Bombay High Court
Surekha S/O. Eshwar Jadhav vs Nirmala W/O. Madhavrao Jadhav on 17 July, 2013
Author: R.G. Ketkar
Bench: R.G. Ketkar
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
Writ Petition No. 353 of 2013
Surekha s/o. Eshwar Jadhav,
Age : 35 years,
Occupation : Household,
R/o. Bhatapur (PD),
Taluka : Mukhed,
District : Nanded. .. Petitioner.
versus
1. Nirmala w/o. Madhavrao Jadhav,
Age : Major,
Occupation : Agriculture &
Member of Grampanchayat,
Bhatapur (PD), Taluka : Mukhed,
District : Nanded.
2. Sundarbai w/o. Chandu Kamble,
Age : Major,
Occupation : Agriculture &
Member of Grampanchayat,
Bhatapur (PD), Taluka : Mukhed,
District : Nanded.
3. Lalita w/o. Sopan Gaikwad,
Age : Major,
Occupation : Agriculture &
Member of Grampanchayat,
Bhatapur (PD), Taluka : Mukhed,
District : Nanded.
::: Downloaded on - 27/08/2013 21:07:22 :::
(2)
4. Iraba s/o. Chandu Waghmare,
Age : Major,
Occupation : Agriculture &
Member of Grampanchayat,
Bhatapur (PD), Taluka : Mukhed,
District : Nanded.
5. Chandarbai w/o. Mhaisaji Nilewad,
Age : Major,
Occupation : Agriculture &
Member of Grampanchayat,
Bhatapur (PD), Taluka : Mukhed,
District : Nanded.
6. Padmin w/o. Sambhaji Ingule,
Age : Major,
Occupation : Agriculture &
Member of Grampanchayat,
Bhatapur (PD), Taluka : Mukhed,
District : Nanded.
7. The Tahsildar, Mukhed,
District : Nanded.
8. The Additional Collector,
Nanded, District : Nanded.
9. The Divisional Commissioner,
Aurangabad Division,
Aurangabad.
10. The Gramsevak,
Grampanchayat,
Bhatapur (PD),
Taluka : Mukhed,
District : Nanded. .. Respondents.
.......................
::: Downloaded on - 27/08/2013 21:07:22 :::
(3)
Mr. V.D. Salunke, Advocate, for the petitioner.
Mr. S.K. Sawangikar, Advocate, for respondent
nos.1 to 5.
Mr. G.G. Suryawanshi, Advocate, for respondent
nos.6 and 10.
Mr. K.M. Suryawanshi, Assistant Government Pleader,
for respondent nos.7 to 9.
........................
ig CORAM : R.G. KETKAR, J.
Date of reserving the
judgment : 27th June 2013.
Date of pronouncing the
judgment : 17th July 2013.
JUDGMENT :
1. Heard Mr. V.D. Salunke, learned Counsel for the petitioner;
Mr. S.K. Sawangikar, learned Counsel for respondent nos.1 to 5; Mr. G.G. Suryawanshi, learned Counsel for respondent nos.6 and 10, and Mr. K.M. Suryawanshi, learned AGP for respondent nos.7 to 9, at length.
2. Rule. The learned Counsel appearing for the respective respondents waive service. At the request and by consent of the parties, Rule is made returnable forthwith and the petition is taken up for final hearing.
::: Downloaded on - 27/08/2013 21:07:22 ::: (4)3. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner has challenged the judgment and order dated 28th December 2012, passed by the Additional Collector, Nanded, in Appeal No. 39/2012. By that order, the Additional Collector dismissed the dispute application preferred by the petitioner and held that the special meeting convened by the Tahsildar, Mukhed, on 18th April 2012, for considering the no confidence motion against the petitioner herein, as a Sarpanch, was validly conducted as per Section 35 of the Maharashtra Village Panchayats Act, 1958 [For short, "the Act"], read with the Bombay Village Panchayats Sarpanch and Up-Sarpanch (No Confidence Motion) Rules, 1975 [For short, "No Confidence Rules"] and accordingly confirmed the proceedings of the special meeting.
