Jasmatbhai Naradbhai Koyani vs District Development Officer
2021 Latest Caselaw 16655 Guj

     C/SCA/13191/2020                                 ORDER DATED: 25/10/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 13191 of 2020

==========================================================
                JASMATBHAI NARADBHAI KOYANI
                                Versus
               DISTRICT DEVELOPMENT OFFICER
==========================================================
Appearance:
MRS SANGEETA PAHWA ADVOCATE for THAKKAR AND PAHWA
ADVOCATES(1357) for the Petitioner(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 1,2
MR PREMAL S RACHH(3297) for the Respondent(s) No. 4
NOTICE SERVED(4) for the Respondent(s) No. 3
==========================================================

CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

Date : 25/10/2021

ORAL ORDER

1. By way of present petition under Article 226 of the Constitution of India, the petitioner has prayed for the following relief :-

"11(A) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction and be pleased to quash and set aside the impugned order dated 16.09.2020 passed by respondent no. 2 and further be pleased to direct the respondents to allow the petitioner to discharge his duties as Sarpanch of the Jamkandorna Gram Panchayat in the interest of justice.

(B) Your Lordships may be pleased to stay the implementation, operation and execution of the impugned order dated 16.09.2020 passed by the respondent no. 1 in Appeal No. 1 of 2020 as well as order dated 29.08.2020 passed by respondent no. 2, pending the admission, hearing and final disposal of this petition.

(C ) Your Lordships may be pleased to direct the respondents to allow the petitioner to discharge his duties as Sarpanch of Jamkandorna Gram Panchayat pending the admission, hearing and final disposal of this petition;

(D) Your Lordships be pleased to pass such other and further order

C/SCA/13191/2020 ORDER DATED: 25/10/2021

as the nature and circumstances of the case may be required."

2. The case of the petitioner is that Jamkandorna Gram Panchayat had, under the instructions from respondent no. 1 used JCB Machine of son of the petitioner for removing water logging and constructing wall of the Kabrastan and had given Rs.18,800/- during the year 2017. To that effect bills were approved by the Panchayat, payment was done to son of the petitioner, who is residing separately and according to the petitioner, there is only one JCB machine in the entire village and as the same was used in the work of Panchayat after analyzing rates given by different persons. However, on account of the complaint made by respondent no.4, who happened to be an RTI activist, steps were taken under Section 30(1)

(g) of the Gujarat Panchayats Act to disqualify the petitioner.

3. In response to this, a show cause notice was issued on 22.07.2020 indicating as to why the petitioner be not removed from the post of Sarpanch in exercise of power under Section 32(2) of the Gujarat Panchayats Act, mainly on the ground that there is violation of Section 30(1)(g) of the Gujarat Panchayats Act. The petitioner happened to be duly elected Sarpanch of Jamkandorna in 2016 and since then discharging function as Sarpanch. The said show cause notice has been replied by the petitioner on 04.08.2020 by submitting the same to respondent no. 2 along with all the necessary documents and also explained the procedure which was adopted before giving JCB machine work, but according to the petitioner, without considering the said detailed explanation and without affording any appropriate opportunity, the petitioner came to be removed from the post of Sarpanch vide order dated 25.08.2020 passed by respondent no. 2. In view of this, in purported exercise of power under Section 32(2) of the Gujarat Panchayats Act, vide order dated 29.08.2020, the petitioner was declared as unfit and disqualified to hold the post of

C/SCA/13191/2020 ORDER DATED: 25/10/2021

Sarpanch and directed to hand over the charge to a person indicated therein. According to the petitioner, the only grievance is that the work was entrusted to son of the petitioner who is separately residing all together. However, be that as it may, against the said impugned order, the petitioner preferred an appeal before respondent no. 1 being Appeal No. 1 of 2020 challenging the said order dated 29.08.2020. The said appeal came up for consideration, but according to the petitioner, in mechanical exercise of power, the appellate authority has confirmed the order passed by respondent no. 2 and dismissed the appeal vide order dated 16.09.2020, which orders are the subject matter of present petition under Article 226 of the Constitution of India.

4. The petition was originally entertained by issuance of notice vide order dated 26.10.2020 and later on after pleadings having been completed, the matter has come up for consideration before this Court. In the midst of hearing, learned advocate Mr. H.S. Munshaw appearing for respondent nos. 1 and 2 has informed the Court that there are guidelines issued by the State authority upon the Panchayats with regard to dealing with funds and the manner in which the funds are to be utilized or distributed and for that purpose, on 16.09.2021 has sought time and later on full fledged hearing has taken place on 28.09.2021 and then after conclusion of the submissions of both the sides, the matter was kept for orders. Hence, with this background, the Court is passing the present order.

5. Learned advocate Ms. Sangeeta Pahwa for Thakkar and Pahwa Advocates for the petitioner has vehemently contended that the orders passed by the authorities below are absolutely unjust, improper and reflection of political vendetta. It has been submitted that before the previous Bench, extensive hearing has taken place, in which in the month

C/SCA/13191/2020 ORDER DATED: 25/10/2021

March, 2021, brief notes with regard to submission was also tendered and the petitioner would like to press this submissions in the present hearing as well. It has been contended that looking at the manner in which the orders have been passed, the same are absolutely suffering from vice of non application of mind. Apart from that, if son is doing the business and is entrusted with the work after following proper procedure, and more so when in the entire village only one JCB is there and if the payment has been made in a routine practice, there is hardly any question of invoking provisions of Section 30 of the Gujarat Panchayats Act in this circumstance and as such, the orders passed are not in consonance with the object for which Section 30 of the Gujarat Panchayats Act is introduced. Learned advocate Mrs. Pahwa has submitted that the payments have been released after getting proper invoice from son of the petitioner and after seeking approval from Talati-cum-Mantri office of the Taluka Panchayat, who did not raise any objection with regard to sanction of the payment and as such, after that if Section 30 of the Gujarat Panchayat Act is invoked against the petitioner, it is a sheer misconception on the part of the authority. Learned advocate Mrs. Pahwa has submitted that simply because some RTI activist is out to achieve goal against the petitioner with some oblique motive, the authority ought to have adopted cautious approach to the issue and could not have passed the order in such a mechanical manner. At this stage, learned advocate Ms. Pahwa has candidly further submitted that no doubt the work might not have been entrusted by passing any Resolution, but the payment, which has been released is by passing a Resolution and as such, also there appears to be a substantial compliance of the procedure by the petitioner for which, no steps can be initiated.

