Bombay High Court
Prafulla Narhari Barabde vs State Of Maharashtra Thr. Secretary, ... on 4 May, 2018
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.6368 OF 2017
PETITIONER: Prafulla Narhari Barabde
Aged about 35 years,
Occupation - Agriculturist,
R/o Bramhanwada, Post Kokarda,
Tah. Anjangaon Surji,
District Amravati
-VERSUS-
RESPONDENT: 1. State of Maharashtra,
through its Secretary,
Department of Rural Development,
Mantralaya, Mumbai - 32.
2. Commissioner,
Amravati Division, Amravati
3. Dadarao Tulsiram Khandare,
Aged major, R/o Kokarde,
Tah. Anjangaon Surji, Dist. Amravati.
4.The Secretary, Gram Panchayat,
Kokarda, Tah. Anjangaon Surji,
District Amravati.
Mr. A. C. Dharmadhikari, Advocate for the petitioner.
Mrs. S. Gaikee, Asst. Government Pleader for R. Nos.1 and 2
Ms. Bhagyashali Bagde, Advocate for respondent no.3.
CORAM: A.S. CHANDURKAR, J.
DATED: 04-05-2018.
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ORAL JUDGMENT :
1. Rule. Heard finally with consent of Counsel for the parties.
2. The petitioner is aggrieved by the order dated 18-8- 2017 passed by the respondent No.1 thereby allowing the appeal preferred by the respondent No.3 and setting aside the order of disqualification passed by the respondent No.2 on 9-6-2017.
3. The facts in brief are that the general elections for Gram Panchayat, Kokarda were held on 22-4-2015. The respondent No.3 was elected as a Sarpanch on 9-5-2015. According to the petitioner, the respondent No.3 despite not being legally entitled, he had obtained monetary benefit under the Shrawanbal Scheme of the State Government. According to that scheme, the beneficiaries ought to be senior citizens while the respondent No.3 was aged about 51 years. Despite that, benefit was taken for a period of almost two years including the period after being elected as a Sarpanch. On that count, the petitioner filed proceedings under Section 39(1) of the Maharashtra Village Panchayats Act, 1958 (for short, the said Act). The respondent No.3 filed his reply and opposed the said application. It was ::: Uploaded on - 10/05/2018 ::: Downloaded on - 11/05/2018 00:56:40 ::: WP6368.17.odt 3/12 denied that any such monetary benefit was obtained by the respondent No.3. According to the respondent no.3, he had applied for benefit under the Sanjay Gandhi Scheme and the same was accordingly granted. A report was called from the Chief Executive Officer and such report dated 25-10-2016 was submitted to the Divisional Commissioner. As per that report, it was stated that the respondent No.3 had mistakenly received amount of Rs.600/- per month under the said scheme. Further steps had been taken to recover that amount which was paid and the dues were to the extent of Rs.15,000/-. It was opined that it could not be said that the respondent no.3 had misused his position as a Sarpanch. The Divisional Commissioner by order dated 9-6-2017 held that the respondent No.3 had received benefit under the said scheme from November, 2013 till November, 2015. The respondent no.3 could not submit relevant documents even under the Sanjay Gandhi Scheme which according to him was the scheme under which he received the benefits. Accordingly, the Divisional Commissioner disqualified the respondent No.3 from the post of Sarpanch.
4. Being aggrieved, the respondent No.3 filed an appeal under Section 39(3) of the said Act. The appellate Authority after ::: Uploaded on - 10/05/2018 ::: Downloaded on - 11/05/2018 00:56:40 ::: WP6368.17.odt 4/12 considering the entire records came to a conclusion that as per the report of the Chief Executive Officer, the amounts in question were wrongly paid to the respondent no.3. He had not misused his position as Sarpanch and on that ground the appeal filed by the respondent No.3 was allowed. The order of disqualification was set aside. Being aggrieved, the said order is challenged in the present writ petition.
