Bombay High Court
Smt. Sheela Nandkishor Ingle vs The Additional Commissioner, Amravati ... on 8 February, 2019
Equivalent citations: AIR 2019 (NOC) 385 (BOM), 2019 (2) ABR 639, (2019) 4 MAH LJ 381, (2019) 2 ALLMR 412 (BOM), AIRONLINE 2019 BOM 106
Author: Manish Pitale
Bench: Manish Pitale
wp2000.18.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 2000 OF 2018
Smt.Sheela Nandkishor Ingle
-Vs.-
The Additional Commissioner, Amravati Division, Amravati and others
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders.
or directions and Registrar's orders.
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Mr.Ranjeet Sing V. Gahilot, counsel for the petitioner.
Ms Ritu Kaliya, AGP for respondent Nos.1 and 2.
Mr.R.S.Kurekar, counsel for respondent No.3.
Mr. Pushkar V. Ghare, counsel for respondent No.4.
CORAM : MANISH PITALE, J.
DATE OF CLOSING: 30.01.2019.
DATE OF PRONOUNCING: 08.02.2019
By this writ petition, the petitioner
challenges her disqualification as Sarpanch of Gram Panchayat Gundha, Taluka Lonar, District Buldhana, under section 14(1)(g) of the Maharashtra Village Panchayats Act, 1959 (hereinafter referred to as "Act of 1959"). The respondent Nos.1 and 2 have concurrently held against the petitioner and thereby disqualified her from holding the said elected position of Sarpanch of the said gram panchayat.
2. The petitioner and other members of the said gram panchayat were elected for five year term in 2015. The petitioner was elected as Sarpanch of KHUNTE ::: Uploaded on - 08/02/2019 ::: Downloaded on - 09/02/2019 02:29:22 ::: wp2000.18.odt 2/18 the said gram panchayat. A scheme called "Dalit Vasti Yojana", was launched on the basis of funds made available as per the 13th and 14th Finance Commission Report, for carrying out various development works in all villages in the State of Maharashtra. The said scheme was to be implemented jointly by the Block Development Officer and the said gram panchayat and the disposal of funds for carrying out development work under the said scheme was to be made through a joint account of the aforesaid two entities. In March, 2017, an agreement was entered between Block Development Officer, Lonar and Gram Panchyat Gundha through the petitioner as Sarpanch in order to implement the said scheme. On 26/08/2016 and 28/07/2016, the gram panchayat passed resolutions in meetings chaired by the petitioner as Sarpanch, wherein it was decided that works would be allotted for construction of roads and pipeline under the aforesaid scheme. On the basis of the said resolutions, proposals were submitted before the Block Development Officer and contracts for the said development works were awarded. It is an admitted position that under the aforesaid scheme, works that involved expenditure of less than Rs.3,00,000/- were not to be awarded by way of auction and such works could be awarded directly by the implementing agency, which in this case was the gram panchayat.
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3. It has come on record that the husband and brother-in-law of the petitioner were paid amounts for implementing some part of the said development work under the said Dalit Vasti Yojana, being implemented by the gram panchayat. On 26/05/2017, respondent No.3, also an elected member of the gram panchayat, submitted a complaint before respondent No.2-Additional Collector, Buldhana against the petitioner, claiming that she deserved to be disqualified to hold the elected position of member and Sarpanch of the gram panchayat under section 14(1)(g) of the Act of 1959. The respondent No.3 placed on record documents before respondent No.2-Additional Collector demonstrating that the husband of the petitioner had indeed received amounts for carrying out development work under the aforesaid scheme, which was being implemented by the gram panchayat and that therefore, since she had interest in allotment of work to her husband and brother-in- law, she had incurred disqualification under the said provision.
4. The petitioner opposed the aforesaid complaint filed by respondent No.3, stating that there was no direct or indirect interest that could be established in the present case insofar as the petitioner was concerned and further that even if her husband had been paid for carrying out works KHUNTE ::: Uploaded on - 08/02/2019 ::: Downloaded on - 09/02/2019 02:29:22 ::: wp2000.18.odt 4/18 under the said scheme, it could not be said that he was partner of the petitioner in carrying out the works on behalf of the gram panchayat and that therefore, the petitioner could not be held to be disqualified under section 14(1)(g) of the Act of 1959.
