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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : N A G P U R.
WRIT PETITION NO. 2209 OF 2008
1. Subhash s/o Rambhau Doifode,
Agriculruist, r/o Anhera,
Tah. Deulgaon Raja.
2. Bhanudas Pundlik Sanap,
Member, Gram Panchayat Andhera,
3. Prabhakar Punjaji Munde,
Member, Gram Panchayat Andhera,
4. Sk. Babbu Sk. Kadar,
Member, Gram Panchayat Andhera,
5. Sheshrao Sakharam Kayande,
Member, Gram Panchayat Andhera,
6. Sau. Dropadabai Ramesh Sanap,
Member, Gram Panchayat Andhera,
7. Sau. Kalpana Ravindra Ingle,
Member, Gram Panchayat Andhera,
8. Sau. Shantabai Dadarao Doifode,
Member, Gram Panchayat Andhera,
Tah. Deulgaon Raja,
District Buldana. ... PETITIONERS.
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VERSUS -
1. The Additional Commissioner,
Amravati Division, Amravati.
2. The Additional Collector,
Buldana.
3. Tahsildar, Deulgaon Raja.
4. Secretary,
Gram Panchayat, Andhera,.
5. Santosh Gunaji Nagare,
Sarpanch, Gram Panchayat, Andhera,
6. Sau. Vandana Gajanan Tejankar.
7. Sau. Ranjana Madhav Sanap
8. Ravindra Sukhdeo Sanap
All members of Gram Panchayat Andhera,
Tah. Deulgaon Raja,
District Buldana. ... RESPONDENTS.
.....
Mr.R.N. Ghuge Advocate for the Petitioners.
Mrs. S.S. Wandile , A.G.P., for Respondents 1 to 3.
Mr. P.B. Patil Advocate for Respondent no.5.
.,...
CORAM : A.B. CHAUDHARI, J.
RESERVED ON : 24.07.2008.
PRONOUNCED ON : 13.08.2008.
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JUDGMENT :
Rule. Heard forthwith by consent of learned
counsel for the parties. Heard Mr.Ghuge for the
petitioners, Mrs.Wandile, A.G.P., for respondents 1 to 3 and
Mr.Patil for respondent no.5.
2. This writ petition is directed against the order
dated 5.2.2008 passed by the Additional Commissioner,
Amravati Division, Amravati, dismissing the appeal filed
under the Bombay Village Panchayats Act, confirming the
order of Additional Collector, Buldana, setting aside the
motion of no confidence.
2. Petitioners are the elected members of Gram
Panchayat Andhera comprising out 12 members. Out of 12
members, seven members issued notice dated 11.7.2007 to
the Tahsildar Deulgaon Raja for moving a motion of no
confidence against respondent no.5- Sarpanch. The
Tahsildar issued a notice of special meeting for considering
the motion of no confidence against respondent no.5.
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Respondent no.5 avoided to accept the said notice dated
11.7.2007 and the meeting was convened on 17.7.2007 at
2-00 p.m. Therefore, the concerned Talathi affixed the
notice on the door of the house of respondent no.5 in
presence of two witnesses. On 17.7.2007 nine members
out of twelve, attended the meeting and motion of no
confidence was passed against respondent no.5 by ratio of
8 : 1. Respondent no. 5 filed a dispute under Section 35 of
the Bombay Village Panchayats Act, 1958 before the
Collector and challenged the validity of the motion of no
confidence mainly on the ground that there was no proper
service of notice on him. In support of his case, he filed
affidavit dated 3.8.2007 of the panch witnesses who stated
that the notice was not affixed at the door of the house of
respondent no.5 and their signatures were taken by the
Talathi near the bus stand. Subsequently the same
witnesses had sworn in affidavit dated 13.8.2007 affirming
that the notices were served in their presence by affixing
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the same on the house of respondent no.5. The Additional
Collector accepted the affidavits filed by the panch
witnesses first in point of time and held that there was no
proper service of notice in accordance with law and
therefore the motion of no confidence was vitiated. The
appeal preferred by the petitioners before the Additional
Collector came to be dismissed. Hence this writ petition.
3. Mr.Ghuge, learned counsel for the petitioners,
argued that the courts below erred in merely relying upon
the affidavits dated 3.8.2007 filed by the panch witnesses
only on the ground that those affidavits being first in point
of time were required to be given preference to the
subsequent affidavit dated 13.8.2007 in which the version
was to the contrary. He further argued that respondent
no.5 who filed the dispute, vaguely stated in the dispute
petition about the ground on which ultimately both the
impugned decisions have been taken. The dispute
therefore clearly suffered from the vice of inappropriate and
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inadequate pleadings and therefore filing of affidavits on
3.8.2007 and acceptance thereof by the courts below is
absurd. He then argued that respondent no.5 having lost
the majority had absolutely no cause or reason to cling to
the office of Sarpanch when eight members out of 12 voted
against him. It cannot be believed that he did not know
about the proposed meeting of 17.7.2007 during the six
days, i.e. from the date of notice 11.7.2007 to 17.7.2007.
He, therefore, prayed for quashing of the impugned order.
4. Per contra, Mrs.Wandile, A.G.P., supported the
impugned order. Mr. P.S. Patil, learned counsel for
respondent no.5, vehemently opposed the writ petition and
invited my attention to Rule 7 of the Bombay Village
Panchayats (Meetings) Rules, 1959. The said Rule is
quoted below :
“Every notice under these rules shall, if
practicable, be served personally by
delivering or tendering it to the member to
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7found, by giving it or tendering it to an adult
male member of his family who is residingwith him. If there is no such person to
whom notice can be given or tendered orwhere the member, or as the case may be, in
his absence such adult male member, is
present but refuses to accept the notice, itshall be served by affixing it, in the presence
of two witnesses, on the outer door or some
other conspicuous part of the house inwhich the member ordinarily resides. If
none of the aforesaid modes of serving notice
is feasible, the notice shall be affixed, in thepresence of two witnesses, on some
conspicuous part of the house in which the
member is known to have resided or carried
on business or personally worked for gain.”
