JUDGMENT :

1. Rule. Rule made returnable forthwith. Heard finally with consent of learned counsel for the parties.

2. The Petitioner challenges the order dated 02.08.2021 passed by the Respondent No.2-Additional Commissioner in exercise of powers conferred under Section 39(1) of the Maharashtra Village Panchayats Act, 1959 (hereinafter referred to as “the said Act”) and the order dated 5.10.2021 passed by the Respondent No.1 – Minister rejecting the appeal preferred by the Petitioner under Section 39(3) of the said Act.

3. The Petitioner is a duly elected Sarpanch of the Gram Panchayat Tekadi (Coal-Mine), Parseoni, Nagpur. She has been elected from Scheduled Caste category by direct election process for a term of five years, which is due to expire in the year 2022. In view of complaint received from some of the members, Respondent No.3 – C.E.O. directed the Respondent No.4 - B.D.O. to conduct an enquiry. Pursuant to the preliminary report submitted by the B.D.O., Respondent No.3 allegedly conducted an enquiry under Section 39(1) of the said Act with permission of Respondent No.2. The Respondent No.2 has removed the Petitioner from the office of Sarpanch acting upon the report submitted by Respondent No.3. The Respondent No.1 – Hon’ble Minister dismissed the appeal filed by the Petitioner under Section 39(3) of the said Act. Hence, the Petition.

4. Shri S.P. Bhandarkar, learned counsel for the Petitioner submits that Respondent No.3 had not conducted enquiry under Section 39(1) of the said Act. He submits that the C.E.O. has not applied his mind independently, but has based the findings on the preliminary enquiry report submitted by the Respondent No.4 -B.D.O. He submits that the impugned order is passed in contravention of the mandatory provision of Section 39(1) of the said Act. Reliance is placed on the decisions of this Court in Shalik s/o Bolan Dahiwale Vs. State of Maharashtra & Ors in Writ Petition No.7158/2017 and in Nimba Yadav Bhoi Vs. President, Standing Committee, Zilla Parishad, Jalgaon and Others reported in (2002) 3 Mh.L.J. 466. He therefore contends that the impugned order passed by the Respondent No.2 – Commissioner is patently illegal, and hence, liable to be quashed and set aside.

5. Percontra, Shri A.A. Naik, learned counsel for the Respondent No.6 submits that the Respondent No.3 -C.E.O. has conducted an independent enquiry as contemplated under Section 39(1) of the said Act. The C.E.O. has considered all the documents and records while arriving at a finding that the Petitioner has committed illegalities, which have been more particularly specified in the report. He submits that the mere reference to the preliminary enquiry report would not vitiate the enquiry conducted by the Respondent No.3 – C.E.O. Reliance is placed on the decision of this Court in Damayanti w/o Omprakash Tapadiya Vs. Ashok s/o Dadarao Thakare and Others reported in 2020(1) Mh.L.J.531.

6. I have perused the records and considered the submissions advanced by learned counsel for the respective parties.

7. The controversy in the present Petition centres around the compliance of Section 39(1) of the said Act, which reads thus:

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)xxxxxx

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 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 r