RUKHMAJI DNYANOBA HAKKE Vs. COLLECTOR

JUDGEMENT

(1.) The petitioner contested election from Ward No. 2 and Ward No. 3 of Gram Panchayat Mashnerwadi. The petitioner was declared elected as a member of Gram Panchayat from both wards i.e. Ward No. 2 and Ward No. 3 on 21-10-2012. The results of the said election were published in the official Gazette. The petitioner failed to tender his resignation from one seat within 7 days. Vide order dated 2nd November, 2012 the Collector declared both the seats vacant. Shri Nimbalkar, the learned counsel for the petitioner eruditely contends that no opportunity of hearing was given to the petitioner before such an order was passed by the Collector. The learned counsel submits that when the consequences to the extent of unseating the elected candidate results, it was imperative for the authorities to issue notice and hear the petitioner before passing the impugned order. The petitioner's seat would not become vacant only on the ground that the resignation of one seat has not been submitted within seven days. According to the learned counsel, though the provisions of the statue and rules do not contemplate issuance of notice and hearing the petitioner, still taking into account the consequences that are contemplated the observance of principles of natural justice are to be impliedly read. The learned counsel submits that in other statute where similar provisions are made, the notice is contemplated. The learned counsel relies on the provisions of section 73-FF and 78 of the Maharashtra Cooperative Societies Act, so also judgment of the Full Bench of this Court in a case of Narayan Gujabrao Bhoyar vs. Yeotmal Zilla Parishad Karmachari Sahkari Path Sanstha Maryadit, Yeotmal, 2009 6 MhLJ 500. The learned counsel further submits that, in similar circumstances the provision of notice is contemplated under the Bombay Provincial Municipal Corporation Act and more particularly under sub-rule 2(m) of Rule 9 of the said rules.

(2.) Shri Bharaswadkar, the learned counsel for the respondent supports the order and submits that the provisions of the statute do not require any issuance of notice before passing the order.

(3.) Before I proceed to deal with the contentions canvassed by the learned counsel, it would be appropriate to refer to the relevant provisions.