Ramdas and Others vs The Additional Collector and Others

R.K. Deshpande, J.—Rule, made returnable forthwith. Heard finally by consent of the learned counsels appearing for the parties.

The challenge in this petition is to the order dated 8-6-2015 passed by the Additional Collector, Akola, setting aside the no confidence motion passed on 10-12-2014 against the respondent No. 4, who was a Sarpanch. The Additional Collector has held that the notice of the meeting was issued on 6-12-2014 and it was carried by the Talathi for service upon the respondent No. 4. When the Talathi approached the house of the respondent No. 4, he was informed by one Priya Rahul Kawde, the niece of the respondent No. 4, that the respondent No. 4 was out of station. The notice was, therefore, received by the said Priya Rahul Kawde, who was minor, and hence the service of notice on the respondent No. 4 was not properly done. Thus, the no confidence motion passed against the respondent No. 4 has been set aside by the Additional Collector.

The notice of no confidence motion is required to be served in the manner prescribed under Rule 2(2-B) of the Bombay Village Panchayats Sarpanch and Up-Sarpanch (No Confidence Motion) Rules, 1975. Sub-rule (2-B) of Rule 2 of the Rules of 1975 being relevant, is reproduced below :

"(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 delivering or tendering it to any adult member of his family residing with him; and if no such 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 be served or tendered or delivered to the concerned Sarpanch or Upa-Sarpanch."

In terms of the aforesaid sub-rule (2-B) of Rule 2 of the Rules of 1975, every notice of no confidence motion against the Sarpanch issued under sub-rule (1) is required to be served by delivering or tendering it to the Sarpanch to whom it is addressed or, where such person cannot be found, by delivering or tendering it to any adult member of his family residing with him; and if no such adult member can be found or, where the 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 ordinarily dwells.

In the decision of this Court in the case of Subhash Rambhau Doifode & ors. v. Additional Commissioner & ors., reported in 2009(Suppl) Bom.C.R. 770, it has been held that the burden is upon the person coming before the Court challenging the no confidence motion to plead and prove the necessary facts. It has been held that in the absence of pleading that the adult member in the family was present in the house and still there was no attempt to tender it to such adult member, no amount of evidence can be adduced. In the present case, it was, therefore, necessary for the respondent No. 4 to have come forward in her appeal filed before the Additional Collector with a pleading that though she was out of station during the period from 4-12-2014 to 10-12-2014, some adult member in her family was present in the house, but in spite of it, the notice was neither delivered or tendered to such adult member nor was affixed on the outer door of the house, in the absence of the adult member being present in the house. Such is not the pleading in the memo of appeal filed by the respondent No. 4 before the Additional Collector. It is not disputed that the notice was sent on the address of the respondent No. 4 available in the office of Village Panchayat. It was, therefore, not permissible for the respondent No. 4 to come forward with a challenge that the notice was served upon the minor member in her family. In the absence of any such pleading and proof of existence of some other adult member in the family, the Additional Collector could not have interfered with the no confidence motion passed against the respondent No. 4. The impugned order cannot, therefore, be sustained.

In the result, the petition is allowed. The order dated 8-6-2015 passed by the Additional Collector, Akola, in Case No. Maharashtra Gram Panchayat Act-1959-Section-35(3)(b)/Chondhi/7/2014-15, is hereby quashed and set aside. The appeal filed by the respondent No. 4 is dismissed.

Rule is made absolute in above terms. No order as to costs.