VIRENDRASING versus THE ADDITIONAL COMMISSIONER AND ORS. on 17 April 2023

[2023] 3 S.C.R. 790

SUPREME COURT REPORTS

[2023] 3 S.C.R.

VIRENDRASING

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v.

THE ADDITIONAL COMMISSIONER AND ORS.

(Civil Appeal No. 1715 of 2023)

BAPRIL 17, 2023

[SANJAY KISHAN KAUL, AHSANUDDIN AMANULLAHAND ARAVIND KUMAR, JJ.]

Maharashtra Zilla Parishads and Panchayat Samitis Act,1961 : ss. 16(1)(i), 40 – Disqualification – Appellant elected as aCmember of the Zilla Parishad – Petition by respondent no.3 u/ss. 40and 16(1)(i) claiming appellant’s disqualification on the groundthat the appellant had misused his elected post for gaining unduepersonal financial benefit whereby in E-tender floated for theproject, work order was issued in favour of the appellant’s son –DApplication allowed by Divisional Commissioner – Writ petitionthereagainst dismissed by the High Court – On appeal, held:Salutory purpose of disqualification provisions was to ensure thepurity of administration in Municipal Committee – On facts, it wasnot even a situation where the appellant’s son was carrying on anyexisting contractual work – It was only soon after the election ofEthe appellant that his son was registered as a contractor – Onlycontract awarded to him was the one where the funds flowed to theGram Panchayat from the Zilla Parishad of which the appellantwas a member – Moreover, issuance of the work order by the ZillaParishad itself shows the Zilla Parishad’s supervisory andFsanctioning role in the contract, which falls within the wide ambitof s. 16(1)(i) – Probity in such financial transactions should be therule rather than the exception – Appellant had a greaterresponsibility as a father to make sure that his son does not enterinto a contract that is sanctioned by the Zilla Parishad itself – Orderpassed by the High Court is upheld – Consequential disqualificationGwould take effect from the date of the judgment.

Dismissing the appeal, the Court

HELD: 1.1 The objective of the Maharashtra Zilla Parishadsand Panchayat Samitis Act, 1961 is to introduce local self-Hgovernance and administration at the grassroots, and to entrust

Zilla Parishads with the execution of works and developmentalschemes of the State Government. It is in this conspectus thatthe said Act provides for the disqualification of electedrepresentatives. Having been conferred with major financialresponsibilities, the statute maintains a system of checks andbalances to ensure transparency in local contracts and to obviatethe possibility of elected representatives exercising undueinfluence. It is no doubt true that elected representatives shouldnot be disqualified on flimsy grounds. However, the statutorymandate is equally binding, whereby activities which tend todefeat the objective of transparency should not be permitted toprevail. [Para 15][799-C-D]

1.2 The legislature in its wisdom has defined the groundsfor disqualification in expansive terms under Section 16(1)(i) ofthe Act. Thus, the use of the terminology - ‘directly or indirectly’,‘by himself or by his partner’, ‘any share or interest in any workdone’, ‘by order of Zilla Parishad or in any contract with’, and ‘byor on behalf of the Zilla Parishad’. All eventualities where thecouncillor can be said to have any financial connection with thework of the Zilla Parishad were sought to be included, with theobject of discouraging the practice of financial patronage that isinherently beneficial to the elected representatives. [Para 16][799-E-F]

1.3. This was not even a situation where the appellant’sson was carrying on any existing contractual work. It was onlysoon after the election of the appellant that his son was registeredas a contractor. He had no other contracts in that area orotherwise. The only contract awarded to him was the one wherethe funds flowed to the Gram Panchayat from the Zilla Parishadof which the appellant was a member. The appellant had attemptedto justify this situation by claiming that his son was registered asa contractor soon after the appellant’s election as he had justcompleted his studies. This fact raises further suspicions aboutthe appellant’s interest in his son’s business. [Para 20][800-E-G]

1.4. The Zilla Parishad, Dhule issued a work order to theAarave Gram Panchayat for the repair of roads on 09.06.2020.This document, and the Zilla Parishad’s counter affidavit, reveal A

