Ashokbhai Kanubhai Mangroliya vs State Of Gujarat
2021 Latest Caselaw 15473 Guj

     C/SCA/7748/2021                               ORDER DATED: 04/10/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 7748 of 2021

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                   ASHOKBHAI KANUBHAI MANGROLIYA
                               Versus
                         STATE OF GUJARAT
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Appearance:
MR BB NAIK SR. ADVOCATE assisted by MR EKANT G AHUJA(5323) for
the Petitioner(s) No. 1
MR ADJITYASINH JADEJA ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
MR PREMAL R JOSHI(1327) for the Respondent(s) No. 2
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

Date : 04/10/2021

ORAL ORDER

1. By way of this petition under Articles 226 and 227 of the Constitution of India, the petitioner has challenged the legality and validity of the order dated 19.04.2021 passed by the Development Commissioner in Appeal No. 31 of 2020 as well as the order dated 21.05.2020 passed by respondent no. 2 - District Development Officer, disqualifying the petitioner from the post of the Sarpanch.

2. The facts which have given rise to the present petition are that the petitioner was holding the post of Sarpanch of Timba Jaswantgadh Gram Panchayat, who in clear violation of the principle was removed from the post in exercise of power under Section 57(1) of the Gujarat Panchayats Act. Originally, respondent no. 2 - District Development Officer passed an order on 21.05.2020 which came to be challenged by the petitioner before the Additional Development Commissioner and the Additional

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Development Commissioner was pleased to dismiss the appeal vide order dated 19.04.2021. The case of the petitioner further is that one application came to be filed on 12.06.2018 by one Babubhai Dadubhai Mangroliya, resident of Jaswantgadh (Timba) alleging that the petitioner being Sarpanch along with other member - Lakhmanbhai Bhadabhai Sorathiya has misappropriated funds in respect of installation of Mobile Tower (Tax amount) of Voda Phone Company to the sum of Rs.4,95,000/- by opening dummy account on 04.03.2018 in HDFC Bank, Amreli and thereby has committed a serious act in discharging of his functions as a Sarpanch. After the report which has been prepared by the Taluka Development Officer and after granting opportunity, vide show cause notice dated 24.09.2018, the authorities proceeded against the petitioner. The petitioner also filed reply to the said show notice and after considering the relevant material, the District Development Officer, found that the petitioner has committed misconduct, has abuse powers of post, which he was holding as a Sarpanch of Gram Panchayat. As a result of this, in exercise of powers under Section 57(1) of the Gujarat Panchayats Act, the order is passed to remove the petitioner from the post of Sarpanch as well as member of the Panchayat.

2.1. Aggrieved by the said order, the petitioner preferred an appeal where also adequate opportunity appears to have been granted and the Additional Development Commissioner was pleased to dismiss the appeal, but according to the petitioner, certain contentions and decisions which have been relied upon, during the course of hearing, the appellate authority has not at all considered the same. Hence, the vital contentions which have been raised before the appellate authority have remained unattended. As a result of this, a grievance is voiced out in the present petition that the order passed by the appellate authority is suffering from

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vice of non application of mind. It appears that based upon the submissions, the Court by a detailed order on 15.06.2021 has passed an order of issuance of notice and notice as to interim relief. Later on, a draft amendment was tendered and the matter was adjourned from time to time and came up for consideration before this Court on 09.09.2021 wherein, the learned Assistant Government Pleader has requested for some time to get proper instructions from the authority and after that, the matter is taken up for hearing today.

3. Mr. B.B. Naik, learned Senior Advocate assisted by Mr. Ekant Ahuja, learned advocate appearing for the petitioner has vehemently contended that the order passed by the appellate authority, namely the Additional Development Commissioner has neither applied its mind to various contentions which have been raised nor has examined the contentions of the petitioner and so much so, that though decisions were pressed into service, the same have not been dealt with at all. As a result of this, the order suffers from vice of non application of mind. Learned Senior Advocate Mr. Naik has submitted that this non dealing of the contention itself is sufficient enough to set aside the impugned order for reconsidering and to pass a fresh order. By way of additional affidavit, learned Senior Advocate Mr. Naik has tried to raise certain averments which ought to have been examined and according to Mr. Naik, on instructions, the authority concerned has not applied its mind. According to learned Senior Advocate Mr. Naik, what has been alleged against the petitioner is not the subject matter which may attract Section 57 (1) of the Gujarat Panchayats Act, and the elected representative cannot be removed in the manner in which he has been dealt with. By referring to page 96, the petitioner has raised a detailed objections and explained the allegations which are levelled, which representation/objection, is forming

