High Court
Legal Reasoning
(1)902criwp635.23IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD902 CRIMINAL WRIT PETITION NO. 635 OF 2023MOHAN LAXMAN BHANDARE….Petitioner VERSUSTHE STATE OF MAHARASHTRA AND OTHERS…..Respondent WITHCRIMINAL APPLICATION NO. 2302 OF 2023 IN WP/635/2023Mr. S. S. Shinde, Advocate for the petitioner Mr. G. A. Kulkarni, APP for the respondents/State CORAM:SMT. VIBHA KANKANWADI &HITEN S. VENEGAVKAR, JJ. DATE:10th SEPTEMBER, 2025P. C. 1.The present petition has been filed invoking theconstitutional power of this court under Article 226 of theConstitution of India to challenge a latter dated 06-04-2023issued by the Chief Executive Officer, Zilla Parishad, Latur to theSuperintendent of Police, Anti Corruption Bureau, NandedRegion, Nanded thereby authorizing him or permitting him tohold an enquiry as contemplated under Section 17-A of the1 of 12 (2)902criwp635.23Prevention of Corruption Act, 1988 (Hereinafter referred to as ‘P.C. Act’).2.Heard the learned advocates for the parties.3.The learned advocate appearing for the petitionerhas submitted that one Bhagwat Fulchand Bondge, r/o Aurad,Shahajani, Tq. Nilanga, Dist. Latur an enquiry was conductedwhich is alleged to be in respect of corruption that had beencommitted by then Sarpanch and village Development Officerbetween 2001 to 2010. Without perusal of the said report thatwas then submitted impugned order or letter appears to havebeen issued. Perusal of the said report would show that thepresent petitioner who was Sarpanch for some period was notinvolved, rather, it shows that the Sarpanch and the VillageDevelopment Officer was not guilty in respect of various articlesthose were purchased and funds those were disbursed in respectof the Grampanchayat. They found that in the log book as wellas other record those have been kept in respect of consumption2 of 12
Decision
(3)902criwp635.23of fuel and repairs of the Grampanchayat’s vehicle, entries havebeen taken from 2001-2002 to 2009-2010. Likewise in almostall the headings under which expenses shown to have beenincurred the entries were found. The Block Development Officerappears to have been helped for some reason but as against thepetitioner there is absolutely no finding that he has committedany corruption or indulged in any corrupt practice. SaidBhagwat had filed a criminal writ petition No.232 of 2022before this court and by order dated 27-07-2023, the statementwas made that ACB officials are making inquiry and the matterwould be taken to the logical end. Said petition was thendisposed off. Prior to that in the same matter, the order waspassed on 29-03-2023 stating that the learned APP sought timethat in spite of communication there was no response from theState Government. The court said that if the learned APP isunable to make statement touching the merits of the matter,then respondent No. 1 shall be asked to remain presentpersonally. Thereafter, it appears that Section Officer fromVillage Development Department by letter dated 03-04-20233 of 12 (4)902criwp635.23directing him to grant permission under Section 17-A of the P. C.Act. Similar directions appears to have been issued to learnedDeputy Commissioner (Development), Divisional CommissionerOffice, Aurangabad Division, Aurangabad by letter dated 12-04-2023 and as a result of which it appears that on 06-04-2023 thatimpugned letter was issued. There was absolutely no applicationof mind by Chief Executive Officer, Zilla Parishad, Latur. In theinquiry the petitioner was held to be not responsible, then itwould be unjust to ask the petitioner to face further procedure.Said letter deserves to be quashed and set aside.4.Learned APP appearing for respondent Nos. 1 to 3submitted that it is not the case that under pressurize the CEOhas taken these steps. Though the preliminary inquiry has beenmade, it will have to be read in toto and it has been then statedthat certain amounts have been taken as spent on items likeGramvikas Nidhi. Year-wise entries have been checked and theyare reflected in the report. The period, in which, the presentpetitioner was Sarpanch has been also given and it can be seen4 of 12 (5)902criwp635.23that almost from 01-04-2001 till 31-03-2010 he was a Sarpanch.Conclusion has been given by the Enquiry Officer from para No.1 to 6 and then opinion has been given. In the opinion, it mightnot be stated that Sarpanch is also responsible. However, wheneach and every fact has been taken in para Nos. 1 to 6 it hasbeen mentioned that Sarpanch and the then Gramsevak wereresponsible. Under such circumstance, open enquiry has beenordered and it would be taken to the logical end. For thatpurpose permission has been granted. No fault can be found inthe communication dated 06-04-2023.5.The present foremost fact when it requires to benoted is that whether authority who had issued letter dated 06-04-2023, whether had authority to grant previous approval ascontemplated under Section 17-A of the P. C. Act for thatpurpose, we would like to reproduce the relevant portion ofsection 17-A of the P. C. Act which reads as under:“No police Officer shall conduct anyenquiry or inquiry or investigation into any offence5 of 12 (6)902criwp635.23alleged to have been committed by a public servantunder this Act, where the alleged offence relatable toany recommendation made or decision taken bysuch public servant in discharge of his officialfunctions or duties, without previous approval.a]***b]***c]In the case of any other persons, of theauthority competent to remove him from his office,at the time when the offence was alleged to havebeen committed. “****” Provided further that concernedauthority shall convey its decision under this sectionwithin a period of three months, which may forreasons to be recorded in writing by such authority,be extended by a further period of one month.” 