HARSUKHBHAI GORDHANBHAI HADVANI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Special Civil Application No.5546/99 and Civil Application No.7349/99 in Special Civil Application No.8744/98 were listed today in the board. It was submitted on behalf of the parties that the Civil Application No.7349/99 has been filed in the main Special Civil Application No.8744/98, which is already on the board of final hearing at sr.No.35 and Rule has already been issued in Special Civil Application No.5546/99 on 29.7.1999 and, therefore, all these matters may be taken up together. I find that in Special Civil Application No.8744/98 the Court has passed an order on 4.2.99 that the matter may be listed for final hearing on 23.2.99. In the facts and circumstances of this case and on the request of both the sides, these matters are taken up for final hearing right today. Facts relating to Special Civil Application No.8744/98. The petitioner herein has come with the case that he was elected to the office of the Sarpanch of Timbawadi Gram Panchayat, Timbawadi Taluka and District Junagadh in the year 1996 for a term of 5 years and that this term of the petitioner is the second consecutive term for which he has been elected as a Sarpanch. While the petitioner was so working as Sarpanch he was subjected to notice dt.2.8.97 followed by another notice dt.2.9.97, the copies of which have been annexed as Annexures 'C' and 'D' at page 48-49 and 53-55 with the main petition. In the notice dt.2.8.97 after narrating the allegations, the petitioner was called upon to show cause as to why the action under S.57(1) of the Gujarat Panchayats Act may not be taken against him. The other notice dt.2.9.97 is directly a notice purporting to have been issued under S.57 and, therefore, it is found that both these notices dt.2.8.97 and 2.9.97 are the notices for action under S.57 of the Gujarat Panchayats Act against the petitioner for the allegations as set out therein. The petitioner filed reply dt.8.8.97 to the notice dt.2.8.97 and sent a letter, copy of which has been annexed as Annexure 'E' with the petition and thereby he demanded the copies of the report and three other documents mentioned therein before filing the reply to the notice dt.2.8.97. The D.D.O., Junagadh sent the reply dt.12.9.97 that the report and the copies of the orders, which were asked for by the petitioner had no relevance and the demand was futile. The petitioner was called upon to file the reply before 22.9.97 and was told that he may remain present on 22.9.97. 23/08/1999: Against the aforesaid notices dated 2.8.1997 and 2.9.1997, a Civil Suit No.497 of 1998 was filed before the Civil Judge (Senior division) with an injunction application, but the injunction was not granted by the Civil Court. In the appeal preferred before the District Court also, the order passed by the trial Court refusing injunction was upheld. The replies dated 8/08/1997 and 2 8/07/1998 to the notices were filed. The District Development Officer then passed an order on 21.8.1998 removing the petitioner from the office of Sarpanch of Gram Panchayat, Timbawadi under Sec.57(1) of the Gujarat Panchayats Act. In view of the order dated 21.8.1998 passed by the District Development Officer, the Civil Suit filed against the two notices virtually became infructuous. Against this order dated 21.8.1998 passed by the District Development Officer, Junagadh, the petitioner preferred an Appeal No. 105 of 1998 before the Additional Development Commissioner. In the Appeal No.105 of 1998, the Addl.Development Commissioner granted an order of status-quo. The said order of status-quo remained operative throughout the pendency of the appeal but the appeal itself was decided against the petitioner by the Addl. Development Commissioner by his order dated 8/10/1998 and the order passed by the district Development Officer was upheld. Aggrieved from this order dated 8/10/1998 passed by the Addl. Development Commissioner read with the order of the District Development Officer dated 21.8.1998, the petitioner preferred the present Special Civil Application on 1 2/10/1998 and on 13th October 1998 when the matter came up before the Court, while issuing notice returnable on 10/11/1998, the order of status-quo as on the date on which the writ of this order is received by the concerned authorities of the respondents was directed to be maintained. This Special Civil Application was then admitted on 4th February 1999 and the same was also directed to be listed for final hearing on 23/02/1999 and the interim order as was granted earlier was made absolute till the final decision of this Special Civil Application. Against this order dated 4/02/1999, a Letters Patent Appeal No.269 of 1999 was preferred by the District Development Officer along with Civil Application No.1875 of 1999. The petitioner claimed that he was continuing as a Sarpanch on the strength of the order of status-quo whereas the respondents contended that he had ceased to hold the office from 21/08/1998 and therefore, the petitioner had no authority to continue as Sarpanch. It has been given out before this Court that as against it, the petitioner claimed before the Division Bench in the Letters Patent Appeal that he had filed