Bombay High Court
Dayandev Mohiniraj Nipunage & Another vs The State Of Maharashtra & Others on 27 October, 1999
Equivalent citations: 2000(2)BOMCR849, 2000 A I H C 2135, (2000) 1 MAHLR 729, (2000) 2 ALLMR 371 (BOM), (2000) 2 BOM CR 849
Author: B.B. Vagyani
Bench: B.B. Vagyani
ORDER V.K. Barde, J.
1. In these two writ petitions, common points have arisen for consideration and, therefore, those are being disposed of by common judgment.
2. The petitioners in both petitions and the respondent Nos. 5 to 9 are the elected members of Mukindpur Gram Panchayat (Taluka : Newasa, District: Ahmednagar). The petitioner in Writ Petition No. 4431/1999, Dnyandeo, was elected as Upa-sarpanch. While the petitioner in Writ Petition No. 4432/1999, Sau. Manda Ingale, was elected as Sarpanch of the said Gram Panchayat in the meeting held on 30-7-1998.
3. On 21-1-1999, the respondent Nos. 5 to 9 gave notices to Tahsildar, regarding no confidence motion against both the Sarpanch and Upasarpanch. The Tahsildar then on 22-1-1999, issued notices to all members of the Gram Panchayat including Sarpanch and Upasarpanch, that the meeting for the consideration of no confidence motions against the Sarpanch and Upsarpanch will be held on 29-1-1999. Accordingly, on 29-1-1999, first meeting was held for considering the no confidence motion against the Sarpanch and then the meeting for consideration of no confidence motion against the Upasarpanch.
4. This Sarpanch, Smt. Ingale, had sent a letter to the Tahsildar informing that she was ill and was unable to attend the meeting and, therefore, the meeting be adjourned. Similarly, the Upasarpanch, Shri Nipunage, had sent a letter to the Tahsildar, that he had to attend funeral and, therefore, it was not possible for him to attend the meeting and the meeting be adjourned. Inspite of these letters, the meeting was not adjourned. The motions of no confidence against the Sarpanch and Upasarpanch were considered and were carried by majority. Both the petitioners then raised a dispute before the Collector with respect to the passing of no confidence motion. However, the Collector, Ahmednagar, rejected the contentions of the Sarpanch and Upasarpanch. Hence, both of them filed appeals before the Commissioner, Nashik Division, Nashik. The learned Additional Commissioner, Nashik Division, Nashik, dismissed both the appeals. Hence, these writ petitions.
5. Heard Shri V.B. Mhase, Counsel for the petitioners, Shri K.M. Babhulgaonkar, Assistant Government Pleader, for the respondent Nos. 1 to 4 and Shri S.B. Deshmukh, Counsel for the respondent Nos. 5 to 9.
6. The learned Counsel for the petitioners has argued that though the two notices were given to the Tahsildar, by the respondent Nos. 5 to 9, in both the notices, same grounds were shown, as to why they wanted to move the no confidence motion against the Sarpanch and Upasarpanch. The learned Counsel for the petitioners has argued that the duties of Sarpanch and Upasarpanch are different. The Upasarpanch has no power to act in any way when the Sarpanch is there to carry out his duties and, in such circumstances, same grounds cannot be there for no confidence motion against the Sarpanch and Upasarpanch.
7. However, we fail to understand, how this can be a ground to challenge the no confidence motion. If the grievance of the members against the Sarpanch and Upasarpanch is on the same points, then in ordinary course, there would be same grounds in the notice for no confidence motion. We do not find substance in this contention of the petitioners, that as the same grounds are mentioned in the notices for no confidence against the Sarpanch and Upasarpanch, the notices are not legal and valid.
8. The other ground raised by the petitioners is that even when they had asked for adjournment of the meeting, the Tahsildar did not adjourn the meeting. The petitioners being Sarpanch and Upasarpanch, they had every right to take part in discussion with respect to no confidence motion and to vote when the motion was put for voting. They were deprived of this right and, therefore, the whole proceeding is illegal.
9. The learned Counsel for the petitioners has argued that section 35 of the Bombay Village Panchayats Act, 1958, does not make any provision that if the special meeting is called by the Tahsildar as per the provisions of subsection (2) of section 35, it cannot be adjourned. He has further pointed out that if there had been any such intention, that the meeting once called should not be adjourned, then there would be specific provision to that effect. He has further pointed out that under section 49(3) of the Maharashtra Zilla Parishads and Panchayat Samities Act, 1961, there is specific provision that such meeting cannot be adjourned. Because of this provision under the Maharashtra Zilla Parishads and Panchayat Samities Act, 1961, the meeting called for consideration of no confidence motion against any of the office bearers of the Zilla Parishad, the meeting has to be held and concluded as per the provisions of the law. But when there is no specific provision under the Bombay Village Panchayats Act, 1958, the Tahsildar has every power to adjourn the meeting and he can adjourn the meeting. The reasons given for adjourning the meetings were quite genuine. But the Tahsildar completely ignored the request of the petitioners to adjourn the meeting and this has caused injustice to the petitioners.
