1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.5521 OF 2009 Sau. Asha w/o Pramod Tale, R/o-Khudaj, Tq-Sengaon, Dist-Hingoli. ...PETITIONER. VERSUS 1) The State of Maharashtra, Through its Secretary, Gram Vikas and Jal Sandharan Mantralaya, Mumbai, 2) Additional Collector, Hingoli, Dist-Hingoli, 3) Gram Vikas Adhikari, Panchayat Samiti Office, Sengaon, Tq-Sengaon, Dist-Hingoli, 4) Block Development Officer, Panchayat Samiti Office, Sengaon, Tq-Sengaon, Dist-Hingoli, 5) Ganesh s/o Ramrao Dongar, R/o-Khudaj, Tq-Sengaon, Dist-Hingoli. 6) Kavita w/o Pandurang Rahate, R/o-Khudaj, Tq-Sengaon, Dist-Hingoli. 2 7) Prabhawai w/o Sopan Zade, R/o-Khudaj, Tq-Sengaon, Dist-Hingoli. 8) Suresh s/o Pannalal Mundada, R/o-Khudaj, Tq-Sengaon, Dist-Hingoli. 9) Sahebrao s/o Dajiba Tale, R/o-Khudaj, Tq-Sengaon, Dist-Hingoli. 10) Ganesh s/o Kisan Ubale, R/o-Khudaj, Tq-Sengaon, Dist-Hingoli. 11) Chief Executive Officer, Zilla Parishad Hingoli. ...RESPONDENTS. ... Mr.B.S. Kudale Advocate for Petitioner. Mr.N.B. Patil, A.G.P. for Respondent Nos. 1 & 2. Mr.S.R. Yadav Advocate for Respondent Nos. 4 and 11. Mr.A.G. Talhar Advocate for Respondent Nos. 8 and 9. ... CORAM: K.K. TATED, J. DATE : 8TH OCTOBER, 2009. PER COURT : 1. With the consent of the learned counsel for the 3 parties, matter is taken up for final hearing. Rule. Rule made returnable forthwith and matter is heard finally at the stage of admission. 2. By this Petition under Articles 226 and 227 of the Constitution of India, the Petitioner challenges the Judgment and order passed by the Additional Collector, Hingoli in proceeding No.GPN/2008/A/21 dated 28th July, 2009 holding that the Petitioner has violated the provisions of Section 7 and 36 of the Bombay Village Panchayats Act, 1958 and therefore declared the Petitioner as disqualified to be Member of Gram Panchayat for remaining period. 3. Respondent Nos. 5 to 10 filed complaint dated 3rd June, 2008 before the Additional Collector, Hingoli under Section 7 and 36 of the Bombay Village Panchayats Act, 1958 for declaring the Petitioner as disqualified Member of Gram Panchayat. Respondent Nos. 5 to 10 stated in their complaint that the Petitioner failed to hold statutory meetings as required by law. Pursuant to the said complaint, the 4 authority issued notice to the Petitioner calling upon her to explain the complaint filed by Respondent Nos. 5 to 10. In reply to the said notice, the Petitioner filed reply dated 24th February, 2009 and denied the allegations made by Respondent Nos. 5 to 10 about not holding statutory meetings as per law. The Petitioner in her reply dated 24th February, 2009 specifically stated in Para 6, 7 and 8 that the allegations made by Respondent Nos.5 to 10 in their complaint are false and the complaint is filed just to harass the Petitioner. The Petitioner specifically stated in her reply that from time to time she held statutory meetings as required by the law within time and therefore there is no question of taking any action against her for violating Section 7 and 36 of the Bombay Village Panchayats Act, 1958. 4. Learned counsel for the Petitioner submitted that the Additional Collector, Hingoli failed to consider that in respect of same set of allegations, previously also a complaint was filed before the 5 Chief Executive Officer, Zilla Parishad, Hingoli by Respondent Nos. 5 to 10 and after making necessary enquiry, a report was submitted by the Chief Executive Officer, to the Divisional Commissioner, Aurangabad and that the learned Divisional Commissioner, Aurangabad, after hearing the parties, set aside the report of the Chief Executive Officer and directed the Chief Executive Officer to make fresh enquiry. Learned counsel for the Petitioner further submitted that for the same set of facts the dispute before the Collector, Hingoli is not maintainable as per law and therefore the Judgment and order of the Additional Collector, Hingoli is liable to be set aside. He further submitted that the authority failed to consider that Respondent Nos. 5 to 10 who have given resignations of their posts as a Member of