Bombay High Court
Bhaskar S/O Laxmanrao Kadam vs The Additional Collector on 29 July, 2013
Author: R.G. Ketkar
Bench: R.G. Ketkar
1 WP No.5234/13A
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
WRIT PETITION NO.5234 OF 2013
Bhaskar s/o Laxmanrao Kadam,
Age 52 years, Occu.Agriculture,
R/o Nivgha (B), Tq. Hadgaon,
Dist. Nanded ..PETITIONER
VERSUS
1. The Additional Collector,
Nanded, Tq. & Dist. Nanded
2. Grampanchayat Office,
Nivgha (B), Tq. Hadgaon,
Dist. Nanded
3. Tahsildar, Hadgaon
Tahsil Office, Hadgaon,
Tq. Hadgaon, Dist. Nanded
4. Ranjanabai w/o Balaji Ambhore,
Age Major, Occu. Household,
5. Sunitabai w/o Venkatesh Ganewar,
Age Major, Occu. Household,
6. Gangabai w/o Satwa Asalkar,
Age Major, Occu. Household,
7. Sadashiv s/o Dagadu Paikwar,
Age Major, Occu.Agri.,
8. Dilip s/o Shrirang Deshmukh,
Age Major, Occu.Agri.,
9. Sahebrao s/o Narayanrao Matalkar,
Age Major, Occu.Agri.,
10. Shaikh Ismail Shaikh Musa,
Age Major, Occu.Agri.,
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2 WP No.5234/13A
11. Sahebrao s/o Tukaram Dhondage,
Age Major, Occu.Agri.,
12. Sandip s/o Uttamrao Kadam,
Age Major, Occu.Agri.,
13. Kashirao s/o Govindrao Kadam,
Age Major, Occu.Agri.,
14. Kavita w/o Dilip Paikrao,
Age Major, Occu. Household,
15. Anitabai w/o Gopal Matalkar,
Age Major, Occu. Household,
Res. No.4 to 15 R/o Nivgha (B),
Tq. Hadgaon, Dist. Nanded ..RESPONDENTS
Mr M.V. Ghatge, Advocate holding for Mr B.N. Gadegaonkar for the
petitioner;
Mr K.M. Suryawanshi, A.G.P. for respondent nos.1 & 3;
Mr B.G. Deshmukh, Advocate for respondent no.2;
Mr V.J. Dixit, Senior Advocate with Mr P.B. Rakhunde, Advocate for
respondents no.4 to 12;
Mr M.R. Sonawane, Advocate for respondents no.13 to 15
CORAM : R.G. KETKAR, J.
(Date of reserving the
judgment : 18th July, 2013
Date of pronouncing the
judgment : 29th July, 2013)
JUDGMENT
Heard Mr M.V. Ghatge, learned Counsel for the petitioner; Mr K.M. Suryawanshi, learned A.G.P. for respondent nos.1 & 3; Mr B.G. Deshmukh, learned Counsel for respondent no.2; Mr V.J. Dixit, learned ::: Downloaded on - 27/08/2013 21:11:44 ::: 3 WP No.5234/13A Senior Counsel with Mr P.B. Rakhunde for respondent nos. 4 to 12 and Mr M.R. Sonawane, learned Counsel for respondents no.13 to 15, at length. Rule. The learned Counsel for the respective respondents waive service. At the request and by consent of learned Counsel for the parties, Rule is made returnable forthwith and the petition is taken up for final hearing.
2. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner has challenged the judgment and order dated 17th June, 2013, passed by the Additional Collector, Nanded, in dispute styled as an appeal preferred by him under section 35 (3-B) of the Maharashtra Village Panchayats Act, 1958 (for short Act). By that order, the Additional Collector dismissed the dispute referred by the petitioner, challenging the proceedings and the resolution passed in the special meeting dated 25th March, 2013, of Grampanchayat, Nivgha (Bazar), Taluka Hadgaon, District Nanded (for short "Panchayat"). The special meeting was presided over by Tahsildar, Hadgaon, wherein the motion of no confidence against the petitioner as a Sarpanch of Panchayat was carried and accordingly resolution was passed by the requisite majority under section 35 of the Act read with the Bombay Village Panchayats Sarpanch and Upa-Sarpanch (No Confidence Motion) Rules, 1975 (for short "No Confidence Rules"). The relevant and material facts that are necessary for the disposal of the present petition, briefly stated, are as under :-
::: Downloaded on - 27/08/2013 21:11:44 ::: 4 WP No.5234/13A3. The Panchayat consists of 13 members. The petitioner was elected as a Sarpanch on 28th November, 2010. The proceedings under section 7 of the Act were initiated by respondent no.7 Sadashiv Paikwar and four other members against the petitioner, alleging that he had not conducted statutory meetings. By judgment and order dated 11th February, 2013, the Additional Collector, Nanded, dismissed that complaint. It is the case of the petitioner that respondent no.7 Paikwar is a very influential member of the Panchayat. He pressurized the other members of the Panchayat and moved the requisition before Tahsildar for discussing no confidence motion against the petitioner on 19th March, 2013. The Tahsildar, Hadgaon, convened a special meeting on 25th March, 2013.
4. On 25th March, 2013, a special meeting was held at the Panchayat office and the same was presided over by the Tahsildar, Hadgaon. In that meeting, the petitioner specifically requested for taking votes by secret ballot and the said request was rejected on the ground that there is no such provision in the Act. The petitioner has further come with the case that apart from the petitioner, 9 members out of 13 also requested for taking votes by secret ballot. The case of the petitioner is that out of 13 members, 10 members made a request for secret ballot as the members were pressurized by respondent no.7. The Presiding Officer, however, ignored the same and the proceeding was continued. In short, without hearing the petitioner and without giving members an opportunity ::: Downloaded on - 27/08/2013 21:11:44 ::: 5 WP No.5234/13A to vote by secret ballot, the proceedings was concluded. There was no proposer and seconder of the motion of no confidence and it was declared that the motion of no confidence was carried against the petitioner. Aggrieved by this, the petitioner referred dispute, before the Collector, Nanded. Respondents no.3 to 11 resisted the dispute by filing their reply. Respondents no.12 to 14 also filed their reply and supported the claim of the petitioner. By the impugned order, the Additional Collector, dismissed the dispute. Against this order, the petitioner has instituted this petition under Articles 226 and 227 of the Constitution of India.
