Saiyad Ismail Saiyadmiya vs State Of Gujarat on 8 October, 2018

[Cites 5, Cited by 2]

Gujarat High Court

Saiyad Ismail Saiyadmiya vs State Of Gujarat on 8 October, 2018

Bench: Bela M. Trivedi

          C/SCA/14353/2018                                              ORDER




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 14353 of 2018

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                             SAIYAD ISMAIL SAIYADMIYA
                                      Versus
                                STATE OF GUJARAT
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Appearance:
MR KP CHAMPANERI(5643) for the PETITIONER(s) No. 1,2
for the RESPONDENT(s) No. 1,2,3,4,5
MR TIRTHRAJ PANDYA, AGP for the RESPONDENT(s) No. 1
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 CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI
                           Date : 08/10/2018
                              ORAL ORDER

1. The petitioners have filed the present petition challenging the impugned order dated 30.04.2018 passed by the respondent No. 3 dismissing the appeal filed by the petitioner and confirming the order dated 27.12.2017 passed by the respondent No. 4, exercising the powers under Section 32(2) of The Gujarat Panchayats Act, 1993 (hereinafter referred to as "the said Act").

2. The short facts leading to the present petition are that:

2.1. The petitioners are the husband and wife. They were elected as the members of the Nandasan Gram Panchayat. The respondent no.5 who happened to be the resident of the village had made an application to the respondent No. 4 alleging inter alia that the petitioners had incurred disqualification under the provisions contained in Section 30[1][g] of the said Act, as the contract for uplifting the solid waste was granted to the son of the petitioners by general body of the Panchayat. In view of the said application, the petitioners were served with the notice by the respondent No. 4 calling upon them to explain the charges leveled against them. The petitioners had accordingly filed their reply. However, the respondent Page 1 of 3 C/SCA/14353/2018 ORDER No. 4 vide the impugned order passed on 27.12.2017 disqualified the petitioners as the members of the Nandasan Gram Panchayat, exercising the powers under Section 32(2) of the said Act, holding that the petitioners had misused their position as the members of the Gram Panchayat, as the contract to uplift the solid waste was awarded to their son as per the resolution on 20.02.2017.

2.2. Being aggrieved by the said order, the petitioners had preferred an appeal before respondent no. 3, which appeal also came to be dismissed vide order dated 30.04.2018. It appears that the petitioners had also filed a revision application before the State Government, however the same was not entertained by the respondent No. 2 on the ground of being not maintainable vide order dated 12.06.2018. Hence the petitioners have filed the present petition.

3. It is sought to be submitted by learned Advocate Mr. K P Champaneri appearing for the petitioners that there was nothing on record to show that the petitioners had availed any benefit from the contract work awarded to their son by the Nandasan Gram Panchayat by passing a general resolution, and therefore the petitioners could not be said to have incurred disqualification under Clause (g) of Sub section (2) of Section 30. He also submitted that the respondent No. 4 had exercised the powers under Section 32, disqualifying the petitioners without considering the factual aspects of the matter and therefore the appeal was filed before the respondent No. 3, however the same was also dismissed by the respondent No. 3 without considering the representation of the petitioners in the proper perspective.

4. In order to appreciate the contentions raised by the learned Advocate appearing for the petitioners, it will be appropriate to reproduce the relevant provision contained in the Section 30(1)(g) of Page 2 of 3 C/SCA/14353/2018 ORDER the said Act, which reads as under:

"30.Disqualification (1 ) No person shall be a member of a panchayat or continue as such who

(a) to (f) ***

(g) has directly or indirectly, by himself or his partner, any share or interest in any work done by order of the panchayat, or in any contract with, by or on behalf of, or employment with or under the panchayat; or"

5. Section 32 pertains to the disability from continuing as members of the gram panchayat. It states inter alia that if any member of a panchayat is subject to any disqualification as mentioned in subsection 1 of Section 30 at the time of his election or during the term for which he has been elected, he shall be disabled from continuing to be a member, and his office shall become vacant.

6. So far as facts of the present case are concerned, though it was contended by the learned Advocate appearing for the petitioners that they had not misused their position as the members of the Gram Panchayat had passed the resolution for awarding the contract for uplifting the solid waste to their own son, the said submission could not be accepted. If the contract was awarded to their son, it has been rightly held by the respondent authorities that the petitioners had an interest in the said contract awarded by the Panchayat. The said situation being squarely covered under Section 30(1)(g) of the said Act, the Court does not find any error in the impugned orders passed by the respondent authorities.

7. In that view of the matter, the petition being devoid of merits is dismissed.

(BELA M. TRIVEDI, J) SINDHU NAIR Page 3 of 3

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