Vithal Laxman Shirsath And Others vs The State Of Maharashtra And ...
2014 Latest Caselaw 36 Bom

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              IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                          BENCH AT AURANGABAD




                                                        
                             WRIT PETITION NO.10324 OF 2014

    Vithal Laxman Shirsath and others                                   Petitioners




                                                       
    Versus        
    The State of Maharashtra and others                                 Respondents

Mr.B.S.Kudale, Advocate for the petitioners.

Mr.G.K.Naik Thigle, Addl.G.P. for respondent Nos. 1 to 3.

ig ( CORAM : RAVINDRA V. GHUGE, J.)

DATE : 03/12/2014

PER COURT :

1. I have heard the learned Advocate for the petitioners and the

learned A.G.P. on behalf of respondent Nos. 1,2 and 3 at length.

2. These are 5 petitioners who have been elected as a members of

the Gram Panchayat of village Jalki Bazar, Tq.Sillod,

Dist.Aurangabad. There are in all 7 members. The post of Sarpanch

and Upa-sarpanch has been reserved for the women category.

Respondent Nos.4 and 5 are the Sarpanch and Upa-sarpanch of the

said Gram Panchayat, respectively.

3. The petitioners contend that there are certain allegations

against the Sarpanch. They have never contended that being a

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woman Sarpanch, 3/4th majority is required for passing a No

Confidence Motion against her and that the petitioners don't have

such majority. The petitioners hasten to clarify that they never had

any intention to move No Confidence Motion against the Sarpanch

and Upa-sarpanch.

4. On 02/07/2014, all the petitioners tendered their resignation

from their post and submitted the same to respondent Nos. 3 and 4.

The same was placed in a meeting convened on 24/07/2014 and the

resignations of the petitioners were discussed, verified and were

accepted by passing a resolution. The petitioners re-iterate that their

resignations were voluntary, by their own free will and desire. The

same have not been tendered either under force, duress or coercion.

5. The Tahsildar submitted the said resolution and the

resignations to the District Collector, Aurangabad, who is the

appropriate authority, on 13/08/2014. In turn, the Collector

prepared his report u/s 145(1A) of the Maharashtra Village

Panchayats Act and submitted the same to the Divisional

Commissioner, Aurangabad, Division Aurangabad.

6. On 21/10/2014, after receiving the proposal from the

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Collector's Office, the Divisional Commissioner has issued notices to

the parties. The petitioners have submitted their reply and accorded

reasons behind their resignations and have expressed a grievance

about the lady Sarpanch. By an order dated 29/10/2014, the

Divisional Commissioner, Aurangabad directed holding of bye

elections for filling in the vacancies caused due to the resignations of

the petitioners. The said decision has been challenged in this

petition.

7. Contention of the petitioners is that since there are allegations

against the Sarpanch, respondent No.2 Divisional Commissioner was

under an obligation to exercise his powers u/s 145(1A) and thereby

dissolve the entire Gram Panchayat. Further contention is that

when 5 members have resigned, the Gram Panchayat would not have

been in a position to perform its functions in a manner as is

expected.

8. Reliance is placed upon the judgment of the learned Single

Judge of this Court in the matter of Aashabai w/o Vilas Wagh and

others Vs. State of Maharashtra and others, 2008(6) ALL MR 825, the

Division Bench judgment of this Court in the matter of Omprakash

Kawaduji Desai and others Vs. State of Maharashtra and others,

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2009(5) Mh.L.J. 322, and the Division Bench judgment of this Court

in the case of Sou.Jamuna Mahadeo Dalvi and others Vs. The State

of Maharashtra and others, 2012(4) ALL MR 970.

9. Learned Addl. G.P., appearing on behalf of the said

respondents, submits that there is no mandate of law that the

discretion vested in the Divisional Commissioner, ought to be

exercised only by passing an order of dissolution. It is not that the

Divisional Commissioner can not apply his mind and come to a

decision in his wisdom. He submits that the Divisional Commissioner

has considered the report of the Collector and has taken into account

the fact that the Collector has not submitted a report that the Gram

Panchayat should be dissolved as is misconstrued by the petitioners.

