Dismissed

Suresh S/O Narayan Tathod v. the Addl.Commissioner,Amravati Div. and 6 Ors.

Bombay HC15 Oct 2008LPA/331/2008

Case brief

AI extract

What is this about?

In this Letters Patent Appeal, the High Court dismissed the appellant's challenge to the election of a Sarpanch. The court held that "three days clear notice" is mandatory in election rules. Mere issuance of notice was insufficient as the required service could not be cured by the interpretation applicable to 'send' in general meeting rules.

What did the court decide?

The letters patent appeal was dismissed, maintaining the impugned order.

Suresh S/O Narayan Tathod Vs the… — Pension and Retirement Benefits | Bombay HC (2008)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR

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Letters Patent Appeal No.331/2008 In

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Writ Petition No.3310/2008 (Decided)

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[Suresh s/o Narayan Tathod .vrs. The Additional Commissioner, Amravati and others]

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............................................................................................................................................................................................. Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders

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................................................................................................................................................................... Mr. N.R. Saboo, Advocate for the appellant,

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Mr. Y.B. Mandpe, AGP for respondent nos.1 and 2/State.

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CORAM : K.J. ROHEE AND PRASANNA B. VARALE, JJ

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DATED : OCTOBER 15, 2008

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Heard the learned counsel for the parties.

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The appellant was elected as Sarpanch in the

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meeting held on 23.12.2007. The said meeting was attended

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by all the elected members of the concerned Gram Panchayat. Subsequently, the election of the appellant was challenged on

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the ground that three days clear notice of the said meeting as required under Rule 4 of the Bombay Village Panchayats (Sarpanch and Upa-Sarpanch) Election Rules, 1964 was not

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given. It is not disputed that the notice of the said meeting was issued on 14.12.2007 and respondent no.3 received the said notice on 20.12.2007. It must be remembered that the

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meeting was held on 23.12.2007. The Additional Commissioner, Amravati Division, Amravati (Respondent No.1) as well as the learned Single Judge held that three days clear notice under Rule 4 of the Bombay Village Panchayats (Sarpanch and Upa-Sarpanch) Election Rules, 1964 was mandatory and in the absence of such notice, though the meeting was attended by all the elected members of the Gram

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Panchayat, the defect would not be cured. So also estoppal would not operate against those who attended the meeting to say that there was no three days clear notice as required under the relevant rules. The judgment of the learned Single Judge is under challenge.

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Our attention was invited by the learned counsel for the appellant to Rule 5(2) of the Bombay Village Panchayats (Meetings) Rules, 1959 which provides that the Secretary shall, at least one clear day before the date fixed for a special meeting, send or cause to be sent to all the members

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intimation of the date, time and place of such special meeting and of the business to be transacted thereat. The learned counsel for the appellant submitted that the word “send” or “cause to be sent” have been interpreted by a Division Bench of this Court in Sangeeta w/o Ramesh Ranvir .vrs. Presiding Officer/Tahsildar, Purna reported in 1999(1) Mh.L.J. 958 (B) , wherein it is held that what is provided by the rule is time at which the notice is to be sent or caused to be sent by the Secretary. Sub-rule (2) of Rule 5 does not require that a notice should be served on member at least one clear day in advance. The learned counsel for the appellant seeks to import the interpretation of Rule 5 (2) of the Bombay Village Panchayats (Meetings) Rules, 1959 by contending that what is necessary under Rule 4 of the Bombay Village Panchayats (Sarpanch and Upa-Sarpanch) Election Rules, 1964 is merely issuance of notice and not service of notice. He submits that in view of this it cannot be said that there was no compliance with Rule 4 of the Bombay Village Panchayats (Sarpanch and Upa-Sarpanch) Election Rules, 1964.

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We are unable to persuade us to accept these submissions. In our view Rule 5 (2) of the Bombay Village Panchayats (Meetings) Rules, 1959 cannot be equated with Rule 4 of the Bombay Village Panchayats (Sarpanch and UpaSarpanch) Election Rules, 1964 because of the difference in the wording of Rule 5 (2) of the Bombay Village Panchayats (Meetings) Rules, 1959 and Rule 4 of the Bombay Village Panchayats (Sarpanch and Upa-Sarpanch) Election Rules, 1964. Whereas Rule 5 (2) of the Bombay Village Panchayats (Meetings) Rules, 1959 requires the Secretary to send or cause to be sent intimation to all the members and Rule 4 of the Bombay Village Panchayats (Sarpanch and UpaSarpanch) Election Rules, 1964 requires that the Presiding Officer shall cause a notice of the meeting to be given to every member of the panchayat at least three clear days before the date of such meeting. Thus what is required by Rule 4 of the Bombay Village Panchayats (Sarpanch and Upa-Sarpanch) Election Rules, 1964 is not merely sending of intimation, but service of three clear days notice. As such the appellant cannot take advantage of the interpretation given in Sangita's

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case (supra). We see no force in the appeal. The same is,

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therefore, dismissed.

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JUDGE

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JUDGE

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Gulande