JUDGMENT : 1. Present petition is filed by the petitioner under Article 226 and 227 of the Constitution of India as well as under the provisions of Gujarat Panchayat Act, 1993 (hereinafter referred to as 'the Act') for the prayer as prayed for inter alia that appropriate writ, order or direction may be issued quashing and setting aside the impugned order passed by respondent No.1 dated 13.09.2017 at Annexure-F confirming the order passed by the respondent No.2 on the ground stated in the memo of petition. 2. The facts of the case as stated in the petition are as follows: 2.1 The petitioner is Upa-Sarpanch and it is stated that he has become the victim at the hands of Sarpanch, who is not cooperating. The issue involved is with regard to giving lake of the village on lease for the purpose of fishery and the irregularities which has led to the impugned order, which is cited in the memo of petition. 3. Heard learned advocate Shri Ekrama Qureshi for the petitioner, learned AGP Shri Venugopal Patel for the respondent No.1 and learned advocate Shri H. S. Munshaw for the respondent No.2. 4. Learned advocate Shri Ekrama Qureshi referred to the background of the facts and pointedly referred to the page no.19, which is show cause notice, produced at Annexure-D collectively. He submitted that it is alleged that the lake has been given on lease without the procedure of tender. Learned advocate Shri Qureshi also referred to the order passed by the District Development Officer, at Annexure-E. Learned advocate Shri Qureshi submitted that the resolution is passed by the members collectively and it cannot be said that it was the decision of the petitioner alone. He submitted that after the discussion, the resolution is passed, which is not set aside and therefore, no fault could be found with the petitioner. 4.1 Learned advocate Shri Qureshi submitted that the petitioner is not the beneficiary. He referred to Section 57 of the Act and submitted that whether it would be attracted when there is no misconduct in functioning as the member. He further submitted that the misconduct has to be in discharge of duty or a public duty, is required to be considered. He submitted that it would be attracted if the duty assigned upon the public officer is not fulfilled then only it would be a misconduct. He further submitted that the misconduct has to be in discharge of duty or a public duty, is required to be considered. He submitted that it would be attracted if the duty assigned upon the public officer is not fulfilled then only it would be a misconduct. He also submitted that procedure of the inquiry is not properly followed and he has not signed the documents. 5. Learned advocate Shri Qureshi submitted that the allegation is that the petitioner has not complied with the government resolution dated 15.07.2003, which provide that such powers giving on lease the lake are to be exercised by the Government and therefore, there is misconduct. However, learned advocate Shri Qureshi has submitted that as the resolution is passed by all the members present, he cannot be blamed alone as it is collective decision. 6. Learned advocate Shri Qureshi also referred to Sections 95 to 97 of the Act and submitted that it refers to the procedure in respect of meeting and if there is any resolution, which is improper, it could have been set aside. Therefore, learned advocate Shri Qureshi referring to Section 55 of the Act and submitted that when the Sarpanch is incapacitated by resolution of Panchayat i.e. the resolution No.237, the petitioner as Upa-Sarpanch is required to conduct the meeting and therefore, he may not be made liable. 7. Learned advocate Shri Qureshi has submitted that as there is no misconduct, the powers of the Panchayat Act would not be attracted and the reasons are required to be recorded, which have not been recorded. He also submitted that the petitioner is bound by the Panchayat Act and the Rules and not by any other law. He has referred to and relied upon the judgment reported in 2001 (1)GLH 109 . 8. Learned AGP Shri Venugopal Patel referred to the background of the facts and submitted that the act of giving the lake of Panchayat without obtaining approval of the Government by the petitioner itself is misconduct. He submitted that the petitioner as Upa-Sarpanch had conducted the meeting and passed a resolution. 8. Learned AGP Shri Venugopal Patel referred to the background of the facts and submitted that the act of giving the lake of Panchayat without obtaining approval of the Government by the petitioner itself is misconduct. He submitted that the petitioner as Upa-Sarpanch had conducted the meeting and passed a resolution. He submitted that as a public servant, he is obliged to know the necessary provisions of law or the instructions of the Government like Government resolution dated 15.07.2003, produced at Annexure-G. He submitted that it is required to be noted that the petitioner acted in a haste and hurry for passing the resolution though the Sarpanch was present. The resolution was passed without waiting for Sarpanch and even after the Sarpanch has brought to the notice about the Government resolution, the petitioner did not thought it fit to wait for seeking any clarification. 