Bombay High Court
Balasaheb Vitthalrao Kadam And Another vs The State Of Maharashtra And Others on 22 July, 2016
Author: Sunil P. Deshmukh
Bench: Sunil P. Deshmukh
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6IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 3368 OF 2016
1. Balasaheb s/o Vitthalrao Kadam,
Age-50 years, Occ: Sarpanch of
Village Naralad.
2. Jyoti w/o Dilip Tompe,
Age-30 years, Occ.:Household/Upsarpanch
Both R/o Naralad, Tq. Gangakhed,
Dist. Parbhani. ...Petitioners
Vs.
1. The State of Maharashtra
Through the Secretary,
Rural Development Dept.
Mantralaya, Mumbai.
2. The Additional Commissioner,
Aurangabad Division, Aurangabad.
3. The Collector,
Parbhani.
4. The Tahsildar,
Gangakhed, Tq. Gangakhed,
Dist. Parbhani.
5. Nayab Tahsildar, Gangakhed
Presiding Officer, Gangakhed.
6. Shri V.P. Davangaonkar,
Nayab Tahsildar, Gangakhed.
7. Laxman s/o. Chandrashekhar Hore,
Age-30 years, Occ. Agri./Member,
8. Maruti s/o. Nagorao Wad,
Age-64 years, Occ. Agri./Member,
9. Radhabai w/o. Maruti Kale,
Age-51 years, Occ. Household/Member,
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10. Shobhabai w/o. Raghunath Shewale,
Age-50 years, Occ. Household/Member,
11. Manisha w/o. Nivrutti Nargare,
Age-29 years, Occ. Household/Member,
12. Chhaya w/o. Munjaji Kadam,
Age-27 years, Occ. Household/Member,
13. Shaikh Rajjak Sk. Aminsaheb,
Age-45 years, Occ. Agri./Member,
Respondents no. 5 to 13 all are
R/o Naralad, Tq. Gangakhed,
Dist. Parbhani. ... Respondents
----
Mr. J.M. Murkute, Advocate for the petitioners.
Mr. A.P. Basarkar, AGP for respondent-state.
Mr. V.D. Salunke, Advocate h/f. S.K. Chavan, Advocate for
respondents no.7 to 11.
----
CORAM : SUNIL P. DESHMUKH, J.
DATE : 22-07-2016.
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith and heard finally with consent of the parties. Respondents no. 12 and 13 are served and they have chosen to be away from hearing of the writ petition.
2. A brief reference to the factual position would be that election to the post of sarpanch and up-sarpanch in 9 member gram panchayat of village Naralad, Taluka Gangakhed, District Parbhani were scheduled on 27-08-2015. In the meeting for said purpose out of 9 members, 5 members had shown disinclination to ::: Uploaded on - 28/07/2016 ::: Downloaded on - 30/07/2016 23:44:07 ::: 3 904 3368.16.odt vote by ballot which was mooted upon a request by one of the members of the grampanchayat. It has been stated that ballot papers pursuant to the request had been prepared including the symbols. Five persons who had opposed voting by ballot had refused to accept the ballot papers. It is stated that, eventually, the voting for one of the post had taken place from the 4 members.
However, upon a stated incident the meeting came to be adjourned to next date.
3. In view of section 12 of the Maharashtra Village Panchayat Act, it appears that the notice of adjourned meeting had been issued by the authorities scheduling the adjourned meeting for elections of sarpanch and up-sarpanch. In the adjourned meeting on 28-08-2015, it appears that, voting by ballot had taken place only for one post. The counting in said meeting had taken place of the voting which had contendly taken place on 27-08-2015 and on 28-08-2015, resulting into, according to the petitioners, their elections as sarpanch and up-sarpanch respectively.