5. In support of this petition, Mr Ghatge submitted that the provisions of the Bombay Village Panchayats (Meetings) Rules, 1959 (for short "Meeting Rules"), are applicable while considering the motion of no confidence and in particular, rule 17 of the Meetings Rules is mandatory and failure to comply the said provision results in vitiating the entire proceedings, as also the resolution passed in the special meeting. In support of this submission, he relied upon the judgment of the Division Bench of this Court in Vishnu Ramchandra Patil vs. Group Gram Panchayat Kharivli & ors., 2013 (3) Mh.L.J. 133. He further submitted that the petitioner had made a written request for taking votes by secret ballot. The said request was also supported by other nine members. Out of 13 members present in the special meeting, 10 members requested for taking votes by secret ballot. Thus majority members requested to take ::: Downloaded on - 27/08/2013 21:11:44 ::: 6 WP No.5234/13A votes by secret ballot. The Presiding Officer, however, rejected that request, on the ground that there is no such provision in the Act. He invited my attention to rule 28 of the Meetings Rules, as also the Division Bench judgment of this Court in the case of Maruti Bandu Patil vs. Village Panchayat Sidhnerli & ors., 1981 Mh.L.J. 255. Mr Ghatge also relied upon the decision of the Apex Court in the case of Jaenendrakumar Phoolchand Daftari vs. Rajendra Ramsukh Mishra & ors., AIR 1994 S.C. 586, which considered the provisions of the Bombay Village Panchayats (Sarpanch and Up-Sarpanch) Election Rules, 1964 (for short "Election Rules"), and in particular rules 10 (2) and 13 thereof.
6. On the other hand, Mr Dixit submitted that though the provisions of the Meetings Rules are applicable while considering motion of no confidence under section 35 of the Act, rule 17 is not mandatory. He relied upon the Full Bench decision of this Court in the case of Viswas Pandurang Mokal vs. Group Grampanchayat Shihu & ors., 2011 (3) Bom. C.R. 495. Mr Dixit also relied upon the decision of the learned Single Judge of this Court in the case of Vishnu R. Patil vs. Group Grampanchayat, Kharivali & ors., Writ Petition No.167 of 2011 and other petitions, decided on 26th July, 2011.
7. Mr Dixit further submitted that when the motion of no confidence was put to vote, the petitioner made written application requesting for ::: Downloaded on - 27/08/2013 21:11:44 ::: 7 WP No.5234/13A taking votes by secret ballot. Respondent no.12 Sandeep Uttamrao Kadam signified his no objection. He submitted that out of 13 members, only 2 members requested for taking votes by secret ballot. However, there is interpolation in the proceedings of the meeting dated 25th March, 2013. In that, after the words ";kauh" (the said person), the words "and eight others" were added. He submitted that this is evident from perusal of the appeal preferred by the petitioner. He submitted that no ground was raised before the Additional Collector, that though 10 members out of 13 demanded taking votes by secret ballot, the said demand was turned down.
8. In other words, Mr Dixit submitted that the petitioner did not allege breach of rule 28 of the Meetings Rules. He invited my attention to the reply filed by respondents no.4 to 12 before the Additional Collector on 15th April, 2013, in particular paragraph 5, paragraph 8 and paragraph 12 thereof. He also invited my attention to the written arguments dated 29th April, 2013 submitted by respondents no.4 to 12 herein, and in particular paragraph 5 thereof.
9. Mr Sonawane appearing on behalf of respondents no.13 to 15 supported the impugned order.
10. I have considered the rival submissions made by the learned Counsel appearing for the parties. I have also perused the material on ::: Downloaded on - 27/08/2013 21:11:44 ::: 8 WP No.5234/13A record, as also the original record of the Additional Collector, Nanded, as also proceeding book of the monthly meetings of the Panchayat, and in particular proceedings of the special meeting dated 25th March, 2013.
11. As noted earlier, on 19th March, 2013, 9 members out of 13 of the panchayat (which is not less than 1/3rd), moved a motion of no confidence against the petitioner after giving such notice thereof to the Tahsildar, as required under section 35 (1) of the Act. As required by sub-section (2) thereof, within seven days from the date of receipt of the notice under sub-section (1), Tahsildar convened a special meeting of the panchayat on 25th March, 2013, at 3.00 p.m. at the office of the panchayat. At such meeting, the Sarpanch, against whom the motion of no confidence is moved, has a right to speak or otherwise to take part in the proceedings at the meeting (including the right to vote). In exercise of powers under section 176 of the Act and of all the powers enabling it in that behalf, the Government of Maharashtra made No Confidence Rules.
Sub-rule (1) of rule 2 thereof, provides that the members of a panchayat who desire to move a motion of no confidence against the Sarpanch or the Up-Sarpanch, shall give notice thereof in the form appended thereto, to the Tahsildar of the Taluka in which such panchayat is functioning.
Where the members desire to move the motion of no confidence against Sarpanch, as well as the Up-Sarpanch, they shall give two separate notices. Sub-rule (2) provides that the notice under sub-rule (1) shall be accompanied by seven additional copies thereof, and the Tahsildar shall ::: Downloaded on - 27/08/2013 21:11:44 ::: 9 WP No.5234/13A send one copy to the Sarpanch; one to the Up-Sarpanch and one each to the Zilla Parishad, the Panchayat Samiti, the Collector and the Commissioner. One copy shall also be given to the Secretary. Sub-rule (3) lays down that the Tahsildar shall immediately, on receipt of the notice under sub-rule (1), satisfy himself that notice has been given by not less than 1/3rd of the total number of members (other than associate members), who are for the time being entitled to sit and vote at any meeting of the panchayat and then convene a special meeting for the purpose, within seven days from the date of receipt of such notice. Rule 3 thereof lays down that, immediately after the meeting, the Tahsildar shall communicate to the Zilla Parishad, the Panchayat Samiti, the Collector and the Commissioner, the names of all the members of the panchayat who were present at the meeting, the decision taken on motion, and the number of votes in favour of, or against, the motion.
