1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR Writ Petition No.3104 of 2009 Smt. Savita Ashok Bhendarkar, Aged about 30 years, Occupation : Social Work, R/o Ranala, Taluka Paoni, District Bhandara. ... Petitioner Versus 1. Divisional Commissioner, Nagpur Division, Nagpur. 2. Purushottam s/o Deoram Brahmankar, Aged about 47 years, Occupation : Agriculturist, R/o at Ranala, Post Asgaon, Taluka Paoni, District Bhandara. ... Respondents Shri S.V. Bhutada, Advocate for Petitioner. Shri S.B. Ahirkar, AGP for Respondent No.1. Shri A.Y. Kapgate, Advocate for Respondent No.2. CORAM : R.C. Chavan, J. DATE : 25th September, 2009 Oral Judgment : 1. Rule. Rule is made returnable forthwith. Heard finally by consent of the learned counsel for the parties. 2. This petition by a Member of Panchayat Samiti, Paoni, is directed against the order passed by the Divisional 2 Commissioner, Nagpur Division, Nagpur, disqualifying the petitioner under Section 16(1)(k) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 for her, as well as her husband’s, failure to pay the taxes of their house situated in Village Ranala, in respect of which, notices of demand were served upon them on 15-5-2006 and 31-12-2006. The bills were paid on 12-1-2007. 3. Respondent No.2 applied to the Divisional Commissioner for disqualifying the petitioner on the ground of her failure to pay the dues of Gram Panchayat taxes in spite of notices demanding taxes having been served upon the petitioner and her family members. The Divisional Commissioner, it seems, directed the enquiry to be held by the Chief Executive Officer. The report of the Chief Executive Officer was received by the Divisional Commissioner and after considering the said report, the Commissioner came to the conclusion that the petitioner had defaulted in payment of taxes and, therefore, was liable to be disqualified. He, therefore, passed the impugned order. Aggrieved thereby, the petitioner is before this Court. 4. It is the contention of the learned counsel for the petitioner that the petitioner or her husband had not received any notices of demand or writs, their signatures had been forged, and they had been unnecessarily held as defaulters. He pointed out that such a specific stand was taken before the Commissioner in the reply filed on behalf 3 of the petitioner. The petitioner had stated in the reply that the signature on Annexure-IV, i.e. the bill, was totally different and does not tally with her signature. She had further stated that there is no procedure or provision to serve the bill in presence of the witnesses, when there was no evidence of refusal by her family members. She had stated that the witnesses, who were residing at a long distance and who were on inimical terms with the petitioner’s family, were taken only to create a false evidence. She had also stated that even her husband’s signature does not tally with his usual signature. 5. The learned counsel for the petitioner also contended that the order passed by the Divisional Commissioner does not indicate that he had himself conducted the enquiry before disqualifying the petitioner. He had merely relied on a report of the Chief Executive officer without providing the petitioner with a copy of the said report and affording an opportunity to comment thereon. 6. The learned counsel for respondent No.2 submitted that the report of the Chief Executive Officer was very much available on the record of the proceedings before the Divisional Commissioner, and just as his client could see that report, the petitioner too could have seen that report and commented upon it. He relied on a judgment of this Court in Suvarna Prakash Patil v. Anil Hindurao Power and others, reported at 2004(1) Mh.L.J. 4 1062, where, in para 12, a learned Single Judge of this Court had observed that the action or enquiry in respect of disqualification of a Member is not an adverserial proceeding, but sui generis and more in the nature of summary and inquisitorial proceedings. When an enquiry is sui generis and in the nature of summary and inquisitorial proceedings, it would follow that the parties to such proceedings are not on equal footing and the authority is conducting summary and inquisitorial proceedings in order to punish the defaulting party. In such a case, if the authority is not taking the evidence itself, and considers the material, which is indicative of guilt of the defaulting party, it is imperative that the authority must give copy of the report or the material collected by someone else behind the back of the defaulting party, on which the authority proposes to rely. 7. The learned AGP for respondent No.1 has made the original proceedings available for my perusal. The proceedings began on 5-10-2007 on an application by respondent No.2. The order-sheet dated 5-10-2007 shows that the Chief Executive Officer had not submitted his report and a reminder was ordered to be issued to him accordingly. On 26-12-2007, the petitioner appeared and filed registered address, vakalatnama and sought time. The report of the Chief Executive Officer seems to have been received in the office of Divisional Commissioner on 27-12-2007. The learned counsel for respondent No.2 submits that in fact the report was submitted on 5 26-12-2007. The order-sheet dated 26-12-2007, however, makes no reference to the receipt of such report. There is no order-sheet dated 27-12-2007. The subsequent order-sheets also do not refer to the receipt of such report. The order-sheet dated 9-1-2008 refers to the receipt of the original record (mul abhilekh), which does not refer to the report of the Chief Executive Officer. The learned counsel for respondent No.2, however, submits that just as respondent No.2 had access to the said report from the record, the petitioner too could have seen the report. Whether the petitioner could have, by due diligence, seen the report or not, is not relevant for deciding whether the petitioner could be disqualified. If the petitioner was sought to be disqualified on the basis of the material, which was not tendered at the enquiry where she was disqualified, she was entitled to get a copy of such report and then she could have been called upon to comment upon it. This is decidedly not done. 8. Further, the impugned order of the Divisional Commissioner and the report of the Chief Executive Officer have a very interesting similarity. Paras 1 to 5.5 of the impugned order recount various steps in the proceedings. The second para of para 5.5 begins with the sentence to the effect that the documents in the case were caused to be examined by the Chief Executive Officer, Zilla Parishad, Bhandara. Then it refers to the report received and the conclusions drawn by the Chief Executive Officer. From that point onwards, the impugned order is copy of 6 paras 3 and 4 of the report of the Chief Executive Officer – word by word and comma by comma. The last para before the operative order concludes with the observation that on the basis of oral and written arguments advanced by respondent No.2 and the petitioner, as also on the perusal of the report of the Chief Executive Officer, the petitioner has not paid the taxes within the prescribed time. The Divisional Commissioner then passed the operative order disqualifying the petitioner. 9. Since the original record was available, another interesting facet of the whole muddle came to the fore. It is doubtful whether the Chief Executive Officer had himself conducted an enquiry. The enquiry was possibly conducted by the Deputy Chief Executive Officer-cum-Enquiry Officer. Thus whether any authority had applied its mind to the plea of the petitioner that the signatures on the bills in question were not of her or her husband, is in doubt. For this one reason only, the impugned order exhibits non-application of mind and the same is liable to be quashed and set aside. 10. The petition is, therefore, allowed. The impugned order is quashed and set aside. The Divisional Commissioner shall again hear respondent No.2 as well as the petitioner after furnishing a copy of the report of the Chief Executive Officer and affording an opportunity to the petitioner to comment upon the evidence, which is to be used against her, within a 7 period of one month from the date of communication of this judgment. The Commissioner would undoubtedly bear in mind that the proceedings are summary and inquisitorial in nature and the same are not to be conducted like a civil suit or adverserial proceedings, as has been clarified in Suvarna Prakash Patil v. Anil Hindurao Power and others, reported at 2004(1) Mh.L.J. 1062. The Commissioner would also bear in mind the statutory time-limit, within which the proceedings are required to be disposed of. Both the learned counsel for the petitioner and respondent No.2 state that their clients would appear before the Divisional Commissioner on 5-10-2009. 11. The original record of the proceedings is returned to the learned AGP for respondent No.1. 12. Rule is made absolute in above terms. Judge. Pdl.