Mohanlal S/O Rambhau Mendhe vs Additional Collector, Gondia And Others

S.B.SHUKRE, J.

Heard Shri S.V.Sohoni, learned counsel for the petitioner, Shri B.M.Lonare, learned Assistant Government Pleader for respondents no.1 and 2 and

Shri Rohan Joshi, learned counsel for respondent no.3.

Rule. Rule made returnable forthwith. Heard finally by consent of learned counsel for the parties.

Shri S.V. Sohoni, learned counsel for the petitioner submits that the notice of special meeting proposed to be convened for discussing and passing no

confidence motion was not received by the petitioner and that the procedure prescribed under Rule 27 of The Bombay Village Panchayats (Sarpanch

and UpaSarpanch) Election Rules, 1964 (hereinafter referred to as “Meeting Rulesâ€) was not followed, as in the meeting, the motion of no

confidence was neither proposed nor seconded. He submits that unless there is proposing and seconding of the motion of no confidence, the discussion

on the notice of no confidence cannot commence.

Shri B.M.Lonare, Learned AGP for respondents 1 and 2 submits that proper procedure has been followed. There is evidence to show that the

notice was duly served upon the petitioner and thus, according to him, there is no merit in this petition.

Shri Rohan Joshi, the learned counsel for the respondent no.3 submits that proper procedure has been followed and the notice has been served upon

the petitioner. He also submits, as held by the Full Bench of this Court in the case of Tatyasaheb Ramchandra Kale Vs. Navnath Tukaram Kakde and

others, reported in 2014 (6) Mh.L.J.804, that Rule 17 is directory not mandatory in nature and there is sufficient or substantial compliance with the

Rule 17 of the Meeting Rules.

Nobody appears for respondent nos. 4 to 11 though duly served.

Upon going through the paper book, impugned order and the case law relied upon by both the sides, I find that there is no merit in this petition and

great substance in the arguments advanced by the learned AGP and learned counsel for respondent no.3.

The learned counsel for the petitioner has relied upon the Full Bench judgment rendered in the case of Vishwas Pandurang Mokal Vs. Group Gram

Panchayat Shihu & Ors, reported in 2011 (3) ALL MR 778, to advance the argument that Rule 17 of the Meeting Rules, applicable to the special

meeting convened for considering passing of no confidence motion, requires that proper procedure must be followed and that there is a distinction

between the notice or requisition of no confidence motion issued to the Tahsildar and actually moving of the proposal for passing of no confidence

motion. He has also placed reliance upon the Division Bench judgment of this Court rendered in the case of Vishnu Ramchandra Patil Vs. Group

Gram Panchayat & Ors, reported in 2013 (3) ALL M R 16 which lays down that in such a meeting, it is necessary that the motion is first proposed

and then seconded.

There can be no dispute about the law laid down in the aforesaid decision relied upon by the learned counsel for the petitioner. There is indeed a

distinction between the requisition made by a member or few members to the Tahsildar for convening a special meeting for passing of no confidence

motion and holding a special meeting as required under Section 35 of the Maharashtra Village Panchayats Act, 1958 and actual moving for motion of

no confidence. In the present case, this has been duly followed by the members of the Gram Panchayat interested to pass no confidence motion

against the petitioner. Similarly, there is no quarrel about the principle that Rule 17 of the Meeting Rules requires that in the special meeting, the motion

of no confidence has to be commenced first by the proposer and followed by the approval granted by the seconder and then, it is required to be taken

up for due discussion amongst the members present at the meeting. Now, the question is whether this procedure has been followed in the present case

?.

To answer the question, the nature of Rule 17 of the Meeting Rules needs consideration. If this rule is seen as mandatory in nature, there would be

no question of examining the issue from the view point of the sufficient or substantial compliance and the compliance would have to be examined only

from the angle of compliance in letter and spirit of the words of Rule 17. But, that does not seem to be the case here. In the case of Tatyasaheb Kale

(supra ) relied upon by the learned counsel for the respondent no.3, the Full Bench of this Court has held that Rule 17 is directory in nature. It is found

that this rule is not mandatory in nature. It would then mean that sufficient or substantial compliance with this rule could be considered as the

compliance with the procedure applicable to the meeting convened for considering the no confidence motion.

