Dismissed

Shaikh Salim Pasha Khaja Pasha v. the Divisional Commissioner Aurangabd and Ors.

Bombay HC8 Nov 2011WP/7293/2011

Case brief

AI extract

What is this about?

Petitioners challenging quashing of their no confidence motions as Sarpanches. Court held that while Meetings Rules 1959 apply, lack of named proposer/seconder rendered non-mandatory directory rules not vitiated. Majority will respected; petitions dismissed but stay granted for 10 days to prevent new election.

What did the court decide?

Writ petitions dismissed; interim stay of judgment for status quo maintained for 10 days to prevent declaration of election.

Shaikh Salim Pasha Khaja Pasha Vs the… — Labour and Industrial Disputes | Bombay HC (2011)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 7293 OF 2011

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Shaikh Salim Pasha Khaja Pasha .. Petitioner

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Versus

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The Divisional Commissioner Aurangabad and others .. Respondents

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Shri N. L. Jadhav, Advocate for the Petitioner. Shri S. B. Pulkundwar, A.G.P. for the Respondent/State. Shri S. S. Thombre, Advocate for Respondent Nos. 6, 11 and 15.

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WITH

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WRIT PETITION NO. 7474 OF 2011

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Kalyan Govindrao Patil .. Petitioner

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Versus

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The State of Maharashtra and others .. Respondents

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Shri Yuvraj V. Kakade, Advocate for the Petitioner. Shri S. B. Pulkundwar, A.G.P. for the Respondent/State. Shri V. D. Gunale, Advocate for Respondent Nos. 5 to 10.

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CORAM : S. V. GANGAPURWALA, J. DATE : 08 TH NOVEMBER, 2011.

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PER COURT :

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. Both the petitions involve common question of law, as such are decided together.

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In Writ Petition No. 7293/2011, the petitioner is a Sarpanch of Neknur Gram Panchayat. The respondent Nos. 4 to 18 of the said petition moved a motion of no confidence against the petitioner. Pursuant thereof the Tahsildar Beed called for special meeting of the members of the Gram Panchayat, Neknur. The motion of no confidence against the petitioner was passed in the said meeting held on 16.06.2011. The said gram panchayat consists of seventeen members. Fifteen members voted in favour of motion of no confidence. The no confidence motion was passed by more than two-third majority. The petitioner approached the Additional Collector, Beed. The Additional Collector rejected the application filed by the petitioner against the said no confidence motion. Against the said judgment the petitioner filed an appeal before the Divisional Commissioner, Aurangabad. The Divisional Commissioner, Aurangabad confirmed the said judgment of the Additional Collector and dismissed the appeal. The petitioner has assailed the said orders in the present petition.

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The petitioner in Writ Petition No. 7474/2011 was elected as

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a Sarpanch of Gram Panchayat Mewapur. The said Gram Panchayat consists of seven members. The respondent Nos. 5 to 9 in the said petition filed requisition of no confidence motion against the petitioner. The Tahsildar called for special meeting. The same was held on 20th May, 2011. In the said meeting the no confidence motion was passed. Six members voted in favour of the motion of no confidence, as such the same was passed by more than two-third majority. The petitioner therein approached the Additional Collector. The Additional Collector rejected the petition filed by the petitioner against the said no confidence motion. Aggrieved thereby the petitioner filed an appeal before the Divisional Commissioner. The Divisional Commissioner dismissed the appeal confirming the order of the Additional Collector. Aggrieved thereby the petitioner has filed the present writ petition.

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Shri N. L. Jadhav, the learned counsel for the petitioner in Writ Petition No. 7293/2011 and Shri Yuvraj Kakade, the learned counsel for the petitioner in Writ Petition No. 7474/2011 with all their persuasive skill put forth following propositions :

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A. The Bombay Village Panchayats (Meetings) Rules 1959 are applicable to the special meeting convened to

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discuss the motion of no confidence against the Sarpanch. For the said purpose the learned counsel rely on the judgment of the Full Bench of this Court in a case of Viswas Pandurang Mokal Vs. Group Gram Panchayat

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Shihu and others reported in 2011(3) Bom. C. R. 495 .

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B. The debate has to take place on the motion of no confidence and an opportunity has to be given to all the members including the Sarpanch to speak on the subject. The petitioners were not given the opportunity to speak on the subject, nor any debate had taken place. The learned counsel rely on the judgment of the Division Bench of this Court in a case of Shri Ashok Krishnakant Mehta Vs.

