Parmanand vs Additional Collector and Others

Z.A. Haq, J.—Heard Shri S.K. Tambde, learned Advocate for the petitioner, Ms. P.D. Rane, learned Assistant Government Pleader for respondent nos. 1 and 2 and Shri D.V. Mahajan, learned Advocate for the respondents

Rule. Rule returnable forthwith.

The petitioner was elected as the Sarpanch of Gram Panchayat, Murdada, in November/December, 2012. The respondent nos. 3 to 8 had moved the respondent no.2 for convening the meeting for considering the no confidence motion against the petitioner. The respondent no.2 had issued the notices of the Special General Meeting to be held on 21st May, 2013. The meeting was conducted on 21st May, 2013 and no confidence motion was passed against the petitioner. The petitioner being aggrieved in the matter had filed appeal challenging the Resolution of no confidence motion passed against the petitioner. The respondent no.1 by the order dated 20th June, 2013 dismissed the appeal filed by the petitioner. The petitioner, being aggrieved by the Resolution passed on 21st May, 2013 and the order passed by the respondent no.1 on 20th June, 2013, has filed this writ petition.

Shri S.K. Tambde, the learned Advocate for the petitioner has raised several grounds. One of the grounds, which is relevant for adjudication of the controversy in issue, is that the motion of no confidence was neither proposed nor seconded by any of the members of the Village Panchayat, as required by Rule 17 of the Bombay Village Panchayats (Meeting) Rules, 1959 (hereinafter referred to as "the Rules of 1959"). It is submitted that the provisions of Rule 17 of the Rules of 1959 are mandatory and as the motion of no confidence was neither moved nor seconded in the meeting held on 21st May, 2013, resolution of no confidence motion against the petitioner is illegal and has to be quashed. Rule 17 of the Rules of 1959 reads as follows:-

"A member who has given notice of a motion shall, when called on, either-

(a)state that he does not wish to move the motion, or

(b)move the motion in which case he shall commence his speech by a formal motion in the terms appearing on the list of business, after the motion is duly seconded."

The submission on behalf of the petitioner is that the Resolution of no confidence motion, being contrary to the mandatory provisions of Rule 17 of the Rules of 1959, is unsustainable in law and the order passed by the respondent no.1 overlooking the mandatory requirements of Rule 17 of the Rules of 1959 has also to be set aside. In support of his submissions, Shri Tambde has relied on the judgment given by the Division Bench of this Court in the case Vishnu Ramchandra Patil and Others Vs. Group Gram Panchayat and Others etc. etc., .

Shri Mahajan, the learned Advocate for the respondent nos. 3 to 8, has submitted that the motion of no confidence against the petitioner was properly moved and it was proposed and seconded in the meeting held on 21st May, 2013. The learned Advocate has submitted that the proceedings of no confidence motion are not properly recorded and, therefore, the name of the proposer and seconder has not been shown while recording the proceedings in the proceedings book. It is submitted that it is a ministerial lapse on the part of the Secretary of the Gram Panchayat, who has not properly recorded the proceedings and because of this lapse, no confidence motion moved against the petitioner and carried through by majority of 6 : 3 cannot said to be illegal. In support of his submission, the learned Advocate has relied on the judgment given in the case of Sahebrao Khandu Patil and Others Vs. Joharabai Latif Patel and Others, .

Shri Mahajan, the learned Advocate has submitted that even otherwise the provisions of Rule 17 of the Rules of 1959 are directory and not mandatory. In support of this submission, the learned Advocate has relied on the judgment given by the Full Bench of this Court in the case of Shri Viswas Pandurang Mokal Vs. Group Gram Panchayat Shihu and Others, .

Shri Mahajan, the learned Advocate, has submitted that in any case the motion having been carried out by majority of 6 : 3, this Court may not interfere in the matter on the technical ground that the record does not show that the motion was moved and seconded as required by Rule 17 of the Rules of 1959. In support of his submissions, the learned Advocate has relied on the following judgments:-

Sahebrao Khandu Patil and Others Vs. Joharabai Latif Patel and Others, and

Sanjay Chavan and Others Vs. State of Maharashtra and Others, .

