Ashok Krishnakant Mehta vs State of Maharashtra and others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2000 Supreme(Bom) 359

IN THE HIGH COURT OF BOMBAY
A.P. Shah Dr. D.Y. Chandrachud, JJ.
Shri Ashok Krishnakant Mehta.... Petitioner.
Versus
State of Maharashtra others... Respondents.
Writ Petition No. 1966 of 2000, decided on 3-5-2000.
Advocates appeared :
P.K. Dhakephalkar with Ms. Suhasini Mutalik, for the petitioner.
R.D. Rane, Addl. Govt. Pleader, for respondent Nos. 1 to 4.
C.G. Gavnekar, for respondent Nos. 6 19.

Headnote:Section 35 (2)-Motion for no-confidence against Sarpanch-Members of Panchayat who desired to speak not allowed to address the meeting-Panchayat comprising of 17 members of whom 16 were present at the meeting-Resolution of no-confidence passed by 9 voting in favour and none against-Exclusion of members from addressing the Village Panchayat was a fundamental flaw in the proceedings which resulted in invalidating the resolution of no-confidence as passed-Fresh meeting pursuant to the resolution directed to be held.-On 10.12.1999,5 members of the Village Panchayat gave a requisition notice to the Tahsildar stating that they proposed to move a resolution of no-confidence against the petitioner who was the Sarpanch of the Village Panchayat. The Tahsildar convened a special meeting at 11 a.m. on 17.12.1999 for the purpose of the consideration of the motion of no-confidence. On 17.12.1999 the meeting of the Village Panchayat was held. The Village Panchayat consisted of 17 members of whom 16 were present at the time. At the said meeting the Tahsildar who was the Presiding Officer declined permission to the members to speak and address the meeting, on the view that under the provisions of Section 35 (2) of the Bombay Village Panchayats Act, 1958, it was only the person against whom a motion of no-confidence is sought to be moved who could be permitted to speak at the meeting. The resolution of no confidence was passed by a vote of 9-0. Aggrieved by the resolution, the Sarpanch preferred a dispute under Section 35 (3-B) of the Act before the Collector. The Collector rejected the submission of the petitioner holding that (i) the requisition for no-confidence meeting had been moved by 5 out of 17 members and since under Section 35 (2), 1/5th of the total membership had to move the requisition, the requisition was in order, (ii) the resolution of no-confidence which had been passed by vote 9-0 could not be invalidated on the ground that the members of the Village Panchayat who desired to speak were prevented from addressing the meeting. In Appeal, under Section 35 (3-C) the Joint Commissioner, affirmed the view taken by the Collector. In writ petition challenging the orders which upheld the validity of the resolution of no-confidence as passed against the petitioner Sarpanch.
Held, that a resolution of no confidence operates to remove a person from his position as Sarpanch or Upasarpanch by expressing a lack of confidence in his ability to govern the affairs of the Village Panchayat. Bearing in mind the consequences of as well as the underlying basis for a resolution of no-confidence, the law has incorporated a requirement of giving the Sarpanch or the Upasarpanch, as the case may be, an opportunity of being heard before the members vote upon the resolution of no-confidence. The Tahsildar and the Authorities below erred in reaching into the requirement of giving an opportunity to the Sarpanch or Upasarpanch as the case may be a rule of exclusion that would debar any other person apart from those against whom the motion of no-confidence is being moved from speaking at the meeting. A rule of exclusion is neither expressly contained in the Statute nor does it follow by necessary implication. The object of permitting the members of the Village Panchayat to address the meeting of the Panchayat has a genesis which is distinct from the opportunity of being heard which is given to the Sarpanch or Upasarpanch against whom the resolution of no-confidence is being proposed. The authorities below had summarily rejected the submission made on behalf of the petitioner on the ground that by an overwhelming majority of 9 in the house of 17 the resolution came to be passed. The issue is something for more fundamental and that goes to the root or the essence of democratic functioning. The weight of numbers is not an answer to a fundamental defect such as this and the Court ought not to countenance a suppression of the right to speak by a supposed justification on the basis of the number who cast their lot in support of a resolution. The exclusion of members from addressing the Village Panchayat was a fundamental flaw in the proceedings which would invalidate the resolution of no-confidence. The importance of a free debate in the Panchc.yat cannot be under emphasised. It lies at the heart of democracy. The Village Panchayat is an institution for democratic self governance at the level of the village. Any effort to stifle debate must be looked upon by the law with disfavour. The resolution of no-confidence quashed. It would be open to the Tahsildar to reconvene it fresh meeting with reference to the requisition issued to him for holding a special meeting. The Tahsildar shall ensure that the meeting is held in accordance with the Rules and in compliance with the provisions of the law as interpreted.

