1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION WRIT PETITION NO.8820 OF 2009 ALONGWITH CIVIL APPLICATION NO.2858 OF 2009 WITH CIVIL APPLICATION NO.2912 OF 2009 WITH CIVIL APPLICATION NO.2913 OF 2009 WITH CIVIL APPLICATION NO.2914 OF 2009 WITH CIVIL APPLICATION NO.2915 OF 2009 WITH CIVIL APPLICATION NO.2916 OF 2009 WITH CIVIL APPLICATION NO.2917 OF 2009 WITH CIVIL APPLICATION NO.2918 OF 2009 WITH CIVIL APPLICATION NO.2919 OF 2009 WITH CIVIL APPLICATION NO.2920 OF 2009 WITH CIVIL APPLICATION NO.2921 OF 2009 WITH CIVIL APPLICATION NO.2922 OF 2009 WITH CIVIL APPLICATION NO.2923 OF 2009 WITH CIVIL APPLICATION NO.2924 OF 2009 1 Patel Ketanbhai Dahyabhai Aged about 35 years presently residing at 40-A, Ghelwad Faliya Dabhel, Daman 2 2 Laxmanbhai J. Solanki Aged about 50 years presently residing at Amarshiv Building, Harmatiya Wadi, Vanakbara- Diu ...Petitioners. v. 1 Union of India through the Mumbai Office, located at Aayakar Bhavan, Marine Lines, Mumbai 2 Union Territory of Daman & Diu through the Administrator, having his office at Secretariat Building, Fort Area, Moti Daman, 3 Bhandari Rameshbhai Mohanbhai 4 Halpati Damyantiben Hirabhai 5 Kamli Mukeshbhai Vishnubhai 6 Patel Dilipbhai Akhubhai 7 Varli Bachubhai Govindbhai 8 Baria Fulvantiben Amrutlal 9 Makwana Labhuben Ramesh 10 Baria Shankar Bhagwan 11 Rakshabhai Vasram 12 Patel Navinbhai Ramanbhai 13 Patel Gajubhai Dahyabhai 14 Patel Ishwarbhai Bhanabhai 15 Dhodia Devabhai Radkabhai 16 Patel Sureshbhai Jagubhai 17 Patel Hareshbhai Hirabhai 18 Patel Tarunaben Lalubhai 19 Bamania Premji Lakhman 20 Chavda Raja Bhagwan 21 Bamania Ramjibhai Nos.3 to 21 through the office of Chief Executive Officer, 3 Union Territory of Daman & Diu, having his office at District Panchayat Office, Opp. New Collectorate Office, Dholar, Moti Daman ...Respondents. Mr.P.K.Dhakephalkar, Sr.Adv. with Mr. Bhavesh Parmar advs. For the Petitioners. Mr.Ashok Varma with Mr.Dushyant Purekar, advs. For the Respondent No.1. Mr. Balkrishna D. Joshi, adv. for the Respondent Nos.4,6,7,12,13 and 16. Mr.R.V.Govilkar with Mr.S.S.Aradhye and Mr.V.S. Jabra, advs. for the Respondent No.17. Mr.Girish Kulkarni with Mr.S.S.Deshmukh, advs. for the Respondent Nos.2 and 21. Mr.V.V.Pethe, adv. for the Respondent Nos.5, 8 to 11, 15. Mr.G.S.Godbole with Mr.C.N.Kumar for Intervenors in all civil applications. CORAM : F.I.REBELLO & J.H. BHATIA, JJ. DATED : 25h November , 2009 ORAL JUDGMENT: (Per J.H.Bhatia, J.) 1 Rule. Rule made returnable forthwith. With consent of the learned counsel for the parties, petition is taken up for final hearing immediately. 2 Petitioner nos.1 and 2 were the President-cum-Chief- Counsellor and Vice-President-Cum-Counsellor of the District Panchayat for Daman and Diu. They were elected as the President and Vice President of the District Panchayat in October, 2005. According to the 4 petitioners, the District Panchayat had in all 34 members comprising of 20 directly elected memebers and 14 Chair-persons of Village Panchayats. One of the members, who was chair-person of a Village Panchayat resigned on 16.9.2009. On 29.9.09 a proposal was submitted by some members for passing ‘No Confidence Motion’ against the petitioners to remove them from the post of President and Vice- President respectively. Accordingly, on 30.9.2009 the Chief Executive Officer issued a notice and convened meeting on 9.10.2009 to consider the ‘No Confidence Motion’. Petitioner Nos.1 and 2 raised certain objections. However, the meeting was held on 9.10.2009. It was attended by only 21 members. Out of them 17 members voted for No Confidence Motion and only 4 objected. As a result ‘No Confidence Motion’ was declared to be carried and passed against the petitioners. According to the petitioners, as per the provisions of Regulation 7, the total number of seats in the District Panchayat is 34 and ‘No Confidence Motion’ could be carried by majority of the total number of members of the Panchayat. In view of this, taking into consideration the total number of seats and the members of the panchayat being 34, ‘No Confidence Motion’ could be carried and passed only if 18 members would have voted for ‘No Confidence Motion’ but as only 17 members had voted for the No 5 Confidence Motion, it could not be treated to have been carried and passed by majority of the total number of members. It is contended that there is no provision for passing any No Confidence Motion against the President-cum-Chief Counsellor and Vice President-cum Counsellor of the Panchayat in the Regulations and therefore, The Daman and Diu District Panchayat (Motion of No Confidence against President-cum- Chief Councillor and Vice-President-cum-Councillor) Rules, 1997 (Hereinafter referred to as ‘Rules’) providing for ‘No Confidence Motion’ against President and Vice-President are ultra vires the provisions of the Regulations. Hence, the Rules are liable to be declared illegal and contrary to the Daman & Diu Village Panchayats (Amended) Regulation, 1994” (Hereinafter referred to as “Regulations” ). They also prayed for quashing and setting aside the ‘No Confidence Motion’ passed on 9.10.2009 by the District Panchayat under the Rules. 