Writ Petition No.5672 of 2008

5th December, 2008

Petitioner Counsel: Shri. G. N. CHINCHOLKAR
Respondent Counsel: Shri. S. P. DAUND,Shri. A. R. RATHOD

JUDGMENT

JUDGMENT :- Heard learned counsel for the respective parties.

2. Rule. By consent, Rule made returnable forthwith. The petition is taken up for final disposal at the stage of admission itself.

3. The question posed in this writ petition is whether Rule 3(1) of the Bombay Village Panchayats (Gramsabha Meetings) Rules, 1959 ("Rules of 1959") or Section 36 of the Bombay Village Panchayats Act, 1958 ("Act of 1958") would prevail ?

4. It is not in dispute that the petitioner was elected as Sarpanch of Gram Panchayat Jaldhara, Taluka Kinwat, District Nanded on 27.7.2006. Respondent No.4 filed a Gram Panchayat Dispute No.55 of 2008 under section 7 of the Act of 1958 before learned Additional Collector, Nanded (Exhibit "A" to the petition). Grievance raised by the complainant is that he is elected member of the said Gram panchayat. According to complainant, since 27.7.2006, petitioner is officiating as Sarpanch, many a times, they tried to seek information from the petitioner regarding various developmental projects of the village but in vain, the petitioner did not schedule or hold a single Gramsabha and that the development of the village virtually has become stand still. Paragraph No.4 of the complaint makes a reference to lack of various civic amenities. In paragraph No.5, why action under section 7 of the Act of 1958 is necessary has been explained. This complaint was filed on 2.6.2008.

5. The petitioner, on receipt of the notice from the learned Additional Collector, Nanded, entered appearance and filed reply Exhibit "B" dated 29.7.2008. He denied the contentions raised by complainants in the said application. According to him, from 27.7.2006, about 11 Gramsabhas have been scheduled by the petitioner and there were 21 monthly meetings conducted by the petitioner.

6. Learned Additional Collector, Nanded heard the parties and recorded a finding, vide its order dated 1.9.2008, that an important Gramsabha, which was required to be scheduled in the month of April, 2007 was not held by the petitioner. For financial year 2006-07, learned Additional Collector reached a conclusion, that there were five Gramsabhas. However, for financial year 2007-08, there were five Gramsabhas. Minimum six Gramsabhas are mandatory, in view of section 7 of the Act of 1958. The petitioner did not hold such minimum Gramsabhas and therefore, he recorded a finding against the petitioner under section 7 of the Act of 1958 read with section 36 of the Act. Apart from these Gramsabhas, he had also recorded a finding that monthly meeting in the month of August, 2006 was not held by the petitioner. This judgment and order of the learned Additional Collector dt.1.9.2008 is impugned in this writ petition.

7. To contest the election of Gram Panchayat is a statutory right. The status of the person as Sarpanch of the Village Panchayat is important from two view points. Firstly, the person is assuming the status of Head of the Gram Panchayat concerned. Secondly, such person gets an opportunity for development of the village of which he himself is a resident. Status of the Sarpanch, once acquired, is governed by the provisions of the Act of 1958 and Rules of 1959. This status conferred upon a person, by process of election, also comes with a obligation in view of the provisions of the Act of 1958 and various Rules, framed by the State Government under Rule making power i.e. Section 176 of the Act of 1958. Even though the Sarpanch is at the helm of the affairs of the Gram Panchayat he has to look after the affairs of the Gram Panchayat in view of the provisions of the Act, Rules and with partition of the villagers of the Gram Panchayat concerned. Participation of the villagers is further important from view point that they are beneficiaries of the civic amenities to be provided by the Gram Panchayat headed by the Sarpanch. The source of revenue to the Gram Panchayat is limited to house tax and water tax, if water tap connections are facilitated by Gram Panchayat. Obviously, with this limited revenue, it may not be possible in the given case for the Gram Panchayat to extent civic amenities to the villagers.

The Central as well as State Government, according to their own policies extending and/or making available funds to the Gram Panchayat. Ultimate beneficiary is the residents. Holding of Gram Sabha, in fact is a forum made available by the Act of 1958 to the villagers for the purpose of checks and balances. Rules of 1959 provides for the said purpose. It is important to note that so far meetings of Gram Panchayat are concerned, Bombay Village Panchayat (Meetings) Rules of 1959 are operate. Despite this fact, the legislature in its wisdom has made available the Bombay Village Panchayat (Gram Sabha Meetings) Rules, 1959. These Rules serve the duel purpose. The persons officiating as Sarpanch/Up-Sarpanch and in accordance with the provisions of the Act of 1958 have to schedule and hold Gram Sabhas in view of the Rules of 1959. The second purpose is from the view point of villagers. The villagers can question the office bearers of the Gram Sabha. Forum is made available under the Act of 1958. Thus, the provisions of the Act of 1958 and Rules of 1959 are important and significant. We are concerned with the two provisions in the case on hand i.e. section 36 and Rule 3 of the Rules of 1959. Section 36 is reproduced hereinbelow :-

"36. Time and place of sitting of panchayat and procedure at meetings.- The time and place of sitting, and the procedure at a meeting, of the panchayat shall be such as may be prescribed."

