2015(1) ALL MR 497 (F.B.)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

M.S. SHAH, R.M. SAVANT AND M.S. SONAK, JJ.

Shri Tatyasaheb Ramchandra Kale Vs. Shri Navnath Tukaram Kakde & Ors

Letters Patent Appeal No.312 of 2013,Writ Petition No.6967 of 2012

9th October, 2014

Petitioner Counsel: Mr. C.G. GAVNEKAR, Mr. ASHUTOSH GAVNEKAR, Mr. SHIVA PATIL
Respondent Counsel: Mr. SHRINIWAS S. PATWARDHAN, Mr. RUTURAJ P. PAWAR, Mr. AJAY D. MAGADUM, Mr. A.B. VAGYANI, Mr. P.G. SAWANT

(A) Bombay Village Panchayats Act (1958), S.35(3) - Bombay Village Panchayats (Meeting) Rules (1959), R.17 - No confidence motion - Post of Sarpanch - Procedure contemplated u/R.17, whether mandatory - R.17 is general rule applicable to all meetings of Panchayats and postulates the manner in which the motion is to be moved - Whereas S.35(3) is substantive provision of main enactment and prescribes pre-requisites for a valid motion of no confidence and the special meeting convened for said motion, namely, motion to be moved by 1/3rd of members and passed by 2/3rd of members - Therefore, if requirements u/S.35(3) are fulfilled, then merely on account of formal defect of non compliance of R.17, the motion cannot be termed as invalid - Thus R.17 held to be directory - R.39 which is part of said Meeting Rules cannot be resorted to take plea that R.17 is mandatory. (Paras 13, 15, 16, 21)

(B) Bombay Village Panchayats Act (1958), S.35(3) - Bombay Village Panchayats (Meeting) Rules (1959), R.17 - No confidence motion - Post of Sarpanch - Effect of non-compliance of R.17 - R.17 postulates only the manner in which the motion is to be moved and is part of subordinate legislation - Further, Sarpanch is pivotal to functioning of Panchayat - Therefore, if Sarpanch has lost mandate of house, his removal is circumscribed by requirements of motion of no confidence being moved by 1/3rd of members and passed by 2/3rd members - In such circumstances mere non-compliance with R.17 would be no ground to invalidate said resolution - Otherwise it would be against tenets of democracy, in as much as, very essence of democracy is that a person who has lost mandate, cannot be allowed to continue. (Paras 15, 16)

(C) Interpretation of Statutes - Interpretation to decide "Whether provision is mandatory or directory" - Tools - A provision is said to be directory if the act complained of is valid though may result in some penal consequences - But provision is said to be mandatory if an act done in breach thereof is termed as invalid - And the test whether the acts committed in breach of provisions are valid or invalid also depends upon intent of legislature and not only upon language of enactment. (Para 13)

(D) Bombay Village Panchayats Act (1958), S.35(3) - Bombay Village Panchayats (Meeting) Rules (1959), R.17 - Applicability of S.44(3) - Scope - Plea raised that said provision applies only when proceedings of Panchayat are conducted when there is vacancy in Panchayat and not to meeting held for passing of no confidence motion - Said plea raised on basis of merely headings of said Section to effect that, 'Vacancy not to affect proceedings of Panchayat' - However, language of sub-section (3) makes it clear that it applies to all acts of Panchayat and is not restricted to the meetings of Panchayat held when there is vacancy - Since words of provision are very clear and unambiguous, recourse to heading for interpretation of provision, not required - Plea based on heading of provision, not tenable - Resultantly test laid down in provision in question namely whether defect affects merits of case, would apply to no confidence motion, if challenge is raised to said motion. (Para 19)

Cases Cited:
Vishnu Ramchandra Patil Vs. Group Gram Panchayat, Kharivli and others, 2013(3) ALL MR 16 =LPA No.203/2013 [Para 1,5]
Viswas Pandurang Mokal Vs. Group Gram Panchayat, Shihu and others, 2011(3) ALL MR 778 =2011 (3) Mh. L.J. 500 [Para 2,6]
Vijay Ramchandra Katkar Vs. Group Gram Panchayat Pali and others, 2010(4) ALL MR 707=2010(4) Mh. L.J. 497 [Para 5]
Waman Shankar Doltade Vs. State of Maharashtra, WP/10298/2011, Dt.28.11.2011 [Para 5]
Sadashiv H Patil Vs. Vithal D Teke and ors., 2001(1) ALL MR 282 (S.C.) =(2000) 8 SCC 82 [Para 8,15]
Rani Drigraj Kuer Vs. Raja Sri Amar Krishna Narain Singh, AIR 1960 SC 444 [Para 13]
K. Narasimhiah Vs. H.C. Singri Gowda, AIR 1966 SC 330 [Para 14,18]
Nandlal Bavanjibhai Posiya and others Vs. Director of Agriculture Marketing and Rural Finance Gandhinagar and others, AIR 2002 Gujarat 348 [Para 17]
Usha Bharti Vs. State of Uttar Pradesh and others, 2014(5) ALL MR 453 (S.C.) =(2014) 7 SCC 663 [Para 17]
Frick India Ltd. Vs. Union of India, AIR 1990 SC 689 [Para 19]
Akhil Bharat Goseva Sangh Vs. State of A.P. and ors., (2006) 4 SCC 162 [Para 19]
B.K.Srinivasan and another etc. Vs. State of Karnataka and ors., AIR 1987 SC 1059 [Para 19]
Janardan Shankar Watane Vs. CEO, Zilla Parishad, Amravati, 1965 Mh.L.J. 2 [Para 20]
Ganesh Raghunath Samel Vs. State of Maharashtra and ors., 2002(4) ALL MR 213 =2002 (4) Bom. C.R.425 [Para 20]


JUDGMENT

R. M. SAVANT, J. :- The issue which at most times is central to a challenge to an order passed confirming the motion of no confidence against the Sarpanch/Upa-Sarpanch 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 :-

"Whether failure to formally move and second a motion of no confidence as required by Rule 17 of the Bombay Village Panchayats (Meeting) Rule, 1959 would render the motion of no confidence carried by the requisite majority under Section 35 of the Bombay Village Panchayats Act, 1958, invalid ?

The issue therefore revolves around whether Rule 17 of the Bombay Village Panchayats (Meeting) Rules 1959 is directory or mandatory in the context of a motion of no confidence passed under Section 35(3) of the Bombay Village Panchayats Act, 1958 (for short "the BVP Act"). The genesis of the reference lies in the disagreement of the Division Bench of A.S.Oka and S.C.Gupte, JJ with the judgment of another Division Bench of this Court (A.M.Khanwilkar and K.K.Tated, JJ) in the matter of Vishnu Ramchandra Patil v/s. Group Gram Panchayat, Kharivli and others LPA No.203 of 2013 : [2013(3) ALL MR 16] & ors. In the said context, it would be apposite to refer to the facts in brief which were before the Division of this Court in the case of Vishnu Ramchandra Patil v/s. Group Gram Panchayat Kharivali : [2013(3) ALL MR 16].

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 :-

[i] whether the procedure stipulated in Rule 17 of the Bombay Village Panchayats (Meeting) Rules, 1959, is a directory or mandatory procedure ?

[ii] whether noncompliance of procedure stipulated in Rule 17 of the Meeting Rules would render the decision taken on the Motion of No Confidence passed in exercise of power under section 35 of the Act invalid, in law?