3 Heard the learned counsel for the Parties. 4 Mr. Dhakephalkar, the learned senior counsel for the petitioners vehemently contended that in Regulation 19(1)(a), there is a provision for election of Chairman and a Vice-Chairman of Village Panchayat while under Regulations 19(1)(b), there is a provision for election of Chair-person and Vice-Chairperson to be designated 6 President-cum-Chief Counsellor and Vice-President-cum-Counsellor respectively of the District Panchayat and, therefore, words ‘Chairman’ and ‘Vice-Chairman’ are not used with reference to election of President and Vice-president of District Panchayat. He contended that Regulation 24 deals with ‘No Confidence Motion’ against Chairman and Vice- Chairman and it nowhere refers to any ‘No Confidence Motion’ against the President-cum-Chief Counsellor or Vice -President-cum-Counsellor of the District Panchayat and, therefore, Regulation 24 cannot be put in use for the purpose of bringing motion of ‘No Confidence’ against the President and Vice-President of the District Panchayat. He also contended that Rules providing for such a Motion of No Confidence are ultra vires Regulations and, therefore, they are liable to be set aside. On the other hand, the learned counsel for the respondents contended that the Regulation 24 providing for ‘Motion of No Confidence’ is applicable to Chairman or Vice Chairman of any Panchayat whether it is Panchayat at the village level or the District level and for this purpose, they relied on the definitions of relevant terms in Regulation 2. 5 Under Regulation 2(b) Chairman and the Vice-Chairman mean respectively the Chairman and Vice-chairman of a Panchayat. Regulation 2(i) defines Panchayat. It reads as follows: 7 “2(i) “Panchayat” means village Panchayat or district Panchayat, as the case may be, established under the provisions of this Regulation.” In view of this definition word ‘Panchayat’ includes Village Panchayat as well as District Panchayat and it has to be interpreted as such depending on the context in which provisions of law are made. Regulation 2(cc) provides that District Panchayats means a Panchayat established under section 3A. As per Regulation 2(jb) “President-cum-Chief Counsellor” and Vice- President-cum-Counsellor means the President-Chief Counsellor and the Vice- President-cum-Counsellor, as the case may be, of the district Panchayat;” In view of the rival contentions of the learned counsel for the parties, it will be useful to quote the relevant provisions of Regulations 19 and 24. Regulations 19 and 24 read as follows: “19. Election of Chairman and Vice-Chairman.- (1) At the first meeting of a Village Panchayat or the district Panchayat, as the case may be, to be called on a date fixed by the Administrator.- (a) the members of a village Panchayat shall elect, from amongst themselves, a Chairman and a Vice- Chairman; (b) the elected members of the district Panchayat and the Chairpersons of the Panchayats at the village level shall elect from amongst the elected members of the district Panchayat a Chair- person and a Vice- Chairperson to be designated as a President-cum- 8 Chief-Counsellor and Vice-President-cum-Counsellor respectively; Provided that the offices of the Chairman shall be reserved for the Schedule Castes and the Schedule Tribes, the number of such offices being determined by the Administrator by order to be published in the Official Gazette, which shall bear, as nearly as may be, the same proportion to the total number of such offices in the panchayats as the population of Schedule Castes in the Union territory or of the Schedule Tribes in the Union territory bears to the total population of the Union territory. Provided further that offices of the chairman shall also be reserved for women, the number of offices being determined by the Administrator by order to be published in the Official Gazette, which shall not be less than one third of the total number of offices of the Chairman in the Union Territory. Provided also that the number of officers of the Chairman reserved under this sub-section shall be alloted by rotation to different panchayats in such manner as may be determined by the Election Commission”. (2)Such officer as may be specified in this behalf by the Administrator shall preside at such meeting but shall not have the right to vote. (3)No business other than the election of the chairman and vice-chairman shall be transacted at such meeting. (4)In case of equality of votes, the result of the election shall be decided by lots drawn in the presence of the officer aforesaid in such manner as he may determine. (5)In the event of a dispute arising as to the validity of the election of the chairman or the vice- 9 chairman, the dispute shall be referred to the Election Commission and its decision thereon shall be final. 