Ravindraprasad vs Prakash
2013 Latest Caselaw 272 Bom

                        1                                  W.P.8035.13+3

                                         

             IN  THE HIGH COURT OF JUDICATURE AT BOMBAY 




                                                                
                       BENCH AT AURANGABAD

                 WRIT PETITION NO. 8035 OF 2013




                                        
     Ravindraprasad S/o Shankarprasad 
     Avasthi, Age 43 yrs. Occu. Agri.,
     R/o Ajegaon, Tq. Sengaon,




                                       
     Dist. Hingoli.                              ...PETITIONER 

               VERSUS             




                               
     1.    Prakash S/o Pralhadrao Wagh,
           Age Major, Occ. Agri.,
                   
           R/o Ajegaon, Tq. Sengaon,
           Dist. Hingoli.

     2.    Grampanchayat Ajegaon,
                  
           Through Gramsevak,
           Grampanchayat, Ajegaon,
           Tq. Sengaon, Dist. Hingoli.
      

     3.    The Addl. Collector,
           Hingoli.                      ...RESPONDENTS
   



                              ...
                             WITH
                 WRIT PETITION NO. 8004 OF 2013





     Smt. Parvatibai Sambhaji Dolas,
     Age 64 yrs. Occu. Agri.,
     R/o Ajegaon, Tq. Sengaon,
     Dist. Hingoli.                              ...PETITIONER 





               VERSUS             

     1.    Prakash S/o Pralhadrao Wagh,
           Age Major, Occ. Agri.,
           R/o Ajegaon, Tq. Sengaon,
           Dist. Hingoli.




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                       2                                  W.P.8035.13+3

     2.   Grampanchayat Ajegaon,
          Through Gramsevak,
          Grampanchayat, Ajegaon,




                                                              
          Tq. Sengaon, Dist. Hingoli.

     3.   The Addl. Collector,




                                      
          Hingoli.                   ...RESPONDENTS
                             ...
                            WITH
                WRIT PETITION NO. 8015 OF 2013




                                     
     Santosh S/o Sadashiv Divane,
     Age 43 yrs. Occu. Agri.,
     R/o Ajegaon, Tq. Sengaon,




                           
     Dist. Hingoli.                            ...PETITIONER 

               VERSUS             
                 
     1.   Prakash S/o Pralhadrao Wagh,
          Age Major, Occ. Agri.,
                
          R/o Ajegaon, Tq. Sengaon,
          Dist. Hingoli.

     2.   Grampanchayat Ajegaon,
      

          Through Gramsevak,
          Grampanchayat, Ajegaon,
   



          Tq. Sengaon, Dist. Hingoli.

     3.   The Addl. Collector,
          Hingoli.                      ...RESPONDENTS





                             ...

                           WITH
               WRIT PETITION NO. 8021 OF 2013





     Dadarao S/o Ganpatrao Karhale,
     Age 43 yrs. Occu. Agri.,
     R/o Ajegaon, Tq. Sengaon,
     Dist. Hingoli.                            ...PETITIONER 

               VERSUS             




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                          3                                  W.P.8035.13+3

     1.   Prakash S/o Pralhadrao Wagh,
          Age Major, Occ. Agri.,
          R/o Ajegaon, Tq. Sengaon,




                                                                 
          Dist. Hingoli.

     2.   Grampanchayat Ajegaon,




                                         
          Through Gramsevak,
          Grampanchayat, Ajegaon,
          Tq. Sengaon, Dist. Hingoli.




                                        
     3.   The Addl. Collector,
          Hingoli.                       ...RESPONDENTS
                       ...
     Shri Sachin S. Deshmukh, Advocate for Petitioners
     Shri P.R. Patil, Advocate for Respondent No. 1




                               
     Shri N.B. Khandare, Advocate for Respondent No. 2
     Shri S.D. Kaldate, AGP for respondent No. 3
                   
                        ...

                         CORAM:   S. S. SHINDE, J.
                  
                         Date of Reserving : 27.11.2013
                         the Judgment       
      

                         Date of Pronouncing:04.12.2013 
                         the Judgment     
   



     JUDGMENT  :

1. Rule. Rule made returnable forthwith. By

consent heard finally.

2. These Writ Petitions take exception to the

judgment and order dated 05.09.2013, passed by

Additional Divisional Commissioner, Aurangabad

Division, Aurangabad, in the Appeals preferred by

the petitioners.

4 W.P.8035.13+3

3. The relevant facts, leading to file the

present petition as disclosed in this writ

petition are as under:

(a) The General elections of the Grampanchayat Ajegaon were held for 11 posts, wherein the petitioners were

elected as successful candidates.

