1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 2276 OF 2010 (Smt. Nanibai P. Bhalerao & Ors. vs. The Additional Commissioner & Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. JUNE 10, 2010. Heard Shri Kilor, learned counsel for the petitioners, Shri Sonare, learned AGP for respondent No.1 and 6 to 8 and Shri Moon, learned counsel for respondent No. 2. The short contention of Shri Kilor, learned counsel is though the Election Petition challenging election of petitioner No. 1 as Sarpanch was dismissed and that dismissal was questioned in appeal by Respondent No. 2 before Respondent No.1, Respondent No. 1 has mechanically passed impugned order on 03.05.2010 and imposed certain fetters upon the powers of petitioner No. 1 as Sarpanch. According to him, Election Petition was dismissed and no such fetters could have been imposed. Shri Moon, learned counsel has pointed out that the total strength of Gram Panchayat has to be of 7 members and the election of Sarpanch was conducted when there were only six members. He further states that notice for such election was not served upon 2 Respondent No. 2. The elections were, therefore, challenged by Respondent No. 2 directly before this Court in writ petition and this Court had then restrained the authorities from declaring the result of that election. He further states that though writ petition was disposed of, that interim order was continued for a period of one week. In this situation, after Election Petition was filed by Respondent No. 2 vide Reference Application No. 15 of 2009-10, petitioner No. 1 raised preliminary objection contending that it was barred by limitation. Respondent No. 8 – Additional Collector heard the arguments of petitioner No. 1 and respondent No. 2 only on the question of limitation but then instead of passing orders on that aspect, on 15.03.2010, erroneously passed the orders on merit and dismissed the Election Petition itself. He contends that Respondent No. 2 was not heard on merits of Election Petition at all. The learned AGP states that he has no instructions in the matter but if that be the position, the Additional Collector can be directed to rehear the matter. He further states that as the matter pertains to election, the objection on the ground of limitation and also on the merits of the matter can be considered together by the Additional Collector. Shri Kilor, learned counsel is disputing the stand of Shri Moon, learned counsel. He, however, accepts that a preliminary objection on the ground of 3 limitation was raised by the petitioners in the Election Petition. In this situation, I have perused the impugned order. The impugned order does not consider the rival contentions and no specific findings in relation thereto are recorded. Even the objection of the petitioners on the point of limitation is not mentioned therein. In the circumstances, it will be in the interest of justice if the proceedings in Reference Application No. 15 of 2009-10 are restored back to the file of Respondent No. 8 for taking fresh decision in accordance with law as early as possible and in any case within a period of eight weeks after the parties appear before it. It is an admitted position before this Court that during the pendency of Election Petition, no interim orders were operating in favour of Respondent No.2 and against the petitioner. In the circumstances, it will be appropriate if Respondent No. 8 decides the objection of petitioners on the ground of limitation and also the merits of Election Petition together. Shri Kilor, learned counsel for the petitioners, Shri Moon, learned counsel for respondent No. 2 and Shri Sonare, learned AGP for the respective respondents have no objection to such joint consideration. In the circumstances, the proceedings in appeal filed by Respondent No. 2 before Respondent No. 1 are disposed of as infructuous without recording any finding. Reference Application No. 15 of 2009-10 is 4 restored back for its further decision in accordance with law after hearing the respective parties as stated above, as early as possible and in any case within a period of eight weeks after the parties appear before Respondent No. 8. The parties to appear before it on 30th June 2010 and to abide by its further instructions in the matter. Now, it is pointed out that the petitioners have not filed any reply on merits in Election Petition. Shri Kilor, learned counsel states that the said reply will be filed by the petitioners before 30th June 2010 with its advance service on the respondents. Liberty to the petitioners to file such reply. Writ Petition is thus disposed of. Rule accordingly. No order as to costs. JUDGE *GS.