{"id":156938,"date":"2009-07-03T00:00:00","date_gmt":"2009-07-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mohan-ajabrao-telkhade-vs-the-state-of-maharashtra-on-3-july-2009"},"modified":"2018-10-11T13:30:45","modified_gmt":"2018-10-11T08:00:45","slug":"mohan-ajabrao-telkhade-vs-the-state-of-maharashtra-on-3-july-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mohan-ajabrao-telkhade-vs-the-state-of-maharashtra-on-3-july-2009","title":{"rendered":"Mohan Ajabrao Telkhade vs The State Of Maharashtra on 3 July, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Mohan Ajabrao Telkhade vs The State Of Maharashtra on 3 July, 2009<\/div>\n
Bench: C. L. Pangarkar<\/div>\n
                                       1\n\n\n\n\n                                                                             \n      IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR \n                        BENCH NAGPUR.\n\n\n\n\n                                                     \n                   WRIT   PETITION   NO.   4313    OF     2008\n\n\n\n\n                                                    \n    Mohan Ajabrao Telkhade,\n\n\n\n\n                                          \n    aged Major, Occu. Agriculturist,\n    R\/o Rama, Tq. Bhatkuli,\n    Distt. Amravati. \n                              ig                        PETITIONER.\n                            \n                                  VERSUS\n\n\n    1. The State of Maharashtra,\n    Department of Rural Development\n           \n\n\n    And Water Conservation,\n        \n\n\n\n    Mantralaya, Mumbai.\n\n    2. The Hon'ble Minister\n    Department of Rural Development\n\n\n\n\n\n    And Water Resources,\n    Mantralaya, Mumbai.\n\n    3. The Commissioner,\n    Amravati Division Amravati.\n\n\n\n\n\n    4. Additional Collector,\n    Amravati District Amravati.\n\n    5. Chief Executive Officer,\n    Zilla Parishad, Amravati.\n\n\n\n\n                                                     ::: Downloaded on - 09\/06\/2013 14:44:28 :::\n                                         2\n\n    6. Sunil Digambar Junghare,\n    aged 34 yrs., Sarpanch,\n\n\n\n\n                                                                               \n    Gram Panchayat Rama.\n\n\n\n\n                                                       \n    7. Vaijayanta Dadarao Gawai,\n    aged 45 yrs. Upasarpanch.\n\n    8. Pramia Baburao Damle,\n\n\n\n\n                                                      \n    aged 50 yrs.  Member.\n\n    9. Pravin Madhukarrao Ghongade,\n    aged 32 yrs., Member.  \n\n\n\n\n                                           \n    Respondents 6 to 9 residents of \n    Rama Tq. Bhatukli District\n    Amravati.                                             RESPONDENTS.\n                             \n    Shri.   A.   S. Kilor,  Counsel for the petitioner.\n    Shri.   Vaishnav , Counsel  for the respondents.   \n           \n\n\n                       CORAM:   C.  L.  PANGARKAR  J. \n        \n\n\n\n                          Date:      3rd   JULY   2009.\n\n    ORAL JUDGMENT:  \n\n\n\n\n\n              By this Writ Petition the petitioner challenges the order \n\n    passed by the  Hon'ble Minister whereby  he set aside the order of \n\n\n\n\n\n    Commissioner   under   Village   Panchayat   Act   dissolving   the   Gram \n\n    Panchayat, and directing by-elections for vacant posts to be held.\n\n\n\n\n                                                       ::: Downloaded on - 09\/06\/2013 14:44:28 :::\n                                              3\n\n    2.          Facts<\/pre>\n
 giving rise to the petition are as follows:\n<\/p>\n
                There is a Gram Panchayat at village Rama which consists <\/p>\n
    of   9   members.     Petitioner   submits   that   out   of   the     nine,   four <\/p>\n
    members were disqualified on the ground that they had deliberately <\/p>\n
    remained absent during the meeting of the Gram Panchayat.   One <\/p>\n
    of   the   members   of   the   Gram   Panchayat   was   disqualified   under <\/p>\n
    Section 14 of the Bombay Village Panchayat Act and as such total <\/p>\n
    five members  out of nine were disqualified from holding the office <\/p>\n
