Allowed

Mrs. Kamini Kailas Dhule v. Additional District Collector and Ors.

Bombay HC6 Dec 2023WP/1114/2023

Case brief

AI extract

What is this about?

The Court allowed a Writ Petition quashing an order of disqualification imposed on a Sarpanch for failing to hold the mandatory Gram Sabha by May 2022. The High Court held that the Additional District Collector acted perversely by ignoring confirmed medical evidence of the Petitioner's serious illness, which constituted sufficient cause for the delay, violating principles of natural justice.

What did the court decide?

The impugned Order disqualifying the Petitioner was quashed and set aside; the underlying Gram Panchayat Case was dismissed; the Writ Petition was allowed.

Mrs. Kamini Kailas Dhule Vs Additional… — Pension and Retirement Benefits | Bombay HC (2023)

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Arjun

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.1114 OF 2023 Mrs. Kamini Kailas Dhule, …Petitioner Sarpanch Group Grampanchayat Dahivali

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V/s.

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Additional District Collector, …Respondents District – Thane & Ors.

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Mr. Rahul Hakani a/w Niyati Mankad, Shreya Gosavi, Advait Dalvi i/b Kirit Hakani, for the Petitioner.

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Mr. S. D. Rayrikar, AGP, for Respondent Nos.1 to 3-State.

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Mr. Saurabh Oka, for Respondent No.4.

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CORAM : MADHAV J. JAMDAR, J. DATED : DECEMBER 06, 2023

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JUDGMENT:

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1. Heard Mr. Hakani, learned Counsel appearing for the Petitioner, Mr. Rayrikar, learned AGP, for the Respondent Nos.1 to 3-State and Mr. Oka, learned Counsel appearing for Respondent No.4.

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2. Learned Counsel appearing for the Petitioner states that Respondent No.2 has been served. He further states that, in any case, Respondent No.2 is not a contesting party to the present Writ Petition.

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3. The Petitioner is challenging the legality and validity of the Order dated 28th December 2022 passed by the Additional District Collector, Thane in Gram Panchayat Case No.34 of 2022 (“ impugned Order ”). The said Gram Panchayat Case No.34 of 2022 has been filed under Section 36 read with Section 7(1) of the Maharashtra Village Panchayats Act (Act No.III of 1959) (“ said Act ”) by the Respondent No.4-Pramod Suresh Deshmukh, who is the Upa-Sarpanch of the Group Gram Panchayat, Dahivali, Taluka-Ambarnath, District-Thane. By the said impugned Order, the Additional District Collector, Thane allowed the said Gram Panchayat Case and disqualified the Petitioner from both, the post of Sarpanch and also as a member of the Group Gram Panchayat Dahivali, Taluka–Ambarnath, District–Thane on the ground that the Petitioner, in her capacity as the Sarpanch, did not hold the first Gram Sabha for the financial year 2022-23 before 30th May 2022.

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4. It is the contention of learned Counsel appearing for the Petitioner that the Petitioner has held the requisite number of monthly meetings as well as the requisite number of Gram Sabhas during the said period of 2022-23. He submitted that the first Gram Sabha for the financial year 2022-23 which was required to be held before 30th May 2022, could not be held because the Petitioner was suffering from serious medical

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ailments and she was undergoing medical treatment. He submitted that relevant material has been produced to substantiate the same. However, he further submitted that the Additional District Collector has referred the said medical papers, including the medical certificate of the Petitioner to the Civil Surgeon, Civil Hospital, Thane, who then constituted a committee of expert doctors to examine the same, and the said committee submitted a report dated 15th November 2022 certifying the Petitioner’s medical condition. He submitted that the impugned Order is completely perverse as the said medical papers and certificate have not been taken into consideration by the learned Additional District Collector while giving reasons for passing the impugned Order. He submitted that, in this case, Section 7 of the said Act, which requires that the first Gram Sabha be held on or before the 31st of May, contemplates that a delay in holding the said Gram Sabha is permitted for reasonable and sufficient reasons. Mr. Hakani, learned Counsel appearing for the Petitioner has relied on the decision of a learned Single Judge of this Court [Aurangabad Bench] in the case of Manohar V. Collector¹ .

