1 W.P.1514/2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 1514/2011 WITH CIVIL APPLICATION NO. 4402/2011 Shivkant s/o Haribhau Bangar, Age : 41 years, Occu. Agri., R/o Ratanpur, Tq. Kallamb, Dist. Osmanabad. ....Petitioner. Vurses 1 The Divisional Commissioner, Aurangabad Division, Aurangabad 2 The Additional Collector, Osmanabad, Dist. Osmanabad. 3 The Presiding Officer or the Tahsildar, Kallamb, Tq. Kallamb, Dist. Osmanabad. 4 The Gramsevak, Grampanchayat Office, Ratanpur, Tq. Kallamb, Dist. Osmanabad. 5 Shashikant Shrirang Jadhavar, Age : 35 years, Occu. Service. 6 Ramesh Vitthal Jadhavar, Age : 39 years, Occu. Agril. 7 Smt. Gavlan w/o Tanaji Tekalr, Age : 27 years, Occu. Household, 8 Jaidrath Dashrath Waghmare, Age : 45 years, Occu. Agril. 9 Avinash Anantrao Jadhavar, Age : 34 years, Occu. Agril. 10 Sow. Mangal Anantrao Waghmare, Age : 33 years, Occu. Household, 11 Sudhir Vishwanath Waghmare, Age : 35 years, Occu. Service. 12 Sow. Keshar s/o Achut Jadhavar, Age : 50 years, Occu. Household, All R/o Ratanpur, Tq. Kallamb Dist. Osmanabad ...Respondents. 2 W.P.1514/2011 Mr. S.J. Salunke, Advocate for the petitioner. Smt. S.D. Shelke, A.G.P. for respondent Nos. 1 to 3. Mr. K.J. Ghute Patil, Advocate for respondent No.4. CORAM : A.V. NIRGUDE, J. DATED : 5th May, 2011. ORAL JUDGMENT: 1. This writ petition is filed under articles 226 and 227 of the Constitution of India, challenging concurrent judgments and orders passed by the Additional Commissioner and Divisional Commissioner in the matter of petitioner's removal as Sarpanch on the basis of no confidence motion. 2 It is common ground that the respondents No.5 to 8 and the petitioner are elected members of the village panchayat of village Ratanpur Tq. Kallam District Osmanabad. It is common ground that the petitioner was elected as Sarpanch. It is also common ground that the respondents Nos.5, 6, 8, 9, 11 and 12 moved requisition for calling special meeting for passing no confidence motion against the petitioner. The Tahsildar as per rules, issued notice of the special meeting which was fixed on 08/10/2010. 3 It is the case of the respondents that the notice was properly served on the petitioner and other members of the panchayat. They say that on 08/10/2010, the special meeting was held. They say that the petitioner and two other members of the village panchayat did not attend the meeting and the present members who had moved requisition for the meeting, passed the required resolution. 4 The petitioner lodged a dispute against this resolution, before the Additional Collector but failed. He then moved an appeal 3 W.P.1514/2011 before the Divisional Commissioner but he failed again. So, he is before this Court. 5 The learned counsel appearing for the petitioner contended that the notice of the special meeting was not served on the petitioner and therefore, the resolution is illegal. The question therefore, is whether the notice was properly served. The relevant rule in this regard is Rule No. 7 of the Bombay Village Panchayats (Meetings) Rules, 1959. The rule reads as under. 7. Every notice under these rules shall, if practicable, be served personally by delivering or tendering it to the member to whom it is addressed or such person is not found, by giving or tendering it to an adult male member of his family who is residing with him. If there is no such person to whom notice can be given or tendered or where the member, or as the case may be, in his absence such adult male member, is present but refuses to accept the notice, it shall be served by affixing it, in the presence of two witnesses, on the outer door or some other conspicuous part of the house in which the member ordinarily resides. If none of the aforesaid modes of serving notice is feasible, the notice shall be affixed, in the presence of two witnesses, on some conspicuous part of the house in which the member is known to have last resided or carried on business or personally worked for gain. 6 The Tahsildar while opposing the dispute, filed a say in which he stated that on 04/10/2010 the notice of the meeting was not served on the petitioner or his family members but he said, the notice was affixed on the door of the petitioner’s house as per the provisions of the Code of Civil Procedure. He said that this was done by the concerned Talathi and he placed reliance on the report of the Talathi regarding the same. 7 The evidence in respect of service of notice is coming on record through two documents. The first is the panchanama dated 4 W.P.1514/2011 05/10/2010 signed by not only the Talathi but six neighbours of the petitioners. The panchanama states that on that day the Talathi went to serve the notice on the petitioner at his house. The petitioner refused to accept the notice and so the Talathi in presence of six witnesses affixed the notice on the front door of the house of the petitioner. 8 The second document is the office copy of the notice along with the report of Talathi. At the end of this notice, the concerned Talathi described as to how he had served the notice to all the members. As regards the petitioner, he stated that he served the notice by affixing the same on the house of the petitioner. He then stated that on 06/10/2010 he gave intimation of the notice to the petitioner personally and obtained his signature. 9 What is stated in the say of the Tahsildar is equated to pleading. But the factum of service of notice could be only through evidence. The evidence of service of notice comes on record through the above mentioned two documents. I think, the first document -the panchanama of service- is trustworthy and sufficient compliance to the rule mentioned above. The Talathi has specifically mentioned that he went to serve the notice to the petitioner at his house. The petitioner refused to accept the service and then in presence of more than two persons, he affixed the same on the petitioner’s house. No doubt, the fact that the petitioner had refused to accept the notice on 06/10/2010 has not been stated in the pleadings as well as in the second document. None the less, the panchanama appears to be unassailable document. There is nothing on record to show that this document is untrustworthy. All that is argued before me is that since there is variance between the pleadings and the evidence and variance in between two documents referred to above, the entire 5 W.P.1514/2011 episode of service is untrustworthy and should be discarded. I am not inclined to accept this argument. Because as said above, the panchanama is unassailable and cannot be ignored at all. There is sufficient evidence to prove that the notice is properly served on the petitioner. The petition should fail. ORDER The petition is dismissed. Rule discharged. In view of this, civil application would not survive. Civil application stands disposed of. [A.V. NIRGUDE, J.] ts k/2011/May5/wp1514.11/ok