    of   the   Member   of   the   Gram   Panchayat.     Accordingly   the   Chief <\/p>\n
    Executive Officer of the Zilla Parishad had submitted a report to the <\/p>\n
    Additional Collector on 20.12.2006 informing him that out of nine, <\/p>\n
    five   posts   have   fallen   vacant.     Proposal   was   submitted   for   the <\/p>\n
    dissolution of the said Panchayat.   Additional Collector thereafter <\/p>\n
    submitted a proposal to the Commissioner i. e. respondent No. 3 to <\/p>\n
    dissolve the Panchayat.  Thereafter respondent No.3 Commissioner <\/p>\n
    passed an order on 08.01.2007 dissolving the said Gram Panchayat.\n<\/p>\n
    Respondents 5 to 8 felt aggrieved by the said order of dissolution <\/p>\n
    and they preferred a revision application under Section 154 before <\/p>\n
    the Commissioner i. e. respondent No.3 for quashing and setting <\/p>\n
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\n                                            4<\/span><\/p>\n
    aside   the   said   order.     Respondents   5   to   8   also   preferred   an <\/p>\n
    application for stay along with said application under Section 154 of <\/p>\n
    the Village Panchayat Act.   Although the said application was not <\/p>\n
    maintainable   the   petitioner   submits   that   respondent   No.3 <\/p>\n
    Commissioner   registered   the   said   application   and   revision <\/p>\n
    application and granted stay on 23.01.2007 to the order passed by <\/p>\n
    him on 08.01.2007.   The said stay order continued for a period of <\/p>\n
    almost one year.   On 06.12.2007 the said application preferred   by <\/p>\n
    the respondents 5 to  8 came to be dismissed on the ground that it <\/p>\n
    was not maintainable.  That order was passed on 01.01.1008.  After <\/p>\n
    the said revision was dismissed by the Commissioner respondents 5 <\/p>\n
    to 8 preferred a revision before the respondent No.2, the Minister <\/p>\n
    for Rural Development.  Respondent No.2 granted stay to the order <\/p>\n
    of   dissolution.     Thereafter  the  petitioner   had   challenged  the  said <\/p>\n
    order of stay by filing Writ Petition No. 1412 of 2008.  The said Writ <\/p>\n
    Petition was listed before this Court on 17.06.2008.  All respondents <\/p>\n
    except respondent No.7 were shown to be served.   The petitioner <\/p>\n
    submits that respondents 1  to 5 including the Minister were aware <\/p>\n
    of the stay granted by the High Court.   Inspite of such stay having <\/p>\n
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\n                                             5<\/span><\/p>\n
    been   granted,   it   is   alleged   that   respondent   No.2   passed   an <\/p>\n
    impugned   order  dated   10.06.2008   setting   aside the  dissolution   of <\/p>\n
    the   Gram   Panchayat   and   directing   by-elections   to   be   held.     The <\/p>\n
    petitioner   mainly   contends   that   order   passed   by   the   Minister   is <\/p>\n
    illegal because the Minister could not have entertained the revision <\/p>\n
    against the order of the Commissioner since the Minister’s powers <\/p>\n
    have been delegated to the Commissioner.\n<\/p>\n
    3.<\/p>\n
               I have heard the learned counsel for the petitioner as well <\/p>\n
    as respondents.\n<\/p>\n
    4.         Order is challenged mainly on the ground that once the <\/p>\n
    State Government delegates the powers to the Commissioner under <\/p>\n
    Section 145 of the Village Panchayat Act the State could not have <\/p>\n
    entertained the revision under Section 145 of the Village Panchayat <\/p>\n
    Act.\n<\/p>\n
               Section 145 of the Village Panchayat Act reads as follows:\n<\/p>\n
                            145.  Dissolution of Panchayat: (1)
\n                 If, in the opinion of the State Government a
\n                 Panchayat exceeds or abuses its power or is
\n                 incompetent to perform, or makes persistent <\/p>\n
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\n                                  6<\/span><\/p>\n
     default   in   the   performance   of,   the   duties
\n     imposed   on   it   or   functions   entrusted   to     it <\/p>\n
