Bombay High Court
Mandabai Balnath Rohom And Ors. vs Ashok Fakira Chandar And Ors. on 13 June, 2001
Equivalent citations: 2002(2)BOMCR772, 2002(1)MHLJ916
Author: R.M.S. Khandeparkar
Bench: R.M.S. Khandeparkar
JUDGMENT R.M.S. Khandeparkar, J.
1. Heard the learned Advocates for the parties. Perused the records.
2. Rule. Rule made returnable forthwith by consent.
3. The point which arises for consideration in this petition is -- whether under Sub-section (2) of the Section 35 of the Bombay Village Panchayats Act, 1958 (hereinafter called as "the said Act"), it is necessary to hold the meeting of the panchayat for considering the motion of no-confidence, of which the notice has been received by the Tahsildar under Sub-section (1) of Section 35 of the said Act, within seven days of the receipt of such notice or whether it only requires that a notice calling meeting of the panchayat should be issued within seven days of the receipt of the notice of no-confidence motion by the Tahsildar?
4. Few facts, relevant for the decision, are that the petitioners were elected as members of the Gram Panchayat, Khirdi Ganesh, taluka Kopergaon, District Ahmednagar in the elections held in the year, 1997 for a term of five years. The respondent No. 1 was elected as Sarpanch. On the allegations of mismanagement and misuse of the office of the Sarpanch, the petitioners submitted a notice in relation to motion of no-confidence against the respondent No. 1 to the Tahsildar under Section 35(1) of the said Act. The said notice was received by the Tahsildar on 9th February, 2000. The Tahsildar issued notice on 11-2-2000 convening the meeting of the panchayat on 21st February, 2000. Accordingly, the special meeting to deal with the motion of no-confidence against the respondent No. 1 was held on 21st February, 2000. The motion was passed by majority. The respondent No. 1, being aggrieved, made representation to the Collector of Ahmednagar under Section 35(3)(B) of the said Act, which came to be rejected by the Collector by its order dated 29-7-2000. The respondent No. 1 preferred an appeal against the order of the Collector in terms of the provisions contained in Section 35(3)(C) of the said Act and the same came to be allowed by the Additional Commissioner, Nashik by the impugned judgment and order dated 3-10-2000. Hence, the present petition.
5. Placing reliance upon the decision of the Full Bench of this Court in the matter of Chaitram Dagadoo v. Malegaon Panchayat Samiti and Ors. reported in 1965 Mh.L.J 663, the learned Advocate for the petitioners submitted that Section 35(2) of the said Act nowhere requires the meeting to deal with the no-confidence motion to be convened within the period of seven days of the date of receipt of the notice by the Tahsildar from the members under Section 35(1) of the said Act; in relation to no-confidence motion against the Sarpanch or Up-Sarpanch. Referring to para 7 of the judgment of the Full Bench, it was sought to be contended that the expression "convene" in Sub-section (2) of Section 35 of the said Act, means "call" or "summon" and does not mean to "hold". It was also contended that the decision of the Division Bench in an unreported case in the matter of Shri Ankush Kushaba Margaje v. State of Maharashtra and Ors., Writ Petition No. 2078/2000, dated 4-5-2000, is not a judgment as such, besides being delivered in ignorance of the Full Bench decision. It was further contended that though the decision in Chaitram 's case was in relation to Section 72 of the Maharashtra Zilla Parishads & Panchayat Samitis Act, 1961, hereinafter called as "the Samitis Act", the words used in Section 72 thereof and Section 35 of the said Act being the same, the said decision is fully attracted to the matter in issue. According to the learned Advocate for the petitioners, therefore, the Additional Commissioner, Nashik erred in setting aside the motion of no-confidence passed against the respondent No. 1, by misinterpreting the provisions of Section 35(2) of the said Act and, therefore, the impugned judgment is liable to be set aside.
6. On the other hand, referring to Rules of Interpretation and placing reliance upon the decisions of the Apex Court in the matters of the Board of Muslim Wakfs, Rajasthan v. Radha Kishan and Ors. , S. Mohan Lal v. R. Kondiah and Ram Narain v. The State of U. P. , it was contended that the ruling of the Full Bench in Chaitram's case in the matter of interpretation of Section 72 of the Samitis Act cannot be of any assistance in interpreting the provisions contained in Section 35(2) of the said Act. Reference was also made to the unreported decision of the Division Bench in Writ Petition No. 2078/2000 dated 4-5-2000. Drawing attention to the Village Panchayat Meeting Rules, 1959 (hereinafter called as "the meetings rules") and more particularly, Rule 4 and 5(2) thereof, it was contended that special meeting can be convened within a period of one day whereas ordinary meeting can be convened within a period of three days and, therefore, interpretation sought to be given to Section 72 of the Maharashtra Zilla Parishads and Panchayat Samitis Act, which in turn, refers to Sections 49 and 111 of the Samitis Act, which require minimum ten days notice in relation to a special meeting, the said decision cannot be of any help while interpreting Section 35(2) of the said Act.
