1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.6856 OF 2009 Khandu s/o Bhivaji Jogdand, Age: 24 years, Occ: Agri.,& Sarpanch Grampanchayat, Bansarola, R/o. Bansarola, Tq. Kaij, District Beed. .. Petitioner Versus The State of Maharashtra, Through the Divisional Commissioner, Aurangabad Division, Aurangabad & Ors. .. Respondents ... Mr. K.J. Suryawanshi, Advocate for petitioner. Mr. V.G. Shelke, A.G.P. for Resp.Nos.1 to 3. Mr. S.J. Salunke, Advocate for Resp.Nos.5 to 8. ... CORAM : K.K. TATED, J. DATE : 12TH OCTOBER, 2009. PER COURT : 1. Heard learned Counsel for the petitioner, learned A.G.P. for respondent Nos. 1 to 3 and learned Counsel for respondent Nos. 5 to 8. 2 2. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner challenges the judgment and order dated 15-09-2009 in Appeal No. CR/42/2009 passed by the Divisional Commissioner, Aurangabad Division, Aurangabad and order dated 25-06-2009 passed by the Additional Collector, Ambajogai in Case No. VPN/Appeal/03. In the present case, the Divisional Commissioner, Aurangabad Division, Aurangabad by the impugned order dated 15-09-2009 held that no confidence motion confirmed against the petitioner is valid and subsisting as per law. 3. A few facts in the present case are that in 2008 the election of Grampanchayat Bansarola took place, in which the petitioner and respondent Nos. 5 to 15 and one Sindhu Mahadeo Done were elected as members. Thereafter, the petitioner was elected as Sarpanch of Bansarola Grampanchayat. On 12-09-2008 respondent Nos. 5 to 12 and Sindhu Mahadeo Done moved application 3 to the Tahasildar, Kaij for convening special meeting for passing no confidence motion against the petitioner. Accordingly, the Tahasildar, Kaij fixed the meeting on 18-09-2008. Before the date of meeting as fixed by the Tahasildar, President of Zilla Parishad, Beed disqualified respondent Nos. 10 to 12 and Sindhu Mahadeo Done on 16-09-2008 under Section 40(1) of the Bombay Village Panchayat Act, 1958 for the reason that these members remained absent for six months at the monthly meetings without any leave. The petitioner hereinabove filed R.C.S. No. 176/2008 in the Court of the Civil Judge, Senior Division, Ambajogai restraining the respondents from calling a meeting dated 18-09-2008 and for other reliefs. In the said R.C.S. No. 176/2008 the petitioner preferred application for injunction being Exhibit-5 seeking temporary injunction restraining the defendants in that suit from conducting a meeting scheduled on 18-09-2008 for moving no confidence motion on the notice of motion dated 12-09-2008, 4 contending that the petitioner was legally elected as Sarpanch of the Grampanchayat Bansarola, Tq. Kaij, District Beed and there were 13 Grampanchayat members. 4. It was the case of the petitioner in that suit that out of 13 members, 9 members of the said Grampanchayat had moved notice of no confidence motion against the petitioner on 12-09-2008 in the office of Grampanchayat on the false and imaginary grounds and no confidence motion meeting was scheduled on 18-09-2008 at 2-00 p.m. in the office of Grampanchayat. In the said injunction application below Exhibit-5, the Civil Judge, S.D. Ambajogai passed order dated 18-09-2008 which reads as under. "(1) The application Exh. 5 stands allowed. (2) The defendants are hereby temporarily restrained from conducting the scheduled meeting dated 18.9.2008 at 2.00 p.m. for the discussion of motion of no confidence in the 5 office of Grampanchayat, Bansarola based on the notice of motion of no confidence dated 12.9.2008; till disposal of the suit. (3) The learned A.G.P. Mr. A.V. Kulkarni, who is now present before me, shall note this order and do the further needful promptly. (4) Costs in main cause". 5. Respondent Nos. 10 to 12 and Sindhu Mahade Done preferred appeal before the Divisional Commissioner, Aurangabad Division, Aurangabad against the order of the President of Zilla Parishad, Beed dated 16-09-2008 under Section 40(1) of the Bombay Village Panchayat Act, 1958 disqualifying them as Members. In the said appeal, the Divisional Commissioner, Aurangabad Division, Aurangabad granted stay to the order dated 16-09-2008 passed by the President of Zilla Parishad, Beed. After obtaining stay from the Divisional Commissioner, Aurangabad Division, Aurangabad, respondent Nos. 5 to 12 moved application under Section 35(1) of the 6 said Act to the Tahasildar, Kaij for convening special meeting for passing no confidence motion against the petitioner. Pursuant to the said request, the Tahasildar, Kaij fixed special meeting for no confidence against the petitioner - Sarpanch on 29-12-2008. In the said meeting, no confidence motion against the petitioner was passed by majority. Against the said Resolution passed in the meeting dated 29-12-2008, the petitioner preferred appeal before the Additional Collector, Beed on 01-01-2009. The Additional Collector, Beed dismissed the said appeal on 25-06-2009. Thereafter, the petitioner preferred appeal under Section 35 (3) of the said Act before the Divisional Commissioner, Aurangabad Division, Aurangabad on 30-06-2009. Said appeal was dismissed by the Divisional Commissioner, Aurangabad Division, Aurangabad on 15-09-2009. 