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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
BHARATI H. DANGRE, J.
Amol Pandurang Godbole – Appellant
Versus
The Collector, Nanded, Dist. Nanded – Respondent
Writ Petition No.14799 of 2021
Decided on : 12-01-2022
Maharashtra Village Panchayats Act, 1958 - Section 35, 12, 30, (4), (5) and (6), 21 - Maharashtra Village Panchayats (Amendment) Act, 2017 - Section 30A-1A - Income Tax Act, 1961 - Section 22 - Bihar Panchayat Raj Act, 2017 - Section 44(4) - Maharashtra Village Panchayat (Amendment) Act, 2020 - Sarpanch - Election - No-Confidence Motion Is Carried Out - Whether statute is mandatory or directory depend upon intention of legislature and not upon language in which intent is clothed - Whether a provision in statute is mandatory or directory will have to be discerned from intention of and language invoked - Whether an extraordinary meeting held in violation of requirement of four clear days is invalid, and answer to said question would depend upon whether provision is mandatory or directory - Whether it is a mandatory or directory provision - Whether provision in a statute is a directory or mandatory would lead to position of law being more or less settled to effect - Whether a statute is mandatory or directory depends upon intent of legislature and upon language in which intent is clothed - Whether provision is mandatory or directory and at times, prejudice caused is also a relevant consideration - Whether it was absolute or directory and even absence of penal provision for non-compliance did not every time lead to an inference that it was only directory – Held, Procedure contemplated for removal of a directly elected Sarpanch prescribed for his election directly from persons whose names are included in list of voters for a village under Section 12 of Act of 1959 - For his removal by bringing a motion of no-confidence, apart from motion of no-confidence being carried by a majority of not less than 3/4th of total number of members entitled to sit and vote in a meeting of panchayat, a ratification before special Gram Sabha by a secret ballot in presence and under Chairmanship of Officer appointed for purpose by Collector is a second safeguard - Amended subsection 1A of Section 35 contemplate ratification before special Gram Sabha and, therefore, learned Counsel for respondent apparently is missing important requirement of procedure prescribed under sub-section 1A of Section 35 - In wake of aforesaid discussion, by taking into account special provision introduced for removal of a directly elected Sarpanch by Maharashtra Village Panchayat (Amendment) Act, 2017 though provision has been subsequently rolled out under Maharashtra Village Panchayat (Amendment) Act, 2020, since petitioner was directly elected as a Sarpanch, procedure contemplated under sub-section 1A of Section 35 is only manner in which motion of no-confidence can be passed against him and in light of said provision, requirement of Rule 5 of Gram Sabha notice Rules 1959 is held to be mandatory and in absence of following said mandate of 'four clear days notice', ratification by resolution passed in special Gram Sabha meeting cannot be said to be in accordance with requirement of sub-section 1A of Section 35 as inserted by Maharashtra Village Panchayat (Amendment) Act, 2017 - For reasons recorded above, it is manifest that there was no proper adherence to rules holding meeting of Special Gram Sabha and in wake of consequences to be taken by petitioner, requirement of giving four days clear notice is held to be mandatory - In absence of ratification by Gram Sabha in Gram Sabha meeting, which was held without following mandate of four days clear notice, ratification, which form basis of No Confidence Motion being passed against petitioner, cannot sustain - Petition allowed.
JUDGMENT :
1. The petitioner, who is directly elected as Sarpanch from the persons whose names are included in the list of voters of village Balirampur, is aggrieved by no-confidence motion passed against him and by rejection of his appeal before the Collector, Nanded by order dated 13.12.2021.
The petitioner question the legality and validity of the resolution dated 03.09.2021 passed in the special meeting of the Village Panchayat, Balirampur and the resolution dated 16.09.2021 passed in the special meeting of the Gram Sabha under Section 35 of the Maharashtra Village Panchayats Act, 1958. Since the Collector upheld the resolutions of no-confidence passed against the petitioner and dismissed his appeal, the present writ petition is instituted.
2. The facts in background of the action impugned, can be briefly summarized as under : -
The petitioner is a directly elected Sarpanch of Village Panchayat, Balirampur, being elected in the general election of 2017 on a post reserved for Scheduled Caste. It is worth to mention that by the Maharashtra Village Panchayats (Amendment) Act, 2017 (Mah. Act No. LIV/2018), a novel provision in form of Section 30A-1A is introduced, providing for election of Sarpanch, who shall be elected by persons whose names are included in the list of voters for village under Section 12 and the petitioner came to be elected as a Sarpanch in a process undertaken simultaneously with the general elections of the Village Panchayat of Balirampur. The method of his election being newly introduced as per the amending Act of 2017, give rise to distinct questions, since not only his election but the manner in which the no-confidence motion is to be carried out against a directly elected Sarpanch is the question which arise for determination in the present petition.
3. While the petitioner was officiating as Sarpanch of Village Panchayat, Balirampur, which comprised of 18 members, on 30.08.2021, 14 members submitted a requisition to the Tahsildar, Nanded for initiating a no-confidence motion against the petitioner. A copy of the said requisition signed by 18 members is placed on record as Exh. A to the petition.
Upon a requisition being moved, the Tahsildar, convened a special meeting on 03.09.2021 after issuing notices on 30.08.2021 for the meeting to be held on 03.09.2021. The contention of the petitioner is to the effect that he was not served with the said notice and fraudulent panchanama is created to establish the service of notice upon him. It is the claim of the petitioner that the notice of meeting was not served upon him and some of the members supporting him could not remain present in the meeting. Consequently, in the meeting held on 03.09.2021, a resolution came to be passed by 14 vs. 00 against the petitioner and the Tahsildar declared that out of the 18 members eligible for voting, the 14 members who were present, voted in favour of the resolution of no-confidence and hence the motion being passed by 3/4th majority in terms of the Maharashtra Village Panchayats (Amendment) Act, 2017, the no-confidence motion was declared to have been granted. By concluding the special meeting held for the said purpose, the no-confidence resolution passed in the meeting was forwarded to the Collector.
4. Being aggrieved by the said action initiated against him in the special meeting dated 03.09.2021, the petitioner preferred an appeal before the Collector and the allegation levelled against the respondent no.1-Collector in the petition is, that without proceeding with the said appeal, the respondent no.1-Collector directed the Tahsildar to convey the special meeting of Gram Sabha vide his letter dated 06.09.2021, which is in utter violation of Government Resolution dated 15.01.2021. Pursuant to the direction issued, the respondent no. 2 convened the special meeting of the Gram Sabha on 16.09.2021 after issuing notice of the said meeting of special Gram Sabha on 12.09.2021.
As regards the said meeting the grievance raised in the
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