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State of Maharashtra and others reported in 2000(3) All MR 772 and another judgment of the learned Single Judge of this Court in a case of Mr. Nivrutti Kashinath Bansode and another Vs. Gramsevak, Grampanchayat, Nazara and others in Writ Petition No. 6873 of 2008 .

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C. The motion has to be moved or seconded. In absence of the same, the meeting vitiates. The said Rules i. e. Rule 10, 14, 17 to 28 of the Bombay Village Panchayats

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(Meetings) Rules 1959 are mandatory. In the present cases, in the special meeting held none had proposed the motion, nor had seconded it. In absence of the same, the meeting was not valid and the motion of no confidence passed therein cannot be sustained. The learned counsel rely on the judgment of the learned Single Judge of this Court in a case of Vijay Ramchandra Katkar Vs. Grup Gram Panchayat Pali reported in 2010(4) All MR 707 So also the judgment in a case of Govind Nivrutti Hipparkar Vs. Tahsildar, Taluka Sangole and others reported in 2010 (Supp.) Bom.C.R. 489 .

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Per contra Shri Thombre, the learned counsel for the respondent Nos. 6, 11 and 15 in Writ Petition No. 7293/2011 and Shri Gunale, the learned counsel for respondent Nos. 5 to 10 in Writ Petition No. 7474/2011 supported the judgments and submitted following propositions :

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A. The petitioners have lost the confidence of the majority of the members of the Gram Panchayat.

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B. No prejudice is caused to the petitioner only because in the said special meeting nobody is named as proposer or

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seconder of the said meeting and when no prejudice is caused, it cannot be said that there is any illegality. The meeting cannot be held to be illegal on the said count. The learned counsel rely on the judgment of the Division Bench of this Court in a case of Chandrakala Vaijanathrao Ghatul Vs. Kathalu Maroti Hatagale and others reported in 2008(6) Bom. C. R. 619 .

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B. The will of the majority must be honoured and it has to be respected. For the said purpose the learned counsel rely on the judgment of the Division Bench of this Court in a case of Nimba Rajaram Mali Vs. Collector, Jalgaon and others reported in 1999(1) Bom. C. R. 546 .

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C. The Bombay Village Panchayats (Meetings) Rules 1959 do not apply to the meeting convened for passing no confidence motion against the Sarpanch. For the said purpose the learned counsel rely on the judgment of the Division Bench of this Court in a case of Hindurao Dnyanu Shirtode and another Vs. The State of Maharashtra and others reported in 1999(1) Bom. C. R. 153 and another judgment of the learned Single Judge of

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this Court in a case of Shital Sudhir Sanavle Vs. Group Gram Panchayat and others reported in 2003(4) Bom.

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C. R. 31.

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D. In a democratic set up a person is expected to respect the mandate of majority and when no prejudice is pointed out by alleged departure from the procedural requirement, the mandate of majority cannot be interfered with lightly. The learned counsel rely on the judgment of the learned Single Judge of this Court in a case of Prabhawati Vijaykumar Khivsara Vs. State of Maharashtra and others reported in 2008(2) Mh. L. J. 274 .

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Before adverting to the arguments canvased by the learned counsel, it would be relevant to refer to the provisions of the Statute and the Rules governing the meeting and relied by the learned counsel.

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THE BOMBAY VILLAGE PANCHAYATS ACT,

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1958

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..................

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35. Motion of no confidence :- [(1) A motion of no confidence may be moved by not less than [one-

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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].

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(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).

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(3) If the motion is carried by [a majority of 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, the Sarpanch or the Upa-Sarpanch, as the case may be, shall cease to hold office after seven days from the date on which the motion was carried unless he has resigned earlier or has disputed the validity of the motion so carried as provided in sub-section (3-B); and thereupon the office held by such Sarpanch or Upa-Sarpanch shall be deemed to be vacant.

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[Provided that, where the office of the Sarpanch being reserved for a woman, is held by a woman Sarpanch, such motion of no-confidence shall

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be carried only by a majority of not less than threefourth of the total number of the members who are for the time being entitled to sit and vote at any meeting of the Panchayat.]

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[Provided further that] no such motion of no confidence shall be brought within a period of six months from the date of election of Sarpanch or Upa-Sarpanch.