4. The relevant and material facts that are necessary for the disposal of the present petition, briefly stated, are as under :
(a) The elections of Village Panchayat, Bhatapur (PD) (Taluka :
Mukhed, District : Nanded) [For short, "Panchayat"], were held in the year 2010. The petitioner and the respondent nos.1 to 6 are the elected members of the Panchayat. The petitioner was elected as Sarpanch. Respondent nos.1 to 5 moved requisition on 12th April 2012, to the Tahsildar, Mukhed, and requested to convene a special meeting for considering the motion of no confidence against the petitioner. By notice dated 12th April 2012, the Tahsildar, Mukhed, convened a special meeting of the Panchayat on 18th April 2012 at 2.00 p.m. It is the case of the petitioner, that the notice was served by the Tahsildar, through Talathi, only on respondent nos.1 to 5. No notice of meeting was served on the ::: Downloaded on - 27/08/2013 21:07:22 ::: (5) petitioner and the 6th respondent. In the absence of notice, the petitioner could not remain present for the meeting. Though 6th respondent was not served, she came to know about convening of the meeting and accordingly remained present in the meeting. The motion of no confidence was carried against the petitioner by five versus one. The case of the petitioner is that the motion of no confidence was carried out in gross violation of the mandatory provisions of Section 35(2) of the Act.
(b) The petitioner disputed the validity of the motion carried under Sub-
Section (3B) of Section 35 of the Act, by referring the dispute to the Collector.
(c) By judgment and order dated 18th September 2012, the Additional Collector allowed the dispute and held that the special meeting convened on 18th April 2012 for considering the motion of no confidence was not validly convened as per Section 35 of the Act and No Confidence Rules.
The Additional Collector declared those proceedings illegal and rescinded the resolution passed in the special meeting of 18th April 2012.
(d) Aggrieved by this decision, respondent no.1 herein preferred appeal under Section 35 (3C) of the Act before the Divisional Commissioner, Aurangabad. By judgment and order dated 5th November 2012, the Divisional Commissioner partly allowed the appeal and quashed and set aside the order of the Additional Collector and remitted the matter for fresh inquiry to the Additional Collector, Nanded. While remitting the matter to the Additional Collector, the Divisional Commissioner directed the Additional Collector to find out whether the notice of the special ::: Downloaded on - 27/08/2013 21:07:22 ::: (6) meeting was served on the petitioner herein, or not.
(e) After the remand, by the impugned order dated 28th December 2012, the Additional Collector dismissed the dispute of the petitioner by holding that the notice of the special meeting was served on the petitioner and the proceedings of the special meeting dated 18th April 2012 were validly conducted and that the motion of no confidence was validly carried as per the No Confidence Rules. It is against this order, the petitioner has instituted the present petition under Articles 226 and 227 of the Constitution of India.
5. In support of this petition, Mr. Salunke straneously contended that after the remand of the matter by the Divisional Commissioner, the Additional Collector reopened the proceedings and called the retired Talathi, Shri H.R. Saknure, to file his say on the question "whether the notice of special meeting was served to the petitioner and the 6th respondent". Shri H.R. Saknure appeared before the Additional Collector and filed his say on 12th December 2012, setting out therein that the notices of the meeting were served on the petitioner and the 6th respondent in the office of Talathi, Rajura (Bk.) in his presence. He submitted that the Additional Collector was obliged to consider the matter afresh on the basis of material already on record. In other words, he submitted that the Additional Collector committed serious error in asking Talathi to file his say on the question as to whether the petitioner and the 6th respondent were served with the notice of special meeting. He submitted that earlier, the Talathi, who claims to have effected service on the petitioner and the 6th respondent, did not file say, as also, the proof of so called service of ::: Downloaded on - 27/08/2013 21:07:22 ::: (7) notice on the petitioner and the 6th respondent.