6. Learned Counsel appearing on behalf of the petitioner submitted that respondent Nos. 1 and 7 2 ought to have considered that notice for special meeting was not served in accordance with the provisions of Bombay Village Panchayat Sarpanch & Up-Sarpanch ( No confidence motion ) Rules, 1975 and therefore, the resolution passed in the special meeting dated 29-12-2008 is illegal and against the provisions of the rules. He further submitted that both the authorities ought to have considered that the earlier meeting was called and notice for special meeting was also issued by the Tahasildar to the present petitioner and therefore, the second meeting could not be convened within one year as per provisions of Section 35 (3-a) of Bombay Village Panchayat Act, 1958. Though several grounds were taken by the petitioner in his petition challenging the order dated 15-09-2009 passed by the Divisional Commissioner, Aurangabad in Appeal No. 42/2009, learned Counsel appearing on behalf of the petitioner specifically made a statement before this Court that the petitioner is restricting present Writ 8 Petition only to one ground i.e. Ground No.VII. That ground No. VII at Page 8 in the present petition reads as under. "VII) Both the authorities ought to have considered that, the earlier meeting was called and notice for special meeting was also issued by the Tahsildar to the present petitioner, but, the motion of no confidence was not passed in the meeting dated 18-09-2008 it was not cancelled, therefore, the second meeting cannot be convened within one year as per the provisions of section 35 (3-) OF Bombay Village Panchayat Act, 1958". 7. To consider the objection of the petitioner to the calling of the second meeting for passing no confidence motion against the petitioner, it is necessary to reproduce Section 35 (3A) of the Bombay Village Panchayat Act, 1958 which reads as under. "35(3A) If the motion is not moved or is not carried by 9 a majority of not less than or as the case may be, three- fourth, of the total number of the members who are for the time being entitled to sit and vote at any meeting of the panchayat, no such fresh motion shall be moved against the Sarpanch or, as the case may be, the Upa-Sarpanch within a period of one year from the date of such special meeting". 8. No doubt, it is specifically stated in the above mentioned Section that once the meeting is called to consider no confidence motion against the member of Grampanchayat and / or Sarpanch and in the said meeting, if no confidence motion fails, in that case, another meeting for the same cause of action cannot be called within one year. On the basis of this, learned Counsel appearing on behalf of the petitioner submitted that in the present case, second meeting for passing no confidence motion against him was called by respondent Nos. 5 to 12 within one year from the first meeting and therefore, the order passed by the Divisional Commissioner, 10 Aurangabad Division, Aurangabad dated 15-09-2009 is liable to be set aside. 9. On the other hand, learned Counsel appearing on behalf of respondent Nos. 5 to 8 submitted that first meeting which was called by respondent Nos. 5 to 12 for passing no confidence motion against the petitioner after following due process of law, the meeting scheduled to be held on dated 18-09-2008 was stayed by the Civil Judge, S.D. Ambajogai in R.C.S. No. 176/2008 and therefore, the said meeting was not at all held. If the meeting is not held, there is no bar for calling another meeting for passing no confidence motion against the member of the Grampanchayat after following due process of law. In support of his contention, learned Counsel appearing on behalf of respondent Nos. 5 to 8 relied on the judgment in the matter of Prakash s/o Barku Patil vs. The State of Maharashtra and others reported in 11 1998(3) Bom.C.R. 84. In that case, our High Court held that the meeting in pursuance of the notice of no confidence must be held and vote must be recorded either against or in favour of the motion. Para 7 of the said judgment reads thus : "7. As per rule 2(3) of the Bombay Village Panchayatas Sarpanch and Upa Sarpanch (No Confidence of Motion) Rules, 1975 the notice of no confidence is required to be given by a majority of members of the Panchayat whereas, as per section 35(3A) of the said Act, the motion is required to be moved by a majority of not less than two-thirds of the total number of members, who are for the time being entitled to sit and vote at any meeting of the Panchayat. In the instance case, there are in all 7 members and the notice of no confidence was moved on 6-11-1996 by four members out of 7 thus satisfying the requirements of the above rule. However, in the actual meeting to be arranged by the Tahsildar, what is necessary is that at least two-thirds of the total number of members must support the motion and then only the motion is deemed to be 12 moved. The harmonious construction of the 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 moved or not moved, the meeting in