MUKESHBHAI RAJENDRABHAI SHAH Vs. ADDL DEVELOPMENT COMMISSIONER

JUDGEMENT

(1.) .The petitioner, by this application under Art. 226 of the Constitution of India, calls in question the legality and validity of the order dated 3/06/1997, passed by the District Development Officer, Baroda, removing him as the member of Chhani Gram Panchayat, and also the order dated 5/12/1997, passed by the Additional Development Commissioner in Appeal No. 28 of 1997, confirming the order of the District Development Officer.

(2.) Necessary facts, leading the petitioner to file this application, may in brief be stated. The petitioner was elected as the member of Chhani Gram Panchayat (hereinafter referred to as "the Panchayat"). At a meeting held thereafter for the election of the Deputy Sarpanch, in accordance with Sec. 9(3)(c) of the Gujarat Panchayats Act, 1993 (for short "the Act") he succeeds in getting himself elected as the Upa-Sarpanch of the Panchayat, and since his such election he has been holding the office of Upa-Sarpanch for the last more than 2 years. By the passage of time, the District Development Officer (D.D.O.) the competent authority within the meaning of Sec. 57 of the Act came to know that petitioner was misusing his office, and always stepping out of line, he used to write the chits directing the Octroi Clerk to permit certain companies or persons to bring into the local limits of the Panchayat their goods without the payment of octroi duty or on payment of trifling duty under different devices. At times oral directions were also given. Once by a three-wheeler tempo goods were being taken into the village limits. The petitioner thus poked his nose into the levy of duty as a result, without levying the octroi duty the tempo with goods was permitted to enter into the Panchayat's limits. For such unjust indulgence development charges of Rs. 500.00 were collected. By such indulgence, the Gram Panchayat sustained a loss of huge amounts which otherwise the Panchayat would have earned levying octroi duty at the prevalent rates. On another occasion writing a chit the petitioner directed the Octroi Clerk to permit a motor vehicle loaded with iron-sheet. The Octroi Clerk had in turn permitted the vehicle to enter into the local limits of the Panchayat without payment of octroi duty. The petitioner, thus, caused titanic financial loss to the Panchayat. There is a company known as "Conwest Limited" within the local limits of the Panchayat. Showing 32 misleading receipts for which the petitioner had subtly contrived to show unjust favour, the company had brought the goods into the local limits of the Panchayat by paying only Rs. 400/ - the development charges. It could not be ascertained of what amounts in fact the octroi duty was to be levied, but it appeared that the octroi duty was considerably and substantially higher than Rs. 400.00, the development charges collected from the company. The Panchayat on this occasion also sustained heavy loss of octroi duty. The Cargo Motors is also another business concern within the local limits of the Panchayat. Many times this company had also brought the goods within the local limits of the Panchayat without the payment of octroi duty because of petitioner's overpowering the members of staff. When the company was asked to furnish the particulars about the brought into the local limits of the Panchayat, it came to the notice that owing to unjust favour from the petitioner, in all the goods to the tune of Rs. 1,68,00,000.00 were brought into the local limits without payment of octroi duty. The D.D.O. having come to know about such malfeasances asked the Sarpanch to recover the octroi duty. When the company was directed to pay the octroi duty of Rs. 4,20,000.00 within the period of 7 days, the company vide its letter dated 22/11/1995 replied disowning its liability. It was also known from the materials placed before the authority that Cargo Motors had brought the goods within the local limits of the Panchayat on 10/02/1996 and 1 1/02/1996, the value of which came to Rs. 17,55,526.40 ps. The octroi duty leviable on those goods was assessed at Rs. 35,110.50 ps. When Cargo Motors was, at the instance of the petitioner, illegally permitted to bring into the village limits the goods without levying octroi duty, the Panchayat sustained a loss of Rs. 35,110.50 ps. Not only that, but the Taluka Panchayat sustained the loss of 10% thereof and the District Panchayat sustained the loss of 15% thereof. By passage of time, the District Development Officer found that levy of octroi duty was hole and corner affairs about which the petitioner had led the staff by the nose, and helpless staff was playing into his hands. On further inquiry in his own way the Dist. Development Officer also found that the petitioner had defrauded the Panchayat misusing his office, so as to have unjust enrichment. He had caused heavy financial loss to the Panchayat by artfully directing the overawed staff on octroi side not to levy the octroi duty or to collect only the development charges of a meagre amount and permit the concerned persons or the companies to bring into the Panchayat's limits their goods. On such realization, the Dist. Development Officer issued a notice to show cause on 3/04/1996. The petitioner on being served with the notice prayed for the copies of certain documents, but he was not clear in his application as to the copies of which of the documents he was praying for. As every thing was not specific, but evasive and unascertainable, he was informed on 29/09/1996 to be specific and precise about the documents but thereafter also he did not put forth his demand with specific details. He then appeared before the District Development Officer, the competent authority, but did not file any reply. He engaged an Advocate to defend. The matter was then adjourned for several times, and finally at the conclusion of the hearing the District Development Officer passed the order on 3/06/1997 removing the petitioner as the Member of the Panchayat invoking his powers under Sec. 57 of the Act. Being aggrieved by such order, the petitioner preferred an Appeal No. 28 of 1997 which came to be dismissed on 5/12/1997 by the Additional Development Commissioner, Gujarat State, Gandhinagar. It is against these two orders, the present application is filed, calling in question the legality and validity of the orders removing him from the office of the Member of the Panchayat.

(3.) It is the contention of the petitioner that the allegations levelled against him are false. He was not aware about the incident of collection of Rs. 500.00 as development charges. He never informed the Octroi Clerk to recover only Rs. 400/- by way of development charges and allow Conwest Limited to bring its goods into the local limits of the Panchayat. He had also never asked the Panchayat to accept the deposit of Rs. 50,000.00 from Cargo Motors Limited and permit that company to bring its goods without payment of octroi duty. He as alleged did no act prejudicial to the interest of the Gram Panchayat. The order passed by the District Development Officer, can in no case, be sustained as it suffers from several infirmities. The opportunity of being heard was not given. Without assigning any reason, much less sufficient, and appreciating the evidence before him, the District Development Officer passed the order. As contemplated by Sec. 57 of the Act, inquiry was also not held and hearing was not fixed. To mar his reputation, the respondent Nos. 3 and 4 were trying their best and it was also to secure their political goal. Virtually there is no evidence on record and without any evidence, when the orders are passed, the same are required to be quashed. Fresh inquiry may be ordered remanding the case to District Development Officer, etc.