{"id":74132,"date":"2009-03-30T00:00:00","date_gmt":"2009-03-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shrikrushna-vs-additional-commissioner-on-30-march-2009"},"modified":"2016-06-11T22:38:37","modified_gmt":"2016-06-11T17:08:37","slug":"shrikrushna-vs-additional-commissioner-on-30-march-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shrikrushna-vs-additional-commissioner-on-30-march-2009","title":{"rendered":"Shrikrushna vs Additional Commissioner on 30 March, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Shrikrushna vs Additional Commissioner on 30 March, 2009<\/div>\n
Bench: S.R. Dongaonkar<\/div>\n
                                  1\n\n        IN THE HIGH COURT OF JUDICATURE AT BOMBAY:\n\n\n\n\n                                                                        \n                     NAGPUR BENCH: NAGPUR\n                  WRIT PETITOIN NO.1037 OF 2009\n\n\n\n\n                                                \n    PETITIONER:\n\n\n\n\n                                               \n             Shrikrushna s\/o Digambar Jadhav, aged about : 50\n             years, occupation: agriculturist, r\/o Brahmi, Tahsil\n             Darwha, District Yavatmal.\n\n\n\n\n                                      \n                               VERSUS\n\n    RESPONDENTS:\n                          \n    1]     Additional Commissioner, Amravati Division,\n                         \n           Amravati, Tq. & District : Amravati.\n    2]     Additional Collector, Yavatmal, District : Yavatmal.\n    3]     Presiding Officer\/ Tahsildar, Darwha Tahsil, district :\n           Yavatmal.\n          \n\n\n    4]     Grampanchayat Brahmi, Tq. Darwha District :\n       \n\n\n\n           Yvatmal through Its Secretary\n    5]     Motilal Sitaram Khobragade, aged about: adult, R\/o\n           Brahmi, Tq. Darwha, District : Yavatmal.\n    6]     Himmat Prabhakar Shirsat aged about : Adult,\n\n\n\n\n\n           Occupation : Agriculturist, R\/o Brahmi, Tq. Darwha,\n           District : Yavatmal.\n    7]     Gajanan Pandurang Solanke, aged about : Adult,\n           Occupation : Agriculturist, R\/o Brahmi, Tq. Darwha,\n\n\n\n\n\n           District : Yavatmal.\n    8]     Sau. Rajendrabai w\/o Hemchandra Khobragade,\n           aged - about : Adult, Occupation : House hold, R\/o\n           Brahmi, Tq. Darwha, District : Yavatmal.\n    9]     Narayan Dattaram Jadhav, aged about : Adult,\n           Occupation : Agriculturist, R\/o Brahmi Tq. Darwha,\n           District : Yavatmal.\n\n\n\n\n                                                ::: Downloaded on - 09\/06\/2013 14:28:45 :::\n                                   2\n\n    ================================\n    Shri A.V. Gawande, Advocate for petitioner.\n\n\n\n\n                                                                        \n    Shri A.S. Sonare, A.G.P. for respondent no.1 to 3\n    None present for respondent no.4\n\n\n\n\n                                               \n    Shri P.S. Patil Advocate for respondent no. 5 6,7,8.\n    None present for respondent no.9\n    ================================\n\n\n\n\n                                              \n    CORAM : S.R. DONGAONKAR, J.\n<\/pre>\n
    DATE: 30.3.2009<\/p>\n
    ORAL JUDGMENT
\n             Heard Shri A.V.Gawande, Advocate for petitioner,<\/p>\n
    Shri A.S. Sonare, A.G.P. for respondent no.1 to 3 & Shri P.S.<\/p>\n
    Patil Advocate for respondent no. 5 6,7,8. None present for<\/p>\n
    respondent no.4 & 9.\n<\/p>\n
             Rule. Made returnable forthwith. Heard finally with<\/p>\n
    the consent of parties.\n<\/p>\n
    2]       Petitioner is challenging the order passed by the<\/p>\n
    Additional Commissioner, Amravati Division, Amravati in<\/p>\n
    Appeal NO.BVP\/35(3)(c)\/08-09 of Brahmi whereby the<\/p>\n
    appeal of the petitioner to challenge order of Additional<\/p>\n
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\n                                    3<\/span><\/p>\n
