Baliram Khandare and Others vs Additional Commissioner and Others

R.M. Savant, J.—Rule, with the consent of the parties, made returnable forthwith and heard.

The above petition filed under Articles 226 and 227 of the Constitution of India takes exception to the order dated 5/4/2011 passed by the Additional Commissioner, Amravati Division Amravati, by which the Appeal filed by the Respondent No. 5 herein against the order dated 17/2/2011 passed by the Additional Collector came to be allowed and resultantly the order passed by the Additional Collector came to be set aside.

The subject matter of the proceedings before the Additional Collector and the Additional Commissioner was the no wp1906.11.odt 3 confidence motion passed against the Respondent No. 5, who is the Sarpanch of village Bhosa, To. Mahagaon, Distt. Yavatmal. The requisition for holding a Special Meeting, which was to be held on 30/1/2011, was moved by five members and a notice in that respect was issued on 24/1/2011. The said Special Meeting was held on 30/1/2011 and the motion came to be passed by a majority of 5:2 against the Respondent No. 5. This resulted in the Respondent No. 5 approaching the Additional Collector by way of an application u/s 35(3B) of the Bombay Village Panchayats Act, 1958. It was the case of the Respondent No. 5 that the notice in question of the said Special Meeting was not served upon him. The said ground has been specifically raised by ground No. D in the memo of Appeal before the Additional Collector. The Additional Collector by his order dated 17/2/2011 rejected the said application filed by the Respondent No. 5 holding that the meeting in question was held in terms of the Rules and since Section the motion was carried by a majority of 5:2, the Respondent No. 5 could not continue as Sarpanch and hence rejected the said application.

Aggrieved by the said order dated 17/2/2011, the Respondent No. 5 filed an Appeal before the Additional Commissioner under 35(3C) of the said Act. The said Appeal came to be allowed by the Additional Commissioner by the wp1906.11.odt 4 impugned order dated 5/4/2011 and in so allowing the Appeal the Additional Commissioner took into consideration Rule 7 of the Bombay Village Panchayats Act, which existed prior to its amendment, which inter alias provides that in the absence of the member or if he is not found, the notice could be tendered to an "adult male member" of his family and since it was not so served, the meeting, wherein the no confidence motion was passed, was held to be in violation of the Rules and therefore the no confidence motion passed would be of consequence. The Appeal was resultantly allowed and the order passed by the Additional Collector was set aside.

During the course of the hearing of the above petition, the learned Counsel for the Petitioner sought to rely upon the amended provision of the Bombay Village Panchayats Act which now provides that it may be served on an "adult member" of the family. The learned Counsel further contended that since it was served on the sister in-law of the Respondent No. 5, it would have to be held that the service of notice was affected in accordance with the Rule in question. The learned Counsel for the Petitioner sought to rely upon the voters list prepared at the time of the Assembly Elections as also the report of the Talathi. The said material was admittedly not before the authorities below. In fact, the Additional Collector whilst deciding the Appeal has not even adverted to the ground on which the Respondent No. 5 had approached him u/s 35(3C) of the said Act. In so far as the Additional Commissioner is concerned, he has decided the Appeal on a wrong premise viz that he has decided the issue of service of notice on the touch stone of the Rule which had already undergone change wherein the words "an adult male member" of the family has been substituted by "adult member" of the family The Additional Collector has, therefore, oblivious of the said change decided the Appeal. It would also be pertinent to note that the material which the Petitioner now seeks to rely i.e. the voters list of the Assembly Elections, the report of the Talathi etc., was admittedly not before both the authorities below. In my view, therefore, considering the contentious issue as regards the service of notice on the Respondent No. 5, it would be just and proper to set aside the order dated 17/2/2011 passed by the Additional Collector as well as the order dated 5/4/2011 passed by the Additional Commissioner and relegate the matter back to the Additional Commissioner for a de novo consideration of the application filed before him by the Respondent No. 5 on the basis of the material that is now placed on record. Hence, the following directions.

(i) The order dated 17/2/2011 and 5/4/2011 passed by the Additional Collector and the Additional Commissioner respectively are quashed and set aside and the matter is relegated back to the Additional Collector for a de novo consideration.

(ii) The Additional Collector would consider the material that is now sought to be relied upon by the Petitioner in the present petition i.e. the voters list prepared for the Assembly Election, report of the Talathi as also the documents that are filed by the Respondent No. 5 i.e. the Ration Card, Assessment List, Tax Receipt issued by the Grampanchayat in respect of the house owned by the Respondent No. 5 as well as his brother.

(iii) The parties to appear before the Additional Collector on 8/8/2011. The Additional Collector thereafter to decide the proceedings within a period of two months from the first appearance of the parties. The Additional Collector would be well advice to deal with the contentions that would be raised before him.

Rule is accordingly made absolute in the aforesaid terms with parties to bear their respective costs.