5.1. After submitting that, learned advocate Ms. Pahwa has pressed into service the notes of arguments which the Court would like to reproduce

C/SCA/13191/2020 ORDER DATED: 25/10/2021

hereunder :-

"Notes for Arguments (1) The petitioner has challenged his disqualification from the post of Sarpanch. That it is alleged in the show cause notice that as per Sec. 30 (1) of the Gujarat Panchayat Act, officer of Gram Panchayat cannot by contract or otherwise give any payment or benefit of his near relative. (Pg.27A to Pg.27C @ Pg.27C)

→ That it is alleged that the petitioner during his term of Sarpanch has given work to his son to the tune of Rs. 18,800/- for operating JCB Machine for 26 hours.

→ Section 30 of Gujarat Panchayat Act, 1993

"30-Disqualification of (1) No person shall be a member of a Panchayat or continue as such who

(g) has directly or indirectly, by himself or his partner, any share or interest in any work done by order of the panchayat, or in any contract with, by or on behalf of, or employment with or under the panchayat; or

Explanation 1: A person shall not be disqualified under clause (g) for membership of a panchayat by reason only of such person.

(g) merely being a relative of a person in employment with or under or by or on behalf of the panchayat,"

→ From the above provision, it is clear that Section 30 provides that no person shall be a member of a panchayat or continue as such, who, directly or indirectly, has any share or interest

(i) in any work done by order of the panchayat;OR

(ii) in any contract with, by or on behalf of, OR

(iii) employment with panchayat; OR

(iv) employment under the panchayat;

→ Explanation-1 further provides that a person shall not be disqualified under Clause (g) for membership of a panchayat by a reason ONLY of such person

(i) merely being a relative of a person in employment with Panchayat; OR

C/SCA/13191/2020 ORDER DATED: 25/10/2021

(ii) merely being a relative of a person in employment under Panchayat; OR

(iii) merely being a relative of a person in employment on behalf of Panchayat;

→ That therefore, this Hon'ble Court is required to decide whether the petitioner has any share or interest in giving work of JCB Machine to his son. That admittedly, there is no allegation of share of petitioner in any transaction. Therefore, the question which remains to be decided is whether the petitioner has any interest in giving work to his son. That the term "interest" is described by: the Hon'ble Supreme Court in the case of Gulam Yasin Khan vs. Sahebrao Yeshwantrao Walaskar, wherein the Hon'ble Supreme Court has held in Para 7 that

"......... ...... in order to incur disqualification what the clause requires is interest or share in any contract. It may either be share or interest and if it is an interest, the interest may be direct or indirect but it is claimed that the interest to which the clause refers cannot mean mere sentimental or friendly interest. It must mean interest which is pecuniary, or material or of a similar nature but it is noticeable that the clause also requires that the person who incurs disqualification by such interest, must OWN such share or interest."

→ That in para 5 of the above judgment, it is held that the son was staying separately from father and the income of both the family was separate and therefore, there cannot be any monetary interest.

→ As per the above judgment, the interest cannot be sentimental but has to be pecuniary. In the present case, there is no allegation that the petitioner has any pecuniary or material interest. The only allegation is that contract cannot be given to son as per Sec.30(1). However, Section 30(1) does not provide any such eventuality. It only provides that there shhould not be any interest viz. pecuniary or material interest. Thus, when there is no pecuniary or material interest in the present case, it cannot be alleged that there is any indirect interest.

→ That the term "interest" is also defined in the Law of Lexicon of P. Ramanatha Aiyar, 2nd Edition (Reprint 1999) as

"Interest- Legal concern, right, pecuniary stake the legal concern of a person in the thing or property or in the right to some of the benefits or use from which the property is inseparable; such a right in or to a

C/SCA/13191/2020 ORDER DATED: 25/10/2021

thing capable of being possessed or enjoyed as property which can be enforced by judicial proceedings. The word is capable of different meanings, according to the context in which it is used or the subject matter to which it is applied. It may have even the same meaning as the phrase 'right title and interest' but it has been said also to mean any right in the nature of property, but less than title. The word is sometimes employed synonymous with estate, or property.

Interest means concern, advantage, good; share, portion, part, or participation.'

→ That thus, it is clear that the interest must be pecuniary and material. That there cannot be any sentimental interest as held by the Hon'ble Supreme Court in the case of Gulam Yasin Khan (supra): → That Section 30(1)(g) is further clarified by the Explanation that merely being a relative of a person in employment would not make any member of the Panchayat disqualified. Thus, as per the Explanation, the authority must prove interest, pecuniary material and not sentimental arising out of relationship.

→ That even without considering the Explanation or clarification, from Section 30(1)(g) itself, it is clear that there should not be any interest direct or indirect in the work or contract or employment of the Municipality. The Explanation further strengthens the submission that merely being a relative would not be enough to allege interest and interest has to be pecuniary or material and not sentimental. In the present case, no pecuniary or material interest is alleged. What is alleged is only sentimental interest. Therefore, the petitioner cannot be disqualified only on the ground of merely being a relative (father) of a person in employment (son) under the Panchayat..

(2) It is orally submitted by the advocate of the respondent that the petitioner has interest in work done or in the contract by the panchayat and Explanation is applicable only in the case of employment and therefore, the explanation would not be applicable in the present case.

→ It is not the case of the respondent in the show cause notice that the petitioner has share or interest in the work done/ contract by the panchayat. That there is no allegation that the petitioner has any share or pecuniary interest in the work done/contract by the Panchayat. That in the show cause notice, the respondent has alleged that the petitioner cannot under the provision, by contract or otherwise, give any money or benefit to his son by employing him under the Panchayat. Thus, the Explanation would squarely cover the

C/SCA/13191/2020 ORDER DATED: 25/10/2021

case of the petitioner..

(3) Even otherwise, assuming that the case of petitioner falls under first clause i.e. the petitioner has any share or interest in any work done or in any contract, by the order of the panchayat, then also, as per Explanation-1, only on the ground of merely being a relative (father) of a person in employment (son) under the Panchayat, the petitioner cannot be disqualified.

→ That Explanation very clearly provides that the Explanation would be applicable for Clause (g) and therefore, it cannot be inferred that Explanation 1(g) would apply only in the case of employment.

→ That assuming the explanation to Section 30 is not applicable, then also Section 30 does not provide that the work, cannot be given to a person who is relative. That the respondent has to establish that by giving work to a relative, the petitioner has received pecuniary or material benefit.

→ That the petitioner had submitted that his son is staying separately and has separate ration card. Thus, it cannot be said that the income earned by the son is the income of the father.

