Sou. Chetnabai W/O Jagdish ... vs The State Of Maharashtra, Through ...
2016 Latest Caselaw 3092 Bom

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                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     




                                                
                              NAGPUR BENCH, NAGPUR.


     WRIT PETITION NO.3523 OF 2014




                                               
     Sou. Chetnabai w/o Jagdish Bawanthade,
     Aged about 28 years, 
     Sarpanch, G.P. Sukli, 




                                      
     R/o Sukli, Tq. Tirora, District Gondia.             ....       PETITIONER


                        VERSUS
                             
                            
     1) The State of Maharashtra, 
         through the Commissioner, Nagpur 
         Division, Nagpur. 
      


     2) The Additional Commissioner, 
   



         Nagpur Division, Nagpur. 

     3) Sanjay Eknathji Chandrikapure,
         Aged - Major,





     4) Pralhad Tikaram Dakhane, 
         Aged - Major, 

     5) Parmanand Somaji Gabhane, 





         Aged - Major, 

     6) Chhayabai Pundlik Uke, 
         Aged - Major, 
        
         Respondent Nos.3 to 6 having 
         Occupation - Business, R/o Sukli, 
         Tq. Tirora, District Gondia.

     7) Housilal Jaitram Patle,
         Aged - Major, Occupation - Secretary



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         to Sukli GP, R/o Sukli, Tq. Tirora,




                                                              
         District Gondia.

     8) Chief Executive Officer,
         Gondia Z.P., Gondia.                                          ....       RESPONDENTS




                                                             
     ______________________________________________________________

                  Shri S.S. Godbole, Advocate for the petitioner,




                                                
            Mrs. H.N. Prabhu, A.G.P. for the respondent Nos.1 and 2,
             Shri G.G. Bade, Advocate for the respondent Nos.3 to 6,
                      None for the respondent Nos.7 and 8. 
                             
      ______________________________________________________________
                            
                                   CORAM : Z.A. HAQ, J.

DATED : 22 nd JUNE, 2016

ORAL JUDGMENT :

1. Heard Shri S.S. Godbole, Advocate for the petitioner, Mrs.

H.N. Prabhu, Assistant Government Pleader for the respondent Nos.1

and 2 and Shri G.G. Bade, Advocate for the respondent Nos.3 to 6.

2. The petitioner is elected as Sarpanch on 12-11-2012. The

respondent Nos.3 to 6 filed complaint against the petitioner alleging

that she has indulged in irregularities and illegalities and had

interpolated with the record of Gram-Panchayat. An enquiry under

Section 39 of the Maharashtra Village Panchayats Act was directed.

The enquiry was conducted by the Village Development Officer who

submitted his report to the Chief Executive Officer who in turn

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forwarded report to the Divisional Commissioner. The impugned order

is passed by the Additional Commissioner on the basis of the report

submitted by the Chief Executive Officer.

3. The learned Advocate for the petitioner has submitted that

the enquiry under Section 39(1) of the Maharashtra Village Panchayats

Act is required to be conducted by the Chief Executive Officer and he

cannot delegate the authority to any other officer or subordinate. To

support the submissions, reliance is placed on the judgment given in

the case of Nimba Yadav Bhoi vs. President, Standing Committee,

Zilla Parishad, Jalgaon and others reported in 2002(3) Mh.L.J. 466.

4. The learned Advocate for the respondent Nos.3 to 6 has

submitted that the petitioner should have challenged the impugned

order under Section 39(3) of the Maharashtra Village Panchayats Act

before the State Government and in view of the fact that the petitioner

has alternate remedy, this petition need not be entertained.

The submission made on behalf of the respondent Nos.3

to 6 is not accepted at this stage as Rule came to be issued on 01-12-

2014 after hearing the respondents.

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5. The learned Advocate for the respondent Nos.3 to 6 tried

to justify action of the Chief Executive Officer by submitting that the

report is prepared by the Chief Executive Officer on the basis of the

material collected by the Village Development Officer. It is undisputed

that the Village Development Officer conducted the enquiry in which

he examined some witnesses. Considering the proposition laid down

in the judgment given in the case of Nimba Yadav Bhoi, the challenge

raised on behalf of the petitioner has to be accepted and it has to be

held that the report submitted by the Chief Executive Officer is not

legal and proper as he himself has not conducted the enquiry as

required by Section 39(1) of the Maharashtra Village Panchayats Act.

6. In view of the above, the impugned order which based on

the unsustainable report submitted by the Chief Executive Officer is

required to be set aside.

Hence, the following order :

(i) The impugned order is set aside.

(ii) The matter is remitted to the Chief Executive Officer, Zilla

Parishad, Gondia for conducting enquiry under Section

39(1) of the Maharashtra Village Panchayats Act.

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(iii) The Chief Executive Officer shall conduct the enquiry and

shall submit his report to the Divisional Commissioner till

29-08-2016.

(iv) Rule is made absolute in the above terms. In the

circumstances, the parties to bear their own costs.

                                    ig                                               JUDGE
                                  
    adgokar