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2009 DIGILAW 693 (GUJ)

Bhikhabhai Rajabhai Vegda v. State of Gujarat

2009-11-02

M.R.SHAH

body2009
Judgment M.R. Shah, J.—By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for an appropriate writ, order and/or direction, quashing and setting aside the impugned order dated 18/08/2009 passed by the Additional Development Commissioner, State of Gujarat in Appeal No. 46 of 2009 in dismissing the same and confirming the order dated 27/02/2009 passed by District Development Officer, Rajkot by which the petitioner has been removed from the post of Deputy Sarpanch under Section 57 of the Gujarat Panchayats Act, 1993 on the ground that the petitioner has encroached upon Gauchar land. 2. The petitioner was served with show cause notice by District Development Officer, Rajkot under Section 57(1) of the Gujarat Panchayats Act, 1993 (hereinafter referred to as “the Panchayats Act”) and the petitioner was called upon to show cause as to why the petitioner should not be removed from the post of Deputy Sarpanch as the petitioner has misused his official position and the petitioner has encroached upon the Gauchar land. The petitioner replied to the same and it appears from the order passed by the District Development Officer, Rajkot that even the petitioner admitted having encroached upon the Gauchar land and prayed for regularisation upon Gauchar land on payment of penalty. Thereafter, District Development Officer, Rajkot passed order dated 27/02/2009 removing the petitioner from the post of Deputy Sarpanch under Section 57 of the Panchayats Act holding that the charge of encroaching Gauchar land proved. Being aggrieved and dissatisfied with the order passed by the District Development Officer, Rajkot dated 27/02/2009 removing the petitioner from the post of Deputy Sarpanch, the petitioner preferred Appeal before Additional Development Commissioner, State of Gujarat and the Additional Development Commissioner, State of Gujarat vide order dated 18/08/2009 dismissed the said Appeal and confirmed the order removing the petitioner from the post of Deputy Sarpanch. Being aggrieved and dissatisfied with the aforesaid two orders, the petitioner has preferred the present petition under Article 226 of the Constitution of India. 3. Mr. Dhaval Vakil, learned Advocate appearing on behalf of the petitioner has vehemently submitted that there are other village people also, who are cultivating the Gauchar land. Therefore being Deputy Sarpanch the petitioner should not be punished and no special treatment is to be given to the petitioner. 3. Mr. Dhaval Vakil, learned Advocate appearing on behalf of the petitioner has vehemently submitted that there are other village people also, who are cultivating the Gauchar land. Therefore being Deputy Sarpanch the petitioner should not be punished and no special treatment is to be given to the petitioner. It is also further submitted that infact father of the petitioner was cultivating land in question and even report submitted by Taluka Development Officer on the basis of which the process was initiated, was not supplied to the petitioner and even the petitioner made statement before Talati-cum-Mantri to remove the encroachment, if any. Therefore, it is submitted that both the authorities below have materially erred in removing the petitioner from the post of Deputy Sarpanch. 4. The present petition is opposed by Ms. Maithili Mehta, learned Assistant Government Pleader appearing on behalf of respondent No. 1. It is submitted that when the petitioner himself has admitted the encroachment and even prayed for regularization upon Gauchar land on payment of penalty, it presupposes that the petitioner has encroached the Gauchar land, otherwise the petitioner ought not have made application for regularization upon Gauchar land. It is further submitted that in the above facts and circumstances of the case, even if report submitted by the Taluka Development Officer has not been given to the petitioner, the impugned order is not required to be quashed and set aside as no prejudice is caused to the petitioner. Nothing is on record to show that the petitioner has ever requested to get report of the Taluka Development Officer. It is further submitted that merely because some persons/village people are cultivating Gauchar land illegally that does not give any right in favour of the petitioner to encroach upon the Gauchar land and to cultivate the same. Ms. Mehta further submitted that the petitioner being Deputy Sarpanch has to set an example and has to see that other village people should follow him not by encroaching upon Gauchar land. It is submitted that being a leader the petitioner has to be given a special treatment and he could not be permitted to say that as the other village people are cultivating the Gauchar land, no action should be taken against him. Both the authorities below have rightly passed the orders removing the petitioner from the post of Deputy Sarpanch. Therefore, it is requested to dismiss the present petition. Both the authorities below have rightly passed the orders removing the petitioner from the post of Deputy Sarpanch. Therefore, it is requested to dismiss the present petition. 5. Heard learned Advocates appearing on behalf of the respective parties. It is not in dispute that the petitioner was at the relevant time Deputy Sarpanch of Village Panchayat and second citizen of the Village Panchayat. It cannot be disputed that a conduct of a leader must be to set an example to the village people and others. His conduct must be such that other village people should learn from him. It cannot be a converse. In the present case, the petitioner being Deputy Sarpanch has encroached upon Gauchar land and cultivated Gauchar land. The fact that the petitioner has encroached upon Gauchar land is established by the fact that the petitioner himself has submitted application for regularization upon Gauchar land on payment of penalty. In view of the above, no further evidence is required to prove the fact that in fact the petitioner has encroached upon Gauchar land or not. Even before the Appellate Authority, learned Advocate appearing on behalf of the petitioner has also specifically submitted that (at the time when Appeal was heard) the petitioner will remove the encroachment. Considering the above, it is found that the petitioner has encroached upon Gauchar land and was cultivating the same and when the petitioner has been removed from the post of Deputy Sarpanch, it cannot be said that the Authorities have committed any error or illegality and the orders are so perverse, which call for interference of this Court. On the contrary, both the authorities below are justified in removing the petitioner from the post of Deputy Sarpanch, as Deputy Sarpanch cannot be permitted to encroach upon the Gauchar land and permitted to cultivate the same. 6. The contention on behalf of the petitioner that other village people are cultivating the Gauchar land and, therefore, no action should be taken against the petitioner, cannot be accepted. There cannot be a negative discrimination. Merely because some other persons encroaching upon Gauchar land are cultivating Gauchar land, the petitioner cannot pray that he should also be permitted to continue with encroachment and cultivate the Gauchar land. 7. There cannot be a negative discrimination. Merely because some other persons encroaching upon Gauchar land are cultivating Gauchar land, the petitioner cannot pray that he should also be permitted to continue with encroachment and cultivate the Gauchar land. 7. So far as contention on behalf of the petitioner that the petitioner has not been given the copy of the report of the Taluka Development officer and panchnama was not prepared is concerned, in view of fact that the petitioner himself has admitted encroachment and preferred application for regularization upon Gauchar land, even if report of the Taluka Development Officer is not supplied, the order passed by District Development Officer is not required to be quashed and set aside on the aforesaid ground. In view of the aforesaid facts, no other evidence is required. 8. For the reasons stated hereinabove, there is no substance in the present petition and the same deserves to be dismissed and is accordingly dismissed.