4. Aforesaid elections were subjected to appeal pursuant to section 33 of the Maharashtra Village Panchayat Act, before the collector. The collector taking stock of the situation found that it may not be said that the meeting for election had been properly conducted and has found that situation does not give any clear ::: Uploaded on - 28/07/2016 ::: Downloaded on - 30/07/2016 23:44:07 ::: 4 904 3368.16.odt picture and that the procedure prescribed had not been properly followed and consequently he had allowed the appeal setting aside the elections of the petitioners.
5. In appeal therefrom, before the commissioner at the instance of petitioners has resulted in its dismissal, as he went on to confirm the decision of the collector's findings as under:
vfiykFkhZ ;kapk vihy vtZ] izfroknh dz 2 rs 4 ;kaps ys[kh Eg.k.ks] izfroknh dz-5 ;kaps odhykapk rksaMh ;qDrhokn o izdj.kkrhy miyC/k lafpdsps voyksdu dsys vlrk vls fnlwu ;srs dh] izLrqr izdj.kkr xzkeiapk;r ujGn] rk-
xaxk[ksM ;sFkhy xzkeiapk;rps ljiap o miljiap ;kauh inkP;k fuoMhlkBh fnukad 27- 08-2015 jksth fo'ks"k lHkk vk;ksftr dj.;kr vkyh gksrh ek= dkgh dkj.kkLro gh lHkk rgdwc d:u fnukad 28-08-2015 jksth nql&;k v/;klh vf/kdkjh ;kaP;k v/; {krs[kkyh ?ks.;kr vkyh- izdj.kkr vfiykFkhZ o izfroknh dz-5 ;kauh fooknhr dsysyk eqnnk vlk dh] vfiykFkhZ ;kaP;k Eg.k.;kuqlkj ljiap o miljiap inkph fuoM gh fu;eke/khy rjrwnhuwlkj >kkysyh vkgs- ek= izfroknh dz-5 ;kaP;k Eg.k.;kuqlkj gh izfdz;k ;ksX; o dk;ns'khj i/nrhus >kysyh ukgh- ;k vuq "kaxkus lnj lHksP;k fn- 27- 8-2015 o fn- 28-08-2015 jksthP;k bfro`rkarkps voyksdu dsys vlrk rs lqlaxr vlY;kps fnlwu ;sr ukgh- bfro`Rrkarkuqlkj loZ lnL;kauh erif=dk fLodkjY;k ulY;kps fnlwu ;srs- rlsp T;k pkj lnL;kauh erif=dk ?ksryh R;k lnL;kauh ernku dsY;kckcr o gs ernku dwBs dsys \s erisVh ernkukiklwu nqljs fno'kh rgdwc lHkk lq: gksbZi;Zar dwBs Bso.;kr vkyh gksrh ;kckcr dk;Zo`Rrkar dwBsp mYys[k ukgh- ghp ckc ftYgkf/kdkjh ;kaps fu"d"kkZr uksanfo.;kr vkyh vkgs] rh ;ksX; vkgs- tj lnL;kauh erif=dkp fLodkjY;k ukgh ;k ifjfLFkrhr fuoM.kwd izfdz;k gh ;ksX;fjR;k dk;ns'khji.ks o yksd'kkgh ekxkZus ?ks.;kr vkyh vls Eg.krk ;sr ukgh- rlsp fnukad 27-08-2015 o fn- 28-08-2015 ;k jksthP;k lHkkps bfro`Rrkarkps voyksdu dsys vlrk R;ke/;s vusdosGk O;R;; vkY;kps rlsp c&;kp lnL;kauh okn fuekZ.k dsY;kps fnlwu vkys R;keqGs lHksps dkedkt fouk vMFkGk ikj ikMys vls Eg.krk ;sr ukgh- ;k loZ ckch fopkjkr ?ksmu ftYgkf/kdkjh] ijHk.kh ;kauh lnj lHksps dkedkt jnn dsysys vkgs o iqUgk ljiap @ miljiap inkph fuoM.kwd ?ks.;kckcr vkns'k dsys vkgs- gs vkns'k dk;ns'khj o izdj.kkrhy oLrqLFkhrhuq:i vlY;keqGs R;ke/;s gLr{ksi dj.;kph vko';drk okVr ukgh-
6. Learned counsel Mr. Murkute, streneoulsy urges this court to indulge into his request to set aside the orders passed by the commissioner and collector for the reasons that it cannot be said that there is any irregularity since voting by secret ballot had been demanded by one of the members and the request had been ::: Uploaded on - 28/07/2016 ::: Downloaded on - 30/07/2016 23:44:07 ::: 5 904 3368.16.odt accepted and rule 10(2) in the circumstances had been followed as it was incumbent to accept such a request under the rule. If the members of gram panchayat refuse to accept ballot papers, the authorities cannot be faulted with. It was imperative to follow the process of election as per the rules which has been duly followed in the present matter including in the adjournment meeting.