Ms. P. D. Rane, the learned Assistant Government Pleader for respondent nos. 1 and 2 has supported the impugned order.

The submissions made on behalf of the respondent nos. 3 to 8 relying on the Full Bench judgment given by this Court in Shri Vishwas Pandurang Mokal Vs. Group Gram Panchayat Shihu & Ors.(supra) is misconceived. The Full Bench has recorded that the question as to whether the provisions of Rule 17 are mandatory or directory was not referred to it and therefore, it has not decided the question. Moreover, the Division Bench, in the judgment given in the case of Vishnu Ramchandra Patil Vs. Group Gram Panchayat and others has considered the judgment given by the Full Bench in the case of Vishwas Pandurang Mokal Vs. Group Gram Panchayat Shihu & Ors.. In view of the proposition of the law laid down in the judgment given in the case of Vishnu Ramchandra Patil Vs. Group Gram Panchayat and others, it has to be held that non-compliance of the provisions of Rule 17 of the Rules of 1959 vitiates the Resolution of no confidence motion passed in that meeting. Though the respondent nos. 3 to 8 have made an attempt to meet this challenge by submitting that the motion was proposed and seconded in the meeting, the pleadings in this regards are brought on record for the first time in the submissions filed before this Court. Further more, the pleadings are vague and even in the submission filed before this Court, the name of the proposer and seconder have not been mentioned. The tenor of the pleadings of the respondent nos. 3 to 8 show that the pleadings in this regard are incorporated keeping in view the law laid down by this Court in the judgments given in the cases of Sahebrao Khandu Patil and others Vs. Sau Joharabai latif Patel and Ors and Sanjay s/o Pandurang Chavan and others Vs. State of Maharashtra and others. It is settled principle that the law has to be applied considering the facts of the case. In the present case, the respondent nos. 3 to 8 are trying to fit in the facts to get the benefit of the law laid down in the cases of Sahebrao Khandu Patil and others Vs. Sau Joharabai Latif Patel and Ors and Sanjay s/o Pandurang Chavan and others Vs. State of Maharashtra and others.

The petitioner has specifically raised the ground in the appeal filed before the learned Collector that the meeting in which no confidence motion has been passed against the petitioner, has not been conducted as per the provisions of Rule 17 of the Rules of 1959. The learned Advocate for the petitioner has pointed out from the copy of the written notes of arguments, which were filed by the petitioner before the learned Collector and which are on record of the writ petition as Annexure E, the specific contention that the motion of no confidence was nether proposed nor seconded and the resolution of no confidence motion is passed against the petitioner, contrary to the mandatory provisions of Rules of 1959. Inspite of these pleadings and grounds raised by the petitioner before the learned Collector, the respondent nos. 3 to 8 have not brought on record any material to show that the motion of no confidence was properly moved and seconded, as required by the provisions of Rule 17 of the Rules of 1959.

The judgment given by this Court in the cases of Sahebrao Khandu Patil and others Vs. Sau Joharabai latif Patel and Ors and Sanjay s/o Pandurang Chavan and others Vs. State of Maharashtra and others does not assist to the respondent nos. 3 to 8. In these cases, there was no violation of the mandatory provisions as in the present case. Moreover, these judgments are prior to the judgment given in the case of Vishnu Ramchandra Patil Vs. Group Gram Panchayat and Ors., I am bound by the judgment given by the Division Bench of this Court in the case of Vishnu Ramchandra Patil Vs. Group Gram Panchayat & Ors.

In view of the above, the writ petition has to be allowed. Rule is made absolute in terms of prayer clause (1) which reads as follows:-

"quash and set aside the order of Hon''ble Respondent no.1 i.e. Additional Collector, Gondia dated 20.06.2013 received on 24.06.2013 placed at Annex.-''F''-passed in Gram Panchayat Appeal No. A-69/Murdada/38/2012-13 and further be pleased to quash and set aside the impugned resolution of special meeting of Gram Panchayat Murdada dated 21.05.2013 placed independently at Annex.-''G'' to the petition by suitable writ, order or direction, and in the interest of justice."

In the circumstances, the parties to bear their own costs.