When a provision is treated as mandatory or directory?

The tools or cannons for interpretation as also the indices in so far 
as to whether a provision is directory or mandatory are well settled over a long 
period of time.   To put it simply a provision is said to be directory if the act  

complained of is valid though may result in some penal consequences but is 
mandatory if an act done in breach thereof is termed as invalid.  The leading 
case on  the   said aspect is  Rani  Drigraj  Kuer v/s.  Raja  Sri  Amar Krishna  

Narain Singh  . However, it is well settled in so far as mandatory provisions are 

concerned which result in nullification of the act if not complied with, there 
are exceptions to the same. Even in respect of provisions which can be said to 
be directory, there are exceptions namely that even if the directory provision is 
not complied at all, the same would not affect the validity of the Act.  However 
the test whether the acts committed in breach of the provisions are valid or 
invalid also depends upon the intent of the legislature and not only upon the 
language of the enactment. 
It is also well settled that whilst interpreting the provisions, the 
intent of the legislature would have to be seen, as the intent of the legislature 
is also one of the indices for coming to a conclusion as regards the nature of 
the provisions.  
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE JURISDICTION
LETTERS PATENT APPEAL NO.312 OF 2013
IN
WRIT PETITION NO.6967 OF 2012

Shri Tatyasaheb Ramchandra Kale

versus

Sou. Surekha Ravindra Kambale

CORAM :
MOHIT S. SHAH, C.J., 
R. M. SAVANT,  &
M. S. SONAK,  JJ.

Pronounced on

09th October 2014
Citation;2014(6) MHLJ 804



The issue which at most times is central to a challenge to an order 
1
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   24 th 
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  .     In   the   said   context,   it   would   be 
 1
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.   

In   the   said   case   the   Minutes   recorded   by   the   Tahsildar   in   the 
2
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 non­compliance 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   ,   held   that   the 

2 2011 (3) Mh. L.J. 500

mandatory nature of Rule 17 has already been answered by the full bench and 
is   therefore   no   more   res­integra.     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.  
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  prescribed form. 
Thereafter another notice was submitted to the Tahsildar by the Respondent 
Nos.1 to 13.   The Tahsildar convened a special meeting of the Panchayat on 
12/3/2012  for  considering the  motion  of  no confidence.    The  meeting  was 
attended by all 17 members of the Panchayat.   The motion of no confidence 
was passed by 13 members who voted in favour of the motion of no confidence 
by   raising   their   hands.     After   the   said   motion   was   passed,   the   Appellant 
challenged the decision by filing a Dispute under Section 35(3B) of the BVP Act 

before the Additional Collector.  The Dispute Application was dismissed by the 
Additional   Collector.   Aggrieved   by   the   said   decision,   the   Appellant   had 
preferred an Appeal before the Divisional Commissioner, Pune. The said Appeal 
was also rejected.  The said orders passed by the Additional Collector and the 
Divisional   Commissioner,   Pune   were   impugned   by   the   Appellant   by   filing   a 
Petition   being   Writ   Petition   No.6967   of   2012.     In   the   said   Petition,   the 
challenge which was raised to the resolution passed was on two grounds i.e. 
violation   or   contravention   of   Section   35   (3A)   of   the   BVP   Act   and,   non­
compliance of Rule 17 of the Meeting Rules in the matter of motion not being 
proposed and seconded.    In so far  as  the  first contention  is concerned,  the 
learned Single Judge of this Court who heard the said Petition rejected the said 
contention. In so far as the second ground is concerned, viz. that the motion 
was not proposed and seconded and was put directly to the vote, the learned 
Single Judge, in view of the divergence of views of the learned Single Judges of 
this Court on the aspect as to whether Rules were mandatory or directory, and 
in view of the fact that the issue was referred to the larger bench by a learned 
Single Judge of this Court, was of the opinion that the matter was required to 
be considered, and therefore, granted Rule. In so far as the interim reliefs were 
concerned, the learned Single Judge held that in view of the deeming fiction 
attached to Section 35 (3D) of the BVP Act after the rejection of the Appeal 
filed by the Appellant before the Commissioner, the post of Sarpanch was fallen 
vacant and therefore the learned Single Judge refused to grant interim reliefs. 

That part of the order refusing the interim reliefs was challenged by way of the 
above LPA which had come up before a Division Bench of this Court comprising 
of A.S. Oka & S C Gupte, JJ.   Before the Division Bench strong reliance was 
placed on the judgment of another Division Bench (A. M. Khanwilkar and K. K. 
Tated, JJ) in Vishnu Ramchandra Patil's case. The Division Bench of A.S Oka 
& S.C.Gupte, JJ considered the relevant statutory provisions i.e. the BVP Act, 
Meeting Rules, Motion of No Confidence Rules as also conspectus of Case Laws 
cited before them and observed that it was not possible for them to agree with 
the interpretation of Rule 17 as propounded by the Division Bench in  Vishnu  
Ramchandra Patil's case.  In the context of the present reference the relevant 
Paragraphs of the order of reference are Paragraphs 20, 23, 24 and 25 which 
for the sake of ready reference  are reproduced herein under :­

“20 We are afraid we are unable to subscribe to the 
above reasoning or persuade ourselves to come to the 
conclusions arrived at by the learned Division Bench in 
the   case   of   Vishnu   Ramchandra   Patil   (supra).   In   the 
first   place,   we   have   not   come   across   any   judgment 
which holds that Rule 17 is mandatory for the purpose 
of  all  other  motions  (i.e.  other   than   a   no  confidence 
motion).   That   is   the   major   premise   of   the   Division 
Bench judgment. There is no support of authority for 
that   premise.   Even   the   other   proposition   in   the 
reasoning of the Division Bench (namely, that the issue 
regarding the mandatory or directory nature of Rule 17 
has   already   been   answered   by   the   Full   Bench)   runs, 
with utmost respect, counter to the dictum of the Full 
Bench in Vishwas Pandurang Mokal (Supra). What the 
Full   Bench   held   was,   the   question,   as   to   the 
consequence   of   non­compliance   with   any   Rule,   will 
have to be decided in each case after considering the 
nature of the provision. Besides, in particular reference 

to the mandatory or directory nature of Rule 17 itself or 
the   consequence   of   non­compliance   therewith   on   the 
validity   or   otherwise   of   a   no   confidence   motion,   the 
Full Bench in terms observed that it was not deciding 
that question, since the same was not referred to it. 

Going by these indices, the basic object of the Act 
may   now   be   seen.   The   object   is   to   establish   village 
panchayats   for   any   village   or   group   of   villages   and 
invest them with such powers and authority as may be 
necessary to enable them to function as units of local 
self­government. These units are expected to function 
democratically   and   within   the   framework   of   the   Act. 
Sub­ section (3) of Section 44 of the Act provides as 
follows: 
“44(3) 
No act or proceedings of a Panchayat 
shall be deemed to be invalid on account of any 
defect   or   irregularity   in   any   such   act   or 
proceeding not affecting the merits of the case or 
on account of any irregularity in the service of 
notice   upon   any   member   or   for   mere 
informality.”
One must now have regard to the  special position of 
the Sarpanch and Upa­ sarpanch of a panchayat. Under 
Section   38   of   the   Act,   the   executive   power,   for   the 
purpose of carrying out the provisions of the Act and 
resolutions   passed   by   a   Panchayat,   vests   in   the 
Sarpanch who shall be directly responsible for the due 
fulfillment of the duties imposed upon the Panchayat by 
or under the Act. In the absence of the Sarpanch, the 
powers and duties of the Sarpanch shall, save as may 
be   otherwise   prescribed   by   rules,   be   exercised   and 
performed   by   the   Upa­sarpanch.   Consistent   with   this 
pre­eminent   position   of   the   Sarpanch   and   the   Upa­ 
sarpanch vis­a­vis the Panchayat, the Act makes special 
provisions   for   (1)   election   of   Sarpanch   and   Upa­
sarpanch,   (2)   resignation   by   Sarpanch   and   Upa­
sarpanch and (3) vacation of the office of the Sarpanch 
and Upa­sarpanch by motion of no confidence passed 
by the Panchayat. The motion of no confidence must be 
passed   by   a   requisite   majority.   If   the   motion   is   so 
passed, the Sarpanch or Upa­sarpanch, as the case may 

be, subject to other safeguards such as upholding the 
validity   of   the   motion   by   the   Collector   and   the 
Commissioner,   shall   be   deemed   to   have   vacated   his 
office. The main idea behind the nature and design of 
the statute seems to be the electoral legitimacy of the 
office of the Sarpanch and Upa­sarpanch. If the elected 
Sarpanch or Upa­sarpanch has lost confidence of two 
third majority of the house of the Panchayat, he shall be 
deemed to have vacated his office. The whole object of 
this   legislation   will   be   defected   if   it   is   held   that   by 
reason of a formal defect, namely, though a motion of 
no   confidence   is   carried   by   two   third   majority, 
member/s proposing the  motion  not formally moving 
or seconding it, as required by Rule 17, would render 
the motion legislation. 

There is one more aspect which must bear on the 
subject.   Perusal   invalid,   defeating   the   will   of   the 
majority, and thereby the very object of the of Section 
35 shows that the meeting held thereunder is a special 
meeting,   which   is,   unlike   any   other   meeting,   not 
presided over by the Sarpanch or Upa­sarpanch or any 
other member in their absence. It is presided over by 
the Tahsildar. The only purpose of that meeting is to 
consider   the   no   confidence   motion.   The   statute   only 
lays stress on the carrying of the motion by a requisite 
majority.   On   the   other   hand,   Rule   17   is   part   of   sub­
ordinate legislation and cannot be so interpreted as to 
negate the legislative intent of the principal legislation. 

25  There is yet another important consideration. As 
held   by   the   Supreme   Court   in   the   case   of   K. 
Narasimhaih   (supra),   the   question   whether   the 
violation   of   the   provision   or   irregularity   prejudicially 
affected the proceedings has an important bearing on 
the subject. As in the case of K. Narasimhaih (supra), 
even in our case there is an express provision (Section 
44(3) of the Act quoted above) to the effect that no act 
or proceedings shall be invalid on account of any defect 
or irregularity not affecting the merits of the case. Can 
it   be   said   that   in   the   present   case,   the   defect   or 
irregularity   affects   the   merits   of   the   case?   Are   the 
proceedings of the meeting, which carried the motion 

by the requisite majority, prejudicially affected by the 
irregularity   complained   of?   The   answer   must   be   a 
resounding   no.   The   meeting   of   the   Panchayat   was 
attended   by   all   members.   All   13   members,   who   had 
given   the   notice   of   the   no   confidence   motion,   were 
present in the meeting. In their presence, the motion 
was proposed for voting by the presiding officer of the 
meeting.   Everyone   including   the   Sarpanch,   against 
whom the motion was proposed, was allowed to freely 
participate in the meeting. A free and fair voting took 
place and the motion was carried by not less than two 
third majority. Failure to formally move and second the 
motion can hardly be said to prejudice anyone or affect 
the legitimacy of the whole exercise. ”

The Division Bench thereafter in Paragraph 27 framed the issue 
which has already been adverted to herein above in the instant judgment.
The   aforesaid   is   therefore   the   factual   backdrop   in   which   a 
reference has been made to a larger bench.
5
The   judgment   of   the   full   bench   of   this   Court   in  Vishwas  
Pandurang Mokal's case would also be one of the aspects which would have to 
be taken into consideration whilst answering the reference. It would therefore 
be apposite to refer to the said judgment.  However, prior thereto, it is required 
to be noted that since there were divergence of views of the learned Single 
Judges of this Court on the question as to whether Rule 17 of the Meeting 
Rules   is   mandatory   or   directory,   it   would   be   necessary   to   refer   to   the   said 
decisions in brief. In the case of  Vijay Ramchandra Katkar Vs Group Gram  

Panchayat Pali and others3, a learned Single of this Court (R.C.Chavan, J) 
held that Rules 17  and 18  are   mandatory  and any  failure  to  observe  these 
provisions vitiates the entire proceedings. In case of Vishnu R Patil v/s. Group  
Gram   Panchayat,   Kharivali,   in  Writ   Petition   No.167   of   2011   and   ors 
decided   on   26th  July   2011   another   learned   Single   Judge   of   this   Court 
( S.C.Dharmadhikari, J) held that Rule 17 is directory.  In the case of Waman  
Shankar Doltade v/s State of Maharashtra  in  Writ Petition No.10298 of  
ig
2011  decided   on   28th  November   2011   another   learned   since   Judge   of   this 
Court (G.S.Godbole, J) dis­agreed with the view taken in  Vijay Ramchandra  
Katkar's case and referred the matter to  a larger bench of this Court. 
Now coming to the full bench judgment in  Vishwas Pandurang  
6
Mokal's case (supra).  The said Reference to the full bench was made in view 
of the divergence of views as to whether the Meeting Rules are applicable to a 
meeting convened under Section 35 of the BVP Act for consideration of passing 
of motion of no confidence against a Sarpanch.   The full bench in  Vishwas  
Pandurang Mokal's case answered the reference by holding that the Meeting 
Rules are applicable to a meeting convened under Section 35 of the BVP Act. 
The relevant paragraph of the judgment of full bench is Paragraph 17 which for 
the sake of ready reference is reproduced herein under :­
“17. 
Thus,   Rule   17   provides   that   the   person 
who has submitted notice of the motion shall move the 
3 2010(4) Mh. L.J. 497

motion   in   the   meeting.   Rule   20   deals   with   how 
amendments to the motion can be proposed. Rule 21 
deals   with   how   a   person   who   wants   to   speak   on   a 
motion has to address. What should be the duration of 
the speech and what is the decoram to be followed in 
speaking   at   the   meeting.   Thus,   in   these   Rules 
provisions in detail have been made for the conduct of 
the   meeting   both   ordinary   and   special   of   the   village 
panchayat.  Perusal of the No Confidence Motion Rules 
shows   that   they   do   not   contain   any   provision   in 
relation to the conduct of the meeting. Provisions for 
conduct of the meeting of the village panchayat are to 
be   found   in   the   Meeting   Rules.   The   manner   of 
submitting   a   requisition   for   convening   a   special 
meeting of the village panchayat to consider motion of 
no confidence against the Sarpanch or Up­Sarpanch is 
to be found in sub­section 1 & 2 of Section 35 and the 
No Confidence Motion Rules. But neither in Section 35 
nor   in   the   No   Confidence   Motion   Rules   we   find 
provisions made as how many days notice should be 
given   to   the   members   of   the   Special   meeting   to   be 
convened under Section 35. Therefore, in our opinion, 
for that purpose one will have to follow the provisions 
of the Meeting Rules because they lay down as to how 
many days notice of special meeting is to be given to 
the members. Section 35 provides that the Sarpanch or 
Up­Sarpanch against whom the motion is to be moved 
is entitled to attend and participate in the meeting, and 
he is entitled to speak at the meeting. But there is no 
provision to be found made in Section 35 or in the No 
Confidence Motion Rules as to the manner in which the 
Sarpanch   or   Up­Sarpanch   can   exercise   his   right   to 
participate   and   speak   at   that   meeting.   Provisions   for 
that   purpose   are   to   be   found   in   the   Meeting   Rules. 
Neither Section 35 nor No Confidence Motion Rules lay 
down as to what is to be done if the requisite quorum 
is not present at such meeting. But the Meeting Rules 
contain  provisions  in  that  regard.   Neither  Section   35 
nor   No   Confidence   Motion   Rules   makes   provision 
dealing with the situation when the members present 
in the meeting disregard the authority of the presiding 
officer. Those provisions are to be found in the Meeting 
Rules. In our opinion, therefore, there is no reason why 
the provisions of the Meeting Rules to the extent that 

