(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 7384 OF 2010 Sugrive s/o. Dnyanoba Kharat, Age : 30 years, Occupation : Agriculture, Sarpanch, Dudhgaon, Taluka : Sonpeth, District : Parbhani. .. Petitioner. versus 1. Divisional Commissioner, Aurangabad Division, Aurangabad. 2. Addl. Collector, Parbhani. 3. Tahsildar & Presiding Officer, Sonpeth, District : Parbhani. 4. Gram Sevak, Village Panchayat, Dudhgaon, Taluka : Sonpeth, District : Parbhani. 5. Motiram s/o. Ratanrao Kharat, Aged : Major, Occupation : Agriculture. 6. Mahadu s/o. Karbhari Kadam, Aged : Major, Occupation : Agriculture. (2) 7. Chaturabai w/o. Karbhari Kadam, Aged : Major, Occupation : Agriculture. 8. Rekha w/o. Laxman Waghmare, Aged : Major, Occupation : Agriculture. 9. Lahu s/o. Vithal Waghmare, Aged : Major, Occupation : Agriculture. All R/o. Dudhgaon, Taluka : Sonpeth, District : Parbhani. .. Respondents. ....................... Mr. S.S. Chapalgaonkar, Advocate, for the petitioner. Mr. D.R. Korde, Assistant Government Pleader, for respondent nos.1 to 3. Mrs. R.V. Ghule (Palve), Advocate, for respondent no.4. Mr. R.J. Nirmal, Advocate, for respondent nos.5 to 8. Mr. H.C. Puse, Advocate, holding for R.R. Imale, Advocate, for respondent no.9. ........................ (3) CORAM : B.P. DHARMADHIKARI, J. DATE : 8TH FEBRUARY 2011 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. Taken up for final hearing by consent of parties. 2. Mr. S.S. Chapalgaonkar, learned Counsel appearing for the petitioner, argues that the inference of service of notice for holding motion of "no confidence", as reached by both the authorities, is perverse and unwarranted. He invites attention to alleged Panchanama filed as Annexure "B" at page 15-A with Writ Petition, to urge that that the said Panchanama is a fabricated document. 3. Mr. R.J. Nirmal, learned Counsel appearing for respondent nos.5 to 8, on the other hand, relies upon a judgment of this Court reported at 2009(5) Bom.C.R. 691, in the case of Appa Munjaji Pawar Vs. Divisional Commissioner & others, to point out that when there are no allegations of mala fides, such technical defects cannot prevail and will of majority must be honoured. (4) 4. Mr. H.C. Puse, learned Counsel appearing for respondent no.9, is supporting the arguments of Mr. S.S. Chapalgaonkar, learned Counsel appearing for the petitioner. 5. Mr. D.R. Korde, learned Assistant Government Pleader appearing for respondent nos.1 to 3, is supporting the arguments of Mr. R.J. Nirmal, learned Counsel appearing for respondent nos.5 to 8. 6. Without prejudice to his contentions, Mr. R.J. Nirmal, learned Counsel for respondent nos.5 to 8, sought leave to proceed further from the stage of service of notice upon the petitioner, if this Court is inclined to allow the petition. Mr. S.S. Chapalgaonkar, learned Counsel for the petitioner, has not objection if such leave is granted. 7. Perusal of document of Panchanama shows that it is undated and at its top, five names are given as Panchas. Recitals therein show that all those Panchas were called by Talathi and hence they gathered in front of "his house". According to Adv. Nirmal, these words "his house" refer to house of petitioner Sarpanch. The Panchanama then indicates filing of motion, date and time of meeting and then reading of Panchanama to all (5) Panchas and its signing by all of them. It also states that the said Panchanama is true and correct. Then there are signatures against their names by Panchas. After the words "true and correct" and prior to signatures, in comparatively small words, a statement that "The said notice was refused to be pasted and hence it was pasted on his house and panchanama was drawn", appear. Here again, submission is, "on his house" refer to house of the petitioner. Thus reference to notice is only in this last part and details of notice, its date, etc. or its tender to petitioner and refusal by him do not appear in it. These words are adjusted in small font due to space constraint. 8. In the entire Panchanama, there is no name of petitioner, Sugrive, and the address of his house or its location is also not mentioned. Upon perusal of the said Panchanama, it appears that everybody gathered in front of house of Talathi and notice was pasted on the house of Talathi. In fact, Panchanama is not a notice of meeting and, therefore, a notice if pasted is not mentioned anywhere in Panchanama. The mention of refusal by the petitioner, Sugrive, and house on which it was pasted ought to have appeared in the Panchanama. Said Panchanama by itself cannot be a substitute for notice which is required to be issued by Tahsildar and served upon petitioner. I, therefore, find that the contention of the petitioner about absence of notice was (6) substantiated by him. 9. The judgment of learned Single Judge of this Court, in the case of Appa Munjaji Pawar Vs. Divisional Commissioner & others (supra), does not consider the controversy of this nature. There, it is not very clear as to how notice was served upon Sarpanch. But then, it appears that it was served by pasting. Here, the facts clearly show that respondents are substantiating service by pointing out that a Panchanama was pasted at the residence of the petitioner, Sugrive. The document on which reliance is being placed falls short to meet that requirement and does not qualify as notice. In the circumstances, the meeting for "no confidence" conducted against the petitioner cannot be said to be legal and valid. 10. In the result, the petition is allowed. (i) The order dated 6-8-2010 passed by the Divisional Commissioner, Aurangabad Division, Aurangabad, in Appeal/CR/25/2010, and the order dated 12-7-2010 passed by the Additional Collector, Parbhani, in proceedings No. 2010/A-2/VP/CR/19, are quashed and set aside. (ii) In view of the consent noted above, the respondent nos.5 to (7) 8 are permitted to take further steps from the stage of issuance of notice of "no confidence" meeting to the the petitioner, in accordance with law. The respondent no.3 / Tahsildar to take necessary steps in this respect. 11. Rule is made absolute accordingly. In the circumstances of the case, there shall be no order as to costs. ( B.P. DHARMADHIKARI ) JUDGE ......................... bgp/wp7384