Bombay High Court
Shri Tatyasaheb Ramchandra Kale vs Shri Navnath Tukaram Kakde & Ors on 24 January, 2014
Author: S.C. Gupte
Bench: A.S. Oka, S.C. Gupte
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
LETTERS PATENT APPEAL NO. 312 OF 2013
IN
WRIT PETITION NO. 6967 OF 2012
Shri Tatyasaheb Ramchandra Kale ...Appellant
vs
Shri Navnath Tukaram Kakde & Ors. ...Respondents
Mr.C.G. Gavnekar with Mr.Shiva Patil for Appellant.
Mr.Shriniwas S. Patwardhan for Respondent No.1.
Mr.A.B. Vagyani, Additional Government Pleader for State.
ig CORAM : A.S. OKA & S.C. GUPTE, JJ.
RESERVED ON : 11 DECEMBER 2013
PRONOUNCED ON : 24 JANUARY 2014
JUDGMENT (Per S.C. Gupte, J.) :
Admitted. Taken up for hearing forthwith by consent of parties.
1 In this appeal, the Appellant has challenged an order passed by a learned Single Judge of this court in a writ petition refusing to grant interim relief to the Appellant, who was a petitioner in the writ petition.
2 In an election of the village panchayat held in the year 2010, the Appellant was elected as the Sarpanch for the village Theur in Taluka Haveli, District Pune, for a period of 5 years. The Gram Panchayat has 17 members. On 5 October 2011, Respondent No. 7 along with 6 others, all of whom were members of the panchayat, moved a no confidence motion against the Appellant by giving notice under Section 35 of the Bombay Village Panchayats Act, 1958 ("the Act"). Respondent No. 14 - Tahsildar disposed of the notice on the ground ::: Downloaded on - 13/02/2014 23:10:10 ::: sat 2 lpa 312-2013.doc that the notice was not tendered in the prescribed form. Thereafter, on 7 March 2012, Respondents Nos. 1 to 13 submitted another notice to the Tahsildar. The Tahsildar convened a special meeting of the Panchayat on 12 March 2012 for discussing the no confidence motion. The meeting was attended by all 17 members of the Panchayat. 13 members voted in favour of the no confidence motion by raising their hands, and the motion was declared as passed by the Tahsildar. The Appellant challenged the decision by preferring a Dispute Application under Section 35 (3-B) of the Act before Respondent No. 16 -
Additional Collector, Pune. The Dispute Application was dismissed by Respondent No. 16. The Appellant, thereupon, preferred an appeal before Respondent No. 17 - Divisional Commissioner, Pune. The Appeal was rejected.
Being aggrieved, the Appellant filed the writ petition, in which the impugned order was passed by the learned Single Judge. By the impugned order, though Rule was issued, the Appellant's application for interim relief for stay of the orders below on the no confidence motion was rejected by the learned Single Judge.
Being aggrieved, the Appellant has preferred this appeal.
3 We have heard Mr. Gavnekar, the learned Counsel for the Appellant, Mr. Patwardhan, the learned Counsel for Respondent No. 1 and Mr. Vagyani, the learned Additional Government Pleader for the State.
4 The controversy in the matter may be briefly stated as follows. The resolution passed by the Gram Panchayat had the requisite majority. The basis of challenge to the resolution was, however, two fold: (1) contravention of Section 35 (3-A) of the Act, and (2) non-compliance with Rule 17 of the Bombay Village ::: Downloaded on - 13/02/2014 23:10:10 ::: sat 3 lpa 312-2013.doc Panchayats (Meeting) Rules, 1959 ("the Meeting Rules"). Section 35 (3-A) of the Act provides that if a no confidence motion (of which notice is given to the Tahsildar) is not moved or is not carried by a majority of not less than three fourth of the total number of 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 within a period of one year from the date of such special meeting. It is the case of the Appellant that the first notice of no confidence motion was given to the Tahsildar on 7 March 2012. That motion was not moved or carried by the requisite majority and therefore, it was not open to anyone to move a second no confidence motion within one year. Secondly, it is claimed that Rule 17 of the Meeting Rules requires the member who has given notice of a motion to commence his speech by a formal motion, which is required to be Seconded before the same is put to vote. It is claimed that in the meeting of the Panchayat no one moved or seconded the no confidence motion and thus, there is a clear breach of Rule 17 and the motion cannot be said to have been validity carried.