On the first point the Division Bench held that Rule 17 of the Bombay Village Panchayats (Meeting) Rules, 1959 (for short "the Meeting Rules) to be mandatory as the same was mandatory in relation to all other matters moving before the Panchayat. The Division Bench further held that there was nothing in Rule 17 to suggest that same must be construed as mandatory for General Meeting and directory for a meeting under Section 35. The Division Bench mainly relying upon the full bench decision in the case of Viswas Pandurang Mokal v/s Group Gram Panchayat, Shihu and others 2011(3) Mh. L.J. 500 : [2011(3) ALL MR 778], held that the mandatory nature of Rule 17 has already been answered by the full bench and is therefore no more res-integra. Hence the Division Bench in Vishnu Ramchandra Patil's case in so far as arriving at a conclusion that Rule 17 is mandatory solely relied upon the full bench judgment in Vishwas Pandurang Mokal's case.

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 :-

"20 We are afraid we are unable to subscribe to the above reasoning or persuade ourselves to come to the conclusions arrived at by the learned Division Bench in the case of Vishnu Ramchandra Patil (supra). In the first place, we have not come across any judgment which holds that Rule 17 is mandatory for the purpose of all other motions (i.e. other than a no confidence motion). That is the major premise of the Division Bench judgment. There is no support of authority for that premise. Even the other proposition in the reasoning of the Division Bench (namely, that the issue regarding the mandatory or directory nature of Rule 17 has already been answered by the Full Bench) runs, with utmost respect, counter to the dictum of the Full Bench in Vishwas Pandurang Mokal (Supra). What the Full Bench held was, the question, as to the consequence of noncompliance with any Rule, will have to be decided in each case after considering the nature of the provision. Besides, in particular reference to the mandatory or directory nature of Rule 17 itself or the consequence of noncompliance therewith on the validity or otherwise of a no confidence motion, the Full Bench in terms observed that it was not deciding that question, since the same was not referred to it.

23 Going by these indices, the basic object of the Act may now be seen. The object is to establish village panchayats for any village or group of villages and invest them with such powers and authority as may be necessary to enable them to function as units of local selfgovernment. These units are expected to function democratically and within the framework of the Act. Sub-section (3) of Section 44 of the Act provides as follows:

"44(3) No act or proceedings of a Panchayat shall be deemed to be invalid on account of any defect or irregularity in any such act or proceeding not affecting the merits of the case or on account of any irregularity in the service of notice upon any member or for mere informality."

One must now have regard to the special position of the Sarpanch and Upa-Sarpanch of a panchayat. Under Section 38 of the Act, the executive power, for the purpose of carrying out the provisions of the Act and resolutions passed by a Panchayat, vests in the Sarpanch who shall be directly responsible for the due fulfillment of the duties imposed upon the Panchayat by or under the Act. In the absence of the Sarpanch, the powers and duties of the Sarpanch shall, save as may be otherwise prescribed by rules, be exercised and performed by the Upa-Sarpanch. Consistent with this preeminent position of the Sarpanch and the Upa-Sarpanch visavis the Panchayat, the Act makes special provisions for (1) election of Sarpanch and Upa-Sarpanch, (2) resignation by Sarpanch and Upa-Sarpanch and (3) vacation of the office of the Sarpanch and Upa-Sarpanch by motion of no confidence passed by the Panchayat. The motion of no confidence must be passed by a requisite majority. If the motion is so passed, the Sarpanch or Upa-Sarpanch, as the case may be, subject to other safeguards such as upholding the validity of the motion by the Collector and the Commissioner, shall be deemed to have vacated his office. The main idea behind the nature and design of the statute seems to be the electoral legitimacy of the office of the Sarpanch and Upa-Sarpanch. If the elected Sarpanch or Upa-Sarpanch has lost confidence of two third majority of the house of the Panchayat, he shall be deemed to have vacated his office. The whole object of this legislation will be defected if it is held that by reason of a formal defect, namely, though a motion of no confidence is carried by two third majority, member/s proposing the motion not formally moving or seconding it, as required by Rule 17, would render the motion legislation.

24 There is one more aspect which must bear on the subject. Perusal invalid, defeating the will of the majority, and thereby the very object of the of Section 35 shows that the meeting held thereunder is a special meeting, which is, unlike any other meeting, not presided over by the Sarpanch or Upa-Sarpanch or any other member in their absence. It is presided over by the Tahsildar. The only purpose of that meeting is to consider no confidence motion. The statute only lays stress on the carrying of motion by a requisite majority. On the other hand, Rule 17 is part of subordinate legislation and cannot be so interpreted as to negate the legislative intent of the principal legislation.

25 There is yet another important consideration. As held by the Supreme Court in the case of K. Narasimhaih (supra), the question whether the violation of the provision or irregularity prejudicially affected the proceedings has an important bearing on the subject. As in the case of K. Narasimhaih (supra), even in our case there is an express provision (Section 44(3) of the Act quoted above) to the effect that no act or proceedings shall be invalid on account of any defect or irregularity not affecting the merits of the case. Can it be said that in the present case, the defect or irregularity affects the merits of the case? Are the proceedings of the meeting, which carried the motion by the requisite majority, prejudicially affected by the irregularity complained of? The answer must be a resounding no. The meeting of the Panchayat was attended by all members. All 13 members, who had given the notice of the no confidence motion, were present in the meeting. In their presence, the motion was proposed for voting by the presiding officer of the meeting. Everyone including the Sarpanch, against whom the motion was proposed, was allowed to freely participate in the meeting. A free and fair voting took place and the motion was carried by not less than two third majority. Failure to formally move and second the motion can hardly be said to prejudice anyone or affect the legitimacy of the whole exercise. "

4. The Division Bench thereafter in Paragraph 27 framed the issue which has already been adverted to herein above in the instant judgment.

The aforesaid is therefore the factual backdrop in which a reference has been made to a larger bench.

5. The judgment of the full bench of this Court in Vishwas Pandurang Mokal's case would also be one of the aspects which would have to be taken into consideration whilst answering the reference. It would therefore be apposite to refer to the said judgment. However, prior thereto, it is required to be noted that since there were divergence of views of the learned Single Judges of this Court on the question as to whether Rule 17 of the Meeting Rules is mandatory or directory, it would be necessary to refer to the said decisions in brief. In the case of Vijay Ramchandra Katkar Vs Group Gram Panchayat Pali and others 2010(4) Mh. L.J. 497 : [2010(4) ALL MR 707], a learned Single of this Court (R.C.Chavan, J) held that Rules 17 and 18 are mandatory and any failure to observe these provisions vitiates the entire proceedings. In case of Vishnu R Patil v/s. Group Gram Panchayat, Kharivali, in Writ Petition No.167 of 2011 : [2013(3) ALL MR 16] and ors decided on 26th July 2011 another learned Single Judge of this Court (S.C.Dharmadhikari, J) held that Rule 17 is directory. In the case of Waman Shankar Doltade v/s State of Maharashtra in Writ Petition No.10298 of 2011 decided on 28th November 2011 another learned since Judge of this Court (G.S.Godbole, J) disagreed with the view taken in Vijay Ramchandra Katkar's case and referred the matter to a larger bench of this Court.

6. Now coming to the full bench judgment in Vishwas Pandurang Mokal's case, [2011(3) ALL MR 778] (supra). The said Reference to the full bench was made in view of the divergence of views as to whether the Meeting Rules are applicable to a meeting convened under Section 35 of the BVP Act for consideration of passing of motion of no confidence against a Sarpanch. The full bench in Vishwas Pandurang Mokal's case answered the reference by holding that the Meeting Rules are applicable to a meeting convened under Section 35 of the BVP Act. The relevant paragraph of the judgment of full bench is Paragraph 17 which for the sake of ready reference is reproduced herein under :-

"17. Thus, Rule 17 provides that the person who has submitted notice of the motion shall move the motion in the meeting. Rule 20 deals with how amendments to the motion can be proposed. Rule 21 deals with how a person who wants to speak on a motion has to address. What should be the duration of the speech and what is the decoram to be followed in speaking at the meeting. Thus, in these Rules provisions in detail have been made for the conduct of the meeting both ordinary and special of the village panchayat. Perusal of the No Confidence Motion Rules shows that they do not contain any provision in relation to the conduct of the meeting. Provisions for conduct of the meeting of the village panchayat are to be found in the Meeting Rules. The manner of submitting a requisition for convening a special meeting of the village panchayat to consider motion of no confidence against the Sarpanch or UpSarpanch is to be found in sub-section 1 & 2 of Section 35 and the No Confidence Motion Rules. But neither in Section 35 nor in the No Confidence Motion Rules we find provisions made as how many days notice should be given to the members of the Special meeting to be convened under Section 35. Therefore, in our opinion, for that purpose one will have to follow the provisions of the Meeting Rules because they lay down as to how many days notice of special meeting is to be given to the members. Section 35 provides that the Sarpanch or UpSarpanch against whom the motion is to be moved is entitled to attend and participate in the meeting, and he is entitled to speak at the meeting. But there is no provision to be found made in Section 35 or in the No Confidence Motion Rules as to the manner in which the Sarpanch or UpSarpanch can exercise his right to participate and speak at that meeting. Provisions for that purpose are to be found in the Meeting Rules. Neither Section 35 nor No Confidence Motion Rules lay down as to what is to be done if the requisite quorum is not present at such meeting. But the Meeting Rules contain provisions in that regard. Neither Section 35 nor No Confidence Motion Rules makes provision dealing with the situation when the members present in the meeting disregard the authority of the presiding officer. Those provisions are to be found in the Meeting Rules. In our opinion, therefore, there is no reason why the provisions of the Meeting Rules to the extent that no contrary provision is made either in the Act itself or in the No Confidence Motion Rules should not apply to a meeting called under Section 35. In our opinion, if the provisions of the Meeting Rules are held to be applicable to a meeting called under Section 35, it will facilitate holding of meeting under Section 35 effectively. Therefore, in our opinion, it can be safely said that the provisions of the Meeting Rules generally apply to a special meeting convened under Section 35. However, such provisions of the Meeting Rules which are found to be contrary to the provisions contained either in the Act in relation to the holding of the special meeting for consideration of motion of no confidence against Sarpanch or UpSarpanch or in the No Confidence Motion Rules would not apply to a meeting called under Section 35. Now taking up the question whether specifically provisions of Rule 17 of the Meeting Rules apply to a meeting called under Section 35 is concerned, in our opinion, the provisions of Section 17 will apply in a meeting called under Section 35. As observed above Section 35 contains a provision for submission of requisition by members to the Tahsildar for calling a special meeting of the village panchayat to consider the motion of no confidence against Sarpanch or Up-Sarpanch. It casts a duty on the Tahsildar to call a meeting for that purpose within seven days of the receipt of the requisition. But Section 35 does not contain any provision as to how that meeting is to be conducted, save and except to provide that the Sarpanch or UpSarpanch concerned shall have a right to attend and participate in that meeting. We have already observed above that perusal of No Confidence Motion Rules and the Form of the requisition shows that when the members of the village panchayat submit the requisition to the Tahsildar , what they actually do is that they request the Tahsildar to convene a special meeting of the village panchayat so that in that meeting they can move a motion of no confidence against Sarpanch or UpSarpanch. It is, thus, clear that moving of the motion of no confidence is not by submission of requisition to the Tahsildar. The requisition is only for calling a special meeting to facilitate moving of motion of no confidence. The motion of no confidence is actually moved in the meeting of the village panchayat and as there is no contrary provision to be found either in the Act or in the No Confidence Motion Rules, in relation to moving of a motion in a meeting of the village panchayat, Rule 17 of the Meeting Rules which makes such a provision will apply. In the Meeting Rules there is a provision made for calling a special meeting of village panchayat because a requisition is received from members. Therefore, concept of convening a special meeting of the village panchayat as a consequence of requisition received from the members is to be found in the Meeting Rules itself and therefore, all those provisions contained in the Meeting Rules in relation to convening and holding of a special meeting of the village panchayat will apply to the special meeting convened under Section 35, subject to there being any specific contrary provision in the Act or in the No Confidence Motion Rules.

Perusal of the provision of sub-section 3A of Section 35 shows that provision makes difference between moving of a motion and carrying of a motion by requisite majoirity. Provision of sub-section 3A of Section 35 reads as under:

(3A) If a motion (is not moved or is not carried) by (a majority of not less than two-third of) (or, as the case may be, threefourth, of ) the total number of the members who are for the time being entitled to sit and vote at any meeting of the panchyat, no such fresh motion shall be moved against the Sarpanch, or, as the case may be, the Upa-Sarpanch within, a period of (one year) (from the date of such special meeting.

It is clear that in a special meeting of the village panchayat called for the purpose of consideration of motion of no confidence against the Sarpanch or UpSarpanch, a motion is to be moved in the meeting."

The submission urged on behalf of the Appellant based on the Division Bench judgment in Vishnu Ramchandra Patil's case which in turn heavily relied upon the judgment of the full bench in Vishwas Pandurang Mokal's case, [2011(3) ALL MR 778] (supra), would be taken up a bit later.

7. Heard the learned counsel for the parties i.e. Shri C G Gavnekar for the Appellant, Shri S S Patwardhan for the Respondent No.1 and Shri A B Vagyani for the Respondents/State.

8. It was the submission of Shri C G Gavnekar that since the full bench of this Court has held that the Meeting Rules would be applicable which includes Rule 17, there would have to be strict compliance of the said Rules as otherwise the proceeding of the meeting for consideration of the motion of no confidence would stand vitiated. The learned counsel would further contend that the Village Panchayat being a corporate entity, its affairs are governed by the resolutions passed in its meetings. The learned counsel would seek to draw analogy and thereby seek support from the manner in which the companies under the Companies Act conduct their affairs is by passing of resolutions which are proposed and seconded as also the transaction of business in Parliament where the motion has to be proposed and seconded. It was therefore the submission of the learned counsel that unless the motion is proposed and seconded, the resolution that would be passed in the meeting would be invalid. The learned counsel would contend that having regard to the fact that the motion is required to be passed in respect of the person who has been elected as a Sarpanch the prejudice test cannot be applied and there has to be a strict compliance of the Rules as the consequences of a no confidence motion are drastic as it results in removal of the Sarpanch, reliance was sought to be placed on the judgment of the Apex Court in Sadashiv H Patil v/s. Vithal D Teke and ors (2000) 8 SCC 82 : [2001(1) ALL MR 282 (S.C.)]. The learned counsel by relying upon Rule 39 further sought to contend that passing of the resolution by proposing and seconding it was mandatory.

9. The learned Government Pleader Shri A B Vagyani supported the contentions urged by the learned counsel for the Appellant Shri C G Gavnekar. The learned Government Pleader would state that the stand of the State Government is also that the compliance of Rule 17 is mandatory. In so far as Section 44(3) of the BVP Act is concerned, the learned Government Pleader would contend that the same is applicable to the proceedings mentioned in the said Rule and is not applicable to a meeting held for considering a motion of no confidence.

