SUNIL BHASKAR KATKAR vs RAOSAHEB RAMCHANDRA GAVHANE AND ORS.

By this petition, filed under Article 227 of the Constitution of India, the petitioner has impugned the order dated 5th April, 2018 passed by the

learned Collector, Solapur, dismissing the dispute application filed by the petitioner under the provisions of the Maharashtra Village Panchayats Act,

1958 (for short “the said Actâ€​). Some of the relevant facts for the purpose of deciding this petition are as under :

Some time in the month of June, 2015, the general election of Belati Grampanchayat , Belati, District Solapur was held. The post of Sarpanch was

reserved for Other Backward Class (male) Category .The petitioner contested the said election and was elected as Sarpanch. On 3rd March, 2018,

the respondent nos.1 to 6 herein filed an application to the learned Tahsildar, Solapur under section 35(1) of the said Act with requisite majority

requesting for convening a special meeting for passing a ""No Confidence Motion†against the petitioner. The learned Collector issued a notice

convening a special meeting on 7th March, 2018 for considering a said ""No Confidence Motionâ€. The said meeting however could not take place on

7th March, 2018 since the learned Tahsildar was not available because of his sickness.

The respondent nos.1 to 6 again applied before the learned Tahsildar, Solapur for convening the said meeting for considering a ""No Confidence

Motionâ€​. Learned Collector accordingly called a special meeting for considering the said “No Confidence Motionâ€​ on 17th March, 2018. On 17th

March, 2018, requisite members of the village Panchayat were present and passed a “No Confidence Motion†against the petitioner on various

grounds. The petitioner was present in the said meeting.

Being aggrieved by the said decision of the ""No Confidence Motion†passed against the petitioner in the said meeting dated 17th March, 2018, the

petitioner filed a dispute under section 35 (3B) of the said Act before the learned Collector, Solapur. On 5th April, 2018, learned Collector, Solapur

dismissed the said dispute filed by the petitioner and held that the procedure under section 35 of the said Act was duly followed while passing a ""No

Confidence Motion"" against the petitioner. Being aggrieved by the said order dated 5th April, 2018 passed by the learned Collector, Solapur, the

petitioner has filed this writ petition under Article 227 of the Constitution of India. Section 35 reads as under :-

“35. 5[(1) A motion of no confidence may be moved by not less than 6[one third] of the. total number of the members 7 * * who are for the time

being entitled to sit and vote at any meeting of the panchayat against the Sarpanch or the Upa-Sarpanch after giving such notice thereof to the

Tahsildar, as may be prescribed. 8[Such notice once given shall not be withdrawn.]

(2) Within seven days from the date of receipt by him of the notice under sub-section (1), the Tahsildar shall convene a special meeting of the

panchayat at a time to be appointed by him and he shall preside over such meeting. At such special meeting, the Sarpanch or the Upa-Sarpanch

against whom the motion of no confidence- is moved shall have a right to speak or otherwise. to take part in the proceedings at the meeting (including

the right to vote).

(3) If the motion is carried by 9[a majority of not less than two-third of] 10[* * * * * * *] the total number of the members- 11* * * who .are for the

time being entitled to sit and vote at any meeting of the panchayat or the Upa-Sarpanch, as the case may be, shall cease to hold office after seven

days from the date on which . the motion was carried unless he has resigned earlier or has disputed the validity of the motion so carried as provided in

sub-section (3B) ; and thereupon the office held by such Sarpanch or Upa-Sarpanch shall be deemed to be vacant. [Provided that, no such motion of

no-confidence shall be brought within a period of six months from the date. of election of Sarpanch or Upa-Sarpanch.]

(3A) If the motion 2[is not moved or is not carried] by :J[a majority of not less than two-third of] 4[ * *] the total number of the members 5* * * [who

are for the time being entitled to sit and vote ,at any meeting of the panchayat, no such fresh motion shall be moved against the Sarpanch or, as the

case may be, the Upa-Sarpanch within a period of G[one year] from the date of such special meeting.]

(3B) If the Sarpanch or, as the case may be, the Upa-Sarpanch desires to dispute the validity of the motion carried under sub-section (3), he shall,

within seven days from the date on which such motion was carried, refer the dispute to the Collector who shall decide it, as Jar as possible, within

fifteen days from the date on which it was received by him; and any such decision shall, subject to an appeal under subsection (3C), be final.

(3C) Any person aggrieved by the decision of the Collector may, within seven days from the date of receipt of such decision, appeal to the

Commissioner who shall decide the appeal, as far as possible, within fifteen days from the date on which the appeal is received by him, and any such

decision shall be final.

(3D) Where on a reference made to him under sub-section (3B), the Collector upholds the validity of the motion carried under sub-section (3) and no

appeal is made by the Sarpanch or the Upa-Sarpanch sub-section (3C) within the limitation period specified in that sub-, section, or where an appeal is

made under sub-section (3C) but it is rejected by the Commissioner, the Sarpanch or, as the case may be, the Upa-Sarpanch shall cease to hold office,

in the former case, immediately after the expiry of the said limitation period and, in the latter case, immediately after the rejection of the appeal, and

thereupon the office held by such Sarpanch or Upa-Sarpanch shall be deemed to be vacant).

(4) In cases where the offices of both the Sarpanch and Upa-Sarpanch become vacant simultaneously, the District Village Panchayat Officer or such

other officer as he may authorise in this behalf shall, pending the election of the Sarpanch exercise all the powers and perform all the functions and

duties of the Sarpanch but shall not have the right to vote in any meetings of the panchayat.â€​

Mr.Surel S. Shah, learned counsel appearing for the petitioner invited my attention to the annexures to the writ petition, including the notice issued

by the respondent nos.1 to 6 to the learned Tahsildar for convening a special meeting for considering a ""No Confidence Motion"" against the petitioner,

the minutes of the meeting prepared by the learned Tahsildar on 17th March, 2018 and also the order passed by the learned Collector, Solapur.

It is submitted by the learned counsel that the respondent nos.1 to 6 had not challenged the election of the petitioner though the petitioner had been

elected to the said post of Sarpanch in OBC Category in the month of June, 2015. The petitioner had performed his duties punctually and promptly and

had conducted the meetings of the Village Panchayat regularly. There was no complaint of whatsoever nature against the petitioner in respect of any

of such activities.

It is submitted that admittedly the respondent nos.1 to 6 had issued a notice of ""No Confidence Motion"" before the learned Tahsildar, (North

Solapur) on 3rd March, 2018. Pursuant to the said notice received by the learned Tahsildar, he convened a meeting on 7th March, 2018. Though the

said meeting was convened on 7th

March, 2018 and the petitioner was present in the said meeting from 11:00 a.m. to 2:00 p.m., the said meeting could not be conducted since only the

Gram Sevak was present and neither the respondent nos.1 to 6 were present nor the learned Tahsildar, North Solapur was present. He submits that

the respondent nos.1 to 6 thereafter filed another application before the learned Tahsildar, North Solapur for convening a special meeting for tabling

a ""No Confidence Motion"" against the petitioner. Learned counsel strongly placed reliance on section 35(3-A) of the said Act and would submit that

since ""No Confidence Motion"" was not moved or passed in the said meeting held on 7th March, 2018, no fresh motion could be moved against the

petitioner within a period of one year from the date of such special meeting held on 7th March, 2018. He submits that the resolution thus passed by the

respondent nos.1 to 6 was in violation of section 35(3-A) of the said Act and was illegal. Learned Collector, Solapur thus ought to have allowed the

said dispute filed by the petitioner under section 35(3-B) of the said Act.