no contrary provision is made either in the Act itself or 
in the No Confidence Motion Rules should not apply to 
a meeting called under Section 35. In our opinion, if 
the   provisions   of   the   Meeting   Rules   are   held   to   be 
applicable to a meeting called under Section 35, it will 
facilitate   holding   of   meeting   under   Section   35 
effectively. Therefore, in our opinion, it can be safely 
said that the provisions of the Meeting Rules generally 
apply to a special meeting convened under Section 35. 
However, such provisions of the Meeting Rules which 
are  found  to  be   contrary  to   the   provisions  contained 
either in the Act in relation to the holding of the special 
meeting for consideration of motion of no confidence 
against   Sarpanch   or   Up­Sarpanch   or   in   the   No 
Confidence Motion Rules would not apply to a meeting 
called under Section 35. Now taking up the question 
whether   specifically   provisions   of   Rule   17   of   the 
Meeting Rules apply to a meeting called under Section 
35   is   concerned,   in   our   opinion,   the   provisions   of 
Section 17 will apply in a meeting called under Section 
35. As observed above Section 35 contains a provision 
for   submission   of   requisition   by   members   to   the 
Tahsildar   for   calling   a   special   meeting   of   the   village 
panchayat   to   consider   the   motion   of   no   confidence 
against Sarpanch or Up­Sarpanch. It casts a duty on the 
Tahsildar   to   call   a   meeting   for   that   purpose   within 
seven days of the receipt of the requisition. But 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 Up­Sarpanch concerned shall have 
a right to attend and participate in that meeting. We 
have   already   observed   above   that   perusal   of   No 
Confidence   Motion   Rules   and   the   Form   of   the 
requisition shows that when the members of the village 
panchayat   submit   the   requisition   to   the   Tahsildar   , 
what they actually do is that they request the Tahsildar 
to convene a special meeting of the village panchayat 
so that in that meeting they can move a motion of no 
confidence   against   Sarpanch   or   Up­Sarpanch.   It   is, 
thus, clear that moving of the motion of no confidence 
is not by submission of requisition to the Tahsildar. The 
requisition   is   only   for   calling   a   special   meeting   to 
facilitate   moving   of   motion   of   no   confidence.   The 
motion   of   no   confidence   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 Meeting Rules 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. 
Therefore, concept of convening a special meeting of 
the village panchayat as a consequence of requisition 
received   from   the   members   is   to   be   found   in   the 
Meeting Rules itself and therefore, all those provisions 
contained in 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  specific 
contrary provision in the Act or in the No Confidence 
Motion Rules. 

Perusal   of   the   provision   of   sub­section   3A   of 
Section   35   shows   that   provision   makes   difference 
between moving of a motion and carrying of a motion 
by requisite  majoirity.  Provision  of  sub­section  3­A of 
Section 35 reads as under: 
(3­A) If a motion (is not moved or is not carried) by (a 
majority of not less than two­third of) (or, as the case 
may   be,   three­fourth,   of   )   the   total   number   of   the 
members who are for the time being entitled to sit and 
vote   at   any   meeting   of   the   panchyat,   no   such   fresh 
motion shall be moved against the Sarpanch, or, as the 
case may be, the Upa­Sarpanch within, a period of (one 
year) (from the date of such special meeting. 
It is clear that in a special meeting of the village 
panchayat   called   for   the   purpose   of   consideration   of 
motion of   no confidence against the Sarpanch or Up­
Sarpanch, a motion is to be moved in the meeting.”
The submission urged on behalf of the Appellant based on the Division Bench 
judgment   in  Vishnu   Ramchandra   Patil's  case   which   in   turn   heavily   relied 
upon   the   judgment   of   the   full   bench   in  Vishwas   Pandurang   Mokal's  case 

(supra), would be taken up a bit later.
Heard the learned counsel for the parties i.e. Shri C G Gavnekar 
for the Appellant, Shri S S Patwardhan for the Respondent No.1 and Shri A B 
Vagyani for the Respondents/State.  
It  was   the   submission   of   Shri   C  G   Gavnekar   that   since  the  full 


bench of this Court has held that the Meeting Rules would be applicable which 
includes Rule 17, there would have to be strict compliance of the said Rules as 
otherwise the proceeding of the meeting for consideration of the motion of no 
confidence would stand vitiated.  The learned counsel would further contend 
that the Village Panchayat being a corporate entity, its affairs are governed by 
the   resolutions   passed   in   its   meetings.     The  learned   counsel  would   seek  to 
draw   analogy   and   thereby   seek   support   from   the   manner   in   which   the 
companies   under   the   Companies   Act   conduct   their   affairs   is   by   passing   of 
resolutions   which   are   proposed   and   seconded   as   also   the   transaction   of 
business in Parliament where the motion has to be proposed and seconded.  It 
was therefore the submission of the learned counsel that unless the motion is 
proposed and seconded, the resolution that would be passed in the meeting 
would be invalid. The learned counsel would contend that having regard to the 
fact that the motion is required to be passed in respect of the person who has 
been elected as a Sarpanch the prejudice test cannot be applied and there has 

to be a strict compliance of the Rules as the consequences of a no confidence 
motion are drastic as it results in removal of the Sarpanch, reliance was sought 
to  be   placed  on  the   judgment   of   the   Apex   Court  in  Sadashiv  H  Patil  v/s.  

Vithal D Teke and ors  .  The learned counsel by relying upon Rule 39 further 
 4
sought to contend that passing of the resolution by proposing and seconding it 
was mandatory. 
The learned Government Pleader Shri A B Vagyani supported the 
contentions urged by the learned counsel for the Appellant Shri C G Gavnekar. 
The   learned   Government   Pleader   would   state   that   the   stand   of   the   State 
Government is also that the compliance of Rule 17 is mandatory.  In so far as 
Section 44(3) of the BVP Act is concerned, the learned Government Pleader 
would contend that the same is applicable to the proceedings mentioned in the 
said Rule and is not applicable to a meeting held for considering a motion of 
no confidence.
10
Per contra, the learned counsel appearing for the Respondent No.1 
Shri S S Patwardhan would contend that the reliance placed on the full bench 
judgment   in  Vishwas   Pandurang   Mokal's  case   to   contend   that   Rule   17   is 
mandatory is misplaced. The learned counsel would contend that the Division 
Bench of this Court in Vishnu Ramchandra Patil's case has erred in coming to 
a conclusion that the issue as to whether Rule 17 is directory or mandatory is 
4 (2000) 8 SCC 82

