1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO. 5382 OF 2008. Murlidhar s/o Hari Patil. .... PETITIONER. VERSUS Yuvraj Vithal Patil and others. .... RESPONDENTS. ... Shri Sandeep S.Deshmukh, Advocate for Petitioner. Shri Vijay Sharma, Advocate for R.No.8 and 9. Smt. V.A. Shinde, A.G.P. for State. ... CORAM : S.S. SHINDE, J. DATE : 24th SEPTEMBER, 2009. PER COURT: 1. This petition is filed challenging the judgment and order dated 20th August, 2008 passed by the Additional Commissioner, Nashik Division, Nashik in Grampanchayat Appeal No.40/2008 thereby confirming the judgment and order dated 3rd May, 2008 passed by the Additional Collector, Jalgaon in Grampanchayat Complaint No.60/2007. 2. The learned Counsel for the petitioner submitted that the appellate authority simply 2 upheld the judgment and order dated 3rd May, 2008 without appreciating the contentions raised by the petitioner herein. Both the authorities erred in not appreciating that in fact, the Resolution No.5/2 dated 6th March, 2006 came to be passed only on an application which was preferred by the present original Complainant No.1. It is further submitted that both the authorities erred in not appreciating the conduct of the original complainant no.1. The authorities have not appreciated that in fact on first occasion the original complainant no.1 made an application to the petitioner seeking withdrawal of his half amount from the fixed deposit that too, on the ground of poverty and, on the second occasion when the said application of the original complainant no.1 came to be honoured, he made a complaint on 26.9.2007 seeking disqualification as per the provisions of section 14(g) of the Bombay Village Panchayats Act, 1958 (hereinafter referred to as the said Act), of the petitioner as well as other members. According to the learned counsel for the petitioner, even assuming for the sake of argument that the petitioner had 3 withdrawn the amount of fixed deposit, the same would not entail petitioner’s disqualification as per the provisions of section 14(g) of the said Act. On perusal of the provisions of section 14(g) of the said Act, it is amply clear that the same can be attracted by any member only on the grounds which are mentioned in the said provision. Even as per the findings recorded by both the authorities below, it is amply clear that they have not found the petitioner guilty of any conduct which will attract the provisions of section 14(g) of the said Act and even the said orders very specifically say that the petitioner is not having any share with regards to any of the shops in the Sant Tukdoji Maharaj Shopping Complex nor the petitioner is having any partnership with any person or any business or any share in any business which is being carried out in the shops of the said shopping complex. The learned Counsel further submitted that plain reading of the provisions of section 14(g) of the said Act would show that the same cannot be attracted in case of the petitioner. He 4 further submitted that from the findings recorded by the lower authorities, it is amply clear that they have not found the petitioner guilty of any conduct which will attract the the provisions of section 14(g) of the said Act. 3. The learned Counsel invited my attention to Exh.A at page 28 of the compilation and submitted that on the request of the shop holders who are also farmers, the decision was taken by the General Body Meeting to refund the amount invested in fixed deposit. According to the learned Counsel when the decision is taken in the monthly meeting dated 6th March, 2006 in presence of the members of the Gram Panchayat to refund the fixed deposit amount and in pursuant to that if the amount was withdrawn, it cannot be said that the provisions of section 14(g) of the said Act are attracted. The learned Counsel invited my attention to Exhs.B to D of the compilation of the writ petition and submitted that the decision was taken by the Gram Panchayat to refund the fixed deposit amount and if the decision is taken by the Gram Panchayat itself on the request of 5 the poor farmers and shop holders, and if the petitioner is beneficiary of the same in withdrawing the fixed deposit, no disqualification can be attracted as provided under the provisions of section 14(g) of the said Act. The learned Counsel invited my attention to the impugned judgment and order passed by the authorities below and submitted that as interpreted by the authorities themselves, the provisions of section 14(g) of the said Act are restricted only to the interest of the members. The learned Counsel invited my attention to the pleadings in the petition, grounds and annexures including the impugned judgments and orders, passed by the authorities below and submitted that the writ petition deserves to be allowed. 4. The learned Counsel Mr. Vijay Sharma appearing for some of the contesting respondents has supported the reasons recorded by the authorities below in the impugned judgments and submitted that the authorities below, on the basis of facts existing and the record available, have concurrently held that the petitioner is an 6 interested person and he has vested interest in the lease transactions of the Gram Panchayat. He further submitted that there is one shop out of 11 shops which is taken on lease by the petitioner himself in Old Vallabhabhai Patel Shoping Complex. The deposit was taken for 11 years and half of the amount of that deposit has been withdrawn by the petitioner. Therefore, the learned Counsel for respondents would submit that the case of the petitioner squarely falls under the provisions of section 14(g) of the said Act and, therefore, the authorities have passed appropriate orders and no interference is called for under the writ jurisdiction. 