5. By order dated 31/10/2017, respondent No.2-Additional Collector allowed the complaint filed by respondent No.3 and held that the petitioner stood disqualified as member and Sarpanch of the gram panchayat under section 14(1)(g) of the Act of 1959. Respondent No.2- Additional Collector found that the petitioner and her husband were staying in same house as per the voters list and that her brother-in-law was also part of the Hindu Undivided Family of which the petitioner was a member. The said respondent found that the payments were indeed made to the husband of the petitioner for specific development works carried out under the said scheme and further that she had herself and through her partner, interest in the work and being husband- wife, the petitioner and her husband were partners and that therefore the petitioner stood disqualified under section 14(1)(g) of the Act of 1959.
6. By order dated 16/03/2018, respondent No.1-Additional Commissioner dismissed the appeal KHUNTE ::: Uploaded on - 08/02/2019 ::: Downloaded on - 09/02/2019 02:29:22 ::: wp2000.18.odt 5/18 of the petitioner and held that the husband of the petitioner had done work for the gram panchayat, for which he was paid and further that the petitioner had tried to benefit her family by using her post, thereby incurring disqualification under section 14(1)(g) of the Act of 1959. The aforesaid two orders of respondent Nos.1 and 2 have been challenged in the present writ petition.
7. Mr. Ranjeetsingh V. Gahilot, learned counsel appearing for the petitioner, submitted that the impugned orders passed by respondent Nos.1 and 2 were unsustainable because they were based on an erroneous interpretation of section 14(1)(g) of the Act of 1959. It was submitted that the said respondents erred in holding that the petitioner had direct or indirect interest in the work done by her husband and merely because the work was implemented by the husband of the petitioner, it would not bring her within the four corners of section 14(1)(g) of the Act of 1959, to incur disqualification. It was submitted that the said provision had to be read as it is and adding words or phrases therein would do violence to the rules of interpretation of statutes. It was contended that a provision of law was required to be interpreted literally for what it meant and to indulge in interpretations that stretched a provision, would not be sustainable. According to the learned counsel, KHUNTE ::: Uploaded on - 08/02/2019 ::: Downloaded on - 09/02/2019 02:29:22 ::: wp2000.18.odt 6/18 respondent Nos.1 and 2 had misread the word "partner" while holding against the petitioner. In this regard, reference was made to the provisions of the Partnership Act, particularly the definition of "partner", to contend that the petitioner and her husband could not be said to be partners, insofar as the work that was implemented by her husband for the gram panchayat. Reliance was placed on judgment of the Hon'ble Supreme Court in the case of Gulab Yasin Khan v. Sahebrao Yeshwantrao Walaskar and others, 1966 Mh.L.J. 269, to contend that a Constitution Bench of the Hon'ble Supreme Court had held that a person was not disqualified from contesting election to a Municipal Committee, only because his son was an employee of the said Municipal Committee. The learned counsel also placed reliance on judgments of this Court in the case of Dhrupadabai Laxmanrao Mhaske v. Additional Commissioner, Amravati and others, 2015 (4) Mh.L.J. and Sau.Nandabai Ramesh Wakude v. Shivprasad s/o Waman Wakude and others (order dated 11/03/2015 in Writ Petition No.7294 of 2014), to contend that in facts and circumstances, similar to the present case, this Court had held that a person similarly situated like the petitioner herein could not be held to be disqualified under section 14(1)(g) of the Act of 1959. The learned counsel further relied upon judgment of the Hon'ble Supreme Court in the case KHUNTE ::: Uploaded on - 08/02/2019 ::: Downloaded on - 09/02/2019 02:29:22 ::: wp2000.18.odt 7/18 of Harbhajan Singh v. Press Council of India and others, (2002) 3 SCC 722 in support of his contention that the intention of the legislature was to be interpreted from the language used in the provision and that the golden rule was that words of a statute must prima facie be given their ordinary meaning. In order to contend before this Court that the Court ought not to imply moral and ethical considerations while interpreting a statute, the learned counsel relied upon a judgment of the Hon'ble Supreme Court in the case of Navjot Singh Sidhu v. State of Punjab and another, (2007) 2 SCC 574.
