Mukeshbhai Meghjibhai vs State of Gujarat
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Transcript of Mukeshbhai Meghjibhai vs State of Gujarat
8/7/2019 Mukeshbhai Meghjibhai vs State of Gujarat
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2010 (3) G.L.H. 293
s.r, MUKHOPADHAYA,ci.,
AND ANANT S. DAVE, l.
Mukeshbhai Meghjibhai Kapadiya and Anr. .. ..Appellants
Versus
State of Gujarat and Ors..... Respondents
Letters Patent Appeal No. 1156 of 2010.
I nSpecial Civil Application No. 13610 of 2009 With Civil Application
No. 5169 of 2010
With
Letters Patent Appeal No. 1177 of 2010
I nSpecial Civil Application No. 13611 of 2009 With Civil Application
No. 5287 of 2010 .....
Dj- 31.08.2010.
MUNICIPAL LAWS - Gujarat Panchayats Act, 1993 - S. 57 -
Removal from office - Members and Sarpanch of the Gram
Panchayats sold the scrap without resolution of the
Panchayat, without obtaining prior permission of superior
Authority and without publishing any advertisement in the
newspaper -Held, it cannot be termed as irregularity -
Further held, the irregularity as alleged amounts to
disgraceful conduct on the part of members and Sarpanch of
the Gram Panchayats - The removal by competent authority
of Members and Sarpanch from their respective offices, held,
proper.
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The authority after hearing the parties and taking into consideration
the fact that on record there is no resolution of the Gram Panchayat
and there is nothing on record to suggest that permission of the
competent authority was obtained or advertisement was published,
by order(s) dated 06.06.2009, the District Development Officer,
Rajkot removed the petitioners from their respective posts of
Members and Sarpanch in exercise of power conferred uj Sec.S7(1)
of Act. The appeals preferred against the same were also dismissed
by the appellate authority, i.e. the Development Commissioner,
Gandhinagar, by a detailed reasoned order dated 27.10.2009. As
noticed above, learned Counsel for the petitioners contended that
committing a mere irregularity do not attract Sec.S7(1) of the Act
and for that he has relied on a similar provision, i.e. Sec.37(1) of
the Gujarat Municipalities Act, 1963, which fell for consideration
before this Couirt in the case of Virbalaben Girishbhai Trivedi
(supra) - Special Civil Application No.7849 of 2009 and analogous
cases disposed of on 17.12.2009. However, the petitioner cannot
derive the advantage of the said case, as from the facts of the
present case, it will be evident that the allegation of selling scrap
without resolution of the Gram Panchayat, without obtaining prior
permission of superior authority and without publishing any
advertisement in newspapers cannot be termed to be an
irregularity. (Para 7)
In the present case, the irregularity as alleged amounts to
disgraceful conduct on part of the Members and Sarpanch of the
Gram Panchayat and one can also allege abuse of their power if
scraps of Panchayat are sold without a decision of the Panchayat or
permission of the competent authority and without any
advertisement. In that view of the matter, no writ petitioner can
derive advantage of the word irregularity' as in normal course
mentioned in the show cause notice of the impugned order. In any
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case, this was not a fit case for learned Single Judge to exercise
discretionary power under Art.226 of the Constitution of India and
for that we are not inclined to interfere with the orders impugned.
(Para 8)
Cases referred :
Virbalaben Girishbhai Trivedi & 13 others v. State of Gujarat
& 3 others Spl. C. A. 7849 of 2009 - Relied (Para 2)
Appearance:
Mr. Bhavin S. Raiyani for Appellants: 1 - 2.
Mrs. Krina Calla AGP for Respondents: 1 - 2.
Mr. Pranav V. Shah for Respondent: 3,
Notice Served By OSfor Respondent: 4.
PER: MR.S. J.MUKHOPAOHAYA, CJ. :-
1. The petitioners in Special Civil Application No. 13610 of 2009
were Members of Veraval Gram Panchayat and the other petitioner
in Special Civil Application No.13611 of 2009 was the Sarpanch of
the said Panchayat. In exercise of power conferred ujSec. 57 of the
Gujarat Panchayats Act, 1993 (the Act' for short), the competent
authority having removed them from their respective offices after
giving them opportunity to show cause and the said order having
been affirmed by the appellate authority, they unsuccessfully
preferred the respective writ petitions giving rise to these appeals.