5 The learned Single Judge rejected the first contention of the Appellant by holding that the bar under Section 35 (3-A) will be attracted only when a special meeting is actually held in pursuance of the notice and in that meeting the no confidence motion is either not moved or not carried, and that in the present case the Tahsildar had not convened the special meeting at all in pursuance of the first notice. On the second contention, the learned Single Judge noted that there was dichotomy between the decisions of this court on the question of nature of Rules 17 and 18, namely, whether the Rules were mandatory or directory. In the case of Vijay Ramchandra Katkar Vs. Group ::: Downloaded on - 13/02/2014 23:10:10 ::: sat 4 lpa 312-2013.doc Gram Panchayat Pali1, a learned Single Judge of this court (R. C. Chavan, J) had held that Rules 17 and 18 are mandatory and any failure to observe these provisions vitiates the entire proceedings. In the case of Vishnu R. Patil Vs. Group Gram Panchayat, Kharivali2, another learned Single Judge (S.C. Dharmadhikari, J.) held that Rule 17 is directory. In the case of Waman Shankar Doltade Vs. State of Maharashtra3, another learned Single Judge of this court disagreed with the view taken in the case of Vijay Ramchandra Katkar (supra) and referred the matter to a larger bench. Having regard to the fact that the matter was referred to the larger bench and on that basis several petitions were admitted, the learned Single Judge was of the view that the present matter required consideration and therefore, Rule was issued.
6 In so far as interim relief was concerned, the learned Single Judge was of the view that under Section 35 (3-D) of the Act, after rejection of the appeal by the Commissioner, the office held by Sarpanch is deemed to be vacant. The learned Single Judge noted that the motion was carried by 13 members voting in favour and that having regard to the deeming fiction, the post had become vacant. The learned Single Judge, in the premises, held that no case was made out for grant of interim relief. The learned Single Judge observed that all actions taken after the impugned orders shall be subject to the outcome of the writ petition. This part of the order is assailed in the appeal before us.
7 Mr. Gavnekar, the learned Counsel for the Appellant submitted that 1 2010(4) Mh.L.J. 497 2 Writ Petition 167/2011 decided on 26.7.2011 3 Writ Petition 10298/2011 decided on 28.11.2011 ::: Downloaded on - 13/02/2014 23:10:10 ::: sat 5 lpa 312-2013.doc a Full Bench of this court has, in the case of Vishwas Pandurang Mokal Vs. Group Gram Panchayat, Shihu 4, held that a motion of no confidence under Section 35 of the Act is not moved by submission of requisition to the Tahsildar, but in the special meeting of the Panchayat convened under Section 35 in pursuance of the requisition and the provisions of the Meeting Rules generally, and of Rule 17 particularly, apply to such special meeting. Mr.Gavnekar further submitted that based on the Full Bench decision, a division bench of our court has since, in the case of Vishnu Ramchandra Patil Vs. Group Gram Panchayat, Kharivli5 (being an appeal from the decision of S. C. Dharmadhikari, J. in the case of Vishnu Ramchandra Patil referred to above), decided the question and held that Rule 17 is mandatory in nature and applies squarely to proceedings for a motion of no confidence. The learned Counsel submitted that in view of this decision, the authorities below had clearly erred in upholding the no confidence motion in the present case. The learned Counsel submits that admittedly the motion was not formally moved or seconded by anyone in the special meeting and there is, thus, a clear breach of Rule 17, which is now held to be mandatory.
