Bombay High Court
Laxmibai Yadavrao Panchal vs The Additional Collector And Others on 5 May, 2016
Author: Sunil P. Deshmukh
Bench: Sunil P. Deshmukh
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.8668 OF 2015
Laxmibai Yadavrao Panchal PETITIONER
Age - 56 years, Occ - Sarpanch,
Grampanchayat Sugaon (Kh)
R/o Sugaon (Kh), Taluka - Mukhed
District - Nanded
VERSUS
1.
The Additional Collector
Nanded, District - Nanded
RESPONDENTS
2. The Block Development Officer,
Panchayat Samiti, Mukhed
Taluka - Mukhed, District - Nanded
3. The Gramsevak,
Grampanchayat, Sugaon (Kh)
Taluka - Mukhed, District - Nanded
4. Sow. Laxmibai w/o Hanmant Shrimangale
Age - 40 years, Occ - Up Sarpanch
Gram Panchayat, Sugaon (Kh)
R/o Sugaon (Kh), Taluka - Mukhed
District - Nanded
5. Sow. Haryabai w/o Ganpat Pole,
Age - 40 years, Occ - Member
Gram Panchayat, Sugaon (Kh)
R/o Sugaon (Kh), Taluka - Mukhed
District - Nanded
6. Arjun s/o Shankar Waghmare
Age - 35 years, Occ - Member
Gram Panchayat, Sugaon (Kh)
R/o Sugaon (Kh), Taluka - Mukhed
District - Nanded
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.......
Mr. U. B. Deshmukh, Advocate for the petitioner
Mr. S. K. Tambe, AGP for respondent-State
Mr. K. B. Jadhav, Advocate for respondent No.3
Mr. V.D.Salunke h/f Mr.P.B. Rakhunde, for respondents No.4 to 6
.......
[CORAM : SUNIL P. DESHMUKH, J.]
DATE : 5th MAY, 2016
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith and heard finally with consent of learned advocates for the parties.
2. The petitioner is before this court aggrieved by decision dated 4th August, 2015 given by Additional Collector, Nanded in proceedings bearing File No.2015/GB/Desk-1/GP Rules/Appeal-
27, whereunder dispute instituted by present respondents No.4 to 6 has been allowed and the petitioner has been declared as disqualified for breach of provisions of sections 7 and 36 of the Maharashtra Village Panchayats Act, 1958 (hereinafter referred to as "MVP Act") for not holding gram sabhas and monthly meetings of the Gram Panchayat, Sugaon (khurd), Taluka -
Mukhed, District - Nanded without sufficient cause.
3. The petitioner has been elected as Sarpanch of gram panchyat Sugaon (khurd), and had been working as such since ::: Uploaded on - 17/05/2016 ::: Downloaded on - 30/07/2016 01:04:16 ::: {3} wp8668-15 17th December, 2012.
4. On 30th March, 2015, a dispute as referred to above, had been lodged by respondents No.4 to 6 contending that it was incumbent and mandatory to hold four gram sabhas in a financial year pursuant to section 7 of the MVP Act. Accordingly, first gram sabha is necessary to be held in April / May, second on 15th August, i.e. on Independence Day, third between November 20th and 24 and the fourth on 26 th January i.e. on Republic Day.
Failure to hold any one of the gram sabha, entails disqualification of Sarpanch for the remainder of the term of election. According to section 36 of the MVP Act, it is mandatory to hold twelve monthly meetings of gram panchayat and breach in holding any one would also entail disqualification of Sarpanch for the remainder of the term. It has been alleged in the Dispute that since the date of assumption of charge as Sarpanch by the petitioner, development of the village has been stagnated, no developmental work has been going on, none of the development schemes are operational and that despite request by the disputants - respondents No.4 to 6, for holding gram sabhas and monthly meetings, those have not been held by the petitioner - Sarpanch and in the process, there is contravention of mandatory provisions of sections 7 and 36 of the MVP Act. As ::: Uploaded on - 17/05/2016 ::: Downloaded on - 30/07/2016 01:04:16 ::: {4} wp8668-15 such, it was requested that the petitioner be declared as disqualified for holding onto the post of Sarpanch for the balance of the term. It has further been alleged that bogus record has been created in respect of holding of gram sabhas. Nor does the record give full particulars of the resolutions passed. According to the allegations, in the proceedings of monthly meetings, save and except minutes of last meeting to be recorded, no resolution has been passed and that the citizens have been misled under preparation of bogus record and they have been kept away from developments. It has further been alleged that despite withdrawal of amount for the purpose of construction of "sulabh shouchalaya" (public conveniences) yet the same have not been constructed and construction of Anganwadi building has been of inferior quality and an inquiry would reveal that there is corruption in the same. As such, a relief by way of declaration has been claimed about disqualification of the petitioner from the position of Sarpanch for failure to hold gram sabhas and monthly meetings of gram panchayat.
5. A notice, upon lodging of the dispute came to be issued from the office of Additional Collector, Nanded intimating that proceedings have been initiated for non-holding of gram sabhas and monthly meetings and to appear before the authority along ::: Uploaded on - 17/05/2016 ::: Downloaded on - 30/07/2016 01:04:16 ::: {5} wp8668-15 with requisite documents, material / record and say.
6. The petitioner, in response to the dispute, had submitted that for the financial year 2012-13 gram sabhas and monthly meetings have been held. Gram sabhas were held on 1st January, 2013, 26th January, 2013 and 8th March, 2013. The concerned register bears signatures of the disputants - respondents No. 4 to 6. Record in respect of monthly meetings is in possession of Gram Sevak. In financial year 2013-14 also, gram sabhas and monthly meetings have been held by the petitioner. Gram sabhas were held on 1st May, 2013, 15th August, 2013, 2nd October, 2013, 26th January, 2014 and 8th March, 2014. Gram sabha had been held on 2nd October as per the instructions in respect of the same. As far as financial year 2014-15 is concerned, all gram sabhas and monthly meetings have been held by the petitioner. Gram sabhas were held on 25th May, 2014, 15th August, 2014, 2nd November, 2014 and 26th January, 2015 and necessary procedural requirements for the same have also been complied with.
