( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 6089 OF 2009 Sau. Shilabai w/o Raghuraj Hare, R/o Jawalgaon, Tq. Ambajogai, District Beed. PETITIONER VERSUS 1. The State of Maharashtra, through the Additional Collector, Ambajogai, District Beed. 2. Village Grampanchayat, Jawalgaon, Tq. Ambajogai, Dist. Beed, through its Gramsevak. 3. Meghraj s/o Bhagwanrao Hare, R/o Jawalgaon, Tq. Ambajogai, District Beed. 4. Jeevan s/o Nanasaheb Kirdant, R/o as above. 5. Kondiba s/o Janardhan Katare, R/o as above. 6. Shivaji s/o Namdeo Gavhane, R/o as above. 7. Sou. Ahilyabai w/o Sundar Salunke, R/o as above. RESPONDENTS ..... Mr. K.J. Suryawanshi, advocate for the petitioner. Mr. D.R. Kale, AGP for the respondent No. 1/State. Mr. A.P. Piratwad, advocate for the respondent No.2. Mr. S.B. Bhapkar, advocate for the respondents No. 3 to 7. ..... ( 2 ) [CORAM : V.R. KINGAONKAR, J.] [DATE : 25th February, 2010] ORAL JUDGEMENT : 1. Challenge in this petition is to order rendered by learned Additional Collector, Ambajogai, in proceedings of appeal No. 7/2009 under section 7 and 36 of the Bombay Village Panchayats Act, 1958 (for short, “the BVP Act”). By the impugned order, the petitioner was declared as disqualified to continue in the office as Sarpanch of village panchayat, Jawalgaon. 2. The petitioner was elected as member of the village panchayat after results of election held on 7th October, 2007 had been declared. In all eleven (11) members were declared as elected, including the respondents No. 3 to 7. The petitioner was elected as Sarpanch on 9th December, 2007. The respondent No. 3 had filed earlier Election Dispute, challenging the election of the petitioner as Sarpanch. The election of the ( 3 ) petitioner was set aside by order dated 27th June, 2008 rendered by the Collector. The petitioner challenged said order by filing an appeal which is pending before the Divisional Commissioner. There is no dispute about the fact that in the said appeal, stay order was issued on 13th August, 2008 and, therefore, she continued to remain in the office. The respondents No. 3 to 7 are members of the rival groups. They filed application on 13th October, 2008 claiming declaration that the petitioner had become disqualified to hold the post of Sarpanch for the reason that required number of Gram Sabhas were not called and that the monthly meetings were also not held, as contemplated in the provisions of the BVP Act. Their application was, however, not processed at that time. They filed yet another application on 17-02-2007 whereby they sought declaration that the petitioner had become disqualified to continue as Sarpanch for the reason that required number of Gram Sabhas were not called, nor the monthly meetings were called as contemplated under the provisions of the BVP Act. The learned Additional Collector issued notice to the petitioner and called for ( 4 ) the record. The parties were heard. The learned Additional Collector came to the conclusion that the petitioner had not called for monthly meetings during February, 2008 to June, 2008. It was noticed that the notice of the monthly meetings was not duly served on the respondents No. 3 to 7 for the adjourned meeting dated 11-09-2008. The learned Additional Collector further found that service of notice was not in accordance with the Rule 7 of the Bombay Village Panchayats (Meetings) Rules, 1959 (for short, “the Meetings Rules”). Considering the lapses committed by the petitioner, it was held that she was disqualified to continue as Sarpanch. Feeling aggrieved, she has filed the present petition. 3. Heard learned counsel for the parties and learned A.G.P. 4. So far as non-compliance of section 7 of the BVP Act is concerned, I find that there is hardly any material to hold that the petitioner did not call for Gram Sabha meetings during the relevant period as ( 5 ) contemplated under the relevant provisions of the BVP Act. The tabular information stated in the impugned order reveals that in all nine (9) Gram Sabhas were called during the period of one year between August, 2008 to March, 2009. Nor, there is specific finding of the Collector that the petitioner failed to call the Gram Sabhas. Needless to say, she cannot be regarded as disqualified to continue in the office as Sarpanch for the reason of non-compliance of Section 7 of the BVP Act. 5. The only question is whether she failed to comply with section 36 of the BVP Act. The relevant provision under section 36 reads as follows. “36. Time and place of sitting of panchayat and procedure at meetings. - The time and place of sitting, and the procedure at a meeting, of the panchayat shall be such as may be prescribed ; The proviso appended to section 36 clearly shows that if ( 6 ) the Sarpanch, or in his absence the Upa-Sarpanch, fails without sufficient cause, to convene the meetings of the panchayat in any financial year according to the rules prescribed in that behalf, he shall be disqualified for continuing as Sarpanch or, as the case may be, Upa- Sarpanch. Needless to say, the meetings are required