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SCA/13577/2009 5/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 13577 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
===================================
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 ?
===================================
RAMAJI
KHENGARJI THAKOR - Petitioner(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
===================================
Appearance :
MR
DILIP B RANA for Petitioner(s) : 1,
MR. NK RAVAL AGP for
Respondent(s) : 1,
NOTICE SERVED BY DS for Respondent(s) : 1 -
2.
MR HS MUNSHAW for Respondent(s) :
2,
===================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 13/01/2010
ORAL
JUDGMENT
1.
Rule. Shri NK Raval, learned AGP waives service of notice of rule on
be half of the respondent No.1 and Shri HS Munshaw, learned advocate
waives service of notice of rule on behalf of the respondent No. 2.
With the consent of the learned advocates for the parties, the matter
is taken up for final hearing today.
2. By
way of this petition under Articles 226 & 227 of the Constitution
of India, the petitioner has prayed for an appropriate writ,
direction and order quashing and setting aside the impugned order
dated 30.11.2009 passed by the respondent No.1 Appellate Authority in
Appeal No. 65 of 2009 (Annexure A) as well as the order dated
05.06.2009 passed by the District Development Officer, Surendranagr
removing the petitioner as a Sarpanch in exercise of powers under
Section 57(1) of the Gujarat Panchayat Act.
3. The
petitioner was elected as a Sarpanch of Alampura Gram Panchayat in
January, 2007. Petitioner was served with the show cause notice
issued by the District Development Officer, Surendranagar dated
30.1.2009 under Section 57(1) of the Gujarat Panchayat Act and the
petitioner was called upon to show cause as to why he should not be
removed as a Sarpanch. It was alleged against the petitioner that
petitioner has misused his position as a Sarpanch by encroaching upon
the government land by putting iron door on southern side of his
house though the main door of his residence i.e. property assessment
No. 2/86 is on western side. Petitioner replied to the said show
cause notice denying the allegations in the show cause notice by
submitting that the said iron door on the southern side of his
residence is since last 30 years and is put up by his father who died
in the year 2003 and after his death the said house has gone to the
share of his brother Thakor Prabhuji Khengraji. It was submitted that
the said door was put up by his father much prior to the election of
the petitioner as a Sarpanch, which was in the year 2007 only.
Therefore, it was requested to withdraw the show cause notice. That
thereafter, the respondent No. 2 District Development Officer,
Surendranagar passed the order dated 5.6.2009 removing the petitioner
as a Sarpanch under Section 57(1) of the Panchayat Act by holding
that even if government land was encroached by his father and the
door was put up on the government land, as a Sarpanch it was his duty
to remove the same and / or as the petitioner is a heir of his father
who can also be said to be encroachment by his father. Therefore, it
was held by District Development Officer that petitioner as a
Sarpanch has acted not befitting the post of Sarpanch and therefore,
petitioner cannot be continued as a Sarpanch. Being aggrieved and
dissatisfied with the order passed by the District Development
Officer, Surendranagar dated 5.6.2009, the petitioner preferred
Appeal under Section 57(1) of the Act before the State Government and
Additional Development Commissioner by impugned order dated
30.11.2009 dismissed the said appeal confirming the order passed by
the District Development Officer, Surendranagar dated 5.6.2009.
Hence, the petitioner has preferred the present Special Civil
Application under Article 226 & 227 of the Constitution of
India.
4. Shri
Dilip Rana, learned advocate for the petitioner has vehemently
submitted that impugned order passed by the District Development
Officer,, Surendranagar confirmed by the Appellate Authority removing
the petitioner as a Sarpanch is absolutely illegal, most arbitrary
and perverse which deserves to be quashed and set aside. It is
submitted that in the present case admittedly so called encroachment
of only 1.4 ft x 13.5 ft was since last 30 years. It is submitted
that, therefore, the alleged encroachment was not by the petitioner
and / or during his tenure as a Sarpanch and / or after petitioner
become the Sarpanch. It is submitted that for the alleged
encroachment by his father before 30 years i.e. at the time when the
petitioner was minor, petitioner cannot be removed as a Sarpanch
under Section 57(1) of the Act. It is submitted that even as soon as
petitioner was served with the notice, the said alleged encroachment
of door was removed. It is further submitted that even in the facts
and circumstances of the case it cannot be said that petitioner has
been guilty of misconduct of discharge of his duty or of disgraceful
conduct or abuse the power or has made persistent default of
performance of his duty, which warrant the removal of the petitioner
as a Sarpanch. Therefore, in the facts and circumstances of the case,
it is requested to allow the present Special Civil Application.
