Balasaheb Vitthalrao Kadam And ... vs The State Of Maharashtra And ...
2016 Latest Caselaw 4063 Bom

                                           1                            904 3368.16.odt



            6IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   BENCH AT AURANGABAD




                                                                        
                            WRIT PETITION NO. 3368 OF 2016




                                                
    1.      Balasaheb s/o Vitthalrao Kadam,
            Age-50 years, Occ: Sarpanch of




                                               
            Village Naralad.

    2.      Jyoti w/o Dilip Tompe,
            Age-30 years, Occ.:Household/Upsarpanch
            Both R/o Naralad, Tq. Gangakhed,




                                        
            Dist. Parbhani.                                     ...Petitioners

                     Vs.
                             
    1.      The State of Maharashtra
                            
            Through the Secretary,
            Rural Development Dept.
            Mantralaya, Mumbai.

    2.      The Additional Commissioner,
      


            Aurangabad Division, Aurangabad.
   



    3.      The Collector,
            Parbhani.

    4.      The Tahsildar,





            Gangakhed, Tq. Gangakhed,
            Dist. Parbhani.

    5.      Nayab Tahsildar, Gangakhed
            Presiding Officer, Gangakhed.





    6.      Shri V.P. Davangaonkar,
            Nayab Tahsildar, Gangakhed.

    7.      Laxman s/o. Chandrashekhar Hore,
            Age-30 years, Occ. Agri./Member,

    8.      Maruti s/o. Nagorao Wad,
            Age-64 years, Occ. Agri./Member,

    9.      Radhabai w/o. Maruti Kale,
            Age-51 years, Occ. Household/Member,



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    10.     Shobhabai w/o. Raghunath Shewale,
            Age-50 years, Occ. Household/Member,




                                                                         
    11.     Manisha w/o. Nivrutti Nargare,
            Age-29 years, Occ. Household/Member,




                                                 
    12.     Chhaya w/o. Munjaji Kadam,
            Age-27 years, Occ. Household/Member,

    13.     Shaikh Rajjak Sk. Aminsaheb,




                                                
            Age-45 years, Occ. Agri./Member,

          Respondents no. 5 to 13 all are
          R/o Naralad, Tq. Gangakhed,




                                      
          Dist. Parbhani.                           ... Respondents
                                     ----
                             
    Mr. J.M. Murkute, Advocate for the petitioners.
    Mr. A.P. Basarkar, AGP for respondent-state.
    Mr. V.D. Salunke, Advocate h/f. S.K. Chavan, Advocate for
    respondents no.7 to 11.
                            
                                         ----

                                      CORAM : SUNIL P. DESHMUKH, J.

DATE : 22-07-2016.

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard finally

with consent of the parties. Respondents no. 12 and 13 are served

and they have chosen to be away from hearing of the writ petition.

2. A brief reference to the factual position would be that

election to the post of sarpanch and up-sarpanch in 9 member

gram panchayat of village Naralad, Taluka Gangakhed, District

Parbhani were scheduled on 27-08-2015. In the meeting for said

purpose out of 9 members, 5 members had shown disinclination to

3 904 3368.16.odt

vote by ballot which was mooted upon a request by one of the

members of the grampanchayat. It has been stated that ballot

papers pursuant to the request had been prepared including the

symbols. Five persons who had opposed voting by ballot had

refused to accept the ballot papers. It is stated that, eventually,

the voting for one of the post had taken place from the 4 members.

However, upon a stated incident the meeting came to be adjourned

to next date.

3.

In view of section 12 of the Maharashtra Village

Panchayat Act, it appears that the notice of adjourned meeting had

been issued by the authorities scheduling the adjourned meeting

for elections of sarpanch and up-sarpanch. In the adjourned

meeting on 28-08-2015, it appears that, voting by ballot had taken

place only for one post. The counting in said meeting had taken

place of the voting which had contendly taken place on 27-08-2015

and on 28-08-2015, resulting into, according to the petitioners,

their elections as sarpanch and up-sarpanch respectively.