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Athat the funds flowed from the State Government to the ZillaParishad, and in turn to the Gram Panchayat. This isnotwithstanding the translation of the resolution dated 26.01.2020adduced by the appellant, whereby an impression is sought to begiven as if the Gram Panchayat was willing to spend its own fundson the project. In any case, this translation has been seriouslyBdisputed by respondent no. 3. The issuance of the work orderdated 09.06.2020 by the Zilla Parishad itself shows the ZillaParishad’s supervisory and sanctioning role in the contract, whichfalls within the wide ambit of Section 16(1)(i) of the said Act. [Para21][800-G; 801-A-B]C

1.5. Probity in such financial transactions should be the rulerather than the exception. The appellant had a greaterresponsibility as a father to make sure that his son does not enterinto a contract that is sanctioned by the Zilla Parishad itself. Thefinding of fact by courts below that nothing had been placed onDrecord to show even a separation of residence between the sonand the father, other than a ration card purporting to show thatthe son was living with his grandmother. This was neither herenor there, more so when the son had just completed his education.[Para 22][801-C-D]

E1.6. That sufficient opportunities were made available tothe appellant to present his arguments. There cannot be abirthright to seek adjournments, especially when the DivisionalCommissioner was mandated to decide the issue of appellant’sdisqualification within a period of ninety days from respondentno.3’s application, as per Section 40(2) of the said Act. TheFDivisional Commissioner thus rightly treated the appellant’swritten submissions as his defence. [Para 23][801-E]

1.7. The consequential disqualification would take effectfrom the date of the judgment. [Para 24][801-F-G]

GDharampal Satyapal Ltd. v. Deputy Commissioner ofCentral Excise, Gauhati & Ors. (2015) 8 SCC 519 :[2015] 6 SCR 437; Gulam Yasin Khan v. Shri SahebraoYashwantrao Walaskar & Ors. AIR 1966 SC 1339 :[1966] SCR 339; Ravi Yashwant Bhoir v. District H

Collector, Raigad & Ors. (2012) 4 SCC 407 : [2012] 3SCR 775; Zelia M. Xavier Fernandes E. Gonsalves v.Joana Rodrigues & Ors. (2012) 3 SCC 188 : [2012] 3SCR 258 – referred to.

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Case Law Reference

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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1715of 2023.

From the Judgment and Order dated 17.11.2021 of the High Courtof Judicature at Bombay at Aurangabad in WP No. 12526 of 2021.

Sudhanshu S. Choudhari, Ms. Amarjitsingh Girase, Mahesh P.Shinde, Ms. Rucha A. Pande, M. Veeraragavan, Advs. for the Appellant.

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Vinay Navare, Sr. Adv., Siddharth Dharmadhikari, AadityaAniruddha Pande, Bharat Bagla, Sourav Singh, Prashant Shrikant Kenjale,Amol B. Karande, Narender Rao Thaneer, Ms. Vaishnavi Gupta, VeshalTyagi, Sravan Kumar Karanam, Advs. for the Respondents.

The Judgment of the Court was delivered by SANJAY KISHAN KAUL, J.

The Factual Scenario:

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

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2. Respondent no.3 had filed the aforesaid petition under Sections40 and 16(1)(i) of the Maharashtra Zilla Parishads and Panchayat SamitisAct, 1961 (hereinafter referred to as ‘the said Act’). Respondent no. 3claimed the appellant’s disqualification on the basis that the appellanthad misused his elected post with the object of gaining undue personal H

Afinancial benefit. This financial benefit is stated to have accrued on accountof the role played by the appellant in passing of a resolution dated26.01.2020, whereby the Aarave Gram Panchayat sanctioned therepairing and tarring of a road from Aarave Phata to Mauje Aarave.Thereafter, the Zilla Parishad, Dhule, of which the appellant was amember, granted administrative sanction to the project on 05.06.2020.BThis sanction order records that the Zilla Parishad, Dhule had approvedthe project at a cost of Rs. 15 lakhs, through the exercise of the ZillaParishad’s powers under Section 125 of the said Act.

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

4. In the aforesaid scenario, respondent no. 3 alleged that theappellant had misused his elected post and was liable to be disqualified.DThe application was filed under Section 16(1)(i) read with Section 40 ofthe 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, andfor being, a Councillor - E

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

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“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 thissection is raised either by the Commissioner suo motu or on anapplication made to him by any person in that behalf, theCommissioner shall decide the question [as far as possible] withinninety days from the date of receipt of such application; and hisdecision thereon shall be final. Until the Commissioner decides G

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that the vacancy has occurred, the Councillor shall not be disabledfrom continuing to be a Councillor:

Provided that, no decision shall be given against any Councillorwithout giving him reasonable opportunity of being heard.]”

