Rameshbhai Sendhabhai Patel vs State Of Gujarat
2021 Latest Caselaw 17360 Guj

     C/SCA/12349/2019                              JUDGMENT DATED: 17/11/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 12349 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

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1     Whether Reporters of Local Papers may be allowed                  NO
      to see the judgment ?

2     To be referred to the Reporter or not ?                           NO

3     Whether their Lordships wish to see the fair copy                 NO
      of the judgment ?

4     Whether this case involves a substantial question                 NO
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                        RAMESHBHAI SENDHABHAI PATEL
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR CP CHAMPANERI(5920) for the Petitioner(s) No. 1
MR MEET THAKKAR, ASST GOVERNMENT PLEADER(1) for the
Respondent(s) No. 1,2
MR ANVESH V VYAS(5654) for the Respondent(s) No. 4
MS SEJAL K MANDAVIA(436) for the Respondent(s) No. 3
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     CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                               Date : 17/11/2021

                              ORAL JUDGMENT

1. Rule. Mr. Meet Thakkar, learned AGP appearing for respondents no. 1 & 2, Ms. Sejal Mandavia, learned advocate appearing for respondent no. 3 and Mr. Anvesh Vyas, learned advocate appearing for

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respondent no. 4 waive service of notice of rule.

2. In this petition, under Article 226 of the Constitution of India, the petitioner who was the elected Sarpanch of Gozaria Gram Panchayat (elected on 05.05.2017) has challenged the orders dated 24.08.2018 so confirmed in appeal by the Additional Development Commissioner on 29.06.2019 by which the petitioner has been removed as a Sarpanch of the Panchayat in exercise of powers under Section 57(3) of the Panchayats Act.

3. A show-cause notice dated 15.02.2018 was issued to the petitioner. Essentially, the shortcomings on behalf of the petitioner's conduct were pointed out namely the first conduct was that in a meeting of the Gozariya Gram Panchayat held on 11.10.2017, it was resolved that in order to promote the door-to-door collection of garbage it was necessary to procure one tractor and a trolley in case a donor was available. Resolution No. 66 was passed therefore. The petitioner after passing of such a resolution purchased a tractor for Rs.4,67,000/- on 13.10.2017 and trolley for Rs.1,20,000/- on 27.10.2017 from the donation given by one Bharatbhai Raghubhai Rabari. The tractor was purchased from Starline Tractors, Mehsana and the trolleys were purchased from Sonal Industries and a cheque was given for such purchase. The allegation was that the procedure envisaged under the rules for taking prior sanction for an expenditure above Rs.40,000/- was not followed and therefore the petitioner had committed lapse in discharge of his duties.

3.1 The second and the third allegations are co-related inasmuch as it was the case of the authorities that on the tractor, the petitioner had painted the name of one Jivabhai Patel showing that the tractor was gifted

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by said Jivabhai Patel. This was done with a view to help him in the oncoming elections of the 2017 Vidhan Sabha. By painting such a name on the tractor the petitioner had misled the village Gozariya. The third allegation which is co-related to allegation no. 2 is that though no donation was given by said Jivabhai Patel, showing his name on trolley as having given such a donation was misleading the public at large. The petitioner responded to these allegations and by the impugned order dated 24.08.2018 by the District Development Officer, he was removed as Sarpanch which was confirmed by the Additional Development Officer vide order dated 29.06.2019.

4. Mr. C.P. Champaneri, learned advocate appearing for the petitioner would draw the attention of the court to the various bills placed on record to show that from the grant of the Deputy Chief Minister, 14 tractors were purchased from Starline Tractors at a price of Rs.4,83,000/-. The purchase of the tractor in question by the petitioner was at a price of Rs.4,67,000/- for which a bill and a receipt are placed on record. As far as the trolleys are concerned, Mr. Champaneri would draw the attention of the court to the quotations invited by private circulation; one of Sonal Industry, Butbhavani Agriculture Works and also of one Sarasvati Agriculture Industries. The lowest quotation was of Sonal Industry for Rs.1,20,000/- and therefore the trolleys were purchased from the said agency for which a bill was issued and the payments were made by way of a cheque.

5. Ms. Sejal Mandavia, learned advocate appearing for the Gozariya Panchayat would draw the attention of the court to the report of the Taluka Development Officer and submit that the procedural rules would expect a Sarpanch to take prior sanction of the competent authority before

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incurring a purchase beyond a certain amount i.e. in the present case above Rs.40,000/-. She would also submit from the report that after statements were given by the Extension Officer and the Taluka-cum- Mantri, it was found that though on the tractor it was so painted that it was purchased from the donation received by Jivabhai Patel, no such donation was in fact received and therefore misleading the public at large and therefore indirectly promoting the cause of the beneficiary in the oncoming elections of 2017 amounted to an act which was disgraceful and befitting his removal from the elected post of Sarpanch. She would also submit that the expenses were not approved by way of the resolution of the Panchayat.

