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IN THE HIGH COURT OF JUDICATURE AT BOMBAY:
NAGPUR BENCH: NAGPUR
WRIT PETITOIN NO.1037 OF 2009
PETITIONER:
Shrikrushna s/o Digambar Jadhav, aged about : 50
years, occupation: agriculturist, r/o Brahmi, Tahsil
Darwha, District Yavatmal.
VERSUS
RESPONDENTS:
1] Additional Commissioner, Amravati Division,
Amravati, Tq. & District : Amravati.
2] Additional Collector, Yavatmal, District : Yavatmal.
3] Presiding Officer/ Tahsildar, Darwha Tahsil, district :
Yavatmal.
4] Grampanchayat Brahmi, Tq. Darwha District :
Yvatmal through Its Secretary
5] Motilal Sitaram Khobragade, aged about: adult, R/o
Brahmi, Tq. Darwha, District : Yavatmal.
6] Himmat Prabhakar Shirsat aged about : Adult,
Occupation : Agriculturist, R/o Brahmi, Tq. Darwha,
District : Yavatmal.
7] Gajanan Pandurang Solanke, aged about : Adult,
Occupation : Agriculturist, R/o Brahmi, Tq. Darwha,
District : Yavatmal.
8] Sau. Rajendrabai w/o Hemchandra Khobragade,
aged - about : Adult, Occupation : House hold, R/o
Brahmi, Tq. Darwha, District : Yavatmal.
9] Narayan Dattaram Jadhav, aged about : Adult,
Occupation : Agriculturist, R/o Brahmi Tq. Darwha,
District : Yavatmal.
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Shri A.V. Gawande, Advocate for petitioner.
Shri A.S. Sonare, A.G.P. for respondent no.1 to 3
None present for respondent no.4
Shri P.S. Patil Advocate for respondent no. 5 6,7,8.
None present for respondent no.9
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CORAM : S.R. DONGAONKAR, J.
DATE: 30.3.2009
ORAL JUDGMENT
Heard Shri A.V.Gawande, Advocate for petitioner,
Shri A.S. Sonare, A.G.P. for respondent no.1 to 3 & Shri P.S.
Patil Advocate for respondent no. 5 6,7,8. None present for
respondent no.4 & 9.
Rule. Made returnable forthwith. Heard finally with
the consent of parties.
2] Petitioner is challenging the order passed by the
Additional Commissioner, Amravati Division, Amravati in
Appeal NO.BVP/35(3)(c)/08-09 of Brahmi whereby the
appeal of the petitioner to challenge order of Additional
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Collector in the proceeding No.21/69/08-09 Mouja Brahmi
Tahsil Darwha, District : Yavatmal, was rejected.
3] The facts relevant for the disposal of this petition
may be stated thus. Petitioner is the elected Sarpanch of
Village Gram Panchayat, Brahmi from 18.11.2008.
Respondent no.5 to 8, members of Gram Panchayat, Brahmi,
gave a notice to respondent no.3- Tahsildar for moving no-
confidence motion against petitioner. Respondent no.3 –
Tahsildar issued notice to the members of the Gram Panchayat
for the special meeting for this purpose, which was scheduled
on 24.11.2008. On 24.11.2008, the special meeting for
consideration of no confidence motion was convened at 2.00
p.m. Petitioner raised written objection before respondent
no.3 – Presiding Officer of the said special meeting regarding
non compliance of the mandatory provisions of rule 2(4) of
the Bombay Village Panchayat (Sarpanch & Upsarpanch
Motion of No Confidence) Rules. According to the petitioner,
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Tahsildar had failed to provide the text of no confidence
motion and charges against the petitioner. According to the
petitioner he was not given opportunity of hearing, as he was
not supplied with the notice under rule 2(1) of the said rules
along with the notice which was sent to him. The motion was
carried by 4 : 2. The passing of this resolution of no-
confidence against the petitioner was challenged by the
petitioner before the Collector by filing dispute under section
35(3)(b) of Bombay Village Panchayat Act. The Additional
Collector, however, found that the service of notice was
proper. He also found that the petitioner was heard and no
confidence motion was properly carried. Therefore, he
dismissed the complaint of the petitioner.