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5. It is the contention of Mr. Oka, learned Counsel appearing for Respondent No.4 that there are no sufficient reasons to justify the delay in holding the first Gram Sabha. He submitted that

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1 2023 SCC OnLine Bom 491 : (2023) 3 AIR Bom R 109

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during the said period, the Petitioner attended the office on two or three occasions and signed the salary bills of the employees of the Gram Panchayat. He submitted that in view of the Petitioner personally visiting the office, the reasons given for not holding the said Gram Sabha within the prescribed time limit are not genuine reasons. He relied on the decision of a learned Single Judge of this Court in the case of Gunwantrao Yeshwantrao Deshmukh V. State of Maharashtra & Anr.²

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6. Before considering the rival submissions, it is necessary to set out certain factual aspects :-

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(i) The general election of the Group Gram Panchayat, Dahivali was held and in the said election, the Petitioner, Respondent No.4 and other members were declared elected on 15th January 2021. The Petitioner was elected from the seat reserved for women belonging to the Other Backward Class (OBC) catgegory. After the constitution of the committee of Respondent No.2, i.e., Group Gram Panchayat Dahivali, the elections of the Sarpanch and the Upa-Sarpanch were held on 8th February 2021 in which the Petitioner was elected as Sarpanch and Respondent No.4 was elected as Upa-Sarpanch.

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(ii) It is undisputed that the Petitioner has convened and

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2 1981 Mh.L.J. 815 : 1981 SCC OnLine Bom 110

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conducted the requisite number of Gram Sabha meetings for the financial year 2021-22 and the same is also reflected in the report of the Block Development Officer, Ambarnath. For the financial year 2022-23, the first meeting of Gram Sabha was required to be held on or before 31st May 2022 but it was eventually held on 27th June 2022.

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7. It is the contention of learned Counsel appearing for the Petitioner that, due to her serious illness during the period from 2nd May 2022 to 25th May 2022, the Petitioner was unable to convene the Gram Sabha meeting on or before 30th May 2022. It is the case of the Petitioner that despite her illness she visited the office of the Gram Panchayat twice or thrice during the said period to sign the pay cheques of the employees of the Panchayat and some urgent papers. It is the case of the Petitioner that after recovering from her illness, she convened the monthly meeting of the Village Sabha for the month of May 2022 on 30th May 2022. The Respondent No.4, who is the Upa-Sarpanch attended and participated in the said monthly meeting of the Gram Panchayat held on 30th May 2022.

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8. It is the case of the Petitioner that, in consultation with Respondent No.4, the Petitioner issued notice of the Gram Sabha along with an agenda on 31st May 2022. However, in view of the

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transfer of Gram Sevak, Mr. Vaibhav Padwal, on 31st May 2022 a fresh notice of Gram Sabha with an agenda was issued on 10th June 2022 under the signature of the Petitioner and the newly appointed Gram Sevak scheduling the Gram Sabha on 20th June 2022. On 20th June 2022, for want of quorum, the meeting of the Gram Sabha could not be held and, therefore, on 20th June 2022 the notice of the adjourned meeting fixing the date of meeting as 27th June 2022 was issued and, accordingly, the Gram Sabha was held on 27th June 2022, wherein Respondent No.4, i.e., UpaSarpanch actively participated without raising any objection of delay in holding the meeting.

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9. It appears that, on 14th June 2022, the complaint dated 6th June 2022 (presented on 14th June 2022) was filed by Respondent No.4, i.e., Upa-Sarpanch before the Additional District Collector, Thane under Section 36 read with Section 7(1) of the said Act seeking the disqualification of the Petitioner-Sarpanch. It is the contention of the Petitioner that in the said complaint, Respondent No.4 has suppressed knowledge about the Petitioner’s serious illness.