5. The Divisional Commissioner allowed respondent no. 3’sapplication in terms of the order dated 08.11.2021 in DisqualificationAppeal No. 01 of 2021. The Divisional Commissioner noted that as theAarave Gram Panchayat was in the Chimthane Block, which fell underthe purview of Zilla Parishad, Dhule, it was apparent that the appellantwould be able to exert influence over the same. It was also observedthat there was no evidence of the appellant’s son having been awardedwork orders from any other blocks falling under Dhule Zilla Parishad,and thus there was a prima facie inference of misuse, sufficient fordisqualifying the appellant under Section 16(1)(i) of the said Act. At thisstage, it may also be noticed that the Divisional Commissioner’s orderwas passed after considering the appellant’s written statement as hisargument, as the matter had already been adjourned on multiple occasionsat the appellant’s request.

6. The appellant challenged his disqualification by way of a writpetition before the High Court, vide Writ Petition No. 12526 of 2021.His submissions before the High Court can be crystalized as under:

(a) The Act would not be applicable to the case as the roadrepair work was being carried out at the behest of the GramPanchayat, which is regulated under a different Act, i.e.the Maharashtra Village Panchayats Act, 1959 (hereinafterreferred to as the ‘VP Act’); (b)Even assuming the applicability of the said Act, the languageof Section 16(1)(i) indicates that disqualification can occuronly if the work was undertaken by the Zilla Parishad itself.However, in the present factual scenario the Zilla Parishadplayed only a supervisory role;

(c) The appellant had no ‘interest’ in his son’s financial affairsas the latter had an independent business and the two ofthem did not even reside together; (d)The order of disqualification violated the principles of naturaljustice as the appellant was not given an opportunity of beingheard by the Divisional Commissioner.

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A7. The aforesaid pleas were however rejected by the High Courtas per the impugned judgment dated 17.11.2021. The conclusion wasbased on the following findings:

A.Section (16)(1)(i) of the said Act was broadly worded. Itnot only mandated that the councillor should not have anyBinterest in any work of the Zilla Parishad, but such councillorshould also not have an interest in the work done by theorder of the Zilla Parishad. In the present factual scenario,the work was ‘ordered’ by the Zilla Parishad, which wouldbe sufficient to attract the provision. The Zilla Parishadhad directed the Gram Panchayat to undertake the roadCrepair work vide order dated 09.06.2020 under thesupervision of the Deputy Engineer, Zilla Parishad. TheExecuting Engineer, Zilla Parishad’s communication dated28.10.2021 also stated that the road was being developedpursuant to the order of the Zilla Parishad, which was alsoDthe agency that had disbursed the funds.

B.The Divisional Commissioner had reached a plausibleconclusion as to whether the appellant and his son residedtogether. The appellant’s only evidence was a ration cardwhich showed that his son lived with his grandmother. Thishowever was not conclusive proof about the son’s financialindependence. In any case, it was opined that these factscould not be really within the purview of the court’s writjurisdiction.

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C.An opportunity of hearing was not required to be given tothe appellant as all the relevant facts were before theDivisional Commissioner already. This legal conclusion wasreached on the basis of the judgment of this Court inDharampal Satyapal Ltd. v. Deputy Commissioner ofCentral Excise, Gauhati & Ors.[1], where it was opinedthat a hearing was not required where the same would be amere formality and not have any bearing on the finalconclusion of the authority. More than that, the DivisionalCommissioner had adjourned the matter on multipleoccasions at the request of the appellant. On 08.10.2021,when the appellant again requested for further time on F

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H1 (2015) 8 SCC 519.

account of advocate’s illness, although the appellant himselfwas physically present, the Divisional Commissioner hadfairly come to the conclusion that the appellant had beengranted multiple opportunities and thus his written statementshould be treated as his submissions. The DivisionalCommissioner had also rejected the appellant’s separateapplication for an oral hearing vide detailed order dated01.11.2021, and this had not been challenged by theappellant.

The Appellant’s Case Before Us:

8. The appellant’s primary plea was that his son was allocatedwork by Gram Panchayat Aarave and not by Zilla Parishad Dhule. Theallocation was done through an e-tendering process published on theweb portal of the Maharashtra Government. The payment for the workwas also made to the appellant’s son by the Gram Panchayat, althoughit was formally sanctioned by the Zilla Parishad. The work order dated20.07.2020 was also under the seal of the Gram Panchayat, in view ofthe authority endowed with them under Article 243(G) read with Entry13 of the 11[th] Schedule of the Constitution.

