Gujarat High Court
Pankajbhai Hirabhai Patel vs State Of Gujarat & 2 on 23 December, 2014
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
C/SCA/12825/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 12825 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
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1 Whether Reporters of Local Papers may be allowed to see Yes
the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ? No
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PANKAJBHAI HIRABHAI PATEL....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
================================================================
Appearance:
MR ND NANAVATY, LEARNED SENIOR ADVOCATE WITH MR MJ MEHTA,
ADVOCATE for the Petitioner(s) No. 1
MR PP BANAJI, LEARNED ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
MS SEJAL K MANDAVIA, ADVOCATE for the Respondent(s) No. 2
MR BA SURTI, ADVOCATE for the Respondent(s) No. 3
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CORAM: HONOURABLE SMT. JUSTICE ABHILASHA
KUMARI
Date : 23 /12/2014
Page 1 of 29
C/SCA/12825/2014 CAV JUDGMENT
CAV JUDGMENT
1. Rule. Mr. P.P.Banaji, learned Assistant Government Pleader, waives service of notice of Rule for respondent No.1, Ms.Sejal K. Mandavia,learned advocate, waives service of notice of Rule for respondent No.2 and Mr.B.A.Surti, learned advocate, waives service of notice of Rule for respondent No.3. On the facts and in the circumstances of the case and with the consent of learned advocates for the respective parties,the petition is being heard and decided finally.
2. The challenge in this petition preferred under Article 226 of the Constitution of India, is to the order dated 30.08.2014, passed by respondent No.1- Additional Development Commissioner, as well as the order dated 30.06.2014, passed by respondent No.2- District Development Officer, District Panchayat, Dariya Mahel, Surat, whereby the petitioner has been removed as the Sarpanch of Gram Panchayat, Kathor, under the provisions of Section 57 (1) of the Gujarat Panchayats Act, 1993 ("the Act" for short). Page 2 of 29 C/SCA/12825/2014 CAV JUDGMENT
3. Briefly stated, the facts giving rise to the present petition are that the petitioner was elected as the Sarpanch of Kathor Gram Panchayat, Taluka Kamrej, District Surat and was performing his duties as such, with effect from 17.01.2012. On 02.07.2012, one Madni Developers gave an application seeking development permission in Block No.500-B-2-3 situated in Village Kathor. On 09.07.2012, the Kathor Gram Panchayat passed Resolution No.161, unanimously, whereby development permission was granted to Madni Developers, with certain conditions. Respondent No.3 (the original complainant) made an application to respondent No.2, contending that the petitioner has wrongly granted the development permission to Madni Developers, therefore, action under the provisions of Section 57(1) of the Act may be initiated against him. Respondent No.2 issued a show-cause notice dated 14.05.2013 to the petitioner on several grounds, calling upon him to explain why action should not be taken against him under the provisions of Sections 57(1), 30(1), 32(1)(b), 55(1) and 59(1) of the Act. The petitioner gave a detailed reply to the show-cause notice on 29.05.2013, giving an explanation regarding all the allegations made against him under the Page 3 of 29 C/SCA/12825/2014 CAV JUDGMENT provisions of law mentioned in the show-cause notice. Ultimately, respondent No.2 passed the impugned order dated 30.06.2014, holding that the petitioner, being the Sarpanch of the Gram Panchayat, ought not to have passed Resolution No.161 granting development permission to Madni Developers, as the said Madni Developers has committed certain breaches, including that of certain conditions of the non-agricultural use permission granted on 11.02.1986. According to respondent No.2, this action of the petitioner constitutes a misuse of his powers as a Sarpanch; therefore, the petitioner was removed from the office of Sarpanch under the provisions of Section 57(1) of the Act. Aggrieved by the order of respondent No.2, the petitioner preferred an appeal before respondent No.1. The appeal came to be rejected by the impugned order dated 30.08.2014. Under the circumstances, the petitioner has approached this Court, challenging both the aforesaid orders.
