Bombay High Court High Court

Shri Shrikant Chahakar vs The State Of Maharashtra on 8 April, 2010

Bombay High Court
Shri Shrikant Chahakar vs The State Of Maharashtra on 8 April, 2010
Bench: R. C. Chavan
                                   1

    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 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 thereof. A Sarpanch or

Upa-Sarpanch so removed may at the discretion of
the Commissioner also be removed from the

Panchayat; or

(ii) remove from office the member, Sarpanch or
as the case may be, Upa-Sarpanch if not less than

twenty 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 expenditure

incurred 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),
the Deputy Chief Executive officer as directed by

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the Chief Executive Officer; under the orders of
the Commissioner, holds an inquiry after giving

due notice to the panchayat and the person
concerned; and the person concerned has been

given 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. The

inquiry 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 a

decision 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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unbiased, 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. A

construction 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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