4] The unsuccessful petitioner then filed appeal before
the respondent no.1 – Commissioner, Amravati Division,
Amravati to challenge the said order of the Additional
Collector. Learned Additional Commissioner – respondent
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no.1 by his order dated 18.2.2009 dismissed the said appeal. It
is this order which is challenged by the petitioner in this
petition.
5] Learned counsel for the petitioner has emphasized,
submitting that the mandatory provisions of Bombay Village
Panchayat (Sarpanch & Upsarpanch No Confidence Motion)
Rules, rule 2 of the said rules was not complied by the
Tahsildar. In fact the notice received by the petitioner was not
accompanied with the copy of the no confidence motion,
which was issued by the respondent no. 5 , 6 and 8 under rule
2(i). It was not at all supplied. Therefore, the petitioner could
not make his defence in the special meeting called by
Tahsildar in which the alleged said no confidence motion was
carried. According to him, the said rule was mandatory and
because the copy of the no confidence motion was not served
on him, along with the notice for special meeting, no proper
opportunity was given to him to defend himself in the special
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meeting which was called for consideration of no confidence
motion. Thus according to him, he was not granted reasonable
opportunity under principles of natural justice. Proceedings of
the special meting held by Tahsildar dated 24.11.2008 is
vitiated. He has relied on the judgment of this court reported
in 2004(2) Mh.L.J. 1004 Yamunabai Laxman Chavan and
others ..vs.. Sarubai Tukaram Jadhav and others to contend
that although the provisions of Rule 2(2) of the said Rules are
held to be directory, the petitioner could not take effective
part in the special meeting, as he was not supplied with the
copy of the no confidence motion and therefore even though
the said rule is directory, the proceedings stood vitiated as it
was not the lapse on the part of the Tahsildar for non
compliance of some technical aspects. Therefore, according to
him, the proceedings in the said meeting cannot be held to be
legal, consequently unseating the petitioner as Sarpanch. In
the alternative it is his submission that the matter may be
remitted back for holding fresh special meeting to allow the
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said no confidence motion to be considered afresh after giving
proper notice to the petitioner or opportunity to represent his
case in the special meeting.
6] Learned A.G.P. for respondent no.1,2 and 3 has
supported the impugned order.
7]
Learned counsel for respondent no.5 to 8 while
supporting the order impugned; contended that when rule
2(2) of the said Rules is directory, technical flaw in the
procedure cannot vitiate the special meeting proceedings
which is specially called for consideration for no confidence
motion. According to him in the present case there were six
members in the gram Panchayat, four of them did not support
the petitioner. In fact even now they are not supporting the
petitioner. Therefore the petitioner does not command
majority in the Gram Panchayat and 2/3 majority i.e. 4
respondents are against the petitioner. He has also, relied on
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the affidavits of two panchas in whose presence the notice of
special meeting was affixed on the house of the petitioner. As
his brother had declined to take notice on behalf of the
petitioner. Affidavit of these panchas Subhash and Vijay are
filed in the proceedings of this petition, both; show that in
their presence the peon of Tahsildar Office had affixed the
copy of the notice of meeting along with copy of requisition of
the special meeting filed by the members of the Gram
Panchayat dated 8.11.2008 to the house of the petitioner.
They stated on affidavit that this notice was fixed along with
the copy of no confidence motion / requisition moved by the
respondents no. 5 to 8. Therefore, according to him, the notice
was validly served on the petitioner and the resolution of no
confidence against petitioner passed in the said case is
perfectly valid. He also relied on the observations of this Court
in aforesaid Yamunabai’s case, particularly 7 & 11 of the said
judgment.
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8] I have considered the submissions of the parties.
9] It is necessary to note the contents of the minutes of
the special meeting, at this stage. Relevant paragraph of the
said minutes reads thus:
“On 18.11.2008, by remaining present
personally in the Tahsil Office of Darwha, the
above members of Gram Panchayat Bramhi,Tahsil Darwha made written submission to the
Tahsildar Darwha to file Ravindra Khas
(Probably fresh application ) against ShriShrikrishna Digambar Jadhao, the Sarpanch of
Mouza Bramhi. Thereupon, written notice was
served upon the concerned asking them toattend the special meeting of 2.00 p.m. sharp
in the office of the Gram Panchayat, Bramhi Xomission X remained present as the Presiding
Officer.
