Bombay High Court
Nivruti Dnyanoba Davale(Patil vs The Additional Collector on 22 November, 2013
Author: S. S. Shinde
Bench: S. S. Shinde
1 W.P.3937.13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 3937 OF 2013
1. Nivruti Dnyanoba Davale(Patil)
Age 45 yrs. Occu. Agri.
2. Sou. Shivkanta W/o Govind Rajarupe
Age 25 yrs. Occ. Household.
3. Narayan S/o Rajaram Salunke
Age 25 yrs. Occu. Agri.
4. Sour Bhagyashri W/o Rajkumar Rajarupe,
Age 35 Yrs. occu. Household.
5.
Bhagwan S/o Ramrao Duve,
Age 42 yrs. Occu. Agri.
6. Sou. Sulochana W/o Balaji Duve,
Age yrs. Occu. Household.
7. Premanand S/o Dattoba Sonkamble,
age 25 yrs. Occu. Agri.
All are R/o Kabansangvi,
Tq. Chakur, Dist. Latur. ...PETITIONERS
VERSUS
1. The Additional Collector,
Latur.
2. The Tahsildar,
Chakur, Dist. Latur.
3. Basavraj S/o Mallikarjun Nila,
Age 45 yrs. Occu. Agri.
R/o Kabansangvi Tq. Chakur,
Dist. Latur. ...RESPONDENTS
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2 W.P.3937.13
...
Shri N.P. Patil, Jamalpurkar Advocate for Petitioners
Shri S.D. Kaldate, AGP for respondent Nos. 1 and 2.
Shri V.D. Gunale, Advocate for Respondent No. 3
...
CORAM: S. S. SHINDE, J.
DATE : 22.11.2013
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith. By consent heard finally.
2. The relevant facts, leading to file present petition as disclosed .
in this writ petition are as under:
The petitioners herein are the members of the village panchayat, Kabansangvi, Ta. Chakur, District Latur. Respondent No. 3 herein is the member of Panchayat and earlier was elected as Sarpanch of the village Gram Panchayat, Kabansangvi. It is the case of the petitioners that 'No Confidence Motion' was passed by 2/3 majority, in the special meeting dated 29.01.2013. It is further case of the petitioners that election of village Panchyat Kabansanvi was held in the month of June 2010. Total strength of members of the village Panchyat, Kabansanvi are nine. In the month of July 2003 respondent No. 3 was elected as Sarpanch of the village Panchayat. It is further case of the petitioners that while functioning as Sarpanch of the village Panchayat, various illegalities and irregularities are committed by respondent No. 3. Therefore, the ::: Downloaded on - 27/11/2013 20:34:09 :::
3 W.P.3937.13 petitioners moved No Confidence Motion proposal dated 23.01.2013.
The Notice to that effect was given to the Tahsildar. The Tahsildar, on receipt of the notice given by the petitioners, conveyed the special meeting of the Panchayat for considering the motion of no confidence at the office on 29.01.2013.
3. It is further case of the petitioners that notice of the meeting was served on all the members of the Panchayat.. Out of total nine members eight members were present including respondent No. 3.
One member, namely, Sau. Shobhabai W/o Vaijnath Motipaval, who is mother-in-law of respondent No. 3, was absent in the meeting. It is further case of the petitioners that Tahsildar presided over the meeting and allowed the Sarpanch to raise his defence on the allegations against him. It is further case of the petitioners that out of eight members, who are present in the meeting, seven members have caste their votes in favour of motion of no confidence. Motion was passed by more than 2/3 majority.
4. It is further case of the petitioners that respondent No. 3 has filed Dispute before the Additional Collector. The Additional Collector has set aside the motion of no confidence passed against respondent No. 3, by the impugned order dated 26.04.2013 and the same is challenged in this petition.
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5. Learned counsel appearing for the petitioners submitted that no confidence motion was passed by more than 2/3 majority, and therefore, the Additional Collector should not have interfered with no confidence motion. It is submitted that the principal ground assigned by the Additional Collector while interfering in the no confidence motion appears to be that no reasons are assigned by the Tahsildar about the charges leveled against respondent No. 3.
