KISHOR TANAJI KHARAT Vs. DIVISIONAL COMMISSIONER

JUDGEMENT

(1.) Heard. Rule. Rule made returnable forthwith. With the consent of the parties, petition is taken up for final disposal at admission stage.

(2.) Petitioners are members of Village Panchayat Dahegaon, Tq. Gangapur, Dist. Aurangabad. Respondent no. 5 was elected as Sarpanch of Village Panchayat, however, she tendered resignation on 4-11-2011 to the Chairman of the Panchayat Samiti, Gangapur. Panchayat Samiti, Gangapur, directed to place the resignation for verification in the meeting of Village Panchayat. Accordingly, meeting of Village Panchayat was convened on 29-11-2011 and the resignation tendered by respondent no. 5 was accepted in her presence as well as in the presence of her husband who was also member of Village Panchayat. Respondent no. 5 presented dispute to the Additional Collector, Aurangabad, on 19-12-2011 objecting validity of acceptance of resignation. Alongwith dispute, she tendered application seeking condonation of delay in filing dispute. It is the contention of respondent no. 5 that infact she has not tendered resignation. Some blank papers were handed over by her to Sk. Kalim Sk. Fakir and Shrimant Raibhan Chape who have mis-used the same and prepared resignation letter fraudulently. It is also her contention that verification of resignation was conducted in her absence. Although she attended the meeting on 29-11-2011, since she was not keeping good health, she left the meeting before consideration of her alleged resignation by members present in the meeting. She was admitted in hospital at Bombay and after returning back she got knowledge in respect of alleged resignation and its acceptance. Respondent no. 5 thus contends that delay occurred in presenting the dispute deserves to be condoned. Additional Collector, Aurangabad, who heard the matter opined that delay occurred in presenting the dispute is not liable to be condoned since the provisions of section 5 of the Limitation act are not applicable and, as such, proceeded to reject the application by order dated 22-12-2011. Being aggrieved by the judgment and order passed by the Additional Collector, Aurangabad, on 22-12-2011, respondent no. 5 presented appeal under section 29(4) of the Bombay Village Panchayats Act, 1958, before the Divisional Commissioner, Aurangabad who allowed the same by order dated 13-2-2012 thereby remitting the matter back to the Additional Collector for reconsideration. The Divisional Commissioner in his order has observed that delay occurred in tendering the dispute is of a very short duration and therefore, the Sarpanch needs to be extended an opportunity of hearing. Judgment and order passed by the Additional Commissioner, Aurangabad is subject matter of challenge in this petition.

(3.) Heard arguments advanced by learned counsel for respective parties. Mr. Palodkar, learned counsel for petitioners contends that dispute contemplated under section 29(4) of the Bombay Village Panchayat act is not in the nature of a suit and the Collector, considering the dispute is not a Court and as such, provisions of Limitation Act are not applicable. It is further contended by learned counsel for petitioner that Bombay Village Panchayat Act is a complete code in itself and applicability of provisions of Limitation act, more specifically, sections 4 to 24 of the said Act, are excluded. Learned counsel for respondents contend that in view of section 29(2) of the Bombay Village Panchayat Act, provisions of sections 4 to 24 of Limitation act are applicable and the Commissioner was justified in allowing the appeal. Section 29 of the Bombay Village Panchayat act provides for resignation of member and dispute regarding resignation. It reads thus: