1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO. 4238/ 2011 (VAISHALI R. WADANDRE VERSUS DIVISIONAL COMMISSIONER, NAGPUR & OTHERS) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri U.K. Bisen, counsel for the petitioner. Shri D.B. Patel, counsel for the respondents. CORAM : SMT. VASANTI A. NAIK, J. DATE : SEPTEMBER 8 , 2011 . By this petition, the petitioner challenges the No Confidence Motion passed against the petitioner and also the orders passed by the Additional Collector and the Divisional Commissioner dismissing the appeals filed by the petitioner challenging the resolution of the No Confidence Motion under Section 35 of the Bombay Village Panchayats Act. The petitioner challenges the No Confidence Motion on four grounds. It is the case of the petitioner that the Motion was not proposed or seconded in accordance with the provisions of Rule 17 of the Bombay Village Panchayats (Meeting) Rules and hence, the appeals filed by the petitioner ought to have been allowed by the authorities. In this regard, it is necessary to consider the minutes of the meeting held on 06.04.2011. It is observed in the minutes that the meeting was called for considering the allegations raised against the petitioner in the notice issued to the members. It is observed in the minutes that six members were present in the meeting, whereas three members of the Panchayat were absent. It is 2 observed that the charges mentioned in the notice of no confidence were elaborately discussed in the meeting. Each and every allegation levelled against the petitioner appears to have been discussed in the meeting. Every member present in the meeting was granted an opportunity of being heard. The members then asked the Tahsildar to seek the votes of the members on the No Confidence Motion. All the members present in the meeting voted in favour of the resolution. The resolution was passed against the petitioner unanimously by the members present in the meeting by show of hands. In this background, it cannot be said that the No Confidence Motion passed against the petitioner was invalidated because it was not proposed or seconded. This Court has held in the judgment dated 26.07.2011 in a Bunch of writ petitions bearing Writ Petition No.167 of 2011 & others that the house can discuss a resolution even in the absence of anybody moving and seconding it once it is on the agenda and when on its turn, the Presiding Officer calls it out. It is observed in the said unreported judgment that at a general meeting a formal moving and seconding of the motion would be necessary but, non-adherence thereto is not always fatal. In the decided cases, it was not shown by the petitioners therein that prejudice was caused to the petitioners because the motion was not proposed and seconded in the meeting. Similar is the case here. The petitioner has not pointed out any prejudice. On a reading of the minutes of the meeting, it appears that the resolution has been validly passed against the petitioner and the proceedings could not be vitiated only on the ground that the motion was not proposed or seconded. Similar view is reiterated in the unreported order dated 3 10.08.2011 in Writ Petition No.3862 of 2011. It is observed by this Court in the said unreported decision that the plea raised by the petitioner can be said to be a highly technical view and would not impinge upon the No Confidence Motion passed again him, as ultimately the right to continue as Sarpanch has to be decided on the floor of the house. The second submission raised by the petitioner about the absence of three clear days notice as required by the provisions of the Bombay Village Panchayats (Meeting) Rules is liable to be rejected mainly because this ground has not been raised by the petitioner in the appeal filed by the petitioner before the Additional Collector under the provisions of Section 35(3-B) of the Act. The ground raised by the petitioner in this regard is as vague as it could be and it does not properly signify anything. The ground is reproduced as follows. GROUND E : “That, the notices of no confidence were in served properly and the applicant/ disputant had not proper and reasonable opportunity of being head in the matter. Hence the impugned resolution passed against the applicant is against the principle of natural justice.” This ground does not show that the petitioner was actually not served with the notice and the notice was not a clear three days notice as required by the Rules. In this background, the petitioner cannot be allowed to say that the notice served on the petitioner was not a clear three days notice and, therefore, she did not have an opportunity of remaining present in the meeting and refuting the charges 4 levelled against her. The ground of absence of three clear days notice appears to be an after thought. Moreover, since the ground is not properly raised in the dispute, the respondents may not have had a proper opportunity of disputing or denying the same. The third ground raised by the petitioner in regard to the applicability of the provisions of Section 35(3-A) of the Act of 1958 and a bar to call a meeting within a period of one year from the date of the special meeting is also liable to be rejected as in the instant case, though the Tahsildar had called a meeting for considering the No Confidence Motion against the petitioner on 15.03.2011, the same was cancelled and the meeting was not held at all. The reliance placed by the learned counsel for the petitioner on the judgment reported in 1998(1) Mh.L.J. 43 (Prakash Barku Patil Versus State of Maharashtra & others) in this regard is clearly misconceived as it is held in the said reported decision that to decide whether the motion was moved or not moved, the meeting in pursuance of the motion of no confidence must be held and the vote must be recorded either against or in favour of the motion. The learned counsel for the petitioner has, in fact, relied on the decision, which supports the case of the respondents and not the case of the petitioner. Since the earlier meeting dated 15.03.2011 was cancelled, it cannot be said that the present meeting dated 06.04.2011 could not have been validly held within a period of one year from 15.03.2011. The no confidence motion passed against the petitioner cannot be invalidated on the ground that a copy of the notice was not given to some of the Authorities. Here too 5 the petitioner has not shown as to what prejudice is caused to the petitioner due to the non-compliance of the provisions of Rule 2(2) of the Bombay Village Panchayats Sarpanch and Upsarpanch (No-Confidence Motion) Rules, 1975. Moreover, it is observed by this Court in the judgment reported in 2003(1) Mh.L.J. 420 (Durgadas Ukhaji More & others Versus Additional Commissioner, Nashik Division, Nashik & others) that the persons, who wish to move a resolution, are required to give a notice to the Tahsildar along with the additional copies and once they do so, their responsibility ends and they cannot be faulted for the failure on the part of the Tahsildar to thereafter give notice to some of the parties. Since there is no merit in the writ petition, the same is dismissed with no order as to costs. JUDGE APTE