1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 546 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. WRIT PETITION NO.: 546 OF 2011 *** 1. Heard Advocate Shri Patil for Petitioner, Advocate Shri Gaikwad for Respondent No.1 and learned A.G.P. for Respondent No.2. 2. Advocate Shri Patil seeks leave to delete Respondent No.4. Leave granted, at the risk of petitioner. Necessary amendment to be carried out forthwith. 3. Short contention of Advocate Shri Patil is, the Commissioner in Appeal under section 35 (3) of Bombay Village Panchayat Act, had erred in treating total number of members as 8. According to him, it has to be 7 and when 5 members have voted in favour of no confidence motion, the motion is required to be declared as carried out. He has invited attention to relevant dates in this respect. 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 546 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. Shri Gaikwad for Respondent No.1 has supported the impugned order. He states that concerned member Smt. Agnela Vijay Patil was elected from two wards and she resigned from one ward. Total number of ward members is 9 and because of resignation it was reduced to 8. 2/3rd of 8 works out to 6 and hence Commissioner has rightly found that voting by five persons in favour of no confidence motion was not sufficient to declare the motion as passed. 4. Learned A.G.P. has requested the Court to pass appropriate order. 5. As pointed out by Shri Patil, Smt. Agnela was disqualified under section 13-A of Bombay Village Panchayat Act and learned Single Judge of this Court granted exparte stay to that disqualification on 25th September, 2009, that stay was vacated on 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 546 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. 13th July, 2010. Hence, thereafter, Smt. Agnela again became subject to disqualification. No confidence Motion meeting in this matter has been held on 25th August, 2010 and at that time there was no interim order protecting her. In L.P.A. that interim order had been granted on 9th September, 2010. Ultimately, L. P. A. was also dismissed on 2nd December, 2010. It is thus clear that on the date of holding of no confidence meeting i.e. 25th August, 2010 Smt. Agnela was not enjoying interim protection. Therefore, the total member of the Gram Panchayat cannot be treated as 8 and it is to be treated as 7 only. When out of total 7 member, 5 members have voted in favour of no confidence motion, it is apparent that the motion is carried out by requisite 2/3rd majority and impugned order passed by Appellate Authority i.e. Divisional Commissioner, Aurangabad, therefore, is 4 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 546 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. quashed and set aside. The order passed by Additional District Collector, Latur on 8th October, 2010 is hereby restored. Petition is allowed accordingly. No costs. [B.P.DHARMADHIKARI, J.] Dated:31/01/2011. ans/546