The will of the majority must prevail in a democratic process, and the requirement of giving two separate notices for a motion of no confidence against the Sarpanch and Upasarpanch is mandatory, but the irregularity can be cured if there is no prejudice to the appellants.

1. Both these L.P.A.’s are being disposed of by this common Order as the issue involved is the same.

2. A few common facts may be set out which would be essential for the purpose of disposing the controversy as raised in these Appeals.

The appellants in both the Appeals and Respondent Nos. 4 to 9 are the elected members of Village Panchayat, Sawargaon, Tq-Manwat, Dist-Parbhani. The appellant in L.P.A. No.139 of 2008 was Upasarpanch and the appellant in L.P.A. No. 140 of 2008 was the Sarpanch. Respondent Nos.1 and 6 to 9 in both the L.P.A.’s moved a motion of no confidence against the Sarpanch and Upasarpanch on 18/10/2007. The grounds raised were the same. On 23/10/2007 the Tahasildar convened a special meeting for considering the no confidence motion. On the date of the motion, five elected members were present. It appears that both the Sarpanch and Upasarpanch did not participate. The motion, therefore, was passed as required by two-third majority.

3. The appellants preferred Appeals under Section 35 of the Bombay Village Panchayats Act, 1958 (hereinafter referred to as ’the Act’) to the Collector, Parbhani. It was their contention that there ought to have been two separate motions against the Sarpanch and Upasarpanch. In the instant case the motions were contrary to Rule 2 of the Bombay Village Panchayats Sarpanch and Up-Sarpanch (No confidence Motion) Rules, 1975, which hereinafter shall be referred to as ’No Confidence Rules’. On hearing the parties, however, the learned Collector was pleased to dismiss the Appeals. Aggrieved by the order, Appeals were preferred to the Divisional Commissioner. In Appeals, the Divisional Commissioner held that considering the provisions of Section 35 of the Act, read with Rule 2 of the No Confidence Rules, the common motion moved was bad in law and contrary to the provisions of the Act and Rules. The Appeals were consequently allowed and the motion of no confidence as passed, was set aside.

4. Against the said order, two Petitions came to be filed before this Court bearing Writ Petition No.2574 of 2008 and Writ Petition No.2743 of 2008. By a common Order dated 9th July, 2008 a learned Single Judge of this Court held, that there was no flagrant violation of the mandatory procedure for declaring the no confidence motion to be bad in law. The learned Judge observed that Sarpanch and Upasarpanch who lost majority ought to have respected the mandate. The learned Judge also observed that he did not find any prejudice caused to the respondents (Sarpanch and Upararpanch) and in view of that set aside the order of the Divisional Commissioner and allowed the Writ Petitions and declared that no confidence motion was validly passed in the meeting held on 23/10/2007 against the Sarpanch and Upasarpanch respectively. It is this order which is the subject matter of these Appeals before this Court.

5. On behalf of the appellants, learned counsel submits that the requirements of Rule 2 of the No Confidence Rules are mandatory. The learned Single Judge, it is submitted, did not address himself to the said aspect and consequently the order is liable to be set aside. To contend the Rules are mandatory, learned counsel placed reliance on Commissioner of Income Tax, Mumbai v/s. Anjum M.H. Ghaswala and others, (2002) Supreme Court Cases, 633. . On the other hand, on behalf of the contesting Respondents, the learned counsel contends that the motions were in terms of the No Confidence Rules. There were two separate motions of no confidence against Sarpanch and Upasarpanch. Though the motions included both Sarpanch and Upasarpanch when they were submitted, they were accepted separately for Sarpanch and Upasarpanch respectively. It is submitted that Rule 2 of the No Confidence Rules being procedural Rule, is directory and not mandatory. There has been substantial compliance and no prejudice has been occasioned to the appellants and on this count the Appeals are liable to be dismissed.

6. We have heard lea