1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.5396 OF 2009 Sow. Latabai Sidharth Jogdand, Age-38 years, Occ: Sarpanch Village Panchayat Girwali (Bavne), Tq-ambajogai, Dist-Beed. ...PETITIONER. VERSUS 1) Dattatraye s/o Pandharinath Apet, 2) Sakharam s/o Shankarrao Shinde, Both R/o- Village Girwali (Bavne), Tq-Ambajogai, Dist-Beed, 3) The Additional Collector, Ambajogai, Tq-Ambajogai, Dist-Beed, 4) The Village Panchayat Girwali (Bavne), Tq-Ambajogai, Dist-Beed, Through its Village Development Officer. ...RESPONDENTS. ... Mr.V.D. Salunke Advocate for Petitioner. Mr.S.B. Bhapkar Advocate for Respondent No.1. Mr.N.B. Patil, A.G.P. for Respondent Nos. 3 and 4. ... 2 CORAM: K.K. TATED, J. ORDER RESERVED ON : 24TH SEPTEMBER, 2009. ORDER PRONONUCED ON : 8TH OCTOBER, 2009 COURT'S ORDER : 1. With the consent of the learned counsel for the parties, matter is taken up for final hearing. Rule. Rule made returnable forthwith and matter is heard finally at the stage of admission. 2. By this Petition under Articles 226 and 227 of the Constitution of India, the Petitioner challenges the Judgment and order dated 20th July, 2009 passed by the Additional Collector, Ambajogai, Dist-Beed under Section 7 and 36 of the Bombay Village Panchayats Act, 1958 holding that the Petitioner failed to hold monthly meetings for the months of April, July and August, 2008. A few facts of the present case are as under: . The Respondent No.1 filed complaint on 29th January, 2009 before the Collector, Beed under 3 Section 7, 8, 8-A and 36 of the Bombay Village Panchayats Act, 1958 against the Petitioner for not holding monthly meetings and Gramsabha as per law. In the said complaint, the Petitioner filed reply dated 15th April, 2009 denying the allegations made by Respondent No.1. In the said complaint, Gramsevak also submitted his say by letter dated 15th July, 2009. After hearing all the parties, the Additional Collector, Ambajogain allowed the complaint / application filed by Respondent No.1 holding that the Petitioner failed to call statutory meetings as per the Bombay Village Panchayats Act, 1958 and therefore the Petitioner was dismissed from the post of member of Gram Panchayat. 3. Being aggrieved by the said order dated 20th July, 2009 the Petitioner preferred present Writ Petition on the ground that the complaint / application filed by Respondent No.1 on 29th January, 2009 was premature. The Petitioner submitted that Respondent No.1 in his complaint / application stated that the Petitioner failed to 4 call statutory meetings for the financial year 2008-2009 as per the said Act. The said application filed in the month of January, 2009, whereas the financial year 2008-2009 was for the period from 1st April, 2008 to 31st March, 2009. Learned counsel for the Petitioner further submitted that due to absence of Gramsevak, no agenda was published for the meeting of 15th August, 2008. He further submitted that Gramsevak did not co-operate for calling Gram Sabha dated 15th August, 2008 and therefore the Petitioner could not call the said meeting. Learned counsel for the Petitioner further submitted that the Petitioner immediately made complaint to the Block Development Officer against the Gramsevak on 8th October, 2008 that Gramsevak is not co-operating to call statutory meetings as required by law. Prior to that even on 2nd August, 2008 also the Petitioner made complaint against the Gramsevak. Learned counsel for the Petitioner further submitted that because of non co-operation from Gramsevak and for want of coram, the Petitioner could not call statutory meetings as per the said Act. Learned 5 counsel for the Petitioner further submitted that if for sufficient reasons the authority could not call the statutory meetings, then the said authority cannot be held responsible under under Section 7 and 36 of the Bombay Village Panchayats Act, 1958. In support of his submissions, learned counsel for the Petitioner relied on the Authority in the matter of Yuvraj s/o Dadarao Kale vs. The State of Maharashtra, reported in 2008 (1) Mah. L.R. Page 123. In this case the Bombay High Court held that merely because of non holding meetings as per the said act, disqualification cannot be incurred. In this case it is further held that inaction on the part of Sarpanch for holding statutory meetings must be without any sufficient reasons, then only he can be declared as disqualified under the said Act. Head Note (C) of the said Judgment reads as under: "(C) Bombay Village Panchayat Act, 1958 Sections 7 and 36 - Bombay Village Panchayat (Meetings) Rules, 1959, Rule 3(1) - Disqualification - Non holding of meetings of Gram 6 Sabha - Merely because of not holding meetings disqualification cannot be incurred - Such inaction on the part of Sarpanch must be without any sufficient reasons." 