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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
Writ Petition No.3263 of 2009
1. Shri Shrikant Chahakar.
2. Sau. Omshila Khobragade.
3. Sau. Surekha Kakde.
4. Shri Sudhakar Jambhodi.
5. Shri Pankaj Dhone.
6. Sau. Shakuntala Rahangdale.
7. Shri Prital Lohsarva.
8. Shri Rajendra Raut.
All aged : major,
Occupation : Cultivator,
All R/o Mahadula,
Tah. Kampti,
District : Nagpur. ... Petitioners
Versus
1. The State of Maharashtra,
through Minister,
Rural Development,
Mantralaya,
Mumbai -32.
2. Shri Ratnadeep s/o Lalchand Rangari,
The Ex. Sarpanch,
The Gram Panchayat,
Mahadulla,
Tah. Kampti, Distt. Nagpur.
3. The Secretary,
Gram Panchayat,
Mahadulla,
Tah. Kampti, Distt. Nagpur.
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4. Chief Executive Officer,
Zilla Parishad,
Nagpur.
5. Additional Commissioner,
Nagpur. ... Respondents
Shri A.S. Kilor, Advocate for Petitioners.
Shri N.W. Sambre, Government Pleader for Respondent Nos.1
and 5.
Shri M.I. Dhatrak, Advocate for Respondent No.2.
Shri V.D. Raut, Advocate for Respondent No.4.
CORAM : R.C. Chavan, J.
Reserved on : 20-1-2010
Pronounced on : 08-04-2010
Judgment :
1. Rule. Heard finally by consent of the learned
counsel of the learned counsel for the parties.
2. This petition raises an interesting question about
rights and duties of representatives democratically elected
to local self-governing body.
3. The petitioners as well as respondent No.2 are
elected members of Gram Panchayat, Mahadulla. One
Smt. Nirmala Bonde had been elected as Sarpanch.
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According to the petitioners, since Smt. Nirmala Bonde was
not acting in the interest of Gram Panchayat and people at
large, they moved a motion of no confidence on 5-8-2006,
which was passed by majority. The Collector had unseated
Smt. Nirmala Bonde as a result of no confidence motion
being passed. Thereafter elections for the post of Sarpanch
and Up-Sarpanch were held and the petitioner Nos.2 and 7
claimed to have been elected as Sarpanch and Up-Sarpanch
respectively. Smt. Nirmala Bonde’s appeal before the
Commissioner was, however, pending. It seems that
respondent No.2 Ratnadeep Rangari was also shown as
Ex Sarpanch of Gram Panchayat, though it is not clear from
the petition as to how and when said Ratnadeep Rangari
became Sarpanch.
4. On 26-10-2006, Smt. Nirmala Bonde made a
complaint to the Chief Executive Officer about misconduct
by the petitioners in discharge of their duties, abuse of their
powers and obstruction in the work of Gram Panchayat.
The Chief Executive Officer seems to have issued show
cause notices in pursuance of the complaint received from
Smt. Nirmala Bonde. All the petitioners replied to these
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show cause notices in December, 2006. These replies are
similar worded. The petitioners also wrote on 10-2-2008 to
the Deputy Chief Executive Officer, since it seems that the
Chief Executive Officer had entrusted the enquiry to the
Deputy Chief Executive Officer, reiterating that they had not
misconducted themselves and that the complaint should be
filed.
5.
After a hearing on 24-3-2008, the Chief Executive
Officer submitted a report, which is at Annexure III, holding
that the petitioners were liable for action under
Section 39(1) of the Bombay Village Panchayats Act, 1958.
In pursuance to this report of the Chief Executive Officer,
the Divisional Commissioner, Nagpur Division, Nagpur, by
his order dated 23-4-2009, unseated the petitioners from
the post of members of Gram Panchayat. The petitioners
preferred an appeal before the Government, which was
decided by the Hon’ble Minister of State for Rural
Development, by his order dated 24-7-2009, whereby he
dismissed the said appeal. Aggrieved thereby, the
petitioners are before this Court.
