Dismissed

Shri. Ladakbhai Janyabhai Mishal v. Shri. Kamlakar Govindbhai Kharpadia and Ors.

Bombay HC28 Nov 2011LPA/336/2011

Case brief

AI extract

What is this about?

Appeal against a single judge order remanding proceedings regarding the removal of panchayat members. The bench rejected the proposal to exclude votes of potentially disqualified members, holding that removal takes effect from the order date, not disqualification date, to avoid confusion.

What did the court decide?

The appeal was disposed of without altering the single judge's order, upholding the inclusion of the votes cast by the challenged members.

Shri. Ladakbhai Janyabhai Mishal Vs Shri… — Pension and Retirement Benefits | Bombay HC (2011)

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1 LPA 336.11

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Kambli

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION

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LETTERS PATENT APPEAL NO.336 OF 2011 IN WRIT PETITION NO.7765 OF 2011

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Shri Ladakbhai Janyabhai Misal

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...Appellant

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v/s.

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Shri Kamlakar Govindbhai Kharpadia and ors.

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...Respondents

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Mr.Mahesh Jethmalani, Sr.Advocate with Ms.Gunjan Mangla for Appellant. Mr.A.A.Kumbhakoni i/b S.A.Acharya for Respondents Nos. 1 to 3.

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Mr.G.S.Kulkarni i/b S.S.Deshmukh for Respondents Nos.4 to 9.

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CORAM: D.K.Deshmukh & Anoop V. Mohta, JJ

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DATED: 28^th November, 2011

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P.C.:

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By this Appeal the Appellant challenges the order

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made by the learned single Judge dated 27-9-2011 in Writ

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Petition No.7765 of 2011. Before the learned single Judge in

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that Writ Petition the order passed by the Respondent No.8

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2 LPA 336.11

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deciding the application made by the Appellant for removal of Respondents Nos. 1, 2 & 3 as members of Khanvel Group Gram Panchayat. The learned single Judge has set aside the order which was impugned in the petition and remanded the matter back for fresh inquiry and decision.

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It appears that the present Appellant is the Sarpanch of that village panchayat. A motion of noconfidence was moved for his removal in the meeting held on 24-6-2011. Before that date an application was made before

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the Respondent No.8 by the Appellant alleging that the Respondents Nos. 1, 2 & 3 should be removed from the office of the Members of Village Panchayat, because they have incurred disqualification. During the pendency of that application, meeting for consideration of no-confidence motion was called. Therefore, it appears that a writ petition was moved before this court. In that Writ Petition, being Writ Petition No.4593 of 2011 an order was made on 23-6-2011 directing that the meeting to consider the motion of no confidence scheduled to be held on 24-6-2011 should be

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3 LPA 336.11

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held, but the votes that may be cast by present Respondents Nos. 1, 2 & 3 should be kept in a separate ballot box and decision whether to count those votes or not should be taken only after decision on the application for removal of the Respondents Nos. 1, 2 & 3 is taken by the Respondent No.8. It is, thereafter, that the Respondent No.8 made the order on the removal application and rejected the same. Which was challenged before the learned single Judge. The learned single Judge while remanding the proceeding back has held that there is no need to make an order directing the authorities not to count the votes cast by Respondents Nos. 1, 2 & 3 in the no-confidence motion meeting, because according to the learned single Judge even if ultimately the Respondent No.8 removes Respondents Nos. 1, 2 & 3 from the office of the members of the Village Panchayat, that removal will take effect from the date of the order that is made by the Respondent No.8 and not from any earlier date and therefore, no useful purpose will be served by preventing counting of votes cast by Respondent Nos.1, 2 & 3 on 24-6-2011. It is only this part of the order of the learned

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4 LPA 336.11

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single Judge which is challenged in the appeal.

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The learned Counsel for the Appellant relied on decision of the Supreme Court in the case of Rejendra Singh Rana v/s. Swami Prasad Maurya & ors., AIR 2007 SC 1305, specially the observations of the Supreme Court in paragraph 34, and submitted that the removal of Respondents Nos. 1, 2 & 3 will relate back to the date on which they have incurred disqualification, and therefore they will not be entitled to cast their votes or in other words votes cast by them in the meeting dated 24-6-2011 will not be valid and therefore should not be permitted to be counted.

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In our opinion, the submission is not well founded. Even in the event of the Respondents Nos. 1, 2 & 3 being held to have incurred the disqualification on a date before 24-6-2011, still their removal from office which they hold for that disqualification will take effect from the date of the order that the Respondent No.8 will make and not from any earlier date. In our opinion, accepting the proposition canvassed by

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5 LPA 336.11

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the learned Counsel appearing for the Appellant will result in disturbing the working of the Village Panchayat itself. Because if an application is made by a person for removal of a member, under the apprehension that he would be removed and then removal will take effect from the date of the application, he will have to be prevented from participating in all meetings of the Village Panchayat and also restrained from functioning as member of Village Panchayat. In our opinion, this will lead to confusion. The better course would be to permit him to participate as member till the application is decided because in case the authority holds that he has incurred the disqualification his removal will take effect on the date he is actually removed by the authorities competent to make that order. Though the removal order will be based on

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the misconduct which might have been committed at an earlier point of time. In our opinion, the learned single Judge was perfectly justified in making the order. We have also been informed that the votes cast by the Respondents Nos. 1, 2 & 3 have already been counted and that after the remand order was made by the learned single Judge, the application made

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6 LPA 336.11

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by the Appellant for removal of Respondents Nos. 1, 2 & 3 was considered by Respondent No.8 and has again been rejected by order dated 25-11-2011.

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The Appeal is disposed of.

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(Anoop V.Mohta, J.)

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(D.K.Deshmukh,J.)

Shri. Ladakbhai Janyabhai Mishal v. Shri. Kamlakar Govindbhai Kharpadia and Ors.

Case brief

What is this about?

What did the court decide?

Shri. Ladakbhai Janyabhai Mishal v. Shri. Kamlakar Govindbhai Kharpadia and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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