4. Learned counsel for the Petitioner further submitted that the impugned Judgment passed by the Additional Collector, whereas as per the said Act, powers are given to Collector only. Therefore, the impugned Judgment passed by the Additional Collector is without any jurisdiction. In support of his contention, learned counsel for the Petitioner relied on unreported Judgment in the matter of Smt. Betibai w/o Shriram Chavan vs. The Additional Collector, Nanded and others dated 31st January, 2008 in Writ Petition No.3372 of 2007. 5. Learned counsel for the Petitioner also relied on the Authority in the matter of Atmaram Chapa Sandanshiv and another vs. Shamshadbi Bashir Shah Fakir and others, reported in 2008 (3) Mh. L.J. Page 906. Head Note (b) of the Judgment reads as under: 7 "(b) Bombay Village Panchayats Act (3 of 1959), S. 16 (2) and 182 (1) - Appeal under Section 16 (2) - Jurisdiction to deal with the appeal conferred by State Government on the Commissioner - Exercise of jurisdiction by the Additional Commissioner is impermissible - Failure to raise objection or even consent by the parties in respect of exercise of jurisdiction by the Additional Commissioner will not render the order passed by him valid." 6. On the basis of these two Authorities, learned counsel for the Petitioner submitts that the impugned order passed by the Additional Collector is without any jurisdiction. He further submitted that as the Writ Petition No.3372 of 2007 (supra) is pending in this Court, the present Petition is to be admitted, interim relief to be granted and the same to be heard along with Writ Petition No.3372 of 2007. He submitted that if two Petitions involved 8 identical point and if one is admitted then the subsequent also is to be admitted. In support of his contention, learned counsel for the Petitioner relied on the Authority in the matter of Bir Bajrang Kumar vs. State of Bihar and others, reported in A.I.R. 1987 Supreme Court, 1345. In this case the Apex Court held that if identical issues involved in two Petition then the subsequent Petition is to be admitted. Head Note of this Judgment reads as under: "Constitution of India, Art. 226 - Writ petition - Admission - Two petitions involving identical point - One admitted but other dismissed by same High Court - Gives rise to a clear possibility of contradictory judgments being rendered by High Court in same case - Order dismissing second petition liable to be set aside." 7. On the basis of these submissions, learned counsel for the Petitioner states that the impugned order dated 20th July, 2009 passed by the Additional 9 Collector, Ambajogai is liable to be set aside. 8. On the other hand the learned counsel for Respondent No.1, in support of the impugned order passed by the Additional Collector, Ambajogai, dated 20th July, 2009, stated that it is crystal clear from the record and proceedings of the present case that the Petitioner failed to call statutory meetings as required by the said Act and therefore the Additional Collector rightly declared that the Petitioner is disqualified being a member of Gram Panchayat. He further submitted that the Petitioner admittedly failed to hold monthly meetings for the months of April, July and August, 2008 and 3 Gram Sabhas for the financial year from 1st April, 2008 to 31st March, 2009. He pointed out from a table reproduced by the Additional Collector in his order, how the Petitioner failed to call monthly meetings for the months of April, July and August, 2008 and 3 Gram Sabhas for the financial year from 1st April, 2008 to 31st March, 2009. Learned counsel for Respondent No.1 submitted that the Petitioner in 10 reply to Respondent No.1's complaint dated 29th January, 2009, filed reply on 15th April, 2009. In the said reply except denial the Petitioner failed to justify about not holding statutory meetings as per the said Act. Learned counsel for Respondent No. 1 submitted that though Respondent No.1 in his complaint / application dated 29th January, 2009 specifically stated in Para 3 that the Petitioner failed to call monthly meetings for the month of April, July and August, 2008, the Petitioner in her reply dated 15th April, 2009, in Para 1 stated that these facts are wrong, imaginary and allegations are made with ulterior motive. Except that the Petitioner failed to explain sufficient cause for non calling those monthly meetings. If the Petitioner failed to explain sufficient cause / reason for non calling those statutory meetings in her reply, then the Petitioner cannot raise the said objection/ reason in the present Petition under Articles 226 and 227 of