High Court · 2023
Facts
1906 & 007 W.P. 613-204.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 613 OF 2024Smt. Shila W/o Vijay Chavan,Age : 39 Years, Occ. Agriculture and Social workR/o. Rahuwadi Tq. Ambad Dist. Jalna ..... Petitioner VERSUS1.The State of Maharashtra,Through its Additional Chief Secretary,Rural Development Department, Mantralaya,Mumbai-32.2.The Divisional Commissioner,Chh. Sambhajinagar, Near Delhi Gate,Chh. Sambhajinagar3.The District Collector,Jalan, Collectorate Office buildingJalna.4.The Presiding Officer & Tahsildar,Ambad Tq. Ambad District Jalna.5.The Grampanchayat,Rahuwadi Tq. Ambad Dist. JalnaThrough its Gramsevak.6.Kavita Gopinath Jadhav,Age : 42 Years, occ. Agriculture,7.Babu Meharban Pawar,Age : 65Years, Occ. Agriculture8.Kalabai Shivdas Rathod,Age : 44 Years, Occ. Agriculture
Legal Reasoning
7906 & 007 W.P. 613-204.odt(viii)Kishor Ramchandra Phalak Vs. Vilas Damordhar Mahajan and others 1997 Mh. L.J 27(ix) Nagorao Sambhaji Dange Vs. Rudra Ramkisan Warkad and others of this Court in Writ Petition No. 4863 of 2018 decided on5 th February 2020 .(x)Ganesh Sukhdeo Gurule Vs. Tahsildar Sinnar and others 2019 (5) Mh.L.J. 509.(xi)Bhaskar Laxmanrao kadam Vs. Additional Collector, Nanded andothers 2013 (6) Mh.L.J. 613.(xii)Sangita Bhaskar Ingale Vs. State of Maharashtra and others 2015(6) Mh. L. J. 957. 5.Considering the above judgments, the arguments of the learnedcounsel for the petitioners revolve around the applicability of the Rulesof meetings. He has emphasized that the Bombay Village PanchayatsSarpanch and Up-sarpanch ( No Confidence Motion) Rules 1975 aresilent about the meeting procedure and practice. Therefore, theBombay Village Panchayat ( Sarpanch and Up-Sarpanch) ElectionRules 1964 would attract. He has specifically referred to Rule 10 andvehemently argued that the voting rules by secret ballots should beapplied to the no-confidence motion meeting. He has also vehementlyargued that the Full Bench of this Court, in the case of Vishwas 8906 & 007 W.P. 613-204.odtPandurang Bokad (supra) has dealt with Rule 17 of the Rules 1959and answered that the Rules 1959 would apply to the meeting of a no-confidence motion. Therefore, the other Rules, particularly Rules 21,22 and 26 of Rules 1959, would attract. Therefore, there must be aproposer and seconder to the subject, and the subject should be put upfor discussion in the meeting. There shall be a discussion on thesubject, and then the resolution is put for voting. This mandatoryprocedure has not been followed; therefore, the resolution of no-confidence passed against the petitioners is against the law. He prayedto allow both the petitions. 6.Per contra, the learned counsel for the contesting respondentshas vehemently argued that notice of a no-confidence motion wasperfect as per the requirement of no-confidence motion Rules. It is atrue translation of the contents given in the said so-called format. Hewould argue that the notice clearly indicates the intention of thesignatories that they requested the Tahsildar to convene a specialmeeting to consider a no-confidence motion against the petitioners.The law is well-settled that the discussion on the subject in the no-confidence meeting is not mandatory. The resolution by a majority ofvotes expressing their no-confidence in the meeting is sufficient to pass 9906 & 007 W.P. 613-204.odtthe resolution. In the democratic States, the majority is the Rule. Themajority was against the petitioners. The petitioners had submittedtheir submissions in writing. That submissions were read over in themeeting, and members were invited to comment thereon. The meetingminutes are specific: the opportunity was granted to the petitioners tomake the submissions. He has vehemently argued that Rule 28 of theRules, 1959 is very specific: unless the majority demands secret ballotvoting, the presiding officer cannot act on his own and invite themembers for secret voting by ballot. In the absence of any such requestor demand by the majority of the members present in the meeting, theRule is voting by showing hand or oral voice. Since only these twopetitioners had requested in writing for secret ballots, and the majoritydid not demand it, the Presiding Officer has correctly not consideredthe request. It was not the subject of no a-confidence motion. It waspart of the procedure. The demand by minority people does not fall forconsideration