Bombay High Court
Sunil Daulat Patil vs The State Of Maharashtra on 4 December, 2013
Author: S. S. Shinde
Bench: S. S. Shinde
1 W.P.3419.13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 3419 OF 2013
Sunil Daulat Patil,
Age 35 yrs. Occu. Agri.,
R/o at/post Tambole,
Tq. Chalisgaon,
District Jalgaon. ...PETITIONER
VERSUS
1. The State of Maharashtra,
Through Secretary of
Home Department, Mantralaya,
Mumbai -32.
2. The Divisional Commissioner,
Nashik Division, Nashik.
3. The Additional Collector,
Jalgaon, District Jalgaon.
4. The Zilla Parishad, Jalgaon,
Dist. Jalgaon,
Through Chief Executive Officer,
(Deleted as per leave granted
by this Court on 22.04.2013)
5. Digambar Bhagwan Kumawat,
Age 40 yrs. Occu. Business.
R/o At/Post. Tambole((Bk)
Tq. Chalisgaon,
Dist. Jalgaon ...RESPONDENTS
...
Shri S.P. Brhame, Advocate for Petitioner
Shri S.D. Kaldate, AGP for respondent Nos. 1 to 3
Shri P.B. Patil, Advocate for Respondent No. 5
...
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2 W.P.3419.13
CORAM: S. S. SHINDE, J.
Date of Reserving : 28.11.2013
the Judgment
Date of Pronouncing:04.12.2013
the Judgment
JUDGMENT :
1. Rule. Rule made returnable forthwith. By consent heard finally.
2. The relevant facts, leading to file present petition as disclosed in this writ petition are as under:
. The petitioner herein was elected as Sarpanch of Tambole Grampanchayat. It is his case that he has discharged the duties honestly and effectively. He conducted Gramsabha, Special meetings and Women Gramsabha in time and as per the requirement of law.
. Respondent No. 5 herein is political rival of the petitioner, who initiated the proceedings of disqualification before two different authorities i.e. respondent No. 2 under Section 39(1) of the Bombay Village Panchayats Act, 1948 (Hereinafter ::: Downloaded on - 23/12/2013 20:32:25 :::
3 W.P.3419.13 referred to as "Said Act" for short) and another proceeding under sections 7 and 36 of the said Act.
3. On 26.09.2012, respondent No. 5 and other persons filed an application praying therein for initiating the action under Section 39 of the said Act with the Commissioner. The Commissioner remitted the matter for enquiry to respondent No. 4-herein. The said enquiry is pending before respondent No. 2. It is the case of the petitioner that he has received the notice from Deputy Chief Officer for enquiry under Section 39(1) of the said Act, as per directions of the Commissioner.
The petitioner appeared in the said enquiry and put forth his contention. On 09.01.2013, the Chief Executive Officer prepared the report on the basis of report submitted by G.D.O. The said proceeding was in respect of application filed under Section 39(1) of the said Act. It is further case of the petitioner that on 16.01.2012, respondent No. 5 submitted an application for disqualification of ::: Downloaded on - 23/12/2013 20:32:25 ::: 4 W.P.3419.13 the petitioner on the ground of not conducting Gramsabha and Women Gramsabha under Sections 7 and 36 of the said Act. Pursuant to the notice received by the petitioner, he appeared before the Collector. It is the contention of the petitioner that in the said notice there was no mention of charges, which are supposed to be answered by the petitioner. The petitioner did produce the proceedings of the meetings of Gramsabha and Women Gramsahba conducted by him. However, the Additional Collector on 08.04.2013 passed the order, and thereby held that the petitioner is disqualified for not conducting the requisite Gramsabha and Women Gramsahba etc.
4. Being aggrieved by the order dated 08.04.2013, passed by the Additional Collector, the petitioner has filed this Petition.
