1. Rule. Mr.Rohan Yagnik, learned Assistant Government Pleader, waives service of notice of Rule for respondents Nos.1 and 2, Mr. Rajesh Chauhan, learned advocate for Mr.H.S.Munshaw, waives service of notice of Rule for respondent No.3, and Mr.Krunal D.Pandya, learned advocate, waives service of notice of Rule for respondent No.4.
2. By preferring this petition under Articles 226 and 227 of the Constitution of India, the petitioner has challenged the legality and validity of the order dated 09-02-2012 passed by the Additional Development Commissioner, confirming the order dated 02-01-2012, passed by the District Development Officer, Mehsana, whereby, the petitioner has been removed from the office of Sarpanch.
3. Briefly stated, the relevant facts of the case are as follows:
The petitioner was elected as Sarpanch of Mitha Gram Panchayat, in the year 2007. According to the petitioner, respondent No.4, who was defeated by him in the election to the said office, made several false complaints against him, acting upon which the District Development Officer (respondent No.3), after issuing a Show Cause Notice dated 01-05-2010, to the petitioner, passed an order on 19-07-2010, in exercise of powers under Section 57(1) of the Gujarat Panchayats Act, 1993 ('the Act' for short), removing the petitioner as Sarpanch. Against this order, the petitioner filed an appeal before the Additional Development Commissioner (respondent No.2) who, by order dated 05-09-2012, remanded the matter to respondent No.3 for proper inquiry, directing that adequate opportunity of hearing be given to the petitioner. The District Development Officer, after hearing the petitioner, passed the order dated 02-01- 2012, that has been confirmed in appeal by the Additional Development Commissioner by his order dated 09-02-2012, both of which are impugned in this petition.
3.1 The gist of the single charge against the petitioner, as contained in the Show Cause Notice dated 01-05-2010 is to the effect that the petitioner is alleged to have directed Kanjibhai Hargovanbhai Patel, a member of the Gram Panchayat, to empty three tractor-loads of mud, excavated from Gauchar land bearing Survey No.175, into a ditch near a place in the village known as Midiapir, in front of the Primary Health Centre, where water used to collect without permission of the competent authority or a Resolution of the Gram Panchayat authorising him to do so. The allegation against the petitioner is that he has sold the mud, for which the Royalty has been paid by Kanjibhai Hargovanbhai Patel at the rate of Rs.8640/-. It is alleged that the petitioner is responsible for this unauthorised act of excavation of mud, and has thereby acted in connivance with the member of the Gram Panchayat who has excavated the mud, without authorisation and for financial gains, therefore, proceedings for removal as Sarpanch under Section 57(1) of the Act are liable to be initiated against him.
3.2 The petitioner gave a detailed reply to the Show Cause Notice, explaining that dirty water and monsoon water used to accumulate in the ditch in front of the Primary Health Centre, giving rise to extremely unhygienic conditions. The water-logged ditch also posed a danger to the safety of village children, as there was every possibility that they could fall into it. The petitioner stated that he had received several oral complaints and representations from the people of the Village in this regard, therefore, he had requested a member of the Gram Panchayat who owned a tractor, to fill up the ditch with three tractor-loads of mud, without any charge, as a service to the village people. It is the specific case of the petitioner that in doing so, he has not derived any financial gain, whatsoever, and his actions have been purely motivated by good intentions, in order to prevent a mishap from taking place. In his reply, the petitioner has further elaborated that false complaints are being filed against him by respondent No.4, who is his defeated political rival, and who nurses a grudge against him. It is clarified by the petitioner that an amount of Rs.8640/- has been paid by Kanjibhai Hargovanbhai Patel, as Royalty for the mud that was dug up from Gauchar land. It is specifically denied by the petitioner that he has sold the mud or derived any financial gain from it. It is denied by the petitioner that he has acted in connivance with the member of the Gram Panchayat or abused his position as Sarpanch in any manner.
4. As already stated hereinabove, the first round of proceedings ended in an order of remand being passed by the Additional Development Commissioner. After remand of the matter, and after considering the reply of the petitioner, the District Development Officer, by his impugned order dated 02-01-2012, rendered three findings against the petitioner, to the following effect:
(1) The petitioner, on the say of Ashwinbhai Kanjibhai Patel, a member of the Gram Panchayat, got emptied one tractor-load of mud near the temple in Mitha Village, and has taken Rs.150/- towards labour charges, which mud was sold by him to another person, thereby deriving financial gain.
(2) As per the statement given by Kanjibhai Hargovanbhai Patel at Santhal Police Station on 02-08-2009, there is reason to believe that the petitioner, on the say of Ashwinbhai Kanjibhai Patel, has got one tractor-load of mud emptied near the temple at Mitha village, which was used for purposes other than public interest. The petitioner has, by acting in an unauthorised manner, abused his powers as Sarpanch by conniving with the member of the Gram Panchayat.
(3) The petitioner, being the Sarpanch, is the first citizen of the Village, therefore, he should have known that the mud was to be got only after due authorisation. In spite of being informed by the Talati-cum-Mantri several times in writing, the petitioner has not stopped the illegal activities of excavation of mud from Government land, but has encouraged such activities under the garb of public interest. The petitioner has acted in a manner that is unbefitting of the position of Sarpanch, and is indirectly responsible for the digging of the mud.
5. Upon the above findings, the District Development Officer held that the petitioner, having abused his power and position as Sarpanch of Mitha Gram Panchayat, be removed as Sarpanch, in exercise of powers under Section 57 (1) of the Act. This order has been confirmed by the Additional Development Commissioner, by order dated 09-02-2012.
6. Respondents Nos.3 and 4 have filed their affidavits-in-reply to the petition. The stand taken by respondent No.3 in his affidavit-in-reply, is to the effect that the petitioner is involved in a serious case of unauthorised and illegal excavation of soil from Gauchar land, and has failed to look after public properties and perform his duties as Sarpanch. It is stated that as there are concurrent findings of two authorities against the petitioner, the petition may be rejected. Respondent No.4 has denied that he has any political rivalry with the petitioner, and has stated that the petitioner has committed a number of irregularities and illegalities, therefore, the orders passed by respondents Nos.3 and 2 deserve no interference.
7. In the above factual background, the learned counsel for the respective parties have made detailed submissions before the Court.
8. Mr. Kamlesh D.Kotai, learned counsel for the petitioner has forcefully submitted that the petitioner is not very literate, therefore, he was not aware that permission had to be taken from the competent authority for filling up the ditch with mud. The action of the petitioner was purely motivated by public interest, with the safety of the village children in mind, who could have fallen into the ditch, with disastrous consequences and to prevent unhygienic conditions. It is further submitted that though, at the relevant point of time, the petitioner had not taken permission, however, on 03-06-2011 the Gram Panchayat passed a Resolution that the petitioner had acted for the public good and the Show Cause Notice issued to him be dropped. It is strongly urged by the learned counsel for the petitioner that there is absolutely no material on record to show that the petitioner has sold the mud to any person, or has derived any financial gain from it. On the contrary, an amount of Rs.8650/- has been paid by Kanjibhai Hargovanbhai Patel, member of the Gram Panchayat, as Royalty to the State Government, and no amount has been recovered from the petitioner. It is contended that the findings rendered against the petitioner by respondents Nos.3 and 2 do not amount to misconduct in the discharge of his duties, disgraceful conduct, or abuse of power. Neither is there material on record to show that the petitioner has made persistent defaults or has become incapable of performing his duties and functions as Sarpanch; therefore, as the ingredients of Section 57(1) of the Act are not satisfied, the impugned orders of respondents Nos.2 and 3 deserve to be quashed and set aside, and the petition, allowed.
9. The learned counsel for the petitioner has relied on a judgment of the Division Bench rendered in the case of Raysangbhai Ranchhodbhai Thakor v. State of Gujarat, 2011(2) GCD 1337 (Guj) (DB), in support of his submissions.
10. Mr. Rohan Yagnik, learned Assistant Government Pleader for respondents Nos.1 and 2, has supported the impugned orders of the authorities by submitting that they are well-reasoned orders, and are just and proper, deserving no interference by the Court.
11. Mr.Rajesh Chauhan, learned advocate, has appeared for Mr.H.S.Munshaw, learned advocate, for respondent No.3. He has mostly relied upon the affidavit-in-reply filed by respondent No.3. He has submitted that the petitioner, in his reply to the Show Cause Notice, has admitted that he got the mud for filling up the ditch without permission. It is contended that such an unauthorised act, at the behest of the Sarpanch of the Village, is a serious matter. The orders of the authorities constitute concurrent findings against the petitioner. That, proper opportunity of hearing has been granted to the petitioner, and from the material on record, it is clear that the petitioner has committed misconduct. It is urged that the petitioner was told by the Talati-cum-Mantri, not to encourage excavation of soil, therefore, the orders of removal passed by the authorities, being legal and valid, may be upheld.
12. The petition has also been opposed by Mr.Krunal D.Pandya, learned advocate for respondent No.4, by submitting that there is no political rivalry between respondent No.4 and the petitioner, as canvassed on behalf of the petitioner. This aspect is only being highlighted to cover up the misconduct of the petitioner. It is contended that respondent No.4, having found illegal excavation from Gauchar land going on, had immediately drawn the attention of the concerned authorities. That, as the findings against the petitioner are based on material on record, the court may not disturb the orders passed by respondents Nos.3 and 2.
13. The learned advocate for respondent No.4 has placed reliance upon a judgment of the Division Bench of this Court in Jitendrasinh Shivsinh Vansiya v. State of Gujarat, 2011(0) GLHEL-HC 225986, rendered in Letters Patent Appeal No.2998 of 2010 in Special Civil Application No.4115 of 2010, dated 03-10-2011 in support of his contentions, wherein the Division Bench has referred to its earlier ruling in the case of Raysangbhai Ranchhodbhai Thakore v.State of Gujarat (Supra), and has urged that the case of the petitioner is covered by this judgment, whereby the Division Bench had upheld the order of removal of the Sarpanch who was the appellant therein.
14. In rejoinder, the learned advocate for the petitioner has submitted that the judgment in the case of Jitendrasinh Shivsinh Vansiya v. State of Gujarat (Supra) would not be applicable to the case of the petitioner as in that case there were nine allegations against the Appellant therein, all of which were of a serious nature, out of which eight allegations stood proved; whereas in the present case there is only one allegation against the petitioner that has not been properly proved by the material on record. Even if it is assumed,though denied, that it is proved, it is not of such a serious nature so as to warrant removal.
15. I have heard the leaned counsel for the respective parties, perused the averments made in the petition and the documents annexed thereto,and have deeply considered the submissions advanced at the Bar.
16. Having already noticed the single charge/ allegation against the petitioner that has been found to be proved, it would be expedient to refer to the provisions of Section 57 of the Act, which read as below:
“57. Removal from office – (1) The competent authority may remove from office any member of the Panchayat, the Sarpanch or, as the case may be, the Upa-Sarpanch, thereof, 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 sub-section (1) or (2) may, within a period of thirty days from the date of communication of such order, appeal to the State Government.”
(emphasis supplied)
17. For the purpose of this petition, sub-section(1) of Section 57 is immediately relevant. The said provision of law contemplates five situations, the fulfillment of any one of which, would result in the removal of the Sarpanch. A Sarpanch, or an Up-
Sarpanch, as the case may be, can be removed from his office if, after giving notice and an opportunity of hearing, and due inquiry, he is found to be guilty of:
(1) Misconduct in the discharge of his duties.
(2) Any disgraceful conduct
(3) Abuse of his powers.
(4) Persistent default in the discharge of his duties, and if
(5) he has become incapable of performing his duties and functions under the Act.
18. In this legal and factual background, it now remains to be seen whether the findings rendered by the District Development Officer, as confirmed by the Additional Development Commissioner, are in accordance with law, or not.
19. The first finding recorded by the District Development Officer in his order dated 02-01-2012, is that the petitioner, on the say of Ashwinbhai Kanjibhai Patel, a member of the Gram Panchayat, got one tractor-load of mud emptied near the Temple in the Village, taking Rs.150/- as labour charges, and then sold the mud to another person in connivance with the member of the Gram Panchayat, for financial gain. In his order dated 09-02-2012, the Additional Development Commissioner, after recording the submissions of the respective parties and reproducing four questions that had been formulated by him while remanding the matter earlier, comes to exactly the same conclusion as the District Development Officer.
20. Normally, the High Court would not be lightly persuaded to enter into the correctness of findings rendered concurrently by two authorities, ostensibly based upon material on record. However, the court is not precluded, under its powers of judicial review, from ensuring that those findings are amply supported by cogent and convincing material, especially in a case where removal of a democratically elected Sarpanch from his office would entail serious civil consequences. Under Article 26 of the Constitution of India, the Court is empowered to examine the matter in order to do complete justice and prevent a miscarriage of justice. The nature of the power of removal under Section 57(1) of the Act and the resultant consequences are such, that it becomes all the more necessary for the Court to ensure that such drastic power is not exercised for minor irregularities in the discharge of duties and functions by a Sarpanch, but for solid and weighty reasons.
21. It may be pertinent, at this stage, to examine certain judicial pronouncements of the Apex Court in this regard.
22. In Tarlochan Dev Sharma v. State of Punjab, (2001)6 SCC 260, the Apex Court, while dealing with the removal of a President of the Council under the Punjab Municipal Act,1911, held as below:
“7. In a democracy governed by rule of law, once elected to an office in a democratic institution, the incumbent is entitled to hold the office for the term for which he has been elected unless his election is set aside by a prescribed procedure known to law. That a returned candidate must hold and enjoy the office and discharge the duties related therewith during the term specified by the relevant enactment is a valuable statutory right not only of the returned candidate but also of the constituency or the electoral college which he represents. Removal from such an office is a serious matter. It curtails the statutory
term of the holder of the office. A stigma is cast on the holder of the office in view of certain allegations having been held proved rendering him unworthy of holding the office which he held ”
(emphasis supplied)
22.1 Further, in paragraph 11 of the reported judgment, the Apex Court has further observed as below:
“11. The expression “abuse of powers” in the context and setting in which it has been used cannot mean use of power which may appear to be simply unreasonable or inappropriate. It implies a willful abuse or an intentional wrong. An honest though erroneous exercise of power or an indecision is not an abuse of power. A decision, action or instruction may be inconvenient or unpalatable to the person affected but it would not be an abuse of power. It must be such an abuse of power which would render a Councilor unworthy of holding the office of President. Inasmuch as an abuse of power would entail adverse civil consequences, the expression has to be narrowly construed. Yet again, the expression employed in Section 22 is “abuse of his powers or habitual failure to perform his duties”. The use of plural - powers, and the setting of the expression in the framing of Section 22 is not without significance. It is suggestive of
legislative intent. The phrase “abuse of powers” must take colour from the next following expression - “or habitual failure to perform duties”. A singular or casual aberration or failure in exercise of power is not enough; a course of conduct or plurality of aberration or failure in exercise of power and that too involving dishonesty of intention is “abuse of powers” within the meaning of Section 22 of the Act. The legislature could not have intended the occupant of an elective office, seated by popular verdict, to be shown exit for a single innocuous action or error of decision.”
(emphasis supplied)
23. More recently, in Sharda Kailash Mittal v. State of M.P., AIR 2010 SC 3450, while dealing with a case of removal of President under the Madhya Pradesh Municipalities Act,1961, under an analogous provision, the Supreme Court has held as below:
“18 For taking action under Section 41-A for removal of President, Vice-President or Chairman of any Committee, power is conferred on the State Government with no provision of any appeal. The action of removal casts a serious stigma on the personal and public life of the concerned office-bearer and may result in his/her disqualification to hold such office for the next term. The exercise of power, therefore, has serious civil consequences on the status of an
office bearer. There are no sufficient guidelines in the provisions of Section 41-A as to the manner in which the power has to be exercised, except that it requires that reasonable opportunity of hearing has to be afforded to the office bearer proceeded against. Keeping in view the nature of the power and the consequences that flows on its exercise it has to be held that such power can be invoked by the State Government only for very strong and weighty reason. Such a power is not to be exercised for minor irregularities in discharge of duties by the holder of the elected post. The provision has to be construed in strict manner because the holder of office occupies it by election and he/she is deprived of the office by an executive order in which the electorate has no chance of participation.
19 In the present case, the actions of the appellant, even if proved, only amount to irregularities, and not grave forms of illegalities, which may allow the State Government to invoke its extreme power under Section 41–A.”
(emphasis supplied)
24. Reference has been made to the above two judgments by the Division Bench in Raysangbhai Ranchhodbhai Thakor v. State of Gujarat (Supra), relied upon by the learned advocate for the petitioner, while allowing the appeal of the Sarpanch.
25. On the other hand, by judgment dated 03-10-2011 rendered in Letters Patent Appeal No.2998 of 2010 in Special Civil Application No.4115 of 2010, relied upon by the learned advocate for respondent No.4, the Division Bench has found the charges serious enough to reject the appeal of the appellant-Sarpanch, therein.
26. In Raysangbhai Ranchhodbhai Thakor v. State of Gujarat (Supra), after examining the provisions of Section 57 of the Act, the Division Bench held as below:
“11. On close reading of the provisions of Section 57, it appears that a mere irregularity or even an illegality in the discharge of duties or causing loss to the Gram Panchayat does not by itself empower the State Government or its delegate to remove a Sarpanch from the elected office. There must be a finding supported by evidence to show that the concerned Sarpanch has been guilty of misconduct in discharge of his duties or of his disgraceful conduct or is incapable of performing his duties under the Act persistently. We take notice of the fact, more particularly considering the nature of the
charges levelled against the appellant that the authorities are equating misconduct or disgraceful conduct or persistent defaults to that with dereliction of duty. There is a vast difference between misconduct in the discharge of duties and dereliction of duty. Again, at the cost of repetition, we say that the charges as levelled against the appellant and said to have been proved are not of such a nature which can be termed as misconduct in the discharge of duties or disgraceful conduct. Apparently, it is not a case of persistent default in the performance of duties.
12. Section 57 does not speak about dereliction of duty. Misconduct is a violation of definite law. Dereliction of duty or carelessness is an abuse of discretion under a definite law. Misconduct is a forbidden act whereas dereliction of duty is forbidden quality of an act and is necessarily indefinite. However, lack of efficiency, failure to attain the highest standard of administrative ability while holding a public post or office like Sarpanch would not
evaluating a developing situation, may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to the negligence would be such as to the repairable or so heavy that the degree of culpability would be very high.”
27. Against this legal background, it would be fruitful to advert to the facts of the present case. It is an admitted position that three tractor-loads of mud were excavated from Gauchar land by one Kanjibhai Hargovanbhai Patel, a member of the Gram Panchayat, from whom an amount of Rs.8640/- was recovered by way of Royalty. The record reveals that one tractor-load of mud was emptied by Kanjibhai Hargovanbhai Patel near the Temple in village Mitha, on the instructions of Ashwinbhai Kanjibhai Patel, for which he took Rs.150/-as labour charges. This is clear from a reading of the statement recorded by Kanjibhai Hargovanbhai Patel at the Santhal Police Station on 02.08.2009, which has been heavily relied upon by respondents Nos.3 and 2, in their impugned orders. The said statement is annexed at running page 57, along with the reply filed by respondent No.3. Kanjibhai has stated that he had emptied only one tractor-load of mud, without authorisation from the Gram Panchayat, but was apprehended when he was transporting the second tractor-load. Kanjibhai has clearly stated that he has taken Rs.150/- as labour charges for one tractor-load of mud. In the impugned orders, the authorities below have rendered findings to the effect that one tractor-load of mud was got emptied by the petitioner on the say of Ashwinbhai Kanjibhai Patel, near the Temple, for which the petitioner took Rs.150/- as labour charges and then sold the mud to unnamed persons, for financial gain. After scrutiny of the material on record, I do not find any document or piece of evidence to support these findings of the authorities. There is no material on record to indicate, even remotely, that the petitioner has taken Rs.150/- as labour charges, or has sold one tractor- load of mud to any person. The statement of Kanjibhai itself makes it clear that Kanjibhai took Rs.150/- as labour charges. In the face of this statement, how respondents Nos.3 and 2 could have arrived at a finding that Rs.150/- was taken by the petitioner, is beyond comprehension, as the said authorities have not based their findings upon any other material on record. To whom the petitioner is supposed to have sold the mud, and for what consideration, is also not mentioned in the impugned orders. Nor is there an iota of evidence on record to indicate this. Bald statements are made in the impugned orders, unsupported by evidence on record. Such findings rendered by respondent No.3 and confirmed by respondent No.2 in a mechanical manner, have resulted in a grave miscarriage of justice.
28. The second finding against the petitioner relates to the statement given by Kanjibhai Hargovanbhai Patel, at the Santhal Police Station, on 02.08.2009. Relying on this statement it is found by the authorities that the petitioner, on the say of Ashwinbhai Kanjibhai Patel, has got emptied one tractor-load of mud near the Temple in the village, and there are reasons to believe that the petitioner has used this mud for purposes other than the good of the village, by conniving with the member of the Gram Panchayat. On the one hand, it is recorded by the authorities in their impugned orders, that the mud was to be used for filling up the ditch that remained constantly water-logged and on the other hand it is stated that the mud was used by the petitioner for other purposes, and for financial gain. These findings are not only contradictory but also appear to be based solely upon presumptions, surmises and conjectures, as there is no material on record to indicate that the mud was sold by the petitioner for financial gain, or was used for any other personal purpose as opposed to the public welfare. Neither has it been mentioned in the said orders to whom the mud was allegedly sold by the petitioner, and for what consideration.
29. The third finding against the petitioner is to the effect that the petitioner, being the first citizen of the village, ought to have taken note of the information supplied by the Talati-cum-Mantri that mud was being excavated from Gauchar land, and should not have encouraged such an act by a member of the Panchayat, but should have taken appropriate action against the said member. It is concluded by the authorities that the petitioner has not behaved in a manner befitting his office and by conniving with the member of the Gram Panchayat who has excavated the mud, is indirectly responsible for this act. This finding, if it can be termed as one, is more in the nature of an expression of opinion by the authorities, in general terms.
30. From the orders of respondents Nos.2 and 3, and the material on record, including the reply filed by the petitioner to the Show Cause Notice, it transpires that the worst case against the petitioner can be said to be that he, through Ashwinbhai Kanjibhai Patel, got one tractor-load of mud emptied by Kanjibhai Hargovanbhai Patel which was excavated from Gauchar land for the purpose of filling up the water-logged ditch in front of the Primary Health Center, in order to prevent unhygienic conditions and ensure that there was no danger to the small children of the village. This was done without permission from the Competent Authority. Kanjibhai Hargovanbhai Patel was instructed to empty three tractor-loads of mud, but actually emptied only one tractor-load. Royalty for excavation of the mud was paid by Kanjibhai Hargovanbhai Patel. It also appears from the record that there may have been unauthorised excavation of mud going on in the area surrounding Mitha Village. The report of the Assistant Geologist refers to the report of the Talati-cum-Mantri in this regard, and names Kanjibhai Hargovanbhai Patel as one of the persons who unauthorisedly excavated mud and from whom royalty was recovered. It also refers to a surprise check being conducted in the entire surrounding area, whereby a total amount of Rs.1,31,880/- was recovered as Royalty from different persons. This has no connection with the findings against the petitioner. It is noteworthy, that neither the statement of Kanjibhai Hargovanbhai Patel dated 02-08-2009 recorded at the Santhal Police Station, nor the report of the Assistant Geologist dated 23-02-2010, annexed as Annexure-B to the affidavit-in-reply filed by respondent No.3, mention the name of the petitioner. Both the documents are relied upon by the authorities below, in their impugned orders.
31. The petitioner has stated in the reply to the Show Cause Notice, that he had given instructions that three tractor-loads of mud be emptied near the temple, for the sole purpose of filling up the water-logged ditch, as he had received several oral complaints and representations in this regard. He had so done to rectify the unhygienic conditions that prevailed and to prevent the village children from falling into the ditch. It is the case of the petitioner that he has acted purely in the interest of the village people and for public good, but was not aware that prior permission from the competent authority had to be taken. Subsequently, the Gram Panchayat appears to have passed a Resolution on 03/6/2011 stating that the petitioner acted for the public good and the Show Cause Notice against him be dropped.
32. The record reveals that the only finding that is supported by evidence against the petitioner is that he did not take prior permission from the Competent Authority before issuing instructions for emptying the mud for filling upon the ditch. In his statement dated 02-8-2009, Kanjibhai does not state that the petitioner instructed him to excavate the mud but only states that Ashwinbhai Kanjibhai Patel asked him to empty three tractor-loads of mud. However, he emptied only one tractor-load and took Rs.150/- as labour charges. As already discussed hereinabove, there is no material on record to support the finding that the petitioner has sold the mud to any person or has derived any financial advantage or gain therefrom.
33. The action of the petitioner can, at best, be stated to be an irregularity in the discharge of his duties, but does not amount to misconduct, within the meaning of Section 57(1) of the Act,as interpreted by the Division Bench in Raysangbhai Ranchhodbhai Thakor
v. State of Gujarat (Supra). The nature of the charge and the findings against the petitioner are such that it does not involve him directly, but only in an indirect manner, as recorded by the authorities below. The charges of financial gain and selling of the mud by the petitioner are not supported by evidence on record. Neither is there material to indicate that the petitioner has indulged in disgraceful conduct or made persistent defaults. The report of the Talati-cum- Mantri dated 06-08-2009 is regarding the unauthorised excavation of soil from Gauchar land by the member of the Gram Panchayat through the petitioner and refers to the present incident. It cannot be read to mean that the petitioner has committed persistent defaults. At the worst, instructing a member of the Gram Panchayat to empty three tractor-loads of mud through Ashwinbhai Kanjibhai Patel, for the purpose of filling up the ditch, without prior authorisation can be termed as a singular aberration but does not amount to an abuse of power. Further, there is no material on record to indicate that the petitioner is incapable of performing his statutory duties and functions. Viewed from all angles, in my considered view, the ingredients of Section 57(1) of the Act are not
attracted in the present case, which is not one that warrants the exercise of the power of removal. The said provision of law encapsulates drastic power to remove a democratically and duly elected Sarpanch from his office. As such, it ought to be read strictly, as removal from office would not only cast a lasting stigma, but would also entail serious civil consequences.
34. As stated by the Supreme Court in Sharda Kailash Mittal v. State of M.P. (Supra), the power of removal can be invoked only for strong and weighty reasons. Further, as held by the Supreme Court in Tarlochan Dev Sharma v. State of Punjab (Supra), a single or casual aberration or failure in exercise of power or error of decision is not enough for removal, but a course of conduct or plurality of aberration or failure in exercise of power involving dishonesty of intention is sufficient for removal. In the present case, the record does not reveal that there is a course of conduct with plurality of aberrations or dishonest intentions by the petitioner.
35. The decision in the case of Jitendrasinh Shivsinh Vansiya v. State of Gujarat (Supra) cited by the learned advocate for respondent No.4, will not be applicable to the facts of the present case. In that case the nine charges, out of which eight stood proved, were much more serious and pertained to financial irregularities. In the case in hand, there is no material in support of the findings regarding financial gain. The single charge against the petitioner cannot, therefore, said to be fully proved.
36. As a consequence of the factual and legal aspects of the case discussed hereinabove, I am of the considered view that the case of the petitioner does not fall within the ambit and scope of Section 57 of the Gujarat Panchayats Act. The order of respondent No.3, as confirmed by the order of respondent No.2, cannot stand the scrutiny of law as they are legally unsustainable and are not supported by material on record. The impugned orders appear to be based upon presumptions and surmises, by misreading the material on record. The present is a fit case where the interference of this Court,in exercise of its extraordinary jurisdiction under Article 226 of the Constitution, is warranted.
37. Accordingly, the petition is allowed. The impugned orders dated 02-01-2012 and 09-02-2012 passed by the District Development Officer and Additional Development Commissioner, respectively, are hereby quashed and set aside. The petitioner is directed to be reinstated as Sarpanch of Mitha Gram Panchayat, forthwith.
38. Rule is made absolute. Parties shall bear their own costs.
(Smt.Abhilasha Kumari,J) arg