4. Mr.N.D. Nanavaty, learned Senior Advocate with Mr.M.J. Mehta, learned advocate for the petitioner, has made the following submissions:
Page 4 of 29 C/SCA/12825/2014 CAV JUDGMENT
(1) The show-cause notice issued to the petitioner is vague and not at all precise. It has been issued by invoking several provisions of the Act. The petitioner was at a loss to know under which specific provision action would be taken against him, therefore, he has given a detailed explanation regarding each and every allegation levelled against him. After considering the reply of the petitioner, ultimately, respondent No.2 has invoked the provisions of Section 57(1) of the Act and removed the petitioner as Sarpanch of the Gram Panchayat.
(2) The proceedings are defective from the very inception and the show-cause notice issued by respondent No.2 itself shows a lack of application of mind, as all possible provisions of law under the Act have been mentioned in it.
(3) The impugned order under Section 57(1) of the Act has been passed by respondent No.2 on the sole ground that the Kathor Gram Panchayat passed Resolution No.161 unanimously on 09.07.2012, granting development permission to Madni Developers and the said Madni Developers has committed certain breaches of Page 5 of 29 C/SCA/12825/2014 CAV JUDGMENT conditions of the non-agricultural use permission, among others. Respondent No.2 has lost sight of the fact that the said resolution was passed unanimously by the entire body of the Gram Panchayat,therefore, the petitioner cannot be held to be individually responsible. In any case, the alleged breach of conditions have been made by Madni Developers and not by the petitioner, who cannot be held responsible for the acts of Madni Developers. There are no allegations of wrongful financial gain against the petitioner and nor is it alleged that any action of his has caused financial loss to the Gram Panchayat. Hence, the impugned order of respondent No.2, as confirmed by respondent No.1, deserves to be quashed and set aside, as none of the requirements for the removal of a Sarpanch, as stated in Section 57(1) of the Act, are met with.
(4) Assuming, without admitting, that permission ought not to have been granted to Madni Developers for any reason, it was open to the respondents to get the Resolution of the Gram Panchayat suspended under the provisions of Section 249 of the Act. However, no such action has been taken by the respondents.Page 6 of 29 C/SCA/12825/2014 CAV JUDGMENT
(5) The petitioner has replied to the show-cause notice, stating that he cannot be held responsible for any breach committed by Madni Developers. Before respondent No.1, the petitioner cited a judgment of this Court in Special Civil Application No.6202 of 2001, rendered on 31.07.2002, wherein this very proposition has been expounded. However, respondent No.1 has tried to brush aside the said judgment, without taking it into consideration.
(6) If Madni Developers has committed a breach of any conditions it is for the competent authorities to take action against it. After receiving a communication from respondent No.2 to take action in this regard, the petitioner has already issued a notice to Madni Developers.
(7) In order to attract the provisions of sub-section (1) of Section 57 of the Act, it has to be proved that a Sarpanch, or a Upa-Sarpanch, as the case may be, is guilty of (i) misconduct in the discharge of duty (ii) disgraceful conduct, (iii) has abused his power, (iv) has made a persistent default in the performance of Page 7 of 29 C/SCA/12825/2014 CAV JUDGMENT his duties and function under the Act, (v) has become incapable of performing his duties and functions under this Act. None of the above ingredients are attracted in the present case against the petitioner, as the allegation against him does not pertain to any act done by him in his individual capacity, so as to attract any of the above ingredients of Section 57(1) of the Act.
(8) The petitioner cannot be removed on the ground that a unanimous resolution was passed by the Gram Panchayat. The petitioner is not individually responsible for the same. This position of law has been expounded by this Court in several judgments which have not been taken note of by the respondents.
(9) In support of the above submissions, learned Senior Advocate has relied upon the following judgments.
(1) Kamlaben Rohitbhai Patel Vs. Additional Development Commissioner reported in 2000(2) GLR 1174.Page 8 of 29 C/SCA/12825/2014 CAV JUDGMENT
(2) Laladhar Pragji and Ors. Vs. State of Gujarat and Ors. reported in 1996(2) GLR 2.
(3) Udaysinh Shankersinh Zala Vs. S.D. Vadera, Additional Development Commissioner and Ors.
reported in 1996(2) GLR 349 (4) Judgment in Special Civil Application No.6202 of 2001 decided on 31.07.2002.
(5) Dipakbhai Mohanbhai Patel Vs. A. S. Patel or His Successor in the Office and ors. reported in 2009(3) GLR 2167 On the strength of the above submissions, it is prayed on behalf of the petitioner that the impugned orders passed by respondents Nos.1 and 2, be quashed and set aside.