JUDGMENT - Dr. D.Y. CHANDRACHUD, J.:---Rule, returnable forthwith. Respondents waive service. By consent, the petition is taken up for final hearing.

2.By this petition under Article 226 of the Constitution, the petitioner has sought to impugn a decision of the Collector of Raigad and a decision rendered in appeal by the Divisional Commissioner, Kokan Division, rejecting the challenge preferred by the petitioner to a resolution of no confidence passed in the Village Panchayat of Pali in District Raigad. The grievance of the petitioner is that during the course of the meeting in the Village Panchayat, person who wished to speak on the resolution of no confidence were prevented from doing so by the Presiding Officer on the ground that the Rules only provide that an opportunity be given to the person against whom the no confidence motion is moved. The issue involved is whether the exclusion of the members of the Village Panchayat from participation in the debate on a motion of no confidence would be destructive of the fundamental principles underlying democratic functioning so as to render the consequent resolution of no confidence motion invalid.

3.On 10-12-1999, 5 members of the Village Panchayat of Pali gave a requisition notice to the Tahsildar stating that they proposed to move a resolution of no confidence against the petitioner who was the Sarpanch of the Village Panchayat. Pursuant thereto, by a notice dated 13-12-1999, the Tahsildar, Sudhagad convened a special meeting at 11 a.m. on 17-12-1999 for the purpose of the consideration of the motion of no confidence. On 17-12-1999 the meeting of the Village Panchayat was held. The Village Panchayat of Pali consists of 17 members of whom 16 were present at the time. The minutes of the meeting are annexed at Exhibit-C to the writ petition and it is an admitted position that at the said meeting the Tahsildar who was the presiding officer declined permission to any other members apart from the petitioner to speak and address the meeting. The Tahsildar was of the view that under the provisions of section 35(2) of the Bombay Village Panchayat Act, 1958, it was only the person against whom a motion of no confidence is sought to be moved who could be permitted to speak at the meeting. Consequently, one member of the Panchayat Shri Dinesh Shobhalal Shah who rose to speak on the motion was denied permission. The petitioner spoke at the meeting but 6 members left the meeting in protest against the decision of the Tahsildar not to allow them to address the meeting. The resolution of no confidence was passed by a vote of 9-0. Aggrieved by the resolution, the petitioner preferred a dispute, being Dispute No. 36 of 1999 under the provisions of section 3-B of the Act before the Collector. The Collector rejected the submission of the petitioner holding that (i) the requisition for the no confidence meeting had been moved by 5 out of 17 members and since under section 35(2), 1/5th of the total membership had to move the requisition, the requisition was in order, (ii) the resolution of no confidence which had been passed a vote of 9-0 could not be invalidated on the ground that the members of the Village Panchayat who desired to speak were prevented from addressing the meeting. In appeal, the Joint Commissioner, Kokan Division, by his order dated 6-4-2000, affirmed the view taken by the Collector and it is against these orders which have upheld the validity of the resolution of no confidence that the petitioner has approached this Court.

4.The main issue that requires to be considered is whether a resolution of no confidence passed at a meeting during the course of which members constituting the Village Panchayat were not permitted to speak, would be invalid. The Presiding Officer took the view that it was only the Sarpanch against whom the resolution was sought to be passed who was entitled to speak at the meeting. Reference may be made to the provisions of sub-sections (1), (2) and (3) of sect

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