10. Per contra, the learned counsel appearing for the Respondent No.1 Shri S S Patwardhan would contend that the reliance placed on the full bench judgment in Vishwas Pandurang Mokal's case to contend that Rule 17 is mandatory is misplaced. The learned counsel would contend that the Division Bench of this Court in Vishnu Ramchandra Patil's case has erred in coming to a conclusion that the issue as to whether Rule 17 is directory or mandatory is concluded by the full bench and therefore the said issue is no more res-integra. The learned counsel would contend that the Reference to the full bench is only as regards applicability of the Meeting Rules, and the full bench has therefore in terms observed that whether the Rule is directory or mandatory was not before it for consideration. The learned counsel having regard to the statutory provisions would contend that the Meeting Rules being subordinate legislation an interaction thereof cannot have an impact if the conditions mentioned in the substantive provisions are satisfied viz. if the resolution is moved by 1/3rd of the members and passed by 2/3rd of the members entitled to sit and vote. The learned counsel would contend that ultimately it would have to be seen what prejudice has been caused on account of infirmity in the proceeding and the resolution cannot be nullified merely on the ground that there was a procedural noncompliance of the rules.

11. At this stage, a reference to the provisions which are in contention for answering the reference would have to be made. The said BVP Act can be said to be formulated in furtherance of the policy of encouraging local self government at the grass root level and can be said to epitomize the policy of the government in that regard. The endeavour is to establish a village panchayat in every village or group of villages and investing them with such powers and authority as may be necessary to enable them to function as units of local self government for carrying out development activities in rural areas, and for certain other matters. The Sarpanch is therefore a pivot between the village administration, the district administration and the State administration. His role therefore in the affairs of the village assumes importance. It is considering the importance of the said post that the provisions have been made for his election as well as removal. The question which has been referred therefore revolves around the removal of the Sarpanch. In said context it would be necessary to notice the following statutory provisions.

A] Sections 30(1), 35 & 44(3) of the BVP Act :-

"30. Election of Sarpanch :( 1) Every Panchayat shall be presided over by a Sarpanch who shall be elected by, and from amongst, the elected members thereof."

(2) ...............................

(3) ...............................

(4) ...............................

(5) ...............................

(6) ...............................

"35. Motion of no confidence :- (1) A motion of no confidence may be moved by not less than one third of the total number of the members who are for the time being entitled to sit and vote at any meeting of the Panchayat against the Sarpanch or the Upa-Sarpanch after giving such notice thereof to the Tahsildar, as may be prescribed. Such notice once given shall not be withdrawn.

(2) Within seven days from the date of receipt by him of the notice under sub-section (1), the Tahsildar shall convene a special meeting of the Panchayat for considering the motion of no confidence at the office of the Panchayat at a time to be appointed by him and he shall preside over such meeting. At such special meeting, the Sarpanch, or the Upa-Sarpanch against whom the motion of no confidence is moved shall have a right to speak or otherwise to take part in the proceedings at the meeting (including the right to vote).

(3) If the motion is carried by a majority of not less than two-third of the total number of the members who are for the time being entitled to sit and vote at any meeting of the Panchayat or the Upa-Sarpanch, as the case may be, shall cease to hold office after seven days from the date on which the motion was carried unless he has resigned earlier or has disputed the validity of the motion so carried as provided in sub-section (3B); and thereupon the office held by such Sarpanch or Upa-Sarpanch shall be deemed to be vacant.

Provided that, where the office of the Sarpanch being reserved for a woman, is held by a woman Sarpanch, such motion of no-confidence shall be carried only by a majority of not less than threefourth of the total number of the members who are for the time being entitled to sit and vote at any meeting of the Panchayat;

Provided further that, no such motion of no-confidence shall be brought within a period of six months from the date of election of Sarpanch or Upa-Sarpanch."

(3A) If the motion [is not moved or is not carried] by [a majority of not less than two-third of] [ or, as the case may be, three fourth, of] [***] the total number of the members [* * *] who are for the time being entitled to sit and vote at any meeting of the panchayat, no such fresh motion shall be moved against the Sarpanch or, as the case may be, the Upa Sarpanch within a period of [one year from the date of such special meeting.]

(3B) If the Sarpanch or, as the case may be, the Upa-Sarpanch desires to dispute the validity of the motion carried under sub-section (3), he shall, within seven days from the date on which such motion was carried, refer the dispute to the Collector who shall decide it, as Jar as possible, within fifteen days from the date on which it was received by him; and any such decision shall, subject to an appeal under sub-section (3C), be final.

(3C) Any person aggrieved by the decision of the Collector may, within seven days from the date of receipt of such decision, appeal to the Commissioner who shall decide the appeal, as far as possible, within fifteen days from the date on which the appeal is received by him, and any such decision shall be final.

(3D) Where on a reference made to him under sub-section (3B), the Collector upholds the validity of the motion carried under sub-section (3) and no appeal is made by the Sarpanch or the Upa-Sarpanch sub-section (3C) within the limitation period specified in that sub-section, or where an appeal is made under sub-section (3C) but it is rejected by the Commissioner, the Sarpanch or, as the case may be, the Upa-Sarpanch shall cease to hold office, in the former case, immediately after the expiry of the said limitation period and, in the latter case, immediately after the rejection of the appeal, and thereupon the office held by such Sarpanch or Upa-Sarpanch shall be deemed to be vacant.]

44. Vacancy not to affect proceedings of Panchayat :-

[(1) During any vacancy in the Panchayat the continuing members may act as if no vacancy had occurred.

(2) [Subject to the provisions of sub-section (1-A) of Section 145, the Panchayat] shall have power to act notwithstanding any vacancy in the membership or any defect in the constitution thereof; and such proceedings of the Panchayat shall be valid notwithstanding that it is discovered subsequently that some person who was not entitled to do so sat or voted or otherwise took part in the proceedings.

(3) No act or proceedings of a Panchayat shall be deemed to be invalid on account of any defect or irregularity in any such act or proceeding not affecting the merits of the case or on account of any irregularity in the service of notice upon any member or for mere informality".

B] Rule 2 of the Bombay Village Panchayats Sarpanch and Upa-Sarpanch (No Confidence Motion) Rules, 1975 (for short "the No Confidence Motion Rules") :

"2(1) The members of a panchayat who desire to more a motion of no confidence against the Sarpanch or the Upa-Sarpanch shall given notice thereof in the form appended hereto to the tahsildar of the taluka in which such panchayat is functioning. Where the members desire to move the motion of no-confidence against the Sarpanch as well as the Upa-Sarpanch, they shall give two separate notices.

(2) The notice under sub-rule (1) shall be accompanied by seven additional copies thereof, and the Tahsildar shall send one copy to the Sarpanch, one to the Upa-Sarpanch and one each to the Zilla Parishad, the Panchayat Samiti, the Collector and the Commissioner. One copy shall also be given to the Secretary.

(3) The Tahsildar shall, immediately on receipt of notice under sub-rule (1), satisfy himself that the notice has been given by not less than one third of the total number of members (other than associate members) who are for the time being entitled to sit and vote at any meeting of the panchayat and then convene a special meeting for the purpose within seven days from the date of receipt of such notice."

C] Rules 2(c), 16, 17, 18, 23 28, 38 and 39 of the Bombay Village Panchayats (Meeting) Rules, 1959 :

"2(c) "motion" means a proposal made to evoke action on the part of the panchayat, and includes an amendment of a motion."

16. A matter requiring the decision of the panchayat shall be decided by means of a question put by the person presiding on a motion made by a member.