     under   sub   section   (1)   of   Section   45   or   any
\n     other provision of this Act or by or under any <\/p>\n
     other law for the time being in force [or has
\n     failed to  levy taxes  referred  to in clauses  (i)
\n     and (1-a) of sub section (1) of Section 124] [or
\n     has failed to levy taxes referred to in clauses <\/p>\n
     (viii) and (xii) of sub section (1) of Section 124
\n     when   it   was   compulsory   to   levy   such   taxes
\n     under sub section (1) of Section 124] or fails
\n     to   obey   an   order   made   by   the   [Panchayat
\n     Samiti]   under   Section   128   of   persistently <\/p>\n
     disobeys   any   of   the   orders   of   the   [Standing
\n     Committee] or Commissioner under Section <\/p>\n
     142   [or   wilfully   disregards   any   instructions
\n     given     by   the   Zilla   Parishad   or   Panchayat
\n     Samiti   under   Section   152   or   by   any <\/p>\n
     competent   authority   arising   out   of   audit   of
\n     accounts under this Act or inspection of the
\n     office   and   work   of   the   Panchayat   or
\n     instructions given or directions issued by the <\/p>\n
     State Government under Section 153-A], the
\n     State   Government   may,   after   consultation <\/p>\n
     with the [Zilla Parishad] and after giving the
\n     Panchayat   an   opportunity   of   tendering   an
\n     explanation, by order in the Official Gazette.\n<\/p>\n
                 i.    dissolve such Panchayat 3***\n\n                 ii     4***\n\n     [1-a] If more than half the total   number of \n\n\n\n\n\n<\/pre>\n
     seats in a Panchayat have become vacant, the
\n     State   Government   may,   by   order   in   the
\n     Official Gazette, dissolve such Panchayat.]”\n<\/p>\n
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\n                                              7<\/span><\/p>\n
    It is obvious from Section 145(1-a) that the power to dissolve is to be <\/p>\n
    exercised   by   the   State   Government.     State   Government   has <\/p>\n
    admittedly   delegated   its   powers   to   the   Commissioner   as   can   be <\/p>\n
    seen from the Circular issued by the Government of Maharashtra <\/p>\n
    on 01.06.1983.  Shri Kilor learned counsel for the petitioner submits <\/p>\n
    that once the power is delegated by the State to the Commissioner <\/p>\n
    any order that is passed by the Commissioner would be deemed to <\/p>\n
    be passed by the State Government, Commissoner having   stepped <\/p>\n
    into   the   shoes   of   the   Government.       Shri   Kilor   learned   counsel <\/p>\n
    further submits that if that order of the Commissioner is treated as <\/p>\n
    an order of Government, Government cannot revise its own order at <\/p>\n
    all and exercise powers under Section 154 of the Village Panchayat <\/p>\n
    Act.  He relied on a decision of the Supreme Court in M\/s OCL India  <\/p>\n
    Ltd.   Vs.   State of Orissa and Others   A. I. R. 2003 Supreme Court  <\/p>\n
    2148,  Supreme Court has observed:\n<\/p>\n
                 “13.        Thus,   it   is   clear   that   the   power
\n                 conferred   on   the   Assistant   Commissioner
\n                 was   under   clause   (a)   of   sub   section   (4)   of <\/p>\n
                 Section 23 of the Act read with Rule 80 of the
\n                 Rules.     The   Commissioner   has   revisional
\n                 power to call  for the records and revise the
\n                 orders  not only of the Sales Tax Officer but
\n                 also   of   the   Assistant   Commissioner.\n<\/p><\/blockquote>\n
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\n                                   8<\/span><\/p>\n
     Additional   Commissioner   and   Special
\n     Additional   Commissioner,   the   power   that <\/p>\n
     was delegated to the Assistant Commissioner
\n     was   confined   to   the   orders   passed   by   the <\/p>\n
     Sales   Tax   Officers.     In   the   result   the
\n     Commissioner   retained   his   power   to   revise
\n     the   orders   passed   by   the   Assistant
