1 WP528/2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 528 OF 2011 1 Rangnath s/o Laxman Chintamani, Age 58 years, Occupation Agriculture, Resident of Agarkanadgaon, Taluka Gangapur, District Aurangabad Petitioners 2 Vilas s/o Vitthal Dande, Age 32 years, Occupation Agriculture, Resident of as above V E R S U S 1 The State of Maharashtra Respondents 2 The President, Zilla Parishad, Aurangabad 3 Additional Divisional Commissioner, Aurangabad Mr. M.A. Kulkarni, Advocate for the petitioners Mr. V.G. Shelke, AGP for respondent Nos. 1 and 3 Mr. Dilip Bankar Patil, Advocate for respondent No.2 CORAM : A.V. NIRGUDE, J. DATED : 15th July, 2011 ORAL JUDGMENT 1. Heard. 2. Rule. Rule made returnable forthwith. By consent of parties, the petition is taken up for final hearing. 3. At the outset, Smt. M.A. Kulkarni, learned Advocate appearing for the petitioners conceded that she does not have good case in respect of petitioner No. 2 and the petition is not pressed for him. The petition is pressed only for petitioner No. 1. 4. The petitioner No.1 was served with a notice under Section 40 of the Bombay Village Panchayats Act, 1958, in June, 2010, that he remained absent for Gram Panchayat meetings between September, 2009 till February, 2010, and asked to explain as to why he should be declared to 2 WP528/2011 have ceased to be a member of Gram Panchayat. Section 40 of the Act is the relevant provision in this regard and it reads as under : 40. (1) Any member of a panchayat who, during his term of office, - (a) is absent for more than four consecutive months from the village, [(such absence not being on account of his being a Chairman or Deputy Chairman of a Panchayat Samiti)], unless leave not exceeding six months so to absent himself has been granted by the panchayat, or (c) absent himself for six consecutive months from the meetings of the panchayat, without the leave of the said panchayat, shall cease to be a member and his office shall be vacant. The President of the Zilla Parishad sent him notice and sought his explanation, and ultimately found that petitioner No.1 remained absent continuously for the meetings of Gram Panchayat from April, 2009 to March, 2010. This finding is not in consonance with the notice which was served on the petitioner, and therefore, the parties could not have examined the case for the period beyond the notice period. 5. As said above, the notice alleges that petitioner No. 1 remained absent in the meetings of the Gram Panchayat for six months period between September, 2009 till February, 2010. In order to prove this, an attendance-sheet of the Gram Panchayat is produced on record and it is seen that on 29th September, 2009, a meeting was held and petitioner No. 1 remained absent. Since the notice mentions month September, 2009 as the starting point for counting the period of absence, the date of this meeting is relevant for counting the period of absence. The petitioner attended Gram Panchayat meeting on 27th March, 2010. The question is, whether between 29th September, 2009 till 27th March, 2010, he remained absent for six 3 WP528/2011 months period. The period between these two dates is not of six months. The Division Bench of this Court in the case of Chirak Chandu Khatik v. G.V. Kshirsagar and others (1965 Mh.L.J. 805) held that in order to calculate the period of absence, the date of meeting on which the delinquent remained absent should be the starting point. In view of this and in view of the discussion above, it is clear that at the most it can be said that petitioner No. 1 remained absent for 5 months and 28 days without leave of the Panchayat. So, he cannot be penalized for such absence. The petition should succeed only to the extent of petitioner No.1. The impugned order passed against him stands set aside. The petition of petitioner No. 2 stands dismissed. Rule is made absolute. In view of disposal of writ petition, civil application No. 897 of 2011 stands disposed of. ( A.V. NIRGUDE, J. ) SRM/wp/528/11/15/7/11