24 Motion of no-confidence.----(1) A Motion of no- confidence may be moved by any member of a Panchayat against the Chairman or the vice-Chairman after giving such notice thereof as may be prescribed. (2) If the motion is carried by a majority of the total number of members of the Panchayat, the Chairman or the vice-chairman, as the case may be, shall cease to hold office after a period of three days from the date on which the motion is carried unless he has resigned earlier. (3) Notwithstanding anything contained in this Regulation, the Chairman or the vice-chairman shall not preside over a meeting in which a vote of no- confidence is discussed against him, but he shall have the right to speak or otherwise take part in the proceedings of such meeting.” 6 Regulation 19(1)(a) provides that members of Village Panchayat shall elect from amongst themselves a Chairman and Vice- chairman and Regulation 19(1)(b) deals with election of Chair-person and Vice-chair-person of the District Panchayat to be designated as President-cum-Chief-Counsellor and Vice-President-cum-Counsellor respectively. On careful perusal of the language used in both these clauses, it appears that words ‘Chairman’ and ‘Vice-Chairman’ are equivalent to and inter changeable with words ‘Chair-person’ and ‘Vice- 10 Chair-person’ respectively. While clause (a) provides for election of Chairman and Vice-chairman of the Village Panchayat, in clause (b), Chairmen of the Village Panchayats are referred as “Chair-persons” of the Panchayat at village level and then Clause (b) goes to provide that elected members of the District Panchayat and the chair-persons of the Panchayat at the village level shall elect from amongst the elected members of the District Panchayat a “chair-person” and a “Vice-chair- person”. It provides that a Chair-person or Vice-chairperson of the District Panchayat shall be designated as President-cum-Chief- Counsellor and Vice-President-cum-Counsellor respectively. As indicated above, in Clause (a) and Clause (b) words ‘Chairman’ and ‘Chair-person’ of the Panchayat at the village level are used in the same sense. Infact, under Section 13(1) of General Clauses Act, 1897 in all the Central Acts and Regulations, unless there is anything repugnant in the subject or context, words importing the masculine gender shall be taken to include females. Therefore, whether a person elected to the post of chairperson of Panchayat, is a man or woman, he or she may be called Chairman. However, to make the post gender neutral, instead of using the word ‘Chairman’ sometimes word ‘Chair-person’ is used and it appears that while in clause (a) legislature used the word ‘Chairman’, in 11 clause (b) for same post, word ‘Chair-person’ is used with reference to Panchayat at village level. Thus, it is clear that there is provision for election of Chair-man or Chair-person of the Village Panchayat. Similarly in clause (b) there is a provision for election of Chair-person and Vice-Chair-person of District Panchayat and after being so elected, they have to be designated as President-Cum-Chief-Counsellor and Vice- President-cum-Counsellor respectively. 7 Regulation 24 provides for ‘No Confidence Motion’ and in the said Regulation, words ‘Chairman’ and ‘Vice-Chairman’ of the Panchayat are used. As stated earlier, under the Regulation 2(i), Panchayat means Village Panchayat as well as District Panchayat and as per Regulation 2(b), Chair-man and Vice-Chairman mean Chair-man and Vice-Chairman of Panchayat. It may be Village Panchayat or District Panchayat. In view of this, it must be held that ‘No Confidence Motion’ may be moved against Chairman or Vice-Chairman of the Village Panchayat as well as District Panchayat. 8 The learned senior counsel for the petitioner vehemently contended that even if Regulation 24 is applicable in case of the President and Vice-president of the District Panchayat, Regualtion 24(2) requires that No Confidence Motion has to be carried by the majority of 12 the total number of members of the Panchayat. According to him, Regulation 7(2)(b) provides for the total number of seats of the District Panchayat, which are 34, including 20 elected members and 14 Chairpersons of the Village Panchayats. As the sanctioned strength of the District Panchayat is 34, it is necessary that the motion should be carried by majority of 34 members. According to him, in the present case only 17 members voted for ‘No Confidence Motion’ and, therefore, it could not be treated to have been carried by the majority of the total number of members of the Panchayat. In support of his contention he placed reliance upon Raees Ahmed vs. State of U.P. and Others (2000) 1 SCC 432. In that case, question was whether a nominated member, who was not given right to vote could be counted in total number of members of the Municipality for passing a No Confidence Motion. Taking into consideration