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THE BOMBAY VILLAGE PANCHAYATS (MEETINGS) RULES, 1959

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..............

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.............

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17. (1) A member who has given notice of a motion shall, when called on either ------

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(a) state that he does not wish to move the motion, or

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(b) move the motion in which case he shall commence his speech by a formal motion in the terms appearing on the list of business, after the motion is duly seconded.

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(2) If a member when called is absent, any other member may, with the permission of the person presiding, move the motion standing in the name of the absent member, if permission is not granted to the other member to move the motion, the motion shall lapse.

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18. After a motion has been moved and seconded the person presiding shall propose the question by reading the motion for the consideration of the panchayat.

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19. After a motion has been moved and seconded it shall not be withdrawn or altered in substance, except with the consent of the member who seconded it.

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20. (1) After a motion has been proposed and seconded any, member may propose an amendment thereto.

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(2) Every amendment must be relevant to, and within the scope of, the motion to which it relates.

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(3) No amendment shall be moved which has merely the effect of a negative vots.

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[(3-A)(a) An amendment to an amendement may be moved with the permission of the person presiding.

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(b) When an amendment to an amendment is moved, the amendment sought to be amended shall, so long as the amendment by which it is sought to be amended is under discussion, be deemed to be the substantive motion before the meeting.]

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(4) An amendment in the alternative shall

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not be moved.

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(5) Any number of amendments may be moved to the same motion but no member shall move more than one amendment to the same motion.

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(6) The person presiding may disallow any amendment which is, in his opinion, irrelevant or frivolous.

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The arguments of the learned counsel for respondents that the Bombay Village Panchayats (Meetings) Rules, 1959 (hereinafter referred to as "Meetings Rules 1959" for the sake of brevity) do not apply to the special meeting convened to discuss the motion of no confidence against the Sarpanch and the UpaSarpanch is not sustainable in view of the decision of the Full Bench of this Court in a case of Viswas Pandurang Mokal referred supra. In view of the judgment of the Full Bench, it will have to be held that the provisions of the Meetings Rules 1959 apply to the meeting convened U/Sec. 35 of the Bombay Village Panchayats Act 1958 (hereinafter referred as "Panchayat Act" for the sake of brevity).

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The contention of the petitioners that no debate had taken place in respect of motion of no confidence and the petitioners were not given opportunity to speak on the subject

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cannot be accepted. The Additional Collector and the Divisional Commissioner in their judgments have held that the petitioners were given necessary opportunity, so also the debate and discussion on the subject had taken place in the said special meeting. Moreover, the proceedings also show that the discussion and the debate on the subject had taken place in the said special meeting, so also the petitioners were given opportunity to speak. In view of the above, I am not inclined to accept the contention of the petitioners in this regard, nor any perversity in recording of the proceedings of the meeting have been brought on record. In view of the above, the authorities relied upon by the learned counsel for petitioners on the point of right to debate need not be discussed.

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This now, takes us to the moot question as to effect for non compliance of Rules, more particularly the Rule requiring the motion to be moved and seconded by the persons. The Ful Bench of this Court in a case of Viswas Pandurang Mokal referred supra has held that the Meeting Rules 1959 apply. But has further stated that they are not deciding as to whether the said Rules are directory or mandatory.

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In the present cases, perusal of the proceedings of the

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meeting, it is clear that motion was put to debate, opportunity was given to all the members including the petitioners to put forth their views. But at the same time, there was no proposer or seconder named in the said proceedings, i. e. it is nowhere stated as to who has proposed and seconded the said motion.

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Perusal of Section 35 of the Panchayat Act, it is manifest that motion of no confidence may be moved by not less than onethird of total number of members who are entitled to sit and vote after giving such notice thereof to the Tahsildar. It further lays down that such a notice once given shall not be withdrawn. Within seven days from the date of receipt of the notice, the Tahsildar has to convene a special meeting of the Panchayat for considering the motion of no confidence and 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. The Statute further lays down that if the motion is carried by a majority of not less than two-third of the total number of 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 cease to hold office after seven days from the date of which the motion was carried

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unless he has resigned earlier or has disputed the validity of the motion.

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The Statute only mandates that in the special meeting which is convened by not less than one-third of the members, the Sarpanch or the Upa-Sarpanch as the case may be shall have right to speak, take part in the proceedings at the meeting and shall have right to vote on the said motion. Apart from the same no further requirement is stated.

