Shamabi Gulab Pathan vs The State Of Maharashtra And ...
2021 Latest Caselaw 6576 Bom

                                                Writ Petition No.7825/2020
                                      :: 1 ::




           IN THE HIGH COURT OF JUDICATURE OF BOMBAY

                               BENCH AT AURANGABAD


                      WRIT PETITION NO.7825 OF 2020


 Shamabi Gulab Pathan
 Age 61 years, Occu. Sarpanch,
 R/o Nandrabad, Tq. Gangapur,
 District Aurangabad                            ... PETITIONER


          VERSUS


 1)       The State of Maharashtra
          Gramvikas Department
          (Copy to be served on
          Government Pleader, High Court of
          Judicature of Bombay,
          Bench at Aurangabad)

 2)       Additional Divisional Commissioner,
          Aurangabad

 3)       Suleman Gani Pathan,
          Age ___ years, Occu. Agri.,
          Tq. Gangapur, Dist. Aurangabad

 4)       Gramsevak,
          Grampanchayat, Nandrabad
          Tq. Gangapur, Dist. Aurangabad        ... RESPONDENTS


                                 .......
 Shri   Prashant S. Shinde, Advocate for petitioner
 Shri   Y.G. Gujarathi, A.G.P. for respondents No.1 and 2
 Shri   Saeed S. Shaikh, Advocate for respondent No.3
 Shri   Rahul Patil, Advocate for respondent No.4
                                  .......




::: Uploaded on - 21/04/2021                    ::: Downloaded on - 08/09/2021 02:23:43 :::
                                                  Writ Petition No.7825/2020
                                   :: 2 ::



                               CORAM :       R. G. AVACHAT, J.

                  Date of reserving judgment : 3rd February, 2021
                  Date of pronouncing judgment : 21st April, 2021



 JUDGMENT:

The challenge in this Writ Petition is to the order

passed by the Additional Commissioner, Aurangabad, dated

16/9/2020 in No.DB/DESK-2/ZPVP APPLICATION/CR/179/

2019 and confirmed by the Hon'ble Minister for State, Rural

Development, vide order dated 6/11/2020 in VPM-2020/PET.

NO.71/PANRA-6.

2. By the impugned order dated 16/9/2020, passed

under Section 39, the Additional Commissioner, Aurangabad

held the petitioner to be disqualified to hold the post for the

remaining period of the Village Panchayat [ under Section

39(1) of the Maharashtra Village Panchayats Act (for short,

the Act) ]. The Minister has confirmed the said order. The

petitioner is, therefore, before this Court.

3. The facts necessary to decide this petition are as

follows :-

The petitioner was elected as Sarpanch of village

Writ Petition No.7825/2020 :: 3 ::

Nandrabad, Taluka Gangapur, District Aurangabad on

8/10/2017. The respondent No.3 filed the complaint dated

26/2/2018, alleging misappropriation of funds in

implementation of Village Development Schemes. Pursuant to

the said complaint, the Block Development Officer (B.D.O.)

conducted enquiry and submitted report dated 8/3/2019 to

the Chief Executive Officer (C.E.O.), Zilla Parishad,

Aurangabad. The C.E.O., in turn, issued notice to the

petitioner and called for her explanation. The petitioner failed

to submit her explanation. The C.E.O., in turn, submitted his

report to the Additional Divisional Commissioner vide

communication dated 6/3/2020, soliciting action under

Section 39(1) of the Act. The Additional Commissioner issued

the notice to the petitioner, calling upon her to file her

response. The respondent No.3 had also been issued with the

notice of the said proceedings. The Additional Commissioner

found that a sum of Rs.2,40,893/- had not been properly

utilized for solid and liquid waste management project. The

responsibility was placed on the petitioner and the Gramsevak

- Shri P.H. Khandagale. Since the petitioner was held guilty

of the misconduct in the discharge of her duties, she came to

be held disqualified to hold the post for the remaining period.

4. Shri Prashant S. Shinde, learned counsel for the

Writ Petition No.7825/2020 :: 4 ::

petitioner would submit that the project of solid and liquid

waste management was implemented in the village before the

petitioner came to be elected as a Sarpanch of the village.

During the tenure of the petitioner, only a sum of Rs.99,863/-

had been disbursed to the contractor under three different

cheques as the said amount was released by B.D.O. to the

Grampanchayat for the very purpose. As such, the

observations in both the orders impugned in this petition are

inconsistent with the facts. The respondent No.3 and Ex-

Sarpanch have filed various false complaints against the

petitioner. The learned counsel, therefore, urged for setting

aside the impugned orders.

