Bombay High Court

Sumit Sanjay Jaiswal vs The State Of Maharashtra on 20 December, 2011

Bench: S. S. Shinde

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          IN  THE HIGH COURT OF JUDICATURE AT BOMBAY 
                     BENCH AT AURANGABAD




                                                            
                WRIT PETITION NO.3323 OF 2011




                                    
     Sumit Sanjay Jaiswal,
     Age: 26 years, Occ: Household,
     R/o. Ner, Taluka and
     District Dhule.                     ...PETITIONER 




                                   
            VERSUS             

     1.   The State of Maharashtra,




                           
          Through Additional Divisional
          Commissioner, Nashik Division,


     2.
          Nashik.
          Additional Collector, Dhule,
          Tq. & Dist. Dhule.
                
     3.   Rajendra Dula Mali,
          Age: 48 years, Occ: Agri.,
          R/o. Ner, Taluka
      

          District Dhule.                ...RESPONDENTS
   



                     WITH

               WRIT PETITION NO.3325 OF 2011





     Shital Swapnil Jaiswal,
     Age: 22 years, Occ: Household,
     R/o. Ner, Taluka and
     District Dhule.                     ...PETITIONER 





            VERSUS             

     1.   The State of Maharashtra,
          Through Additional Divisional
          Commissioner, Nashik Division,
          Nashik.




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     2.   Additional Collector, Dhule,
          Tq. & Dist. Dhule.




                                                                  
     3.   Rajendra Dula Mali,
          Age: 48 years, Occ: Agri.,




                                         
          R/o. Ner, Taluka
          District Dhule.                ...RESPONDENTS




                                        
                          ...
     Mr. N.L. Choudhari, Advocate for petitioners.
     Mr. N.R. Shaikh, A.G.P. for respondent Nos.1 & 2.
     Mr. D.S. Bagul, Advocate for respondent No.3. 




                               
                          ...

                   
                            CORAM: S.S. SHINDE, J.

DATE : 20TH DECEMBER, 2011

ORAL JUDGMENT :

. Rule. Rule made returnable forthwith.

With consent of the parties heard finally.

2. Both the writ petitions take exception to

the judgment and order dated 30-03-2011 passed by

the Additional Divisional Commissioner, Nashik

Division, Nashik in Grampanchayat Appeal Nos.6 of

2011 and 5 of 2011 respectively in Writ Petition

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Nos. 3323 of 2011 and 3325 of 2011.

3. By the impugned judgment and order, the

appellate authority has confirmed the order passed

by the Additional Collector, Dhule thereby

allowing the application filed by respondent No. 3

herein, and the petitioners herein are

disqualified as a Members of the Grampanchayat Ner

under the provisions of Section 14 (h-1) of the

Bombay Village Panchayats Act, 1958 (for short,

"said Act").

4. The background facts of the case are as

under :

. It is the case of the petitioners that,

in the month of July, 2010, election for Ner

Village Panchayat was conducted in which the

petitioner Sumit filled in nomination form from

Ward No.6, reserved for backward class and the

petitioner Shital filled in nomination from Ward

No.4, reserved for backward class women. In the

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said election, both the petitioners were declared

as successful returned candidates. It is the case

of the petitioners that, respondent No. 3 who is a

political rival of the petitioners, having grudge

and feeling jealous about the success of the

petitioners on the vague ground, respondent No. 3

filed Village Dispute Nos. 23 of 2010 and 22 of

2010 before the Additional Collector, Dhule with

prayer of disqualification of the petitioners.

5. The two fold contentions were raised in

the said Disputes. Firstly, the petitioners are

the members of joint Hindu family and the members

of petitioners' joint family have encroached on

the abutting land on the public road owned by the

joint Hindu family. Secondly, father of the

petitioner Sumit and father in law of the

petitioner Shital, was Sarpanch of Grampanchayat,

Ner for the period of 1989 to 1999 and during that

period, he misappropriated the amount and for that

purpose, even offence is registered against him.

It is alleged that, Sanjay-father of petitioner

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Sumit, and father in law of petitioner Shital has

not paid Government dues and hence, the

petitioners have incurred disqualification as per

the provisions of Section 14(j) (3) and (4) of the

said Act.