\n     Commissioner,   Additional   Commissioner <\/p>\n
     and   Special   Additional   Commissioner,.\n<\/p>\n
     However,  in  regard  to   the orders   passed  by
\n     the Sales Tax Officer, after the delegation, the
\n     Assistant   Commissioner   was   competent   to
\n     revise and in fact, he did exercise the power <\/p>\n
     to   revise   the   order   of   the   Sales   Tax   Officer,
\n     after   issuing   a   show   cause   notice   dated <\/p>\n
     December 13, 1995.   If that be so, the power
\n     of   the   Commissioner   (the   delegator)   under
\n     the   aforequoted   provisions   has   been <\/p>\n
     exhausted   by   the   Assistant   Commissioner
\n     and   the   Commissioner   cannot,   in   law,
\n     exercise the delegated power over again.\n<\/p>\n
     14.         It   is   no   doubt   true   that   the
\n     Commissioner   is   not   denuded   of   the <\/p>\n
     statutory  power of revision  after  delegation,
\n     but that, in view of the said notification, only
\n     means   that   he   can   resume   that   power   or
\n     cancel the delegation of revisional power to <\/p>\n
     the   Assistant   Commissioner.       That,   by   no
\n     stretch   of   imagination,   can  be  construed   to
\n     mean   that   once   the   orders   have   been
\n     examined under the revisional power by the
\n     Assistant Commissioner (the delegatee)   the <\/p>\n
     same   orders   can   again   be   subjected   to   the
\n     revisional jurisdiction by the Commissioner.”\n<\/p>\n
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\n                                               9<\/span><\/p>\n
    In   the   reported   case   also   the   power   to   hear   the   revision   against <\/p>\n
    order of Sales Tax  Officer was delegated  by the Commissioner to <\/p>\n
    Assistant Commissioner and therefore the Commissioner could not <\/p>\n
    exercise   the   powers   of   revision   himself     against   the   order   of   the <\/p>\n
    Sales Tax Officer.   In the instant case what has been delegated is <\/p>\n
    power   to   dissolve   the   gram   panchayat   under   Section   145.     That <\/p>\n
    power   cannot   now   be   exercised   by   the   State,   it   will   have   to   be <\/p>\n
    exercised   by   the   Commissioner   alone.     The   order   passed   by   the <\/p>\n
    Commissioner   is   deemed   to   be   passed   by   the   State.     Shri   Kilor <\/p>\n
    learned counsel for the petitioner submits that if the order that is <\/p>\n
    passed by the Commissioner is deemed to be order of State, then <\/p>\n
    the State cannot revise its own order.  The submission appears to be <\/p>\n
    sound.     If   the   State   entertains   revision   against   the   order   of <\/p>\n
    Commissioner it would amount to sitting in appeal against its own <\/p>\n
    order.   Such a power cannot now be exercised by the   State under <\/p>\n
    Section   154   or   155.     Hon’ble   Minister   therefore   could   not   have <\/p>\n
    entertained   the   revision   against   the   order   of   the   Commissioner.\n<\/p>\n
    Order of the Minister therefore is patently illegal.\n<\/p>\n
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\n                                            10<\/span><\/p>\n
    5.         Shri   Vaishnava   learned   counsel   for   the   respondents <\/p>\n
    submits   that   order   passed   by   the   Commissioner   is   illegal   and <\/p>\n
    therefore even if it is set aside by the Minister having no jurisdiction <\/p>\n
    still this Court need not interfere into same in its writ jurisdiction.\n<\/p>\n
    He   relied   on   a   decision   of   this   Court   in  Madhukar   Baburao  <\/p>\n
    Deshmukh     Vs.     Jalgaon   Jullha   Maratha   Vidya   Prasarak   Coop.\n<\/p>\n
    Samaj Ltd., Jalgaon and Others   2002(3) Maharashtra Law Journal  <\/p>\n
    201:\n<\/p>\n
                             “The   provisions   of   law   contained
\n                in Section 154 therefore, apparently requires <\/p>\n
                compliance   of   basic   principles   of   natural
\n                justice before any order of lower authority is
