JUDGMENT
R.K. Abichandani, J.
1. The petitioner who was elected of a Sarpanch of Demai Gram Panchayat in July, 1989 has challenged the orders passed under Sections 49(1) and 49(3) removing him from the office of Sarpanch on the ground of the alleged misconduct.
A show cause notice was issued on the petitioner on 9th May, 1991, a copy of which is at Annexure “J” to the petition under Section 49(1) of the Act on seven charges mentioned therein which were levelled on the footing that though the Panchayat had no power to levy toll it had passed a resolution initially on 29th March, 1990 being resolution No. 14, to levy toll at the rate of Rs. 21- and thereafter had passed another resolution No. 20(1) dated 28th May, 1990 for levying toll with effect from 1-10-1990 on animals carrying burden at the rate of 30 paise per day and thereafter again by resolution No. 4-2 dated 20th September, 1990 the Panchayat resolved to give contract for collection of the toll so imposed pursuant to which Ijara was given and therefore, petitioner had committed misconduct under Section 49(1) of the Act. By an order dated 22nd October, i 992 passed by the District Development Officer under Section 49(1) of the said Act, it was held that there was no provision for imposing toll tax under Section 178 of the Gujarat Municipalities Act, 1961 and there was also no such provision in Rules 142 to 146 of the Gujarat Gram and Nagar Panchayats Taxes and Fees Rules, 1964 and therefore, the levy of the toll was unauthorised. On this finding it was inferred that the Sarpanch had committed misconduct inasmuch as he had abused his position as a Sarpanch. This order came to be confirmed by the Additional Development Commissioner exercising appellate powers under Section 49(3) Of the said Act. Even the Additional Development Commissioner found that the resolutions dated 29th March, 1990, 28th May, 1990, 20th September, 1990 were illegal and that the Taluka Development Officer had by his order dated 13th February, 1991 suspended the operation of the resolutions of the Panchayat dated 28th May, 1990 and 20th September, 1990 under Section 294 of the said Act.
2. Admittedly, the Panchayat had passed resolutions imposing the levy of toll on animals carrying burden. A copy of the resolution dated 29th March, 1990 which is at Annexure “C” shows that earlier it was resolved to charge toll at the rate of Rs. 2/- and objections were invited against that proposal from the public. On 24th May, 1990, the District Development Officer by letter at Annexure “D” to the petition had written to the Panchayat that there was no provision in Section 178 of the said Act for imposing tax on vehicles passing through the Panchayat area but the Panchayat could within the limits of Rule 144 decide to impose taxes according to the Schedule, at the “Toll Naka”. On 28th May, 1990 the Panchayat by its resolution No. 20(1) resolved under the provisions of Rule 144 of the said Rules proposing levy of toll at the rate of 30 paise per day which rate is prescribed in the Schedule to the said Rules. The Panchayat resolved to call for objections against the proposed levy. Accordingly, a notice was issued on 18th June, 1990 in a local daily “Jansatta”, a copy of which is at Annexure “F” to the petition. Thereafter, on 20th September, 1990 the Panchayat passed a resolution No. 44 finally imposing toll from 1-10-1990 on each loaded or unloaded vehicle drawn by two or more animals at the rate of 30 paise per day which is the prescribed maximum under the Schedule, prescribed under Rule 144 of the said Rules, By the same resolution the Panchayat authorised the Sarpanch to give a private contract for collection of octroi fixing the upset price at Rs. 21,600/- by referring to the provisions of Section 180 of the said Act under which it could give such contract. The provisions of Section 178(1)(v-a) clearly empower a Gram Panchayat to levy a toll on vehicles and animals used for riding, draught or burden entering the Gram Panchayat which are not liable to taxation under Clause (v) of Sub-section (1). Thus, eventhough there is a clear provision empowering the Gram Panchayat to impose a toll on animals used for carrying burden as also on vehicles drawn by animals when they enter the Gram, it is surprising that the District Development Officer and the appellate authority should have held that there is no provision in Section 178 empowering the Gram Panchayat to impose such toll. Rule 144 of the said Rules read with the Schedule clearly authorises the Cram 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. Even Ijara was authorised to be given by the Panchayat fixing the upset price. The fact, however, remains that the resolution of the Panchayat was suspended by the Taluka Development Officer as a result of which the toll imposed by the Panchayat could not be collected through the Ijardar, On the basis of the resolutions which were passed by the Panchayat to levy the toll, it can never be inferred that the Sarpanch was guilty of misconduct in the discharge of duties or of any disgraceful conduct or that he had abused his powers as Sarpanch. There was, therefore, no occasion for the competent authority to invoke the provisions of Section 49(1) of the said Act against the Sarpanch on these allegations. The impugned orders cannot, therefore, be sustained and are hereby set aside. Rule is made absolute accordingly with no order as to costs.