1 MNM IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO. 9819 OF 2009 Govind Nivrutti Hipparkar ...Petitioner Vs. Tahasildar, Taluka Sangola & Ors. ...Respondents Mr.S.S.Patwardhan, Advocate for the Petitioners Mr. R.M.Patne, A.G.P for Respondents 1,8 & 9 Mr. Milind Dashmukh, Advocate for Respondents 2 to 6 CORAM : SMT.ROSHAN DALVI, J. DATED : 18TH JANUARY, 2010 P.C. : 1.Rule. Returnable forthwith. 2.Heard all Advocates. 3.The Petitioner has challenged the resolution passed at the meeting dated 22nd June 2009 expressing no confidence of the majority of the members in the 2 Petitioner as their leader and Sarpanch. The Petitioner has challenged the resolution passed on the ground that he was not given any opportunity of being heard and that the provisions of the Bombay Village Panchayat Act,1958 (the Act) and Rules, which are mandatorily required to be followed for passing of the no confidence resolution, were not followed. The Petitioner claims that Section 5 of the Bombay Village Act and Rules 17 to 26 of the Bombay Village Panchayat (Meeting) Rules 1959 (the Rules) have not been followed. 4.Under Section 35 of the Act the person against whom no confidence motion is to be moved is required to have a right to speak or otherwise take part in the proceedings at the meeting including the right to vote. 1. Under Rule 18 the precise procedure for passing the motion of no confidence is set out. Under Rule 18 the question is required to be proposed by reading the motion for the consideration of the Panchayat. 2. Under Rule 21 the Proposer has to rise and address his speech. 3. Under Rule 22 the Presiding Officer at the 3 meeting is entitled to address the meeting at any stage of a debate. 4. Under Rule 23 the Proposer of the Resolution may speak in support of the motion; the Seconder may follow thereafter. They are thereafter entitled to reply at the conclusion of the debate. 5. Under Rule 26 on the conclusion of a debate on a motion the Presider of the Meeting is to put to vote if he is satisfied that it is sufficiently discussed. 5.The Rules, therefore, contemplate a debate and a discussion. This debate would be amongst those persons who propose the motion and those persons who oppose the motion. It would therefore, include the Sarpanch himself against whom the motion is moved and who would oppose the passing of the motion. That is the opportunity contemplated under Section 35 which gives him the right to speak as well as the right to vote. 6.The fact of a debate and the discussion must, therefore, be a part of the minutes which are recorded as only the minutes would reflect what truly transpired. 4 7.The minutes of the meeting in this case marked Exhibit- A to the Petition show the attendance of 7 members including the Petitioner. 8.The minutes of the meeting show the allegation contained in the notice given to the Petitioner. The substance of the notice is that the Petitioner as the Sarpanch takes decision unilaterally and undemocratically without taking into confidence any other members. It is, therefore, sought to be shown that the Petitioner does not function democratically. 9.The minutes further show that the provision of Law including the Act and the Rules were brought to the notice of the members present. The notice of no confidence motion was itself read out the resolution was put to vote. 5 of the 7 members present and voted in favour of the resolution. 2 members including the Petitioner against the resolution and all the 7 members have signed the minutes. 10.It has to be seen whether such a meeting involving a vote of no confidence is correctly passed, if passed as aforesaid taking into account the aforesaid provisions of the Act and the Rules. The Act and the Rules require a debate when an allegation of this kind is made 5 against the Petitioner. The Petitioner, is therefore, required to be called upon to answer the specific charge against him made out by the members which is incorporated in the notice. That would afford him an opportunity to speak at the meeting. 11.It is contended on behalf of the Respondent Nos.2 to 6 that the Petitioner was present at the meeting. He had not sought to speak at the meeting even though the notice was read out in the meeting. The Petitioner has to be given an opportunity of hearing, if he seeks it, though Hearing cannot be forced upon the Petitioner. 