The said filed application was read out in
details in the meeting. Following points have
been mentioned in the said application as
regards to no confidence motion
A) The existing Sarpanch Shri Shrikrishna
Digambarrao Jadhao does not run the affairsof the Gram Panchayat by taking any member
into confidence.
B) The existing Sarpanch does illegal activities
by misusing his post.
C)The existing Sarpanch intentionally neglects
the electricity and water problems in the
village.
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D) After making recovery of the taxes of Gram
Panchayat, the existing Sarpanch directly
spends that amount instead of depositing it in
the bank.
Detailed information was given as regards
to above all the four points in the meeting.
Detailed discussion is not held in the meeting.
The members are not taken into confidence
while doing any work. He tries to divide the
members. The affairs are not carried out
unanimously. He issues domicile certificate to
those persons who are not actual residents of
the village, instead of issuing it to those who
are actual residents of the village. On making
request to clear choke up as regards the dam,
it is not done. Electric bulbs are fitted only at
the time of the festivals. The amount collected
by way of recovery of Gram Panchayat’s house
tax and water tax is used for personal work by
keeping it with self, instead of depositing it in
the bank. Resolution was passed to deposit the
recovery amount in the bank. But, the said
resolution is not implemented. The amount is
spent directly
On giving opportunity to the Sarpanch to
give explanation on the said points, he gave
his explanation as under:
He explained that the points raised in no
confidence motion are wrong. The domicile
certificates are issued only to the residents. No
avoidance is shown while issuing the
certificates. No such resolution was passed
where the present members were not taken
into confidence. Water problem is solved
immediately. Similarly, electric lights are also
fitted regularly. However, due to the problems
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faced in the rainy season and unsound
financial position of the Gram Panchayat, the
electric lights are fitted only at the time of the
festivals. (He further explained that) the
statements made against him are wrong.
Entire powers of recovery are as earlier up-
till now any work is got done through the
Secretary by giving order to him. Therefore,
the question of spending the amount for
personal use does not arise. The said village
has been made “Hagandari Mukta” (free from
easing in open) and the President award has
been earned for the village. Development
work have been done from time to time. The
concerned members have filed an application
to move no confidence motion only out of
personal differences.
The members who were present raised
supplementary point regarding the remaining
points. Houses and latrines in the village were
dismantled. House bills were – – – destroyed.
xx omission xx were legally dismantled. When
the village is free of Hagandari (easing place
in open) who go outside for easing. Due to
personal reasons, latrines of some people were
dismantled. There was no development of the
village in any way. This fact is mentioned in
the points.
The Sarpanch of Gram Panchayat Bramhi
submitted his objection on some official
points.
A) It was not mentioned in the notice for the
meeting, issued on 17.11.2008 that it was
called for passing No Confidence Motion.
B) It was not mentioned as to on which date
and for what reason the notice was issued.
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C) The notice was not served on the people
present in the village.
The objection application of the above
person was rejected by passing a detailed
written order on the aforesaid points. He was
informed about the said application and order
passed. Total No. of members of Gram
Panchayat Bramhi is 7 out of whom one
member was declared as disqualified. At
present total No. of members is 6. 2/3 of the
said no. of members is required for passing No
confidence motion and on actual voting, there
were four (4) votes, in favour of the motion
i.e. of
1) Shri Ram Sitaram Khobragade
2) Shri Himmat Prabhakar Sirsat
3) Shri Gajanan Pandurang Solanke
4) Sau.Rajendrabai Premchand Khobragade
Similarly there were two 2) votes against the
motion i.e. of 1)Shri Shrikrishna Digambarrao
Jadhao and 2) Shri Narayanrao Dattaramji
Jadhav. Hence it was declared that the No
confidence motion against Shri Shrikrishna
Digambarrao Jadhav, Sarpancha of Gram
Panchayat Bramhi was passed. A vote of
thanks was proposed to the persons present
and the meeting of the members was declared
over.”
10] Petitioner has contended that the relevant objection
was submitted by him in writing. Respondent Tahsildar had
rejected that objection without any application of mind and
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therefore, he was not given proper opportunity to speak in
defence in the meeting.
