Bombay High Court
Smt. Yamunabai Laxman Chavan And Ors. vs Smt. Sarubai Tukaram Jadhav And Ors. ... on 13 February, 2004
Equivalent citations: 2004(2)MHLJ1004, 2004 A I H C 2118, (2004) 2 MAH LJ 1004, (2004) 3 ALLMR 93 (BOM), 2004 BOM LR 3 429
Author: D.Y. Chandrachud
Bench: D.Y. Chandrachud
JUDGMENT D.Y. Chandrachud, J.
1. Rule, returnable forthwith. Learned Counsel for the Respondents waives service. By consent taken up for hearing and final disposal.
2. The Petitioners are elected members of the Gram Panchayat of Chimbli in the Taluka of Khed in the District of Pune. The First Respondent in Writ Petition No. 5114 of 2003 is the Sarpanch while the First Respondent in companion Writ Petition No. 5115 of 2003 is the Upa Sarpanch. On 25th February 2003, the Petitioners issued a requisition to the Tahsildar, Khed in their capacity as members of the Gram Panchayat proposing to move a motion of no-confidence against the Sarpanch and the Upa Sarpanch. The notice spelt out the reasons on the basis of which the requisitionists had decided to move the motion. Immediately thereafter on 25th February 2003, the Tahsildar addressed notices to all the members of the Gram Panchayat including the Sarpanch and the Upa Sarpanch recording that a requisition had been received from Shri Pandurang Vishnu Bankar and five other members of the Panchayat for moving a motion of no confidence against the Sarpanch and Upa Sarpanch. The Tahsildar intimated that he had convened a meeting on 4th March 2003 at 3 p.m., in the office of the Gram Panchayat is pursuance of the aforesaid notice, a meeting was held on the appointed day in which the Sarpanch and the Upa Sarpanch participated. A resolution of to confidence was passed by a majority of six members voting in favour thereof. Three members of the Gram Panchayat including the Sarpanch and the Upa Sarpanch voted against the resolution.
3. An appeal was thereafter filed by the Sarpanch and the Upa Sarpanch before the Collector under the provisions of Section 35(3B) of the Bombay Village Panchayats Act, 1958. The Collector allowed the appeal on the ground that though the Sarpanch and Upa Sarpanch had been furnished a notice by the Tahsildar of the fact that a requisition had been received for moving a motion of no confidence, in pursuance whereof a meeting was convened on 4th March 2003, a copy of the requisition itself had not been furnished which contained the reasons on the basis of which the requisitionists had sought to move the motion. The Collector accordingly set aside the resolution. An appeal was thereafter filed under Section 35(3C) before the Commissioner who has affirmed the decision of the Collector.
The question which arises in these proceedings tarns upon the construction of the provisions of Section 35 of the Act and the Rules which have been framed in exercise of the powers conferred by Section 176. The Rules in question air titled "The Bombay Village Panchayat Sarpanch and Upa Sarpanch (No Confidence Motion) Rules, 1975. Section 35 of the Act deals with a motion of no confidence and Sub-sections (1), (2) (3), (3A), (3B), (3C) and 3(D) provide thus:
"35. (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.
(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 light to speak or otherwise to take part in the proceedings at the meeting including the light to vote.
(3) if the motion is carried by a majority of not less than two thirds 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 uncles he has resigned earlier or has disputed the validity of the motion so carried as provided in Sub-section (3B), and thereupon the office held by such Sarpanch or Upa-Sarpanch shall be deemed to be vacant.
(3A) If the motion is not carried by a majority of not less than two-thirds 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 six months from the date of the rejection of the motion.
(3B) 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 (3C), be final.
(3C) 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.
(3D) When on a reference made to him under Sub-section (3B), the Collector upholds the validity of the motion carried under Sub-section (3) and no appeal is made by the Sarpanch or the Upa-Sarpanch under Sub-section (3C) within the limitation period specified in that sub-section, or where an appeal is made under Sub-section (3C) 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 latter 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. Section 176 of the Act confers a rule making power upon the State Government for carrying into effect the purposes of the Act. Clause (vi) of Sub-section (2) empowers the Government to frame rules prescribing the form of notice under Sub-section (1) of Section 35. Rule 2 of the Rules provides thus:
2. (1) The members of a panchayat who desire to move a motion of no confidence against the Sarpanch or the Upa-Sarpanch shall give notice thereof in the form appended hereto to the tahsildar 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 been given by not less than one-third 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."