7. Section 35(1) of the said Act provides that:--
"(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 Up-Sarpanch after giving such notice thereof to the Tahsildar as may be prescribed."
It also further provides that once such notice is given, it shall not be withdrawn. Sub-section (2) thereof, which is relevant for the decision in the matter, reads thus:--
"(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 Up-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."
8. Before considering the rival contentions of the parties, it would be also necessary to peruse some other provisions of law relevant for the decision in the matter. Section 176 of the said Act empowers the State Government to make rules for carrying into effect the purposes of the said Act and Sub-section (2) thereof specifically provides for various instances in which case, without prejudice to the generality of the provisions contained in Sub-section (1) of said Act, the government may frame the rules. Accordingly, the Government can frame rules prescribing forms of notice, time and place of sitting and procedure to be followed at meeting of the panchayats as well as all matters for which rules are required to be made and generally, for carrying out the purposes thereof. The Government has framed various rules including the said rules which are in relation to the village panchayat meetings. The Government has also framed the Bombay Village Panchayats Sarpanch and Up-Sarpanch (No-confidence Motion) Rules, 1975, hereinafter called as No-confidence Motion Rules. The Rule 4 of the said Rules provides that the Secretary shall, at least three clear days before the date fixed for any ordinary meeting, or for any meeting called under Sections 28, 33 or 43, send or cause to be sent to all the members intimation of the date, time and place of and the business to be transacted at such meeting. Rule 5(1) of the said Rules provides that the Sarpanch, or in his absence the Up-Sarpanch, may, on his own motion, call a special meeting of the panchayat at any time or on the written requisition of not less than half the number of the members or of the Standing Committee, Panchayat Samiti, or the Chief Executive Officer, or of any officer authorised in that behalf by the Standing Committee, or Panchayat Samiti or Chief Executive Officer by a general or special order, shall call such special meeting within eight days from the date of the receipt of such requisition. Sub-Rule (2) of Rule 5 of the said Rules provides that the Secretary shall, at least one clear day before the date fixed for a special meeting, send or cause to be sent to all the members intimation of the date, time and place of such special meeting and of the business to be transacted thereat. In other words, the rules regarding ordinary and special meetings of the village panchayat provide that the ordinary meeting can be convened within a period of three days whereas the special meeting can be convened within a period of one day. At the same time, Rule 2(1) of the No-confidence Motion Rules, provides that the members of a panchayat who desire to move a motion of no-confidence against the Sarpanch or the Up-Sarpanch shall give notice thereof in the form appended to the said rules 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 Up-Sarpanch, they shall give two separate notices. Sub-rule (2) of Rule 2 thereof provides that 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 Up-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. Sub-rule (3) of Rule 2 of the No-confidence Motion Rules provides that 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.
9. Section 72(2) of the Samitis Act, which was the subject matter of interpretation in Chaitram's case, was at the relevant time as under :--
"(2) The Chairman of a Panchayat Samiti shall convene a meeting of the Panchayat Samiti consider such motion within ten days of the receipt of the notice."
Sub-section (1) of Section 72 as it was then, provided that:--
"(1) A motion of no-confidence in the Chairman or Deputy Chairman of a Panchayat Samiti may be made by a requisition from not less than one-fourth of the total number of the members other than associate members after giving a notice thereof in such form and in such manner as may be prescribed by the State Government."
Sub-section (4) of Section 72 at the relevant time, provided that:--
"(4) If no such meeting is convened by the Chairman of a Panchayat Samiti within the period specified in Sub-section (2), all or any of the members who have given notice of motion of no-confidence, may forward to the Commissioner a copy of the notice together with a copy of the motion and request him to convene a meeting of the Panchayat Samiti. The Commissioner shall within ten days of the receipt of such communication by him, convene the meeting of the Panchayat Samiti for the consideration of the motion at the office of the Panchayat Samiti at a time appointed by him, and shall authorise such person as he deems fit to preside over such meeting."
