Judgment-WP-4920-21.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

Writ Petition No. 4920 / 2021

1.Ankush Achutrao Raut

Age : 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

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Versus.

1.The State of Maharashtra

Through 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. Ibrahim

Age : 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.

****

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CORAM : SANDEEP K. SHINDE J.

RESERVED ON : 1

st

JULY, 2021.

PRONOUNCED ON : 14

th

JULY, 2021

Judgment : -

1.This petition challenges the orders dated 6

th

February, 2020

passed by the Additional Divisional Commissioner, Aurangabad under

Section 39(2) and order dated 10

th

February, 2021 passed by the

Hon’ble State Minister, Rural Development under Section 39(3), both

in exercise of powers, under the Maharashtra Village Panchayats Act,

1959; whereby the Petitioners were removed from the office of Group

of Gram Panchayat, Karodi Sajapur, for their remaining term as a

members of Panchayat.

2.Briefly, stated facts of the case are that, 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

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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 30

th

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 30

th

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 3

rd

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 7

th

May, 2019 to

Chief Executive Officer, Zilla Parishad, Aurangabad.On 19

th

June,

2019, Chief Executive Officer issued a show cause notice to the

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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 10

th

February, 2021.

These two orders are impugned in this petition.

3.Before adverting to the arguments of the respective counsel for

the parties, it would be advantageous to reproduce the relevant

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provision of the Maharashtra Village Panchayats Act, 1959;

Section 39. Removal from office :

199

[(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)remove from office the member, Sarpanch or as the

case may be, Upa-Sarpanch if not less than twenty per cent,

of the total number of voters in the village who have paid all

dues of the Panchayat regarding taxes on buildings and lands

and water charges, make a complaint that the annual

accounts and the report of the expenditure incurred by the

Panchayat on the development activities are not placed

before the Gram Sabha; and the information thereof is not

displayed on the notice board as required by sub-section (1)

or (1-A) of section 8:

Provided that, no such person shall be removed from

office unless, in case of clause (i), the Chief Executive Officer

or in case of clause (ii), the Deputy Chief Executive Officer as

directed by the Chief Executive Officer; under the orders of

the Commissioner, holds an inquiry after giving due notice to

the Panchayat and the person concerned; and the person

concerned has been given a reasonable opportunity of being

heard and thereafter the Chief Executive Officer or, as the

case may be, the Deputy Chief Officer concerned through the

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Chief Executive Officer, submits his report to the

Commissioner. The inquiry officer shall submit his report

within a period of one month:

Provided further that, the Commissioner shall, after

giving the person concerned a reasonable opportunity of

being heard, take a decision on the report submitted by the

Chief Executive Officer or, as the case may be, the Deputy

Chief Executive Officer, within a period of one month from the

date of receipt thereof.]

200

[(1-A) Where a person is removed from office of the

Sarpanch or Upa-Sarpanch, he shall not be eligible for re-

election as Sarpanch or Upa-Sarpanch during the remainder

of the term of office of members of the Panchayat].

201

[(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).

(3) Any person aggrieved by an order of the Commissioner

under sub-section (1) or (2) may, within a period of fifteen

days from the date of the receipt of such order, appeal to the

State Government and the Government shall decide the

appeal within a period of one month from the date of receipt

thereof.]

202

[39A. Power of Government to direct inquiry :

(1) Notwithstanding anything contained in section 39, the

State Government may, suo motu or on an application made

to it against any member, Sarpanch or Upa-Sarpanch

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regarding any act or omission specified in against such

member, Sarpanch or as the case may be Upa-Sarpanch,

and submit its report, within a period of one month, to the

Commissioner.

(2)The Commissioner shall, after giving a reasonable

opportunity of being heard to the Panchayat and the person

concerned, take a decision, within a period of one month, on

the inquiry report.

(3)Any person aggrieved by an order of the

Commissioner under sub-section (2), may, within a period of

fifteen days from the date of receipt of such order, appeal to

the State Government and the decision of the Government

thereon shall be final.]

Section 14 (d) : Disqualifications : No person shall be a

member of a Panchayat continue as such, who has been

removed from office under sub-section (1) of section 39 and a

period of five years has not elapsed from the date of such

removal, unless he has, by an order of the State Government

notified in the Official Gazette, been relieved from the

disqualification arising on account of such removal from

office.

4.Learned Counsel for the Petitioners has made the following

submissions;

(i)The resolution dated 30

th

January, 2018 granting development

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permission to six villagers/ persons has been reversed/ cancelled by

the Panchayat on 30

th

September, 2019. Yet this fact has not been

adverted to either by the Add. Divisional Commissioner or by the

Hon’ble State Minister.

(ii)The resolution dated 30

th

January, 2018 unanimously passed by

the members of the Panchayat, may be illegal but that itself would not

constitute, ‘misconduct’ in the discharge of Petitioners’ duties, in terms

of Section 39(1)(i) of the Act.

(iii)that the development permissions were not acted upon, except

one.

