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Kodarbhai Becharbhai Patel Vs. Mohanbhai Motibhai Patel and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Appln. No. 1619 of 1971 and Civil appln. No. 2347 of 1971
Judge
Reported inAIR1972Guj247
ActsGujarat Panchayats Act, 1962 - Sections 49(1) and 49(2)
AppellantKodarbhai Becharbhai Patel
RespondentMohanbhai Motibhai Patel and anr.
Appellant Advocate K.G. Vakharia and; C.C. Patel, Advs.
Respondent Advocate P.V. Hathi,; B.J. Shelat, Asst. Govt. Pleader and; R.A.
Cases ReferredChhanalal v. State
Excerpt:
civil - removal of sarpanch - section 49 (1) and 49 (2) of gujarat panchayats act, 1962 - petitioner elected sarpanch of village panchayat - development commissioner removed petitioner from post of sarpanch on account of some irregularities - commissioner passed impugned order when office of sarpanch no longer existed - order bad and must be struck down - certiorari issued quashing impugned order - held, impugned order not to be enforced against petitioner. - - hence that order is bad and must be struck down......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.....
Judgment:
ORDER

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:--

(a) misconduct in the discharge of the duties;

(b) for disgraceful conduct;

(c) for abusing the powers;

(d) for making persistent defaults in the performance of his duties under the Act; and

(e) for becoming incapable of performing the duties under the Act.

Under Section 23 (d) of the Act, no person shall be a member of a panchyat or continue as such who has been removed from any office held by him in any panchayat under any provisions of the Act or in any panchyat, municipality or district local board before the commencement of the Act under any law for the time being in force; and a period of four years has not elapsed from the date of such removal, unless he has, by an order of the State Government notified in the Official Gazette been relieved from the disqualification arising on account of such removal from office. Under Section 48 (2) power has been conferred upon the competent authority to disqualify for a period not exceeding four years any person who has resigned his office as a member, Sarpanch, Upasarpanch, Chairman or Vice-Chairman or otherwise ceased to hold any such office and has been guilty of misconduct specified in sub-section (1) of Section 49; but before such an order of disqualification can be passed, the procedure of giving the person concerned an opportunity of being heard and giving due notice in that behalf has to be followed in the case of an order contemplated by sub-section (2) of Section 49 but unlike Sec.49 (1), the order for disqualification can be passed only on two grounds viz., misconduct specified in sub-section (1) or for incapability of performing the duties. The other grounds, viz., disgraceful conduct, abuse of power or making persistent defaults in the performance of duties and functions are not available to the competent authority for passing the order of disqualification contemplated by Section 49 (2). The proviso to Section 49 (2) is important for this decision and by the proviso it has been laid down that the action of disqualifying a member has to be taken within six months from the date on which the person concerned resigns or cases to hold any such office as is referred to in Section 49 (2). As I have stated above, the competent authority for the purposes of Section 49 is the District Development Officer. Under Section 305 of the Act, the State Government may call for and examine the record of proceedings of any panchayat or of any officer (except any proceedings of the Nyaya Panchayat or of the district or the Sessions Court in judicial proceedings in revision or reference from the proceedings or a Nyaya Panchayat) for the purpose of satisfying itself as to the legality or propriety of any order passed and may revise or modify the order as it shall deem just. Under Section 321 of the Act, the State Government may by notification in the Official Gazette, authorise any officer of Government to exercise any of the powers exercisable by the State Government under the Act. It is common ground before me that by an appropriate notification the powers of the State Government of revision under Section 305 of the Act have been properly delegated to the Development commissioner and, therefore, under Section 305 read with appropriate notification issued in Section 321, the Development Commissioner has the power to revise any order passed by the District Development Officer as the competent authority under Section 49.

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., sub-section (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.

