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2009 (3) GCD 2195 (Guj) (DB)
Hon’ble Mr. Justice Mohit S. Shah &
Hon’ble Ms. Justice H.N. Devani
Dipakbhai Mohanbhai Patel
Versus
A.S. Patel or His Successor in the Office & Ors.
Letters Patent Appeal No. 13 of 20091—Decided on 20/03/2009
Gujarat Panchayat Act, 1993 — Sections 30(1)(d), 55(1), 56, 57(1), 57(3), 104, 114 and 253 — Gujarat Panchayat Election Rules, 1994 — Rule 9(2) — Sarpanch and Members of Panchayat — Removal from office — Ground of acts of commission and omission — Sustainability — Finding of — On account of not taking any necessary action for removal of unauthorised construction and granting building permission in violation of N.A. permission, DDO by it’s order under Section 57(1) of the Act passed impugned order of removal of Sarpanch and Member of Panchayat — Court held, that in view of the facts it was not a case for DDO to exercise powers under Section 57(1) of the Act — It was on the contrary an appropriate case for exercise of powers under Section 253 of the Act for dissolution/supersession of Gram Panchayat — In view of this finding Court observed that it would have quashed the order of removal passed under Section 57 of the Act and left the matter to be decided by Competent Authority under Section 253(1) of the Act — It is true that might have required restoring the appellants to the office but the subsequent events of new election of members to the office of Panchayat it is not possible specially when newly elected members are not before the Court to do so — The Court, therefore, holding that power of removal under Section 57 of the Act could not have been exercised by DDO against the present appellants and accordingly declaring removal of the appellants from the office of the members of Bopal Gram Panchayat as not in accordance with Law, the Court declined to grant any direction for restoring the appellants to the office of Members of Panchayat — However, appellants shall not be treated to have incurred any disqualification.
Held :
After considering all the relevant facts and circumstances of the case and the statutory provisions, even while holding that the matter was more appropriate for exercise of the powers under Section 253(1) of the Act in so far as the Bopal Gram Panchayat had failed to take action for removal of unauthorized constructions and not under Section 57(1) of the Act, this Court is not inclined to exercise the extraordinary discretionary prerogative writ jurisdiction under Article 226 of the Constitution to restore the appellants back to their office as members of the Bopal Gram Panchayat as elections have already been held in the meantime on 25.1.2009 for the office of Sarpanch as well as all the 26 seats of members of the Gram Panchayat including the 13 seats previously held by the present appellants. The results of the election were also declared on 27.1.2009 and the newly elected body has already held its first meeting on 21.2.2009. [Para 25]
In view of the above discussion, while holding that in the facts of this case, the power of removal under Section 57 of the Gujarat Panchayats Act could not have been exercised by the DDO against the present appellants and accordingly declaring removal of the appellants from the office of members of Bopal Gram Panchayat as not in accordance with law, this Court declines to grant any direction for restoring the appellants to the office of members of the Bopal Gram Panchayat. The appellants shall not be treated to have incurred any disqualification under Section 30(1)(d) of the Act. [Para 26]
Law Laid Down :
Granting and withholding of relief may properly be dependent upon considerations as of public interest.
Case Law Analysis :
Bihar Assembly Dissolution, 2005 (7) SCC 625, 2006 (2) SCC 1 [Para 24];; Shiv Shankar Dal Mills vs. State of Haryana, 1980 (2) SCC 437 [Para 24].—Relied on
Mohit S. Shah, J.—This group of 13 appeals, under Clause 15 of the Letters Patent, is directed against the common judgment dated 25.8.2008 of the learned Single Judge in Special Civil Application No. 30705 of 2007 and connected petitions challenging removal of the appellants from the office of members of Bopal Gram Panchayat under Section 57(1) of the Gujarat Panchayats Act, 1993 (hereinafter referred to as ‘the Act’).
2. Elections to Bopal Gram Panchayat were held on 25.12.2006. One Shantaben Bachubhai Patel was elected as Sarpanch. The present appellants, 13 in number, along with 13 other persons were elected as members of Bopal Gram Panchayat (hereinafter referred to as ‘the Gram Panchayat’). The first meeting of the Panchayat was held on 17.1.2007. By a show-cause notice dated 7.8.2007, the Sarpanch and other members of the Gram Panchayat including the present appellants, were called upon to show cause why they should not be removed from the office of Sarpanch and members of the Gram Panchayat under Section 57(1) of the Act for the acts of commission and omission, more particularly for granting building permission in a number of cases in collusion with owners of the lands concerned, which resulted into violation of the directions given by this Court and the instructions given by the Revenue Department of the State Government and also for not restraining or removing unauthorized construction by a large number of persons without building permission of the Gram Panchayat. The Sarpanch submitted her reply. The appellants herein also submitted their separate reply dated 17.8.2007. The thrust of their defence was that the Talati-cum-mantri had not performed his duties of bringing the instructions of the superior offices to the notice of the Sarpanch and the members of the Gram Panchayat and that the responsibility of initiating action against unauthorized construction was that of the Talati-cum-mantri. The appellants also took up the additional defence that the Gram Panchayat had not granted the alleged building permissions, but the agenda and resolutions of the meetings of the Gram Panchayat were interpolated by getting such resolutions placed on the record of the Panchayat.
3. The District Development Officer, Ahmedabad (Rural) by his order dated 21.8.2007, accepted a part of the appellants’ defence regarding the building permissions granted pursuant to the resolutions dated 16.4.2007 and 2.5.2007, but the District Development Officer held that 13 resolutions were passed by the Gram Panchayat at the meeting held on 8.3.2007 which were contrary to law. The DDO also held that there were as many as 32 cases where the Gram Panchayat had not granted any building permission, but the members of the Panchayat had not got any notice issued against unauthorized construction. Moreover, there were 58 cases where non-agricultural permissions granted in the distant past had lapsed on account of non-compliance with the conditions to commence, within six months and to complete within three years, construction on the lands in question. In spite of breach of such mandatory conditions of the NA permissions granted in the past, the Sarpanch and the members of the Panchayat had granted building permissions in collusion with the owners of the concerned lands and thus the Sarpanch and members of the Gram Panchayat had abused their powers and had also committed persistent defaults by not taking any action against unauthorized constructions.
4. Aggrieved by the above orders, the Sarpanch as well as the appellants preferred appeals under Section 57(3) of the Act before the appellate authority. The appellate powers of the State Government under Section 57(3) of the Act are delegated to the Additional Development Commissioner by a statutory delegation order contained in Notification dated 26.7.1994 as amended from time to time. The Additional Development Commissioner heard the appeals and dismissed all the appeals on 15.10.2007.
5. Aggrieved by the
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