Virendrasing Indrasing Girase vs The Additional Commissioner And ...
2021 Latest Caselaw 15935 Bom

                                                                             929.WP.12526.21.odt


                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT AURANGABAD

                            WRIT PETITION NO.12526 OF 2021

         Shri Virendrasing S/o Indrasing Girase,
         Age : 53 years, Occu: Agriculture and Social Work,
         R/o. Chimthane, Tq. Shindhkheda,
         District Dhule.                                    ... PETITIONER

         VERSUS

1.       The Additional Commissioner,
         Nashik Division, Nashik
2.       The Chief Executive Officer,
         Zilla Parishad, Dhule, District Dhule.
3.       Shri Bharat S/o Parsing Rajput,
         Age : 35 years, Occu: Private Service,
         R/o. Chimthane, Tq. Shindhkheda, Dist. Dhule.              ... RESPONDENTS

                                     ...
Advocate for Petitioner : Mr. V.D. Hon, Senior advocate i/b. Mr. A.B. Girase
               AGP for Respondents/State : Mrs. D.S. Jape
               Advocate for respondent No.3 : Mr. S.P. Shah
                                     ...

                                    CORAM          :   MANGESH S. PATIL, J.


                                    DATE           : 17.11.2021

JUDGMENT :

Heard. Rule. The Rule is made returnable forthwith. The

learned AGP waives service for the respondent Nos.1, the learned advocate

Mr. Shah waives service for respondent No.3, who is the contesting

respondent. At the joint request of the parties, the matter is heard finally at

the stage of admission.

2. The petitioner who is an elected member of the Zilla Parishad is

assailing the judgment and order passed by the respondent No.1 Additional

929.WP.12526.21.odt

Divisional Commissioner, disqualifying him under the provisions of Section

16(1)(i) read with Section 40 of the Maharashtra Zilla Parishad and

Panchayat Samitis Act, 1961 (herein after the ZP Act) on the ground of

conflict of interest. The respondent No.3 who is a person who was defeated

at the election made a complaint on the ground that the petitioner was

residing jointly with his son and the latter could procure a contract for

improvement of a road from village Aarave to Aarave Phata which was in

contravention of the provision of Section 16(1)(i).

3. The learned Senior advocate Mr. Hon for the petitioner would

begin with the argument that the petitioner is elected as a member of a Zilla

Parishad under the ZP Act, whereas, the work that was allotted to his son

was being carried out at the behest of a Gram Panchayat which is regulated

by the provision of the Maharashtra Village Panchayats Act, 1959 (herein

after VP Act). He would submit that both these entities are different albeit

both these enactments contain a similar provision as far as carrying out of

construction, maintenance and repair of public roads, drains, bunds and

bridges are concerned.

4. Mr. Hon takes me through the papers and points out that

although it was a work which was to be undertaken under the supervision of

the Zilla Parishad, it was essentially a work that was to be undertaken for

and on behalf of the Gram Panchayat. He would therefore submit that in

order to attract the provision of Section 16(1)(i) of ZP Act it was necessary

that the work should have been undertaken by the Zilla Parishad itself.

929.WP.12526.21.odt

Therefore, there was no conflict of interest in the strict sense. He had no

direct or indirect interest in the work done by his son.

5. Mr. Hon would then submit that the petitioner's son is not

dependent on him and has his own occupation. Even both of them do not

reside together and do not carry on any business jointly. If he has secured

the contract while pursuing his own occupation that should not be made to

attract any liability to the petitioner.

6. Mr. Hon would submit that the impugned order has been passed

without adhering to the principles of natural justice. No appropriate

opportunity of being heard was extended to the petitioner. Though the

respondent No.3 was allowed to change his lawyer, no such indulgence was

shown to the petitioner and it has deprived him of his valuable right.

7. Lastly, Mr. Hon submits that the petitioner is elected as a

people's representative and ought not to have been non seated without strict

proof of the ground attracting disqualification.

