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VPH
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION No. 10457 OF 2009
Vijay Ramchandra Katkar, Age 45 years, )
residing at Pali, Post Pali, Tal. Sudhagad, )
District Raigad .. Petitioner
Vs.
1. Group Gram Panchayat Pali, )
Gramvikas Adhikari, Pali, Post Pali,
ig )
Taluka Sudhagad, District Raigad. )
2. Mr. Yusuf Ismail Pathan, Age 49 years, )
Residing at & Post Pali, )
Taluka Sudhagad District Raigad. )
3. Mr. Ramesh Ramchandra Misal, Age 46)
years, residing At & Pos Pali )
Taluka Sudhagad, District Raigad )
4. Mr. Rajesh Sharat Mapara, Ag 34 years )
Residing at & Post Pali, )
Taluka Sudhagad District Raigad. )
5. Mr. Vikram Bikamchand Parmar, Age 38
years Residing at & Post Pali, )
Taluka Sudhagad District Raigad. )
6. Mr. Anupam Sharad Kulkarni, Age 38 )
years, Residing at & Post Pali, )
Taluka Sudhagad District Raigad. )
7. Mrs. Gita Suresh Thombre, Age 50 yrs )
Residing at & Post Pali, )
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Taluka Sudhagad District Raigad. )
8. Mr. Milind Suresh Thombre, Age 32 yrs)
Residing at & Post Pali, )
Taluka Sudhagad District Raigad. )
9. Mrs. Aki Mahadu More, Age 50 yrs. )
Residing at & Post Pali, )
Taluka Sudhagad District Raigad. )
10. Mr. Jitendra Waman Kelkar, Age 42 yrs)
Residing at & Post Pali, )
Taluka Sudhagad District Raigad. )
11. Mr. Nathuram Pandurang Joshi, Age 50)
years, Residing at & Post Pali, )
Taluka Sudhagad District Raigad. )
12. Mr. Sandip Shankar Parab, Age 36 yrs. )
Residing at & Post Pali, )
Taluka Sudhagad District Raigad. )
13. Mrs. Lina Deepak Sheth, Age 50 years )
Residing at & Post Pali, )
Taluka Sudhagad District Raigad. )
14. Mrs. Anita Atmaram Sagale, Age 50 yrs)
Residing at & Post Pali, )
Taluka Sudhagad District Raigad. )
15. Mrs. Aparna Arun Sakharle, Age 32 yrs)
Residing at & Post Pali, )
Taluka Sudhagad District Raigad. )
16. Mrs. Chandrakala Chandragupt Bhalerao
Age 48 years, Residing at & Post Pali, )
Taluka Sudhagad District Raigad. )
17. Tahsildar,
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At & Post Pali, )
Taluka Sudhagad District Raigad )
18, The District Collector, )
Raigad, Alibag. )
19. The Commissioner, )
Konkan Division, Mumbai )
20. State of Maharashtra ..Respondents
***
Mr. C. G. Gavnekar, for the Petitioner.
Mr. M. M. Sathye, for Respondent Nos. 2, 3, 5 to 10, 12, 14, 15.
Mr. Suhas Deokar, for Respondent Nos. 4, 11, 13 & 16.
Mr. R. M. Patne, AGP for Respondent Nos. 17 to 20.
***
CORAM : R. C. CHAVAN, J.
JUDGMENT RESERVED ON : MAY 3, 2010.
JUDGMENT PRONOUNCED ON : MAY 6, 2010.
JUDGMENT :
. Rule. By consent rule made returnable forthwith.
1. This petition is directed against the order passed by the
Collector Raigad on 4th November 2009 and maintained upon appeal by
the Additional Commissioner, Konkan Division, by judgment dated 1st
December, 2009.
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2. Facts which are material for deciding this petition and about
which there can be no dispute are as under-
. On 16th March, 2008 elections were held at village Pali,
taluka Sudhagad for electing members of the Gram Panchayat. The
petitioner was one of the members elected at those elections. On 30th
June, 2008 the petitioner was elected as Sarpanch at the first meeting of
the Gram Panchayat. On 28th August 2009 respondent Nos. 2 to 13, 15
and 16 served notice under section 35 of the Bombay Village Panchayat
Act (hereinafter referred to as the “Act”) and the Sarpanch and
Upasarpanch No Confidence Rules, 1975 (hereinafter referred to as the
“Rules”). Pursuant to the said notice, on 28th August 2009 the Tahsildar,
Pali Sudhagad convened a meeting of the Gram Panchayat on 2 nd
September 2009. This meeting was accordingly held on 2nd September
2009 and was presided over by the Tahsildar Pali. At that meeting, a ‘no
confidence motion’ was passed against the petitioner by two-third
majority. At that meeting 4 members of the Gram Panchayat were
absent. Out of the remaining 12 members, 11 voted in favour of the
resolution. The petitioner was the lone voter against motion of no
confidence. The Tahsildar found that the motion was carried by a
majority of 2/3rds of the members entitled to sit and vote at the meeting,
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and therefore, declared that the resolution was passed.
3. Aggrieved thereby, the petitioner raised a dispute under
sub-section [3(b)] of section 35 of the Act. Among other things, he
submitted that none of the members present at the meeting had moved
the motion of no confidence nor was it seconded by any member
present. He pointed out that though no such resolution was moved, the
Tahsildar put it to vote even before any discussion could take place on
the resolution. Therefore, according to the petitioner, the resolution
allegedly passed in the meeting held on 2nd September 2009 was not
legal.
4. Respondent No. 17 the Tahsildar, who had presided over the
meeting submitted a reply before the Collector, and so did the members
of the Gram Panchayat, who had voted in favour of the resolution. They
stated that the resolution was properly passed and therefore the Tahsildar
had rightly so declared. After considering the rival contentions, the
Collector held that the dispute raised by the petitioner did not disclose
any deficiency in the proceedings at the meeting held on 2nd September
2009. He held that the resolution was properly moved and passed at the
meeting.
5. The petitioner’s appeal before the Additional
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Commissioner, Konkan Division came to be likewise dismissed by
judgment dated 1st December, 2009, which has been impugned in this
petition.
6. In pursuance of notice issued on 14th December, 2009
respondent No.17 Tahsildar Pali has filed an affidavit-in-reply reporting
that the proceedings at meeting held on 2nd September, 2009 were proper
and no confidence motion was properly passed.
7. Members of the Gram Panchayat who had voted against the
resolution, respondent Nos. 2, 3, 5 to 10 & 12, 14 & 15 (hereinafter
referred to as the contesting respondents) also filed their affidavits
stating that the resolution of ‘no-confidence’ was rightly passed and that
the petitioner had no right to continue to act as Sarpanch.
8. I have heard the learned counsel for the petitioner,
contesting respondents as well as the learned AGP. The learned counsel
for the parties painstakingly took me through relevant provisions of the
law, and also the judicial pronouncements which have a bearing on the
question.
9. The learned counsel for the petitioner submitted that the
proceedings of meeting held on 2nd September 2009, annexed to the
petition at Exhibit “B” show that the proceedings commenced at 11 a. m.
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Four members were absent and therefore, it was decided to wait for
about 15 minutes. But since they did not report, the proceedings began
on 11.15 a. m. The members present were informed of the draft of ‘no
confidence motion’. There was only one allegation against the petitioner
namely, high handed or arbitrary conduct of business. The proceedings
then recount that after acquainting the members about the draft of
motion of no confidence, the motion was put to vote. Eleven members
are recorded to have voted in favour of the resolution. The petitioner
voted against the resolution. Copy of the proceedings book shows that
signatures of the members who voted in favour and against had been
taken in the proceeding book. It is further recorded in the proceeding
book that the Presiding Officer gave an opportunity to the petitioner to
put forth his contentions. The proceedings then records what the
petitioner submitted. It then again recounts that 11 members voted in
favour of the resolution and one member voted against it and thus, the
resolution was passed by 2/3rds of majority. The proceeding was then
read over to all the members and their signatures were obtained on the
proceeding book. Then proceedings are signed by the Tahsildar as well
as Village Development Officer.
