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2016 DIGILAW 1788 (BOM)

Nasrin Salim Shaikh v. State of Maharashtra

2016-09-23

T.V.NALAWADE

body2016
JUDGMENT : 1. Rule. Rule made returnable forthwith. Heard both sides by consent for final disposal. 2. The petition is filed by six members of Village Panchayat, Wadaner, Tq. Paranda, Dist. Osmanabad to challenge the decision given by the Collector, Osmanabad in proceeding no. 16/GB/Desk1/ GraPanNi/Ka1/ KaVi362 dated 03rd June, 2016. The said proceeding was filed under Section 35(3B) of the Maharashtra Village Panchayat Act, 1958 (hereinafter referred to as 'the Act') to challenge the resolution on no confidence passed by Village Panchayat against Up-Sarpanch – Shivaji, Respondent No.3 of the proceeding. 3. The requisition was given on 12th April, 2016 by present petitioners – six members of village panchayat. The village panchayat consists of nine members. On the same day, Tahsildar issued notice of requisition meeting and called the meeting on 20th April, 2016. On 19th April, 2016 there was official holiday and office was closed due to Mahavir Jayanti. The Up-sarpanch attended the meeting and participated in the discussion on motion of no confidence. When the resolution was moved by the petitioners, one member requested for taking voting by secret ballot and so Tahsildar took voting by secret ballot. The resolution was passed of no confidence against Up-sarpanch by majority of six versus one. Accordingly, the decision of resolution was declared by Tahsildar and two votes were declared as invalid. Minutes of this meeting were prepared and they were signed by to all the nine members of village panchayat. 4. The Upsarpanch had challenged the aforesaid resolution on the following grounds: (I) Notice of meeting issued by Tahsildar was not served on him and false record of service was created of passing the notice on outer door of his house. (II) There was no discussion made on the grounds mentioned in the requisition. (III) Three members did not use proper symbol – i.e. sign for voting but their votes were counted in support of resolution of no confidence. (IV) The Up-sarpanch was not given his opportunity to have his say on the grounds mentioned in the requisition. 5. The aforesaid proceeding was contested by the present petitioners. The record of meeting was produced before the Additional Collector. The dispute is allowed by learned Additional Collector by giving following reasons: (I) Meeting was not called within seven days from the date of requisition. 5. The aforesaid proceeding was contested by the present petitioners. The record of meeting was produced before the Additional Collector. The dispute is allowed by learned Additional Collector by giving following reasons: (I) Meeting was not called within seven days from the date of requisition. (II) No procedure of voting by secret ballot was mentioned in the minutes of meeting and there is possibility that the symbolic signs like cross and making tick mark were not properly given and adopted while voting. 6. The learned Additional Collector has referred the case reported in 2002(4) Bom.C.R. 425 (Ganesh Raghunath Samel Vs. State of Maharashtra). The Additional Collector has held that the meeting was not called within seven days as per the provisions of Section 35(3) of the Act. The facts of this reported case show that the notice of requisition meeting was given on 20th September, 2001 and the meeting was called on 29th September, 2001. It does not show that there was holiday on seventh day if the days are counted from 20th September, 2001. In view of this circumstance, it was held that the said meeting was illegal and contrary to law. In the present matter, admittedly on the seventh day there was official holiday and office was closed and the meeting was held on eighth day. 7. On the aforesaid point, the learned Counsel for petitioner placed reliance on reported case of 2008(3) Mh.L.J. 781 (Seema Ashok Kamble Vs. The Collector). In this case this Court has laid down that if the day on which meeting is required to be held happens to be holiday or office of village panchayat is required to be kept closed, proceeding can be taken on the following day. While making such observation, this Court has referred the case reported as (2000) 8 SCC 649 (Prasad Vs. Dinanath). In the said case the Apex Court has laid down that in view of principle given in Section 9 of General Clauses Act, 1897 when period is delimited by statute or by rule which is both beginning and end, the word 'from' is used indicating the beginning and so the opening day needs to be excluded. While making such observations this Court referred case of Ganesh Raghunath Samel (supra) and also the case of Division Bench of this Court reported in 2004(4) B.C.R. 592 (Nandkishor Vs. Presiding Officer). While making such observations this Court referred case of Ganesh Raghunath Samel (supra) and also the case of Division Bench of this Court reported in 2004(4) B.C.R. 592 (Nandkishor Vs. Presiding Officer). In the case of Nandkishor, the Division Bench has also taken view that while computing the period given in Section 35(2) of the Act, the day of notice should be excluded. In the case of Pandhari Patil Vs. State of Maharashtra reported in 2002(5) Mh.L.J. 171 also this Court has laid down that if on the seventh day it is holiday, meeting can be taken on the day following such day. Thus, in the present matter the learned Additional Collector has committee error in holding that the meeting was not held within prescribed period of seven days. 8. This Court has carefully gone through the proceeding filed by Upsarpanch before the Additional Collector and the minutes of meeting prepared in respect of the said meeting. There are following circumstances which are relevant: (I) In paragraph no.7 of the dispute application filed by Upsarpanch he had