1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4311 OF 2008 Bhagwat Atmaram Pupalwad R/o Patoda (TB), Tq-Naigaon (Khai) Dist-Nanded PETITIONER VERSUS 01. The State of Maharashtra Through Secretary, Rural Development Department, Mantralaya, Mumbai-32 02. The Additional Collector, Nanded 03. The Chief Executive Officer Zilla Parishad, Nanded 04. The Education Officer (Primary) Zilla Parishad, Nanded 05. The Block Development Officer, Naigaon (Khai) Panchayat Samiti Naigaon (Khai), Dist-Nanded 06. The Grampanchayat Patoda (T.B.) Tq-Naigaon (Khai), Dist-Nanded Through Gramsevak Shri.S.K.Kolte 07. Kalawatibai Shriram Pupalwad R/o Patoda (T.B.), Tq-Naigaon (khai) Dist-Nanded 2 08. Babarao Venkatrao Hambarde R/o Patoda T.B.), Tq-Naigaon (khai) Dist-Nanded 09. Shakuntalabai Sheshrao Kandalwad R/o Patoda T.B.), Tq-Naigaon (khai) Dist-Nanded 10. Bhagwan Datta Shinde R/o Patoda T.B.), Tq-Naigaon (khai) Dist-Nanded 11. Madhavrao Pundalik Shinde R/o Patoda T.B.), Tq-Naigaon (khai) Dist-Nanded RESPONDENTS ....... Mr.M.R.Chaudhari, Advocate for the petitioner Mr.K.B.Chaudhari, Addl.G.P. For respondents No.1 and 2 Mr.V.S.Panpatte, Advocate for respondents No.3 to 5 Mr.A.M.Gaikwad, Advoate for respondents No.7 & 8 ....... [CORAM : A.V.POTDAR, J.] DATE : 9th June 2009 PER COURT: 1. Rule. Rule made returnable forthwith. By consent of the parties heard finally at the stage of admission. 2. By the present petition, filed under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for 3 setting aside the order dated 03.07.2008 passed by respondent No. 2 thereby rejecting the complaint filed by the petitioner. The petitioner has also prayed for directions to respondents No.2 to 6 to conduct an inquiry against the respondents No.7 and 8 and to produce inquiry report. 3. Factual matrix, which gave rise to file the present writ petition, can be summarized as under- In the month of August 2005, elections of the respondent No.6 Gram Panchayat were held and on 27.10.2005 the respondents No.7 and 8 came to be elected as Sarpanch and Deputy Sarpanch respectively. As per the provisions of the Bombay Village Panchayat Act, these respondents were under obligation to conduct monthly meetings of Gramsabha, however they failed to convene the meetings of the Gramsabha, as contemplated under the Bombay Village Panchayat Act. Therefore, an application was moved by the petitioner and respondents No. 9 to 11 before the Collector and sought for an inquiry and disqualification of respondents No.7 and 8 by virtue of provisions of sections 7 and 36 of the Bombay Village Panchayat Act and Rules made thereunder. It appears that an Officer of Education Department, Zilla Parishad conducted an inquiry wherein it transpired that the meetings of Gramsabha were not convened as per the provisions of law. The facts, about not convening of the meetings of Gramsabha 4 by the respondents No.7 and 8, were brought to the notice of the officers of Zilla Parishad. It is also contended that during the inquiry conducted by the Zilla Parishad it transpired that the meetings of Gramsabha were not convened as required under the relevant provisions of Bombay Village Panchayat Act. In spite of this inquiry, as no action was taken against the respondents No.7 and 8, appeal / revision cum complaint was lodged before the Additional Collector and by his order dated 03.07.2008, the Additional Collector passed the order that there is no substance in the complaint filed against the respondents No.7 and 8 and the meetings of Gramsabha were convened of which details are given in the said order (This order is at page No.55 of the compilation). The said order is under challenge in the present petition. 4. The respondents No.7 and 8 have not filed any affidavit in reply. Respondents No.3 to 5 filed their affidavit in reply on record. It is contended by respondents No.3 to 5 that respondent No.5 has conducted special inspection and inquiry in respect of the monthly meetings of Gramsabha of respondent No.6 Gram Panchayat, which shows that there are several irregularities and illegalities committed in holding monthly meetings and as per the report submitted by respondent No.3, the so called monthly meetings of Gram Sabhas shown to be held were not actually held, as per the Act, Rules and Government Guidelines. It is contended that since the monthly meetings of Gram Sabhas are never held 5 and resultantly, the respondents No.7 and 8 have incurred disqualification u/s 7 of the Bombay Village Panchayat Act. In the concluding para of the affidavit this deponent has stated that “Thus, it is crystal clear that the respondent No.2 Additional Collector without considering the written arguments filed by the petitioner and others and even without taking into consideration of the above said inquiry reports, blindly given the said decision. I, therefore, respectfully say that there is substance in this writ petition and therefore, the writ petition deserves to be disposed of accordingly.” This affidavit is affirmed on 13th October 2008. Even after gap of more than 6 months before vacations, the contentions against the Additional Collector, are not controverted by filing affidavit in reply denying these allegations. In other words, the contentions raised in the affidavit of the respondent No.5 are not controverted by filing counter affidavit to that effect and the same remained unchallenged. During the course of arguments, it is urged on behalf of the respondents No.7 and 8 that they have no access to the report submitted by the 5th respondent in the affidavit in reply. I am afraid, the contention of the respondents cannot be accepted as these respondents are parties to the petition and after they appeared in the proceedings, it is duty casted on them to pursue the proceedings and to see the progress of the proceedings and if they are not diligent in pursuing the proceedings, they have to blame themselves. 6 6. Thus, from the affidavit in reply of respondents No.3 to 5 it is clear that the inquiry conducted by them indicates that the the second respondent has not perused and examined the record properly and without examining the said record submitted report cum order which is under challenge. Thus, it is clear that the order impugned in this petition dated 03.07.2008, is passed without application and mind and without perusal of the actual record of the respondent No.6 Gram Panchayat. Therefore, it can be inferred that the order under challenge is perverse and passed malafidely and hence requires to be quashed and set aside. 7. In the result, the order dated 03.07.2008 passed by the Additional Collector, Nanded in Case No.2008/GB/Desk-1/ Grampanchayat/Appeal-19 is hereby quashed and set aside. Rule is thus made absolute in the terms indicated above. The writ petition stands disposed of accordingly with no order as to costs. [A.V.POTDAR, J.] drp/wp4311-08