10. The learned counsel for the petitioner relied upon a
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judgment of this Court in the case of – Kishore Phalat Vs. Vilas
Mahajan [ 1997 (3) Mh.L.J.27] where the Court was considering the
question as to how votes on a no confidence motion should be recorded.
Since there is no dispute about votes recorded this judgment will be
unhelpful in resolving the issue.
11. The learned counsel for the petitioner submitted that if the
proceedings are correctly recorded, which has to be presumed, the
motion of no-confidence was neither moved nor was it seconded by any
member. He further pointed out that voting was taken and then the
petitioner was given a chance to defend himself. Therefore, according to
him, the meeting was conducted in flagrant violation of the procedure,
prescribed under the Act and the Rules. Therefore, the Collector and also
the Commissioner should have held that ‘no confidence motion’ was not
passed.
12. The learned counsel for the contesting respondents
submitted that the proceedings of meeting dated 2nd September 2009
ought to be read in a manner consistent with the presumption that
official acts would be performed properly. He pointed out that the
proceedings also recount that after the petitioner was heard, out of the
members present, eleven had voted in favour of the resolution.
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Therefore, according to him, it is possible to interpret the proceedings in
a manner which would ensure that the wishes of majority are respected.
13. As rightly pointed out by the learned counsel for the
petitioner, such a course is not at all open. First, it is nobody’s case that
no confidence motion was put to vote again for a second time after the
petitioner was heard. Secondly, the penultimate paragraph in the
proceedings to which learned counsel for contesting respondents makes
a reference does not show that voting was taken again, but only recounts
what had already happened. It will not be open to read what is not there
in the proceedings. The presumption about official acts may rather imply
that the Tahsildar recorded the proceedings truthfully as they took place.
. It is thus, clear from the proceedings recorded that –
(i) the motion had not been moved or seconded as required
by Rule 17 of the Bombay Village Panchayat Meeting Rules
(hereinafter referred to as the “Meeting Rules”);
(ii) there was no discussion or debate on the motion as
required under Rules 21 to 27 of the Meeting Rules, before it
was put to vote under Rule 28.
14. The erudite arguments of the learned counsel as to the
consequences flowing from these facts may now be dealt with.
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15. The Rules provide that the members of the Gram Panchayat
who desires to move a motion of no confidence shall give a notice in
prescribed form to the Tahsildar. Such notice is required to be
accompanied by 7 additional copies. The Tahsildar is required to send a
copy each to Sarpanch and Upasarpanch as well as to the Zilla Parishad,
Panchayat Samiti, the Collector and the Commissioner. If such a notice
is given by not less than 1/3rd of the total members entitled to sit and
vote, the Tahsildar is required to convene a special meeting with 7 days.
Contesting respondents, who desired to move a motion of no confidence
gave requisite notice in prescribed form, and the Tahsildar did convene a
meeting within the period of 7 days of receipt of notice as required by
rules. Rule 3 of the Rules, require the Tahsildar to communicate to the
Zilla Parishad, Panchayat Samiti and the Collector and the
Commissioner the name of members who were present at the meeting,
the decision taken on the motion, number of votes in favour of and
against the motion. These Rules are silent on the manner in which this
meeting is to be conducted. The learned counsel for the parties
therefore, rightly submitted that the Meeting Rules, 1959, would apply
to such meetings.
16. The only distinction in general and special meeting in the
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Meeting Rules is that while 3 clear days’ notice is required for an
ordinary meeting, a special meeting can be convened after giving at least
1 clear day’s notice. As far as procedure to be followed at these
meetings, there is no distinction.