contended with regard to minutes of meeting, that out of nine members six members voted in favour of no confidence motion, two votes were declared invalid and one vote was against the motion of no confidence. (II) In paragraph no.8(c) of the dispute application which is a ground to challenge it is mentioned by Upsarpanch that six members had given requisition against him. (III) In paragraph No.8(f) of the dispute application the Upsarpanch had mentioned that six members voted in support of no confidence motion. The Upsarpanch had however raised grievance that proper symbolic sign was not used. Upsarpanch has not given written objection though he has contended that oral objection was taken. If there was no clear instruction about using of symbolic sign or if the instructions were not correctly followed while voting, then such objection ought to have been taken but such objection was not taken. Further in dispute application also there is no specific contention that instructions were not clear or they were followed correctly in this regard. Thus no objection was taken to the manner of voting by secret ballot and use of symbolic sign before Tahasildar and on the contrary the minutes of meeting were signed by Upsarpanch. Further in dispute application also there is no specific contention that instructions were not clear or they were followed correctly in this regard. Thus no objection was taken to the manner of voting by secret ballot and use of symbolic sign before Tahasildar and on the contrary the minutes of meeting were signed by Upsarpanch. (IV) One vote was against the motion and two votes were treated as invalid by Tahasildar but nobody took objection in respect of invalid or valid votes in the meeting. This circumstance creates probability that other two members whose votes were treated as invalid were also not supporting the Upsarpanch. These members did not file affidavit in support of the aforesaid contention of Upsarpanch before the Additional Collector. On the other hand the six members who had given requisition against Upsarpanch and who voted against Upsarpanch filed say of aforesaid nature to the dispute application and they opposed the dispute application filed by Upsarpanch. (V) In minutes of meeting, it is specifically recorded that the procedure of voting by secrete ballot was explained to all the members and only when they understood the procedure, the voting was taken. The counting of votes was done in presence of all the members and when there was declaration that six members had supported no confidence motion and only one had opposed the motion and remaining two votes were invalid, no objection was taken and this circumstance shows that there was no misunderstanding in the minds of any member with regard to the symbolic sign which was to be used for voting and the instructions given by Tahasildar. 9. The Additional Collector has not considered aforesaid record and the circumstances. When there was no probability that procedure for use of the symbolic sign was not explained and the procedure given by the Tahasildar was not followed, the Additional Collector held that the procedure was not properly followed. So the finding on this point of the learned Additional Collector cannot sustain in law. The Additional Collector is expected to take decision on the basis of record and not on the basis of hypothetical considerations. 10. In the case reported as 1967 Mh.L.J. NOC 36 (Smt. Annapurnabai Ajabarao Vs. Smt. Annapurnabai Anandrao), the Division Bench of this Court has made following observations: “A no-confidence motion was passed against a Sarpanch of a Gram Panchayat. The Additional Collector is expected to take decision on the basis of record and not on the basis of hypothetical considerations. 10. In the case reported as 1967 Mh.L.J. NOC 36 (Smt. Annapurnabai Ajabarao Vs. Smt. Annapurnabai Anandrao), the Division Bench of this Court has made following observations: “A no-confidence motion was passed against a Sarpanch of a Gram Panchayat. The reason for no-confidence motion as stated in the notice was that the administration of Panchayat and distribution of grains was not done according to rules in a manner beneficial to the citizens. At the meeting convened for considering the no-confidence motion an allegation was also made against the Sarpanch that some false bills had been included in the accounts of the Panchayat and the Sarpanch had given her explanation. The motion was passed with requisite majority. The legality of the no-confidence motion was challenged on the grounds inter alia that (I) the allegations with regard to alleged mismanagement were too vague and did not furnish any particulars and the inclusion of false bills was considered in the meeting though not raised in the notice of motion, and (ii) names of persons voting in favour of the resolution and their signatures were not appended to the proceedings. Held, that as the notice related to administration of the Panchayat the inclusion of alleged false bills in the accounts would be a matter falling within the administration of the Panchayat. It could not be said to be a new ground. Held further, that the fact that the signatures of the members were not obtained on the copy of the proceeding transmitted to the Secretary of the Panchayat Samiti would not affect the validity of the decision taken by the meeting.” 11. In view of the observations made by Division Bench of this Court in the case of Annapurnabai (supra) and facts and circumstances of the present matter as quoted, this Court holds that the Additional Collector has committed grave error in allowing the dispute application filed by Upsarpanch. Such decision cannot sustain in law. In the result, petition is allowed. Order made by the learned Additional Collector is hereby set aside. The dispute application is dismissed. Rule is made absolute in these terms.