1 WP.3794/2010 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3794 OF 2010 Shri Subhash Bandu Kagale ...Petitioner. V/s. The State of Maharashtra & Ors. ..Respondents. ­­­­­ Mr.V.P. Patil, with S.D. Paithane, for the Petitioner. Mr. R.M. Patne, AGP for Respondent No.1. Mr. T.S. Ingale, for Respondent Nos.2,3, 5 to 8, 12 to 15 and 17. ­­­­­­ CORAM : A.S. OKA, J. DATED : 6 th OCTOBER, 2010. P.C: 1] Heard the learned counsel for the petitioner,learned AGP for respondent no.1, and learned counsel for respondent nos.2,3, 5 to 8, 12 to 15 and 17. 2] Considering controversy involved in this petition, the same need not be kept pending. Therefore, it is taken up for final disposal. 3] The petitioner is a Sarpanh of Village Panchyat against whom no confidence motion was moved. It is contended that the said motion was carried. The petitioner raised dispute under section 35(3B) of the Bombay Village Panchayata Act, 1958 before the 2 WP.3794/2010 Collector. The Collector dismissed the dispute by upholding the legality of no confidence motion. An appeal was preferred by the petitioner from the order of the Collector. By the impugned judgment and order dated 16the April, 2010, the appeal was dismissed by the Divisional Commissioner. 4] The learned counsel for the petitioner pointed out that when the appeal was fixed for hearing on 12the April, 2010 before the Divisional Commissioner, an application for adjournment was made by the petitioner in writing on the ground that his Advocate was unwell and a medical certificate to that effect was also submitted along with the application. He further pointed out that though the learned Advocate for the petitioner was not present on 12th April 2010, the learned Divisional Commissioner in his impugned judgment and order has observed that the learned Advocate appearing for the petitioner made submissions. He has placed on a certified copy of the Roznama of the Appeal. The Roznama records that the petitioner was present but his Advocate was not present and the Advocate for the respondent was heard. The learned counsel further pointed that though the Roznama dated 12th April, 2010 shows that the appeal was dismissed on the same day, the date of the impugned judgment is 16th April, 2010. 3 WP.3794/2010 5] The learned AGP for respondent no.1 has placed before the Court a letter dated 12th July, 2010 addressed to him by the learned Divisional Commissioner, Pune Division. In the said letter, it is stated that the Advocate for the petitioner was absent on 12the April, 2010 when appeal was fixed for hearing. He has further stated in the said letter that the request made on behalf of the petitioner for adjournment was declined and the case was closed for orders. The said letter further records that due to oversight, it is mentioned in the judgment that both Advocates have argued the appeal at length. The learned counsel appearing for the Respondents supported the impugned orders and submitted that no confidence motion is rightly found to be valid. 6] I have given careful consideration to the submissions. The impugned judgment and in particular paragraph 3 thereof proceeds on the footing that even Advocate for the petitioner was heard at length. 7] However, an application for adjournment was made by the petitioner on the 12th April, 2010 on the ground of sickness of his Advocate. The prayer was not granted. In fact, adjournment sought on the ground sickness of Advocate by producing a medical certificate 4 WP.3794/2010 ought to have been granted. In any case, the factual position as reflected in the said letter dated 12th July 2010 addressed by the Divisional Commissioner to the learned AGP is that the petitioner was not heard. In fact the impugned judgment shows non application of mind by the Appellate Authority as same records that the Advocate for the petitioner was heard. The Appeal has been decided without hearing the petitioner. 9] In view of the factual position, the only order which can be passed is of remand. The contesting respondents stated that now the election of Sarpanch has already been held and therefore, there cannot be any interim relief. It is true that now interim relief cannot be granted during the pendency of the appeal. But it is obvious that the election of a new Sarpanch is subject to the final outcome of the appeal. 10] Hence the writ petition is disposed of by following order:­ i) The impugned order dated 16th April, 2010 is quashed and set aside, and Appeal No.19 of 2010 is restored to the file of the Divisional Commissioner, Pune; 5 WP.3794/2010 ii) The Parties are directed to appear before the Divisional Commissioner on 27th October, 2010 at 11.00 a.m. for the purposes of fixing the date of final hearing of the appeal; iii)It is made clear that no interim relief can be granted during the pendency of the appeal; iv) Hearing of the appeal is expedited, and the Appellate Authority shall endevour to conclude the hearing on or before 30th November, 2010; v) All contentions of the parties on merits are kept open. vi) The petition is partly allowed on above terms with no order as to costs. vii)The Appellate Authority to act on an authenticated copy of this Order. JUDGE