IMPORTANT POINT
The Divisional Commissioner cannot delegate the authority to conduct inquiries regarding disqualification under the Maharashtra Zilla Parishad and Panchayat Samitis Act, 1961, as such powers are not provided for in the Act.

JUDGMENT/ORDER

BHARAT P. DESHPANDE, J. - Rule. Rule is made returnable forthwith. Heard the parties for final disposal with consent.

2. The challenge in the present petition is the order passed by the Divisional Commissioner, thereby rejecting the application filed by the petitioner under Sec. 16(1)(i) of the Maharashtra Zilla Parishad and Panchayat Samitis Act, 1961.

3. Mr. Ghate, learned counsel for the petitioner would submit that the petitioner filed an application under Sec. 40 of the said Act, thereby seeking disqualification of the respondent No.3 on the ground that the said respondent No.3 is having direct / indirect interest in the works carried out by the said Panchayat.

4. Mr. Ghate, learned counsel for the petitioner would submit that the provisions of Sec. 40 of the said Act empowers the Divisional Commissioner to decide such application and to pass necessary orders either disqualifying the said Member of the Panchayat or to reject the application. He submits that the said Divisional Commissioner has no authority to direct any subordinate Officer to conduct the fact finding enquiry and that too in absence of the petitioner. He submits that in the present matter, the Divisional Commissioner by an order dtd. 18/11/2021, directed the Chief Executive Officer of Zilla Parishad, Nagpur to conduct the enquiry and submit his report along with his opinion. The Chief Executive Officer of Zilla Parishad by letter dtd. 10/12/2021, directed the Block Development Officer of the Panchayat Samiti, Narkhed to conduct the enquiry and to submit the report along with his opinion. The Block Development Officer was directed to submit his report along with his opinion directly to the Divisional Commissioner. Accordingly, the Block Development Officer of Panchayat Samiti, Narkhed submitted his report dated Nil along with covering letter dtd. 07/01/2022.

5. Mr. Ghate, learned counsel for the petitioner would submit that there is no power under Sec. 40 of the said Act with the Divisional Commissioner to delegate his powers to conduct an enquiry and call for such reports and that too behind the back of the petitioner.

6. The learned counsel for the respondent Nos.1 and 2 would submit that such reports were called only as fact finding report and after submitting such report, the application filed by the petitioner under Sec. 16 of the said Act was decided.

7. The provisions of Sec. 40 of the said Act reads thus:

"40. Disqualification of Councillors during term of office.

(1) Subject to the provisions of sub-sec. (2) of Sec. 62, if any Councillor during the term of his office-

(a) becomes disqualified under sub-sec. (1) [or (4)] of Sec. 16, or

(b) is, for a period of six consecutive months (excluding in the case of the presiding authority the period of leave duly sanctioned) without the permission of the Zilla Parishad, absent from meetings thereof [or is absent from such meeting for a period of twelve consecutive months], the office of such concillor, shall, notwithstanding anything contained in clause (c) [***] of sub-sec. (1) of Sec. 9 becomes vacant

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(2) If any question whether a vacancy has occurred under this Sec. 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 a reasonable opportunity of being heard."

8. The petitioner filed an application under Sec. 16 of the said Act claiming that the respondent No.3 be disqualified since she has directly or indirectly herself or by her partners had share or interest in the work done by the order of the Zilla Parishad or in any contract with, by order on behalf