5. Learned counsel appearing for the petitioner made following submissions:
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(a) It is submitted that the petitioner herein was elected as Sarpanch of Tambole Grampanchayat and he has conducted Gramsabhas' on 02.10.2010, 01.12.2010, 26.01.2011, 01.05.2011, 15.08.2011, 02.10.2011 and 26.01.2012. The petitioner has also conducted Women Gramsabhas on 01.10.2010, 25.01.2011, 08.03.2012, 30.04.2013, 14.08.2012 and 01.10.2012.
(b) It is submitted that on 26.09.2012 respondent No. 5 made complaint for disqualification against the petitioner to respondent Nos. 2 and 4. Pursuant to that complaint, on 27.11.2012, the Deputy Chief Officer has issued show cause notice under Section 39(1) to the petitioner. The petitioner has replied the same. It is submitted that on 15.10.2012 report was submitted by GDO to the Chief Officer disclosing the Gramsabha held by the petitioner.
(c) It is submitted that respondent No. 5submitted complaint/Dispute No. 05 of 2012 for disqualification under Section 7 of the Act. On 30.01.2013, a show cause notice was issued to the petitioner without disclosing the charges. The petitioner has submitted his say ::: Downloaded on - 23/12/2013 20:32:25 ::: 6 W.P.3419.13 and produced on record the proceedings of three relevant meetings.
(d) It is submitted that Mr. Salunke, the Secretary of Gram Panchayat has submitted his explanation dated 04.01.2013 for not maintaining the record. On 09.01.2013 report was submitted by Chief Officer, which was in respect of proceeding under Section 39(1), as per orders dated 16.01.2012. It is submitted that on 08.04.2013 respondent No. 3 passed the impugned order disqualifying the petitioner on the grounds of (i)Gramsabha in November, 2011 was not held,(ii)Women Gramsahbas during 01.10.2010 to 01.10.2012 were not held and Gramsabha dated 01.10.2012 was void for want of Coram.
(e) Learned counsel appearing for the petitioner submitted that no disqualification under Sections 7(1) or 36 of the Act was attracted. The petitioner conducted more than four Gramsahbas as well as Women Gramsahba. Accepting the charges as it is there is no disqualification incurred, it is perversity to disqualify the petitioner without considering the above referred aspect.
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(f) It is submitted that it is very shocking to disqualify the petitioner because report dated 15.10.2012 of G.D.O and report of Chief Officer dated 09.01.2013 would disclose that the petitioner conducted five meetings from April 2011 to March 2012. Overall he conducted five meetings within a year after resuming the office as Sarpanch. As per rules, he had conducted nine meetings. The meeting of budget was conducted on 10.11.2011. The proceedings of said meeting were placed on record along with say. Women Gramsabhas' were also conducted. The proceedings are not blank. The charges against the petitioner are contrary to the record.
(g) It is further submitted that no disqualification can be incurred under Sections 7 or 36 of the Act, if Gramsahba was conducted, but there was no Coram or the proceedings book was improperly written and kept blank. As per Section 54C(1) a Secretary is under obligation to maintain the proceedings of Gramsahba. A Sarpanch cannot be held liable for the said irregularities. A Sarpanch is not liable for the disqualification for non-observance of other requirement of Section 7.
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(h) It is submitted that disqualification is penal and it has grave consequences. It is not attracted for minor irregularities or for every aberration.
(i) It is submitted that justification of Secretary Mr. Himmatrao Salunke on 14.01.2013 is totally overlooked by the Additional Collector. The said explanation was part of the report submitted by the Chief officer dated 09.01.2013. Mr. Salunke was under
obligation to maintain the record, but he could not do so because of burden of work. The petitioner cannot be faulted because of the lapses in that regard.
(j) It is submitted that the findings recorded by the learned Additional Collector in the impugned order are not supported by any reasons. The report submitted by Chief Officer and G.D.O. were mechanically accepted. There is no discussion regarding the difference between Sections 7(1) and 7(5) or the parameters of disqualification provided by Sections 7(1) and 36 of the said Act.
