A right to be heard, before removing from office of Panchayat is mandatory: Bombay High Court

 on 15 07 2021 on 22 03 Judgment WP 4920 21.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWrit Petition No. 4920 20211.Ankush Achutrao RautAge : 28 years Occu.: Agri. 2.Sk. Yusuf Sk. Rustum Age : 33 years Occu.: Agri 3.Sayyad Bismilla Mahemood Age : 46 years Occu.: Agri 4.Uttam Bhagaji Bansode Age : 40 years Occu.: Agri 5.Sk. Mainubi Hasan Age : 35 years Occu.: Agri 6.Devidas Onkar Gawande Age : 32 years Occu.: Agri 7.Parvatibai Namdeo Navale Age : 34 years Occu.: Agri 8.Bhivsan Kadubal Jadhav Age : 34 years Occu.: Agri 9.Varsha Annasaheb Jadhav Age : 28 years Occu.: Agri All above R o : Karodi Sajapur Taluka and District Aurangabad. .. Petitioners 1 20 on 15 07 2021 on 22 03 Judgment WP 4920 21.doc Versus.1.The State of MaharashtraThrough its Principal Secretary Rural Development Department Mantralaya Mumbai 32.2.The Divisional Commissioner Aurangabad.3.The Chief Executive Officer Zilla Parishad Aurangabad.4.The Block Development Officer Panchayat Samiti Aurangabad.5.The Gram Panchayat Karodi Sajapur Taluka and Dist. Aurangabad.Through : Gram Sevak.6.Sk. Ismaile Sk. IbrahimAge : 34 years Occu.: Agri R o: Karodi Sajapur Taluka and Dist. Aurangabad... Respondents Mr. R.V. Gore Advocate for the Petitioners.Mr. S.P. Tiwari AGP for State.Mr. A.D. Sugdare Advocate for Respondent No.6. 2 20 on 15 07 2021 on 22 03 Judgment WP 4920 21.docCORAM : SANDEEP K. SHINDE J.RESERVED ON : 1st JULY 2021.PRONOUNCED ON: 14th JULY 2021 Judgment : 1.This petition challenges the orders dated 6th February 2020passed by the Additional Divisional Commissioner Aurangabad underSection 39(2) and order dated 10th February 2021 passed by theHon’ble State Minister Rural Development under Section 39(3) bothin exercise of powers under the Maharashtra Village Panchayats Act 1959 whereby the Petitioners were removed from the office of Groupof Gram Panchayat Karodi Sajapur for their remaining term as amembers of Panchayat. 2.Briefly stated facts of the case are that the Petitioner Nos. 1and 2 were Sarpanch and Up Sarpanch of the Group of GramPanchayat Karodi Sajapur(i) of the said Act. The ChiefExecutive Officer after hearing the Petitioners recorded a finding that the resolution passed by the Gram Panchayat granting developmentpermission was contrary to provisions of Section 52 of theMaharashtra Village Panchayats Act 1959 and forwarded his report toAddl. Divisional Commissioner. The Add. Divisional Commissioner after hearing the Petitioners held them guilty of misconduct forgranting illegal development permissions and removed them from thePanchayat and further disqualified Sarpanch and Up Sarpanch forremainder of the term of office of Panchayat. Feeling aggrieved by theorder passed by the Add. Divisional Commissioner an appeal waspreferred before the State but it was dismissed by the Hon’ble StateMinister for village development by order dated 10th February 2021.These two orders are impugned in this petition. 3.Before adverting to the arguments of the respective counsel forthe parties it would be advantageous to reproduce the relevant 5 20 on 15 07 2021 on 22 03 Judgment WP 4920 21.docprovision of the Maharashtra Village Panchayats Act 1959 Section 39. Removal from office : 199[(1) The Commissioner may of section 8:Provided that no such person shall be removed fromoffice unless in case of clausethe Chief Executive Officeror in case of clausethe Deputy Chief Executive Officer asdirected by the Chief Executive Officer under the orders ofthe Commissioner holds an inquiry after giving due notice tothe Panchayat and the person concerned and the personconcerned has been given a reasonable opportunity of beingheard and thereafter the Chief Executive Officer or as thecase may be the Deputy Chief Officer concerned through the 6 20 on 15 07 2021 on 22 03 Judgment WP 4920 21.docChief Executive Officer submits his report to theCommissioner. The inquiry officer shall submit his reportwithin a period of one month:Provided further that the Commissioner shall aftergiving the person concerned a reasonable opportunity ofbeing