8. Per contra, learned advocate Mr. Shah for the respondent No.3

would also take me through the papers to point out as to how the work that

was allotted to the petitioner's son was undertaken pursuant to an order of

the Zilla Parishad. He would submit that since it is a matter touching the

conflict of interest of a publicly elected member of a Zilla Parishad and his

duties, a broader interpretation needs to be put to the wording of Section

16(1)(i) of the ZP Act. Though it was a work which was ultimately to be

carried out by the Gram Panchayat concerned, it could not have been done

929.WP.12526.21.odt

without the intervention of the Zilla Parishad and without its approval. He

would therefore submit that there was a direct conflict of interest in

petitioner continuing as a member of the Zilla Parishad which had accorded

approval and had sanctioned the work which was ultimately allotted to his

son. The learned advocate would place reliance on the following decisions

of this Court:

i) Raut Sudhakar Dhondiram Vs. The Divisional Commissioner and Ors.; 2016 SCC OnLine Bom 11631

ii) Arshiyabegum Shaikh Rabib Vs. The State of Maharashtra and Ors.: Writ Petition No.7298 of 2019 dated 26.06.2019

9. I have carefully considered the rival submissions and perused

the papers. In order to appropriate the controversy it would be apposite to

read the relevant provision which attracts the disqualification:

"Section 16. (1) Subject to the provisions of sub-section (2), a person shall be disqualified for being chosen as, and for being, a Councilor -

(a)....

(b)...

(c)...

(i) if he has directly or indirectly by himself or by his partner any share or interest in any work done by order of the Zilla Parishad or in any contract with, by or on behalf of, Zilla Parishad"

As can be appreciated, a councillor is liable to be disqualified if

he has directly or indirectly, by himself or his partner any share or interest in

a work done by order of Zilla Parishad or in any contract with, by or on

behalf of Zilla Parishad, is liable to be disqualified. As the wording suggests,

it is not only that he should have an interest in any work 'of' the Zilla

Parishad but even he should not have an interest in a work done 'by the

929.WP.12526.21.odt

order' of the Zilla Parishad. The prerequisite is that the work should have

been done by the order of Zilla Parishad. Conspicuously, the provision does

not require that any such work to be done by the order of Zilla Parishad

should be at its expense or otherwise. In other words, this provision does

not require that the funds for the work done should be of Zilla Parishad. It

is enough to attract the provision that the work is done by the order of the

Zilla Parishad. Such an interpretation, which can be easily discerned from

the plain reading of the provision would be decisive.

10. The material facts are not in dispute. The respondent No.2 Zilla

Parishad, Dhule by the work order dated 09.06.2020 (Exhibit-D) specifically

directed Gram Panchayat to undertake the work under the supervision of the

Deputy Engineer of the Zilla Parishad. Even the communication addressed

by the respondent No.2 Zilla Parishad to the Divisional Commissioner dated

03.03.2021 (Exhibit-I) mentions that the work that was allotted to the

petitioner's son was undertaken pursuant to the order of the Zilla Parishad

dated 09.06.2020 and that it was preceded by the building permission

accorded by the concerned committee of the Zilla Parishad dated

02.03.2020. Again, the communication addressed to the petitioner by the

concerned Executing Engineer of the Zilla Parishad, dated 28.10.2021 (page

62) reads that pursuant to his query he was informed that the road in

question was approved and was being developed pursuant to the order of

the Zilla Parishad that was being undertaken as per the proposal forwarded

by the District Planning Committee from the Office of the Collector, Dhule

929.WP.12526.21.odt

and that the Zilla Parishad, Dhule was the implementing and controlling

agency who had disbursed the funds under a specific head. If such was the

state of affairs, I do not find any hesitation in concluding that irrespective of

the fact that it was the Gram Panchayat which was, in a sense, the user

department, the work that was allotted to the petitioner's son was being

carried out pursuant to an order of the Zilla Parishad within the meaning of

Section 16(1)(i) of the ZP Act.

11. So far as the dispute as to if the petitioner and his son are

residing together or otherwise, this Court cannot undertake any such

scrutiny of disputed facts. In the impugned order the Divisional

Commissioner by referring to the material on record has reached a plausible

conclusion. He has specifically referred to the ration cards and particularly

noticed absence of the ration card of the petitioner while drawing a

reasonable conclusion that there was no clinching material to demonstrate

that the father and son duo were residing separately. The view taken in the

impugned order that merely because a ration card of the grandmother of the

petitioner's son contains the son's name would not be sufficient to reach to a

conclusion that the petitioner and his son are separate, is a plausible view

and cannot be interfered with while exercising the writ jurisdiction.

12. The upshot of the above discussion leaves no manner of doubt

that it is a clear case of conflict of interest which invites a disqualification

under Section 16(1)(i) of the ZP Act.

13. This takes me to the second bone of contention regarding

929.WP.12526.21.odt

alleged failure to follow the principles of natural justice, an argument

advanced by Mr. Hon.

14. A perusal of copy of Roznama of the proceeding before the

respondent Divisional Commissioner would show that the matter was first

taken up on 05.02.2021. It was adjourned from time to time in the wake of

the pandemic. It was then listed on 09.07.2021. The petitioner was present

and sought time to file a written statement. The matter was then adjourned

to 23.07.2021. The advocate for the petitioner was present on that day and

again sought time to file reply. His request was accepted and the matter was

adjourned to 20.08.2021. On that day neither the petitioner nor his

advocate remained present and still by way of last indulgence, the matter

was adjourned to 03.09.2021. Even on that day the matter was simply

adjourned to 24.09.2021. On that day the petitioner filed his written

statement and the matter was adjourned to 08.10.2021 for arguments. The

arguments of the learned advocate for the respondent No.3 were heard on

that day. Though the petitioner was present in person he orally requested

for time on the ground that his advocate was ill. By directing that in spite of

opportunity the petitioner was not ready to make submissions and further

directing that his written statement would be treated as his argument, the

matter was closed for passing order. It is thereafter that on 20.10.2021 the

petitioner submitted an application and sought to be heard. His application

was rejected by a detailed order dated 01.11.2021 and the impugned

judgment was thereafter pronounced on 08.11.2021. Though an attempt

929.WP.12526.21.odt

was made by Mr. Hon to submit that this order on his application dated

20.10.2021 was passed on 01.11.2021 but was not communicated to the

petitioner, no such clear and specific pleading has been made in the petition.

In fact the petition contains a specific statement about passing of such order

and petitioner's knowledge about it.

15. Besides, as can be seen from the dates listed before the

Divisional Commissioner, at no point of time the matter was listed hurriedly

muchless to demonstrates that the decision was being taken with some

uncalled for or undesired haste. In fact, even in the absence of the

petitioner and his advocate, the matter was adjourned firstly to enable him

to file his reply and then to put up his arguments. Even after his application

seeking to be heard was rejected on 01.11.2021, the impugned order was

not passed immediately but was passed 7 days thereafter. If at all the

petitioner was having bona fides, he could have approached this Court no

sooner his application was rejected on 01.11.2021. He took chance and

waited for the impugned order to be passed. In the wake of such events, it

cannot be said that the impugned order has been passed in breach of

principles of natural justice.