5. Learned A.G.P. supported the impugned orders.

Shri Saeed S. Shaikh, and Shri Rahul Patil, learned counsel

appearing for respondents No.3 and 4 respectively would, on

the other hand, submit that the petitioner has been guilty of

misconduct. She did not file her response during the enquiry

conducted by the C.E.O. The petitioner, during her tenure as

Sarpanch, indulged in misappropriation of public funds. The

petitioner has shown Chawadi of the village as waste

management plan. The same is evident from the Form No.8.

The entries in the Measurement Book have been taken during

the tenure of the petitioner. It is the petitioner who issued

Writ Petition No.7825/2020 :: 5 ::

the certificate in respect of the waste management plan and

obtained funds from the concerned authority. The villagers

had also made number of complaints against the petitioner in

respect of illegal construction and encroachments. Three of

the members of the Village Panchayat resigned from their

post due to illegal activities of the petitioner - Sarpanch. The

B.D.O. conducted a detailed enquiry and submitted the report.

The C.E.O. conducted hearing in the matter and thereafter

submitted his report. According to learned counsel, the

Additional Commissioner rightly disqualified the petitioner to

hold the post of Sarpanch. The Minister concerned was

justified in upholding the said decision. According to the

learned counsel, no interference is called for with the

impugned orders.

6. Section 39 of the Maharashtra Village Panchayats

Act reads thus :--

39. Removal from office :-

(1) The Commissioner may,--

(i) remove from office any member or any Sarpanch or Upa-Sarpanch who has been guilty of misconduct in the discharge of his duties, or of any disgraceful conduct, or of neglect of or incapacity to perform his duty, or is persistently remiss in the discharge thereof. A Sarpanch or an Upa-Sarpanch so removed may at the discretion

Writ Petition No.7825/2020 :: 6 ::

of the Commissioner also be removed from the panchayat; or

(ii) .........

Provided that, no such person shall be removed from office unless, in case of clause (i), the Chief Executive Officer or in case of clause (ii), the Deputy Chief Executive Officer as directed by the Chief Executive Officer; under the orders of the Commissioner, holds an inquiry after giving due notice to the Panchayat and the person concerned; and the person concerned has been given a reasonable opportunity of being heard and thereafter the Chief Executive Officer or, as the case may be, the Deputy Chief Executive Officer concerned, though the Chief Executive Officer, submits his report to the Commissioner. The inquiry officer shall submit his report within a period of one month;

Provided further that, the Commissioner shall, after giving the person concerned a reasonable opportunity of being heard, take a decision on the report submitted by the Chief Executive Officer or, as the case may be, the Deputy Chief Executive Officer, within a period of one month from the date of receipt thereof.;

(1A) Where a person is removed from office of the Sarpanch or Upa-Sarpanch, he shall not be eligible for re-election as Sarpanch or Upa- Sarpanch during the remainder of the term of office of members of the panchayat.

(2) ..........

(3) Any person aggrieved by an order of the Commissioner under sub-section (1) or (2) may, within a period of fifteen days from the date of the receipt of such order, appeal to the State Government and the Government shall decide the appeal within a period of one month from the date of receipt thereof.

Writ Petition No.7825/2020 :: 7 ::

7. Admittedly, the petitioner was elected as Sarpanch

of the Village Nandrabad on 8/10/2017. The respondent No.3

had made a complaint against the petitioner. The complaint

was enquired into by the B.D.O. The B.D.O. submitted his

report dated 8/3/2019. The gist of the report dated 8/3/2019

is reproduced below in verbatim :-

5½ ?kudpjk O;oLFkkiulkBh >kysyk [kpkZpk fofu;ksx ;ksX; tkxsoj u >kY;keqGs lnjph jDde :[email protected]& ljiap o xzkelsod Jh- [kaMkxGs ;akpsdMwu olqyhlkBh izLrkfor dj.;kr ;sr vkgs-

8. The C.E.O. then submitted his report dated

10/3/2020 to the Divisional Commissioner, reiterating the

observations made by the B.D.O. in his report dated

8/3/2019. The Additional Commissioner, after hearing the

petitioner and the respondent No.3, found that a sum of

Rs.2,40,863/- was paid to the contractor during the tenure of

the petitioner and the Gramsevak - Shri P.H. Khandagale.