concluded by the full bench and therefore the said issue is no more res­integra. 
The learned counsel would contend that the Reference to the full bench is only 
as regards applicability of the Meeting Rules, and the full bench has therefore 
in terms observed that whether the Rule is directory or mandatory was not 
before it for consideration.  The learned counsel having regard to the statutory 
provisions would contend that the Meeting Rules being sub­ordinate legislation 
an interaction thereof cannot have an impact if the conditions mentioned in 
the substantive provisions are satisfied viz. if the resolution is moved by 1/3 rd 
of the members and passed by 2/3rd  of the members entitled to sit and vote. 
The learned counsel would contend that ultimately it would have to be seen 
what prejudice has been caused on account of infirmity in the proceeding and 
the   resolution   cannot   be   nullified   merely   on   the   ground   that   there   was   a 
procedural non­compliance of the rules.  
At this stage, a reference to the provisions which are in contention 
for answering the reference would have to be made.  The said BVP Act can be 
said to be  formulated in  furtherance  of the  policy of  encouraging local  self 
government at the grass root level and can be said to epitomize the policy of 
the   government   in   that   regard.     The   endeavour   is   to   establish   a   village 
panchayat in every village or group of villages and investing them with such 
powers and authority as may be necessary to enable them to function as units 
of local self government for carrying out development activities in rural areas, 
and for certain other matters.  The Sarpanch is therefore a pivot between the 
village administration, the district administration and the State administration. 
His   role   therefore   in   the   affairs   of   the   village   assumes   importance.     It   is 
considering the importance of the said post that the provisions have been made 
for   his   election   as   well   as   removal.   The   question   which   has   been   referred 
therefore revolves around the removal of the Sarpanch.  In the said context it 
A]
would be necessary to notice the following statutory provisions. 
Sections 30(1), 35 & 44(3)  of the BVP Act :­
“30. Election of Sarpanch :­ (1) Every Panchayat shall 
be presided over by a Sarpanch who shall be elected by, 
and from amongst, the elected members thereof.”
...............................
(4) ...............................
(5) ...............................
(3) (2) ...............................
(6) ...............................
"35.  Motion  of  no   confidence  :­  (1)   A motion  of   no 
confidence may be moved by not less than one third of 
the total number of the members who are for the time 
being   entitled   to   sit   and   vote   at   any   meeting   of   the 
Panchayat  against   the   Sarpanch   or   the  Upa­Sarpanch 
after giving such notice thereof to the Tahsildar, as may 
be   prescribed.   Such   notice   once   given   shall   not   be 
withdrawn. 
(2)  Within seven days from the date of receipt 
by   him   of   the   notice   under   sub­section   (1),   the 
Tahsildar   shall   convene   a   special   meeting   of   the 

Panchayat for considering the motion of no confidence 
at the office 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   Upa­Sarpanch 
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 a majority of not 
less than two­third of the total number of the members 
who are for the time being entitled to sit and vote at 
any meeting of the Panchayat or the Upa­Sarpanch, 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   Upa­Sarpanch   shall   be   deemed   to   be 
vacant. 
Provided that, where the office of the Sarpanch 
being   reserved   for   a   woman,   is   held   by   a   woman 
Sarpanch,   such   motion   of   no­confidence   shall   be 
carried only by a majority of not less than three­fourth 
of the total  number of the members who are for the 
time being entitled to sit and vote at any meeting of the 
Panchayat; 
Provided   further   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   [is   not   moved   or   is   not 
carried] by [a majority of not less than two­third of] 
[ or, as the case may be, three fourth, of] [***] the total 
number of the members [* * *] 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

(3B)  If the Sarpanch or, as the case may be, the 
Upa­Sarpanch   desires   to   dispute   the   validity   of   the 
motion carried under sub­section (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.
Sarpanch within a period of [one year from the date of 
such special meeting.] 

(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 
sub­section (3B), the Collector upholds the validity of 
the   motion   carried   under   sub­   section   (3)   and   no 
appeal is made by the Sarpanch or the Upa­Sarpanch 
sub­section (3C) within the limitation period specified 
in that sub­ section, or where an appeal is made under 
sub­section (3C) but it is rejected by the Commissioner, 
the Sarpanch or, as the case may be, the Upa­Sarpanch 
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 Upa­Sarpanch shall be deemed to 
be vacant.] 
44. Vacancy   not   to   affect   proceedings   of  
Panchayat :­

[(1)   During   any   vacancy   in   the   Panchayat   the 
continuing   members   may   act   as   if   no   vacancy   had 

(2) [Subject   to   the   provisions   of   sub­section 
(1­A) of Section 145, the Panchayat] shall have power 
to act notwithstanding any vacancy in the membership 
or   any   defect   in   the   constitution   thereof;   and   such 
proceedings   of   the   Panchayat   shall   be   valid 
notwithstanding that it is discovered subsequently that 
some person who was not entitled to do so sat or voted 
or otherwise took part in the proceedings.
occurred.
(3)  No act or proceedings of a Panchayat shall 
be deemed to be invalid on account of any defect or 
irregularity in any such act or proceeding not affecting 
the merits of the case or on account of any irregularity 
in the service of notice upon any member or for mere 
informality”.
B]
Rule 2 of the Bombay Village Panchayats Sarpanch and Upa­
sarpanch   (No   Confidence   Motion)   Rules,   1975   (for   short   "the   No  
Confidence Motion Rules") : 
"2(1) 
The members of a panchayat who desire to 
more a motion of no confidence against the Sarpanch 
or the Upa­Sarpanch shall given notice thereof in the 
form appended hereto to the tahsildar of the taluka in 
which   such   panchayat   is   functioning.   Where   the 
members desire to move the motion of no­confidence 
against the Sarpanch as well as the Upa­Sarpanch, they 
shall give two separate notices. 
(2) 
The   notice   under   sub­rule   (1)   shall   be 
accompanied   by   seven   additional   copies   thereof,   and 
the Tahsildar shall send one copy to the Sarpanch, one 
to the Upa­Sarpanch and one each to the Zilla Parishad, 
the   Panchayat   Samiti,   the   Collector   and   the 
Commissioner.   One   copy   shall   also   be   given   to   the 
Secretary. 
(3) 
The Tahsildar shall, immediately on receipt 
of   notice   under   sub­rule   (1),   satisfy   himself   that   the 

notice has been given by not less than one third of the 
total   number   of   members   (other   than   associate 
members) who are for the time being entitled to sit and 
vote at any meeting of the panchayat and then convene 
a   special   meeting   for   the   purpose   within   seven   days 
from the date of receipt of such notice." 

C]   Rules   2(c),   16,   17,   18,   23   28,   38   and   39   of   the   Bombay   Village  
Panchayats (Meeting) Rules, 1959 :
"2(c) "motion" means a proposal made to evoke action 
on   the   part   of   the   panchayat,   and   includes   an 
amendment of a motion." 
16.  A matter requiring the  decision  of  the  panchayat 
shall   be   decided   by   means   of   a   question   put   by   the 
person presiding on a motion made by a member. 
17.  (1) 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. 
(2)  If   a   member   when   called   is   absent,   any   other 
member   may,   with   the   permission   of   the   person 
presiding, move the motion standing in the name of the 
absent   member.   If   permission   is   not   granted   to   the 
other   member   to   move   the   motion,   the   motion   shall 
lapse. 
18  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. 

