Mahadeo Gopala Ghogare And Others vs The State Of Maharashtra And ...
2016 Latest Caselaw 6653 Bom

                                                                           906_WP1075716.odt


             
                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 BENCH AT AURANGABAD




                                                                                  
                                 WRIT PETITION NO. 10757 OF 2016




                                                          
    1.  Mahadeo Gopala Ghogare
         Age: 35 years, Occu.: Agri.,




                                                         
    2.  Abhang Rupchand Borude
         Age: 35 years, Occu.: Agri.,

    3.  Tatayasaheb Hausrao Gaware
         Age: 35 years, Occu.: Agri.,




                                                         
    4.  Swati Bibhishan Suryawanshi      
         Age: 30 years, Occu.: Household,

    5.  Vidhya Mohan Gaware
                                        
         Age: 34 years, Occu.: Household,

    6.  Rajubai Sambhaji Kanjwane
         Age: 35 years, Occu.: Household,
           


         All R/o Kokangaon, Tq. Karjat,
        



         Dist. Ahmendnagar.                                    ..PETITIONERS

                      VERSUS





    1.  State of Maharashtra
         Through the Secretary,
         Rural Development Department,
         Mantralaya, Mumbai-32.





    2.  The Collector,
         Ahmednagar.

    3.  The Village Panchayat, Kokangaon,
         Tq. Karjat, Dist. Ahmednagar.
         Through its Gram Sevak.

    4.  Sau. Vandana Ramesh Gaware
         Age: 38 years, Occu.: Household,

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    5.  Sambhaji Rohidas Borude
         Age: 36 years, Occu.: Agri.,




                                                                                       
    6.  Swati Nandlal Chaure
         Age: 35 years, Occu.: Household




                                                               
         Respondent Nos. 4 to 6 are
         R/o Kokangaon, Tq. Karjat,
         Dist. Ahmednagar.                                          ..RESPONDENTS




                                                              
                                         ....
    Mr. A.S. More, Advocate h/f Mr. S.L. Bhapkar, Advocate for petitioners.
    Mr. S.K. Tambe, A.G.P. for Respondent Nos.1 and 2.
    Mr. H.D. Deshmukh, Advocate for Respondent Nos.4 to 6.




                                                      
                                         ....
                                     ig   CORAM :  T.V. NALAWADE, J.

DATED : 23rd NOVEMBER, 2016

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith. Heard both sides by

consent for final disposal.

2. The present proceeding is filed to challenge the order made by

Additional Collector in Dispute Application No. 85 of 2016 which was

pending before the Additional Collector, Ahmednagar. Said dispute

application was filed by present Respondent No.4 - Vandana Gaware -

Sarpanch of Village Panchayat, Kokangaon, Tahsil Karjat, District

Ahmednagar. She had raised the dispute that resignation of her post was not

genuine. The dispute application is allowed by Collector.

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3. The present proceeding is filed by six members of the village

panchayat to challenge the decision of the Additional Collector and the

decision is challenged only on the ground that the dispute application itself

was not filed within the prescribed period of seven days.

4. Learned Counsel for Respondent No.4 - Sarpanch submitted that

appeal is available to challenge the decision given by Additional Collector in

view of Section 29(4) of the Maharashtra Village Panchayats Act, 1959 and

so present proceeding cannot be entertained.

5. Firstly this Court would like to deal with the objection taken by

learned Counsel for Sarpanch about the tenability of present proceeding.

The entire provision of Section 29 needs to be considered in this regard and

it reads as under:-

"29. Resignation of member and disputes regarding resignation.-

(1) Any member who is elected may resign his office by writing under his hand addressed to the Sarpanch and the Sarpanch may resign his office of member by writing under his

hand addressed to the Chairman of the Panchayat Samiti. The resignation shall be delivered in the manner prescribed.

(2) On receipt of the resignation under sub-section (1), the Sarpanch or, as the case may be, the Chairman of the Panchayat Samiti shall forward it to the Secretary who shall

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place it before the meeting of the panchayat next following.

(3) If any member or the Sarpanch whose resignation is placed before the meeting of the panchayat wants to dispute the

genuineness of the resignation, he shall refer such dispute to the Collector within seven days from the date on which his resignation is placed before the meeting of the panchayat. On

the receipt of dispute, the Collector shall decide it, as far as possible within fifteen days from the date of receipt.

(4) The member or Sarpanch aggrieved by the decision

of the Collector may, within seven days from the date of receipt of the Collector's decision, appeal to the Commissioner who

shall decide it, as far as possible, within fifteen days from the date of receipt of the appeal.

(5) The decision of the Collector, subject to the decision of the Commissioner in appeal, shall be final.

