1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION No. 408/2010. Dhyaneshwar Keshaorao Khade . -: versus :- Divisional Commissioner, Nagpur and others. Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : MARCH 03, 2010. Heard Shri S.V. Sohoni, learned counsel for petitioner, learned A.G.P. for respondent Nos. 1 and 2 and Shri C.F. Bhagwani, leaned counsel for respondent nos. 5 to 11. Order of no confidence motion passed in a meeting dated 21.07.2009 and upheld by respondent nos. 1 and 2 in subsequent appeals, is questioned on various grounds. First contention is, petitioner has been elected as Sarpanch on 30.12.2008 and hence motion could not have been brought within a period of 6 months from the said date. Second contention is, some of the respondents voted in favour of motion under pressure and later on they have given affidavits disassociating themselves with the motion. Third contention is requisition was submitted in the month of June, 2008 and notice was issued after expiry of period of 7 days and that meting as convened on the strength of such notice is 2 bad. Shri Bhagwani, learned counsel as also learned A.G.P. for respondents contend that these objections should have been raised immediately by the petitioner and the same were never raised before the motion or during the meeting. It is contended that in absence of any material on record, the contentions that requisition was submitted in the month of June, 2008 could not have been accepted and has not been rightly accepted by the Authorities. Provisions of Section 35[3] of the Bombay Village Panchayat Act, 1958 prohibit bringing of motion of no confidence within a period of 6 months from the date of election of Sarpanch. Petitioner has been elected on 30.12.2008 and motion has been brought before the house on 21.07.2009 i.e. beyond 6 months. Similarly, the subsequent affidavits of some of the respondents, that they have voted in favour of motion because of pressure, against the petitioner, cannot be accepted because their vote/opinion in the meting itself is relevant for the purpose of Section 35. Petitioner has pointed out that though some of the respondents have stated that the requisition was submitted to Tahsildar in the month of June, 2008 itself and provisions of Rule 2 of The Bombay Village Panchayats Sarpanch and Up-Sarpanch (No confidence Motion) Rules, 1975 require notice of meeting to be issued within 7 days of submission of said requisition. The affidavits filed by respondents and this case is not looked into by any of the authorities. The requisition submitted by respondents, does not carry any date and respondent are relying upon the endorsement made by the Tahsildar which shows direction to 3 convene meeting on 21.07.2009. The said direction is dated 16.07.2009. This date below direction is not sufficient to conclude that requisition was received by Tahsildar on 16.07.2009. There has to be some other record with the office of the Tahsildar to show date on which requisition was received. In any case, the contention of petitioner which is also accepted by some of the respondents, ought to have been evaluated by the authorities and then contention could have been accepted or rejected. In these circumstances, as the authorities have failed to apply their mind to this cardinal aspect of the matter, I find that their orders dated 30.11.2009 and 16.01.2010 are unsustainable. Proceedings in Appeal No. BVP-72/2008-2009 are restored back to the file of respondent no.2 Additional Collector for taking fresh decision in this respect, in accordance with the law and after giving parties necessary opportunity. Rule accordingly, with no order as to cost. JUDGE Rgd.