5. The controversy in the present case turns on whether an omission to comply with the provisions of Sub-rule (2) of Rule 2 will vitiate the resolution passed in pursuance of the notice issued by the requisitionists. Counsel for the Petitioners has urged that there is a distinction in law between a motion of no confidence and a motion of censure. That has been accepted by the Supreme Court in its judgment in Babubhai Muljibhai Patel v. Nandlal Khodidas Barot, . The submission was that in the case of a motion of no confidence even if the form that is prescribed requires the ground for the motion to be mentioned, the resolution does not require any ground to be specified when the motion is carried. A motion of no confidence is not required to be based on a specific ground or charge unlike a motion of censure. This principle, it has been urged, has been followed in several judgments of the Division Bench of this Court. In the present case, it is urged that both the Sarpanch and Upa-Sarpanch participated in the meeting and in the debate upon the motion, and the motion was carried by a clear majority of 6 : 3 which meets the requirement of the Act. In the circumstances, the submission was that the omission of the Tahsildar to furnish a copy of the requisition moved by the requisitionists wilt not invalidate the motion particularly when the Sarpanch and the Upa-Sarpanch participated in the meeting and had made no written demand before the Tahsildar for being furnished with copies of the requisition. On the other hand, it is urged on behalf of the Respondents that the notice is required to be given as prescribed. This is specified in the Rules framed in pursuance of Section 176(2)(vi) of the Act. The submission was that the rules are a part of the Act The submission is that under Section 35(2), the Sarpanch or Upa-Sarpanch who is sought to be proceeded against has a right to speak and that right could not be effective unless the reasons for the motion of no confidence are furnished.
6. While considering the position in law it would be necessary at the outset to analyse the provision of Section 35. A motion of no confidence has to be moved by not less than one-third of the total number of members of the Gram Panchayat who are for the time being entitled to sit and vote in a meeting. Sub-section (1) of Section 35 stipulates that the motion can be moved after a notice is furnished to the Tahsildar as may be prescribed. To reiterate, therefore, what the Act mandates is that (i) the motion has to be moved by at least one-third of the total members of the panchayat entitled to sit and vote; and (ii) the motion may be moved after giving notice to the Tehsildar as prescribed. Therefore, what has to be prescribed by the rules what has in feet been prescribed by Sub-rule (1) of Rule 2 of the Rules is the form in which a notice has to be furnished by the requisitionists to the Tahsildar. The form that has been laid down requires the members of the Panchayat who have sought to move the motion to intimate the Tahsildar that they propose to move a motion of no confidence in a meeting of the Panchayat for reasons which arc spelt out therein. The facts which are stated therein have to be decided to be true to the 'best of information and knowledge' of the members moving the motion. Sub-section (2) of Section 35 then stipulates that within a period of seven days of the receipt of a notice under Sub-section (1), the Tahsildar must convene a special meeting of the Panchayat for considering the motion at the office of the Panchayat at a time to be appointed by him. The Sarpanch or Upa-Sarpanch against whom a motion of no confidence is moved has a right to speak or otherwise take part in the proceedings of the meeting including the right to vote. The motion has to be carried by a majority of not less than two-thirds of the total number of 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 upon the expiry of seven days unless in the meantime, the validity of the motion has been disputed under Sub-section (3B). Sub-section (3B) entitles the Sarpanch, or as the case may be, the Upa-Sarpanch to dispute the validity of the motion within a period of seven days before the Collector. The decision of the Collector is subject to a further appeal to the Commissioner.