Gram Panchayat and in respect of the same dispute being Writ Petition No.5614 of 2007 is pending before this Court for final adjudication and therefore authority have no right to take action in present case. He further submitted that learned Additional Collector, Hingoli failed to 6 consider that when Chief Executive Officer has made necessary enquiry in respect of same set of allegations which are made before the Additional Collector, Hingoli, he is not entitled to make enquiry in respect of the subject matter and therefore the impugned order is liable to be set aside. He further submitted that the Additional Collector, Hingoli failed to consider that the Petitioner has called monthly meetings and Gram Sabha as required under Section 7 and 36 of the Bombay Village Panchayats Act, 1958 and there is no default on the part of the Petitioner as alleged by Respondent Nos. 5 to 10 in their complaint dated 3rd June, 2008 and therefore the impugned order is liable to be set aside. Learned counsel for the Petitioner further submitted that as the other members of Gram Panchayat started non co-operation with Petitioner in holding meetings, therefore the Petitioner could not comply the statutory provisions as required by law. On the basis of these submissions, learned counsel for the Petitioner submitted that there was sufficient reason for the 7 Petitioner, not calling the meetings as required by law and therefore the impugned order passed by the Additional Collector, Hingoli dated 28th July, 2009 is liable to be set aside. 5. On the other hand, learned counsel for Respondent Nos. 8 and 9 submitted that the Petitioner on one hand in her reply before the Additional Collector, Hingoli denied the allegations made in the complaint filed by Respondent Nos. 5 to 10 dated 3rd June, 2008 and stated that she called statutory meetings as per the said Act from time to time without fail and on the other hand in the present Petition the Petitioner specifically stated that for non co-operation from other Members of the Gram Panchayat, it remained on the part of the Petitioner to call statutory meetings as required under the Bombay Village Panchayats Act, 1958. These two contrary defence cannot be considered in Writ Petition under Articles 226 and 227 of the Constitution of India for setting aside the impugned order dated 28th July, 2009. He further pointed out 8 that Chief Executive Officer, Zilla Parishad, Hingoli submitted his report of enquiry under Section 39(1) of the Bombay Village Panchayats Act, 1958, whereas, the Additional Collector has taken action against the Petitioner for non compliance of statutory provisions under Section 7 and 36 of the Bombay Village Panchayats Act, 1958. Therefore this defence is not available to the Petitioner for setting aside the impugned order passed by the authority that for the same set of facts previously enquiry report was submitted and action taken. In support of his contentions, learned counsel for Respondent Nos. 8 and 9 relied on the Judgment in the matter of Gunwantrao Yeshwantrao Deshmukh vs. The State of Maharashtra, reported in Bombay Law Reporter, Vol. LXXXIII, Page No.448. In this case Bombay High Court held that once the facts constituting the disqualification are proved and sufficient cause is not shown, then the disqualification to continue as sarpanch comes into operation. Head Note of the Judgment reads as under: 9 " The area and field covered by S.39 of the Bombay Village Panchayats Act is distinct and different from one covered by S.36 of the Act. Disqualification is laid down by S. 36 itself. Once the facts constituting the disqualification are proved and sufficient cause is not shown, then the disqualification to continue as sarpach comes into operation. The section does not contemplate any further order of removal as is contemplated by S.39 of the Act. The order of the Collector declaring disqualification under S.36 cannot, therefore, in effect, amount to removal of the sarpanch under S.39." 