( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 4660 OF 2009 Nanasaheb s/o Dhondiram Mundhe, R/o Khandali, Tq. Gangakhed, District Parbhani. PETITIONER VERSUS 1. Additional Collector, Parbhani. 2. Gram Sevak, Gram Panchayat, Khandali, Tq. Gangakhed, Dist. Parbhani. 3. Gangasagar w/o Datta Pawar 4. Datta s/o Maroti Pawar 5. Laxman s/o Nivrati Jangale 6. Dnyanoba s/o Bhanudas Bhosle 7. Chandrakala w/o Manikrao Pawar 8. Sangram s/o Manikrao Pawar All r/o Khandali, Taluka Gangakhed, Dist. Parbhani. RESPONDENTS ..... Mr. S.V. Mundhe, advocate for the petitioner. Mr. N.N. Jadhav, AGP for the respondent/State. Mr. S.S. Thombre, advocate for respondents No. 4, 6 and 7. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 15th February, 2010] ORAL JUDGEMENT : 1. Challenge in this petition is to order rendered by learned Additional Collector, Parbhani, in ( 2 ) proceedings under section 7 of the Bombay Village Panchayat Act, 1958 (for short, “the BVP Act”) read with Rule-3 (1) of the relevant Rules bearing No. 209/A-2/VP/CR-5. By the impugned order, the petitioner was disqualified as Sarpanch of village panchayat, Khandali and was, therefore, discontinued to occupy the post. 2. Indisputably, the petitioner was elected as Sarpanch of village panchayat, Khandali in the month of August, 2005. He continued to work as such till passing of the impugned order. The respondents No. 3 to 8 filed application before the learned Collector, alleging that the petitioner was disqualified to continue as Sarpanch of the village panchayat because he had not held required number of Gram Sabha meetings and thereby had incurred disqualification under section 7 (1) of the BVP Act. The petitioner was called upon to explain lapses alleged in the application filed by the said respondents. He denied the lapses and also submitted that there were defects in arranging the required number of Gram Sabhas at the initial stage because he became ( 3 ) Sarpanch during midst of the year. The learned Additional Collector heard the parties. He called for report from the Block Development Officer, Gangakhed. He noticed that the meetings of the Gram Sabha were not called strictly in accordance with Section 7 (1) of the BVP Act and Rule-3 (1) of the Bombay Village Panchayat (Gram Sabha Meetings) Rules, 1959 (hereinafter referred to as “the BVP Rules”). Consequently, by the impugned order, the petitioner was held disqualified to continue as Sarpanch and the direction was given to initiate disciplinary action against the Gram Sevak. 3. Crucial question involved in this petition is : “Whether the petitioner incurred disqualification for the reason that he did not hold the six Gram Sabha meetings during the relevant financial year of his tenure in the office, as required under Section 7 (1) of the BVP Act ?” ( 4 ) 4. Heard learned counsel. 5. It is of paramount significance to consider actual requirement of section 7 (1) of the BVP Act. For, epicentre of the controversy revolves around interpretation of sub-section (1) of section 7 of the BVP Act. The petitioner’s contention is that the requirement was of holding atleast four (4) Gram Sabha meetings and not six (6) Gram Sabha meetings during the financial year. The Additional Collector took the view that holding of six (6) Gram Sabha meetings was mandatory. The next important aspect of the matter is whether the Rule 3 (1) of the BVP Rules is of mandatory nature or it is directory in nature notwithstanding use of expression “shall” in the language thereof. Needless to say, proper interpretation of sub-section (1) of section 7 and Rule 3 (1) is necessitated due to the nature of controversy in this petition. 6. Before I proceed to consider the rival submissions regarding the purport and meaning of section 7 (1), it may be noticed that section 7 (1) has ( 5 ) undergone changes due to intervening amendments after passing of the enactment in 1958. 7. The juxtaposition of section 7 (1) as it existed after amendment on 14-09-1994, was as below : “7. (1) There shall be held at least two meetings of the Gram Sabha every financial year on such date, at such time and place, as may be prescribed and if the Sarpanch, or in his absence the Upa-Sarpanch fails without sufficient cause, to hold any one of such two meetings, he shall be disqualified for continuing as Sarpanch or, as the case may be, Upa-Sarpanch or for being chosen as such for the remainder of the term of office of the members of the panchayat. The decision of the Collector on the question whether or not there was such sufficient cause shall be final; Provided that, the Sarpanch may, at any time of his own motion, and, shall, on requisition of the Standing Committee, Panchayat Samiti, or Chief Executive Officer, call a meeting of the Gram Sabha within the period specified in the requisition; and, on failure to do so, the Chief Executive Officer shall require the Block Development Officer to call the meeting within ( 6 ) fifteen days from the date he is so required to do. The meeting shall, notwithstanding the provisions of sub-section (3), be presided over by him or any officer authorised by the Block Development Officer, in that behalf.” 8. It appears that prior to amendment by virtue of Maharashtra Act No. 21 of 2000, Section 7 (1) contemplated that there shall be held at least three (3) meetings of the Gram Sabha every financial year. The words “three meetings” were substituted by the words “four meetings” by virtue of amendment under the Maharashtra Act No. 21 of 2000. 