High Court · 2024
Legal Reasoning
( 1 ) 2-WP-3044-2024IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 3044 OF 2024Varsha Pravin Mahadik...PetitionerVERSUSDistrict Collector Ahmednagar, Tal. & Dist. Ahmednagar and Ors. …Respondents...Mr.Ajinkya Reddy, Advocate for petitioner.Mr.K. B. Jadhavar, AGP for Respondent Nos. 1 and 2- State.Mr. P. P. More a/w Mr. Arya Mehta h/f Mr. Akash E. Madne for Respondents....CORAM:KISHORE C. SANT, J.RESERVED ON:25th SEPTEMBER 2024PRONOUNCED ON:10th DECEMBER 2024PC :-1.Heard the learned Advocate for the parties.2.The present petition is filed by a Sarpanch against whom noconfidence motion came to be passed. The challenge raised againstthe said motion before the learned Collector in Gram PanchayatDispute No.68 of 2023 also failed. This petition is therefore filedchallenging the judgment and order passed by learned Collector,Ahmednagar dated 5th March 2024 in the above dispute. TheRespondent Nos.4 to 14 are the members, who had moved no ( 2 ) 2-WP-3044-2024confidence motion. The Respondent Nos.1 and 2 are the Collectorand Tahsildar. The Respondent No.3 is the Gram Panchayat, BelapurKhurd.3.The facts giving rise to the petition are that the election ofGram Panchayat, Belapur Khurd was held in the year 2021. Thepetitioner came to be elected as a member to the Gram Panchayatand subsequently as sarpanch of village Belapur Khurd.Immediately within few months, the Respondents sent a requisitionto the Tahsildar to call a meeting to pass no confidence motion. TheTahsildar pursuant to the requisition, issued notice on 15thNovember 2021 convening a meeting on 19th November 2021.However, immediately on 16th November 2021, the said meetingwas called off by the Tahsildar in view of Section 35(3) of theMaharashtra Village Panchayats Act, 1959, whereby the provision ismade that no such motion can be moved within two years againstthe Sarpanch from the date of the election or within two years afterearlier motion fails. ( 3 ) 2-WP-3044-20244.The Respondents thereafter again moved another motion on18th August 2023. The Tahsildar on receipt of the requisitionconvened a meeting on 22nd August 2023. Pursuant to the saidrequisition, the meeting was held. The motion was carried and waspassed by a majority of 9 Vs. 2. The Tahsildar therefore declaredthat the notice of motion of no confidence is passed. 5.As stated, the petitioner challenged the said resolution byfiling Gram Dispute before the learned Collector, Ahmednagar,raising various grounds. It is stated that the earlier meeting dated16th November 2021 was cancelled and, therefore, in view ofSection 35 (3) of the Maharashtra Village Panchayat Act, (“said Act”for short) no motion could have been moved within two yearsthereafter. The notice was not in format and was not given withintime. Some grounds were taken about the conduct of the meetingand that no proper opportunity was given to the petitioner to speakin the meeting. 6.The Respondent Nos.4 to 14 appeared and opposed thedispute. The learned Collector on hearing the parties, rejected the
Legal Reasoning
( 4 ) 2-WP-3044-2024dispute holding that the resolution is rightly passed. Against thesaid decision, now the petitioner is before this Court.SUBMISSIONS OF LEARNED ADVOCATES7.The learned Advocate Mr. Ajinkya Reddy for the petitionervehemently argued the petition. The main thrust of argument isthat when the earlier motion was moved and that failed in themonth of November 2021, no second motion could have beenmoved within two years from the said date. In the present case,another motion is moved on 18th August 2023 which is clearlyagainst the provisions of Section 35 of the Act. The learnedCollector has failed to appreciate this aspect. The earlier meeting inthe year 2021 had failed. Thus, no motion could have been broughtwithin two years. 8.The learned Advocate for the petitioner relied on the decisionsof this Court in the cases of Gulab s/o Pandu Chavan Vs. Stateof Maharashtra1; Savita Shrimant Ghule Vs. SangitaBibhishan Sanap and Ors.2 and Prakash s/o Barku Patil Vs.12015(5) Mh.L.J. 11322024(2) Mh.L.J. 119 ( 5 ) 2-WP-3044-2024The State of Maharashtra and Ors.39.The learned Advocate Mr. P. M. More opposed the petition. Hesubmits that the earlier notice of motion cannot be said to havebeen failed as the meeting itself was not convened. Though thewording is used as it was adjourned but there was no question ofeven adjournment of the said meeting as it was moved within twoyears from the election of Sarpanch. The motion was moved in theyear 2023 was a fresh motion, proviso to Section 35 (1)(1A) of theMaharashtra Village Panchayats Act, would come into play. He reliesupon the judgment in the case of Sundara Pandian KalidasanVs. State of Telangana4 in support of his submission. DISCUSSION10.Considering the above submissions, the main question thatarises for consideration is as to whether the motion moved on 15thAugust 2023 can be said to have been moved within two years onfailure of the earlier motion. 