Bombay High Court

Sau. Kalpana W/O Baburao Thakre vs Ravindra S/O Baliram Bhagat And ... on 27 April, 2022

Bench: Manish Pitale

                                                      CORRECTED-5.wp4193.2021jud.doc




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   NAGPUR BENCH AT NAGPUR
                  WRIT PETITION NO. 4193 OF 2021
Sau. Kalpana w/o Baburao Thakre
Aged about 35 years,
Occu. Agriculturist and Sarpanch,
                                                    .. Petitioners
Gram Panchayat, Nandgaon,
Tq. Mangrulpir, Distt. Washim.

               Versus
1. Ravindra s/o Baliram Bhagat
Aged about 39 years,
Occ.: Member, Gram Panchayat,
Nandgaon, R/o. Chincholi,
Tq. Mangrulpir, Distt. Washim.
2. Secretary, Gram Panchayat,
Nandgaon, R/o. Nandgaon,                        .. Respondents
Tq. Mangrulpir, Distt. Washim.

3. Collector, Washim,
Tq. & Distt. Washim.

4. Gram Panchayat, Nandgaon,
Tq. Mangrulpir, Distt. Washim,
Through its Secretary.

Mr. D.R. Khapre, Advocate for petitioner.
Mr. A.R. Deshpande, Advocate for respondent No.1.
Mr. K.L. Dharmadhikari, AGP for respondent No.3.

                                 CORAM   :     MANISH PITALE, J.

                                 DATED   :     27.04.2022.

ORAL JUDGMENT

Rule. Rule made returnable forthwith. Heard finally

with the consent of the learned counsel appearing for the rival parties.

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(2) By this writ petition, the petitioner has challenged

order dated 23.09.2021, passed by the respondent No.3 - Collector,

Washim, under Section 36 of the Maharashtra Village Panchayat Act,

1958, whereby the petitioner as the elected Sarpanch of Gram

Panchayat, Nandgaon, has been disqualified, due to failure to hold

meetings of the Gram Panchayat at least once a month.

(3) This Court, while issuing notice in the present writ

petition on 21.10.2021, passed interim order in favour of the

petitioner, as a result of which she has continued on the said post

during the pendency of the writ petition.

(4) The petitioner was elected as Sarpanch of the said

Gram Panchayat in the year 2017. The respondent No.1, also an

elected Member of the said Gram Panchayat, filed an application and

initiated proceedings under Section 36 of the aforesaid Act against the

petitioner for her disqualification, on the ground that she had failed to

conduct meetings of the Gram Panchayat at least once in every month

during the period between March, 2020 to October, 2020. It was

claimed that a meeting ought to have been held at least once in a

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month in terms of Rule 3 of the relevant Rules.

(5) It was further submitted that there was no sufficient

cause shown for failure on the part of the petitioner to hold such

meetings and therefore, she had invited disqualification as

contemplated under Section 36 of the said Act. The petitioner

appeared before the respondent No.3 - Collector and opposed the said

application. The parties relied upon various documents.

(6) The respondent No. 3 - Collector called for a report

from the Block Development Officer of the Panchayat Samiti,

Mangrulpir. The report drew adverse inferences against the petitioner.

The respondent No. 3 - Collector took into consideration the aforesaid

report and material on record and concluded that monthly meetings

were indeed not held during the said period and that therefore, the

petitioner invited disqualification under Section 36 of the said Act.

Accordingly, the application filed by respondent No.1 was allowed and

the petitioner was held to be disqualified to hold the elected post of

Sarpanch of the said Gram Panchayat.

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(7) Mr. D.R. Khapre, learned counsel appearing for the

petitioner vehemently submitted that the impugned order was

unsustainable as it was casually passed by respondent No.3 - Collector,

without appreciating the drastic consequences on the petitioner, who

held the elected post of Sarpanch of the Gram Panchayat. It was

submitted that persons democratically elected cannot be unseated in a

casual manner.

(8) It is further submitted that the material placed on

record on behalf of the petitioner belied the conclusions rendered in

the report of the Block Development Officer and that the Collector

ought not to have relied on the said report. It was submitted that

sufficient cause was indeed demonstrated for not being able to hold

the meetings and that therefore, the respondent No.3 - Collector ought

not to have exercised power under Section 36 of the said Act to

disqualify the petitioner. Reliance was placed on the judgment of this

Court in the case of Shubhangi Anil Gawande and anr. Vs. Additional

Collector, Amravati and Ors. 2010 (2) Mh.L.J. 368.

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(9) Mr. A.R. Deshpande, learned counsel appearing for

the contesting respondent No.1 submitted that the respondent No.3 -

Collector in the present case, correctly found that, not only was the

petitioner responsible for having failed to conduct meeting for the

month of October, 2020 but, the petitioner was found to have failed in

conducting meetings of the Gram Panchayat at least once a month

between March, 2020 and July, 2020, without sufficient cause. It was

submitted that the material on record was properly appreciated to

render findings against the petitioner. Apart from this, the learned

counsel for respondent No.1 relied upon the documents filed along

with reply placed before this Court on behalf of the said respondents.

By inviting attention of this Court to copies of the attendance register

and the details pertaining to the meetings for the months of August,

September and October, it was contended that when the documents

received by the respondent No.1 from the Gram Panchayat were

compared with the copies of the documents on which the petitioner

relied before the respondent No.3 - Collector as well as this Court, it

was evident that there were manipulations and over-writing. This

indicated that the petitioner not only tried to mislead respondent No.3

during the proceedings under Section 36 of the said Act, but this Court

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has also sought to be misled by such manipulations. It was submitted

that therefore, the present writ petition ought to be dismissed on this

ground also.