17. Rules 17 to 26 provide the procedure for considering
motions at meetings. A member who has given notice of a motion can
either state that he does not wish to move the motion, or may move the
motion. Once a motion is moved and seconded, it is not allowed to be
withdrawn. The members are then permitted to speak on the motion. The
mover of the motion or the secondor can reply at the conclusion of the
debate, and on conclusion of the debate on the motion, when the
presiding officer is satisfied that the motion has been sufficiently
discussed, he may put the motion to vote. Thus, these Rules require that
the motion is to be first moved and seconded, followed by discussion
thereon, at the conclusion whereof, the motion is required to be put to
vote.
18. The learned counsel for the petitioner submitted that the
proceedings recorded by the Tahsildar show that the motion had been
put to vote without there being any discussion thereon. Relying on the
judgment of a learned Single Judge of this Court in Govind Nivrutti
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Hipparkar Vs. Tahasildar, Taluka Sangola & Ors. in Writ Petition No.
9819 of 2009, decided on 18th January, 2010, the learned counsel for the
petitioner submitted that there has to be a debate on the motion. The
Court had held that it was incumbent on the Tahsildar to provoke a
debate by affording an opportunity to the person against whom ‘no
confidence motion’ is sought to be moved to make his point by
permitting him to speak. The Court concluded that a meeting where the
motion and provisions of law are only read out cannot be called a
meeting at which the motion was debated. This Court therefore, held
that such a motion could not be upheld, upon a challenge being raised.
This Court had concluded while allowing the writ petition that the
parties may convene another meeting for passing the resolution of no
confidence, in accordance with law.
19. In Mr. Nivrutti Kashinath Bansode & Anr. Vs. Gram Sevak,
Grampanchayat, Nazara & Ors. in Writ Petition No. 6873 of 2008,
decided on 24th October 2008 another learned Single Judge of this Court
held that section 35 of the Act mandates that the Sarpanch against whom
a resolution of no confidence is to be passed, would be entitled to
address the House. The Court also referred to Meeting Rules and
observed that these rules clearly provide that a motion can be put to vote
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only when it proposed and seconded by someone. The Court observed
that record of the proceedings did not show that motion was proposed or
seconded by someone. Highlighting the need for a free and full debate,
the Court concluded that since no opportunity was given to the members
to speak at the meeting, the resolution could not be upheld. The Court
concluded by observing that it would be open to the Tahsildar to
reconvene a fresh meeting with respect to the requisition which was
issued to him, if it satisfied the stipulations provided in law. The Court
observed that if such a meeting is reconvened, the Tahsildar would
ensure that the meeting is conducted by following provisions of law by
permitting a debate or discussion at the meeting.
20. The learned Judge referred a judgment in the case of-
Ashok Krishnakant Mehta Vs. State of Maharashtra & Ors. [2004(4)
Mh.L.J. 197]. In that case a Division Bench of this Court was
considering a motion of no confidence passed possibly in the same Pali
village. A meeting was convened by the Tahsildar on 17 th December
1999 at which 16 out of 17 members of the Gram Panchayat were
present. While the person against whom no confidence motion was
moved was permitted to speak, other members, who sought to speak at
the meeting, were denied permission by the Tahsildar. Six members left
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the meeting in protest against the decision of the Tahsildar not to allow
them to speak at the meeting. The Division Bench considered the main
issue as to whether a resolution of no confidence passed at a meeting in
course of which, members constituting to Village Panchayat were not
permitted to speak, would be invalid. After considering the relevant
provisions of the Act and Rules, the Court observed that every member
of a representative body has a vital interest in the business which is
transacted before that Body and that the right of a particular member,
who is sought to be proceeded against on account of specific
misconduct, cannot be equated or confused with the general right of all
the members to discuss and debate. The Court found that the weight of
numbers is not an answer to the fundamental defect such as the one
where debate was stifled and the court could not countenance a
suppression of right to speak by a supposed justification on the basis of
the numbers who cast their lot in support of a resolution.
