Bombay High Court
Ms. Shubhangi Anil Gawande vs The Additional Collector on 28 January, 2010
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 5151 OF 2007
1. Ms. Shubhangi Anil Gawande,
Major, Sarpanch, Gram Panchayat,
Mahuli (Dhande),
2. Mrs. Suman w/o Anna Gavai,
Major, Upsarpanch,
Gram Panchayat,
Mahuli (Dhande),
both residents of Post Mahuli
(Dhande), Tahsil - Daryapur,
District - Amravati. ... PETITIONERS
Versus
1. The Additional Collector,
Amravati.
2. Rajabhau Ramkrushna Sakhare,
aged 30 years, Member Gram
Panchayat, Mahuli (Dhande),
Tahsil - Daryapur,
District - Amravati.
3. Rajesh Ramdaspant Atalkar,
aged 32 years, r/o Mahuli
(Dhande), Tahsil - Daryapur,
District - Amravati.
4. Village Development Officer,
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2
Gram Panchayat Mahuli
(Dhande), Tahsil - Daryapur,
District - Amravati. ... RESPONDENTS
Smt. N.S. Jog, Advocate for the petitioners.
Shri V.A. Thakare, AGP for respondent No.1.
Shri A.J. Kadu, Advocate for respondents No. 2 & 3.
.....
CORAM : B.P. DHARMADHIKARI, J.
JANUARY 28, 2010.
ORAL JUDGMENT :
The Division Bench of this Court on 18th February 2008 while disposing of Letters Patent Appeal has requested this court to decide writ petition at the earliest by giving it priority.
Shri Kadu, learned counsel for respondents No. 2 & 3 has pointed out said order to this Court and accordingly by passing separate orders on 22.01.2010, writ petition was directed to be listed for final hearing.
2. The challenge in writ petition is to the order dated 24.10.2007 passed by the Additional Collector, Amravati, in ::: Downloaded on - 09/06/2013 15:33:25 ::: 3 Gram Panchayat Case No.3/Section 36/Mahuli Dhande/ 2006-07, Tah. : Daryapur. In that case, which started on an application under Section 36 of Bombay Village Panchayat Act, 1958 (hereinafter after referred to as the Act), filed by present respondents No. 2 & 3, the Additional Collector passed impugned order thereby disqualifying both the petitioners from continuing as Sarpanch or Upsarpanch of Gram Panchayat, Mahuli (Dhande). This Court has on 01.11.2007 while issuing notice, stayed that order and on 10.12.2007 while issuing rule in the matter, continued it.
3. Smt. Jog, learned counsel for the petitioners has invited attention to the provisions of Section 36 of Bombay Village Panchayat Act and of meeting rules framed thereunder to urge that mere not holding of a meeting as prescribed is not a disqualification. She has urged that there has to be absence of any just and sufficient reason for not holding of meeting and when holding of meeting is thus avoided or defeated, the Legislature has contemplated disqualification of Sarpanch.
::: Downloaded on - 09/06/2013 15:33:25 ::: 4Upsarpanch acts only in the absence of Sarpanch and hence until and unless there is a finding that Upsarpanch should have acted and held the meeting, for not holding any particular meeting, both Sarpanch and Upsarpanch cannot be disqualified. In this back ground, she has invited attention to the impugned order dated 24.10.2007 to show that the Additional Collector has not considered these basic ingredients of Section 36 of the Act and mechanically without appreciating the factual controversy before it, has disqualified both the petitioners. Even the reason of non availability of records with Sarpanch or absence of Secretary for conduct of meeting pressed into service by the petitioners has not been looked into. According to her, writ petition needs to be allowed.
4. Shri Kadu, learned counsel for respondents No. 2 & 3 as also Shri Thakare, learned AGP for respondent No.1, support the impugned order. Shri Kadu, learned counsel contends that the fact of not holding of meeting was placed on record by Respondents No. 2 & 3 and thereby they have also indirectly ::: Downloaded on - 09/06/2013 15:33:25 ::: 5 pointed out that as it was without just and sufficient reason, the disqualification was incurred by both the petitioners. He points out that both the respondents specifically pleaded that there was default in discharge of their duties by respective petitioners. He states that in this situation, perusal of impugned order reveals that necessary material was produced on record before the Additional Collector and after perusal of that record and application of mind thereto, the impugned order has been passed. According to him, in these circumstances, the impugned order is in accordance with law and calls for no interference.
5. Shri Thakare, learned AGP argues that though the reasons are not elaborately mentioned, necessary satisfaction has been recorded in the back ground of provisions of Section 36 of the Act and as quasi judicial authority like Additional Collector is not supposed to write a detailed order, the application of mind as evident therein, needs to be accepted as sufficient.
6. The provisions of Section 36 of the Act show that the ::: Downloaded on - 09/06/2013 15:33:25 ::: 6 obligation to convene meeting of Panchayat is contemplated upon Sarpanch & in his absence on Upsarpanch. Disqualification accrues for not convening such meeting without sufficient cause.
The finding of the Collector on question of availability of such sufficient cause has been made final. This, therefore, clearly shows that mere not holding of meeting is not disqualification and something more is required to be brought on record. The absence of meeting has to be shown as deliberate failure to hold meeting and for that purpose, it is required to be established that though meeting could have been held as required, it was not held. Thus, absence of sufficient cause for not holding the meeting is the material ingredient in the entire scheme.