6. Mr. Meet Thakkar, learned AGP appearing for the State would support the orders passed by the Additional Development Commissioner and the District Development Commissioner and submit that the findings recorded in the order would indicate that though it was shown that a donation was obtained from one Rabari Bharatbhai, name of a former M.P was displayed on the tractor. No such donation was deposited from the ex. M.P. He submitted that there was a procedural lapse inasmuch as the rules prescribe invitation of bids in accordance with the Panchayat Rules but the same was not followed by the petitioner and therefore in exercise of his functions, the petitioner was not fit to continue as a Sarpanch.

7. On behalf of the original complainant, Mr. Anvesh Vyas, learned advocate has appeared. He has taken the court through the affidavit-in- reply and supported the orders passed by the authorities below. According to Mr. Vyas, the petitioner ought to have taken permission from the competent authorities not to have invited tender before the

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purchase of a tractor and two trolleys for an amount which ran upto more than Rs. 5 lakhs. He would submit that though the purchase of tractor was not sponsored by Shri Jivabhai Patel, putting his name on the tractor amounted to supporting a political party and therefore the petitioner was rightly removed from the post of Sarpanch. Mr. Vyas would also draw the attention of the court to the communication dated 12.07.2021 handed over to the court to suggest that even thereafter the petitioner is facing action for felling of trees and therefore the character of the petitioner only befits his removal.

8. Perusal of the show-cause notice issued to the petitioner would indicate that the Gozaria Gram Panchayat was short of tractors and trolleys in order to promote the Swachh Bharat Mission and through it the door-to-door collection of garbage. In furtherance of this object as a Sarpanch, Resolution No. 66 was passed on 11.10.2017 by which it was resolved by the Panchayat that in the event a donor is available, tractor and trolleys be purchased which was short in the Panchayat supply. On the passing of such resolution one Rabari Bharat came forward and offered to donate an amount for purchase of such tractors and trolleys.

8.1 The material on record indicates that from the grant of the Deputy Chief Minister, 14 tractors were purchased from an agency 'Starline Tractors', Mehsana at a price of Rs.4,83,000/-. In the judgement of the petitioner, Starline being the only agency which was to supply tractors of Ferguson Massey make and which agency also supplied the tractors from the grant of Deputy Chief Minister, he approached the agency which offered him the tractor at a price of Rs.4,67,000/-. The petitioner purchased the tractor from the said agency and a receipt was obtained after having paid the amount through cheque. There is no allegation in

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the show-cause notice that the petitioner was in any way connected with the agency so as to receive any financial benefit from the purchase of such tractor and trolleys. The only lapse that at best could be attributed on the petitioner was that he did not follow the procedure of inviting tenders for a purchase above Rs.40,000/-. The record indicates that in the financial prudence that the petitioner thought was beneficial to the panchayat, after 14 tractors were given to the petitioner from the grant of the Deputy Chief Minister which were purchased from the same agency at a price of Rs.4,83,000/-, it was nothing wrong for the petitioner to have directly purchased a tractor for Rs.4,67,000/- from the said agency for the make which was available with that very agency. No motive can be attributed to the petitioner so as to warrant disgraceful conduct on his behalf.

9. Inasmuch as the trolleys are concerned, having invited quotations and having accepted the lowest thereof, albeit not through public advertisement, there is no allegation that any loss was caused to the exchequer by buying trolleys at a price which otherwise was not a correct price or that the petitioner had obtained financial benefit from the agency through which the trolleys were purchased. Nothing much can be said about the other two allegations which are co-related i.e. of painting the name of one Jivabhai Patel instead of the original donor Bharatbhai Rabari and that it was done to favour the said Jivabhai Patel in the oncoming elections. The allegations no. 2 and 3 are preposterous.

9.1 Section 57 of the Panchayat Act envisages the power of the competent authority to remove from office a Sarpanch if he is guilty of misconduct in discharge of his duties or disgraceful conduct or abuses his powers or makes persistent default in performance of his duties and

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functions. In case on hand, if the petitioner has acted in his judgment keeping the financial prudence in mind and purchased the tractor from the agency which otherwise had been the only source to supply viz-a-viz the grant of the Deputy Chief Minister and when he could procure a tractor at a price lower than that which was procured from the grant of the Deputy Chief Minister and in absence of any allegation of his proximity to the agency, such conduct cannot be termed so gross so as to remove him from his post, particularly, in absence of any malafides or motives attributed to him.

10. For the foregoing reasons, the petition deserves to be allowed. The impugned order dated 29.06.2019 is hereby quashed and set aside. Rule is made absolute accordingly.

(BIREN VAISHNAV, J) DIVYA