Bombay High Court
Sunil Daulat Patil vs The State Of Maharashtra on 4 December, 2013
Bench: S.S. Shinde
1 W.P.3419.13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 3419 OF 2013
Sunil Daulat Patil,
Age 35 yrs. Occu. Agri.,
R/o at/post Tambole,
Tq. Chalisgaon,
District Jalgaon. ...PETITIONER
VERSUS
1. The State of Maharashtra,
Through Secretary of
Home Department, Mantralaya,
Mumbai -32.
2. The Divisional Commissioner,
Nashik Division, Nashik.
3. The Additional Collector,
Jalgaon, District Jalgaon.
4. The Zilla Parishad, Jalgaon,
Dist. Jalgaon,
Through Chief Executive Officer,
(Deleted as per leave granted
by this Court on 22.04.2013)
5. Digambar Bhagwan Kumawat,
Age 40 yrs. Occu. Business.
R/o At/Post. Tambole((Bk)
Tq. Chalisgaon,
Dist. Jalgaon ...RESPONDENTS
...
Shri S.P. Brhame, Advocate for Petitioner
Shri S.D. Kaldate, AGP for respondent Nos. 1 to 3
Shri P.B. Patil, Advocate for Respondent No. 5
...
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2 W.P.3419.13
CORAM: S. S. SHINDE, J.
Date of Reserving : 28.11.2013
the Judgment
Date of Pronouncing:04.12.2013
the Judgment
JUDGMENT :
1. Rule. Rule made returnable forthwith. By
consent heard finally.
2. The relevant facts, leading to file present
petition as disclosed in this writ petition are as
under:
. The petitioner herein was elected as Sarpanch
of Tambole Grampanchayat. It is his case that he
has discharged the duties honestly and
effectively. He conducted Gramsabha, Special
meetings and Women Gramsabha in time and as per
the requirement of law.
. Respondent No. 5 herein is political rival of
the petitioner, who initiated the proceedings of
disqualification before two different authorities
i.e. respondent No. 2 under Section 39(1) of the
Bombay Village Panchayats Act, 1948 (Hereinafter
3 W.P.3419.13
referred to as "Said Act" for short) and another
proceeding under sections 7 and 36 of the said
Act.
3. On 26.09.2012, respondent No. 5 and other
persons filed an application praying therein for
initiating the action under Section 39 of the said
Act with the Commissioner. The Commissioner
remitted the matter for enquiry to respondent
No. 4-herein. The said enquiry is pending before
respondent No. 2. It is the case of the petitioner
that he has received the notice from Deputy Chief
Officer for enquiry under Section 39(1) of the
said Act, as per directions of the Commissioner.
The petitioner appeared in the said enquiry and
put forth his contention. On 09.01.2013, the Chief
Executive Officer prepared the report on the basis
of report submitted by G.D.O. The said proceeding
was in respect of application filed under Section
39(1) of the said Act. It is further case of the
petitioner that on 16.01.2012, respondent No. 5
submitted an application for disqualification of
4 W.P.3419.13
the petitioner on the ground of not conducting
Gramsabha and Women Gramsabha under Sections 7 and
36 of the said Act. Pursuant to the notice
received by the petitioner, he appeared before the
Collector. It is the contention of the petitioner
that in the said notice there was no mention of
charges, which are supposed to be answered by the
petitioner. The petitioner did produce the
proceedings of the meetings of Gramsabha and Women
Gramsahba conducted by him. However, the
Additional Collector on 08.04.2013 passed the
order, and thereby held that the petitioner is
disqualified for not conducting the requisite
Gramsabha and Women Gramsahba etc.
4. Being aggrieved by the order dated 08.04.2013,
passed by the Additional Collector, the petitioner
has filed this Petition.
5. Learned counsel appearing for the petitioner
made following submissions:
5 W.P.3419.13
(a) It is submitted that the petitioner
herein was elected as Sarpanch of Tambole
Grampanchayat and he has conducted Gramsabhas'
on 02.10.2010, 01.12.2010, 26.01.2011,
01.05.2011, 15.08.2011, 02.10.2011 and
26.01.2012. The petitioner has also conducted
Women Gramsabhas on 01.10.2010, 25.01.2011,
08.03.2012, 30.04.2013, 14.08.2012 and
01.10.2012.
