bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 6873 OF 2008 PETITION NO. 6873 OF 2008 PETITION NO. 6873 OF 2008 Mr.Nivrutti Kashinath Bansode & anr. ... Petitioners v/s Gramsevak, Grampanchayat, Nazara & ors. ... Respondents Mr.S.S.Patwardhan for the petitioners. Mr.S.P.Thorat for respondent Nos.2, 5 to 8. Mr.Sameer Patil, A.G.P. for respondent Nos.13 to 15. CORAM: CORAM: CORAM: SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. DATED: DATED: DATED: 24TH OCTOBER, 2008 24TH OCTOBER, 2008 24TH OCTOBER, 2008 P.C. P.C. P.C.: 1. This petition has been filed against the order passed by the Divisional Commissioner, Pune, in Appeal No.VPT/A/22/2008, which confirms the order passed by the Additional Collector on 30.6.2008 in V.P./Remand Case No.1 of 2008. 2. By consent, the petition is being heard and disposed of finally at the stage of admission itself. 3. Petitioner Nos.1 and 2 are the Sarpanch and Up-Sarpanch of Nazara, Taluka Sangola, Dist. Solapur. 2 A no-confidence motion was moved against the petitioners by some members of the Gram Panchayat on 26.12.2007. The Tahsildar, Sangola, therefore, summoned a special meeting in the office of the Gram Panchayat on 2.1.2008 for discussing the no-confidence motion. At the meeting, the no-confidence motion was passed by 10 votes to 3 votes and the petitioners were voted out of office. The petitioners contend that they were not given any opportunity by the Tahsildar to address the meeting and to speak against the motion. The appeal was filed by the petitioners before the Additional Collector challenging the resolution passed at the special meeting. The Collector dismissed the appeal on 30.6.2008. A second appeal was filed by the petitioners impugning the order passed by the Additional Collector. An affidavit was filed by the 1st petitioner before the Additional Collector, who dismissed the appeal by relying on the judgment of this Court (Aurangabad Bench) dated 16th December, 2002 in Writ Petition No.4346 of 2001. 4. Mr.Patwardhan appearing for the petitioners contend that the basic requirement for passing a No Confidence Motion is that there must be a debate or discussion at the meeting and the person against whom such a motion is to be passed must have an opportunity to address the 3 meeting. He submits that in a democratic process this vital right which a person has to defend himself at a meeting for passing the No Confidence Motion cannot be by-passed. According to him, the Tahsildar has not performed his duties which are prescribed in the Bombay Village Panchayats Act, 1958 and the Rules framed thereunder, by calling upon the petitioners to explain their stand in respect of the motion. The learned counsel points out that though there are myriad reasons for challenging the No Confidence Motion passed, the main contention of the petitioners is that they were not given any opportunity to speak at the meeting. He, therefore, submits that the orders passed by the Collector and the Commissioner should be set aside and the No Confidence Motion passed on 2.1.2008 must be declared illegal, ineffective and void ab initio. 5. Mr.Thorat, learned counsel appears for the respondents 1 to 12 who are members of the Gram Panchayat, Nazara. He submits that the petitioners were present at the meeting held in respect of the No Confidence motion on 2.1.2008. He submits that the petitioners have not objected at any point of time to the record and proceedings of the meeting held on 2.1.2008 as maintained by the Tahsildar. He submits that the appeal filed before the Additional Collector 4 does not disclose that the petitioners were in any manner aggrieved because they were not permitted to speak at the meeting or that they have been prejudiced in any manner. He points out that the Tahsildar would have noted the objections raised by the petitioners if indeed they had objected to the manner of conducting the meeting on 2.1.2008. However, since no objections have been noted by the Tahsildar and the fact that he has recorded that the petitioners had not disapproved of the minutes, they cannot now challenge the record of the proceedings, according to the learned advocate. He further submits that the written statement has been filed by the Tahsildar before the Divisional Commissioner in which he has stated that the petitioners had refused to avail of the opportunity given to them at the meeting to express their view on the No Confidence Motion. 