17. (1) A member who has given notice of a motion shall, when called on, either.-

(a) state that he does not wish to move the motion, or

(b) move the motion in which case he shall commence his speech by a formal motion in the terms appearing on the list of business, after the motion is duly seconded.

(2) If a member when called is absent, any other member may, with the permission of the person presiding, move the motion standing in the name of the absent member. If permission is not granted to the other member to move the motion, the motion shall lapse.

18 After a motion has been moved and seconded the person presiding shall propose the question by reading the motion for the consideration of the panchayat.

23 After a motion has been placed before the meeting for consideration under Rule 18, the mover may speak in support of the motion and the seconder may either follow or reserve his speech for a later stage of the debate thereon.

28 (1) Votes shall ordinarily be taken by word of motion or by a show of hands but may, if the majority of members present so decide, be taken by ballot. (2) Any member present at a meeting may refrain from voting if he so chooses

38 The person presiding shall have power to divide motion into two or more distinct motions or an amendment into two or more amendments, as he may deem necessary.

39 No motion shall be discussed or noted in the minute book unless and until it has been properly proposed and seconded, provided that a motion by the person presiding need not be seconded."

12. The election of the Sarpanch from amongst the members of the Panchayat is provided by Section 30(1). The rest of the sub-sections of Section 30 are not material for the present reference. A reading of Section 35 discloses that the legislature considering the importance of the post of Sarpanch and Upa-Sarpanch has advisedly provided safeguards which can be said to be inbuilt in Section 35. In the context of passing of a motion of no confidence, the first safeguard is that the requisition has to be moved by not less than 1/3rd of the members who are entitled to sit and vote. The second safeguard is that the resolution has to be passed by 2/3rd of the members who are entitled to sit and vote, which in respect of a woman Sarpanch is 3/4th of the members who are entitled to sit and vote. The said Section also provides that no motion could be moved against Sarpanch or Upa-Sarpanch within a period of six months from the date of election of Sarpanch or Upa-Sarpanch. The underlying principle appears to be to lend stability in so far as the posts of Sarpanch and Upa-Sarpanch are concerned and to see to it that the elected body functions smoothly. In so far as the No Confidence Motion Rules are concerned, they prescribe the procedure and the manner in which the motion is to be moved and the action to be taken by the Tahsildar after he receives a requisition from 1/3rd of the total number of members in terms of Section 35(1) of the BVP Act.

13. Now coming to the Meeting Rules, they have been framed in exercise of the powers conferred by Section 176 of the BVP Act. In Rule 2(C) the term "motion" is defined which means a proposal made to evoke action on the part of the panchayat and includes an amendment of a motion. The notice issued under Section 35(1) is therefore referable to a proposal as contemplated in Rule 2(c) of the Meeting Rules. Rule 17 of the Meeting Rules, which is at the centre of the debate in so far as the present proceedings are concerned, postulates the manner in which the motion is to be moved and the lapsing thereof. Pertinently the said Rule does not contain the consequences for the noncompliance of proposing or seconding of a motion of no confidence. Obviously the same could not have been provided for in view of the fact that they are the general rules applicable to all meetings of the Panchayat.

Then Rule 39 posits that no motion shall be discussed or noted in the minute book unless and until it has been properly proposed and seconded and contemplates that a motion by the person presiding need not be seconded. Reliance was sought to be placed on the said Rule 39 on behalf of the Appellant to contend that since Rule 39 provides that motion could only be entered into if it is only proposed or seconded. The motion of no confidence which is sought to be moved has therefore to be proposed and seconded otherwise it is invalid. Hence it is Section 35 which is the substantive provision which prescribes the prerequisite for a valid motion of no confidence i.e. a requisition to be made by 1/3rd members who are entitled to sit and vote, and that the motion is carried by 2/3rd of the members who are entitled to sit and vote. However, in so far as the starting point for passing of a motion of no confidence is concerned, it is the requisition which is made to the Tahsildar on the basis of which the Tahasildar acts. Though the full bench in Vishwas Pandurang Mokal has held that motion is to be moved in the meeting, the fact that the requisition by 1/3rd members is the cause for the meeting cannot be lost sight of. In fact the moving of the requisition can be said to be a part of the right to move the no confidence motion, which is given by the statute. The Meeting Rules as indicated above are the general rules applicable to all the meetings of the panchayat. In respect of the other business of the Panchayat, may be the resolutions are required to be proposed and seconded, however, in so far as motion of no confidence is concerned, a special meeting is convened by the Tahasildar, only for the said purpose, and the prerequisite for the same is 1/3rd members requisitioning the said meeting. Hence in our view, the requirements of Section 35(1) and (3) of the BVP Act, therefore, can be said to dent the requirement of the strict compliance of Rule 17 in the matter of the motion of no confidence being proposed and seconded. It is also required to be noted that the No Confidence Motion Rules do not provide for any such requirement of the motion being proposed or seconded. Hence when the special rules do not provide for the same, a strict compliance of the general rules, for meetings is not expected. In so observing, we are not, for a moment, questioning the applicability of the Meeting Rules, but we are only answering the question as to what effect the non compliance of Rule 17 in the matter of proposing and seconding the motion has on the validity of the no confidence motion. Hence it is not necessary to draw parallels between how the business is conducted in Parliament, by the Companies registered under the Companies Act and the meeting of the panchayat held for passing of a no confidence motion.

The tools or cannons for interpretation as also the indices in so far as to whether a provision is directory or mandatory are well settled over a long period of time. To put it simply a provision is said to be directory if the act complained of is valid though may result in some penal consequences but is mandatory if an act done in breach thereof is termed as invalid. The leading case on the said aspect is Rani Drigraj Kuer v/s. Raja Sri Amar Krishna Narain Singh AIR 1960 SC 444. However, it is well settled in so far as mandatory provisions are concerned which result in nullification of the act if not complied with, there are exceptions to the same. Even in respect of provisions which can be said to be directory, there are exceptions namely that even if the directory provision is not complied at all, the same would not affect the validity of the Act. However the test whether the acts committed in breach of the provisions are valid or invalid also depends upon the intent of the legislature and not only upon the language of the enactment.

14. It is also well settled that whilst interpreting the provisions, the intent of the legislature would have to be seen, as the intent of the legislature is also one of the indices for coming to a conclusion as regards the nature of the provisions. At this stage, it would also be relevant to refer to Section 44 of the BVP Act and especially sub-section (3) thereof which has already been extracted herein above. The test of the intention of the legislature and Section 36 of the Mysore Town Municipalities Act, which was akin to Section 44(3) of the BVP Act had come up for consideration before the Apex Court in the case of K. Narasimhiah v/s. H.C. Singri Gowda AIR 1966 SC 330 on which strong reliance was placed on behalf of the Respondent No.1. The Apex Court in the said case was concerned with a rule of meetings under the Mysore Town Municipalities Act, 1951. The said Rule required giving of three days notice of a special meeting to discuss a resolution to express no confidence. In the said case, the town municipality had 20 councillors, 13 of whom had sent a requisition to the President to convene a special general meeting to discuss a resolution expressing no confidence in the President. The request was handed over to the President. However, since the President did not take any steps for convening the meeting, the Vice President called a meeting to discuss the resolution. A notice of that meeting was sent by the Vice President. Whilst the notice was received by 15 of the 20 councillors in time (i.e. before 3 days), 5 councillors including the President received it late i.e. less than 3 days before the meeting. 19 out of the 20 councillors including the President were present for the meeting. However, it seems that the President left the meeting and the meeting was, in his absence, chaired by the Vice President. The no confidence motion was passed, with 15 councillors supporting the same. The said motion was challenged in the High Court. The High Court rejected the Petition. The matter was carried before the Apex Court. The question before the Apex Court was therefore whether the requirement of 3 days' notice was such that the failure to comply with it shall have the consequence of making what is done invalid in law. The Apex Court observed that the answer to the same lies in the intention of the legislation and to ascertain the intention, the Court has to examine carefully the object of the statute, the consequence that may follow from insisting on a strict observance of the particular provision and above all the general scheme of the other provisions of which it forms a part. Paragraph No.12 of the judgment is material and is produced herein under :-