10. He, therefore, submits that the Divisional Commissioner, upon

application of mind and after hearing the concerned parties including

the petitioners, who had in fact resigned and were no longer in their

position as a member of the Gram Panchayat, has concluded that bye

elections to the vacancies created on account of the resignations of

the petitioners, appears necessary and imminent. Learned Additional

G.P. further submits that the Divisional Commissioner has relied

upon the observations of this Court in the matter of Daulat s/o

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Sheku Gadekar Vs. The State of Maharashtra, in Writ Petition

No.8011/2012 decided on 29/11/2012.

11. Having considered the submissions of the learned Advocates, I

have gone through the petition paper book with their assistance and

have considered the judgments cited.

12.

It appears from the contentions of the petitioners that they are

under an impression that the Collector, Aurangabad, by his report

dated 22/09/2014, has re-commended to the Divisional

Commissioner, the dissolution of the Gram Panchayat. I have gone

through the said report threadbare. It clearly emerges from the said

report that the Collector has submitted his report indicating that 5

Gram Panchayat members have resigned and their posts have fallen

vacant. Since there is a vacancy, the Divisional Commissioner is

required to advert to Section 145(1A) of the Maharashtra Village

Panchayats Act and take a decision as to whether the Gram

Panchayat should be dissolved or that the elections be ordered so as

to fill in the vacancies.

13. The impugned order dated 29/10/2014 is a well reasoned

order. The Divisional Commissioner has heard all the parties

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concerned and has once again gone into the factum of the

resignations of the petitioners.

14. Two of the petitioners namely Sau.Manglabai Ganesh Dandge

and Shri Vithal Laxman Shirsath have submitted representations

dated 21/10/2014 to the Divisional Commissioner in order to

impress upon him that the petitioners have resigned because they

are fed up with the Sarpanch Sau.Devshala Rajendra Dandge.

Reasons set out are such that they require proper investigation and

enquiry. Mere allegations being made, would not mean that the

Sarpanch is guilty of having committed mis-deeds or mis-demeanors.

15. Considering the whole issue with due circumspection, the

Divisional Commissioner finally arrived at a conclusion that there

seems to be antipathy in the minds of the petitioners as against the

lady Sarpanch.

16. A motion of No Confidence u/s 35(3) of The Maharashtra

Village Panchayats Act and the Rules of 1959 and 1975 applicable,

th mandates 3/4 majority for passing the No Confidence Motion . With

the given strength of members of the said Gram Panchayat, six

persons were required to constitute 3/4th majority, which the

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petitioners did not have since the remaining two persons are the

Sarpanch and Upa-sarpanch. Nevertheless, he has considered the

situation and has ordered that the elections be held so as to fill in 5

vacancies which have been created on account of the resignations of

the petitioners.

17. In the case of Aashabai w/o Vilas Wagh (supra), 5 members out

of 11 had resigned. Some members had approached the

Commissioner. Notices were issued to all the members and they

were heard. Discretion was exercised by the Commissioner in

dissolving the Gram Panchayat. This Court came to a conclusion

that the Commissioner ought to have assigned independent reasons

while drawing a conclusion that dissolution of the Gram Panchayat

was the only option available by which the remaining elected

representatives were unseated. This Court, therefore, quashed the

decision of the Commissioner of dissolving the Gram Panchayat.

18. In the Division Bench judgment of this court in the case of

Omprakash Kawaduji (supra), the Divisional Commissioner had

exercised his discretion and dissolved the Gram Panchayat when 7

out of 13 members had resigned and the same were accepted. The

decision of the Commissioner was upheld since he had made specific

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observations to the effect that the work of the Village Panchayat

could be hampered and therefore the dissolution ordered to hold

fresh elections, was, in his discretion, a better option.

