Kashinath s/o Shivlingappa Arbale v. Tahsildar i. e. Presiding Officer Nilanga & others
1998-12-22
B.B.VAGYANI, S.B.MHASE
body1998
DigiLaw.ai
JUDGMENT - S.B. MHASE, J.:---The petitioners have approached this Court under Art. 226 of the Constitution of India for setting aside the orders dt. 2-9-1997 passed by the respondent No. 17. Divisional Commissioner, Aurangabad, in Case No. 1997/DB/Desk-II/ZPVP/Appeal-91 and judgment and order dt. 31-7-1997 passed by the respondent No. 16 Collector, Latur in Case No. 1997/GPN/Kavi-418/CR-65 and the resolution passed in Special meeting dt. 14-5-1997 by the members of the Gram Panchayat, Kasarshirsi. In short, the no confidence motion which was carried out by the members of the Gram Panchayat, Kasarshirsi, against the petitioner is under challenge. 2. The petitioner is elected member of the Gram Panchayat in the year 1995 and was elected as a Sarpanch of the said Gram Panchayat. The first no confidence motion was moved against the petitioner in the meeting dt. 5-2-1996, however, the said motion was rejected. Thereafter, the second motion was moved and the special meeting was convened on 31-3-1996 wherein no confidence motion was passed against the petitioner. However, the said resolution of no confidence motion was finally quashed by the Additional Collector, Latur and the Commissioner, Aurangabad Division, Aurangabad, as the said resolution was mover within a period of one year from the date of earlier rejection of no confidence motion. Those orders of the authorities in respect of the second no confidence motion were challenged by the member by filing Writ Petition No. 314/1997 and this Court rejected the said petition in limine on 29-1-1997. Thereafter, the members of the said Gram Panchayat have come with a third fresh requisition on 9-5-1997 to call the special meeting of the Gram Panchayat to discuss the no confidence motion against the petitioner. Accordingly, the special meeting of the Gram Panchayat was held by the Tehsildar on 14-5-1997 and no confidence motion was passed against the present petitioner. The petitioner, thereafter, has preferred appeal before the Collector and, on rejection of the said appeal, the petitioner approached the Divisional Commissioner who, in turn, rejected the appeal filed by the petitioner and thus the orders of the respondent Nos. 16 and 17 and the proceedings of the special meeting dt. 14-5-1997 of the Gram Panchayat, wherein no confidence motion was passed against the petitioner, is under challenge. 3. This Court, on 4-11-1997, issued Rule, returnable on 24-11-1997, and in the meanwhile directed status quo as on 4-11-1997.
16 and 17 and the proceedings of the special meeting dt. 14-5-1997 of the Gram Panchayat, wherein no confidence motion was passed against the petitioner, is under challenge. 3. This Court, on 4-11-1997, issued Rule, returnable on 24-11-1997, and in the meanwhile directed status quo as on 4-11-1997. As a result of this order, the fresh elections of the Sarpanch could not be held and Deputy Sarpanch is looking after the affairs of the said Gram Panchayat. However, the petitioner is not in the office of the Sarpanch. 4. The controversy which is involved in the present petition, according to learned Counsel, is two-fold. According to learned Counsel, in view of the provisions of sub-section (3-A ) of section 35 of the Bombay Village Panchayats Act, 1958, as it stood on the date of second notification dt. 31st August, 1996, the no confidence motion cannot be moved within a period of one year and, therefore, the motion passed against him on 14-5-1997 is bad and illegal. The second aspect which is submitted is as to from what date the period of one year and/or six months, as amended in sub-section (3A), is to be calculated. Learned Counsel pointed out the provisions of sub-sections (3), (3A), (3B) (3C), and (3D) for this purpose and submitted that after passing of the no confidence motion, in view of the provisions of sub-section (3) of section 35, the Sarpanch shall cease to hold the 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). 5. He further submitted that the sub-section (3B) states that within seven days from the date on which such motion was carried, the Sarpanch shall refer the dispute to the Collector who has to decide it within fifteen days from the date on which it was received and under sub-section (3C) he states, an appeal has been provided to the Commissioner who shall decide it within fifteen days from the date on which the appeal has been received by him.
