Surendrabhai vs State
22. The
submission made by the learned Additional Public Prosecutor, based on
the decision of the Supreme Court in M.
Gopalkrishnan v. State
(supra), to the effect that the petitioner though having been
appointed by the State Government cannot be removed by the State
Government, is required to be stated only to be rejected. Section 5
of the Gujarat Town Planning and Urban Development Act, 1976 clearly
provides for constitution of an area development authority by the
State Government, consisting of the Chairman, Chief Town Planner and
other members as stated in sub-section (3) thereof. Sub-section (6)
thereof provides that if the State Government is of the opinion that
any member of an area development authority is guilty of misconduct
in the discharge of his duties or is incompetent or has become
incapable of performing his duties as such member or should for any
other good and sufficient reasons be removed, the State Government
may, after giving him an opportunity to be heard, remove him from
office. Thus, the statute itself provides for appointment of the
Chairman who is a member of the area development authority by the
State Government as well as for removal by the State Government.
Moreover, section 116 of the said Act specifically lays down that
every member and every officer and other
employees of the appropriate authority shall be deemed to be a public
servant within the meaning of section 21 of the Indian Penal Code.
Appropriate authority is defined under section 2(iii) to mean in
relation to a development area, an area development authority or an
urban development authority as the case may be. Section 5 provides
for constitution of area development authority and for appointment of
members thereof. Under the circumstances, the Chairman of the
Ahmedabad Urban Development Authority would clearly fall within the
ambit of section 116 of the Gujarat Town Planning and Urban
Development Act and would be deemed to be a public servant within the
meaning of section 21 of the Indian Penal Code. In view of
sub-section (6) of section 5, he would be a public servant who cannot
be removed from his office except by or with the sanction of the
Government. In the above referred decision, the Supreme Court on
facts had come to the conclusion that though the appellant therein
was a public servant as envisaged under section 21 IPC, he could not
claim to be a "public servant" not removable from his
office, save by or with the sanction of the Government. The
petitioner herein, satisfies both the requirements. Under the
circumstances, reliance placed upon the said decision of the Supreme
Court is misconceived and does not carry the case of the respondents
any further.