Kishore s/o Ramchandra Phalak vs Vilas s/o Damodar Mahajan and others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1997 Supreme(Bom) 59

IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
N.P. Chapalgaonker R.G. Deshpande, JJ.
Kishore s/o Ramchandra Phalak ..... Petitioner.
Versus
Vilas s/o Damodar Mahajan others...... Respondents.
Writ Petition No. 182 of 1997, decided on 30-1-1997.
Advocates appeared :
S.R. Barlinge, for petitioner.
S.A. Kulkarni, for respondent Nos. 1 to 9.
V.D. Sapkal, A.G.P. for respondent Nos. 10 12.

Headnote:Sections 33(2) and 176- The Bombay Village Panchayats (Sarpanch and Upsarpanch) Election Rules, 1964, Rule 10(2)-(No-confidence Motion) Rules, 1975, Rule 3-(Meeting) Rules, 1959, Rule 29(1)-Election-Procedure for-General procedure has to be followed for the business of Panchayats meetings which requires that voting shall be recorded either by voice vote or by show of hands to elect their office bearers and a motion of no-confidence stands on a different footing for which State has to lay down particular procedure.-In exercise of the powers under Section 176 read with Section 33(2) of the Bombay Village Panchayats Act, 1958 (hereinafter referred to as the Act for the purpose~ of brevity), State Government has framed two different sets of Rules, One governing the election of the Sarpanch and Upsarpanch, established under the Act and the other governing the motion of no-confidence against those functionaries. The first set of the Rules of 1964 specifically provides that voting shall be by show of hands, if, however, any member present in the meeting so demands the voting shall be by ballot. This specific provision in Rule 10(2) of the Bombay Village Panchayats (Sarpanch and Upsarpanch) Elections Rules, 1964, makes it imperative for the Presiding Authority to record the votes by secret ballot in case any member of the Panchayat so demands. Such a provision is not therein the Bombay Village Panchayat (Sarpanch and Upsarpanch) (No-confidence Motion) Rule, 1975. In fact, those Rules do not provide for any special procedure in respect of recording of the votes of a motion expressing no- confidence in the elected office bearers of the Village panchayat. When no special procedure is prescribed, the general procedure prescribed for the meetings would be applicable. Rule 29(1) of the Bombay Village Panchayats (Meeting) Rules, 1959 lays down that the votes shall ordinarily be taken by word of mouth or by show of hands, but, if, majority of the members decide to be taken by ballot. It, therefore, follows that the general procedure laid down for the business of the Panchayat meetings requires that the voting shall be recorded either by voice vote or by show of hands and if, the majority of the members so decide, then only by ballot.
       It is not the case of the parties before this Court that there was a majority decision to record the votes by ballot on a motion expressing no-confidence on the Sarpanch, impugned in this writ petition.
       Sections 33(2) and 176-Bombay Village Panchayats (Sarpanch and Upsarpanch) (No-confidence Motion) Rules, 1975-No-confidence motion procedure requires noting shall be recorded either by voice note or show of hands-Nan-recording of notes by ballet by presiding officer is not illegal.- There is specific provisions in Rule 10(2) Bombay Village Panchayat (Sarpanch and Upsarpanch) Elections Rules, 1964 which makes it imperative for the Presiding Authority to record the votes by secret ballot in case any member of the Panchayat so demands. Such a provision is not there in the 1975 Rules. In fact, those Rules do not provide for any special procedure in respect of recording of the votes of a motion expressing no-confidence on the elected office bearers of the Village Panchayat. When no special procedure is prescribed, the general procedure prescribed for the meetings would be applicable. Rule 29(1) of the Bombay Village Panchayats (Meetings) Rules, 1959, lays down that the votes shall ordinarily be take by word of mouth or by show of hands, but, if, majority of the members so decide then only by ballot. It, therefore, follows that the general procedure laid down for the business of the Panchayat meetings requires that the voting shall be recorded either by voice vote or by show of hands and if, the majority of the members so decide, then only by ballot. In the instant case, there was no majority decision to record votes by ballot on motion of expressing no confidence on the Sarpanch and hence, non-recording of votes by ballots by Presiding Officer is not illegal.
       A motion of no-confidence cannot be equated with the motion of electing a Sarpanch or a Upsarpanch. The exercise of the powers to frame the Rules by the State Government cannot be assailed on the ground that the State has chosen to frame different Rules, firstly, for electing a Sarpanch and Up sarpanch and secondly, for expressing no-confidence in them. These were two different situations and were dealt by the State Government separately.

