AHIR NARANBHAI DEVABHAI Vs. DISTRICT DEVELOPMENT OFFICER

JUDGEMENT

(1.) The petitioner who is a Sarpanch of Group Gram Panchayat, Kantava has filed this petition challenging the order of the District Development Officer dated 18.9.1995 made under Sec. 51(8) of the Gujarat Panchayats Act and the consequential notice dated 21.9.1995 issued by the Taluka Development Officer convening the meeting of the Gram Panchayat on 28.9.95 at 1.00 P.M. for the purpose of electing Upa-Sarpanch. The petitioner has also challenged the order of the Taluka Development Officer which was earlier passed on 5.8.1995 by which he had suspended the proceedings of the Panchayat dated 25.7.1995 purporting to exercise powers under Sec. 249(1) of the said Act. On 25th July, 1995, the Upa-Sarpanch was elected by the Panchayat in its first meeting as per the provisions of Sec. 51(6) -of the said Act. The petitioner further challenges the notice at Annexure "I" dated 5.8.1995 which was issued by the Taluka Development Officer fixing 11.8.1995 as the date for holding election of Upa-Sarpanch.

(2.) It was vehemently submitted on behalf of the petitioner that the competent authority has arbitrarily exercised his discretion in setting aside the election of the Upa-Sarpanch who was elected on 25.7.1995 in the first meeting of the Panchayat. It was submitted that as per the notice which was issued under Rule 3 of the Election Rules, the nominations were required to be put in by 12.00 noon on 25.7.1995. Thereafter, between 12.00 noon and 1.00 P.M. nominations were to be scrutinised and election was to be held at 3.00 P.M. as stated in the notice. It was submitted that as per the minutes of the proceedings of the said meeting, the nominations of two persons were received after 12.00 noon and therefore, both the nominations were rejected and one Ashwinbhai Madhubhai, who is not a party to this petition, was declared to be elected as Upa-Sarpanch. It was also submitted that the order of the Taluka Development Officer which was passed on 5.8.1995 was challenged by the petitioner before the DDO and that order was stayed. However, before taking any decision under Sec. 249(3) in respect of the order which was made by the TDO under Sec. 249(1), the competent authority set aside the election of the Upa-Sarpanch who was elected on 25.7.1995 by the impugned order dated 18.9.95 at Annexure "B" to the petition on the basis of the dispute which was referred to him under Sec. 51(8) on 21st August, 1995. It was submitted that the proceedings against the order of the Taluka Development Officer under Sec. 249(3) were scheduled to be heard on 22nd August, 1995, but on that day they were adjourned and instead of deciding those proceedings, the District Development Officer arbitrarily and illegally decided the proceedings under Sec. 51(8) of the said Act.

(3.) Sec. 51 of the said Act provides for the first meeting of the Panchayat and election of Upa-Sarpanch. Under Sub-sec. (6) it is provided that at the first meeting of the Village Panchayat, no business other than the election of the Upa-Sarpanch shall be transacted. Accordingly, the first meeting of this Panchayat was convened on 25.7.1995 as per the notice issued under Rule 3 of the Gujarat Gram Panchayat (Upa-Sarpanch) Election Rules, 1994. By that notice the election of the Upa Sarpanch was scheduled to be held on 3.00 P.M. on 25.7.1995 and it was intimated that the nominations should be filed before 12.00 noon. In this context the provisions of Rule 5(1) of the said Election Rules would be material. Under that Rule, it is provided that not less than 2 hours before the time fixed for the meeting for the election of Upa-Sarpanch any member of the Panchayat may nominate any other member for election as Upa-Sarpanch and deliver to the Presiding Officer a nomination paper in form "A" appended to the Rules signed by himself as a proposer. It is therefore clear that any member can nominate another member in the prescribed manner at any time before two hours of the time fixed for the meeting for the election of Upa-Sarpanch. The meeting was admittedly scheduled to be held at 3.00 P.M. for the said purpose and therefore, as per Rule 5 (1) any member could have nominated any other member for the said purpose before 1.00 P.M. In this view of the matter, the said notice was contrary to the provisions of Rule 5 (1) and the nominations which had been given at 12.05 P.M. could not have been rejected as rightly held by the competent authority in the impugned order passed under Sec. 51(8) of the said Act. The impugned order is therefore passed on valid grounds and cannot be faulted with.