(iv)that Panchayat had issued notices to the six persons to whom

the development permissions were granted and informed that

permissions were cancelled. They were also informed that, for

development of their plots, they may have to obtain the permission

from the Add. Divisional Commissioner, Aurangabad.

(v)That, since alleged permission have not been acted upon

(except one), no loss was caused to the Panchayat.

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(vi)Both, the Add. Divisional Commissioner and the Hon’ble State

Minister, failed to make a distinction between ‘illegality’ and

‘misconduct’.

(viii)That in appeal before the Hon’ble State Minister, Petitioners

were not granted sufficient opportunity, to plead their case and

therefore, the order of the Hon’ble State Minister was in breach of

principles of natural justice.

5.Learned Counsel for the Petitioners would also contend that the

provision of Section 39(1) read with Sub-Section 2, are to be strictly

construed inasmuch as elected person in a democracy should not be

easily removed by the order of an executive authority and it is only in

clear cases of flagrant and gross misconduct that such removal should

be resorted to. In support of this contention, he relied on the judgment

of the Division Bench, in the case of Surinder Prakash Goel Vs. The

State of Allahabad AIR 1993 Allahabad 50. It is argued although the

provisions of Section 39 (1) (a) empower Commissioner to remove

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any member or Sarpanch or Up-Sarpanch who has been guilty of

misconduct in discharge of his duties, but expression ‘misconduct’,

encompasses more than one ‘act’ or omission in discharge of the

duties and therefore ‘solitary’ or singular act, cannot be construed as

misconduct. Learned Counsel would rely on provision of Sub-Section

2 of Section 39, wherein expression ‘has been guilty of acts (as

against ‘act’) and omission’, is used. It is strenuously submitted that

granting 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 cause

notice issued by the Add. Divisional Commissioner, which makes

reference to illegal development permission and not the misconduct.

On these grounds, learned Counsel for the Petitioners seeks to quash

the impugned orders.

6.On the other hand, learned AGP has supported impugned orders

passed by the Add. Divisional Commissioner and the Hon’ble State

Minister.

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7. Reasons :Undoubtedly, the resolution dated 30

th

January, 2018

of the Panchayat, granting development permission was contrary to

the provisions of Section 52 of the Maharashtra Village Panchayats

Act, 1959 and Maharashtra Regional and Town Planning

(Amendment) Act, 2014 which mandate, that in the village, for which a

draft Regional plan or final Regional plan has been published under

the 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 village (except gaothan area of

village), without obtaining the previous permission of the Collector or

any other officer, not below the rank of Tahsildar to whom the powers

of the Collector, are delegated. Indisputably, in the case in hand,

development permission was granted not in respect of the land, falling

in the, gaothan area and therefore members of the Panchayat had no

authority to grant development permission. Be that as it may, a copy

of a permission dated 9

th

March, 2018 is on record at Page No. 35 of

the paper book. It is in the form of ‘No Objection Certificate’, It reads

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that Mr. Khadak Harka Bahaddur is granted a permission to develop a

plot no. 42 (A), after taking necessary construction permission. Thus it

was not a blanket permission, but was subject to such other necessary

permissions. Therefore, the permission dated 9

th

March, 2018 was not

a development permission but a No Objection for obtaining such other

permissions. This fact has been overlooked by both the authorities.

8.Be that as it may, even assuming the Petitioners had granted

development permission, yet, resolution which accorded permission

was cancelled by the Panchayat by subsequent resolution dated 30

th

September, 2019. Even this fact has been completely overlooked by

the Add. Divisional Commissioner, as well as by Hon’ble State

Minister. The subsequent resolution suggests that the members of

Panchayat have rectified the mistake committed by them. As stated

above, although the permission was granted to six persons except

one, other permissions were not acted upon. The material on record

shows the Panchayat had informed all six persons that the permission

granted to them, were cancelled, in the monthly meeting held on 30

th

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September, 2019. Insofar as one permission is concerned; the

Petitioner No.1 in affidavit sworn on 1

st

July, 2021 has assured this

Court, 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, granting

development permission in breach of the provisions of Section 52 was

an ‘act’ to mean to hold the Petitioners guilty of, “misconduct in

discharge of their duties within the meaning of Section 39(1) of the

said Act or was it a sheer illegal or irregular act and/ or omission in

discharge of duties” ?

. Misconduct means any behaviour which conflicts with express,

rules or implied rules. As understood, in Labour Law misconduct may

be defined as any action or behaviour which conflicts with interest of

the employer. However here expression ‘misconduct’ is to be

understood with reference to subject matter and scope of the Act and

object, it seeks to serve.

. Expression (misconduct) is a generic term. It is defined in

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Black’s Law Dictionary, Sixth Edition, as under:

“A transgression of some established and definite rule of

action, a forbidden act, a dereliction from duty, unlawful

behaviour, wilful in character, improper or wrong behaviour,

its synonyms are misdemeanour, mis-deed, misbehaviour,

delinquency, impropriety, mismanagement, offence, but not

negligence or carelessness.”

Misconduct is office has been defined as :

“Any unlawful behaviour by a public officer in relation to the

duties of his office, wilful in character. The term embraces

acts which the office holder had no right to perform, acts

performed improperly, and failure to act in the face of an

affirmative duty to act.”

