Rustum Ramchandra Dipake vs The State Of Maharashtra And ...
2021 Latest Caselaw 1478 Bom

                                                                           937-WP-4771-20.odt




              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         BENCH AT AURANGABAD

                          WRIT PETITION NO. 4771 OF 2020

Rastum Ramchandra Dipake                                    ..PETITIONER
      VERSUS
State of Maharashtra and Others                             ..RESPONDENTS

                                       ....
Mr. S.B. Ghatol Patil, Advocate for petitioner
Mr. S.N. Morampalle, A.G.P. for respondent nos. 1 to 4
                                       ....

                                              CORAM : R.G. AVACHAT, J.

DATED : 21st JANUARY, 2021

PER COURT :

1. Heard.

2. The challenge in this writ petition is to order dated 20th March,

2020 passed by the Additional Commissioner, Aurangabad in Appeal No. DB/

Desk-2/ZPVP/Appeal/CR-58/2020 thereby dismissed the said appeal

preferred by the petitioner on the ground of delay.

3. Learned counsel for the petitioner took me through the chronology

of events to ultimately submit that in the given facts and circumstances of the

case, the Additional Commissioner ought to have condoned the delay. He,

therefore, urged for allowing the writ petition.

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4. Learned A.G.P. would, on the other hand, submit that appeal is

required to be preferred within a period of fifteen days from the date of

order. There is no provision in the Maharashtra Village Panchayats Act, 1958

for condonation of delay. He, therefore, urged for rejection of the petition.

5. The petitioner was elected as member and also Sarpanch of the

Village Panchayat Hapsapur, Tq. Basmatnagar, Dist. Hingoli on 17 th July,

2015. Learned Judicial Magistrate First Class, Basmath vide judgment and

order dated 16th December, 2016 convicted him for the offence punishable

under Section 324 of the Indian Penal Code and sentenced to suffer rigorous

imprisonment for six months. The applications (Exh.5 and 6) for suspension

of sentence and bail in appeal, bearing R.C.A. No. 36 of 2016, to the Session

Judge, Basmath against the order of trial Court, appears to have been allowed

pending appeal by order dated 07th January, 2017.

6. Respondent No.6 filed complaint on 04th May, 2017 before the

Collector, Hingoli and urged for holding the petitioner to have incurred

disqualification to continue on the post of Sarpanch and member of village

panchayat as well. The Collector, Hingoli, after holding enquiry in this

regard, allowed the application (complaint) filed by Respondent No.6 on 20 th

February, 2020. The Collector held the petitioner to have incurred

disqualification to continue to be Sarpanch and member of village panchayat.

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7. According to the petitioner, the Collector had closed hearing of the

proceeding on 04th August, 2017 itself and reserved the matter for order. The

petitioner was communicated the order of Collector on 24 th February, 2020.

The petitioner, therefore, applied for the certified copy of the order on 10 th

March, 2020 and received the same very day. Within seven days thereafter,

i.e. on 17th March, 2020, the petitioner preferred appeal there against.

8. By virtue of Section 16(2) of the Maharashtra Village Panchayats

Act, 1958, any person aggrieved by decision of the Collector may, within a

period of fifteen days from the date of such decision, appeal to the

Commissioner. If we go by the literal meaning of this provision, the

petitioner was expected to file the appeal within fifteen days from the date of

decision of the Collector which is dated 20 th February, 2020. The Collector

had not reserved the matter for a particular date for giving decision in the

proceeding. It is only on 10 th March, 2020 the petitioner came to know about

the order of his disqualification. In such case, the period of limitation need to

be counted from the date on which the petitioner came to know about the

decision of his disqualification.

9. Learned Additional Commissioner appears to have not considered

the petitioner's contention and was pleased to observe as :

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10. The petitioner has produced before the Additional Commissioner a

judgment of this Court in Writ Petition Nos. 7928 of 2018 and 3528 of 2018.

The Additional Commissioner appears to have not given any reason as to why

he did not follow the observations in the aforesaid decision relied on.

11. In the aforesaid backdrop, the impugned order needs to be set

aside with direction to the Additional Commissioner to decide the issue of

limitation in light of the aforesaid observations and giving the parties

concerned an opportunity of hearing. If he found the appeal to have not

barred by limitation, then he may proceed to decide the appeal. The

petitioner shall appear before the Additional Commissioner, Aurangabad on

06th February, 2020.

12. In view of above, writ petition is disposed of.

( R.G. AVACHAT, J. ) SSD

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