Bombay High Court
Shivprasad Bhausaheb Ubale And Another vs State Of Maharashtra Through Principal ... on 13 August, 2024
2024:BHC-AUG:17988
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 8582 OF 2024
SHIVPRASAD BHAUSAHEB UBALE AND ANOTHER.
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS.
...
Mr. Mahesh Deshmukh h/f. Mr. K.D. Pote, Advocate for petitioners.
Ms. R.R. Tandale, AGP for respondent.
CORAM : S.G. CHAPALGAONKAR, J.
DATE :- 13th AUGUST, 2024.
ORDER :
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1. The petitioners approached this Court praying for grant of
following reliefs :-
(A) Hold and declare that, the impugned proceeding
- Grampanchayat Dispute bearing No. SR/44/2024
(Annex- "D") filed by Respondent No. 15 herein under
Section 35 (3B) of Maharashtra Village Panchayat Act
against the Petitioners is not maintainable and
entertainable and further declare that, impugned
Notice issued in said proceeding by Respondent No.2 -
District Collector, Ahmednagar dated 23.7.2024
(Annex- "E") is without jurisdiction.
(B) Kindly issue appropriate Writ or Order in the like
nature thereby quash and set aside the impugned
proceeding - Grampanchayat Dispute bearing No.
SR/44/2024 (Annex-"D") filed by Respondent No.15
herein U/sec. 35 (3B) of Maharashtra Village
Panchayat Act against the Petitioners is not
maintainable and entertainable and further declare
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that, impugned notice issued in said proceeding by
Respondent No.2 - District Collector, Ahmednagar
dated 23.7.2024 (Annex-"E").
2. Mr. Mahesh Deshmukh, learned advocate appearing for the
petitioners submits that respondent No.4 Village Panchayat consists of 13
members. Petitioners and respondent Nos. 5 to 15 are elected as
members of village panchayat in the elections that took place on
15.1.2021. Petitioner No.1 got elected elected as a Sarpanch. Petitioner
No.2 is elected as Upa-Sarpanch. The period of 5 years of present
panchayat would expire on 8.2.2026.
3. On 5.7.2024, a motion of "No Confidence" was moved
against the petitioners. Consequently, a special meeting was convened
and scheduled on 10.7.2024. At the special meeting, only 9 members of
the Village panchayat were present and voted in favour of the motion.
Respondent No.3 - Tahsildar declared that motion has failed for want of
3/4th majority. As such, minutes of the meeting were record. The
respondent Nos. 5 to 13 approached the District Collector, Ahmednagar
and filed proceeding purportedly under Section 35(3b) of the
Maharashtra Village Panchayat Act, 1966, seeking cancellation of
proceeding of meeting dated 10.7.2024 and for issuing directions against
respondent No.3 to convene a meeting of "No Confidence" again. The
District Collector took cognizance of the aforesaid proceeding and issued
notices to the petitioners.
4. Mr. Deshmukh, learned advocate for petitioners would raise
two fold contentions :-
Firstly, under Section 35(3b) of the Maharashtra Village
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Panchayat Act, the remedy is provided only in case of "No Confidence
Motion" is carried against Sarpanch and Upa-Sarpanch. However, it is not
open for the members of the Village Panchayat to raise dispute in case
the "No Confidence Motion" fails.
Secondly, he contends that once the motion for "No
Confidence" fails, no motion shall be brought before passage of time of
next one year.
On these two counts, he submits that the proceeding
instituted by respondent No. 15 and titled as "dispute" before District
Collector is not maintainable. The District Collector has no authority to
entertain and grant relief as claimed in the dispute.
5. According to Mr. Deshmukh, the District Collector should not
have taken cognizance of such dispute and should have dismissed the
same at threshold without issuing any notice to the petitioners. To
buttress his submissions, Mr. Deshmukh, relies upon the judgment of
Division Bench of this Court in the matter of " Balaji Tulshiram
Chaudhari vs. State of Maharashtra and others" reported in 2002(3)
All.M.R. 563.
6. I have considered submissions advanced and also perused
the documents tendered into service in the writ petition. It is pertinent
to note that respondent No.2 - Collector has merely issued notices in
pursuance of the dispute filed by respondent No. 15. Except issuance of
notice, no further orders is passed. The legal objections as to the
maintainability of the proceeding in dispute can be raised before the
District Collector, who is under obligation to consider and decide the
same. It would be within the domain of the Collector to answer the
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questions of law posed by the petitioners. It would be for the Collector to
consider the law laid down by this Court in the case of Balaji Chaudhari
(supra) as regards to the locus-standi to file dispute under the provision
of Section 35(3b) of the Village Panchayat Act. The Collector would also
be required to look into the provisions of Section 35(3A) which bars fresh
motion of "No Confidence" against the Sarpanch and Upa-Sarpanch
within a period of one year from the date of such special meeting, in case
the motion of "No Confidence" fails.
7. It would be improper to entertain the writ petition on
aforesaid grounds and delve into the jurisdiction of Collector to entertain
and decide the issue sought to be raised. In that view of the matter, the
petitioners would be at liberty to file appropriate reply to the dispute.
The District Collector shall consider the same on merits and pass
appropriate order after granting an opportunity of hearing to all
concerned.
8. With aforesaid observations, writ petition stands disposed of.
[S.G. CHAPALGAONKAR]
JUDGE
grt/-
