wp6879-10.doc 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6879 OF 2010 Suresh Shankar Tembe ..Petitioner versus State of Maharashtra & Ors ..Respondents Mr.N.V.Gangal for the petitioner. Mr.S.N.Bhosle, A.G.P for respondent Nos.1 to 4. CORAM : S.C.DHARMADHIKARI, J. 12th July 2011. P.C.: . The petitioner has approached this Court under Article 227 of the Constitution of India, challenging the order passed by the Commissioner dated 9th August 2010. The Commissioner confirmed the order of the Collector dated 23rd June 2010. 2 The proceedings pertain to a no confidence motion, which was moved and carried against the petitioner. It is stated that the petitioner was elected as a member of the said Gram wp6879-10.doc 2 Panchayat in the year 2007. The said Panchayat has nine elected members. The petitioner was elected as Sarpanch and while working as such, the notice of no confidence was given and the signatories to the said notice desired that the Tahsildar should convene a meeting of the Panchayat to consider the no confidence motion. Accordingly, a meeting was convened and the no confidence motion was moved and carried with the requisite majority. 3 The petitioner filed a dispute before the Collector and alleged that the no confidence motion was signed by respondent No.6. She also attended the meeting and participated in the discussions on the motion and voted in support thereof. However, she stands disqualified as she has more than two children. Giving details of the children of the said respondent No.6, it was alleged that the Collector, Raigad, has passed an order on 22nd October 2010 holding that the respondent No.6 stands disqualified by virtue of the provisions and particularly under section 14(1)(j-1) of the Bombay Village wp6879-10.doc 3 Panchayat Act, 1958. 4 Mr.Gangal, appearing on behalf of the petitioner, therefore, submitted that the disqualification of the respondent No.6 relates back to the date of birth of the third child. In such circumstances and no adjudication being necessary of these admitted facts, her vote could not have been counted and if it was excluded from the consideration, the motion was not carried by the requisite majority. The second contention is that the no confidence motion was not carried in accordance with the provisions of the Act. The petitioner had specifically raised a contention that the notice as contemplated under the Rules was not given and, therefore, the non compliance with the rule requiring notice to be issued to Zilla Parishad and Panchayat Samiti vitiates the entire process. For both reasons, it is submitted that the impugned orders be quashed and set aside. 5 It is not possible to accept both contentions of Mr.Gangal. Firstly, on the date on which the notice of no wp6879-10.doc 4 confidence was given and the meeting was convened, the no confidence motion was moved and carried, respondent No.6 was not disqualified. The disqualification proceedings against her resulted in a final order being delivered on 22nd October 2010. However, in the instant case, the no confidence motion was carried much prior thereto and particularly on 19th April 2010. The Collector also rendered his order on 23rd June 2010 in the dispute filed by the petitioner and that order was confirmed by the Commissioner on 9th August 2010. All this is much prior to the disqualification of respondent No.6 by the Collector. 6 Further, the disqualification as alleged against the respondent No.6 is not automatic. Mr.Gangal would contend that there is no adjudication required by law and from the time the disqualification is incurred, the disability commences and respondent No.6 cannot continue any longer. However, Mr.Gangal’s argument overlooks section 16 of the Act which reads thus: wp6879-10.doc 5 “16 Disability from continuing as members.-(1) If any member of a panchayat,- (a) who is elected or appointed as such, was subject to any of the disqualifications mentioned in Section 14 at the time of his election or appointment, or (b) during the term for which he has been elected or appointed, incurs any of the disqualifications mentioned in Section 14, he shall be disabled from continuing to be a member, and his office shall become vacant. (2) [If any question whether a vacancy has occurred under this section is raised by the Collector suo motu or on an application made to him by any person in that behalf, the Collector shall decide the question as far as possible within sixty days from the date of receipt of such application. Until the Collector decides the question, the member shall not be disabled under sub-section (1) from continuing to be a member.] Any person aggrieved by the decision of the Collector may, within a period of fifteen days from the date of such decision, appeal to wp6879-10.doc 6 the State Government, and the orders passed by the State Government in such appeal shall be final: Provided that no order shall be passed under this sub-section by the Collector against any member without giving him a reasonable opportunity of being heard.” 7 A perusal of section 16 would indicate that merely because it is alleged that respondent No.6 has incurred a disqualification she is not disabled from continuing as a member. In fact, whether she is disabled on account of a disqualification or not, is a question which can be raised either suo motu by the Collector or an application made to him by any person. It is only when he renders a decision thereon that the question of disability would arise and even then it is doubtful because there is a remedy of appeal to the State Government which attaches finality to the decision. Therefore, what the Supreme Court lays down in the case of Mool Chand Vs. State of U.P reported in AIR 1967 S.C. 112 would apply. There also, wp6879-10.doc 7 the notice of no confidence was moved and carried and the issue was one of the member’s disability. The Supreme Court relying upon some of the identical provisions, held that suspension or cessation of duly elected member is not automatic. There has to be an adjudication in that behalf. This decision is squarely applicable, considering the wording of section 14 and 16 of the Act. The first contention of Mr.Gangal must, therefore, fail and there is no question of applicability of principle of relation back in such cases. If the question of vacancy can be decided in terms of section 16(2) of the Act, then, to contend that subsequent order of disqualification of respondent No.6 relates back to the date of the notice of No Confidence Motion, is an argument which ignores the fact that in this case such a question was squarely raised and the Collector made an order on 22nd October 2010. There is no provision which gives effect to this order from any earlier stage or date. In fact, the provision reads to the contrary. 8 Equally, his second contention is without any force. wp6879-10.doc 8 The argument is that fraud was perpetrated on the Panchayat by respondent No.6 and, therefore, she should not be permitted to continue as a member. The alleged fraud has to be investigated and there is a machinery contemplated by the Act. Here, we are talking of a elected member and his or her disqualification. There are provisions laying down the manner in which issue of disqualification of elected members should be decided. The provisions in that behalf cannot be ignored and given a go-by merely because a fraud is alleged. 9 The last contention about non compliance of the rules is also without any substance inasmuch as both the authorities, namely, the Collector and the Commissioner have found that the record indicates that the no confidence motion was moved and carried out in terms of the statutory provisions. The Commissioner has found that the objections raised by the petitioner were vague. There is no material produced, save and except, the argument that respondent No.6 to this writ petition was disqualified. In such circumstances, as and by way of wp6879-10.doc 9 afterthought, now, it is urged that there is non compliance with the rules. It is not possible to entertain this contention and that too for the first time in the writ petition. 10 As a result of the above discussion, the writ petition fails and the same is dismissed. No costs. (S.C.DHARMADHIKARI, J)