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Bombay High Court
Sau. Ashabai vs Additional Commissioner on 11 September, 2008
Bench: A. B. Chaudhari
                                   1

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH, NAGPUR




                                                                           
                    WRIT PETITION NO. 2212/2007




                                                   
    PETITIONER:-     Sau. Ashabai w/o Ashok Shinde
                     Age : 35 years, Occupation : Sarpancha,
                     R/o Gugli, At Post : Sindhkhed,




                                                  
                     Tq. Motala, Distt. : Buldhana.


                               ...V E R S U S...




                                      
    RESPONDENTS:-
                         
                     1. Additional Commissioner,
                        Amravati Division, Tq. and Distt. : Amravati.
                        
                     2. Additional Collector,
                        Buldhana, Tq. and Distt. Buldhana.

                     3. Tahsildar,
          


                        Motala, Tq. Motala, Distt. Buldhana.
       



                     4. Secretary,
                        Gram Panchayat, Kolhi Gohar, Tq. Motala,
                        Distt. : Buldhana.





                     5. Bhalchandra s/o Shriram Pise

                     6. Sandip s/o Haribhau Tayade





                     7. Sau. Rekha w/o Sudhakar Garwe

                     8. Jeevansingh s/o Divansingh More

                     9. Dilip s/o Supdassingh More




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                                    Respondent No.5 and 7 are R/o Gugli,
                                    At post : Sindhkhed, Tq. Motala,




                                                                                               
                                    Distt. Buldhana, Respondent no.6,8 and 9
                                    are R/o Kolhi Gohar, Tq. Motala,




                                                                       
                                    Distt. : Buldhana.

    -------------------------------------------------------------------------------------------------
                         [Shri A.J. Kadu, Adv. for petitioner]




                                                                      
                         [Smt. T.D. Khade, AGP for respdt. Nos.1 to 3]
                         [Shri K.S. Narwade, Adv. for respdt. Nos.5 to 9]
    -------------------------------------------------------------------------------------------------




                                                        
                                              CORAM:-           A.B. CHAUDHARI, J.
                                       ig     DATED :-          11.09.2008

    ORAL JUDGMENT
                                     

1. This writ petition is directed against an order dated

30.3.2007 made by Additional Collector, Buldhana, dismissing the

dispute that was filed by petitioner Sarpanch in the matter of motion

of no confidence passed against her. In appeal, the said order made

by the Additional Collector was confirmed.

FACTS :

2. Petitioner Sau. Ashabai w/o Ashok Shinde – Sarpanch of

Gram Panchayat Kolhi Gohar and Upa-Sarpanch Tulshiram s/o

Ananda Wagh were elected to their respective offices. On 29.12.2006

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five members of the village panchayat out of seven submitted a

requisition to Tahsildar Motala for calling a special meeting to

consider the motion of no confidence against Sarpanch and

Upa-Sarpanch both for the reasons stated in the said requisition. On

29.12.2006 itself Tahsildar Motala issued a notice of special meeting

to be held on 2.1.2007 at 2:00 p.m. for considering the motion of no

confidence against Sarpanch and Upa-Sarpanch both. As decided, the

special meeting was held and the motion was put to vote against both

Sarpanch and Upa-Sarpanch at a time and out of seven members

present in the meeting, five voted in favour of the motion of no

confidence and thus by two third majority the Presiding Officer

declared motion of no confidence to have been passed against both

Sarpanch and Upa-Sarpanch. Petitioner filed a dispute before the

Additional Collector against the said motion of no confidence under

Section 35 (3-B) of the Bombay Village Panchayats Act, 1958, but the

same was dismissed. The petitioner thereafter filed appeal against the

said order before the appellate authority, namely, Additional

Commissioner, Amravati, which also met the same fate. Hence, this

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writ petition.

SUBMISSIONS :

3. Learned Counsel for the petitioner made the following

submissions :

(i) The requisition that was given to Tahsildar by the

requisitionists is the joint one for both Sarpanch and Upa-Sarpanch,

which was contrary to Rule 2 (1) of the Bombay Village Panchayats

Sarpanch And Upa-Sarpanch (No Confidence Motion) Rules, 1975.

Not only that Tahsildar also issued only one notice of the special

meeting in respect of both Sarpanch and Upa-Sarpanch. According to

him, the said provision of Rule 2 (1) of the Rules is mandatory and

therefore, the motion of no confidence i.e. passed is vitiated.

(ii) The motion of no confidence was put to vote at

one time against both Sarpanch and Upa-Sarpanch and the reading of

the minutes of the said meeting do not reveal separately as to how

many votes were in favour and against the motion against Sarpanch

and Upa-Sarpanch and this happened because of the ambiguity which

crept in. For this reason also therefore, according to him, the

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impugned orders are liable to be set aside.

(iii) He relied on the decision of this Court in the case

of Janardan Shankar Watane…Versus…C.E.O. Zilla Parishad,

Amravati, reported in Notes of Cases, 1965, 49.

