Poonam Bharat Kudale v. The State of Maharashtra and Ors

JUDGMENT:

¶1Heard Mr. Kalpesh Patil, learned counsel appearing for the Petitioner, Mr. P. G. Sawant, learned counsel appearing for the State/Respondent Nos.1 to 3 and Mr. Drupad Patil, learned counsel appearing for Respondent Nos.6 and 11.

¶2The challenge in the present Writ Petition is to the legality and validity of order dated 27th October 2023 passed by the Collector, Pune in Grampanchayat Dispute No.111 of 2023 filed under Section 35(3-b) of the Maharashtra Village Panchayats Act (Act No.III of 1959) ("said Act"). By said impugned order dated 27th October 2023,

the Collector, Pune dismissed the said Grampanchayat dispute. In the said Grampanchayat dispute, challenge was to the legality and validity of the motion of no confidence carried in the meeting of Grampanchayat Hiware, Tal. Purandar, Dist. Pune dated 17th July 2023.

¶3It is the main contention of Mr. Kalpesh Patil, learned counsel appearing for the Petitioner that the Petitioner has not been given an opportunity to put-forth her views/explanation in respect of the allegations and charges levelled against her and therefore, the meeting in which the motion of no confidence was carried, is totally illegal. To substantiate the said contention, he relied on the decision of learned Single Judge in the case of Manoj Ghanshyamdas Banode v. Presiding Officer/Tahsildar, Dhamangaon1 .

¶4On the other hand, Mr. Drupad Patil, learned counsel appearing for Respondent Nos.6 and 11 submitted that the minutes of resolution clearly show that proper opportunity has been given to the Petitioner. He relied on the decision of learned Single Judge in the matter of Sarpanch Grampanchayat Yelvi & Anr. vs. Deputy Collector, Office of Collector, Rajwada, Sangli District Sangli & Ors.2 and more 2019 SCC OnLine Bom 85 : (2019) 2 Bom CR 249 2015 SCC OnLine Bom 913

particularly, on the paragraph 3 of the same. He also relied on the decision of Full Bench of this Court in the matter of Tatyasaheb Ramchandra Kale vs. Navnath Tukaram Kakde3 and particularly, on certain portion of paragraph Nos.19 and 20. He also relied on Section 44(3) of the said Act.

¶5Before considering the rival contentions, it is necessary to set out certain factual aspects. There are total 9 members of said Grampanchayat Hiware. About 7 members have given notice of motion of no confidence on 11th July 2023 to the Tahsildar, Purandar. Pursuant to said notice of no confidence, the Tahsildar, Purandar vide his communication dated 11th July 2023 scheduled the meeting for consideration of the said motion of no confidence on 17th July 2023. On 17th July 2023, the meeting was held and 8 out of 9 members of the said Grampanchayat voted in favour of the motion of no confidence.

¶6For appreciating the contentions of learned counsel appearing for the Petitioner, it is necessary to set out the relevant portion of the minutes of said meeting, which reads as under:- ßxzk-ia-fgojs rk-iqjanj ft-iq.ks ;sFkhy ljiap lkS ique Hkjr 2014 SCC OnLine Bom 1483 : (2014) 6 Mah LJ 804 (FB)

