- 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION No. 10457 OF 2009 Vijay Ramchandra Katkar, Age 45 years, ) residing at Pali, Post Pali, Tal. Sudhagad, ) District Raigad .. Petitioner Vs. 1. Group Gram Panchayat Pali, ) Gramvikas Adhikari, Pali, Post Pali, ) Taluka Sudhagad, District Raigad. ) 2. Mr. Yusuf Ismail Pathan, Age 49 years, ) Residing at & Post Pali, ) Taluka Sudhagad District Raigad. ) 3. Mr. Ramesh Ramchandra Misal, Age 46) years, residing At & Pos Pali ) Taluka Sudhagad, District Raigad ) 4. Mr. Rajesh Sharat Mapara, Ag 34 years ) Residing at & Post Pali, ) Taluka Sudhagad District Raigad. ) 5. Mr. Vikram Bikamchand Parmar, Age 38 years Residing at & Post Pali, ) Taluka Sudhagad District Raigad. ) 6. Mr. Anupam Sharad Kulkarni, Age 38 ) years, Residing at & Post Pali, ) Taluka Sudhagad District Raigad. ) 7. Mrs. Gita Suresh Thombre, Age 50 yrs ) Residing at & Post Pali, ) - 2 - Taluka Sudhagad District Raigad. ) 8. Mr. Milind Suresh Thombre, Age 32 yrs) Residing at & Post Pali, ) Taluka Sudhagad District Raigad. ) 9. Mrs. Aki Mahadu More, Age 50 yrs. ) Residing at & Post Pali, ) Taluka Sudhagad District Raigad. ) 10. Mr. Jitendra Waman Kelkar, Age 42 yrs) Residing at & Post Pali, ) Taluka Sudhagad District Raigad. ) 11. Mr. Nathuram Pandurang Joshi, Age 50) years, Residing at & Post Pali, ) Taluka Sudhagad District Raigad. ) 12. Mr. Sandip Shankar Parab, Age 36 yrs. ) Residing at & Post Pali, ) Taluka Sudhagad District Raigad. ) 13. Mrs. Lina Deepak Sheth, Age 50 years ) Residing at & Post Pali, ) Taluka Sudhagad District Raigad. ) 14. Mrs. Anita Atmaram Sagale, Age 50 yrs) Residing at & Post Pali, ) Taluka Sudhagad District Raigad. ) 15. Mrs. Aparna Arun Sakharle, Age 32 yrs) Residing at & Post Pali, ) Taluka Sudhagad District Raigad. ) 16. Mrs. Chandrakala Chandragupt Bhalerao Age 48 years, Residing at & Post Pali, ) Taluka Sudhagad District Raigad. ) 17. Tahsildar, - 3 - At & Post Pali, ) Taluka Sudhagad District Raigad ) 18, The District Collector, ) Raigad, Alibag. ) 19. The Commissioner, ) Konkan Division, Mumbai ) 20. State of Maharashtra ..Respondents *** Mr. C. G. Gavnekar, for the Petitioner. Mr. M. M. Sathye, for Respondent Nos. 2, 3, 5 to 10, 12, 14, 15. Mr. Suhas Deokar, for Respondent Nos. 4, 11, 13 & 16. Mr. R. M. Patne, AGP for Respondent Nos. 17 to 20. *** CORAM : R. C. CHAVAN, J. JUDGMENT RESERVED ON : MAY 3, 2010. JUDGMENT PRONOUNCED ON : MAY 6, 2010. JUDGMENT : . Rule. By consent rule made returnable forthwith. 1. This petition is directed against the order passed by the Collector Raigad on 4th November 2009 and maintained upon appeal by the Additional Commissioner, Konkan Division, by judgment dated 1st December, 2009. - 4 - 2. Facts which are material for deciding this petition and about which there can be no dispute are as under- . On 16th March, 2008 elections were held at village Pali, taluka Sudhagad for electing members of the Gram Panchayat. The petitioner was one of the members elected at those elections. On 30th June, 2008 the petitioner was elected as Sarpanch at the first meeting of the Gram Panchayat. On 28th August 2009 respondent Nos. 2 to 13, 15 and 16 served notice under section 35 of the Bombay Village Panchayat Act (hereinafter referred to as the “Act”) and the Sarpanch and Upasarpanch No Confidence Rules, 1975 (hereinafter referred to as the “Rules”). Pursuant to the said notice, on 28th August 2009 the Tahsildar, Pali Sudhagad convened a meeting of the Gram Panchayat on 2nd September 2009. This meeting was accordingly held on 2nd September 2009 and was presided over by the Tahsildar Pali. At that meeting, a ‘no confidence motion’ was passed against the petitioner by two-third majority. At that meeting 4 members of the Gram Panchayat were absent. Out of the remaining 12 members, 11 voted in favour of the resolution. The petitioner was the lone voter against motion of no confidence. The Tahsildar found that the motion was carried by a majority of 2/3rds of the members entitled to sit and vote at the meeting, - 5 - and therefore, declared that the resolution was passed. 3. Aggrieved thereby, the petitioner raised a dispute under sub-section [3(b)] of section 35 of the Act. Among other things, he submitted that none of the members present at the meeting had moved the motion of no confidence nor was it seconded by any member present. He pointed out that though no such resolution was moved, the Tahsildar put it to vote even before any discussion could take place on the resolution. Therefore, according to the petitioner, the resolution allegedly passed in the meeting held on 2nd September 2009 was not legal. 4. Respondent No. 17 the Tahsildar, who had presided over the meeting submitted a reply before the Collector, and so did the members of the Gram Panchayat, who had voted in favour of the resolution. They stated that the resolution was properly passed and therefore the Tahsildar had rightly so declared. After considering the rival contentions, the Collector held that the dispute raised by the petitioner did not disclose any deficiency in the proceedings at the meeting held on 2nd September 2009. He held that the resolution was properly moved and passed at the meeting. 5. The petitioner’s appeal before the Additional - 6 - Commissioner, Konkan Division came to be likewise dismissed by judgment dated 1st December, 2009, which has been impugned in this petition. 6. In pursuance of notice issued on 14th December, 2009 respondent No.17 Tahsildar Pali has filed an affidavit-in-reply reporting that the proceedings at meeting held on 2nd September, 2009 were proper and no confidence motion was properly passed. 7. Members of the Gram Panchayat who had voted against the resolution, respondent Nos. 2, 3, 5 to 10 & 12, 14 & 15 (hereinafter referred to as the contesting respondents) also filed their affidavits stating that the resolution of ‘no-confidence’ was rightly passed and that the petitioner had no right to continue to act as Sarpanch. 8. I have heard the learned counsel for the petitioner, contesting respondents as well as the learned AGP. The learned counsel for the parties painstakingly took me through relevant provisions of the law, and also the judicial pronouncements which have a bearing on the question. 9. The learned counsel for the petitioner submitted that the proceedings of meeting held on 2nd September 2009, annexed to the petition at Exhibit “B” show that the proceedings commenced at 11 a. m. - 7 - Four members were absent and therefore, it was decided to wait for about 15 minutes. But since they did not report, the proceedings began on 11.15 a. m. The members present were informed of the draft of ‘no confidence motion’. There was only one allegation against the petitioner namely, high handed or arbitrary conduct of business. The proceedings then recount that after acquainting the members about the draft of motion of no confidence, the motion was put to vote. Eleven members are recorded to have voted in favour of the resolution. The petitioner voted against the resolution. Copy of the proceedings book shows that signatures of the members who voted in favour and against had been taken in the proceeding book. It is further recorded in the proceeding book that the Presiding Officer gave an opportunity to the petitioner to put forth his contentions. The proceedings then records what the petitioner submitted. It then again recounts that 11 members voted in favour of the resolution and one member voted against it and thus, the resolution was passed by 2/3rds of majority. The proceeding was then read over to all the members and their signatures were obtained on the proceeding book. Then proceedings are signed by the Tahsildar as well as Village Development Officer. 10. The learned counsel for the petitioner relied upon a - 8 - judgment of this Court in the case of – Kishore Phalat Vs. Vilas Mahajan [ 1997 (3) Mh.L.J.27] where the Court was considering the question as to how votes on a no confidence motion should be recorded. Since there is no dispute about votes recorded this judgment will be unhelpful in resolving the issue. 11. The learned counsel for the petitioner submitted that if the proceedings are correctly recorded, which has to be presumed, the motion of no-confidence was neither moved nor was it seconded by any member. He further pointed out that voting was taken and then the petitioner was given a chance to defend himself. Therefore, according to him, the meeting was conducted in flagrant violation of the procedure, prescribed under the Act and the Rules. Therefore, the Collector and also the Commissioner should have held that ‘no confidence motion’ was not passed. 12. The learned counsel for the contesting respondents submitted that the proceedings of meeting dated 2nd September 2009 ought to be read in a manner consistent with the presumption that official acts would be performed properly. He pointed out that the proceedings also recount that after the petitioner was heard, out of the members present, eleven had voted in favour of the resolution. - 9 - Therefore, according to him, it is possible to interpret the proceedings in a manner which would ensure that the wishes of majority are respected. 