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The Rules framed which are a part of delegated piece of legislation has to supplement the statute and not supplant the statute. The meeting Rules are framed for smooth functioning of the meeting. Merely because the Rule prescribes a proposer and seconder for moving the motion in the meeting, the non compliance thereof would not ipso facto vitiate or invalidate the meeting. The said Rule about the motion being moved by a proposer or seconded cannot be read to be mandatory, but the same will have to be read as directory.

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The question as to whether the Statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern and these are to be

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ascertained not only from the phraseology of the provision, but also by considering its nature, its design and the consequences which would follow from construing it, the one way or the other. The impact of the other provisions whereby the necessity of complying with the provisions in question is avoided and above all whether the object of the legislation will be defeated will also have to be considered. If the object of the enactment will be defeated by holding the same as mandatory, it will be construed as directory.

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Referring to Section 35 of the Statute, it is clear that the motion of no confidence has to be moved by not less than onethird of the total number of members. It is not at the sweet will and pleasure of an individual member a motion of no confidence can be moved. But it is to be collectively moved by not less than one-third number of members who for the time being in force are entitled to sit and vote. When the motion of no confidence itself is moved by not less than one-third number of members, then it would be inconsequential and irrelevant to start a meeting by saying that one person should be a proposer and another a seconder. Taking into account this aspect also it can be held that the said rule is directory. Further the Division Bench of this Court in a case of Smt. Annapurnabai Ajabrao Vs.

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Annapurnabai Anandrao reported in 1 967 Mh. L. J. NOC 36

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has observed thus :

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"Even if it were to be assumed that there was some technical flaw in the proceedings of the meeting or in transmission of the results of the meeting to the Panchayat Samiti, we do not see how that could entitle the petitioner to claim to continue as Sarpanch of the Gram Panchayat. A Gram Panchayat is essentially a democratic institution which must be run on democratic principles. When the majority of the members have clearly expressed that they do not desire the petitioner to be their leader and Sarpanch, appropriate attitude of the petitioner as a person working for democracy whatever have been to tender her registration straightway. At any rate, it does not behave of democratic spirit to challenge the decision of the majority who unmistakably declared their want of confidence in their erstwhile leader."

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The Apex Court in a case of K. Narasimhiah Vs. H. C. Singri Gowda and others reported in AIR 1966 S. C. 330 had held that provisions regarding giving of three days notice for a special meeting to discuss resolution to express no confidence is directory and if some of the Councillors received less than three clear days' notice of the meeting of no confidence motion it by itself would not make the proceedings of the meeting or the resolution passed there invalid.

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In both the writ petition, the petitioners have lost the confidence of the overwhelming majority of the House. The will of the majority will have to be honoured and respected. As discussed above, the said Rules 17 and 18 being directory, the non compliance of the same would not vitiate the meeting.

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The mandatory requirement that, the petitioners were allowed to speak, participate in the proceedings and allowed to vote have been complied and the non compliance of the Rules 17 and 18 of the Meetings Rules 1959 would not vitiate or invalidate the proceedings of the meeting, inter alia the resolution passed.

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In view of the above, the writ petitions being sans merit are dismissed.

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Sd/-

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[ S. V. GANGAPURWALA, J. ]

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At this stage, Mr. Yuvraj V. Kakade, the learned counsel for the petitioner in Writ Petition No. 7474/2011 seeks stay of the present Judgment for the period of two ( 2 ) weeks . The learned counsel for the respondent opposes the said request and submits that all the Courts have concurrently held about the validity of the No Confidence Motion and the petitioner has

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lost the confidence of the majority of the members of the Gram Panchayat.

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Initially, when the writ petitions were being heard, interim order was passed directing status-quo to be maintained. For the period of ten ( 10 ) days from today, the election for the post held by the petitioner in Writ Petition No. 7474/2011 shall not be declared.

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Sd/- [ S. V. GANGAPURWALA, J. ]

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bsb/Nov. 11

Shaikh Salim Pasha Khaja Pasha v. the Divisional Commissioner Aurangabd and Ors.

Case brief

What is this about?

What did the court decide?

Shaikh Salim Pasha Khaja Pasha v. the Divisional Commissioner Aurangabd and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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