Writ Petition No.506 of 2013

12th August, 2014.

Petitioner Counsel: Shri S.D. CHOPDE
Respondent Counsel: Ms. P.D. RANE, Shri A.M. GHARE & Shri A.B. MIRZA, Shri MAHESH RAI

Cases Cited:
Viswas Pandurng Mokal Vs. Group Gram Panchayat, Shihu and Ors., 2011(3) ALL MR 778=2011 (3) Mh.L.J. 500 [Para 7,11]
State (Delhi Administration) Vs. Pali Ram, (1979) 2 SCC 158 [Para 18]

JUDGMENT

JUDGMENT :- The Writ Petition arises out of the order passed by the Additional Collector under Section 35 (3-B) of the Maharashtra Village Panchayats Act, 1958 (hereinafter referred to as "Act of 1958"). By the impugned order, the learned Additional Collector has allowed the application filed by the respondent no.4 raising the dispute to the validity of the motion of no confidence passed against him.

2. The Village Panchayat, Hiwarkhed, Tahsil Telhara, District Akola, comprises of 15 members. 06 members of the Village Panchayat had given the notice to the Tahsildar to convene the special meeting for considering the no confidence motion against the respondent no.4. The Tahsildar convened special meeting on 27th August, 2012 in which the no confidence motion was passed by the majority of 11 : 1. The respondent no.4 had challenged the Resolution of no confidence motion passed against him by filing application under Section 35 (3-B) of the Act of 1958. Amongst several grounds raised by the respondent no.4, one of the ground was that the respondent nos. 5 to 7 had not received the notice of the special meeting held on 27th August, 2012 and, therefore, the meeting held on 27th August, 2012 was illegal and consequently, the Resolution of no confidence motion passed in that meeting was unsustainable in law. In the proceedings before the Additional Collector, the following witnesses were examined:-

(i)	Ku. Vidhya Shrirang Mawale	Talathi
(ii)	Shri Pandurang Motiram Natte	Panch
(iii)	(iii) Shri Prakash Vishwanath Gawande ..Police Patil –	Panch
(iv)	Manohar Narayan Adhao	Talathi
(v)	Dattu Shankar Dhurdeo	Kotwal
(vi)	Parashram panchari Hage	Panch

The above mentioned witnesses were examined to prove that the notices of special meeting were served on the members of the Village Panchayat. The respondent nos. 5 and 6 disputed their signatures showing acknowledgment of the notices of the special meeting. The respondent nos. 5 and 6 had filed an application praying for referring the signatures for Expert's opinion. The petitioners had opposed the application filed by the respondent nos. 5 and 6 on the ground that the respondents had mischievously endorsed the different signatures on the copy of the notice, than the usual signatures. The petitioners had submitted that the respondent no.5 puts his signature in Marathi, however, on the copy of the notice, he had puts his signature in English. The petitioners had further submitted that the respondent no. 6 puts his signature in English, however, on the copy of the notice he had put his signature in Marathi. The learned Additional Collector, after considering the submissions made on behalf of the respective parties, by the order dated 18th September, 2012, rejected the application filed by the respondent nos.5 and 6.

3. The learned Additional Collector proceeded with the matter and after considering the pleadings of the parties, the evidence and other material on the record by the order dated 27th September, 2012 dismissed the application filed by the respondent no.4 .

4. The respondent no.4 had challenged the order passed by the Additional Collector in Appeal before the Additional Commissioner. The learned Additional Commissioner by the order dated 1st November, 2012 dismissed the appeal. The respondent no.4 had challenged the orders passed by the Additional Collector and the Additional Commissioner before this Court in Writ Petition No.5407/2012. This Court by order dated 17th December, 2012 set aside the above mentioned orders and remanded the matter to the Additional Collector to decide the application filed by the respondent no.4 on merits in accordance with law. The learned Advocates, who appeared for the respondent no.4 and the petitioners had requested this Court to direct the Additional Collector to proceed with the matter from the stage of final hearing and decide the same after disputed signatures of respondent nos.5 and 6 with their admitted signatures and this Court, accepting the submissions, made on behalf of the parties, had passed the order accordingly.

