1999 Supreme(Guj) 422

Gujarat High Court
Judgename :M.R.CALLA
HARSUKHBHAI GORDHANBHAI HADVANI - Appellant
Versus
STATE - Respondent
S.C.A. 8744 of 1998
Decided On : 08/23/1999

Headnote:(a) Gujarat Panchayat Act (Gujarat Act 18 of 1993) - Sec. 57(1) - Order of D.D.O. dated 21.8.1998 removing petitioner from the office of Sarpanch - Validity - Court considering facts alleged in notices given to petitioner, found that there was no case of misconduct & there was nothing to show that the petitioner had been guilty of misconduct in discharging his duties - The allegation that petitioner granted permission for construction of hotel in residential area is contrary to record - No such allegation is made even in FIR filed against such construction by Taluka Panchayat - He has not been even named as abetted - The position with regard other allegations is also the same and these allegations appear to be factually incorrect & contrary to record - As a result of D.D.O. dated 21.8.1988 & the order of Additional Development Commissioner rejecting the appeal there against are quashed & set aside.

       So far as the challenge to the order passed against the petitioner Sarpanch Harsukhbhai Hadvani is concerned, the same has been challenged by the petitioner on grounds more than one including the ground that even on the basis of the allegations which had been levelled against the petitioner, there was no case of misconduct and there was nothing on record to show that the petitioner had been guilty of misconduct in discharging his duties or of any disgraceful conduct or abuse of power or that he had made persistent default in performance of duties and functions under the Act and it has been submitted that apart from the fact that the allegations are factually incorrect on the basis of which the order has been passed under Sec. 257 of the Act, the same has been passed without application of mind and that it also suffers from an error apparent on the fact of the record inasmuch as the petitioner had never granted permission to any party for the purpose of construction of a hotel and yet it has been treated as if such a permission had been granted by the petitioner.

       The allegation that the permission was granted for construction of the hotel in the residential area for which the N.A. permission was there is contrary to the record because no such permission has been granted and yet it has been taken as if such permission had been granted by the petitioner. If at all there is any controversy that there was another map with regard to the construction of the hotel also, that would not show that the permission was also granted for the purpose of construction of hotel. The parties may produce any map but unless and until the permission is granted for such purpose, no misconduct can be found to have been proved against the petitioner on that basis, more particularly, when it is established from the record and the copy of the FIR G.R. No. 73 of 1997 dated 4th September, 1997 lodged by the Circle Inspector of Police, Taluka District Junagadh, namely, Dinkar Natvarlal Thakkar against Naliniben Mahendrakumar Rajani of Timbawadi for the offences under Secs. 465, 468, 471 etc. If the party who had applied for permission has committed any breach to use the permission granted on the map of the construction of residence and have used it to their advantage with reference to the other map which was for the hotel, the petitioner could not be held responsible for that matter. The petitioner has not even been alleged to be an abetter in this FIR which was lodged by the Taluka Panchayat itself. It is, therefore, clear that the order as has been passed by the District Development Officer proceeds on the basis of a wrong directed against the petitioner for which the basic facts were wanted to constitute a case of misconduct against him.

       In such matters, when the officers charged with the duties under the Panchayats Act exercise such statutory powers against the elected office bearers as a part of the local authorities like the Panchayats when they are elected for a definite tenure, the officers cannot threat such elected officers as if they are passing the impugned orders in relation to the employees and unless and until there is cogent proof of clear misconduct or the persistent default in performance of the duties or the abuse of powers as contemplated under Sec. 57 of the Act, the drastic action of removal should not be resorted to. Such powers of removal should be exercised by the functionaries under the Act with great care and caution and that too sparingly. On the basis of the replies to the notices as filed by the petitioner and the permission dated 2.8.1997 as had been granted by the petitioner, the copy of which has been placed on record as Annexure-N, no such action was warranted. The position with regard to the other allegation is also the same inasmuch as the petitioner had granted permission only with regard to Plot No. 1 of Survey No. 64 as against the Plot No. 47 as per the allegations and these allegations also appear to be factually incorrect and contrary to the record.

       [Para 4]

       For the reasons, the impugned order dated 21.8.1998 passed by the District Development Officer removing the petitioner from the office of the Sarpanch of Gram Panchayat, Timbawadi, Taluka District Junagadh and the order dated 8th October, 1998 passed by the Addl. Development Commissioner rejecting the appeal and upholding the order passed by the District Development Officer are hereby quashed and set aside and as a consequence thereof, the petitioner stands relegated to the position which he was holding prior to the passing of the impugned order dated 21.8.1998 as passed by the District Development Officer, Junagadh. In the result, the petitioner continues to be the Sarpanch of the said Gram Panchayat as if the impugned orders had never been passed against him. The Special Civil Application No. 8744/98 is accordingly allowed and the Rule is made absolute. No order as to costs.

       [Para 6]

       (b) Gujarat Panchayat Act (Gujarat Act 18 of 1993) - Secs. 55(3)(4), 59(2) & Sec. 278 - Appointment of Shri P.M. Trivedi Assistant Taluka Development Officer to perform the powers, functions & duties of the Panchayat - Order was passed by Govt. under the provisions of Sec. 278 after removal of Sarpanch as Upsarpanch did not take charge of the Sarpanch - On the facts Special Civil Application No. 8744/98 has been allowed & petitioner have been relegated to the position of elected Sarpanch, therefore impugned order of appointment deserves to be withdrawn by Govt. itself as a natural consequences - However as the order is under challenge Court decided to deal with it on merits - Refering the provisions under Sec. 278 Court held that it is to be resorted to only in case of difficulties as it is intended for the purpose - Reading provisions under Secs. 55(3), 59(2) read with Sec. 55(4) & Clause (iv) of Sub-sec. (2) thereof makes it clear that Legislature itself has taken case of the contingency where in the Sarpanch & Upsarpanch are not available - There was no question of exercise of any powers under Sec. 278 in the name of removal of difficulties - It is therefore arbitrary exercise of power which deserves to be set aside.

       So far the functioning of the Panchayat is concerned, enough care has been taken by the Legislature itself by making appropriate provisions in Secs. 55 and 59(2) as has been reproduced above and there was no question of exercise of any powers under Sec. 278 in the name of removal of difficulties so as to appoint a Government officer for discharging the functions of the said Panchayat which could be very well discharged by the remaining members of the Panchayat even if the Sarpanch and Up-Sarpanch were not treated to be available for the functioning of the Panchayat by the Government. It is therefore, a clear case of an arbitrary exercise of the powers under Sec. 278 of the Act as there was no difficulty for the functioning of the Panchayat and the Panchayat could very well function even in absence of Sarpanch and Up-Sarpanch in accordance with the provisions to which the reference had been made by the Division Bench while deciding the Letters Patent Appeal on 29th April, 1999 to which a detailed reference has been made hereinabove. Had the author of the impugned order dated 19th April, 1998 gone through the relevant provisions as contained in the Panchayats Act itself, he could not have found it necessary to pass the impugned order in the name of removing difficulties and in any case, no such situation was available before the author of the impugned order so as to exercise the powers under Sec. 278 of the Act and ex-facie it is found to be a case of arbitrary action so as to take resort to Sec. 278 in the name of removal of difficulties whereas no difficulty in fact could be said to be existent, in the eye of law.

       [Para 8]