Bombay High Court
Shri Viswas Pandurang Mokal vs Group Gram Panchayat Shihu on 21 April, 2011
Equivalent citations: AIR 2012 (NOC) 40 (BOM.) FULL BENCH, 2011 (3) AIR BOM R 673
Author: D.K.Deshmukh
Bench: D.K.Deshmukh, Anoop V. Mohta, Ranjit More
1
Kambli
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.4601 OF 2010
...
Shri Viswas Pandurang Mokal ...Petitioner
v/s.
Group Gram Panchayat Shihu
and others ...Respondents
WITH
WRIT PETITION NO.7854 OF 2010
ig ...
Vijay Ramchandra Katkar ...Petitioner
v/s.
Group Gram Panchayat Pali,
Gramvikas Adhikari & Ors. ...Respondents
WITH
WRIT PETITION NO.7899 OF 2010
...
Shri Sandip Shankar Parab & Ors. ...Petitioners
v/s.
Vijay Ramchandra Katkar & Ors. ...Respondents
...
Mr.C.G.Gavnekar with Mr.G.S.Hiranandani, Mr.Suhas Deokar,
Mr.Subhash Patil, Mr.Ashutosh C.Gavnekar for the Petitioners
in W.P.No.4601 of 2010 and W.P.No.7854 of 2010.
Mr.M.M.Sathye for the Petitioner in W.P.No.7888 of 2010.
Ms.Ganjan Shah i/b S.A.Sawant for Respondents Nos. 1, 3 &
5 to 10 in W.P.No.4601 of 2010.
::: Downloaded on - 09/06/2013 17:12:26 :::
2
Mr.S.R.Nargolkar, Addl.G.P. with Mr.R.M.Patne AGP and
Mr.S.N.Bhosale, AGP for State.
...
CORAM: D.K.Deshmukh ,
Anoop V. Mohta, &
Ranjit More, JJJ.
DATED: 21st April, 2011
JUDGMENT:(PER D.K.DESHMUKH, J.)
1. The question of law which has been referred to us in Writ Petition No.4601 of 2001 is "Whether the provisions of the Meeting Rules and in particular Rule 17 thereof, will apply to the meeting convened specifically for considering the motion of no confidence moved in accordance with sub section 1 of section 35 of the said Act and the No Confidence Motion Rules?"
2. In Writ Petitions Nos.7854 of 2010 and 7899 of 2010, the issue or the question of law which has been referred to us is "Whether in proceedings under Sub-Section 3-B of section 35 of the Bombay Village Panchayats Act, 1958 a direction can lawfully be issued for convening a new ::: Downloaded on - 09/06/2013 17:12:26 ::: 3 meeting after expiry of the period of seven days provided under sub-section 2 of section 35 of the said Act on the basis of a motion of no confidence which is held to be illegal?".
3. Both questions referred to us relate to the provisions of the Bombay Village Panchayats Act in general and provisions of Section 35 in particular and therefore both these questions can be conveniently decided by a common judgment.
4. The facts of the case are that the Petitioner in Writ Petition No.4601 of 2010 was elected as a Sarpanch of the first respondent village panchayat on 2nd March 2009.
Respondent nos.2, 3 and 5 to 9 served a notice for moving a no confidence motion against the petitioner. On the basis of the requisition, a meeting was convened on 22nd January 2010 and the motion of no confidence was passed against the petitioner.
5. The petitioner filed a dispute before the Collector ::: Downloaded on - 09/06/2013 17:12:26 ::: 4 in accordance with sub section (3B) of section 35 of the Bombay Village Panchayat Act,1958 (hereinafter referred to as the said Act). A contention was raised by the petitioner in the said application that compliance with the requirements of Bombay Village Panchayats Sarpanch and Upsarpanch (No Confidence Motion) Rules, 1975 (hereinafter referred to as the No Confidence Motion Rules) was not made. In the dispute application, it was contended that in the meeting held on 22nd January 2010, a motion of no confidence was not moved by any member as required by the rules framed for holding the meeting. A contention raised in the dispute application filed by the petitioner appears to be that there was no compliance with the requirements of Bombay Village Panchayats (Meeting) Rules,1959 (hereinafter referred to as the Meeting Rules ).
6. In short, a contention was raised that as required by the provisions of the Meeting Rules, the motion was not moved by any member and was not seconded by any member.
::: Downloaded on - 09/06/2013 17:12:26 ::: 5After adjudication, the Collector upheld the validity of the no confidence motion. An appeal was preferred by the petitioner before the Additional Commissioner. In the appeal, the same contention was raised before the Additional Commissioner. It was contended that as the motion of no confidence was not at all moved and was not seconded, the same could not have been considered. The learned Additional Commissioner rejected the said contention by ig holding that the petitioner was given an opportunity to address the meeting and there was a discussion on the motion of no confidence in the meeting.
The Additional Commissioner held that eight out of ten members have voted in favour of the motion of no confidence and therefore, the petitioner has lost the support of majority.
7. Both these orders were challenged before this Court. When Writ Petition came up before the learned single Judge of this Court (A.S.Oka, J.), on behalf of the Petitioner it was claimed that the Meeting Rules apply to the special ::: Downloaded on - 09/06/2013 17:12:26 ::: 6 meeting called for consideration of no confidence motion against Sarpanch and as the provisions of those Rules were not followed in holding that meting, the Resolution is invalid.