6. Mr. Salunke further submitted that the Additional Collector failed to appreciate that the record is tampered and/or manipulated as regards the service of notice. Whereas Exhibit "B" (Page 15 of the petition) shows that the persons named therein were served at Bhatapur (PD). In so far as the so called service report filed by the Talathi along with his say dated 12th December 2012, shows that signatures of the petitioner and the 6th respondent only were taken on that report. He submitted that the say of the Talathi dated 12th December 2012 shows that it is stated that the petitioner and the 6th respondent came to receive notices and signed the same in the office of Talathi, Rajura (Bk.).
7. Mr. Salunke further submitted that the provisions of the Bombay Village Panchayats (Meetings) Rules, 1959 [For short, "Meeting Rules"] apply even for considering the motion of no confidence. Under Rule 7 of the Meeting Rules, every notice shall, if practicable, be served personally by delivering or tendering it to the member to whom it is addressed or such person is not found, by giving or tendering it to an adult male member of his family who is residing with him. If there is no such person to whom notice can be given or tendered or where the member, or as the case may be, in his absence such adult male member, is present but refuses to accept the notice, it shall be served by affixing it, in the presence of two witnesses, on the outer door or some other conspicuous part of the house in which the member ordinarily resides. If none of the aforesaid modes of serving notice is feasible, the notice shall be affixed, in the presence of two witnesses, on some conspicuous part of the house in ::: Downloaded on - 27/08/2013 21:07:22 ::: (8) which the member is known to have last resided or carried on business or personally worked for gain.
8. Mr. Salunke submitted that the petitioner was not served with the notice of special meeting and the purported proof of notice and the say dated 12th December 2012 is merely an attempt on the part of contesting respondents to show that the petitioner was served with the notice of meeting. He submitted that by not effecting service of special meeting, the petitioner was denied right to attend the special meeting and right to speak or otherwise take part in the proceedings including the right to vote. He submitted that this being the fundamental flaw, the proceedings of the special meeting are vitiated and it would invalidate the resolution of no confidence motion. He, therefore, submitted that the impugned order is liable to be quashed and set aside.
9. In support of his submissions, Mr. Salunke has relied upon following decisions :
(i) Bhika Narayan Gangurde & others Vs. State of Maharashtra & others [2002(1) Bom.C.R. 186].
(ii) Indubai Vedu Khairnar Vs. State of Maharashtra & others [2003(2) Bom.C.R. 239].
(iii) Ashabai Ashok Shinde Vs. Additional Commissioner, Amravati Division & others [2009(2) Bom.C.R. 880].::: Downloaded on - 27/08/2013 21:07:22 ::: (9)
(iv) Shivkant Haribhau Bangar Vs. Gramsevak & others [2010(4) Bom.C.R. 191].
And
(v) Dilipreddy s/o. Pandharireddy Bhusgire Vs. The State of Maharashtra & others [Writ Petition No. 7847 of 2012, decided on 5th February 2013, by Hon'ble Shri Justice S.S. Shinde].
10. On the other hand, Mr. Sawangikar supported the impugned order. He invited my attention to affidavit in reply filed by respondent no. 4, Eraba s/o. Chandu Waghmare, for himself as well as on behalf of respondent nos.1 to 3 and 5. He submitted that the notice was validly served on the petitioner and the 6th respondent. There are 7 members in the Panchayat. Out of 7 members, excepting the petitioner, all other 6 members, including respondent no.6 herein, were present. The motion was put to vote. It was carried by five versus one. He submitted that the petitioner has lost confidence and, therefore, no interference is called for in exercise of powers under Articles 226 and 227 of the Constitution of India. He further submitted that the Talathi of village Rajura (Bk.) is place of Sajja and under this Sajja, there are five villages, namely, (1) Rajura (Bk.), Rajura (Kd.), Bhatapur (PD), Lingapur and Thana. It was nothing unusual if the petitioner collected the notice at Talathi's office at Rajura (Bk.). He submitted that the petitioner is not residing at village Bhatapur (PD) and despite attempts to effect service upon her were made, the service could not be effected and consequently, she deliberately received copy of the notice herself, as also, on behalf of respondent no.6, by ::: Downloaded on - 27/08/2013 21:07:22 ::: (10) making illegal signature of respondent no.6. In support of his submissions, he has relied upon decision of this court in the case of Appa Munjaji Pawar Vs. Divisional Commissioner & others [2009(5) Bom.C.R. 691].
