Bombay High Court
Charushila Bira Shriram vs The State Of Maharashtra Through The … on 3 January, 2025
2025:BHC-AS:121
WP-9981-2024.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Digitally
signed by
TALLE
TALLE SHUBHAM
SHUBHAM ASHOKRAO WRIT PETITION NO. 9981 OF 2024
ASHOKRAO Date:
2025.01.03
18:08:41
+0530
Charushila Bira Shriram ]
Age : 30 years, Occ- Homemaker ]
Residing at Bhavdi, Tal-Haveli, ]
District Pune. ] ...Petitioner.
Versus
1. The State of Maharashtra ]
Through the District Collector, Pune ]
District, Collector Office, Pune. ]
2. The Tahsildar Haveli, Haveli, Pune ]
3. Gram Sevak, Grampanchayat Bhavdi, Tal ]
- Haveli, District - Pune. ]
4. Bapu Chandrakant Handgar ]
Age : 36 years, Occ- Agriculture ]
Residing at Bhavdi, Tal - Haveli, District ]
Pune. ]
5. Kisan Chandrakant Tambe ]
Age : 43 years, Occ- Agriculture ]
Residing at Bhavid, Tal - Haveli, District ]
Pune. ]
6. Poonam Mahesh Kadam ]
Age : 30 years, Occ- Homemaker ]
Residing at Bhavdi, Tal- Haveli, ]
District Pune. ]
7. Sudhir Phulchand Kardale ]
Age : 42 years, Occ-Agriculture ]
Residing at Bhavdi, Tal- Haveli, ]
District Pune. ]
8. Ashabai Namdev Tambe ]
Age:55 years, Occ- Homemaker ]
Residing at Bhavdi, Tal-Haveli, District ]
Pune. ]
9. Rajni Somnath Tambe ]
Age : 33 years, Occ-Homemaker ]
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Residing at Bhavdi, Tal- Haveli, District ]
Pune. ]
10. Tarabai Sambhaji Handgar ]
Age : 54 years, Occ- Homemaker ]
Residing at Bhavdi, Tal- Haveli, District ]
Pune. ]
11. Ramdas Maruti Dhage ]
Age: 37 years, Occ- Transport ]
Residing at Bhavdi, Tal- Haveli, District ]
Pune. ] ...Respondents.
------------
Mr. P. S. Dani, Senior Advocate i/by Mr. Veerdhaval Kakade for the Petitioner.
Mr. R. S. Pawar AGP for the Respondent Nos. 1 and 2-State.
Mr. A. V. Anturkar Senior Advocate, a/w Mr. Prathamesh Bhargude and Mr.
Harshavardhan B. Suryawanshi for the Respondent Nos. 5, 7, 8, 9 and 11.
------------
Coram : Sharmila U. Deshmukh, J.
Reserved on: December 11, 2024.
Pronounced on : January 3, 2025.
JUDGMENT :
1. Rule. With consent, Rule made returnable forthwith and
taken up for final hearing.
2. The question which arises for consideration is the meaning
which should be given to the words “date of election of Sarpanch or
Upa-Sarpanch” occurring in the 4th proviso to sub Section 3 of Section
35 of the Maharashtra Village Panchayats Act, 1958 (Village
Panchayats Act) for the purpose of computing period of two years of
immunity. The dispute is whether the immunity of two years against No
Confidence Motion is to be computed from the date of election of the
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first Sarpanch or from the date when the new Sarpanch is elected by
filling the vacancy occurred in the manner provided under Section 43 of
Village Panchayats Act.
3. The undisputed facts are that on 15th January 2021
elections were held for Village Panchayat Bhavdi, Taluka Haveli District
Pune. On 9th February 2021, the Respondent No. 8 was elected as
Sarpanch. On 29th November, 2021 the Respondent No. 8 resigned
from the post of Sarpanch and on 27 th December 2021 the Petitioner
was elected unopposed as the Sarpanch of the Village Panchayat. On
13th December, 2023 Respondent Nos. 4, 5 and 7 to 11 moved No
Confidence Motion against the Petitioner. On 13 th December, 2023
notice was issued by the Respondent No. 2-Tehsildar for convening the
special Meeting and on 19th December 2023, the motion of no
confidence was carried against the Petitioner.
