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Prabhodrai Dhirajram Nayak Vs. the District Panchayat, Surat and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Appln. No. 4832 of 1982
Judge
Reported inAIR1983Guj229; (1983)2GLR1220
ActsGujarat Panchayats Act, 1962 - Sections 49; Gujarat Panchayats Act, 1961 - Sections 49, 49(1), 102, 102(1) and 102(2)
AppellantPrabhodrai Dhirajram Nayak
RespondentThe District Panchayat, Surat and ors.
Appellant Advocate D.D. Vyas, Adv.
Respondent Advocate Anil Dave, Adv. for Purnanand and Co. and; K.N. Valikarimwala, Adv.
DispositionPetition allowed
Excerpt:
.....of gujarat panchayats act, 1961 - petition challenging removal order - petitioner was chairman of nagar panchayat - removed on ground of abusing his power - he was not supplied with copies of preliminary enquiry - democratic election set at naught without due inquiry - whole process vitiated from very start - order of dismissal quashed. - - (e) be responsible for the safe custody of the fund of the panchayat; 9, it was stated that the remington machine was purchased according to the resolution passed by the executive committee of the nagar panchayat, 7. now, if one examines each allegation and the reply submitted, it clearly appears that nowhere in the allegation it is suggested that the chairman did something which was not within his powers or himself did a particular act which he.....orders.l. talati, j.1. the petitioner was the chairman of bardoli nagar panchayat, district surat, and he was served with a notice under section 49 of the gujarat panchayats act, 1961. that notice was signed by the secretary, executive committee of the district panchayat, surat, who was also district development officer. district panchayat, surat. the petitioner filed a reply. thereafter it appears that the executive committee of the surat district panchayat met on 27-7-1982 where the petitioner remained present with his advocate shri m.k. hakim. it appears that this were question.; and answers between the associate member shri c. d. patel and the petitioner. it appears that some questions were replied by the petitioner and some were replied by his advocate. thereafter, the district.....
Judgment:
ORDER

S.L. Talati, J.

1. The petitioner was the Chairman of Bardoli Nagar Panchayat, District Surat, and he was served with a notice under Section 49 of the Gujarat Panchayats Act, 1961. That notice was signed by the Secretary, Executive Committee of the District Panchayat, Surat, who was also District Development Officer. District Panchayat, Surat. The petitioner filed a reply. Thereafter it appears that the Executive Committee of the Surat District Panchayat met on 27-7-1982 where the petitioner remained present with his Advocate Shri M.K. Hakim. It appears that this were question.; and answers between the Associate Member Shri C. D. Patel and the petitioner. It appears that some questions were replied by the petitioner and some were replied by his Advocate. Thereafter, the District Panchayat, Surat, passed a resolution removing the petitioner from the Chairmanship of Nagar Panchayat, Bardoli, and also from the membership of the Bardoli Nagar Panchayat. This was on the basis that the Executive Committee of the Surat District Panchayat came to the conclusion that all allegations Nos. 1 to 9 were proved and, therefore, it was established that the petitioner had abused his powers as contemplated by Section 49 (1) of the Gujarat Panchayat Act, 1961. An appeal was preferred to the competent authority who was Additional Development Commissioner, Gujarat State, and that appeal was partly allowed and the petitioner was removed as the Chairman of the Bardoli Nagar Panchayat. However, he wag continued as Member of the Bardoli Nagar Panchayat. That was done on 30th September 1982. Thereafter this petition is filed in this Court praying that the orders passed by the District Panchayat, Surat, and the Additional Development Commissioner, who are joined as respondents Nos. 1 and 3, may be set aside and quashed.

2. The contention as to whether the Secretary, Executive Committee, who happened to be also the District Development Officer of the Surat District Panchayat, had the authority to issue the notice under Section 49 or as to whether the Executive Committee of the District Panchayat, Surat, was the 'competent authority' to pass the Resolution, was not pressed in view of the Notification issued by the State Government appointing these persons to be the 'competent authority' to act under Section 49 of the Gujarat Panchayats Act, 1961.