Look to this section makes it clear that time, place of sitting and procedure at a meeting of the panchayat has been prescribed under section 36. Proviso is added by Maharashtra Act No.36 of 1965.

"Provided that, if the Sarpanch, or in his absence the Upa-Sarpanch, fails without sufficient cause, to convene the meetings of the panchayat in any financial year according to the rules prescribed in that behalf, he shall be disqualified for continuing as Sarpanch or, as the case may be, Upa-Sarpanch or for being chosen as such for the remainder of the term of office of the members of the Panchayat. The decision of the Collector on the question whether or not there was sufficient cause shall be final."

Under Section 36, words used are "meeting of panchayat". Second important word used is "a financial year", according to Rules prescribed. In a given circumstance for manifold reasons, third important word used is "without sufficient cause". In a given case Sarpanch or Up-Sarpanch under the threat of this disqualification may explain and substantiate the sufficient cause for not holding Gram Sambhas or meetings provided by specific section or Rules. The financial year is not in dispute, which commences on 1st of April and ends on 31st of March of next year. Sufferance is also laid down under section 36 that such person, after hearing, can be disqualified for continuing as a Sarpanch or Up-Sarpanch, as the case may be, and further punishment contemplated is not to be chosen as the Sarpanch or Up-Sarpanch for the remainder of the term of the members of the Gram Panchayat.

8. Rule, which is required to be considered along with this Section 36 is Rule 3(1) of the Rules of 1959. It reads as under :-

"3.(1) The first meeting of the Gram Sabha in every financial year shall be held within two months from the commencement of that year and the second meeting shall be held in November every year on such date and at such time as may be fixed by the Sarpanch or in his absence by the Upa-Sarpanch."

This Rule 3(1) obligates for first Gram Sabha in every financial year within the period of two months i.e. or/or before 30th May of that financial year i.e. within sixty days from the commencement of the financial year. For second meeting, ultimately, discretion is given to Sarpanch to hold the Gram Sabha in the month of November i.e. within thirty days of November of relevant year. This time span is made compulsory which can be covered from words employed "shall" in Rule 3(1) of Rules of 1959. In other words, every Sarpanch or in his absence, Up-Sarpanch have to adhere to this schedule laid down in this Rule, though it is a subordinate legislation.

9. Learned counsel for the petitioner submits that section 36 needs to be given precedence or is having over-riding effect in relation to Rule 3(1) of the Rules of 1959. In my view, section 36 speaks about the meetings of panchayat. The words which takes in its sweep, Gram Sabha as well as monthly meetings and/or in the given case extra ordinary Gram Sabha, as per Rules. Thus, every meeting of village is taken into consideration while employing the words "meetings of the panchayat". There the disqualification is provided. Number of meetings, procedure of the meetings, purpose of the meetings and calendar for the meetings is the matter of procedure precisely laid down, so far Gram Sabhas are concerned under the Rules of 1959. So far ordinary monthly meetings are concerned, the Bombay Village Panchayats (Meetings) Rules, 1959 are material and therefore, in relation to holding of the meetings procedure part, can be said to be governed by these Rules. Numbers of meetings and consequences of non-holding the meeting is a matter of section 36 of the Act of 1958. Therefore, the section has its own implications and consequences. Rules lay down the procedure for recording a finding as to whether person suffers from section 7 read with section 36 of the Act of 1958. All these provisions have to be read conjointly. There is no question of any preference. The status of the section in the Act in ordinary sense is more important and indisputably Rules under the statutes is the subordinate legislation.

10. Turning to the case on hand, I have heard learned counsel for the parties. Gram Sevak Shri. Khule is present in the Court. He has made available original proceeding books and Gram Sabha books. Learned AGP has made available this record to learned counsel for respective parties for perusal. They have examined these books. Factually, there is no Gram Sabha in April/May, 2007. Now, I am not repeating the importance of first Gram Sabha. We have no concern with Gram Sabha of April/May, 2006 for the reason that Sarpanch in the case on hand was elected on 27.7.2006. Factually, monthly meeting of August, 2006 was not held by the petitioner. Finding recorded by the learned Additional Collector on these two points even on examining the original proceedings cannot be said to be illegal or perverse.

11. In this view of the matter, I see no ground for interfering with the order passed by the learned Additional Collector, Nanded.

12. In the result, Writ Petition stands dismissed without any order as to costs. Rule discharged. Interim relief stands vacated.

13. At this stage, learned counsel for the petitioner seeks suspension of this order for four weeks. Heard, learned counsel for the respondents. This order shall remain suspended till 7.1.2009.

Petition dismissed.