JYOTI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) IN this writ petition under Articles 226 and 227 of constitution of India, petitioner who happens to be President of the Zilla parishad, Washim has challenged the show cause notice dated 30-3-2005 served upon her by Commissioner, Amravati Region, Amravati, respondent No. 3 herein, under section 16 (l) (i) of Maharashtra Zilla Parishad and Panchayat samiti Act, 1961 (hereinafter referred to as "1961 Act" ). On the 19-4-2005 after hearing Advocate Khapre for petitioner I have issued notice before admission and directed the petitioner to file her reply to the said show cause notice before respondent No. 3. After hearing learned AGP on 3-5-2005 said respondent No. 3 was permitted to proceed further with inquiry but was restrained from passing final orders to the prejudice of petitioner. Writ petition stands at same stage for last about four months. Advocate Priyadarshan Madkholkar has moved one application vide Civil Application No. 3463/2005 on behalf of a Sarpanch of gram Panchayat and a citizen of said gram panchayat for vacation of interim orders stating that they have moved respondent No. 3 for declaration of disqualification under above-mentioned provisions and show cause notice has been issued at their instance. The petitioner has filed reply opposing this application. It is in this background that matter is listed before me.

(2.) I have heard Advocate Khapre and Advocate Madkholkar. Advocate madkholkar. contended that in view of provisions of Chapter XVII, Rule 18 of bombay High Court Appellate Side Rules, 1960 (for brevity - High Court Rules, hereafter) challenge to "show cause notice" dated 30-3-2005 is not challenge to any "order" and as such, the Single Judge of this Court is not competent to take cognizance of writ petition. He argues that matter must be listed before Hon'ble division Bench. Advocate Khapre for petitioner opposes this argument and according to him show cause notice is also an order as contemplated by explanation appearing at the end of Chapter XVII, Rule 18, and hence cognizance must be taken by Single Judge of this Court only. I have heard both the learned counsels on 19-9-2005, 20-9-2005 and thereafter on 21-9-2005. Both the counsels requested the Court to initially decide the issue of jurisdiction of the single Judge in the matter.

(3.) ADVOCATE Khapre has invited attention of Court to provisions of Rule 18 (3) to point out that challenge to orders passed by any quasi-judicial authority is provided for before Single Judge under High Court Rules. He also invites attention to explanation added in the year 1998 to show that explanation also contemplates challenge to all orders passed by any judicial or quasi-judicial authority whether by such orders there is any adjudication or not, before Single judge. He relies upon the Division Bench judgment of this Court between vasantadada Dugdh Vyavasaik vs. Commissioner, Dairy Development reported at 7997 Mh. L. J. 734. He states that explanation has been added because of view taken in this judgment and as such, all orders of quasi-judicial authority including a order of notice to show cause can be challenged before Single Judge. He also places reliance upon judgment of Hon'ble Apex Court in case between Union of india and another vs. S. P. Anand and others reported in 1998 (6) SCC 466. He states that even a formal notice is therefore to be treated as order.