Writ Petition No.10457 of 2009

6th May, 2010

Petitioner Counsel: Mr. C. G. GAVNEKAR
Respondent Counsel: Mr. M. M. SATHYE,Mr. SUHAS DEOKAR,Mr. R. M. PATNE

Cases Cited:
Kishore Phalat Vs. Vilas Mahajan, 1997(3) Mh.L.J. 27 [Para 10]
Govind Nivrutti Hipparkar Vs. Tahasildar, Taluka Sangola, W.P. No.9819/2009, Dt.:-18-1-2010 [Para 18]
Mr. Nivrutti Kashinath Bansode Vs. Gram Sevak, Grampanchayat, Nazara, W.P. No.6873/2008, Dt.:-24-10-2008 [Para 19]
Ashok Krishnakant Mehta Vs. State of Maharashtra, 2004(4) Mh.L.J. 197 20
Durgadas Ukhaji More Vs. Additional Commissioner, Nashik Division, Nashik, 2003(1) Mh.L.J. 420 [Para 24]
Smt. Yamunabai Laxman Chavan Vs. Smt. Sarubai Tukaram Jadhav, 2004(3) ALL MR 93 [Para 25]
Govind Vs. Tahsildar, W.P. No.9819/2009, Dt.:-18-1-2010 [Para 26]
Nivrutti Vs. Gram Sevak, W.P. No.6873/2008, Dt.:-24-10-2008 [Para 26]
Mandabai Balnath Rohom Vs. Ashok Fakira Chandar, 2002 Mh.L.J. 916 [Para 30]
Chaitram Dagadoo Vs. Malegaon, Panchayat Samity, 1965 Mh.L.J. 663 [Para 30]
Dayandev Mohiniraj Nipunage Vs. State of Maharashtra, 2000(2) ALL MR 371=2000(2) BCR 849 [Para 33]
Nimba Rajaram Mali Vs. Collector, Jalgaon, 1998(4) ALL MR 479=1999(1) Bom.C.R. 546 [Para 40]

JUDGMENT

JUDGMENT :- Rule. By consent rule made returnable forthwith.

This petition is directed against the order passed by the Collector Raigad on 4th November, 2009 and maintained upon appeal by the Additional Commissioner, Konkan Division, by judgment dated 1st December, 2009.

2. Facts which are material for deciding this petition and about which there can be no dispute are as under -

On 16th March, 2008 elections were held at village Pali, taluka Sudhagad for electing members of the Gram Panchayat. The petitioner was one of the members elected at those elections. On 30th June, 2008 the petitioner was elected as Sarpanch at the first meeting of the Gram Panchayat. On 28th August, 2009 respondent Nos.2 to 13, 15 and 16 served notice under section 35 of the Bombay Village Panchayat Act (hereinafter referred to as the "Act") and the Sarpanch and Upa-sarpanch No Confidence Rules, 1975 (hereinafter referred to as the "Rules"). Pursuant to the said notice, on 28th August, 2009 the Tahsildar, Pali Sudhagad convened a meeting of the Gram Panchayat on 2nd September, 2009. This meeting was accordingly held on 2nd September, 2009 and was presided over by the Tahsildar Pali. At that meeting, a 'no confidence motion' was passed against the petitioner by two-third majority. At that meeting 4 members of the Gram Panchayat were absent. Out of the remaining 12 members, 11 voted in favour of the resolution. The petitioner was the lone voter against motion of no confidence. The Tahsildar found that the motion was carried by a majority of 2/3rds of the members entitled to sit and vote at the meeting, and therefore, declared that the resolution was passed.

3. Aggrieved thereby, the petitioner raised a dispute under sub-section [3(b)] of section 35 of the Act. Among other things, he submitted that none of the members present at the meeting had moved the motion of no confidence nor was it seconded by any member present. He pointed out that though no such resolution was moved, the Tahsildar put it to vote even before any discussion could take place on the resolution. Therefore, according to the petitioner, the resolution allegedly passed in the meeting held on 2nd September, 2009 was not legal.

4. Respondent No.17 the Tahsildar, who had presided over the meeting submitted a reply before the Collector, and so did the members of the Gram Panchayat, who had voted in favour of the resolution. They stated that the resolution was properly passed and therefore the Tahsildar had rightly so declared. After considering the rival contentions, the Collector held that the dispute raised by the petitioner did not disclose any deficiency in the proceedings at the meeting held on 2nd September, 2009. He held that the resolution was properly moved and passed at the meeting.

5. The petitioner's appeal before the Additional Commissioner, Konkan Division came to be likewise dismissed by judgment dated 1st December, 2009, which has been impugned in this petition.

6. In pursuance of notice issued on 14th December, 2009 respondent No.17 Tahsildar Pali has filed an affidavit-in-reply reporting that the proceedings at meeting held on 2nd September, 2009 were proper and no confidence motion was properly passed.

7. Members of the Gram Panchayat who had voted against the resolution, respondent Nos.2, 3, 5 to 10 & 12, 14 & 15 (hereinafter referred to as the contesting respondents) also filed their affidavits stating that the resolution of 'no-confidence' was rightly passed and that the petitioner had no right to continue to act as Sarpanch.

8. I have heard the learned counsel for the petitioner, contesting respondents as well as the learned AGP. The learned counsel for the parties painstakingly took me through relevant provisions of the law, and also the judicial pronouncements which have a bearing on the question.

9. The learned counsel for the petitioner submitted that the proceedings of meeting held on 2nd September, 2009, annexed to the petition at Exhibit "B" show that the proceedings commenced at 11 a.m. Four members were absent and therefore, it was decided to wait for about 15 minutes. But since they did not report, the proceedings began on 11.15 a.m.. The members present were informed of the draft of 'no confidence motion'. There was only one allegation against the petitioner namely, high handed or arbitrary conduct of business. The proceedings then recount that after acquainting the members about the draft of motion of no confidence, the motion was put to vote. Eleven members are recorded to have voted in favour of the resolution. The petitioner voted against the resolution. Copy of the proceedings book shows that signatures of the members who voted in favour and against had been taken in the proceeding book. It is further recorded in the proceeding book that the Presiding Officer gave an opportunity to the petitioner to put forth his contentions. The proceedings then records what the petitioner submitted. It then again recounts that 11 members voted in favour of the resolution and one member voted against it and thus, the resolution was passed by 2/3rds of majority. The proceeding was then read over to all the members and their signatures were obtained on the proceeding book. Then proceedings are signed by the Tahsildar as well as Village Development Officer.

10. The learned counsel for the petitioner relied upon a judgment of this Court in the case of - Kishore Phalat Vs. Vilas Mahajan [1997(3) Mh.L.J. 27] where the Court was considering the question as to how votes on a no confidence motion should be recorded. Since there is no dispute about votes recorded this judgment will be unhelpful in resolving the issue.

11. The learned counsel for the petitioner submitted that if the proceedings are correctly recorded, which has to be presumed, the motion of no-confidence was neither moved nor was it seconded by any member. He further pointed out that voting was taken and then the petitioner was given a chance to defend himself. Therefore, according to him, the meeting was conducted in flagrant violation of the procedure, prescribed under the Act and the Rules. Therefore, the Collector and also the Commissioner should have held that 'no confidence motion' was not passed.

12. The learned counsel for the contesting respondents submitted that the proceedings of meeting dated 2nd September, 2009 ought to be read in a manner consistent with the presumption that official acts would be performed properly. He pointed out that the proceedings also recount that after the petitioner was heard, out of the members present, eleven had voted in favour of the resolution. Therefore, according to him, it is possible to interpret the proceedings in a manner which would ensure that the wishes of majority are respected.

13. As rightly pointed out by the learned counsel for the petitioner, such a course is not at all open. First, it is nobody's case that no confidence motion was put to vote again for a second time after the petitioner was heard. Secondly, the penultimate paragraph in the proceedings to which learned counsel for contesting respondents makes a reference does not show that voting was taken again, but only recounts what had already happened. It will not be open to read what is not there in the proceedings. The presumption about official acts may rather imply that the Tahsildar recorded the proceedings truthfully as they took place.