7. The petitioner has denied that all the development schemes have been stagnated after she assumed charge as Sarpanch. According to her, as a matter of fact, it is other way ::: Uploaded on - 17/05/2016 ::: Downloaded on - 30/07/2016 01:04:16 ::: {6} wp8668-15 round, the disputants themselves have not been carrying out any developmental work in their wards and that the petitioner had been holding gram sabhas and monthly meetings, as required and the necessary record bears signatures of the disputants. It is contended that since the petitioner had brought to the notice of the authorities certain encroachments by one of the disputants, which might incur his / her disqualification, to counter blast the same, present dispute has been initiated. It has been contended that allegation with regard to bogus record is not correct and that can be verified by the authorities. It has further been contended that allegations of corruption with regard to construction of "sulabh shouchalaya", are without any basis and are vacuous. It has been contended that the dispute contains misleading averments. The disputants themselves have been signatories to the proceedings in respect of concerned meetings, despite that the disputants purport to allege that the petitioner has kept the village away from development. Said allegations are baseless, nothing of the sort has ever been complained of before, to appropriate authorities.
8. It has been contended that allegations with regard to non holding of gram sabhas and monthly meetings are absolutely baseless and false. It has been specifically contended that there ::: Uploaded on - 17/05/2016 ::: Downloaded on - 30/07/2016 01:04:16 ::: {7} wp8668-15 are no specific allegations about non holding of any particular gram sabha or monthly meeting and the allegations have not been supported by any material.
9. It has further been contended that pursuant to the provisions of section 38 (6) of the MVP Act, in fact, the disputants themselves are guilty of dereliction of duty and are making wayward allegations against the petitioners. The respondents have not performed their duties properly and allegations have been hurled at the petitioner.
10. In the response, the petitioner has specially emphasized two grounds for which according to her, the proceedings initiated against her, are improper and must fail.
A. There is failure to afford an opportunity by issuing a notice enabling her to state or give explanation and cause for alleged failure to hold meeting. For said purpose she has relied upon a judgment in case of "Pratibha Sanjay Hulle Vs. Additional Collector and Others" reported in 2010 (4) All MR 728 :2010 (4) Bom.C.R. 700.
B. Another is with reference to circular dated 18 th November, 1972 with reference to recommendations 186 and 187 of Bongirwar Committee that in case of failure to hold a gram ::: Uploaded on - 17/05/2016 ::: Downloaded on - 30/07/2016 01:04:16 ::: {8} wp8668-15 sabha an opportunity is required to be given to the Sarpanch to explain sufficient cause for the same and that whether the Sarpanch has held gram sabha or not should be verified by Block Development Officer. Compliance of the circular, is binding, is mandatory and is material and would matter, is absent in the present case.
11. As such, having regard to the facts and circumstances and the decisions holding the field, the dispute being false, frivolous and fraudulent should fail and should be dismissed.
12. It appears that the Gram Sevak - respondent No.3 herein, had, under a letter dated 13th May, 2015 to Additional Collector-
respondent No.1 herein, purportedly submitted along with the same, original monthly meeting notice register, monthly meeting attendance register, gram sabha proceedings/minutes book and had purportedly communicated that rest of the registers viz., monthly meeting proceeding book, gram sabha notice register, gram sabha attendance register etc. are with Sarpanch and that despite requests from time to time, the same have not been provided. For said purpose, he refers to two purported communications dated 29th September, 2014 and 15th April, 2015, photo copies of the same had been appended along.
::: Uploaded on - 17/05/2016 ::: Downloaded on - 30/07/2016 01:04:16 :::{9} wp8668-15 In the letter dated 29th September, 2014, addressed to the Block Development Officer - Class 1, Panchayat Samiti, Mukhed, the Gram Sevak has complained of that save Form No.8 register, he had not received other record viz., Gram Panchayat pass book, cheque book, Kird, measurement book / Parimanake book, which are with the Sarpanch and those have not been provided despite requests from time to time and as such, it has become difficult for him to submit monthly reports and had requested to direct the Sarpanch to give requisite record.
Another communication dated 15th April, 2015 (This is subsequent to filing of dispute) also makes a similar request.
However, on this occasion it is added that he had not received monthly meeting, gram sabha, gram panchayat accounts and transactions. As such, report in respect of the same could not be submitted, for Sarpanch and the former Gram Sevak, despite requests from time to time, had not provided the same.
Under said letter dated 13th May, 2015, he purports also to communicate that certain monthly meetings have been held, which are appearing at pages 35-37 of the record before the Additional Collector.
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13. The Additional Collector - respondent No.1 in his impugned decision dated 4th August, 2015, has referred to the allegations as are appearing in the dispute and the response to the same being given by the petitioner and has particularly referred to that it is being contended by the petitioner that gram sabhas have been duly held, including in the financial year 2014-15.
14. The Additional Collector in the impugned order has referred to that the petitioner has referred to Bongirwar Committee recommendations appearing at serial No.186 and 187, wherein it is incumbent to give opportunity to the Sarpanch to offer an explanation for not holding meetings and that holding or non holding gram sabhas should be got verified from Block Development Officer. A notice is a must to the Sarpanch calling upon to him to explain and give cause as to why gram sabhas and monthly meetings, in the financial year, have not been held and the proceedings have been initiated without giving such an opportunity to the petitioner and as such, proceedings are improper.