(b) It is submitted that on 26.09.2012
respondent No. 5 made complaint for
disqualification against the petitioner to
respondent Nos. 2 and 4. Pursuant to that
complaint, on 27.11.2012, the Deputy Chief
Officer has issued show cause notice under
Section 39(1) to the petitioner. The
petitioner has replied the same. It is
submitted that on 15.10.2012 report was
submitted by GDO to the Chief Officer
disclosing the Gramsabha held by the
petitioner.
submitted complaint/Dispute No. 05 of 2012 for
disqualification under Section 7 of the Act.
On 30.01.2013, a show cause notice was issued
to the petitioner without disclosing the
charges. The petitioner has submitted his say
6 W.P.3419.13
and produced on record the proceedings of
three relevant meetings.
(d) It is submitted that Mr. Salunke, the
Secretary of Gram Panchayat has submitted his
explanation dated 04.01.2013 for not
maintaining the record. On 09.01.2013 report
was submitted by Chief Officer, which was in
respect of proceeding under Section 39(1), as
per orders dated 16.01.2012. It is submitted
that on 08.04.2013 respondent No. 3 passed the
impugned order disqualifying the petitioner on
the grounds of (i)Gramsabha in November, 2011
was not held,(ii)Women Gramsahbas during
01.10.2010 to 01.10.2012 were not held and
Gramsabha dated 01.10.2012 was void for want
of Coram.
(e) Learned counsel appearing for the
petitioner submitted that no disqualification
under Sections 7(1) or 36 of the Act was
attracted. The petitioner conducted more than
four Gramsahbas as well as Women Gramsahba.
Accepting the charges as it is there is no
disqualification incurred, it is perversity
to disqualify the petitioner without
considering the above referred aspect.
7 W.P.3419.13
(f) It is submitted that it is very shocking
to disqualify the petitioner because report
dated 15.10.2012 of G.D.O and report of Chief
Officer dated 09.01.2013 would disclose that
the petitioner conducted five meetings from
April 2011 to March 2012. Overall he conducted
five meetings within a year after resuming the
office as Sarpanch. As per rules, he had
conducted nine meetings. The meeting of budget
was conducted on 10.11.2011. The proceedings
of said meeting were placed on record along
with say. Women Gramsabhas' were also
conducted. The proceedings are not blank. The
charges against the petitioner are contrary to
the record.
(g) It is further submitted that no
disqualification can be incurred under
Sections 7 or 36 of the Act, if Gramsahba was
conducted, but there was no Coram or the
proceedings book was improperly written and
kept blank. As per Section 54C(1) a Secretary
is under obligation to maintain the
proceedings of Gramsahba. A Sarpanch cannot be
held liable for the said irregularities. A
Sarpanch is not liable for the
disqualification for non-observance of other
requirement of Section 7.
8 W.P.3419.13
(h) It is submitted that disqualification is
penal and it has grave consequences. It is not
attracted for minor irregularities or for
every aberration.
(i) It is submitted that justification of
Secretary Mr. Himmatrao Salunke on 14.01.2013
is totally overlooked by the Additional
Collector. The said explanation was part of
the report submitted by the Chief officer
dated 09.01.2013. Mr. Salunke was under
obligation to maintain the record, but he
could not do so because of burden of work. The
petitioner cannot be faulted because of the
lapses in that regard.
(j) It is submitted that the findings
recorded by the learned Additional Collector
in the impugned order are not supported by any
reasons. The report submitted by Chief Officer
and G.D.O. were mechanically accepted. There
is no discussion regarding the difference
between Sections 7(1) and 7(5) or the
parameters of disqualification provided by
Sections 7(1) and 36 of the said Act.
(k) It is submitted that no charges were
communicated. Thus, no proper opportunity was
given to the petitioner. He was having record
9 W.P.3419.13
to show that requisite meetings were conducted
by him and he has discharged the duties. It is
further submitted that the learned Collector
has committed gross illegality in relying upon
the report of G.D.O. dated 15.10.2012 and
report dated 09.01.2013 of Chief Officer.
These two reports were predominantly
pertaining to the allegations under Sections
39(1). There is no enquiry for charges under
Sections 7 and 36.
6. Learned counsel appearing for the petitioner
in support of aforesaid submissions, placed
reliance on the following citations:
(1) Gangabai Vithal Bade Vs. State of
Maharashtra and others reported in
2013(3)Bom.C.R. 277.
