Writ Petition No.3934 of 2001

4th October, 2002

Petitioner Counsel: Mr. C. G. GAVNEKAR, Mr. V. S. KHANAVKAR , Ms. DEEPA SAWANT
Respondent Counsel: Mr. K. K. JADHAV, Mr. SHARAD BANAVADIKAR, Mr. R. V. MORE

Cases Cited:
Raza Buland Sugar Co. Ltd., Rampur Vs. The Municipal Board, Rampur, AIR 1965 SC 895 [Para 20]

JUDGMENT

H. L. GOKHALE, J.:- This Writ Petition, under Article 226 of the Constitution of India, is filed by a woman Sarpanch (who is the 1st Petitioner herein) and two members of Village Panchayat (i.e. Petitioners Nos.2 and 3 in this Petition). This Petition raises two questions concerning the interpretation of Section 145(1)(A) of the Bombay Village Panchayats Act, 1958 (for short, "the said Act") and they are as follows :-

(i) Whether it is mandatory to dissolve a Village Panchayat under the provision of Section 145(1)(A) of the said Act, if more than half the total number of seats in a Panchayat become vacant ?

(ii) Is it not necessary to provide a hearing to the members of the Village Panchayat before a decision to dissolve the Panchayat is arrived at ?

2. Before we deal with these two questions, it is necessary to look into the background to this controversy. Part IX was introduced in the Constitution of India by the Constitution (Seventy-third) Amendment Act, 1992 with effect from 24th April 1993. That was with a view to provide a constitutional status and protection to the village level panchayat. As per Article 243-D(3) from this Part IX, not less not one-third of the total number of seats to be filled by direct election in every panchayat were to be reserved for women. The second proviso to Article 243-D(4) provided that not less than one-third of the total number of offices of the Chairpersons in the Panchayats at each level shall be reserved for women. The relevant provisions of Article 243-D providing for reservation of seats on various counts and for women read as follows :-

"243-D. Reservation of seats-(1) Seats shall be reserved for -

(a) the Scheduled Castes; and

(b) the Scheduled Tribes,

in every Panchayat and the number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election in that Panchayat as the population of the Scheduled Castes in that Panchayat area or of the Scheduled Tribes in that Panchayat area bears to the total population of that area and such seats may be allotted by rotation to different constituencies in a Panchayat.

(2) Not less than one-third of the total number of seats reserved under clause (1) shall be reserved for women belonging to the Scheduled Castes or, as the case may be, the Scheduled Tribes.

(3) Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Panchayat shall be reserved for women and such seats may be allotted by rotation to different constituencies in a Panchayat.

(4) The offices of the Chairpersons in the Panchayats at the village or any other level shall be reserved for the Scheduled Castes, the Scheduled Tribes and women in such manner as the Legislative of a State may, by law, provide :

Provided that the number of offices of Chairpersons reserved for the Scheduled Castes and the Scheduled Tribes in the Panchayats at each level in any State shall bear, as nearly as may be, the same proportion to the total number of such offices in the Panchayats at each level as the population of the Scheduled Castes in the State or of the Scheduled Tribes in the State bears to the total population of the State :

Provided further that no less than one-third of the total number of offices of Chairpersons in the Panchayat at each level shall be reserved for women :

Provided also that the number of offices reserved under this clause shall be allotted by rotation to different Panchayats at each level.

(5) The reservation of seats under clauses (1) and (2) and the reservation of office of Chairpersons (other than the reservation for women) under clause (4) shall cease to have effect on the expiration of the period specified in Article 334.

(6) Nothing in this Part shall prevent the Legislature of a State from making any provision for reservation of seats in any Panchayat or offices of Chairpersons in the Panchayats at any level in favour of backward class of citizens."

