IMPORTANT POINT
Elected representatives should not be disqualified on flimsy grounds – However, activities which tend to defeat objective of transparency should not be permitted to prevail.

JUDGMENT :

Sanjay Kishan Kaul, J.

The Factual Scenario:

1. The appellant was elected as a member of the Zilla Parishad, Chimthane Block, Taluq Shindkheda, District Dhule, on 08.01.2020, as the candidate of a recognized party. However, he was disqualified from this position by an order dated 08.11.2021 passed by the Divisional Commissioner, Nashik, which came in a petition filed by respondent no.3, who had lost the Zilla Parishad election.

2. Respondent no.3 had filed the aforesaid petition under Sections 40 and 16(1)(i) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 (hereinafter referred to as ‘the said Act’). Respondent no. 3 claimed the appellant’s disqualification on the basis that the appellant had misused his elected post with the object of gaining undue personal financial benefit. This financial benefit is stated to have accrued on account of the role played by the appellant in passing of a resolution dated 26.01.2020, whereby the Aarave Gram Panchayat sanctioned the repairing and tarring of a road from Aarave Phata to Mauje Aarave. Thereafter, the Zilla Parishad, Dhule, of which the appellant was a member, granted administrative sanction to the project on 05.06.2020. This sanction order records that the Zilla Parishad, Dhule had approved the project at a cost of Rs. 15 lakhs, through the exercise of the Zilla Parishad’s powers under Section 125 of the said Act.

3. Pursuant to the sanction, an e-tender was floated by the Aarave Gram Panchayat on 29.06.2020. The appellant’s son applied and was successful in the tender process against two other applicants. Thereafter, the Aarave Gram Panchayat issued a work order to him on 21.07.2020 for repairing the road at Mauje Aarave for a sum of Rs.14,62,871/-.

4. In the aforesaid scenario, respondent no. 3 alleged that the appellant had misused his elected post and was liable to be disqualified. The application was filed under Section 16(1)(i) read with Section 40 of the said Act. For reference, the provisions are reproduced hereunder:

“16. Disqualifications - (1) Subject to the provisions of sub-section (2), a person shall be disqualified for being chosen as, and for being, a Councillor –

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(i) if he has directly or indirectly by himself or by his partner any share or interest in any work done by order of the Zilla Parishad or in any contract with, by or on behalf of, the Zilla Parishad;”

“40. (1) Subject to the provisions of sub-section (2) of section 62, if any Councillor during the term of his office —

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[(2) If any question whether a vacancy has occurred under this section is raised either by the Commissioner suo motu or on an application made to him by any person in that behalf, the Commissioner shall decide the question [as far as possible] within ninety days from the date of receipt of such application; and his decision thereon shall be final. Until the Commissioner decides that the vacancy has occurred, the Councillor shall not be disabled from continuing to be a Councillor:

Provided that, no decision shall be given against any Councillor without giving him reasonable opportunity of being heard.]”

5. The Divisional Commissioner allowed respondent no. 3’s application in terms of the order dated 08.11.2021 in Disqualification Appeal No. 01 of 2021. The Divisional Commissioner noted that as the Aarave Gram Panchayat was in the Chimthane Block, which fell under the purview of Zilla Parishad, Dhule, it was apparent that the appellant would be able to exert influence over the same. It was also observed that there was no evidence of the appellant’s son having been awarded work orders from any other blocks falling under Dhule Zilla Parishad, and thus there was a prima facie inference of misuse, sufficient for disqualifying the appellant under Section 16(1)(i) of the said Act. At this stage, it may also be noticed that the Divisional Commissioner’s order was passed after considering the appellant’s written statement as his argument, as