(2) Pratibha Sanjay Hulle Vs. Additional
Collector and others reported in 2010(4)
Bom.C.R. 700.
(3) Shubhangi Anil Gawande and another Vs.
Additional Collector and others reported
in 2010(6)Bom.C.R. 343.
(4)Vilas Sanjay Pawar Vs. Pandhairnath
Tukaram Kotsulwar and others reported in
2009(Supp.) Bom.C.R. 903.
10 W.P.3419.13
7. The learned counsel appearing for the
petitioner, relying upon the pleadings in the
petition annexures thereto and aforesaid
provisions of the Bombay Village Panchayats Act
and also law laid down by High Court in
aforementioned case laws submitted that the
petition deserves to be allowed.
to 3 relying upon the reasons recorded by the
Additional Collector in the impugned order
submitted that the petition is devoid of any
merits and the same may be dismissed.
9. Learned counsel appearing for respondent No. 5
has made following submissions.
(i) It is submitted that proceeding under
Section 39(1) of the said Act, which is
before the Chief Executive Officer as well
before the Commissioner, Nashik and after
enquiry conducted by the Deputy Chief
Executive Officer, is till pending against the
petitioner.
11 W.P.3419.13
(ii) It is submitted that for declaration of
disqualification under Section 39(1) of the
said Act, before the learned Divisional
Commissioner, Nashik, in which the powers are
vested to the Commissioner under Section 39(1)
to remove any members or any Sarpanch or Up-
Sarpanch, who has been guilty of misconduct in
the discharge of his duties and proceeding
under Section 7 of the said Act.
(iii) It is submitted that proceeding under
Section 7 of the said Act bearing Dispute
No. 5 of 2013 filed by respondent No. 5,
before the Additional Collector against the
petitioner for declaration of disqualification
of the petitioner on the ground that the
petitioner being Sarpanch fails without
sufficient cause to hold such four meetings by
virtue of the provisions of Section 7 and
failed to hold Women Gramsahba and fails to
convey the meetings of the Panchayat in any
financial year as per the provisions of
Section 36 of the said Act and according to
Rules prescribed in that behalf and in this
proceeding, the Additional Collector has been
disqualified the petitioner by order dated
08.04.2013. Both the proceedings are
independent and powers are vested to the
different authorities.
12 W.P.3419.13
(iv) It is submitted that after filing of the
proceeding under Section 7 of the said Act, a
notice was issued by the Collector to the
petitioner and thereby called upon to submit
his say. It is submitted that the petitioner
has submitted his detailed reply and seriously
contested the said proceeding after due
opportunity of hearing and said fact has
admitted by the petitioner in para No. 5 of
the petition.
(v) It is submitted that there is no
provisions in the said Act that at the time of
holding inquiry and preparation of report by
the Chief Executive Officer or Deputy C.E.O,
of the proceeding or dispute relating under
Section 7 of the said Act to give an
opportunity of hearing on charges to such
member or person concern.
(vi) It is submitted that there is provision
to give an opportunity of hearing on charges,
under Section 39(1)'s proceeding as proviso
(ii) of Section 39 of the said Act, and the
record of Writ petition shows that in the
proceedings under Section 39, the petitioner
was called upon for hearing on charges by the
Deputy C.E.O. vide its notice dated
27.11.2012.
13 W.P.3419.13
(Vii) It is submitted that after scrutiny of
documentary evidence on record and after
giving sufficient opportunity of hearing to
the petitioner, respondent No. 3 - Authority
has passed the order dated 08.04.2013 and
thereby rightly disqualified the petitioner as
per the provisions of Sections 7, 36 and 54C
(5) of the said Act, on the ground that the
petitioner failed to hold such meetings and
Gramsahba of the month of November 2011, even
he failed to convey Women Gramsahba from
01.10.2010 to 01.10.2012 i.e Gramsahba and
petitioner has not maintained the record of
the meetings and the same is found blank and
meetings were hold without sufficient
Coram.
(Viii) It is submitted that the report dated
15.10.2012, prepared by the B.D.O and
submitted to the Dy. C.E.O shows that there
are various illegality and irregularities are
appeared on the part of the petitioner. At the
time of holding of Gramsahba dated 01.12.2010,
there was no sufficient Coram, as per rules.
