Bombay High Court
Shri. Balaram Pai Shuram Patil And Ors vs Smt. Sushma Pradip Mokashi on 8 January, 2019
Author: R.D. Dhanuka
Bench: R.D. Dhanuka
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905-CAWL30728.18
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL APPLICATION (L) NO. 30728 OF 2018
IN
WRIT PETITION NO. 2762 OF 2018
Balaram Pai Shuram Patil & Ors. ..... Applicants
IN THE MATTER BEWTEEN
Smt.Sushma Pradip Mokashi ..... Petitioner
VERSUS
Balaram Pai Shuram Patil & Ors. ..... Respondents
Mr.Sandesh D. Patil, a/w. Mr.Vishal Raman, i/b. Mr.Makarand S.Raut
for the Applicant.
Mr.Vishwasrao S. Deokar, a/w. Mr.M.B.Jadhav, Mr.Laxman Bedekar,
Mr.Vaibhav R. Gargade for the Original Petitioner.
Mr.R.P.Kadam, A.G.P. for the Respondent nos. 12 to 15.
CORAM : R.D. DHANUKA, J.
DATE : 8th JANUARY, 2019 P.C.
By this civil application, the applicants seek modification and/or review of the order dated 15 th March,2018 passed by this court for vacating the interim relief granted in terms of prayer clauses (e) and (f) with the clarification that the applicants are permitted to adopt a fresh notice of 'no confidence motion' as required under the provisions Maharashtra Village Panchayat Act, 1958 and for other reliefs.
2. Mr.Patil, learned counsel for the applicants (original respondent nos. 1 to 6, 8 and 9) invited my attention to the prayer clauses (e) and
(f) granted by this court while admitting the Writ Petition No.2762 of ::: Uploaded on - 11/01/2019 ::: Downloaded on - 12/01/2019 05:12:35 ::: kvm 2/5 905-CAWL30728.18 2018 on 15th March,2018 and would submit that in view of these prayers, the respondent nos. 13 to 15 have been restrained from taking any steps for filing the vacant post of Sarpanch in future and restraining his clients from moving fresh 'no confidence motion' in accordance with the Maharashtra Village Panchayat Act, 1958. He submits that though under the provisions of Maharashtra Village Panchayat Act, 1958, the other members of the Grampanchayat are entitled to move no confidence motion under section 35 of the said Act against the petitioner, however in view of the blanket stay granted by this court, his clients are not able to take any such steps under section 35 (3-A) of the said Act.
3. The civil application is opposed by the original petitioner on various grounds. It is submitted by the learned counsel for the original petitioner that this civil application is not maintainable since the applicants have already filed civil application bearing no. 912 of 2018 for the same relief which is still pending and this application is barred by res-judicata.
4. The next submission of the learned counsel for the original petitioner is that the civil application for seeking relief/modification is not maintainable since there is alternate remedy for relief/modification of the said order passed by this court. The original petitioner has also opposed the civil application on the ground that the the civil application is not filed within 30 days from the date of the order passed by this court and without filing any application for condonation of delay, this application cannot be entertained by this court.
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5. It is submitted by the learned counsel that the next elections are due after about 11 months and thus this court shall not pass any favourable order in favour of the applicants.
6. Insofar as the issue of res-judicata raised by the original petitioner is concerned, insofar as this civil application is concerned, which is for the modification and/or review of the order dated 15 th March,2018 passed by this court, though the applicants have prays for review and/or modification, Mr.Patil, learned counsel for the applicants seeks modification of the said order on the ground that the blanket stay order is granted by this court and if the same is not vacated, the other members of the Grampanchayat would never be able to conduct any fresh election or to move no confidence motion even if a separate cause of action arises. He submits that if an appropriate order is passed by this court, the applicants would not press the civil application bearing no. 912 of 2018 filed by his clients in this writ petition. He submits that since his clients are not pressing for application for review, a question of applicability of 30 days period under Article 124 of the Schedule 2 of the Limitation Act, 1963 would not apply.
7. A perusal of the order passed by this court clearly indicates that this court had granted interim relief in terms of prayer clauses (c) to (f). In the writ petition filed by the original petitioner, the petitioner had prayed for writ of certiorari for quashing and setting aside the order dated 9th March, 2017 passed in the no confidence motion and the ::: Uploaded on - 11/01/2019 ::: Downloaded on - 12/01/2019 05:12:35 ::: kvm 4/5 905-CAWL30728.18 order dated 14th February,2018. By the said order passed by this court, this court has not only stayed the no confidence motion and order dated 14th February,2018 annexed at Ex.H to the petition, but has also permitted the original petitioner to function as a Sarpanch and has restrained respondent nos. 13 to 15 from taking steps to fill the vacant post of Sarpanch. This court has also permitted the petitioner to function as Sarpanch during the pendency of the petition. If this petition remains pending for long period, though the tenure of the post of Sarpanch may expire, the petitioner would be continue to act as a Sarpanch during the pendency of the writ petition.
8. Insofar as the applicants are concerned, the applicants are seeking limited clarification and/or modification of the said order to the effect that the applicants be permitted to move 'no confidence motion' if required under the provisions of the Maharashtra Village Panchayat Act, 1958. In my view, the clarification/modification sought by the applicants is reasonable and is necessitated in view of the blanket order passed by this court while admitting the writ petition.
9. In my view, no period of limitation requires for the purpose of filing an application for modification under Article 124 Schedule 2 as canvassed by the petitioner.
10. The order dated 15th March,2018 is clarified to the effect that if any fresh 'no confidence motion' is moved by any of the applicants against the original petitioner, the same shall be considered on its own merits in accordance with law. The interim order passed by this court ::: Uploaded on - 11/01/2019 ::: Downloaded on - 12/01/2019 05:12:35 ::: kvm 5/5 905-CAWL30728.18 stands clarified to this effect. If any no confidence motion is moved by the applicants, the concerned authority to accept such resolution and shall deal with the same in accordance with law.
11. Civil application is disposed of in the aforesaid terms. There shall be no order as to costs.
12. All the parties including the authorities to act on the authenticated copy of this order.
13. The application made by Mr.Deokar, learned counsel for the original petitioner for stay of this order is rejected.
[R.D. DHANUKA, J.] ::: Uploaded on - 11/01/2019 ::: Downloaded on - 12/01/2019 05:12:35 :::