7. The essence of a motion of no confidence is the expression by the elected members of a legislative body of a want of confidence or faith in the person or persons against whom the motion is moved. A motion of no confidence is not a removal for misconduct and it is not in the nature of disciplinary action adopted on account of charges of misbehaviour. A motion of non-confidence is what it states it is : an expression of a lack of confidence in the person. On the other hand, and in contradistinction to a motion of no confidence, the Act makes provisions for the removal of a member of the Gram Panchayat in Section 39. Section 39 contemplates the removal of any member of the panchayat, the Sarpanch or Upa-Sarpanch where he is guilty of (i) misconduct in the discharge of his duties; or (ii) of a disgraceful conduct; or (iii) neglect or incapacity to perform his duty; or (iv) where such person is persistently remiss in the discharge thereof. The provision for removal has to be distinguished from an expression of no confidence. A removal is a disciplinary measure and in view of the well settled position in law, a removal has to be on stated grounds after holding an enquiry. An enquiry is in fact, provided by Sub-section (1) of Section 39. On the other hand, a motion of no confidence is the ultimate expression by the members of a collective body, of the expression of a lack of faith in the person against whom that motion is moved.
8. The distinction between a motion of no confidence and a motion of censure was emphasised in the judgment of three Learned Judges of the Supreme Court in Babubhai Muljibhai Patel v. Nandlal Khodidas Barot . Mr. Justice H.R. Khanna speaking for the Bench observed thus:
"It is no doubt true that according to the form prescribed the ground for the motion of no confidence has to be mentioned in the notice of intention to move a motion of no confidence. It dos not, however, follow therefrom that the ground must also be specified when a motion of no confidence is actually passed against a President. It is pertinent in this context observe that their is a difference between a motion of no confidence and a censure motion. While it is necessary in the case of a censure motion to set out the ground or charge on which it is based, a motion of no confidence need not set out a ground or charge. A vote of censure presupposes that the persons censured have been guilty of some impropriety or lapse by act or omission and it is because of that lapse or impropriety that they are being censured. It may, therefore, become necessary to specify the impropriety or lapse while moving a vote of censure. No such consideration arises when a motion of no confidence is moved. Although a ground may be mentioned when passing a motion of no confidence, the existence of a ground is not a prerequisite of a motion of no confidence. There is no legal bar to the passing of a motion of no confidence against an authority in the absence of any charge of impropriety or lapse on the part of that authority. The essential connotation of a no-confidence motion is that the party against whom such motion is passed has ceased to enjoy the confidence of the requisite majority of members." (emphasis supplied).
Hence even if the form which is prescribed by the statute requires that the ground for misconduct be mentioned in the notice of intention to move the motion, it does not follow therefrom that the actual ground must be specified when the motion is passed.
9. Under the Bombay Village Panchayat Act, 1958, what is made mandatory is (i) The moving of a motion of no confidence by a stipulated number of members of the Gram Panchayat (one third); (ii) Those who move the motion must be entitled to sit and vote at a meeting of the panchayat; (iii) The furnishing of a notice of requisition to the Tahsildar as prescribed; (iv) The convening by the Tahsildar of a special meeting of the Panchayat within a period of seven days of the receipt of the notice at the time and place specified; (v) The entitlement of the Sarpanch and Upa-Sarpanch to speak or to otherwise participate in the proceedings and to vote upon the resolution; and (vi) The passing of the motion by a majority of not less than two-thirds of the total members of the panchayat entitled to sit and vote. The provisions which the legislature considered as being mandatory in order to constitute a valid motion of no confidence have been specified in Sub-sections (1), (2) and (3) of Section 35. While construing the rules what must be borne in mind is that Ac Act mandates the giving of a notice to the Tehsildar as prescribed. In construing as to which part of the rules is mandatory, regard must be had to the provisions of the parent legislation because the legislature has indicated in clear terms therein those provisions in respect of which a punctilious compliance is expected. The members of the Gram Panchayat who seek to move a motion of no confidence against the Sarpanch or Upa-Sarpanch or both are acquired to furnish a notice of their intention to do so to the Tahsildar. Before he convenes the meeting, the Tahsildar has to be satisfied that the motion has been moved by one-third of the total number of members entitled to sit and vote. The Act then provides that the Tahsildar most convene a meeting of the Panchayat for considering the motion within a period of seven days. When he convenes a special meeting of the Panchayat, the Tahsildar furnishes an intimation to the members of the Panchayat including the Sarpanch and Upa-Sarpanch of the convening of the meeting. Sub-section (2) of Section 35 requires the Tahsildar to convene a special meeting of the Panchayat for considering the motion and it is implicit therein that an intimation has to be furnished to all members of the