It is very shockingly appeared in the said
proceedings that advanced chronicle history of
the year 2012 was mentioned, as said Gramsahba
was held on 01.12.2010.
14 W.P.3419.13
(ix) In the report dated 15.10.2012, it is
also mentioned at item No. 5, in relation to
Gramsahba dated 15.08.2011 that, there was
Coram but page Nos. 87 and 88 are appeared
blank of the said meeting. There is no history
of Gramsabha dated 15.8.2011. Page Nos. 92 to
96 of the Gramsahba dated 02.10.2011 are
blanked, history of said proceedings was not
written and there are no signatures of the
present members.
(x) It is further submitted that, if
proceedings of Gramsabhas dated 26.01.2012,
01.05.2012 and 02.10.2012 are perused, in the
chart it is mentioned that there is no subject
and page Nos. 8 and 9 and 22 to 24 are blank
and if Page Nos. 66 and 68 of the Gramshabas
dated 26.01.2012 and 01.05.2012 are perused,
there is left blank space in signatures column
and there appears same experience that there
is no history or chronicle is mentioned in the
proceedings of such meetings.
(xi) It is submitted that, if proceedings of
Gramsabhas dated 26.01.2011, 01.05.2012 to
15.08.2012 are perused, it would show that
said Gramsabhas' are incomplete and conducted
that too incomplete nature and after lapse of
more than three months in contravention of
15 W.P.3419.13
mandatory provisions of law and said
Gramsabhas has not taken and conveyed as per
Second proviso that of Section 7 of the said
Act, which is mandatory on the part of the
petitioner.
(xii) It is further submitted that the record
further shows that in terms of Circular dated
30.09.2000, four Gramsahba meetings are to be
held on 26th January, 1st May, 15th August and
2nd of September, which were mandatory on the
part of the petitioner as per the provisions
of Sections 7 and 36 of the Amended
Maharashtra Village Panchayat Act 1958 and the
proviso of Section 36 shows that, "Provided
that, if the Sarpanch or in his absence Up-
Sarpanch, fails without sufficient cause, to
convene the meetings of the Panchayat in any
financial years according to the Rules
prescribed in that behalf, he shall be
disqualified for continue as Sarpanch."
(xiii)It is submitted that a report dated
15.10.2012 shows that in the month of November
2011, financial year Gramsabha was not held by
the present petitioner, on such dates and such
time as may be fixed by Sarpanch, which is
mandatory by virtue of provisions of Section
36 and sub-rule(1) of Rule 3 of the Bombay
16 W.P.3419.13
Village Panchayats (Gramsabha Meetings) Rules
1959. This incomplete meetings' proceedings of
Gramsahba shows that there were no notices of
an ordinary meeting of the Gramsabha, which is
mandatory and shall be given at least seven
days before such meeting, as per Rule 5.
(xiv)It is submitted that in the proceedings
of meeting, it is not appeared and not
mentioned that the minutes of the previous
meeting has been read over in the beginning of
every meeting and shall be confirmed and
signed by the person Presiding at the meeting,
which is mandatory as per Rule 11 of the
Bombay Village Panchayats (Gramsabha Meetings)
Rules 1959.
(xv)It is submitted that in the report dated
15.10.2012 of the B.D.O. and report dated
09.01.2013 of the C.E.O of Zilla Parishad, it
would show that, there are serious illegality
and irregularities are appeared at the time of
conducting of Gramshaba and financial year
Gramsabha and Women Gramsabha on the part of
the petitioner. In some proceedings no
sufficient Coram is appeared, in the various
of Gramsahba no history was written, no
previous history is taken in to next Gramsahba
and no date, place and time is fixed of next
17 W.P.3419.13
Gramsahba as per the mandatory sub-rule(3) of
Rule 3 of the Bombay Village Panchayats
(Gramsabha Meetings) Rules 1959.
(xvi) It is submitted that the petitioner has
also not conveyed Women Gramshaba as per
mandatory provisions of Sub-section (5) of
Section 7 of the said Act. If sub-Section (5)
of Section 7 of Bombay Village Panchayat
Act(Amended Maharashtra Village panchayat Act
1958) is perused, it would show that the
meeting of the woman members of Gramsabha
shall be held before every regular meeting of
the Gramsabha conveyed under sub-section(1).