10. Plain reading of Section 35(2) of the said Act discloses that the action on the part of the Tahsildar which is contemplated under Sub-section (2) of Section 35 is expected within a period of seven days. The question which arises for consideration is whether this action is restricted to the issuance of notice convening meeting to deal with the no-confidence motion or would also include holding of such meeting itself. As already observed above, the Government has framed No-confidence Motion Rules, which deals with the procedural aspect of the proceedings relating to no-confidence motion as and when moved by the members of the panchayat. Sub-rule (3) of Rule 2 of the said No-Confidence Motion Rules cast duty upon the Tahsildar to act swiftly on receipt of the notice under Section 35(1) of the said Act. It provides, as observed above, that 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 who are for the time being entitled to sit and vote at any meeting of the panchayat. The said Sub-rule further provides that on such immediate satisfaction of the Tahsildar regarding the notice having been given by not less than one-third of the total number of members who are for the time being entitled to sit and vote at any meeting of the panchayat, shall convene a special meeting for the purpose within seven days from the date of receipt of such notice. If one reads Section 35(2) of the said Act along with the Sub-rule (3) of Rule 2 of the said No-confidence Motion Rules, it is apparent that the action on the part of the Tahsildar, which is contemplated under Sub-section (2) of Section 35 of the said Act is not only restricted to the issuance of notice but, also relates to the holding of meeting of the Panchayat pursuant to the receipt of notice by him under Section 35(1) of the said Act. At this stage, it is also to be noted that the Meetings Rules, provide for a period of three days for convening an ordinary meeting and one day for convening special meeting. It cannot be disputed that the meeting to deal with the No-confidence Motion has to be a special meeting and in fact, it is so described in Sub-rule (3) of rule 2 of the said No-confidence Motion Rules. The expression "Special meeting" found in the Rules framed under various provisions of the Section 176 of the said Act, is to be given same meaning in all such rules framed by the government under the said Act, unless the context requires otherwise. The expression used in subsection (2) of Section 35 of the said Act regarding such meeting dealing with the No-confidence Motion, is also "special meeting". The said expression has not been defined either in the Act or the Rules made thereunder. However, the very expression itself signifies that it is the meeting convened for a very purpose which is not usual or common but exceptional in nature or being for specific purpose. Besides, while interpreting the provisions broadly relating to the No-confidence Motion and procedure in relation thereto in Panchayat, one cannot forget the following observations of the Full Bench in Chaitram's case ;
"We must not so interpret the provisions of the Act as to defeat the intention of the Legislature that a person who had lost the confidence of the members should not continue in office."
11. From the fact that the Section 35(2) of the said Act specifically provides an action on the part of the Tahsildar within time frame programme and further the legislative intention being made clear by the rules made under the said Act to the effect that the Tahsildar has to act immediately upon receipt of such notice under Sub-section (1) of Section 35 and has to get himself satisfied that the notice has been given by not less than one-third of the total number of members who are for the time being entitled to sit and vote at any meeting of the panchayat and thereupon, shall convene special meeting for the purpose for which the notice was served within seven days from the date of receipt of the notice, disclose that not only the issuance of notice for convening special meeting has to be issued within seven days but, the such meeting also should be held within seven days of the receipt of the notice by the Tahsildar. Considering the provisions relating to the period prescribed for holding ordinary and special meeting in the Meetings Rules, which provide for three days for ordinary meeting and one day for convening special meeting and Sub-rule (3) of Rule 2 of the No-confidence Motion Rules provides for convening the meeting within seven days from the date of receipt of notice, it is to be held that such meeting is necessarily to be held within seven days. That apart, Section 35(2) of the said Act, on the face by itself provides that action of the Tahsildar of issuing notice as well as holding meeting is to be within the period of seven days. That's why Sub-section (2) of Section 35 of the said Act opens with the expression "within seven days from the date of receipt". It is to be noted that the expression "convene" in Section 72(2) of the Samitis Act, has been interpreted by the Full Bench bearing in mind the provisions contained in Section 49 as well as 111 along with the said Section 72 of the Samitis Act. It has been observed therein thus:--
"Sub-section (2) of Section 49 almost in the same terms as Subsection (2) of Section 72. This required the President to convene a special meeting of the Zilla Parishad to consider the motion of no-confidence within ten days of its receipt. Under Sub-section (4) of Section 111, ten days notice of a special meeting has to be given. If, therefore, the word "convene" implied that the meeting must be held within ten days, then it would have not been possible to hold any meeting for considering a motion of no-confidence, for if the meeting was to be held within ten days, then clear days' notice of it could not have been given and if notice of a shorter period was given, the meeting would have been illegal, see Haribhau v. State. The above meaning did not, therefore, fit in in the context, for it would have made Section 49(2) ineffective and nugatory. On the other hand, if "convene" in this provision meant call or summon, then it was possible to hold the special meeting after giving the requisite notice. The Legislature could not have used this word in a sense in which it would have made the section inworkable. It follows that in Section 49(2) "convene" meant call or summon; and it must bear the same meaning in Sub-sections (2) and (4) of Section 72, because the same word cannot have two different meanings in two provisions of the same Act almost identical in terms and enacted for the same purpose."
