Bombay High Court
Shri. Amitkumar Nanasaheb ... vs State Of Maharashtra Through ... on 22 November, 2016
Bench: R.M. Savant
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8543 OF 2015
1] Shri Amitkumar Nanasaheb Bhosale ]
Age : Adult, Occ : Agriculture ]
]
2] Sou.Suvarna Aappaso Kumbhar ]
Age : Adult, Occ : Housewife ]
]
3] Shri Sanjay Aannappa Aambi ]
Age : Adult, Occ : Agriculture ]
]
4] Shri Prasad Mahadev Mane ig ]
Age : Adult, Occ : Agriculture ]
]
5] Shri Raju Pundalik Koli ]
Age : Adult, Occ : Agriculture ]
]
6] Shri Babaso Hindurao Kambale ]
Age : Adult, Occ : Agriculture ]
]
7] Shri Nemgonda Baba Patil ]
Age : Adult, Occ : Agriculture ]
]
8] Sou.Sheetal Aadinath Khot ]
Age : Adult, Occ : Housewife ]
]
9] Shri Aalamgir Jalalso Mujavar ]
Age : Adult, Occ : Agriculture ]
]
10] Shri Sanjay Aananda Londhe ]
Age : Adult, Occ : Agriculture ]
]
11] Shri Mustak Makbul Mulla ]
Age : Adult, Occ : Agriculture ]
]
12] Sou.Lalita Anil Rukadikar ]
Age : Adult, Occ : Housewife ]
]
13] Sou. Bharati Arvind Parit ]
Age : Adult, Occ : Housewife ]
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1 to 13 are Ex-Member of Grampanchayat ]
Rukadi. All are R/at Post : Rukadi ]
Tal. Hathkalangane Dist. Kolhapur ]..... Petitioners.
Versus
1] State of Maharashtra through ]
Minister (Rural Development) ]
]
2] Divisional Commissioner, Pune ]
Region, Pune ]
]
3] Chief Executive Officer, ]
Zilla Parishad, Kolhapur ]
]
4] Block Development Officer ig ]
Panchayat Samiti Hathkalangane ]
Dist. Kolhapur ]
]
5] Development Officer (Panchayat) ]
Panchayat Samiti Hathkalangane ]
Dist. Kolhapur ]
]
6] Gramsevak Grampanchayat Rukadi ]
Tal : Hathkalangane, Dist. Kolhapur ]
]
7] Shri Sanjay Aannaappa Kambale ]
R/at Rukadi, Tal : Hathkalangane, ]
Dist : Kolhapur ]..... Respondents
Mr. R S Kadam for the Petitioners.
Mr. S D Rayrikar AGP for the Respondent Nos.1 and 2.
Mr. R D Rane for the Respondent Nos.3 and 4.
Respondent Nos.5 and 6 are deleted.
CORAM : R. M. SAVANT, J.
DATE : 22nd November 2016
ORAL JUDGMENT
1 At the outset the learned counsel for the Petitioners seeks deletion
of the Respondent Nos.5 and 6 from the array of the Respondents as they are
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formal parties. The said Respondent Nos.5 and 6 are accordingly allowed to be
deleted. Amendment to be carried out forthwith.
2 Rule, with the consent of the learned counsel for the parties made
returnable forthwith and heard.
3 The writ jurisdiction of this Court is invoked against the order
dated 16/06/2015 passed by the Hon'ble Minister for Rural Development,
Government of Maharashtra by which order the Appeal filed by the Petitioners
came to be dismissed and resultantly the order dated 12/04/2013 passed by
the Divisional Commissioner, Pune Division, Pune came to be confirmed.
4 The facts giving rise to the filing of the above Writ Petition can in
brief be stated thus :-
The Petitioners herein were the members of the Grampanchayat
Rukadi for the term 2008 to 2012. The Respondent No.7 herein is the resident
of the said village Rukadi who had made an application to the Respondent
No.3 herein alleging various illegalities and irregularities committed by the
Petitioners as members of the said Grampanchayat. On receipt of the said
application of the Respondent No.7, the Respondent No.4 herein i.e. the Block
Development Officer forwarded the same to the Respondent No.3 herein i.e.
the Chief Executive Officer, Zilla Parishad, Kolhapur for taking action against
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the Petitioners under Section 39 of the Bombay Village Panchayat Act, 1958
(for short "the said Act"). The Petitioners in reply to the said application
addressed a communication to the Respondent No.3 inter-alia stating their
defence to the said application. It seems that the Respondent No.3 forwarded
his report to the Respondent No.2 herein for the purpose of facilitating action
to be taken under Section 39 of the said Act against the Petitioners. The
Petitioners were thereafter called for hearing by the Respondent No.2. The
Respondent No.2 by his order dated 12/04/2013 allowed the said application
filed by the Respondent No.7 and directed recovery of the amount of
Rs.4,90,000/- as also directed that having regard to Section 39(2) of the said
Act the Petitioners would stand disqualified for a period of not less than 5 years
from the date of the said order.