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part of the order. In addition to it, learned Senior Advocate Mr. Naik has further drawn attention to the appeal memo which has been submitted, and has detailed out certain contentions, but according to Mr. Naik, when question of removal is a serious act the same is to be examined by the authority in detail, and it is also incumbent upon the authority to closely peruse the relevant record which is very much available before it. In addition to the detailed objections, even the relevant documentary material in the form of bank statements, in the form of Resolutions, in the form of relevant certificates, were shown to the authority, but the authority in an ipse dixit manner, has in routine manner, appears to have exercised the powers, which has led the petitioner to approach this Court. In substance, learned Senior Advocate Mr. Naik, has submitted that while exercising the discretion, the contentions which have been raised ought to have been dealt with including the decisions which have been relied upon before the authority and has ultimately requested the Court that if the Court is inclined not to enter into such details, then it is expected that the authorities may reconsider in light of the settled principle of law laid down by the Apex Court.

3.1. If the submissions have not been gone into and if the proposition of law which is centering around the controversy, the same deserves to be reconsidered. Learned Senior Advocate Mr. Naik has also drawn attention to a detailed order which has been passed on 15.06.2021 passed by the co-ordinate Bench of this Court and has submitted that this is a fit case in which authority is required to reconsider the case and then passed a fresh order.

3.2. To strengthen the submissions, learned Senior Advocate Mr. Naik has drawn attention to certain decisions on the issues which are noted

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hereunder :-

"(1) In the case of Tarlochan Dev Sharma v. State of Punjab & Ors., reported in 2001 (6) SCC 260.

(2) In the case of Sharda Kailash Mittal v. State of M.P. & Ors., reported in 2010 (1) GLH 774.

(3) In the case of Virbalaben Girishbhai Trivedi & Ors., v. State of Gujarat & Ors., reported in 2010 (1) GLH 753.

(4) In the case of State Bank of India & Ors., v. D.C. Aggarwal & Ors., reported in AIR 1993 SC 1197.

(5) In the case of Nathabhai Harkhani v. State of Gujarat & Ors., rendered in Special Civil Application No. 8332 of 2009 dated 28.04.2010.

(6) In the case of Kamlaben Rohitbhai Patel v. Add. Development Commissioner, Gandhinagar & Ors., reported in 2001 (1) GLH

109.

(7) In the case of Kanakbhai Narsangbhai Padhar v. State of Gujarat & Ors., reported in 2002 (3) GLH 739.

(8) In the case of Vinaykumar Tribhovandas Patel v. Add. Development Commissioner & Ors., reported in 1984 GLH 716.

(9) In the case of (Shri) Prabodhrai Dhirajram Nayak v. (The) District Panchayat, Surat & Ors., reported in 1983 GLH 782."

3.3. By submitting this, in light of this peculiar background of facts, a request is made to direct respondent no. 1 to reconsider and examine the material and then pass a fresh order after dealing with the contentions as well as the record at length. No other submissions have been made.

4. To this, learned advocate Mr. Premal Joshi appearing on behalf of respondent no. 2 - authority who passed the order in origin has submitted

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that every material is examined by the authority including the report of the Taluka Development Authority and the material which is examined has led the authority to come to a definite conclusion that this is a fit case in which powers are required to be exercised under Section 57 (1) of the Gujarat Panchayats Act and when adequate opportunity is given, there is hardly any reason for entertaining the petition. However, to the submission made by learned Senior Advocate Mr. Naik that certain material has not been examined and considered and the order reflects non dealing of the same, learned advocate Mr. Joshi has submitted that at the best, the appellate authority may be directed to reconsider and the remand may not be to the stage from where the original order is passed and, therefore, has requested the Court not to grant any relief as prayed for in the petition. This is not a fit case for quashing and setting aside the order. At the best for reconsidering if the Court is of the opinion that the contentions and the material have not been dealt with then the authority in appeal may deal with it, and remand may not be from original stage.