15. The Additional Collector has also referred to that the petitioner had produced in support of her case, communications dated 9th March, 2015, 8th May, 2015 and 30th June, 2015 and ::: Uploaded on - 17/05/2016 ::: Downloaded on - 30/07/2016 01:04:16 ::: {11} wp8668-15 has also produced photo copies of gram sabha notice register, gram sabha attendance register and gram sabha proceedings book.
16. It appears that while taking into account the registers, the Additional Collector has taken into account in clause 1 of the impugned order at page 58 as given under the table, dates of monthly meetings and the attendance register as well as record in respect of gram sabha up to 15th August, 2014. It has adverted to that under letter dated 9th March, 2015, the petitioner has requested for proceeding register of gram sabhas, notice register of monthly meetings, monthly meeting attendance register etc. and further with reference to letter dated 30th June, 2015 it has been noted that the Sarpanch has reported that he has not been provided with concerned record.
However, it appears to have been only considered that under the communications referred to above, dated 29th September, 2014 and 15th April, 2015, the Gram Sevak had requested for certain record.
17. Under clause 7 of the impugned order it has been considered from the record, which had been submitted by the Gram Sevak, under letter dated 13th May, 2015, it does not ::: Uploaded on - 17/05/2016 ::: Downloaded on - 30/07/2016 01:04:16 ::: {12} wp8668-15 appear that gram sabhas in compliance of section 7 of the MVP Act had been held in every financial year.
18. In clause 8, the Additional Collector appears to have considered that pursuant to communication dated 13 th May, 2015 made to him, proceedings of monthly meeting register has been contended to be with Sarpanch. In clause 9, it has been considered that the petitioner has submitted record in respect of holding of gram sabhas, however, has not submitted record in respect of monthly meetings. In clause 10, it has been particularly observed that for January, February and March, 2015, there is no record adduced by the parties of holding monthly meetings. Further, it has been noticed by him that pursuant to communication dated 8 th March, 2015, it had been demanded by Sarpanch to change the Gram Sevak. In clause 10 (second), purportedly, it has been adverted to that it has been contended on behalf of the petitioner that there ought to have been notice to the petitioner before proceeding with for alleged failure to hold gram sabhas and monthly meetings and that holding or not holding of gram sabha should have been got verified from the Block Development Officer, having regard to the recommendations of Bongirwar Committee and petitioner ought to have been given opportunity to show cause in respect of ::: Uploaded on - 17/05/2016 ::: Downloaded on - 30/07/2016 01:04:16 ::: {13} wp8668-15 allegation about non holding of gram sabhas and monthly meetings. In clause 11, the Additional Collector, however, purports to consider that according to the record, as has been submitted by the Gram Sevak, after getting elected the petitioner had failed to hold gram sabhas and monthly meetings without sufficient cause purporting to consider that the petitioner had been given ample opportunity and as such, there does not appear to be any substance in contention about not getting opportunity to explain her case.
19. The Additional Collector has also noticed that it is only in written submissions, allegations have been confined to non holding of particular gram sabhas and monthly meetings viz., two gram sabhas of the financial year 2014-15, the ones after August, 2015 and meetings for the months January, February and March, 2015. As such, the allegations had been narrowed down in respect of these five meetings - two gram sabhas and three monthly meetings, in the year 2014-15.
20. The Additional Collector went on to pass the impugned order declaring the petitioner to be disqualified for failure to hold gram sabhas, monthly meetings, pursuant to section 7 and 36 of the MVP Act without sufficient cause.
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21. Learned advocate Mr. U. B. Deshmukh appearing for the petitioner vehemently submits that allegations with reference to breach of sections 7 and 12 of the MVP Act have been vague and uncertain in nature. It had never been made known to the petitioner at any time about holding of which specific meeting the petitioner had faltered.
22. In the circumstances, the allegations could not be specifically met with for non-availability or even cannot be said to have afford proper chance to explain the situation. In any case, according to learned advocate, initiation of proceedings itself had been defective for non affording opportunity and not giving chance as per the requirements under the circular which are binding on the authorities. Proceedings were straight away initiated on vague and uncertain allegations, which in fact, should not have been taken up by the Additional Collector and even notice by his office ought not to have been issued.
23. According to learned counsel, even the summons / notice only required the petitioner to respond to and present herself before the authority with necessary details and record, without giving any inkling as to in respect of which charges she is required to give response, save and except vague reference to ::: Uploaded on - 17/05/2016 ::: Downloaded on - 30/07/2016 01:04:16 ::: {15} wp8668-15 that dispute has been initiated against her for breach of sections 7 and 36 of the MVP Act. The notice did not give any further information. Even copy of dispute had not been supplied along with notice.
24. On appearance also, she could not gauge from the dispute that she had been summoned in respect of any allegation of failure of holding specific gram sabhas and monthly meetings pursuant to section 7 and 36 of the MVP Act. He submits that in such a case, it was impossible for her to meet any specific charge and to tender any explanation or show cause.
25. He submits, as such, the petitioner responded to the same emphatically contending that for want of specific charges and for absence of notice with due information in respect of specific allegations, proceedings should fail. She had further taken specific ground that prevailing legal position entails an explanation being called by the authorities before the proceedings could have been taken cognizance of. Such an opportunity having not been made available, the whole proceedings have been rendered untenable, illegal, void and are nullity.
26. He submits that as a matter of fact, the record depicts that ::: Uploaded on - 17/05/2016 ::: Downloaded on - 30/07/2016 01:04:16 ::: {16} wp8668-15 four gram sabhas in every financial year have been duly held including in the year 2014-15. The petitioner cannot be faulted with pre-poning one of the meeting under the directions of government officials and holding the same in October instead of November. It was not that the petitioner had failed to hold meeting in November.