6. The case of the petitioners before the

Additional Collector was that, before filling in

nomination forms, the entire encroachment was

removed. Not only that, on the basis of

Tahsildar's report dated 12-04-2010 respondent is

claiming that the petitioners' family has

encroached on the public road, said order is

stayed by the Hon'ble High Court in Writ Petition

No. 6092 of 2010. Said order was placed on record

by the petitioners before the Additional Collector

who was seized with the Village Dispute Nos. 23 of

2010 and 22 of 2010.

7. The petitioners also stated before the

Additional Collector that, there are only

allegations against father and father in law of

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petitioner Sumit and petitioner Shital,

respectively and no charges are yet proved against

him. It was also pointed out that, both the

petitioners are staying separately and they are

not staying with the family.

8. It is the case of the petitioners that,

the Additional Collector refused to disqualify the

petitioners on the ground of encroachment, since

in that respect, writ petition is pending before

the Hon'ble High Court. It is the case of the

petitioners that, there was some communication

from Block Development Officer, Panchayat Samiti,

Dhule dated 02-08-2008 to Sanjay Durgadin Jaiswal,

who is father of petitioner Sumit and father in

law of petitioner Shital, directing him to deposit

50% of the amount as against alleged

misappropriation by him during period in which he

was holding the post of Sarpanch for

Grampanchayat, Ner. It is the case of the

petitioners that, the order passed by the

Additional Collector disqualifying the petitioners

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by invoking the provisions of Section 14 (h-1)of

the said Act, is ex facie illegal and same order

cannot be sustained. The petitioners cannot be

held responsible or cannot be asked to deposit 50%

of the amount, as against the alleged

misappropriation by the father and father in law

of the petitioner Sumit and Shital respectively.

9. It is the case of the petitioners that,

petitioners Sumit and Shital preferred

Grampanchayat Appeal Nos. 6 of 2007 and 5 of 2007

respectively before the Additional Divisional

Commissioner, Nashik Division, Nashik. However,

without appreciating the contentions of the

petitioners, the appellate authority has upheld

the judgment and order passed by the Additional

Collector, Dhule. Hence both these writ

petitions.

10. Learned Counsel for the petitioners would

submit that, the provisions of Section 14 (h-1) of

the said Act can be invoked only when there is a

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failure to pay the amount of surcharge or charge

under Section 140 or the amount ordered to be paid

under Section 178 together with interest, if any,

within the period provided in that behalf.

However, in the present case, there is no question

of fastening any liability on the petitioners by

invoking either provisions of Section 140 or 178

of the said Act and holding the petitioners

disqualified under Section 14 (h-1) of the said

Act. He further submits that, both the authorities

have not applied their mind to the facts of the

case and also misread and misinterpreted the

provisions of Section 140 and 178 of the Bombay

Village Panchayats Act, 1958 and wrongly

disqualified the petitioners as members of the

Grampanchayat. Therefore, according to the

Counsel for the petitioners, writ petitions

deserve to be allowed.

11. On the other hand, learned A.G.P. for

respondent Nos. 1 to 3 and learned Counsel for

respondent No.4 would submit that, the Additional

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Collector and also the appellate authority have

properly considered the relevant provisions. They

have rightly concluded that, the petitioners were

told to deposit 50% of the amount of alleged

misappropriation by their father and father in

law. However, since the said amount was not

deposited, they have incurred disqualification

under Section 14 (h-1) of the said Act and the

authorities have rightly disqualified the

petitioners as members of the Grampanchayat under

the provisions of Section 14 (h-1) of the said

Act. The Counsel for respondent No. 4 would submit

that, the revision is maintainable before the

State Government and therefore, the writ petitions

may not be entertained.

12. I have given anxious consideration to

the rival submissions. Perused the averments in

the writ petitions, annexures thereto, and

relevant provisions of the Bombay Village

Panchayats Act, 1958. It appears that, the

original complainant, Grampanchayat Dispute

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Nos. 23 of 2010 and 22 of 2010 is mainly on two

fold contentions. Firstly, there is encroachment

made by the members of the joint family of the

petitioners on the public road abutting their

residential house. Therefore, they are not

entitled to be continued as a members of the

Grampanchayat. It is not in dispute that, in this

respect, the W.P. No. 6092 of 2010 is filed by the

petitioners and in the said writ petition,

Division Bench of this Court has stayed the order

of the Tahsildar dated 12-04-2010 thereby staying

the effect of the said report which concludes

that, there is encroachment by the petitioners'

family on public road. Therefore, in that

respect, the Additional Collector, Dhule and also

the appellate authority have not passed any order.

