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2020 DIGILAW 898 (GUJ)

Gandabhai Amthabhai Thakor v. State Of Gujarat

2020-10-29

BHARGAV D.KARIA

body2020
ORDER : 1. Heard learned advocate Mr.C.P. Champaneri for the petitioner and learned advocate Mr.H.S. Munshaw for respondent no.2, learned advocate Mr. N.P. Chaudhary for respondent no.3 and learned Assistant Government Pleader Mr. Soaham Joshi for respondent-State through video conference. 2. Rule returnable forthwith. Learned Assistant Government Pleader Mr.Soaham Joshi waives service of notice of rule for respondent No.1, learned advocate Mr.H.S.Munshaw waives service of notice of rule for respondent No.2 and learned advocate Mr.N.P.Chaudhary waives service notice of rule for respondent No.3. 3. By this petition under Articles 226 and 227 of the constitution of India, the petitioner has prayed for the following reliefs: “(A) That this Hon'ble Court may kindly be pleased to admit and allow the present petition. (B) That this Hon'ble Court may kindly be pleased to issue writ of mandamus or any other writ, order or direction in the nature of same and be pleased to quash and set aside the impugned order dated 20.11.2019 passed by the respondent no.1 in Appeal No. 61 of 2019 at Annexure-A to the present petition and be pleased to reinstate the petitioner on the post of Sarpanch of Adhar Village Panchayat. (C) Pending admission hearing till final disposal of the present petition, this Hon'ble Court may kindly be pleased to stay implementation, execution and operation of the impugned order dated 20.11.2019 passed by the respondent no.1 in Appeal No. 61 of 2019 at Annexure-A to the present petition and further be pleased to direct the respondent authorities not to restrain the petitioner from discharging his duties and functions as sarpanch of Adhar Village Panchayat. (D) That this Hon'ble Court will be pleased to pass such other and further order as the nature and circumstances of the case may require.” 4. Brief facts of the case are as under: (4.1) The petitioner is an elected Sarpanch of Adhar Gram Panchayat. The petitioner was served with the show-cause notice dated 10.4.2018 issued by respondent no.2 under section 51(1) of the Gujarat Panchayat Act,1993 for initiation of proceedings for removal from the post of Sarpanch on the ground that the petitioner after becoming Sarpanch continued in occupation of encroachment and committed persistent default in discharge of duties. (4.2) It is the case of the petitioner that the petitioner submitted satisfactory reply to the show cause notice and pulled down the so-called alleged encroachment. (4.2) It is the case of the petitioner that the petitioner submitted satisfactory reply to the show cause notice and pulled down the so-called alleged encroachment. (4.3) It is the case of the petitioner that though the encroachment was removed, respondent no.2 passed order dated 6.9.2019 and removed the petitioner from the post of Sarpanch. (4.4) The petitioner being aggrieved and dissatisfied by the order of respondent no.2 preferred Appeal No.61/2019 before the respondent no.1 authority along with stay application. (4.5) During the pendency of the appeal before the respondent no.1, Taluka Panchayat through Taluka Development Officer carried out inspection on 24.10.2019. (4.6) It is the case of the petitioner that respondent no.2 during the pendency of the appeal on 16.11.2019 informed respondent no.1 that during the pendency of appeal, an inquiry has been carried out by respondent no.2 and it is found that all the alleged encroachment of the petitioner as well as his brother has been removed and the land is vacant and no debris or wreckages were lying on the disputed land and the land is vacant. (4.7) Respondent no.1 vide impugned order dated 20.11.2019 rejected the appeal filed by the petitioner. (4.8) Being aggrieved by the aforesaid impugned order, the petitioner has preferred the present petition. 5. Learned advocate Mr.Chintan Champaneri submitted that the petitioner, who is removed as a Sarpanch under Section 57(1) of the Gujarat Panchayat Act, 1993 (for short ‘the Act, 1993’)on the ground that he encroached upon the Government land, has in fact removed the encroachment as stated in the show-cause notice dated 10.04.2018 issued by the District Development Officer, Patan prior to passing of the order dated 06.09.2019 removing the petitioner as a Sarpanch. 6. Learned advocate Mr.Champaneri further submitted that the Development Commissioner, has also while rejecting the appeal by order dated 20.11.2019, has not taken into consideration the fact of removal of encroachment by the petitioner as stated in the show cause notice. Learned advocate Mr.Champaneri submitted that the District Development Officer as well as the Development Commissioner, both have not considered the report of the Talati-cum- Mantri dated 26.07.2019, wherein it is stated by the Talati-cum-Mantri that the petitioner has removed the encroachment on 24.07.2019. Learned advocate Mr.Champaneri submitted that the District Development Officer as well as the Development Commissioner, both have not considered the report of the Talati-cum- Mantri dated 26.07.2019, wherein it is stated by the Talati-cum-Mantri that the petitioner has removed the encroachment on 24.07.2019. Learned advocate Mr.Champaneri also relied upon the report of the Talati-cum-Mantri submitted before the appellate authority confirming that there is no encroachment on the Government land by the petitioner as stated in the show cause notice. 7. Learned advocate Mr.Champaneri relied upon the decision in case of Jyotiba S. Zala V/s. District Development Officer, Ahmedabad in Letters Patent Appeal No.1173 of 2008 in Special Civil Application No.30920/2007 rendered by the Division Bench of this Court on 17th March, 2009 wherein it is held that the respondent-authority cannot travel beyond the show-cause notice. Learned advocate Mr.Champaneri submitted that the petitioner has already removed the encroachment as per the show-cause notice and therefore, the provisions of Section 57(1) of the Act,1993 could not have been invoked against the petitioner. 8. On the other hand, learned advocate Mr.Munshaw appearing for the District Development Officer submitted that though the petitioner has removed the encroachment over the Government land, relatives of the petitioner namely, his brother Thakor Ambajaji who has filed affidavit before the authority, has admitted that he is residing in a Government land and therefore, there is an encroachment and as such, the petitioner is rightly removed as a Sarpanch by exercising powers under Section 57(1) of the Act, 1993. Learned advocate Mr.Munshaw relied upon the following averments made in the affidavit-in-reply: “1. The Respondent no.2 most respectfully denies the averments and allegations made by the petitioner in the memo of Special Civil Application while praying to quash and set aside order dated 20.11.19 passed by Addl. Development Commissioner, Gujarat State, Gandhinagar rejecting Appeal No.61/19 preferred by present petitioner against the order dated 6.9.19 through which he is removed from the post of Sarpanch of Gram Panchayat under the provisions of section 57[1] of Gujarat Panchayat Act, 1993 by the respnt. no.2 herein. It is humbly stated that the petitioner herein is not entitled to any relief in present Special Civil Application preferred under the provisions of Articles 226 and 227 of the Constitution of India in view of the facts narrated hereinafter. 2. The respnt. no.2 submits that the population of village Aghar, Taluka Saraswati, Dist. no.2 herein. It is humbly stated that the petitioner herein is not entitled to any relief in present Special Civil Application preferred under the provisions of Articles 226 and 227 of the Constitution of India in view of the facts narrated hereinafter. 