KPP -1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO. 32 OF 2010 IN WRIT PETITION NO. 515 OF 2010 1. Santosh Moreshwar Kolambe ) age 30 years, occ. Agri. r/at Chandhai, Post Nasrapur ) Tal. Karjat, Dist. Raigad ) 2. Bharat Pandurang Deshmukh, age 38 years ) Occ. Agriculture, r/at Chandhai, Post Nasrapur, ) Tal. Karjat, Dist. Raigad ) 3. Dnyaneshwar Anant Sawant, age 35 years, Occ. Agriculture) r/at Salwad, Post Nasrapur, Tal. Karjat, Dist.Raigad ) 4. Mrs. Lata Balu Ghare, age 40 years, ) Occ. Household, r/at Kalaboli, Post Nasrapur, ) Tal. Karjat, Dist. Raigad )..Appellants versus 1. Mrs. Priya Sunil Rasal, age 40 years, ) Occu. Household, r/at Chandhai, Post Nasrapur, ) Tal. Karjat, Dist. Raigad ) 2. Pravin Savlaram Patil (Jadhav), age 30 years, ) Occ. Agriculture, r/at Ganegaon, Chincholi, ) Post Nasrapur, Tal. Karjat, Dist. Raigad ) 3. Pandurang Jayram Bagde, age 25 years, Occ. Agriculture ) r/at Chandhai, Post Nasrapur, Tal. Karjat. Dist. Raigad ) 4. Bhagwan Baban Kumbhar, age 38 years, Occ. Service ) r/at Nasrapur, Tal. Karjat, Dist. Raigad ) 5. Mrs. Sushma Bharat Mohite, age 32 years, ) Occ. Household, r/at Nasrapur, Tal. Karjat, ) Dist. Raigad ) KPP -2- 6. Tahsildar, Karjat, Tahsildar office at and post ) Tal. Karjat, Dist. Raigad ) 7. State of Maharashtra ).Respondents Mr. V.S. Kapse for the appellants. Mr. R.R. Salvi for respondent No.1. Mr. S.B. Shetye for respondent No.2. Mr. S.N. Patil, AGP, for respondent Nos. 6 and 7 CORAM: P.B. MAJMUDAR & A.A. SAYED , JJ. DATE: MARCH 15, 2011. P.C. This appeal is directed against the order of the learned single judge dated 22nd January, 2010 passed in Writ Petition No. 515 of 2010 by which the learned single Judge allowed the writ petition filed by respondent No.1 by holding that no confidence motion moved against the said respondent is not maintainable. 2. The appellants are the elected representatives of Group Grampanchayat, Nasrapur. The respondent No. 1 was elected as the Sarpanch of the said Grampanchayat. A notice of no confidence motion was served upon the first respondent and the Upasarpanch on 30th January, 2009 as per the prescribed format under the provisions of the Bombay Village Panchayat Act, 1958, hereinafter referred to as “the Act”. The particulars regarding the alleged allegations against the Sarpanch were also mentioned in the said notice. No confidence motion was discussed in the meeting held on 4th February, 2009 and KPP -3- accordingly no confidence motion was passed against the Sarpanch and Upasarpanch. The first respondent preferred an application before the Collector challenging the decision of the Grampanchayat in passing the no confidence motion. On 4th November, 2009, the Collector allowed the said application on the ground that the notice issued to the Sarpanch was not legal. The appellants thereafter carried the matter further before the Additional Commissioner, Konkan Division, by way of an appeal. On 5th January, 2010, the said appeal was allowed against which the first respondent preferred the writ petition before the learned single Judge being Writ Petition No.515 of 2010. 3. The learned single Judge allowed the said writ petition by holding that when the notice was given regarding no confidence motion to both Sarpanch and Upasarpanch and since no confidence motion was passed only against the Sarpanch, the same was not maintainable and that such notice was, therefore, held to be illegal. The learned single Judge accordingly allowed the said writ petition on the aforesaid ground. The learned single Judge further held that the appeal before the Additional Commissioner, Konkan Division was barred by about four days and, therefore, the appeal was beyond the period of limitation and accordingly the order of the Additional Commissioner was set aside and writ petition filed by the first respondent was allowed on the aforesaid grounds. It is the aforesaid order of the learned single Judge which is impugned KPP -4- in this appeal at the instance of the appellants. 4. The learned counsel for the appellants submits that the order of the learned single Judge is contrary to law as it is not necessary that no confidence motion should have been pressed into service against Sarpanch and Upasarpanch especially when no confidence motion was moved against the Sarpanch only and even the allegations in the notice is also against the Sarpanch and not against Upasarpanch. It is submitted that the notice is required to be given in the prescribed format. 5. It is required to be noted that in fact Upasarpanch seconded the no confidence motion and there was no no confidence motion moved against the Upasarpanch at all. Simply because notice was issued in the prescribed format which prescribes notice to Sarpanch and Upasarpanch, it cannot be construed that no confidence motion is moved against the Sarpanch and Upasarpanch. It is only applicable to whom the allegations have been made in the show cause notice. Even in the case of no confidence motion against the Upasarpanch, same format is there. In our view, the learned single Judge has committed mistake in coming to the conclusion that no confidence motion was moved both against the Sarpanch and Upasarpanch. The format prescribed cannot be construed as if it is against the Sarpanch and Upasarpanch. Even in the English translation of the original show cause in Marathi language, there is a mistake where Sarpanch KPP -5- and Upasarpanch is mentioned instead of mentioning Sarpanch/Upasarpanch. The learned counsel for the first respondent is also not in a position to state anything further in this behalf. In view of the same, the order of the learned single Judge on the aforesaid ground is required to be set aside as it is clear that no confidence motion was moved only against the Sarpanch against whom allegations were made and she was given opportunity to have her say in the meeting. The learned single Judge, however, has made passing observations in paragraph 7 of the impugned order. 6. The learned counsel for the appellants submits that the appeal before the Additional Commissioner was preferred by four appellants and delay condonation application was given by only one of the appellants by mistake as, according to him, the appeal was within limitation. It is, however, submitted that in fact no point of limitation was raised by the other side before the Commissioner. Since no arguments were advanced on this point before the learned single Judge, in view of the submission of the learned counsel for the appellants that appeal as such was within limitation and even if by mistake delay application was given by one of the appellants, it should not mean that it was beyond limitation. So far as this aspect is concerned, in our view, it will be just and fair to remit the matter to the learned single Judge to examine as to whether in the facts and circumstances of the case actually the appeal was beyond limitation or not. Even if delay condonation application was given by KPP -6- mistake and in fact this appeal was within time, the learned single Judge may examine this aspect. Only on this limited point, the matter is remitted to the learned single Judge with a request that the learned single Judge may dispose of the petition afresh at the earliest as it is pointed out that the term of the elected members is going to expire within a short time. With a view to see that the petition may not become infructuous, we request the learned single Judge to decide the writ petition only on the aforesaid point preferably by 6th May, 2011. It is clarified that on the point of limitation, we have not expressed any opinion as it is for the learned single Judge to consider the same as per the documentary evidence on record. On the point of limitation, if either party wants to advance any further arguments, they are permitted to do so before the learned single Judge. 7. Appeal is accordingly allowed to the aforesaid extent. P. B. MAJMUDAR, J. A.A. SAYED, J.