an affidavit dated 1.4.1999 in the Civil Application No.1875 of 1999 in the Letters Patent Appeal that the respondents themselves had been treating him as Sarpanch and had entered into correspondence with him as such. On behalf of the respondents, it was contended in the Letters Patent Appeal that after the removal of the Sarpanch, the Up-Sarpanch namely, Laxmidas was called upon to function as Sarpanch and take over the charge of Sarpanch, but the Up-Sarpanch did not take over charge for which an explanation is given on behalf of the petitioner that he could not have taken over charge in view of the order of status-quo. Later on, the said Up-Sarpanch Laxmidas was also removed from the office of the Up-Sarpanch by the order dated 7.12.1998 passed by the District Development Officer. Against this order dated 7.12.1998, the said Up-Sarpanch preferred an appeal before the Addl. Development Commissioner and in that appeal also an order of status-quo was granted in favour of the Up-Sarpanch and it is given out by the learned Counsel for the petitioner that the said appeal is still pending. It is given out that the only ground on which the Up-Sarpanch was removed was that he did not comply with the order of taking over the charge of Sarpanch. The Division Bench while deciding the Letters Patent Appeal No.269 of 1999 on 2 8/04/1999 made reference to Sections 55(3), 55(4) and Clause (iv) of sub-section (2) thereof and Sections 59(2) and 51 of the Gujarat Panchayats Act, and observed that ample provisions had been made in the Act to meet with the contingencies which may arise on account of suspension or removal of the Sarpanch and whereas it was brought to the notice of the Division Bench that an officer had already been arranged to discharge the function of the panchayat and the said fact had not been brought to the notice of the learned Single Judge who passed the order on 4/02/1999, the proper course available to the appellant, i.e. the District Development Officer was to approach the learned Single Judge and apprise him of these facts and pray that the order which is already passed by the learned Single Judge, if necessary, be varied and without prejudice to such liberty the Letters Patent Appeal was rejected. An affidavit-in-reply dated 5/11/1998 as filed on behalf of the respondent no.3 is on record to which an affidavit-in-rejoinder dated 18/01/1999 has been filed. Whereas the Division Bench while deciding the Letters Patent Appeal No.269 of 1999, has referred to the Special Civil Application No.8744 of 1998 and had rejected the Letters Patent Appeal on 2 8/04/1999 without prejudice to the liberty to the respondent District Development Officer to approach the learned Single Judge to vary the order dated 4/02/1999 if necessary, the respondents have chosen to file the Civil Application No.7349 of 1999 with the prayer to recall or modify the order dated 4/02/1999 by making a clarification that the officer namely, Assistant Taluka Development Officer, Taluka Jungadh be permitted to function as custodian or administrator of Timbawadi Gram Panchayat. This application dated 17/07/1999 was filed in this Court on 22/07/1999. Facts relating to Special Civil Application No.5546/99 :

(2.) This Special Civil Application was filed on 27th July 1999 by the present petitioner while the earlier petition filed by him being Special Civil Application No.8744 of 1999 was pending before the Court. The filing of the present Special Civil Application was necessitated because the Up-Sarpanch who did not take charge had been removed and view of the order of status-quo as was passed by the Addl. Development Commissioner in favour of the Up-Sarpanch granted on 8/12/1998 against the removal order of 7.12.1998 was operative, the order dated 19/04/1999 was passed by the Government in purported exercise of powers under Section 278 of the Gujarat Panchayats Act, and one Shri P.M.Trivedi, Assistant Taluka Development Officer, was appointed to perform the powers, functions and duties of the said Panchayat until the Sarpanch and Up-Sarpanch are elected under the said Act. It is this order which is the subject matter of challenge in this Special Civil Application for quashing and setting aside the aforesaid order dated 19th April 1999.

(3.) Since the grievance raised in the two Special Civil Applications Nos.8744 of 1998 and 5546 of 1999 and also the grievance raised in Civil Application No.7349 of 1999 are all inter-connected matters relating to the same Panchayat and arising on the basis of the orders passed in relation to the Sarpanch and Up-Sarpanch and appointment of a Government officer to carry on the functioning of the Panchayat as passed by the Government on 1 9/04/1999, it was considered proper to decide all these three matters by this common judgment and order. The concerned Up-Sarpanch has moved two Civil Applications, i.e. Civil Application No.9065 of 1999 in Special Civil Application No.8744 of 1998 and Civil Application No.9067 of 1999 in Special Civil Application No.5546 of 1999 for being joined as party in the respective petitions and both these Civil Applications have been decided on 17/08/1999 and on that basis the concerned Up-Sarpanch has also been heard as party in these matters.