(k) It is submitted that no charges were communicated. Thus, no proper opportunity was given to the petitioner. He was having record ::: Downloaded on - 23/12/2013 20:32:25 :::
9 W.P.3419.13 to show that requisite meetings were conducted by him and he has discharged the duties. It is further submitted that the learned Collector has committed gross illegality in relying upon the report of G.D.O. dated 15.10.2012 and report dated 09.01.2013 of Chief Officer. These two reports were predominantly pertaining to the allegations under Sections 39(1). There is no enquiry for charges under Sections 7 and 36.
6. Learned counsel appearing for the petitioner in support of aforesaid submissions, placed reliance on the following citations:
(1) Gangabai Vithal Bade Vs. State of Maharashtra and others reported in 2013(3)Bom.C.R. 277.
(2) Pratibha Sanjay Hulle Vs. Additional Collector and others reported in 2010(4) Bom.C.R. 700.
(3) Shubhangi Anil Gawande and another Vs. Additional Collector and others reported in 2010(6)Bom.C.R. 343.
(4)Vilas Sanjay Pawar Vs. Pandhairnath Tukaram Kotsulwar and others reported in 2009(Supp.) Bom.C.R. 903.::: Downloaded on - 23/12/2013 20:32:25 :::
10 W.P.3419.13
7. The learned counsel appearing for the petitioner, relying upon the pleadings in the petition annexures thereto and aforesaid provisions of the Bombay Village Panchayats Act and also law laid down by High Court in aforementioned case laws submitted that the petition deserves to be allowed.
8. Learned AGP appearing for respondent Nos. 1to 3 relying upon the reasons recorded by the Additional Collector in the impugned order submitted that the petition is devoid of any merits and the same may be dismissed.
9. Learned counsel appearing for respondent No. 5 has made following submissions.
(i) It is submitted that proceeding under Section 39(1) of the said Act, which is earlier filed by present respondent No. 5 before the Chief Executive Officer as well before the Commissioner, Nashik and after enquiry conducted by the Deputy Chief Executive Officer, is till pending against the petitioner.
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(ii) It is submitted that for declaration of disqualification under Section 39(1) of the said Act, before the learned Divisional Commissioner, Nashik, in which the powers are vested to the Commissioner under Section 39(1) to remove any members or any Sarpanch or Up- Sarpanch, who has been guilty of misconduct in the discharge of his duties and proceeding under Section 7 of the said Act.
(iii) It is submitted that proceeding under Section 7 of the said Act bearing Dispute No. 5 of 2013 filed by respondent No. 5, before the Additional Collector against the petitioner for declaration of disqualification of the petitioner on the ground that the petitioner being Sarpanch fails without sufficient cause to hold such four meetings by virtue of the provisions of Section 7 and failed to hold Women Gramsahba and fails to convey the meetings of the Panchayat in any financial year as per the provisions of Section 36 of the said Act and according to Rules prescribed in that behalf and in this proceeding, the Additional Collector has been disqualified the petitioner by order dated 08.04.2013. Both the proceedings are independent and powers are vested to the different authorities.
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(iv) It is submitted that after filing of the proceeding under Section 7 of the said Act, a notice was issued by the Collector to the petitioner and thereby called upon to submit his say. It is submitted that the petitioner has submitted his detailed reply and seriously contested the said proceeding after due opportunity of hearing and said fact has admitted by the petitioner in para No. 5 of the petition.
(v) It is submitted that there is no provisions in the said Act that at the time of holding inquiry and preparation of report by the Chief Executive Officer or Deputy C.E.O, of the proceeding or dispute relating under Section 7 of the said Act to give an opportunity of hearing on charges to such member or person concern.
(vi) It is submitted that there is provision to give an opportunity of hearing on charges, under Section 39(1)'s proceeding as proviso
(ii) of Section 39 of the said Act, and the record of Writ petition shows that in the proceedings under Section 39, the petitioner was called upon for hearing on charges by the Deputy C.E.O. vide its notice dated 27.11.2012.
