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2020 DIGILAW 182 (GUJ)

Rajabhai Manjibhai Parmar v. State of Gujarat

2020-01-29

A.G.URAIZEE

body2020
JUDGMENT : 1. RULE returnable forthwith. Ms. Asmita Patel, learned Assistant Government Pleader waives service of Rule on behalf of the respondent Nos.1 and 2 and Mr. H.S. Munshaw, learned advocate waives service of Rule on behalf of the respondent No.3. 2. The petition is taken up for final disposal with the consent of learned advocates appearing for the parties as the issue involved moves in a narrow compass. The following substantive prayers are made in this petition :- “8(B) This Hon'ble Court may be pleased to direct the respondents to permit the petitioner to perform his duties as Upsarpanch. (C) Pending the hearing and final disposal of the petition, be pleased to stay execution, implementation and operation of the impugned order impugned order dated 31/5/2019 passed in Appeal No.70/2018 by the respondent No.2, and order dated 2526/ 9/2018 passed by respondent No.3.” 3. The brief facts giving rise to this petition are that the petitioner was working as Upsarpanch of Shree Mahendranagar Gram Panchayat. One Haribhai Baljibhai Shersiya made an application dated 07.03.2017 against the petitioner to remove him from the post of Upsarpanch as he was living in a pakkahouse constructed on kharaba land after making encroachment and in view of decision of this Court dated 21.03.2000 rendered in Special Civil Application No.1642 of 1999 which amounts to misconduct under Section 57(1) of the Pandhayat Act, even if such encroachment is made before becoming member of the Panchayat. In this context, earlier Mamlatdar, Morbi has imposed fine of Rs.200/and has directed the petitioner to remove the encroachment vide order dated 06.10.2008. The petitioner had unsuccessfully challenged this order up to Additional Secretary, Revenue Department (Appeal). The petitioner had challenged the order dated 09.01.2018 of the Additional Chief Secretary in this Court by filing Special Civil Application No.1703 of 2018 wherein the Collector was directed to decide the application dated 15.06.2017 submitted by the petitioner for regularization of the constructions. 4. In the backdrop of the above facts, Shree Mahendranagar Gram Panchayat by notice dated 06.02.2018 was called upon to submit reply in the form of resolution or representation. Accordingly, Shree Mahendranagar Gram Panchayat by letter dated 14.02.2018 under signature of the Sarpanch and other eight members recommended the removal of the petitioner under Section 57(1) of the Panchayat Act. 4. In the backdrop of the above facts, Shree Mahendranagar Gram Panchayat by notice dated 06.02.2018 was called upon to submit reply in the form of resolution or representation. Accordingly, Shree Mahendranagar Gram Panchayat by letter dated 14.02.2018 under signature of the Sarpanch and other eight members recommended the removal of the petitioner under Section 57(1) of the Panchayat Act. The petitioner was by notice dated 19.07.2017 was called upon by respondent No.3 as to why he should not be removed from the post of Upsarpanch as he had made an encroachment on kharaba land. The petitioner submitted his reply on 19.03.2018. It was his say that he was removed from the post under Section 57(1) of the Panchayat Act on the same ground on 2008 and therefore, one cannot be punished twice on the same grounds. The respondent No.3 by order dated 25.09.2018 removed the petitioner from the post of Upsarpanch, as the petitioner having made an encroachment is established in view of the order dated 12.06.2017 of the Collector, Morbi and since so far the encroachment is not regularized, the petitioner is liable to be removed under Section 57(1) of the Panchayat Act. The petitioner challenged this decision before the Additional Development Commissioner, State of Gujarat, Gandhinagar by preferring Appeal No.70 of 2018 which came to be dismissed by order dated 31.05.2019. The petitioner is therefore before this Court to challenged the orders passed by the respondents removing him from the post of Upsarnpanch under Section 57(1) of the Panchayat Act. 5. Mr. Manoj Shrimali, learned advocate for the petitioner submits that the encroachment was made in the year 1984. It is his further submission that he has deposited Rs.4620/alongwith his application for regularization is still pending with the Collector, Morbi. He also submitted that Shree Mahendranagar Gram Panchayat has passed a resolution on 20.03.2015 to regularized the houses situated in Survey Nos.196 and 190 in the Indiranagar area as existed in the year 2011. He relying upon the decision of this Court in the case Of Dashrathlal Ishwarlal Patel Versus State of Gujarat, reported in 2013 (2) GLR 1257 . He submitted that the decision under Section 57(1) of the Panchayat Act can be invoked only on misconduct, disgraceful conduct, abusing of powers etc. He relying upon the decision of this Court in the case Of Dashrathlal Ishwarlal Patel Versus State of Gujarat, reported in 2013 (2) GLR 1257 . He submitted that the decision under Section 57(1) of the Panchayat Act can be invoked only on misconduct, disgraceful conduct, abusing of powers etc. It is his submission that he had not made the encroachment by misusing his post as Upsarpanch of the Gram Panchayat and therefore, the petitioner cannot be removed under Section 57(1) of the Panchayat Act. He is also relying upon the decision of this Court in the case of Gitaben W/O Fulsinh Thakore Versus State of Gujarat and others rendered in Special Civil Application No.18886 of 2014 wherein it is held that the encroachment is not one of the grounds mentioned in Section 57(1) of the Panchayat Act and therefore also petitioner could not have been removed from the post of Sarpanch on the ground of having made encroachment. It is therefore urged that the orders of the authorities below may setaside and the petitioner may be reinstated as Upsarpanch of the Panchayat. 