5. Relying on this Rule, Mr.Patil argued that the
notice shall be delivered personally to the member or the
person concerned. If he is not found then the same has to
be tendered to the adult male member of the family. If no
such person is available then the same shall be affixed in
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the presence of two witnesses on the outer door of the
house on the conspicuous part of the house. On the basis
of this provision, he argued that neither the concerned
Talathi nor the petitioners have showed that any attempt
was made to serve the notice on a adult member in the
family. There is no report to that effect. He argued that the
evidence of two panch witnesses in the form of affidavits
dated 3.8.2007 clearly show that no such notice was at all
affixed in their presence and those affidavits being first in
point of time, no fault could be found out with the courts
below to ignore the subsequent affidavits filed after ten
days by them to the contrary. These findings of fact cannot
be examined in the writ jurisdiction of this Court. He then
argued that not only respondent no.5 but other persons,
i.e. no. 6 to 8 were also similarly not served with the notice
of the meeting. He relied on the decision of this Court in
Sou. Indubai w/o Vedu Khairnar v. State of Maharashtra
reported in 2002(4) ALL MR 110 (ii) 2003(1) Mh.L.J. 420
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and (iii) Rachapalli Abbulu v. State of A.P. – AIR 2002 SC
1805.
6. I have gone through the copy of dispute
reference that was filed before the Collector by respondent
no.5. The dispute does not narrate any facts. The only
ground taken in the dispute in respect of which arguments
have been advanced before me, is numbered 6 and reads
thus :
“Further more there is no proper service of
the notices served upon the respectivemembers inclusive of the petitioner as a
result of which for infraction of mandatoryRules and Principles of natural justice, the
motion is vitiated.”
6. In my opinion, the proceedings of dispute being
of plenary in nature, at the most minimum required
adequate and appropriate facts ought to be pleaded in
support of the dispute. Respondent no.5 being the
disputant, who challenged the motion of no confidence
against him, was bound to discharge the initial burden of
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proof and that could not be done by inadequate and
inappropriate pleadings or on a vague ground, that is
ground no.6. The evidence may be in the form of affidavit,
or as the case may be, could well be appreciated in the light
of the pleadings of the parties. In the instant case, there is
no foundation in the form of minimum required pleadings
and consequently respondent no.5 failed discharge initial
burden of proof. In order to appreciate the contention
raised by Mr.Patil that there is violation of Rule 7 relating
to service of notice of meeting, I find that there is no
pleading whatsoever that the adult member from the house
of respondent no.5 was present in the house and still there
was no attempt to tender it to such adult member. No
affidavit or evidence of any adult member of the house, who
according to respondent no.5 was present in the house,
was filed or adduced before the Collector nor such a
person was put to the test of cross-examination. There is
no pleading or explanation on record as to where
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respondent no.5 had gone from 11.7.2007 to 17.7.2007. It
is not his case that he did not return to his village or house
from 11.7.2007 to 17.7.2007 or that he never noticed the
said notice of meeting affixed on the outer door of his
house. It is not his case that such notice was not at all
pasted on his house. On preponderance of probabilities, it
is difficult to believe that respondent no.5- Sarpanch of the
village for no cause or reason would remain absent from a
small village during this period of six days.
7. The only evidence relied on by respondent no.5
is in the form of affidavit dated 3.8.2007 of the two panch
witnesses. But it cannot be forgotten that the same panch
witnesses after ten days filed affidavits to the contrary. It is
difficult to understand as to how the courts below chose to
rely upon such panch witnesses who had no regard for the
truth who went on filing contrary affidavits in a span of ten
days. To say the least, the testimony of such witnesses in
the form of affidavits was wholly unreliable and
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untrustworthy and ought to have been outrightly rejected.
There was no other evidence placed by respondent no.5 in
support of his case. No affidavit of other persons, i.e.
respondents 6 to 8 were filed on record in respect of whom
respondent no.5 claimed that they also did not receive the
notices. Evidence of said persons was also not tendered. I
do not want to convey that strict rules of pleadings are
required to be followed in such cases. But the case in hand
suffers from vice of absence of minimum pleadings to
enable the authorities below to appreciate the pleadings as
well as evidence tendered before it. Such cases are
ultimately to be decided on preponderance of probabilities.
In my opinion, this is manifest error which the authorities
below have committed and writ jurisdiction can certainly
be exercised to correct such basic errors. The motion of no
confidence was passed by eight member out of 12 against
respondent no.5, i.e. by 2/3rd majority and it could not be
set aside on such flimsy ground raised by respondent no.5.
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The decision cited by Mr.Patil in the case of Sou. Indubai is
clearly distinguishable on facts and is not even nearer to
the instant case on facts. As regards the decision in AIR
2002 SC 1805, supra, in my opinion, the same will have no
application because respondent no.5 was duly served but
he himself took the risk of not attending the meeting of no
confidence motion. In the result, I find that the impugned
orders are illegal. Hence the following order.
8. Writ petition is allowed. Impugned orders are
quashed and set aside. Rule is made absolute in terms of
prayer (i) and (ii) of writ petition. Respondent no.3 is
directed to hold election to the post of Sarnpanch, Gram
Panchayat, Andhera, immediately. Respondent no.5 shall
pay the costs of Rs.5,000/- (Rs. Five thousands only) to the
petitioners within four weeks from today. Rule accordingly.
JUDGE
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/TA/
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