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6. The misconduct, which the petitioners are alleged
to have committed and in respect of which a complaint was
made by Smt. Bonde, appears to be causing obstruction in
the work of Gram Panchayat by opposing all the resolutions
brought in the meetings of Gram Panchayat. The Chief
Executive Officer observed in his enquiry report that the
petitioners had recorded their opposition to the resolutions
pertaining to confirmation of minutes of previous meeting,
approval to income and expenditure of previous month, and
even reading of Government circulars. They also opposed
the resolutions about levy and recovery of taxes, and the
resolutions pertaining to execution of works under National
Rural Employment Scheme, works sanctioned by the 12th
Finance Commission, works like cleaning of drains, lighting,
water supply, etc.
6A. The petitioners do not dispute that they had
opposed these resolutions, but they stated in the replies
filed before the Chief Executive Officer and the Deputy
Chief Executive Officer that the then Sarpanch, who was in
a minority, was not conducting the affairs of Gram
Panchayat by taking all the members in confidence. They
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stated that the Sarpanch did not read the proceedings of
the previous meeting and indulged in making alterations in
the minutes. According to them, the Sarpanch used to
authorize the expenditure, which was not in accordance
with the Gram Panchayat budget. They wondered as to
how they could sanction wrong expenditure or expenditure
involving corruption. They stated that the Government
circulars were not read and, therefore, there was no
alternative but to record their opposition. They claimed
that even they wanted that the taxes should be recovered –
but revised taxes should be demanded and recovered in
accordance with the new rules. They claimed that they
wanted that the income of Gram Panchayat should
increased by levying taxes. According to them, the
Sarpanch used to prepare proceedings in advance and
rather than taking up works, which were demanded by the
citizens, she used to proceed with the works of her
favourites.
6B. The petitioners claimed that they were ready to
approve the works under the National Rural Employment
Scheme and 12th Finance Commission, if the works in which
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both the sides were interested were taken up. They alleged
that an attempt to draw bogus bills by inserting false names
of labourers for the works in the wards was noticed. They
wanted that after the drains were cleaned in their wards,
their signatures should have been obtained. They opposed
purchase of bleaching powder for water supply schemes,
because such purchase was sought to be made without
inviting quotations from various shopkeepers, but by
inviting quotation from only one shopkeeper and without
getting the material tested. They stated that they had
recorded their opposition in order to avoid being party to
any corrupt practice. They have reiterated these claims in
the present petition.
7. I have heard the learned counsel for the
petitioners; the learned Government Pleader for respondent
Nos.1 and 5; the learned counsel for respondent No.2; and
the learned counsel for respondent No.4.
8. The learned counsel for the petitioners submitted
that the Chief Executive Officer had to conduct the enquiry
himself and by delegating the same to the Deputy Chief
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Executive officer, the enquiry and actions based upon it are
vitiated.
9. In Nimba Yadav Bhoi v. President, Standing
Committee, Zilla Parishad, Jalgaon and others, reported at
2002(3) Mh.L.J. 466, on which the learned counsel for the
petitioner relied this Court was considering the provisions of
Section 39(1) of the Bombay Village Panchayats Act and
observed that the provisions were mandatory and hence
the Chief Executive Officer could not have delegated his
power to conduct an enquiry to the Deputy Chief Executive
Officer.
10. The learned Government Pleader submitted that
the Chief Executive Officer could always use his machinery
for collecting material. Therefore, the grievance about
collection of material by the Deputy Chief Executive Officer
on which the Chief Executive Officer only relied ought to be
rejected. According to the petitioners, there was no
application of mind on the part of the Chief Executive
Officer. Report, which is annexed at Annexure-III to the
petition, shows that he had merely recounted the
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allegations against the petitioners, and the fact that the
petitioners were served with show cause notices, and were
called upon to attend a personal hearing. The learned
counsel for the petitioner stated that the Chief Executive
Officer heard the petitioners in person as also the Village
Development Officer and the Extension Officer of Panchayat
Samiti and then simply drew his conclusions without giving
any reasons. He then reported that since the petitioners
had abused their position and had failed to perform their
duties, they were liable for action under Section 39(1) of the
Bombay Village Panchayats Act.
