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Judgment
Mauna M. Bhatt, J
Rule returnable forthwith. Learned Assistant Government Pleader Mr.Aakash Gupta waives service of Rule on behalf of respondent Nos.1 and 2 and learned advocate Mr.Radhesh Vyas waives service of Rule on behalf of respondent No.3.
This petition is filed challenging an order dated 29.11.2024 passed by respondent No.2 – Additional Development Commissioner in exercise of his powers conferred under section 57(3) of Gujarat Panchayats Act, 1993 (“the Act” for short), whereby the order passed by respondent No.3 under section 57(1) of Gujarat Panchayat Act, removing the petitioner from the post of Sarpanch of Dhokadava Gram Panchayat has been confirmed.
Facts in brief, as referred in the petition, are as under:
The petitioner herein was elected as a Sarpanch of Dhokadava Gram Panchayat, and had assumed charge on the said post on 17.01.2022. It is case of the petitioner that Taluka Development Officer, Gir-Gadhada made a report to respondent No.3 for alleged irregularities by the petitioner and accordingly, show cause notice dated 07.06.2024 under Section 57(1) of the Act was served to the petitioner. It was alleged in the show cause notice that why the petitioner should not be removed from the post for being guilty of misconduct in discharge of her duty. Pursuant to the show cause notice, the petitioner herein appeared before respondent No.3 and also filed her reply along with necessary documents. It is case of the petitioner that the said documents were available to the petitioner pursuant to her RTI application. Accordingly, the hearing was concluded on 03.09.2024. After having concluded the hearing, a report/opinion was called from respondent No.3- Taluka Development Officer, Gir-Gadhada and the said report was submitted to respondent No.2 on 05.09.2024. Based on the report dated 05.09.2024, an order dated 21.09.2024 was passed removing the petitioner from the post of Sarpanch. Since the appeal is provided against the order passed under section 57(1) of the Gujarat Panchayat Act, the petitioner preferred an appeal under section 57(3) of the Gram Panchayat Act. Respondent No.2 herein rejected the appeal of the petitioner vide order dated 29.11.2024 confirming the order of respondent No.3 dated 21.09.2024. Aggrieved by which, the present petition is filed.
Heard learned advocate Mr. K.P.Champaneri for the petitioner, learned Assistant Government Pleader Mr.Aakash Gupta for respondent Nos.1 & 2 and learned advocate Mr.Radhesh Vyas for respondent No.3.
Learned advocate Mr.K.P.Champaneri for the petitioner submitted that appeal order dated 29.11.2024 passed under section 57(3) of the Act is erroneous since the authority has erred in not appreciating that the petitioner was not provided with the report of Taluka Development Officer- Gir Gadhada, basis which, the order dated 21.09.2024 under section 57(1) of the Act removing the petitioner from the post of Sarpanch was passed by respondent No.3. Further, as can be seen from the order dated 21.09.2024 opportunity of hearing was given to the petitioner on 23.08.2024, as also on 03.09.2024 whereas report of Taluka Development Officer, Gir-Gadhada was made available to respondent No.3 on 05.09.2024. Thus, since the hearing was concluded on 03.09.2024, admittedly the petitioner was not provided with the report dated 05.09.2024, this being contrary to the principles of natural justice, the order dated 21.09.2024 deserves to be quashed and set aside and consequential order dated 29.11.2024 also deserves to be quashed and set aside.
Learned advocate further submitted that an order dated 29.11.2024 under which the petitioner has been removed from the post of Sarpanch of Dhokadava Gram Panchayat, is non-reasoned order because it does not deal with the contentions raised by the petitioner in her reply. Detailed explanation was given by the petitioner. The explanation provided in relation to the allegation of work order given to Shri Maruti Stones was not considered. Moreover, the decision to give work order to Maruti Stones was taken by passing resolution in the meeting of Gram Panchayat and the consent of all members of the Dhokadava Gram Panchayat was accorded. Therefore, it was not sole decision of the Sarpanch and therefore, the allegation made against the petitioner is without any basis. Therefore, the order dated 21.09.2024 and consequential order dated 29.11.2024 also deserve to be quashed and set aside. More particularly this aspect has been brought to the notice of respondent No.2 – Additional Development Commissioner, who fails to appreciate the same and therefore, the appellate authority may be directed to reconsider this aspect.
Learned advocate further submitted that the grievance of not providing the report dated 05.09.2024, basis which, the order dated 21.09.2024 was passed, brought to the notice of the appellate authority, who fails to consider the same and it was recorded that there is no application filed for providing the report dated 05.09.2024. Since the appellate authority has factually erred in not appreciating that the petitioner has specifically called for report dated 05.09.2024, the appeal order dated 29.11.2024 deserves to be quashed and set aside.