::: Downloaded on - 23/12/2013 20:32:25 :::13 W.P.3419.13 (Vii) It is submitted that after scrutiny of documentary evidence on record and after giving sufficient opportunity of hearing to the petitioner, respondent No. 3 - Authority has passed the order dated 08.04.2013 and thereby rightly disqualified the petitioner as per the provisions of Sections 7, 36 and 54C (5) of the said Act, on the ground that the petitioner failed to hold such meetings and Gramsahba of the month of November 2011, even he failed to convey Women Gramsahba from 01.10.2010 to 01.10.2012 i.e Gramsahba and petitioner has not maintained the record of the meetings and the same is found blank and meetings were hold without sufficient Coram.
(Viii) It is submitted that the report dated 15.10.2012, prepared by the B.D.O and submitted to the Dy. C.E.O shows that there are various illegality and irregularities are appeared on the part of the petitioner. At the time of holding of Gramsahba dated 01.12.2010, there was no sufficient Coram, as per rules.
It is very shockingly appeared in the said proceedings that advanced chronicle history of the year 2012 was mentioned, as said Gramsahba was held on 01.12.2010.
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(ix) In the report dated 15.10.2012, it is also mentioned at item No. 5, in relation to Gramsahba dated 15.08.2011 that, there was Coram but page Nos. 87 and 88 are appeared blank of the said meeting. There is no history of Gramsabha dated 15.8.2011. Page Nos. 92 to 96 of the Gramsahba dated 02.10.2011 are blanked, history of said proceedings was not written and there are no signatures of the present members.
(x) It is further submitted that, if proceedings of Gramsabhas dated 26.01.2012, 01.05.2012 and 02.10.2012 are perused, in the chart it is mentioned that there is no subject and page Nos. 8 and 9 and 22 to 24 are blank and if Page Nos. 66 and 68 of the Gramshabas dated 26.01.2012 and 01.05.2012 are perused, there is left blank space in signatures column and there appears same experience that there is no history or chronicle is mentioned in the proceedings of such meetings.
(xi) It is submitted that, if proceedings of Gramsabhas dated 26.01.2011, 01.05.2012 to 15.08.2012 are perused, it would show that said Gramsabhas' are incomplete and conducted that too incomplete nature and after lapse of more than three months in contravention of ::: Downloaded on - 23/12/2013 20:32:25 ::: 15 W.P.3419.13 mandatory provisions of law and said Gramsabhas has not taken and conveyed as per Second proviso that of Section 7 of the said Act, which is mandatory on the part of the petitioner.
(xii) It is further submitted that the record further shows that in terms of Circular dated 30.09.2000, four Gramsahba meetings are to be held on 26th January, 1st May, 15th August and 2nd of September, which were mandatory on the part of the petitioner as per the provisions of Sections 7 and 36 of the Amended Maharashtra Village Panchayat Act 1958 and the proviso of Section 36 shows that, "Provided that, if the Sarpanch or in his absence Up-
Sarpanch, fails without sufficient cause, to convene the meetings of the Panchayat in any financial years according to the Rules prescribed in that behalf, he shall be disqualified for continue as Sarpanch."
(xiii)It is submitted that a report dated 15.10.2012 shows that in the month of November 2011, financial year Gramsabha was not held by the present petitioner, on such dates and such time as may be fixed by Sarpanch, which is mandatory by virtue of provisions of Section 36 and sub-rule(1) of Rule 3 of the Bombay ::: Downloaded on - 23/12/2013 20:32:25 ::: 16 W.P.3419.13 Village Panchayats (Gramsabha Meetings) Rules 1959. This incomplete meetings' proceedings of Gramsahba shows that there were no notices of an ordinary meeting of the Gramsabha, which is mandatory and shall be given at least seven days before such meeting, as per Rule 5.
(xiv)It is submitted that in the proceedings of meeting, it is not appeared and not mentioned that the minutes of the previous meeting has been read over in the beginning of every meeting and shall be confirmed and signed by the person Presiding at the meeting, which is mandatory as per Rule 11 of the Bombay Village Panchayats (Gramsabha Meetings) Rules 1959.