23  After   a   motion   has   been   placed   before   the 
meeting   for   consideration   under   Rule   18,   the   mover 
may speak in support of the motion and the seconder 
may either follow or reserve his speech for a later stage 
of the debate thereon. 

(1) Votes shall ordinarily be taken by word of 
motion or by a show of hands but may, if the majority 
of members present so decide, be taken by ballot.
(2) Any   member   present   at   a   meeting   may 
refrain from voting if he so chooses

38
The person presiding shall have power to divide 
motion   into   two   or   more   distinct   motions   or   an 
amendment into two or more amendments, as he may 
deem necessary.
12
39  No   motion   shall   be   discussed   or   noted   in   the 
minute   book   unless   and   until   it   has   been   properly 
proposed and seconded, provided that a motion by the 
person presiding need not be seconded." 
The election of the Sarpanch from amongst the members of the 
Panchayat is provided by Section 30(1). The rest of the sub­sections of Section 
30 are not material for the present reference. A reading of Section 35 discloses 
that the legislature considering the importance of the post of Sarpanch and 
Upa­Sarpanch   has   advisedly   provided   safeguards   which   can   be   said   to   be 
inbuilt in Section 35.  In the context of passing of a motion of no confidence, 
the first safeguard is that the requisition has to be moved by not less than 1/3 rd 
of the members who are entitled to sit and vote.  The second safeguard is that 
the resolution has to be passed by 2/3 rd of the members who are entitled to sit 
and vote, which in respect of a woman Sarpanch is 3/4 th of the members who 
are entitled to sit and vote.   The said Section also provides that no motion 
could   be   moved   against   Sarpanch   or   Upa­Sarpanch   within   a   period   of   six 
months   from   the   date   of   election   of   Sarpanch   or   Upa­Sarpanch.     The 
underlying principle appears to be to lend stability in so far as the posts of 
Sarpanch and Upa­Sarpanch are concerned and to see to it that the elected 
body   functions   smoothly.   In   so   far   as   the   No   Confidence   Motion   Rules   are 
concerned, they prescribe the procedure and the manner in which the motion 

is to be moved and the action  to be taken by the Tahsildar after he receives a 
35(1) of the BVP Act.
Now   coming   to   the   Meeting   Rules,   they   have   been   framed   in 
requisition   from   1/3rd  of   the   total   number   of   members   in   terms   of   Section 
exercise of the powers conferred by Section 176 of the BVP Act. In Rule 2(C) 
the term “motion” is defined which means a proposal made to evoke action on 
the part of the panchayat and includes an amendment of a motion.  The notice 
issued under Section 35(1) is therefore referable to a proposal as contemplated 
in Rule 2(c) of the Meeting Rules. Rule 17 of the Meeting Rules, which is at the 
centre   of   the   debate   in   so   far   as   the   present   proceedings   are   concerned, 
postulates the manner in which the motion is to be moved and the lapsing 
thereof.   Pertinently the said Rule does not contain the consequences for the 
non­compliance   of   proposing   or   seconding   of   a   motion   of   no   confidence. 
Obviously the same could not have been provided for in view of the fact that 

they are the general rules applicable to all meetings of the Panchayat.
Then Rule 39 posits that no motion shall be discussed or noted in 
the minute book unless and until it has been properly proposed and seconded 
and contemplates that a motion by the person presiding need not be seconded. 
Reliance   was   sought   to   be   placed   on   the   said   Rule   39   on   behalf   of   the 
Appellant   to contend that since Rule 39 provides that motion could only be 
entered into if it is only proposed or seconded.  The  motion of no confidence 
which   is   sought   to   be   moved   has   therefore   to   be   proposed   and   seconded 
otherwise it is invalid.  Hence it is Section 35 which is the substantive provision 
which prescribes the pre­requisite for a valid motion of no confidence i.e. a 
requisition to be made by 1/3rd members who are entitled to sit and vote, and 
that the motion is carried by 2/3rd of the members who are entitled to sit and 
vote.   However, in so far as the starting point for passing of a motion of no  
confidence is concerned, it is the requisition which is made to the Tahsildar on 
the basis of which the Tahasildar acts. Though the full bench in     Vishwas  
Pandurang Mokal has held that motion is to be moved in the meeting, the fact 
that the requisition by 1/3rd  members is the cause for the meeting cannot be 
lost sight of.  In fact the moving of the requisition can be said to be a part of  
the right to move the no confidence motion, which is given by the statute.  The 
Meeting Rules as indicated above are the general rules applicable to all the 
meetings of the panchayat. In respect of the other business of the Panchayat, 

may be the resolutions are required to be proposed and seconded, however, in 
so far as motion of no confidence is concerned, a special meeting is convened 
by the Tahasildar, only for the said purpose, and the pre­requisite for the same 
is   1/3rd  members   requisitioning   the   said   meeting.   Hence   in   our   view,   the 
requirements of Section 35(1) and (3) of the BVP Act, therefore, can be said to 
dent the requirement of the strict compliance of Rule 17 in the matter of the  
motion of no confidence being proposed and seconded.  It is also required to 
be noted that the No Confidence Motion Rules do not provide for any such 
requirement   of   the   motion   being   proposed   or   seconded.     Hence   when   the 
special rules do not provide for the same, a strict compliance of the general 
rules, for meetings is not expected.  In so observing, we are not, for a moment, 
questioning the applicability of the Meeting Rules, but we are only answering 
the question as to what effect the non compliance of Rule 17 in the matter of 
proposing and seconding the motion has on the validity of the no confidence 
motion. Hence it is not necessary to draw parallels between how the business is 
conducted in Parliament, by the Companies registered under the Companies 
Act   and   the   meeting   of   the   panchayat   held   for   passing   of   a   no   confidence 
motion.
The tools or cannons for interpretation as also the indices in so far 
as to whether a provision is directory or mandatory are well settled over a long 
period of time.   To put it simply a provision is said to be directory if the act  

complained of is valid though may result in some penal consequences but is 
mandatory if an act done in breach thereof is termed as invalid.  The leading 
case on  the   said aspect is  Rani  Drigraj  Kuer v/s.  Raja  Sri  Amar Krishna  

Narain Singh  . However, it is well settled in so far as mandatory provisions are 

concerned which result in nullification of the act if not complied with, there 
are exceptions to the same. Even in respect of provisions which can be said to 
be directory, there are exceptions namely that even if the directory provision is 
not complied at all, the same would not affect the validity of the Act.  However 
the test whether the acts committed in breach of the provisions are valid or 
invalid also depends upon the intent of the legislature and not only upon the 
language of the enactment. 
It is also well settled that whilst interpreting the provisions, the 
intent of the legislature would have to be seen, as the intent of the legislature 
is also one of the indices for coming to a conclusion as regards the nature of 
the provisions.  At this stage, it would also be relevant to refer to Section 44 of 
the   BVP   Act   and   especially   subsection   (3)   thereof   which   has   already   been 
extracted herein above.  The test of the intention of the legislature and  Section 
36 of the Mysore Town Municipalities Act, which was akin to Section 44(3) of 
the BVP Act had come up for consideration before the Apex Court in the case of 

K. Narasimhiah v/s. H.C. Singri Gowda   on which strong reliance was placed 
 6
5 AIR 1960 SC 444
6 AIR 1966 SC 330

on   behalf   of   the   Respondent   No.1.   The   Apex   Court   in   the   said   case   was 
concerned with a rule of meetings under the Mysore Town Municipalities Act, 
1951.  The said Rule required giving of three days notice of a special meeting  
to discuss a resolution to express no confidence.   In the said case, the town 
municipality   had   20   councillors,   13   of   whom   had   sent   a   requisition   to   the 
President   to   convene   a   special   general   meeting   to   discuss   a   resolution 
expressing no confidence in the President.  The request was handed over to the 

