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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 13764 OF 2023

Smt. Sampada Vilas Mahargude ...Petitioner

Versus
The State of Maharashtra & Ors. ...Respondents

Mr. V. S. Kapse a/w. Mr. Ranjeet H. Patil, Advocates, for the Petitioner
Mr. A. B. Chate, Additional GP a/w. Mr. P. G. Sawant, AGP for the State
Mr. Balwant Salunkhe, Advocate, for Respondent Nos. 3 to 11

CORAM : MADHAV J. JAMDAR, J.

DATED : 13th DECEMBER 2023

ORAL JUDGMENT:

1. Heard Mr. Kapse, learned Counsel appearing for the Petitioner, Mr.

Salunkhe, learned Counsel appearing for Respondent Nos. 3 to 11 and Mr.

Chate, learned Additional GP along with Mr. P. G. Sawant, learned AGP,

appearing for the State.

2. By the present Writ Petition filed under Article 227 of the

Constitution of India, the challenge is to the legality and validity of Order

dated 20th October 2023 passed by the Respondent No. 2-Collector, Sangli

in Appeal Gram/Appeal/16/2023 (“impugned Order”) filed under Section

35(3-B) of the Maharashtra Village Panchayats Act [Act No. III of 1959]

(“said Act”). By the impugned Order, the said Appeal filed by the Petitioner

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has been rejected and as a result of the same, a motion of no confidence

carried against the Petitioner in the meeting dated 17th July 2023 of the

Gram Panchayat Talewadi, Taluka Atpadi, District Sangli has been held to

be passed in accordance with Section 35(3) of the said Act.

3. It is the contention of Mr. Kapse, learned Counsel appearing for the

Petitioner that the Notice as contemplated under Section 35 of the said

Act, has not been served on the Petitioner. There is a grave procedural

defect and therefore, said motion of no confidence has been carried in an

illegal manner. The Requisition has not been served on the Petitioner and

therefore, motion of no confidence has been passed by violating principles

of natural justice. The mandatory requirements under Rule 2(3) of the

Bombay Village Panchayats Sarpanch and Up-Sarpanch (No Confidence

Motion) Rules, 1975 (“said Rules”) are not complied with. He pointed out

Rule 2(1) and submitted that the same is also not followed. Service of

Notice on the Petitioner’s son is not a good service and therefore, it has to

be held as no service on the Petitioner. The signature on the said Notice is

not that of the son of the Petitioner and accordingly Affidavit dated 13th

September 2023 of the Petitioner’s son i. e. Sharad Vilas Mahargude is filed

before the Collector. He submitted that the Petitioner’s son is not residing

with the Petitioner in her house. He submitted that Petitioner’s husband

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has also filed an Affidavit stating that he was present in the Petitioner’s

house on 13th July 2023 and no one had come to serve the Notice on that

day. Service of Notice of proposed motion of no confidence along with the

Requisition is a mandatory requirement under the scheme of the said Act

and the same is not complied with. He submitted that in any case,

Requisition is not in the prescribed format and Tahsildar has not served the

Notice dated 12th July 2023. Due to non-service of the Notice dated 12th

July 2023, the Petitioner’s rights are violated. The right to speak in the

meeting in which motion of no confidence is being considered, is a vital

right which the Sarpanch is entitled to under Section 35(2) of the said Act

and therefore, the motion of no confidence which has been passed is not in

accordance with law. The Notice did not contain the Requisition moved by

the Respondent Nos. 5 to 11 and that it is mandatory to serve the

Requisition on the person against whom motion of no confidence is to be

carried. He submitted that Rule 2(1) of the said Rules provides that one

original and nine copies of the Requisition are required to be submitted to

the Tahsildar and same are required to be sent to Sarpanch, Upa-Sarpanch,

Zilla Parishad, Panchayat Samiti, Collector, Commissioner, Secretary and

one copy is required to be displayed on the notice board of the Gram

Panchayat. He submitted that these mandatory requirements are not

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complied with.