27. Mr. Deshmukh, learned advocate submits that perusal of the impugned order would show that it was only in written submissions, allegations with regard to some specific meetings have been made. This has surfaced upon decision been given by the Additional Collector - respondent No.1. It has been made known for the first time that it is being alleged that, gram sabhas of November, 2013, November, 2014 and 26 th January 15 have not been held and also monthly meetings of January, February and March, 2015 have not been held.
28. He submits that it has been referred to in the response that in the financial year 2013-14, gram sabhas and monthly meetings have been held by Sarpanch. He submits that gram sabha of November, 2013 had been pre-poned to 2 nd October, 2013 as per directions of the officials. In financial year 2014-15, gram sabhas were held on 25th May, 2014, 15th August, 2014, 2nd ::: Uploaded on - 17/05/2016 ::: Downloaded on - 30/07/2016 01:04:16 ::: {17} wp8668-15 November, 2014 (20th November, 2014 as per page 295 of the record), 26th January, 2015 and 8th March, 2015. The impugned order also makes reference to the contentions of the petitioner about holding of monthly meetings in January, February and March, 2015 and that Gram Sevak has not been performing his duty, was not remaining present in the village and as such, change had been sought, reporting to concerned higher officer at Zilla Parishad / Government levels.
29. Photo copies of certain record, which has been appended to the writ petition, as has been relied upon for said purpose, which according to learned advocate for petitioner depicts holding of gram sabhas in November, 2014 and January, 2015 and three monthly meetings of January, February and March 2015.
30. Learned advocate submits that record had been made available before the Additional Collector, however, in paragraph No.10 of the impugned order, it has been observed that neither the disputants nor the petitioner has filed any record with reference to the monthly meetings of January, February and March, 2015, but has referred to a letter to Block Development Officer, Panchayat Samity, Mukhed by the petitioner that Gram ::: Uploaded on - 17/05/2016 ::: Downloaded on - 30/07/2016 01:04:16 ::: {18} wp8668-15 Sevak has not been performing his duty, not taking the petitioner in confidence and as such, change had been sought.
Intriguingly, it has been deduced that communication dated 9 th March, 2015 is an indication of non holding of monthly meetings.
31. Learned advocate vehemently submits that observations in last sub paragraph of paragraph No.10 of the impugned order have been made without appreciation of full purport, effect and operation of the circular and the recommendations of Bongirwar Committee and yet respondent No.1 purports to consider that more than sufficient opportunities ( iqjsiwj) have been given to the petitioner. He submits that it is difficult to appreciate, by any perspective, as to how summons and the further proceedings which have taken place would satisfy the requirement of an opportunity to explain or for giving sufficient cause for non holding of meetings. It is submitted that had the opportunity come petitioner's way, she could have definitely, adequately, suitably and properly dealt with the situation and explained that all the meetings have been held.
32. Learned advocate Mr. Deshmukh submits, law requires that four gram sabhas are to be held and twelve monthly meetings have to be held. He submits that required number of meetings ::: Uploaded on - 17/05/2016 ::: Downloaded on - 30/07/2016 01:04:16 ::: {19} wp8668-15 viz., gram sabhas and monthly meetings have been held in each of the financial year. The requirement under the provisions of sections 7 and 36 of the MVP Act is not to hold meetings on specific dates, but is to hold four gram sabhas and twelve monthly meetings in a financial year and the record adequately and more than sufficiently satisfies aforesaid requirements of the two provisions of the MVP Act.
33. Learned advocate submits that allegations, till the decision had come from the Additional Collector, had been vague and nonspecific. It was incumbent and imperative to be specific about allegations in order to let other side have an idea of allegations against them. It should be considered that all the monthly meetings or for that matter all the gram sabhas were held as per law.
34. Learned advocate points out that the allegations had narrowed down to some meetings, which for the first time were referred to in the written notes of arguments of the disputants and not any time before. Learned advocate for the petitioner submits that as referred to hereinabove earlier this has also been surfaced only upon decision of Additional Collector the first time.
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35. Learned advocate submits that on proper verification of the record, it would emerge that requisite four gram sabhas have been indeed held. So also the requisite monthly meetings. He submits that papers annexed to the writ petition sufficiently bear out holding of monthly meetings of January, February and March, 2015 and two gram sabhas of November 2014 and January, 2015. Said papers have been available on the record before the Additional Collector, however, have not received due attention of the Additional Collector.
36. In support of his submissions, he places reliance as referred to in the response to the dispute on Pratibha Hulle's case (supra), which according to him although has been specifically referred to and relied upon in the dispute, has not been taken into account by the Additional Collector.
37. He, further refers to a decision rendered by Hon'ble Single Judge of this court in writ petition No.3419 of 2013 in case of "Sunil Daulat Patil Vs. State of Maharashtra and Others", which has followed Pratibha Hulle's (supra) case. According to learned advocate, decision in Sunil Patil's case (supra) applies on all fours to the matter.
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38. He submits, as a matter of fact, notice as has been received from the office of Additional Collector to the petitioner therein had been more specific than the vague and uncertain notice as has been received at the end of the petitioner in respect of proceedings of dispute before the present Additional Collector.
Notice, which was received in Sunil Patil's case (supra) read 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-"
Whereas notice now received at the petitioner's end in present case reads thus -
"foÔ;kafdr fooknkr fooknhus ljiap ;kauh fu;ekuqlkj xzkelHkk o ekfld ::: Uploaded on - 17/05/2016 ::: Downloaded on - 30/07/2016 01:04:16 ::: {22} wp8668-15 lHkk u ?ksrY;keqGs R;kauk ljiap inkoj jkg.;kl vugZ Bjfo.;kckcr dsysY;k fouarhuqlkj izdj.kkph lquko.kh fnukad 13@05@2015 jksth nqikjh 02]00 oktrk ek- vij ftYgkf/kdkjh] ukansM ;kaps le{k gksbZy-
vki.kkl dGfo.;kr ;srs dh] fooknkP;k vuq Ôaxkus vki.kkl dkagh ys[kh dkenksi+=h iqjkos lknj djko;kps vlY;kl] dken=kP;k lR; [email protected] izfr o vkiys Eg.kus ys[kh vFkok rksaMh oj ueqn rkj[ksl] ek- vij ftYgkf/kdkjh ;kaps le{k lknj djkos- lwuko.khP;k rkj[ksl Lor% fdaok odhyk ekQZr gtj u >kY;kl] vki.kkal fooknk ckcr dkagh lkaxko;kps ukgh vls letwu miyC/k dkxni=kP;k vk/kkjs fu.kZ; fnyk tkbZy"
39. The Additional Collector, according to learned advocate for the petitioner, has failed to appreciate the rationale and dictum of the authorities cited and for that matter has been oblivious of the same. As such, the impugned order is silent in this respect.
