Gujarat High Court

Vikramsinh Samatsinh Chauhan vs State Of Gujarat on 20 October, 2022

Bench: Sandeep N. Bhatt

    C/SCA/11941/2022                                    CAV JUDGMENT DATED: 20/10/2022




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 11941 of 2022


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE SANDEEP N. BHATT                             Sd/-

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1 Whether Reporters of Local Papers may be allowed YES to see the judgment ?

2 To be referred to the Reporter or not ? YES

3 Whether their Lordships wish to see the fair copy NO of the judgment ?

4 Whether this case involves a substantial question NO of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== VIKRAMSINH SAMATSINH CHAUHAN Versus STATE OF GUJARAT ========================================================== Appearance:

MS KRUTI M SHAH(2428) for the Petitioner MR MEET THAKKAR, AGP for the Respondent(s) No. 1 - State MR TANMAY B KARIA(6833) for the Respondent(s) No. 2 - Panchayat ==========================================================

CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

Date : 20/10/2022

CAV JUDGMENT

1. The petitioner has challenged the orders

impugned :- (i) dated 28.03.2022 passed by the Additional

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Development Commissioner, Gujarat State, Gandhinagar

in Appeal No.67 of 2022 and (ii) dated 01.10.2021 passed

by the District Development Officer, Panchmahalas under

Section 57(1) of the Gujarat Panchayats Act, 1993,

whereby the petitioner is removed from the post of

Sarpanch.

2. Heard learned advocates for the respective

parties. Rule. Learned advocates waive service of notice

of rule on behalf of respective respondents.

3.1 Ms. Kruti M. Shah, learned advocate for the

petitioner has submitted that the impugned orders are

illegal, against the facts on record and without giving proper opportunity of defending the case and therefore,

the same are required to be quashed and set aside.

3.2 She has further submitted that pursuant to

the first show-cause notice dated 30.07.2021 issued by

the District Development Officer, the petitioner has

explained each and every allegations made in the said

notice by his reply dated 09.08.2021 along with

documentary evidence and the authority has withdrawn

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the said notice on the same day.

3.3 She has also submitted that the authority has

issued another show-cause notice dated 13.09.2021 by

making further serious allegations against the petitioner.

She has submitted that no whisper of any allegations of

the second show-cause notice, was there in the first

show-cause notice.

3.4 She has submitted that the authority has, on

one hand in the first show-cause notice, given finding

that the petitioner has completed all the works within

the expenditures provided and he has maintained all

registers, voucher files, whereas on the other hand in the second show-cause notice, the very authority has given

contrary reasons, which speaks volume about mala fide

intention on the part of the authority itself. She has

submitted that the entire proceedings are initiated under

the political pressure as the wife of the present petition

has contested the election as Apaksh candidate and

therefore, keeping vengeance upon him and to bring

pressure for withdrawal of the candidature of the wife of

the petitioner, the entire proceeding has been initiated

C/SCA/11941/2022 CAV JUDGMENT DATED: 20/10/2022

against the petitioner by the Authorities.

3.5 She has submitted that one of the grounds in

show-cause notice is not connected with tenure of the

petitioner in his office. She has submitted that this is

not a case of financial loss to the Panchayat, as alleged

by the Authorities in the show-cause notice, as the

petitioner has produced all the documents along with

bank statement to show that not a single penny of

Panchayat funds has been misappropriated by the

petitioner. She has submitted that it is an abuse of

powers by the Authorities and therefore, the order

removing the petitioner from the post of Sarpanch is

beyond the scope of Section 57(1) of the Act.

3.6 In support of her arguments, she has relied

upon the following judgments :

(i) AIR 2011 Gujarat 159 - Vakatar Bhagvanjibhai Devabhai versus Additional Development Commissione (Paras : 8 to 14)

(ii) 2011 (4) GLR 3130 - Raysangbhai Ranchhodbhai Thakor versus State of Gujarat (Paras : 10 to 15)

(iii) Special Civil Application No.7748 of 2021 - Ashokbhai

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Kanubhai Mangroliya versus State of Gujarat (Para : 6)

(iv) (2000) 2 GLR 222 - Kamlaben Rohitbhai Patel versus Additional Development Commissioner (Paras : 6 & 9)

(v) 2002 (3) GLH 739 - Kanakbhai Narsangbhai Padhar versus State of Gujarat (Paras : 7 and 10)

(vi) 2013 (2) GLR 1257 - Dashrathlal Ishwarlal Patel versus State of Gujarat (Paras : 15 to 33)

(vii) 2009 (3) GLR 2167 - Dipakbhai Mohanbhai Patel versus K.S. Patel (Paras : 34 & 35)

(viii) 1996 (2) GLR 2 - Laladhar Pragji versus State of Gujarat (Paras : 4 to 6)

(ix) 1996 (2) GLR 349 - Udaysinh Shankersinh Zala versus S.D. Vadera, Additional Development Commissioner (Para : 3)

(x) 2000 (1) GLR 32 - Harsukhbhai Gordhanbhai Hadvani versus State of Gujarat (Para : 5)

3.7 She has submitted that this petition may be

allowed.

