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2011 DIGILAW 1556 (BOM)

Sumit Sanjay Jaiswal v. The State of Maharashtra

2011-12-20

S.S.SHINDE

body2011
JUDGMENT: 1. Rule. Rule made returnable forthwith. With consent of the parties heard finally. 2. Both the writ petitions take exception to the judgment and order dated 30-03-2011 passed by the Additional Divisional Commissioner, Nashik Division, Nashik in Grampanchayat Appeal Nos.6 of 2011 and 5 of 2011 respectively in Writ Petition Nos. 3323 of 2011 and 3325 of 2011. 3. By the impugned judgment and order, the appellate authority has confirmed the order passed by the Additional Collector, Dhule thereby allowing the application filed by respondent No. 3 herein, and the petitioners herein are disqualified as a Members of the Grampanchayat Ner under the provisions of Section 14 (h1) of the Bombay Village Panchayats Act, 1958 (for short, "said Act"). 4. The background facts of the case are as under: It is the case of the petitioners that, in the month of July, 2010, election for Ner Village Panchayat was conducted in which the petitioner Sumit filled in nomination form from Ward No.6, reserved for backward class and the petitioner Shital filled in nomination from Ward No.4, reserved for backward class women. In the said election, both the petitioners were declared as successful returned candidates. It is the case of the petitioners that, respondent No. 3 who is a political rival of the petitioners, having grudge and feeling jealous about the success of the petitioners on the vague ground, respondent No. 3 filed Village Dispute Nos. 23 of 2010 and 22 of 2010 before the Additional Collector, Dhule with prayer of disqualification of the petitioners. 5. The two fold contentions were raised in the said Disputes. Firstly, the petitioners are the members of joint Hindu family and the members of petitioners' joint family have encroached on the abutting land on the public road owned by the joint Hindu family. Secondly, father of the petitioner Sumit and father in law of the petitioner Shital, was Sarpanch of Grampanchayat, Ner for the period of 1989 to 1999 and during that period, he misappropriated the amount and for that purpose, even offence is registered against him. It is alleged that, Sanjay-father of petitioner Sumit, and father in law of petitioner Shital has not paid Government dues and hence, the petitioners have incurred disqualification as per the provisions of Section 14(j) (3) and (4) of the said Act. 6. It is alleged that, Sanjay-father of petitioner Sumit, and father in law of petitioner Shital has not paid Government dues and hence, the petitioners have incurred disqualification as per the provisions of Section 14(j) (3) and (4) of the said Act. 6. The case of the petitioners before the Additional Collector was that, before filling in nomination forms, the entire encroachment was removed. Not only that, on the basis of Tahsildar's report dated 12-04-2010 respondent is claiming that the petitioners' family has encroached on the public road, said order is stayed by the Hon'ble High Court in Writ Petition No. 6092 of 2010. Said order was placed on record by the petitioners before the Additional Collector who was seized with the Village Dispute Nos. 23 of 2010 and 22 of 2010. 7. The petitioners also stated before the Additional Collector that, there are only allegations against father and father in law of petitioner Sumit and petitioner Shital, respectively and no charges are yet proved against him. It was also pointed out that, both the petitioners are staying separately and they are not staying with the family. 8. It is the case of the petitioners that, the Additional Collector refused to disqualify the petitioners on the ground of encroachment, since in that respect, writ petition is pending before the Hon'ble High Court. It is the case of the petitioners that, there was some communication from Block Development Officer, Panchayat Samiti, Dhule dated 02-08-2008 to Sanjay Durgadin Jaiswal, who is father of petitioner Sumit and father in law of petitioner Shital, directing him to deposit 50% of the amount as against alleged misappropriation by him during period in which he was holding the post of Sarpanch for Grampanchayat, Ner. It is the case of the petitioners that, the order passed by the Additional Collector disqualifying the petitioners by invoking the provisions of Section 14 (h1) of the said Act, is ex facie illegal and same order cannot be sustained. The petitioners cannot be held responsible or cannot be asked to deposit 50% of the amount, as against the alleged misappropriation by the father and father in law of the petitioner Sumit and Shital respectively. 9. It is the case of the petitioners that, petitioners Sumit and Shital preferred Grampanchayat Appeal Nos. 6 of 2007 and 5 of 2007 respectively before the Additional Divisional Commissioner, Nashik Division, Nashik. 