3. As noted above, sub-Article (4) of Article 243-D lays down that as far as the reservation of the offices of Chairpersons was concerned, that was to be provided in such manner as the Legislature of a State may, by law, provide. As far as the State of Maharashtra is concerned, the Bombay Village Panchayats Act, 1958 is an Act in vogue governing the constitution of the Panchayat at the village level. This Act was amended subsequent to the amendment of the Constitution of India. Sub-section (d) was added in Section 10(2) in this Act to provide that one-third of the total number of seats to be filled in by direct election in a Panchayat shall be reserved for women and such seats shall be allotted by rotation to different wards in a Panchayat. Similarly, sub-section (c) was added in Section 30(4) to provide that one-third of the total number of offices of Sarpanch in the Panchayat shall be reserved for women. Sub-section (d) of Section 10(2) of the Bombay Village Panchayats Act, 1958 reads as follows:-

" (d) one-third (including the number of seats reserved for women belonging to the Scheduled Castes, the Scheduled Tribes and the category of Backward Class of citizens) of the total number of seats to be filled in by direct election in a panchayat shall be reserved for women and such seats shall be allotted by rotation to different wards in a panchayat.

The relevant portion of sub-section (4)(c) of Section 30 of the Bombay Village Panchayats Act, 1958 reads as follows :-

" (4) There shall be reservation in the offices of the Sarpanchas in the panchayats for the members belonging to the Scheduled Castes, the Scheduled Tribes, the category of Backward class of citizens and Women as follows :-

(a) .................

(b) .................

(c) One-third of total number of offices of Sarpanchas (including the number of offices reserved for women belonging to the Scheduled Castes, the Scheduled Tribes and the category of Backward Class of citizens) in the panchayats shall be reserved for women.

4. The Petitioners belong to village Ambarle situated in Taluka Mangaon of District Raigad. This village has a village panchayat of seven members. The last election to this village panchayat was held in June 1998 and Petitioner No.1 became the woman Sarpanch of this village in September 1998. The term for elected members of the Panchayat as also Sarpanchas was 5 years. For more than half period of this term, there was no problem. However, on 24th April 2001, a No Confidence Motion was sought to be moved against the 1st Petitioner and it was defeated. The relevant rule for passing a No Confidence Motion requires a two-third majority for the motion to be passed. In the village panchayat with seven members, it was necessary to obtain five votes in support of this motion. However, only four members voted in support thereof, whereas three voted against and that is how the motion got defeated.

5. It appears that these four members subsequently decided to resign from the membership of the Panchayat. Therefore, they convened a meeting on 2nd May 2001 and they resigned. In the Minutes of the Village Panchayat, it was recorded that they have so resigned. The 1st Petitioner was not present when the meeting was held but the Minutes were so drawn by the Gram Sevak, who is the principal officer of the village and there is no dispute on this fact that four members did resign and their resignation was recorded in that meeting.

6. It appears that consequent upon the resignation of these four members, a report was made by the Block Development Officer to the Chief Executive Officer of the Zilla Parishad and thereafter papers with his report were forwarded to the Konkan Divisional Revenue Commissioner. The Commissioner invoked the power of the Government under Section 145(1)(A) of the said Act and proceeded to dissolve the Village Panchayat. The Notification/order dissolving the Village Panchayat of Ambarle dated 7th August 2001 was published in the Government Gazette dated 16th August 2001. It is this order of the State Government under Section 145(1)(A) which has led to the present Petition.

7. Section 145(1)(A) of the Bombay Village Panchayats Act, 1958 reads as follows :-

"If more than half the total number of seats in a Panchayat have become vacant, the State Government may, by order in the official Gazette, dissolve such Panchayat."

