Friday 19 April 2013

Subordinate legislation cannot negate the legislative intention as provided in the principal legislation.


 The subordinate legislation cannot be stretched to
such an extent  which will negate the legislative intention as provided in
the principal legislation.  In my considered view, the principal legislation
specifically provides that once the motion is carried out by the requisite
majority,  the  Sarpanch  or  the Upsarpanch  ceases  to  hold  office  after
seven   days,   however,   subject   to   he   resigning   before   that   period   or
disputing the same in accordance with the statutory provisions.


IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE JURISDICTION 
WRIT PETITION NO. 48 OF 2013
Pravin Shripati Yadav

               Vs.
1. Grampanchayat, Minche,

CORAM :­ B. R. GAVAI, J. 
DATE     :­ JANUARY 10, 2013.
Citation;2013(2) MH L J 934




1 Rule.  Rule made returnable forthwith.  
2 The Petition takes exception to the concurrent order passed by the
Additional Collector, Kolhapur dated 14th August, 2012, thereby rejecting
the dispute filed by the present Petitioner challenging the No Confidence
Motion  passed against him on 19th June, 2012 and the order passed by
the   Divisional   Commissioner,   Pune   dated   2nd  January,   2013   thereby
dismissing the Appeal filed by the present Petitioner.
3 The facts in brief giving rise to the Petition are as under:­
The   Petitioner   was   elected   as   a   member   of   Grampanchayat   –
Minche,  Taluka  Hatkanangale, Dist.  Kolhapur in  the   general  election

which  was  held in  the  year  2012.  The  Petitioner  had  contested  and
elected  for  the  seat  reserved  for OBC. The post of  the Sarpanch was
reserved for OBC and the Petitioner came to be elected on the said post.
A notice was issued to the Tahsildar­ Hatkanangale purportedly by nine
members of village panchayat proposing to move No Confidence Motion
against   the   Petitioner.   In   pursuance   to   the   notice,   meeting   for
considering No Confidence Motion was conveyed by  the Tahsildar on
19th June, 2012.  In the said meeting, No Confidence Motion  came to be
passed   by   the   majority   of   nine   members.   The   Petitioner   made   a
complaint   on   the   said   date   that   the   signature   of   one  member   Smt.
Lokare was  forged one and  raised a grievance  regarding  that.   Being
aggrieved thereby, the Petitioner preferred a dispute before the Collector
which was dismissed by the Additional Collector on 14th August, 2012.
Being   further   aggrieved,   the   Petitioner   approached   the   learned
Divisional Commissioner by way of an Appeal.  During the pendency of
the   Appeal,   the   Petitioner   also   obtained   an   opinion   regarding
genuineness of the signature of said Smt Lokare from a private hand­
writing expert which opinion, according to the Petitioner, is in his favour.
An  application was made  to  the Divisional Commissioner  for sending
signature of Smt.Lokare to hand­writing expert which was not decided,
and therefore, the Petitioner was required to approach this Court by way

of Writ Petition No.11973 of 2012.  This Court in the order dated 20th
December, 2012 observed that the fact that the person whose signature
is in dispute was present in the No Confidence Motion and has voted
against the Petitioner is not in dispute, and further observed that the said
issue can be looked into even after the Commissioner decides his Appeal.
Subsequently the Appeal has been dismissed.  Being aggrieved thereby,
the present Petition.
4 Shri Mankapure, the learned counsel appearing for the Petitioner
has raised following propositions in support of the Petition:
I) that while conducting the meeting in which No Confidence Motion
was passed, Rule 17 of the Bombay Village Panchayats (Meetings) Rules,
1959 (hereinafter referred to as “Meetings Rules”) was not followed. The
learned counsel in this respect submits that the Full Bench of this Court
in the case of Vishwas P. Mokal v/s Group Gram Panchayat Shihu and
Ors reported in 2011 (3) Bom. C. R. 495 has held that  the Meeting
Rules are applicable even to  a meeting which considers No Confidence
Motion and as such by non compliance with the said rules, the entire
proceeding stands vitiated.  It is submitted that Rule 17 requires that No
Confidence Motion has to be moved by the proposer and seconded by
the Seconder.  It is submitted that since the motion is not moved by the

