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2015 DIGILAW 667 (GUJ)

Mohammedali Ibrahim Chaudhary v. State of Gujarat

2015-07-06

C.L.SONI

body2015
JUDGMENT C.L. Soni, J. 1. Considering the issue involved in the first petition, being Special Civil Application No. 15192 of 2014, and the second petition, being dependent on the outcome of the first petition, they are taken up for final disposal with consent of learned advocates appearing for the parties. Hence, RULE. Learned Assistant Government Pleader Mr. Janak Raval for respondent Nos. 1 and 2 in both petitions, learned advocate Mr. Munshaw for respondent No. 3 in both petitions, learned advocate Mr. P.P. Majmudar for respondent No. 4 in the first petition and learned advocate Mr. Mangukia for respondent No. 4 in the second petition waive service of Rule. 2. As such, fate of second petition depends upon the outcome of the first petition. 3. In the first petition filed under Article 226 of the Constitution of India, the petitioner- member of Sejalpura Gram Panchayat has challenged the order dated 18.10.2014 passed by respondent No. 2 in Appeal No. 71 of 2014, confirming the order dated 19.9.2014 passed by respondent No. 3 removing the petitioner as member of the Gram Panchayat. 4. The case of the petitioner is that the petitioner was elected as member of the Gram Panchayat in the year 2011 and his term would be expiring in the yea 2016. It is averred in the petition that rival group got false complaint filed against the petitioner and three other members of the Panchayat under Section 507 and 509 of the Indian Penal Code, which is registered as C.R. No. I-3147 of 2013 on 4.12.2013 and based on such FIR, the petitioner was issued show cause notice dated 12.2.2014 to show cause as to why he should not be removed as member of the Panchayat under Section 57 of the Gujarat Panchayat Act, 1993 ('the Act'). The petitioner replied to the show cause notice and pointed out that the complaint filed was on account of political rivalry and simple filing of the complaint was not enough to remove the member of the Panchayat under Section 57 of the Act. Respondent No. 3, however, passed order dated 19.9.2014 removing the petitioner as member in exercise of the power under Section 57 of the Act simply relying upon the FIR lodged against the petitioner. Such order has come to be confirmed by the Appellate Authority vide order dated 18.10.2014. 5. Learned advocate Mr. Respondent No. 3, however, passed order dated 19.9.2014 removing the petitioner as member in exercise of the power under Section 57 of the Act simply relying upon the FIR lodged against the petitioner. Such order has come to be confirmed by the Appellate Authority vide order dated 18.10.2014. 5. Learned advocate Mr. Mangukia for the petitioner submitted that except the allegation of lodging the FIR against the petitioner, the petitioner is not alleged to have committed any other misconduct, disgraceful conduct or persistent default in discharge of his duty as member of the Panchayat. Mr. Mangukia submitted that exercise of powers under Section 57 of the Act for removal of a member, Sarpanch or Deputy Sarpanch, as the case may be, is not permissible when the complaint is simply pending and unless a final conclusion is reached by the competent Court as regards the alleged act narrated in the complaint, the member of the Panchayat or Sarpanch or Up-Sarpanch, as the case may be, cannot be removed in exercise of the powers under Section 57 of the Act. Mr. Mangukia submitted that the issue as regards removal of a member, Sarpanch or Up-Sarpanch on pending complaint is no longer res integra and it is finally decided in the case of Haribhai Galbabhai Patel and Another Vs. Parmabhai Kanjibhai Parmar and others reported in : 2000(2) GLH 19 that a criminal complaint so long as it is sub-judice could not be a ground to remove the member, Up-Sarpanch or Sarpanch, as the case may be, under Section 57 of the Act. 6. Learned Assistant Government Pleader Mr. Raval appearing for the State authorities could not dispute that filing of the complaint itself without anything more is no ground for exercise of the powers under Section 57 of the Act. 7. Learned advocate Mr. Munshaw also has not cited any other decision on the issue involved and he also could not dispute that Hon'ble Division Bench of this Court has finally concluded that the powers under Section 57 of the Act are not permissible to be exercised simply on the basis of the pending complaint. 8. Similarly, learned advocate Mr. P.P. Majmudar appearing for respondent No. 4- petitioner of the second petition, is unable to dispute the above-said position of law declared by Hon'ble Division Bench of this Court. 9. 8. Similarly, learned advocate Mr. P.P. Majmudar appearing for respondent No. 4- petitioner of the second petition, is unable to dispute the above-said position of law declared by Hon'ble Division Bench of this Court. 9. By second petition, the petitioner- respondent No. 4 in the first petition has prayed to quash and set aside the communication dated 3.12.2014 as well as the order dated 3.12.2014 whereunder the Gram Panchayat is directed to again call the meeting in connection with passing of the budget for the year 2014-15 so as to comply with the oral order made by this Court. The said petition filed by the petitioner appears to be on the ground that the petitioner of the first petition since stood removed under Section 57 of the Act, he lost all his rights and opportunities to participate in the meeting of the Gram Panchayat for the purpose of passing budget for the year 2014-15. 10. Learned advocates are heard on the second petition. They agree that fate of the second petition is dependent upon the outcome of the first petition. 11. Having heard learned advocates for the parties, it appears that the show cause notice issued to the petitioner of the first petition under Section 57 of the Act was only on the basis of the FIR lodged against the petitioner and three other members. From the show cause notice, it appears that except pendency of the FIR, no allegation as regards other misconduct, disgraceful conduct or any persistent default is made against the petitioner. Thus, undisputably, the petitioner was sought to be removed as Member of the Panchayat by initiation of the proceedings under Section 57 of the Act only by relying on the pending complaint. No much discussion on the aspect as to whether exercise of powers under Section 57of the Act is permissible simply by relying on the pending complaint, which could be termed as complaint sub-judice is required in view of the decision of the Hon'ble Division Bench in the case of Haribhai Galbabhai Patel (supra) 12. Hon'ble Division Bench has in the case of Haribhai Galbabhai Patel (supra) held and observed in para 7 as under: "7. In our opinion, it is not necessary to enter into larger question. A fact, however, remains that a case against the appellants is pending and is sub judice. It is still not finalized. Hon'ble Division Bench has in the case of Haribhai Galbabhai Patel (supra) held and observed in para 7 as under: "7. In our opinion, it is not necessary to enter into larger question. A fact, however, remains that a case against the appellants is pending and is sub judice. It is still not finalized. An action of removal can be taken only after finding as required by Section 57 of the Act against the Sarpanch or Member, as the case may be. Institution of a criminal proceeding would not result into invoking provisions of Section 57 of the Act. In our view, therefore, the Additional Development Commissioner was right in setting aside the order passed by respondent No. 2 by granting him liberty to pass an appropriate order in accordance with law. Such order could not have been stayed by the learned Single Judge." 13. This Court relying on the judgment of the Hon'ble Division Bench in the above-said case, has quashed the orders made by the competent authority under Section 57 of the Act in the similar facts situation vide order dated 2.7.2015 passed in Special Civil Application No. 16157 of 2013. 14. In light of above and for the reasons stated above, the orders impugned in the first petition, being Special Civil Application No. 15192 of 2014, are thus required to be quashed and set aside. They are accordingly quashed and set aside. Rule is made absolute accordingly. 15. Since the first petition is allowed and the impugned orders removing the petitioner as member of the Panchayat are quashed and set aside, prayers made in the second petition preferred by respondent No. 4 of the first petition cannot be granted. Second petition is therefore, required to be dismissed. It is accordingly dismissed. Rule is discharged qua the second petition. 16. Since the first petition is allowed, Civil Application No. 2684 of 2015 shall not survive. Hence, disposed of accordingly. Rule is discharged qua the Civil Application. Direct Service is permitted.