5. As against this, Mr. Aditiyasinh Jadeja, learned Assistant Government Pleader appearing for the respondent - State initially has objected to the submissions made by learned Senior Advocate Mr. Naik, but then, on perusal of the order, could not withstand to the alternative submissions which have been made by learned Senior Advocate Mr. Naik to reconsider the issue and to pass a fresh order and as such, after submitting that the authority has passed a just order, the matter is left to the discretion of the Court to direct respondent no. 1 to reconsider and from the submission appears to be that there is a concurrence to remand back the matter before the appellate authority for reconsidering the relevant record and the submission coupled with the decisions which are tried to be pressed by the petitioner.

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6. Having heard the learned counsel appearing for the respective parties and having gone through the material on record, it appears that the order which has been passed by the appellate authority is no doubt, has recorded the relevant sequence of the events, but while reading the conclusion arrived at by the appellate authority, it appears that the contentions which are taken during the course of hearing and the decisions which have been pressed into service which are also recorded in para 3 of the order passed by the Additional Development Commissioner clearly indicates that the contentions have not been dealt with and as such, qua that learned Senior Advocate Mr. Naik is justified that there is no independent conclusion reflecting on the stand taken by the petitioner before the appellate Court during the hearing.

6.1. About the factual details which are centering around the main controversy, this Court since not called upon to express in view of the alternative submission of remanding the matter back for fresh consideration has refrain itself from commenting anything as it is independently left it open for the appellate authority to re-examine. The overall view of the impugned order is indicating that the decisions which have been delivered by this Court which are recorded in para 3 as well as the decision which is tried to be relied upon by the caveator have not been taken into consideration. As a result of this, the Court is inclined to remand back the matter for fresh consideration before respondent no. 1. While coming to this conclusion, the Court is mindful of the proposition of law which has been laid down by the Hon'ble Supreme Court in the case of Commissioner of Income Tax-I v. Rashtradoot (HUF) reported in (2019) 5 SCC 149 and since considered, the Court deems it appropriate to reproduce hereunder the relevant observations contained in para 13

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and 14, which read as under :-

"13. This Court has consistently laid emphasis that every order/judgment, which decides the lis between the parties, must contain the reason(s)/ground(s) for arriving at a particular conclusion. Indeed, what is decisive for deciding the case is not he conclusion alone but the reason(s)/ground(s) assigned in support of such conclusion, which results in reaching to such conclusion.

14. In order to decide as to whether the impugned order is legally sustainable or not, the appellate court is entitled to know as to what impelled the court below to pass such order in favour of one party and against the aggrieved party. We find that this requirement is missing in the impugned order of this case and hence the interference is called for. (See State of Maharashtra v. Vithal Rao Pritirao Chawan, Jawahar Lal Singh v. Naresh Singh, State of U.P. v. Battan, Raj Kishore Jha v. State of Bihar and State of Orissa v. Dhaniram Luhar)."

7. In view of the aforesaid proposition and in view of the peculiar background of fact and concurrence and in view of the broad submissions of remanding the matter back to the appellate authority, the Court is inclined to dispose of the petition on the following line which would meet the ends of justice.

7.1. The impugned order dated 19.04.2021 passed by the Additional Development Commissioner, State of Gujarat in Appeal No. 31 of 2020 and order dated 21.05.2020 passed by the District Development Officer are hereby quashed and set aside, with a consequential direction upon respondent no. 1 to reconsider the submissions, contentions and the record, afresh and after granting appropriate opportunity, pass a fresh order, strictly, in accordance with law.

7.2. It is clarified that since not called upon, this Court has not expressed any opinion on merit with regard to any of the submissions on

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merit of the petitioner and it is independently left it open for the authority concerned to take appropriate decision strictly in accordance with law, on the basis of the material available before it and shall pass a fresh order. It is also made clear that the quashment of the orders will not permit the petitioner to assume that the order in origin is set aside and is not entitled to re-post himself to be a Sarpanch as clarified. It is merely a direction upon the respondent authority to take a fresh decision and further since the issue is relating to the year 2018, the appellate authority is directed to undertake the exercise of passing a fresh order in accordance with law, preferably within a period of four weeks from the date of the receipt of writ of this Court.

8. With the aforesaid observations and directions, the present petition stands disposed of.

Direct Service is permitted.

(ASHUTOSH J. SHASTRI, J) phalguni