21. Though in today’s political scenario neither content of a
speech, nor the forcefulness with which it is delivered, may have any
bearing, on voting in a political body & such speeches may have been
reduced to ritualistic empty formation, legally, it has to be presumed that
elected representatives too make decisions after hearing all sides.
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Therefore, unless all concerned are heard at such a meeting, the local
self governing body cannot jump to the voting stage. The petitioner may
not be a Mark Antony who by his legendary speech turned the tide after
Julius Caesar was killed, but he could not have been denied the
opportunity of being one, making an attempt to refute the charges and
appeal to the conscience of those who were to vote him out. This right is
recognized not only by the judgments which the learned counsel for the
petitioner referred to but also in the Meeting Rules. Failure to follow this
requirement would vitiate the resolution.
22. Therefore, principally because the petitioner was not heard
before the resolution was put to vote and also because the salutary
procedure prescribed in Rules 17 to 26 of Meeting Rules was not
followed, the Resolution could not have been saved. The Collector and
the Commissioner should have so held. The impugned orders upholding
the resolution would therefore have to be quashed, as also the resolution
itself.
23. The learned counsel for the contesting respondents
submitted that even if it is held that the resolution was not validly passed
because of failure of the Presiding Officer to follow prescribed
procedure, and not for any fault on the part of majority of members of
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Gram Panchayat, the petitioner could not be permitted to occupy the
office after losing the support of majority.
24. Relying on the judgment of a learned Single Judge of this
Court, in a case of – Durgadas Ukhaji More & Ors. Vs. Additional
Commissioner, Nashik Division, Nashik & ors. [2003(1) Mh.L.J. 420],
the learned counsel for the contesting respondents submitted that a
motion of no confidence could not be set at naught on account of
technical lapses and that the requirement of sub-rule (2) of Rule 2 of the
No Confidence Motion Rules, was to be considered as a directory and
not mandatory. The learned counsel further submitted that lapses on the
part of Tahsildar cannot result in finding fault with the members who
moved the motion of no confidence.
25. Relying on the judgment in Smt. Yamunabai Laxman
Chavan & Ors. Vs. Smt. Sarubai Tukaram Jadhav & Ors. [2004(3) ALL
MR 93] , the learned counsel for the respondents submitted that this
Court may not exercise of its powers under Art. 226 or 227 of the
Constitution in order to oppress the will of the majority on the ground of
technical lapses on the part of the Tahsildar in following the procedure,
which may deviate from the chronology in which events were supposed
to have taken place, but conforms to the substance of requirements of
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law. Therefore, according to him, even if the Courts were to come to a
conclusion that the Tahsildar had put the resolution to vote first and then
allowed the petitioner to speak, that was only a formal defect which
would not result in nullifying the will of majority and foist upon them as
its Sarpanch a person who had lost majority.
26. The learned counsel for the contesting respondents
submitted that even in the judgments on which the learned counsel for
the petitioner relied in the case of – (1) Govind Vs. Tahsildar in Writ
Petition No. 9819 of 2009 decided on 18th January, 2010; and (2)
Nivrutti Vs. Gram Sevak in Writ Petition No.6873 of 2008 decided on
24-10-2008, referred in the preceding paragraphs, this Court had
specifically permitted the Tahsildar to convene or reconvene the
meeting. Therefore, the learned counsel submitted that the proceedings
should re-commence at the stage at which deviation or the mischief
occurred. The members who had assembled on 2nd September 2009 to
vote on the resolution should again assemble at a meeting to be chaired
by the Tahsildar and should reconsider the resolution after following
procedure, prescribed in Rules 17 to 26 of the Meeting Rules. The
learned counsel reiterated that the villagers should not be made to suffer
a Sarpanch who had lost majority, only on account of lapse of the
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Tahsildar.
