Judgment : Rule. Rule made returnable forthwith. Heard finally with the consent of the parties. 2. The writ petition No. 7569 of 2012 takes exception to the judgment and order passed by the Additional Collector, Parbhani dated 11th June, 2012 in Dispute No. 2012/A-1/VP/CR-29 and the judgment and order dated 30th July, 2012 passed by the Divisional Commissioner, Aurangabad Division, Aurangabad in Appeal No. DB/ Desk-2/ZPVP /Appeal /CR /55 /2012. The writ petition No. 7574 of 2012 takes exception to the judgment and order passed by the Additional Collector, Parbhani dated 11th June, 2012 in Dispute No. 2012/A-1/VP/CR-28 and the judgment and order dated 30th July, 2012 passed by the Divisional Commissioner, Aurangabad Division, Aurangabad in Appeal No. DB/ Desk-2/ZPVP /Appeal/CR /54/2012. 3. The background facts for filing the writ petitions, as disclosed in the petitions, are as under:- It is the case of the petitioners that, the general elections of the Grampanchayat Amdapur, Taluka and District Parbhani were held in the year 2010. The Grampanchayat consists in all 11 members and in general elections of the members of the Grampanchayat Amadpur, the petitioners herein, alongwith respondent Nos. 4 to 6 herein, got elected being members of the panchayat. The election for the post of Sarpanch was conducted and respondent No. 5 Shri. Balasaheb Ganeshrao Giram got elected as Sarpanch. It is the case of the petitioners that, respondent No.5 in W.P. No. 7569 of 2012, being Sarpanch and respondent No.4 Smt. Shashikalabai Ranu Banmare in W.P. No. 7574 of 2012, being Upa-Sarpanch, were inefficient and committed misdeeds during their tenure as Sarpanch and Upa-Sarpanch. They lost confidence of the majority of the members and the majority of members were unwilling to continue them as Sarpanch and Upa-Sarpanch of the Grampanchayat. It is the case of the petitioners that, on 7th April, 2012 the petitioners herein, moved requisition for calling special meeting to discuss the motion of no confidence against the Sarpanch. Separate motion was also moved for calling special meeting against Up-Sarpanch i.e. respondent No. 4 herein. 4. It is further case of the petitioners that, the Tahasildar, Parbhani called special meeting to discuss the motion of no confidence against Saranch as well as Up-Sarpanch of village Amdapur on 12th April, 2012. Separate motion was also moved for calling special meeting against Up-Sarpanch i.e. respondent No. 4 herein. 4. It is further case of the petitioners that, the Tahasildar, Parbhani called special meeting to discuss the motion of no confidence against Saranch as well as Up-Sarpanch of village Amdapur on 12th April, 2012. It is the case of the petitioners that, notices were issued to each and every member of the Grampanchayat giving date, time and venue of the special meeting. It is further case of the petitioners that, notices of the special meeting were served properly on all the members. The notice of the said no confidence motion was served upon respondent No. 5 i.e. Sarpanch, through his brothers namely Manik and Nagorao, who are major and the members of the family of respondent No. 5. It is further case of the petitioners that, special meeting was held on 12th April, 2012 and out of 11, 8 members of the Grampanchayat, Amdapur, attended the special meeting to discuss the motion of no confidence. It is further case of the petitioners that, respondent Nos. 4 to 6 herein, intentionally remained absent in the said meeting though they were served and were having knowledge about the meeting dated 12th April, 2012. It is further case of the petitioners that, in the meeting dated 12th April, 2012, the members present in the meeting discussed about the motion and out of 11, 8 members voted in favour of the motion of 'no confidence' against Sarpanch and Upa-Sarpanch. As 8 members out of 11, voted in favour of the motion of 'no confidence' against Sarpanch as well as Upa-Sarpanch, the Presiding Officer has declared that, the motion of 'no confidence' is passed by the majority. 5. It is further case of the petitioners that, respondent Nos. 5 and 4 respectively in W.P. Nos. 7569/2012 and 7574 of 2012, filed Disputes before the Additional Collector, Parbhani challenging the proceedings of the special meeting dated 12th April, 2012 with prayer that, to declare the motion of 'no confidence' against them as null and void. The Additional Collector, Parbhani vide his judgment and order dated 11th June, 2012 allowed the disputes filed by respondent Nos.5 and 4. Being aggrieved, the petitioners herein, preferred appeals before the Divisional Commissioner, Aurangabad Division, Aurangabad, however, the said appeals came to be dismissed. Hence the writ petitions. 6. The Additional Collector, Parbhani vide his judgment and order dated 11th June, 2012 allowed the disputes filed by respondent Nos.5 and 4. Being aggrieved, the petitioners herein, preferred appeals before the Divisional Commissioner, Aurangabad Division, Aurangabad, however, the said appeals came to be dismissed. Hence the writ petitions. 6. In pursuant to the notices issued to the respondents, respondent No. 2 Mr. Vishwambhar s/o Marotirao Gavande, working as Additional Collector, Parbhani has filed affidavit in reply. In the said affidavit in reply, it is stated that, the judgment and order passed by the Additional Collector which is confirmed by the Divisional Commissioner, Aurangabad is in accordance with relevant provisions of the Act and also relevant rules and the petition is devoid of any merits, therefore, same may be rejected. 7. Respondent No. 5 in Writ Petition No. 7569 of 2012 has also filed affidavit in reply. By way of filing the said affidavit in reply, respondent No. 5 has denied the contentions in paragraph Nos. 2 and 3 in the petition. In paragraph 4, it is stated that, the contents of paragraph-4 in the petition are true to the extent that, notice of special meeting was issued by the Tahsildar, Parbhani, however, rest of the contentions are denied by respondent No.5. It is further stated that, notice of special meeting scheduled on 12th April, 2012 has not been served upon respondent No. 5. The service report did not disclose any reason for service of notice on Manik and Nagorao. Though they are relative (brother and cousin brother), they are residing separately from the deponent. They are not family members of the deponent and they are residing separately. It is further contended in paragraph-4 that, in absence of proper service of notice of the special meeting dated 12th April, 2012, the entire proceedings of the special meeting and resolution