Bombay High Court

Shrikrishna Sukhdev Solanke And ... vs The Divisional Commissioner, ... on 11 September, 2023

Bench: A.S. Chandurkar, Vrushali V. Joshi

2023:BHC-NAG:13428-DB
                                        1                          WP-5879 with 1277 of 2023.odt


                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              NAGPUR BENCH, NAGPUR
                                        Writ Petition No.5879 of 2023
                                                    With
                                        Writ Petition No.1277 of 2023

                                        Writ Petition No.5879 of 2023
                Rahul S/o Vasantrao Arkhaarao,
                Aged about 39 years,
                Occu.: Agriculturist,
                R/o At Po Rajanda,
                Tq. Barshitakli, Dist. Akola,
                Presently at Nagpur.                                    ... Petitioner


                Versus


                1. The Divisional Commissioner,
                   Amravati Division, Amravati.


                2. Zilla Parishad, Akola,
                   through its Chief Executive Officer,
                   District Akola.


                3. Block Development Officer,
                   Panchayat Samiti Barshitakli,
                   Dist. Akola.


                4. Village Development Officer,
                   Gram Panchayat Rajanda,
                   Tah. Barshitakli, Dist. Akola.


                5. Shrikrishna Sukhdev Solanke,
                   Aged 64 years,
                   Occ.: Agriculturist/Up-Sarpanch,
                   Gram Panchayat Rajanda.
                      2                         WP-5879 with 1277 of 2023.odt




6. Raju S/o Uttamrao Solanke,
   Aged about 47 years,
   Occu.: Ex-Sarpanch,
   Gram Panchayat Rajanda.


7. Vijay S/o Kisan Bhagewar,
   Aged about 33 years,
   Occ.: Member,
   Gram Panchayat Rajanda.


8. Jaya Prabhakar Kale,
   Aged about 40 years,
   Occ.: Member,
   Gram Panchayat Rajanda.


9. Karuna Dhyandepo Arkharao,
   Aged about 51 years,
   Occ.: Member,
   Gram Panchayat Rajanda.


10.Varsha Ramdas Solanke,
   Aged about 45 years,
   Occ.: Member,
   Gram Panchayat Rajanda.


   All Nos.1 to 6 R/o Rajanda,
   Tah. Barshitakli, Dist. Akola.                     ... Respondents


Shri S.D. Chopde, Counsel for Petitioner.
Shri A.S. Fulzele, Additional Government Pleader for Respondent
No.1.
Shri N.M. Kolhe, Counsel for Respondent Nos.2 to 4.
                      3                         WP-5879 with 1277 of 2023.odt


                                  With
                    Writ Petition No.1277 of 2023
1. Shrikrishna Sukhdev Solanke,
   Aged about 64 years,
   Occ.: Agriculturist/Upsarpanch,
   Gram Panchayat Rajanda.


2. Raju S/o Uttamrao Solanke,
   Aged about 47 years,
   Occ.: Ex-Sarpanch,
   Gram Panchayat Rajanda.


3. Vijay S/o Kisan Bhagewar,
   Aged about 33 years,
   Occ.: Member,
   Gram Panchayat Rajanda.


4. Jaya Prabhakar Kale,
   Aged about 40 years,
   Occ.: Member,
   Gram Panchayat Rajanda.


5. Karuna Dhyandeo Arakharao,
   Aged about 51 years,
   Occ.: Member,
   Gram Panchayat Rajanda.


6. Varsha Ramdas Solanke,
   Aged about 45 years,
   Occ.: Member,
   Gram Panchayat Rajanda.


   All Nos.1 to 6 R/o Rajanda,
   Tah. Barshitakli, District Akola.                ... Petitioners
                      4                           WP-5879 with 1277 of 2023.odt




Versus


1. The Divisional Commissioner,
   Amravati Division, Amravati.


2. Zilla Parishad, Akola,
   through its Chief Executive Officer,
   District Akola.


3. Block Development Officer,
   Panchayat Samiti Barshitakli,
   District Akola.


4. Village Development Officer,
   Gram Panchayat Rajanda,
   Tah. Barshitakli, Distt. Akola.


5. Rahul Vasantrao Arakharao,
   Aged Major, Occu. Sarpanch,
   Gram Panchayat Rajanda,
   Tah. Barshitakli, Distt. Akola.


