AJIT JAYANTIBHAI PATEL Vs. ARVINDBHAI DEVJIBHAI ROHIT

JUDGEMENT

(1.) With the consent of learned advocates for the parties matter is finally heard today.

(2.) The short fs of the case appear to that the complaint was filed against the respondent No.1 for offence under Prevention of Corruption Act and on the basis of the same, ACB, Baroda had investigated the matter. It appears that as such the respondent No.1 was holding the post of Sarpanch at the Gram Panchayat. The DDO in exercise of powers under section 59(1) of the Gujarat Panchayats Act(hereinafter referred to as "the Act") suspended the respondent No.1 from the post of Sarpanch. The said order dated 23.1.2004 is produced by the learned counsel appearing for the respondent No.1. It appears that the respondent No.1 carried the matter before the Addl.Devp.Commissioner and the Addl.Devp.Commissioner found that the decisions of this court in the case of Naranbhai Veljibhai Chaudhary vs R.S.Vaghela and others reported in 1997 GLR 599 and in the case of BiKhhumiya Sarfumiya Malek vs Dist.Devp.Officer, Mehsana reported in 1999(3) GLR 2693 are not considered and he further found that the opportunity of hearing has not been given to the respondent No.1 and it was observed by the Devp.Commissioner that had the opportunity of hearing given proper facts and circumstances could have been examined and for the purpose of giving opportunity of hearing he also has referred to the Govt Circular dated 5.6.96 instructing to give opportunity of hearing before exercising power under section 59 of the Act. The petitioner who is an ex-Sarpanch of the village Pathiyapura has approached this court by preferring the present petition challenging the order passed by the Devp.Commissioner.

(3.) Upon hearing the learned counsel appearing for the parties it appears that there is no dispute on the point that the opportunity of hearing was not given by the DDO before the order under section 59 is passed. Even the perusal of the order, dated 23.1.2004 under section 59 of the Act passed by the DDO shows that it has not referred to any show cause notice or opportunity of hearing. Mr.Mehta, learned counsel appearing for the respondent No.1 relied upon the decision of this court (Coram: M.R.Shah,J) dated 21.7.04 in SCA No.5602/04 in case of Dalsingji Godarbhai Chaqudhary vs DDO for supporting his contention that the opportunity of hearing was required to be given by the DDO before exercising power and he submitted that therefore the Devp.Commissioner has rightly passed the order setting aside the order of the DDO. The perusal of the said decision, dated 21.7.04 in case of Dalsingji Chaudhary (supra) shows that at para 6 it has been observed as under: