Anil Kalgonda Patil, Sanjay ... vs The Gram Panchayat, Through Gram ...
2003 Latest Caselaw 876 Bom

JUDGMENT

C.K. Thakker, C.J.

1. Rule. Mr. V.B. Rajpure, learned Advocate, appears and waives service of notice of Rule on behalf of respondent No. 1. Mr. R.M. Patne, learned Assistant Government Pleader,appears and waives service of notice of Rule on behalf of respondent Nos. 2 to 5. Mr. Tejpal Ingale, learned Advocate, appears and waives service of notice of Rule on behalf of respondent Nos. 11 to 15.

2. In the facts and circumstances, the matter is taken up for final hearing today.

3. This petition is filed by the petitioners for an appropriate direction to the Collector, Kolhapur, respondent No. 3 herein to decide the dispute raised by the petitioners as to genuineness of the resignations tendered by them after affording an opportunity of hearing to them. A further prayer is made to quash and set aside the order dated June 16, 2003 passed by the Divisional Commissioner, Pune Division, Pune, respondent No. 4 herein (Exhibit F) by which he has ordered to fill in eight vacant seats of Gram Panchayat, Chipri, Taluka Shirol, District Kolhapur.

4. Certain facts are not in dispute. Election of Gram Panchayat, Chipri, was held in August, 2000. All the petitioners got elected in the said election alongwith other members for five years.

5. According to the petitioners, being dissatisfied with arbitrary and illegal method of working of Sarpanch of the Panchayat, the petitioners and respondent Nos. 6 to 10 tendered their resignations on September 9, 2002. A meeting of the Panchayat was convened on September 25, 2002. It considered the resignations tendered by the members of the Gram Panchayat and the resignations were accepted. It is, however, the say of the petitioners that on October 1, 2002, an application was submitted to respondent No. 3. Collector, Kolhapur, in respect of the resignations tendered by them. In the said application, it was stated that the resignations tendered by them were not voluntary. It is not even the case of respondent No. 3 that the said dispute was resolved, and a final decision was taken by him in accordance with law. In view of the said fact, according to the petitioners, no order could have been passed by respondent No. 4 on June 16, 2003 ordering re-election. In the said order, it was stated by respondent No. 4 that the resignations were tendered by the petitioners, as well as respondent Nos. 6 to 10, which had been placed before the Panchayat Meeting and were accepted. Respondent No. 4 was also of the opinion that the said action was taken with intent to obstruct Sarpanch, who was from backward community. The said fact, according to respondent No. 4, was sufficient to dissolve Gram Panchayat. But instead of dissolving the Gram Panchayat and holding an election for the whole body, it would be appropriate if by exercising power under Section 145 (1A) of the Bombay Village Panchayat Act, 1958 (hereinafter referred to as "the Act"), eight vacant seats are ordered to be filled in by holding re-election. Accordingly, an order was passed for holding re-election of eight seats, vacated by the members by tendering resignation. The said order is impugned in this petition.

6. We have heard the learned counsel for the parties.

7. The learned counsel for the petitioners raised two contentions. Firstly, it was contended that the action of respondent No. 3 is illegal, contrary to law and inconsistent with the provisions of Sub-section (1A) of Section 145 of the Act. It was submitted that eh resignations were tendered on September 9, 2002, and were placed in the Panchayat Meeting on September 25, 2002. Within a period of one week therefrom, a dispute was raised by them by addressing a letter to the Collector on October 1, 2002. No order, therefore, could have been passed by respondent No. 3 before a decision has been taken by the Collector. It is only after the adjudication and decision by the Collector that an appropriate action could be taken. It was also submitted that Section 145(1A) requires observance of principles of natural justice and fair play. As no notice was issued, no explanation was sought and no hearing was afforded before passing the impugned order, the action is null and void. For that, our attention was invited to a decision of the Division Bench of this Court in Kavita Sakharam Chavan and Ors. v. Commissioner, Konkan Division, and Ors. , .

8. The learned Assistant Government Pleader, on the other hand, supported the order passed by the Divisional Commissioner, and submitted that keeping in view the provisions of the Act, instead of dissolving the Gram Panchayat, an order was passed for re-election of eight vacant seats. Such action cannot be said to be illegal or contrary to law. It was also submitted that the ratio laid down in Kavita Sakharam Chavan would not apply to re-election of some seats but only to dissolution of the body as a whole.

9. The intervenors had also supported the stand taken by the Government. In addition, it was submitted that when the factum regarding resignations was not in dispute, it was not necessary for the Commissioner to hold inquiry and to wait till the matter is decided by the Collector. When the petitioners, as well as respondent Nos. 6 to 10 themselves, have come forward stating that they had tendered resignations, the action of respondent No. 4 cannot be said to be contrary to law. The learned counsel also submitted that the ratio laid down in Kavita Sakharam Chavan would not apply to the facts of the instant case.

10. In our opinion, the contention of the petitioners cannot be upheld. So far as the decision of the Division Bench in Kavita Sakharam Chavan is concerned, the principle laid down in the said case would not apply to the fats of the case. In that case, the action was of dissolution of Panchayat. Keeping in mind the said situation, the Division Bench held that such an action of the dissolution of the Panchayat would affect all the elected members. Before taking such action of dissolution of Panchayat, principles of natural justice ought to be observed.,

11. In the instant case, all elected members holding the office of Gram Panchayat had not been unseated by an order of dissolution of Gram Panchayat. What has been done by the Commissioner is that those members, who had been said to have resigned, were to vacate the office, and re-election was ordered. The said order, thus, would not adversely affect or prejudice the members who are still holding the office. It was in the light of the fact that all the members would have to vacate the office in case of dissolution of panchayat that observations have been made by this Court in Kavita Sakharam Chavan and the principles of natural justice were invoked. Since that is not the situation here, the ratio laid down in the said case would have no application.