19. The judgment of the Division Bench of this Court in the case of

Jamuna Mahadeo Dalvi (supra) is also on similar lines. ½ of the

members of the Gram Panchayat tendered their resignations and did

not withdraw the same. Upon enquiry, it appeared that the

resignations were given voluntarily. Statements of the resigned

members were recorded. The issue as regards the dissolution of the

Gram Panchayat was not before the Court in the said case.

20. The Divisional Commissioner, in the instant case, while issuing

the impugned order, has relied upon an order of this Court passed on

similar set of facts dated 29/11/2012, in the case of Daulat Sheku

Gadekar (supra). Out of 7 members, 4 had resigned. The resignation

was held to be voluntary after conducting an enquiry. The Divisional

Commissioner opined not to dissolve the Gram Panchayat so that

elections to the vacancies could be held.

21. This Court, in the case of Daulat Sheku Gadekar (supra) has

observed and I agree with the same, that there was no evidence

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which could establish that the remaining members had abused their

powers and had committed default in performance of their duties.

This Court held that merely because the petitioners so desire,

remaining members who are duly elected by following the Rule of

Democracy, could not have been unseated by dissolving the Gram

Panchayat.

22.

This Court further noted that Section 145 of the Act gives

ample discretion to the Government, either to dissolve the Panchayat

or declare elections. Dissolution is not the only option available.

Holding elections only to the extent of filling in the vacancies, is

supported by a good reason that the expenditure on the part of the

Government could be avoided and that the elections were held only 2

years ago and the remainder tenure was practically of 3 years.

23. Upon taking an overall view of the matter and in the light of the

judgments cited, I find that the judgment in the case of Omprakash

Kawaduji (supra), does not assist the petitioners since it was a case

wherein the dissolution decision was upheld. In the case of Aashabai

w/o Vilas Wagh (supra), the decision to dissolve the Gram Panchayat

was interfered with and set aside since this Court concluded that

dissolution was not the only option and was not necessary when

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elections to fill in the vacancy could be held. In the case of Jamuna

Mahadeo Dalvi (supra), the issue of dissolution was not before the

Court.

24. It appears from the record before this Court that the petitioners

are targeting the Sarpanch. Being a lady Sarpanch and supported

by another lady Upa-sarpanch, these 5 petitioners have come

together hoping that their resignations would lead to the dissolution

of the Gram Panchayat. From the representation dated 21/10/2014,

filed by 2 of the petitioners to the Divisional Commissioner, clearly

indicates that the desire of the petitioners was to oust the Sarpanch

indirectly, which they could not have done directly by resorting to

Section 35 in passing a No Confidence Motion against her as the

petitioners did not have 3/4th of majority as required under the

proviso to Section 35(3).

25. I am unable to accept the contention of the petitioners that the

Divisional Commissioner ought to have dissolved the Gram

Panchayat as 5 out of the 7 members had resigned and that no

reasons have been assigned to support the impugned order. In my

view, the Divisional Commissioner would be required to assign strong

reasons and state the compelling circumstances, if the Gram

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Panchayat is to be dissolved. The petitioners have resigned and

therefore are no longer members. Their desire cannot overbear the

wisdom and discretion of the Divisional Commissioner in coming to

an appropriate decision.

26. To their misfortune, the desire of the petitioners was not

fulfilled when the Divisional Commissioner rightly exercised his

discretion u/s 145(1A) of the Maharashtra Village Panchayats Act

and refused to dissolve the Gram Panchayat. Their design to resign

boomeranged on them.

27. In the light of the above, the petitioners have failed in making

out a case of perversity or error in the decision of the Divisional

Commissioner. The petition is devoid of merits and is therefore

dismissed. Though I find that this is a fit case for imposing costs,

the learned Advocate for the petitioners has prayed that no costs be

imposed. Hence, no order as to costs.

( RAVINDRA V. GHUGE, J.)

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