heard take a decision on the report submitted by theChief Executive Officer or as the case may be the DeputyChief Executive Officer within a period of one month from thedate of receipt thereof.]200[(1 A) Where a person is removed from office of theSarpanch or Upa Sarpanch he shall not be eligible for re election as Sarpanch or Upa Sarpanch during the remainderof the term of office of members of the Panchayat].201[(2) The Commissioner may subject to like conditiondisqualify for a period of not exceeding five years any personwho has re signed his office as a member Sarpanch or Upa Sarpanch and has been guilty of the acts and omissionspecified in sub sectionAny person aggrieved by an order of the Commissionerunder sub sectionormay within a period of fifteendays from the date of the receipt of such order appeal to theState Government and the Government shall decide theappeal within a period of one month from the date of receiptthereof.]202[39A. Power of Government to direct inquiry :Notwithstanding anything contained in section 39 theState Government may suo motu or on an application madeto it against any member Sarpanch or Upa Sarpanch 7 20 on 15 07 2021 on 22 03 Judgment WP 4920 21.docregarding any act or omission specified in against suchmember Sarpanch or as the case may be Upa Sarpanch and submit its report within a period of one month to theCommissioner.(2)The Commissioner shall after giving a reasonableopportunity of being heard to the Panchayat and the personconcerned take a decision within a period of one month onthe inquiry report.(3)Any person aggrieved by an order of theCommissioner under sub sectionmay within a period offifteen days from the date of receipt of such order appeal tothe State Government and the decision of the Governmentthereon shall be final.]Section 14: Disqualifications : No person shall be amember of a Panchayat continue as such who has beenremoved from office under sub sectionof section 39 and aperiod of five years has not elapsed from the date of suchremoval unless he has by an order of the State Governmentnotified in the Official Gazette been relieved from thedisqualification arising on account of such removal fromoffice. 4.Learned Counsel for the Petitioners has made the followingsubmissionsof the Act.(iii)that the development permissions were not acted upon exceptone.(iv)that Panchayat had issued notices to the six persons to whomthe development permissions were granted and informed thatpermissions were cancelled. They were also informed that fordevelopment of their plots they may have to obtain the permissionfrom the Add. Divisional Commissioner Aurangabad.(v)That since alleged permission have not been acted upon(except one) no loss was caused to the Panchayat. 9 20 on 15 07 2021 on 22 03 Judgment WP 4920 21.doc(vi)Both the Add. Divisional Commissioner and the Hon’ble StateMinister failed to make a distinction between ‘illegality’ and‘misconduct’.(viii)That in appeal before the Hon’ble State Minister Petitionerswere not granted sufficient opportunity to plead their case andtherefore the order of the Hon’ble State Minister was in breach ofprinciples of natural justice.5.Learned Counsel for the Petitioners would also contend that theprovision of Section 39(1) read with Sub Section 2 are to be strictlyconstrued inasmuch as elected person in a democracy should not beeasily removed by the order of an executive authority and it is only inclear cases of flagrant and gross misconduct that such removal shouldbe resorted to. In support of this contention he relied on the judgmentof the Division Bench in the case of Surinder Prakash Goel Vs. TheState of Allahabad AIR 1993 Allahabad 50. It is argued although theprovisions of Section 39(a) empower Commissioner to remove 10 20 on 15 07 2021 on 22 03 Judgment WP 4920 21.docany member or Sarpanch or Up Sarpanch who has been guilty ofmisconduct in discharge of his duties but expression ‘misconduct’ encompasses more than one ‘act’ or omission in discharge of theduties and therefore ‘solitary’ or singular act cannot be construed asmisconduct. Learned Counsel would rely on provision of Sub Section2 of Section 