Harsukhbhai Gordhanbhai Hadvani Vs. State of Gujarat - Court Judgment

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(i) civil - removal - sections 57 and 278 of gujarat panchayats act, 1962 - whether order removing petitioner from office of sarpanch valid - nothing on record to show petitioner guilty of misconduct in discharging duties - unless cogent proof of clear misconduct or persistent default in performance of duties or abuse of powers contemplated under section 57 action of removal not be resorted to - replies to notices filed by petitioner not been dealt with - held , order removing petitioner from office of sarpanch liable to be set aside. (ii) appointment - whether government entitled to resort to section 278 to appoint government officer to discharge functions of panchayat until sarpanch and upsarpanch are elected - provisions made in sections 55 and 59 (2) relating to functioning of panchyat - functions be discharged by remaining members when sarpanch and upsarpanch not available - held, no need to resort to section 278. - - the petitioner has not even been alleged to be an a better in this fir which was lodged by the taluka panchayat itself. the replies to the notices which have been filed by the petitioner do not appear to have been dealt with and this impugned order as was passed by the district development officer removing the petitioner from the office of the sarpanch has been passed without an objective application of mind and without considering the case with which the petitioner had given in the reply to the notices and the whole purpose of calling upon the petitioner to file his reply has been defeated. in such matters, when the officers charged with the duties under the panchayats act exercise such statutory powers against the elected office bearers as a part of the local authorities like the panchayats when they are elected for a definite tenure, the officers cannot threat such elected officers as if they are passing the impugned orders in relation to the employees and unless and until there is cogent proof of clear misconduct or the persistent default in performance of the duties or the abuse of powers as contemplated under section 57 of the act, the drastic action of removal should not be resorted to. 8744 of 1998 has been allowed as above and the petitioner therein stands relegated to the position of the elected sarpanch and his tenure is for a period of five years from 1996 which is to expire in 2001 and therefore, this order deserves to be withdrawn by the government itself as a natural consequence of the success of special civil application no. (v) be responsible for the safe custody of the fund of the panchayat; so far the functioning of the panchayat is concerned, enough care has been taken by the legislature itself by making appropriate provisions in sections 55 and 59(2) as has been reproduced above and there was no question of exercise of any powers under section 278 in the name of removal of difficulties so as to appoint a government officer for discharging the functions of the said panchayat which could be very well discharged by the remaining members of the panchayat even if the sarpanch and up-sarpanch were not treated to be available for the functioning of the panchayat by the government. it is therefore, a clear case of an arbitrary exercise of the powers under section 278 of the act as there was no difficulty for the functioning of the panchayat and the panchayat could very well function even in absence of sarpanch and up-sarpanch in accordance with the provisions to which the reference had been made by the division bench while deciding the letters patent appeal on 29th april, 1999 to which a detailed reference has been made hereinabove.orderm.r. calla, j.1. special civil application no. 546/99 and civil application no. 7349/99 in special civil application no. 8744/98 were listed today in the board. it was submitted on behalf of the parties that the civil application no. 7349/99 has been filed in the main special civil application no. 8744/98, which is already on the board of final hearing at sr. no. 35 and rule has already been issued in special civil application no. 5546/ 99 on 29-7-1999 and, therefore, all these matters may be taken up together. i find that in special civil application no. 8744/98 the court has passed an order on 4-2-99 that the matter may be listed for final hearing on 23-2-99. in the facts and circumstances of this case and on the request of both the sides, these matters are taken up for final hearing right today. facts relating to special civil application no. 8744/98-the petitioner herein has come with the case that he was elected to the office of the sarpanch of timbawadi gram panchayat, timbawadi taluka and district junagadh in the year 1996 for a term of 5 years and that this term of the petitioner is the second consecutive term for which he has been elected as a sarpanch. while the petitioner was so working as sarpanch he was subjected to notice dt. 2-8-97 followed by another notice dt. 2-9-97, the copies of which have been annexed as annexures 'c' and 'd' at page 48-49 and 53-55 with the main petition. in the notice dt. 2-8-97 after narrating the allegations, the petitioner was called upon to show cause as to why the action under section 57(1) of the gujarat panchayats act may not be taken against him. the other notice dt. 2-9-97 is directly a notice purporting to have been issued under section 57 and, therefore, it is found that both these notices dt. 2-8-97 and 2-9-97 are the notices for action under section 57 of the gujarat panchayats act against the petitioner for the allegations as set out therein. the petitioner filed reply dt. 8-8-97 to the notice dt. 2-8-97 and sent a letter, copy of which has been annexed as annexure 'e' with the petition and thereby he demanded the copies of the report and three other documents mentioned therein before filing the reply to the notice dt. 2-8-97. the d.d.o., junagadh sent the reply dt. 12-9-97 that the report and the copies of the orders, which were asked for by the petitioner had no relevance and the demand was futile. the petitioner was called upon to file the reply before 22-9-97 and was told that he may remain present on 22-9-97.23rd august. 1999:against the aforesaid notices dated 2-8-1997 and 2-9-1997, a civil suit no. 497 of 1998 was filed before the civil judge (senior division) with an injunction application, but the injunction was not granted by the civil court. in the appeal preferred before the district court also, the order passed by the trial court refusing injunction was upheld. the replies dated 8th august, 1997 and 28th july, 1998 to the notices were filed. the district development officer then passed an order on 21-8-1998 removing the petitioner from the office of sarpanch of gram panchayat, timbawadi under section 57(1) of the gujarat panchayats act. in view of the order dated 21-8-1998 passed by the district development officer, the civil suit filed against the two notices virtually became infructuous. against this order dated 21-8-1998 passed by the district development officer, junagadh, the petitioner preferred an appeal no. 105 of 1998 before the additional development commissioner, in the appeal no. 105 of 1998, the addl. development commissioner granted an order of status-quo. the said order of status-quo remained operative throughout the pendency of the appeal but the appeal itself was decided against the petitioner by the addl. development commissioner by his order dated 8th october, 1998 and the order passed by the district development officer was upheld. aggrieved from this order dated 8th october, 1998 passed by the addl. development commissioner read with the order of the district development officer dated 21-8-1998, the petitioner preferred the present special civil application on 12th october, 1998 and on 13th october, 1998 when the matter came up before the court, while issuing notice returnable on 10th november, 1998, the order of status-quo as on the date on which the writ of this order is received by the concerned authorities of the respondents was directed to be maintained. this special civil application was then admitted on 4th february, 1999 and the same was also directed to be listed for final hearing on 23rd february, 1999 and the interim order as was granted earlier was made absolute till the final decision of this special civil application. against this order dated 4th february, 1999, a letters patent appeal no. 269 of 1999 was preferred by the district development officer along with civil application no. 1875 of 1999. the petitioner claimed that he was continuing as a sarpanch on the strength of the order of status-quo whereas the respondents contended that he had ceased to hold the office from 21st august, 1998 and therefore, the petitioner had no authority to continue as sarpanch. it has been given out before this court that as against it, the petitioner claimed before the division bench in the letters patent appeal that he had filed an affidavit dated 1 -4-1999 in the civil application no. 1875 of 1999 in the letters patent appeal that the respondents themselves had been treating him as sarpanch and had entered into correspondence with him as such. on behalf of the respondents, it was contended in the letters patent appeal that after the removal of the sarpanch, the up-sarpanch namely, laxmidas was called upon to function as sarpanch and take over the charge of sarpanch, but the up-sarpanch did not take over charge for which an explanation is given on behalf of the petitioner that he could not have taken over charge in view of the order of status-quo. later on, the said up-sarpanch laxmidas was also removed from the office of the up sarpanch by the order dated 7-12-1998 passed by the district development officer. against this order dated 7-12-1998, the said up-sarpanch preferred an appeal before the addl. development commissioner and in that appeal also an order of status-quo was granted in favour of the up-sarpanch and it is given out by the learned counsel for the petitioner that the said appeal is still pending. it is given out that the only ground on which the up-sarpanch was removed was that he did not comply with the order of taking over the charge of sarpanch. the division bench while deciding the letters patent appeal no. 269 of 1999 on 28th april, 1999 made reference to sections 55(3), 55(4) and clause (iv) of sub-section (2) thereof and sections 59(2) and 51 of the gujarat panchayats act and observed that ample provisions had been made in the art to meet with the contingencies which may arise on account of suspension or removal of the sarpanch and whereas it was brought to the notice of the division bench that an officer had already been arranged to discharge the function of the panchayat and the said fact that not been brought to the notice of the learned single judge who passed the order on 4th february, 1999, the proper course available to the appellant, i.e. the district development officer was to approach the learned single judge and apprise him of these facts and pray that the order which is already passed by the learned single judge, if necessary, be varied and without prejudice to such liberty the letters patent appeal was rejected. an affidavit-in-reply dated 5th november, 1998 as tiled on behalf of the respondent no. 3 is on record to which an affidavit in rejoinder dated 18th january, 1999 has been filed. whereas the division bench while deciding the letters patent appeal no. 269 of 1999, has referred to the special civil application no. 8744 of 1998 and had rejected the letters patent appeal on 28th april, 1999 without prejudice to the liberty to the respondent district development officer to approach the learned single judge to vary the order dated 4th february, . 1999 if necessary, the respondents have chosen to file the civil application no. 7349 of 1999 with the prayer to recall or modify the order dated 4th february, 1999 by making a clarification that the officer namely. assistant taluka development officer, taluka jungadh be permitted to function as custodian or administrator of timbawadi gram panchayat. this application dated 17th july, 1999 was filed in this court on 22nd july, 1999.facts relating to special civil application no. 5546/99 :2. this special civil application was filed on 27th july, 1999 by the present petitioner while the earlier petition filed by him being special civil application no. 8744 of 1999 was pending before the court. the filing of the present special civil application was necessitated because the up-sarpanch who did not take charge had been removed and view of the order of status-quo as was passed by the addl. development commissioner in favour of the up-sarpanch granted on 8th december, 1998 against the removal order of 7-12-1998 was operative, the order dated 19th april, 1999 was passed by the government in purported exercise of powers under section 278 of the gujarat panchayats act, and one shri p. m. trivedl, assistant taluka development officer, was appointed to perform the powers, functions and duties of the said panchayat until the sarpanch and up-sarpanch are elected under the said act. it is this order which is the subject-matter of challenge in this special civil application for quashing and setting aside the aforesaid order dated 19th april, 1999.3. since the grievance raised in the two special civil applications nos. 8744 of 1998 and 5546 of 1999 and also the grievance raised in civil application no. 7349 of 1999 are all inter-connected matters relating to the same panchayat and arising on the basis of the orders passed in relation to the sarpanch and up-sarpanch and appointment of a government officer to carry on the functioning of the panchayat as passed by the government on 19th april, 1999, it was considered proper to decide all these three matters by this common judgment and order. the concerned up-sarpanch has moved two civil applications, i.e. civil application no. 9065 of 1999 in special civil application no. 8744 of 1998 and civil application no. 9067 of 1999 in special civil application no. 5546 of 1999 for being joined as party in the respective petitions and both these civil applications have been decided on 17th august, 1999 and on that basis the concerned up-sarpanch has also been heard as party in these matters.4. so far as the challenge to the order passed against the petitioner sarpanch harsukhbhai hadvani is concerned, the same has been challenged by the petitioner on grounds more than one including the ground that even on the basis of the allegations which had been levelled against the petitioner, there was no case of misconduct and there was nothing on record to show that the petitioner had been guilty of misconduct in discharging his duties or of any disgraceful conduct or abuse of power or that he had made persistent default in performance of duties and functions under the act and it has been submitted that apart from the fact that the allegations are factually incorrect on the basis of which the order has been passed under section 257 of the act, the same has been passed without application of mind and that it also suffers from an error apparent on the face of the record inasmuch as the petitioner had never granted permission to any party for the purpose of construction of a hotel and yet it has been treated as if such a permission had been granted by the petitioner. learned counsel for the petitioner made a pointed reference to the document dated 19th january, 1996 i.e. annexure l and submitted that the permission granted to naliniben mahendrakumar rajani nowhere refers to the construction of a hotel and it was a permission only for construction of a residential building. said naliniben already held the permission for non-agricultural use of this land. it has not been disputed even by mr. oza appearing on behalf of the district development officer that the sarpanch is the competent authority for the purpose of granting permission for construction. the allegation that the permission was granted for construction of the hotel in the residential area for which the n. a. permission was there is contrary to the record because no such permission has been granted and yet it has been taken as if such permission had been granted by the petitioner. if at all there is any controversy that there was another map with regard to the construction of the hotel also, that would not show that the permission was also granted for the purpose of construction of hotel. the parties may produce any map but unless and until the permission is granted for such purpose, no misconduct can be found to have been proved against the petitioner on that basis, more particularly, when it is established from the record and the copy of the fir c.r. no. 72 of 1997 dated 4th september, 1997 lodged by the circle inspector of police, taluka district junagadh, namely, dinkar natvarlal thakkar against naliniben mahendrakumar rajani of timbawadi for the offences under sections 465, 468, 471 etc. if the party who had applied for permission has committed any breach to use the permission granted on the map of the construction of residence and have used it to their advantage with reference to the other map which was for the hotel, the petitioner could not be held responsible for that matter. the petitioner has not even been alleged to be an a better in this fir which was lodged by the taluka panchayat itself. it is, therefore, clear that the order as has been passed by the district development officer proceeds on the basis of a wrong directed against the petitioner for which the basic facts were wanting to constitute a case of misconduct against him. the replies to the notices which have been filed by the petitioner do not appear to have been dealt with and this impugned order as was passed by the district development officer removing the petitioner from the office of the sarpanch has been passed without an objective application of mind and without considering the case with which the petitioner had given in the reply to the notices and the whole purpose of calling upon the petitioner to file his reply has been defeated. even otherwise, the allegations as have been levelled do not appear to have been taken to their logical end and the mere allegation of suspicion and that too based on the circumstances cannot be taken to be the proof of the allegation against the petitioner. in such matters, when the officers charged with the duties under the panchayats act exercise such statutory powers against the elected office bearers as a part of the local authorities like the panchayats when they are elected for a definite tenure, the officers cannot threat such elected officers as if they are passing the impugned orders in relation to the employees and unless and until there is cogent proof of clear misconduct or the persistent default in performance of the duties or the abuse of powers as contemplated under section 57 of the act, the drastic action of removal should not be resorted to. such powers of removal should be exercised by the functionaries under the act with great care and caution and that too sparingly, on the basis of the replies to the notices as filed by the petitioner and the permission dated 2-8-1997 as had been granted by the petitioner, the copy of which has been placed on record as annex-ure n, no such action was warranted. the position with regard to the other allegation is also the same inasmuch as the petitioner had granted permission only with regard to plot no. 1 of survey no. 64 as against the plot no. 47 as per the allegations and these allegations also appear to be factually incorrect and contrary to the record.5. even the addl. development commissioner has not considered these aspects and has not sifted the petitioner's replies and the grounds raised in the memo of appeal against the grounds contained in the order as was passed by the district development officer and without an objective appraisal of the grievances raised by the petitioner in the appeal before him, the appeal has been rejected by treating the mere allegations to be proved as the proof of allegations.6. for the foregoing reasons, the impugned order dated 21-8-1998 passed by the district development officer removing the petitioner from the office of the sarpanch of gram panchayat, timbawadi, taluka district junagadh and the order dated 8th october, 1998 passed by the addl. development commissioner rejecting the appeal and up-holding the order passed by the district development officer are hereby quashed and set aside and as a consequence thereof, the petitioner stands relegated to the position which he was holding prior to the passing of the impugned order dated 21-8-1998 as passed by the district development officer, junagadh. in the result, the petitioner continues to be the sarpanch of the said gram panchayat as if the impugned orders had never been passed against him. the special civil application no. 8744/98 is accordingly allowed and the rule is made absolute. no order as to costs.7. the special civil application no. 5546 of 1999 is directed against the order dated 19th april, 1999 passed by the government in exercise of powers under section 278 of the gujarat panchayats act. as has already been stated while narrating the facts of this case, this order was passed by the government after removal of the sarpanch as the up-sarpanch did not take charge of the sarpanch, and on that basis, the up-sarpanch had also been removed. the government, therefore, resorted to the powers under section 278 of the act, i.e. with regard to removal of difficulties and thereby appointed shri p. m. trivedi, asstt. taluka development officer, junagadh to perform the powers, functions and duties of the said panchayat until the sarpanch and up-sarpanch are elected under the said act. special civil application no. 8744 of 1998 has been allowed as above and the petitioner therein stands relegated to the position of the elected sarpanch and his tenure is for a period of five years from 1996 which is to expire in 2001 and therefore, this order deserves to be withdrawn by the government itself as a natural consequence of the success of special civil application no. 8744/98.8. whether the government decides to withdraw the said order dated 19th april, 1999 in view of the order of this court whereby special civil application no. 8744 of 1998 has been allowed or not, since the order has been challenged by the petitioner and 'in order to avoid any further complications, i have considered the only question involved in this case as to whether even in such a situation, the government could have resorted to the powers under section 278 of the gujarat panchayats act, section 278 of the act is reproduced as under :'278. removal of the difficulties.-- if any difficulty arises in giving effect to the provisions of this act or any schedule the state government may, as occasion requires, by order do anything which appears to it to be necessary for the purpose of removing the difficulty.'this section has been included in chapter 16 i.e. miscellaneous provisions. it is with regard to the removal of difficulties and the section says that if any difficulty arises in giving effect to the provisions of this act, the government may as an occasion requires, by order do anything which appears to it to be necessary for the purpose of removing the difficulty. in this regard, the reference may straightway be made to the provisions of section 55(3), section 59(2) read with the provisions of section 55(4) and clause (v) of sub-section (2) thereof, as has been recorded by the division bench while deciding the letters patent appeal no. 269 of 1999. sections 55 and 59 are reproduced as under :'55. (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 village panchayat shall vest in the sarpanch thereof who shall be directly responsible for the due fulfilment of the duties imposed upon the panchayat by or under this act. in the absence of the sarpanch his power and duties shall, save as may be otherwise prescribed by rules, be exercised and performed by the up-sarpanch.(2) without prejudice to the generality of the foregoing provision :-- (a) the sarpanch shall-- (i) preside over and regulate the meeting of the panchayat;(ii) exercise supervision and control over the acts done and actions taken by all officers and servants of the panchayats;(iii) incur contingent expenditure up to fifty rupees at any one occasion;(iv) operate on the fund of the panchayat including authorisation of payment, issue of cheques and refunds;(v) be responsible for the safe custody of the fund of the panchayat;(vi) cause to prepared all statements and reports required by or under this act;(vii) exercise such other powers and discharge such other functions as may be conferred or imposed upon him by this act or rules made thereunder. (b) the up-sarpanch shall (i) in the absence of the sarpanch preside over and regulate the meetings of the panchayat;(ii) exercise such of the powers and perform such of the duties of the sarpanch as the sarpanch may, from time to time delegate to him;(iii) in case the sarpanch has been continuously absent from the village for more than fifteen days or is incapacitated to exercise the powers and perform the duties of the sarpanch. (3) in the absence of both the sarpanch and the up-sarpanch, every meeting of the panchayat shall be presided over by such one of the members present as may be chosen by the meeting to be chairman for the occasion.(4) notwithstanding anything contained in clause (iv) of sub-section (2), no money shall be withdrawn from the fund of the panchayat except with the signature of the sarpanch and any one of the two other members of the panchayat authorised in that behalf of the panchayat.''59. (1) the district development officer may suspend from office the sarpanch or the up-sarpanch of a village panchayat against whom any criminal proceedings in respect of an offence involving moral turpitude have been instituted or who has been detained in a prison during trial for any offence or who is undergoing such sentence of imprisonment as would not disqualify him from continuing as a member of the panchayat under section 30 or who has been detained under any law relating to preventive detention for the time being in force.(2) where any sarpanch or up-sarpanch, has been suspended under sub-section (1) another member of the village panchayat shall, subject to the conditions to which the election of the sarpanch or up-sarpanch, so suspended was subject, be elected to perform all the duties and exercise all the powers of a sarpanch or up-sarpanch, during the period for which such suspension continues.(3) an appeal shall lie against an order passed under sub-section (1) to the state government, such appeal shall be made within a period of thirty days from the date of the order.'from a reading of these provisions, it will be clear that the legislature itself has already taken care of the contingency wherein the sarpanch and up-sarpanch are not available and therefore, there was no question of any difficulty for removal of which the government had to exercise the powers under section 278 of the gujarat panchayats act, in the facts and circumstances of this case. so far the functioning of the panchayat is concerned, enough care has been taken by the legislature itself by making appropriate provisions in sections 55 and 59(2) as has been reproduced above and there was no question of exercise of any powers under section 278 in the name of removal of difficulties so as to appoint a government officer for discharging the functions of the said panchayat which could be very well discharged by the remaining members of the panchayat even if the sarpanch and up-sarpanch were not treated to be available for the functioning of the panchayat by the government. it is therefore, a clear case of an arbitrary exercise of the powers under section 278 of the act as there was no difficulty for the functioning of the panchayat and the panchayat could very well function even in absence of sarpanch and up-sarpanch in accordance with the provisions to which the reference had been made by the division bench while deciding the letters patent appeal on 29th april, 1999 to which a detailed reference has been made hereinabove. had the author of the impugned order dated 19th april, 1998 gone through the relevant provisions as contained in the panchayat act itself, he could not have found it necessary to pass the impugned order in the name of removing difficulties and in any case, no such situation was available before the author of the impugned order so as to exercise the powers under section 278 of the act and ex facie it is found to be a case of arbitrary j action so as to take resort to section 278 in the name of removal of difficulties whereas no difficulty in fact could be said to be existent, in the eye of law.9. for the foregoing reasons, the impugned order dated 19th april, 1999 cannot be sustained. the same is hereby quashed and set aside and the assistant taluka development officer, taluka district junagadh who was appointed to perform the powers and carry on the functions and the duties of the said panchayat shall cease to have any authority with regard to the affairs of the said gram panchayat on the basis of the order dated 19th april. 1999 and there shall be no impediment against the sarpanch harsukh-bhai gordhanbhai hadvani to continue to function as the sarpanch of the said gram panchayat. this special civil application no. 5546/99 is accordingly allowed and the rule is made absolute. no order as to costs.10. in view of the orders passed in the main special civil applications nos. 8744 of 1998 and 5546 of 1999 as above, the prayer as has been made in the civil application no. 7349 of 1999 by the district development officer to clarify the order dated 4-2-1999 passed in special civil application no. 8744 of 1998 with regard to the order of status-quo as also the prayer that the assistant taluka development officer, taluka district junagadh be permitted to function as custodian/administrator of the said gram panchayat becomes infructuous and no orders are required to be passed in this civil application. the same is therefore rejected and stands disposed of accordingly.11. in the result--(1) special civil application no. 8744/98 is allowed as per the operative part in para 6 of this judgment.(2) special civil application no. 5546/99 is allowed as per the operative part in para 9 of this judgment.(3) civil application no. 7349/99 in special civil application no, 8744/98 is disposed of as per the operative part in para 10of this judgment.