2. The respnt. no.2 submits that the population of village Aghar, Taluka Saraswati, Dist. Patan is 6691 as per the census of 2011 and a body of Aghar Gram Panchayai consists of Sarpanch and 8 members. It is submitted that pursuant to General Election of Gram Panchayat held by State Election Commission, petitioner herein was declared elected as Sarpanch and the first meeting of newly elected body of the Gram Panchayat was held on 5.5.17. The respdnt. no.2 submits that the Taluka Development Officer, Saraswati Taluka Panchayat, Dist. Patan addressed a letter dated 28.3.18 in response to a letter addressed by respnt. no.2 on 16.3.18 pointing out that the petitioner herein has failed in his duty of removal of encroachment and, therefore, necessary action be taken under the provisions of section 57[1] of Gujarat Panchayat Act, 1993 and a copy thereof is annexed herewith and marked as Annexure-A. It is pertinent to note that prior thereto it was communicated by the Taluka Development Officer, Sarawati Taluka through letters dated 30.1.18 and 13.3.18 that as such the site is visited and the Sarpanch himself has made encroachment and father of Upsarpanch is also encroacher and copies of said letters along with rojakam and relevant material are collectively annexed as ANNEXURE-B. The respnt. no.2 submits that the record submitted by the Taluka Development Officer, Taluka of Saraswati made it clear that the petitioner had encroached upon apprx. One Vigha of gauchar land and he as well as his brother Mr. Objiji Amthaji Thakor have put up construction of two houses and the same are registered in the encroachment register. The construction if of 50 ft. x 50 ft. as per the encroachment register. In view of this the petitioner was issued a notice dated 10.4.18 by the respnt. no.2 under the provisions of section 57[1]of Gujarat Panchayat Act, 1993 and a copy of the said notice is annexed as ANNEXURE-C. It is submitted that the petitioner was granted opportunities of hearing on 21.6.18, 16.7.18,30.7.18,15.10.18, 5.11.18, 3.12.18, 17.12.12, 21.1.19, 14.3.19,10.6.19and 8.7.19. In view of this the petitioner was issued a notice dated 10.4.18 by the respnt. no.2 under the provisions of section 57[1]of Gujarat Panchayat Act, 1993 and a copy of the said notice is annexed as ANNEXURE-C. It is submitted that the petitioner was granted opportunities of hearing on 21.6.18, 16.7.18,30.7.18,15.10.18, 5.11.18, 3.12.18, 17.12.12, 21.1.19, 14.3.19,10.6.19and 8.7.19. It is submitted that the Taluka Development Officer, Saraswati submitted his two reports dated 25.7.18and 7.12.18 while Talati cum Mantri of Village Aghar submitted his reports dated 25.6.19 and 26.7.19 and copies thereof are collectively annexed as ANNEXURE-D. It is submitted that considering overall factual aspects along with relevant material and as the petitioner failed to defend his case and it was evident that he as well as his brother have encroached upon gauchar land it was ultimately thought fit to remove the petitioner from the post of Sarpanch under the provisions of section 57[1] of Gujarat Panchayat Act, 1993. The respnt. no.2 humbly submits | that the said reasoned order indicates the details of encroachment and inaction of the petitioner in removing the same. It is stated that the Sarpanch himself has put up encroachment and such misuse of power and position cannot be overlooked and a copy of the order dated 6.9.19 is annexed as ANNEXURE-E. At this stage the respnt. no.2 submits that even Mr. Objiji Amthaji Thakor, brother of petitioner has declared on oath that there is an encroachment on gauchar land and a copy of the affidavit is annexed as ANNEXURE-F. 3. The respnt. no.2 submits that the petitioner herein challenged the impugned order dated 6.9.19 by way of filing appeal before respnt. no.1. It is submitted that a detailed reply was filed before the respnt. no.1 and the impugned order dated 6.9.19 was defended. It is stated that the said appeal came to be rejected yr through a detailed and reasoned order dated 20.11.19 by the respnt. no.1 and a copy thereof is annexed as ANNEXURE-G. In view of the above mentioned facts and circumstances it is crystal clear that the impugned orders are just and legal and in accordance with the provisions of section 57[1] of Gujarat Panchayat Act, 1993 and, therefore, Hon’ble Court is most respectfully prayed not to grant any interim relief and reject the present Special Civil Application in limine with cost in the interest of justice.” 9. Learned advocate Mr.Chaudhary who appears for the private respondent, at whose instance, the show cause notice was issued upon the petitioner for encroaching upon the Government land, submitted that the petitioner was continuing the encroachment at the time of issuance of the show-cause notice and removed only when the District Development Officer was to pass an order of removal from the post of Sarpanch. He therefore submitted that the petitioner has committed a breach of his duties as Sarpanch and therefore, the removal of the petitioner from the post of Sarpanch is just and proper and in accordance with law. He relied upon the following averments made in the affidavit-in-reply filed by the respondent No.3: “4. I say and submit that the subject matter of the petition is removal of petitioner from the post of sarpanch of Aghar village Panchayat under section 57(1) of Panchayat Act for the persistent default in the performance of duty as well as disgraceful conduct. 5. I say and submit that Shaw notice issued under section 57(1) of the panchayat Act to present petitioner on 10.04.2018 and hearing of about the proceeding kept on 07.05.2018 and on that day advocate appear behalf of me and reply was not filed behalf of petitioner and again hearing kept on 28.05.2018. I say that hearing kept of the proceeding under section 57 of the panchayat act on 21.6.2018, 16.07.2018, 30.07.2018 and on 30.07.2018 Taluka Development Officer instructed to file report. I say that again matter kept on 15.10.2018, 5.11.2018, 03.12.2018, and on 17.12.2018 petitioner was not remained present on 17.12.2018. I say and submit that petitioner appear through advocate on 21.01.2019 first time and made application for providing relevant paper and matter kept on 14.3.2019 but due to election of parliament hearing kept on 10.06.2019. 6. I further say and submit that after than hearing of the proceeding kept on 08.07.2019 and all parties remain present including village secretary and village secretary filed report on that day on 08.07.2019 encroachment totally not removed and symbolic possession of the gauchar land kept continued. I say and submit that notice issued on 10.04.2018 and even after passing of the more than one year petitioner was not serious for removing alleged encroachment where he was residing with his family. I say that petitioner was not serious about proceeding and intentionally delay removal of encroachment. I say and submit that notice issued on 10.04.2018 and even after passing of the more than one year petitioner was not serious for removing alleged encroachment where he was residing with his family. I say that petitioner was not serious about proceeding and intentionally delay removal of encroachment. I say and submit such type of behaving of petitioner is perfect example of disgraceful conduct as well as persistent default towards his duty. 7. I say and submit that alleged encroachment made by sarpanch him self and when sarpanch him self involved in such activity panchayat can not work properly under Panchayat Act so action taken by the authority for removing from post of sarpanch not required to be disturb by this Hon'ble court. 8. I say and submit that Panchayat duty to remove encroachment made in the gauchar land but in the present case sarpanch him self made encroachment in the gauchar land and not removed even though after service of Shaw cause notice in such circumstances petitioner can not say that removal of encroachment is duty cast upon panchayat and he him self is not duty bound. 9. I further say and submit that action taken by authority on the ground of disgraceful conduct of petitioner under section 57(1) of the Panchayat Act about removal. I say that petitioner cannot take benefit for removing encroachment and cannot resume his position. I say that removal and suspension both are different. I say that action taken under section 59 for suspension in which if the sarpanch after declared acquitted can resume his duty of sarpanch but when one action taken for removing from post of sarpanch after proving disgraceful conduct he shall not be reinstate.” 