5. It is submitted by the learned Counsel for the petitioner that in terms of the provisions of Section 39 of the said Act, a Sarpanch is liable to be removed from office if he is found guilty of any disgraceful conduct or for a misconduct in the discharge of duties. It is submitted that admittedly the respondent no.3 received monetary benefits under the Shrawanbal Scheme for the period from November, 2013 till November, 2015. The report of the Chief Executive Officer indicated that despite being called upon to return back the amount so paid, the respondent no.3 did not do so. Ultimately, a charge was required to be levied on the agricultural land of the respondent No.3. The justification sought to be given by the respondent No.3 that the amount that was received by the respondent No.3 was under the Sanjay Gandhi Scheme was also not substantiated. Placing reliance on the ::: Uploaded on - 10/05/2018 ::: Downloaded on - 11/05/2018 00:56:40 ::: WP6368.17.odt 5/12 decisions in Ravi Yashwant Bhoir .vs. District Collector, Raigad and others, reported in (2012) 4 SCC 407, Anishbhai Ishabhai Patel .vs. State of Gujarat and others, reported in AIR 1995 Gujarat 118 and judgment of the Full Bench of the Gujarat High Court in Mushtaq Ahmed Hasanbhai Mansuri .vs. V. C. Trivedi and another, reported in AIR 2003 Gujarat 214, it was submitted that the conduct of the respondent No.3 was of such nature which could be termed as disgraceful and not suitable for the post of Sarpanch. The learned Counsel also referred to the meaning of the expression "disgraceful" as per P.R.Aiyar's Law Lexicon. It was then submitted that the Divisional Commissioner has rightly found the conduct of the respondent No. 3 to be disgraceful. This order was set aside without any justifiable cause and on that ground interference in writ jurisdiction was called for.
6. The learned Counsel for the respondent No.3 supported the impugned order. According to her, the amounts in question were erroneously paid to the respondent No.3 and the respondent No.3 was not responsible for any such conduct as alleged. As the respondent No. 3 was suffering from hearing disability he had sought benefit under the Sanjay Gandhi Scheme and all necessary papers had been submitted in that regard. The ::: Uploaded on - 10/05/2018 ::: Downloaded on - 11/05/2018 00:56:40 ::: WP6368.17.odt 6/12 respondent no.3 was wrongly granted benefit under the Shrawanbal Scheme. It was only on account of the political rivalry that the petitioner had initiated the aforesaid proceedings. The conduct of the respondent No.3 not being deliberate, it could not be said that he was liable to be removed under the provisions of Section 39(1) of the said Act. It was thus submitted that the Appellate Authority rightly set aside the disqualification and there was no case to interfere in writ jurisdiction. The learned Counsel also relied upon the documents filed along with the reply. It was however not disputed that a charge of Rs.15000/- on the lands owned by the respondent No.3 had been levied for recovery of that amount.
The learned Assistant Government Pleader appeared for respondent Nos. 1 and 2.
7. I have heard the learned counsel for the parties at length and I have given due consideration to their respective submissions.
8. From the record, the following aspects are evident and not in dispute. The respondent no.3 was elected as Sarpanch in April, 2015. When he was so elected, he was aged about 50 years. ::: Uploaded on - 10/05/2018 ::: Downloaded on - 11/05/2018 00:56:40 ::: WP6368.17.odt 7/12 He received total amount of Rs.15,000/- for the period from November, 2013 to November, 2015 under the Shrawanbal Scheme and this amount was credited in his bank account. The amount received per month was Rs.600/-. On 16.1.2016, the Naib Tahsildar had issued notice to the respondent no.3 to refund the amount of Rs.15,000/-, which he had received by way of special assistance under the Shrawanbal scheme. Another reminder was issued on 03.3.2016. Ultimately, on 30.4.2016 a charge was levied on the agricultural lands of the respondent no.3. An enquiry was held by the Chief Executive Officer in the said matter in which the aforesaid facts were reiterated. Similarly, the Divisional Commissioner in his order dated 09.6.2017 has recorded a finding that the respondent no.3 despite being called upon to submit relevant documents, could not produce any acknowledgement to indicate that he had made an application for getting the benefit under the Sanjay Gandhi Scheme. Similarly, no documents/records relating to the respondent no.3 were available with the Naib Tahsildar pertaining to the Shrawanbal Scheme.
The aforesaid aspects are not in dispute and the proceedings would have to be adjudicated in the light of the aforesaid facts.
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9. As per the provisions of Section 39(1)(i) of the said Act, any Sarpanch who is guilty of misconduct in the discharge of his duties or of any disgraceful conduct or of neglect or incapacity to perform his duty, can be removed from office by the Commissioner. In the present case, the question is with regard to the conduct of the respondent no.3 in deriving financial benefit of Rs.15,000/- for a period of 25 months from a State sponsored Scheme and not being able to justify the Scheme under which he had received that benefit coupled with failure to repay back the amounts so received to which he was not entitled. Since the provisions of Section 39(1)(i) of the said Act refer to any "disgraceful conduct", such conduct need not necessarily be with regard to discharge of duties as Sarpanch. It would relate to the overall conduct of the Sarpanch. This position is settled in the light of observations in paragraph 20 of the judgment of the Hon'ble Supreme Court in Ravi Yashwant Bhoir (supra) in relation to the provisions of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965. Paragraph 20 of the said decision reads thus -
"The expression "disgraceful conduct" is not defined in the statute. Therefore, the same has to be understood in given dictionary meaning. The term "disgrace" signifies loss of honour, respect or reputation, shame or bring disfavour or discredit. "Disgraceful" means giving offence to moral ::: Uploaded on - 10/05/2018 ::: Downloaded on - 11/05/2018 00:56:40 ::: WP6368.17.odt 9/12 sensibilities and injurious to reputation or conduct or character deserving or bringing disgrace or shame. Disgraceful conduct is also to be examined from the context in which the term has been employed under the statute. Disgraceful conduct need not necessarily be connected with the official (sic duties) of the office-bearer. Therefore, it may be outside the ambit of discharge of his official duty."