The Petitioner relied on several judgments of the learned single Judges of this court as also a judgment of the Division Bench of this Court.
8. On the other hand, on behalf of the Respondents it was contended that to a meeting specifically convened for the purpose of consideration of motion of no confidence against Sarpanch the Meeting Rules are not applicable. On behalf of the Respondent reliance was placed on several judgments of the learned single Judges and the judgments of the Division Bench. The learned single Judge considered those judgments. The learned single Judge has referred to various judgments relied on by both sides before him and observed thus:
10. The learned counsel for the petitioner and the learned counsel for the contesting ::: Downloaded on - 09/06/2013 17:12:26 ::: 7 respondents have placed on record several decisions on this aspect. The first decision is in case of Ashok Mehta vs. State of Maharashtra and others (2004 Mh.L.J. 197). This was a case where the challenge was to the no confidence motion passed against Sarpanch. In paragraph 4 of its decision, the Division Bench has recorded the issue which arose for consideration. This was a case where the Presiding Officer was of the view that only the Sarpanch against whom the motion was moved was entitled to speak at the meeting and no other member of the Panchayat was entitled to speak.
In paragraph 6 of the decision, the Division Bench observed thus :
6 . The State Government has, by a notification dated 1.7.1959 framed the Bombay Village Panchayats (Meetings) Rules, 1959. The Rules provide for convening of meetings, holding of meetings and transaction of business at meetings. Rule 7 makes provisions for the service of notice upon members. Rule 9 speaks of the quorum for the transaction of business. Rule 11 provides for voting by a majority and Rule 15(1) provides that every meeting shall be open to the public.
Rules 17 to 20 make provision for the moving ::: Downloaded on - 09/06/2013 17:12:26 ::: 8 of the motion including an amendment thereto. Under Rule 21, a member desiring to propose and discuss any motion shall rise in his seat when speaking and address his speech to the person presiding. Rule 21(2) requires a member to confine his speech strictly to the question before the meeting and that he shall cease to make remarks which are held by the person presiding to be irrelevant or offensive. Rules 23 and 24 expressly postulate a debate on the motion which is being moved. Rule 24 provides that except for the mover or the seconder of the motion, no other member shall, without the express permission of the person presiding speak more than once on the same motion except for the purpose of making a personal explanation. Rule 25 permits the Presiding Officer to fix a reasonable time limit for a speech. Rule 26 postulates that on the conclusion of a debate on a motion or where the person presiding is satisfied that the motion has been sufficiently discussed, he may put the motion to the vote of the meeting without further discussion. Rule 30 provides for decision on points of order. Rule 34 provides that any member who disregards the authority of the person presiding or is guilty of obstructive or offensive conduct at any meeting, may be suspended. These provisions highlight the safeguards of a free and orderly debate in the Village Panchayat. The importance of a free debate in the Panchayat cannot be under emphasised. It lies at the heart of democracy. The Village Panchayat is an institution for democratic self governance at the level of the village. Any effort to stifle debate must be looked upon by the law with disfavour.
::: Downloaded on - 09/06/2013 17:12:26 ::: 911 The said decision of the Division Bench proceeds on the footing that the Meeting Rules will apply to the meeting specially convened for considering motion of no confidence. Reliance is placed on the decision of the learned Single Judge of this Court in case of Nivrutti Kashinath Bansode and another vs. Gramsevak, Grampanchayat, Nazara and others delivered in writ petition no.6873 of 2008 which was decided on 24th October 2008. The learned Single Judge after considering the provisions of the Meeting Rules and in particular rule 17 has taken a view that the said rule will have application to the meeting which is convened to consider the motion of no confidence. In paragraph 12 of the said decision, the learned Single Judge has observed thus :
12 The aforesaid rules very clearly provide that motion can be put to vote only if it is proposed and seconded by somebody. The record maintained by the Tahsildar does not indicate who was the proposer of the motion of no-confidence against the ::: Downloaded on - 09/06/2013 17:12:26 ::: 10 petitioners nor does the name of the seconder of the motion figure anywhere in the record.
12 Another decision of the Division Bench
which is material for consideration is in the case of
Hindurao Dnyanu Shirtode Vs. State of
Maharashtra delivered on 3rd September 1998 in
writ petition no.4687 of 1998. This was a case where igthe challenge was to the no confidence motion passed against the petitioner under the said Act. One of the contentions specifically canvassed by the petitioner before the Division Bench has been recorded in paragraph 8 of the said decision which reads thus :
8. Dr.Chowdhari next contended that neither the Motion of No Confidence has been proposed by any member nor has the same been seconded by another member and hence the No Confidence Motion is illegal. He has placed reliance on Rule 17 of the Bombay Village Panchayats (Meetings) Rule, 1959.
The said contention is answered clearly by the Division ::: Downloaded on - 09/06/2013 17:12:26 ::: 11 Bench in the same paragraph which reads as under:
"This again in our view will have no application to a meeting to consider a No Confidence Motion which will be governed by the Bombay Village Panchayats Sarpanch and Upa-
Sarpanch (No Confidence) Rules,
1975. The aforesaid Rules
namely Bombay Village
Panchayats (Meetings) Rules,1959
and Bombay Panchayats Sarpanch
and Upa-Sarpanch (No
Confidence) Rules,1975 has been framed in view of the powers conferred on the State Government by section 176 of the Act.
The same section provides for making
Rules for different purposes of the
Act. Different Rules are
therefore framed for achieving
different objects and purposes of the
Act. It will therefore not be open to
introduce one set of Rules while considering the provision of the other Rules which have been framed for distinct objects and purposes of the Act..."
Thus, pronouncement of law made by the Division Bench in the said decision is that the meeting to consider the no confidence motion will be governed by the said No Confidence Motion Rules. It was held that section 176 provides for making rules for different purposes of the Act and ::: Downloaded on - 09/06/2013 17:12:26 ::: 12 therefore, in exercise of rule making power, different rules have been framed for achieving different objects and purposes. Therefore, the Division Bench was of the view that the Meeting Rules will have no application to a meeting convened in accordance with the No Confidence Motion Rules.
13 There is another view of the another Division Bench in case of Sangeeta w/o Ramesh Ranvir Vs. Presiding Officer/Tahsildar, Purna (1999 (1) Mh.L.J. 958), wherein this Court upheld the contention that in absence of clear provisions of the No Confidence Motion Rules, the Meeting Rules will have to be read and applied to the special meeting called for the purpose of considering the motion of no confidence. There is a decision of the Single Judge in case of Shital Sudhir Sonavle Vs.Group Gram Panchayat (2003 Mh.L.J.(3) 565). The learned Judge considered the rules 17 of the Meeting Rules and held that the said Rule ::: Downloaded on - 09/06/2013 17:12:27 ::: 13 will have no application to the meeting convened to consider the motion of no confidence which is governed by the said Rules of 1975.
9. The learned single Judge after referring to different views on the issue has recorded a prima facie opinion that according to him the provisions of Rule 17 of the Meeting Rules will not apply to a meeting specifically convened for consideration of motion of no confidence against Sarpanch. However, he found different views expressed by the Division Bench of this court on this aspect and therefore he framed an issue to be referred to a Larger Bench and that is how the matter comes before us.
10. We have heard the learned Counsel for both sides. We have also read all the judgments which are relied on by the learned Counsel, which have also been referred to in the judgment of the learned single Judge quoted above. In our opinion, it is the provisions of Section 35 of the Act which are basically relevant for deciding this reference. Section 35 ::: Downloaded on - 09/06/2013 17:12:27 ::: 14 of the Act reads as under:
35. Motion of no confidence.- (1) 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. (Such notice once given shall not be withdrawn).
(2) Within seven days from the date of receipt by him of the notice under sub-section (1), the Tahsildar shall convene a special meeting of the panchayat for considering the motion of no confidence at the office of the panchayat at 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 otherwise to take part in the proceedings at the meeting (including the right to vote).
(3) If the motion is carried 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 Sarpanch or the Upa-Sarpanch, as the case may be, shall cease to hold office after seven days from the date on which the motion was carried unless he has resigned earlier or has disputed the validity of the motion so carried as provided in sub-section (3-B); and thereupon the office held by such Sarpanch or Upa-Sarpanch shall be deemed to be vacant.
(Provided that, where the office of the Sarpanch ::: Downloaded on - 09/06/2013 17:12:27 ::: 15 being reserved for a woman, is held by a woman Sarpanch, such motion of no-confidence shall be carried only by a majority of not less than 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) (Provided further that) no such motion of no confidence shall be brought within a period of six months from the date of election of Sarpanch or Upa-Sarpanch.
(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 panchyat, 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.
(3-B) If the Sarpanch or, as the case may be, the Upa-Sarpanch desires to dispute the validity of the motion carried under sub-section (3), he shall, within seven days from the date on which such motion was carried, refer the dispute to the Collector who shall decide it, as far as possible, within fifteen days from the date on which it was received by him; and any such decision shall, subject to an appeal under sub-section (3-C), be final.
(3-C) Any person aggrieved by the decision of the Collector may, within seven days from the date of receipt of such decision, appeal to the Commissioner who shall decide the appeal, as far as possible, within fifteen days from the date on which the appeal is received by him, and any such decision shall be final.
::: Downloaded on - 09/06/2013 17:12:27 ::: 16(3-D) Where on a reference made to him under sub-section (3-B), the Collector upholds the validity of the motion carried under sub-sectio (3) and no appeal is made by the Sarpanch or the Upa-Sarpanch under sub-section (3-C) within the limitation period specified in that sub-section, or where an appeal is made under sub-section (3-C) but it is rejected by the Commissioner, the Sarpanch or, as the case may be, the Upa-
Sarpanch shall cease to hold office, in the former case, immediately after the expiry of the said limitation period and, in the later case, immediately after the rejection of the appeal, and thereupon the office held by such Sarpanch or Upa-Sarpanch shall be deemed to be vacant).
(4) In cases where the offices of both the Sarpanch and Upa-Sarpanch become vacant simultaneously, the District Village Panchayat Officer or such other officer as he may authorise in this behalf shall, pending the election of the Sarpanch exercise all the powers and perform all the functions and duties of the Sarpanch but shall not have the right to vote in any meetings of the panchayat.
