Bombay High Court
Manoj Ghanshyamdas Banode vs Presiding Officer/Tahsildar ... on 21 January, 2019
Equivalent citations: AIRONLINE 2019 BOM 128
Author: Manish Pitale
Bench: Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Writ Petition No.1425 of 2017
...
Manoj Ghanshyamdas Banode,
Aged : 45 years,
Occupation: Agriculture,
R/o Talegao Dashasar,
Tah. Dhamangao Rly,
Dist. Amravati (Maharashtra) .. PETITIONER
.. Versus ..
1. Presiding Officer/Tahsildar,
Dhamangaon Rly., Taluka,
Dist- Amravati.
2. Village Panchayat,
Talegaon Dashasar-
Tq. Dhamangaon, Rly,
Dist.- Amravati
through Village Development
Officer.
3. Sachin Dayanand Ramgaonkar,
4. Vijay Ramchandra Gulhane
5. Purushottam Babarao Udhakhe,
6. Abdul Bashsir Shaikh Husain,
7. Dnyaneshwar Kisan Tilale,
8. Riyaz Kha Bhure Kha,
9. Sau. Bharati Ravikant Chute,
10. Sau. Prabha Digambar Takarde,
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11. Sau. Anita Raju Meshram,
12. Sau. Ranjana Padmakar Darwalkar,
13. Sau. Kalpana Dharmendra Dhakulkar,
14. Ku. Vidhya Duryodhan Athor,
15. Gajanan Gomaji Zite,
16. Sau. Nita Shrikant Akare,
17. Sau. Shital Vinay Choudhary,
18. Sau. Kalpana Rajendra Kusram,
All R/o 3 to 18 Major,
Occupation : Members,
Nos. 3 to 18 R/o Talegaon Dashasar,
Tq. Dhamangaon Rly,
Dist. Amravati.
19. Addl. Collector, Amravati,
Office of Collectorate, Amravati. .. RESPONDENTS
Mr. A.S. Shukla, Advocate for Petitioner.
Ms. T.H. Khan, AGP for Respondent No.1.
Mr. A.P. Kalmegh, Advocate for Respondent Nos. 3 to 6, 8, 10 to
13.
Mr. P.S. Gavai, Advocate for Respondent Nos. 15 to 18.
....
CORAM : MANISH PITALE, J.
DATE OF RESERVING JUDGMENT : DECEMBER 07, 2018.
DATE OF PRONOUNCING JUDGMENT : JANUARY 21 ,2019
JUDGMENT
1. Rule. Rule made returnable forthwith. Heard finally with the consent of the learned counsel appearing for the ::: Uploaded on - 21/01/2019 ::: Downloaded on - 22/01/2019 01:42:55 ::: 3 WP1425-17.odt parties.
2. The challenge in this writ petition is raised by the petitioner who was an elected Sarpanch of Gram Panchayat Talegaon Dashasar, to his removal from the said elected position in pursuance of a no confidence motion passed against him on 05.12.2016 by the members of the Gram Panchayat, in a meeting presided over by the Tahsildar and to the order dated 24.01.2017 passed by the Additional Collector, Amravati, whereby the dispute filed by the petitioner against passing of such no confidence motion, was dismissed. The contentions raised on behalf of the petitioner on the basis of the provisions of the Maharashtra Village Panchayats Act, 1958 and various Rules framed thereunder, are twofold. Firstly, that the petitioner was never granted an opportunity to address the members of the Gram Panchayat in the meeting held on 05.12.2016 in order to give his response to the charges levelled against him in the no confidence motion, thereby denying him a valuable opportunity in a democratic set up and secondly, that the voting on the said no confidence motion was held by show of hands and not by way of secret ballot, although 5 members of the Gram Panchayat had specifically demanded that voting be held by secret ballot. ::: Uploaded on - 21/01/2019 ::: Downloaded on - 22/01/2019 01:42:55 :::
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3. The facts of the present case are in a narrow conspectus. The petitioner and other members of Gram Panchayat Talegaon Dashasar, tahsil Dhamangaon Railway, district Amravati, were elected in an election held in May 2015 and thereafter the petitioner was elected as Sarpanch of the Gram Panchayat. On 01.12.2016, 13 members of the Gram Panchayat gave a notice for convening a special meeting for passing no confidence motion against the petitioner raising four charges against the petitioner. These pertained to the petitioner failing to take the members of the Gram Panchayat in confidence during performing work of the Gram Panchayat, failure on his part to immediately implement the works suggested by the members, failure on his part to utilise the funds received from the State for a period of about 10 to 11 months and causing harassment to residents and students by avoiding to give entries/documents to them for no particular reason. The respondent no.1-Tahsildar convened meeting on the said notice under Section 35(2) of the said Act on 05.12.2016 for considering the motion of no confidence against the petitioner. 