    Collector in the proceeding No.21\/69\/08-09 Mouja Brahmi<\/p>\n
    Tahsil Darwha, District : Yavatmal, was rejected.\n<\/p>\n
    3]        The facts relevant for the disposal of this petition<\/p>\n
    may be stated thus. Petitioner is the elected Sarpanch of<\/p>\n
    Village   Gram    Panchayat,       Brahmi   from      18.11.2008.\n<\/p>\n
    Respondent no.5 to 8, members of Gram Panchayat, Brahmi,<\/p>\n
    gave a notice to respondent no.3- Tahsildar for moving no-\n<\/p>\n
    confidence motion against petitioner. Respondent no.3 –\n<\/p>\n
    Tahsildar issued notice to the members of the Gram Panchayat<\/p>\n
    for the special meeting for this purpose, which was scheduled<\/p>\n
    on 24.11.2008. On 24.11.2008, the special meeting for<\/p>\n
    consideration of no confidence motion was convened at 2.00<\/p>\n
    p.m. Petitioner raised written objection before respondent<\/p>\n
    no.3 – Presiding Officer of the said special meeting regarding<\/p>\n
    non compliance of the mandatory provisions of rule 2(4) of<\/p>\n
    the Bombay Village Panchayat (Sarpanch & Upsarpanch<\/p>\n
    Motion of No Confidence) Rules. According to the petitioner,<\/p>\n
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\n                                    4<\/span><\/p>\n
    Tahsildar had failed to provide the text of no confidence<\/p>\n
    motion and charges against the petitioner. According to the<\/p>\n
    petitioner he was not given opportunity of hearing, as he was<\/p>\n
    not supplied with the notice under rule 2(1) of the said rules<\/p>\n
    along with the notice which was sent to him. The motion was<\/p>\n
    carried by 4 : 2. The passing of this resolution of no-\n<\/p>\n
    confidence against the petitioner was challenged by the<\/p>\n
    petitioner before the Collector by filing dispute under section<\/p>\n
    35(3)(b) of Bombay Village Panchayat Act. The Additional<\/p>\n
    Collector, however, found that the service of notice was<\/p>\n
    proper. He also found that the petitioner was heard and no<\/p>\n
    confidence motion was properly carried. Therefore, he<\/p>\n
    dismissed the complaint of the petitioner.\n<\/p>\n
    4]       The unsuccessful petitioner then filed appeal before<\/p>\n
    the respondent no.1 – Commissioner, Amravati Division,<\/p>\n
    Amravati to challenge the said order of the Additional<\/p>\n
    Collector. Learned Additional Commissioner – respondent<\/p>\n
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\n                                     5<\/span><\/p>\n
    no.1 by his order dated 18.2.2009 dismissed the said appeal. It<\/p>\n
    is this order which is challenged by the petitioner in this<\/p>\n
    petition.\n<\/p>\n
    5]          Learned counsel for the petitioner has emphasized,<\/p>\n
    submitting that the mandatory provisions of Bombay Village<\/p>\n
    Panchayat (Sarpanch & Upsarpanch No Confidence Motion)<\/p>\n
    Rules, rule 2 of the said rules was not complied by the<\/p>\n
    Tahsildar. In fact the notice received by the petitioner was not<\/p>\n
    accompanied with       the copy of the no confidence motion,<\/p>\n
    which was issued by the respondent no. 5 , 6 and 8 under rule<\/p>\n
    2(i). It was not at all supplied. Therefore, the petitioner could<\/p>\n
    not make his defence in the special meeting called by<\/p>\n
    Tahsildar in which the alleged said no confidence motion was<\/p>\n
    carried. According to him, the said rule was mandatory and<\/p>\n
    because the copy of the no confidence motion was not served<\/p>\n
    on him, along with the notice for special meeting, no proper<\/p>\n
    opportunity was given to him to defend himself in the special<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 14:28:45 :::<\/span>
\n                                    6<\/span><\/p>\n
    meeting which was called for consideration of no confidence<\/p>\n