4. Heard Mr. Dani, learned Senior Advocate appearing for the
Petitioner, Mr. Anturkar, learned Senior Advocate appearing for the
Respondent Nos. 5, 7, 8, 9 and 11 and Mr. Pawar, AGP appearing for the
Respondent-State.
5. Mr. Dani, would submit that the 4 th proviso to Section 35
(3) of the Village Panchayats Act makes clear reference to the “date of
election of Sarpanch or Upa-Sarpanch and the same implies that it is
referable to the person and not to the post. He submits that the
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definition of Sarpanch contained in Section 3 (17) of the Village
Panchayats Act includes directly elected Sarpanch as well as Sarpanch
elected under Section 43. He submits that Section 43 of the Village
Panchayats Act refers to the term of office of the Sarpanch i.e.
remainder period of the term of the Panchayat whereas the 4 th proviso
to Section 35(3) refers to the grant of immunity and date of election
which will not relate back to the date of the first meeting held for
election of Sarpanch. He would submit that in case of directly elected
Sarpanch the first proviso to Section 35(1A) provides that motion of no
confidence shall not be brought within a period of two years from the
date of election of Sarpanch and would submit that in case there is
change in Sarpanch the next Sarpanch will get immunity from the no
confidence motion which will be counted from the date of his election
and the same meaning has to be given to the 4 th proviso to Section 35
(3). He would submit that the immunity is available to the person
elected on the said post and not the post. He submits that what is
crucial is the date of entering office and it cannot be assumed that the
date of election would be the date of election of the first Sarpanch. He
submits that the legislative intent is that there should be stability in
democratic set up as a Grampanchayat and therefore the meaning
which is required to be ascribed must be the one which furthers the
intention of the legislature i.e. two years from the date the Sarpanch
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enters the office. He draws support from the decision of Madhya
Pradesh High Court in the case of Rajaram Patil vs. State of M.P.1
6. Per contra, Mr. Anturkar, learned Senior Advocate
appearing for the Respondent Nos. 5, 7, 8, 9 and 11 would submit that
the immunity which is granted by the 4 th proviso to Section 35(3) is only
for a period of two years from the date of first election. He would
submit that acceptance of Petitioner’s interpretation would render the
statutory provisions meaningless as in that eventuality the second
Sarpanch will enjoy the immunity and before the expiry of two years
can again resign and third person can occupy his place and immunity
will be continued. He submits that while interpreting the words “date
of election of Sarpanch or Upa-Sarpanch”, Section 43 assumes
importance as it speaks of filling up of vacancy and the Sarpanch who
is elected under Section 43 steps into the shoes of the first Sarpanch
and therefore enjoys the same immunity available to the first Sarpanch
for a period of two years from date of election of first Sarpanch. He
submits that accepting the interpretation of the Petitioner would
enable the second Sarpanch who has lost the support of majority of
Grampanchayat to rule by enjoying the immunity which would be
contrary to the legislative intention. He would submit that a full bench
decision of this Court in the case of Tatyasaheb Ramchandra Kale vs.
1 [(2002) (5) M.P.L.J. 513]
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Navnath Tukaram kakade2 has stressed the importance of the
executive power of the Panchayat which vests in the Sarpanch and has
held that Sarpanch who has lost the mandate of the house, if continued
would result in acting against very tenants of democracy.
7. Rival contentions now fall for determination.
8. The quest of this discussion is to ascertain whether the
immunity of two years granted by the 4th proviso to Sub Section (3) of
Section 35 is qua the post or qua the person by interpreting the words
“date of election”.
9. The election of Sarpanch takes place in the first meeting
held after every general election as provided in Sub Section (2) of
Section 30 of Village Panchayats Act unless directly elected under
Section 30A-IA of Village Panchayats Act. A Sarpanch may be removed
by mandate of majority by passing of No Confidence Motion and the
procedure governing the passing of No Confidence Motion finds place
in Section 35 of Village Panchayats Act and reads thus:
“35. (1) A motion of no confidence may be moved by
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 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 Tahasildar,
2 2014 (6) Bom. C. R. 737.
