1. Both these writ petitions are filed challenging the judgment and order passed by the Divisional Commissioner, Aurangabad, dated 23rd December, 2011, in Appeal/CR/115/2011, in which respondent Nos. 4 and 5 were the appellants. Respondent Nos. 4 and 5 are Sarpanch and Up-Sarpanch of Gram Panchayat of village Digras (Kh), Taluka Sailu, District Parbhani. The petitioners moved a common requisition notice for passing ‘No-Confidence-Motion’ against respondent Nos. 4 and 5. Learned Divisional Commissioner held that such common notice was illegal, and so, while allowing the appeal, he set aside the resolution passed by the petitioners in the meeting.

2. The only point that the learned counsel for the petitioners raised is that Rule 2 (1) of the Bombay Village Panchayats Sarpanch and Up-Sarpanch (No Confidence Motion) Rules, 1975, is directory and not mandatory.

3. Rule 2 of said Rules reads as under:-

“2. (1) The members of a panchayat who desire to more a motion of no-confidence against the Sarpanch or the Upa-Sarpanch shall give notice thereof in the form appended hereto to the tahsildar of the taluka in which such panchayat is functioning. Where the members desire to move the motion of no-confidence against the Sarpanch as well as the Upa-Sarpanch, they shall give two separate notices.

(2) The notice under sub-rule (1) shall be accompanied by nine additional copies thereof, and the Tahsildar shall send one copy to the Sarpanch, one to the Upa-Sarpanch and one each to the Zilla Parishad, the Panchayat Samiti, the Collector and the Commissioner. One copy shall also be given to the Secretary.

(2-A) The Tahsildar shall also publish the said notice by placing the same on the notice board at the office of the Panchayat and Tahsildar Office.

(2-B) Every notice under sub-rule (1), wherever it may be practicable, be served by delivering or tendering it to the Sarpanch or Upa-Sarpanch to whom it is addressed or, where such person cannot be found, by delivery or tendering it to any adult member of his family residing with him; and if no such adult member can be found or, where the Sarpanch, Upa-Sarpanch or such adult member, as the case may be, refuses to accept the notice, it shall be served by affixing it, in the presence of two witnesses, on the outer door or some other conspicuous part of the house in which such Sarpanch or Upa-Sarpanch ordinarily dwells. The notice served in this manner shall be deemed to the served or tendered or delivered to the concerned Sarpanch or Upa-Sarpanch.

(3) The Tahsildar shall, immediately on receipt of notice under sub-rule (1), satisfy himself that the notice has been given by not less than one-third of the total number of members (other than associate members) who are for the time being entitled to sit and vote at any meeting of the panchayat and then convene a special meeting for the purpose within seven days from the date of receipt of such notice.”

4. The learned counsel for the petitioners asserted that though the Rule clearly mentioned that when the members desired to move the motion against Sarpanch as well as Up-Sarpanch, they should give two separate notices, but the Rule is not mandatory, and so, his clients’ action of sending the joint notice was also permissible. He placed reliance on unreported order of Division Bench of this Court in the case of Shivaji Digambar Kapse v. The State of Maharashtra and others (Writ Petition No. 7790 of 2011), dated 21st October, 2011, in which certain observations are made. Learned counsel for the petitioners also placed reliance on the judgment of Supreme Court in the case of K. Narasimhiah v. H.C. Singri Gowda and others (AIR 1966 Supreme Court 330). He tried to argue that in view of these judgments, this Court should take a view that the Rule quoted above is not mandatory.

5. I am, however, not inclined to undertake such examination of the Rule, because this Court in the case of BudhiyaDayaram Jamunkar v. Additional Commissioner and others (2010(3