4. As pointed out above, a person can be removed from the office of the member of the Panchayat or Sarpanch, Upa-Sarpanch, Chairman or Vice-Chairman on any one of the five grounds (1) to (e) enumerated above, whereas the order to disqualification under Section 49 (2) after the person has ceased to be in office can be passed only on the ground of misconduct or on the ground of being incapable of performing the duties. If an order for removal can be passed under Section 49 (1) even after the tenure of office in that post is over, it would mean, looking to the provisions of Section 23 (1) (d) that from the date when such an order of removal from office is passed for a period of four years, he would be disqualified though it is not open to the competent authority to disqualify that person on the ground of abuse of powers of making persistent defaults in the performance of the functions and duties or for any disgraceful conduct. Misconduct in section 49 (1) has to be distinguished from disgraceful conduct and by passing an order of remove from office if the tenure of office has come to an end, it would be open to the competent authority, if the contention of Mr. Vakharia is rejected, to get the man disqualified by reason of the provisions of Section 23 (1) (d) indirectly, though it is not open to that authority to pass the order on the ground of abuse of power or persistent defaults. In order to avoid any such absurdity the only way to interpret Section 49 (1) and (2) is to hold that the order for removal from office under Section 49 (1) can be passed only with reference to the balance of the period of tenure of office and if by the time the order comes to be passed, the tenure has come to an end, no order of removal from the office can be passed, though if proper grounds exist and the procedure contemplated by sub-section (2) of Section 49 is followed, a person can be disqualified under that sub-section for a period not exceeding four years. It was urged on behalf of the respondents before me that if this interpretation is accepted, a person who may be guilty of any of the grounds mentioned in Section 49 (1) will escape punished for all times but that is not the case. If after the office comes to an end. The competent authority which chooses, on the ground of misconduct of on the ground of being incapable of performing the duties, to proceed, proceedings can be started so that the disqualification may enure for a period not exceeding four years.

5. As regards the interpretation which I am placing on Section 49 (1), I am fortified by a decision of Division Bench of this Court in Chhanalal v. State, 1 Guj LR 260 = (AIR 1961 Guj 27). In that case, a provision similar to the provision of Section 49 of the Act in Section 26 of the Bombay Local Boards Act of 1923, came to be considered. The facts of that case were that the petitioner before the Court was the President of the District Local Board, Mehsana, at the time when he filed a petition. He was also the President of the previously constituted Local Board. The District Local Board for Mehsana was constituted by elected members in 1957. The petitioner in that case was an elected member of that Board and was elected as its President and functioned as such from July 12, 1957 to June 13, 1958. The boundaries of Mehsana District were changed and the Local Board was dissolved by the State Government on June 13, 1958, the District Local Board for Mehsana District was reconstituted and the petitioner was one of the nominated members of that Board. At a meeting convened for the purpose, the petitioner was elected President of the reconstituted Local Board on June 14, 1958. Though the office of the petitioner as President was for a period of three years from June 14, 1958, on April 4, 1960, the State Government issued a notice on the petitioner calling upon him to show cause why he should not be removed form his office under Section 26 (1) of the District Local Boards Act. A number of allegations were made against him in the show cause notice. Those allegations related to a period prior to June 14, 1958 and thus related to the period when the previously constituted District Local Board was in existence. Immediately after the service of the show cause notice on him, Chhanalal filed the petition before the High Court seeking a Writ of Prohibition directing the State not to proceed with the inquiry contemplated by the show cause notice. The provisions of Section 9 (1) (iii) of the Bombay district Local Boards Act were similar to the provisions of Section 23 (1) (d) of the Act before me and the provisions of Section 25 were similar to the provisions of Section 49 (1). Section 26 was in these terms:--

'26. (1) The term of office of every President or Vice-President shall cease on the expiry of his term of office as a member of the local Board over which he presides; provided that he shall be removable from office, as such President or Vice-President, by the State Government for misconduct, or neglect of or incapacity to perform his duty and a President or Vice-President so removed shall not be eligible for re-election or appointment during the remainder of the term of office of Local Board.'

On these facts, while interpreting the scope of the inquiry under Section 26 (1) of the Bombay Local Boards Act, the Division Bench held after applying the principle of Nocitur a Sociis:--

'When the import of a statute is doubtful associated words can explain and limit the application of each other. The word 'misconduct' in Section 26 of the Local Boards Act is grouped with two other expressions 'neglect' and 'incapacity' to perform duties of a President and it is permissible to determine its meaning by a reference to the associated words provided such reading of it is not inconsistent with the general intent and ambit of the rule.'

