Himmat Tulshiram Athavale vs Additional Commissioner Amravati Division And Ors

Rule. Rule is made returnable forthwith. Heard finally with the consent of learned counsel appearing for rival parties.

By this writ petition, the petitioner, an elected Member of Grampanchayat Javala (Shahapur), has challenged concurrent orders passed by the

respondents No. 1 and 2, whereby he has been disqualified as Member of the said Grampanchayat under Section 14(1)(g) of the Maharashtra Village

Panchayat Act, 1959.

The petitioner was elected as Member of the said Grampanchayat in elections held in the year 2015. He was thereafter elected as Up-Sarpancha

of the said Grampanchayat. On 14/03/2018, the respondent No.3 filed an application before the respondent No.2 â€" Additional Collector, seeking

disqualification of the petitioner as Member and Up-Sarpancha of the Grampanchayat under Section 14(1)(g) of the aforesaid Act. It was alleged that

the petitioner as Up-Sarpancha of the Grampanchayat had been party to resolutions passed on 25/11/2016 and 12/05/2017, whereby daughter-in-law

of the petitioner was appointed as Peon in the Panchayat and then she was confirmed in the said post. It was also alleged that in the meeting dated

12/05/2017, whereby the daughter-in-law of the petitioner was confirmed in the post of Peon, the petitioner had presided over the meeting and he was

the proposer of the resolution whereby her service was made permanent. On this basis, it was contended that the petitioner incurred disqualification

under Section 14(1)(g) of the aforesaid Act. The petitioner refuted the allegations levelled against him.

On 27/07/2018, the respondent No.2 â€" Additional Collector passed an order allowing the application of respondent No.3. It was held that by the

aforesaid actions attributed to the petitioner, he had incurred disqualification under Section 14(1)(g) of the said Act and accordingly, it was declared

that he was disqualified.

Aggrieved by the same, the petitioner filed an appeal before respondent No.1 â€" Additional Collector under Section 16(2) of the said Act. By order

dated 19/01/2019, respondent No.1 â€" Additional Commissioner dismissed the appeal and confirmed the order of disqualification.

Mr. C.A. Babrekear, learned counsel appearing for the petitioner submitted that the impugned orders passed by the respondents No.1 and 2 were

unsustainable, because even if the facts, as stated by respondent No.3 were accepted, the petitioner had not incurred disqualification under Section

14(1)(g) of the said Act. The learned counsel placed reliance on the judgment of the Hon’ble Supreme Court in the case of Gulam Yasin Khan

Vs. Sahebrao Yashwantrao Walaskar and Another AIR 1966 SC 1339 and particularly the judgment of this Court in the case of Dhrupadabai

Laxmanrao Mhaske Vs. Additional Commissioner, Amravati and Others 2015(4) Mh.L.J. 509, to contend that the petitioner could at worst be said to

have been interested in his daughter-in-law and it would not amount to an interest in her employment with the Panchayat and, therefore, the impugned

orders deserved to be set aside.

None appeared on behalf of respondents No.3 and 4. Mr. Alap Palshikar, the learned AGP appeared on behalf of the respondents No.1 and 2. He

defended the impugned orders by stating that since the petitioner was a party to the resolutions, whereby his own daughter-in-law was appointed as

Peon with the Panchayat, disqualification was attracted under Section 14(1)(g) of the said Act. It was submitted that the aforesaid judgments of the

Hon’ble Supreme Court and this Court were not interpreted properly by the learned counsel appearing for the petitioner while advancing his

submissions.

Having heard the learned counsel appearing for rival parties and upon perusal of the material on record, the short question that arises for

consideration is, as to whether the petitioner could be said to have attracted disqualification under Section 14(1)(g) of the aforesaid Act by becoming

party to the resolutions, whereby his own daughter-in-law was appointed initially in a temporary capacity as Peon and lateron she was confirmed in

the said post.

Section 14(1)(g) of the aforesaid Act reads as follows :

“14. Disqualification :- (1) No person shall be a member of a Panchayat continue as such, who -

(a) …

(b) …

(c) …

(d) …

(e) …

(f) …

(g) ...

(g) has directly or indirectly, by himself or his partner, any share or interest in any work done by order of the Panchayat, or in any contract with, by or

on behalf of, or employment with or under, the Panchayat, or.â€​

Since the present case concerns question of employment with the Panchayat, disqualification would be incurred by the petitioner if it is found that

that he had directly or indirectly any interest in the employment with or under the Panchayat. The object of the said provision prescribing ground for

disqualification appears to be to ensure that an elected member of the Panchayat does not use his or her office in the context of employment with or

under the Panchayat. The purpose of the said provision appears to be to ensure that nepotism is not indulged in and there is no conflict of interest

when the question of employment with or under Panchayat arises.

The Constitution Bench judgment of this Court in the case of Gulam Yasin Khan Vs. Sahebrao Yashwantrao Walaskar and Another (supra) was

concerned with a clause of disqualification under C.P. and Berar Municipalities Act, 1922, which provided that no person shall be eligible for election

or selection or nomination as a Member of a Committee, if such person had directly or indirectly any share or interest in any contract with, by or on

behalf of the Committee, while owning such share or interest. Although the aspect of employment was not specifically mentioned in the aforesaid

clause, in the fact situation before the Hon’ble Supreme Court, the same was also considered. In the said case before the Hon’ble Supreme

Court, the question was whether nomination of the appellant therein as Member of the Municipal Committee was liable to be rejected on the ground

that his son was in the employment of the Municipal Committee. The Hon’ble Supreme Court set aside the order of the High Court and held that

the appellant therein did not incur any disqualification only for the reason that his son was in the employment of the Municipal Committee, categorically

holding that the enquiry was not whether the appellant was interested in his son, but the enquiry was whether the appellant was interested in the

employment of his son. It was held that although the distinction between the two enquiries may be subtle, for the purpose of construing the clause it

was very relevant.

