1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4529 OF 2009 Anandsing Dongar Kuwar .. Petitioner Versus The State of Maharashtra through Tahsildar Sakri and others. . Respondents. --- Mr. Ajay Deshpande, Advocate for petitioner. Mr. S.P. Shah, Advocate for respondent Nos. 2 to 9. Mr. C.V. Korhalkar, Advocate for respondent Nos. 10 and 11. CORAM : B.R. GAVAI,J. DATE OF RESERVING THE ORDER : 13th November, 2009. DATE OF PRONOUNCEMENT OF THE ORDER : ORDER :- 1] The petitioner has approached this court challenging the order passed by the learned Additional Commissioner, Nasik 2 Division, Nasik, in Gram Panchayat Appeal No. 32/2009, dated 4th July, 2009, thereby allowing the appeal filed by the respondent Nos. 2 to 9 herein, thereby setting aside the order passed by the learned Additional Collector, Dhule dated 14/3/2009, and confirming the “No confidence motion” passed against the petitioner in the meeting dated 30th December, 2008. 2] The facts in brief, giving rise to the present petition are as under :- . The petitioner was elected as Sarpanch of village Balsane, Taluka Sakri, District Dhule. The respondent Nos. 2 to 9 herein (hereinafter referred as “the contesting respondents”), had served a notice on 24th December, 2008, proposing to move a no confidence motion against the present petitioner. The said notice was received by the respondent No.1 on the same day. Accordingly, the respondent No.1 convened a meeting dated 30th December, 2009, for considering the no confidence motion against the petitioner . In the said meeting, the motion came to be passed by a majority of 8 : 1. The contesting respondents had supported the motion of no confidence, whereas, the respondent No.10 had opposed the motion of no confidence. . Being aggrieved thereby, a dispute was preferred by the petitioner under Section 35 of the Bombay Village Panchayat Act 3 ( hereinafter referred to as “the said Act” for sake of brevity) before the Additional Collector, Dhule. The same was allowed vide order dated 14th March, 2009, by holding that there was no valid service of the notice of meeting on the petitioner held on 30th December, 2008 and as such, the no confidence motion passed against the petitioner was held to be illegal. . Being aggrieved thereby, the contesting respondents preferred an appeal under Section 35(3C) of the said Act. The same is allowed. Hence, the present petition. 3] Shri Deshpande, the learned counsel appearing on behalf of the petitioner submits that the notice of meeting dated 30th December, 2008, was not served on the petitioner. He submits that a valuable right is made available to the petitioner under the provisions of the said Act and by non service of notice of meeting on the petitioner, the petitioner has been deprived of the valuable right to put up his case. The learned counsel submits that had the petitioner been present in the meeting , he would have pointed out to the members, that the allegations made against him were without substance and persuaded them not to vote against him. The learned counsel relies on the judgments of the learned Single Judge of this court in the case of “ Bhika Narayan Gangurde Vs. State of Maharashtra and others” reported in 2002(1) Bom.C.R. 186., and in the matter of “ Indubai Vedu Khairnar Vs. State of Maharashtra and 4 others “ reported in 2003(2) Bom.C.R. 239 and the judgment of the Division Bench of this court in LPA No. 194/2007. 4] Per contra, Shri S.P. Shah, learned counsel appearing on behalf of the contesting respondents submits that the motion is passed by a requisite majority of 2/3rd members. It is submitted that from the record, it is clear that though a notice was sought to be served on the petitioner, he avoided the service and, therefore, it was duly served upon the adult member in his family. It is further submitted that when a notice of no confidence is considered, two types of notices are required to be served. The first notice is under Rule (2) of the Bombay Village Panchayat, Sarpanch and Upa Sarpanch Rules, 1975 ( Hereinafter referred to as “the No Confidence motion Rules”) and under Rules 6 and 7 of the Bombay Village Panchayat Meeting Rules, 1959 ( hereinafter referred to as “the meeting Rules” ) . He submits that there is no grievance by the petitioner that the notice under the No Confidence Motion Rules is not received by the petitioner. It is, therefore, submitted that no prejudice can be said to have been caused to the petitioner. 