Bombay High Court
Kumari Mayuri Prakash Warekar vs State Of Maharashtra And Ors on 4 March, 2024
Author: Amit Borkar
Bench: Amit Borkar
2024:BHC-AS:10314
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VRJ
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
VAIBHAV
WRIT PETITION NO.1058 OF 2024
RAMESH
JADHAV
Digitally signed by
VAIBHAV RAMESH
JADHAV
Date: 2024.03.04
18:45:59 +0530
Kumari Mayuri Prakash Warekar ... Petitioner
V/s.
The State of Maharashtra & Ors. ... Respondents
WITH
WRIT PETITION NO.1060 OF 2024
Nisha Pritam Sawant ... Petitioner
V/s.
The State of Maharashtra & Ors. ... Respondents
Mr. Vishal Chandrakant Ghosalkar for the petitioner.
Ms. V. S. Nimbalkar, AGP for the State/respondent No.1
in WP/1058/2024.
Ms. M. S. Srivastava, AGP for the State/respondent
No.1 in WP/1060/2024.
Mr. Rohit Sakhadeo for respondent Nos.2 & 3.
CORAM : AMIT BORKAR, J.
DATED : MARCH 4, 2024
P.C.:
1. Since both the writ petitions involved common question of
law and fact, both are being decided by common judgment.
2. The petitioners in both the writ petitions are elected Gram
Panchayat members. Respondent No.2 issued notice to the
petitioners contending that the Petitioner-Mayuri Warekar remain
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absent without permission for period April 2022 till March 2023.
According to respondent No.2, petitioner-Nisha Sawant was absent
for 18 monthly meetings and petitioner Mayuri Warekar was
absent from 12 monthly meetings.
3. Respondent No.2 fixed the hearing of disqualification
proceedings on 23rd October 2023. On a request made by the
petitioners to submit a reply, respondent No.2 fixed the hearing on
30th October 2023. On 30th October 2023, petitioner-Mayuri
Warekar was present. In relation to petitioner-Nisha Sawant her
representative was present on 30th October 2023.
4. According to the petitioners, on 30 th October 2023, both the
petitioners filed application for adjournment seeking time to file
reply. The respondent No.2, on 31st October 2023, passed the order
holding that the posts of the petitioners become vacant. The
respondent No.2, in paragraph No.8, in relation to petitioner Nisha
Sawant referred to the request made on behalf of the petitioners to
grant one month's time to get relevant documents. However,
relying on section 40(2) of the Maharashtra Village Panchayat Act,
1959, the respondent No.2 held that statute requires respondent
No.2 to adjudicate on disqualification proceedings within 60 days
and, therefore, passed the orders of disqualification of the
petitioners.
5. The respondent No.2 has filed affidavit stating that
petitioner-Nisha Sawant was represented by her authorised
representative and in case of petitioner-Nisha Sawant, her
representative was present on 30th October 2023.
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6. The fact remains that in both matters, the petitioners filed an
application seeking adjournment.
7. The respondent No.2 based on period prescribed in section
40(2) of the Maharashtra Village Panchayat Act, 1959, decided the
matters immediately on next day i.e. 31st October 2023. The outer
limit prescribed in the statute serves as guidance to the statutory
authorities. Such outer limit cannot be termed as mandatory so as
to render proceedings conducted have expiry of such proceedings
illegal. Such prescription provided under a statute needs to be
followed by the authorities, however, not at the cost of breach of
opportunity of hearing to the elected candidate. The earlier date
prescribed was of 23rd October 2023 and immediately thereafter
matter was fixed on 30th October 2023. The proper course for
respondent No.2 in such matter was to grant adjournment to the
elected representative as a last chance and on failure of such
elected candidates or if the authorities are of the opinion that the
elected candidates are protracting the proceedings with a view to
avoid the unavoidable consequences the authority is free to pass
final orders. The statutory authorities are expected to grant last
chance to the elected representative with clear understanding that
in case of their failure to file reply, the endeavour shall be made to
decide the proceedings on merit in accordance with law on the
next date.
8. According to learned advocate for respondent No.2, written
submissions were filed by the petitioners. However, it is well
settled that written submissions cannot substitute oral opportunity
of hearing to be granted to elected representative unless such
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elected representative categorically states that he does not want to
make oral submissions and he relies on written submissions.
9. In the facts of the case, instead of granting opportunity to
the petitioners to file their reply, the respondent No.2 immediately
on the next day i.e. 31st October 2023 passed orders of
disqualification of the petitioners. Therefore, in my opinion,
adequate opportunity of hearing was not granted to the
petitioners. Such opportunity is necessary as the petitioners are
elected representative representing the electorate. Disqualifying
such elected representative has a drastic consequence of electorate
remaining unrepresented. This does not mean that attempts made
by elected representative to protract disqualification proceeding
should not be dealt with in stern hand. It is expected that the
authorities shall conduct themselves being alive to the rights of
elected representative.
10. Therefore, in the facts of the case, I am satisfied that decision
by the respondent No.2 on 31 st October 2023 (immediately on the
next day) was in breach of principles of natural justice. Hence,
following order:
a) The impugned orders passed by the respondent No.2,
confirmed by respondent No.4 are quashed and set aside.
b) Both the petitioners shall appear before respondent
No.2 on 11th March 2024 at 10:30 a.m.
c) The petitioners shall file their reply before 18th March
2024.
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d) The respondent No.2 shall decide the applications
within four weeks from 11th March 2024.
11. The writ petitions stand disposed of in above terms. No
costs.
(AMIT BORKAR, J.)
