1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.7315 OF 2009 Shri. Suresh s/o Devidasrao Patil, Age: 50 years, Occ: Agri., R/o. Kaij, Tq. Kaij, District Beed. ...PETITIONER VERSUS 1. The State of Maharashtra, through it's Secretary, Urban Development Deptt. Mantralaya, Mumbai-32. 2. The Hon'ble Minister for Urban Development Deptt., Mantralaya, Mumbai-32. 3. The Secretary, Law & Judiciary Department, Government of Maharashtra, Mantralaya, Mumbai-32. 4. The Collector, Beed. 5. Chief Executive Officer, Zilla Parishad, Beed. 6. Gram Panchayat, Kaij, Tq. Kaij, Dist. Beed, through its Village Development Officer. 7. Smt. Vimaltai Nandkishor Mundada, Age: 50 years, Occ: M.L.A. Kaij Constituency, r/o. Kaij, Tq. Kaij, Dist. Beed. 2 (The then Minister for P.W.D. Government of Maharashtra, Mumbai.) ...RESPONDENTS ... Shri. S.S. Thombre, Advocate for Petitioner. Smt. Yogita K. Kshirsagar, A.G.P. for Respondent Nos. 1 to 4. Shri. V.C. Patil, Advocate holding for Shri. U.B. Bondar, Advocate for Respondent Nos.5 and 6. ... CORAM: NARESH H. PATIL AND K.K. TATED, JJ. DATE : 12TH AUGUST, 2010. ORAL JUDGMENT : (PER NARESH H. PATIL, J.) 1. Rule. Rule made returnable forthwith. 2. Heard learned counsel for the parties. 3. The petitioner was elected as Zilla Parishad Member from Constituency known as Kaij Zilla Parishad. On 31-08-2009 Kaij which was Village Panchayat was converted into Nagar Panchayat. It is contended that by an order dated 31-08-2009 which is impugned herein, the 3 petitioner was removed as a Member of Zilla Parishad under the orders passed by Officer on Special Duty to Government, Rural Development and Water Conservation Department, Mantralaya, Mumbai-32, in exercise of powers conferred under section 255(2)(ii) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 (For short, "the said Act."). 4. Shri. S.S. Thombre, learned Counsel for the petitioner submits that before passing the impugned order, the petitioner was not noticed. For want of compliance of the principle of natural justice,the impugned order deserves to be quashed and set aside. It is further submitted that merely exclusion of the area under Grampancahayat Kaij does not justify the removal of the petitioner. There are number of villages which the petitioner could have represented as Zilla Parishad Member. The petitioner being elected member, could not be removed unceremoniously by State Government, as has been done in the present case. 4 5. The respondents filed affidavit in reply and supported their action. The learned A.G.P. submits that in the light of Section 255 of the said Act, the State Government has power to remove and therefore, the State Government accordingly passed order of removal of the petitioner as Zilla Parishad Member. 6. The issue raised herein was already considered by this Court in the proceedings of Writ Petition No. 7682 of 2009 on 28-07-2010. We have set aside the impugned order therein passed by the State by allowing the said petition. We have perused the copy of the said judgment which was produced before us by the Counsel. 7. We find that the petitioner was not noticed before the impugned order was passed. He was not heard. It was expected that minimum principle of natural justice ought to have been followed before passing the order of removal of an 5 elected representative of people. Even logically, it is not convincing that there would not be any elected representative available to the people of Kaij Zilla Parishad Constituency till the next election which is likely to be held in the year 2012. Considering the provisions of Section 255 of the said Act, we find that in case an opportunity was provided to the petitioner, the petitioner would have canvassed his case before the State Government. Even otherwise, we find that the majority of villages under Kaij Zilla Parishad Constituency except Kaij Grampanchayat, are still part of earlier Kaij Zilla Parishad Constituency, and are without representative since August 2009. There is no facility of alternate arrangement being made, as law does not provide for the same, after elected representative of the said Constituency has been removed by the State Government. Even factually, nothing is placed before this Court by the State, which prompted the State Government to remove the said petitioner. In a given fact situation, the State could have 6 considered the case, while exercising power under Section 255 of the said Act, in the best interest of the people of the representative of Zilla Parishad and Panchayat Samiti Constituency. 8. In the facts of the present case, we find that the impugned order is erroneous and suffers from non application of mind. The order is passed without hearing the petitioner. For all these reasons, the impugned order dated 31-08-2009 deserves to be quashed and set aside. 9. The impugned order dated 31-08-2009 passed by respondent No.1 is quashed and set aside. We declare that the petitioner is entitled to represent the remaining area of Kaij Zilla Parishad Constituency unless the petitioner is not disqualified under any other provisions of law. 10. Rule is made absolute on the above terms. . Authenticated copy be given to the 7 learned A.G.P. and in turn, learned A.G.P. to forward copy to the concerned Ministry. [K.K. TATED, J.] [NARESH H. PATIL, J.] sut/AUG10/wp7315.09