Judgment:
ORDER

M.R. Calla, J.

1. Special Civil Application No. 546/99 and Civil Application No. 7349/99 in Special Civil Application No. 8744/98 were listed today in the board. It was submitted on behalf of the parties that the Civil Application No. 7349/99 has been filed in the main Special Civil Application No. 8744/98, which is already on the board of final hearing at Sr. No. 35 and Rule has already been issued in Special Civil Application No. 5546/ 99 on 29-7-1999 and, therefore, all these matters may be taken up together. I find that in Special Civil Application No. 8744/98 the Court has passed an order on 4-2-99 that the matter may be listed for final hearing on 23-2-99. In the facts and circumstances of this case and on the request of both the sides, these matters are taken up for final hearing right today.

Facts relating to Special Civil Application No. 8744/98-

The petitioner herein has come with the case that he was elected to the office of the Sarpanch of Timbawadi Gram Panchayat, Timbawadi Taluka and District Junagadh in the year 1996 for a term of 5 years and that this term of the petitioner is the second consecutive term for which he has been elected as a Sarpanch. While the petitioner was so working as Sarpanch he was subjected to notice dt. 2-8-97 followed by another notice dt. 2-9-97, the copies of which have been annexed as Annexures 'C' and 'D' at page 48-49 and 53-55 with the main petition. In the notice dt. 2-8-97 after narrating the allegations, the petitioner was called upon to show cause as to why the action under Section 57(1) of the Gujarat Panchayats Act may not be taken against him. The other notice dt. 2-9-97 is directly a notice purporting to have been issued under Section 57 and, therefore, it is found that both these notices dt. 2-8-97 and 2-9-97 are the notices for action under Section 57 of the Gujarat Panchayats Act against the petitioner for the allegations as set out therein. The petitioner filed reply dt. 8-8-97 to the notice dt. 2-8-97 and sent a letter, copy of which has been annexed as Annexure 'E' with the petition and thereby he demanded the copies of the report and three other documents mentioned therein before filing the reply to the notice dt. 2-8-97. The D.D.O., Junagadh sent the reply dt. 12-9-97 that the report and the copies of the orders, which were asked for by the petitioner had no relevance and the demand was futile. The petitioner was called upon to file the reply before 22-9-97 and was told that he may remain present on 22-9-97.

23rd August. 1999:

Against the aforesaid notices dated 2-8-1997 and 2-9-1997, a Civil Suit No. 497 of 1998 was filed before the Civil Judge (Senior Division) with an injunction application, but the injunction was not granted by the Civil Court. In the appeal preferred before the District Court also, the order passed by the trial Court refusing injunction was upheld. The replies dated 8th August, 1997 and 28th July, 1998 to the notices were filed. The District Development Officer then passed an order on 21-8-1998 removing the petitioner from the office of Sarpanch of Gram Panchayat, Timbawadi under Section 57(1) of the Gujarat Panchayats Act. In view of the order dated 21-8-1998 passed by the District Development Officer, the Civil Suit filed against the two notices virtually became infructuous. Against this order dated 21-8-1998 passed by the District Development Officer, Junagadh, the petitioner preferred an Appeal No. 105 of 1998 before the Additional Development Commissioner, In the Appeal No. 105 of 1998, the Addl. Development Commissioner granted an order of status-quo. The said order of status-quo remained operative throughout the pendency of the appeal but the appeal itself was decided against the petitioner by the Addl. Development Commissioner by his order dated 8th October, 1998 and the order passed by the District Development Officer was upheld.

Aggrieved from this order dated 8th October, 1998 passed by the Addl. Development Commissioner read with the order of the District Development Officer dated 21-8-1998, the petitioner preferred the present Special Civil Application on 12th October, 1998 and on 13th October, 1998 when the matter came up before the Court, while issuing notice returnable on 10th November, 1998, the order of status-quo as on the date on which the writ of this order is received by the concerned authorities of the respondents was directed to be maintained. This Special Civil Application was then admitted on 4th February, 1999 and the same was also directed to be listed for final hearing on 23rd February, 1999 and the interim order as was granted earlier was made absolute till the final decision of this Special Civil Application. Against this order dated 4th February, 1999, a Letters Patent Appeal No. 269 of 1999 was preferred by the District Development Officer along with Civil Application No. 1875 of 1999. The petitioner claimed that he was continuing as a Sarpanch on the strength of the order of status-quo whereas the respondents contended that he had ceased to hold the office from 21st August, 1998 and therefore, the petitioner had no authority to continue as Sarpanch. It has been given out before this Court that as against it, the petitioner claimed before the Division Bench in the Letters Patent Appeal that he had filed an affidavit dated 1 -4-1999 in the Civil Application No. 1875 of 1999 in the Letters Patent Appeal that the respondents themselves had been treating him as Sarpanch and had entered into correspondence with him as such. On behalf of the respondents, it was contended in the Letters Patent Appeal that after the removal of the Sarpanch, the UP-Sarpanch namely, Laxmidas was called upon to function as Sarpanch and take over the charge of Sarpanch, but the Up-Sarpanch did not take over charge for which an explanation is given on behalf of the petitioner that he could not have taken over charge in view of the order of status-quo. Later on, the said Up-Sarpanch Laxmidas was also removed from the office of the Up Sarpanch by the order dated 7-12-1998 passed by the District Development Officer. Against this order dated 7-12-1998, the said Up-Sarpanch preferred an appeal before the Addl. Development Commissioner and in that appeal also an order of status-quo was granted in favour of the Up-Sarpanch and it is given out by the learned Counsel for the petitioner that the said appeal is still pending. It is given out that the only ground on which the Up-Sarpanch was removed was that he did not comply with the order of taking over the charge of Sarpanch. The Division Bench while deciding the Letters Patent Appeal No. 269 of 1999 on 28th April, 1999 made reference to Sections 55(3), 55(4) and Clause (iv) of Sub-section (2) thereof and Sections 59(2) and 51 of the Gujarat Panchayats Act and observed that ample provisions had been made in the Art to meet with the contingencies which may arise on account of suspension or removal of the Sarpanch and whereas it was brought to the notice of the Division Bench that an officer had already been arranged to discharge the function of the panchayat and the said fact that not been brought to the notice of the learned single Judge who passed the order on 4th February, 1999, the proper course available to the appellant, i.e. the District Development Officer was to approach the learned single Judge and apprise him of these facts and pray that the order which is already passed by the learned single Judge, if necessary, be varied and without prejudice to such liberty the Letters Patent Appeal was rejected. An affidavit-in-reply dated 5th November, 1998 as tiled on behalf of the respondent No. 3 is on record to which an affidavit in rejoinder dated 18th January, 1999 has been filed. Whereas the Division Bench while deciding the Letters Patent Appeal No. 269 of 1999, has referred to the Special Civil Application No. 8744 of 1998 and had rejected the Letters Patent Appeal on 28th April, 1999 without prejudice to the liberty to the respondent District Development Officer to approach the learned single Judge to vary the order dated 4th February, . 1999 If necessary, the respondents have chosen to file the Civil Application No. 7349 of 1999 with the prayer to recall or modify the order dated 4th February, 1999 by making a clarification that the officer namely. Assistant Taluka Development Officer, Taluka Jungadh be permitted to function as custodian or administrator of Timbawadi Gram Panchayat. This application dated 17th July, 1999 was filed in this Court on 22nd July, 1999.

Facts relating to Special Civil Application No. 5546/99 :

2. This Special Civil Application was filed on 27th July, 1999 by the present petitioner while the earlier petition filed by him being Special Civil Application No. 8744 of 1999 was pending before the Court. The filing of the present Special Civil Application was necessitated because the Up-Sarpanch who did not take charge had been removed and view of the order of status-quo as was passed by the Addl. Development Commissioner In favour of the Up-Sarpanch granted on 8th December, 1998 against the removal order of 7-12-1998 was operative, the order dated 19th April, 1999 was passed by the Government in purported exercise of powers under Section 278 of the Gujarat Panchayats Act, and one Shri P. M. Trivedl, Assistant Taluka Development Officer, was appointed to perform the powers, functions and duties of the said Panchayat until the Sarpanch and Up-Sarpanch are elected under the said Act. It is this order which is the subject-matter of challenge in this Special Civil Application for quashing and setting aside the aforesaid order dated 19th April, 1999.

3. Since the grievance raised in the two Special Civil Applications Nos. 8744 of 1998 and 5546 of 1999 and also the grievance raised In Civil Application No. 7349 of 1999 are all inter-connected matters relating to the same Panchayat and arising on the basis of the orders passed in relation to the Sarpanch and Up-Sarpanch and appointment of a Government Officer to carry on the functioning of the Panchayat as passed by the Government on 19th April, 1999, it was considered proper to decide all these three matters by this common judgment and order. The concerned Up-Sarpanch has moved two Civil Applications, i.e. Civil Application No. 9065 of 1999 in Special Civil Application No. 8744 of 1998 and Civil Application No. 9067 of 1999 in Special Civil Application No. 5546 of 1999 for being joined as party in the respective petitions and both these Civil Applications have been decided on 17th August, 1999 and on that basis the concerned Up-Sarpanch has also been heard as party in these matters.

