wp167group.doc 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.167 OF 2011 Vishnu R. Patil ..Petitioner versus Group Gram Panchayat, Kharivali & Ors ..Respondents Mr.C.G.Gavnekar for the petitioner. Mr.Pratap Patil for respondent No.1. Mr.S.R.Nargolkar, Addl.G.P with Mr.S.N.Bhosale, A.G.P for respondent Nos.10 to 13. ALONGWITH WRIT PETITION NO.387 OF 2011 Aparna B. Dhumal ..Petitioner versus Mahendra K. Patil & Ors ..Respondents ALONGWITH WRIT PETITION NO.388 OF 2011 Meenakshi P. Patil ..Petitioner versus Mahendra K. Patil & Ors ..Respondents Mr.Pratap Patil for the petitioner. Mr.S.S.Pakale with Mr.Kirankumar Phakade for respondent No. 1. Mr.S.N.Bhosale, A.G.P for respondent Nos.14 to 16. wp167group.doc 2 ALONGWITH WRIT PETITION NO.2444 OF 2011 Shobha T. Chavan ..Petitioner versus Subhash T. Patil & Ors ..Respondents Mr.Avinash B. Avhad for the petitioner. Mr.Rahul S. Kadam for respondent Nos.1 to 9. Mr.S.N.Bhosale, A.G.P for respondent No.10. ALONGWITH WRIT PETITION NO.2481 OF 2011 Jay N. Patil ..Petitioner versus The State of Maharashtra & Ors ..Respondents Mr.R.A.Thorat with Mr.Sandeep S. Salunkhe for the petitioner. Ms.P.S.Cardozo, A.G.P for respondent Nos.1 to 3. Mr.Y.S.Jahagirdar with Mr.Ajit Kenjale for respondent Nos.5 to 7. Mr.Avinash B. Avhad for respondent Nos.8 to 12. Mr.S.A.Rajeshirke for respondent No.13. ALONGWITH WRIT PETITION NO.7753 OF 2010 Chitra R. Marle ..Petitioner versus Ganpat D. Hola & Ors ..Respondents wp167group.doc 3 Mr.R.R.Salvi for the petitioner. Mr.Manoj S. Kadam for respondent Nos.1 to 5, 7 and 8. Mr.S.N.Bhosale, A.G.P for respondent-State. ALONGWITH WRIT PETITION NO.8520 OF 2010 Arun P. Gharat ..Petitioner versus Devidas H. Patil & Ors ..Respondents Mr.R.R.Salvi for the petitioner. Mr.C.G.Gavnekar for respondent Nos.1 to 6. Mr.S.R.Nargolkar, Addl.G.P with Mr.R.M.Patne, A.G.P & Mr.S.N.Bhosale, A.G.P for respondent Nos.9 and 10. ALONGWITH WRIT PETITION NO.4601 OF 2010 Vishwas P. Mokal ..Petitioner versus Group Gram Panchayat Shihu & Ors ..Respondents Mr.C.G.Gavnekar for the petitioner. Mr.S.A.Sawant with Ms.Gunjan Shah for respondent Nos.1,3 and 5 to 10. Mr.R.M.Patne, A.G.P for respondent Nos.12 to 15. wp167group.doc 4 CORAM : S.C.DHARMADHIKARI, J. RESERVED ON : 16th June 2011. PRONOUNCED ON: 26th July 2011. JUDGMENT: . Heard. Rule. By consent, rule returnable forthwith. Respondents waive service. 2 In these petitions under Articles 226 and 227 of the Constitution of India, common questions of law have been argued and, therefore, they are disposed off by this common judgment. Each of these petitions challenge the orders of the Collector and the Commissioner of the concerned districts dismissing the dispute and the appeals which were preferred to question the No Confidence Motion passed against the petitioners herein. wp167group.doc 5 3 The petitioners are either the Sarpanch or Upa- Sarpanch of the concerned Gram Panchayat. In terms of the statutory provisions, the members of the Panchayat are entitled to bring a motion of no confidence against the Sarpanch and Upa-Sarpanch. The statutory provision in that regard is found in section 35 of the Bombay Village Panchayats Act, 1958 (for short “the Act”), which reads thus: “35. Motion of no confidence.-[(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 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]. (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 wp167group.doc 6 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, 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 (3-B); and thereupon the office held by such Sarpanch or Upa-Sarpanch shall be deemed to be vacant. [Provided that, where the office of the Sarpanch being reserved for a woman, is held by a woman Sarpanch, such motion of no-confidence shall be carried only by a majority of not less than three-fourth of the total number of the members who wp167group.doc 7 are for the time being entitled to sit and vote at any meeting of the Panchayat.] [Provided further 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. (3-A) If a motion [is not moved or is not carried] by [a majority of not less than two-third of] [or, as the case may be, three-fourth, 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 within, a period of [one year] [from the date of such special meeting. (3-B) 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 of 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 wp167group.doc 8 received by him; and any such decision shall, subject to an appeal under sub-section (3-C), be final. (3-C) 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 possible, within fifteen days from the date on which the appeal is received by him, and any such decision shall be final. (3-D) Where on a reference made to him under sub-section (3-B), 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 under sub-section (3-C) within the limitation period specified in that sub-section, or where an appeal is made under sub-section (3-C) 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 by such wp167group.doc 9 Sarpanch or Upa-Sarpanch shall be deemed to be vacant]. (4) 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 A