1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. LETTERS PATENT APPEAL NO.176 OF 2009 IN WRIT PETITION NO.5376 OF 2009 WITH CIVIL APPLICATION NO.9436 OF 2009 1. Madan Hiraman Jadhav, Age 67 years, Occ. Agri., R/o Vasantnagar, Tq. Parola, District Jalgaon. ... APPELLANT VERSUS 1. Kishor Thakarsing Jadhav, Age 34 years, Occ. Agri., R/o Vasantnagar, Parola, Tq. Parola, District Jalgaon. 2. The State of Maharashtra (Copy to be served on Government Pleader, high Court of Bombay, Bench at Aurangabad). 3. The Returning Officer, Shri U.R. Patil, Vasmatnagar, through Tahsildar, Parola, Tq. Parola, District Jalgaon. ... RESPONDENTS ----- Shri S.P. Brahme, Advocate for the petitioner Shri D.V. Tele, A.G.P. for respondent No.2 Shri S.T. Shelke, Advocate for respondent No.4. ----- 2 CORAM : S.B. DESHMUKH AND SHRIHARI P. DAVARE, JJ. DATED : 17th November, 2009. ORAL JUDGMENT (PER DESHMUKH, J.): 1. We heard learned counsel for the parties. Rule made returnable forthwith. Heard finally by consent of the parties. 2. This intra Court appeal challenges the order passed by learned Single Judge of this Court in Writ Petition No. 5376/2009. Copy of the order passed by learned Single Bench of this Court dated 20.8.2009 is on record (Page 24). Learned Single Judge of this Court issued Rule and interim relief in terms of prayer clause (C). 3. It is not in dispute that the present appellant lost the election of Member of Village Panchayat against respondent No.1 in Letters Patent Appeal. In other words, respondent No.1 is returned candidate in election of Vasantnagar Grampanchayat. After declaration of the result, the present appellant/ applicant filed application under Section 15 of the Bombay Village Panchayats Act, 1958. By this application, applicant seeks quashing and setting aside the election of the respondent No.1 3 and other consequential reliefs. Mr. Brahme, learned counsel for the appellant points out that evidence of both the parties has been recorded by the learned Election Tribunal i.e. Civil Judge, Junior Division, Parola, District Jalgaon. After recording of the evidence and filing of the praeciple for closure of evidence, according to Mr. Brahme, the learned counsel, application seeking recounting came to be filed by him. He further submits that, thus material i.e. evidence on record was led by the parties. This application seeking recounting on the grounds mentioned in the application has been allowed by the trial Court. Recounting was ordered on 17.8.2009. This order was passed by the learned Judicial Magistrate, First Class (Probably Presiding Officer is Civil Judge, Junior Division, Parola) on 3.8.2009. This order was challenged by the returned candidate i.e. respondent No.1 in an application by filing Writ Petition No.5376/2009. 4. Mr. Brahme, the learned counsel for the appellant made twofold submission. According to him, order passed by learned Single Bench of this Court in Writ Petition No.5376/2009 “is the judgment” within the meaning of clause 15 of the letters patent. He further submits that, learned Single Bench of this Court, while issuing Rule, has granted interim relief in terms of prayer clause (C) and the recounting ordered by the trial Court has been stayed in its entirety. According to him, learned Single 4 Judge should not have granted interim relief. He further submits that the general elections of the Village Panchayat, had taken place on 20.8.2005. Virtually about 5-7 months only, to go for completion of the entire period of five years. According to him petition wherein Rule has been issued by learned Single Bench, could not be heard within the period of 5-7 months and virtually by this order, Writ Petition has been made infructuous by the order of the learned Single Bench. According to him, vital rights of the appellant, therefore, have been violated by the order passed by the learned Single Bench of this Court. In short, he submits that the order passed by learned Single Bench is under Article 226 of the Constitution of India and Letters Patent Appeal is maintainable in this Court. He relied on the decision of the Supreme court in the matter of Midnapore Peoples’ Co-op. Bank Ltd. and Ors. Vs. Chunilal Nanda and Ors. (unreported judgment), copy of the judgment has