1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY: NAGPUR BENCH AT NAGPUR WRIT PETITION NO.1313/2011 SANJAY JAISWAL ..VS.. THE HON MINISTER AND ORS Office Notes, Office Memoranda of Coram, appearances, Court's orders of directions and Registrar's orders Court's or Judge's orders Shri G.R.Agrawal advocate for petitioner Mrs. K. Deshpande, A. G. P. for R-1 and 2 Shri N.N. Motghare advocate for R-4 Shri V. G.Dhage, advocate for R-5 CORAM : SMT. VASANTI A. NAIK, J. D A T E : APRIL 28, 2011. Heard the learned counsel for the parties. The learned counsel for the petitioner submitted that the respondent no.1 granted stay to the order passed by the Additional Commissioner on 11.1.2011 removing the respondent no.5 from the office of Sarpanch without hearing the petitioner, though a caveat was filed by the petitioner in the appeal filed by the respondent no.5 before the respondent no.1. It is submitted on behalf of the petitioner that the copy of the appeal memo and the stay application was also not supplied by the respondent no.5 to the petitioner before the order of stay was passed by the respondent no.1 on 3.3.3011. On hearing the learned counsel for the parties and on perusal of the documents on record it appears that the 2 petitioner was personally present before the respondent no.1 on 11.2.2011 and the petitioner had also filed the say / representation before the respondent no.1. It is stated in the affidavit in reply of the respondent no.1 and 2 that the hearing on the appeal was fixed on 11.2.2011 at 2.00 p.m. in the office of the Hon. Minister and the petitioner was personally present before the Minister on 11.2.2011. As the petitioner filed his say / representation to the appeal preferred by the respondent no.5, the respondent no.1 after considering the written notes of arguments and say filed by the concerned parties, was pleased to grant stay in favour of the respondent no.5. The order granting stay was passed on 24.2.2011, after hearing the parties on 11.2.2011 and after considering the replies, notes and the written arguments of the parties. Merely because no reason is recorded in the order granting stay to the order passed by the Commissioner on 11.1.2011, it cannot be said that the respondent no.1 did not consider the prima facie case. On a perusal of the representation / say filed by the petitioner before the respondent no.1, it appears that the petitioner has raised various grounds on which the petitioner sought the dismissal of the appeal. In fact several documents were also annexed to the say filed by the petitioner before the respondent no.1. It therefore, cannot be said by the petitioner that the petitioner was not heard in the matter by the respondent no.1, before granting the order of stay. 3 The petitioner had not made any grievance before the respondent no.1 about the absence of service of the appeal memo on the petitioner. It is submitted on behalf of the respondents by the learned Assistant Government Pleader that this ground has been raised by the petitioner before this court without making a grievance in that regard before the respondent no.1. It appears that the respondent no.1 had heard the petitioner and had also considered the representation / say filed by the petitioner before passing the impugned order dated 3.3.2011. It is submitted by the learned counsel for the petitioner that the petitioner took the additional charge of the office of the Sarpanch on 18.1.2011 after the Additional Commissioner passed the order on 11.1.2011. The respondent no.5 however, seriously disputes this position and states that the respondent no.5 was in office till the order of stay was granted by the respondent no.1. Be that as it may, after the respondent no1. passed the order granting stay in favour of the respondent no.5 on 24.2.2011, the respondent no.5 ought to have been placed in the office of Sarpanch as the order passed by the Additional Commissioner was stayed. Since the order passed by the Additional Commissioner on 11.1.2011 was stayed, the respondent no.5 was entitled to hold the office of the Sarpanch. The petitioner could not have taken the charge fromSarpanch the respondent no.5 after 24.2.2011 and even 4 if the charge was taken by the petitioner before 24.2.2011, the respondent no.5 ought to have been put in the office of the Sarpanch as the order dated 11.1.2011 was stayed by the respondent no.1 by the order dated 24.2.2011 which was communicated to the petitioner on 4.3.2011. The judgments reported in AIR 1983 Bombay Page 363 and AIR 1969 SC 189 are clearly distinguishable and do not support the case of the petitioner. Since there was a stay to the order passed by the Additional Commissioner on 11.1.2011, the respondent no.5 had a right to remain in office and she ought to have been placed in the office of the Sarpanch, even assuming that the charge was taken from the respondent no.5 by the petitioner, before that date. Hence, for the reasons aforesaid the writ petition is dismissed. The respondent no.1 is however directed to decide the appeal filed by the respondent no.5 as early as possible. The parties undertake to remain present before the respondent no.1 on 9.5.2011, so that issuance of notices to the parties could be dispensed with. No order as to costs JUDGE SMP