1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.4096 OF 2009 Appa s/o Munjaji Pawar age 33 yrs, Occ. Agri, r/o Salapuri, Tq. & Dist. Parbhani. PETITIONER. V E R S U S 1. The Divisional Commissioner, Aurangabad Division, Aurangabad. 2. The Additional Collector, Parbhani, Dist. Parbhani. 3. The Presiding Officer (Tahsildar), Tahsil Office, Parbhani. 4. Chaitanay s/p Shivajirao Ghatge, age major, Occ. Agri. 5. Deepak s/o Uttamrao Ghatge, age major, occ. Agri. 6. Madhukar s/o Vishvanath Ghatge, age major, Occ. Agri. 7. Madhavrao s/o Marotrao Ghatge, age major, Occ. Agri. 8. Bhaskar s/o Haribhau Hurgule, age major, Occ. Agri. 9. Smt. Shobha w/o Vaijinath Pawar, age major, Occ. Household. 10. Sow. Ratubai Ramrao Rathod, age major, Occ. Household. 11. Sow. Neelabai w/o Tukaram Dhanure, age major, Occ. Household. 2 Respondents No. 4 to 11 are r/o Salapuri, Tq. & Dist. Parbhani. RESPONDENTS. Shri B.N. Gadegaonkar, Advocate for the petitioner. Shri S.D. Kaldate, AGP for the respondent 1 to 3. Shri G.R. Sayyed & S.R.Ghatge, Advocate for resp. No. 4 to 10. CORAM : B.R. GAVAI, J : DATE : 2nd JULY, 2009 ORAL JUDGMENT :- 1. By way of present petition, the petitioner challenges the order passed by the learned Divisional Commissioner, Aurangabad dated 19.06.2009 thereby dismissing the appeal filed by the present petitioner challenging the order passed by the Additional Collector dated 19.05.2009, vide which dispute filed by the present petitioner challenging the ‘no confidence motion’ dated 21.03.2009 came to be rejected. 2. Shri Ghatge, the learned counsel appearing on behalf of the petitioner submits that, Rule 7 of the Bombay Village Panchayat Rules, 1959 requires that notice of the meeting has to be served personally on the members and in his absence upon, an adult member of the family residing with member. It is submitted that only in the event that such members are not available it can be served by affixing the notice on the conspicuous part of the house. 3. Shri Ghatge placed reliance on the judgment of Division 3 Bench of this Court in the case of Ashok Krishnakant Mehta v/s State of Maharashtra and others reported in 2000 (4) Mh. L. J. and the judgment of the single Judge of this Court in the case of Indubai Vedu Khairnar v/s State of Maharashtra and others reported in 2003 (2) Bom C.R 239 and Bhima Narayan Gangurde and others v/s State of Maharashtra and ors reported in 2002 (1) Bom C.R. 186. 4. Shri G.R. Sayyed the learned counsel appearing on behalf of the respondents on the contrary submits that the resolution has been passed by the requisite majority and merely because there are certain technical lacuna's, cannot be a ground for upsetting the motion of no confidence passed by the members. 5. The six members of the grampanchayat had tendered notice of no confidence motion to the Tahasildar. Accordingly Tahasildar conveyed a meeting for no confidence motion on 19.03.2009. In the said meeting 7 members out of 9 were present. All seven members supported the motion for no confidence and accordingly resolution came to be passed. The authorities have concurrently held that though notice was duly served on the present petitioner, he did not remain present. 6. The single judge of this Court in the case of Prabhawati Vijaykumar Khivsara and anr. Vs/ State of Maharashtra and ors. Reported in 2008 (3) Bom. C.R.755 relied on the judgment of the Apex 4 Court in the case of K. Narasimhiah Vs. H.C.Singri Gowda,AIR 1966 S.C. 330 has held that “unless prejudice could be said to have been caused on account of procedural requirement, the court should not interfere in the motion of no confidence.”. While deciding the said petitions this Court has also relied on the observations of the Division Bench of this Court in the case of Smt. Annapurnabai Ajabrao Vs. Annapurnabai Anandrao, 1967 Mh. L. J NOC 36. 7. It appears that the learned judges in the Division Bench and the two learned single judges who have decided aforesaid three matters relied upon by Shri Ghatge, have not noticed the judgment of Division Bench of this Court in the case of Smt. Annapurnabai Ajabrao cited supra. It further appears that the Division Bench and the learned Single Judges also have not noticed the judgment of the Apex Court in the case of K. Narasimhiah Vs. H.C.Singri Gowda,AIR 1966 S.C. 330 cited supra. 8. The Division Bench of this Court in the case of (Smt. Annapurnabai Ajabrao Vs. Annapurnabai Anandrao) reported in 1967 Mh.L.J. NOC 36, while considering the challenge to the regularity of the proceedings of the meeting held to consider the resolution of no-confidence motion against the Sarpanch, observed thus : 5 “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 registration 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.” It can thus be clearly seen that the Division Bench in the case cited supra has clearly held that when a person has lost confidence of majority, he has no right to continue in the post of Sarpanch by raising some hyper technical ground. In a democratic society will of the majority is paramount. If view taken by the Division Bench in the case of Annapurnabai is not accepted, it will create a chaotic condition, like in the present case though 7 members are against 6 the petitioner and if he is thurst against the wishes of majority as their leader and continue to permit to work as Sarpanch, entire functioning of the Grampanchayat would come to a standstill, thereby causing a grave difficulties in the functioning of the Grampanchayat. 9. As already discussed above, the said judgment has not been noticed by the Division Bench and Single Judges on the judgments of whom Shri Ghatge relies. The Division Bench in the case of Nimba Rajaram Koli vs. Collector, Jalgaon 1998 (3) Mh.L.J. , relying on the case of Annapurnabai Ajabrao has also held “that once 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.” It is difficult to appreciate that when all other members have received notice of no confidence motion, it is only the petitioner who has not received the notice of no confidence motion. The petitioner and all other members are residents of a same village. In any case, notice has been served by the Tahasildar. No allegations of malafide or bias have been made against the Tahasildar that the notice of meeting was not properly served on the petitioner by the 7 Tahasildar with an ulterior motive. 10. At the cost of repeatation, 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 majority that must prevail. Once a person looses the confidence of a majority, as required under the statute, he has no right to continue in the office and thurst himself against the wishes of the majority of the members. 11. In that view of the matter, no case is made out for interference with no confidence motion which has been passed by the requisite majority of more than 2/3 members. Hence no interference is warranted in exercise of extra ordinary jurisdiction of this Court under Article 227 of the Constitution of India. The petitioner is therefore, rejected. ( B. R. GAVAI ) JUDGE ..... aaa/wp4096.09