Suvarna Uttam Shinde vs The State Of Maharashtra And ...
2021 Latest Caselaw 893 Bom

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             IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                        BENCH AT AURANGABAD

                         WRIT PETITION NO. 5898 OF 2020

 Suvarna w/o Uttam Shinde                         ... Petitioner
        Versus
 The State of Maharashtra and others              ... Respondents
                                    ....
 Mr. K. F. Shingare, Advocate for petitioner
 Mr. A. B. Chate, AGP for respondent Nos. 1 to 3 and 7
 Mr. S. G. Jadhavar, Advocate for respondent Nos. 4 and 5
 Mr. P. P. Kale, Advocate for respondent No. 6(absent)
                                    ....

                                      CORAM : R. G. AVACHAT, J.

DATED : 14th JANUARY, 2021

PER COURT :-

. Heard learned counsel for the parties.

2. Respondent Nos. 4 and 5 had moved an application for

disqualification of the petitioner as a Member and Sarpanch as well

of Group Grampanchayat Pimparkheda/Mehandipur, taluka

Gangapur, district Aurangabad. The Collector, Aurangabad, allowed

the application vide his order dated 14.02.2020. The petitioner,

therefore, preferred appeal thereagainst before the Additional

Commissioner, Aurangabad, on 11.08.2020. The memo of appeal

had not been accompanied with an application for condonation of

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delay. The learned Additional Commissioner, vide his order dated

19.08.2020, dismissed the appeal on the ground of having been

barred by limitation. The learned Additional Commissioner was

pleased to observe that no application for condonation of delay was

filed along with the appeal memo.

3. Learned counsel for the petitioner would submit that the

learned Collector closed the proceedings for disqualification, on

03.09.2019. No date was fixed for decision to be passed in the

proceedings. After having closed the proceedings, the learned

Collector had called for a report from the concerned Tahsildar and

the Block Development Officer. These authorities submitted their

reports on 27.12.2019 and 05.02.2020, respectively. Without giving

an opportunity of hearing as regards the said reports, the learned

Collector passed the order on 14.02.2020. The learned counsel

would further submit that the Advocate for the petitioner had

inquired with the concerned Clerk on 04.08.2020 regarding decision

to be passed in the proceedings. He was informed that the decision

had already been passed. The learned Advocate, therefore, applied

for certified copy of the decision on 04.08.2020. He received the

certified copy on the very day and thereafter, within a period of

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fifteen days, he preferred the appeal. According to the learned

Advocate, the learned Collector did not inform the petitioner,

regarding the decision of having been disqualified. According to him,

the period of limitation would commence to run from the date of

knowledge of the decision. Learned Advocate has relied on a few

authorities in this regard.

4. Learned AGP representing the State and Mr. S. G.

Jadhavar, learned Advocate appearing for respondent Nos. 4 and 5

supports the impugned order. Both of them would submit that the

petitioner has not produced on record documents to show as to

when she had in fact been communicated the decision of the

learned Collector. They would further submit that no application for

condonation of delay was filed along with the memo of appeal. The

learned Commissioner was justified in dismissing the appeal as there

was delay in preferring the same.

5. The petitioner was elected as a Member of Group

Grampanchayat Pimparkheda/Mehandipur in the elections held in

the year 2017. Then she was elected as Sarpanch of the said village.

Respondent Nos. 4 and 5 moved an application to the Collector

contending that the husband of the petitioner made an

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encroachment on the Government land. He has constructed house

thereon and both petitioner and her husband have been staying

therein. The learned Collector issued notice to the petitioner and

respondent Nos. 4 and 5. It appears that, meanwhile, both the

respondent Nos. 4 and 5 withdrew the application. In my view, the

same is of a little consequence.

6. A copy of the Rozanama of the proceedings before the

learned Collector is on record. The same indicates that the

proceedings were closed on 09.09.2019. The proceedings were

reserved for judgment. Thereafter, the Additional Collector called for

the report from the Tahsildar and the Block Development Officer.

They gave their reports. There are no entries in the Rozanama in this

regard. The learned Collector gave his decision on 14.02.2020,

holding the petitioner to have incurred disqualification to continue

to be the Sarpanch and the Member, as well. There is no record to

indicate as to when the office of the learned Collector communicated

the decision to the petitioner. The petitioner has made a statement

on oath that she had not been communicated the decision. It is only

when her Advocate on 04.08.2020, approached the office of the

learned Collector, she came to know the decision having been given.

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Her Advocate, therefore, applied for certified copy of the decision on

the very day. He received the same on the same day and preferred

the appeal on 11.08.2020. This contention of the petitioner has not

been rebutted by the learned AGP. The affidavit filed on behalf the

learned Collector is silent to respond these averments. As such, the

record indicates the petitioner to have in fact first time come to

know on 04.08.2020 about having been disqualified vide order

dated 14.02.2020. Within a period of fifteen days from having been

learnt of the decision, the appeal came to be preferred.

7. The issue is no longer res-integra. This Court, vide order

dated 26.09.2017, passed in Writ Petition Nos.12516 of 2016 and

12517 of 2016 has held that when a matter is reserved for order

without specifying a date for pronouncement of judgment, then the

period of limitation for filing the appeal need to be calculated from

the date of petitioner's knowledge of such order. The Additional

Commissioner has not addressed the issue of limitation. On the very

next day of his decision, the petitioner filed application for

condonation of delay.

8. In the aforesaid factual backdrop, the writ petition needs

to be allowed, setting aside the impugned order dated 19.08.2020.

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9. The writ petition is therefore allowed. The order of the

Additional Commissioner dated 19.08.2020, is hereby set aside. The

appeal in file No.Grampanchayat/Appeal-2/C.R./73/2020 on the file

of the learned Additional Commissioner, Aurangabad, is revived with

a direction to the learned Additional Commissioner to first decide

application for condonation of delay in the light of aforesaid

observations and after giving the parties concerned, an opportunity

of hearing. If the Additional Commissioner found the appeal to have

not been barred by limitation, he may proceed to decide the appeal.

[ R. G. AVACHAT, J. ]

SMS

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