1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.534 OF 2010 Shivkant s/o Haribhau Bangar, age: 40 years, Occ: Agri., R/o Mauje Ratnapur, Tq.Kalamb, District Osmanabad. Petitioner Versus 1 The Gramsevak, Grampanchayat Office, Mauje Ratnapur, Tq.Kalamb, District Osmanabad. 2 Shashikant s/o Shrirang Jadhavar, age: 35 years, Occ: Service, R/o Mauje Ratnapur, Tq.Kalamb, District Osmanabad. 3 Ramesh s/o Vithal Jadhavar, age: 39 years, Occ: Agri., R/o Mauje Ratnapur, Tq.Kalamb, Dist.Osmanabad. 4 Smt.Gavlan w/o Tanaji Tekale, age: 27 years, Occ: Household, R/o Mauje Ratnapur, Tq.Kalamb, Dist.Osmanabad. 5 Jaidrath Dashrath Waghmare, age: 45 years, Occ: Agri., R/o Mauje Ratnapur, Tq.Kalamb, Dist.Osmanabad. 6 Avinash s/o Anantrao Jadhavar, age: 34 years, Occ: Agril., R/o Mauje Ratnapur, Tq. Kalamb, Dist.Osmanabad. 2 7 Sow.Mangal w/o Anantrao Waghmare, age: 33 years, Occ: Household, R/o Mauje Ratnapur, Tq.Kalamb, District Osmanabad. 8 Sudhir s/o Vishwanath Waghmare, age: 35 years, Occ: Service, R/o Mauje Ratnapur, Tq.Kalamb, District Osmanabad. 9 Sow.Keshar w/o Achut Jadhavar, age: 50 years, Occ: Household, R/o Mauje Ratnapur, Tq.Kalamb, District Osmanabad. 10 The Presiding Officer or the Tahsildar, Kalamb, Tq.Kalamb, District Osmanabad. 11 The Additional Collector, Osmanabad, Dist.Osmanabad. 12 The Divisional Commissioner, Aurangabad Division, Aurangabad. Respondents WITH WRIT PETITION NO.535 OF 2010 Smt.Gavlan w/o Tanaji Tekale, age: 27 years, Occ: Household, R/o Mauje Ratnapur, Tq.Kalamb, District Osmanabad. Petitioner Versus 1 The Gramsevak, Grampanchayat Office, Mauje Ratnapur, Tq.Kalamb, 3 District Osmanabad. 2 Shashikant s/o Shrirang Jadhavar, age: 35 years, Occ: Service, R/o Mauje Ratnapur, Tq.Kalamb, District Osmanabad. 3 Ramesh s/o Vithal Jadhavar, age: 39 years, Occ: Agri., R/o Mauje Ratnapur, Tq.Kalamb, Dist.Osmanabad. 4 Smt.Gavlan w/o Tanaji Tekale, age: 27 years, Occ: Household, R/o Mauje Ratnapur, Tq.Kalamb, Dist.Osmanabad. 5 Jaidrath Dashrath Waghmare, age: 45 years, Occ: Agri., R/o Mauje Ratnapur, Tq.Kalamb, Dist.Osmanabad. 6 Avinash s/o Anantrao Jadhavar, age: 34 years, Occ: Agril., R/o Mauje Ratnapur, Tq. Kalamb, Dist.Osmanabad. 7 Sow.Mangal w/o Anantrao Waghmare, age: 33 years, Occ: Household, R/o Mauje Ratnapur, Tq.Kalamb, District Osmanabad. 8 Sudhir s/o Vishwanath Waghmare, age: 35 years, Occ: Service, R/o Mauje Ratnapur, Tq.Kalamb, District Osmanabad. 9 Sow.Keshar w/o Achut Jadhavar, age: 50 years, Occ: Household, R/o Mauje Ratnapur, Tq.Kalamb, District Osmanabad. 4 10 The Presiding Officer or the Tahsildar, Kalamb, Tq.Kalamb, District Osmanabad. 11 The Additional Collector, Osmanabad, Dist.Osmanabad. 12 The Divisional Commissioner, Aurangabad Division, Aurangabad. Respondents Mr.V.D.Salunke, advocate holding for Mr.S.J.Salunke, advocate for petitioner/s. Mr.S.G.Chapalgaonkar, advocate for Respondents No.2, 3, 5, 6, 8 & 9 Mrs.Y.M.Kshirsagar, A.G.P. for Respondents No.10, 11 & 12. CORAM: R.M.BORDE, J. Reserved on : 31 st March, 2010. Pronounced on: 06th April, 2010. ORAL JUDGMENT: 1 Heard learned Counsel for respective parties. Rule. Rule made returnable forthwith and heard finally by consent of learned Counsel for respective parties. 2 In both the petitions challenge is raised to the order in respect of dismissal of the appeal presented by respective petitioners to the Divisional Commissioner, Aurangabad, on 19.12.2009, thereby confirming the order passed by Additional Collector, Osmanabad, dated 20.10.2009. 3 The dispute pertains to no confidence motion moved against petitioners, who are holding the post of Sarpanch and Upa-Sarpanch, 5 respectively of Village Panchayat Ratnapur, Taluka Kalamb, District Osmanabad. The election to the members of village panchayat was held in the year 2007 and petitioners in both the petitions are elected as members of village panchayat. On 10 th August 2009, six members of village panchayat moved a common requisition to the Tahsildar requesting for convening a special meeting to discuss the motion of no confidence moved against Sarpanch and Upa-Sarpanch. On 12 th August, 2009, Tahsildar, Kallam, issued notices to the members prescribing date and venue of the special meeting as 17.08.2009. A common notice came to be issued by Tahsildar to the members calling upon them to attend the meeting for consideration of no confidence motion moved against petitioners in both the petitions on 17.08.2009. 4 According to petitioners, notice was not served on them or any adult male member in the family and merely evidence has been created in respect of affixing of notices on the door of residences of petitioners. It is further contended that even as per record, notices are not in fact affixed on the door of residential premises of petitioners, but same are affixed on the residences of some other villagers. In the absence of petitioners, motion of no confidence is moved against them and same is carried with a majority of six members voting in favour of the motion. 5 Petitioners in both the petitions challenge validity of motion of no confidence carried against them in the special meeting convened on 17.08.2009 mainly on two grounds. Firstly, it is contended that common requisition for convening a meeting for consideration of no confidence motion against Sarpanch and Upa-Sarpanch both, is not permissible and convening of such meeting and moving the requisition itself, is in violation of 6 mandatory provisions of Rule 2 (1) of the Bombay Village Panchayats Sarpanch and Upa-Sarpanch (No Confidence Motion) Rules, 1975 (for short, “Rules of 1975”). 6 Another objection raised is in respect of failure to issue notice in respect of motion of no confidence to the petitioners, which has resulted in taking away the valuable right vested in them in attending the meeting and addressing the members with a view to answer the charges levelled against them. The net result of failure of serving notice of the meeting is deprivation of right of office bearers i.e. petitioners to address the meeting with a view to answer charges, which right, according to petitioners, is fundamental in character and essence of democratic functioning of local self bodies. 7 That, so far as objection raised by petitioners in respect of moving of common requisition by six members of village panchayat requesting the Tahsildar to convene special meeting for consideration of no confidence motion is concerned, a copy of requisition is placed on record at Exhibit-A. On perusal of Exhibit-A, it appears that six members have signed the requisition, which notes three grounds in support of the motion. The requisition is common in respect of Sarpanch and Upa-Sarpanch and grounds in support of motion of no confidence moved against office bearers are also common in respect of both the petitioners. Surprisingly, it appears that, the Tahsildar has endorsed on the requisition noting therein that six members have presented a notice in person and all the members have signed in presence of Tahsildar. The reference in the noting is only for calling a meeting for consideration of no confidence against Sarpanch alone. The Tahsildar has ordered to convene the meeting on 17.08.2009 at 2.00 p.m. in the office of Village Panchayat, Ratnapur. It was further directed by the 7 Tahsildar to issue notices to the members accordingly. Thus, it transpires that although the requisition is common in respect of calling meeting for consideration of no confidence against Sarpanch and Upa-Sarpanch both, the endorsement made by the Tahsildar is in respect of calling meeting for consideration of no confidence only against Sarpanch. However, it transpires that notices are issued for consideration of no confidence against Sarpanch and Upa-Sarpanch both and the notices are common in respect of consideration of motion against both the office bearers. 8 In order to verify the contentions raised by petitioners, I have called upon the Tahsildar to produce original file. On perusal of original file maintained by Tahsildar, it transpires that a common requisition is moved against Sarpanch and Upa-Sarpanch both and the endorsement made by Tahsildar on receipt of requisition is only for consideration of motion against Sarpanch alone. Exhibit-A annexed with the petitions is a true copy of original which finds place in the record of Tahsildar. Thus, although the requisition was in respect of calling for meeting for consideration of motion of no confidence against Sarpanch and Upa-Sarpanch, order issued by Tahsildar is in respect of consideration of motion only against Sarpanch. However, notices of meeting dated 17.08.2009 gives an impression that meeting is convened for consideration of motion against both and in fact the motion of no confidence is considered against both the office bearers and same has been carried by majority. Thus, there is a defect of fundamental character appearing in tendering common requisition as well as the order passed by Tahsildar also is in respect of consideration of motion only against Sarpanch, however, the meeting was convened for consideration of motion against both the office bearers and same is carried through. 8 9 An endorsement made by Tahsildar for convening meeting for consideration of no confidence only against Sarpanch and consideration of motion against both the office bearers in the meeting cannot be said to be a defect of technical character. The whole procedure in respect of conduct of meeting and consideration of motion against both the office bearers is vitiated. The defect pointed out cannot be said to be of a technical character and same is of fundamental nature which vitiates the entire procedure. 