4. On the other hand, Mr. Salunkhe, learned Counsel appearing for

Respondent Nos. 5 to 11 submitted that Respondent Nos. 5 to 11 who are

members of the Gram Panchayat, moved the proposal for motion of no

confidence against the Petitioner on 11th July 2023. The said Requisition

has been signed by seven members of the Gram panchayat. Said Gram

Panchayat is having nine members. Motion of no confidence is as per the

prescribed format. In view of the said notice dated 11th July 2023, the

Respondent No. 3-Tahsildar, Atpadi convened said meeting on 17th July

2023 and issued Notice dated 12th July 2023 to all the members. Record

shows that the notice was served upon the Petitioner’s son at the residence

of the Petitioner, who was present therein at that time and a Panchnama to

that effect has been drawn. Notice dated 12th July 2023 along with the

Requisition has been validly served on the Petitioner. On 17th July 2023,

the meeting for considering the motion of no confidence was held in which

seven out of nine members have voted in favour of the motion of no

confidence. The Petitioner remained absent in the said meeting. The Notice

of motion of no confidence is in the prescribed format. The Tahsildar has

convened the special meeting on 17th July 2023 and served the same on

the Petitioner’s son in accordance with the provisions of law. It is a settled

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legal position that even if there is some technical fault in the proceedings

of the meeting of the Panchayat, as the motion of no confidence has been

carried by three-fourth of the Gram Panchayat members who are present

and entitled to vote, which is the requirement under the provisions of the

said Act, no prejudice is said to have been caused to the Petitioner. He

relied on the decision of a learned Single Judge of this Court in the case of

Prabhawati Vijaykumar Khivsara v. State of Maharashtra & Ors.1

5. Before considering the rival contentions, it is necessary to set out the

factual aspects.

(i) The Gram Panchyat Talewadi, Taluka Atpadi, District Sangli has a

total of nine members. The Petitioner and Respondent Nos. 5 to 11 were

elected as members of the Gram Panchayat in the year 2021.

(ii) Petitioner has been elected as the Sarpanch of the said Gram

Panchayat in the year 2021.

(iii) On 11th July 2023, Respondent Nos. 5 to 11 i.e. seven members out

of nine members have moved the motion of no confidence in accordance

with Section 35 of the said Act and submitted the said proposal to the

Tahsildar-Respondent No. 3 on 11th July 2023.

(iv) The Tahsildar convened a special meeting on 17th July 2023 and

1 2008 (2) Mah LJ 274

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issued Notice dated 12th July 2023 for considering said motion of no

confidence to all the members including Petitioner and Respondent Nos. 5

to 11.

There is a dispute on the issue of whether the said notice dated 12 th July

2023 was served on the Petitioner or not. It is the contention of the

Respondents that the said notice has been duly served on the Petitioner’s

son who is an adult and who was present at that time in the house of the

Petitioner. It is their contention that a Panchnama to that effect has been

drawn. However, it is the contention of the Petitioner that no such notice

has been served.

(v) Thereafter, the meeting of Gram Panchayat was held on 17th July

2023. In the said meeting, the Petitioner was absent. In the said meeting,

motion of no confidence has been passed by an overwhelming majority of

seven members out of nine members i.e. more than three-fourth members

supporting the motion of no confidence.

6. Before considering the rival contentions, it is necessary to set out the

relevant legal provisions.

(i) Section 35 of the said Act reads as under:

“35. Motion of no confidence.- (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

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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 Tahsildar shall convene a
special meeting of the Panchayat for considering the motion of
no confidence at the office 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 the Sarpanch 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 may be 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

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officer authorised under this sub-section shall, pending the

election of the Sarpanch, exercise all the powers and perform all
the functions and duties of the Sarpanch but shall not have the
right to vote in any meetings of the panchayat:
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:
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 Gram Sabha, in a special meeting
convened, within fifteen 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 a simple majority
by the method of counting of heads. After such ratification of
motion by the Gram Sabha, the Sarpanch shall forthwith stop,
exercising all the powers and performing all the functions 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 officer, not below the rank of Extension Officer, as may be
authorised by the Block Development Officer, till the dispute, if
any, referred to under sub-section (3B) is decided:

(3-A) If the motion is not moved or is not carried by a majority

of not less than two-third of or, as the case may be, three-fourth,
of the total number of the members who are for the time being

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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.

