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1. Rule, returnable forthwith. Learned Counsel for the Respondents waives service. By consent taken up for hearing and final disposal.

2. The Petitioners are elected members of the Gram Panchayat of Chimbli in the Taluka of Khed in the District of Pune. The First Respondent in Writ Petition No. 5114 of 2003 is the Sarpanch while the First Respondent in companion Writ Petition No. 5115 of 2003 is the Upa Sarpanch. On 25th February 2003, the Petitioners issued a requisition to the Tahsildar, Khed in their capacity as members of the Gram Panchayat proposing to move a motion of no-confidence against the Sarpanch and the Upa Sarpanch. The notice spelt out the reasons on the basis of which the requisitionists had decided to move the motion. Immediately thereafter on 25th February 2003, the Tahsildar addressed notices to all the members of the Gram Panchayat including the Sarpanch and the Upa Sarpanch recording that a requisition had been received from Shri Pandurang Vishnu Bankar and five other members of the Panchayat for moving a motion of no confidence against the Sarpanch and Upa Sarpanch. The Tahsildar intimated that he had convened a meeting on 4th March 2003 at 3 p.m., in the office of the Gram Panchayat is pursuance of the aforesaid notice, a meeting was held on the appointed day in which the Sarpanch and the Upa Sarpanch participated. A resolution of to confidence was passed by a majority of six members voting in favour thereof. Three members of the Gram Panchayat including the Sarpanch and the Upa Sarpanch voted against the resolution.

6. While considering the position in law it would be necessary at the outset to analyse the provision of Section 35. A motion of no confidence has to be moved by not less than one-third of the total number of members of the Gram Panchayat who are for the time being entitled to sit and vote in a meeting. Sub-section (1) of Section 35 stipulates that the motion can be moved after a notice is furnished to the Tahsildar as may be prescribed. To reiterate, therefore, what the Act mandates is that (i) the motion has to be moved by at least one-third of the total members of the panchayat entitled to sit and vote; and (ii) the motion may be moved after giving notice to the Tehsildar as prescribed. Therefore, what has to be prescribed by the rules what has in feet been prescribed by Sub-rule (1) of Rule 2 of the Rules is the form in which a notice has to be furnished by the requisitionists to the Tahsildar. The form that has been laid down requires the members of the Panchayat who have sought to move the motion to intimate the Tahsildar that they propose to move a motion of no confidence in a meeting of the Panchayat for reasons which arc spelt out therein. The facts which are stated therein have to be decided to be true to the 'best of information and knowledge' of the members moving the motion. Sub-section (2) of Section 35 then stipulates that within a period of seven days of the receipt of a notice under Sub-section (1), the Tahsildar must convene a special meeting of the Panchayat for considering the motion at the office of the Panchayat at a time to be appointed by him. The Sarpanch or Upa-Sarpanch against whom a motion of no confidence is moved has a right to speak or otherwise take part in the proceedings of the meeting including the right to vote. The motion has to be carried by a majority of not less than two-thirds of the total number of members who are for the time being entitled to sit and vote at any meeting of the panchayat. The Sarpanch or the Upa-Sarpanch, as the case may be, shall cease to hold office upon the expiry of seven days unless in the meantime, the validity of the motion has been disputed under Sub-section (3B). Sub-section (3B) entitles the Sarpanch, or as the case may be, the Upa-Sarpanch to dispute the validity of the motion within a period of seven days before the Collector. The decision of the Collector is subject to a further appeal to the Commissioner.

7. The essence of a motion of no confidence is the expression by the elected members of a legislative body of a want of confidence or faith in the person or persons against whom the motion is moved. A motion of no confidence is not a removal for misconduct and it is not in the nature of disciplinary action adopted on account of charges of misbehaviour. A motion of non-confidence is what it states it is : an expression of a lack of confidence in the person. On the other hand, and in contradistinction to a motion of no confidence, the Act makes provisions for the removal of a member of the Gram Panchayat in Section 39. Section 39 contemplates the removal of any member of the panchayat, the Sarpanch or Upa-Sarpanch where he is guilty of (i) misconduct in the discharge of his duties; or (ii) of a disgraceful conduct; or (iii) neglect or incapacity to perform his duty; or (iv) where such person is persistently remiss in the discharge thereof. The provision for removal has to be distinguished from an expression of no confidence. A removal is a disciplinary measure and in view of the well settled position in law, a removal has to be on stated grounds after holding an enquiry. An enquiry is in fact, provided by Sub-section (1) of Section 39. On the other hand, a motion of no confidence is the ultimate expression by the members of a collective body, of the expression of a lack of faith in the person against whom that motion is moved.