10. Learned advocate Mr.Chaudhary further submitted that this Court, in similar facts, in case of Kalaji Hathiji Thakor V/s. State of Gujarat reported in 2000 (2) GLH 582 has upheld the removal of Sarpanch by observing as under: “7. I have considered the pleadings and submissions of both the sides. Learned advocate Mr.Chaudhary further submitted that this Court, in similar facts, in case of Kalaji Hathiji Thakor V/s. State of Gujarat reported in 2000 (2) GLH 582 has upheld the removal of Sarpanch by observing as under: “7. I have considered the pleadings and submissions of both the sides. So far as the petitioner's grievance that he was not holding the office of the Panchayat on the date of alleged encroachment i.e.1.4.92 and therefore there is no question of any misconduct by the petitioner in discharge of his duties and as such he could not be removed under S.57(1) of the Gujarat Panchayats Act, 1993 on the ground that he had misused his office or that he had mis-conducted in discharge of his duties is concerned, it may be straightaway observed that no doubt the petitioner may not have been holding any office in the Panchayat on 1.4.92 and he may be right in his submission that he was a Member of the Panchayat prior to 1990 and was not a member of the Panchayat at the relevant time in the year 1992 and even as per the show cause notice it is found that he was elected as a Upa-Sarpanch on 10.7.95, that would not absolve the petitioner from being liable to action under S.57(1) for the simple reason that S.57(1) of the Gujarat Panchayats Act takes within its sweep any disgraceful conduct. In this view of the matter, whether it is a case of being guilty of misconduct in discharge of duties or abuse of power or making persistent default in the performance of his duties and functions under the Act or becoming incapable of performing his duties and functions under the Act or not, the fact remains that making of encroachment at any point of time and not the fact as to whether at that very point of time such Srapanch or Upa-Sarpanch is a Member of the Panchayat or not, the very factum of making unauthorised encroachment by him at any point of time is sufficient to make out a case of disgraceful conduct on his part and, therefore, this ground, as has been raised in the body of the petition, fails and this court finds that if the petitioner had made any unauthorised encroachment at any point of time, even the point of time when he was not a member of the Panchayat, would constitute a case of disgraceful conduct and, therefore, if it is found that the petitioner had made any unauthorised encroachment on the Panchayat land or had tried to grab this land on 1.4.92, the District Development Officer was within its right to initiate action against the petitioner for removal from the office of Upa-Sarpanch under S.57(1) of the Gujarat Panchayats Act, 1993. 8. So far as the allegation as to whether the petitioner had in fact been guilty of such disgraceful conduct or not is concerned, firstly it is not for this court to enter into the sufficiency of the material on this aspect of the matter. The fact remains that the petitioner was given a detailed show cause notice with allegations set out therein. He had filed the reply. Such reply had been taken into consideration and, thereafter, the District Development Officer came to the conclusion that the petitioner had made unauthorised encroachment as was alleged in the show cause notice and I do not find any basis to interfere with the findings arrived at by the District Development Officer. The District Development Officer has sifted the petitioner's reply against the allegations set out in the show cause notice and after considering the reply and the documents enclosed therewith by the petitioner, has found that the petitioner had made the unauthorised encroachment. The District Development Officer has sifted the petitioner's reply against the allegations set out in the show cause notice and after considering the reply and the documents enclosed therewith by the petitioner, has found that the petitioner had made the unauthorised encroachment. The District Development Officer has passed a detailed order and had also recorded that on more than one dates time was granted to the petitioner for the purpose of hearing on the reply to the show cause notice in these proceedings under S.57 and after considering the reply has recorded that unauthorised encroachment has been registered with the Panchayat on 1.4.92 and as per the map, which was prepared on the site on 20.10.97, the unauthorised encroachment had been made by the petitioner, nay, it has also been recorded that he had pressurised the other Members of the Panchayat to pass the Resolution dt.19.11.97, had obstructed the proceedings of the Gram Panchayat and got the Resolution passed in his favour merely because of the brute majority in his favour. Having considered all these aspects the order of removal was passed. 9. The Addl. Development Commissioner has also passed the order dt.25.1.99 after hearing dated 14.12.98 and in this order he has taken into consideration all the grounds, which were raised by the petitioner and has found in no uncertain terms that the petitioner had encroached upon 8179 sq.ft. of the Panchayat land and also that he had obstructed the Panchayat proceedings when the question of this unauthorised encroachment was taken up and had not removed the unauthorised encroachment even after being elected as a Upa-Sarpanch. The facts of this case in entirety coupled with the support of the documents, which have been taken into consideration, make it very clear that the finding arrived at by the District Development Officer and the Addl. Development Commissioner in Appeal do not warrant any interference and on the proved documents and material, it is certainly a case of disgraceful conduct on the part of the petitioner, which admits of no exception and the action, which has been taken against the petitioner, was fully justified and the orders, as have been passed, do not suffer from any infirmity whatsoever. 10. To meet the ground, as has been sought to be raised through the amendment Application, which has been allowed today i.e. Civil Application No.1808/2000. 10. To meet the ground, as has been sought to be raised through the amendment Application, which has been allowed today i.e. Civil Application No.1808/2000. Learned A.G.P. has brought to the notice of this Court the Government Notification dt.26.7.94 to which reference has been made by the petitioner to argue that the Competent Authority was the District Panchayat and not the District Development Officer. He submitted that it has been subsequently substituted by the words "District Development Officer" for "District Panchayat" by the notification dt.15.5.95 and, therefore, District Development Officer was the competent authority for the purpose of initiating action and ordering the removal of the petitioner as Upa-Sarpanch under S.57(1). This Notification under the Gujarat Panchayats Act, 1953 under Sec.2(4) as it appears at page 347 of 1995 Gujarat State Current Statutes is reproduced as under:- "214. The Gujarat Panchayats Act, 1993- Sec.2(4)Figures and words against S.No.11 of the Sch. Appended to the Noti.dated 26.7.94- Substituted. In exercise of the powers conferred under clause (4) of Section 2 of the Gujarat Panchayats Act, 1993 (Guj.18 of 1993), the Government of Gujarat hereby amends Government Notification Panchayats and Rural Housing Department No.KP/193 of 1994/DEL-1094/1247(ii)-J, dated the 26th July, 1994 as follows, namely:- In the schedule appended to the said notification- For the figures and the words appearing against serial No.11, the following shall be substituted, namely :- 1 2 3 4 11. 57(1) and 57(2) Removal from office of Village Panchayat District Development Officer Note:- See 1994 Gujarat State Current Statutes, Part II (Gujarat Section) at page 593, Head Note No.274 for the above referred notification dated 26-7-94. (Noti.No.KP/91 of 1995/MIS-2691/1079-J. dt.15.5.95 - Guj. Govt. Gaz., Exty., Pt.I-A, No.107, dt.15.5.95, P.107-1.)" 