17 members of the Gram Panchayat attended the said meeting, which was presided over by the respondent no.1. The respondent no.1 recorded minutes of the meeting ::: Uploaded on - 21/01/2019 ::: Downloaded on - 22/01/2019 01:42:55 ::: 5 WP1425-17.odt dated 05.12.2016 recording the fact that the petitioner and 4 other members submitted an application for holding voting by secret ballot, while 11 members submitted an application for taking the voting by show of hands. The application filed by the petitioner and 4 others was rejected while the application of the said 11 members was allowed and the voting was directed to be conducted by show of hands. The minutes of the meeting then recorded that there was discussion on the motion of no confidence and that 12 members voted in favour of the no confidence motion against the petitioner while 5 members voted against the same. On this basis, since 12 members voted in favour of the motion constituting more than 2/3rd majority of the total number of members entitled to sit and vote in meeting of the Gram Panchayat, the no confidence motion was held to have been passed against the petitioner.
4. Aggrieved by the said no confidence motion passed against him, the petitioner filed a dispute before the respondent no.19 Additional Collector, Amravati under Section 35 (3-B) of the said Act, raising inter alia, aforesaid two contentions to claim that the no confidence motion was unsustainable and that it deserved to be quashed and set ::: Uploaded on - 21/01/2019 ::: Downloaded on - 22/01/2019 01:42:55 ::: 6 WP1425-17.odt aside. In this dispute filed before the respondent No.19, the petitioner specifically stated that he was not given an opportunity to address the members of the Gram Panchayat in the said meeting held on 05.12.2016. This contention raised on behalf of the petitioner was recorded by respondent no.19 in the said impugned order dated 24.01.2017 and yet it was not discussed in the order.
5. By the impugned order dated 24.01.2017, the respondent no.19 dismissed the dispute filed by the petitioner under Section 35(3-B) of the said Act. The respondent no.19 held that voting conducted by show of hands by the respondent no.1 Tahsildar and Presiding Officer was justified and that no fault could be found with the same. The respondent no.19 further proceeded on the basis that even if there was some technical flaw in the proceedings of the meeting conducted on 05.12.2016, the petitioner was not entitled to any benefit therefrom, because 12 out of the 17 members of the Gram Panchayat had voted against him and the no confidence motion was validly passed.
6. Aggrieved by the same, the petitioner has filed the present writ petition.
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7. Mr. A.S. Shukla, learned counsel appearing for the petitioner, raised the twofold contentions already noted above and further contended that in a democratic set up when an elected representative was to be removed from office by way of motion of no confidence, it was necessary that such an elected representative like the petitioner herein, was granted sufficient opportunity of putting forth his views and explanation on the charges levelled against him in the no confidence motion. It was submitted that the minutes of the meeting dated 05.12.2016 recorded by the respondent no.1 Tahsildar/Presiding Officer merely recorded that discussion was undertaken and there were no details as to whether the petitioner was granted any opportunity of being heard by the Members of the Gram Panchayat on the subject of the no confidence motion. It was further submitted that a specific objection regarding the aforesaid issue was specifically raised before the respondent No.19- Additional Collector, wherein the respondent no.1 and others did not deny the assertion made by the petitioner. The respondent no.19- Additional Collector in the impugned order dated 24.01.2017 merely recorded the aforesaid issue raised by the petitioner and he failed to discuss the same or to give any finding. On this basis, it was ::: Uploaded on - 21/01/2019 ::: Downloaded on - 22/01/2019 01:42:55 ::: 8 WP1425-17.odt contended that the impugned order as well as the passing of the no confidence motion deserved to be quashed and set aside.
8. Apart from this, it was contended that voting in the present case ought to have been undertaken by secret ballot instead of show of hands. It was submitted that the application of the Bombay Village Panchayats (Meetings) Rules, 1959 in the present case was not justified and that since the Bombay Village Panchayats Sarpanch and Up-Sarpanch (No Confidence Motion) Rules, 1975 did not provide for the manner in which the voting was to be undertaken on a no confidence motion, the Bombay Village Panchayats (Sarpanch and Upa-Sarpanch) Election Rules, 1964 ought to have been applied as per law laid down by the Hon'ble Supreme Court in the case of Vipulbhai M. Chaudhary .vs. Gujarat Co-operative Milk Marketing Federation Limited and ors. - AIR 2015 Supreme Court 1960. The learned counsel placed heavy reliance on paragraph 53 of the said judgment of the Hon'ble Supreme Court in order to counter reliance placed on behalf of the contesting-respondents on Full Bench judgment of this Court in case of Tatyasaheb Ramchandra Kale .vs. Navnath Tukaram Kakde - 2014(6) Mh.L.J. 804. In support of the ::: Uploaded on - 21/01/2019 ::: Downloaded on - 22/01/2019 01:42:55 ::: 9 WP1425-17.odt aforesaid contentions raised on behalf of the petitioner, the learned counsel relied upon the following cases:-
(i) Shri Ashok Krishakant Mehta .vs. State of Maharashtra and ors. - AIR 2001 Bombay 55.
(ii) Vijay Ramchandra Katkar .vs. Group Gram Panchayat, Pali - 2010(4) Mh.L.J. 497.
(iii) Mr. Nivrutti Kashinath Bansode .vs. Gramsevak , Grampanchayat , Nazara - W.P.No. 6873 of 2008 Dt. 25.10.2008.
(iv) Ashok Vitthal Gabhane .vs. the Additional Commissioner - LPA 194/2007 in W.P.No. 3203/2007 dt. 12.09.2007.
(v) Gajanan Narayan Patil .vs. Dattatraya Waman Patil- AIR 1990 Supreme Court 1023.
(vi) Ansuyaben Raghavjibhai Parmar .vs. State of Gujarat Thro Secretary - LEX(GJH) 2012 10 59.
(vii) Surekha .vs. Nirmala - 2013(5) Mh.L.J. 710.
(viii) East Coast Railway .vs. Mahadeo Appa Rao- AIR 2010 Supreme Court 2794.
(ix) Vipulbhai M. Chaudhary .vs. Gujarat Co-
operative Milk Marketing Federation Limited - AIR 2015 Supreme Court 1960.
(x) Jaenendrakumar Phoolchand Daftari .vs. ::: Uploaded on - 21/01/2019 ::: Downloaded on - 22/01/2019 01:42:55 ::: 10 WP1425-17.odt Rajendra Ramsukh Mishra - (1994) 1 Supreme Court Cases 352.
(xi) Maruti Bandu Patil .vs. Village Panchayat, Sidhanerli- AIR 1981 Bom. 378.
(xii) Parbhawati Vijaykumar Khivasara .vs. State of Maharashtra - 2008(2) Mh.L.J. 274.
(xiii) Babubhai Muljibhai Patel .vs. Nandlal Khodidas Barot - (1974) 2 Supreme Court Cases 706.
(xiv) Sau. Vandana Vishnu Rajgure .vs. The Additional Collector, Amravati -
W.P.No.8145/2017 dt. 01.10.2018.
(xv) Navnath Gangadhar Dhockcaule .vs. The State of Maharashtra - W.P.No.7228 of 2014- dt. 23.09.2016.
