Bombay High Court
Kishor Eknath Patil vs The State Of Maharashtra Through The ... on 13 March, 2024
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.2870 OF 2024
Kishor s/o. Eknath Patil,
Age 55 years, Occu. Agril.,
R/o. Aardi, Anore, Taluka Amalner,
District Jalgaon .. Petitioner
Versus
1. The State of Maharashtra
Through the Secretary,
Rural Development Department,
Mantralaya, Mumbai-32
2. The Collector, Jalgaon,
District Jalgaon
3. The Sub Divisional Officer,
Amalner, District Jalgaon
4. The Tahsildar Amalner and
Presiding Officer in respect of
No Confidence Motion of
Grampanchayat Aardi Anore,
Taluka Amalner, District Jalgaon
5. Smt. Vandana Sanujay Patil
6. Smt. Varsha Bhagwan Patil
7. Smt. Lalita Kishor Patil
8. Smt. Pushpabai Raichand Patil
9. Narendra Patil Patil
10. Barku Senu Bhil
11. Prakash Narayan Wankhede
12. Ushabai Shivdas Patil
R/No.5 to 12, Occu. House maker,
R/o. Aardi Anore
13. The Gram Sevak,
Grampanchayat Aardi Anore,
Taluka Amalner, District Jalgaon
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Mr. Krishna Pratap Rodge, Advocate for Petitioner;
Mrs. M. L. Sangit, A.G.P. for Respondents No.1 to 4;
Mr. Paresh B. Patil, Advocate for caveator/Respondent No.9
CORAM : S. G. MEHARE, J.
DATE : 13-03-2024 PER COURT:- 1. Not on board. Taken on board.
2. Heard the learned counsel for the petitioner.
3. Issue notice to respondents, returnable on 27.03.2024.
4. Learned A.G.P. waives service of notice for respondents No.1 to 4.
5. Mr. Paresh B. Patil, learned counsel, appeared on the caveat of respondent No.9.
6. The petition has been filed against the rejection of proceedings for 'no confidence motion' Resolution.
7. Petitioner was a Sarpanch of the village. Village Panchayat Members had given notice of a no-confidence motion to respondent No.4/the Tahsildar on 27.10.2023. After receipt of the said notice, respondent No.4 convened the meeting of no- confidence motion on 02.11.2023. A no-confidence motion against the petitioner was passed by a majority of 7/9.
8. Against the said Resolution the petitioner preferred the petition under Section 35(3B) of the Maharashtra Village Panchayats Act, 1959 (the Panchayat Act for short) before 3 WP-2870-24.odt respondent No.2/the Collector, Jalgaon. Respondent No.2/Collector dismissed the petition on 29.02.2024. Against that order, the petitioner is before this Court.
9. The first submission of the learned counsel for the petitioner is, during the course of the proceeding of the 'no-confidence motion' against the petitioner, the right to speak to the petitioner was not granted. He also referred to the proceeding book and vehemently argued that after reading the allegations, the Presiding Officer directly took the proceeding for voting in favour of the no-confidence and then against the no-confidence. This proceeding nowhere shows that the right to speak was granted to the petitioner. It also does not reflect that the petitioner was denied the right to speak. To point out more material, the petitioner had sought time from respondent No.2/Collector on 27.02.2024. However, respondent No.2 observed that the time for additional say was wrong in law and closed the case for orders. He submitted that the petitioner was never heard. The Collector had framed the issue of whether the 'no-confidence motion' proceedings were properly conducted. However, he did not look at the mandatory provision of the right of a person to speak in such meetings. His serious grievance is that the Collector decided the petition hurridly. He also raised a serious objection that the Collector had invented a novel practice of calling for a report from respondent No.3/ Sub-Divisional Officer. Respondent No.3 has no 4 WP-2870-24.odt role to play in such proceedings. He also argued that the order sheet of the proceeding before the Collector nowhere reflects that the respondent advanced the oral arguments or submitted notes of written arguments. He specifically submitted that a copy of said notes of written arguments of the respondent was not served upon him. In violation of the right to speak in the meeting, the Resolution is bad in law.
10. To bolster his arguments, he relied on the judgment in the case of Manoj Ghanshyamdas Banode v. Presiding Officer/ Tahsildar, Dhamangaon Rly., Taluka, District Amravati, AIR ONLINE 2019 BOM 128, and vehemently argued that today at 2.00 p.m. the meeting for the election of Sarpanch has been scheduled. If the meeting is convened and a new Sarpanch is appointed, the very purpose of this petition would become infructuous. Hence, the said meeting may be stayed till the disposal of the present proceedings.
