TATYASAHEB RANCHANDRA KALE Vs. NAVNATH TUKARAM KAKDE

JUDGEMENT

(1.) The issue which at most times is central to a challenge to an order passed confirming the motion of no confidence against the Sarpanch/UpaSarpanch has been referred to a larger bench of this Court by the Division Bench of this Court ((A.S.Oka & S.C. Gupte, JJ) vide its order dated 24th January 2014. The Division Bench has crystallized the said issue as under :

(2.) In the said case the Minutes recorded by the Tahsildar in the Special Meeting held under Section 35 the BVP Act") showed no resolution of no confidence was moved or seconded by any of the members of the Panchayat. The said Minutes further showed that in the meeting held by the Tahsildar the members who were present had participated in the discussion on the motion and after the persons, who were desirous of being heard, were heard, that the motion of no confidence came to be passed. The Division Bench framed two points that arose for its consideration which are as follows :

(3.) It would now be necessary to see the factual matrix in the present case i.e. LPA No.312 of 2013. In the present case the elections to the village Panchayat Theur, Tal. Haveli, Dist. Pune were held in the year 2010. The Appellant was elected as a Sarpanch of the said Gram Panchayat which has 17 members. The Respondent No.7 along with 6 others moved a motion of no confidence against the Appellant by giving a notice under Section 35 of the BVP Act to the Tahsildar calling upon the Tahsildar to requisite a meeting to consider the majority for the said purpose. The Tahsildar it seems disposed of the said notice on the ground that it was not tendered in prescribed form. Thereafter another notice was submitted to the Tahsildar by the Respondent Nos.1 to 13. The Tahsildar convened a special meeting of the Panchayat on 12/3/2012 for considering the motion of no confidence. The meeting was attended by all 17 members of the Panchayat. The motion of no confidence was passed by 13 members who voted in favour of the motion of no confidence by raising their hands. After the said motion was passed, the Appellant challenged the decision by filing a Dispute under Section 35(3B) of the BVP Act before the Additional Collector. The Dispute Application was dismissed by the Additional Collector. Aggrieved by the said decision, the Appellant had preferred an Appeal before the Divisional Commissioner, Pune. The said Appeal was also rejected. The said orders passed by the Additional Collector and the Divisional Commissioner, Pune were impugned by the Appellant by filing a Petition being Writ Petition No.6967 of 2012. In the said Petition, the challenge which was raised to the resolution passed was on two grounds i.e. violation or contravention of Section 35 (3A) of the BVP Act and, noncompliance of Rule 17 of the Meeting Rules in the matter of motion not being proposed and seconded. In so far as the first contention is concerned, the learned Single Judge of this Court who heard the said Petition rejected the said contention. In so far as the second ground is concerned, viz. that the motion was not proposed and seconded and was put directly to the vote, the learned Single Judge, in view of the divergence of views of the learned Single Judges of this Court on the aspect as to whether Rules were mandatory or directory, and in view of the fact that the issue was referred to the larger bench by a learned Single Judge of this Court, was of the opinion that the matter was required to be considered, and therefore, granted Rule. In so far as the interim reliefs were concerned, the learned Single Judge held that in view of the deeming fiction attached to Section 35 (3D) of the BVP Act after the rejection of the Appeal filed by the Appellant before the Commissioner, the post of Sarpanch was fallen vacant and therefore the learned Single Judge refused to grant interim reliefs. That part of the order refusing the interim reliefs was challenged by way of the above LPA which had come up before a Division Bench of this Court comprising of A.S. Oka & S C Gupte, JJ. Before the Division Bench strong reliance was placed on the judgment of another Division Bench (A. M. Khanwilkar and K. K. Tated, JJ) in Vishnu Ramchandra Patil's case. The Division Bench of A.S Oka & S.C.Gupte, JJ considered the relevant statutory provisions i.e. the BVP Act, Meeting Rules, Motion of No Confidence Rules as also conspectus of Case Laws cited before them and observed that it was not possible for them to agree with the interpretation of Rule 17 as propounded by the Division Bench in Vishnu Ramchandra Patil's case. In the context of the present reference the relevant Paragraphs of the order of reference are Paragraphs 20, 23, 24 and 25 which for the sake of ready reference are reproduced herein under :"