Gujarat High Court
Nasimmulgati Urfa Gani Gulamhussain vs State Of Gujarat on 17 April, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3593 of 2025
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NASIMMULGATI URFA GANI GULAMHUSSAIN
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR NAMAN K BRAHMBHATT(11307) for the Petitioner(s) No. 1
MS ROSHNI PATEL, AGP for the Respondent(s) No. 1
MS SEJAL K MANDAVIA(436) for the Respondent(s) No. 2
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 17/04/2025
ORAL ORDER
1. This petition is filed challenging the order dated
12.08.2024 passed under Section 57(1) of the Gujarat
Panchayats Act, 1993 (for short 'the Act, 1993') on the ground
that the same is contrary to the settled legal position whereby
the authority while passing the order removing the petitioner
from the post of Member of Olpad Group Gram Panchayat, has
not considered the provisions of Section 57, 59 and 30 of the
Act, 1993.
2. The facts giving rise to this petition are as under: -
The petitioner was elected as Member of Olpad Group
Gram Panchayat, Taluka Surat, District Surat in December,
2021. Thereafter, respondent No. 2 in exercise of his powers
conferred under Section 57(1) of the Act, 1993 issued show-
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cause notice dated 05.05.2023 (Annexure - B, Page No. 22)
calling for explanation, in relation to the allegations of show-
cause notice. Five days' time was given to the petitioner to
respond to the show-cause notice dated 05.05.2023. The
petitioner orally responded to the show-cause notice on
09.05.2023 and thereafter, an order dated 12.05.2023
(Annexure-D, Page No. 29) was passed removing the petitioner
from the post of Member of Olpad Group Gram Panchayat.
Aggrieved by the order dated 12.05.2023, the petitioner
preferred appeal under Section 57(3) of the Act, 1993. The said
appeal was decided vide order dated 31.01.2024 (Annexure-G,
Page No. 48), under Section 57(3) of the Act, 1993 by
respondent No. 1 - Additional Development Commissioner. By
appeal order dated 31.01.2024, the order of removal from
member of gram panchayat dated 12.05.2023, was quashed
and set aside. The matter was remanded to respondent No. 2 -
District Development Officer, for fresh consideration. Pursuant
to the order dated 31.01.2024 the District Development Officer
once again passed an order under Section 57(1) dated
12.08.2024, which is subject matter of the present petition. A
prayer to direct the appeal Authority to decide the appeal,
within stipulated time is also made.
3. Heard learned advocate Mr. Naman Brahmbhatt for the
petitioner and learned Assistant Government Pleader Ms.
Roshni Patel for respondent No. 1.
4. Learned advocate Mr. Naman Brahmbhatt for the
petitioner submitted that the order dated 12.08.2024 is bad in
law since it has failed to consider the provisions of Section 57,
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59 and 30 of the Act, 1993. Moreover, under order dated
31.01.2024, the Appeal Authority in Appeal No. 28 of 2024
while remanding the matter directed respondent No. 1 to
consider the application afresh keeping in mind the provisions
under Section 57, 59 and 30 of the Act, 1993 and also in light
of decision of this Court in the case of Haribhai Galbabhai
Patel and Anr. v.s Parmabhai Kanjibhai Parmar reported in
2000 (2) GLH 19. Learned advocate submitted that Sections 57,
59 and 30 of the Act, 1993 do not provide for removal of
Member from the post which has been done in this case. The
Section 57 of the Act 1993, provides removal or suspension of
Sarpanch or Up-sarpanch. Therefore, in absence of any
provision for removal of Member, the order deserves to be
quashed and set aside.
4.1 Moreover, the action to remove petitioner from the post
of Member of Gram Panchayat was initiated on account of
filing of FIR. Since, the initiation of proceedings by filing of
FIR has not attained finality, the order dated 12.08.2024, being
erroneous deserves to be quashed and set aside. The petitioner
has preferred appeal challenging the order dated 12.08.2024, in
August, 2024 and the same is pending. Earlier also SCA was
filed challenging the order dated 12.08.2024 and was
withdrawn. However, since even after period of 8 months the
appeal has not been decided, the principles of res-judicata
would not be applicable in this case.
4.2 By placing reliance on the decision of this Court in the
case of Haribhai Galbabhai Patel (supra), learned advocate
submitted that when the order dated 12.08.2024 removing the
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petitioner from the post of Member is without jurisdiction the
principles of res-judicata would not be applicable and
therefore, present petition may be considered for quashing and
setting aside the order dated 12.08.2024, or in the alternative,
direct appeal authority to decide the appeal urgently.
5. Inviting attention of this Court, learned Assistant
Government Pleader Ms. Roshni Patel for respondent No. 1
submitted that the order dated 12.08.2024, was subject matter
of challenge in Special Civil Application No. 13842 of 2024.
The said SCA was withdrawn and order dated 18.10.2024 was
passed. Once the petitioner had withdrawn the petition
challenging the order dated 12.08.2024, this petition may not
be entertained. Moreover, against the order dated 12.08.2024,
the petitioner has preferred an appeal and the same is
pending. Further, the allegations are serious in nature and
upon remand District Development Officer, has passed reasoned
order. Hence, this petition may not be entertained.
6. Considered the submissions and the decisions relied upon.
It is noticed that the petitioner was earlier served with a
show-cause notice dated 05.05.2023. In the Show- cause, the
reasons for proposed removal of the petitioner from the post of
Member of Olpad Group Gram Panchayat was recorded. Under
the said show-cause notice, five days' time was provided to
give reply. From the submissions it is gathered that the
petitioner responded orally, without filing of reply. Thereafter
an order dated 12.05.2023 was passed removing the petitioner
from the post of Member. The said order records the
involvement of the petitioner in certain act resulting into filing
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of FIR. Aggrieved by the order dated 12.05.2023, the petitioner
preferred appeal under Section 57(3) of the Act, 1993
(Annexure-E, Page No. 31). The said appeal was decided by
respondent No. 1 on 31.01.2024 wherein, considering the
submissions of the petitioner the order dated 12.05.2023 was
quashed and set aside. It was observed that the Remand
Authority may consider the provisions under Section 57, 59
and 30 of the Act, 1993 and the decisions relied upon.
Accordingly, the matter was reconsidered, resulting in to
passing of impugned order dated 12.08.2024.
7. It is true that alternative prayer in relation to direct the
appeal authority to decide the appeal is made; however, this
Court noticed that challenging the order dated 12.08.2014,
Special Civil Application No. 13842 of 2024 was filed wherein
this Court permitted withdrawal with the following observation:
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"4. Permission as prayed for by learned
advocate for the petitioner is granted. This
petition is disposed of as withdrawn without
entering into the merits of the matter. The
petitioner is permitted to file an application
seeking early hearing of his appeal dated
28.08.2024. It is open for the authority to
proceed with the appeal along with the stay
application in accordance with law."
8. Thus, despite withdrawal of petition challenging order
dated 12.08.2024, submissions were made that the order dated
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12.08.2024, is without jurisdiction and the same is contrary to
the settled legal position. In support of his submissions Learned
Advocate placed reliance on the decision in the case of
Haribhai Galbabhai Patel (supra); to submit that institution of
criminal proceedings, would not result into invoking provisions
of Section 57 of the Act 1993. Further, by placing reliance on
the decision of this Court dated 06.07.2025, in the case of
Mohammedali Ibrahim Chaudhary v.s State of Gujarat in
Special Civil Application No. 15192 of 2014 and cognate
petitions, learned advocate submitted that, similar view is
taken in this decision that institution of criminal proceedings,
would not result into invoking provisions of Section 57 of the
Act 1993. Reliance is also placed on one more decision dated
02.07.2025, in the case of Gulambhai Amibhai Parsana v/s
State of Gujarat, in SCA 16157 of 2013, for no initiation of
action under section 57 of the Act 1993, pending criminal
proceedings. For maintainability of the petition despite having
availed alternative remedy, learned advocate for the petitioner
relied upon decision in the case of Uttar Pradesh Power
Transmission Corporation Limited and Anr. v.s CG Power and
Industrial Solutions Limited and Anr reported in (2021) 6 SCC
15. It was submitted that irreparable loss has been caused to
the petitioner and therefore, the prayer with regard to
quashing and setting aside of the order dated 12.08.2024 is
made.
9. In the opinion of this Court the order dated 12.08.2024
was subject matter of challenge in Special Civil Application No.
13842 of 2024. The said petition was withdrawn, in view of
pendency of appeal. Permission to file stay application was
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also granted. Despite pendency of appeal and stay application,
this petitioner was filed and argued on merits by placing
reliance on several decisions, in the opinion of this Court
would amount to wasting of judicial time. Moreover, all these
contentions with the judgments, are taken as grounds in
pending appeal. Mere, non-hearing of appeal cannot be the
ground for filing this petition on the same subject matter. No
decision on appeal expeditiously, by the appeal authority would
not make the order dated 12.08.2024 illegal.
10. In view of above, this petition deserves to be rejected
and hereby rejected. Considering that despite withdrawal of
SCA 13842 of 2024 with a liberty to file appeal and despite
pendency of appeal, by arguing the matters on merits and by
taking the Court through various decisions that the order dated
12.08.2024 is not sustainable in the eye of law and deserves to
be quashed and set aside, this Court imposes costs of
Rs.10,000/- to the petitioner for wasting judicial time. The
costs of Rs.10,000/- shall be deposited before the Gujarat State
Legal Service Authority within a period of 10 days from the
date of receipt of the order.
11. In view of above, the present petition is disposed of as
rejected.
(MAUNA M. BHATT,J)
SHRIJIT PILLAI