(b) Pursuant to the said declaration, the

petitioners have started working as

members of the Grampanchayat, wherein in order to complete the work under

schemes, namely, NRHM,DPDC,BRGF,certain advances were made by the petitioners only with a view to complete the work

and due to non- availability of the funds at the relevant point of time and

further directives of the B.D.O.to avoid administrative action.

(c) Accordingly, on 25.01.2012, the Grampanchayat resolved to avail advances from the members such as

petitioners to make the funds available and refund the same upon availability of the funds after inspection by the competent authority.

5 W.P.8035.13+3

(d) Respondent No. 1 presented the complaint/application under Section 14

(g) of the Bombay village Panchayat Act (Hereinafter referred to as "said

Act" for short) seeking disqualification of the petitioners.

(e) On 29.07.2013, the petitioners as well as the villager offered their say to the complaint before the Additional

Collector, Hingoli submitting therein

that the advances are repaid and no personal benefit has been achieved, while

taking the advances back. However, Additional Collector, allowed the complaint and consequently disqualified

the petitioners.

(f) Being aggrieved by the same, the petitioners had preferred Appeals before

the Additional Divisional Commissioner, Aurangabad under Section 16(2) of the Act. However, the Additional Divisional Commissioner dismissed the Appeals.

4. Being aggrieved by the order passed by the

Additional Divisional Commissioner, the

petitioners have filed present Petitions.

6 W.P.8035.13+3

5. Learned counsel appearing for the petitioners

invited my attention to the pleadings in the

petitions and submitted that, while working as

members of the Grampanchayat, it was endeavour of

the petitioners that, various schemes in the

welfare of the general public at large should be

implemented, therefore, the advances were made and

subsequently upon availability of the funds same

were reimbursed, wherein no personal gain as such

out of the same has been derived by the

petitioners. The refund of the amount is equal to

that of advances, and no further gains has been

made by the petitioners out of the said

reimbursement.

6. It is further submitted that the concerned

authorities were asking the Grampanchayat to

complete the certain works within stipulated

period. Under the compelling circumstances, the

petitioners were required to advance the amount to

the Grampanchayat and upon availability of funds

by the Grampanchayat, the said amount was

7 W.P.8035.13+3

reimbursed. It is submitted that the said act of

the petitioners is in pursuant to the resolution

passed by the Gram Panchayat. Learned counsel

appearing for the petitioners invited my attention

to the said Gram Panchayat Resolution. It is

further submitted that, the authorities below are

not justified, while disqualifying the petitioners

by virtue of operation of Section 14(1)(g) of the

said Act, when admittedly the amount advanced was

with an object to get the work completed and same

has been returned back without extending any

benefits, whatsoever, in favour of the

petitioners, therefore, the disqualification is

totally justified and consequently the impugned

orders are liable to be quashed and set aside.

7. The learned counsel appearing for the

petitioners invited my attention to the grounds

taken in the petition and annexures thereto and

submitted that, the provisions of section 57A of

the said Act empowers the Panchayat to borrow

money for the purpose of carrying out its

8 W.P.8035.13+3

functions under the Act. Therefore, the amount was

advanced to the Gram Panchayat, and after Gram

Panchayat received the funds, the said advanced

amount was reimbursed. It is submitted that it is

also permissible to receive the funds by way of

gift and contribution.

8. Learned counsel appearing for the petitioners

also invited my attention to the judgment of this ig Court in case of S ou. Jyotitai Vikas Gawande Vs.

Additional Commissioner, Amravati Division,

Amaravai, reported in 2009 Mh.L.J.486, in

particular, para No. 7 thereof. It is submitted

that on interpretation of provisions of Section

14(1)(g) of the said Act, this Court in the facts

of that case held that, there should be share or

interest by Panchayat Member himself or his

partner in any work done by order of the

Grampanchayat or in any contract with by or on

behalf of, or employment with or under the

Panchayat.

9 W.P.8035.13+3

9. Learned counsel appearing for the petitioners

further invited my attention to para No. 19 of the

said judgment. It is submitted that in the facts

of the present case, the petitioners totally acted

in the interest of the Panchayat and advanced

amount was reimbursed after funds were received by

the Gram Panchayat and funds were properly

utilized, as such, it cannot be said that the

petitioners have mis-utilized the amount and made

misappropriation of it.

10. The learned counsel appearing for the

petitioners also invited my attention to the

provisions of sub-section 57(2)(h)(i) of the said

Act. Therefore, relying upon the pleadings in the

petitions, annexures thereto and aforesaid

provisions of the Bombay Village Panchayats Act,

the learned counsel appearing for the petitioners

submitted that the petitions deserve to be

allowed.

relying upon the reasons recorded by the

10 W.P.8035.13+3

Additional Collector and Additional Divisional

Commissioner in the impugned orders submitted

that, the petitions are devoid of any merits and

the same may be dismissed.