4. So far as the challenge to the order passed against the petitioner Sarpanch Harsukhbhai Hadvani is concerned, the same has been challenged by the petitioner on grounds more than one including the ground that even on the basis of the allegations which had been levelled against the petitioner, there was no case of misconduct and there was nothing on record to show that the petitioner had been guilty of misconduct in discharging his duties or of any disgraceful conduct or abuse of power or that he had made persistent default in performance of duties and functions under the Act and it has been submitted that apart from the fact that the allegations are factually incorrect on the basis of which the order has been passed under Section 257 of the Act, the same has been passed without application of mind and that It also suffers from an error apparent on the face of the record inasmuch as the petitioner had never granted permission to any party for the purpose of construction of a hotel and yet it has been treated as if such a permission had been granted by the petitioner. Learned Counsel for the petitioner made a pointed reference to the document dated 19th January, 1996 i.e. Annexure L and submitted that the permission granted to Naliniben Mahendrakumar Rajani nowhere refers to the construction of a hotel and it was a permission only for construction of a residential building. Said Naliniben already held the permission for non-agricultural use of this land. It has not been disputed even by Mr. Oza appearing on behalf of the District Development Officer that the Sarpanch is the competent authority for the purpose of granting permission for construction. The allegation that the permission was granted for construction of the hotel in the residential area for which the N. A. permission was there is contrary to the record because no such permission has been granted and yet it has been taken as if such permission had been granted by the petitioner. If at all there is any controversy that there was another map with regard to the construction of the hotel also, that would not show that the permission was also granted for the purpose of construction of hotel. The parties may produce any map but unless and until the permission is granted for such purpose, no misconduct can be found to have been proved against the petitioner on that basis, more particularly, when it is established from the record and the copy of the FIR C.R. No. 72 of 1997 dated 4th September, 1997 lodged by the Circle Inspector of Police, Taluka District Junagadh, namely, Dinkar Natvarlal Thakkar against Naliniben Mahendrakumar Rajani of Timbawadi for the offences under Sections 465, 468, 471 etc. If the party who had applied for permission has committed any breach to use the permission granted on the map of the construction of residence and have used it to their advantage with reference to the other map which was for the hotel, the petitioner could not be held responsible for that matter. The petitioner has not even been alleged to be an a better in this FIR which was lodged by the Taluka Panchayat itself. It is, therefore, clear that the order as has been passed by the District Development Officer proceeds on the basis of a wrong directed against the petitioner for which the basic facts were wanting to constitute a case of misconduct against him. The replies to the notices which have been filed by the petitioner do not appear to have been dealt with and this impugned order as was passed by the District Development Officer removing the petitioner from the office of the Sarpanch has been passed without an objective application of mind and without considering the case with which the petitioner had given in the reply to the notices and the whole purpose of calling upon the petitioner to file his reply has been defeated. Even otherwise, the allegations as have been levelled do not appear to have been taken to their logical end and the mere allegation of suspicion and that too based on the circumstances cannot be taken to be the proof of the allegation against the petitioner. In such matters, when the officers charged with the duties under the Panchayats Act exercise such statutory powers against the elected office bearers as a part of the local authorities like the Panchayats when they are elected for a definite tenure, the officers cannot threat such elected officers as if they are passing the impugned orders in relation to the employees and unless and until there is cogent proof of clear misconduct or the persistent default in performance of the duties or the abuse of powers as contemplated under Section 57 of the Act, the drastic action of removal should not be resorted to. Such powers of removal should be exercised by the functionaries under the Act with great care and caution and that too sparingly, On the basis of the replies to the notices as filed by the petitioner and the permission dated 2-8-1997 as had been granted by the petitioner, the copy of which has been placed on record as Annex-ure N, no such action was warranted. The position with regard to the other allegation is also the same inasmuch as the petitioner had granted permission only with regard to Plot No. 1 of Survey No. 64 as against the Plot No. 47 as per the allegations and these allegations also appear to be factually incorrect and contrary to the record.

5. Even the Addl. Development Commissioner has not considered these aspects and has not sifted the petitioner's replies and the grounds raised in the memo of appeal against the grounds contained in the order as was passed by the District Development Officer and without an objective appraisal of the grievances raised by the petitioner in the appeal before him, the appeal has been rejected by treating the mere allegations to be proved as the proof of allegations.

6. For the foregoing reasons, the impugned order dated 21-8-1998 passed by the District Development Officer removing the petitioner from the office of the Sarpanch of Gram Panchayat, Timbawadi, Taluka District Junagadh and the order dated 8th October, 1998 passed by the Addl. Development Commissioner rejecting the appeal and up-holding the order passed by the District Development Officer are hereby quashed and set aside and as a consequence thereof, the petitioner stands relegated to the position which he was holding prior to the passing of the impugned order dated 21-8-1998 as passed by the District Development Officer, Junagadh. In the result, the petitioner continues to be the Sarpanch of the said Gram Panchayat as if the impugned orders had never been passed against him. The Special Civil Application No. 8744/98 is accordingly allowed and the Rule is made absolute. No order as to costs.

7. The Special Civil Application No. 5546 of 1999 is directed against the order dated 19th April, 1999 passed by the Government in exercise of powers under Section 278 of the Gujarat Panchayats Act. As has already been stated while narrating the facts of this case, this order was passed by the Government after removal of the Sarpanch as the Up-Sarpanch did not take charge of the Sarpanch, and on that basis, the Up-Sarpanch had also been removed. The Government, therefore, resorted to the powers under Section 278 of the Act, i.e. with regard to removal of difficulties and thereby appointed Shri P. M. Trivedi, Asstt. Taluka Development Officer, Junagadh to perform the powers, functions and duties of the said Panchayat until the Sarpanch and Up-Sarpanch are elected under the said Act. Special Civil Application No. 8744 of 1998 has been allowed as above and the petitioner therein stands relegated to the position of the elected Sarpanch and his tenure is for a period of five years from 1996 which is to expire in 2001 and therefore, this order deserves to be withdrawn by the Government itself as a natural consequence of the success of Special Civil Application No. 8744/98.

8. Whether the Government decides to withdraw the said order dated 19th April, 1999 in view of the order of this Court whereby Special Civil Application No. 8744 of 1998 has been allowed or not, since the order has been challenged by the petitioner and 'in order to avoid any further complications, I have considered the only question involved in this case as to whether even in such a situation, the Government could have resorted to the powers under Section 278 of the Gujarat Panchayats Act, Section 278 of the Act is reproduced as under :

'278. Removal of the Difficulties.-- If any difficulty arises in giving effect to the provisions of this Act or any Schedule the State Government may, as occasion requires, by order do anything which appears to it to be necessary for the purpose of removing the difficulty.'

