Skip to content


Vishwarasaro Dajibarao Ghuge Vs. Vallabhdas Sheonarayan Sharam and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 699 of 1964
Judge
Reported inAIR1966Bom149; (1965)67BOMLR708; ILR1966Bom268; 1966MhLJ57
ActsPanchayats Maharastra Zilla Parshads and Panchayat Samitis Act, 1962 - Sections 57 and 72(7)
AppellantVishwarasaro Dajibarao Ghuge
RespondentVallabhdas Sheonarayan Sharam and ors.
Appellant AdvocateV.R. Manohar, Adv.
Respondent AdvocateS.N. Kherde Kar, ;S.G. Kukday, ;S.V. Natu, ;V.M. Kulkarni and ;S.S. Deshpande, Advs.
Excerpt:
.....parishad and panchayat samitis act (mah. v of 1962), sections 72(7), 57, 111(6),(7), 61, 39, 42 - 'total number of members of the panchayat samiti,' meaning of expression--whether means total number of members actually present and voting at meeting of panchayat samiti.;in section 72(7) of the maharashtra zilla parishad and panchayat samitis act, 1961, the expression 'the total number of members of the panchayat samiti' refers to the total number of the possible members of the panchayat samiti under section 57(1) of the act and not the total number of members present and voting at any meeting thereof. - - they had made the first attempt and when the that attempt failed made the present attempt to pass no -confidence motion. 57 if the gone through the total number of the members of the..........say that having regard to the provisions of s. 72 (7) the law only requires a majority of the total number only members actually present at the meeting on 1-11-1964. if the latter view were to prevail then the no - confidence motion must be held to be valid because there were no that date only eleven members present view were to prevail the total possible membership of this samiti was 14, and so for obtaining a majority at least 8 votes, were necessary which was not the case. there fore the no = confidence motion will have to declared invalid.(4) sub - section (7) of s. 72 of the act runs as under:'if the motion is carried by the majority of the total number of member of the panchayat samiti [other than associate members], the chairman or as the case may be, the deputy chairman of.....
Judgment:

Kotval, J.

(1) We care concerned in this special civil application with a motion of no -confidence alleged to have been passed against the petitioner Vishwasrao Dajibarao Ghuge who was the Chairman on the Panchayat Samiti, Malegaon Taluq Washim, district Akola. The panchayat Samiti Malegaon, it isn't in dispute consist of 14 members and 2 associate members under S. 57 of the Maharashtra Zilla Parishad and panchayat Samitis Act, 1961 [No V of 1962] [hereinafter referred to as the Act] The petitioners was elected Chairman of the panchayat Samiti on 7-8-1962, and less than two years thereafter on 11-5-1964 a no - confidence motion was attempted to be oven against him, but that motion was for reason unknown withdrawn on 22-5-1964. Theater a fresh notice is no - confidence motion under S. 72 of the Act on was again given on 24-10-1964 by the present respondents Nos. 1 to 6 and 13. A meeting was convened by the petitioners for 1-11-1964. At that meeting according to the respondents Nos 1 to 6 and 13, the no - confidence motion was validly passed.

(2) The petitioner says that there were rival factions in the Panchayat samiti since a considerable time and that the respondents Nos 1 to 6 were in minority and therefore wanted the oust the petitioner. They had made the first attempt and when the that attempt failed made the present attempt to pass no - confidence motion. According to the petitioner, the resolution has not been validly passed. The total possible membership of this panchayat samiti is 14 [the two associate members not being entitled to vote under S. 57 (1) (c) and (d) read with S. 72 (7). The no - confidences motion could not on have bee passed if eight members out of total of 14 had voted for there solution. But in the present case, the person who voted for the resolution were only 6 and therefore the resolution was not legally passed. It was also stated by the petitioner that the respondents Nos 11, 12 and 13 were initially members of the panchayat samiti by virtue of he fact that the were Sarpancha elected in by the members oft Gram Panchayats in accordance's with the provisions of S. 57 (2) of the Act. Their term of officer having expired, they were re - elected by the respective Gram panchayats prior to the date of the meeting i.e. 1-11-1964 The dates of election and the villages from which they were re = elected as stated by the petitioner in paragraph 5 are as follows:

Name of the Farm Panchayat Date of ElectionRespondent No. 11 Borgaon 12-9-1964Respondent No. 12 Hairaldoh 8-9-1964Respondent No. 13 Shelgaon Bondade 18-10-1964

According to the petitioner, these persons being re - elected Sarpancha were entitled to vote, but they were not given due notice of the meeting to be held on 1-11-1964 and therefore the entire proceedings of the meetings as we ll. as the no-confidence motion passed in the meeting are vitiated.