         (6)             The resignation shall take effect,-





                         (a)     where   there   is   no   dispute   regarding   the  

genuineness, after the expiry of seven days from the date on which it is placed before the meeting of the panchayat.

(b) where the dispute is referred to the Collector and no appeal is made to the Commissioner after the expiry of seven days from the date of rejection of the dispute by the Collector;

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(c) where an appeal is made to the Commissioner, immediately after the appeal is

rejected by the Commissioner."

6. Section 29(3) shows that the member or Sarpanch who has

tendered resignation and whose resignation was placed before the meeting

of panchayat is entitled to file dispute within seven days from the date on

which the resignation was placed before the meeting of panchayat. This

right of filing dispute is given only to 'the member' or 'the Sarpanch' who had

tendered the resignation. Provision of Section 29(4) again shows that the

terms 'the member' and 'Sarpanch' are used and it is made clear that if the

member or the Sarpanch is aggrieved by the decision of the Collector he may

file appeal before the Commissioner. This point was considered by the

Division Bench of this Court though this point was not squarely involved, in

the case reported as 2002(4) All. M.R. 741 ( Kavita Sakharam Chavan

and Others Vs. Commissioner, Kokan Division, Navi Mumbai and

Others ). In that case the facts were little bit different. Four members of

village panchayat had tendered resignations and they had accepted in the

meeting of village panchayat that they had resigned from their posts. The

village panchayat was then dissolved as there were not 50% of the members

available and this decision was then challenged by Sarpanch. Thus the

decision of dissolution of village panchayat was in dispute and in that

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proceeding contention was made by Sarpanch that the proceeding could

have been filed under Section 29(4) to challenge the resignation. In

response to that submission, the Division Bench held that members who had

tendered resignation had themselves admitted that they had resigned and so

there was no question of filing any proceeding after the meeting. This

decision was referred by Single Judge of this Court in the case reported as

2003(2) All.M.R. 640 ( Smt. Pushpa Pundlik Salame Vs. Additional

Commissioner and Others ). In that case, the learned Single Judge

interpreted the aforesaid provision by using observations made by the

Division Bench and held that if the proceeding is decided in favour of

member or Sarpanch who had filed dispute, the other side cannot challenge

that decision by filing appeal before the Commissioner. This Court holds

that such interpretation needs to be accepted in view of wording of Section

29 which is already quoted. Thus appeal was not available before the

Commissioner against the decision of the dispute given by the Collector and

so it cannot be said that present petition cannot be entertained.

7. On the point of limitation, it can be said that the meeting of

village panchayat was held on 26th September, 2016 which way Monday.

The first day of the meeting i.e. 26 th can be excluded for counting statutory

period of seven days given under Section 29(3). If that day is excluded, then

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seventh day falls on 03rd October, 2016. On 3rd October, 2016 it was Monday

and so it was the last day for filing dispute as provided under Section 29(3)

of the Act. However, admittedly the dispute was filed on 04 th October, 2016.

Thus within the statutory period, the dispute was not filed by the Sarpanch

but the dispute was entertained and allowed by the Collector.

8. On the point of limitation, learned Counsel for present petitioner

placed reliance on case reported as 1986 Mh.L.J. 514 ( Shrikant Mallappa

Ulegadi Vs. Gram Panchayat at Mouje Kadgaon and Others ). In this case

the Division Bench of this Court has considered the provision of Section

29(1), (3) and (6) of the aforesaid Act and it is held that the resignation

tendered becomes effective on completion of seven days after the meeting

and any dispute raised thereafter is of no use. In other case decided by

learned Single Judge of this Court reported as 2013(7) Bom.C.R. 865

( Kishor Tanaji Kharat and Others Vs. Divisional Commissioner and

Others ), this Court has reiterate the aforesaid position of law.

9. Learned Counsel for respondent - Sarpanch placed reliance on

case of this Bench reported as 2006(6) Bom.C.R. 595 (Ravindra Bhaskar

Lumpataki Vs. Chairman and Others ). The facts of that case were totally

different and observations were in different context. The said case is not on

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the point of limitation. In the present case, as the dispute was not filed

within seven days. In view of provisions of Section 29(3) and 29(6) of the

Act, it needs to be presumed that after completion of seven days from the

date of meeting of village panchayat, the resignation had became effective.

Thus the dispute itself could not have been entertained and allowed by the

Collector.

10. In the result, the petition is allowed. The decision given by the

Collector in the aforesaid dispute application is hereby set aside and dispute

application stands rejected as it was not filed within the statutory period of

seven days. Rule made absolute in the aforesaid terms.

( T.V. NALAWADE, J. )

SSD

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