Dismissed

Shrikrishna Sukhdev Solanke and Others v. the Divisional Commissioner, Amravati Division, Amravati and Others

Bombay HC11 Sept 2023WP/1277/2023

Case brief

AI extract

What is this about?

The High Court of Judicature at Nagpur disposed of two writ petitions challenging an enquiry report under Section 39(1) of the Maharashtra Village Panchayats Act, 1959. The Court held that challenging the report was premature while the Divisional Commissioner had jurisdiction to examine the enquiry's validity.

What did the court decide?

Writ Petition No.5879 of 2023 dismissed; Writ Petition No.1277 of 2023 disposed of with no order as to costs.

Shrikrishna Sukhdev Solanke and Others Vs the… — Pension and Retirement Benefits | Bombay HC (2023)

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2023:BHC-NAG:13428-DB

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1 WP-5879 with 1277 of 2023.odt

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

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Writ Petition No.5879 of 2023

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With

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Writ Petition No.1277 of 2023

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Writ Petition No.5879 of 2023

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Rahul S/o Vasantrao Arkhaarao,

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Aged about 39 years,
Occu.: Agriculturist,
R/o At Po Rajanda,
Tq. Barshitakli, Dist. Akola,
Presently at Nagpur.… Petitioner

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Versus

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1.The Divisional Commissioner ,

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Amravati Division, Amravati.

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2.Zilla Parishad, Akola ,

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through its Chief Executive Officer, District Akola.

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3.Block Development Officer , Panchayat Samiti Barshitakli, Dist. Akola.

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4.Village Development Officer , Gram Panchayat Rajanda, Tah. Barshitakli, Dist. Akola.

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5.Shrikrishna Sukhdev Solanke ,

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Aged 64 years,

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Occ.: Agriculturist/Up-Sarpanch,

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Gram Panchayat Rajanda.

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2 WP-5879 with 1277 of 2023.odt

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6.Raju S/o Uttamrao Solanke ,

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Aged about 47 years,

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Occu.: Ex-Sarpanch,
Gram Panchayat Rajanda.

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7.Vijay S/o Kisan Bhagewar ,

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Aged about 33 years,
Occ.: Member,

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Gram Panchayat Rajanda.

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8.Jaya Prabhakar Kale ,

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Aged about 40 years,
Occ.: Member,
Gram Panchayat Rajanda.

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9.Karuna Dhyandepo Arkharao ,

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Aged about 51 years,
Occ.: Member,
Gram Panchayat Rajanda.

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10.Varsha Ramdas Solanke ,

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Aged about 45 years,
Occ.: Member,

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Gram Panchayat Rajanda.

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All Nos.1 to 6 R/o Rajanda,
Tah. Barshitakli, Dist. Akola.… Respondents

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Shri S.D. Chopde, Counsel for Petitioner.

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Shri A.S. Fulzele, Additional Government Pleader for Respondent
No.1.

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Shri N.M. Kolhe, Counsel for Respondent Nos.2 to 4.

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3 WP-5879 with 1277 of 2023.odt

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With

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Writ Petition No.1277 of 2023

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1.Shrikrishna Sukhdev Solanke ,

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Aged about 64 years,
Occ.: Agriculturist/Upsarpanch,
Gram Panchayat Rajanda.

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2.Raju S/o Uttamrao Solanke ,

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Aged about 47 years,
Occ.: Ex-Sarpanch,
Gram Panchayat Rajanda.

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3.Vijay S/o Kisan Bhagewar ,

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Aged about 33 years,
Occ.: Member,
Gram Panchayat Rajanda.

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4.Jaya Prabhakar Kale ,

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Aged about 40 years,
Occ.: Member,
Gram Panchayat Rajanda.

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5.Karuna Dhyandeo Arakharao ,

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Aged about 51 years,

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Occ.: Member,
Gram Panchayat Rajanda.

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6.Varsha Ramdas Solanke ,

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Aged about 45 years,
Occ.: Member,
Gram Panchayat Rajanda.

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All Nos.1 to 6 R/o Rajanda,
Tah. Barshitakli, District Akola.… Petitioners

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Versus

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1.The Divisional Commissioner , Amravati Division, Amravati.

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2.Zilla Parishad, Akola ,

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through its Chief Executive Officer,
District Akola.

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3.Block Development Officer , Panchayat Samiti Barshitakli, District Akola.

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4.Village Development Officer , Gram Panchayat Rajanda,

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Tah. Barshitakli, Distt. Akola.

