1 908 wp.6874.11 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION WRIT PETITION NO. 6874 OF 2011 Audumbar Vasant Patil. ... Petitioner Versus The Divisional Commissioner, Pune Division, Pune and others. ... Respondents ----- Mr. Mahindra Deshmukh for the Petitioner. Ms M.S.Bane, AGP for Respondent Nos.1 to 3. Mr. Umesh R. Mankapure for Respondent No.6. ----- CORAM : A.S.OKA, J. DATE : 20 th October, 2011. P.C.: 1 Heard the learned counsel appearing for the Petitioner and the learned counsel appearing for Respondent No.6. I have also heard the learned AGP appearing for Respondent Nos.1 to 3. I have perused the record of the proceedings before the Additional Collector and the Divisional Commissioner. 2 The challenge in this petition is to the Motion of No 2 908 wp.6874.11 Confidence passed against the Petitioner. The Petitioner was a Sarpanch of the Village Panchayat of Village Nagaj. There were thirteen members of the Village Panchayat. In the meeting held of the Village Panchayat on 28 th February, 2011, all nine members who attended the meeting voted in favour of the No Confidence Motion and accordingly, the No Confidence Motion was declared as passed. 3 A dispute was raised by the Petitioner by making an application under Section 35 (B) of the Bombay Village Panchayats Act, 1958 (hereinafter referred to “as the said Act”). The Additional Collector declared the No Confidence Motion as valid. An appeal preferred by the Petitioner against the said order has been dismissed. 4 Record of the proceedings of the meeting as well as the proceedings before the learned Collector and the learned Commissioner was called for on the earlier date and I have perused the record. 5 The first submission of the learned counsel appearing for 3 908 wp.6874.11 the Petitioner is that one of the nine members, who has allegedly voted in the meeting was carried near the place of meeting by an Ambulance and her signature was taken and her vote was recorded in the Ambulance without brining her to the hall where the meeting was to be held. He relied upon a decision of this Court in the case of Sou. Indubai w/o. Vedu Khairnar Vs. The State of Maharashtra & Ors [2002 (4) ALL MR 110]. The second contention is that the notice of the meeting was not served to the Petitioner. He pointed out that the case of affixing the notice made out was falsified by the affidavit of the Police Patil, which was filed before the Additional Collector who stated that he was not aware as to on which of the three houses of the Petitioner, the original notice was affixed. He invited attention of the Court to the application made by the Petitioner before the Appellate Authority on 26 th July, 2011 seeking order of remand. He submitted that even before the Additional Collector, by making an application, a permission was sought to adduce oral evidence and to examine witnesses, but the said application was erroneously rejected. He 4 908 wp.6874.11 submitted that the meeting convened on 28 th February, 2011 was after the expiry period of seven days from the date of the notice of the requisition and therefore, the meeting was illegal. He submitted that in any event, this is a case where there is a violation of the Bombay Village Panchayats (Meetings) Rules, 1959 (hereinafter referred to as “the Meeting Rules”) which govern the meetings of the Village Panchayat. He submitted that the Rule 17 of the Meeting Rules is mandatory. He submitted that the meeting was held in the breach of the Rule 17 of the Meeting Rules which is a mandatory Rule. He, therefore, submitted that No Confidence Motion allegedly passed against the Petitioner is illegal. 6 As far as the first submission is concerned, the same has been already dealt with by the order dated 5 th September, 2011. The judgment of the Appellate Authority shows that no such contention was raised before it. This Court has dealt with the submission of the Petitioner that the said point was urged before the Divisional Commissioner, but the same was not dealt with. This Court has 5 908 wp.6874.11 already observed in the said order that in the memorandum of writ petition, it is not at all the case made out by the Petitioner that the said point was urged at the time of hearing of the appeal before the Divisional Commissioner. Whether the member who was brought in an Ambulance was carried to the meeting hall or whether the vote was recorded while the member was in Ambulance are the factual aspects of the matter which should have been agitated before the Appellate Authority. It is not the case made out in the writ petition that the said contention was agitated, but the same was not decided. The Petitioner has not moved the Appellate Authority for clarification. Therefore, the first point cannot be allowed to be urged for the first time in the writ petition. 