Writ Petition No. 6505 of 2022 · The High Court
Case Details
- 1 - wp6505.22.odt IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 6505 OF 2022 Petitioners 1. 2. 1. 2. 3. 4. 5. 6. Laxmibai w/o Sitaram Kankhar age 82 years, occ. Sarpanch, r/o Deolgaon Ugale, Tq. Jafrabad Dist. Jalna. Ashok s/o sitaram kankhar age 51 years, occ. Agriculture r/o Deolgaon Ugale, Tq. Jafrabad, Dist. Jalna. Versus The State of Maharashtra Through its Principal Secretary Rural Development Department, Mantralaya, Mumbai 32. The Divisional Commissioner Aurangabad Division, Aurangabad Dist. Aurangabad. The Collector, Jalna, Dist. Jalna. Uttam s/o Fakirba Ugale age 50 years, occ. Agriculture r/o Deolgaon Ugale, Tq. Jafrabad Dist. Jalna. The Secretary/Gramsevak, Village Panchayat, Deolgaon Ugale Pimpalkhuta, Tq. Jafrabad Dist. Jalna. The Bank of Maharashtra Branch Jafrabad, Tq. Jafrabad Dist. Jalna. - 2 - wp6505.22.odt Respondents
Legal Reasoning
Prima facie, there is some force in this contention; but whatever may be the exact denotation of this clause, it does serve the purpose of which incurs disqualifcation prescribed by the clause and it would not be easy to ignore the existence of the last portion of the clause altogether. 8. It is quite true that the purpose and the object of prescribing the several disqualifcations enumerated in Cls. (a) to (1) of S. 15 of the Act is to ensure the purity of the administration of Municipal Committees, and in that sense, it may be permissible to hold that the different clauses enumerated in S. 15 should not receive an unduly narrow or restricted construction. But even if we were to adopt a liberal construction of S. 15(1); we cannot escape the conclusion that the interest or share has to be in the contract itself. When we are enquiring as to whether - 8 - wp6505.22.odt the appellant is interested directly or indirectly in the employment of his son, we cannot overlook the fat that the enquiry is not as to whether the appellant is interested in the son, but the enquiry is whether the appellant is interested in the employment of the son. The distinction between the two enquiries may appear to be subtle, but, nevertheless, for the purpose of construing the clause, it is very relevant. Considered from this point of view, on the facts proved in this case, we fnd it diffcult to hold that by mere relationship with his son, the appellant can be said to be either directly or indirectly interested in his employment. 13. A similar question had fallen for consideration in the case of Dhrupadabai Laxmanrao Mhaske (supra). In this case, the Sarpanch of Gram Panchayat Shelur had employed her son for release of water supply in the village on temporary basis. Relying on the case of Gulam Yasin (supra), this Court has recorded the following observations : 6. It has been held in the aforesaid decision that, “the interest to which the clause refers cannot mean mere sentimental or friendly interest; it must mean interest which is pecuniary, or material or of similar nature. If the interest is of this latter category, it would suffce to incur disqualifcation even if it is indirect”. - 9 - wp6505.22.odt It has further been held thus : “Even if, we were to adopt a liberal construction of section 15(1), we cannot escape the conclusion that the interest or share has to be in the contract itself. The person sought to be disqualifed must “own such share or interest”. When we are enquiring as to whether the appellant is interested directly or indirectly in the employment of his son we cannot overlook the fact that the enquiry is not as to whether the appellant is interested in the son, but the equiry is whether the appellant is interested in the employment of the son. The distinction between the two enquiries may appear to be subtle, but nevertheless, for the purpose of construing the clause, it is very relevant. Considered from this point of view, on the facts proved in this case, we fnd it diffcult to hold that by mere relationship with his son, the appellant can be said to either directly or indirectly interested in his employment. 