5. After remand, the learned Additional Collector decided the application filed by the respondent no.4, by the order dated 23rd January, 2013. The learned Additional Collector concluded that the signatures of the respondent nos. 5 and 6 on the notices were not similar to their signatures on the record i.e. on the Village Panchayats Monthly Meeting Proceedings Book, Vakalatnama, reply, affidavit and other documents. The learned Additional Collector concluded that the notices of the special meeting were not properly served on the respondent nos. 5 and 6 and, therefore, the Resolution of no confidence motion passed on 27th August, 2012 was illegal. The learned Additional Collector has quashed the above mentioned Resolution. The petitioners being aggrieved by this Order passed by the learned Additional Collector have filed this writ petition.

6. Shri Chopde, the learned Advocate for the petitioners, has submitted that the Bombay Village Sarpanch and Upa-Sarpanch (No confidence Motion) Rules, 1975 (hereinafter referred to as "No Confidence Motion Rules of 1975") have been made by the legislature in exercise of the powers conferred by Section 176 (vi) and (xlvii) of the Act of 1958 for regulating the procedure for conducting special meeting for considering the no confidence motion against Sarpanch and Upa-sarpanch. It is submitted that that there is nothing in the No Confidence Motion Rules of 1975 which requires that the notice of the special meeting should be individually served on each member of the Village Panchayat. In support of this submission, Shri Chopde, the learned Advocate has compared the Bombay Village Panchayats (Sarpanch and Upa-Sarpanch) Election Rules, 1964 (hereinafter referred to as the "Election Rules of 1964") with the relevant Rules of No Confidence Motion Rules of 1975. The learned Advocate has compared the scheme as laid down in Rule 4 and Rule 5 of the Election Rules of 1964 with the scheme as laid down in Rules 2(2) of the No Confidence Motion Rules of 1975. It is submitted that there is no requirement for service of individual notice on the members of the Village Panchayat under the No Confidence Motion Rules of 1975 and therefore, the order passed by the learned Additional Collector quashing the Resolution of no confidence motion against the respondent no.4, on the ground that the respondent nos. 5 and 6 were not properly served with the notice of the special meeting is unsustainable.

Shri Chopde, the learned Advocate for the petitioners, has submitted that six witnesses have been examined to prove that the notices of the special meeting were served on the individual members also. It is submitted that the witnesses, who are examined are independent witnesses and some of them are employees of the Government. It is submitted that the respondent no.4 had cross-examined the witnesses and nothing has been brought on the record to disregard the testimony of the witnesses on the point of service of notice of the special meeting on the members of the Village Panchayat. The submission is that the learned Additional Collector has completely overlooked the evidence on the record and has committed an error by deciding the application filed by the respondent no.4 only after comparing the signatures of the respondent nos. 5 and 6. It is submitted that the Additional Collector has failed to appreciate the challenge raised on behalf of the petitioners that the signatures put by the respondent nos. 5 and 6 acknowledging the receipt of notices are mischievously endorsed in a different manner than their usual signatures and, therefore, the comparison of their signatures acknowledging the receipt of the notices with their signatures on other documents was improper. It is submitted that out of 15 members of the Village Panchayat, 11 members have voted against the respondent no.4 and in view of this fact, the democratic process should not have been shuttled by the learned Additional Collector, on the basis of the irrelevant considerations.

7. Shri Ghare, the learned Advocate for the respondent no.4, has submitted that No Confidence Motion Rules of 1975 are silent regarding the service of the notice of the special meeting of no confidence on the members of the Village Panchayat and, therefore, the Bombay Village Panchayats (Meetings) Rules of 1959 (hereinafter referred to as "Meetings Rules of 1959) will have to be read into the No Confidence Motion Rules of 1975. It is submitted that Section 35 (2) of the Act of 1958 provides that that the Tahsildar shall convene a special meeting of the Panchayat for considering the motion of no confidence, within seven days from the date of receipt of the notice of no confidence motion. It is submitted that the procedure for convening the special meeting as laid down in the Meetings Rules of 1959 has therefore, to be followed while convening the special meeting for considering the no confidence motion. It is submitted that the Full Bench of this Court in the judgment given in the case of Viswas Pandurng Mokal Vs. Group Gram Panchayat, Shihu and others reported in 2011 (3) Mh.L.J. 500 : [2011(3) ALL MR 778] has held that the provisions of the Meetings Rules of 1959 generally and provisions of Rule 17 of Meetings Rules of 1959 in particular shall apply to the meeting convened under Section 35 of the Act of 1958.