7 As far as the service of notice is concerned, both the authorities have dealt with this aspect in the impugned orders. Perusal of the judgment of the Additional Collector shows that the service report of the Village Talathi submitted through the Tahsildar was considered. Reliance has been placed on the Panchanama recorded 6 908 wp.6874.11 while affixing the notice on the residential premises of the Petitioner. 8 Reliance was placed by the Petitioner on an application made before the Additional Collector for seeking permission to lead evidence. The report of the Talathi records that the attempts were made to serve the notice to the Petitioner on three occasions, but the Petitioner declined to accept the notice and therefore, on 25 th April, 2011, in the afternoon, at the time mentioned in the report, the notices were affixed in the presence of the Pancha Witnesses. The Petitioner has relied upon an affidavit of the Police Patil. In the affidavit, it is merely stated that he was not aware as to out of three houses, the main copy of the notice was affixed on which house. He has stated that he was not aware of the house of the Petitioner which the Village Kotwal had visited for effecting service. The report of the Talathi is that on three houses of the Petitioner, the notice was affixed in presence of the Pancha Witnesses. Therefore, the affidavit of village Police Patil will not advance the case of the Petitioner in any manner. The prayer in the application made before the Additional Collector was that the 7 908 wp.6874.11 Petitioner be permitted to lead evidence and the village Talathi be ordered to produce extracts of the property register in respect of three houses of the Petitioner. The said application has been rightly rejected relying upon the panchanama of service and the report of the Talathi. 9 As far as the application for remand which is annexed to the petition on page No.50 is concerned, the perusal of the record of the appeal shows that the said application is not at all on record of the Appellate Authority. The issue regarding service of notice of requisition to the Petitioner has been concurrently answered by both the authorities against the Petitioner. I find no reason to interfere with the said findings in the writ jurisdiction. 10 As far as the requisition is concerned, the same was filed on 21 st February, 2011. Admittedly, the seventh day i.e. 27 th February, 2011 was falling on Sunday and therefore, the meeting was convened on 28 th February, 2011. If the day of 21 st February, 2011 is excluded, the meeting held on 28 th February, 2011 was on the seventh day. 8 908 wp.6874.11 Therefore, there is no merit in the said contention. 11 The other contention which was allowed to be canvassed by this Court is as regards the violation of the Meeting Rules and in particular, Rule 17. The learned counsel appearing for the Respondent No.6 has relied upon the judgment and order dated 26 th July, 2011 of this Court passed in the Writ Petition No.167 of 2011 (Vishu R. Patil Vs. Group Gram Panchayat, Kharivali & Ors) alongwith other connected writ petitions. The decision of this Court on the aspect of the applicability of the Meeting Rules is that the said Rules cannot be said to be mandatory and the Rules will have to be held as directory. It is true that it is pointed out that a Letters Patent Appeal preferred against the said judgment has been admitted by this Court. However, so long as the said judgment it is not set aside, the ratio of the judgment continues to bind this Court. Therefore, the proceedings of the meeting were not vitiated because of the non-compliance with the Meeting Rules. 9 908 wp.6874.11 12 Out of thirteen members, nine members who were present, have voted against the Petitioner. There is no reason to interfere with the concurrent orders passed by both the Authorities below. 13 The writ petition is accordingly rejected. There will be no order as to costs. 14 The learned counsel appearing for the Petitioner prays for continuation of the ad-interim relief which prayer is opposed by the learned counsel appearing for Respondent No.6. 15 Considering the fact that the Court is closed for October vacation from 22 nd October, 2011 to 7 th November, 2011, even a copy of this judgment will be available thereafter. The ad-interim relief was granted by this Court on 25 th August, 2011. The said ad-interim relief will continue to operate till the 23 rd November, 2011. [ A.S.OKA, J ]