JUDGMENT :- Heard Shri A V. Gawande, Advocate for petitioner, Shri A S. Sonare, AG.P. for respondent No.1 to 3 and Shri P. S. Patil Advocate for respondent Nos. 5, 6, 7, 8. None present for respondent Nos. 4 and 9. Rule. Made returnable forthwith. Heard finally with the consent of parties. 2. Petitioner is challenging the order passed by the Additional Commissioner, Amravati Division, Amravati in Appeal No. BVP/35(3)(c)/08-09 of Brahmi whereby the appeal of the petitioner to challenge order of Additional Collector in the proceedings No. 21/69/08-09 Mouja Brahmi Tahsil Darwha, District: Yavatmal, was rejected. 3. The facts relevant for the disposal of this petition may be stated thus. Petitioner is the elected Sarpanch of Village Gram Panchayat, Brahmi from 18-11-2008. Respondent Nos. 5 to 8, members of Gram Panchayat, Brahmi, gave a notice to respondent No. 3 - Tahsildar for moving No Confidence Motion against petitioner. Respondent No.3 - Tahsi1dar issued notice to the members of the Gram Panchayat for the special meeting for this purpose, which was scheduled on 24-11-2008. On 24-11-2008, the special meeting for consideration of No Confidence Motion was convened at 2.00 p.m. petitioner raised written objection before respondent No.3 - Presiding Officer of the said special meeting regarding non-compliance of the mandatory provisions of Rule 2(4) of the Bombay Village Panchayat (Sarpanch and Upsarpanch Motion of No Confidence) Rules. According to the petitioner, Tahsildar had failed to provide the text of No Confidence Motion and charges against the petitioner. According to the petitioner he was not given opportunity of hearing, as he was not supplied with the notice under Rule 2(1) of the said rules along with the notice which was sent to him. The motion was carried by 4:2. The passing of this resolution of noconfidence against the petitioner was challenged by the petitioner before the Collector by filing dispute under section 35(3)(b) of Bombay Village Panchayat Act. The Additional Collector, however, found that the service of notice was proper. He also found that the petitioner was heard and No Confidence Motion was properly carried. Therefore, he dismissed the complaint of the petitioner. 4. The unsuccessful petitioner then filed appeal before the respondent No.1 - Commissioner, Amravati Division, Amravati to challenge the said order of the Additional Collector. Learned Additional Commissioner - respondent No.1 by his order dated 18-2-2009 dismissed the said appeal. Therefore, he dismissed the complaint of the petitioner. 4. The unsuccessful petitioner then filed appeal before the respondent No.1 - Commissioner, Amravati Division, Amravati to challenge the said order of the Additional Collector. Learned Additional Commissioner - respondent No.1 by his order dated 18-2-2009 dismissed the said appeal. It is this order which is challenged by the petitioner in this petition. 5. Learned counsel for the petitioner has emphasized, submitting that the mandatory provisions of Bombay Village Panchayat (Sarpanch and Upsarpanch No Confidence Motion) Rules, Rule 2 of the said rules was not complied by the Tahsildar. In fact the notice received by the petitioner was not accompanied with the copy of the No Confidence Motion, which was issued by the respondent Nos. 5, 6 and 8 under Rule 2(i). It was not at all supplied. Therefore, the petitioner could not make his defence in the special meeting called by Tahsildar in which the alleged said No Confidence Motion was carried. According to him, the said rule was mandatory and because the copy of the No Confidence Motion was not served on him, along with the notice for special meeting, no proper opportunity was given to him to defend himself in the special meeting which was called for consideration of No Confidence Motion. Thus according to him, he was not granted reasonable opportunity under principles of natural justice. Proceedings of the special meeting held by Tahsildar dated 24-11-2008 is vitiated. He has relied on the judgment of this Court reported in 2004(2) Mh.L.J. 1004 , Yamunabai Laxman Cllavan and others vs. Sarubai Tukaram Jadhav and others to contend that although the provisions of Rule 2(2) of the said Rules are held to be directory, the petitioner could not take effective part in the special meeting, as he was not supplied with the copy of the No Confidence Motion and therefore even though the said rule is directory, the proceedings stood vitiated as it was not the lapse on the part of the Tahsildar for non-compliance of some technical aspects. Therefore, according to him, the proceedings in the said meeting cannot be held to be legal, consequently unseating the petitioner as Sarpanch. Therefore, according to him, the proceedings in the said meeting cannot be held to be legal, consequently unseating the petitioner as Sarpanch. In the alternative it is his submission that the matter may be remitted back for holding fresh special meeting to allow the said No Confidence Motion to be considered afresh after giving proper notice to the petitioner or opportunity to represent his case in the special meeting. 