(xv)It is submitted that in the report dated 15.10.2012 of the B.D.O. and report dated 09.01.2013 of the C.E.O of Zilla Parishad, it would show that, there are serious illegality and irregularities are appeared at the time of conducting of Gramshaba and financial year Gramsabha and Women Gramsabha on the part of the petitioner. In some proceedings no sufficient Coram is appeared, in the various of Gramsahba no history was written, no previous history is taken in to next Gramsahba and no date, place and time is fixed of next ::: Downloaded on - 23/12/2013 20:32:26 ::: 17 W.P.3419.13 Gramsahba as per the mandatory sub-rule(3) of Rule 3 of the Bombay Village Panchayats (Gramsabha Meetings) Rules 1959.
(xvi) It is submitted that the petitioner has also not conveyed Women Gramshaba as per mandatory provisions of Sub-section (5) of Section 7 of the said Act. If sub-Section (5) of Section 7 of Bombay Village Panchayat Act(Amended Maharashtra Village panchayat Act 1958) is perused, it would show that the meeting of the woman members of Gramsabha shall be held before every regular meeting of the Gramsabha conveyed under sub-section(1). But in this matter, the report dated 15.10.2012 of the B.D.O. and report dated 09.01.2013 of the C.E.O are prepared after scrutiny of record of said proceedings, which show that there was no subject of Women Gramshaba is mentioned and not only this same experience has been appeared in all six Women Gramsabha, endorsement of history of all proceedings are appeared blank and the same are not conducted as per provisions of Sub-
Section (5) of Section 7 of the said Act.
(xvii) It is submitted that the petitioner has committed mistake, various illegalities, irregularities and he has lost the confidence ::: Downloaded on - 23/12/2013 20:32:26 ::: 18 W.P.3419.13 of the villagers. The petitioner was not diligent and he has not discharged the duties honestly and effectively as Sarpanch and committed misconduct by manipulating meeting proceedings of Gramsahba in collusion with Gram-sevak and the Gram-sevak subsequently completed the proceedings by making false signatures of villagers and adding history of proceeding. Respondent No. 3 authority has rightly disqualified the petitioner after scrutinizing the evidence on record.
10. Learned counsel appearing for respondent No. 5 in support of above mentioned submissions relied upon the following citations:
(A) Gunwantrao Yeshwantrao Deshmukh Vs. State of Maharashtra and another reported in [1981 Mh.L.J.815] (B)Nanasaheb Dhondiram Mundhe Vs. Additional Collector and others reported in 2010(4) Bom. C.R. 823.
11. Therefore, relying upon the reasons recorded by the Collector and arguments advanced across the bar and the grounds taken in the writ petition and ::: Downloaded on - 23/12/2013 20:32:26 ::: 19 W.P.3419.13 annexures thereto learned counsel appearing for respondent No. 5 has submitted that the petition is devoid of any merits and deserves to be dismissed.
12. I have given careful consideration to the submissions made by the learned counsel appearing for the petitioner, learned AGP appearing for respondent Nos. 1 to 3 and learned counsel appearing of respondent No. 5. With their able assistance, I have perused the grounds taken in the petition and annexures thereto and the impugned order passed by the Additional Collector, original record available for perusal and also provisions of the Said Act and also judgments of this Court cited across the bar by the learned counsel appearing for petitioner and respondent No. 5.
13. At the outset, it would be apt to reproduce herein below the contents of the notice issued by the Additional Collector, Jalgaon, dated 30.01.2013 to the present petitioner, which reads ::: Downloaded on - 23/12/2013 20:32:26 ::: 20 W.P.3419.13 thus.