\n                being interfered with.   Here is a case where
\n                the order in favour of the respondent No.2 <\/p>\n
                was   set   aside   without   hearing   him.     The
\n                Apex Court in  Maharaja Chintamani Saran  <\/p>\n
                Nath Shahdeo  Vs.  State of Bihar and others
\n                reported   reported     in   (1999)8   SCC   16,   has
\n                held that where setting aside an order on the
\n                ground of lack of jurisdiction would result in <\/p>\n
                the revival of an illegal order, then refusal to
\n                interfere   even   with   the   order   lacking
\n                jurisdiction would be justified.  Interference
\n                in the impugned order in the case in hand,
\n                even   if   the   impugned   order   is   without <\/p>\n
                jurisdiction,   would   virtually   amount   to
\n                revival of illegal order dated 31.12.1999.   In
\n                the   facts   and   circumstances   of   the   case,
\n                therefore,   it   is   preferable   to   refrain   from
\n                interfering in the impugned order.”\n<\/p><\/blockquote>\n
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\n                                            11<\/span><\/p>\n
    6.         Chief   Executive   Officer   had   sent   a   proposal   to   the <\/p>\n
    Commissioner on 20.12.2006 to dissolve the Gram Panchayat.   He <\/p>\n
    had informed that out of nine members four had remained absent <\/p>\n
    continuously  for a period of six months unauthorisingly and have <\/p>\n
    been disqualified, while  one more member  has been disqualified <\/p>\n
    under  Section 114 of the Village Panchayat Act and therefore 5 seats <\/p>\n
    have fallen vacant.  Commissioner exercising power  under  Section <\/p>\n
    145(1-A)  dissolve  the  Gram Panchayat by order dated  08.01.2007.\n<\/p>\n
    This order was challenged before the Commissioner himself by an <\/p>\n
    application purporting to be one under Section 154 of the Village <\/p>\n
    Panchayat  Act.  The said application which can be either treated as <\/p>\n
    revision   or   appeal   was   filed   (decided)   by   the   Commissioner     by <\/p>\n
    order dated 01.01.2008 apparently without hearing the respondent <\/p>\n
    herein   and   holding   that   appeal   was   not   maintainable.     This   is <\/p>\n
    challenged   before   the   Hon’ble   Minister   .     The   Hon’ble   Minister <\/p>\n
    apparently   sets   aside   both   the   order   dated   08.01.2007   and <\/p>\n
    01.01.2008   under Section 155.  Shri Vaishnava learned counsel for <\/p>\n
    the respondent submits that this order of Minister be not set aside <\/p>\n
    as     order   was   passed   by   the   Commissioner   without   hearing <\/p>\n
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\n                                             12<\/span><\/p>\n
    respondent and that order is therefore illegal.  He submits that if the <\/p>\n
    order of Minister is set aside that would revive the illegal order of <\/p>\n
    the Commissioner and that is not permissible in writ jurisdiction.\n<\/p>\n
    He  had relied on the decision of Madhukar Deshmukh’s case.  The <\/p>\n
    Court may not interfere  when the result  is of revival of order which <\/p>\n
    is illegal.   The   question is whether the order of the Commissioner <\/p>\n
    passed on 01.01.2008 could be said to be illegal.   The only ground <\/p>\n
    for contending that said order is illegal is breach of the principles of <\/p>\n
    natural justice i. e. hearing.  The order seems to be passed without <\/p>\n
    hearing.  The order however to my mind cannot be said to be illegal.\n<\/p>\n
    The revision\/appeal was filed in fact before the same authority who <\/p>\n
    had passed the order under challenge.  It is a simple proposition of <\/p>\n
    law that one cannot be a judge in his own cause.     Knowing fully <\/p>\n
    well that order under challenge is passed by very same authority, <\/p>\n
    the   revision\/appeal   was   filed   before   the   same   authority.     To   my <\/p>\n