13. As rightly pointed out by the learned counsel for the petitioner, such a course is not at all open. First, it is nobody’s case that no confidence motion was put to vote again for a second time after the petitioner was heard. Secondly, the penultimate paragraph in the proceedings to which learned counsel for contesting respondents makes a reference does not show that voting was taken again, but only recounts what had already happened. It will not be open to read what is not there in the proceedings. The presumption about official acts may rather imply that the Tahsildar recorded the proceedings truthfully as they took place. . It is thus, clear from the proceedings recorded that - (i) the motion had not been moved or seconded as required by Rule 17 of the Bombay Village Panchayat Meeting Rules (hereinafter referred to as the “Meeting Rules”); (ii) there was no discussion or debate on the motion as required under Rules 21 to 27 of the Meeting Rules, before it was put to vote under Rule 28. 14. The erudite arguments of the learned counsel as to the consequences flowing from these facts may now be dealt with. - 10 - 15. The Rules provide that the members of the Gram Panchayat who desires to move a motion of no confidence shall give a notice in prescribed form to the Tahsildar. Such notice is required to be accompanied by 7 additional copies. The Tahsildar is required to send a copy each to Sarpanch and Upasarpanch as well as to the Zilla Parishad, Panchayat Samiti, the Collector and the Commissioner. If such a notice is given by not less than 1/3rd of the total members entitled to sit and vote, the Tahsildar is required to convene a special meeting with 7 days. Contesting respondents, who desired to move a motion of no confidence gave requisite notice in prescribed form, and the Tahsildar did convene a meeting within the period of 7 days of receipt of notice as required by rules. Rule 3 of the Rules, require the Tahsildar to communicate to the Zilla Parishad, Panchayat Samiti and the Collector and the Commissioner the name of members who were present at the meeting, the decision taken on the motion, number of votes in favour of and against the motion. These Rules are silent on the manner in which this meeting is to be conducted. The learned counsel for the parties therefore, rightly submitted that the Meeting Rules, 1959, would apply to such meetings. 16. The only distinction in general and special meeting in the - 11 - Meeting Rules is that while 3 clear days’ notice is required for an ordinary meeting, a special meeting can be convened after giving at least 1 clear day’s notice. As far as procedure to be followed at these meetings, there is no distinction. 17. Rules 17 to 26 provide the procedure for considering motions at meetings. A member who has given notice of a motion can either state that he does not wish to move the motion, or may move the motion. Once a motion is moved and seconded, it is not allowed to be withdrawn. The members are then permitted to speak on the motion. The mover of the motion or the secondor can reply at the conclusion of the debate, and on conclusion of the debate on the motion, when the presiding officer is satisfied that the motion has been sufficiently discussed, he may put the motion to vote. Thus, these Rules require that the motion is to be first moved and seconded, followed by discussion thereon, at the conclusion whereof, the motion is required to be put to vote. 18. The learned counsel for the petitioner submitted that the proceedings recorded by the Tahsildar show that the motion had been put to vote without there being any discussion thereon. Relying on the judgment of a learned Single Judge of this Court in Govind Nivrutti - 12 - Hipparkar Vs. Tahasildar, Taluka Sangola & Ors. in Writ Petition No. 9819 of 2009, decided on 18th January, 2010, the learned counsel for the petitioner submitted that there has to be a debate on the motion. The Court had held that it was incumbent on the Tahsildar to provoke a debate by affording an opportunity to the person against whom ‘no confidence motion’ is sought to be moved to make his point by permitting him to speak. The Court concluded that a meeting where the motion and provisions of law are only read out cannot be called a meeting at which the motion was debated. This Court therefore, held that such a motion could not be upheld, upon a challenge being raised. This Court had concluded while allowing the writ petition that the parties may convene another meeting for passing the resolution of no confidence, in accordance with law. 19. In Mr. Nivrutti Kashinath