11. Perusal of the above provisions shows that a requisition to convene a special meeting of the village panchayat for considering a motion of no confidence against Sarpanch or Up-sarpanch is to be given to the Tahsildar by not less than 1/3rd of the total number of members who are for the time being entitled to sit and vote at any meeting of the ::: Downloaded on - 09/06/2013 17:12:27 ::: 17 panchayat. On receiving such requisition the Tahsildar is under a duty to convene a special meeting of the panchayat for the purpose which is mentioned in the requisition within seven days from the date of receipt of the requisition. That meeting is to be presided over by the Tahsildar. If at that meeting the motion is carried by majority of not less than 2/3rd of the total number of members who are for the time being entitled to sit and vote, the Sarpanch or Up-sarpanch ceases to hold the office. The provision also provides remedies to such a Sarpanch or Up-Sarpanch to challenge the passing of the motion before the Collector and thereafter to the Commissioner. Perusal of the provisions also shows that in Section 35 itself provision has been made in relation to the some of the procedural aspect to be followed in the special meeting of the panchayat. It is provided that meeting will be presided over by the Tahsildar. It is also provided that Sarpanch or Up-Sarpanch against whom the motion is to be moved shall be entitled to attend and participate in that meeting and he will have a right to speak at that meeting.
However, there is no provision made in the Section itself in ::: Downloaded on - 09/06/2013 17:12:27 ::: 18 relation to other procedural aspect of the special meeting.
Section 36 of the Act reads as under:
36. Time and place of sitting of panchayat and procedure at meetings.- The time and place of sitting, and the procedure at a meeting, of the panchayat shall be such as may be prescribed:
(Provided that, if the Sarpanch, or in his absence the Upa-Sarpanch, fails without sufficient cause, to convene the meetings of the panchayat in any financial year according to the rules prescribed in that behalf, he shall be disqualified for continuing as Sarpanch or, as the case may be, Upa-
Sarpanch or for being chosen as such for the remainder of the term of office of the members of the Panchayat. The decision of the Collector on the question whether or not there was sufficient cause shall be final.
12. Thus, Section 36 lays down that time and place of sitting and procedure at the meeting of the panchayat is to be laid down by Rules. Section 176 contains the rule making powers on the State Government. Section 176(2)(vii) confers power on the State Government to frame Rules, prescribing time and place of sitting and the procedure at a meeting of the panchayat. Section 176(2)(vi) confers rule making power of the State Government "prescribing the form of notice under sub-section (1) of Section 35." The State Government in exercise of its rule making powers under Section 176(2)(vi) ::: Downloaded on - 09/06/2013 17:12:27 ::: 19 has framed the Bombay Village Panchayat Sarpanch and Up-
Sarpanch (No confidence Motion) Rules, 1975. It is Rule 2 of these Rules is relevant. It reads as under:
2(1)The members of a panchayat who desire to more a motion of no confidence against the Sarpanch or the Upa-Sarpanch shall given notice thereof in the form appended hereto to the thasildar of the taluka in which such panchayat is functioning. Where the members desire to move the motion of no-confidence against the Sarpanch as well as the Upa-Sarpanch, they shall give two separate notices.
(2) The notice under sub-rule (1) shall be accompanied by seven additional copies thereof, and the Tahsildar shall send one copy to the Sarpanch, one to the Upa-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.
(3) The Tahsildar shall, immediately on receipt of notice under sub-rule (1), satisfy himself that the notice has b een given by not less than one-
third of the total number of members (other than associate membe rs) who are for the time being entitled to sit and vote at any meeting of the panchayat and the n convene a special meeting for the purpose within seven days from the date of receipt of such notice.
13. Sub-Rule 1 of Rule 2 of the No Confidence Motion Rules provides that the notice to be given under Sub-section ::: Downloaded on - 09/06/2013 17:12:27 ::: 20 1 of Section 35 by the members of the village panchayat who propose to move a motion of no confidence against Sarpanch or Up-Sarpanch shall be given in the prescribed form. The form which is prescribed is relevant for our purpose. It reads as under:
FORM OF NOTICE OF MOTION OF NO-CONFIDENCE To The Tahsildar, ..................... Place............
Date.............
Sir, We, the undersigned members of the village panchayat of .................give you notice that we propose to move a motion of no-confidence against the Sarpanch Upa-
Sarpanch.................in the meeting of the panchayat for the following reasons:-
..................................................................................................
.................................................................................................. .................................................................................................. ..................................................................................................
We declare that the facts stated above are true to the best of our information and knowledge.(emphasis supplied)
14. Perusal of the Form quoted above shows that when the members give notice to the Tahsildar they inform ::: Downloaded on - 09/06/2013 17:12:27 ::: 21 the Tahsildar of their intention to move a motion of no confidence against the Sarpanch or Up-Sarpanch in the meeting of the panchayat. It is , thus, clear that the motion is not moved by submitting the requisition, but the purpose of submitting the requisition to the Tahsildar is to call upon him to convene a special meeting of the village panchayat so that in that meeting a motion of no confidence can be moved against the Sarpanch or Up-Sarpanch.
15. In exercise of its powers under Section 176(2)(vii) of the Act the State Government has framed the Bombay Village Panchayat (Meeting) Rules 1959. Perusal of these Rules shows that it deals with the procedural aspect of holding a meeting of the panchayat. Rule 4 lays down that three clear days notice is to be issued for calling an ordinary meeting and such notice must also indicate the business that is to be transacted at that meeting. Rule 5 deals with calling of a special meeting. It reads as under:
5(1) The Sarpanch or in his absence the Upa- Sarpanch, may, on his own motion, call a special meeting of the panchayat at any time or on the written requisition of not less than half the number ::: Downloaded on - 09/06/2013 17:12:27 ::: 22 of the members or of the (Standing Committee, Panchayat Samiti, or the Chief Executive Officer, or of any officer authorised in this behalf by the standing committee, or Panchayat Samiti or Chief Executive Officer) by a general or special order, shall call such special meeting within eight days from the date of the receipt of such requisition.
