for filling in the vacancies under section 43 of the Act. The petitioners reliably apprehend that the authorities are bent upon taking action under section 145 of the Act which purported action, according to the petitioners, is clearly illegal. On these averments the petitioners have preferred the present writ petition and prayed for the reliefs mentioned earlier.
4. The petition is opposed on behalf of the State Government by filing a return as also by the five members of the panchayat who have resigned. The names of the five members were added subsequently . They have been represented by their counsel before us. In the affidavit on behalf of the State Government it is contended that the strength of the Village Panchayat of Chikase is only nine which are elected members. When five elected members have resigned the strength of the elected members of the gram panchayat has been reduced to less than 50 %.The 10th co-opted member has no right to vote in any meeting and, therefore, though he can be counted to form the quorum, the business of the panchayat cannot be transacted validly only by the remaining four members. It is further mentioned in the affidavit that in these circumstances on the basis of resignation of more than 50 % of the elected members, whether any action under provisions of section 145 of the Bombay Village Panchayats Act is to be taken or not is to be decided by the Commissioner, Nasik Division, Nasik, and no such action is as yet taken.
5. We have heard Shri Gole for the petitioners, Shri C.J. Sawant for the added respondents, who are members who have resigned from the panchayat, and Shri Gangal, the learned Assistant Government Pleader for the State.
6. Shri Gole, the learned Counsel appearing for the petitioners, contended that on proper reading of provisions of sections 10, 43, 29, 34, 35, and 37 as also the Rules of the Bombay Village Panchayats (Meetings) Rules, 1959, it ought to be held that even a Chairman of a Co-operative Society conducting business in the village relating to agriculture or granting of loans is a member of the panchayat under section 10(1)(a)(ii) and as such he will be counted as member and “seat” for the panchayat under purposes of section 145 of the Bombay Village Panchayats Act. Shri Gole, secondly, submitted that the fifth resignation was not properly accepted by the Village Panchayat inasmuch as only four members were present which did not constitute the requisite quorum. Shri Sawant and Shri Gangal, on the other hand, contended that the word “seat” within the meaning of section 145 of the Bombay Village Panchayats Act will have to be restricted to the elected members under section 10(1)(a)(i) of the Bombay Village Panchayats Act and cannot include the person who takes part in the proceedings of the meeting as under provisions of section 10(1)(a)(ii) of the Bombay Village Panchayats Act. Both of them referred to several sections of the Bombay Village Panchayats Act in support of this contention.
7. In order to decide the controversy it is necessary to make a reference to certain provisions of the Act. Under section 39(a-1) “associate member” is defined as under :—
“Associate member” means a member who is entitled to attend and to take part in the deliberations of a panchayat or Committee, but shall have no right to vote, and shall not be eligible to hold the office of Sarpanch or Upa-Sarpanch.”
Section 10 of the Act is as under :—
“(1) Subject to any general or special order which the State Government may make in this behalf—
(a) A panchayat shall consist of —-
(i) such number of members not being less than seven and not more than fifteen as the Collector may determine, who shall be elected in accordance with section 11;
(ii) the Chairman or Chairmen, of a co-operative society or societies, conducting business in the village relating to agriculture or granting of loans (to be associate member or members).
Explanation– For the purpose of sub-clause (ii) of clause (a), the expression “Chairman” in relation to a co-operative society includes the Administrator appointed to manage the affairs of the society or where more than one Administrator or a committee or corporation is appointed to manage the affairs of the society under sub-section (1) of section 78 of the Maharashtra Co-operative Societies Act, 1960, such person representing the Administrator, committee or corporation as the Collector or any officer authorised by him in this behalf, may direct.
(b) each village shall be divided into such number of wards, and the number of members of a panchayat to be elected from each ward shall be such, as may be determined by the Collector in the prescribed manner.
(2) (a) If, having regard to the population of the Scheduled Castes and the Scheduled Tribes in the village, the Collector is of opinion that reservation of seats is necessary for such Castes and Tribes in the village, there shall be reserved for such Castes and Tribes, in every panchayat such number of seats as may be determined by the Collector in the prescribed manner.