Similar view was taken earlier in Anishbhai Ishabhai Patel (supra) as well as by the Full Bench of the Gujarat High Court in Mushtaq Ahmed Hasanbhai Mansuri (supra). The term "disgraceful conduct" has not been defined in the said Act. The aforesaid analogy, therefore, can be applied while considering said term. It is thus clear that the conduct of the respondent no.3 for the period from November, 2013, which is prior to his election as Sarpanch, till November, 2015 which is after his election can be taken into consideration for determining as to whether the said conduct is disgraceful or not.
10. According to the respondent no.3, he had never applied for receiving benefit under the Shrawanbal scheme. The amount of Rs.600/- per month was credited in his account without his knowledge. This stand of the respondent no.3 cannot be accepted in view of his conduct of not protesting in any manner whatsoever despite being called upon to refund the amount of ::: Uploaded on - 10/05/2018 ::: Downloaded on - 11/05/2018 00:56:40 ::: WP6368.17.odt 10/12 Rs.15,000/- received by him. It would have been a different matter if the respondent no.3 would have challenged such demand or he would have protested against the charge being levied upon his agricultural lands for recovery of those amounts. On the contrary, despite two notices issued to him by the Naib Tahsildar, he failed to respond to the same. The respondent no.3 further could not produce any document to show that he had applied for benefit under the Sanjay Gandhi scheme and inadvertently he was granted benefit under the Shrawanbal scheme. The Divisional Commissioner has rightly appreciated this aspect of the matter and has proceeded to disqualify the respondent no.3.
11. In the enquiry report submitted by the Chief Executive Officer, after noticing the factual aspects it has been opined that there was no deliberate attempt on the part of the respondent no.3 in receiving the aforesaid benefits and it was likely that the amount in question was received inadvertently. There is no basis whatsoever for raising such an inference nor has a single document been produced by the respondent no.3 to enable such conclusion to be drawn. The conduct of the respondent no.3 speaks otherwise and it would merely be a surmise to conclude that it was likely that he received the said benefits inadvertently. ::: Uploaded on - 10/05/2018 ::: Downloaded on - 11/05/2018 00:56:40 ::: WP6368.17.odt 11/12
12. The Hon'ble State Minister, while deciding the appeal preferred by the respondent no.3, gave importance to the benefits being received prior to being elected as Sarpanch. This is factually incorrect as even after being elected as Sarpanch in April, 2015, the respondent no.3 continued to receive benefits under the scheme till November, 2015. There is also no basis to conclude that this benefit was wrongly sanctioned in favour of respondent no.3 and therefore, he was not liable to be disqualified. There is no factual or legal basis to sustain the order passed in appeal. There was no reason whatsoever to reverse the order passed by the Divisional Commissioner.
13. It is thus clear that in the light of undisputed facts that the respondent no.3 received financial assistance of Rs.600/- per month for about 25 months for the period from November, 2013 to November, 2015 without being entitled for the same. Besides failure to justify such entitlement on being called upon to do so and his refusal to refund that amount when demanded, amounts to disgraceful conduct and makes him liable for being disqualified. His conduct cannot be said to be justifiable in any manner whatsoever and it, in fact, brings discredit to him. The Divisional ::: Uploaded on - 10/05/2018 ::: Downloaded on - 11/05/2018 00:56:40 ::: WP6368.17.odt 12/12 Commissioner, therefore, rightly disqualified the respondent no.3. This well reasoned order was interfered with by the Appellate Authority without any justifiable reason. The appellate order is, therefore, liable to be set aside.
14. Accordingly, the following order is passed -
1] The order dated 18-8-2017 passed by the respondent No.1 in proceedings under Section 39(3) of the said Act is quashed and set aside.
2] The order dated 09-6-2017 passed by the respondent No.2 disqualifying the respondent no.3 under Section 39(1)(i) of the said Act, stands restored.
3] The writ petition is accordingly allowed. Rule is made absolute in aforesaid terms with no order as to costs.
JUDGE /MULEY/Diwale/ ::: Uploaded on - 10/05/2018 ::: Downloaded on - 11/05/2018 00:56:40 :::