Sau. Aparna W/O Sanjay Barabde vs Divisional Commissioner, ...
2021 Latest Caselaw 8253 Bom

                                                                Judgment W. P. 3192.2020.odt




           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH AT NAGPUR
                 WRIT PETITION NO. 3192 OF 2020

Sau. Aparna w/o Sanjay Barabde
Aged about 40 years, occupation :
                                                           Petitioner
agriculturist, r/o Chincholi Khurd,
Taq.Anjangaon Surji, Dist. Amravati

                      Versus
1) Divisional Commissioner,
  Amravati Division Amravati.

2) Arun Tulsiram Mankar, aged - adult

3) Shrihari Ramdas Kakad, aged - adult
                                                          Respondent
4) Smt. Rajkanya Ramdas Kakad,
   2-3, occupation agriculturist,
  r/o.Chincholi Khurd, Taq. Anjangaon
  Surji, Dist. Amravati

5) Secretary, Gram Panchayat
  Chincholi Khurd,Taq.AnjangaonSurji,
  Dist. Amravati

Mr. J. B. Kasat, Advocate for petitioner.
Mr. K. L. Dharmadhikari, AGP for respondent No.1.
Mr. S. I. Gatte, Advocate for respondent Nos.2, 3 and 4.

                                       CORAM :   MANISH PITALE, J.

DATED : 22nd June, 2021

ORAL JUDGMENT

Hearing was conducted through Video Conferencing and

the learned counsel agreed that the audio and visual quality was proper.

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                                                                  Judgment W. P. 3192.2020.odt




(2)                        Rule. Rule made returnable forthwith. The Writ Petition

is heard finally with the consent of learned counsel for the rival parties.

(3) The petitioner herein is a directly elected Sarpanch of

Gram Panchayat Chincholi Khurd, Taq. AnjangaonSurji, Dist. Amravati. She

was elected on 16/10/2017 and since then she has been holding the said

elected post.

(4) The respondent Nos.2 to 4 had approached the

respondent No.1 Divisional Commissioner under Section 39 of the

Maharashtra Village Panchayats Act, 1959, for removal of the petitioner from

the post of Sarpanch claiming that she had indulged in misconduct in as much

as she was responsible for construction of a wall around a temple which had

resulted in blocking a particular road.

(5) The respondent No.1 Divisional Commissioner called for

a report from Chief Executive Officer (CEO) of Zilla Parishad in terms of first

proviso to Section 39(1) of the aforesaid Act. It appears that report dated

31/03/2020, was prepared by the CEO of the Zilla Parishad and it was

submitted before the respondent No.1 Divisional Commissioner on

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01/06/2020.

(6) At this stage, the petitioner filed an application praying

for calling the record of the inquiry undertaken by the CEO for inspection.

She also filed an application for quashing the said report and for a direction to

be given by the respondent No.1 Divisional Commissioner for fresh inquiry

by the Chief Executive Officer. In these applications, the petitioner alleged

that the report submitted by the CEO and the conclusions rendered therein

adverse to the interest of the petitioner were contradictory to the material that

had come on record and that it was also contrary to the reports given by the

Block Development Officer to the CEO.

(7) By the impugned order 15/09/2020, the respondent No.1

Divisional Commissioner in a very cryptic manner, simply recorded that

applications have been filed by the petitioner and that the same were being

rejected. It was also recorded that inquiry report had been submitted by the

CEO. Thereafter, it was recorded that the arguments were completed and the

matter was closed for orders.

(8) Mr. Kasat, learned counsel for the petitioner, submits that

the power exercised by the respondent No.1 Divisional Commissioner under

Section 39 of the aforesaid Act, has the drastic consequence of removing an

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elected person like the petitioner who has been directly elected as Sarpanch of

the Gram Panchayat. It is submitted that the first and second proviso to

Section 39 of the said Act are mandatory in nature, encapsulating the concept

of principles of natural justice to be followed by the respondent No.1

Divisional Commissioner before passing any order in the matter. It is

submitted that unless the procedure contemplated under the aforesaid

provision is followed to the hilt, it could not be ensured that a proper reasoned

order is passed by the respondent No.1 Divisional Commissioner.

(9) By inviting attention to the manner in which the

impugned order was passed on 15/09/2020, respondent No.1 Divisional

Commissioner, it was submitted by the learned counsel for the petitioner that

the principles of natural justice were violated and there was a clear violation of

second proviso to Section 39(1) of the aforesaid Act. On this basis it was

submitted that the impugned order deserved to be set aside and that a

direction ought to be given to the respondent No.1 Divisional Commissioner

to consider the aforesaid two applications filed by the petitioner afresh and to

pass a reasoned order. It was submitted that the respondent No.1 Divisional

Commissioner would have to follow the mandate of the second proviso to

Section 39(1) of the said Act by giving reasonable opportunity of being heard

to the petitioner before taking any decision on the report submitted by the

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Judgment W. P. 3192.2020.odt

CEO.

