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2011 Supreme(Guj) 406
High Court Of Gujarat
S.J.Mukhopadhaya, K.M.Thaker J.
Keshabhai Panabhai Solanki -Appellant
Versus
Dahyaji Babaji Thakor -Respondent
LETTERS PATENT APPEAL No. 2220 of 2010 In SPECIAL CIVIL APPLICATION No. 3553 of 2010
Decided On : Jul 06, 2011
Advocate Appeared:
M.P.Shah, Kruti M.Shah, N.K.Majmudar, Umesh Trivedi, H.S.Munshaw
Headnote:
Constitution of India, 1950 - Articles 226 and 227 - Gujarat Panchayats Act, 1993 - Section 59 - Gujarat Panchayats Act, 1993 - Section 59 - Indian Penal Code, 1860 - Sections 143, 149, 323, 426, 406, 408, 409, 420 and 120B - Locus standi - Suspension of Sarpanch - Question whether offence/conduct amounts to moral turpitude -Held, While taking the decision and exercising the discretion and before passing the order under sub-section (1) of section 59, the competent authority has to apply mind and to take into account the fact and allegations stated in the complainant/FIR or the charge-sheet and not merely the provisions - Detention, in prison is sufficient to take action - Orders by authorities below is set aside and matter is remitted to appellate authority for proper consideration - Judgment and order by Single Judge is upheld - if person is allowed to hold office of head of panchayat without any action under said provision, while he continues to be detained in prison then such inaction may result into and would amount trivializing system of local authority and it may uproot very basis of system viz. faith, trust and confidence of people electing their representatives -Not inclined to interfere with order of Single Judge setting aside appellate authority's order and confirm said part of judgment passed by Single Judge by which Single Judge quashed Appellate Authority's order - Appeal Disposed of
K.M.THAKER, J.
( 1. ) PRESENT Appeal under Clause 15 of Letters Patent is directed against the judgment and order dated 13.8.2010 whereby the learned Single Judge has allowed the petition preferred by present respondent No.1 and set aside the order dated 20.2.2010 passed by the Additional Development Commissioner and restored the order dated 25.6.2009 passed by the District Development Officer (DDO for short) by virtue of which present petitioner was put under suspension in exercise of the powers under Section (1) of Section 59 of the Gujarat Panchayats Act, 1993 (hereinafter referred to as the Act).
1.1 Having regard to the rival contentions, Admit. Mr. Majmudar, learned advocate for respondent No.1 and Mr. Trivedi, learned Additional Government Pleader and Mr. Munshaw, learned advocate for respondent No.5 have waived service of admission. With the consent and at the request of learned Counsel the appeal is taken up for final decision.
( 2. ) THE facts leading to and involved in present appeal need to be stated at this stage.
2.1 At the relevant time the appellant herein was holding post of Sarpanch of village Takodi. During his tenure three complaints viz. (1) CR. No. II-83 of 2008 for the offences punishable under Sections 323, 504, 506(2), 427 and 114 of IPC; (2) CR. No. I-86 of 2008 for the offence punishable under Sections 149, 143, 323, 426 of IPC and (3) F.I.R CR. No.I-15 of 2009 dated 27.1.2009 for the offences punishable under Sections 405, 406, 408, 409, 420, 465, 468, 471, 478, 477(A) and 120(B) of Indian Penal Code were filed against him. THE appellant was arrested and was detained in prison until he came to be released on bail.
2.2 It appears that present respondent No.1 (original-petitioner) had demanded before the District Development Officer (D.D.O. for short) that necessary and appropriate steps may be taken against the appellant in view of his arrest pursuant to the FIRs. In view of such complaint and insistence of the respondent No.1 the D.D.O. had issued a Notice calling upon the appellant to show cause as to why he should not be suspended from the post of Sarpanch. THE said complainant is present respondent no.1 and original petitioner.
2.3 Subsequently, the DDO passed order dated 25.6.2009 suspending the appellant from the post of Sarpanch. Aggrieved by the said order dated 25.6.2009, present appellant preferred appeal before the Development Commissioner (present respondent No.2) which was registered as Appeal No.86 of 2009.
2.4 At this stage, it is pertinent to note that in the said Appeal No.86 of 2009 (preferred by present appellant) present respondent No.1 had preferred an application, before the Development Commissioner, praying that he may be impleaded as party respondent. THE Appellate Authority allowed the said application of present respondent No.1 vide order dated 26.11.2009 and impleaded him as a party to the appeal proceedings. Consequently the respondent no.1 was one of the parties to the appeal proceedings instituted by present appellant.
2.5 It is pertinent to note that present appellant never challenged the said order dated 26.11.2009 and that therefore the said order remained unchallanged and has attained finality.
2.6 In view of the said order dated 26.11.2009, present respondent No.1 filed reply against the petitioner's appeal before the Development Commissioner and supported the D.D.O's order dated 25.06.2009.
2.7 Ultimately, by order dated 20.2.2010 the appeal preferred by present appellant was allowed and the order dated 25.6.2009 passed by the DDO suspending the appellant was set aside. THE Appellate Authority found that the first adjudicating authority had not examined as to whether the charges and alleged offence amounted to moral turpitude or not. He also observed that the charges cannot be said to be of moral turpitude.
2.8 Against the said order dated 20.02.2010, present respondent No.1 i.e. the complainant preferred the writ petition which was opposed by present appellant on di