"The question then is : Is the provision of three clear days notice mandatory, i.e. does the failure to give such notice make the proceedings of the meeting and the resolution passed there invalid ? The use of the word "shall" is not conclusive on the question. As in all other matters of statutory construction the decision of this question depends on the ascertainment of the legislature's intention. Was it the legislature's intention in making the provision that the failure to comply with it shall have the consequence of making what it done invalid in law? That is the question to be answered. To ascertain the intention the Court has to examine carefully the object of the statute, the consequence of the particular provision and above all the general scheme of the other provisions of which it forms a part."

The Apex Court has also considered the effect of Section 36 of the Mysore Act which was akin to Section 44(3) of the Bombay Village Panchayats Act. In the said context Paragraph No.20 of the judgment is material and is reproduced herein under :-

"We are, therefore, of opinion that the fact that some of the Councillors received less than three clear days' notice of the meeting did not by itself make the proceedings of the meeting or the resolution passed there invalid. These would be invalid only if the proceedings were prejudicially affected by such irregularity. As already stated, nineteen of the twenty Councillors attended the meeting. Of these 19, 15 voted in favour of the resolution of no-confidence against the appellant. There is thus absolutely no reason for thinking that the proceedings of the meeting were prejudicially affected by the "irregularity in the service of notice.""

15. It is in the context of the test laid down by the Apex Court in K. Narasimhiah's case that the instant case would have to be considered. As indicated above, the object of the BVP Act is to establish village panchayats so that they function as units of local self government. The Act can be said to reflect the policy of the State in so far as decentralization of powers and vesting them in the local self governments is concerned. The Sarpanch and Upa-Sarpanch can be said to be pivotal to the functioning of the GramPanchayat, as the executive power is vested in the Sarpanch who is made directly responsible for the due fulfillment of the duties imposed upon the Panchayat by or under the Act. It is considering the preeminent position that the Sarpanch and Upa-Sarpanch are said to occupy that the provisions have been made as regards their election, resignation, vacation of the office of the Sarpanch and Upa-Sarpanch by a motion of no confidence passed by the Panchayat. The idea as indicated above is to lend stability to the office of the Sarpanch and Upa-Sarpanch so that the administration at the village level does not suffer. However, if the Sarpanch or Upa-Sarpanch has lost the mandate of the house, his removal is circumscribed by the requirement of the motion of no confidence being moved by 1/3rd of the members and passed by 2/3rd of the members, then as a democratic practice he would have to vacate the office. Hence if on account of a formal defect viz that the motion is not proposed or seconded though passed by 2/3rd majority, if the motion is to be termed as invalid, the same would result in nullifying and defeating provision in the BVP Act which provides the manner in which a Sarpanch can be removed. The effect of such invalidation would be that the smooth functioning of the elected body would be affected. The consequence would be that though the requirements of the Act have been fulfilled, the proceedings would be held to be invalid on account of the non compliance of Rule 17, which is part of subordinate legislation, in the matter of proposing and seconding of the motion. A provision contained in a subordinate legislation cannot prevail, if the requirement of the main enactment i.e. the Act has been fulfilled. In such an eventuality the requirement of the subordinate legislation would have to give way to the Act and hence the requirement of Rule 17 in the matter of proposing and seconding the motion can only be said to be directory. For the same reason Rule 39 which is part of the same Meeting Rules would have no impact on the conclusion that Rule 17 is directory and not mandatory.

In so far as the judgment in Sadashiv H Patil's case, [2001(1) ALL MR 282 (S.C.)] (supra) is concerned, in the said case, the Apex Court was concerned with the disqualification of a Municipal Councillor under the Maharashtra Local Authority Members' Disqualification Act, 1986. The scheme of the said Act stands apart from the provisions as contained in the BVP Act. Under the said Act an application for disqualification is contemplated. The said application can be filed if a Councillor is alleged to have incurred a disqualification under Section 3 of the said Act. The application has to be adjudicated in terms of Section 7 of the said Act and since the result of the disqualification if allowed is drastic, i.e. the Councillor ceases to be a Councillor, the Apex Court held that the provisions have to be strictly complied with. In our view, the said judgment would have no application as the scheme of the said Act stands apart from the provisions of the BVP Act. Moreover, the Sarpanch against whom a motion of no confidence is passed, ceases to be a Sarpanch, but however continues to be a member of the GramPanchayat.

16. The issue has to be looked at from one more perspective. In terms of Section 38 of the BVP Act, the executive power of the Panchayat is vested in the Sarpanch and it is the Sarpanch who is made responsible for the acts of the Panchayat. Hence if an interpretation which results in the Sarpanch being continued, which Sarpanch has lost the mandate of the house, the same would result in acting against the very tenets of democracy. It is required to be borne in mind that the very essence of democracy and fundamental to it, is that a person who has lost the mandate cannot be allowed to continue. Hence though Rule 17 may not have been strictly complied with but the resolution having been passed by 2/3rd majority, which is the requirement of the Act, the said resolution therefore cannot be invalidated on the ground that there is an infirmity in the proceedings.

17. In the said context it would be gainful to refer to the judgment of the full bench of the Gujarat High Court in the matter of Nandlal Bavanjibhai Posiya and others v/s. Director of Agriculture Marketing and Rural Finance Gandhinagar and others AIR 2002 Gujarat 348. The issue before the full bench of the Gujarat High Court was, whether in the absence of express provisions, for moving and passing of a no confidence motion against the Chairman/Vice Chairman of Agricultural Produce Market Committee under the Gujarat Agricultural Produce Markets Act, 1963 and the Rules framed thereunder and the Chairman of Social Justice Committee under the Gujarat Panchayats Act and the Rules framed thereunder, such a motion can validly be passed. In the said context, the full bench of the Gujarat High Court was required to interpret the words "ceasing to hold the office for any reason" in Rule 33(2) of the Gujarat Agriculture Produce Market Rules, 1965 would include "removal or recall of Chairman or Vice-Chairman by moving and passing of a no confidence motion against him". The full bench of the Gujarat High Court held that removal cannot be restricted to merely the reason contained in the second proviso to sub-rule (1) of Rule 33 i.e. if he ceases to be a member of the Market Committee, but the term "ceasing to hold office for any reason" is a term of wider connotation and would therefore cover situations and contingencies inclusive of the contingency covered by the second provision to sub-rule (1) of Rule 33.

The full bench of Gujarat High Court held that having regard to the statutory provisions applicable in relation to the Chairman and/or Vice-Chairman of the Market Committee, it can be said that if a holder of the office is elected by simple majority by the body in the requisite quorum, he can be removed or recalled by a simple majority in the absence of any provision providing such a course or prescribing any particular procedure for moving the no confidence motion with a particular majority and passing the same by a particular majority. Paragraphs 48, 51, 52, 62, 66, 68 and 72 of the said report are material and are reproduced herein under :-

48. As we have taken note of the Rules and quoted them above, election to the Office of the Chairman and Vice-Chairman can be made by the members of the Committee with quorum of l/3rd by simple majority. If the election to the Office can be made by l/3rd members present as the quorum, by simple majority, a no-confidence motion to remove or recall a member elected to the Office of Chairman or Vice-Chairman by simple majority with same 1/3 quorum is permissible and not expressly prohibited by either the provisions of the Act or the Rules.

