1 W.P.5409.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5409 OF 2011 Vijaymala Babasaheb Hiwale, Age : 42 Years Occup. Sarpanch G.P. Manepuri, R/o Manepuri, Ta. Ghansangvi, District Jalna. ...PETITIONER. VERSUS The Divisional Commissioner, Aurangabad and others. ...RESPONDENTS. ... Shri.G.B.Kullkarni, Advocate for Applicant. Shri.K.B.Choudhari, A.P.P. for Respondents. ... CORAM: S.V.GANGAPURWALA, J. DATE : 22ND JULY, 2011. PER COURT : 1. No confidence motion was moved against present petitioner, who is sarpanch of village Manepuri, Tq. Ghansangvi, District Jalna. There were seven members of the said Gram Panchayat. No confidence motion was passed by six members to one. The petitioner challenged the said no confidence motion passed against her before the Additional Collector, Jalna. The Additional Collector, Jalna rejected the said proceeding. 2 W.P.5409.11 Aggrieved thereby, the petitioner filed Appeal before the Divisional Commissioner. The Divisional Commissioner also dismissed the Appeal. Aggrieved thereby present Writ Petition is filed. 2. Shri Kulkarni, learned counsel for the petitioner strenuously contended that the petitioner had raised specific plea that there was no discussion in respect of the subject matter in the meeting scheduled for passing no confidence motion. The petitioner was not allowed to speak on the said motion. The petitioner had specifically brought this fact to the notice of the authorities by filing affidavit and contents of the said affidavit were not denied, but this aspect is not considered by the authorities. The learned counsel further contended that even otherwise two of the members were disqualified in view of the fact that they did not get their validity certificates within four months as contemplated in Government Resolution dated 08th June 2011. 3. According to the learned Counsel, in view of the said resolution said two members automatically stand disqualified since the date of their election as it has been given retrospective operation. As such, the learned counsel contended that the impugned orders are illegal, null and void. The learned counsel in support of his submission placed reliance on the 3 W.P.5409.11 judgment of the Division Bench of this Court in the Case of Ashok Krishnakant Mehta Vs. State of Maharashtra and others reported in 2000 (3) ALL M R 772 and Judgment of the learned Single Judge of this Court in the case of Vijay Ramchandra Katkar Vs. Group Gram Panchayat Pali and others reported in 2010(6) Bom.C.R.708. 4. With the assistance of the learned counsel for the petitioner, I have gone through the judgments, no confidence motion has been passed by six members to one and the total members of the said Gram Panchyat are seven. All these six members have filed their say and have contended that the said respondents have signed the proceeding and the petitioner was given opportunity to put forth her stand and she was allowed to speak in the meetings, but the petitioner did not speak anything. It is the petitioner who did not avail the opportunity which was given to her. The authorities had also taken into consideration the said aspect. The Commissioner in his judgment has also considered the fact that liberty was given. In view of the factual determination that liberty was given to the petitioner to discuss on the said motion, the Judgments in the cases of Ashok Krishnakant Mehta and Vijay Ramchandra Katkar as referred supra would not be applicable. 4 W.P.5409.11 5. Further, other ground raised that two members were disqualified, as they did not submit their validity certificates within four months is concerned, same cannot have bearing in the present matter, as even if it is assumed that they are disqualified, still section 35 of the Bombay Village Panchyat Act requires that a motion of no confidence may be moved by not less then 1/3 rd of the total number of the members, who are for the time being entitled to sit and vote at any meeting, in case of the sarpanch belonging to the reserved category same would be ¾ of the total numbers of the members, who are for time being entitled to sit and vote and in such circumstance, it would still be the fact that motion is passed by ¾ by the members, as such that argument would be of no avail. The disqualification of the said two members is not subject matter in the present petition. The contention that there is nothing on record to show that liberty was given to the petitioner cannot be considered at this stage, in view of the fact that both authorities have concurrently on the basis of say filed by all members held that opportunity was given. This Court would not embark upon the disputed question of fact. In view of the above, there is no merit in the Writ Petition. The Writ Petition is dismissed with no order as to costs. Sd/- [ S.V. GANGAPURWALA, J. ] MTK 5 W.P.5409.11