6. A perusal of the record and proceedings of the meeting held on 2.1.2008 to discuss the No Confidence Motion indicates that the petitioners were present at the meeting and that the No Confidence Motion was passed by a majority to 10 votes to 3 votes. The Tahsildar has further noted that he had read out the minutes of the meeting and nobody had raised any objection to the same. 5 7. Thus, on the factual aspect, it must be accepted that whatever has been recorded by the Tahsildar in the minutes is a true and correct picture of what has transpired on 2.1.2008 at the meeting. Any additions, by way of further statements, affidavits, etc. to what has been recorded in the minutes cannot alter the position as what has actually transpired at the meeting. Therefore, one has to proceed on the footing that the minutes were correctly recorded of the events that occurred at the meeting on 2.1.2008. 8. The question would, therefore be, whether it was incumbent on the Tahsildar to call upon the petitioners to express their views at the meeting or whether the Tahsildar was required to afford an opportunity to the petitioners to speak at the meeting only if they sought such an opportunity. 9. Section 35 of the Bombay Village Panchayats Act reads as follows:- "Section Section Section 35. Motion of no confidence.- 35. Motion of no confidence.- 35. Motion of no confidence.- (1) A motion of no confidence may be moved by not less than one fifth 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. 6 (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 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 At such special At such special meeting, meeting, meeting, the Sarpanch or the Upa-Sarpanch the Sarpanch or the Upa-Sarpanch the Sarpanch or the Upa-Sarpanch against against against whom the motion of no confidence is whom the motion of no confidence is whom the motion of no confidence is moved moved moved shall have a right to speak or otherwise shall have a right to speak or otherwise shall have a right to speak or otherwise to to to take part in the proceedings at the meeting take part in the proceedings at the meeting take part in the proceedings at the meeting including including including the right to vote. the right to vote. the right to vote. (3) If the motion is carried by a majority 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 (3B); and thereupon the office held by such Sarpanch or Upa-Sarpanch shall be deemed to be vacant." (Emphasis added). Thus, Section 35 expressly recognises that the Sarpanch against whom a resolution of no confidence is to be passed would be entitled to address the house. This requirement has been incorporated only with a view to afford the Sarpanch and Upa-Sarpanch an opportunity of being heard before being condemned by no confidence motion. Apart from the persons against whom the no confidence motion is to be passed, all others present at the meeting are entitled to vote can address the meeting. 10. For removal of a Sarpanch or Up-Sarpanch by a vote 7 of No Confidence, rules have been framed, namely, the Bombay Village Panchayats Sarpanch and Upa-Sarpanch (No Confidence Motion) Rules, 1975. These rules stipulate the manner in which members of a Panchayat who desire to move a motion of no-confidence against a Sarpanch or Upa-Sarpanch have to give notice of the motion. The rules also provide that the Tahsildar, on being satisfied, that the notice for the No-Confidence Motion has been given by not less than 1/3 of the total number of members who are entitled to sit and vote at the Panchayat meeting, must convene a special meeting within seven days from the date of receipt of such notice. The meeting once convened must be conducted according to the rules provided in the Bombay Village Panchayats (Meeting) Rules, 1959. 11. The Bombay Village Panchayats (Meeting) Rules, 1959 have been framed under the Bombay Village Panchayats Act, 1958. These rules provide the manner in which the business of the village panchayat is to be conducted. It would be appropriate to set out a few rules which are relevant for deciding the present controversy. Rule Rule Rule 17:- 17:- 17:- (1) A member who has given notice of a motion shall, when called on, either,- (a) .................... 