    motion. Thus according to him, he was not granted reasonable<\/p>\n
    opportunity under principles of natural justice. Proceedings of<\/p>\n
    the special meting held by Tahsildar dated 24.11.2008 is<\/p>\n
    vitiated. He has relied on the judgment of this court reported<\/p>\n
    in 2004(2) Mh.L.J. 1004 Yamunabai Laxman Chavan and<\/p>\n
    others ..vs.. Sarubai Tukaram Jadhav and others to contend<\/p>\n
    that although the provisions of Rule 2(2) of the said Rules are<\/p>\n
    held to be directory, the petitioner could not take effective<\/p>\n
    part in the special meeting, as he was not supplied with the<\/p>\n
    copy of the no confidence motion and therefore even though<\/p>\n
    the said rule is directory, the proceedings stood vitiated as it<\/p>\n
    was not the lapse on the part of the Tahsildar for non<\/p>\n
    compliance of some technical aspects. Therefore, according to<\/p>\n
    him, the proceedings in the said meeting cannot be held to be<\/p>\n
    legal, consequently unseating the petitioner as Sarpanch. In<\/p>\n
    the alternative it is his submission that the matter may be<\/p>\n
    remitted back for holding fresh special meeting to allow the<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 14:28:45 :::<\/span>
\n                                    7<\/span><\/p>\n
    said no confidence motion to be considered afresh after giving<\/p>\n
    proper notice to the petitioner or opportunity to represent his<\/p>\n
    case in the special meeting.\n<\/p>\n
    6]       Learned A.G.P. for respondent no.1,2 and 3 has<\/p>\n
    supported the impugned order.\n<\/p>\n
    7]<\/p>\n
             Learned counsel for respondent no.5 to 8 while<\/p>\n
    supporting the order impugned; contended that when rule<\/p>\n
    2(2) of the said Rules is directory, technical flaw in the<\/p>\n
    procedure cannot vitiate the special meeting proceedings<\/p>\n
    which is specially called for consideration for no confidence<\/p>\n
    motion. According to him in the present case there were six<\/p>\n
    members in the gram Panchayat, four of them did not support<\/p>\n
    the petitioner. In fact even now they are not supporting the<\/p>\n
    petitioner. Therefore the petitioner does not command<\/p>\n
    majority in the Gram Panchayat and 2\/3 majority i.e. 4<\/p>\n
    respondents are against the petitioner. He has also, relied on<\/p>\n
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\n                                     8<\/span><\/p>\n
    the affidavits of two panchas in whose presence the notice of<\/p>\n
    special meeting was affixed on the house of the petitioner. As<\/p>\n
    his brother had declined to take notice on behalf of the<\/p>\n
    petitioner. Affidavit of these panchas Subhash and Vijay are<\/p>\n
    filed in the proceedings of this petition, both; show that in<\/p>\n
    their presence the peon of Tahsildar Office had affixed the<\/p>\n
    copy of the notice of meeting along with copy of requisition of<\/p>\n
    the special meeting filed by the members of the Gram<\/p>\n
    Panchayat dated 8.11.2008 to the house of the petitioner.\n<\/p>\n
    They stated on affidavit that this notice was fixed along with<\/p>\n
    the copy of no confidence motion \/ requisition moved by the<\/p>\n
    respondents no. 5 to 8. Therefore, according to him, the notice<\/p>\n
    was validly served on the petitioner and the resolution of no<\/p>\n
    confidence against petitioner passed in the said case is<\/p>\n
    perfectly valid. He also relied on the observations of this Court<\/p>\n
    in aforesaid Yamunabai’s case, particularly 7 & 11 of the said<\/p>\n
    judgment.\n<\/p>\n
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\n                                    9<\/span><\/p>\n
    8]       I have considered the submissions of the parties.\n<\/p>\n
    9]       It is necessary to note the contents of the minutes of<\/p>\n