4.1 Per contra, Mr. Meet Thakkar, learned AGP for the State has submitted that the two authorities

below have concurrently found that the petitioner has

committed financial misappropriation of the funds of the

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Panchayat in the matter of payments for works. He has

submitted that the petitioner has abused his position as

Sarpanch. He has submitted that the authorities have

rightly come to the conclusion and passed the impugned

orders. He has submitted that this Court may not

interfere with the impugned orders in exercise of powers

under Article 226 of the Constitution of India.

4.2 He has submitted that the petitioner has not

maintained all the documents and/or registers in proper

format and in proper way and not maintained at all. He

has submitted that during the course of inspection, the

authorities have found that the petitioner has not

maintained the register of the work done by him during his tenure and therefore, it is not tallied with the work

done by him vis-a-vis register vis-a-vis grant utilised by

him in which public work. He has submitted that the

authorities has observed that there are many public

works which were not done by the petitioner. He has

submitted that the petitioner was unable to produce the

record/ documents which are required to be produced /

maintained. He has submitted that the petitioner has not

invited tenders and thereby committed breach of the

C/SCA/11941/2022 CAV JUDGMENT DATED: 20/10/2022

financial rules, as observed by the authorities. He has

submitted that the authorities have rightly passed the

impugned orders.

4.3 In support of his arguments, he has relied

upon the following judgment :

2015 AIJEL_HC 232647 - Motiben Desabhai Dhandhal versus State of Gujarat (Paras : 6 to 10)

4.4 He has submitted that this petition may be

dismissed.

5.1 Mr. Tanmay Karia, learned advocate for

respondent No.2 - Panchayat has vehemently opposed this petition and has submitted that proper opportunity

was given to the petitioner to defend his case. He has

submitted that the petitioner was given opportunity on

20.09.2021, 27.09.2021 and 30.09.2021 by the Authorities.

He has submitted that the petitioner has given his reply

on 30.09.2021. He has submitted that after considering

the reply of the petitioner dated 30.09.2021, the

Authorities have removed him vide order dated

01.10.2021.

C/SCA/11941/2022 CAV JUDGMENT DATED: 20/10/2022

5.2 He has further submitted that the first show-

cause notice dated 30.07.2021 was issued on the basis of

the report of the Taluka Development Officer dated

23.07.2021 and second show-cause notice dated 13.09.2021

is issued on the basis of the reports of the Taluka

Development Officer dated 09.09.2021 and 10.09.2021.

5.3 He has submitted that when the work was

inspected by the Authorities, the construction of Nala

under the A.T.V.T. Scheme was not completed, which

should be completed in time. He has submitted that

there are discrepancies in the photographs produced by

the petitioner, so also in maintaining the property register.

5.4 He has further submitted that the closing

balance was shown as Rs.2,86,250/- against the amount

of Rs.2,91,000/- credited in the account of the Panchayat

and therefore, there is clear misappropriation of funds of

the Panchayat. He has also submitted that there is no

concrete proof produced by the petitioner regarding the

expenditure incurred for COVID-19 Centre, mark

C/SCA/11941/2022 CAV JUDGMENT DATED: 20/10/2022

distribution and sanitization work. He has submitted that

the petitioner has been removed from the post of

Sarpanch based on the charges levelled against him and

therefore, no illegality can be said to have been

committed by the Authorities. The Authority has

therefore rightly used of powers under Section 57(1) of

the Panchayat Act against the petitioner.

5.5 He has further submitted that there are

disputed questions of fact in the present matter and

therefore, in view of the catena of judgments of the

Hon'ble Apex Court, this Court may not warrant

interference.

5.6 He has submitted that this petition may be

dismissed.

6.1 I have considered the submissions of the rival

parties. I have also considered the contentions raised by

the petitioner as well as by the respondents. I have also

perused the record produced with the petition. I have

also considered the affidavit in reply filed by the

contesting respondent/s. Considering the same, it

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transpires that there are many irregularities in the work

/ procedure done by the petitioner. There are

discrepancies in the statement prepared by the petitioner

for the Gram Panchayat and the statement produced

before the Authorities. It is a matter of record that the

petitioner has not invited tender before purchasing

particular items as per the rules. Further, it is an

undisputed fact that the petitioner has not received any

approval from the competent Authority under the Act for

making more expenses than his powers.

