SCA/7840/2008 5/ 5 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 7840 of 2008 ========================================================= DHANSUKHBHAI JAGMALBHAI - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MR SATYEN B RAWAL for Petitioner(s) : 1, MR SATYAM CHHAYA, AGP for Respondent(s) : 1, NOTICE SERVED for Respondent(s) : 1, MR HS MUNSHAW for Respondent(s) : 2 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 09/07/2008 ORAL ORDER
The
petitioner in the present petition has challenged an order dated
4.4.2008 passed by TDO, Lakhtar taluka. By the impugned order, the
petitioner came to be removed from the post of Sarpanch of village
Jamar. The petitioner has also challenged order dated 14.5.2008
passed by DDO, Surendranagar upholding the order passed by the TDO.
It
is not in dispute that the petitioner is an elected Sarpanch of
village Jamar. He was elected on 20.1.2007. At that time, the
petitioner had only two children. It was also not in dispute that
third child was born to the wife of the petitioner on 7.8.2007. In
view of the amended provisions of Section 30 of the Gujarat
Panchayats Act(ýSthe Actýý for short), TDO was of the opinion that
petitioner had, by virtue of birth of third child, incurred
disqualification. A show cause notice was therefore, issued to him
on 4.3.2008 calling upon him why he should not be removed from the
position of Sarpanch. The petitioner opposed the notice. TDO
however, by his impugned order dated 4.4.2008 ordered his removal.
As noted, his appeal came to be dismissed by DDO by order dated
14.5.2008.
In
view of the undisputed fact that the petitioner has three children,
his removal pursuant to amended provision of Section 30 of the Act
cannot be found fault with. Section 30 of the Act provides for
disqualification as per Gujarat Local Authorities Laws(Amendment)
Act, 2005. Clause (m) of Sub-section(1) of Section 30 has been added
in following terms :
ýS4.
Amendment of section 30 of Guj. 18 of 1993. – In the Gujarat
Panchayats Act, 1993 (Guj.18 of 1993), in Section 30, in
sub-section(1), after clause(l), the following clause (m) shall be
inserted, namely,
ýS(m)
has more than two children:
Provided
that a person having more than two children on the date of
commencement of the Gujarat Local Authorities Laws(Amendment) Act,
2005(Guj. 17 of 2005) (hereinafter in this clause referred to as
ýSthe date of such commencementýý), shall not be disqualified
under this clause so long as the number of children he had on the
date of such commencement does not increase:
Provided
further that a child or more than one child born in a single
delivery within the period of one year from the date of such
commencement shall not be taken into consideration for the purpose
of disqualification under this clause.
Explanation.-
For the purpose of this clause,-
(i)
where a couple has only one child on or after the date of such
commencement any number of children born out of single subsequent
delivery shall be deemed to be one entity;
(ii)
‘child’ does not include an adopted child or children.ýý
It
can thus be seen that any person who has more than two children
would be disqualified to hold the post of Sarpanch. Further proviso
to the said amendment of Section 4 of the Amending Act also provides
for a cool period of only one year from the date of commencement of
Gujarat Local Authorities Laws(Amendment) Act, 2005. Admittedly, the
third child was born a year after the said commencement.
Learned
advocate for the petitioner however, strenuously urged that
initiation of the proceedings were beyond the period of limitation
prescribed. He relied on provisions contained in Section 57 of the
Act and urged that as per provision of Sub-section(2) of Section 57
of the Act, no action of disqualification can be initiated after six
months of incurring of such disqualification.
Quite
apart from my inability to agree with the suggestion of the learned
counsel regarding interpretation of Sub-section(2) of Section 57 of
the Act, which question need not be gone into in the present
petition, I am of the opinion that Section 57 has no application in
the present case.
Sub-Section(1)
of Section 57 pertains to removal of Sarpanch on account of several
reasons such as misconduct or disgraceful conduct or abuse of the
power or persistent default in performance of the duties.
Sub-section(2) of the Act pertains to disqualification by the
Competent Authority after following procedure laid down under
Sub-section(1) of Section 57.
In
the present case, as per Section 30 of the Act, the petitioner has
been rendered disqualified to hold any elected post of Sarpanch on
account of newly added clause(m) of Sub-section(1) of Section 30. As
per Section 32 of the Act, if any member of Panchayat incurs
disqualification during the term for which he was elected, he is
rendered disabled from continuing to be a member. It is under this
provision that TDO ordered his removal.
I
do not find that action was beyond the period of limitation.
In
the result, I see no merits in the petition. The petition is
dismissed. Notice is discharged.
(Akil
Kureshi,J.)
(raghu)