→ That even otherwise, it is alleged that the petitioner during his term of Sarpanch has given work to his son to the tune of Rs. 18,800/- for having worked for 26 hours Thus, there cannot be any share or interest of the petitioner. That the son of petitioner is also not given any excessive payment for the work done The total amount paid is as per the work done and as per contract rate which was decided after following due procedure of law. Thus, Sec.30 is not applicable to the facts of this case.

→ That even otherwise, admittedly there is only one JCB machine in the entire village. That the comparative rates were invited and as shown at Pg. 42, the other persons who were situated outside the Village had quoted Rs.750 and Rs. 725 per hour, whereas the son of petitioner had quoted Rs. 700 per hour. Thus, it was in the interest of Nagar palika to award the work to Bansari JCB, who happens to be the son of petitioner.

(5) The petitioner has relied upon the judgment of the Hon'ble Bombay High Court in the case of Sau. Dhrupadabai Laxmanrao, wherein son of the Sarpanch was employed temporarily for release of water. That in the said case, the Hon'ble Bombay High Court after relying upon the judgment of Hon'ble Supreme Court has held that

C/SCA/13191/2020 ORDER DATED: 25/10/2021

the interest has to be pecuniary and not sentimental. The disqualification was thus set aside.

(6) The petitioner has relied upon the judgment of the Hon'ble Bombay High Court in the case of P.A. Inamdar. In the said case, reliance was placed on the judgment of Hon'ble Supreme Court in Gulam Yasin Khan (supra). In Para 17 of above judgment, the respondent had submitted that in the case of before the Hon'ble Supreme Court, allegations were about employment, whereas it was the case of interest in the contract. However, the Hon'ble Bombay High Court did not accept the submission and held that the word "interest" would apply even in the case of contract or in the case of employment.

(7) That the Hon'ble High Court of Gujarat on a similar provision has quashed the disqualification in the case of Hirjibhai Trambadia.

(8) That the advocate of the respondent has relied upon the judgment of Hon'ble Bombay High Court in the case of Arshiyabegum Shaikh Rabib vs. State of Maharashtra, in Writ Petition No.7298 of 2019. It is relevant to mention here that the said judgment would not be applicable because in the said judgment, Section 14(1)(g) of the Maharashtra Village Panchayat Act was under consideration, wherein the Explanation provided in Section 30(1)(g) of the Gujarat Panchayat Act is not available. Even otherwise, in the said judgment, the definition of "interest" as provided in Gulam Yasin Khan (supra) was though argued, was not considered. That the Bombay High Court has referred the above judgment in para 28, but without considering the effect of the judgment, the finding is given in Para 29 and therefore, the said judgment is not applicable in the present case, since the same does not consider the definition of judgment as provided in the judgment rendered by the Hon'ble Supreme Court in the case of Gulam Yasin Khan."

5.2. In the notes for arguments, learned advocate Mrs. Pahwa has submitted certain papers, upon perusal of which, one Resolution no. 27 relates to one Hiteshbhai Adadiya is passed which came to be approved later on, which can be seen from the page 22-23 of the documents which have been presented by respondent no. 4 in the note dated 01.04.2021. No such process is undertaken in the case of the present petitioner's son.

C/SCA/13191/2020 ORDER DATED: 25/10/2021

5.3. Learned advocate Mrs. Pahwa has with a view to substantiate her arguments has submitted and placed reliance upon the few decisions, following in number :-

"(1) In the case of Dashrathbhai Ishwarlal Patel v State of Gujarat & Ors., reported in 2013 SCC Online Guj 834.

(2) In the case of Opto Circuit India Ltd. v. Axis Bank & Ors., reported in 2021 SCC Online SC 55.

(3) In the case of Gulam Yasin Khan v. Sahebrao Yeshwantrao Walaskar reported in 1966 (0) GLHEL SC 10077 =[ AIR 1966 SC 1339].

(4) In the case of Hirjibhai Haribhai Trambadia v. State of Gujarat reported in (1979) 2 GLR 226.

(5) In the case of P.A. Inamdar v. State of Maharashtra & Ors., reported in 2020 SCC Online Bom 261 =[(2020) 3 Bom CR 391].

(6) In the case of Sau Dhrupadbai Laxmanrao Mhaske v. Additional Commissioner reported in 2015 SCC Online Bom 3478 =[ (2015) 5 Bom CR 308]."

And then has referred to a relevant provisions contained from the statute and after submitting at length, learned advocate Mrs. Pahwa has requested the Court to grant the reliefs as prayed for in the petition.

6. After the submissions of learned advocate Mr. H.S. Munshaw and learned advocate Mr. Premal Rachh, Mrs. Pahwa has submitted an affidavit-in-rejoinder, which is taken on record by the consent of the parties during the course of submissions.

7. As against this, learned advocate Mr. Premal Rachh appearing on behalf of respondent no. 4 has vehemently submitted that the orders passed are sufficient enough to indicate that the same have been passed in due discharge of their statutory functions and have acted well within

C/SCA/13191/2020 ORDER DATED: 25/10/2021

peripheral limits of their authority and the orders impugned are passed after due application of mind and in close compliance of the principles of natural justice, hence there is hardly, any reason to call for any interference, more particularly, when cogent reasons are also reflecting in such exercise of discretion and as such, extra ordinary jurisdiction equitable in nature may not be exercised in favour of the petitioner. On the contrary, after going through the record, learned advocate Mr. Rachh has submitted that the decisions which have been relied upon by the learned advocate appearing for the petitioner, are not exactly similar to the case on hand and further the contention which has been relied upon with regard to provisions of Section 30(1) (g) of the Gujarat Panchayats Act is of no avail to the petitioner since explanation 1 itself is making it clear that it does not relates to a contract and that being so, reliance which has been placed by learned advocate Mrs. Pahwa about it is of no avail. The explanation which has been tried to be pressed, the same is not attracting to the present controversy on hand.

7.1. Learned advocate Mr. Rachh has further submitted that the conduct of the petitioner which has been analyzed by the authorities below is quite sufficient enough to indicate that the authority has taken justifiable action against the petitioner. A detailed affidavit-in-reply is filed by respondent no. 4 to which, learned advocate Mr. Rachh has drawn attention to it and has also placed reliance upon the few decisions. The averments which are made since is relevant, the Court would like to reproduce the same so as to indicate a clear stand of respondent no. 4.

"2.3] humbly say and submit as per the settled legal principles in order to maintain purity of the responsibility with which an elected member in a representative democracy is to work, a wide import has been given to the concept of direct or indirect interest in any work done by a panchayat or municipal body so as to ensure that there is no conflict of interest and duty of an elected representative.

