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Judgment
A.Y. Kogje, J
This petition under Article 226 of the Constitution of India is filed with prayers as under:-
“(A) That the Hon’ble Court be pleased to admit and allow this petition.
(B) That the Hon’ble Court be pleased to issue a writ of Mandamus or a writ of Certiorari or any other appropriate writ or order holding that - the
impugned order Annexure-A dated 25-7-2019 passed by Respondent No.2 and the impugned order Annexure-B dated 9-1-2020 passed by
Respondent No.1 are absolutely illegal, arbitrary and passed in clear violation of section 57 of the Gujarat Panchayats Act and consequently, the
Hon’ble Court be pleased to quash and set aside the same and direct the authorities to permit the petitioner to resume his duty as Sarpanch of the
Bhagal (J) Gram Panchayat.
(C) Pending admission and final disposal of the petition, the Hon’ble Court be pleased to stay the implementation of impugned orders Annexure-A
and Annexure-B.
The issue pertains to removal of the petitioner as a Sarpanch in exercise of powers under Section 57 of the Gujarat Panchayats Act, 1993, where
the petitioner has been alleged to have indulged in misconduct while while carrying out certain development work. The issue being that for the purpose
of development work, though technical sanction was received, there was no administrative sanction from the Taluka Development Officer before
carrying out the work and making payment for such development work.
Learned Advocate for the petitioner, relying upon certain judgments of this Court, would submit that the allegations against the petitioner would not
constitute misconduct, more particularly when there is no allegation of siphoning of money and that the authorities were well aware of the execution of
development work. It is also submitted that the resolution to carry out development work was passed and the agreement when Panchayat was
executed in favour of the contractor.
3.1 It is also submitted that the entire proceeding against the petitioner for removing him as Sarpanch was initiated at the behest of third party,
respondent No.3 herein, who had no stake and had no locus to initiate any proceeding against the petitioner.
3.2 It is lastly submitted that term of the petitioner as a Sarpanch has already expired and that there is no disqualification incurred by the impugned
order. However, as the petitioner is to carry stigma, the petitioner is prosecuting the present petition.
Learned AGP submitted that the impugned orders do not indicate anything with regard to agreement between the Panchayat and the contractor nor
does record indicate that there was existence of any MB Book or record of completion certificate so as to justify payment made by the Panchayat by
way of cheque to the contractor under the signature of the petitioner and Talati-cum-Mantri. What has been recorded in the impugned order would
indicate that there is no record with regard to agreement between the Panchayat, MB Book indicating about progress in work and the completion
certificate on the basis of which payment would have to be made to the contractor.
Learned Advocate Mr.Saiyed appearing for respondent No.3 submitted that it cannot be said that respondent No.3 is a third party who had no locus
as he is also an elected member and has been supported by 8 other members of the Panchayat who have unanimously stated there there was no
proceeding in Panchayat with regard to grant of development work to the contractor and there is nothing on record to indicate that there was any
agreement between the Panchayat and the contractor. In fact, there was no tender issued by which the contractor was selected for carrying out the
development work.
5.1 It is also submitted that the authorities, while considering the case of the petitioner, have given a categoric finding that no record is produced with
the authorities which the petitioner is now seeking to rely upon before this Court.
At this stage, learned Advocate for the petitioner, while addressing the Court through video conferencing, makes a statement that there exists an
agreement between the Panchayat the the contractor; there also exists record of MB Book to indicate progress in the work and also a completion
certificate issued to justify the payment.
All these documents, in the opinion of the Court, are relevant documents which ought to have been placed before the authorities. The authorities,
not equipped with such documents, would not come to conclusion as to whether misconduct has taken place. If say of the petitioner is to be believed
that the documents were indeed placed on record then also, not referring to such documents while passing the order, will also have its own
consequences.
Considering the stage at which now the petition lies, i.e. to say that term of the petitioner as a Sarpanch is now over by efflux of time, therefore
accepting say of the respondents that the petition may be rendered academic, the Court is not inclined to further probe into the matter. However,
considering the submission of learned Advocate for the petitioner that the petitioner may not have to carry on with the stigma, relegates matter back to
respondent No.2 â€" District Development Officer, Banaskantha for a fresh look into the matter by considering the documents in the form of
agreement between the Panchayat and the contractor, MB Book and the completion certificate. If such documents are not on record, it will be open
for the petitioner to place the same. It will also be open for the respondents to contest existence of such documents. While giving a fresh look to the
matter, respondent No.2-District Development Officer is directed to give opportunity of hearing to the petitioner as well respondent, including private
respondent NO.3.
The petition stands disposed of.