Hence even if the form which is prescribed by the statute requires that the ground for misconduct be mentioned in the notice of intention to move the motion, it does not follow therefrom that the actual ground must be specified when the motion is passed.

9. Under the Bombay Village Panchayat Act, 1958, what is made mandatory is (i) The moving of a motion of no confidence by a stipulated number of members of the Gram Panchayat (one third); (ii) Those who move the motion must be entitled to sit and vote at a meeting of the panchayat; (iii) The furnishing of a notice of requisition to the Tahsildar as prescribed; (iv) The convening by the Tahsildar of a special meeting of the Panchayat within a period of seven days of the receipt of the notice at the time and place specified; (v) The entitlement of the Sarpanch and Upa-Sarpanch to speak or to otherwise participate in the proceedings and to vote upon the resolution; and (vi) The passing of the motion by a majority of not less than two-thirds of the total members of the panchayat entitled to sit and vote. The provisions which the legislature considered as being mandatory in order to constitute a valid motion of no confidence have been specified in Sub-sections (1), (2) and (3) of Section 35. While construing the rules what must be borne in mind is that Ac Act mandates the giving of a notice to the Tehsildar as prescribed. In construing as to which part of the rules is mandatory, regard must be had to the provisions of the parent legislation because the legislature has indicated in clear terms therein those provisions in respect of which a punctilious compliance is expected. The members of the Gram Panchayat who seek to move a motion of no confidence against the Sarpanch or Upa-Sarpanch or both are acquired to furnish a notice of their intention to do so to the Tahsildar. Before he convenes the meeting, the Tahsildar has to be satisfied that the motion has been moved by one-third of the total number of members entitled to sit and vote. The Act then provides that the Tahsildar most convene a meeting of the Panchayat for considering the motion within a period of seven days. When he convenes a special meeting of the Panchayat, the Tahsildar furnishes an intimation to the members of the Panchayat including the Sarpanch and Upa-Sarpanch of the convening of the meeting. Sub-section (2) of Section 35 requires the Tahsildar to convene a special meeting of the Panchayat for considering the motion and it is implicit therein that an intimation has to be furnished to all members of the Panchayat including the Sarpanch and Upa-Sarpanch who are sought to be proceeded against, in the event that the Sarpanch and the Upa-Sarpanch seek, in addition, copies of the actual requisition that has been issued by the members of the Panchayat, it is open to them to move the Tahsildar by submitting an application. However, it would be impermissible for the Court to hold that resolution which has been duly passed by a two thirds majority, upon a requisition moved by one third of the members of the panchayat eligible to sit and vote, at a meeting convened by the Tahsildar in accordance with law wilt stand invalidated merely because the Tahsildar has not sent a copy of the actual requisition to the Sarpanch or the Upa-Sarpanch as the case may be. Such a requirement cannot be read into the provisions of Section 35(2). The provisions contained in Rule 2(2) must be regarded as directory having regard to the true nature and purpose of a motion of no confidence. A motion of no confidence is not akin to disciplinary proceedings or a provision for removal for misconduct. A removal for misconduct is punitive. In such a case, a person who is sought to be proceeded against has to be furnished with a charge sheet and the removal must take place by following an enquiry that is consistent with the principles of natural justice. A motion of no confidence on the other hand, does not partake of a punitive character nor is it based on charges of misconduct which have to be proved. A motion of no confidence is the fundamental expression of the collective will of the members of a legislative body that they lack confidence in one of their own. The contention that the light to speak at the meeting given to a Sarpanch or Upa-Sarpanch requires that the requisition which has been moved be furnished to them cannot be acceded to. Should the Sarpanch or Upa-Sarpanch seek to have copies of the requisition, it is open to them to apply to the Tahsildar. However, where as in the present case the Sarpanch or Upa-Sarpanch chooses to participate in the meeting whereafter a resolution is duly passed by the requisite majority, it would stultify the democratic process if the Court were to nullify the resolution on the ground that a copy of the requisition was not furnished to the Sarpanch or Upa-Sarpanch.