14. This Court held that the enquiry has to be whether the petitioner has pecuniary or material or similar nature of interest in the Gram Panchayat and not as to whether the petitioner is interested in her son. Mere relationship of petitioner with her son would not attract provisions of the said Act. - 10 - wp6505.22.odt 15. Again, this question had fallen for consideration before the learned Single Judge of this Court in the case of Sugandha Manik Waghmode (supra). In this case, the Sarpanch by abusing her powers as Sarpanch had provided contract to her brother-in-law and therefore, incurred disqualifcation under Section 14(1)(g) of the Maharashtra Village Panchayats Act. Relying on the case of Dhrupadabai (supra), this Court recorded the following observations :- 7. In the present case, I fnd that the authorities below except for stating that the petitioner is closely related to the person to whom the contract is awarded have not tendered any fnding or conducted an enquiry as to whether the petitioner has pecuniary or material or similar nature of interest in the contract awarded. In this view of the matter, the impugned orders are unsustainable. 16. From these authorities what emerges is that enquiry must be in the direction as to whether the Sarpanch has pecuniary or material or a similar nature of interest in the Gram Panchayat. Mere relationship of the Sarpanch with the person to whom contract is given would not incur disqualifcation. In the case at hand also, - 11 - wp6505.22.odt the enquiry did not proceed on the principles laid down in the aforesaid case. It proceeded simply on the relationship between petitioners No. 1 and 2. The case of Ashriyabegum (supra) is not applicable to the case at hand because in this case, the society to whom the contract was allotted had the father-in-law of the petitioner as its Chairman, the father of the petitioner as the Secretary, the mother-in-law of the petitioner as a director, three relatives being the directors, four cousins, two uncles, two aunts and a grandmother being the members of the said society. It was held by this Court that the petitioner may not have a demarcated monetary share in the business of the said society but she defnitely has an interest indirectly in promoting the cause of the society in view of the relations involved in the business of the society. 17. This Court in the case of Ashiyabegum (supra) recorded a clear fnding that the Sarpanch of Gram Panchayat Latifpur had an indirect interest in promoting the cause of the society. In the case at hand, no such evidence is produced on record to show that petitioner No. 1 had any pecuniary interest or any material interest in the Gram Panchayat. Therefore, merely because petitioner No. 1 is the mother of petitioner No. 2 and the contract is granted to petitioner No. 2, will - 12 - wp6505.22.odt not suffce for incurring disqualifcation under Section 14(1)(g) of the Maharashtra Village Panchayats Act. 18. In this view of the matter, both the authorities below committed error. Therefore, their decisions need to be set aside. Petition is, therefore, allowed in terms of prayer clause ‘C’. Rule made absolute in above terms. ( M. G. SEWLIKAR ) Judge dyb
Arguments
Mr. A. R. Devkate, Advocate for the petitioners. Mr. S. N. Morampalle, AGP for respondents No. 1 to 3. Mrs. Rutuja L. Jakhade, Advocate for respondent No. 4. Mr. S. V. Deshpande, Advocate for respondent No. 6. CORAM : M.G. Sewlikar, J. DATE : 23rd AUGUST, 2022. ORAL JUDGMENT : Rule. Rule made returnable forthwith. By consent of the parties, heard fnally at the stage of 1. 2. admission. 3. Petitioner No. 1 was elected as Sarpanch of Group Grampanchayat Deolgaon Ugale-Pimpalkhuta, Tq. Jafrabad, Dist. Jalna. In the year 2018, TCS powder was to be purchased by Gram Panchayat. Therefore, work was provided to petitioner No. 2 who is the son of petitioner No. 1. In the year 2018, drainage cleaning work was also allotted to petitioner No. 2. 4. On 15th February, 2021, respondent No. 4 made - 3 - wp6505.22.odt application for disqualifcation of petitioner No. 1 on the ground that she had an interest in the work allotted to petitioner No. 2 i.e. purchase of TCS powder and cleaning of drainage as petitioner No. 2 is her son. 5. After receipt of this complaint, the Collector issued notice to petitioners No. 1 and 2. Both the petitioners fled reply and admitted that the contract of purchase of TCS powder was given to petitioner No. 2 and that the work of cleaning drainage was also given to petitioner No. 2. It was contended that though petitioner No. 1 is the mother of petitioner No. 2, she had no interest in the contract of purchase of TCS powder and the work of drainage cleaning. It was further contended that this work was given to petitioner No. 2 by the Gram Panchayat after passing of resolution. 