51. Our conclusion, therefore, is that moving of a no-confidence motion and passing the same by simple majority is permissible and not expressly prohibited by either the provisions of the Agricultural Produce Market Act or the Rules. In fact, as we have read and construed, under Rule 33{2) and Rule 35 (quoted above) passing of no-confidence motion against Chairman and Vice-Chairman is one of the reasons contemplated in the Rules by which vacancy is created in those offices and which are required to be filled by the Director by calling a meeting of the Committee for the purpose.

52. On behalf of the petitioners, it is urged that under the Agricultural Produce Markets Act and the Rules, no procedure has been indicated for moving and passing a no-confidence motion and for grant, of opportunity to the holder of the elected office against whom the motion is moved. As we have examined the provisions of the Act and the Rules in detail and discussed them above, the contention cannot be accepted that no procedure is indicated under which a no-confidence motion can be moved and passed. It is true that there is no express provision for a minimum prescribed number for moving a motion by the members and there is also no prescribed majority by which it can be passed, but as we have held above, in the absence of such a provision of a requisite majority for passing and moving it, no-confidence motion like any other subject or agenda in a meeting, can be passed by simple majority. As we have held above, if the election in a meeting with requisite quorum can be made by simple majority to the post of Chairman/Vice-Chairman, a no-confidence motion can be moved and be passed by simple majority against the holder of the post.

62. Taking somewhat a different view from the observations of the Delhi High Court in the case of Bar Council (supra), we have held that not as a common law right, but an inherent statutory right exists in the members of the elected body to remove its leader by no-confidence motion in accordance with the same procedure by which he is elected and in the absence of contrary provision in the law governing such elected body, such right has to be read into the statute.

66. Our conclusion, therefore, both in relation to the Chairman and/or Vice-Chairman of Market Committee under the Agricultural Produce Markets Act and the Rules and Chairmen of various Committees of Panchayats under the Panchayats Act and the Rules, is that if a holder of office is elected by simple majority by the body in requisite quorum, he can be removed or recalled by a simple majority, in the absence of any provision prohibiting such a course or prescribing any particular procedure of moving the no-confidence motion with a particular majority and passing the same by a particular majority.

68. In construing provisions of law regulating the constitution and working of an elected body, such interpretation should be preferred which ensures its smooth functioning, and any other interpretation which might create hindrance or stalemate in its functioning needs to be avoided.

72. In this case, 11 Directors of Market Committee Valsad moved no-confidence motion against the Chairman, A meeting was duly called in accordance with Rule 26 of the Market Committee Rules. The petitioner was present in the meeting concerned for passing no-confidence motion held on 1172001. In the meeting even a charter of grievances and charges against the petitioner for his alleged misconduct or misdeeds was given in writing, which is annexed with the connected Letters Patent Appeal filed by the same petitioner. Under the interim protection given by this Court, the votes given in die said meeting had been kept in sealed cover and the result is not declared. Since, we have come to the conclusion that a no-confidence motion can validly be passed under the existing provisions of the Act and the Rules, we vacate the interim orders granting interim relief to the petitioner and direct the respondent Authorities, viz., the Deputy Director and Director (respondent Nos. 1 and 2) to open the seated cover of the proceedings of the meeting of the no-confidence motion to declare the result and implement the same. (emphasis supplied)

Hence even in the absence of a provision for removal of the chairman by passing of a no confidence motion, the full bench of the Gujarat High Court recognized such a right as being inherent in the body which has elected him and thereby has given preeminence to the will of the members who constitute the house.

The judgment of the Apex Court in Usha Bharti v/s. State of Uttar Pradesh and others (2014) 7 SCC 663 : [2014(5) ALL MR 453 (S.C.)] is also eloquent as regards the applicability of the democratic principles. In the said case, the issue before the Apex Court was whether Section 28 of the U.P. Kshettra Panchayats and Zilla Panchayats Act, 1961 providing for removal of the Chairperson by a no confidence motion was in violation of Part IX of the Constitution which was inserted by the 73rd constitutional amendment. The Apex Court held that though by the 73rd constitutional amendment the Panchayati Raj Institutions acquired the status and dignity of viable and responsive people's bodies, they are not meant to provide an all pervasive protective shield to a Chairperson even in cases of loss of confidence of the constituents and therefore held that Section 28 was not repugnant to Part IX of the Constitution of India. Paragraphs 41 and 44 of the said judgment are material and reproduced herein under :-

"41 The provisions of the 73rd Constitutional amendment are to ensure that Panchayati Raj Institutions acquire the status and dignity of viable and responsive people's bodies. The provisions are not meant to provide an all pervasive protective shield to an Adhyaksha, Zila Panchayat, even in cases of loss of confidence of the constituents. Provision in Section 28, therefore, cannot be said to be repugnant to Part IX of the Constitution of India."

44. We reiterate the view earlier expressed by this Court in Bhanumati & Ors. (supra), wherein this Court observed as follows: (SCC p.19, paras 5758)

"57. It has already been pointed out that the object and the reasons of Part IX are to lend status and dignity to Panchayati Raj institutions and to impart certainty, continuity and strength to them. The learned counsel for the appellant unfortunately, in his argument, missed the distinction between an individual and an institution. If a no-confidence motion is passed against the Chairperson of a panchayat, he/she ceases to be a Chairperson, but continues to be a member of the panchayat and the panchayat continues with a newlyelected Chairperson. Therefore, there is no institutional setback or impediment to the continuity or stability of the Panchayati Raj institutions.

58. These institutions must run on democratic principles. In democracy all persons heading public bodies can continue provided they enjoy the confidence of the persons who comprise such bodies. This is the essence of democratic republicanism. This explains why this provision of no-confidence motion was there in the Act of 1961 even prior to the Seventy-third Constitution Amendment and has been continued even thereafter. Similar provisions are there in different States in India."

The Apex Court has therefore given weightage to and reiterated the democratic principle that an elected person is entitled to continue in office only till such time as he enjoys the confidence of the persons who comprise such bodies.

18. Since much store was laid on the judgment of the Division Bench of this Court in Vishnu Ramchandra Patil's case and since the Division Bench in the said case has relied upon the judgment of the full bench in Vishwas Pandurang Mokal's case it would be necessary to consider the said Division Bench Judgment. The Division Bench, in so far as the issue as to whether Rule 17 is directory or mandatory is concerned, relied upon the full bench judgment in Vishwas Pandurang Mokal's case and held that the said issue is no more res-integra in view of the full bench Judgment. In fact the full bench in Vishwas Pandurang Mokal's case has specifically held that the question as to the consequence of noncompliance of any rule will have to be decided in each case after considering the nature of the provision. The full bench has observed that as regards whether Rule 17 is mandatory or directory or consequence of noncompliance on the validity or otherwise on the confidence motion, the full bench observed that it was not deciding that question since the same was not referred to it. Hence the Division Bench in the instant LPA was right when it observed that the finding recorded by the Division Bench in Vishnu Ramchandra Patil's case that the issue as to whether Rule 17 is directory or mandatory is no more res-integra on account of the full bench judgment runs counter to the dictum of the full bench. After so observing the Division Bench in the instant LPA observed that it could not be persuaded to take the view as taken by the Division Bench in Vishnu Ramchandra Patil's case and therefore referred the issue to a larger bench. In so far as Vishnu Ramchandra Patil's case is concerned, it is required to be noted that Section 44(3) of the BVP Act was not brought to the notice of the said Division Bench as also the judgment in K Narasimhiah's case (supra) was not cited before it. Hence the Division Bench in Vishnu Ramchandra Patil's case has rendered its decision oblivious of the said provision as well as the judgment of the Apex Court in K Narasimhia's case. The judgment in Vishnu Ramchandra Patil's case therefore does not state the correct position in law visavis whether Rule 17 is directory or mandatory.

