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In the High Court of Bombay at Aurangabad
R.G. KETKAR, J.
Surekha s/o. Eshwar Jadhav
Versus
Nirmala w/o. Madhavrao Jadhav & Others
Writ Petition No. 353 of 2013
Decided On : 17-07-2013
Where notice of special meeting was not served to Sarpanch therefore resolution of no confidence motion against Sarpanch vitiated. - Under Section 35(1) of the Act, a motion of no confidence may be moved by not less than one-third of the total number of the members who are for the time being entitled to sit and vote at any meeting of the panchayat against the Sarpanch or the Up-Sarpanch after giving such notice thereof to the Tahsildar as may be prescribed. Under sub-section (3), the motion has to be carried out by a majority of not less than two-third of the total number of the members who are for the time being entitled to sit and vote at any meeting of the panchayat. The object for giving notice to the Sarpanch or Upa-Sarpanch is that he has a right to speak or otherwise to take part in the proceedings at the meeting, including right to vote.
The Sarpanch or Up-Sarpanch, as the case may be, while exercising such right, can impress upon the members who had moved a motion of no confidence (1/3rd members), as also, to the other members who have not moved that requisition. It is conceivable that the members who have moved requisition under sub-section (1) of Section 35 of the Act, and other members may change their opinion, if such right is exercised by the Sarpanch or Upa- Sarpanch, as the case may be. Right of each member of the house to speak is far more fundamental and that goes to the root of the essence of democratic functioning.
The weight of numbers is not an answer to a fundamental defect and the Court ought not to countenance a suppression of the right to speak by a supposed justification on the basis of the number who cast their lot in support of a resolution. The exclusion of members from addressing the Village Panchayat was a fundamental flaw in the proceedings which would invalidate the resolution of no confidence.
1. Heard Mr. V.D. Salunke, learned Counsel for the petitioner; Mr. S.K. Sawangikar, learned Counsel for respondent nos.1 to 5; Mr. G.G. Suryawanshi, learned Counsel for respondent nos.6 and 10, and Mr. K.M. Suryawanshi, learned AGP for respondent nos.7 to 9, at length.
2. Rule. The learned Counsel appearing for the respective respondents waive service. At the request and by consent of the parties, Rule is made returnable forthwith and the petition is taken up for final hearing.
3. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner has challenged the judgment and order dated 28th December 2012, passed by the Additional Collector, Nanded, in Appeal No. 39/2012. By that order, the Additional Collector dismissed the dispute application preferred by the petitioner and held that the special meeting convened by the Tahsildar, Mukhed, on 18th April 2012, for considering the no confidence motion against the petitioner herein, as a Sarpanch, was validly conducted as per Section 35 of the Maharashtra Village Panchayats Act, 1958 [For short, "the Act" ], read with the Bombay Village Panchayats Sarpanch and Up-Sarpanch (No Confidence Motion) Rules, 1975 [For short, "No Confidence Rules" ] and accordingly confirmed the proceedings of the special meeting.
4. The relevant and material facts that are necessary for the disposal of the present petition, briefly stated, are as under:
(a) The elections of Village Panchayat, Bhatapur (PD) (Taluka : Mukhed, District : Nanded) [For short, "Panchayat" ], were held in the year 2010. The petitioner and the respondent nos.1 to 6 are the elected members of the Panchayat. The petitioner was elected as Sarpanch. Respondent nos.1 to 5 moved requisition on 12th April 2012, to the Tahsildar, Mukhed, and requested to convene a special meeting for considering the motion of no confidence against the petitioner. By notice dated 12th April 2012, the Tahsildar, Mukhed, convened a special meeting of the Panchayat on 18th April 2012 at 2.00 p.m. It is the case of the petitioner, that the notice was served by the Tahsildar, through Talathi, only on respondent nos.1 to 5. No notice of meeting was served on the petitioner and the 6th respondent. In the absence of notice, the petitioner could not remain present for the meeting. Though 6th respondent was not served, she came to know about convening of the meeting and accordingly remained present in the meeting. The motion of no confidence was carried against the petitioner by five versus one. The case of the petitioner is that the motion of no confidence was carried out in gross violation of the mandatory provisions of Section 35(2) of the Act.
(b) The petitioner disputed the validity of the motion carried under Sub-Section (3B) of Section 35 of the Act, by referring the dispute to the Collector.
(c) By judgment and order dated 18th September 2012, the Additional Collector allowed the dispute and held that the special meeting convened on 18th April 2012 for considering the motion of no confidence was not validly convened as per Section 35 of the Act and No Confidence Rules. The Additional Collector declared those proceedings illegal and rescinded the resolution passed in the special meeting of 18th April 2012.
(d) Aggrieved by this decision, respondent no.1 herein preferred appeal under Section 35 (3C) of the Act before the Divisional Commissioner, Aurangabad. By judgment and order dated 5th November 2012, the Divisional Commissioner partly allowed the appeal and quashed and set aside the order of the Additional Collector and remitted the matter for fresh inquiry to the Additional Collector, Nanded. While remitting the matter to the Additional Collector, the Divisional Commissioner directed the Additional Collector to find out whether the notice of the special meeting was served on the petitioner herein, or not.
(e) After the remand, by the impugned order dated 28th December 2012, the Additional Collector dismissed the disput
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