In support of the aforesaid submissions, learned counsel for the petitioner placed reliance on the judgment delivered by the Division Bench of this

Court in case of Prakash Barku Patil vs. The State of Maharashtra & Ors., (1998) 3 Bom.CR 84 and in particular paragraph 7. He also placed

reliance on the later judgment of the Division Bench of this Court in case of Ravindra Sukhdeo Sanap & Another vs. State of Maharashtra & Ors.,

2014 (4) Mh.L.J. 443 and in particular paragraphs 7 to 12. He placed reliance on Rule 17 of the Bombay Village Panchayats (Meetings) Rules, 1959

and would submit that since the meeting itself could not be held on 7th March, 2018, fresh meeting could not have been called by the learned Tahsildar

on 17th March, 2018. He submits that the Division Bench of this Court in case of Ravindra Sukhdeo Sanap & Anr. (supra) has distinguished the

judgment of this Court in case of Prakash Barku Patil (supra) on the ground that Rule 17 of the Bombay Village Panchayats (Meetings) Rules, 1959

was not brought to their notice.

It is submitted by the learned counsel that there is no provision either in the Bombay Village Panchayats Act, 1958 or in the said Bombay Village

Panchayats (Meetings) Rules, 1959 that the presence of the learned Tahsildar was mandatory for conducting the said special meeting for considering

a ""No Confidence Motion"" against the Sarpanch. The petitioner was already present in the said meeting. He submits that the principles of law laid

down by the Division Bench of this Court in case of Ravindra Sukhdeo Sanap & Anr. (supra) would clearly apply to the facts of this case. He

submits that there is distinction between the meaning of ""No Confidence Motion"" “not carried†and â€not moved†under section 35(3-A) of the

said Act. Even though the learned Tahsildar was not present in the meeting held on 7th March, 2018, no fresh meeting could be called by the learned

Tahsildar within a period of one year from the date of the special meeting held on 7th March, 2018.

Learned counsel appearing for the respondent nos.1 to 6 on the other hand placed reliance on the judgment of this Court in case of Prakash

Barku Patil (supra) and Raviraj Sambhajirao Nimbalkar vs. The Tahsildar, Bhudargad Chief Executive Officer & Ors. 2018 SCC OnLine Bom. 505.

He submitted that since the learned Tahsildar was not available in the meeting held on 7th March, 2018 due to his sickness, the said meeting could not

take place and thus ""No Confidence Motion"" proposed to be moved against the petitioner could not be moved in the said meeting. The said meeting

could not have been conducted in absence of the learned Tahsildar. Learned Tahsildar was thus justified in calling out special meeting on 17th March,

2018 for tabling the said ""No Confidence Motion"". There was thus no violation of section 35(3-A) of the said Act. He submits that even under the

provisions of the Bombay Village Panchayats (Meetings) Rules, 1959 and more particularly Rule 17, it is not contemplated that the said meeting could

be proceeded with in absence of the learned Tahsildar. He distinguished the judgment of the Division Bench in case of Ravindra Sukhdeo Sanap &

Anr. (supra).

Mr.Shah, learned counsel for the petitioner in rejoinder submits that the judgment of the Division Bench of this Court in case of Ravindra Sukhdeo

Sanap & Anr. (supra) was not brought to the notice of this Court in case of Raviraj Sambhajirao Nimbalkar (supra) and thus is not binding on this

Court.

REASONS & CONCLUSIONS :

It is not in dispute that requisite number of members had moved an application under section 35(A) before the learned Tahsildar for calling a

special meeting for the purpose of considering a ""No Confidence Motion"" against the petitioner on various grounds. Learned Tahsildar, Solapur had

called a meeting on 7th March, 2018. The said meeting however, could not be held in view of the fact that the learned Tahsildar, North Solapur was

sick and could not attend the said meeting. It is not the case of the petitioner that the learned Tahsildar, Solapur was present in the said meeting and

that the said ""No Confidence Motion"" was moved against the petitioner and was defeated on one or other ground. It is a common ground that the

learned Tahsildar, Solapur could not remain present in the said special meeting called on 7th March, 2018.

