Non-compliance of a circular provision may not vitiate proceedings, but non-service of notice regarding a motion of no-confidence can invalidate the entire proceedings.

JUDGMENT - R.M.S. KHANDEPARKAR, J.:---Heard the learned Advocates for the parties. Perused the records.

2. The petitioners challenge the judgment and order dated 17th October, 2000 passed by the Additional Commissioner, Nashik Division, Nashik in Appeal No. VP/A/84/2000. By the impugned judgment, the Additional Commissioner while allowing the appeal, had set aside the order dated 17th August, 2000 passed by the Additional Collector, Dhule in Gram Panchayat Dispute No. 18/2000 as well as the resolution of no confidence motion stated to have been passed in the meeting of Bhadane Gram Panchayat held on 10th July, 2000.

3. The facts in brief, relevant for the decision are that the notice relating to no confidence motion against the respondent No. 6 herein, who is Sarpanch of the said village Panchayat, was served upon the Tahsildar of Sakri by some of the members of the Panchayat on 5th July, 2000. Pursuant to the notice issued in respect of the said no confidence motion, the meeting was convened on 10th July, 2000 and the said motion was passed and thereby the respondent No. 6 was sought to be ousted from the office of the Sarpanch. The said proceedings in the meetings to consider the motion of no-confidence held on 10th July, 2000 were challenged by the respondent No. 6 by raising a dispute in that regard before the Collector, Dhule which came to be heard and rejected by the Additional Collector by its order dated 17th August, 2000 holding that the Notice of Motion of No-Confidence was properly served upon the respondent No. 6 as well as other members, who had failed to attend the meeting and secondly, that the Tahsildar had complied with the procedure prescribed under the relevant Act and the Rules made thereunder. Being aggrieved, the respondent No. 6 preferred an appeal under section 35(3)(c) of the Bombay Village Panchayats Act, 1958 (hereinafter called as "the said Act"), which was heard and disposed of by the impugned judgment and order by the Additional Commissioner, Nashik. Relying upon the circular dated 4th July, 1998, the Additional Commissioner has held that the Clause No. 22 of the said Circular being mandatory in nature and the same having not been complied with, the entire proceedings were bad in law and, therefore, the motion of no-confidence stated to have been passed against the respondent No. 6 was set aside. Hence, the present petition.

4. While assailing the impugned judgment, it was submitted by the learned Advocate for the petitioners that the non compliance of Clause No. 22 of the said Circular dated 4th July, 1998 is a mere irregularity in the recording of the proceedings of the meeting held to consider the motion of no-confidence and, therefore, non-compliance thereof cannot be held to vitiate the entire proceedings and the motion passed by majority in a democratic process. Placing reliance in the decision of the Division Bench of this Court in the matter of (Nimba Rajaram Mali v. Collector, Jalgaon and others)1, reported in 1999(1) Bom.C.R. (A.B.)546 it was submitted that unless it is shown that while passing the resolution of motion of no-confidence, there was flagrant violation of any of mandatory procedure laid down, such a resolution cannot be interfered with by the Court or statutory authorities adjudicating such disputes and considering the fact that Clause 22 of the circular being not mandatory in nature, the Additional Commissioner erred in setting aside the resolution on the basis of non-compliance of the provisions of the said Clause. Reliance was also placed in the decision of the Division Bench of this Court in the matter of (Hindurao Dnyanu Shirtode and another v. State of Maharashtra and others)2, reported in 1999(1) Bom.C.R. 153 : 1998(3) Mh.L.J. 622.

5. On the other hand, the learned Advocates appearing on behalf of the respondents, have submitted that the provisions contained in Clause 22 of the circular dated 4th July, 1998 are made with the intention to have proper record of the proceedi

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