Panchayat including the Sarpanch and Upa-Sarpanch who are sought to be proceeded against, in the event that the Sarpanch and the Upa-Sarpanch seek, in addition, copies of the actual requisition that has been issued by the members of the Panchayat, it is open to them to move the Tahsildar by submitting an application. However, it would be impermissible for the Court to hold that resolution which has been duly passed by a two thirds majority, upon a requisition moved by one third of the members of the panchayat eligible to sit and vote, at a meeting convened by the Tahsildar in accordance with law wilt stand invalidated merely because the Tahsildar has not sent a copy of the actual requisition to the Sarpanch or the Upa-Sarpanch as the case may be. Such a requirement cannot be read into the provisions of Section 35(2). The provisions contained in Rule 2(2) must be regarded as directory having regard to the true nature and purpose of a motion of no confidence. A motion of no confidence is not akin to disciplinary proceedings or a provision for removal for misconduct. A removal for misconduct is punitive. In such a case, a person who is sought to be proceeded against has to be furnished with a charge sheet and the removal must take place by following an enquiry that is consistent with the principles of natural justice. A motion of no confidence on the other hand, does not partake of a punitive character nor is it based on charges of misconduct which have to be proved. A motion of no confidence is the fundamental expression of the collective will of the members of a legislative body that they lack confidence in one of their own. The contention that the light to speak at the meeting given to a Sarpanch or Upa-Sarpanch requires that the requisition which has been moved be furnished to them cannot be acceded to. Should the Sarpanch or Upa-Sarpanch seek to have copies of the requisition, it is open to them to apply to the Tahsildar. However, where as in the present case the Sarpanch or Upa-Sarpanch chooses to participate in the meeting whereafter a resolution is duly passed by the requisite majority, it would stultify the democratic process if the Court were to nullify the resolution on the ground that a copy of the requisition was not furnished to the Sarpanch or Upa-Sarpanch.
10. There are two decisions of Division Benches of this Court, to which a reference mast be made in the course of this judgment. The first is a judgment of a Division Bench consisting of Paranjape and B.D. Bal, JJ. in Smt. Annapurnabai Ajabrao v. Smt. Annapurnabai Anandrao, 1967 Mh. LJ. 36 (NOC) and it expounds upon the essence of a motion of no confidence :
"Even (a)Gram Panchayat is essentially a democratic institution which must be run on democratic principles. When the majority of the members have clearly expressed that they do not desire the petitioner to be their leader and Sarpanch, the proper attitude of the petitioner as a person working for democracy would have been to tender her resignation straightway. At any rate, it does not behave of a democratic spirit to challenge the decision of the majority who unmistakably declared their want of confidence in their erstwhile leader. Democratic principles as also the sense of self-respect should have impelled the petitioner and persons situated in similar circumstances to gracefully submit to the decision of the majority and to walk out of the Gram Panchayat instead of raising frivolous contentions and forcing herself on the democratic institution which docs not want her to hold that position.
Even if the petition were to be allowed on such technical grounds, the majority who do not desire the petitioner to lead them would take immediate steps to pass a resolution of no-confidence which could not be challenged in any manner and to throw her out. We do not think that petitions of this kind should be used as instruments for forcing unwanted persons as heads of democratic institutions"
Subsequently, another Division Bench of this Court at the Aurangabad Bench in Nimba Rajaram Mall v. Collector, Jalgaon, held that though the grounds of no confidence are required to be incorporated in the notice by which a requisition of the motion is submitted before the Tahsildar a precise specification or the details of such reasons are not prerequisites of a motion of no confidence. In that case, the submission was that the requisitions which were furnished by the requisitionists in the notice which they had moved were vague and that would invalidate the resolution. The Division Bench rejected the submission and held thus:
"In a democratic society what is important is the Will of the majority and the elected representatives must honour the will of the majority. It is immaterial to analyse and debate on the reasons behind the will of the majority or the specific reasons for such will being expressed. The will of the majority is of paramount importance and it must be respected by all elected representatives responsible for the governance of such democratic institutions. As observed by the Apex Court in the case of Bababhai (supra), resolution cannot be faulted on the ground that there were no reasons or reasons were vague and lacked detailed specifications. Once the resolution of No Confidence motion is passed by a clear majority and in keeping with the requirements of the concerned statutory provisions, the person against whom such a resolution is passed, must honour the will of the majority and make way for the new election of his successor. Unless it is shown that while passing such a resolution of No Confidence Motion, there was flagrant violation of any of mandatory procedures laid down, such a resolution cannot be interfered with by the Court or statutory authorities adjudicating such disputes."
