WP.6999.23 v. Additional Commissioner Amravati

Heard Shri S.D.Chande, the learned counsel for the petitioner and Shri M.K.Pathan, learned AGP, who waives service of notice for respondent no1.

By instituting this petition under Article 226 of the Constitution of India, a prayer has been made to quash the proceedings pending before the Additional Commissioner, Amravati Division, under section 39(1) of the Maharashtra Village Panchayats Act, 1959 (in short “the Act”). Another prayer made in this petition is that some independent Inquiry Officer in the rank of Chief Executive officer be appointed for enquiring into the complaints made by the petitioner, who is a Sarpanch of Gram panchayat Kinhi Raja. 2 WP.6999.23

Submission on behalf of the petitioner is that the proceedings have been initiated on the complaint made by the respondent no.3 not to the Commissioner/Additional Commissioner, but to the Chief Executive officer. It has also been argued that in terms of requirement of provisions to Section 39(1) of the Act the enquiry has to be conducted by the Chief Executive officer whereas in the instant case, the inquiry has been conducted by some officer who is subordinate to the Chief Executive officer. In view of this, the proceedings pending before the Additional Commissioner are vitiated as the same are not in conformity with the requirement of provisions of Section 39(1) of the Act.

The learned AGP has opposed the petition and submitted that in terms of Section 39(1) of the Act, it is not necessary to make the complaint to the Commissioner/ Addl. Commissioner. According to him, the provision is that the Commissioner shall remove any Sarpanch provided proceeding before the Commissioner is preceded by an enquiry to be conducted by the Chief Executive officer into the complaint made against the Sarpanch. His further submission is that that enquiry has not been conducted in this case by the Chief Executive Officer but by his subordinate can be raised by the petitioner while submitting his reply as per the requirement of Section 39 (1) of the Act itself.

We have considered the submissions made by the 3 WP.6999.23 respective parties and considered the provisions of Section 39(1) of the Act . As per the scheme of Section 39 of the Act, it is the Commissioner who has been vested with the power to remove the sarpanch or upsarpanch if such a sarpanch or upsanrach is found to be guilty of misconduct in discharge of his duty or some disgraceful conduct or of neglect or incapacity to perform his duty or he has persistently failed to discharge his duty. The first proviso to Section 39(1) prohibits removal of any sarpanch or upsarpanch unless the Chief Executive officer conducts an enquiry into the allegations or the complaint against the saprnach or upsarpanch. The second proviso appended thereto clearly provides that the Commissioner can pass an order of removal only after giving the person concerned opportunity of being heard. Thus, a bare perusal of Section 39 does not indicate that the machinery as contemplated in Section 39(1) can start moving only if complaint is made to the Commissioner.

In the aforesaid view of the matter, the first contention made by the learned counsel for the petitioner merits rejection and is hereby rejected.

As regards the second submission that the enquiry has not been conducted by the Chief Executive officer rather by some of his subordinate officer, we may only observe that in this regard the second proviso gives ample opportunity to the petitioner, which can be availed of by filing a reply before 4 WP.6999.23 the Commissioner where the proceedings are pending.

For the reasons stated above, we are not inclined to interfere in this petition. However, we provide that in case the final decision u/s 39(1) of the Act has not been taken by the Commissioner, it will be open to the petitioner to raise all the issues and pleas before the Commissioner and accordingly, the Commissioner before arriving at the final decision, shall also give opportunity of being heard to the petitioner and will take appropriate decision.