(b) As nearly as may be, thirty per cent of the total number of seats reserved under clause (a) shall be reserved for women belonging to the Scheduled Castes or , as the case may be, the Scheduled Tribes :
Provided that, where only two seats are reserved for the Scheduled Castes or, as the case may be, the Scheduled Tribes, one of the two seats shall be reserved for women belonging to the Scheduled Castes or, as the case may be, the Scheduled Tribes.
(c) Notwithstanding anything contained in clauses (a) and (b), reservation of seats for the Scheduled Castes or the Scheduled Tribes made under these clauses shall cease to have effect on the expiration of the period for the time being specified in Article 334 of the Constitution of India, but the fact that the reservation of seats has so ceased to have effect shall not render any person elected and in office immediately before such cesser ineligible from continuing as a member during the rest of the term to which he was validly elected.
(d) As nearly as may be, thirty per cent (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every panchayat shall be reserved for women for a general election held after the 1st day of July, 1990; and the manner and rotation of such reservation shall be such as may be prescribed by the State Government.
(3) If for any reason an election does not result in the return of the required number of qualified persons willing to take office, the Standing Committee shall, as soon as possible, appoint from persons qualified to be elected, such persons as are necessary to make up the required number, and the persons so appointed shall be deemed to have been duly elected under sub-section (1). The names of members falling under clause (a) of sub-section (1) and also members appointed as aforesaid shall be published by the Collector in the prescribed manner.
(4) Notwithstanding anything in sub-section (1) where two-thirds or more the total number of members required to be elected under sub-clause (i) of clause (a) of sub-section (1) are elected, failure to elect the remaining members shall not affect constitution of the panchayats.”
Section 13-A is as under :—
“If a person is elected to more than one seat in a village panchayat then unless, within the prescribed time he resigns all but one of the seats by notice in writing signed by him and addressed to the Collector or any officer authorised by him in this behalf, all the seats shall become vacant.”
8. Section 29 provides for resignation of a member and disputes regarding resignation. It provides that any member who is elected may resign his office by writing under his hand addressed to the Sarpanch and the Sarpanch may resign his office of member by writing under his hand addressed to the Chairman of the Panchayat Samiti. After the receipt of the resignation the same is required to be placed before the meeting of the panchayat next following. Thereafter if the member or the Sarpanch whose resignation is placed before the meeting wants to dispute the genuineness of the resignation, the dispute is required to be referred to the Collector within seven days from the date on which the resignation is placed before the meeting of the panchayat and the Collector is required to decide the issue, as far as possible, within fifteen days from the date of its receipt. The member or the Sarpanch aggrieved by the decision of the Collector is given right of appeal to the Commissioner who shall again decide the matter within fifteen days, as far as possible, from the date of its receipt. The decision of the Collector is made final. The section further provides that the resignation shall take effect in case where there is no dispute regarding the genuineness, after the expiry of seven days from the date on which it is placed before the meeting of the panchayat and where the dispute is referred to the Collector and no appeal is made to the Commissioner, after the expiry of seven days from the date of rejection of the dispute by the Collector and if the appeal is made to the Commissioner, immediately after the appeal is rejected by the Commissioner.
9. Provisions of section 30 make its clear that every panchayat is presided over by a Sarpanch who shall be elected by the panchayat from amongst its elected members. It also provides that the panchayat shall also elect one of its elected members to be Upa-Sarpanch.
10. Provisions of section 35 provide for a motion of no confidence which may be moved by not less than one-third of the total number of the members (other than associate members) who are for the time being entitled to sit and vote at any meeting of the panchayat against the Sarpanch or the Upa-Sarpanch. Sub-section (3) of section 35 also makes a reference to the total number of members (other than associate members) who are for the time being entitled to sit and vote at any meeting of the panchayat. Section 37 which deals with modification or cancellation of resolution also makes reference to the total number of members of such panchayat (other than associate members). Section 43 provides for filling up of vacancies.