5. Mr.P.P. Banaji, learned Assistant Government Pleader, submits that he would be adopting the arguments advanced by respondent No.2.
6. Ms.Sejal K. Mandavia, learned advocate for Page 9 of 29 C/SCA/12825/2014 CAV JUDGMENT respondent No.2, has submitted that it is clear from the show-cause notice that several irregularities were committed by the petitioner under all the Sections mentioned in the show-cause notice. The petitioner has replied to the show-cause notice and after taking his reply into consideration, an order has rightly been passed under Section 57(1) of the Act, removing him from the office of Sarpanch.
(1) That the petitioner has not taken care while granting permission to Madni Developers. Before granting the said permission, the petitioner did not obtain the opinion of different authorities. By not doing so, the petitioner has not discharged his duties as a Sarpanch properly, therefore, he is not competent to continue as such.
(2) That the petitioner is ultimately responsible for the resolution passed by the Gram Panchayat as he is the head of the Panchayat and it was his duty to ensure that the resolution is not passed. (3) Respondent No.2 has correctly exercised the discretionary powers vested in him under Section 57(1) of the Act by removing the petitioner, after Page 10 of 29 C/SCA/12825/2014 CAV JUDGMENT granting him adequate opportunity of hearing; therefore, this Court may not interfere with the impugned order.
(4) Learned advocate for respondent No.2 has relied upon a judgment of this Court in the case of Ganpat Mohanbhai Vasava Vs. Additional Development Commissioner, reported in 2008(2) GLH 342.
7. Mr.B.A. Surti, learned advocate for respondent No.3 (the complainant) has submitted that the contention of the petitioner that the resolution has been passed by the Committee and he is not responsible for it, is incorrect. After the passing of the resolution, respondent No.2 has informed the petitioner to take further steps to stop construction, which have not been taken by the petitioner. (1) There are serious allegations against the petitioner in the show-cause notice and the interest of the public at large would suffer if the petitioner is permitted to remain on his post.
(2) That respondent No.2 has considered each and every aspect of the matter and has rightly come to the Page 11 of 29 C/SCA/12825/2014 CAV JUDGMENT conclusion that there is misuse of power by the petitioner. The power of removal under Section 57(1) of the Act has, therefore, rightly been exercised by respondent No.2.
(3) Respondent No.1, being the Appellate Authority has rightly confirmed the order of respondent No.2. There are concurrent findings against the petitioner, hence, the petition is required to be dismissed in limine.
(4) In support of the above submissions, reliance has been placed on the following judgments.
(i) Bathutmal Raichand Oswal Vs. Laxmibai R. Tarta, reported in (1975) 1 SCC 858
(ii) Mohmmad Yusuf Vs. Faij Mohmmad, reported in 2009(3) SCC 513
8. This Court has heard learned counsel for the respective parties and accorded thoughtful consideration to the material on record and the submissions advanced at the Bar.
Page 12 of 29 C/SCA/12825/2014 CAV JUDGMENT
9. A perusal of the show-cause notice dated 14.05.2013, issued by respondent No.2, reveals that the said notice has been issued stating several allegations against the petitioner, under all possible provisions of the Act, including removal, disqualification and suspension. By way of the show- cause notice, respondent No.2 has called upon the petitioner to explain why action should not be taken against him under Sections 57(1), 30(1), 32(1)(b), 55(1) and 59(1) of the Act. After considering the detailed reply submitted by the petitioner to the said show-cause notice, respondent No.2 has passed the impugned order dated 30.06.2014, under the provisions of Section 57(1) of the Act, removing the petitioner from the office of Sarpanch, on the sole ground that a resolution of the Gram Panchayat has been passed granting development permission to Madni Developers, who has committed breach of certain permission granted by the Competent Authorities. The conclusion arrived at by respondent No.2 while passing the said order, is that the passing of the said resolution by the Gram Panchayat amounts to misuse of power and position by the petitioner,Sarpanch. Respondent No.1, while Page 13 of 29 C/SCA/12825/2014 CAV JUDGMENT confirming the order passed by respondent NO.2, vide his order dated 30.08.2014, has taken the same stand.
10. The question that arises for determination by this Court is,therefore, whether the passing of a unanimous resolution by the Gram Panchayat would attract the provisions of Section 57(1) of the Act against the petitioner, individually, as the Sarpanch,and whether he can be removed on this ground for allegedly misusing his powers as such.
11. In order to answer this question, it would be pertinent to refer to the relevant provisions of law. Section 57(1) of the Act lays down the grounds on which the Sarpanch, or an Upa-sarpanch, as the case may be, can be removed from office. The said provision is reproduced hereinbelow:
"57. Removal from office - (1) The competent authority may remove from office any member of the Panchayat, the Sarpanch or, as the case may be, the Upa-Sarpanch, thereof, after giving him an opportunity of being heard and giving due notice in that behalf to the panchayat and after such inquiry as it deems necessary, if such Page 14 of 29 C/SCA/12825/2014 CAV JUDGMENT member, Sarpanch or, as the case may be, Upa- Sarpanch has been guilty of misconduct in the discharge of his duties or of any disgraceful conduct or abuses his powers or makes persistent default in the performance of his duties and functions under this Act or has become incapable of performing his duties and functions under this Act. The Sarpanch or, as the case may be, the Upa-Sarpanch, so removed may at the discretion of the competent authority also be removed from the membership of the panchayat."
(2) *** **** **** (3) *** **** ***"
12. The allegation against the petitioner is that he has misused, or abused, his power as Sarpanch, while passing the above-mentioned resolution by the Gram Panchayat. Whether the power of removal under Section 57(1) of the Act would be attracted and whether the petitioner, alone, can be held responsible for the passing of a unanimous resolution by the Gram Panchayat, are issues that are no longer res integra. This Court in Kamlaben Rohitbhai Patel Vs. Additional Development Commissioner (supra) has held as below:
"6. The nature of the allegations read Page 15 of 29 C/SCA/12825/2014 CAV JUDGMENT with the replies as have been narrated hereinabove would show that all these allegations are in the nature of some financial irregularities and the same appear to have been explained by the petitioner. More so, there is no allegation whatsoever against the petitioner in person. There is no allegation against the petitioner that she had pocketed any money to her own advantage or that any loss was caused to the Panchayat or that the public interest has been made to suffer. The allegations show that the objection is that procedure has not been followed while executing the development projects and for that purpose in the opinion of this Court the petitioner cannot be held to be responsible for accounting procedure and the same stand fully explained by the replies as have been given. The guilt or misconduct of the Sarpanch in discharge of duties or any disgraceful conduct or abuse of power or making persistent default in performance of duties and functions under the Act etc. has to do with a related blemish on the part of the person concerned and not in the matter of the accounting procedure with regard to the budgets etc. in different development projects undertaken by the Panchayat for the welfare. It is not as if this Court is considering as to whether the allegations are proved or not, but this Court is concerned only with the question as to what is the nature of the Page 16 of 29 C/SCA/12825/2014 CAV JUDGMENT allegation which can be said to be relevant for the purpose of removal of an elected Sarpanch on the grounds set out in Section 57(1) of the Act. If the allegations as set out against the petitioner in the instant case are taken to be the allegations relevant to the grounds of misconduct etc. as set out in Section 57(1), I think no elected office bearer or any functionary will be free from such objections of no consequence against the person concerned. It has to do with the discharge of the functions by the Panchayat, i.e. body as a whole on the basis of the resolutions passed by the Panchayat and no single individual can be held to be liable for such allegations so as to make him or her to suffer removal from an elected office. Unless and until there is something personal against the elected office bearer sought to be removed, Section 57(1) of the Act cannot be invoked. On the basis of the accounting procedure or irregularities therein, if any, no single elected office bearer of the Panchayat can be held to be liable so as to carve out a case of misconduct. If such allegations are taken to be the allegations for the purpose of Section 57(1) of the Act, then no elected member of the Panchayat who has participated in such meetings, shall escape the consequences as have been made to be suffered by the petitioner. In the opinion of this Court, for the purpose of removing an elected office bearer, there has Page 17 of 29 C/SCA/12825/2014 CAV JUDGMENT to be concrete and credible material against him in person which must be germane to the grounds of misconduct etc. as mentioned in Section 57(1) of the Act and therefore, I find that in the instant case, first of all, the show cause notice itself was wholly misconceived. The author of the show cause notice failed to appreciate the real orientation of Section 57(1) of the Act and the show cause notice itself was wholly disoriented.
