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2014 DIGILAW 2342 (BOM)

Vaishali Balasaheb Chavan v. Additional Collector

2014-11-25

R.V.GHUGE

body2014
JUDGMENT R.V. Ghuge, J. 1. I have heard the learned Advocate for the petitioner, learned A.G.P. on behalf of respondent Nos. 1 & 2 and Shri T.G. Gaikwad, learned Advocate on behalf of respondent No. 8, at length. 2. The petitioner has raised two issues for the consideration of this Court and which are as follows :- A] Whether the principles of natural justice have been violated by the learned Additional Collector, Ambajogai while dealing with the dispute No. 214/VAE/Appeal/06 and whether tjudgment dated 16-09-2014 would be affected by non-adherence of the principles of natural justice. B] Whether the no confidence motion passed against the petitioner by five is to zero vote count and dislodged her as a Sarpanch, is sustainable. 3. The petitioner has placed before this Court the Roznama pertaining to the hearing of the appeal by the Additional Collector. The Roznama pertains to the period 23-07-2014 till 10-09-2014. It is pointed out that the Advocate representing the petitioner was absent in the proceedings before the Additional Collector on 23-07-2014, 13-08-2014, 28-08-2014, 04-09-2014, 06-09-2014 and 10-09-2014. The Presiding Officer was unavailable on account of his official work on 23-07-2014, 28-08-2014 and 06-09-2014. The matter was closed for judgment on 10-09-2014 and the impugned judgment was delivered by the Additional Collector on 16-09-2014. 4. The learned Advocate for the petitioner has placed reliance on the judgment of the Apex Court in the case of Management of M/s. M.S. Nally Bharat Engineering Co. Ltd. Vs. State of Bihar and others, reported at (1990) 2 Supreme Court Cases 48 and the judgment of this Court dated 25-06-2014 delivered in Writ Petition No. 4696 of 2014 in the matter of Smt. Ankitabai Sahebrao Nikalje Vs. The Additional Collector, Ambajogai and others. 5. The petitioner further contends that the impugned judgment is an outcome of the non-adherence of the principles of natural justice. The respondents were given the opportunity to address the mind of the Additional Collector. Just because the Advocate was absent on 10-09-2014, the Additional Collector heard the respondents and closed the matter for judgment. The impugned judgment is, therefore, delivered exparte. 6. The learned Advocate has referred to paragraph Nos. 13 and 25 of the judgment of the Apex Court in the case of Management of M/s. M.S. Nally Bharat Engineering Co. Ltd. (supra), the same are reproduced here-in-below :- "13. The impugned judgment is, therefore, delivered exparte. 6. The learned Advocate has referred to paragraph Nos. 13 and 25 of the judgment of the Apex Court in the case of Management of M/s. M.S. Nally Bharat Engineering Co. Ltd. (supra), the same are reproduced here-in-below :- "13. What is thus important in the modern administration is the fairness of procedure with elimination of element of arbitrariness. The State functionaries must act fairly and reasonably. That is, however, not the same thing to state that they must act judicially or quasi judicially. In Keshav Mills Co. Ltd. v. Union of India, Mukherjea, J., said (SCC p. 387 Para 8: SCR p.30): "The administrative authority concerned should act fairly, impartially and reasonably. Where administrative officers are concerned, the duty is not so much to act judicially as to act fairly." "25. The management need not establish particular prejudice for want of such opportunity. In S.L. Kapoor v. Jagrnohan, Chinnappa Reddy, J., after referring to the observation of Donaldson, J., in Altco Ltd. v. Sutherland, said that the concept that justice must not only be done but be seen to be done is basic to our system and it is concerned not with a case of actual injustice but with the appearance of injustice or possible injustice. It was emphasized that the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary." 7. It is, therefore, submitted that for ensuring the fairness of the procedure and for elimination of the element of arbitrariness, the principles of natural justice have to be adhered to. The non-adherence of the said principle results in prejudice and also indicates an arbitrary approach by the quasi-judicial authority. 8. He has referred to the judgment delivered before this Court in the matter of Smt. Ankitabai Sahebrao Nikalje (supra), wherein this Court has concluded that the Additional Collector, Ambajogai has decided the matter hurriedly. The Presiding Officer himself was absent on three occasions and only because on 12-05-2014, the petitioner Smt. Anikitabai's Advocate was not present, the Presiding Officer closed the proceedings for judgment. 9. The Presiding Officer himself was absent on three occasions and only because on 12-05-2014, the petitioner Smt. Anikitabai's Advocate was not present, the Presiding Officer closed the proceedings for judgment. 9. In the instant case, it emerges from the record that in between seven dates of hearing before the Additional Collector, the Additional Collector was absent on two occasions and on one occasion there was a strike resorted to by the employees of the Revenue Department. Per contra, the petitioner's Advocate was absent on all the seven dates. A last chance was granted to him on 04-09-2014. The Roznama indicates that the matter was posted for advancing final arguments. The petitioner's Advocate could have entered written notes of arguments. 