President.  However, since the President did not take any steps for convening 
the meeting, the Vice President called a meeting to discuss the resolution.   A 
notice of that meeting was sent by the Vice President.   Whilst the notice was 
received by 15 of the 20 councillors in time (i.e. before 3 days), 5 councillors 
including the President received it late i.e. less than 3 days before the meeting. 
19   out   of   the   20   councillors   including   the   President   were   present   for   the 
meeting.     However,   it   seems   that   the   President   left   the   meeting   and   the 
meeting was, in his absence, chaired by the Vice President.  The no confidence 
motion was passed, with 15 councillors supporting the same.  The said motion 
was challenged in the High Court. The High Court rejected the Petition. The 
matter was carried before the Apex Court. The question before the Apex Court 
was  therefore  whether  the  requirement of  3 days' notice  was such that the 
failure to comply with it shall have the consequence of making what is done 
invalid in law. The Apex Court observed that the answer to the same lies in the 
intention   of   the  legislation  and  to  ascertain   the   intention,  the  Court  has  to 

examine carefully the object of the statute, the consequence that may follow 
from insisting on a strict observance of the particular provision and above all 
the general scheme of the other provisions of which it forms a part. Paragraph 
No.12 of the judgment is material and is produced herein under :­
ig
“The question then is : Is the provision of three clear 
days notice mandatory, i.e. does the failure to give such 
notice   make   the   proceedings   of   the   meeting   and   the 
resolution passed there invalid ?  The use of the word 
“shall” is not conclusive on the question. As in all other 
matters   of   statutory   construction   the   decision   of   this 
question   depends   on   the   ascertainment   of   the 
legislature's intention. Was it the legislature's intention 
in making the provision that the failure to comply with 
it shall have the consequence of making what it done 
invalid in law?  That is the question to be answered.  To 
ascertain   the   intention   the   Court   has   to   examine 
carefully the object of the statute, the consequence of 
the   particular   provision   and   above   all   the   general 
scheme   of   the   other   provisions   of   which   it   forms   a 
part.”
The Apex Court has also considered the effect of Section 36 of the Mysore Act 
which was akin to Section 44(3) of the Bombay Village Panchayats Act.  In the 
said context Paragraph No.20 of the judgment is material and is reproduced 
herein under :­
“We are, therefore, of opinion that the fact that some of 
the   Councillors   received   less   than   three   clear   days' 
notice   of   the   meeting   did   not   by   itself   make   the 
proceedings   of   the   meeting   or   the   resolution   passed 
there   invalid.     These   would   be   invalid   only   if   the 
proceedings   were   prejudicially   affected   by   such 
irregularity.  As already stated, nineteen of the twenty 
Councillors   attended   the   meeting.     Of   these   19,   15 
voted   in   favour   of   the   resolution   of   no­confidence 
against   the   appellant.   There   is   thus   absolutely   no 

reason for thinking that the proceedings of the meeting 
were prejudicially affected by the  “irregularity in  the 
service of notice.””

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 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 
Upa­Sarpanch   can   be   said   to   be   pivotal   to   the   functioning   of   the 
GramPanchayat, 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 Upa­Sarpanch are said to occupy that the provisions have 
been made as regards their election, resignation, vacation of the office of the 
Sarpanch   and   Upa­Sarpanch   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 Upa­Sarpanch so that the administration at the village level does 
not suffer.  However, if the Sarpanch or Upa­Sarpanch 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 2/3 rd  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 so far as the judgment in  Sadashiv H Patil's  case (supra) is 
concerned,   in   the   said   case,   the   Apex   Court   was   concerned   with   the 
disqualification   of   a   Municipal   Councillor   under   the   Maharashtra   Local 
Authority Members' Disqualification Act, 1986.   The scheme of the  said Act 
stands apart from the provisions as contained in the BVP Act.  Under the said 
Act an application for disqualification is contemplated.   The said application 

can be filed if a Councillor is alleged to have incurred a disqualification under 
Section 3 of the said Act.   The application has to be adjudicated in terms of 
Section 7 of the said Act and since the result of the disqualification if allowed is 
drastic, i.e. the Councillor ceases to be a Councillor, the Apex Court held that 
the provisions have to be strictly complied with. In our view, the said judgment 
would have no application as the scheme of the said Act stands apart from the 
provisions of the BVP Act.  Moreover, the Sarpanch against whom a motion of 

no confidence is passed, ceases to be a Sarpanch, but however continues to be 
a member of the GramPanchayat.
16
The issue has to be looked at from one more perspective.  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.  
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LPA­312.13
In the said context it would be gainful to refer to the judgment of 
17
the full bench of the Gujarat High Court in the matter of Nandlal Bavanjibhai  
Posiya and others v/s. Director of Agriculture Marketing and Rural Finance  