7. In the facts of the present case even if all the allegations are taken to be true on their face value, they at the most would suggest a case of supervisory negligence. In the opinion of this Court, it can't be put at par with misconduct or a disgraceful conduct or an abuse of power or a default in performance as envisaged by Sec.57(1) of the Act.
*** *** ****
In Udaysinh Shankarsinh Zala v. S.D.
Vadara and ors., reported in 1995 (2) Gujarat
Current Decisions, p.386, this Court had taken the view that removal of Sarpanch for alleged illegal levy of toll was erroneous in as much as levy of toll was authorised by Panchayat and such levy of toll was made by a collective decision of Panchayat and not by Sarpanch alone and removal of Sarpanch was accordingly held to be illegal.Page 18 of 29 C/SCA/12825/2014 CAV JUDGMENT
The case of Laladhar Pragji and ors. v. State of Gujarat and ors., reported in 1995 (2) Gujarat Current Decisions, p.686 was not a case of removal but a case of recovery of loss allegedly caused due to failure on the part of former Sarpanch and Upa-Sarpanch to impose house tax. The Court held that inaction or failure was of the Panchayat as a whole and not of any individual member."
(emphasis supplied)
13. In Laladhar Pragji and Ors. Vs. State of Gujarat and Ors (supra) this Court held as below:
"6. *** **** **** **** A Gram Panchayat has to exercise such powers, perform such functions and duties and has such responsibility and authority as are provided by or under the said Act or any other law for the time being in force subject to the control of the State Government and the competent authority, as provided by Sec. 8(4) of the said Act. Thus, the duty which is cast upon a Gram Panchayat under Sec. 178(1A) making it compulsory for the Panchayat to levy a tax on buildings and lands is not on any individual member of the Panchayat but on the Panchayat as a whole which takes a collective decision at its meeting." (emphasis supplied)
14. In Udaysinh Shankersinh Zala Vs. S.D. Vadera Additional Development Commissioner and Ors (supra), Page 19 of 29 C/SCA/12825/2014 CAV JUDGMENT this Court held as under:
"3. **** ***** ****** ***** Rule 144 of the said Rules read with the Schedule clearly authorises the Gram Panchayat to impose the toll at the maximum rate prescribed as was sought to be done by the resolution dated 20-9-1990. Apart from this aspect of the matter,it is clear from the record that the decision to impose toll was taken collectively by the Panchayat and it cannot be said to be an act of the Sarpanch. Such collective decisions of the Panchayat can never be described as a misconduct on the part of the Sarpanch or an act amounting to abuse of position as a Sarpanch."
(emphasis supplied)
15. In the judgment of this Court dated 31.07.2002, rendered in Special Civil Application No.6202 of 2001, this Court has taken the same view as in the case of Kamlaben Rohitbhai Patel Vs. Additional Development Commissioner by holding as below:
"8. Apart from the above, it is also come on record that the decision of demolition of chora and the utilisation of the old bricks are not taken by the petitioner in his individual capacity as the Sarpanch of the Gram Panchayat. It is on account of the resolution of the General Body of the Gram Panchayat the Page 20 of 29 C/SCA/12825/2014 CAV JUDGMENT action is taken and the Sarpanch being the executive head of the Gram Panchayat has implemented the said resolution. Therefore, when the decision is taken by the Sarpanch on account of the resolution passed by the Gram Panchayat, it cannot be said that the Sarpanch is only the individual responsible or in any case it cannot be said that the Sarpanch has committed any misconduct, which would attract power of removal under Section 57 of the Act. In my view, the said aspect is covered by the decisions of this Court in the case of "Laladhar Pragji & Ors. v. State of Gujarat and Ors.", reported in 1996(2) GLR, 2 and in the case of "Udaysinh Shankersinh Zala v.
S.D. Vadera Additional Development
Commissioner and Ors.", reported in 1996(2) GLR,
349. Therefore, since the issue is covered by
the aforesaid judgment, I do not find it
necessary to discuss the said aspect, more
particularly when there is no dispute that the action of the petitioner is pursuant to the decision of the Gram Panchayat."