";k uksVhl Onkjs vki.kl dGfo.;kar ;srs dh] xzkeiapk;r rkaCkksGs cq- rk- pkGhlxkao ft- TkGxkao ;sFkhy tkc ns.kkj Jh- lqfuy nkSyr ikVhy jk- rkacksGs cq- rk- pkGhlxkao ft- TkGxkao ;kauh eklhdlHkk o xzkelHkk u ?ksrY;kus R;kaps lnjL;in jnn dj.;kckcrpk fookn vtZ Jh- fnaxacj Hkxoku dwekor ;kauh ;k dk;kZy;kr nk[ky dsyk vkgs- ;kdkeh eq[; dk;Zdkjh vf/kdkjh ft-i-tGxkao ;kauh pkSd'kh d:u R;kapsdMhy fnukad 09@01@2013 P;k i+=kUo;s vgoky lknj dsyk vkgs- izLrqr dkeh pkSd'khdjhrk fnukad 18@2@2013 jksth ldkGh 11-00 oktrk lquko.kh fuf'pr dj.;kar vkys vkg-s rjh mDr rkj[ksl vki.k vok';d R;k dkxnksi=h iqjkO;lkgh gtj jgkos- ojhy fno'kh o osGh vki.k gtj u jkfgY;kl vkiys ;kdkeh dkgh ,d Eg.k.ks ukgh vls x`ghr /k:u fu;ekuqlkj iq<hy dk;Zokgh dj.;kar ;sbZy ;kph uksan ?;koh-"
14. Upon careful perusal of the contents of the notice, which was issued to the petitioner under Sections 7 and 36 of the said Act, it is abundantly clear that there is no mention of any specific charges-points, which are required to be answered by the petitioner. This Court in the case of Pratiba Sanjay Hulle Vs. Additional Collector & others reported in 2010(4)Bom.C.R.700, more particular, in para No. 36 held that, 'to enable Sarpanch to raise proper defence and explain ::: Downloaded on - 23/12/2013 20:32:26 ::: 21 W.P.3419.13 sufficient cause for his failure to perform any statutory function, he must be informed essentially as regards his failure meaning thereby he must be communicated the specific charges.'
15. In the facts of that case, the allegation was that the petitioner therein i.e. Sarpanch, did not perform his statutory obligation as envisaged under Sections 7 and 36 of the said Act. This Court taking into consideration the fact that the specific charges were not communicated to the petitioner therein, held that enquiry and the order passed against the petitioner therein is vitiated.
16. In the facts of the present case, as already observed, in notice there are no specific charges mentioned so as to enable the petitioner to answer the said charges in his defence. In that view of the matter and in view of law laid down by this Court in the case of Pratibha Hulle(Supra), in the facts of the present case also, enquiry and the order passed by the Additional Collector stand ::: Downloaded on - 23/12/2013 20:32:26 ::: 22 W.P.3419.13 vitiated for non-compliance of basic principles of natural justice. Therefore, on this ground the enquiry conducted by the Officers and order passed by the Additional Collector deserve to be quashed and set aside.
17. The contention of the learned counsel for the petitioner that requisite Gramsahbas' have been conducted. It is the contention of the learned counsel for respondent No. 5 that requisite Gramsahbas are not conducted. The rival contentions would lead to disputed question of fact. This Court has held that enquiry conducted and order passed by the Additional Collector on the basis of notice issued on 30.01.2013 by the Additional Collector, Jalgaon to the petitioner stood vitiated. Since no specific charges were communicated to the petitioner, it would be open for the authorities to follow the procedure, communicate the charges to the petitioner and then take appropriate decision in the matter. However, in the light of discussion herein above, the ::: Downloaded on - 23/12/2013 20:32:26 ::: 23 W.P.3419.13 petition deserves to be allowed.
18. Accordingly, the petition is allowed in terms of prayer clause(C). Rule made absolute in above terms. The petition stands disposed of.
Sd/-
[ S. S. SHINDE, J. ] . At this stage, learned counsel appearing for respondent No. 5 prays for stay to the implementation of this order, passed by this Court.
. The prayer is vehemently opposed by the counsel for petitioner.
. In the light of above, prayer stands rejected.
Sd/-
[ S. S. SHINDE, J. ] MTK ::: Downloaded on - 23/12/2013 20:32:26 ::: 24 W.P.3419.13 ::: Downloaded on - 23/12/2013 20:32:26 :::