SAHEBRAO KHANDU PATIL Vs. JOHARABAI LATIF PATEL

JUDGEMENT

(1.) RULE, made returnable forthwith by consent of the parties.

(2.) THE respondent No. 1 was elected as Sarpanch of the Lohgad Gram Panchayat, Taluka and District Dhule. The Gram Panchayat consists of 7 members. 5 out of the 7 members, gave a notice to the Tahsildar of proposed motion of no confidence against the respondent No. 1. In accordance with the notice, the Tahsildar convened the special meeting of the Gram Panchayat for considering the motion of no confidence on 11th September, 2001. In the meeting held on 11th September, 2001, the motion of no confidence was passed by majority of 5 versus 2. Thus, the motion was passed by a requisite majority of not less than 2/3rd of the total number of members entitled to sit and vote at the meeting. Being aggrieved by the passing of the said motion; the respondent No. 1 filed a dispute/appeal before the Collector under sub-section (3-B) of section 35 of the Bombay Village Panchayats Act, 1958 (for short "the Act" ). The dispute/appeal was heard by the Additional Collector instead of Collector, who, by the judgment and order dated 3rd November, 2001, dismissed it. The respondent No. 1 filed a further appeal to the Commissioner under sub-section (3-C) of section 35 of the Act. It appears that the appeal was assigned by the Commissioner to the Additional Commissioner, who, by his order dated 31-12-2001 allowed the appeal. This order of the Additional Commissioner is challenged by the five petitioner, who originally moved the motion of no confidence, by filing of the present writ petition.

(3.) BEFORE the Additional Collector as well as before the Additional Commissioner, it was contended by the respondent No. 1, that the meeting dated 11th September, 2001, in which the motion of no confidence was considered and passed, was presided over by the Naib Tahsildar instead of Tahsildar and, therefore, the meeting was improper. This ground found favour with the Additional Commissioner, who held that the Naib Tahsildar had no authority to preside over the meeting which had to be presided over by the Tahsildar. It was brought to the notice of the Additional Commissioner that as per the Government Circular dated 4th July, 1998, the Naib Tahsildar could preside over the meeting in the event of certain contingencies such as, Tahsildar being on leave on that day or Tahsildar being unable to attend the meeting on account of law and order problem, etc. The Additional Commissioner had before him the order dated 10th September, 2001, passed by the Tahsildar appointing and authorising the Naib Tahsildar to preside over the meeting instead of him. The learned Additional Commissioner, however, held that the Tahsildar had not mentioned in the said order either that he was on leave or that he was involved in the maintenance of law and order and, therefore, the Tahsildar had violated the provisions of section 35 (2) of the Act, which required him to preside over the meeting. The Additional Commissioner also held that in the proceedings book, it was mentioned that the motion was passed by a majority, whereas the Act required the motion to be passed by the 2/3rd majority. In this view of the matter, the Additional Commissioner allowed the appeal.