11. Section 145 of the Bombay Village Panchayats Act, 1958, provides for dissolution or supersession of the panchayat. Sub-section (1) provides that —-
“(1) If, in the opinion of the State Government, a panchayat exceeds or abuses its power or is incompetent to perform, or makes persistent default in the performance, of the duties imposed on it or functions entrusted to it … or fails to obey an order made by the Panchayat Samiti . . . or wilfully disregards any instructions given by the Zilla Parishad or Panchayat Samiti under section 152 or by any competent authority arising out of audit of accounts under this Act or . . . instructions given or directions issued by the State Government under section 153-A, the State Government may, after consultation with the Zilla Parishad and after giving the panchayat an opportunity of tendering an explanation, by order in the Official Gazette —-
(i) dissolve such panchayat, or
(ii) supersede such panchayat for the period specified in the order.”
12. Section 145(1-A) provides that if more than half the total number of seats in a panchayat have become vacant, the State Government may, by order in the official Gazette, dissolve such panchayat. Provisions of section 145(2) provide for the consequences of dissolution or supersession as provided by the preceding sub-section. Sub-section (3) provides that when a panchayat is dissolved, it shall be reconstituted in the manner provided in the Act.
13. So far as the submission of Shri Gole regarding invalidity of the action of the Panchayat Samiti in accepting the resignation by the 5th member on the ground that requisite quorum was not there is concerned, we do not think the petitioners can be heard to make this submission. The member who has submitted the resignation does not disputed the genuineness. In fact, she is party respondent to the petition and accepts the resignation as genuine. The said resignation was accepted in a meeting attended by the petitioners themselves. Provisions of section 29 give right to challenge such acceptance only to the member or the Sarpanch who has resigned. Hence we reject the said contention.
14. Shri Gole heavily relied upon provisions of section 37 of the Bombay Village Panchayats Act as also certain Rules known as Bombay Village Panchayats (Meetings) Rules, 1959, and contended that wherever associate member was intended to be excluded the legislature have taken care to mention the same and as provisions of section 145(1-A) does not so exclude the associate member, the word “seats” used in that section must include the associate member as well.
15. We find it difficult to accept this submission of Shri Gole. Provisions of section 145(1-A) make it clear that if more than half the total number of “seats” in a panchayat have become vacant, the State Government may, by order in the official Gazette, dissolve such panchayat. Definition of “associate member” as given in section 3(a-1) shows that it is a member who is entitled to attend and to take part in the deliberations of a panchayat or Committee, but shall have no right to vote, and shall not be eligible to hold the office of Sarpanch or Upa-Sarpanch. Provisions of section 10 provide that a panchayat shall consist of such number of members not being less than seven and not more than fifteen as the Collector may determine, who shall be elected in accordance with section 11; and the Chairman or Chairmen of a co-operative society or societies conducting business in the village relating to agriculture or granting of loans (to be associate member or members). Explanation also further provides that expression “Chairman” for the purpose of sub-clause (ii) of clause (a) in relation to a co-operative society includes the Administrator appointed to manage the affairs of the society or where more than one Administrator or a committee or corporation is appointed to manage the affairs of the society under sub-section (1) of section 78 of the Maharashtra Co-operative Societies Act, 1960, such person representing the Administrator, committee or corporation as the Collector or any officer authorised by him in this behalf may direct.
16. Thus, it is clear that it is elected members alone who are entitled to vote and transact the business of the panchayat effectively whereas Chairman of the co-operative society, who is to be an associate member by the very definition is entitled to attend and to take part in the deliberations of the panchayat but does not have any right to vote and is not eligible to hold the office of Sarpanch or Upa-Sarpanch. Section 145(1-A) makes reference to the “seats” falling vacant. Section 13-A provides that if a person is elected to more than one seat in a village panchayat then unless, within the prescribed time he resigns all but one of the seats by notice in writing signed by him and addressed to the Collector or any officer authorised by him in that behalf, all the seats shall become vacant.
