The main legal point established in the judgment is that the State Government's notification in 1977 empowered the Additional Commissioner to exercise appellate powers under section 16(2) of the BVP Act, overriding the previous decision that did not consider this notification.

D. D. SINHA, J. :- Heard Mr. M. A. Vaishnav and Mr. S. D. Chopde, learned counsel for petitioners in Writ Petition Nos. 2616 of 2008 and 2727 of 2008 respectively as well as Mr. N. W. Sambre, learned Government Pleader for respondents.

2. In view of the conflicting opinion expressed by two learned Single Judges of this Court in respect of exercise of appellate powers by the Additional Commissioner under section 16(2) of the Bombay Village Panchayats Act, 1958 (hereinafter referred to as "the BVP Act"), the Hon'ble Chief Justice referred said issue to this Division Bench.

3. The learned Single Judge of Aurangabad Bench of Bombay High Court in the case of Atmaram Chapa Sandanshiv and another vs. Shamshadbi Bashir Shah Fakir and others, reported in 2008(3) Mh.L.J. 906 has taken a view that, the State Government, in view of provisions of section 182(1) of the BVP Act is legally entitled to delegate powers vested in it under section 16(2) of the BVP Act to the Commissioner only and it is impermissible for the Additional Commissioner to exercise those powers. Another learned Single Judge of the Nagpur Bench of Bombay High Court in view of the notification dt. 20-4-1977, issued by the State Government in exercise of powers conferred by sub-section (3) of section 13 of the Maharashtra Land Revenue Code, 1966 (hereinafter referred to as "the Code") has expressed different view; however, did not conclude the issue one way or the other and in view of decision of the Apex Court reported in (2001) 2 SCC 247, Dr. Vijay Laxmi Sadho vs. Jagdish (Para 33), referred the issue to the Hon'ble Chief Justice vide reference order dt. 14-72008 for constituting a Division Bench to resolve the controversy in issue. It is in this background that the Hon'ble Chief Justice has referred the issue to this Division Bench for resolving the controversy.

4. The facts which have given rise to the controversy in question, in nutshell, are as follows :

The petitioner in Writ Petition No. 2616 of 2008, at the relevant time, was an elected member of Gram Panchayat Ful Vmari, Tq. Manora, Distt. Washim.

Since she incurred disqualification, the Additional Collector vide order dt. 9-10-2007 disqualified her to be a member of Gram Panchayat in view of provisions of section 14(h) of the BVP Act. The petitioner filed an appeal against the said order under section 16(2) of the Act before the Additional Commissioner. The Additional Commissioner dismissed the appeal vide order dt. 27-3-2008. Hence, the petitioner has filed a Petition No. 2616 of 2008 before this Court questioning validity of exercise of appellate powers stipulated under section 16(2) of the BVP. Act by the Additional Commissioner for want of jurisdiction as well as in view of earlier decision of the learned Single Judge of this Court in the case of Atmaram Chapa Sandanshiv and another. In another Writ Petition No. 2627 of 2008, similar legal challenge is raised by the petitioner. Since both the petitions raise common legal challenge, they are heard and disposed of by this judgment.

5. Mr. Vaishnav, learned counsel for the petitioner, has contended that, against the order of disqualification passed by Collector/Additional Collector under section 14(h) of the Act, an appeal lies to the State Government under section 16(2) of the said Act. It is further contended that the State Government is only entitled to delegate these powers to the Commissioner under section 182(1) of the Act. It is the case of petitioner that there was no general or special order passed by the State Government at any point of time under section 182(1) of the Act delegating its powers under section 16(2) of the Act to the Additional Commissioner and therefore, the appellate powers vested in the State Government under section 16(2) of the Act can either be exercised by the State Government itself or as per delegation, by the Commissioner and not by the Additional Commissioner in absence of any general or special order issued by the Stat