8 (b) move the motion in which case he shall commence his speech by a formal motion in the terms appearing on the list of business, after the motion is duly seconded. (2) ................... Rule Rule Rule 18:- 18:- 18:- After a motion has been moved and seconded the person presiding shall propose the question by reading the motion for the consideration of the panchayat. Rule Rule Rule 21:- 21:- 21:- (1) A member desiring to propose and discuss any motion shall rise in his seat when speaking and address his speech to the person presiding: Provided that the person presiding may, at the commencement of the meeting, declare that the business of the meeting shall be transacted sitting or may be permit any member to address the meeting sitting. (2) A member shall confine his speech strictly to the question before the meeting and shall cease to make remarks which are held by the person presiding to the irrelevant or offensive. (3) Members shall not talk among themselves in the meeting so as to disturb the proceedings or a member who is speaking. "Rule "Rule "Rule 22. 22. 22. (1) The person presiding may address the meeting at any stage of a debate. (2) The person presiding shall rise in his seat while addressing the meeting. Rule Rule Rule 23. 23. 23. After a motion has been placed before the meeting for consideration under Rule 18, the mover may speak in support of the motion and the seconder may either follow or reserve his speech for a later stage of the debate thereon. Rule Rule Rule 24. 24. 24. The mover, or if the mover waives his 9 right, the seconder, of a substantive motion may reply at the conclusion of the debate thereon but no other member shall, without the express permission of the person presiding, speak more than once on the same motion, except, for the purpose of making a personal explanation but in such cases, no debatable matter shall be brought forward. Rule Rule Rule 26. 26. 26. (1) On the conclusion of a debate on a motion or where the person presiding is satisfied that the motion has been sufficiently discussed, he may put the motion to the vote of the meeting without further discussion. The provisions of Section 35 of the Bombay Village Panchayats Act read with the aforesaid rules do indicate that there must be a debate before a motion is passed and especially so in case of a No-Confidence Motion. It is obvious that the debate or discussion envisaged by the legislature includes the permission for the persons against whom the motion is being moved to speak at the meeting. 12. The aforesaid rules very clearly provide that motion can be put to vote only if it is proposed and seconded by somebody. The record maintained by the Tahsildar does not indicate who was the proposor of the motion for no-confidence against the petitioners nor does the name of the seconder of the motion figure anywhere in the record. 10 13. A debate or discussion which is contemplated under the aforesaid provisions of law can never be one sided. The true spirit of such debate or discussion is that all persons attending the meeting should be given the opportunity of speaking at the meeting. Such a debate cannot be one where everybody speaks in favour of the motion and the person against whom the motion is to be passed does not get an opportunity to address the body. In the present case, there does not appear to be any opportunity afforded to the petitioners to all their views on the motion despite an express provision contained in Section 35 of the Bombay Village Panchayats Act. A specific averment is contained in the petition that one of the members of the Gram Panchayat had demanded that he should be permitted to speak, however, the Tahsildar did not permit anybody to address the house on 2.1.2008. An affidavit has been filed by one Shilpa Ramesh Thokade, In-charge Tahsildar, Sangola, Dist. Solapur, who admittedly was not present when the meeting was convened on 2.1.2008. Although she has not specifically denied this averment in the petition, she has stated that the Tahsildar had afforded an opportunity to both the petitioners and all other members of the Gram Panchayat to putforth their say as regard the No Confidence Motion at the meeting. She has further stated that, "inadvertently" and through 11 "oversight" this has not been recorded in the minutes of the said meeting. In my opinion, this affidavit is of no use as the affiant has sought to explain away the shortcomings in the minutes which were recorded on 2.1.2008 when she was not present at the meeting. A statutory duty is cast on the Tahsildar to convene a meeting and conduct the same in accordance with the aforesaid provisions of law. It is trite that a subsequent explanation of the recording of the minutes, that too by a person who was not present at the meeting, will not set right the deficiencies which occurred in the conduct of the meeting. 