6.2 At this stage, it would be fruitful to refer to

the provisions of Section 55 of the Act as under :

"55. Executive functions of Sarpanch and Upa-

Sarpanch : (1) Save as otherwise expressly provided by or under this Act, the executive power, for the purpose of carrying out the provisions of this Act and the resolutions passed by a village panchayat shall vest in the Sarpanch thereof who shall be directly responsible for the due fulfilment of the duties imposed upon the panchayat by or under this Act. In the absence of the Sarpanch his power and duties shall, save as may be otherwise prescribed by rules, be exercised and performed by the Upa-Sarpanch.1993

C/SCA/11941/2022 CAV JUDGMENT DATED: 20/10/2022

(2) Without prejudice to the generality of the foregoing provision:-

(a) the Sarpanch shall-

(i) preside over and regulate the meeting of the panchayat;

(ii) exercise supervision and control over the acts done and actions taken by all officers and servants of the panchayat;

(iii) incur contingent expenditure upto 1 [five hundred rupees] at any one occasion;

(iv) operate on the fund of the panchayat including authorisation of payment, issue of cheques and refunds;

(v) be responsible for the safe custody of the fund of the panchayat;

(vi) cause to prepared all statements and reports required by or under this Act ;

(vii) exercise such other powers and discharge such other functions as may be conferred or imposed upon him by this Act or rules made thereunder,

(b) the Upa-Sarpanch shall-

(i) in the absence of the Sarpanch preside over and regulate the meetings of the panchayat;

(ii) exercise such of the powers and perform such of the duties of the Sarpanch as the Sarpanch may, from time to time delegate to him ;

(iii) in case the Sarpanch has been continuously absent from the village for more than fifteen days or is incapacitated to exercise the powers and perform the

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duties of the Sarpanch.

(3) In the absence of both the Sarpanch and the Upa- Sarpanch, every meeting of the panchayat shall be presided over by such one of the members present as may be chosen by the meeting to be Chairman for the occasion.

(4) Notwithstanding anything contained in clause (iv) of sub-section (2), no money shall be withdrawn from the fund of the panchayat except with the signature of the 2 [Sarpanch or a member of the panchayat authorized in that behalf by the panchayat, and the Secretary]. "

6.3 This Court finds that in the present case, the

petitioner is failed to discharge its duties as Sarpanch. There are many irregularities and/or discrepancies and/or

misappropriation of funds. The Authority has issued

notices to the petitioner for the same. The petitioner was

given ample opportunity to defend the case. Lastly, he

has filed his reply and considering the reply filed by the

petitioner, the Authority has passed the order impugned.

6.4 From the findings of the appellant authority

below, it transpires that the petitioner has

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misappropriated the funds of the Panchayat and the

petitioner is failed to produce the concrete proof against

the said allegations. Further, it transpires from the

record that the petitioner has not taken necessary

approval from the competent authority concerned before

some higher expenditure done by him. Further, it

transpires from the record that the petitioner has not

done his duties according to the procedure/ rules.

Further, the petitioner did not follow the accounting

procedure before making expenditure.

6.5 The Authority has issued notice/s to the

petitioner for all the irregularities, discrepancies and

misappropriation of funds of the Gram Panchayat, taken into consideration his reply / explanation and passed the

impugned order, in accordance with law.

6.6 At this stage, it is also relevant to keep in

mind the ratio laid down by this Court in the case of

Motiben Desabhai Dhandhal (supra), more particularly para : 9 thereof, which is as under :

"9. As per above provisions, amongst other things, the Sarpanch is required to exercise supervision and

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control over the acts done and actions taken by all officers and servants of the panchayat; to operate on the fund of the panchayat including authorisation of payment, issue of cheques and refunds; to be responsible for the safe custody of the fund of the panchayat; to cause to be prepared all statements and reports required by or under this Act. From the above requirements with other function to be performed by the Sarpanch, it would clearly appear that the responsibilities and duties of Sarpanch are not simply to be present as Sarpanch but to see that all works of the Sarpanch are properly done and funds on such works are spent according to the norms for the financial matters of the Panchayat."

6.7 The order impugned passed by the Authorities

is just and proper and as per the law and therefore,

does not require any interference by this Court. Further,

it is not the case where this Court has to exercise its

extra-ordinary jurisdiction under Article 226 of the

Constitution of India. This petition therefore deserves to

be dismissed.

7. There cannot be any dispute with regard to

the law enunciated in the decisions of the Hon'ble Apex

Court as well as this Court relied upon by the learned

advocate for the petitioner, however, it cannot be helpful

to the petitioner any further in view of the facts and