proposer  and  seconded by  the  seconder,  the entire proceeding of  the
meeting shall stand vitiated.
II) Signature of one of the Applicants on the notice to the Tahsildar
was forged signature and as such the requisition for holding the meeting
to  consider  No Confidence Motion  did  not  have  requisite  number  of
members.    It is submitted that since the  fraud vitiates everything, the
meeting which was conveyed on the basis of such fraudulent notice itself
was not valid  and as such resolution passed therein was not sustainable.
III) That, on account of  the proposer and seconder not speaking in
meeting,   the   Petitioner   was   not   made   aware   as   to   what   are   the
allegations against him and as such he did not have any opportunity to
meet the said allegations and as such great prejudice has been caused to
the   Petitioner   thereby   vitiating   the   entire   proceeding   of   the   No
Confidence Motion.
5 The learned counsel submits that the Division Bench of this Court
in  Letters Patent Appeal No.268 of 2012 along with companion matters,
has prima facie found that Rule 17 of the Meetings Rules is mandatory
and has therefore quashed and set aside the orders passed by the Single
Judge of this Court dismissing the Writ Petitions on similar ground.  It is
submitted  that  the Division  Bench  has  remanded  the  matters  to  the

Single Judge after quashing and setting aside the orders passed by the
Single Judge.  It is therefore submitted that the Division Bench having
held the rules to be mandatory, this Court should allow the Petition in as
much  as  the  proceedings  conducted  are in  breach  of Rule  17  of  the
Meetings Rule.    Mr. Mankapure, the learned counsel also relied upon
the judgment of the learned Single Judge of this Court in the case of
Vijay Ramchandra Katkar v/s Group Gram Panchayat Pali and Ors
reported in 2010 (6) Bom. C. R. 708, in support of the contention that
Rule 17 of the Meetings Rules is mandatory.
6 As  against  this, Mr. Adagule,  the learned counsel  appearing on
behalf of the Respondent Nos.5 to 13 submits that the Petitioner having
lost  the confidence of  the majority of  the members, is not entitled  to
invoke  the equitable jurisdiction  of  this Court.    The learned  counsel
submits   that   in   democratic   set­up   what   is   important   is,   will   of   the
majority.   The learned counsel  further submits that  the question as  to
whether Rule 17 is directory or mandatory is itself  kept open by the Full
Bench.  The learned counsel submits that in the facts of the present case,
the provisions of Rule 17 cannot be held to be mandatory, but will have
to be hold as directory.  The learned counsel therefore prays for rejection
of the Petition.

7 For appreciating rival controversy, it will be relevant  to refer  to
Section 35 of the Bombay Village Panchayat Act, 1958 which reads thus:­
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  at   for
considering the motion of no confidence at the office of
the  panchayat  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 sub­section (3­B); and
thereupon   the   office   held   by   such  Sarpanch  or  Upa­
Sarpanch 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 [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  panchyat,  no   such   fresh   motion   shall   be   moved
against  the  Sarpanch  or, as  the case may be,  the  Upa­
Sarpanch within a period of [[one year] from the date of
such special meeting.]
(3B)  If  the  Sarpanch  or, as  the case may be,  the  Upa­
Sarpanch  desires  to dispute  the validity  of  the motion
carried under 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 far as
possible, within fifteen days  from the date on which it
was received by him; and any such decision shall, subject
to an appeal under sub­section (3C), be final. 
(3C)   Any   person   aggrieved   by   the   decision   of   the
Collector may, within seven days from the date of receipt
of such decision, appeal to the Commissioner who shall
decide the appeal, as far as possible, within fifteen days
from  the date on which  the appeal is received by him
and any such decision shall be final. 
(3D) Where   on   a  reference   made   to   him   under   sub­
section  (3B),  the Collector upholds  the validity  of  the
motion carried under sub­section (3) and no appeal is
made by the  Sarpanch  or the  Upa­Sarpanch  under sub­
section (3C) within the limitation period specified in that
sub­section,   or   where   an   appeal   is   made   under   sub­
section (3C) but it is rejected by the Commissioner, the
Sarpanch or, as the case may be, the Upa­Sarpanch shall
cease to hold office in former case immediately after the
expiry  of  the  said limitation  period  and, in  the latter