17. Relying on provisions of section 33 and 35 Shri Gole submitted that wherever the legislature intended to exclude “associate members” it is done so specifically by mentioning so. No doubt, in sub-section (5) of section 33 it is provided that in the event of dispute arising as to the validity of he election of a Sarpanch or Upa-Sarpanch under sub-section (1) the officer presiding over such meeting or any member (other than an associate member) may, within fifteen days from the date of the election, refer the dispute to the Collector for decision. It is also true that similar phraseology is found at several places in the provisions of section 35. However, taking into consideration the provisions of section 10 which, in our opinion, makes a clear distinction between number of members elected and the Chairman or Chairmen of Co-operative society or societies who is/are specifically designated as associate member or members, and in view of the fact that the Act specifically defines “associate member” meaning a member who is entitled to attend and to take part in the deliberations of a panchayat or committee but shall have no right to vote and shall not be eligible to hold office of Sarpanch or Upa-Sarpanch, the specific exclusion of associate member in the provisions of section 33 and 35 appears to us by way of abundant caution, as even otherwise, in our opinion, by virtue of definition of associate member and by virtue of provisions of section 10 of the Act, the associate member would not be competent to vote at any meeting of the panchayat.
18. Shri Gole relied upon the decision , Ashok Maniklal Harkut v. The Collector of Amravati. It was held in that case that having regard to the scheme of the Act (namely Maharashtra Municipalities Act), the phrase “total number of Councillors” as used in section 55(3) of the Act can only mean total number of councillors who are entitled to sit and vote at the relevant time and not the total number of seats in a particular council as determined under section 9, i.e. not the sanctioned strength. It was further observed in the said decision that the definition of phrase “total number of councillors” takes in its import the total number of elected, co-opted and nominated councillors of a Council concerned. This is clear from the expressions ‘in relation to a council”, “if any”, “of that council”. It does not deal with total number of seats as determined or fixed under section 9 of the Act. This is further clear from the fact that in the definition even nominated councillors are included. Nomination of councillors is contemplated under section 18, if there is failure to elect a councillor. On his nomination he is deemed to be a councillor elected at an election. Thus nomination is qua a seat meant for elected councillor and not in addition to it. This decision is with reference to several specific provisions of the Maharashtra Municipalities Act and cannot be automatically applied for interpretation of altogether different Act, namely the Bombay Village Panchayats Act. Secondly, it is clear that upon nomination, the nominated member referred to in the said decision is deemed to be a councillor elected at an election. In the facts before us under the provisions of the Bombay Village Panchayats Act, Chairman or Chairmen who are designated as associate member or members under provisions of section 10(1)(a)(ii) by the very definition of associate member under section 3(a-1) of the Act have no right to vote. As such the aforesaid decision of no help to Shri Gole in support of his submission.
19. Shri Gole also relied upon the decision of the Supreme court , Gajanan Narayan Patil v. Dattatraya Waman Patil. The said case deals with interpretation of provisions of the Maharashtra Co-operative Societies Act. The Supreme Court in the said case observed that the right to participate in the special meeting as well as vote for such meeting is a statutory right and it flows from the provisions of the Act, Rules and Bye-laws of the society. It has nothing to do with the democracy. The words “entitled to sit and vote in any meeting of Society” occuring in section 73-1D of the Act refer to, member to sit and vote not in every meeting but in any meeting of the society. The only express bar as provided in section 27 of the Act is that the members, that is, the Director’s representative of the Financial Institutions as well as the Expert Director (co-opted) are not competent to participate only in election of members of the society. The said Directors have been conferred the right to participate in any meeting including the special meeting of the Board of Directors or of the Managing Committee of the Society. Thus, it is clear that excepting at the election of members of the society, the nominated members were entitled to sit and vote at other meetings. In view of this distinguishing feature, this decision also does not help Shri Gole in his submission.
20. In the result, we do not find any substance in the petition and the petition fails. The Rule is discharged. In the circumstances of the case, however, there shall be no order as to costs.