5 The Petitioners aggrieved by the said order dated 12/04/2013
passed by the Respondent No.2 filed an Appeal under Section 39(3) of the said
Act before the State Government. The Appellate Authority i.e. the Hon'ble
Minister for Rural Development, Government of Maharashtra by the impugned
order dated 16/06/2015 has dismissed the said Appeal and thereby confirmed
the order passed by the Respondent No.2 herein under Section 39(2) of the
said Act. As indicated above it is the said order dated 16/06/2015 passed by
the Appellate Authority confirming the order dated 12/04/2013 passed by the
Divisional Commissioner, Pune Division, Pune which is taken exception to by
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way of the above Petition.
6 The principal contention urged by the learned counsel for the
Petitioners is that recourse to Section 39(2) could not have been taken by the
Respondent No.2 in view of the fact that the said provision is not attracted to
the case of the Petitioners as the said provision applies only in the eventuality
of the member, Sarpanch or Upa-Sarpanch resigning. It was the submission of
the learned counsel for the Petitioners that in the instant case the Petitioners at
the highest could have been removed for the remainder of the period of their
term. However, since in the instant case by the time the Respondent No.2 had
passed the order dated 12/04/2013, the term of the Petitioners was already
over, the Petitioners could not even be removed for the remainder of the
period of their term.
7 The learned counsel for the Respondent Nos.3 and 4, and the
learned AGP for the Respondent Nos.1 and 2 sought to justify the order passed
by the Respondent No.2 as confirmed by the order passed by the State
Government i.e. the Hon'ble Minister for Rural Development in the Appeal.
8 The issue that arises for consideration is whether in the fact
situation of the present case where undisputedly the term of the Petitioners
was already over by the time the Respondent No.2 had passed the order, the
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Respondent No.2 could have invoked the provision of Section 39(2) of the said
Act. The said provision i.e. Section 39(2) as it stood prior to it being
substituted on 21/12/2006 read thus :-
"(2) The Standing Committee may subject to like
condition disqualify for a period of not exceeding five
years, any person who has resigned his office as a
member, Sarpanch or Up-Sarpanch and has been
guilty of the acts and ommission specified in sub-section
(1) :
Provide that such action is taken within a reasonable
time after such resignation."
After the substitution the said provision reads thus :-
"(2) The Commissioner may subject to like condition
disqualify for a period of not exceeding five years, any
person who has resigned his office as a member,
Sarpanch or Up-Sarpanch and has been guilty of the
acts and ommission specified in sub-section (1)"
Hence a plain reading of Section 39(2) of the said Act prior to the substitution
and after the substitution would indicate that the same would be applicable in
the event a member, Sarpanch or Upa-Sarpanch resigns and has been held
guilty of the acts and commissions specified in sub-section (1) of Section 39 of
the said Act. In the instant case the Petitioners have completed their entire
term i.e. from 20/08/2007 till 27/11/2012 and therefore the said Section
39(2) could not have been invoked against the Petitioners so as to disqualify
them for the period of not exceeding five years from the date of passing of the
order by the Respondent No.2.
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In so far as Section 39(1) is concerned, it can be invoked against
the member, Sarpanch or Upa-Sarpanch and the said persons can be removed
for the remainder of the period of their term if they are found guilty of the acts
and omissions mentioned in the said provision. A useful reference could be
made to the judgment of the Division Bench of this Court reported in 2005(2)
Mh.L.J. 1093 in the matter of Narayan Atmaram Borase v/s. State of
Maharashtra and others wherein it has been held that the only penalty that
can be imposed is the removal for the remaining period and the penalty cannot
traverse beyond the said period or term. Hence the said provision applies to a
sitting member of the Grampanchayat against whom the acts of omission or
commission are alleged. As indicated above, the term of the Petitioners has
come to an end on 27/11/2012 and the order has been passed by the
Respondent No.2 i.e. the Divisional Commissioner, Pune Division, Pune on
12/04/2013. Hence even under Section 39(1) of the said Act the Petitioners
could not have been proceeded with as their term had already come to an end
and in that sense the penalty which could have been imposed on the
Petitioners under Section 39(1) could not have been so imposed.
9 The learned counsel for the Petitioners would also submit that the
amount of Rs.4,90,000/- has been recovered from the Petitioners by dividing
the said amount amongst the 13 Petitioners. Hence according to him, the order
in so far as the said aspect is concerned, has been implemented.
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10 In my view, therefore, the impugned order dated 16/06/2015
passed by the Hon'ble Minister for Rural Development, Government of
Maharashtra i.e. the Appellate Authority in so far as it confirms the order dated
12/04/2013 passed by the Respondent No.2 herein imposing penalty under
Section 39(2) would have to be quashed and set aside and is accordingly
quashed and set aside. However the order in so far as the recovery of the
amount of Rs.4,90,000/- is concerned, the order is confirmed to the said
extent. The above Writ Petition is allowed to the aforesaid extent. Rule is
accordingly made absolute with parties to bear their respective costs of the
Petition.
[R.M.SAVANT, J]
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