-: 1 :- wp-7765/11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7765 OF 2011 Ladakbhai J. Mishal. ..Petitioner. Versus Kamlakar G. Kharpadia & Ors. ..Respondents. Mr. Mahesh Jethmalani, Senior counsel with Mr. B. D. Joshi for the petitioner. Mr. A. A. Kumbhakoni with Mr. Amit Gatne for R-1. Mr. L. M. Acharya i/b S. Achary for R-2 & 3. Mr. Girish Kulkarni i/b Mr. Deshmukh for R-4 to 8. Coram : RANJIT MORE, J. Date : September 27, 2011. P. C. : 1. Heard learned counsel for the respective parties. By this petition filed under Article 227 of the Constitution of India, the petitioner is challenging the order passed by respondent no.8 – Development Commissioner, whereby his appeal under section 26(1) of the Dadra & Nagar Haveli Village Panchayats Regulation, 1965 [for short “the said Regulations”] came to be dismissed. 2. The case of the petitioner is as follows : . Khanvel Group Grampanchayat consists of 11 members. In the general election held on 2/11/2010, six members belonging to BJP were elected and five members from srp -: 2 :- wp-7765/11 Congress Party got elected. The petitioner and respondent nos. 1 to 3 are from BJP. The petitioner was elected as Sarpanch and respondent no.1 was elected as Upa-Sarpanch. Under the said Regulations, Sarpanch can be removed by passing resolution by not less than 2/3rd majority. . It is further case of the petitioner that Congress Party anyhow wanted to gain control over Khanvel group grampanchayat and therefore they decided to win over three members, i.e., respondent nos.1 to 3 belonging to BJP for monetary consideration. . It is the specific case of the petitioner that on 22/5/2011, one Mr.Rakesh Chauhan, leader of JD(U) in collusion with Congress Party took away respondent nos.1 to 3 from their residences and kept them in hotel Prithviraj at village Naroli. This fact was verified by Police Officers on 4/6/2011. On 6/6/2011 respondent nos.1 to 3 approached the petitioner and told him that they would continue to support him, but they have received Rs.5 lacs each from Mr. Rakeshbhai Chauhan and will not go with the Congress Party if the petitioner is ready to pay each of them Rs.7 lacs. . On 14/6/2011, the petitioner filed application in the Court -: 3 :- wp-7765/11 of respondent no.5 seeking removal of respondent nos.1 to 3 for the misconduct committed by them as members of group grampachayat Khanvel. Respondent no.5 transferred the said dispute to respondent no.8. Petitioner also prayed for re- election of Wards from which respondent nos.1 to 3 were elected. . On 18/6/2011, the Panchayat Secretary of Khanvel group grampanchayat issued notice to all the members of Khanvel group grampanchayat to remain present on 24/6/2011 for passing of No-Confidence Motion against the petitioner – Sarpanch. Thereafter on 20/6/2011, the petitioner approached this Court by filing writ petition, being W.P. No. 4593 of 2011, seeking direction to respondent no.8 to conduct enquiry in the matter of removal of respondent nos.1 to 3 expeditiously. This Court on 23/6/2011 disposed of the said writ petition by directing respondent no.8 to take decision within a period of six weeks. The meeting, which was scheduled to take place on 24/6/2011 to consider the no-confidence motion against the petitioner, was permitted to be held. Respondent nos.1 to 3 were allowed to participate in the meeting, however, their votes were directed to be kept in separate ballot box; the result of the voting was directed to be declared without -: 4 :- wp-7765/11 counting votes of respondent nos.1 to 3. This arrangement was directed to be continued till the decision by respondent no.8 on the application filed by the petitioner under section 26 of the said Regulations. Thereafter, Respondent no.8, as stated above, has passed the order impugned in this petition whereby the petitioner’s application is rejected. 3. Mr. Jethmalani, learned senior counsel submitted that in order to support his application under section 26 of the said Regulations, the petitioner has relied upon letters signed by respondent nos.1 to 3. Under the said letters, according to Mr. Jethmalani, these respondents have admitted that they have received an amount of Rs.5 lacs each from said Rakeshbhai Chauhan to support Congress Party. These letters alongwith samples of handwriting of respondent nos.1 to 3 were sent for fingerprint analysis by the police. Respondent no.8, however, without waiting for the result of handwriting experts’ analysis, merely on the basis of police report disposed of the petitioner’s application. He submitted that subsequent to the date of passing of order by respondent no.8, the report of handwriting expert is received by respondent no.8. Copies of the said report have been tendered in this Court also. He submitted -: 5 :- wp-7765/11 that this report discloses that signature of at least one of the respondents tallies with the signature on said letters admitting that respondent nos.1 to 3 have received an amount of Rs.5 lacs each. In these circumstances, he submitted that the matter is required to be remanded to respondent no. 8 for decision afresh. He further submitted that in the meanwhile till date, the said application is decided by respondent no.8, arrangement made by the Division Bench vide its order dated 23/6/2011 passed in W.P. No. 4593 of 2011 may be continued. In support of his contention, he heavily relied upon the case of Rajendra Singh Rana and Ors v. Swami Prasad Maurya [AIR 2007 SC 1305]. 