31998(3) Bom.C.R. 8442021 (5) ANDH LD 143 ( 6 ) 2-WP-3044-202411.Whether the motion moved on 15th November 2021 can betaken as motion failed in view of proviso to Section 35 (1)(1A)(c) ofthe Maharashtra Village Panchayats Act (“the Act” for short). Forthe purpose of convenience, the relevant portion of Section 35 ofMaharashtra Village Panchayats Act is reproduced as below.35. Motion of no confidence.- [(1)] A motion of no confidence may be moved by not less than [twothird] of the total number of the members [* * *] who are for the timebeing entitled to sit and vote at any meeting of the panchayat againstthe Sarpanch or the Upa-Sarpanch after giving such notice thereof to theTahsildar as may be prescribed. [Such notice once given shall not bewithdrawn.](1A) ----------a.--------------b.-------------c.-------------2.----------3.If the motion is carried by [a majority of not less than [three-fourth] of] the total number of the members [* * *] who are for the timebeing entitled to sit and vote at any meeting of the panchayat or theUpa-Sarpanch, as the case may be, [shall forthwith stop exercising allthe powers and perform all the functions and duties of the office andthereupon such powers, functions and duties shall vest in the Upa-Sarpanch in case the motion is carried out against the Sarpanch; and incase the motion is carried out against both the Sarpanch and Upa-Sarpanch, in such officer, not below the rank of Extension Officer, as maybe authorised by the Block Development Officer, till the dispute, if any,referred to under sub-section (3B) is decided:Provided that, if the dispute so referred is decided in favour of theSarpanch or, as the case may be, Upa-Sarpanch, thereby setting asidesuch motion, the powers, functions and duties of the Sarpanch or Upa-Sarpanch shall forthwith stand restored, and if the dispute is decidedconfirming the motion, the office of the Sarpanch or, as the case may be,Upa-Sarpanch shall be deemed to have fallen vacant from the date ofthe decision of the dispute, unless the incumbent has resigned earlier: ( 7 ) 2-WP-3044-2024Provided further that, in cases where the offices of both the Sarpanchand Upa-Sarpanch become vacant simultaneously, the officer authorisedunder this sub-section shall, pending the election of the Sarpanch,exercise all the powers and perform all the functions and duties of theSarpanch but shall not have the right to vote in any meetings of thepanchayat:] [ [ Provided also that], where the office of the Sarpanch being reservedfor a woman, is held by a woman Sarpanch, such motion of no-confidence shall be carried only by a majority of not less than three-fourth of the total number of the members who are for the time beingentitled to sit and vote at any meeting of the panchayat:][Provided also that], no such motion of no-confidence shall be broughtwithin a period of two years from the date of election of Sarpanch orUpa-Sarpanch and before six months preceding the date on which theterm of panchayat expires;Provided also that, if the no-confidence motion fails, then no motionshall be moved within next two years from the date of failure of no-confidence motion.]12.The judgment relied upon by the petitioner in the case ofGulab Chavan Vs. State of Maharashtra and Ors. (supra), thisCourt had an occasion to consider the provisions of Section 35 (3-B)of the Bombay Village Panchayats (Meeting) Rules, 1959. Thequestion for consideration was in respect of four days notice of aspecial meeting. It was held that it was mandatory in view of Rule 4of the meeting Rules to give four clear days prior notice before theholding a special meeting. By relying upon the judgment in the caseof Ravindra Sukhdeo. Sanap and Anr. Vs. The State ofMaharashtra and Ors.5. It is held that the motion if not moved52014(4)Mh.L.J. 443 ( 8 ) 2-WP-3044-2024would not amount to motion not carried. It is further considered inthe said judgment that motion which is not carried, cannot be saidto be "not carried" unless and until it is "moved" legally. It fails onlyafter it is so moved and it is voted against. It is further held thatthe motion if “not carried” shows failure or rejection of motion of noconfidence. While "not moved" is the step or decision of therequisitionists not to press no confidence motion at all. This Courtfinds that it was held in the fact of that case, if meeting is annulleddue to absence of requisite notice, it was held to be no meeting inthe eyes of law and the earlier motion passed became ineffectiveand therefore, it was rendered to be invalid for want of requisitenotice. 