    the special meeting, at this stage. Relevant paragraph of the<\/p>\n
    said minutes reads thus:\n<\/p>\n
            “On 18.11.2008, by remaining present<\/p>\n
            personally in the Tahsil Office of Darwha, the
\n            above members of Gram Panchayat Bramhi,<\/p>\n
            Tahsil Darwha made written submission to the
\n            Tahsildar Darwha to file Ravindra Khas
\n            (Probably fresh application ) against Shri<\/p>\n
            Shrikrishna Digambar Jadhao, the Sarpanch of
\n            Mouza Bramhi. Thereupon, written notice was
\n            served upon the concerned asking them to<\/p>\n
            attend the special meeting of 2.00 p.m. sharp
\n            in the office of the Gram Panchayat, Bramhi X<\/p>\n
            omission X remained present as the Presiding
\n            Officer.\n<\/p><\/blockquote>\n
                 The said filed application was read out in<\/p>\n
            details in the meeting. Following points have
\n            been mentioned in the said application as
\n            regards to no confidence motion
\n            A) The existing Sarpanch Shri Shrikrishna
\n            Digambarrao Jadhao does not run the affairs<\/p>\n
            of the Gram Panchayat by taking any member
\n            into confidence.\n<\/p><\/blockquote>\n
            B) The existing Sarpanch does illegal activities
\n            by misusing his post.\n<\/p><\/blockquote>\n
            C)The existing Sarpanch intentionally neglects
\n            the electricity and water problems in the
\n            village.\n<\/p><\/blockquote>\n
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\n                             10<\/span><\/p>\n
     D) After making recovery of the taxes of Gram
\n     Panchayat, the existing Sarpanch directly<\/p>\n
     spends that amount instead of depositing it in
\n     the bank.\n<\/p>\n
          Detailed information was given as regards
\n     to above all the four points in the meeting.
\n     Detailed discussion is not held in the meeting.\n<\/p>\n
     The members are not taken into confidence
\n     while doing any work. He tries to divide the
\n     members. The affairs are not carried out
\n     unanimously. He issues domicile certificate to<\/p>\n
     those persons who are not actual residents of
\n     the village, instead of issuing it to those who<\/p>\n
     are actual residents of the village. On making
\n     request to clear choke up as regards the dam,
\n     it is not done. Electric bulbs are fitted only at<\/p>\n
     the time of the festivals. The amount collected
\n     by way of recovery of Gram Panchayat’s house
\n     tax and water tax is used for personal work by<\/p>\n
     keeping it with self, instead of depositing it in
\n     the bank. Resolution was passed to deposit the<\/p>\n
     recovery amount in the bank. But, the said
\n     resolution is not implemented. The amount is
\n     spent directly<\/p>\n
        On giving opportunity to the Sarpanch to
\n     give explanation on the said points, he gave
\n     his explanation as under:\n<\/p>\n
          He explained that the points raised in no
\n     confidence motion are wrong. The domicile<\/p>\n
     certificates are issued only to the residents. No
\n     avoidance is shown while issuing the
\n     certificates. No such resolution was passed
\n     where the present members were not taken
\n     into confidence. Water problem is solved
\n     immediately. Similarly, electric lights are also
\n     fitted regularly. However, due to the problems<\/p>\n
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\n                             11<\/span><\/p>\n
     faced in the rainy season and unsound
\n     financial position of the Gram Panchayat, the<\/p>\n
     electric lights are fitted only at the time of the
\n     festivals. (He further explained that) the<\/p>\n
     statements made against him are wrong.
