-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No.947 of 2008 Shri Chandrakant Vayankatrao Havaldar ..Petitioner vs. 1. Tahsildar lHavel and ors. ..Respondents Mr.Shekhar i/b M/s J.Shekhar and Co. for petitioner. Ms.V.S.Mhaispurkar, A.G.P. for respondents. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. 28th February, 2008 28th February, 2008 28th February, 2008 P.C. P.C. P.C. 1. The petitioner has by this petition under Article 227 of the Constitution of India challenges the order passed by the Divisional Commissioner, Pune Division, Pune. The Divisional Commissioner has confirmed the order of the Collector dated 3rd September, 2007. The Collector by order dated 3rd September, 2007 dismissed the dispute which was raised by the present petitioner with regard to "No Confidence Motion" that was passed against him by the subject gram panchayat. 2. The gram panchayat Shrirramnagar, Taluka Haveli, District Pune is the gram panchayat of which the petitioner was a sarpanch. -2- 3. The total number of members of panchayat is 9. The facts are that 7 members of this panchayat gave a notice to Tahsildar on 28th May, 2007 requesting him to convene a meeting to consider "no confidence motion" against the present petitioner. This "no confidence motion" was received in the office of Tahsildar on 28th May, 2007 and he convened the meeting in accordance with law on 1st June, 2007 at 4 p.m. in the gram panchayat office. The notice of this meeting was given to the petitioner in as much as the petitioner was not in the village and, therefore, it was pasted on the outer door of his residential premises. The meeting was convened and it was attended by the persons who had given the notice. Since the petitioner did not remain present, the motion was put to vote and it was carried with 8 votes in favour and none against. Thus, no confidence motion against the petitioner was passed and in pursuance thereto he came to be removed as a sarpanch of the village panchayat. 4. In accordance with the statutory provisions, the petitioner could have raised a dispute as such before the Collector. it is not necessary -3- to refer to all the grounds disputing the no confidence motion. Only ground that is pressed before me is with regard to the notice. The Collector found that the notice of the meeting was in deed served on the petitioner. The Collector referred to the panchanama of two witnesses who stated that the notice was pasted on the outer door of the premises in their presence. Relying upon this panchanama the Collector held that there is no infirmity in the procedure which was adopted for service of the notice and, therefore, the grievance has no substance. Rejecting this and other grounds of challenge the Collector found that no confidence motion has been validly passed. 5. Aggrieved by the order of the Collector, an appeal was preferred before the Commissioner. The Divisional Commissioner, Pune Division, as has been noticed in several cases, passed a stereotype order. The approach of this Commissioner has been severely criticised by me and in fact adversely commented upon. This is one more instance where the Commissioner has failed to apply his mind to the matter before him. Since this is a regular complaint about the orders passed by the Commissioner. In the -4- peculiar facts of this case and when the arguments were only with regard to the validity of the procedure which was adopted as far as service of the notice of meeting is concerned, I called upon the learned A.G.P. to produce the record. The record has been produced and carefully produced by me. 6. Shri Shekhar, learned Counsel appearing for the petitioner, contended that there may not be any specific provision or procedure with regard to service of notice of meeting convened to discuss and debate upon no confidence motion. Yet, inviting my attention to section 35(2) of the Bombay Village Panchayat Act, Shri Shekhar submitted that what section 35 contemplates and rather mandates in the meeting which is the subject meeting for considering no confidence motion against the Sarpanch or Up Sarpanch, he has a right to speak or otherwise, take part in the proceedings at the meeting including the right to vote. For this right to be meaningful or purposeful it must be shown that the Sarpanch had all opportunities to attend but he failed to avail of the same. In the instant case the petitioner Sarpanch was on leave from 25th May, 2007 to 30th May, 2007. His leave application -5- was on record of the panchayat. Therefore, the notice was moved in his absence and even taken up for consideration in his absence. It has not been demonstrated that the petitioner has in deed failed to avail all the opportunities. 7. To appreciate this contention, it must be noticed at once that there is no prohibition in law for a notice requesting convening of a meeting to pass no confidence motion being issued in absence of the Sarpanch. For such a notice to be issued, requesting Tahsildar to convene the meeting, it is not necessary that Sarpanch should be available. Further, the law does not provide that Tahsildar cannot take cognisance of a request made by the members merely because Sarpanch is not present in the village. The notice requests the Tahsildar to convene the meeting and it is open to him to take cognisance of that request. All that the law contemplates is that the petitioner Sarpanch must have an opportunity to participate in the proceedings. He must be allowed to speak and vote. If that opportunity is available to the petitioner but he does not avail of the same himself, then, he cannot blame the Administration. The law on this point is -6- settled. In 1965 Mh.L.J.Note 102 (Lakshman Vs.Gram Panchayat, Mangaladevi and in a decision reported in 1998(3) Mh.L.J. 204 (Nimba Rajaram Vs.Collector, Jalgaon) it is observed by this Court that if the notice of the meeting could not be served personally on the Sarpanch or Upsarpanch, then, there is enough compliance with the requirement of service if the said notice is pasted on the front door of the residential premises. 8. In the present case the notice was received in the office of Tahsildar on 28th May, 2007 by the Tahsildar. Thereafter the Tahsildar took steps to serve the notice. Since the petitioner and his family was out of village and house was locked, the notice was pasted on 29th May, 2007 at 5.40 p.m. in the evening on the outer door of the residential premises of the petitioner. The notice was pasted by the Talathi in presence of panchas,. There is no dispute before me that the notice was in deed pasted on the outer door. The only dispute raised before me is that the panchas during the course of their statements being recorded before the Collector have resiled from their earlier stand. The panchas had in their statements before the Collector stated -7- that panchanama was signed by them on 29th May, 2007. The panchanama was signed after they were informed that the notice is of "no confidence motion" meeting. They have in the cross examination stated that they have signed the panchanama and the place where the panchanama was prepared and house of the sarpanch, the distance is about 300 feet. They specifically stated that the notice was pasted but they have not read the same. The second panch witness also states that he has signed the panchanama. However, with regard to the contents thereof, he was cross examined and his cross examination reveals that the notice was not read by him. I have perused the statements and cross examination. Once, any omission in the statement of the panchas does not in any manner affect adversely their deposition on oath that they signed the panchanama, then, it is not possible to accede to the submission of Shri Shekhar that the petitioner had no notice of the proceedings. Once it is not disputed that the notice was pasted on the outer door and Rules and Act do not specify any mode of service, then, it is rightly concluded by the authorities that there is sufficient compliance in that behalf. In other words, the provision with -8- regard to the service of notice not being mandatory, there is sufficient compliance in the facts of this case when the notice was in deed pasted on the outer door. Once notice is so pasted and law not prohibiting the meeting being convened and conducted, in absence of the petitioner, then, the conclusion that the petitioner had failed to avail all the opportunities to attend and participate in the proceedings cannot be said to be vitiated by error apparent or perversity so as to call for interference in my writ jurisdiction. The petitioner has himself to blame if the meeting was convened and resolution passed in his absence. He failed to avail all the opportunities despite notice. It is in such circumstances I find that the entire panchayat has lost confidence in the petitioner that this is not a fit case for interference in my discretionary and equitable jurisdiction under Article 227 of the Constitution of India. Petition is, therefore, summarily dismissed. Ad-interim order stands vacated forthwith. No costs. (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.)