case, immediately after the rejection of the appeal, and
thereupon   the   office   held   by   such  Sarpanch  or  Upa­
Sarpanch shall be deemed to be vacant.] 
(4)  In cases where the offices of both the Sarpanch and
Upa­Sarpanch become vacant simultaneously, the District
Village Panchayat Officer or such other officer as he may
authorise in this behalf shall, pending the election of the
Sarpanch  exercise  all  the  powers  and  perform  all  the
functions and duties to the Sarpanch but shall not have
the right to vote in any meeting of the panchayat.”
8 It will also be relevant to refer to Rule 2 of the Bombay Village
Panchayats Sarpanch and Up­sarpanch ( No Confidence Motion) Rules,
1975 (hereinafter referred to as “No Confidence Motion Rules”) which
reads thus:­
“2.(1) The members of a panchayat who desire
to more  a motion of no­confidence  against  the
Sarpanch or the Upa­Sarpanch shall give 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 [nine 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.
[(2­A) The  Tahsildar shall also publish the said
notice by placing the same on the notice board at

the office of the Panchayat and Tahsildar office. 
(2­B) Every notice under sub­rule (1), wherever
it may be practicable, be served by delivering or
tendering it to the Sarpanch  or Upa­Sarpanch  to
whom   it   is   addressed   or,   where   such   person
cannot be  found, by delivery or  tendering it  to
any   adult   member   of   his   family   residing   with
him; and if no such adult member can be found
or,  where   the  Sarpanch, Upa­Sarpanch  or  such
adult member,  as  the   case  may   be,  refuses  to
accept the notice, it shall be served by affixing it,
in  the presence of  two witnesses, on  the outer
door or some other conspicuous part of the house
in   which   such  Sarpanch  or  Upa­Sarpanch
ordinarily   dwells.     The   notice   served   in   this
manner   shall   be   deemed   to   the   served   or
tendered or delivered to the concerned Sarpanch
or Upa­Sarpanch.]
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.”
9 It will also be relevant to refer to Rule 17 of the Meetings Rule.
“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.”
10 It   can   thus   clearly   be   seen   that   sub­section   1   of   Section   35
provides that a Motion of No Confidence can be moved by not less than
1/3rd  of  the  total number of members who  are  for  the      time being
entitled to sit and vote at any meeting of the Panchayat.  Sub­section 2
thereof provides that within seven days from the date of receipt by him
of the notice under sub­section(1), the Tahasildar 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 such
a meeting will be required to be presided over by the Tahsildar. The said
proviso also provides that 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 a right to vote. Sub­section 3 thereof provides that 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.   However,  this is made  subject  to  the
resignation earlier to this period or the dispute regarding  the validity of
the   motion   being   carried   as   provided   in   sub­section   (3B).     Proviso
provides   that   if   the   office   of   the   Sarpanch   which   is   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).  However, the said proviso
would not  be relevant for adjudication in the present matter.  
Second proviso provides  that no such Motion of No Confidence
shall be brought within a period of six months from the date of election
of Sarpanch   or Upa­Sarpanch.
Sub­section 3 provides that  if the motion is not moved or is not
carried by  a requisite majority, such a No Confidence Motion cannot be
moved   against the Sarpanch for a period of one year from the date of
such special meeting.
11 Sub­rule 1 of Rule 2 of the No Confidence Motion Rules provides
that  the members  of  a  Panchayat who  desire  to move Motion  of No
Confidence  against the Sarpanch or the Upa­Sarpanch, shall give notice

thereof in  the Form  to  the Tahsildar.   The said sub­rule provides  that
where the motion is proposed to be moved against the Sarpanch as well
as the Up­Sarpanch, two separate notices shall be given.  Sub rule 2 of
Rule 2 provides that the notice shall be accompanied by nine additional
copies  one of which is required to be sent to the Sarpanch and to the
Upa­Sarpanch and one each to the Zilla Parishad, the Panchayat Samiti,
the Collector and  the Commissioner.   One copy is also required to be
given to the Secretary.  Sub­rule 2A of the Rules requires the Tahsildar to
publish the said notice by placing the same on the notice board at the
office  of  the  Panchayat  and  Tahsildar.    Sub­rule  2B  provides  for  the
manner   in   which   such     notice   shall   be   served   on   Sarpanch   or
Upsarpanch   concerned.     However,  there  is   no  dispute   regarding   the
service of the notice on the Petitioner and as such the said rule would
not be of much relevance in the present case.  Sub­rule 3  provides that
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.  

