A.P. Ravani, J.
1. Can a mere irregularity in exercise of powers without anything more - amount to abuse of power and result into removal of the petitioner from office of Sarpanch In the context of the following facts, the aforesaid question has arisen.
2. The petitioner is an elected Sarpanch of Bhayli Gram Panchayat, Bhayli, Taluka and District Vadodara. He was elected in June 1979. By a notice dated October 15, 1980 issued under the provisions of Section 49 of the Gujarat Panchayats Act ('the Act', for short) the petitioner was called upon to explain certain acts of alleged abuses of power. The petitioner replied to the same by his letter dated November 25, 1980. The competent authority, i.e. District Development Officer (DDO), Vadodara, held that the petitioner was guilty of the charges levelled against him. The petitioner preferred an appeal before the Development Commissioner. The Addl. Development Commissioner heard the appeal and held that the petitioner was guilty in respect of the following charges:
A. That branches of Pipal tree which had fallen on the road between Vadodara and Padra and which had affected the electric line and the electric pole, were sold away for consideration of Rs. 205/-. The sale price was determined by direct negotiations and the branches were sold away without following the procedure prescribed under law. It was held that it might have been necessary to remove and further cut down the branches, but it was not necessary to dispose of the same and therefore, the Sarpanch had abused his powers inasmuch as the branches were sold without weighing and without making estimate of the price thereof.
B. It was held that the Sarpanch issued a certificate in favour of one Thakorebhai Ambalal Patel and certified that his yearly income did not exceed Rs. 1800/-. It was held that the Sarpanch was knowing that said Thakorebhai Ambalal was serving and his income was more than Rs. 1800/- and yet the false certificate was given.
3. The other two charges in respect of which the petitioner-Sarpanch was held guilty by the D.D.O. and was exonerated by the Development Commissioner are not required to be referred to for the purpose of the determination of the questions involved in the petition. Before examining the merits of the case, we may have a look at the relevant part of Section 49 of the Act. The section applies to a person who:
has been guilty of misconduct in the discharge of his duties or of any disgraceful conduct or abuses his powers or makes persistent default in the performance of his duties and functions under this Act or has become incapable of performing his duties under this Act....
4. In the instant case, the charge against the petitioner-Sarpanch is that he has abused his powers. The petitioner has produced a resolution passed by the entire General Board of the Panchayat dated July 15, 1980 (Annexure 'C' to the petition). The resolution makes it clear that a big branch of a pipal tree had fallen down and it had blocked the road near Mahadev temple. It had also affected the electric pole and there was a danger of further accident. In, circumstances it was necessary to clear the road immediately. Therefore, in the presence of the members of Panchayat, and other village people, Sarpanch made direct negotiations and the branches of the pipal tree which had fallen down and which were required to be choppad of, were sold at lump sum price of Rs. 205/-. The price was determined by direct negotiations and not by auction sale thereof. It is stated in the reply as well as in the petition that, no one present objected to the aforesaid course being adopted.
5. If one looks at the conduct of the petitioner-Sarpanch, it would be clear that he has not done anything clandestinely. He invited the members of the Panchayat; he apprised everyone of the situation and he took decision. It was an emergent situation. In such a situation the road was required to be cleared so as to avoid the danger of road accidents. Further, it may be noted that it was a pipal tree. People in this country have got religious sentiments regarding cutting of pipal trees. No one would be ready to cut a pipal tree. It is not even the allegation that the price realised is abnormally low. In these circumstances, it cannot be said that the disposal of the branches of the pipal tree was abuse of the power of the Sarpanch. Of course, there is some irregularity. But mere irregularity in exercise of power, without there being anything more, would not amount to an abuse of power.
6. It is nobody's case that by disposing of the branches of the pipal tree, the petitioners wanted to do something unjust or improper. Abuse of power, in the context, would mean misuse of power for some improper and/ or unjust purpose. Therefore, unless an irregularity in exercise of power is proved to have been indulged in for some improper and/or unjust object, the mere irregularity would not amount to abuse of power. Here is a case of bona fide exercise of power without following the proper procedure. The explanation is that in the circumstances it was not possible to follow the detailed procedure prescribed under the Act and the rules. The situation was not an ordinary one. It was an emergent situation calling for an urgent action. An extraordinary situation could never have been tackled by ordinary means. Therefore, the explanation is believable.
7. Assuming that the explanation is not believable, then even the breach is only procedural. Nothing more is pointed out. The irregularity complained of was not motivated by any unjust or improper object. It was not a wholly arbitrary action with a view to exhibit power or to achieve some object having no connection with the function to be performed under the Act. The situation was created all of a sudden accidentally without there being any prior notice. By the very nature of things it was required to be resolved without issuing requisite notice of meeting and without following the formalities of auction-sale. Even so the petitioner took necessary precautions. He kept all the members of the Panchayat and other village people present. In presence of all, he took the decision. In the facts and circumstances of the case, the irregularity complained of cannot be said to be an abuse of powers.
8. Another ground is that the petitioner, in his capacity of Sarpanch had issued a false certificate regarding the yearly income of one Thakorebhai Ambalal and had subsequently withdrawn the same. A copy of the certificate is produced at Annexure 'D' to the petition. Mere reading of the certificate shows that the petitioner has not issued certificate in connection with the total income of Thakorebhai Ambalal. The certificate is in respect of the agricultural income of the said Thakorebhai Ambalal. It is nobody's case that said Thakorebhai is not the owner and occupier of the land admeasuring 2 acre and 1 guntha. It is nobody's case that the agricultural income of Thakorebhai exceeds Rs. 1,800/- per year. It is stated in the certificate that Shri Thakorebhai Patel is a resident of village Bhayali and he owns and occupies A/2 - g/1 of land in the sim of village Bhayali. This is correct as per verification of records. Hence he is a marginal farmer. His agricultural income per year does not exceed Rs. 1,800/-. This is correct and certified accordingly. It is not stated in the certificate that said Thakorebhai has no other income other than agricultural income. Therefore, it cannot be said that the petitioner had knowingly issued the false certificate. In fact what has been certified is correct. There is no untrue statement. Moreover, this certificate has been withdrawn and the same has not been put to any use (or misuse) whatsoever.
9. Thus, there is no misconduct or abuse of power in issuing a certificate in respect of the agricultural income of said Thakorebhai Ambalal. Similarly, in the facts and circumstances of the case, there is no abuse of power in disposing of the branches of pipal tree by direct negotiations. In above view of the matter, the provisions of Section 49 of the Act are not attracted at all. Once the provisions of Section 49 cannot be invoked at all, the order passed by the authorities becomes an order without authority of law. Such an order cannot be sustained. Hence, the same requires to be quashed and set aside.
10. In the facts and circumstances of the case, one would be justified to raise a question, which one is an act of abuse of power The alleged illegal exercise of powers by the petitioner-Sarpanch or the passing of order removing him from the office of Sarpanch It is hoped that those who are charged with the duty to exercise power under Section 49 of the Act and appellate power in this respect shall ponder over the question and answer the same conscientiously. They must realise that they are dealing with the case of an elected representative of the people. His position cannot be lightly disturbed if democracy is to survive.
11. In the result, the petition is allowed. The order passed by the Addl. Development Commissioner dated October 30, 1982 produced at Annexure 'I' by which he confirmed the order passed by the District Development Officer dated August 11, 1982 (Annexure 'G' to the petition) is quashed and set aside. Rule made absolute accordingly with no order as to costs.