Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1715 OF 2023
VIRENDRASING …APPELLANT
Versus
THE ADDITIONAL COMMISSIONER
& ORS. …RESPONDENTS
J U D G M E N T
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
Signature Not Verified
Digitally signed by
Charanjeet Kaur
Date: 2023.04.17
16:16:46 IST
Reason:
the Zilla Parishad election.
CA No.1715 of 2023 Page 1 of 17
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/-.
CA No.1715 of 2023 Page 2 of 17
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 -
...... ...... ......
(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
—
xxxx xxxx xxxx xxxx
[(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:
CA No.1715 of 2023 Page 3 of 17
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
the matter had already been adjourned on multiple occasions at
the appellant’s request.
6. The appellant challenged his disqualification by way of a
writ petition before the High Court, vide Writ Petition No.
12526 of 2021. His submissions before the High Court can be
crystalized as under:
CA No.1715 of 2023 Page 4 of 17
(a) The Act would not be applicable to the case as the
road repair work was being carried out at the
behest of the Gram Panchayat, which is regulated
under a different Act, i.e. the Maharashtra Village
Panchayats Act, 1959 (hereinafter referred to as the
‘ VP Act ’);
(b) Even assuming the applicability of the said Act, the
language of Section 16(1)(i) indicates that
disqualification can occur only if the work was
undertaken by the Zilla Parishad itself. However, in
the present factual scenario the Zilla Parishad
played only a supervisory role;
(c) The appellant had no ‘interest’ in his son’s
financial affairs as the latter had an independent
business and the two of them did not even reside
together;
(d) The order of disqualification violated the principles
of natural justice as the appellant was not given an
opportunity of being heard by the Divisional
Commissioner.
7. The aforesaid pleas were however rejected by the High
Court as per the impugned judgment dated 17.11.2021. The
conclusion was based on the following findings:
CA No.1715 of 2023 Page 5 of 17
A. Section (16)(1)(i) of the said Act was broadly
worded. It not only mandated that the councillor
should not have any interest in any work of the
Zilla Parishad, but such councillor should also not
have an interest in the work done by the order of
the Zilla Parishad. In the present factual scenario,
the work was ‘ordered’ by the Zilla Parishad,
which would be sufficient to attract the provision.
The Zilla Parishad had directed the Gram
Panchayat to undertake the road repair work vide
order dated 09.06.2020 under the supervision of the
Deputy Engineer, Zilla Parishad. The Executing
Engineer, Zilla Parishad’s communication dated
28.10.2021 also stated that the road was being
developed pursuant to the order of the Zilla
Parishad, which was also the agency that had
disbursed the funds.
B. The Divisional Commissioner had reached a
plausible conclusion as to whether the appellant
and his son resided together. The appellant’s only
evidence was a ration card which showed that his
son lived with his grandmother. This however was
not conclusive proof about the son’s financial
independence. In any case, it was opined that these
CA No.1715 of 2023 Page 6 of 17
facts could not be really within the purview of the
court’s writ jurisdiction.
C. An opportunity of hearing was not required to be
given to the appellant as all the relevant facts were
before the Divisional Commissioner already. This
legal conclusion was reached on the basis of the
judgment of this Court in Dharampal Satyapal
Ltd. v. Deputy Commissioner of Central Excise,
1
Gauhati & Ors. , where it was opined that a
hearing was not required where the same would be
a mere formality and not have any bearing on the
final conclusion of the authority. More than that,
the Divisional Commissioner had adjourned the
matter on multiple occasions at the request of the
appellant. On 08.10.2021, when the appellant again
requested for further time on account of advocate’s
illness, although the appellant himself was
physically present, the Divisional Commissioner
had fairly come to the conclusion that the appellant
had been granted multiple opportunities and thus
his written statement should be treated as his
submissions. The Divisional Commissioner had
also rejected the appellant’s separate application
for an oral hearing vide detailed order dated
1
(2015) 8 SCC 519.
CA No.1715 of 2023 Page 7 of 17
01.11.2021, and this had not been challenged by
the appellant.
The Appellant’s Case Before Us :
8. The appellant’s primary plea was that his son was
allocated work by Gram Panchayat Aarave and not by Zilla
Parishad Dhule. The allocation was done through an e-tendering
process published on the web portal of the Maharashtra
Government. The payment for the work was also made to the
appellant’s son by the Gram Panchayat, although it was
formally sanctioned by the Zilla Parishad. The work order dated
20.07.2020 was also under the seal of the Gram Panchayat, in
view of the authority endowed with them under Article 243(G)
th
read with Entry 13 of the 11 Schedule of the Constitution.
9. The appellant submitted that the Zilla Parishad had
merely given administrative and technical sanction for the said
allotment under Sections 100, 100(2) and 125 of the said Act.
