Bombay High Court
Sou. Jyotitai Vikas Gawande vs Additional Commissioner on 16 March, 2009
Author: S.R. Dongaonkar
Bench: S.R. Dongaonkar
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY:
NAGPUR BENCH: NAGPUR
WRIT PETITION NO. 5331 OF 2008
PETITIONER:
Sou. Jyotitai Vikas Gawande, aged - adult, Sarpanch,
Gram Panchayat, Sirso, at post Sirso, Ditrict : Akola
VERSUS
RESPONDENTS:
1] Additional Commissioner, Amravati Division, Amravati.
2] Additional Collector, Akola.
3] Dadarao Onkarrao Chotmal, aged adult, Member, Gram
Panchayat, Sirso, at Post, Sirso, Tahsil Murtizapur,
District : Akola.
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Shri P.C. Madkholkar, Advocate for petitioner
Shri A.S. Sonare, A.G.P. for respondent no.1 & 2
Shri S.D. Chopde, for respondent no.3
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CORAM: S.R. DONGAONKAR, J.
DATE:16.3.2009
ORAL JUDGMENT
Heard Shri P.C. Madkholkar, Advocate for petitioner, Shri A.S. Sonare, A.G.P. for respondent no.1 & 2 and Shri S.D. Chopde, for respondent no.3 Rule. Made returnable forthwith. Heard with consent of parties.
2] By this petition, the petitioner - Sarpanch of Gram Panchayat Sirso, district : Akola is challenging the order passed by the Additional Commissioner, Amravati Division, Amravati in Appeal No.53/BVP Act 16(2)/2007-2008 of Sirso, arising out the ::: Downloaded on - 09/06/2013 14:25:08 ::: 2 order passed by the Additional Collector, Akola in Case No. Bombay Village Panchayat Act 1958 Section 14(1)(g) Sirso/55/2007-2008. Additional Collector by his order dated 4.7.2008 had held that there was enough material to disqualify the petitioner under section 14(1)(g) of the Bombay Village Panchayat Act. The petitioner challenged that order before the Commissioner Amravati Division, Amravati. Learned Additional Commissioner, Amravati Division, Amravati dismissed the appeal of the petitioner under section 16(2) of the Bombay Village Panchayat Act by order dated 28.11.2008, against which this petition is preferred.
2] Learned counsel for the petitioner has submitted that by no stretch of imagination the allegations levelled by respondent no.3 against the petitioner in his complaint before the Collector, Akola can make out a case for his disqualification under section 14(1)(g) of the Bombay Village Panchayat Act. According to him, allegations against the petitioner's husband precisely were that he had withdrawn certain amount from the bank from Gram Panchayt Account and cheques drawn for its expenditure and that amount was deposited with the Secretary of Gram Panchayat. According to him, the reason for withdrawal of such amount was the indisposition of the Secretary, Gram Panchayat. According to him, the said amount was withdrawn for the expenditure of Gram Panchayat and in fact all such amounts after withdrawal were deposited with the Secretary Gram Panchayat and the same was spent for the given purpose. According to him, the petitioner or her ::: Downloaded on - 09/06/2013 14:25:08 ::: 3 husband has no interest or share whatsoever in the contracts granted by the Gram Panchayat for various works as required under section 14(1)(g) of the Bombay Panchayat Act. Therefore, according to him, the orders passed by the Additional Collector as well as Additional Commissioner are without application of mind and liable to be set aside in the extra ordinary writ jurisdiction of this Court.
3] Learned A.G.P. has supported the impugned orders contending that the husband of the petitioner should not have withdrawn the amounts which were required to be withdrawn by the Secretary of the Gram Panchayat to be spent by him. Therefore, according to him, there was interest created by the husband of the petitioner in the working and administration of the Gram Panchayat and therefore, the petitioner was rightly disqualified under section 14(1)(g) of the Bombay Panchayat Act.
4] Learned counsel for respondent no.2 while supporting the order of the Additional Collector and Additional Commissioner has referred to the chart filed by him in reply which shows that at about 8 times the cheques which were drawn in favour of Secretary of Gram Panchayat, Raju Wardhe, Gajanan Building Material Supplier, Jyoti Vikas Gawande, Ajay Deorao Gawande, were encashed by the husband of the petitioner. Therefore, according to him, there was clear "interest" created by husband of the petitioner in the administration of the Gram Panchayat and therefore, she was ::: Downloaded on - 09/06/2013 14:25:08 ::: 4 rightly disqualified by the Additional Collector as confirmed by the Additional Commissioner.