provisions of Section 87-A of the U.P. Municipalities Act, 1916, two Judges’ Bench of the Hon’ble Supreme Court held that the nominated members would also be counted in total number of members even though they did not have right to vote. Question was again before the Three Judges’ Bench of the Supreme Court in Ramesh Mehta v. Sanwal Chand Singhvi and Others (2004) 5 SCC 409. Under that Act, ‘No Confidence Motion’ against the 13 Chairman could be carried by the “majority of 2/3rd members of whole number of members” of the Municipal Board “Whole number of members” and “Total number of members” were used in same meaning in that Act. After taking into consideration the provisions of the Rajasthan Municipalities Act, 1959, before as well as after the amendment in 1994 and after taking into consideration the provisions of Article 243-R of the Constitution of India, Their Lordships held that before as well as after the amendment in the said Act, Chairman could be elected by the elected members of the board from amongst themselves and ‘No Confidence Motion’ against the Chairman or Vice-Chairman could be carried only if it is passed by the votes of the majority by whole number or total number of elected members, who were entitled to vote. Their Lordships observed as follows in Paragraph 11: “11. In the present case, on facts, we are concerned with post-1994 position. Article 243-R brought about a drastic change in the matter of composition of Municipalities. It lays down guidelines with regard to the constitution, composition, election and rights of the members of a Municipality. Under the said Act, members of a Municipality are persons chosen by direct election by the residents of a municipal area (ward). Article 243- R(2)(a)(i) allows the legislature of a State to appoint any person as a member of the Board who has special knowledge in the field of municipal administration, however, the proviso appended to the said article precludes persons nominated under sub-clause (i) from having a right to vote in the meetings of the 14 Municipality. The Constitution, therefore, makes a distinction between elected members and nominated members who play essentially an advisory role. Pursuant to the Seventy-fourth Constitutional Amendment of 1994, Sections 9, 65 and 72 of the Act were amended. Prior to the amendment the co-opted members were at par with the elected members, however, after 1994 only elected members and members of the Legislative Assembly have a right to vote under Section 9(1) of the Act. Under sub-section (2) of Section 65, as amended, the Chairman has to be elected by “elected members of the Board”. This change is very important. Prior to 1994, the Chairman was to be elected by the ‘members of the Board”, which is the phrase used in the unamended Section 65(2), as the co-opted members had a right to vote. However, in 1994, Section 65(2) of the Act was amended and the expression “members of the Board” in the old section is substituted by the expression “elected members of the Board”. In fact, the expression “whole number of members” earlier appearing in Sections 65 and 72 of the Act has been deleted because in Section 65(2) it is expressly provided that the Chairman shall be elected only by elected members of the Board from amongst themselves. Therefore, the scheme of post-1994 Act is that the Chairman/Vice-Chairman shall be elected by the elected members of the Board and their office shall stand vacated on passing of no-confidence motion by the elected members of the Board. The position which, therefore, emerges is that both before and after 1994, the no-confidence motion had to be voted upon by members who were entitled to vote. As stated above, Section 3 of the Act begins with the words “unless the context otherwise requires”. Section 3(36) defines the expression “whole number” / “total number” to mean total number of members holding the office at the given time. The said expression “whole number of members” finds place in Rules 3(5), (8) and (9). Hence, we have to read rules 3(5), (8) and (9) in the context of the provisions of the said Act. As stated above, the basic scheme of the Act prior to 1994 and post-1994 has 15 remained unchanged. In both cases, the legislative intent has been that the office of the Chairman/Vice-Chairman shall stand vacated on passing of no-confidence motion by the members of the Board who are entitled to vote. Hence, in our view, the expression “whole number “ or “total number” connotes the “total number of elected members”. 