8 On the other hand, the learned Counsel for Respondent No. 1 submits that what the Full Bench of this court decided in the case of Vishwas Pandurang Mokal (supra) was that a particular rule, namely, Rule 17 in that case, applied to a meeting called under Section 35 of the Act for considering a no confidence motion. As for the directory or mandatory nature of the applicable rule, the Full Bench in terms held that it was not deciding the question as to what is 4 2011(3) Mh.L.J. 500 5 2013(3) Mh.L.J. 133 ::: Downloaded on - 13/02/2014 23:10:10 ::: sat 6 lpa 312-2013.doc the consequence in relation to validity or otherwise of a motion of no confidence passed in violation of, or without following, a particular rule. The Full Bench observed that "that question will have to be decided in each case after considering the nature of the provision, whether the provision is mandatory or directory." The learned Counsel submitted that the observation of the Division Bench of our court in Vishnu Ramchandra Patil (supra) that the two questions posed for the consideration of the court in the appeals before it namely, (1) whether Rule 17 was directory or mandatory and (2) whether non-compliance of Rule 17 would render the decision on the motion of no confidence invalid, were no more res integra as the same were answered by the Full Bench, was, with respect, not in order. Alternatively, the learned Counsel submitted that on merits in the present case, there is compliance, or at any rate, substantial compliance with the provisions of Rule 17 and the resolution passed by the Panchayat was validly carried.
9 Before we dwell upon the law on the subject, namely, the applicable rules for a no confidence motion under the Act and the effect of non-compliance of any particular rule on the validity of the motion, it is necessary to restate the exact contours of the controversy in the present case. The controversy here arises in the light of the following facts, which are not seriously disputed before us.
(i) A notice of the no confidence motion against the Sarpanch was duly given under sub-section (1) of Section 35 of the Act by not less than one third of the total number of the members of the Panchayat entitled to sit and vote at any ::: Downloaded on - 13/02/2014 23:10:10 ::: sat 7 lpa 312-2013.doc meeting of the Panchayat;
(ii) In compliance of sub-section (2) of Section 35, the Tahsildar did convene a special meeting of the Panchayat for considering the motion;
(iii) The special meeting of Panchayat so convened was duly held, with the Tahsildar presiding over such meeting;
(iv) The motion was put to vote and carried by a majority of not less than two third of the total number of members who were for the time being entitled to sit and vote at any meeting of the Panchayat.
The controversy concerns the 'moving' of the motion of no confidence. It is alleged by the ousted Sarpanch that there was no 'moving' of motion by the member/s who has/have given notice of the motion by 'commencement of speech by a formal motion in the terms appearing on the list of business.' Secondly, the motion was not 'duly seconded' by anyone; thirdly, without being 'moved' and 'seconded', the person presiding could not have proposed the question by placing the motion for the consideration of the Panchayat. It is alleged that these are the specific requirements of Rule 17 of the Meeting Rules and since they are not satisfied in the present case, there is non-compliance with Rule 17. It is further alleged that Rule 17 being mandatory as held by the Division Bench in the case of Vishnu Ramchandra Patil (supra), the resolution of the Panchayat is invalid by reason of the breach.
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10 We may now note the relevant provisions of the applicable law.
A. Section 35 of the Act (i.e. the relevant sub-sections) provides as follows:
"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. 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 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 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."
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B. Rule 2 of the Bombay Village Panchayats Sarpanch and Upa-sarpanch
(No Confidence Motion) Rules, 1975 ("the No Confidence Motion Rules") provides as follows:
"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 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."
C. The relevant Rules of the Bombay Village Panchayats (Meeting) Rules, 1959 are as follows:
"2(c) "motion" means a proposal made to evoke action on the part of the panchayat, and includes an amendment of a motion."
16. A matter requiring the decision of the panchayat shall be decided by means of a question put by the person presiding on a motion made by a member.
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17. (1) A member who has given notice of a motion shall, when called on, either.-
(a) state that he does not wish to move the motion, or
(b) move the motion in which case he shall commence his speech by a formal motion in the terms appearing on the list of business, after the motion is duly seconded.
(2) If a member when called is absent, any other member may, with the permission of the person presiding, move the motion standing in the name of the absent member. If permission is not granted to the other member to move the motion, the motion shall lapse.