9. It is the case of the petitioners that, petitioners Sumit and Shital preferred Grampanchayat Appeal Nos. 6 of 2007 and 5 of 2007 respectively before the Additional Divisional Commissioner, Nashik Division, Nashik. However, without appreciating the contentions of the petitioners, the appellate authority has upheld the judgment and order passed by the Additional Collector, Dhule. Hence both these writ petitions. 10. Learned Counsel for the petitioners would submit that, the provisions of Section 14 (h1) of the said Act can be invoked only when there is a failure to pay the amount of surcharge or charge under Section 140 or the amount ordered to be paid under Section 178 together with interest, if any, within the period provided in that behalf. However, in the present case, there is no question of fastening any liability on the petitioners by invoking either provisions of Section 140 or 178 of the said Act and holding the petitioners disqualified under Section 14 (h1) of the said Act. He further submits that, both the authorities have not applied their mind to the facts of the case and also misread and misinterpreted the provisions of Section 140 and 178 of the Bombay Village Panchayats Act, 1958 and wrongly disqualified the petitioners as members of the Grampanchayat. Therefore, according to the Counsel for the petitioners, writ petitions deserve to be allowed. 11. On the other hand, learned A.G.P. for respondent Nos. 1 to 3 and learned Counsel for respondent No.4 would submit that, the Additional Collector and also the appellate authority have properly considered the relevant provisions. They have rightly concluded that, the petitioners were told to deposit 50% of the amount of alleged misappropriation by their father and father in law. However, since the said amount was not deposited, they have incurred disqualification under Section 14 (h1) of the said Act and the authorities have rightly disqualified the petitioners as members of the Grampanchayat under the provisions of Section 14 (h1) of the said Act. The Counsel for respondent No. 4 would submit that, the revision is maintainable before the State Government and therefore, the writ petitions may not be entertained. 12. I have given anxious consideration to the rival submissions. Perused the averments in the writ petitions, annexures thereto, and relevant provisions of the Bombay Village Panchayats Act, 1958. It appears that, the original complainant, Grampanchayat Dispute Nos. 12. I have given anxious consideration to the rival submissions. Perused the averments in the writ petitions, annexures thereto, and relevant provisions of the Bombay Village Panchayats Act, 1958. It appears that, the original complainant, Grampanchayat Dispute Nos. 23 of 2010 and 22 of 2010 is mainly on two fold contentions. Firstly, there is encroachment made by the members of the joint family of the petitioners on the public road abutting their residential house. Therefore, they are not entitled to be continued as a members of the Grampanchayat. It is not in dispute that, in this respect, the W.P. No. 6092 of 2010 is filed by the petitioners and in the said writ petition, Division Bench of this Court has stayed the order of the Tahsildar dated 12-04-2010 thereby staying the effect of the said report which concludes that, there is encroachment by the petitioners' family on public road. Therefore, in that respect, the Additional Collector, Dhule and also the appellate authority have not passed any order. The second contention which is raised in the said Grampanchayat Disputes that, father of petitioner Sumit and father in law of petitioner Shital, when he was Sarpanch of Grampanchayat, Ner for the period 1989 to 1999, as per audit report, there is misappropriation of Rs.3,93,886/and further there appears to be suspicious misappropriation of Rs.3,77,450/. In spite of specific demand of the said misappropriated amount by the Block Development Officer, Panchayat Samiti, Dhule from the father of petitioner Sumit and father in law of the petitioner Shital, and the petitioners are the members of the joint Hindu Family and therefore, they should be declared disqualified under Section 14 (h1) of the said Act. At this juncture, it would be appropriate to refer the provisions of Section 140 of the Bombay Village Panchayats Act, 1958. Sub section (1) and (5) of Section 140 of the said Act reads thus: "(1) The audit of the accounts of a panchayat shall be carried out by such authority and in such manner as may be prescribed and a copy of the audit note shall be forwarded to Chief Executive Officer, the Panchayat Samiti and the Panchayat within two months of the completion of the audit. (5) The Chief Executive Officer may, after considering the report of the Panchayat Samiti and after making such further inquiry as he considers necessary, disallow any item which appears to him contrary to law and surcharge the same on the person making or authorizing the making of the illegal payment and may charge against person responsible therefore the amount of any deficiency or loss caused by the gross negligence or misconduct of that person, or any sum received which ought to have been, but is not, brought into account by that person; and may after taking explanation of such persons, direct by order in writing that such person shall pay to the panchayat the amount surcharge or charged and where the Chief Executive Officer considers it necessary, also an interest on the amount so surcharged at such rate as may be determined by him. If the amount or interest directed to be paid by the Chief Executive Officer under his order is not paid by the aforesaid within one month from the date of receipt of such order by him, the Chief Executive Officer shall request the Collector to recover it as an arrears of land revenue and credit it to the village fund, and thereupon the Collector shall be bound to do so." 13. Plain reading of the provisions of Section 140 of the said Act would make it clear that, audit of the accounts of a panchayat shall be carried out by the authority as prescribed under the said Act. On receipt of the audit note, the panchayat is required to either remedy any defects or irregularities which may have been pointed in the audit note and send to the Panchayat Samiti within three months. Panchayat Samiti in turn, accept such intimation or explanation of the panchayat and recommend the Chief Executive Officer to drop the objection or suggest that the matter be reinvestigated at the next audit or at any earlier date or hold that the defects or irregularities pointed out in the audit note or any of them have not been removed or remedied. Sub section (4) of Section 140 of the said Act contemplates that, the Panchayat Samiti shall send a report of its decision to the Chief Executive Officer within one month of the date of receipt by it of the intimation or explanation referred to in sub section (2), or in the event of the panchayat failing to give such intimation or explanation on the expiry of the period of three months referred to in the said sub section (2) or in the event of the Panchayat failing to give such intimation or explanation on the expiry of the period of three months referred to sub section (2). In the present case, sub section (5) of Section 140 of the said Act is material. In the present case, the allegation of the alleged misappropriation of the panchayat funds is against the father and father in law of the petitioner Sumit and petitioner Shital respectively. There is allegation of alleged misappropriation is for the period 1989 to 1999. It is admitted position that, the offence is registered in that respect. The law will take its own course and after investigation, if the father and father in law of the petitioners Sumit and Shital, is responsible, necessary consequences will follow. However, to fasten the liability of the alleged misappropriation for the period 1989 to 1999 on the present petitioners though they are not directly responsible, cannot be countenanced. If the father of the petitioner Sumit and father in law of the petitioner Shital is responsible for the alleged misappropriation of the funds, he may face consequences. The view taken by the authorities and recourse to Section 140 of the said Act qua present petitioners cannot be sustained. It is also relevant to mention that, how the said petitioner Sumit and petitioner Shital are the members of the joint Hindu family, is also not discussed by the authorities below. It was incumbent upon the authorities to discuss the said issue in detail since the specific contention was raised by the petitioners herein that, they are staying separately and not in the joint family. 14. The Additional Collector, Dhule and also the appellate authority has also taken recourse to the provisions of Section 178 of the said Act. The provisions of Section 178 of the said Act reads thus: "178. 14. The Additional Collector, Dhule and also the appellate authority has also taken recourse to the provisions of Section 178 of the said Act. The provisions of Section 178 of the said Act reads thus: "178. (1) Every member of panchayat shall be personally liable for the loss, waste or misapplication of any money or other property of the panchayat to which he has been party or which has been caused or facilitated by his misconduct or gross neglect of his duty as a member. (2) If after giving the member concerned a reasonable opportunity for showing cause to the contrary, the Collector is satisfied that the loss, waste or misapplication of any money or other property of the panchayat is a direct consequence of misconduct or gross neglect on his part, the Collector shall by order in writing direct such member to pay to the panchayat before a fixed date, the amount required to reimburse it for such loss, waste or misapplication. (3) If the amount is not so paid, the Collector shall recover it as an arrear of land revenue and credit it to the village fund. (4) Any person aggrieved by the decision of the Collector may apply to the District Court as provided in sub section (6) of Section 140, within the like time for redress of his grievance, and that Court may pass any order thereon which it can pass under that section." 