Supreme Court of India
SUBHASH & ORS. versus SUREKHA HANUMANT BANKAR & ORS. on 26 February 2021
716
SUPREME COURT REPORTS
[2021] 1 S.C.R.
A
SUBHASH & ORS.
v.
SUREKHA HANUMANT BANKAR & ORS.
(Civil Appeal No. 720 of 2021)
BFEBRUARY 26, 2021
[A.M. KHANWILKAR AND DINESH MAHESHWARI, JJ.]
Gram Panchayat – Respondent No. 1 was elected as VillageSarpanch in general elections of Gram Panchayat – Members ofthe Gram Panchayat moved resolution expressing no-confidenceCagainst respondent No.1 – Resolution passed by requisite majorityon 19.10.2020 – Respondent No.1 carried the matter before theCollector, who, vide order dated 31.12.2020 held that no-confidencemotion was required to be ratified by Special Gram Sabha conductedin the village in presence of an Independent Officer appointed byDthe Collector – Respondent No.1 filed Writ Petition which wasallowed by the High Court – Before Supreme Court, plea ofappellants that the High Court ought not to have set aside theresolution passed by the Gram Panchayat; and at best, it ought tohave directed to take follow up steps as required in terms of thedecision of the Collector – Respondent No. 1, however, submittedEthat as per guidelines issued by State Government, the resolutionwas required to be placed for consideration before the Special GramSabha at least within 10 days from the date of Collector’s orderand since that period had expired long back, the process cannot becontinued further – Held: Respondent No.1 was unable to pointFout any provision in the Village Panchayat Act which postulatedthat if the proposed resolution was not placed before the GramSabha within specified time, the same would lapse in law – Inabsence of such a provision, it cannot be assumed that the resolutionhad lapsed in law, merely because of some direction issued byconcerned department of State Government – The no-confidenceGresolution was challenged by respondent No.1 before the processof ratification could be taken forward by the Collector – After thedecision of the Collector, the matter travelled to the High Courtonce again at the instance of respondent No.1 and finally beforeSupreme Court – Respondent No.1 cannot be allowed to takeH
advantage of that situation by placing reliance on administrativeinstructions – No confidence motion passed on 19.10.2020 andconfirmed by the Collector vide order dated 31.12.2020 to be takenforward in accordance with law.
CIVIL APPELLATE JURISDICTION : Civil Appeal No.720 of2021.
From the Judgment and Order dated 20.01.2021 of the High Courtof Judicature of Bombay Bench at Auranagabad in Writ Petition No.238of 2021.
Pravin V. Mandlik, Sr. Adv., Shirish K. Deshpande, Ms. RuchaPravin Mandlik, Advs. for the Appellants.
Shashibhushan P. Adgaonkar, Rana Sandeep Bussa, GagandeepSharma, Advs. for the Respondents.
The following order of the Court was passed:
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ORDER
1. Leave granted.
2. This appeal takes exception to the judgment and order dated20.01.2021 passed by the High Court of Judicature of Bombay Bench atAurangabad in Writ Petition No. 238 of 2021 allowing the writ petitionfiled by the respondent No.1.
3. The respondent No. 1 was directly elected as a Sarpanch ofthe village Karajkheda, Taluk and District Osmanabad by the public ingeneral election of the Gram Panchayat held on 17.10.2017. Because ofhis acts of commission and omission, the members of the Gram Panchayatmoved resolution expressing no-confidence against respondent No.1.That resolution was passed by requisite majority on 19.10.2020. Againstthat resolution, the respondent No.1 carried the matter before theCollector, who, in turn, vide order dated 31.12.2020 issued the followingdirections:
“1. A Special Gram Sabha of the Gram Panchayat should be heldby secret ballot decision be taken on the no-confidence motionpassed against the Sarpanch of Karajkheda, Taluka Osmanabadon 19.10.2020. in this Gram Sabha, the only issue will be to approve A
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Athe no-confidence motion passed against the Sarpanch.”2. Group development officer, Class-1, Panchayat Samiti,Osmanabad is appointed as the Presiding Officer of this specialGram Sabha.
3. As per the relevant Acts, Rules and provisions in the letter ofBthe Government, the Group Development Officer, Class-1,Panchayat Samiti, Osmanabad, should complete the procedurefor holding the special Gram Sabha and submit the compliancereport to this office.