Pursuant to the application made by the respondent nos.1 to 6, the learned Tahsildar therefore, called a meeting on 17th March, 2018. The

petitioner was present in the said meeting and was allowed to participate in the said meeting. It is not in dispute that the requisite number of members

required to pass a ""No Confidence Motion"" were present in the said meeting on 17th March, 2018 and the said ""No Confidence Motion"" was passed

against the petitioner on various grounds. It is also not in dispute that the said meeting held on 17th March, 2018, the learned Tahsildar was present

and had presided the said meeting. The petitioner did not challenge the said notice calling for a meeting on 17th March, 2018 before such meeting

was held and the said ""No Confidence Motion"" was passed against the petitioner. The petitioner challenged the said decision of ""No Confidence

Motion"" only subsequently by filing a dispute under section 35(3-B) of the said Act before the learned Collector, Solapur.

A short question that arises for consideration of this Court is whether the first meeting which could not be held because of absence of learned

Tahsildar and other members because of sickness of the learned Tahsildar, could be considered as meeting under section 35(3-A) of the said Act and

it could be considered that the “No Confidence Motion†was moved or was not carried out and thus no fresh ""No Confidence Motion"" could be

moved against the Sarpanch within a period of one year from the date of such special meeting on 7th March, 2018.

A Full Bench of this Court in case of Viswas Pandurang Mokal vs. Group Gram Panchayat, Shihu & Ors. 2011(3) Mh.L.J. 500 has construed

section 35 of the Bombay Village Panchayats Act, 1958 and also Bombay Village Panchayats (Meetings) Rules, 1959. It is held that section 35 of the

said Act contains a provision for submission of requisition by members to the learned Tahsildar for calling a special meeting of the Village

Panchayat to consider the “No Confidence Motion†against the Sarpanch or Up-Sarpanch. It casts a duty on the Tahsildar to call a meeting forÂ

that purpose within seven days of the receipt of the requisition. Section 35 does not contain any provision as to how that meeting is to be conducted,

save and except to provide that the Sarpanch or Up-Sarpanch concerned shall have a right to attend and participate in that meeting.

It is held that it is thus clear that moving of the ""No Confidence Motion"" is not by submission of requisition to the Tahsildar. The requisition is only

for calling a special meeting to facilitate moving of a ""No Confidence Motion"". The ""No Confidence Motion"" is actually moved in the meeting of the

Village Panchayat and as there is no contrary provision to be found either in the Act or in the ""No Confidence Motion"" Rules, in relation to moving of

a motion in a meeting of the Village Panchayat, Rule 17 of the Bombay Village Panchayats (Meetings) Rules, 1959 which makes such a provision will

apply. In the Meeting Rules there is a provision made for calling a special meeting of Village Panchayat because a requisition is received from

members. The concept of convening a special meeting of the Village Panchayat as a consequence of requisition received from the members is that

the Meeting Rules in relation to convening and holding of a special meeting of the Village Panchayat will apply to the special meeting convened under

section 35, subject to there being any special contrary provision in the said or in the ""No Confidence Motion"" Rules.

Rule 6 of the Meeting Rules provides the mode and manner of issuing notice of such meeting of the panchayat for the business to be transacted

thereat. Rule 7 provides for service of notice. It provides that if any such notice is to be given or tendered or where the member, or as case may be,

in his absence such adult male member, is present but refuses to accept the notice, it shall be served by affixing it, in the presence of two witnesses,

on the outer door or some other conspicuous part of the house in which the member ordinarily resides. If none of the aforesaid modes of serving

notice is feasible, the notice shall be affixed, in the presence of two witnesses, on some conspicuous part of the house in which the member is known

to have last resided or carried on business or personally worked for gain.

This Court in case of Vijay Ramchandra Katkar vs. Group Gram Panchayat, Pali & Ors. 2010 (4) Mh.L.J. 497Â has held that the provisions of

the Bombay Village Panchayats (Meetings) Rules, 1959 would apply to the meetings in which ""No Confidence Motion"" is proposed. It is held that the

motion is to be first moved and seconded followed by discussion thereon and thereafter motion is required to be put to vote. The Presiding

Officer has to be satisfied that the motion has been sufficiently discussed. The mover of the motion or the secondor can reply at the conclusion of the

debate.