C/SCA/13191/2020 ORDER DATED: 25/10/2021

3] In fact, petitioner has been misusing his post and position as a Sarpanch since past many years and has committed several illegalities and misappropriated funds of Panchayat as a Sarpanch/Incharge Sarpanch This fact is evident from several complaints filed by different parties, including by the present deponent, against the petitioner in past in respect of misuse and abuse of his power and post in the Gram Panchayat. Despite such complaints, reports of competent authorities, issuance of notices by the competent authorities and non-acceptance of the defence raised by petitioner in his reply to such notices, no further concrete and effective action was being taken against the petitioner by the respondent authorities as petitioner is highly politically influential person. I beg to annex communication dtd. 10.02.2021 addressed by T.D.O.. Jamkandorna in response to complaint dtd.24.02.2020 as also show cause notice dtd.27.01.2020 issued to the petitioner for taking action against him u/s.59(1) of the Act at Annexure 1-2'Colly.

3.1] It is pertinent to note at this stage show cause notice dtd.22.07.2020 (Page 27 of memo of petition) was issued to the petitioner in respect of 9 different bills raised by his son and payments made against the said bills by petitioner during his tenure as a Sarpanch of Gram Panchayat The defence raised by petitioner and documents annexed with his reply did.04.08.2020 (Page 28) is only to the effect that petitioner and his son are residing separately, having separate properties and this is the only JCB available in the village and therefore, such work could not have been undertaken from any other person. Thus, no such contentions as raised in the appeal or in the present petition or documents relied upon were produced before respondent no.2 T.D.O., in reply to the show cause notice. Thus, the defence raised by the petitioner now is nothing but an afterthought and concocted.

3.2] Even otherwise, the documents produced by the petitioner not only run contrary to his own reply to show cause notice but clearly appear to have been created and concocted to escape from the legal liability under the Act. As narrated herein above, in reply to the show cause notice petitioner stated that there is only one JCB and hence, work of JCB could not have been taken from any other person, whereas on the other hand petitioner has produced a comparative statement did 30.08.2017 at Annexure 'G' (Page 42) to show that quotations of three different parties, including his son, were invited and as rates quoted by his son were lowest, petitioner has approved his price and further giving work to him by signing on the said document. A bate perusal of the so-called quotations (page 43 to 45), which are undated, would reflect that same are nothing but an

C/SCA/13191/2020 ORDER DATED: 25/10/2021

eyewash and created documents. There is nothing on record to show that these quotations were invited for a particular work in a particular year It is projected by the petitioner that these quotations are invited and then comparative statement dtd. 30.08.2017 is approved by petitioner whereas latest bill out of 9 bills in respect of which payments are made by him to his son and for which show cause notice is issued is dtd. 08.06.2017 i.e. prior to the comparative statement dtd. 30.08.2017 sought to be relied upon by the petitioner.

3.3] Further, in similar such comparative statement dtd.25.07.2014 (Page 46) signed and approved by the petitioner on which reliance is placed reflects that rates quoted per hour are higher in the year 2014 than those allegedly quoted in the year 2017, which is highly improbable considering the rates of diesel increasing every year since past many years. Further, the petitioner has learnt that Shri Shivshakti Earthmovers, who is mentioned at Sr.no.2 in the comparative statement dtd.25.07.2014 and who has allegedly submitted undated quotation (Page 49/H) was not even in existence in the year 2014.

3.4] I humbly submit that all the above facts reveal that petitioner has not come with clean hands and documents relied upon by the petitioner are not genuine but bogus and concocted Even otherwise, without prejudice, the act of petitioner in awarding work order, approving rates quoted and making payments in respect of bills raised by his own son, is without following due process of law, contrary to provisions of Act and procedure prescribed under the rules framed thereunder, illegal as also malicious thereby rendering petitioner liable for disqualification and removal from the Panchayat. Further, no resolutions of Panchayat, before awarding work and for making payments of bills raised and which are the basis for issuance of show cause notice, are produced on record and only letter written by the clerk to Sarpanch and other such documents are produced to show that work was given to the son of petitioner upon oral instructions of Talati-cum-Mantri. These aspects clearly point out that no legal procedure as required under the Act and Rules framed thereunder have been followed. It is not permissible to petitioner to shirk his responsibilities by shifting burden on others, who are otherwise equally liable to be prosecuted if found to have not acted in accordance with law and in connivance with the petitioner. Even otherwise, the concocted material sought to be relied upon by the petitioner will not absolve petitioner from the disqualification incurred u/s.30(1)(g) as narrated herein-above."

7.2. To substantiate the stand, the decisions which have been relied upon

C/SCA/13191/2020 ORDER DATED: 25/10/2021

are also attached to the reply and by a separate note, the following decisions are in addition to aforementioned are relied upon as under :-

"(1) In the case of Arshiyabegum Shaikh Rabib v. State of Maharashtra & Ors., rendered in Writ Petition No. 7298 of2019 dated 26.06.2019.

(2) In the case of Harbhajan Singh v. Press Council of India reported in 2002 (0) AIJEL SC 10585."

8. After referring the aforesaid decisions, a contention is raised that the authorities have after due application of mind, come to a specific conclusion against the petitioner. Hence, in view of the scope of extra ordinary jurisdiction, such finding of fact concurrently held by the authorities below may not be substituted in absence of any other distinguishable material. Hence, requested to dismiss the petition.

9. Learned advocate Mr. H.S. Munshaw, appearing for the respondent

- authorities has submitted that while dealing grievance of the petitioner, if proper procedure as contemplated under the provisions of law, have been closely followed and after due compliance of principles of natural justice and upon critical analysis of the material, a conclusion is arrived at, hence, in absence of any patent illegality or perversity, there is hardly any case made out by the petitioner to call for any interference. Learned advocate Mr. Munshaw has vehemently submitted that it is not only on account of any solitary incident, but there are series of transactions which have taken place and based upon such, steps have been taken and in fact, it is undisputed position that at the time when work was entrusted to son, no procedure or Resolutions were passed and further with respect to release of payment in favour of son of the petitioner, no guidelines or norms are observed by the petitioner and these circumstances are sufficient enough to come to a conclusion that the petitioner has disqualified himself to be the head of the Panchayat. Hence, no case is made out to call for any

C/SCA/13191/2020 ORDER DATED: 25/10/2021

interference. According to learned advocate Mr. Munshaw, the conduct which is visible from the record, analyzed by the authorities is a clear example which can attract Section 30 of the Gujarat Panchayats Act and here is a case in which admittedly, son has been entrusted with the work, without following any procedure and there was only one JCB machine in the entire village and it is just with a view to side line the core issue, such kind of bald assertion is made, which is absolutely incorrect.

