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2011 DIGILAW 109 (BOM)

Ujwala Anil Thakare v. State of Maharashtra

2011-01-27

B.P.DHARMADHIKARI

body2011
JUDGMENT : 1. In order dated 27.10.2010, this Court has already cautioned the parties that Petition is to be disposed of finally at the admission stage. Accordingly, I have heard Advocate Mr. Hon with Advocate Mr. Sawant for petitioners and Advocate Kulkarni for respondent no.6, A.G.P. for respondent nos. 1, 2, 4 and 5 and Advocate Mr. Bagul for respondent no.3. 2. In this Petition filed under Article 226 and 227 of the Constitution of India, three petitioners who have been elected in the year 2007 as members of the Gram Panchayat, Morane have questioned the order dated 15th October, 2010 passed by the respondent no.2 directing dissolution of Gram Panchayat, Morane under the provisions of Section 145 of the Bombay Village Panchayats Act, 1958. The direction has been stayed by this Court on 27.10.2010 itself by directing the parties to maintain status-quo. 3. The petitioner no.1 is Sarpanch of that Gram Panchayat elected against the post reserved for O.B.C. (woman). A motion of no confidence was moved against her by 12 members and accordingly, a meeting was convened on 07.07.2009. Said motion failed at about 4 `O' clock in the evening and at 4.20 p.m., 11 members tendered their resignations. The present petitioners and one more member continued to occupy their seats. Intervening events in which some of the resigned members attempted to withdraw the said resignation are not relevant at this stage. 4. In this background, Advocate Mr. Hon states that in view of this resignation and in the light of provisions of Section 145 of the Bombay Village Panchayats Act, 1958, the report was called for from Chief Executive Officer and vide his report dated 26.11.2009, the Chief Executive Officer communicated that dissolution of Gram Panchayat was not warranted and hence, possibility of filing in the vacant seats should be examined. Thereafter, Gram Panchayat continued to function with petitioners and other three members for about 9 to 10 months and then a second report was received and as per that report, the dissolution of Gram Panchayat was recommended. A show-cause notice was then served upon these petitioners and they submitted their reply in the detail as contemplated by Section 145(1)-A of the Bombay Village Panchayats Act. In that reply they gave instances of how the interest of Gram Panchayat and public at large has been safeguarded and protected by them during this period. A show-cause notice was then served upon these petitioners and they submitted their reply in the detail as contemplated by Section 145(1)-A of the Bombay Village Panchayats Act. In that reply they gave instances of how the interest of Gram Panchayat and public at large has been safeguarded and protected by them during this period. They also relied upon certain precedents to urge that dissolution was not a solution in such situation and the vacant seats should be filled in by holding by-elections. The Divisional Commissioner gave opportunity of hearing to the petitioners and thereafter by impugned order dated 15th October, 2010 directed dissolution. 5. According to learned Counsel only reasons given are in paragraph no.20 and those reasons do not show any objective consideration of objections raised. Most of the facts pressed into service to show stability with which the Gram Panchayat was functioning, and therefore, necessity of holding only by-elections have been overlooked. He with reference to those precedents urges that the provisions of said Section are found to be only directory and decision needs to be taken after finding out functioning of Gram Panchayat i.e. its stability. He has invited attention to documents produced on record along with Writ Petition to show how the tax recovery during regime of petitioner no.3 as Sarpanch improved. He also contended that only because of the tax demands served on elected members demanding huge arrears, they resorted to step of no confidence motion. According to learned counsel there is non-application of mind and hence impugned order is unsustainable. 6. Advocate Shri Kulkarni appearing for respondent no.6 has supported the impugned orders. He invited attention to the communication dated 26.11.2009 sent by Chief Executive Officer to urge that it does not recommend any specific and concrete steps. As it was found general in nature, a fresh and self explanatory report was called for on 28.11.2009 and that report was later on furnished by respondent no.3 on 21.08.2010 after reminder issued to the respondent no.2 on 22.12.2009. 7. He points out that when out of total 15 members, 11 members have resigned, there is no coram even to conduct meeting and hence there can not be any stability. He has also invited attention to paragraph no.19 of the judgment reported at "2003(2) Bom. 7. He points out that when out of total 15 members, 11 members have resigned, there is no coram even to conduct meeting and hence there can not be any stability. He has also invited attention to paragraph no.19 of the judgment reported at "2003(2) Bom. C.R. 821" (Kavita Sakharam Chavan & others V/s Commissioner, Konkan Division and others) to urge that the said judgment also lays down the mode and manner in which situation is to be approached. He points out that Division Bench has held that when the majority of the seats fall vacant, it is better to go for dissolution of Panchayat and to hold re-elections for entire seats. He invites attention to the impugned order to urge that after considering the entire material, this principle is also adopted by respondent no.2 here. There is no jurisdictional error or perversity and therefore, this Court should not interfere in the matter. 8. Advocate Mr. Bagul for respondent no.3 and learned A.G.P. have also adopted the same line. Learned A.G.P. states that necessary opportunity of hearing was made available to the petitioners and thereafter, the reasoned order is passed. 9. It is not in dispute, the provisions of Section 145 of the Bombay Village Panchayats Act are directory. It is also not in dispute that appropriate decision thereunder is required to be reached by the respondent no.2-Divisional Commissioner. The decision needs to be reached in the light of the law laid down by this Court. In the case of Kavita Sakharam Chavan (supra) relied upon by the petitioner, Division Bench of this Court has found the provisions directory. The Division Bench has found that in facts before it, when no confidence motion was moved against the petitioner-Sarpanch and it was defeated because of failure to obtain requisite majority, the situation was exceptional. Discretion was therefore found with State Government in the matter and the Division Bench has stated that it is not in all cases that majority of seats fail vacant, Government can straightway dissolve a Panchayat. In the process as pointed out by Advocate Mr. Kulkarni observations that holding of general elections in case of such vacancies is beneficial appears. However, sentence relied upon can not be read in isolation and torn out of context. 10. In the process as pointed out by Advocate Mr. Kulkarni observations that holding of general elections in case of such vacancies is beneficial appears. However, sentence relied upon can not be read in isolation and torn out of context. 10. In " 2007(5) Mh.L.J. 109 " ( Shivaji Maruti Shingate and others V/s State of Maharashtra and others), a Division Bench has found that discretion under Section 145 must be exercised so as to make Panchayat workable and functionable. The arguments of petitioners before this Court were not accepted after noticing that if resignations are for any reason whatsoever, in that event, the State Government would have no option but to exercise powers of dissolution. Division Bench observed that such conclusion would not further either democratic process and constitutional mandate whereby the object to allow large amount of freedom to Panchayat in process of development at local level has been promoted. Stability and certainty in elected body is found desirable and it is made clear that the State Government is not bound to dissolve the Panchayat unless the situation has arisen where the function of Panchayat will not be possible except by dissolution and by holding fresh elections. Subsequent, Division Bench in " 2008 (3) Mh.L.J. 437 " ( Jahangir Yusuf Qureshi and others V/s State of Maharashtra and others) after noticing these two judgments have made same observations. In paragraph no.11, the said Division Bench has found that the provision is directory and not mandatory and administrative action would not be warranted. 11. Here gap of about 10 months between two reports of the respondent no.3-Chief Executive Officer is not in dispute. Whether, the first communication dated 26.11.2009 is to be called as report or not, is not a very relevant issue at this stage. Facts show that after resignation by 11 members, Gram Panchayat continued to function and after so called self explanatory report was called, show-cause notice was issued to petitioners for the first time on 16th September, 2010. Thus, after no confidence motion was defeated on 07.07.2009, the steps in direction of dissolution have been initiated after more than 14 months. 12. Facts show that after resignation by 11 members, Gram Panchayat continued to function and after so called self explanatory report was called, show-cause notice was issued to petitioners for the first time on 16th September, 2010. Thus, after no confidence motion was defeated on 07.07.2009, the steps in direction of dissolution have been initiated after more than 14 months. 12. In the light of precedents considered above, it is apparent that if dissolution is to be ordered, the respondent no.2-Divisional Commissioner should have placed on record material to indicate that during this period of 14 months Gram Panchayat did not function or could not function. The impugned order does not make reference to a single instance to indicate this. In challenge to that order though the respondent no.6 has appeared as intervenor, the respondent no.6 also has not pointed out to this Court any such instance. 13. Not only this whatever material petitioners produced before the respondent no.2 to show that they were functioning smoothly and Gram Panchayat had improved its financial condition considerably, are not even looked into. Refusal or failure on the part of the respondent no.2 to exercise jurisdiction available to him according to law is therefore apparent. Decision either to dissolve or not to dissolve rests with the respondent no.2 but then that decision is required to be reached after considering the material relevant for said purpose produced by either parties. Here material produced by the petitioners and having bearing on said issue has not been even looked into by respondent no.2. 13. Only reason given by respondent no.2 is the time and revenue required for holding elections to fill in 2/3rd vacant seats or holding elections to fill in all seats is same. This can not be the reason in the eye of law at all. This reason can be applied in all cases in which Divisional Commissioner may be called upon to pass orders under Section 145. The reasons must have some link with facts pleaded by parties and thereafter, the impact of said fact in the light of particular legal provisions needs to be evaluated. Such application of mind and thought process appears to be lacking in impugned order. The said reason is not sufficient to show that there was no stability in the administration. 14. The reasons must have some link with facts pleaded by parties and thereafter, the impact of said fact in the light of particular legal provisions needs to be evaluated. Such application of mind and thought process appears to be lacking in impugned order. The said reason is not sufficient to show that there was no stability in the administration. 14. Attention of this Court is also invited to the circular dated 15th June, 1996 issued by the State Election Commission which again points out that in many cases after failure of no confidence move, such resignations are resorted to. This circular also does not find any consideration in the impugned order. 15. The reservation for woman has been provided for in fulfillment of constitutional mandate. The seat occupied by petitioner no.1 is not only reserved for woman but it is also reserved for O.B.C. category. The facts show that in less than half an hours after their no confidence motion failed, 11 members have tendered their resignation. The respondent no.2 as a responsible Government Officer therefore has to balance the said reservation provided for woman and its purpose with the resignations tendered. Application of mind to all these aspects thereafter has to demonstrate as to how the dissolution of Gram Panchayat is the only viable solution. 16. As I find the impugned order fails to consider all these aspects and put forth a reason which in eye of law can not be read as such at least in the present facts. Hence, impugned order dated 15.10.2010 is hereby quashed and set aside. Writ Petition is accordingly allowed. Rule made absolute accordingly. However, in the facts and circumstances of the case, there shall no order as to costs.