9. Learned AGP Shri Patel submitted that in fact the manner in which the meeting is conducted in hurried manner itself suggests that merely because Sarpanch was late, they did not wait and pass the resolution as it is recorded that the Sarpanch was very much available on that day. He, therefore, submitted that it indicates about the surreptitious manner in which the resolution is passed and now it is sought to be argued that it is collective decision that he should not be responsible. He submitted that the powers, which were not with the Panchayat or the Sarpanch and Upa-Sarpanch, could not have been exercised and any such act of granting the lease of village lake without inviting tender or without verifying with the Government or without approval of the Government would amount to misconduct. Learned AGP Shri Patel submitted that as it is evident that the Sarpanch is said to have drawn the attention with regard to the fact that such powers are only with the Government to give the lakes of village on lease and therefore, at least the petitioner could have waited for some time seeking necessary approval from the Government even if he was not aware. He submitted that it shows that he proceeded further inspite of the knowledge that there does not exist any such power or authority and still he proceeded to grant lease in respect of the lakes of the village and it would imply the misconduct. 10. He submitted that it shows that he proceeded further inspite of the knowledge that there does not exist any such power or authority and still he proceeded to grant lease in respect of the lakes of the village and it would imply the misconduct. 10. Learned AGP Shri Patel referred to Section 55(2)(b) and submitted that the petitioner as Upa-Sarpanch has no business to call the meeting of the panchayat and abuse the resolution. He has also referred to Section 57 of the Act and submitted that whether the act is misconduct is an issue, which is required to be considered on the basis of material, and in the facts of the case the misconduct is established when the petitioner proceeded further inspite of the fact that he was put to the knowledge of such powers does not exist with the panchayat. He submitted that there is no substance in the submission that there is no misconduct, which would attracted the provisions of panchayat as it is a case of abuse of power. 11. Learned AGP Shri Patel submitted that the authority is empowered to make an inquiry and after the inquiry is made as reflected in both the impugned order, reasoned order is passed, which may not be disturbed in a given set of facts. He submitted that mere passing of an illegal resolution by some people would not confer any power or authority and therefore, the present petition may not be entertained. 12. Learned advocate Shri Munshaw for the respondent No.2 submitted that there is a collusion by the petitioner and other members and only in the absence of Sarpanch, such powers are abused. He referred to the papers and submitted that the manner in which the resolution is passed and in the guise of such resolution the powers are exercised and abused. He submitted that in spite of the objection regarding the resolution he has proceeded further which would show malafide. 13. Learned advocate Shri Munshaw submitted that the petitioner could not have proceeded to grant such lease of such lakes. He referred to Section 55(2)(b) of the Act and submitted that there is no such delegation of power and in fact, the Sarpanch, who has raised such objection that it would imply the presence of the petitioner. 13. Learned advocate Shri Munshaw submitted that the petitioner could not have proceeded to grant such lease of such lakes. He referred to Section 55(2)(b) of the Act and submitted that there is no such delegation of power and in fact, the Sarpanch, who has raised such objection that it would imply the presence of the petitioner. He submitted that there is nothing to suggest that the Sarpanch was incapacitated and therefore, any such arguments are misconceived. 14. In rejoinder, learned advocate Shri Qureshi again referred to the facts and also submitted that if it is for a period of ten years then Government could grant and if it is for three years, the Gram Panchayat may have the power. He again referred to Government resolution dated 15.07.2003 produced on record. Learned advocate Shri Qureshi referred to Section 55(2)(b) to support his submission about the exercise of power in the absence of Sarpanch. Learned advocate Shri Qureshi, therefore, submitted that as there is no misconduct, the provisions of Panchayat Act would not be attracted and the impugned order may be quashed and set aside. 15. In view of the rival submissions, it is required to be considered whether the present petition deserves consideration. As could be seen from the rival submissions and the provisions of Section 55 of the Panchayat Act, the Upa-Sarpanch can conduct proceedings and exercise the powers only when the Sarpanch is not present and not available. In the facts of the case, as admittedly stated that Sarpanch was present and in fact, he had raised objection pointing out the fact that such lease for fishing lake could be given by State Government and it was not within the purview of Panchayat to grant such lease. It is also required to be stated that the manner in which the meeting is conducted in a hurried manner as the Sarpanch was late for some time would indicate about the mala-fide or the motive. Instead of waiting, hurriedly the meeting was convened though within half an hour the Sarpanch had remained present and he had also pointed out on the aspect of the lease of such lake by Government. Therefore, it was put to the knowledge of the petitioner. However, the petitioner proceeded further and exercised the powers, which were not vested in him. Instead of waiting, hurriedly the meeting was convened though within half an hour the Sarpanch had remained present and he had also pointed out on the aspect of the lease of such lake by Government. Therefore, it was put to the knowledge of the petitioner. However, the petitioner proceeded further and exercised the powers, which were not vested in him. In fact, even if the Sarpanch had not pointed out, it was obligatory for the person like petitioner, who claims to exercise the power under the Panchayat Act to know the limitations and to know whether the power could be exercised with regard to the subject matter discussed in the resolution. The provisions of Section 55 (2)(b) clearly provide that there cannot be any delegation of power. Therefore, it is a fallacy of the submission that in the absence of Sarpanch, the petitioner as a Upa-Sarpanch presided over the meeting and exercised the power. The provisions of Section 57 referred to the misconduct in discharge of duty and the petitioner cannot be heard to say that as a Upa-Sarpanch he has no such duty though he has abused the power. 16. Another aspect is with regard to the inquiry, it is evident that the inquiry is made and the report of Taluka Development Officer and the report of District Development Officer clearly suggest the irregularity committed by the petitioner. If the petitioner claims as an elected representative, then it is the duty of the elected representative as Upa-Sarpanch to have the knowledge about his powers and function as well as the duty. Not only that, but in fairness, he could have waited for the Sarpanch and when the Sarpanch informed about the powers of the Government to give lease regarding the lake, he could not have proceeded further. At least, at that time, the petitioner could have waited and got some clarification from the Government. The manner in which the whole thing has proceeded clearly suggest that it is not a bona-fide mistake and it is rather deliberate abuse of power, which is not vested with the petitioner as Upa-Sarpanch. The provisions of Section 57 of the Panchayat Act, referred to the “removal from office”. It provides that Upa-Sarpanch can be removed, after an inquiry, if the Upa-Sarpanch has been found guilty of misconduct in discharge of duty and/or any disgraceful conduct or abuse of his power...” 17. The provisions of Section 57 of the Panchayat Act, referred to the “removal from office”. It provides that Upa-Sarpanch can be removed, after an inquiry, if the Upa-Sarpanch has been found guilty of misconduct in discharge of duty and/or any disgraceful conduct or abuse of his power...” 17. In the facts of the case, the petitioner has abused the power or rather exercised the power, which is not vested in him and it would also amount to disgraceful conduct as an elected representative as reflected from the report of the District Development Officer. There is no quarrel with the proposition referred to in the judgment of the High Court reported in 2015(1) GCD 561 (Guj) referring to the scope of Section 57. In that case, what has been referred to was the misconduct in an individual capacity as not a Sarpanch. It is required to be stated that it cannot be said to be abrasion or irregularity, but it would amount to a misconduct. Therefore, the submissions which have been made referring to the other judgments as stated above have to be considered in background of the facts and in any case the present petitioner cannot be heard to say that there is no misconduct or abuse of power. 18. Therefore, the present petition deserves to be dismissed and accordingly, stands dismissed. Rule is discharged. No order as to costs.