Bombay High Court High Court

Subhash vs The Additional Commissioner on 13 August, 2008

Bombay High Court
Subhash vs The Additional Commissioner on 13 August, 2008
Bench: A. B. Chaudhari
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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
whom it is addressed or such person is not

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found, by giving it or tendering it to an adult
male member of his family who is residing

with him. If there is no such person to
whom notice can be given or tendered or

where the member, or as the case may be, in
his absence such adult male member, is
present but 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 the member ordinarily resides. If
none of the aforesaid modes of serving notice
is feasible, the notice shall be affixed, in the

presence 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 respective

members inclusive of the petitioner as a
result of which for infraction of mandatory

Rules 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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