    mind an order becomes illegal when the authority entitled to hear <\/p>\n
    and   decide   the   appeal   or   revision   does   not   hear   the   party   and <\/p>\n
    decides it.  This will be in breach of principles of natural justice but <\/p>\n
    when an authority before whom no appeal or revision could lie files <\/p>\n
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\n                                             13<\/span><\/p>\n
    that appeal so that it had  entertained  does not commit any breach <\/p>\n
    of   principles   of   natural   justice.     Particularly   in   this   case   the <\/p>\n
    appeal\/revision   was   presented   to   the   very   same   authority   whose <\/p>\n
    order was under challenge.   In this particular case therefore even if <\/p>\n
    the respondent was not heard it could not be said that the order <\/p>\n
    passed by the Commissioner was illegal.  Commissioner in any case <\/p>\n
    could not have entertained the appeal or revision and stay his own <\/p>\n
    order.  Such an act of entertaining  appeal and granting stay initially <\/p>\n
    by   the   Commissioner   itself   was   illegal   and   he   corrected   his   own <\/p>\n
    order   by   vacating   the   stay   order   and   holding   that   he   could   not <\/p>\n
    entertain the appeal\/revision.   In fact initial order of entertaining <\/p>\n
    the appeal and grant of stay as said earlier was illegal and  non-est.\n<\/p>\n
    The order of the Hon’ble Minister is non est as he did not have the <\/p>\n
    power   to   entertain   the   revision   once   power   to   dissolve   was <\/p>\n
    exercised by the Commissioner for and on his behalf.   In fact that <\/p>\n
    order being an illegal order needs to be set aside.\n<\/p>\n
    7.          Order   of   the   Commissioner   in   not   entertaining   the <\/p>\n
    revision   and   vacating   the   stay   was   perfectly   justified   in   the <\/p>\n
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\n                                             14<\/span><\/p>\n
    circumstances.     The   Minister   should   not   have   entertained   the <\/p>\n
    appeal\/revision and set aside the order dated 08.01.2007 when that <\/p>\n
    order   was   not   under   challenge   before   him.     The   order   under <\/p>\n
    challenge   was   dated     01.01.2008   as   can   be   seen   from   the   prayer <\/p>\n
    clause in the revision application before the Minister.  The Hon’ble <\/p>\n
    Minister in fact has set aside the order dated 08.01.2007 though not <\/p>\n
    under   challenge.     This   is   another   reason   why   the   order   of   the <\/p>\n
    Hon’ble Minister can be said to be illegal.  In fact if the order of the <\/p>\n
    Hon’ble Minister which  is illegal is not set aside and  that    illegal <\/p>\n
    order would still continue to   hold a field which this Court cannot <\/p>\n
    allow.   In the circumstances the Writ Petition must succeed.   The <\/p>\n
    order passed by the Hon’ble Minister is set aside.   Writ Petition is <\/p>\n
    allowed.  No order as to costs.\n<\/p>\n
                                                                JUDGE<\/p>\n
    svk<\/p>\n
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\n            15<\/span><\/p>\n
                ::: Downloaded on – 09\/06\/2013 14:44:29 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Mohan Ajabrao Telkhade vs The State Of Maharashtra on 3 July, 2009 Bench: C. L. Pangarkar 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH NAGPUR. WRIT PETITION NO. 4313 OF 2008 Mohan Ajabrao Telkhade, aged Major, Occu. Agriculturist, R\/o Rama, Tq. Bhatkuli, Distt. Amravati. ig PETITIONER. VERSUS 1. The […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-156938","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nMohan Ajabrao Telkhade vs The State Of Maharashtra on 3 July, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mohan-ajabrao-telkhade-vs-the-state-of-maharashtra-on-3-july-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mohan Ajabrao Telkhade vs The State Of Maharashtra on 3 July, 2009 - 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