(3) Now, it will be seen that so far as the petitioner is concerned, he is referring to the electorate for this purpose as the total possible membership of samiti as prescribed by S. 57 of the Act but the respondents say that having regard to the provisions of S. 72 (7) the law only requires a majority of the total number only members actually present at the meeting on 1-11-1964. If the latter view were to prevail then the no - confidence motion must be held to be valid because there were no that date only eleven members present view were to prevail the total possible membership of this samiti was 14, and so for obtaining a majority at least 8 votes, were necessary which was not the case. There fore the no = confidence motion will have to declared invalid.

(4) Sub - section (7) of S. 72 of the act runs as under:

'If the motion is carried by the majority of the total number of member of the panchayat Samiti [other than associate members], the chairman or as the case may be, the deputy chairman of the Panchayat Samiti shell cease to hold officer forthwith an the office held by such chairman or Deputy Chairman shall de deemed to be vacant.'

The contention on behalf of the respondent is that when the sub - section speaks of 'a majority of the total number of members of the Panchayat Samiti' it means the total number of the members actually present and voting at he meeting of panchayat samiti, and in the present case they were 11. Therefore, the resolution must be deemed to be passed., because 6 members were in favor of it. On behalf of the petitioners it is urged that the expression 'a majority of the total number of the member of panchayat samiti' has reference of S. 57 which lays down the constitution of total number of members of this panchayat samiti was 14. The 2 associate by S. 57 read with S. 72 (7) they have no rights of vote. This is the principal point which arises for decision on this petition. That is gives rise to the question what its mentioned of the words 'a majority of the total number of member of the panchayat samiti in sub - section (7) of S. 72 of the Act.

(5) It was also argued on behalf of the respondents that on the date of the meeting namely 1-11-1964 the panchayat Samiti itself conceited of 11 member because the three Sarpancha ,respondent Nos 11, 12 and 13 were not entitled to sit in the samiti because though they had been elected as Sarpancha of their respective gram panchayat above, still they had not been elected as members of this panchyat samiti under S. 57 (1) (f). It was also therefore contended that they were was no entitled to notice and the legality was committed when on notice o the meeting was served on them. It will be notices that the latter point ca only rise if the contention of the respondents upon the first point is upheld that be the use of the words 'a majority of the total number of members of the panchayat samiti' in sub - section (7) of S. 72 is implied the actual meeting panchayat samiti and voting or the actual number of members entitled to the sit as contention of the petitioner is accepted they by the expression is implied the total number of possible members of the panchayat samiti as contemplated by S., 57. We therefore turn of consider this point.

(6) Now, first it is necessary to consider the language of sub - section (7) of S. 72 itself, and we notice that the expression used is not 'a majority of the panchayat samiti but 'a majority of the total number of member of the panchayat samiti'. If the respondents contention be correct, that it was intended to imply by this expression the member of the panchayat samiti who were into entailed to the sit as members of the samiti, then the Persian 'a majority of the member of the Panchayat samiti' would've sufficed and it would not have been necessary for the legislature to say 'a majority of the total number of member of the panchayat samiti' what then was intended by the legislature when it used the expression 'a majority of the total number of member of panchayat samiti? Why was of the word 'total' used and what is the 'total number'?

(7) In order to determine what is that connection of this expression, we turn to the provision of S. 57 of the Act, which deals with the constitution of Panchayat Samitis sub section (1) of the section deals wit six categories of members of which the panchayat samiti is to consist. The sub - section begins with the words 'Every panchayat samiti shall consist of' an then enumerates the categories as follows:

'(A) all councilors who are elected to the Zilla parishad from the electoral divisions included in the Block.

(B) The co - opted councilor, [if any] residing in the block.

(C) the chairman of such co - operative society conducting the business of purchase and sale of agricultural products of in the Block as the state government may be order specify in this behalf [to be an associate member]

XX XX XX XX XX (The proviso is not necessary for out purposes.)

(D) the chairman of a co - operative society conducting business relating to agriculture [not being a society falling under clauses [c] intake block co - opted by the panchayat samiti [to be an associate member]

(E) [I] if the members of panchayat samiti falling under clause (a) and (f) do not include a woman one woman residing in the Block co - opted by the Panchayat Samiti.

(Ii) if the members of the panchayat samiti falling under clauses (a) and (f) of such Block as the state Government of may specify in this behalf do not include a person belonging to the schedule casts or scheduled Tribes a members co - opted by the panchayat samiti being a member of the scheduled casts or scheduled members of the tribes as the case may be from amongst of person residing in the Block.

(The proviso is unnecessary for the purposes of the point before us)

(f) Sarpancha elected by members of panchayat in the accordance's with the provisions of sub -section (2)'

It will thus be seen that barring the members contemplated in clauses (e) the number of be fixed having regard to the provisions of S. 57 and so afar as the member coming under Clauses (e) are concerned, their number would also be fixed after the elections. Their number would depended of upon whether a woman or a member of the schedule casts or scheduled Tribes was elected was from among then member of the categories (a) to (d), ten a woman and /or a member of the scheduled castes or scheduled Tribes, as the case may be, will have to be co-opted by virtue of the clause (e). In any case after the whole procedure under S. 57 if the gone through the total number of the members of the Panchayat Samiti number as well as the number and member actually sitting when would be known and it seems to and that when the panchayat samiti. Was used in sub - section (7) of S. 72, it was obviously intended to refer to the total number of the possible members of the Panchayat samiti and under sub section (1) of s. 57 and not the members actually entitled to sit. In the instant case it is not in dispute that the total number of members of would be 14 leaving out of the account the 2 associate members.

(8) A Consideration of the other provisions of S. 72 itself as well as the act leads to the same conclusion of sub - section (1) of S. 72 deals with the tabling of the no - confidences motion and it says.

'A motion of no - confidences in the Chairman or Deputy Chairman of a panchayat samiti may be made by a requisition from not less than one - fourth of the total number of members (other than associate members) after the giving notice thereof......'

Here again therefore the expression is used 'one - fourth of the total with number of the members' in connection with panchayat samiti. Now, if he the contention of the respondents were to prevail that the meaning of these expressions 'total number of the members of panchayat samiti' in sub - section (1) and (7) of S. 72 means total numbers of members of actually present and voting then two other provisions of the Act negative that contention. If one turns to sub section (6) of S,. 111, one finds the same expression used. Section 111 deals with meetings of Zilla parishad and the finds virtue of S. 118 therefore the same provisions apply in relation to meeting of panchayat samiti with the modification of that the words 'Panchayat Samiti' shall be read instead of the words 'Zilla partishad' and with other modifications mautatismutandis as indicated in S. 118. The provisions of S. 111 therefore directly apply to the panchayat samitis by virtue of S. 118 Now dealing wit the question of meetings of panchayat samitis sub - (6) of s. 111 says:

'All questions shall b decided b ya majority of votes of the councilors present and voting, the presiding authority having a second or casting vote in all cases of equality of votes'. This provision of would govern all meetings of the panchayat samiti other than meetings of the a special provisions is made in the Act, such as a meeting as which a no - confidences motion is the be moved, but the languages of the sub - sections is sharp contrast with the languages used in sub section (7) of s. 72. Where a no - confidences motion is contemplated by this act it is to be carried by the 'a majority of the total number of members of panchayat samiti' whereas when normal resolutions are to be passed at the meetings of panchayats samitir. Sub s (6) of S.111 prescribes 'a majorities of votes of the councilors present and voting'. The provisions of S. 111 (6) show that the legislature and itself made a distinction between the total number of members of panchayat samiti and members present and voting'. In that view, it is clear that the expression of used n sub section (7) of S. 72 cannot be held to carry to the meaning of 'the total number of the members of panchayat samiti present and voting' when it says ' to total number of members of the panchayat samiti.'

(9) Another provision of the Act which gives a similar indication of is S. 61. That sections deals with the removal of the members of the panchayat samiti for misconduct. The section has recently been amended by the Maharashtra act No. 43 of the 1962. Prior to amendment of the section prescribed.

'The State Government of may if thinks fit on the recommendation of two - thirds of the members of the panchayat samiti present of and voting remove any member thereof.....'

The section has been amended and for the word 'Two thirds of the member of the panchayat samiti' the words 'the panchayat samiti supported by not less than two thirds of the number of members' have been substituted. The words 'present and voting' how ever remain. Here again two things are patent. Firstly the expression 'the members of the panchayat samiti present and voting' of shows again that where the Legislature of intended to a refer to the members actually present it clearly said so. Therefore, it must be held that the expression 'the total number of members of the panchayat Samiti' in S. 72 (7) cannot mean the total number of members makes distinction between members of makes distances panchayat samiti itself, and the amendment shows that the 'recommendation must be that of two - thirds of the member the panchaya samits present of and voting. But the expression 'total number of members' which is to be found in sub - section (7) of S. 72 in not used here. therefore there is a clear distinction of the drawn of the statute itself between the members of the panchayat samiti and the total number of members of the panchayat samiti. This words 'total'. So far was we can see is not to be found in any other provisions of the Act except S. 111 (7) of dealing with voting. In our opinion, the real reason why it was used in sub - section (7) of the S. 72 was because of it was intended to convey thereby the totality of the possible members of the panchayat samiti having regard to its constitution under S. 57 of the Act [excluding of the course the associate members who are expressly excluded) and not the number of the members of who were presented and voting at any meeting thereof.

(10) Next, we find that in sub - section (7) and S. 111 the words 'total' comes to be used and the manner of the its use of in that sub =section an the context in which it is used clearly indicate the intention of the draftsman. Sub section (7) of S. 111 beings with the words.

'If less then one third of the total number councilors be present at a meeting at any time from the beginning to the end therefore, the presiding authority shall adjourn the meetings to the such hour on the following or some other future date as he may reasonably fix...........'

The sub - section fixes a quorum for the meetings of the Zilla parishad and the panchayat samiti (when read with s. 118), and obviously if a quorum is to be prescribed it is usually the minimum number of he total possible the membership of the body and that is precisely what sub = section (7) of S. 111 prescribed. If says that the quorum shall be 'one - third of the total number of councilors' of those 'present at a meeting at any time from the beginning to the end thereof' Therefore, sub section (7) deal with two ides 'Councilors actually present to total number councilors and it say that those who are actually present at meeting be not below 'one third of the total number councilors. In this context and use as it is an contra distinction with the councilors number Zilla parishad or possible members of panchayat samiti having regard to S. 57. But the use of the word 'total ' before the word 'number' the draftsman therefore clearly intended to refer to the totality of the possible membership of the zilla parishad or possible membership of Zilla Parishad and or panchayat samiti and that is the same expression which he has also used in sub section (7) of S. 72. Not merely is the similarity of the expression of in the two sections S. 72 (7) of and S. 111 (7) telling but the contrast with the other expressions such as 'councilors present and voting' in S. 61 and S. 111 (6) is telling. Similarly the provisions of S. 39 which provides for removal of councilors for misconduct of or disgraceful conducts etc.., speaks of the 'not less than two - thirds of the number of the councilors present and voting'.

(11) It is clear from these provisions of the Act a that where the legislature had in contemplation of the number of the members actually present at meeting the expression of has been used 'Councilors or members present and voting' but on such expression of is to be found in sub - section (7) of S. 72. Therefore that is no indication that by the use of the words 'the total number of members of the panchayat samiti in sub section (7) of S. 72, the members of actually present at a meeting or voting at a meeting were contemplated. Secondly, the use of the expression 'the total numbers of members' in contrast with the mere use of the words 'the number of councilors or members' it other provisions if telling. By the use of the words 'total' the draftsman has always implied to the totality of the possible members of the panchayat samiti or the Zilla parishad or in other words 'total' he does not have regard to the actual number of the members or councilors present,. Thus, the internal indications furnished by the provisions of the Act show that the contention raised on behalf of the petitioner is correct and the interpretation sought to be placed on those words of sub section (7) of S. 72 on behalf of the respondents cannot be sustained.

(12) Reference was mad by Mr. Kherdekar to S .112 of the Zilla parishad and Panchayat samitis Act. Sub - section (1) of the s. 112 says that the during any vacancy in a Zilla parishad.,the continuing councilors may act as if no vacancy councils may occurred and sub section (2) says that the Zilla parishad shall have power to act to the notwithstanding any vacancy in the councillorship and also provides that the notwithstanding any defect in the constitution the power to act remains. Read along with the S. 118, thinks shows that the Panchayat Samiti frequently has its membership fluctuating and that is total numbers of members may never be known. We are not able to the accept this contention, because in the total number of member of panchayat samiti. All that it provides for its that the acts things done at meetings of he panchayat samiti should not be invalidated because some person should who are a defect in the proceedings or that there was a defect n the constitution. It is the usual provisions made to safeguard deliberations the public bodies consisting a of many members of the where due to an inadvertent error in it's 57 and as we that the have already indicated, upon an analysis of that section action after the entire process contemplated by that section, for bringing into existence of panchayat constitution or the inadvertent taking part of y person not qualified to do so may have the effect of vitiating the entire proceedings. The section which really deal with the constitution of the which really deals with the constitution of the panchayat samiti is S. samiti is complete , the total number of members of samiti must get fixed even having regard to clause (e) of the sub - section (1) thereof. Section 112 does not therefore assist in the interpretation of sub - section (7) of S. 72.

(13) It was next argued by Mr. Kherdekar that the words 'total' must be regarded to as mere splurged or included in with a view to additional emphasis and nothing more. The arguments would have some force in it if the expression 'the total number of member' had been uniformly used throughout the act wherever is was intended to indicate the number of member present and voting at a meeting or entitled to sit for the time being in a panchayat samiti. But we have shown that is other provisions of this berry act, whenever it was intended to refer to person actually present and voting the legislative draft man has used appropriate expressions of such as the member of present and voting.' This contention therefore also fails.

(14) A considerable part of the arguments was directed to the objects of and purpose of the legislation of which it was said ought to influence our interpretation. The interpretation which we are inclined to accept appears to thus to be consistent with the object behind the to legislation, so far as it can be gathered from this provision. The provisions for the moving of no - confidence motions against the chairman and deputy chairman of the Zilla parishad and Panchyat samiti are so far was we are ware, somewhat unique in legislation, on local self Government and the legislature, it appears thought that the extraordinary rights given to the members of these bodies to throw out the chairman or the sarpanch should be exercised carefully and only in extreme cases and so its appears the law deliberately imposed and more stringent the law limitations imposed for decisions or other subjects. That is why also originally a bare majority was sufficient, but now by the amending Act No. 43 of 1964 what is required is as two -thirds majority of the total number of the members of body concerned. For the same reason it appears that the simple majority contemplated in the section as if the originally stood was deliberately limited not to the members present and voting at meeting but to the total samiti, that is to say the total membership of the panchayat samiti that is to say the total membership of the panchayat samiti. The principle is under stand having regard to the extraordinary nature of he rights granted by S. 72 o the other members. On the other hand the construction canvassed on behalf of the respondents may result in the grave by S. 72 to the other members. On the other hands, the construction canvassed on behalf of the respondents my result in grave abuse of the this rights and bring about deadlock. The provisions of sub - section (1), (2) and (3) indicate that the after the notices of no - confidence the requisition must be signed by the less than one fourth of the total number of members. Now , if one turns to the S .57 and glances through the various categories of members, it is clear that some of the members could go out of officer and be replaced during the life a samiti thus adding to the membership of he samiti this and enlarging the number of person who could be actually present and vote at the meeting where there no - confidences motion is to be respondents seek to put upon sub - section (7) of S. 72, were to be accepted there may be conceivable case where to be accepted become sitting members of the panchayat samiti after the notice of no - confidences is given as for example under S. 57 (1) [f] in that event, the question would arise whether no confidence motion is sponsored by one fourth of the total number of member. Thus, on the date on which in was given he requisition of though valid would be rendered invalid before the meeting to be called ten days after such state of affairs could not have been in the contemplation of the legislature and indeed that is why to law expressly mentions of the total number of members of the panchayat samiti that is no say the totality of the possible members of comprising the samiti and not the actual members for the time being. That total members is always a fixed membership before each meetings.

(15)Upon the view of are we have taken it is clear that in the instant case the respondents had 6 votes in favour of the no - confidences motion and the total number of members of the panchayat samiti. The majority having regard to the facts here that the panchayat samiti was constituted of 14 members would be 8. In the result, therefore the no - confidences majority and the facts here that the panchayat samit constituted of 14 member s would motion which is said have been carried must be set aside as invalidity passed.

(16) In the view of we have taken it is not necessary to discuss to the other point arising in this petition as to whether the respondents Nos 11 12 and 13 were members of the samiti. In our view the number of the members of actually sitting in the samiti on particular of S. 72 in concerned so far as the sub - section (7) of S. 72 is concerned but the only respondents criterion is the totality the possible membership of the samiti. The question whether the respondents Nos 11, 12 and 13 were members therefore does not arise.

(17) In the result, the rule is made absolute and the motion of no - confidence passed on 1-11-1964 against the petitioners is quashed the respondents Nos 1 to 6 shall the cost s of the petitioner.

(18) Leave to appeal to the supreme court refused.

(19) Petition allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //