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2017 DIGILAW 1598 (GUJ)

Mansukhbhai Karsanbhai Rathod v. State of Gujarat

2017-09-04

RAJESH H.SHUKLA

body2017
ORDER : RAJESH H. SHUKLA, J. 1. Present petition is filed by the petitioner under Articles 14, 16 and 226 of the Constitution of India as well as under the provisions of Gujarat Panchayats Act, 1993, challenging the order passed by Development Commissioner, State of Gujarat, dated 29.11.2016 on the ground stated in the memo of petition. 2. The brief facts of the case are that: 2.1 The petitioner is a resident of Pipardi Village, who falls within the criteria of Below Poverty Line (B.P.L.). He, therefore, submitted that the respondent No. 4 Gram Panchayat has reserved 21 plots for needy people to construct the residential premises. It is also averred that as per the policy those plots are required to be allotted by putting into auction. However, the encroachment was not removed by the Panchayat and therefore, the petition is filed. 3. Heard learned advocate Shri Nirzar Desai for the petitioner and learned AGP Ms. Jyoti Bhatt for the respondent-State. 4. Learned advocate Shri Desai referred to the background of the facts and submitted that the petitioner, who is also belonging to B.P.L. category would expect for the plot and as the Panchayat has failed to remove the encroachment, the application has been made and the respondent No. 5, who is the Sarpanch is sought to be removed as he has failed in discharge of his duty. 5. Learned AGP Ms. Jyoti Bhatt, however, resisted and submitted that the order clearly indicates that for unauthorized encroachment the respondent No. 5 could not be made liable and it cannot be said that he has not taken any action. She referred to the order passed by the Development Commissioner at Annexure-A and submitted that it has been clearly observed that the provisions of Section 57 of the Panchayats Act, the respondent No. 5 cannot be held liable personally as it is not a misconduct. She also referred to the order passed by the High Court including the Hon'ble Division Bench in Letters Patent Appeal No. 2576 of 2010 and therefore, submitted that a person who is elected in the democracy cannot be removed on such ground. 6. In view of this rival submissions and having regard to the prayers, the first prayer is with regard to the removal of respondent No. 5 on the ground of inefficiency or misconduct that he has failed to remove the encroachment. 6. In view of this rival submissions and having regard to the prayers, the first prayer is with regard to the removal of respondent No. 5 on the ground of inefficiency or misconduct that he has failed to remove the encroachment. However, as discussed in the impugned judgment itself, it cannot be said that he could be personally liable. Similarly, the provisions of Section 57, there is no misconduct in discharge of duty as a Sarpanch. Therefore, as referred to in the order and the judgment of the Hon'ble Division Bench in Letters Patent Appeal No. 2576 of 2010 observing that the elected representative cannot be removed in democracy so lightly. Therefore, the first prayer would not justify. 7. Another facet of the submission with regard to the allotment and auction of the plot to the petitioner, who claims that he belongs to B.P.L. category, no policy or a resolution or any material is placed on the basis of which such a claim could be made. There is nothing on record by which the direction as prayed for could be granted for disposal of the plots of the Panchayat in the manner suggested by the petitioner. The prayer that Gram Panchayat should be directed to dispose of the plot in time bound schedule by putting it to the auction, cannot be granted without any specific details regarding any scheme or a resolution under which such plots can be said to be reserved for disposal for the residential purpose to the people belonging to B.P.L. category. 8. Therefore, in the absence of any such broad policy or circular or any resolution, such prayers cannot be entertained. In fact, the person like petitioner may make a claim in affordable housing scheme by the Government subject to the fulfillment of the criteria. 9. Therefore, the present petition cannot be entertained and deserves to be dismissed and accordingly stands dismissed. Notice is discharged. No order as to costs.