1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9201 OF 2007 Sudhir Fakkadrao Punde .. Petitioner Versus Bandu Phulaji Punde & Ors. .. Respondent Mr.D.A.Nalawade for petitioner Mr.Yogendrasingh Rathod for respondent No.1 Mr.R.M.Patne, AGP for State. CORAM : S.C.DHARMADHIKARI, J. DATE : 13th March 2008 P.C. . Heard learned Counsel for parties. 2. Petition is directed against the order passed by the Additional Commissioner, Pune Division dated 3rd October 2007 reversing that of the Collector, Pune in Election Dispute No.1 of 2007. 2 3. Collector Pune by his order dated 20th February 2007 has held that respondent No.1 before me is disqualified to continue as Member and Sarpanch of Gram Panchayat, Kanhur Mesai. 4. The first respondent challenged that decision in appeal and in appeal, the Additional Commissioner has held that Collector’s order is erroneous and requires to be quashed and set aside. 5. Petitioner is original complainant. He brought to the notice of the authorities the fact that the first respondent has incurred a disqualification under section 14(1)(g) of the Bombay Village Panchayat Act, 1958. The said first respondent had taken on lease gram panchayat property bearing No.1004. These are shop premises which were granted on lease in the year 1999-2000. The lease agreement, a copy of which is also annexed to the writ petition, 3 states that the first respondent has taken a shop premises on lease for eleven months on the terms and conditions stipulated therein. Clauses 3 and 5 of the said lease agreement stipulate that the agreement is for eleven months and would be renewed after the period expires. The petitioner brings to my notice, clause 5 wherein the lessee has been permitted to hand over the Gala to some third party but the said transaction would require prior permission from the Gram panchayat. It is in such circumstances that petitioner contended that the first respondent has incurred a disqualification and necessary orders, therefore, be passed. 6. It appears that a report was submitted by the Chief Executive Officer of Pune Z.P. The Chief Executive Officer has relied upon a report from Panchayat Samiti Shirur which has confirmed that the said shop premises belong to gram panchayat and they have been taken on lease in 4 1999-2000 by the first respondent. However, it was stated in the report that before he became Sarpanch on 21st May 2004, the Gala was transferred to one Mr.Ashok Hinge. The said Ashok Hinge had applied on 30th May 2006 for transferring the Gala in his name. That application is pending before the Grampanchayat and the name of first respondent continues on record pertaining to the said shop/property. The Grampanchayat elections were held in 2005, the first respondent was elected therein and is now a Sarpanch. 7. The Collector has in the order passed by him on 20th February 2007, observed that the first respondent has been elected from Blok No.1 on a reserved seat. The Sarpanch and Upa-sarpanch for the said grampanchayat were elected on 22nd August 2005. On the date of the general election and on the date of election as Sarpanch the Gala/shop continues in the name of 5 first respondent. The property belongs to the grampanchayat. However, the Collector did not refer to the transactions between the first respondent and the said Ashok Hinge. That is referred to by the Additional Commissioner. The Additional Commissioner has in the impugned order observed that the subject shop/gala cannot be said to be a grampanchayat property. This finding is rendered on the basis that there is a dispute raised as to whether the grampanchayat is the owner of the property or not. I am not in agreement with this finding as the Commissioner ought to have appreciated that once the agreement was produced and the Grampanchayat was the signatory thereto so also the first respondent accepted the terms and conditions, then, the relationship of lessor and lessee comes into existence. Once that relationship is admitted from the contents of the documents, then admittedly, the gram panchayat is the lessor. Hence, there is no question of property not 6 belonging grampanchayat or there being a dispute with regard to the ownership. Merely because some questions and issues are pending with regard to the property does not mean that in the subject proceedings those issues/questions can be raised. 8. If that be the case, then, no further inquiry was necessary.. The fact that the Commissioner has perused the Agreement/kararnama and has given a finding that the Agreement has not been renewed, means that the ownership is not in dispute. Further, the Commissioner has lost sight of the fact that clause 3 of this agreement may have some bearing on the matter before me. Clauses 3 and 5 of the same have not been perused. Further, if the gala had been transferred in favour of Ashok Hinge, then what is the effect of such transfer, whether, such transfer is prior to the date on which the nomination forms for the subject election were filled or whether the petitioner satisfied the 7 Commissioner that even on the date of election of Sarpanch or Upa-sarpanch, the gala continues to be in the name of first respondent or not, are all matters which have not been gone into and addressed at all. They would have definite bearing on the outcome of the proceedings. The Commissioner has filed an affidavit before this Court and in the said affidavit he has referred to the fact that the Agreement was not registered under the Registration Act. He has referred to the resolution No.35 of Grampanchayat dated 22nd August 1999 where name of respondent No.1 was not mentioned in the list of encroachers. Further, he has raised an issue that the amendment to section 14 and particularly the one brought into effect in 2006 would not cover the subject controversy. In my view, this is not a satisfactory manner of deciding such proceedings. The least that was expected in such matters is that the orders speak for themselves. Those who are deciding quasi judicial matters, later on, 8 should not file affidavits clarifying what was passing through their minds and what led them to pass a particular order. This makes a mockery of entire proceedings. Once section 14(1) has been re-numbered as sub-section by Maharashtra Act 34/2000 and the same has come into effect on 5th August 2001 and Clause (g) therein being there on the Statute book together with explanation thereto, then, it was incumbent upon the Commissioner to make a proper enquiry and investigation and decide the matter. Nowhere do I find in the conclusions recorded by him, any reference to the transaction by first respondent with Mr.Ashok Hinge and the impact that it would have on the proceedings. 9. In such circumstances, although, I have been taken through the documents annexed to the petition in details by Mr.Nalawade, I am of the opinion that interest of justice and fairness demands that both sides must have an opportunity 9 to substantiate their pleas afresh. In such circumstances, while quashing and setting aside the order of the Additional Commissioner, I remand the proceedings to him with a clear direction that he should decide the appeal preferred by first respondent within two months from the date of production of a copy of this order and uninfluenced by any observations in the earlier order. Similarly, he should bear in mind the points which have been highlighted by me but shall not be influenced by merely the fact that his order is set aside and remand is ordered by this Court. He must take independent decision by applying his mind to the entire controversy. 10. Needless to state that the order of remand passed by this Court does not revive the order of the Collector but keeps first respondent’s appeal pending before the Commissioner. In such circumstances, he need not relinquish his office. Petition disposed of. No 10 costs. (S.C.Dharmadhikari, J)