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2021 DIGILAW 785 (BOM)

Shamabi Gulab Pathan v. State of Maharashtra

2021-04-21

R.G.AVACHAT

body2021
JUDGMENT 1. The challenge in this Writ Petition is to the order passed by the Additional Commissioner, Aurangabad, dated 16/9/2020 in No.DB/DESK-2/ZPVP APPLICATION/CR/179/ 2019 and confirmed by the Hon'ble Minister for State, Rural Development, vide order dated 6/11/2020 in VPM-2020/PET. NO.71/PANRA-6. 2. By the impugned order dated 16/9/2020, passed under Section 39, the Additional Commissioner, Aurangabad held the petitioner to be disqualified to hold the post for the remaining period of the Village Panchayat [ under Section 39(1) of the Maharashtra Village Panchayats Act (for short, the Act) ]. The Minister has confirmed the said order. The petitioner is, therefore, before this Court. 3. The facts necessary to decide this petition are as follows :- The petitioner was elected as Sarpanch of village Nandrabad, Taluka Gangapur, District Aurangabad on 8/10/2017. The respondent No.3 filed the complaint dated 26/2/2018, alleging misappropriation of funds in implementation of Village Development Schemes. Pursuant to the said complaint, the Block Development Officer (B.D.O.) conducted enquiry and submitted report dated 8/3/2019 to the Chief Executive Officer (C.E.O.), Zilla Parishad, Aurangabad. The C.E.O., in turn, issued notice to the petitioner and called for her explanation. The petitioner failed to submit her explanation. The C.E.O., in turn, submitted his report to the Additional Divisional Commissioner vide communication dated 6/3/2020, soliciting action under Section 39(1) of the Act. The Additional Commissioner issued the notice to the petitioner, calling upon her to file her response. The respondent No.3 had also been issued with the notice of the said proceedings. The Additional Commissioner found that a sum of Rs.2,40,893/- had not been properly utilized for solid and liquid waste management project. The responsibility was placed on the petitioner and the Gramsevak - Shri P.H. Khandagale. Since the petitioner was held guilty of the misconduct in the discharge of her duties, she came to be held disqualified to hold the post for the remaining period. 4. Shri Prashant S. Shinde, learned counsel for the petitioner would submit that the project of solid and liquid waste management was implemented in the village before the petitioner came to be elected as a Sarpanch of the village. During the tenure of the petitioner, only a sum of Rs.99,863/-had been disbursed to the contractor under three different cheques as the said amount was released by B.D.O. to the Grampanchayat for the very purpose. During the tenure of the petitioner, only a sum of Rs.99,863/-had been disbursed to the contractor under three different cheques as the said amount was released by B.D.O. to the Grampanchayat for the very purpose. As such, the observations in both the orders impugned in this petition are inconsistent with the facts. The respondent No.3 and Ex-Sarpanch have filed various false complaints against the petitioner. The learned counsel, therefore, urged for setting aside the impugned orders. 5. Learned A.G.P. supported the impugned orders. Shri Saeed S. Shaikh, and Shri Rahul Patil, learned counsel appearing for respondents No.3 and 4 respectively would, on the other hand, submit that the petitioner has been guilty of misconduct. She did not file her response during the enquiry conducted by the C.E.O. The petitioner, during her tenure as Sarpanch, indulged in misappropriation of public funds. The petitioner has shown Chawadi of the village as waste management plan. The same is evident from the Form No.8. The entries in the Measurement Book have been taken during the tenure of the petitioner. It is the petitioner who issued the certificate in respect of the waste management plan and obtained funds from the concerned authority. The villagers had also made number of complaints against the petitioner in respect of illegal construction and encroachments. Three of the members of the Village Panchayat resigned from their post due to illegal activities of the petitioner - Sarpanch. The B.D.O. conducted a detailed enquiry and submitted the report. The C.E.O. conducted hearing in the matter and thereafter submitted his report. According to learned counsel, the Additional Commissioner rightly disqualified the petitioner to hold the post of Sarpanch. The Minister concerned was justified in upholding the said decision. According to the learned counsel, no interference is called for with the impugned orders. 6. Section 39 of the Maharashtra Village Panchayats Act reads thus : 39. Removal from office :- (1) The Commissioner may, (i) remove from office any member or any Sarpanch or Upa-Sarpanch who has been guilty of misconduct in the discharge of his duties, or of any disgraceful conduct, or of neglect of or incapacity to perform his duty, or is persistently remiss in the discharge thereof. A Sarpanch or an Upa-Sarpanch so removed may at the discretion of the Commissioner also be removed from the panchayat; or (ii) ......... A Sarpanch or an Upa-Sarpanch so removed may at the discretion of the Commissioner also be removed from the panchayat; or (ii) ......... Provided that, no such person shall be removed from office unless, in case of clause (i), the Chief Executive Officer or in case of clause (ii), the Deputy Chief Executive Officer as directed by the Chief Executive Officer; under