5] Here is the case where it is not disputed that the husband of the petitioner had withdrawn the amount of some cheques drawn under the signature of th petitioner and the Secretary of the Gram Panchayat. It is the case of the petitioner that the said amounts though were withdrawn by the husband of the petitioner, the same were deposited with the Secretary of the Gram Panchayat and the same were spent for the purpose for which they were withdrawn.
6] In order to appreciate the rival contentions of the parties, it is necessary to closely peruse section 14(1)(g) of the Bombay Panchayat Act, which reads:
"14(1): No person shall be a member of a Panchayat continue as such, who - - - - - - - - - - - - -
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(g) has directly or indirectly, by himself or his partner, any share or interest in any work done by order of the Panchayat, or in any contract with, by or on behalf of, or employment with or under, the Panchayat or,"
7] It would be thus seen that there should be share interest by himself or his partner in any work done by order of the Gram Panchayat or in any contract, with by or on behalf of, or ::: Downloaded on - 09/06/2013 14:25:08 ::: 5 employment with or under the Panchayat.
8] At this stage it is necessary to see the contents of the complaint preferred by the respondent no.2, the relevant part of the complaint reads thus:
"2- Non applicant no.1 is member of Gram Panchayat Sirso. Non applicant no.1 was elected as Sarpanch in the election held in 2005. As on today she non applicant no.1 is working as Sarpanch, Gram Panchayat Sirso.
3. On 21.3.2007 non applicant no.1 herself has withdrawn an amount of Rs.10000/-(Rs. Ten thousand rupees) from bank account bearing no.7729 of Gram Panchayat Sirso, from the Central Bank of India, Branch Murtizapur. Therefore, the non applicant no.1 has established direct or indirect interests in the working of the Gram Panchayat Sirso. Hence it is requested that non applicant no.1 be disqualified from the post of Member, Gram Panchayat Sirso, under section 14(1)(g) of the B.V.P. Act 1958.
4. Non applicant no.1 resides with her husband - Vikas Bhaurao Gawande in joint family. Similarly, husband of non applicant no.1 has withdrawn an amount of Rs.33,080/- vide cheque no.537033 from account No.1909 at Bank of Maharashtra Branch Sirso, under Rural Employment Scheme Account on 3.5.2007 and an amount of Rs.32290/- vide cheque no.537029 dated 3.5.2007. Therefore, non applicant no.1 through her husband has created interests directly or indirectly in the working of the Gram Panchayat Hence it is requested that non applicant no.1 be declared to have incurred disqualification under section 14(1)(g) of the B.V.P. Act 1958 from the post of Member, Gram Panchayat
5. Similarly, husband of non applicant no.1 has himself by going to the bank, has withdrawn the ::: Downloaded on - 09/06/2013 14:25:08 ::: 6 amount from all accounts of the Gram Panchayat. Information in this regard is available with the Secretary, Gram Panchayat.
6. In above matter, all concerned record is available with the Secretary, Gram Panchayat Sirso. Hence it is requested that Secretary, Gram Panchayat, Sirso be called along with original record."
9] It would be seen that there is no allegation made by the respondent no.3 that any share or interest of the petitioner or her husband in the work or contract done by any party for Gram Panchayat.
10] It would be seen from the chart which is reproduced by respondent no.3 that cheques in favour of one Raju Wardhe, Gajanan Building Material Suppliers, Jyoti Vikas Gavande, Ajay Deovrao Gawande were allegedly encashed by husband of the petitioner. However, in the complaint preferred by respondent no.3 there appears no allegation as regards the petitioner or her husband's having interest or any share in the contracts tendered by these persons for the Gram Panchayat. No doubt it appears that one of the cheque was payable to the petitioner herself of Rs.2400/-, but there appears no allegation as to for what this amount was withdrawn. No particulars are stated though the said cheque appears to be shown in the name of the petitioner - Sarpanch. Merely because it is drawn in favour of petitioner that by itself would not attract disqualification under section 14(1)(g) of th Bombay Village Panchayat Act unless appropriate allegations are ::: Downloaded on - 09/06/2013 14:25:08 ::: 7 made and substantiated.