. The second contention which is raised in

the said Grampanchayat Disputes that, father of

petitioner Sumit and father in law of petitioner

Shital, when he was Sarpanch of Grampanchayat, Ner

for the period 1989 to 1999, as per audit report,

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there is misappropriation of Rs.3,93,886/- and

further there appears to be suspicious

misappropriation of Rs.3,77,450/-. In spite of

specific demand of the said misappropriated amount

by the Block Development Officer, Panchayat

Samiti, Dhule from the father of petitioner Sumit

and father in law of the petitioner Shital, and

the petitioners are the members of the joint Hindu

Family and therefore, they should be declared

disqualified under Section 14 (h-1) of the said

Act. At this juncture, it would be appropriate to

refer the provisions of Section 140 of the Bombay

Village Panchayats Act, 1958.

Sub section (1) and (5) of Section 140 of the

said Act reads thus :

"(1) The audit of the accounts

of a panchayat shall be carried out by such authority and in such manner as may be prescribed and a copy of the audit note shall be forwarded to Chief Executive

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Officer, the Panchayat Samiti and the Panchayat within two months of

the completion of the audit.

(5) The Chief Executive Officer may, after considering the report of the Panchayat Samiti

and after making such further inquiry as he considers necessary, disallow any item which appears to

him contrary to law and surcharge

the same on the person making or authorizing the making of the

illegal payment and may charge against person responsible therefore the amount of any

deficiency or loss caused by the gross negligence or misconduct of

that person, or any sum received which ought to have been, but is

not, brought into account by that person; and may after taking explanation of such persons, direct by order in writing that

such person shall pay to the panchayat the amount surcharge or charged and where the Chief Executive Officer considers it necessary, also an interest on the

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amount so surcharged at such rate as may be determined by him. If

the amount or interest directed to be paid by the Chief Executive

Officer under his order is not paid by the aforesaid within one month from the date of receipt of

such order by him, the Chief Executive Officer shall request the Collector to recover it as an

arrears of land revenue and credit

it to the village fund, and thereupon the Collector shall be

bound to do so."

13. Plain reading of the provisions of

Section 140 of the said Act would make it clear

that, audit of the accounts of a panchayat shall

be carried out by the authority as prescribed

under the said Act. On receipt of the audit note,

the panchayat is required to either remedy any

defects or irregularities which may have been

pointed in the audit note and send to the

Panchayat Samiti within three months. Panchayat

Samiti in turn, accept such intimation or

14 wp3323.11

explanation of the panchayat and recommend the

Chief Executive Officer to drop the objection or

suggest that the matter be re-investigated at the

next audit or at any earlier date or hold that the

defects or irregularities pointed out in the audit

note or any of them have not been removed or

remedied. Sub section (4) of Section 140 of the

said Act contemplates that, the Panchayat Samiti

shall send a report of its decision to the Chief

Executive Officer within one month of the date of

receipt by it of the intimation or explanation

referred to in sub section (2), or in the event of

the panchayat failing to give such intimation or

explanation on the expiry of the period of three

months referred to in the said sub section (2) or

in the event of the Panchayat failing to give such

intimation or explanation on the expiry of the

period of three months referred to sub section

(2).

. In the present case, sub section (5) of

Section 140 of the said Act is material. In the

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present case, the allegation of the alleged

misappropriation of the panchayat funds is against

the father and father in law of the petitioner

Sumit and petitioner Shital respectively. There

is allegation of alleged misappropriation is for

the period 1989 to 1999. It is admitted position

that, the offence is registered in that respect.

