Bombay High Court
Ashabai W/O Laxman Gawande vs Additional Commissioner, Amravati ... on 18 January, 2005
Equivalent citations: 2005(4)BOMCR335, 2005(3)MHLJ183
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari
JUDGMENT B.P. Dharmadhikari, J.
1. By this petition under Articles 226 and 227 of Constitution of India the petitioner, a Sarpanch of Gram Panchayat, Dapura questions the order dated 5th January, 2004 passed by Additional Commissioner Amravati Division, Amravati holding that she has incurred disqualification under Section 14(1)(g) read with the Section 16(2) of Bombay Village Panchayat Act, 1958 (hereinafter referred to as "The Act"). The Additional Commissioner has set aside the order dated 29th October, 2003 passed by Additional Collector, Akola in favour of petitioner. Proceedings before the Collector were initiated by present respondent No. 2 Vasantrao. It is the contention of petitioner that respondent No. 2 had initially tried to unseat her through his wife who contested the election unsuccessfully against her.
2. Respondent No. 2 filed application in July, 2003 under Section 14(1)(g) of the Act before Additional Collector, Akola pointing out that the petitioner has obtained advantage of a scheme for construction of houses for poor people and got construction of house under said scheme sanctioned in favour of her husband Laxman. He further asserted that Secretary of Gram Panchayat gave the opinion that as petitioner was having a house in the village, she was not eligible to take advantage of the scheme. It is the case of respondent No. 2 that 15% of the amount required for construction is given by the Gram Panchayat. The application was opposed by present petitioner who was non-applicant No. 1 before the Additional Collector. She pointed out that the name of her husband was appearing in the list of below poverty line candidates since long and under the scheme he was eligible for constructed house. She had stated that her husband is not having any house for residence in the village and as per the scheme known as the "Gharkool Yojana" or "Indira Awas Yojana" of Central Government and State Government, he has deposited 15% of the amount with the authority and remaining 85% is granted by the said authority. With this amount her husband Laxman has constructed house on his own field and he has not taken any benefit from Gram Panchayat. It is her contention that Gram Panchayat only proposed name of Laxman as beneficiary but Gram Panchayat is not implementing the said scheme. She has also pointed out that respondent No. 2 filed criminal complaint against her and against other members of Gram Panchayat and proceedings under Section 14(1)(g) have been filed only to harass her. It appears that the Additional Collector has taken a view in favour of petitioner. However, copy of said order is not annexed with the petition. What is annexed is order of said authority passed on same date in another matter filed by present respondent No. 2 against Up-Sarpanch Shri Devidas Dongre. Respondent No. 2 thereafter filed appeal under Section 16(2) before Additional Commissioner, Amravati Division, Amravati, who has allowed the same. Challenge in present petition is to this order of the Additional Commissioner. Respondent No. 2 has filed his reply before this Court in support of order of Additional Commissioner and has further proceeded to place on record documents to show that husband of petitioner already has a house in village and he also holds agricultural lands and is not eligible for benefit of the scheme. However, the petitioner has filed counter affidavit denying these facts. The Additional Commissioner i.e. respondent No. 1 has also filed reply denying the contentions in writ petition.
3. Advocate Mardikar appearing for the petitioner contends that the order passed by Additional Commissioner in appeal considers totally different case which is not pleaded by respondent No. 2 and hence said order is unsustainable. He further asserts that the name of husband of petitioner was already included in list of below poverty line persons since 1997-98 when petitioner was not even concerned with Gram Panchayat. He points out that the subsequent election of petitioner as a Sarpanch has got no bearing on this list and on entitlement of her husband to assistance and benefit of housing Scheme. He contends that the original case pleaded was that Laxman was not eligible for getting house under the scheme and the Additional Commissioner has in appeal examined the issue of validity of Gramsabha. He contends that disqualification is a serious issue and pleadings must be construed strictly and Additional Commissioner should have looked into the mala fides of respondent No. 2 in the matter and should have found that no disqualification under Section 14(1)(g) was incurred by petitioner and no such case is even remotely pleaded by respondent No. 2.
4. Advocate Borkar appearing for respondent No. 2 and learned AGP appearing for respondent No. 1 have justified the impugned order. Both the advocates have stated that the petitioner is proved to have interest in the work done as per the order of Gram Panchayat and the resolution of Gramsabha has the effect of selecting her husband as beneficiary. It is their argument that the petitioner being wife is bound to stay with her husband Laxaman and if Laxman is getting new house, petitioner is also benefited thereby. The work of construction of house for Laxman is done with funds provided by Central Government and State Government and the work is done because Gram Panchayat has selected Laxman as beneficiary. It is their contention that interest of petitioner in her husband is sufficient to disqualify her and issue of eligibility of said Laxman is totally irrelevant for this purpose. Both the advocates therefore seek dismissal of the writ petition.