11. The learned counsel for the petitioners relied on a
judgment of this Court in Kum. Nirmala Tikana Giripo v.
State of Maharashtra and others, reported at 2009(1) All MR
91. In that case, the Court was considering the order
passed by the Hon’ble Minister for Food and Civil Supplies in
respect of allotment of a ration shop. This Court referred to
a number of judgments of the Supreme Court in respect of
requirement of a speaking order and the necessity of giving
reasons.
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12. I have carefully considered these contentions.
The learned Government Pleader is right in submitting that
the Chief Executive Officer may have requisite material
collected by his subordinates. But it does not follow that his
report should not reflect any reasons for the conclusions
which he drew. And, in my view, the report is woefully
deficient as far as reasons go. Such a report could not have
been a foundation for drastic action of unseating
democratically elected members of the Panchayat.
13. The learned counsel for the petitioners submitted
that the petitioners had applied before the Divisional
Commissioner, Nagpur Division, Nagpur, for copies of all the
relevant documents and the copy of the complaint of the
deposed Sarpanch. This application is at Annexure IV to the
petition. The petitioners had on 1st July, 2008 sought time
to file reply till they got copies of the documents. According
to the learned counsel for the petitioners, these documents
were not supplied to the petitioner and this fact was
specifically mentioned in the reply filed by the petitioners
before the Divisional Commissioner, which is at Annexure-V.
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14. The learned counsel for the petitioners relied on a
decision in Smt. Savitri Chandrakesh Pal v. State of
Maharashtra and others, reported at 1009(4) All MR 200. In
that case, this Court held that in any quasi judicial
proceeding, non-supply of adverse material to the affected
person, but supply thereof to the authority taking decision
against him on that basis, constitutes violation of natural
justice. Therefore, according to the learned counsel for the
petitioners, in the absence of availability of documents to
the petitioners, the order of the Divisional Commissioner
was vitiated.
15. The learned Government Pleader rightly repelled
these submissions by pointing out that the replies filed by
the petitioners before the Chief Executive Officer
themselves show that the petitioners had responded to the
allegations in the complaint clause-by-clause, which they
could not have done, had they not been in receipt of the
complaint. Therefore, the contention of the petitioners that
they had not received the copy of the complaint and that,
therefore, the orders passed against them were vitiated,
has no force.
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16. This takes me to the question whether the
authorities were justified in holding that the petitioners
were guilty of conduct referred to in Section 39(1) of the Act
entailing their removal. Section 39(1) may be usefully
reproduced as under :
“39. Removal from office :- (1) The Commissioner
may,–
(i)
remove from office any member or any
Sarpanch or Upa-Sarpanch who has been guilty ofmisconduct in the discharge of his duties, or of
any disgraceful conduct, or of neglect of or
incapacity to perform his duty , or is persistently
remiss in the discharge thereof. A Sarpanch orUpa-Sarpanch so removed may at the discretion of
the Commissioner also be removed from thePanchayat; or
(ii) remove from office the member, Sarpanch or
as the case may be, Upa-Sarpanch if not less thantwenty per cent, of the total number of voters in
the village who have paid all dues of the
Panchayat regarding taxes on buildings and lands
and water charges, make a complaint that the
annual accounts and the report of the expenditureincurred by the panchayat on the development
activities are not placed before the Gram Sabha;
and the information thereof is not displayed on the
notice board as required by sub-section (1) or (1-
A) of section 8:
Provided that, no such person shall be
removed from office unless, in case of clause (i),
the Chief Executive Officer or in case of clause (ii),
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13the Chief Executive Officer; under the orders of
the Commissioner, holds an inquiry after givingdue notice to the panchayat and the person
concerned; and the person concerned has beengiven a reasonable opportunity of being heard and
thereafter the Chief Executive Officer or, as the
case may be, the Deputy Chief Executive Officer
concerned through the Chief Executive officer,
submits his report to the Commissioner. Theinquiry officer shall submit his report within a
period of one month:
Provided further that, the Commissioner
shall, after giving the person concerned a
reasonable opportunity of being heard, take adecision on the report submitted by the Chief
Executive Officer or, as the case may be, the
Deputy Chief Executive Officer, within a period of
one month from the date of receipt thereof.”
