Bombay High Court
Shri. Raosaheb Mallapa Magdum And Ors vs Vadaana Shivajirao Mane And Ors on 14 September, 2017
Author: M. S. Sonak
Bench: M. S. Sonak
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 7792 OF 2017
Shri. Raosaheb M. Magdum and ors. .. Petitioners
vs.
Vadana S. Mane and ors. .. Respondents
Mr. S.S. Patwardhan for the Petitioners.
Mr. S.R. Ganbawale i/b A.M. Adagule for Respondent No.1.
Mrs. V.S. Nimbalkar, AGP for the Respondent - State.
CORAM : M. S. SONAK, J.
Date of Reserving the Judgment : 06 September 2017.
Date of Pronouncing the Judgment : 14 September 2017.
JUDGMENT :-
1] The No Confidence Motion passed against respondent No.1 (Sarpanch) has been set aside by the Collector of Kolhapur by impugned order dated 1st July 2017.
2] The only reason indicated by the Collector is the Tahsildar's failure to convene special meeting for consideration of motion of No Confidence within 7 days from the date of receipt of requisition from the Members of Panchayat. The Collector has held this amounts to breach of Section 35(2) of the Maharashtra Village Panchayats Act, 1958 (said Act) and Rule 2 (3) of the Bombay Village Panchayats Sarpanch and Upa-Sarpanch (No Confidence Motion) Rules, 1975 (said Rules).
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3] There is no substantial disputes on facts.
A] The requisition in the prescribed format and by the
prescribed number of Members was served on Tahsildar's office on 12th May 2017;
B] Tahsildar was on leave and resumed duties on 23 rd May 2017 . On this day itself, the Tahsildar issued notices to the Members of the Panchayat requiring them to attend the special meeting to consider motion of Notice of Motion on 30 th May 2017;
C] On 30th May 2017, the motion of No Confidence was taken up for consideration. 13 Members voted in favour of the motion and 3 against. The motion expressing want of confidence for respondent No.1 was accordingly, passed on 30th May 2017;
D] By the impugned order dated 1st July 2017, the Collector has set aside the motion holding that there was breach of Section 35 (2) of the said Act and Rule 2(3) of the said Rules, inasmuch as the meeting to consider the motion of No Confidence was convened by the Tahsildar beyond the period of 7 days from the date of receipt of notice/requisition. 2/14 ::: Uploaded on - 14/09/2017 ::: Downloaded on - 15/09/2017 01:26:34 :::
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4] Perusal of the provisions under Section 35 of the said Act and
Rule 2 of the said Rules, do indicate the requirement on the part of Tahsildar to convene a meeting to consider motion of No Confidence within 7 days from the date of receipt of requisition. However, the question is whether this time limit of 7 days is 'mandatory' as held by the Collector in the impugned order or whether the same is "directory" as contended by the petitioners in the present petition. 5] Rule 7 of the Chapter - I of the Bombay High Court Appellate Side Rules, 1960 provides that if it shall appear to any Judge, either on the application of a party or otherwise, that an appeal or matter can be more advantageously heard by a Bench of two or more Judges, he may report to that effect to the Hon'ble The Chief Justice who shall make such order thereon as he shall think fit. 6] In the present case, for brief reasons indicated hereafter, I am of opinion that this matter can be advantageously heard by a Bench of more than two Judges, particularly, since conflicting opinions on the issue hold the field. The issue raised is recurrent and in my opinion, it would be in the interests of justice, if, there is an authoritative pronouncement of the Full Bench in the matter. 3/14 ::: Uploaded on - 14/09/2017 ::: Downloaded on - 15/09/2017 01:26:34 :::
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7] As regards conflicting opinions on the issue, reference is
required to be made to the decision of the learned Single Judge of this Court ( R.M.S. Khandeparkar, J.) in Mandabai Balnath Rohom & Ors. vs. Ashok Fakira Chandar & Ors.1, in which, the view taken is that the Tahsildar, is not only to issue the notice convening the meeting to deal with motion of no confidence within seven days, but has also to convene the meeting itself within seven days in terms of Section 35(2) of the said Act. In Ganesh Raghunath Samel vs. State of Maharashtra & Ors.2, the Division Bench of this Court (C.K. Thakkar, C. J. & Smt. Ranjana Desai, J. as they then were), the motion of no confidence passed in the meeting which was convened after the stipulated period of seven days, came to be set aside. There is however, no discussion on the mandatory or directory nature of the stipulation as to time limit. These decisions, suggest that the time limit prescribed in the statutory provisions for the Tahsildar to convene the meeting to consider the motion of no confidence is mandatory and not directory.
