Mr B. R. Kedar, Advocate for petitionerMr v. M. Kagne, A.G.P. for
Facts
13137.23wp(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.13137 OF 2023Karuna w/o Shamsundar Patil,Age: 34 years, Occu: Household,R/o Rohilagad, Tq. Ambad, Dist. Jalna….PETITIONERVERSUS1.The State of Maharashtra,Through the Secretary forRural Development,Mantralaya, Mumbai-322.The Divisional Commissioner, Aurangabad,The Divisional Commissioners Office,Aurangabad3.The District Collector, Jalna,The Collector Office, Jalna4.The Tahsildar, Ambad,Tahsil Office, Ambad,Dist. Jalna5.The Block Development Officer,Panchayat Samiti, Ambad,Dist. Jalna ….RESPONDENTS ….Mr B. R. Kedar, Advocate for petitionerMr V. M. Kagne, A.G.P. for respondent Nos.1 to 4/StateMr U. B. Bondar, Advocate for respondent No.5 CORAM : MANGESH S. PATILAND PRAFULLA S. KHUBALKAR, JJ. DATE : 26th February, 2025 13137.23wp(2) JUDGMENT (PER : PRAFULLA S. KHUBALKAR, J.) 1.Heard. Rule. Rule is made returnable forthwith. Heardfinally by consent of the parties.2.This petition under Article 226 of the Constitution ofIndia takes exception to the Notification dated 13/10/2023, issued bythe Joint Secretary of the Rural Development Department of theGovernment of Maharashtra, by which, the Rohilagad VillagePanchayat, Taluka Ambad, Dist. Jalna is dissolved and the ExtensionOfficer of the Panchayat Samiti is appointed as an Administrator. Theimpugned Notification issued by the Government in exercise ofpowers under Section 145 (1A) of the Maharashtra Village PanchayatsAct, 1959 (for short ‘the Act’) is on account of resignation of eightmembers of the grampanchayat, out of the body of thirteen members.3.Advocate B. R. Kedar, learned counsel for the petitionervehemently submits that the impugned Notification is grossly illegaland demonstrates arbitrary exercise of powers by the respondents. Hesubmits that the respondents have wrongly invoked the provisions ofSection 145(1A) of the Act, and in gross violation of the principles ofnatural justice, the impugned Notification was issued. He submits that
Legal Reasoning
13137.23wp(6) the total number of seats in a panchayat become vacant, the StateGovernment may, by order in the Official Gazette, dissolve suchpanchayat. It is relevant to note, the issue as to whether this provisionis mandatory or directory fell for consideration of this Court in thematter of Kavita Sakharam Chavan (supra), and while interpretingthis provision, it has been categorically held that the provision isdirectory in nature. It may thus be seen that, even when majority ofseats of panchayat fall vacant, it is not mandatory that the Governmentshould straightway dissolve the panchayat. Therefore, it has to be seenwhether dissolution of the panchayat was the only course that wasopen. 10.In view of the declaration of bye-elections for the vacantposts, further issue arises as to whether some other compellingcircumstance existed which necessitated dissolution of the panchayatinstead of going ahead for bye-elections. The respondents failed topoint out any situation, on account of which, the respondents were leftwith no other alternative but to dissolve the panchayat.For proper appreciation of the controversy, it is necessaryto have a look at the provision of Section 145 (1A) of the Act, which isreproduced below :- 13137.23wp(7) 145.(1A) If more than half the total number of seats in apanchayat have become vacant, the State Government may, byorder in the Official Gazette, dissolve such panchayat.11.Although Section 145(1A) of the Act empowers theGovernment to dissolve the grampanchayat when more than 50% ofposts of members fall vacant, the power cannot be exercised arbitrarilyto the detriment of the democratically elected members. In the instantcase, the Sarpanch and other members are holding the posts and afterelection of other members by way of bye-elections, the complete bodycould have completed remainder of the term, and as such, it is clearthat dissolution of the grampanchayat was not the only course leftopen. Pertinent to note, no compelling situation has been stated tohave arisen to stall the election process abruptly and appoint theadministrator after the bye-election was declared. 12.Apart from this, the ground raised by the petitioner aboutviolation of principles of natural justice also needs due consideration.The petitioner/Sarpanch and other members have not been affordedany kind of notice or opportunity of hearing before the major decisionto dissolve the grampanchayat was taken. There is nothing on recordto demonstrate that the petitioner and other members were heardbefore the impugned decision was taken and the Notification was 13137.23wp(8) issued. The decision to dissolve the grampanchayat, therefore, isunilateral and arbitrary.13.The legal position about the scope and ambit of Section145(1A) of the Act as to if it is mandatory or directory, has beenclarified by the decision in the matter of Kavita Sakharam Chavan(supra). Even the other issue about grant of opportunity of hearing tothe members was also decided by the division bench holding that theprovision of hearing has to be read in Section 145(1A) of the Act. Thisjudgment was also relied upon in Jahangir Yusuf Qureshi and othersVs. State of Maharashtra and others, 2008 (3) Mh.L.J. 437 and inAashabai Vilas Wagh and others Vs. State of Maharashtra andothers, 2009 (3) Mh.L.J. 74.14.By considering the factual and legal position as statedabove, we are of the considered view that the impugned Notificationdissolving the grampanchayat is arbitrary and unsustainable in law. Itwould have been proper and reasonable for the State Government toget the vacant seats filled in by way of bye-election which was alreadydeclared.