18. After a motion has been moved and seconded the person presiding shall propose the question by reading the motion for the consideration of the panchayat.
23. After a motion has been placed before the meeting for consideration under Rule 18, the mover may speak in support of the motion and the seconder may either follow or reserve his speech for a later stage of the debate thereon.
39. No motion shall be discussed or noted in the minute book unless and until it has been properly proposed and seconded, provided that a motion by the person presiding need not be seconded."
11 The conspectus of the provisions set out above shows that a 'motion' is basically a proposal made to evoke action on the part of the Panchayat. Such action is taken by deciding a question put by the person presiding the meeting on the proposal. The proposal is made ordinarily by proposing and seconding it. If the proposal comes from the presiding officer, it need not be seconded. Rules 17, 18 and 23, amongst others, provide for the manner in which the proposal may be made and action taken thereon. A proposal for no confidence to be expressed against a sitting Sarpanch or Upa-Sarpanch is ::: Downloaded on - 13/02/2014 23:10:10 ::: sat 11 lpa 312-2013.doc a special proposal and there are special rules for making such proposal and taking action thereon. Subject to these special rules, the business of a no confidence motion may be transacted by the Panchayat consistent with Section 35 of the Act and in keeping with the general rules applicable to all proposals and actions thereon. This much appears clear from the plain reading of the provisions quoted above.
12 The difficulty arises when we consider (1) the applicability of any particular provision of the Meeting Rules to the proceedings of a no confidence motion, and (2) the consequences of non-compliance with such provision in any proceedings of a no confidence motion. There have been several judicial pronouncements on these matters, some of which may now be noted.
13 At the outset, it may be clarified that since we are concerned here with the application of Rule 17, in particular, of the Meeting Rules to the proceedings of the no confidence motion, which is the subject matter of the present appeal, the following discussion is in the context of applicability of Rule
17. 14 On the first question, namely, applicability of Meeting Rules generally, and in particular Rule 17 thereof, to the proceedings of a no confidence motion, there was a divergence of views between learned Single Judges and also Division Benches of this court. But that can be said to have been set at rest now with the pronouncement of the Full Bench decision in the case of Vishwas Pandurang Mokal (supra). The Full Bench, in that case, held as follows (in para ::: Downloaded on - 13/02/2014 23:10:10 ::: sat 12 lpa 312-2013.doc
17):
"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. Perusal of the No Confidence Motion Rules shows that they do not contain any provision in relation to the conduct of the meeting. Provisions for conduct of the meeting of the village panchayat are to be found in the Meeting Rules. The manner of submitting a requisition for convening a special meeting of the village panchayat to consider motion of no confidence against the Sarpanch 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 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 ::: Downloaded on - 13/02/2014 23:10:11 ::: sat 13 lpa 312-2013.doc applicable to a meeting called under Section 35, it will facilitate holding of meeting under section 35 effectively. Therefore, in our opinion, it can be safely said that the provisions of the Meeting Rules generally apply to a special meeting convened under section 35. However, such provisions of the Meeting Rules which are found to be contrary to the provisions contained either in the Act in relation to the holding of the special meeting for consideration of 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 that perusal of No Confidence Motion Rules and the Form of the requisition shows that when the members of the village panchayat submit the requisition to the Tahsildar, what they actually do is that they request the Tahsildar to convene a special meeting of the village panchayat so that in that meeting they can move a motion of no confidence against Sarpanch or Up-Sarpanch. It is, thus, clear that moving of the motion of no confidence is not by submission of requisition to the Tahsildar. The requisition is only for calling a special meeting to facilitate moving of motion of no confidence. The motion of no confidence is actually moved in the meeting of the village panchayat and as there is no contrary provision to be found either in the Act or in the No Confidence Motion Rules, in relation to moving of a motion in a meeting of the village panchayat, Rule 17 of the Meeting Rules which makes such a provision will apply. In the Meeting Rules there is a provision made for calling a special meeting of village panchayat because a requisition is received from members. Therefore, concept of convening a special meeting of the village panchayat as a consequence of requisition received from the members is to be found in ::: Downloaded on - 13/02/2014 23:10:11 ::: sat 14 lpa 312-2013.doc 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."