\n         Entire powers of recovery are as earlier up-
\n     till now any work is got done through the<\/p>\n
     Secretary by giving order to him. Therefore,
\n     the question of spending the amount for
\n     personal use does not arise. The said village
\n     has been made “Hagandari Mukta” (free from<\/p>\n
     easing in open) and the President award has
\n     been earned for the village. Development<\/p>\n
     work have been done from time to time. The
\n     concerned members have filed an application
\n     to move no confidence motion only out of<\/p>\n
     personal differences.\n<\/p>\n
          The members who were present raised
\n     supplementary point regarding the remaining<\/p>\n
     points. Houses and latrines in the village were
\n     dismantled. House bills were – – – destroyed.\n<\/p>\n
     xx omission xx were legally dismantled. When
\n     the village is free of Hagandari (easing place
\n     in open) who go outside for easing. Due to<\/p>\n
     personal reasons, latrines of some people were
\n     dismantled. There was no development of the
\n     village in any way. This fact is mentioned in
\n     the points.\n<\/p>\n
          The Sarpanch of Gram Panchayat Bramhi<\/p>\n
     submitted his objection on some official
\n     points.\n<\/p>\n
     A) It was not mentioned in the notice for the
\n     meeting, issued on 17.11.2008 that it was
\n     called for passing No Confidence Motion.
\n     B) It was not mentioned as to on which date
\n     and for what reason the notice was issued.\n<\/p>\n
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\n                                 12<\/span><\/p>\n
           C) The notice was not served on the people
\n           present in the village.\n<\/p>\n
                 The objection application of the above
\n           person was rejected by passing a detailed<\/p>\n
           written order on the aforesaid points. He was
\n           informed about the said application and order
\n           passed.     Total No. of members of Gram<\/p>\n
           Panchayat Bramhi is 7 out of whom one
\n           member was declared as disqualified. At
\n           present total No. of members is 6. 2\/3 of the
\n           said no. of members is required for passing No<\/p>\n
           confidence motion and on actual voting, there
\n           were four (4) votes, in favour of the motion<\/p>\n
           i.e. of\n<\/p>\n
           1) Shri Ram Sitaram Khobragade\n<\/p>\n
           2) Shri Himmat Prabhakar Sirsat<\/p>\n
           3) Shri Gajanan Pandurang Solanke\n<\/p>\n
           4) Sau.Rajendrabai Premchand Khobragade
\n           Similarly there were two 2) votes against the<\/p>\n
           motion i.e. of 1)Shri Shrikrishna Digambarrao
\n           Jadhao and 2) Shri Narayanrao Dattaramji<\/p>\n
           Jadhav. Hence it was declared that the No
\n           confidence motion against Shri Shrikrishna
\n           Digambarrao Jadhav, Sarpancha of Gram<\/p>\n
           Panchayat Bramhi was passed. A vote of
\n           thanks was proposed to the persons present
\n           and the meeting of the members was declared
\n           over.”\n<\/p>\n
    10]     Petitioner has contended that the relevant objection<\/p>\n
    was submitted by him in writing. Respondent Tahsildar had<\/p>\n
    rejected that objection without any application of mind and<\/p>\n
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\n                                    13<\/span><\/p>\n
    therefore, he was not given proper opportunity to speak in<\/p>\n
    defence in the meeting.\n<\/p>\n
    11]       Perusal of the above minutes would show that<\/p>\n
    petitioner was given opportunity to explain the charges which<\/p>\n
    were sought to be pressed at the time of special meeting in<\/p>\n
    support of no confidence motion. Therefore, it cannot be said<\/p>\n
    that he was not given proper opportunity to explain his side.\n<\/p>\n
    12]       As held by this court in Yamunabai’s case referred to<\/p>\n
    above, provisions of rule 2((2) are directory. The action of no<\/p>\n
    confidence motion is not a punitive action and therefore, there<\/p>\n
    is no necessity to give opportunity of hearing as it is required<\/p>\n
    to be given in the matter where punitive action is sought to be<\/p>\n
    taken. Paragraph 7 of the said judgment may be referred in<\/p>\n
    this context. It is thus:\n<\/p>\n
             “7. The essence of a motion of no confidence
\n             is the expression by the elected members of a
\n             legislative body of a want of confidence or faith
\n             in the person or persons against whom the<\/p>\n
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\n                                   14<\/span><\/p>\n
           motion is moved. A motion of no confidence is
\n           not a removal for misconduct and it is not in<\/p>\n
           the nature of disciplinary action adopted on
