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SCA/14842/2011 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 14842 of 2011
With
CIVIL
APPLICATION No. 10520 of 2011
In
SPECIAL
CIVIL APPLICATION No. 14842 of 2011
=========================================================
MAHENDRA
NARANBHAI BAROT - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MR
BY MANKAD for
Petitioner(s) : 1,MRSHIVROOPGAEKWAD for Petitioner(s) : 1,MR NARENDRA
GAEKWAD for Petitioner(s) : 1,
MS ARCHANA C. RAVAL, ASST.
GOVERNMENT PLEADER for Respondent(s) : 1,
None for Respondent(s) :
2 - 3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 19/10/2011
ORAL
ORDER
1. On
10.10.2011, the Court has passed the following order:
“Shri
B.P.Munshi, learned advocate appearing for the petitioner in the main
petition as well as in Civil Application submits that the petitioner
is in fact desirous to withdrawing this petition and he would be
withdrawing. However, if the matter is adjourned for a period of one
week, in the mean time the petitioner is attempting to persuade the
concerned authorities so that he can avoid stigma on account of
removal from the office.
The
arguments are over. This request was made when the Court was not
inclined to entertain the petition. At the request of Shri Munishi,
the matter is kept on 17.10.2011.”
1.1 Today, it was
specifically mentioned on behalf of State for taking up the matter,
as it was originally adjourned only for withdrawal of the same, but
when the matter is called out, none is present for the petitioner.
The Court is of the view that the matter is heard fully and
therefore, it is required to be disposed of properly.
2. The petitioner, by
way of this petition under Article 226 and also under Article 227 of
the Constitution of India approach this Court with following prayers:
This Hon’ble Court
would be pleased to issue writ of certiorari or any other
appropriate writ, order or direction in the nature of certiorari, or
any other appropriate writ, order or direction and thereby would be
pleased to quash and set aside the order dated 21/01/2011 passed by
the respondent No.2 herein above (at Annexure “C” to the
petition) and be pleased to quash and set aside the order dated
20/09/2011 passed by the respondent No.3 herein above, (at Annexure
“E” to the petition) and be pleased to direct the
respondents herein above, to permit the petitioner to continue to
hold the office as Sarpanch of the Motibhojpur Gram Panchayat till
the expiry of the terms of his office on 14/01/2012, in the interest
of justice.
Pending admission and
till final disposal of present petition this Hon’ble Court would be
pleased to stay the execution, implementation and operation of the
impugned order dated 21/01/2011 passed by the respondent No.2
hereinabove (at Annexure “C”to the petition) and thereby
to stay the execution, implementation and operation of the impugned
order dated 20/09/2011 passed by the respondent No.3 hereinabove (at
Annexure “E” to the petition), in the interest of
justice and equity.
This Hon’ble Court
would be pleased to award the costs of present petition.
This Hon’ble Court
would be pleased to grant such other and further relief/s as may be
deemed fit, just and proper in the facts and circumstances of the
case, in the interest of justice.
2.1 Thus, essentially
the petition is filed challenging the order passed for removing the
petitioner as Sarpanch by respondent No.2 and that order is confirmed
by respondent No.3 in appeal proceedings.
2.2 Facts, as narrated
by the petitioner in the memo of the petition indicate that
petitioner was elected as Sarpanch of Motibhojpur Gram Panchayat.
3. At
this stage, Shri Mankad, who now appears in place of original
advocate for the petitioner has submitted that the draft amendment be
permitted to place on record. The same is taken on record and is
allowed and is ordered to be carried out.
3.1 Mr.Mankad
has submitted that the withdrawal was with a view to avoid stigma,
but as the removal order is received on 07.10.2011 of which the
petitioner was not aware, therefore on 10.10.2011 it was submitted
before this Court that the petitioner is desirous to withdraw the
petition and persuade the authority for avoiding stigma. Hence, the
Court may pass appropriate order on the submission canvassed.
3.2 The
petitioner received show-cause notice on 21.04.2009 as to why action
against him may not be taken for removing him from service as per the
Gujarat Panchayats Act (herein after referred to as ‘the Panchayats
Act’) for the misconduct enumerated thereunder. Mr.Mankad has
submitted that he is not aware of the show-cause notice and it is not
on record of this petition or in his reply, be that as it may.
3.3 It
seems that show-cause notice ultimately converted in the order of
removal dated 21.01.2011. Said order of removal was assailed by the
petitioner by filing appeal u/s. 57 (3) of the Panchayats Act before
the Additional Development Commissioner who concurred the findings
record by the District Development Officer, rejected the appeal vide
its order dated 20.09.2011. Hence, this petition.
3.4 The
learned advocate for the petitioner invited this Court’s attention to
the allegations made in the show-cause notice, on which the
petitioner call upon to answer and submitted that infact the sale of
the property in question had been concluded longback and it was only
the execution of the sale deed by the present petitioner which could
have been found to be objectionable by the concerned authorities.
The said action of the petitioner could not have been in any manner
permitted to be a misconduct so as to arrive about the drastic step
of removal of an elected representative of people.
3.5 The
petitioner’s advocate further contended that the movement it served
on the petitioner that it was a mistake on the part in executing the
documents, he take all the steps in ailing the same and therefore
there exists no loss on the part of the Panchayat and hence entire
exercise of show-cause notice and order of removal is not at all
necessary. The land which is alleged to be wrongfully alienated was
infact received by the Panchayat as gift and it would fall under the
provisions of old Section 98 requiring any permission. This
contention is not raised before the authority, but it is raised
before this Court. The person in whose favour the execution was
made, has given affidavit of unailing of land.
3.6 Mearly
the amount of Rs.600/- is taken by the earlier member of Panchayat,
no misconduct is done by the existing Sarpanch. No action was taken
against Panchayat from 1971 till 2007. Therefore, petitioner
embodiment to alienate the land in favour of the person, who passed
away back in the year 1971.
4. This
Court is of the considered view that plain reading of Section 57(1)
would persuaded this Court to hold that the Panchayat and Sarpanch’s
action are viewed as possibility of indulging in corrupt practice is
absolutely hasting and hence the conduct of the present petitioner is
required to be seen from that angle only.
4.1 The
petitioner has failed in establishing as to how and in what
circumstances it occurred to him for obliging the person who had paid
alleged consideration in the year 1971 by executing the documents in
the year 2009. The petitioner – Sarpanch was not prevented from
anyone from seeking appropriate approval from competent authority.
The very factum that in the year 1971 alleged sale deed is sought to
be executed and given legal form in the year 2009 wihout their being
any provisional order from any Court, which speaks volume about the
petitioner’s tendency. The petitioner has shown tendency of dealing
with public funds and public property which cannot be overlooked by
any Court of law.
4.2 This
petition being hopelessly bereft of merits, deserves rejection and it
is rejected. The rejection is with cost and cost is quantify at
Rs.5000/- to be deposited in the High Court Legal Services Committee.
Matter is disposed of, accordingly. Connected Civil Application is
also disposed of.
(S.R.BRAHMBHATT,
J.)
dks
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