9. The appellant submitted that the Zilla Parishad had merely givenadministrative and technical sanction for the said allotment under Sections100, 100(2) and 125 of the said Act. The Zilla Parishad is stated not tohave directly paid for the work undertaken by the appellant’s son. In thisregard, 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 personalinterest in his son’s business and that they did not even reside together.Reliance was placed on Gulam Yasin Khan v. Shri SahebraoYashwantrao Walaskar & Ors.[2], where this Court observed that themere relationship of an electoral candidate with an employee of theMunicipal Committee would not disqualify the candidate from standingin the election.

11. Third, it was contended that the Divisional Commissioner hadnot followed the principles of natural justice while disqualifying theappellant. It was urged that an elected representative cannot be removedfrom his post in a casual manner and without holding an enquiry into the 2 AIR 1966 SC 1339.

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Aalleged misconduct, as held by this Court in Ravi Yashwant Bhoir v.District Collector, Raigad & Ors.[3]. In the proceedings before theDivisional Commissioner, the appellant had requested for accommodationon the day as his lawyer was unwell, but the said request wasunreasonably rejected.

BRespondent No.3’s Resistance to the Claim of the Appellant:

12. Learned counsel for respondent no.3 sought to lay emphasison the objective of Section 16 of the said Act, i.e., to bring probity intothe working of the Zilla Parishads. With this background, it was urgedthat the concerned sub-section (i) of Section 16(1) of the said Act wasCworded 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 theZilla Parishad; or (c) by or on behalf of the Zilla Parishad.

In the present case, the work was carried out by the order of theZilla Parishad, and the payment was made through the Zilla Parishad asDwell. Thus it was urged that the facts fell squarely within the ambit ofSection 16(1)(i) of the said Act and disqualification was apparent.

13. In the given factual scenario, it was also urged that the appellantwas elected in January 2020, whereas his son was registered as acontractor with the Zilla Parishad, Dhule on 20.02.2020. The contractEawarded 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 thetranslated 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 work will becompleted, the Gram Panchayat is ready and willing to bear the expensesFincurred for supervision and repairs of the said work, such resolutionwas unanimously resolved.” [sic]. Respondent no. 3’s case was thatthis portion was not present in the original resolution. In any case, thefact remained that in either eventuality the funds flowed to the GramPanchayat through Zilla Parishad, which in turn received them from theGState Government. This was also the stand taken by the Zilla Parishadin its counter affidavit.

14. Respondent no. 3 relied on the judgment in Zelia M. XavierFernandes E. Gonsalves v. Joana Rodrigues & Ors.[4]. Here, this 3 (2012) 4 SCC 407.H4 (2012) 3 SCC 188.

Court had distinguished Gulam Yasin’s case[5] on the premise that it didnot pertain to the disqualification of a member of the local self-governmenton the ground of direct or indirect pecuniary benefit. It was contendedthat Zelia M. Xavier’s[6]case was of greater relevance as it dealt withSection 10 of the Goa Panchayat Raj Act, 1994, which was analogous toSection 16(1)(i) of the said Act.

Our View:

15. We must begin with the objective of the said Act; which is tointroduce local self-governance and administration at the grassroots, andto entrust Zilla Parishads with the execution of works and developmentalschemes of the State Government. It is in this conspectus that the saidAct provides for the disqualification of elected representatives. Havingbeen conferred with major financial responsibilities, the statute maintainsa system of checks and balances to ensure transparency in local contractsand to obviate the possibility of elected representatives exercising undueinfluence. It is no doubt true that elected representatives should not bedisqualified on flimsy grounds. However, we are equally bound by thestatutory mandate, whereby activities which tend to defeat the objectiveof transparency should not be permitted to prevail.

16. The legislature in its wisdom has defined the grounds fordisqualification in expansive terms under Section 16(1)(i) of the saidAct. Thus, the use of the terminology – ‘directly or indirectly’, ‘by himselfor by his partner’, ‘any share or interest in any work done’, ‘by order ofZilla Parishad or in any contract with’, and ‘by or on behalf of the ZillaParishad’. All eventualities where the councillor can be said to have anyfinancial connection with the work of the Zilla Parishad were sought tobe included, with the object of discouraging the practice of financialpatronage that is inherently beneficial to the elected representatives.