6. Learned A.G.P. for respondent Nos. 1, 2 and 3 has supported the impugned order. 7. Learned counsel for respondent Nos. 5 to 8 while supporting the order impugned; contended that when Rule 2(2) of the said Rules is directory, technical flaw in the procedure cannot vitiate the special meeting proceedings which is specially called for consideration for No Confidence Motion. According to him in the present case there were six members in the Gram Panchayat, four of them did not support the petitioner. In fact even now they are not supporting the petitioner. Therefore the petitioner does not command majority in the Gram Panchayat and 2/3 majority i.e. 4 respondents are against the petitioner. He has also, relied on the affidavits of two panchas in whose presence the notice of special meeting was affixed on the house of the petitioner. As his brother had declined to take notice on behalf of the petitioner. Affidavit of these panchas Subhash and Vijay are filed in the proceedings of this petition, both; show that in their presence the peon of Tahsildar Office had affixed the copy of the notice of meeting along with copy of requisition of the special meeting filed by the members of the Gram Panchayat dated 8-11-2008 to the house of the petitioner. They stated on affidavit that this notice was fixed along with the copy of No Confidence Motion/requisition moved by the respondent Nos. 5 to 8. Therefore, according to him, the notice was validly served on the petitioner and the resolution of no confidence against the petitioner passed in the said case is perfectly valid. He also relied on the observations of this Court in aforesaid Yamunabai's case, particularly 7 and 11 of the said judgment. 8. I have considered the submissions of the parties. 9. It is necessary to note the contents of the minutes of the special meeting, at this stage. He also relied on the observations of this Court in aforesaid Yamunabai's case, particularly 7 and 11 of the said judgment. 8. I have considered the submissions of the parties. 9. It is necessary to note the contents of the minutes of the special meeting, at this stage. Relevant paragraph of the said minutes reads thus: "On 18-11-2008, by remaining present personally in the Tahsil Office of Darwha, the above members of Gram Panchayat Bramhi, Tahsil Darwha made written submission to the Tahsildar Darwha to file Ravindra Khas (Probably fresh application) against Shri Shrikrishna Digambar Jadhao, the Sarpanch of Mouza Bramhi. Thereupon, written notice was served upon the concerned asking them no attend the special meeting of 2.00 p.m. sharp in the office of the Gram Panchayat, Bramhi X omission X remained present as the Presiding Officer. The said filed application was read out in details in the meeting. Following points have been mentioned in the said application as regards to No Confidence Motion A) The existing Sarpanch Shri Shrikrishna Digambarrao Jadhao does not run the affairs of the Gram Panchayat by taking any member into confidence. B) The existing Sarpanch does illegal activities by misusing his post. C) The existing Sarpanch intentionally neglects the electricity and water problems in the village. D) After making recovery of the taxes of Gram Panchayat, the existing Sarpanch directly spends that amount instead of depositing it in the bank. Detailed information was given as regards to above all the four points in the meeting. Detailed discussion is not held in the meeting. The members are not taken into confidence while doing any work. He tries to divide the members. The affairs are not carried out unanimously. He issues domicile certificate to those persons who are not actual residents of the village, instead of issuing it to those who are actual residents of the village. On making request to clear choke up as regards the dam, it is not done. Electric bulbs are fitted only at the time of the festivals. The amount collected by way of recovery of Gram Panchayat's house tax and water tax is used for personal work by keeping it with self, instead of depositing it in the bank. Resolution was passed to deposit the recovery amount in the bank. But, the said resolution is not implemented. The amount is spent directly. The amount collected by way of recovery of Gram Panchayat's house tax and water tax is used for personal work by keeping it with self, instead of depositing it in the bank. Resolution was passed to deposit the recovery amount in the bank. But, the said resolution is not implemented. The amount is spent directly. On giving opportunity to the Sarpanch to give explanation on the said points, he gave his explanation as under: He explained that the points