8. Per contra, Mr.R.S. Kurekar, learned counsel appearing for the contesting respondent No.3, submitted that there was sufficient material on record to demonstrate payments received by the husband of the petitioner for works done by the gram panchayat as implementing agency and therefore, the petitioner clearly incurred disqualification under section 14(1)(g) of the Act of 1959. It was submitted that the petitioner not only had indirect but, direct interest in the works implemented by the gram panchayat, for which her husband was paid amounts and that therefore, the impugned orders passed by respondent Nos.1 and 2 deserved to be confirmed. The learned counsel relied on judgments of this Court in the case of KHUNTE ::: Uploaded on - 08/02/2019 ::: Downloaded on - 09/02/2019 02:29:22 ::: wp2000.18.odt 8/18 Ashabai w/o Laxman Gawande v. Additional Commissioner, Amravati Dvn., Amravati and others, 2005 (3) Mh.L.J. 183, Jyotitai Vikas Gawande, Additional Commissioner, Amravati and others, 2009 (5) Mh.L.J.486 and Bhagwat Maroti Ghuge v. State of Maharashtra and others (order dated 25/02/2015 passed in Writ Petition No.1629 of 2015).
9. Ms Ritu Kaliya, learned A.G.P. appeared on behalf of respondent Nos.1 and 2 and Mr. Pushkar Ghare, learned counsel appeared for respondent No.4-Gram Panchayat.
10. Heard learned counsel for the parties and perused the record. As respondent Nos.1 and 2 have concurrently held that the petitioner had incurred disqualification under section 14(1)(g) of the Act of 1959, it is necessary to first refer to the said provision and the same reads as follow:-
"14. Disqualifications.- (1) No person shall be a member of a Panchayat continue as such, who-
(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."
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11. A perusal of the above quoted provision shows that if an elected member of a gram panchayat is to be held to be disqualified under the said provision, he/she has to either directly or indirectly have share or interest in work done by order of the panchayat or in any contract with the panchayat. The words "by himself or his partner"
are also used in the said provision to indicate that if the share or interest in the work done by the order of the panchayat is held either by himself or the partner of the elected member, disqualification under the said provision would be incurred. There cannot be any doubt that the word "partner" would have to be interpreted as legally defined. To that extent, the learned counsel appearing for the petitioner is justified in contending that the petitioner and her husband cannot be said to be partners as legally defined under the Partnership Act and that it could not be presumed that since they were husband and wife, they were necessarily business partners. But, the most crucial words in the said provision are that "the elected member" has "directly or indirectly" any "interest in any work done by order of the panchayat". The question is, can it be said that even if the husband of the petitioner admittedly carried out work on the order of the gram panchayat and received amount for the same, since he cannot be said to be a partner of the petitioner in the legal sense of the term, the KHUNTE ::: Uploaded on - 08/02/2019 ::: Downloaded on - 09/02/2019 02:29:22 ::: wp2000.18.odt 10/18 petitioner did not incur disqualification under the aforesaid provision.
12. The aforesaid provision and similar provisions in other statutes have come up for consideration and interpretation before this Court in various cases and it would be advantageous to refer to some of them. In the case of Indumati Laxman Bhakare v. State of Maharashtra and others, 2004 (3) Mh.L.J., this Court was concerned with the question as to whether an elected municipal councilor had incurred disqualification under section 16(i) of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (hereinafter referred to as "Act of 1965") when amounts were paid to her husband, a contractor, by the Municipal Council after she was elected as member and president thereof, pertaining to bills for municipal works that were carried out before his wife was elected. The said provision is similar to the provision that falls for consideration in the present case and hence, it would be appropriate to refer to the same. Section 16(i) of the Act of 1965 reads as follows.
"16. (1) No person shall be qualified to become a Councillor whether by election, or nomination , who-
(i) save as hereinafter provided, has directly or indirectly, by himself or his partner, any share or interest in any work KHUNTE ::: Uploaded on - 08/02/2019 ::: Downloaded on - 09/02/2019 02:29:22 ::: wp2000.18.odt 11/18 done by order of a Council or in any contract with or under or by or on behalf of a Council; or"
13. While considering the question as to whether the petitioner in that case incurred disqualification, this Court considered the aspect of conflict of interest and duty. It was held in the said judgment by this Court that the object of the legislature while interpreting such a provision was to prevent conflict between interest and duty that would arise if a contractor having a claim against the Municipal Council in respect of the work done for the council either contested election himself or his spouse were to contest the election. It was held that an elected candidate would always have interest in respect of work carried out by the Municipal Council. On this basis, disqualification of the petitioner was upheld by this Court.