5] For appreciating the rival submissions, it will be necessary to refer to Section 35 of the said Act, which reads thus :- “A motion of no confidence may be moved by not less than (one third of the total number of members, 5 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 of the notice under sub-section (1), the Tahsildar, shall convene a special meeting 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). If the motion is carried by a majority of not less than two third of the total number of members who are for the time being entitled to sit and vote at any meeting of the panchayat or the Upa- Sarpanch, as the case may be, shall cease to hold the 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 vacated. Provided that, where the office of the Sarpanch being reserved for a woman, is held by a woman Sarpanch, such motion of no confidence shall be carried only by a majority of not less than 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. Provided further 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. (3A) If the motion is not moved or is not carried by 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 6 Sarpanch or, as the case may be, the Upa- Sarpanch within a period of one year from the date of such special meeting. (3B) 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, refer the dispute to the Collector who shall decided it, as far as possible, within fifteen days from the date on which it was received by him; and any such decision shall, subject to an appeal under sub-section (3C) be final. (3C) 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. (3D) 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 officer as he may authorize 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.” 7 It will also be necessary to refer to Rule (2) of the No Confidence Motion Rules which reads thus : 2. Notice of no confidence :- (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 Tahsilder 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) (a) The notice under sub-rule(1) shall be accompanied by seven additional copies thereof, and (b) the Tahsildar shall send : (i) one copy to the Sarpanch, (ii) one copy to the Upa-Sarpanch, and (iii) one each to : A. the Zilla Parishad, B. the Panchayat Samiti, C. the Collector, and D. the Commissioner. One copy shall also be given to the Secretary. (3) The Tahsildar shall :' (a) 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 (b) then convene a special meeting for the purpose within 7 days from the date of such notice. 8 It will also be necessary to refer to Rules (6) and (7) of the Meeting Rules, which read thus : “6. Information of date of meeting :-(1) A notice stating the date, time and place of every meeting of the Panchayat and of the business to be transacted thereat, shall be placed on the notice board at the office of the Panchayat. An Announcement of the date of every meeting shall also be made by beat of drum : (a) in the village, an (b) if there are more than one village, in each of such villages, not later than the day immediately following the day on which the notice had been affixed as aforesaid . 1. (2) Every meeting of the Panchayat shall be held in the office of the Village Panchayat or the village Chavdi. Provided that the Panchayat may, if possible, hold at least one meeting during every financial year in the localities where the population of Scheduled Castes is concentrated. (7). Service of Notice :- Every notice under these rules shall, if practicable, be served personally by delivering or tendering it to the member to whom it is addressed or if such person is not found, by giving or tendering it to an adult male member of his family, who is residing with him. (i) If there is no such person to whom notice can be given or tendered, or (ii) where the member, or as the case may be, in his absence, such adult male member, is present but refuses to accept the notice, It shall be served by affixing it, in the presence of two witnesses, on the outer door or some other 9 conspicuous part of the house in which the member ordinarily resides. If none of the aforesaid modes of serving notice is feasible, the notice shall be affixed, in the presence of two witnesses, on some conspicuous part of the house in which the member is known to have last resided or carried on business or personally worked for gain.” 6] It can thus be seen that in view of Rule (2) of the No Confidence Motion Rules, if the members of the panchayat, desire to move a motion of no confidence, they are required to give a notice to the Tahsildar in the prescribed form. The said notice is required to be accompanied by 7 additional copies. It can also be seen that one copy is required to be sent to the Sarpanch. It can further be seen that once the Tahsildar is satisfied that the notice has been given by not less than 1/3rd of the total number of members ( other than associate members), he is bound to convene a special meeting for the purpose within 7 days from the date of such notice. It is thus clear that immediately after a notice is received from the members proposing a no confidence motion, the Tahsildar is bound to send a copy of the said notice to the Sarpanch. In the present case, there is no dispute raised by the petitioner that he has not received a copy of the said notice. It can also be seen that within a period of 7 days after receipt of the notice, the Tahsildar is bound to convene a meeting. It is thus clear that the Sarpanch who 10 receives a copy of the notice issued by the Tahsildar under Rule (2) of the No Confidence Motion Rules, is very well aware that a meeting of No confidence would be convened against him within a period of 7 days from the date of receipt of such notice,by the Tahsildar. 