12. Mr Ghatge submitted that the provisions of the Meetings Rules are applicable while considering the motion of no confidence, in particular rule 17 of the Meetings Rules, is mandatory. Rule 17 reads as under :-
"17. (1) A member who has given notice of a motion shall, when called on, either, -
(a) state that he does not wish to move the motion, or
(b) move the motion in which case he shall commence his speech by a formal motion in the terms appearing on the list of business, after the motion is duly seconded. (2) If a member when called is absent, any other member ::: Downloaded on - 27/08/2013 21:11:44 ::: 10 WP No.5234/13A may, with the permission of the person presiding, move the motion standing in the name of the absent member, if permission is not granted to the other member to move the motion, the motion shall lapse."
13. Relying upon rule 17 extracted hereinabove, Mr Ghatge submitted that a member who has given notice of a motion, shall state that he does not wish to move the motion, or move the motion in which case he shall commence his speech by a formal motion in the terms appearing on the list of business, after the motion is duly seconded. In the present case, the motion was neither moved nor seconded. In support of his submission, he relied upon the Division Bench judgment of this Court in the case of Vishnu (supra).
14. Before I consider this submission, it is necessary to make a brief reference to the earlier two decisions rendered by the learned Single Judges of this Court. In the case of Vijay Ramchandra Katkar vs. Group Grampanchayat, Pali & anr., 2010 (4) Mh.L.J. 497, in paragraph 5 of that report, the learned Single Judge (Coram : R.C. Chavan, J.) observed that the No Confidence Motion Rules are silent on the manner in which the special meeting is to be conducted and, therefore, the Meetings Rules would apply to such meetings. In paragraph 7 of that report, it was also observed that rules 17 to 26 of the Meeting Rules provide the procedure for considering the motions at meetings. A member who has given notice of a motion can neither state ::: Downloaded on - 27/08/2013 21:11:44 ::: 11 WP No.5234/13A that he does not wish to move the motion, or may move the motion.
Once a motion is moved and seconded, it is not allowed to be withdrawn.
The members are then permitted to speak on the motion. The mover of the motion or the secondor can reply at the conclusion of the debate, and on conclusion of the debate on the motion, when the presiding officer is satisfied that the motion has been sufficiently discussed, he may put the motion to vote. In paragraph 8 thereof, the judgment of the learned Single Judge of this Court in Govind Nivrutti Hipparkar vs. Tahsildar, Taluka Sangola & ors., in Writ Petition No.9819 of 209, decided on 18th January, 2010, was considered. In that case, it was held that it was incumbent on the Tahsildar to provoke a debate by affording an opportunity to the person against whom 'no confidence motion' is sought to be moved to make his point by permitting him to speak. A meeting where the motion and the provisions of law are only read out cannot be called a meeting at which the motion was debated. The Court, therefore, held that such a motion could not be upheld, upon a challenge being raised.
15. In paragraph 9 of that report, Honourable Mr Justice R.C. Chavan considered the decision in the case of Nivrutti Kashinath Bansode & anr.
vs. Gram Sevak, Grampanchayaat, Nazara & ors., in Writ Petition No. 6873 of 2008, decided on 24th October, 2010. The learned Single Judge in that case held that section 35 of the Act mandates that the Sarpanch against whom a resolution of no confidence is to be passed, would be ::: Downloaded on - 27/08/2013 21:11:44 ::: 12 WP No.5234/13A entitled to address the House. The Court also referred to Meeting Rules and observed that these rules clearly provide that a motion can be put to vote only when it is proposed and seconded by someone. The Court concluded that since no opportunity was given to the members to speak at the meeting, the resolution could not be upheld. In paragraph 22 of the report, Honourable Mr Justice R.C. Chavan recorded two findings, namely, the petitioner was not heard before resolution was put to vote and the salutary procedure prescribed in rules 17 to 26 of the Meeting consequently, Rules was not followed, the resolution could not have been saved and the impugned orders passed by the Collector and Commissioner upholding the resolution were required to be quashed and set aside, as also the resolution itself. The submissions made on behalf of the contesting respondents that even if it is held that the resolution was not validly passed because of failure of the presiding officer to follow prescribed procedure, and not for any fault on the part of of majority of members of Grampanchayat, the petitioner could not be permitted to occupy the office after losing the support of majority was considered.
Honourable Mr Justice R.C. Chavan also considered the submission in the light of the decision of the learned Single Judge of this Court in the case of Durgadas Ukhaji More & ors. vs. Additional Commissioner, Nashik Division, Nashik & ors., 2003 (1) Mh.L.J. 420, to the effect that a motion of no confidence could not be set at naught on account of technical lapses and that the requirement of sub-rule (2) of rule 2 of the No Confidence Motion Rules, was to be considered as a directory and ::: Downloaded on - 27/08/2013 21:11:44 ::: 13 WP No.5234/13A not mandatory. Honourable Mr Justice R.C. Chavan held that rule 17 of the Meeting Rules is mandatory.