8. The learned Advocate for the respondent no.4 has submitted that at the time of hearing of the Writ Petition No.5407/2012 the petitioners had opposed for referring the disputed signatures to the hand-writing expert and, therefore, with the consent of the parties, this Court had directed the Additional Collector to compare the disputed signatures of the respondent nos. 5 and 6 with their admitted signatures available on the record. It is contended that the submission now made on behalf of the petitioners that the learned Additional Collector could not have compared the disputed signatures of respondent nos.5 and 6 with their admitted signatures, is hit by the principles of the constructive res judicata. It is submitted that the petitioners have not raised the ground about the mischief on the part of the respondent nos. 5 and 6 by putting their signatures in a different manner on the acknowledgment showing the receipt of notice of the special meeting and therefore, there was no occasion for the learned Additional Collector to examine the challenge as is being now raised by the petitioners. It is submitted that the Additional Collector has recorded the finding of fact about the difference in the signatures of the respondent nos. 5 and 6 on the acknowledgment of the notices of no confidence motion and it would not be proper for this Court to interfere with the findings of fact in the extraordinary writ jurisdiction.

Shri Ghare, the learned Advocate for the respondent no.4 has submitted that Section 35 (3-C) of the Act of 1958, which is deleted by Mah. Act 16 of 2012 on 02/10/2012 was on the statute book when the proceedings under Section 35 (3-B) of the Act of 1958 were initiated. It is submitted that therefore the petitioners should have filed the appeal under Section 35 (3-C) of the Act of 1958 before the Commissioner. It is submitted that the petitioners having not filed the appeal, the writ petition should not be entertained.

The learned Advocate has submitted, in the alternatives, that if at all the order passed by the Additional Collector is found to be unsustainable, then the matter should be remanded for decision according to law.

9. Shri Mahesh Rai, the learned Advocate for respondent nos. 5 to 7, has adopted the submissions made on behalf of the respondent no.4.

Ms. P.D. Rane, the learned Assistant Government Pleader for respondent nos. 1 and 2 has supported the impugned order.

10. After considering the submissions made by the learned Advocates for the respective parties, I find that the issue which is required to be adverted to, is:-

"Whether individual notice of the special meeting convened for considering the no confidence motion against Sarpanch is required to be given to every member of the Village Panchayat"

11. It is undisputed that there is no requirement under the No Confidence Motion Rules of 1975 to serve individual notice of the special meeting on every member of the Village Panchayat.

In the judgment given in the case of Vishwas Pandurang Mokal Vs. Group Gram Panchayat, Shihu and others, [2011(3) ALL MR 778] the question of law which was referred to the Full Bench of this Court for consideration was:-

"Whether the provisions of the Meetings Rules of 1959 and in particular Rule 17 thereof, will apply to the meeting convened specially for considering the motion of no confidence moved in accordance with the sub-section (1) of Section 35 of the said Act and the No Confidence Motion Rules?

