HC: [Maharashtra Village Panchayats Act] Section 39(1) specifically prohibits removal from the office of Sarpanch unless certain pre-conditions are strictly complied with [Read Judgment]

23 Mar 2022

By : Ayesha

The Single Bench of the Bombay High Court consisting of Justice Smt. Anuja Prabhudessai opined that the provisions contained in Section 39 of the Maharashtra Village Panchayats Act, 1959 (“the said Act”) are mandatory in nature. The same is in negative form, which specifically prohibits removal of a person from the office of Sarpanch unless certain pre-conditions are strictly complied with.

Facts

The Petitioner is a duly elected Sarpanch of the Gram Panchayat Tekadi (Coal-Mine), Parseoni, Nagpur. She was elected from Scheduled Caste category by direct election process for a term of five years, which is due to expire in 2022. In view of complaint received from some of the members, Respondent No.3 (C.E.O.) directed the Respondent No.4 (B.D.O.) to conduct an enquiry. Pursuant to the preliminary report submitted by the B.D.O., Respondent No.3 allegedly conducted an enquiry u/s 39(1) of the said Act with permission of Respondent No.2. The Respondent No.2 removed the Petitioner from the office of Sarpanch acting upon the report submitted by Respondent No.3. The Respondent No.1 (Hon’ble Minister) dismissed the appeal filed by the Petitioner u/s 39(3) of the said Act. Hence, the Petition.

Contentions Made

Appellant: Respondent No.3 had not conducted enquiry u/s 39(1) of the said Act. The C.E.O. has based the findings on the preliminary enquiry report submitted by the B.D.O. The impugned order is passed in contravention of Section 39(1) of the said Act. Reliance is placed on Shalik s/o Bolan Dahiwale Vs. State of Maharashtra & Ors and Nimba Yadav Bhoi Vs. President, Standing Committee, Zilla Parishad, Jalgaon & Ors. The impugned order being patently illegal, is liable to be set aside.

Respondent: C.E.O. has conducted an independent enquiry as contemplated under Section 39(1) of the said Act and has considered all the documents and records while arriving at the finding. Mere reference to the preliminary enquiry report would not vitiate the enquiry. Reliance is placed on Omprakash Tapadiya Vs. Ashok s/o Dadarao Thakare & Ors.

Observations of the Court

The Bench referred to various judgments by the Apex Court and observed that:

“A perusal of the enquiry report submitted by Respondent No.3 – C.E.O. clearly indicates that he had not conducted an independent enquiry as envisaged by Section 39(1) of the said Act. On the contrary, the report reveals that Respondent No.3 – C.E.O. had only endorsed the findings recorded in the fact-finding enquiry, without affording opportunity of fair hearing and without recording subjective satisfaction with independent application of mind…In the instant case, the order has been passed in flagrant violation of the mandatory provision and this vitiates the proceedings u/s 39(1) and renders the order null and void.”

Judgment

The following order was passed: -