Bombay High Court
Hanumant Sahebrao Patil vs The Additional Commissioner ... on 27 October, 2016
Bench: T.V. Nalawade
1 WP 10602 of 2016
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Writ Petition No.10602 of 2016
* Hanumant Sahebrao Patil,
Age 37 years,
Occupation : Agriculture,
R/o. Sakat, Taluka Jamkhed,
District Ahmednagar. .. Petitioner.
Versus
1)
The Additional Commissioner,
Nashik Division, Nashik.
2) The Additional Collector,
Ahmednagar.
3) Gram Sevak,
Gram Panchayat, Sakat,
Taluka Jamkhed,
District Ahmednagar.
4) Alka Pandharinath Kolhe,
Age 35 years,
R/o Kolhewadi, Post. Sakat,
Taluka Jamkhed,
District Ahmednagar. .. Respondents.
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Shri. Abhijit S. More, Advocate, for petitioner.
Shri. S.N. Kendre, Assistant Government Pleader, for
respondent Nos.1 and 2.
Shri. V.S. Undre, Advocate, for respondent No.4.
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2 WP 10602 of 2016
CORAM: T.V. NALAWADE, J.
DATE : 27 OCTOBER 2016
JUDGMENT:
1) Rule, rule made returnable forthwith. Heard
both the sides by consent for final disposal.
2) The petition is filed to challenge the order
made on stay application in Village Panchayat Appeal
No.80/2016 made by the learned Additional Commissioner
Nasik.
3) The learned Additional Collector, Ahmednagar
has allowed the Village Panchayat Dispute proceeding
No.6/2016 and respondent No.4 Alka Kolhe, is disqualified
under the provisions of the sections 14(1)(j-1) and 16 of
the Maharashtra Village Panchayats Act 1958. There is
allegation against Alka that after relevant date i.e. 12-9-
2001 three children were born to Alka and so she is
disqualified.
3 WP 10602 of 2016
4) The submissions made and the record show
that the nomination form was filed on 17-7-2015. Along
with the nomination there was declaration that Alka was
having 2 children. There are birth certificates in respect
of these two children and they are not disputed. In the
proceeding filed before the Collector after the elections
present petitioner contended that the third child was born
to Alka on 7-10-2015 i.e. after the election. Birth
certificate in respect of the third child was produced. Alka
took defence that it is false certificate. After considering
the record, the Collector gave decision and Alka is
disqualified.
5) Alka filed appeal before the Additional
Commissioner and prior to that caveat was filed by
present petitioner. The other side appeared before the
Additional Commissioner. As per Roznama Alka did not
argue for stay to the order made by the Additional
Collector. Then the matter was adjourn to 23-9-2016. The
Roznama shows that on that date learned counsel for Alka
requested for adjournment and so the matter was
adjourned to 25-11-2016. The Roznama shows that on 7-
4 WP 10602 of 2016
10-2016 application was moved by Alka for stay and
without giving notice of this application to the present
petitioner ex-parte stay was granted by the Additional
Commissioner.
6) It is the grievance of the petitioner that when
there is record of aforesaid nature and when next date
was given to both the sides by learned Additional
Commissioner, it was not open to the learned Additional
Commissioner to grant ex parte stay. Learned counsel for
the petitioner placed reliance on a case reported as
2014(2) ALL MR 400 (S.C.) (Taranjeet Singh Vs. District
Deputy Registrar Co-operative Societies).
7) In view of the aforesaid record and
circumstance, this Court holds that it was not proper on
the part of the learned Additional Commissioner to grant
ex parte stay when other side had appeared and
adjournment was sought on the previous date and the
date was fixed as 25-11-2016. Learned Additional
Commissioner ought to have given opportunity to other
side by giving notice of this application. It appears that
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the present Sarpanch has resigned and due that the
petitioner has grievance that Alka will vote in the election
and that will be against the political interest of the
petitioner. Learned counsel for Alka submitted that appeal
is a right and so there is no possibility of interference in
the order of stay made by the learned Additional
Commissioner.
8) Though it is true that appeal is a right but filing
of the appeal does not mean automatic stay to the
disqualification declared by the learned Additional
Collector as provided in the Act of 1958. Only till
declaration is made by Collector in a proceeding the
member can continue to be member but once declaration
is made disqualification starts. In view of this position of
law, it was necessary for the Additional Commissioner to
give notice to the other side in view of the aforesaid
circumstances. This Court holds that the order cannot
sustain in law.
9) The petition is allowed. The order dated 7-10-
2016 made by the learned Additional Commissioner Nasik
6 WP 10602 of 2016
is quashed and set aside. Both the parties are to appear
before the Additional Commissioner on 2 nd November
2016 for arguments on the stay application. It is open to
the learned Additional Commissioner to go for final
hearing of the appeal itself. Rule is made absolute in the
above terms. Authenticated copy is allowed to both the
sides.
ig Sd/-
(T.V. NALAWADE, J. )
rsl