6.That means what is contemplated as regards a6 of 12 (7)902criwp635.23Sarpanch is concerned, that such previous approval should begranted by the authority competent to remove him from hisoffice at the time, when offence alleged to have been committed.7.After considering the provisions, we adjourned thematter for today for submission of the parties especially thelearned APP to show that the CEO, Zilla Parishad, Latur is theauthority to grant previous approval as contemplated underSection 17-A (c) of the P. C. Act.8.Learned advocate for the petitioner points outsection 39 of the Maharashtra Village Panchayats Act which runsthus:“39-A-Power of Government to direct inquiry.(1)Notwithstanding anything contained in section39, the State Government may, suo motu or anapplication made to it against any member,Sarpanch, or Upa-Sarpanch regarding any act oromission specified in sub-section (1) of Section 39,7 of 12 (8)902criwp635.23direct the Chief Executive Officer concerned to holdan inquiry against such member, Sarpanch or, as thecase may be, Upa-Sarpanch, and submit its report,within a period of one month, to the Commissioner.(2)The Commissioner shall, after giving areasonable opportunity of being heard to thepanchayat and the person concerned, take adecision, within a period of one month, on theinquiry report.(3)Any person aggrieved by an order of theCommissioner under Sub-Section (2), may, within aperiod of fifteen days from the date of receipt ofsuch order, appeal to the State Government and thedecision of the Government thereon shall be final.”9.He submits that the learned Commissioner hasauthority to remove a Sarpanch and as per proviso, the CEO isempowered to hold an inquiry after giving notice to theconcerned persons. No such activity appears to have been8 of 12 (9)902criwp635.23undertaken in this case. Even if for the sake of argument, it isstated that there was an inquiry, yet in the letter dated 06-04-2023, there is absolutely no mentioned further CEO cannot besaid to be a authority who can remove a Sarpanch, only thelearned Commissioner is has the authority and therefore, on thiscount, the said letter deserves to be quashed and set aside.10.Learned APP then points out section 16 M. V. P. Act .He submits that CEO has exercised same powers upon letterdated 03-04-2023 by the Village Development Officer. When theGovernment has directed, said approval has been granted.Inquiry was also held by the BDO (Class-1) Panchayat Samiti,Nilanga and has submitted report. Report shows that there areirregularities amounting to corruption and it was going on since2001. It is, necessary therefore, to have a detail inquiry throughthe ACB.11.We have considered section 39 as well as 39-A of theMaharashtra Village Panchayats Act. Section 39-A M. V. P. Act9 of 12 (10)902criwp635.23prescribes about the powers of the Government to direct theinquiry and it starts with non-obstinate clause in respect ofsection 39 M. V. P. Act that means, it is also an independentpowers of the government to be exercised either suo-motu on anapplication to take it against any member, Sarpanch or Up-sarpanch regarding any act of omission specified in sub-section 1of section 39 M. V. P. Act. The Government can direct CEO tohold an inquiry against such persons and then report is requiredto be submitted within a month to the learned Commissioner.The letter dated 03-04-2023, is on record. Perusal of the samewould show that there is straightway direction to the CEO togrant approval under Section 17-A of the PC Act. It is thenstated that since the complaint–application by the said Bhagwatraises point of corruption that approval should be granted. Thisletter cannot be by any stretch of imagination considered underSection 13-A(1) of the Maharashtra Village Panchayats Act thatpower to direct CEO to hold an inquiry is reflected in respect ofact or omission specified in sub-section 1 of section 39 M. V. P.Act and then after an inquiry, report has to be submitted to the10 of 12 (11)902criwp635.23learned Commissioner. Sub-section 2 of section 39-A of theMahareashtra Village Panchayats Act provides that the learnedCommissioner shall after giving a reasonable opportunity ofbeing heard to the Panchayat and concerned persons take adecision within a period of one month on the inquiry report.Sub-section 3 of Section 39-A M. V. P. Act then gives remedy tothe persons aggrieved to file an appeal to the State Governmentchallenging the decision / order of the learned Commissioner.Here, in the present case, learned Commissioner is not at allcoming in picture. Further, if we considered letter dated 12-04-2023 by Section Officer, Village Development Departmental toDeputy Commissioner (Development), the learned DivisionalCommissioner Office, Aurangabad Division, it can be seen that itrefers to letter dated 03-04-2023, given to the Chief ExecutiveOfficer for grant of approval under Section 17-A of the P. C. Act.Conjoint reading of section 39 and 39-A of the MaharashtraVillage Panchayats Act would make it clear that the power toremove a Sarpanch is with the learned Commissioner and notwith the CEO. When the letter dated 06-04-2023 is issued by the11 of 12 (12)902criwp635.23officer who is not competent as contemplated under Section 17-A of the PC Act, said order deserves to be quashed and set aside.Therefore, we proceed to allow the criminal writ petition.12.In view of above, the criminal writ petition standsallowed in terms of prayer clause-B.13.In view of disposal of the criminal writ petition,pending criminal application does not survive and standdisposed off. [HITEN S. VENEGAVKAR, J.] [SMT. VIBHA KANKANWADI, J.]VishalK/902criwp635.2312 of 12