stands vitiated. In paragraph-5 it is denied that, notice of no confidence motion was served upon respondent No. 5. In paragraph-6 the contentions is raised that, the manner in which the said meeting is conducted, is not in accordance with relevant rules. The said meeting is conducted in a very casual manner. No separate motion against Sarpanch or Up-Sarpanch is put for voting which is mandatory. In paragraph-6 the contentions is raised that, the manner in which the said meeting is conducted, is not in accordance with relevant rules. The said meeting is conducted in a very casual manner. No separate motion against Sarpanch or Up-Sarpanch is put for voting which is mandatory. It is further stated that, procedure laid down under the Bombay Village Panchayat (Meeting) Rules, 1959, was not followed and therefore, the entire proceedings of special meeting dated 12th April, 2012 vitiates and same is illegal as held by the Additional Collector as well as Divisional Commissioner. It is stated in paragraph-8 that, the orders passed by the Additional Collector as well as Divisional Commissioner are after scrutiny of the material placed on record and after appreciating rival contentions and it is prayed that, interference in such concurrent findings is unwarranted. In other paragraphs from paragraph Nos. 9 to 12 grounds taken in the petition are denied. In paragraph-13, it is stated that, the deponent is elected as Sarpanch by following due procedure of law laid down under the Bombay Village Panchayats Act, 1958 and he has every right to hold the post of Sarpanch till his tenure his over or he will be removed from the office by following democratic procedure laid down under the Act. In paragraph-14, at the cost of repetition, it is further stated that, in absence of proper service of notice, the entire proceeding is vitiated. The signature appeared on service report in respect of meeting are of one Manik Manchakrao Giram and Nagorao Manchakrao Giram. Manik Manchakrao Giram is cousin brother of deponent and Nagorao Ganeshrao Giram is real brother of deponent, however, corrected name is Nagorao Ganeshrao Giram, who is real brother of the deponent. But both Manik and Nagorao are residing separately from deponent, therefore, they are not family members. Respondent No. 5 has also placed on record extract of Numuna No.8 in respect of residential houses of deponent, Manik Manchakrao Giram and Nagorao Ganeshrao Giram. It is further stated that, upon perusal of service report, it is not clear that, why two signatures have been taken on the said service report. It is further stated that, there is a clear violation of Rule 2(2B) Sub-Rule (1) of the Bombay Village Panchayat Sarpanch and Up-Sarpanch (No Confidence Motion) Rules, 1975. It is further stated that, upon perusal of service report, it is not clear that, why two signatures have been taken on the said service report. It is further stated that, there is a clear violation of Rule 2(2B) Sub-Rule (1) of the Bombay Village Panchayat Sarpanch and Up-Sarpanch (No Confidence Motion) Rules, 1975. In paragraph-15 it is stated that, both the forums below have rightly concluded that, there was no service of notice on respondent No.5 and no proper procedure is followed, therefore, entire proceedings of meeting which was called for discussion on 'no confidence' motion stood vitiated. In paragraph-16 of the affidavit in reply, it is stated that, the Divisional Commissioner has rightly placed reliance and considered ratio laid down in Writ Petition No. 2212 of 2007 of this Court. It is stated in para-18 that, the special meeting dated 12th April, 2012 is not conducted as per procedure and in a technical manner. The mandatory procedure is not followed, hence both the forums below have rightly held that, the special meeting dated 12th April, 2012 is vitiated. In paragraph No. 19 to 23 more or less, the contentions are reiterated or repeated. It is stated in paragraph-19 that, if the resolution is not passed against the deponent by following the principles of natural justice, there was no question to make way to will of majority. In rest of the paragraphs, there is reiteration and repetition of the contentions raised in earlier paragraphs and ultimately, it is prayed that, the petition may be dismissed. 8. In reply to the reply filed by respondent No. 5, the petitioners have filed rejoinder affidavit. By way of filing rejoinder affidavit, it is stated that, notice of the special meeting was properly served and communicated to each and every member. The notice of special meeting was served on real and cousin brother of respondent No. 5 namely Nagorao and Manik respectively. The contention in paragraph-4 of the affidavit in reply of respondent No.5 that, Manik and Nagorao are residing separately from respondent No. 5, is stated to be false and same is denied. In paragraph-3 it is denied that, respondent No. 5 had no knowledge in respect of no confidence motion. In paragraph-4 it is stated that, rules made under the said Act, are not mandatory. In paragraph-3 it is denied that, respondent No. 5 had no knowledge in respect of no confidence motion. In paragraph-4 it is stated that, rules made under the said Act, are not mandatory. The non observance of the Rules does not vitiate the proceedings of the meeting and more particularly when the motion is passed by requisite majority. The requisition was moved by appropriate majority and the members present in the meeting were well aware that the special meeting is called to discuss the motion against the Sarpanch as well as Upa-Sarpanch. No confidence motion is passed by majority of 2/3rd members present in the meeting. It is stated that, no any prejudice has been caused to them due to common voting in the special meeting. In paragraph-9 it is stated that, list of voters prepared for the general election of Grampanchayat Ward No. 3 of Grampanchayat Amdapur shows that, respondent No.5 Balasaheb alongwith his father Ganeshrao, mother Subhadrabai, wife Ratnamala, brother Nagorao and sister in law Gangasagar are residing in one and same house i.e. House No. 29. They are the members of joint family and are residing in one and same house. The petitioners have placed on record the copy of the voters list of Ward No. 3 of Grampanchayat Amdapur alongith rejoinder affidavit. In paragraph-12 it is stated that, inadvertently, name of the deponent is appearing as Nandabai w/o Bhagwan Giram in stead of Nanandabai w/o Bhagwan Bhole in the title clause of the writ petition and in the proceedings before the Divisional Commissioner. Respondent No. 4 in Writ Petition No. 7574 of 2012 has