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shall convene a special meeting 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) (a) If the motion is carried by a majority of not less
than 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 or the Upa-Sarpanch, as
the case may be, shall forthwith stop exercising all the
powers and perform all the functions and duties of the
office and thereupon such powers, functions and
duties shall vest in the Upa-Sarpanch in case the
motion is carried out against the Sarpanch; and in case
the motion is carried out against both the Sarpanch
and Upa-Sarpanch, in such officer, not below the rank
of Extension Officer, as maybe authorised by the Block
Development Officer, till the dispute, if any, referred
to under sub-section (3B) is decided:
Provided that, if the dispute so referred is
decided in favour of the Sarpanch or, as the case may
be, Upa-Sarpanch, thereby setting aside such motion,
the powers, functions and duties of the Sarpanch or
Upa-Sarpanch shall forthwith stand restored, and if
the dispute is decided confirming the motion, the
office of the Sarpanch or, as the case may be, Upa-
Sarpanch shall be deemed to have fallen vacant from
the date of the decision of the dispute, unless the
incumbent has resigned earlier :
Provided further that, in cases where the offices of
both the Sarpanch and Upa-Sarpanch become vacant
simultaneously, the officer authorised under this sub-
section shall, pending the election of the Sarpanch,
exercise all the powers and perform all the functions
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Provided also 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 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 :
Provided also that, no such motion of no-
confidence shall be moved within a period of two
years from the date of election of Sarpanch or Upa-
Sarpanch and before six months preceding the date
on which the term of Panchayat expires:
(Emphasis supplied)
Provided also that, if the no-confidence motion fails,
then no motion shall be moved within next two years
from the date of failure of no-confidence motion.
(b) After the motion of no-confidence against the
directly elected Sarpanch is carried by a majority of not
less than 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, then the
same shall be ratified by the Gramsabha, in a special
meeting convened, within 15 days from passing of
such motion, by an officer appointed by a Collector in
this behalf, in the presence and under the
chairmanship of such officer, by simple majority by the
method of counting of heads. After such ratification of
motion by the Gramsabha, the Sarpanch shall
forthwith stop, exercising all powers and performing
all the function and duties of the office and thereupon,
such powers, functions and duties shall vest in the
Upa-Sarpanch, and in case the motion is carried out
against both the Sarpanch and Upa-Sarpanch, in such
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till the dispute, if any, refereed to under sub Section
(3B) is decided:
(3A) If the motion is not moved or is not carried by a
majority of not less than 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 far as possible, within thirty days from the date on
which it was received by him and his decision shall be
final.”
10. By reason of the post of Sarpanch falling vacant due to
disablement, death, resignation, disqualification etc, the vacancy is
required to be filled in the manner prescribed under Section 43 of
Village Panchayats Act which reads thus:
“43. Filling up of vacancies:
(1) Any vacancy of which notice has been given to the
Collector in the prescribed manner due to the
disablement, death, resignation, disqualification,
confirmation of no confidence motion, absence
without leave or removal of a Sarpanch or Upa-
Sarpanch, shall be filled, by the election of a Sarpanch
or Upa-Sarpanch, who shall hold office so long only as
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Sarpanch or Upa-Sarpanch in whose place he has been
elected would have held office if the vacancy had not
occurred:
Provided that, the post of the Sarpanch or Upa-
Sarpanch, as the case may be, fallen vacant under this
sub-section shall be filled in within thirty days from the
date of such vacancy.
Provided further that, if the post of the directly
elected Sarpanch fallen vacant under this sub-section,
then it shall be filled in by election in the manner laid
down in section 30A-1A within six months from the
date of such vacancy.
(2) The meeting for the election of a Sarpanch under
sub-section (1) shall be convened by Collector in the
manner described in sub-section (1) of section 33.”
