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ibrahim A. Bhikhi Vs. Addl. Development Commissioner and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1979)2GLR426
Appellantibrahim A. Bhikhi
RespondentAddl. Development Commissioner and anr.
Excerpt:
.....panchayat subordinate thereto or any sum recoverable from him. (2) failure to pay the dues by the panchayat member to the panchayat within the statutory period of three months; raval submitted that if the aforesaid three conditions are duly satisfied, the member is bound to incur disqualification. he urged that when an appeal under sub-section (2) of section 25 is to be decided by the state, the appellate authority has only to consider as to whether the three conditions contemplated under section 25(i)(i) are duly satisfied or not so as to come to a conclusion that the member of the panchayat is disqualified. the appellate authority when it decides the appeal under sub-section (2) of section 25 of the act must necessarily function within the statutorily prescribed limits, and if it..........the panchayat. in substance, the submission of mr. raval was that non-payment of the dues by any panchayat member constitutes in essence and substance a disqualification. in his submission, unless three conditions precedent are duly established on the record of the case, there cannot be emergency of any disqualification. mr. raval emphasised the fact, that the following three conditions must be satisfied on the record of the case for the emergence of disqualification as provided in section 23 of the act. the three conditions are:(1) the failure on the part of the member to pay any arrears of any kind due by him to the panchayat or any panchayat subordinate thereto or any sum recoverable from him.(2) failure to pay the dues by the panchayat member to the panchayat within the statutory.....
Judgment:

A.N. Surti, J.

1. The only point which requires consideration in the present petition is, whether the State Government while hearing the appeal under Section 25(2) of the Gujarat Panchayats Act, 1961 (hereinafter referred to as 'the Act') has the jurisdiction or the authority of law to grant instalments for the payment of the entire dues by the member of the Panchayat tot he Panchayat or the Panchayat subordinate thereto or whether any instalments of the type mentioned above can be granted to any member for the payment of any sum recoverable from him in accordance with Chapter 41 of the Act.

2. In order to appreciate the point canvassed by Mr. Raval, the learned advocate for the petitioner, a few relevant facts may be stated.

3. The District Panchayat, Broach by its resolution dated June 14, 1978 disqualified respondent No. 2 as a member of the Broach Taluka Panchayat. Annexure 'A' to the main petition is the copy of the said resolution.

4. Respondent No. 2 was aggrieved by the said decision, and ultimately preferred an appeal before the Additional Development Commissioner, Government of Gujarat, who allowed the appeal filed by respondent No. 2.

5. It is under these circumstances, that the present petition is filed by the petitioner who is the Sarpanch of Sherpura Gram Panchayat and the member of Broach Taluka Panchayat.

6. In the case before me, certain undisputed facts may be stated. Respondent No. 2 had to pay to the Panchayat Rs. 34/- as Panchayat taxes. He had to pay a sum of Rs. 320=06 as land revenue and education cess. He had to pay a sum of Rs. 1000/- as Tagavi dues. Ultimately, respondent No. 2 had to pay a sum of Rs. 2181=06ps.

7. Now in regard to the dues payable by respondent No. 2 to the Panchayat, a special notice was served on respondent No. 2 on October 23, 1973 and the statutory period of three months was also given to him for the purpose of making payment of dues to the Panchayat as provided in Section 23(1)(1) of the Act, and the said period expired on January 23, 1978. The show cause notice was issued by the Panchayat on February 17, 1978 and the reply thereto filed on March 8, 1978. The District Panchayat passed the resolution disqualifying respondent No. 2 on June 14, 1978 and when the appeal was tiled, the appellate authority viz. the District Development Officer, who exercised all the powers of the State under Section 25 of the Act came to the conclusion, that as certain instalments were granted by the Revenue Department in regard to the aforesaid dues to be paid by the respondent member tot he Panchayat, the appeal was allowed, and the order of the competent Authority was set aside.

8. It is under these circumstances, that the petition is filed in this Court challenging the legality of the order passed by the Additional development Commissioner, Gujarat State.

9. At the time of the hearing of this petition, Mr. Raval invited my attention to Section 23(i)(i) which provides as follows:

23 (1) No person shall be a member of a Panchayat of continue as such who.

(1) fails to pay any arrears of any kind due by him to the panchayat or any Panchayat subordinate thereto or any sum recoverable from him in accordance with Chapter VI of this Act, within three months after a special notice in accordance with the rules made in this behalf has been served upon him;

10. In substance, the submission of Mr. Raval before me was, that Clause (i) of Sub-section (1) of Section 23 produces a disqualification for a person to continue as a member of the Panchayat. In substance, the submission of Mr. Raval was that non-payment of the dues by any Panchayat member constitutes in essence and substance a disqualification. In his submission, unless three conditions precedent are duly established on the record of the case, there cannot be emergency of any disqualification. Mr. Raval emphasised the fact, that the following three conditions must be satisfied on the record of the case for the emergence of disqualification as provided in Section 23 of the Act. The three conditions are:

(1) The failure on the part of the member to pay any arrears of any kind due by him to the Panchayat or any Panchayat subordinate thereto or any sum recoverable from him.

(2) Failure to pay the dues by the panchayat member to the panchayat within the statutory period of three months; and

(3) the said default must take place during the period of three months after the service of the special notice to the member of the Panchayat in accordance with the rules made in this behalf.