10.In the case of State of Punjab Vs. Ram Singh AIR 1992 SC

2188, the Hon’ble Apex Court in Paragraph No.5 has held:

“Thus, it could be seen that the word ‘misconduct’ though not

capable of precise definition, its reflection receive its

cannotation from the context, the delinquency in its

performance and its effect on the discipline and the nature of

the duty. It may involve moral turpitude, it must be improper

or wrong behaviour; unlawful behaviour, wilful in character;

forbidden act, a transgression of established and definite rule

of action or code of conduct but not mere error of judgment,

carelessness or negligence in performance of the duty; the

act complained of bears forbidden quality or character. Its

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ambit has to be construed with reference to the subject-

matter and the context wherein the term occurs, regard being

had to the scope of the statute and the public purpose it

seeks to serve. The police service is a disciplined service

and it requires to maintain strict discipline. Laxity in this

behalf erodes discipline in the service causing serious effect

in the maintenance of law and order.”

11.As against, the expression ‘illegality’ means an act that is not

authorized by law. Expression illegal as defined in Black’s Law

Dictionary, means forbidden by law; unlawful. The definition of

‘misconduct’ reproduced above; sounds and implies a wrongful

intention and it being, relative term, it is to be construed with reference

to the subject matter. It literally means wrong conduct or improper

conduct or transgression of some established and definite rule of

action. 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 in

character and not a negligence or carelessness.

. Herein, the Panchayat was not an authority under Section 52 of

the Act to grant the development permission and therefore the

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resolution was non-est and could have been acted upon. Expression,

illegal, irregular and ‘misconduct’ being relative terms, are to be

construed with reference to subject matter. In my view, a resolution

dated 30

th

January, 2018 cannot be interpreted to mean, a wilful act in

character or unlawful behaviour of the Petitioners to render them guilty

of misconduct in discharge of official duties. At the most it would be an

act, ‘forbidden by law’ or ‘irregular exercise’ of powers. There is no

material on record to suggest that the resolution passed by the

members of Panchayat, was with wrongful intention. Besides

resolution has not been acted upon and recinded by the Panchayat

within eight months. Obviously it did not cause loss to Panchayat.

Therefore in context of the facts of the case, in my view, a resolution

passed by the Panchayat, granting development permission would not

render Petitioners, a guilty of misconduct in discharge of their duties.

Besides, one cannot overlook a fact, that the Petitioners are elected

representatives and therefore the provision of Section 39(1)(i) and (d)

were to be strictly construed. As such, the allegations against the

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Petitioners were neither gross, nor were sufficient to hold them guilty of

misconduct. Thus it is to be held, that the discretion exercised by the

Commissioner to remove the Petitioners from the office of the

Panchayat, was not well founded. Two authorities below, failed to

notice, distinction between ‘misconduct in discharge of duties’ and

‘irregularity’ in exercise of powers. As a result, in my view, in

consideration of the facts of the case and the provisions of law, the

authorities below have erred in interpreting the provision of Section 39

(1)(i) and Sub-Section 2 of the Act, in the context of the facts of the

case. Insofar as submission of the Petitioners that expression, ‘acts’

means series of acts, of misconduct and not singular act to remove

members from office, in my view, deserves no consideration because

series of acts also include singular act. The question is answered

accordingly.

12.It may be stated that application (filed in October, 2018) seeking

disqualification / removal from office of Panchayat, was filed only

against the Petitioner No.1 and a Gram Sevak. Sub-Divisional Officer

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submitted his report to the Chief Executive Officer in May, 2019.

Interestingly, the members of the Panchayat, who are the Petitioner

Nos. 2 to 9, were not the Respondents in an application filed in

October, 2018. Nor the Petitioner Nos. 2 to 9 were heard by the Block

Development Officer before submitting the report to the Chief

Executive Officer. A right to be heard, before removing from office of

Panchayat is mandatory in terms of proviso to Section 39 of the Act.

Yet they were not heard by the Block Development Officer. It may also

be stated the Respondent No.6 - Complainant, amended his

complaint/ application under Section 39-A in January, 2020 and

arraigned Petitioner Nos. 2 to 9 (members of Panchayat) as party

Respondents in the application. As a result, it is to be held that the

Respondent Nos. 2 to 9 were removed from the office of Panchayat,

without following due procedure of law. On this count also the order of

removal of the Petitioner Nos. 2 to 9 from the office of the Panchayat

passed under Section 39 (1) was not sustainable.

13.For the reasons stated above, the impugned orders dated 6

th

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February, 2020 passed by the Additional Divisional Commissioner,

Aurangabad in Appeal/CRA/119/2018 dated 6

th

February, 2020 and

order dated 10

th

February, 2021 passed by the Hon’ble State Minister

in Appeal VPM-2020/Pra.kra.27/pra-6, are quashed and set aside. In

the result, the Petition is allowed in terms of prayer clause – B. The

consequential orders shall follow forthwith.

(SANDEEP K. SHINDE, J.)

Najeeb...

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