8] On the other hand, in Durgadas Ukhaji More & Ors. vs. Additional Commissioner, Nashik Division, Nashik & Ors.3, learned Single Judge of this Court (D.G. Karnik, J.) has held that the 1 2002 (1) Mh. L. J. 916 2 2002 (4) Bom. C. R. 425 3 2003 (1) Mh. L. J. 420 4/14 ::: Uploaded on - 14/09/2017 ::: Downloaded on - 15/09/2017 01:26:34 ::: Dinesh Sherla/SKC JUDGMENT-WP-7792-17sxw persons who wish to move resolution are required to give notice to the Tahsildar in terms of section 35(1) of the said Act. Once they do so, their responsibility ends and they cannot be faulted for the failure on the part of the Tahsildar to act within the stipulated period. The learned Single Judge has reasoned that where the duty to do a certain thing is cast on a Government officer and the citizen has no control over the actions of such Government officer, the citizen cannot be prejudiced for the fault of the Government officer to perform his duty. The provision of law requiring the Government officer to perform the particular duty which affects the rights of a citizen would have to be held to be directory qua the citizen who has no control over the actions of such Government officers. The learned Single Judge has relied upon the Ruling of the Division Bench in the case of Punjabrao & Ors. vs. V. M. Molkar & Ors.4 9] To the similar effect is the ruling of the Full Bench (C.S. Dharmadhikari, Acting C.J., V. A. Mohta and G. G. Loney, JJ.) in Ashok Maniklal Harkut vs. Collector, Amravati & Ors.5, where, in the context of the provisions in Section 55 of the Maharashtra Municipalities Act 1965, the following observations came to be made:
4 1974 Mh. L. J. 428 5 1988 Mh. L.J. 378 5/14 ::: Uploaded on - 14/09/2017 ::: Downloaded on - 15/09/2017 01:26:34 ::: Dinesh Sherla/SKC JUDGMENT-WP-7792-17sxw
"15. .... .... .... .... .... Hence it is contended by Shri Jaiswal that a meeting held beyond the period of 10 days will be wholly illegal and the resolution passed, there at would also be void. We find some difficulty in accepting this contention. Where a statute imposes a public duty and lays down the manner in which and the time within which duty shall be performed, injustice and inconvenience resulting from the strict construction of the statutory prescription is irrelevant for construing the said provision. It is no doubt true that the object of the Legislature in specifying time limit within which the meeting has to be convened, is that the motion of no confidence should be treated as a matter of urgency and should be disposed of within a short time after receipt of the requisition. If it is held that what is required is only an issuance of notice calling a meeting within 10 days, then in a given case, by issuing a notice summoning a meeting within 10 days, but actually fixing a date of meeting much later, a person in whom majority of two-thirds of total number of Councillors have lost confidence, may continue in office. However, it cannot be forgotten that if it is held that the said time limit is mandatory and the meeting held thereafter is ab initio void it will result in unforeseen hardship and inconvenience. Requisitionists have no control over the Collector. It has not been laid down in the Act as to what will happen if the Collector fails to carry on the duty imposed upon him by Sub-section (3) of Section 55. Will it mean that by mere inaction or negligence on the part of the Collector the requisition will lapse and that too for no fault of Requisitionists? Therefore the said provisions will have to be construed as to further its object and not to defeat it. ".
