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2009 Supreme(Guj) 143
2010 (1) GCD 385 (Guj) (DB)
Hon’ble Mr. Justice Mohit S. Shah &
Hon’ble Ms. Justice H.N. Devani
Jyotiba S. Zala
Versus
District Development Officer & Anr.
Letters Patent Appeal No. 1173 of 20081—Decided on 17/03/2009
Appearance :
Mr. P.V. Hathi, for the Appellant.
Mr. H.S. Munshaw, for the Respondent No. 1.
Ms. Jirga Jhaveri, Asstt. Government Pleader, for the Respondent No. 2.
Point in Issue :
Whether in the circumstances and facts alleged, removal of appellant from the office of Sarpanch is justified?
Headnote:Head Note :
Gujarat Panchayat Act, 1993 — Sections 57(1) and 57(3) — Gujarat Panchayats (Procedure) Rules, 1997 — Rules 10, 11 and 40 — Letters Patent — Clause 15 — Office of Sarpanch of Village — Removal — Resolution by Panchayat in absence of requisite quorum — Finding as to — Sustainability — In the light of statutory provisions it is the duty of the secretary to record the minutes of the meeting — Hence if the minutes of a non-quorum meeting as alleged in the case against appellant could not have been recorded it was the secretary who would be liable for recording the minutes — Merely because the appellant a Lady Sarpanch who having assumed charge of office recently and not aware as contended by her of the procedure has signed the minutes written by the Talati-cum-Mantri, she could not be held liable for recording minutes of the said meeting where in alleged resolutions were passed — Beside a conjoint reading of the show cause notice along with the finding recorded by DDO clearly shows that the finding travels much beyond the show cause notice and there is violation of principle of natural justice — There has been violation of principles of natural justice by non-supply of report of Taluka Development Officer as well as copy of affidavits filed by shopkeepers on the basis of which impugned order of removal was based — The said documents donot find place or reference in show cause notice — In view of the said facts Court quashed and set aside impugned orders removing appellant from the post of Sarpanch.
Held :
Examining the charges levelled against the appellant in the light of the aforesaid statutory provisions, it is apparent that it is the duty of the Secretary to record the minutes of the meeting. Hence, if the minutes of a non-quorum meeting could not have been recorded, it was the Secretary who would be liable for recording the minutes. Merely because, the appellant, a lady Sarpanch who having assumed charge of office recently and therefore, may not have been aware of the procedure, has signed the minutes written by the Talati-cum-mantri, she could not have been held liable for recording the minutes of the said meetings. Besides, a conjoint reading of the show cause notice along with the finding recorded by the District Development Officer clearly shows that the findings recorded by the District Development Officer travel much beyond the show cause notice, inasmuch as the show cause notice refers to only one resolution, viz. resolution No. 1 having been passed on 28th February, 2007 whereas the impugned order refers to various other resolutions having been passed on the same day. Thus, the appellant having not been put to notice as regards the said resolutions would certainly not have been in a position to deal with the same. In the circumstances to that extent the impugned order suffers from the vice of being violative of the principles of natural justice as the same travels beyond the scope of the show cause notice. [Para 12]
It may also be pertinent to note that in response to the averments made in the petition, the Respondent No. 1 District Development Officer had filed an affidavit in-reply wherein he has referred to a report of the Taluka Development Officer as well as the affidavits filed by shop-keepers, on the basis of which he has passed the order of removal under Section 57(1) of the Act. Admittedly, the said documents do not find a reference in the show cause notice, in absence of which, the appellant was not in a position to ask the Respondent No. 1 to supply the same to her. In the circumstances, the impugned order which is based upon material which is neither mentioned in the show cause notice nor supplied to the appellant, is violative of the principles of natural justice and as such, cannot be sustained. [Para 14]
Law Laid Down :
It is the duty of Talati-cum-Mantri to invite alienation of the Sarpanch to the procedural requirements to hold meeting of Panchayat.