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10. The Respondent No.1, i.e., the Additional District Collector called for the report from the Block Development Officer, Ambarnath on the said complaint. On 29th June 2022, the Block Development Officer submitted his report to the office of the

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Collector, Thane along with the reply of the Petitioner. In the said report, the Block Development Officer, Ambarnath has, inter alia, stated as follows :-

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ß1½ egkjk”V ª xzkeiapk;r vf/kfu;e 1959 dye 36 uqlkj ljiap lkSdkfeuh dSykl /kwGs ;kauh R;k ljiap inh fuoMwu vkY;kiklwu njegk ekfld lHkk ?ksrysY;k vkgsr R;kewGs R;k laca/khr dye 36 uqlkj dkjokbZl ik= ukghr -

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2½ egkjk”Vª xzkeiapk;r vf/kfu;e 1959 e/khy dye 7¼1½ uqlkj xzkeiapk;rhus ekgs es v[ksj ighyh xzkelHkk ?ks.ks vko’;d gksrs- rFkkih rRdkyhu xzkefodkl vf/kdkjh ;kaph cnyh >kY;kus o ljiap ;k eghykaP;k xaHkhj vktkjkewGs vktkjh vlY;kus lnjph lHkk ekgs es e/;s xzkelHkk ?ksrysyh ukgh ek= lnj lHkk 27@06@2022 jksth ?ks.;kr vkysyh vkgs -Þ

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(Emphasis added)

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English translation of the same is as follows :-

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“1) As per Section 36 of the Maharashtra Village Panchayats Act, 1959, the Sarpanch Sau. Kamini Kailash Dhule has held monthly meetings every month since the date of her election to the post of Sarpanch . Therefore, she is not liable for the action under the above-referred Section 36.

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As per Section 7(1) of the Maharashtra Village Panchayats Act, 1959, the Gram Panchayat was required to hold f i rst Gram Sabha by the end of the month of May . However, the then Village Development Off i cer had been transferred and the Sarpanch was suffering from serious Gynecologic illness and therefore, the said meeting – Gram Sabha was not held in the month of May . However, the said meeting has been held on 27.06.2022 .”

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11. The Respondent No.1-Additional District Collector forwarded the medical papers and medical certificate of the Petitioner to the Civil Surgeon, Civil Hospital, Thane, who in turn constituted a committee of expert doctors, which included an expert Gynecologist, to examine the medical papers and medical certificate of the Petitioner.

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12. The said committee submitted its opinion by the letter dated 15th November 2022, which reads as under:-

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ßmijksDr lanfHkZ; i=kuqlkj ;k dk;kZy;kl ikBfo.;kr vkysY;k Jherh dkfeuh /kqGs ljiap xzqi xzkeiapk;r nfgoyh ;kauh fnukad 26@05@2022 jksth lknj dsysY;k oS|dh; izek.ki=kps ;k dk;kZy;kus xBhr dsysY;k dfeVhus voyksdu dsys vlrk lnj oS|dh; izek.ki=kr n'kZfoysyk vktkj fdaok =klkcn~ny dsysyk mipkj ;ksX; vkgs- rlsp mipkj dj.kkÚ;k MkWftrsanz oMMhdj&B.A.M.S. ;kauh :X.kkl fnysys oS|dh; izek.ki= oS/k vkg s-Þ

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English translation of the said letter is as follows :-

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"When the Committee members of the Committee set up by this Office perused the Medical Certificate submitted by Smt. Kamini Dhule, Sarpanch, Group Grampanchayat, Dahivali submitted on the date 26.05.2022 and forwarded to this Office vide the abovereferred letter, it is found that the treatment given for the disease or for the medical issue mentioned in the said Medical Certif i cate is proper and that the Medical Certif i cate issued to the patient by Dr. Jitendra Vadadikar, B.A.M.S. who gave treatment, is valid ."

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13. Thereafter, the Additional District Collector passed the

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impugned Order dated 28th December 2022. The relevant portion of the reasoning part of the said impugned Order, is as follows :

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ß Lkkeusokys Jhe- dkfeuh dSykl /kqGs ;k fnukad 02@05@2022 rs 25@05@2022 ;k dkyko/khr oS|dh; dkj.kklkBh mifLFkr uOgrk ;kckcr R;kauh xzkeiapk;rhyk rls ys[kh dGfoysys ukgh- rlsp ;k dkyko/khr ljiap ;kauh xzkeiapk;rhP;k dkgh psDl oj lg~;klq/nk dysY;k vkgsrxzkelHksph cSBd cksyko.;kph tckcnkjh ljiap o R;kps xSjgtsjhr miljiapkoj vkgs- ijarq ljiap ;kauh R;kaP;k xSjgtsjhckcr xzkeiapk;rhyk lqfpr dsysys ulY;keqGs xzkelHkk cksyko.;kr dlqj dsY;kcn~ny izFken’kZuh ljiap tckcnkj vlY;kps fnlwu ;srs -