10. The learned Counsel for the respondents has argued that merely because there is no provision under the Bombay Village Panchayats Act, 1958, similar to the provisions under the Maharashtra Zilla Parishads and Panchayat Samities Act, 1961, it cannot be said that the Tahsildar had authority to adjourn the meeting. If the meeting is called validly, then meeting must be held to transact the business for which it is called. They have also argued that if the Tahsildar adjourns the meeting only because a member or two not being able to attend the meeting, then somebody would ask for adjournment of the meeting every time the meeting is conveyed and motion for no confidence would never be considered. To stop this mischief, the only way is to hold the meeting as conveyed by the Tahsildar.
11. The learned Counsel for the respondents has also argued that once the notice was given to the Sarpanch and Upasarpanch regarding the meting, together with the grounds on which the no confidence motion was being moved, the opportunity was given to them to make out their case before the meeting. They failed to avail that opportunity. That does not mean that they were not allowed to exercise their right. It is, therefore, argued by the learned Counsel for the respondents, that the meeting was legally held and the no confidence motions are passed by majority. That decision of the majority now cannot be disturbed in the writ petition.
12. No doubt, there is no specific provision under the Bombay Village Panchayats 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 Upasarpanch be served with the notice regarding no confidence motion and once it is brought to their 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. We also find substance in the argument of the learned Counsel for the respondents, that if the Tahsildar is to adjourn the meeting, because the Sarpanch or Upasarpanch is not able to attend the meeting on a particular date, then every time such adjournments would be sought by the Sarpanch or Upasarpanch or any other member and holding of the meeting for consideration of no confidence motion would be prolonged. The very purpose of giving the no confidence motion would be lost because till the motion is carried out, the Sarpanch or Upasarpanch, as the case may be, would continue to hold the office when they are not carrying the majority with them. Therefore, even if there is no such provision, prohibiting the Tahsildar from adjourning the meeting, the circumstances do indicate that the meeting cannot be adjourned on such grounds.
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 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.
15. Sub-section (3) of section 35 of the Bombay Village Panchayats Act, 1958, provides :
"If the motion is carried by a majority of the total number of the members who are for the time being entitled to sit and vote at any meeting of the panchayat, the Sarpanch or the Upasarpanch, as the case may be, shall cease to hold office after seven days from the date on which the motion was carried unless he has resigned earlier or has disputed the validity of the motion so carried as provided in sub-section (3-B); and thereupon the office held by such Sarpanch or Upasarpanch shall be deemed to be vacant.
Provided that, no such motion of no confidence shall be brought within a period of six months from the date of election of Sarpanch or Upasarpanch."
It means, that the motion is to be carried by a simple majority of the total number of members of the Gram Panchayat. So, if at the time of meeting conveyed by the Tahsildar, members are present, and the members present and who vote in support of the motion are more than half of the total members of the Gram Panchayat, then the legal implication is that the motion of no confidence is carried out and the Sarpanch or Upasarpanch, as the case may be, has to vacate the office. In such circumstances, neither the Sarpanch nor the Upasarpanch against whom a notice for no confidence motion is given, can seek adjournment of the meeting. Because even in the absence of such Sarpanch or Upasarpanch, if the majority view is against the motion, the motion will fail and their presence or absence would not make any difference. But if the majority carries the motion, then their absence would not make any difference. The right to speak and to vote is given to such member who remains present at the time of meeting. Who avoids to attend the meeting cannot be allowed to ask for postponement of the meeting. We, therefore, hold that there was nothing wrong on the part of the Tahsildar in holding the meeting of the Gram Panchayat inspite of letter of request of the Sarpanch and Upasarpanch, that the meeting be adjourned because each of them was not able to attend the meeting.
16. The another objection raised by the learned Counsel for the petitioner is that only two minutes were given to the members to discuss the motion of no confidence. So, there was no sufficient discussion before the motion was put for voting.
17. From the circumstances, it is noticed that only those members who were in support of the motion, had attended and they were more than half of the total members of the Gram Panchayat. Obviously, there was nobody to oppose the motion or to put up the case of the petitioners before the meeting to sway the voting in favour of the petitioners. In such circumstances, no discussion was going to take place because all the members who had attended the meeting were in favour of the motion. So, there was no point in allocations more time for discussion when no discussion was going to take place. Under these circumstances, we do not find any substance in this contention also, that no sufficient time for discussion was given before putting the motion for voting.
18. Hence, we do not find any substance in the stand taken by the petitioners. The meetings of the Gram Panchayat, Mukindpur (Taluka: Newasa, District : Ahmednagar), for consideration of new (sic) no confidence motion against Sarpanch and Upasarpanch were held legally and properly. The orders passed by the Collector and the Commissioner are also legal and proper. No interference is called.
19. In the result, Writ Petition No. 4431/1999, and Writ Petition No. 4432/ 1999 are dismissed in limine.
20. Writ petitions dismissed.