9.1. Learned advocate Mr. Munshaw has drawn attention of this Court to a detailed affidavit-in-reply which has been filed on page 124 of the petition compilation and then has submitted that before taking action, proper procedure is observed as required and in no case it is possible to construe that the decision making process is suffering from any vice. The following are the assertion made on oath to justify the stand, which the Court would like to reproduce hereunder, since written arguments were tendered by the petitioner.

"2. The Respondent No.2 submits that the Petitioner herein was elected as Sarpanch of Jamkandorna Gram Panchayat in the General Election held in the month of December, 2016 and took over the charge of the post in the month of January, 2017. It is submitted that complaints were received against the Petitioner about misuse of power and position by him as Sarpanch of the Gram Panchayat by way of assigning works to his son and a payment of huge amount and a copy of the complaint is annexed herewith and marked as Annexure-A The Respondent No 2 submits that immediately the Extension Officer (Revenue-1) of Jamkandorna Taluka Panchayat was addressed a letter dated 06.07.2020 to verify the record and submit his report along with copies of relevant record and a copy thereof is annexed herewith and marked as Annexure-B.

The Respondent no 2 submits that the Extension Officer of Jamkandorna Taluka Panchayat followed the instructions and looked into the matter and submitted his detailed report with relevant record dated 10.07.2020 indicating that the Petitioner as a Sarpanch of the Gram Panchayat has made payment of huge amount towards number of transactions to his son and copies of letter as well as

C/SCA/13191/2020 ORDER DATED: 25/10/2021

relevant record submitted therewith are annexed herewith and marked as Annexure-C (Colly.).

3. The Respondent No.2 submits that in view of this, it was prima- facie clear that the Petitioner herein has misused his power and position and favoured his son and therefore, he was issued a show cause notice on 22.07.2020 considering the provisions of Section 30(1) as well as 32 of Gujarat Panchayat Act, 1993 and copy thereof are annexed herewith and marked as Annexure-D.

The Petitioner herein submitted his reply dated 04.08.2020 offering lame excuse and a copy thereof is annexed herewith and marked as Annexure-E From a kind perusal thereof, it would be clear that the excuse offered by the Petitioner was that his son was staying separately and was having separate ration card as well as property and therefore, it was not a question of misuse of power and position and violation of the provisions of Gujarat Panchayats Act, 1993

4. The Respondent No.2 submits that after consideration of facts and material on record as well as the provisions of Section 30 and 32 of Gujarat Panchayats Act, 1993, he passed impugned order dated 29.08.2020 holding that the Petitioner was incurring disqualification and removed from the post of Sarpanch of the Gram Panchayat and a copy of the said reasoned order is annexed herewith and marked as Annexure-F.

5. The Respondent No.2 submits that the said order was challenged before the Respondent No.1 by way of filing Appeal by the Petitioner. It is stated that a detailed reply was filed on behalf of the Respondent no 2 in support of the impugned order dated 29.08.2020 and a copy thereof is annexed herewith and marked as Annexure-G. The Respondent No.2 submits that after hearing the present Petitioner, it was thought fit by the Respondent No.1 to reject the Appeal through a reasoned order after careful consideration of the matter from different angles and a copy of the order is annexed herewith and marked as Annexure-H. In view of the above mentioned facts and circumstances, the Respondent No.2 craves leave to state that as the Petitioner herein has misused his power and position and breached the provisions of Gujarat Panchayat Act, 1993, the impugned order dated 29.08.2020 is just and legal and therefore, the Hon'ble Court is most respectfully prayed not to grant any interim relief and reject the present Special Civil Application in limine with cost in the interest of justice."

C/SCA/13191/2020 ORDER DATED: 25/10/2021

9.2. In addition to this submission, learned advocate Mr. Munshaw has submitted that looking to the chronology of events, this is not a fit case in which any equitable relief deserves to be extended. Learned advocate Mr. Munshaw, at this stage has further submitted that whenever any entrustment of work to be made, proper Resolutions were being passed, but here is a case, when son of the petitioner was undertaking the work, the said set procedure is given a go-bye and it is surprising to note that even in a communication written by the Talati-cum-Mantri dated 23.03.2021 when the application was given for seeking record, it has been submitted that on inquiry, record is not available in the Panchayat. This is again a serious conduct on the part of the petitioner being in charge, which cannot be unnoticed. In addition to this, learned advocate Mr. Munshaw, during the course of submission has drawn attention of this Court to the guidelines which are issued by the State Government circulated amongst all the Panchayats in which a procedure is prescribed, norms are fixed as to how and in what manner, the contract to be executed, payments to be made for the work which is undertaken in the Panchayat and a close perusal of the same is clearly indicating that no such guidelines are observed by the petitioner. Hence, in overall submission of learned advocate Mr. Munshaw, this being not a fit case to show any leniency and the orders may not be disturbed and after submitting the aforesaid circumstance, a request is made to dismiss the petition.

10. Before dealing with the submissions at length made by both the sides, few circumstances which are reflecting from record, are not possible to be ignored by the Court, which deserves consideration while coming to an ultimate conclusion in the present proceedings.

10.1. First of all the approach then taken by the petitioner is a basic reply that son is residing separately, having different ration card and the

C/SCA/13191/2020 ORDER DATED: 25/10/2021

petitioner is not financially connected with son. Further the procedure aspects are to be dealt with by the Secretary/Talati-cum- Mantri of the Panchayats for which, liability cannot be shifted upon the petitioner. However, in the entire village, there was one JCB machine and as such, there was no alternate, but to entrust the work and in addition thereto, the JCB machine or other articles were not in the name of the petitioner and as such, there is hardly any question to initiate action against the petitioner. The emphasis which was made that there was one JCB machine in the village, such fact is falsified from the documents which are produced by the petitioner himself in the year 2014 as well as in the year 2017 when the rates were called for. Three parties have approached for the work ; (1) Shri Radheshyam Earth Movers; (2) Shri Shivshakti Earth Movers; (3) Shri Bansari JCB and as such, apparently the stand of the petitioner is not possible to be accepted. However, be that as it may, from the said documents and the rates contained in the chart which has been produced by the petitioner, it is revealed that the rates which were quoted in the year 2014 are found to be higher than the rates of subsequent years i.e. 2017 which may be seen from page 42 to 46 of the petition compilation.