12.The question of about whether it is incumbent on the Tahasildar to call upon the Petitioner to express his views at the meeting or whether he is required only to afford an opportunity to the Petitioner to speak if the Petitioner seeks such an opportunity was considered by this Court in Writ Petition No.6873/2008 in the order dated 24th October 2008 of my Sister Judge Mrs. Mhatre upon considering the aforesaid provisions of the Act and the Rules as well as the earlier judgment of the Division Bench. It was held that it was incumbent upon the Tahasildar to provoke a debate by according an opportunity to the person against whom the no confidence motion is sought to be passed to make this point by permitting him to speak. It is observed that 6 it is only then the Panchayat will be run in a democratic manner because it is only then that the person against whom a particular charge is made would be able to show the other members his point of view and make them decide, upon provoking a thought, to vote in favour of or against the resolution. Consequently, a healthy discussion or debate would be essential. The person presiding over the meeting has, therefore, specifically not only to read out what must be brought to the notice of the members, but to provoke a debate thereon. Therefore, if that is not done and if the members are merely passive listeners and have not thought of an issue with open mind, (which fact would be reflected from the minutes of meeting), the proceedings would fall foul of the specific requirements of the Act in heeding the person at the receiving end. The concept of the right to speak is reflected in the specific rules require the proposer and the seconder to rise and speak and to reply at the conclusion of the debate after which the motion would be put to vote. 13.A meeting where the notice and the provisions are only readout cannot be called a meeting which has a debate. Without the conclusion of the debate and without the specification that it is sufficiently discussed, the Presider of the Meeting would not be enjoined to put 7 the motion to vote under Rule 26 aforesaid. Since there is no debate at all there would be violation of the mandatory procedure laid down in the no confidence motion rules. The resolutions passed at such a meeting cannot,therefore, be sustained. 14.The Advocate for Respondents 2 to 6 has relied upon the judgment in the case of Nimba Rajaram Mali Vs. Collector, Jalgaon & Ors. Bombay Village Panchayat Act 1998(3) Mh.L.J.204 in which case after the mandatory procedure laid down in the Act and Rules was followed the no confidence motion was moved. The later challenge to the motions was held not sustainable. It was held that that would be a challenge to the decision of the majority and would run counter to democratic principles. If, however the Act and the Rules were not followed the democratic principles themselves are not followed. Merely reading of the Act and the Rules in the notice would not show following democratic principles. Hence, such a resolution can be challenged. Upon such a challenge it cannot be upheld. 15.The Collector in his order dated 7th August 2009 set aside the decision passed at the meeting dated 22nd June 2009 Exhibit-A to the Petition. That order is seen 8 to be correct. In the Appeal therefrom filed under Section 35 of the Act before the Additional Commissioner, Pune the order dated 7th August 2009 was set aside and the no confidence motion was allowed. The learned Commissioner held that opportunity of debating over the no confidence motion was given to all the members who had attended the meeting including the Petitioner. The Petitioner never raised any point of debate orally or in writing. True it is, that the Petitioner did not raise any point. However to provoke a debate the Tahasilder who has to call upon him to put forth his say and record the fact if he had nothing to say. If the Petitioner states nothing against the resolution or in his defence upon being called upon also, no debate can be provoked and none except the Petitioner would be faulted. 16.Since the minutes of the meeting do not show that the Petitioner was even called upon to speak, to exercise his right to speak which he had under Section 35(2) of the Act, the substantial compliance of the Act and the Rules was not made. The Tahasilder cannot simply rely upon the default of the Petitioner. He is enjoined to act in accordance with Rule 26. There is nothing to show that the procedure under Rule 26 is complied by the Tahasilder in the absence of any debate whatsoever. There is also nothing to show how he came to be 9 satisfied that the motion was sufficiently discussed by his unilateral act of reading the notice, Act and Rules. 17.Consequently, the order of the learned Additional Commissioner, Pune is seen to be wholly against the provisions of the Act and the Rules and consequently illegal. It is required to be set aside. 18.The writ Petition is accordingly allowed and the Rule is made absolute in terms of prayer clause (a). 19.The parties may convene another meeting for passing a vote of no confidence in accordance with law. (SMT.ROSHAN DALVI, J.)