IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE WRIT PETITION NO. 1001 OF 2009 WRIT PETITION NO. 1001 OF 2009 WRIT PETITION NO. 1001 OF 2009 Jayandrath Ramchandra Katate and others. ... Petitioners. V/s. The State of Maharashtra and others. ... Respondents. Rajiv Patil i/b. Harshad Bhadbhade for the petitioners. V.S.Masurkar, Govt.Pleader with V.A.Sonpal, AGP for respondent Nos.1, 7 and 10. A.V.Anturkar i/b. S.S.Deshmukh for respondent Nos.3 to 6. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. DATED: 20th January 2009. DATED: 20th January 2009. DATED: 20th January 2009. JUDGMENT : JUDGMENT : JUDGMENT : -------- -------- -------- . On the motion made by learned counsel for the petitioners, petitioners are allowed to delete the names of respondent Nos.2, 8 and 9 from the array of parties. Amendment to be carried out forthwith. 2. Heard learned counsel for the petitioner and learned counsel for the respondents. 3. Rule, returnable forthwith. 4. Learned A.G.P. waives service for respondent Nos.1, 7 and 10 whereas Mr.Deshmukh waives service for respondent Nos.3 to 6. 5. Petition is taken up for final hearing by consent of parties. 6. This petition is directed against the order of the State Government dated 29th December, 2008 (Exh.A) whereby the order passed by the Divisional Commissioner, Konkan Division, Konkan dated 22nd July, 2008 under section 39(1) of the Bombay Village Panchayat Act, 1958 ("Village Panchayat Act" for short) came to be set aside. 7. The factual matrix reveals that the appeal was filed before the State Government by respondent No.3 to 6, who were strangers to the order dated 22nd July, 2008. They were not parties to the proceedings which culminated in the impugned order as such maintainability of their appeal before the State Government is one of the issues raised in the petition. 8. Having heard rival contentions, this petition can be disposed of on two issues amongst others raised herein; firstly, as to whether appeal before the - 3 - State Government at the instance of respondent Nos.3 to 6 was maintainable; and secondly, whether the impugned order suffers from breach of principles of natural justice. 9. The second issue taken first, the notice of hearing dated 22nd December, 2008 fixed before the State Government, issued on 6th October, 2008, was served on the petitioners on 16th October, 2008 without there being a copy of the appeal memo annexed to it. Application was, thus, moved before the Secretary, Government of Maharashtra with a prayer to grant adjournment with a request to supply copy of the appeal memo. The said request was also pressed into service on 22nd December, 2008 during the course of hearing. The Hon’ble Minister proceeded to hear appeal without granting adjournment. 10. It is not in dispute that while serving notice on the petitioners no copy of appeal memo was served on them. They had no opportunity to know as to on whose behalf appeal was filed and the challenges set up therein. It was, therefore, reasonable for the petitioners to apply for adjournment and seek the copy of appeal memo. The said request was reasonable. It - 4 - was in consonance with the principles of natural justice. The rejection of this request has clearly violated the principles of natural justice. The impugned order, therefore, suffers from breach of the principles of natural justice, thus, ab initio void. 11. So far as first challenge is concerned, it revolves around maintainability of the appeal under section 39 of the Village Panchayat Act at the instance of strangers. Section 39 reads as under: 39. Removal from office:- 39. Removal from office:- 39. Removal from office:- (1) The Commissioner may,- (i) remove from office any member or any Sarpanch or Upa-Sarpanch who has been guilty of misconduct in the discharge of his duties, or of any disgraceful conduct, or of neglect of or incapacity to perform his duty, or is persistently remiss in the discharge thereof. A Sarpanch or Upa-Sarpanch so removed may at the discretion of the Commissioner also be removed from the panchayat; or (ii) remove from office the member, Sarpanch or as the case may be, Upa-Sarpanch if not less than twenty per cent, of the total number of voters in the village who have paid all dues of the panchayat regarding taxes on buildings and lands and water charges, make a complaint that the annual accounts and the report of the expenditure incurred by the panchayat on the development activities are not placed before the Gram Sabha; and the information thereof is not displayed on the notice board as required by sub-section (1) or (1-A) of section 8; Provided ... ... ... - 5 - Provided ... ... ... (1-A) Where a person is removed from office of the Sarpanch or Upa-Sarpanch, he shall not be eligible for re-election as Sarpanch or Upa-Sarpanch during the remainder of the term of office of members of the Panchayat. (2) The Commissioner may subject to like condition disqualify for a period of not exceeding five years, any person who has re-signed his office as a member, Sarpanch or Upa-Sarpanch and has been guilty of the acts and omission specified in sub-section (1). (3) Any person aggrieved by any order of the Commissioner under sub-section (1) or (2) may, within a period of fifteen days from the date of receipt of such order appeal to the State Government and the Government shall decide the appeal within a period of one month from the date of receipt thereof. 12. The appeal against the order of the Commissioner is provided under sub-section (3) of section 39 of the said Act at the instance of any person aggrieved by the order under sub-sections (1) and (2) thereof. The person aggrieved under sub-sections (1) and (2) of section 39 cannot be a person stranger to the proceeding under section 39. 13. Mr.Anturkar, learned counsel appearing for respondent Nos.3 to 6 fairly concedes to this interpretation. Learned Government Pleader could not find fault with the interpretation put up on - 6 - sub-section (3) of section 39 of the Villege Panchayat Act. Under these circumstances, the subject appeal was not tenable. Thus, the impugned order is also liable to be quashed and set aside as the appeal itself was not tenable. 14. Having said so, it is not necessary to delve upon other contentions raised in the petition since the impugned order is being set aside on the aforesaid two grounds. Needless to mention that respondent Nos.3 to 6 would be at liberty to find suitable and proper remedy in accordance with law, if advised. 15. In the above view of the matter, impugned order is set aside. Needless to mention that all consequential actions taken as a consequence of the impugned order would not survive. 16. In the result, petition is allowed. Rule is made absolute in terms of this order with no order as to costs. (V.C.DAGA, J.) (V.C.DAGA, J.) (V.C.DAGA, J.)