It is thus, clear from the proceedings recorded that -

(i) the motion had not been moved or seconded as required by Rule 17 of the Bombay Village Panchayat Meeting Rules (hereinafter referred to as the "Meeting Rules");

(ii) there was no discussion or debate on the motion as required under Rules 21 to 27 of the Meeting Rules, before it was put to vote under Rule 28.

14. The erudite arguments of the learned counsel as to the consequences flowing from these facts may now be dealt with.

15. The Rules provide that the members of the Gram Panchayat who desires to move a motion of no confidence shall give a notice in prescribed form to the Tahsildar. Such notice is required to be accompanied by 7 additional copies. The Tahsildar is required to send a copy each to Sarpanch and Upa-sarpanch as well as to the Zilla Parishad, Panchayat Samiti, the Collector and the Commissioner. If such a notice is given by not less than 1/3rd of the total members entitled to sit and vote, the Tahsildar is required to convene a special meeting with 7 days. Contesting respondents, who desired to move a motion of no confidence gave requisite notice in prescribed form, and the Tahsildar did convene a meeting within the period of 7 days of receipt of notice as required by rules. Rule 3 of the Rules, require the Tahsildar to communicate to the Zilla Parishad, Panchayat Samiti and the Collector and the Commissioner the name of members who were present at the meeting, the decision taken on the motion, number of votes in favour of and against the motion. These Rules are silent on the manner in which this meeting is to be conducted. The learned counsel for the parties therefore, rightly submitted that the Meeting Rules, 1959, would apply to such meetings.

16. The only distinction in general and special meeting in the Meeting Rules is that while 3 clear days' notice is required for an ordinary meeting, a special meeting can be convened after giving at least 1 clear day's notice. As far as procedure to be followed at these meetings, there is no distinction.

17. Rules 17 to 26 provide the procedure for considering motions at meetings. A member who has given notice of a motion can either state that he does not wish to move the motion, or may move the motion. Once a motion is moved and seconded, it is not allowed to be withdrawn. The members are then permitted to speak on the motion. The mover of the motion or the secondor can reply at the conclusion of the debate, and on conclusion of the debate on the motion, when the presiding officer is satisfied that the motion has been sufficiently discussed, he may put the motion to vote. Thus, these Rules require that the motion is to be first moved and seconded, followed by discussion thereon, at the conclusion whereof, the motion is required to be put to vote.

18. The learned counsel for the petitioner submitted that the proceedings recorded by the Tahsildar show that the motion had been put to vote without there being any discussion thereon. Relying on the judgment of a learned Single Judge of this Court in Govind Nivrutti Hipparkar Vs. Tahasildar, Taluka Sangola & Ors. in Writ Petition No.9819 of 2009, decided on 18th January, 2010, the learned counsel for the petitioner submitted that there has to be a debate on the motion. The Court had held that it was incumbent on the Tahsildar to provoke a debate by affording an opportunity to the person against whom 'no confidence motion' is sought to be moved to make his point by permitting him to speak. The Court concluded that a meeting where the motion and provisions of law are only read out cannot be called a meeting at which the motion was debated. This Court therefore, held that such a motion could not be upheld, upon a challenge being raised. This Court had concluded while allowing the writ petition that the parties may convene another meeting for passing the resolution of no confidence, in accordance with law.

19. In Mr. Nivrutti Kashinath Bansode & Anr. Vs. Gram Sevak, Grampanchayat, Nazara & Ors. in Writ Petition No.6873 of 2008, decided on 24th October, 2008 another learned Single Judge of this Court held that section 35 of the Act mandates that the Sarpanch against whom a resolution of no confidence is to be passed, would be entitled to address the House. The Court also referred to Meeting Rules and observed that these rules clearly provide that a motion can be put to vote only when it proposed and seconded by someone. The Court observed that record of the proceedings did not show that motion was proposed or seconded by someone. Highlighting the need for a free and full debate, the Court concluded that since no opportunity was given to the members to speak at the meeting, the resolution could not be upheld. The Court concluded by observing that it would be open to the Tahsildar to reconvene a fresh meeting with respect to the requisition which was issued to him, if it satisfied the stipulations provided in law. The Court observed that if such a meeting is reconvened, the Tahsildar would ensure that the meeting is conducted by following provisions of law by permitting a debate or discussion at the meeting.

