1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR LETTERS PATENT APPEAL NO. 340 of 2011 IN WRIT PETITION NO.3228 OF 2011(D) ABDUL WAJID ABDUL JALIL ..VS.. STATE OF MAHARASHTRA & OTH. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. P.C.Madkholkar, Advocate for Appellant. Mr. D.P. Thakre, A.G.P. for Respondents No.1 and 2. Mr. S.D.Chopde, Advocate for Respondent No.4. None for Respondents No.3 and 5. CORAM : S.A.BOBDE & M.N.GILANI, JJ. Date of Reserving Order : 17.08.2011. Date of Pronouncing order : 23.08.2011. ORDER : (Per : M.N.Gilani, J.) 1. In this appeal the appellant questions the order dated 11th July, 2011 passed by learned single Judge of this Court in Writ Petition No.3228 of 2011. 2. The appellant is an elected member of the Village Panchayat, Mana, Tahsil : Murtizapur, District : Akola. By virtue of power conferred upon respondent No.2 under Section 39 of the Bombay Village Panchayats Act, 1958 (in short “the Act, 1958”) the appellant was removed from the office on the ground of disgraceful conduct. This order came to be passed on 10th March, 2011. Under Section 39(3) of the Act, 1958 an appeal was preferred to the State Government. On 23rd June, 2011 the appeal, so far as it relates to the appellant, came to be dismissed. This was 2 questioned by filing writ petition under Articles 226 and 227 of the Constitution. The learned single Judge, after considering the record, answered the issue of jurisdiction and the issue relating to factual matrix against the appellant. The learned Judge observed that : “..... In so far as the petitioner is concerned the Appellate Authority has recorded a specific finding that the shop has been allotted to the son-in-law of the petitioner and that arms were found in the said shop when riots had taken place on 04.06.2010. In my view the order passed in the instant case by the appellate authority cannot be said to be bereft of any reasons. Once having come to a conclusion that the Commissioner had the power under Section 39 of the Act the necessary corollary of the same would be that he would have the power to declare that a vacancy has arisen.” 3. The gamut of the contention of Shri Madkholkar, the learned counsel for the appellant, is that to the case of the appellant provisions of clause (i) of sub- section (1) of Section 39 of the Act of 1958 are not attracted. This is exclusively meant for dealing with the cases of Sarpanch and Upa-Sarpanch. He based his contention by making reference to Clause (d) and (e) of sub-Section (1) of Sections 14 and 16 of the Act of 1958. 4. To appreciate the contention, it is necessary to make brief reference to the order passed by the respondent No.2 and then the order passed by respondent No.1. Admittedly, the complaint lodged by one Mohammed Ijjtulla was directed against Mandatai, Sarpanch and the appellant. This was jointly dealt with by the respondent No.2. We are, here, concerned with the finding recorded by respondent No.2 to the effect that vide resolution dated 29.12.2009 the village Pancnayat allotted the stall to son-in-law of the appellant. There were riots in the village on 04.06.2010. When the stall was searched weapons were found kept there. On the 3 basis of facts proved, the respondent No.2 came to the conclusion that the appellant misused his position and is ultimately responsible for gross illegality. In the final order the respondent No.2 made reference to Section 39 (1) of the Act of 1958. The respondent No.1 disposed of the appeal and reiterated the aforesaid findings recorded by the respondent No.2. After concluding that the conduct of the petitioner was disgraceful, the appeal of the appellant came to be dismissed. When, two fact finding authorities have considered the issue and returned the findings, which were confirmed by the learned single Judge of this Court, obviously no scope is left for this Court to reconsider the issue of removal of the appellant from the membership of the Panchayat. 5. As regards, the contention of the learned counsel for the appellant that clause (i) of sub-section (1) of Section 39 is not attracted, is without substance. This provision deals with removal of Member as well as removal of Sarpanch or Upa- Sarpanch. Whenever any action is taken as contemplated in clause (i) of sub-section (1) of Section 39 of the Act of 1958 against Sarpanch or Upa-Sarpanch, firstly they are required to vacate the office of Sarpanch or Upa-Sarpanch, as the case may be. That means even after such removal they continue to be the Members of the panchayat. Further discretion is vested in the Commissioner to remove them from the membership of the Panchayat. Thus, the action against Sarpanch or Upa- Sarpanch, contemplated under this provision, is in two phases, of course, may be exercised in the same proceeding. This is not so when the Commissioner deals with case of a Member simpliciter. The relevant provisions, in this regard, are reproduced as under for ready reference : 4 “39. Removal from office : - (1) The Commissioner may :- (I) remove from office any member or any Sarpanch or Upa- Sarpanch who has been guilty of misconduct in the discharge of his duties, or of any disgraceful conduct, or of neglect of or incapacity to perform his duty, or is persistently remiss in the discharge thereof. A Sarpanch or Upa-Sarpanch so removed may at the discretion of the Commissioner also be removed from the panchayat; or (ii) …. (2) The Commissioner may subject to like condition disqualify for a period of not exceeding five years, any person who has re- signed his office as a member, Sarpanch or Upa-Sarpanch and has been guilty of the acts and omission specified in sub-section (1).” In that light of the matter, the reading of latter part of the section in isolation, as has been done by the learned counsel for the appellant, is of no use nor buttress his contention. Needless to say that sub-section (2) of Section 39 of the Act of 1958 covers, within its ambit, the cases of Member, Sarpanch or Upa-Sarpanch who is found guilty but subsequently has resigned. 6. For the foregoing reasons, we find no merit in this appeal. The appeal dismissed. In the circumstances of the case, there shall be no order as to costs. JUDGE JUDGE RR..