12. It was sought to be contended that the rules relating to convening of the meeting do not apply to the meetings held to deal with the No-confidence Motion and rules which are to be applied to such cases are No-confidence Motion Rules, 1975. There cannot be a dispute that the procedure to be followed while dealing with the No-confidence Motion is prescribed under the No-confidence Motion Rules. However, those rules themselves and in particular, Sub-rule (3) of Rule 2 provide that the special meeting for the purpose shall be convened within seven days from the date of the receipt of such notice. The expression "special meeting" under these rules, cannot have a different meaning than the same would have in other rules framed under the provisions of Section 176 of the said Act, unless the context otherwise requires. The Meetings Rules, deal with ordinary meeting as well as special meeting and in case of special meeting, there is specific provision that such a meeting can be convened within a period of one day. No doubt, those rules prescribe notice in that regard to be issued by the Secretary, but it cannot be ignored that in terms of those rules, special meeting can be held within a period of one day. Issuance of notice is meant to convey the fact of scheduled meeting to the members. It is immaterial whether it is issued by the secretary or Tahsildar as those notices will have to be issued by different authorities in accordance with the authority in that regard given by various provisions in the statute and rules made thereunder. However, the fact remains that the special meeting can be convened within a period of one day. The intention of Legislature under Section 35 of the said Act is clear that when the notice regarding No-confidence Motion is served upon the Tahsildar, the Tahsildar has to act swiftly and immediately and has to get himself satisfied that such notice has been served by one-third of the total number of members of the panchayat, and thereafter, to hold necessary meeting to deal with such motion.
13. As rightly submitted by the learned Advocate for the respondents, the Full Bench decision deals with Section 72(2) of the Samitis Act. The provisions therein cannot be considered to be in pari materia with the provisions contained in Section 35(2) of the said Act and the ruling therein cannot be applied for interpretation of Section 35(2) of the said Act. The said decisions, which are sought to be relied upon by the learned Advocate for the respondent are relating to the law of interpretation of statutes wherein it has been held that :--
"It is not a sound principle of construction to interpret expressions used in one Act with reference to their use in another Act, and decisions rendered with reference to construction of one Act cannot apply with reference to the provisions of another Act, unless the two Acts are in pari materia. Further, when there is no ambiguity in the statute, it may not be permissible to refer to, for purposes of its construction, any previous legislation or decisions rendered thereon."
14. It cannot be also disputed that the order dated 4-5-2000 in Writ Petition No. 2078 of 2000 does not lay down any broad proposition of law nor it can be considered as a judgment, as rightly contended by the learned Advocate for the petitioner. However, the fact remains that the Division Bench of this Court has also taken the view that Section 35(2) of the said Act provides that the meeting should be convened within seven days from the receipt of notice by the Tahsildar. In the said case, the notice under Section 35(1) was received by the Tahsildar on 15-11-1999. The Tahsildar issued notice on 16-11-1999 convening the meeting on 30-11-1999. It was held that the meeting having been convened beyond the period of seven days from the receipt of the notice, it was not held in accordance with the provisions of law contained in Section 35(2) of the said Act.
15. The point for consideration, therefore, has to be answered as under:--
"Section 35(2) of the said Act requires that the Tahsildar shall not only issue the notice convening the meeting within seven days but, also convene the meeting itself within seven days to deal with the matter pertaining to the No-confidence Motion in terms of notice received by him under Section 35(1) of the said Act."
16. Reverting to the facts of the case in hand. Undisputedly, the Tahsildar had not convened the meeting within seven days from receipt of the notice under Section 35(1) of the said Act. Being so, no fault can be found with the impugned order passed by the Additional Commissioner on 3rd October, 2000 and, therefore the said judgment and order does not deserve to be interfered with. Petition is, therefore, dismissed. Rule is discharged with no order as to costs.