4. The decision should be communicated to all concerned and theCfile should be submitted in the record/archive room.”
4. Against the said decision, the matter was taken before the HighCourt by respondent No. 1 by way of Writ Petition (C) No. 238 of 2021.The learned Single Judge of the High Court allowed that writ petition interms of prayer clause (b). The effect of the order passed by the HighDCourt was to not only set aside the order passed by the Collector dated31.12.2020 but also resolution dated 19.10.2020.
5. Being aggrieved by this decision, the appellants have approachedthis court by way of present appeal. According to the appellants, theHigh Court ought not to have set aside the resolution passed by theGram Panchayat. At best, it ought to have directed to take follow upEsteps as required in terms of the decision of the Collector. In that, asheld by the Collector, no-confidence motion was required to be ratifiedby the Special Gram Sabha conducted in the village in the presence ofan Independent Officer appointed by the Collector.
6. Learned counsel for the respondent No. 1 would, however,Fsubmit that the resolution was moved on 19.10.2020 and as per theguidelines issued by the Rural Development Department, Governmentof Maharashtra dated 20.10.2020, the resolution was required to be placedfor consideration before the Special Gram Sabha at least within 10 daysfrom the date of Collector’s order and since that period has expired longGback, the process cannot be continued further and for which reason nointerference is warranted with the conclusion reached by the High Court.
7. Heard learned counsel for the parties.
8. From the indisputable facts, it is obvious that the direction issuedby the Collector in terms of order dated 31.12.2020, is in conformityHwith the relevant provisions of the Village Panchayat Act including amended Section 35-1A, which reads thus:
“35-1A. In respect of the panchayat to which the Sarpanch isdirectly elected under Section 30A-1A, the provisions of this sectionshall apply with the following modifications:- (a) in sub-section(1) for the words “one-third” the words “two-third” shall be substituted; (b) in sub-section(3) for the portion beginning with the words “ifthe motion” and ending with the words “against the Sarpanch”the following portion shall be substituted, namely:- “if the motion of no-confidence is carried by a majority of notless than three-fourth of the total number of the members whoare for the time being entitled to sit and vote at any meeting ofthe panchayat, the Sarpanch or the Upa-Sarpanch, as the casemay be, and ratified before the special Gram Sabha by thesecret ballot in the present and under the Chairmanship of theOfficer appointed for the purpose by the Collector, shallforthwith stop, exercising all the powers and, performing allthe functions and duties of the office and thereupon suchpowers, functions and duties shall vest in the Upa-Sarpanch.”
(c) for the fourth proviso, the following provisos shall be substituted,namely:- “Provided also that, no such motion of no-confidence shall bebrought within a period of two years from the date of electionof Sarpanch or Upa-Sarpanch and before the six monthspreceding the date on which the term of panchayat expires:
Provided also that, if the no-confidence motion fails, then nomotion shall be brought before the passage of time of next twoyears.”
9. Learned counsel for the respondent No. 1 is unable to point outany provision in the Act which postulates that if the proposed resolutionis not placed before the Gram Sabha within specified time, the samewould lapse in law. Thus, in absence of such a provision, it cannot beassumed that the resolution had lapsed in law, merely because of somedirection issued by the concerned department of Government ofMaharashtra. In the present case, the no-confidence resolution was A
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Achallenged by the respondent No. 1 before the Collector, before theprocess of ratification could be taken forward by the Collector. Afterthe decision of the Collector, the matter travelled to the High Court onceagain at the instance of the respondent No. 1 and finally before thisCourt. The respondent No. 1 cannot be allowed to take advantage ofthat situation by placing reliance on administrative instructions datedB31.12.2020. It necessarily follows that no confidence motion passed on19.10.2020 and confirmed by the Collector vide order dated 31.12.2020needs to be taken forward in accordance with law. For that, the SpecialGram Sabha will have to be convened forthwith for considering ratificationof the no-confidence motion passed on 19.10.2020.C
10. Accordingly, the impugned judgment and order passed by theHigh Court is set aside and the parties are relegated to the positionstated in the order passed by the Collector for complying with thenecessary formalities regarding ratification of the resolution passed on19.10.2020. The Collector shall do the needful expeditiously, as per theDstatutory scheme and the period specified therein.
11. Until such time, the post of Sarpanch be held by theUpasarpanch or such other order to be passed by the Collector as perlaw.
12. The Appeal is disposed of in the above terms.E13. Pending applications, if any, stand disposed of.
Bibhuti Bhushan Bose
Appeal disposed of.
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