12. Learned counsel appearing for respondent No. 1

has vehemently opposed the prayers in the

petitions. He invited my attention to the reasons

recorded by the Additional Collector, which are

confirmed by the Additional Divisional

Commissioner. In addition to it, he submitted that

in view of Section 57A of the said Act, the power

of Panchayat to borrow money only from such body

or association as may be approved by the State

Government in that behalf is permissible. He

submitted that in the facts of the present case,

the amount advanced to the Gram Panchayat was

subsequently reimbursed by withdrawing the amount

from the Gram Panchayat account, is contrary to

the statutory provisions. He submitted that the

said act of the petitioners is to benefit

themselves and their relatives, therefore, the

11 W.P.8035.13+3

petitioners had interest in advancing the amount

to the Gram Panchayat and withdrawing the amount

from the Gram Panchayat account, on account of

reimbursement of the said amount. Therefore, he

submitted that the petitions deserve to be

dismissed.

13. Learned counsel for respondent No. 1 further

submitted that, in similar facts situation, the

Division Bench of this Court, in the case of

Balaji Ganpati Manmode Vs. The State of

Maharashtra, in Letters Patent Appeal No. 6 of

2013 in Writ Petition No. 6533 of 2012 with Civil

Application No. 306 of 2013 has taken a view that,

giving advances to the Gram Panchayat and

reimbursement of the said advanced amounts to

members of Panchayat appellant-therein had

interest in the work and has most probably get it

done himself and in order to show that the work

was done from the funds of Panchayat, appellant-

therein made a show of payment in cash and then

recovering it by cheques from the Panchayat.

12 W.P.8035.13+3

14. The learned counsel appearing for respondent

No. 1 further pressed into service the exposition

of the Supreme Court in case of Eelia M. Xavier

Feernandes E Gonsalves Vs. Joana Rodrigues and

others reported in (2012)3 Supreme Court Cases 188

and submitted that in the facts of that case the

Supreme Court while interpreting the provisions of

Goa Panchayat Raj Act 1994 held that, the word

'interest' should be given wide meaning. The

learned Counsel appearing for respondent No. 1

invited my attention to para No. 17 from the said

judgment and submitted that interest must concern,

advantage, good; share, portion, part or

participation. Therefore, learned counsel

appearing for respondent No. 1 submitted that this

Court may not interfered with the impugned

judgment and order passed by Additional Collector

and confirmed by the Additional Divisional

Commissioner, Aurangabad.

15. I have given careful consideration to the

submissions made by the learned counsel appearing

13 W.P.8035.13+3

for the petitioners, the learned AGP appearing for

respondent Nos. 1 to 3 and learned counsel

appearing of respondent No. 5. With their able

assistance, I have perused the grounds taken in

the petition and annexures thereto and the

impugned judgment and order passed by the

Additional Collector, which is confirmed by the

Additional Divisional Commissioner, Aurangabad and

the provisions of the Bombay Village Panchayats

Act, 1958 and judgments cited supra by the learned

counsel appearing for the petitioners and

respondent No.1. At this juncture, it would be

apt to reproduce herein below Section 14(1)(g) of

the said Act.

"14. Disqualifications.

(1) ...

(g) has directly or indirectly, by himself or his partner, any share or interest in any work done by order

of the panchayat or in any contract with, by or on behalf of, or employment with or under the panchayat; or"

14 W.P.8035.13+3

16. Upon careful perusal of the said provision,

it is abundantly clear that, no person shall be a

member of the panchayat continued as such, who has

directly or indirectly by himself or his partner,

any share or interest in any work done by order of

the panchayat or any contract with, by or on

behalf of, or employment with or under, the

panchayat.

17. In the facts of present case, according to

the petitioners, in order to overcome the

financial constraints, it was resolved in the

meeting of the Gram Panchayat dated 25.01.2012,

with special subject in respect of completion of

the work and in order to complete the work, Gram

Panchayat members were asked to pay the amount by

advance so as to commence and complete the work

under DPD scheme.

18. Both Additional Collector as well as

Additional Divisional Commissioner after

considering the material placed before it and upon

considering the provisions of the said Act held

15 W.P.8035.13+3

that the act of the petitioners to draw cheques

from the accounts of Gram Panchayat under Scheme

of DPDC and NRHM was the serious act, and

therefore, the petitioners are not entitled to

continue as members of the Panchayat. The

Additional Collector and also Additional

Divisional Commissioner have referred to the

dates, cheque numbers and the amount withdrawn by

the petitioners. The provisions of Section 57(A)

of the said Act reads thus:

"57A Power of panchayat to borrow. A panchayat may borrow money for the purpose of carrying out its

functions under this Act form such

body or association (whether incorporated or not) as may be approved by the State Government in

this behalf]"