4. Mr. Kumbhakoni, learned counsel appearing on behalf of respondent no.1, on the contrary, supported the impugned order. He submitted that impugned order is passed on the basis of report of police chief. The finding of fact is recorded by respondent no.8 that there is no evidence to establish allegations of bribery against respondent nos.1 to 3. Regarding receipt of report of handwriting expert subsequent to the date of passing of impugned order, he submitted that same is not conclusive and therefore cannot be relied upon. He submitted -: 6 :- wp-7765/11 that in case this Court is inclined to remand the matter back taking into consideration the fact that report of handwriting expert is received subsequent to the date of passing of impugned order, no interim orders are required to be passed or at any rate there is no need to continue with the arrangement made by the Division Bench of this Court vide its order dated 23/6/2011 passed in W.P. No. 4593 of 2011. In support of his contentions he relied upon following cases : (i) AIR 1967 SC 112 [Mool Chand Sharma vs. State of U.P.], (ii)(2001) 6 SCC 260 [Tarlochan Dev Sharma vs. State of Punjab & Others]. 5. Having considered the submissions of learned counsel for the respective parties and having gone through the compilation of writ petition and annexures thereto, replies filed by the respondents, provisions of law and ratio of case laws relied upon by the learned counsel, I am of the view that the matter deserves to be remanded to respondent no.8 for decision afresh and there is no need to pass any interim order or continue with the arrangement made by the Division Bench vide its order dated 23/6/2011 passed in W.P. No. 4593 of 2011. -: 7 :- wp-7765/11 6. In order to decide the controversy raised in the petition, it would be relevant to re-produce Section 26 of the said Regulations, which reads thus : “26(1) Such authority as may be specified by notifications by the Administrator may, after giving due notice to the Panchayat and after such inquiry as such authority thinks fit, remove from office any member (including the Sarpanch or Upa-Sarpanch) of a Panchayat who has been guilty of misconduct or neglect of duty or persistent remissness in the discharge of his duties; and the member so removed shall not be eligible for re-election during the remainder of the term of the Panchayat. (2) Any person who has been removed from his office by the authority referred to in sub-section (1) may, within thirty days from the date of this order, prefer an appeal to the Administrator who may, after giving the appllicant an opportunity of being heard, modify, set aside or confirm the order of removal. (3) The order of removal passed by the authority referred to in sub-section (1) shall not take effect before the period during which an appeal may be preferred under sub-section (2) has expired. (4) An order passed by the Administrator on appeal shall be final. (5) Where an appeal has been filed under sub-section (2), the Administrator may stay the operation of the -: 8 :- wp-7765/11 order of the authority referred to in sub-section (1) till the appeal is disposed of.” 7. The petitioner has made an application under section 26 of the said Regulations. This section makes provision for removal of member of Grampanchayat who has been guilty of misconduct or neglect of duty or persistent remissness in the discharge of his duties. The petitioner has alleged that respondent nos.1 to 3 are guilty of misconduct inasmuch as they have accepted bribe of Rs.5 lacs each from Mr. Rakeshbhai Chauhan, leader of JD(U) in order to vote in favour of No-Confidence Motion against the petitioner. If the petitioner succeeds in establishing that respondent nos.1 to 3 have accepted illegal gratification to dispel the petitioner as Sarpanch, respondent nos.1 to 3 can be said to be guilty of misconduct. 8. The petitioner in order to prove his allegation mainly relied upon the letters written by these respondents whereunder it is alleged that they have admitted their guilt. These letters, of course, are denied by respondent nos.1 to 3. Therefore, these letters alongwith samples of handwritings of -: 9 :- wp-7765/11 respondent nos.1 to 3 were sent for fingerprint analysis. In my view, respondent no.8 ought to have waited for the opinion of handwriting expert. However, on the basis of police report, he concluded that there is no evidence to substantiate the allegations against respondent nos.1 to 3 and dismissed the petitioner's application under section 26 of the said Regulations. As stated above, after passing of the impugned order, the report of the handwriting expert is received. In my opinion, the handwriting expert’s report is important piece of evidence, which is required to be taken into consideration to ascertain whether respondent nos. 1 to 3 are guilty of misconduct. For that purpose matter deserves to be remanded to respondent no.8 to take decision afresh after considering the handwriting expert’s opinion. 9. So far as interim relief is concerned, Mr. Jethmalani, learned senior counsel appearing for the petitioner invited my attention to the order dated 23/6/2011 passed by the Division Bench in W.P. No. 4593 of 2011. He pointed out that in pursuant to this order, the meeting scheduled on 24/6/2011 to consider No-Confidence Motion against the petitioner was held, respondents nos.1 to 3 were allowed to participate in the -: 10 :- wp-7765/11 said meeting and their votes are kept in separate ballot boxes. Mr. Jethmalani, in support of his contentions relied upon the case of Rajendra Singh Rana and Ors v. Swami Prasad Maurya [AIR 2007 SC 1305], more particularly paragraph no. 34 thereof and submitted that in case respondent nos.1 to 3 are removed under section 26 of the said Regulations, said removal will operate retrospectively from the date on which disqualification is incurred. I do not find any merit in the contention of Mr. Jethmalani in this regard. The ratio of Rajendra Singh’s case, in my view, may not be applicable to the facts and circumstances of the present case, as that case arose out of the provisions of 10th Schedule of Constitution. There are no similar provisions in the said Regulations of 1965. 