39 wherein expression ‘has been guilty of actsand omission’ is used. It is strenuously submitted thatgranting development permission in breach of Section 52 of the Act would be ‘illegality’ and not ‘misconduct’ in discharge of the duties.Learned Counsel for the Petitioners would also rely on to show causenotice issued by the Add. Divisional Commissioner which makesreference to illegal development permission and not the misconduct.On these grounds learned Counsel for the Petitioners seeks to quashthe impugned orders.6.On the other hand learned AGP has supported impugned orderspassed by the Add. Divisional Commissioner and the Hon’ble StateMinister. 11 20 on 15 07 2021 on 22 03 Judgment WP 4920 21.doc7. Reasons :Undoubtedly the resolution dated 30th January 2018of the Panchayat granting development permission was contrary tothe provisions of Section 52 of the Maharashtra Village PanchayatsAct 1959 and Maharashtra Regional and Town Planning(Amendment) Act 2014 which mandate that in the village for which adraft Regional plan or final Regional plan has been published underthe provisions of the Maharashtra Regional and Town Planning Act 1966 no person shall erect or re erect or commence to erect or re erect any building in other areas of villagewithout obtaining the previous permission of the Collector orany other officer not below the rank of Tahsildar to whom the powersof the Collector are delegated. Indisputably in the case in hand development permission was granted not in respect of the land fallingin the gaothan area and therefore members of the Panchayat had noauthority to grant development permission. Be that as it may a copyof a permission dated 9th March 2018 is on record at Page No. 35 ofthe paper book. It is in the form of ‘No Objection Certificate’ It reads 12 20 on 15 07 2021 on 22 03 Judgment WP 4920 21.docthat Mr. Khadak Harka Bahaddur is granted a permission to develop aplot no. 42after taking necessary construction permission. Thus itwas not a blanket permission but was subject to such other necessarypermissions. Therefore the permission dated 9th March 2018 was nota development permission but a No Objection for obtaining such otherpermissions. This fact has been overlooked by both the authorities. 8.Be that as it may even assuming the Petitioners had granteddevelopment permission yet resolution which accorded permissionwas cancelled by the Panchayat by subsequent resolution dated 30thSeptember 2019. Even this fact has been completely overlooked bythe Add. Divisional Commissioner as well as by Hon’ble StateMinister. The subsequent resolution suggests that the members ofPanchayat have rectified the mistake committed by them. As statedabove although the permission was granted to six persons exceptone other permissions were not acted upon. The material on recordshows the Panchayat had informed all six persons that the permissiongranted to them were cancelled in the monthly meeting held on 30th 13 20 on 15 07 2021 on 22 03 Judgment WP 4920 21.docSeptember 2019. Insofar as one permission is concerned thePetitioner No.1 in affidavit sworn on 1st July 2021 has assured thisCourt that construction made if any by Pandurang Sarjerao Tupe shall be removed within four weeks after assuming charge of office.9.Moot question is Whether resolution of Panchayat grantingdevelopment permission in breach of the provisions of Section 52 wasan ‘act’ to mean to hold the Petitioners guilty of “misconduct indischarge of their duties within the meaning of Section 39(1) of thesaid Act or was it a sheer illegal or irregular act and or omission indischarge of duties” .Misconduct means any behaviour which conflicts with express rules or implied rules. As understood in Labour Law misconduct maybe defined as any action or behaviour which conflicts with interest ofthe employer. However here expression ‘misconduct’ is to beunderstood with reference to subject matter and scope of the Act andobject it seeks to serve..Expressionis a generic term. It is defined in 14 20 on 15 07 2021 on 22 03 Judgment WP 4920 21.docBlack’s Law Dictionary Sixth Edition as under:“A transgression of some established and