[Emphasis supplied] 10] The aforesaid decisions suggest that the provisions as to time limit within which the Tahsildar is required to act have been construed as directory on the reasoning that the members of the Panchayat or the Councillors of a Municipal Council, having served the requisition in the prescribed manner upon the prescribed statutory authority, thereafter, the members or the Councillors 6/14 ::: Uploaded on - 14/09/2017 ::: Downloaded on - 15/09/2017 01:26:34 ::: Dinesh Sherla/SKC JUDGMENT-WP-7792-17sxw cannot be prejudiced on account of the failure of the statutory authority to act within the prescribed period. 11] In fact, the Hon'ble Supreme Court, in the case of Dattatraya Moreshwar vs. State of Bombay6 has held that the procedural rule, should ordinarily not be construed as mandatory. Further, if a provision relates to performance of any public duty and the invalidation of any act done in disregard of that provision causes serious prejudice to those for whose benefit it is enacted and at the same time, should have no control over the performance of the duty, such a provision should normally be treated as directory. In Ganesh Samel (supra) this principle of law does not seem to have been adverted to. Reliance is however placed upon this principle in Durgadas More (supra) and Ashok Harkut (supra). 12] Both Sections 35(2) of the said Act and Rule 2(3) of the said Rules, no doubt use the expression 'shall', when it comes to the requirement of the Tahsildar convening the meeting to consider the motion for no confidence within seven days from the date of receipt of the requisition. However, it is well settled that the use of expressions like 'shall' or 'may' are not conclusive and regard must always be had to the true intent of the legislation. (See State of UP 6 AIR 1952 S.C. 181 7/14 ::: Uploaded on - 14/09/2017 ::: Downloaded on - 15/09/2017 01:26:34 ::: Dinesh Sherla/SKC JUDGMENT-WP-7792-17sxw vs. B. R. Upadhya7). Further, where construction of a provision as mandatory would result in absurdity or some serious inconvenience which could never been the intention of the legislation, then, the provision is required to be construed as directory. The provision couched in a negative form, generally suggests a mandatory nature. Affirmative words, simplicitor, generally suggests a directory nature (See : M. Pentiah vs. Muddla8, and Dharamdeo Rai vs. Ramnagina Rai9). The circumstance that the statute itself provides consequences of breach of non compliance, normally suggest a mandatory nature (See : Maqbool Ahmad vs. Onkar Pratap Narain Singh10 and Manilal Shah vs. Sardar Mahmad11 ). 13] In this case, the statute has not provided for the consequences, in case of failure on the part of the Tahsildar to convene the meeting to consider the motion of no confidence within seven days from the date of receipt of the requisition. The expression is not couched in a negative form but rather, the expression is couched in an affirmative form. These factors, at least prima facie, point out to the directory nature of the provision.
7 AIR 1961 S.C. 751 8 AI|R 1961 SC 1107 9 1972(1) SCC 460 10 AIR 1935 P.C. 85 11 AIR 1954 S.C. 349 8/14 ::: Uploaded on - 14/09/2017 ::: Downloaded on - 15/09/2017 01:26:34 ::: Dinesh Sherla/SKC JUDGMENT-WP-7792-17sxw 14] The possible reason for use of the expression 'shall' in section 35(2) of the said Act and Rule 2(3) of the said Rules, is to emphasize upon the Tahsildar, the need to convene the meeting to consider the motion of no confidence expeditiously because, it is not in the interest of the democratic functioning of the local body to permit a Sarpanch or a Upa-Sarpanch who may lost the confidence of the majority to continue in office. In this sense, the provisions which require the Tahsildar to convene the meeting to consider the motion of no confidence within seven days from the date of receipt of requisition, are provisions made for the benefit of the requisitionists. 15] Therefore, even if we proceed on the basis that the time limit of seven days prescribed in the provisions is to be construed as mandatory, then, yet another principle may be attracted to a situation of this nature. The principle is that even though a provision of law may be mandatory in its operation, if such provision is one which deals with individual rights of the person concerned and is for the benefit of the person concerned, then, such person, can always waive such benefit. This means that the resultant action, non complaint with the mandatory provision is merely voidable at the instance of the persons for whose benefit the provision came to be enacted. (See : Rajendra Singh vs. State of M. P. & Ors.12, General 12 (1996) 5 SCC 460 9/14 ::: Uploaded on - 14/09/2017 ::: Downloaded on - 15/09/2017 01:26:34 ::: Dinesh Sherla/SKC JUDGMENT-WP-7792-17sxw Manager, Sri Siddeshwara Cooperative Bank Ltd. & Anr. vs. Ikbal & Ors.13, Commissioner of Customs, Mumbai vs. Virgo Steels, Bombay & Anr.14, Vasu P. Shetty vs. Hotel Vandana Palace & Ors.15, Badri Kedar Paper Pvt. Ltd. vs. Uttar Pradesh Electricity Regulatory Commission & Ors.16, Martin & Harris Ltd. vs. VIth Additional Distt. Judge & Ors.17 , State Bank of Patiala & Ors. vs. S. K. Sharma18).
16] The objectives for requiring the Tahsildar to convene a meeting to consider the motion of no confidence against a Sarpanch or Upa-Sarpanch within seven days from the date of receipt of requisition, at least, prima facie, appear to be two-fold :-
(a) The non continuance in office of a Sarpanch or a Upa-
Sarpanch, who may have lost the confidence of the majority of the members of the local body;
(b) To prevent 'horse trading' or engineering of defections, which is by no means uncommon in the interregnum between service of notice / requisition upon the Tahsildar and the actual date of the meeting to consider the motion of no confidence. 13 (2013) 10 SCC 83 14 (2002) 4 SCC 316 15 (2014) 5 SCC 660 16 (2009) 3 SCC 754 17 (1998) 1 SCC 732 18 (1996) 3 SCC 364 10/14 ::: Uploaded on - 14/09/2017 ::: Downloaded on - 15/09/2017 01:26:34 ::: Dinesh Sherla/SKC JUDGMENT-WP-7792-17sxw 17] Thus construed, at least prima facie it appears that the provision that the Tahsildar convenes the meeting to consider the motion of no confidence within seven days from the date of receipt of the requisition, is a provision intended for the benefit of the requisitionists, who, will naturally have an interest in ensuring the expeditious consideration of the motion of no confidence. The requisitionists, in the circumstances, can as well waive benefit of such provision and accept the result at the meeting, which may have been convened beyond the prescribed period of seven days from the date of receipt of the requisition by the Tahsildar. This aspect has also not been adverted to in Mandabai Rohom (supra) and Ganesh Samel (supra).
