Mandatory requisition for moving NC motion against the CHMN or DC of Panchayat Samiti- Bombay High Court

 on 30 09 2020 on 04 10 J WP Stamp No.8394 20201 8 IN THE HIGH COURT OF JUDICATURE AT BOMBAYNAGPUR BENCH NAGPURWRIT PETITION STAMP No.8394 OF 20201. Sau. Pranaya W o Ganesh Gaddamwar Aged about 36 years Occ. Housewife R o Bhindan Taluka Nagbhid Distt. Chandrapur2. Arvind S o Nanaji Deshmukh Aged about 40 Years Occpation : Agriculturist R o Mangali Nagbhid Tah. Nagbhid District : Chandrapur : PETITIONERS...VERSUS...1. The Collector Chandrapur Collectorate Office Chandrapur.2. The Presiding Officer Sub Divisional Officer Bramhapuri Taluka Bramhapuri District Chandrapur.3. Prafulla S o Devidas Khaparde Aged about ___ years Occupation : Agriculturist R o Palasgaon Tah. Nagbhid District Chandrapur.4. Santosh Vitthal Radke Aged about 55 Years Occupation : Agriculturist R o Navegaon Pandav Tah. Nagbhid District Chandrapur.5. Shamsunder Somaji Purkam Aged about 55 Years Occupation : Agriculturist R o Wadhona Tah. Nagbhid District Chandrapur on 30 09 2020 on 04 10 J WP Stamp No.8394 20202 8 6. Sau. Ragini Digambar Gurpude Aged about 55 Years Occupation : Housewife R o Masali Tah. Nagbhid District Chandrapur.7. Sau. Sushma Gopal Khamdeve Aged about 35 years Occupation : Housewife R o Govindpur Tah. Nagbhid District Chandrapur8. Sau. Ranjana Wasudeo Pendam Aged about 40 Years Occupation : Housewife R o Talodi Tah. Nagbhid District Chandrapur.9. The Deputy District Election Officer Chandrapur. : RESPONDENTS= = = = = = = = = = = = = = = = = = = = = = = = = Shri Amit Band Advocate for Petitioners.Shri Shashibhushan Wahane Advocate for Respondent No.3.Shri A.A. Madiwale Assistant Government Pleader for Respondent Nos.1 2 & 9.Shri I.G. Meshram Advocate for Respondent Nos.4 5 6 7 & 8.= = = = = = = = = = = = = = = = = = = = = = = = = Coram : R.K. Deshpande And Pushpa V. Ganediwala JJ.Date : 25 th September 2020. ORAL JUDGMENT : of Section 72 of the Maharashtra ZillaParishads and Panchayat Samitis Act 1961 such requisitionhas to be delivered to the Collector or it is to be sent to him bythe registered post acknowledgment due. It is the Collectorunder sub sectiontherein who has to call meeting withinseven days from the date of requisition. However in thepresent case the requisition was not delivered personally tothe Collector nor was it sent to him by the registered postacknowledgment due. It is urged that the requisition wasdelivered in the present case to the Deputy Collector DeputyDistrict Election Officer Chandrapur on 2 7 2020 and themeeting was called on that basis by the Collector by issuingnotice dated 3 7 2020. on 30 09 2020 on 04 10 J WP Stamp No.8394 20204 8 5.The provision of sub sectionof Section 72 dealingwith motion of no confidence against Chairman or DeputyChairman of Panchayat Samiti being relevant is reproduced below :“72.Motion of no confidence againstChairman or Deputy Chairman ofPanchayat Samiti: …(2) The requisition for such specialmeeting shall be signed by not less thanone third of the total number of members whoare for the time being entitled to sit and vote atany meeting of the Panchayat Samiti and shallbe delivered to the Collector. The requisitionshall be signed by the requisitionists and shallbe made in such form and in such manner asmay be prescribed by the State Government.”6.Rule 3 of the Maharashtra Zilla Parishads PresidingAuthoritiesRules 1962 dealing withthe manner of making requisition is reproduced below :“3."Manner of making requisition.The requisition referred to in Rule 2 shallbe either delivered personally to the Collector on 30 09 2020 on 04 10 J WP Stamp No.8394 20205 8 by any one or more of the Councillors signingthe requisition or sent to him by registeredpost with acknowledgment due.(2)Where the requisition is deliveredpersonally a receipt stating the date on whichthe requisition is received by the Collector shallbe given to the person or persons deliveringthe requisition.”7.Sub sectionof Section 72 read with Rule 3 reproduced above makes it clear that the requisition isrequired to be delivered personally to the Collector or it isrequired to be sent by the registered post acknowledgmentdue. The issue is sensitive and hence these aspects are verysignificant. The object is to rule out the possibility of havingany dispute either over the delivery of requisition by theCouncillors of the Panchayat Samiti or a receipt of it by aperson who is not the Collector. The requirement in our view is mandatory as both the provisions use the word ‘shall’.According to us the ‘Collector’ as contemplated by theaforesaid provisions is a persona designata and in the absenceof any power of delegation the Collector has to personally on 30 09 2020 on 04 10 J WP Stamp No.8394 20206 8 receive the requisition by hand delivery or through registeredpost acknowledgment due. 8.The stand of the respondent No.1 Collector Chandrapur before us on the affidavit contained inPara 3 is reproduced below :"It is submitted that the respondent No.3to 8 had submitted a requisition for motion ofno confidence against the petitioners in theoffice of the answering respondent. It ispertinent to mention here that on 02.07.2020the