KODARBHAI BECHARBHAI PATEL Vs. MOHANBHAI MOTIBHAI PATEL

JUDGEMENT

(1.) The petitioner herein was a Sarpanch who was elected to that post in Dungarwada village Panchayat. Dungarwada is situated in Modasa Taluka of Sabarkantha District. He was elected as Sarpanch in 1966. The petitioner was also elected as the Sarpanch in 1962 and had acted in that capacity from 1962 to 1966. From 1966 onwards, the petitioner has been acting as a Sarpanch after being elected to the said post as per the provisions of the Gujarat Panchayats Act, (hereinafter referred to as the Act) and the Rules made thereunder. Originally the period of the tenure of the Sarpanch was four years but by a subsequent amendment of the Act, the period has been extended to rive years. Respondent No.1 is a resident of Dungerwara village and respondent No.2 is the Development Commissioner, Gujarat State, functioning under the provisions of the Act. Dhudabhai Narsinhbhai and Hirabhai joitabhai, both residing at Dungerwada, had filed an application against the petitioner complaining of certain irregularities alleged to have been committed by the petitioner as far back as 1963. This application was made sometime in 1966. The allegation in the application was that a petromax lamp, which ws previously purchased for Rs.120/-, was sold by the petitioner to a relation of his for a paltry sum of Rs.32/-. According to the petitioner at the time when the auction sale took place not one but three petromax lamps was sold and each lamp was sold for Rs.32/-. Because of this allegation made in the application against the petitioner, the competent authority functioning under the Act, namely, the District Development Officer, issued a notice under Section 49(1) of the Act to the petitioner on April 19, 1966 calling upon the petitioner to show cause why he should not be removed from his office as a Sarpanch for the misconduct alleged against him regarding the sale of the Petromax lamp. At the end of the inquiry, the District Development Officer discharged that notice by his order, dated September 29, 1966. Thereafter respondent No.1 preferred a Revision application to the Development Commissioner under Section 305 of the Act. By his Order, dated March 22, 1968, the Development Commissioner set aside the order passed by the District Development Officer and remanded the matter for reconsideration by the District Development Officer and he directed that opportunities of leading oral and documentary evidence should be given to the parties to the inquiry for establishing the charges against the petitioner or for establishing the correct fact. After the remand by his Order, dated May 22, 1968, the district Development Officer again discharged the notice and held that the Order under Section 49 of removal of the petitioner from office could not be taken so far as the post of Sarpanch was concerned. The District Development Officer observed in his decision that a separate proceeding may be taken under the provisions of Section 317 of the Act for recovering the amount for which the petromax lamp could have been sold after giving credit to the petitioner for the amount actually realised. Against this decision of the District Development Officer after remand the first respondent preferred a revision application to the Development Commissioner and by his Order, dated September 2, 1971, the Development Commissioner held that the petitioner had misconducted himself and the ordered that the petitioner be removed from the post of Sarpanch of Dungerwada village. Being aggrieved by this order of the Development Commissioner, the petitioner has filed this application under Articles 226 and 227 of the Constitution challenging the order of the Development Commissioner.

(2.) In order to appreciate the rival contentions, it is necessary to refer to some of the provisions of the Act. Under Section 49 (1) of the Act, the competent authority may remove from office any member of a panchayat or the Sarpanch, the Upasarpanch, the Chairman or as the case may be, the Vice-Chairman, 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, Upa-Sarpanch, Chairman or Vice-Chairman, as the case may be, has been guilty of misconduct in the discharge of his duties or of any disgraceful conduct of abuses his powers or makes persistent default in the performance of his duties and functions under the Act or has become incapable of performing his duties under the Act. The Sarpanch, Upa-Sarpanch, Chairman or as the case may be, Vice-Chairman so removed may at the discretion of the competent authority also be removed from the membership of the panchayat. It is, therefore, clear that the order for removal from office under Section 49 (1) can be passed by the competent authority on one of the following grounds:-

(3.) Mr. Vakharia for the petitioner has contended that an order under Section 49 (1) of the Act contemplates removal from office and if for any reason the person concerned has ceased to occupy that post, then there is no office from which he can be removed and if such a contingency arises, the competent authority, in the first instance, or the revisional authority viz., the Development Commissioner in revision, cannot pass any order or removal from service because the office from which the person concerned is sought to be removed no longer exists. Such cessation of office may be by resignation, as contemplated by Section 46 of the Act, or it may be by reason of the fact that the tenure of office has come to an end by efflux of time. He contends that reading the provisions of Section 49, viz., subsection (2), in contrast with sub-section (1) and the consequences which flow from Section 23 (1) (d), it must be held that once the person concerned ceases to hold the office from which he is sought to be removed, such cessation being due to any cause, the only way open to the competent authority or the authorities concerned is to proceed to disqualify the person concerned under Section 49 (2) provided the action has been taken within six months from the date on which the person resigns or ceases to hold such office. Under Section 23 (1) (d) on the other hand, a disqualification starts from the date on which the order of removal inter alia contemplated by Section 49 (1) is passed; and unless the State Government relieves the person from the disqualification by a notification in the official gazette the disqualification is to continue for a period of four years from the date of the order.