12 Rule   17   of   the   Conduct   of  Meetings   Rules   provides   that     the
member who has  given  the Notice of Motion when called on has  an
option to state that he does not wish to move the motion or move the
motion. Clause (b) of sub­rule 1 of Rule 17 however, provides that if the
member moves the Motion, he shall commence his speech by a formal
motion in the terms  appearing on the list of  business, after the motion
is duly seconded. 
13 The   question,   as   to   whether     Rule   17   of   the   Conduct   of   the
Meetings   Rules  would  also  be   applicable  in   the  meetings  which   are
convened   for   considering   the   No   Confidence   Motion   was   for
consideration     before   the  larger  bench  of   this  Court, in   the   case  of
Vishwas Mokal (supra).
14 The   Division   Bench   of   this   Court     has   answered   the   issue   in
paragraph no.17 by holding that Rule 17 of the Meetings Rules would
apply even to the meetings convened for considering the No Confidence
Motion.   There can be no doubt in view of the law laid down by the
larger  bench  that Rule  17 would be  applicable  to  the meetings even
convened for considering the No Confidence Motion.  However the only
question   that   would   arise   for   consideration   is   as   to   whether   the
provisions of Rule 17 can be considered to be mandatory in nature so as

to vitiate the proceeding in the meetings which have been conducted in
contravention of provisions of Rule 17 of the Meetings Rules or not.  It is
pertinent   to   note   the   observations   made   by   the   larger   bench   in
paragraph no.18 of the aforesaid judgment which reads thus:­­
18. We make it clear that though it is clear to our mind
that  the provisions of  the Meeting Rules  generally  and
Rule 17 in particular will apply to the above extent to a
meeting called under Section 35, we are not deciding the
question   as  to  what is  the   consequence in   relation   to
validity or otherwise of a motion of no confidence being
passed against Sarpanch or Up­Sarpanch in violation or
without  following  a  particular Rule. That  question will
have  to  be  decided in  each  case  after  considering  the
nature   of   the   provision,   whether   the   provision   is
mandatory or directory. In other words, though it is clear
to our mind that the provisions of Rule 17 of the Meeting
Rules   are   to   be   followed   in   passing   the   motion   in   a
meeting called under Section 35, we are not deciding the
question as to what is the consequence if the provisions
are not followed and the motion is passed. Because, that
question   as  to   whether   the   provisions   of   Rule   17   are
mandatory or directory has not been  referred  to us.  In
our opinion, therefore, the first question will have to be
answered in the affirmative by holding that the provisions
of the Meeting Rules generally and provisions of Rule 17
in particular apply to a meeting convened under Section
35.”
15 It  is   thus   clear   that   the  larger   bench   had  itself   observed   that
though  the provisions of the Meetings Rules generally and Rule 17 in
particular will apply to the meetings called under Section 35, the Full
Bench has not decided  the question as  to what is  the consequence in

relation  to validity or otherwise of  a Motion of No Confidence being
passed   against   the   Sarpanch   or   Upsarpanch   in   violation   or   without
following a particular Rule.  The Full Bench has observed that question
will have to be decided in each case after considering the nature of the
provision,  whether  the  provision is mandatory  or  directory.  The  Full
Bench has clearly observed that though the provisions of Rule 17 of the
Meeting Rules are  to be  followed in passing  the motion in a meeting
called under Section 35, it has not decided the question as to what is the
consequence if  the  provisions  are  not  followed  and if  the motion  is
passed.  The Full Bench further observed that the question as to whether
the provisions of Rule 17 are  mandatory or directory, the same  has not
been referred to the Full Bench.  It is thus clear that the Full Bench has
not   considered   the   question   whether   the   provisions   of   Rule   17   are
mandatory or directory. 
16 The bench of the Apex Court consisting of three Hon'ble Judges
had an occasion in the case of  K. Narasimhiah v/s H. C. Singri Gowda
reported in AIR 1966 SC. 330  to consider as to whether the provisions
regarding  giving of  three days' notice of  a  special meeting  to discuss
resolution to express No Confidence is mandatory or not.    In the said
case the Town Municipality had 20 Councillors.   Thirteen out of them

