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SCA/25888/2007 12/ 12 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 25888 of 2007
For
Approval and Signature:
HONOURABLE
MR.JUSTICE AKIL KURESHI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as 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 ?
=========================================================
MANIBEN
GAGAJI THAKORE - Petitioner(s)
Versus
THE
STATE OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance :
MR
PRAKASH K JANI for Petitioner(s) : 1,
MR JK
SHAH, AGP for Respondent(s) : 1,
MR HS MUNSHAW for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 29/07/2008
ORAL JUDGMENT
1. Rule.
Learned AGP, Shri J.K.Shah, waives service of rule on behalf of
respondent No.1. Learned advocate Shri H.S.Munshaw waives service of
rule on behalf of respondent No.2. With the consent of the parties,
this petition was taken up for final disposal today.
2. The
petitioner has challenged an order dated 30th July, 2007
passed by District Development Officer (D.D.O. for short) as upheld
by an order dated 27th September, 2007 passed by
Additional Development Commissioner.
3. The
petitioner was elected as Sarpanch of Village, Charadu, Tal. Mehsana.
A show cause notice dated 10th April, 2007 came to be
issued making allegations with respect to alleged irregularities
committed by the petitioner regarding motor pump and iron pipes of
the Panchayat’s Tube Well. The petitioner was called upon to show
cause why she should not be removed as Sarpanch. By her reply dated
27th April, 2007, the petitioner denied the charges.
3.1 On
3.7.2007, D.D.O. though found that the charges were proved, observing
that the term of the petitioner as a Sarpanch was over on 14.1.2007
and therefore, no further proceedings under Sub-Section (1) of
Section 57 of the Gujarat Panchayats Act (?Sthe Act?? for short)
(for removal as Sarpanch) were possible, he directed that notice
under Sub-section (2) of Section 57 (for disqualification) be issued
against her.
3.2 Such
a notice was issued on 5.7.2007 calling upon the petitioner to show
cause why action under Sub-section (2) of Section 57 of the Act not
be taken against her. To this show cause notice, petitioner replied
under her letter dated 13.07.2007. Further detailed reply was sent;
also in July, 2007.
3.3 D.D.O.,
however, by his impugned order dated 30th July, 2007,
ordered that in terms of Sub-Section (2) of Section 57 of the Act,
petitioner be disqualified for a period of five years.
3.4 Petitioner
unsuccessfully appealed against the order of the D.D.O. and the
Additional Development Commissioner by his order dated 27th
September, 2007 rejected the appeal. Petitioner is, therefore,
before this Court in the present petition.
4. Appearing
for the petitioner learned advocate, Shri P.K.Jani, pressed the
petition mainly on two grounds.
4.1 Firstly,
it was contended that the petitioner cannot be disqualified under
Sub-Section (2) of Section 57 of the Act without first passing an
order of her removal. It was contended that only after removing the
petitioner as a Sarpanch, the authorities can undertake further steps
for disqualifying her.
4.2 Second
contention though not specifically taken in the petition, was that
any such action under Sub-Section (2) of Section 57 of the Act cannot
be beyond the period of six months after the petitioner having ceased
to hold such office. From the material on record, it was pointed out
that the term of the petitioner as a Sarpanch was over on 14th
January, 2007, the show-cause notice was issued on 5th
July, 2007 and final order under Sub-Section (2) of Section 57 was
passed on 30th July, 2007.
5. On
the other hand learned AGP, Shri J.K.Shah as well as learned
advocate, Shri H.S.Munshaw, submitted that Sub-Section (2) of
Section 57 of the Act empowers the authority to disqualify a
Sarpanch, Upa-Sarpanch, or a member, even after he ceases to hold
such office and his removal is not a precondition to exercise of such
powers.
5.1 It
was also contended that period of limitation of six months prescribed
in proviso to Sub-Section (2) of Section 57 of the Act is for
initiation of the action and not for passing final order of
disqualification.