10. In this backdrop, I do not find that the view taken by this Court in the matter of Smt. Ankitabai would be applicable to this case. For the same reasons, the judgment of the Apex Court in the case of M/s. M.S. Nally Bharat Engineering Co. Ltd. (supra), is not be applicable. 11. Despite my above conclusion as regards the first issue raised by the petitioner, I have heard the learned Advocates for the respective sides even on the second issue only with the intention of scrutinising the judgment impugned so as to find out as to whether the no confidence motion is affected by violation of any of the mandatory provisions and the law. 12. The learned Advocate for the petitioner submits that the requisition moved by the members of the Grampanchayat was neither proposed nor seconded under Rule 17 of the Meeting Rules 1959. He, therefore, submits that when the requisition itself is not proposed or seconded, Rule 17 stands violated and this aspect is, therefore, fatal to the result of the proceedings of no confidence. According to him, the proceedings conducted and the no confidence motion passed on 02-06-2014 would be rendered a nullity. 13. It is further submitted that though the notice for convening the special meeting was served upon the petitioner, she was absent from the meeting dated 02-06-2014. Being a lady Sarpanch, the no confidence motion has to be passed by 3/4th majority. He further states that since the petitioner was absent, she could not participate in the debate and as such, right to defense was infringed by the Tahsildar, who conducted the special meeting. Being a lady Sarpanch, the no confidence motion has to be passed by 3/4th majority. He further states that since the petitioner was absent, she could not participate in the debate and as such, right to defense was infringed by the Tahsildar, who conducted the special meeting. Even on this count, the business transacted on the said date in the special meeting is rendered illegal. 14. The learned A.G.P. on behalf of the State has pointed out that the dispute raised by the petitioner was considered by the Additional Collector who conducted the hearing from 06-06-2014 till the impugned judgment dated 16-09-2014 was delivered. She, therefore, submits that it could not be stated that the Additional Collector has acted in undue haste. 15. Referring to the Roznama produced before this Court, she submits that out of the last seven dates for hearing, the Advocate for the petitioner was not present even on a single date. She therefore, states that the petitioner cannot allege deprivation of an opportunity of hearing. For the same reasons, the learned Advocate for respondent No. 8 has supported the impugned judgment. 16. In so far as the contention of the petitioner as regards compliance of Rule 17 is concerned, the said issue is no longer res integra. The full Bench of this Court has delivered its judgment on 09-10-2014 in the Case of Shri Tatyasaheb Ramchandra Kale Vs. Shri Navnath Tukaram Kakade and 17 others in LPA No. 312 of 2013. The conclusions of the Full Bench are seen in paragraph 21 of the judgment which reads as under :- "21. Finally to put the matter in perspective, the requirement of Rule 17 in the matter of proposing and seconding the motion cannot impinge upon the validity of the motion of no confidence which has otherwise been passed by fulfilling the requirement of Section 35(3) of the Bombay Village Panchayats Act, 1958. The infraction that has occurred on account of the motion not being formally proposed and seconded cannot invalidate the motion if the same has been passed by fulfilling the requirements of Section 35(3) of the BVP Act, as the said infraction does not affect the merits of the case. The infraction that has occurred on account of the motion not being formally proposed and seconded cannot invalidate the motion if the same has been passed by fulfilling the requirements of Section 35(3) of the BVP Act, as the said infraction does not affect the merits of the case. Hence we hold that Rule 17 is directory, and the test laid down in Section 44 of the BVP Act, namely whether the defects affects the merits of the case, would have to be applied, if a challenge is raised to such a motion. We accordingly answer the reference and remit the matter back to the Division Bench for the above Letters Patent Appeal being decided on merits." 17. As such, when the requisition motion was signed by 1/3rd members of the Grampanchayat, it is held that neither a proposer nor a seconder was required. The said aspect, therefore, would not adversely impact the business transacted in the special meeting dated 02-06-2014. 18. The record reveals that petitioner was served with the notice of the special meeting. She chose to remain absent. Naturally, she could not participate in the debate on the no confidence motion. In my view, this would not affect the result of the meeting since such a special meeting is required to be conducted within seven days from the date on which the Tahsildar receives the requisition motion, in accordance with Section 35(2) of the Maharashtra Village Panchayat Act. In the light of these facts, I do not find that the meeting held on 02-09-2014 could be said to be bad in law. 19. In the light of the above, this petition is devoid of merit and is, therefore, dismissed.