(3-B) 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.

(Emphasis added)
(ii) The relevant Rules of the said Rules are as follows:

“2. (1) The members of a panchayat who desire to move a

motion of no-confidence against the Sarpanch or the Upa-
Sarpanch shall give notice thereof in the form appended hereto
to the tahsildar of the taluka in which such panchat is
functioning. Where the members desire to move the motion of
no-confidence against the Sarpanch as well as the Upa-Sarpanch,
they shall give two separate notices.

(2) The notice under sub-rule (1) shall be accompanied by nine

additional copies thereof, and the Tahsildar shall send one copy
to the Sarpanch, one to the Upa-Sarpanch and one each to the
Zilla Parishad, the Panchayat Samiti, the Collector and the
Commissioner. One copy shall also be given to the Secretary.

(2-A) The Tahsildar shall also publish the said notice by placing
the same on the notice board at the office of the Panchayat and
Tahsildar Office.

(2-B) Every notice under sub-rule (1), wherever it may be

practicable, be served by delivering or tendering it to the
Sarpanch or Upa-Sarpanch to whom it is addressed or, where
such person cannot be found, by delivery or tendering it to any
adult member of his family residing with him; and if no such

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adult member can be found or, where the Sarpanch, Upa-

Sarpanch or such adult member, as the case may be, refuses to
accept the notice, it shall be served by affixing it, in the presence
of two witnesses, on the outer door or some other conspicuous
part of the house in which such Sarpanch or Upa-Sarpanch
ordinarily dwells. The notice served in this manner shall be
deemed to the served or tendered or delivered to the concerned
Sarpanch or Upa-Sarpanch.

(3) The Tahsildar shall, immediately on receipt of such notice

under sub-rule (1), Tahsildar shall satisfy himself that the notice
has been given by not less than one-third of the total number of
members (other than associate members) who are for the time
being entitled to sit and vote at any meeting of the panchayat
and then convene a special meeting of the Panchayat for the
purpose within seven days from the date of receipt of such
notice.”
(Emphasis added)
7. Learned Counsel appearing for the Petitioner relied on Prabhawati

Vijaykumar Khivsara (supra) and particularly on paragraphs 20 to 22

therein which read as under:

“20. The Division Bench of this Court, in the case of Nimba

Rajaram Mali vs. Collector, Jalgaon and others, reported in
1998 (3) Mh. L.J. 204:1999 (1) Bom. c.r. 546, followed the
aforesaid Judgment in the case of Smt. Annapurnabai
Ajabrao vs. Annapurnabai Anandrao (referred supra) and
observed thus:

“In a democratic society what is important is the will of

the majority and the elected representatives must
honour the will of the majority. It is immaterial to
analyse and debate on the reasons behind the will of
the majority or the specific reasons for such will being
expressed. The will of the majority is of paramount
importance and it must be respected by all elected

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representatives responsible for the governance of such

democratic institutions. As observed by the Apex Court
in the case of Babubhai (supra), resolution of No
Confidence Motion is different from Censure Motion
and such a resolution cannot be faulted on the ground
that there were no reasons or reasons were vague and
lacked detailed specifications. Once the resolution of
No Confidence Motion is passed by a clear majority
and in keeping with the requirements of the concerned
statutory provisions, the person against whom such a
resolution is passed, must honour the will of the
majority and make way for the new election of his
successor. Unless it is shown that while passing such a
resolution of No Confidence Motion, there was flagrant
violation of any of mandatory procedure laid down,
such a resolution cannot be interfered with by the
Court or statutory authorities adjudicating such
disputes”.

21. It appears that these Judgments of the Division Benches

also have not been brought to the notice of the learned
Judges who had decided the cases which are relied on by
Shri Chate, learned Counsel.

22. In a democratic set up a person is expected to respect the

mandate of majority. Support of a majority is fundamental in
the democratic set up and particularly when no prejudice is
pointed out by alleged departure from the procedural
requirement, the mandate of the majority cannot be
interfered with lightly by this Court. In that view of the
matter, I am unable to find any merit in both the petitions.
Both the petitions, are therefore, rejected”.

(Emphasis added)
8. The distinction between a motion of no confidence and a motion of

censure was emphasised in the decision of the Supreme Court in Babubhai

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Muljibhai Patel v. Nandlal Khodidas Barot2 wherein it has been held as

follows:

“It is no doubt true that according to the form prescribed the

ground for the motion of no confidence has to be mentioned
in the notice of intention to move a motion of no confidence.
It does not, however, follow therefrom that the ground must
also be specified when a motion of no confidence is actually
passed against a President. It is pertinent in this context
observe that there is a difference between a motion of no
confidence and a censure motion. While it is necessary in the
case of a censure motion to set out the ground or charge on
which it is based, a motion of no confidence need not set out
a ground or charge. A vote of censure presupposes that the
persons censured have been guilty of some impropriety or
lapse by act or omission and it is because of that lapse or
impropriety that they are being censured. It may, therefore,
become necessary to specify the impropriety or lapse while
moving a vote of censure. No such consideration arises when
a motion of no confidence is moved. Although a ground may
be mentioned when passing a motion of no confidence, the
existence of a ground is not a prerequisite of a motion of no
confidence. There is no legal bar to the passing of a motion of
no confidence against an authority in the absence of any
change of impropriety or lapse on the part of that authority.

2 (1974) 2 SCC 706

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The essential connotation of a no-confidence motion is that

the party against whom such motion is passed has ceased to
enjoy the confidence of the requisite majority of members”.
(Emphasis added)
9. A Full Bench of this Court in the case of Tatyasaheb Ramchandra

Kale v. Navnath Tukaram Kakde3 was considering the issue of whether a

failure to formally move and second a motion of no confidence as required

by Rule 17 of the Bombay Village Panchayats (Meetings) Rules, 1959

would render the motion of no confidence carried by the requisite majority

under Section 35 of the said Act invalid. The Full Bench in its decision, held

as follows:-

15. It is in the context of the test laid down by the Apex Court
in K. Narasimhiah's case that the instant case would have to be
considered. As indicated above, the object of the Bombay
Village Panchayats Act is to establish village panchayats so that
they function as units of local self-government. The Act can be
said to reflect the policy of the State insofar as decentralization
of powers and vesting them in the local self-governments is
concerned. The Sarpanch and Upa-Sarpanch can be said to be
pivotal to the functioning of the Gram Panchayat, as the
executive power is vested in the Sarpanch who is made
directly responsible for the due fulfillment of the duties
imposed upon the Panchayat by or under the Act. It is
considering the pre-eminent position that the Sarpanch and
Upa-Sarpanch are said to occupy that the provisions have been
made as regards their election, resignation, vacation of the
office of the Sarpanch and Upa-Sarpanch by a motion of no
confidence passed by the Panchayat. The idea as indicated

3 2014 SCC OnLine Bom 1483

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above is to lend stability to the office of the Sarpanch and Upa-

