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Gujarat High Court · body

2020 DIGILAW 956 (GUJ)

Manubhai Punjabhai Makwana v. State Of Gujarat

2020-12-11

BIREN VAISHNAV

body2020
JUDGMENT : 1. In this petition, this Court while issuing notice, passed the following order on 14.7.2020. The order reads as under : “1. Heard Mr.Shyamal Bhimani learned advocate for the petitioner. 2. Under challenge in this petition are orders dated 07.11.2019 and 28.02.2020. 3. By an order dated 07.11.2019, the petitioner, in exercise of powers under Section 57 of the Gujarat Panchayats Act, 1993, has been removed as a Sarpanch. The order is so confirmed by the Appellate Authority. 4. According to Mr.Bhimani, of the 10 charges imputed against the petitioner, the authority has removed the petitioner as Sarpanch for five charges held to be proved. 5. Mr.Bhimani has relied on several decisions to submit that these charges are not of irregularities or illegalities that would warrant removal of the petitioner as Sarpanch. A separate paper-book of arguments placed before the Additional Development Commissioner and the District Development Officer are placed on record. 6. Mr.Bhimani learned advocate for the petitioner submits that pending the petition, the operation of the impugned orders be stayed. He submits that the order dated 07.11.2019 was served on the petitioner on 11.11.2019. An appeal was preferred immediately on 16.11.2019, which is also recorded in the order of the Additional Development Commissioner. He would submit that the appeal was taken up for hearing two months after it was registered. 7. Issue NOTICE to the respondents returnable on 04.08.2020.” 2. On 19.8.2020, the Court issued rule, making it returnable on 29.9.2020. The matter was taken up for final hearing today i.e. on 27th of November, 2020. 3. Heard Mr.Bhimani, learned counsel for the petitioner, Mr.I.G. Joshi, learned AGP for the respondent No.1 – State and Ms.R.V. Acharya, learned counsel for the respondent No.2. 4. Facts in brief are as under : The petitioner has filed this petition challenging the order of the Addl. Development Commissioner dated 28.2.2020 in Appeal No.77/2019. By the aforesaid order, the Addl. Development Commissioner confirmed the order of the District Development Officer, Ahmedabad dated 7.11.2019, by which, the District Development Commissioner removed the Sarpanch - the petitioner, in exercise of powers u/s.57(3) of the Gujarat Panchayats Act, 1993. The case of the petitioner is that one Baldev Devsinh Makwana made an application on 16.5.2018 making certain allegations against the petitioner of dereliction of duties as a Sarpanch. The case of the petitioner is that one Baldev Devsinh Makwana made an application on 16.5.2018 making certain allegations against the petitioner of dereliction of duties as a Sarpanch. Pursuant to that, the Taluka Development Officer, Viramgam carried out an inspection and submitted a report dated 25.6.2018. A show cause notice was issued to the petitioner on 6.7.2018 levelling as many as 10 allegations asking the petitioner to show cause as to why the petitioner should not be removed as a Sarpanch of the Thuleta Gram Panchayat. The Sarpanch by a reply dated 16.7.2018 furnished an explanation. On the basis of the explanation so furnished and hearing the petitioner, the District Development Officer, on 7.11.2019 passed an order holding that the allegations in the show cause notice namely allegation nos.1, 4, 6, 7 and 8 were proved and, therefore, the petitioner was removed as a Sarpanch of the Thuleta Gram Panchayat. The order of the removal was challenged by the petitioner before the Addl. Development Commissioner and by the impugned order dated 28.2.2020, the same was confirmed. 5. Mr.Bhimani, learned counsel for the petitioner would submit as under : - He would submit that the action of removing the petitioner as Sarpanch was misconceived, inasmuch as, the application by Shri Baldevsinh Makwana was politically motivated inasmuch as he being the cousin of the petitioner has lost the election of the Sarpanch. He could not digest the loss and therefore made an application to remove the present petitioner as Sarpanch of the Gram Panchayat. He would therefore submit that the action was malafide. He would further submit that the order of removal which was so confirmed by the Addl. Development Commissioner was without compliance of principles of natural justice inasmuch as the document i.e. the investigation report filed by the Taluka Development Officer was not given to the petitioner. He would rely on several decisions of the Supreme Court to submit that the action without giving a copy of the report would violate the principles of natural justice. Development Commissioner was without compliance of principles of natural justice inasmuch as the document i.e. the investigation report filed by the Taluka Development Officer was not given to the petitioner. He would rely on several decisions of the Supreme Court to submit that the action without giving a copy of the report would violate the principles of natural justice. Delving into the charges which were held to be proved against the petitioner, Mr.Bhimani would take the Court through the five charges which were held to be proved by the District Development Officer and submit as under: A. With regard to the charge that the petitioner had passed the budget without calling for a meeting of the Gram Panchayat, Mr.Bhimani would submit that he had not approved the budget and undertaken the work without formal approval. He would submit relying on sec. 116 of the Gujarat Panchayat Act that even if it was the case of the authority that the action of not passing the budget was done, the Sarpanch, could not be fastened with an individual liability because as per Section 116 of the Act, it casts a collective responsibility upon the Panchayat as a Body. He would further submit that the petitioner was a semi literate person and acted on compliance of the guidance given by the Talati-Cum-Mantri. Mr.Bhimani would rely on the decision in the case of Ravi Yashwant Bhoi v. Collector reported in 2012 (4) SCC, 407 to submit that at best it was a technical misconduct which would not warrant removal of the Sarpanch. B. With regard to charge no.4 that the petitioner had disbursed an amount without the work of remaining of pipeline being completed, Mr.Bhimani would submit that it is wrong to assume that the petitioner had misappropriated an amount of Rs.3,27,917/- by not laying down the pipelines. He would submit that it was the specific case of the petitioner that the payments were done on the estimates prepared and the work completion certificate. C. With regard to charge no.6, Mr.Bhimani would submit that the charge was regarding laying down of a road over a road which already existed and misappropriation therefore of an amount of Rs.2,41,736/-. This also according to the petitioner was done on the basis of a work completion certificate. C. With regard to charge no.6, Mr.Bhimani would submit that the charge was regarding laying down of a road over a road which already existed and misappropriation therefore of an amount of Rs.2,41,736/-. This also according to the petitioner was done on the basis of a work completion certificate. D. With regard to charge Nos.7 and 8 in the show cause notice which, were essentially the same of misutilization of grant for construction of a toilet on the basis of a false affidavit, Mr.Bhimani would submit that documentary evidence was produced for applying for pakka toilets, certificates were signed by the Talati-Cum-Mantri. As a signatory to the affidavit on the basis of he being a witness, he committed no misconduct because it was his case that he was assured by the deponents that the defects on the affidavit will be cured before being submitted for approval for pakka toilets. Mr.Bhimani relied on the decision in the case of Sharda Kailash Mittal v. State of Madhya Pradesh and others reported in 2010(2) SCC 319 . He relied on this decision on the basis of his submission that when there was no financial loss, the Sarpanch could not be removed in exercise of powers u/s.57(3) of the Act. He also relied on the decision in the case of Raysangbhai Ranchhodbhai Thakor v. State of Gujarat reported in 2011 SCC online GUJ, 2085. He would specifically rely on this decision to submit that the orders of the Addl. Development Commissioner were without reasons. In support of his submission that the orders have to be reasoned orders, Mr.Bhimani also relied on the decision in the case of Mukul Agrawal v. State of Uttar Pradesh reported in 2020(3) SCC 403. Reliance is also placed on the decision in the case of Dashrathlal Ishwarlal Patel v. State of Gujarat reported in 2013 SCC Online Guj. 834 (SCA No.7338/2012 dated 5.3.2013, Para 33 thereof) for his submission that if there were administrative lapses or irregularities in discharge of duties, it could not be said to be a disgraceful conduct so as to warrant removal from the elected post of a Sarpanch. In addition thereto, Mr. 834 (SCA No.7338/2012 dated 5.3.2013, Para 33 thereof) for his submission that if there were administrative lapses or irregularities in discharge of duties, it could not be said to be a disgraceful conduct so as to warrant removal from the elected post of a Sarpanch. In addition thereto, Mr. Bhimani also relied on the following decisions: (a) 2001(6) SCC 260 , Para 7, 11 & 16 (b) 2010(2) SCC 319 , Para 24, 25, 26 and 27 (c) 2012(4) SCC 407 , Para 11,12,13, 20 and 36 (d) LPA No.2576/2010 dated 31.3.2011 of Gujarat High Court, Para 7, 13, 14, 15 and 16 as reported in 2011 SCC Online Guj. 2085. (e) 2012 SCC Online Guj. 2497, Para 26 and 33 of SCA No.2750/2012. & (f) 2013 SCC Online Guj. 834, para 33, SCA No.7338/2012 dated 5.3.2013. 6. Mr.Ishan Joshi, learned AGP for the respondent – State would support the order of the Addl. Development Officer and submit that it was a reasoned order and this Court in exercise of powers under Article 226 of the Constitution of India ought not to interfere with such a decision. 7. Ms.Acharya, learned counsel appeared for the District Development Officer. She in support of her submission pressed into the service the affidavit in reply filed on behalf of the District Panchayat by the District Development Officer. She would submit that on the application of one Mr.Makwana, the Taluka Development Officer carried out an investigation. She would submit that the Investigation Report as annexed would indicate that the allegations against the petitioner were proved especially allegations 1, 4, 6, 7 and 8. She would also invite the attention of the Court to the reasonings of the Addl. Development Commissioner and submit that once the allegations have been held to be proved, no fault can be found with the order of the Development Commissioner as well as the District Development Officer. 8. Having heard learned counsels for the respective parties, it will be in the fitness of things to refer initially to the provisions of Sec.57 of the Act which talks about removal from office. 8. Having heard learned counsels for the respective parties, it will be in the fitness of things to refer initially to the provisions of Sec.57 of the Act which talks about removal from office. Reading of the Section would indicate that the competent authority may remove from office any member of the Panchayat, the Sarpanch or as the case may be, the Up-Sarpanch, after giving an opportunity of being heard and after such inquiry, if such Member, Sarpanch has been guilty of misconduct in discharge of his duties or any disgraceful conduct or abuses his powers or makes persistent default in performance of his duties and functions under this Act or has become incapable of performing his duties. It would therefore reveal that a Sarpanch as in the present case would invite removal not only if it is found that he is persistently defaulting in performance of his duties or functions, but also in cases where he has been found guilty of misconduct or abuses his powers as is found by the District Development Officer. 9. Perusal of the orders dated 7.11.2019 and 28.2.2020 would indicate that of the ten charges, five charges against the petitioner were held to be proved. 10. Charge 1 against the petitioner was that he had failed to pass the budget for the year 2017-18 without calling for any meeting. Perusal of the respondent's report dated 26.6.2018 would indicate that the budget for the year 2017-18 was presented for approval by the Taluka Development Officer on 4.1.2017. After approval the Taluka Development Officer returned the budget proposal on 5.2.2018 for enforcement. The Talati-Cum-Mantri gave the budget approval certificate on 5.4.2017. On perusal and examination of the record of the Taluka Development Officer, the District Development Officer found that there was no approval obtained from the Gram Panchayat and all the financial expenses were carried out and made out without the budget being approved. Sec.116(3) was not followed. 11. This obviously on the basis of the Taluka Development Officer's report indicates dereliction of the duty on the part of the petitioner as a Sarpanch of the Panchayat. It is an after thought to say that the petitioner is a semi-literate person and acted on the basis of Talati Cum Mantri. This is in the opinion of this Court not a valid defense. 12. It is an after thought to say that the petitioner is a semi-literate person and acted on the basis of Talati Cum Mantri. This is in the opinion of this Court not a valid defense. 12. Charge 4 pertains to the approval of expenses of Rs.4,50,000/- without even carrying out such works. In this also, when the report of the Taluka Development Officer is perused, it indicates that as per the 14th Finance Commission, for the year 2016-17 an amount of Rs.4,50,000/- was approved towards the estimate of making a pipeline for water. The petitioner on 17.3.2018 by Cheque No.559154 withdrew such amount. Approval was given for the works on 28.2.2018. No work order was issued by the office of the Taluka Panchayat. No valuation completion certificate was issued. The estimate works was of 1796 meters for a 90 mm PVC pipe which had to be laid down. It was found on investigation by the team of the Taluka Panchayat that only work worth 486 meters was done and there was no other work of laying down the pipeline. In other words, on the basis of the investigation report, it was found that a deficit of 1310 meters work was not done whereas the amount was fully withdrawn. This completely vindicates the stand of the District Development Officer holding that the petitioner had abused his powers as the Sarpanch. 13. Perusal of the charges 7 and 8 would indicate that when affidavits were filed by two persons on 8.2.2016 for standing for elections, they had testified that they had pakka toilets. Subsequently, on 8.12.2016, the same persons applied for construction of pakka toilets on the affidavits, the petitioner signed as a witness. In one case it was found that the deponent had died prior to the affidavit being filed. The defense of the petitioner was that the wife of the deceased had assured the petitioner that she would cure the defect before the affidavit was presented to the Talati-Cum-Mantri for approval of permission for pakka toilets. Mr.Bhimani would through the paper-book submit that the certificates had the signature of Talati-Cum-Mantri. This certainly is not a defense which can be believed when in his capacity as Sarpanch, he had certified as a witness an affidavit of a person who was dead in obtaining grants for construction of pakka toilets. 14. Mr.Bhimani would through the paper-book submit that the certificates had the signature of Talati-Cum-Mantri. This certainly is not a defense which can be believed when in his capacity as Sarpanch, he had certified as a witness an affidavit of a person who was dead in obtaining grants for construction of pakka toilets. 14. In the opinion of this Court, even these two charges read with charge 4 are enough to warrant the petitioner's removal as Sarpanch in exercise of powers u/S.57(3) of the Act. 15. Having therefore perused the orders of the Addl. Development Commissioner and that of the District Development Officers, I see no reason to interfere with the orders passed by the authorities below in exercise of powers under Article 226 of the Constitution of India, the petition is therefore dismissed with no order as to costs. Rule is discharged.