10 The appellate authorities i.e. Additional Collector and Divisional Commissioner have not considered the matter in its correct perspective and proceeded to dismiss the appeals. From the reply tendered by Tahsildar before Collector, Osmanabad, he has admitted that there was a common notice disclosing similar allegations and the Tahsildar has further stated in his reply that there was no need to issue dual notices to the members in respect of motion against Sarpanch and Upa-Sarpanch as all the members reside in one and same village. The Additional Collector, Osmanabad, however, did not consider the objections raised by petitioners, based on interpretation of Rule 2(1) of Rules of 1975, as well as in respect of defect in serving notices on petitioners and proceeded to dismiss the appeals. 11 The Divisional Commissioner, however, while considering the appeals, has noted in the judgment that on perusal of the file maintained by Additional Collector, it appears that there are two separate requisitions tendered by members for convening meeting for consideration of motion of no confidence against Sarpanch and Upa-Sarpanch and as such, the ground of objection raised by petitioners, based on interpretation of Rule 2(1) of the Rules, has been turned down. 9 12 I have also perused the file maintained by Additional Collector. In the file maintained by Additional Collector, true copies of requisitions tendered by members for convening the meeting for consideration of motion of no confidence against Sarpanch and Upa-Sarpanch do find place and those are two difference requisitions. However, endorsement thereon is by the Clerk from the office of Tahsildar and same does not bear endorsement of Tahsildar. There is also no inward number noted on the so called requisitions. If such requisitions are separately presented to Tahsildar, same shall obviously find place in the file maintained by Tahsildar. However, originals thereof, are not part of the file of Tahsildar. The Tahsildar was called upon to file his affidavit and initially he presented his affidavit on 02.02.2010, wherein it is stated by Tahsildar in para 5 of the reply, thus: “I say and submit that, further contention of the Petitioner is that, for no confidence motion against Sarpanch and Upsarpanch, only letter was issued by the Gram Panchayat Member to the Tahsildar, in this respect. Six members of the Gram Panchayat, Ratnapur had tendered separate application to this deponent, requesting to convey a meeting of no confidence motion against Sarpanch and Upsarpanch.” 13 After perusal of original files maintained by Tahsildar as well as file in respect of appeal presented to the Additional Collector, I find that there is some discrepancy, which goes to the root of the matter and as such, explanation was required to be called from the Tahsildar. As such, by an order dated 29 th March, 2010, I called upon the Tahsildar to remain present before the Court and tender his affidavit explaining: i If there were two separate requisitions presented, 10 why those two separate requisitions do not find place in the file maintained by him? Ii Why the requisition which finds place in the record of Tahsil does not bear inward / outward register number? Iii Why the separate requisitions placed on record in the file of Deputy Collector bear the inward / outward number ? And whether those are copies of original? 14 The Tahsildar remained present in person and tendered his affidavit on 30 th March, 2010. The Tahsildar has tendered his unconditional apology for making statement in his earlier reply, which is not true and correct as per the record. He further explained the mistake appearing in para 5 of his earlier reply. The explanation tendered by Tahsildar reads thus: “It is submitted that, intention of the deponent was never to mislead this Hon’ble High Court or make false statement before this Hon’ble High Court. It is submitted that in para no.5 of page 75 of the Writ Petition in the affidavit sworn by this deponent it is stated that, “Six members of the Gram Panchayat, Ratnapur had tendered separate application to this deponent requesting to convey meeting of no confidence motion against Sarpanch and Upsarpanch.” It is submitted that this deponent actually meant, “six members of Grampanchayat, Ratnapur had tendered application (Composite application) to the deponent requesting to convey separate meeting of no confidence motion against Sarpanch and Upsarpanch.” It is therefore, submitted that the deponent had received one composite application / requisition to convey meeting of no confidence motion against both Sarpanch and Upsarpanch.” 