The Zilla Parishad is stated not to have directly paid for the
work undertaken by the appellant’s son. In this regard, reliance
was placed on the counter affidavit of the Zilla Parishad, who is
respondent no.3 before us.
10. Second, it was pleaded that the appellant had no personal
interest in his son’s business and that they did not even reside
CA No.1715 of 2023 Page 8 of 17
together. Reliance was placed on Gulam Yasin Khan v. Shri
2
Sahebrao Yashwantrao Walaskar & Ors. , where this Court
observed that the mere relationship of an electoral candidate
with an employee of the Municipal Committee would not
disqualify the candidate from standing in the election.
11. Third, it was contended that the Divisional Commissioner
had not followed the principles of natural justice while
disqualifying the appellant. It was urged that an elected
representative cannot be removed from his post in a casual
manner and without holding an enquiry into the alleged
misconduct, as held by this Court in Ravi Yashwant Bhoir v.
3
District Collector, Raigad & Ors. . In the proceedings before
the Divisional Commissioner, the appellant had requested for
accommodation on the day as his lawyer was unwell, but the
said request was unreasonably rejected.
2
AIR 1966 SC 1339.
3
(2012) 4 SCC 407.
CA No.1715 of 2023 Page 9 of 17
Respondent No.3’s Resistance to the Claim of the Appellant :
12. Learned counsel for respondent no.3 sought to lay
emphasis on the objective of Section 16 of the said Act, i.e., to
bring probity into the working of the Zilla Parishads. With this
background, it was urged that the concerned sub-section (i) of
Section 16(1) of the said Act was worded with a wide ambit so
as to encapsulate three categories, i.e., work done (a) by order
of the Zilla Parishad; (b) in any contract with the Zilla Parishad;
or (c) by or on behalf of the Zilla Parishad.
In the present case, the work was carried out by the order
of the Zilla Parishad, and the payment was made through the
Zilla Parishad as well. Thus it was urged that the facts fell
squarely within the ambit of Section 16(1)(i) of the said Act and
disqualification was apparent.
13. In the given factual scenario, it was also urged that the
appellant was elected in January 2020, whereas his son was
registered as a contractor with the Zilla Parishad, Dhule on
20.02.2020. The contract awarded to the appellant’s son was
really in the nature of a proxy benefit. Here, we may note that
there is also some controversy surrounding the translated
version of the Gram Panchayat’s resolution dated 26.01.2020.
The version adduced by the appellant inter alia states that “So
also, when the said work will be sanction and when the said
CA No.1715 of 2023 Page 10 of 17
work will be completed, the Gram Panchayat is ready and
willing to bear the expenses incurred for supervision and repairs
of the said work, such resolution was unanimously resolved.”
[sic]. Respondent no. 3’s case was that this portion was not
present in the original resolution. In any case, the fact remained
that in either eventuality the funds flowed to the Gram
Panchayat through Zilla Parishad, which in turn received them
from the State Government. This was also the stand taken by
the Zilla Parishad in its counter affidavit.
14. Respondent no. 3 relied on the judgment in Zelia M.
4
Xavier Fernandes E. Gonsalves v. Joana Rodrigues & Ors. .
5
Here, this Court had distinguished Gulam Yasin’s case on the
premise that it did not pertain to the disqualification of a
member of the local self-government on the ground of direct or
indirect pecuniary benefit. It was contended that Zelia M.
6
Xavier’s case was of greater relevance as it dealt with Section
10 of the Goa Panchayat Raj Act, 1994, which was analogous
to Section 16(1)(i) of the said Act.
4
(2012) 3 SCC 188.
5
(supra).
6
(supra)
CA No.1715 of 2023 Page 11 of 17
Our View :
15. We must begin with the objective of the said Act; which
is to introduce local self-governance and administration at the
grassroots, and to entrust Zilla Parishads with the execution of
works and developmental schemes of the State Government. It
is in this conspectus that the said Act provides for the
disqualification of elected representatives. Having been
conferred with major financial responsibilities, the statute
maintains a system of checks and balances to ensure
transparency in local contracts and to obviate the possibility of
elected representatives exercising undue influence. It is no
doubt true that elected representatives should not be
disqualified on flimsy grounds. However, we are equally bound
by the statutory mandate, whereby activities which tend to
defeat the objective of transparency should not be permitted to
prevail.
16. The legislature in its wisdom has defined the grounds for
disqualification in expansive terms under Section 16(1)(i) of the
said Act. Thus, the use of the terminology – ‘directly or
indirectly’, ‘by himself or by his partner’, ‘any share or interest
in any work done’, ‘by order of Zilla Parishad or in any contract
with’, and ‘by or on behalf of the Zilla Parishad’. All
eventualities where the councillor can be said to have any
financial connection with the work of the Zilla Parishad were
CA No.1715 of 2023 Page 12 of 17
sought to be included, with the object of discouraging the
practice of financial patronage that is inherently beneficial to
the elected representatives.