11] There has to be material on record to suggest that said amount was payable in respect of any contract or work done for the Gram Panchayat. As such allegations are missing, much less for want of proof of such allegations no inference against the petitioner can be drawn. Remote unsubstantiated possibilities can not be considered for inviting liability of disqualification. The same is the case as regards the alleged payments to Raju Wardhe, Gajanan Building Material Supplier as well as Ajay Deorao Gawande.
12] Turning to the reasons recorded by the Additional Collector, in support of his order, it would be seen that he has observed:
"From the above discussions, the following fact are being proved at this place. In the matter, the non applicant no.1 had withdrawn an amount of Rs.10000/- on 21.3.2007 from Account NO.7729 of Gram Panchayat, Sirso. Moreover, the fact has been refused by the non applicant No.1 that my husband vide Cheque Nos. 537033 and 537029, had withdrawn the amount to the extent of Rs.33080/- and 32290/- from account No.1909 of the Gram Panchayat, Sirso on 3.5.2007 in the entire Rural Employment Scheme which fact has been denied by non applicant No.1. The utilization of the amount so withdrawn is minor in nature and as I am of the opinion that, obtaining such amounts, the non applicant no.1 has directly or indirectly established here relation in the work of the Gram Panchayat, therefore, the following order is being passed.::: Downloaded on - 09/06/2013 14:25:08 ::: 8
13] Learned Additional Commissioner has observed for supporting his impugned order, saying thus:
" The functions and activities of the Gram Panchayat are to be performed by the Sarpanch, Upa Sarpanch and Secretary and the members only and no persons other than those mentioned above have right to interfere in the work of the Gram Panchayat. The person who are holding the public post like Sarpanch / Up-Sarpanch or member of Gram Panchayat should have no vested interest while discharging the function of the Gram Panchayat and with the view the provision of section 14(g) seems to have incorporated in the Act so that there should be no obstruction in the work of the Gram Panchayat. In the instant case husband of the appellant had withdrawn the amount of Rs.32,290/- by cheque no.537029 and Rs.33080/- by cheque No.537033 on 3.5.2007 and these amount has been handed by her husband. So also Rs.4400/- has been withdrawn on 20.10.2006 against the cheque no.290. So also from the documents of the Bank shows many such transactions has been done by the husband of the appellant. Appellants seems to have habitual in doing such practice which clearly shows that appellant has vested interest while discharging the function as Sarpanch and therefore, lower court rightly declared her disqualified form the post and passed legal and proper order. Hence I passed the following order:
Appeal being devoid of merit is dismissed."
14] Both the authorities have misdirected themselves in drawing the inference that because of withdrawal of the cheque amounts by the husband of the petitioner, there was interest created in the administration of the Gram Panchayat attracting disqualification under section 14(1)(g) of the said Act as referred ::: Downloaded on - 09/06/2013 14:25:08 ::: 9 above. In my opinion such inferences drawn by Additional Collector and Additional Commissioner are not tenable at law at all without any convincing material on record.
15] Learned counsel for the respondent no.3 has referred to the judgment of this court in 1975 Mh. L.J. 701 Dattatraya Narhar Pitale ..vs.. Vibhakar Dinkar Gokhale & another.
16] In my opinion the facts of that case are quite distinguishable. It would be seen from placitum B paragraph 21 of the judgment that there was a case of employment as Headmistress of Municipal School, which presupposes the contract. Here there is no allegation that the husband of the petitioner was employed by the Gram Panchayat. Merely because on some occasion, he had withdrawn the amounts of cheques for Secretary of the Gram Panchayat which was accounted for the expenses of the Gram Panchayat, that fact by itself would not make it of similar nature to the decision referred by the learned counsel for respondent no.2.
17] Learned counsel for the respondent no.3 has drawn my attention to the report submitted by the Secretary, of gram Panchayat page 35, which reads thus:
"In the aforesaid matter wish to submit report that while I was working as Rural Development Officer at Village Panchayat Sirso, the complete accounts of Rural Employment Scheme of Gram Panchayat were standing in the name of Sarpanch and Secretary jointly. Even then I was being pressurized by the husband of the ::: Downloaded on - 09/06/2013 14:25:09 ::: 10 husband of Sarpanch - Shri Vikas Bhaurao Gawande was pressurising me. And exercising the pressure, he got written from me the cheque no.537029 for Rs.32290 on 3.5.2007 and cheque No.537033 for Rs.33080/- on 3.5.2007 and himself withdrawn the said amount from the bank account no.1909 and himself has handled the amounts. This is a fact. When present proceedings were initiated before you, Shri Vikas Bhaurao Gawande by exercising pressure on me and with threat to kill, got written from me that the said amounts to have been received by me. But in fact he has not given the amounts to me.