definite rule ofaction a forbidden act a dereliction from duty unlawfulbehaviour wilful in character improper or wrong behaviour its synonyms are misdemeanour mis deed misbehaviour delinquency impropriety mismanagement offence but notnegligence or carelessness.”Misconduct is office has been defined as :“Any unlawful behaviour by a public officer in relation to theduties of his office wilful in character. The term embracesacts which the office holder had no right to perform actsperformed improperly and failure to act in the face of anaffirmative duty to act.”10.In the case of State of Punjab Vs. Ram Singh AIR 1992 SC2188 the Hon’ble Apex Court in Paragraph No.5 has held:“Thus it could be seen that the word ‘misconduct’ though notcapable of precise definition its reflection receive itscannotation from the context the delinquency in itsperformance and its effect on the discipline and the nature ofthe duty. It may involve moral turpitude it must be improperor wrong behaviour unlawful behaviour wilful in character forbidden act a transgression of established and definite ruleof action or code of conduct but not mere error of judgment carelessness or negligence in performance of the duty theact complained of bears forbidden quality or character. Its 15 20 on 15 07 2021 on 22 03 Judgment WP 4920 21.docambit has to be construed with reference to the subject matter and the context wherein the term occurs regard beinghad to the scope of the statute and the public purpose itseeks to serve. The police service is a disciplined serviceand it requires to maintain strict discipline. Laxity in thisbehalf erodes discipline in the service causing serious effectin the maintenance of law and order.” 11.As against the expression ‘illegality’ means an act that is notauthorized by law. Expression illegal as defined in Black’s LawDictionary means forbidden by law unlawful. The definition of‘misconduct’ reproduced above sounds and implies a wrongfulintention and it being relative term it is to be construed with referenceto the subject matter. It literally means wrong conduct or improperconduct or transgression of some established and definite rule ofaction. Thus expression ‘misconduct’ being used in Section 39(1)(i)of the act is to be understood to mean an act which must be wilful incharacter and not a negligence or carelessness..Herein the Panchayat was not an authority under Section 52 ofthe Act to grant the development permission and therefore the 16 20 on 15 07 2021 on 22 03 Judgment WP 4920 21.docresolution was non est and could have been acted upon. Expression illegal irregular and ‘misconduct’ being relative terms are to beconstrued with reference to subject matter. In my view a resolutiondated 30th January 2018 cannot be interpreted to mean a wilful act incharacter or unlawful behaviour of the Petitioners to render them guiltyof misconduct in discharge of official duties. At the most it would be anact ‘forbidden by law’ or ‘irregular exercise’ of powers. There is nomaterial on record to suggest that the resolution passed by themembers of Panchayat was with wrongful intention. Besidesresolution has not been acted upon and recinded by the Panchayatwithin eight months. Obviously it did not cause loss to Panchayat.Therefore in context of the facts of the case in my view a resolutionpassed by the Panchayat granting development permission would notrender Petitioners a guilty of misconduct in discharge of their duties.Besides one cannot overlook a fact that the Petitioners are electedrepresentatives and therefore the provision of Section 39(1)(i) andand Sub Section 2 of the Act in the context of the facts of thecase. Insofar as submission of the Petitioners that expression ‘acts’means series of acts of misconduct and not singular act to removemembers from office in my view deserves no consideration becauseseries of acts also include singular act. The question is answeredaccordingly.12.It may be stated that applicationseekingdisqualification removal from office of Panchayat was filed onlyagainst the Petitioner No.1 and a Gram Sevak. Sub Divisional Officer 18 20 on 15 07 2021 on 22 03 Judgment WP 4920 21.docsubmitted his report to the Chief Executive Officer in May 2019.Interestingly the members of the Panchayat who are the PetitionerNos. 