1 wp6654.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION No. 6654 OF 2011 Mathurabai W/o Bandusing Chavan PETITIONER -VERSUS- The Tahsildar and others. RESPONDENTS ...... Shri S.S. Jadhavar, advocate for the petitioner. Shri. K.B. Chaudhary, Addl. G.P. for respondent nos. 1 and 2. Shri. S.S. Thombre, advocate for respondent nos. 3 to 5 and 7. ...... CORAM : S.V. GANGAPURWALA, J. DATE : 5th September, 2011. PER COURT : 1. The present petitioner was elected as Sarpanch of village Sonapur, Tq. Jintur, Dist. Parbhani. Respondent nos. 3 to 8 submitted requisition to the Tahsildar calling meeting of the Gram Panchayat for passing motion of no confidence against the petitioner. The meeting was held on 11.04.2011. The no confidence motion was passed by majority of five members out of total seven members. The petitioner challenged the resolution of no confidence motion before respondent no.2. Respondent no.2 dismissed the appeal. Aggrieved thereby, the petitioner filed 2 wp6654.11 appeal before the Commissioner, Aurangabad. The Commissioner, Aurangabad also dismissed the appeal. The petitioner assails the said judgment in the present Writ Petition. 2. Shri Jadhavar, the learned counsel for the petitioner strenuously contends that the petitioner was not served with the notice calling meeting for no confidence motion. In absence of proper service, the said meeting itself is bad in law and whole proceedings stand vitiated. The learned counsel contends that the witnesses shown in the panchanama, out of them four persons are the persons, who have moved the no confidence motion. According to the learned counsel, no steps were taken for personal service on the petitioner. The learned counsel further contends that the petitioner being the woman, the resolution of no confidence motion is required to be passed by majority of 3/4th number of members. In the present case, it is only by 2/4th majority and as such the provisions of Section 35 of the Bombay Village Panchayat Act, 1958 are not complied with. On this count also the resolution deserves to be quashed and set aside. 3. Shri Thombre, the learned counsel for the respondents supports the order and submits that both the authorities have concurrently held that the proper service of notice 3 wp6654.11 was made on the petitioner as he was not present, the same was affixed at the door of his house. The necessary panchanama was also drawn to that effect and the record was also produced before the authorities. This Court in its writ jurisdiction under Article 227 of the Constitution of India would not again entertain the said objection. The learned counsel further contends that the proviso to sub-section 3 of Section 35 of the Bombay Village Panchayat Act, 1958 would not be applicable in the present case as the seat was not reserved for woman. The seat was for open category candidate and the petitioner was elected on the said open seat. 4. With the assistance of the learned counsel, I have gone through the judgments of both the authorities. Both the authorities have discussed the objection of the petitioner regarding non-service of notice of motion of no confidence. The petitioner had come with a case that the notice was not properly served as per the Rules. The authorities below have concurrently observed that the notice was affixed at the door of the house of the petitioner as the petitioner was not available and the necessary panchanama was also made. Nine witnesses have signed the panchanama. All these facts are considered by the authorities below. This Court in its limited jurisdiction under Article 226 of the Constitution of India would not embark upon the investigation of facts in such a case. 4 wp6654.11 5. Moreover, the proviso to sub-section 3 of Section 35 of the Bombay Village Panchayat Act, 1958 would only be attracted if the post of Sarpanch is reserved for woman and is held by woman Sarpanch. The said proviso is inapplicable if the seat is for the open category and a woman is elected to the said post of Sarpanch which is for open category. 6. It is not disputed that in the present case the post of Sarpanch was not reserved for any category but was open seat and the petitioner was elected to that seat and as the seat was not reserved for woman candidate, the proviso to sub-section 3 of Section 35 of the Bombay Village Panchayat Act, 1958 would not be attracted. Inter alia, the resolution was required to be passed by 2/3rd majority only. 7. In the light of above, no error is committed by the authorities while passing the order. The Writ Petition is accordingly dismissed, however, with no order as to costs. [S.V. GANGAPURWALA] JUDGE ga s/wp 6654.11