before the Presiding Officer in the meeting of a no-confidence motion. He referred to the judgment in the case ofBhaskar Laxmanrao kadam Vs. The Additional Collector Nanded andothers 2013 (6) Mh. L.J 613, and vehemently argued that voting byshow of hands is a general method while voting by secret ballot is anexception. He also relied on the case of Shital Sudhir Sonavle Vs. 10906 & 007 W.P. 613-204.odtGroup Gram Panchayat Vaghoshi and others 2003(3) Mh.L.J.565 andargued that no specific procedure for proposing and seconding motionis prescribed by Bombay Village Panchayats Sarpanch and Upa-Sarpanch (No Confidence Motion) Rules, 1975. Members seekingmotion need to give only two separate notices in the form to Tahsildar.He relied on the case of Gulab Pandu Chavan Vs. State of Maharashtraand others 2015 (5) Mh.L.J. 113 and argued that the question of aproposer and a seconder was directly involved in this case. This Courtanswered that Rule 17 of the Rules, 1959, in relation to Section 35(3)of M.V.P. Act, is held to be directory in nature and not mandatory.When more than 1/3rd of the members of the Grampanchayat havemoved the notice introducing the motion of ‘no-confidence’, a proposerand seconder are not held to be mandatorily required. Again, on thepoint of the method of voting in a no-confidence motion meeting, herelied on the case of Kishor Ramchandra Phalak Vs. Vilas DamodharMahajan and others 1997(3) Mh.L.J. 27. It has been held that theRules 1959 are applicable to the meetings of no-confidence motion. Hefurther relied on the case of Jivan Somarya Tahkare Vs. AdditionalCollector, nandurbar and others 2015(3)Mh.L.J. 590 . In this case, ithas been held if a member chooses to remain silent and does not desireto speak, Section 35 cannot be interpreted to mean that every member 11906 & 007 W.P. 613-204.odtshall be compelled to speak. He also relied on the case of NimbaRajaram Mali Vs. Collector Jalgaon and others 1998 (3) Mh.L.J. 204.In this case, it has been held that though the grounds of No ConfidenceMotion are required to be incorporated in the notice, the precision orspecification of giving details of such reasons is not a prerequisite of aNo-Confidence Motion. Alleged vagueness in reasons given in noticedoes not invalidate notice as well as motion passed on such notice. Healso relied on the judgment in the case of Mohan Vijay Murtadak andothers Vs. District Collector, Ahmednagar and others Writ Petition No.11235 of 2023, dated 02.01 2024 delivered by me and argued thatthe essential requirement of a No-Confidence Motion is that the partyagainst whom such motion has been passed has ceased to enjoy theconfidence of the requisite majority of members. Therefore, the subjector allegations levelled against him or them are immaterial, and onlythe Rule of majority is material.7.Hearing both sides at length, the following points fall forconsideration:-(i)Which Rules, i.e. the Rule of Village Sarpanch election Rules or Rules of 1959, apply to the meeting of a no-confidence?(ii)Are the proposer and seconder the essential requirements for passing the motion of a no-confidence? 12906 & 007 W.P. 613-204.odt(iii)Is the Presiding Officer bound to invite the members to vote bysecret ballots?(iv)Was it essential to the Presiding Officer to pass the specific order on the request of the petitioners to have voting by secret ballots? (v) Has the rights of petitioners been violated, and resultantly, was the resolution vitiated for not considering Rules 21, 22, and 26 of the Meetings Rues 1959?(vi)Whether the opportunity of being heard was granted to thepetitioners to make their submissions in the meeting?As to point No.1:-8.In various judgments, this Court has decided this point. Rule 17of Rule 1959 speaks about the procedure for considering the motion asthe meeting of no-confidence against the Sarpanch or the Upa-Sarpanch. It also prescribes for commencement of the motion byspeech by formal motion after the motion is duly seconded. In otherwords, it may be stated that it prescribes the procedure for opening thesubject. A proposer should move the subject, and the seconder shouldsecond it. The question is whether this Rule is mandatory or directory.In the case of Vijay Ramchandra Katkar (supra), this Court held thatRule 17 was mandatory. However, this question was referred to the FullBench of this Court in the case of Vishwas Pandurang Mokle