He gave emphasis on sub-section (3D) and submitted that where the reference or appeal is preferred under sub-section (3B) or under sub-section (3C), within a period of limitation, the seat of the Sarpanch becomes vacant on a rejection of appeal and where only reference has been made but the appeal has not been preferred, and if the reference is rejected, the office becomes vacant at the end of the period of limitation. Thus, he submits that, reading sub-sections (3), (3B), (3C) and (3D), the different dates have been provided to become the office of the Sarpanch vacant and, therefore, he tried to submit that after final disposal of the proceedings under sub-section (3B), (3D) and in case the said Sarpanch approaches to this Court under Art. 227, then on final disposal of the writ petition, the seat becomes vacant. The submission is made because, on becoming the seat vacant, learned Counsel tries to submit that the period provided in the second no confidence motion (in the present case, third no confidence motion), as provided in sub-section (3-A) is required to be calculated and thus, he submitted that as the Writ Petition No. 314/1997 has been disposed of on 29-1-1997, it was not possible for the members of the Gram Panchayat to submit a requisition to call for the special meeting on 9-5-1997 and thus he submitted that even if we take that the period as amended in sub-section (3-A) is six months, still as this meeting dt. 9-5-1997 falls within a period of six months from 29-1-1997, the said meeting was invalid and illegal and, therefore, both these authorities below namely the Collector and Commissioner, respondent Nos. 16 and 17 should have quashed the proceeding of the special meeting of the Gram Panchayat. Two-fold argument developed by the learned Counsel is not legal one. Sub-section (3-A) of section 35 of Bombay Village Panchayats Act, 1958, is as follows: (3-A) if the motion is not moved or is not carried by a majority of the total number of 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 Upasarpanch, within a period of six months from the date of such special meeting. These underlined words have been inserted in sub-section (3-A) by Amending Act of Mah.
These underlined words have been inserted in sub-section (3-A) by Amending Act of Mah. 10/1992. Section 3(2)(d) for the words 'six months' from the date of the rejection of the motion. It is further to be noted that the words 'one year' in this section have been also deleted by the Maharashtra Act No. 5 of the 1997 to 'six months'. 6. Thus, by reading this section the period of one year and /or six months, as amended, within which no fresh motion shall be moved is to be calculated from the date of such special meeting and, therefore, the date of meeting is the date on which the time starts to run and from that date onwards the period has to be calculated and, therefore, the argument of the learned Counsel based on sub-sections (3), (3-B) and (3-D) that from the date the seat becomes vacant as stated in those sub-sections and /or from the last date on which the seat becomes vacant, the time shall be calculated, is not a correct interpretation of law. Even if Sarpanch or the Upa Sarpanch succeeds in aplication or in an appeal or a revision as provided under these sub-sections, however that date on which the authoritiess upset the motion in favour of the Sarpanch or Upa Sarpanch is not a date from which the period is required to be calculated for sub-section (3-A) but, it has to be calculated from the date of the special meeting and therefore the argument of the learned Counsel to calculate the period for sub-section (3-A) from the date when the seat becomes vacant as stated in sub-section (3), (3-C) and (3-D) is misconceived and we reject the said argument. 7. Learned Counsel stated that the second no confidence motion, even though was passed on 31st of August, 1996 however, the said motion was set aside by the authorities as stated earlier and final rejection is on 29-1-1997 by writ petition No. 314/1997, and from that date, the third special meeting has been held within a period of six months on 14-5-1997 and therefore, it is bad.
However, as stated earlier, the period is to be calculated for the purposes of sub-section (3-A), from the date of the special meeting if this date of the earlier special meeting is 31-8-1996 the period of six month comes to 31st Feb., 1997, and therefore the third special meeting which has been held on 14-5-1997 is not affected by the provisions of sub-section (3-A). 8. Another argument which is advanced is that on 31-8-1996 the period provided under sub-section (3-A) was one year which was subsequently reduced to six months by the Amending Act No. 5 of the 1997. However, it is being submitted that there was a vested right in favour of the petitioner that within one year from that date of the special meeting, the no confidence motion cannot be brought in view of provisions of sub-section (3-A). The emphasis was on the words 'one year' as they stood in section (3-A) on the date of second meeting dt.31-8-1996 and therefore, the right is being claimed by the petitioner that even though there is amendment in the provisions, that provision will apply to the resolutions which are passed after the said provision has been brought into force by the Amending Act of 1997 and that will not apply to the earlier no confidence motion. We do not agree with the said argument. All these rights of the elected persons under the Local Self Government are creature of law and statutory rights and there is no vested right in any person. The statutory rights can be winded and abridged at any time by the Legislature and, therefore, even though on 30-8-1996, there was a period of one year within which another motion cannot be tabled for discussion, still as a result of the Amending Act of 1997, the said period is reduced to six months and, therefore, the said right is abridged and/or affected by a subsequent legislation. As the right, as observed, is not a vested right, it was permissible for the members of the Gram Panchayat to express no confidence motion as per the amended provisions and, therefore, after 31-8-1996 the date 14-5-1997 is beyond the period of six months and, therefore, the argument of the learned Counsel is not acceptable to us. We reject the same. 9.
We reject the same. 9. The last point which was argued by the learned Counsel is that there was no discussion in the meeting however, the proceedings point out that the petitioner was present in the meeting and, therefore, such a grievance cannot be made. We reject the said argument. 10. In the result, there is no substance in the petition. We rejected the petition. Rule discharged. Petition rejected. -----