6. Mr. H.S. Munshaw, learned advocate for the respondent No.3 submits that the encroachment which is made before becoming member of the Panchayat also amongst to misconduct and therefore, the authorities below have not committed any error in removing the petitioner from the post of upsarpanch. He has placed reliance upon the decision of this Court in the case of Bhikhubhai Rajabhai Vegda Versus State of Gujarat and another reported in 2010 (1) GCD 465 (GUJ.) wherein also the Deputy Sarpanch who has encroach upon the gauchar land and cultivated was removed from his post and such removal was upheld by this Court. He, therefore, he submitted that the decisions of the authorities below does not call for any interference. 7. Ms. Asmita Patel, learned Assistant Government Pleader for the respondent respondent Nos.1 and 2 has adopted the arguments canvassed by Mr. H.S. Munshaw, learned advocate for the respondent No.3. 8. The issue involved in this petition lies in narrow compass as to whether encroachment made in the year 1984 long before becoming member of the Panchayat and nonremoval thereof after becoming members of the Panchayat would amongst to misconduct or disgraceful conduct warranting removal under Section 57 of the Panchayat Act. H.S. Munshaw, learned advocate for the respondent No.3. 8. The issue involved in this petition lies in narrow compass as to whether encroachment made in the year 1984 long before becoming member of the Panchayat and nonremoval thereof after becoming members of the Panchayat would amongst to misconduct or disgraceful conduct warranting removal under Section 57 of the Panchayat Act. This Court in the case of Dashrathlal Ishwarlal Patel (Supra) relying upon earlier decisions of this Court in the case of Raysangbhai Ranchhodbhai Thakor Versus State of Gujarat through Secretary and others reported in 2011(4) GLR 3130 , in the case of Dineshbhai Govabhai Makwana Versus State of Gujarat and Others reported in 2012 (3) GLR 2285 and the decision of the Honourable Supreme Court in the case of Tarlochan Dev Sharma Versus State of Punjab and Haryana reported in (2001) 6 SCC 260 , held that non implementation of NREGA Scheme properly does not fall within the scope of show cause notice under Section 57 of the Panchayat Act. 9. In the case of Gitaben W/O Fulsinh Thakore (Supra), it is held by this Court that removal of the Sarpanch on account of failure to remove the encroachments on the gamtal and gauchar lands is beyond the scope of Section 57(1) of the Panchayat Act and therefore, the powers of removal being drastic cannot be invoked an exercised on flimsy ground. The removal was therefore setaside. 10. It is an undisputed fact that earlier petitioner had faced proceedings under Section 61 of the Land Revenue Code in respect of the encroachment and fine of Rs.250/was imposed on him and was also asked to remove the encroachment by the Mamlatdar and the said order was upheld upto the Additional Secretary, Revenue Departments, Appeal. However, when the order of Additional Chief Secretary was challenged before this Court, the petitioner was asked to approach Collector, Morbi for regularization of the encroachments. The petitioner has accordingly made an application dated 05.02.2018 to the Collector, Morbi which is still pending. However, when the order of Additional Chief Secretary was challenged before this Court, the petitioner was asked to approach Collector, Morbi for regularization of the encroachments. The petitioner has accordingly made an application dated 05.02.2018 to the Collector, Morbi which is still pending. It, therefore, appears that the authorities below have taken the steps of removing the petitioner as Deputy Sarpanch of the panchayat in haste apart from the fact that as has been held by this Court that removal under Section 57(1) of the Panchayat Act being drastic steps cannot be invoked lightly and such powers can be invoked only when the members of the Panchayat or Sarpanch or the Upsarpanch is found to be guilty of misconduct while discharging his duties or any disgraceful conduct or abuses his powers or makes persistent default in performance of his duties and function under the Act. As has been consistently held by this Court that nonremoval of encroachment does not come within the sweep of any of the contingencies envisaged by Section 57 of the Panchayat Act. I am therefore of the view that orders passed by the authorities below removing the petitioner from the post of Sarpanch cannot be sustained. 11. In view of the above, the petition succeed and is hereby allowed. As a consequences, the orders dated 2526.09.2018 passed by the respondent No.3 and order dated 31.05.2019 passed by the respondent No.2 are hereby quashed and setaside and the petitioner is directed to reinstate as the Sarpanch of Shree Mahendranagar Gram Panchayat. Rule is made absolute. Direct service is permitted.