wp11366.10 -1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 11366 OF 2010 Vishwas Namdev Patil ...Petitioner Versus The State of Maharashtra and others ...Respondents ..... Mr. A.S. Deshpande, advocate for the petitioner Mrs. V.A. Shinde, A.G.P. for respondent No.1 Mr. V.D. Salunke, advocate h/f Mr. Shrikant S. Patil for R. Nos. 2 to 6. ..... CORAM: S. S. SHINDE, J. DATED: 20TH DECEMBER, 2010 PER COURT:- 1 This writ petition is filed challenging the decision rendered by the Additional Commissioner, Nashik Division, Nashik in Gram Panchayat Appeal No. 84 of 2010 on 29.11.2010 thereby confirming the decision of the Additional Collector, Dhule dated 27.9.2010 in Gram Panchayat Dispute No. 33 of 2010. 2 This petition raises two important points viz. i) whether the no confidence motion could be permitted to be passed and sustained in the eye of law in absence of service of notice on the petitioner of the meeting wherein said no confidence motion has been passed? and ii) Can a no wp11366.10 -2- confidence motion passed without affording the petitioner an opportunity to address the meeting conveyed to discuss the same, in total distortion of the principles of natural justice? 3 Heard counsel for the respective parties at length. 4 Learned counsel for the petitioner invited my attention to the impugned judgment and orders passed by the Additional Collector as well as Additional Commissioner. Learned counsel submits that the Talathi, who was examined before the Collector, in his cross examination has stated that he does not recognize the signature of Sarpanch. Counsel invited my attention to the fact that it is stated by him that he is understood the instructions issued by Tahsildar for effecting the service of no confidence motion. According to the counsel for the petitioner, when Talathi has obtained signature of the Sarpanch while serving notice, his statement that he does not recognize the signature of Sarpanch goes to the root of the matter. Counsel further submitted that Gram Sevika namely Smt. Poonam Bhaskar Shinde was examined before the Collector, in which she had deposed that the signature of the petitioner herein in the proceeding of the Gram Panchayat all the times are in English. He further invited my attention to the fact that even Gram Sevika was not aware of the service of no confidence motion on the Sarpanch and further proceedings. The submission of counsel for the petitioner is that the petitioner herein has singed all proceedings of Gram wp11366.10 -3- Panchayat in English and he has never signed in Marathi. Learned counsel further invited my attention to the fact that the police Patil has filed affidavit stating therein that his signature is obtained subsequently and at the time of service of notice he was not present. Learned counsel further submitted that statement of Talathi that the petitioner is duly served has not been supported by either by police Patil, Gram Sevika or Kotwal. Learned counsel further submitted that since the notice of confidence was not served on the petitioner, the petitioner Sarpanch had lost valuable right of addressing the members in a meeting called to discuss about no confidence. Learned counsel further submitted that the procedure of service of notice laid down under Section 35 of the Bombay Village Panchayat Act is mandatory and same has not been followed in the instant case. In support of his contention, he placed reliance on the reported judgment of this Court in the case of Indubai Vedu Khairnar Vs. State of Maharashtra and others, reported in 2003 (2) Bom. C.R. 239. Learned counsel further invited my attention to the reported judgment in the case of Bhika Narayan Vs. State of Maharashtra, reported in 2002 (1) Bom. C.R. 186 and submitted that effective service of notice is contemplated under Section 35 of the Bombay Village Panchayat Act it is not mere formality. Counsel further invited my attention to the findings recorded by the Additional Collector and the Additional Commissioner and submitted that the Additional Commissioner has observed that, wp11366.10 -4- "notice might have been served on the family members of the petitioner". According to the counsel for the petitioner, this itself indicates non application of mind on the part of the Additional Commissioner. Therefore, according to the counsel for the petitioner such observation are contrary to the record and thereby perverse findings are recorded by the Additional Commissioner. Learned counsel for the petitioner submitted that service upon another family member is not good service as held by this Court in the case of Indubai Vedu Khairnar (Supra). He invited my attention to para 7 of the said judgment. Learned counsel further submitted that in the instant case, the authorities have not adhered to the principles of natural justice. Counsel invited my attention to the reported judgment of the Hon’ble Supreme Court in the case of Management of M/s. M.S. Nally Bharat Engineering Co. Ltd. vs. State of Bihar and others, reported in (1990) 2 SCC 48 and more particularly para 25 and also another judgment of the Hon’ble Supreme Court in the case of Mohd. Yunus Khan Vs. State of U.P. And Ors. Reported in 2010 AIR SCW 6089 and more particularly para 32 of the said judgment and submitted that the proceedings without notice is not permissible. The sum and substance of arguments of counsel for the petitioner is that the authorities have not followed the principles of natural justice. The petitioner is not given opportunity to participate in the meeting since notice of no confidence motion was not served on the petitioner. Counsel further invited my attention to the grounds taken before the Additional wp11366.10 -5- Collector and submitted that at the relevant time, the petitioner was out of station at the place of his sister and he returned back at 4.00 p.m. on the date of no confidence motion. Learned counsel further invited my attention to pleadings and grounds taken in the petition and annexures thereto and submitted that when it is mandatory to serve notice of no confidence motion, the notice is not served on the petitioner and therefore, this petition deserves to be allowed by setting aside the proceeding of no confidence motion as well as the judgment and order of the Additional Collector and the Additional Commissioner. 