to be summoned as provided under the Meetings Rules. Rule-3 of the Meetings Rules contemplates that at least once in a month, the Panchayat shall meet. The expression “at least” preceded to further expression “once in every month” as used in Rule 3 (1) will indicate that the Rule is peremptory in nature. It would be necessary to consider the manner in which the notice of such meetings is required to be served. Rule-7 of the Meetings Rules provides that the notice under the Rules shall be served personally by delivering or tendering it to the member to whom it is addressed and if he is not found, by substitution, on an adult male member of his family or by affixing it, in the presence of two witnesses, on the outer door or some other conspicuous part of the house. The law takes care to ensure due service on each member of the village panchayat so as to ensure that elected ( 7 ) members are not kept in dark regarding the affairs of the village panchayat. The service of notice is, therefore, required to be effected in the manner provided for under Rule 7 of the Meetings Rules. 6. The fact situation in the present case shows that the petitioner claimed to have convened the monthly meetings as required under the law. Yet, no record was produced to show that such meetings were held for the period between February to August, 2008. Even in this Court, no such record is produced. The learned Collector noticed that some manipulation was also made in the proceedings of the monthly meetings and that the petitioner explained that the meeting dated 29th August, 2008 was suspended and thereafter, it was recalled on 11th September, 2008. It was found that the respondents No. 3 to 7 were not served with the notice. This is a finding of fact. 7. From the record, it appears that no separate notices were issued and served on the members. The contention of the petitioner is that relevant register ( 8 ) was being circulated amongst the members in order to notify them about the monthly meetings. The counsel for the petitioner would point out that there is entry in the register dated 24th September, 2008 that the respondents No. 3 to 7 refused to sign the register though it was presented to them. He would contend that the respondents No. 3 to 7 were bent upon to show exit to the petitioner and were making attempt to create record to show that the monthly meetings were not being convened by her. It is contended that the action initiated by the respondents No. 3 to 7 was malafide and vindictive. I find it difficult to countenance such argument. There cannot be duality of opinion that the respondents No. 3 to 7 were members of the opposite group. It is also probable that they were not happy with working of the petitioner and wanted her to lay down papers of her office. It does not, however, mean that the averments made by them were factually incorrect. The petitioner was at liberty to produce the relevant record in order to demonstrate that the monthly meetings, in fact, were held as required under the law. ( 9 ) 8. It need not be reiterated that there is no record to show that the monthly meetings were held for the period between February, 2008 to August, 2008. So also, the issuance of notice was not in keeping with the purport of Rule-7 of the Meetings Rules. If the respondents No. 3 to 7 had refused to sign the relevant register, a separate notice could be affixed on the door of the houses of each of them as per the Rules. The endorsement on the relevant register dated 28th September, 2008. does not show that a separate notice was tendered to each of the member. It is necessary to deliver the notice personally and to obtain the acknowledgement or if the member refused to give the acknowledgement, then to pass such endorsement on the relevant notice and thereafter to make an attempt to effect the substituted service. That was not done. 9. The counsel for the petitioner would submit that there was substantial compliance of section 36 of the BVP Act. The law does not recognize substantial compliance as an excuse to avert the action for disqualification. What is necessary for the Sarpanch or ( 10 ) Upa-Sarpanch to avert such action for disqualification is to give satisfactory explanation and justification for not holding of the monthly meetings. For, it is possible that due to some contingencies, such a meeting may not be held in a given month. The Sarpanch or Upa- Sarpanch, as the case may be, is required to prepare record of satisfactory reasons to demonstrate as to why the monthly meeting could not be held. The drastic action of disqualification is provided for in order to put the Sarpanch or Upa-Sarpanch on right track in the matter of administration of the affairs of the village panchayat. The apathy of the Sarpanch to convene the monthly meetings will entail the disqualification. In this view of the matter, the impugned order of the learned Additional Collector cannot be faulted with. 10. In the result, the petition is dismissed. The Rule discharged. [ V.R. KINGAONKAR ] JUDGE NPJ/wp6089.09 ( 11 )