7] From the perusal of Rule (6) of the Meeting Rules, it would reveal that a notice stating the date, time and place of every meeting is required to be placed on the notice board of the office of the panchayat. Perusal of Rule (7) would revel that every notice under these rules shall, if practicable, be served personally by delivering or tendering it to the member to whom it is addressed or if such person is not found, by giving or tendering it to an adult male member of his family, who is residing with him. . It can be seen from the record that though the Talathi has tried to serve the notice on the petitioner, he has avoided receipt of the notice and as such,the Talathi has served it on the petitioner's son, who, admittedly is an adult male member of his family, residing with him. Perusal of the record, which was called by this court, would fortify this position. The Tahsildar on an affidavit has also specifically stated about the service of notice on the petitioner's son, by the Talathi. 8] In this background, it would be relevant to refer to the provisions of Section 35. Perusal of Section 35 would reveal that 11 even after the No Confidence Motion is passed by a requisite majority, merely because a dispute is pending before the Collector or an appeal is pending before the Additional Collector, the effect of the No Confidence Motion stands stayed and the person against whom the No Confidence Motion has been passed, continues to hold the office, though he is has lost support of the majority. A judicial notice can be taken of the fact that in view of this lacuna in the legislative provision, there is a tendency on the part of the persons in office to avoid service on one count or the other and then to file a dispute before the Collector and an appeal before the Commissioner and continue to drag in the office, for months, though they have lost the mandate of the majority. 9] The Apex Court in the case of “ Babubhai Muljibhai Patel Vs. Nandlal Khodidas Barot and others” reported in (1974) 2 SCC, 706, had an occasion to consider the provisions of Section 38 of the Gujarat Municipalities Act. The Apex Court, in the said case, has observed thus :- “There is a difference between a motion of no confidence and a censure motion. While it is necessary in the case of a censure motion to set out a ground or charge on which it is based, a motion of no confidence need not set out a ground or charge. There is no legal bar to the passing of a motion of no confidence against an authority in the absence of any charge of impropriety or lapse on the part of that authority. The essential connotation of a no confidence motion is that the party against whom such motion is passed has ceased to 12 enjoy the confidence of the requisite majority of members.” 10] The Division Bench of this Court in the case of “ Annapurnabai Ajabrao Vs. Annapurjabai Anandrao” reported in 1967 Mh.L.J. NOC 36, has observed thus :- “Even if it were to be assumed that there was some technical flaw in the proceedings of the meeting or in transmission of the results of the meeting to the Panchayat Samiti, we do not see how that could entitle the petitioner to claim to continue as Sarpanch of the Gram Panchayat. A Gram Panchayat is essentially a democratic institution which must be run on democratic principles. When the majority of the members have clearly expressed that they do not desire the petitioner to be their leader and Sarpanch, appropriate attitude of the petitioner as a person working for democracy whatever have been to tender her resignation straightway. At any rate, it does not behave of democratic spirit to challenge the decision of the majority who unmistakably declared their want of confidence in their erstwhile leader. Democratic principles as has also a sense of self respect should have been impleaded the petitioner and persons situated in similar circumstances to graciously submit to the decision of the majority and to walk out of the Gram Panchayat. Notice raising frivolous contention and forcing herself on the democratic institution it does not want her to hold that position.” . The Division Bench of this court in the matter of “Nimba Rajaram Mali Vs. Collector, Jalgaon” reported in 1999(1) Bom.C.R. 546, relying on the case of “Annapurnabai Ajabrao” has observed thus :- “In a democratic society, what is important is the will of the majority and the elected representatives must honour the will