3. The real questions which were pressed were two-fold. Firstly, rules of natural justice were not complied with in the sense that the papers of preliminary enquiry on the basis of which notice came to be issued were not supplied to the petitioner. And, the second point which was urged was that all the allegations 1 to 9 did not disclose that there was any 'abuse of authority as contemplated under Section 49 of the Gujarat Panchayats Act, 1961.

4. Now, in order to appreciate these contentions, it would be necessary to refer to the executive functions of the Chairman which are prescribed by Section 47 of the Gujarat Panchayats Act, 1961. The relevant portion would read as under:

'47. (1) Save as otherwise expressly provided by or under this Act, the executive power, for the purpose of carrying out the provisions of this Act and the resolutions passed by a Gram Panchayat or Nagar Panchayat vests in the Sarpanch or, as the case may be, the Chairman thereof who shall be directly responsible for the due fulfilment of the duties imposed upon the panchayat by or under this Act.............

(2) Without prejudice to the generality of the foregoing provisions:--

(i) in the case of a Gram Panchayat, its Sarpanch and in the case of a Nagar Panchayat, its Chairman shall--

(a) preside over and regulate the meetings of the Panchayat;

(b) exercise supervision and control over the acts done and action taken by all officers and servants of the panchayat;

(c) incur contingent expenditure up to fifty rupees at any one occasion;

(d) operate on the fund of the Panchayat including authorisation of payment, issue of cheques and refunds;

(e) be responsible for the safe custody of the fund of the Panchayat;

(f) cause to be prepared all statements and reports required by or under this Act;

(g) exercise such other powers and discharge such other functions as may be conferred or imposed upon him by this Act or rules made thereunder.' It is also necessary to refer to Section 102 (2) of the Gujarat Panchayats Act, 1961, which reads as under:

'102 (2), A Secretary of a Gram Panchayat shall subject to the control of the Sarpanch or Chairman, as the case may be --

(a) keep in his custody the records and registers of the Panchayats,

(b) issue receipts under his signature for sums of money received by him on behalf of the Panchayat,

(c) prepare all statements and reports required under this Act, and

(d) perform such other functions and duties under this Act as may be prescribed.'

Other servants as may be necessary for the proper exercise of powers and for the purpose of discharging duties and performing functions under the Act and the Rules are also appointed under Section 102 (1) (b) of the Gujarat panchayats Act and those servants work under the Secretary of the Nagar Panchayat. Now that, therefore, there is a Chairman of the Nagar Panchayat and there is also a Secretary of all the Nagar Panchayats; the Secretary of a Nagar Panchayat is a full-time servant and he is responsible for seeing that the Nagar Panchayat runs in accordance with law, i. e. Gujarat Panchayats Act and the Rules made thereunder,

5. In this particular case, before we deal with Sections 49, Sections 102 and Sections 47, it is necessary to see as to what were the allegations which were made against the Chairman of the Bardoli Nagar Panchayat. There were nine allegations and those allegations, in short, were as under:--

(l) Nagar Panchayat purchased submersible pumps and for that purpose, tenders were invited from several merchants. The rates dated 6-4-1981 were sanctioned. However, it was found that there were erasures in dates and therefore, it was inferred that the rates which were sanctioned were obtained subsequently and the dates were erased.

(2) Expenditure of Rs. 18,159-69 P. was incurred for the purpose of constructing a wall at Bardoli Cinema Road. Plans and estimates were not got prepared and rates were not invited. Technical sanction was not obtained. Some rates were invited and dates were overwritten. Payment was made on 20th April 1981, while the work was sanctioned on 8-6-1981 and, therefore, payment was made before the work was sanctioned.

(3) Before purchasing steel in accord-dance with the resolution dated 7-6-1881, Rasiklal Maganlal was paid Rs. 992-60 P. for the purchase of steel and this purchase was made without obtaining rates from other persons and, therefore, it was not in accordance with the rules, and the purchase was arbitrary,

(4) During the period between 23-4-1981 and 25-7-1981, pipes worth Rupees 37,703.55 P. were purchased without following proper procedure.

