Swaraj S/O Dilip Thote v. State Of Maharashtra, Thr. The Honble Minister Of Rural Devpt. Mumbai And ORS

1 jg.w.p. 1547.2022.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, AT NAGPUR.

Writ Petition No. 1547 of 2022 Swaraj S/o Dilip Thote Aged about 23 years, Occ ;

Agriculturist, R/o Gaigaon, Tq. Balapur, Dist. Akola.

... Petitioner ... Versus ...

(1) State of Maharashtra, through the Hon'ble Minister of Rural Development, Maharashtra State, Mantralaya, Mumbai-400032.

(2) Divisional Commissioner, Amravati Division, Amravati.

(3) Chief Executive Officer, Zilla Parishad, Akola.

(4) Block Development Officer, Panchayat Samiti, Balapur, Dist. Akola.

(5) Gram Panchayat, Gaigaon, Tq. Balapur, Dist. Akola through its Secretary

(6) Sau. Dipmala W/o Sanjay Wankhade Aged Major, Occ : Sarpanch of Gram Panchayat, Gaigaon.

(7) Sau. Satyabhama W/o Haribhau Dhok Aged Major, Occ : Member of Gram Panchayat, Gaigaon.

(8) Sau. Vidya W/o Dnyaneshwar Bhiwte Aged Major, Occ : Member of Gram Panchayat, Gaigaon.

2 jg.w.p. 1547.2022.odt

(9) Sau. Aruna W/o Gorakh Khetkar, Aged Major, Occ : Member of Gram Panchayat, Gaigaon.

(10) Sau. Nasimunnabai Habib Khan Aged Major, Occ : Member of Gram Panchayat, Gaigaon.

No. 6 to 10 R/o of Gaigaon, Tq. Balapur, Dist. Akola.

... Respondents - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. S. D. Chopde, Advocate for the petitioner Ms. T. H. Khan, A. G. P. for the State/respondents 1 and 2 Mr. D. G. Gawande, Advocate for respondents 6 to 10 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CORAM : ROHIT B. DEO, J.

DATED : 5- 4 -202 ORAL JUDGMENT Rule. Rule made returnable forthwith. With consent, the petition is finally heard.

2.

The challenge is to the order dated 7-3-2022 rendered by the Hon'ble Minister whereby the appeal preferred by the respondents 6 to 10 is allowed and their disqualification is set aside. 3.

Perusal of the order impugned reveals that one of the reasons recorded is that the mandate of Section 39(1) of the Maharashtra Village Panchayats Act, 1959 (Act) which contemplates that the enquiry shall be held by the Chief Executive Officer, is breached since the enquiry is conducted by the Block Development Officer.

3 jg.w.p. 1547.2022.odt 4.

I have scrutinized the material placed on record and having done so, I am satisfied that the Hon'ble Minister committed no error in allowing the appeal.

5.

I hold so, since the Chief Executive Officer has apparently only reproduced the statements recorded by the Block Development Officer, and the inferences drawn by the said subordinate officer on the basis of the material. Even if it is assumed arguendo that a preliminary enquiry could have been conducted by the Block Development Officer, it was necessary for the Chief Executive Officer to independently inquire into the allegations, which has not been done. 6.

The law is well entrenched and it would suffice if a reference is made to observations in Nimba Yadav Bhoi..vs.. President, Standing Committee, Zilla Parishad, Jalgaon and Ors reported in 2002(3)Mh.L.J.466 which reads thus :

"6. Section 39(1) of the said Act which is relevant for the decision in the matter, reads thus :-- "39(1). The Standing Committee may 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 Standing Committee also be removed from the Panchayat:

4 jg.w.p. 1547.2022.odt Provided that, no such person shall be removed from office unless the Chief Executive Officer under the orders of the President of the Zilla Parishad concerned 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 submits his report to the Standing Committee."

7. It cannot be disputed that in case a Sarpanch having been found 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, can be removed from the office in exercise of powers under Section 39(1) of the said Act and on such removal from the office of Sarpanch, he would be ineligible for reelection to the office of Sarpanch during the remainder term of the office, in view of the provisions contained in Section 39(1), and he may be rendered disqualified by virtue of decision of the Standing Committee to contest the election for the membership of the Panchayat for a period of five years from the date of the decision of the Standing Committee in that behalf, in view of Sub-section (2) of Section 39 of the said Act. However, any such action of removal of the Sarpanch is always subject to certain conditions which are specified in the proviso to Section 39(1) quoted herein above.

8. The removal of a person from the office of Sarpanch is to be preceded by an opportunity of being heard in the matter by the authority holding enquiry pursuant to the order issued in that regard by the President of Zilla Parishad. Such authority to enquire into the matter has necessarily to be the Chief Executive Officer of the Zilla Parishad and the decision regarding the removal should be on the basis of the report by the Chief Executive Officer submitted to the Standing Committee. Referring to this proviso to Section 39(1), it has been contended that the expression "shall" therein and the proviso in the negative language discloses the intention of legislature that the pre-conditions which are specified thereunder are to be strictly complied with in order to have a legal sanctity to the order of removal of Sarpanch under the

5 jg.w.p. 1547.2022.odt said provision of law.

12. Perusal of proviso to Sub-section (1) of Section 39 of the said Act clearly disclose that the language used therein is not only in negative form but it is also prohibitive. The proviso opens with the expression. "No such person shall be removed from the office unless.............." These words apparently disclose the intention of the legislature that the compliance of the directions under the said proviso is a mandatory prerequisite for taking action of removal of a person from the office of Sarpanch.

Once the intention of the legislature, as regards, the compliance of prerequisite for an action of removal of a person from the office of Sarpanch being apparent from the very language of the provision contained in proviso to Section 39(1), it cannot be said that any enquiry conducted by any officer other than the Chief Executive Officer would amount to the enquiry as contemplated under the said provision of law.

It is not only necessary for the enquiry to be held by the Chief Executive Officer, but such enquiry has to be preceded with the specific order of Zilla Parishad in that behalf and only consequent to such order, the Chief Executive Officer would be entitled to hold enquiry for the purpose of finding out whether the person occupying the office of Sarpanch is to be removed from the said office or not and before arriving at any conclusion in that regard. It is necessary to give fair opportunity of being heard to the concerned person. The hearing has necessarily to be by the officer specified and designated under the said provision of law and not by any other person. The provisions contained in Section 39 of the said Act are, therefore, to be held as mandatory in nature and require strict compliance thereof.

15. There is no doubt, that the Chief Executive Officer under the Samitis Act is duly empowered to delegate his powers under certain circumstances. However, the said provision clearly disclose that a delegation of powers can be in relation to the powers or duties or functions which are imposed upon or vested in the Chief Executive Officer by or under the Samitis Act and not under any other Act. The function which has been entrusted to the Chief Executive Officer under Section 39(1) of the said Act is not power or duty or function

6 jg.w.p. 1547.2022.odt imposed upon the Chief Executive Officer under the Samitis Act. The enquiry which is contemplated by the Chief Executive Officer under proviso to Section 39(1) is in relation to the conduct of the Sarpanch and the said enquiry has nothing to do with any of the functions or duties of the Chief Executive Officer under the Samitis Act. Besides, it is well established principle of law that any authority bestowed with judicial or quasi judicial powers under a statute cannot delegate his powers except when specifically permitted under the statute. In other words, when the statute prescribes that a particular officer has to exercise the power thereunder, then such powers must be exercised by that officer, and that officer alone, and none else except and unless the statute by express words or by necessary implication permits delegation of such powers, and in which event such powers may also be exercised by the delegatee if the delegation is in accordance with the terms of the statute and not otherwise.

20. It is apparent from bare reading of proviso to Sub-section

(1) of Section 39 of the said Act, that the enquiry is to be conducted by the Chief Executive Officer pursuant to an order in that behalf by the President of Zilla Parishad and there being no provision for delegation of such power by the Chief Executive Officer in favour of any other officer of the Parishad or otherwise, the enquiry has necessarily to be conducted by the Chief Executive Officer himself. The provisions contained in Section 96 of the Samitis Act can be of no help to justify any delegation of the powers of the Chief Executive Officer to hold the enquiry in the matter under Section 39(1) of the said Act as Section 96 of the Samitis Act restricts the entitlement of delegation of powers to the extent they relate to the duties and functions under the Samitis Act and not under the said Act.

26. Considering the provisions contained in Section 39(1) of the said Act, and the law on the subject matter discussed hereinabove, it is apparent that the enquiry under Section 39 of the said Act has necessarily to be conducted by the Chief Executive Officer and none else. Such Enquiry has to be preceded by necessary order directing the Chief Executive Officer to hold the enquiry and such order should be necessarily issued by the President of the Zilla Parishad.

7 jg.w.p. 1547.2022.odt Pursuant to such appointment, the Chief Executive Officer himself has to hear the person against whom the enquiry is to be conducted and based on such enquiry, the Chief Executive Officer has to prepare a report and submit the same to the President of the Zilla Parishad. AH these requirements are mandatory in nature and any failure in that regard on the part of the authorities, the proceedings under Section 39(1) of the Said Act would be vitiated and any order passed on the basis of such proceedings which are vitiated would be rendered null and void. Reverting to the facts of the case, undisputedly, the order of the removal of the petitioner from the office of Sarpanch was not preceded by any enquiry by the Chief Executive Officer. There was no order of the President appointing the Chief Executive Officer to enquire into the matter."

7.

Relying on the said decision, I have observed thus in Writ Petition 7158/2017 (Shalik s/o Bolan Dahiwale Vs. State of Maharashtra and ors.) :

"10 The learned counsel for respondent 4, Shri Mohan Sudame and the learned counsel for respondents 7 and 8 Shri N.Y. Thengre made a valiant attempt to support the orders impugned. The thrust of their submission is that the Chief Executive Officer is not expected to record the statements and there is nothing inherently wrong in Block Development Officer's recording the statements of the witnesses in view of the grant of opportunity of hearing to the petitioner by the Chief Executive Officer. This submission can not be countenanced. The mandate of section 39(1) of the Act is that the inquiry must be personally conducted by the Chief Executive Officer and no delegation thereof to subordinate officer / s is permissible. Moreover, as is rightly submitted by Shri R.M. Tahliyani, the inquiry conducted by the Block Development Officer was not preceded by the permission of the Commissioner and irrefutably after the

8 jg.w.p. 1547.2022.odt Commissioner permitted inquiry by order dated 22.4.2016, no inquiry is conducted. In this view of the matter, the orders impugned are unsustainable in law and are quashed and set aside."

8.

While I am not inclined to interfere in writ jurisdiction, I may observe that if the authorities intend to pursue the issue, they are free to initiate appropriate action strictly in accordance with law. 9.

The petition is disposed of.

JUDGE wasnik YUVRAJ WASNIK