M.P.KANADE, J. - (1.) By this writ petition under Article 226 of the Constitution of India, the petitioners have challenged the legality and correctness of the order passed by the learned Collector, Osmanabad, dated June 28, 1979. By the said impugned orders, the learned Collector, Osmanabad, has suspended petitioner No. 1 from the office of the Sarpanch and petitioner No. 2 from the office of Upa-Sarpanch of Gram Panchayat, village Deolali, District Osmanabad.
(2.) Elections to the panchayat were held in the village on March 22, 1979. The petitioners and their party members got elected defeating the candidates of the other political party. Again elections were held to the posts of Sarpanch and Upa-Sarpanch on April 9, 1979. In the said elections petitioners Nos. 1 and 2 were elected to the posts of Sarpanch and Upa-Sarpanch, respectively. It appears that the rival candidates who were defeated in the elections were not pleased and, therefore, they tried to create obstacles in the way of the petitioners to take charge of the Gram Panchayat of the said village. It is contended by the petitioners that they received from the rival candidates a letter on April 18, 1979 threatening them to resign and on failure, to meet the consequences. It is further contended by the petitioners that they filed a complaint with the police on April 20, 1979, but the police did not take any steps against the accused persons. There was an assault on the petitioners on April 22, 1979. They had been to the Police Station to lodge a complaint. While returning, they were again assaulted by the rival candidates and their supporters. For the incident dated April 22, 1979, it appears that a crime was registered at Osmanabad Police Station bearing Crime No. 65 of 1979 against the petitioners under sections 147, 148, 149, 323, 324, 325, 336 and 337 of the Indian Penal Code. The petitioners contended that they were not guilty of the offence charged against them, but they had been falsely and maliciously involved in the said case with an ulterior motive to create a ground for their suspension from the posts of Sarpanch and Upa-sarpanch. It appears that by a police report dated May 25, 1979, the Collector of Osmanabad was informed about the institution of the said criminal case against the petitioners. On receipt of the said police report the learned Collector, Osmanabad, by the impugned orders both dated June 28, 1979, while exercising his power under section 41(1) of the Bombay Village Panchayats Act, 1958 (hereinafter referred to as "the Act") suspended the petitioners from the office held by them in the Gram Panchayat of Village Deolali. The legality and correctness of the said impugned orders are challenged in this writ petition.
(3.) Mr. N.P. Chapalgaonkar, learned Counsel appearing in support of the petition, raised two or three points. It is submitted by Mr. Chapalgaonkar that section 41(1) of the Act vests a discretion in the Collector to exercise or not to exercise the power given by the said section. Such a discretion entails in its operation the applicability of mind to the facts of the case and the nature of the criminal case instituted against the persons. It is further argued by Mr. Chapalgaonkar that the learned Collector without an application of mind to the facts of the case mechanically passed an order of suspension and thereby illegally exercised his discretion vested in him.;