\n           account of charges of misbehaviour. A motion<\/p>\n
           of no confidence is what it states it is : an
\n           expression of a lack of confidence in the
\n           person. On the other hand, and in<\/p>\n
           contradistinction to a motion of non
\n           confidence, the Act makes provisions for the
\n           removal of a member of the Gram Panchayat in
\n           section 39.Section 39 contemplates the<\/p>\n
           removal of any member of the Panchayat, the
\n           Sarpanch or Upa-Sarpanch where he is guilty<\/p>\n
           of (i) misconduct in the discharge of his duties;
\n           or (ii) of a disgraceful conduct; or (iii) neglect
\n           or incapacity to perform his duty; or (iv) where<\/p>\n
           such person is persistently remiss in the
\n           discharge thereof. The provision for removal
\n           has to be distinguished from an expression of<\/p>\n
           no confidence. A removal is a disciplinary
\n           measure and in view of the well settle position<\/p>\n
           of law, a removal has to be stated grounds after
\n           holding an enquiry. An enquiry is in fact,
\n           provided by sub section (1) of section 39. On<\/p>\n
           the other hand, a motion of no confidence is
\n           the ultimate expression by the members of a
\n           collective body, of the expression of a lack of
\n           faith in the person against whom that motion is
\n           moved.”\n<\/p><\/blockquote>\n
    Paragraph 9 of the said judgment reads thus:\n<\/p>\n
            “9. Under the Bombay Village Panchayat Act,
\n            1958, what is made mandatory is (i) The<\/p>\n
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\n                            15<\/span><\/p>\n
     moving of a motion of no confidence by a
\n     stipulated number of members of the Gram<\/p>\n
     Panchayat (one third); (ii) Those who move
\n     the motion must be entitled to sit and vote at a<\/p>\n
     meeting of the panchayat; (iii)The furnishing
\n     of a notice of requisition to the Tahsildar as
\n     prescribed; (iv)The convening by the Tahsidlar<\/p>\n
     of a special meeting of the Panchayat within a
\n     period of seven days of the receipt of the
\n     notice at the time and place specified; (v) The
\n     entitlement of the Sarpanch and Upa-Sarpanch<\/p>\n
     to speak or to otherwise participate in the
\n     proceedings and to vote upon the resolution;\n<\/p>\n
     and (vi) The passing of the motion by a
\n     majority of not less than two thirds of the total
\n     members of the Panchayat entitled to sit and<\/p>\n
     vote. The provisions which the legislature
\n     considered as being mandatory in order to
\n     constitute a valid motion of no confidence<\/p>\n
     have been specified in sub sub section (1)(2)
\n     and (3) of section 35. While construing the<\/p>\n
     rules what must be borne in mind is that the
\n     act mandates the giving of a notice to the
\n     Tahsidlar as prescribed. In construing as to<\/p>\n
     which part of the rules is mandatory, regard
\n     must be had to the provisions of the parent
\n     legislation because the legislature has
\n     indicated in clear terms therein those
\n     provisions in respect of which a punctilious<\/p>\n
     compliance is expected. The members of the
\n     Gram Panchayat who seek to move a motion
\n     of no confidence against the Sarpanch or Upa
\n     Sarpanch or both are required to furnish a
\n     notice of their intention to do so to the
\n     Tahsildar. Before he convenes the meeting, the
\n     Tahsildar has to be satisfied that the motion<\/p>\n
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\n                            16<\/span><\/p>\n
     has been moved by one third of the total
\n     number of members entitled to sit and vote.\n<\/p>\n
     The Act then provides that the Tahsidlar must
\n     convene a meeting of the Panchayat for<\/p>\n
     considering the motion within a period of
\n     seven days. When he convenes a special
\n     meeting of the Panchayat, the Tahsildar<\/p>\n
     furnishes an intimation to the members of the
\n     Panchayat including the Sarpanch and Upa
\n     Sarpanch of the convening of the meeting. Sub
\n     section (2) of section 35 requires the Tahsildar<\/p>\n
     to convene a special meeting of the Panchayat
\n     for considering the motion and it is implicit<\/p>\n
     therein that an intimation has to be furnished
\n     to all members of the Panchayat including the
\n     Sarpanch and Upa-Sarpanch who are sought<\/p>\n
     to be proceeded against. In the event that the
\n     Sarpanch and the Upa Sarpanch seek, in
\n     addition, copies of the actual requisition that<\/p>\n
     has been issued by the members of the
\n     Panchayat, it is open to them to move the<\/p>\n
     Tahsildar by submitting an application.
