Point of Law: Provision as to consultation contained in sec. 9 (2) of the Act was directory in nature and that although it indicated a duty to consult the Panchayat before passing an order under that section it did not follow that every departure from that duty would taint the whole proceeding with a fatal blemish and render it void and ineffective

JUDGMENT :

V.M. Pancholi, J.

1. This petition is filed under Article 226 of the Constitution of India, in which, the petitioner has prayed that impugned Notification dated 19.01.2019 issued by respondent No. 1 while exercising powers under the Gujarat Panchayats Act, 1993, by which, Kadval Gram Panchayat is bifurcated into six different Gram Panchayats, be quashed and set aside. The petitioner has also prayed that the order dated 22.01.2019 passed by the State Government appointing Administrator of the Kadval Gram Panchayat be quashed and set aside.

2. Looking to the issue involved in the present petition and with the consent of the learned advocates appearing for the parties, the petition is taken up for final disposal. Hence, Rule. Mr. K.M. Antani, learned Assistant Government Pleader, waives service of notice of Rule for respondent Nos. 1 to 3, Mr. H.S. Munshaw, learned advocate, waives service of notice of Rule for respondent Nos. 4 and 5 and Mr. Pankaj S. Chaudhary, learned advocate, waives service of notice of Rule for respondent Nos. 6 to 8 i.e. newly added respondents.

3. The issue involved in the present petition is whether the procedure prescribed under Section 7 of the Gujarat Panchayats Act, 1993 ("the Act" for short) is followed by the respondent authorities, or not.

4. The factual matrix of the case is as under:

4.1. It is the case of the petitioner that she has contested election for the post of Sarpanch of Kadval Gram Panchayat. She was declared elected as Sarpanch. She took charge as Sarpanch in the month of January, 2018. However, on 07.03.2018, a Show-cause Notice was issued by the District Development Officer under Section 57(1) of the Act alleging certain irregularities and misappropriation. Thereafter, the petitioner was removed from the post of Sarpanch vide order dated 21.04.2018. Therefore, the charge of Sarpanch was given to Deputy Sarpanch, who appears to have called for Gram Sabha of Kadval village on 23.05.2018 for deciding various issues as stated in the agenda. It is alleged by the petitioner that the agenda was signed by the Deputy Sarpanch, Talati-cum-Mantri and only five members. It is further alleged that the issue with regard to the alteration of limits of Kadval Village Panchayat was not forming part of the agenda. However, at the end of the items mentioned for discussion, the said agenda was subsequently added. It is further stated that the effective consultation and process which is required to be followed by calling a meeting of the elected members of the Panchayat and, thereafter, by putting the same for discussion before the Gram Sabha, was not followed. Thus, without any kind of effective consultation and without informing the residents of the village, a resolution was passed.

4.2. It is further stated that the petitioner challenged the order of removal passed under Section 57(1) of the Act by filing an appeal before the Additional Development Commissioner. The said appeal was partly-allowed vide order dated 20.06.2018 and the order passed by the District Development Officer was quashed and set aside and the matter was remanded back for fresh consideration. The said order was not complied with and the petitioner was not permitted to take over the charge of Sarpanch. Therefore, various representations were made and ultimately, on 17.10.2018, the petitioner was allowed to take over the charge of Sarpanch.

4.3. It is further stated that now, the impugned Notification dated 19.01.2019 came to be issued by respondent No. 1 while exercising powers under Section 7 of the Act, by which, limits of Kadval Gram Panchayat is altered and six other Gram Panchayats are formed without any effective consultation with Gram Panchayat, which is a condition precedent for exercising powers under Section 7 of the Act. The petitioner has, therefore, preferred this petition.

5. Mr. Zubin F. Bharda, learned advocate appearing for the petitioner, has mainly contended that the impugned Notification issued by the responde