Rule 18 of the Meeting Rules provides that after a motion has been moved and seconded the person presiding shall propose the question by

reading the motion for the consideration of the panchayat. Rule 40 of the Meeting Rules provides that the proceedings of each meeting of the

panchayat shall be recorded in a bound book. The names of the members present at each meeting, the decisions arrived at, the names of the members

voting for or against and of the members remaining neutral also has to be entered. The proceedings shall be signed by the person presiding at the

meeting and shall be read out at the next meeting of the panchayat for confirmation. The judgments of the Full Bench in case of Viswas Pandurang

Mokal (supra) and the judgment of this Court in case of Vijay Ramchandra Katkar (supra) squarely apply to the facts of this case. I am respectfully

bound by the said judgment.

In my view, the learned Tahsildar has to not only to convene a meeting pursuant to the requisition received from the requisite number of

members under section 35(1) of the said Act but also has to remain present in the said meeting, conduct the said meeting, grant an opportunity to the

Sarpanch or Up-Sarpancha against whom a ""No Confidence Motion"" is moved in the said meeting and has to record the discussion held and number

of votes in favour or against or neutral in respect of such ""No Confidence Motion"" and the resolution passed in the said special meting. I am thus not

inclined to accept the submission of the learned counsel for the petitioner that even if the learned Tahsildar was absent in the first special meeting

called on 7th March, 2018 for whatsoever reasons, the said meeting could be conducted by the members of the Village Panchayat and in view of the

fact that the said meeting was called by the learned Tahsildar, ""No Confidence Motion"" was deemed to have been moved and deemed to have

been rejected and thus no fresh meeting could have been held on 17th March, 2018 by the learned Tahsildar i.e. within a period of one year from the

date of the first special meeting which was called by the learned Tahsildar on 7th March, 2018.

The Supreme Court in case of Ramesh vs. Sheshrao & Ors. 1998 AIR SCW 4141 has construed section 35(3-A) of the Bombay Village

Panchayats Act, 1958 and has held that the said provision is in respect of the motion which though valid, is not carried out by requisite majority of

members because of it not being moved or being passed by requisite majority. The Supreme Court considered the situation where the first special

meeting which was held to be invalid on the ground of want of valid notice upon the Sarpanch. The Supreme Court held that in this situation, the bar

contained in subsection (3-A) of section 35 of the said Act does not cover such a situation. The provision clearly is in respect of the motion which

though valid, is not carried out by requisite majority of the members because of it not being moved or having passed by requisite majority of members.

No such defect was found in the first meeting in that case which was carried out by requisite majority and not rejected in the meeting. It is held that

the object of the provision clearly is to prevent the frivolous ""No Confidence Motion""s repeatedly within one year, if the earlier one has not been even

moved or has been defeated because of the want of requisite majority for passing the same. The Supreme Court held in that case that the first motion

was not of the kind which attracted sub-section (3-A) of section 35 and thus there was no ground for the Commissioner to allow the appeal since

sub-section (3-A) of section 35 was not available in the that case.Â

In my view, since in this case the meeting itself could not be held for the reason of sickness of the learned Tahsildar and none of the membersÂ

of the Village Panchayat were present in the meeting held on 7th March, 2018 for considering a “No Confidence Motion†against the petitioner,

such a situation would not fall under section 35(3-A) of the said Act and thus there would be no bar of holding a special meeting within a period of one

year from the date of the earlier special meeting in such a situation.

This Court in case of Khandu Bhivaji Jogdand vs. State of Maharashtra & Ors., 2010(4) Mh.L.J. 402 has followed the judgment of the Division

Bench of this Court in case of Prakash Barku Patil vs. State of Maharashtra & Ors., 1998(1) Mh.L.J. 43 and has held that if the ""No Confidence

Motion"" is not carried according to law, then there is no bar to move for the second motion within one year. The judgment of this Court in case of

Khandu Bhivaji Jogdand (supra) would apply to the facts of this case. I am respectfully bound by the said judgment.