20. The learned Judge referred a judgment in the case of - Ashok Krishnakant Mehta Vs. State of Maharashtra & Ors. [2004(4) Mh.L.J. 197]. In that case a Division Bench of this Court was considering a motion of no confidence passed possibly in the same Pali village. A meeting was convened by the Tahsildar on 17th December, 1999 at which 16 out of 17 members of the Gram Panchayat were present. While the person against whom no confidence motion was moved was permitted to speak, other members, who sought to speak at the meeting, were denied permission by the Tahsildar. Six members left the meeting in protest against the decision of the Tahsildar not to allow them to speak at the meeting. The Division Bench considered the main issue as to whether a resolution of no confidence passed at a meeting in course of which, members constituting to Village Panchayat were not permitted to speak, would be invalid. After considering the relevant provisions of the Act and Rules, the Court observed that every member of a representative body has a vital interest in the business which is transacted before that Body and that the right of a particular member, who is sought to be proceeded against on account of specific misconduct, cannot be equated or confused with the general right of all the members to discuss and debate. The Court found that the weight of numbers is not an answer to the fundamental defect such as the one where debate was stifled and the court could not countenance a suppression of right to speak by a supposed justification on the basis of the numbers who cast their lot in support of a resolution.

21. Though in today's political scenario neither content of a speech, nor the forcefulness with which it is delivered, may have any bearing, on voting in a political body & such speeches may have been reduced to ritualistic empty formation, legally, it has to be presumed that elected representatives too make decisions after hearing all sides. Therefore, unless all concerned are heard at such a meeting, the local self governing body cannot jump to the voting stage. The petitioner may not be a Mark Antony who by his legendary speech turned the tide after Julius Caesar was killed, but he could not have been denied the opportunity of being one, making an attempt to refute the charges and appeal to the conscience of those who were to vote him out. This right is recognized not only by the judgments which the learned counsel for the petitioner referred to but also in the Meeting Rules. Failure to follow this requirement would vitiate the resolution.

22. Therefore, principally because the petitioner was not heard before the resolution was put to vote and also because the salutary procedure prescribed in Rules 17 to 26 of Meeting Rules was not followed, the Resolution could not have been saved. The Collector and the Commissioner should have so held. The impugned orders upholding the resolution would therefore have to be quashed, as also the resolution itself.

23. The learned counsel for the contesting respondents submitted that even if it is held that the resolution was not validly passed because of failure of the Presiding Officer to follow prescribed procedure, and not for any fault on the part of majority of members of Gram Panchayat, the petitioner could not be permitted to occupy the office after losing the support of majority.

24. Relying on the judgment of a learned Single Judge of this Court, in a case of - Durgadas Ukhaji More & Ors. Vs. Additional Commissioner, Nashik Division, Nashik & ors. [2003(1) Mh.L.J. 420], the learned counsel for the contesting respondents submitted that a motion of no confidence could not be set at naught on account of technical lapses and that the requirement of sub-rule (2) of Rule 2 of the No Confidence Motion Rules, was to be considered as a directory and not mandatory. The learned counsel further submitted that lapses on the part of Tahsildar cannot result in finding fault with the members who moved the motion of no confidence.

25. Relying on the judgment in Smt. Yamunabai Laxman Chavan & Ors. Vs. Smt. Sarubai Tukaram Jadhav & Ors. [2004(3) ALL MR 93], the learned counsel for the respondents submitted that this Court may not exercise of its powers under Art.226 or 227 of the Constitution in order to oppress the will of the majority on the ground of technical lapses on the part of the Tahsildar in following the procedure, which may deviate from the chronology in which events were supposed to have taken place, but conforms to the substance of requirements of law. Therefore, according to him, even if the Courts were to come to a conclusion that the Tahsildar had put the resolution to vote first and then allowed the petitioner to speak, that was only a formal defect which would not result in nullifying the will of majority and foist upon them as its Sarpanch a person who had lost majority.