9. Section 7 (1) prior to the Amendment Act No. III of 2003 read as under : “7 (1) There shall be held at least four meetings of the Gram Sabha every financial year on such date, at such time and place, and in such manner, as may be prescribed and if the Sarpanch, or in his absence the Upa-Sarpanch fails, without sufficient cause, to hold any of such four meetings, he shall be disqualified ( 7 ) for continuing as Sarpanch or, as the case may be, Upa-Sarpanch or for being chosen as such for the remainder of the term of office of the members of the panchayat; and the Secretary of the panchayat shall also if, prima facie, found responsible of any lapse in convening such meeting, be liable to be suspended, and for being proceeded against, for such other disciplinary action as provided under the relevant rules. The decision of the Collector on the question whether or not there was such sufficient cause shall be final. Provided, that the Sarpanch may, at any time of his own motion, and, shall, on requisition of the Standing Committee, Panchayat Samiti, or Chief Executive Officer, call a meeting of the Gram Sabha within the period specified in the requisition; and, on failure to do so, the Chief Executive Officer shall require the Block Development Officer to call the meeting within fifteen days from the date he is so required to do. The meeting shall, notwithstanding the provisions of sub-section (3), be presided over by him or any officer authorised by the Block Development Officer in that behalf.” 10. After amendment by virtue of Maharashtra Act ( 8 ) No. III of 2003, Section 7 (1) read as follows : “7 (1) There shall be held at least six meetings of the Gram Sabha every financial year on such date, at such time and place and in such manner, as may be prescribed and if the Sarpanch, or in his absence the Upa-Sarpanch fails, without sufficient cause, to hold any of such six meetings, he shall be disqualified for continuing as Sarpanch or, as the case may be, Upa-Sarpanch or for being chosen as such for the remainder of the term of office of the members of the panchayat; and the Secretary of the panchayat shall also if, prima facie, found responsible of any lapse in convening such meeting, be liable to be suspended, and for being proceeded against, for such other disciplinary action as provided under the relevant rules. The decision of the Collector on the question whether or not there was such sufficient cause shall be final. 11. The Amendment Act No. III of 2003 to relevant provision reads as follows : “Sec. 2 – Amendment of Section 7 of Bom. III of ( 9 ) 1959 – In section 7 of the Bombay Village Panchayats Act, 1958 (hereinafter referred to as “the principal Act”), - (a) in sub-section (1), -- (i) for the words “four meetings” the words “six meetings” shall be substituted; (ii) after the existing proviso, the following provisos shall be inserted, namely :- “Provided further that, a period of not more than three months shall be allowed to elapse between the two meetings of the Gram Sabha : Provided also that, if the Sarpanch or Upa- Sarpanch, as the case may be, fails to call any such meeting within the specified period, the Secretary shall call the meeting and it shall be presumed that such meeting has been called with the concurrence of the Sarpanch or, as the case may be, Upa-Sarpanch.” 12. Tracing back the changes in the provisos appended to section 7, it may be gathered that initially holding of the Gram Sabhas was restricted to “two” for every financial year and there was no disqualification provided for. Subsequently, failure to hold any one of such two Gram Sabhas was held as the lapse which could cause disqualification of the Sarpanch. Thereafter, the ( 10 ) law mandated holding of at least three Gram Sabhas out of four Gram Sabhas in every year. The legal position thereafter required holding of six (6) Gram Sabhas in a year, out of which four (4) were mandatory to avoid disqualification. The further amendment was to the effect that the Sarpanch or Upa-Sarpanch was required to hold six Gram Sabhas and non-holding of any of such six Gram Sabhas, if the present proviso is accepted as it is, would disqualify the Sarpanch or Upa-Sarpanch, as the case may be. Obviously, the question is whether it is mandated that all the six Gram Sabhas are compulsorily required to be held by the Sarpanch or Upa- Sarpanch, if he is to continue in the post. The amendment carried out by Act III of 2003, if is taken as it is, would obviously mean that failure of the Sarpanch or Upa-Sarpanch to hold any of the Gram Sabhas, out of the Six will incur the disqualification. Here comes, the question of purposive interpretation. 13. One cannot be oblivious of the fact that after the amendment by Act No. III of 2003, further provisos have been added in addition to the previous single ( 11 ) Proviso. One of the added proviso is thus : “Provided further that a period of not more than three months shall be allowed to elapse between the two meetings of the Gram Sabha.” The proviso reveals that a gap of not more than three months can be allowed in between the two meetings of the Gram Sabha. Needless to say, a maximum gap could be of three months. Mr. Mundhe contends that if such gap is permissible, then during the period of one financial year, the Gram Sabha meetings could be only four and not more. Otherwise, the proviso becomes superfluous. 