bare perusal of this provision would indicate that the motion of no confidence may be moved by the specified number of members after giving such notice thereof to the Tahsildar as may be prescribed. The notice once given shall not be withdrawn. The word “prescribed” means “prescribed by rules”. Hence, it would be necessary to refer to the relevant Rules of the Bombay Village Panchayat, Sarpanch and Upa- Sarpanch (No Confidence Motion) Rules, 1975. They read wp167group.doc 10 thus: “2(1) The members of a panchayat who desire to move a motion of no-confidence against the Sarpanch or the Upa-Sarpanch shall give notice thereof in the form appended hereto to the Tahsildar of the taluka in which such panchayat is functioning. Where the members desire to move the motion of no-confidence against the Sarpanch as well as the Upa-Sarpanch, they shall give two separate notices. (2) The notice under sub-rule (1) shall be accompanied by [nine additional copies] thereof, and the Tahsildar shall send one copy to the Sarpanch, one to the Upa-Sarpanch and one each to the Zilla Parishad, the Panchayat Samiti, the Collector and the Commissioner, one copy shall also be given to the Secretary. (2-A) The Tahsildar shall also publish the said notice by placing the same on the notice board at the office of the Panchayat and Tahsildar Office. (2-B) Every notice under sub-rule (1), wherever it may be practicable, be served by delivering or wp167group.doc 11 tendering it to the Sarpanch or Upa-Sarpanch to whom it is addressed or, where such person cannot be found, by delivery or tendering it to any adult member of his family residing with him; and if no such adult member can be found or, where the Sarpanch, Upa-Sarpanch or such adult member, as the case may be, refuses to accept the notice, it shall be served by affixing it, in the presence of two witnesses, on the outer door or some other conspicuous part of the house in which such Sarpanch or Upa-Sarpanch ordinarily dwells. The notice served in this manner shall be deemed to the served or tendered or delivered to the concerned Sarpanch or Upa-Sarpanch.] (3) The Tahsildar shall, immediately on receipt of notice under sub-rule (1), satisfy himself that the notice has been given b y not less than one-third of the total number of members (other than associate members) who are for the time being entitled to sit and vote at any meeting of the panchayat and then convene a special meeting for the purpose within seven days from the date of receipt of such notice. 3 Immediately after the meeting, the wp167group.doc 12 Tahsildar shall communicate to the Zilla Parishad, the Panchayat Samiti, the Collector and the Commissioner, the names of all the members of the Panchayat who were present at the meeting, the decision taken on motion, and the number of votes in favour of; or against, the motion.” 5 Since considerable emphasis has been laid on the Bombay Village Panchayats (Meetings) Rules, 1959, the Rules to the extent relevant, are reproduced herein below: “17(1) A member who has given notice of a motion shall, when called on, either.- (a) state that he does not wish to move the motion; or (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) If a member when called is absent, any wp167group.doc 13 other member may, with the permission of the person presiding, move the motion standing in the name of the absent member. If permission is not granted to the other member to move the motion, the motion shall lapse. 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. 19 After a motion has been moved and seconded, it shall not be withdrawn or altered in substance, except with the consent of the member who seconded it. 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.” 6 In each of these petitions, the argument is that the wp167group.doc 14 notice of No Confidence Motion was given to the Tahsildar by the specified number of members and pursuant thereto a meeting was convened by him for considering the motion of no confidence. The Tahshildar presided over such meeting. The motion may have been carried by the requisite majority but what the Collector and the Commissioner failed to notice and rather over-looked, is a fact that the proceedings and the minutes would indicate that at the meeting, the motion of no confidence was not moved at all. The meeting began but the Presiding Officer did not call upon anybody to move the motion and once the motion was not moved and seconded in terms of the aforementioned Rules, then, it cannot be said to have been validly passed. The infirmity and defect of the above nature is fatal and incurable. Once nobody moved the notice of no confidence and has not seconded it, then, putting it to vote was impermissible. If it was so impermissible, then, all further proceedings are illegal, invalid and without any legal efficacy. The No Confidence Motion, therefore, cannot be taken to have been carried and passed at all. In such circumstances, the wp167group.doc 15 decision rendered by the Collector and the Commissioner, without adverting to these issues, cannot be sustained and must be set aside. Resultantly, each of the petitioners would continue either as Sarpanch or Upa-Sarpanch. 