15 The Full Bench clarified that the provisions of the Meeting Rules generally apply to a special meeting convened under Section 35 of the Act.
However, such provisions of the Meeting Rules which are found to be contrary to provisions contained either in the Act in relation to the holding of the special meeting for consideration of a motion of no confidence against Sarpanch or Upa-
Sarpanch or in the No Confidence Motion Rules, would not apply to a meeting called under Section 35. In particular, the provisions of Rule 17 of the Meeting Rules will apply to a meeting called under Section 35. That settles the first question.
16 The second question is, what are the consequences of non-
compliance with any provisions of Rule 17 in a special meeting held under Section 35. Generally, the discussion of this question centres around the issue whether the provision is mandatory or directory in nature. It is generally assumed that if a provision is mandatory, any act done in breach thereof will be invalid, but if it is directory the act will be valid although the non-compliance may give rise to some other penalty, if provided by the statute. (See the case Rani Drigraj Kuer vs. Raja Sri Amar Krishna Narain Singh 6) Again, there is the question of the nature of compliance which is demanded by a provision. It has often been said 6 AIR 1960 SC 444 ::: Downloaded on - 13/02/2014 23:10:11 ::: sat 15 lpa 312-2013.doc that that the general rule, that non-compliance with a mandatory requirement results in nullification of the act, is subject to exceptions. At least two exceptions are well known. One exception is where performance of the requirement is impossible. When such is the case, the performance may be excused in a given case. (See the case of The Cochin State Power and Light Corporation Ltd.
Vs. The State of Kerala7) Another exception is of waiver. If certain requirements or conditions are provided by a statute for the benefit of a certain person or persons, the requirements or conditions, though mandatory, may be waived by the person/s if no public interest is involved. (See the case of Lachoo Mal vs. Radhey Shyam8) So also, the rule that a directory requirement can be substantially complied with is not of universal application. There may even be directory requirements, which do not affect the validity of an act even if they are not complied with at all. Again, a rule may itself contain a combination of mandatory and directory requirements so that if the mandatory requirements are complied with, it will be proper to say that the enactment has been substantially complied with notwithstanding the non-compliance with directory requirements of the rule. We have laid bare the foregoing aspects of the second question posed by us only to underline the point that the focus of an inquiry in such cases must be on the consequences of non-compliance complained of rather than the general strait-jacket branding of a provision of law as mandatory or directory.
17 With the aforesaid preface, we may now turn to the question itself and find an answer to it. A Division Bench of our court in the case of Vishnu Ramchandra Patil (supra) has considered this question. In that case, the 7 AIR 1965 SC 1688 8 1971(1) SCC 619 ::: Downloaded on - 13/02/2014 23:10:11 ::: sat 16 lpa 312-2013.doc reading of the minutes recorded by the Tahsildar of a special meeting held under Section 35 of the Act showed that no resolution of no confidence was moved or seconded by any of the members. The minutes, however, showed that in a meeting held by the Tahsildar everybody fully participated in the discussion and after hearing everybody's speech, no confidence motion was passed. The learned Judges of the division bench framed two broad points that arose for their consideration, which are quoted below:
"(i) whether the procedure stipulated in Rule 17 of the Bombay Village Panchayats (Meeting) Rules, 1959, is a directory or mandatory procedure?
(ii) whether non-compliance of procedure stipulated in Rule 17 of the Meeting Rules would render the decision taken on the Motion of No Confidence passed in exercise of power under section 35 of the Act invalid, in law?"