19. Upon careful perusal of provision of Section

57(A) of the said Act, it is abundantly clear

that, the Panchayat may borrow money for the

purpose of carrying out its functions under the

Act from such body or association (whether

16 W.P.8035.13+3

incorporated or not) as may be approved by the

State in this behalf. Therefore, power of the

Panchayat to borrow money is only contemplated

under Section 57A of the said Act. The act of the

petitioners to advance the amount and then

withdraw it from the funds received by the

Panchayat is not in accordance with the provisions

of said Act. The contention of the learned counsel

appearing for the petitioners that Gram Panchayat

can receive the amount by way of gift or

contribution,cannot be avail to the petitioners,

since the amount advanced by them was not gifted

or contributed. The Act also provides to hold cash

imprest on hand of not more [than one hundred and

fifty] at a time, for contingent purpose of the

Panchayat under section 57(3)(d) of the Act.

20. The Supreme Court in the case of Eelia M.

Xavier Feernandes E Gonsalves(Supra), while

interpreting the provisions of section 10(f) of

Panchayats and Zila Parishads-Goa Panchayat Raj

Act, 1994 held that, 'disqualification from

17 W.P.8035.13+3

membership of panchayat for having direct or

indirect monetary or pecuniary interest in

panchayat works, such clauses of disqualification

should not receive unduly narrow or restricted

construction and said clause is required to be

interpreted in liberal manner.' The Supreme Court

while interpreting the word "interest" held that,

'it has basic meaning of participation in

advantage, profit and responsibility. It is a

right, title or share in a thing.' Para No. 17 of

the said judgment reads thus:

"17. In P. Ramanatha Aiyar's The law Lexicon, 2nd Edn.(Reprint 1999) the

term"interest" is explained thus:

"Interest- legal concern, right, pecuniary stake the legal concern of a person in the thing or property or in

the right to some of the benefits or use from which the property is inseparable; such a right in or to a thing capable of

being possessed or enjoyed as property which can be enforced by judicial proceedings. The said word is capable of different meanings, according to the context in which it is used or the

18 W.P.8035.13+3

subject-matter to which it is applied. it may have even the same meaning as the

phrase 'right title and interest' but it has been said also to mean any right in

the nature of property, but less than title. The word is sometimes employed synonymous with estate, or property.

'Interest means concern, advantage, good; share, portion, part or

participation.'

A person interested is one having an interest; i.e. a right of property, or

in the nature of property, less than title.

The word 'interest' is the broadest term applicable in claims in or upon

real estate, in its ordinary signification among men of all classes.

It is broad enough to include any right, title or estate in or lien upon real estate. One who holds a mortgage upon a piece of land for half its value is

commonly and truly said to be interested in it."

21. The Division Bench of this Court in case of

Balaji Ganpati Manmode(Supra) has considered

19 W.P.8035.13+3

similar facts situation and held that, 'the

allegations which follows by adverse inference is

that the appellant therein had interest in the

work and has most probably got it done by himself

and in order to show that the work was done from

the funds of panchayat, he has made a show of

payment in cash and then recovering it by cheques

from the panchayat.'

22. So far resolution passed by the Gram

Panchayat enabling its members to advance loan to

Gram Panchayat and then get back the said advances

by way for reimbursement is contrary to provisions

of Section 57A of the said Act. There are

allegations that the petitioners for their own

interest and for benefit of their relatives they

advanced the amount and taken back by way of

reimbursement.

23. Though, the learned counsel appearing for the

petitioners submitted that, the copies of the

record are placed on record. This Court is

informed by the learned counsel appearing for

20 W.P.8035.13+3

respondent No. 1 that, for the first time the

copies of the alleged record are produced before

this Court and the said copies were not placed

before the Additional Collector.

24. In the light of discussion herein above, and

in view of concurrent findings recorded by the

authorities below and those findings found to be

inconsonance with material placed on record and

relevant provisions of the said Act; a view taken

by authorities below appears to be plausible,

reasonable, there is no perversity in the findings

recorded by the authorities, therefore, there is

no reason for this Court to interfere in the

judgments and orders passed by the authorities

below. Hence, Writ Petitions sans merit,

therefore, same are rejected.

25. Rule stands discharged, no order as to costs.

Sd/-

[ S. S. SHINDE, J. ]

. The learned counsel for petitioners pray that

the order dated 30.09.2013 staying the elections

21 W.P.8035.13+3

for the post of Sarpanch passed by this Court may

be continued for further period of two weeks. The

said prayer is vehemently opposed by the counsel

for respondents.

. In the light of above, the Court cannot stay

the election for the post of Sarpanch, since the

members have right to elect Sarpanch as per

provisions. Hence, the prayer is rejected.

Sd/-

[ S. S. SHINDE, J. ]

MTK