also filed affidavit in reply. By way of filing the said affidavit in reply, respondent No. 4 has denied the contentions in paragraph No. 2 in the petition except respondent No. 4 came to be elected as Upa-Sarpanch of Grampanchayat Amdapur. In paragraph 4, it is stated that, the contents of paragraph-4 in the petition are true to the extent that, notice of special meeting issued by the Tahsildar, Parbhani, however, rest of the contentions are denied by respondent No.4. It is further stated that, notice of special meeting scheduled on 12th April, 2012 has not been served upon respondent No. 4. The contents of paragraph-5 of the petition are denied by respondent No.4. It is further stated that, notice of special meeting scheduled on 12th April, 2012 has not been served upon respondent No. 4. The contents of paragraph-5 of the petition are denied by respondent No.4. It is stated that, notice of no confidence was not served on respondent No.4, therefore, there is no question of having knowledge about special meeting. It is further contended in paragraph-6 that, if the proceedings of special meeting are perused then it appears that, the meeting was not conducted as per Rules. It appears from the perusal of proceedings that, the name of proposer and seconder for the motion is not mentioned. It is further stated that, from reading proceedings it is not clear that, the said motion and voting is taken against Sarpanch and Upa-Sarpanch or against both. Even in the last paragraph, learned Tahsildar is silent about against whom the motion is passed. It is only mentioned that, the motion is passed. It is only mentioned that, the motion is passed by majority. The special meeting is conducted in very casual manner and no separate motion against Sarpanch and Upa-Sarpanch is put for voting, which is mandatory. Under such facts and circumstances, it is clear that, the procedure laid down under the Bombay Village Panchayats (Meeting) Rules, 1959 was not followed, hence, the entire proceedings of special meeting dated 12th April, 2012 vitiates and illegal, as rightly held by both the lower authorities. It is further stated in paragraph-8 that, learned Additional Collector after going through the entire record of special meeting dated 12th April, 2012 and after giving due opportunity of hearing to all the parties has rightly come to the conclusion that, the motion of no confidence against Sarpanch as well as Upa-Sarpanch were put to vote at one time, which is fragrant violation of mandatory procedure laid down under the Act and Rules, hence rightly allowed the Dispute vide its judgment and order dated 11th June, 2012. It is further stated in paragraph-10 that, the learned Divisional Commissioner, Aurangabad has properly considered the facts as well as the law point involved in the case and dismissed the appeal by well reasoned order. It is further stated in paragraph-10 that, the learned Divisional Commissioner, Aurangabad has properly considered the facts as well as the law point involved in the case and dismissed the appeal by well reasoned order. In paragraph-13, it is stated that, the deponent is elected as Upa-Sarpanch by following due procedure of law laid down under the Bombay Village Panchayats Act, 1958 and she has every right to hold the post of Upa-Sarpanch till her tenure is over or she will be removed from the office by following democratic procedure laid down under the Act. In paragraph-14, it is further stated that, the motion of no confidence against Sarpanch and Upa-Sarpanch can be brought at once, but the separate motion is required to be placed before the special meeting and separate voting is required to be taken on the motion, but the procedure laid down is not followed in the present case, hence both the forums below rightly held that, the motion is not carried out by following due procedure. In paragraph-15 it is stated that, both the forums below have rightly concluded that, there was no confidence motion against Sarpanch and Upa-Sarpanch which vitiates the entire proceedings. In paragraph-16 it is stated that, the Divisional Commissioner has rightly placed reliance and considered ratio laid down in Writ Petition No. 2212 of 2007 of this Court. It is stated in para-18 that, the defect in the special meeting dated 12th April, 2012 is not technical. The mandatory procedure is not followed, hence both the forums below have rightly held that, the special meeting dated 12th April, 2012 is vitiated. In paragraph-20 it is stated that, the dispute of respondent No. 4 before the Additional Collector, Parbhani is mainly based on non service of notice of special meeting and common voting is not permissible. In rest of the paragraphs, there is reiteration and repetition of the contentions raised in earlier paragraphs and ultimately, it is prayed that, the petition may be dismissed. In reply, to the reply filed by respondent No. 4, the petitioners have filed rejoinder affidavit. By way of filing rejoinder affidavit, it is stated that, notice of the special meeting was properly served and communicated to each and every member. The notice of special meeting was served on real and cousin brother of respondent No. 5 namely Nagorao and Manik respectively. By way of filing rejoinder affidavit, it is stated that, notice of the special meeting was properly served and communicated to each and every member. The notice of special meeting was served on real and cousin brother of respondent No. 5 namely Nagorao and Manik respectively. The contention in paragraph-4 of the affidavit in reply that, Manik and Nagorao are residing separately from respondent No. 5 is false and same is denied. In paragraph-3 it is denied that, there was no proper service of notice of special meeting to respondent No.4. In paragraph-5 it is stated that, rules made under the said Act are not mandatory. The non-observance of the Rules does not vitiate the proceedings of the meeting and more particularly when the motion is passed by requisite majority. The requisition was moved by appropriate majority and the members present in the meeting were well aware that the special meeting is called to discuss the motion against the Sarpanch as well as Upa-Sarpanch. No confidence motion is passed by majority of 2/3rd members present in the meeting. It is stated that, no any prejudice would be caused to them due to common voting in the special meeting both of them. In paragraph-7, it is stated that, respondent NO. 4 shall not be allowed to thrust herself against the wish and will of majority. In paragraph-8 it is stated that, in no way either respondent No. 4 or respondent No. 5 are affected by the common voting and the motion of no confidence against Sarpanch and Upa-Sarpanch. In peculiar facts and circumstances of the case, when both the Sarpanch and Upa-Sarpamnch chosen to remain absent in the special meeting, they cannot take any benefit of the common voting. In paragraph-9 it is stated that, respondent No.4 by taking disadvantage of the procedural aspects which are not touching to the root of the matter of the proceedings of the special meeting is thrusting herself against the will and wish of majority. In paragraph-11, it is stated that, inadvertently the name of deponent is appearing as Nandabai w/o Bhagwan Giram in stead of Nanandabai w/o Bhagwan Bhole in the title clause of the writ petition and in the proceedings before the Divisional Commissioner. 