7. He submits that on an earlier date i.e. on 27-8-2015 elections to the post of Sarpanch were held whereas elections to the post of up-sarpanch were held on the next date i.e. 28-08- 2015, since the meeting on 27-08-2015 had been adjourned to 28- 08-2015. Rule 12 would be accommodative of this procedure.
8. He, therefore, submits that for refusal by 5 persons to accept ballot papers and consequent election of petitioners is under the due process of law and by following the procedure under the rules. The decisions rendered by the two authorities collector and the commissioner in the circumstances would not be compatible with legal position for procedure has been appropriately followed.
Appreciation of the events by the two authorities is not in consonance with the facts and record or rather is untenable.
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9. On the other hand, Mr. Salunke appearing for respondents no.7 to 11 submits that, there are concurrent findings of facts by the authority about irregular conduct of the procedure in the adjourned meetings. He submits that rule 12 ordains conduct of the same business as have taken place in the meeting before. Here in this present case even going by the submissions on behalf of the petitioners it cannot be said that the same business was sought to be transacted in the adjourned meeting as envisaged under rule 12.
He further factually points out that the notice of adjourned meeting clearly depicts that it was for the election of the post of sarpanch and up-sarpanch and not as has sought to be contended that only for the post of up-sarpanch.
10. Accordingly, it was expected that the election for both the posts would be held on 28-08-2015, however, the facts are otherwise and the minutes also record clearly that in the meeting on 28-08-2015, the voting as is contended to have taken place is only for one post apart from that a lot of irregularities have been observed by collector and commissioner. He therefore submits that the matter really boils down to factual disputed aspects. In the circumstances, he urges that no indulgence be given to the petitioners.
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11. Learned counsel Mr. Salunke further points that, in the meeting held after the impugned orders had been passed, the outcome of which has been stalled under the interim orders of this court, voting has taken place by petitioners ballot and that all the members including petitioners have participated in said meeting.
He, therefore, submits that no interference is called for in the decision rendered by the two authorities.
12. Learned Assistant Government Pleader supports the submission of Mr. Salunke on all the counts. He further submits that, since the next meeting for elections has already taken place let the democratic process lead to its logical consequence.
13. Having heard the learned counsel as aforesaid, the factual situation to a large extent shows that the same may not give any clear picture about following regular procedure as envisaged under the Maharahstra Sarpanch and Up-sarpanch election rules.
14. As has been observed by the authorities the petition relates mainly to the factual aspects and it would not be proper for this court to enter into such facts which are disputed. Authorities having concurrently found that the meetings would not be said to be regularly conducted, this is not a case wherein the court would ::: Uploaded on - 28/07/2016 ::: Downloaded on - 30/07/2016 23:44:07 ::: 8 904 3368.16.odt exercise its discretionary and extra ordinary powers. The writ petition as such is not being entertained and is dismissed. Rule discharged.
15. Consequently, the result of the meeting which, hitherto, has not been declared under interim orders in this writ petition, can be declared. In view of aforesaid, Civil Application also stands disposed of. Record and proceedings be sent back.
(SUNIL P. DESHMUKH) JUDGE mub ::: Uploaded on - 28/07/2016 ::: Downloaded on - 30/07/2016 23:44:07 :::