Mandatory notice to the panchayat in an inquiry under Section 39(1) of the Maharashtra Village Panchayats Act is essential, and failure to comply renders the inquiry report and subsequent orders invalid.

JUDGMENT:

1. Heard.

2. Rule. Rule made returnable forthwith.

With consent of parties, heard finally.

3. By the present writ petition, the petitioner is challenging the order dated 29.03.2023, passed by the Hon’ble Minister in an appeal filed under Section 39(3) of the Maharashtra Village Panchayats Act, (hereinafter referred to as “the Act”) confirming the order dated 17.01.2023, passed by the Additional Divisional Commissioner, Aurangabad thereby removing the petitioner as Sarpanch under section 39(1) of the Act. The Commissioner has held the petitioner/Sarpanch guilty of misconduct in discharge of his duties. The Commissioner has held that the petitioner has issued succession certificates beyond the authority vested in him.

Brief Facts

4. The petitioner was elected as member of the Grampanchayat Khirdi from the General category in the election held on 15.01.2021. Thereafter, the petitioner was elected as Sarpanch on 08.02.2021. On 28.04.2022, a dispute was raised by respondent no.8 – Sunil Tukaram Ghusale, before respondent no.3 – the Additional Divisional Commissioner, wherein it was alleged that the petitioner has issued succession certificate without any authority and, as such, prayed that a inquiry be conducted under section 39(1) of the Act and the petitioner be removed from the post of Sarpanch. Respondent no.3, thereafter, directed respondent no.4 - the Chief Executive Officer, to inquire into the matter and submit a report. The Chief Executive Officer issued show cause notice under section 39 of the Act for conducting inquiry to the following 3 persons, as under:-

[I] Dnyneshwar Shridhar Matkar [Petitioner]

[II] Sunil Tukaram Ghusale [Complainant]

[III] Gramsevak Grampanchayat-Khirdi, Taluka – Khultabad

5. Respondent no.4 issued notice to the petitioner, to the complainant, and the gramsevak grampanchayat – Khirdi, Taluka – Khultabad. The petitioner filed his response and submitted that he has not committed any misconduct while discharging his duties as Sarpanch and the complainant is politically motivated. On completion of inquiry a report was submitted by the Chief Executive Officer to the Commissioner and on the basis of the report the Commissioner removed the petitioner for misconduct under section 39(1) of the Act. The petitioner, thereafter, file an appeal before the Hon’ble Minister under Section 39(3) of the Act. The appeal was also dismissed.

6. The petitioner has filed the present petition challenging the orders passed by the Hon’ble Minister so also by the Commissioner. Submission of Petitioner:-

7. Mr. V. D. Salunke holding for Mr. R. V. Gore, learned counsel for the petitioner submits that the order passed by the Commissioner so also by the Hon’ble Minister is erroneous in law for the following reasons.

8. That the learned Commissioner has not complied with the material provision of Section 39 of the Act and that the notice was not issued to the panchayat. He submits that the proviso to section 39(1) of the Act provides that the inquiry has to be conducted by the Chief Executive Officer only after giving due notice to the panchayat and the person concerned. In the instant case, the notice was only given to the petitioner but no notice was served to the panchayat. He submits that the notice to the gramsevak is not a notice on the panchayat. The learned counsel has taken me through the sections 3(34), 3(20), 3(26), 60, 27(1), 10, 45, 55, 62 and 63A of the Act to contend that the panchayat is distinct from the ‘Gramsevak’ and notice to ‘Gramsevak’ is not a notice to panchayat. The learned counsel has further taken me though section 145 and 146 of the Act. The learned counsel submits after taken me through the various provisions of the Act, that notice to the gramsevak is not the notice to the panchayat.

9. The learned counsel for the petitioner submits that there is distinction between an inquiry conducted under sections 16 and 39 of the Act . In an inquiry under section 16 the notice is given to the individual member c