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Lkcc] mijksDr oLrqfLFkrh ikgrk ek>h v’kh [kk=h >kyh vkgs dh] xzkeiapk;r nfgoyh rk- vacjukFk ;sFkhy lkeusokys dz-1 ljiap Jhe- dkfeuh dSykl /kqGs o lkeusokys dz-2 xzkefodkl vf/kdkjh Jh- iMoG ;kauh xzkeiapk;r nfgoyh ;sFks foRrh; o”kZ lu 2022&23 ;k dkyko/khr ekgs es 2022 ph xzkelHkk vk;ksftr dj.ksdkeh gyxthZi.kk@fu”dkGthi.kk dsY;kps Li”V fnlwu ;sr vkgs- xzkelHkk fofgr eqnrhr vk;ksftr u dj.ksckcr fnysys dkj.ks gh leiZd] okLrfod o ;ksX; ukgh - ‘kklu fu.kZ;kizek.ks egkjk”Vª xzkeiapk;r vf/kfu;e 1958 ps dye 7 izek.ks xzkelHkk vk;ksftr dj.ks o b- dkes ljiap ;kauh dk;Zdkjh izeq[k Eg.kwu d:u ?ks.ks vko’;d gksrs- ljiap fdaok miljiap ;kauh lHkk cksykfoyh ukgh rj lnjgq lHkk cksykfo.ks gs lfpokps lq/nk drZO; vkgs- R;keqGs lkeusokys dz- 2 xzkefodkl vf/kdkjh] ;kauh ns[khy R;kaps dkedktkps drZO;kr dlqj dsY;kps fnlwu ;srs - lcc vtZnkj ;kapk fookn vtZ ekU; dj.;kr ;kos vls er >kys vkgs- rjh egkjk”Vª xzkeiapk;r vf/kfu;e 1959 os dye 7¼1½ vUo;s eyk iznku dsysY;k vf/kdkjkpk okij d:u eh] efu”kk tk;Hkk;s&/kqGs] vij ftYgkf/kdkjh Bk.ks [kkyhyizek.ks vkns’k ikfjr djhr vkgs-

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vkn'ks %&

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1- vtZnkj ;kapk fnukad 24@04@2022 jksthpk fookn vtZ ekU; dj.;kr ;sr vkgs-

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2- egkjk”Vª xzkeiapk;r vf/kfu;e 1959 os dye 7 vUo;s] xzkeiapk;r nfgoyh] rk- vacjukFk ps foRrh; o”kZ lu 2022&23 ;k dkyko/khrhy ifgyh xzkelHkk 30 es fdaok R;kiqohZ ?ks.;kl dlqj

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dsY;keqGs Jhe- dkfeuh dSykl /kqGs] ljiap rFkk infl/n lnL;] xzkeiapk;r nfgoyh rk- vacjukFk ;kauk ljiap rFkk lnL;inh fujgZ ¼vugZ½ Bjfo.;kr ;sr vkg s-

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3- lnjpk fu.kZ; loZ laca/khrkauk jftLVj iks”Vk}kjs dGfo.;kr ;kok-

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4- [kpkZckcr vkns’k ukghr-Þ

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(Emphasis added)

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English translation of the same is as follows :-

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“ The Respondent Smt. Kamini Kailas Dhule was not present on account of medical ground during the period from the date 02.05.2022 to 25.05.2022 but she has not informed the off i ce of the Grampanchayat to that effect. Moreover, during the said period, she even has aff i xed her signatures to some cheques issued by the Grampanchayat. The responsibility to convene the Gramsabha is of the Sarpanch and in the event of his/her absence, then the same is of the Upa-Sarpanch. However, as the Sarpanch has not informed the Grampanchayat about her absence, it is found that prima facie, the Sarpanch is responsible for committing dereliction in convening Gramsabha .

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Hence, on considering the aforesaid facts, I am satisfied that it is clearly seen that Smt. Kamini Kailas Dhule, the Sarpanch-Respondent No.1 and Shri Padval, Village Development Off i cer of the Grampanchayat Dahivali, Tal. Ambarnath have committed carelessness/shown negligence in convening the Gramsabha of the month of May, 2022 during the period of the f i nancial year 2022-2023 at Grampanchayat Dahivali. The grounds for not convening the Gramsabha within the prescribed period are not apt, true and

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appropriate . As per the directions given in the Government Resolution, it was necessary for the Sarpanch in the capacity of the Executive Head, to get done the works such as to convene the Gramsabha in accordance with Section 7 of the Maharashtra Grampanchayat Act, 1958. If the Sarpanch or the UpaSarpanch did not convene the meeting then, it is the duty of the Secretary as well to convene the said meeting. Therefore, it is found that the Village Development Off i cer-Respondent No.2 has committed dereliction of duty of his work . Hence, I have arrived at the conclusion that the Dispute-Application of the Applicant should be allowed. Therefore, I, Manisha Jaybhaye-Dhule, the Additional Collector, Thane, in exercise of the powers delegated to me under section 7(1) of the Maharashtra Grampanchayat Act, 1959, hereby pass order as under :

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O R D E R

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Dispute-Application dated 24.04.2022 of the Applicant is allowed.

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As Smt. Kamini Kailas Dhule, Sarpanch and the ExOff i cio Member, Grampanchayat Dahivali, Tal. Ambarnath failed to convene f i rst Gramsabha of the Grampanchayat Dahivali, Tal. Ambarnath during the period of the financial year 2022-2023 on or before the date 30^th May, as per Section 7 of the Maharashtra Grampanchayat Act, 1959, she is declared as disqualif i ed to hold the post of Sarpanch and Member .

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This decision shall be informed to all the parties concerned by registered post.

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No order as to the costs.”

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14. A perusal of the impugned Order clearly shows that the medical papers produced by the Petitioner and the opinion of the said committee experts whom the medical papers have been referred to by the Additional District Collector seeking expert opinion, are not taken into consideration by the Additional District Collector.

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15. The impugned Order has been passed under Section 7 (1) of the said Act, the relevant portion of the same is as follows :-

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“ 7. Meetings of Gram Sabha. -(1) There shall be held at least four meetings of the Gram Sabha every f i nancial year on such date, at such time and place, and in such manner, as may be prescribed and if the Sarpanch or in his absence the Upa-Sarpanch fails without suff i cient cause to hold any of such four meetings, he shall be disqualif i ed for continuing as Sarpanch, as the case may be, Upa-Sarpanch or for being chosen as such for the remainder of the term of off i ce of the members of the Panchayat; and the Secretary of the Panchayat shall also if, prima facie, found responsible of any lapse in convening such meeting, be liable to be suspended, and for being proceeded against, for such other disciplinary action as provided under the relevant rules. The decision of the Collector on the question whether or not there was such suff i cient cause shall be f i nal :

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Provided also that, if the Sarpanch or Upa-Sarpanch, as

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the case may be, fails to call any such meeting within the specif i ed period, the Secretary shall call the meeting and it shall be presumed that such meeting has been called with the concurrence of the Sarpanch or, as the case may be, Upa-Sarpanch .”

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Thus, what is contemplated under Section 7(1) of the said Act is that at least four meetings of the Gram Sabha shall be held in every financial year on such date, at such time and place and in such manner, as may be prescribed and if the Sarpanch, or in his absence the Upa-Sarpanch fails without sufficient cause, to hold any of such four meetings, 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; and the Secretary of the Panchayat shall also if, prima facie, found responsible for any lapse in convening such meeting, be liable to be suspended, and for being proceeded against, for such other disciplinary action as provided under the relevant rules.

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16. It is significant to note that Section 7 of the said Act contemplates that the action as contemplated under Section 7 is required to be taken only if there is a failure to convene the Gram Sabha within time limit and if such failure is without sufficient cause. In this particular case, even the investigation report (Sonography of the abdomen and pelvis) dated 29th June 2022 of

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the Petitioner, records the following opinion :-

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“ OPINION- *Bulky congested uterus noted with uterine f i broid *Mild fatty liver with tiny left calculus noted incidentally *Suggested clinical ; pathological correlation & follow up sos ”

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The medical papers and the medical certificate dated 26th May 2022 issued by Ashwini Hospital show the seriousness of the medical ailment of the Petitioner.

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17. The Petitioner has described her medical condition in paragraph 7 of the Writ Petition in the following manner :-

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“The Petitioner states that due to her serious illness during the period from 2nd May 2022 to 25th May 2022, and thereof, the Petitioner was unable to convene the Gram Sabha Meeting on/before 30th May 2022. It is submitted that the normally the duration of the Gram Sabha is approximately 2 to 3 hours and due to her serious illness, it was not possible by the Petitioner to seat for more that 10 to 15 minutes that too without pain . Since, the distance between the home of the Petitioner and the office of the Group Gram Panchayat Dahivali is hardly 1 km, and as such, on the request with insistence of the Gram Sevak and the Respondent No.4, the Petitioner visited the off i ce of Gram Panchayat twice or thrice during the period of her illness and signed some cheques for the urgent payments and immediately returned home. The Petitioner states and submits that the Respondent No.4 and and other members of the

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Respondent No.2 (i.e. Group Gram Panchayat Dahivali) were well aware about the serious and severe Health condition of the Petitioner .”

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(Emphasis added)

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18. It is further significant to note that, in fact, in view of the report of the Block Development Officer dated 29th June 2022 mentioning the health condition of the Petitioner and annexing the medical reports of the Petitioner, the Additional District Collector referred the same to the Civil Surgeon, Civil Hospital, Thane to constitute a committee of expert doctors and they also confirmed about the medical condition of the Petitioner. It is significant to note that although, Respondent No.1-the Additional District Collector herself referred the medical papers of the Petitioner to the Civil Surgeon and the committee of expert doctors appointed by the Civil Surgeon, Civil Hospital gave the report confirming the said medical condition, the Additional District Collector while giving the reasons, has completely ignored the said medical report. Thus, it is clear that the impugned Order is perverse.

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19. The Supreme Court in the case of Puri Investments V. Young Friends and Co. and Others.³ , in paragraph 14, has held as follows :-

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“It proceeded, on such observation being made, to opine

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3 2022 SCC OnLine SC 283

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that it was the duty of the supervisory Court to interdict if it was found that findings of the appellate forum were perverse. Three situations were spelt out in the judgment under appeal as to when a f i nding on facts or questions of law would be perverse .

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These are: —

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(i) Erroneous on account of non-consideration of material evidence , or

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(ii) Being conclusions which are contrary to the evidence , or

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(iii) Based on inferences that are impermissible in law .”

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(Emphasis added)

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20. Thus, it is clear that the impugned Order of the Additional District Collector suffers from perversity due to nonconsideration of material evidence. It is also clear that conclusions recorded by Respondent No.1-the Additional District Collector are contrary to the evidence.

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21. It is an admitted position that the said Gram Sabha was scheduled to be held on 20th June 2022 and since there was no quorum, the same was held on 27th June 2022 and it is not the case that the said Gram Sabha was never held. Section 7(1) of the said Act provides that such failure has to be without sufficient cause.

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22. It is to be noted that the disqualification of the Sarpanch is a very drastic action. In this particular case, the factual position on

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record clearly shows that sufficient cause is shown by the Petitioner for not conducting the Gram Sabha within the stipulated time limit. The explanation given by the Petitioner clearly specifies the sufficient cause for the same.

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23. It is significant to note that Section 7 of the said Act mandates that if the Gram Sabha is not convened by the Sarpanch, in his absence, the Upa-Sarpanch could have convened the Gram Sabha. In this particular case, the factual position clearly shows that Upa-Sarpanch, i.e., Respondent No.4Complainant was clearly aware that the Sarpanch was suffering from a serious medical condition and, therefore, he could have convened the Gram Sabha. The impugned Order specifies that the Sarpanch has acted negligently and that the Secretary of the Panchayat has also failed to perform his duty. It is significant to note that Respondent No.4-Upa-Sarpanch, i.e., the complainant is also responsible for convening the meeting. The Additional District Collector, Thane has not stated anything about the conduct of the Upa-Sarpanch in the impugned Order.

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24. This is a case where Respondent No.4, who is the UpaSarpanch instead of performing his statutory duty of convening the Gram Sabha in the absence of the Sarpanch, has filed a complaint with the Respondent No.1-the Additional District Collector against the Sarpanch. The factual position on record

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further clearly shows that the Petitioner was seriously ill and, therefore, could not convene the meeting and the Respondent No.4-Upa-Sarpanch has taken undue advantage of the medical condition of the Petitioner and filed the Gram Panchayat Case No.34 of 2022 before the Additional District Collector, Thane seeking disqualification of the Petitioner-Sarpanch from the post of Sarpanch.

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25. It is unfortunate that the Additional District Collector, who is acting as a quasi-judicial authority, has passed the impugned Order without even considering the material evidence. It is further significant to note that she has failed to notice that even the Upa-Sarpanch has failed to perform his statutory duties.

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26. Learned Counsel appearing for Respondent No.4 has relied on the decision of Gunwantrao Yeshwantrao Deshmukh (supra). However, the said decision will not apply to the present case. In the facts and circumstances of that case, it has been held that, there was no sufficient cause for failure to convene the meeting.

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27. Learned Counsel appearing for the Petitioner has relied on Manohar (supra) and, more particularly, on paragraphs 16 to 19 therein. The same read as under :-

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“16] The law on the subject i.e. disqualification of an elected member for not complying mandatory provisions is dealt with in the cases of Ravi Yashwant Bhoir Vs.

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District Collector, Raigad and others reported in [2012] 4 SCC 407 , Gangabai Vithal Bade Vs. State of Maharashtra & ors . Reported 2013 [3] Bom.C.R. 277 and Sunil Daulat Patil Vs. The State of Maharashtra & others in Writ Petition No.3419 of 2013, decided on 04.12.2013. The Hon’ble Supreme Court in the case of Ravi Yashwant Bhoir Vs. District Collector, Raigad and others reported in [2012] 4 SCC 407 has held at para nos.35, 36 and 37 as under:

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The elected off i cial is accountable to its electorate because he is being elected by a large number of voters. His removal has serious repercussions as he is removed from the post and declared disqualif i ed to contest the elections for a further stipulated period, but it also takes away the right of the people of his constituency to be represented by him . Undoubtedly, the right to hold such a post is statutory and no person can claim any absolute or vested right to the post, but he cannot be removed without strictly adhering to the provisions provided by the legislature for his removal (vide Jyoti Basu v. Debi Ghosal, MohanLal Tripathi v. District Magistrate, Rae Bareily and Ram Beti v. District Panchayat Raj Adhikari).

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In view of the above, the law on the issue stands crystallised to the effect that an elected member can be removed in exceptional circumstances giving strict adherence to the statutory provisions and holding the enquiry, meeting the requirement of principles of natural

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justice and giving an incumbent an opportunity to defend himself, for the reason that removal of an elected person casts stigma upon him and takes away his valuable statutory right. Not only the elected off i ce-bearer but his constituency / electoral college is also deprived of representation by the person of their choice .

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A duly elected person is entitled to hold off i ce for the term for which he has been elected and he can be removed only on a proved misconduct or any other procedure established under law like “no conf i dence motion”, etc. The elected off i cial is accountable to its electorate as he has been elected by a large number of voters and it would have serious repercussions when he is removed from the off i ce and further declared disqualif i ed to contest the election for a further stipulated period .