10.2 It further appears from the record produced by the petitioner that undisputedly, there was no Resolution passed in the Panchayat for entrusting the work to son of the petitioner and the quotations which were sought were undated, which can also be seen from the record. Of course, this Court is not evaluating any factual matrix but since, insisted upon by the learned advocate for the petitioner, on verification of the record, as indicated, the aforesaid circumstance was quite visible and apparent. But nonetheless, it is not in dispute that no Resolution is passed by the Panchayat while giving work to son of the petitioner. This fact has also been candidly submitted even on 16.09.2021 which came to be recorded

C/SCA/13191/2020 ORDER DATED: 25/10/2021

in the order and visible from the order-sheet of the proceedings and as such, the defence which is tried to be projected appears to be half truth. It further appears from the record that whether son who is carrying on the business on account of the petitioner being Sarpanch, whether can be dealt with by virtue of effect of Section 30 of the Gujarat Panchayats Act. The said issue has been answered by the co-ordinate Bench of this Court in an order dated 08.10.2018 passed in Special Civil Application No.14353 of 2018, on the very issue which is involved in the present petition almost similar is dealt with in case of Saiyed Ismail SaiyadMiya v. State of Gujarat as referred to above. The relevant extract of the said decision is reproduced hereunder :-

"3. It is sought to be submitted by learned advocate Mr. K.P. Champaneri appearing for the petitioners that there was nothing on record to show that the petitioners had availed any benefit from the contract work awarded to their son by the Nandasan Gram Panchayat by passing a general resolution and therefore the petitioners could not be said to have incurred disqualification under Clause 9g) of Sub-Section (2) of Section 30. He also submitted that the respondent no. 4 had exercised the powers under Section 32, disqualifying the petitioners without considering the factual aspects of the matter and therefore, the appeal was filed before the respondent no. 3, however, the same was also dismissed by the respondent no. 3 without considering the representation of the petitioners in the proper perspective.

4. In order to appreciate the contentions raised by the learned advocate appearing for the petitioners, it will be appropriate to reproduce the relevant provisions contained in the Section 30(1)(g) of the said Act, which read as under :-

"30 Disqualification-

(1) No person shall be a member of a panchayat or continue as such who-

(a) to (f) ****

(g) has directly or indirectly, by himself or his partner, any share or interest in any work done by order of the panchayat, or in any contract with, by or on behalf of, or employment with or under the panchayat; or"

C/SCA/13191/2020 ORDER DATED: 25/10/2021

5. Section 32 pertains to the disability from continuing as members of the gram panchayat. It states inter alia that if any member of a panchayat is subject to any disqualification as mentioned in sub-section 1 of Section 30 at the time of his election or during the term for which he has been elected, he shall be disabled from continuing to be a member and his office shall become vacant.

6. So far as facts of the present case are concerned, though it was contended by the learned Advocate appearing for the petitioners that they had not misused their position, as the members of the Gram Panchayat had passed the resolution for awarding the contract fro uplifting the solid waste to their own con, the said submission could not be accepted. If the contract was awarded to their son, it has been rightly held by the respondent authorities that the petitioners had an interest in the said contract awarded by the Panchayat. The said situation being squarely covered under Section 30(1) (g) of the said Act, the Court does not find any error in the impugned orders passed by the respondent authorities.

7. In that view of the matter, the petition being devoid of merits is dismissed."

10.3. Against this decision, Letters Patent Appeal is pending, but in specific terms interim relief is refused and as such prima facie the view expressed by the co-ordinate Bench as on day is not disturbed.

11. In light of the aforesaid circumstance, further a copy of the Resolution releasing the payment in favour of son of the petitioner is signed by the petitioner himself being Sarpanch, which may be seen from page 103 onward.

12. So far as show cause notice is concerned, the said show cause notice is clearly indicating the circumstances on the basis on which the petitioner was to be dealt with.

13, One another reply which has been given on 04.08.2019, to Taluka Development Officer by the petitioner against the application moved by

C/SCA/13191/2020 ORDER DATED: 25/10/2021

respondent no. 4 in which substantially three defences have been raised as indicated above which can be seen from page 29 and as such, in substance what has been indicated is that administrative work is to be looked after not by the petitioner. Further in the village there was only one JCB machine hence there was no alternate and as such, entrusted the work in the larger interest of public. It also transpires from the record that the machinery of JCB are not in the name of petitioner..

14. Now on the basis of the aforesaid circumstance, both the authorities below have come to the conclusion in specific terms that the petitioner has incurred disqualification and by a detailed order after considering every circumstance and material, is passed by the authority in exercise of power under Section 32 of the Gujarat Panchayats Act and since every material is considered, by extending appropriate opportunity of hearing to the petitioner, the said exercise undertaken by both the authorities below cannot be said to be perverse in any form and on the contrary, it reflects proper application of mind as well.

15. Now before dealing with the submissions of the learned advocate for the petitioner and the respondents, the scope of petition also cannot be ignored by the Court. This petition is basically filed under Article 226 of the Constitution of India and the scope of such exercise of jurisdiction is well defined by now in a catena of decisions and in a recent past, the Hon'ble Supreme Court has propounded and then observed, as such para 16 and 18 are reproduced hereunder from the said decision in the case of Sanjay Kumar Jha v. Prakash Chandra Chaudhary & Ors., reported in (2019) 2 SCC 499.

""16. In exercise of discretionary power of judicial review under Article 226 of the Constitution, the High Court might interfere with administrative matters only if the decision is violative of fundamental or basic principles of justice and fair play or suffers from any patent

C/SCA/13191/2020 ORDER DATED: 25/10/2021

of flagrant error. It is true that the High Court might rectify, in exercise of its power of judicial review, an error of law or even an error of fact, for sufficient reasons, if the error breaches fundamental or basic principles of justice or fair play or if the error is patent and/or flagrant, but not otherwise. However, even in cases where the High Court finds an apparent factual error which goes to the root of the decision, the appropriate course of action would be to given the opportunity to the authority concerned to rectify the error. It is only in the rarest of cases, where the factual error is so obvious that is rectifiable by the Court itself, that the Court might, to prevent delay and consequential denial and/or miscarriage of justice, rectify the error.

18. It is not for the High Court, exercising jurisdiction under Article 226 of the Constitution of India to embark upon a comparative assessment of the suitability of different candidates for appointment of a dealer of a retail outlet. The High Court, in our view, should not have decided the factual question of whether the land of respondent Prakash Chandra Chaudhary was in Giriyama in view of the report of the Additional Collector, District Magistrate and Circle Officer concerned to the effect that the land of respondent Prakash Chandra Chaudhary was in Falka block and not within Giriyama. The High Court patently erred in brushing aside the reports of the Revenue Authorities and arriving at a different finding."