But in this matter, the report dated
15.10.2012 of the B.D.O. and report dated
09.01.2013 of the C.E.O are prepared after
scrutiny of record of said proceedings, which
show that there was no subject of Women
Gramshaba is mentioned and not only this same
experience has been appeared in all six Women
Gramsabha, endorsement of history of all
proceedings are appeared blank and the same
are not conducted as per provisions of Sub-
Section (5) of Section 7 of the said Act.
(xvii) It is submitted that the petitioner
has committed mistake, various illegalities,
irregularities and he has lost the confidence
18 W.P.3419.13
of the villagers. The petitioner was not
diligent and he has not discharged the duties
honestly and effectively as Sarpanch and
committed misconduct by manipulating meeting
proceedings of Gramsahba in collusion with
Gram-sevak and the Gram-sevak subsequently
completed the proceedings by making false
signatures of villagers and adding history of
proceeding. Respondent No. 3 authority has
rightly disqualified the petitioner after
scrutinizing the evidence on record.
10. Learned counsel appearing for respondent No. 5
in support of above mentioned submissions relied
upon the following citations:
(A) Gunwantrao Yeshwantrao Deshmukh Vs.
State of Maharashtra and another reported
in [1981 Mh.L.J.815]
(B)Nanasaheb Dhondiram Mundhe Vs.
Additional Collector and others reported
in 2010(4) Bom. C.R. 823.
11. Therefore, relying upon the reasons recorded
by the Collector and arguments advanced across the
bar and the grounds taken in the writ petition and
19 W.P.3419.13
annexures thereto learned counsel appearing for
respondent No. 5 has submitted that the petition
is devoid of any merits and deserves to be
dismissed.
12. I have given careful consideration to the
submissions made by the learned counsel appearing
for the petitioner, 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 order passed by the Additional Collector,
original record available for perusal and also
provisions of the Said Act and also judgments of
this Court cited across the bar by the learned
counsel appearing for petitioner and respondent
No. 5.
13. At the outset, it would be apt to reproduce
herein below the contents of the notice issued by
the Additional Collector, Jalgaon, dated
30.01.2013 to the present petitioner, which reads
20 W.P.3419.13
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 [email protected]@2013
P;k i+=kUo;s vgoky lknj dsyk vkgs- izLrqr dkeh pkSd'khdjhrk
fnukad [email protected]@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-"
14. Upon careful perusal of the contents of the
notice, which was issued to the petitioner under
Sections 7 and 36 of the said Act, it is
abundantly clear that there is no mention of any
specific charges-points, which are required to be
answered by the petitioner. This Court in the case
of Pratiba Sanjay Hulle Vs. Additional Collector &
others reported in 2010(4)Bom.C.R.700, more
particular, in para No. 36 held that, 'to enable
Sarpanch to raise proper defence and explain
21 W.P.3419.13
sufficient cause for his failure to perform any
statutory function, he must be informed
essentially as regards his failure meaning thereby
he must be communicated the specific charges.'
15. In the facts of that case, the allegation was
that the petitioner therein i.e. Sarpanch, did not
perform his statutory obligation as envisaged
under Sections 7 and 36 of the said Act. This
Court taking into consideration the fact that the
specific charges were not communicated to the
petitioner therein, held that enquiry and the
order passed against the petitioner therein is
vitiated.
16. In the facts of the present case, as already
observed, in notice there are no specific charges
mentioned so as to enable the petitioner to answer
the said charges in his defence. In that view of
the matter and in view of law laid down by this
Court in the case of Pratibha Hulle(Supra), in the
facts of the present case also, enquiry and the
order passed by the Additional Collector stand
22 W.P.3419.13
vitiated for non-compliance of basic principles of
natural justice. Therefore, on this ground the
enquiry conducted by the Officers and order passed
by the Additional Collector deserve to be quashed
and set aside.
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
23 W.P.3419.13
petition deserves to be allowed.
18. Accordingly, the petition is allowed in terms
of prayer clause(C). Rule made absolute in above
terms. The petition stands disposed of.
Sd/-
[ S. S. SHINDE, J. ]
. At this stage, learned counsel appearing for
respondent No. 5 prays for stay to the
implementation of this order, passed by this
Court.
. The prayer is vehemently opposed by the
counsel for petitioner.
. In the light of above, prayer stands rejected.
Sd/-
[ S. S. SHINDE, J. ]
MTK
24 W.P.3419.13