40. According to the petitioner Bongirwar Committee's recommendations were absolutely essential to be followed by the respondents. However, in the present case, it is not that any such procedure, according to Bongirwar Committee's recommendations had been followed.
41. Learned advocate for the petitioner submits that the action initiated against the petitioner seeking her disqualification for alleged non compliance with the requirements of holding gram sabhas under section 7 and monthly meetings under ::: Uploaded on - 17/05/2016 ::: Downloaded on - 30/07/2016 01:04:16 ::: {23} wp8668-15 section 36 of the MVP Act, ought to have resulted into its dismissal on facts as well as in law.
42. Learned advocate Mr. V. D. Salunke leading the arguments for respondents at the outset makes it clear that the dispute is confined to that only two gram sabhas are held in 2014-15 and monthly meetings have not been held in January, February and March 2015 and that therefore, the petitioner stands disqualified for violation of mandatory requirements and tenders across a synopsis depicting the same.
43. He submits that while notice had been issued from the office of the Additional Collector, the same had been with sufficient indication that the petitioner was being imputed of failure to hold gram sabhas and monthly meetings.
44. According to learned counsel, if gram sabhas and monthly meetings are to be held, the same are supposed to be held in accordance with the Bombay Village Panchayats (Gram Sabha Meeting) Rules, 1959 and the Bombay Village Panchayats (Meeting) Rules, 1959. As such, it was incumbent on the petitioner to show that gram sabhas and monthly meetings as required under the Rules had been held every financial year.
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45. He submits that Rule 3 (1) of the Bombay Village Panchayats (Gram Sabha Meeting) Rules, mandates holding of first meeting of gram sabha in every financial year within two months from commencement of that year and second meeting shall be held in November, every year on such date and time as may be fixed by Sarpanch. Rule 3 (2) of the Rules requires holding of two more meetings, one in the month of August and the other on 26th January. He submits that when there is allegation of not holding gram sabhas, it was for the petitioner to show that gram sabhas, pursuant to the Rules had in fact been held. The burden, which is placed under the rules should have been discharged by the petitioner, which she failed to do.
46. He submits that similar is the case in respect of monthly meetings, which are to be held in accordance with Bombay Village Panchayat (Meeting) Rules and the petitioner has not been able to establish that the meetings, pursuant to said Rules have been in fact held every month, particularly in the months of January, February and March, 2015 fairly confining his allegations to these meetings only.
47. In the present proceedings, he submits that, therefore, the contention of the petitioner that she had no notice nor any show ::: Uploaded on - 17/05/2016 ::: Downloaded on - 30/07/2016 01:04:16 ::: {25} wp8668-15 cause notice had been received with specific allegations, is unfounded and an evasive one.
48. Mr. Salunke submits that the procedure as is contended by learned advocate for the petitioner that a preliminary inquiry ought to have been conducted pursuant to the recommendations No.186 and 187 of the Bongirwar Committee, was not called for having regard to that the authority concerned proceeded with the same giving ample opportunity to the petitioner to show that there was sufficient cause for not holding meetings.
49. In the present matter, according to him, since the proceedings have been initiated at the instance of respondents No. 4 to 6 as the proceedings for disqualification before the authorities, as required under the law, the authorities have inquired into the matter affording sufficient chances and opportunity to the petitioner to show cause as to why the concerned meetings could not be held.
50. He submits that the petitioner has not been able to explain the lapses and / or failure to hold concerned meetings with any plausible explanation or material.
51. Learned advocate submits that even a single default in ::: Uploaded on - 17/05/2016 ::: Downloaded on - 30/07/2016 01:04:17 ::: {26} wp8668-15 holding either gram sabha or monthly meeting would incur disqualification under the statute. Since the petitioner having failed to show sufficient cause for not holding the meetings, she stands disqualified.
52. Mr. V. D. Salunke, learned advocate for respondents No. 4 to 6 submits that it emerges from the impugned decision that there has been failure on the part of the petitioner to hold requisite number of gram sabhas and monthly meetings.
53. He submits that in the present matter, the impugned order makes it clear that the petitioner had been afforded ample opportunity to explain and show sufficient cause for failure to hold gram sabhas or for that matter monthly meetings and it has been found by the Additional Collector that there is failure of the petitioner to hold monthly meetings, particularly of January, February and March, 2015 and the gram sabhas.
54. The Additional Collector has found that there is lapse / failure on the part of the petitioner to hold requisite statutorily mandatory meetings - gram sabhas as well as monthly meetings. The decision reached with reference to the record, as has been placed before the authority, would not be amenable to be faulted with. Disqualification in the process, has been ::: Uploaded on - 17/05/2016 ::: Downloaded on - 30/07/2016 01:04:17 ::: {27} wp8668-15 incurred by the petitioner.
55. He submits that for non compliance with the requirements of mandatory provisions, particularly section 7 of the MVP Act in respect of gram sabhas and section 36 of the MVP Act in respect of monthly meetings, the petitioner statutorily stands disqualified and as such, it has been held so under the impugned order.