6. Learned counsel appearing for petitioner further submitted that when no confidence motion was moved, it was not necessary to the Tahsildar i.e. Presiding Officer to set out the ground or charge on which no confidence is based. It is submitted that this Court in the case of Pravin Shripati Yadav Vs. Gram Panchyaat Minche, Tal Hatkanangale and others reported in 2013(2) ABR 611, and in particular, in paragraph No. 25 thereof, relied upon the judgment of the Supreme Court in the case of Babubhai M. Patel Vs. Nandlal K. Barot and others reported in AIR 1974 SC 2105 and has taken a view that there is difference between a motion of no confidence and a censure motion. While it is necessary in the case of 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.
According to the learned counsel appearing for the petitioners, it was not necessary for the Presiding Officer to set out ground or ::: Downloaded on - 27/11/2013 20:34:09 ::: 5 W.P.3937.13 charge since motion moved by the petitioners was no confidence motion.
7. Learned counsel appearing for petitioners also invited my attention towards paragraph Nos. 3 and 4 of the impugned order and submitted that contrary findings are recorded by the Collector inasmuch as in paragraph No. 3, the Additional Collector has recorded his satisfaction about participation of the members including respondent No. 3 in the meeting and observed that opportunity was given to the members to express their views.
Therefore, learned counsel appearing for petitioners submitted that in paragraph No. 3 satisfaction has been recorded by the Additional Collector, Latur about the opportunity to the members to express their views. Stray observations in paragraph No. 4 of the impugned order are 'that prima facie it appears that opportunity was not given,' is contrary to the reasons given in paragraph No. 3. It is submitted that the proceedings of the meeting recorded by the Presiding Officer, makes it clear that, on the relevant day relevant procedure and rules have been followed and thereafter no confidence motion has been passed by more than 2/3 majority of the members, who participated and voted in the said meeting.
Therefore, relying on the grounds taken in the writ petition, annexures thereto and law laid down in the judgments of the ::: Downloaded on - 27/11/2013 20:34:09 ::: 6 W.P.3937.13 Hon'ble High Court and the Hon'ble Supreme Court (cited supra), learned counsel appearing for petitioners submitted that petition deserves to be allowed.
8. On the other hand, learned AGP invited my attention to the affidavit in reply filed on behalf of respondent No. 1 and submitted that no confidence motion was passed without debating subject.
9. Learned counsel appearing for contesting respondent No. 3 submitted that grounds taken in the dispute have not been considered by the Additional Collector. He submits that one of the member did not receive the notice and to that effect ground was taken by respondent No. 3 in the dispute. However, there is no specific adjudication by the Additional Collector on the said ground. It is further submitted that as required by relevant rules proper procedure is not followed and respondent No. 3 was not given opportunity to express his view. It is submitted that, no confidence motion was neither proposed nor seconded by any of the members, which is statutory requirement of the relevant rules. In support of this contention the learned counsel appearing for respondent No. 3 has placed reliance on the judgment in the case of Indubai Vedu Khairnar Vs. State of Maharashtra reported in 2003(2) BCR 239. Therefore, relying upon the reasons recorded by ::: Downloaded on - 27/11/2013 20:34:09 ::: 7 W.P.3937.13 the Collector and arguments advanced across the bar and the grounds taken in the writ petition and annexures thereto learned counsel appearing for respondent No. 3 has submitted that the petition is devoid of any merit and deserves to be dismissed.
10. I have heard the learned counsel for the parties at length.
With their able assistance I have perused the grounds taken in the petition and annexures thereto and the impugned order passed by the Additional Collector, Latur and also reply filed by respondent Nos. 1 and 3. In order to ascertain whether there was discussion/debate in the meeting, which was conducted on 29.01.2013 at 2.00 p.m., I have perused the copy of the proceedings book, which is placed on record (from page No. 12 to 15). Upon perusal of said proceedings, it is abundantly clear that sanctification recorded by Additional Collector in paragraph No. 3 of the impugned order appears to be in consonance with proceedings of the meeting. Paragraph No. 3 from the order of the Additional Collector reads thus.