Sarpanch so that the administration at the village level does
not suffer. However, if the Sarpanch or Upa-Sarpanch has lost
the mandate of the house, his removal is circumscribed by the
requirement of the motion of no confidence being moved by
⅓rd of the members and passed by ⅔rd of the members, then
as a democratic practice he would have to vacate the office.
Hence if on account of a formal defect viz that the motion is
not proposed or seconded though passed by ⅔rd majority, if
the motion is to be termed as invalid, the same would result in
nullifying and defeating provision in the Bombay Village
Panchayats Act which provides the manner in which a
Sarpanch can be removed. The effect of such invalidation
would be that the smooth functioning of the elected body
would be affected. The consequence would be that though the
requirements of the Act have been fulfilled, the proceedings
would be held to be invalid on account of the non compliance
of Rule 17, which is part of subordinate legislation, in the
matter of proposing and seconding of the motion. A provision
contained in a subordinate legislation cannot prevail, if the
requirement of the main enactment i.e. the Act has been
fulfilled. In such an eventuality the requirement of the
subordinate legislation would have to give way to the Act and
hence the requirement of Rule 17 in the matter of proposing
and seconding the motion can only be said to be directory. For
the same reason Rule 39 which is part of the same Meeting
Rules would have no impact on the conclusion that Rule 17 is
directory and not mandatory.

(Emphasis added)
10. The Full Bench in Tatyasaheb Ramchandra Kale (supra) in

paragraph 21 held as follows:

“21. Finally to put the matter in perspective, the requirement

of Rule 17 in the matter of proposing and seconding the
motion cannot impinge upon the validity of the motion of no
confidence which has otherwise been passed by fulfilling the

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requirement of section 35(3) of the Bombay Village

Panchayats Act, 1958. The infraction that has occurred on
account of the motion not being formally proposed and
seconded cannot invalidate the motion if the same has been
passed by fulfilling the requirements of section 35(3) of the
Bombay Village Panchayats Act, as the said infraction does not
affect the merits of the case. Hence we hold that Rule 17 is
directory, and the test laid down in section 44(3) of the
Bombay Village Panchayats Act namely whether the defect
affects the merits of the case, would have to be applied, if a
challenge is raised to such a motion. We accordingly answer
the reference and remit the matter back to the Division Bench
for the above Letters Patent Appeal being decided on merits.”

(Emphasis added)

11. The said Act provides for separate and distinct provisions concerning
motion of no confidence (Section 35), disqualification (Sections 14, 14-A,
14-B) and removal from office (Sections 39, 39A). As held by the Hon’ble
Supreme Court in Babubhai (supra), there is a distinction between the
motion of no confidence and disqualification/removal from office. As held
in Babubhai (supra) the essential connotation of a no-confidence motion is
that the concerned Sarpanch or Upa-Sarpanch against whom such motion
is passed has ceased to enjoy the confidence of the requisite majority of
members. Thus, it is clear that as held in Babubhai (supra) although a
ground may be mentioned when passing a motion of no confidence, the
existence of a ground is not a prerequisite of a motion of no confidence.
As held in Tatyasaheb Ramchandra Kale (supra) a provision contained in a
subordinate legislation cannot prevail, if the requirement of the main
enactment i.e. the Act has been fulfilled. In such an eventuality the
requirement of the subordinate legislation would have to give way to the

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Act.
12. Thus, following are the well established principles on the basis of
which mandatory requirements of the scheme of the said Act read with
said Rules can be ascertained:
a) In a democratic society what is important is the will of the majority
and the elected representatives must honour the will of the majority.
b) Once the resolution of Motion of No Confidence is passed by a clear
majority and in keeping with the requirements of the concerned statutory
provisions, the person against whom such a resolution is passed, must
honour the will of the majority and make way for the new election of his
successor. Unless it is shown that while passing such a resolution of Motion
of No Confidence, there was flagrant violation of any of mandatory
procedure laid down, such a resolution cannot be interfered with by the
Court or statutory authorities adjudicating such disputes.
c) In a democratic set up a person is expected to respect the mandate
of majority. Support of a majority is fundamental in the democratic set up
and particularly when no prejudice is pointed out by alleged departure
from the procedural requirement, the mandate of the majority cannot be
interfered with lightly by this Court.
d) A provision contained in a subordinate legislation cannot prevail, if
the requirement of the main enactment i.e. the Act has been fulfilled. In
such an eventuality the requirement of the subordinate legislation would
have to give way to the Act.
e) Test laid down in Section 44(3) of the said Act is whether the defect
affects the merits of the case, would have to be applied, if a challenge is
raised to motion of no confidence passed against Sarpanch and Upa-

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Sarpanch, as the case may be.