Gandhinagar and others  .  The issue before the full bench of the Gujarat High 
 7
Court   was,   whether   in   the   absence   of   express   provisions,   for   moving   and 
passing   of   a   no   confidence   motion   against   the   Chairman/Vice   Chairman   of 
ig
Agricultural   Produce   Market   Committee   under   the   Gujarat   Agricultural 
Produce Markets Act, 1963 and the Rules framed thereunder and the Chairman 
of Social Justice Committee under the Gujarat Panchayats Act and the Rules 
framed thereunder, such a motion can validly be passed.  In the said context, 
the full bench of the Gujarat High Court was required to interpret the words 
“ceasing   to   hold   the   office   for   any   reason”   in   Rule   33(2)   of   the   Gujarat 
Agriculture Produce Market Rules, 1965 would include “removal or recall of 
Chairman or Vice­Chairman by moving and passing of a no confidence motion 
against  him”.    The   full  bench  of   the   Gujarat  High   Court  held   that  removal 
cannot be restricted to merely the reason contained in the second proviso to 
sub­rule   (1)   of   Rule   33   i.e.   if   he   ceases   to   be   a   member   of   the   Market 
Committee, but the term “ceasing to hold office for any reason” is a term of 
wider   connotation   and   would   therefore   cover   situations   and   contingencies 
inclusive of the contingency covered by the second provision to sub­rule (1) of 
Rule 33.
7  AIR 2002 Gujarat 348
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The full bench of Gujarat High Court held that having regard to 
the statutory provisions applicable in relation  to the Chairman and/or Vice­
Chairman of the Market Committee, it can be said that if a holder of the office  
is elected by simple majority by the body in the requisite quorum, he can be 
removed   or   recalled   by   a   simple   majority   in   the   absence   of   any   provision 
providing such a course or prescribing any particular procedure for  moving the 
no confidence motion with a particular majority and passing the same by a 
ig
particular  majority.   Paragraphs 48, 51, 52, 62, 66, 68 and 72   of the said 
report are material and are reproduced herein under :­
48.   As   we   have   taken   note   of   the   Rules   and   quoted 
them above, election to the Office of the Chairman and 
Vice­Chairman   can   be   made   by   the   members   of   the 
Committee with quorum of l/3rd by simple majority. If 
the   election   to   the   Office   can   be   made   by   l/3rd 
members present as the quorum, by simple majority, a 
no­confidence   motion   to   remove   or   recall   a   member 
elected to the Office of Chairman or Vice­Chairman by 
simple majority with same 1/3 quorum is permissible 
and not expressly prohibited by either the provisions of 
the Act or the Rules. 
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51. Our conclusion, therefore, is that moving of a no­
confidence   motion   and   passing   the   same   by   simple 
majority is permissible and not expressly prohibited by 
either the provisions of the Agricultural Produce Market 
Act   or   the   Rules.   In   fact,   as   we   have   read   and 
construed,   under   Rule   33{2)   and   Rule   35   (quoted 
above)   passing   of   no­confidence   motion   against 
Chairman   and   Vice­Chairman   is   one   of   the   reasons 
contemplated in the Rules by which vacancy is created 
in those offices and which are required to be filled by 
the Director by calling a meeting of the Committee for 
the purpose. 
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52. On behalf of the petitioners, it is urged that under 
the Agricultural Produce Markets Act and the Rules, no 
procedure has been indicated for moving and passing a 
no­confidence motion and for grant, of opportunity to 
the   holder   of   the   elected   office   against   whom   the 
motion is moved. As we have examined the provisions 
of the Act and the Rules in detail and discussed them 
above,   the   contention   cannot   be   accepted   that   no 
procedure   is   indicated   under   which   a   no­confidence 
motion can be moved and passed. It is true that there is 
no express provision for a minimum prescribed number 
for moving a motion by the members and there is also 
no prescribed majority by which it can be passed, but as 
we have held above, in the absence of such a provision 
of a requisite majority for passing and moving it, no­
confidence motion like any other subject or agenda in a 
meeting, can be passed by simple majority. As we have 
held above, if the election in a meeting with requisite 
quorum can be made by simple majority to the post of 
Chairman/Vice­Chairman, a no­confidence motion can 
be moved and be passed by simple majority against the 
holder of the post. 
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62.   Taking   somewhat   a   different   view   from   the 
observations of the Delhi High Court in the case of Bar 
Council (supra), we have held that not as a common 
law right, but an inherent statutory right exists in the 
members of the elected body to remove its leader by 
no­confidence   motion   in   accordance   with   the   same 
procedure by which he is elected and in the absence of 
contrary   provision   in   the   law   governing   such   elected 
body, such right has to be read into the statute. 
66.  Our conclusion, therefore, both in relation to the 
Chairman and/or Vice­Chairman of Market Committee 
under   the   Agricultural   Produce   Markets   Act   and   the 
Rules   and   Chairmen   of   various   Committees   of 
Panchayats under the Panchayats Act and the Rules, is 
that if a holder of office is elected by simple majority by 
the  body  in  requisite  quorum, he  can be  removed or 
recalled   by   a   simple   majority,   in   the   absence   of   any 
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provision prohibiting such a course or prescribing any 
particular   procedure   of   moving   the   no­confidence 
motion with a particular majority and passing the same 
by a particular majority. 
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68.   In   construing   provisions   of   law   regulating   the 
constitution   and   working   of   an   elected   body,   such 
interpretation   should   be   preferred   which   ensures   its 
smooth functioning, and any other interpretation which 
might create hindrance or stalemate in its functioning 
needs to be avoided.
ig
72.   In   this   case,   11   Directors   of   Market   Committee 
Valsad   moved   no­confidence   motion   against   the 
Chairman,   A   meeting   was   duly   called   in   accordance 
with   Rule   26   of   the   Market   Committee   Rules.   The 
petitioner   was   present   in   the   meeting   concerned   for 
passing   no­confidence   motion   held   on   11­7­2001.   In 
the meeting even a charter of grievances and charges 
against   the   petitioner   for   his   alleged   misconduct   or 
misdeeds was given in writing, which is annexed with 
the connected Letters Patent Appeal filed by the same 
petitioner. Under   the  interim   protection  given  by this 
Court,   the   votes   given   in   die   said   meeting   had   been 
kept   in   sealed   cover   and   the   result   is   not   declared. 
Since,   we   have   come   to   the   conclusion   that   a   no­
confidence   motion   can   validly   be   passed   under   the 
existing provisions of the Act and the Rules, we vacate 
the   interim   orders   granting   interim   relief   to   the 
petitioner   and  direct  the   respondent  Authorities,  viz., 
the   Deputy   Director  and   Director   (respondent   Nos.  1 
and 2) to open the seated cover of the proceedings of 
the meeting of the no­confidence motion to declare the 
result and implement the same. 
(emphasis supplied)
Hence   even   in   the   absence   of   a   provision   for   removal   of   the 
chairman by passing of a no confidence motion, the full bench of the Gujarat 
High Court recognized such a right as being inherent in the body which has 
elected him and thereby has given pre­eminence to the will of the members 
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who constitute the house.
The   judgment   of   the   Apex   Court   in  Usha   Bharti   v/s.   State   of  

Uttar Pradesh and others    is also eloquent as regards the applicability of the 
 8
democratic principles.    In the said case, the issue before the Apex Court was 
whether Section 28 of the U.P
. Kshettra Panchayats and Zilla Panchayats Act, 
1961 providing for removal of the Chairperson by a no confidence motion was 
ig
in   violation   of   Part   IX   of   the   Constitution   which   was   inserted   by   the   73 rd 
constitutional   amendment.     The   Apex   Court   held   that   though   by   the   73 rd 
constitutional amendment the Panchayati Raj Institutions acquired the status 
and dignity of viable and responsive people's bodies, they are not meant to 
provide an all pervasive protective shield to a Chairperson even in cases of loss 
of confidence of the constituents and therefore held that Section 28 was not 
repugnant to Part IX of the Constitution of India. Paragraphs 41 and 44 of the 
said judgment are material and reproduced herein under :­
“41 The   provisions   of   the   73rd   Constitutional 
amendment are to ensure that Panchayati Raj Institutions 
acquire the status and dignity of viable and responsive 
people's bodies. The provisions are not meant to provide 
an all pervasive protective shield to an Adhyaksha, Zila 
Panchayat,   even   in   cases   of   loss   of   confidence   of   the 
constituents.   Provision   in   Section   28,   therefore,   cannot 
be said to be repugnant to Part IX of the Constitution of 
India.”

44. We reiterate the view earlier expressed by this Court 
in   Bhanumati   &   Ors.   (supra),   wherein   this   Court 
8 (2014) 7 SCC 663
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observed as follows: (SCC p.19, paras 57­58)