6. Having
thus heard learned advocates appearing for the parties, I find that
the first contention of learned advocate, Shri P.K.Jani, cannot be
accepted. Section 57 of the Act reads as follows:
Section : 57
(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 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) The competent
authority may, after following the procedure laid down in sub-section
(1) disqualify for a period not exceeding five years any person who
has resigned his office as a member. Sarpanch or Upa-Sarpanch, or
otherwise ceased to hold any such office and has been guilty of
misconduct specified in sub-section (1) or has been incapable of
performing his duties and functions:
Provided that an
action under this sub-section shall be taken within six months from
the date on which the person resigns or ceases to hold any such
office.
(3) Any person
aggrieved by an order of the competent authority under Sub-section on
(1) or (2) may, within a period of thirty days from the date of the
communication of such order, appeal to the Stat Government.
7. From
the above provision, it can be seen that under Sub-Section (1) of
Section 57 of the Act, competent authority has power to remove from
office any member of the Panchayat, Sarpanch or Upa-Sarpanch after
following the procedure laid down therein, if such member, Sarpanch
or Upa-Sarpanch has been guilty of mis-conduct in 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 the Act or has become incapable of performing his duties and
functions. Thus powers under Sub-Section (1) of Section 57 are for
removal of a member, Sarpanch or Upa-Sarpanch of Panchayat under
certain circumstances noted above.
8. On
the other hand, Sub-Section (2) of Section 57 of the Act empowers
the competent authority to disqualify for a period not exceeding five
years any person who has resigned from his office as a member,
Sarpanch or Upa-Sarpanch or otherwise ceased to hold any such office
and has been guilty of misconduct specified in Sub-Section (1) or has
been incapable of performing his duties and functions.
9. Thus,
Sub-Section (1) of Section 57 pertains to removal of member,
Sarpanch or Upa-Sarpanch of a Panchayat whereas Sub-Section (2) of
Section 57 refers to disqualification of any such person. Removal
necessarily would relate to current term of a member, Sarpanch or
Upa-Sarpanch whereas disqualification would affect in future for the
period that may be prescribed in the order passed by the competent
authority.
10. Requirement
of Sub-Section (2) of Section 57 is that the authority has to follow
the procedure laid down in Sub-Section (1) of Section 57 and
thereafter only, such order of disqualification can be passed against
the person who has resigned from his office as a member, Sarpanch or
Upa-Sarpanch or who otherwise has ceased to hold any such office.
Such disqualification can be ordered, if such member is found guilty
of misconduct as specified in Sub-Section (1) of Section 57 or if is
found to be incapable of performing his duties and functions.
11. Nothing
stated in Sub-Section (1) of Section 57 indicates that such
disqualification cannot be ordered without first ordering removal of
a member, Sarpanch or Upa-Sarpanch. In-fact it is specifically
provided that disqualification can be passed with respect to a person
who has resigned from his office or ceased to hold the office.
Obviously, resignation presupposes that there was no removal of such
a member. Even otherwise,
cessation of his term can be through his removal or for any
other reason including upon completion of the term of the office for
which the member may have been elected. It is, therefore, not
possible to hold that action of disqualification under Sub-Section
(2) of Section 57 must in all cases be preceded by an order of
removal under Sub-Section (1) of
Section 57 of the Act. A case of a member, Sarpanch or Upa-Sarpanch
removed by the competent authority would be governed by Section
30(1)(d) of the Act which provides that no person shall be a member
of a Panchayat or continue as such who has been removed from any
office held by him under any Panchayat under any provision of the Act
and a period of five years has not elapsed from the date of such
removal, unless he has been by an order of the State Government
relieved from the disqualification arising out of such removal.
However, where the member ceases to hold office on account of
resignation or for reasons other than his removal, if other
ingredients are satisfied, after following due procedure, it is
always open for competent authority to order his disqualification.
12.
Second contention of learned advocate, Shri P.K.Jani, requires closer
scrutiny. As noted, though this contention has not been taken in the
petition or even before the authorities, the same is based on
admitted facts. Being purely a legal contention, I have examined the
same on the basis of undisputed facts.
12.1 Sub-Section
(2) of Section 57 provides that an action under this Sub-Section
shall be taken within a period of six months from the date on which
the person resigns or ceases to hold such office. Action referred to
herein has to be one of disqualifying the member, Sarpanch or
Upa-Sarpanch as the case may be. Sub-Section (2) of Section 57 refers
to only one action, that of disqualifying the member, Sarpanch or
Upa-Sarpanch. The proviso specifically provides that such action
shall be taken within six months from the date on which such person
resigns or ceases to hold his office. Therefore, in my view no order
under Sub-Section (2) of Section 57 of disqualifying a member,
Sarpanch or Upa-Sarpanch can be passed after six months of such
member resigning or otherwise ceasing to hold his office.
13. As
noted, learned advocates for respondents strenuously urged that it
would be sufficient compliance to the proviso of Sub-Section (2) of
Section 57, if action is initiated by issuance of show cause notice
within the period of six months of time frame provided. Such a
contention cannot be accepted. Proviso to Sub-Section (2) of Section
57, as noted, speaks of action under that sub-section and the
sub-section speaks of only one action i.e. of disqualification of a
member, Sarpanch or Upa-Sarpanch of a Panchayat. Such action is to be
taken within six months of the person resigning or ceasing to hold
office. Initiation of the proceedings of issuance of show cause
notice cannot be equated with the action taken. It is well settled
that penal provisions must be interpreted strictly.
14. In
case of Dilip N.Shroff V/s. Joint Commissioner of Income Tax,
Mumbai and another reported in 2007 (6) SCC 329, the Apex Court
while dealing with Section 271 of the Income Tax Act, 1961 pertaining
to penalty to be imposed on an assessee upon concealment of income,
observed that being a penal provision it must be construed strictly.
In case of Virtual Soft Systems
Ltd. V/s. Commissioner of Income Tax, Delhi I reported in
(2007) 9 SCC 665, also same view was taken. In a case of State of
Kerala and others V/s. Unni and another reported in (2007) 2 SCC
365, the Apex Court stated that ?S A penal statute must receive
strict construction. Only in exceptional cases the principles of
purposive construction shall apply to a penal statute??.
15. The
very purpose of the proviso to Sub-Section (2) of Section 57 is that
an elected member, Sarpanch or Upa-Sarpanch of a Panchayat may not be
held liable for his past action, for his future candidature or that
his subsequent election may not be rendered void, inconsequential and
ineffective, upon an action taken by the authorities after indefinite
period of time. Such provision must be construed strictly. Permitting
the authorities to pass order of disqualification after indefinite
period of time of the member having ceased to hold the office only
upon initiation of the proceedings within six months thereof would
destroy the very purpose for which the proviso is enacted.
16.
While maintaining the powers of the competent authority to remove or
disqualify a member, Sarpanch or Upa-Sarpanch of a Panchayat for
proved misconduct in discharge of his duties or for any disgraceful
conduct, or for abusing his powers etc., sacrosanctity of the
process of election of a member, Sarpanch or Upa-Sarpanch who may
have been elected and re-elected through a democratic process, must
also be preserved. Thus, in my view, proviso to sub-section (2) of
Section 57 cannot be extended through liberal interpretation so as to
permit the authority to pass order of disqualification at any point
of time only upon initiation of the proceedings within six months
from resignation or cessation of office.
17. In
the result, since disqualification of petitioner was passed after
more than six months of her term being over, on this ground, this
petition is required to be allowed. Impugned order dated 30.07.2007
passed by D.D.O. as well as Additional Development Commissioner dated
27.9.2007 are quashed. Petition is disposed of. Rule made absolute
accordingly.
(AKIL
KURESHI, J.)
ashish//
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