Thus from General Fund Account No.290/- on 20.10.2006 by cheque no.315123 Rs.4400/- is written in the name of Secretary and amount is withdrawn by Shri Vikas Bhaurao Gawande.
2] On 20.10.2006 cheque no.315124 for Rs.4600/- is in the name of Raju Wardhe, but amount is taken by Vikas Bhaurao Gawande.
3] On 23.10.2006 by cheque No.315058 Rs.2235/- the cheque is shown to be in the name of secretary, the husband of sarpanch Shri Vikas Bhaurao Gawande has taken the amount.
4] On 6.11.2006, by cheque no.315063 for Rs.15000/- in the name of Gajanan Building Material Suppliers, the cheque was in fact encashed by husband of Sarpanch Shri Vikas Bhaurao Gawande."
18] According to Secretary, Gram Panchayat, the husband of the petitioner was bringing pressure on him for such withdrwals.
He has alleged that amount which was payable to Raju Wardhe was in fact taken by Vikas Gawande i.e. husband of the petitioner. The amount which was payable to the Secretary of the Gram Panchayat was taken by husband of the petitioner, so also the amount which was payable to Gajanan Building Material Supplier was taken by ::: Downloaded on - 09/06/2013 14:25:09 ::: 11 husband of the petitioner. Ex-facie, such allegations if substantiated would invite criminal action against husband of petitioner, if there is misappropriation of the amount. It is for Secretary of Gram Panchayat to take appropriate legal action.
19] Though the practice adopted by the petitioner and secretary of the gram Panchayat in the present case, of handing over the cheques to the husband of the petitioner for withdrawing the amount, in no case can be treated as a permissible in the administration of the Gram Panchayat and has to be deprecated.
For that disciplinary action against the Secretary of the gram Panchayat would be necessary, if it is warranted and considered fit by the appropriate authorities, but fact in this case remains that this court is required only to consider as to whether the petitioner can invite disqualification under section 14(1)(g) of the Bombay Village Panchayat Act. In my opinion considering object and scope of the said section and intention of the said provision, it is not possible to hold that the allegations made by respondent no.2 in his complaint are sufficient enough to attract the said disqualification. The reasons recorded by the Additional Collector & Additional Commissioner, for the impugned in this petition appear to be too general in nature. They do not state any specific allegations made by the complainant, refer the evidence adduced by him in that behalf and how the allegations are substantiated.
20] Fresh case for disqualification of the petitioner in respect ::: Downloaded on - 09/06/2013 14:25:09 ::: 12 of the allegations of the action of the husband in the work done by Raju Wardhe, Gajanan Building Suppliers, can not be allowed to be made out at this stage in this petition. Accordingly petition needs to be allowed. The same is allowed. Impugned order of Additional Collector and Additional Commissioner are hereby quashed and set aside. It is held that the petitioner has not incurred any disqualification under section 14(1)(g) of the Bombay Village Panchayat Act.
21] It is also made clear that the authorities concerned including the Collector Akola, would be entitled to take any other action permissible in law against husband of the petitioner, as well as the Secretary of the Gram Panchayat. Needless to say that if the petitioner is liable for any other action, she would not be entitled to claim any benefit of this judgment. The same shall be decided on its own merits.
22] It is made clear that the respondent no.3 is not prevented from taking any action for the allegations other than made in the instant complaint.
23] Before parting with the matter, I may add that facts of case reflect sorry state of affairs in the administration of Gram Panchayat. It would not be wrong to expect Collectors or concerned superior officers in Government to exercise effective control and supervision to eliminate such type working of Gram Panchayat in ::: Downloaded on - 09/06/2013 14:25:09 ::: 13 the larger public interest. As such copy of this judgment be forwarded to the Chief Secretary, State of Maharashtra, Mumbai for appropriate steps.
JUDGE smp.
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