18 On the first point, the Division Bench came to the conclusion that the procedure stipulated in Rule 17 is mandatory. The reasoning of the Division Bench may be briefly stated thus:
(i) Procedure under Rule 17 has been held to be mandatory in relation to all other motions moved before the panchayat governed by the Meeting Rules;
(ii) As per Full Bench direction in the case of Vishwas Pandurang Mokal (Supra), Rule 17 applies to a meeting called under Section 35 of the Act;::: Downloaded on - 13/02/2014 23:10:11 :::
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(iii) There is nothing in Rule 17 to suggest that the same must be
construed as mandatory for general meetings and directory for a meeting under Section 35;
(iv) The issue regarding the mandatory or directory nature of Rule 17 has already been answered by the Full Bench and is no more res integra.19
On the second point, one does not find any separate discussion in the decision of the Division Bench except (i) reliance on the decision of another Division Bench of our court in the case of Janardan Shankar Watane Vs. CEO, Zilla Parishad, Amravati9, and (ii) a reiteration that even the second point has already been answered by the Full Bench and therefore, no more res integra.
Broadly speaking, the Division Bench seems to have relied on its reasoning on the first point to decide the second and hold that non-compliance with Rule 17 rendered the decision on the no confidence motion invalid.
20 We are afraid we are unable to subscribe to the above reasoning or persuade ourselves to come to the conclusions arrived at by the learned Division Bench in the case of Vishnu Ramchandra Patil (supra). In the first place, we have not come across any judgment which holds that Rule 17 is mandatory for the purpose of all other motions (i.e. other than a no confidence motion). That is the major premise of the Division Bench judgment. There is no support of 9 1965 Mh.L.J. Note No.2 ::: Downloaded on - 13/02/2014 23:10:11 ::: sat 18 lpa 312-2013.doc authority for that premise. Even the other proposition in the reasoning of the Division Bench (namely, that the issue regarding the mandatory or directory nature of Rule 17 has already been answered by the Full Bench) runs, with utmost respect, counter to the dictum of the Full Bench in Vishwas Pandurang Mokal (Supra). What the Full Bench held was, the question, as to the consequence of non-compliance with any Rule, will have to be decided in each case after considering the nature of the provision. Besides, in particular reference to the mandatory or directory nature of Rule 17 itself or the consequence of non-
compliance therewith on the validity or otherwise of a no confidence motion, the Full Bench in terms observed that it was not deciding that question, since the same was not referred to it.
21 The question as to whether an enactment is mandatory or directory (or more precisely whether the acts committed in breach thereof are valid or invalid) must depend upon the true intent of the legislature and not upon simply the language of the enactment. This dictum from 'Crawford on Statutory Construction' was approved by the Supreme Court in the case of State of U. P. Vs. Manbodhan Lal Srivastava10. Later, in the case of State of Uttar Pradesh Vs. Babu Ram Upadhya11, Subba Rao J. speaking for the court held:
" For ascertaining the real intention of the Legislature, the court may consider inter alia, the nature and design of the statute, and the consequences which would follow from construing it the one way or the other; the impact of other provisions whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely, that the statue provides for a 10 AIR 1957 SC 912(1) 11 1961(1) Cri.L.J. 773 (Vol.62, C.N.208) ::: Downloaded on - 13/02/2014 23:10:11 ::: sat 19 lpa 312-2013.doc contingency of the non-compliance with the provisions;
the fact that the non-compliance with the provisions is or is not visited by some penalty; the serious or the trivial consequences, that flow therefrom; and above all, whether the object of the legislation will be defeated or furthered."
22 The Supreme Court again had an occasion to consider this question in the particular context of a rule of meetings under the Mysore Town Municipalities Act, 1951 ("the Mysore Act") in K. Narasimhiah vs. H.C. Singri Gowda12. The rule involved was a rule requiring giving of three days notice of a special meeting to discuss a resolution to express no confidence. In that case, the town municipality had 20 councillors, 13 of whom had sent a requisition to the President to convene a special general meeting to discuss a resolution expressing no confidence in the President. The request was handed over to the President. Since the President did not take any step for convening the meeting, the Vice President called a meeting to discuss the resolution. A notice of that meeting was sent by the Vice President. Whilst the notice was received by 15 of the 20 councillors in time (i.e. before 3 days), 5 councillors including the President received it late, i.e. less than 3 days before the meeting. 19 out of the 20 councillors including the President were present for the meeting. The President, however, left the meeting and the meeting was, in his absence, chaired by the Vice-President. The no confidence motion was passed, with 15 councillors supporting the same. The motion was challenged in the High Court. The High Court rejected the petition. The matter was carried before the Supreme Court.