Arguments
13137.23wp(3) the elections of the grampanchayat Rohilagad were held in January2021 and the body was elected for a period of five years. Thepetitioner, who was elected as a ‘woman member’ is holding the postof Sarpanch and her term will expire in January 2026. He submitsthat, although eight members had resigned from the body of thirteenmembers, the proper course would have been to hold bye-elections foreight posts. He submits that the State Election Commission had evenissued the election notice dated 06/10/2023 for holding bye-electionwhich was due on 05/11/2023. He vehemently submits that, despitedeclaration of election for the eight seats, the respondents arbitrarilyinvoked the provisions of Section 145(1A) of the Act and withoutextending opportunity of hearing to the petitioner and other members,straightway dissolved the grampanchayat. He submits that thedecision of dissolving democratically elected body is unwarranted andgrossly illegal. In support of his submissions, he relies upon thejudgment in the matter of Kavita Sakharam Chavan and others Vs.Commissioner, Konkan Division, 2002(4) All M.R. 741 : 2003 (2)Bom.C.R. 821. 4.On the contrary, Advocate V. M. Kagne, learned A.G.P.for respondent Nos.1 to 4 and Advocate U. B. Bondar, learned counselfor respondent No.5 strongly oppose the petition. By referring to the 13137.23wp(4) affidavit-in-reply dated 14/01/2025, filed by respondent Nos.1 and 2,the learned A.G.P. vehemently submits that the impugned Notificationcame to be issued in accordance with the provisions of Section145(1A) of the Act. He submits that, out of thirteen members of thegrampanchayat, when 50% of the members i.e. eight members hadresigned from the posts, it was necessary to dissolve thegrampanchayat and appoint an administrator for its proper andeffective functioning. He refers to Rule 9(1) of the Bombay VillagePanchayats (Meeting) Rules, 1959 to contend that the quorumnecessary for transaction of business at a meeting is one half of thetotal number of members, and in view of the resignation of eightmembers, the meeting could not have been conducted by fiveremaining members. He vehemently submits that the proper course insuch situation was to dissolve the grampanchayat, as has been rightlydone by the Government.5.Advocate U. B. Bondar for respondent No.5, whilereferring to the affidavit-in-reply dated 07/02/2024, filed by BlockDevelopment Officer, Panchayat Samiti, Ambad, respondent No.5,also supports the impugned Notification and states that in view of theprevailing situation, appointment of the Village Extension Officer asan administrator was the proper course. 13137.23wp(5) 6.In the wake of above mentioned situation, the crucialissue which falls for our consideration is, as to whether the impugnedNotification to dissolve the grampanchayat was warranted and further,as to whether necessary procedure for issuance of Notification underSection 145(1A) of the Act was followed. 7.We have considered the rival submissions and perused thedocuments on record.8.It is undisputed position that the body of thegrampanchayat was elected in January 2021 for a period of five years,which term would expire in January 2026. Eight members out of thebody of thirteen members resigned and bye-elections for the vacantposts were declared vide Notice dated 06/10/2023, which wasscheduled on 05/11/2023. Before bye-elections could be held,Notification dated 13/10/2023 came to be issued, dissolving thegrampanchayat and appointing the Extension Officer as theadministrator. 9.In the wake of this factual setup, the crucial issue is, as towhether there existed a situation to take recourse to Section 145(1A) ofthe Act, to straightway dissolve the democratically elected body.Perusal of Section 145(1A) of the Act shows that, if more than half of
Decision
13137.23wp(9) 15.In the light of the above, we are of the firm view that theimpugned Notification is bad and illegal and it deserves to be quashed.Hence, we pass the following order :-(a)The writ petition is allowed. (b)Notification bearing No.MIS-2023/P.No.281/Pr.-3, dated13/10/2023 issued by respondent/Joint Secretary of RuralDevelopment Department, Mantralaya, Mumbai is quashed andset aside. (c)The respondents are directed to take necessary steps forholding bye-elections for the vacant posts of the grampanchayatRohilagad, as early as possible.(c)Rule is made absolute in above terms.(d)No order as to costs. (PRAFULLA S. KHUBALKAR, J.) (MANGESH S. PATIL, J.)sjk