4. Aforesaid elections were subjected to appeal pursuant

to section 33 of the Maharashtra Village Panchayat Act, before the

collector. The collector taking stock of the situation found that it

may not be said that the meeting for election had been properly

conducted and has found that situation does not give any clear

4 904 3368.16.odt

picture and that the procedure prescribed had not been properly

followed and consequently he had allowed the appeal setting aside

the elections of the petitioners.

5. In appeal therefrom, before the commissioner at the

instance of petitioners has resulted in its dismissal, as he went on

to confirm the decision of the collector's findings as under:

vfiykFkhZ ;kapk vihy vtZ] izfroknh dz 2 rs 4 ;kaps ys[kh Eg.k.ks] izfroknh dz-5 ;kaps odhykapk rksaMh ;qDrhokn o izdj.kkrhy miyC/k lafpdsps voyksdu dsys vlrk vls fnlwu ;srs dh] izLrqr izdj.kkr xzkeiapk;r ujGn] rk-

xaxk[ksM ;sFkhy xzkeiapk;rps ljiap o miljiap ;kauh inkP;k fuoMhlkBh fnukad 27- 08-2015 jksth fo'ks"k lHkk vk;ksftr dj.;kr vkyh gksrh ek= dkgh dkj.kkLro gh lHkk rgdwc d:u fnukad 28-08-2015 jksth nql&;k v/;klh vf/kdkjh ;kaP;k v/; {krs[kkyh ?ks.;kr vkyh- izdj.kkr vfiykFkhZ o izfroknh dz-5 ;kauh fooknhr dsysyk

eqnnk vlk dh] vfiykFkhZ ;kaP;k Eg.k.;kuqlkj ljiap o miljiap inkph fuoM gh fu;eke/khy rjrwnhuwlkj >kkysyh vkgs- ek= izfroknh dz-5 ;kaP;k Eg.k.;kuqlkj gh izfdz;k ;ksX; o dk;ns'khj i/nrhus >kysyh ukgh- ;k vuq "kaxkus lnj lHksP;k fn- 27- 8-2015 o fn- 28-08-2015 jksthP;k bfro`rkarkps voyksdu dsys vlrk rs lqlaxr vlY;kps fnlwu ;sr ukgh- bfro`Rrkarkuqlkj loZ lnL;kauh erif=dk fLodkjY;k

ulY;kps fnlwu ;srs- rlsp T;k pkj lnL;kauh erif=dk ?ksryh R;k lnL;kauh ernku dsY;kckcr o gs ernku dwBs dsys \s erisVh ernkukiklwu nqljs fno'kh rgdwc lHkk

lq: gksbZi;Zar dwBs Bso.;kr vkyh gksrh ;kckcr dk;Zo`Rrkar dwBsp mYys[k ukgh- ghp ckc ftYgkf/kdkjh ;kaps fu"d"kkZr uksanfo.;kr vkyh vkgs] rh ;ksX; vkgs- tj lnL;kauh erif=dkp fLodkjY;k ukgh ;k ifjfLFkrhr fuoM.kwd izfdz;k gh ;ksX;fjR;k dk;ns'khji.ks o yksd'kkgh ekxkZus ?ks.;kr vkyh vls Eg.krk ;sr ukgh- rlsp fnukad 27-08-2015 o fn- 28-08-2015 ;k jksthP;k lHkkps bfro`Rrkarkps voyksdu dsys vlrk

R;ke/;s vusdosGk O;R;; vkY;kps rlsp c&;kp lnL;kauh okn fuekZ.k dsY;kps fnlwu vkys R;keqGs lHksps dkedkt fouk vMFkGk ikj ikMys vls Eg.krk ;sr ukgh- ;k loZ ckch fopkjkr ?ksmu ftYgkf/kdkjh] ijHk.kh ;kauh lnj lHksps dkedkt jnn dsysys vkgs o iqUgk ljiap @ miljiap inkph fuoM.kwd ?ks.;kckcr vkns'k dsys vkgs- gs vkns'k dk;ns'khj o izdj.kkrhy oLrqLFkhrhuq:i vlY;keqGs R;ke/;s gLr{ksi dj.;kph vko';drk okVr ukgh-