13. On the touchstone of the above well established principles, the

following can be said to be the mandatory requirements as per Section 35

of the said Act for coming to the conclusion that the ‘Motion of No

Confidence’ is validly carried against the Sarpanch or Upa-Sarpanch, as the

case may be:-

(i) Notice of ‘Motion of No Confidence’ against Sarpanch and Upa-

Sarpanch is required to be submitted to Tahsildar by not less than two-

third members of the total number of members who are for the time being

entitled to sit and vote at any meeting of the Panchayat.

(ii) Within seven days from the date of receipt of such notice by the

Tahsildar, he shall convene a Special Meeting of the panchayat for

considering ‘Motion of No Confidence’ at the office of the panchayat at the

time to be appointed by him and he shall preside over such meeting.

Notice of such meeting is to be served on all the members of the Panchayat

including the Sarpanch and the Up-Sarpanch.

(iii) At such special meeting of Grampanchayat, the Sarpanch or Upa-

Sarpanch against whom ‘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.

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(iv) Such a motion is required to be carried by a majority of not less than

three-fourth of the total number of members, who are for the time being

entitled to sit and vote at any meeting of the Grampanchayat.

14. In view of the above discussion, it is clear that the following

requirements as provided in rules are not the mandatory requirements:

(i) The requirement that Notice of motion of no-confidence shall be

accompanied by nine additional copies and the Tahsildar to send one copy

to the Sarpanch, one to the Upa-Sarpanch and one each to the Zilla

Parishad, the Panchayat Samiti, and the Collector and the Commissioner.

One copy shall also be given to the Secretary.

(ii) The requirement that Tahsildar shall publish the said notice by

placing the same on the notice board at the office of the Panchayat and

Tahsildar Office.

15. The factual position on record in this case demonstrates the

following:-

(i) On 11th July 2023, Respondent Nos. 5 to 11 i.e. seven members out

of nine members have moved the motion of no confidence in accordance

with Section 35 of the said Act and submitted the said proposal to the

Tahsildar.

(ii) The Tahsildar i.e. Respondent No. 3 convened special meeting on

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17th July 2023 and issued notice dated 12th July 2023 to all the members

i.e. Respondent Nos. 5 to 11 including the Petitioner. The said Notice has

been served on the Petitioner’s son who is an adult and present at that time

in the residence of the Petitioner and a Panchnama to that effect has been

drawn. Accordingly, Notice dated 12th July 2023 was served on the

Petitioner.

(iii) The meeting of Gram Panchayat has been held on 17th July 2023

and motion of no confidence has been passed by an overwhelming

majority of seven members out of nine members i.e. more than three-

fourth members supporting the motion of no confidence. The said meeting

was not attended by the Petitioner.

16. In light of above legal and factual position, it is necessary to consider

the contentions raised by the Petitioner.

17. It is one of the contention of the Petitioner that the said notice is not

in accordance with law and that the said requisition as contemplated

under Section 35(1) of the said Act is not in the prescribed format. It is

significant to note that prescribed format only contemplates setting out the

reasons for no-confidence motion. The notice of requisition issued by the

Respondent Nos. 5 to 11 is at page 18 of the Writ Petition and along with

the same, even the affidavit of Respondent Nos. 5 to 11 is also filed. A bare

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perusal of the said notice clearly shows that the reasons are set out for the

no-confidence against the Petitioner i.e. Sarpanch. The said reasons inter

alia are that the Sarpanch is not doing the work properly, not

implementing the resolution passed by the Gram Panchayat and Sarpanch

does not take anybody in confidence etc. Therefore, there is no substance

in the contention that the same is not in the prescribed format.

18. The contention which the Petitioner has raised is that the motion of

no confidence along with the requisition is to be mandatorily served on the

person against whom motion of no confidence is proposed to be moved.

