Kisan Khanpatte And OthersVERSUSAdditional Divisional Commissioner And OthersMr v. D. Hon Sr. Counsel h
Legal Reasoning
has been issued in the form of complaint made by the petitioners to theBlock Development Officer. Perusal of the said letter indicates that it wasgrievance of these petitioners that though they attended the meetings,false record is created showing their absence. This individual stand wasnot taken before the authorities below. The only stand was for want ofreceipt of notice, the petitioners could not attend prima facie meetings.Thus, both stands taken seem not to be acceptable. Having regard to theafore stated facts and considering the conclusive nature of evidencebefore the authorities, this Court finds no merit in the petition. Hence,petition is dismissed.(R. M. JOSHI, J.)bsj930-WP-862-2024.odt7 of 7
Arguments
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 862 OF 2024Shrimati Hiramani Kisan Khanpatte And OthersVERSUSAdditional Divisional Commissioner And OthersMr. V. D. Hon Sr. Counsel h/f Mr. P. P. Uttarwar, Advocate for petitionerMrs. M. N. Ghanekar, AGP for respondent/StateMr. S. B. Pulkundwar, Advocate for respondent Nos. 2 and 3Mr. U. B. Deshmukh, Advocate for respondent No. 4CORAM: R. M. JOSHI, J.DATE: 21st January, 2025PER COURT :-1.By consent of both sides, heard finally.2.This petition takes exception to the order passed by theAdditional Commissioner, Aurangabad rejecting appeal filed by thepetitioner under Section 40 of the Maharashtra Village Panchayat Act( for short “the Act”), taking exception to the order passed by ChiefExecutive Officer (CEO), Zilla Parishad, Nanded by which the petitionerswere disqualified as the members of Gram Panchayat, Naygaon (Khurd).3. Respondent No. 4 invoked provisions of Section 40 of the Actfor seeking disqualification of the petitioners as members of GramPanchayat. On the basis of the proceedings initiated by them, the CEO ofZilla parishad, Nanded passed order dated 16.06.2023 whereby it was930-WP-862-2024.odt1 of 7 held that the petitioners failed to attend six consecutive monthlymeetings held by the Village Panchayat and thus, in view of Section 40,they become disqualified to hold the said post. This order was takenexception before the Additional Commissioner, Aurangabad and the saidappeal came to be rejected by order dated 01.01.2024. Hence thispetition.4.It is the case of the petitioner that the respondent No. 4 ispolitical rival of the petitioner and that with mala fide intention and incollusion with the respondent No. 2, preferred an application underSection 40 of the Act. It is further case of the petitioners that they didnot receive notices of the concerned monthly meetings. It is also claimedthat the relevant period was affected by Covid 19 pandemic and owing tothe said reason, if there is any absence, the same cannot become areason for disqualification. It is also case of the petitioner that bothauthorities below have failed to take into consideration the relevantevidence on record and have not recorded the reasons for passing theorder.5.Heard learned senior counsel appearing on behalf of thepetitioners. He has drawn attention of the Court to the documents placedon record i.e., notices received of the monthly meetings. According tohim, there are discrepancies in the signature of petitioner Mamata. In so930-WP-862-2024.odt2 of 7 far as petitioner Mamata is concerned, it is contended that her thumbimpression does not appear on notice dated 20.04.2022 for meeting of30.04.2022. It is also sought to be contended that on notice dated20.11.2021, signature of petitioner Ayesha does not appear. With respectto petitioner No.1, Smt. Hiramani, it is contended that notice was notduly served upon her for the meeting dated 30.12.2021 and that herabsence in meetings dated 26.08.2021, 27.09.2021, 22.10.2021 and26.11.2021 was in view of the Covid pandemic period. Thus, it is hiscontention that in absence of any concurrent proof about the service ofnotice, it cannot be held that in spite of service of notice, the petitionershave failed to attend the meetings concerned. He has also drawnattention of the Court to impugned orders in order to contend that theorders are un-reasoned order. Hence, require interference. To support hisjudgment, he placed reliance on the judgment of Shri. Manohar s/o.Dnyaneshwar Pote Vs. The Collector, Jalna and others in WritPetition No. 9427/2022.6.Learned counsel for respondent No. 4 supported theimpugned orders.7.At the outset, the relevant provisions of Section 40 needs tobe considered and the same is reproduced herein below:-(1) Any member of a panchayat who, during his term of930-WP-862-2024.odt3 of 7 office,-(a) is absent for more than four consecutivemonths from the village, [(such absence not being onaccount of his being a Chairman or Deputy Chairman ofa Panchayat Samiti)], unless leave not exceeding sixmonths so to absent himself has been granted by thepanchayat, or(b) absents himself for six consecutive monthsfrom the meetings of the panchayat, without the leaveof the said panchayat,shall cease to be a member and his office shall be vacant.