1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2757 OF 2009 Shri Sadashiv Ramchandra Kumbhar .. Petitioner R/o Hiralge, Tq. Gadhinglaj Dist. Kolhapur V/s 1. The Divisional Commissioner, Pune Division, Pune. 2. The Additional Collector, Kolhapur. 3. Tahasildar, Gadhinglaj, Dist. Kolhapur and 7 others. .. Respondents Mr. Ravindra Ashok Lokhande, for the petitioner Mr. V. A. Sonpal, A.G. P. for Respondent Nos. 1 to 4 CORAM: MRS. MRIDULA BHATKAR, J. DATED: 13th March,, 2009 P. C. 1. This petition is directed against the order dated 16.2.2009 passed by the Divisional Commissioner, Pune, confirming the order of Additional Collector, Kolhapur dated 12.1.2009 holding the resolution of no confidence dated 29.9.2008 passed by the Members of Grampanchayat against the petitioner as valid and legal. 2. The learned Advocate appearing for the petitioner has 2 set the challenge mainly on the ground of non compliance of Bombay Village Panchayat (Meetings) Rules, 1959, specially Rule 17 (1)(b) and Rule 18 which provide that the Member who has given the notice of motion is required to move the motion and commence his speech by formal motion and to be followed by debate. The grievance was also made that notice was not served on the petitioner personally. In support of his submissions, the leaned Advocate relied on the following rulings. (1) Joseph Sequiera & others Vs. Menino D'souza & others, reported in 2008 (1) Bom CR 114 (2) Shri Ashok Krishnakant Mehta Vs. State of Maharashtra and others, reportedin 2000 (4) Bom. C.R. 724. 3. The learned AGP waived the service and while opposing the petition has relied upon the rules framed under Bombay Village Panchayat Act, 1958 are in exercise of powers under Section 176(2) of the said Act, which reads as under: 176 (2) “In particular but without prejudice to the generality of the foregoing provision, the State Government may make rules______ (vii) under Section 36, prescribing the time and place of sitting and the procedure at a meeting of the Panchayat. He submitted that the provisions of No Confidence Motion is incorporated in Section 35 and Section 35 is a code by itself. Hence, the procedure Section 36 is not attracted. 3 4. In the case of Joseph Sequeria (supra), challenge was on the ground of proper notice and discussions were not held as per Rules of Goa Village Panchayat (Meeting ) Rules, 1996, in the proceedings of no confidence motion. However, in the petition, in hand non observance of Bombay Village Panchayat (Meeting ) rules, 1959 is challenged. In the case of Ashok Krishnakant Mehta (Supra), the Hon'ble Division Bench of this Court has discussed the procedure to be followed under the Bombay Villege Panchayat (Meeting) Rules, 1959 at the time of no confidence motion. In that case the point of right to speak was discussed as it was rejected to the members when the no confidence was moved. In the petition in hand, right to speak was not denied to the petitioner or to any member of the Panchayat, who were present at the time of no confidence motion. As such the said case is not applicable to the present case. 5. Debate on any issue is the lifeline of the democratic process. However, at the motion of no confidence dated 29.9.2008, the members were asked to speak and they chose not to speak. That is also to be honoured. Not to speak is also a right and an expression may be vocal or may be through gesture. In this case, it appears from the resolution that the Sarpanch, against whom no confidence motion was moved, was given an opportunity to speak. It is unlike the case of Ashok Krishnakant Mehta (supra) in which the audience to the members was refused when they wanted to speak. 4 6. Further in Shital Sudhir Sonavale Vs. Group Grampanchayat, Vaghoshi & others, reported in 2003 (30 Mh. LJ 565, this Court, while dealing with a similar objection of following the procedure like the present one, has held that - “The question regarding validity of no confidence motion which was neither proposed nor seconded would be immaterial so long as the same was duly approved by 2/3rd majority and there is no need to look into general rules.” (Emphasis placed) In the present case, no confidence motion was passed by 6:2 votes i.e. more than requisite majority as per Sections 35 (3) of the Act. Section 35 of the Bombay Village Panchayats Act, 1958 is in respect of no confidence motion and lays down the procedure of motion of no confidence, extensively. As such, in view of this Judgement, I need not look into general rules namely Bombay Village Panchayat (Meeting ) Rules, 1959. 7. Moreover, the grievance of the petitioner such as service of notice, as discussed above, also does not have substance since he was present in the meeting. The notice was affixed on 23.9.2998 at his residence and the petitioner had attended the meeting on 29.9.2008 in which no confidence motion was moved. The presence of petitioner in the meeting shows a good service and no prejudice was caused to him. 8. In this view of the matter, I do not find any fault with the concurrent findings of the Divisional Commissioner, Pune, and the Additional Collector, Kolhapur holding the resolution of no confidence dated 29.9.2008 passed by the Members of 5 Grampanchayat against the petitioner as valid and legal and they need no interference by this Court. In the result, the petition stands dismissed in limine with no order as to costs. ( MRIDULA BHATKAR, J.) jpc/-