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   on   25th
September,   1963.     Since   the   President   did   not   take   any   steps   for
convening the meeting, the Vice President  acted in the matter calling a
meeting   to   discuss   the   Resolution   to   express   No   Confidence   in   the
President.   A notice under the Vice­president's signature stating that it
was proposed to hold a special general body meeting of the Municipality
on  the  14th  October,  1963  at  10.00  a. m. in  the  office  premises  and
asking the members to be present in time was served on the Councillors.
One copy of the notice was also posted up at the Municipal Office.  The
notice was dated 10th  October, 1963.   Out of the  20 Councillors, the
notice was served on 15 Councillors on the very same day.  The notice
was  served on  the  three Councillors including  the  President on   13th
October. The other two Councillors were served on 11th October and 12th
October respectively.  In the meeting which was held on the scheduled
date i.e. 14th  October,  1963, 19  out  of  20 Councillors   including  the
President were present.   However,  the President left  the meeting and
then   the   meeting   was   held   under   the   president­ship   of   the   Vice­
President.   The No Confidence Motion was passed against the President
since the 15 Councillors  had supported the No Confidence Motion.  The

legality of the proceedings was challenged before the High Court by way
of a Writ Petition.  The High Court rejected the Petition.  An Appeal was
carried before  the Apex Court.   The main contention  that was  raised
before  the Apex Court was  that  the  three  days notice  of  the  Special
General Meeting was not given, and as such, the meeting was invalid.
The Apex Court  therefore  considered  the  question  as  to whether  the
provisions of three days notice was mandatory or directory.
17 It will be  relevant  to  refer  to  the  following observations of  the
Apex Court in the case of K. Narasimhiah(supra), in paragraph nos.12
to 14.  
“12.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
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. In the State of U.P.
v. Manbodhan  Lal  Srivastava,  1958  S.C.R.  533,  (S)  AIR
1957   SC   912)   where   the   question   arose   whether   the
provisions   of   Art.  320(3)(c)  of   the   Constitution   are
mandatory (which provides that the Union Public Service
Commission or  the State Public Service Commission shall

be  consulted  on  certain  disciplinary matters),  this  Court
laid   stress   on   the   fact   that   the   proviso   to   the   Article
contemplates that the President or the Governor as the case
may be make regulations specifying the matters in which
either  general or in any particular class or in any particular
circumstances,   it   shall   not   be   necessary   for   the   Public
Service Commission to be consulted. Speaking for the Court
Sinha J. observed :­ 
"If   the   provisions   of   Art.  320  were   of   a   mandatory
character,  the Constitution would  not  have left it  to  the
discretion   of   the   Head   of   the   Executive   Government   to
undo   those   provisions   by   making   regulations   to   the
contrary." 
13.  This  appears  to  have  been  the main  reason  for  the
court's decision that the provisions of Article 320(3)(c) are
not mandatory. Naturally, strong reliance has been placed
on this decision on behalf of the respondents. It is pointed
out  that while  providing  that  three  clear  days' notice  of
special general meeting shall be given to the Councillors,
the legislature  said in  the  same  breath  that  "in  cases  of
great urgency, notice of such shorter period as is reasonable
should   be   given   to   the   Councillors   of   a   special   general
meeting." The decision of what should be considered to be
a case of "great urgency" was left entirely to the President
or   the   Vice­president   on   whom   the   duty   to   call   such   a
meeting is given under s. 27(2). It is urged by the learned
Counsel that if the intention of the legislature had been to
make  the service of  three clear days' notice mandatory it
would not have left  the discretion of  giving notice  for  a
shorter period for some of the special general meetings in
this manner. We see considerable  force in  this argument.
The very fact that while three clear days' notice is not to be
given  of  all  special  general meetings  and  for  some  such
meetings notice only of such shorter period as is reasonable
has to be given justifies the conclusion that the "three clear
days", mentioned in the section was given by legislature as
only a measure of what it considered reasonable. 
14. It is necessary also to remember that the main object of
giving the notice is to make it possible for the Councillors

to so arrange their other business as to be able to attend
the meeting. For  an  ordinary  general meeting  the notice
provided is of seven clear days. That is expected  to give
enough time for the purpose. But a lesser period ­ of three
clear   days'  ­  is  considered  sufficient  for   "special  general
meetings"  generally.  The   obvious  reason   for   providing  a
shorter period of such meetings is that these are considered
more important meetings and Councillors are expected to
make it convenient  to attend  these meetings even at  the
cost   of   some   inconvenience   to   themselves.   Where   the
special  general meeting is  to  dispose  of  some matter  of
great urgency it is considered  that  a period of even less
than three clear days' notice would be sufficient. 
18 No doubt, that clause 1B of Rule 17 of the Meetings Rules, uses
the   word   “that   shall     commence     speech   by   the   formal   motion”.
However, the question would be as to whether by using the word “shall”
the Legislator intended the said provision to be made as mandatory.  The
question would be as to whether intention of the Legislator could be to
invalidate the entire proceedings of the meeting in which No Confidence
Motion is passed on account of non compliance with the requirement for
Motion for No Confidence not being moved by the proposer as required
by Rule 17 of the said Rules.  Not only this, but while considering the
question as to whether the said provision in Rule 17 which undisputedly
is  a  subordinate legislation  could  be interpreted  so  as  to  negate  the
legislative  intent  as  has  been   provided in   the   said  Act  which is  the
principal legislation.  The perusal of sub­section 3 of Section 35 of the
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48.13.wp.jud
Bombay Village Panchayats Act, 1958 provides that if the No Confidence
Motion is carried  by the requisite majority, the  Sarpanch or Upsarpanch
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 No Confidence  Motion before the forum as provided in
the   said   section.   As   such,   the   legislative   intention   in   the   principal
legislation is clear.       Once  the motion is carried out by  the requisite
majority as provided in the statute, the Sarpanch or Upsarpanch ceases
to hold the office.   The subordinate legislation cannot be stretched to
such an extent  which will negate the legislative intention as provided in
the principal legislation.  In my considered view, the principal legislation
specifically provides that once the motion is carried out by the requisite
majority,  the  Sarpanch  or  the Upsarpanch  ceases  to  hold  office  after
seven   days,   however,   subject   to   he   resigning   before   that   period   or
disputing the same in accordance with the statutory provisions.
19 It is further to be noted that the Rules only provide the procedure
for conducting the meetings. However as to what is the requirement of
Sarpanch or Upsarpanch ceasing the office on the No Confidence Motion
carried  against  him  has  been  provided in  the main  statute i.e.  Sub­
section 3 of Section 35 of the said Act.  

20 The provisions in subordinate legislation cannot be read in such a
manner which will defy legislative intention  as provided in  the main
statute.
21 It will also be relevant to refer to paragraph 20 of the judgment of
the Apex Court in the case of K. Narasimhiah (supra) which reads thus:­
“20.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."
(emphasis supplied)
22 It can thus clearly be seen that the proceedings will be invalid only
if the proceedings were prejudicially  affected by such irregularity.
23 Though   Shri.   Mankapure   has   strongly   urged   that   due   to   the
manner in which the meeting was conducted a great prejudice has been
caused to the Petitioner, it is difficult to accept the said contention.
24 Shri   Mankapure,   the   learned   counsel   submitted   that   if   the
proposer and the seconder had given speeches, he would have known as

to what are  the allegations against him and attempted  to meet  those
allegations.    It is, therefore, submitted  that the Petitioner has lost the
valuable   opportunity   to   meet   the   allegations   against   him.     In   my
considered view, the No Confidence Motion cannot be equated with the
departmental proceedings.
25 In  this  respect, it will  be  appropriate  to  refer  to  the  following
observations of the Apex Court in the case of  Babubhai M. Patel v/s
Nandlal K. Barot and Ors reported in AIR 1974 SC 2105.
“ It is pertinent in this context to 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 charge 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.”
(emphasis supplied)
26 It can thus be clearly seen that the Apex Court in an unequivocal
term has held that 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 the members. It has further
been held that there is no legal bar for passing a motion of no confidence
against an authority in the absence of any charge of impropriety or lapse
on the part of that authority. 
27 In  any case  the  requisition   contains  a  specific charge  that  the
Petitioner   was   conducting   the   affairs   of   the   Grampanchayat   in   an
arbitrary manner without taking anybody in the confidence and without
giving information to the other members regarding the work conducted.
It is not in dispute that the Petitioner had received a copy of the said
requisition.  The Petitioner, for the reasons best known to him,  has also
given a detailed reply to the Tahsildar pointing out therein as to how the
allegations are not correct.   Not only this, but  the proceedings of the
meetings would show that after the Tahsildar initiated the proceedings
and   asked   as   to   whether   anybody   would   like   to   speak,   it   was   the

