High Court
Legal Reasoning
wp-13685-2024 judg.odt(9)observed above, the Sarpanch is an executive authority of thegovernment resolutions and he has been imposed with the duties. Inthis context, the interpretation of 4th proviso to Section 35 should beconsidered. We are of the view that the immunity has been granted toevery Sarpanch elected during the tenure with a view to ensure thesmooth functioning of the Village Panchayat. The purpose is toprotect the functioning of the Village Panchayat and consider thewelfare of the voters of the Village Panchayat. Therefore, the Act hasbeen constituted.16.In the judgment of a Single Bench relied upon by thecontesting respondents in the case of Charushila (supra), the doctrineof purposive interpretation has been applied. We are of the view thatthe Sarpanch is a post conferred upon a person. Therefore, the term‘Sarpanch’ as well as the post of Sarpanch cannot be distinguished.Both have identical meanings in common parlance. If any action is tobe taken for the misconduct or negligence mentioned above, it wouldbe taken against the person who holds the post of Sarpanch. Thepurposive interpretation is a method of interpreting the laws thatconsiders the laws purpose rather than just its literal meaning. Inother words, the intent of legislature is to be understood in thecontext of purpose and object of the Act. The interpretation is alwaysheld in the fulfillment in the object of statute which is the purposiveinterpretation of statute. In the case of Workmen Of Dimakuchi Tea wp-13685-2024 judg.odt(10)Estate vs The Management Of Dimakuchi Tea Estate, AIR 1958 SC353, the Hon’ble Supreme Court held that the words of a statute,when there is a doubt about their meaning are to be understood inthe sense in which they best harmonise with the subject of theenactment and the object which the legislature has in view. Reading4th proviso to Section 35 of the Act, we are of the view that itslanguage is unambiguous. The words used in this proviso does notcreate doubt or draws two meaning. It is explicitly clear andunambiguous. Its literal interpretation is also unambiguous. Thewords used in the said proviso that no such motion of no confidenceshall be moved within a period of two years from the date of electionof Sarpanch specifically gives the immunity to the Sarpanch elected.There is no scope to draw the inference that such immunity has beengranted to the Sarpanch who has been appointed first time. Thisimmunity is granted to every Sarpanch elected during the tenure ofVillage Panchayat withstanding his sequence in office. We havealready discussed above the object of the Act and the purpose ofimmunity is to ensure smooth functioning of the Village Panchayat. Ifthe meaning as has been given to the word ‘Sarpanch’ in the caserelied upon by the contesting respondents is considered, the veryobject and purpose of the proviso of the Act may be frustrated. Theproviso does not distinguish the election of the Sarpanch for the firsttime or subsequent thereto after the no confidence against the
Arguments
wp-13685-2024 judg.odt(1)IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.13685 OF 2024Shital Kiran Rajput,Age : 46 years, Occ. : Sarpanch,R/o : Bodhegaon (Bk), Tq. Phulambri,Dist. Chhatrapati Sambhajinagar...PetitionerVersus1.The District CollectorChhatrapati Sambhajinagar,2.The Tahsildar Paithan,Tq. Phulambri, Dist. Chhatrapati Sambhajinagar3.Smt. Archana Kailas Kunte,Age-40 years, Occu.: Up-Sarpanch R/o. Bodhegaon (Bk), Tq. Phulambri, Dist. Chhatrapati Sambhajinagar4.Smt. Sumanbai Kashinath Dheple,Age-48 years, Occu.: Member R/o. Bodhegaon (Bk), Tq. Phulambri, Dist. Chhatrapati Sambhajinagar5.Shri. Kailas Damodar Kunte,Age-47 years, Occu.: Member R/o. Bodhegaon (Bk), Tq. Phulambri, Dist. Chhatrapati Sambhajinagar6.Ankush Ramchandra KunteAge-55 years, Occu.: Member R/o. Bodhegaon (Bk), Tq. Phulambri, Dist. Chhatrapati Sambhajinagar7.Rajendra Chokhaji Wagh,Age-45 years, Occu.: Member R/o. Bodhegaon (Bk), Tq. Phulambri, Dist. Chhatrapati Sambhajinagar8.Smt. Mandabai Sanjay Wagh,Age-46 years, Occu.: Member R/o. Bodhegaon (Bk), Tq. Phulambri, wp-13685-2024 judg.odt(2)Dist. Chhatrapati Sambhajinagar9.Smt. Hema Kunal WaghAge-35 years, Occu.: Member R/o. Bodhegaon (Bk), Tq. Phulambri, Dist. Chhatrapati Sambhajinagar10.Smt. Champabai Gulchand Wagh,Age-60 years, Occu.: Member R/o. Bodhegaon (Bk), Tq. Phulambri, Dist. Chhatrapati Sambhajinagar11.Village Panchayat BodhegaonTq. Phulambri, Dist. Chhatrapati Sambhajinagar, Through it's Village Development Officer. ...Respondents...Advocate for Petitioner : Mr. R.V. GoreAGP for Respondent Nos.1 & 2 : Mr. S.R. Yadav LonikarAdvocate for Respondent Nos.3 to 10 : Mr. A.R. SalveAdvocate for Respondent No.11 : Mr. H.V. Tungar... CORAM : S.G. MEHARE AND SHAILESH P. BRAHME, JJ. RESERVED ON : JANUARY 15, 2025 PRONOUNCED ON : JANUARY 27, 2025JUDGMENT :- (PER S.G. MEHARE, J.)1.Rule. Rule made returnable forthwith. Heard finallywith the consent of the parties.2.The petitioner/Sarpanch has impugned the notice dated11.12.2024 of respondent no.2 convening the meeting of noconfidence motion under Section 35 sub-section (2) of theMaharashtra Village Panchayats Act (for short ‘Panchayats Act’). 