9 It is material to note that way back in 1986 in Shivdas Govind Lanjewar v. The Municipal Council, Bhandara and others 1986 Mh.L.J. 216 Division Bench of this Court was required to interpret provisions of Section 55 of the Maharashtra Municipalities Act which also provided that ‘No Confidence Motion’ could be carried by “2/3rd of total number of councillors”. There were 38 seats of councillors in the Municipal Council excluding co-opted members. One of the elected councillors resigned. Out of 37 councillors, 25 councillors voted in favour of ‘No Confidence Motion’. It was contended that total number of councillors would mean total strength of 38 and 25 votes would be less than 2/3rd and, therefore, ‘No Confidence Motion’ could not be passed. However, Division Bench of this Court after considering the provisions of Section 55 of the Municipalities Act held that total number of councillors mean total number of the councillors, who were entitled to sit and vote and not sanctioned strength which may include vacant seats. For this purpose, Division Bench relied upon the Full Bench judgment of 16 this Court in Namdeorao v. Dolaji 1969 Mh.L.J. 74 wherein different shades of meaning of expression “total number of councillors” were canvassed before the Court. After dealing with all those different shades, Full Bench had held that expression ‘Total number of members could only mean those who are entitled to sit and vote and no more. After referring to the observations of the Full Bench in Namdeorao v. Dolaji (Supra) extensively, the Division Bench in Shivdas (Supra) did not follow Division Bench authority in Bhaskar v. S.G.Daithankar 1970 Mh.L.J. 953 wherein view taken was that total number of councillors in Section 55 of the Municipality Act would mean total sanctioned strength of the council, i.e., the total seats whether vacant or filled. 10 Full Bench authority in Namdeorao was with reference to the provisions of Maharashtra Zilla Parishads and Panchayats Samitis Act, 1961. As there was conflict about interpretation of Section 55 of the Muncipalities Act in Bhaskar v. S.G.Daithankar (Supra) and Shivdas Govind Lanjewar v. The Municipal Council, Bhandara (Supra), matter was referred to Full Bench in Ashok Maniklal Harkut v Collector, Amravati and others 1988 Mh.L.J. 378. After taking into consideration the views of two Division Bench as well as Full Bench in Namdeorav v. Dolaji, Full Bench in Ashok M. Harkut v Collector 17 Amravati (Supra) observed as follows in paragraph 13: “13. Therefore, in our view having regard to the scheme of the Act, the phrase ‘total number of councillors’ as used in Section 55(3) of the Act can only mean total number of councillors who are entitled to sit and vote at the relevant time. Hence, we agree with the view taken by the Division Bench of this Court in Shivdas Govind’s case.” Full Bench authority in Ashok M. Harkut and the Division Bench authority in Shivdas Govind are aptly applicable to the facts of the present case. Admittedly, sanctioned strength or the total number of seats of the District Panchayat was 34. However, one of the members had resigned and, therefore, effective strength of the District Panchayat was 33, who could sit and vote. Out of 33 members, 17 voted in favour of the No Confidence Motion and, therefore, it must be held that No Confidence Motion was carried and passed by majority of the total number of members of the Panchayat who at the relevant time could sit and vote. 11 During the arguments, the learned Senior Counsel for the petitioner contended that as per the provisions of Regulations 7(2)(c) District Panchayat shall consist of following members: (i) elected members for the seats referred to in sub-section (1); 18 (ii) the Chairperson of the Panchayats at the village level; (iii)the Member of the House of the People representing the Union Territory.” He contended that in view of this composition besides 20 elected members and 14 chairpersons of the Village Panchayats, member of the House of the People representing Union Territory of Diu and Daman is also a member and including him, total strength of the District Panchayat would be 35 and even if one chair-person of Village Panchayat had resigned, still effective strength would be 34 and, therefore, No Confidence Motion could not be carried by 17 votes. At the outset, it may be stated that this plea was never taken in the petition. This contention was urged for the first time in the arguments. In view of this, it was not necessary for us to consider this objection to carrying of the No Confidence Motion. However, on perusal of legal provisions, we find that there is no substance in this contention also. Even though member of House of People or Loksabha representing Union Territory is a member of the District Panchayat, he is not entitled to vote in the election of the chairperson or vice-chairperson of the District Panchayat as would be clear from the Regulation 19(1)(b) quoted above. Only elected members of the District Panchayat and chairpersons of the Panchayat at the village level are entitled to vote in the election for post of chair- 19 person and vice-chairperson of the District Panchayat. Member of Loksabha is not entitled to vote. If the member of Loksabha representing Union Territory is not entitled to vote for election of chair-person and vice-chair-person of the District Panchayat, he also could not be entitled to