Bombay High Court
Sahebrao Khandu Patil And Ors. vs Joharabai Latif Patel And Ors. on 18 April, 2002
Equivalent citations: 2003(1)BOMCR172
Author: D.G. Karnik
Bench: D.G. Karnik
JUDGMENT D.G. Karnik, J.
1. Rule, made returnable forthwith by consent of the parties.
2. The respondent No. 1 was elected as 'Sarpanch' of the Lohgad Gram Panchayat, Taluka & District Dhule. The Gram Panchayat consists of 7 members. 5 out of the 7 members, gave a notice to the Tahsildar of proposed motion of no confidence against the respondent No. 1. In accordance with the notice, the Tahsildar convened the special meeting of the Gram Panchayat for considering the motion of no confidence on 11th September, 2001. In the meeting held on 11th September, 2001, the motion of no confidence was passed by majority of 5 versus 2. Thus, the motion was passed by a requisite majority of not less than 2/3rd of the total number of members entitled to sit and vote at the meeting. Being aggrieved by the passing of the said motion; the respondent No. 1 filed a dispute/appeal before the Collector under sub-section (3-B) of section 35 of the Bombay Village Panchayats Act, 1958 (for short "the Act"). The dispute/appeal was heard by the Additional Collector instead of Collector, who, by the judgment and order dated 3rd November, 2001, dismissed it. The respondent No. 1 filed a further appeal to the Commissioner under sub-section (3-C) of section 35 of the Act. It appears that the appeal was assigned by the Commissioner to the Additional Commissioner, who, by his order dated 31-12-2001 allowed the appeal. This order of the Additional Commissioner is challenged by the five petitioner, who originally moved the motion of no confidence, by filing of the present writ petition.
3. Before the Additional Collector as well as before the Additional Commissioner, it was contended by the respondent No. 1, that the meeting dated 11th September, 2001, in which the motion of no confidence was considered and passed, was presided over by the Naib Tahsildar instead of Tahsildar and, therefore, the meeting was improper. This ground found favour with the Additional Commissioner, who held that the Naib Tahsildar had no authority to preside over the meeting which had to be presided over by the Tahsildar. It was brought to the notice of the Additional Commissioner that as per the Government Circular dated 4th July, 1998, the Naib Tahsildar could preside over the meeting in the event of certain contingencies such as, Tahsildar being on leave on that day or Tahsildar being unable to attend the meeting on account of law and order problem, etc. The Additional Commissioner had before him the order dated 10th September, 2001, passed by the Tahsildar appointing and authorising the Naib Tahsildar to preside over the meeting instead of him. The learned Additional Commissioner, however, held that the Tahsildar had not mentioned in the said order either that he was on leave or that he was involved in the maintenance of law and order and, therefore, the Tahsildar had violated the provisions of section 35(2) of the Act, which required him to preside over the meeting. The Additional Commissioner also held that in the proceedings book, it was mentioned that the motion was passed by a majority, whereas the Act required the motion to be passed by the 2/3rd majority. In this view of the matter, the Additional Commissioner allowed the appeal.
4. The second ground, on which the Additional Commissioner, allowed the appeal, can be considered first. Out of the seven members, five had voted in favour of the motion and only two against. Thus, the motion was passed by a majority of 5 versus, 2, which is more than requisite 2/3rd majority. This fact of passing of the motion by majority of 5 versus 2 was not disputed by the learned Counsel for the respondent No. 1. Therefore, mere error of writing in the proceedings book that the motion was passed by a majority would not invalidate the motion.
5. The learned Counsel for the respondent No. 1 strenuously contended before me that under section 35(2) of the Act, the meeting had to be presided over only by the Tahsildar and not by the Naib Tahsildar. It was contended that if the meeting was presided over by the Naib Tahsildar, it was incurably illegal, the result of which was to invalidate the entire meeting and the motion of no confidence passed in it.
6. The Bombay Village Panchayats Act does not define the words "Tahsildar" or "Naib Tahsildar". The Tahsildar and the Naib Tahsildar are the revenue officers, who are appointed under the provisions of Maharashtra Land Revenue Code, 1966 (for short "the Code"). Unfortunately, the Code also does not specifically define the words "Tahsildar" or "Naib Tahsildar". Therefore, reference would have to be made to the body of the Code to find out their meaning. Section 7 of the Code confers a power on the Government to appoint the Collector, the Tahsildar and other revenue officers. Under sub-section (2) of section 7, the State Government may appoint one or more Naib Tahsildars to assist the Tahsildar. Clause (b) of section 10 of the Code permits the Naib Tahsildar to perform the duties of Tahsildar, where the Tahsildar is disabled to perform his duties or for any reasons vacates his office or leaves his jurisdiction or dies. Under sub-section (6) of section 13 of the Code, the Tahsildar may employ any of his subordinates to perform any portion of his ministerial duties. It, thus, cannot be doubted that under the Code, the Tahsildar is entitled to delegate his powers to the Naib Tahsildar, when the Tahsildar is unable to perform his duties or under certain other contingencies. The acts performed by the Naib Tahsildar would have the same effect as the acts performed by the Tahsildar. The State Government has also issued a circular dated 4th July, 1998, specifically in respect of the powers to be exercised by the Tahsildar and/or his subordinates under section 35 of the Act. In paragraphs 14 and 15 of the said circular, it is specified that: "Ordinarily it is expected that the Tahsildar should preside over the meeting convened and there is no provision of delegation under section 35 of the Act. However, on several occasions, the Tahsildar is unable to attend the meeting, for example, when the Tahsildar is on leave. In such situations, the officer, who holds the charge of the Tahsildar, should hold the meeting. Similarly, if the Tahsildar is busy in tackling law and order problem, then the Naib Tahsildar should preside over the meeting in which motion of no confidence is considered. There is no provision in the Act for adjourning the meeting." Thus, the Naib Tahsildar exercises the powers of the Tahsildar by presiding over the meeting.