In Durgadas Ukhaji More v. Additional Commissioner, Nashik Division, Nashik, 2003(1) Mh. LJ. 420 a resolution of no confidence was moved against the Sarpanch. The motion was duly passed by the requisite majority. The Commissioner on appeal set aside the resolution holding that the verification clause in the notice submitted by the requisitionists had not been properly typed and that seven additional copies of the notice which were required to be submitted by the Tahsildar to various authorities had been sent to all but one authority. In that context, a Learned Single Judge of this Court noted the distinction between a motion of no confidence and a motion of censure. The Learned Judge held that what persons who wish to move a no confidence motion are required to do is to furnish a notice to the Tahsildar with seven additional copies thereof. Once they do so, their responsibility ends. The further responsibility of sending copies to the Sarpanch, Upasarpandh, Zilla Parishad, Panchayat Samiti, Collector and the Commissioner is that of the Tahsildar. The issuers of the motion of no confidence have no control over the Tahsildar. Therefore, they cannot be faulted for any technical breach committed by the Tahsildar. In that case, the Learned Single Judge held that once the Tahsildar had furnished a notice of intimation to the Sarpanch and other persons/authorities, there was sufficient compliance of Rule 2(2). The form of the notice given in the rule was held only to be directory and not mandatory.
11. In invalidating the resolution which has been passed in the present case, both the authorities below have adverted to a judgment delivered by me in Arjun Sambhajl Khade v. Mangal Ankush Kharmate, 2003(2) Mh. L.J. 295. That was a case, where a resolution of no confidence that was passed by the Gram Panchayat was set aside by the Collector on the ground that copies of the requisition which had been submitted for holding of the special meeting had not been submitted in seven sets to the Tahsildar and that the notice was not in the prescribed form. In that case, as a matter of fact, the notice that had been furnished by the requisitionists to the Tahsildar contained the grounds on which the removal of the Sarpanch was sought. In the course of my judgment, I held that what was mandatory under Section 35 and Rule 2 is the furnishing of a notice to the Tahsildar of the intention of the members of Gram Panchayat to move a motion of no confidence. Furnishing a notice to the Tahsildar was held to be mandatory because it is on the basis of that notice that the Tahsildar has to convene a special meeting of the Gram Panchayat. The judgment of the Court held that Sub-rule (2) of Rule 2 makes a distinction between the notice and the seven additional copies thereof and while furnishing a notice to the Tahsildar was mandatory the provision for additional copies thereof was not. There is a passing observation in the course of that judgment that the opportunity which is to be granted to the Sarpanch or Upa-Sarpanch of defending himself must comprehend an adequate notice of the proposed resolution and the grounds thereof. In that case, as a matter of fact, the notice furnished by the Tehsildar to the Sarpanch also included a copy of the requisition. The question as to whether a copy of the requisition must necessarily be furnished to the Sarpanch by the Tahsildar did not fall for consideration. That judgment, hence, cannot be read to mean that a failure of the Tahsildar to furnish a copy of the requisition to the Sarpanch and Upa-Sarpanch while convening a meeting must invalidate the resolution of no confidence.
12. In the circumstances, both the authorities below have erred in setting aside the resolution of no confidence which was duly passed. The meeting was convened by the requisite number of members. The resolution was debated and discussed. Both the Sarpanch and Upa-Sarpanch participated in the meeting. The resolution was duly carried by a majority of two-third of those entitled to sit and vote at the meeting. The orders passed by the Collector and the Commissioner are in the circumstances unsustainable and accordingly shall stand set aside.
13. Rule is made absolute in terms of prayer Clauses (b) and (c).
14. Parties be given copies of this order duly authenticated by the Sheristedar/Personal Secretary of this Court.