6. Learned A.G.P. for Respondent Nos. 1 and 2 also submitted that the Petitioner in her reply dated 24th February, 2009 in para 6, 7 and 8 specifically stated that she called statutory meetings as per law and on the other hand in Ground No.8 on Page 14 of the present Petition the Petitioner stated that in view of the litigation pending in the Hon'ble High 10 Court and in view of decision given by learned Divisional Commissioner, Aurangabad, it was not possible for the Petitioner to held the required monthly meetings and Gram Sabhas and therefore she cannot be disqualified under Section 7 and 36 of the Bombay Village Panchayats Act, 1958. Learned A.G.P. further submitted that the Petitioner herself admitted in her Petition in Ground No.9 that it remained on her part to call the statutory meetings because of the reasons beyond her control. On the basis of these submissions, learned A.G.P. submitted that the Petitioner violated the statutory provisions of Section 7 and 36 of the Bombay Village Panchayats Act, 1958 in not calling the meetings and therefore present Petition is liable to be dismissed. 7. Learned counsel for Respondent Nos. 4 and 11 submitted that the Petitioner cannot take the benefit of order dated 29th December, 2008 passed by the Divisional Commissioner, Aurangabad by which the report submitted by the Chief Executive Officer, 11 Zilla Parishad, Hingoli under Section 39(1) of the Bombay Village Panchayats Act, 1958, set aside. He submitted that though the said report was set aside on the ground that the complainant failed to justify the misappropriation of funds, whereas Additional Collector, Hingoli passed impugned order under Section 7 and 36 of the Bombay Village Panchayats Act, 1958 for non compliance of holding statutory meetings. On the basis of these submissions, learned counsel for Respondent Nos. 4 and 11 submitted that the present Writ Petition is liable to be dismissed with costs. 8. With the assistance of the learned counsel for the respective parties, I have carefully gone through the impugned order passed by the Additional Commissioner as well as copy of the reply filed by the Petitioner dated 24th February, 2009 before the Additional Commissioner produced by the learned A.G.P. in the present proceeding. It is admitted fact that the Petitioner in her reply dated 24th February, 2009 specifically denied the allegations 12 made in complaint dated 3rd June, 2008 filed by Respondent Nos. 5 to 10 for violation of statutory provisions of Section 7 and 36 of the Bombay Village Panchayats Act, 1958; whereas in present Writ Petition, the Petitioner admitted that it remained on her part to call statutory meetings as required by law. This itself shows that the Petitioner failed to call statutory meetings during the relevant period. The Additional Collector, after considering the record, held that the Petitioner called only 11 monthly meetings in the year 2006-2007 and not called a single Gram Sabha, so also in the year 2007-2008, 12 meetings were called by the Petitioner but not a single Gram Sabha was held. In same way in the year 2008-2009 after July, 2008 only 2 Gram Sabhas were held by the Petitioner. These facts are admitted by the Petitioner in her Writ Petition, particularly, in Ground Nos. 5 to 9. But her contention is that for sufficient reasons it remained on her part to comply the said provisions. The said submission is not acceptable because the Petitioner in her reply dated 24th Ferbarury, 2009 13 categorically stated that she has not violated any provisions of Section 7 and 36 of the Bombay Village Panchayats Act, 1958, whereas in the Petition she stated that because of the situation beyond her control and for the sufficient reasons, it remained on her part to call statutory meetings during the relevant period. Considering these facts, I do not find any substance in the present Writ Petition to interfere under Articles 226 and 227 of the constitution of India for setting aside the well reasoned order dated 28th July, 2009 passed by the Additional Collector, Hingoli. Writ Petition is dismissed with no order as to the costs. Rule stands discharged. [K.K. TATED, J.] asb/OCT09/wp5521.09