16. In a batch of writ petitions, namely, Writ Petition No.167 of 2011 and others, decided on 26th July, 2011, the learned Single Judge of this Court (Coram : S.C. Dharmadhikari, J.) considered the Full Bench decision of this Court in the case of Viswas Pandurang Mokal (supra). In paragraph 23 of that report, Honourable Mr Justice S.C. Dharmadhikari observed that in all the matters, the requisition was given to convene the meeting by the requisite number of persons, the meeting has been convened in pursuance of that notice. The grievance was that the motion was not moved and seconded at all. From the perusal of the minutes of the meeting in those matters, it was apparent that the Sarpanch had notice of the meeting and the purpose for which it was convened. The notice itself indicated that the members wish to express their no confidence in the Sarpanch. Once the Sarpanch had notice of meeting and he attended the same and when the proceedings commenced by the Tahsildar announcing that the meeting is convened to consider the motion of no confidence, then, merely because the motion was not formally moved or seconded will not be of any significance. The Tahsildar called upon the members present to discuss and speak on the motion. Thereupon, the petitioners were given an opportunity to place their version. It was not as if because the motion has not been moved and seconded formally, that any prejudice has been caused to the ::: Downloaded on - 27/08/2013 21:11:44 ::: 14 WP No.5234/13A petitioners. The petitioners were aware as to who has given the notice to move the motion. The petitioners knew this fact when they received a copy of the notice which was issued under section 35 (2) of the Act. It was observed that merely because rule 17 was not adhered to, it will not, in each case, invalidate the motion. Rule 17 cannot be stretched to such an extent as would render, section 35 and the substantive sub-
sections thereof, wholly nugatory. Ultimately, the meeting for consideration of a no confidence motion has to be regulated by some procedural rules and, therefore, the Meeting Rules, to the extent that they are not inconsistent with the substantive provisions, will apply. Mere non compliance of some of the rules and rule 17, it cannot be said that in all cases the motion has not been moved and carried at all. Rule 17 will have to be construed in the light of sub-section (1) of section 35, which itself opens with the words "motion of no confidence may be moved by not less than 1/3rd of the total number of persons who are for the time being entitled to sit and vote in the meeting of the Panchayat". If the motion is not moved by the number of members contemplated by sub-
section (1), that motion need not be pursued further. Therefore, the notice being required to be given by this number, that was more prominence. How it was placed before the meeting and in what manner, is not of so much importance and significance as compared to the first mandatory pre-condition. Honourable Mr Justice S.C. Dharmadhikari held that in the cases before him he found that no prejudice was caused as there was substantial compliance of requirement under rule 17.
::: Downloaded on - 27/08/2013 21:11:44 ::: 15 WP No.5234/13AWhen the agenda of the meeting is known, a person may be called upon to move a particular subject or issue on the agenda item and then it may be enquired by the Presiding Officer, as to whether somebody wants to second it or not. The House can discuss the resolution even in the absence of anybody moving and seconding it once it is on the agenda and when in its turn a Presiding Officer calls it out.
17. In paragraph 24 of that report, the Honourable Mr Justice S.C. Dharmadhikari observed that when the members assembled at the venue of the meeting on the date and time specified, the Presiding Officer stated the purpose of the meeting and initiated the discussion on the no confidence motion. Some of the members who had signed the requisition, spoke and pointed out as to how they have lost confidence in the Sarpanch. The Sarpanch thereafter rose to speak and clarified the matter. He was also given full opportunity. After the discussion and speeches were over, the Presiding Officer stated that the motion has to be put to vote and enquired the manner thereof, namely, if anybody desires to have vote by secret ballot or not. The requisitions in that behalf and requests made were considered, and appropriate steps were taken to put the motion to vote. After the voting was concluded, the result was declared by the Presiding Officer. Honourable Mr Justice S.C. Dharmadhikari, therefore, held that after having fully participated in the discussion, hearing everybody's speeches, replying and clarifying the manner with all details, it will not be open for the petitioners now to urge ::: Downloaded on - 27/08/2013 21:11:44 ::: 16 WP No.5234/13A in the peculiar facts of those cases, that the motion was not moved and seconded and, therefore, the entire meeting and the discussion and resolution thereat is invalid and illegal. The learned Single Judge observed that he found that, if the requirement of rule 17 is not a mandate, but a matter of procedure, then, unless serious prejudice for want of compliance therewith is demonstrated, the motion cannot be said to be invalid and illegal nor could any deficiency be found in the conduct of the meeting. No prejudice was demonstrated for want of compliance with this procedural aspect. The learned Single Judge considered the decision of the Apex Court in the case of Govindlal Chagganlal Patel vs. The Agriculture Produce market Committee & ors. , AIR 1976 S.C. 263 and "Shackleton on the Law and Practice of Meetings" by Ian Shearman, Eighth Edition.
18. The judgment of the learned Single Judge, dated 26th July, 2011 in Writ Petition No.167 of 2011 & other Writ Petitions, was challenged by filing Letters Patent Appeal and the decision is rendered in the case of Vishnu (supra). After considering the Full Bench decision of this Court in the case of Viswas Pandurang Mokal (supra), the Division Bench observed in paragraph 14 as under :-
"14. As regards the first point, the consistent view in the judicial pronouncements, while interpreting Rule 17 of the Meeting Rules, is that Rule 17 provides that the person who has submitted notice of the Motion shall move the Motion in the meeting. That procedure has been held to be mandatory procedure in relation to ::: Downloaded on - 27/08/2013 21:11:44 ::: 17 WP No.5234/13A any other Motions moved before the Panchayat governed by the Meeting Rules. There is nothing in Rule 17 to suggest that the same must be construed as mandatory for general meetings and directory for meetings to consider No Confidence Motion. The question as to whether Rule 17 of the Meeting Rules applies to the Motion of No Confidence has already been answered by the Full Bench of our High Court in the case of Shri.Vishwas Pandurang Mokal (supra). In paragraph 17, the Full Bench unreservedly held that Rule 17 of the Meeting Rules will apply to a meeting called under Section 35 of the Act of 1958. The Full Bench was conscious of the fact that Section 35 by itself does not contain any provision as ig to how that meeting is to be conducted.
