Manik Laxmanrao Zate vs The District Collector Hingoli ...
2021 Latest Caselaw 16540 Bom

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           BENCH AT AURANGABAD

                            WRIT PETITION NO.400 OF 2021

Manik s/o Laxmanrao Zate,
Age : 51 years, Occu. Agri.,
R/o Ukhali, Tq. Aundha (Nagnath),                           PETITIONER
District Hingoli                                (Orig. contesting respondent)

        VERSUS

1.      The District Collector, Hingoli,
        Collector Office, Hingoli

2.      Prakash Subhashrao Gaikwad                         (Orig. complainant)
        Age : 29 years, Occu. Agri.

3.      Vijay s/o Ashroba Mande,
        Age : Major, Occu. Agri.

4.      Munjaji s/o Gangadharrao Magar,
        Age : Major, Occu. Agri.

5.      Gautam s/o Manikrao Bhalerao,
        Age : Major, Occu. Agri.

6.      Smt. Malanbai Jagganath Gaikwad,
        Age : Major, Occu. Agri.

7.      Kamalbai Sudhakar Gikwad,
        Age : Major, Occu. Household

8.      Smt. Prathiba Vasantrao Gaikwad,
        Age : Major, Occu. Agri.

9.      Lalita Mariba Wavhal,
        Age : Major, Occu. Agri.

10.     Smt. Sanjivani Prasad Pandit,
        Age : Major, Occu. Agri.

        Respondent Nos.2 to 10 are
        R/o Ukhali, Tq. Aundha (Nagnath),
        District Hingoli




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                                           2                    WP400-2021.odt
11.   The Village Panchayat, Ukhali,
      through its Gramsevak,
      at R/o Ukhali, Tq. Aundha (Nagnath),
      District Hingoli                                 RESPONDENTS
                                       .....
Mr. Sudhir K. Chavan, Advocate for the petitioner
Mr. Y.G. Gujrathi, A.G.P. for the respondent/State
Mr. S.S. Tope, Advocate for respondent No.2
Mr. A.N. Nagargoje, Advocate for respondent Nos.3, 5 and 6
Mr. Vaibhav Pawar, Advocate for respondent Nos.4 and 7 to 10
                                      .....

                                     CORAM :   MANGESH S. PATIL, J.

                 DATE OF JUDGMENT RESERVED   :               25.11.2021
                 DATE OF JUDGMENT PRONOUNCED :               30.11.2021


JUDGMENT :

Heard.

2. Rule. The Rule is made returnable forthwith. The learned

A.G.P. waives service on behalf of respondent No.1, learned Advocate Mr.

S.S. Tope waives service for respondent No.2, learned Advocate Mr. A.N.

Nagargoje waives service for respondent Nos.3, 5 and 6 and learned

Advocate Mr. Vaibhav Pawar waives service for respondent Nos.4 and 7 to

10. At the joint request of learned Advocates for the parties, the matter is

heard finally at the stage of admission.

3. The petitioner is challenging the order passed by respondent

No.1 Collector dated 31.12.2020 holding him to have incurred a

disqualification under Section 36 read with Section 7 of the Maharashtra

Village Panchayat Act, 1958 (hereinafter referred to as `the Act') from

3 WP400-2021.odt holding the post of Sarpanch of village Ukhali, Taluka Aundha (Nagnath),

District Hingoli for not holding the requisite number of monthly meetings

and gram sabhas. The decision was rendered on a complaint filed by

respondent No.2.

4. Mr. S.K. Chavan, learned Advocate for the petitioner would

strenuously submit that the decision under challenge has been rendered in

blatant disregard to the principles of natural justice. The petitioner was

served with a vague notice dated 26.05.2020 (Exh-A) without containing

specific allegations as to what were the lapses on his part so as to

constitute the disqualification. In the absence of such specific charges

having been ever communicated to him, the decision was rendered. By

referring to the rojnama of the proceeding before respondent No.1

Collector, he would point out that the last date before pronouncement of

the order under challenge was 03.08.2020. It only marks presence of the

parties i.e. petitioner and respondent No.2 and the other respondents

through their Advocates. It does not mention about any arguments having

been heard by the learned Collector. He would further point out that it

reads that a report from Tahsildar, Aundha was called and the matter was

straightway reserved for final decision. Subsequently, the impugned

judgment and order has been pronounced on 31.12.2020. He would

further point out from the observations in the impugned order that a

report from the concerned Deputy Chief Executive Officer (Panchayat),

Zilla Parishad, Hingoli was also perused. It was dated 31.08.2020 and no

4 WP400-2021.odt opportunity was ever extended to the petitioner to know the contents of

the report, which were subsequently relied upon by respondent No.1

Collector while passing the impugned decision. If at all he was to rely

upon such a report, a copy of it ought to have been served to the

petitioner. That having not happened, the impugned order suffers from

gross illegality. In support of his submission, the learned Advocate would

place reliance upon the following decisions:

(i) Pratibha Sanjay Hulle Vs. Additional Collector & Ors.;

2010 (4) Bom.C.R.700

(ii) Sunil Daulat Patil V. State of Maharashtra & Ors.;

2014(1) Bom.C.R.1

(iii) Laxmibai Yadavrao Panchal Vs. The Additional Collector & Ors.; Writ Petition No.8668 of 2015, decided on 05.05.2016

(iv) Saw. Padminbai Narsing Panchal Vs. The Additional Collector & Ors.; Writ Petition No.2971 of 2017, decided on 05.12.2017

5. The learned A.G.P. and Mr. S.S. Tope, learned Advocate for

respondent No.2, by referring to their respective affidavits-in-reply, submit

that though the notice served to the petitioner to appear and contest the

proceeding before respondent No.1 Collector did not contain the

particulars, he was aware about the contents of the complaint filed by

respondent No.2 (Exh-B) and had even filed his written statement (Exh-C)

and made an attempt to show that there was sufficient cause for him not

to hold the meetings. They would, therefore, submit that it was not a case

5 WP400-2021.odt where the incumbent was completely in dark when he faced the enquiry.

They would, therefore, submit that the petitioner is not entitled now to put

up a grievance about absence of an opportunity of being heard and to meet

the charges. Having once participated in the enquiry, he cannot now be

allowed to turn around and put up such a defence.

6. The learned A.G.P. and learned Advocate Mr. S.S. Tope would

then refer to the decision of the Division Bench of this court in the case of

Gunwantrao Yeshwantrao Deshmukh Vs. State of Maharashtra and

another; 1981 Mh.L.J.815 and submit that the disqualification from

continuing as a Sarpanch for not convening the meeting as per the

provisions of the Act and Rules, without there being sufficient cause, is

automatic.

7. By referring to the decision in the case of Pralhad Bhikaji

Bargaje Vs. State of Maharashtra and others; 2016(6) Mh.L.J.900 , learned

A.G.P. and Mr. Tope, learned Advocate would submit that in similar set of

facts, this court had concluded that the petitioner therein had knowledge

about the specific allegations against him. He had filed a reply and it

could not be said that an opportunity of being heard was not extended to

him. They would also place reliance on the decision of coordinate bench

of this court in the case of Salimbi Mubarak Tamboli Vs. The State of

Maharashtra & Ors.; Writ Petition No.10956 of 2018, decided on

12.03.2019.

6 WP400-2021.odt

8. The learned A.G.P. and learned Advocate Mr. Tope would then

refer to the report of Tahsildar dated 27.11.2020 (Exh-R4) and submit that

the report was eloquent enough to demonstrate the number of lapses for

which the petitioner was guilty in not holding the meetings and even there

was an attempt in manipulation of the gram panchayat record. They

would further submit that even the gramsevak has indulged in the

illegality and respondent No.1 Collector specifically directed a disciplinary

proceeding to be initiated against him by his communication dated

04.08.2020 (Exh-R3).

9. I have carefully considered the rival submissions and perused

the papers, including the decisions cited at the bar.

10. It is the basic tenet of the law that whenever some adverse

action is to be taken, particularly of the kind of non-sitting a publicly

elected person, principles of natural justice have to be followed and the

charges have to be strictly established [see : Ravi Yashwant Bhoir Vs.

District Collector, Raigad and others; (2012)4 SCC 407 ]. There cannot be

any quarrel about the principle laid down in Gunwantrao (supra) that a

consequence of not holding necessary meetings pursuant to the provisions

of Section 7 of the Act and Rule No.4 of the Rules framed thereunder is

automatic.

11. The question that needs to be addressed in the present

7 WP400-2021.odt proceeding is as to if there is a failure on the part of respondent No.1

Collector in conducting enquiry by adhering to the principles of natural

justice and as to if, based on the material before him, his conclusion as to

the proof of charge are sustainable.

12. There cannot be dispute about the fact that the petitioner was

served with a notice (Exh-A) which simply called upon him to appear

before respondent No.1 Collector and to furnish his written and oral

submissions. It did not contain the particulars for which he was called

upon to tender his explanation. In similar set of facts and circumstances,

in the matters of Pratibha, Sunil, Laxmibai and Padminbai (supra), the

coordinate benches of this Court had remanded the matters back to the

concerned Collector for taking a decision afresh by extending an

opportunity of being heard to the concerned petitioners by communicating

specific charges to them.