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5.Rahul Vasantrao Arakharao ,

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Aged Major, Occu. Sarpanch, Gram Panchayat Rajanda,

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Tah. Barshitakli, Distt. Akola.

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6.State of Maharashtra ,

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through its Secretary,

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Rural Development Department,

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Mantralaya, Mumbai-32.… Respondents

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Shri Ram Karode, Counsel for Petitioners.

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Shri A.S. Fulzele, Additional Government Pleader for Respondent
Nos.1 and 6.

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Shri N.M. Kolhe, Counsel for Respondent Nos.2 to 4.

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Shri S.D. Chopde, Counsel for Respondent No.5.

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CORAM : A.S. CHANDURKAR & MRS. VRUSHALI V. JOSHI, JJ.

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Date when arguments were heard : 6th September, 2023.
Date when the order was pronounced : 11th September, 2023.

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ORDER (PER A.S. CHANDURKAR, J.) :

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1.Both the writ petitions have been heard together considering
the nature of challenge as raised therein.

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2.The petitioner in Writ Petition No.5879 of 2023 has been
elected as Sarpanch of Gram Panchayat Rajanda, Taluka Barshitakli,
District Akola. The respondent Nos.5 to 10 in the said writ petition
who are the petitioners in Writ Petition No.1277 of 2023 filed
proceedings under Section 39 of the Maharashtra Village Panchayats
Act, 1959 (for short, ‘the Act of 1959’) on 3-1-2023 seeking
disqualification of the Sarpanch. On such proceedings being filed
before the Divisional Commissioner, Amravati a communication
dated 10-1-2023 was issued by the Divisional Commissioner to the
Chief Executive Officer, Zilla Parishad, Akola to conduct an enquiry as
contemplated by Section 39(1) of the Act of 1959 and submit a report
in that regard. On receiving this communication, the Chief Executive
Officer on 20-1-2023 issued a communication to the Block
Development Officer, Panchayat Samiti, Barshitakli to obtain all
relevant information from the concerned parties and after making an
enquiry submit a report in that regard. It was further stated that such
report/say was directed to be filed on 3-2-2023. Acting on the
aforesaid communication, the Block Development Officer called upon

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the Sarpanch to submit his say in the said matter with a view to
conduct necessary enquiry.

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3.The communication dated 20-1-2023 issued by the Chief
Executive Officer to the Block Development Officer as well as the
subsequent communication dated 20-2-2023 issued by the Block
Development Officer have been challenged by the complainants on the
ground that the enquiry contemplated under Section 39(1) of the Act
of 1959 is to be conducted by the Chief Executive Officer himself and
the power in that regard cannot be delegated to any other officer
below the rank of Chief Executive Officer. While issuing notice in Writ
Petition No.1277 of 2023, the communications dated 20-1-2023 as
well as 20-2-2023 came to be stayed. Thereafter on 13-6-2023, the
Block Development Officer submitted his report to the Deputy Chief
Executive Officer with regard to the aforesaid proceedings under
Section 39(1) of the Act of 1959. On receiving the said report, the
Chief Executive Officer forwarded the entire record to the Divisional
Commissioner by his communication dated 26-6-2023.

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4.In the aforesaid factual backdrop, Shri S.D. Chopde, learned
counsel for the Sarpanch, submitted that the enquiry report
dated 26-6-2023 as submitted by the Chief Executive Officer was
liable to be set aside since such enquiry had been conducted by an
officer who was not empowered to do so. The enquiry in question
having been conducted by the Block Development Officer and the
same having been forwarded to the Chief Executive Officer, it was

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clear that the Chief Executive Officer himself did not conduct the
enquiry as required by Section 39(1) of the Act of 1959. The
Divisional Commissioner was therefore not entitled to consider the
enquiry report dated 26-6-2023 in the proceedings under
Section 39(1) of the Act of 1959 and such report was liable to be set
aside. In that regard, the learned counsel placed reliance on the
decisions of this Court in Writ Petition No.5609 of 2022 (Sau. Aarti
W/o Khushal Tavar Versus Chief Executive Officer, Zilla Parishad,
Washim and others) decided on 15-11-2022, Writ Petition No.7158 of
2017 (Shalik S/o Bolan Dahiwale Versus State of Maharashtra and
others) decided on 6-10-2018 as well as the decision in Ankush s/o
Pandurang Shinde Versus The State of Maharashtra and others
[2022(3) ALL MR 56]. It was thus submitted that after quashing the
enquiry report dated 26-6-2023, a direction be issued to the Chief
Executive Officer to himself conduct the enquiry as required by
Section 39(1) of the Act of 1959.

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5.Shri Ram Karode, learned counsel for the complainants,
opposed the aforesaid submissions. According to him, after the
communications dated 20-1-2023 and 20-2-2023 were challenged by
the complainants and the said communications were stayed, the Chief
Executive Officer had himself conducted such enquiry and had
submitted his report to the Divisional Commissioner. The enquiry
report dated 26-6-2023 could not be said to be vitiated on the ground
that the enquiry was conducted by the Block Development Officer.

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The Block Development Officer had merely collected the basic
material to enable the Chief Executive Officer to conduct his enquiry.
He further submitted that this position was clear from the
affidavit-in-reply filed by the Chief Executive Officer in Writ Petition
No.1277 of 2023. It was then submitted that the challenge raised by
the Sarpanch to the enquiry report dated 26-6-2023 was premature
for the reason that the Divisional Commissioner was empowered to
consider the validity of the enquiry report. The Sarpanch could
challenge the enquiry report before the Divisional Commissioner and
raise these contentions while defending the proceedings under
Section 39(1) of the Act of 1959. There was no reason to entertain
such challenge at this stage since the proceedings under Section 39(1)
of the Act of 1959 were pending before the Divisional Commissioner.
In that regard, the learned counsel sought to rely upon the judgment
of the Hon’ble Supreme Court in Indermani Kirtipal Versus Union of
India and others (AIR 1996 SC 1567) as well as the order passed by
this Bench in Writ Petition No.3857 of 2023 (Dipak Ambadas Gavai
and others Versus The Divisional Commissioner, Amravati Division,
Amravati and others) dated 6-7-2023. He further submitted that the
writ petition filed by the Sarpanch was liable to be dismissed.

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6. Having heard the learned counsel for the parties and having

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perused the documents on record, we are not inclined to examine the
challenge raised to the enquiry report dated 26-6-2023 at this stage
for the following reasons :-

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(a)The proceedings under Section 39(1) of the Act of 1959
seeking disqualification of the Sarpanch are pending before the
Divisional Commissioner.

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(b)Under Section 39(1) of the Act of 1959, the Divisional
Commissioner is empowered to consider as to whether the
enquiry as contemplated by the said provisions has been
conducted by the Chief Executive Officer as required. If it is
demonstrated by the party challenging such enquiry report that
the enquiry is not conducted in accordance with the said
provisions, the Divisional Commissioner has the necessary
jurisdiction to take a decision in that regard. If he is satisfied
that such enquiry is not conducted in accordance with the
statutory requirements, he has the jurisdiction to ignore or
refuse to rely upon such enquiry report. This exercise is not yet
undertaken by the Divisional Commissioner.

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(c)Since the right of the party facing proceedings under
Section 39(1) of the Act of 1959 is not taken away and as all
possible defences are available for being raised in the said
proceedings, the challenge to the enquiry report at this stage
would be premature. This aspect has been considered in Dipak
Ambadas Gavai and others (supra) decided by this Bench.

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7.Since we find that it is permissible for the Sarpanch in the
present case to raise an appropriate challenge to the enquiry report
dated 26-6-2023 in the proceedings that are pending before the
Divisional Commissioner under Section 39(1) of the Act of 1959, we
are not inclined to entertain the said challenge on merits. Keeping all
points raised in Writ Petition No.5879 of 2023 open for being raised

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before the Divisional Commissioner, the said writ petition stands
dismissed.

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8.Since the purpose of filing Writ Petition No.1277 of 2023 stands
served in the light of the stand of the complainants that a fresh
enquiry report has been now submitted by the Chief Executive Officer
on 26-6-2023, it is not necessary to keep the present writ petition
pending. It is also disposed of.

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9. It is clarified that it would be open for the complainants to defend the proceedings filed by them under Section 39(1) of the Act of 1959 on all permissible grounds.

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10. Both the writ petitions are disposed of with no order as to costs.

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(MRS. VRUSHALI V. JOSHI, J.) (A.S. CHANDURKAR, J.)

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LANJEWAR

Shrikrishna Sukhdev Solanke and Others v. the Divisional Commissioner, Amravati Division, Amravati and Others

Case brief

What is this about?

What did the court decide?

Shrikrishna Sukhdev Solanke and Others v. the Divisional Commissioner, Amravati Division, Amravati and Others

Case brief

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What did the court decide?

What the court decided

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