o 12-wp-14163-2023.doc dqnGs ;kapsfo:/n xzk-ia-lnL; Jh lkxj f'kokth dqnGs ;kauh [kkyhy eqnn;kaP;k vk/kkjs vfo'okl izLrko lHksr ekaMyk o R;kyk vuqeksnd Eg.kqu Jh jktsanz fuoRrh tk/ko ¼xzk-ia-lnL;½ ;kauh vuqeksnu fnys-1- dks.kR;kgh lnL;kauk fo'oklkr u ?ksrk xzkeiapk;rhP;k [kkR;ko:u fu/khpk viO;ogkj d:u cksxl /kukns'k dk<ys vkgsr-2- dks.kR;kgh izdkjps vtZ u djrk xzkeiapk;rhr xjS gtj jkgrkr-3- xzkelsodkl gkrk'kh /k:u pqdhps Bjko r;kj dj.ks o lghpk xSjokij d:u cksxl fcys r;kj dsyh vkgsr-4- xzkeiapk;r lnL;kauk fo'oklkr u ?ksrk o dks.kR;kgh fodkl dkekph iqoZ dYiuk lnL;kauk u nsrk fu;kekuqlkj dks.krhgh izfdz;k jkcfor ukghr-5- efgyk lHksyk tk.khoiqoZd xjS gtj jkgrkr-6- lkoZtfud okjkrhy 'kkldh; 'kkSpky;s Bjko u djrk ijLij ikMyh-7- xzkeiapk;r ekydhps isOghax CykWdph ijLij fodzh dsyh-8- vk;q";eku Hkkjr ;kstusP;k ukok[kkyh xzkeLFkkadMwu cksxl yksdkan~okjs xzkeiapk;rP;k ukos iSls xksGk dsys-ojhy eqn~n;kaP;k vuq'ka?kkus ljiap lkS-ique Hkjr dqnGs ;kauh [kkyhyizek.ks eqn~nsfugk; ;qDrhokn lknj dsyk-eqn~nk dz-1& ;kapk eqn~nk dz-1 eyk ekU; ukgh-eh dqBY;kgh izdkjpk viO;ogkj dsysyk ukgh-eqn~nk dz-2&eqn~nk dz-2 eyk ekU; ukgh-eqn~nk dz-3&eqn~nk dz-3 eyk ekU; ukgh-cksxl chys dk<ysyh ukghr-eqn~nk dz-4&eqn~nk dz-4 eyk ekU; ukgh-eqn~nk dz-5&oSn;dh; dkj.kkO;frfjDr brj osGh gtj vlrs-eqn~nk dz-6&;kfo"k;h eyk dYiuk ukgh-eqn~nk dz-7&eh vls dkghgh dsysys ukgh-eyk gk eqn~nk ekU; ukgh-eqn~nk dz-8&;kfo"k;h dk;ns'khj izfdz;k jkcfo.ksr vkysyh vkgs- ;kuarj eqacbZ xzk-ia-vf/kfu;e 1958 ps dye miz e/khy rjrqnhuqlkj ljiap vfo'okl ernkukph izfdz;k loZ mifLFkrkauk letkoqu oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo oooo 4/9

lkax.ksr vkyh-R;kuqlkj U;k-xzk-ia lnL;kauk BjkokP;k cktwus ernku djko;kps vlsy R;kauh vkiyk mtok gkr oj djkok o T;k xzk-ia lnL;kauk vfo'oklkP;k fo:n~/k er uksanok;ps vlys R;kauh vkiys nksUgh gkr [kkyh Bsokosr vls izfdz;k letfo.;kr vkyh-xzk-ia-fgojs rk-iqjanj ft-iq.ks ;sFkhy ljiap lkS-ique Hkjr dqnGs ;kaps fo:n~/k ekaMysys vfo'okl izLrkokps cktqus [kkyhy xzk-ia lnL;kauh vkiys er uksanfoys-1- Jh-jkenkl nRrk=; dqnGs 2-lkS-Hkkjrh xqykc xk;dokM 3-lkS- 'kksHkk 'kkarkjke nGoh 4-lkS-lksukyh fnid pOgk.k 5-lkS-ique lksiku dkeBs 6-Jh-jktsanz fuo`Rrh tk/ko 7-Jh-eukst v'kksd dqVs 8-Jh-lkxj f'kokth dqnGs vfo'okl izLrkokps fo:n~/k [kkyhy lnL;kauh vkiys er uksanfoys-1- lkS-ique Hkjr dqnGs xzk-ia-fgojs rk-iqjanj ft-iq.ks ;sFkhy ,dw.k ik= xzk-ia-lnL; la[;k 9 vlwu ljiap vfo'okl izLrko eatqj gks.kslkBh ,dq.k 7 ¼lkr½ lnL;kauh izLrkokps cktqus uksanfo.ks vko';d vkgs-izLrqr izdj.kke/;s ,dw.k 8 xzk-ia-lnL;kauh izLrkokps cktqus er uksanfoys vlY;kus lnjhy vfo'okl izLrko eatqj >kyk vls v/;klh vf/kdkjh ;kauh tkfgj dsys-Þ (Emphasis added)

¶7The said minutes clearly show that the Petitioner has been given opportunity to explain and put-forth her views/explanation in respect of the allegations and charges levelled against her in the

notice of motion of no confidence.

