1 W.P. No. 10787.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO. 10787 OF 2010 1. Sanjay S/o Tulsiram Sonwane, Age 32 years, Occu. Agril, R/o Pimpari, Post : Talegaon, Tq. Bhokardan, Dist. Jalna. 2. Bhanudas S/o Supadaji Ambhore, Age 35 years, Occu. Agril, R/o as above. 3. Vilas S/o Manohar Harne, Age 34 years, Occu. Agril, R/o as above. 4. Kadubai W/o Gajanan Ambhore, Age 55 years, Occu. Household, R/o as above. ..PETITIONERS. VERSUS 1. The State of Maharashtra, Copy to be served on Govt. Pleader High Court of Bombay Bench at Aurangabad through Secretary, Rural Development Department, Mantralaya, Mumbai-32. 2. The Tahsildar & Presiding Officer, Tahsil Office, Bhokardan, Dist. Jalna. 2 W.P. No. 10787.10 3. Gramsevak, Grampanchayat Pimpari, Tq. Bhokardan, Dist. Jalna. 4. Additional Collector, Jalna, Dist. Jalna. 5. Divisional Commissioner, Aurangabad Division, Aurangabad. 6. Shriram S/o Kundlik Ambhore, Age 45 years, Occu. Agril, R/o Pimpari, Post : Talegaon, Tq. Bhokardan, Dist. Jalna. 7. Mandabai W/o Shriram Ambhore, Age 40 years, Occu. Household, R/o As above. ..RESPONDENTS ... Smt. M.A. Kulkarni,, Advocate for petitioners. Shri D.R. Kale, AGP for respondents /State Nos. 1,2,4 & 5 Shri G.B. Kulkarni, Advocate for respondent No. 6 CORAM :- S.S. SHINDE, J. DATE :- 29th July, 2011 PER COURT: This Writ Petition is filed challenging the order dated 15-11-2010, passed by the Divisional Commissioner, Aurangabad Division, Aurangabad, 3 W.P. No. 10787.10 thereby reversing the order dated 31-08-2010, passed by the Additional Collector, Jalna, Dist. Jalna. 2. It is the contention of the petitioners that the respondent No. 5 was working as Up-Sarpanch. The petitioners on 20-07-2010 submitted notice of no confidence, against the respondent No. 6 to the respondent No. 2. The no confidence motion was passed against the respondent No. 6, and four member voted in support of no confidence motion and one member voted against no confidence motion. Being aggrieved by the said resolution the respondent No. 6 has filed appeal which came to be dismissed. 3. The respondent No. 6 thereafter, filed second appeal before the respondent No. 5 and by order dated 15-11-2010, the Commissioner allowed the appeal, and set aside the no confidence motion. Hence this Writ Petition. 4 W.P. No. 10787.10 4. The learned counsel appearing for the petitioners submits that reasons given by the respondent No. 5 are without any basis. The respondent No. 5 failed to consider that the petitioner No. 1 was granted stay, and as such his disqualification was stayed on the date of no confidence motion, and therefore, he was rightly allowed to participate in no confidence motion, since he could have acted as panchyat member on relevant date. It is further submitted that if his seat considered as vacant, then out of five members three members have voted in support of no confidence motion, and as such it cannot be said no confidence motion is not passed, and this aspect has not been considered by the respondent No. 5. It is further submitted that the respondent No. 5 has exceeded its jurisdiction vested in him. The respondent No. 5 failed to consider that by virtue of stay order, the petitioner no. 1 was entitled to participate in the special meeting of no confidence motion moved against respondent No. 6. It is further submitted that the respondent No. 5 did not consider provisions of Section 5 W.P. No. 10787.10 44 of the Bombay Village Panchayat Act, 1958. Therefore, learned counsel for the petitioners would submit that this Writ petition may be allowed. 5. On the other hand, learned counsel appearing for respondent No. 6 submits that the Divisional Commissioner had taken into consideration the disqualification incurred by the petitioner No. 1. Though it was temporarily stayed, subsequently on 25-10-2010, the Additional Commissioner, Aurangabad has dismissed the appeal filed by the petitioner No. 1, challenging his disqualification. Therefore, the disqualification incurred by the petitioner No. 1 stands confirmed. The Divisional Commissioner has taken into consideration the decision of Additional Commissioner, Aurangabad on 25-10-2010, thereby confirming the disqualification incurred by the petitioner No. 1. On the date when no confidence motion was moved, the petitioner No. 1 was not qualified or entitled to participate and vote in special meeting conveyed to consider no confidence motion qua 6 W.P. No. 10787.10 respondent No. 6, stay to such disqualification would not make petitioner No. 1 qualified to participate in no confidence motion. Therefore, according to the learned counsel appearing for the respondent No. 6, the impugned order is just and proper. Therefore, this Court may not interfere in the Writ Jurisdiction. 6. I have heard the learned counsel appearing for the petitioners and learned counsel appearing for the respondent No. 6, and also the learned AGP appearing for respondent Nos. 1,2,4 & 5. From the perusal of the copies of the documents placed on record, it appears that the petitioner No. 1 did challenge the decision of the authority, disqualifying him as a member of the panchayat. The said order was challenged before the Additional Commissioner, Aurangabad by filing Appeal bearing No. Appeal /CR/29/2009. It is also true that initially stay was granted to the disqualification of the petitioner No. 1, when appeal was heard for admission. The petitioner was disqualified under Section 14(J-1) of 7 W.P. No. 10787.10 the Bombay Village Act, 1958, on 05-05-2009, as stated earlier that said disqualification was challenged by way of filing appeal on 05-05-2009. The petitioner also filed application for stay to the said disqualification, and accordingly, the appellate authority granted stay till 21-10-2009. However, the stay order was not continued. Therefore, the petitioner again moved the appellate authority for continuation of stay order. It is the contention of the learned counsel appearing for the petitioners that on the date when no confidence motion was scheduled against respondent No. 6, the stay of the appellate authority was operating in favour of the petitioner No. 1. The stay order was continued from 19-07-2010, and special meeting to consider no confidence motion qua respondent No.6 was scheduled on 26-07-2010. In short, the disqualification of the petitioner No. 1 was stayed on the date on which no confidence was passed against respondent No. 6. Therefore, according to the learned counsel for the 8 W.P. No. 10787.10 petitioners, on the relevant date the petitioner No. 1 did participate in the no confidence motion, and therefore, merely because his disqualification is subsequently confirmed and his appeal was dismissed on 25-10-2010 , his participation in no confidence motion as a member of panchayat cannot be construed as illegal or invalid, and therefore, the Divisional Commissioner was not right in holding that the no confidence motion moved against respondent No. 6, by special meeting dated 26-07-2010 was not valid. The reliance is placed by the learned counsel appearing for the petitioners on provisions of Section 44 of the Bombay Village Act, 1958. However, in my opinion, the provisions of Section 44 of the Bombay Village Act, 1958 has no relevance n the facts of this case. Section 44 will come into picture only when there is a vacancy. Therefore, argument for the learned counsel appearing for the petitioners that provisions of Section 44 of the Bombay Village Act, 1958 are not considered by the Additional Commissioner has no force. Admittedly, case in hand is not the case where the 9 W.P. No. 10787.10 authorities have considered post vacancy scenario. It is true that on the date on which i.e. 26-07-2010, the special meeting to consider the no confidence motion against respondent No. 6 was scheduled, the petitioner No. 1 did participate in the said meeting, and his vote was counted and no confidence motion came to be passed. However, by order dated 25-10-2010, the disqualification of the petitioner No. 1 came to be confirmed. In short, the initial decision of the authority disqualifying the petitioner No. 1 came to be confirmed by the Additional Commissioner, Aurangabad on 25-10-2010, thereby dismissing the appeal filed by the petitioner No. 1, challenging his disqualification. Therefore, the person who was disqualified and subsequently his disqualification is confirmed, cannot assert his right to contend that he was entitled to participate and vote in a special meeting which was scheduled for considering the no confidence motion against respondent No. 6 on 26-07-2010. The appeal 10 W.P. No. 10787.10 which was filed before the Divisional Commissioner, challenging the meeting dated 26-07-2010 and no confidence motion passed in said meeting, came to be disposed of by the Divisional Commissioner on 15-11-2010. The Divisional Commissioner had occasion to consider the submission of the appellant therein i.e. respondent No. 6 herein, that the decision to disqualify the petitioner No. 1 is confirmed by the Additional Commissioner, Aurangabad on 25-10-2010. The Divisional Commissioner, Aurangabad has considered the fact that, the petitioner No. 1 has already incurred disqualification and decision to declare him disqualified was assailed before the Additional Commissioner, Aurangabad, by way of filing appeal by the petitioner No. 1 and said appeal was dismissed on 25-10-2010. Therefore, in my view, the Divisional Commissioner, Aurangabad has rightly held that, the petitioner No. 1 has incurred disqualification prior to the date on which special meeting was scheduled for considering no confidence motion against respondent No. 6, and said 11 W.P. No. 10787.10 disqualification has been confirmed by Additional Commissioner, Aurangabad by dismissing the appeal filed by the petitioner No. 1, challenging his disqualification, and therefore, his participation in meeting and counting his vote in support of no confidence motion qua respondent No. 6, was improper and therefore, proceeding of no confidence motion on said date are vitiated. Therefore, in my opinion in the facts and circumstances of this case, no case is made out to invoke the extra ordinary writ jurisdiction of this Court, and therefore, the Writ Petition stands dismissed. [ S.S. SHINDE, J. ] SDM* July-11