(2) The Secretary shall, at least one clear day before the date fixed for a special meeting, send or cause to be sent to all the memebrs intimation of the date, time and place of such special meeting and of the business to be transacted thereat.
16. Thus, a special meeting of a village panchayat can be called by the Sarpanch or in his absence by Up-
Sarpanch and special meeting can also be called on receiving a written requisition of not less than half the number of the members. A special meeting can be called also on receiving a requisition for that purpose from the Standing Committee, panchayat samiti or the Chief Executive Officer and that meeting is to be called within a period of eight days from the date of receipt of the requisition. For a special meeting at least one clear day notice to the members is necessary. Sub-Rule 2 of Rule 6 lays down that every meeting of the panchayat shall be held in the office of the village panchayat or the village chavdi. Rule 7 deals with ::: Downloaded on - 09/06/2013 17:12:27 ::: 23 the manner of serving notice of the meeting. Rule 9 lays down what is the quorum of the meeting of the village panchayat. Rule 10 deals with the procedure to be followed when requisite quorum is not present at the meeting. Rule 17 to which reference has been made reads as under:
(17)(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.
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 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.
::: Downloaded on - 09/06/2013 17:12:27 ::: 24Perusal 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-
section 1 & 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 ::: Downloaded on - 09/06/2013 17:12:27 ::: 25 manner in which the Sarpanch or Up-Sarpanch can 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.
::: Downloaded on - 09/06/2013 17:12:27 ::: 26However, 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 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 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 ::: Downloaded on - 09/06/2013 17:12:27 ::: 27 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 ::: Downloaded on - 09/06/2013 17:12:27 ::: 28 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.
.
Perusal of the provision of sub-section 3A of Section 35 shows that provision makes difference between moving of a motion and carrying of a motion by requisite majoirity. 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 panchyat, 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 ::: Downloaded on - 09/06/2013 17:12:27 ::: 29 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, that question as to whether the provisions of Rule 17 are mandatory or directory has not been referred to us. In ::: Downloaded on - 09/06/2013 17:12:27 ::: 30 our opinion, therefore, the first question will have to be answered in the affirmative by holding that the provisions of the Meeting Rules generally and provisions of Rule 17 in particular apply to a meeting convened under Section 35.
19. So far as second question ("Whether in proceedings under Sub-Section 3-B of section 35 of the Bombay Village Panchayats Act, 1958 a direction can lawfully be issued for convening a fresh meeting after expiry of the period of seven days provided under sub-section 2 of section 35 of the said Act on the basis of a motion of no confidence which is held to be illegal?".) is concerned, the necessary facts and the reasons for making the reference have been narrated by the learned single Judge(Justice A.S.Oka ) in his order thus.
"(i)The petitioner in Writ Petition No.7854 of 2010 was elected as a Sarpanh of a Village Panchyat constituted under the Bombay Village Panchayats Act, 1958 [hereinafter referred to as 'the said Act'].
(ii) A requisition was submitted in accordance with the ::: Downloaded on - 09/06/2013 17:12:27 ::: 31 Bombay Village Panchayats Sarpanch and Up-sarpanch (No Confidence Motion) Rules, 1975 [hereinafter referred to as 'No confidence Motion Rules'] for moving a motion of no confidence against the Sarpanch.
(iii) A meeting was convened of the village panchayat on 2nd September, 2009 at 11.00 in the morning in the office of the Village Panchayat. The Tahasildar of the concerned taluka presided over the meeting. The no confidence motion was passed against the petitioner. It is recorded that eleven members voted against the petitioner and only one member voted in favour of the petitioner.
(iv) The petitioner filed a dispute in accordance with sub-
section 3-B of section 35 of the said Act before the Collector for challenging the motion of no confidence. The Collector dismissed the disputes. An appeal was preferred by the petitioner before the learned Additional Commissioner. The appeal was dismissed. Being aggrieved by the said orders, the petitioner filed a Writ Petition no.10457 of 2009. By judgment and order dated 6th May, 2010, this Court quashed ::: Downloaded on - 09/06/2013 17:12:27 ::: 32 and set aside the resolution dated 2nd September, 2009,and also the orders passed by the Collector and the Additional Commissioner. The operative part of the order passed by this Court reads thus:
"42.Respondent No.17 Tahsildar, Pali Sudhagad is directed to summon the members who were preset at the meeting dated 2 nd September 2009 by appropriate notice to consider 'no confidence motion', notice whereof been received by him on 28th August 2009. Such meeting shall be held on 11th June, 2010 at 11.00 a.m. (so as to leave sufficient time for the aggrieved parties to question this judgment). The Tahsildar shall follow the procedure in Rule 17 to 27 of the Meeting Rules and then decide the fate of the resolution which may be moved at such meeting. By way of abundant caution, it is clarified that the Tahsildar shall first invite the members who had given notice dated 28th August, 2009 to move and second the resolution. If the resolution is not moved or seconded, there would be no question of any further proceeding. If it is so moved and seconded, the Tahsildar shall proceed to permit discussion at the meeting as per Rules, giving opportunity to all members,including the petitioner to put forth what they would like to say and shall thereafter put the resolution to vote.
