Smt. Sampada Vilas Mahargude v. State of Maharashtra

7. Learned Counsel appearing for the Petitioner relied on Prabhawati Vijaykumar Khivsara (supra) and particularly on paragraphs 20 to 22 therein which read as under: “20. The Division Bench of this Court, in the case of Nimba Rajaram Mali vs. Collector, Jalgaon and others, reported in 1998 (3) Mh. L.J. 204:1999 (1) Bom. c.r. 546, followed the aforesaid Judgment in the case of Smt. Annapurnabai Ajabrao vs. Annapurnabai Anandrao (referred supra) and observed thus: “In a democratic society what is important is the will of the majority and the elected representatives must honour the will of the majority. It is immaterial to analyse and debate on the reasons behind the will of the majority or the specific reasons for such will being expressed. The will of the majority is of paramount importance and it must be respected by all elected representatives responsible for the governance of such democratic institutions. As observed by the Apex Court in the case of Babubhai (supra), resolution of No Confidence Motion is different from Censure Motion and such a resolution cannot be faulted on the ground that there were no reasons or reasons were vague and lacked detailed specifications. Once the resolution of No Confidence Motion is passed by a clear majority and in keeping with the requirements of the concerned statutory provisions, the person against whom such a resolution is passed, must honour the will of the majority and make way for the new election of his successor. Unless it is shown that while passing such a resolution of No Confidence Motion, there was flagrant violation of any of mandatory procedure laid down, such a resolution cannot be interfered with by the Court or statutory authorities adjudicating such disputes”.

21. It appears that these Judgments of the Division Benches also have not been brought to the notice of the learned Judges who had decided the cases which are relied on by Shri Chate, learned Counsel.

22. In a democratic set up a person is expected to respect the mandate of majority. Support of a majority is fundamental in the democratic set up and particularly when no prejudice is pointed out by alleged departure from the procedural requirement, the mandate of the majority cannot be interfered with lightly by this Court. In that view of the matter, I am unable to find any merit in both the petitions. Both the petitions, are therefore, rejected”.

8. The distinction between a motion of no confidence and a motion of censure was emphasised in the decision of the Supreme Court in Babubhai Muljibhai Patel v. Nandlal Khodidas Barot[2] wherein it has been held as follows: “It is no doubt true that according to the form prescribed the ground for the motion of no confidence has to be mentioned in the notice of intention to move a motion of no confidence. It does not, however, follow therefrom that the ground must also be specified when a motion of no confidence is actually passed against a President. It is pertinent in this context observe that there is a difference between a motion of no confidence and a censure motion. While it is necessary in the case of a censure motion to set out the ground or charge on which it is based, a motion of no confidence need not set out a ground or charge. A vote of censure presupposes that the persons censured have been guilty of some impropriety or lapse by act or omission and it is because of that lapse or impropriety that they are being censured. It may, therefore, become necessary to specify the impropriety or lapse while moving a vote of censure. No such consideration arises when a motion of no confidence is moved. Although a ground may be mentioned when passing a motion of no confidence, the existence of a ground is not a prerequisite of a motion of no confidence. There is no legal bar to the passing of a motion of no confidence against an authority in the absence of any change of impropriety or lapse on the part of that authority.

The essential connotation of a no-confidence motion is that the party against whom such motion is passed has ceased to enjoy the confidence of the requisite majority of members”.

9. A Full Bench of this Court in the case of Tatyasaheb Ramchandra Kale v. Navnath Tukaram Kakde[3] was considering the issue of whether a failure to formally move and second a motion of no confidence as required by Rule 17 of the Bombay Village Panchayats (Meetings) Rules, 1959 would render the motion of no confidence carried by the requisite majority under Section 35 of the said Act invalid. The Full Bench in its decision, held as follows:-

15. It is in the context of the test laid down by the Apex Court in K. Narasimhiah's case that the instant case would have to be considered. As indicated above, the object of the Bombay Village Panchayats 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 insofar 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 pre-eminent 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 rd of the members and passed by rd of the members, then ⅓ ⅔ 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 rd majority, if ⅔ the motion is to be termed as invalid, the same would result in nullifying and defeating provision in the Bombay Village Panchayats 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.

10. The Full Bench in Tatyasaheb Ramchandra Kale (supra) in paragraph 21 held as follows: “21. Finally to put the matter in perspective, the requirement of Rule 17 in the matter of proposing and seconding the motion cannot impinge upon the validity of the motion of no confidence which has otherwise been passed by fulfilling the requirement of section 35(3) of the Bombay Village Panchayats Act, 1958. The infraction that has occurred on account of the motion not being formally proposed and seconded cannot invalidate the motion if the same has been passed by fulfilling the requirements of section 35(3) of the Bombay Village Panchayats Act, as the said infraction does not affect the merits of the case. Hence we hold that Rule 17 is directory, and the test laid down in section 44(3) of the Bombay Village Panchayats Act namely whether the defect affects the merits of the case, would have to be applied, if a challenge is raised to such a motion. We accordingly answer the reference and remit the matter back to the Division Bench for the above Letters Patent Appeal being decided on merits.”

