Vamja Jagrutiben Amrutbhai vs State Of Gujarat
2021 Latest Caselaw 1648 Guj

       C/SCA/16952/2020                                    JUDGMENT




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

       R/SPECIAL CIVIL APPLICATION NO. 16952 of 2020


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BHARGAV D. KARIA

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1    Whether Reporters of Local Papers may be allowed
     to see the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy
     of the judgment ?

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                      VAMJA JAGRUTIBEN AMRUTBHAI
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MR BHARAT T RAO(697) for the Petitioner(s) No. 1
MR KANVA ANTANI, AGP (99) for the Respondent(s) No. 1
DS AFF.NOT FILED (N)(11) for the Respondent(s) No. 2,3,4
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 CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                           Date : 04/02/2021
                           ORAL JUDGMENT

1. Heard learned advocate Mr. Bharat Rao for the petitioner and learned Assistant Government Pleader Mr. Antani for the respondent-State through video conference.

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2. Rule returnable forthwith. Learned Assistant Government Pleader Mr. Antani waives service of notice of rule on behalf of respondent nos. 1 and 2. Respondent Nos. 3 and 4 are formal parties and therefore, no need to serve the notice of rule upon them.

3. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for quashing and setting aside the order dated 10.12.2020 passed by respondent No.2- Development Commissioner.

4. Brief facts of the case are as under:

The petitioner is an elected Sarpanch of village Ramalpur, Tal. Halvad Dist. Morbi since the year 2017. It is the case of the petitioner that in the year 2018, when two members of the Gram Panchayat did not remain present for consecutive four months in the meeting, a complaint was made for declaring the post of two members as vacant. It appears that one Punabhai Devabhai Rathod wrote a letter dated 01.06.2018 to the Collector and District Development Officer and Taluka Development Officer that two members of the Panchayat are not remaining present and therefore, they have ceased to be members in view of section 58 of the Gujarat Panchayat Act, 1993 ['the Act, 1993' for short]. The Development Commissioner therefore, by letters dated 18.08.2018 and

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17.11.2018 directed the District Development Officer to take steps in accordance with law. The District Development Officer wrote a letter to the Taluka Development Officer, Halvad to make inquiry under section 58 of the Act, 1993. The Collector, Morbi also intimated the District Development Officer to look into the matter vide letter dated 08.08.2018. Therefore, District Development Officer again by letter dated 17.11.2018 requested the Taluka Development Officer to look into the matter.

5. It is the case of the petitioner that the Talati-cum-Mantri of the Gram Panchayat submitted a report on 28.08.2018 with regard to continuous absence of one Smt. Pratikshaben Ghanshyambhai Vamja in four meetings of the Panchayat. Gram Panchayat also passed a resolution by majority that post of both the members be declared vacant. However, no steps were taken either by the Taluka Development Officer or by the District Development Officer to fill up the vacancies. Therefore, Punabhai Rathod made a complaint on 11.11.2019 to District Development Officer, Morbi for not taking any action under section 58 of the Act, 1993 by Taluka Development Officer. The District Development Officer therefore, by letter dated 27.11.2019, called upon the TDO to submit a report. The Development Commissioner also informed the DDO by letter dated 04.12.2019 to take steps in the matter in accordance with law.

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6. It is the case of the petitioner that as no steps were taken, Punabhai Rathod filed Special Civil Application No. 1959 of 2020 before this Court with a prayer to declare that in view of the continuous absence for four months in the meetings of the Panchayat by two members, they have ceased to be member. This Court, by order dated 16.03.2020, disposed of the petition with a direction to the panchayat to inform to the member about the cessation of the membership as provided under section 58(b) of the Act, 1993. It is the case of the petitioner that Panchayat had already passed a resolution on 10.08.2018 with regard to the vacancy created by absence of two members.

7. It is the case of the petitioner that under section 116 of the Act,1993, annual budget of the Panchayat is to be prepared on or before 15th December of each year and not later than 31 st December. Accordingly, the Gram Panchayat prepared the budget which was forwarded by Talati to Taluka Panchayat and after scrutinizing the same, Taluka Panchayat returned the same with observations/recommendations. It is the case of the petitioner that because of declaring seats of two members as vacant, Talati-cum-Mantri in connivance with the members of the Gram Panchayat of the other group did not allow to proceed with the meeting which was called on 31.12.2019 and therefore the budget could not be approved by the Panchayat in the meeting before 31.12.2019.

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8. It is the case of the petitioner that because of the non-approval of the budget by the Panchayat, Talati-cum-Mantri by letter dated 27.03.2020, called for the meeting for the Panchayat to discuss the budget proposal.

9. Thereafter, the meeting was called on 22.05.2020 for budget followed by meeting on 30.05.2020 wherein it was decided that, two persons viz. Pratikshaben Vamja and Kiritbhai Mahadevbhai Varmora should not be allowed to cast their votes and should not be allowed to remain present in the meeting as their seats were declared vacant.

10. A complaint was also made against the Talati-cum- Mantri by the Gram Panchayat on 26.05.2020 before the Taluka Development Officer. An explanation was called for by the Taluka Development Officer. It appears that the Division Bench of this Court granted stay against the order dated 16.03.2020 passed by this Court.

11. It appears that the Development Commissioner issued a show-cause notice dated 21.08.2020 under section 253 of the Act, 1993 as the Panchayat failed to discharge its duties conferred under section 106 of the Act,1993 and has not forwarded the budget for scrutiny before Taluka Panchayat before 31.12.2019 on the ground that members of the Panchayat did not approve the said budget and therefore

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Panchayat failed to carry out obligation under section 116 of the Act ,1993.