11. Mr. K.M. Suryawanshi, learned APP appearing for respondent nos.7 to 9, produced before me, the original record for my perusal.
12. I have considered the rival submissions made by the learned Counsel appearing for the parties. I have perused the material on record, as also, original record. The controversy in the present petition is, as to whether the petitioner was given notice of special meeting convened on 18th April 2012, or not, and whether the proceedings of the special meeting dated 18th April 2012 are vitiated on account of not serving notice on the petitioner.
13. It is, therefore, necessary to find out whether the notice of special meeting was served on the petitioner, or not. It is necessary to find out, whether the Meeting Rules are applicable to the present case. The said issue is no longer res integra. In the case of Viswas Pandurang Mokal Vs. Group Gram Panchayat Shihu & others [2011(3) Bom.C.R. 495], the Full Bench of this court has considered the provisions of the Act, No Confidence Rules and the Meeting Rules. In paragraph 17 of that report, it was observed as under :
" Thus, Rule 17 provides that the person who has submitted notice of the motion shall move the motion in the meeting. Rule 20 deals with how amendments to the motion can be proposed. Rule ::: Downloaded on - 27/08/2013 21:07:22 ::: (11) 21 deals with how a person who wants to speak on a motion has to be address. What should be the duration of the speech and what is the decoram to be followed in speaking at the meeting. Thus, in these Rules provisions in detail have been made for the conduct of the meeting both ordinary and special of the village panchayat. Perusal of the No Confidence Motion Rules shows that they do not contain any provision in relation to the conduct of the meeting. Provisions for conduct of the meeting of the village panchayat are to be found in the Meeting Rules. The manner of submitting a requisition for convening a special meeting of the village panchayat to consider motion of no confidence against the Sarpanch or Up-Sarpanch is to be found in sub-sections (1) and (2) of section 35 and the No Confidence Motion Rules. But neither in section 35 nor in the No Confidence Motion Rules we find provisions made as how many days notice should be given to the members of the Special meeting to be convened under section 35.
Therefore, in our opinion, for that purpose one will have to follow the provisions of the Meeting Rules because they lay down as to how many days notice of special meeting is to be given to the members.
Section 35 provides that the Sarpanch or Up-
Sarpanch against whom the motion is to be moved is entitled to attend and participate in the meeting, and he is entitled to speak at the meeting. But there is no provision to be found made in section 35 or in the No Confidence Motion Rules as to the manner in which the Sarpanch or Up-Sarpanch can exercise his right to participate and speak at the meeting.
Provisions for that purpose are to be found in the Meeting Rules. Neither section 35 nor No Confidence Motion Rules lay down as to what is to be done if the requisite quorum is not present at such meeting. But the Meeting Rules contain provisions in that regard. Neither section 35 nor No Confidence Motion Rules makes provision dealing ::: Downloaded on - 27/08/2013 21:07:22 ::: (12) with the situation when the members present in the meeting disregard the authority of the presiding officer. Those provisions are to be found in the Meeting Rules. In our opinion, therefore, there is no reason why the provisions of the Meeting Rules to the extent that no contrary provision is made either in the Act itself or in the No Confidence Motion Rules should not apply to a meeting called under section 35. In our opinion, if the provisions of the Meeting Rules are held to be applicable to a meeting called under section 35, it will facilitate holding of meeting under section 35 effectively. Therefore, in our opinion, it can be safely said that the provisions of the Meeting Rules generally apply to a special meeting convened under section 35. However, such provisions of the Meeting Rules which are found to be contrary to the provisions contained either in the Act in relation to the holding of the special meeting for consideration of motion of no confidence against Sarpanch or Up-Sarpanch or in the No Confidence Motion Rules would not apply to a meeting called under section 35. Now taking up the question whether specifically provisions of Rule 17 of the Meeting Rules apply to a meeting called under section 35 is concerned, in our opinion, the provisions of section 17 will apply to a meeting called under section 35. "
