Case Note & Summary
Background: The writ petitions were filed by members of Gram Panchayat of Digras (Kh) challenging the order of the Divisional Commissioner, Aurangabad dated 23-12-2011. The dispute arose from a no-confidence motion moved against the Sarpanch and Up-Sarpanch. Facts: The petitioners issued a common requisition notice under Rule 2(1) of the Bombay Village Panchayats Sarpanch and Up-Sarpanch (No Confidence Motion) Rules, 1975, for moving no-confidence against both the Sarpanch and Up-Sarpanch. The Tahsildar accepted the notice and convened a meeting, where the resolution was passed. Respondent Nos. 4 and 5, the Sarpanch and Up-Sarpanch, appealed to the Divisional Commissioner, who held the common notice illegal and set aside the resolution. Aggrieved, the petitioners approached the High Court. Legal Issues: The primary issue was whether Rule 2(1) of the 1975 Rules is mandatory or directory, and whether a common notice for both offices is valid. Arguments: The petitioners contended that the rule is directory, relying on Shivaji Digambar Kapse v. State of Maharashtra and K. Narasimhiah v. H.C. Singri Gowda. The respondents argued that the rule is mandatory and the common notice caused prejudice, citing Budhiya Dayaram Jamunkar v. Additional Commissioner and Chandrakala v. Kathalu. Court's Analysis: The court refused to re-examine the rule, noting that a coordinate bench in Budhiya Dayaram Jamunkar and a Division Bench in Chandrakala had already declared it mandatory. On facts, the court found that the common notice contained generalized allegations, causing prejudice to the office-bearers by preventing them from knowing specific charges against each. The court emphasized that grounds must be specific and particular. It deprecated the petitioners’ counsel for citing irrelevant precedents and wasting court time. Decision: Both writ petitions were dismissed with costs.
Headnote
A) No-Confidence Motion - Requirement of Separate Notices - Rule 2(1) of Bombay Village Panchayats Sarpanch and Up-Sarpanch (No Confidence Motion) Rules, 1975 - The Rule explicitly requires two separate notices when moving no-confidence against both Sarpanch and Up-Sarpanch; a common notice is illegal and renders the resolution void (Paras 2-5).
B) Service Law - Prejudice Due to Defective Notice - Rule 2(1) of Bombay Village Panchayats Sarpanch and Up-Sarpanch (No Confidence Motion) Rules, 1975 - A common notice with generalized allegations causes prejudice to the office-bearers as they cannot effectively respond; grounds must be specific and particular to each individual (Paras 6-7).
C) Precedent - Binding Effect - Decisions in Budhiya Dayaram Jamunkar v. Additional Commissioner (2010(3) Bom.C.R. 725) and Chandrakala v. Kathalu (2009(1) All MR 758) holding Rule mandatory are binding; reliance on irrelevant precedents by petitioners' counsel deprecated (Paras 5, 7-8).
Issue of Consideration
Whether Rule 2(1) of the Bombay Village Panchayats Sarpanch and Up-Sarpanch (No Confidence Motion) Rules, 1975 is directory or mandatory.
Final Decision
Both writ petitions are dismissed with costs.
Law Points
- Rule 2(1) of Bombay Village Panchayats Sarpanch and Up-Sarpanch (No Confidence Motion) Rules
- 1975 is mandatory
- giving two separate notices for no-confidence motion against Sarpanch and Up-Sarpanch necessary
- common notice causes prejudice
- grounds in notice must be specific and particular
Case Details
2012 LawText (BOM) (08) 7
WRIT PETITION NO. 617 OF 2012 with WRIT PETITION NO. 661 OF 2012
Shri B.A. Shinde for petitioners, Shri K.J. Ghate Patil AGP for respondent Nos. 1 to 3/State, Shri M.P. Tripathi for respondent Nos. 4 & 5
Shamsundar s/o Namdeo Barsale and others
The Divisional Commissioner, Aurangabad and others
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Nature of Litigation
Writ petition under Article 226 of Constitution of India challenging order of Divisional Commissioner setting aside resolution of no-confidence motion against Sarpanch and Up-Sarpanch of Gram Panchayat.
Remedy Sought
Petitioners sought quashing of the Divisional Commissioner's order dated 23-12-2011 and restoration of the no-confidence motion resolution.
Filing Reason
The Divisional Commissioner had allowed the appeal of respondent Nos. 4 and 5 and set aside the resolution on the ground that a common notice for no-confidence against both Sarpanch and Up-Sarpanch was illegal under Rule 2(1) of the 1975 Rules.
Previous Decisions
The Divisional Commissioner, Aurangabad in Appeal/CR/115/2011 by order dated 23-12-2011 held that the common requisition notice was illegal and set aside the resolution of no-confidence motion.
Issues
Whether Rule 2(1) of the Bombay Village Panchayats Sarpanch and Up-Sarpanch (No Confidence Motion) Rules, 1975 is mandatory or directory.
Whether a common notice for moving no-confidence against both Sarpanch and Up-Sarpanch is valid.
Submissions/Arguments
Petitioners argued that Rule 2(1) is directory and a joint notice is permissible, relying on Shivaji Digambar Kapse v. State of Maharashtra and K. Narasimhiah v. H.C. Singri Gowda.
Respondents contended that the Rule is mandatory and the common notice caused prejudice, as held in Budhiya Dayaram Jamunkar v. Additional Commissioner and Chandrakala v. Kathalu.
Ratio Decidendi
Rule 2(1) of the Bombay Village Panchayats Sarpanch and Up-Sarpanch (No Confidence Motion) Rules, 1975 is mandatory. A common notice for no-confidence motion against both Sarpanch and Up-Sarpanch is illegal and causes prejudice to the office-bearers, rendering the resolution void. The grounds in the notice must be specific and particular to enable the affected party to respond effectively.
Judgment Excerpts
Rule 2 of said Rules reads as under: 2. (1) The members of a panchayat who desire to more a motion of noconfidence against the Sarpanch or the UpaSarpanch shall give 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 noconfidence against the Sarpanch as well as the UpaSarpanch, they shall give two separate notices.
The only point that the learned counsel for the petitioners raised is that Rule 2 (1) of the Bombay Village Panchayats Sarpanch and UpSarpanch (No Confidence Motion) Rules, 1975, is directory and not mandatory.
I am, however, not inclined to undertake such examination of the Rule, because this Court in the case of Budhiya Dayaram Jamunkar v. Additional Commissioner and others (2010(3) Bom.C.R. 725) very clearly held that the Rule is mandatory, and giving of two separate notices is necessary.
Even in this case, on facts, it can certainly be said that the respondents are prejudicially affected because of the common notice. ... the nature of allegations and the joinder of them is not only incorrect, but it militates against the purpose of the notice and need to mention the grounds.
The Division Bench ... clearly held that the Rule is mandatory. The Division Bench in paragraph No. 10 of judgment observed as under: ... In our opinion, this will not result in holding that the meeting called for holding the motion of noconfidence and subsequent procedure of calling the meeting would be null and void.
Both petitions should therefore fail. Both the writ petitions are dismissed with cost.
Procedural History
Petitioners, as members of Gram Panchayat, issued a common requisition notice for moving no-confidence motion against the Sarpanch and Up-Sarpanch. The Tahsildar convened a meeting and the resolution was passed. Respondent Nos. 4 and 5 (Sarpanch and Up-Sarpanch) filed Appeal/CR/115/2011 before the Divisional Commissioner, Aurangabad. The Divisional Commissioner by order dated 23rd December, 2011 allowed the appeal, holding the common notice illegal under Rule 2(1) of the Bombay Village Panchayats Sarpanch and Up-Sarpanch (No Confidence Motion) Rules, 1975, and set aside the resolution. Aggrieved, the petitioners filed two writ petitions before the High Court. The High Court heard both together and dismissed them with costs on 27th August, 2012.
Acts & Sections
- Bombay Village Panchayats Sarpanch and Up-Sarpanch (No Confidence Motion) Rules, 1975: Rule 2