56. Learned advocate for the respondents has canvassed a submission that three monthly meetings, contentedly convened by the petitioner with reference to the documents as have been annexed to the writ petition, cannot be said to be meetings, having regard to the provisions of sub section (11) of section 7 of the MVP Act, wherein it is required that proceedings of every meeting of gram sabha shall be prepared and maintained by concerned secretary of Gram Panchayat and in his absence, the proceedings shall be prepared by any Government, semi-
government or Panchayat employee working in the village. Such procedure having not been followed, it cannot be considered to be meetings, as required under the Rules. However, it will have to be considered that such a requirement does not appear to be under section 36 of the MVP Act, which concerns monthly ::: Uploaded on - 17/05/2016 ::: Downloaded on - 30/07/2016 01:04:17 ::: {28} wp8668-15 meetings.
57. Mr. V. D. Salunke, learned advocate for respondents No. 4 to 6 in support of his contentions that a single default in holding monthly meeting will incur disqualification, relies on two judgments of Hon'ble Single Judges of this Court one in case of "Jijabai Bapurao Zingare Vs. State of Maharashtra and Others" reported in 2009 (2) Bom.C.R. 681, wherein the Sarpanch had incurred disqualification for not holding meetings observing thus -
"10. Turning to the case on hand, I have heard learned counsel for the parties. Gram Sevak Shri Khule is present in the Court. He has made available original proceeding books and Gram Sabha books. Learned AGP has made available this record to learned counsel for respective parties for perusal. They have examined these books. Factually, there is no Gram Sabha in April/May 2007. Now, I am not repeating the importance of first Gram Sabha. We have no concern with Gram Sabha of April / May 2006 for the reason that Sarpanch in the case on hand was elected on 27.7.2006. Factually, monthly meeting of August 2006 was not held by the petitioner. Finding recorded by the learned Additional Collector on these two points even on examining the original proceedings cannot be said to be illegal or perverse."
58. According to him, so is the case in the matter of "Nanasaheb Dhondiram Mundhe Vs. Additional Collector and Others" reported in 2010 (4) Bom. C.R. 823. Wherein it has been considered that unless sufficient cause is shown by Sarpanch for holding less number of gram sabhas, disqualification would follow if the Sarpanch does ::: Uploaded on - 17/05/2016 ::: Downloaded on - 30/07/2016 01:04:17 ::: {29} wp8668-15 not offer any explanation of failure to hold required number of gram sabhas, observing thus -
"17. So far as fact situation in the present case is concerned, it is undisputed that for the year 2005-2006, only two Gram Sabha meetings were held. In the year 2006-2007, only five Gram Sabha meetings were held. There was shortfall of four such meetings in the first year 2005- 2006 and there was shortfall of one such Gram Sabha meeting in the year 2006-2007. The petitioner did not offer any explanation for omission to convene the required number of Gram Sabha meetings. His written statement (Ex-C), in fact, does not contain any sufficient explanation. He simply denied the contents of the relevant paragraph of the application. He attributed ill-will to the respondents No. 3 to 8. In fact, had he sufficiently explained the lapses, the Collector could have been called upon to consider such explanation. Needless to say, the fact remains that there was no explanation given by the petitioner in his written statement about omission to hold the required number of Gram Sabhas. It is true that he took over as Sarpanch in the midst of the year 2005-2006. As stated earlier, there was no prohibition imposed to conduct the subsequent meetings during the relevant period after his taking over as Sarpanch. Moreover, he could have explained that he was not required to conduct certain meetings prior to his taking over as Sarpanch due to the reason that he was not in the office or had faced certain difficulties in conducting the meetings after his taking over. Nothing of the sort was done by him."
59. Thus, it emerges that these are the cases with reference to no explanation at all being given or there was no assertion about holding or not holding of meetings or for that matter given any semblance of explanation nor there was any contention with ::: Uploaded on - 17/05/2016 ::: Downloaded on - 30/07/2016 01:04:17 ::: {30} wp8668-15 regard to opportunity to the person as required under the Rules nor Bongirwar Committee's recommendations had even been adverted to. As such, both aforesaid citations on facts are distinguishable and would not be able to govern the present situation.
60. Learned advocate for the respondents submits that reliance being placed on Hulle's case (supra) may not be proper for, said decision may not qualify to be considered as a "judgment", since it does not answer the term "judgment" as defined under section 2 (9) of the Civil Procedure Code, which defines a judgment to be a statement given by a judge on the grounds of a decree or order, wherein the court would have to take into account the facts pleaded and ascertain provisions of law applicable to those facts in order to find out whether the relief claimed on the basis of those facts can be granted or not.
According to him, this has been considered by division bench of this court in case of "All India Central Bank Employees Congress and Others Vs. Central Bank of India" reported in 2007 (4) ALL MR 217 and in writ petition No.7052 of 2013 decided on 12 th September, 2013 in case of "Mohan Hari Paithankar Vs. Manager Jankalyan Urban Co-
operative Credit Society Ltd.,". He contends to that since there is no reference to the contentions and averments of the respondents, ::: Uploaded on - 17/05/2016 ::: Downloaded on - 30/07/2016 01:04:17 ::: {31} wp8668-15 in Hulle's case (supra), it cannot be considered to be a sound decision.
61. Learned advocate for respondents further relies on a division bench judgment in case of "Gunwantrao Yeshwantrao Deshmukh Vs. State of Maharashtra and Another" reported in 1981 Mh.L.J.815 wherein it has been considered that failure to convene meeting without sufficient cause, disqualification is automatic even if default is of a single meeting. The case appears to have been with reference to section 36 of the MVP Act, wherein it has been considered that single default to hold monthly meeting would entail disqualification. While in the present case the written submissions have narrowed down allegations against the petitioner in respect of holding of only three monthly meetings in January, February and March, 2015 and according to the petitioner, she has given explanation, which has been overlooked and not at all been taken into account and considered by the Additional Collector.
