Excerpt:
The petition under Article 226 of Constitution was filed against the order dated 03.03.2020 issued by Respondent no.2, Development Commissioner, Gandhinagar approving such order passed by District Development Officer, Mehsana dated on 26.08.2019 wherein Petitioner has been removed from the post of Sarpanch of Langhnaj Gram Panchayat under Section 57(1) Gujarat Panchayats Act, 1993 in the case of Mukeshbhai Aatmaram Patel v. State of Gujarat.
Brief Facts:
The Petitioner was elected as Sarpanch of Langhnaj Gram Panchayat in 2016. During his tenure, certain development works were carried out on Gaucher land bearing survey number 2525 and 283 for construction of a lake. Further for such purpose, felling of trees was required to which the Petitioner undertook permission from Mamlatdar, Mehsana – Respondent no. 4 to cut down 469 trees on the property. The contract for tree felling was given to Shri Kanuji Khodaji Thakore. However, negligence on part of labourer resulted in cutting down 3 trees more than what was required and therefore, the case was registered against Petitioner and contractor under provision The Saurashtra Felling of Trees (Infliction of Punishment) Act, 1951. The order dated 31.12.2018, Petitioner and contractor were fined and imposed a penalty of Rs.30,000 each. The Petitioner aggrieved by such order filed an appeal before Collector, Mehsana which also stood dismissed.
During the pendency of the appeal, Respondent no.2, District Development Officer on 08.02.2019 sent a show-cause notice to Petitioner alongside, Petitioner remained absent at the site of trees felling for supervision and control and therefore, misconduct of Petitioner in discharging his duty made him liable to be removed as Sarpanch of the Langhnaj Gram Panchayat.
Consequently, Respondent no.2, with the order dated 26.08.2019 made the Petitioner liable for an offence punishable under Section 57(1) of Gujarat Panchayats Act,1993 (referred herein as this Act) removed him from the post of Sarpanch. Furthermore, the appeal to the Development Commissioner also confirmed the order of removal on 03.03.2020.
Arguments on behalf of the Petitioner:
The counsel pleaded before the Court that show-cause notice by Respondent mentioning the misconduct of Petitioner due to his absence at the site during trees felling cannot be a reasonable ground for making him liable for the removal of the Petitioner through exercising his power under section 57 of this Act. Moreover, felling of additional trees and failure of Petitioner presence which might have resulted in prevention of such cutting deserves not to be treated as misconduct of duties as Sarpanch to warrant removal of Petitioner from his post of Sarpanch.
Provided further there was no knowledge or intention on part of Petitioner for cutting down of additional trees for the motive of no personal gain or benefits. The Respondent no.5, member of panchayat knew about additional trees felling, therefore on such occasion there is the collective responsibility of Panchayat dealt with section 253 of this act ought to be taken rather than fixing liability upon the Petitioner.
He also took reference of the case, Geetaben vs. State of Gujarat and Others rendered in SCA No. 18886 of 2014 that there is no misconduct so grave enough to warrant removal of the Petitioner under section 57 of this Act and Dipakbhai Mohanbhai Patel vs. A.S. Patel and others 2009(3) GLR 2167 to prove that it was the collective responsibility of the Panchayat and not solely of the Petitioner.
Arguments on behalf of the Respondents:
The counsel for Respondent no.2, District Development Officer submitted before the Court that it was a case of a warrant for removal of the Petitioner by invoking the power guarantee under Section 57(1) of this Act. The Petitioner was negligent in exercising its duties for supervision and control at the site wherein cutting of trees were carried out. It can be well settled that there was a collision between Petitioner and contractor and consequently, Petitioner misused his post and misappropriated the money.
The counsel for Respondent no.5, member of the Panchayat stated that on the basis whose complaint removal of the Petitioner contended that cutting down of trees was intentional on part of petitioner and not because of mistake of labourers of the contractor. Furthermore, the Petitioner being head of the family entails primary responsibility to supervise and be present at the time of cutting down trees to which he substantially failed to do. In addition to this, permission was granted to the Petitioner to refrain from cutting trees not permitted by authority and therefore, appeal against penalty was rightly struck down leading to the removal of the Petitioner as Sarpanch.
Court’s Observation:
The Court critical analysed the provision of Section 57 of this Act which states that competent authority may remove from office any member of the Panchayat or Sarpanch as the case may be if Sarpanch is guilty of misconduct in discharging duties or abuse of power or default in performance for his duty or become incapable of functions and performance under this Act.
The Court took the reference of Geetaben (supra) contended that judgment of this case was fully applied to this present case in the sense that nine encroachment out of 17 has been made before the tenure of the Petitioner as Sarpanch. If the Respondent thought that the Petitioner being Sarpanch was solely responsible for such an incident then the Court considered that the Petitioner could not be held responsible for encroachment prior to his tenure as Sarpanch. Therefore, failure to remove unauthorised trespass by the Gram Panchayat could be termed as inefficiency and cannot be misconduct. Moreover, Section 105 of this Act confers power upon Panchayat to remove any obstruction and encroachment but does not confer exclusive powers or duty on Sarpanch to remove the encroachment, in other words, it is the collective responsibility of Gram Panchayat and not the sole responsibility of Sarpanch for any misconduct.
The Court also took reference of Dineshbhai Govabhai Makwana v. State of Gujarat and others (Supra), which emphasised on the writ jurisdiction of High Court under Article 226 to examine the case to prevent abuse of the process of law and secure complete justice but the present provision of Section 57(1) of this Act provides that such relevant power needs to be exercised with the reasonable ground and not undertaking minor irregularities in the discharge of his duty as Sarpanch.
The Supreme Court in Sharda Kailash Mittal v. State of Madhya Pradesh and Ors. held that the power of removal can only be invoked for strong and weighty reasons and in the present case, elected sarpanch need not be removed for minor allegation with no reasonable ground as the power provided under Section 57(1) of this Act is drastic in nature which requires caution and care.
Court’s Decision:
The Court concluded that Petitioner’s removal from the elected post of Sarpanch by Respondent no.2 and thereby confirmed by Respondent no.1 runs contrary to the provision of Section 57(1) of this Act with no reasonable ground as required under the law. The allegation cannot be put at par with misconduct or disgraceful conduct or an abuse of power or default in the performance of duties as provided under Section 57(1) of this Act. Therefore, the Petitioner is required to be reinstated in the post of Sarpanch of the Langhnaj Gram Panchayat and orders passed by respondent authority are set aside and quashed.
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