Rule is made absolute in the above terms."
v) This court held that the resolution was illegal,in as much as the petitioner was not heard and that no compliance was made in the requirements of the Rules 17 to 26 of the ::: Downloaded on - 09/06/2013 17:12:27 ::: 33 Bombay Village Panchayats (Meetings) Rules, 1959 [hereinafter referred to as the 'Meetings Rules'].
vii) It appears that in terms of the directions issued by this Court a meeting was convened on 11th June, 2010 and a motion of no confidence was passed against the petitioner.
viii) Again a dispute was filed under sub section(3-B) of section 35 of the said Act by the Sarpanch. The dispute application was rejected by the Collector. Being aggrieved by the said order, the Sarpanch preferred an appeal before the Additional Commissioner. By judgment and order dated 27th September, 2010, the appeal was allowed and the order of the Collector was set aside. The learned Additional Commissioner held that this Court has directed the Tahsildar to issue notices of the meeting held on 11th June, 2010 to all the members who have signed a motion of no confidence.
The learned Additional Commissioner observed that Tahsildar committed an error by sending notices of the meeting dated 11th June, 2010 only to twelve members who were present on 2nd September, 2009. Therefore, the learned Additional ::: Downloaded on - 09/06/2013 17:12:27 ::: 34 Commissioner directed the Tahsildar to hold a meeting on 7th October, 2010 after issuing notices to all members who are the signatories to the motion of no confidence. The petitioner in Writ Petition No.7854 of 2010 who is the Sarpanch had challenged the directions issued by the learned Additional Commissioner. The Writ Petition No.7899 of 2010 is filed by the petitioners who are the members of the Village Panchayat who were signatories to the motion of no confidence. The challenge in one of the petitions is on the ground that the order of this Court has been misinterpreted by the Additional Commissioner and in fact the Tahsildar was right in sending notice of the new meeting only to the twelve members who were present on 2nd September, 2009.
viii) The learned counsel appearing for the petitioner in Writ Petition No.7854 of 2010 invited the attention of the Court to section 35 of the said Act. He submitted that sub section 3-A of section 35 provides that if no confidence motion is not carried in the special meeting, no fresh motion shall be moved against the Sarpanch within a period of one ::: Downloaded on - 09/06/2013 17:12:27 ::: 35 year from the date of such special meeting. He submitted that this Court in earlier Writ Petition has held that a resolution passed on 2nd September, 2009 is illegal. He submitted that as a resolution was not carried, no direction could have been issued to hold a fresh meeting on the basis of the same motion as such direction will defeat mandatory provisions of sub-sections 2 and 3-A of section 35. He submitted that within seven days of receipt of motion of no confidence, the Tahsildar is required to convene a special meeting for considering the motion. He relied upon a decision of this court in the case of Mandabai Balnath Rohom Vs. Ashok Fakira Chandar (2002) MHLJ 1916. He submitted that the said decision holds that not only that Tahsildar is required to issue notice convening the meeting within a period of seven days but also to convene the meeting itself within seven days to deal with the matter pertaining to no confidence motion. He submitted that the direction to hold a new meeting on the basis of the same notice of no confidence motion cannot be issued either by this Court or by the Authorities under the said Act as meeting on the basis of motion of no confidence has to ::: Downloaded on - 09/06/2013 17:12:27 ::: 36 be convened within a period of seven days from the date of motion. He submitted that in any event ,the authorities under the said Act can only decide the issue regarding the validity of the motion and therefore a direction to hold a fresh meeting cannot be issued. He submitted that there is a conflict of views between different Division Benches of this Court on the question whether the Meetings Rules will apply to a meeting specially convened to consider the motion of no confidence.
He submitted that order of this Court proceeds on the footing that Meetings Rules will apply to a such meeting.
ix) The learned counsel appearing for the petitioners in Writ Petition No.7899 of 2010 submitted that on plain reading of the judgment of this Court in Writ Petition no.10457 of 2009, notice of the fresh meeting was required to be issued only to those members who attended the earlier meeting held on 2nd September 2009. He submitted that the issue whether a fresh meeting can be ordered to be convened after lapse of seven days has already been decided in the earlier writ petition against the petitioners. He submitted that the ::: Downloaded on - 09/06/2013 17:12:27 ::: 37 finding of this Court is that the resolution passed on 2nd September,2009 is illegal as the Sarpanch was not heard and that compliance was not made with the requirements of the Meetings Rules, in as much as, the motion was not moved and seconded in the meeting. He submitted that sub-section 3-A of section 35 will apply only to a case where motion could not be carried with the requisite majority. He has placed reliance on the decision of the full bench in the case of Chaitram Dagdu Sonavane Vs. Malegaon Panchayat Samiti [AIR 1966 Bombay 1]. He has also placed reliance on the decision of the Apex Court in the case of Ramesh Vs. Sheshrao & Ors. [AIR 1999 Supreme Court P.1607]. He submitted that in view of the said decision, bar of sub section 3-A of section 35 will not apply.