The copy of Minutes of Meeting is placed on record and the copy of requisition made to the Tahsildar for convening special meeting is also a part

of the paper book. On going through these documents, one can see that the requisition has been made by 7 members out of 9 members of the Gram

Panchayat and these 7 members were the members, who also attended the special meeting convened for considering passing of no confidence

motion. Remaining two members were absent. The documents further show that the attention of the Members present to the proposed no confidence

motion was first invited by the Tahsildar and thereupon, one member namely Arvind Hivraj Tembhurnikar stated that the reason given in the

requisition was correct and that, the Sarpanch i.e. the petitioner herein, was exercising his powers like a monarch without taking into confidence the

other members of the Gram Panchayat. After this, it is further seen from the documents, all the 7 members present voted in favour of no confidence

motion and thus, no confidence motion came to be passed unanimously.

The effect of passing of no confidence motion with unanimous vote, I must say, has been that there is due compliance with the requisite procedure

and in any case, one has to accept the fact that no prejudice could be said to have been caused to the petitioner by not following procedure of Rule 17

in letter and spirit. The facts stated in the earlier paragraph would certainly show that the discussion began with proposal made by one person that is

Arvind Tembhurnikar though seconding by another person was absent. But, the meeting thereafter proceeded in the manner as would show as if the

jobs of seconding and passing of no confidence motion were performed simultaneously. This is indicated by the fact that all the members present in

the meeting unanimously agreed that the petitioner had lost the confidence of the house for the reason stated in the requisition sent to the Tahsildar.

Question of proposing by one person and seconding by another person would have become relevant if there was difference of opinion amongst

members present at the meeting and in that case, not following of the procedure in letter and spirit would have had the potential of causing prejudice to

the petitioner. But, the facts of this case show that the issue of causing prejudice never arose as there was unanimity amongst all the members present

in the meeting to vote the petitioner out of his position as Sarpanch. Therefore, I find that there has been substantial or sufficient compliance with Rule

17 of the Meeting Rules.

There is also a submission advanced by the learned counsel for the petitioner that no notice of the meeting was duly served upon him. My attention

has also been invited to the affidavit filed by Panch Witness namely Pandurang Hansraj Patle. He has stated in his affidavit that he never went to the

house of the Sarpanch for the purpose of affixing the copy of the notice on the door to the house of the Sarpanch. There is a report of Talathi duly

signed by him, which shows that Talathi went to the house of the petitioner, the petitioner was not present and 4 members were present in the house,

but those members refused to acknowledge the receipt of the notice and therefore, copy of the notice was pasted on the door to the house of the

Sarpanch in the presence of the two witnesses namely Pandurang Hansraj Patle and Shyamlal Marbate. This report has been prepared by Talathi. He

has endorsed to this fact in the stand he has taken in this regard. There is one more panch witness  Shyamlal Marbate, whose affidavit supporting

the case of the petitioner has not been filed on record by the petitioner, but his affidavit has been placed on the record by respondent nos. 4 to 11.

Shyamlal Marbate has categorically stated in his affidavit that he along with Pandurang Patle had gone to the house of the petitioner and in his

presence, notice was pasted to the door in the circumstances stated in the report of Talathi. So, the word of Talathi gets support from the word of one

panch witness and whereas, the word of Pandurang Patle gets no confirmation from Talathi report and the other panch witness. Therefore, I find that

the Talathi report depicts correct picture showing notice was duly served. Thus, I see no merit in the submission that the notice was not received by

the petitioner.

For the aforesaid reasons, I see no merit in the petition and the petition stands dismissed. Rule is discharged. No costs.