Rule 17 of the Bombay Village Panchayats (Meetings) Rules, 1959 is directory and not mandatory.

R.M. Savant, J.

1. The issue which at most times is central to a challenge to an order passed confirming the motion of no confidence against the Sarpanch/Upa-Sarpanch has been referred to a larger bench of this Court by the Division Bench of this Court (A.S. Oka and S.C. Gupte, JJ.) vide its order dated 24th January, 2014. The Division Bench has crystallized the said issue as under:--

"Whether failure to formally move and second a motion of no confidence as required by Rule 17 of the Bombay Village Panchayats (Meetings) Rules, 1959 would render the motion of no confidence carried by the requisite majority under section 35 of the Bombay Village Panchayats Act, 1958, invalid?"

The issue therefore revolves around whether Rule 17 of the Bombay Village Panchayats (Meetings-) Rules, 1959 is directory or mandatory in the context of a motion of no confidence passed under section 35(3) of the Bombay Village Panchayats Act, 1958 (for short "the BVP Act"). The genesis of the reference lies in the disagreement of the Division Bench of A.S. Oka and S.C. Gupte, JJ. With the judgment of another Division Bench of this Court (A.M. Khanwilkar and K.K. Tated, JJ.) in the matter of Vishnu Ramchandra Patil vs. Group Gram Panchayat, Kharivli and others, LPA No. 203 of 2013 [reported in 2013 (3) Mh.L.J. 133]. In the said context, it would be apposite to refer to the facts in brief which were before the Division of this Court in the case of Vishnu Ramchandra Patil vs. Group Gram Panchayat Kharivali.

In the said case the Minutes recorded by the Tahsildar in the Special Meeting held under section 35the Bombay Village Panchayats Act showed no resolution of no confidence was moved or seconded by any of the members of the Panchayat. The said Minutes further showed that in the meeting held by the Tahsildar the members who were present had participated in the discussion on the motion and after the persons, who were desirous of being heard, were heard, that the motion of no confidence came to be passed. The Division Bench framed two points that arose for its consideration which are as follows:--

(i) whether the procedure stipulated in Rule 17 of the Bombay Village Panchayats (Meetings) Rules, 1959, is a directory or mandatory procedure?

(ii) whether non-compliance of procedure stipulated in Rule 17 of the Meeting Rules would render the decision taken on the Motion of No Confidence passed in exercise of power under section 35 of the Act invalid, in law?

On the first point the Division Bench held that Rule 17 of the Bombay Village Panchayats (Meetings) Rules, 1959 (for short "the Meeting Rules) to be mandatory as the same was mandatory in relation to all other matters moving before the Panchayat. The Division Bench further held that there was nothing in Rule 17 to suggest that same must be construed as mandatory for General Meeting and directory for a meeting under section 35. The Division Bench mainly relying upon the Full Bench decision in the case of Viswas Pandurang Mokal vs. Group Gram Panchayat, Shihu and others, 2011 (3) Mh.L.J. 500, held that the mandatory nature of Rule 17 has already been answered by the Full Bench and is therefore no more res-integra. Hence the Division Bench in Vishnu Ramchandra Patil's case insofar as arriving at a conclusion that Rule 17 is mandatory solely relied upon the Full Bench judgment in Vishwas Pandurang Mokal's case.

2. It would now be necessary to see the factual matrix in the present case i.e. LPA No. 312 of 2013. In the present case the elections to the village Panchayat Theur, Tal. Haveli, Dist. Pune were held in the year 2010. The Appellant was elected as a Sarpanch of the said Gram Panchayat which has 17 members. The Respondent No. 7 along with 6 others moved a motion of no confidence against the Appellant by giving a notice under section 35 of the Bombay Village Panchayats Act to the Tahsildar calling upon the Tahsildar to requisite a meeting to consider the majority for the said purpose. The Tahsildar it seems d