\n     However, it would be impermissible for the
\n     court to hold that resolution which has been<\/p>\n
     duly passed by a two third majority, upon a
\n     requisition moved by one third of the members
\n     of the Panchayat eligible to sit and vote, a t a
\n     meeting convened by the Tahsildar in
\n     accordance with law will stand invalidated<\/p>\n
     merely because the Tahsildar has not sent a
\n     copy of the actual requisition to the Sarpanch
\n     or the Upa Sarpanch as the case may be. Such
\n     a requirement cannot be read into the
\n     provisions of section 35(2). The provisions
\n     contained in Rule 2(2) must be regarded as
\n     directory having regard to the true nature and<\/p>\n
                                          ::: Downloaded on – 09\/06\/2013 14:28:46 :::<\/span>
\n                                  17<\/span><\/p>\n
           purpose of a motion of no confidence. A
\n           motion of no confidence is not akin to<\/p>\n
           disciplinary proceedings or a provision for
\n           removal for misconduct. A removal for<\/p>\n
           misconduct is punitive. In such a case, a
\n           person who is sought to be proceeded against
\n           has to be furnished with a charge sheet and<\/p>\n
           the removal must take place by following an
\n           enquiry that is consistent with the principles of
\n           natural justice. A motion of no confidence on
\n           the other hand, does not partake of a punitive<\/p>\n
           character nor is it based on charges of
\n           misconduct which have to be proved. A<\/p>\n
           motion of no confidence is the fundamental
\n           expression of the collective will of the
\n           members of a legislative body that they lack<\/p>\n
           confidence in one of their own. The contention
\n           that the right to speak at the meeting given to
\n           a Sarpanch or Upa Sarpanch requires that the<\/p>\n
           requisition which has been moved              be
\n           furnished to them cannot be acceded to.\n<\/p>\n
           Should the Sarpanch or Upa-Sarpanch seek to
\n           have copies of the requisition, it is open to
\n           them to apply to the Tahsildar. However,<\/p>\n
           whereas in the present case the Sarpanch or
\n           Upa-Sarpanch chooses to participate in the
\n           meeting whereafter a resolution is duly passed
\n           by the requisite majority, it would stultify the
\n           democratic process if the court were to nullify<\/p>\n
           the resolution on the ground that a copy of the
\n           requisition was not furnished to the Sarpanch
\n           or Upa-Sarpanch.”\n<\/p>\n
    Will show that when there is some opportunity given to the<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 14:28:46 :::<\/span>
\n                                    18<\/span><\/p>\n
    Sarpanch to explain his side when no confidence motion is<\/p>\n
    moved against him would suffice.\n<\/p>\n
    13]      I am aware that if there is glaring violation of<\/p>\n
    mandatory procedure, interference by this court or by<\/p>\n
    statutory authorities would be warranted in view of the<\/p>\n
    judgment of this court in 1998(3) Mh.L.J. Nimba Rajaram<\/p>\n
    Mali ..vs.. Collector, Jalgaon and others. But then, here is the<\/p>\n
    case where members of Gram Panchayat who voted against<\/p>\n
    petitioner are respondents, they are more in number in the<\/p>\n
    strength of the members of six in the said Gram Panchayat.\n<\/p>\n
    There is no difficulty in coming to the interference that it is<\/p>\n
    2\/3 majority which is against the petitioner. Probability<\/p>\n
    expressed by the petitioner is that if he is allowed to explain<\/p>\n
    his stand in the special meeting, there would be some change<\/p>\n