14. While deciding the aforesaid judgment, this Court referred to the Full Bench judgment of this Court in the case of Dattatraya Narhar Pitale v. Vibhakar Dinkar Gokhale and another, 1975 Mh.L.J. 701. wherein this Court discussed the concept of conflict of interest when it was claimed that the elected member of the Municipal Council had incurred disqualification because his wife was an employee and headmistress of a school run by KHUNTE ::: Uploaded on - 08/02/2019 ::: Downloaded on - 09/02/2019 02:29:22 ::: wp2000.18.odt 12/18 the Municipal Council. It was held that even if it appeared that a conflict of interest would not arise to incur disqualification, but if a situation occurred where the Municipal Council contemplated disciplinary action against the headmistress of the school run by the Municipal Council, who was the wife of the elected member, there would be a clear conflict of interest and duty leading to disqualification of the elected member. Thus, in order to maintain purity of the responsibility with which an elected member in a representative democracy is to work, a wide import has been given to the concept of direct or indirect interest in any work done by a panchayat or municipal body so as to ensure that there is no conflict of interest and duty of an elected representative.
15. The learned counsel for the petitioner has heavily relied upon the Constitution Bench judgment of the Hon'ble Supreme Court in the case of Gulam Yasin Khan v. Sahebrao Yeshwantrao Walaskar and others (supra). But, the said case is clearly distinguishable because there was material before the Court to reach a conclusion that the son of the candidate seeking to stand for election as member of the Municipal Committee, was separate and the two were not living together. In the said case, the son of the candidate was in employment of the Municipal Committee when nomination paper KHUNTE ::: Uploaded on - 08/02/2019 ::: Downloaded on - 09/02/2019 02:29:22 ::: wp2000.18.odt 13/18 was being filled by the candidate and an objection was raised in that regard. But, in the present case, respondent Nos.1 and 2 have found sufficient material on record to show that the petitioner and her husband live in the same house. In any case, even the petitioner has not come up with a contention that she and her husband are not living together or that they are separated. Therefore, reliance placed on the aforesaid Constitution Bench judgment of the Hon'ble Supreme Court can be of no avail to the petitioner. The judgment of this Court in the case of Dhrupadabai Laxmanrao Mhaske v. Additional Commissioner, Amravati and others (supra) can also be clearly distinguished on that basis. The judgment of this Court in the case of Sau.Nandabai Ramesh Wakude v. Shivprasad s/o Waman Wakude and others (supra) is also distinguishable because in that case, this Court came to a categorical conclusion that the scheme under which the husband of the elected candidate had received benefit, was a scheme being implemented through the Block Development Officer of the panchayat samiti constituted under section 57 of the Maharashtra Zilla Parishads and Panchayat Samiti Act, 1961, which was an independent authority.
16. In the present case, the Dalit Vasti Yojana was admittedly implemented by the gram panchayat KHUNTE ::: Uploaded on - 08/02/2019 ::: Downloaded on - 09/02/2019 02:29:22 ::: wp2000.18.odt 14/18 itself, which is evident from the completion certificate for the said works wherein it is clearly stated that the name of the agency implementing the work was the gram panchayat. It has also come on record that the fund for payment of works was in a joint account of the said two entities and they had entered into an agreement, to which the petitioner was a signatory in the capacity of being Sarpanch of the gram panchayat. There are documents on record showing that the husband of the petitioner was indeed given payments of various amounts for carrying out works under the said scheme. The said development works under the scheme were carried out in pursuance of resolutions dated 26/08/2016 and 28/07/2016 passed by the gram panchayat in meetings to which the petitioner was not only a party but she presided over such meetings as the Sarpanch.