5. The relevant provision in the Act regarding disqualification read as under :--
"14. No person shall be a member of panchayat or continue as such, who --(g) has directly or indirectly, by himself on his partner, any share or interest in any work done by order of panchayat, or in any contract with, by or on behalf of, or employment with or under, the panchayat;"
Section 16 provides for resolution of dispute about such disqualification by Collector and Sub-section (2) thereof provides for an appeal to the State Government. These powers of State Government are exercised by Additional Commissioner.
6. Somewhat similar provision has been considered by the Hon'ble Apex Court in judgment reported at 1966 Mh.L.J. (SC) 269 = AIR 1966 SC 1339, Gulam Yasinkhan v. Sahebrao Yashwantrao Walaskar and it has been observed that :--
"Section 15 by Clause (1) provides that no person shall be eligible for election, selection or nomination as a member of a committee, if such person had directly or indirectly any share or interest in any contract with, by or on behalf of the committee, while owning such share or interest.
7. The question which we have to consider is whether by virtue of his relationship with Khalidad Khan, the appellant can be said to have any indirect share or interest in the employment of Khalidad Khan with the Municipal Committee. We are assuming for the purpose of dealing with this point that the contract to which Clause (1) refers, includes employment, though unlike other similar statutes, the word "employment" is not specifically mentioned in the said clause. In order to incur disqualification, what the clause requires is "interest or share in any contract": it may either be a share or an interest; and if it is an interest the interest may be direct or indirect. But it is plain that the interest to which the clause refers, cannot mean mere sentimental or friendly interest. It must mean interest which is pecuniary, or material or of a similar nature. If the interest is of this latter category, it would suffice to incur disqualification even if it is indirect. But it is noticeable that the clause also requires that the person who incurs disqualification by such interest must "own such share or interest". It is not easy to determine the scope of the limitation introduced by this last sub-clause. Mr. Gauba for respondent No. 1 urged that the clause "owning such share or interest" is tautologus when it refers to direct interest or share, and is meaningless when it refers to indirect share or interest, Prima facie, there is some force in this connection; but whatever may be the exact denotation of this clause, it does serve the purpose of limiting the character of the share or interest which incurs disqualification prescribed by the clause and it would not be easy to ignore the existence of the last portion of the clause altogether.
8. It is quite true that the purpose and the object of prescribing the several disqualifications enumerated in Clauses (a) to (1) of Section 15 of the Act is to ensure the purity of the administration of Municipal Committees, and in that sense, it may be permissible to hold that the different clauses enumerated in Section 15 should not receive an unduly narrow or restricted construction. But even if we were to adopt a liberal construction of Section 15(1), we cannot escape the conclusion that the interest or share has to be in the contract itself. When we are enquiring as to whether the appellant is interested directly or indirectly in the employment of his son, we cannot overlook the fact that the enquiry is not as to whether the appellant is interested in the son, but the enquiry is whether the appellant is interested in the employment of the son. The distinction between the two enquiries may appear to be subtle, but, nevertheless, for the purpose of construing the clause, it is very relevant. Considered from this point of view, on the facts proved in this case, we find it difficult to hold that by mere relationship with his son, the appellant can be said to be either directly or indirectly interested in his employment"
This judgment considers a provision which is narrow in its sweep as compared to the provisions contained in Section 14(1)(g) of The Act. Section 14(1)(g) contains the clause about employment and also about interest in any work done as per the order of Gram Panchayat and it also does not contain any rider requiring ownership of such interest. This clause also cannot receive narrow or restricted construction and interest of petitioner in the house constructed for her husband under the scheme is definitely an interest which is of "latter category" as envisaged by the Hon'ble Apex Court. The subject-matter of interest namely a residential house clearly distinguishes the facts in present case and by her mere relationship, petitioner has direct interest in the work of construction of said house done as per the resolution of Gram Panchayat.
7. Similarly, the Rajasthan High Court in judgment reported at AIR 2000 Rajasthan page 371, Chimna Ram v. State of Rajashtan has observed :--
"(xii) who, save as hereinafter provided, has directly or indirectly by himself or his partner, employer or employee, any share or interest in any work done by order of such board or in any contract or employment with or under or by or on behalf of such board.