6. State of Maharashtra,
   through its Secretary,
   Rural Development Department,
   Mantralaya, Mumbai-32.                             ... Respondents


Shri Ram Karode, Counsel for Petitioners.
Shri A.S. Fulzele, Additional Government Pleader for Respondent
Nos.1 and 6.
Shri N.M. Kolhe, Counsel for Respondent Nos.2 to 4.
Shri S.D. Chopde, Counsel for Respondent No.5.
                      5                           WP-5879 with 1277 of 2023.odt


      CORAM : A.S. CHANDURKAR & MRS. VRUSHALI V. JOSHI, JJ.
       Date when arguments were heard         : 6th September, 2023.
       Date when the order was pronounced : 11 th September, 2023.

ORDER (PER A.S. CHANDURKAR, J.) :

1. Both the writ petitions have been heard together considering

the nature of challenge as raised therein.

2. The petitioner in Writ Petition No.5879 of 2023 has been

elected as Sarpanch of Gram Panchayat Rajanda, Taluka Barshitakli,

District Akola. The respondent Nos.5 to 10 in the said writ petition

who are the petitioners in Writ Petition No.1277 of 2023 filed

proceedings under Section 39 of the Maharashtra Village Panchayats

Act, 1959 (for short, 'the Act of 1959') on 3-1-2023 seeking

disqualification of the Sarpanch. On such proceedings being filed

before the Divisional Commissioner, Amravati a communication

dated 10-1-2023 was issued by the Divisional Commissioner to the

Chief Executive Officer, Zilla Parishad, Akola to conduct an enquiry as

contemplated by Section 39(1) of the Act of 1959 and submit a report

in that regard. On receiving this communication, the Chief Executive

Officer on 20-1-2023 issued a communication to the Block

Development Officer, Panchayat Samiti, Barshitakli to obtain all

relevant information from the concerned parties and after making an

enquiry submit a report in that regard. It was further stated that such

report/say was directed to be filed on 3-2-2023. Acting on the

aforesaid communication, the Block Development Officer called upon 6 WP-5879 with 1277 of 2023.odt

the Sarpanch to submit his say in the said matter with a view to

conduct necessary enquiry.

3. The communication dated 20-1-2023 issued by the Chief

Executive Officer to the Block Development Officer as well as the

subsequent communication dated 20-2-2023 issued by the Block

Development Officer have been challenged by the complainants on the

ground that the enquiry contemplated under Section 39(1) of the Act

of 1959 is to be conducted by the Chief Executive Officer himself and

the power in that regard cannot be delegated to any other officer

below the rank of Chief Executive Officer. While issuing notice in Writ

Petition No.1277 of 2023, the communications dated 20-1-2023 as

well as 20-2-2023 came to be stayed. Thereafter on 13-6-2023, the

Block Development Officer submitted his report to the Deputy Chief

Executive Officer with regard to the aforesaid proceedings under

Section 39(1) of the Act of 1959. On receiving the said report, the

Chief Executive Officer forwarded the entire record to the Divisional

Commissioner by his communication dated 26-6-2023.

4. In the aforesaid factual backdrop, Shri S.D. Chopde, learned

counsel for the Sarpanch, submitted that the enquiry report

dated 26-6-2023 as submitted by the Chief Executive Officer was

liable to be set aside since such enquiry had been conducted by an

officer who was not empowered to do so. The enquiry in question

having been conducted by the Block Development Officer and the

same having been forwarded to the Chief Executive Officer, it was 7 WP-5879 with 1277 of 2023.odt

clear that the Chief Executive Officer himself did not conduct the

enquiry as required by Section 39(1) of the Act of 1959. The

Divisional Commissioner was therefore not entitled to consider the

enquiry report dated 26-6-2023 in the proceedings under

Section 39(1) of the Act of 1959 and such report was liable to be set

aside. In that regard, the learned counsel placed reliance on the

decisions of this Court in Writ Petition No.5609 of 2022 ( Sau. Aarti

W/o Khushal Tavar Versus Chief Executive Officer, Zilla Parishad,

Washim and others) decided on 15-11-2022, Writ Petition No.7158 of

2017 (Shalik S/o Bolan Dahiwale Versus State of Maharashtra and

others) decided on 6-10-2018 as well as the decision in Ankush s/o

Pandurang Shinde Versus The State of Maharashtra and others

[2022(3) ALL MR 56]. It was thus submitted that after quashing the

enquiry report dated 26-6-2023, a direction be issued to the Chief

Executive Officer to himself conduct the enquiry as required by

Section 39(1) of the Act of 1959.

