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2022 DIGILAW 1481 (GUJ)

Vikramsinh Samatsinh Chauhan v. State Of Gujarat

2022-10-20

SANDEEP N.BHATT

body2022
JUDGMENT : 1. The petitioner has challenged the orders impugned :- (i) dated 28.03.2022 passed by the Additional Development Commissioner, Gujarat State, Gandhinagar in Appeal No.67 of 2022 and (ii) dated 01.10.2021 passed by the District Development Officer, Panchmahalas under Section 57(1) of the Gujarat Panchayats Act, 1993, whereby the petitioner is removed from the post of Sarpanch. 2. Heard learned advocates for the respective parties. Rule. Learned advocates waive service of notice of rule on behalf of respective respondents. 3.1 Ms. Kruti M. Shah, learned advocate for the petitioner has submitted that the impugned orders are illegal, against the facts on record and without giving proper opportunity of defending the case and therefore, the same are required to be quashed and set aside. 3.2 She has further submitted that pursuant to the first show-cause notice dated 30.07.2021 issued by the District Development Officer, the petitioner has explained each and every allegations made in the said notice by his reply dated 09.08.2021 along with documentary evidence and the authority has withdrawn the said notice on the same day. 3.3 She has also submitted that the authority has issued another show-cause notice dated 13.09.2021 by making further serious allegations against the petitioner. She has submitted that no whisper of any allegations of the second show-cause notice, was there in the first show-cause notice. 3.4 She has submitted that the authority has, on one hand in the first show-cause notice, given finding that the petitioner has completed all the works within the expenditures provided and he has maintained all registers, voucher files, whereas on the other hand in the second show-cause notice, the very authority has given contrary reasons, which speaks volume about mala fide intention on the part of the authority itself. She has submitted that the entire proceedings are initiated under the political pressure as the wife of the present petition has contested the election as Apaksh candidate and therefore, keeping vengeance upon him and to bring pressure for withdrawal of the candidature of the wife of the petitioner, the entire proceeding has been initiated against the petitioner by the Authorities. 3.5 She has submitted that one of the grounds in show-cause notice is not connected with tenure of the petitioner in his office. 3.5 She has submitted that one of the grounds in show-cause notice is not connected with tenure of the petitioner in his office. She has submitted that this is not a case of financial loss to the Panchayat, as alleged by the Authorities in the show-cause notice, as the petitioner has produced all the documents along with bank statement to show that not a single penny of Panchayat funds has been misappropriated by the petitioner. She has submitted that it is an abuse of powers by the Authorities and therefore, the order removing the petitioner from the post of Sarpanch is beyond the scope of Section 57(1) of the Act. 3.6 In support of her arguments, she has relied upon the following judgments : (i) AIR 2011 Gujarat 159 – Vakatar Bhagvanjibhai Devabhai versus Additional Development Commissione (Paras : 8 to 14) (ii) 2011 (4) GLR 3130 – Raysangbhai Ranchhodbhai Thakor versus State of Gujarat (Paras : 10 to 15) (iii) Special Civil Application No.7748 of 2021 – Ashokbhai Kanubhai Mangroliya versus State of Gujarat (Para : 6) (iv) (2000) 2 GLR 222 – Kamlaben Rohitbhai Patel versus Additional Development Commissioner (Paras : 6 & 9) (v) 2002 (3) GLH 739 – Kanakbhai Narsangbhai Padhar versus State of Gujarat (Paras : 7 and 10) (vi) 2013 (2) GLR 1257 – Dashrathlal Ishwarlal Patel versus State of Gujarat (Paras : 15 to 33) (vii) 2009 (3) GLR 2167 – Dipakbhai Mohanbhai Patel versus K.S. Patel (Paras : 34 & 35) (viii) 1996 (2) GLR 2 – Laladhar Pragji versus State of Gujarat (Paras : 4 to 6) (ix) 1996 (2) GLR 349 – Udaysinh Shankersinh Zala versus S.D. Vadera, Additional Development Commissioner (Para : 3) (x) 2000 (1) GLR 32 – Harsukhbhai Gordhanbhai Hadvani versus State of Gujarat (Para : 5) 3.7 She has submitted that this petition may be allowed. 4.1 Per contra, Mr. Meet Thakkar, learned AGP for the State has submitted that the two authorities below have concurrently found that the petitioner has committed financial misappropriation of the funds of the Panchayat in the matter of payments for works. He has submitted that the petitioner has abused his position as Sarpanch. He has submitted that the authorities have rightly come to the conclusion and passed the impugned orders. He has submitted that the petitioner has abused his position as Sarpanch. He has submitted that the authorities have rightly come to the conclusion and passed the impugned orders. He has submitted that this Court may not interfere with the impugned orders in exercise of powers under Article 226 of the Constitution of India. 4.2 He has submitted that the petitioner has not maintained all the documents and/or registers in proper format and in proper way and not maintained at all. He has submitted that during the course of inspection, the authorities have found that the petitioner has not maintained the register of the work done by him during his tenure and therefore, it is not tallied with the work done by him vis-a-vis register vis-a-vis grant utilised by him in which public work. He has submitted that the authorities has observed that there are many public works which were not done by the petitioner. He has submitted that the petitioner was unable to produce the record/ documents which are required to be produced / maintained. He has submitted that the petitioner has not invited tenders and thereby committed breach of the financial rules, as observed by the authorities. He has submitted that the authorities have rightly passed the impugned orders. 4.3 In support of his arguments, he has relied upon the following judgment : 2015 AIJEL_HC 232647 – Motiben Desabhai Dhandhal versus State of Gujarat (Paras : 6 to 10) 4.4 He has submitted that this petition may be dismissed. 5.1 Mr. Tanmay Karia, learned advocate for respondent No.2 – Panchayat has vehemently opposed this petition and has submitted that proper opportunity was given to the petitioner to defend his case. He has submitted that the petitioner was given opportunity on 20.09.2021, 27.09.2021 and 30.09.2021 by the Authorities. He has submitted that the petitioner has given his reply on 30.09.2021. He has submitted that after considering the reply of the petitioner dated 30.09.2021, the Authorities have removed him vide order dated 01.10.2021. 5.2 He has further submitted that the first showcause notice dated 30.07.2021 was issued on the basis of the report of the Taluka Development Officer dated 23.07.2021 and second show-cause notice dated 13.09.2021 is issued on the basis of the reports of the Taluka Development Officer dated 09.09.2021 and 10.09.2021. 5.2 He has further submitted that the first showcause notice dated 30.07.2021 was issued on the basis of the report of the Taluka Development Officer dated 23.07.2021 and second show-cause notice dated 13.09.2021 is issued on the basis of the reports of the Taluka Development Officer dated 09.09.2021 and 10.09.2021. 5.3 He has submitted that when the work was inspected by the Authorities, the construction of Nala under the A.T.V.T. Scheme was not completed, which should be completed in time. He has submitted that there are discrepancies in the photographs produced by the petitioner, so also in maintaining the property register. 5.4 He has further submitted that the closing balance was shown as Rs.2,86,250/- against the amount of Rs.2,91,000/- credited in the account of the Panchayat and therefore, there is clear misappropriation of funds of the Panchayat. He has also submitted that there is no concrete proof produced by the petitioner regarding the expenditure incurred for COVID-19 Centre, mark distribution and sanitization work. He has submitted that the petitioner has been removed from the post of Sarpanch based on the charges levelled against him and therefore, no illegality can be said to have been committed by the Authorities. The Authority has therefore rightly used of powers under Section 57(1) of the Panchayat Act against the petitioner. 5.5 He has further submitted that there are disputed questions of fact in the present matter and therefore, in view of the catena of judgments of the Hon’ble Apex Court, this Court may not warrant interference. 5.6 He has submitted that this petition may be dismissed. 6.1 I have considered the submissions of the rival parties. I have also considered the contentions raised by the petitioner as well as by the respondents. I have also perused the record produced with the petition. I have also considered the affidavit in reply filed by the contesting respondent/s. Considering the same, it transpires that there are many irregularities in the work / procedure done by the petitioner. There are discrepancies in the statement prepared by the petitioner for the Gram Panchayat and the statement produced before the Authorities. It is a matter of record that the petitioner has not invited tender before purchasing particular items as per the rules. Further, it is an undisputed fact that the petitioner has not received any approval from the competent Authority under the Act for making more expenses than his powers. It is a matter of record that the petitioner has not invited tender before purchasing particular items as per the rules. Further, it is an undisputed fact that the petitioner has not received any approval from the competent Authority under the Act for making more expenses than his powers. 6.2 At this stage, it would be fruitful to refer to the provisions of Section 55 of the Act as under : “55. Executive functions of Sarpanch and Upa-Sarpanch : (1) Save as otherwise expressly provided by or under this Act, the executive power, for the purpose of carrying out the provisions of this Act and the resolutions passed by a village panchayat shall vest in the Sarpanch thereof who shall be directly responsible for the due fulfilment of the duties imposed upon the panchayat by or under this Act. In the absence of the Sarpanch his power and duties shall, save as may be otherwise prescribed by rules, be exercised and performed by the Upa-Sarpanch.1993 (2) Without prejudice to the generality of the foregoing provision:- (a) the Sarpanch shall- (i) preside over and regulate the meeting of the panchayat; (ii) exercise supervision and control over the acts done and actions taken by all officers and servants of the panchayat; (iii) incur contingent expenditure upto 1 [five hundred rupees] at any one occasion; (iv) operate on the fund of the panchayat including authorisation of payment, issue of cheques and refunds; (v) be responsible for the safe custody of the fund of the panchayat; (vi) cause to prepared all statements and reports required by or under this Act ; (vii) exercise such other powers and discharge such other functions as may be conferred or imposed upon him by this Act or rules made thereunder, (b) the Upa-Sarpanch shall- (i) in the absence of the Sarpanch preside over and regulate the meetings of the panchayat; (ii) exercise such of the powers and perform such of the duties of the Sarpanch as the Sarpanch may, from time to time delegate to him; (iii) in case the Sarpanch has been continuously absent from the village for more than fifteen days or is incapacitated to exercise the powers and perform the duties of the Sarpanch. (3) In the absence of both the Sarpanch and the Upa-Sarpanch, every meeting of the panchayat shall be presided over by such one of the members present as may be chosen by the meeting to be Chairman for the occasion. (4) Notwithstanding anything contained in clause (iv) of sub-section (2), no money shall be withdrawn from the fund of the panchayat except with the signature of the 2 [Sarpanch or a member of the panchayat authorized in that behalf by the panchayat, and the Secretary]. ” 6.3 This Court finds that in the present case, the petitioner is failed to discharge its duties as Sarpanch. There are many irregularities and/or discrepancies and/or misappropriation of funds. The Authority has issued notices to the petitioner for the same. The petitioner was given ample opportunity to defend the case. Lastly, he has filed his reply and considering the reply filed by the petitioner, the Authority has passed the order impugned. 6.4 From the findings of the appellant authority below, it transpires that the petitioner has misappropriated the funds of the Panchayat and the petitioner is failed to produce the concrete proof against the said allegations. Further, it transpires from the record that the petitioner has not taken necessary approval from the competent authority concerned before some higher expenditure done by him. Further, it transpires from the record that the petitioner has not done his duties according to the procedure/ rules. Further, the petitioner did not follow the accounting procedure before making expenditure. 6.5 The Authority has issued notice/s to the petitioner for all the irregularities, discrepancies and misappropriation of funds of the Gram Panchayat, taken into consideration his reply/explanation and passed the impugned order, in accordance with law. 6.6 At this stage, it is also relevant to keep in mind the ratio laid down by this Court in the case of Motiben Desabhai Dhandhal (supra), more particularly para : 9 thereof, which is as under : “9. As per above provisions, amongst other things, the Sarpanch is required to exercise supervision and control over the acts done and actions taken by all officers and servants of the panchayat; to operate on the fund of the panchayat including authorisation of payment, issue of cheques and refunds; to be responsible for the safe custody of the fund of the panchayat; to cause to be prepared all statements and reports required by or under this Act. From the above requirements with other function to be performed by the Sarpanch, it would clearly appear that the responsibilities and duties of Sarpanch are not simply to be present as Sarpanch but to see that all works of the Sarpanch are properly done and funds on such works are spent according to the norms for the financial matters of the Panchayat.” 6.7 The order impugned passed by the Authorities is just and proper and as per the law and therefore, does not require any interference by this Court. Further, it is not the case where this Court has to exercise its extra-ordinary jurisdiction under Article 226 of the Constitution of India. This petition therefore deserves to be dismissed. 7. There cannot be any dispute with regard to the law enunciated in the decisions of the Hon’ble Apex Court as well as this Court relied upon by the learned advocate for the petitioner, however, it cannot be helpful to the petitioner any further in view of the facts and circumstances of the present case, as those decisions are with regard to the cutting of trees, accounting procedure, roads under particular scheme, etc. The present case does not fall within the purview of these decisions with such facts. Therefore, the present petition deserves to be dismissed. 8. For the reasons recorded above, the present petition is dismissed. No order as to costs. Rule is discharged.