raised in No Confidence Motion are wrong. The domicile certificates are issued only to the residents. No avoidance is shown while issuing the certificates. No such resolution was passed where the present members were not taken into confidence. Water problem is solved immediately. Similarly, electric lights are also fitted regularly. However, due to the problems faced in the rainy season and unsound financial position of the Gram Panchayat, the electric lights are fitted only at the time of the festivals. (He further explained that) the statements made against him are wrong. Entire powers of recovery are as earlier up-till now any work is got done through the Secretary by giving order to him. Therefore, the question of spending the amount for personal use does not arise. The said village has been made "Hagandari Mukta" (free from easing in open) and the President award has been earned for the village. Development work have been done from time to time. The concerned members have filed an application to move No Confidence Motion only out of personal differences. The members who were present raised supplementary point regarding the remaining points. Houses and latrines in the village were dismantled. House bills were mm_ destroyed. Xx omission xx were legally dismantled. When the village is free of Hagandari (easing place in open) who go outside for easing. Due to personal reasons, latrines of some people were dismantled. There was no development of the village in any way. This fact is mentioned in the points. The Sarpanch of Gram Panchayat Bramhi submitted his objection on some official points. A) It was not mentioned in the notice for the meeting, issued on 17 -11-2008 that it was called for passing No Confidence Motion. B) It was not mentioned as to on which date and for what reason the notice was issued. C) The notice was not served on the people present in the village. A) It was not mentioned in the notice for the meeting, issued on 17 -11-2008 that it was called for passing No Confidence Motion. B) It was not mentioned as to on which date and for what reason the notice was issued. C) The notice was not served on the people present in the village. The objection application of the above person was rejected by passing a detailed written order on the aforesaid points. He was informed about the said application and order passed. Total No. of members of Gram Panchayat Bramhi is 7 out of whom one member was declared as disqualified. At present total No. of members is 6.2/3 of the said No. of members is required for passing No Confidence Motion and on actual voting, there were four (4) votes, in favour of the motion i.e. of 1) Shri Ram Sitaram Khobragade 2) Shri Himmat Prabhakar Sirsat 3) Shri Gajanan Pandurang Solanke 4) Sau. Rajendrabai Premchand Khobragade Similarly there were two 2) votes against the motion i.e. of 1) Shri Shrikrishna Digambarrao Jadhao and 2) Shri Narayanrao Dattaramji Jadhav. Hence it was declared that the No Confidence Motion against Shri Shrikrishna Digambarrao Jadhav, Sarpanch of Gram Panchayat Bramhi was passed. A vote of thanks was proposed to the persons present and the meeting of the members was declared over." 10. Petitioner has contended that the relevant objection was submitted by him in writing. Respondent Tahsildar had rejected that objection without any application of mind and therefore, he was not given proper opportunity to speak in defence in the meeting. 11. Perusal of the above minutes would show that petitioner was given opportunity to explain the charges which were sought to be pressed at the time of special meeting in support of No Confidence Motion. Therefore, it cannot be said that he was not given proper opportunity to explain his side. 12. As held by this Court in Yamunabai's case referred to above, provisions of Rule 2(2) are directory. The action of No Confidence Motion is not a punitive action and therefore, there is no necessity to give opportunity of hearing as it is required to be given in the matter where punitive action is sought to be taken. Paragraph 7 of the said judgment may be referred in this context. It is thus: "7. The action of No Confidence Motion is not a punitive action and therefore, there is no necessity to give opportunity of hearing as it is required to be given in the matter where punitive action is sought to be taken. Paragraph 7 of the said judgment may be referred in this context. It is thus: "7. The essence of a motion of no confidence is the expression by the elected members of a legislative body of a want of confidence or faith in the person or persons against whom the motion is moved. A motion of no confidence is not a removal for misconduct and it is not in the nature of disciplinary action adopted on account of charges of misbehaviour. A motion of no confidence is what it states it is an expression of a lack of confidence in the person. On the other