Be that as it may, Clause (xii) of Section 26 of The Act refers to interest of a Member directly or indirectly in a work done by himself or his partner, employer or employee. The legislature, in its wisdom, has not provided for the interest of any other person and if it had omitted the interest of other family members, I am at complete loss to understand as how the petitioner has been dragged where there might have been some interest or financial gain in favour of his brother. There was no charge against the petitioner that he had directly or indirectly gained any financial interest, share etc. in the work done even if any, by his brother. In fact, there had been no charge against the petitioner connecting him with the disqualification which could have been incurred under the provisions of Clause (xii) of Section 26 and in absence of any charge in this regard, it is strange that petitioner has been declared disqualified. The entire inquiry was misdirected, misconceived and without any charge relating to the provisions of Clause (xii) of Section 26 of The Act. Clause (xii) has to be given a literal, plain and simple meaning and it provides that the member, directly or indirectly, must have some share or interest in the work done by himself, his partner, employer or employee. There is no dispute to the fact that Jawari Lal Tak is the real brother of the petitioner, but he does not qualify either of these four terms used by the legislature and there is no direct or indirect evidence that petitioner had gained something directly or indirectly out of these contracts. White construing a statutory provision, it is not permissible for the Court to add to or subs tract from it. (Vide Shyam Kishori Devi v. Patna Municipal Corporation, AIR 1996 SC 1678)."
The Rajasthan High Court has thereafter considered the case of Gulam Yasin Khan v. Sahebrao Yeshwantrao Walaskar, 1966 Mh.L.J. (SC) 269 = AIR 1966 SC 1339 (supra) particularly paragraphs 7, 8 and 12 thereof and thereafter in paragraph 16 proceeds as under :--
"16. In case a contract is entered into by a partnership firm, all the partners have an interest jointly and one of the partners, if holds the post, may incur disqualification. (Vide Konappa Rudrappa Nadgouda v. Vishwanth Reddy, AIR 1969 SC 447). In the instant case, there is no allegation nor is there any whisper that the petitioner was having any partnership with his brother Jawari Lal Tak."
8. In Rustamji Nasarvanji Dangor v. Jeram Kunverji Ganatra, AIR 1977 SC 82, the Hon'ble Supreme Court was confronted with a similar issue of incurring disqualification under the provisions of Gujarat Municipalities Act, 1964, wherein the appellant therein had been declared disqualified on the ground that his application for allotment of a land had been allowed by the Chief Officer. The Hon'ble Supreme Court quashed the said order by observing as under :
"The legality of the Chief Officer's order is not, however, an issue in this case and the question whether or not the intended use of plot by the appellant was beyond the scope of bye-law (4) need not detain us. According to the High Court, it was only because the appellant held the office of the President of the Municipality that the Chief Officer allowed his application. This may or may not be true, but it is not a matter relevant to the real question that arises for consideration in this case. Section 38(1)(b)(i) disables a Councillor to continue as such if he acts as a Councillor in the matter of allotment of any land to himself.............. There is nothing on the record in this case to show that the appellant had acted as a Councillor to have the plot allotted to himself. Even if the Chief Officer was influenced by the fact that applicant before him was the President of the Municipality, that would not to attract Section 38(1)(b)(i). It is true that Section 45 confers a general power of supervision and control on the President over the acts of all officers of the Municipality and Section 49, which enumerates the powers and duties of the Chief Officer, also makes him subject to general control of the President in the discharge of its powers, but the general power of supervision conferred on the President, does not, in our opinion, imply that in every case where he applies for lease which he is entitled to do as Section 11(3)(A)(i) indicates, he should be deemed to have acted within the meaning of Section 38(1)(b)....... In view of the clear provisions of Section 38(1)(b)(i), we do not find it possible to support the impugned judgment".
9. A similar view has been reiterated under the provisions of Companies Act in Needle industries (India) Ltd. v. Needle Industries Newey (India) Holdings Ltd., AIR 1981 SC 1298.
10. In Firoz Jal Moti Shaw v. Jagdish Prasad, 1975 Raj LW 15, Rajasthan High Court has dealt with a similar issue regarding incurring disqualification under Clause (xii) of Section 26 of The Act. It made a comparative study of analogous provisions under the Acts of different States, i.e. the Court considered the provisions of Bengal Municipalities Act, 1942, Bombay Municipality Borough's Act 1925, and also the Municipality Corporation Act of 1882. After placing reliance upon the judgments in Cox v. Truscott, (1907) 92 LT 650; England v. Inglis, (1920) 2 KB 636; Rammayya Venkat Narsu Bum v. State of Bombay, AIR 1960 Bom 46; and Promodelal Moitra v. Addl. District Magistrate, AIR 1957 Cal 164 the Court reached the conclusion that interest, referred to in Clause (xii) of Section 26 of the Act must be directly in terms of the contract itself and it cannot be merely sympathy or sentimental interest.
