Nanasaheb vs Additional Collector on 15 February, 2010

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           IN THE HIGH COURT OF JUDICATURE OF BOMBAY,




                                                                
                        BENCH AT AURANGABAD




                                        
                  WRIT PETITION NO. 4660 OF 2009




                                       
    Nanasaheb s/o Dhondiram Mundhe,
    R/o Khandali, Tq. Gangakhed,
    District Parbhani.                                     PETITIONER
              VERSUS




                               
    1.   Additional Collector, Parbhani.
    2.   Gram Sevak,
         Gram Panchayat, Khandali,
         Tq. Gangakhed, Dist. Parbhani.
    3.   Gangasagar w/o Datta Pawar
                   
    4.   Datta s/o Maroti Pawar
    5.   Laxman s/o Nivrati Jangale
    6.   Dnyanoba s/o Bhanudas Bhosle
    7.   Chandrakala w/o Manikrao Pawar
    8.   Sangram s/o Manikrao Pawar
      


         All r/o Khandali, Taluka
         Gangakhed, Dist. Parbhani.                        RESPONDENTS
   



         .....

Mr. S.V. Mundhe, advocate for the petitioner.
Mr. N.N. Jadhav, AGP for the respondent/State.

Mr. S.S. Thombre, advocate for respondents No. 4,
6 and 7.

…..

[CORAM : V.R. KINGAONKAR, J.]

[DATE : 15th February, 2010]

ORAL JUDGEMENT :

1. Challenge in this petition is to order rendered

by learned Additional Collector, Parbhani, in

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proceedings under section 7 of the Bombay Village

Panchayat Act, 1958 (for short, “the BVP Act”) read with

Rule-3 (1) of the relevant Rules bearing No.

209/A-2/VP/CR-5. By the impugned order, the petitioner

was disqualified as Sarpanch of village panchayat,

Khandali and was, therefore, discontinued to occupy the

post.

2.

Indisputably, the petitioner was elected as

Sarpanch of village panchayat, Khandali in the month of

August, 2005. He continued to work as such till passing

of the impugned order. The respondents No. 3 to 8 filed

application before the learned Collector, alleging that

the petitioner was disqualified to continue as Sarpanch

of the village panchayat because he had not held

required number of Gram Sabha meetings and thereby had

incurred disqualification under section 7 (1) of the BVP

Act. The petitioner was called upon to explain lapses

alleged in the application filed by the said

respondents. He denied the lapses and also submitted

that there were defects in arranging the required number

of Gram Sabhas at the initial stage because he became

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Sarpanch during midst of the year. The learned

Additional Collector heard the parties. He called for

report from the Block Development Officer, Gangakhed.

He noticed that the meetings of the Gram Sabha were not

called strictly in accordance with Section 7 (1) of the

BVP Act and Rule-3 (1) of the Bombay Village Panchayat

(Gram Sabha Meetings) Rules, 1959 (hereinafter referred

to as “the BVP Rules”). Consequently, by the impugned

order, the petitioner was held disqualified to continue

as Sarpanch and the direction was given to initiate

disciplinary action against the Gram Sevak.

3. Crucial question involved in this petition is :

“Whether the petitioner incurred

disqualification for the reason that he did not

hold the six Gram Sabha meetings during the

relevant financial year of his tenure in the

office, as required under Section 7 (1) of the

BVP Act ?”

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4. Heard learned counsel.

5. It is of paramount significance to consider

actual requirement of section 7 (1) of the BVP Act.

For, epicentre of the controversy revolves around

interpretation of sub-section (1) of section 7 of the

BVP Act. The petitioner’s contention is that the

requirement was of holding atleast four (4) Gram Sabha

meetings and not six (6) Gram Sabha meetings during the

financial year. The Additional Collector took the view

that holding of six (6) Gram Sabha meetings was

mandatory. The next important aspect of the matter is

whether the Rule 3 (1) of the BVP Rules is of mandatory

nature or it is directory in nature notwithstanding use

of expression “shall” in the language thereof. Needless

to say, proper interpretation of sub-section (1) of

section 7 and Rule 3 (1) is necessitated due to the

nature of controversy in this petition.