62. Learned advocate refers to a decision dated 27 th March, 2014 in writ petition No.10216 of 2013 in case of "Ganesh Tolaji Gore Vs. the Additional Collector, Nanded and Others". In said case, the Hon'ble single judge has sent the matter back for ::: Uploaded on - 17/05/2016 ::: Downloaded on - 30/07/2016 01:04:17 ::: {32} wp8668-15 reconsideration, wherein allegation was that the petitioner had desired an opportunity to make submissions and canvass points before Additional Collector. Similarly, the respondents were also to rely on certain notices and meetings. However, said case on facts appears to be different and may not have any nexus with the facts of the present case.
63. Hon'ble Single Judge in Sunil Patil's case (supra), with reference to notice in that case had considered that there is no mention of specific charges which are required to be answered by the petitioner therein. In the circumstances the petitioner could not produce proceedings of the monthly meetings and of gram sabhas conducted by her. Additional Collector, had passed order holding the petitioner to be disqualified, which was questioned in the writ petition before this Court. Opposing advocate in said writ petition had relied on the judgment of division bench in case of Gunwantrao Deshmukh (supra) and in case of "Nanasaheb Dhondiram Mundhe Vs. Additional Collector and Others"
reported in 2010 (4) Bom. C.R. 823, as are pressed into service in the present matter as well. Hon'ble Single Judge has referred to in the judgment thus -
"to enable Sarpanch to raise proper defence and explain sufficient cause for his failure to perform any statutory function, he must be informed ::: Uploaded on - 17/05/2016 ::: Downloaded on - 30/07/2016 01:04:17 ::: {33} wp8668-15 essentially as regards his failure meaning thereby he must be communicated the specific charges".
64. The court, on considering that allegations in the case against the petitioner where Sarpanch had not performed his statutory obligation under sections 7 and 36 of the MVP Act of holding gram sabhas and monthly meetings, had unequivocally and clearly considered that since there are no specific charges levelled so as to enable the petitioner to answer in his defence, and had followed the ratio in Pratiba Hulle's case (supra) holding that decision of Additional Collector stood vitiated for non compliance to basic principles of natural justice. The Court had considered in paragraph No.17 thus -
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 petition deserves to be allowed.
65. According to learned advocate similar situation has arises in the present matter as well.
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66. Gunwantrao Deshmukh's case (supra)had been adverted to in Sunil Patil's case (supra) and having regard to facts in the present case, it has been a submission on behalf of the petitioner with reference to certain documents, which have been appended to the writ petition that the meetings, in fact, had been held, however, the Gram Sevak had defaulted in assisting the petitioner. As such, case of Gunwantrao Deshmukh (supra) may not be of any assistance for want of depiction of appreciation of facts as are contented to have been placed before respondent No.1.
67. As far as contention with regard to Hulle's case (supra) not being a "judgment" is concerned, for the contentions as have been advanced with reference to division bench judgment, it will have to be appreciated that the Hon'ble Single Judge in Hulle's case (supra) has referred to in paragraph No.4 as under -
"4 I have perused the impugned order passed by the Collector. The very first paragraph of the order makes a reference to the application received by the Collector on 7-7-2009. The order also records that in pursuance to receipt of the application, the Block Development Officer was directed to hold enquiry and the report of enquiry was received on 31-8-2009. While passing the order, the Additional Collector has referred to the application stated to have been received by on 29-6-2009from one Dhondiba and other members of the Village Panchayat and the said application is stated to have been allowed. Petitioner has made a grievance that she has not been served with proper notice of ::: Uploaded on - 17/05/2016 ::: Downloaded on - 30/07/2016 01:04:17 ::: {35} wp8668-15 enquiry nor has she received the copy of the complaint mentioned in the impugned order. On perusal of the report of enquiry conducted by the Block Development Officer, it transpires that the application received by the Collector on 29-6-2009 appears to have been transmitted to the Block Development Officer for conducting enquiry. Notice issued by the office of Additional Collector, Latur does not make any reference to the date of the application whereas, according to the petitioner, the copy of complaint annexed at exh. D on page 47 dt. 4-8-2009 has been transmitted to her alongwith the notice. Neither the complaint dt. 7-7-2009 nor the complaint dt. 29-6-2009 appears to have been transmitted to the petitioner. Notice issued by the Collector on 11-9- 2009 also does not disclose the charges. Petitioner therefore was handicapped in tendering her reply as no charges were indicated by the Collector. The procedure adopted for holding enquiry appears to be improper. Affidavit in reply has been presented by the Additional Collector, Latur who has decided the matter and has passed the impugned order. The answering respondent in terms has admitted that the complaint received on 4-8-2009 is transmitted to the petitioner. It is further stated in the reply that the complaints received by the Additional Collector on 29-6-2009 and 4-8-2009 were transmitted to respondent no.2 i.e. the Block Development Officer for conducting enquiry.
However, it has not been stated in the affidavit that the complaints received by the Additional Collector either on 29-6-2009 or on 7-7-2009 were forwarded to the petitioner. In the absence of transmission of the complaints on which reliance is placed by the authorities for initiating action against the petitioner, final order is not sustainable. The Additional Collector has dealt with the matter in most causal manner and the impugned order passed by the Additional Collector demonstrates nonapplication of mind. The proceedings are conducted by the officials in most casual manner and in utter disregard to the provisions of law which has necessitated this court to cause interference in the matter. Applications and the complaints received by the authorities were not transmitted to the petitioner although enquiry is initiated against her and an action involving penal consequences of her removal from the office has been taken. I cannot restrain myself from commenting on the conduct of the Additional Collector in dealing with the matter. Notice issued by him also demonstrates his utter non-application of mind and shows his culpable ::: Uploaded on - 17/05/2016 ::: Downloaded on - 30/07/2016 01:04:17 ::: {36} wp8668-15 callousness. The notice issued on 11-9-2009 merely calls upon the petitioner to appear in the office of Additional Collector on 29-9-2009. The petitioner has not been informed about the charges. In fact, it was the responsibility of the deciding authority, after receipt of the application, to direct holding of enquiry by Block Development Officer and, after receipt of the report of enquiry, the petitioner ought to have been communicated specific charges alongwith the copy of the report. Observance of such transparent procedure enables the person against whom the charges are levelled to tender proper explanation and answer the charges. In the absence of observance of such procedure, enquiry initiated cannot be said to be proper. The person against whom enquiry is initiated is entitled to know as to what are the charges levelled against him.