11. In present case, the vacancy occurred by reason of
resignation of first elected Sarpanch. The first Sarpanch was elected on
9th February, 2021 and the period of two years if counted from election
of first Sarpanch would expire on 9 th February, 2023, whereas if
calculated from the date of election of Petitioner would expire on 27 th
December, 2023. The motion was moved on 13th December, 2023 i.e.
after expiry of period of two years from election of first Sarpanch and
before expiry of period of two years from date of election of
Petitioner. The 4th proviso to Sub Section (3) of Section 35 uses the
group of words “no such motion of no-confidence shall be moved
within a period of two years from the date of election of Sarpanch”. It
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is well settled cannon of interpretation that the statute must receive
its literal meaning when the words and language are clear and
unambiguous. Viewing the provision, the words “date of election”
indicates that the words are situation specific and not person specific.
For the words to be person specific, as and by way of illustration the
reference would be to “his/her election” or “the date he/she assumes
office” or “the date when he/she takes charge”. The statute if worded
as “Provided also, that no such motion of no confidence shall be moved
within a period of two years from the date he assumes charge as
Sarpanch or Upa Sarpanch and before six months preceding the date
on which the term of Panchayat expires”, would have left no manner of
doubt that person avails immunity for two years from the date he
enters office. Contrast this with the present words of the statute
makes it evident that the same is situation specific and is qua the post
and not qua the person. The absence of the person specific words, in
my opinion, makes it evident that the immunity is co-terminus with the
post and not the person and that being so, the date of election would
mean date of first election to that post.
12. The interpretation discussed above receives support from
Section 43 which provides for the new Sarpanch to hold office so long
as the first Sarpanch would have held office if the vacancy had not
occurred. The election of subsequent Sarpanch under Section 43 on
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the happening of certain exigencies mentioned therein has no impact
on the term of the office and the fresh incumbent continues as if the
vacancy has not occurred. Section 43 is not a provision prescribing the
term of office, which has been prescribed by Section 27 and Section 28
of the Village Panchayats Act, but provides for filling the vacancy by
treating the incumbent as continuation of the earlier Sarpanch in place
and stead of the erstwhile Sarpanch as if the vacancy had not occurred.
Section 43 makes it clear that the last elected Sarpanch steps in the
shoes of the erstwhile Sarpanch. The term remaining unchanged and
the last elected Sarpanch simply taking over the baton from the
erstwhile Sarpanch for remainder of term, interpreting the period of
two years from date of his election would amount to giving the filling
of vacancy the colour of fresh election and grant of fresh immunity,
when the statute is clearly to the contrary.
13. If the contention of Mr. Dani is accepted then the bar
envisaged under the 4th proviso to Sub Section (3) of Section 35 would
come into play from the date of election of every subsequent
Sarpanch. The contention though would appear at the first blush to be
correct literal interpretation, however, the application of such an
interpretation to the filling of vacancy under Section 43 would render
the words “date of election” person specific when the statute intends
it to be situation specific and the inevitable conclusion is that it refers
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to the post and not the person and when reference is made to the
post, the date of election would mean the date of first election to the
post. Accepting Mr. Dani’s submission would amount to reading words
in the statute when none exists by referring to the date of election as
date of his election and making it person specific and would render the
4th proviso to Sub Section (3) of Section 35 meaningless where the
remainder of term is less then two years and the last elected Sarpanch
would continue to avail the immunity though he has lost the
confidence of the majority of the members.
14. Mr. Dani would rely on the definition of Sarpanch under
Section 3(17) which includes a directly elected Sarpanch and Sarpanch
elected under Section 43 to canvass a submission that in case of
directly elected Sarpanch, the next Sarpanch will get immunity for two
years from date of his election and a same meaning has to be given to
Sarpanch elected under Section 30(2). In my view, the direct election of
Sarpanch to the Gram Panchayat will not make any difference as even
in case of directly elected Sarpanch, the manner of filling vacancy is
under Section 43 and even the directly elected Sarpanch continues as if
the vacancy had not occurred.
