Allowed

Dilipreddy Pandharireddy Bhusgire v. the State of Mah and Ors.

Bombay HC5 Feb 2013WP/7847/2012

Case brief

AI extract

What is this about?

This writ petition challenged the dismissal of appeals against a no confidence motion passed against the petitioner, a Sarpanch. The court found that the service of notice was invalid due to discrepancies in the panchanama and affidavit regarding the mode of service. Consequently, the impugned orders were set aside as perverse.

What did the court decide?

Impugned judgments and orders set aside; petition allowed in terms of prayer clauses (A), (B), and (C); Rule made absolute.

Dilipreddy Pandharireddy Bhusgire Vs the… — Pension and Retirement Benefits | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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BENCH AT AURANGABAD.

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WRIT PETITION NO.7847 OF 2012.

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Dilipreddy s/o Pandharireddy Bhusgire,
age 45 years,
occu. Sarpanch and agri.,
r/o Kini,Tal. Degloor,
Dist. Nanded. .... PETITIONER.
VERSUS

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1. The State of Maharashtra,
through its Secretary,
Rural Development Department,
Mantralaya,
Mumbai - 32.
2. The Collector,
Collector Office,
Nanded.
3. The Tahsildar,
Degloor, Destrict Nanded.
4. The Grampanchayat,
throu Tal. Degloor,
Dist. Nanded.
5. Raghunath s/o Maroti Jadhav,
age 45 years, occu. agri.,
District Nanded.
6. Babu s/o Dhumma Rathod,
age 45 years, occu. Up-Sarpanch
and agri.,
r/o Kini, Tal. Degloor,
Dist. Nanded.
7.Namdeo s/o Mariba Dhanve,
age 55 years, occu. agri.,

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r/o Satona khurd, Tq. Partur,
District Jalna.

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8. Kashinath s/o Gyanoba Sandve,
age 42 years, occu. agri.,
r/o Kini, Tal. Degloor,
Dist. Nanded.

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9. Ismail s/o Babu Sahab,
age 40 years, occu. agri.,
r/o Kini, Tal. Degloor,
Dist. Nanded.

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10. Rukminibai w/o Jairam Rathod,
age 57 yeas, occu. household,
r/o Kini, Tal. Degloor,
Dist. Nanded. ... RESPONDENTS.

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Shri S.B. Talekar Advocate for Petitioner.
Shri D.R. Kale, AGP for respondents 1 to 3.
Shri B.N. Patil, Advocate for Respondent 4.
Shri M.L. Dharashive, Advocate for R.Nos.5 to 10.

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CORAM: S.S. SHINDE,J.

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RESERVED ON: 31st JANUARY, 2013. PRONOUNCED ON: 5th FEBRUARY,2013.

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JUDGMENT:

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1.Rule, returnable forthwith. By consent

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of the parties, taken up for hearing.

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This petition takes exception to the

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judgment and order dated 30.7.2012 passed by the
Additional Collector, Nanded in Case No.
2012/GB/Desk-1/GPN/Appeal-47 dated 30.7.2012 and
also the judgment and order dated 4th September,

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2012 passed by the Divisional Commissioner,
AurangabadinCaseNo.DB/Desk-2/

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ZPVP /Appeal/CR/68/2012.

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2. The background facts leading to file this
petition, as disclosed in the petition, are as
under:

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The petitioner is Sarpanch of Kini Gram
Panchayat, taluka Degloor, Dist. Nanded. The
requisition to move no confidence motion against
the petitioner came to be submitted to the
Tahsildar, Degloor on 24th April, 2012 and
therefore, notice to that effect came to be issued
calling a meeting of the Gram Panchayat on 30th
April, 2012.

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3.It is the case of the petitioner that copy of
the requisition for no confidence motion was never
served either upon the petitioner or his wife as
per the mode prescribed under the Rule1(2) of the
Bombay Village Panchayat Sarpanch and Up-Sarpanch
(No Confidence Motion) Rules, 1975 (for short, the

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said Rules). It is submitted that though it is
noted in the minutes of the meeting held on 30th
April, 2012 that the petitioner was present and he
refused to sign the muster, it is utterly false.
It is further case of the petitioner that the
resolution of non confidence motion came to be
passed against the petitioner on 30th April, 2012
and, therefore, Naib Tahsildar who was sub-
delegated the work of convening the meeting
informed the Tahsildar, Degloor that the resolution
of no confidence motion has been passed and
therefore, he should take further action.

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4.The petitioner filed an appeal before the
Collector, Nanded which came to be heard by Addl.
Collector and thereafter on 30th July, 2012, it
came to be rejected. Against the said order, the
petitioner preferred an appeal before the
Divisional Commissioner, Aurangabad on 4th
September, 2012 and that too, was rejected. Hence,
this petition.

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5. The learned Counsel for the petitioner submits

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that there was no service of notice of the said
meeting either on the petitioner or his wife and
therefore, in absence of any notice to the
petitioner, there was no question of attending the
no confidence motion by the petitioner. It is
submitted that notice was not served upon the
petitioner neither it was tried to be served.
However, false record has been created to show that
wife of the petitioner has been served with the
notice. It is submitted that if the member refuses
to accept notice of non confidence motion,
procedure is prescribed under the relevant Rules
and such procedure is required to be adhered to. It
is submitted that the panchanama of service of
notice prepared by the authorities is not signed by
independent panchas. There is only signature of
one panch and the requirement under the relevant
rules is that at least two panchas should sign such
panchanama. It is submitted that though the
panchanama shows date as 25th April, 2012, the
Mandal Aadhikari and the Talathi, Sajja Kini have
signed the same on 26th April, 2012. Therefore,
the learned Counsel submits that in the first

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place, no notice was served on the petitioner or
even, it was not tried to be served. The false
record is created to show that the notice was
served on wife of the petitioner. Learned Counsel
invited my attention to the contents of the
panchanama and affidavit-in-reply filed on behalf
of the Tahsildar and the Collector, and submitted
that the panchanama mentions that notice was served
on the wife of the petitioner since the petitioner
was not present in his dwelling house. However,
the reply filed by the authorities states that
since the petitioner was not present in the house,
notice was tried to be served on his wife.
However, wife refused to accept the notice, and,
therefore, the concerned officer affixed the same
on the door of petitioner's house in presence of
two panchas. According to the learned Counsel for
the petitioner, the variance in the contents of the
panchnama and statement made on oath by the
responsible officer like Tahsildar and Collector
would lead to the conclusion that there was no
service of notice on the petitioner and the
panchanama which is created to show that notice was

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served on the wife of the petitioner, is a
concocted and manufactured document. Therefore,
the learned Counsel for the petitioner, relying
upon the pleadings in the petition, grounds taken
therein, annexures thereto would submit that this
petition deserves to be allowed.

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In support of his contention that, if there is
no valid service of notice, in that case, the same
vitiates motion of no confidence. The learned
Counsel for the petitioner pressed into service
reported judgment of this Court in case of
Sou.Indubai w/o Vedu Khairnar v/s The State of
Maharashtra & Ors. [2002(4) ALL MR 110].

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6.On the other hand, learned Counsel for the
respondents No.5 to 10 vehemently opposed the
prayers in the petition and submitted that there
are concurrent findings recorded by the authorities
below that there was proper service of notice on
the petitioner's wife and the petitioner did
participate in the meeting held on 30th April,
2012. Therefore, it is not open for the petitioner

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now to contend that there was no service of notice
of no confidence motion and he could not
participate in the said meeting. The learned
Counsel for the respondents 5 to 10 invited my
attention to the findings recorded by the
authorities below and submitted that this petition
deserves to be rejected. It is submitted that the
service of notice as contemplated under Rule 2(2)
of the said Rules is directory and not mandatory.
Therefore, the learned Counsel for the respondents
5 to 10 would contend that the petition may be
rejected.

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7.The learned AGP invited my attention to the
original record and submitted that there was proper
service of notice and to that effect, panchanama
was prepared, statements in the affidavit in reply
are in consonance with the original record
maintained by the respondent authorities.
Therefore, he prayed for dismissal of the petition.

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8.I have given careful consideration to the
rival submissions of the parties. With the able

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assistance of the learned Counsel for the parties,
perused the petition, annexures thereto and the
original record made available for perusal. upon
careful perusal of the panchanama showing that the
notice was served on the wife of the petitioner, it
is seen that it is mentioned in the panchanama that
since the petitioner was not present in his
residential house, notice was served on the wife of
the petitioner. There is signature of one Tulshiram

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Motiram Sandve on the panchanama. However, it
appears that he is employee of the Gram Panchayat
office, Kini. Another person's name is Vyankatrao
Ramgaunda Suryawanshi who appears to be the
villager. There is third person namely, Anil
Baburao Jadhav. However, there is no signature of
this person on the panchanama. The contention of
the learned Counsel for respondents 5 to 10 and the
AGP that the said person has written his name in
his own hand writing and the same is his signature,
cannot be accepted. The person who writes his name,
should have no hesitation to sign the said
panchanama. There are signatures of Asstt. Police
Inspector, Mandal Aadhikari and Talathi of Sajja