10.Under sub-section(3) of sec. 26, it is provided that removal under sub-sec.(1) will not take effect before the period during which appeal may be preferred under sub-section(2) has expired. Sub-section(5) of the said section speaks about the power of appellate authority to grant stay to the operation of order passed under sub-section(2). The conjoint reading of sub -sections(3) & (5) makes it clear that the order passed under sub-section(1) of sec. 26 is prospective in nature and under no -: 11 :- wp-7765/11 circumstances it can be said to operate retrospectively. In this regard, Mr. Kumbhakoni, learned counsel for respondent no.1 rightly placed reliance on the cases of Mool Chand (supra) and Tarlochan Dev Sharma (supra). In Mool Chand’s case, No confidence Motion was moved against the appellant therein who was the President by written notice dated 4/1/1961 by 9 members of the Board, including Ram Nath and Kesho Ram Gupta. The meeting of the Board took place on 6/2/1961 and all the ten members, who were present, voted for No- confidence motion and No-confidence motion was accordingly carried. The appellant, the President of Board, contended that requisition of meeting delivered to the District Magistrate was invalid inasmuch as Ram Nath and Kesho Ram Gupta who had signed the notice and took part in the proceedings of No- confidence motion had incurred disqualification prior to 4/1/1961 inasmuch as they were in arrears of payment of municipal taxes. The Apex Court observed that member of the Board of Municipality does not automatically come under suspension or lose his right to take part in the proceedings of the Board or perform the duties of a member or cease to be a member of the Board merely on his incurring any of the disqualifications. It was further held that even if Ram Nath and -: 12 :- wp-7765/11 Kesho Ram Gupta had incurred disqualification under clause (g) of section 13D of the said Act, they were not incompetent to exercise their rights as members of the Board and could therefore validly sign the notice of motion of no confidence and take part in the proceedings of the meeting. The ratio of this case is squarely applicable to the case in hand. In the present case also, respondent nos.1 to 3 are not, as on today, removed and in any case removal will be prospective, which will not affect the proceedings of no confidence motion held on 24/6/2011. 11. The observations of the Apex Court in paragraph 7 of Tarlochan Dev Sharma (supra) are also very important, which are reproduced below: “In a democracy governed by rule of law, once elected to an office in a democratic institution, the incumbent is entitled to hold the office for the term for which he has been elected unless his election is set aside by a prescribed procedure known to law. That a returned candidate must hold and enjoy the office and discharge the duties related therewith during the term specified by the relevant enactment is a valuable statutory right not only of the returned candidate but also of the constituency or the electoral college which he -: 13 :- wp-7765/11 represents. Removal from such an office is a serious matter. It curtails the statutory term of the holder of the office. A stigma is cast on the holder of the office in view of certain allegations having been held proved rendering him unworthy of holding the office which he held.” 12. In the context of present case, the provisions of Maharashtra Co-operative Societies Act, 1960 and decision of Division Bench of this Court in Keshaorao vs. District Dy. Registrar, Co-operative Socities, Akola and others [1987 Mh.L.J. 709] would be relevant. Section 73FF prescribes the subjects of disqualification of members of the managing committee. Section 78 of the MCS Act, 1960 speaks about suppersession of the managing Committee or member thereof. The Division Bench after considering these provisions came to the conclusion that section 73FF does not operate automatically, and for that purpose order under section 78 is required to be passed. There is no reason why the principle laid down in this case should not be made applicable to the facts and circumstances of the case in hand. 13. In the light of aforesaid discussion, in my opinion, in sum -: 14 :- wp-7765/11 and substance even if respondent nos.1 to 3 are removed from the membership of grampanchayat, their removal will not operate retrospectively. Removal will not affect the proceedings of no confidence motion already held. Therefore, I find that there is no need to give any interim relief in the form of order of Division Bench passed in W.P. No. 4593 of 2011 on 23/6/2011. In the circumstances, petition is disposed of by passing following order. (i) The impugned order is quashed and set aside. (ii) Matter is remanded to respondent no.8 to take decision afresh in the light of report given by handwriting expert. (iii) Respondent no.8 shall decide the application of the petitioner filed under section 26 of the said Regulations as expeditiously as possible and preferably within six weeks from the date of receipt of a copy of this order. (iv) Interim order granted by this Court on 21st September 2011 stands vacated. (RANJIT MORE, J.)