x) I have given careful consideration to the submissions. The decision of the full bench in the case of Chaitram (Supra) arises out of a motion of no confidence under the Maharashtra Zilla Parishads and Panchayat Samities Act, 1961. The said decision was considered by the learned Single Judge in the case of Mandabai(Supra) arising ::: Downloaded on - 09/06/2013 17:12:27 ::: 38 under the said Act. The learned Single Judge framed a point for determination in paragraph 3 of the said judgment which reads thus:
"3.THE point which arises for consideration in this petitionis whether under sub-section (2) of section 35 of the Bombay Village Panchayats Act, 1958 (hereinafter called as "the said Act".). It is necessary to hold the meeting of the Panchayat for considering the motion of no confidence of which the notice has been received by the Tahsildar under sub -section (1) of section 35 of the said Act within seven days of the receipt of such notice or whether it only requires that a notice calling meeting of the panchayat should be issued within seven days of the receipt of the notice of no confidence motion by the Tahsildar?".
xi) After considering the aforesaid decision of the full bench, this Court distinguished the provisions of the said Act from the provisions of the Maharashtra Zilla Parishads and Panchayat Samities Act, 1961 which were considered by the full bench. The learned Judge answered the issue framed by him as under:-
"(15)THE point for consideration, therefore, has to be answered as under:
"section 35(2) of the said Act requires that the Tahsildar shall not only issue the notice ::: Downloaded on - 09/06/2013 17:12:27 ::: 39 convening the meeting within seven days but also convene the meeting itself within seven days to deal with the matter pertaining to the No Confidence Motion in terms of notice received by him under section 35(1) of the said Act."
xii) REVERTING to the facts of the case in hand.
Undisputedly, the Tahsildar had not convened the meeting within seven days from receipt of the notice under section 35(1) of the said Act. Being so, no fault can be found with the impugned order passed by the Additional Commissioner on 3rd October, 2000 and, therefore, the said judgment and order does not deserve to be interfered with. Petition is, therefore, dismissed. Rule is discharged with no order as to costs.
Petition dismissed."
Therefore, the law as it stands is that the meeting has to be actually held within a period of seven days from the date on which the requisition under sub-section 1 of section 35 of the said Act is received by the Tahsildar.
xiii) The learned counsel appearing for the petitioners in support of Writ Petition No.7899 of 2010 relied upon a decision of the Apex Court in the case of Ramesh (Supra).
::: Downloaded on - 09/06/2013 17:12:27 ::: 40The Apex Court considered sub-section 3A of section 35 which puts an embargo on the right of the members to bring a fresh motion of no confidence for a period of one year from the date on which earlier motion of no confidence is not carried. In the case before the Apex Court , earlier motion of no confidence was held as invalid by the Divisional Commissioner on the ground that there was no proper notice.
Even before expiry of a period of one year from the date on which earlier motion was passed, a fresh motion of no confidence was moved which was carried. The challenge in the matter before the Apex Court was to subsequent motion of no confidence on the ground of bar created by sub section3-A. In paragraphs 5 and 6 of the said decision the Apex Court held thus:-
"5.The significant words in the above provisions are "if the motion is not moved or is not carried" then no such fresh motion shall be moved .....within a period of one year from the date of rejection of the motion. The question is whether the first motion which ended in the manner indicated above can be treated as a motion not moved or not carried by the requisite majority. In our opinion the first motion does not fall in this category. The first motion which was passed on 8.3.1995, was carried by the requisite majority but ::: Downloaded on - 09/06/2013 17:12:27 ::: 41 it became ineffective because the Commissioner on appeal by the Sarpanch held the Motion of No Confidence to be invalid for want of the requisition notice of holding the special meeting on 8.3.1995. The Bar contained in sub -section (3A)of section 35 of the Act does not cover such a situation.
6.The provision clearly is in respect of a motion which though valid, is not carried by the requisite majority of members because of it not being moved or being passed by the requisite majority. No such defect was found in the first motion in the present case which was carried by the requisite majority and not rejected in the meeting. The object of the provision clearly is to prevent frivolous No confidence Motions repeatedly within one year, if the earlier one has not been even moved or has been defeated because of the want of the requisite majority for passing the same. In the present case, the first motion, was not of the kind which attracted sub section(3A)of section 35. Accordingly, there was no ground for the Commissioner to allow the appeal since sub section(3A)of section 35 was not available in the present case."
xiv) The issue arising in this petition is different. This is not a case where after the first motion of no confidence was declared as invalid, a second motion was moved within a period of one year from the date of earlier motion of no confidence. In the present case if such fresh motion would have been moved, bar under sub section 3A may not have ::: Downloaded on - 09/06/2013 17:12:27 ::: 42 applied. The reason is that the second meeting would be lawful being convened within seven days in accordance with sub-section 2 of section 35. In the present case the challenge by the Sarpanch is to the direction of the Appellate Authority to convene a fresh meeting on 7th October, 2010 on the basis of a requisition served on 28th August, 2009. The law laid down by this Court in the case of Mandabai (Supra) is that the meeting has to be actually held within a period of seven days from the date on which the requisition under sub section 1 of section 35 is received by the Tahsildar. A Division Bench of this Court in the case of Ganesh Raghunath Samel Vs. State of Maharashtra & Others [(2002)(4) Bombay Cases Reporter P.425] upheld that the view taken in the case of Mandabai (Supra) by holding that the meeting has to be held within a period of seven days.
xv) The question is whether a direction can be issued directing that a fresh meeting shall be convened long after expiry of seven days from the date on which requisition is received by the Tahsildar. Prima facie,it appears to me that such a direction will be directly contrary to mandate of sub ::: Downloaded on - 09/06/2013 17:12:27 ::: 43
-section 2 of section 35 of the said Act and the binding precedent of Division Bench of this Court in the case of Ganesh Raghunath Samel which affirmed the decision of this Court in the case of Mandabai (Supra).The attention of this Court was not invited to the case of Ganesh Raghunath Samel while deciding the Writ Petition No.10457 of 2009.
xvi) There is another aspect of the matter. In a dispute under sub section 3-B of section 35, the Collector is conferred with the jurisdiction to decide the dispute about the validity of the no confidence motion passed. Same is the power of the Divisional Commissioner/Appellate Authority.