Admittedly, the petitioner is no way concerned with the first

four observations made by the B.D.O. in his report dated

8/3/2019. The report of the C.E.O. dated 6/3/2020 indicts

the petitioner with the following observations :-

Writ Petition No.7825/2020 :: 8 ::

xzkeiapk;re/khy ?kudpjk O;oLFkkiukps dke lkS- }kjdkckbZ iaMq pkis] ljiap o Jherh ;q- ,- FkksVs xzkelsfodk ;akP;k dk;ZdkGkr lu 2012 rs 2015 ;k dkGkr dke eatqj vlwu Jh- ethn djhe iBk.k ljiap o xzkelsod Jh- fOg- ds-ltu rlsp] e;r xzkelsod Jh- Vh-,p-[kaMkxGs ;akP;k dk;ZdkGkr dke iw.kZ >kysys vlwu] fnuakd [email protected]@2016 jksthps dke iw.kZRokps izek.ki= vlY;kps vk<Gwu vkys- Jherh 'kekch xqykc iBk.k] ljiap o Jh- Vh-,p-[kaMkxGs e;r xzkelsod ;akP;k dk;ZdkGkr eqY;akdukuqlkj :- [email protected]& ps ns;d fnY;kps fnlwu ;srs- HkakMoyh eqY;koj uanzkckn dnhe 'kgkiqj] rk- xaxkiqj ;sFkhy Qsjuksan.kh egkjk"Vª xzkeiapk;r dj o Qh fu;e 1960 e/;s lq/kkj.kk dsY;kizek.ks HkakMoyh eqY;koj vk/kkfjr dj vkdkj.kh dj.;kckcr vf/klqpuk fn- 31 fMlsacj] 2015 Qsjvkdkj.kh d:u uequk uacj 8 rRdkyhu xzkelsod Jh- Vh-,p-[kaMkxGs e;r o ljiap Jh eftn djhe iBk.k ;akP;k dk;ZdkGkr Qsjvkdkj.kh vktikosrks dsysyh ukgh-

9. The record indicates that, the petitioner has been

held guilty of misconduct in respect of release of funds of

Rs.2,40,893/- in favour of the contractor towards

implementation of the scheme of solid and liquid waste

management. The submissions made by the learned

respective counsel for respondents No.3 and 4 as regards

other alleged illegalities by the petitioner, therefore, cannot be

a subject of this Writ Petition.

10. It is true that the petitioner had appeared before

the C.E.O. She, however, did not file her response in writing.

It was, however, her contention before the authorities below

Writ Petition No.7825/2020 :: 9 ::

that, solid and liquid waste management scheme was

implemented during the tenure of her predecessor in office.

Most of the amount had been disbursed by her predecessor in

office. Only a sum of Rs.99,863/- was disbursed under three

different cheques during her tenure, that too after the amount

was released from the B.D.O. for the said purpose. In support

of her contentions, the petitioner has produced on record

certain documents in the nature of completion certificate in

respect of solid and liquid waste management work and

extract of Bank Account, indicating the payment of

Rs.99,863/-.

11. From the material on record, it does appear that

the work of solid and liquid waste management project had

been completed during the tenure of the predecessor in office

of the petitioner. Most of the payment had been released in

favour of the contractor before the petitioner came to be

elected as Sarpanch of the village. A sum of Rs.99,863/-

came to be disbursed during her tenure. The said amount

was made available for disbursement when the B.D.O.

released the funds in that regard. As such, the observations

in the impugned orders that, the amount of Rs.2,40,893/-

was released during the tenure of the petitioner and the

Gramsevak, appear to be inconsistent with the facts and

Writ Petition No.7825/2020 :: 10 ::

circumstances of the case. It is, therefore, desirable to hold a

fresh enquiry in this regard. Interference is, therefore,

warranted with the impugned order.

12. The Writ Petition, therefore, succeeds in terms of

the following order :

13. The Writ Petition is allowed in terms of prayer

clause (B). The matter is remanded back to the Additional

Commissioner, Aurangabad with a direction to decide it afresh

after giving the parties thereto a reasonable opportunity of

hearing.

14. The Additional Commissioner shall decide the

matter within a period of two months from the date of receipt

of a copy of this order. The parties shall appear before the

Additional Commissioner on 10th May 2021.

( R. G. AVACHAT ) JUDGE

fmp/-