1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9174 OF 2007 Anant Bhiva Madhavi .. Petitioner Versus Gram Panchayat, Sonale & Ors. .. Respondents Mr.Sandesh Patil for petitioner Mr.R.M.Patne, A.G.P. for respondent No.4 Mr.Anil Kumar Patil for respondent No.3. CORAM : S.C.DHARMADHIKARI, J. DATE : 20th February 2008 P.C. . Rule. Respondents waive service. Since all parties are before me and a short point is involved, petition is heard forthwith by consent. 2 2. The petition impugns the orders dated 6th December 2007 delivered by the Divisional Commissioner, Konkan Division, Mumbai and that of the Collector dated 22nd November 2007. 3. The proceedings are under the Bombay Village Panchayat Act, 1958 (Act for short), more particularly those under section 35 dealing with "No Confidence Motion". Section 35 reads thus:- "35. (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 first 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 Such notice once given shall not be withdrawn. 3 (2) Within seven days from the date of receipt by him of the notice under sub-section (1), the Tahsildar shall convene a special meeting of the panchayat at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) (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 or the Upa-Sarpanch, as the case may be shall cease to hold office after seven days from the date on which the motion 4 was carried unless he has resigned earlier or has disputed the validity of the motion so carried as provided in sub-section (3B); 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). (3A) If the 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 5 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 decide 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 6 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 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 7 by such Sarpanch or Upa-Sarpanch shall be deemed to be vacant; (3E) 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 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" 4. The short point that is involved is whether the meeting to consider No Confidence Motion against the petitioner is convened and presided over by an officer who has been named under the aforesaid provisions or not and whether non compliance thereto makes the entire process bad in law? 8 5. The undisputed factual position is that the petitioner was elected as Sarpanch of Village Sonale. The election was held in November 2005 and the petitioner was elected as Sarpanch. Respondent Nos. 3 and seven others who were members of this Gram Panchayat issued notice on 6th October 2007, requesting Tahsildar Bhivandi to convene a meeting to express "no confidence motion" in the petitioner. 6. Pursuant to that notice, Tahsildar Bhivandi took steps to convene the meeting on 15th October 2007. He despatched a communication dated 10th October 2007 in accordance with the subject provisions and the rules and the meeting thus stood convened on the date, time and venue which has been mentioned in the communication. 7. Further, at this meeting, "no confidence motion" was moved and carried. Thus, the motion 9 resulted in the members expressing their no confidence in the petitioner. Eight members voted in favour and three against the motion. 8. The petitioner impugned the "no confidence motion/resolution by moving the Collector who has been stipulated as an Authority under section 35(3C). Appellate powers are conferred upon the Collector under this provision. Petitioner, inter alia, contended that the meeting which has to be convened and presided over must be by the Tahsildar and none other. In the present case, the meeting was not presided over by the Tahsildar and, therefore, all proceedings in pursuance to such meeting are ex facie bad in law. They are vitiated by non compliance with section 35(2) of the Act. 9. The Collector and Commissioner have held that there is no substance in the contention of petitioner that meeting is vitiated for non 10 compliance with section 35(2) of the Act. Their finding is that the meeting has been presided over by the Naib Tahsildar. The observations of the Commissioner and findings in that behalf read thus:- ". Second contention is that Tahsildar himself did not presided over the meeting and some other person not even Naib Tahsildar has held the meeting. It is seen from the parawise reply of the Collector that due to some unavoidable reason, Tahsildar Bhivandi was on leave on that day of meeting and hence, Naib Tahsildar Bhiwandi has held the meeting. As Tahsildar includes Naib Tahsildar and Tahsildar was on leave, the meeting hold by Naib Tahsildar Bhivandi cannot be called an illegal meeting." 10. Thus, the Collector has not addressed 11 himself to this aspect at all and the Commissioner holds that the Tahsildar Bhivandi was on leave and hence Naib Tahsildar held the meeting. 11. When this matter was placed before me earlier, I had directed learned A.G.P. orally to take instructions and file an affidavit of a competent authority, setting out therein as to who presided over the subject meeting. 12. The affidavit has been filed by Tahsildar Bhivandi which reads thus:- ". I say that the meeting for No Confidence Motion was called by Tahsildar Smt.Sangeeta Takale, on 15/10/2007 the said meeting was presided over by Mr.J.P.Bhat, who was Supply Inspecting Officer, Tahsil Office, Bhiwandi, Dist.Thane. The said post is equivalent 12 to Naib Tahsildar." 