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Kini on the said panchanama. Therefore, in all
there are six names and five signatures on the
panchanama. Out of five persons who have signed
the panchanama, one is Gram Panchayat servant, one
is villager and three are Government employees. It
further appears that below the signatures of Mandal
Aadhikari and Talathi, date is mentioned as
26.4.2012 whereas, on panchanama date is mentioned
as 25.4.2012. The contention of the learned AGP
and Counsel for respondents No.5 to 10 that the
said signature of the Assistant Police Inspector,
Mandal Aadhikari and Talathi are taken on next date
by forwarding the copy to them. However, there is
nothing to indicate on the said document that
copies of this panchanama are forwarded and the
concerned aforesaid officers have signed on it. On
plain reading of the said document Panchanama, it
clearly appears that all the five persons have
signed the said panchanama.

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9.In pursuant to the notice issued in this writ
petition, the affidavit-in-reply has been filed by
one Digambar s/o Ramji Shirse, Naib Tahsildar in

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the office of Tahsildar, Degloor on behalf of
respondents No.2 and 3 i.e. Tahsildar, Degloor and
Collector, Nanded. Relevant statement in respect
of service of notice on the wife of the petitioner
is in para 3 of the said affidavit-in-reply, which
reads thus:

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"That, there are total 9 members in the
Grampanchayat. Out of that one post is vacant
and out of 8 members 7 members are served with
no confidence motion notice and present
Petitioner who was Sarpanch was not present at
his residential house therefore notice was
tried to serve to his wife, however, the wife
of the petitioner has refused to accept the
notice, therefore, concerned officer has
affixed the notice on the door of present
Petitioner's house and in presence of two
panchas, panchas have signed on the said
proceeding of the notice. Though there is no
separate panchanama had prepared but on page
no.16 it reveals that in presence of panchas
notice is served by affixing it on the door of
the Petitioner."

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10.Upon careful perusal of the contents of the
panchanama and statements made in the affidavit-in-
reply filed on behalf of the responsible officers
i.e. Tahsildar and Collector, it is abundantly
clear that there is variance in the contents of the
panchanama and affidavit-in-reply. The panchanama
shows that the notice was served on the wife of the

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petitioner since he was absent at the relevant
time. However, the contents of the affidavit-in-
reply filed on behalf of respondents 2 and 3
mentions that Sarpanch was not present at his
residential house, therefore, notice was tried to
be served on his wife. However, she refused to
accept the notice. Therefore, concerned officer
has affixed the notice on the door of the present
petitioner's house, in presence of two panchas and
the panchas have signed on the said proceeding.
Therefore, viewed from any angle, it appears that
there was no service of notice of no confidence
motion on the petitioner or his wife as
contemplated under the relevant Rules. The
variance in the contents of the notice and version
of respondents No.2 and 3 in the affidavit-in-reply
makes the entire case of the respondents doubtful
about service of notice either on the petitioner or
his wife. Therefore, the petition should succeed
on this ground alone. The contention of the
Counsel for the respondents No.5 to 10 and the AGP
that the petitioner did participate in the no
confidence motion on 30th April, 2012 and to that

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effect, minutes are written, is devoid of any
merits and needs no consideration. Admittedly, the
petitioner has not signed those proceedings. The
petitioner has denied his participation in the said
meeting.

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11.Therefore, taking overall view of the matter,
in my opinion, the petition deserves to be allowed.
The findings recorded by the Collector and
Additional Commissioner appear to be perverse. The
finding so far it relates to the service of notice
on the petitioner or his wife, appears to be
perverse.

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12.Hence, the impugned judgments and orders are
set aside. The petition is allowed in terms of
prayer clauses (A), (B) and (C) and stands disposed
of. Rule is made absolute in above terms with no
order as to costs.

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However, it is made clear that the
observations herein above, relate to only no
confidence motion moved by the members of the Gram

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Panchayat on 24th April, 2012 and the same is not
an expression that in future the Gram Panchayat
members are precluded from bringing fresh no
confidence motion against the petitioner.

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[ S.S. SHINDE, J ]

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Kadam.

Dilipreddy Pandharireddy Bhusgire v. the State of Mah and Ors.

Case brief

What is this about?

What did the court decide?

Dilipreddy Pandharireddy Bhusgire v. the State of Mah and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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