:1: :1: :1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO. 1266 OF 2008 Shri Kisan Dagadu Satkar ...Petitioner Versus The State of Maharashtra and Ors. ....Respondents ====== Mr.S.S.Salunkhe, Adv. for the petitioners. Mr.N.U.Khan Adv. for respondent nos.4, 6, 12 and 15. Ms.V.S. Mhaispurkar, AGP for respondent nos.1 to 3. CORAM: S.C.DHARMADHIKARI, J. DATED: 25TH FEBRUARY,2008. P.C. P.C. P.C. : : : 1. The Divisional Commissioner, Pune Division has dismissed the Appeal under Section 35(3) of the Bombay Village Panchayat Act, 1958 which was directed against the order of the Collector dated 5.11.2007. This is one more order of the Divisional Commissioner, Pune wherein it is apparent that he failed to apply his mind to the merits of the controversy raised before him. :2: :2: :2: 2. Time and again, the attention of the Assistant Government Pleaders appearing before me has been invited to the orders passed by the Divisional Commissioner, Pune, Mr.Nitin Kareer and they were informed that this Divisional Commissioner must be apprised of the views of the court. It appears that despite the Asst. Government Pleader bringing to his notice the fallacy in his approach and the obvious and patent errors in his orders, he has failed to correct himself. 3. This is not the first instance, where I have noticed that the Learned Commissioner passes a stereo type order. It is necessary to reproduce paras -3, 3.1 and 3.2 of the impugned order. "3. I have perused the Lower Court’ record and considered the arguments advanced by the Advocates. My findings in respect of appeal are as under : 3.1 On perusal of the Lower Court case papers, it is seen that the Respondent no.2 i.e. the Tahsildar has followed all mandatory provisions of No-Confidence Motion prescribed under the Bombay Village Panchayat Act 1958 and Rules thereunder. The points raised before me have already been discussed with :3: :3: :3: relevant provisions of Bombay Village Panchayat Act, 1958 and Rules thereunder by the Collector in his impugned Judgment dated 5.11.2007. The Appellant has not pointed out any new point with documentary evidence to interfere with the impugned decision of the Collector, Pune. It is also seen that the No-Confidence Motion was passed against the Appellant with required majority. 3.2. The Officer presides over the Special Meeting for considering the No-Confidence Motion is not required to examine the contentions made by the rival sides and to give any ruling thereon. His job is to conduct the meeting as per the legal provisions and ensure that the proceedings take place in an orderly manner, with a view to allowing the members fair and adequate opportunity to exercise their democratic rights. The members who move a motion on no-confidence are not required to adduce evidence and prove their allegations or to substantiate the grounds for moving such a resolution. It is sufficient that the office-bearers against whom no-confidence motion is moved get an opportunity to participate in the debate and to defend themselves. The ultimate decision is expected to be taken by casting of votes by the members and in this democratic process, majority of votes is the most critical and vital factor. In the instant case, the decision appears to have been reached after following due process and procedure and there is no reason or ground for interference. Therefore the Appeal deserves to be dismissed. " O R D E R . The appeal is dismissed and the order passed by the Collector, Pune dated 5.11.2007 is confirmed. Inform the parties accordingly." :4: :4: :4: 4. I have noticed that these paras appear in each and every order that is passed by him in No-Confidence Motion cases. He merely fills in the blanks, with regard to the dates of the No-Confidence Resolution and details of the orders impugned before him. All views and observations, so also, findings are identical. Whatever may be the nature of the controversy before him, his orders read the same. This can’t be a pure coincidence. It appears that the Divisional Commissioner is not finding time to decide these matters or the time at his disposal is very short. Be that as it may be, he should realise that courts of law are equally burdened with cases but when it comes to quasi judicial and judicial matters, no shortcuts are permitted. I hope this much is enough and the Divisional Commissioner will not repeat such acts in future and will not give any occasion to pass any adverse remarks. 4. In the instant case, the specific contention raised by the petitioner, who has been removed as a Sarpanch is that he had no Notice of the No-Confidence :5: :5: :5: Motion being moved against him. His specific case in the Appeal Memo is that he was on leave from 16.08.2007 to 15.10.2007. The Gram Panchayat had been informed by him in advance that he is proceeding on said leave. The said application was placed before the Gram Panchayat but his case is that on 21.8.2007, a No-Confidence Motion was moved against him. The same has been carried and passed on 27.8.2007. 