7 Relying upon a Full Bench decision of this Court reported in 2011(3) Bom.C.R. 495 (Viswas Pandurang Mokal Vs. Group Gram Panchayat Shihu and others), it is contended that the meeting rules are applicable. Once it is held by the Full Bench that meeting rules and in particular, Rule 17 applies to the meeting convened, pursuant to the notice of no confidence envisaged by section 35(1) of the Act, then, non-adherence thereto renders the proceedings bad in law. If the No Confidence Motion is not moved in terms of these rules, then, all subsequent steps are vitiated and the petitioners deserve to succeed on this short ground alone. It is contended that Rule 17 is mandatory and that is how the Full Bench judgment must be read. wp167group.doc 16 8 The second contention in some of the matters is that No Confidence Motion Rules and particularly, Rule 2, Sub-rule 1 thereof read together with the Form appended to the Rules, make it mandatory for the members moving the motion to state the reasons for proposing a motion of no confidence. This is to enable the Sarpanch and Upa-Sarpanch to exercise his right to speak or otherwise to take part in the proceedings in the meeting as conferred by sub-section 2 of section 35. In the absence of any reasons in the notice of No Confidence Motion, the petitioners are handicapped and, therefore, it must be held that the notice itself was bad in law. Consequently, all further steps in pursuance of such an invalid and illegal notice are unsustainable and deserve to be set aside. Reliance is placed on certain judgments of this Court and the wording of the Rule 2 so also the contents of the Form appended to the No Confidence Motion Rules. 9 For properly appreciating these contentions, it will be necessary to see factual materials. wp167group.doc 17 10 In Writ Petition No.167 of 2011, it is the case of the petitioner that he was elected as Sarpanch of group Gram Panchayat on 29th October 2007 and respondent Nos.2 and 9 are members of the said group Gram Panchayat. The petitioner states that respondent Nos.2, 5, 7 and 8 served a notice of requisition on Tahsildar on 23rd September 2010 requesting him to convene a meeting to move and pass a vote of No Confidence against the petitioner. That meeting was convened by the Tahsildar on 27th September 2010. The proceedings of the meeting are referred to and it is urged that out of 9 members who were present, 7 voted in favour of the No Confidence and 2 opposed the same. The objection is that the meeting was not properly convened. Apart from the fact that such a contention is raised, it is urged that the notice of the meeting which was required to be issued to the petitioner ought to accompany a copy of requisition submitted by the members desirous of moving the No Confidence Motion. Such requisition was not enclosed alongwith the notice served by the Tahsildar wp167group.doc 18 on the petitioner and other members of the Gram Panchayat. It is then contended that resolution of No Confidence was not moved by any of the members nor seconded. Therefore, the No Confidence Motion passed in the meeting dated 27th September 2010 is illegal. 11 It is argued that such a contention was specifically raised before the Collector and Commissioner but they have failed to render any finding on the same. All that has been held is that the meeting was convened, it was attended by 9 members, the No Confidence Motion was carried by the requisite numbers, viz., 7 against 2 which demonstrates that the petitioner has lost confidence of the members and he should be removed as a Sarpanch in accordance with their wishes. However, whether the resolution was moved and seconded has not been decided at all. Equally, whether the notice of the meeting should have been served in accordance with the Rules i.e, if the notice has to accompany the requisition, whether that requisition was served alongwith the wp167group.doc 19 notice or not has also not been decided. For these reasons, it is submitted that the orders of the authorities be set aside. 12 In Writ Petition No.387 of 2011, the challenge is to the No Confidence Motion on the same grounds, namely, neither proposed or seconded by anybody. Therefore, there is non compliance with Rules 17 to 26 of the Bombay Village Panchayat (Meeting) Rules, 1959. The other argument is that the minutes of the special meeting dated 2nd March 2010 shows that the resolution of No Confidence was passed against the Sarpanch as well as Upa-Sarpanch in the same meeting and this is impermissible because once separate requisitions were given, separate meetings ought to have been convened. 13 In Writ Petition No.388 of 2011, identical contentions with regard to the No Confidence Motion not being proposed or seconded has been raised by the Sarpanch. wp167group.doc 20 14 In Writ Petition No.4601 of 2010 which is at the instance of the petitioner herein, a reference was made to the larger Bench for deciding the questions referred to herein above. However, there also, the challenge is to the proceedings on the same ground, viz., the No Confidence Motion not being moved by any of the members or seconded by anybody. Similarly, the requisition submitted by the members did not contain the grounds specifying the reasons for moving resolution of No Confidence. Unless the requisition contains the valid grounds, it was not incumbent upon the Tahsildar to issue the notice convening the meeting and, therefore, the notice itself was illegal. 