6. Before I proceed to consider the rival

submissions regarding the purport and meaning of section

7 (1), it may be noticed that section 7 (1) has

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undergone changes due to intervening amendments after

passing of the enactment in 1958.

7. The juxtaposition of section 7 (1) as it

existed after amendment on 14-09-1994, was as below :

“7. (1) There shall be held at least two

meetings of the Gram Sabha every financial year
on such date, at such time and place, as may be

prescribed and if the Sarpanch, or in his
absence the Upa-Sarpanch fails without

sufficient cause, to hold any one of such two
meetings, he shall be disqualified for
continuing as Sarpanch or, as the case may be,

Upa-Sarpanch or for being chosen as such for

the remainder of the term of office of the
members of the panchayat. The decision of the
Collector on the question whether or not there

was such sufficient cause shall be final;
Provided that, the Sarpanch may, at any time of
his own motion, and, shall, on requisition of
the Standing Committee, Panchayat Samiti, or

Chief Executive Officer, call a meeting of the
Gram Sabha within the period specified in the
requisition; and, on failure to do so, the
Chief Executive Officer shall require the Block
Development Officer to call the meeting within

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fifteen days from the date he is so required to

do. The meeting shall, notwithstanding the
provisions of sub-section (3), be presided over

by him or any officer authorised by the Block
Development Officer, in that behalf.”

8. It appears that prior to amendment by virtue of

Maharashtra Act No. 21 of 2000, Section 7 (1)

contemplated that there shall be held at least three (3)

meetings of the Gram Sabha every financial year. The

words “three meetings” were substituted by the words

“four meetings” by virtue of amendment under the

Maharashtra Act No. 21 of 2000.

9. Section 7 (1) prior to the Amendment Act No.

III of 2003 read as under :

“7 (1) There shall be held at least four

meetings of the Gram Sabha every financial year
on such date, at such time and place, and in
such manner, as may be prescribed and if the
Sarpanch, or in his absence the Upa-Sarpanch
fails, without sufficient cause, to hold any of
such four meetings, he shall be disqualified

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for continuing as Sarpanch or, as the case may

be, Upa-Sarpanch or for being chosen as such
for the remainder of the term of office of the

members of the panchayat; and the Secretary of
the panchayat shall also if, prima facie, found
responsible of any lapse in convening such

meeting, be liable to be suspended, and for
being proceeded against, for such other
disciplinary action as provided under the

relevant rules. The decision of the Collector

on the question whether or not there was such
sufficient cause shall be final.

Provided, that the Sarpanch may, at any time of
his own motion, and, shall, on requisition of
the Standing Committee, Panchayat Samiti, or

Chief Executive Officer, call a meeting of the
Gram Sabha within the period specified in the

requisition; and, on failure to do so, the
Chief Executive Officer shall require the Block

Development Officer to call the meeting within
fifteen days from the date he is so required to
do. The meeting shall, notwithstanding the
provisions of sub-section (3), be presided over

by him or any officer authorised by the Block
Development Officer in that behalf.”

10. After amendment by virtue of Maharashtra Act

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No. III of 2003, Section 7 (1) read as follows :

“7 (1) There shall be held at least six
meetings of the Gram Sabha every financial year
on such date, at such time and place and in

such manner, as may be prescribed and if the
Sarpanch, or in his absence the Upa-Sarpanch
fails, without sufficient cause, to hold any of

such six meetings, he shall be disqualified for
continuing as Sarpanch or, as the case may be,

Upa-Sarpanch or for being chosen as such for
the remainder of the term of office of the

members of the panchayat; and the Secretary of
the panchayat shall also if, prima facie, found
responsible of any lapse in convening such

meeting, be liable to be suspended, and for

being proceeded against, for such other
disciplinary action as provided under the
relevant rules. The decision of the Collector

on the question whether or not there was such
sufficient cause shall be final.