11. Per contra, learned A.G.P. and learned counsel for respondent No.9 submitted that the ground of no opportunity to speak has been raised for the first time before this Court. It was not a ground before respondent No.2/Collector. Learned counsel for respondent No.9 vehemently argued that the petitioner had participated in a no-confidence motion meeting. He never complained that he was not allowed to speak. He also did not make a written complaint to respondent No.4/Presiding Officer that 5 WP-2870-24.odt an opportunity to speak was denied. Once he participated in the proceeding, it is sufficient to believe that he had exercised his right to speak in the meeting. Therefore, sub-rule (2) of Section 35 of the Act has been complied with. There is no illegality in passing the impugned Resolution. He also vehemently argued that Article 243(O) of the Constitution of India debars the Court from staying the election of any Panchayat. It could not be questioned except by an election petition presented to such authority in such manner, and it is provided for by or under any law made by the Legislature of the State. He has vehemently argued that once the election process has commenced, the Court should not interfere. He also argued that in such cases, the process of election should be completed subject to the outcome of such petition pending before the Court. He relied on the judgment of this Court in the case of Nirmala w/o. Pandharinath Sarde (Shiralkar) vs. The State of Maharashtra and others, Writ Petition No.2114 of 2024, dated 22.02.2024 and, argued that once the Resolution has been passed by the majority, it cannot be questioned. He also relied on the judgment in the case of Savita Shrimant Ghule vs. Sangita Bibhishan Sanap and others, Writ Petition No.13310 of 2023, and argued that the Resolution of no confidence by the majority could not be doubted. The rule of the majority prevails over procedural defects. He submits that Rule 17 of the Meeting Rules is directory and not mandatory. He 6 WP-2870-24.odt vehemently argued that there was no illegality in the impugned order. Respondent No.2/Collector has considered almost all the grounds raised in the petition.
12. The Nagpur Bench of this Court had an occasion to deal with an identical issue. On the basis of not giving an opportunity to speak at the meeting, the Court has considered Rule 17 of the Village Panchayats Meeting Rules, 1959 (for short, "Rules of 1959") in paragraph No.22 that "therefore, principally because the petitioner was not heard before the Resolution was put to vote and also because the salutary procedure prescribed in Rules 17 to 26 of the Meetings Rules was not followed, the Resolution could not have been saved. The Court also reproduced the observation in paragraph No.20 of the case of Vijayram Ramchandra Katkar vs. Group Gram Panchayat, Pali, 2010(4) Mh.L.J. 497. The Hon'ble Division Bench considered the main issue as to whether a resolution of no confidence passed at a meeting in the course of which, members constituting to Village Panchayat were not permitted to speak, would be invalid. After considering the relevant provisions of the Act and Rules, the Court observed that every member of the representative body has a vital interest in the business which is transacted before that body and that the right of a particular member, who has been sought to be proceeded against on account of specific misconduct, cannot be equated or confused with the general right of all the members to 7 WP-2870-24.odt discuss and debate. The Court found that the weight of numbers is not an answer to the fundamental defect such as the one where a debate was stifled, and the Court could not countenance a suppression of a right to speak by a supposed justification on the basis of the numbers who cast their lot in support of a resolution.
13. In paragraph No.22 at the bottom, it has been observed that thereafter, Rules 22 and 25 provide for other aspects for conducting meetings, including fixation of the time limit within which a member shall end his speech. The minutes of the meeting recorded by respondent No.1/Tahsildar cum Presiding Officer in the present case do not record any of the aforesaid aspects, which would have demonstrated that the petitioner was granted a proper opportunity of speaking and that the members of the Gram Panchayat heard him without any disturbance on question of motion of no confidence. Therefore, for the above reason, the passing of the motion of no confidence against the petitioner was rendered vitiated.
14. In the case at hand, a copy of the proceeding book of the meeting, dated 02.11.2023, has been placed on record. Nowhere does it reflect that the opportunity was granted to the petitioner to speak, refused to speak, or made a submission in writing. The said proceeding of the meeting is silent about the right of the petitioner to speak in the meeting. To remain present in the meeting is a different thing. Barely remaining present in the meeting does not 8 WP-2870-24.odt mean that he or she took part in the proceeding at the meeting. The word in sub-section 2 of Section 35 of the Act that shall have a right to speak or otherwise to take part in the proceeding at the meeting clearly indicates that taking part in the proceeding means furnishing submission or addressing the meeting. The simple rule of a meeting is that everything that happened in the meeting should be recorded in the minutes of the meeting. It is the duty of the Presiding Officer to record the minutes of the meeting correctly and scrupulously. The minutes of the meeting are the record of the business transacted in the meeting. Such statutory body meetings have their importance. Every elected member has a right to make a statement. It is, thus, a place to make a statement, and it must be recorded if it is part of the subject of the meeting. At the cost of repetition, it is stated that there is no mention in the minutes of the meeting dated 02.11.2023 that the petitioner has exercised his right to speak or otherwise participated in the proceeding against the Resolution or he refused to speak. Therefore, the ratio of the case of Manoj (supra) is squarely applicable to the case at hand.
15. Learned counsel for respondent No.9 has tried his level best to convince the Court that the person present in the meeting, nobody has denied exercising his right. Since he did not exercise his right, it must be presumed that he has waived his right to speak. Since the petitioner has specifically raised the objection that no opportunity to speak was granted, his arguments cannot 9 WP-2870-24.odt be considered at this juncture. The case laws relied upon by him are on different issues. As far as Article 243(O), sub-clause (b) is concerned, it has been provided that no election of any Panchayat shall be called into question. Article 243 (P) of the Constitution of India has defined the term 'Panchayat, which means the Panchayat, constituted under Article 243(B). It has been further mentioned in clause (b) of Article 243(O) that the election of any Panchayat shall not be questioned except by election petition presented to such authority and any such manner as provided by option under any law made by the Legislature of the State.
16. Maharashtra State has legislated the law on the motion of no confidence. The State Legislature has conferred the rights upon the person against whom the no-confidence motion is moved to speak or to make a statement and exercise the right to speak. It is a statutory right of the said person. The State Legislature has also provided for a dispute/petition against the Resolution of no confidence. The Collector is the authority to examine the legality, propriety and correctness of the no-confidence motion resolution. Where the law prescribes to do a thing in a particular manner, it must be done in that manner only. Whether the right to speak was granted and not exercised must be reflected in the minutes of the meetings. Where the person against whom the resolution of no confidence was passed raises explicitly an objection that the right to speak was not granted, the burden shifts on the Presiding 10 WP-2870-24.odt Officer that the right to speak was granted or said person has denied such right. It is missing in this case. The Court is of the view that election of Panchayat under Article 243(O) of the Constitution, is the general election. A specific provision has been laid down in the Maharashtra Village Panchayats Act about the rights and procedure of no-confidence motion. The Court is doubtful whether Article 243(O) of the Constitution would apply to no-confidence motion. The issue is to be dealt with specifically under the Maharashtra Village Panchayats Act. There are various procedures for meeting minutes and mandatory compliance. The case of Manoj has discussed various cases, including the verdict of the Division Bench about not granting the right to speak in the meeting in the Sarpanch/Upa Sarpanch and held that giving no opportunity in the meeting vitiates the resolution.
17. Learned counsel for respondent No.9 has stated that let the election of a new Sarpanch be completed subject to the outcome of this Court. The Court is of the view that the election of a new Sarpanch is the outcome of the no-confidence motion against the petitioner and dismissal of his petition before the Collector. The Collector is the authority to direct the Tahsildar to call the meeting for the election of a new Sarpanch. The normal rule is that once the person has been elected, he cannot be deprived of enjoying his post. Therefore, this Court is not convinced that the election proposed for the election of a new Sarpanch may be allowed, 11 WP-2870-24.odt particularly when there is apparent illegality in passing of no- confidence motion against the petitioner. If the Court allows holding the meeting for the election of Sarpanch, it may generate new litigation. It is also the duty of the Court to control the litigation and at least ensure that there is no multiplication of litigation.
18. In view of the above discussion, the effect of the resolution dated 02.11.2023 passed against the petitioner and the order of respondent No.2/the Collector, Jalgaon, dismissing the petition is stayed. As a consequence of the stay to the impugned resolution, the meeting scheduled for the election of a new Sarpanch today at 2.00 p.m. became infructuous.
19. In addition to the regular mode of service, leave is granted to the learned counsel for the petitioner to serve the respondent/s privately. Hamdust allowed.
20. Learned A.G.P. to intimate this order to respondent No.4/the Tahsildar forthwith without waiting for the transcription of the dictation, which may take some time.
( S. G. MEHARE ) JUDGE rrd