8. The disputed order of the State Government dated 7th August 2001 when translated from Marathi original into English reads as follows :-

“ From : The Commissioner, Konkan Division O R D E R The Bombay Village Panchayat Act, 1958.        No. Development/Office 3/Village        Panchayat/Dissolution/Ambarle        (Taluka Mangaon).        The Chief Executive Officer of the Zilla Parishad, District Raigad has, by his letter dated 21st June 2001, forwarded a proposal to dissolve the Village Panchayat of Village “Ambarle” from Taluka Mangaon, District Raigad in view of the resignation of 4 members out of 7 members thereof.        Since 4 members out of 7 members have resigned, more than half the seats in the Village Panchayat “Ambarle” have fallen vacant.        Hence, by exercising the powers under Section 145(1)(A) of the Bombay Village Panchayats Act, 1958 read with Government decision dated 1st June 1983 and the Government Circular dated 12th July 1996, I hereby exercise the powers regarding dissolution of the Village Panchayat and accordingly, I, the Commissioner of Konkan Division, by this order, hereby dissolve the Village Panchayat “Ambarle” (Taluka Mangaon), District Raigad.        Order dissolving the Gram Panchayat will come into force from the date this order is published in the Maharashtra Government Gazette. D. N. Vaidya, Commissioner, Konkan Division. Navi Mumbai, Date : 7th August 2001.”

9. A copy of the order passed by Respondent No.1-Commissioner, Konkan Division was also tendered by Mr. Gavnekar, learned Counsel for the Petitioners. The order published in the gazette referred to earlier is identical to this order. Mr. Gavnekar submitted that the Petitioners had no knowledge or any access to the report made by the Chief Executive Officer of the Zilla Parishad or the order passed by the Commissioner. They had no notice of any such proceedings nor were they heard. The Petitioners came to know about dissolution of the Village Panchayat only through the Gazette Notification which is challenged in the present Petition. We have perused the order passed by the Commissioner. Its contents are almost identical to the gazette order. When one reads the order passed by the Commissioner, it becomes clear that no notice of that proceeding was given to the Petitioners and since the majority of the seats has fallen vacant, according to the Commissioner, the order of dissolution of the Village Panchayat had to follow automatically.

10. It is contended in the Petition and Mr. Gavnekar, learned Counsel appearing for the Petitioners, submitted that the facts as narrated above indicated that for more than half the period of the term the 1st Petitioner was functioning as the Sarpanch without any complaints. It is thereafter contended that a No Confidence Motion was sought to be moved against her in April 2001 but the same did not get the requisite majority and was defeated. Immediately thereupon, the members in opposition of the 1st Petitioner resigned in May 2001. Thereafter, it appears that a proposal to dissolve the Village Panchayat has been forwarded and the above order has come to be passed on 7th August 2001. The order itself indicates that no hearing was afforded either to the 1st Petitioner or to the other members of the Village Panchayat who had not resigned therefrom.

11. The Petition was opposed by filing two Replies. One was filed by the Additional Collector of Raigad and another by the Assistant Commissioner (Inspection), Konkan Bhavan from the office of the Commissioner, who has exercised the power on behalf of the State Government under Section 145(1)(A) of the said Act. In the Affidavit in Reply of the Additional Collector, a plea is raised that the Petitioners had an alternate efficacious remedy and that was an Appeal to the Collector under Section 29(3) of the said Act. As far as the Affidavit in Reply from the office of the Commissioner is concerned, it is stated in Para-10 thereof that there was no provision in the said Section 145(1)(A) to call upon a Sarpanch for hearing as contended by the Petitioners. From Para-11 of the said Affidavit in Reply, it appears that the view of the Commissioner appears to be that the moment more than half seats fall vacant, the Commissioner has to arrive at a decision to dissolve the Gram Panchayat. In Para-12 of the said Reply, it is stated that four members out of seven, had mentioned in their resignation that the Sarpanch was having a habit of not taking them into confidence. This paragraph also states that in the proposal sent by the Chief Executive Officer, there was also a mention of the ground of non-performance of the Sarpanch.

12. Mr. Gavnekar, learned Counsel for the Petitioners, submitted that the section, which has been invoked by the Commissioner, on the face of it, gives a discretion to the State Government to dissolve the Panchayat when more than half of the total number of seats become vacant. He further submitted that the Legislature has advisedly used the language that the State Government may, in such a situation, dissolve such a Panchayat. The section does not state that the Government shall dissolve such a Panchayat. Mr. Gavnekar submitted that the circumstances leading to the present Petition ought to have been considered by the Commissioner before passing the impugned order. He further submitted that for more than half the period of the term the 1st Petitioner had functioned as the Sarpanch without any grievances against her and it is thereafter that the No Confidence Motion was moved against her. After the Motion was defeated, 4 members out of 7 have resigned. This is to see to it that the 1st Petitioner no longer remains the Sarpanch.

13. Mr. Gavnekar submitted that the Seventy-Third Amendment to the Constitution and the consequential amendment to the Bombay Village Panchayats Act, 1950 was brought about to see to it that there is proper representation to women in the Village Panchayat and also in the office of the Sarpanch. If in this manner, the majority is permitted to dictate the terms, the effect will be that the women occupying the position of the Sarpanch will be put into a jeopardy. Mr. Gavnekar submitted that this Section 145(1)(A) ought to be interpreted with a view to advance the remedy and to remove the mischief. That can be done by interpreting this section to mean that it gives a discretion to the State Government and in every such case, the State Government is not bound to dissolve the Village Panchayat. The second submission of Mr. Gavnekar was that dissolving the Village Panchayat was one way out as provided under Section 145(1)(A). The other alternative was to hold a by-election for the seats which have fallen vacant under Section 43 of the said Act. In his submission, in a case like the present one, a proper way was to direct a by-election to the seats wherefrom the members had resigned and not to force a dissolution of the Village Panchayat.

14. Mr. Gavnekar thirdly submitted that when one is elected for a term of five years and there is no fault of the continuing members and yet the Village Panchayat is being dissolved, the least that was expected was that the Commissioner ought to have afforded a hearing to the members who wanted the Village Panchayat to continue. He drew our attention to the provision of Section 313 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 in this behalf, whereunder there is a specific proviso to sub-section (2) which provides that where more than half the number of seats in the Council become vacant, before dissolving the Council, a reasonable opportunity of being heard shall be given to such Council. Section 313(2) with its proviso reads as follows :-

"313. Power to dissolve a Council.- (2) if more than half the total number of seats in a Council have become vacant the State Government may, by order in the Official Gazette, dissolve such Council :

Provided that, before dissolving any such Council, a reasonable opportunity of being heard shall be given to such Council."

As far as the present section is concerned, here also a similar provision ought to be read and hence hearing ought to have been provided before the Village Panchayat was dissolved.

15. Mr. Jadhav, learned Assistant Government Pleader appearing for the State Government, advanced principally two submissions. Firstly, he submitted that since this was a matter concerning a resignation, if any member was aggrieved thereby he had a remedy to prefer an Appeal to the Collector under Section 29(3) of the said Act and if one was aggrieved by the decision of the Collector, an Appeal was available to the Commissioner under Section 29(4) of the said Act. The second submission of Mr. Jadhav was that under this Section 145(A)(1), as it is worded, when majority of the seats falls vacant, the Village Panchayat will have to be dissolved. It is no use to continue the Village Panchayat when election is required to be directed for majority of the seats. If the election is to be directed for majority of the seats, it is better that the entire Village goes for re-election.

16. Mr. Banavadikar has appeared for Respondent No.4-State Election Commission and he states that State Election Commission submits to the orders of the Court.

17. Having heard all the Counsel, we are of the view that as far as the first submission of Mr. Jadhav is concerned, the wording of Section 29 does not cover the kind of situation which has emerged in the present matter. Section 29 provides for the resignation of a member and the dispute regarding his or her resignation. Section 29 speaks of a situation where a member or Sarpanch, whose resignation is placed before the meeting, wants to dispute the genuineness of the resignation. In that case, he or she has a remedy under Section 29(3) of referring the dispute to the Collector and then an Appeal to the Commissioner under Section 29(4). In the present case, nobody is disputing the resignations of four members and nobody is aggrieved or has raised any dispute with respect to the genuineness of the resignations of these four members. That being so, this remedy under Section 29 was certainly not available to the Petitioners. For ready reference Section 29 reads as follows :-

"Section 29. Resignation of member and disputes regarding resignation.-

(1) Any member who is elected may resign his office by writing under his hand addressed to the Sarpanch and the Sarpanch may resign his office of member by writing under his hand addressed to the Chairman of the Panchayat Samiti. The resignation shall be delivered in the manner prescribed.

(2) On receipt of the resignation under sub-section (1), the Sarpanch or, as the case may be, the Chairman of the Panchayat Samiti shall forward it to the Secretary who shall place it before the meeting of the panchayat next following.

(3) If any member or the Sarpanch whose resignation is placed before the meeting of the panchayat wants to dispute the genuineness of the resignation, he shall refer such dispute to the Collector within seven days from the date on which his resignation is placed before the meeting of the panchayat. On the receipt of dispute, the Collector shall decide it, as far as possible, within fifteen days from the date of its receipt.

(4) The member or Sarpanch aggrieved by the decision of the Collector may, within seven days from the date of receipt of the Collector's decision, appeal to the Commissioner who shall decide it, as far as possible, within fifteen days from the date of the receipt of the appeal.

(5) The decision of the Collector, subject to the decision of the Commissioner in appeal, shall be final.

(6) The resignation shall take effect-

(a) where there is no dispute regarding the genuineness, after the expiry of seven days from the date on which it is placed before the meeting of the panchayat;

(b) where the dispute is referred to the Collector and no appeal is made to the Commissioner, after the expiry of seven days from the date of rejection of the dispute by the Collector;

(c) where an appeal is made to the Commissioner, immediately after the appeal is rejected by the Commissioner."

18. Then, we come to the second submission of Mr. Jadhav that where majority of the seats falls vacant, it is desirable to hold election by dissolving the entire Village Panchayat and that is how this section ought to be read. Now, as seen in the facts of the present case, it is quite possible that such an automatic dissolution can lead to a misuse of this power as contended by Mr. Gavnekar. There is an allegation of the Sarpanch not taking some of the members into confidence and also that of her alleged non-performance as pointed out above. Now, if that is the allegation, surely, the Sarpanch ought to have an opportunity to meet that allegation. Besides, the purpose of introducing the relevant provisions in the Constitution as also in the Village Panchayat Act by the Seventy-Third Amendment was to provide adequate representation to women in the Village Panchayat and also in the offices of Sarpanch. That purpose could easily be defeated by resignations of the majority of members, the moment the post of Sarpanch of a particular village is allotted to a woman and the woman sarpanch does not accept the dictates of the others. These are the factors which the Commissioner ought to consider when a report is made to him that majority of the seats has fallen vacant on account of resignation of the majority members. As submitted by Mr. Gavnekar, the other alternative of holding by-election to the remaining seats is certainly available. Besides, the members who want to continue and who have been elected for a period of five years should at-least be provided a hearing before the decision of dissolution is arrived at. One will have to read the provision of such a hearing under this particular Section 145(1)(A) which provides for dissolution of the Village Panchayat. This is because the members are elected for a period of five years. They have a reasonable expectation to continue for this full period of five years. Hence, when their term is being curtailed, the least that is expected is that they ought to be heard where they could point out as to why in the particular village by-election was the proper remedy and not the dissolution of the panchayat.

19. While observing as above, we would like to clarify at the same time that when we are making the above observations for a moment, we are not saying that in the facts of the present case, it is necessary to hold by-election or that it is necessary to dissolve the Village Panchayat. That is a decision which the Commissioner will have to arrive at after affording a hearing to the members of the Village Panchayat including the Petitioners who are opposed to the dissolution of the Village Panchayat. We also quite see a force in the submission of Mr. Jadhav that normally when majority of the seats falls vacant, it is better to go for dissolution of the panchayat and to hold re-election for the entire village. However, there can be a number of exceptions to this general provision as is made in the particular Section 145(1)(A) and the present Petition, prima facie, provides for an exceptional case where a hearing ought to be provided to the Petitioners and thereafter the Commissioner ought to arrive at a decision as to whether the Village Panchayat ought to be dissolved or that there ought to be a by-election for the remaining seats. As noted earlier, it becomes necessary particularly when a No Confidence Motion had been moved against the 1st Petitioner and it was defeated for failure to obtain the requisite majority.