(emphasis supplied)
16. It is clear from the order passed by respondent No.1 that the above judgment has been cited by the petitioner before him, but has not been taken into consideration. On the contrary, respondent No.1 has tried to distinguish the said judgment by stating that Page 21 of 29 C/SCA/12825/2014 CAV JUDGMENT the petitioner,being the Sarpanch, is the executive head of the Gram Panchayat and he ought to have taken the Rules and Regulations into consideration, before the Resolution granting development permission to Madni Developers was passed. From the material on record it transpires that the sole allegation against the petitioner is that the Gram Panchayat has passed a unanimous Resolution granting development permission to Madni Developers. There is no allegation against the petitioner to the effect that any individual act of his has resulted in financial loss to the Gram Panchayat or wrongful financial gain to him. The Resolution has been passed unanimously by the Gram Panchayat and if the respondents were of the view that the Resolution cannot be permitted to stand, for any reason whatsoever,it was open to them to take action to get it suspended, under Section 249 of the Act. The passing of the Resolution by the entire body of the Panchayat cannot be said to be misconduct, or abuse of power, by the petitioner,individually. It is not the individual act of the petitioner alone but a collective decision of the entire body of elected members of the Gram Panchayat. The ingredients of Section 57(1), therefore, are clearly not attracted in Page 22 of 29 C/SCA/12825/2014 CAV JUDGMENT the present case. Misconduct, or abuse of power, would relate to an act done by a Sarpanch in his individual capacity, and would not cover a resolution, passed unanimously by the Gram Panchayat, for which the Sarpanch, alone, is not responsible. Moreover,the passing of a resolution, in itself, is not an illegal act. The resolution can be set aside in case it is found to be offensive, in any manner.
17. The petitioner is an elected representative. The seriousness of the consequences of removal under Section 57(1) of the Act warrant that the power vested in the competent authority, in this case respondent No.2, ought to be exercised cautiously and in a circumspect manner, as removing a duly elected Sarpanch from office would entail serious civil consequences. In Sharda Kailash Mittal V. State of M.P. reported in AIR 2010 SC 3450, the Supreme Court has held as below:
"18. For taking action under Section 41-A for removal of President, Vice-President or Chairman of any Committee, power is conferred on the State Government with no provision of any appeal. The action of removal casts a serious stigma on the personal and public life of the concerned office Page 23 of 29 C/SCA/12825/2014 CAV JUDGMENT bearer and may result in his/her disqualification to hold such office for the next term. The exercise of power, therefore, has serious civil consequences on the status of an office bearer. There are no sufficient guidelines in the provisions of Section 41-A as to the manner in which the power has to be exercised, except that it requires that reasonable opportunity of hearing has to be afforded to the office bearer proceeded against. Keeping in view the nature of the power and the consequences that flows on its exercise it has to be held that such power can be invoked by the State Government only for very strong and weighty reason. Such a power is not to be exercised for minor irregularities in discharge of duties by the holder of the elected post. The provision has to be construed in strict manner because the holder of office occupies it by election and he/she is deprived of the office by an executive order in which the electorate has no chance of participation."
(emphasis supplied)
18. In the present case, this Court finds that respondent No.2 has invoked the power under Section 57(1) of the Act on grounds that are not germane to the said provision of law. Respondent No.1, in appeal has mechanically upheld the order passed by respondent No.2, without taking into consideration even the Page 24 of 29 C/SCA/12825/2014 CAV JUDGMENT judgment of this Court, cited on behalf of the petitioner.
19. Ms. Sejal K. Mandavia, learned advocate for respondent No.2 has relied upon a judgment of this Court in the case of Ganpat Mohanbhai Vasava Vs. Additional Development Commissioner (supra). Going through the entire judgment, this Court is unable to comprehend how this judgment would be relevant in the present case, as it has been rendered on the point whether a complainant is a "person aggrieved" within the meaning of Section 57(3) of the Act. Learned advocate for respondent No.2 has relied upon the first head-note of the judgment which reads as below:
"(A) Gujarat Panchayats Act, 1993- Section 57(1)- Proceedings for removal of Sarpanch or Upa-sarpanch from the office - Discretion lies solely with Statutory Authority- Court or any other person cannot give any direction thereof."
