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2020 DIGILAW 990 (GUJ)

Mukeshbhai Aatmaram Patel v. State Of Gujarat

2020-12-22

BIREN VAISHNAV

body2020
JUDGMENT : 1. Heard Mr. Vikas Nair, learned advocate for Mr. Nimesh Patel, learned advocate for the petitioner, Mr Ishan Joshi, learned AGP for respondents no. 1, 2 and 4, Ms. Sejal Mandavia, learned advocate for the respondent no. 3 and Ms. Neha M. Kayastha, learned advocate for the respondent no. 5. 2. In this petition, filed under Article 226 of the Constitution of India, the petitioner has challenged the order dated 03.03.2020 passed by the respondent no. 2 – Development Commissioner, Gandhinagar, confirming the order dated 26.08.2019 passed by the District Development Officer, Mehsana by which the petitioner has been removed from the office of the Sarpanch of the Langhnaj Gram Panchayat under the provisions of Section 57(1) of the Gujarat Panchayats Act, 1993. 3. Facts in brief are that the petitioner was elected as Sarpanch of the Langhnaj Gram Panchayat in 2016. It is his case that certain development works were being carried out on gauchar land bearing survey nos. 2525 and 283 for the purposes of development of a lake. Since there were trees on the land, on 26.02.2018, permission from the Mamlatdar, Mehsana – respondent no. 4 was obtained to cut down 469 trees on the property. The contract for tree-felling was given to one Shri Kanuji Khodaji Thakore. It appears that due to some negligence on the part of the labourers of the contractor, the labourers cut down 3 trees more than the required number and therefore a case was registered against the petitioner and the contractor under the provisions of The Saurashtra Felling of Trees (Infliction of Punishment) Act, 1951 (hereinafter referred to as 'the Act of 1951'). By an order dated 31.12.2018, the petitioner and the contractor under the tree-felling act were fined and imposed a penalty of Rs.30,000/- each. Aggrieved by the order, the petitioner filed an appeal before the Collector, Mehsana which also stood dismissed. 3.1 It appears that during the pendency of the appeal, the District Development Officer, on 08.02.2019, issued a show cause notice to the petitioner interalia stating that when a contract was given to fell 469 trees, the contractor's labourers without permission cut 3 other trees which resulted in loss of tree cover. 3.1 It appears that during the pendency of the appeal, the District Development Officer, on 08.02.2019, issued a show cause notice to the petitioner interalia stating that when a contract was given to fell 469 trees, the contractor's labourers without permission cut 3 other trees which resulted in loss of tree cover. According to the District Development Officer, the petitioner failed to remain present at the site to supervise treefelling and therefore he had committed misconduct and was therefore liable to be removed as a Sarpanch of the Langhnaj Gram Panchayat. In the perception of the District Development Officer, the petitioner was guilty of misconduct in discharge of duties, had committed disgraceful conduct and abused his power and therefore deserved to be removed as a Sarpanch. 3.2 The petitioner replied, pursuant to which, the District Development Officer by an order dated 26.08.2019 in exercise of powers under section 57(1) of the Gujarat Panchayats Act, 1993 removed the Sarpanch. On an appeal to the Development Commissioner, the Development Commissioner by an order dated 03.03.2020 confirmed the order of removal. 4. Mr. Vikas Nair, learned advocate for the petitioner would submit that the contractor in discharge of his contract had removed three trees which ought not to have been removed. The allegation in the show cause notice that the petitioner ought to have remained present and in failing to do so the petitioner had committed misconduct, was not a circumstance which would warrant exercise of powers under Section 57 of the Gujarat Panchayats Act, 1993. 4.1 Mr. Nair, learned advocate for the petitioner would further submit that action was taken against the petitioner in accordance with the provisions of The Saurashtra Felling of Trees (Infliction of Punishment) Act, 1951 for cutting three additional trees and the petitioner had paid a fine of Rs.30,000/-. The aspect of cutting of additional trees and the failure of the petitioner to remain present and prevent such cutting would not be such a failure which would constitute misconduct in discharge of his duties, disgraceful conduct, abuse of power or persistent default in discharge of duties as a Sarpanch to warrant removal of the petitioner from the post of Sarpanch on which he was duly elected. 4.2 Mr. 4.2 Mr. Nair, learned advocate for the petitioner would submit that it is not the case of the respondents that the petitioner was well within his knowledge that the trees for which permission was not sought had been cut intentionally for the personal gain of the petitioner and it was not even the case of the District Development Officer that it was so done. He would therefore submit that it was certainly not a case of removal in exercise of powers under Section 57(1) of the Gujarat Panchayats Act, 1993. 4.3 Mr. Nair would further submit that even the respondent no. 5 who was a member of the Panchayat was aware of this tree-felling and therefore if anybody was to be held responsible it was the collective responsibility of the Panchayat and due action under Section 253 of the Gujarat Panchayats Act, 1993 ought to have been taken rather than fastening the liability individually on the petitioner. 4.4 Mr. Nair, learned advocate for the petitioner would rely on a decision of this court in Geetaben vs. State of Gujarat and Others rendered in Special Civil Application No. 18886 of 2014 dated 17.03.2015. He would submit that it was not a conduct which would warrant removal under Section 57 of the Gujarat Panchayats Act, 1993. Mr. Nair would also rely on a decision of this court in the case of in the case of Dipakbhai Mohanbhai Patel vs. A.S. Patel and others reported in 2009(3) GLR 2167 to submit that even otherwise it was the collective responsibility of the Panchayat and not the petitioner. 5. Mr. Ishan Joshi, learned AGP would support the findings of the Development Commissioner and submit that the appeal was rightly dismissed. 6. Ms. Sejal Mandavia, learned advocate for the respondent District Development Officer would submit that it certainly was a case warranting invocation of powers under Section 57(1) of the Gujarat Panchayats Act, 1993. She would submit that the petitioner was convicted of an offence under the Act of 1951. It was a disgraceful conduct inasmuch as the petitioner failed to provide appropriate supervision while the tree-felling was going on. It was certainly an irregularity which warranted removal of the Sarpanch. She would submit that the petitioner was convicted of an offence under the Act of 1951. It was a disgraceful conduct inasmuch as the petitioner failed to provide appropriate supervision while the tree-felling was going on. It was certainly an irregularity which warranted removal of the Sarpanch. She would submit that it was apparent that it can be said that there was collusion on the part of the contractor and the petitioner and that the petitioner has misused his post and misappropriated the money. 7. Ms. Neha Kayastha, learned advocate for the respondent no. 5 on the basis of whose complaint the petitioner was removed would rely on an affidavit filed by respondent no. 5 and submit that the cutting of trees was intentional. It is not open for the petitioner to contend that it was because of the mistake of the labourers that the trees were cut. The petitioner ought to have remained personally present and being the head of the panchayat it was his primary responsibility to take care of the property of the panchayat. She would submit that the order granting permission specifically mentioned that no tree for which there was no permission would be cut. In the appeal against order of penalty, the petitioner had lost and therefore he was rightly removed as the Sarpanch of the panchayat. 8. Having heard learned advocates for the respective parties and having considered the submissions, perusal of the legal provision i.e. Section 57 of the Gujarat Panchayats Act, 1993 would indicate that the competent authority may remove from office any member of the panchayat, or the Sarpanch or as the case may be, the Up-Sarpanch if the Sarpanch, as in the present case has been guilty of misconduct in discharge of his duties or any disgraceful conduct or abuses his powers or makes persistent default in the performance of his duties or has become incapable of performing his duties and functions under this Act. 8.1 Perusal of the show cause notice would indicate that at best the allegation against the petitioner was that while pursuant to a contract given for tree-felling, the contractor with his labourers was doing the task of felling trees, through inadvertence the labourers cut down three trees which were not part of the 469 trees to be cut. 8.1 Perusal of the show cause notice would indicate that at best the allegation against the petitioner was that while pursuant to a contract given for tree-felling, the contractor with his labourers was doing the task of felling trees, through inadvertence the labourers cut down three trees which were not part of the 469 trees to be cut. The allegation against the petitioner is that he was not present at the site where the treefelling was on and therefore his conduct was disgraceful or that he had abused his powers. 8.2 It is apparently clear that for lapse on the part of the panchayat in felling trees which were otherwise not to be cut, the petitioner was inflicted with the penalty of Rs.30,000/- under the relevant provisions of Act, 1951. An appeal before the authorities failed and a revision appears to be pending. Be that as it may. By mere lapse on the part of the petitioner in preventing cutting down of 3 trees of the panchayat would not in itself warrant invoking powers under Section 57(1) of the Gujarat Panchayats Act, 1993 on the ground of the conduct being disgraceful or that he has abused his powers or that there is persistent default in performing of his duties. 9. In this context it will be in the fitness of things to reproduce relevant paragraphs of the decision in the case of Geetaben (supra) and the same read as under: “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. 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. 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. 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. 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 v. 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. 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 Vs. State of Punjab and Others, 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. 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. 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. 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 Vs. State of M.P. and Others, 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. 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." (emphasis supplied) 31. As stated by the Supreme Court in Sharda Kailash Mittal Vs. State of M.P. and Others, the power or removal can be invoked only for strong and weighty reasons. A democratically elected Sarpanch ought not to be removed by exercise of powers by the respondent authorities for flimsy reasons, as the power conferred upon the respondents under Section- 57(1) of the Act is drastic in nature. The very nature of the power casts an obligation upon the respondent authorities to exercise it cautiously and with circumspection, and not at the drop of a hat. 32. In the present case, after considering the entirety of the material on record, this Court is of the firm view that the exercise of power of removal of the petitioner from the post of Sarpanch by respondent No. 2, as confirmed by respondent No. 1, is not in consonance with the provisions of Section-57(1) of the Act. In fact, the charge against the petitioner has no nexus to the grounds mentioned in the aforesaid provision of law. 33. For the aforestated reasons, the impugned order dated 18.10.2014, passed by respondent No. 2 and the order dated 16.12.2014, passed by respondent No. 1, are hereby quashed and set aside. Consequently, the petitioner is directed to be reinstated as the Sarpanch of Gram Panchayat Kadadara, forthwith. 34. The petition is all owed, in the above terms. Rule is made absolute, accordingly. There shall be no orders as to costs. Direct service of this order is permitted.” 10. Consequently, the petitioner is directed to be reinstated as the Sarpanch of Gram Panchayat Kadadara, forthwith. 34. The petition is all owed, in the above terms. Rule is made absolute, accordingly. There shall be no orders as to costs. Direct service of this order is permitted.” 10. What is therefore evident from the nature of allegations against the petitioner viz-a-viz the materials on record is that it is certainly not a case where provisions of Section 57 would stand attracted. Though the affidavit-in-reply goes beyond the content of the order by suggesting that the petitioner colluded with the contractor and misused and misappropriated the funds, there is nothing of such allegation in the show cause notice or in the order of the District Development Officer or in the order confirmed by the Development Commissioner. There is no allegation against the petitioner that he by virtue of the act of not preventing felling of three trees did so for his own advantage or that he did not follow a particular procedure. It is not the case of the panchayat that it was done for his personal gains or with a view to abuse the powers vested in him. In other words, the materials on hand even if taken as true on their face value, they at the most would suggest a case of supervisory negligence. Therefore, in the opinion of this court such allegations cannot be put at par with misconduct or a disgraceful conduct or an abuse of power or default in the performance of duties as envisaged in Section 57(1) of the Gujarat Panchayats Act, 1993. 11. Accordingly, the petition is allowed. The order dated 03.03.2020 passed by the respondent no.2 and the order dated 26.08.2019 passed by respondent no. 3 removing the petitioner as Sarpanch under the provisions of Section 57(1) of the Gujarat Panchayats Act, 1993 are quashed and set aside. The petitioner shall be considered to be reinstated as the Sarpanch of the Langhnaj Gram Panchayat as if the order dated 26.08.2019 was not passed. Consequentially, even the order dated 03.03.2020 would not come in the way of the petitioner. The respondent no. 3 – District Development Officer shall comply with the order of reinstating the petitioner as the Sarpanch of the Langhnaj Gram Panchayat within three weeks from the date of receipt of the copy of this order. Rule is made absolute.