15. To digress a little, the Village Panchayats Act underwent
considerable amendments qua the directly elected Sarpanch. By
Amendment Act 54 of 2018 Section 30A-IA was inserted in Village
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Panchayat Act providing for direct election of Sarpanch. By the same
amendment Section 1A was introduced in Section 35 and 4 th proviso to
Section 35(3) was substituted to provide for immunity of two years
from date of election of Sarpanch, whereas the period of immunity for
Sarpanch elected by the elected members was for six months. Section
43 was amended to provide for the vacancy to be filled in by election in
manner laid down in Section 30A-IA.
16. By the Amendment Act No. 2 of 2020, Section 30A-IB was
inserted providing for non application of Section 30A-IA to the general
elections and by-elections and every Panchayat to have a Sarpanch
elected under Section 30 by the elected members of the Panchayat.
The 4th proviso to Sub Section (3) of Section 35 was amended to
increase the period of immunity of Sarpanch elected under Section 30
from six months to two years. The second proviso to Sub Section (1) of
Section 43 was substituted by providing that in case of vacancy in the
post of the directly elected Sarpanch, the vacancy shall be filled by
election from amongst the members of Panchayat themselves. The
filling up of vacancy in case of directly elected Sarpanch was thus
brought on par with Section 30 of Village Panchayats Act.
17. By the Amendment Act 42 of 2022, Section 30A-IB came to
be deleted paving the way for the direct elections of the Sarpanch and
restoring the 2018 position. Section 35(1A) came to be deleted and the
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provisions of Section 35 were brought in par with sub sections of
Section 35(1A). The second proviso to Section 43 was substituted by
providing for filling of vacancy as per Section 30A-IA.
18. The reference to the above amendments was for the
purpose that the position does not differ by reason of directly elected
Sarpanch. Section 43 applies to a directly elected Sarpanch and the last
elected Sarpanch continues for the remainder of the term. The filling
of vacancy cannot commence a fresh period of immunity for the last
elected Sarpanch as he continues for remainder of the term. The
manner of election, whether directly or by the elected members of the
Panchayat will not result in interpreting the date of election to be
person specific.
19. The trigger point for the period of two years is the date of
election. In my view, Section 35 and Section 43 will have to be read
conjointly and when so read, the words “date of election” occurring in
4th proviso to Section 35(3) is referable to the date of the election of
the first Sarpanch. The interpretation also serves the purposive
interpretation as although the statutory longevity by grant of
immunity of period of two years is prescribed for infusing stability but
at the same time the observation of the Full Bench in Tatyasaheb
Ramchandra Kale vs Navnath Tukaram Kakade (supra) though
rendered in the context of mandatory nature of the Panchayat Rules
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notes as under:
“The issue has to be looked at from one more
perspective. In terms of Section 38 of 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 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. …..”.
(Emphasis supplied)
20. As far as the decision of the Madhya Pradesh High Court in
the case of Rajaram Patil vs. State of M.P (supra), the decision
considered the provisions of M.P. Panchayat Raj Adhiniyam, 1993.
Section 21 of the said Act is clearly distinguishable as it refers to grant
of immunity for a period of one year from the date on which Sarpanch
enter their respective office. In the context of the words used in that
statute, it was held that as far as entering office is concerned, the
effective date is when he actually assumes the charge. The provisions
of Section 38 of that Act which was relied upon is materially different
from Section 43 of Village Panchayats Act as it does not contain the
words “would have held office if vacancy had not occurred.” The
interpretation placed in the said judgment was based on the words
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used in that statute and does not assist the case of the Petitioner.
21. Before this Court, the submissions were confined to the
commencement point of period of two years for grant of immunity. In
light of the discussion above, the words “date of election” occurring in
the 4th proviso to Sub Section (3) of Section 35 being situation specific
and not person specific, the immunity granted is qua the post and not
qua the person and would therefore mean the date of election of first
Sarpanch and not the date of election of last elected Sarpanch. The
period of two years would therefore have to be reckoned from date of
election of first Sarpanch.
22. Resultantly, Petition fails and is dismissed. Rule is
discharged.
[Sharmila U. Deshmukh, J.]
23. At this stage, a request is made for extension of the
interim relief which has been operating in favour of the Petitioner for a
period of six weeks. The interim relief is extended for a period of six
weeks from the date of uploading of this order.
[Sharmila U. Deshmukh, J.]
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