20. On the basis of the above, an argument is put forth that discretion to invoke the power under Section 57(1) of the Act lies with respondent No.2 and it has been exercised in accordance with law.
21. In the view of this Court, the judgment has been misinterpreted and wrongly applied by the learned Page 25 of 29 C/SCA/12825/2014 CAV JUDGMENT advocate for respondent No.2 in the present case, even though it is not at all applicable.
22. It is evident to this Court from the material on record, that respondent No.2 has not exercised the discretion vested in him in accordance with law, as the petitioner has been removed from the office of Sarpanch without there being any material on record to indicate that he has abused his position as such. The ingredients of Section 57(1) of the Act are not at all attracted, in the present case. On the contrary, respondent No.2 has exercised the power of removal in a casual manner, on flimsy and frivolous grounds. The other allegations (apart from Section 57(1) of the Act) in the show-cause notice have not resulted in the impugned order. However, the manner in which the show-cause notice has been framed does indicate a certain lack of application of mind, and an attempt to rope in the petitioner for all perceived misdemeanors, under all possible provisions of the statute, that may result in his removal, disqualification or suspension. Ultimately, action has been taken against the petitioner only under Section 57(1) of the Act. This action is found to be unjustified and Page 26 of 29 C/SCA/12825/2014 CAV JUDGMENT unsustainable in law.
23. Learned advocate for respondent No.3 has placed reliance upon a judgment of the Supreme Court in Bathutmal Raichand Oswal Vs. Laxmibai R. Tarta (supra), which delineates the powers of the High Court under Article 227 of the Constitution of India and holds that the High Court cannot, under the guise of exercise of jurisdiction under Article 227, convert itself into a court of appeal when the legislature has not conferred a right of appeal and made the decision of the subordinate Court or tribunal final on facts.
24. The above proposition of law cannot be disputed. However, it is not applicable to the facts of the present case. This Court is not rendering any findings of fact, but is exercising power under Article 226 of the Constitution of India, in order to ascertain whether the impugned orders of respondents Nos.1 and 2 have been passed in accordance with law, or not.
25. The second judgment cited on behalf of respondent No.3 is in the case of Mohmmad Yusuf Vs. Faij Mohmmad (supra) wherein the Supreme Court has held as below:
"13. As indicated hereinbefore, the High Court Page 27 of 29 C/SCA/12825/2014 CAV JUDGMENT allowed the writ petition and thereby set aside the orders passed by the trial court as also the Revisional Court without assigning any reason therefor. The jurisdiction of the High Court under Articles 226 and 227 of the Constitution of India is limited. It could have set aside the orders passed by the learned trial court and the Revisional Court only on limited ground, namely, illegality, irrationality and procedural impropriety. The High Court did not arrive at a finding that there had been a substantial failure of justice or the orders passed by the trial court as also by the Revisional Court contained error apparent on the face of the record warranting interference by a superior court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India."
26. This Court does not dispute the above principles of law enunciated by the Supreme Court, on the facts of the case before it. However, the above principles would not be applicable to the present case.
27. As held earlier, in the present case there has been a substantial failure of justice on the part of respondents Nos.1 and 2 while passing the impugned orders, which are not in consonance with the requirements of Section 57(1) of the Act.
28. The cumulative effect of the above discussion is Page 28 of 29 C/SCA/12825/2014 CAV JUDGMENT that, this Court is of the considered view that both the impugned orders deserve to be quashed and set aside. Resultantly, the order dated 30.06.2014, passed by respondent No.2-District Development Officer, and the order dated 30.08.2014, passed by respondent No.1- Additional Development Commissioner, are hereby quashed and set aside. The petitioner shall be re- instated as the Sarpanch of Kathor Gram Panchayat, forthwith.
29. The petition is allowed. Rule is made absolute, accordingly. There shall be no orders as to costs.
(SMT. ABHILASHA KUMARI, J.)
ARG
Mr.Kunal Shah, learned advocate for
Mr.B.A.Surti,learned advocate for respondent No.3
prays that this judgment may be stayed for a period of three weeks. The prayer is declined.
Direct service is permitted.
(SMT. ABHILASHA KUMARI, J.) Page 29 of 29