Collector Chandrapur was on visit toBrahmapuri for Covid 19 review meeting.Therefore in the absence of the Collector Chandrapur the Deputy Collector DeputyDistrict Election Officer Chandrapur receivethe requisition of motion of no confidence andendorsed “please put as per rules”. The copyof requisition and the endorsement is annexedhereto and marked as Annexure R 1. Theendorsement of receipt of the requisition formotion of no confidence was dulyacknowledged and as per the rulescontemplated under Sub sectionofSection 72 of the Maharashtra Zilla Parishadand Panchayat Samitis Act 1971 the Collector Chandrapur issued notice dated 03.07.2020 forconveying the special meeting for consideringmotion of no confidence against the petitioner.The copy of the notice dated 3.7.2020 isannexed and marked as Annexure R 2.” on 30 09 2020 on 04 10 J WP Stamp No.8394 20207 8 9.It is an undisputed position that the motion ofno confidence was delivered to the Deputy Collector DeputyDistrict Election Officer Chandrapur who has made anendorsement "please put as per rules" the requisition is notdelivered to the Collector it was also not sent by registeredpost acknowledgment due. The calling of the meeting to pass‘no confidence’ motion is therefore in total contravention ofthe aforesaid mandatory provisions. The same therefore cannot be sustained.10.In the result the writ petition is allowed and thefollowing order is passed :(1)The motion of ‘no confidence’ passed againstthe petitioners in special meeting of PanchayhatSamiti Nabhid on 14 7 2020 is hereby quashed andset aside.(2)The petitioners are directed to be restored inthe office.11.Rule is made absolute in the aforesaid terms. Thereshall be no order as to costs. on 30 09 2020 on 04 10 J WP Stamp No.8394 20208 8 12.At this stage the learned counsels for therespondents submit that the liberty may be given to tenderrequisition in accordance with law. If it is permissible in law totender another requisition it is always open for therespondent to adopt such procedure and there is no need toexpress any opinion in respect of it in this petition. JUDGE JUDGEWadode 

Summary:  The mandatory compliances that had to be followed to move a motion of no confidence (NC) against the Chairman (CHMN) or Deputy Chairman (DC) of Panchayat Samiti were laid down in the recent judgment of Sau. Pranaya &amp; Anr. v. The Collector Chandrapur &amp; Ors. [WP. Stamp no. 8394 of 2020], dated 25th September 2020 by the Coram of Justice R.K. Deshpande and Justice Pushpa V. Ganediwala. The facts of the case mostly initiate with the test in this petition is to the ‘no-confidence motion which was passed in Special Meeting dated 14-7-2020 by the Panchayat Samiti Nagbhid, Taluka Nagbhid, District Chandrapur against the petitioners, who are the Chairman and the Deputy Chairman of the Panchayat Samiti, Nagbhid. In this judgement, it had been stated in sub-section (2) of Section 72 of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961, that such requisition has to be delivered to the Collector or it is to be sent to him by the registered post acknowledgement due.  It is the Collector under sub-section (3) therein who has to call a meeting within seven days from the date of requisition. However, in this present case the requisition was not delivered personally to the Collector nor was it sent to him by the registered post acknowledgement due. It is urged that the requisition was delivered in the present case, to the Deputy Collector/Deputy District Election Officer, Chandrapur on 2-7-2020 and the meeting was called on that basis by the Collector by issuing notice dated 3-7-2020, thus it was the issue of the law and fact which was disputed. Along with it, Rule 3 of the Maharashtra Zilla Parishads Presiding Authorities (No Confidence Motion) Rules, 1962 states the manner in which requisition should be made. Thus the established law states that Sub-section (2) of Section 72 read with Rule 3, reproduced above, makes it clear that the requisition is required to be delivered personally to the Collector or it is required to be sent by the registered post acknowledgement due. The issue is sensitive and hence these aspects are very significant. However, it had been held that “It is an undisputed position that the motion of no-confidence was delivered to the Deputy Collector/Deputy District Election Officer, Chandrapur who has made an endorsement “please put as per rules”, the requisition is not delivered to the Collector, and it was also not sent by registered post acknowledgement due. The calling of the meeting to pass ‘no-confidence motion is, therefore, in total contravention of the aforesaid mandatory provisions. The same, therefore, cannot be sustained.” As the learned judges had also stated that “In the result, the writ petition is allowed and the following order is passed : (1) The motion of ‘no-confidence’ passed against the petitioners in a special meeting of Panchayat Samiti, Nabhid on 14-7-2020, is hereby quashed and set aside. (2) The petitioners are directed to be restored in the office. The rule is made absolute in the aforesaid terms. There shall be no order as to costs.” Click here to read the judgement