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2024 Supreme(Online)(GUJ) 14389
HIGH COURT OF GUJARAT
MRS. JUSTICE SUNITA AGARWAL, CJ, MR. JUSTICE ANIRUDDHA P. MAYEE, J
PATEL MAHESHKUMAR BECHARDAS – Appellant
Versus
STATE OF GUJARAT – Respondent
C/WPPIL/26/2024
Statutory remedies must be pursued before filing a Public Interest Litigation regarding actions against elected representatives under the Gujarat Panchayat Act, 1993.
Headnote:(A) Gujarat Panchayat Act, 1993 - Sections 57, 71, 85, and 274 - Public Interest Litigation seeking action against the Sarpanch for unauthorized construction on panchayat land - Court held that statutory remedies must be pursued before filing PIL - Dismissed for lack of maintainability. (Paras 4, 6, 8)
(B) Accountability of elected representatives - The court emphasized the need for a structured procedure to handle complaints against elected officials to prevent misuse and ensure fairness. (Paras 7, 9)
Facts of the case:
The petitioner sought a writ of mandamus against the Sarpanch for constructing a private temple on panchayat land, alleging misconduct under the Gujarat Panchayat Act, 1993.
Findings of Court:
The court found that the petitioner should have approached the competent authority as per the statutory provisions before filing the PIL, which was dismissed as not maintainable.
Issues: The main issue was whether the PIL was maintainable given the availability of statutory remedies under the Gujarat Panchayat Act, 1993.
Ratio Decidendi: The court ruled that statutory remedies must be exhausted before seeking judicial intervention through a PIL, highlighting the importance of a structured process for complaints against elected officials.
Result: Petition dismissed.
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)
1. The instant petition in the nature of Public Interest Litigation has been filed with a prayer to issue a writ of mandamus commanding the Respondents to take action against the private respondent Nos. 7 to 9 for construction of private temple on the land of Kanpura Village Panchayat, the action of the said Respondents being contrary to the provisions of the Gujarat Panchayat Act , 1993. Further prayer has been made in the writ petition seeking for removal of unauthorized construction of private temple over panchayat land and initiate disciplinary action against the private Respondent No. 7, who is sitting Sarpanch of Kanpura Village and remove him from the post of Sarpanch after following all the procedure laid down under the Gujarat Panchayat Act , 1993. Respondent Nos. 8 and 9 are stated to be close aides of Sarpanch, namely Patel Sanjaybhai Govindbhai, Respondent No. 7.
2. The fact remains that the petitioner herein seeks a writ in the nature of direction commanding the Respondent Authorities to initiate action against the sitting Sarpanch under the provisions of the Gujarat Panchayat Act , 1993.
3. In our considered opinion, for initiation of the statutory proceedings, the petitioner is required to approach the competent authority in accordance with the provisions of Sections 57 and 105 of the Gujarat Panchayat Act , 1993, which provide for action against the sitting Gram Pradhan, who has misconducted himself and removal of any encroachment or obstruction over public sites within the limits of a village.
4. Instead of approaching the statutory authority, the petitioner has filed the instant petition, that too in the nature of Public Interest Litigation, which cannot be entertained for the availability of statutory remedy. The instant Public Interest Litigation is, accordingly, DISMISSED being not maintainable.
5. However, before parting with this order, we may note that on the presentation of the matter, we have asked the learned AGP to bring before us the rules, if any, framed by the State Government regulating the procedure for processing of complaints against the Sarpanch, Upa- Sarpanch, or any member of the Panchayat seeking for removal of such persons, as per Section 57 of the Gujarat Panchayat Act , 1993. It is indicated to us that no such rules have been framed so far. Section 274 of the Gujarat Panchayat Act , 1993 provides for rule making power of the State Government. Sub-Section (1) of Section 274 states that rules are to be framed by the State Government for carrying out the purpose of the Act, 1993. In addition to this general power conferred upon the State Government, Sub-Section (2) provides for specific areas, particularly with respect to which, rules are to be framed.
6. Looking to the language of Section 57, which prescribes for removal of Member of Panchayat, Sarpanch or Upa-Sarpanch found guilty of misconduct and further the provision of Sub-Section (3) of Section 57, which provides remedy to file an appeal to the State Government, we find that it is appropriate that the comprehensive rules prescribing provisions for filing of the complaints against the Member of the Panchayat, Sarpanch or Upa-Sarpanch will have to be formulated and notified by the State Government.
7. We say so for the reason that a complaint against the sitting Gram Pradhan or Sarpanch or Upa- Sarpanch and Member of the Panchayat, who are elected representatives of the Panchayat, cannot be ordinarily or casually entertained. Some kind of accountability is to be fixed upon a person filing complaint upon an elected representative such as Sarpanch, Upa-Sarpanch and Member of the Panchayat on the allegations of misconducting in the discharge of their duties and their elected office, if the complaint is found false and motivated. Similarly, to balance the interest of public, a forum and a procedure is to be provided for entertaining and processing of the complaints. The