15 In Writ Petition No.2444 of 2011, a No Confidence Motion and the orders of the authorities are challenged on the ground that the No Confidence Motion was not moved or seconded. 16 In Writ Petition No.2481 of 2011, one of the grounds wp167group.doc 21 is about the No Confidence Motion not being moved and seconded, but, as far as the other grounds of challenge are concerned, I will advert to them a little later. 17 Writ Petition No.7753 of 2010 also raises challenge to No Confidence Motion on the ground of No Confidence Motion not being moved or seconded. 18 In Writ Petition No.8520 of 2010, the challenge is two fold. Firstly, that No Confidence Motion was not validly carried because two persons, namely, Devidas Haribhau Patil and Jayashree Narayan Patil have been permitted to cast their vote. Once they were declared unfit, they ought not to have been permitted to vote. There are other challenges as well to which a reference will be made a little later. It is also contended that the petitioner Sarpanch was not allowed to speak during the meeting convened for passing the Motion of No Confidence. wp167group.doc 22 19 A bare perusal of section 35 of the Bombay Village Panchayats Act, 1958, would indicate that in terms of the sub- section 1 thereof, requisite persons have to give a notice to the Tahsildar requesting him to convene a meeting to consider the No Confidence Motion against the Sarpanch or Upa-Sarpanch as the case may be. The notice once given cannot be withdrawn. 20 Sub-section 2 thereof requires the Tahsildar to convene the meeting in terms of the notice, but, before the meeting is convened and within the period specified therein, he must issue notice to the Sarpanch/Upa-Sarpanch as the case may be and ensure its receipt. If the meeting is convened, the Sarpanch shall have right to speak and vote or to otherwise take part in the meeting. 21 At the meeting convened in terms of sub-section 3 the Motion of No Confidence has to be carried by the requisite number of members entitled to sit and vote. It is only when the Motion is put to vote and carried, that it can be said to be wp167group.doc 23 passed and thereafter, the further provisions shall follow. 22 Therefore, the argument is that this section enables a notice to be given to convene a meeting. The notice has to be in the prescribed form. The notice is to indicate the particulars mentioned therein. It is submitted that at the stage at which the members give such a notice, it is only a request to the Tahsildar to convene the meeting. This is not moving of the Motion of No Confidence but only a request made in writing to convene a meeting to move such a Motion. In this context, this is what the full Bench has held: “17. Thus, Rule 17 provides that the person who has submitted notice of the motion shall move the motion in the meeting. Rule 20 deals with how amendments to the motion can be proposed. Rule 21 deals with how a person who wants to speak on a motion has to address. What should be the duration of the speech and what is the decoram to be followed in speaking at the meeting. Thus, in these Rules provisions in detail have been made wp167group.doc 24 for the conduct of the meeting both ordinary and special of the village panchayat. Perusal of the No Confidence Motion Rules shows that they do not contain any provision in relation to the conduct of the meeting. Provisions for conduct of the meeting of the village panchayat are to be found in the Meeting Rules. The manner of submitting a requisition for convening a special meeting of the village panchayat to consider motion of no confidence against the Sarpanch or Up-Sarpanch is to be found in sub-section 1 & 2 of Section 35 and the No Confidence Motion Rules. But neither in Section 35 nor in the No Confidence Motion Rules we find provisions made as how many days notice should be given to the members of the Special meeting to be convened under Section 35. Therefore, in our opinion, for that purpose one will have to follow the provisions of the Meeting Rules because they lay down as to how many days notice of special meeting is to be given to the members. Section 35 provides that the Sarpanch or Up-Sarpanch against whom the motion is to be moved is entitled to attend and participate in the meeting, and he is entitled to speak at the meeting. But there is no provision to be found made in wp167group.doc 25 Section 35 or in the No Confidence Motion Rules as to the manner in which the Sarpanch or Up- Sarpanch can exercise his right to participate and speak at that meeting. Provisions for that purpose are to be found in the Meeting Rules. Neither Section 35 nor No Confidence Motion Rules lay down as to what is to be done if the requisite quorum is not present at such meeting. But the Meeting Rules contain provisions in that regard.