Nevertheless, the Full Bench has expounded that it is amply clear that moving of the Motion of No Confidence is not by submission of requisition to the Tahsildar. Whereas, the requisition is only for calling a special meeting to facilitate moving of Motion of No Confidence. Further, the Motion of No Confidence is required to be actually moved in the meeting of Village Panchayat. This exposition can be discerned from the highlighted portion of paragraph 17 of the Full Bench decision reproduced hereto. No doubt, in paragraph 18, the Full Bench went on to observe that it was not deciding the question as to what is the consequence in relation to the validity of or otherwise of a Motion of No Confidence being passed against the Sarpanch or Up-sarpanch in violation and/or without following a particular Rule. Further that question will have to be decided in each case after considering the nature of the provision, whether the provision is mandatory or directory. However, this observation will have to be read in the context of the dictum found in paragraph 17 of the decision of the Full bench which has unambiguously concluded that moving of the Motion of No Confidence is not by submission of requisition to the Tahsildar but by moving a Motion of No Confidence in the meeting. In other ::: Downloaded on - 27/08/2013 21:11:44 ::: 18 WP No.5234/13A words, the questions posed for consideration in the present appeals are no more res integra as the same are answered by the Full Bench of our High Court in the case of Vishwas Pandurang Mokal (supra)".
19. In the case of Viswas (supra), the Full Bench observed in paragraphs 17 and 18, as under :-
"17. 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 21 deals with how a person who wants to speak on a motion has to address. What should be the duration of the speech and what is the decorum 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 and 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 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 ::: Downloaded on - 27/08/2013 21:11:44 ::: 19 WP No.5234/13A exercise his right to participate and speak at that 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 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 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 rule 17 will apply in a meeting called under section
35. As observed above section 35 contains a provision for submission of requisition by members to the Tahsildar for calling a special meeting of the village panchayat to consider the motion of no confidence against Sarpanch or Up-Sarpanch. It casts a duty on the Tahsildar to call a meeting for that purpose within seven ::: Downloaded on - 27/08/2013 21:11:44 ::: 20 WP No.5234/13A days of the receipt of the requisition. But section 35 does not contain any provision as to how that meeting is to be conducted, save and except to provide that the Sarpanch or Up-Sarpanch concerned shall have a right to attend and participate in that meeting. We have already observed above that perusal of No Confidence Motion Rules and the Form of the requisition shows that when the members of the village panchayat submit the requisition to the Tahsildar, what they actually do is that they request the Tahsildar to convene a special meeting of the village panchayat so that in that meeting they can move a motion of no confidence against Sarpanch or Up-Sarpanch. It is, thus clear that moving of the motion of no confidence is not by submission of requisition to the Tahsildar. The requisition is only for calling a special meeting to facilitate moving of motion of no confidence. The motion of no confidence is actually moved in the meeting of the village panchayat and as there is no contrary provision to be found either in the Act or in the No Confidence Motion Rules, in relation to moving of a motion in a meeting of the village panchayat, Rule 17 of the Meeting Rules which makes such a provision will apply. In the meeting Rules there is a provision made for calling a special meeting of village panchayat because a requisition is received from members. Therefore, concept of convening a special meeting of the village panchayat as a consequence of requisition received from the members is to be found in the Meeting Rules itself and therefore, all those provisions contained in the Meeting Rules in relation to convening and holding of a special meeting of the village panchayat will apply to the special meeting convened under section 35, subject to there being any specific contrary provision in the Act or in the No Confidence Motion Rules.
::: Downloaded on - 27/08/2013 21:11:44 ::: 21 WP No.5234/13APerusal of the provision of sub-section (3-A) of section 35 shows that provision makes difference between moving of a motion and carrying of a motion by requisite majority. Provision of sub-
section (3-A) of section 35 reads as under :-
(3-A) If a motion (is not moved or is not carried) by (a majority of not less than two-third of) (or, as the case may be, three-fourth, of) the total number of the members who are for the time being entitled to sit and vote at any meeting of the panchayat, no such fresh motion shall be moved against the Sarpanch, or, as the case may be, the Upa-Sarpanch within, a period of (one year) (from the date of such special meeting.) It is clear that in a special meeting of the village panchayat called for the purpose of consideration of motion of no confidence against the Sarpanch or Up-Sarpanch, a motion is to be moved in the meeting.
18. We make it clear that though it is clear to our mind that the provisions of the Meeting Rules generally and Rule 17 in particular will apply to the above extent to a meeting called under section 35, we are not deciding the question as to what is the consequence in relation to validity or otherwise of a motion of no confidence being passed against Sarpanch or Up-Sarpanch in violation or without following a particular Rule. That question will have to be decided in each case after considering the nature of the provision, whether the provision is mandatory or directory. In other words, though it is clear to our mind that the provisions of Rule 17 of the Meeting Rules are to be followed in passing the motion in a meeting called under section 35, we are not deciding the question as to what is the consequence if the provisions are not followed and the motion is passed. Because, ::: Downloaded on - 27/08/2013 21:11:44 ::: 22 WP No.5234/13A that question as to whether the provisions of Rule 17 are mandatory or directory has not been referred to us."
20. As against this, perusal of paragraph 14 of the judgment of this Court in the case of Vishnu R.Patil (supra) shows that the Division Bench relied only on the Full Bench decision and came to the conclusion that motion of no confidence is not by submission of requisition to the Tahsildar, but by moving a no confidence in the meeting. In other words, the Division Bench held that rule 17 of the Meeting Rules is mandatory and in that the motion has to be moved and seconded. The Division Bench did not give any other reason for holding that rule 17 is mandatory.
In other words, the Division Bench did not independently hold that rule 17 is mandatory.
21. In the case of Vishwas Pandurang Mokal (supra), the Full Bench has clearly recorded that it did not decide the question as to what is the consequence if the provisions are not followed and the motion is passed.
That question will have to be decided in each case after considering the nature of the provision, whether the provision is mandatory or directory. In view thereof, I prefer to follow the Full Bench decision in the case of Vishwas Pandurang Mokal (supra), to examine the facts and circumstances in the present case.