4. Per contra, Advocate Shri Narwade for respondent Nos.5

to 9 cited several decisions before me and argued that most of the

rules framed under Section 176 of the Bombay Village Panchayats Act

have been held to be directory by this Court and according to him

even this provision of Rule 2 (1) of the Bombay Village Panchayats

Sarpanch And Upa-Sarpanch (No Confidence Motion) Rules, 1975 on

the same line of interpretation also will have to be held directory. He

cited following decisions before me.

(i) 2004 (2) Mh.L.J. 1004 (Yamunabai Laxman
Chavan and others…Versus…Sarubai Tukaram Jadhav and others).

(ii) 2003 (2) Mh.L.J. 295 (Arjun Sambhaji Khade and
others…Versus…Mangal Ankush Kharmate and others).

(iii) 2003 (1) Mh.L.J. 420 (Durgadas Ukhaji More and
others…Versus…Additional Commissioner, Nashik Division, Nashik
and others).

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(iv) 1998 (3) Mh.L.J. 204 (Nimba Rajaram

Mali…Versus…Collector, Jalgaon and others).

(v) 1967 Mh.L.J. Notes of Cases 21 (Smt.

Annapurnabai Ajabrao…Versus…Smt. Annapurnabai Anandrao).

5. He further argued that admittedly the motion of no

confidence was passed by the requisite two third majority and as held

by this Court as well as Apex Court in a democratic set-up a person

who has lost majority in an elected office must yield to the desire of

the majority and since in the instant case both Sarpanch and

Upa-Sarpanch have lost majority there is no need for the Court to

interfere.

6. A.G.P. Smt. Khade for respondent Nos.1 to 3 supported the

impugned orders.

CONSIDERATIONS:

7. After hearing learned Counsel for the rival parties and

having gone through the relevant provisions and in particular Section

35 of the Bombay Village Panchayats Act, 1958 which reads thus :

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“35. Motion of no confidence :- (1) A

motion of no confidence may be moved by not less than
[one-fifth] of the total number of the 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 after giving such notice thereof to the

Tahsildar as may be prescribed. [Such notice once given
shall not be withdrawn].

(2) Within seven days from the date of receipt by

him of the notice under sub-section (1), the Tahsildar

shall convene a special meeting of the Panchayat for
considering the motion of no confidence at the office of
the Panchayat at a time to be appointed by him and he

shall preside over such meeting. At such special

meeting, the Sarpanch, or the Upa-Sarpanch against
whom the motion of no confidence is moved shall have
a right to speak or otherwise to take part in the

proceedings at the meeting (including the right to
vote).

(3) If the motion is carried by [a majority of not
less than two-third of] the total number of the members
who are for the time being entitled to sit and vote at

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any meeting of the Panchayat the Sarpanch or the

Upa-Sarpanch, as the case may be, shall cease to hold
office after seven days from the date on which the

motion was carried unless he has resigned earlier or has
disputed the validity of the motion so carried as
provided in sub-section (3-B); and thereupon the office

held by such Sarpanch or Upa-Sarpanch shall be
deemed to be vacant.

[Provided that, where the office of the Sarpanch being

reserved for a woman, is held by a woman Sarpanch,

such motion of no-confidence shall be carried only by a
majority of not less than three-fourth of the total
number of the members who are for the time being

entitled to sit and vote at any meeting of the

panchayat:];

[Provided further that,] no such motion of

no-confidence shall be brought within a period of six
months from the date of election of Sarpanch or
Upa-Sarpanch.

(3-A) If the motion [is not moved or is not carried]
by [a majority of not less than two-third of [or, as the

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case may be, three fourth, of] the total number of the

members who are for the time being entitled to sit and
vote at any meeting of the Panchayat, no such fresh

motion shall be moved against the Sarpanch or, as the
case may be, the Upa-Sarpanch within a period of [one
year from the date of such special meeting].

(3-B) If the Sarpanch or, as the case may be, the

Upa-Sarpanch desires to dispute the validity of the
motion carried under sub-section (3), he shall, within

seven days from the date on which such motion was

carried, refer the dispute to the Collector who shall
decide it as far as possible, within fifteen days from the
date on which it was received by him; and any such

decision shall, subject to an appeal under sub-section

(3-C), be final.

(3-C) Any person aggrieved by the decision of the

Collector may, within seven days from the date of
receipt of such decision, appeal to the Commissioner
who shall decide the appeal, as far as possible, within

fifteen days from the date on which the appeal is
received by him, and any such decision shall be final.

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(3-D) Where on a reference made to him under

sub-section (3B), the Collector upholds the validity of
the motion carried under sub-section (3) and no appeal

is made by the Sdarpanch or the Upa-Sarpanch under
sub-section (3-C) within the limitation period specified
in that sub-section, or where an appeal is made under

sub-section (3-C) but it is rejected by the Commissioner,
the Sarpanch or as the case may be, the Upa-Sarpanch

shall cease to hold office, in the former case
immediately after the expiry of the said limitation

period and, in the latter case, immediately after the

rejection of the appeal, and thereupon the office held
by such Sarpanch or Upa-Sarpanch shall be deemed to
be vacant.]”