Case Law Analysis :
Prabhodhrai Dhirajram Nayak vs. District Panchayat, Surat & Ors., 1983 (2) GLR 1221 [Para 7];; Kamlaben Rohitbhai Patel vs. Additional Development Commissioner, 2000 (2) GLR 1174 [Paras 7 & 20];; Chetanbhai Virjibhai Dhamecha vs. State of Gujarat, in Letters Patent Appeal No. 842 of 2008, dated 28th December, 2008 [Para 17];; Tarlochan Dev Sharma vs. State of Punjab, 2001 (6) SCC 260 [Para 19].—Relied on
Ms. H.N. Devani, J.—By this appeal under Clause 15 of the Letters Patent, the appellant has challenged the judgement and order dated 4th August, 2008 passed by the learned Single Judge dismissing the petition filed by the appellant challenging the order dated 22nd August, 2007 passed by the District Development Officer, Ahmedabad in exercise of powers under Section 57(1) of the Gujarat Panchayats Act, 1993 (“the Act”) whereby the appellant was removed from the office of Sarpanch of village Dholera, which order was confirmed by the Additional Development Commissioner by his order dated 25th September, 2007.
2. The appellant was elected to the office of Sarpanch of Dholera Gram Panchayat on 12th December, 2007 and took charge on 17th January, 2007. Within a short period of about five months, the District Development Officer issued a show cause notice dated 20th June, 2007 against the appellant calling upon her to show cause as to why she should not be removed from the office of Sarpanch under Section 57(1) of the Act. The charges levelled against the appellant were (i) a meeting of Dholera Gram Panchayat was convened on 28.2.07, in which meeting no member was present and despite the fact that there was no quorum as required under the Panchayats Procedure Rules, vide resolution No. 7 it had been resolved to demolish circles; (ii) in the meeting held on 25.1.07 only two members were present and there was no quorum despite which Resolutions No. 2 to 4 were passed; (iii) in the meeting convened on 28.3.07, no member was present, however, despite there being no quorum the minutes were recorded; (iv) in the meeting convened on 25.4.07, no member was present, however, despite there being no quorum the minutes were recorded and (v) two circles of the Dholera Gram Panchayat were constructed by the Government with the participation of the public. By demolishing the said circles, loss has been caused to public property. On the aforesaid charges, it was alleged that the appellant is guilty of abuse of powers and lack of devotion towards her duties.
3. In response to the said show cause notice, the appellant submitted a reply dated 29th June, 2007 denying the allegations levelled against her. According to the appellant it is the duty of the Talati-cum-mantri to decide as to whether there is a quorum. When there is no quorum, under the provisions of the Panchayats Act minutes of a non-quorum meeting are not to be recorded, however the Talati-cum-mantri has recorded the same. Thus, in respect of such action, it is the Talati-cum-mantri who is responsible. As regards resolution 7, an application had been received from shopkeepers to demolish the circles and that as a part of her duties she had presented the same at the meeting, whereupon the Talati-cum-mantri had written the resolution. According to the appellant, it was the duty of the Talati-cum-mantri to write the resolution and if the resolution was illegal the Talati-cum-mantri had not given any guidance in that regard. Resolutions of the Gram Panchayat are to be implemented by the Talati-cum-mantri, who had not suggested to her as to what course of action is required to be adopted to remove the circles, which were in the nature of hindrances. No authority had been authorised to implement the said resolution, however, it appears that the implementing authority has acted in accordance with his understanding. As regards Resolutions No. 2 to 4, it was submitted that despite the meeting being non-quorum the Talati-cum-mantri has written the resolutions as well as the minutes to malign the elected office bearers. In respect of the other allegations it is submitted that the minutes were recorded by the Talati-cum-mantri and that when the under the rules minutes of a non-quorum meetings were not to be recorded, the Talati-cum-mantri ought not to have recorded the same and should have given proper guidance to the elected body. According to the appellant she was not conversant with the provis