5. Petition
is opposed by Shri Munshaw, learned advocate for the respondent No.3
District Development Officer, Surendranagar. It is submitted that
petitioner as a Sarpanch of gram panchayat is executive head of the
gram panchayat and is also expected to be a ideal citizen and leader.
It is submitted that under Section 105 of the Gujarat Panchayat Act
gram panchayat has to remove obstruction, encroachment etc. raised on
public land or otherwise and, therefore, as Sarpanch was required to
remove all type of obstruction and encroachment. It is submitted that
TDO Patadi received a complaint dated 28.7.2008 from three residents
of Village Alampura about encroachment made by the petitioner and
thereupon he got the side inspected and made a report to the District
Development Officer, Surendranagar for initiating action against the
petitioner under the provisions of Section 57 of the Act. It is
submitted after following due procedure and after giving an
opportunity to the petitioner, the impugned order has been passed
removing the petitioner as Sarpanch, which has been confirmed by the
State Government. It is submitted that merely because subsequently
the petitioner has removed the said encroachment is no ground to set
aside the impugned order passed by the District Development Officer,
which was considering the facts and position prevailing at the
relevant time. It is submitted that if such is permissible in that
case, every Sarpanch, Upsarpanch would allow the encroachment and /
or would not take any action as required under Section 105 of the
Panchayat Act and after the proceedings are initiated for removal,
they will remove the encroachment. Therefore, it is requested to
dismiss the present Special Civil Application. Shri NK Raval, learned
AGP has tried to support the impugned order passed by the Additional
Development Commissioner, State of Gujarat i.e. Appellate Authority.
6. Heard
the learned advocates for the respective parties. At the outset, it
is required to be noted that and it is not disputed that alleged
encroachment of only 1.4 ft x 13.5 ft was since last 30 years and the
iron door was put up by his father which was in existence since last
30 years. It is also an admitted position that petitioner came to be
elected only in the year 2007. Therefore, the alleged encroachment of
only 1.4 ft x 13.5 ft was since last 30 years of and the said door
was neither put up by the petitioner nor during his tenure as a
Sarpanch nor after the petitioner become the Sarpanch. The father of
the petitioner has died in year 2003. Nothing is on record that
anybody has made a request to remove alleged encroachment and the
petitioner has failed to take any action for removal of alleged
encroachment. Therefore, in the peculiar facts and circumstances it
cannot be said that petitioner has encroached upon the government
land and has misused his position as a Sarpanch. Even considering the
impugned order passed by the District Development Officer,
Surendranagar confirmed by the Appellate Authority, it appears that
petitioner has been removed as a Sarpanch for not taking action under
Section 105 of the Panchayat Act and i.e. by not removing the
encroachment. For the same, said action of removal of Sarpanch is not
warranted, more particularly, when the alleged encroachment of the
door in southern side was since 30 years put up by his father.
Therefore, in the peculiar facts and circumstances of the case, it
cannot be said that the petitioner has been guilty of misconduct in
the discharge of his duty or of any disgraceful conduct or has abused
his power as a Sarpanch or has made persistent default warranting the
action of removal under Section 57 of the Gujarat Panchayat Act. In
the peculiar facts and circumstances the impugned order passed by the
District Development Officer, Surendrangar removing the petitioner as
a Sarpanch, confirmed by the Appellate Authority cannot be sustained
and deserves to be quashed and set aside.
7. In
view of the above and for the reasons stated above, petition
succeeds. The impugned order dated 30.11.2009 passed by the
respondent No.1 Appellate Authority in Appeal No. 65 of 2009
(Annexure A) as well as the order dated 05.06.2009 passed by the
District Development Officer, Surendranagar removing the petitioner
as Sarpanch of Alampura Gram Panchayat are hereby quashed and set
aside. However, it is observed that the impugned orders are set aside
in the peculiar facts and circumstances of the case narrated herein
above and by this it may not be construed that this Court has held
that when any encroachment is made by the Sarpanch and Up-Sarpanch
and / or Sarpanch or Up-Sarpanch as the case may be and has failed to
perform his statutory duty by not removing the encroachment /
obstruction on the government land and subsequently after the
proceedings initiated under Section 57 of the Gujarat Panchayat Act
the same are removed, the same can be pardoned. The present order is
passed in the peculiar facts and circumstances of the case narrated
herein above. Rule is made absolute to the aforesaid extent. No
costs.
(M.R.SHAH,
J.)
kaushik
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