11] Perusal of the above minutes would show that
petitioner was given opportunity to explain the charges which
were sought to be pressed at the time of special meeting in
support of no confidence motion. Therefore, it cannot be said
that he was not given proper opportunity to explain his side.
12] As held by this court in Yamunabai’s case referred to
above, provisions of rule 2((2) are directory. The action of no
confidence motion is not a punitive action and therefore, there
is no necessity to give opportunity of hearing as it is required
to be given in the matter where punitive action is sought to be
taken. Paragraph 7 of the said judgment may be referred in
this context. It is thus:
“7. The essence of a motion of no confidence
is the expression by the elected members of a
legislative body of a want of confidence or faith
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14motion is moved. A motion of no confidence is
not a removal for misconduct and it is not inthe nature of disciplinary action adopted on
account of charges of misbehaviour. A motionof no confidence is what it states it is : an
expression of a lack of confidence in the
person. On the other hand, and incontradistinction to a motion of non
confidence, the Act makes provisions for the
removal of a member of the Gram Panchayat in
section 39.Section 39 contemplates theremoval of any member of the Panchayat, the
Sarpanch or Upa-Sarpanch where he is guiltyof (i) misconduct in the discharge of his duties;
or (ii) of a disgraceful conduct; or (iii) neglect
or incapacity to perform his duty; or (iv) wheresuch person is persistently remiss in the
discharge thereof. The provision for removal
has to be distinguished from an expression ofno confidence. A removal is a disciplinary
measure and in view of the well settle positionof law, a removal has to be stated grounds after
holding an enquiry. An enquiry is in fact,
provided by sub section (1) of section 39. Onthe other hand, a motion of no confidence is
the ultimate expression by the members of a
collective body, of the expression of a lack of
faith in the person against whom that motion is
moved.”
Paragraph 9 of the said judgment reads thus:
“9. Under the Bombay Village Panchayat Act,
1958, what is made mandatory is (i) The
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moving of a motion of no confidence by a
stipulated number of members of the Gram
Panchayat (one third); (ii) Those who move
the motion must be entitled to sit and vote at a
meeting of the panchayat; (iii)The furnishing
of a notice of requisition to the Tahsildar as
prescribed; (iv)The convening by the Tahsidlar
of a special meeting of the Panchayat within a
period of seven days of the receipt of the
notice at the time and place specified; (v) The
entitlement of the Sarpanch and Upa-Sarpanch
to speak or to otherwise participate in the
proceedings and to vote upon the resolution;
and (vi) The passing of the motion by a
majority of not less than two thirds of the total
members of the Panchayat entitled to sit and
vote. The provisions which the legislature
considered as being mandatory in order to
constitute a valid motion of no confidence
have been specified in sub sub section (1)(2)
and (3) of section 35. While construing the
rules what must be borne in mind is that the
act mandates the giving of a notice to the
Tahsidlar as prescribed. In construing as to
which part of the rules is mandatory, regard
must be had to the provisions of the parent
legislation because the legislature has
indicated in clear terms therein those
provisions in respect of which a punctilious
compliance is expected. The members of the
Gram Panchayat who seek to move a motion
of no confidence against the Sarpanch or Upa
Sarpanch or both are required to furnish a
notice of their intention to do so to the
Tahsildar. Before he convenes the meeting, the
Tahsildar has to be satisfied that the motion
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has been moved by one third of the total
number of members entitled to sit and vote.
The Act then provides that the Tahsidlar must
convene a meeting of the Panchayat for
considering the motion within a period of
seven days. When he convenes a special
meeting of the Panchayat, the Tahsildar
furnishes an intimation to the members of the
Panchayat including the Sarpanch and Upa
Sarpanch of the convening of the meeting. Sub
section (2) of section 35 requires the Tahsildar
to convene a special meeting of the Panchayat
for considering the motion and it is implicit
therein that an intimation has to be furnished
to all members of the Panchayat including the
Sarpanch and Upa-Sarpanch who are sought
to be proceeded against. In the event that the
Sarpanch and the Upa Sarpanch seek, in
addition, copies of the actual requisition that
has been issued by the members of the
Panchayat, it is open to them to move the
Tahsildar by submitting an application.