3.The petitioner was elected from the OBC (Woman)Category as the member of the Village Panchayat in the general wp-13685-2024 judg.odt(3)elections held on 15.01.2022. She was elected as Sarpanch on19.07.2023. Before her, respondent no.4 was the Sarpanch. Whileremoving respondent no.4 as a Sarpanch, the petitioner was also themember inviting the meeting of no confidence. On 11.12.2024,respondent nos.3 to 10 moved a representation to respondentno.2/Tahsildar for convening the meeting of no confidence againstthe petitioner. The petitioner has mainly impugned the notice ofrespondent no.2 on the ground that since she has not completed hertenure of two years from the date of her election, no such motion ofno confidence shall be moved. Therefore, the impugned notice ofrespondent no.2 is illegal, incorrect and against the provisions of law.4.Respondent no.2 filed an affidavit in reply. He submittedthat he solicited the guidance from the District Collector to deal withsuch issue before him. Respondent no.1 guided him that the noconfidence as such can be initiated against the petitioner i.e.Sarpanch or Up-sarpanch, if any, within two years from the date ofelection and within six months preceding the date of expiry of theterm of the Village Panchayat. On the basis of the guidance solicitedto him by his authority, he came with a case that the impugned noticedated 11.12.2024 is prima facie void. 5.Contesting respondent nos.3 to 11 are the partiesinterested in the no confidence against the petitioner. They haveappeared before the Court. Their learned counsel has vehemently wp-13685-2024 judg.odt(4)argued that immunity as provided under 4th proviso to Section 35 ofthe Panchayats Act could not be available to the petitioner as she isnot the Sarpanch elected first in time. He has vehemently argued thatthe immunity is to the post and not to the person. The earlierSarpanch held the post for more than two years and then noconfidence was brought against him. Interpreting the 4th proviso, hewould further submit that the period of two years should be countedfrom the date of election of Sarpanch or Up-sarpanch. The firstSarpanch was elected long back. Therefore, the no confidence motionis legally correct and the meeting should be convened. To Bolster hisarguments, he relied on the case of Charushila Bira Shriram Vs. TheState of Maharashtra and Others, Writ Petition No.9981 of 2024 ofthe Bombay High Court decided on January 3, 2025. 6.To counter the interpretation of the respondents, learnedcounsel for the petitioner would submit that no such discriminationcould be done with the petitioner being the second Sarpanch electedby the Village Panchayat members. The proviso is unambiguous. Theimmunity is not given to the post but it is given to the person. Twoyears are to be counted from the date of election of the Sarpanch andnot the post. The period of two years is yet to over. Their noconfidence motion is illegal. To bolster his arguments, he would relyon the judgment of this Bench in the case of Mukesh Eknath ChavanVs. The State of Maharashtra and Others, Writ Petition No.10447 of wp-13685-2024 judg.odt(5)2021 dated 05.10.2021. He would submit that the interpretation ofthe Single Bench of the Bombay High Court in the case of Charushila(supra) is contrary to the object of the proviso. There is somepurpose behind such proviso. Since the immunity of two years hasbeen granted, the immunity granting to the post of motion of noconfidence as such could not be entertained. The authorityempowered to convey the meeting has expressed the opinion infavour of the petitioner. Therefore, respondent nos.3 to 10 have novoice to say so. He prayed to allow the petition. 7.The short question falls for consideration is whether theimmunity/protection of two years from no confidence motion is to begiven qua to the post or the person. 8.For the ready reference, proviso (4) of Section 35 of thePanchayats Act which pertains to the no confidence motion isreproduced which reads thus : “Provided also that, no such motion of no confidence shall bemoved within a period of two years from the date of election ofSarpanch or Upa-Sarpanch and before six months preceding thedate on which the term of Panchayat expires:”9.The words used in the above proviso are unambiguous.Period of two years should be considered from the date of election ofSarpanch or Upa-sarpanch as is applicable in the case at hand. Theelection of Sarpanch is done by a process. However, the Single Benchof Bombay High Court in the case of Charushila (supra) reading wp-13685-2024 judg.odt(6)Section 35 and 43 of the Panchayats Act conjointly expressed theopinion that the words "date of election" occurring in 4th proviso toSection 35(3) is referable to the date of the election of the firstSarpanch. The interpretation also serves the purposive interpretationas although the statutory longevity by grant of immunity of period oftwo years is prescribed for infusing stability but at the same time theobservation of the Full Bench in Tatyasaheb Ramchandra Kale Vs.Navnath Tukaram Kakade, 2014 (6) Bom. C.R. 737 though renderedin the context of mandatory nature of the Panchayat Rules notes asunder: "The issue has to be looked at from one more perspective. Interms of Section 38 of BVP Act, the executive power of thePanchayat is vested in the Sarpanch and it is the Sarpanch who ismade responsible for the acts of the Panchayat. Hence if aninterpretation which results in Sarpanch being continued, whichSarpanch has lost the mandate of the house, the same wouldresult in acting against the very tenets of democracy. It is requiredto be borne in mind that the very essence of democracy andfundamental to it, is that a person who has lost the mandatecannot be allowed to continue. .....". (Emphasis supplied) 10.Finally, it has been observed that the words "date ofelection" occurring in the 4th proviso to Sub Section (3) of Section 35being situation specific and not person specific, the immunity grantedis qua the post and not qua the person and would therefore mean the wp-13685-2024 judg.odt(7)date of election of first Sarpanch and not the date of election of lastelected Sarpanch. 11.The Division Bench of this Court while interpreting thesame proviso in the case of Mukesh (supra) has observed in para 4that, the provision of Sub Section 3 of Section 35 of the MaharashtraVillage Panchayats Act is explicitly clear and admit of no ambiguity.The literal interpretation is unambiguous. No confidence motioncannot be held for a period of two years from the date of election. 12.Primary rules of interpretation is to consider the literalmeaning of the words used in the Act. The term ‘Sarpanch’ has beendefined under sub-section (17) of Section 3 of the Panchayats Act,which reads thus :“(17) “Sarpanch” and “Upa-Sarpanch” means a Sarpanch andUpa-Sarpanch elected under section 30, [30A-1A] [30A] 44 or43;” 13.Section 30 of the Panchayats Act speaks of the election ofSarpanch. It provides that every Panchayat shall be presided over bya Sarpanch who shall be elected by, and from amongst, the electedmembers thereof. Section 30-1A is more relevant to interpret theterm whether the Sarpanch is a person or a post. It provides that theperson contesting election for reservation office of Sarpanch to submitthe caste certificate and validity certificate. Herein, the word personhas been used for contesting the election for reserved office of wp-13685-2024 judg.odt(8)Sarpanch. This section further provides responsibility upon suchperson to submit the validity certificate within a time prescribed.14.As per Section 30 of the Panchayats Act, the Sarpanch,who should preside over the Panchayat is a person elected by andfrom amongst the elected members thereof. As per Section 30A-1A,the Sarpanch is a ‘person’ elected directly by the voters. TheSarpanch is an executive head of the Panchayat. He has to dischargecertain duties. As per Section 38 of the Act, the executive powers, forthe purpose of carrying out the provisions of the Village PanchayatsAct and the resolutions passed by a Panchayat, vests in the Sarpanchwho shall be directly responsible for the due fulfillment of the dutiesimposed upon the Panchayat by or under this Act. His duty is toconvene the Panchayat meetings from time to time. He is responsiblefor the misconduct in discharge of the duties or for any disgracefulconduct or neglect or incapacity to perform his duties or persistentlyremains absent in discharge of such duties. If the Sarpanch is guiltyof the above acts, he may be removed by the Commissioner byfollowing due procedure of law. He even cannot remain absent as perhis whims. 15.The preamble of the Act is that the Village Panchayats areconstituted in the State investing such powers by the authority toenable them to function as units of local self-government and ofdevelopment activities in rural areas, and for certain other matters. As
Decision
wp-13685-2024 judg.odt(11)Sarpanch preceding to the election of another Sarpanch. In view ofthe rule of interpretation, literal meaning and the words in the saidproviso, we are of the opinion that the judgment of Charushila(supra) would not help the contesting respondents. We do notapprove the view taken in Charushila (supra).17.For the above reasons, the writ petition is allowed. Theimpugned notice dated 11.12.2024 for no confidence motion standsquashed and set aside.18.No order as to costs.19.Rule is made absolute in above terms. (SHAILESH P. BRAHME, J.) (S.G. MEHARE, J.)Mujaheed//