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“57. It   has   already   been   pointed   out   that   the 
object and the reasons of Part IX are to lend status 
and dignity to Panchayati Raj institutions and to 
impart certainty, continuity and strength to them. 
The   learned   counsel   for   the   appellant 
unfortunately,   in   his   argument,   missed   the 
distinction   between   an   individual   and   an 
institution.   If   a   no­confidence   motion   is   passed 
against   the   Chairperson   of   a   panchayat,   he/she 
ceases to be a Chairperson, but continues to be a 
member   of   the   panchayat   and   the   panchayat 
continues   with   a   newly­elected   Chairperson. 
Therefore,   there   is   no   institutional   setback   or 
impediment   to   the   continuity   or   stability   of   the 
Panchayati Raj institutions. 
58.   These   institutions   must   run   on   democratic 
principles. In democracy all persons heading public 
bodies   can   continue   provided   they   enjoy   the 
confidence   of   the   persons   who   comprise   such 
bodies.   This   is   the   essence   of   democratic 
republicanism. This explains why this provision of 
no­confidence motion was there in the Act of 1961 
even   prior   to   the   Seventy­third   Constitution 
Amendment   and   has   been   continued   even 
thereafter. Similar provisions are there in different 
States in India.”
The Apex Court has therefore given weightage to and reiterated 
the democratic principle that an elected person is entitled to continue in office 
only till such time as he enjoys the confidence of the persons who comprise 
such bodies.
18
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Since  much store was laid on the judgment of the Division Bench 
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of this Court in Vishnu Ramchandra Patil's case and since the Division Bench 
in the said case has relied upon the judgment of the full bench in  Vishwas  
Pandurang Mokal's  case it would be necessary to consider the said Division 
Bench Judgment. The Division Bench, in so far as the issue as to whether Rule 
17 is directory or mandatory is concerned, relied upon the full bench judgment 
in  Vishwas Pandurang Mokal's  case and held that the said issue is no more 
res­integra   in   view   of   the   full   bench   Judgment.     In   fact   the   full   bench   in 
ig
Vishwas Pandurang Mokal's case has specifically held that the question as to 
the consequence of non­compliance of any rule will have to be decided in each 
case after considering the nature of the provision.  The full bench has observed 
that as regards whether Rule 17 is mandatory or directory or consequence of 
non­compliance on the validity or otherwise on the confidence motion, the full 
bench observed that it was not deciding that question since the same was not 
referred to it. Hence the Division Bench in the instant LPA was right when it 
observed   that   the   finding   recorded   by   the   Division   Bench   in  Vishnu 
Ramchandra Patil's  case that the issue as to whether Rule 17 is directory or 
mandatory is no more res­integra on account of the full bench judgment runs 
counter to the dictum of the full bench. After so observing the Division Bench 
in the instant LPA observed that it could not be persuaded to take the view as 
taken by the Division Bench in Vishnu Ramchandra Patil's case and therefore 
referred the issue to a larger bench.  In so far as Vishnu Ramchandra Patil's 
case is concerned, it is required to be noted that Section 44(3) of the BVP Act 
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was not brought to the notice of the said Division Bench as also the judgment 
in  K Narasimhiah's  case (supra) was not cited before it. Hence the Division 
Bench in  Vishnu Ramchandra Patil's case has rendered its decision oblivious 
of   the   said   provision   as   well   as   the   judgment   of   the   Apex   Court   in  K 
Narasimhia's  case.     The   judgment   in  Vishnu   Ramchandra   Patil's  case 
therefore does not state the correct position in law vis­a­vis whether Rule 17 is 
ig
directory or mandatory.
19
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 
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words   in   the   provision   when   only   in   the   case   of   ambiguity   or   doubt   the 
provision. (See Frick India Ltd. v/s. Union of India  ).

 9
heading   or   sub­heading   may   be   referred   to   as   an   aid   in   construing   the 
In   so   far   as   sub­section   3   of   Section   44   of   the   BVP   Act   is 
concerned, the said sub­section 3 can be said to be an exception to sub­sections 
1 and 2 of Section 44 of the BVP Act.  The language of sub­section 3 makes it 
ig
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 modern 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.     The   Apex   Court   has   nick­named   the   said 
provision as the “Ganga” clause thereby meaning it to be a clause cleansing the 
proceedings   of   any   defects.     An   identical   clause/section   had   come   up   for 
9 AIR 1990 SC 689
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consideration before the Apex Court in B.K.Srinivasan and another etc. v/s.  

State of Karnataka and ors.   and thereafter in Akhil Bharat Goseva Sangh  
 10

v/s. State of A.P
. and ors.  .   In  B K Srinivasan's  case the Apex Court was 
 11
concerned with Section 76J of the Mysore Town and Country Planning Act, 
1961. The said Section 76J read thus :­
"76 J. Validation of acts and proceedings­­No act done 
or proceeding taken under this Act shall be questioned 
on the ground merely of, 

(a) the existence of any vacancy in, or any defect in the 
constitution of the Board or any Planning Authority; 
(b) any person having ceased to be a member; 
(c)   any   person   associated   with   the   Board   or   any 
planning   authority   under   section   4F   having   voted   in 
contravention of the said section; or 
(d) the failure to serve a notice on any person, where 
no substantial injustice has resulted from such failure; 
or 
(e) any omission, defect or irregularity not affecting the 
merits of the case." 
  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 
10 AIR 1987 SC 1059
11 2006) 4 SCC 162

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 76J.  
same do not affect the merits of the case.
The said Section 44(3) therefore cleanses the proceedings of any defect if the 
Hence though we have come to a conclusion that Rule 17 of the 
Meeting Rules is directory however on the touchstone of Section 44(3) of the 
ig
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 
20
any infirmity in the proceedings.
Since reliance on behalf of the Appellant herein was sought to be 
placed on the judgment of the Division Bench in Janardan Shankar Watane  

v/s. CEO, Zilla Parishad, Amravati  ,  as also the  judgment of  the  Division 
 12 
Bench of this Court in Ganesh Raghunath Samel v/s. State of Maharashtra  

and ors.    in support of their contention that Rule 17 is mandatory and non­
 13
compliance   thereof   result   in   the   proceeding   being   vitiated,   it   would   be 
necessary to consider the said two judgments.  
12 1965 Mh.L.J. Note No.2
13 2002 (4) Bom. C.R.425

In  Janardan   Shankar   Watane's  case   the   Division   Bench   was 
concerned with Rule 2 of the No Confidence Motion Rules.  The said Rule as it 
then stood required that the special meeting under Section 35 of the BVP Act 
ought to be held within 7 days from the date of receipt of the requisition but 
before expiry of 15 days.   The Division Bench held that the right to move a 
motion of no confidence was a creature of the Act which provides for exercise 
of that right in the manner prescribed by the rules and that where a statute 

gives a right to do something in a given manner, it can be done only in that 
manner and in no other.   The said Rule 2 was held to be a part of the right 
itself as such considered mandatory and a resolution passed in contravention 
was held to be illegal.  In so far as the said Rule 2 is concerned, the same was  
in sync with Section 35(2) of the BVP Act, as Section 35(2) also provides that a 
meeting is to be called within 7 days from the date of receipt of the notice by 
the Tahasildar.  It is in the said context, the Division Bench held that the said 
Rule is a part of the right itself, and is therefore, mandatory.  However, in so far 
as Rule 17 is concerned, it is a part of the general rules applicable to meetings 
of   the   Panchayat,   and   non­compliance   thereof   cannot   impinge   upon   the 
resolution which satisfies the requirements of Section 35(3) of the BVP Act. 
In so far as the judgment in  Ganesh Raghunath Samel's  case is 
concerned, the  Division Bench in the  said case was concerned with Section 
35(2) which as indicated above postulates that a meeting is to be held within 7 

days from the date of receipt of the notice by the Tahasildar.   The Division 
Bench held that a meeting held after the stipulated period of seven days would 
be illegal and all consequential action in pursuance of the said no confidence 
motion   was   required   to   be   quashed   and   set   aside.     In   Ganesh   Raghunath 
Samel's   case   the   Division   Bench   was   concerned   with   the   compliance   of   a 
substantive provision and it is in the said situation that the Division Bench held 
that the motion of no confidence passed in the meeting held after 7 days was 

illegal.     In   our   view,   the   aforesaid   two   judgments   in  Janardan   Shankar  
Watane's case and Ganesh Raghunath Samel's case (supra) do not further the 
case of the Appellants that Rule 17 is mandatory and that there has to be a 
21
strict compliance thereof.
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 BVP 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 BVP 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.
[CHIEF JUSTICE]
[[R M SAVANT, J.]

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