9. Both the matters are extensively heard. In paragraph-11, it is stated that, inadvertently the name of deponent is appearing as Nandabai w/o Bhagwan Giram in stead of Nanandabai w/o Bhagwan Bhole in the title clause of the writ petition and in the proceedings before the Divisional Commissioner. 9. Both the matters are extensively heard. The petitioners in both the petitions have challenged the judgment and order of the Additional Collector which is confirmed by the Divisional Commissioner, on the following grounds:- (1) The 8 out of 11 members voted in favour of motion of no confidence against Sarpanch and Upa-Sarpanch. The Sarpanch, present respondent No. 5 in W.P. No.7569 of 2012 and Upa-Sarpanch, present respondent No.4 in W.P. No. 7574 of 2012 have lost the majority and they have no right to remain as a Sarpanch and Upa-Sarpanch of the Grampanchayat against the will of majority. (2) The motion was passed legally by majority of 2/3rd votes as required under the Provisions of Bombay Village Panchayats Act, 1958 (for short, "Act of 1958"). (3) The Addl. Collector, committed illegality by observing that, the notice to respondent No. 5 in W.P. No. 7569 of 2012, is not served properly. The notices were duly served to the major and male family members of respondent No.5. Moreover, the will of majority ought not to have been defeated on such technical grounds of service of notice. (4) The Learned Authorities below have wrongly held that, voting against the motion of no confidence against both the Sarpanch and Upa-Sarpanch should have been separate. A common voting held in the special meeting dated 12th April, 2012, in respect of the motion of the no confidence against Sarpanch as well as Upa-Sarpanch is a technical aspect and no prejudice is caused to either Sarpanch or Upa-Sarpanch. The members who were present in the meeting were know about their voting and they have voted in favour of no confidence against Sarpanch as well as Upa-Sarpanch. (5) The reliance placed by the learned Divisional Commissioner, on the reported Judgment in Writ Petition No. 2212 of 2007, dated 11th September, 2008 is wrong. There is wrong appreciation of that citation by the learned Divisional Commissioner. (6) The observations of the authorities below that, a separate voting must be held against the motion of no confidence of Sarpanch and Upa-Sarpanch is bad in law. There is wrong appreciation of that citation by the learned Divisional Commissioner. (6) The observations of the authorities below that, a separate voting must be held against the motion of no confidence of Sarpanch and Upa-Sarpanch is bad in law. The said preposition of law is against the provisions of the Act, 1958 and the Rules made there under. The Act, 1958 nowhere prescribes that, the motion be put for separate voting against Sarpanch and UpSarpanch. (7) The defect in proceedings of the Special Meeting dated 12th April, 2012, cannot be attributed against the majority i.e., the petitioners. The technical defect if any in carrying out the special meeting shall not be used to defeat the will of majority. The special meeting was presided over by the Presiding Officer. (8) The respondent No.5 in W.P. No. 7569 of 2012 and respondent No. 4 in W.P. No. 7574 of 2012 themselves were under legal obligation to make a way to majority and should have stepped down. In stead of that, they involved themselves in the litigation and shown utter disregard to the will of majority. (9) The disputes filed by present respondent Nos. 5 and 4 before the Additional Collector, Parbhani were not maintainable for non joinder of necessary and proper parties. The Grampanchayat was not the party to the disputes which was necessary party. The disputes were not within the limitation. (10) There is no evidence on record that, respondent Nos. 5 and 4 were in dark about the special meeting. There are no allegation of bias, malafide against the Tahsildar that, the notice was not properly served to respondent Nos. 5 and 4 by Tahsildar or he has not conducted the proceedings of the special meeting with ulterior and oblique motive. (11) Both the authorities below have given much value to mere irregularities. The rules framed under the Act, 1958 are mere directory in nature and not mandatory. The provisions of the Bombay Village Panchayats Sarpanch and Upa-Sarpanch (No Confidence Motion) Rules, 1975 are directory in nature. The Rules framed under the Act, 1958 are a part of delegated legislation and framed only for smooth functioning of the meeting. The provisions of the Rules 1975 as well as the provisions of the Bombay Village Panchayats (Meeting) Rules, 1959 are directory in nature and not mandatory. The learned Authorities below committed illegality by reading those provisions as mandatory. The Rules framed under the Act, 1958 are a part of delegated legislation and framed only for smooth functioning of the meeting. The provisions of the Rules 1975 as well as the provisions of the Bombay Village Panchayats (Meeting) Rules, 1959 are directory in nature and not mandatory. The learned Authorities below committed illegality by reading those provisions as mandatory. (12) The petitioners who moved the motion and voted in favour of no confidence and who are the laymen and villagers cannot be held liable for any irregularity occurred due to Presiding Officer of the meeting. In addition to the pleadings and grounds taken in the writ petitions, learned Counsel appearing for the petitioners invited my attention to the relevant provisions of Bombay Village Panchayats Sarpanch and Upa-Sarpanch (No Confidence Motion) Rules, 1975 (for short, "Rules of 1975") and in particular sub rule (2B) of Rule 2 of the Rules of 1975. Relying upon sub rule (2B) of Rule 2 of the Rules, 1975, the Counsel appearing for the petitioners submitted that, every notice under sub rule (1), wherever it may be practicable, be served by delivering or tendering it to the Sarpanch or Upa-Saranch 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, Upa-Sarpanch 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 witness, on the outer door or some other conspicuous part of the house in which such Sarpanch or Upa-Sarpanch ordinarily dwells. The notice served in the manner shall be deemed to be served or tendered or delivered to the concerned Sarpanch or Upa-Sarpanch. The submission of the Counsel for the petitioners is that, in the facts of the present case, respondent No. 5 was not present when Talathi went to serve respondent No.5, therefore, the notice of no confidence motion was served upon the brother and cousin brother of respondent No.5. Learned Counsel invited my attention to Exhibit-B at page 17 of the compilation of the petition No. 7569 of 2012 and submitted that, notice of no confidence motion was served upon Manik Manchakrao Giram and Nagorao Ganeshrao Giram, brother and cousin brother of respondent No. 5. Learned Counsel invited my attention to Exhibit-B at page 17 of the compilation of the petition No. 7569 of 2012 and submitted that, notice of no confidence motion was served upon Manik Manchakrao Giram and Nagorao Ganeshrao Giram, brother and cousin brother of respondent No. 5. According to the Counsel for the petitioners, in case, notice is served upon family members of the Sarpanch or Upa-Sarpanch, as the case may be, it is not necessary to draw any panchnama or mention anything on said notice that, notice is served upon the family member of Sarpanch or Upa-Sarpanch, once such notice is received by family member and acknowledgment is given by the family member. 10. It is submitted that, the reasons assigned by the Additional Collector while entertaining the dispute that, there is no mention on the said notice or in the report of Talathi that, since respondent No. 5 was not present in his house, said notice is served upon his brother or his cousin brother, therefore, said notice is not in accordance with Rules. It is submitted that, said reasons are not in consonance with provisions of sub rule (2B) of Rule 2 of the Rules of 1975. According to the Counsel for the petitioners, the provisions of sub rule (2B) of Rule 2 of the Rules of 1975 do not contemplate such report or panchnama to be carried out by the Talathi. The panchnama is necessary only in case, the family members of the Sarpanch or Upa-Sarpanch, as the case may be, refused to accept the notice. Therefore, according to the Counsel for the petitioners, notice of no confidence motion was served upon respondent No. 5 and to that effect, he invited my attention to Exhibit-B at Page-17 of the compilation of the writ petition No. 7569 of 2012. It is submitted that, the second ground which is assigned by the Additional Collector, Parbhani while allowing the dispute filed by respondent No. 5 is that, there was voting for Sarpanch and Upa-Sarpanch at a time, and same is not permissible. According to the learned Counsel for the petitioners, in view of sub rule (1) of rule 2 of the Rules of 1975, what is contemplated is, where the members desire to move the motion of no confidence against the Sarpanch as well as the Upa-Sarpanch, they shall give two separate notices. According to the learned Counsel for the petitioners, in view of sub rule (1) of rule 2 of the Rules of 1975, what is contemplated is, where the members desire to move the motion of no confidence against the Sarpanch as well as the Upa-Sarpanch, they shall give two separate notices. In the present case, two notices were given and therefore, said mandate of sub rule (1) of rule 2 of the Rules of 1975 has been fulfilled. There is no requirement or there is nothing in said rules, which prevents the authority from having voting of 'no confidence' motion at a time against Sarpanch and Upa-Sarpanch. Learned Counsel for the petitioners submits that, reliance placed by the Additional Commissioner, Parbhani upon the reported judgment of this Court in the matter of AshabaiAshok Shinde vs. Additional Commissioner, Amravati Division and others [2009(2) Bom.C.R. 880] is wholly misplaced in the facts of this case. Even in that case, the Court has observed that, rules are silent whether voting can be done at a time, if no confidence motion is against Sarpanch and Upa-Saranch. Learned Counsel, therefore, submits that, there is compliance of Rules of 1975. Notice was properly served upon respondent No. 5 through his brother and cousin brother, and to that effect, the Tahsildar was satisfied and thereafter, the special meeting is conducted. Learned Counsel invited my attention to the reported judgment of this Court in the case of AppaMunjaji Pawar vs. Divisional Commissioner and others [2009(5) Bom. CR 691] and in particular paragraph-9 of the said judgment. It is submitted that, in facts of this case, it is difficult to appreciate that, when all other members of the Grampanchayat are served and received notice, it is only respondent No. 5 who has not received notice for no confidence motion. Learned Counsel also submitted that, this Court in the case of Appa Munjaji Pawar (supra) has considered the earlier two Division Bench judgments and has taken a view that, in a democratic State it is the will of majority that must prevail. Once a person looses the confidence of a majority, as required under the statute, he has no right to continue in the office and thrust himself against the wishes of the majority of the members. 11. Once a person looses the confidence of a majority, as required under the statute, he has no right to continue in the office and thrust himself against the wishes of the majority of the members. 11. Learned Counsel for the petitioners also placed reliance on reported judgment of this Court in the case of NimbaRajaram Mali vs. Collector, Jalgaon and others [ 1999 (1) Bom.C.R. 546 ] and submitted that, in the facts of that case, the Division Bench of this Court has taken a view that, no confidence motion passed by majority should be honoured by the Sarpanch or Upa-Sarpanch, as the case may be, and the majority will must prevail in democracy. Learned Counsel invited my attention to reported judgment of this Court in the case of YamunabaiLaxman Chavan and others vs. Sarubai Tukaram Jadhav and others [2004(Supp.2) Bom.C.R. 1031] in which, this Court had occasion to interpret the provisions of Section 35 of the Act of 1958 and also Rules of 1975 and on interpretation of the Rules and provisions of Section 35, this Court had taken a view that, in a democratic State popular will should prevail and rules should be construed in a manner which would not defeat the resolution of no confidence motion passed against Sarpanch or Upa-Sarpanch, as the case may be. Therefore, relying upon the grounds taken in the petitions, annexures thereto, rejoinder affidavits, and aforesaid judgments of this Court and relevant provisions of the Act and Rules, the Counsel for the petitioners would submit that, there was valid service of notice on respondent Nos. 4 and 5, brother and cousin brother of respondent No.5 are family members, their names are included in the voters list prepared for general elections for Grampanchayat Ward No.3 of village Amdapur, Taluka and District Parbhani, for the year 2010, in which same house is shown, where all of them resides. Therefore, the Counsel appearing for the petitioners submits that, the writ petitions may be allowed. 