27. The learned counsel for the petitioner submitted that such a
course was not open for four reasons. First, the judgments on which the
learned counsel placed reliance do not lay down a ratio that meeting
should or must be convened or reconvened, since permissibility of such
a course was not discussed in those judgments. Secondly, the requisition
by contesting respondents, as also the notice convening the meeting
issued by Tahsildar have got exhausted since the meeting was actually
held on 2nd September 2009. Therefore, in face of provisions of Section
35 of the Act, a similar motion cannot be considered till the statutory
time limit elapses. Thirdly, the requisition/notice having been exhausted,
if members of the Panchayat are asked to assemble again, it would
amount to adjourning the meeting held on 2nd September 2009, which is
impermissible. Lastly, the complexion of the Panchayat has undergone a
change and now there is a 17th member of the Panchayat, whose vote
would have to be considered for deciding the fate of the petitioner.
28. As to the first reason the learned counsel for the petitioner
may be only technically right. But the directions to convene/reconvene
the meeting given in those judgments are not shown to have been
questioned or set aside. In any case the questions as to whether such
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direction could be given, could always be debated. And, the learned
counsel appearing for parties have joined the debate and thrown light on
the issue before me. Therefore, it would be imperative to examine the
second and third reasons whereby the learned counsel for the petitioner
raises legal objection to convene/reconvene the meeting.
29. As rightly submitted by the learned counsel for contesting
respondents, there is no question of convening a meeting or treating the
directions in judgments as if it is a fresh requisition for holding a
meeting. Therefore, the bar for moving a fresh resolution, whether the
lapse of statutory time limit, would not apply. Fictionally, the meeting
which was held on 2nd September 2009 would itself re-commence as if
the moment was frozen. Viewed thus, the objection based on the
proposition that requisition or notice have been exhausted cannot be
upheld.
30. The learned counsel for the petitioner submitted that this
would amount to holding a meeting beyond the statutory period of 7
days, which would be impermissible. He submitted that in Mandabai
Balnath Rohom Vs. Ashok Fakira Chandar [2002 Mh.L.J. 916], a
learned Judge of this Court was considering the question as to whether
Tahsildar was required to only issue a notice calling meeting within 7
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days of the receipt of requisition or he had to actually hold or convene
the meeting for considering the no confidence motion within 7 days. The
Court held that the Tahsildar was not only required to issue the notice,
convening the meeting within 7 days but also to convene within 7 days
the meeting to deal with the no confidence motion. While so observing
the Court also quoted from a judgment of Full Bench of this Court in the
case of – Chaitram Dagadoo Vs. Malegaon, Panchayat Samity & Ors.
[1965 Mh.L.J.663] to the following effect-
“we must not so interpret the provisions of the Act as to defeat
the intention of the legislature, that a person who had lost
confidence of the members should not continue in office.”
31. As rightly pointed out by the learned counsel for the
contesting respondents, the question here is not of convening the
meeting. It was validly convened within 7 days. Also, in the very same
judgment, observations of Full Bench From Chaitram’s case have been
quoted and though judgment in Chaitram’s case may not be applicable,
the principle enunciated, that provision of the Act cannot be so
interpreted to defeat the legislative intent, that a person who has lost
confidence should not be allowed to continue in office, would apply
with full force to the facts of the present case.
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32. I have carefully considered these contentions. The
observations of this Court in Mandabai’s case and reference therein to
what was held by the Full Bench in Chaitram’s case were meant to
emphasise that once notice of no confidence motion is given, it takes
precedence over every other business and hence has to be deliberated
upon within 7 days. Merely issuing a notice within 7 days, convening
the meeting, say after a month, would result in allowing a person who
had lost confidence to continue in office merely because a meeting was
not convened. The judgment therefore clarified that the 7 days limit was
not only for issuing a notice, but actually holding a meeting. The
petitioner is trying to take advantage of a rule, which was meant to
protect, recognise and respect the will of majority to effectively nullify
the majority. This is impermissible. Again at the cost of repetition it has
to be pointed out that meeting was convened within 7 days. The question
is only of transacting further business at the meeting on a later date
because of defects in the procedure followed. This could be compared to
an adjournment.