6. Learned counsel Mr. Murkute, streneoulsy urges this

court to indulge into his request to set aside the orders passed by

the commissioner and collector for the reasons that it cannot be

said that there is any irregularity since voting by secret ballot had

been demanded by one of the members and the request had been

5 904 3368.16.odt

accepted and rule 10(2) in the circumstances had been followed as

it was incumbent to accept such a request under the rule. If the

members of gram panchayat refuse to accept ballot papers, the

authorities cannot be faulted with. It was imperative to follow the

process of election as per the rules which has been duly followed in

the present matter including in the adjournment meeting.

7. He submits that on an earlier date i.e. on 27-8-2015

elections to the post of Sarpanch were held whereas elections to

the post of up-sarpanch were held on the next date i.e. 28-08-

2015, since the meeting on 27-08-2015 had been adjourned to 28-

08-2015. Rule 12 would be accommodative of this procedure.

8. He, therefore, submits that for refusal by 5 persons to

accept ballot papers and consequent election of petitioners is under

the due process of law and by following the procedure under the

rules. The decisions rendered by the two authorities collector and

the commissioner in the circumstances would not be compatible

with legal position for procedure has been appropriately followed.

Appreciation of the events by the two authorities is not in

consonance with the facts and record or rather is untenable.

                                               6                                  904 3368.16.odt



    9.               On      the   other   hand,   Mr.     Salunke        appearing         for

respondents no.7 to 11 submits that, there are concurrent findings

of facts by the authority about irregular conduct of the procedure in

the adjourned meetings. He submits that rule 12 ordains conduct of

the same business as have taken place in the meeting before. Here

in this present case even going by the submissions on behalf of the

petitioners it cannot be said that the same business was sought to

be transacted in the adjourned meeting as envisaged under rule 12.

He further factually points out that the notice of adjourned meeting

clearly depicts that it was for the election of the post of sarpanch

and up-sarpanch and not as has sought to be contended that only

for the post of up-sarpanch.

10. Accordingly, it was expected that the election for both

the posts would be held on 28-08-2015, however, the facts are

otherwise and the minutes also record clearly that in the meeting

on 28-08-2015, the voting as is contended to have taken place is

only for one post apart from that a lot of irregularities have been

observed by collector and commissioner. He therefore submits that

the matter really boils down to factual disputed aspects. In the

circumstances, he urges that no indulgence be given to the

petitioners.

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11. Learned counsel Mr. Salunke further points that, in the

meeting held after the impugned orders had been passed, the

outcome of which has been stalled under the interim orders of this

court, voting has taken place by petitioners ballot and that all the

members including petitioners have participated in said meeting.

He, therefore, submits that no interference is called for in the

decision rendered by the two authorities.

12.

Learned Assistant Government Pleader supports the

submission of Mr. Salunke on all the counts. He further submits

that, since the next meeting for elections has already taken place

let the democratic process lead to its logical consequence.

13. Having heard the learned counsel as aforesaid, the

factual situation to a large extent shows that the same may not

give any clear picture about following regular procedure as

envisaged under the Maharahstra Sarpanch and Up-sarpanch

election rules.

14. As has been observed by the authorities the petition

relates mainly to the factual aspects and it would not be proper for

this court to enter into such facts which are disputed. Authorities

having concurrently found that the meetings would not be said to

be regularly conducted, this is not a case wherein the court would

8 904 3368.16.odt

exercise its discretionary and extra ordinary powers. The writ

petition as such is not being entertained and is dismissed. Rule

discharged.

15. Consequently, the result of the meeting which, hitherto,

has not been declared under interim orders in this writ petition, can

be declared. In view of aforesaid, Civil Application also stands

disposed of. Record and proceedings be sent back.

(SUNIL P. DESHMUKH) JUDGE

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