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2015 Supreme(Guj) 132
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
ABHILASHA KUMARI, J.
GITABEN W/O FULSINH THAKOR – Petitioner
Versus
THE STATE OF GUJARAT THROUGH – Respondent
SPECIAL CIVIL APPLICATION NO. 18886 of 2014
Decided On : 17/03/2015
MR VIJAY PATEL FOR HL PATEL ADVOCATES, ADVOCATE for the Petitioner(s) No. 1 MR UDIT D MEHTA, LEARNED ASSISTANT GOVERNMENT PLEADER for the Respondent(s) No. 1 MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 2
The power of removal of a democratically elected Sarpanch under Section-57(1) of the Gujarat Panchayats Act, 1993, should only be exercised for strong and weighty reasons and not for minor irregularities in the discharge of duties.
Headnote:
Removal - Sarpanch - Gujarat Panchayats Act, 1993, Section-57(1) - Summary of the acts and sections referenced and discussed by the court: The court discussed the provisions of Section-57(1) of the Gujarat Panchayats Act, 1993, which outlines the grounds for the removal of a member of the Panchayat, including misconduct, disgraceful conduct, abuse of power, persistent default in duties, and incapability of performing duties. The court emphasized that the power of removal can only be exercised for strong and weighty reasons and should not be invoked for minor irregularities in the discharge of duties by a democratically elected Sarpanch.
Fact of the Case:
The petitioner, a Sarpanch of Kadadara Gram Panchayat, was removed from office due to alleged failure to remove encroachments on public lands. The petitioner contested the removal, citing that some encroachments occurred before her tenure, and she had taken action to remove others.
Finding of the Court:
The court found that the petitioner's removal was not in line with the provisions of Section-57(1) of the Act, as the alleged inaction in removing encroachments did not constitute misconduct or persistent default in duties. The court emphasized that the power of removal should only be exercised for strong and weighty reasons.
Issues: The issues revolved around the grounds for the removal of the Sarpanch under Section-57(1) of the Act, and whether the petitioner's alleged failure to remove encroachments constituted misconduct or persistent default in duties.
Ratio Decidendi: The court held that the power of removal can only be invoked for strong and weighty reasons and should not be exercised for minor irregularities in the discharge of duties by a democratically elected Sarpanch. The court emphasized that failure to remove encroachments may constitute inefficiency but not misconduct under Section-57(1) of the Act.
Final Decision: The impugned orders removing the petitioner as Sarpanch were quashed and set aside, and the petitioner was directed to be reinstated as the Sarpanch of Gram Panchayat Kadadara.
1. Rule. Mr.Udit D. Mehta, learned Assistant Government Pleader, waives service of notice of Rule for respondent No.1 and Mr.H.S.Munshaw, learned advocate, waives service of notice of Rule for respondent No.2.
2. The challenge in this petition preferred under Articles-226 and 227 of the Constitution of India is to the impugned order dated 18.10.2014, passed by respondent No.2, District Development Officer and the order dated 16.12.2014, passed by respondent No.1, Additional Development Commissioner, whereby the order of respondent No.2, removing the petitioner as Sarpanch of Kadadara Gram Panchayat, has been confirmed.
3. The case of the petitioner, as stated in the petition, is that she was elected as the Sarpanch of Kadadara Gram Panchayat and was performing her duties as such. A Show Cause Notice dated 26.03.2014 was issued to the petitioner by respondent No.2-District Development Officer, under Section-57(1) of the Gujarat Panchayats Act, 1993 (“the Act”, for short) to show cause why she should not be removed from the office of Sarpanch, on the ground that she has failed to remove the encroachments on the Gamtal and Gauchar lands of the Panchayat. It is alleged in the said notice that during the term of the petitioner as Sarpanch, encroachments Nos.1 to 17 have been registered in the Encroachment Register of the village. It is further alleged that as per the representation received by respondent No.2, new encroachments have come into existence and though the Sarpanch is duty-bound to remove them under Section- 105 of the Act, no proceedings have been initiated by the petitioner. It is, therefore, alleged that the petitioner is directly responsible for the said encroachments. The petitioner replied to the Show Cause Notice on 09.04.2014. Thereafter, proceedings before respondent No.2 took place from time to time. The petitioner sought time for submitting her reply, but did not attend the hearing on 22.09.2014. After taking into consideration the material on record, including the reply of the petitioner to the Show Cause Notice, respondent No.2 passed the impugned order dated 18.10.2014, under Section-57(1) of the Act, removing the petitioner from the office of Sarpanch. Aggrieved by the said order, the petitioner preferred an appeal before respondent No.1, who rejected it by the impugned order dated 16.12.2014. Aggrieved by the aforementioned orders, the petitioner has approached this Court.
4. Mr.Vijay H. Patel, learned advocate for H.L.Patel Advocates, on behalf of the petitioner, has submitted that the impugned orders passed by respondents Nos.2 and 1 deserve to be quashed and set aside, as the said authorities ought to have taken into consideration that there is a Report of the Circle Inspector of the District Panchayat, Gandhinagar, dated 26.08.2013, stating that the seventeen encroachments that have been registered in the Encroachment Register have been made during different periods of time and are required to be removed. Some of the encroachments have been made during a period of five to ten years, even before the petitioner assumed the office of Sarpanch. Therefore, she alone, cannot be held responsible for them.
5. It is further submitted that in the reply to the Show Cause Notice, the petitioner has stated that out of the seventeen encroachments mentioned in the Encroachment Register, the encroachments at Serial Nos.4, 3, 5 and 9 cannot be considered as encroachments, for reasons stated in the reply. The encroachments at Serial Nos.1, 6 and 7 have been removed. In all, seven encroachments have been removed and for the rest of the nine encroachments at Serial Nos.2, 8, 10, 11, 12, 13, 14, 15 and 17, the constructions have taken place prior to tenure of the petitioner. It has further been stated in the reply that in spite of this, notices have been issued by the petitioner to the encroachers. However, as the Code of Conduct for the general elections was in force, no action could be taken. That, this expla