5. The learned A.G.P. invited my attention to the findings recorded by the authorities and submitted that when the petitioner himself had taken one shop on lease out of 11 shops and also withdrew 50% of the amount which was deposited for the period of 11 years, contrary to the interest of the Gram Panchayat, the petitioner is disqualified to be continued as a member and Sarpanch of the Gram Panchayat. Therefore, the 7 learned A.G.P. submitted that the writ petition may be dismissed. 6. I have heard the learned Counsel for the petitioner, the learned Counsel appearing for respondents as well as the learned A.G.P. for the State – authorities and perused the petition, annexures thereto including impugned judgments and orders passed by the authorities below and I am of the considered view that the writ petition is devoid of any merits. On perusal of the impugned judgment and order passed by the Additional Collector, Jalgaon dated 3rd May, 2008, it clearly appears that the present petitioner who is original respondent no.1 has one shop in his name in the Old Vallabhabhai Patel Shopping Complex owned by the Gram Panchayat. The amount which was deposited against the said shop was to be returned by the Gram Panchayat after 11 years as per the lease agreement. There are in all 11 shops in the said complex in which one shop is in the name of the petitioner. All 11 shop holders filed application with the present petitioner who is holding post of Sarpanch, and the Gram 8 Panchayat has passed a resolution No.5/2 on 6th March, 2006 to return half of the amount deposited in J.D.C.C. Bank, Ainpur to the shop holders. The Additional Collector has further observed that the necessary inquiry was done by the Enquiry Officer and according to the report submitted by the Enquiry Officer, Gram Panchayat has sustained loss of Rs.1,73,750/-. The Additional Collector has further observed that the petitioner herein who is original respondent no.1 is also beneficiary in receiving half of the amount deposited which was kept for 11 years. The Additional Collector has further observed that the said shop is taken by the petitioner for eleven years’ lease and out of the amount which was deposited for eleven years, half of the amount has been withdrawn before time. Therefore, the Additional Collector has observed that the petitioner herein is original respondent no.1 and is directly interested since he has taken one shop on lease for 11 years and, therefore, he is disqualified to be continued as a member of the said Gram Panchayat as per the provisions of section 14(g) of the said Act and 9 as such, he cannot be continued to be the member of Gram Panchayat and his seat falls vacant. 7. The Additional Commissioner, Nashik Division, Nashik upheld the judgment and order passed by the Additional Collector, Jalgaon. The Additional Commissioner has also recorded in last paragraph of his judgment that the original appellant / petitioner herein has taken one shop on lease for 11 years out of 11 shops from the Gram Panchayat in Old Vallabhabhai Shopping Complex owned by the Gram Panchayat and decision is taken to return half of the amount deposited to 11 shop owners and, therefore, he is an interested person in the lease agreement entered by the Gram Panchayat with 11 shop holders. 8. On careful perusal of the judgments and and orders passed by the authorities below, it is clear that the petitioner who is original appellant is interested person in the lease agreement entered with the Gram Panchayat, since one shop is in his name. Both the authorities have taken a note of the report of the Enquiry 10 Officer that in view of the decision taken by the Gram Panchayat, of which the petitioner is Sarpanch, the Gram Panchayat has sustained loss of Rs.1,73,750/-. Both the authorities have recorded findings that the petitioner has taken one shop out of 11 shops on lease from the Gram Panchayat and he is an interested person. On plain reading of the provisions of section 14(g) of the said Act, it is clear that the case of the present petitioner is squarely covered since he is an interested person by virtue of lease agreement in respect of one shop in his name for 11 years. The petitioner who is holding the post of Sarpanch of the Gram Panchayat, is an interested person and beneficiary of the decision to refund 50% of amount deposited for 11 years by the shop holders thereby putting loss to the Gram Panchayat. It would not be out of place to mention that the petitioner, who is member of the Gram Panchayat and holding responsible post of Sarpanch, should have given utmost importance to the interest of the Gram Panchayat rather than protecting his own interest. Therefore, the authorities below have rightly concluded that the 11 petitioner is not qualified to be continued as a member / Sarpanch of the Gram Panchayat. 9. Therefore, in my considered view, the view taken by the Additional Collector, Jalgaon and confirmed by Additional Commissioner, Nashik is reasonable and possible view and, therefore, no interference is warranted. 10. Writ Petition is dismissed. Ad interim relief granted by this Court stands vacated. At this stage, the learned Counsel for the petitioner requests for further continuation of the ad interim relief. The request is refused. Authenticated copy of this order be given to the Counsel for the parties. [ S.S. SHINDE, J ] ...