68. It will have to be taken into account that situation as had been obtaining in Hulle's case (supra), the court had decided the matter having regard to the facts and circumstances and the law. Said situation had also been considered and weighed in the situation of Sunil Patil's case (supra), decision given in Hulle's case (supra) had been taken into account and the case was decided by the Hon'ble Single Judge. Having regard to aforesaid observations, one may not be able to say that it is not a judgment for it qualifies to be one, having regard that that taking into account facts with legal principles as applicable to these facts and the law governing the circumstances it had been considered that the relief claimed based thereon could be granted. As such, there appears to be little substance in the contention of learned advocate for the respondents.
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69. Learned advocate for the petitioner has specifically
contended that as a matter of fact all the gram sabhas have been duly held. For want of specific allegations, although it has been so submitted and put forth before the authority, there has been failure on the part of the authority concerned to take the same into account. The petitioner is in a position to show that there is no lapse in holding meetings and the finding given by the authority, according to learned advocate for the petitioner does not appear to be in consonance with the record depicting holding of the meetings.
70. According to learned advocate for the respondents, record in respect of monthly meetings of 2015 is manipulated and is not in accordance with the rules.
71. While the Additional Collector has found that the record and proceedings as has been produced, had been deficient in certain respects as has been referred to, him noticing certain aspects as appearing in clause 1 on page 58. He refers to that there are communications at the instance of petitioner for change of Gram Sevak of March and May, 2015. It also appears that the petitioner had demanded certain record in respect of ::: Uploaded on - 17/05/2016 ::: Downloaded on - 30/07/2016 01:04:17 ::: {38} wp8668-15 gram sabhas and monthly meetings, however, it has been noticed by the authority that before the same, certain communications had been submitted by Gram Sevak of September 2014 and April, 2015. It appears that Gram Sevak had made certain communications to the Block Development Officer, in respect of record. In clause 7 it is recorded by the Additional Collector that from the record, as has been submitted, it does not appear that gram sabhas pursuant to section 7 of the MVP Act had been held. Whereas, from clause 8 it emerges in communication dated 13th May, 2015, that record with respect to the monthly meetings is alleged to be with the petitioner. In clause 9 the Additional Collector has observed that the petitioner Sarpanch had also placed photo copies of certain record with respect of gram sabhas. However, she has not placed anything on record in respect of the monthly meetings, although the petitioner has submitted that she has held all the monthly meetings. It has been specially observed by the Additional Collector that for the months of January, February and March, 2015, no record has been adduced of holding meetings and that the petitioner has communicated in respect of non availability or non working of Gram Sevak and as such, had asked for change of Gram Sevak. Counsel for the petitioner has relied on certain ::: Uploaded on - 17/05/2016 ::: Downloaded on - 30/07/2016 01:04:17 ::: {39} wp8668-15 documents which according to him are part of the record, which depict holding of monthly meetings in 2015. In clause 10, a reference has been made with respect to request of the petitioner to give opportunity to explain her case. However, it has been further observed that sufficient opportunity has been given to the petitioner.
72. On the whole, it emerges that the order falls short of showing as to what record and the documents have been taken into account and what record has not been referred to with reasons therefor and as to why it had not been considered.
There is absence of consideration of citations relied upon on behalf of the petitioner, by the authority and its effect. There are allegations and counter allegations, one claiming possession of the same being with the other.
73. In the present case, lot of dispute over the facts has remained to be ascertained by the Additional Collector and it appears that the decisions relied upon on behalf of the petitioner have absolutely not been taken into account and yet it is observed that sufficient opportunity has been given to the petitioner as required.
74. In the circumstances, it would be imperative to take into ::: Uploaded on - 17/05/2016 ::: Downloaded on - 30/07/2016 01:04:17 ::: {40} wp8668-15 account for the authority to consider all the aspects involved in the matter, including the disputed facts about production and/or possession of record as well as having regard to the decisions relied upon on either side. It would be thus, expedient in the interest of justice to let the parties to have an opportunity to deal with the case afresh, including the one vehemently being canvassed on behalf of the petitioner about absence of specific charges being levelled against her to be appreciated having regard to the facts and the law.
75. A proper fact finding will have to take place and apart from that a proper application of mind to the ratio of the authorities cited on behalf of the parties, will have to be considered properly with reference to the allegations made against each other.
76. The impugned decision does not appear to be sound enough to depict consideration of all the relevant aspects concerned. As such, impugned order dated 4 th August, 2015 passed by Additional Collector, Nanded is set aside.
77. The matter requires reconsideration on all aspects of facts and law and a proper decision thereon. Hence, the following order -
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ORDER
i. The writ petition is allowed in terms of prayer clause
"C". The proceedings are sent back for re-consideration to the Additional Collector, Nanded, in accordance with facts and law. Rule is made absolute in aforesaid terms.
ii. Having regard to aforesaid, it is expedient that the proceedings would be decided as expeditiously as possible, preferably within a period of six months from the date of receipt of writ of this order.
[SUNIL P. DESHMUKH, J.] drp.
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