19. The applicability of Section 44(3) of the BVP Act was sought to be questioned on behalf of the Appellant and the State on the ground that the said provision applies only when the proceedings of the Panchayat are conducted when there is a vacancy in the Panchayat and would therefore not apply to a meeting held for passing of a motion of no confidence. In support of the said contention reliance was sought to be placed on the heading of the said Section which is to the following effect; "Vacancy not to affect proceedings of Panchayat".

In so far as headings being used as a tool for interpretation of a provision is concerned. It is well settled that they cannot control the plain words of the provision, they also cannot be referred to for the purpose of construing the provision when the words used in the provision are clear and unambiguous nor can they be used for cutting down the plain meaning of the words in the provision when only in the case of ambiguity or doubt the heading or subheading may be referred to as an aid in construing the provision. (See Frick India Ltd. v/s. Union of India AIR 1990 SC 689).

In so far as sub-section 3 of Section 44 of the BVP Act is concerned, the said sub-section 3 can be said to be an exception to sub-sections 1 and 2 of Section 44 of the BVP Act. The language of sub-section 3 makes it very clear that it applies to all acts or proceedings of the Panchayat, and is not restricted to the meeting of the Panchayat held when there is a vacancy. Since the words are very clear and ambiguous, it is not necessary to take recourse to the heading for interpretation of the said provision. The said provision would therefore apply to a meeting held for passing of a motion of no confidence. Resultantly, the test whether the defect or irregularity affects the merits of the case would come into play.

It is further required to be noted that the provision akin to Section 44(3) of the BVP Act has been recognized as a feature of modern legislations. The said provision is inserted to put beyond challenge the defect of constitution of the statutory body and defects of procedure which have not led to any substantial prejudice. The Apex Court has nick-named the said provision as the "Ganga" clause thereby meaning it to be a clause cleansing the proceedings of any defects. An identical clause/section had come up for consideration before the Apex Court in B.K.Srinivasan and another etc. v/s. State of Karnataka and ors. AIR 1987 SC 1059 and thereafter in Akhil Bharat Goseva Sangh v/s. State of A.P. and ors. 2006 4 SCC 162 . In B K Srinivasan's case the Apex Court was concerned with Section 76J of the Mysore Town and Country Planning Act, 1961. The said Section 76J read thus :-

"76 J. Validation of acts and proceedingsNo act done or proceeding taken under this Act shall be questioned on the ground merely of,

(a) the existence of any vacancy in, or any defect in the constitution of the Board or any Planning Authority;

(b) any person having ceased to be a member;

(c) any person associated with the Board or any planning authority under section 4F having voted in contravention of the said section; or

(d) the failure to serve a notice on any person, where no substantial injustice has resulted from such failure; or

(e) any omission, defect or irregularity not affecting the merits of the case."

In the said case Section 13(4) and Rule 33 required publication of Outline Development Plan as approved by the Government in the Official Gazette. What was published in the Gazette was a notice with Outline Development Plan as approved by the Government was available for the inspection at the office of the Planning Authority during office hours. The Apex Court held that on a proper construction of section 13(4) the publication complied with its provisions and that even if there was any defect it was cured by Section 76J. The said Section 44(3) therefore cleanses the proceedings of any defect if the same do not affect the merits of the case.

Hence though we have come to a conclusion that Rule 17 of the Meeting Rules is directory however on the touchstone of Section 44(3) of the BVP Act and having regard to the fact that the resolution has been passed by a 2/3rd majority, any defect in the procedure relating to passing of the said resolution can be said to be cured, and therefore, on the application of Section 44(3) of the BVP Act, the resolution cannot be said to be vitiated on account of any infirmity in the proceedings.

20. Since reliance on behalf of the Appellant herein was sought to be placed on the judgment of the Division Bench in Janardan Shankar Watane v/s. CEO, Zilla Parishad, Amravati 1965 Mh.L.J. Note No.2, as also the judgment of the Division Bench of this Court in Ganesh Raghunath Samel v/s. State of Maharashtra and ors. 2002 (4) Bom. C.R.425 : [2002(4) ALL MR 213] in support of their contention that Rule 17 is mandatory and non-compliance thereof result in the proceeding being vitiated, it would be necessary to consider the said two judgments.

In Janardan Shankar Watane's case the Division Bench was concerned with Rule 2 of the No Confidence Motion Rules. The said Rule as it then stood required that the special meeting under Section 35 of the BVP Act ought to be held within 7 days from the date of receipt of the requisition but before expiry of 15 days. The Division Bench held that the right to move a motion of no confidence was a creature of the Act which provides for exercise of that right in the manner prescribed by the rules and that where a statute gives a right to do something in a given manner, it can be done only in that manner and in no other. The said Rule 2 was held to be a part of the right itself as such considered mandatory and a resolution passed in contravention was held to be illegal. In so far as the said Rule 2 is concerned, the same was in sync with Section 35(2) of the BVP Act, as Section 35(2) also provides that a meeting is to be called within 7 days from the date of receipt of the notice by the Tahasildar. It is in the said context, the Division Bench held that the said Rule is a part of the right itself, and is therefore, mandatory. However, in so far as Rule 17 is concerned, it is a part of the general rules applicable to meetings of the Panchayat, and noncompliance thereof cannot impinge upon the resolution which satisfies the requirements of Section 35(3) of the BVP Act.

In so far as the judgment in Ganesh Raghunath Samel's case is concerned, the Division Bench in the said case was concerned with Section 35(2) which as indicated above postulates that a meeting is to be held within 7 days from the date of receipt of the notice by the Tahasildar. The Division Bench held that a meeting held after the stipulated period of seven days would be illegal and all consequential action in pursuance of the said no confidence motion was required to be quashed and set aside. In Ganesh Raghunath Samel's case the Division Bench was concerned with the compliance of a substantive provision and it is in the said situation that the Division Bench held that the motion of no confidence passed in the meeting held after 7 days was illegal. In our view, the aforesaid two judgments in Janardan Shankar Watane's case and Ganesh Raghunath Samel's case, [2002(4) ALL MR 213] (supra) do not further the case of the Appellants that Rule 17 is mandatory and that there has to be a strict compliance thereof.

21. Finally to put the matter in perspective, the requirement of Rule 17 in the matter of proposing and seconding the motion cannot impinge upon the validity of the motion of no confidence which has otherwise been passed by fulfilling the requirement of Section 35(3) of the Bombay Village Panchayats Act, 1958. The infraction that has occurred on account of the motion not being formally proposed and seconded cannot invalidate the motion if the same has been passed by fulfilling the requirements of Section 35(3) of the BVP Act, as the said infraction does not affect the merits of the case. Hence we hold that Rule 17 is directory, and the test laid down in Section 44(3) of the BVP Act namely whether the defect affects the merits of the case, would have to be applied, if a challenge is raised to such a motion. We accordingly answer the reference and remit the matter back to the Division Bench for the above Letters Patent Appeal being decided on merits.

Ordered accordingly.