12. On the other hand, learned Counsel appearing for the respondents submitted that, Full Bench of this Court in the case of VishwasPandurang Mokal vs. Group Grampanchayat, Shihu and others [2011(3) Mh.L.J. 500] had occasion to interpret Rules of 1975. Learned Counsel invited my attention to paragraph Nos. 17 and 18 of the said judgment. 12. On the other hand, learned Counsel appearing for the respondents submitted that, Full Bench of this Court in the case of VishwasPandurang Mokal vs. Group Grampanchayat, Shihu and others [2011(3) Mh.L.J. 500] had occasion to interpret Rules of 1975. Learned Counsel invited my attention to paragraph Nos. 17 and 18 of the said judgment. Learned Counsel invited my attention to the annexures to the affidavit in reply and submitted that, service of notice as contemplated in sub rule (2B) of Rule 2 of the said Rules, 1975, was not served personally upon respondent No.5. The brother and cousin brother of respondent No.5 are not residing with him. They are separately residing. It is submitted that, when dispute was filed, there was no question of taking any ground in dispute that, the copy of the notices are given to the brother and cousin brother of respondent No.5, since respondent No.5 had no knowledge that, such notice is served upon brother and cousin brother. Learned Counsel submits that, in absence of service of notice, there is no question of conducting no confidence motion and participation of respondent No. 5 in the said meeting. It is submitted that, in a democratic set up, Sarpanch and Upa-Sarpanch have right to participate in the meeting and they have right to address the meeting. Therefore, the Counsel for respondent Nos. 5 and 4 would submit that, if there is no service of notice, the entire proceedings stand vitiated. The Additional Collector, Parbhani and the Divisional Commissioner, Aurangabad Division, Aurangabad have rightly held that, there was no service as contemplated under the relevant rules and therefore, the entire further proceedings including meeting for no confidence motion stands vitiated. Learned Counsel further submitted that, this Court in the case of Ashabai Ashok Shinde (supra) has taken a view that, it is difficult to hold that, provisions of Rule 2 sub rule (1) is directory. The motion should have been put to vote separately against Sarpanch and Upa-Sarpanch. Therefore, learned Counsel for respondent Nos. 5 and 4 in respective writ petitions, submits that, it is admitted position that, in the facts of this case, there was no separate voting for Sarpanch and Upa-Sarpanch. The motion should have been put to vote separately against Sarpanch and Upa-Sarpanch. Therefore, learned Counsel for respondent Nos. 5 and 4 in respective writ petitions, submits that, it is admitted position that, in the facts of this case, there was no separate voting for Sarpanch and Upa-Sarpanch. The motion put to vote against Sarpanch and Upa-Sarpanch was at a time or same time and therefore, in view of the judgment in the case of Ashabai Ashok Shinde (supra), the entire proceedings of the said meeting stands vitiated. Learned Counsel appearing for respondent Nos.5 and 4, at the cost repetition, submitted that, brother and cousin brother of respondent No.5 are residing separately. Their house numbers are different. He invited my attention to the annexures to the affidavit in reply and submitted that, in the first place, the respondent No. 5 was not aware about the service of such notice on the brother and cousin brother of respondent No. 5 and secondly, they are residing separately, as it is stated in the affidavit in reply. Learned Counsel also invited my attention to the contentions raised in the affidavit in reply, annexures thereto and reasons/findings recorded by the Additional Collector, Parbhani and the Divisional Commissioner, Aurangabad Division, Aurangabad and submitted that, there are concurrent findings recorded by the Additional Collector, Parbhani and the Divisional Commissioner, Aurangabad Division, Aurangabad and therefore, this Court may not interfere in the concurrent findings of both the forums in the writ jurisdiction. 13. I have given careful consideration to the rival submissions. With the able assistance of learned Counsel appearing for the parties, perused the relevant rules and other material placed on record and judgments of this Court and the Supreme Court. At this juncture, it would be apposite to refer herein below Rule 2 of the Bombay Village Panchayats Sarpanch and Upa-Sarpanch (No Confidence Motion) Rules, 1975 which reads thus:- "2.(1) The members of a panchayat who desire to move a motion of non confidence against the Sarpanch or the Upa-Sarpanch 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 no confidence against the Sarpanch as well as the Upa-Sarpanch, they shall give two separate notices. Where the members desire to move the motion of no confidence against the Sarpanch as well as the Upa-Sarpanch, they shall give two separate notices. (2) The notice under sub-rule (1) shall be accompanies by nine additional copies thereof, and the Tahsildar shall send one copy to the Sarpanch, one to the Upa-Sarpanch and one each to the Zilla Parishad, the Panchayat Samiti, the Collector and the Commissioner. One copy shall also be given to the Secretary. (2-A) 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. (2-B) every notice under sub-rule (1), wherever it may be practicable, be served by delivering or tendering it to the Sarpanch or Upa-Sarpanch 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, Upa-Sarpanch 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 Upa-Sarpanch ordinarily dwells. The notice served in this manner shall be deemed to be served or tendered or delivered to the concerned Sarpanch or Upa-Sarpanch. (3) The Tahsildar shall, immediately on receipt of notice under sub-rule (1), satisfy himself that the notice has been given by not less than one-third of the total number of the members (other than associate members) who are for the time 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." (emphasis supplied). 