The question considered by the Supreme Court was, whether the provision of three days' notice was mandatory or directory. The Supreme Court observed 12 AIR 1966 SC 330 (V 53 C 66) ::: Downloaded on - 13/02/2014 23:10:11 ::: sat 20 lpa 312-2013.doc (para 12) :
"12. The question then is : Is the provision of three clear days notice mandatory, i.e., does the failure to give such notice make the proceedings of the meeting and the resolution passed there invalid ? The use of the word "shall" is not conclusive on the question. As in all other matters of statutory construction the decision of this question depends on the ascertainment of the legislature's intention. Was it the legislature's intention in making the provision that the failure to comply with it shall have the consequence of making what it done invalid in law ? That is the question to be answered. To ascertain the intention the Court has to examine carefully the object of the statute, the consequence that may follow from insisting on a strict observance of the particular provision and above all the general scheme of the other provisions of which it forms a part."
The Supreme Court also considered the effect of Section 36 of the Mysore Act which provided as follows:
" No resolution of a municipal council or any committee appointed under this Act shall be deemed invalid on account of any irregularity in the service of notice upon any councillor or member provided the proceedings of the municipal council or committee were not prejudicially affected by such irregularity."
The Supreme Court observed (para 20) :
"We are, therefore, of opinion that the fact that some of the Councillors received less than three clear days' notice of the meeting did not by itself make the proceedings of the meeting or the resolution passed there invalid. These would be invalid only if the proceedings were prejudicially affected by such irregularity. As already stated, nineteen of the twenty Councillors attended the meeting. Of these 19, 15 voted in favour of the resolution of no-confidence against the appellant. There is thus absolutely no reason for thinking that the proceedings of the meeting were prejudicially affected by the "irregularity in the service of notice.""::: Downloaded on - 13/02/2014 23:10:11 :::
sat 21 lpa 312-2013.doc
23 Going by these indices, the basic object of the Act may now be
seen. The object is to establish village panchayats for any village or group of villages and invest them with such powers and authority as may be necessary to enable them to function as units of local self-government. These units are expected to function democratically and within the framework of the Act. Sub-
section (3) of Section 44 of the Act provides as follows:
"44(3) No act or proceedings of a Panchayat shall be deemed to be invalid on account of any defect or irregularity in any such act or proceeding not affecting the merits of the case or on account of any irregularity in the service of notice upon any member or for mere informality."
One must now have regard to the special position of the Sarpanch and Upa-
sarpanch of a panchayat. Under Section 38 of the Act, the executive power, for the purpose of carrying out the provisions of the Act and resolutions passed by a Panchayat, vests in the Sarpanch who shall be directly responsible for the due fulfillment of the duties imposed upon the Panchayat by or under the Act. In the absence of the Sarpanch, the powers and duties of the Sarpanch shall, save as may be otherwise prescribed by rules, be exercised and performed by the Upa-
sarpanch. Consistent with this pre-eminent position of the Sarpanch and the Upa-
sarpanch vis-a-vis the Panchayat, the Act makes special provisions for (1) election of Sarpanch and Upa-sarpanch, (2) resignation by Sarpanch and Upa-
sarpanch and (3) vacation of the office of the Sarpanch and Upa-sarpanch by motion of no confidence passed by the Panchayat. The motion of no confidence must be passed by a requisite majority. If the motion is so passed, the Sarpanch or Upa-sarpanch, as the case may be, subject to other safeguards such as ::: Downloaded on - 13/02/2014 23:10:11 ::: sat 22 lpa 312-2013.doc upholding the validity of the motion by the Collector and the Commissioner, shall be deemed to have vacated his office. The main idea behind the nature and design of the statute seems to be the electoral legitimacy of the office of the Sarpanch and Upa-sarpanch. If the elected Sarpanch or Upa-sarpanch has lost confidence of two third majority of the house of the Panchayat, he shall be deemed to have vacated his office. The whole object of this legislation will be defected if it is held that by reason of a formal defect, namely, though a motion of no confidence is carried by two third majority, member/s proposing the motion not formally moving or seconding it, as required by Rule 17, would render the motion invalid, defeating the will of the majority, and thereby the very object of the legislation.