pursuance of the notice of no confidence must be held and vote must be recorded either against or in favour of the motion. In the instant case, the Tahsildar, having realised that the first motion was defeated on 6-3-1996 and the second notice of no confidence dated 6-11-1996 was within the period of one year and was not entertainable in view of the amended provisions of Section 35(3-A) of the Act, rightly cancelled the meeting scheduled on 7-11-1996 and the said cancellation of the meeting does not, by any stretch of imagination, mean that the motion was not moved. The impugned notice dated 21-3-1997, has therefore, to be considered with reference to the date when the first no confidence was defeated on 6-3-1996 and if so considered the said impugned notice is not within the period of one year and hence not barred by the provisions of section 35(3-A) of the said Act". 13 10. Learned Counsel appearing on behalf of respondent Nos. 5 to 8 also relied on the judgment in the matter of Ramesh vs. Sheshrao and others reported in 1998 AIR SCW 4141. In that case, the Apex Court held that if the first motion passed is held to be invalid for want of notice then second motion can be moved within one year. Paras 5 and 6 of this authority read as under. "5. The significant words in the above provisions are "if the motion is not moved or is not carried." then no such fresh motion shall be moved.....within a period of one year from the date of rejection of the motion. The question is whether the first motion which ended in the manner indicated above can be treated as a motion not moved or not carried by the requisite majority. In our opinion the first motion does not fall in this category. The first motion which was passed on 8-3-1995, was carried by the requisite majority but it became ineffective because the Commissioner on appeal by the Sarpanch held the Motion of No 14 Confidence to be invalid for want of the requisition notice of holding the special meeting on 8-3-1995. The Bar contained in sub-section (3A) of Section 35 of the Act does not cover such a situation. 6. The provision clearly is in respect of a motion which though valid, is not carried by the requisite majority of members because of it not being moved or being passed by the requisite majority. No such defect was found in the first motion in the present case which was carried by the requisite majority and not rejected in the meeting. The object of the provision clearly is to prevent frivolous No confidence Motion repeatedly within one year, if the earlier one has not been even moved or has been defeated because of the want of the requisite majority for passing the same. In the present case, the first motion, was not of the kind which attracted sub-section (3- A) of Section 35. Accordingly, there was no ground for the Commissioner to allow the appeal since sub-section (3-A) of Section 35 was not available in the present case". 11. In view of this submission, learned Counsel appearing on behalf of respondent Nos.5 to 8 15 submitted that there is no substance in the petitioner's objection about calling second motion within one year and therefore, present Writ Petition is liable to be dismissed with costs. 12. Learned A.G.P. appearing on behalf of respondent Nos. 1 to 3 also supported the order dated 15-09-2009 passed by the Divisional Commissioner, Aurangabad Division, Aurangabad in Appeal No. CR/42/09. 13. Considering the submissions made by both the parties, in the present case the point arising for consideration is that whether no confidence motion passed against the petitioner in a meeting dated 29-12-2008 is contrary to the provisions of Section 35 (3A) of the Bombay Village Panchayat Act, 1958. 14. In the present case, though the first motion called by respondent Nos. 5 to 12 and 16 Sindhu Mahadeo Done by their application dated 12-09-2008 against the petitioner and pursuant to the said motion, Tahasildar fixed the meeting on 18-09-2008 and same was not carried out due to the injunction order passed by the Civil Judge, S.D. Ambajogai below Exh. 5 in R.C.S. No. 176/2008 filed by the petitioner. If the said motion is not carried according to law then there is no bar to move for second motion within one year. There is no bar under Section 35 (3A) of the said Act. It is crystal clear from the authorities cited by learned Counsel appearing on behalf of respondent Nos.5 to 8 in the matter of Prakash Patil (supra) and Ramesh (supra) that if first motion passed held invalid for any reason then same cannot be treated as a motion as per law. Same thing has happened in the present case. The first motion was stayed by order passed by the Civil Judge, S.D. Ambajogai below Exh. 5 in R.C.S. No. 176/2008 and therefore, another motion moved by respondent Nos. 5 to 12 within one year cannot attract the 17 provisions of Section 35 (3A) of the said Act. Therefore, I do not find any irregularity in the order dated 15-09-2009 passed by the Divisional Commissioner, Aurangabad Division, Aurangabad. In view of these facts, Writ Petition is dismissed summarily, with no order as to costs. [ K.K. TATED, J.] sut/OCT09/wp6856.09