Vs. GroupGram Panchayat Shihu and others 2011(3) Mh.L.J. In this case,considering the question regarding which Rule of meeting applies to 13906 & 007 W.P. 613-204.odtthe meeting of a no-confidence, the Full Bench answered that theprovisions of the Meeting Rules 1959 generally and provisions of Rule17 in particular apply to a meeting convened under Section 35. TheCourt has unequivocally observed in paragraph No. 18 that we are notdeciding the question as to what is the consequence in relation to thevalidity or otherwise of a motion of no confidence being passed againstSarpanch or Upa-Sarpanch in violation or without following aparticular Rule. That question will have to be decided in each caseafter considering the nature of the provisions, whether the provision ismandatory or directory. The Full Bench has explicitly left the questionof the consequences of not following Rule 17, open. It decided thatRule 17, in particular, applied to the meeting convened under Section35 of the no-confidence motion. However, whether Rule 17 ismandatory or directory was again referred to the Full Bench of thisCourt in the case of Tatyasaheb Ramchandra Kale Vs. NavnathTukaram Kakde and others (supra). It has been argued by the learnedcounsel for the petitioners that Rules 21, 22 and 26 are about speakingand addressing the speech of the members. The simple question iswhether the discussion on the subject in the meeting is mandatory andwhether it must be proposed and seconded. The proposing andseconding of the subject has been specifically provided in Rule 17. In 14906 & 007 W.P. 613-204.odtthe said case, the cases of Vishnu Ramchandra Patil Vs. Group GramPanchayat, Kharivli and others 2013(3) Mh.L.J. 133. Viswas PandurangMokal (supra) and Vijay Katkar (supra) were considered. Referring tothe relevant provisions of law, this Court has ruled that therequirement of Rule 17 in proposing and seconding a motion isdirectory. It cannot impinge upon the validity of the motion of noconfidence, which is passed by fulfilling the requirement of Section35(3). Referring to this pronouncement, this Court, in the case ofGulab Pandu Chavan (supra), has reiterated the view of the Full Benchand observed in paragraph No.21, which reads thus:-“21. As such, Rule 17 in relation to Section 35(3) ofMVP Act is held to be directory in nature and notmandatory. When more than 1/3rd of the members of theGrampanchayat have moved the notice introducing themotion of no confidence, a proposal and a seconder is notheld to be mandatorily required”. 9.So far as the objection as regards the discussion of the subject inthe meeting, the Hon’ble Supreme Court, in the case of BabubhaiMuljibhai Patel vs. Nandlal Khodidas Barot and others AIR 1974 S.C.2105, held that a no-confidence motion in the Council of Ministers isdistinct from a censure motion, whereas a censure motion must set outthe grounds or charge on which it is based and is moved for the 15906 & 007 W.P. 613-204.odtspecific purpose of censuring the Government for certain policies andactions, a motion of no-confidence need not set out any ground onwhich it is based. Even when grounds are mentioned in the notice andread out in the House, they do not form part of the no-confidencemotion.10. The various judgments have been rendered on the subject indifferent cases. The Rule of majority, as required under Section 35(3)was the backbone of the no-confidence motion. In the case of Nimba(supra), the Division Bench of this Court reiterated that allegedvagueness in reasons given in the notice does not invalidate the noticenor the motion passed on such notice. It has been held that the Rule ofmajority is the test to decide no confidence. In this case, the case ofBabubhai Patel ( supra) was also referred to and considered.11.So far as the arguments of the prescribed proforma of notice isconcerned, Rules 1975 provides for the form of notice of motion of noconfidence. 12.Comparing the form with the notice submitted to the Tahsildar,there appears to be no mistake in the notice of no-confidence motion.The notice submitted to the Tahsildar was written clearly in Marathi. 