1 W.P.No.5589/11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.5589 OF 2011. Gangaram S/o Shrimantrao Ghumare, Age 45 years, Occ.Agri., R/o Valipur, Tal. & Dist. Beed. ... Petitioner. Versus 1. The State of Maharashtra, through its Secretary, Rural Development Department, Mantralaya, Mumbai. 2. The Additional Divisional Commissioner, Aurangabad Division, Aurangabad. 3. The Additional Collector, Beed. 4. Rajendra S/o Radhakrishna Raut, Age 33 years, Occ.Advocate, R/o Nalwandi, Tal. & Dist. Beed. ... Respondents. ... Mr.S.S.Thombre, advocate for the petitioner Mr.P.P.More, Asstt. Govt.Pleader for the State. Mr.S.J.Salunke, advocate for Respondent No.4. ... 2 W.P.No.5589/11 CORAM : S.V.GANGAPURWALA,J. Date : 20.09.2011. ORAL JUDGMENT : 1. Heard. 2. Rule. Rule returnable forthwith. With the consent of the parties, the petition is taken up for final hearing. 3. The present Respondents have filed proceedings U/s 40 of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 (hereinafter referred to as the said Act). The same were filed before the Collector. The Collector, sought opinion from the Commissioner regarding his powers to entertain the said petition. The Additional Commissioner pursuant to the said letter of Collector seeking opinion issued notices to the parties and took up the proceedings with himself. The present petitioner filed an application raising preliminary objection regarding the maintainability of the 3 W.P.No.5589/11 proceedings before him. The objection raised by the petitioner can be culled out as under : (i) The proceedings are not filed before the Additional Commissioner and as such the Additional Commissioner can not take cognizance of the same and can not entertain the same. The proceedings were filed before the Collector, who had no jurisdiction under the statute. (ii) In view of the nature of the averment made in the complaint, the proceedings U/s 40 are not maintainable and the said dispute can be entertained only by way of an Election Petition as contemplated U/s 27 of the said Act. 4. The Additional Commissioner rejected the said application. Aggrieved thereby, the present petition is filed. 5. Mr.Thombre, learned counsel for the petitioner submits that the Commissioner has not decided the objection raised by the petitioner and has rejected the application on altogether different grounds. The petitioner had not raised 4 W.P.No.5589/11 objection that it is only the Commissioner and not Additional Commissioner who can deal with the matter but the objections were two-fold as referred supra. The learned counsel relies on the judgment of the learned Single Judge of this Court in a case of "Shrikrishna Wasudeo Dhage Vs. Shivcharan Trimbakrao Kalne and others" reported in 2010 (3) Bom.C.R. 635 and contends that proceedings U/s 40 of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 are not maintainable. 6. Mr.Salunke, learned counsel for the Respondents submits that the said objection raised by the petitioner is not countenance by law in view of the judgment of the Division Bench of this Court in a case of "Santosh Chandansingh Rawat Vs. Divisional Commissioner and others" reported in 2010 (3) Bom.C.R. 868. 7. Mr.Salunke, learned counsel further contends that in view of the judgment of the Division Bench of this Court, the said issue is not required to be again decided by the 5 W.P.No.5589/11 Commissioner. 8. When an objection is raised by a party, the authority is required to deal with the said objection. Section 40 of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 reads as under : "40. (1) Subject to the provisions of sub-section (2) of Section 62, if any Councillor during the term of his office - (a) becomes disqualified under sub-section (1) or (4) of section 16, or (b) is, for a period of six consecutive months (excluding in the case of the presiding authority the period of leave duly sanctioned) without the permission of the Zilla Parishad, absent from meetings thereof [or is absent from such meeting for a period of twelve consecutive months], the office of such 6 W.P.No.5589/11 Councillor,shall, notwithstanding anything contained in clause (c) of sub-section (1) of Section 9 becomes vacant. (2) If any question whether a vacancy has occurred under this section is raised either by the Commissioner suo motu or on an application made to him by any person in that behalf, the Commissioner shall decide the question [as far as possible] within ninety days from the date of receipt of such application, and his decision thereon shall be final. Until the Commissioner decides that the vacancy has occurred, the Councillor shall not be disabled from continuing to be a Councillor : Provided that, no decision shall be given against any Councillor without giving him a reasonable opportunity of being 7 W.P.No.5589/11 heard]" 9. Perusal of the said provision, it is manifest that the powers that vest with the Commissioner are also suo-motu powers. When the Collector had sought opinion from the Commissioner and it was brought to the notice of the Commissioner the fact of the proceeding the Commissioner has taken cognizance of the same and has issued notices to the parties. Though the application is filed before the Collector, it can be said that the Commissioner has taken suo-motu cognizance of the same. As such the objection of the petitioner that as the application was not filed before the Commissioner, the Commissioner could not have taken cognizance can not be sustained. 10. However, when the objection was raised regarding maintainability on the ground of the jurisdiction i.e. that the said act could not have been complained before the Commissioner but has to be decided U/s 27 of the Act was required to be decided by the Commissioner. Even case 8 W.P.No.5589/11 laws were referred before him. It appears that the same has been ignored. Perusal of the order also shows that no reasons are given by the Additional Commissioner while rejecting the application. The order is bereft of any reasons. The reasons are the life-line of any quasi judicial order. They depict the application of mind on the part of the authority. As the order is sans reason, the same can not be sustained. 11. In light of the above, the impugned order is quashed and set aside. The Additional Commissioner before whom the dispute is pending shall decide the preliminary objection raised by the petitioner regarding maintainability afresh on its own merits within a period of three (3) weeks from today. 12. In case the Commissioner holds that the dispute is maintainable then he shall decide the dispute within a period of three (3) months thereafter. 13. Rule accordingly made absolute in above 9 W.P.No.5589/11 terms. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) asp/office/wp558911