(5) In Bardoli Nagar on Cinema Road, Astan Road, Ten Road and Sardar Chawk, the estimates were prepared for Asphalt Road and the estimate came to Rs. 3,60,675/-. These estimates were not separately prepared for each work and not in the forms prescribed. The draft tender paper was not prepared and it was not got sanctioned. No specifications were prepared. Deduction was not made from the bill in regard to the earth which was not spread and, though the work was completed on 30th April, 1981, in the measurement book, the materials lying on the site were not noted.

(6) Octroi Assistants were appointed in excess than authorized by the resolution,

(7) For the purchase of electrical goods, advertisement was given in GUJARAT MITRA calling for rates and the last date fixed was 16-2-81 and yet, oral order was given to the Secretary by the Chairman that the rates received after the date also should be considered.

(8) Tractor was got repaired and a payment of Rs. 2,814/- was paid and that was done without obtaining technical opinion and without obtaining rates.

(9) The Nagar Panchayat purchased old Remington Type-writer paying Rs. 2,400/-.

6. In regard to all the allegations, detailed replies were given. To put them shortly, in regard to allegation No. 1, it was stated that tenders were passed by the General Board. In regard to allegation No. 2, it was stated that materials were purchased which were sanctioned by the Building Committee of the Nagar Panchayat and the work was done departmentally. The rates which were sanctioned on 3-6-1981 were the rates for other areas of the Nagar Panchayat and not for the work which was already completed in regard to the work at Cinema Road. In regard to allegation No. 3, it was stated that the purchases were made by the servants of the Nagar Panchayat. In regard to allegation No. 4 also, it was stated that the purchased were made by the servants of the Nagar Panchayat. In regard to allegation No. 5, it was stated that the work was started by the old Nagar Panchayat which was only continued. The final bill was not paid and whatever work was not done, the amount will be, deducted. In regard to allegation No. 6. it was stated that the recruitment was done by the Octroi Committee of which the petitioner was not even a member. In regard to allegation No. 7, it was stated that the rates which were received were n6t from sufficient number of persons and, therefore, the Secretary was asked to accept the rates which were received after the date fixed. In regard to allegation No. 8. it was stated that the tractor was required to be repaired immediately and, therefore, it was done by the Health Committee. In regard to allegation No. 9, it was stated that the Remington Machine was purchased according to the resolution passed by the Executive Committee of the Nagar Panchayat,

7. Now, if one examines each allegation and the reply submitted, it clearly appears that nowhere in the allegation it is suggested that the Chairman did something which was not within his powers or himself did a particular act which he was not authorized to do. Here, it is required to be noted that if purchases are made, works are done, . persons are appointed, or, at some places, dates are seen erased; it can never be assumed that it was done by a particular gentleman unless it is so found in an enquiry.

8. Now, therefore, the notice itself shows that a preliminary enquiry was made. Naturally, therefore, some statements must have been recorded. It is an admitted position that the copies of those statements were not supplied to the petitioner. When the grievance was made that, the copies were not supplied, the Executive Committee of the District Panchayat assumed that as all the record was available with the Nagar Panchayat and as the Chairman of the Nagar Panchayat had an access to that record, no copies were required to be supplied This would mean that rid enquiry at all was made and the notice was issued on the basis of the record and on perusal of the same. The notice itself says something else. The notice says that this is found in preliminary enquiry. No notice could have been issued to the Chairman of the Nagar Panchayat without making any preliminary enquiry because there, were powers under Sections 47 which were ' vested in the Chairman. There were also powers vested in the Secretary of the' Panchayat under Section 102 (2). Now, therefore, when there was a whole time paid Secretary who was the Executive Officer of the Nagar Panchayat and who was vested with certain powers and he was to discharge certain functions and also discharge responsibilities under the Act and the Rules, normally it would be that person who would invite tenders, who would look after the execution of the work, who would make purchases and would guide various committees in discharge of their duties so that the committees may function within the four corners of law. If, therefore, the Secretary of the Executive Committee, District Panchayat, thought to issue notice to the petitioner, it would mean that he did make a preliminary enquiry, did record certain statements and from those statements, he could have learnt that it was not the Secretary of the Panchayat or other servants, but it was the Chairman who asked them to do things in a particular way and, therefore, the Chair-man acted in a particular way. If those were the allegations made by the Section retary or other servants in a preliminary enquiry, copies of those statements were required to be given to the petitioner. If no such statements were recorded, it was highly absurd to assume that all that was done was done by the Chairman, the petitioner, and nothing was done by the Secretary. The charge proved according to the Executive Committee of the Surat District Panchayat is that the petitioner abused his powers. Section 49 is meant for the 'removal from office' ' an erring Chairman. It contemplates the' following grounds for removal:

(1) A person guilty of misconduct in the discharge of his duties; or

(2) a person who has a disgraceful conduct; or

(3) who abuses his powers; or

(4) makes, persistent default in the performance of his duties and functions under the Act; or

(5) becomes incapable of 'performing. his duties under the Act.

9. Now, the only allegation against the present petitioner is that he abused his powers. According to Black's Law Dictionary, Fifth Edn., if it is used as a noun, it would mean 'everything which is contrary to good order established by usage. Departure from reasonable use; immoderate or improper use. Physical or mental maltreatment. Misuse. Deception.' If it is used as a verb, the meaning would be 'To make excessive or improper use of a thing, or to employ it in a manner contrary to the natural or legal rules for its use. To make an extravagant or excessive use, as to abuse one's authority.' Here, in this section the word 'abuse' is used as a verb. The use is as under. 'abuses his powers'. It clearly indicates that it is used as a verb. Therefore, it was required to be shown that he made 'excessive or improper use of a thing' or employed it 'in a manner contrary to the natural or legal rules for its use' or that he made 'an extravagant or excessive use, as to abuse one's authority'. Now, this is required to be shown in reference to the power conferred upon him.

10. I have already enumerated the powers which are prescribed by Section 47. If one examines every allegation, it would only show, at the highest, to be lack of supervision. 'Lack of supervision' could never be equated with 'abusing of power'. It could be that, if an enquiry was properly held, it could have been shown that, either the petitioner misused his powers or the Secretary misused his powers. But, for that purpose, a proper enquiry was required to be made. Preliminary enquiry was made and the papers were not made available to the petitioner. Apart from the preliminary inquiry. Sections 49 contemplates that the Chairman may be removed from office after giving him an opportunity of being heard and giving due notice to him in this behalf to the Panchayat and after such inquiry as it is deemed necessary. Now, therefore, not only a notice; not only an opportunity of being heard, but 'inquiry' is contemplated. The papers show that an Associate Member of the Executive Committee of the District Panchayat put certain questions one by one and got answers either from the petitioner or from his lawyer. It clearly appears that it was not an 'inquiry' but a verbal altercation , or verbal exchanges between the two parties. One party was defending him- self and the other from the questions put clearly appears that he had made up his mind. and after so having made up his mind, he led the Executive Committee to pass the resolution. To say the least, it is more than clear that an elected person, like the Chairman of a Nagar Panchayat, is treated most shabbily. In the first instance, he was not supplied with copies of preliminary inquiry. When he requested for the copies of the preliminary inquiry, he was told that the papers were in the Nagar Panchayat and he can inspect there. Thereafter, when detailed answers were given in regard to each allegation, it was more than clear that it was not possible even to allege as to what the Chairman did or what the Secretary did. The result was only an altercation between the two Members in the Executive Committee and thereafter without any inquiry, a resolution came to be passed and an elected Chairman of the Nagar Panchayat was removed. A democratic election was set at naught without due inquiry and the whole process was vitiated from the very start.

11. The result would be that this petition is allowed and the orders pass-ed by the Executive Committee of the District Panchayat. Surat, and the orders passed by the Additional Development Commissioner, respondents Nos. 1 and 3 are hereby quashed and set aside. Rule is made absolute. No order as to costs.


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