5. Even before the Collector, it is his case that the No-Confidence Motion was moved after a Notice was addressed to the Tahsildar by the aggreived persons. The Tahsildar issued a Notice dated 21.8.2007 with regard to the meeting which was convened for deciding the No-Confidence Motion. That meeting was convened on 27.8.2007. His specific case is that the Notice was not received by him. 6. The finding is that the Notice was served at his residence and one Ms. Madhuri Satkar (Daughter of the petitioner) has accepted the same. Attention of all concerned was invited to the provisions of the Act and the Rules insofar as the No-confidence Motion is :6: :6: :6: concerned. According to the learned Counsel appearing for the petitioner, under the said Rules service of the Notice is provided for and such notice is to be personally served on the Sarpanch/Up-Sarpanch and in his absence on the male member present in the house. The argument is that there is no compliance with the requirement with regard to service and therefore all proceedings culminating in removal of the Sarpanch are bad in law. 7. I find nothing in the order of the Commissioner, which would indicate that this aspect is considered by him. The only conclusion in the Commissioner’s order is reproduced by me above. Prior thereto, paras 2, 2-1 and 2-2 are the contentions and submissions of the Advocates of either sides. The Commissioner has not applied his mind, but as noticed above, passed a stereo typed order. 7. Ms.Mhaispurkar was unable to show from this order anything which would indicate that the Commissioner has applied his mind to the controversy raised before him. When the Statute has chosen the :7: :7: :7: Collectors and Commissioner as the Authorities before whom the Sarpanch or Up-Sarpanch, a Dispute or Appeal could be filed, then, it is with some intent and object. The Tahsildar is entrusted with the functions insofar as, convening of the meeting and presiding over it. Thereafter the validity of the Motion can be disputed and the same is before the Authority named in Section 35(3-B). That Authority is the Collector and against his decision an Appeal is provided to the Commissioner. 8. All such officers are chosen because they are in-charge of the Revenue Administration at the District and Divisional level. The officers are ordinarily drawn from the Indian Administrative Service. They oversee the affairs of the Gram Panchayat and therefore the Legislature has chosen them. Further, they are independent and not expected to be involved in political disputes and wrangles. They have been chosen because the proceedings must have some sanctity. A No-Confidence Motion, when moved, means that the democratic process of recall has been initiated and that should be allowed to go through fairly and :8: :8: :8: impartially. There is a safeguard and guarantee that when a Tahsildar convenes and presides over a meeting to discuss and debate the No-Confidence Motion and the Commissioner is the Appellate Authority, then, any motion which does not meet the statutory requirements is not upheld. If the Commissioners’ are going to function in the manner noted above, then, it is time that the Legislature rethinks and restores the earlier provisions and remedies. I am informed that earlier all such disputes could be raised before a court of law. 10. In my view, the Commissioner being aware of his duties should not have adopted such a causal and mechanical approach but ought to have applied his mind to the controversy raised before him and passed a reasoned order. It is not disputed that the order does not refer to any material or assign any reason to conclude that the objections raised by the petitioners are devoid of any substance or merit. There is no alternative but to quash and set aside the order passed by the Commissioner, Pune and remit the case back to him. The Appeal under Section 35(3C) is restored to :9: :9: :9: the file for disposal afresh on merits and in accordance with law within a period of 2 months from the date this order is produced before him. Rule is made absolute in the above terms. The Commissioner shall pass an order afresh without being influenced by his earlier observations and findings. 11. Needless to state, that during the course of the proceedings before the Commissioner the Authorities shall not take any steps in pursuance of the No-Confidence Resolution which has been passed against the Petitioner-Sarpanch. 12. All contentions of both sides are expressly kept open. sd/- ********