14. Rule 7 of the Meeting Rules reads as under :-
" Every notice under these rules shall, if practicable, be served personally by delivering or tendering it to the member to whom it is addressed or such person is not found, by giving or tendering it to an adult male member of his family who is residing with him. If there is no such person to whom notice can be given or tendered or where the member, or as the case may be, in his absence such ::: Downloaded on - 27/08/2013 21:07:22 ::: (13) adult male member, is present but refuses to accept the notice, it shall be served by affixing it, in the presence of two witnesses, on the outer door or some other conspicuous part of the house in which the member ordinarily resides. If none of the aforesaid modes of serving notice is feasible, the notice shall be affixed, in the presence of two witnesses, on some conspicuous part of the house in which the member is known to have last resided or carried on business or personally worked for gain. "
15. In the light of Rule 7 extracted herein above, if say of Talathi dated 12th December 2012 is perused, it would be evident that the Talathi has not complied the requirements of Rule 7 of the Meeting Rules. The say dated 12th December 2012 shows that the petitioner and the 6th respondent personally came to the office of Talathi, Rajuri (Bk.) and there he personally served notice on them. The say of the Talathi cannot be accepted for more than one reason. In the first place, the said material was not on record before the Additional Collector at the time of passing earlier order. After the order of remand dated 5th November 2012, it appears that by letter dated 1st December 2012, from the office of Tahsildar, Talathi was called upon to file his say. Accordingly, Talathi filed his say on 12th December 2012, enclosing therewith the purported service report on the petitioner and the 6th respondent. Secondly, the service report, however, does not indicate as to when the service was effected on the petitioner and the 6th respondent. If the service was already effected before the special meeting of 18th April 2012, upon the petitioner and the 6th respondent, there is no explanation as to why this report was not produced before Additional Collector while deciding the dispute on 18th September 2012. Thirdly, there is absolutely no material on record to show compliance of ::: Downloaded on - 27/08/2013 21:07:22 ::: (14) Rule 7 of the Meeting Rules. In my opinion, the Additional Collector committed serious error in going beyond the record. The impugned order, therefore, suffers from serious infirmity.
16. As noted earlier, on 18th September 2012, initially the Additional Collector held that the service of notice of special meeting was not served on the petitioner. By the impugned order, the Additional Collector came to the conclusion that the notice of the special meeting was served on the petitioner, solely on the basis of the say dated 12th December 2012 filed by the Talathi, enclosing therewith the service report.
In view thereof, I find substance in the submission of Mr. Salunke, that the impugned order of the Additional Collector is vitiated for taking into account the extraneous and irrelevant material. If the say of the Talathi dated 12th December 2012 is excluded from consideration, the inevitable conclusion is that the petitioner was not given notice of special meeting.
17. Mr. Sawangikar, relying upon decision of learned Single Judge of this court, in the case of Appa Munjaji Pawar (supra), submitted that the motion was carried out by majority. He submitted that even assuming for the sake argument, the petitioner was not given notice of special meeting, that was merely a technical flaw in the proceedings of the meeting. It would, however, not vitiate the proceedings of the special meeting. The resolution of no confidence was carried by the requisite majority of more than 2/3rd members. He relied upon the decision in the case of Appa Munjaji Pawar (supra).
18. In the case of Appa Munjaji Pawar (supra), the authorities have ::: Downloaded on - 27/08/2013 21:07:22 ::: (15) concurrently found that the notice was served by the Tahsildar. No allegations of bias were made that the notice was not served upon the petitioner therein by the Tahsildar with ulterior motive. The learned Single Judge considered the judgment of Division Bench of this court, in the case of Smt. Annapurnabai Ajabrao Vs. Annapurnabai Anandrao [1967 Mh.L.J. NOC 36], as also, judgment of the Apex Court, in the case of K. Narasimhiah Vs. H.C. Singri Gowda [AIR 1966 SC 330].
