1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD LETTERS PATENT APPEAL NO.22/2010 Ashok S/o Sitaram Misal age-46 years, Occ-Agril R/o Kundrdas Tq. & Dist.Beed. .. APPELLANT VERSUS 1] The Returning Officer Shri Abay Mhaske, Naib Tahsildar Tahsil Office, Beed Tq. & Dist.Beed. 2] The Gramsevak Grampanchayat Office, Kukkadgaon Tq. & Dist.Beed 3] Mahadeo S/o Rambhau Athawale Age – 50 years Occ-Agrilculture r/o Kukkadgaon Tq. & Dist.Beed 4] Babasaheb s/o Limba Chavan age-36 years, occ-Agrilculture r/o Chavanwadi Tq. & Dist.Beed 5] Bhagwat s/o Rambhau Nawale age 40 years, 0cc-Agriculture 2 r/o Kukkadgaon,Tq. & Dist.Beed 6] Parmeshwar s/o Bhagwan Nawale age 25 years, Occ-Agriculture r/o Kukkadgaon, tq. & Dist.Beed 7] Smt.Shobabai w/o Nana Khandagale age 35 years, occ-Household r/o Kukkadgaon, Tq. & Dist.Beed 8] Smt. Meera w/o Babasaheb Kute age 25 years, Occ-Household r/o Kukkadgaon, Tq. & Dist.Beed 9] Raosaheb s/o Dadarao Nirmal age 60 years, Occ-Agriculture r/o Khundras, Tq. & Dist.Beed. 10] Ashabai w/o Sopan Bhate age 25 years, Occ-Agriculture r/o Chavanwadi, Tq. & Dist.Beed 11] The Additional Collector, Beed, Tq. & Dist.Beed 12] The Additional Divisional Commissioner, Aurangabad Division Aurangabad. RESPONDENTS ...... 3 .... Shri V.D.Salunke,Adv.for appellant. Shri S.S.Thombre,Adv.for Respondents 2 to 7 & 10. Smt.V.A.Shinde,AGP for Respondents-State. ... CORAM : A.P.DESHPANDE & N.D.DESHPANDE,JJ. DATE :19/01/2010 ORAL JUDGMENT : [PER A.P.DESHPANDE,J.] : 1] Admit. By consent of the learned counsel for the respective parties, Letters Patent Appeal is taken up for final hearing. 2] A short question that arises for consideration in the Appeal is as to whether Appeal lies to the Commissioner against an order passed by the Collector adjudicating the dispute under Section 33(5) of Bombay Village Panchayats Act, 1958 or otherwise. The present appellant had contested the election to the post of Sarpanch held in a meeting dated 11/10/2008. The respondent no.3 as well had contested the election for the post of Sarpanch. Respondent no.3 was declared elected. Aggrieved by the said declaration, the appellant filed the dispute under Section 33 (5) of the Bombay Village Panchayats Act, 4 1958 (hereinafter referred to as the Act for brevity) before the Collector. The Collector decided the dispute by partly allowing the Appeal in favour of the present appellant. The Collector set aside the declaration in favour of the respondent no.3 as Sarpanch. The appellant’s prayer for declaring him as elected candidate, came to be rejected by the Collector and hence aggrieved thereby, the appellant filed Appeal before the Commissioner. The Commissioner has dismissed the Appeal by holding that an Appeal against an order of Collector before Commissioner under Section 33(5) of the Act is not maintainable. It is this order passed by the Commissioner that was challenged before the learned Single Judge and as the learned Single Judge has rejected the petition at the admission stage, the present Appeal has been filed. Thus as stated above, the limited question that arises for consideration is as to whether an Appeal lies against an order passed by the Collector, partly allowing the dispute and partly rejecting it under Section 33(5) of the Act. Section 33(5) of the Act reads thus : “33 (5) In the event of a dispute arising as to the validity of the election of a Sarpanch or Upa-Sarpanch under sub-section (1) (the Officer 5 presiding over such meeting or any member, may, within fifteen days from the date of the election, refer the dispute to the Collector for decision. An appeal against the decision of the Collector may, within fifteen days from the date of such decision, be filed before the Commissioner, whose decision shall be final. The Collector or Commissioner shall give his decision as far as possible within sixty days of the receipt of the reference, or as the case may be, appeal.” 3] Perusal of the said Section leaves no room of doubt that the decision of the Collector is appellable before the Commissioner, provided the Appeal is filed within a period of 15 days from the date of the decision of the Collector. Bare perusal of Section 33(5) of the Act would reveal that the decision of the Commissioner in Appeal attains finality. Perusal of the order passed by the learned Single Judge also reveals that on reading of the Section, the learned Single Judge was also of the view that an Appeal was maintainable before the Commissioner. 6 4] If an Appeal was maintainable before the Commissioner and right of Appeal being a statutory right, the present appellant could not have been non-suited by dismissal of the Writ Petition summarily. The learned counsel for the respondent also in all fairness admits that an Appeal lies before the Commissioner against decision of the Collector. In that view of the matter and on plain reading of Section 33(5) of the Act, we are of the clear view that an Appeal against decision of the Collector being very much maintainable before the Commissioner, the Commissioner has erred in law in holding otherwise and failed to exercise jurisdiction vested in him by law, by dismissing the Appeal. 5] In the result, Letters Patent Appeal is allowed. The impugned order passed by the Commissioner dated 8/4/2009 and the order passed by the learned Single Judge dated 22/6/2009 are quashed and set aside. The Appeal preferred by the appellant shall stand revived and the Commissioner shall proceed to decide the said Appeal in accordance with law. The parties undertake to remain present before the Commissioner on 27 th January 2010 and hence no notices be issued to 7 the parties in the Appeal by the Commissioner. The Commissioner shall proceed to decide the Appeal on 27 th January 2010 or as soon thereafter as possible, in accordance with law. Letters Patent Appeal is allowed and disposed of. 6] In view of the disposal of the Letters Patent Appeal, Civil Application No.8658/2009 does not survive and the same is disposed of. Authenticated copy is allowed for the use of the parties. [N.D.DESHPANDE] [A.P.DESHPANDE] JUDGE JUDGE umg/lpa22-10