The Division Bench further held--

'Even though the office of a President of a District Local Board continues till the expiry of his term of office, he may nevertheless be removed from his office as such President by the State government for misconduct or neglect or duty or incapacity to perform his duty under Section 26 of the Bombay Local Boards Act. The removal from office is to be confined in point of time only to the remainder of the term of the Local Board. The misconduct of which Section 26 of the Act speaks is misconduct during the term of office and not at any point or period of item beyond and before that term of office.'

In arriving at its conclusion the Division Bench sought support from the provisions of Section 9 of the Bombay Local Boards Act, similar to Section 23 (1) (d) of the Act before me; and in view of this conclusion the Division Bench held that the show cause notice issued against Chhanalal was beyond the competence of the State Government.

6. In the instant case, it is common ground that fresh elections to the Panchayat were held in 1967. The petitioner was elected as a member and subsequently was elected as the Sarpanch of the village Panchayat by the members of the Panchyat. At the time when the Development Commissioner, respondent No.2 herein, passed his Order of September 2, 1971, the petitioner was holding office of the Sarpanch of the newly elected Panchayat of Dungarwada village, which had been elected in 1967, and he was not holding the office as Sarpanch of the Panchayat with reference to which misconduct was committed in 1963. It is true that the show cause notice under Section 49 (1) was issued by the District Development Officer on April 19, 1966 during the tenure of the very Panchayat with reference to which the misconduct is alleged to have been committed by the petitioner. But the question is whether there was any office from which the petitioner could have been removed by the Order, dated September 2, 1971, passed by the Development Commissioner. The office of the Sarpanch, with reference to which the show cause notice was issued on April 19, 1966 and with reference to which the misconduct was alleged to have been committed by the petitioner came to an end in 1967 or sometime prior to the fresh elections held in 1967 when the period of the previous Panchayat came to an end. Under these circumstances. I prefer to base my decision on the ground, particularly in the light of the discussion of the legal provisions above, that after 1967, there was no office from which the petitioner could have been removed and though on the ground of misconduct it was open to the competent authority to proceed under Section 49 (2), it was not open to the competent authority in the first instance or to the Development Commissioner in revision to pass any order of removal after the fresh elections were held in 1967. Once the office comes to an and either by resignation or for any other reason, the scope of passing the order under Section 49 (1) of removing the person concerned from that office also comes to an end and the power under Section 49 (1) cannot be exercised if the office from which a person is sought to be removed is not in existence. It is true that the proceedings contemplated by Section 49 (1) may take some time but merely because the proceedings take time the order of removal from an office, which no longer exists, cannot be passed under Section 49 (1). The authorities concerned have an alternative available to them viz., under Section 49 (2), provided they adopt the proceedings in time and abide by the time-limit laid down in Section 49 (2). The Legislature contemplates that the inquiries under Section 49 (1) and Section 49 (2) must be adopted promptly and must be carried out promptly so that the elective processes contemplated by the Gujarat Panchayat Act for membership or for the office of the Sarpanch, Up-Sarpanch, Chairman or Vice-Chairman, are not interfered with or are interfered with to the least possible extent. The Legislature has sought to hold the balance even between the elective processes and the desirability of keeping out those persons who are guilty of misconduct or unable to perform the duties under the Act as contemplated by Section 49 (1). The distinction between the two sub-sections of misconduct available to the competent authority under Section 49 (1) and Section 49 (2) must be clearly borne in mind and this distinction provides the clue to the interpretation of Section 49.

7. Under these circumstances, the Order, Annexure B to the petition having been passed on September 2, 1971, after the petitioner had ceased to occupy the office which he held prior to 1967, must be held to be bad and must be struck down. At the time when the development Commissioner passed the Order, Ex. B removing the petitioner from the office of Sarpanch, the office of the Sarpanch, from which he was sought to be removed, no longer existed. Hence that order is bad and must be struck down. I, therefore, issue a Writ of Certiorari quashing and setting aside the order, Annexure B to the petition, and direct that the order passed by the Development Commissioner in Revision, on September 2, 1971, shall not be enforced against the petitioner. In the result, this Special Civil Application is allowed and the rule is made absolute with no order as to costs. In view of the disposal of the Special Civil application, no order on the Civil Application taken out in this matter.

8. Petition allowed.


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