16. This view is also reiterated further in the case of Mohd. Inam Vs. Sanjay Kumar Singhal and Others reported in (2020)7 SCC 327, as well, however, this Court is of the opinion that there is no absolute banned, the Court can exercise discretion provided patent illegality or irregularity is visible, which goes to the very root of exercise of jurisdiction.

17. At this stage, an affidavit-in-rejoinder which has been filed making an attempt to produce the same Resolution of the Panchayat, but it is too late in the present case. These documents as well were not forming part of the decision making process of authorities below which are questioned in the petition.

18.     In light of the aforesaid circumstance,        the relevant provisions





     C/SCA/13191/2020                                     ORDER DATED: 25/10/2021

which is centering around the controversy is Section 30 to be observed in first point of time. Section 30 of the Gujarat Panchayats Act relates to disqualification since the same is relevant, the Court deems it proper to reproduce hereunder :-

"30. Disqualification of - (1) No person shall be a member of a panchayat or continue as such who-

(a) has whether before or after the commencement of this Act, been convicted-

(i) of an offence under the Protection of Civil Rights Act, 1955 or under the Bombay Prohibition Act, 1949, unless a period of five years, or such lesser period as the State Government may allow in any particular case, has elapsed since his conviction; or

(ii) of any other offence and been sentenced to imprisonment for not less than six months, unless a period of five years, or such lesser period as the State Government may allow in any particular case, has elapsed since his release; or

(b) has been adjudged by a competent court to be of unsound mind; or

(c) has been adjudicated an insolvent and has not obtained his discharge; or

(d) has been removed from any office held by him in any panchayat under any provision of this Act or in any panchayat before the commencement of this Act under the Gujarat Panchayats Act, 1961 and a period of five years has not elapsed from the date of such removal, unless he has, by an order of the State Government notified in the official Gazette been relieved from the disqualification arising on account of such removal from office; or

(e) has been disqualified from holding office under any provision of this Act and the period for which he was so disqualified has not elapsed; or

(f) holds any salaried office or place of profit in the gift or disposal of any panchayat, other than an office of President or Vice-President of a panchayat or of a Chairman of any

C/SCA/13191/2020 ORDER DATED: 25/10/2021

Committee of a panchayat, while holding such office or place;

or

(g) has directly or indirectly, by himself or his partner, any share or interest in any work done by order of the panchayat, or in any contract with, by or on behalf of, or employment with or under the panchayat; or

(h) has directly or indirectly, by himself or, his partner, any share or interest in any transaction of loan of money advanced to or borrowed from any officer or servant of any panchayat; or

(i) fails to pay any arrears of any kind due by him to the panchayat or any panchayat subordinate thereto or any sum recoverable from him in accordance with Chapter X of this Act, within three months after a special notice in accordance with the rules made in this behalf has been served upon him;

or

(j) is a servant of the Government or a servant of any local authority; or

(k) has voluntarily acquired the citizenship of a Foreign State or is under any acknowledgment of allegiance or adherence to a Foreign State; or

[(kk)has no facility of water closet or privy accommodation at the place of his ordinary residence:

Provided that a sitting member shall be deemed to have incurred disqualification if he does not submit to the Taluka Development Officer of the taluka, within six months from the date of commencement of the Gujarat Local Authorities Laws (Amendment) Act, 2014, a certificate issued by the Gram Panchayat Mantri of the panchayat in whose jurisdiction his ordinary residence is situated, to the effect that he is having facility of water closet or privy accommodation at the place of his ordinary residence.

Explanation.- For the purpose of this clause, "water closet or privy accommodation" shall have the same meaning as is given to the term "water closet" in Explanation to section 107 of the Act;]

C/SCA/13191/2020 ORDER DATED: 25/10/2021

(l) is disqualified under any other provision of this Act, and the period for which he was so disqualified has not elapsed;

Explanation 1.- A person shall not be disqualified under clause

(g) for membership of a panchayat by reason only of such person--

(a) having share in any joint stock company or a share or interest in any society registered under any law for the time being in force which shall contract with or be employed by or on behalf of any 1panchayat; or

(b) having a share or interest in any newspaper in which any advertisement relating to the affairs of any panchayat may be inserted; or

(c) holding a debenture or being otherwise concerned in any loan raised by or on behalf of any panchayat; or

(d) being professionally engaged on behalf of any panchayat as a legal practitioner; or

(e) having any share or interest in any lease of immovable property in which the amount of rent has been approved by the taluka panchayat in the case of a village panchayat, or by the taluka panchayat or by the district panchayat in its own case or in any sale or purchase of immovable property or in any agreement for such lease, sale or purchase;

or

(f) having a share or interest in the occasional sale to the panchayat of any article in which he regularly trades or in the purchase from the panchayat of any article, to a value in either case not exceeding in any year one thousand rupees; or

(g) merely being a relative of a person in employment with or under or by or on behalf of the panchayat.

Explanation 2.-For the purpose of clause (i) --

(i) a person shall not be deemed to be disqualified if he has paid the arrears or the sum referred to in clause (i) of this sub- section, prior to the day prescribed for the nomination of candidates;

(ii) failure to pay the arrears or the sum referred to in clause

C/SCA/13191/2020 ORDER DATED: 25/10/2021

(i) of this sub-section to the panchayat by a member of an undivided Hindu family or by a person belonging to a group or unit, the members of which are by custom joint in estate or residence, shall be deemed to disqualify all members of such undivided Hindu family or as the case may be, all the members of such group or unit.

Explanation 3.- For the purpose of clause (i) an officiating revenue or police patel or revenue or police patel who is an official or under the Bombay Hereditary Offices Act, 1874, or any other corresponding law for the time being in force, shall be deemed to be a servant of the Government.

(m) has more than two children:

Provided that a person having more than two children on the date of commencement of the Gujarat Local Authorities Laws (Amendment) Act, 2005 (hereinafter in this clause referred to as "the date of such commencement"), shall not be disqualified under this clause so long as the number of children he had on the date of such commencement does not increase:

Provided further that a child or more than one child born in a single delivery within the period of one year from the date of such commencement shall not be taken into consideration for the purpose of disqualification under this clause.

Explanation.- For the purpose of this clause,-

(i) where a couple has only one child on or after the date of such commencement, any number of children born out of single subsequent delivery shall be deemed to be one entity;

(ii) 'child' does not include an adopted child or children.]