16906 & 007 W.P. 613-204.odtThere was a declaration about the truthfulness of the facts stated in thenotice of their information and knowledge. Such a declaration isrequired to bind the parties making the representation or submittingany document in the Court or before the authority to know that theyhave consciously made the allegations or submissions in suchdocument or petition. This Court did not find any mistake in the noticeof a no-confidence motion submitted to the Tahsildar.13.The written submissions were placed on record by thepetitioners against the notice to the Tahsildar. The resolution is veryspecific that the Tahsildar/ Presiding Officer invited the memberspresent in the meeting whether anybody wanted to say anything. Thepetitioners had submitted their written submissions with evidence andphotographs. He also asked the members whether any of them wantedto see the papers. This indicates that the submissions were put upbefore members present in the meeting. However, no member tookcognizance; therefore, as per the procedure, the Presiding Officer putup the motion for voting by showing hands. There is no force in theargument of the learned counsel for the petitioners that theopportunity of hearing and submissions was not granted to them in themeeting. 17906 & 007 W.P. 613-204.odt14.Without going into the details, the law is very settled aboutvoting by raising the hands or by mouth, unless the majority demandsvoting by secret ballots. It is not the duty of the Presiding Officer toinvite all the members to demand secret ballot voting. The objectionsthat the petitioners raised have already been set at rest by variousjudicial pronouncements referred to above. The resolution was freefrom infirmity and any procedural or legal defect. It was the resolutionpassed by the majority as required under no-confidence motion Rules.Though the Collector did not assign the reasons, he has tested thelegality and validity of the resolution in pursuance of Section 35(3) ofthe Maharashtra Village Panchayats Act, 1958.15. The point No.1 is answered that Rules 1959 would apply to themeeting of a no-confidence motion. Point No. 2 is answered thatproposer and seconder are required to discuss the subject of the no-confidence motion. Point No.3 is answered that the Presiding Officer isnot bound to invite the members present in the meeting of the no-confidence motion to demand the voting by secret ballots. Point No.4 isanswered that it was not essential for the Presiding Officer to pass thespecific orders on the written application for voting by secret ballots ifthe majority did not ask for it. Point No. 5 is answered that the rights 18906 & 007 W.P. 613-204.odtof the petitioners were not violated, and the meeting was not vitiatedfor not following Rules 21, 22, and 26 of Rules 1959. Point No. 6 isanswered that the hearing was granted to petitioners in the meeting. 16. The impugned resolution of no confidence and orders of theCollector are free from infirmity, illegality and perversity. Hence, bothWrit Petitions stand dismissed. No order as to costs.The rule stands discharged.17.The learned counsel for the petitioners submits that somebreathing time may be granted to approach the Hon’ble SupremeCourt. Till then, the authority may be restrained from proceeding withthe appointment of new Sarpanch and Upa-sarpanch of the village.The grounds that have been raised have already been answered by thisCourt in various pronouncements, and this Court did not findsubstance and merit in the case. Hence, this Court is of the view thatthis is not a fit case to stay the order of this Court as prayed. Theprayer thus stands rejected. ( S. G. MEHARE ) JUDGE ysk
Arguments
2906 & 007 W.P. 613-204.odt9.Gopal Omprakash Rathod,Age : 36 Years, Occ. Agriculture10.Gulab Lalu Rathod,Age : 51 Years, Occ. Agriculture11.Vijay Arjun Chavan,Age : 28 Years, Occ. Agriclture12.Shobha Anil Rathod,Age : 32 years, Occ. AgricultureAll resident of Rahuwadi Tq. AmbadDistrict Jalna. .. Respondents AND WRIT PETITION NO. 614 OF 2024Smt. Anita W/o Ankush Rathod,Age : 29 Years, Occ. Agriculture and Social Work,R/o.Rahuwadi Tq. Ambad Dist. Jalna. ..Petitioner VERSUS1.The State of Maharashtra,Through its Additional Chief secretary,Rural Development Department, Mantralaya,Mumbai-32.2.The Divisional Commissioner,Chh. Sambhajinagar, Near Delhi Gate,Chh. Sambhajinagar3.The District Collector,Jalan, Collectorate Office buildingJalna.4.The Presiding Officer & Tahsildar,Ambad Tq. Ambad District Jalna.5.The Grampanchayat,Rahuwadi Tq. Ambad Dist. Jalna 3906 & 007 W.P. 613-204.odtThrough its Gramsevak.6.Kavita Gopinath Jadhav,Age : 42 Years, occ. Agriculture,7.Babu Meharban Pawar,Age L 