Mrs. Sangeeta Popat Doltade vs State Of Maha. Thr. Dept. And Ors
2023 Latest Caselaw 4860 Bom

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                          CIVIL APPELLATE JURISDICTION

                        WRIT PETITION NO. 5373 OF 2023


 MRS.SANGEETA POPAT DOLTADE                           )...PETITIONER

          V/s.

 STATE OF MAHARASHTRA & ORS.                          )...RESPONDENTS

 Mr.Saurabh Butala a/w. Mr.Shubham Gangan i/b. Mr.Pankaj
 Deokar, Advocate for Petitioner.

 Ms.Kavita Solunke, AGP for Respondent - State.
 Mr.Vikas P. Ahir, Tahsildar, Taluka Maan, District Satara,
 Maharashtra, present in the Court.

                           CORAM    :    ABHAY AHUJA AND
                                         M.M.SATHAYE, JJ.

                           DATE     :    23 MAY 2023
                                         (VACATION COURT)

 P.C. :

1. Heard learned Counsel for the parties.

2. Mr.Butala had expressed the urgency in the matter in view

of the notice dated 17 May 2023 fixing 23 May 2023 as the date

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for convening the special meeting to elect the Sarpanch. Learned

Counsel has tendered the same across the bar. Mr.Butala has also

tendered across the bar the order dated 16 May 2023 by the

Tahsildar, Maan (Dahiwadi) holding that in view of the

disqualification of the Petitioner, the election to the post of

Sarpanch of the Mardi Gram Panchayat should be conducted

recording that that although an Appeal has been filed, there is no

stay against the order of disqualification.

3. This matter was mentioned yesterday morning and a

production was sought on 22nd May 2023 when at the request of

the learned AGP the matter was posted for today for the learned

AGP to take instructions in the matter.

4. Today, when the matter is called out, the learned AGP, duly

instructed by Mr.Vikas P. Ahir, Tahsildar of Taluka Maan, District

Satara, who is present in the Court, submits that as per her

instructions, the Appeal against the judgment and order dated 13

March 2023 passed by the Divisional Commissioner, Pune,

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disqualifying the Petitioner as Member as well as Sarpanch of the

Mardi Gram Panchayat is pending before the State Government

and there is no order of stay obtained against the order of

disqualification. She also confirms, on instructions, that today at

2.00 p.m. a special meeting of the Gram Panchayat has been

convened to elect the Sarpanch. Learned AGP seeks time to file

reply in the matter.

5. We note that the order dated 16 May 2023 and the notice

dated 17 May 2023 are not part of the Petition and grant leave to

Petitioner to amend the Petition forthwith.

6. We have heard the learned Counsel and also perused the

Petition as well as the annexures thereto and in particular the

report of the Chief Executive Officer of the Zilla Parishad, Satara,

dated 9 January 2023 (annexed at page 130) and observe that the

report which contains the issues in respect of which there is a

complaint by the Respondent no.7 have been analyzed in detail

and observe that some allegations are partly proved and some not

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proved. The concluding portion of the said report on page 147

clearly records the opinion of the Chief Executive Officer that from

the analysis it cannot be proved that there was any neglect or

deliberate misconduct in the discharge of duties by Petitioner and

even in respect of the issues that were partly proved, there was no

serious nature of neglect or misconduct on the part of Petitioner

and therefore, there is no need to take action under Section 39(1)

of the Maharashtra Village Panchayat Act, 1958. Despite this

recommendation, the Divisional Commissioner has, by the

impugned order dated 13 March 2023 disqualified the Petitioner

not only as a Member of the Gram Panchayat but also as the

Sarpanch, against which an Appeal as mentioned above, has been

filed. Section 39 of the said Act pertains to removal of any

Sarpanch or Upa-Sarpanch from the office and provides that no

person shall be removed from office unless the Chief Executive

Officer in the case of Clause (i) with respect to removal of any

Sarpanch and Upa-Sarpanch who has been held guilty of

misconduct in the discharge of his duties or of any disgraceful

conduct or of neglect of or incapacity to perform his duty, or is

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persistently remiss in the discharge thereof, unless the Chief

Executive Officer 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 has

submitted a report to the Commissioner within a period of one

month. It is understood that it is only after considering the said

report that the Divisional Commissioner is to pass an order of

disqualification.

7. Mr.Butala submits that aggrieved by the said order,

Petitioner, within the period of limitation, has filed an Appeal

before the State Government on 21 March 2023. He further

submits that they had also tried to list the Appeal for hearing by

filing a praecipe in view of the urgency and despite that, the

Appeal has not been heard till date.

8. Being apprehensive that an election schedule would be

announced for election of Sarpanch, Petitioner also filed a Writ

Petition in this Court on 27 March 2023 and sought circulation.

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We observe from the roznama that circulation was granted for 19

April 2023. However, on 19 April 2023, the matter was posted to

24 April 2023 (H.O.B.). On 24 April 2023, at the request of the

learned Counsel for the Petitioner, the matter was stood over to 7

June 2023. Mr.Butala, learned Counsel for the Petitioner would

submit that the said request was made in as much as, at that time,

there was no notice of the election of Sarpanch; however, on 19

May 2023, Petitioner came to know of the notice dated 17 May

2023 that election for Sarpanch has been scheduled on 23 May

2023 at 2.00 p.m.

9. We observe that although an Appeal has been pending and

just because the Appeal has not been heard and no stay has been

granted, the Tahsildar has passed an order dated 16 May 2023

that the election be held for the post of Sarpanch and that

pursuant to this order, the notice with respect to the conduct of

election on 23 May 2023 at 2.00 p.m. has come to be issued.

Respondent no.7 would also need to be heard in the matter.

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10. We are, therefore, of the view that this is a fit case to stay

the proceedings to be conducted for appointment of Sarpanch on

23 May 2023 at 2.00 p.m., until the parties are heard in this

matter.

11. Issue notice to Respondents, returnable on 6 June 2023.

Ms.Solunke waives service for Respondents no.1, 2 and 5. Reply

to be filed by the next date.

12. In the meanwhile, let there be a stay to the proceedings to

be conducted for appointment of Sarpanch on 23 May 2023 at

2.00 p.m., pursuant to the order dated 16 May 2023 and notice

dated 17 May 2023 till the next date.

13. List the Writ Petition on 6 June 2023.

          (M.M.SATHAYE, J.)                 (ABHAY AHUJA, J.)




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