(10) On the other hand, Mr. Gatte, learned counsel appearing

for respondent Nos.2 to 4 submitted that the petitioner had adopted delaying

tactics before the respondent No.1 Divisional Commissioner by filing the

aforesaid applications. It was submitted that a perusal of the Roznama did

indicate brief reasons for rejecting the applications of the petitioner and that

the parties had been heard when the matter was closed for orders. On this

basis, it was submitted that the mandate of Section 39(1) of the said Act was

followed and that the present writ petition deserved to be dismissed.

(11) Mr.K.L.Dharmadhikari, learned AGP appeared on behalf

of respondent No.1 and submitted that the matter could be remanded to the

respondent No.1 Divisional Commissioner for proper hearing in the interest

of justice.

(12) Having heard the learned counsel for the rival parties, it

is necessary to look at the scheme contemplated under Section 39 of the

said Act. The aforesaid provision reads as follows :-

"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

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duty, or is persistently remiss in the discharge thereof. A Sarpanch or an Upa-Sarpanch so removed may at the discretion of the Commissioner also be removed from the panchayat', or

(ii) remove from office the member, Sarpanch or, as the case may be Upa-Sarpanch, if not less than twenty per cent, of the total number of voters in the village who have paid all dues of the panchayat regarding taxes on buildings and lands and water charges, make a complaint that the annual accounts and the report of the expenditure incurred by the panchayat on the development activities are not placed before the Gram sabha; and the information thereof is not displayed on the notice board as required by sub-section (1) or (1A) of section 8:

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, through 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) The Commissioner may subject to like condition disqualify for a period of not exceeding [six years], any person who has resigned his office as a member, Sarpanch or Upa-Sarpanch and has been guilty of the acts and omissions specified in sub-section (1). (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.]"

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(13)                       There can be no doubt about the fact that when the

respondent No.1 Divisional Commissioner exercises his power under the

above quoted provision, it has the potential of removing a person from an

elected post, in this case the post of directly elected Sarpanch. Since the

consequences are drastic it is obvious that the procedure contemplated

under the above quoted provision needs to be followed scrupulously. The

first and second provisos to Section 39(1) of the said Act incorporate

principles of natural justice, inasmuch as a report is called from a

responsible Officer i.e. CEO on the allegations made against the elected

person and the said person is to be granted a reasonable opportunity of

being heard before taking a decision on the report submitted by the CEO.

(14) In view of the aforesaid procedure contemplated under

Section 39(1) of the said Act, in the present case, the respondent No.1

Divisional Commissioner was expected to give a proper opportunity of

hearing to the petitioner on the report submitted by the CEO. Since the

petitioner claimed that the report of the CEO deserved to be set aside and

fresh inquiry was necessary as there were allegedly contradictory reports of

the Block Development Officer and that the conclusion of the report of the

CEO appeared to be contrary to the record, it was all the more necessary for

respondent No.1 Divisional Commissioner to have properly considered the

two applications filed on behalf of the petitioner. As noted above, the

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applications were for calling for the record of the CEO pertaining to the

aforesaid report and for directing a fresh inquiry to be conducted by the

CEO. These applications ought to have been considered and proper

reasoned orders ought to have been passed by the Commissioner. This is

expected in terms of the procedure prescribed under the above quoted

provision of law. Apart from this, the second proviso to Section 39(1) of the

said Act specifically requires that a reasonable opportunity of being heard is

given to the petitioner before taking a decision on the report of the CEO.

This would include proper consideration and disposal of the aforesaid two

applications filed on behalf of the petitioner.

(15) A perusal of the impugned order shows that it is cryptic

and there is no reasoning given by the respondent No.1 Divisional

Commissioner, while simply rejecting the applications filed by the petitioner.

It is evident from the record that the applications were rejected on the very

day on which they were filed and it was recorded that arguments were

completed and the matter was closed for orders. The approach adopted by

the respondent No.1 Divisional Commissioner as manifested in the

impugned order, is not in consonance with the procedure contemplated

under Section 39(1) of the aforesaid Act.

(16)                       In view of the above, the impugned order is


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                                                                   Judgment W. P. 3192.2020.odt

unsustainable and the present writ petition deserves to be partly allowed.

(17) Accordingly, the writ petition is partly allowed. The

impugned order is quashed and set aside. The respondent No.1 Divisional

Commissioner is directed to consider the two applications filed by the

petitioner i.e. one application for calling for the record of the CEO

pertaining to the report submitted by the said Officer and the other

application for calling a fresh report from the CEO, by granting proper

opportunity of hearing to the petitioner, as well as the respondent

Nos.2 to 4. The respondent No.1 Divisional Commissioner will also grant

proper opportunity to the rival parties to make submissions on the report

already submitted by the CEO in terms of second proviso to Section 39(1) of

the aforesaid Act. Thereupon, the respondent No.1 Divisional Commissioner

is expected to pass reasoned orders in the matter.

(18) The respondent No.1 Divisional Commissioner is

expected to complete the hearing and pass appropriate orders in the matter

as expeditiously as possible.

(19) Rule is made absolute in above terms. No order as to

costs.

                                                         [ MANISH PITALE J. ]

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