¶8Mr. Kalpesh Patil, learned counsel appearing for the Petitioner has relied on paragraph No.16 of the decision of Manoj Ghanshyamdas Banode (supra) which reads as under:- "16. Applying the aforesaid position of law to the facts of the present case, it would be necessary to consider the minutes of the meeting dated 05.12.2016 written by the respondent no. 1 Tahsildar/Presiding Officer. A perusal of the said minutes of the meeting dated 05.12.2016 show that the respondent no. 1 has recorded the charges levelled against the petitioner in the notice for motion of no confidence. Thereafter, presence of 17 members of the Gram Panchayat is noted. Thereafter, it is held that the voting would be conducted by show of hands and after that the respondent no. 1 has stated the words "discussion was held on no confidence motion". It is then recorded that 12 members voted in favour of the no confidence motion by raising their hands and 5 members, including the petitioner, voted against the no confidence motion. Thus, other than the aforesaid words i.e. "discussion was held on no confidence motion", it is not recorded at all as to in what manner the petitioner was given an opportunity to make his statement to put forth his views/explanation in respect of the allegations and charges levelled against him in the notice for motion

of no confidence before the House and the members of the Gram Panchayat. There is nothing in the said minutes of the meeting to show that the petitioner was heard by the members of the Gram Panchayat before voting was conducted on the motion of no confidence. This clearly violates the mandate of the law as laid down in the above quoted judgments of this Court." (Emphasis added) However, perusal of the minutes of the meeting show that opportunity is given to the Petitioner and she has put-forth her views/ explanation before the meeting. Thus, the observations in Manoj Ghanshyamdas Banode (supra) are not applicable to the present case.

¶9On this aspect, learned counsel appearing for the Respondent Nos.6 and 11 has relied on paragraph No.3 of Sarpanch Grampanchayat Yelvi & Anr. (supra). Said paragraph No.3 reads as under:-

¶3The Learned Counsel appearing on behalf of the Petitioners would contend that the proceedings of the meeting were vitiated on the ground that the Petitioners were not allowed to address the meeting, though a specific request was made and secondly, that the request of the Petitioners for a secret ballot was not acceded to. In so far as the first contention is concerned, as indicated above the factum of the Petitioners giving their explanation in respect of the charges levelled against them is recorded in the minutes. It is also an undisputed

position that the Petitioners have attended the meeting. Hence, there is no merit in the contention urged on behalf of the Petitioners that they were not allowed to address the meeting. In so far as the second contention is concerned, it is not incumbent on the Presiding Officer to adopt the procedure of secret ballot as there is no mandate cast by any statutory provision that the voting should be only by secret ballot and not by show of hands. As indicated above the resolution was passed by a majority of 7 : 2, in my view the Petitioners have to respect the will of the house which is against them. Hence, no case for interference in the Writ Jurisdiction of this Court is made out. The Writ Petition is accordingly dismissed." The discussion in said paragraph No.3 is squarely applicable to the present case.

¶10Mr. Drupad Patil, learned counsel appearing for Respondent Nos.6 and 11 has also relied on the decision of Tatyasaheb Ramchandra Kale (supra) and particularly, on paragraph Nos.19 and 21, relevant portion of which reads as under:- "19. ….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 Bombay Village Panchayats 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 Bombay Village Panchayats Act, the resolution cannot be said to be vitiated on account of any infirmity in the proceedings.

¶21Finally 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 Bombay Village Panchayats 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 Bombay Village Panchayats 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."

¶11Thus, it is clear that in the present case, motion of no confidence is carried out by an overwhelming majority. 8 out of 9 members have voted in favour of the motion of no confidence. Therefore, there is no substance in the contentions raised by learned counsel appearing for the Petitioner.

¶12Therefore, in this case no interference of this Court under Article 227 of the Constitution of India is warranted. The Writ Petition is dismissed with no order as to costs. [MADHAV J. JAMDAR, J.]

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.14163 OF 2023 Smt. Poonam Bharat Kudale ...Petitioner Versus The State of Maharashtra & Ors. ...Respondents Mr. Kalpesh Patil i/b. Mr. Pratik Deshmukh and Mr. Nandan Gavali, for the Petitioner. Mr. P. G. Sawant, AGP, for the State/Respondent Nos.1 to 3. Mr. Drupad S. Patil a/w. Mr. Namitkumar S. Pansare, for Respondent Nos. 6 and 11. CORAM : MADHAV J. JAMDAR, J. DATED : 9th NOVEMBER 2023