The power is confined only to decide the question whether no confidence motion is valid. If no confidence motion is held to be invalid, in view of the decision of the Apext Court, in a given case, bar of sub section 3A may not be attracted provided a fresh meeting is convened within seven days on the basis of a fresh requisition. Prima facie, it appears to me that neither the Collector nor the Divisional Commissioner is conferred with the jurisdiction to direct that a fresh meeting be convened on the basis of the same motion of no confidence ::: Downloaded on - 09/06/2013 17:12:27 ::: 44 after finding that the proceedings of the earlier meeting which considered the same motion were illegal or invalid. If such a direction is issued, prima facie, the said direction will be directly contrary inflict with the mandate of provision of sub section 2 of section 35. In my view, this issue can be advantageously heard by a larger bench of this Court."
20. The question , thus, that arises for consideration is "whether the Collector who is hearing the Reference under Section 3-B has the power to direct the Tahsildar to convene a fresh meeting of the village panchayat for the same purpose after finding that the motion of no confidence was not validly passed?"
21. For that purpose the provisions of sub-section 3-B to Section 3-D of Section 35 quoted above are relevant. It is clear from the scheme of Section 35 that if the presiding authority at the special meeting of the village panchayat convened for considering the motion of no confidence against Sarpanch or Up-Sarpanch declares that the motion moved ::: Downloaded on - 09/06/2013 17:12:27 ::: 45 against the Sarpanch or Up-Sarpanch is carried, then the Sarpanch or Up-Sarpanch concerned have an option of referring the dispute within seven days to the Collector and if the reference is made within a period of seven days then the Sarpanch or Up-Sarpanch concerned continues in the office, in other words, passing of the motion of no confidence in the meeting does not take effect. The power of the Collector to whom the reference is made is to decide the dispute referred to him. The dispute before the Collector would be "whether the motion of no confidence was validly passed or not?" The consequence of his decision is provided in sub-section 3-D of Section 35. If he declares that the motion was validly carried, then the Sarpanch or Up-Sarpanch concerned ceases to hold office. If he declares that such a motion was not validly carried, then the Sarpanch or Up-Sarpanch continues to hold the office. There is no power conferred by Section 35 on the Collector who hears the dispute referred to him by Sarpanch or Up-Sarpanch to issue any direction to the Tahsildar for convening a fresh special meeting on the basis of the same requisition. The power of the Collector is confined to making a ::: Downloaded on - 09/06/2013 17:12:27 ::: 46 declaration whether the motion is validly carried or not. In case the Collector decides that the motion is not validly carried, the Sarpanch or Up-Sarpanch concerned continues in the office. In that situation, it is for the Tahsildar to consider whether he is competent to convene a fresh meeting on the basis of the same requisition or not, and it is at that juncture it is for the Tahsildar to consider whether he can call a meeting after expiry of a period of seven days? Whether the requisition received by him is extinguished or not? But the Collector exercising his powers under Section 3-B does not have the power to issue any direction to the Tahsildar in relation to convening of a fresh meeting. If the Collector does not have that power, the appellate authority, which hears the appeal against the order of the Collector, also will not have that power. Consequently, this court which hears the petition filed under Articles 226 or 227 of the Constitution against the order made by the Collector and/or Commissioner under Section 35 of the Act will also not be in a position to issue directions to the Tahsildar to convene a fresh meeting on the basis of the same requisition. Because the power to decide ::: Downloaded on - 09/06/2013 17:12:27 ::: 47 whether to convene the meeting or not to convene the meeting by the provisions of Section 35 is vested only in the Tahsildar. In a given case, if the Collector finds that the motion was not validly carried and if according to members who had given the requisition, the Tahsildar should call for a fresh meeting on the basis of the same requisition, it is for the members to move the Tahsildar and then it is for the Tahsildar to consider the question and take appropriate decision. If the decision of the Tahsildar is challenged before this court in a petition, in that petition probably this court may be in a position to issue an appropriate directions to the Tahsildar, but the direction to the Tahsildar for convening fresh meeting on the basis of same requisition cannot be issued by this court when it is hearing the petition against the order of the Collector and/or Commissioner passed under Section 35 of the Act. In this view of the matter, therefore, in these proceedings it is not necessary for us to consider as to how the Tahsildar has to exercise his power of convening a special meeting. Because according to us in a proceeding under sub-section 3-B of Section 35 no directions can be ::: Downloaded on - 09/06/2013 17:12:27 ::: 48 issued for convening a fresh meeting of the village panchayat on the basis of the same requisition by the Collector who hears the dispute referred to him in relation to the validity or otherwise of the motion of no confidence. The question referred to us is accordingly so answered.
22. As the questions have been answered, the office is directed to place the matter before the learned single Judge for further orders.
(D.K.DESHMUKH, J.) (ANOOP V. MOHTA,J.) (RANJIT MORE, J.) ::: Downloaded on - 09/06/2013 17:12:27 :::