13. At the hearing today, Mr.Patne, learned A.G.P. relying upon a judgement of a learned Single Judge (D.G.Karnik, J) in the case of Sahebrao Khandu Patil & Ors. Vs. Joharabai Latif Patel & Ors. reported in 2003 (1) B.C.R. 172 submits that the meeting and the proceedings are not vitiated because the Tahsildar was on leave. The meeting has been presided over by Supply Inspecting Officer, Tahsil Office, Bhivandi, whose status is equivalent to that of Naib Tahsildar. This fact has not been substantiated by producing any document or nature of duties or other particulars. That apart, the decision of this Court in the above case, clearly proceeds upon the factual position that in the concerned meeting before this Court, the Naib Tahsildar had indeed been assigned duties of Tahsildar. The learned Judge in para 6 observes that the Act does not define the word 13 "Tahsildar". They are revenue officers and, therefore, working and functioning under the Maharashtra Land Revenue Code. The Code also does not define "Tahsildar" or "Naib Tahsildar". The Code providing for hierarchy of Revenue officers and finding that under the Code Tahsildar is entitled to delegate his powers to Naib Tahsildar, when he is unable to perform duties, therefore, the acts performed by Naib Tahsildar be taken as that of the Tahsildar. This reasoning does not permit some other officer to preside over the meeting. More so, when the presiding officer is neither Tahsildar nor Naib Tahsildar. If such course is permitted, it would make mockery of the entire process. 14. Ultimately, the Legislature has chosen the Tahsildar at Panchayat level to convene and preside over the meeting because he is a Revenue officer and maintains all Revenue Records of the village. He is an independent officer, in whom 14 persons opposed to each other in the democratic process, have faith and trust. He is not part of the elected body but independent thereof. Now, to permit the Supply Inspecting Officer working in the Tahsil office of Bhivandi to preside over such meeting would render the provisions wholly redundant and nugatory. I have reproduced section 35 only with a view to emphasise that Motion of No Confidence which is dealt with by section 35 is something which emanates after the same is moved by giving notice to the Tahsildar in the prescribed form. Such notice once given cannot be withdrawn now. In both provisions viz., sub-sections 1 and 2, the word used is "Tahsildar". He shall convene a meeting is the mandate, therefore, he must preside over it is the expectation as well. The provisions with regard to Presiding Over the meeting may be directory but it is not permissible to ignore them completely. None disputes before me that it has not been presided over by the Tahsildar or 15 even Naib Tahsildar as envisaged in the Judgement of this Court. It is not even presided over by the delegated officer i.e. Naib Tahsildar. It is conceded by the learned A.G.P. that the Supply Inspecting Officer working in Tahsil office is not a Revenue Officer. He is looking after Distribution and Supply of Essential Commodities. There is no authorisation in his favour although it is claimed that he is working in the Tahsil office. Thus, it is clear that there is no material placed on record demonstrating the authority and status of the supply inspection officer. How his acting as Presiding Officer satisfies the requirement of Section 35(2) is not clear. More so, when this officer does not sign the minutes of the meeting. There is nothing in the affidavit of Tahsildar which would indicate that when the Tahsildar was on leave, his duties are being performed either by Naib Tahsildar or by an officer equivalent in the rank of Tahsildar. The minutes of the 16 proceedings are signed by the Tahsildar but that does not cure or condone the alleged illegality. In this behalf, a reference can usefully be made to the decision of the Calcutta High Court in Rabanmahato and Ors. Vs. State and Ors., reported in A.I.R. 1997 Calcutta 368 (paras 6 to 8). The same read thus:- "6. ..... The prescribed authority is required to be appointed by the State Government in terms of Section 2(19) of the Act. He is a statutory authority. I am of the considered opinion that the presence of the observer in the meeting by itself is a sure guarantee and an assurance about the sanctity that would be attached to the proceedings of the meeting and that the proceedings would be recorded truly and faithfully. The observer representing the prescribed authority is required to submit a report 17 to him and, he being the prescribed authority’s duly appointed representative, the prescribed authority is required in turn to act upon such report and pass appropriate order." "7. It is no doubt true that a resolution for removal of a Pradhan is to be carried out by a majority of the votes of the members present and voting in a meeting. It is also no doubt true that it is the members who decide about the fate of such a motion and that nobody else is to vote upon a motion of removal of a Pradhan. But it does not do away with the basic requirement about somebody being nominated to observe the proceedings of the meeting, as a representative of the prescribed authority and this to ensure that the proceedings are carried out in accordance 18 with law and that the record of proceedings is maintained truly and faithfully. The presence of the observer not only lends credence to the proceedings but it also tells everyone outside the meeting as to what all actually transpired in the meeting, how and in what manner." "8. The observer being the official representative of the prescribed authority which itself is statutory in character thus has been entrusted with the task of the recording the minutes of the proceedings of the meeting. The absence of the observer therefore from the meeting undoubtedly renders the very holding of the meeting illegal and thus tends to invalidate its proceedings. It thus follows that if a meeting is being held in the absence of the observer, duly 19 appointed by the prescribed authority, the holding of such a meeting its proceedings and any resolution or motion that may be alleged to have been adopted therein, all should be deemed to be non-est in the eyes of law, invalid and incapable of being implemented or acted upon." 15. The Bombay Village Panchayat Act is an Act to amend and consolidate the law relating to the Constitution and administration of Village Panchayats in the State and for certain other matters. Now, after the constitutional Amendment inserting Part IX and Part IX A in the