Bombay High Court
Kavita Prashant Magar vs The Additional Commissioner ... on 14 September, 2016
Bench: T.V. Nalawade
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.9494/2016
Kavita W/o Prashant Magar,
Age:22 Years, Occ.Household,
R/o Takali (P.D.), Tq.Chalisgaon,
Dist.Jalgaon.
...Petitioner..
Versus
1) The Additional Commissioner, Nasik
Division, Nasik.
2) The Additional Collector, Jalgaon,
Dist.Jalgaon.
3) The Gram Panchayat,Takali (P.D.),
Tq.Chalisgaon,Through its Gram Sevak.
4) Sanjay S/o Parshuram Pawar,
Age: 45 years, Occ.Agri.R/o Takali
(P.D.),Tq.Chalisgaon,Dist.Jalgaon.
...Respondents...
.....
Shri R.N. Dhorde, Senior Advocate i/b Shri V.R. Dhorde,
Advocate for petitioner.
Shri S.K. Tambe, AGP for respondent nos.1 & 2.
Shri V.D. Hon, Senior Advocate i/b Shri A.V. Hon,
Advocate for respondent no.4.
.....
CORAM: T.V. NALAWADE, J.
DATE: 14.09.2016
ORAL JUDGMENT :
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1] The petition is filed to challenge the orders
made by the learned Additional Collector and the
appellate authority - learned Additional Commissioner, in
a proceeding started for disqualification u/s 14(1)(g) of
the Maharashtra Village Panchayat Act, 1958.
2] Both the sides are heard.
3] The petitioner was Sarpanch of village
panchayat, Takali (P.D.). The respondent no.4, who
started the proceeding, is also a member of the said
village panchayat. He informed to the authority that the
Sarpanch had incurred disqualification as some work of
village panchayat was allotted to the family of Sarpanch
headed by her father in law and from the work, the family
was benefited.
4] After receipt of the application of the
respondent no.4, office of the Collector gave direction
to the Chief Officer to make enquiry into the matter and
give the report. Enquiry was made and report was given
that by way of cheque, amount of Rs.5,000/- was collected
by father in law of the present petitioner - Sarpanch and
the amount of Rs.44,000/- was paid to driver of the
father in law of the petitioner. Notice was then issued
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to the present petitioner and opportunity was given to
her to have her say.
5] The petitioner filed her say and denied the
allegations. She denied that the amount of Rs.5,000/-
was collected by her father in law. She contended that
as per the resolution of village panchayat, advertisement
of the village panchayat was published in Dipawali
magazine by name 'Vrukshamitra' and for that, charges
were paid. She contended that as the owner / publisher
of the said magazine was not in a position to come to the
village panchayat. The amount was collected by her
father in law and it was paid to the owner of the said
magazine. She contended that the funeral place of the
village was not in order and stray dogs had created
problems at that place and there were cases of dog bites
and complaints of 35 to 40 persons were received that
they suffered due to dog bites at the funeral place. She
contended that one lady Sakwarbai Panditrao Magar had
died due to dog bite and so for cleaning the place,
urgent action was necessary and so the work was given to
one Bharat Madhukar Khairnar and the work was done and
sand mixed with clay was also spread there and for that,
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the payment of Rs.44,000/- was made to said Khairnar.
She contended that Gram Sabha had approved this work,
though subsequently.
6] It appears that during enquiry, the statement of
aforesaid Khairnar was recorded and some record was
produced to show that the amount of Rs.5,000/- was
reached to the owner of aforesaid magazine. The
petitioner took one more defence that she was living
separate from her father-in-law and some record was
produced like ration card created on 22.2.2016 subsequent
to the aforesaid incidents.
7] After considering all this record, the learned
Additional Collector held that the Sarpanch had incurred
disqualification due to aforesaid transactions. The
findings are confirmed by the learned Additional
Commissioner in appeal filed u/s 16(2) of the Maharashtra
Village Panchayat Act, 1958.
8] The learned Senior Counsel for the petitioner
submitted that if the resolution of Gram Sabha was passed
subsequent in time and the amount was paid to Khairnar
prior to the approval of Gram Sabha, that can be only
irregularity and the said circumstance cannot fall under
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the provisions of Section 14(1)(g) of the Act. He
submitted that in similar way, issuing of the cheque in
the name of father in law of the Sarpanch can be called
as an irregularity and so error is committed by both the
authorities in holding that the Sarpanch incurred
disqualification under the aforesaid provision. It
appears that one more defence was taken by village
Sarpanch viz. She has not signed on the cheque as the
Enquiry Officer had noted that there was some difference
in the signature of village panchayat appearing on other
record and appearing on the cheque of Rs.5,000/- issued
to father in law of the petitioner.