65Years, Occ. Agriculture8.Kalabai Shivdas Rathod,Age : 44 Years, Occ. Agriculture9.Gopal Omprakash Rathod,Age : 36 Years, Occ. Agriculture10.Gulab Lalu Rathod,Age : 51 Years, Occ. Agriculture11.Vijay Arjun Chavan,Age : 28 Years, Occ. Agriclture12.Shobha Anil Rathod,Age : 32 years, Occ. AgricultureAll resident of Rahuwadi Tq. AmbadDistrict Jalna. .. Respondents.....Advocate for the Petitioners : Mr. Shahaji. B. Ghatol PatilAGP for Respondent Nos. 1 to 4 : Mr. A. S. ShindeAdvocate for Respondent No.5 : Mr. P. G. BoaradeAdvocate for Respondent Nos. 6 to 12 : Mr. Vinayak P. Narwade .... CORAM : S. G. MEHARE, J.DATE : 23.01.2024JUDGMENT : 4906 & 007 W.P. 613-204.odt1. Rule. Rule made returnable forthwith. Heard finally by consentof the parties.2.The petitioners were Sarpanch and Upa-Sarpanch of villagePanchayat consisting of eleven members. Seven village panchayatmembers submitted a notice under Section 35 of the MaharashtraVillage Panchayats Act, 1958, for no-confidence against both of themon 3rd October 2023. They have assigned the reasons for the no-confidence motion in the notice. The Tahsildar issued notice to boththe petitioners. The petitioners received the notice. They were presentin the meeting dated 10.10.2023, specially convened for the no-confidence motion. Both petitioners submitted their say in writing. Inthe meeting, the resolution of a no-confidence motion was passedagainst both the petitioners by 3/4th majority. The said resolution wasimpugned before the District Collector, Jalna. The District Collectorconfirmed the resolution and dismissed the appeal.3. The petitioners have objected that a notice of no-confidencemotion does not mention that it was a notice of no-confidence motion,and the rules under which the said notice was issued were also notmentioned therein. The notice of a no-confidence motion was receivedtwo days prior to the meeting; therefore, they did not have sufficient 5906 & 007 W.P. 613-204.odttime to prepare. The petitioners have submitted their say on theallegations levelled against them in writing. However, there was nowhisper of the discussion on the submissions of the petitioners, and theresolution of a no-confidence motion was mechanically passed. Thevehement argument has been advanced that both the petitioners wereasked to vote by secret ballot in writing. However, the no-confidenceresolution did not reflect that Tahsildar put the subject for discussionin the meeting. Since the intimation was not given to the members,they were unaware of the demand for secret votes by ballots. Theresolution was silent about the demand for votes by secret ballots. TheTahsildar, who was presiding over the meeting, did not ask about thevoting by secret ballot in the meeting. Hence, members had nooccasion to make a demand. No orders were passed on theirapplication asking for the voting by secret ballots. The motion of a no-confidence was not moved in the meeting. There were no proposersand seconders to the subjects. The resolution without proposer andseconder was in violation of the Village Panchayats Meetings Rules1959 (Rules 1959 for short), particularly Rules 17 and 23. All thesepoints were raised in the appeal filed before the Collector, Jalna. TheCollector, Jalna, has merely recorded the points of objection but didnot discuss them in the concluding part of his order. The order of the 6906 & 007 W.P. 613-204.odtCollector, Jalna, was mechanical and without application of mind. Noopportunity of hearing was granted to the petitioners in the meeting.4. To bolster his arguments, he relied on the cases of(i)Vijay Ramchandra Katkar Vs.Group Gram Panchayat Pali, District Raigad and others 2010 (4) ALL MR 707,(ii)Aarti Santosh Pawar Versus The State of Maharashtra and others,Writ Petition No. 14612 of 2021 of this Court decided on 18th October 2023.(iii) Jaenendrakumar Phoolchand Daftari Versus Rajendra Ramsukh Mishra and others 1994 (1) Mh.L.J. 100.(iv)Viswas Versus Group Grampanchayat Shihu (201(3) Mh.L.J. 500Uddhav Poma Aade Vs. Additional Commissioner of Aurangabadand others 2018 (3) Mh. L. J. 529(v)Manoj Ghanshyamdas Banode Vs. Presiding Officer/Tahsildar Dhamangaon and others 2019 SCC OnLine Bom 85: (2019) 2 Bom CR 249 (vi) Tatyasaheb Ramchandra Kale Versus Navnath Tukaram Kakde and others 2014(6) Mh.L.J. (vii) Vipulbhai M. Chaudhary Vs. Gujarat Co-operativer Milk Marketing Federation Ltd and others 2015(8) SCC 1.