Bombay High Court
Baliram Ramkisan Bodkhe And ... vs Additional Collector, Washim And ... on 5 July, 2016
Bench: Z.A. Haq
Judgment 1 wp2834.16+1.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 2834 OF 2016
WITH
WRIT PETITION NO. 2835 OF 2016
1. Baliram Ramkisan Bodkhe,
Aged about : Adult, Occu.: Member,
2.
Sau. Rekhabai Subhash Bodkhe,
Aged about : Adult, Occu.: Member,
3. Parvatabai Vishnu Bodkhe,
Aged about : Adult, Occu.: Member,
4. Annapurnabai Suresh Sable,
Aged about : Adult, Occu.: Member,
All R/o. Bhapur, Tq. Risod, Dist. Washim.
.... PETITIONERS.
// VERSUS //
1. Additional Collector, Washim,
Tq. Dist. Washim.
2. Tahsildar, Risod, Tq. Risod,
Dist. Washim.
3. Sau. Geeta Namdeo Bodkhe,
Aged about : Adult, Occu.: Sarpanch,
Gat Gram Panchayat, Bhapur -Tandulwadi,
Tq. Risod, Dist. Washim.
4. Bhagwan Ruprao Bodkhe,
Aged about : Adult, Occu.: Member,
Gat Gram Panchayat Bhapur-Tandulwadi,
Tq. Risod, Dist. Washim.
::: Uploaded on - 16/07/2016 ::: Downloaded on - 30/07/2016 08:17:22 :::
Judgment 2 wp2834.16+1.odt
5. Sau.Kalpana Govind Deshmukh,
Aged about : Adult, Occ.: Member,
Gat Gram Panchayat, Bhapur-
Tandulwadi, Tq. Risod, Dist. Washim,
Res. No.3 to 5 R/o. Bhapur, Tq.Risod,
Dist. Washim.
.... RESPONDENTS
.
___________________________________________________________________
Shri S.D.Chande, Advocate for Petitioners.
Shri H.R.Dhumale, A.G.P. for Respondent Nos. 1 & 2.
Shri S.S.Dhengale, Advocate for Respondent Nos. 3, 4 and 5.
___________________________________________________________________
CORAM : Z.A.HAQ, J.
DATED : JULY 05, 2016.
ORAL JUDGMENT :
1. Heard learned advocates for the respective parties.
2. RULE. Rule made returnable forthwith.
3. The petitioners-members of the Gram Panchayat moved No
Confidence Motion against the respondent No.3-Sarpanch and the
respondent No.4-Up-Sarpanch. Out of 7 members of the Gram Panchayat,
there is identity dispute in respect of the respondent No.5-Sau. Kalpana
Govind Deshmukh. The election of Sau. Kalpana Govind Deshmukh is
challenged in Election Petition No. 1 of 2012 on the ground that in fact she is
'Nirmala Govind Deshumkh' and not 'Kalpana Govind Deshmukh'. It is the
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claim in the election petition that Kalpana Govind Deshmukh died on 4th
September, 2009 and Nirmala Govind Deshmukh, who has subsequently
married with Govinda Bhagwan Deshmukh (husband of Kalpana) has used
the identity of deceased Kalpana and the photo ID of Kalpana Govind
Deshmukh for contesting the election. The learned Civil Judge has passed
an order on 20th December, 2012 in Election Petition No. 1 of 2012
restraining Nirmala Govind Deshmukh (Non-applicant No.1 in Election
Petition) from participating as Kalpana Govind Deshmukh in the election
process of Sarpanch and Up-Sarpanch till decision of the election petition.
The learned Civil Judge has directed that Kalpana Govind Deshmukh with ID
No. S.J.A. 2242972 only should be allowed to cast her vote and any other
person should not be allowed to cast vote in the name of Kalpana Govind
Deshmukh holding ID S.J.A. 2242972.
4. In the meeting held on 9th March, 2016 no confidence motion
is passed by 4 : 2.
The respondent Nos.3 to 5 filed appeal before the Additional
Collector challenging the resolution by which no confidence motion is passed
against Sarpanch/ Up-sarpanch. One of the contentions of the respondent
Nos. 3 to 5 was that the notice of motion of no confidence, required to be
given as per Section 35 of the Maharashtra Village Panchayats Act, 1958, has
to be given to the Tahsildar, but in the present case the notice was given to
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Naib Tahsildar who convened the meeting. It is submitted that the
convening of meeting by the Naib Tahsildar is not in consonance with the
provisions of Section 35 of the Maharashtra Village Panchayats Act, 1958 and
therefore, no confidence motion passed against him is unsustainable.
The issue is covered by the judgment given by the Division
Bench of this Court in the case of Chandrakalabai Vs. Balaji Shahaji, reported
in 2000(1) Mh.L.J. 73. It is undisputed that the Tahsildar was on leave and
Naib Tahsildar was holding charge of the post of Tahsildar.
In view of the proposition laid down in the judgment given in
the case of Chandrakalabai (supra) it has to be held that the notice given to
the Naib Tahsildar and convening of meeting by the Naib Tahsildar cannot be
faulted with.
5. The other ground on which the legality of the resolution was
challenged by the respondent Nos. 3 to 5 is that out of 7 members, 1 member
i.e. respondent No.5 Kalpana Govind Deshmukh was not permitted to
participate in the proceedings to cast her vote. It is submitted that the
Presiding Officer has calculated 2/3rd majority as required by Section 35 of
the Maharashtra Village Panchayats Act, 1958 by considering the number of
members of Gram Panchayat as 6 and recording that 4 out of 6 members
have voted in favour of the motion of no confidence and, therefore, the
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motion is deemed to have been passed. The argument on behalf of the
respondent Nos. 3 to 5 is that as the total number of members is 7 and,
therefore, the motion is required to be supported by at least 5 members, as
2/3 of 7 comes to 4.68. The above submission cannot be accepted. Election
petition is filed against Kalpana Govind Deshmukh on the ground that Sau.
Kalpana Govind Deshmukh with ID proof bearing No. S.J.A. 2242972 died on
4th September, 2009 and the lady who has contested the election as Sau.
Kalpana Govind Deshmukh is Nirmala Govind Deshmukh. The learned Civil
Judge has passed order temporarily restraining Nirmala Govind Deshmukh
from participating in the election process of Sarpanch and Up-Sarpanch in
the name of Sau. Kalpana Govind Deshmukh. The learned advocate for the
respondent No.5- Sau. Kalpana Govind Deshmukh has not been able to point
out that the order passed by the learned Civil Judge on 20th December, 2012
is challenged and stayed or set aside. In the circumstances, it has to be
treated that the above order is operating. Though the above order does not
restrain Nirmala Govind Deshmukh from participating in the meetings of the
Gram Panchayat for other purposes, in my view, in the background of the
facts, Nirmala Govind Deshmukh cannot be permitted to participate in the
affairs of Gram Panchayat as Kalpana Govind Deshmukh, especially when
Nirmala Govind Deshmukh has contested the election using Election ID
No. S.J.A. 2242972 that contains the photograph of Kalpana Govind
Deshmukh and not of Nirmala Govind Deshmukh.
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The Presiding Officer has not committed any mistake in not permitting
Nirmala Govind Deshmukh to participate in the meeting in which no
confidence motion is passed as Nirmala Govind Deshmukh failed to produce
the identity proof. The Presiding Officer has rightly worked out 2/3rd
majority considering the number of members of Gram Panchayat as 6.
6. The impugned order is perverse as it does not consider the facts
on record. The impugned order is unsustainable and has to be set aside.
Hence, the following order :
i) The impugned order is set aside.
ii) It is held that the resolution passed in the meeting held on 9th
March, 2016 in favour of the motion of no confidence is valid and
proper.
iii) The respondent Nos. 3, 4 and 5 shall pay costs of Rs.5,000/- in
each petition and the amount shall be distributed equally amongst
the petitioners.
iv) The amount of costs shall be paid within one month, failing which
Collector, Washim shall take appropriate steps to recover the
amount from the respondent Nos. 3, 4 and 5 towards arrears of
land revenue.
iv) Considering the gravity of the allegations against the respondent
No. 5, the learned Civil Judge (Junior Division), Risod is directed
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that if at the time of deciding Election Petition No. 01 of 2012, he
records finding that it is the case of impersonation, he should
direct the prosecution of the concerned.
Rule is made absolute in the above terms.
ig JUDGE
RRaut..
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C E R T I F I C A T E
I certify that this Judgment uploaded is a true and correct copy of
original signed Judgment.
Uploaded by : R.B. Raut, PS Uploaded on : 16.07.2016.
