Research › Search › Judgment

Gujarat High Court · body

2021 DIGILAW 1034 (GUJ)

PATEL SHAILESHBHAI MADHAVLAL v. STATE OF GUJARAT

2021-11-18

BIREN VAISHNAV

body2021
JUDGMENT : 1. Heard Mr.Jigar Gadhvi learned advocate for the petitioners. Mr.Meet Thakkar learned AGP for the respondent nos.1 and 2, Ms.Sejal Mandavia learned advocate for the respondent nos.3 and 4 and Mr.Hemang S. Trivedi learned advocate for the respondent nos.5 to 15. 2. With the consent of the learned advocates for the respective parties, the matter is taken up for final hearing. Hence, RULE returnable forthwith. 3. Learned counsels for the respective respondents waive service of Rule. 4. In this petition under Article 226 of the Constitution of India, prayer of the petitioners is to quash and set aside the order dated 08.09.2021 passed by the Additional Development Commissioner and further to confirm the order passed by the District Development Officer, Mehsana, dated 01.06.2021. 5. Facts in brief are as under: 5.1 The respondent No.5 is the Sarpanch of the Piludara Village Panchayat. The respondent no.6 is the Upsarpanch of the Piludara Village Panchayat and the respondent nos.7 to 15 are the members of Piludara Village Panchayat. On 03.11.2017, one Backbone Construction Company requested the Gram Panchayat, Piludara for permission to excavate soil from Gauchar Land or a pond to enable it to use the same for laying of railway lines between Mehsana and Taranga. Pursuant to the application so made, the Gram Panchayat in its General Meeting on 14.11.2017 passed a unanimous resolution permitting the Company to excavate the soil from Gauchar land of revenue survey no.814, 632 and 660 after obtaining necessary permission from the District Collector and the Geology department and producing the same before the Gram Panchayat. It was further resolved that a proposal be sent by the Gram Panchayat to the District Collector, Mehsana. The respondent no.5 Sarpanch, the respondent no.6- Upsarpanch and the respondent nos.7 to 15 - members of the Panchayat were present in the meeting and supported the resolution. The resolution thereafter by a letter dated 15.11.2017 was sent to the District Collector, Mehsana. 5.2 Two members of the Gram Panchayat viz. one Govindbhai Patel and Mahendrabhai Parmar lodged a complaint on 23.11.2017 with the Taluka Development Officer that the contractor of the Backbone Company was excavating the land whereas the contractor’s dumper and Hitachi excavator was seized. Pursuant to the complaint so lodged, a raid was carried out by the Geology department, Mehsana on 25.11.2017. one Govindbhai Patel and Mahendrabhai Parmar lodged a complaint on 23.11.2017 with the Taluka Development Officer that the contractor of the Backbone Company was excavating the land whereas the contractor’s dumper and Hitachi excavator was seized. Pursuant to the complaint so lodged, a raid was carried out by the Geology department, Mehsana on 25.11.2017. An order was passed on 29.11.2017 directing the Company to pay an amount of Rs.2,84,670/- for unauthorized excavation of 4313.18 MTs of soil. A penalty of Rs.2 lakhs was also imposed aggregating to an amount of Rs.4,84,670/-. The amount was paid by the Company and the machinery was released. 5.3 A show cause notice was issued to the respondent nos.5 to 15 on 12.06.2019 under Section 57(1) of the Gujarat Panchayat’s Act, 1993 narrating the facts as stated herein above. The respondent nos.5 to 15 were asked to show cause as to why action be not taken against them for removal as Sarpanch, Upsarpanch and members respectively of the village panchayat. On a reply being filed by the respondents, by an order dated 01.06.2021, the District Development Officer, Mehsana, after hearing the parties, passed an order of removal of the respondent nos.5 to 15. Aggrieved by the order, the private respondents filed an appeal before the Development Commissioner, who by the order impugned in this petition dated 08.09.2021 upset the order of the District Development Officer and set aside the order of removal. Aggrieved by this order, the petitioners are here by way of this petition. 6. Mr.Jigar Gadhvi learned counsel appearing for the petitioners would submit that the allegations in the show cause notice would indicate that the respondent nos.5 and 6 as Sarpanch and Upsarpanch and the members respondent nos.7 to 15 had failed to discharge their duties as members and therefore appropriate action under Section 57 was rightly taken by the District Development Officer. 6.1 The next submission made by Mr.Jigar Gadhvi was that a unanimous resolution was passed on 14.11.2017 by the Piludara Village Panchayat. The Sarpanch, Upsarpanch and the respondent members had been signatories to this resolution. The resolution specifically stated that no excavation be made without seeking prior approval of the Collector and of the Geology Department. Knowing fully well that such permission was not taken the excavation proceeded and the Sarpanch, the Upsarpanch and the respondent members, had been guilty of misconduct in discharge of their duties. The resolution specifically stated that no excavation be made without seeking prior approval of the Collector and of the Geology Department. Knowing fully well that such permission was not taken the excavation proceeded and the Sarpanch, the Upsarpanch and the respondent members, had been guilty of misconduct in discharge of their duties. 6.2 Mr.Jigar Gadhvi would invite attention of this Court to the report of the Taluka Development Officer dated 23.10.2018. Relying on the report he would submit that the Taluka Development Officer has reported that one resident Manojkumkar Kantilal in his statement dated 19.09.2018 had categorically recorded that on 20.11.2017 he found the Sarpanch Jadiben (respondent no.5) and the Upsarpanch – (respondent no.6) present and helping the contractor excavating the Gauchar land, he would submit that having known of the fact that of excavation and having participated as members of the Panchayat with the resolution specifically stipulated permission of the collector which was not taken, as a body collectively, neither the Panchayat lodged any complaint against the Contractor nor take appropriate action against the contractor. This evidently made it clear that collectively the entire body of the Village Panchayat had failed to discharge its duties and the action of removal was rightly taken. 6.3 Mr.Jigar Gadhvi would assail the order of the Additional Development Commissioner on the ground that merely because the Backbone Company had paid the amount of Rs.4,84,670/-, it did not absolve the members of the Panchayat from their complicity of being participants in excavation being done illegally of the Gauchar land which was within the jurisdiction of the Panchayat and which as members as the body of the Panchayat they were responsible to take care of. 7. Ms.Sejal Mandavia learned counsel appearing for the District Development Officer and the Taluka Development Officer would support the order of the District Development Officer. Ms.Mandavia would submit that despite the fact that a resolution was passed by the members of the Panchayat as a body, and knowing fully that the excavation was carried out without permission and the fact that the Sarpanch and the Upsarpanch were present at the site, categorically exhibited the failure of the collective body of the Gram Panchayat. 8. Ms.Mandavia would submit that despite the fact that a resolution was passed by the members of the Panchayat as a body, and knowing fully that the excavation was carried out without permission and the fact that the Sarpanch and the Upsarpanch were present at the site, categorically exhibited the failure of the collective body of the Gram Panchayat. 8. Mr.Hemang S. Trivedi learned counsel for the respondents 5 to 15 would submit that after passing of the resolution, the entire responsibility was that of the Construction Company to comply with the conditions so stipulated in the resolution. The Geology department had carried out a raid. The fine was paid by the Company and therefore at best once the resolution was passed asking for the Company to take approval from the Collector, the Gauchar land being that in the control of the revenue’s highest authority in the District Collector, the members of the Gram Panchayat and the Sarpanch and the Upsarpanch could not be held responsible and powers under Section 57 could not be invoked to remove them as the Sarpanch, the Upsarpanch and the members of the Panchayat. Mr.Hemang Trivedi relied in support of his submissions on the following decisions: (I) Pankajbhai Hirabhai Patel v. State of Gujarat and others (Special Civil Application No.12825 of 2014 decided on 23.12.2014). Mr.Trivedi would rely on paragraph 10 of the decision to submit that when a unanimous resolution was passed by the Gram Panchayat, there cannot be invoking of the powers of Section 57 against the Panchayat. He would also rely on the observations of the Court wherein it was stated that looking to the nature of the allegations made against the respondents and if the allegations are not which relate to the discharge of functions as elected officers, no action under Section 57 ought to be taken against the respondents. (II) Mr.Trivedi would also rely on a decision in case of Harsukhbhai Gordhanbhai Hathwani v. State of Gujarat (Special Civil Application No.8744 of 1998) in support of his submission that no action can be taken against the Panchayat, Sarpanch and its members when circumstances as envisaged under Section 57 of the Act are not available. 9. (II) Mr.Trivedi would also rely on a decision in case of Harsukhbhai Gordhanbhai Hathwani v. State of Gujarat (Special Civil Application No.8744 of 1998) in support of his submission that no action can be taken against the Panchayat, Sarpanch and its members when circumstances as envisaged under Section 57 of the Act are not available. 9. Mr.Meet Thakkar learned Assistant Government Pleader would submit that the Additional Development Commissioner had found that once the amount of fine was paid, it did not warrant action under Section 57 of the Panchayat Act for removal. 10. Having considered the submissions made by the learned advocates for the respective parties and on the narration of facts what is evident from the chain of events is as under: (a) On 03.11.2017, for the purposes of implementation of the laying down of the railway line between Mahesana and Taranga, Backbone Construction Company asked for permission to excavate soil from the Gauchar land and ponds within the vicinity of the village panchayat. (b) On 14.11.2017, the respondents 5-15 as the body of the Piludara Panchayat resolved unanimously on the basis of that request to permit the Construction Company to excavate soil from land being old Survey No. 814 on a condition that prior approval of the Collector is obtained and so that of the Geology Department. (c) What was found was that a huge volume of soil, namely, 4313.18 metric tons of soil was excavated. (d) Reading the Report of the Taluka Development Officer dated 23.10.2018 would indicate that it was found that a large amount of soil was excavated. When the Geological Inspector carried out the raid. It was found that a lot of damage was done to the Gauchar land and pits were dug. The Report of the Taluka Development Officer would indicate that several trees of “Baaval” were cut, for which, the Mamlatdar had opined that the case under the Tree Felling Act be initiated against the Contractor. (e) One resident, Manojkumar Kantilal, was on the site on 20.11.2017. He found that the Sarpanch and the Upsarpanch were actively participating and helping the contractor in excavation. (e) One resident, Manojkumar Kantilal, was on the site on 20.11.2017. He found that the Sarpanch and the Upsarpanch were actively participating and helping the contractor in excavation. (f) Knowing fully well that a resolution was passed by the Body on 14.11.2017 which warranted that such excavation be made only after permission of the Collector and the Geology Department is obtained and the fact that the Geology Department on 25.11.2017 found illegal excavation, the collective failure at the hands of the Gram Panchayat’s body therefore was largely evident when though such a resolution was passed, consciously the same was being flouted by the Contractor with the knowledge of the entire body of the Panchayat. 11. From the aforesaid narration of facts what is evident is that it was a primary duty of the Gram Panchayat within whose vicinity the Gauchar land was situated to take care of the land. Particularly when they had passed a resolution unanimously permitting the Construction Company to excavate soil only after the permission of the Collector, when it was found on the basis of the raid conducted on 25.11.2017 that there was illegal excavation, the body promptly ought to have acted and taken action against the Contractor by lodging an appropriate complaint or informing the Collector about the breach, which it did not. More importantly both the Sarpanch and the Upsarpanch were on site at the time of excavation. 12. As far as decisions cited by the learned advocate Mr.Trivedi are concerned, these are in context of exercise of powers against the individual Sarpanch or Upsarpanch in discharge of his duties and the observations of the judgments so relied upon do not apply to the facts of the case. 13. For the aforesaid reasons, the petition is allowed. The order dated 08.09.2021 passed by the Additional Development Commissioner in Appeal No. 30 of 2021 is quashed and set aside. The order of the District Development Officer, Mahesana, dated 01.06.2021 removing the respondents Nos. 5 to 15 as Sarpanch, Upsarpanch and Members respectively is restored and confirmed. Consequential action of removing and complying with the order of the District Development Officer dated 01.06.2021 shall be taken within two weeks from the date of receipt of the certified copy of this order. 14. Mr.H.S.Trivedi, learned counsel appearing for the respondents Nos. 5 to 15 as Sarpanch, Upsarpanch and Members respectively is restored and confirmed. Consequential action of removing and complying with the order of the District Development Officer dated 01.06.2021 shall be taken within two weeks from the date of receipt of the certified copy of this order. 14. Mr.H.S.Trivedi, learned counsel appearing for the respondents Nos. 5 to 15 requests that the implementation and execution of this judgment be stayed for a period of two weeks so as to enable the respondents Nos. 5 to 15 to file an appeal. 15. Mr.Jigar Gadhavi, learned counsel for the petitioner, vehemently objects to this. 16. Looking to this controversy involved and on being informed that pursuant to the order of the Additional Development Commissioner, respondents Nos. 5 to 15 have already been reinstated and are holding the posts of Sarpanch, Upsarpanch and as Members, respectively of the Piludara Gram Panchayat, the implementation and operation of this order is stayed till 29.11.2021. Rule made absolute with no orders as to costs.