15 The Tahsildar has further stated that there is only one composite 11 requisition received by him in respect of motion of no confidence against Sarpanch and Upa-Sarpanch. He further stated that as the requisition was tendered directly to him, same does not bear inward number. He further stated that separate requisitions, copies of which, find place in the record of Deputy Collector, were in fact not tendered to him. He further stated that there is no inward number on the said copies and receipts of those requisitions appear to have been given by the Clerk, against whom an inquiry is initiated. The Tahsildar has stated that there are no originals of the requisitions in the office of Tahsildar, copies of which find place in the record maintained by Deputy Collector. The Tahsildar has again tendered unconditional apology. 16 Thus, from the facts stated above, it is clear that there is only one common requisition received by the Tahsildar in respect of motion of no confidence against Sarpanch and Upa-Sarpanch. 17 It is necessary to consider the provisions of Bombay Village Panchayats Sarpanch and Upa-Sarpanch (No Confidence Motion) Rules, 1975. Rule 2 of the said Rules reads thus: 2 (1) The members of a panchayat who desire to move a motion of no confidence against the Sarpanch or the Upa-Sarpanch shall give notice thereof in the form appended hereto to the Tahsildar of the taluka in which such panchayat is functioning. Where the members desire to move the motion of no-confidence against the Sarpanch as well as the Upa-Sarpanch, they shall give two separate notices. (2) The notice under sub-rule (1) shall be accompanied by seven additional copies thereof, and 12 the Tahsildar shall send one copy to the Sarpanch, one to the Upa-Sarpanch and one each to the Zilla Parishad, the Panchayat Samiti, the Collector and the Commissioner. One copy shall also be given to the Secretary. (3) The Tahsildar shall, immediately on receipt of notice under sub-rule (1), satisfy himself that the notice has been given by not less than one-third of the total number of members (other than associate members) who are for the time being entitled to sit and vote at any meeting of the panchayat and then convene a special meeting for the purpose within seven days from the date of receipt of such notice. 18 Rule 2(1) of the said Rules in clear terms prescribes for tendering two separate requisitions when the members desire to move motion of no confidence against Sarpanch as well as Upa-Sarpanch. It is contended by learned Counsel appearing for petitioners that provisions of Rule 2(1) are mandatory in character and non compliance of the Rules vitiates the motion of no confidence in essence directly. 19 Section 35 of Bombay Village Panchayats Act, 1958 deals with motion of no confidence. The provision is quoted below: 35 Motion of no confidence – (1) A motion of no confidence may be moved by not less than one- third of the total number of the members who are for the time being entitled to sit and vote at any meeting of the panchayat against the Sarpanch or the Upa-Sarpanch after giving such notice thereof to the Tahsildar as may be prescribed. Such notice once given shall not be withdrawn. (2) Within seven days from the date of receipt by him 13 of the notice under sub-section (1), the Tahsildar shall convene a special meeting of the panchayat for considering the motion of no confidence at the office of the panchayat at a time to be appointed by him and he shall preside over such meeting. At such special meeting, the Sarpanch or the Upa-Sarpanch against whom the motion of no confidence is moved shall have a right to speak or otherwise to take part in the proceedings at the meeting including the right to vote. (3) If the motion is carried by a majority of not less than two-third of the total number of the members who are for the time being entitled to sit and vote at any meeting of the panchayat, the Sarpanch or the Upa- Sarpanch, as the case may be, shall cease to hold office after seven days from the date on which the motion was carried unless he has resigned earlier or has disputed the validity of the motion so carried as provided in sub-section (3-B); and thereupon the office held by such Sarpanch or Upa-Sarpanch shall be deemed to be vacant. Provided that no such motion of no-confidence shall be brought within a period of six months from the date of election of Sarpanch or Upa-Sarpanch. (3-A) If a motion is not moved or is not carried by a majority of not less than two-third 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. (3-B) If the Sarpanch or, as the case may be, the Upa- Sarpanch desires to dispute the validity of the motion carried under sub-section (3), he shall, within seven days from the date on which such motion was carried, after the dispute to the Collector who shall decide it, as far as possible, within fifteen days from the date on which it was received by him; and any such decision shall, 14 subject to an appeal under sub-section (3-C), be final. (3-C) Any person aggrieved by