hand, and in contradistinction to a motion of non-confidence, the Act makes provisions for the removal of a member of the Gram Panchayat in section 39. Section 39 contemplates the removal of any member of the Panchayat, the Sarpanch or Upa-Sarpanch where he is guilty of (i) misconduct in the discharge of his duties; or (ii) of a disgraceful conduct; or (iii) neglect or incapacity to perform his duty; or (iv) where such person is persistently remiss in the discharge thereof. The provision for removal has to be distinguished from an expression of no confidence. A removal is a disciplinary measure and in view of the well settled position of law, a removal has to be stated grounds after holding an enquiry. An enquiry is in fact, provided by sub-section (1) of section 39. On the other hand, a motion of no confidence is the ultimate expression by the members of a collective body, of the expression of a lack of faith in the person against whom that motion is moved." Paragraph 9 of the said judgment reads thus : "9. An enquiry is in fact, provided by sub-section (1) of section 39. On the other hand, a motion of no confidence is the ultimate expression by the members of a collective body, of the expression of a lack of faith in the person against whom that motion is moved." Paragraph 9 of the said judgment reads thus : "9. Under the Bombay Village Panchayat Act, 1958, what is made mandatory is (i) The moving of a motion of no confidence by a stipulated nwnber of members of the Gram Panchayat (one third); (ii) Those who move the motion must be entitled to sit and vote at a meeting of the Panchayat; (iii) The furnishing of a notice of requisition to the Tahsildar as prescribed; (iv) The convening by the Tahsildar of a special meeting of the Panchayat within a period of seven days of the receipt of the notice at the time and place specified; (v) The entitlement of the Sarpanch and Upa-Sarpanch to speak or to otherwise participate in the proceedings and to vote upon the resolution; and (vi) The passing of the motion by a majority of not less than two thirds of the total members of the Panchayat entitled to sit and vote. The provisions which the legislature considered as being mandatory in order to constitute a valid motion of no confidence have been specified in sub-sections (1), (2) and (3) of section 35. While construing the rules what must be borne in mind is that the act mandates the giving of a notice to the Tahsildar as prescribed. In construing as to which part of the rules is mandatory, regard must be had to the provisions of the parent legislation because the legislature has indicated in clear tenns therein those provisions in respect of which a punctilious compliance is expected. The members of the Gram Panchayat who seek to move a motion of no confidence against the Sarpanch or Upa Sarpanch or both are required to furnish a notice of their intention to do so to the Tahsildar. Before he convenes the meeting, the Tahsildar has to' be satisfied that the motion has been moved by one third of the total nwnber of members entitled to sit and vote. The Act then provides that the Tahsildar must convene a meeting of the Panchayat for considering the motion within a period of seven days. Before he convenes the meeting, the Tahsildar has to' be satisfied that the motion has been moved by one third of the total nwnber of members entitled to sit and vote. The Act then provides that the Tahsildar must convene a meeting of the Panchayat for considering the motion within a period of seven days. When he convenes a special me~ting of the Panchayat, the Tahsildar furnishes an intimation to the members of the Panchayat including the Sarpanch and Upa Sarpanch of the convening of the meeting. Sub-section (2) of section 35 requires the Tahsildar to convene a special meeting of the Panchayat for considering the motion and it is implicit therein that an intimation has to be furnished to all members of the Panchayat including the Sarpanch and UpaSarpanch who are sought to be proceeded against. In the event that the Sarpanch and the Upa Sarpanch seek, in addition, copies of the actual requisition that has been issued by the members of the Panchayat, it is open to them to move the Tahsildar by submitting an application. However, it would be impennissible for theCoUl1 to hold that resolution which has been duly passed by a two third majority, upon a requisition moved by one third of the members of the Panchayat eligible to sit and vote, at a meeting convened by the Tahsildar in accordance with law will stand invalidated merely because the Tahsildar has not sent a copy of the actual requisition to the Sarpanch or the Upa Sarpanch as the case may be. Such a requirement cannot be read into the provisions of section 3(2). The provisions contained in Rule 2(2) must be regarded as directory having regard to the true nature and purpose of a motion of no