The legality of a no confidence motion and the required majority for its passage, as well as the court's discretion in interfering with an allegedly illegal election.

JUDGMENT :

1. Rule made returnable forthwith. Learned AGP waives notice for Respondent Nos. 1, 3 and 12; the learned counsel Mr. Godbole waives notice for Respondent Nos. 5 to 10. By consent of parties, petition is taken up for final disposal.

2. The challenge in this petition is to the judgment and order dated 13th September, 2019 passed by the Collector, Pune in Dispute Application No. 62 of 2019. By the impugned order, the learned Collector has confirmed the no confidence motion dated 16th July, 2019 carried against the Petitioner, and the consequent declaration dated 16th July, 2019 granted by the Tahsildar.

3. The brief facts are that on 9th April, 2018, the Petitioner was elected as a Upsarpanch of village Gram Panchayat Naigaon, Tahsil Haveli, district Pune. The Gram panchayat consists of nine members and the Petitioner secured 5 votes in a secret ballot in the polling, held on 9th April, 2018 for election of Upsarpanch. Subsequently, the Respondent Nos. 4 to 11 moved a motion of no confidence against the Petitioner, which was considered in a meeting dated 16th July, 2019. The said motion was passed by a majority of 6 votes against 3 and consequently, the Petitioner ceased to be the Upsarpanch of the said village. The Petitioner unsuccessfully challenged the same before the Collector. Hence, this petition.

4. I have heard the learned counsel for the parties. Perused record.

5. It is submitted by the learned counsel for the Petitioner that one of the members Sau. Sunita Gaikwad (Respondent No. 8) was disqualified from being a member of the panchayat, as she had failed to produce a caste validity certificate within time, as prescribed. She was belonging to a Scheduled Tribe category, and the learned counsel points out that in fact the Caste Scrutiny Committee had rejected her claim. It is submitted that once the caste validity certificate is not produced within time, the disqualification is automatic. The learned counsel points out that in the voting by show of hands, admittedly, Respondent No. 8 had voted in favour of the no confidence motion.

6. It is submitted that if the vote of Respondent No. 8 is excluded, then the no confidence motion, which was carried by 5 votes against 8 votes (inasmuch as Respondent No. 8 was disqualified from being a member and from participating in the voting), cannot be said to have been carried by 2/3rd majority, as required by law. For this purpose, reliance is placed on the decision of the Supreme Court in the case of Ganesh Gurkule Vs. Tahsildar, Sinnar & Ors., (2019) 3 SCC 211. He therefore, submits that the no confidence motion has not been legally carried and the learned Collector was in error in refusing to set it aside.

7. Mr. Godbole, the learned counsel for Respondent Nos. 5 to 10 in all fairness did not dispute that Respondent No. 8 had voted in favour of the no confidence motion. However, it is submitted that Respondent No. 8 had voted in favour of the Petitioner when she was elected as Upsarpanch on 9.4.2018. The learned counsel points out that the Petitioner was elected as Upsarpanch by a margin of one vote, as she had secured 5 votes as against 4 votes, secured by her rival. It is submitted that if the vote of Respondent No. 8 is excluded as she was disqualified, the very election of the Petitioner as Upsarpanch becomes illegal. The learned counsel submitted that this Court would not issue a writ or set aside an order (even assuming it to be illegal), if it has the effect of reviving or affirming, an otherwise invalid order or a situation. In short, it is submitted that even assuming that the no confidence motion was not carried with the required 2/3rd majority, still this Court should refrain from interfering with the impugned order, as it will have the effect of restoring the Petitioner as Upsarpanch, when her election as a Upsarpanch is illegal, as both Petitioner and her rival would have secured 4 votes (after exclusion of vote of Respondent No. 8). It is submitted that Responde