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17] This Court in the case of Gangabai Vithal Bade Vs. State of Maharashtra & ors. Reported 2013 [3] Bom.C.R.277 , it has been held at paras 4 and 5, as under:-

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No doubt, provisos of section 7 provided various other requirements of Gram Sabha meetings. In addition to section 7, there are rules made for providing procedure etc. of Gram Sabha meetings. Section 7 on the whole read with rules indicates that a Sarpanch or in his absence Upsarpanch should at least hold six meetings of Gram Sabha every financial year. Proviso and rules

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provided inter alia that maximum period of three months is permitted between two meetings of Gram Sabha. Sub-section (5) of section 7 further provides that meeting of women members of Gram Sabha should be held before the regular meeting of Gram Sabha. In addition to this, prescribed rules, namely, Bombay Village Panchayats Rules, 1959 further enjoins a Sarpanch to hold first meeting of Gram Sabha of every financial year within two months from the commencement of the year and second should be held in November every year. They further provide that Gram Sabha meeting should beheld also in August and January of every year. In my view, since the rule in respect of disqualification is mentioned in sub-section (1) and since it is a penal provision, strict construction is required to be given to it. Sub-section (1) clearly lays down a rule that only in case of failure to hold six Gram Sabha meetings, the Sarpanch would incur disqualification. Other requirements of meeting are not included in sub-section (1) and so incase of non observance of other requirements penal consequence of disqualif i cation is not incurred. In other words, if six meetings are held in one f i nancial year, but they were not held as per remaining provisions contained in section 7 or in the rules, a . Sarpanch may not incur disqualif i cation

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Second point that arose in this case is whether the petitioner / sarpanch incurred disqualification in case he did not give notice of

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meetings. Learned Assistant Collector held that because of want of notice, he incurred disqualification. The rules provided that sarpanch is responsible for giving seven days notice of each Gram Sabha meeting. It is observed that seven days notice for meetings was not given by the petitioner. The learned Assistant Collector held that because of this lapse the petitioner would incur disqualification. I am not in agreement with this ruling also. I would place reliance only on subsection (1) of section 7 when I would examine whether the petitioner incurred disqualif i cation. As said above, other lapses or infringement ofother rules and provisos, in my view will not incur drastic result of disqualif i cation . The petition, therefore, should succeed on merit. The impugned order stands set aside.

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18] In the case of Sunil Daulat Patil Vs. The State of Maharashtra & others in Writ Petition No.3419 of 2013, decided on 04.12.2013 it has been held as follows in para nos.14 and 15 :

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Upon careful perusal of the contents of the notice, which was issued to the petitioner under Sections 7 and 36 of the said Act, it is abundantly clear that there is no mention of any specific charges-points, which are required to be answered by the petitioner. This Court in the case of Pratiba Sanjay Hulle Vs. Additional Collector & others reported in 2010(4)Bom.C.R.700 , more particular, in para No. 36 held that, 'to enable Sarpanch to

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raise proper defence and explain sufficient cause for his failure toperform any statutory function, he must be informed essentially as regards his failure meaning thereby he must be communicated the specif i c charges .'

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In the facts of that case, the allegation was that the petitioner therein i.e. Sarpanch, did not perform his statutory obligation as envisaged under Sections 7 and 36 of the said Act. This Court taking into consideration the fact that the specific charges were not communicated to the petitioner therein, held that enquiry and the order passed against the petitioner therein is vitiated.

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19] Thus, from the judgments quoted above, it is made clear that an elected member is to be removed in exceptional circumstances and that he has to be explained the specific charge against him and also the elected member should be given an opportunity to explain sufficient cause for his failure to perform statutory duty. Mere non-performance of the statutory duty would not disqualify the elected member unless he is not able to give a good reason for non-performing of the statutory duty. Thus, non-performance of statutory duty does not lead to automatic disqualif i cation .”

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(Emphasis added)

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28. The observations in the above decisions are squarely applicable to the present case. It is further significant to note that, even though the Petitioner has been disqualified both as a

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Sarpanch and as a member, the factual position on record clearly shows that there are sufficient reasons for not convening the meeting within the time limit as prescribed by Section 7 of the said Act and the Additional District Collector has completely ignored the same.

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29. Therefore, for the above reasons, the impugned Order dated 28th December 2022 passed by the Additional District Collector, Thane in Gram Panchayat Case No.34 of 2022 is quashed and set aside and the said Gram Panchayat Case No.34 of 2022 is dismissed.

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30. The Writ Petition is allowed in above terms with no order as to costs.

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[MADHAV J. JAM3DAR, J.]

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Mrs. Kamini Kailas Dhule v. Additional District Collector and Ors.

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Mrs. Kamini Kailas Dhule v. Additional District Collector and Ors.

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