::: Downloaded on - 27/08/2013 21:11:44 ::: 23 WP No.5234/13A22. Perusal of the proceedings of the special meeting dated 25th March, 2013 shows that the meeting was presided over by the Tahsildar and it was made clear that the said meeting was convened for considering the motion of no confidence against the petitioner. Initially, the discussion was held on the subject of no confidence against the Sarpanch and as many as ten charges against the petitioner were considered. The Sarpanch gave explanation in respect of charge no.1 and denied the rest of the charges. Respondent no.7 Shri Paikwar gave Collector, appeal re-joinder to the effect that against the decision of the Additional is pending before the Additional Divisional Commissioner and produced the copy of the appeal memo and submitted that all the charges levelled against the petitioner are true.
23. After this, voting on the motion of no confidence was ordered. It was informed to the members that voting shall be made by show of hands. On that, the petitioner gave a written application and requested to take voting by secret ballot. The said application was turned down by the Tahsildar on the ground that there is no such provision in the Act. The minutes further record that respondent no.12 Sandeep Uttamrao Kadam signified his no objection. The controversy between the petitioner on one hand and respondents no.4 to 12 on the other, is apart from petitioner and Shri Sandeep Uttamrao Kadam, whether eight other members also demanded to take voting by secret ballot. Whereas, the case of the petitioner is that, apart from petitioner and respondent no.12 Shri ::: Downloaded on - 27/08/2013 21:11:44 ::: 24 WP No.5234/13A Sandeep Uttamrao Kadam, even eight members demanded voting by secret ballot. Thus, out of 13 members, 10 members demanded voting by secret ballot. In terms of Rule 28 of the Meeting Rules, if the majority of members present so decide, the votes shall be taken by ballot. As against this, the case of respondents no.4 to 12 is that the petitioner made written application requesting to take voting by secret ballot.
Respondent no.12 Shri Kadam signified his no objection. Thus, out of 13 members, only two members demanded voting by secret ballot. In other words, the majority members did not demand voting by secret ballot and accordingly the voting took place by show of hands. The case of the respondents no.4 to 12 is that after the name of Sandeep Uttamrao Kadam, the words "and eight others" were subsequently added. The question that is to be decided in the present case is, whether in fact, petitioner, respondent no.12 and eight other members demanded voting by secret ballot or not and whether the words "and eight others" is an interpolation. In such type of matters, obviously there is no direct evidence and one has to find out from the circumstances on record, whether, in fact, 10 members out of 13 have demanded voting by secret ballot.
24. Rule 40 of the Meeting Rules lays down that the proceedings of each meeting of the Panchayat shall be recorded in a bound book . In this book, shall be entered the names of the members present at each meeting, the decisions arrived at, the names of the members voting ::: Downloaded on - 27/08/2013 21:11:44 ::: 25 WP No.5234/13A for or against and of the members remaining neutral. The case of the petitioner is that even eight other members demanded voting by secret ballot. Now, if the minutes of the special meeting dated 25th March, 2013 are carefully perused, the words "and eight others" should have appeared immediately after the name of Sandeep Uttamrao Kadam.
However, those words appear after the word ";kauh", thereby referring to Shri Kadam. If the sentence with the words "and eight others" is read as it is, it makes no sense. Apart from that, when you are adding something, normally it is added above the line and not below the line. In view of rule 40 of the Meeting Rules, the names of eight members who demanded voting by secret ballot ought to have been mentioned. Perusal of the minutes show that at least on three occasions there was scratching. There was no reason for not scratching the words after the name of Sandeep Uttamrao Kadam and by adding the names of eight members. It is also significant to note that in the appeal preferred by the petitioner, ground based on rule 28 of the Meeting Rules was not at all raised. What was contended in ground no.7 was that while passing the resolution of no confidence, the Tahsildar did not follow the procedure of taking votes by secret ballot. If really eight members, apart from the petitioner and respondent no.12 had demanded voting by secret ballot, the petitioner would have specifically raised contention to that effect.
Respondents no.4 to 12 filed their reply dated 15 th April, 2013. The assertions made in ground no.7 were denied in paragraph 11. Perusal of the written arguments filed by respondents no.4 to 12, and in particular ::: Downloaded on - 27/08/2013 21:11:44 ::: 26 WP No.5234/13A paragraph 5 thereof, also shows that the petitioner made written application demanding taking of votes by secret ballot and to which respondent no.12 Kadam signified his no objection. Perusal of paragraph 5 also indicates that demand for taking votes by secret ballot was made only by the petitioner, to which respondent no.12 signified his no objection. In other words, there was no demand made by eight members for taking votes by secret ballot. It is also material to note that before the Additional Collector, no such ground was even urged. Though in the appeal memo filed before the Additional Collector specific ground was raised as regards following the procedure laid down in rules 17 to 26 of the Meeting Rules, no ground based upon rule 28 was raised. This is to be appreciated on the backdrop of the fact that there were divergent views of the learned Single Judges and Division Benches of this Court, on the question whether the provisions of the Meeting Rules will apply to a meeting specifically convened for consideration of motion of no confidence. That controversy was ultimately set at rest by the Full Bench in the case of Viswas (supra). The petitioner had specifically raised ground no.4 in the dispute filed before the Additional Collector based on rules 17 to 26 of the Meeting Rules. The decision of the Full Bench was rendered on 21st April, 2011 and the dispute was referred on 26th March, 2013. Under such circumstances, failure of the petitioner to raise ground based on rule 28 of the Meeting Rules is fatal. The cumulative effect of the above discussion clearly shows that after the special meeting was over on 25th March, 2013, the words "and eight others" were added. In ::: Downloaded on - 27/08/2013 21:11:44 ::: 27 WP No.5234/13A view thereof, I have no hesitation in holding that 2 out of 13 members, demand for taking votes by secret ballot was made by two members and not by majority of members present at the time of the meeting. Rule 28 of the Meeting Rules, reads as under :-
"28. (1) Votes shall ordinarily be taken by word of mouth or by a show of hands but may, if the majority of members present so decide, be taken by ballot.
(2) Any member present at a meeting may refrain from voting if he so chooses."