(10) This Court has considered the rival submissions in

the backdrop of the material placed on record. In the aforesaid

judgment in the case of Shubhangi Anil Gawande (supra) this Court in

paragraph 6 has held as follows:

"6. The provisions of Section 36 of the Act show that the obligation to convene meeting of Panchayat is contemplated upon Sarpanch and in his absence on Upsarpanch. Disqualification accrues for not convening such meeting without sufficient cause. The finding of the Collector on question of availability of such sufficient cause has been made final. This, therefore, clearly shows that mere not holding of meeting is not disqualification and something more is required to be brought on record. The absence of meeting has to be shown as deliberate failure to hold meeting and for that purpose, it is required to be established that though meeting could have been held as required, it was not held. Thus, absence of sufficient cause for not holding the meeting is the material ingredient in the entire scheme."

(11) It is evident that from the aforesaid position of law

that absence of sufficient cause for failure to hold meetings is indeed

the material ingredient in the scheme contemplated under Section 36

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of the said Act. Therefore, it is not only necessary to demonstrate that

there was indeed a failure to hold at least one meeting in every month

but, it has to be demonstrated that such failure to hold meeting was

without sufficient cause.

(12) In the present case, the impugned order shows that

the respondent No.3 - Collector has heavily relied upon the report

submitted by the Block Development Officer. After referring to the

said report, the respondent No.3 appears to have agreed with the

recommendations in the said report that the petitioner had failed to

hold meetings at least once in a month without sufficient cause

between March, 2020 to July, 2020 and also for the month of October,

2020. The respondent No.3 - Collector recorded that the Block

Development Officer correctly rendered adverse findings against the

petitioner, because there was no Government Circular to show that

even for the period between March, 2020 to July, 2020, the meetings

ought not to be held due to the Covid-19 Pandemic. As regards failure

to hold meeting for the month of October, 2020, there does not appear

to be any detailed discussion in the backdrop of the attendance

registers and other such material produced on record by the rival

parties.

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(13) This Court is of the opinion that the respondent No.3

- Collector committed a grave error in agreeing with the report

submitted by the Block Development Officer, insofar as the period

between March, 2020 to July, 2020, was concerned. Due to the onset

of the Covid - 19 Pandemic, lock-down had to be imposed in March,

2020. The situation pertaining to the said Pandemic continued to be

serious and many activities, including even Court sittings could not

take place due to periodic directions issued by the Government in

order to curtail the spread of the Covid-19 virus. In such a situation,

the respondent No.3 - Collector could not have held against the

petitioner for the period between March, 2020 to July, 2020, only on

the ground that there was no Circular issued by the Government that

meetings of the Gram Panchayat need not be held in the backdrop of

the Covid -19 Pandemic. The aforesaid reason is wholly unsustainable.

(14) This Court is of the opinion that the respondent No.3

- Collector himself being a senior functionary in the Government

machinery, ought to have realized the seriousness of the situation

during the Covid-19 Pandemic and absence of such a Circular could

not have been a ground to hold that the petitioner was at fault for

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having failed to conduct at least one meeting in a month for the said

period when the Covid-19 Pandemic was raging. On the contrary, if

such meetings were insisted upon, perhaps appropriate action would

have been warranted against the persons responsible for holding such

meetings. Therefore, at least for the period between March, 2020 to

July, 2020, the findings rendered in the impugned order are wholly

unsustainable.

(15) In this situation, the question of failure to hold

meeting at least once a month stands limited only for the month of

October, 2020. As regards the failure to hold meeting at least once in

the said month, the petitioner has relied upon the attendance register

and other such documents before this Court. If the contents of the said

documents are to be appreciated, it would be this Court for the first

time appreciating such material to render findings either for or against

the petitioner. The impugned order shows that the respondent No.3 -

Collector failed to examine such material in detail as regards the

alleged failure on the part of the petitioner to hold a meeting of the

Gram Panchayat at least once in the month of October, 2020.

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(16) The serious allegations of manipulations made on

behalf of respondent No.1, against the petitioner have given a different

colour to the present controversy. But, any pronouncement on the

same would have to be rendered by the respondent No.3 - Collector,

on the basis of material that may be placed on record by the rival

parties. The contentions sought to be raised on behalf of respondent

No.1 as regards alleged manipulations of the records, were not raised

before the respondent No.3 - Collector and that was indeed not a

factor taken into consideration by the respondent No.3, while

examining as to whether the petitioner had indeed made out sufficient

cause to explain as to why meeting could not be held at least once in

the month of October, 2020.

(17) Therefore, this Court is inclined to partly allow the

present writ petition and to remand the matter back to the respondent

No.3 - Collector, for fresh consideration on the basis of material that

may be placed on record by the rival parties, only in respect of alleged

default to hold even one meeting during the month of October, 2020.

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(18)              In view of the above, the writ petition is partly

allowed. The impugned order is quashed and set aside. The matter is

sent back to respondent No.3 - Collector for fresh consideration.

(19) It is made clear that the question as to whether the

petitioner invited disqualification under Section 36 of the said Act,

would be examined by respondent No. 3 - Collector only in respect of

alleged failure to hold meeting at least once during the month of

October, 2020. This Court has already found that no fault could be

attributed to the petitioner for failure to hold meetings at least once in

a month between March, 2020 to July, 2020.

(20) The parties will be at liberty to file further affidavits

and documents in support of their respective stands within a period of

two weeks of appearance before the respondent No.3 - Collector. The