2 to 9 were not the Respondents in an application filed inOctober 2018. Nor the Petitioner Nos. 2 to 9 were heard by the BlockDevelopment Officer before submitting the report to the ChiefExecutive Officer. A right to be heard before removing from office ofPanchayat is mandatory in terms of proviso to Section 39 of the Act.Yet they were not heard by the Block Development Officer. It may alsobe stated the Respondent No.6 Complainant amended hiscomplaint application under Section 39 A in January 2020 andarraigned Petitioner Nos. 2 to 9as partyRespondents in the application. As a result it is to be held that theRespondent Nos. 2 to 9 were removed from the office of Panchayat without following due procedure of law. On this count also the order ofremoval of the Petitioner Nos. 2 to 9 from the office of the Panchayatpassed under Section 39was not sustainable.13.For the reasons stated above the impugned orders dated 6th 19 20 on 15 07 2021 on 22 03 Judgment WP 4920 21.docFebruary 2020 passed by the Additional Divisional Commissioner Aurangabad in Appeal CRA 119 2018 dated 6th February 2020 andorder dated 10th February 2021 passed by the Hon’ble State Ministerin Appeal VPM 2020 Pra.kra.27 pra 6 are quashed and set aside. Inthe result the Petition is allowed in terms of prayer clause B. Theconsequential orders shall follow forthwith. (SANDEEP K. SHINDE J.)Najeeb... 20 20 

Summary: In terms of proviso to Section 39 of the Act, there is a right to be hard, before removing any member from the office of Panchayat, held, Justice Sandeep K Shinde, while adjudicating the matter in Ankush Achutrao Raur v. The State of Maharashtra; [Writ Petition No. 4920 / 2021].  The Petitioner Nos. 1 and 2 were Sarpanch and Up-Sarpanch of the Group of Gram Panchayat, Karodi Sajapur (Panchayat for short). In the year 2017, Petitioner No.1 was directly elected as Sarpanch. Petitioner Nos. 3 to 9 were elected as members of the Panchayat. It may be stated the Respondent No.6 is one of the elected members of the Panchayat. In the meeting of the Panchayat held on 30th January, 2018, Petitioners and Respondent No.6 unanimously resolved to grant development permission to six persons to develop their respective plots. Whereafter Respondent No.6 complained to the Additional Divisional Commissioner, that the resolution dated 30th January, 2018 moved by the Petitioner No.1, was in utter disregard to provision of Section 52 of the Maharashtra Village Panchayats Act, 1959 and it amounts to “misconduct in discharge of his duties”. An application under Section 39-A of the Act was moved. Whereafter on 3rd December, 2018, Additional Divisional Commissioner directed Chief Executive Officer, Zilla Parishad, to hold an enquiry against the Sarpanch and submit the report within a month. In pursuance thereto, Block Development Officer held an enquiry and submitted a report dated 7th May, 2019 to Chief Executive Officer, Zilla Parishad, Aurangabad. On 19th June, 2019, Chief Executive Officer issued a show cause notice to the Petitioners as to why they should not be removed from the office of Panchayat in term of Section 39(1) (i) of the said Act. The Chief Executive Officer, after hearing the Petitioners, recorded a finding that, the resolution passed by the Gram Panchayat, granting development permission, was contrary to provisions of Section 52 of the Maharashtra Village Panchayats Act, 1959 and forwarded his report to Addl. Divisional Commissioner. The Add. Divisional Commissioner, after hearing the Petitioners, held them guilty of misconduct for granting illegal development permissions and removed them from the Panchayat and further disqualified Sarpanch and Up-Sarpanch for remainder of the term of office of Panchayat. Feeling aggrieved by the order passed by the Add. Divisional Commissioner, an appeal was preferred before the State, but it was dismissed by the Hon’ble State Minister for village development by order dated 10th February, 2021. These two orders are impugned in this petition.