11. It is, therefore, clear that the aforesaid ground of the petitioner that the action under S.57(1) could not have been initiated by the District Development Officer and the District Development Officer could not pass the order against the petitioner for his removal has no basis and this ground also fails. 12. Govt. Gaz., Exty., Pt.I-A, No.107, dt.15.5.95, P.107-1.)" 11. It is, therefore, clear that the aforesaid ground of the petitioner that the action under S.57(1) could not have been initiated by the District Development Officer and the District Development Officer could not pass the order against the petitioner for his removal has no basis and this ground also fails. 12. The adjudication of the petitioner's grievances, as aforesaid, need not detain this Court further from deciding this petition against the petitioner, merely on the bald allegation that he has been removed because he is a supporter of Congress (I) party, no material whatsoever has been placed on record in support of this bald allegation and such vague and wild allegations can be levelled at any time as and when a person is removed. Unless and until any material is placed on record in support of such allegations of malafide, this Court cannot proceed to strike down the action or the order on such bald plea. This ground appears to be wholly misconceived, rather ill conceived and the same is hereby rejected.” 11. Having considered the rival submissions made by the respective parties and having gone through the materials on record, it appears that the petitioner was encroaching upon the Government land prior to his appointment as Sarpanch along with his brothers and relatives. After the issuance of show-cause notice at the instance of the respondent No.3, the petitioner has removed the encroachment as per the report of the Talati-cum-Mantri dated 26.07.2019. However, in-spite of this fact the District Development Officer, considering the encroachment made by the relatives of the petitioner removed the petitioner from the post of Sarpanch. 12. It is also pertinent to note that on perusal of the show-cause notice, the petitioner was not given any notice with regard to the encroachment made by the brother of the petitioner or any of his relatives. When the petitioner has already removed the encroachment made by him for which the show-cause notice was issued, both the authorities below could not have removed the petitioner under the provisions of Section 57(1) of the Gujarat Panchayat Act, 1993. When the petitioner has already removed the encroachment made by him for which the show-cause notice was issued, both the authorities below could not have removed the petitioner under the provisions of Section 57(1) of the Gujarat Panchayat Act, 1993. For ready reference Section 57(1) reads as under : “57(1) The competent authority may remove from office any member of the panchayat, the Sarpanch or, as the case may be, the Upa- Sarpanch thereof, after giving him an opportunity of being heard and giving due notice in that behalf to the panchayat and after such inquiry as it deems necessary, if such member, Sarpanch or, as the case may be, Upa-Sarpanch has been guilty of misconduct in the discharge of his duties or of any disgraceful conduct or abuses his powers or makes persistent default in the performance of his duties and Junction under this Act or has become incapable of performing his duties and functions under this Act. The Sarpanch or, as the case may be, the Upa-Sarpanch, so removed may at the discretion of the competent authority also be removed from the membership of the panchayat.” 13. On perusal of the above provision, it is clear that it is the duty of the Sarpanch to carry out the function of the Panchayat but at the same time, it is the duty of the Village Panchayat as a whole as per Section 105 of the Act.1993 to remove the encroachments in the village and not the Sarpanch alone. This Court, in Special Civil Application No. 18886 of 2014, in case of Gitaben w/o Fulsinh Thakor V/s. State of Gujarat vide judgment dated 17th March, 2015 has held as under: “18. The sole ground on which the petitioner has been removed from the office of Sarpanch is her alleged failure to remove the encroachments on the Gamtal and Gauchar lands. The petitioner has, in her reply to the Show Cause Notice issued by respondent No.2, given her explanation regarding the seventeen encroachments registered in the Encroachment Register, referring to each one of them. A perusal of the impugned order passed by respondent No.2 reveals that after reproducing the reply of the petitioner, the said respondent has failed to deal with the contentions and explanations put forth by the petitioner while passing the impugned order, leave alone to accord them even a minimal consideration. 19. A perusal of the impugned order passed by respondent No.2 reveals that after reproducing the reply of the petitioner, the said respondent has failed to deal with the contentions and explanations put forth by the petitioner while passing the impugned order, leave alone to accord them even a minimal consideration. 19. The petitioner has stated in her reply that out of the seventeen encroachments registered in the Encroachment Register, about four encroachments no longer exist. Three encroachments have been removed and nine encroachments have taken place during the tenure of the earlier Sarpanch (and not during her tenure). The petitioner has also stated that notices have been issued to the existing encroachers, but due to the coming into force of the Code of Conduct for the general elections, no further action could be taken. This explanation is merely recorded for the sake of recording in the impugned order, but has not been given any consideration. 20. Respondent No.2 has removed the petitioner on the sole ground that she has failed to remove the encroachments, but has not stated whether such failure would constitute misconduct in the discharge of her duties, disgraceful conduct, abuse of power or persistent default in the performance of duties as Sarpanch under Section-57(1) of the Act. Failure to mention the grounds mentioned in Section 57(1) of the Act on the basis of which the petitioner has been removed, becomes relevant as it is only in those specified contingencies that the power to remove a duly elected Sarpanch, as conferred by the statute, can be exercised. There cannot be an additional ground, not mentioned in the said Section, as that would amount to expanding the scope of Section 57(1) of the Act, which cannot be done by respondent No.2. 21. In light of the above, it would be fruitful to refer to the provisions of Section-57 (1) of the Act, which are reproduced here-in-below : “57. There cannot be an additional ground, not mentioned in the said Section, as that would amount to expanding the scope of Section 57(1) of the Act, which cannot be done by respondent No.2. 21. In light of the above, it would be fruitful to refer to the provisions of Section-57 (1) of the Act, which are reproduced here-in-below : “57. Removal from office – (1) The competent authority may remove from office any member of the Panchayat, the Sarpanch or, as the case may be, the Upa-Sarpanch, thereof, after giving him an opportunity of being heard and giving due notice in that behalf to the Panchayat and after such inquiry as it deems necessary, if such member, Sarpanch or, as the case may be, Upa-Sarpanch has been guilty of misconduct in the discharge of his duties or of any disgraceful conduct or abuses his powers or makes persistent default in the performance of his duties and functions under this Act or has become incapable of performing his duties and functions under this Act. The Sarpanch or, as the case may be, the Upa-Sarpanch, so removed may at the discretion of the competent authority also be removed from the membership of the Panchayat. (2) ***** (3) *****” 22. Failure to remove encroachments is not one of the grounds mentioned in Section 57(1) of the Act. In the view of this Court, it was incumbent upon respondent No.2 to form a clear opinion whether the alleged inaction of the petitioner, in not removing the encroachments, falls under any of the contingencies mentioned in Section-57(1) of the Act, before exercising the power of removal vested in him. Respondent No.2 has not stated in the impugned order that the petitioner falls under any of the contingencies mentioned in sub-section (1) of Section 57, which are the only grounds for the removal of a Sarpanch. It, therefore, appears that respondent No.2 has exercised the powers vested in him without proper application of mind to the relevant provisions of law and has removed the petitioner on a ground not specified in Section-57(1) of the Act. 23. The petitioner had preferred an appeal against the order of respondent No.2 before respondent No.1, which has been rejected in a mechanical manner, by confirming the order of respondent No.2. 