13.In the case of Prakash Bapu Patil (supra), a Division Benchthis Court considered the provision of Section 53(3-A) as is stoodthen. No confidence motion was moved. Requisition was sent to theTahsildar to move no confidence motion. The meeting was fixed on7th November 1996. The learned Tahsildar however cancelled thesaid meeting in view of provisions of Section 35(3-A) of the Act and ( 9 ) 2-WP-3044-2024thus, the meeting itself was cancelled. This requisition was asecond time requisition. Thereafter, the members again sent arequisition on 21st March 1997. Pursuant to the said meeting, arequisition was fixed on 27th March 1997. This third notice had beenimpugned by the petitioner in that case. The ground was takenpursuant to requisition dated 6th November 1996 was within oneyear of notice dated 21st March 1997 and thus, the said could havebeen moved. The relevant paragraph No.7 of this order isreproduced as under:-“7. As per rule 2(3) of the Bombay Village PanchayatsSarpanch and Upa-Sarpanch )No Confidence Motion) Rules, 1975the notice of no confidence is required to be given by a majorityof members of the Panchayat whereas, as per section 35(3-A) ofthe said Act, the motion is required to be moved by a majority ofnot less than two -thirds of the total number of members, who arefor the time being entitled to sit and vote at any meeting of thePanchayat. In the instance case, there are in all 7 members andthe notice of no confidence was moved on 6-11-1996 by fourmembers out of 7 thus satisfying the requirements of the aboverule. However, in the actual meeting to be arranged by theTahsildar, what is necessary is that at least two-thirds of the totalnumber of members must support the motion and then only themotion is deemed to be moved. The harmonious construction ofthe provisions of the Rule 2(3) of the said Rules and section 35(3-A) of the said Act clearly leads to the conclusion that the term“motion is not moved” is synonymous with and amounts to“motion is not carried”. To decide whether the motion was movedor not moved, the meeting in pursuance of the notice of no ( 10 ) 2-WP-3044-2024confidence must be held and vote must be recorded eitheragainst or in favour of the motion. In the instant case, theTahsildar, having realised that the first motion was defeated on 6-3-1996 and the second notice of no confidence dated 6-11-1996was within the period of one year and was not entertainable inview of the amended provisions of section 35(3-A) of the Act,rightly cancelled the meeting scheduled on 7-11-1996 and thesaid cancellation of the meeting does not, by any stretch ofimagination, mean that the motion was not moved. Theimpugned notice dated 21-03-1997, has therefore, to beconsidered with reference to the date when the first noconfidence motion was defeated on 6-3-1996 and if so consideredthe said impugned notice is not within the period of one year andhence not barred by the provisions of section 35(3-A) of the Act.”14.On considering this Court finds that it is clear that to attractthe wording of ‘failure of motion’ means when it is validly carriedand moved in the meeting. In the present case, it is clear that theearlier in November 2021 though requisition was sent to theCollector, no meeting was actually held. There was, therefore, noquestion of putting motion for voting. Thus, the said judgment infact goes against the petitioner.15.It is clear that the earlier requisition though was sent by themembers, no meeting pursuant to the said requisition was held.The meeting was rightly cancelled and it cannot be said to havebeen moved and failed. ( 11 ) 2-WP-3044-202416.From reading of the last proviso it is be seen as to whether theearlier motion dated 15th November 2021 can be said to be failedwhen a meeting itself is not held. The facts in this case are clearand there is no dispute. The earlier motion itself was not carried inthe meeting as the meeting itself was adjourned. Though wording isused as adjourned in effect no meeting was held pursuant to theearlier motion. Since no meeting was held, there is no question offailure of the motion. It is only after the motion is pressed andmeeting is convened and the motion is put for voting then themotion would either be passed or be failed. The motion which itselfis not put for voting cannot be said to have been failed. This Courtis of the opinion that motion can be said to have failed only in caseif it was placed for voting. So long as, such notice is not put forvoting it cannot be said that the notice has failed. 17.Second question depends on the first question. This Court hasheld that in the present case, there was no failure of the earliernotice of motion, then naturally it cannot be said that secondmotion was moved within two years on failure of the earlier motion.
Decision
( 12 ) 2-WP-3044-202418.Considering this position in the present case though earliermeeting was moved however, meeting itself was not held pursuantto the earlier requisition. All these reasons, this Court finds force inthe submission of the respondent, no case is made out to entertainthe petition. Hence, the following order:ORDER(i)Petition stands dismissed.(ii)No order as to costs.(iii)Applications, if any, also stand disposed off. [KISHORE C. SANT, J.]D.A.Ethape