Nimba Rajaram Mali vs Collector, Jalgaon and others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1998 Supreme(Bom) 395

IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
N.P. Chapalgaonker Mr. B.H. Marlapalle, JJ.
Nimba Rajaram Mali ..... Petitioner.
Versus
Collector, Jalgaon others..... Respondents.
Writ Petition No. 2931 of 1998, decided on 23-7-1998.
Advocates appeared:
A.B. Naik, for petitioner.
K.G. Patil, A.G.P., for State.
N.H. Patil, for respondents.

Headnote:Section 35-Bombay Village Panchayat Sarpanch and Up- Sarpanch (No Confidence Motion) Rules, 1975, Rule 2-Notice of no confidence motion- Validity-Proper service Reasons given in notice alleged as vague-Since there is no pre-requisite of giving details of reasons in notice-Alleged vagueness of reasons does not invalidate notice and motion passed on such notice-Further non service of notice on one of 7 authorities does not invalidate motion passed.-It is, therefore, well-established that though the grounds of no confidence motion are required to be incorporated in the notice, the precision or specification or giving details of such reasons is not a pre-requisite of a No Confidence Motion. Viewed through this angle, the alleged vagueness in the reasons given in the notice of no confidence motion does not invalidate the notice as well as motion passed on such notice.
       The Tahsildar is required to send one copy each to the seven authorities. In the instant case, the Tahsildar has sent copies to six authorities and there does not appear to be any proof on record that a copy of the said notice dated 22.4.1998 was sent to the Chief Executive Officer, Z.P. Jalgaon and the copies to remaining six authorities have been sent as is evidence from the record. This lapse on the part of the Tahsildar would not amount to invalidation of the motion of no confidence, especially when other six authorities have been duly served and the observations of the Additional Commissioner in this regard deserve to be upheld.
       Section 35(3-B) and (3-C) Dispute under Section 35(3-B) of Act-No confidence motion against Sarpanch-Dispute decided by Additional Collector on basis of record Hence absence of notice to opposite party will not vitiate order rejecting dispute.- The Additional Collector, while deciding the dispute No. 37/1998 had called for record from the Tahsildar, pertaining to the meeting held on 27.4.1998 and the petitioner was duty heard. On perusal of the record, submitted by the Tahsildar, leaned Additional Collector, Jalgaon was of the view that it was not necessary to hear the opposite party while deciding the dispute raised by the petitioner. Therefore, he passed the impugned judgment, without issuing any notice to the opponents before him. No prejudice has been caused to the petitioner by the procedure followed by the Additional Collector and specially when the dispute was decided by considering the record submitted by the Tahsildar. There is nothing to show that findings recorded against the petitioner contrary to the record. In such circumstances, the decision of the Additional Collector to proceed and decide the dispute without issuing notice to the opposite party will not be fatal to the order passed by him rejecting the petitioners claim.
       Bombay Village Panchayats Sarpanch and Upsarpanch (No Confidence Motion) Rules, 1975
       Rule 2-No Confidence motion against Sarpanch-Notice for Grounds of motion to be given in notice but not necessarily its details or specification-In view of Rule 2(2) when notices given to six authorities out of seven as required under rule, motion is not in validated.

JUDGMENT - B.H. MARLAPALLE, J.:---Heard the learned Counsel for respective parties.

The Village Panchayat Shrisoli Pr. Nashirabad, tq. Dist. Jalgaon has 13 elected members and the petitioner came to be elected as Sarpanch. A Notice of No Confidence Motion was issued by 7 members of the said Village Panchayat on 2nd April, 1998 against the petitioner and submitted to the Tahsildar who convened a Special Meeting for the purpose of discussion regarding the said Notice on 27th April, 1998. In the said meeting, 11 out of the 13 elected members were present. The Motion of No Confidence came to be passed by majority of 7 v. 4. A dispute filed under section 35(3-B) of the Bombay Village Panchayat Act, 1958 came to be dismissed by the Additional Collector, Jalgaon. The said dispute was registered as dispute No. 37/98. Appeal No. 49/98 filed under section 53(3-C) before the Divisional Commissioner, Nasik Division, Nasik, against the order passed by the Additional Collector on 25-5-1998, also came to be dismissed by judgment and order dated 8-7-1998. Being aggrieved by Motion of No Confidence passed against the petitioner and the concurrent findings recorded by the Additional Collector and the Additional Commissioner, the petitioner had approached this Court with a prayer to quash and set aside the impugned resolution as well as the orders.

2.The grounds of challenge, as argued by the learned Counsel for the petitioner, are as under :

(a) The resolution of No Confidence passed against he petitioner was in violation of Rule 2(1) of the Bombay Village Panchayat Sarpanch and Upsarpanch (No Confidence Motion) Rules, 1975 (hereinafter referred to as No Confidence Motion Rules for short) inasmuch as Notice dated 22nd April, 1998 did not give specific reasons and the reasons given were vague;

(b) resolution passed was in violation of requirement of Rule 2(2) of the No Confidence Motion Rules inasmuch as a copy of the notice under sub-rule (1) was not sent to the Chief Executive Officer, Zilla Parishad, Jalgaon;

(c) two of the 13 members viz. Shri Vikram Ukhardu Bobade and Kashiram Ramdas Mali were not served the notice of Special Meeting convened by the Tahsildar, under Rule 2(3) of the No Confidence Motion Rules inasmuch as notice to Kashiram Ramdas Mali was served on his brother and the allegations that family members of Vikram Ukhardu Bobade did not accept the notice in his absence were-false and the Panchanama drawn of service of notice on Shri Vikram Ukhardu Bobade was suspicious and could not be relied upon as valid panchanama of service; and

(d) the Additional Collector disposed of the dispute at a preliminary stage and without issuing notice to the respondent and without considering the affidavits, filed by two persons, who were shown to be Panchas to the Panchanama drawn regarding service of notice on Shri Vikram Ukhardu Bobade.

3.In support of his argument on the first issue, the learned Counsel for the petitioner has relied upon the judgments of this Court in the following cases :

(i) (1965 Mh. L.J. Note 102)1, (sic). (ii) (Ganeshsinha Domansinha Hajari v. Commissioner, Nagpur Division)2, Nagpur reported in 1963 Mh. L.J. 569, (iii) (Dhrupad Bhagwan Sawale v. Collector, Buldhana)3, reported in 1986(1) Bom.C.R. 531 (iv) (Bandopant Shankarrao Mallewar v. State of Maharashtra)4, reported in 1997(1) Mh. L.J. 52.

Rule 2(1) of No Confidence Motion Rules reads as under :

"The members of the Panchayat who desire to move a Motion of No Confidence against the Sarpanch or the Upsarpanch shall give notice thereof in the form appended hereto to the Tahsildar of the taluka in which such Panchayat is functioning. Where the members desire to move the Motion of No Confidence against the Sarpanch as well as Upsarpanch, they shall give two separate notices."

4.The form of notice of Motion of No Confidence has been appended to the Rules and it provides for reasons in support of the No Confidence Motion to be incorporated in the notice. On perusal of the not

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