(Per : HONOURABLE THE CHIEF JUSTICE MR. K.S.RADHAKRISHNAN) Heard learned counsels for the parties.
Special Civil Application was preferred by the petitioner-appellant herein seeking a writ of certiorari to quash and set aside the order dated 06.02.2009 passed by the second respondent confirming the order dated 11.08.2008 passed by the third respondent of removal of the petitioner from the post of Sarpanch of Palana Gram Panchayat. Reason for removal of the Sarpanch is that auction was held for rights of two ponds for Rs.42,000/-but the Sarpanch could not recover the balance amount from the highest bidders and thereby caused financial loss to the Gram Panchayat. Stand of the Sarpanch is that bonafide he held auction for rights of ponds and one forth amount of the bid i.e. Rs.500/- and Rs.1500/- were recovered forthwith. Due to the default of two bidders who participated in bid auction, allegation in the complaint against the petitioner-Sarpanch was that he could not recover the balance amount from the highest bidders. Stand of the Sarpanch is that he had filed criminal complaint against the bidders and notices were also issued to them for making the balance amount good due to the Gram Panchayat. Noticing that there was dereliction of duty on the part of the Sarpanch, action was taken against by the District Development Officer against petitioner-Sarpanch removing him from the post of Sarpanch. Aggrieved by the said order, petitioner preferred an appeal before the Additional Development Commissioner. Additional Development Commissioner also confirmed the order of the District Development Officer. Learned Single Judge has also not found any infirmity in the orders passed by the Additional Development Commissioner as well as District Development Officer.
When the matter came up before us for hearing, we directed the learned Counsel appearing for the District Development Officer to ascertain as to whether after removal of appellant-petitioner from the post of Sarpanch, any further action has been taken by the Gram Panchayat for recovery of the balance amount from the persons who stood highest in the bid for public auction. We are informed that no action has been taken either by the office bearer in charge of the Gram Panchayat. Therefore, again, there appears to be inaction for recovery of the balance amount from the defaulter bidders. Further, on facts, there is nothing to show any unlawful gain to the appellant-petitioner in the said transaction. Further, we are also informed that the Sarpanch is not financially benefitted in any manner, nor there is any complaint of financial irregularity and illegality committed by the Sarpanch.
That being the fact situation, we are view that the order passed by the District Development Officer in exercise of power under Section 57(1) of the Gujarat Panchayats Act, removing the appellant-petitioner from the post of Sarpanch is too harsh. Further, we are informed that for the previous 15 years of the appellant-petitioner discharging duties as Member / Sarpanch of the Panchayat, no illegality or irregularity is alleged to have been committed by him.
Under the circumstances, we are inclined to set aside the order passed by the District Development Officer, as confirmed by the Additional Development Commissioner and direct the respondents to restore the appellant-petitioner back to his post of Sarpanch and also direct him to take further actions for recovery of financial loss, if any, against the persons who participated in the auction and defaulted later.
Consequently, the order of the learned Single Judge is set aside.
With above observations and direction, the Letters Patent Appeal as well as Civil Application stand allowed to above extent.
(K.S. RADHAKRISHNAN, C.J.) (AKIL KURESHI, J.) kailash Top