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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
Writ Petition No.2574 Of 2008
* Kathalu S/o Maroti Hatagale ]
Age 32 Yeas, ]
Occupation agriculture ]
R/o. Sawargaon, Taluka Manwat, ]
District Parbhani. ] .. Petitioner.
Versus
1) The State of Maharashtra ]
Through Tahsildar Manwat. ]
2)
The Additional Collector,
Parbhani.
]
]
]
]
3) Divisional Commissioner, ]
Aurangabad. ]
]
4) Ranjana W/o Manikrao Jadhav, ]
Age Major, ]
Occupation Household ]
]
5) Chandrakala Vaijanathrao Ghatul, ]
Age Major, ]
Occupation Household, ]
]
6) Munjabhau s/o Bhanudasrao Jadhav,]
Age Major, ]
Occupation Agriculture ]
]
7) Laxman S/o Gangaram Tarpale ]
Age Major, ]
Occupation Agriculture. ]
]
8) Sundar S/o Sitaram Sakhare, ]
Age Major, ]
Occupation agriculture. ]
]
9) Chandatai w/o Manikrao Sonnekar, ]
Age Major, ]
Occupation Agriculture ]
All Residents of Sawargaon, ]
Taluka Manwat, District Parbhani ] .. Respondents.
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...
Shri. R.J. Nirmal, Advocate, for the petitioner.
Shri. S.P. Daund, Assistant Government Pleader, for
respondents Nos.1 to 3.
Shri. V.D. Salunke, Advocate, for respondents Nos.4 and
5.
Shri. P.P. More, Advocate, for respondents Nos.6 to 9.
...
With
Writ Petition No.2743 Of 2008
*
Laxman S/o Gangaram Tarpale ]
Age Major, ]
Occupation agriculture ]
R/o. Sawargaon, Taluka Manwat, ]
District Parbhani. ] .. Petitioner.
Versus
1) The State of Maharashtra ]
Through Tahsildar Manwat. ]
]
2) The Additional Collector, ]
Parbhani. ]
]
3) Divisional Commissioner, ]
Aurangabad. ]
]
4) Ranjana W/o Manikrao Jadhav, ]
Age Major, ]
Occupation Household ]
]
5) Chandrakala Vaijanathrao Ghatul, ]
Age Major, ]
Occupation Household, ]
]
6) Munjabhau s/o Bhanudasrao Jadhav,]
Age Major, ]
Occupation Agriculture ]
]
7) Kathalu S/o Maroti Hatagale ]
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Age Major, ]
Occupation Agriculture. ]
8) Sundar S/o Sitaram Sakhare, ]
Age Major, ]
Occupation agriculture. ]
]
9) Chandatai w/o Manikrao Sonnekar, ]
Age Major, ]
Occupation Agriculture ]
All Residents of Sawargaon, ]
Taluka Manwat, District Parbhani ] .. Respondents.
...
Shri. R.J. Nirmal, Advocate, for the petitioner.
Shri. S.P. Daund, Assistant Government Pleader, for
respondents Nos.1 to 3.
Shri. V.D. Salunke, Advocate, for respondents Nos.4 and
5.
Shri. P.P. More, Advocate, for respondents Nos.6,8 & 9.
...
CORAM: NARESH H. PATIL, J.
Judgment reserved on : 16th June 2008
Judgment pronounced on: 09th July 2008.
JUDGMENT:
1) Heard learned counsel for the parties.
2) As in both these writ petitions identical
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questions of law are involved the petitions are decided by
this common judgment.
3) Rule. By consent of the learned counsel appearing
for the parties Rule is made returnable forthwith and
taken up for final hearing.
4) The petitioner in Writ Petition No.2574 of 2008
challenges the judgment and order dated 14-3-2008 passed
by the
Divisional Commissioner
No.2007/DB/Desk-2/ZPVP/Appeal-CR-143
Aurangabad in
while the petitioner
Appeal
in Writ Petition No.2743 of 2008 challenges the judgment
and order dated 14-3-2008 passed by the Divisional
Commissioner Aurangabad in Appeal No. 2007/DB/Desk-2/
ZPVP/ Appeal-CR-144.
5) The petitioners contend that they issued two
separate notices dated 18-10-2007 for carrying no
confidence motion against respondents Nos.4 and 5 – the
Sarpanch and Upa-Sarpanch respectively of Village Gram
Panchayat Sawargaon, Taluka Manwat, District Parbhani. In
a special meeting held on 23-10-2007 the motion of no
confidence was passed against the Sarpanch and
Upa-Sarpanch by two-thirds majority. Out of seven members
of the Gram Panchayat five members attended the special
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meeting.
6) Respondents Nos.4 and 5 challenged the said motion
of no confidence by separate appeals under Section 35-C of
the Bombay Village Panchayats Act, 1958 before the
Additional Collector Parbhani. By orders dated 5-12-2007
the Additional Collector Parbhani dismissed these appeals.
Being aggrieved by the judgments and orders of the
Additional Collector Parbhani respondents Nos.4 and 5
preferred two separate appeals before the Divisional
the
Commissioner Aurangabad. Both the appeals were allowed by
Divisional Commissioner and the no confidence motion
which was passed against respondents Nos.4 and 5 was set
aside as illegal and invalid.
7) The learned counsel appearing for the petitioners
submitted that the Sarpanch and the Upa-Sarpanch lost the
confidence and by two-thirds majority the no confidence
motion was passed. The notice of no confidence motion was
forwarded to the Tahsildar in accordance with law. The
Commissioner erred in declaring the no confidence motion
as illegal on the ground of non compliance of the
mandatory provisions of the Bombay Village Panchayats
Sarpanch and Upa-Sarpanch (No Confidence Motion) Rules,
1975 (hereinafter referred to as “the Rules, 1975”).
