( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3781 OF 2010 1. Shamrao s/o Laxman Jadhav 2. Narsingh s/o Thaku Rathod 3. Tarachand s/o Bhavsingh Jadhav 4. Namdeo s/o Bala Jadhav 5. Sambhaji s/o Keruba Kale 6. Smt. Shantabai Madhavrao Suryawanshi All r/o Hiverkheda (Gautala), Tq. Kannad, Dist. Aurangabad. PETITIONERS VERSUS 1. The State of Maharashtra, through Secretary, Rural Development, Mantralaya, Mumbai. 2. The Divisional Commissioner, Aurangabad Division, Aurangabad. 3. The Collector, Aurangabad. 4. The Tahsildar, Kannad, District Aurangabad. 5. The Village Development Officer, Grampanchayat, Hiverkheda (Gautala), Tq. Kannad, Dist. Aurangabad. 6. Bharat s/o Namdeo Lavande, R/o Hiverkheda (Gautala), Tq. Kannad, Dist. Aurangabad. RESPONDENTS ..... Mr. V.P. Latange, advocate for the petitioners. Mr. N.H. Borade, A.G.P. for the respondents No. 1 to 5. Mr. N.J. Pahune Patil, advocate for the respondent No. 6. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 11th June, 2010] ( 2 ) ORAL JUDGEMENT : 1. Rule. Rule made returnable forthwith and by consent of learned counsel for the parties and learned AGP, heard finally. 2. By this petition, the petitioners challenge judgement and order rendered by learned Divisional Commissioner, Aurangabad, in appeal No. CR/126/2010 whereby and whereunder the order dated 3rd February, 2010 rendered by the Additional Collector, Aurangabad, came to be set aside. 3. Briefly stated, the controversy relates to service of notice of No Confidence Motion on the respondent No. 6 – Bharat Namdeo Lavande. He is Sarpanch of village Hivarkheda (Gautala). The petitioners are the members of Village Panchayat. A No Confidence Motion was moved against the Sarpanch. A special meeting was called on 12th January, 2010. The meeting was presided over by Tashildar. The notice of the No Confidence Motion was issued by the Tahsildar. The petitioners alleged that the notice of No Confidence Motion was duly served on the Sarpanch. The No Confidence Motion was passed by majority and the Additional Collector held that the Sarpanch i.e. the respondent No. 6 was disqualified to ( 3 ) continue on the post. The order of the Additional Collector was challenged before the learned Divisional Commissioner by way of appeal. The appeal was allowed for the reason that there was no due service of the notice of No Confidence Motion on the respondent No. 6 – Bharat Lavande (Sarpanch). Hence the petition. 4. Heard learned counsel and learned A.G.P. 5. The entire controversy relates to fact regarding due service of notice as per Rule 7 of the Bombay Village Panchayat (Meeting) Rules, 1959. There cannot be any duality of opinion that notice was required to be served on the respondent No. 6 – Bharat Lavande before commencement of the proceedings of NO Confidence Motion. It appears that one of the notice was taken to the residence of the respondent No.6. The endorsement on the notice shows that the family members of the respondent No. 6 gave his cell phone number and the Talathi contacted him on such number. The endorsement shows that under instructions of the respondent No.6, the notice was given to one Krushna Shivaji Dabhade who is neighbour of the respondent No. 6 and allegedly was working for him. The notice was not given to any of the family members of the respondent No. 6. The learned Divisional Commissioner held that such ( 4 ) service of notice is impermissible in the eye of law. It also appears from affidavit of Krushna Dabhade that he did not handover the notice to the respondent No. 6 – Bharat Lavande. The affidavit of said Krushna Dabhade, however, shows that the village Talathi gave him a copy of the notice of No Confidence Motion in order to hand it over to the respondent No.6. Thus, atleast it can be said that the village Talathi had gone to the residence of respondent No. 6 and an attempt was made to serve the notice on the respondent No.6 – Bharat Lavande. It does not stand to reason that the Talathi would give notice to Krushna Dabhade at a place of Pishore S.T. stop, which is at a distance of 4 kms. away from the village. This part of the affidavit of Krushna Dabhade is prima facie incorrect and unacceptable. It is necessary to see that the village Talathi had no business to tender the notice to Krushna Dabhade when the notice was addressed to the respondent No. 6 – Bharat Dabhade. The learned Divisional Commissioner appears to have overlooked this aspect of the matter and did not conduct any enquiry about the service of notice on Krushna Dabhade and the attending circumstances. However, it is true that such service of notice on a person who is not family member of the respondent No. 6, is not a valid service. By way of precaution, according to the petitioners, the village Talathi ( 5 ) affixed another copy of the notice on the residential house of the respondent No. 6 – Bharat Lavande. The copy of the notice, which bears such endorsement, is in the relevant record. The learned Divisional Commissioner should have verified whether the copy of notice was available for affixing the same on the house of the respondent No. 6. The learned Divisional Commissioner only observed that when there was only single office copy of the notice, how it could be affixed on the house of the respondent No. 6, is a question and moreover, there was no panchanama drawn by the village Talathi. The fact whether there were more than one copies of such notice should have been enquired into by the Divisional Commissioner. Considering the nature of controversy and the fact that the No Confidence Motion meeting was presided over by the Tahsildar, it would be proper to direct the learned Divisional Commissioner to conduct further enquiry into the matter regarding due service of notice on the respondent No. 6 – Bharat Lavande. 6. In the result, the petition is partly allowed. The impugned judgement and order is set aside. The matter is remitted to the learned Divisional Commissioner for afresh enquiry and if necessary by recording statement of the village ( 6 ) Talathi, Kotwal and the other witnesses in the context of due service of notice and fixation of copy of the notice on the house of respondent NO. 6 – Bharat Lavande. The learned Divisional Commissioner may thereafter pass appropriate order in the context of appeal preferred by the respondent No. 6 – Bharat Lavande. The de novo hearing and decision may be rendered expeditiously and as far as possible within period of three months, from the receipt of this order. Petition is disposed of accordingly. No costs. [V.R. KINGAONKAR] JUDGE NPJ/wp3781-10