26. The learned counsel for the contesting respondents submitted that even in the judgments on which the learned counsel for the petitioner relied in the case of - (1) Govind Vs. Tahsildar in Writ Petition No.9819 of 2009 decided on 18th January, 2010; and (2) Nivrutti Vs. Gram Sevak in Writ Petition No.6873 of 2008 decided on 24-10-2008, referred in the preceding paragraphs, this Court had specifically permitted the Tahsildar to convene or reconvene the meeting. Therefore, the learned counsel submitted that the proceedings should re-commence at the stage at which deviation or the mis-chief occurred. The members who had assembled on 2nd September, 2009 to vote on the resolution should again assemble at a meeting to be chaired by the Tahsildar and should reconsider the resolution after following procedure, prescribed in Rules 17 to 26 of the Meeting Rules. The learned counsel reiterated that the villagers should not be made to suffer a Sarpanch who had lost majority, only on account of lapse of the Tahsildar.

27. The learned counsel for the petitioner submitted that such a course was not open for four reasons. First, the judgments on which the learned counsel placed reliance do not lay down a ratio that meeting should or must be convened or reconvened, since permissibility of such a course was not discussed in those judgments. Secondly, the requisition by contesting respondents, as also the notice convening the meeting issued by Tahsildar have got exhausted since the meeting was actually held on 2nd September, 2009. Therefore, in face of provisions of Section 35 of the Act, a similar motion cannot be considered till the statutory time limit elapses. Thirdly, the requisition/notice having been exhausted, if members of the Panchayat are asked to assemble again, it would amount to adjourning the meeting held on 2nd September, 2009, which is impermissible. Lastly, the complexion of the Panchayat has undergone a change and now there is a 17th member of the Panchayat, whose vote would have to be considered for deciding the fate of the petitioner.

28. As to the first reason the learned counsel for the petitioner may be only technically right. But the directions to convene/reconvene the meeting given in those judgments are not shown to have been questioned or set aside. In any case the questions as to whether such direction could be given, could always be debated. And, the learned counsel appearing for parties have joined the debate and thrown light on the issue before me. Therefore, it would be imperative to examine the second and third reasons whereby the learned counsel for the petitioner raises legal objection to convene/reconvene the meeting.

29. As rightly submitted by the learned counsel for contesting respondents, there is no question of convening a meeting or treating the directions in judgments as if it is a fresh requisition for holding a meeting. Therefore, the bar for moving a fresh resolution, whether the lapse of statutory time limit, would not apply. Fictionally, the meeting which was held on 2nd September, 2009 would itself re-commence as if the moment was frozen. Viewed thus, the objection based on the proposition that requisition or notice have been exhausted cannot be upheld.

30. The learned counsel for the petitioner submitted that this would amount to holding a meeting beyond the statutory period of 7 days, which would be impermissible. He submitted that in Mandabai Balnath Rohom Vs. Ashok Fakira Chandar [2002 Mh.L.J. 916], a learned Judge of this Court was considering the question as to whether Tahsildar was required to only issue a notice calling meeting within 7 days of the receipt of requisition or he had to actually hold or convene the meeting for considering the no confidence motion within 7 days. The Court held that the Tahsildar was not only required to issue the notice, convening the meeting within 7 days but also to convene within 7 days the meeting to deal with the no confidence motion. While so observing the Court also quoted from a judgment of Full Bench of this Court in the case of - Chaitram Dagadoo Vs. Malegaon, Panchayat Samity & Ors. [1965 Mh.L.J. 663] to the following effect -

"We must not so interpret the provisions of the Act as to defeat the intention of the legislature, that a person who had lost confidence of the members should not continue in office."

31. As rightly pointed out by the learned counsel for the contesting respondents, the question here is not of convening the meeting. It was validly convened within 7 days. Also, in the very same judgment, observations of Full Bench from Chaitram's case have been quoted and though judgment in Chaitram's case may not be applicable, the principle enunciated, that provision of the Act cannot be so interpreted to defeat the legislative intent, that a person who has lost confidence should not be allowed to continue in office, would apply with full force to the facts of the present case.