19. In the case of K. Narasimhiah (supra), the question that was posed before the Apex Court was, whether the requirement of three clear days' notice for holding special meeting, as embodied in Section 27(3) of the Mysore Town Municipalities Act, 1951, was a mandatory provision, or not. The facts in that case were that the appellant before the Apex Court was elected as President of Holenarsipur Municipality on 11th September 1962. At a special general meeting of the Municipal Council held on 14th October 1963, a resolution of no confidence was passed against him. The appellant challenged that resolution by filing Writ Petition before High Court of Mysore under Article 226 of the Constitution, for quashing the proceedings of the meeting which culminated in the resolution of no confidence against him. The said Municipality had 20 Councillors. 13 out of them had sent requisition to the President to convene a special general meeting for discussing a resolution expressing no confidence against the President. The request was handed over to the appellant, he being the President. He did not take any steps for convening the meeting. The Vice- President acted in the matter and issued notice dated 10th October 1963, proposing to hold a general body meeting on 14th October 1963, at 10.00 a.m. in the office premises. The notice was personally served on 10th ::: Downloaded on - 27/08/2013 21:07:22 ::: (16) October 1963, to 15 Councillors. On the appellant and two others, the notice was served on 13th October 1963. On one of the Councillors, it was served on 11th October 1963, and on the other Councillor, it was served on 12th October 1963. The meeting was held on 14th October 1963, when 19 of 20 Councillors, including the appellant, were present. One of the questions that fell for consideration was, whether the notice of three clear days was mandatory and failure to give such notice would vitiate the proceedings of the meeting. The Apex Court in para 12 of the report observed that the use of the word "shall" is not conclusive on the question and decision on this question depends on the ascertainment of the legislature's intention. Was it the the legislature's intention in making the provision that the failure to comply with it shall have the consequence of making what is done invalid in law ? To ascertain the intention, the Court has to examine carefully the object of the statute, the consequence that may follow from insisting on a strict observance of the particular provision above all the general scheme of the other provisions of which it forms a part. The Apex Court also considered Section 36 of that Act and ultimately, in paragraph 20 of the report, observed that the proceedings of the meeting were not prejudicially affected by the "irregularity in the service of notice" and, therefore, failure to give three clear days' notice to some of the Councillors did not affect the validity of the meeting or the resolution of no confidence passed there against the appellant. In my opinion, the judgment of the Apex Court, in the case of K. Narasimhiah (supra), is not applicable to the facts of the present case.
20. I have already held that the notice of the special meeting was not served on the petitioner. The question that now arises is, whether the ::: Downloaded on - 27/08/2013 21:07:22 ::: (17) proceedings of the special meeting are vitiated on account of not effecting service of notice on the petitioner. In order to answer this question, it is necessary to consider the judgment of Division Bench of this court, in the case of Ashok Krishnakant Mehta Vs. State of Maharashtra & others [2000(4) Bom.C.R. 724]. In that case, the petitioner sought to impugn decision of the Collector, as also, decision rendered in appeal by the Division Commissioner, rejecting the challenge preferred by the petitioner therein to a resolution of no confidence passed in the Village Panchayat of Pali, District Raigad. The grievance of the petitioner was, during the course of the meeting in the Village Panchayat, the persons who wished to speak on the resolution of no confidence were prevented from doing so by the Presiding Officer on the ground that the Rules only provide that an opportunity be given to the person against whom the no confidence motion was moved. The issue involved was, whether the exclusion of the members of the Village Panchayat from participation in the debate on a motion of no confidence would be destructive of the fundamental principles underlying democratic functioning so as to render the consequent resolution of no confidence motion invalid. The Division Bench considered Section 35 of the Act. Section 35(2) of the Act reads as under :-
" Within seven days from the date of receipt by him of the notice under sub-section (1), the Tahasildar, shall convene a special meeting of the panchayat at for considering the motion of no confidence at the office of the panchayat a time to be appointed by him and he shall preside over such meeting. At such special meeting, the Sarpanch or the Upa-Sarpanch against whom the motion of no confidence is moved shall have a right to speak or ::: Downloaded on - 27/08/2013 21:07:22 ::: (18) otherwise to take part in the proceedings at the meeting (including the right to vote). "
(Emphasis supplied).