20. As far as the wording of Section 145(1)(A) is concerned, as noted above, this Section provides that the State Government may dissolve the Panchayat when more than half number of seats fall vacant. As far as this wording and the use of word may is concerned, there are a number of decisions where it has been held by the Apex Court that depending upon the provision of the particular Statute and the general inconvenience or injustice to the persons resulting from reading of the particular provision one way or the other, we will have to decide as to whether the provision ought to be read as a directory or mandatory one. The Apex Court in the case of Raza Buland Sugar Co. Ltd., Rampur Vs. The Municipal Board, Rampur reported in AIR 1965 SC 895 held as follows :

"The question whether a particular provision of a statute which on the face of it appears mandatory inasmuch as it uses the word "shall" or is merely directory cannot be resolved by laying down any general rule and depends upon the facts of each case and for that purpose the object of the statute in making the provision is the determining factor. The purpose for which the provision has been made and its nature, the intention of the legislature in making the provisions, the serious general inconvenience or injustice to persons resulting from whether the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject and other considerations which may arise on the facts of a particular case including the language of the provision, have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory."

21. In the circumstances, we answer the two questions raised at the beginning of the judgment as follows :-

(i) The provision of Section 145(1)(A) of the Bombay Village Panchayats Act, 1958 will have to be read not as a mandatory but a directory one containing a discretion with the State Government. It is not that when the majority of the seats falls vacant that the Government can straightway dissolve a Panchayat.

(ii) It is just and necessary that when at any time such a decision to dissolve a Panchayat is to be arrived at, the members of the Village Panchayat ought to be heard. We read such a provision for a hearing in Section 145(1)(A) of the said Act.

22. Hence, we pass the following order :-

(a) We allow this Petition and set aside the order dated 7th August 2001 passed by Respondent No.1-Commissioner, Konkan Division, incorporated in the Government Gazette of 16th August 2001 dissolving the Village Panchayat of Ambarle, Taluka Mangaon, District Raigad. Consequently the village panchayat shall stand revived.

(b) Respondent No.1-Commissioner, Konkan Division will issue notices to the three Petitioners and will hear them on the report of the Chief Executive Officer of Zilla Parishad recommending to dissolve the Village Panchayat. Before affording the hearing to the Petitioners, Respondent No.1 will make them available a copy of the report and permit them to furnish their representation, if any. Thereafter on hearing the Petitioners, Respondent No.1 may pass appropriate orders either to dissolve the Village Panchayat or to resort to the other alternative of directing by-election for the seats which have fallen vacant.

23. On a query from the Court, Mr. Jadhav informs that the Commissioner will need a period of three months to complete the revived proceedings. Mr. Gavnekar appearing for the Petitioners points out that the election was held in June 1988 and the term of the Village Panchayat will expire in June 2003 i.e. within eight months hereafter. He, therefore, submits that it is just and necessary that since the order of the Commissioner is being set aside, the Village Panchayat ought to be restored and the Administrator functioning in the meanwhile ought to be directed to hand over the charge. Considering that a period of eight months is still available and the democratic institution at the grassroot level cannot be made non-functional by a technical approach, we direct the Administrator to hand over the charge of the Village Panchayat to the 1st Petitioner from whom the charge was taken by him.

24. Mr. Gavnekar prays for costs of the Petition. However, we are of the view that the provision of Section 145(1)(A) of the Bombay Village Panchayats Act, 1958 required to be interpreted and, therefore, we are not awarding any costs.

25. All parties will act on an authenticated copy of this judgment.

Petition allowed.