14. In the case of Ashok Krishnakant Mehta v/s State of Ashok Krishnakant Mehta v/s State of Ashok Krishnakant Mehta v/s State of Maharashtra Maharashtra Maharashtra & ors., reported in 2000(4) Mh.L.J. 197, & ors., reported in 2000(4) Mh.L.J. 197, & ors., reported in 2000(4) Mh.L.J. 197, the Division Bench of this Court was considering a similar issue which I am required to decide in this petition. The Division Bench referred to Section 35 sub-sections (1), (2) and (3) of the Bombay Village Panchayats Act and held thus - "Section 35 expressly recognises that the Sarpanch against whom a resolution of no confidence is to be passed would be entitled to address the meeting. This requirement is embodied in the law as compliance with a basic principle of natural justice. A resolution of no confidence operates to remove a person from his position as Sarpanch or Upa-Sarpanch by expressing a lack of confidence in his ability to govern the affairs of the Village Panchayat. 12 Bearing in mind the consequences of as well as the underlying basis for a resolution of no confidence, the law has incorporated a requirement of giving the Sarpanch or Upa-Sarpanch, as the case may be, an opportunity of being heard before the members vote upon the resolution of no confidence. The Tahsildar and the Authorities below erred in reaching into the requirement of giving an opportunity to the Sarpanch or Upa-Sarpanch as the case may be a rule of exclusion that would debar any other person apart from those against whom the motion of no-confidence is being moved, from speaking at the meeting. A rule of exclusion is neither expressly contained in the Statute nor does it follow by necessary implication. The object of permitting the members of the Village Panchayat to address the meeting of the Panchayat has a genesis which is distinct from the opportunity of being heard which is given to the Sarpanch or Upa-Sarpanch against whom the resolution of no-confidence is being proposed. Every member of the Village Panchayat is entitled to participate in the affairs of the Panchayat. An expression of view point at the meeting of the Village Panchayat is a valuable right available to the members of the Village Panchayat. The elected bodies at the local level fulfil basic principles of democratic functioning which are to be found as wel in larger bodies at other levels of the polity. The right of each member of the House to address the House is a valuable safe-guard of democratic functioning. Unquestionably, that right can be reguated by the Presiding Officer so as to ensure the due and orderly course of debate on the foor of the representative body so as to ensure that the functioning of the body is not disputed. But, to regulate the course of debate in the interests of ensuring due order in the course of the proceeding is quite a different thing from prohibiting members from speaking on the ground that the resolution does not pertain to member who wishes to speak. Every member of representative popularly elected bodies has a vital interest in the business which is transacted before that body. The right of a particular member who is sought to be proceeded against on account of a specific misconduct or for having incurred a particular 13 disqualification cannot be equated or confused with the general right of all the members to discuss and debate. A members have a vital interest in expressing their view point subject to due regulation in the interest of preserving order in the course of proceedings. The authorities below have summarily rejected the submission made on behalf of the petitioner on the ground that by an overwhelming majority of 9 in a house of 17 the resolution came to be passed. The issue, in our view, is something far more fundamental and that goes to the root or the essence of democratic functioning. The weight of numbers is not an answer to a fundamental defect such as this and the Court ought not to countenance a suppression of the right to speak by a supposed justification on the basis of the number who cast their lot in supprt of a resolution. The exclusion of members from addressing the Village Panchayat was a fundamental flaw in the proceedings which would invalidate the resolution of no confidence." The Division Bench further observed after referring to the provisions of the Bombay Village Panchayats (Meeting) Rules, 1959: "These provisions highlight the safeguards of a free and orderly debate in the Village Panchayat. The importance of a free debate in the Panchayat, cannot be under emphasised. It lies at the heart of democracy. The Village Panchayat is an institution for democratic self governance at the level of the Village. Any effort to stifle debate must be looked upon by the law with disfavour." 