"Mr. Rajendra Vyas, learned Additional Government Advocate, had been fair enough to produce the original record of Judicial Inquiry as well as of the case before the Court and I have gone through it. There is no iota of evidence to show any interest, directly or indirectly of the petitioner in those alleged contracts. The record consists mostly the complaints of persons representing the political parties to the Authorities that petitioner was favouring his brother. More so, it contains large number of documents containing allegations of making bogus allotments illegally in favour of some persons or regularisation of such allotments. More so, large number of complaints regarding filling-up the vacancies of Sweepers and some dispute regarding the compromise reached in the Court in case of one Smt. Sarla Devi in respect of some property but that can have no bearing on the instant case. Of course, certain documents are on record which show that some payments had been made in favour of the brother of the petitioner but if he had worked, he should have been entitled to receive the amount and he has received it. The record of the Municipal Board contains the document dated 26-3-1996, which shows that not a single tender had been received in pursuance of the tender-inviting-notice upto 26-3-1996 and direction was sought by the Executive Officer from the petitioner and on that petitioner issued a direction to extend the date but that also does not involve the petitioner in the real controversy of incurring disqualifications under Clause (xii) of Section 26 of The Act".
Thus this ruling is also different on facts and the case considered is of a brother who was found to be eligible and was given the work. It was not the case of wife and husband. There was no evidence to show any interest of Chairman cither direct or indirect in said contract of brother or work done by said brother by the order of board before the Rajasthan High Court. Such an evidence is not necessary when the work done is construction of residential house for husband and the person to be shown interested is wife like present petitioner. This ruling therefore has no application to the case of petitioner. On the contrary, it supports the view expressed by Additional Commissioner in impugned order.
11. Bare perusal of application made by respondent No. 2 before Additional Collector reveals that grievance made is that petitioner cannot take benefit of scheme for herself. It is further mentioned that the authorities have extended benefit of scheme to husband of petitioner because of her influence. It also mentions about the opinion given by Secretary of Gram Panchayat and also about financial benefit to the beneficiary. In prayer clause and also in its body (paragraph 2) it mentions disqualification under Section 14(1)(g) of the Act. Petitioner has given her reply after fully understanding the case against her. Additional Commissioner has found that petitioner has direct interest in the work of construction of house done through the Panchayat. He has found that agency to select beneficiary is Panchayat and Gramsabha is supreme in the matter. He has therefore held that petitioner is disqualified under Section 14(1)(g) read with Section 16(2) of Bombay Village Panchayats Act, 1958. This finding is sufficient to sustain said order. The other discussion by Additional Commissioner about legality or otherwise of Gramsabha held on 2nd October, 2002 or misuse of her office by petitioner while selecting her husband as beneficiary do not really have any bearing on the issue of disqualification as answered by him and eligibility of her husband for claiming benefit under the scheme is also not relevant. The grievance of respondent No. 2 in reply affidavit that husband of petitioner already has house in the village or has agricultural land are disputed question on facts and also not germane here. Same holds good even for allegations of mala fides made by petitioner against said respondent. The Gram Panchayat selects beneficiary who contributes 15% of cost of construction and house is constructed for him by government agency by spending balance 85% through government funds. Thus, petitioner has got material interest in construction of house of her husband and said construction is being done as per order/resolution of Gram Panchayat selecting him as beneficiary. She has interest in the work done as per the order of Gram Panchayat and hence she has incurred disqualification. The petitioner has been given due notice and opportunity by respondent No. 2 and also by Additional Commissioner. There is no breach of principles of natural justice and Additional Commissioner has not considered any new case. No jurisdictional error or any apparent mistake is demonstrated by the petitioner before this Court. There is no merit in the petition. Hence, the same is dismissed with no order as to costs.
At this stage, Shri Mardikar, Adv. for the petitioner seeks continuation of interim order for the period of two weeks so as to enable him to take appropriate steps.
Shri Borkar, Adv. for respondent No. 2 opposes this request.
However, in the interest of justice, the request is granted. The direction not to hold election, which is in operation during pendency of the petition, shall continue to operate for a further period of two weeks.