Shri Viswas Pandurang Mokal vs Group Gram Panchayat Shihu

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2011 Supreme(Bom) 482

2011 (3) ALL MR 778
High Court of Judicature at Bombay
THE HONOURABLE MR. JUSTICE D.K. DESHMUKH, THE HONOURABLE MR. JUSTICE ANOOP V. MOHTA & THE HONOURABLE MR. JUSTICE RANJIT MORE
Shri Viswas Pandurang Mokal & Others
Versus
Group Gram Panchayat Shihu & Others
WRIT PETITION NO.4601 OF 2010 WITH WRIT PETITION NO.7854 OF 2010 WITH WRIT PETITION NO.7899 OF 2010
Decided on : 21-04-2011

Advocates appeared:
For the Petitioners:C.G. Gavnekar with G.S. Hiranandani, Suhas Deokar, Subhash Patil, Ashutosh C. Gavnekar, M.M. Sathye, Advocates. For the Respondents: R1, R3 & R5 to R10, Ms. Ganjan Shah i/b S.A. Sawant, S.R. Nargolkar, Addl.G.P. with R.M. Patne, AGP & S.N. Bhosale, AGP.

Headnote:Bombay Village Panchayats Act, 1958 - Section 35(1)-Bombay Village Panchayats (Meeting Rules), 1959, Rule 17-No confidence motion-Meeting for considering of-Called under Section 35 of Act-Provisions of Rule 17 of Rules will apply in such a meeting subject to there being any specific contrary provision in Act or in No Confidence Motion Rules.-The motion of no confidence is actually moved in the meeting of the village panchayat and as there is no contrary provision to be found either in the Act or in the No Confidence Motion Rules, in relation to moving of a motion in a meeting of the village panchayat Rule 17 of the Meeting Rules which makes such a provision will apply. In the Meeting Rules there is a provision made for calling a special meeting of village panchayat because a requisition is received from members. Therefore, concept of convening a special meeting of the village panchayat was a consequence of requisition received from the members is to be found in the Meeting Rules itself and therefore, all those provisions contained in the Meeting Rules in relation to convening and holding of a special meeting of the village panchayat will apply to the special meeting convened under Section 35, subject to there being any specific contrary provision in the Act or in the No Confidence Motion Rules.
Bombay Village Panchayats Act, 1958 - Section 35(1)-Bombay Village Panchayats Sarpanch and Up Sarpanch (Motion of No Confidence) Rules, 1975, Rule 2-Requisition for meeting-Submitting of to Tahsildar-Purpose of-To call upon him to convene a special meeting of village panchayat-For moving a motion of no confidence against Sarpanch or Up-Sarpanch.-The purpose of submitting the requisition to the Tahsildar is to call upon him to convene a special meeting of the village panchayat so that in that meeting a motion of no confidence can be moved against the Sarpanch or Up-Sarpanch.
Bombay Village Panchayats Act, 1958 - Section 35(3-B), (3-D)-Power of Tahsildar-To convene a special meeting for no confidence motion-No power conferred by Section 35 of Act on Collector hearing dispute referred to him to issue any direction to Tahsildar for convening a fresh special meeting on basis of same requisition.-No power conferred by Section 35 on the Collector who hears the dispute referred to him by Sarpanch or Up-Sarpanch to issue any direction to the Tahsildar for convening a fresh special meeting on the basis of the same requisition. The power of the Collector is confined to making a declaration whether the motion is validly carried or not. In case the Collector decides that the motion is not validly carried, the Sarpanch or Up-Sarpanch concerned continues in the office. In that situation, it is for the Tahsildar to consider whether he is competent to convene a fresh meeting on the basis of the same requisition or not, and it is at that juncture it is for the Tahsildar to consider whether he can call a meeting after expiry of a period of seven days? Whether the requisition received by him is extinguished or not? But the Collector exercising his powers under Section 3-B does not have the power to issue any direction to the Tahsildar in relation to convening of a fresh meeting.

JUDGMENT :-

D.K. DESHMUKH, J.

1. The question of law which has been referred to us in Writ Petition No.4601 of 2001 is “Whether the provisions of the Meeting Rules and in particular Rule 17 thereof, will apply to the meeting convened specifically for considering the motion of no confidence moved in accordance with sub section 1 of section 35 of the said Act and the No Confidence Motion Rules?”

2. In Writ Petitions Nos.7854 of 2010 and 7899 of 2010, the issue or the question of law which has been referred to us is “Whether in proceedings under Sub-Section 3-B of section 35 of the Bombay Village Panchayats Act, 1958 a direction can lawfully be issued for convening a new meeting after expiry of the period of seven days provided under sub-section 2 of section 35 of the said Act on the basis of a motion of no confidence which is held to be illegal?”.

3. Both questions referred to us relate to the provisions of the Bombay Village Panchayats Act in general and provisions of Section 35 in particular and therefore both these questions can be conveniently decided by a common judgment.

4. The facts of the case are that the Petitioner in Writ Petition No.4601 of 2010 was elected as a Sarpanch of the first respondent village panchayat on 2nd March 2009. Respondent nos.2, 3 and 5 to 9 served a notice for moving a no confidence motion against the petitioner. On the basis of the requisition, a meeting was convened on 22nd January 2010 and the motion of no confidence was passed against the petitioner.

5. The petitioner filed a dispute before the Collector in accordance with sub section (3B) of section 35 of the Bombay Village Panchayat Act, 1958 (hereinafter referred to as the said Act). A contention was raised by the petitioner in the said application that compliance with the requirements of Bombay Village Panchayats Sarpanch and Upsarpanch (No Confidence Motion) Rules, 1975 (hereinafter referred to as the No Confidence Motion Rules) was not made. In the dispute application, it was contended that in the meeting held on 22nd January 2010, a motion of no confidence was not moved by any member as required by the rules framed for holding the meeting. A contention raised in the dispute application filed by the petitioner appears to be that there was no compliance with the requirements of Bombay Village Panchayats (Meeting) Rules, 1959 (hereinafter referred to as the Meeting Rules).

6. In short, a contention was raised that as required by the provisions of the Meeting Rules, the motion was not moved by any member and was not seconded by any member. After adjudication, the Collector upheld the validity of the no confidence motion. An appeal was preferred by the petitioner before the Additional Commissioner. In the appeal, the same contention was raised before the Additional Commissioner. It was contended that as the motion of no confidence was not at all moved and was not seconded, the same could not have been considered. The learned Additional Commissioner rejected the said contention by holding that the petitioner was given an opportunity to address the meeting and there was a discussion on the motion of no confidence in the meeting. The Additional Commissioner held that eight out of ten members have voted in favour of the motion of no confidence and therefore, the petitioner has lost the support of majority.

7. Both these orders were challenged before this Court. When Writ Petition came up before the learned single Judge of this Court (A.S.Oka, J.), on behalf of the Petitioner it was claimed that the Meeting Rules apply to the special meeting called for consideration of no confidence motion against Sarpanch and as the provisions of those Rules were not followed in holding that meting, the Resolution is invalid. The Petitioner relied on several judgments of the learned single Judges of this court as also a judgment of the Division Bench of this Court.

8. On the other hand, on behalf of the Respondents it was contended that to a meeting specif

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