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2008 Supreme(Bom) 435
IN THE HIGH COURT OF BOMBAY
A. H Joshi, J.
PUSHPA w/o PURUSHOTTAM WAGHADE - Petitioner.
Vs.
ADDITIONAL COMMISSIONER, AMRAVATI and others - Respondents.
W. P. No. 1310 of 2008
Decided on 24-3-2008.
For petitioner: A. V. Gawande
For respondents No.4 to 9: P. B. Deshmukh
For respondents No.1 to 3: S. B. Ahirkar, AGP
The importance of providing specific factual foundation to support legal challenges and the burden of proof.
Headnote:
Rule - Challenging order of Additional Commissioner in appeal - Sarpanch and UpSarpanch Vote of No Confidence Rules - Bombay Village Panchayat Act - Rule 2(2), Right to Information Act
Fact of the Case:
The petitioner challenged the order of the Additional Commissioner, Amravati Division, in appeal, regarding the rejection of the dispute and upholding of the motion of no confidence. The challenge was based on issues related to the service of notice, delegation of powers, and the presumption of actions taken in routine official course.
Finding of the Court:
The court found that the petitioner failed to provide specific factual foundation to support the challenges raised, and the allegations were deemed devoid of description of deficiencies on facts. The court also noted that the petitioner's arguments lacked proper pleading and burden of proof, and dismissed the petition with costs.
Issues: The issues included the proper service of notice, delegation of powers, and the presumption of actions taken in routine official course.
Ratio Decidendi: The court emphasized the importance of providing specific factual foundation to support legal challenges and the burden of proof. It also highlighted the need to avoid arguing points without proper foundation and the practice of pressing arguments without proper exploration of facts and documents.
Final Decision: The petition was dismissed with costs.
2. The petitioner is challenging the order passed by the Additional Commissioner, Amravati Division, Amravati, in appeal filed by the petitioner challenging the order of the Collector rejecting the dispute, and upholding motion of no confidence.
3. The challenge as argued, and spelt out in the petition, can be summarized as under:
(a) 'While issuing notice by the Tahasildar to the members of special meeting, mandatory procedure laid down under Rule 2(2) of Sarpanch and UpSarpanch Vote of No Confidence Rules has not been followed inasmuch as annexure of requisition notice was not provided to the petitioner, and thus on this count alone, the order is vitiated.
(b) The notices of the meeting has not been served properly to the members and more particularly to the petitioner as per provisions of relevant rules resulting in depriving the petitioner of the opportunity of mustering the support and removing the misunderstanding of the members, and hence, the motion is carried by violating the principle of natural justice.
(c) That the order is passed by the Officer who is not appointed as Additional Commissioner, who is rather holding the post of Dy. Commissioner Revenue substantively, and is only "in-charge officer." Hence, the order is non est being passed under sub-delegated powers.
As to legality of service of notice:
4. The grievance as is that is spelt out from the contents of the dispute raised before the Collector that "the notice as required under sub-rule (1) of Rule 2 has not been served".
5. It is seen from the perusal of the Annexure-A that the intention to initiate the motion of no confidence is duly disclosed. The reasons have been assigned. It has been addressed to Tahasildar and signed by the six persons.
6. It is seen that any objection has not been raised or agitated relating to contents and form of Annexure-A.
7. It is seen from Annexure-B that it calls upon the petitioner to attend the meeting of Panchayat on 17-11-2001 at 1 p.m., convened to prove the vote of No Confidence Motion.
8. It is alleged that this notice is not in the proper form.
9. On perusal of Annexure-B, it is seen that there is a foot note which reads to the effect "SAHAPATRA: NOTICE", in vernacular. This fact is not challenged in the dispute which was raised before the Collector or even in present petition. It is only orally urged that the copy of notice of vote of No Confidence Motion is not annexed.
10. The manner in which the challenge is raised before the Collector can be spelt out from ground No. iv reads as follows:
"That as per the mandatory provisions of the Bombay Village Panchayat Act, it is incumbent on the part of the respondent No. 1 that the notice of special meeting for motion of no confidence is to be given in the prescribed manner, however, in the instant case the notice of special meeting is not in the prescribed manner and more so is without any reasons and agenda of the meeting. Thus, on this count also the impugned resolution of no confidence against the appellant is liable to be quashed and set aside. "
(Quoted from page 23 of the Writ Petition Paper Book)
11. Through this ground, all that the petitioner urges is that the notice of special meeting of vote of No Confidence Motion has to be given in the "prescribed manner" however, that the notice is "not given in the prescribed manner".
12. The ground as raised describes adjectively. The pleadings do not lend and provide factual statement to support the challenge to the effect that the particular document i.e. copy of notice of motion was not given.
13. A vague averment that the notice has not been given 'in accordance with' law would attribute conclusion, but it has to be based on the specific narration of factual foundation, which is totally missing.
14. It can be seen from the grounds (B) and (C) raised in appeal before the Additional Commissioner, that the same deficient form and style of pleading has been repeated. I