24 There is one more aspect which must bear on the subject. Perusal of Section 35 shows that the meeting held thereunder is a special meeting, which is, unlike any other meeting, not presided over by the Sarpanch or Upa-sarpanch or any other member in their absence. It is presided over by the Tahsildar. The only purpose of that meeting is to consider the no confidence motion. The statute only lays stress on the carrying of the motion by a requisite majority. On the other hand, Rule 17 is part of sub-ordinate legislation and cannot be so interpreted as to negate the legislative intent of the principal legislation.
25 There is yet another important consideration. As held by the Supreme Court in the case of K. Narasimhaih (supra), the question whether the violation of the provision or irregularity prejudicially affected the proceedings has an important bearing on the subject. As in the case of K. Narasimhaih (supra), ::: Downloaded on - 13/02/2014 23:10:11 ::: sat 23 lpa 312-2013.doc even in our case there is an express provision (Section 44(3) of the Act quoted above) to the effect that no act or proceedings shall be invalid on account of any defect or irregularity not affecting the merits of the case. Can it be said that in the present case, the defect or irregularity affects the merits of the case? Are the proceedings of the meeting, which carried the motion by the requisite majority, prejudicially affected by the irregularity complained of? The answer must be a resounding no. The meeting of the Panchayat was attended by all members. All 13 members, who had given the notice of the no confidence motion, were present in the meeting. In their presence, the motion was proposed for voting by the presiding officer of the meeting. Everyone including the Sarpanch, against whom the motion was proposed, was allowed to freely participate in the meeting. A free and fair voting took place and the motion was carried by not less than two third majority. Failure to formally move and second the motion can hardly be said to prejudice anyone or affect the legitimacy of the whole exercise.
26 The judgment of our Court in the case of Janardan Shankar Watane (supra) (V.S. Desai and V.G. Wagle, JJ.) relied upon by the Division Bench in Vishnu Ramchandra Patil (supra) concerned the question of non-
compliance with Rule 2 of the No-Confidence Rules under the Act. The relevant rule, as it then stood, required that the special meeting under Section 35 of the Act ought to be held on the expiry of 7 days from the date of the receipt of the notice of no-confidence motion but before expiry of 15 days. It was contended that Rule 2 was merely directory and not mandatory. Whilst considering this question, the Court held that the right to move a motion of no-confidence was created by the Act which provided for the exercise of that right in the manner ::: Downloaded on - 13/02/2014 23:10:11 ::: sat 24 lpa 312-2013.doc prescribed by the rules and that where a statute gives a right to do so something in a given manner it can be done only in that manner and in no other. The rule of No-confidence Rules was held to be part of the right itself and as such considered mandatory and a resolution passed in contravention was held to be illegal. The judgment is clearly distinguishable and not applicable to observance of Rule 17 which is in the nature of a general rule of meetings of a Panchayat.
27 For all these reasons, we are in respectful disagreement with the view expressed by the Division Bench in the case of Vishnu Ramchandra Patil (Supra). In view of our disagreement, we frame the following issue to be referred to a larger bench:
"Whether failure to formally move and second a motion of no confidence as required by Rule 17 of the Bombay Village Panchayats (Meeting) Rule, 1959 would render the motion of no confidence carried by the requisite majority under Section 35 of the Bombay Village Panchayats Act, 1958, invalid?"
28 Let the papers be produced before the Hon'ble the Chief Justice under Chapter I Rule 7 of the Bombay High Court Appellate Side Rules, 1960 for constitution of a Full Bench for consideration of the aforesaid issue.
(S.C. Gupte, J.) (A.S. Oka, J.)
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