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IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
Karnik D.G., J.
Indubai Vedu Khairnar .... Petitioner.
Versus
State of Maharashtra others.... Respondents.
Writ Petition No. 963 of 2002, decided on 17/24-4-2002.
Advocates appeared :
S.P. Deshmukh, for petitioner.
M.L. Dharashive A.G.P., for respondents 1 to 5.
P.S. Patil, for respondents 6 to 17.
C.S. Kulkarni, for respondents 18 to 21.
Bihar Village Panchayats Sarpanch and Upsarpanch (No Confidence Motion) Rules, 1975 - Rule 2(2) - Passing of no-confidence motion - Service of notice not to correct person - It was not a proper compliance of mandatory provision - Motion could not be discussed when mandatory provision of serving pre-motion notice is not followed. - Sub-rule (2) of Rule 2 of the Bombay Village Panchayat Sarpanch and Upsarpanch (No Confidence Motion) Rules, 1975 (for short No Confidence Motion Rules), lays down that notice should be served on the Sarpanch, Upsarpanch and other authorities. So far as the service of notice on the person against whom the motion of no confidence is moved, the provision must be held to be mandatory because the person has to have an opportunity of defending himself/herself. Under sub-section (2) of Section 35 Sarpanch or Upsarpanch against whom Notice of Motion of no confidence is moved has a right to speak. This right to speak cannot be exercised by the person if he has no notice of the meeting.
Bihar Village Panchayats Sarpanch and Upsarpanch (No Confidence Motion) Rules, 1975 - Rule 2(2) - Voting for no-confidence motion - 2/3rd members to cast vote to pass motion - 11 members were present in voting hall - One sick member was in ambulance - Tahsildar took her vote and came inside hall - It was not a proper casting of vote - She could be ascorted upto hall and then cast her vote - There was effective voting by only 11 members - Motion not passed.
Bombay Town Planning Act, 1954 - Section 35 (3-B), (3-C) - Validity of vote - No confidence motion - Carried out with requisite 2/3rd majority - Panchayat consisted of 21 members - 11 members were inside voting hall - One sick member was outside in ambulance - Tahsildar went outside hall - Took intention of sick member and decided motion - Held - The vote from ambulance was not proper casting - It is necessary to cast vote in hall where voting was being performed - Tahsildar should have brought the sick member inside hall and cast her vote - Quorum of 2/3rd majority was not complete.
Bombay Village Panchayats Sarpanch and Up-Sarpanch (No Confidence Motion) Rules, 1975 - Rule 2 - Service of notice - Upon no confidence motion - Peti- tioner denying notice - Though thumb- impression is available as notice is duly received - It is to be found out whether notice was received by any family member if not by petitioner - Finger print experts not contacted - It was duty of Collector to find out genuineness of thumb- impressions - Accordingly contention of petitioner regarding non-receipt of notice is proper. - When the petitioner has specifically denied receipt of notice, it was necessary to hold an enquiry as to whether the said thumb impression was of petitioner or anyone in his family. The collector ought to have sent the thumb impression to the finger print expert. Under sub- section (2) of Section 35 the affected person has a right to speak. This right cannot be used without a notice to him. Thus mandatory requirement of serving of notice on the person against whom no confidence motion is proposed was not followed, vitiating the motion of no confidence.
2. Rule made returnable forthwith by consent.
3. The village panchayat Chaitane consists of 17 elected members. The petitioners was elected as a Sarpanch by the elected members some time in the year 2000. The respondent No. 21 was elected as Upsarpanch at the same time. Respondents 6 to 21 are the other members of the village panchayat out of them respondents 18 to 20 and the Upsarpanch i.e. respondent No. 21 supported the petitioner. The respondents 1 to 4 are the State and Government authorities are represented by learned Assistant Government Pleader who supports the judgment of the Additional Commissioner confirming the judgment of the Additional Collector.
4. Shri N.Y. Pagare, respondent No. 8 and 8 other members of the Gram Panchayat, Chaitane gave a notice to the Tahsildar of motion of no confidence against the Sarpanch and separate notice was also issued for a notice of no confidence against the Upsarpanch. In pursuance of the said notice, the Tahsildar convened a special meeting of the village panchayat for considering the motion of no confidence against the Sarpanch and Upsarpanch on 13th September, 2001. The notice of the meeting dated 13th September, 2001 was issued on 10th September, 2001. In pursuance of the said notice, the meeting was held on 13th September, 2001. 11 out of 17 members personally attended the meeting. 12th member was ill and hospitalised and therefore did not personally attend the meeting. However, the said member was brought in an ambulance outside the meeting hall and it appears that though the said 12th member was not personally present in the meeting hall, her wishes were ascertained by the Tahsildar who was as presiding over the meeting. The Tahsildar held that the said 12th member also supported the motion of no confidence. All the 11 members who were in the meeting voted in favour of the motions of no confidence and both motions were therefore, declared to be passed by a vote of 12 verses Nil. The petitioner and respondents 18 to 21 were present in the meeting. According to the petitioner, notice was not served on the petitioner at all. It is alleged that notice was not served on respondent No. 21 personally but was served on a female member in her family. It is also contended that the notices were not served personally on respondents 18 and 20 but was served on his mother. The petitioner Sarpanch filed a dispute before the Collector under sub-section 3(B) of section 35 of the Bombay Village Panchayat Act, 1958 (for short the Act) challenging the Resolution of no confidence passed against him. Respondent No. 21 also filed similar dispute and Writ Petition No. 964/2002 arises out of the dispute filed by respondent No. 21.
5. The petitioner contended that the Resolution expressing no confidence against her was bad in law inter alia on the following ground:
(i) Notice of meeting dated 13th September, 2001 was not served on the petitioner at all. She was not aware of the meeting and hence could not remain present and thus did not have an opportunity to defend herself.
(ii) The notice of the meeting was not served on the respondent Nos. 18 and 21 in accordance with law inasmuch as the notice was not served on respondent Nos. 18 and 21 personally nor on the male members of their family nor by affixing on the doors but was delivered to the female members in the family.
(iii) The Resolution was not passed by requisite majority of 2/3rd of the total number of members. The total members of the village panchayat are 17 and therefore minimum 12 votes were necessary in favour of the Resolution. Only 11 members were present at the meeting. 12th member was not present and therefore, could not have voted. The Tahsildar erred in leaving the place of the meeting, going outside and ascertaining the wishes of respondent No. 15 who was not present but was brought outside the meeting hall in an ambulance.
6. All the grounds were rejected by the Collector. The petitioner there
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