been made available to us by learned counsel for the appellant. It is marked as “X” and served on learned counsel for respondent No.1 and learned A.G.P. 5. With the assistance of learned counsel Mr. Brahme, we have perused the facts illustrated by the Hon’ble Supreme Court in paragraph Nos.2 to 5 of the judgment. Mr. Brahme, the learned counsel, therefore, submits that the intra-Court appeal is maintainable and order passed by learned Single Bench being 5 perverse, seeks quashment of the said order. This judgment we have considered. The Hon’ble Supreme Court formulated two questions. From the copy made available to us by Advocate Mr. Brahme, we have seen paragraph No.12 and we find that paragraph No.13 is not available. However, we have seen paragraph No.14 from the copy which is made available to us. In that paragraph No.14, the Hon’ble Supreme Court has made reference to the letters patent jurisdiction of the Patna High Court. 6. We may notice one more judgment of the Hon’ble Supreme Court ion the matter of Ashok K. Jha & Ors. Vs. Garden Silk Mills & Anr. ( 2009 (6) Supreme 479 ). Here, matter is arising from the provisions of Bombay Industrial Relations Act. The employer i.e. Garden Silk Mills, had passed an order of transfer in relation to some employees from one Department to other Department. This order of transfer was communicated to the employees individually. In the order itself, it was clarified that there is no change in their service conditions and they will continue to receive same pay scale and all other benefits which they have been getting while working in the Department where they were earlier working. The employees, resorted to Section 42 of the Bombay Industrial Relations Act, 1946 with a request to the employer to withdraw the transfer order dated 4.5.1996. This request was not accepted by the employer. The employees 6 approached to the Labour Court by making application under Sections 77 and 78 of the Bombay Industrial Relations Act. The learned Ist Labour Court, Surat disposed of the application by common order dated 6.9.2001. Said order dated 6.9.2001, was challenged by the employees and the Union by filing a joint appeal under Section 84 of the Bombay Industrial Relations Act before the Industrial Court at Surat. The Industrial Court, Surat passed an order on 19.3.2006. The learned Member, Industrial Court, Surat set aside the order passed by learned Labour Court and directed the employer to withdraw the order of transfer. The employer challenged said order by filing Special Civil Application under Articles 226 & 227 of the Constitution of India before the High Court of Gujarat. The matter was entertained by learned Single Bench of the High Court and order came to be passed on 1.10.2007. Said order was challenged under clause 15 of the Letters Patent before the Division Bench of the High Court. The order passed by the learned Division Bench of the High Court was challenged before the Supreme Court. In this judgment, paragraph Nos.32, 33, 34 and 35 are relevant. 7. We have, given anxious consideration to the submissions of counsel and to the facts in the case on hands. Rule has been issued by the learned Single Bench of this Court. Writ Petition undisputedly is pending before this Court. Narrow 7 span of time i.e. 5-6 months in office is only remained for the members of the Village Panchayat. But then this cannot be accepted to be a reason for entertaining intra-Court appeal by this Court. Writ Petition is filed by the respondent No.1, returned candidate under Articles 226 & 227 of the Constitution of of India. Parties are raising their contentions as they think appropriate. Nomenclature and/or mentioning the Article, cannot be accepted at the threshold. In view of othe judgment of the Hon’ble Supreme Court in the case of Ashok K. Jha (supra), it is true nature of the order passed and powers exercised is important. Obviously powers exercised by learned Single Bench in the case on hand, in our view is under Article 227 of the Constitution of India. In our view, intra-Court Appeal is not maintainable. 8. Intra-Court appeal stands dismissed along with Civil Application No.9436 of 2009. Rule discharged. No costs. [ SHRIHARI P. DAVARE, J.] [ S.B. DESHMUKH, J.] fmp/lpa176.09