The law will take its own course and after

investigation, if the father and father in law of

the petitioners Sumit and Shital, is responsible,

necessary consequences will follow. However, to

fasten the liability of the alleged

misappropriation for the period 1989 to 1999 on

the present petitioners though they are not

directly responsible, cannot be countenanced. If

the father of the petitioner Sumit and father in

law of the petitioner Shital is responsible for

the alleged misappropriation of the funds, he may

face consequences. The view taken by the

authorities and recourse to Section 140 of the

said Act qua present petitioners cannot be

sustained. It is also relevant to mention that,

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how the said petitioner Sumit and petitioner

Shital are the members of the joint Hindu family,

is also not discussed by the authorities below. It

was incumbent upon the authorities to discuss the

said issue in detail since the specific contention

was raised by the petitioners herein that, they

are staying separately and not in the joint

family.

14.

The Additional Collector, Dhule and also

the appellate authority has also taken recourse to

the provisions of Section 178 of the said Act.

The provisions of Section 178 of the said Act

reads thus :

"178. (1) Every member of panchayat shall be personally liable for the loss, waste or misapplication of any money or

other property of the panchayat to which he has been party or which has been caused or facilitated by his misconduct or gross neglect of his duty as a

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member.

(2) If after giving the member concerned a reasonable

opportunity for showing cause to the contrary, the Collector is satisfied that the loss, waste or

misapplication of any money or other property of the panchayat is a direct consequence of

misconduct or gross neglect on

his part, the Collector shall by order in writing direct such

member to pay to the panchayat before a fixed date, the amount required to reimburse it for such

loss, waste or misapplication.

(3) If the amount is not so paid, the Collector shall

recover it as an arrear of land revenue and credit it to the village fund.

(4) Any person aggrieved by the decision of the Collector may apply to the District Court as provided in sub section (6) of Section 140, within the like time

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for redress of his grievance, and that Court may pass any order

thereon which it can pass under that section."

15. Bare perusal of sub section (1) of

Section 178 of the said Act would make it

abundantly clear that, every member of panchayat

shall be personally liable for the loss, waste or

misappropriation of any money or other property of

the panchayat to which he has been party or which

has been caused or facilitated by his misconduct

or gross neglect of his duty as a member.

Therefore, if the authorities are of the opinion,

that Sanjay, father of the petitioner Sumit and

father in law of petitioner Shital is responsible

for the alleged misappropriation for the period

1989 to 1999 when at the relevant time, he was

Sarpanch, the authorities can very well proceed

against him and take appropriate steps in

accordance with law. However, to disqualify the

petitioners in both the writ petitions on the

ground that, the offence is registered against

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Sanjay, father of the petitioner Sumit and father

in law of petitioner Shital for alleged

misappropriation for the period 1989 to 1999, when

the said Sanjay was Sarpanch and the petitioners

have not paid 50% of the amount as demanded by the

Block Development Officer and therefore, to hold

that they are liable to be disqualified as members

of the Grampanchayat, would be misinterpreting and

misreading provisions of the said Act.

16. I find considerable substance in the

arguments of the Counsel for the petitioner that,

if the member of the joint Hindu family commits

any default in payment of tax to be levied by the

panchayat or any lawful dues to be recovered by

the panchayat, in that case, appropriate

proceedings can be taken against such defaulter

member of the family under the provisions of the

said Act. However, in the instant case, the

petitioners herein are not responsible for the

alleged misappropriation by the father and father

in law of petitioners Sumit and Shital

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respectively, that too for the period 1989 to 1999

when he was Sarpanch of the village.

. The provisions of Section 14 (h-1) of the

said Act reads thus :

"14. (1) No person shall be a member of a panchayat continue as

such, who -

ig (h-1) fails to pay the amount

of surcharge or charge under section 140 or the amount ordered to be paid under section 178

together with interest, if any, within the period provided in

their behalf, and where an appeal has been made, then within one

month from the date of receipt of the decision rejecting such appeal."

17. Therefore, bare reading of the provisions

of sub section (h-1) of Section 14 of the said Act

would make it clear that, the member of the

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panchayat can be disqualified in case he fails to

pay the amount of surcharge or charge under

section 140 or the amount ordered to be paid under

section 178 together with interest, if any, within

the period provided in that behalf. However, in

the instant case, as discussed hereinabove, there

was no question of failure on the part of the

petitioners to pay any amount of surcharge or