Bombay High Court
Kishore Ramchandra Phalak
Versus
Vilas Damodar Mahajan
Decided On:

Headnote:Bombay Village Panchayats (Meetings) Rules, 1959

       Rule 28(1)-See Bombay Village Panchayats Sarpanch and Up-Sarpanch (No-Confidence Motion) Rules, 1975, Rule 2(3),

       Rule 2(3)-Bombay Village Panchayats (Meetings) Rules, 1959, Rule 28(l)-No confidence against sarpanch-Recording of voting either by voice vote or show of hands and by ballot by wishes of members, Rules 28(1)-Meeting Rules Applicable-A motion of no confidence cannot be equated with the motion of electing a sarpanch or up-sarpanch-Votes not recorded by secret ballot-Not Illegal.- 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 impugned in this writ petition. 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 coercion 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 penalized 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. Court cannot read something in the Rules which is not there. This would be re-reading the Rules which is not permissible.

       The procedure for the no confidence starts with a requisition to be signed by one third or more members of the panchayat. They have to openly come out against the existing Sarpanch and the motion is to be supported by requisite number of members. Rules of 1975 also require that the reasons for expressing the no confidence also to be given. In the notice of motion if the reasons are to be given and they are to be discussed in the meeting it is expected that the members would be fearless and would express whatever their opinion is about the functioning of the concerned office-bearers. For all these reasons. Court is not think that a motion of no-confidence can be equated with the motion of electing a Sarpanch or Up-Sarpanch. 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 a no-confidence on them. These were to different situations and were dealt by the State Government separately. The learned single Judge of the Rajasthan High Court has also taken a view in the case of Hukam Singh v. State of Rajasthan, reported in AIR 1984 Raj 119, that the method adopted by the Presiding Officer to record the votes by signatures for and against the vote of no-confidence does not vitiate the resolution. Observing thus, this Court held that the provision of subrule (2) is mandatory and by passing It would invalidate the very election. The observations will have to be understood in the context in which they are made. A specific provision made in rule was required to be considered to find out whether it is directory or mandatory, and it was found that the provision is beneficial to get the election process free and fair and therefore this Court held that the provision will have to be held to be to be mandatory. When the provision is not to made, it would not be proper on our part to hold that a particular procedure should have been applied by the Returning Officer in the absence of any such requirement by the Rules, It is always open for the State to consider the matter and reframe the Rules, but in the circumstances Court not feel that the impugned resolution can be assailed on the ground that the votes were not recorded by the secret ballot,

       For Citation 1997 (3) Mah LJ 27