7. In this background when the impugned order is perused, it reveals that originally both the petitioners were found disqualified for not holding the meeting in the month of February 2006. This order dated 24.10.2007 was later on corrected on 29.10.2007 by substituting the month of February by March. The relevant part of application under Section 36 of ::: Downloaded on - 09/06/2013 15:33:25 ::: 7 the Act moved by Respondents No. 2 & 3 shows that the meeting for March 2006 was not called by Sarpanch or in his absence by Upsarpanch. It is pleaded that as meeting was not called, there is default. The application, therefore, does not show that though the meeting could have been called, it was not held. The absence of any justification for not holding meeting is not pleaded. Even if it is not pleaded and the Collector is called upon to record a finding on the point of disqualification, Section 36 of the Act requires the Collector to find out whether the meeting of March 2006 could not be held for any valid reason.
The disqualification for not holding meeting in March 2006 can be either of Sarpanch or than of Upsarpanch. Normally for not holding one such meeting, both cannot be disqualified simultaneously. Respondents No. 2 & 3 have not pointed out that Sarpanch was not available in March 2006 and therefore the obligation had shifted on Upsarpanch. In the absence of such case, it is apparent that no action against Upsarpanch for not holding meeting of March 2006 could have been taken. If Respondents No. 2 & 3 wanted to contend that Upsarpanch was ::: Downloaded on - 09/06/2013 15:33:25 ::: 8 responsible, it is obvious that Sarpanch was absent and, therefore, only they are seeking action against Upsarpanch. In the absence of any clear plea in this respect in application itself, more responsibility was cast upon the Collector to find out the persons responsible for not holding such meeting.
8. The impugned order reveals that after stating the contents of the application and the reply filed by both the petitioners, the Additional Collector has reproduced a chart which shows the months from February 2006 to October 2006, the date on which notice of monthly meeting was issued, date of meeting, attendance in meeting etc. The chart shows that such meeting for the month of March 2006 has not been held. After this chart, the arguments of Respondents No. 2 & 3 are reproduced and then it is observed that counsel for present petitioners was remaining absent and delaying the disposal of the matter. The application of mind in this cryptic order is to be gathered, according to Shri Kadu and the learned AGP from very next para which states that after perusal of documents filed, ::: Downloaded on - 09/06/2013 15:33:25 ::: 9 reply of non applicants and report of monthly meeting filed by Secretary of Gram Panchayat and scrutiny of arguments of advocate for the applicants, it was revealed that monthly meeting for March 2006 was not held by non-applicants No. 1 & 2 i.e. present petitioners No. 1 & 2. Thus, the conclusion reached is that meeting was not held by Sarpanch as also by Upsarpanch. This conclusion reached itself shows that the ingredients of Section 36 of the Act or Scheme thereof has been lost sight of and mechanically both the petitioners have been found responsible for not holding the meeting. Thereafter the provisions of Section 36 of the Act are reproduced and operative order has been then written, thereby disqualifying both the petitioners. Again, the availability or otherwise of sufficient cause for not holding meeting of March 2006, is not looked into.
9. At this stage, it is necessary to note that both the petitioners have filed their common written statement before the Additional Collector and in para 4, they stated that the record of Gram Panchayat was in the custody of the Secretary Shri A.B. ::: Downloaded on - 09/06/2013 15:33:25 ::: 10 Gondane, who was suspended by order dated 07.03.2006 and whose Headquarter was ordered to be Panchayat Samiti, Anjangaon Surji. It has been stated that, therefore, for the entire month from 07.03.2006 to 07.04.2006, there was no Secretary in Gram Panchayat and accordingly notices could not be issued nor record could be procurred. Whether these facts are correct or incorrect and if correct, whether they constitute sufficient cause for not holding the meeting of March 2006 was required to be considered by the Additional Collector and this has not been looked into at all.
10. Shri Kadu, learned counsel has invited attention to reply affidavit filed by Respondents No. 2 & 3 before this Court particularly documents therewith to urge that Block Development Officer has certified that Shri Gondane was functioning from 25.08.2005 to 08.04.2006 at Gram Panchayat, Mahuli (Dhande). He further invites attention to cash book to show that entries for the period from 02.03.2006 till 07.04.2006 are recorded therein by Shri Gondane and it is signed by ::: Downloaded on - 09/06/2013 15:33:25 ::: 11 Sarpanch. He points out that new incumbent Shri Yadav has taken charge from Shri Gondane on 07.04.2006. It is to be noted that these documents cannot be appreciated by this Court for the first time. The petitioners had pleaded that Shri Gondane was placed under suspension and his Headquarters was Panchayat Samiti, Anjangaon Surji. This could have been disputed only before the Collector and a finding about correctness of such assertion could have been reached by the Additional Collector. Whether suspension was later on withdrawn and in what circumstances Shri Gondane has written the accounts or what is the implication of period of Shri Gondane certified by the Block Development Officer, are the questions which may have different answers. Hence, I am not in a position to accept the arguments of Shri Kadu that the reason for not holding meeting pressed into service by the petitioners is incorrect. That exercise ought to have been undertaken by the Additional Collector only.
11. The Additional Collector has thus not applied his mind ::: Downloaded on - 09/06/2013 15:33:25 ::: 12 to the factual aspect of the controversy and also the legal requirements of Section 36 of the Act. It is to be noted that Legislature has given finality to the decision of the Additional Collector on question whether or not there was sufficient cause for not holding the meeting. In view of this finality, it is clear that the absence of decision on said aspect by the Additional Collector, vitiates the entire exercise undertaken by him.
12. In this situation, it is apparent that the impugned order cannot sustain and same is, therefore, quashed and set aside. The application filed by present Respondents No. 2 & 3 before the Additional Collector is dismissed. Writ Petition is disposed of. Rule accordingly. However, in the facts and circumstances of the case, there shall be no order as to costs.
JUDGE ******* *GS.
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