Bombay High Court
Shital Kiran Rajput vs The District Collector Chhatrapati … on 27 January, 2025
2025:BHC-AUG:2151-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.13685 OF 2024
Shital Kiran Rajput,
Age : 46 years, Occ. : Sarpanch,
R/o : Bodhegaon (Bk), Tq. Phulambri,
Dist. Chhatrapati Sambhajinagar. ..Petitioner
Versus
1. The District Collector
Chhatrapati Sambhajinagar,
2. The Tahsildar Paithan,
Tq. Phulambri, Dist. Chhatrapati Sambhajinagar
3. Smt. Archana Kailas Kunte,
Age-40 years, Occu.: Up-Sarpanch
R/o. Bodhegaon (Bk), Tq. Phulambri,
Dist. Chhatrapati Sambhajinagar
4. Smt. Sumanbai Kashinath Dheple,
Age-48 years, Occu.: Member
R/o. Bodhegaon (Bk), Tq. Phulambri,
Dist. Chhatrapati Sambhajinagar
5. Shri. Kailas Damodar Kunte,
Age-47 years, Occu.: Member
R/o. Bodhegaon (Bk), Tq. Phulambri,
Dist. Chhatrapati Sambhajinagar
6. Ankush Ramchandra Kunte
Age-55 years, Occu.: Member
R/o. Bodhegaon (Bk), Tq. Phulambri,
Dist. Chhatrapati Sambhajinagar
7. Rajendra Chokhaji Wagh,
Age-45 years, Occu.: Member
R/o. Bodhegaon (Bk), Tq. Phulambri,
Dist. Chhatrapati Sambhajinagar
8. Smt. Mandabai Sanjay Wagh,
Age-46 years, Occu.: Member
R/o. Bodhegaon (Bk), Tq. Phulambri,
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Dist. Chhatrapati Sambhajinagar
9. Smt. Hema Kunal Wagh
Age-35 years, Occu.: Member
R/o. Bodhegaon (Bk), Tq. Phulambri,
Dist. Chhatrapati Sambhajinagar
10. Smt. Champabai Gulchand Wagh,
Age-60 years, Occu.: Member
R/o. Bodhegaon (Bk), Tq. Phulambri,
Dist. Chhatrapati Sambhajinagar
11. Village Panchayat Bodhegaon
Tq. Phulambri, Dist. Chhatrapati Sambhajinagar,
Through it's Village Development Officer. ...Respondents
...
Advocate for Petitioner : Mr. R.V. Gore
AGP for Respondent Nos.1 & 2 : Mr. S.R. Yadav Lonikar
Advocate for Respondent Nos.3 to 10 : Mr. A.R. Salve
Advocate for Respondent No.11 : Mr. H.V. Tungar
...
CORAM : S.G. MEHARE AND
SHAILESH P. BRAHME, JJ.
RESERVED ON : JANUARY 15, 2025
PRONOUNCED ON : JANUARY 27, 2025
JUDGMENT :
– (PER S.G. MEHARE, J.)
1. Rule. Rule made returnable forthwith. Heard finally
with the consent of the parties.
2. The petitioner/Sarpanch has impugned the notice dated
11.12.2024 of respondent no.2 convening the meeting of no
confidence motion under Section 35 sub-section (2) of the
Maharashtra Village Panchayats Act (for short ‘Panchayats Act‘).
3. The petitioner was elected from the OBC (Woman)
Category as the member of the Village Panchayat in the general
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elections held on 15.01.2022. She was elected as Sarpanch on
19.07.2023. Before her, respondent no.4 was the Sarpanch. While
removing respondent no.4 as a Sarpanch, the petitioner was also the
member inviting the meeting of no confidence. On 11.12.2024,
respondent nos.3 to 10 moved a representation to respondent
no.2/Tahsildar for convening the meeting of no confidence against
the petitioner. The petitioner has mainly impugned the notice of
respondent no.2 on the ground that since she has not completed her
tenure of two years from the date of her election, no such motion of
no confidence shall be moved. Therefore, the impugned notice of
respondent no.2 is illegal, incorrect and against the provisions of law.
4. Respondent no.2 filed an affidavit in reply. He submitted
that he solicited the guidance from the District Collector to deal with
such issue before him. Respondent no.1 guided him that the no
confidence as such can be initiated against the petitioner i.e.
Sarpanch or Up-sarpanch, if any, within two years from the date of
election and within six months preceding the date of expiry of the
term of the Village Panchayat. On the basis of the guidance solicited
to him by his authority, he came with a case that the impugned notice
dated 11.12.2024 is prima facie void.
5. Contesting respondent nos.3 to 11 are the parties
interested in the no confidence against the petitioner. They have
appeared before the Court. Their learned counsel has vehemently
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argued that immunity as provided under 4 th proviso to Section 35 of
the Panchayats Act could not be available to the petitioner as she is
not the Sarpanch elected first in time. He has vehemently argued that
the immunity is to the post and not to the person. The earlier
Sarpanch held the post for more than two years and then no
confidence was brought against him. Interpreting the 4 th proviso, he
would further submit that the period of two years should be counted
from the date of election of Sarpanch or Up-sarpanch. The first
Sarpanch was elected long back. Therefore, the no confidence motion
is legally correct and the meeting should be convened. To Bolster his
arguments, he relied on the case of Charushila Bira Shriram Vs. The
State of Maharashtra and Others, Writ Petition No.9981 of 2024 of
the Bombay High Court decided on January 3, 2025.
6. To counter the interpretation of the respondents, learned
counsel for the petitioner would submit that no such discrimination
could be done with the petitioner being the second Sarpanch elected
by the Village Panchayat members. The proviso is unambiguous. The
immunity is not given to the post but it is given to the person. Two
years are to be counted from the date of election of the Sarpanch and
not the post. The period of two years is yet to over. Their no
confidence motion is illegal. To bolster his arguments, he would rely
on the judgment of this Bench in the case of Mukesh Eknath Chavan
Vs. The State of Maharashtra and Others, Writ Petition No.10447 of
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2021 dated 05.10.2021. He would submit that the interpretation of
the Single Bench of the Bombay High Court in the case of Charushila
(supra) is contrary to the object of the proviso. There is some
purpose behind such proviso. Since the immunity of two years has
been granted, the immunity granting to the post of motion of no
confidence as such could not be entertained. The authority
empowered to convey the meeting has expressed the opinion in
favour of the petitioner. Therefore, respondent nos.3 to 10 have no
voice to say so. He prayed to allow the petition.
7. The short question falls for consideration is whether the
immunity/protection of two years from no confidence motion is to be
given qua to the post or the person.
8. For the ready reference, proviso (4) of Section 35 of the
Panchayats Act which pertains to the no confidence motion is
reproduced which reads thus :
“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:”
9. The words used in the above proviso are unambiguous.
Period of two years should be considered from the date of election of
Sarpanch or Upa-sarpanch as is applicable in the case at hand. The
election of Sarpanch is done by a process. However, the Single Bench
of Bombay High Court in the case of Charushila (supra) reading
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Section 35 and 43 of the Panchayats Act conjointly expressed the
opinion that the words “date of election” occurring in 4 th 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, 2014 (6) Bom. C.R. 737 though rendered
in the context of mandatory nature of the Panchayat Rules 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)
10. Finally, it has been observed that 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
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date of election of first Sarpanch and not the date of election of last
elected Sarpanch.
11. The Division Bench of this Court while interpreting the
same proviso in the case of Mukesh (supra) has observed in para 4
that, the provision of Sub Section 3 of Section 35 of the Maharashtra
Village Panchayats Act is explicitly clear and admit of no ambiguity.
The literal interpretation is unambiguous. No confidence motion
cannot be held for a period of two years from the date of election.
12. Primary rules of interpretation is to consider the literal
meaning of the words used in the Act. The term ‘Sarpanch’ has been
defined under sub-section (17) of Section 3 of the Panchayats Act,
which reads thus :
“(17) “Sarpanch” and “Upa-Sarpanch” means a Sarpanch and
Upa-Sarpanch elected under section 30, [30A-1A] [30A] 44 or
43;”
13. Section 30 of the Panchayats Act speaks of the election of
Sarpanch. It provides that every Panchayat shall be presided over by
a Sarpanch who shall be elected by, and from amongst, the elected
members thereof. Section 30-1A is more relevant to interpret the
term whether the Sarpanch is a person or a post. It provides that the
person contesting election for reservation office of Sarpanch to submit
the caste certificate and validity certificate. Herein, the word person
has been used for contesting the election for reserved office of
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Sarpanch. This section further provides responsibility upon such
person to submit the validity certificate within a time prescribed.
14. As per Section 30 of the Panchayats Act, the Sarpanch,
who should preside over the Panchayat is a person elected by and
from amongst the elected members thereof. As per Section 30A-1A,
the Sarpanch is a ‘person’ elected directly by the voters. The
Sarpanch is an executive head of the Panchayat. He has to discharge
certain duties. As per Section 38 of the Act, the executive powers, for
the purpose of carrying out the provisions of the Village Panchayats
Act and the resolutions passed by a Panchayat, vests in the Sarpanch
who shall be directly responsible for the due fulfillment of the duties
imposed upon the Panchayat by or under this Act. His duty is to
convene the Panchayat meetings from time to time. He is responsible
for the misconduct in discharge of the duties or for any disgraceful
conduct or neglect or incapacity to perform his duties or persistently
remains absent in discharge of such duties. If the Sarpanch is guilty
of the above acts, he may be removed by the Commissioner by
following due procedure of law. He even cannot remain absent as per
his whims.
15. The preamble of the Act is that the Village Panchayats are
constituted in the State investing such powers by the authority to
enable them to function as units of local self-government and of
development activities in rural areas, and for certain other matters. As
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observed above, the Sarpanch is an executive authority of the
government resolutions and he has been imposed with the duties. In
this context, the interpretation of 4 th proviso to Section 35 should be
considered. We are of the view that the immunity has been granted to
every Sarpanch elected during the tenure with a view to ensure the
smooth functioning of the Village Panchayat. The purpose is to
protect the functioning of the Village Panchayat and consider the
welfare of the voters of the Village Panchayat. Therefore, the Act has
been constituted.
16. In the judgment of a Single Bench relied upon by the
contesting respondents in the case of Charushila (supra), the doctrine
of purposive interpretation has been applied. We are of the view that
the Sarpanch is a post conferred upon a person. Therefore, the term
‘Sarpanch’ as well as the post of Sarpanch cannot be distinguished.
Both have identical meanings in common parlance. If any action is to
be taken for the misconduct or negligence mentioned above, it would
be taken against the person who holds the post of Sarpanch. The
purposive interpretation is a method of interpreting the laws that
considers the laws purpose rather than just its literal meaning. In
other words, the intent of legislature is to be understood in the
context of purpose and object of the Act. The interpretation is always
held in the fulfillment in the object of statute which is the purposive
interpretation of statute. In the case of Workmen Of Dimakuchi Tea
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Estate vs The Management Of Dimakuchi Tea Estate, AIR 1958 SC
353, the Hon’ble Supreme Court held that the words of a statute,
when there is a doubt about their meaning are to be understood in
the sense in which they best harmonise with the subject of the
enactment and the object which the legislature has in view. Reading
4th proviso to Section 35 of the Act, we are of the view that its
language is unambiguous. The words used in this proviso does not
create doubt or draws two meaning. It is explicitly clear and
unambiguous. Its literal interpretation is also unambiguous. The
words used in the said proviso that no such motion of no confidence
shall be moved within a period of two years from the date of election
of Sarpanch specifically gives the immunity to the Sarpanch elected.
There is no scope to draw the inference that such immunity has been
granted to the Sarpanch who has been appointed first time. This
immunity is granted to every Sarpanch elected during the tenure of
Village Panchayat withstanding his sequence in office. We have
already discussed above the object of the Act and the purpose of
immunity is to ensure smooth functioning of the Village Panchayat. If
the meaning as has been given to the word ‘Sarpanch’ in the case
relied upon by the contesting respondents is considered, the very
object and purpose of the proviso of the Act may be frustrated. The
proviso does not distinguish the election of the Sarpanch for the first
time or subsequent thereto after the no confidence against the
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Sarpanch preceding to the election of another Sarpanch. In view of
the rule of interpretation, literal meaning and the words in the said
proviso, we are of the opinion that the judgment of Charushila
(supra) would not help the contesting respondents. We do not
approve the view taken in Charushila (supra).
17. For the above reasons, the writ petition is allowed. The
impugned notice dated 11.12.2024 for no confidence motion stands
quashed and set aside.
18. No order as to costs.
19. Rule is made absolute in above terms.
(SHAILESH P. BRAHME, J.) (S.G. MEHARE, J.) Mujaheed//
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