In the case of Dhrupadabai Mhaske (supra), this Court came to the conclusion, in the facts of the said case, that applying ratio of the Constitution

Bench judgment of the Hon’ble Supreme Court in the case of Gulam Yasin Khan (supra), mere relationship of the petitioner therein with her son

did not attract disqualification under Section 14(1)(g) of the aforesaid Act.

In the case of Sheela Nandkishor Ingle Vs. Additional Commissioner, Amravati 2019(4) Mh.L.J. 381, this Court upheld disqualification of

Sarpancha of Grampanchayat under Section 14(1)(g) of the said Act, when it was found that she had direct interest in award of work of Panchayat to

her husband, who had directly benefited from the award of such a contract. It was held that there was conflict of interest and duty in the facts of that

case. Reliance was placed on an earlier judgment of this Court in the case of Indumati Laxman Bhakre Vs. State of Maharashtra 2004(3) Mh.L.J. ,6

which concerned similar clause of disqualification under the provisions of the Maharashtra Municipal Councils, Nagar Panchayat and Industrial

Township Act, 1965. Therefore, when a clause of disqualification like Section 14(1)(g) of the aforesaid Act is to be applied, it needs to be enquired,

inter-alia, as to whether there is conflict of interest and duty of the elected representative.

In the facts of the present case, it is found that the petitioner being Up-Sarpancha of the said Grampanchayat was party to the resolution dated

25/11/2016, passed by the Grampanchayat, whereby his own daughter-in-law was appointed on temporary basis as Peon with the Grampancayat.

Thereafter, on 12/05/2017, the petitioner was holding the charge of Up-Sarpancha and he presided over a meeting of the Grampanchayat, wherein

resolution was passed, whereby services of the daughter-in-law of the petitioner were made permanent. The petitioner not only presided over the said

meeting of the Grampanchayat, but he was also the proposer of the resolution on 12/05/2017. In this situation, it needs to be examined whether

disqualification under Section 14(1)(g) of the aforesaid Act was attracted.

A perusal of the above quoted Section 14(1)(g) of the said Act shows that a person, who is Member of the Panchayat would not be able to

continue as such if he has directly or indirectly any interest in employment with or under the Panchayat. This aspect has been sufficiently clarified in

the aforesaid Constitution Bench judgment of the Hon’ble Supreme Court in the case of Gulam Yasin Khan (supra). In the context of

employment, the Hon’ble Supreme Court has specifically held that the necessary enquiry to be made is as to whether the elected representative is

interested in the person seeking employment (in that case the son) or in the employment of the son. It is further held that mere relationship with the

elected representative would not mean that the elected person was either directly or indirectly interested in the employment of such person.

In the present case, admitted facts on record clearly show that the petitioner did have an interest in the employment of his daughter-in-law with the

Panchayat. It was not merely because the petitioner was related to his daughter-in-law or had any sentimental relationship with her that

disqualification was sought under Section 14(1)(g) of the aforesaid Act, but, the disqualification was sought as the petitioner was interested in the

employment of his own daughter-in-law with the Panchayat. He was party to the resolution dated 25/11/2016, when his own daughter-in-law was

appointed on temporary basis as Peon in the Panchayat and subsequently, he presided over the meeting dated 12/5/2017, as Up-Sarpancha of the

Grampanchayat when the service of his own daughter-in-law in the post of Peon was made permanent. Not only this, the petitioner was proposer of

the resolution that was passed on 12/05/2017, whereby service of his own daughter-in-law was made permanent. This clearly shows that he was

interested in the employment of his own daughter-in-law in the Panchayat. It also discloses a clear conflict of interest and duty as an elected

representative and, therefore, disqualification, as specified and spelt out under Section 14(1)(g) of the said Act, was clearly attracted.

A purposive interpretation of the said provision shows that it clearly applies to the facts of the present case, thereby showing that the petitioner

incurred disqualification. In any case, the mischief sought to be addressed by such a provision was precisely such a situation where the elected

representative had interest in employment with or under the Panchayat, due to which he took an interest in ensuring such an employment. The conflict

of interest and duty is clearly made out in the present case and, therefore, it cannot be said that the respondent Nos.1 and 2 committed any error in

concurrently holding that disqualification under Section 14(1) (g) of the aforesaid Act was clearly attracted.

Reliance placed by the learned counsel appearing for the petitioner on the judgment of this Court in the case of Dhrupadabai Mhaske (supra) can

be of no assistance to him because in the facts of that case, this Court found that mere relationship of the petitioner therein with her son would not

attract disqualification under the aforesaid provisions. In the present case, the facts show that the petitioner was not only party to the resolution dated

25/11/2016, whereby his own daughter-in-law was appointed on temporary basis, but, he presided over the meeting on 12/5/2017 and he was also

proposer of the resolution, whereby services of his own daughter-in-law were made permanent. Such a glaring case of conflict of interest and duty

cannot escape the consequence of disqualification by application of Section 14(1)(g) of the aforesaid Act. This Court is of the opinion that the glaring

facts of this case distinguish it from the case of Dhrupadabai Mhaske (supra).

In view of above, this Court finds that there is no merit in the present writ petition and accordingly, it is dismissed.

Rule is discharged.