16. Even otherwise, when all the facts as discussed herein above

were available before the concerned Divisional Commissioner and when

hearing the petitioner would have been clearly a mere formality and had no

consequence of changing the fate of the matter, the petitioner cannot be said

to have been put to any prejudice and cannot be allowed to put up the

929.WP.12526.21.odt

argument regarding failure of the principles of natural justice. Suffice for

the purpose to refer to the decision of the Supreme Court in the case of

Dharampal Satyapal Limited Vs. Deputy Commissioner of Central Excise,

Gauhati and Ors. ; (2015) 8 SCC 519. After taking on stock of various

decisions, following observations have been made in paragraph No.30 and

31:

30. But that is not the end of the matter. While the law on the principle of audi alteram partem has progressed in the manner mentioned above, at the same time, the Courts have also repeatedly remarked that the principles of natural justice are very flexible principles. They cannot be applied in any straight-jacket formula. It all depends upon the kind of functions performed and to the extent to which a person is likely to be affected. For this reason, certain exceptions to the aforesaid principles have been invoked under certain circumstances. For example, the Courts have held that it would be sufficient to allow a person to make a representation and oral hearing may not be necessary in all cases, though in some matters, depending upon the nature of the case, not only full-fledged oral hearing but even cross- examination of witnesses is treated as necessary concomitant of the principles of natural justice. Likewise, in service matters relating to major punishment by way of disciplinary action, the requirement is very strict and full-fledged opportunity is envisaged under the statutory rules as well. On the other hand, in those cases where there is an admission of charge, even when no such formal inquiry is held, the punishment based on such admission is upheld. It is for this reason, in certain circumstances, even post-decisional hearing is held to be permissible. Further, the Courts have held that under certain circumstances principles of natural justice may even be excluded by reason of diverse factors like time, place, the apprehended danger and so on.

31. We are not concerned with these aspects in the present case as the issue relates to giving of notice before taking action. While emphasizing that the principles of natural justice cannot be applied in straight-jacket formula, the aforesaid instances are given. We have highlighted the jurisprudential basis of adhering to the principles of natural justice which

929.WP.12526.21.odt

are grounded on the doctrine of procedural fairness, accuracy of outcome leading to general social goals, etc. Nevertheless, there may be situations wherein for some reason - perhaps because the evidence against the individual is thought to be utterly compelling - it is felt that a fair hearing 'would make no difference' - meaning that a hearing would not change the ultimate conclusion reached by the decision-maker - then no legal duty to supply a hearing arises. Such an approach was endorsed by Lord Wilberforce in Malloch v. Aberdeen Corporation (1971) 1 WLR 1578 at 1595, who said that a 'breach of procedure...cannot give (rise to) a remedy in the courts, unless behind it there is something of substance which has been lost by the failure. The court dos not act in vain'. Relying on these comments, Brandon LJ opined in Cinnamond v. British Airports Authority MANU/UKWA/0013/1980 : (1980) 1 WLR 582 at 593 that 'no one can complain of not being given an opportunity to make representations if such an opportunity would have availed him nothing'. In such situations, fair procedures appear to serve no purpose since 'right' result can be secured without according such treatment to the individual. In this behalf, we need to notice one other exception which has been carved out to the aforesaid principle by the Courts. Even if it is found by the Court that there is a violation of principles of natural justice, the Courts have held that it may not be necessary to strike down the action and refer the matter back to the authorities to take fresh decision after complying with the procedural requirement in those cases where non-grant of hearing has not caused any prejudice to the person against whom the action is taken. Therefore, every violation of a facet of natural justice may not lead to the conclusion that order passed is always null and void. The validity of the order has to be decided on the touchstone of 'prejudice'. The ultimate test is always the same, viz., the test of prejudice or the test of fair hearing."

17. Though the matter before the Supreme Court pertains to a case

concerning recovery orders issued under the Excise Act, the principle would

certainly govern the fact situation of the matter in hand. To repeat, there

was least possibility of any change in the decision even if the petitioner

would have been given any opportunity of being heard, when all the

929.WP.12526.21.odt

aforementioned facts and circumstances unerringly indicated the clear

conflict of interest inviting the disqualification under Section 16(1)(i) of the

ZP Act.

18. The impugned order by no stretch of imagination can be said to

be either perverse or arbitrary.

19. The Writ Petition is dismissed. The Rule is discharged.

(MANGESH S. PATIL, J.)

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