Rameshbhai Muljibhai Patel vs State Of Gujarat
2021 Latest Caselaw 17671 Guj

      C/SCA/9571/2016                             JUDGMENT DATED: 24/11/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 9571 of 2016


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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                        RAMESHBHAI MULJIBHAI PATEL
                                  Versus
                        STATE OF GUJARAT & 2 other(s)
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Appearance:
MR BM MANGUKIYA(437) for the Petitioner(s) No. 1
MS BELA A PRAJAPATI(1946) for the Petitioner(s) No. 1
MR MEET THAKKAR, ASST GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No. 1
MR UM SHASTRI(830) for the Respondent(s) No. 3
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2
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     CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                              Date : 24/11/2021

                              ORAL JUDGMENT

1. Rule returnable forthwith. Mr. Meet Thakkar, learned AGP appearing for respondent State and U.M. Shastri, learned advocate appearing for respondent no. 3 waive service of notice of rule.

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2. By this petition filed under Article 226 of the Constitution of India, the petitioner has prayed to quash and set aside the impugned order passed by respondent no. 2 dated 12.04.2016 in Appeal No. 2 of 2016 confirming the order passed by the respondent no. 3 dated 06.01.2016 removing the petitioner from the post of Sarpanch of Gokalpura Gram Panchayat in exercise of powers under sub-section (1) of Section 57 of the Gujarat Panchayat Act, 1993.

3. The facts in a nutshell are as under:

3.1 On 09.01.2014, the petitioner was issued a show-cause notice calling upon him to show cause as to why he should not be removed from the post of Sarpanch of Gokulpura Gram Panchayat. The notice interalia stated that when the petitioner was discharging his duties as Sarpanch in the years 2011-12 and 2012-13, from the funds of the Panchayat the petitioner carried out developmental works to the tune of Rs.32,65,035/- under the provisions of Section 241 of the Gujarat Panchayat Act, 1993 (for short 'the Act') and the rules in force.

3.2 Regarding appropriate permissions for carrying out construction and development, the petitioner was expected to prepare as budget estimate and thereafter seek approval from the competent authority. In carrying out expenses to the tune of Rs.32,65,035/- neither did the petitioner take sanction nor did he prepare a budget estimate and therefore by carrying out such expenses the petitioner committed misconduct.

3.3      The other allegation was that for the period from 13.04.2012 to





       C/SCA/9571/2016                               JUDGMENT DATED: 24/11/2021

31.05.2012, he retained an amount of Rs.1 lakh with him and therefore committed temporary misappropriation. Pursuant to the notice, the petitioner responded and by the impugned orders the petitioner was removed from the post of Sarpanch.

4. Ms. Bela Prajapati, learned advocate appearing for the petitioner relying on Section 57 of the Act submitted that at best the allegation against the petitioner was that he has not followed the procedure for carrying out works. She would submit that a resolution was passed by the Gram Panchayat on 15.12.2012 wherein it was unanimously resolved to carry out the work and therefore the petitioner could not have been singled out for the alleged misconduct. Even otherwise it was a procedural lapse.

4.1 Ms. Prajapati would further submit that the amount of Rs. 1 lakh was retained by the petitioner so as to enable him to make payment for the material purchased or to be purchased and a rojmel was maintained. The other submission made by Ms. Prajapati was that the order of removal suffered from breach of principles of natural justice inasmuch as the reports of the Taluka Development Officer dated 29.02.2013 was not furnished to the petitioner.

4.2 Ms. Prajapati would submit that having been elected the Sarpanch of the concerned gram panchayat for the first time in accordance with the judgement of the Division Bench in the case of Chetanbhai Virjibhai Dhamecha vs. State of Gujarat and Others rendered in Letters Patent Appeal No. 842 of 2008 particularly while relying on para 10 thereof, it was expected that it was the duty of the Talati-cum-Mantri to invite the attention of the Sarpanch towards such procedural

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requirements. Reliance was also placed on a decision in the case of Kamlaben Rohitbhai Patel vs. Additional Development Commissioner, Gandhinagar and others reported in 2001(1) GLH 109 to submit that the nature of allegations at best were in the nature of financial irregularities and it was not the case that the petitioner had pocketed that money to his own advantage and therefore the removal was unwarranted. Even inquiry as necessary under the provisions of Section 57 was not properly conducted.

5. Mr. U.M. Shastri, learned advocate appearing for respondent no. 3 as well as Mr. Meet Thakkar, learned AGP appearing for respondent State have supported the impugned orders and submitted that no interference be caused and the petition be dismissed.

6. Having considered the submissions made by the learned advocates for the respective parties what is evident from reading the show-cause notice and the impugned orders passed by the authorities below that the petitioner carried out developmental works to the tune of Rs.32,65,035/- without preparing a budget estimate or taking prior approval of the competent authorities. It is not necessary for the authorities to opine as to whether the petitioner by virtue of carrying out such large scale developmental works benefitted personally in terms of pecuniary gain. Reading Section 241 of the Act would indicate that no developmental work which a panchayat intends to undertake as a part of its functions and duties shall be commenced unless a detailed estimate of the cost of such work or the development scheme has been approved by the panchayat and the plan thereof is approved by the prescribed authority. Sub-section 2 also indicates that no such work shall be commenced unless there is a previous sanction by the authority as may be prescribed by rules in that

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behalf.

7. Having been elected as a Sarpanch of the gram panchayat, and in accordance with Section 55 of the Act being vested with executive powers for the purpose of carrying out provisions of the Act, it is not an argument that could merit consideration on behalf of Ms. Prajapati that the petitioner was a novice having been elected as a Sarpanch for the first time and therefore should have been made aware of the procedural requirements at the hands of the Talati-cum-Mantri. The Division Bench decision in the case of Chetanbhai Virjibhai Dhamecha (supra) will not be of any help to the petitioner.

8. As far as the decision concerned in the case of Kamlaben Rohitbhai Patel (supra) is concerned, it cannot be said that merely because the petitioner committed a financial irregularity the petitioner should be absolved of the omission by framing it as a procedural irregularity when as an executive head of the panchayat a Sarpanch is expected to carry out his duties, it cannot be said that carrying out of developmental works of the tune of Rs.32,65,035/- on the basis of a resolution be termed as a procedural infirmity and be ignored as a lapse which would not warrant invoking of the provisions of Section 57 of the Act.

9. To the argument of Ms. Prajapati that the report of the Taluka Development Officer was not supplied to the petitioner and that therefore there is a breach of principles of natural justice, it is not in dispute that the petitioner had carried out the construction of the developmental works and a statutory provision as clear as Section 241 of the Act was violated. Therefore, in absence of any prejudice being pointed out by the petitioner

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for having been not supplied with the report of the Taluka Development Officer, the contention does not deserve consideration.

10. For the foregoing reasons, petition is dismissed. Rule is discharged. Interim relief, if any, shall stand vacated.

(BIREN VAISHNAV, J) DIVYA