11. The Amendment Act No. III of 2003 to relevant

provision reads as follows :

“Sec. 2 – Amendment of Section 7 of Bom. III of

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1959 – In section 7 of the Bombay Village

Panchayats Act, 1958 (hereinafter referred to
as “the principal Act”), –

(a) in sub-section (1), —

(i) for the words “four meetings” the words
“six meetings” shall be substituted;

(ii) after the existing proviso, the following
provisos shall be inserted, namely :-
“Provided further that, a period of not more

than three months shall be allowed to elapse

between the two meetings of the Gram Sabha :
Provided also that, if the Sarpanch or Upa-

Sarpanch, as the case may be, fails to call any
such meeting within the specified period, the
Secretary shall call the meeting and it shall

be presumed that such meeting has been called
with the concurrence of the Sarpanch or, as the

case may be, Upa-Sarpanch.”

12. Tracing back the changes in the provisos

appended to section 7, it may be gathered that initially

holding of the Gram Sabhas was restricted to “two” for

every financial year and there was no disqualification

provided for. Subsequently, failure to hold any one of

such two Gram Sabhas was held as the lapse which could

cause disqualification of the Sarpanch. Thereafter, the

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law mandated holding of at least three Gram Sabhas out

of four Gram Sabhas in every year. The legal position

thereafter required holding of six (6) Gram Sabhas in a

year, out of which four (4) were mandatory to avoid

disqualification. The further amendment was to the

effect that the Sarpanch or Upa-Sarpanch was required to

hold six Gram Sabhas and non-holding of any of such six

Gram Sabhas, if the present proviso is accepted as it

is, would disqualify the Sarpanch or Upa-Sarpanch, as

the case may be. Obviously, the question is whether it

is mandated that all the six Gram Sabhas are

compulsorily required to be held by the Sarpanch or Upa-

Sarpanch, if he is to continue in the post. The

amendment carried out by Act III of 2003, if is taken as

it is, would obviously mean that failure of the Sarpanch

or Upa-Sarpanch to hold any of the Gram Sabhas, out of

the Six will incur the disqualification. Here comes,

the question of purposive interpretation.

13. One cannot be oblivious of the fact that after

the amendment by Act No. III of 2003, further provisos

have been added in addition to the previous single

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Proviso. One of the added proviso is thus :

“Provided further that a period of not more
than three months shall be allowed to elapse

between the two meetings of the Gram Sabha.”

The proviso reveals that a gap of not more than three

months can be allowed in between the two meetings of the

Gram Sabha. Needless to say, a maximum gap could be of

three months. Mr. Mundhe contends that if such gap is

permissible, then during the period of one financial

year, the Gram Sabha meetings could be only four and not

more. Otherwise, the proviso becomes superfluous.

14. True, the words “four meetings” were

substituted by the words “six meetings”, without

indicating whether such substitution was only in the

first part of the sub-section (1) or also included both

parts thereof. In the first part of sub-section (1),

the number of Gram Sabhas required to be held is stated.

It is followed by the penal consequences due to non-

holding of a particular number of Gram Sabhas.

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15. Mr. Mundhe would submit that the very

requirement to leave a maximum gap of three months in

between the two meetings as contemplated under second

proviso appended to section 7 (1) of the BVP Act is

indicative of intention of the Legislature to restrict

compulsory number of meetings only to the extent of

“four”. He would submit that the amendment pertains to

only the first part of sub-section (1) of section 7 and

has no concern with the subsequent part. I find it

difficult to interpret the provision in such a manner

only because the proviso allows that period of not more

than three months could be kept between the two meetings

of the Gram Sabha. For, there is no prohibition in

section 7 to hold more than six number of Gram Sabhas. A

Sarpanch is at liberty to hold even a dozen of Gram

Sabhas if he so requires in the interest of

administration of the village panchayat. The proviso

contemplates that more than three months shall not be

allowed to be the gap between the two Gram Sabhas. It

means the minimum gap of period can be of any period

less than three months if consecutively such meetings

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are held within short period. For example, a Gram Sabha