11. The said Act provides for separate and distinct provisions concerning motion of no confidence (Section 35), disqualification (Sections 14, 14-A, 14-B) and removal from office (Sections 39, 39A). As held by the Hon’ble Supreme Court in Babubhai (supra), there is a distinction between the motion of no confidence and disqualification/removal from office. As held in Babubhai (supra) the essential connotation of a no-confidence motion is that the concerned Sarpanch or Upa-Sarpanch against whom such motion is passed has ceased to enjoy the confidence of the requisite majority of members. Thus, it is clear that as held in Babubhai (supra) although a ground may be mentioned when passing a motion of no confidence, the existence of a ground is not a prerequisite of a motion of no confidence. As held in Tatyasaheb Ramchandra Kale (supra) 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.

12. Thus, following are the well established principles on the basis of which mandatory requirements of the scheme of the said Act read with said Rules can be ascertained: a) In a democratic society what is important is the will of the majority and the elected representatives must honour the will of the majority. b) Once the resolution of Motion of No Confidence is passed by a clear majority and in keeping with the requirements of the concerned statutory provisions, the person against whom such a resolution is passed, must honour the will of the majority and make way for the new election of his successor. Unless it is shown that while passing such a resolution of Motion of No Confidence, there was flagrant violation of any of mandatory procedure laid down, such a resolution cannot be interfered with by the Court or statutory authorities adjudicating such disputes. c) In a democratic set up a person is expected to respect the mandate of majority. Support of a majority is fundamental in the democratic set up and particularly when no prejudice is pointed out by alleged departure from the procedural requirement, the mandate of the majority cannot be interfered with lightly by this Court. d) 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. e) Test laid down in Section 44(3) of the said Act is whether the defect affects the merits of the case, would have to be applied, if a challenge is raised to motion of no confidence passed against Sarpanch and Upa- Sarpanch, as the case may be.

13. On the touchstone of the above well established principles, the following can be said to be the mandatory requirements as per Section 35 of the said Act for coming to the conclusion that the ‘Motion of No Confidence’ is validly carried against the Sarpanch or Upa-Sarpanch, as the case may be:-

(i) Notice of ‘Motion of No Confidence’ against Sarpanch and Upa-

Sarpanch is required to be submitted to Tahsildar by not less than twothird members of the total number of members who are for the time being entitled to sit and vote at any meeting of the Panchayat.

(ii) Within seven days from the date of receipt of such notice by the

Tahsildar, he shall convene a Special Meeting of the panchayat for considering ‘Motion of No Confidence’ at the office of the panchayat at the time to be appointed by him and he shall preside over such meeting. Notice of such meeting is to be served on all the members of the Panchayat including the Sarpanch and the Up-Sarpanch.

(iii) At such special meeting of Grampanchayat, the Sarpanch or Upa-

Sarpanch against whom ‘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.

(iv) Such a motion is required to be carried by a majority of not less than three-fourth of the total number of members, who are for the time being entitled to sit and vote at any meeting of the Grampanchayat.

14. In view of the above discussion, it is clear that the following requirements as provided in rules are not the mandatory requirements:

(i) The requirement that Notice of motion of no-confidence shall be accompanied by nine additional copies and the Tahsildar to send one copy to the Sarpanch, one to the Upa-Sarpanch and one each to the Zilla Parishad, the Panchayat Samiti, and the Collector and the Commissioner. One copy shall also be given to the Secretary.

(ii) The requirement that Tahsildar shall publish the said notice by placing the same on the notice board at the office of the Panchayat and Tahsildar Office.

15. The factual position on record in this case demonstrates the following:-

(i) On 11th July 2023, Respondent Nos. 5 to 11 i.e. seven members out of nine members have moved the motion of no confidence in accordance with Section 35 of the said Act and submitted the said proposal to the Tahsildar.

(ii) The Tahsildar i.e. Respondent No. 3 convened special meeting on

17th July 2023 and issued notice dated 12th July 2023 to all the members i.e. Respondent Nos. 5 to 11 including the Petitioner. The said Notice has been served on the Petitioner’s son who is an adult and present at that time in the residence of the Petitioner and a Panchnama to that effect has been drawn. Accordingly, Notice dated 12th July 2023 was served on the Petitioner.

(iii) The meeting of Gram Panchayat has been held on 17th July 2023 and motion of no confidence has been passed by an overwhelming majority of seven members out of nine members i.e. more than threefourth members supporting the motion of no confidence. The said meeting was not attended by the Petitioner.