11. In substance, Mr. Raval submitted that if the aforesaid three conditions are duly satisfied, the member is bound to incur disqualification.

Section 25 of the Act provides as follows:

25. If any member of a panchayat,-

(a) who is elected, appointed or co-opted as such, was subject to any of the disqualifications mentioned in Section 32 at the time of his election, appointment or Co-option as the case may be,

(b) during the term for which he has been elected appointed or co-opted, incurs any of the disqualification, mentioned in Section 23, he shall be disabled from continuing to be a member, and his office shall become vacant.

(2) In every case, the question whether a vacancy has arisen, shall be decided by the competent authority. The competent authority may give its decision either on an application made to it by any person, or on its own motion. Until the competent authority decides that the vacancy has arisen, the member shall not be disabled under Sub-section (i) from continuing to be a member. Any person aggrieved by the decision of the competent authority may, within a period of fifteen days from the date of such decision, appeal to the State Government and the orders passed by the state Government in such appeal shall be final.

x x x x xProvided that no order shall be passed under this sub-section by the competent authority against any member without giving him a reasonable opportunity of being heard.

(3) The provisions of this section shall apply to a co-opted member of the Education Committee of a district panchayat as if such member were a member of district panchayat.

12. Mr. Raval urged before me, that in the instant case, there was already a statutory disqualification for respondent No. 2 to hold the office of a member of the Panchayat as the three conditions contemplated by Section 23(1)(i) of the Act are duly proved on the record of the case on which there was no dispute before me. The Competent Authority did take the view that respondent No. 2 was disqualified to hold the office of a member of the Panchayat, but when an appeal was preferred before the Additional Development Commissioner, the Government of Gujarat, he allowed the appeal of respondent No. 2, as in his opinion, the Revenue Department by its memo dated August 23, 1978 had given to respondent No. 2 the benefit of certain instalments for the purpose of making payment of the entire dues to be paid to the Panchayat. On this sole ground alone, the appeal which was filed by respondent No. 2 was allowed by the Additional Development Commissioner who was exercising the powers of the state under the Act.

13. Mr. Raval had a serious grievance against the impugned order passed by respondent No. 1 who was exercising the powers of the State under Sub-section (2) of Section 25 of the Act. He urged that when an appeal under Sub-section (2) of Section 25 is to be decided by the State, the appellate Authority has only to consider as to whether the three conditions contemplated under Section 25(i)(i) are duly satisfied or not so as to come to a conclusion that the member of the Panchayat is disqualified. In other words, the submission of Mr. Raval was that the Additional Development Commissioner has no jurisdiction nor any authority of law to take into consideration the memo issued by the Revenue Department, State of Gujarat which gave some facilities to respondent No. 2 make payments of the dues to the Panchayat by instalments.

14. There is lot of substance and force in the submission made by Mr. Raval. The Appellate Authority when it decides the appeal under Sub-section (2) of Section 25 of the Act must necessarily function within the statutorily prescribed limits, and if it functions outside the statutory limits, the order passed by the Appellate Authority would be obviously bad in law. In the instant case, it may be emphasised that any member of a Panchayat who is subject to any of the disqualification mention in Section 23 shall be disabled from continuing to be a member and office shall become vacant under Section 25 of the Act. In the case before me, the three conditions as provided in Section 23(i)(i) are duly established in the case and on that point there was no dispute before me, and hence, respondent No. 2 has obviously disabled himself from continuing to be a member of the said Panchayat.

15. Under the aforesaid circumstances when the aggrieved party appeals to the State Government, what will be the jurisdiction of the Appellate Authority? The Appellate Authority has obviously to confine its attention to three conditions as provided in Section 23(i)(i) and has to decide the appeal. It has no jurisdiction nor any authority of law to take into consideration some memo issued by the revenue department or any department on the member of the Panchayat giving to him the benefit or instalments for the purpose of making payments of dues to the Panchayat. At the same time, even the Appellate Authority of its own cannot direct the defaulting member to make payment by instalments to the Panchayat in regard to the dues payable by the member of the Panchayat, to the Panchayat.

In view of what has been stated above, I am convinced, that in the instant case, the Additional Development Commissioner has acted beyond the scope of authority and jurisdiction as provided in Sub-section (2) of Section 25 of the Act, and hence, I must necessarily set aside and quash the impugned order passed by the Additional Development Commissioner.

16. But it may be noticed, that in the instant case, several argumentswere advanced on behalf of respondent No. 2 before the District Development Officer in regard to the validity of the special notice and the amount due and payable by respondent No. 2 to the Panchayat. Thus the contentions raised by respondent No. 2 before the Additional Development Commissioner were not answered and not considered at all, as he disposed of the appeal on a short point viz. that as the revenue department had given the benefit of instalments to respondent No. 2 for the purpose of making payment to the Panchayat in regard to the dues to be paid by him to the Panchayat, the Appellate Authority allowed the appeal filed by respondent No. 2. Under the circumstances, it would be just and proper not only to quash and set aside the order passed by the Additional Development Commissioner, State of Gujarat, but I also direct him to take on his file the appeal filed by respondent No. 2 and to decide the appeal within a period of one month after the receipt of write from this Court to his office. Interim relief granted by this Court to continue till the disposal of the appeal.

As a result of the aforesaid discussion, the petition succeeds to the extent indicated above, and the rule is made partly absolute, but having regard to the facts and circumstances of the case, I make no order as to costs.


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