17. If we now turn to the applicable precedent, this Court in ZeliaM. Xavier’s case had distinguished the applicability of Gulam Yasin’s[7]case. It was opined that in Gulam Yasin, this Court had held that toinvite disqualification, any interest or share had to be in the contractitself, and a mere relationship between the electoral candidate and anemployee of the Municipal Committee would not suffice to invitedisqualification.

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A18. In our opinion, both of these cases stand on a different footingas compared to the factual scenario before us. Gulam Yasin[8]wasconcerned with the interpretation of the Section 15(1) of the CentralProvinces and Berar Municipalities Act, 1922, which disqualified acandidate from standing for election if he had ‘an interest’ in the MunicipalCommittee. Moreover, another factor that weighed with the Court wasBthat the appellant in that case was subject to Mohammedan law, andthus he and his son could not be said to be members of an undividedfamily having common ‘financial interests’. On the other hand, in ZeliaM. Xavier[9], this Court was examining a situation where the appellantwas a Panchayat member who was disqualified as her husband hadCentered into a contract with the said Panchayat for the collection ofmarket fee. The Court’s decision ultimately took note of the fact that themoney affairs of the husband and appellant-wife were regulated by thePortuguese Civil Code, 1860, whereby the property of the spouses gotmerged upon marriage. Thus, it was held that the appellant-wife had afinancial interest in the Panchayat’s contract with her husband.D19. Despite these factual differences, we find that the commonprinciple that can be culled out from the aforementioned cases is thatthis Court had cautioned against interpreting disqualification provisionsin an overly restrictive or narrow manner. In both cases, this Court hadnoted that the salutary purpose of such provisions was to ensure theEpurity of administration in Municipal Committees.

20. On turning to the factual scenario of the present case, it maybe noticed that this was not even a situation where the appellant’s sonwas carrying on any existing contractual work. It was only soon afterthe election of the appellant that his son was registered as a contractor.FHe had no other contracts in that area or otherwise. The only contractawarded to him was the one where the funds flowed to the GramPanchayat from the Zilla Parishad of which the appellant was a member.The appellant had attempted to justify this situation by claiming that hisson was registered as a contractor soon after the appellant’s election ashe had just completed his studies. In our view, this fact raises furtherGsuspicions about the appellant’s interest in his son’s business.

21. The Zilla Parishad, Dhule issued a work order to the AaraveGram Panchayat for the repair of roads on 09.06.2020. This document, 8 (supra)H9 (supra)

and the Zilla Parishad’s counter affidavit, reveal that the funds flowedfrom the State Government to the Zilla Parishad, and in turn to the GramPanchayat. This is notwithstanding the translation of the resolution dated26.01.2020 adduced by the appellant, whereby an impression is soughtto be given as if the Gram Panchayat was willing to spend its own fundson the project. In any case, this translation has been seriously disputedby respondent no. 3. In our view, the issuance of the work order dated09.06.2020 by the Zilla Parishad itself shows the Zilla Parishad’ssupervisory and sanctioning role in the contract, which falls within thewide ambit of Section 16(1)(i) of the said Act.

22. We believe that probity in such financial transactions shouldbe the rule rather than the exception. The appellant had a greaterresponsibility as a father to make sure that his son does not enter into acontract that is sanctioned by the Zilla Parishad itself. We may note thefinding of fact by courts below that nothing had been placed on record toshow even a separation of residence between the son and the father,other than a ration card purporting to show that the son was living withhis grandmother. It was rightly observed that this was neither here northere, more so when the son had just completed his education.

23. We may also note that sufficient opportunities were madeavailable to the appellant to present his arguments. There cannot be abirthright to seek adjournments, especially when the DivisionalCommissioner was mandated to decide the issue of appellant’sdisqualification within a period of ninety days from respondent no. 3’sapplication, as per Section 40(2) of the said Act. The DivisionalCommissioner thus rightly treated the appellant’s written submissions ashis defence.

Conclusion:

24. In the aforesaid conspectus, we are thus of the view that theappeal must fail and is accordingly dismissed. The consequentialdisqualification would take effect from the date of the judgment.

25. The appeal is accordingly dismissed leaving the parties to beartheir own costs.

Nidhi Jain

Appeal dismissed.

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