16. In light of above legal and factual position, it is necessary to consider the contentions raised by the Petitioner.

17. It is one of the contention of the Petitioner that the said notice is not in accordance with law and that the said requisition as contemplated under Section 35(1) of the said Act is not in the prescribed format. It is significant to note that prescribed format only contemplates setting out the reasons for no-confidence motion. The notice of requisition issued by the Respondent Nos. 5 to 11 is at page 18 of the Writ Petition and along with the same, even the affidavit of Respondent Nos. 5 to 11 is also filed. A bare perusal of the said notice clearly shows that the reasons are set out for the no-confidence against the Petitioner i.e. Sarpanch. The said reasons inter alia are that the Sarpanch is not doing the work properly, not implementing the resolution passed by the Gram Panchayat and Sarpanch does not take anybody in confidence etc. Therefore, there is no substance in the contention that the same is not in the prescribed format.

18. The contention which the Petitioner has raised is that the motion of no confidence along with the requisition is to be mandatorily served on the person against whom motion of no confidence is proposed to be moved. Reliance is placed on the said Rules. The relevant Rule is Rule 2(b) of the said Rules. Rule 2(b) provides that as far as possible the notice is to be served on the Sarpanch or Upa-Sarpanch as the case may be and if the said person is not available, then the same can be served on any adult member of the family of such person. It is the case of the Respondents that as the Petitioner-Sarpanch was not available, the notice has been served on her adult son and accordingly, a Panchanama was drawn. The said Panchnama specifically records that what is informed to the Panchas is that the Petitioner is not available, she is not well and has been admitted at Sangli. Therefore, notice has been served on her son i.e. Sharad Vilas Mahargude. Admittedly, said Sharad Vilas Mahargude is an adult.

19. It is significant to note that the Petitioner has annexed to this Writ Petition the notice dated 12th July 2023 issued by the Tahsildar, Atpadi addressed to all the members of the Gram Panchayat and the copy annexed to the Writ Petition as Exhibit B (Page 26) is specifically marked to the Petitioner. The said notice specifically directs the Talathi to serve the same along with the copy of Notices on the Petitioner. On the rear side of the said Notice, the Petitioner’s son has signed and Gram Sevak’s signature also appears. It is very significant to note that the Petitioner has annexed to this Writ Petition a copy of Notice which has been specifically marked to her and no explanation is given for custody of said Notice. Thus, it is clear that the Petitioner has been served with the said Notice through her son who is an adult. Thus, there is compliance with the provisions of the said Rules regarding service of Notice.

20. The Petitioner has also raised the contention that the signature as appearing on the rear side of the Notice is not the signature of the Petitioner’s son. The Petitioner’s son has filed Affidavit stating that the signature is not his signature. It is also contended that the son is also residing separately from his mother. An affidavit of the Petitioner’s husband has also been filed to the effect that on 13th July 2023 he was present in the house for entire day and no one visited the house on that day. However, Panchanama is drawn when the notice was served on the Petitioner’s son and therefore, said contentions are disputed questions of fact and therefore, the Writ Court cannot go into those aspects. The Collector has come to the conclusion that the Petitioner has been properly served. There is no perversity or illegality in the said finding.

21. The Petitioner has raised other contentions that number of copies of the notice which are required to be given and several other requirements are not complied with. However, there is nothing on record to show that the said requirements are not complied with. In any case, the same are not mandatory requirements.

22. It is the contention of the Petitioner that Section 35(2) of the said Act provides that Sarpanch or Upa-Sarpanch against whom motion of no confidence is to be passed, shall have the right to sit and vote and also to speak in the meeting convened to consider such a motion. It is the Petitioner’s submission that the said right is violated. However, factual position on record clearly shows that inspite of receipt of Notice, the Petitioner has remained absent in the meeting which was held on 17th July

2023. It is further significant to note that in the said meeting, seven members out of total nine members, who were for the time being entitled to sit and vote at the meeting of the Panchayat, passed the motion of no confidence and the same is greater than the requirement of three-fourth of total number of members.

23. In this particular case, the discussion herein above shows that the Petitioner has failed to establish any departure from the procedural requirements. In this particular case, admittedly seven members out of nine members have voted in favour of motion of no confidence and no case is made out that there is no overwhelming majority of three-fourth members that voted in favour of the motion. The observations in the decision of Prabhawati Vijaykumar Khivsara (supra) to the effect that unless it is shown that while passing such a resolution of No Confidence Motion, there was flagrant violation of any of mandatory procedure laid down, such a resolution cannot be interfered with by the Court or statutory authorities adjudicating such disputes are squarely applicable to this case.

24. Accordingly, no interference in the impugned Order under Article 227 of the Constitution of India is warranted. The Writ Petition is dismissed, however with no order as to costs.

26. At this stage, a request is made by Mr. Kapse, learned Counsel appearing for the Petitioner to continue the ad interim relief. However, the said request is rejected. [MADHAV J. JAMDAR, J.]