Bombay High Court
Kishore S/O Ramchandra Phalak vs Vilas S/O Damodar Mahajan And Ors. on 30 January, 1997
Equivalent citations: 1997(4)BOMCR439
Author: R.G. Deshpande
Bench: R.G. Deshpande
JUDGMENT N.P. Chapalgaonker, J.
1. Heard Shri S.R. Barlinge, Advocate for the petitioner, Shri S.A. Kulkarni, Advocate for the respondent Nos. 1 to 9 and Shri V.D. Sapkal, A.G.P. for respondent Nos. 10 and 12. Respondent No. 11 is deleted with the leave of the Court.
2. Petition raises a short question whether it is imperative on the part of the Presiding Officer to record the votes by ballot on a motion expressing no confidence of the Sarpanch under the Bombay Village Panchayats Act, 1958 in the absence of statutory rule to that effect.
3. In exercise of the powers under section 176 r/w section 33(2) of the Bombay Village Panchayats Act, 1958 (hereinafter referred to as 'the Act' for the purpose of brevity), State Government has framed two different sets of Rules, one governing the election of the Sarpanch and Up-Sarpanch, established under the Act and the other governing the motion of no confidence against those functionaries. The first set of the Rules of 1964 specifically provides that voting shall be by show of hands, if, however, any member present in the meeting so demands the voting shall be by ballot. This specific provision in Rule 10(2) of the Bombay Village Panchayat (Sarpanch and Up-Sarpanch) Elections, Rules, 1964, makes it imperative for the Presiding Authority to record the votes by secret ballot in case any member of the Panchayat so demands. Such a provision is not there in the Bombay Village Panchayat Sarpanch and Up-Sarpanch (No Confidence Motion) Rules, 1975. In fact, those Rules do not provide for any special procedure in respect of recording of the votes of a motion expressing no confidence on the elected office bearers of the Village Panchayat. When no special procedure is prescribed, the general procedure prescribed for the meetings would be applicable. Rule 29(1) of the Bombay Village Panchayats (Meeting) Rules, 1959 lays down that the votes shall ordinarily be taken by word of mouth or by show of hands, but if majority of the members decide to be taken by ballot. It, therefore, follows that the general procedure laid down for the business of the panchayat meetings requires that the voting shall be recorded either by voice vote or by show of hands and if the majority of the members so decide, then only by ballot. It is not the case of the parties before us that there was a majority decision to record the votes by ballot on a motion expressing no confidence on the Sarpanch, impuged in this writ petition.
4. Shri Barlinge, learned Counsel for the petitioner submits that the purpose for providing the secret ballot while electing the Sarpanch and Up-Sarpanch, if any of the members so demands, is to ensure free exercise of the franchise without any coersion or pressure. The same is expected about the voting while expressing a no confidence and, therefore, to ensure that members vote freely, the same provision should be read in the Rules in absence of any specific provision contrary to the same. The first proposition is not acceptable on the face of it for the reason that election of Sarpanch is a normal and obligatory function of the members of the panchayat at the beginning of their term wherein they should be free to elect the office bearers of their choice and if any member is apprehensive that he may be penalised or prized for exercising his franchise in a particular way, he can ask for a secret ballot. A motion of no confidence stands on a different footing. It is true that often the undemocratic methods are used to influence the voting in one way or the other. But it is for the Legislature and if the powers are so delegated then for the State to lay down as to what particular procedure should be followed on a particular occasion. We cannot read something in the Rules which is not there. This would be re-reading the Rules which is not permissible.
5. The Division Bench of the Andhra Pradesh High Court considered the submission, which is required to be dealt with by us, in the case of (P. Raghava Reddi), . The learned Judges were pleased to observe :
"A resolution expressing want of confidence in a president cannot be equated to an election to the office of the President. Section 33 clearly shows that a duty is cast on those who are signatories to the motion to speak openly and state the reasons for their attempt to dislodge a member who has been duly elected to the office of the President. Those opposing the motion have also a right to refute the charges levelled against the President. Therefore no secrecy is attached nor such secrecy is intended when a no-confidence motion comes up for consideration or discussion. There is an open debate. It is for that reason that the secrecy of the ballot is waived under the Rules and open ballot is introduced."
The procedure for the no confidence starts with a requisition to be signed by one third or more members of the panchayat. They have to openly come out against the existing Sarpanch and the motion is to be supported by requisite number of members. Rules of 1975 also require that the reasons for expressing the no confidence also to be given. In the notice of motion, if the reasons are to be given and they are to be discussed in the meeting, it is expected that the members would be fearless and would express whatever their opinion is about the functioning of the concerned office bearers. For all these reasons, we do not think that a motion of no confidence can be equated with the motion of electing a Sarpanch or a Up-Sarpanch. The exercise of the powers to frame the Rules by the State Government cannot be assailed on the ground that the State has chosen to frame different Rules, firstly for electing a Sarpanch and Up-Sarpanch and secondly for expressing a no confidence on them. These were two different situations and were dealt by the State Government separately.
6. The learned Single Judge of the Rajasthan High Court has also taken a view in the case of Hukam Singh v. State of Rajasthan and others, , that the method adopted by the Presiding Officer to record the votes by signatures for and against the vote of no confidence does not vitiate the resolution.
7. Shri Barlinge invited our attention to the judgment of this Court in the case of Maruti Bandu Patil v. Village Panchayat Sidhnerli and others, reported in 1981 Mah. L.J. 255. He specifically relied on the observations made by this Court in para 5 of the said judgment to the following effect :
"To keep the election process free and fair mode of poll by secret ballot has been introduced in all civilised societies and nations. Secrecy of vote is the fundamental principle of election in all democratic forms of local Governments. This also helps to maintain purity of election. This is the object behind the provision as made in Sub-Rule (2) of Rule 10."
Observing thus, this Court held that the provision of Sub-Rule (2) is mandatory and by-passing it would invalidate the very election. The observations will have to be understood in the context in which they are made. A specific provision made in rule was required to be considered to find out whether it is directory or mandatory, and it was found that the provision is beneficial to get the election process free and fair and, therefore, this Court held that the provision will have to be held to be mandatory. When the provision is not so made, it would not be proper on our part to hold that a particular procedure should have been applied by the Returning Officer in the absence of any such requirement by the Rules. It is always open for the State to consider the matter and reframe the Rules, but in the circumstances, we do not feel that the impuged resolution can be assailed on the ground that the votes were not recorded by the secret ballot.
8. Writ Petition, therefore, deserves to be dismissed. We accordingly pass the order to that effect. Petition dismissed. Rule discharged. No costs.