14 15. In the case of Dnyandev Mohiniraj Nipunage v/s The Dnyandev Mohiniraj Nipunage v/s The Dnyandev Mohiniraj Nipunage v/s The State State State of Maharashtra & ors., reported in 2000 (2) of Maharashtra & ors., reported in 2000 (2) of Maharashtra & ors., reported in 2000 (2) All.M.R. All.M.R. All.M.R. 371, 371, 371, the Division Bench of this Court (Aurangabad Bench) has held on facts that it was not correct that the Sarpanch and Upa-Sarpanch were not allowed to speak and that, in fact, they had not availed of the opportunity to speak at the meeting. Thus, the Division Bench recognised the fact that the Sarpanch and Upa-Sarpanch are entitled to speak at the meeting to discuss the no confidence motion. It was held that because the Sarpanch and Upa-Sarpanch did not attend the meeting they could not challenge the meeting on the ground that sufficient time for discussion was not given before putting the motion to vote. This judgment cited by Mr.Thorat does not aid the respondents as the facts in the present case are completely different. Mr.Thorat has then relied on the judgment of Nimba Rajaram Mai v/s Nimba Rajaram Mai v/s Nimba Rajaram Mai v/s Collector, Collector, Collector, Jalgon & ors., reported in 1998 (3) Mh.L.J. Jalgon & ors., reported in 1998 (3) Mh.L.J. Jalgon & ors., reported in 1998 (3) Mh.L.J. 204, 204, 204, where the Division Bench has held that if a No Confidence Motion is passed by a clear majority, in keeping with the requirement of the concerned statutory provisions, the person against whom such a resolution is passed, must honour the will of the majority. There can be no quarrel with this proposition. However, there is no gainsaying that the motion must be passed in 15 consonance with the requirements of the concerned statutory provisions. Reliance is placed by the learned advocate for the respondents on the observations of the Division Bench that the record and proceedings in the dispute did not show that the grounds on which the meeting was challenged were raised before the Additional Collector. The learned advocate submits that, in the present case as well, the challenge to the meeting on the ground that the members including the petitioners of the Gram Panchayat were not permitted to speak at the meeting, was not raised before the 1st authority i.e. the Tahsildar who had convened the meeting or the Additional Collector. However, this submission of the learned advocate cannot be accepted as the record indicates that the issue was raised before the Additiona Collector in Appeal Case No.1 of 2008. 16. Mr.Thorat has then relied on the judgments in the case of Sanjay Pandurang Chavan & ors. v/s State of Sanjay Pandurang Chavan & ors. v/s State of Sanjay Pandurang Chavan & ors. v/s State of Maharashtra Maharashtra Maharashtra & ors., reported in 2003 (3) Mh.L.J. 596; & ors., reported in 2003 (3) Mh.L.J. 596; & ors., reported in 2003 (3) Mh.L.J. 596; Prabhavati Prabhavati Prabhavati Vijaykumar Khivsara v/s State of Maharashtra Vijaykumar Khivsara v/s State of Maharashtra Vijaykumar Khivsara v/s State of Maharashtra & ors., reported in 2008 (2) Mh.L.J. 274; Mandalbai ors., reported in 2008 (2) Mh.L.J. 274; Mandalbai ors., reported in 2008 (2) Mh.L.J. 274; Mandalbai Balnath Balnath Balnath Rohom v/s Ashok Fakira Chandar, reported in 2002 Rohom v/s Ashok Fakira Chandar, reported in 2002 Rohom v/s Ashok Fakira Chandar, reported in 2002 (2) (2) (2) All.M.R. 316. All.M.R. 316. All.M.R. 316. The Division Bench in the case of Nimba Nimba Nimba Rajaram Mali v/s Collector, Jalgaon & ors. Rajaram Mali v/s Collector, Jalgaon & ors. Rajaram Mali v/s Collector, Jalgaon & ors. (supra), has held that the will of the majority must 16 prevail. These observations have been reiterated by a learned Single Judge in the case of Sanjay Pandurang Sanjay Pandurang Sanjay Pandurang Chavan Chavan Chavan v/s State of Maharashtra & ors. (supra). v/s State of Maharashtra & ors. (supra). v/s State of Maharashtra & ors. (supra). The other judgments do not advance the case of the respondents. 17. In my view, the judgment in the case of Ashok Krishnakant Mehta v/s State of Maharashtra & ors. (supra) is applicable to the present case on all fours. The petitioners were present at the