2. The main plea taken by learned Counsel appearing on behalf of
the petitioners is that mere irregularity having been alleged in the
show cause notice, for such irregularity, no action can be taken
ujSec.57 of the Act. He placed reliance on an unreported Division
Bench decision of this Court in Virbalaben Girishbhai Trivedi &
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13 others v. State of Gujarat & 3 others in Special Civil
Application No.7849 of 2009 and analogous cases, wherein
action taken under similar provisions under the Gujarat
Municipalities Act, 1963, i.e. Secs 37 and Sec. 278A, fell for
consideration. The Bench by its judgment dated 17.12.2009 held
that for committing mere irregularity, such provisions are not
attracted and a Member or Sarpanch cannot be removed for
committing such irregularity.
3. Per contra, learned Counsel for the respondents submits that
there being concurrent finding of fact by the competent authority,appellate authority and the learned Single Judge, this Court may
not interfere with the same in appeal.
4. We have heard learned Counsel for the parties and perused the
record.
5. It appears that scrap of Veraval Gram Panchayat was sold
without any resolution passed by the Gram Panchayat. No
advertisement was published in any of the newspapers nor
permission of the competent authority was obtained to sell the
scrap. For such alleged irregularity, a show cause notice was issued
on petitioners on 31.12.2008 individually asking as to why they
should not be removed from their respective posts under the
provisions of Sec.S7(1) of the Act. They were individually directed
to remain present for the hearing on 07.01.2009 by the District
Development Officer, Rajkot.
6. Pursuant to the said notice, the petitioners appeared and have
filed their replies. It was informed that the resolution was adopted
by majority of the Panchayat for sale of the scrap, but the Secretary
has not recorded the resolution and thus there is no responsibility
on the part of the Members or the Sarpanch for recording such
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resolution. The Talati-cum-Mantri may be responsible for not writing
such resolution. The Talati-cum-Mantri has informed that he has
written the resolution for scrap and it has not been recorded in the
minute book. This was the stand also taken by the petitioners.
7. The authority after hearing the parties and taking into
consideration the fact that on record there is no resolution of the
Gram Panchayat and there is nothing on record to suggest that
permission of the competent authority was obtained or
advertisement was published, by order(s) dated 06.06.2009, the
District Development Officer, Rajkot removed the petitioners fromtheir respective posts of Members and Sarpanch in exercise of
power conferred uj Sec.S7(1) of Act. The appeals preferred against
the same were also dismissed by the appellate authority, i.e. the
Development Commissioner, Gandhinagar, by a detailed reasoned
order dated 27.10.2009. As noticed above, learned Counsel for the
petitioners contended that committing a mere irregularity do not
attract Sec.S7(1) of the Act and for that he has relied on a similar
provision, i.e. Sec.37(1) of the Gujarat Municipalities Act, 1963,
which fell for consideration before this Couirt in the case of
Virbalaben Girishbhai Trivedi (supra) - Special Civil Application
No.7849 of 2009 and analogous cases disposed of on 17.12.2009.
However, the petitioner cannot derive the advantage of the said
case, as from the facts of the present case, it will be evident that
the allegation of selling scrap without resolution of the Gram
Panchayat, without obtaining prior permission of superior authority
and without publishing any advertisement in newspapers cannot be
termed to be an irregularity.
8. Sec.S7 of the Act stipulates the grounds on which a Member of
the Panchayat, the Sarpanch or Upa- Sarpanch can be removed.
Apart from being found guilty of misconduct in discharge of his
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duties, any disgraceful conduct or abuse of powers or making
persistent default in performance of duties also attract Sec.S7(1)
and is quoted hereunder:-
"57(1) Removal from office.- 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 anydisgraceful 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."
In the present case, the irregularity as alleged amounts to
disgraceful conduct on part of the Members and Sarpanch of the
Gram Panchayat and one can also allege abuse of their power if
scraps of Panchayat are sold without a decision of the Panchayat or
permission of the competent authority and without any
advertisement. In that view of the matter, no writ petitioner can
derive advantage of the word irregularity as in normal coursementioned in the show cause notice of the impugned order. In any
case, this was not a fit case for learned Single Judge to exercise
discretionary power under Art.226 of the Constitution of India and
for that we are not inclined to interfere with the orders impugned.
In absence of any merit, both the Letters Patent Appeals and Civil
Applications are dismissed. There shall be no order as to costs.
(UPV) (Appeals dismissed)
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