(2) A person who at any time during the term of his office is disqualified under the Gujarat Provision for Disqualification of Members of Local Authorities for Defection Act, 1986 for being a member of a taluka panchayat or, as the case may be a district panchayat shall cease to hold office as such member.

[(3) A Person shall be disqualified to continue as a member of a Panchayat if such person has been declared as a defaulter voter under subsection (3) of section 34D subject to the

C/SCA/13191/2020 ORDER DATED: 25/10/2021

decision in appeal, if preferred under section 34E.]"

19. Now to deal with the disability from continuing to act as a member as case may be Section 32 is clearly significant which also deserves to be quoted :-

"32. Disability from continuing as members.-(1) If any member of a panchayat,

(a) who is elected, as such, was subject to any of the disqualifications mentioned in 1 [sub-section (1) of section 30] at the time of his election,

(b) during the term for which he has been elected, incurs any disqualifications mentioned in 1 [sub-section (1) of section 30],

he shall be disabled from continuing to be a member, and his office shall become vacant.

(2) In every case, the question whether a vacancy has arisen, shall be decided by the competent authority. The competent authority may give its decision either on an application made to it by any person, or on its own motion, untill the competent authority decides that the vacancy has arisen, the member shall not be disabled under sub section (1) from continuing to be a member. Any person aggrieved by the decision of the competent authority may, within a period of fifteen days from the date of such decision, appeal to the State Government and the orders passed by the State Government in such appeal shall be final:

Provided that no order shall be passed under this sub-section by the competent authority against any member without giving him a reasonable opportunity of being heard."

20. The aforesaid fact of Section 30 of the Gujarat Panchayats Act in light of the present undisputed facts which are stated herein above is giving an impression that the some undue favour appears to have been given to son of the petitioner inasmuch as that though quotations were given by three companies, the work was entrusted to the son's company, but then, the stand that in the entire village there is only one JCB machine,

C/SCA/13191/2020 ORDER DATED: 25/10/2021

is falsified, looking at the record of the petition itself, and secondly for assigning work, no Resolution is passed which is an undisputed position. Every act of Panchayat must be backed by Resolution whereas here, admittedly, no Resolution was passed and, therefore, while interpreting Section 30 of the Gujarat Panchayats Act, this relevant circumstances are not possible to be unnoticed by the Court and additionally, the observations made by the co-ordinate Bench of this Court as indicated, precisely para 6 also cannot be give go-bye so long as the same are not disturbed. Hence, prima facie, the Court is of the view that Section 30 of the Gujarat Panchayats Act under which the petitioner is made disabled to hold the post is satisfying the test of relevant provision. Hence, in the considered opinion of this Court, no error appears to have been committed by the both the authorities below which concurrently held against the petitioner.

21. Much emphasis is laid down by the learned advocate for the petitioner on the decisions which have been relied upon, the first decision in the case of Gulam Yasin Khan (supra), in which it has been propounded that in order to incur disqualification, a person should have directly or indirectly any share or interest in any contract with, by or on behalf of the Committee, interest must be pecuniary or material and not mere sentimental or friendly interest and the Court was dealing with a situation in which son is in the employment of Municipality, on that mere ground of relationship, the Court has propounded that in absence of pecuniary or material, conflict of interest, disqualification cannot take place. But here, in the present case, the case is not related to any employment. Here is a case in which the work contract was entrusted to son of the petitioner and thereto, by ignoring the entire procedure. A close perusal of Section 30(1)

(g) of the Gujarat Panchayats Act, Explanation - 1 is stipulating that a person shall not be disqualified under clause (g) from membership of

C/SCA/13191/2020 ORDER DATED: 25/10/2021

Panchayat by reason only of such person.

                              xxx     xxx     xxx
                              xxx     xxx     xxx

(g) merely being a relative of a person in employment with or under the or by on behalf of the panchayat. The word employment is specifically mentioned in it and as such, if any other decision relates to contractual work, learned counsel is unable to point out.

21.1 By referring to the decisions delivered by the Hon'ble Supreme Court in the case of Gulam Yasin Khan (supra) in which, the case was relating to a son in the employment of Municipality and as such, in that context, the Hon'ble Supreme court has propounded that merely on the ground of relationship that his son cannot be said to be either directly or indirectly interested in his employment and as such, looking to the specific provisions contained herein, this decision since not relates to work of contract it is difficult for this court to apply the same here on case on hand where the question of employment of son is not there.

21.2. Similarly in the case of yet another decision in the case of Hirjibhai Haribhai Trambadia (supra) wherein also, it was propounded that merely because the son or daughter of member of Panchayat was in service of an institution run by the Panchayat, would not by itself disqualify the concerned member as Panchayat member. Here also, the said decision relates to an issue of employment in the Panchayat and as such, unable to apply the same here on case on hand.

21.3. Further, so far as decision delivered by the Bombay High Court in the case of P.A. Inamdar (supra) is concerned, in which, by referring to para 6 and 7, a contention is raised to grant the reliefs, but the decision is quite on distinct circumstance and difficult to apply and, hence reliance which has been placed is of no avail to the petitioner.

C/SCA/13191/2020 ORDER DATED: 25/10/2021

21.4. Yet another decision which is tried to be referred to is the decision in the case of Sau Dhrupadbhai Laxmanrao Mhaske (supra) wherein the Court has examined Section 14 of the Bombay Village Panchayat Act again in which, reliance appears to be on the issue relating to the employment in Panchayat and as such, none of the decisions which are cited by the learned advocate for the petitioner are of any assistance to the petitioner.

21.5. Further, the learned advocate for the petitioner has referred to a decision delivered by the Apex Court in the case of Opto Circuit India Ltd. (supra) to canvass the proposition that the stand cannot be altered, added or improved by way of affidavit, but here, on the contrary, quite in conflict with this proposition, the petitioner himself has made an attempt to submit an affidavit-in-rejoinder with a view to improve the stand and submitted only on 16.09.2021 whereas, the stand of the authority was already reflecting on record and as such, this decision cannot be in any way help out the petitioner to seek any equitable relief. So far as the issue related to reflection of show cause notice in question is self explanatory and in that context the petitioner has from beginning defended the proceedings and not raised such kind of grievance. As a result of this, there appears to be no infirmity in impugned orders.

22. So in overall circumstances prevailing on record, it appears to this Court that no case is made out to call for any interference under Article 226 of the Constitution of India. Hence, in view of the discussion made herein-above, the petition lacks merits and the same accordingly, is dismissed hereby. Notice is discharged with no order as to costs.

(ASHUTOSH J. SHASTRI, J) phalguni