1 W.P.7682.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.7682 OF 2009 Kusumtai W/o Subhash Borse, Age 40 years,Occupation Agril., R/o Tongaon,Tq. Bhadgaon, District Jalgaon. ...PETITIONER. VERSUS 1. The State of Maharashtra, Through its Principal Secretary, Rural Development and Water Conservator Department, Mantralaya,Mumbai-32. 2. Principal Secretary, Urban Development Department, Mantralyala, Mumbai-32. 3. Zilla Parishad,Jalgaon District Jalgaon. Through its Chief Executive Officer. ...RESPONDENTS. ... Shri.Anand V.Patil, Advocate for Petitioner. Shri.R.P.Phatke, A.G.P. for Respondents. ... CORAM: NARESH H. PATIL AND K.K. TATED, JJ. DATE : 28TH JULY, 2010. ORAL JUDGMENT :( PER : NARESH H.PATIL, J.) 2 W.P.7682.09 1. Rule. Rule made returnable forthwith. By consent of the learned counsel for the parties, petition is taken for final hearing at the stage of admission. 2. The petitioner was elected as Councillor to represent “59-Bhadgaon-Kothali” Constituency of Zilla Parishd, in the year 2007. The said Consistency consists of eight villages, according to the petitioner. In the year of 2009, Bhadgaon Municipal Council was constituted. Four villages from “59-Bhadgaon-Kothali” Constituency of Zilla Parishd, which petitioner represents were included in the jurisdiction/area of Bhadgaon Municipal Council. The petitioner submits that the State Government, Rural Development Water Conservator Department by an order dated 31st August,2009 removed the petitioner as Councillor under section 255 (2)(II) of the Zilla Parishad and Panchayat Samitis Act,1961( Hereinafter referred to as "Z.P.Act") on the ground that part of the area of Zilla Parishad Constituency was deleted and it 3 W.P.7682.09 formed part of Bhadgaon Municipal Council. 3. The petitioner challenges the said order passed by the respondent No.1-Rural Development and Water Conservator Department, Maharashtra State, Mumbai, dated 31st August, 2009 in this petition. 4. Mr.Patil,learned counsel for the petitioner submits that the impugned order was passed without hearing the petitioner. The Authorities have not issued any show cause notice to the petitioner, before passing drastic order of this nature. The petitioner was elected representative of people who could not have been unseated without compliance of due procedure as established by law. The learned counsel submits that in the light of the provisions of Section 255(2)(II) of the Z.P. Act, the petitioner could still represent part of the area of said Zilla Parishad Constituency, which was not included in Bhadgaon Municipal Council area. 4 W.P.7682.09 . Mr.Patil, learned counsel appearing for the petitioner placed reliance in the matter of Mohinder Singh gill and another Vs. The Chief Election Commissioner, New Delhi and others, reported in AIR 1978 S. C. 851. 5. Mr. Phatke, learned A.G.P. submits that it is discretion of the State Government to decide as to “whether in the situation as emerged in this case, a member representing Zilla Parishad Constituency shall be allowed to represent or not?” In the facts of the case the State Government decided that part of the area of Zilla Parishad Constituency held by the petitioner was excluded from the said Constituency. The State Government decided to remove the petitioner as Councillor to represent for said Zilla Parishad Constituency. 6. For appreciating issue raised before us, we may refer to relevant provisions of section 255 sub-clause (2) (II) of the Z.P. Act 5 W.P.7682.09 “255 (1)... (a)... (b)... (c)... (d)... (2) Where during the term of office of the Councillors of any Zilla Parishad. (a) any local area is included within a District; (b) any local area is excluded from a District; (c)two or more Districts are amalgamated into one District;or (d)a District is split up into two or more Districts; The State Government may, notwithstanding anything contained in this Act or any other law for the time being in force, by an order published i the Official Gazette provided for all or any of the following matters- namely (i) in a case falling under clause (a), the interim increase in the number of Councillors, by appointment of additional Councillors by the State Government until the normal term of the existing councillors expires; (ii)in a case falling under clause (b0, the removal of the Councillors, who in the opinion of the State Government, represent the area excluded from the 6 W.P.7682.09 District and the continuance of the remaining Councillors until the normal term of such councillors expires; 7. The provisions of section 255 of Z.P. Act stipulate that in case local area is excluded from a District, then the Councillor can be removed in the opinion of the State Government, representing area excluded from the District and could also continue councillor who is representing the remaining area, which is not excluded from the District. This could be reasonable interpretation of the provisions of section 255(2)(II) of the Z.P. Act, in our opinion. 8. In the facts of the case part of the area represented by the petitioner was included in the Municipal Council, Bhadgaon and now the question is who would represent remaining area of “59- Bhadgaon-Kothali” Zilla Parishad Constituency. The next elections are to take place in the year 2012. The impugned order is passed on 31st August, 7 W.P.7682.09 2009. The State ought to have considered that people of remaining area from the Zilla Parishad Constituency represented by the petitioner would be left without any representation. The Zilla Parishad being effective local authority, the representative for the residence of the said area should represent the residents of the area which would be in the interest of residents of the said Constituency and public interest too. 9. Considering the issue from that angle, we find that removal of petitioner abruptly even without hearing is un-reasonable and harsh decision. The order does not serve public interest. 10. For the reasons stated above, we are inclined to allow this writ petition. 11. The impugned order passed by the respondent No.1-Rural Development and Water Conservator Department, Maharashtra State, Mumbai, dated 31st 8 W.P.7682.09 August, 2009 is quashed and set aside. The petitioner is entitled to represent remaining area of “59-Bhadgaon-Kothali” Zilla Parishad Constituency. 12. Rule is made absolute in above terms. No costs. Sd/- Sd/- [K.K. TATED, J.] [NARESH H. PATIL, J.] MTK