Petitioner alone who chose to speak.  The details as to what has been
spoken by the Petitioner have been stated in the minutes of the meeting.
It is only after the Petitioner was given an opportunity of putting up his
case the Resolution has been passed by the majority.  It is thus very much
clear that the Petitioner was very much aware of what are the allegations
made against him and on what ground the No Confidence Motion was
being moved against him.  The Petitioner was given an opportunity to
put­up his case and only thereafter the motion was considered.  In that
view of the matter, I find that the proceedings cannot be said to have
been   conducted   in   the   manner   which   has   prejudiced   the   present
Petitioner.
28 Insofar   as   the   next   ground   of   the   Petitioner   that   one   of   the
signatures being fraudulent is concerned, the perusal of sub­section 1 of
Section 35 of  the said Act would reveal  that  the requisition as  to No
Confidence Motion is required to be   signed by the 1/3rd   of the total
number  of the members. Undisputedly, the total number of the members
of the Grampanchyat  concerned, is thirteen.  Assuming for a moment
that the signature of Smt Lokare is not genuine and for a moment it is
considered that she has not signed the requisition, still the requisition
would consist of eight members inasmuch as there are nine persons who

have signed the requisition including Smt Lokare.  In a Grampanchayat
of 13 members, 1/3rd  would come  to 4.33.     Giving an advantage of
rounding of to the  Petitioner, still the number would be five members.
As such even if the signature of Smt Lokare is excluded there would be
still eight signature in support.  It is apart from the fact that the said Smt
Lokare had participated in No Confidence Motion and supported the No
Confidence Motion. Not only  that but  she has  also  filed  the  affidavit
before the Collector that she had signed the requisitiion and that she had
participated   in   the   proceedings   and   supported   the   No   Confidence
Motion.  In  that view of  the matter,  I  find  that  the contention in  that
regard is also without any substance.
29 Insofar  as  the judgment  of  the Division Bench  of  this Court in
Letters Patent Appeal No. 268 of 2012  is concerned, no doubt that the
Division Bench has  set aside  the orders which were impugned in  the
bunch  of Appeals  before  the Division  Bench.    It  appears  that in  the
judgments which were impugned,    the learned Single Judge had held
that   Rule   17   was   not   applicable   to   the   meeting   convened   for
consideration of motion for no confidence.  In that view of the matter,
the   Division   Bench   has   observed   thus   in   paragraph   nos.4   and   5   as
under:­

“4.   The   statement   so   made,   we   have   no
manner of doubt, is in the teeth of the legal
position expounded by the Full Bench of our
High Court in the case of Vishwas Pandurang
Mokal vs. Group Gram Panchayat Shihu and
ors.   The Full Bench, in no uncertain terms,
has opined  that  there is no reason why  the
provisions of the Meeting Rules ato 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.  The Court also proceeded
to   examine   the   question   whether   the
provisions  of Rule  17  of  the Meeting Rules
apply to a meeting called under Rule 35 and
held that the provisions of Rule 17 will apply
to a meeting  called under Section 35.
5. In view of  this exposition, it was not
open  to  the Learned Single Judge  to decide
the matter on the basis of the view taken by
him   in   the   past   in   some   other   cases.    We
would   proceed   on   the   basis   that   the   Full
Bench   Judgment   of   this   Court   was   not
brought  to  the notice of  the Learned Single
Judge.  Be that as it may, the view taken by
the  Learned Single Judge, in  the impugned
decision,   cannot   be   sustained   in   law   and,
since   that   is   the   basis   for   rejecting   the
Petitions, the only appropriate course is to set
aside    the impugned decisions  rejecting  the
Petitions, the only appropriate course is to set
aside   the   impugned   decisions   and   relegate
the parties before  the Learned Single Judge
for fresh hearing of the Writ Petitions on the
other issues, on its own merits, in accordance
with law.  It is not necessary for us to advert
to  the  other  decisions, which Mr. Gavnekar
wanted to rely, as this decision pertains to the
merits of the controversy of the Writ Petitions
and   can   be   produced   before   the   Learned
Single Judge.”