7. It was, however, contended by the learned Counsel for the respondent No. 1 that the Government Circular cannot confer a power of delegation on the Tahsildar. The learned Counsel for the respondent Nos. 1 & 2 contended that as the Act confers upon the Tahsildar a power to do a thing, then that thing must be done by the Tahsildar only and performance by any other officer is necessarily excluded. In my opinion, the Naib Tahsildar, when authorised, discharges the functions and exercises the powers of the Tahsildar. In such cases, the word "Tahsildar" would include "Naib Tahsildar".
8. In my considered opinion, the provision contained in sub-section (2) of section 35 of the Act which requires the Tahsildar to preside over the meeting is directory. Under section 35 of the Act, the meeting is required to be convened and held within a period of seven days of the receipt of notice of motion of no confidence. In a particular case, the Tahsildar may be on leave for more than seven days or though present and available in the seat may be involved in tackling the problems relating to law and order. The Tahsildar is also the Executive Magistrate of the Taluka and is entrusted with important duty of maintenance of law and order which certainly is of prime importance. In such a situation, should the motion of no confidence which is passed by the requisite majority fail only on a technical ground? In my opinion, not. Section 35 confers a duty, a public duty, on the Tahsildar to convene and hold the meeting within a period of seven days. The citizens, who also happen to be the elected members of the Gram Panchayat have no control over the Tahsildar, the manner in which the Tahsildar performs his duty. To hold as null and void the acts done by the Naib Tahsildar to whom the Tahsildar delegates the power, would cause serious inconvenience or injustice to the members of the Gram Panchayat and villagers whom they represent, who have no confidence in the Sarpanch. Several decades ago, the Privy Council in the case of Montreal Street Railway Company v. Normandin, reported in A.I.R. 1917 P.C. 142, held (at page 144 of the Report):
"When the provisions of a statute relate to the performance of a public duty and the case is such, that to hold null and void, acts done in neglect of this duty would work serious general inconvenience or injustice to persons, who have no control over those entrusted with the duty, and at the same time, would not promote the main object of the legislature, such provisions are to be held to be directory only, the neglect of them though punishable not affecting the validity of the acts done."
9. In the case of Dattatraya Moreshwar v. The State of Bombay and others, , the Apex Court observed thus:
"It is well-settled that generally speaking, the provisions of a statute creating public duties are directory and those conferring private rights are imperative. When the provisions of a statute relate to the performance of a pubic duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the legislature, it has been the practice of the courts to hold such provisions to be directory only, the neglect of them not affecting the validity of the acts done."
10. The principle is thus well-settled that ordinarily the statute conferring a duty on the Public Officers for the performance of which the citizen has no control, has to be held directory, especially when the citizen is likely to suffer harm of injustice on account of failure of the public officer to perform his duty. Assuming, therefore, that the Government Circular is not binding and there is no express power of delegation of the duty upon the Tahsildar to preside over the meeting, that duty is a public duty and the citizens have no power to compel the Tahsildar to perform the said public duty, and therefore, the provision that the Tahsildar should preside over the meeting must be held to be directory. When the Tahsildar delegates the power to his immediate deputy i.e. the Naib Tahsildar, there would be sufficient compliance of sub-section (2) of section 35 of the Act.
11. It cannot be doubted that in a democratic society, the will of the majority expressed through the elected representatives in the form of legislation or resolutions, is supreme. It is immaterial to analyse and debate for the reasons behind the will of the majority, which is of a paramount importance and must be respected. Once a motion of no confidence is passed by the requisite 2/3rd majority, the concerned person against whom the resolution is passed must honour the will of the majority and make way for election of his successor. Unless it is shown that while passing the motion of no confidence, there was a flagrant violation of any mandatory procedure of law, the resolution cannot be interfered with by the courts or by the Statutory Authorities adjudicating such disputes. The democratic principles as also the sense of self respect should have prevailed over the respondent No. 1 in not challenging the will of the majority, a 2/3rd majority, and she should have graciously submitted to the decision and walked out of the office of the Sarpanch.
12. Let me demonstrate how a technical view can cause injustice not only to the petitioner, but to the respondent No. 1 also. Under sub-section (3-B) of section 35 of the Act, the dispute has to be raised before the Collector and it has to be decided by the Collector. Under sub-section (3-C) of section 35 of the Act, the appeal has to be preferred to the Commissioner and it has to be decided by the Commissioner. Admittedly, in the present case, the dispute was heard and decided not by the Collector, but by the Additional Collector and the appeal was not heard and decided by the Commissioner, but by the Additional Commissioner. The Act does not confer a power of delegation by the Commissioner to the Additional Commissioner. If the term Tahsildar were not include the Naib Tahsildar, the Commissioner would also not include the Additional Commissioner, under the provisions of Bombay Village Panchayats Act. If so, the decision of the Additional Commissioner, setting aside the resolution of no confidence, would suffer from the same infirmity of the "act" (of deciding the appeal) being performed by an officer who is not specifically mentioned in the section.
13. Petition is accordingly allowed in terms of prayer Clause (A). Rule made absolute in above terms. No order as to costs.