"fnukad 29-01-2013 jksth vk;ksftr dsysY;k fo'ks"k cSBdhr oknh gs Lor% mifLFkr gksrs r'kh bfro`Rr jftLVjyk uksan vkgs- bfro`Rr jftLVjps voyksdu dsys vlrk oknh o izfroknh ;kauk lnj cSBdhl euksxr O;Dr dj.;kl la/kh fnyh vlY;kps Li"V gksrs- R;keqGs oknhl euksxr O;Dr dj.;kl la/kh fnysyh ukgh gs Eg.k.ks la;qDrhd ukgh-::: Downloaded on - 27/11/2013 20:34:10 :::
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11. Therefore, the stray observation in paragraph No. 4 of the impugned judgment that, prima facie it appears that no opportunity was given to discuss on the issue raised in the meeting, appears to be contrary to record, vague and contrary to specific observation made in the paragraph No. 3.
12. It is not in dispute that out of nine members eight members have been participated in the meeting. It is evident from the proceedings book that out of eight members seven members by raising their hands voted in favour of no confidence motion, as rightly contended by the learned counsel appearing for the petitioners and law laid down in the case of Pravin Yadav (Supra), relying upon the judgment of the Supreme Court in the case of Babubhai M Patel (Supra) that there is a difference between a motion of no confidence and a censure motion. It is necessary in the case of 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. Paragraph No. 25 from the judgment of this Hon'ble Court in the case of Pravin Yadav (Supra) reads thus.
"25. In this respect, it will be appropriate to refer to the following observations of the Apex Court in the case of Babubhai M. Patel Vs. Nandlal K. Barot and Ors., reported in AIR 1974 SC2105.::: Downloaded on - 27/11/2013 20:34:10 :::
9 W.P.3937.13 It is pertinent in this context to observe that there 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 pre- supposes 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 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)
13. The arguments of the learned counsel appearing for respondent No. 3 that, no confidence was not proposed or seconded by any of the members was not specifically argued and therefore discussion of said point does not find place in the impugned order of the Additional Collector. Therefore, if there is no ::: Downloaded on - 27/11/2013 20:34:10 ::: 10 W.P.3937.13 adjudication on the said point, since the said point was not specifically canvassed before the said authority, in writ petition filed by the petitioners i.e. original non disputants in the dispute, the said point deserves no consideration. Further the contention of the learned counsel for respondent No. 3 that, no notice was served upon one of the member of the village Panchayat is concern, it appears that no such specific point was agitated before Additional Collector or considered by the Additional Collector. Even if it is presumed that there is no notice served upon one of members of the Gram Panchayat, aggrieved person would be said member, who has not received the notice. However, at the instance of respondent No. 3 the said point deserves no consideration.
14. Therefore, in view of the reasons stated aforesaid, the impugned judgment and order dated 26/04/2013 passed by the Additional Collector, Latur cannot sustain in law inasmuch as said judgment takes a contrary view to the law laid down by this Court in the case of Pravin Yadav (Supra).
15. In that view of the matter, the impugned order is set aside. It is declared that no confidence motion, which was passed in the meeting dated 29.01.2013 by seven members out of eight members, who were present in the meeting is validly passed, and said no ::: Downloaded on - 27/11/2013 20:34:10 ::: 11 W.P.3937.13 confidence motion deserves to be implemented by all the concern authorities by taking follow up action. The petition is allowed to above extent Respondents/authorities are directed to take immediate further steps on the basis of no confidence motion passed in the meeting dated 29.01.2013 within two weeks from today.
16. Rule is made absolute in above terms. The petition is disposed of accordingly.
ig Sd/-
[ S. S. SHINDE, J. ]
MTK
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