Constitution of Panchayati Raj is part of the Constitutional Scheme. Duties and functions of the Panchayats are set out in the Constitution. Their status and position as Institutions of Local self Government is important in the constitutional set up. Therefore, after the 20 panchayati raj has been given such status, then, it will not be proper to ignore this constitutional mandate. Therefore, provisions such as section 35 which have been incorporated with some specific object but at the same time inserting a safeguard therein, need to be considered in this background. The Act has been amended after the Constitutional amendments. Now a notice requesting convening of meeting to pass a no confidence motion cannot be withdrawn. Further, the meeting has to be convened and presided over by the Tahsildar. The provisions incorporate a safeguard and guarantee about smooth and fair conduct of proceedings. An independent authority is chosen at the Taluka and village administration level. The function that the said authority discharges makes it clear that it has not to take part in the political moves but has to ensure the purity of democratic process and of elections. In such circumstances, if the meeting is allowed to be presided by 21 anybody from the Tahsil office, would make a complete mockery of the democratic process. Therefore, it will not be possible to uphold the arguments of the learned A.G.P. in this case that the Supply Inspecting Officer is authorised to preside over the meeting and the meeting presided over by him is not vitiated. It is pertinent to note that while dealing with this contention, the lower auethorities hold that the Naib Tahsildar presided over the meeting. Now, it is urged that the meeting is presided over by the Supply Inspecting Officer but perusal of the record shows that the minutes are not signed by him. The minutes in this case, copy of which is annexed to the petition, mention the name of the Tahsildar and appear to have been signed by or for him. That is an additional ground for not upholding the contentions of the State. 16. In the present enactment person designated is not merely an observer, but is 22 expected to preside over the meeting, which position is much higher and responsible. In such circumstances, on this short point alone the entire proceedings are vitiated. It cannot be said that the no confidence motion has been passed in compliance with Section 35(2) of the Act. None disputes that if this is not complied with, then the final decision is also unsustainable being bad in law ex facie. The Commissioner and the Collector ought to have gone into this aspect. Mr.Patil for respondent No.3 submits that at this stage this Court must direct either the Commissioner or Collector to apply his mind to this aspect and pass orders afresh. 17. Ordinarily this could have been acceded to. However, in the facts of this case when an affidavit has been filed by the Tahsildar himself pointing out that Supply Inspecting Officer has presided over the meeting and there is nothing set out about his authority to do so, then, to my 23 mind, no useful purpose will be served by acceding to the request of Mr.Patil and remanding the matter. 18. The above factual position would mean that the meeting itself was not convened in accordance with section 35(2). In the sense, it being not presided over by the tahsildar, the Resolution passed therein would have no legal effect. Thus, the petition succeeds. 19. The decision of the learned Single Judge (supra) is clearly distinguishable on facts. Therein, on facts, it was pointed out that the Naib Tahsildar had indeed convened and presided over the meeting. It is in such circumstances that the proceedings were held to be properly convened and the resolution passed therein was not disturbed or interfered with. Such is not the case here. In these circumstances, the impugned orders passed by the Collector and 24 Commissioner cannot be sustained. They are accordingly quashed and set aside. Rule is made absolute accordingly in terms of prayer clause (a). 20. Mr.Patil states that ultimately this is a democratic process and at the root of the whole case is that the petitioner has lost confidence of majority. The majority having moved against him but the proceedings being quashed and set aside only for non compliance with the requirement of competent officer presiding over the meeting, then, it is fit case where this Court should not restore status quo ante but permit the democratic process to continue. In other words, a person like respondent No.3 in whom the majority having confidence now being elected and having taken over should be allowed to continue. In my view, whatever is the legal consequence of the order passed by the Collector and Commissioner being set aside must follow. If 25 the orders in appeal and other proceedings are bad in law, being vitiated by total non application of mind so also error apparent, it must be held that the no confidence motion was not carried in accordance with law. All consequences thereof must, therefore, follow. If the legal consequences are that the notice of No Confidence is legal and valid and therefore, the motion of No Confidence being on record, a fresh meeting can be convened to discuss and debate upon the same, then, even that is permissible. More so, when it is pointed out that the No Confidence Motion cannot be withdrawn. 21. At this stage Mr.Patil requests for stay of this order. The impugned orders are passed on 6th December 2007 by the Commissioner and 22nd November 2007 by the Collector. Since, on account of proceedings at the meeting, the petitioner stood removed and some temporary ad hoc arrangements are made, interest of justice 26 would be sub-served, if this order is stayed for a period of two weeks. Accordingly, stay of two weeks is granted. During this period, liberty is granted to convene a fresh meeting if otherwise permissible in law. All concerned to act on an authenticated copy of this order. (S.C.Dharmadhikari, J)