Rathava Alsingbhai Manajibhai vs State Of Gujarat
2022 Latest Caselaw 8945 Guj

     C/SCA/13651/2022                               ORDER DATED: 10/10/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 13651 of 2022

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                        RATHAVA ALSINGBHAI MANAJIBHAI
                                    Versus
                           STATE OF GUJARAT & ORS.
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Appearance:
MR PRUTHVIRAJSINH V SOLANKI(10190) for the Petitioner(s) No. 1
MR JYOTI BHATT, AGP for the Respondent(s) No. 1 & 2 - State
MR. NISARG N JAIN(8807) for the Respondent(s) No. 3,4
MR. MAULIK M SONI(7249) for the Respondent(s) No. 5
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                               Date : 10/10/2022

                                ORAL ORDER

1. The present petition is filed by the petitioner

with a prayer to set aside the order dated 19.05.2022

passed by the Taluka Development Officer, Devgadh

Baria, District Dahod, declaring the petitioner disqualified

as Sarpanch.

2. Heard learned advocates for the respective

parties.

3. Mr. Solanki, learned advocate for the petitioner

has submitted that the main grievance of the petitioner

is that he has removed from the post of Sarpanch by

C/SCA/13651/2022 ORDER DATED: 10/10/2022

invoking the provisions of Section 30(1)(m) of the Gujarat

Panchayats Act which is not applicable to the Sarpanch

and in view of Section 9 of the Act, the Sarpanch

cannot be considered as a Member of the Panchayat. He

has further submitted that once the election process is

over and the result is declared, the Authority can

challenge the same by way of an election petition only

before appropriate forum. He has submitted that

considering the averments made by the petitioner, this

petition may be allowed.

4. Per contra, Mr. Nisarg Jain, learned advocate for the contesting respondents no.3 and 4 has submitted

that the petitioner has alternative remedy under Section 258/259 of the Gujarat Panchayats Act. He has further

submitted that the issue raised by the petitioner that

the Sarpanch cannot be considered as a Member of the

Panchayat, is already decided by this Court by a

judgment rendered in the case of Vishnubhai Joitaram

Rathod versus State of Gujarat reported in 2009 (3) GLH 308 and therefore, the petition has no merit and is required to be dismissed.

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5. Learned AGP Ms.Bhatt for the State has

submitted that the impugned action of the authorities is

in accordance with law. She has submitted that now it

is well settled position of law that the provisions of

Section 30(1)(m) is applicable to the Sarpanch who is

also a Member of the village panchayat.

6.1 I have considered the submissions made by the

rival parties. I have also perused the record available

with this Court. Considering the facts and circumstances

of the case and also considering the ratio laid down by

this Court, it is found that the petition is misconceived

as the petitioner is having alternative remedy under

Sections 258/259 of the Gujarat Panchayats Act, which read as under :

"258. (1) The State Government may from time to time cause inquiry to be made by way of its officers in regard to any panchayat or matters concerning it or to any matters with respect to which the sanction, approval, consent or order of the State Government is required by this Act. (2) The Officer holding such inquiry shall have the powers of a court under the Code of Civil Procedure, 1908, to take evidence and to compel the attendance of witnesses and the

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production of documents for the purposes of the inquiry. (3) The State Government may make orders as to the cost of inquiries under subsection (1) and as to the parties by whom and the funds out of which they shall be paid and any such order may, on the direction of the State Government or the application of any person named therein, be executed as if it were a decree of a civil court.

259. The State Government may call for and examine the record of proceeding of any panchayat or of any committee thereof or of any officer for the purpose of satisfying itself as to the legality or propriety of any order passed and may revise or modify the order as it shall deem just."

6.2 Moreover, it is also relevant to note that, this

Court has decided the identical issue involved in this matter by a judgment rendered in the case of

Vishnubhai Joitaram Rathod (supra), more particularly Paras : 9 and 15 thereof.

"9. A plain reading indicates that no person shall be a Member of the Panchayat or continue as such a Member of the Panchayat if he incurs any of the disqualifications set out in clauses (a) to (m) under sub-sec. (1) of Section 30 of the Act. Clause (m) stipulates that a Member who has more than two children shall not be entitled to be a Member of the

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Panchayat. In other words, the disqualification is at both stages, namely, when a person contests the election and secondly during continuance of a membership if it is found that a person has more than two children. However, the two Provisos under clause

(m) carve out an exception in the contingencies specified in each of the Provisos.

15. In relation to the alternative contention that for removing a Sarpanch, action can be initiated only under Sec. 57 of the Act, suffice it to state that the factum of birth of a child on 9.12.2006 is not in dispute. The Show Cause Notice issued to the petitioner does not level any charge of misconduct in discharge of duty or any of the other charges stipulated by Sec. 57 of the Act. Therefore, the import of the order has to be gathered by reading an order as a whole and if the Authorities have merely stipulated removal of the petitioner from the post of Sarpanch while referring to provision of Section 30(l)(m) of the Act in exercise of powers under Sec. 32 of the Act, one has to understand that the action is for removing the petitioner from the membership of the Panchayat and not only from the post of Sarpanch, which he would otherwise also lose, once the membership is lost. Alternative contention therefore cannot be accepted."

6.3 From the above view, it is clear that the

Sarpanch is a Member of the Panchayat and the

provisions of Section 30(1)(m) of the Act is applicable.

6.4 Moreover, it is fruitful to refer to the

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provisions of Section 30(1)(m), 32 and 57 of the Act,

which read as under :

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

(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.]

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32. (1) If any member of a panchayat,

(a) who is elected, as such, was subject to any of the disqulifications 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 shll 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.

57. (1) The competent authority may remove from office any member of the panchayat, the Sarpanch or,

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as the case may be, the Upa-Sarpanch therof, after giving him an opportunity of being heard and giving due notice in that behalf to the panchayat and after such inquiry as it deems necessary, if such member, Sarpanch or, as the case may be, Upa-Sarpanch has been guilty of misconduct in the discharge of his duties or of any disgraceful conduct or abuses his powers or makes persistent default in the performance of his duties and functions under this Act or has become incapable of performing his duties and functions under this Act. The Sarpanch or, as the case may be, the Upa-Sarpanch, so removed may at the discretion of the competent authority also be removed from the membership of the panchayat.

(2) The competent authority may, after following the procedure laid down in sub-section (1) disqualify for a period not exceeding five years any person who has resigned his office as a member, Sarpanch or Upa- Sarpanch, or otherwise ceased to hold any such office and has been guilty of misconduct specified in sub- section (1) or has been incapable of performing his duties and functions:

Provided that an action under this sub-section shall be taken within six months from the date on which the person resigns or ceases to hold any such office;

(3) Any person aggrieved by an order of the competent authority under subsection (1) or (2) may, within a period of thirty days from the date of the

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communication of such order, appeal to the State Government."

6.5 Considering the controversy involved in this

matter, which is already decided by this Court as noted

above and also decided the executive function as head of

the Panchayat, therefore, there is no merit found in the

present petition. The present petition is required to be

dismissed.

7. For the reasons recorded above, the present

petition is dismissed. Notice is discharged.

(SANDEEP N. BHATT,J) M.H. DAVE