14. True, the words “four meetings” were substituted by the words “six meetings”, without indicating whether such substitution was only in the first part of the sub-section (1) or also included both parts thereof. In the first part of sub-section (1), the number of Gram Sabhas required to be held is stated. It is followed by the penal consequences due to non- holding of a particular number of Gram Sabhas. ( 12 ) 15. Mr. Mundhe would submit that the very requirement to leave a maximum gap of three months in between the two meetings as contemplated under second proviso appended to section 7 (1) of the BVP Act is indicative of intention of the Legislature to restrict compulsory number of meetings only to the extent of “four”. He would submit that the amendment pertains to only the first part of sub-section (1) of section 7 and has no concern with the subsequent part. I find it difficult to interpret the provision in such a manner only because the proviso allows that period of not more than three months could be kept between the two meetings of the Gram Sabha. For, there is no prohibition in section 7 to hold more than six number of Gram Sabhas. A Sarpanch is at liberty to hold even a dozen of Gram Sabhas if he so requires in the interest of administration of the village panchayat. The proviso contemplates that more than three months shall not be allowed to be the gap between the two Gram Sabhas. It means the minimum gap of period can be of any period less than three months if consecutively such meetings ( 13 ) are held within short period. For example, a Gram Sabha meeting if is held on 26th January, then next Gram Sabha meeting could be held in the first week of February because less than three months gap of time could be in between such meetings. Needless to say, the second proviso to sub-section (1) does not provide key for interpretation of section 7 (1) in the context of mandatory nature of the number of Gram Sabhas which are required to be held. If at all it provides for the key, then the same is to be interpreted in favour of the purposive and literal interpretation as per the plain language of sub-section (1). On plain reading of sub- section (1) of section 7, it is amply clear that the first part of the sub-section indicates that there shall be at least six meetings of the Gram Sabha whereas the subsequent part shows that if the Sarpanch or Upa- Sarpanch fails without sufficient cause to hold any of such six meetings, he shall be disqualified. Needless to say, the intention of the Legislature is to provide for minimum number of the Gram Sabhas which compulsorily are required to be held. ( 14 ) 16. The purpose for providing minimum number of Gram Sabhas is to ensure that there is maximum participation of the villagers in the affairs of the local self-government, namely, the village panchayat. The village panchayat should not be the machinery at the hands of only few elected members nor the Sarpanch or Upa-Sarpanch should have the exclusive control over the affairs, excluding the opinion of the villagers on subjects of development, seems to be the intention at the bottom of such provision. If this aspect is considered, it is amply clear that the expression “at least” as used at the beginning of sub-section (1) of section 7, indicates minimum compulsory number of meetings to be held. It is amply clear that previously, the four of such meetings could be regarded as suffice in order to avoid disqualification. However, now by virtue of the 2003 amendment, the concession given to avert the disqualification is taken away and all holding of the six of such meetings is made mandatory. The proper interpretation of section 7 (1) is that the minimum number of Gram Sabha meetings is provided for without providing any maximum number of the Gram Sabha ( 15 ) meetings. It therefore follows that unless sufficient cause is shown by the Sarpanch or Upa-Sarpanch for holding less than required number of Gram Sabhas, the disqualification would follow. Had it been that the expression “at least” would have preceded the penal clause in the third sentence of sub-section (1), then perhaps there was some scope to interpret sub-section (1) differently. The purposive and pragmatic interpretation of Section 7 (1) shows that it is peremptory in nature. 17. So far as fact situation in the present case is concerned, it is undisputed that for the year 2005-2006, only two Gram Sabha meetings were held. In the year 2006-2007, only five Gram Sabha meetings were held. There was shortfall of four such meetings in the first year 2005-2006 and there was shortfall of one such Gram Sabha meeting in the year 2006-2007. The petitioner did not offer any explanation for omission to convene the required number of Gram Sabha meetings. His written statement (Ex-C), in fact, does not contain any sufficient explanation. He simply denied the contents ( 16 ) of the relevant paragraph of the application. He attributed ill-will to the respondents No. 3 to 8. In fact, had he sufficiently explained the lapses, the Collector could have been called upon to consider such explanation. Needless to say, the fact remains that there was no explanation given by the petitioner in his written statement about omission to hold the required number of Gram Sabhas. It is true that he took over as Sarpanch in the midst of the year 2005-2006. As stated earlier, there was no prohibition imposed to conduct the subsequent meetings during the relevant period after his taking over as Sarpanch. Moreover, he could have explained that he was not required to conduct certain meetings prior to his taking over as Sarpanch due to the reason that he was not in the office or had faced certain difficulties in conducting the meetings after his taking over. Nothing of the sort was done by him. 18. Considering the reasons aforestated, I find it difficult to interfere with the findings of facts rendered by the learned Collector. The impugned order does not suffer from arbitrariness or perversity. ( 17 ) Hence, in the exercise of supervisory jurisdiction under Article 227, the impugned order need not be interfered with. Consequently, the petition is dismissed. No costs. [ V.R. KINGAONKAR ] JUDGE NPJ/wp4660-09