17. It may be seen that a member has to be guilty of
misconduct in the discharge of his duties, or of any
disgraceful conduct, or of neglect of or incapacity to
perform his duty, or is persistently remiss in the discharge
of duties. ‘Misconduct’ has not been defined in the Act. It is
not alleged that the petitioners had indulged in any
disgraceful conduct. They are not suffering from any
infirmity in discharge of their duties. It may be seen from
the report of the Chief Executive Officer to the
Commissioner that the petitioners are alleged to have
misused their offices and failed to discharge their duties.
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Therefore, it is not necessary to examine whether the
conduct attributed to the petitioners amounts to
misconduct. The impugned orders do not indicate any
misuse of office by the petitioners. The enquiry by this
Court would have to be restricted to the question as to
whether the petitioners’ conduct amounted to neglect in
performing their duties or whether they are persistently
remiss in discharge of their duties.
18. Before going into the facts of the case at hand, it
may be useful to refer to two judgments cited at bar, in
order to examine the facts with reference to the principles
emerging from these judgments, though delivered in the
context of the provisions of the Maharashtra Municipal
Councils, Nagar Panchayats and Industrial Townships Act,
1965
19. In Sureshkumar s/o Kanhaiyalal Jethlia v. State of
Maharashtra and others, reported at 2001(1) Mh.L.J. 901,
this Court held in relation to Section 55-A of the
Maharashtra Municipal Councils, Nagar Panchayats and
Industrial Townships Act, 1965 that an omission to do what
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is required by a person to do may constitute a misconduct
even though a person has not acted wilfully or maliciously.
The failure to do a thing itself may not be a misconduct, but
if the failure is deliberate or motivated, it may amount to
misconduct. It was further observed that what matters is
the seriousness of the acts of misconduct and not mere
persistent or repeated defaults.
20.
In Baburao Vishwvanath Mathpati v. State of
Maharashtra and others, reported at 1996(1) Mh.L.J. 366, a
Division Bench of this Court was considering the word
‘neglect’ appearing in Section 55-A of the Maharashtra
Municipal Councils Act, 1965 in relation to the power of the
Government to remove the President of the Municipal
Council. After considering a number of judgments on
statutory interpretation, the Bench concluded in para 50 as
under :
“50. We may observe that a confusion may
arise by reading the words ‘neglect’ and
‘negligence’. The word ‘neglect’ appears to have
a different connotation than the word ‘negligence’.
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The word ‘neglect’ as earlier said means ‘gross
neglect’, wilful, intentional, culpable or flagrant
disregard of duties. It is mentioned earlier that
the President of Municipal Council can be
dislodged by resorting to the power conferred on
the councillors by moving no-confidence motion
under section 55 of the Act for no grounds or
reasons are required to be stated. The object
behind this is that there should not be any stigma
on the President so removed. We have also
referred to section 313 of the Act where the power
is conferred on the State Government for
supersession of the municipal council by
appointing an administrator. There the word
“misconduct” has been interpreted to mean
“gross misconduct”. Section 55A of the Act no
doubt confers power on the State Government to
remove the President on account of “misconduct,
neglect of duties, incapacity to perform duties and
disgraceful conduct.” This provision sufficiently
entails civil consequences and attaches stigma to
the President and therefore, in order to remove a
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president on these grounds the order must be
founded on strong grounds. Therefore, the word
“neglect” must be understood from the gravity of
the charges and therefore, the word “neglect” as
used in the section means “gross neglect” which
may be synonymous to the word “wilful,
intentional or culpable as the case may be”.