the orders of the Commissioner, holds an inquiry after giving due notice to the Panchayat and the person concerned; and the person concerned has been given a reasonable opportunity of being heard and thereafter the Chief Executive Officer or, as the case may be, the Deputy Chief Executive Officer concerned, though the Chief Executive Officer, submits his report to the Commissioner. The inquiry officer shall submit his report within a period of one month; Provided further that, the Commissioner shall, after giving the person concerned a reasonable opportunity of being heard, take a decision on the report submitted by the Chief Executive Officer or, as the case may be, the Deputy Chief Executive Officer, within a period of one month from the date of receipt thereof.; (1A) Where a person is removed from office of the Sarpanch or Upa-Sarpanch, he shall not be eligible for re-election as Sarpanch or Upa-Sarpanch during the remainder of the term of office of members of the panchayat. (2) .......... (3) Any person aggrieved by an order of the Commissioner under sub-section (1) or (2) may, within a period of fifteen days from the date of the receipt of such order, appeal to the State Government and the Government shall decide the appeal within a period of one month from the date of receipt thereof. 7. Admittedly, the petitioner was elected as Sarpanch of the Village Nandrabad on 8/10/2017. The respondent No.3 had made a complaint against the petitioner. The complaint was enquired into by the B.D.O. The B.D.O. submitted his report dated 8/3/2019. The gist of the report dated 8/3/2019 is reproduced below in verbatim :- 8. The C.E.O. then submitted his report dated 10/3/2020 to the Divisional Commissioner, reiterating the observations made by the B.D.O. in his report dated 8/3/2019. The Additional Commissioner, after hearing the petitioner and the respondent No.3, found that a sum of Rs.2,40,863/- was paid to the contractor during the tenure of the petitioner and the Gramsevak - Shri P.H. Khandagale. The C.E.O. then submitted his report dated 10/3/2020 to the Divisional Commissioner, reiterating the observations made by the B.D.O. in his report dated 8/3/2019. The Additional Commissioner, after hearing the petitioner and the respondent No.3, found that a sum of Rs.2,40,863/- was paid to the contractor during the tenure of the petitioner and the Gramsevak - Shri P.H. Khandagale. Admittedly, the petitioner is no way concerned with the first four observations made by the B.D.O. in his report dated 8/3/2019. The report of the C.E.O. dated 6/3/2020 indicts the petitioner with the following observations :- 9. The record indicates that, the petitioner has been held guilty of misconduct in respect of release of funds of Rs.2,40,893/- in favour of the contractor towards implementation of the scheme of solid and liquid waste management. The submissions made by the learned respective counsel for respondents No.3 and 4 as regards other alleged illegalities by the petitioner, therefore, cannot be a subject of this Writ Petition. 10. It is true that the petitioner had appeared before the C.E.O. She, however, did not file her response in writing. It was, however, her contention before the authorities below that, solid and liquid waste management scheme was implemented during the tenure of her predecessor in office. Most of the amount had been disbursed by her predecessor in office. Only a sum of Rs.99,863/- was disbursed under three different cheques during her tenure, that too after the amount was released from the B.D.O. for the said purpose. In support of her contentions, the petitioner has produced on record certain documents in the nature of completion certificate in respect of solid and liquid waste management work and extract of Bank Account, indicating the payment of Rs.99,863/-. 11. From the material on record, it does appear that the work of solid and liquid waste management project had been completed during the tenure of the predecessor in office of the petitioner. Most of the payment had been released in favour of the contractor before the petitioner came to be elected as Sarpanch of the village. A sum of Rs.99,863/-came to be disbursed during her tenure. The said amount was made available for disbursement when the B.D.O. released the funds in that regard. Most of the payment had been released in favour of the contractor before the petitioner came to be elected as Sarpanch of the village. A sum of Rs.99,863/-came to be disbursed during her tenure. The said amount was made available for disbursement when the B.D.O. released the funds in that regard. As such, the observations in the impugned orders that, the amount of Rs.2,40,893/-was released during the tenure of the petitioner and the Gramsevak, appear to be inconsistent with the facts and circumstances of the case. It is, therefore, desirable to hold a fresh enquiry in this regard. Interference is, therefore, warranted with the impugned order. 12. The Writ Petition, therefore, succeeds in terms of the following order : 13. The Writ Petition is allowed in terms of prayer clause (B). The matter is remanded back to the Additional Commissioner, Aurangabad with a direction to decide it afresh after giving the parties thereto a reasonable opportunity of hearing. 14. The Additional Commissioner shall decide the matter within a period of two months from the date of receipt of a copy of this order. The parties shall appear before the Additional Commissioner on 10th May 2021.