12. The conclusions of the Full Bench recorded in paragraph 17 of the judgment are as follows:-

17. Thus, Rule 17 provides that the person who has submited notice of the motion shall move the motion in the meeting. Rule 20 deals with how amendments to the motion can be proposed. Rule 21 deals with how a person who wants to speak on a motion has to address. What should be the duration of the speech and what is the decoram to be followed in speaking at the meeting. Thus, in these Rules provisions in detail have been made for the conduct of the meeting both ordinary and special of the village panchayat. Perusal of the No Confidence Motion Rules shows that they do not contain any provision in relation to the conduct of the meeting. Provisions for conduct of the meeting of the village panchayat are to be found in the Meeting Rules. The manner of submitting a requistion for convening a special meeting of the village panchayat to consider motion of no confidence against the Sarpanch or Upa-Sarpanch is to be found in sub-sections (1) and (2) of section 35 and the No Confidence Motion Rules. But neither in section 35 nor in the No Confidence Motion Rules we find provisions made as how many days notice should be given to the members of the Special meeting to be convened under section 35. Therfore, in our opinion, for that purpose one will have to follow the provisions of the Meeting Rules because that purpose one will have to follow the provisions of the Meeting Rules becuase they lay down as to how many days notice of special meeting is to be given to the members. Section 35 provides that the Sarpanch or Upa-Sarpanch against whom the motion is to be moved is entitled to attend the participate in the meeting, and he is entitled to speak at the meeting. But there is no provision to be found made in section 35 or in the No Confidence Motion Rules as to the manner in which the Sarpanch or Upa-Sarpanch can exercise his right to participate and speak at that meeting. Provisions for that purpose are to be found in the Meeting Rules. Neither section 35 nor No Confidence Motion Rules lay down as to what is to be done if the requisite quorum is not present at such meeting. But the Meeting Rules contain provisions in that regard. Neither section 35 nor No Confidence Motion rules makes provision dealing with the situation when the members present in the meeting disregard the authority of the presiding officer. Those provisions are to be found in the Meeting Rules. In our opinion, therefore, there is no reason why the provisions of the Meeting Rules to the extent that no contrary provision is made either in the Act itself or in the No Confidence Motion Rules should not apply to a meeting called under section 35. In our opinion, if the provisions of the Meeting rules are held to be applicable to a meeting called under section 35, it will facilitate holding of meeting under section 35 effectively. Therefore, in our opinion, it can be safely said that the privisions of the Meeting Rules generally apply to a special Meeting convened under section 35. However, such provisions of the Meeting Rules which are found to be contrary to the provisions contained either in the Act in relation to the holding of the special meeting for consideration of motion of no confidence against Sarpanch or Up-Sarpanch or in the No Confidence Motion Rules would not apply to a meeting called under section 35. Now taking up the question whether specifically provisions of Rule 17 of the Meeting Rules apply to a meeting called under section 35 is concerned, in our opinion, the provisions of section 17 will apply in a meeting called under section 35. As observed above section 35 contains a provision for submission of requisition by members to the Tahsildar for calling a special meeting of the village panchayat to consider the motion of no confidence against Sarpanch or Upa-Sarpanch. It casts a duty on the Tahsildar to call a meeting for that purpose within seven days of the receipt of the requisition. But section 35 does not contain any provision as to how that meeting is to be conducted, save and except to provide that the Sarpanch or Upa-Sarpanch concerned shall have a right ot attend and participate in that meeting. We have already observed above that perusal of No Confidence Motion Rules and the Form of the requisition shows that when the members of the village panchayat submit the requistion to the Tahsildar, what they actually do is that they request the Tahsildar to convene a special meeting of the village panchayat so that in that meeting they can move a motion of no confidence against Sapranch Upa-Sarpanch. It is, thus, clear that moving of the motion of no confidence is not by submission of requisition to the Tahildar. The requisition is only for calling special meeting to facilitate moving of motion of no confidence. The motion of no confidence is acually moved in the meeting of the village panchayat and as there is no contrary provision to be found either in the Act or in the Non Confidence MotinRules, in relation to moving of a motion ina meeng of the village panchayat, Rules 17 of the Meeting Rules whch makes such a provision will apply. In the Meeting Rules there is a provision made for calling a special meeting of village panchayat becuase a requisition is received from members. Therefore, concept of convening a special meeting of the village panchayat as a consequence of requistion received from the members is to be found in the Meeting Rules itself and therefore, all those provisions contained in the Meeting Rules in relation to convening and holding of a special meeting of the village panchayat will apply to the special meeting convened under section 35, subject to there being any specific contrary provision in the Act or in the No Confidence Motion rules. Perusal of the provision of sub-section (3A) of section 35 shows that provision makes difference between moving of a motion and carrying of a motion by requisite majority. Provision of sub-section (3-A) of section 34 reads as under:-

(3-A) If a motion (is not moved or is not carried) by (a majority of ot less than two-third of) (or, as the case may be, three-fourth, of) the total number of hte members who are for the time being entitled to sit and vote at any meeting of the panchyat, no such fresh motion shall be moved against the Sarpanch, or as the case may be, the Upa-Sarpanch within, a period of (one year) from the date of such special meeting". (emphasis supplied)

13. It is clear that the Full Bench has held that the provisions of the Meetings Rules of 1959, which are contrary to the provisions contained either in the Act of 1958 or in the No Confidence Motion Rules of 1975 in relation to holding of special meeting for considering no confidence motion against Sarpanch or Upa-sarpanch, would not apply to the meeting under Section 35 of the Act of 1958. Therefore, it has to be examined as to whether the provisions of Meetings Rules of 1959 which provides for the service of notice of the special meeting to individual members are contrary to the provisions of the No Confidence Motion Rules of 1975.

