Allowed

Sushma Dattatray Pulchuwad v. the State of Maharashtra and Others

Bombay HC30 Jul 2014WP/3427/2013

Case brief

AI extract

What is this about?

In a writ petition challenging an order of disqualification under Section 36 of the Bombay Village Panchayats Act, the High Court allowed the petition. The Court held that the petitioner having issued notices but not attending meetings did not warrant disqualification based solely on Section 36. Furthermore, the authority failed to frame charges or make the Extension Officer's report available, vi

What did the court decide?

The order dated 22nd February 2012 ordering disqualification is quashed and set aside. The matter is remanded to the Additional Collector, Nanded, to frame appropriate charges and take allegations of

Sushma Dattatray Pulchuwad Vs the State of… — Municipal and Town Planning | Bombay HC (2014)

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W.P.No.3427/2013

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD

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WRIT PETITION NO.3427 OF 2013

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Sau.Sushma w/o Dattatray Pulchuwad

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.. Petitioner

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Versus

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The State of Maharashtra and ors.

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.. Respondents

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Mr A.S.Golegaonkar, Advocate for petitioner Mr D.V.Tele, A.G.P. for respondents 1 and 2 Mr B.N.Gadegaonkar, Advocate for respondent No.5

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CORAM : N.W. SAMBRE, J.

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DATE : 30th July 2014

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PER COURT

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Petitioner was elected as Sarpanch on September 8, 2011 on a seat reserved for Scheduled Tribe woman category.

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An application for disqualification came to be moved against the petitioner for violating the requirement of Section 7 and Section 36 of the Bombay Village Panchayats Act. The allegation against the petitioner was that the petitioner after her election has failed to hold requisite number of Gramsabhas and monthly meetings as per the mandate of Section 7 and Section 36 of the Bombay Village Panchayats Act.

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W.P.No.3427/2013

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In response to the complaint preferred by the respondent against the petitioner, the Additional Collector has sought say of the Extension Officer who submitted his report supporting the claim for disqualification.

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The Additional Collector while analysing the claim of the respondent in the light of the explanation tendered by the petitioner has reached to conclusion that the petitioner has convened two Gramsabhas for the period from September 2011 to March 2012, however, has failed to convene the monthly meetings of January 2012 to March 2012 and as such has incurred disqualification.

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The respondent – Additional Collector, by order dated 22^nd February 2013 ordered disqualification of the petitioner for violation of provisions of Section 36 of the Act, as such the present petition.

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While attacking the order passed by the Additional Collector, learned Counsel for the petitioner Mr Golegaonkar has invited attention of this Court to the fact that for the monthly meetings of January, February and March 2012, notices were issued as is reflected in the record of the Gram Panchayat. Those meetings were convened or not cannot be used to the detriment to the

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W.P.No.3427/2013

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interest of petitioner. He submits that once the petitioner has issued the notices of the said meetings as is reflected in the report submitted by the Secretary of the Gram Panchayat, even her absence in the said meetings cannot be termed as incurring disqualification under Section 36 of the Act. In support of his contention, learned Counsel for the petitioner has invited attention of this Court to the language used in Section 36 of the Act, which reads thus :

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“36. Time and place of sitting of panchayat and procedure at meetings.

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The time and place of sitting, and the procedure at a meeting, of the panchayat shall be such as may be prescribed:

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[Provided that, if the Sarpanch , or in his absence the Upa-Sarpanch, fails without sufficient cause, to convene the meeting of the panchayat in any financial year according to the rules prescribed in that behalf, he shall be disqualified for continuing as Sarpanch or, as the case may be, Upa-Sarpanch or for being chosen as such for the remainder of the term of office of the members of the panchayat . The decision of the Collector on the question whether or not there was sufficient cause shall be final.]”

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W.P.No.3427/2013

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He further submits that the issue as to whether nonattending the meetings by the petitioner in the capacity of Sarpanch will incur disqualification is already dealt with in the matter of Mangala w/o Dhanraj Kalbande Vs. State of Maharashtra and ors., reported in 2010 (6) Mh.L.J.307 and has sought to place reliance on the observations made in paragraph 5 and 6 of the said judgment. He submits that Section 36 of the Act speaks of failure to convene the meeting and the absence at the meeting, is not relevant for it, is already concluded by the said judgment.

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He further submits that the order passed by learned Additional Collector is also not sustainable in the eyes of law in view of law laid down in the matter of Pratibha Sanjay Hulle Vs. Additional Collector & Ors., reported in 2010 (4) Bom.C.R. 700. So as to demonstrate that no specific charge was framed and served on the petitioner so as to facilitate the petitioner to answer the same appropriately, the petitioner has invited my attention to the order impugned. According to learned Counsel for the petitioner, same amounts to denial of hearing and as such, submits that the order impugned is liable to be quashed and set aside.

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While opposing the above referred contentions, learned Counsel for the respondents – elected members invited attention of

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W.P.No.3427/2013

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this Court to the callous approach of the petitioner while conducting the proceedings of Gram Panchayat. He submits that though in the record, it is mentioned that the notice of the monthly meetings of 21^st January 2012, 22^nd February 2012 and 21^st March 2012 were shown to have been issued, however, no such meetings were convened by the petitioner. The said notices of the monthly meetings were not taken to its logical end.

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He further submits that he has filed the application for disqualification in the month of May 2012. Failure on the part of the petitioner in holding the monthly meeting in April 2012 was also not dealt with by the Additional Collector.

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Having considered the contention of the parties, it is noticed that Additional Collector, from the record produced by the Secretary of the Gram Panchayat, noticed that the notices of the monthly meetings of January, February and March 2012 were very much issued. So far as non-convening or holding of the meeting by the present petitioner is sought to be attributed by the Additional Collector for the purpose of ordering disqualification under Section 36 of the Act to the petitioner. Once the petitioner has caused to issue notices of monthly meetings, the subsequent conduct of the elected members of the Gram Panchayat as to attending the meeting etc. Consequence thereof qua prayer for disqualification

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W.P.No.3427/2013

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is required to be analysed by the authority while dealing with the prayer for disqualification under Section 36 of the Act.

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Plain reading of Section 36 contemplates a penal action on an elected member. In such a case, in my opinion, least that was expected of the authority to frame appropriate charge against the petitioner which gives her an appropriate opportunity to defend.

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In view of law discussed in the judgment of Pratibha (cited supra), it was expected of respondent – authority to frame charge against the petitioner. Perusal of the order impugned reflects that for the purpose of reaching to conclusion that the petitioner, though has called the meetings, however, the record of Gram Panchayat contains the signature of petitioner only, the Additional Collector sought to place reliance upon the report submitted by the Extension Officer.

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It is also not clear whether the said report of the Extension Officer was made available to the present petitioner.

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For all the above reasons, in my opinion, the order passed by the Additional Collector, Nanded ordering disqualification under Section 36 of the Bombay Village Panchayats Act calls for an interference. As such, the order dated 22^nd February 2012 is hereby quashed and set aside.

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W.P.No.3427/2013

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The matter is remanded back to the Additional Collector, Nanded with direction to frame appropriate charge against the petitioner which will enable the petitioner to submit her explanation. Additional Collector is also expected of to take into account the allegations made in the complaint and which are being pointed by the learned Counsel for the respondents before this Court as regards non-convening the meeting. Writ Petition is allowed in above terms.

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The parties agree that they will appear before the Additional Collector on 16^th August, 2014. It is expected of the Additional Collector to decide the said proceedings expeditiously and in any case within a period of three months thereafter.

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( N.W. SAMBRE, J.)

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(vvr/3427.13wp)

Sushma Dattatray Pulchuwad v. the State of Maharashtra and Others

Case brief

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Sushma Dattatray Pulchuwad v. the State of Maharashtra and Others

Case brief

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