Further, allegation levelled in the show cause notice and considered in the order dated 29.11.2024 is in relation to accounting irregularities and for that, the petitioner may not be held responsible. No allegations were made against the petitioner of taking advantage of the said money or loss caused to the Gram Panchayat and therefore, the allegations were also misconceived. No allegations were made for misconduct on part of Sarpanch in discharge of duties or any disgraceful conduct or abuse of power or making persistent default in performance of duties, etc. Therefore, an order dated 21.09.2024 is beyond the scope of the authority.
Further, entire action taken against the petitioner is at the behest of the complaint filed by some political party. In a democratic government, once person is 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 the election is set aside. Therefore, the orders dated 21.09.2024 and 29.11.2024 deserve to be quashed and set aside. Learned advocate for the petitioner therefore submitted that the appeal order dated 29.11.2024 may be quashed and set aside and the appellate authority may be directed to reconsider the order dated 21.09.2024 on merits.
Learned advocate for the petitioner relied upon the decision rendered by this Court in the case of Bichchhubhai Bhabhlubhai Khuman V/s. State of Gujarat reported in 2015 JX (Guj) 1199. He also relied upon decision of Hon’ble Supreme Court in the case of Ravi Yashwant Bhoir V/s. District Collector, Raigad and others reported in (2012)4 SCC 407.
On the other hand, learned Assistant Government Pleader Mr.Aakash Gupta for the respondent submitted that the order dated 21.09.2024 was passed after providing an opportunity of hearing to the petitioner. Written submissions filed on behalf of the petitioner were also considered. Additionally, a report was called for from the Taluka Development Officer, which contains summary of explanation of petitioner in relation to allegations and outcome of hearings in the matter. The report dated 05.09.2024 is after consideration of the submissions made by the petitioner on earlier occasions and her response in the written submissions. Therefore, contention that an order dated 21.09.2024 was passed on basis of report dated 05.09.2024 is misconceived and contrary to the facts on record. Further, payment made to the related party is not in dispute. Further, it is on record that contract was awarded to Shri Maruti Stones wherein petitioner’s husband is one of the partners and therefore, there is a breach of section 13(1)(g) of the Act.
Further, as per settled legal preposition, this Court in the petition under Article 226 of the Constitution of India, is required to ascertain whether the procedure prior to passing of an order has been followed or not. In this case, the petitioner was provided adequate opportunities of hearing and thereafter, an order dated 21.09.2024 was passed. The said order has been confirmed by the appellate authority as there was no contrary document available on record. In support of his submissions, learned Assistant Government Pleader relied upon decision of the Hon’ble Supreme Court in the case of Hari Prakash Shukla and others V/s. The State of Uttar Pradesh and another rendered in Civil Appeal Nos.9697-9698 of 2014.
Reliance has also been placed in one more decision rendered by Hon’ble Supreme Court in the case of Sanjay Kumar Jha V/s. Prakash Chandra Chaudhary and others reported in MANU/SC/1419/2018 to submit that judicial review in the administrative matter is permissible only if the decision is violative of fundamental rights or basic principles of justice and fair play or suffers from any patent or flagrant error. In this case, the same has not been breached and therefore, no interference is called for.
Learned Assistant Government Pleader also relied upon decision of co-ordinate bench of this Court in the case of Vikramsinh Samatsinh Chauhan V/s. State of Gujarat reported in 2020(0) AIJEL-HC 244933 to submit that when the allegations were that the petitioner had not done her duties according to procedure/ rules or the petitioner did not follow accounting procedure before making expenditure, the order of removing her from the post of Sarpanch is justified and this Court is not required to exercise extraordinary jurisdiction under Article 226 of the Constitution of India. Hence, the orders being appropriate, no interference is called for.
Learned advocate Mr.Radhesh Vyas upon placing reliance on the affidavit filed, submitted that the order dated 21.09.2024 and order dated 29.11.2024 of respondent Nos.3 and 2 respectively is based on evidence on record. Further, there was no denial to the fact that the work order was allotted to her husband, who is one of the partner in Shri Maruti Stones and thus there is a breach of section 13(1)(g) of the Act. Thus, it is clear case that the petitioner had exercised her position for personal benefit by violating Rules and accounting procedure. Action of the petitioner had led to create unauthorised financial liabilities on Panchayat. Accordingly, an order was passed by the authority. The aspect that decision was taken by resolution would not absolve the petitioner from her responsibilities.
Moreover, it can be seen from the orders dated 21.09.2024 and 29.11.2024 that the petitioner was given show cause notice on 07.06.2024. Thereafter, hearing was provided and all four hearings were attended by participation of petitioner by herself or through advocate. Earlier two reports of Taluka Development Officer dated 16.02.2024 and 27.05.2024 were given to the petitioner in person as well as by post. Report dated 05.09.2024 is nothing but summary of earlier two reports dated 16.02.2024 and 27.05.2024 and therefore the contention that report dated 05.09.2024 is not provided is misconceived. The petitioner was supplied with earlier two reports dated 16.02.2024 and 27.05.2024 based on which, the decision was taken. He thus submitted that the petition being devoid of merits, deserves to be rejected.
Considered the submissions. From revisitation of facts, it is noticed that the petitioner herein was removed from the post of Sarpanch by an order dated 21.09.2024. From the order dated 21.09.2024, it is evident that earlier two reports dated 16.02.2024 and 27.05.2024 were provided to the petitioner and the petitioner was also given an opportunity of hearing on 18.06.2024, 20.07.2024 and 23.08.2024. Moreover, written submissions were also submitted by the petitioner on 03.09.2024. Further, from the order dated 21.09.2024, it is seen that the report was called for from the Taluka Development Officer and the same was given on 05.09.2024. Therefore, contention of respondents that report dated 05.09.2024 is summary of earlier two reports dated 16.02.2024 and 27.05.2024, merit acceptance. From summary of report also, it is evident that it relates to earlier two reports, and written submissions on behalf of the petitioner. Further, as recorded in the impugned orders, before respondent No.3 as well as before respondent No.2, no contrary documents were produced by the petitioner. The ground raised in the petition that the appeal order recorded incorrect facts that report dated 05.09.2024 was not called for, in the opinion of this Court would not cause any prejudice since the earlier reports were provided to the petitioner. Moreover, the scope of judicial review in relation to the orders passed under section 57(1) read with 57(3) of the Act is minimal. Further, as noticed from the order dated 21.09.2024 that the petitioner failed to discharge her duties as Sarpanch. Irregularities/ discrepancy committed by her could not be other wise justified by her. Prior to passing of the order, due opportunities of hearing were provided to the petitioner to defend her case. The petitioner has failed to produce any contrary evidence.
In the case of Sanjay Kumar Jha (supra), the Hon’ble Supreme Court as held as under:
“19. In exercise of discretionary power of judicial review Under Article 226 of the Constitution, the High Court might interfere with administrative matters only if the decision is violative of fundamental or basic principles of justice and fair play or suffers from any patent or flagrant error. It is true that the High Court might rectify, in exercise of its power of judicial review, an error of law or even an error of fact, for sufficient reasons, if the error breaches fundamental or basic principles of justice or fair play or if the error is patent and/or flagrant, but not otherwise. However, even in cases where the High Court finds an apparent factual error which goes to the root of the decision, the appropriate course of action would be to give the opportunity to the authority concerned to rectify the error. It is only in the rarest of cases, where the factual error is so obvious that it is rectifiable by the Court itself, that the Court might, to prevent delay and consequential denial and/or miscarriage of justice, rectify the error.”
Further in the case of Hari Prakash Shukla and others (supra), the Hon’ble Supreme Court as held as under:
“26. This Court, in a catena of judgments has held that the High Court, while exercising its inherent powers under 226 of the Constitution of India, cannot re-appreciate evidence and arrival of finding of facts, unless the authority which passed the original order did so in excess of its jurisdiction, or if the findings were patently perverse.
In the case of BK Muniraju Vs. State Of Karnataka, this Court, while expounding on the powers of the High Court under Article 226 of the Constitution of India, held that the same cannot be used to re-appreciate evidence unless an error of fact appraised by the lower court is manifest and such an error has caused grave injustice.
Further, in the case of “Krishnanand Vs. Director of Consolidation”, this Court, in a similar fact circumstance wherein concurrent findings of the lower courts were dismissed by the High Court while exercising its writ jurisdiction, held that re-appreciation of evidence under Article 226 can only be done in cases where the original order by the lower court was passed in excess of its jurisdiction or if the findings of the lower courts were patently perverse.”
In view of the above, the order of removal of the petitioner cannot be said to be in breach of provisions of Section 57 of the Gujarat panchayat act or it is violative of principles of natural justice or fair play. On the facts of the case as also on the basis of settled principles of law, the petition fails and the same is dismissed.
In view of dismissal of the main petition, civil application seeking to join the applicant as party respondent would not survive and the same is disposed of accordingly. Rule is discharged.