Bombay High Court
Bhushan Gunwatrao Pawar vs The Ld. Additional Commissioner ... on 1 July, 2022
Bench: Mangesh S. Patil
975.wp.3798.22.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.3798 OF 2022
Bhushan s/o Gunwantrao Pawar
Age : 36 years, Occu: Agriculture
R/o Nandgaon
Taluka and District - Jalgaon ... PETITIONER
VERSUS
1. The Ld. Additional Commissioner
Nasik Division- Nasik
2. The Ld. District Collectors
Jalgaon
3. The Group Gram Panchayat,
Nandgaon through Its Gramseveak,
Nandgaon Taluka & District - Jalgaon
4. Shantaram s/o Chandra Sonawane
Age : 72 years, Occu: Agriculture
R/o Nandgaon
Taluka & District - Jalgaon ... RESPONDENTS
...
Advocate for Petitioner : Mr. Jitendra V. Patil
AGP for Respondent Nos.1 and 2 : Mr. S.N. Morampalle
Advocate for Respondent No.4 : Mr. V.D. Hon i/b. Mr. A.V. Hon
...
CORAM : MANGESH S. PATIL, J.
DATE : 01.07.2022
JUDGMENT :
Heard. Rule. The Rule is made returnable forthwith. Learned
AGP and the learned advocate for the respondent No.4 waive service. At the
joint request of the parties, the matter is heard finally at the stage of
admission.
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2. The petitioner who is an elected Sarpanch is challenging the
order passed by the learned Additional Commissioner (respondent No.1) in
his appeal preferred under Section 16 of the Maharashtra Village Panchayats
Act, 1959 (herein after 'the Act'), dismissing the appeal and confirming the
order passed by the Collector (respondent No.2) in a complaint filed by the
respondent No.4 about he (petitioner) having incurred disqualification
under Section 14(1)(h) of that Act for failure to pay the taxes within three
months of receiving a demand in the form of bill for the year 2018-19.
3. The learned advocate Mr. Patil for the petitioner would submit
that there was no concrete proof regarding the date of service of the tax bill
to him. Since it is a matter of disqualification of an elected Sarpanch there
should have been a strict proof. Though the bill that was produced on the
record had a printed date as 01.07.2019, it also was having petitioner's
signature on its reverse with a date as 10.11.2019 and there was no cogent
and convincing evidence to discard the date of receipt of the bill mentioned
below his signature. It was a sheer mistake committed by the concerned
printer in mentioning the date as 01.07.2019 while printing the bill book.
Realizing the fact that there was such uncertainty, in an earlier round of
litigation for the same purpose, the respondent No.1 Commissioner had
remanded the matter for de novo inquiry. The respondent No.4 had
challenged that order before this Court in Writ Petition No.6863/2021 but it
was dismissed. He would submit that pursuant to such order of remand a
detail inquiry was conducted, statement of various employees including the
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owner of Gayatri Enterprises which printed the bill book was examined. The
Commissioner and the Collector have drawn inferences on the basis of
surmises and conjunctures. The petitioner could not have been disqualified
on the basis of mere suspicion.
4. Learned advocate Mr. Patil would submit that the observation
and the conclusion drawn by the respondent No.1 Commissioner are also
based on the conclusion drawn in a similar proceeding initiated against
some of the members of the Gram Panchayat seeking their disqualification
relying upon the same set of facts and the bills having printed date as
01.07.2019. It was a suo moto proceeding initiated by the Collector and the
petitioner could not have been attributed with having taken a contrary stand
in that proceeding. No such inference was, therefore, deducible and the
order under challenge be quashed and set aside.
5. The learned Senior advocate Mr. V.D. Hon on behalf of
respondent No.4 would strenuously submit that the petitioner is a Sarpanch
and there was ample material before the Collector and the Commissioner to
demonstrate that the respondent No.3 Gram Sevak had indulged in
manipulations of the Gram Panchayat record which he could not have
possibly done without the active connivance of the petitioner. The
statements of the employee of the Gram Panchayat were recorded who
specifically mentioned about petitioner having demanded the bill book and
at the time of handing over it none of the counterfoils of the bill book were
having any signature on the reverse but when he returned the bill book after
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three days, there was his signature with a date on the reverse of his bill.
This was concrete evidence regarding manipulation. Even the statement of
the owner of Gayatri Enterprises belies the petitioner's case in as much as
the former had stated the bill book having been printed on 14.11.2019 and
the date was incorrectly printed as 01.07.2019, still, it was unbelievable that
a bill book which was handed over on 14.11.2019 could have been used and
the petitioner could have received a bill there from on 10.11.2019.