24. 23. The petitioner had preferred an appeal against the order of respondent No.2 before respondent No.1, which has been rejected in a mechanical manner, by confirming the order of respondent No.2. 24. In the impugned order passed by respondent No.1, it is stated that the petitioner is directly responsible for her alleged failure to remove the encroachments. In the said order, the reply of the petitioner to the Show Cause Notice has, again, been reproduced at length, including the contention that some of the encroachments were made prior to the tenure of the petitioner. Having recorded the reply of the petitioner, respondent No.1 has failed to consider the explanations advanced by the petitioner and has not dealt with even a single one of them. 25. It is surprising to note that respondent No.1 has stated in the impugned order that he does not agree with the contentions advanced on behalf of the petitioner, regarding the judgment of this Court in Special Civil Application No.2073/2000, dated 05.05.2000. The said judgment has been conveniently brushed aside by respondent No.1 as it may not have matched with the conclusion he wanted to arrive at. The said judgment squarely covers the issues involved in the present petition and the relevant portion thereof is reproduced hereinbelow: “7. ***** So far as charges Nos.3 to 9 are concerned, which relate to the failure on the part of the petitioner to remove unauthorised encroachment, it may straightaway be observed that such allegations may at the most speak of inefficiency, but certainly they do not constitute any misconduct on the part of the petitioner. There are large number of unauthorised encroachments even on the lands which belong to the Government and if the Government functionaries are not able to remove the encroachment for various reasons, including the law and order problems or for other alike reasons, it cannot be said that such functionaries have misconducted themselves. In any case, a difference has to be made between inefficiency and misconduct. In any case, a difference has to be made between inefficiency and misconduct. I find that it is a case in which there was no material which can be said to be relevant and germane to the grounds of misconduct as mentioned in S.57(1) of the Act and the petitioner, who was an elected representative of the Panchayat functioning as a Sarpanch, has been removed for reasons which are not at all germane to the grounds mentioned in S.57(1) and there was no material to form an opinion against the petitioner with regard to any of the charges for which he was subjected to the show cause notice and for which the impugned orders have been passed. It appears that the authorities charged with the power under S.57 for the purpose of removing and for considering the appeal against the order of removal have not addressed themselves to the requirements and have misconstrued the case of the petitioner to be a case of misconduct whereas in fact at the most it could be said to be a case of inefficiency on the part of the petitioner if the unauthorised encroachments have not been removed. The task of removing unauthorised encroachment is a general problem which is faced by various local bodies, including Municipal Corporations and the Government itself even when it is armed with court orders and for reasons beyond the control of the concerned functionaries, many times it becomes impossible to remove such unauthorised encroachment without use of force and therefore, in the opinion of this court such a failure, which at the most reflect the level of efficiency, cannot be treated as misconduct or a persistent default in performance for the purpose of removing an elected office bearer. If on such grounds elected representatives are removed from their offices, as if they are Government servants, it would militate against the basic principles of democratic set up and the democratic institutions at the local self Government and it would amount to a direct interference with the functioning of the local bodies contrary to the provisions made by the Legislature. If on such grounds elected representatives are removed from their offices, as if they are Government servants, it would militate against the basic principles of democratic set up and the democratic institutions at the local self Government and it would amount to a direct interference with the functioning of the local bodies contrary to the provisions made by the Legislature. This Court while considering such matters is not sitting in Appeal over the orders passed by the authorities, but what is found in the facts of this case is that the orders have been passed against the petitioner for reasons which are wholly extraneous and not at all germane to the grounds which are mentioned in S.57(1) for the purpose of removal of an elected office bearer like Sarpanch and it is a case of total absence of any material on the basis of which the opinion could be formed against the petitioner for the purpose of holding the charges to be proved-- rather the charges have no nexus to the grounds mentioned in Sec.57(1).” (emphasis supplied) 26. The principles of law enunciated by this Court in the above judgment would fully apply to the facts of the present case. It has been contended by the petitioner in the reply to the Show Cause Notice, and has been mentioned in both the impugned orders, that as many as nine encroachments out of seventeen had been made before the tenure of the petitioner as Sarpanch. Regarding the remaining encroachments, the petitioner has given her explanation which has not been taken into consideration at all by the respondent authorities. If it is the case of the respondents that the petitioner, being the Sarpanch of the Gram Panchayat, is solely responsible for the existence of the encroachments, then this Court fails to understand how the petitioner can be held to be responsible for the encroachments that have taken place prior to her tenure as Sarpanch. In any case, as held by this Court in the above-quoted judgment, failure to remove unauthorized encroachments by the Gram Panchayat can be termed as inefficiency, but it cannot be termed as misconduct. As stated by this Court, the task of removing unauthorized encroachments is a general problem faced by various local bodies, including Municipal Corporations and the Government itself. In any case, as held by this Court in the above-quoted judgment, failure to remove unauthorized encroachments by the Gram Panchayat can be termed as inefficiency, but it cannot be termed as misconduct. As stated by this Court, the task of removing unauthorized encroachments is a general problem faced by various local bodies, including Municipal Corporations and the Government itself. If the said local bodies or the Government fail to remove the encroachments, it cannot be said that the Officers responsible have committed misconduct. 27. A contention has been raised on behalf of respondent No.2 that the petitioner is the head of the Gram Panchayat and is, therefore, responsible for the removal of encroachments under Section-105 of the Act. A perusal of the provisions of Section-105 states that the Panchayat may remove such obstructions and encroachments, but does not confer exclusive power upon the Sarpanch of the Panchayat or cast any duty solely upon the Sarpanch, individually, to remove such encroachments. In fact, it is the collective duty of the Gram Panchayat and not the sole responsibility of the Sarpanch. Of course, the Sarpanch, by virtue of his/her position, can give impetus to the decision to remove encroachments, but as per Section-105 of the Act, the responsibility, or duty, to do so, vests in the Gram Panchayat as a body and not in the Sarpanch alone. 28. In the Report of the Taluka Development Officer dated 28.01.2014, annexed as Annexure-B to the affidavit-in-reply of respondent No.2, the Taluka Development Officer has stated that notices have been issued to the Kadadara Gram Panchayat for the removal of the encroachments. It is nowhere mentioned that notices have been issued to the petitioner, individually, in her capacity as Sarpanch. The respondents are, therefore, conscious of the fact that it is the collective duty of the Gram Panchayat to remove encroachments upon Government land and not the duty of the Sarpanch alone. If that is so, then the action of respondents Nos.2 and 1 in removing the petitioner as Sarpanch on the ground that she has failed to remove the encroachments and is personally responsible, is unsustainable in law. 29. In the impugned order passed by respondent No.1, an allegation is made that the petitioner is conniving with the encroachers by not taking action to remove the encroachments. This observation is not based upon any material on record and discloses a predetermined mindset. 29. In the impugned order passed by respondent No.1, an allegation is made that the petitioner is conniving with the encroachers by not taking action to remove the encroachments. This observation is not based upon any material on record and discloses a predetermined mindset. The non-consideration of the points raised by the petitioner in her reply to the Show Cause Notice and the aspect that several encroachments have occurred prior to her tenure as Sarpanch, goes to the very root of the matter and indicates that the respondents have passed the impugned orders without proper application of mind to the factual and legal position, in their haste to remove the petitioner from the post of Sarpanch. 30. In Dineshbhai Govabhai Makwana Vs. State of Gujarat and others (Supra), this Court has held as below: “20. Normally, the High Court would not be lightly persuaded to enter into the correctness of findings rendered concurrently by two authorities, ostensibly based upon material on record. However, the court is not precluded, under its powers of judicial review, from ensuring that those findings are amply supported by cogent and convincing material, especially in a case where removal of a democratically elected Sarpanch from his office would entail serious civil consequences. Under Article 26 of the Constitution of India, the Court is empowered to examine the matter in order to do complete justice and prevent a miscarriage of justice. The nature of the power of removal under Section 57(1) of the Act and the resultant consequences are such, that it becomes all the more necessary for the Court to ensure that such drastic power is not exercised for minor irregularities in the discharge of duties and functions by a Sarpanch, but for solid and weighty reasons. 21. It may be pertinent, at this stage, to examine certain judicial pronouncements of the Apex Court in this regard. 22. In Tarlochan Dev Sharma v. State of Punjab, (2001) 6 SCC 260 , the Apex Court, while dealing with the removal of a President of the Council under the Punjab Municipal Act,1911, held as below: “7. In a democracy governed by rule of law, once elected to an office in a democratic institution, the incumbent is entitled to hold the office for the term for which he has been elected unless his election is set aside by a prescribed procedure known to law. In a democracy governed by rule of law, once elected to an office in a democratic institution, the incumbent is entitled to hold the office for the term for which he has been elected unless his election is set aside by a prescribed procedure known to law. That a returned candidate must hold and enjoy the office and discharge the duties related therewith during the term specified by the relevant enactment is a valuable statutory right not only of the returned candidate but also of the constituency or the electoral college which he represents. Removal from such an office is a serious matter. It curtails the statutory term of the holder of the office. A stigma is cast on the holder of the office in view of certain allegations having been held proved rendering him unworthy of holding the office which he held....” (emphasis supplied) 22.1 Further, in paragraph 11 of the reported judgment, the Apex Court has further observed as below: “11. The expression “abuse of powers” in the context and setting in which it has been used cannot mean use of power which may appear to be simply unreasonable or inappropriate. It implies a willful abuse or an intentional wrong. An honest though erroneous exercise of power or an indecision is not an abuse of power. A decision, action or instruction may be inconvenient or unpalatable to the person affected but it would not be an abuse of power. It must be such an abuse of power which would render a Councilor unworthy of holding the office of President. Inasmuch as an abuse of power would entail adverse civil consequences, the expression has to be narrowly construed. Yet again, the expression employed in Section 22 is “abuse of his powers or habitual failure to perform his duties”. The use of plural - powers, and the setting of the expression in the framing of Section 22 is not without significance. It is suggestive of legislative intent. The phrase “abuse of powers” must take colour from the next following expression - “or habitual failure to perform duties”. A singular or casual aberration or failure in exercise of power is not enough; a course of conduct or plurality of aberration or failure in exercise of power and that too involving dishonesty of intention is “abuse of powers” within the meaning of Section 22 of the Act. A singular or casual aberration or failure in exercise of power is not enough; a course of conduct or plurality of aberration or failure in exercise of power and that too involving dishonesty of intention is “abuse of powers” within the meaning of Section 22 of the Act. The legislature could not have intended the occupant of an elective office, seated by popular verdict, to be shown exit for a single innocuous action or error of decision.” (emphasis supplied) 23. More recently, in Sharda Kailash Mittal v. State of M.P., AIR 2010 SC 3450 , while dealing with a case of removal of President under the Madhya Pradesh Municipalities Act, 1961, under an analogous provision, the Supreme Court has held as below: “18. For taking action under Section 41-A for removal of President, Vice-President or Chairman of any Committee, power is conferred on the State Government with no provision of any appeal. The action of removal casts a serious stigma on the personal and public life of the concerned office-bearer and may result in his/her disqualification to hold such office for the next term. The exercise of power, therefore, has serious civil consequences on the status of an office bearer. There are no sufficient guidelines in the provisions of Section 41-A as to the manner in which the power has to be exercised, except that it requires that reasonable opportunity of hearing has to be afforded to the office bearer proceeded against. Keeping in view the nature of the power and the consequences that flows on its exercise it has to be held that such power can be invoked by the State Government only for very strong and weighty reason. Such a power is not to be exercised for minor irregularities in discharge of duties by the holder of the elected post. The provision has to be construed in strict manner because the holder of office occupies it by election and he/she is deprived of the office by an executive order in which the electorate has no chance of participation. 19. In the present case, the actions of the appellant, even if proved, only amount to irregularities, and not grave forms of illegalities, which may allow the State Government to invoke its extreme power under Section 41–A.” 14. It is a trite law that the authorities cannot travel beyond the subject matter of the show-cause notice. 19. In the present case, the actions of the appellant, even if proved, only amount to irregularities, and not grave forms of illegalities, which may allow the State Government to invoke its extreme power under Section 41–A.” 14. It is a trite law that the authorities cannot travel beyond the subject matter of the show-cause notice. The Division Bench of this Court has also, in case of Vakatar Bhagvanjibhai Devabhai v. Additional Development Commissioner reported in AIR 2011 Guj 159 has held as under: “3 The orders passed by the authorities under the Act were subject matter of challenge before the learned Single Judge in a writ petition being Special Civil Application No.10991/2010. The learned Single Judge came to the conclusion that as both the authorities, namely, the District Development Officer, Rajkot and the appellate authority - the Additional Development Commissioner, State of Gujarat, have concurrently held that the appellant is guilty of misconduct, declined and refused to grant relief to the appellant – original petitioner and accordingly dismissed the petition. We have heard learned counsel Mr.B.T.Rao for the appellant, Mr.H.S.Munshaw for respondent nos.2 & 3, and learned AGP Mrs.Manisha Shah for the respondent – State, and perused the record. 4. The order of removal under Section 57 of the Act came to be passed against the appellant on the grounds as indicated below: The first charge is with regard to the implementation of SGRY Scheme. It is alleged that as per the guidelines of SGRY Scheme, the necessary work has to be undertaken through the labourers of the same village. It is alleged that the labourers were brought from another place and persons residing in the village were deprived of employment. The sum and substance of this charge is that the appellant as a Sarpanch ought to have taken care to see that the SGRY Scheme is implemented properly and all the guidelines are strictly adhered to. 5. The second charge is to the effect that under Section 105 of the Act, it is the responsibility of the Gram Panchayat to maintain Government land and 'gauchar' land and see to it that there is no encroachment or any obstruction created by any other person in this regard. The charge is that the appellant, in his capacity as Sarpanch, has been negligent in removing such encroachments made upon Government land and 'gauchar' land. 6. The charge is that the appellant, in his capacity as Sarpanch, has been negligent in removing such encroachments made upon Government land and 'gauchar' land. 6. The third charge is to the effect that one Mr.Jagdish D.Makwana, a member of the Gram Panchayat was also employed as a daily wager and was paid in all Rs.1,300=00 towards labour charges for doing labour work on repairs of water supply pipelines. Learned counsel for the appellant has invited our attention to the provisions of Section 57(1) of the Act and submitted that a person can be removed from the office of Sarpanch only if the State Government or its delegate is of the opinion that the Sarpanch has been guilty of :- (i) Misconduct in the discharge of his duties, or (ii) He is guilty of any disgraceful conduct, or (iii) He has abused his power, or (iv) Makes persistent defaults, or (v) Has become incapable of performing his duties and functions under the Act. 7. Learned counsel for the appellant would submit that none of the aforesaid five conditions indicated in the statutory provision is satisfied and therefore the impugned order dated 15th February 2010 passed by the District Development Officer, Rajkot and order dated 20th July 2010 confirmed by the Additional Development Commissioner as an appellate authority are not only contrary to the provisions of the Act, but also destructive of democracy at the grass-root level. 8. Learned counsels for the respondents defended the orders by submitting that both the authorities viz. District Development Officer and the Additional Development Commissioner have come to the conclusion that the appellant is guilty of misconduct and abuse of powers and the findings have been confirmed by the learned Single Judge in exercise of the powers under Article 227 of the Constitution of India and therefore the appeal before us deserves to be dismissed. 9. Section 57 of the Act, which mandates five conditions for removal from office reads as under :- “57. Removal from office. 9. Section 57 of the Act, which mandates five conditions for removal from office reads as under :- “57. Removal from office. The competent authority may remove from office any member of the panchayat, the Sarpanch or, as the case may be, the Upa-Sarpanch, thereof, after giving him an opportunity of being heard and giving due notice in that behalf to the panchayat and after such inquiry as it deems necessary, if such member, Sarpanch, or, as the case may be, Upa-Sarpanch has been guilty of misconduct in the discharge of his duties or of any disgraceful conduct or abuses his powers or makes persistent default in the performance of his duties and his duties and functions under this Act. The Sarpanch or, as the case may be, the Upa-Sarpanch, so removed may at the discretion of the competent authority also be removed from the membership of the panchayat.” On close reading of the provisions of Section 57, it appears that a mere irregularity or even an illegality in discharge of duties or causing loss to the Gram Panchayat does not by itself empower the State Government or its delegate to remove a Sarpanch from the elected office. There must be a finding supported by evidence to show that the concerned Sarpanch has been guilty of misconduct in discharge of his duties or of his disgraceful conduct or is incapable of performing his duties under the Act persistently. We take notice of the fact, more particularly, considering the nature of the charges levelled against the appellant that the authorities are equating misconduct or disgraceful conduct or persistent defaults to that with dereliction of duty. There is a vast difference between 'misconduct in the discharge of duties' and 'dereliction of duty'. Again, at the cost of repetition, we say that the charges as levelled against the appellant and said to have been proved are not of such a nature which can be termed as misconduct in the discharge of duties or disgraceful conduct. Apparently, it is not a case of persistent default in the performance of duties. 11. Section 57 does not speak about dereliction of duty. Misconduct is a violation of definite law. Dereliction of duty or carelessness is an abuse of discretion under a definite law. Misconduct is a forbidden act whereas dereliction of duty is forbidden quality of an act and is necessarily indefinite. 11. Section 57 does not speak about dereliction of duty. Misconduct is a violation of definite law. Dereliction of duty or carelessness is an abuse of discretion under a definite law. Misconduct is a forbidden act whereas dereliction of duty is forbidden quality of an act and is necessarily indefinite. However, lack of efficiency, failure to attain the highest standard of administrative ability while holding a public post or office like Sarpanch would not by themselves constitute misconduct. Person may be negligent in performance of duty and a lapse in performance of duty or error of judgment in evaluating a developing situation, may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to the negligence would be such as to the repairable or so heavy that the degree of culpability would be very high. 12. In a recent pronouncement of the Hon'ble Supreme Court in the matter of Sharda Kailash Mittal v. State of MP, reported in 2010 (1) GLH 744 while considering the analogous provision under the Madhya Pradesh Municipalities Act where the case was of removal of President, the Hon'ble Supreme Court in paragraphs 18 and 19 has observed as under:- “18. For taking action under Section 41-A for removal of President, Vice-President or Chairman of any Committee, power is conferred on the State Government with no provision of any appeal. The action of removal casts a serious stigma on the personal and public life of the concerned office bearer and may result in his/her disqualification to hold such office for the next term. The exercise of power, therefore, has serious civil consequences on the status of an office bearer. There are no sufficient guidelines in the provisions of Section 41-A as to the manner in which the power has to be exercised, except that it requires that reasonable opportunity of hearing has to be afforded to the office-bearer proceeded against. Keeping in view the nature of the power and the consequences that flows on its exercise it has to be held that such power can be invoked by the State Government only for very strong and weighty reason. Such a power is not to be exercised for minor irregularities in discharge of duties by the holder of the elected post. Keeping in view the nature of the power and the consequences that flows on its exercise it has to be held that such power can be invoked by the State Government only for very strong and weighty reason. Such a power is not to be exercised for minor irregularities in discharge of duties by the holder of the elected post. The provision has to be construed in strict manner because the holder of office occupies it by election and he/she is deprived of the office by an executive order in which the electorate has no chance of participation.” “19. In the present case, the actions of the appellant, even if proved, only amount to irregularities, and not grave forms of illegalities, which may allow the State Government to invoke its extreme power under Section 41.” 13. In the case of Tarlochan Dev Sharma v. State of Punjab and Ors., reported in (2001) 6 SCC 260 : (2001) AIR SCW 2689, the Hon'ble Supreme Court while dealing with the removal of a President of the Council under Punjab Municipal Act, 1911, held in Paragraph 6 as under: "6. In a democracy governed by rule of law, once elected to an office in a democratic institution, the incumbent is entitled to hold the office for the term for which he has been elected unless his elections set aside by a prescribed procedure known to law... Removal from such an office is a serious matter. It curtails the statutory term of the holder of the office, a stigma is cast on the holder of the office in view of certain allegations having been held proved rendering him unworthy of holding the office which he held." In Paragraph 11 the Hon'ble Supreme Court has further observed as under: "11. A singular or casual aberration or failure in exercise of power is not enough; a course of conduct or plurality of aberration or failure in exercise of power and that too involving, dishonesty of intention is...The legislature could not have intended the occupant of an elective office, seated by popular verdict, to be shown exit for a single innocuous action or error of decision." 14. We are of the view that on the basis of the material on record and the findings recorded by the authorities under the Act and the findings recorded by the learned Single Judge in his order dated 15th September 2010, it is not possible to hold that the case of the appellant – original petitioner falls within the ambit of Section 57 of the Act. So far as order of the learned Single Judge is concerned, the learned Single Judge has proceeded solely on the footing that as both the authorities under the Act have found the appellant guilty of misconduct, no interference was necessary. Except this, there is no other independent finding in this regard by the learned Single Judge. We have also noticed that the learned Single Judge, in its judgment and order, has observed that the charges include misappropriation of funds of the Gram Panchayat. We do not find any such charge of misappropriation in the show-cause notice. Even the affidavit-in-reply filed by the District Development Officer – respondent no.2 does not speak about any misappropriation. All that has been stated in the affidavit-in-reply is that certain written complaints were received against the appellant from the villagers, alleging certain irregularities and financial misappropriation. However, we do not find any charge of misappropriation. Besides, we are of the view that all the charges which have been levelled and said to have been established concern the entire body of the Gram Panchayat. For example, to say that the Sarpanch has been negligent in not removing the encroachments made upon the Government land or 'gauchar' land or has been negligent in proper implementation of any Government scheme, then it is to say that as if the Sarpanch, as the head of the Gram Panchayat, is the only person responsible, in such matters. If at all any liability has to be fastened, it has to be fastened on the body as a whole, which includes other members of the Panchayat also. Powers under Section 57(1) of the Act cannot be exercised in such an arbitrary manner and that too on such accusations. 15. For the reasons recorded above, we are left with no other option but to disturb the order dated 15th September 2010 passed by the learned Single Judge in Special Civil Application No.10991/2010. 16. Powers under Section 57(1) of the Act cannot be exercised in such an arbitrary manner and that too on such accusations. 15. For the reasons recorded above, we are left with no other option but to disturb the order dated 15th September 2010 passed by the learned Single Judge in Special Civil Application No.10991/2010. 16. The order dated 15th February 2010 passed by respondent No.2 – District Development Officer, Rajkot, and the order dated 20th July 2010 passed in appeal by the Additional Development Commissioner are quashed and set aside. The order dated 15th September 2010 passed by the learned Single Judge in Special Civil Application No.10991/2010 is also quashed and set aside and we allow Special Civil Application No.10991/2010. The appellant – original petitioner is allowed to resume his office of Sarpanch.” 15. In view of the above dictum of law, the petitioner could not have been removed from the post of Sarpanch under the provisions of Section 57(1) of the Act, 1993 by the respondent-authorities in relation to the allegations leveled in the show-cause notice dated 10.04.2018. A mere irregularity or even an illegality in discharge of duties or causing loss to the Gram Panchayat does not by itself empower the State Government or its delegate to remove a Sarpanch from the elected office. There must be a finding supported by evidence to show that the concerned Sarpanch has been guilty of misconduct in discharge of his duties or of his disgraceful conduct or is incapable of performing his duties under the Act,1993 persistently. Considering the nature of the charges levelled against the petitioner, it is apparent that the respondent authorities are equating persistent defaults to that with dereliction of duty. There is a vast difference between 'misconduct in the discharge of duties' and 'dereliction of duty'. The charges as levelled against the petitioner which are said to have been proved are not of such a nature which can be termed as misconduct in the discharge of duties or disgraceful conduct. Apparently, it is not a case of persistent default in the performance of duties, more particularly when the cause mentioned in the of show cause notice is not existing on removal of encroachment by the petitioner. 16. In the circumstances, the petition deserves to be allowed and is accordingly allowed. The impugned order dated 26.11.2019 passed by the respondent no. Apparently, it is not a case of persistent default in the performance of duties, more particularly when the cause mentioned in the of show cause notice is not existing on removal of encroachment by the petitioner. 16. In the circumstances, the petition deserves to be allowed and is accordingly allowed. The impugned order dated 26.11.2019 passed by the respondent no. 1 in appeal No.61/2019 is hereby quashed and set aside. The petitioner is allowed to resume his office of Sarpanch. However, it is made clear that the respondent-authorities are at liberty to initiate fresh proceedings in accordance with law and all the contentions raised by the respondent-authority with regard to the encroachment made by the brother and other relatives of the petitioner are kept open and the same are not considered while allowing this petition. 17. Rule is made absolute to the aforesaid extent with no order as to costs.