the decision of the Collector may, within seven days from the date of receipt of such decision, appeal to the Commissioner who shall decide the appeal, as far as possible, within fifteen days from the date on which the appeal is received by him, and any such decision shall be final. (3-D) Where on a reference made to him under sub- section (3B), the Collector upholds the validity of the motion carried under sub-section (3) and no appeal is made by the Sarpanch or the Upa-Sarpanch under sub- section (3C) within the limitation period specified in that sub-section, or where an appeal is made under sub- section (3C), but it is rejected by the Commissioner, the Sarpanch or as the case may be, the Upa-Sarpanch shall cease to hold office, in the former case, immediately after the expiry of the said limitation period and, in the latter case, immediately after the rejection of the appeal, and thereupon the office held by such Sarpanch or Upa-Sarpanch shall be deemed to be vacant. (4) In cases where the offices of both the Sarpanch and Upa Sarpanch become vacant simultaneously, the District Village Panchayat Officer or such other ofice as he may authorise in this behalf shall, pending the election of the Sarpanch exercise all the powers and perform all the functions and duties of the Sarpanch but shall not have the right to vote in any meetings of the panchayat. 20 It is contended that Rule 2(1) of the Rules lay down a procedure for convening meeting for consideration of no confidence against Sarpanch and Upa-Sarpanch and there is some purpose in prescribing presentation of two separate motions against Sarpanch and Upa-Sarpanch. The motion moved by members is required to contain charges and the 15 person against whom the motion is moved as well as the members of village panchayat are entitled to know as to what are the charges against office bearers. There might be separate charges against the office bearers and those are required to be considered separately. Relying on a judgment delivered by learned Single Judge of this Court (Nagpur Bench) in Writ Petition No.2212 of 2007 in the matter of Ashabai w/o Ashok Shinde Vs. Additional Commissioner, Amravati Division, Amravati, it is contended that provisions of Rule 2(1) of the Rules are mandatory in nature and on observance thereof vitiated the whole procedure. Reliance is placed on paragraphs 8 and 9 of the judgment, which are quoted as below: 8 Perusal of Rule 2(1) of the Rules lays down a procedure to be adopted by the members of Gram Panchayat who desire to move a motion of no confidence against Sarpanch and Upa-Sarpanch. Election to the post of Sarpanch and Upa-Sarpanch is governed by the provisions of the Act and the Rules, so also the motion of no confidence to be brought against elected Sarpanch or Upa-Sarpanch. The same is not a common law right. Rule 2(1) of the Rules provides that where the members desire to move a motion of no confidence against both Sarpanch as well as Upa- Sarpanch they shall give two separate notices. It cannot be said that the aforesaid words used in the Rule are superfluous or have been unnecessarily used. It is well settled that the legislature does not utilize the words without purpose. The fact that Rule 2(1) of the Rules which provides for two separate notices for Sarpanch and Upa-Sarpanch becomes significant particularly because a particular procedure has been provided therein. In the case of Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd. and others, reported in 2003 (2) Supreme Court Cases 111, the Supreme Court has clearly held that if a particular thing is required to be done by law in a particular manner, the same has to be done in the same manner and not in any other manner. I quote 16 the paragraph No.40 from the Supreme Court judgment cited supra. “40. The statutory interdict of use and enjoyment of the property must be strictly construed. It is well settled that when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all. The State and other authorities while acting under the said Act are only creature of statute. They must act within the four corners thereof.” 9 The judgments cited by Advocate Shri Narwade undoubtedly held those particular Rules and sub-Rules directory but they have been held so looking to the object sought to be achieved under those Rules. In the instant case, I find that there is a specific object of providing for two separate notices for Sarpanch and Upa-Sarpanch right from the inception. By two separate notices those members who do not desire to move motion of no confidence against Sarpanch may have desire to move such motion against Upa-Sarpanch or vice versa. Similarly, on the date of meeting of no confidence, some of those, who have signed the requisition against both may not like to vote in favour of or against the motion of no confidence