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High Court of Judicature at Bombay
S. SHAH, R.M. SAVANT & M.S. SONAK, JJ.
Tatyasaheb Ramchandra Kale - Appellant
Versus
Navnath Tukaram Kakde & Others - Respondents
Letters Patent Appeal No. 312 of 2013 In Writ Petition No. 6967 of 2012
Decided on: 09-10-2014
Bombay Village Panchayat Act, 1958 - Section 35(3) Bombay Village Panchayats Rules, 1959, Rule 17 Applicability of Section 35(3). - Provision of Section 35(3) of Act applies to a meeting held for passing of a motion of no confidence. The applicability of Section 44(3) of the BVP Act was sought to be questioned on behalf of the Appellant and the State on the ground that the said provision applies only when the proceedings of the Panchayat are conducted when there is a vacancy in the Panchayat and would therefore not apply to a meeting held for passing of a motion of no confidence. In support of the said contention reliance was sought to be placed on the heading of the said Section which is to the following effect; "Vacancy not to affect proceedings of Panchayat".
In so far as headings being used as a tool for interpretation of a provision is concerned. It is well-settled that they cannot control the plain words of the provision, they also cannot be referred to for the purpose of construing the provision when the words used in the provision are clear and unambiguous nor can they be used for cutting down the plain meaning of the words in the provision when only in the case of ambiguity or doubt the heading or subheading may be referred to as an aid in construing the provision.
In so far as sub-section (3) of Section 44 of the BVP Act is concerned, the said sub-section (3) can be said to be an exception to sub-sections (1) and (2) of Section 44 of the BVP Act. The language of sub-section (3) makes it very clear that it applies to all acts or proceedings of the Panchayat, and is not restricted to the meeting of the Panchayat held when there is a vacancy. Since the words are very clear and ambiguous, it is not necessary to take recourse to the heading for interpretation of the said provision. The said provision would therefore apply to a meeting held for passing of a motion of no confidence. Resultantly, the test whether the defect or irregularity affects the merits of the case would come into play.
It is further required to be noted that the provision akin to Section 44(3) of the BVP Act has been recognized as a feature of modem legislations. The said provision is inserted to put beyond challenge the defect of constitution of the statutory body and defects of procedure which have not led to any substantial prejudice.
In the said case Section 13(4) and Rule 33 required publication of Outline Development Plan as approved by the Government in the Official Gazette. What was published in the Gazette was a notice with Outline Development Plan as approved by the Government was available for the inspection at the office of the Planning Authority during office hours. The Apex Court held that on a proper construction of Section 13(4) the publication complied with its provisions and that even if there was any defect it was cured by Section 76-J. The said Section 44(3) therefore cleanses the proceedings of any defect if the same do not affect the merits of the case.
Rule 17 of the Meeting Rules is directory however on the touchstone of Section 44(3) of the BVP Act and having regard to the fact that the resolution has been passed by a 2/3rd majority, any defect in the procedure relating to passing of the said resolution can be said to be cured, and therefore, on the application of Section 44(3) of the BVP Act, the resolution cannot be said to be vitiated on account of any infirmity in the proceedings.
Bombay Village Panchayat Act, 1958 - Section 35(3) Bombay Village Panchayats Rules, 1959, Rule 17 No confidence motion against Sarpanch. - If requirements under Section 35(3) of Act are fulfilled then mere non-compliance of Rule 17, would be no ground to invalidate no confidence motion. The object of the BVP Act is to establish village panchayats so that they function as units of local self government. The Act can be said to reflect the policy of the State in so far as decentralization of powers and vesting them in the local self governments is concerned. The Sarpanch and Upa-Sarpanch can be said to be pivotal to the functioning of the Gram Panchayat, as the executive power is vested in the Sarpanch who is made directly responsible for the due fulfillment of the duties imposed upon the Panchayat by or under the Act. It is considering the preeminent position that the Sarpanch and Upa-Sarpanch are said to occupy that the provisions have been made as regards their election, resignation, vacation of the office of the Sarpanch and Upa-Sarpanch by a motion of no confidence passed by the Panchayat. The idea as indicated above is to lend stability to the office of the Sarpanch and Upa-Sarpanch so that the administration at the village level does not suffer. However, if the Sarpanch or Upa Sarpanch has lost the mandate of the house, his removal is circumscribed by the requirement of the motion of no confidence being moved by 1/3rd of the members and passed by 2/3rd of the members, then as a democratic practice he would have to vacate the office. Hence if on account of a formal defect viz. that the motion is not proposed or seconded though passed by 2/3rd majority, if the motion is to be termed as invalid, the same would result in nullifying and defeating provision in the BVP Act which provides the manner in which a Sarpanch can be removed. The effect of such invalidation would be that the smooth functioning of the elected body would be affected. The consequence would be that though the requirements of the Act have been fulfilled, the proceedings would be held to be invalid on account of the non-compliance of Rule 17, which is part of subordinate legislation, in the matter of proposing and seconding of the motion. A provision contained in a subordinate legislation cannot prevail, if the requirement of the main enactment i.e. the Act has been fulfilled. In such an eventuality the requirement of the subordinate legislation would have to give way to the Act and hence the requirement of Rule 17 in the matter of proposing and seconding the motion can only be said to be directory. For the same reason Rule 39 which is part of the same Meeting Rules would have no impact on the conclusion that Rule 17 is directory and not mandatory.
In terms of Section 38 of the BVP Act, the executive power of the Panchayat is vested in the Sarpanch and it is the Sarpanch who is made responsible for the acts of the Panchayat. Hence if an interpretation which results in the Sarpanch being continued, which Sarpanch has lost the mandate of the house, the same would result in acting against the very tenets of democracy. It is required to be borne in mind that the very essence of democracy and fundamental to it, is that a person who has lost the mandate cannot be allowed to continue. Hence though Rule 17 may not have been strictly complied with but the resolution having been passed by 2/3rd majority, which is the requirement of the Act, the said resolution therefore cannot be invalidated on the ground that there is an infirmity in the proceedings.
Bombay Village Panchayat (Meeting) Rules, 1959 - Rule 17. - See Bombay Village Panchayat Act, 1958, Section 35(3).
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 & 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 (Meeting) Rule, 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 (Meeting) 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 v/s. Group Gram Panchayat, Kharivli and others (LPA No.203 of 2013 & ors.). 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 v/s. Group Gram Panchayat Kharivali.
2. In the said case the Minutes recorded by the Tahsildar in the Special Meeting held under Section 35 the BVP 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 (Meeting) 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 (Meeting) 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 v/s 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 in so far as arriving at a conclusion that Rule 17 is mandatory solely relied upon the full bench judgment in Vishwas Pandurang Mokal's case.
3. 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 BVP Act to the Tahsildar calling upon the Tahsildar to requisite a meeting to consider the majority for the said purpose. The Tahsildar it seems disposed of the said notice on the ground that it was not tendered in prescri
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