33. The question therefore is whether such a meeting could be
adjourned. The learned counsel for the petitioner relied on a judgment of
the Division Bench of this Court in the case of – Dayandev Mohiniraj
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Nipunage Vs. State of Maharashtra [2000(2) BCR 849] where the Court
was considering the question of adjournment of a meeting. In that case
Tahsildar had convened a meeting for considering a no confidence
motion. The Sarpanch sent a latter to Tahsildar stating that she was ill
and unable to attend the meeting. The Upsarpanch also wrote to the
Tahsildar stating that he had to attend a funeral and therefore, it was not
possible to attend the meeting. The Tahsildar, however, did not adjourn
the meeting and a resolution of no confidence was passed by requisite
majority. The Collector and the Commissioner also did not find in
favour of the Sarpanch and Upsarpanch and hence they approached the
High Court. The observations of the High Court in paragraph 12 and 14
of the judgment may be usefully reproduced as under-
“12. No doubt, there is no specific provision under the
Bombay Village Panchayat Act, 1958, prohibiting the
Tahsildar from adjourning the meeting which is called under
sub-section (2) of section 35. However, it has to be noted that
it is a special meeting called for the consideration of no
confidence motion. Section 35 requires that the members,
Sarpanch and Upsarpanch be served with the notice
regarding no confidence motion and once it is brought to their
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notice that such a meeting is to be held for consideration of
no confidence motion, that is sufficient compliance of the
provisions of section 35. It is upto the concerned member or
the Sarpanch or the Upasarpanch to attend the meeting or not
to attend the meeting, to take part in the meeting or not to
take part in the meeting, to vote or not to vote. If the
Sarpanch or Upasarpanch fail to avail the opportunity for
any reason, the meeting cannot be considered illegal. It also
cannot be held that they were not allowed to exercise right to
speak and right to vote at the time of meeting.
13. …
14. It also has to be noted that once a meeting of the Gram
Panchayat or any other local authority is called, then if there
is coram to conduct the business of the meeting, then meeting
has to take place. There is no provision under any law
applicable to Grampanchayat, Zilla Parishad, Municipal
Council, the local authorities, that such a meeting can be
adjourned only because a member or two request that the
meeting be adjourned. Only on certain specified grounds, the
meetings are adjourned. But such meetings are never
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adjourned on the ground that a member or two not being able
to attend the meeting. If that is the position with general
meetings of the local bodies, then it must be more strict with
respect to special meeting called for consideration of no
confidence motion. If the meeting is conveyed to transact the
business, then the meeting has to be held and the motion
must be put for discussion.”
ig (emphasis supplied)
34. The learned counsel for the petitioner submitted that it can
be deduced from these observations that a special meeting cannot be
adjourned. The learned counsel for the contesting respondents submitted
that such a ratio cannot be deduced from these observations and all that
the Court held that was that a meeting could not be adjourned only
because a member or two request that meeting be adjourned.
35. I have carefully considered the observations of the Division
Bench as also the contentions of both the learned counsel. It cannot be
said that the ratio of judgment is that such a meeting cannot be
adjourned. The ratio is that meeting could not be adjourned on the
grounds raised by Sarpanch and Upasarpanch in that case. The Division
had specifically observed that only on certain grounds meetings could be
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adjourned. In fact the Meeting Rules do provide for adjourning meetings
and the procedure to be followed.
36. Rules 10 and 14 of these Meeting Rules read as under-
“10. If within thirty minutes from the time appointed for a
meeting, there be no quorum, the meeting if called upon the
requisition of members, shall be dissolved in any other case,
the person presiding shall adjourn the meeting to such hour
on the following or some other day as he may reasonably fix
and a notice of such adjournment shall be placed on the
notice-board at the office of the panchayat and the business
which would have been brought before the original meeting,
had there been a qorum thereat, shall be brought before the
adjourned meeting and may be disposed of at such meeting or
at any subsequent adjournment thereof whether there be a
quorum present or not.”