Perusal of rule 28 extracted hereinabove shows that votes shall ordinarily be taken by word of mouth or by show of hands, but if majority of members present so decide, be taken by ballot. From the material on record, circumstances clearly point out that the demand for taking votes by secret ballot, was made by two members out of 13.
25. Mr Ghatge relied upon the Division Bench judgment of this Court in the case of Maruti (supra). In that case, the Division Bench of this Court considered the provisions of rule 10 (2) of the Bombay Village Panchayats (Sarpanch and Up-Sarpanch) Election Rules, 1964 (for short "Election Rules". Rule 10 of the Election Rules reads as under :-
"10. Procedure for election. -(1) If only one candidate has been duly nominated for the office of the Sarpanch or Upa-Sarpanch he shall be declared to have been duly elected as Sarpanch or, as the ::: Downloaded on - 27/08/2013 21:11:44 ::: 28 WP No.5234/13A case may be, Upa-Sarpanch. (2) If more than one candidate have been so nominated, the Presiding Officer shall proceed to elect the Sarpanch or as the case may be, Upa-Sarpanch. The voting at such election shall be by show of hands. If, however, any member present at the meeting so demands the voting shall be by ballot. The candidate who obtains the higher number of votes shall be declared to have been duly elected as Sarpanch or, as the case may be, Upa-Sarpanch. When an equality of valid votes is found to exist between any two or more candidates and the addition of one vote will entitle any of them to be declared as Sarpanch or, as the case may be, Upa-Sarpanch, the determination of the candidate to whom such additional vote shall be deemed to have been given shall be made by lot to be drawn by the Presiding Officer in such manner as he shall determine. "
The Division Bench observed in paragraphs 6 to 9 of the said report thus :-
"6. Rule 10 provides a regulatory procedure for achieving fair and free election. Therefore, interpretative process must advance the basic postulate of free and fair election. Secrecy of ballot is undoubtedly an indispensable adjunct of free and fair election. The election by ballot is to be held when demanded, as to statutorily assure the voter that his identity will not be disclosed so that the voter may vote without fear or favour and is also free from apprehensions. This rule subserves a very vital principle that a voter should be absolutely free to exercise his franchise untrammelled by any constraint. The provision of holding election by ballot is made in the rules to help voters to vote free from any inhibition, fear or apprehension of being subjected to some sort of calamity.::: Downloaded on - 27/08/2013 21:11:44 ::: 29 WP No.5234/13A
Thus the provision goes to the very root of the matter, namely, of holding free and fair elections of the office bearers of the Village Panchayat. To hold otherwise is to perpetuate the very mischief which is sought to be suppressed. The word used namely "shall'' has an inbuilt element of compulsion. If the provisions of Rule 10 are construed in this background, in our opinion, it is quite obvious that the word used viz. "shall"
clearly indicates that the provision is mandatory, and non- compliance of the said provision must result in certain consequences.
7. It is equally well settled that such a mandatory rule has to be followed scrupulously as non-observance of such rule might affect the fairness and purity of election itself. Therefore, challenge in such cases is not only based on the ground of mere error but also on the ground that as a result of such non-
observance the whole election process has been rendered impure, which might result in the election not being free and fair. In this context a reference could usefully be made to a decision of this Court in Madhavrao Tatyasaheb Ghatge v.
Collector, District Kolhapur, . The provision in Rule 10 is made for securing free and fair election, Therefore, it cannot be said that this is merely a technical breach. As the said rule goes to the very root of the matter and ensures a free and fair election, which is the essence of purity of election, the non-observance of the said mandatory provision must vitiate the election as a whole.
8. However, it is contended by Shri Jahagirdar, learned counsel appearing for the respondents that the said provision is impossible of compliance as no procedure has been laid ::: Downloaded on - 27/08/2013 21:11:44 ::: 30 WP No.5234/13A down in the Rules, in case an election is to be held by a secret ballot. He further contended that it is nowhere laid down in the Rules as to what procedure the Presiding Officer should follow if voters are illiterate when an election is to be held by a secret ballot. Therefore, according to the learned counsel, if the provision made in the Rules in that behalf is wholly unenforceable in the absence of procedure to be followed then the Presiding Officer was right in rejecting the said demand when he found that four of the voters were illiterate. It is not possible for us to accept this contention for the obvious reasons. It is not correct to say that the said provision is impossible of observance, It is well established principle of interpretation of statutes that if a statute is passed for the purpose of enabling something to be done, but omits to mention some details which are necessary for the proper and effectual performance of the said work or duty, then the Courts are at liberty to infer that the statute by implication confers all necessary powers without which the said duty cannot be performed. This is what is popularly known as doctrine of implied power. Where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means as are essentially necessary for its execution. If the Presiding Officer is obliged to hold election by following the process of voting by ballot, then by necessary implication, he has ample powers to achieve the said object by following the necessary procedure. What should be that procedure must depend upon the facts and circumstances of each case. Guidelines in this behalf are not lacking in the enactment or the Rules. General elections to elect members to the village ::: Downloaded on - 27/08/2013 21:11:44 ::: 31 WP No.5234/13A Panchayat are held by following the procedure of secret ballot.
Detailed procedure in that behalf is laid own by the Act and the Rules. The Rules called Bombay Nyaya Panchayat (Conduct of Election) Rules, 1959 also provide for the procedure the Presiding Officer is expected to follow for holding the election by ballot. Therefore, it is not possible for us to come to the conclusion that the observance of the said Rule was wholly impossible in this case only because four voters were illiterate. It is common knowledge that in general elections even an illiterate voter is in a position to exercise his right of franchise.
9. Therefore, it is quite clear to us that as the provision made in Rule 10 is mandatory and goes to the very root of the matter, its non-observance will vitiate the whole election. This being the position, the elections held in the present case without following the said mandatory procedure are obviously illegal and are liable to be set aside."