15. Bare perusal of sub section (1) of Section 178 of the said Act would make it abundantly clear that, every member of panchayat shall be personally liable for the loss, waste or misappropriation of any money or other property of the panchayat to which he has been party or which has been caused or facilitated by his misconduct or gross neglect of his duty as a member. Therefore, if the authorities are of the opinion, that Sanjay, father of the petitioner Sumit and father in law of petitioner Shital is responsible for the alleged misappropriation for the period 1989 to 1999 when at the relevant time, he was Sarpanch, the authorities can very well proceed against him and take appropriate steps in accordance with law. Therefore, if the authorities are of the opinion, that Sanjay, father of the petitioner Sumit and father in law of petitioner Shital is responsible for the alleged misappropriation for the period 1989 to 1999 when at the relevant time, he was Sarpanch, the authorities can very well proceed against him and take appropriate steps in accordance with law. However, to disqualify the petitioners in both the writ petitions on the ground that, the offence is registered against Sanjay, father of the petitioner Sumit and father in law of petitioner Shital for alleged misappropriation for the period 1989 to 1999, when the said Sanjay was Sarpanch and the petitioners have not paid 50% of the amount as demanded by the Block Development Officer and therefore, to hold that they are liable to be disqualified as members of the Grampanchayat, would be misinterpreting and misreading provisions of the said Act. 16. I find considerable substance in the arguments of the Counsel for the petitioner that, if the member of the joint Hindu family commits any default in payment of tax to be levied by the panchayat or any lawful dues to be recovered by the panchayat, in that case, appropriate proceedings can be taken against such defaulter member of the family under the provisions of the said Act. However, in the instant case, the petitioners herein are not responsible for the alleged misappropriation by the father and father in law of petitioners Sumit and Shital respectively, that too for the period 1989 to 1999 when he was Sarpanch of the village. The provisions of Section 14 (h1) of the said Act reads thus: "14. (1) No person shall be a member of a panchayat continue as such, who (h1) fails to pay the amount of surcharge or charge under section 140 or the amount ordered to be paid under section 178 together with interest, if any, within the period provided in their behalf, and where an appeal has been made, then within one month from the date of receipt of the decision rejecting such appeal." 17. Therefore, bare reading of the provisions of sub section (h1) of Section 14 of the said Act would make it clear that, the member of the panchayat can be disqualified in case he fails to pay the amount of surcharge or charge under section 140 or the amount ordered to be paid under section 178 together with interest, if any, within the period provided in that behalf. However, in the instant case, as discussed hereinabove, there was no question of failure on the part of the petitioners to pay any amount of surcharge or charge since they were not the members of the Grampanchayat, Ner for the period 1989 to 1999. 18. Therefore, taking overall view of the matter, in my opinion, the judgment and order passed by the Additional Collector, Dhule and the Additional Divisional Commissioner, Nashik Division, Nashik in Grampanchayat Appeal Nos. 6 of 2001 and 5 of 2011 cannot be sustained. Reliance placed by both the authorities on the provisions of Sections 140 and 178 of the said Act, is wholly misplaced in the facts of this case. The view taken by both the authorities disqualifying the petitioners herein as members of the Grampanchayat, Ner taking recourse to Section 14 (h1) cannot be sustained. 19. Therefore, for the reasons aforesaid, writ petitions succeeds. The impugned judgment and order passed by the Additional Collector dated 31-12-2010 in Grampanchayat Dispute Nos. 23 of 2010 and 22 of 2010 which is confirmed by the appellate authority on 30-03-2011 in Grampanchayat Appeal Nos.6 of 2011 and 5 of 2011, cannot be sustained, same are quashed and set aside. Both the Writ Petitions are allowed to above extent. Rule made absolute in terms of prayer clause (A). Writ Petitions stand disposed of.