However, it would be impermissible for the
court to hold that resolution which has been
duly passed by a two third majority, upon a
requisition moved by one third of the members
of the Panchayat eligible to sit and vote, a t a
meeting convened by the Tahsildar in
accordance with law will stand invalidated
merely because the Tahsildar has not sent a
copy of the actual requisition to the Sarpanch
or the Upa Sarpanch as the case may be. Such
a requirement cannot be read into the
provisions of section 35(2). The provisions
contained in Rule 2(2) must be regarded as
directory having regard to the true nature and
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purpose of a motion of no confidence. A
motion of no confidence is not akin to
disciplinary proceedings or a provision for
removal for misconduct. A removal for
misconduct is punitive. In such a case, a
person who is sought to be proceeded against
has to be furnished with a charge sheet and
the removal must take place by following an
enquiry that is consistent with the principles of
natural justice. A motion of no confidence on
the other hand, does not partake of a punitive
character nor is it based on charges of
misconduct which have to be proved. A
motion of no confidence is the fundamental
expression of the collective will of the
members of a legislative body that they lack
confidence in one of their own. The contention
that the right to speak at the meeting given to
a Sarpanch or Upa Sarpanch requires that the
requisition which has been moved be
furnished to them cannot be acceded to.
Should the Sarpanch or Upa-Sarpanch seek to
have copies of the requisition, it is open to
them to apply to the Tahsildar. However,
whereas in the present case the Sarpanch or
Upa-Sarpanch chooses to participate in the
meeting whereafter a resolution is duly passed
by the requisite majority, it would stultify the
democratic process if the court were to nullify
the resolution on the ground that a copy of the
requisition was not furnished to the Sarpanch
or Upa-Sarpanch.”
Will show that when there is some opportunity given to the
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Sarpanch to explain his side when no confidence motion is
moved against him would suffice.
13] I am aware that if there is glaring violation of
mandatory procedure, interference by this court or by
statutory authorities would be warranted in view of the
judgment of this court in 1998(3) Mh.L.J. Nimba Rajaram
Mali ..vs.. Collector, Jalgaon and others. But then, here is the
case where members of Gram Panchayat who voted against
petitioner are respondents, they are more in number in the
strength of the members of six in the said Gram Panchayat.
There is no difficulty in coming to the interference that it is
2/3 majority which is against the petitioner. Probability
expressed by the petitioner is that if he is allowed to explain
his stand in the special meeting, there would be some change
on one or two respondents as regards their stand in support of
the motion of the no confidence. It can not be a sufficient
reason to interfere with the impugned order, in the extra
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ordinary writ jurisdiction of this court.
14] Learned Commissioner in the impugned order has
observed in paragraph 5 as under:
“5. It is fact that the Gram Panchayat is
constituted of seven members body and
appellant is one of them. Notices were servedlegally on all the members. Appellant’s notice
was affixed on his house in presence ofpanchas and therefore, it is legally served. Six
members including the appellant were present
in the special meeting convened by theTahsildar. Darwha. Discussion took place in
the meeting. Thereupon, Tahsildar has
conducted the voting by raising of hands asthere is no request of secret ballot. As the
appellant was himself present in the specialmeeting then he cannot raised the issue of
service of notice. Out of six members four
voted in favour of the motion and two raisedhand against the motion. Hence, Tahsildar,
Presiding Officer, declared the motion as
passed. Ultimately, the resolution came to be
passed by majority. No confidence motion
passed by majority deserves to be maintainedis upheld by the lower court, hence i pass the
following order:
The appeal being devoid of merit is
dismissed. The order of lower court including
that of passing of no confidence motion against
the appellant are upheld.”
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Thus he was in the knowledge of say of Panchas who had filed
affidavits in this petition, as it was matter of record.
15] Tahsildar had conducted the voting by raising of
hands, as there is no request of secret ballot. The discussion
took place in the meeting. As already pointed out above, four
members who had voted in favour of the motion are present
respondents and they are still not supporting the petitioner.
In democratic set up; the will of majority has to prevail. I have
already pointed out that there is no punitive action like
disqualification of the Sarpanch is contemplated. In my
opinion, no interference is called for with the order impugned;
in this petition.
16] In sequel the petition is liable to be dismissed. The
same is dismissed. No order as to cost.
JUDGE
SMP
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