Reliance is placed on the reported judgment - Prabhawati
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Vijaykumar Khivsara v. State of Maharashtra, 2008 (2)
Mh.L.J. 274.
8) The learned counsel appearing for respondents
Nos.4 and 5 has placed reliance on the reported judgments
- B.K. Garad v. Nasik Merchants Co-op. Bank. Ltd., AIR
1984 SC 192 and Secretary, State of Karnataka Vs.
Umadevi, 2008 ALL SCR 134 in support of the contention
that the provisions of law must receive such construction
as would advance the purpose and intendment underlying the
provisions.
Therefore,
The
its
Rules,
violation
1975 have
would
statutory
entail
force.
adverse
consequences. As two separate notices were not given, the
no confidence motion itself was vitiated, according to the
counsel.
9) The Divisional Commissioner allowed the appeals on
the ground of non compliance of Rule 2 of the Rules, 1975.
Rule 2 reads as under :-
“2.(1) The members of a panchayat who desire
to move a motion of no-confidence againstthe 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.”
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(2) . . .
(3) . . .”
The Form of notice of motion of no confidence is
prescribed under the Rules, 1975 which reads thus:-
Place ..............
Date ..............
To
The Tahsildar,
..............
Sir,
We, the undersigned members of the village
panchayat of ............ give you notice
that we propose to move a motion of
no-confidence against the Sarpanch
Upa-Sarpanch ........... in the meeting of
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the panchayat for the following reasons :–
……………………………………..
……………………………………..
……………………………………..
……………………………………..
We declare that the facts stated above are
true to the best of our information and
knowledge.
Name of member
ig Signature
1................. 1 .................
2................. 2 .................
3................. 3 .................
4................. 4 .................
5................. 5 ................."
10) It is true that rule 2 provides that when
members desire to move no confidence motion against the
Sarpanch as well as Upa-Sarpanch they shall give two
separate notices.
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11) In the present matter the petitioners and other
members had given two notices on 18-10-2007 addressed
to the Tahsildar. The first notice was received by the
Tahsildar on 18-10-2007 and another notice was received
on 19-10-2007. Two separate endorsements were made by
the Tahsildar on these two different notices of no
confidence motion. The meeting was called by the
Tahsildar to discuss these motions on 23-10-2007 and,
according to the Divisional Commissioner, out of seven
members five members of the panchayat attended the
special
the
meeting held on 23-10-2007 and participated in
deliberation. The motion of no confidence was
passed by two-thirds majority. Certainly the Sarpanch
and Upa-Sarpanch lost confidence of the majority of the
members which is essential in a democratic set up. The
issue raised by the Sarpanch and the Upa-Sarpanch is
that the procedure as laid down under the Rules, 1975
was not followed, therefore, the no confidence motion
would become ineffective and inoperative. The Rules
1975 prescribe that in case no confidence motion is to
be tabled two separate notices have to be given. The
petitioners and other members had forwarded identical
texts of motion of no confidence twice which they were
to institute against the Sarpanch and the Upa-Sarpanch.
The communication of motion of no confidence bears the
same date i.e. 18-10-2007 but they were received by
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the authority on different dates. Merely having
reference to Sarpanch and Upa-Sarpanch in one and the
same notice should not provide a ground to get the no
confidence motion set aside which was passed with
sufficient majority. The will of majority in the
democratic set-up is required to be given its due
weightage. Obviously, there is no doubt that the
Sarpanch and the Upa-Sarpanch had lost majority. I
place reliance on the observations of the Division
Bench of this Court in Nimba Rajaram Mali vs.Collector,
Jalgaon, 1998 (3) Mh.L.J. 204 in para 13 :
“13. In a democratic society what is
important is he will of the majority and the
elected representatives must honour the will
of the majority. It is immaterial toanalyse and debate on the reasons behind the
will of he majority or the specific reasonsfor such will being expressed. The will of
the majority is of paramount importance and
it must be respected by all elected
representatives responsible for the
governance of such democratic institutions.
As observed by the Apex Court in the case of
Babubhai (supra), resolution of No
Confidence Motion is different from Censure
Motion and such a resolution cannot be
faulted on the ground that there were no
reasons or reasons were vague and lacked
detailed specifications. Once theresolution 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
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(11)of No Confidence Motion, there was flagrant
violation of any of mandatory procedure laid
down, such a resolution cannot be inferred
with by the Court or statutory authoritiesadjudicating such disputes. ……”
12) I do not find that there was flagrant violation
of mandatory procedure for declaring the no confidence
motion to be bad in law. The Sarpanch and Upa-Sarpanch
who lost majority ought to have respected the mandate.
I do not find any prejudice caused to the respondents
Nos.4
adopted
and 5
in the facts of this case.
by the Divisional Commissioner based on rule 2
The view
of the Rules, 1975, in the facts of this case, is not
sustainable.
13) The writ petitions therefore require to be
allowed.
14) The impugned judgments and orders dated
14-3-2008 passed by the Divisional Commissioner
Aurangabad in Appeal No.2007/DB/Desk-2/ZPVP/Appeal-CR-
143 and Appeal No.2007/DB/Desk-2/ZPVP/Appeal-CR-144 are
quashed and set aside.
15) It is declared that the no confidence motions
were validly passed in the meeting held on 23-10-2007
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against the Sarpanch and Upa-Sarpanch – respondents
Nos.4 and 5 respectively.
16) Rule is made absolute in the above terms with
no order as to costs.
(NARESH H. PATIL, J.)
rsl/ wp.2574.08
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