Mukeshbhai Meghjibhai vs State of Gujarat

8/7/2019 Mukeshbhai Meghjibhai vs State of Gujarat

http://slidepdf.com/reader/full/mukeshbhai-meghjibhai-vs-state-of-gujarat 1/7

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.

1



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

2



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 &

3



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

4



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

5



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)

6



7

Documents

Mukeshbhai Meghjibhai vs State of Gujarat