Reliance is placed on the said Rules. The relevant Rule is Rule 2(b) of the

said Rules. Rule 2(b) provides that as far as possible the notice is to be

served on the Sarpanch or Upa-Sarpanch as the case may be and if the said

person is not available, then the same can be served on any adult member

of the family of such person. It is the case of the Respondents that as the

Petitioner-Sarpanch was not available, the notice has been served on her

adult son and accordingly, a Panchanama was drawn. The said Panchnama

specifically records that what is informed to the Panchas is that the

Petitioner is not available, she is not well and has been admitted at Sangli.

Therefore, notice has been served on her son i.e. Sharad Vilas Mahargude.

Admittedly, said Sharad Vilas Mahargude is an adult.

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19. It is significant to note that the Petitioner has annexed to this Writ

Petition the notice dated 12th July 2023 issued by the Tahsildar, Atpadi

addressed to all the members of the Gram Panchayat and the copy annexed

to the Writ Petition as Exhibit B (Page 26) is specifically marked to the

Petitioner. The said notice specifically directs the Talathi to serve the same

along with the copy of Notices on the Petitioner. On the rear side of the

said Notice, the Petitioner’s son has signed and Gram Sevak’s signature

also appears. It is very significant to note that the Petitioner has annexed to

this Writ Petition a copy of Notice which has been specifically marked to

her and no explanation is given for custody of said Notice. Thus, it is clear

that the Petitioner has been served with the said Notice through her son

who is an adult. Thus, there is compliance with the provisions of the said

Rules regarding service of Notice.

20. The Petitioner has also raised the contention that the signature as

appearing on the rear side of the Notice is not the signature of the

Petitioner’s son. The Petitioner’s son has filed Affidavit stating that the

signature is not his signature. It is also contended that the son is also

residing separately from his mother. An affidavit of the Petitioner’s

husband has also been filed to the effect that on 13th July 2023 he was

present in the house for entire day and no one visited the house on that

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day. However, Panchanama is drawn when the notice was served on the

Petitioner’s son and therefore, said contentions are disputed questions of

fact and therefore, the Writ Court cannot go into those aspects. The

Collector has come to the conclusion that the Petitioner has been properly

served. There is no perversity or illegality in the said finding.

21. The Petitioner has raised other contentions that number of copies of

the notice which are required to be given and several other requirements

are not complied with. However, there is nothing on record to show that

the said requirements are not complied with. In any case, the same are not

mandatory requirements.

22. It is the contention of the Petitioner that Section 35(2) of the said

Act provides that Sarpanch or Upa-Sarpanch against whom motion of no

confidence is to be passed, shall have the right to sit and vote and also to

speak in the meeting convened to consider such a motion. It is the

Petitioner’s submission that the said right is violated. However, factual

position on record clearly shows that inspite of receipt of Notice, the

Petitioner has remained absent in the meeting which was held on 17th July

2023. It is further significant to note that in the said meeting, seven

members out of total nine members, who were for the time being entitled

to sit and vote at the meeting of the Panchayat, passed the motion of no

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confidence and the same is greater than the requirement of three-fourth of

total number of members.

23. In this particular case, the discussion herein above shows that the

Petitioner has failed to establish any departure from the procedural

requirements. In this particular case, admittedly seven members out of

nine members have voted in favour of motion of no confidence and no case

is made out that there is no overwhelming majority of three-fourth

members that voted in favour of the motion. The observations in the

decision of Prabhawati Vijaykumar Khivsara (supra) to the effect that

unless it is shown that while passing such a resolution of No Confidence

Motion, there was flagrant violation of any of mandatory procedure laid

down, such a resolution cannot be interfered with by the Court or statutory

authorities adjudicating such disputes are squarely applicable to this case.

24. Accordingly, no interference in the impugned Order under Article

227 of the Constitution of India is warranted. The Writ Petition is

dismissed, however with no order as to costs.

26. At this stage, a request is made by Mr. Kapse, learned Counsel

appearing for the Petitioner to continue the ad interim relief. However, the

said request is rejected.

[MADHAV J. JAMDAR, J.]

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