9. On the other hand, Mr. A.P. Kalmegh, learned counsel appearing on behalf of respondent Nos. 3 to 6, 8, and 10 to 13 submitted that there was no substance in the contentions raised on behalf of the petitioner. It was submitted that a perusal of the minutes of the meeting held on 05.12.2016 clearly demonstrated that discussion was undertaken on the no confidence motion, wherein each member including the petitioner, participated. It was further submitted that the ::: Uploaded on - 21/01/2019 ::: Downloaded on - 22/01/2019 01:42:55 ::: 11 WP1425-17.odt aforesaid minutes of the meeting were signed by the petitioner also and that, therefore, he could not turn around and raise an objection in respect of the same. As regards voting by show of hands, the learned counsel for the said respondents submitted that a Full Bench judgment of this Court in the case of Tatyasaheb Ramchandra Kale .vs. Navnath Tukaram Kakde (supra) covered the field in their favour and the insistence of the petitioner in conducting the voting by secret ballot was not sustainable. The learned counsel further submitted that when the no confidence motion had been passed by a clear majority of more then 2/3rd members of the Gram Panchayat , the petitioner could not raise technical pleas to challenge the same. It was submitted that the petitioner had failed to demonstrate any prejudice suffered by him and, therefore, the writ petition was liable to be dismissed. The learned counsel for the respondents relied upon the following judgments:-
(i) Prabhawati Vijaykumar Khivsara .vs. State of Maharashtra and ors. - 2008 (2) Mh.L.J. 274.
(ii) Tatyasaheb Ramchandra Kale .vs. Navnath Tukaram Kakde - 2014(6) Mh.L.J. 804.
(iii) Bhaskar Laxmanrao Kadam .vs. Additional Collector , Nanded - 2013(6) Mh.L.J. 613.::: Uploaded on - 21/01/2019 ::: Downloaded on - 22/01/2019 01:42:55 :::
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(iv) Kishor Ramchandra Phalak .vs. Vilas Damodar Mahajan - 1997(3) Mh.L.J. 27.
10. Mr. P.S. Gavai, Advocate appeared for respondent Nos. 15 to 18 and Ms. T.H. Khan, learned AGP appeared for respondent No.1.
11. Heard learned counsel for the parties.
12. The first contention raised on behalf of the petitioner concerns lack of opportunity to him to speak on the no confidence motion and to give his views and explanation as regards the charges levelled against him in the no confidence motion. There cannot be any doubt about the fact that it is a valuable right of a person like the petitioner who is sought to be removed by a motion of no confidence, to give opportunity to him to address all members of the body, the Gram Panchayat in the present case, before voting on the motion is undertaken. It is quite possible that after a person like the petitioner is given an opportunity to present his views or explanation, the voting in the Gram Panchayat would be in a such manner that mandatorily required majority of 2/3rd of members would not be achieved for passing the motion of no ::: Uploaded on - 21/01/2019 ::: Downloaded on - 22/01/2019 01:42:55 ::: 13 WP1425-17.odt confidence to throw out an elected person like the petitioner out of office. This has been emphasised by this Court in its judgments in Shri Ashok Krishakant Mehta .vs. State of Maharashtra and ors. and Vijay Ramchandra Katkar .vs. Group Gram Panchayat, Pali, Mr. Nivrutti Kashinath Bansode .vs. Gramsevak, Grampanchayat, Nazara and Ashok Vitthal Gabhane .vs. The Additional Commissioner, Amravati (supra).
13. Some of the observations made by this Court in the aforesaid judgments are relevant. In Shri Ashok Krishakant Mehta .vs. State of Maharashtra (supra), the Division Bench of this Court has held as follows:-
"Section 35 expressly recognises that the Sarpanch against whom a resolution of no confidence is to be passed would be entitled to address the meeting. This requirement is embodied in the law as compliance with a basic principle of natural justice. A resolution of no confidence operates to remove a person from his position as Sarpanch or Upa- Sarpanch by expressing a lack of confidence in his ability to govern the affairs of the Village Panchayat. Bearing in mind the consequences of as well as the underlying basis for a resolution of no confidence, the law has incorporated a requirement of giving the Sarpanch or the Upa-Sarpanch, as the case may be, an opportunity of being heard before the members vote upon the resolution of no confidence."::: Uploaded on - 21/01/2019 ::: Downloaded on - 22/01/2019 01:42:55 :::
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14. In Vijay Ramchandra Katkar .vs. Group Gram Panchayat, Pali (supra), a learned Single Judge of this Court held as follows:-
"20. The learned Judge referred a judgment in the case of- Ashok Krishnakant Mehta Vs. State of Maharashtra & Ors. [2004(4) Mh.L.J. 197]. In that case a Division Bench of this Court was considering a motion of no confidence passed possibly in the same Pali village. A meeting was convened by the Tahsildar on 17 th December 1999 at which 16 out of 17 members of the Gram Panchayat were present. While the person against whom no confidence motion was moved was permitted to speak, other members, who sought to speak at the meeting, were denied permission by the Tahsildar. Six members left the meeting in protest against the decision of the Tahsildar not to allow them to speak at the meeting. The Division Bench considered the main issue as to whether a resolution of no confidence passed at a meeting in 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 a representative body has a vital interest in the business which is transacted before that Body and that the right of a particular member, who is sought to be proceeded against on account of specific misconduct, cannot be equated or confused with the general right of all the members to discuss and debate. The Court found that the weight of numbers is not an answer to the fundamental defect such as the one where debate was stifled and the court could not countenance a suppression of right to speak by a supposed justification on the basis of the numbers who cast their lot in support of a resolution.
21. Though in today's political scenario ::: Uploaded on - 21/01/2019 ::: Downloaded on - 22/01/2019 01:42:55 :::
15 WP1425-17.odt neither content of a speech, nor the forcefulness with which it is delivered, may have any bearing, on voting in a political body & such speeches may have been reduced to ritualistic empty formation, legally, it has to be presumed that elected representatives too make decisions after hearing all sides.
Therefore, unless all concerned are heard at such a meeting, the local self governing body cannot jump to the voting stage. The petitioner may not be a Mark Antony who by his legendary speech turned the tide after Julius Caesar was killed, but he could not have been denied the opportunity of being one, making an attempt to refute the charges and appeal to the conscience of those who were to vote him out. This right is recognized not only by the judgments which the learned counsel for the petitioner referred to but also in the Meeting Rules. Failure to follow this requirement would vitiate the resolution.
22. 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 Meeting Rules was not followed, the Resolution could not have been saved. The Collector and the Commissioner should have so held. The impugned orders upholding the resolution would therefore have to be quashed, as also the resolution itself.
15. In Nivrutti Kashinath Bansode .vs. Gramsevak, Grampanchayat, Nazara (supra), the learned Single Judge of this Court held as follows:-
"17. In my view, the judgment in the case of Ashok Krishnakant Mehta v/s State of Maharashtra & ors. (supra) is applicable to the present case on all fours. The petitioners were present at the meeting. They and other ::: Uploaded on - 21/01/2019 ::: Downloaded on - 22/01/2019 01:42:55 :::
16 WP1425-17.odt members who were present were not asked whether they wanted to speak at the meeting. In fact, no opportunity was given to them to speak at the meeting. The panchayat, being a vital cog in the wheels of governance, has to be run in a democratic manner. The underlying reason for permitting people to speak at a no confidence motion is that although several persons may have signed the resolution after discussion at the meeting convened for passing such a resolution, an individual may, on the basis of the discussion held, decide to vote against the motion. By this process, the members can make an informed decision to vote against a motion which may support the cause of the Sarpanch or the Upa-Sarpanch. It is possible that in such a process a no confidence motion would be defeated. But, when the members are not given an opportunity to have a healthy discussion or debate with respect to a no confidence motion, not only are the rights of the Sarpanch or the Upa-Sarpanch affected but also those of the members present and voting."
16. Applying the aforesaid position of law to the facts of the present case, it would be necessary to consider the minutes of the meeting dated 05.12.2016 written by the respondent no.1 Tahsildar/Presiding Officer. A perusal of the said minutes of the meeting dated 05.12.2016 show that the respondent no.1 has recorded the charges levelled against the petitioner in the notice for motion of no confidence. Thereafter, presence of 17 members of the Gram Panchayat is noted. Thereafter, it is held that the voting would be conducted by ::: Uploaded on - 21/01/2019 ::: Downloaded on - 22/01/2019 01:42:55 ::: 17 WP1425-17.odt show of hands and after that the respondent no.1 has stated the words "discussion was held on no confidence motion". It is then recorded that 12 members voted in favour of the no confidence motion by raising their hands and 5 members, including the petitioner, voted against the no confidence motion. Thus, other than the aforesaid words i.e. "discussion was held on no confidence motion" , it is not recorded at all as to in what manner the petitioner was given an opportunity to make his statement to put forth his views/explanation in respect of the allegations and charges levelled against him in the notice for motion of no confidence before the House and the members of the Gram Panchayat. There is nothing in the said minutes of the meeting to show that the petitioner was heard by the members of the Gram Panchayat before voting was conducted on the motion of no confidence. This clearly violates the mandate of the law as laid down in the above quoted judgments of this Court.
17. Another aspect relevant in the context of opportunity to be made available to a person like the petitioner against whom motion of no confidence has been moved, is the manner in which meeting of such a nature considering a motion of no confidence is to be conducted. Two Full Bench judgments of ::: Uploaded on - 21/01/2019 ::: Downloaded on - 22/01/2019 01:42:55 ::: 18 WP1425-17.odt this Court in the case of Viswas Pandurang Mokal .vs. Group Gram Panchayat, Shihu - 2011 (3) Mh.L.J. 500 and Tatyasaheb Ramchandra Kale .vs. Navnath Tukaram Kakde (supra) have held that when the specific rules pertaining to motion of no confidence i.e. the Bombay Village Panchayats Sarpanch and Upa-Sarpanch (No Confidence Motion) Rules, 1975, do not provide for the manner in which a meeting of no confidence is to be conducted, the Bombay Village Panchayats (Meetings) Rules, 1959, apply to such a meeting. It has been held that the said Bombay Village Panchayats (Meetings) Rules, 1959, would apply to such meetings insofar as they are not inconsistent with Section 35 of the aforesaid Act, being the substantive provision for motion of no confidence and the Bombay Village Panchayats Sarpanch and Upa-Sarpanch (No Confidence Motion) Rules, 1975. Therefore, it becomes evident that the Rules 21 to 25 are also applicable to a meeting considering motion of no confidence, which in the present case was the meeting dated 05.12.2016. Rule 21 of the Bombay Village Panchayats (Meetings) Rules, 1959, provides for the manner in which a member desiring to propose and discuss any motion shall rise in his seat when speaking and address his speech to the person presiding and further that he shall confine his speech strictly to the question ::: Uploaded on - 21/01/2019 ::: Downloaded on - 22/01/2019 01:42:55 ::: 19 WP1425-17.odt before meeting and that members shall not talk amongst themselves so as to disturb the proceeding when a member is speaking. Thereafter Rules 22 to 25 provide for other aspects of conducting the meeting, including fixation of reasonable time limit within which a member shall end his speech. The minutes of the meeting recorded by the respondent no.1 - Tahsildar/Presiding Officer in the present case do not record any of the aforesaid aspects, which would have demonstrated that the petitioner was granted proper opportunity of speaking and that he was heard by the members of the Gram Panchayat without any disturbance on the question of motion of no confidence. Therefore, for the said reason also the passing of the motion of no confidence against the petitioner is rendered vitiated.
18. It becomes all the more crucial because in the present case 2/3rd majority of members of the Gram Panchayat to successfully pass the motion of no confidence against the petitioner was achieved by a wafer-thin majority. The total number of members of Gram Panchayat was 17, 2/3rd of which comes to 11.33 and, therefore, even if one member would have voted against the motion of no confidence, it would not have been passed. The fact that the petitioner was deprived of an ::: Uploaded on - 21/01/2019 ::: Downloaded on - 22/01/2019 01:42:55 ::: 20 WP1425-17.odt opportunity to address the members of the Gram Panchayat, not only deprived the petitioner of his right to address the members in a democratic set up, but also deprived the members of the Gram Panchayat to take an informed decision while voting on the motion of no confidence. This vital aspect of the matter was completely ignored by the respondent no.19- Additional Collector while passing the impugned order dated 24.01.2017. The contesting respondents are not justified in claiming that when the majority of members were with them and the motion of no confidence had been passed by majority of 2/3rd members of the Gram Panchayat, no prejudice could be said to have been suffered by the petitioner. The fundamental defect in the manner in which the meeting dated 05.12.2016 was conducted cannot be overcome by sheer force of majority as claimed by the contesting respondents. Therefore, it is found that the meeting held on 05.12.2016, wherein the motion of no confidence was passed against the petitioner, was vitiated on the aforesaid ground and on this ground itself, the passing of the said motion on 05.12.2016 and the impugned order dated 24.01.2017 passed by the respondent no.19-Additional Collector deserve to be quashed and set aside.
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19. The second contention raised on behalf of the petitioner was that the voting conducted by show of hands in the meeting held on 05.12.2016 was unsustainable and that the voting ought to have been conducted by secret ballot. It was specifically contended that the Bombay Village Panchayats Sarpanch and Upa-Sarpanch (No Confidence Motion) Rules, 1975, do not provide for the manner in which voting was to be conducted on a motion of no confidence. On this basis, it was contended that when there was absence of any provision under the Act or the said Rules, the manner of voting on the motion of no confidence in the meeting held on 05.12.2016 should have been conducted in the manner in which voting is conducted under the Bombay Village Panchayats (Sarpanch and Upa- Sarpanch) Election Rules, 1964, because under Rule 10 thereof, voting for an election has to be done by show of hands but if any particular person at the time so demands, the voting has to be by secret ballot. In order to support the aforesaid contention, the learned counsel for the petitioner has relied upon paragraph 53 of the judgment of the Hon'ble Supreme Court in the case of Vipulbhai M. Chaudhary .vs. Gujarat Co-operative Milk Marketing Federation Limited and ors (supra), which reads as follows:-
"53. The co-operative society registered under the Central or the State Act is bound to ::: Uploaded on - 21/01/2019 ::: Downloaded on - 22/01/2019 01:42:55 ::: 22 WP1425-17.odt function as a democratic institution and conduct its affairs based on democratic principles. Democratic functioning on democratic principles is to be reflected in the respective Acts or Rules or Bye-laws both on the principle and procedure. If not, it is for the court to read the democratic principles into the Act or Rules or Bye-laws. If a procedure is prescribed in any Act or Rule or Bye-law regarding election of an office bearer by the Board, as defined under Article 243ZH(b) of the Constitution of India, and for removal thereof, by way of a motion of no confidence, the same procedure has to be followed. In case there is no express provision under the Act or Rules or Bye-laws for removal of an office bearer, such office bearer is liable to be removed in the event of loss of confidence by following the same procedure by which he was elected to office."
20. This was countered by the learned counsel appearing on behalf of the contesting respondents by contending that there were already aforesaid Full Bench judgments passed by this Court holding that the Bombay Village Panchayats (Meetings) Rules, 1959, were applicable to a meeting concerning motion of no confidence and that under Rule 28 thereof, voting is to be ordinarily taken by process of word of mouth or by show of hands but if majority of members present so decide, it can be taken by secret ballot. It was contended that in the present case majority of members had opted for voting by show of hands and, therefore, under the aforesaid Rules, the respondent no.1/ Presiding Officer had correctly ::: Uploaded on - 21/01/2019 ::: Downloaded on - 22/01/2019 01:42:55 ::: 23 WP1425-17.odt conducted voting on the motion of no confidence by show of hands. A perusal of the Full Bench judgments of this Court in the cases of Viswas Pandurang Mokal .vs. Group Gram Panchayat, Shihu and Tatyasaheb Ramchandra Kale .vs. Navnath Tukaram Kakde (supra) shows that it has been held in the said judgments that the Bombay Village Panchayats (Meetings) Rules, 1959 apply to a meeting of the Gram Panchayat considering a motion of no confidence . It has been specifically held that the said Rules would apply unless there was anything contrary in Section 35 of the said Act and the Bombay Village Panchayats Sarpanch and Upa-Sarpanch (No Confidence Motion) Rules, 1975. The contention raised on behalf of the petitioner that the said Full Bench judgments of this Court stand overruled by the judgment of the Hon'ble Supreme Court in the case of Vipulbhai M. Chaudhary .vs. Gujarat Co-operative Milk Marketing Federation Limited and ors (supra), is unsustainable because the Hon'ble Supreme Court has held that the office bearer of a Cooperative Society is liable to be removed in the event of loss of confidence by following same procedure by which he was elected to office, in the context of a situation where neither the relevant Act nor the Rules contained any express provision with regard to removal of an elected Chairperson or office bearer of ::: Uploaded on - 21/01/2019 ::: Downloaded on - 22/01/2019 01:42:56 ::: 24 WP1425-17.odt a Cooperative Society by motion of no confidence. In such a situation, the aforesaid observation was made in paragraph 53 of the said judgment quoted above.
21. But, in the present case, there is a substantive provision in the form of Section 35 of the said Act pertaining to motion of no confidence against the Sarpanch or Upa- Sarpanch and the aforesaid two Full Bench judgments of this Court have held that the Bombay Village Panchayats (Meetings) Rules, 1959, apply to such a meeting where a motion of no confidence is considered. The fact situation in the present case is clearly distinguishable from that in the case of Vipulbhai M. Chaudhary .vs. Gujarat Co-operative Milk Marketing Federation Limited and ors (supra), decided by the Hon'ble Supreme Court.
22. It is relevant that a Division Bench of this Court in the case of Kishor Ramchandra Phalak .vs. Vilas Damodar Mahajan (supra), has laid down that a motion of no confidence cannot be equated with the motion of election of a Sarpanch or Up-Sarpanch in the context of the said Act and Rules, and that voting by secret ballot can be permitted only if majority of members so desire under Rule 28 of the Bombay Village ::: Uploaded on - 21/01/2019 ::: Downloaded on - 22/01/2019 01:42:56 ::: 25 WP1425-17.odt Panchayats (Meetings) Rules, 1959. Therefore, it cannot be said that in the present case voting on the motion of no confidence ought to have been held by secret ballot by relying upon Rule 10 of the Bombay Village Panchayats (Sarpanch and Upa-Sarpanch) Election Rules, 1964. The aforesaid contention raised on behalf of the petitioner is rejected.
23. Yet, since the first contention raised on behalf of the petitioner has been found to be correct and the meeting dated 05.12.2016 has been held to be vitiated on account of absence of opportunity to the petitioner to speak in the meeting dated 05.12.2016, the present writ petition deserves to be allowed to that extent.
24. Accordingly, the finding rendered by respondent no.1
- Tahsildar/Presiding Officer that the motion of no confidence was passed against the petitioner, is quashed and set aside, the impugned order dated 24.01.2017 passed by the Additional Collector, Amravati, is also quashed and set aside. The respondent no.1 Tahsildar is directed to summon the 17 members of the Gram Panchayat who were present in the meeting dated 05.12.2016 by issuing appropriate notice to consider the no confidence motion. The meeting for ::: Uploaded on - 21/01/2019 ::: Downloaded on - 22/01/2019 01:42:56 ::: 26 WP1425-17.odt considering the said no confidence motion shall be held on 08.02.2019 at 11 a.m. Needless to say the result of voting on the said no confidence motion will decide as to whether the petitioner herein can continue as Sarpanch of the said Gram Panchayat.
25. Rule made absolute in the above terms with no order as to costs.
(Manish Pitale, J. ) ...
halwai/p.s.
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