*1* wp.4313.11.924.sxw kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4313 OF 2011 Suvarna Bhujgonda Patil. ..Petitioner ­Versus­ Divisional Commissioner and others. ..Respondents .......... Mr.Chetan G. Patil, for the Petitioner. Mr.S.N.Bhosale, AGP, for the Respondents Nos.1 to 3/State. .......... CORAM : S.C.DHARMADHIKARI, J. Date : 16th June, 2011. P.C.: 1 Heard. Rule. Rule made returnable forthwith. 2 The Petitioner who is lady Sarpanch has been removed by the motion of no­confidence. She raised a dispute and urged that earlier no­ confidence motion was moved against her. Pursuant to the notice for that no­confidence motion, a meeting was convened by the Tahasildar. After the procedural compliances were made, the motion was carried by majority of 3/4th. However, that no­confidence motion was subject matter of a dispute and by an order dated 31.01.2011, the said no­confidence motion was held not to have been validly passed. The specific argument of the Petitioner was that immediately within two months from the order dated 31.01.2011, another notice was given based on which the Tahasildar convened a special meeting and the resolution of no­ confidence is carried. She invited attention of both the Collector and the Commissioner to Section 35 of the Bombay Village Panchayats Act, 1958 and particularly, sub­section (3­A) thereof and submitted that earlier motion was moved and carried by majority of not less than 3/4th of total *2* wp.4313.11.924.sxw members who are time being entitled to sit and vote at the meeting of the Panchayat. Therefore, no fresh motion can be moved against her within a period of one year from the date of such special meeting. She has pointed out by raising specific grounds in that behalf. Even in the Writ Petition that grounds have been raised. She has given dates and stated that no­ confidence motion was moved against her on 29.12.2010 and the same was set aside by the final order on 17.02.2011 and therefore, no fresh no­ confidence motion can be moved against her within the limit prescribed by sub­section (3­A) of Section 35. 3 From perusal of the orders impugned in this petition, I find that both the Collector and the Commissioner have not adverted to this vital aspect. They seem to be under impression that they are under no obligation to consider the issue as to whether setting aside of the earlier motion wipes out the meeting itself. In other words, setting aside of the earlier no­confidence motion means the meeting itself is not convened and, therefore, bar under sub­section (3­A) of Section 35 would not come into play or whether, the position is otherwise. Having found that this aspect is not at all considered, I have no alternative but to set aside the impugned orders. 4 In the light of the position that legal contentions have not been adverted to at all, leave alone considering and answering them, I proceed to allow this Writ Petition. I am of the opinion that it is not necessary to hear the private Respondents. Further, the matter is essentially between the authorities and the Petitioner. From the record it is apparent that this aspect has not been considered at all. A grievance is also made by the learned counsel appearing for the Petitioner that the authorities have failed to consider as to whether, the notice contemplated by law is duly served. Needless to state that, when I set aside both orders *3* wp.4313.11.924.sxw and direct the authorities to decide the matter afresh, it would be open for the Petitioner to urge before them all pleas including those raised in the present Writ Petition. 5 The matter has been circulated today on account of urgency. After declaring that the post of Sarpanch is vacant as the Petitioner is removed by virtue of no­confidence motion, the authorities have declared election to fill in the post of Sarpanch which election is scheduled on 17th June, 2011. In such circumstances, the matter is taken up for final hearing forthwith. Bearing in mind that the authorities will hear both sides, no prejudice would be caused if the meeting scheduled on 17.06.2011 is postponed till the authorities decide the matter afresh. 6 Accordingly, Writ Petition is allowed. The impugned orders are quashed and set aside. The dispute raised by the Petitioner under Section 35(3­B) shall now be heard by the Collector, District : Kolhapur, who after giving opportunity to both sides to place such material as is permissible in law, shall render his findings and conclusions by giving reasons within a period of four weeks from today. For a period of four weeks from today, the vacancy caused by the Petitioner’s removal shall not be filled in. 7 Rule is made absolute accordingly. No costs. (S.C. Dharmadhikari, J)