Bansode & Anr. Vs. Gram Sevak, Grampanchayat, Nazara & Ors. in Writ Petition No. 6873 of 2008, decided on 24th October 2008 another learned Single Judge of this Court held that section 35 of the Act mandates that the Sarpanch against whom a resolution of no confidence is to be passed, would be entitled to address the House. The Court also referred to Meeting Rules and observed that these rules clearly provide that a motion can be put to vote - 13 - only when it proposed and seconded by someone. The Court observed that record of the proceedings did not show that motion was proposed or seconded by someone. Highlighting the need for a free and full debate, the Court concluded that since no opportunity was given to the members to speak at the meeting, the resolution could not be upheld. The Court concluded by observing that it would be open to the Tahsildar to reconvene a fresh meeting with respect to the requisition which was issued to him, if it satisfied the stipulations provided in law. The Court observed that if such a meeting is reconvened, the Tahsildar would ensure that the meeting is conducted by following provisions of law by permitting a debate or discussion at the meeting. 20. The learned Judge referred a judgment in the case of– Ashok Krishnakant Mehta Vs. State of Maharashtra & Ors. [2004(4) Mh.L.J. 197]. In that case a Division Bench of this Court was considering a motion of no confidence passed possibly in the same Pali village. A meeting was convened by the Tahsildar on 17th December 1999 at which 16 out of 17 members of the Gram Panchayat were present. While the person against whom no confidence motion was moved was permitted to speak, other members, who sought to speak at the meeting, were denied permission by the Tahsildar. Six members left - 14 - the meeting in protest against the decision of the Tahsildar not to allow them to speak at the meeting. The Division Bench considered the main issue as to whether a resolution of no confidence passed at a meeting in course of which, members constituting to Village Panchayat were not permitted to speak, would be invalid. After considering the relevant provisions of the Act and Rules, the Court observed that every member of a representative body has a vital interest in the business which is transacted before that Body and that the right of a particular member, who is sought to be proceeded against on account of specific misconduct, cannot be equated or confused with the general right of all the members to discuss and debate. The Court found that the weight of numbers is not an answer to the fundamental defect such as the one where debate was stifled and the court could not countenance a suppression of right to speak by a supposed justification on the basis of the numbers who cast their lot in support of a resolution. 21. Though in today’s political scenario neither content of a speech, nor the forcefulness with which it is delivered, may have any bearing, on voting in a political body & such speeches may have been reduced to ritualistic empty formation, legally, it has to be presumed that elected representatives too make decisions after hearing all sides. - 15 - Therefore, unless all concerned are heard at such a meeting, the local self governing body cannot jump to the voting stage. The petitioner may not be a Mark Antony who by his legendary speech turned the tide after Julius Caesar was killed, but he could not have been denied the opportunity of being one, making an attempt to refute the charges and appeal to the conscience of those who were to vote him out. This right is recognized not only by the judgments which the learned counsel for the petitioner referred to but also in the Meeting Rules. Failure to follow this requirement would vitiate the resolution. 22. Therefore, principally because the petitioner was not heard before the resolution was put to vote and also because the salutary procedure prescribed in Rules 17 to 26 of Meeting Rules was not followed, the Resolution could not have been saved. The Collector and the Commissioner should have so held. The impugned orders upholding the resolution would therefore have to be quashed, as also the resolution itself. 23. The learned counsel for the contesting respondents submitted that even if it is held that the resolution was not validly passed because of failure of the Presiding Officer to follow prescribed procedure, and not for any fault on the part of majority of members of - 16 - Gram Panchayat, the petitioner could not be permitted to occupy the office after losing the support of majority. 