30 However,  from the perusal of the entire judgment, it would not
reveal that the Division Bench had expressed any opinion even which
can  be  considered  as    obiter  that  the    provisions  of Rule  17  of  the
Meeting   Rules   are   mandatory   in   nature.     As   already   discussed
hereinabove,  the  Full  Bench  had itself  kept  the  question  open  as  to
whether, the provisions of Rule 17 are directory or mandatory.  Since the
said issue is kept open by the Full Bench, I have examined the question
as   to   whether   the   provisions   of   the   Rule   17   could   be   held   to   be
mandatory in the facts of the present case or not.  In that view of the
matter, I find that the reliance on the aforesaid judgment of the Division
Bench would also be of no assistance to the case of the Petitioner.
31 Insofar as the judgment of the learned Single Judge of this Court
in the case of Vijay Katkar (supra) is concerned, in my view, the said
judgment   would   not   be   applicable   to   the   facts   of   the   present   case
inasmuch   as   in   the   said   case,   the   Petitioner   against   whom   the   No
Confidence Motion was passed was not given an opportunity  to speak
before the No Confidence Motion was considered by the Grampanchayat.
In that view of the matter, the No Confidence Motion would be in breach
of the provisions of sub­section 2 of Section 35 and as such the Motion
would not be sustainable in law. Such is not the case here. In the present

case, the Petitioner was given  full opportunity of putting up his stand
before the No Confidence Motion came for consideration.  In that view
of the matter, the said judgment would also not be applicable. 
32 The   Division   Bench   of   this   Court   in   the   case   of
(Smt.Annapurnabai   Ajabrao   v.   Annapurnabai   Anandrao)   reported   in
1967 Mh.L.J. NOC 36, while considering the challenge to the regularity
of the proceedings of the meeting held to consider the resolution of no­
confidence motion against the Sarpanch, observed thus:
“Even  if  it  were  to  be   assumed  that  there   was  some
technical  flaw in  the proceedings of  the meeting or in
transmission   of   the   results   of   the   meeting   to   the
Panchayat Samiti, we do not see how that could entitle
the petitioner  to claim  to continue as Sarpanch of  the
Gram   Panchayat.   A   Gram   Panchayat   is   essentially   a
democratic institution which must be run on democratic
principles.   When   the   majority   of   the   members   have
clearly expressed that they do not desire the petitioner to
be their leader and Sarpanch, appropriate attitude of the
petitioner as a person working for democracy whatever
have been to tender her registration straightway. At any
rate, it does not behave of democratic spirit to challenge
the decision of the majority who unmistakably declared
their   want   of   confidence   in   their   erstwhile   leader.
Democratic principles as has also a sense of self respect
should have been impleaded the petitioner and persons
situated in similar circumstances to graciously submit to
the decision of the majority and to walk out of the Gram
Panchayat.   Notice   raising   frivolous   contention   and
forcing herself on the democratic institution it does not
want her to hold that position.”

33  The Division Bench of this Court, in the case of (Nimba Rajaram
Mali Vs. Collector, Jalgaon and Ors.) reported in 1999(1)Bom C.R. 546,
followed   the   aforesaid   Judgment   in   the   case   of   Smt.   Annapurnabai
Ajabrao v. 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   Mulji   Patel   Vs.   Nandalal)   1974   DGLS   278
(soft) : AIR 1974 S.C.2105 : 1974 (2) SCC 706 (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   away  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.”
34  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.
35 Things would have to be looked into from another angle.  In the
Grampanchyat   concerned,   there   were   thirteen   members.     Out   of
thirteen, nine members have lost confidence in  the Petitioner.    If  the
contention of the Petitioner is accepted and the Petitioner is thrust upon
the   Village   Panchyat   as   Sarpanch,   the   entire   functioning   of   the
Grampanchayat will  come  to  stand  still.    In  as much  as it would  be
difficult for the Petitioner to discharge his duties effectively as Sarpanch
when   the   nine   members   out   of   the   thirteen   are   opposed   to   his
contention.
36 In that view of the matter, I do not find that a case is made out for
interference in the extra ordinary jurisdiction of this Court under Article
226  and  227  of  the Constitution  of  India.    The  Petition is  therefore
dismissed.  Rule is discharged.
37 At  this stage, Shri Mankapure,  the learned counsel  requests  for
direction to the Respondent not to take any steps for filling up the post
of Sarpanch for a period of one week from today.

38 In the light of the view that I have taken, I do not find that the
case is made out for grant of the relief as  prayed.  Rejected.
( B. R. GAVAI, J.)


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