17. Thus, the facts of the present case clearly show that the petitioner not only had an indirect but a direct interest in the work done by the order of the gram panchayat and awarding of works and contracts in such situation to the husband of the petitioner clearly resulted in disqualification of the petitioner under section 14(1)(g) of the Act of 1959. There was conflict of interest and duty in the present case inviting disqualification of the petitioner under the aforesaid provision. The KHUNTE ::: Uploaded on - 08/02/2019 ::: Downloaded on - 09/02/2019 02:29:22 ::: wp2000.18.odt 15/18 learned counsel for respondent No.3 was therefore justified in relying upon judgment of this Court in the case of Ashabai w/o Laxman Gawande v. Additional Commissioner, Amravati Dvn., Amravati and others, (supra) wherein this Court found that husband of the elected candidate was a direct beneficiary of the housing scheme wherein part of the amount for construction of the houses was given by the gram panchayat. The judgment in the case of Jyotitai Vikas Gawande, Additional Commissioner, Amravati and others (supra) brought to the notice of this Court by learned counsel for respondent No.3 also shows that when husband of an elected member of a gram panchayat had interest or share in the contracts granted by the gram panchayat for various works, the elected member incurred disqualification under section 14(1)(g) of the Act of 1959. In the facts of the said case, this Court had held in favour of the elected member because although there were cheques on record showing that certain amounts were drawn in favour of the elected member but there was no material on record to suggest that the amounts in question were payable in respect of any contract or work done for the gram panchayat. Therefore, the emphasis, while construing section 14(1)(g) of the Act of 1959 is a direct or indirect interest of the elected member in any work done by order of the gram panchayat or in pursuance of a contract of the KHUNTE ::: Uploaded on - 08/02/2019 ::: Downloaded on - 09/02/2019 02:29:22 ::: wp2000.18.odt 16/18 gram panchayat. In the present case, the petitioner had a clear interest in the development works carried carried out in a scheme, which was implemented by the gram panchayat itself. Once such a connection stood established by the award of works and contracts to husband of the petitioner and release of amounts in his favour for works done wherein the gram panchayat was the implementing agency, disqualification was clearly established against the petitioner.
18. There can be no quarrel with the proposition advanced on behalf of the petitioner that the rule of interpretation is that words of a statute must prima facie be given their ordinary meaning, for which reliance has been placed on judgment of the Hon'ble Supreme Court in the case of Harbhajan Singh v. Press Council of India and others (supra) but, in the very same judgment, reference has been made to the principle that Courts can adopt a purposive interpretation if they find that the statute read as a whole shows that a provision needs to be interpreted in furtherance of the purpose and object of the statute. In the present case, even a literal interpretation of section 14(1)(g) of the Act of 1959 and applying the same to the facts of the present case would show that the petitioner had indeed incurred disqualification. The interpretation being placed by this Court on the said provision is also in KHUNTE ::: Uploaded on - 08/02/2019 ::: Downloaded on - 09/02/2019 02:29:22 ::: wp2000.18.odt 17/18 consonance with the purpose and object of the statute. The learned counsel for the petitioner is also not justified in relying upon judgment of the Hon'ble Supreme Court in the case of Navjyot Singh Sidhu v. State of Punjab and another (supra) to contend that moral and ethical considerations ought not to be applied while interpreting a statute, because in the present case on a purely legal interpretation of the aforesaid provision and applying the same to the facts of the present case, it is found that the petitioner was correctly disqualified by the impugned orders passed by respondent Nos.1 and 2.
19. The contention raised on behalf of the petitioner to the effect that there was no wrong committed by the award of works to her husband because award of works by inviting bids and auction was necessary only for works involving expenditure of more than Rs.3,00,000/- is also without any substance. This is because, even if work is to be awarded involving expenditure of less than Rs.3,00,000/-, it cannot be awarded in such a manner that it would involve a conflict of interest and duty, as in the present case. If the contention raised on behalf of the petitioner is accepted, it would be very easy for an elected member or Sarpanch of the gram panchayat to award different parts of development works wherein expenditure KHUNTE ::: Uploaded on - 08/02/2019 ::: Downloaded on - 09/02/2019 02:29:22 ::: wp2000.18.odt 18/18 involved was less than Rs.3,00,000/-, to family members and then to claim that such a method of awarding works of the gram panchayat could not be called into question. The crucial issue in a case like the present one is that if the elected member indeed has a direct or indirect interest in the work done by order of the panchayat or in any contract awarded by the panchayat, the same would be directly in conflict with the duty of such an elected member if the work is awarded to a family member with whom he/she is living. In the present case, since the husband of the petitioner is directly benefited from the award of contracts and works, which were being undertaken by the order of the gram panchayat, it is a clear case of inviting disqualification under section 14(1)(g) of the Act of 1959. Therefore, it cannot be said that respondent Nos.1 and 2 committed any error in concurrently holding against the petitioner.
20. In the light of the above, the writ petition is found to be without any merit and it is accordingly dismissed. No order as to costs.
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