1 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.2993 of 2010 Anjana Gopal Andade ... Petitioner versus Vishwanath Balkrishna Humne & ors. ... Respondents ... Mr. Anilkumar K. Patil for the petitioner. Mr.R.P. Lote for respondent no.1. Mr.S.N.BHosale AGP for respondent nos.2, 3 and 5. CORAM : D.G. KARNIK, J. DATED : 09th June 2010 P.C. 1. By an order dated 12th April 2010, this Court directed issuance of a notice to the respondents with a direction that the notice shall state that the petition may be disposed of at the stage of admission itself. Accordingly, notice was issued to the respondents. Respondent nos.1, 2, 3 and 5 have appeared through their advocates. None appears for respondent no.4 Village Panchayat who appears to be a formal party. The petition is accordingly heard finally at the stage of admission itself. 2. Rule returnable forthwith. Counsel for respondent nos.1 to3 and 2 5 waives service. Service of Rule on respondent no.4 is dispensed with. 2. The petitioner is an elected member of the Village Panchayat, Satgaon. Respondent no.1 made an application to the Collector u/s.16 of the Bombay Village Panchayat Act, 1958. (for short “the Act”) for a declaration that the petitioner had incurred a disqualification u/s.14(1) (g) of the Act and therefore her seat should be declared as vacant. The allegation against the petitioner was that the petitioner through her husband had entered into several contracts with the respondent no.4 Village Panchayat for carrying out various works of construction/ repairs in the village. After notice to the petitioner, an enquiry was held by the Collector. The Collector after considering the evidence adduced by the parties, by an order dated 30th June 2009, held that the petitioner through her husband had carried out six works for the Village Panchayat and had received monetary consideration therefor amounting to a disqualification u/s.14(1)(g) of the Act. Accordingly, the Collector ordered that the petitioner had incurred a disqualification u/s.14(1)(g) of the Act. 4. Aggrieved by the decision of the Collector, petitioner filed an appeal before the Additional Commissioner, Konkan Division, Mumbai, bearing Village Panchayat Appeal No.266 of 2009. By an order dated 28th October 2009, the Additional Commissioner dismissed the appeal. That order is impugned in this petition. 5. Relying upon a decision of a learned Single Judge of this Court, sitting in Aurangabad, in Atmaram Chapa Sandanshiv & anr, Vs. Shamshadbi Bashir Shah Fakir & Ors, 2008(3) Mh.L.J 906, learned 3 counsel for the petitioner submitted that the appeal u/s.16 of the Act can only be heard by the Commissioner and not by the Additional Commissioner and consequently, the decision of the Additional Commissioner was without jurisdiction and needs to be set aside. 6. First part of sub-section(2) of section 16 provides that if any question whether a vacancy has occurred on account of the disqualification u/s.14 of the Act is raised by the Collector suo moto or 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 receipt of that application. Second part of sub-section(2) of section 16 provides for an appeal against the decision of the Collector and says: “any person aggrieved by the decision of the Collector to file an appeal to the State Government and says “any person aggrieved by the decision of the Collector may, within a period of 15 days from the date of said decision, appeal to the State Government and the order passed by State Government in such appeal shall be final.” Appeal against a decision of the Collector passed under section 16(2) thus lies at the instance of the person aggrieved to the State Government. 7. Section 182 of the Act provides that the State Government may, by notification in the official gazette authorizes the commissioner or any other officer to exercise any of the powers which may be exercised by it under the Act. It is common ground between the parties that by virtue of the powers conferred on it by section 182 of the Act, the State Government has authorized the Revenue Commissioners in various divisions to exercise its of hearing and deciding appeals against the decisions of the Collector taken under section 16 of the Act. It is also 4 common ground that no orders have been passed by the State Government authorizing any Additional Commissioner to exercise its powers u/s.16 of the Act. I accordingly proceed on the basis that the powers have been conferred only on the Commissioner to receive and hear appeal and no such powers have been conferred on the Additional Commissioner to receive and hear any appeal under section 16(2) of the Act. If so, the Additional Commissioner was clearly not competent to hear the appeal filed by the petitioner and the order passed by the Additional Commissioner is without jurisdiction. I am supported in my view by the decision of this Court in Atmaram Vs.Shamshadbi (supra) in which another Single Judge has taken a view that the Additional Commissioner had no power to hear and decide the appeals under section 16(2) of the Act. Consequently, the orders passed by Additional Commissioner needs to be set aside. 8. It may be noted that the appeal which was filed by the petitioner was not addressed to the State Government nor was it addressed to the Commissioner. Copy of the appeal memo which is at Exhibit-F to the petition shows that the appeal was addressed by the petitioner to the Additional Commissioner. She herself had approached a wrong forum. It was not the case where the appeal was properly addressed to the State Government or to the Commissioner and they had wrongly transferred the appeal to the Additional Commissioner. The appeal filed by the petitioner herself to the Additional Commissioner was incompetent and Additional Commissioner should have dismissed it not on merits but on the ground that he had no jurisdiction to entertain and decide the same. It would have to be held that the appeal filed by the petitioner was before the wrong forum. The order of the collector not 5 having been appealed against before the forum provided by law has become final. 8. Consequently, no relief can be granted to the petitioner. Ordered accordingly. (D.G. KARNIK,J.)