of the majority. It is immaterial to analyse and debate on the reasons behind the will of 13 the majority or the specific reasons for such will being expressed. The will of the majority is of paramount importance and it must be respected by all elected representatives responsible for the governance of such democratic institutions. As observed by the Apex Court in the case of Babubhai (supra) resolution of No Confidence Motion is different from Censure Motion and such a resolution cannot be faulted on the ground that there were no reasons or reasons were vague and lacked detailed specifications. Once a resolution of the No Confidence Motion is passed, by a clear majority and in keeping with the requirements of the concerned statutory provisions, the person against whom such a resolution is passed must honour the will of the majority and make way for the new election of his successor Unless it is shown that while passing such a resolution of No Confidence Motion, there was flagrant violation of any of mandatory procedure laid down, such a resolution cannot be interfered with by the court or statutory authorities adjudicating such disputes” 11] In so far as the reliance placed by the learned counsel for the petitioner on the judgment of the learned Single Judge of this court, in the matter of “ Bhika Gangurde” (cited supra) is concerned, the perusal of the judgment would reveal that the judgment of the Apex Court in the matter “K Narsimhaiah Vs. H.C. Singri Gowda” reported in AIR 1066 SC 330, so also, the judgment of the Division Bench in the matter of “ Annapurnabai Ajabrao Vs. Annapurjabai Anandrao” reported in 1967 Mh.L.J. NOC 36,were not brought to the notice of the learned Single Judge. The Division Bench of this court in the case of “Annapurnabai” (cited supra) has held that when a person has lost confidence of the majority, he has no right to continue in the office of 14 Sarpanch by raising some hypertechnical grounds. In a democratic society the will of the majority is paramount. If the view taken by the Division Bench in the case of Annapurnabai is not followed, it will create a chaotic situation, like in the present case, though 8 members are against the petitioner, if he is thrust against the wishes of the majority as their leader and continued to work as Sarpanch, the entire functioning of the Gram Panchayat would come to a stand-still. It has been categorically stated in the affidavit filed by the contesting respondents that no developmental work has been taken after the No Confidence Motion was passed and as such, the villagers have been deprived of the developmental projects earmarked for the village. 12]. It is further difficult to appreciate that when the petitioner was served with a notice under Rule (2) of the No Confidence Motion Rules and he was aware that a meeting of no confidence motion would be convened within a period of 7 days by the Tahsildar, he was not aware about the meeting scheduled to consider the no confidence motion. It has been categorically stated in the affidavit filed by the contesting respondents that in view of the dispute between the 2 groups, various officers from the Revenue Department were present when the proceedings of the meeting were conducted. Not only this, but heavy police Bandobast was there on the date of the meeting for maintaining law and order. This position has not been controverted. In any case, the notice of no confidence 15 motion has been served by the Tahsildar with the assistance of Talathi. No allegations of malafides or bias are made either against the Tahsildar or Talathi, that the notice of meeting of no confidence was not served by the Tahsildar or Talathi with an ulterior motive. 13] It is also not in dispute that a notice was duly displayed on the notice board of the Village Panchayat. In this background, I do not find any reason to disbelieve the affidavit of the Tahsildar, which is fortified from the record, that though the Talathi had attempted to serve the notice on the petitioner, he avoided the service and as such, notice was served on his son, who is an adult member in his family, residing with him. 14] As discussed hereinabove, that in view of the lacuna in Section 35 of the Bombay Village Panchayat Act, there is a growing tendency amongst the persons in office, to anyhow avoid service and then contest the no confidence motion before the Collector and Commissioner and continue in office for months together. At the cost of repetition, I must say that, in consonance with the view taken by the aforesaid two Division Benches in the case of “Annapurnabai Ajabrao” and “Nimba Rajaram “ in a democratic State it is the will of the majority that must prevail. Once a person looses the confidence of the majority, as required under the statute, 16 he has no right to continue in the office and thrust himself against the wishes of the majority of