BUDHIYA DAYARAM JAMUNKAR Vs. ADDITIONAL COMMISSIONER

JUDGEMENT

(1.) Rule. Rule made returnable forthwith. The petition is heard finally with the consent of the learned Cousnel for the parties.

(2.) The short question involved in the writ petition pertains to the legality or otherwise of the No Confidence Motion passed against the Sarpanch of the Village Panchayat when two separate notices were not issued in terms of Rule 2(1) of the Bombay Village Panchayat Sarpanch and Up-Sarpanch (Motion of No Confidence) Rules, 1975, though the members desired to move the motion of No Confidence against both, the petitioner-Sarpanch and also the Up-Sarpanch. The petitioner has raised several challenges to the No Confidence Motion but, the main challenge to the legality of the No Confidence Motion relates to the applicability of the provisions of Rule 2(1) of the Rules of 1975. It is the case of the petitioner that the members of the Panchayat desired to move a Motion of No Confidence against the petitioner- Sarpanch and also the Up-Sarpanch but, a common notice was given by the members of the Oram Panchayat to the Tahsildar at Chikhaldara on 29.9.2008. It was not clear from the notice as to what allegations were levelled independently against the Sarpanch and the Up-Sarpanch, though the notice given by the members of the Village Panchayat to the Tahsildarvaguely stated five reasons for their removal. According to the petitioner, the said notice given by the members of the Gram Panchayat to the Tahsildar was bad in law, in view of the provisions of Rule 2(1) of the Rules of 1975, which necessitated the giving of two separate notices in a case where the members desired to move the Motion of No Confidence against the Sarpanch and the Up-Sarpanch.

(3.) I had called for the Original record. On a perusal of the same, it is clear that though the members of the Village Panchayat desired to move a Motion of No Confidence against both, the Sarpanch and the Up-Sarpanch, they did not give two separate notices to the Tahsildar. Only five reasons were vaguely stated in the notice given by the members of the Panchayat to the Tahsildar on 29.9.2008. Or. a perusal of the notice dated 29.9.2008, it appears that the reasons stated in the notice are extremely vague and do not show whether they relate to the removal of the Sarpanch or the Up-Sarpanch The allegations are non-specific in nature. Giving of two separate notices was necessary in such a case, as the Sarpanch and the Up Sarpanch ought to have known the charges or the allegations levelled against them by the members of the Panchayat. It is obvious from a perusal of the notice that the non-compliance of Rule 2(1) of the Rules of 1975 caused serious prejudice to the petitioner, as the petitioner was unable to gauge from the notice dated 29.9.2008 as to which reasons were attributed for his removal. The object of giving two separate notices in case of moving a no-confidence motion against both, the Sarpanch and the Up-Sarpanch is to make each of them aware of the separate grounds for their removal and to provide them an opportunity to address the members of the panchayat in regard to the same. In the instant case, neither two separate notices were given to the Tahsildar nor were the grounds for removal of the Sarpanch and the Up-Sarpanch separately mentioned in the single notice. Moreover, the grounds were non-specific and vague and this clearly caused prejudice to the petitioner. The judgment reported in (K. Narasimhiah Vs. H.C. Singri Gowda)1, 1964 DGLS (soft) 116 : A.I.R. 1966 S.C. 330. and relied on by the learned Assistant Government Pleader does not support the case of the respondent-State as the Hon'ble Supreme Court has observed in the aforesaid judgment that the resolution passed against the Councillors would be invalid only if the proceedings were prejudicially affected by any irregularity. In the instant case, the petitioner was prejudicially affected by the non-compliance of Rule 2(1) of the Rules of 1975, and hence, the aforesaid judgment cannot be made applicable to the facts of this case. So also, the judgment reported in (Durgadas Ukhaji More & others Vs. Additional Commissioner, Nasik Division & others)2, 2002(Supp. 2) Bom.C.R. 755(A.B.): 2003(1) Mh.L.J. 420. would also not be of any assistance to the case of the respondent-State, as in the reported decision, there was no substantial non-compliance, as the notice was given, the verification was also typed but there was a minor typing error. In such circumstances, this Court observed that the Sarpanch should have gracefully walked out as the resolution was passed against him by 2 / 3rd majority. In the instant case, there was non-compliance of Rule 2(1) of the Rules of 1975which, in the given set of facts, prejudicially affected the petitioner and, hence, the reported judgment cannot be made applicable to the facts of this case.