Patel Shaileshbhai Madhavlal vs State Of Gujarat
2021 Latest Caselaw 17421 Guj

    C/SCA/14265/2021                              JUDGMENT DATED: 18/11/2021



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 14265 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

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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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                       PATEL SHAILESHBHAI MADHAVLAL
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR JIGAR G GADHAVI(5613) for the Petitioner(s) No. 1,2
1) Advocate Not Given (MA) for the Respondent(s) No. 6
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No. 1
MR. HEMANG S TRIVEDI(10045) for the Respondent(s) No.
10,11,12,15,5,7,8,9
MS SEJAL K MANDAVIA(436) for the Respondent(s) No. 3,4
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1,13,14,2
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                              Date : 18/11/2021

                             ORAL JUDGMENT

1. Heard Mr.Jigar Gadhvi learned advocate for the

petitioners. Mr.Meet Thakkar learned AGP for the

C/SCA/14265/2021 JUDGMENT DATED: 18/11/2021

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

C/SCA/14265/2021 JUDGMENT DATED: 18/11/2021

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

C/SCA/14265/2021 JUDGMENT DATED: 18/11/2021

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. 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

C/SCA/14265/2021 JUDGMENT DATED: 18/11/2021

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

C/SCA/14265/2021 JUDGMENT DATED: 18/11/2021

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.

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

C/SCA/14265/2021 JUDGMENT DATED: 18/11/2021

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

C/SCA/14265/2021 JUDGMENT DATED: 18/11/2021

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

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

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

C/SCA/14265/2021 JUDGMENT DATED: 18/11/2021

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).

C/SCA/14265/2021 JUDGMENT DATED: 18/11/2021

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. Mr.Meet Thakkar learned Assistant Government

C/SCA/14265/2021 JUDGMENT DATED: 18/11/2021

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

C/SCA/14265/2021 JUDGMENT DATED: 18/11/2021

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

C/SCA/14265/2021 JUDGMENT DATED: 18/11/2021

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

C/SCA/14265/2021 JUDGMENT DATED: 18/11/2021

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

C/SCA/14265/2021 JUDGMENT DATED: 18/11/2021

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 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

C/SCA/14265/2021 JUDGMENT DATED: 18/11/2021

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.

(BIREN VAISHNAV, J) ANKIT SHAH