meeting if is held on 26th January, then next Gram Sabha

meeting could be held in the first week of February

because less than three months gap of time could be in

between such meetings. Needless to say, the second

proviso to sub-section (1) does not provide key for

interpretation of section 7 (1) in the context of

mandatory nature of the number of Gram Sabhas which are

required to be held. If at all it provides for the key,

then the same is to be interpreted in favour of the

purposive and literal interpretation as per the plain

language of sub-section (1). On plain reading of sub-

section (1) of section 7, it is amply clear that the

first part of the sub-section indicates that there shall

be at least six meetings of the Gram Sabha whereas the

subsequent part shows that if the Sarpanch or Upa-

Sarpanch fails without sufficient cause to hold any of

such six meetings, he shall be disqualified. Needless

to say, the intention of the Legislature is to provide

for minimum number of the Gram Sabhas which compulsorily

are required to be held.

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16. The purpose for providing minimum number of

Gram Sabhas is to ensure that there is maximum

participation of the villagers in the affairs of the

local self-government, namely, the village panchayat.

The village panchayat should not be the machinery at the

hands of only few elected members nor the Sarpanch or

Upa-Sarpanch should have the exclusive control over the

affairs, excluding the opinion of the villagers on

subjects of development, seems to be the intention at

the bottom of such provision. If this aspect is

considered, it is amply clear that the expression “at

least” as used at the beginning of sub-section (1) of

section 7, indicates minimum compulsory number of

meetings to be held. It is amply clear that previously,

the four of such meetings could be regarded as suffice

in order to avoid disqualification. However, now by

virtue of the 2003 amendment, the concession given to

avert the disqualification is taken away and all holding

of the six of such meetings is made mandatory. The

proper interpretation of section 7 (1) is that the

minimum number of Gram Sabha meetings is provided for

without providing any maximum number of the Gram Sabha

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meetings. It therefore follows that unless sufficient

cause is shown by the Sarpanch or Upa-Sarpanch for

holding less than required number of Gram Sabhas, the

disqualification would follow. Had it been that the

expression “at least” would have preceded the penal

clause in the third sentence of sub-section (1), then

perhaps there was some scope to interpret sub-section

(1) differently. ig The purposive and pragmatic

interpretation of Section 7 (1) shows that it is

peremptory in nature.

17. So far as fact situation in the present case is

concerned, it is undisputed that for the year 2005-2006,

only two Gram Sabha meetings were held. In the year

2006-2007, only five Gram Sabha meetings were held.

There was shortfall of four such meetings in the first

year 2005-2006 and there was shortfall of one such Gram

Sabha meeting in the year 2006-2007. The petitioner did

not offer any explanation for omission to convene the

required number of Gram Sabha meetings. His written

statement (Ex-C), in fact, does not contain any

sufficient explanation. He simply denied the contents

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of the relevant paragraph of the application. He

attributed ill-will to the respondents No. 3 to 8. In

fact, had he sufficiently explained the lapses, the

Collector could have been called upon to consider such

explanation. Needless to say, the fact remains that

there was no explanation given by the petitioner in his

written statement about omission to hold the required

number of Gram Sabhas. It is true that he took over as

Sarpanch in the midst of the year 2005-2006. As stated

earlier, there was no prohibition imposed to conduct the

subsequent meetings during the relevant period after his

taking over as Sarpanch. Moreover, he could have

explained that he was not required to conduct certain

meetings prior to his taking over as Sarpanch due to

the reason that he was not in the office or had faced

certain difficulties in conducting the meetings after

his taking over. Nothing of the sort was done by him.

18. Considering the reasons aforestated, I find it

difficult to interfere with the findings of facts

rendered by the learned Collector. The impugned order

does not suffer from arbitrariness or perversity.

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Hence, in the exercise of supervisory jurisdiction under

Article 227, the impugned order need not be interfered

with. Consequently, the petition is dismissed. No

costs.

[ V.R. KINGAONKAR ]

JUDGE

NPJ/wp4660-09

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