1 FARAD CONSTITUTION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO. 4588/2009 (Smt. Shobha V. Bodkhe ..vs.. State of Mah. and others) WRIT PETITION NO. 4584/2009 (Babusingh H. Chavhan ..vs. State of Mah. and others.) -------------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Orders directions and Registrar's orders. -------------------------------------------------------------------------------------------------------------------------------------- CORAM:- B.P. DHARMADHIKARI, J. DATE:- NOVEMBER 12, 2009 Heard both the matters by consent of parties. Petitioner Smt. Shobha in W.P. No.4588/09 is Sarpanch, Gram Panchayat, Krishna, Tah. and Dist. Washim, while petitioner Babusingh in W.P. No. 4584/09 is Up-sarpanch of said Gram Panchayat, who were removed because of no confidence motion passed against them in the meeting of Gram Panchayat, on 04/6/2009. The meeting was held at about 2.00 in the afternoon. It is the contention of the petitioners that they could not attend the meeting because they were 2 attacked by a mob. Advocate Shri Bhuibhar for petitioners state that Sarpanch was having a serious head injury while Up-sarpanch was also having some injury. The attack took place few minutes before the scheduled time of meeting and because of obstruction of mob and attack, after taking medical treatment at her residence only, she had lodged police report at about 4.00 p.m. at police station, which is situated 10 Kms away. Upon advise, Up-sarpanch also lodged police report at about 9.40 in the night. He states that this ground was taken in appeal memo before the Additional Collector and separate application was also moved to have evidence to prove the incident. That application has not been decided and only because Presiding Officer (Tahsildar) did not report any such attack, the story of petitioner has been disbelieved. He states that apart from police report, the police have also obtained medical report about the injuries of petitioner Smt.Shobha. According to him, when petitioners were prohibited by force from participating in the meeting, the meeting cannot be presumed to be valid and legal. Advocate Shri Kadu for respondent Nos.4 to 8 & 10 and learned AGP for respondent Nos. 1 to 3 & 12, support the impugned order. Advocate Shri Kadu 3 wants to show that there is apparent inconsistency in the story of attack, as reported by Smt. Shobha and Babusingh. He further states that petitioners deliberately did not remain present in the meeting and then fabricated the story of attack. Learned AGP relies upon Judgment of this Court reported at 2000(2) All M.R. 371, in case of Dhyandev Mohiniraj Nipungane ..vs.. State of Maharashtra and others, particularly paragraph 12, to urge that merely because Sarpanch and Up-sarpanch did not participate in the meeting, it cannot be deemed to have been vitiated. The question whether there was any attack before meeting or there was no such attack and police report filed by petitioners is false or fabricated, has not been gone into by the Additional Collector or by the Additional Commissioner. The police report as lodged and the fact that police forwarded Smt. Shobha for her medical examination, show that there was some episode. The exact nature of that episode and its effect or impact on the meeting of no confidence, therefore, needed to have been looked into. Merely because Tahsildar did not mention any attack in proceeding book or did not report it to the authorities, that does not negate the story of attack. The petitioner had sought leave to lead evidence in this respect and that 4 application was not considered at all. If the petitioners were prevented by force from entering the meeting hall, the consequences in law will be entirely different. The judgment of this Court relied upon by learned AGP shows that where the Sarpanch or Up-sarpanch was prohibited on account of his illness from participating in the meeting, that non-participation is not sufficient to declare it invalid. The position here is otherwise. The law contemplates an opportunity of explaining the charges against them. The petitioners i.e. Sarpanch and Up-sarpanch, alleged that they have been deliberately and by criminal force prevented from attending the meeting. In the circumstances, I am inclined to direct the respondent No.3 – Additional Collector, Washim to hold proper enquiry into the alleged episode and thereafter to pass appropriate orders in the matter. However, it is pointed out to this court that the fresh election to fill in the vacancy of Sarpanch and Up-sarpanch are scheduled on 16/11/2009. In the circumstances, as both the petitioners are not prohibited from participating in the said election, I am not inclined to stay said process. However, result thereof shall be subject to the further orders be passed by the Additional Collector in remanded matters. 5 Hence, adverse orders passed by the Additional Commissioner on 14/10/2009 and Additional Collector on 08/7/2009 & 09/7/2009 in the matters, are quashed and set aside. The proceedings under Section 35(3)(B) of the Bombay Village Panchayat Acts Act, 1958, are restored to file of Additional Collector, Washim for taking fresh decision after giving an opportunity to the petitioners in accordance with law. As the matters are sent back, the said authority shall attempt to take fresh decision as early as possible and in any case by 15th January, 2010. JUDGE Diwale.