Gujarat High Court
Mohammad Ishak Mohammadbhai ... vs Additional Development ... on 20 January, 2022
Bench: A.Y. Kogje
C/SCA/2615/2020 ORDER DATED: 20/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2615 of 2020
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MOHAMMAD ISHAK MOHAMMADBHAI MAREDIYA
Versus
ADDITIONAL DEVELOPMENT COMMISSIONER, STATE OF GUJARAT
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Appearance:
MR SUBRAMANIAM IYER(2104) for the Petitioner(s) No. 1
for the Respondent(s) No. 2
MR AYAAN PATEL, AGP for the Respondent(s) No. 1
MR MM SAIYED with MR ARBAAZKHAN A PATHAN (9532) for the
Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 20/01/2022
ORAL ORDER
1. This petition under Article 226 of the Constitution of
India is filed with prayers as under:-
"(A) That the Hon'ble Court be pleased to admit and
allow this petition.
(B) That the Hon'ble Court be pleased to issue a writ
of Mandamus or a writ of Certiorari or any other
appropriate writ or order holding that -
the impugned order Annexure-A dated 25-7-2019
passed by Respondent No.2 and the impugned
order Annexure-B dated 9-1-2020 passed by
Respondent No.1 are absolutely illegal, arbitrary
and passed in clear violation of section 57 of the
Gujarat Panchayats Act and consequently, the
Hon'ble Court be pleased to quash and set aside
the same and direct the authorities to permit the
C/SCA/2615/2020 ORDER DATED: 20/01/2022
petitioner to resume his duty as Sarpanch of the
Bhagal (J) Gram Panchayat.
(C) Pending admission and final disposal of the
petition, the Hon'ble Court be pleased to stay the
implementation of impugned orders Annexure-A
and Annexure-B.
2. The issue pertains to removal of the petitioner as a
Sarpanch in exercise of powers under Section 57 of the Gujarat
Panchayats Act, 1993, where the petitioner has been alleged to
have indulged in misconduct while while carrying out certain
development work. The issue being that for the purpose of
development work, though technical sanction was received, there
was no administrative sanction from the Taluka Development
Officer before carrying out the work and making payment for such
development work.
3. Learned Advocate for the petitioner, relying upon
certain judgments of this Court, would submit that the allegations
against the petitioner would not constitute misconduct, more
particularly when there is no allegation of siphoning of money and
that the authorities were well aware of the execution of
development work. It is also submitted that the resolution to carry
out development work was passed and the agreement when
Panchayat was executed in favour of the contractor.
3.1 It is also submitted that the entire proceeding against
C/SCA/2615/2020 ORDER DATED: 20/01/2022
the petitioner for removing him as Sarpanch was initiated at the
behest of third party, respondent No.3 herein, who had no stake
and had no locus to initiate any proceeding against the petitioner.
3.2 It is lastly submitted that term of the petitioner as a
Sarpanch has already expired and that there is no disqualification
incurred by the impugned order. However, as the petitioner is to
carry stigma, the petitioner is prosecuting the present petition.
4. Learned AGP submitted that the impugned orders do
not indicate anything with regard to agreement between the
Panchayat and the contractor nor does record indicate that there
was existence of any MB Book or record of completion certificate
so as to justify payment made by the Panchayat by way of cheque
to the contractor under the signature of the petitioner and Talati-
cum-Mantri. What has been recorded in the impugned order would
indicate that there is no record with regard to agreement between
the Panchayat, MB Book indicating about progress in work and the
completion certificate on the basis of which payment would have to
be made to the contractor.
5. Learned Advocate Mr.Saiyed appearing for respondent
No.3 submitted that it cannot be said that respondent No.3 is a
third party who had no locus as he is also an elected member and
has been supported by 8 other members of the Panchayat who have
unanimously stated there there was no proceeding in Panchayat
C/SCA/2615/2020 ORDER DATED: 20/01/2022
with regard to grant of development work to the contractor and
there is nothing on record to indicate that there was any
agreement between the Panchayat and the contractor. In fact,
there was no tender issued by which the contractor was selected
for carrying out the development work.
5.1 It is also submitted that the authorities, while
considering the case of the petitioner, have given a categoric
finding that no record is produced with the authorities which the
petitioner is now seeking to rely upon before this Court.
6. At this stage, learned Advocate for the petitioner, while
addressing the Court through video conferencing, makes a
statement that there exists an agreement between the Panchayat
the the contractor; there also exists record of MB Book to indicate
progress in the work and also a completion certificate issued to
justify the payment.
7. All these documents, in the opinion of the Court, are
relevant documents which ought to have been placed before the
authorities. The authorities, not equipped with such documents,
would not come to conclusion as to whether misconduct has taken
place. If say of the petitioner is to be believed that the documents
were indeed placed on record then also, not referring to such
documents while passing the order, will also have its own
consequences.
C/SCA/2615/2020 ORDER DATED: 20/01/2022
8. Considering the stage at which now the petition lies,
i.e. to say that term of the petitioner as a Sarpanch is now over by
efflux of time, therefore accepting say of the respondents that the
petition may be rendered academic, the Court is not inclined to
further probe into the matter. However, considering the
submission of learned Advocate for the petitioner that the
petitioner may not have to carry on with the stigma, relegates
matter back to respondent No.2 - District Development Officer,
Banaskantha for a fresh look into the matter by considering the
documents in the form of agreement between the Panchayat and
the contractor, MB Book and the completion certificate. If such
documents are not on record, it will be open for the petitioner to
place the same. It will also be open for the respondents to contest
existence of such documents. While giving a fresh look to the
matter, respondent No.2-District Development Officer is directed to
give opportunity of hearing to the petitioner as well respondent,
including private respondent NO.3.
9. The petition stands disposed of.
(A.Y. KOGJE, J)
SHITOLE