24. Relying on the judgment of a learned Single Judge of this Court, in a case of – Durgadas Ukhaji More & Ors. Vs. Additional Commissioner, Nashik Division, Nashik & ors. [2003(1) Mh.L.J. 420], the learned counsel for the contesting respondents submitted that a motion of no confidence could not be set at naught on account of technical lapses and that the requirement of sub-rule (2) of Rule 2 of the No Confidence Motion Rules, was to be considered as a directory and not mandatory. The learned counsel further submitted that lapses on the part of Tahsildar cannot result in finding fault with the members who moved the motion of no confidence. 25. Relying on the judgment in Smt. Yamunabai Laxman Chavan & Ors. Vs. Smt. Sarubai Tukaram Jadhav & Ors. [2004(3) ALL MR 93] , the learned counsel for the respondents submitted that this Court may not exercise of its powers under Art. 226 or 227 of the Constitution in order to oppress the will of the majority on the ground of technical lapses on the part of the Tahsildar in following the procedure, which may deviate from the chronology in which events were supposed to have taken place, but conforms to the substance of requirements of - 17 - law. Therefore, according to him, even if the Courts were to come to a conclusion that the Tahsildar had put the resolution to vote first and then allowed the petitioner to speak, that was only a formal defect which would not result in nullifying the will of majority and foist upon them as its Sarpanch a person who had lost majority. 26. The learned counsel for the contesting respondents submitted that even in the judgments on which the learned counsel for the petitioner relied in the case of – (1) Govind Vs. Tahsildar in Writ Petition No. 9819 of 2009 decided on 18th January, 2010; and (2) Nivrutti Vs. Gram Sevak in Writ Petition No.6873 of 2008 decided on 24-10-2008, referred in the preceding paragraphs, this Court had specifically permitted the Tahsildar to convene or reconvene the meeting. Therefore, the learned counsel submitted that the proceedings should re-commence at the stage at which deviation or the mischief occurred. The members who had assembled on 2nd September 2009 to vote on the resolution should again assemble at a meeting to be chaired by the Tahsildar and should reconsider the resolution after following procedure, prescribed in Rules 17 to 26 of the Meeting Rules. The learned counsel reiterated that the villagers should not be made to suffer a Sarpanch who had lost majority, only on account of lapse of the - 18 - Tahsildar. 27. The learned counsel for the petitioner submitted that such a course was not open for four reasons. First, the judgments on which the learned counsel placed reliance do not lay down a ratio that meeting should or must be convened or reconvened, since permissibility of such a course was not discussed in those judgments. Secondly, the requisition by contesting respondents, as also the notice convening the meeting issued by Tahsildar have got exhausted since the meeting was actually held on 2nd September 2009. Therefore, in face of provisions of Section 35 of the Act, a similar motion cannot be considered till the statutory time limit elapses. Thirdly, the requisition/notice having been exhausted, if members of the Panchayat are asked to assemble again, it would amount to adjourning the meeting held on 2nd September 2009, which is impermissible. Lastly, the complexion of the Panchayat has undergone a change and now there is a 17th member of the Panchayat, whose vote would have to be considered for deciding the fate of the petitioner. 28. As to the first reason the learned counsel for the petitioner may be only technically right. But the directions to convene/reconvene the meeting given in those judgments are not shown to have been questioned or set aside. In any case the questions as to whether such - 19 - direction could be given, could always be debated. And, the learned counsel appearing for parties have joined the debate and thrown light on the issue before me. Therefore, it would be imperative to examine the second and third reasons whereby the learned counsel for the petitioner raises legal objection to convene/reconvene the meeting. 29. As rightly submitted by the learned counsel for contesting respondents, there is no question of convening a meeting or treating the directions in judgments as if it is a fresh requisition for holding a meeting. Therefore, the bar for moving a fresh resolution, whether the lapse of statutory time limit, would not apply. Fictionally, the meeting which was held on 2nd September 2009 would itself re-commence as if the moment