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Hon’ble Smt. Justice Abhilasha Kumari
Dineshbhai Govabhai Makwana
Versus
State of Gujarat & Ors.
Special Civil Application No. 2750 of 2012—Decided on 12/04/2012
Gujarat Panchayat Act, 1993 (Guj. Act No. 18 of 1993) — Section 57(1) — Removal from office of Sarpanch — Ground that petitioner did not take prior permission from competent authority before issuing instructions of emptying the mud for filling upon ditch — Sustainability — Finding of — The record reveals that the only finding that in supported by evidence against petitioner is that he did not take prior permission from competent authority before issuing instructions for emptying the mud for filling upon the ditch — The person who emptied the truck of mud A has stated in his statement that petitioner only instruct him to excavate the mud to empty three tractor-Load of mud — He however implied only one tractor-Load and took Rs. 150/- as labour charges — There is no material on record to support the finding that petitioner has sold the mud to any person or has derived any financial advantage or gain there from — Thus the actions of the appellant petitioner even if proved only amount to irregulatories and not grave form of illegalities as enumerated in Section 57 which may allow the State Government to invoke its power to remove petitioner appellant from the office of Sarpanch — The case of petitioner does not fall within the ambit and scope of Section 57 of the Act — The order of respondent No. 3 confirmed by Respondent No. 2 are not sustainable hence quashed and set aside.
Held :
The record reveals that the only finding that is supported by evidence against the petitioner is that he did not take prior permission from the Competent Authority before issuing instructions for emptying the mud for filling upon the ditch. In his statement dated 02-8-2009, Kanjibhai does not state that the petitioner instructed him to excavate the mud but only states that Ashwinbhai Kanjibhai Patel asked him to empty three tractor-loads of mud. However, he emptied only one tractor-load and took Rs. 150/- as labour charges. As already discussed hereinabove, there is no material on record to support the finding that the petitioner has sold the mud to any person or has derived any financial advantage or gain therefrom. [Para 32]
The action of the petitioner can, at best, be stated to be an irregularity in the discharge of his duties, but does not amount to misconduct, within the meaning of Section 57(1) of the Act. [Para 33]
It cannot be read to mean that the petitioner has committed persistent defaults. At the worst, instructing a member of the Gram Panchayat to empty three tractor-loads of mud through Ashwinbhai Kanjibhai Patel, for the purpose of filling up the ditch, without prior authorisation can be termed as a singular aberration but does not amount to an abuse of power. Further, there is no material on record to indicate that the petitioner is incapable of performing his statutory duties and functions. Viewed from all angles, in my considered view, the ingredients of Section 57(1) of the Act are not attracted in the present case, which is not one that warrants the exercise of the power of removal. The said provision of law encapsulates drastic power to remove a democratically and duly elected Sarpanch from his office. As such, it ought to be read strictly, as removal from office would not only cast a lasting stigma, but would also entail serious civil consequences. [Para 33]
Law Laid Down :
An honest though erroneous exercise of power or an inaction or indecusion is not an abuse of power.
Smt. Abhilasha Kumari, J.—Rule. Mr. Rohan Yagnik, learned Assistant Government Pleader, waives service of notice of Rule for Respondents Nos. 1 and 2, Mr. Rajesh Chauhan, learned advocate for Mr. H.S. Munshaw, waives service of notice of Rule for Respondent No. 3, and Mr. Krunal D. Pandya, learned advocate, waives service of notice of Rule for Respondent No. 4.
2. By preferring this petition under Articles 226 and 227 of the Constitution of India, the petitioner has challenged the legality and validity of the order dated 09.02.2012 passed by the Additional Development Commissioner, confirming the order dated 02.01.2012, passed by the District Development Officer, Mehsana, whereby, the petitioner has been removed from the office of Sarpanch.
3. Briefly stated, the relevant facts of the case are as follows:
The petitioner was elected as Sarpanch of Mitha Gram Panchayat, in the year 2007. According to the petitioner, Respondent No. 4, who was defeated by him in the election to the said office, made several false complaints against him, acting upon which the District Development Officer (respondent No.3), after issuing a Show Cause Notice dated 01.05.2010, to the petitioner, passed an order on 19.07.2010, in exercise of powers under Section 57(1) of the Gujarat Panchayats Act, 1993 (‘the Act’ for short), removing the petitioner as Sarpanch. Against this order, the petitioner filed an appeal before the Additional Development Commissioner (respondent No.2) who, by order dated 05.09.2012, remanded the matter to Respondent No. 3 for proper inquiry, directing that adequate opportunity of hearing be given to the petitioner. The District Development Officer, after hearing the petitioner, passed the order dated 02.01.2012, that has been confirmed in appeal by the Additional Development Commissioner by his order dated 09.02.2012, both of which are impugned in this petition.
3.1 The gist of the single charge against the petitioner, as contained in the Show Cause Notice dated 01.05.2010 is to the effect that the petitioner is alleged to have directed Kanjibhai Hargovanbhai Patel, a member of the Gram Panchayat, to empty three tractor-loads of mud, excavated from Gauchar land bearing Survey No. 175, into a ditch near a place in the village known as Midiapir, in front of the Primary Health Centre, where water used to collect without permission of the competent authority or a Resolution of the Gram Panchayat authorising him to do so. The allegation against the petitioner is that he has sold the mud, for which the Royalty has been paid by Kanjibhai Hargovanbhai Patel at the rate of Rs. 8640/-. It is alleged that the petitioner is responsible for this unauthorised act of excavation of mud, and has thereby acted in connivance with the member of the Gram Panchayat who has excavated the mud, without authorisation and for financial gains, therefore, proceedings for removal as Sarpanch under Section 57(1) of the Act are liable to be initiated against him.
3.2 The petitioner gave a detailed reply to the Show Cause Notice, explaining that dirty water and monsoon water used to accumulate in the ditch in front of the Primary Health Centre, giving rise to extremely unhygienic conditions. The water-logged ditch also posed a danger to the safety of village children, as there was every possibility that they could fall into it. The petitioner stated that he had received several oral complaints and representations from the people of the Village in this regard, therefore, he had requested a member of the Gram Panchayat who owned a tractor, to fill up the ditch with three tractor-loads of mud, without any charge, as a service to the village people. It is the specific case of the petitioner that in doing so, he has not derived any financial gain, whatsoever, and his actions have been purely motivated by good intentions, in order to prevent a mishap from taking place. In his reply, the petitioner has further elaborated that false complaints are being filed again
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