There should be flagrant disregard of duties so as
to call for removal of the President under section
55A of the Act. Therefore, applying the ‘golden
rule’ of construction of statute which has been
recognised by the Apex Court, we have no
hesitation to come to the conclusion that the word
‘neglect’ has a connotation as ‘gross’, ‘wilful’ or
‘intentional’ neglect. Here we are concerned with
either gross neglect or gross statutory neglect on
the part of the petitioner. We, therefore, proceed
to consider the other contention of the learned
counsel in regard to the procedure to be followed
when power under section 55A of the Act is to be
exercised.”
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21. The duties of the members of Gram Panchayat
have also not been defined in the Act. The learned counsel
for the petitioners submitted that if the business of Gram
Panchayat was to be conducted by putting requisite
resolutions to vote at a Gram Panchayat meeting, it would
follow that the members would have a right to vote either
way. He submitted that as of now the members do not
have a duty to vote at all and a member could even abstain
from voting.
22. The learned counsel for the petitioners submitted
that in Lily Thomas (Ms.) Advocate v. Speaker, Lok Sabha
and others, reported at (1993) 4 SCC 234, the Supreme
Court was considering abstention from voting by the
members of a political party in motion of impeachment
against a Judge of the Supreme Court. The Court held in
para 2 of the judgment as under :
“2. … Right to vote means right to exercise the
right in favour of or against the motion or
resolution. Such a right implies right to remain
neutral as well. ‘Neutral’ means, ‘indifferent,
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19unbiased, impartial, not engaged on either side’.
Conceptually it is not aligning with either view.
But what happens where a person entitled to vote
on a resolution participates in discussion but
abstains from voting. It is neither neutrality not
expression of opinion one way or the other. Yet it
is legitimate and valid. In removal of an elected
representative by vote of no confidence neutrality,
partial or
ig complete, is not unknown. Aconstruction as suggested by the petitioner would
lead to uncertainty as, if non-exercise of right by a
member, even though present, amounts to
support, it shall frustrate the entire removal
process based on exercise of the right.”
23. The right to vote either for or against the
resolution can be exercised by the member even in respect
of a formal resolution and it is his free will which would
determine on which side he would vote. Therefore,
according to the learned counsel for the petitioner, if a
resolution is required to be considered at a meeting, it
implies that the members at the meeting would have a right
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to vote either for or against the resolution and, therefore,
without going into the question as to what was the nature
of the resolutions tabled, the petitioners’ right to vote
against such resolutions had to be recognized. He
submitted that this was apart from the fact that the
petitioners had a good justification for voting against the
resolutions, which they had putforth in their replies to the
Chief Executive Officer. He submitted that it would not be
open to the Chief Executive Officer, or for that matter to
any authority, to examine whether the justification offered
by the petitioners was proper or not, since it would be a
matter of perception of the petitioners. If the petitioners
perceive a situation in a particular fashion and vote
accordingly, even if their perception may be wrong, their
right to vote the way they did cannot be questioned.
Therefore, according to him, it is not necessary to go into
the question as to whether the petitioners had opposed the
resolutions for implementation of the National Rural
Employment Scheme or the scheme started under the 12th
Finance Commission. All the same, according to him, since
the petitioners had putforth specific objections to various
resolutions, including those pertaining to recovery of taxes,
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it was incumbent upon the Chief Executive Officer to
examine whether the objections of the petitioners deserved
to be looked into. He submitted that total absence of
reference to the replies filed by the petitioners in the report
of the Chief Executive Officer itself speaks volumes and
indicates total non-application of mind.
24. The learned counsel for respondent No.4 – Chief
Executive Officer submitted that there was no lacuna in the
procedure followed by the Chief Executive Officer, who had
given a hearing to the petitioners. He submitted that it
would be improper to assail the order of respondent No.4 on
the ground that it does not refer to or deal with the replies
filed by the petitioners to show cause notices issued by
respondent No.4. He submitted that on petitioner’s own
admission they had opposed all the resolutions consistently,
principally because the Sarpanch happened to be in
minority and had already suffered a no confidence motion.