9] The submissions made and the record show that
the Sarpanch is not disputing that the cheque of
Rs.5,000/- was issued to father in law of the Sarpanch
and he did encash the cheque. There is not only the
record of cheque, but there is also receipt on the
voucher of the father in law of Sarpanch. The resolution
of village panchayat shows that the advertisement was to
be given in Lokmat magazine, but the advertisement was
given to other magazine. There is no explanation with
the Sarpanch on the circumstance. Further, the
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explanation given by Sarpanch that the owner was not in a
position to come to village panchayat is not acceptable.
The cheque could have been issued in the name of owner of
magazine and it could have been reached to his office.
The issuance of cheque in the name of father in law of
Sarpanch is itself a circumstance showing that the father
in law, the family of Sarpanch had interest in the
transaction. Inferences are easy when there are such
circumstances that the persons who give advertisement are
getting commission. The circumstance that the Sarpanch
tried to defend this ground by contending that she had
not signed on the cheque, can be used against her. This
circumstance creates a probability that her father in
law, who is also her God father, was controlling the
things and he was doing the things for his own benefit
and for making gain by using the post held by his
daughter in law.
10] In respect of the second circumstance that the
amount of Rs.44,000/- was paid even when there was no
resolution and the amount was paid to driver of father in
law, there was record of enquiry made by the officers of
Zilla Parishad. They had come to the conclusion that the
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said person was working with father in law. Admittedly,
without getting approval of Gram Sabha, the amount was
first paid. Further, no procedure was followed for
allotment of work and there is no record to show that
some procedure was followed to give work of cleaning of
the funeral place to aforesaid person. There is one more
circumstance like in the resolution made by Gram Sabha,
the surname of the said person is shown as Choudhary when
the record of payment is in favour of Khairnar. That
circumstance need not be discussed in detail as the name
of the person and name of the father are same and the
possibility of mistake committed in mentioning surname in
the resolution can be taken into consideration.
11] In respect of the work of cleaning of the
funeral place, there are many other things showing that
the persons who give the work to Khairnar are necessarily
benefited. There is a report of Sub Divisional Engineer
of Zilla Parishad, Chalisgaon, showing that the value of
the work involved, the use of sand mixed with earth and
the quantity was 20 to 22 brass. On the basis of
Government rate of one brass, such certificate was given.
The record shows that the mineral sand mixed with earth
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was not purchased and no royalty was paid in respect of
the said mineral. By the side of funeral place, there is
river bed and the sand mixed with earth was just shifted
from river bed and was spread at the funeral place.
Thus, only labour charges were to be paid, but the value
of the material was also paid when the Government mineral
was used. From these circumstances also, inference is
possible that the persons like Sarpanch and her father in
law are benefited due to this transaction. Not much can
be made out due to circumstance that subsequently Gram
Sabha approved this work. When admittedly, her father in
law is controlling the things and they are in power, the
Gram Sabha is bound to take such a decision.
12] In the present proceeding alongwith the
affidavit some record is produced to show that there was
urgency for getting the aforesaid work executed and there
were news items in daily newspapers about the incidents
of dog bites. That record cannot make any difference in
favour of Sarpanch.
13] The provisions of Section 13(1)(g) r/w Section
16 show that when there are such grounds, the authority
is expected to take decision after giving reasonable
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opportunity to the person concerned. The orders made are
reasoned orders though the learned Additional Collector
has not considered the second circumstance like spending
of the amount of Rs.44,000/- in detail. There are
concurrent findings. Whenever such instances are there,
strict view needs to be taken and the matter cannot be
left to other authority by holding that it is simply
irregularity and action can be taken for
misappropriation. If such approach is adopted, it will
be defeating the very purpose of the grounds mentioned in
Section 14 of the Act. Thus, there are no merits in the
present proceedings.
14] Learned Senior Counsel for the petitioner
referred Sou.Jyotitai Vikas Gawande v. Additional
Commissioner, Amravati Division & others reported at 2009
(4) ALL MR 851 and produced copy of order made in Writ
Petition No.691/2011 decided on 8.3.2011 by Aurangabad
Bench of Bombay High Court. On the other hand, learned
Senior Counsel for the respondent no.4 placed reliance on
Ashabai Laxman Gawande v. Additional Commissioner,
Amravati Division & others reported at 2005 (4) Bom.C.R.
335. The case on which reliance is placed by the
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respondent no.4 is referred by the authorities below.
The facts and circumstances of each and every case are
always different and in such cases, the case law cannot
help the Court much.
15] In the result, the petition stands dismissed.
The learned Senior Counsel for the petitioner requested
for continuation of interim relief for some period. In
view of peculiar circumstances, this Court holds that the
relief cannot be continued and so it is refused.
(T.V. NALAWADE, J.)
ndk/c1491647.doc