12. The second contention of the learned counsel for the petitioners, however, is well founded and must be upheld. As already noted above, resignations were tendered on September 9, 2002. The Panchayat Committee considered the matter on September 25, 2002. Now, we have to see the provisions of Section 29 of the Act. The said section provides for resignation of members and disputes regarding genuineness of such resignation.

13. The said section reads thus:

"29. Resignation of member and disputes regarding resignation

(1) Any member who is elected may resign his office by writing under his hand addressed to the Sarpanch and the Sarpanch may resign his office of member by writing under his hand addressed to the Chairman of the Panchayat Samiti. The resignation shall be delivered in the manner prescribed.

(2) On receipt of the resignation under Sub-section (1), the Sarpanch or, as the case may be, the Chairman of the Panchayat Samiti shall forward it to the Secretary who shall place it before the meeting of the Panchayat next following.

(3) If any member or the Sarpanch whose resignation is placed before the meeting of the Panchayat wants to dispute the genuineness of the resignation, he shall refer such dispute to the Collector within seven days from the date on which his resignation is placed before the meeting of the Panchayat. On the receipt of the dispute, the Collector shall decide it, as far as possible, within fifteen days from the date of its receipt.

(4) The member or Sarpanch aggrieved by the decision of the Collector, may within seven days from the date of receipt of the Collector's decision, appeal to the Commissioner who shall decide it, as far as possible, within fifteen days from the date of receipt of the appeal.

(5) The decision of the Collector, subject to the decision of the Commissioner in appeal, shall be final.

(6) The resignation shall take effect, -

(a) where there is no dispute regarding the genuineness, after the expiry of seven days from the date on which it is placed before the meeting of the Panchayat;

(b) where the dispute is referred to the Collector referred to the Collector and no appeal is made to the Commissioner, after the expiry of seven days from the date of rejection of the dispute by the Collector;

(c) where an appeal is made to the Commissioner, immediately after the appeal is rejected by the Commissioner."

14. Bare reading of the above provision makes it clear that an elected member may resign his office by addressing a resignation to the Sarpanch of the Panchayat. The Sarpanch shall forward it to the Secretary to be placed before the meeting of the Panchayat. Sub-section (3) enacts that if a member of the Panchayat disputes the genuineness of the resignation, he shall refer such dispute to the Collector "within seven days from the date of which his resignation is placed before the meeting of the Panchayat". The said sub-section also enjoins the Collector to decide the dispute "as far as possible, within fifteen days" from the date of the receipt of such dispute. The decision of the Collector is subject to appeal to Commissioner which has been attached statutory finality.

15. In the instant case, the meeting of the Panchayat was convened on September 25, 2002, and the resignations submitted by the members were accepted. The members, who had resigned, however, raised a dispute before the Collector on October 1, 2002 i.e. within seven days from the date on which the meeting of the Panchayat was convened.

16. No doubt, the learned counsel for the intervenors submitted that when the factum of resignation was not denied, there cannot be a dispute within the meaning of Section 29 of the Act. In our opinion, however, when the members had stated that their resignations were not voluntary, the provisions of Section 29(3) got attracted, and it was incumbent on the Collector to decide the question. The said fact is also clear if one reads the communication by the Block Development Officer, Class II, Panchayat Chipri, Shirol, dated February 14, 2003 in which he has referred to the complaint made to the Collector, Kolhapur, by several members. The dispute, therefore, requires to be adjudicated by the authority i.e. Collector. Since it was not done, the impugned action deserves to be quashed and set aside.

17. The learned counsel for the intervenors relied upon two decisions of the Supreme court in M.C. Mehta v. Union of India and Ors., , and Aligarh Muslim University and Ors. v. Mansoor Ali Khan, . In both the decisions, it has been held by the Supreme Court that there must be prejudice to the person complaining against non-observance of principles of natural justice. An order cannot be set aside merely because a hearing was not afforded to the person against whom an action was taken. In our opinion, neither of the two decisions would apply to the facts of the case, inasmuch as it is for the adjudicating authority to consider the contention raised and to come to a conclusion.

18. The argument that in the light of the provisions of Article 243-O of the Constitution, no order can be passed by any Court, including this Court, as the Election Notification has been issued by the authorities, also does not impress us. Since the action taken by respondent No. 4 is not in consonance with law and is liable to be quashed, consequential actions will have to be set aside.

19. For the foregoing reasons, the Writ Petition deserves to be allowed. The order dated June 16, 2003 passed by respondent No. 4-Commissioner is hereby set aside. It is directed that the Collector, respondent No. 3, will consider the complaint dated October 1, 2002, made only by the members disputing genuineness of their resignations, and will pass an appropriate order in accordance with law. Since the matter pertains to resignation of members of Panchayat, the Collector will decide the same as expeditiously as possible, preferably within four weeks from today. Rule is accordingly made absolute to the above extent. In the facts and circumstances, there will be no order as to costs.

20. Before parting with the matter, we may clarify that all the observations made by us hereinabove have been made only for the purpose of deciding the present petition. As and when the matter will come up before the Collector, he will decide the same strictly on its own merits and in accordance with law, without being influenced or inhibited by the above observations.

21. Parties be given copies of this order, duly authenticated by the Sheristedar/Private Secretary.