This Section has been included in Chapter 16 i.e. Miscellaneous provisions. It is with regard to the removal of difficulties and the Section says that if any difficulty arises in giving effect to the provisions of this Act, the Government may as an occasion requires, by order do anything which appears to it to be necessary for the purpose of removing the difficulty. In this regard, the reference may straightway be made to the provisions of Section 55(3), Section 59(2) read with the provisions of Section 55(4) and Clause (v) of Sub-section (2) thereof, as has been recorded by the Division Bench while deciding the Letters Patent Appeal No. 269 of 1999. Sections 55 and 59 are reproduced as under :

'55. (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 village panchayat shall vest in the Sarpanch thereof who shall be directly responsible for the due fulfilment of the duties imposed upon the panchayat by or under this act. In the absence of the Sarpanch his power and duties shall, save as may be otherwise prescribed by rules, be exercised and performed by the Up-Sarpanch.

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

(a) the Sarpanch shall--

(i) preside over and regulate the meeting of the panchayat;

(ii) exercise supervision and control over the acts done and actions taken by all officers and servants of the panchayats;

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

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

(v) be responsible for the safe custody of the fund of the panchayat;

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

(vii) exercise such other powers and discharge such other functions as may be conferred or imposed upon him by this Act or rules made thereunder.

(b) The Up-Sarpanch shall

(i) in the absence of the Sarpanch preside over and regulate the meetings of the panchayat;

(ii) exercise such of the powers and perform such of the duties of the Sarpanch as the Sarpanch may, from time to time delegate to him;

(iii) in case the Sarpanch has been continuously absent from the village for more than fifteen days or is incapacitated to exercise the powers and perform the duties of the Sarpanch.

(3) In the absence of both the Sarpanch and the Up-Sarpanch, every meeting of the panchayat shall be presided over by such one of the members present as may be chosen by the meeting to be Chairman for the occasion.

(4) Notwithstanding anything contained in Clause (iv) of Sub-section (2), no money shall be withdrawn from the fund of the panchayat except with the signature of the Sarpanch and any one of the two other members of the panchayat authorised in that behalf of the panchayat.'

'59. (1) The District Development Officer may suspend from office the Sarpanch or the Up-Sarpanch of a village panchayat against whom any criminal proceedings in respect of an offence involving moral turpitude have been instituted or who has been detained in a prison during trial for any offence or who is undergoing such sentence of imprisonment as would not disqualify him from continuing as a member of the panchayat under Section 30 or who has been detained under any law relating to preventive detention for the time being in force.

(2) Where any Sarpanch or Up-Sarpanch, has been suspended under Sub-section (1) another member of the village panchayat shall, subject to the conditions to which the election of the Sarpanch or Up-Sarpanch, so suspended was subject, be elected to perform all the duties and exercise all the powers of a Sarpanch or Up-Sarpanch, during the period for which such suspension continues.

(3) An appeal shall lie against an order passed under Sub-section (1) to the State Government, such appeal shall be made within a period of thirty days from the date of the order.'

From a reading of these provisions, it will be clear that the Legislature itself has already taken care of the contingency wherein the Sarpanch and Up-Sarpanch are not available and therefore, there was no question of any difficulty for removal of which the Government had to exercise the powers under Section 278 of the Gujarat Panchayats Act, in the facts and circumstances of this case. So far the functioning of the Panchayat is concerned, enough care has been taken by the Legislature Itself by making appropriate provisions in Sections 55 and 59(2) as has been reproduced above and there was no question of exercise of any powers under Section 278 in the name of removal of difficulties so as to appoint a Government Officer for discharging the functions of the said Panchayat which could be very well discharged by the remaining members of the Panchayat even if the Sarpanch and Up-Sarpanch were not treated to be available for the functioning of the Panchayat by the Government. It is therefore, a clear case of an arbitrary exercise of the powers under Section 278 of the Act as there was no difficulty for the functioning of the Panchayat and the Panchayat could very well function even in absence of Sarpanch and Up-Sarpanch in accordance with the provisions to which the reference had been made by the Division Bench while deciding the Letters Patent Appeal on 29th April, 1999 to which a detailed reference has been made hereinabove. Had the author of the impugned order dated 19th April, 1998 gone through the relevant provisions as contained in the Panchayat Act itself, he could not have found it necessary to pass the impugned order in the name of removing difficulties and in any case, no such situation was available before the author of the impugned order so as to exercise the powers under Section 278 of the Act and ex facie it is found to be a case of arbitrary J action so as to take resort to Section 278 in the name of removal of difficulties whereas no difficulty in fact could be said to be existent, in the eye of law.

9. For the foregoing reasons, the impugned order dated 19th April, 1999 cannot be sustained. The same is hereby quashed and set aside and the Assistant Taluka Development Officer, Taluka District Junagadh who was appointed to perform the powers and carry on the functions and the duties of the said Panchayat shall cease to have any authority with regard to the affairs of the said Gram Panchayat on the basis of the order dated 19th April. 1999 and there shall be no impediment against the Sarpanch Harsukh-bhai Gordhanbhai Hadvani to continue to function as the Sarpanch of the said Gram Panchayat. This Special Civil Application No. 5546/99 is accordingly allowed and the Rule is made absolute. No order as to costs.

10. In view of the orders passed in the main Special Civil Applications Nos. 8744 of 1998 and 5546 of 1999 as above, the prayer as has been made in the Civil Application No. 7349 of 1999 by the District Development Officer to clarify the order dated 4-2-1999 passed in Special Civil Application No. 8744 of 1998 with regard to the order of status-quo as also the prayer that the Assistant Taluka Development Officer, Taluka District Junagadh be permitted to function as custodian/administrator of the said Gram Panchayat becomes infructuous and no orders are required to be passed in this Civil Application. The same is therefore rejected and stands disposed of accordingly.

11. In the result--

(1) Special Civil Application No. 8744/98 is allowed as per the operative part in para 6 of this judgment.

(2) Special Civil Application No. 5546/99 is allowed as per the operative part in para 9 of this judgment.

(3) Civil Application No. 7349/99 in Special Civil Application No, 8744/98 is disposed of as per the operative part in para 10of this judgment.