17. If we now turn to the applicable precedent, this Court in
Zelia M. Xavier’s case had distinguished the applicability of
7
Gulam Yasin’s case. It was opined that in Gulam Yasin , this
Court had held that to invite disqualification, any interest or
share had to be in the contract itself, and a mere relationship
between the electoral candidate and an employee of the
Municipal Committee would not suffice to invite
disqualification.
18. In our opinion, both of these cases stand on a different
footing as compared to the factual scenario before us. Gulam
8
Yasin was concerned with the interpretation of the Section
15(1) of the Central Provinces and Berar Municipalities Act,
1922, which disqualified a candidate from standing for election
if he had ‘an interest’ in the Municipal Committee. Moreover,
another factor that weighed with the Court was that the
appellant in that case was subject to Mohammedan law, and
thus he and his son could not be said to be members of an
undivided family having common ‘financial interests’. On the
7
(supra).
8
(supra)
CA No.1715 of 2023 Page 13 of 17
9
other hand, in Zelia M. Xavier , this Court was examining a
situation where the appellant was a Panchayat member who was
disqualified as her husband had entered into a contract with the
said Panchayat for the collection of market fee. The Court's
decision ultimately took note of the fact that the money affairs
of the husband and appellant-wife were regulated by the
Portuguese Civil Code, 1860, whereby the property of the
spouses got merged upon marriage. Thus, it was held that the
appellant-wife had a financial interest in the Panchayat’s
contract with her husband.
19. Despite these factual differences, we find that the
common principle that can be culled out from the
aforementioned cases is that this Court had cautioned against
interpreting disqualification provisions in an overly restrictive
or narrow manner. In both cases, this Court had noted that the
salutary purpose of such provisions was to ensure the purity of
administration in Municipal Committees.
20. On turning to the factual scenario of the present case, it
may be noticed that this was not even a situation where the
appellant’s son was carrying on any existing contractual work.
It was only soon after the election of the appellant that his son
was registered as a contractor. He had no other contracts in that
9
(supra)
CA No.1715 of 2023 Page 14 of 17
area or otherwise. The only contract awarded to him was the
one where the funds flowed to the Gram Panchayat from the
Zilla Parishad of which the appellant was a member. The
appellant had attempted to justify this situation by claiming that
his son was registered as a contractor soon after the appellant’s
election as he had just completed his studies. In our view, this
fact raises further suspicions about the appellant’s interest in his
son’s business.
21. The Zilla Parishad, Dhule issued a work order to the
Aarave Gram Panchayat for the repair of roads on 09.06.2020.
This document, and the Zilla Parishad’s counter affidavit,
reveal that the funds flowed from the State Government to the
Zilla Parishad, and in turn to the Gram Panchayat. This is
notwithstanding the translation of the resolution dated
26.01.2020 adduced by the appellant, whereby an impression is
sought to be given as if the Gram Panchayat was willing to
spend its own funds on the project. In any case, this translation
has been seriously disputed by respondent no. 3. In our view,
the issuance of the work order dated 09.06.2020 by the Zilla
Parishad itself shows the Zilla Parishad’s supervisory and
sanctioning role in the contract, which falls within the wide
ambit of Section 16(1)(i) of the said Act.
CA No.1715 of 2023 Page 15 of 17
22. We believe that probity in such financial transactions
should be the rule rather than the exception. The appellant had a
greater responsibility as a father to make sure that his son does
not enter into a contract that is sanctioned by the Zilla Parishad
itself. We may note the finding of fact by courts below that
nothing had been placed on record to show even a separation of
residence between the son and the father, other than a ration
card purporting to show that the son was living with his
grandmother. It was rightly observed that this was neither here
nor there, more so when the son had just completed his
education.
23. We may also note that sufficient opportunities were made
available to the appellant to present his arguments. There
cannot be a birthright to seek adjournments, especially when
the Divisional Commissioner was mandated to decide the issue
of appellant’s disqualification within a period of ninety days
from respondent no. 3’s application, as per Section 40(2) of the
said Act. The Divisional Commissioner thus rightly treated the
appellant’s written submissions as his defence.
Conclusion :
24. In the aforesaid conspectus, we are thus of the view that
the appeal must fail and is accordingly dismissed. The
CA No.1715 of 2023 Page 16 of 17
consequential disqualification would take effect from the date
of the judgment.
25. The appeal is accordingly dismissed leaving the parties to
bear their own costs.
...................……………………J.
[Sanjay Kishan Kaul]
...................……………………J.
[Ahsanuddin Amanullah]
...... .............……………………J.
[Aravind Kumar]
New Delhi.
April 17, 2023.
CA No.1715 of 2023 Page 17 of 17