14. Shri Ghare, the learned Advocate has relied on Rule 4 of the Meetings Rules of 1959 and has submitted that the Secretary of the Village Panchayat has to send intimation to all the members of the village panchayat about the date, time and place of and the business to be transacted at such meeting. It is submitted that if the provisions of Rule 4 of the Meetings Rules of 1959 are not read into No Confidence Motion Rules of 1975 then it will lead to a situation where the meeting for consideration of the No Confidence Motion against the Sarpanch or Upa-Sarpanch would be conducted secretly without giving intimation to some of the members of the village panchayat and this cannot be accepted in the democratic set up. It is submitted that the provisions of Rule 4 of the Meetings Rules of 1959 are not contrary to the provisions of the No Confidence Motion Rules of 1975 and the reading of Rule 4 of the Meetings Rules of 1959 into No Confidence Motion Rules of 1975 will supplement the effectiveness of the No Confidence Motion Rules of 1975. It is submitted that No Confidence Motion Rules of 1975 are silent on the point of the service of notice of special meeting on every member of the Village Panchayat and this vacuum can be filled up by Rule 4 of the Meetings Rules of 1959.

15. Per contra, Shri Chopde, the learned Advocate, has submitted that the Legislature has consciously not incorporated the requirement of service of notice of special meeting to consider the no confidence motion against Sarpanch and Upa-sarpanch for every member of the Village Panchayat. The learned Advocate has pointed out that Rule 4 of the Election Rules of 1964 requires that the notice of meeting convened for election of Sarpanch and Upa-sarpanch should be given to every member of Village Panchayat. It is pointed out that the Rule 4 of the Meetings Rules of 1959 requires that the notice of the ordinary meeting of any meeting called under Sections 28, 33 or 43 of the Act of 1958 is required to be sent to all the members of the Village Panchayat. It is submitted that no such requirement has been incorporated in Rule 2 of the No Confidence Motion Rules of 1975. I find force in the submissions made on behalf of the petitioners.

Rule 2 of the No Confidence Rules of 1975 reads as follows:-

"2(1): The members of a panchayat who desire to more a motion of no-confidence against the Sarpanch or the Upa-Sarpanch shall give notice thereof in the form appended hereto to the tahsildar of the taluka in which such panchayat is functioning. Where the members desire to move the motion of no-confidence against the Sarpanch as well as the Upa-Sarpanch, they shall give two separate notices.

Rule 2(2): The notice under sub-rule (1) shall be accompanied by seven additional copies thereof, and the Tahsildar shall send one copy to the Sarpanch, one to the Upa-Sarpanch and one each to the Zilla Parishad, the Panchayat Samiti, the Collector and the Commissioner. One copy shall be given to the Secretary.

2(3): The Tahsildar shall, immediately on receipt of notice under sub-rule (1), satisfy himself that the notice has been given by not less than one-third of the total number of members (other than associate members) who are for the time being entitled to sit and vote at any meeting of the panchayat and then convene a special meeting for the purpose within seven days from the date of receipt of such notice."

Rule 2(1) of the No Confidence Motion Rules of 1975 lays down that the notice of no confidence motion against the Sarpanch or Upa-sarpanch has to be given in the prescribed form to the Tahsildar of the Taluka in which the Village Panchayat is functioning.

Rule 2(2) of the No Confidence Motion Rules of 1975 lays down that such notice shall be accompanied by seven additional copies and the Tahsildar shall send:

(i) one copy to Sarpanch;

(ii) one copy to Upa-sarpanch;

(iii) one copy to Zilla Parishad;

(iv) one copy to the Panchayat Samiti;

(v) one copy to the Collector;

(vi) one copy to the Commissioner; and

(vii) one copy to the Secretary of Village Panchayat.

Thus, Rule 2(2) of the No Confidence Rules of 1975 specifies the numbers of copies of the notice which are required to be given and also specifies to whom the copies of notice is to be given.

16. Considering the provisions of Rule 2(2) of the No Confidence Rules of 1975, it is clear that the Legislature has consciously not incorporated the requirement of serving the notice of the special meeting convened for considering the no confidence motion against Sarpanch and Upa-sarpanch of Village Panchayat, on all the members of the Village Panchayat individually. If the provisions of Rule 4 of the Meetings Rules of 1959 are read into the No Confidence Motion Rules of 1975, it would amount to introducing something in the No Confidence Motion Rules of 1975 which the Legislature has consciously not incorporated in the No Confidence Motion Rules of 1975. Therefore, in my view, Rule 4 of the Meetings Rules of 1959 cannot be read into the No Confidence Motion Rules of 1975. Consequently, it cannot be said that the notice of the special meeting for considering the no confidence motion against the Sarpanch or Upa-sarpanch of Village Panchayat has to be served individually on every member of the Village Panchayat. In view of this, the order passed by the learned Additional Collector holding that the Resolution of no confidence motion passed against the respondent no.4 is bad in law as the notice of the special meeting was not served on the respondent nos. 5 and 6 is unsustainable in law.

17. In the order passed by the learned Additional Collector, the only basis for concluding that the notice of the special meeting was not received by the respondent nos. 5 and 6 is that the signatures of the respondent nos. 5 and 6 showing the acknowledgment of the notice of the special meeting, are not of the respondent nos.5 and 6 For this purpose, the learned Additional Collector has compared the signatures of respondent nos.5 and 6 showing the acknowledgment of the notice of the special meeting, with their signatures on the proceedings book, Vakalatnama, affidavit and some other documents on the record. It had been the specific case of the petitioners that the respondent nos. 5 and 6 have mischievously endorsed the different signatures on the acknowledgment than their regular signatures. The petitioners have been submitting that the respondent no.5 regularly puts his signature in Marathi, however he had put his signature in English on the acknowledgment of receipt of the notice of the special meeting. The petitioners have submitted that the respondent no.6 regularly puts his signature in English but he had made his signature in Marathi on the acknowledgment of the notice of the special meeting. The learned Additional Collector has given a go-by to the submissions of the petitioners. The learned Additional Collector has given a go-by to the evidence of six witnesses which shows that the notice of the special meeting was served on the respondent nos. 5 and 6. The Additional collector has committed an error of jurisdiction by coming to the conclusions only on the basis of the comparison of the signatures and overlooking the evidence on the record. This serious lapse on the part of the learned Additional Collector, vitiates the order passed by him.

18. It is relevant to consider the powers of the Additional Collector while exercising quasi-judicial authority. In my view, the the Additional Collector will not be competent to compare the signatures for adjudicating the genuineness or otherwise of the signatures.

Section 73 of the Indian Evidence Act, 1872 gives the power to the Court to compare the disputed signatures with the admitted signatures.

Section 45 of the Indian Evidence Act, 1872 provides that the comparison of the signatures may be made by the handwriting expert. The Hon'ble Supreme Court in the judgment given in the case of the State (Delhi Administration) Vs. Pali Ram reported in (1979) 2 SCC 158 has considered the provisions of Section 45 and Section 73 of the Indian Evidence Act and has recorded as follows:

24. Just as in English Law, the Indian Evidence Act recognises two direct methods of proving the handwriting of a person :

(1) By an admission of the person who wrote it.

(2) By the evidence of some witness who saw it written.

These are the best methods of proof. These apart, ther are three other modes of proof by option. They are :

(i) By the evidence of a handwritng expert (Section 45)

(ii) By the evidence of a witness acquainted with the handwriting of the person who is said to have written the writing in question, (Section 47)

(iii) opinion formed by the court on comparison made by itself (Section 73)

All these three cognate modes of proof involve a process of comparison. In mode (i), the comparison is made by the expert of the disputed writing with the admitted or proof of writing of the person who is said to have written the questioned document. In (ii), the comparison takes the form of a belief which the witness entertains upon comparing the writing in question, with an exemplar formed in his mind from some previous knowledge or repetitive observance of the handwriting of the person concerned. In the case of (iii), the comparison is made by the court with the sample writing or exemplar obtained by it from the person concerned.

25. A sample writing taken by the court under the second paragraph of Section 73 is, in substance and reality, the same thing as "admitted writing" within the purview of the first paragraph of Section 73, also. The first paragraph of the section as alredy seen, provides for comparison of signature, writing, etc purporting to have been written by a person with others admitted or proved to the satisfaction of the court to have been written by the same person. But it does not specifically say by whom such comparison may be made. Construed in the light of the English Law on the subject, which is the legislative source of this provision, it is clear that one familiar with the handwriting of the person concerned (Section 47) or by the Court. The two paragraphs of the section are not mutually exclusive. They are complementary to each other.

26. Section 73 is therefore to be read as a whole, in the light of Section 45. Thus read, it is clear that a court holding an enquiry under the Code of Criminal Procedure in respect of an offence triable by itself or by the Court of Session, does not exceed its powers under Section 73 if, in the intersts of justice, it directs an accused person appearing before it, writing expert chosen or approved by the court, irrespective of whether his name was suggested by the prosecution or the defence, because even in adopting this course, the purpose is to enable the court before which he is ultimately put up for trial, to compare the disputed writing with his (accused's) admitted writing, and to reach its own conlcusion with the assistance of the expert.