14. Upon careful perusal of sub rule (1) of Rule 2 of the Rules of 1975, it is abundantly clear that, the members of a panchayat who desire to move a motion of no confidence against the Sarpanch or Upa-Sarpanch shall give notice thereof in the form appended to the said rule to the Tahsildar of the Taluka in which such panchayat is functioning. Where the members desire to move the motion of no confidence against the Sarpanch as well as Upa Sarpanch, they shall give two separate notices. Where the members desire to move the motion of no confidence against the Sarpanch as well as Upa Sarpanch, they shall give two separate notices. In the facts of this case, it is admitted position that, so far giving two notices are concerned, two separate notices are given as contemplated in sub rule (1) of Rule 2 of the Rules of 1975. Upon careful perusal of sub rule (2-B) of Rule 2 of Rules of 1975, the said rule contemplates, every notice under sub rule (1), wherever it may be practicable, be served by delivering or tendering it to the Sarpanch or Upa-Sarpanch 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, Upa-Sarpanch 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 Upa-Sarpanch ordinarily dwells. The notice served in this manner shall be deemed to be served or tendered or delivered to the concerned Sarpanch or Upa-Sarpanch. Therefore, the provision in the instant case from the said rules relevant to the facts of this case, is service of notice upon respondent No. 5 by delivering or tendering it to any adult member in the family residing with him. As it is evident from Page 17 at Exhibit-B of the compilation of the writ petition that, notice of special meeting addressed to respondent No. 5 Balasaheb s/o Ganeshrao Giram was served upon Manik Manchakrao Giram who is stated to be brother of respondent No. 5 and Nagorao Ganeshrao Giram, stated to be cousin brother of the respondent No.5. As it is evident from Page 17 at Exhibit-B of the compilation of the writ petition that, notice of special meeting addressed to respondent No. 5 Balasaheb s/o Ganeshrao Giram was served upon Manik Manchakrao Giram who is stated to be brother of respondent No. 5 and Nagorao Ganeshrao Giram, stated to be cousin brother of the respondent No.5. The finding recorded by the Additional Collector which is confirmed by the Divisional Commissioner that, there is nothing mentioned in the report of Talathi or in Exhibit 'B' i.e., copy of the said notice signed by brother and cousin brother of the respondent No. 5 that, why copy of the said notice is served upon brother or cousin brother of respondent No.5, and therefore, there is no valid service of notice, is not in conformity with the provisions of sub rule (2-B) of Rule 2 of Rules of 1975. 15. Upon careful perusal of sub rule 2(B) of Rule 2 of the Rules 1975, as observed earlier, the requirement of the rule is to effect service of notice on the family members in case, Sarpanch or Upa-Sarpanch is not available for service on the address. Therefore, what is important is that, to deliver or tender notice to any adult member of family of Sarpanch or Upa-Sarpanch. Though learned Counsel appearing for respondent Nos. 5 and 4 was at pains to invite my attention to the copies of annexures to the affidavit in reply to state that, brother and cousin brother are residing separately, on perusal of Page 63 of the compilation of W.P. No. 7569 of 2012, i.e. voters list which was prepared for Grampanchayat Election for the year 2010 at Serial Nos. 110, 111, 112, 113, 114 and 115, names of all family members of respondent No. 5 are shown residing in House No.29 of village Amdapur. The submission of Counsel for respondent Nos. 5 and 4 that, said voters list is prepared relying upon the earlier voters list of the election for Loksabha and Assembly and therefore, same is not authentic, is devoid of any merits. The said voters list is prepared and acted upon for the Grampanchayat election of village Amdapur, Taluka and District Parbhani and upon careful perusal of the names mentioned at Serial Nos. The said voters list is prepared and acted upon for the Grampanchayat election of village Amdapur, Taluka and District Parbhani and upon careful perusal of the names mentioned at Serial Nos. 110, 111, 112, 113, 114 and 115, it is abundantly clear that, names of Giram Balasaheb Ganeshrao and Giram Nagorao Ganeshrao stands at Serial No. 112 and 114. Therefore, it has to be observed that, at the relevant time, when there was service of notice, brother and cousin brother whose names are mentioned and who have signed the notice were residing in the House No. 29. Upon careful perusal of the grounds taken in the dispute by respondent No. 5, there is no single ground taken stating therein that, in the first place, he is not aware about the service of notice on his brother or cousin brother and secondly, such service of notice is not valid as per the provisions of sub rule (2-B) of Rule 2 of the Rules of 1975, for the reason that, they are residing separately. Upon careful perusal of the proceedings before the Additional Collector and the Divisional Commissioner, it is abundantly clear that, the grounds taken in the affidavit in reply, first time supported by copies showing that, brother and cousin brother namely Manik Manchakrao Giram and Nagorao Ganeshrao Giram are residing separately from respondent No.5, cannot be accepted. The copies of documents annexed with the affidavit in reply of the respondent No. 5 showing separate residence of his brothers, is not part of record before the forums below, therefore, such documents tendered first time deserves no consideration and therefore submissions of the Counsel for respondent No. 5 based upon said documents stands rejected. Therefore, the findings recorded by the Additional Collector and the Divisional Commissioner that, there is no valid service of notice on respondent No. 5 cannot sustain in the light of sub rule (2-B) of Rule 2 of the Rules of 1975. So far valid service of notice of 'no confidence' motion on respondent No. 4 i.e., Upa-Sarpanch is concerned, it is conceded by the Counsel for the said respondent that, there was proper service of notice, in accordance with said Rules. 16. Another ground on which the Additional Collector allowed the dispute filed by the respondent Nos. So far valid service of notice of 'no confidence' motion on respondent No. 4 i.e., Upa-Sarpanch is concerned, it is conceded by the Counsel for the said respondent that, there was proper service of notice, in accordance with said Rules. 16. Another ground on which the Additional Collector allowed the dispute filed by the respondent Nos. 4 and 5 is that, in view of the judgment of this Court in the case of Ashabai Ashok Shinde (supra), there was no separate notice for voting and no confidence motion have not been put to voting separately against Sarpanch and Upa-Sarpanch and therefore, the entire proceedings of the said meeting stands vitiated, is not in consonance with the scheme of rules provided under Rule 2 of the Rules of 1975. This Court even in the case of Ashabai Ashok Shinde (supra) in paragraph-10 observed that, the motion should have been put to vote separately against Sarpanch and Upa-Sarpanch, however, it is further observed that, the provision of section 35(1), (2) and (3) of the Bombay Village Panchayats Act is silent on the said issue. Therefore, observations of this Court in the facts of that case that, the motion should have been put to vote separately, are not on the basis of interpretation of any relevant Rule of said Rules, and therefore, does not lay down any ratio or law to be followed by the coordinate bench. This Court has observed that, rules are silent in that regard. Therefore, what is contemplated under the Rules while bringing no confidence motion against Sarpanch and Upa-Sarpanch where members desire to move motion of no confidence against Sarpanch and Upa-Sarpanch is that, they shall give two separate notices. Admittedly, the said compliance has been made in the facts of this case. Therefore, in my opinion, reliance placed by the Additional Commissioner upon the judgment in the case of Ashabai Ashok Shinde (supra) is wholly misplaced in the facts of this case. It is not clear on reading the facts of that case that, whether the provisions of sub-rule (1) of Rule 2 of the Rules of 1975 were complied with, or not. The Division Bench of this Court in the case of Nimba Rajaram Mali (supra) in the facts of that case, in paragraph-9 has observed that, notice was served by the Talathi on the brother of Sarpanch, who has signed the acknowledgment is valid notice. The Division Bench of this Court in the case of Nimba Rajaram Mali (supra) in the facts of that case, in paragraph-9 has observed that, notice was served by the Talathi on the brother of Sarpanch, who has signed the acknowledgment is valid notice. In the facts of the present case also as per record of the Tahsildar made available, notice is served upon the brother and cousin brother of the respondent No.5. Whether notice served upon brother, wife or son is valid or not, has been considered by this Court in the case of PrabhawatiVijaykumar Khivsara vs. State of Maharashtra [ 2008(3) Bom.C.R. 755 ], in the case of Laxmanvs. Grampanchayat Mangladevi [1965 Mh.L.J. 102] and in the case of MandataiPrabhakar Pande vs. The Additional Commissioner and others [ 2009(6) Mh.L.J. 596 ]. In all three judgments referred hereinabove, this Court has held that, the service of notice of 'no confidence' motion either upon wife, brother or son of Sarpanch or Upa-Sarpanch, as the case may be, if it is served in accordance with sub rule (2-B) of Rule 2 of Rules of 1975, is valid service. This Court in the case of Yamunabai Laxman Chavan and others (supra) in paragraph-9 observed that, 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. It follows from the two authoritative pronouncements of the Division Bench of this Court in case of Smt. Annapurnabai Ajabrao vs. Annapurnabai Anandrao [1967 Mh.L.J. 36] and NimbaRajaram Mali (supra) that, once Sarpanch and Upa-Sarpanch, as the case may be, has lost confidence of majority, he or she should make way to the other person to occupy the said chair by vacating office or by tendering resignation. In the facts of the present case, no confidence motion is passed by 2/3rd majority. Out of 11, 8 members have voted in favour of no confidence motion against respondent Nos.5 and 4. 17. In the facts of the present case, no confidence motion is passed by 2/3rd majority. Out of 11, 8 members have voted in favour of no confidence motion against respondent Nos.5 and 4. 17. Therefore, for the reasons aforesaid, in my considered opinion, the judgment and order of the Additional Collector, Parbhani in Dispute No. 2012/A-1/VP/CR-29 dated 11th June, 2012, also by the Divisional Commissioner, Aurangabad Division, Aurangabad in Appeal No. DB/Desk-2/ZPVP/Appeal/CR/55/2012 dated 30th July, 2012 impugned in Writ Petition No.7569 of 2012 and the judgment and order of the Additional Collector, Parbhani in Dispute No.2012/A1/VP/CR-28 dated 11th June, 2012, also by the Divisional Commissioner, Aurangabad Division, Aurangabad in Appeal No. DB/Desk-2/ ZPVP/Appeal/CR/54/2012 dated 30th July, 2012 impugned in Writ Petition No.7574 of 2012 deserves to be quashed and set aside. Accordingly, same are quashed and set aside. It is declared that, no confidence motion passed against respondent Nos. 4 and 5 dated 12th April, 2012 is in conformity with the provisions of Bombay Village Panchayats Act, 1958 and Rules of 1975, and same is valid, therefore, respondent Nos. 5 and 4 should vacate their office forthwith as Sarpanch and Upa-Sarpanch, as the case may be, and concerned authorities to take further steps to complete the elections of Sarpanch and Upa-Sarpanch as per relevant rules. Rule is made absolute on above terms. Both the writ petitions stand disposed of. At this stage, learned Counsel appearing for respondent Nos. 4 and 5 prays for stay to the effect, implementation and operation of the judgment for 15 days to enable respondent Nos. 4 and 5 to take further remedy. The prayer is vehemently opposed by the Counsel for the petitioners, however, since respondent Nos. 5 and 4 are working as Sarpanch and Upa- Sarpanch, respectively, in view of the judgment and order passed by the Additional Collector, which is confirmed by the Divisional Commissioner, Aurangabad Division, Aurangabad, it is desirable that, effect, implementation and operation of the judgment and order is stayed for three weeks. Accordingly, the effect, implementation and operation of the judgment and order is stayed for the period of three weeks from today. It is made clear that, after expiry of three weeks period i.e. on 1st March, 2013, stay granted by this Court today, would stand vacated and the judgment and order passed will take effect from 2nd March, 2013.