    on one or two respondents as regards their stand in support of<\/p>\n
    the motion of the no confidence. It can not be a sufficient<\/p>\n
    reason to interfere with the impugned order, in the extra<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 14:28:46 :::<\/span>
\n                                     19<\/span><\/p>\n
    ordinary writ jurisdiction of this court.\n<\/p>\n
    14]       Learned Commissioner in the impugned order has<\/p>\n
    observed in paragraph 5 as under:\n<\/p>\n
             “5.    It is fact that the Gram Panchayat is
\n             constituted of seven members body and
\n             appellant is one of them. Notices were served<\/p>\n
             legally on all the members. Appellant’s notice
\n             was affixed on his house in presence of<\/p>\n
             panchas and therefore, it is legally served. Six
\n             members including the appellant were present
\n             in the special meeting convened by the<\/p>\n
             Tahsildar. Darwha. Discussion took place in
\n             the meeting. Thereupon, Tahsildar has
\n             conducted the voting by raising of hands as<\/p>\n
             there is no request of secret ballot. As the
\n             appellant was himself present in the special<\/p>\n
             meeting then he cannot raised the issue of
\n             service of notice. Out of six members four
\n             voted in favour of the motion and two raised<\/p>\n
             hand against the motion. Hence, Tahsildar,
\n             Presiding Officer, declared the motion as
\n             passed. Ultimately, the resolution came to be
\n             passed by majority. No confidence motion
\n             passed by majority deserves to be maintained<\/p>\n
             is upheld by the lower court, hence i pass the
\n             following order:\n<\/p><\/blockquote>\n
                    The appeal being devoid of merit is
\n             dismissed. The order of lower court including
\n             that of passing of no confidence motion against
\n             the appellant are upheld.”\n<\/p><\/blockquote>\n
                                                  ::: Downloaded on – 09\/06\/2013 14:28:46 :::<\/span>
\n                                      20<\/span><\/p>\n
    Thus he was in the knowledge of say of Panchas who had filed<\/p>\n
    affidavits in this petition, as it was matter of record.\n<\/p>\n
    15]       Tahsildar had conducted the voting by raising of<\/p>\n
    hands, as there is no request of secret ballot. The discussion<\/p>\n
    took place in the meeting. As already pointed out above, four<\/p>\n
    members who had voted in favour of the motion are present<\/p>\n
    respondents and they are still not supporting the petitioner.\n<\/p>\n
    In democratic set up; the will of majority has to prevail. I have<\/p>\n
    already pointed out that there is no punitive action like<\/p>\n
    disqualification of the     Sarpanch is contemplated. In my<\/p>\n
    opinion, no interference is called for with the order impugned;\n<\/p>\n
    in this petition.\n<\/p>\n
    16]      In sequel the petition is liable to be dismissed. The
\n    same is dismissed. No order as to cost.\n<\/p>\n
                                                        JUDGE<\/p>\n
    SMP<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 14:28:46 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Shrikrushna vs Additional Commissioner on 30 March, 2009 Bench: S.R. Dongaonkar 1 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-74132","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nShrikrushna vs Additional Commissioner on 30 March, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/shrikrushna-vs-additional-commissioner-on-30-march-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shrikrushna vs Additional Commissioner on 30 March, 2009 - 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