Further in exercise of powers conferred by Section 176 of

the Bombay Village Panchayats Act, Rules have been framed, called

the Bombay Village Panchayats Sarpanch and Upa-Sarpanch

(No Confidence Motion) Rules, 1975. Rules 2 and 3 of the Rules

provide as under :

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“2. (1) The members of a panchayat who

desire to move a motion of no-confidence against the
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.

(2) The notice under sub-rule (1)
shall be accompanied by seven additional copies

thereof, and the Tahsildar shall send one copy to the

Sarpanch, one to the Upa-Sarpanch and one each to
the Zilla Parishad, the Panchayat Samiti, the Collector
and the Commissioner. One copy shall also be given

to the Secretary.

(3) The Tahsildar shall, immediately
on receipt of notice under sub-rule (1), satisfy himself
that the notice has been given by not less than

one-third of 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 and then convene a special meeting for the
purpose within seven days from the date of receipt of
such notice.

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3. Immediately after the meeting,

the Tahsildar shall communicate to the Zilla Parishad,
the Panchayat Samiti, the Collector and the

Commissioner, the names of all the members of the
Panchayat who were present at the meeting, the
decision taken on motion, and the Number of votes in

favour of, or against, the motion.”

8. Perusal of Rule 2 (1) of the Rules lays down a procedure to

be adopted by the members of Gram Panchayat who desire to move a

motion of no confidence against Sarpanch and Upa-Sarpanch.

Election to the post of Sarpanch and Upa-Sarpanch is governed by the

provisions of the Act and the Rules, so also the motion of no

confidence to be brought against elected Sarpanch or Upa-Sarpanch.

The same is not a common law right. Rule 2 (1) of the Rules provides

that where the members desire to move a motion of no confidence

against both Sarpanch as well as Upa-Sarpanch they shall give two

separate notices. It cannot be said that the aforesaid words used in

the Rule are superfluous or have been unnecessarily used. It is well

settled that the legislature does not utilize the words without purpose.

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The fact that Rule 2 (1) of the Rules which provides for two separate

notices for Sarpanch and Upa-Sarpanch becomes significant

particularly because a particular procedure has been provided therein.

In the case of Bhavnagar University…Versus…Palitana Sugar Mill

(P) Ltd. and others, reported in 2003 (2) Supreme Court Cases 111.

The Supreme Court has clearly held that if a particular thing

is required to be done by law in a particular manner, the same has to

be done in the same manner and not in any other manner. I quote the

paragraph No.40 from the Supreme Court judgment cited supra.

“40. The statutory interdict of use and

enjoyment of the property must be strictly construed.

It is well settled that when a statutory authority is
required to do a thing in a particular manner, the same

must be done in that manner or not at all. The State
and other authorities while acting under the said Act
are only creature of statute. They must act within the
four corners thereof.”

9. The judgments cited by Advocate Shri Narwade

undoubtedly held those particular Rules and Sub-Rules directory but

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they have been held so looking to the object sought to be achieved

under those Rules. In the instant case, I find that there is a specific

object of providing for two separate notices for Sarpanch and

Upa-Sarpanch right from the inception. By two separate notices those

members who do not desire to move motion of no confidence against

Sarpanch may have desire to move such motion against Upa-Sarpanch

or vice versa. Similarly, on the date of meeting of no confidence, some

of those, who have signed the requisition against both may not like to

vote in favour of or against the motion of no confidence against

Sarpanch or Upa-Sarpanch. In order to avoid any such type of

confusion and to have proper regulatory process for adhering to the

democratic process this was essential. In this background therefore, it

is difficult to hold the provision of Rule 2 (1) of the Rules as directory,

as contended by Advocate Shri Narwade.

10. In the instant case, it is seen that the Presiding Officer put

the motion to vote at the same time against both Sarpanch and

Upa-Sarpanch. In fact, in my opinion, the motion should have been

put to vote separately against Sarpanch and Upa-Sarpanch. Since the

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provision of Section 35 (1), (2) and (3) of the Bombay Village

Panchayats Act is silent on this issue, to my mind, making provision

for separate notices in Rule 2 (1) of the Bombay Village Panchayats

Sarpanch And Upa-Sarpanch (No Confidence Motion) Rules is nothing

but supplementing provision of Section 35 (1), (2) and (3) of the Act.

It is well settled that the Rules are held to be valid, if they supplement

the provisions of the parent Act. As earlier stated the decisions

holding various Rules to be directory rendered by this Court, cited by

Advocate Shri Narwade, being in relation to those particular Rules,

there is no need for me to discuss those judgments here. As regards

the judgment regarding loss of majority by a person holding elective

office, I find that the said democratic set-up spoken up by the Courts

obviously means in accordance with the provisions of Law and the

Rules framed by the legislature and therefore, it cannot be held that

principles regarding democratic set-up should be read de hors the

provisions of law and Rules. For these reasons therefore, I hold that

both the impugned orders are illegal.

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11. Writ Petition is therefore, accepted. Rule is made absolute

in terms of prayer Clause-(1) of the writ petition. In the

circumstances, no order as to costs.

JUDGE

ssw

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