The learned Additional Collector has undertaken the exercise of comparing the signatures of respondent nos. 5 and 6 without adverting to the requirements of the provisions of Sections 45 and 73 of the Indian Evidence Act, 1872.

19. Further more, the Additional Collector while considering the application under Section 35 (3-B) of the Act of 1958 cannot be said to be "Court" for the purposes of Section 73 of the Indian Evidence Act, 1872. The Act of 1958 does not give the Additional Collector the powers of the Court. While considering the application under Section 35 (3-B) of the Act of 1958, the Additional Collector does not have trappings of the Court. The learned Additional Collector could not have passed the impugned order relying on the comparison of the signature of the respondent nos. 5 and 6.

20. The learned Advocate for the respondent no.4 has submitted that the Additional Collector had no other option to take decision after the comparison of the signatures of the respondent nos. 5 and 6, in view of the order passed by this Court in Writ Petition No. 5407/2012. The submission as made is misconceived. The directions given by this Court while deciding the Writ Petition No.5407/2012 cannot be construed in the manner in which the respondent no.4 is construing. It cannot be said that this Court directed the Additional Collector to take the decision only on the basis of the comparison of the signatures of respondent nos. 5 and 6, without considering the other material and the evidence on the record.

21. Few relevant facts are required to be stated:-

The respondent nos. 5, 6 and 7 have not made any specific statement before the Additional Collector that they were not having knowledge of the special meeting in which Resolution of no confidence is passed against the respondent no.4. The news that the special meeting for considering the no confidence motion against the respondent no.4 would be held on 27th August, 2012 was published in the daily "Sakal", "Dainik Matrubhumi" and one more Marathi newspaper having circulation in the village. Considering these facts, along with evidence of six persons, it cannot be said that the respondent nos. 5 and 6 were not having the knowledge of the special meeting in which the no confidence motion is passed.

22. The learned Advocate for the petitioners has submitted that 12 members out of 15 members of Village Panchayat have voted in favour of the Resolution of no confidence motion against the respondent no.4. 11 members of the Village Panchayat have filed the present writ petition. Considering these facts and the failure on the part of the respondent no.4 to point out violation of any mandatory provisions of law, in my view, the order passed by the learned Additional Collector quashing the Resolution of no confidence motion passed against the respondent no.4 is not proper and cannot be up-held.

23. The submissions made on behalf of the respondent no.4 that the writ petition need not be entertained as the petitioners ought to have filed appeal under Section 35 (3-C) of the Act of 1958, is an argument of frustration. This Court by order dated 30th January, 2013 had issued notice to the respondents. The writ petition was listed on several dates, however, no such objection was raised on behalf of the respondents. While issuing notice on 30th January, 2013, this Court had directed the parties to maintain status quo pursuant to which the respondent no.4 continue to enjoy the office. It appears that the respondent no.4 has taken advantage of the interim order and the pendency of this writ petition and after more than 18 months when the writ petition is taken up for final hearing this objection is being raised. In these circumstances, the submissions as made on behalf of the respondent no.4 cannot be accepted. Moreover, the writ petition raises issue relating to interpretation of the Rules made by the State Government under the Act of 1958. For this reason also the submission as raised on behalf of the respondent no.4 is not accepted and the petition is decided on merits.

24. In view of the above, the writ petition is allowed. The order passed by the Additional Collector in Case No. 6/2012-13 BVP Act-1958 under Section 35 (3-B) dated 23.1.2013 is set aside and the application filed by the respondent no.4 under Section 35 (3-B) of the Act of 1958 is dismissed.

Rule is made absolute in the aforesaid terms. In the circumstances, the parties to bear their own costs.

25. At this stage, Shri A.B. Mirza, the learned Advocate for the respondent no.4, prays that the interim order directing the parties to maintain status quo, granted by this Court during the pendency of the writ petition may be continued for a period of four weeks. Shri Chopde, the learned Advocate for the petitioners, has opposed the request as made by the petitioners.

26. Considering the facts of the case, specially that the respondent no.4 has continued in the office only on the basis of technical objection raised by the respondents, which are found to be unsustainable in law, the prayer made by the respondent no.4 for continuation of interim order is rejected.

Petition allowed.