13. At the first blush, the submission on behalf of the petitioner,

referring to these decisions, seems to be attractive. However, it needs to be

borne in mind that though the notice (Exh-A) was vague and did not

contain the particulars, the petitioner had subsequently appeared before

respondent No.1 Collector and has filed his written statement (Exh-C) to

the complaint of respondent No.2 (Exh-B). In his complaint, respondent

No.2 had given particulars as to how the petitioner had committed lapses

in holding the mandatory meetings. It was specifically pleaded that

8 WP400-2021.odt neither any gram sabha nor a monthly meeting was ever held after

08.08.2018. It was specifically alleged that even an endorsement to that

effect was made by the concerned gramsevak on the proceeding book.

Therefore, it cannot be said that the petitioner was completely oblivious of

the allegations made against him. This is what had happened and was

held by a coordinate bench in the matter of Pralhad (supra). In view of

the peculiar facts and circumstances akin to the present matter, it was held

that the petitioner therein was aware about the charges against him and

had even made an attempt to demonstrate that there was sufficient cause

for not holding the gram sabha and thereby had failed to discharge the

burden cast upon him.

14. But then, there are certain other facts and circumstances

which are peculiar to the matter in hand, which are sufficient to

demonstrate that the enquiry that was conducted by respondent No.1

Collector was not conducted strictly by adhering to the principles of

natural justice. As can be seen from the rojnama, the last date before

pronouncement of the impugned order was 03.08.2020. Apart from the

fact that the rojnama did not mention about the parties having been heard

finally, the matter was directed to be reserved for decision. It was

specifically mentioned that the report from Tahsildar to be called. The

impugned order was subsequently passed on 31.12.2020. It further reads

in paragraph 9 that the Collector had relied upon the report of the Deputy

Chief Executive Officer (Panchayat) dated 31.08.2020 and based on such

9 WP400-2021.odt report, it was concluded by the Collector that there was sufficient material

to demonstrate that the petitioner had failed to hold mandatory meetings.

If such is the state-of-affairs, when the last date of hearing was 03.08.2020

and the Collector had received the report of the Deputy Chief Executive

Officer on 31.08.2020 and subsequently passed the impugned order dated

31.12.2020, there is absolutely no material to demonstrate that the report

of the Deputy Chief Executive Officer, inspite of having sufficient time at

hand before pronouncing the impugned decision, was ever communicated

to the petitioner. If the contents of the report were to be relied upon by

the learned Collector before taking the decision, the principles of natural

justice ought to have been followed by giving its copy to the petitioner and

enabling him to meet the contents thereof. This is not an empty formality

but would have enabled him to demonstrate that the contents were not

factually correct.

15. Pertinently, the impugned order reads that the concerned

gramsevak in the proceeding book dated 18.08.2018 having made an

endorsement that no meetings were ever held after 18.08.2018. The

Collector, by his communication dated 04.08.2020 (Exh-R3) addressed to

the Chief Executive Officer of Zilla Parishad, Hingoli, specifically

mentioned that after conclusion of the enquiry by the Collector, the

concerned gramsevak had made a statement denying the contents of his

earlier report. In view of his such change in the stance, it was concluded

that he was misleading the Government and a disciplinary proceeding be

10 WP400-2021.odt initiated against him. This circumstance clearly indicates that there is a

serious dispute as to the genuineness of the endorsement appearing in the

proceeding book of the village panchayat dated 18.08.2020, which reads

to the effect that no meeting was ever held after that date. If this is the

state-of-affairs, factually, even it is doubtful as to if this entry could have

been relied upon by the learned Collector while holding the charge having

been proved.

16. In view of such peculiar state-of-affairs, in my considered view,

even this matter requires the course adopted by this court in the matters of

Pratibha, Sunil, Laxmibai and Padminbai (supra) to be followed.

17. The Writ Petition is allowed partly. The impugned order is

quashed and set aside and the matter is remitted back to respondent No.1

Collector for taking a decision afresh by conducting a fresh hearing in the

light of the observations made hereinabove.

18. The parties shall appear before respondent No.1 Collector on

15.12.2021 and there shall be no need for him to issue any notice to them.

He shall thereafter conduct appropriate hearing and decide the matter as

early as possible and in any case within six weeks thereafter.

19. The Rule is mad absolute in above terms.

[MANGESH S. PATIL] JUDGE npj/WP400-2021.odt