After quoting Section 35 of the Act, the Division Bench observed as under :
" Section 35 expressly recognises that the Sarpanch against whom a resolution of no confidence is to be passed would be entitled to address the meeting. This requirement is embodied in the law as compliance with a basic principle of natural justice. A resolution of no confidence operates to remove a person from his position as Sarpanch or Upa-Sarpanch by expressing a lack of confidence in his ability to govern the affairs of the Village Panchayat. Bearing in mind the consequences of as well as the underlying basis for a resolution of no confidence, the law has incorporated a requirement of giving the Sarpanch or the Upa-Sarpanch, as the case may be, an opportunity of being heard before the members vote upon the resolution of no confidence. ................ ................... .................. An expression of view point at the meeting of the Village Panchayat is a valuable right available to the members of the Village Panchayat. The elected bodies at the local level fulfill basic principles of democratic functioning which are to be found as well in larger bodies at other levels of the polity. The right of each member of the house to address the house is a valuable safe-guard of democratic functioning. ................. ................ ................ The right of a particular member who is sought to be proceeded against on account of a specific misconduct or for having incurred a particular disqualification cannot be equated or confused with the general right of all the members to discuss and ::: Downloaded on - 27/08/2013 21:07:22 ::: (19) debate. All members have a vital interest in expressing their view point subject to due regulation in the interest of preserving order in the course of proceedings. The authorities below have summarily rejected the submission made on behalf of the petitioner on the ground that by an overwhelming majority of 9 in a house of 17 the resolution came to be passed. The issue, in our view, is something far more fundamental and that goes to the root or the essence of democratic functioning. The weight of numbers is not an answer to a fundamental defect such as this and the Court ought not to countenance a suppression of the right to speak by a supposed justification on the basis of the number who cast their lot in support of a resolution. The exclusion of members from addressing the Village Panchayat was a fundamental flaw in the proceedings which would invalidate the resolution of no confidence. "
21. Mr. Sawangikar, however, submitted that the resolution is carried by requisite majority of more than 2/3rd members and, therefore, the petitioner has lost the confidence of majority and consequently, has no right to continue in the post of Sarpanch by raising some hypertechnical ground. The said submission cannot be accepted for more than one reason. In the first place, under Section 35(1) of the Act, a motion of no confidence may be moved by not less than one third of the total number of the members who are for the time being entitled to sit and vote at any meeting of the panchayat against the Sarpanch or the Upa-Sarpanch after giving such notice thereof to the Tahsildar as may be prescribed. Under Sub-Section (3), the motion has to be carried out by a majority of not less than two-third of the total number of the members who are for the time being entitled to sit and vote at any meeting of the panchayat. The object for giving notice to the Sarpanch or Upa-Sarpanch is that he has a right to ::: Downloaded on - 27/08/2013 21:07:22 ::: (20) speak or otherwise to take part in the proceedings at the meeting, including right to vote. The Sarpanch or Upa-Sarpanch, as the case may be, while exercising such right, can impress upon the members who had moved a motion of no confidence (1/3rd members), as also, to the other members who have not moved that requisition. It is conceivable that the members who have moved requisition under Sub-Section 1 of Section 35 of the Act, and other members may change their opinion, if such right is exercised by the Sarpanch or Upa-Sarpanch, as the case may be. The Division Bench of this Court, in the case of Shri Ashok Krishnakant Mehta (supra), has observed that the right of each member of the house to speak is far more fundamental and that goes to the root of the essence of democratic functioning. The weight of numbers is not an answer to a fundamental defect and the Court ought not to countenance a suppression of the right to speak by a supposed justification on the basis of the number who cast their lot in support of a resolution. The exclusion of members from addressing the Village Panchayat was a fundamental flaw in the proceedings which would invalidate the resolution of no confidence.
22. In view of the above, the petition succeeds and the same is allowed. The impugned order dated 28th December 2012 is quashed and set aside. Rule is made absolute in terms of prayer clauses "B" and "C". In the circumstances of the case, there shall be no order as to costs.
( R.G. KETKAR ) JUDGE .........................
bgp/wp353 ::: Downloaded on - 27/08/2013 21:07:22 :::