WP.9445-10 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION No. 9445 OF 2010 Mr. Bhausaheb Jagtap & Ors. ...Petitioners Vs. Satali Village Panchayat Satali & Ors. ...Respondents *** Mr. P. N. Joshi, for the Petitioners. Mr. R. M. Patne, AGP for Respondent Nos. 5 to 7. *** CORAM: V. M. KANADE J. DATE : MARCH 15, 2011 P.C. 1. Heard the learned counsel appearing on behalf of the petitioners and the learned AGP appearing on behalf of Nos. 5 to 7. The petitioners were members of respondent No.1-Satali village Grampanchayat. The total strength of the Managing Committee was of 7 members. The petitioners, however, tendered resignation which was accepted. The grievance of the petitioners is that since 4 out of 7 members had resigned, the State Government ought to have dissolved the Panchayat in view of provisions of Section 145 (1-A) of the Bombay WP.9445-10 - 2 - Village Panchayats Act, 1958 (hereinafter referred to as the said “Act”). Secondly, it is submitted that no hearing was given to the petitioners before the decision was taken by the Commissioner to hold bye- elections. Reliance has been placed on the provisions of Sub-Section (1-A) of Section 145 of the Act, and Division Bench Judgment of this Court, in the case of – Kavita Sakharam Chavan & Ors. v. Commissioner, Kokan Division, Navi Mumbai & Ors. [2003(2) Bom.C.R.821 : 2002(4) All. M.R.741]1 and judgment of the learned Single Judge of this Court in the case of – Janardhan Kishanrao Gawande, Petitioner vs. State of Maharashtra & Ors., Respondents [2004(Supp.) Bom. C.R.561]2. The submissions made by the learned counsel for the petitioners cannot be accepted for the following reasons. The State Government has delegated its power to the Commissioner to take the decision under Section 145 (1-A) of the Act. 2. Before dealing with the contention raised by the learned counsel appearing for the petitioners, it is necessary to examine the provisions Section 145(1-A) of the Act, which reads as under - “If more than half the total number of seats in a Panchayat have become vacant, the State Government may, by 1 2003(2) Bom.C.R. 821 : 2002(4) All. M.R. 741. 2 2004 (Supp) Bom. C. R. 561. WP.9445-10 - 3 - order in the Official Gazette, dissolve such Panchayat.” 3. Perusal of the said provision clearly indicates that discretion is vested in the State Government to take decision on the resignation of more than fifty per cent of members of the village Panchayat, either to dissolve the village Panchayat or the Commissioner is empowered to hold bye-elections in respect of posts which have become vacant on account of resignation of the members. The said provision, therefore, is directory and not mandatory, and therefore, in each and every case when fifty per cent of the members resigned, the Government need not order dissolution of the village Panchayat. In the present case, therefore, the State Government has refused to exercise the discretion vested in it to dissolve the village Panchayat and the Commissioner to whom power is delegated by the State Government has ordered bye-elections of the four posts which have become vacant. The submissions made by the learned counsel for the petitioners, therefore, that the Commissioner ought to have ordered dissolution, cannot be accepted. 4. Secondly, the ratio of the judgment on which reliance is placed by the petitioner, will not apply to the facts in the present case. In the said two cases on which reliance is placed by the petitioners, the State Government had directed dissolution of the village Panchayat WP.9445-10 - 4 - without hearing the members whose terms are not expired and under these circumstances, both the Division Bench and the learned Single Judge came to the conclusion that while exercising the power under Section 145(1-A), the State Government ought to have given hearing to the members who had not resigned. In the present case, petitioners have resigned from their posts. Therefore, there is no question of giving hearing to them. Secondly, the State Government has not passed the order of dissolution and therefore, question of giving hearing to the petitioners, even otherwise, does not arise. Therefore, there is no merit in the submissions made by the learned counsel for the petitioners. 5. Apart from that, the bye-elections have already taken place and therefore, the petition has become infructuous. Writ Petition is, therefore, dismissed. [ V. M. KANADE J.]