32. I have carefully considered these contentions. The observations of this Court in Mandabai's case and reference therein to what was held by the Full Bench in Chaitram's case were meant to emphasise that once notice of no confidence motion is given, it takes precedence over every other business and hence has to be deliberated upon within 7 days. Merely issuing a notice within 7 days, convening the meeting, say after a month, would result in allowing a person who had lost confidence to continue in office merely because a meeting was not convened. The judgment therefore clarified that the 7 days limit was not only for issuing a notice, but actually holding a meeting. The petitioner is trying to take advantage of a rule, which was meant to protect, recognise and respect the will of majority to effectively nullify the majority. This is impermissible. Again at the cost of repetition it has to be pointed out that meeting was convened within 7 days. The question is only of transacting further business at the meeting on a later date because of defects in the procedure followed. This could be compared to an adjournment.

33. The question therefore is whether such a meeting could be adjourned. The learned counsel for the petitioner relied on a judgment of the Division Bench of this Court in the case of - Dayandev Mohiniraj Nipunage Vs. State of Maharashtra [2000(2) BCR 849 : (2000(2) ALL MR 371)] where the Court was considering the question of adjournment of a meeting. In that case Tahsildar had convened a meeting for considering a no confidence motion. The Sarpanch sent a latter to Tahsildar stating that she was ill and unable to attend the meeting. The Upa-sarpanch also wrote to the Tahsildar stating that he had to attend a funeral and therefore, it was not possible to attend the meeting. The Tahsildar, however, did not adjourn the meeting and a resolution of no confidence was passed by requisite majority. The Collector and the Commissioner also did not find in favour of the Sarpanch and Up-sarpanch and hence they approached the High Court. The observations of the High Court in paragraphs 12 and 14 of the judgment may be usefully reproduced as under -

"12. No doubt, there is no specific provision under the Bombay Village Panchayat Act, 1958, prohibiting the Tahsildar from adjourning the meeting which is called under sub-section (2) of section 35. However, it has to be noted that it is a special meeting called for the consideration of no confidence motion. Section 35 requires that the members, Sarpanch and Upa-sarpanch be served with the notice regarding no confidence motion and once it is brought to their notice that such a meeting is to be held for consideration of no confidence motion, that is sufficient compliance of the provisions of section 35. It is upto the concerned member or the Sarpanch or the Upa-sarpanch to attend the meeting or not to attend the meeting, to take part in the meeting or not to take part in the meeting, to vote or not to vote. If the Sarpanch or Upa-sarpanch fail to avail the opportunity for any reason, the meeting cannot be considered illegal. It also cannot be held that they were not allowed to exercise right to speak and right to vote at the time of meeting.

14. It also has to be noted that once a meeting of the Gram Panchayat or any other local authority is called, then if there is coram to conduct the business of the meeting, then meeting has to take place. There is no provision under any law applicable to Grampanchayat, Zilla Parishad, Municipal Council, the local authorities, that such a meeting can be adjourned only because a member or two request that the meeting be adjourned. Only on certain specified grounds, the meetings are adjourned. But such meetings are never adjourned on the ground that a member or two not being able to attend the meeting. If that is the position with general meetings of the local bodies, then it must be more strict with respect to special meeting called for consideration of no confidence motion. If the meeting is conveyed to transact the business, then the meeting has to be held and the motion must be put for discussion." (emphasis supplied)

34. The learned counsel for the petitioner submitted that it can be deduced from these observations that a special meeting cannot be adjourned. The learned counsel for the contesting respondents submitted that such a ratio cannot be deduced from these observations and all that the Court held that was that a meeting could not be adjourned only because a member or two request that meeting be adjourned.

35. I have carefully considered the observations of the Division Bench as also the contentions of both the learned counsel. It cannot be said that the ratio of judgment is that such a meeting cannot be adjourned. The ratio is that meeting could not be adjourned on the grounds raised by Sarpanch and Upa-sarpanch in that case. The Division had specifically observed that only on certain grounds meetings could be adjourned. In fact the Meeting Rules do provide for adjourning meetings and the procedure to be followed.