the Constitution of India for the first time. Learned counsel for Respondent No.1 further submitted that in view of Section 182 11 of the Bombay Village Panchayats Act, 1958, powers are delegated to the Additional Collector for deciding complaints under Section 7 and 36 of the said Act. Section 182 of the said Act reads as under: "182. (1) The State Government may, by notification in the Official Gazette, authorize the Commissioner or any other officer to exercise any of the powers which may be exercised by the State Government under this Act. (4) Subject to the general or special orders of the State Government, the Commissioner or Collector may delegate to an officer not below the rank of Mamlatdar, Tahsildar, Naib- Tahsildar or Mahalkari, powers exercised by the Commissioner, or as the case may be, the Collector under this Act. (5) Subject to the general or special orders of the State Government, the Chief Executive Officer may delegate 12 to any officer working under a Zilla Parishad all or any of the powers exercisable by him under this Act." 9. It is crystal clear from Section 182 of the said Act that the powers are delegated to the subordinate officers including Additional Collector. 10. Learned A.G.P. appearing on behalf of Respondent No.3 submitted that the Collector as per Government Resolution dated 26th June, 1992 and letter dated 23rd December, 2008, delegated those powers to the Additional Collector. The copy of Government Resolution dated 26th June, 1992 is annexed on page 104 and copy of letter dated 23rd December, 2008 is annexed on page 116 to the affidavit in reply filed by Respondent No.3. In view of the above mentioned facts and circumstances, learned counsel for Respondent No.1 and learned A.G.P. submitted that the Additional Collector has power to decide the complaints / applications under Section 7 and 36 of the Bombay Village Panchayats Act, 1958. Therefore, 13 both the counsel submitted that the present Writ Petition to be dismissed with costs. 11. In the present case the learned counsel for the Petitioner submitted that as the Gramsevak failed to co- operate for calling statutory meetings, it remained on the part of the Petitioner to do so. Therefore, this is sufficient ground for the Petitioner for non compliance of the statutory provisions of the said Act about calling meetings. In support of this submission, learned counsel for the Petitioner relied on the Authority in the matter of Yuvraj s/o Dadarao Kale vs. The State of Maharashtra (supra). In the reported case the Sarpanch had written several letters to the authorities about non co-operation of Gramsevak; whereas in the present case the Petitioner filed her reply dated 15th April, 2009, wherein, nowhere the Petitioner explained the steps taken by her against the Gramsevak for non co- operation in calling statutory meetings as required by law. Therefore, this Authority is not helpful to the Petitioner in justifying her case. 12. The second objection raised by the learned counsel 14 for the Petitioner is about the jurisdiction/ authority of Additional Collector to decide the complaint filed by Respondent No.1. It is the contention of the learned counsel for the Petitioner that only the Collector have power to decide such type of complaints. In support of his contention, he relied on the unreported Judgment in the matter of Smt. Betibai w/o Shriram Chavan vs. The Additional Collector, Nanded (supra), and the Judgment in the matter of Atmaram Chapa Sandanshiv and another vs. Shamshadbi Bashir Shah Fakir (supra). He further submits that if on similar point earlier matter is admitted then the subsequent matter is to be admitted. For this submission he relied on the Judgment in the matter of Bir Bajrang Kumar vs. State of Bihar and others (Supra). The submissions made by learned counsel for the Petitioner are not sustainable in view of Section 182 of the Bombay Village Panchayats Act, 1958 along with Government Resolution dated 26th June, 1992 and letter dated 23rd December, 2008 as referred herein above. It seems that both these documents i.e. Government Resolution and letter are not referred to in the previous order in Writ Petition No.3372 of 2007. It is crystal clear from the Government Resolution dated 15 26th June, 1992 as well as letter dated 23rd December, 2008 that Additional Collector has power to decide the complaint filed by Respondent No.1. 10. In view of the above mentioned facts and circumstances, I do not find any reason to interfere the well reasoned impugned order passed by the Additional Collector dated 20th July, 2009. Therefore, Writ Petition is dismissed with no order as to the costs. Rule stands discharged. [K.K. TATED, J.] asb/SEPT09/wp5396.09