6. Mr. Hon would further submit that in a similar proceeding of
few members of the Gram Panchayat who have been disqualified under
Section 14 (1)(h) of Act, they have been disqualified by taking the date of
the service of bills as 01.07.2019 but the petitioner is now taking a contrary
stand. All these factors were taken into consideration while disqualifying
him by the orders under challenge. There is no illegality and the Writ
Petition be dismissed.
7. Learned AGP supports both the orders.
8. At the out set, it is necessary to bear in mind that as laid down
in the matter of Ravi Yashwant Bhoir Vs. District Collector, Raigad and Ors.;
(2012) 4 Supreme Court Cases 407 the evidence to disqualify an elected
candidate has to be strict. Taking into account the ingredients for attracting
a disqualification under Section 14(1)(h) of the Act, it is imperative to
demonstrate that failure to pay the dues within three months from the date
of demand by service of a bill.
9. Taking into account the fact situation of the matter in hand, if
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the petitioner was served with a bill on 01.07.2019, obviously his payment
of tax was beyond three months but if the bill was taken as served to him on
10.11.2019, the payment would be within this time limit of three months. It
is, therefore, a decisive factor as to on which date the demand was raised in
the form of service of the bill.
10. As is mentioned by the learned advocates herein above, the bill
bears a printed date on the front side as 01.07.2019. The owner of Gayatri
Enterprises through whom this bill book was got printed has stated that it
was a sheer mistake. The learned Commissioner respondent No.1 to this
extent has accepted his version. This person has thereafter stated about
having handed over the bill book on 14.11.2019 but the learned
Commissioner has disbelieved his such version by observing that the
statement was incorrect, and rightly so, because if the bill book was handed
over by him on 14.11.2019, the circumstance would belie the petitioner
since his signature with the date appearing on the reverse of the office copy
of the bill served to him bears a date of 10.11.2019. But then the Divisional
Commissioner has observed that this bill book could have been handed over
by him prior to 10.11.2019.
11. The fact remains that the Commissioner has believed his version
that the bill book was not printed on 01.03.2019, the date which was
printed on each of these bills on the front side. If this is the state of affairs,
one will have to proceed on the premise that this could not have been
treated as a date for reaching to the conclusion that the demand for taxes
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was raised on that day i.e. 01.07.2019 which is the basis for the authorities
below to reach to the conclusion that this was the correct date on which the
demand was raised.
12. Assuming for the sake of argument that the petitioner as also
the Gram Sevak have indulged in some manipulation and even if this date
below the petitioner's signature was put later on, still, the fact remains that
in order to prove the ingredients for attracting the disqualification under
Section 14(1)(h), the date of service of demand notice or bill which is so
vital is not forthcoming. Merely disbelieving the petitioner's version is not
suffice. The authorities below ought to have undertaken a scrutiny to
ascertain as to on which date the bill was served upon the petitioner if that
was not to be on 01.07.2019 or 10.11.2019.
13. True it is that an employee of the Gram Panchayat has stated
about the petitioner having demanded the bill book for taking photocopies
and while it was handed over to him there was no signature on the reverse
any of the bills but when it was returned after three days petitioner's
signature was appearing on the reverse of one of the bills. Accepting for the
sake of argument that this is a correct state of affairs, still what is required is
the proof regarding the exact date on which the demand was raised. Merely
discarding the petitioner's version would not be sufficient.
14. Again, even if it is a matter of record that few members of the
Gram Panchayat have been disqualified on the same ground by treating the
date of demand as 01.07.2019, as has been mentioned by the learned
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advocate for the petitioner, though his name appears in the order passed by
the Collector in that matter, it was a suo moto inquiry initiated by the
Collector and the fact has not been controverted by the respondents.
Besides, as is mentioned herein above, the Commissioner has now on the
basis of the statement of the owner of Gayatri Enterprises, accepted his
version that it was a mistake in printing the date on the front side of each of
the bill books as 01.07.2019. If this is the state of affairs, the petitioner
cannot be punished for the inference drawn in the parallel proceeding right
in the teeth of the material available in the matter in hand.
15. Taking stock of the material discussed herein above, though
there is a concurrent finding of fact by the two authorities, when the
inference drawn by them is palpably and patently erroneous and illegal, this
Court has to step in and correct the error in exercise of the Writ jurisdiction.
The inference drawn by them is clearly perverse and arbitrary beside being
based on surmises and conjunctures.
16. The Writ Petition is allowed in terms of prayer clause 'A'.
17. The Rule is made absolute.
(MANGESH S. PATIL, J.)
habeeb