“14. Any meeting may, with the consent of the majority of
the members present, be adjourned from time to time. But no
business shall be transacted at any adjourned meeting other
than that left undisposed of at the meeting from which the
adjournment took place. The date, time and place of the
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adjourned meeting shall be announced at the meeting and no
separate notice shall be necessary.”
Even in the case at hand, the meeting was effectively adjourned for first
fifteen minutes to wait for four members who did not turn up. Thus,
there is no bar on adjournments, provided such adjournment is for good
reason.
37. This takes me to the fourth objection raised by the learned
counsel for the petitioner, namely, change in the complexion of electoral
college, due to election of 17th member. Even the learned counsel for
contesting respondents referred to this development. Subsequent election
of 17th member would be inconsequential since what has to be found out
whether on 2nd September 2009 the date on which meeting was
convened, the petitioner had lost confidence of more than 2/3rds of
members of the Panchayat entitled to sit and vote. Therefore, only those
who were entitled to sit and vote on that date would have to decide the
fate of the petitioner.
38. The contentions of the learned counsel for the petitioner
that this would deprive the 17th member of exercising his rights has to be
rejected, since the relevant date on which the decision was to be made
was 2nd September 2009, when the 17th member was not on the scene. In
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fact the arguments of the learned counsel for petitioner, that a meeting
had to be held within 7 days only and his advocating the cause of the
17th member subsequently elected, amounts to blowing hot & cold in the
same breath.
39. The learned counsel for the petitioner submitted that no
court could set the clock back or freeze a moment in time and cannot be
oblivious to a subsequent development. As rightly pointed out by the
learned counsel for contesting respondents, the Courts (and in this case
the authorities) essentially decide a lis on the basis of situation as it
existed on the date cause of action accrued. They examine the events at
that point of time and decide the rights of parties as then existing. The
rule of considering subsequent developments, as in the cases under the
Rent Act, is an exception, and no case for carving out such an exception
is pleaded or made out in the petition. Consequently, even the fourth
reason, for not recommencing the proceedings of meeting held on 2nd
September 2009 must be rejected.
40. The learned counsel for the contesting respondents relied
upon a judgment of Division Bench in the case of – Nimba Rajaram
Mali Vs. Collector, Jalgaon & Ors. [1999(1) Bom. C.R.546] wherein
the Court held that precise reasons for passing no confidence motion
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need not be specified in the motion and that the motion could not be
vitiated on this ground. In that case the Court found that each and every
ground had been discussed by members and thereafter no confidence
motion was put to vote and was passed by majority. The Court held that
verdict of majority must prevail in democracy.
41. In view of the foregoing, the writ petition is allowed. The
impugned judgment and orders passed by the Commissioner and the
Collector as also the resolution dated 2nd September 2009 by respondent
No.1 Gram Panchayat is quashed and set aside.
42. Respondent No.17 Tahsildar, Pali Sudhagad is directed to
summon the members who were present at the meeting dated 2nd
September 2009 by appropriate notice to consider ‘no confidence
motion’, notice whereof been received by him on 28th August 2009.
Such meeting shall be held on 11th June, 2010 at 11 a.m. (so as to leave
sufficient time for the aggrieved parties to question this judgment). The
Tahsildar shall follow the procedure in Rule 17 to 27 of the Meeting
Rules and then decide the fate of the resolution which may be moved at
such meeting. By way of abundant caution, it is clarified that the
Tahsildar shall first invite the members who had given notice dated 28th
August, 2009 to move and second the resolution. If the resolution is not
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moved or seconded, there would be no question of any further
proceeding. If it is so moved and seconded, the Tahsildar shall proceed
to permit discussion at the meeting as per Rules, giving opportunity to
all members, including the petitioner to put forth what they would like to
say and shall thereafter put the resolution to vote.
. Rule is made absolute in the above terms.
Sd/-
[R. C. CHAVAN, J.]
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