( 1 ) CONSIDERING the scope of the controversy the petition is taken up for final hearing and disposal today. Rule. Learned Advocate and learned Assistant Government Pleader appearing for respective respondents are directed to waive service.

( 2 ) THE petitioner is an elected member of Modhwana Gram Panchayat. It appears that on 01/04/2008 at a meeting of the Gram Panchayat certain resolution moved from the Chair was opposed by the petitioner and three others, who are petitioners in Special Civil Application Nos. 4151, 4152 and 4153 of 2009. One of the subject matter pertained to removal of encroachments. As the petitioner and three other persons had opposed the proposed resolution on this count the Deputy Sarpanch made an application to the Taluka Development Officer reporting the incident. The Taluka Development Officer thereupon forwarded a communication dated 27/05/2008 to respondent No. 1, viz. , District Development Officer (DDO ). A show-cause notice came to be issued on 07/06/2008 which was replied to by the petitioner on 21/07/2008. On 07/11/2008 an order came to be made by the DDO removing the petitioner and three others from the post of member of the Gram Panchayat in exercise of powers under Section 57 (1) of the Gujarat Panchayats Act, 1993 (the Act ). The petitioner carried the matter in appeal under provisions of Section 57 (3) of the Act and also filed an application for interim relief during pendency of the appeal. On 06/01/2009 the petitioner was granted interim relief staying the operation of order dated 07/11/2008 made by respondent No. 1. Subsequently the appeal came to be dismissed vide order dated 31/03/2009. The petitioner has challenged the aforesaid orders dated 07/11/2008 and 31/03/2009.

( 3 ) AFTER narrating the aforesaid facts learned Advocate for the petitioner submitted that as there was no material available to establish any encroachment and the reason for removal of so-called encroachment the proposed resolution was opposed by the petitioner and three others. It was further submitted that the petitioner and three others in principle did not oppose removal of encroachments but the opposition was due to lack of material establishing encroachment. Learned Advocate therefore submitted that the entire exercise was illegal and without jurisdiction as provisions of Section 57 (1) of the Act could not be used in this manner to remove a member from the Panchayat for opposing a proposed resolution.

( 4 ) LEARNED Advocate appearing for DDO read extensively from the order made by DDO to submit that under Section 105 of the Act a Panchayat was duty bound to remove encroachment and if there was any opposition to a proposal to remove encroachments it would mean that the person so opposing would be failing in discharging the duty cast under the provisions of the Act. That there were encroachments was an admitted position and hence the opposition by petitioner and three others itself indicated that the said persons had failed in discharging their duties and were liable to be removed under provisions of Section 57 (1) of the Act. In support of the submissions reliance has been placed on judgment of this High Court in the case of Kalaji Hathiji Thakore Vs. State of Gujarat reported in 2000 (2) GLH 582.

( 5 ) LEARNED Assistant Government Pleader reiterated what has been stated in the impugned orders dated 07/11/2008 and 31/03/2009.

( 6 ) SECTION 57 (1) of the Act stipulates that a competent authority may remove from office any member / Sarpanch / Upa Sarpanch of a Panchayat from the office, after giving him an opportunity of being heard and after such inquiry as may be necessary, provided such member, etc. , has been: 01) guilty of misconduct in discharge of his duties, or 02) guilty of any disgraceful conduct, or 03) abuses his powers, or 04) makes persistent default in the performance of his duties and functions under the Act, or 05) has become incapable of performing his duties and functions under the Act. Thus

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