confidence. A motion of no confidence is not akin to disciplinary proceedings or a provision for removal for misconduct. A removal for misconduct is punitive. In such a case, a person who is sought to be proceeded against has to be furnished with a charge-sheet and the removal must take place by following an enquiry that is consistent with the principles of natural justice. A motion of no confidence on the other hand, does not partake of a punitive character nor is it based on charges . of misconduct which have to be proved. A motion of no confidence on the other hand, does not partake of a punitive character nor is it based on charges . of misconduct which have to be proved. A motion of no confidence is the fundamental expression of the collective will of the members of a legislative body that they lack confidence in one of their own. The contention that the right to speak at the meeting given to a Sarpanch or Upa Sarpanch requires that the requisition which has been moved be furnished to them cannot be acceded to. Should the Sarpanch or UpaSarpanch seek to have copies of the requisition, it is open to them to apply to the Tahsildar. However, whereas in the present case the Sarpanch or Upa-Sarpanch chooses to participate in the meeting whereafter a resolution is duly passed by the requisite majority, it would stultify the democratic process if the Court were to nullify the resolution on the ground that a copy of the requisition was not furnished to the Sarpanch or Upa-Sarpanch." Will show that when there is some opportunity given to the Sarpanch to explain his side when No Confidence Motion is moved against him would suffice. 13. I am aware that if there is glaring violation of mandatory procedure, interference by this Court or by statutory authorities would be warranted in view of the judgment of this Court in 1998(3) Mh.L.J. 204 , Nimba Rajaram Mali vs. Collector, Jalgaon and others. But then here is the case where members of Gram Panchayat who voted against petitioner are respondents, they are more in number in the strength of the members of six in the said Gram Panchayat. There is no difficulty in corning to the interference that it is 2/3 majority which is against the petitioner. . Probability expressed by the petitioner is that if he is allowed to explain his/stand in the special meeting, there would be some change on one or two respondents as regards their stand in support of the motion of the no confidence. It cannot be a sufficient reason to interfere with the impugned order, in the extra ordinary writ jurisdiction of this Court. 14. Learned Commissioner in the impugned order has observed in paragraph 5 as under: "5. It is fact that the Gram Panchayat is constituted of seven members body and appellant is one of them. It cannot be a sufficient reason to interfere with the impugned order, in the extra ordinary writ jurisdiction of this Court. 14. Learned Commissioner in the impugned order has observed in paragraph 5 as under: "5. It is fact that the Gram Panchayat is constituted of seven members body and appellant is one of them. Notices were served legally on all the members. Appellant's notice was affixed on his house in presence of panchas and therefore, it is legally served. Six members including the appellant were present in the special meeting convened by the Tahsildar, Darwha. Discussion took place in the meeting. Thereupon, Tahsildar has conducted the voting by raising of hands as there is no request of secret ballot. As the appellant was himself present in the special meeting then he cannot raised the issue of service of notice. Out of six members four voted in favour of the motion and two raised hand against the motion. Hence, Tahsildar, Presiding Officer, declared the motion as passed. ultimately, the resolution came to be passed by majority. No Confidence Motion passed by majority deserves to be maintained is upheld by the lower Court, hence I pass the following order: The appeal being devoid of merit is dismissed. The order of lower Court including that of passing of No Confidence Motion against the appellant are upheld." Thus he was in the knowledge of say of Panchas who had filed affidavits in this petition, as it was matter of record. 15. Tahsildar had conducted the voting by raising of hands, as there is no request of secret ballot. The discussion took place in the meeting. As already pointed out above, four members who had voted in favour of the motion are present respondents and they are still not supporting the petitioner. In democratic set up; the will of majority has to prevail. I have already pointed out that there is no punitive action like disqualification of the Sarpanch is contemplated. In my opinion, no interference is called for with the order impugned; in this petition. 16. In sequel the petition is liable to be dismissed. The same is dismissed. No order as to cost. Petition dismissed.