5 On the other hand, learned counsel for the respondents submitted that the main question, which is involved in this petition is as to whether the petitioner was properly served by the Talathi or not?. Counsel further submitted that the Additional Collector as well as the Additional Commissioner, on the strength of evidence brought on record and after giving proper opportunity to the parties, have concurrently held that the petitioner is served by the Talathi. Learned counsel further submitted that no confidence motion is passed against the petitioner by five members out of seven. According to the counsel for the respondent, all seven members were served by Talathi. The statement of Talathi in respect of service of notice is recorded by the Additional Collector and on the basis of said statement and other documents placed on record, the Additional Collector has held that the petitioner is properly served. According to the counsel for the respondents, no confidence motion was wp11366.10 -6- passed after following due procedure. Learned counsel further invited my attention to the fact that Police Patil had filed only affidavit, however, he was not examined. He further submitted that the Additional Collector as well as Additional Commissioner have observed that due some political reasons the Police Patil has taken contrary stand and he has not denied his signature on the service report of notice. Learned counsel further submitted that the contention of the petitioner that from the day of notice till no confidence motion was passed, the petitioner was out of station at the place of his sister is falsified by the findings recorded by the Additional Commissioner that on 25.8.2010 the petitioner did apply for requisition notice. In support of his contention, learned counsel placed reliance on the reported judgment of this Court in the case of Nimba Rajaram Mali Vs. Collector, Jalgaon and others, reported in 1999 (1) Bom. C.R. 546 and on an unreported judgment of this Court in the case of Anandsing Dongar Kuwar Vs. State of Maharashtra, through Tahsildar, Sakri and others, (Writ petition No. 4529 of 2009 decided on 13.11.2009) and more particularly para 11 and 14 of the said judgment. The sum and substance of the arguments of counsel for the respondents is that the Additional Collector as well as the Additional Commissioner have concurrently held that the notice is properly served by the Talathi on the petitioner and therefore, this Court may not interfere wp11366.10 -7- in the extra ordinary writ jurisdiction of this Court under Article 227 of the Constitution of India. 6 I have given due consideration to the submissions advanced by the counsel for the respective parties. In my opinion, if the notice served on the petitioner by the Talathi is considered to be proper in that case other aspects of the matter need not be taken care of. I have carefully perused the impugned judgment and orders passed by the Additional Collector as well as Additional Commissioner. Upon perusal of the same, I find that both the authorities on the basis of evidence and material brought on record have recorded a finding of fact that the petitioner was served by Talathi. Both the authorities have referred to the statement of Talathi and also the documents which were placed on record. The impugned judgment also takes notice that the necessary panchnama is prepared to that effect which is also signed by five panchas. That apart, the stand taken by the Police Patil in his affidavit that he was not present at the time of service of notice by Talathi on the petitioner is negatived by both the authorities and on the contrary observations are made that the Police Patil has taken such different stand due to some political reasons. 7 It is true that the Additional Commissioner has travelled beyond the pleading and made some erroneous observations that Talathi might have served notice on the family members of the petitioner. In fact the specific case of the petitioner is that the petitioner is not served by Talathi. wp11366.10 -8- Therefore, it was not the case of either of the parties that the notice is served on the relative of the petitioner. However, question remains that whether such stray observations made by the Additional Commissioner is sufficient to interfere in the concurrent findings recorded by the Additional Collector as well as the Additional Commissioner that the notice was properly served on the petitioner by Talathi. This court had an occasion to consider the scope of writ petition under Article 227 in the case of Babulal s/o Navalmal Pipada Vs. Dropadabai Manohar Gore and others, reported in 2010(5) Mh.L.J. 845 and this Court has taken a view that the writ jurisdiction cannot be invoked for re-appreciating the evidence or for the purpose of rectification of the minor error committed by the Tribunals, unless it is demonstrated that the view taken by the forum is per se against the settled principles of law. Therefore, in my opinion, the Additional Collector as well as Additional Commissioner, on the basis of the evidence brought on record by the parties and after examining the Talathi by the Additional Collector, have taken view that there was proper service on the petitioner by Talathi. It is also relevant to mention that Police Patil has not denied his signature or it was not his case that he has not signed the service report. It is his contention, as reflected through the affidavit that he was not present at the time of service of notice. However, the said contention has been negatived by the Additional Collector as well as Additional Commissioner. 8 In the instant case, both the forums have concurrently held that wp11366.10 -9- there was proper service on the petitioner by Talathi and said findings are recorded on the basis of the statement of Talathi and also other material brought on record. Therefore, in my opinion, it is not necessary to address any other issue. Suffice it to say that the concurrent findings recorded by the Additional Collector as well as the Additional commissioner are in consonance with the material on record. No interference is warranted. Writ petition is devoid of any merits and same stands dismissed. ( S. S. SHINDE. J.) rlj/