ASHOKBHAI KANUBHAI MANGROLIYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By way of this petition under Articles 226 and 227 of the Constitution of India, the petitioner has challenged the legality and validity of the order dtd. 19/4/2021 passed by the Development Commissioner in Appeal No. 31 of 2020 as well as the order dtd. 21/5/2020 passed by respondent no. 2 - District Development Officer, disqualifying the petitioner from the post of the Sarpanch.

(2.) The facts which have given rise to the present petition are that the petitioner was holding the post of Sarpanch of Timba Jaswantgadh Gram Panchayat, who in clear violation of the principle was removed from the post in exercise of power under Sec. 57(1) of the Gujarat Panchayats Act. Originally, respondent no. 2 - District Development Officer passed an order on 21/5/2020 which came to be challenged by the petitioner before the Additional Development Commissioner and the Additional Development Commissioner was pleased to dismiss the appeal vide order dtd. 19/4/2021. The case of the petitioner further is that one application came to be filed on 12/6/2018 by one Babubhai Dadubhai Mangroliya, resident of Jaswantgadh (Timba) alleging that the petitioner being Sarpanch along with other member - Lakhmanbhai Bhadabhai Sorathiya has misappropriated funds in respect of installation of Mobile Tower (Tax amount) of Voda Phone Company to the sum of Rs.4,95,000.00 by opening dummy account on 4/3/2018 in HDFC Bank, Amreli and thereby has committed a serious act in discharging of his functions as a Sarpanch. After the report which has been prepared by the Taluka Development Officer and after granting opportunity, vide show cause notice dtd. 24/9/2018, the authorities proceeded against the petitioner. The petitioner also filed reply to the said show notice and after considering the relevant material, the District Development Officer, found that the petitioner has committed misconduct, has abuse powers of post, which he was holding as a Sarpanch of Gram Panchayat. As a result of this, in exercise of powers under Sec. 57(1) of the Gujarat Panchayats Act, the order is passed to remove the petitioner from the post of Sarpanch as well as member of the Panchayat.

(3.) Mr. B.B. Naik, learned Senior Advocate assisted by Mr. Ekant Ahuja, learned advocate appearing for the petitioner has vehemently contended that the order passed by the appellate authority, namely the Additional Development Commissioner has neither applied its mind to various contentions which have been raised nor has examined the contentions of the petitioner and so much so, that though decisions were pressed into service, the same have not been dealt with at all. As a result of this, the order suffers from vice of non application of mind. Learned Senior Advocate Mr. Naik has submitted that this non dealing of the contention itself is sufficient enough to set aside the impugned order for reconsidering and to pass a fresh order. By way of additional affidavit, learned Senior Advocate Mr. Naik has tried to raise certain averments which ought to have been examined and according to Mr. Naik, on instructions, the authority concerned has not applied its mind. According to learned Senior Advocate Mr. Naik, what has been alleged against the petitioner is not the subject matter which may attract Sec. 57(1) of the Gujarat Panchayats Act, and the elected representative cannot be removed in the manner in which he has been dealt with. By referring to page 96, the petitioner has raised a detailed objections and explained the allegations which are levelled, which representation/objection, is forming part of the order. In addition to it, learned Senior Advocate Mr. Naik has further drawn attention to the appeal memo which has been submitted, and has detailed out certain contentions, but according to Mr. Naik, when question of removal is a serious act the same is to be examined by the authority in detail, and it is also incumbent upon the authority to closely peruse the relevant record which is very much available before it. In addition to the detailed objections, even the relevant documentary material in the form of bank statements, in the form of Resolutions, in the form of relevant certificates, were shown to the authority, but the authority in an ipse dixit manner, has in routine manner, appears to have exercised the powers, which has led the petitioner to approach this Court. In substance, learned Senior Advocate Mr. Naik, has submitted that while exercising the discretion, the contentions which have been raised ought to have been dealt with including the decisions which have been relied upon before the authority and has ultimately requested the Court that if the Court is inclined not to enter into such details, then it is expected that the authorities may reconsider in light of the settled principle of law laid down by the Apex Court.