[(2) If any question whether a vacancy has occurredunder this section is raised by the President of ZillaParishad suo motu or an application made to him inthat behalf, the President shall as far as possible decidethe question within sixty days from the date of receiptof such application. Until the President decides thequestion, the member shall not be disabled fromcontinuing to be a member of the panchayat. Anyperson aggrieved by the decision of the President may,within fifteen days from the date of such decision,appeal to the State Government, and the decision ofthe State Government in appeal shall be final:Provided that, no decision shall be given underthe sub-section by the President against any memberwithout giving him a reasonable opportunity of beingheard.](3)Whenever leave is granted under sub-section (1)to a member who is an Upa-Sarpanch another membershall, subject to the conditions to which the electionUpa-Sarpanch so absenting himself was subject beelected to perform all the duties and exercise all thepowers of an Upa-Sarpanch during the period for which930-WP-862-2024.odt4 of 7 such leave is granted.This provision indicates that it is open for a member of GramPanchayat to seek leave for his/her absence in a monthly meeting. Thereis no case that it was not open for the petitioners herein to seek leave ofabsence from the concerned authority. If the petitioners were not in aposition to attend the meetings in question, the whole purpose ofenacting this provision is to ensure that the citizens who are members ofGram Panchayat take care of their interest by participating in themonthly meetings held by the Gram Panchayat.8.Here, in this case, though the case sought to be made out bythe petitioners that they did not receive notice of the monthly meetings,there is no specific plea raised before the authorities below that therecord which indicates about their acknowledgment of receipt of thenotice of the meeting are not acknowledged by them. In absence of anysuch specific contention, it is not open for the petitioner in this petition toraise that issue for the first time. It is pertinent to note that documentsin respect of monthly meetings are recorded in due course of thebusiness of the Gram Panchayat. Unless and until contrary is proved, therecord of the Gram Panchayat cannot be displayed.9.The record placed before the CEO clearly indicates that therewas service of notice of meeting to petitioner Nos. 1 and 2 of meetings930-WP-862-2024.odt5 of 7 dated 26.08.2021, 27.09.2021, 22.10.2021, 26.11.2021, 30.12.2021and 25.01.2022, notice to petitioner No. 3 of 26.11.2021, 30.12.2021,25.01.2022, 28.02.2022, 31.03.2022, 30.04.2022. Similarly, there isattendance register indicating the presence of the members of GramPanchayat in the said meeting. The said evidence indicates that presentpetitioner did not attend the meetings as alleged in the application filedby respondent No. 4.10.It was contended before the CEO as well as the DivisionalCommissioner that the relevant period was affected by Covid 19Pandemic. Though, such statement is made, there is nothing placed onrecord to indicate that the conduct of the meeting during the relevantperiod was prohibited into the pandemic situation. Apart from this,admittedly, petitioner No. 3 has attended monthly meetings on26.08.2021, 29.07.2021 and 22.10.2021. This indicates that even for theperiod prior to the alleged absence, she could attend the meeting. Thus,there is no substance in the contention that owing to the Covid 19pandemic situation, the meeting could not be attended. In any case, itwas open for the petitioner to take leave of absence from the authoritiesconcern. Admittedly, no such leave is sought.11.Though, Exhibit H (Page 85) filed along with petition is notpart of the proceedings before the authorities below, however, this letter930-WP-862-2024.odt6 of 7