JUDGMENT - N.P. CHAPALGAONKER, J. :---Heard Shri S.R. Barlinge, Advocate for the petitioner, Shri S.A. Kulkarni, Advocate for the respondent Nos. 1 to 9 and Shri V.D. Sapkal, A.G.P. for respondent Nos. 10 and 12. Respondent No. 11 is deleted with the leave of the Court.

2.Petition raises a short question whether it is imperative on the part of the Presiding Officer to record the votes by ballot on a motion expressing no confidence of the Sarpanch under the Bombay Village Panchayats Act, 1958 in the absence of statutory rule to that effect.

3.In exercise of the powers under section 176 r/w section 33(2) of the Bombay Village Panchayats Act, 1958 (hereinafter referred to as 'the Act' for the purpose of brevity), State Government has framed two different sets of Rules, one governing the election of the Sarpanch and Up-Sarpanch, established under the Act and the other governing the motion of no confidence against those functionaries. The first set of the Rules of 1964 specifically provides that voting shall be by show of hands, if, however, any member present in the meeting so demands the voting shall be by ballot. This specific provision in Rule 10(2) of the Bombay Village Panchayat (Sarpanch and Up-Sarpanch) Elections, Rules, 1964, makes it imperative for the Presiding Authority to record the votes by secret ballot in case any member of the Panchayat so demands. Such a provision is not there in the Bombay Village Panchayat Sarpanch and Up-Sarpanch (No Confidence Motion) Rules, 1975. In fact, those Rules do not provide for any special procedure in respect of recording of the votes of a motion expressing no confidence on the elected office bearers of the Village Panchayat. When no special procedure is prescribed, the general procedure prescribed for the meetings would be applicable. Rule 29(1) of the Bombay Village Panchayats (Meeting) Rules, 1959 lays down that the votes shall ordinarily be taken by word of mouth or by show of hands, but if majority of the members decide to be taken by ballot. It, therefore, follows that the general procedure laid down for the business of the panchayat meetings requires that the voting shall be recorded either by voice vote or by show of hands and if the majority of the members so decide, then only by ballot. It is not the case of the parties before us that there was a majority decision to record the votes by ballot on a motion expressing no confidence on the Sarpanch, impuged in this writ petition.

4.Shri Barlinge, learned Counsel for the petitioner submits that the purpose for providing the secret ballot while electing the Sarpanch and Up-Sarpanch, if any of the members so demands, is to ensure free exercise of the franchise without any coersion or pressure. The same is expected about the voting while expressing a no confidence and, therefore, to ensure that members vote freely, the same provision should be read in the Rules in absence of any specific provision contrary to the same. The first proposition is not acceptable on the face of it for the reason that election of Sarpanch is a normal and obligatory function of the members of the panchayat at the beginning of their term wherein they should be free to elect the office bearers of their choice and if any member is apprehensive that he may be penalised or prized for exercising his franchise in a particular way, he can ask for a secret ballot. A motion of no confidence stands on a different footing. It is true that often the undemocratic methods are used to influence the voting in one way or the other. But it is for the Legislature and if the powers are so delegated then for the State to lay down as to what particular procedure should be followed on a particular occasion. We cannot read something in the Rules which is not there. This would be re-reading the Rules which is not permissible.

5.The Division Bench of the Andhra Pradesh High Court considered the submission, which is required to be dealt with by us, in the case of (P. Raghava Reddi)1,

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