Bombay High Court
Alpana Ganesh Patil vs Block Development Officer Panchaytat ... on 9 January, 2025
Author: A. S. Gadkari
Bench: A. S. Gadkari
2025:BHC-AS:2767
osk 26-aswp-5959-2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.5959 OF 2023
Mrs. Alpana Ganesh Patil ]
Age: 36 years, Occupation: Gramsevak, ]
Office at Pam, Post Navapur, ]
Pin Code- 401501. ] ... Petitioner
V/s.
1) Block Development Officer ]
Panchayat Samiti - Palghar, ]
District - Palghar. ]
]
2) Chief Executive Officer, ]
Jilha Parishad Karyalay, ]
Kolegaon, Palghar. ]
]
3) The Commissioner ]
Kokan Bhavan, C.B.D.-Belapur, ]
Navi Mumbai. ]
]
4) Prabhakar Bhalchandra Pimple ]
Age: 68 years, Occupation: Agriculturist, ]
Residing at Beside Pam High School, ]
Post: Navapur, ]
Pin code: 401501. ]
]
5) Chintaman Hirji Patil ]
Age: Adult, Occupation Building construction/ ]
Builder, Residing at 703, Near Leela Durga Fire ]
Brigade Office, Link Road, Borivali (West), ]
Mumbai, Pin code : 400091. ]
]
6) The State of Maharashtra ] ... Respondents
Ms. Yogita Deshmukh-Chitnis for the Petitioner.
Mr. Raj Kamble a/w Mr. Prashant Dahat and Mr. Divesh Mehani for
Respondent Nos.1 & 2.
Ms. M.P. Thakur, AGP, for Respondent Nos.3 & 6-State.
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osk 26-aswp-5959-2023.doc
CORAM : A. S. GADKARI AND
KAMAL KHATA, JJ.
DATE : 9th January 2025.
JUDGMENT ( Per : A. S. Gadkari, J. ) :
-
1) By the present Petition under Article 226 of the Constitution of
India, the Petitioner has impugned Judgment and Order dated 11 th April 2023
passed by learned Divisional Commissioner, Konkan Bhavan, Navi Mumbai.
By the impugned judgment dated 11th April 2023, the Divisional
Commissioner, Konkan Division, has directed that, apart from the Sarpanch of
the said village, an offence be registered against the Petitioner for her act of
forgery in the original record of the Grampanchayat Pam, Taluka and District
Palghar, i.e. Government record. The said direction is in paragraph No.1 of
the operative part of impugned Judgment and Order.
2) Heard Ms. Chitnis, learned Advocate for the Petitioner, Mr.
Kamble, learned Advocate appearing for Respondent Nos.1 & 2 and Ms.
Thakur, learned A.G.P. for Respondent Nos.3 & 6. Perused entire record.
3) The record indicates that, a complaint was filed by Respondent
No.5 against the Respondent No.4 under Section 39(1) of The Maharashtra
Village Panchayats Act, 1959 (for short, 'said Act'). During the course of
enquiry, the Divisional Commissioner, Kokan Division, Navi Mumbai found
that, the Petitioner, a Gramsevika of village Pam, Taluka and District Palghar
osk 26-aswp-5959-2023.doc
had indulged into an act of forgery and/or tampering with the Government
record and therefore by its impugned Judgment and Order has directed that,
a crime be registered against the Petitioner being Gramsevak and Sarpanch of
the said village.
4) Ms. Chitnis, learned Advocate appearing for the Petitioner
strenuously argued that, in an inquiry or proceeding under Section 39(1) of
the said Act, the Divisional Commissioner has no authority or right to direct
lodgment of crime and investigation against the Petitioner who was and is
neither member, Sarpanch or Upa-sarpanch of the said village panchayat.
That, under Section 39 of the said Act only the member, Sarpanch or Upa-
sarpanch of a concerned Grampanchayat can be removed and/or action can
be initiated against them, if the necessary mandate of the law is complied
with. That, as the Petitioner was merely an employee of the Government she
cannot be prosecuted under the said Section. She submitted that, the
Petitioner has been exonerated in departmental inquiry by the same Officer
and therefore also she is not liable to face prosecution for her alleged act of
forgery in the Government records. She therefore submitted that, the
directions issued by the Divisional Commissioner in the impugned judgment
at paragraph No.1 may be quashed and set aside.
5) Perusal of record indicates that, there is supporting and
corroborative material before the Divisional Commissioner while arriving at
the conclusion that the Petitioner prima-facie indulged into the act of forgery
osk 26-aswp-5959-2023.doc
of Government record. For this precise reason, the Divisional Commissioner
has directed the concerned Officer to lodge a crime against the Petitioner.
6) The contention of Petitioner's Advocate that, the State is
supporting her; that, no forgery at all is committed or disclosed on the
perusal of record and other relevant arguments, is the probable defence of the
Petitioner before the Court, if after investigation Police chooses to file a
chargesheet, as contemplated under Section 173(2) of the Cr.P.C..
7) According to us, at this stage there is no reason to disbelieve the
findings recorded by a very responsible Government Officer of the rank of a
Divisional Commissioner, who after scrutinizing the entire material on record,
has recorded a finding that, the Petitioner has indulged into the act of forgery
and/or tampering with the Government record.
8) The argument that the Petitioner cannot be removed and/or
prosecuted in an inquiry under Section 39 of the said Act, is not appealable to
us. It is for the simple reason that, during the course of the inquiry of the
said complaint lodged by Respondent No.5 against Respondent No.4, the
Divisional Commissioner noticed the fact that, the Petitioner has indulged
into the act of forgery and/or tampering with the Government record.
9) In the Affidavit-in-reply on behalf of Respondent Nos.1 and 2,
dated 5th October 2023, Mr. Narendra S. Revandkar, the Block Development
Officer of Palghar Zilla Parishad has made a categorical statement in
paragraph No.23 that on 6th September 2022, the Petitioner gave a response
osk 26-aswp-5959-2023.doc
to the Chief Executive Officer of the Zilla Parishad. In the said letter, in the
last line the Petitioner categorically accepted her 'mistake' and apologized for
the same. It is clearly indicative of the fact that the Petitioner accepted her
mistake and asked for apology for irregularities committed by her. Thus, it
prima-facie reinforces the findings recorded by the Divisional Commissioner
directing lodging of crime against the Petitioner.
10) The contentions raised by the learned Advocate for Petitioner
undoubtedly gives rise to the disputed question of facts. The learned
Advocate for Petitioner inter-alia is calling upon this Court to adjudicate
innocence of the Petitioner, if the Police files chargesheet against her, which
cannot be done in our jurisdiction under Article 226 of the Constitution of
India. The contention of the learned Advocate for the Petitioner that, the
Petitioner is innocent and has not indulged into the act of forgery has to be
firstly ascertained by the concerned Investigating Agency and not by this
Court under Article 226 of the Constitution of India.
10.1) It is the settled position of law that, the probable defense of an
accused cannot be tested in our jurisdiction under Article 226 of the
Constitution of India.
11) In view of the above, we find no merits in the Petition and is
accordingly dismissed.
(KAMAL KHATA, J.) (A.S. GADKARI, J.)
OMKAR SHIVAHAR
SHIVAHAR KUMBHAKARN
KUMBHAKARN Date:
2025.01.21
17:30:22 +0530