26. Rule 28 of the Meeting Rules extracted herein above provides that votes shall ordinarily be taken by word of mouth or by a show of hands, but may, if the majority of members present so decide, the votes shall be taken by ballot. In the case Jaenendrakumar (supra), the Apex Court considered rules 10 (2) and 13 of the Election Rules. In paragraph 7 of that report, the Apex Court has observed that, according to sub-rule (2) of Rule 10, the Presiding Officer conducting the election of the Sarpanch or the Upa-Sarpanch among the contestants in a meeting of the members of the Panchayat concerned convened for he purpose, is required to call upon such members to vote by show of hands. But, it requires the ::: Downloaded on - 27/08/2013 21:11:44 ::: 32 WP No.5234/13A Presiding Officer to carry out such election by secret ballot if any member present at the meeting, make a demand in that regard. Thus, the sub-
rule clearly specifies the method by which the Presiding Officer shall proceed to have the Sarpanch or Upa-Sarpanch, as the case may be, elected. However; the question is, whether the sub-rule permits the Presiding Officer of the election meeting to have the Sarpanch or Upa-
Sarpanch, as the case may be, elected by calling the voters to elect the Sarpanch, by show of hands or by voting by ballot, according to his choice.
If it is to be so held, the requirement of holding of election by ballot on demand by any member present at the meeting convened under the sub-rule, becomes superfluous. No requirement in a rule can be regarded as superfluous unless such a construction is likely to lead to an unwarranted anomaly. Having regard to the requirement of the provision which specifically provides as to how the Presiding Officer has to proceed to elect the Sarpanch or Upa-Sarpanch, as the case may be, the Court found it difficult to think that the Presiding Officer is given the choice or liberty of proceeding to have the Sarpanch or Upa-Sarpanch elected in a manner different from that indicated in the provision in sub-rule (2) of Rule
10. Rule 10 (2) makes it incumbent on the Presiding Officer to proceed to elect the Sarpanch or Upa-Sarpanch, as the case may be, in a meeting held by him by calling upon the voters in the meeting to elect the Sarpanch or Upa-Sarpanch, as the case may be, by show of hands unless there is a demand by any member present at the meeting to proceed with the election of the Sarpanch or Upa-Sarpanch, as the case ::: Downloaded on - 27/08/2013 21:11:44 ::: 33 WP No.5234/13A may be, by having recourse to voting by secret ballot. Rule 13 requires that the Presiding Officer shall record the names of members voting for or against a candidate or being neutral in the minutes of the meeting and on conclusion of the meeting to read out the same to the members before signing the same resulting in their deemed confirmation and becoming available for inspection by any member of the Panchayat. Hence, it becomes obvious that voting by show of hands is a general method contemplated in the said Rules while the voting by secret ballot is contemplated as an exception in a special situation.
27. In the instant case also, under rule 28 of the Meeting Rules, votes shall ordinarily be taken by word of mouth or by a show of hands but may, if the majority of members present so decide, be taken by ballot.
Even rule 40 of the Meeting Rules requires that in a bound book the names of the members present at each meeting, the decisions arrived at, the names of the members voting for or against and of the members remaining neutral, is required to be entered. Rule 10 (2) of the Election Rules and Rule 28 of the Meeting Rules, as also Rule 13 of the Election Rules and Rule 40 of the Meeting Rules are considered in juxtaposition, in my opinion, the judgment of the Apex Court in the case of Jaenendrakumar (supra) applies on all fours to the present case.
28. I have already held that the majority of the members did not demand taking of votes by secret ballot. In view thereof, the reliance ::: Downloaded on - 27/08/2013 21:11:44 ::: 34 WP No.5234/13A placed by Mr Ghatge on the decision of the Division Bench of this Court in the case of Maruti (supra) does not advance the case of the petitioners.
Mr Ghatge made a feeble attempt while submitting that respondents no.3 to 12 have raised the contention about interpolation in the minutes of the special meeting for the first time in this Court and no affidavit is filed raising such contention. I have already indicated that the petitioner did not raise this contention at any point of time and the said contention is raised for the first time in this petition. I have perused the original record of the proceedings of the special meeting. For the reasons already recorded, I am clearly of the opinion that the words "and eighteen others"
were added subsequently for the benefit of the petitioner. The petitioner is the only beneficiary because of addition of these words. I, therefore, do not find any merit in the submission of Mr Ghatge, that the proceedings and the resolution passed in the meeting of 25th March, 2013 are vitiated, for not taking the votes by secret ballot.
29 I have discussed in detail the manner in which the special meeting was convened. 9 members out of 13 had moved a requisition before the Tahsildar, Hadgaon, proposing a motion of no confidence against the petitioner. Thereafter a special meeting was convened, wherein all the 13 members were present. The motion of no confidence was discussed at length. The petitioner was given opportunity to refute the charges.
One of the members also submitted-rejoinder. After a detailed discussion, the resolution was put to vote and the resolution was passed ::: Downloaded on - 27/08/2013 21:11:44 ::: 35 WP No.5234/13A by 9 out of 13, that is to say, by the requisite majority of 2/3rd members.
30. In the light of the aforesaid discussion and having regard to the conduct of the petitioner, no case is made out by the petitioner for invocation of extra-ordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India. The petition, therefore, fails and the same is dismissed. Rule is discharged. In the circumstances, no order as to costs.
ig (R.G. KETKAR, J.)
31. At this stage, Mr.Ghatge orally applies for continuation of ad-
interim relief granted earlier by this Court on 5th July, 2013, for a period of two weeks from today.
32. Having regard to the fact that the petitioner intends to challenge this order before the higher Court and having further due regard to the fact that the ad-interim relief granted earlier by this Court is operating since 5th July, 2013, the request made by the Mr.Ghatge is reasonable.
Hence, notwithstanding dismissal of this Writ Petition, the ad-interim relief granted by this Court on 5th July, 2013 shall remain in force for a period of two weeks from today. Order accordingly.
(R.G. KETKAR, J.) amj/wp5234.13A ::: Downloaded on - 27/08/2013 21:11:44 :::