He submitted that in the scheme of things, where the
Sarpanch, who had been removed, had a right to have
recourse to remedies available in law, and had done so, it
was incumbent on the part of the petitioners, as responsible
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representatives of the people, to ensure that the work of
local self-governing body did not come to a standstill. He
submitted that the petitioners should have avoided a
stalemate and should have allowed the Gram Panchayat to
function. Therefore, according to him, the behaviour of the
petitioners was irresponsible and, therefore, they were
rightly held to be remiss in their duties as members of the
Panchayat.
25. The learned counsel for respondent No.4 pointed
out that under Section 45 of the Bombay Village Panchayats
Act, the Gram Panchayat has control over subjects
enumerated in the village list appended as Schedule 1 to
the Act. Item 73-A in the said list refers to the provisions of
employment to local needy persons seeking manual work
under any scheme of employment guarantee undertaken or
adopted or transferred to the Panchayat. Therefore,
according to the learned counsel for respondent No.4,
failure of the petitioners to approve works under the
National Rural Employment Scheme resulted in failure of
the Panchayat to deal with a subject in the village list. He
also made available for my perusal the relevant circulars
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issued by the Government in respect of the works to be
conducted by the Gram Panchayat under the schemes
sanctioned by the 12th Finance Commission. The sum and
substance of his arguments is that rather than waiting for a
decision by the Competent Authority on proceedings
initiated by the Sarpanch, who had been voted out, the
petitioners indulged in obstruction simply because they
happened to be in majority. He criticized politicization of
the development works and, therefore, termed the conduct
of the petitioners as remiss.
26. The learned Government Pleader for respondent
Nos.1 and 5 also submitted that if the petitioners had a
grievance about any particular item of work, they could
have raised the same, but simply opposing every resolution
made no sense and, therefore, on proved facts, according
to him, the orders passed by the Divisional Commissioner
as also the Hon’ble Minister of State for Rural Development
cannot be assailed.
27. I have carefully considered these contentions.
While there can be no doubt that democratically elected
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representatives must behave with responsibility and should
ensure that the functioning of the local self-governing
bodies are not stalled for political reasons, instances, when
it became impossible for the Legislature of the State to
function because of political impasse, are far too many in
the sixty years of the existence of this Republic. Therefore,
it would be difficult to uphold the contention that majority of
elected representatives do not have the right to bring to a
halt the working of an elected body, should such body be
headed by a person in whom they have lost confidence.
Moral exhortations cannot take the place of a legal duty and
hence the right of the petitioners to use their vote for
obstructing the work of the Panchayat would have to be
recognised as a right flowing from and being a part of the
democratic process. Therefore, it would be unnecessary to
go into the question as to what were the resolutions which
the petitioners were opposing. Rather it may be
impermissible, not only for this Court, but for any authority,
to examine as to whether any member of the elected body
had a justification for voting in a particular fashion. It would
be for the electorate to question the actions of their elected
representatives as and when the concerned body would go
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to polls again. A political problem would have to be
resolved only by the political means and recourse to legal
procedure might not be permissible.
28. It is not that the administration did not have any
other options open in the matter. If they came to the
conclusion that the work of Gram Panchayat had come to a
standstill, powers under Section 145 of the Bombay Village
Panchayat Act could have been invoked and the Panchayat
could have been dissolved. Rather than looking into the
grievance of the petitioners in the replies, which they had
sent, the Chief Executive Officer seems to have gone by the
complaint of the Sarpanch, who had been unseated, that
the petitioners opposed all the resolutions and seems to
have concluded that the petitioners were not entitled to
oppose the resolutions, which hits at the root of the
democratic process and the rights of democratically elected
representatives. In this view of the matter, it was not
competent for the Divisional Commissioner to accept the
report of the Chief Executive Officer and to remove the
petitioners from the offices of members of Gram Panchayat
or for the Hon’ble Minister of State to uphold such an order
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passed by the Divisional Commissioner.
29. The petition is, therefore, allowed and the order
dated 24-7-2009 passed by Hon’ble Minister of State and
that dated 23-4-2009 passed by the Divisional
Commissioner, Nagpur Division, Nagpur, are quashed and
set aside.
ig JUDGE.
Pdl.
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