5. Shri Ram Karode, learned counsel for the complainants,

opposed the aforesaid submissions. According to him, after the

communications dated 20-1-2023 and 20-2-2023 were challenged by

the complainants and the said communications were stayed, the Chief

Executive Officer had himself conducted such enquiry and had

submitted his report to the Divisional Commissioner. The enquiry

report dated 26-6-2023 could not be said to be vitiated on the ground

that the enquiry was conducted by the Block Development Officer.

8 WP-5879 with 1277 of 2023.odt

The Block Development Officer had merely collected the basic

material to enable the Chief Executive Officer to conduct his enquiry.

He further submitted that this position was clear from the

affidavit-in-reply filed by the Chief Executive Officer in Writ Petition

No.1277 of 2023. It was then submitted that the challenge raised by

the Sarpanch to the enquiry report dated 26-6-2023 was premature

for the reason that the Divisional Commissioner was empowered to

consider the validity of the enquiry report. The Sarpanch could

challenge the enquiry report before the Divisional Commissioner and

raise these contentions while defending the proceedings under

Section 39(1) of the Act of 1959. There was no reason to entertain

such challenge at this stage since the proceedings under Section 39(1)

of the Act of 1959 were pending before the Divisional Commissioner.

In that regard, the learned counsel sought to rely upon the judgment

of the Hon'ble Supreme Court in Indermani Kirtipal Versus Union of

India and others (AIR 1996 SC 1567) as well as the order passed by

this Bench in Writ Petition No.3857 of 2023 ( Dipak Ambadas Gavai

and others Versus The Divisional Commissioner, Amravati Division,

Amravati and others) dated 6-7-2023. He further submitted that the

writ petition filed by the Sarpanch was liable to be dismissed.

6. Having heard the learned counsel for the parties and having

perused the documents on record, we are not inclined to examine the

challenge raised to the enquiry report dated 26-6-2023 at this stage

for the following reasons :-

                     9                             WP-5879 with 1277 of 2023.odt


       (a)    The proceedings under Section 39(1) of the Act of 1959

seeking disqualification of the Sarpanch are pending before the Divisional Commissioner.

(b) Under Section 39(1) of the Act of 1959, the Divisional Commissioner is empowered to consider as to whether the enquiry as contemplated by the said provisions has been conducted by the Chief Executive Officer as required. If it is demonstrated by the party challenging such enquiry report that the enquiry is not conducted in accordance with the said provisions, the Divisional Commissioner has the necessary jurisdiction to take a decision in that regard. If he is satisfied that such enquiry is not conducted in accordance with the statutory requirements, he has the jurisdiction to ignore or refuse to rely upon such enquiry report. This exercise is not yet undertaken by the Divisional Commissioner.

(c) Since the right of the party facing proceedings under Section 39(1) of the Act of 1959 is not taken away and as all possible defences are available for being raised in the said proceedings, the challenge to the enquiry report at this stage would be premature. This aspect has been considered in Dipak Ambadas Gavai and others (supra) decided by this Bench.

7. Since we find that it is permissible for the Sarpanch in the

present case to raise an appropriate challenge to the enquiry report

dated 26-6-2023 in the proceedings that are pending before the

Divisional Commissioner under Section 39(1) of the Act of 1959, we

are not inclined to entertain the said challenge on merits. Keeping all

points raised in Writ Petition No.5879 of 2023 open for being raised 10 WP-5879 with 1277 of 2023.odt

before the Divisional Commissioner, the said writ petition stands

dismissed.

8. Since the purpose of filing Writ Petition No.1277 of 2023 stands

served in the light of the stand of the complainants that a fresh

enquiry report has been now submitted by the Chief Executive Officer

on 26-6-2023, it is not necessary to keep the present writ petition