36. Rules 10 and 14 of these Meeting Rules read as under -

"10. If within thirty minutes from the time appointed for a meeting, there be no quorum, the meeting if called upon the requisition of members, shall be dissolved in any other case, the person presiding shall adjourn the meeting to such hour on the following or some other day as he may reasonably fix and a notice of such adjournment shall be placed on the notice-board at the office of the panchayat and the business which would have been brought before the original meeting, had there been a quorum thereat, shall be brought before the adjourned meeting and may be disposed of at such meeting or at any subsequent adjournment thereof whether there be a quorum present or not."

"14. Any meeting may, with the consent of the majority of the members present, be adjourned from time to time. But no business shall be transacted at any adjourned meeting other than that left undisposed of at the meeting from which the adjournment took place. The date, time and place of the adjourned meeting shall be announced at the meeting and no separate notice shall be necessary."

Even in the case at hand, the meeting was effectively adjourned for first fifteen minutes to wait for four members who did not turn up. Thus, there is no bar on adjournments, provided such adjournment is for good reason.

37. This takes me to the fourth objection raised by the learned counsel for the petitioner, namely, change in the complexion of electoral college, due to election of 17th member. Even the learned counsel for contesting respondents referred to this development. Subsequent election of 17th member would be inconsequential since what has to be found out whether on 2nd September, 2009 the date on which meeting was convened, the petitioner had lost confidence of more than 2/3rds of members of the Panchayat entitled to sit and vote. Therefore, only those who were entitled to sit and vote on that date would have to decide the fate of the petitioner.

38. The contentions of the learned counsel for the petitioner that this would deprive the 17th member of exercising his rights has to be rejected, since the relevant date on which the decision was to be made was 2nd September, 2009, when the 17th member was not on the scene. In fact the arguments of the learned counsel for petitioner, that a meeting had to be held within 7 days only and his advocating the cause of the 17th member subsequently elected, amounts to blowing hot & cold in the same breath.

39. The learned counsel for the petitioner submitted that no court could set the clock back or freeze a moment in time and cannot be oblivious to a subsequent development. As rightly pointed out by the learned counsel for contesting respondents, the Courts (and in this case the authorities) essentially decide a lis on the basis of situation as it existed on the date cause of action accrued. They examine the events at that point of time and decide the rights of parties as then existing. The rule of considering subsequent developments, as in the cases under the Rent Act, is an exception, and no case for carving out such an exception is pleaded or made out in the petition. Consequently, even the fourth reason, for not recommencing the proceedings of meeting held on 2nd September, 2009 must be rejected.

40. The learned counsel for the contesting respondents relied upon a judgment of Division Bench in the case of - Nimba Rajaram Mali Vs. Collector, Jalgaon & Ors. [1999(1) Bom.C.R. 546 : (1998(4) ALL MR 479)] wherein the Court held that precise reasons for passing no confidence motion need not be specified in the motion and that the motion could not be vitiated on this ground. In that case the Court found that each and every ground had been discussed by members and thereafter no confidence motion was put to vote and was passed by majority. The Court held that verdict of majority must prevail in democracy.

41. In view of the foregoing, the writ petition is allowed. The impugned judgment and orders passed by the Commissioner and the Collector as also the resolution dated 2nd September, 2009 by respondent No.1 Gram Panchayat is quashed and set aside.

42. Respondent No.17 Tahsildar, Pali Sudhagad is directed to summon the members who were present at the meeting dated 2nd September, 2009 by appropriate notice to consider 'no confidence motion', notice whereof been received by him on 28th August, 2009. Such meeting shall be held on 11th June, 2010 at 11 a.m. (so as to leave sufficient time for the aggrieved parties to question this judgment). The Tahsildar shall follow the procedure in Rules 17 to 27 of the Meeting Rules and then decide the fate of the resolution which may be moved at such meeting. By way of abundant caution, it is clarified that the Tahsildar shall first invite the members who had given notice dated 28th August, 2009 to move and second the resolution. If the resolution is not moved or seconded, there would be no question of any further proceeding. If it is so moved and seconded, the Tahsildar shall proceed to permit discussion at the meeting as per Rules, giving opportunity to all members, including the petitioner to put forth what they would like to say and shall thereafter put the resolution to vote.

Rule is made absolute in the above terms.

Ordered accordingly.