6. On 18th January, 2022, the Collector allowed the dispute application and disqualifed petitioner No. 1 as Sarpanch. Petitioners No. 1 and 2 preferred appeal before the Divisional Commissioner. The Divisional Commissioner dismissed the appeal vide order dated 17th May, 2022. This order is impugned in this petition. - 4 - wp6505.22.odt 7. Heard Shri Devkate, learned counsel for the petitioners and Mrs. Jakhade, learned counsel for respondent No. 4. 8. Learned counsel for petitioner submits that petitioner No. 1 is admittedly the mother of petitioner No. 2. However, mere having blood relation is not a factor which would entail disqualifcation as Sarpanch of the Gram Panchayat. He submits that for disqualifcation the petitioner should have direct or indirect interest in the contract to be allotted. He submits that except the admitted relations of petitioners No. 1 and 2, nothing is placed on record to show that petitioner No. 1 had any interest in the contract. For this purpose, he has placed reliance on the following cases :- i) ii) iii) Gulam Yasin Khan vs. Sahebrao Yeshwantrao Walaskar and another, AIR 1966 Supreme Court 1339 Dhrupadabai Laxmanrao Mhaske vs. Additional Commissioner Amravati 2015(4) Mh.L.J. 509 Sou. Sugandha Manik Waghmode vs. Shri Tukaram Ramchandra Khandekar Writ Petition No. 3000 of 2018. 9. Mrs. Jakhade, learned counsel for respondent No. 4, submits that petitioner No. 1 is the mother of petitioner No. 2. - 5 - wp6505.22.odt Therefore, having regard to this this relation, the contract was given to petitioner No. 2. She further submits that the relation itself is a factor which shows that petitioner No. 1 had direct interest in the contract with the Panchayat or under the Panchayat. She further submits that no bill were presented to the Panchayat about the work carried out by petitioner No. 2. For this purpose, she placed reliance on judgment in the matter of Arshiyabegum Shaikh Rabib vs. The State of Maharashtra and others in Writ Petition No. 7298/2019. 10. I have given thoughtful consideration to the submissions of learned counsel for both the sides. 11. Section 14(1)(g) of the Maharashtra Village Panchayat Act reads thus :- 14. Disqualifcation (1) No person shall be a member of a Panchayat continue as such, who - (g) has directly or indirectly, by himself or his partner, any share or interest in any work done by order of the Panchayat, or in any contract with, by or on behalf of, or employment with or under, the Panchayat; - 6 - wp6505.22.odt 12. Apart from relationship, what is to be proved is that a member of Panchayat should have any direct or indirect interest or any share in any work done by or under Panchayat in any contract. In the case of Gulam Yasin Khan (supra) the Hon’ble Apex Court was called upon to interpret the provisions of Section 15(1) of C.P. and Berar Municipalities Act. The provisions appear to be in pari materia with Section 14(1)(g) of the Maharashtra Village Panchayats Act. The Hon’ble Apex Court in paragraphs No. 7 and 8 of the judgment has made the following observations :- 7. The question which we have to consider is whether by virtue of his relationship with Khalildad Khan, the appellant can be said to have any indirect share or interest in the employment of Khalildad Khan with the Municipal Committee. We are assuming for the purpose of dealing with this point that the contract to which CI. (1) refers, includes employment, though unlike other similar statutes, the word “employment” is not specifcally mentioned in the said clause. In order to incur disqualifcation, what the clause requires is “interest or share in any contract”: it may either be a share or an interest: and if it is an interest, the interest may be direct or indirect. But it is plain that the interest to which the clause refers, cannot mean mere sentimental or friendly interest; it must mean interest which is pecuniary, or material, or of a similar nature. - 7 - wp6505.22.odt If the interest is of this latter category, it would suffce to incur disqualifcation even if it is indirect. But it is noticeable that the clause also requires that the person who incurs disqualifcation by such interest must “own such share or interest”. It is not easy to determine the scope of the limitation introduced by this last sub- clause. Mr. Gauba for respondent No. 1 urged that the clause “owning such share or interest” is tautologous when it refers to direct interest or share, and is meaningless when it refers to indirect share or interest.