Writ Petition No.5493 of 2008

4th March, 2009

Petitioner Counsel: Shri. P. S. PATIL
Respondent Counsel: Shri. A. D. SONARE,Shri. KASAT

JUDGMENT

JUDGMENT :- Heard Shri. P. S. Patil, Advocate for the petitioner, Shri. Sonare, A.G.P. for Respondent Nos.1 and 2 and Shri. Kasat, Advocate for Respondent Nos.4 to 7. None present for the Respondent No.3, so also for Respondent No.7.

2. Rule. Made returnable forthwith. Heard finally with the consent of the parties.

3. By this petition, the petitioner is challenging the order of the Additional Commissioner, Amravati Division, Amravati dated 11-12-2008 passed in Appeal No.20 BVP Act 35(3)(c)/2008-2009 of Mhaispur, Tahsil Bhatkuli, District : Amravati.

4. It may be stated that the petitioner is a Lady Sarpanch of Gram Panchayat, Mhaispur.

5. On 16-8-2008 a notice of no confidence motion was given by three members of Gram Panchayat. The special meeting for consideration of this no confidence motion was to be held on 22-8-2008. In fact it was so held. At that time four members were present. Out of them, three members voted in favour of no confidence motion. Accordingly no confidence motion was carried. Petitioner challenged the said no confidence motion before the Additional Collector, Amravati, but failed and resolution of the no confidence passed in the special meeting dated 22-8-2008 against the petitioner was confirmed. Petitioner then challenged that order before the Commissioner, Amravati Division, Amravati. Learned Additional Commissioner, Amravati Division, Amravati dismissed the appeal of the petitioner which was under section 35(3)(c) of the Bombay Village Panchayats Act.

6. According to the authorities below; the notices were properly served and the motion of no confidence was carried by 3/4th majority as there were four members in the Gram Panchayat as required by law and three members voted in favour of no confidence motion.

7. Learned Counsel for the petitioner has submitted that respondent No.7 was served with the notice of no confidence motion, though he was treated as disqualified, once notice has been served, his presence was required to be considered for consideration of 3/4 majority of meeting. There were five members in the Gram Panchayat and as motion was carried by only 3 members, the 3/4 majority which was required as per rules was not there and therefore said resolution of no confidence against petitioner Sarpanch would not be legal. He has relied for this contention on page 19 of the petition which is a letter addressed by Tahsildar Bhatkuli to the Collector, Amravati, copy of which is sent to Up-sarpanch i.e. respondent No.7. Therefore, according to him, this notice is a notice of no confidence motion served on respondent No.7 and therefore it has to be viewed that he was legal member of the said Gram Panchayat. As such for moving no confidence motion against the petitioner, they should have 3/4 majority i.e. at least 4 members should have voted in favour of no confidence motion. Therefore, according to him, the orders of the Additional Collector as well as Commissioner, challenged in this petition, are not correct and are not in accordance with law.

8. Learned A.G.P. has contended that there was no evidence to show that the notice no confidence motion served on respondent No.7. In fact he was disqualified at the relevant time and therefore, he was not expected to sit and vote in the proceedings of no confidence motion against the petitioner. According to him, page 19 of the petition does not constitute any notice to the member of the Gram Panchayat calling upon him to attend the proceedings of no confidence motion in the special meeting dated 22-8-2008.

9. According to him, it was mere intimation to the Gram Panchayat though, it was sent to Upa-sarpanch Gram Panchayat. Incidentally respondent No.7 is Upa-sarpanch of the said Gram Panchayat who had incurred disqualification at the relevant time and therefore, he was not entitled to vote in the no confidence motion proceedings.

10. Therefore by no means, page 19 notice can be considered and treated as notice to the respondent No.7 as member of the Gram Panchayat calling upon him to attend the meeting of no confidence motion to be considered against the petitioner.

11. He has also produced the proceedings of the said meeting for the perusal of this court. According to him, petition is liable to be dismissed.

12. Learned counsel for respondent Nos.4 to 6 who are the members of the Gram Panchayat who have voted against the petitioner submitted that the no confidence motion was validly carried against petitioner. According to him, respondent No.7 was not at all served with the notice of no confidence motion, in fact it was not required at all. According to him, as 3/4 majority was required, 4 members of Gram Panchayat were entitled to vote, as three members were already disqualified at the time of the meeting. Meaning thereby they were not entitled to sit and vote in the special meeting called for considering no confidence motion. Therefore, according to him, the petition is devoid of merits and it is liable to be dismissed.

13. It would be thus seen that main plank of the contention of the petitioner is only on page 19 - letter, which is called as notice of no confidence motion by petitioner. On perusal of the alleged notice page 19 it would be seen that this is a letter written by Tahsildar Bhatkuli to the Collector, Amravati. It is dated 16-8-2008. The subject on it indicates "Regarding no confidence motion moved against Sarpanch of Gram Panchayat, Mhaispur, Tahsil Bhatkuli". The contents of that letter show that three members of Gram Panchayat, Mhaispur had given notices of no confidence motion against the present petitioner - Sarpanch on 16-8-2008 in his office. Next part thereof shows that the proceedings of the said no confidence motion i.e. special meeting for consideration of the same was called on 22-8-2008, Friday at 1.00 p.m. at Gram Panchayat Office, Mhaispur. The last paragraph indicates that the copy of the no confidence notice was sent to the Collector for information.

14. It cannot be lost sight of the fact that the petitioner has filed a copy of the notice of the no confidence motion which is at page 15. The tenor of this notice shows that it is a notice of special meeting issued by Tahsildar Bhatkuli and Presiding Officer of the Special Meeting to the of the Gram Panchayat. This notice is particularly to the petitioner. The contents of the said notice reads thus :

"Three members of the Gram Panchayat, Mhaispur have filed notices in this office on 16-8-2008 for convening the meeting for considering no confidence motion against Smt. Nalini Janrao Gaikwad.

As regards the notices received about the no confidence motion, special meeting of all members of Gram Panchayat is scheduled to be held on 2-8-2008 Friday at 1.00 noon at Gram Panchayat Office, Mhaispur.

Copy of the notice for considering no confidence motion is sent herewith for your information." [translation].

Contents of this notice would clearly show that the notice of the special meeting was issued by Tahsildar to individual members of the Gram Panchayat intimating that such special meeting was called and his presence was expected. Such similar notices are produced at pages 16, 17 and 18. These notices are quite distinctly different from page 19 letter. Considering the tenor & contents of the notices which are placed on record issued by Tahsildar to the Members of the Gram Panchayat, there is no doubt in my mind that page 19 was merely a letter written by Tahsildar to the Collector intimating that such special meeting to consider no confidence motion moved by three members of the said Gram Panchayat was called at such and such place and it was merely an intimation by Tahsildar to the Collector. Therefore, page 19 letter by no means can be construed as notice of no confidence motion given to the members of the Gram Panchayat by Tahsildar, in this case by Tahsildar to respondent No.7.

15. In my opinion therefore, the main contention of the petitioners fails. Consequently it has to be held that the special meeting was rightly convened by the Tahsildar. The proceedings were rightly held and there is no infirmity with the resolution of no confidence passed against the petitioner. Orders of the authorities below cannot be said to be illegal. No interference is necessary.

16. As such petition is dismissed. Rule is discharged. Interim order is vacated.

17. As regards the action proposed by the learned A.G.P. for imposing costs on the learned counsel for making incorrect statement, I find the same is not necessary.

Petition dismissed.