12. The petitioner filed Special Civil Application No. 11102 of 2020 before this Court challenging the show-cause notice issued by the Development Commissioner. This Court, vide order dated 09.09.2020, disposed of the Special Civil Application No. 11102 of 2020 by directing the Development Commissioner to hear the petitioner by granting time to file reply to the show-cause notice. The Development Commissioner, by impugned order dated 10.12.2020 under section 253 of the Act, 1993 ordered for dissolution of the Panchayat. The Development Commissioner, after recording the facts in the order and after considering the submissions made by the petitioner held that notice for dissolution was issued to the Panchayat and therefore, the explanation tendered by the petitioner cannot be considered as explanation given by the Panchayat as it amounts to personal explanation of the petitioner and accordingly, rejected the explanation tendered by the petitioner on behalf of the Panchayat.

13. Learned advocate Mr. B.T.Rao for the petitioner submitted that the impugned order passed by the Development Commissioner is contrary to the order passed by this Court in Special Civil Application No. 11102 of 2020 whereby, the Development Commissioner was directed to give an opportunity of hearing to the petitioner on behalf of the

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Panchayat and therefore, it cannot be said that the petitioner has tendered explanation pursuant to the show-cause notice in her individual capacity as held by the Development Commissioner.

14. On the other hand, learned AGP Mr. Antani submitted that the Development Commissioner passed the impugned order pursuant to the order passed by this Court in Special Civil Application No. 11102 of 2020 and the Development Commissioner has rightly held that the petitioner could not have tendered explanation without any authority or sanction from the Gram Panchayt and therefore, explanation tendered by the petitioner was rightly not considered by the Development Commissioner.

15. Having heard learned advocates for the respective parties and having gone through the material on record, it would be necessary to refer to the directions issued by this Court [ Coram: Hon'ble Mr. Justice A. J. Desai] in order dated 09.09.2020 in Special Civil Application No. 11102 of 2020 which reads as under:

"1. By way of the present petition under Articles 14, 19 and 226 of the Constitution of India, the petitioner has prayed to quash and set aside the notice dated 21.8.2020 issued by the Development Commissioner, Gandhinagar.

2. Mr. B.T. Rao, learned advocate appearing for the petitioner would submit that the impugned notice dated

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21.8.2020 has been issued without verifying the correct record of the proceedings of the concerned Gram Panchayat. He, therefore, would submit that the petitioner would like to produce all the relevant documents before the Development Commissioner by filing a detailed reply to the impugned notice.

3. Mr. Rao would further submit that since the present petition is pending, reply to the notice could not be filed by the petitioner in time. Therefore, some more time may be granted to file reply and the Development Commissioner, Gandhinagar may be directed to give opportunity of hearing to the petitioner.

4. Having heard Mr. B. T. Rao, learned advocate appearing for the petitioner and Ms. Divyangna Jhala, learned AGP appearing for the respondent No.1, I am of the opinion that the following order would meet the ends of justice :-

"The petitioner shall file her reply along with necessary documents in support of her defence to the Development Commissioner, Gandhinagar in response to the notice dated 21.8.2020 within a period of three weeks from today. The Development Commissioner shall proceed with the hearing of the notice and shall examine the case and the documents which may be produced by the petitioner and pass appropriate order in accordance with law, after giving opportunity of hearing to all concerned. It is hereby made clear that this Court has not examined the merits of the case. It is needless to state that the Development Commissioner shall decide the proceedingsindependently, without being influenced by the present order.

5. With the above direction, the present petition stands disposed of."

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16. From the above order, it is clear that the petitioner- Vamja Jagrutiben Amrutbhai, who was also petitioner before this Court in Special Civil Application No. 11102 of 2020, was permitted to file her reply along with necessary documents in support of her defence before the Development Commissioner, Gandhinagar in response to the show-cause notice. In view of the order passed by this Court, the Development Commissioner could not have rejected the explanation tendered by the petitioner on behalf of Gram Panchayat in reply to the show-cause notice on the ground that such reply tantamounts to the personal reply of the petitioner and not that of Gram Panchayat.

17. Therefore, without going into the merits of the matter as to whether the allegations made in the show-cause notice are rightly considered by the Development Commissioner as proved or not, the matter is required to be remanded back to the Development Commissioner to decide the same afresh de novo in accordance with law after considering the submissions/reply filed by the petitioner as if the reply is filed on behalf of the Gram Panchayat and not in her individual capacity. As the opportunity of hearing is already given to the petitioner pursuant to the order dated 09.09.2020 passed by this Court, no further opportunity is required to be given to the petitioner. The Development Commissioner is therefore, directed to pass a detailed speaking reasoned order considering

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the submissions made by the petitioner as if the same are made on behalf of the Gram Panchayat to dispose of the proceedings of show-cause notice issued under section 253 of the Act, 1993.

18. In view of the forgoing reasons, the impugned order dated 10.12.2020 passed by the Development Commissioner is hereby quashed and set aside and the matter is remanded back to the Development Commissioner to pass a fresh de novo detailed speaking reasoned order considering the submissions and reply filed by the petitioner as if the same are filed on behalf of the Gram Panchayat pursuant to the show-cause notice issued under section 253 of the Act, 1993. Such exercise shall be carried out within a period of four weeks from the date of receipt of this order.

19. Rule is made absolute to the aforesaid extent. No order as to costs.

(BHARGAV D. KARIA, J) JYOTI V. JANI