The Division Bench of this Court in case of Prakash Barku Patil (supra) has held that the harmonious construction of the provisions of the Rule

2(3) of the said Meeting Rules and section 35(3-A) of the said Act clearly leads to the conclusion that the term “motion is not moved†is

synonymous with and amounts to “motion is not carriedâ€. It is held that to decide whether the motion was moved or not moved, the meeting in

pursuance of the notice of no motion must be held and vote must be recorded either against or in favour of the motion. In my view, the principles laid

down by the Division Bench of this Court in case of Prakash Barku Patil (supra) squarely applies to the facts of this case. In the facts of this case, no

meeting was held on 7th March, 2018 in view of the fact that the learned Tahsildar was sick and thus the question of any moving any ""No Confidence

Motion"" or holding the voting in pursuance of the ""No Confidence Motion"" either against or in favour of the ""No Confidence Motion"" did not arise.

This Court in case of Raviraj Sambhajirao Nimbalkar vs. The Tahsildar, Bhudargad, Chief Executive Officer & Ors. (2018) SCC OnLine Bom.

505 has adverted to the judgment of the Division Bench of this Court in case of Khandu Bhivaji Jogdand (supra), the judgment in case of Prakash

Barku Patil (supra), and also the judgment of the Supreme Court in case of Ramesh vs. Sheshrao & Ors. (supra)Â and has held that if the meeting

could not be held in view of the stay order passed by the Civil Court, there would be no bar in holding a fresh meeting within a period of one year from

the date of such special meeting. The principles laid down in the said judgment would apply to the facts of this case. I am respectfully bound by the

said judgment.

Insofar as the judgment delivered by the Division Bench of this Court in case of Ravindra Sukhdeo Sanap & Another (supra) relied upon by the

learned counsel for the petitioner is concerned, the Division Bench in the said judgment has held that the motion cannot be said to be “not carriedâ€

unless and until it is “moved†legally. It fails only after it is so moved and is voted against. Thus “not carried†is a later stage reached after

it is “moved†as per law and becomes legally available for discussion in the meeting. Therefore “not moved†is not the same as “not

carriedâ€. It is held that if the meeting is held illegal or the motion could not have been moved / considered at all in it, the bar is not attracted.

“Not carried†shows failure or rejection of the ""No Confidence Motion"" while “not moved†is the step or decision to the requisitionists not to

press the ""No Confidence Motion"" at all. In my view, the said judgment would assist the case of the respondent nos.1 to 6 and not the petitioner. In

the facts of this case, admittedly ""No Confidence Motion"" could not be moved at all in view of the fact that the learned Tahsildar was not available

an the meeting accordingly could not be held. Since ""No Confidence Motion"" was not moved, the question of “not carried out†""No Confidence

Motion"" did not arise. In my view the question of any bar not to move a fresh motion against the Sarpanch or as the case may be Up-Sarpanch within

a period of one year from the date of such special meeting in which the ""No Confidence Motion"" could not be moved because the meeting was not

held, did not arise.

The petitioner has not disputed that in the subsequent meeting the petitioner was allowed to participate and to speak in which the said ""No

Confidence Motion"" was passed by requisite number of members entitled to sit and vote for the purpose of moving and passing a ""No Confidence

Motion"" as contemplated under section 35(3) of the said Act. It is held by this Court in catena of decisions that the decision taken by majority of

members in the special meeting passing of ""No Confidence Motion"" against the Sarpanch and UpSarpanch has to be considered while deciding the

challenge to the said ""No Confidence Motion"" passed against such Sarpanch or UpSarpanch.

In my view, learned Collector, Solapur rightly considered all these aspects in detail in the impugned order dated 5th April, 2018 and has rightly

dismissed the dispute filed by the petitioner. The findings rendered by the learned Collector, Solapur are not perverse and thus cannot be interfered

with by this Court in this writ petition filed under Article 227 of the Constitution of India. The petition is devoid of merit.

I therefore, pass the following order :-

a). The Writ Petition No.4494 of 2018 is dismissed.

b). There shall be no order as to costs.