18] In Vipulbhai M. Chaudhary vs. Gujarat Cooperative Milk Marketing Federation Limited & Ors.19, the Hon'ble Supreme Court has held in a democratic institution, confidence is the foundation on which the superstructure of democracy is built. The bedrock of democratic accountability rests on the confidence of the electorate. If the representative body does not have confidence in the office- bearers whom they selected, democracy demands such officer to be removed in a democratic manner. Democratic accountability, mutual trust, fairness, impartiality, unity or agreement of feeling among the 19 (2015) 8 SCC 1 11/14 ::: Uploaded on - 14/09/2017 ::: Downloaded on - 15/09/2017 01:26:34 ::: Dinesh Sherla/SKC JUDGMENT-WP-7792-17sxw delegates, cooperativeness, etc. are some of the cardinal dimensions of the co-operative principles. A body built on such principles cannot be led by a captain in whom the co-sailors have no confidence. If a person has been selected to an office through democratic process, and when that person loses the confidence of the representatives who selected him, those representatives should necessarily have a democratic right to remove such an office-bearer in whom they do not have confidence, in case those institutions are viewed under the Constitution / statutes as democratic institutions. Where the Constitution had conceived a particular structure of certain institutions, the legislative bodies are bound to mould the statutes accordingly. Despite the constitutional mandate, if the legislative body concerned, does not carry out the required structural changes in the statutes, then, it is the duty of the court to provide the statute with the meaning as per the Constitution. As a general rule of interpretation, no doubt, nothing is to be added to or taken from a statute. However, when there are adequate grounds to justify an inference it is a bounden duty of the courts to do so. 19] The decisions in Mandabai Rohom (supra) and Ganesh Samel (supra), did not have the benefit of the decision of the Hon'ble Supreme Court in the case of Vipulbhai Chaudhary (supra) and the 12/14 ::: Uploaded on - 14/09/2017 ::: Downloaded on - 15/09/2017 01:26:34 ::: Dinesh Sherla/SKC JUDGMENT-WP-7792-17sxw principles of interpretation set out therein. The statutory provisions in Section 35 of the said Act and Rule 2 of the said Rules are also required to be interpreted in the light of the principles for democratic functioning of democratic institutions as set out in Vipulbhai Chaudhary (supra). If, the Tahsildar, who is otherwise enjoined to further the democratic functioning of a Panchayat, fails to discharge his duty and convene a meeting to consider a motion of no confidence within the prescribed period of seven days, at least prima facie, there is no reason that the requisitionists suffer serious prejudice and the Sarpanch or the Upa-Sarpanch, who may have lost the confidence of the majority, continues in office. Such continuance, as held by the Hon'ble Supreme Court in Vipulbhai Chaudhary (supra) will negate the democratic process which ought to inhere in the functioning of a local self Government body like the Panchayat.
20] For the aforesaid reasons, the Registry is directed to place this matter before the Hon'ble The Chief Justice in order to enable the Hon'ble The Chief Justice to consider whether the action in terms of Rule 7 of Chapter - I of the Bombay High Court Appellate Side Rules, 1960, is required to be taken and the issue as to "whether the time limit of 7 days from the date of receipt of requisition prescribed in 13/14 ::: Uploaded on - 14/09/2017 ::: Downloaded on - 15/09/2017 01:26:34 ::: Dinesh Sherla/SKC JUDGMENT-WP-7792-17sxw Section 35 (2) of the Maharashtra Village Panchayats Act, 1958 and Rule 2(3) of the Bombay Village Panchayats Sarpanch and Upa- Sarpanch (No Confidence Motion) Rules, 1975 to convene a meeting to consider the motion of No Confidence is mandatory or is directory" is required to be placed for consideration by the Full Bench of this Court. The Registry to do the needful.
21] The interim order granted earlier to continue until disposal of this petition.
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