Dipakbhai Mohanbhai Patel Vs. A.S. Patel or His Successor in the Office and ors. - Court Judgment

Excerpt:
- - 4. aggrieved by the above orders, the sarpanch as well as the appellants preferred appeals under section 57(3) of the act before the appellate authority. as confirmed by the appellate authority, the sarpanch as well as the present appellants, 13 in number, preferred special civil applications before the learned single judge. the agenda as well as resolutions have been duly signed by the members. therefore, if the sarpanch did not exercise the executive powers of the panchayat appropriately and acted in defiance of the directives of the high court to stop haphazard growth in the area of bopal gram panchayat, the members of the gram panchayat were expected to call upon the sarpanch to exercise executive powers under section 55 of the act appropriately and upon failure to do so, to move a motion of no-confidence. provided further that the state government may subject to the preceding proviso from time to time after making such inquiry as it may consider necessary by an order published in the official gazette extend the period of supersession of such panchayat until such date as may be specified in the order or by like order curtail the period of supersession. 16. the following table clearly brings out the overlapping of the powers under the two provisions: mangukia placed strong reliance on two decisions of a learned single judge of this court in laladhar pragji v. it was further observed that the panchayat collectively takes decision for discharge of its duties and its failure to discharge the duty cannot be attributed to a single member. since, the question was only of failure of duty cast upon the panchayat, the proper course in such case would be to take action against the panchayat as contemplated by section 297 of the old act corresponding to section 253 of the present act, i. (i) the powers under sections 57 as well as 253 can be exercised in case of abuse of powers as well as in case of persistent defaults to perform the functions and to discharge the duties under the act. it is perfectly open for the court, exercising this flexible power, to pass such order as public interest dictates and equity projects: (emphasis supplied) 25. after considering all the relevant facts and circumstances of the case and the statutory provisions, even while holding that the matter was more appropriate for exercise of the powers under section 253(1) of the act insofar as the bopal gram panchayat had failed to take action for removal of unauthorized constructions and not under section 57(1) of the act, this court is not inclined to exercise the extraordinary discretionary prerogative writ jurisdiction under article 226 of the constitution to restore the appellants back to their office as members of the bopal gram panchayat as elections have already been held in the meantime on 25-1-2009 for the office of sarpanch as well as all the 26 seats of members of the gram panchayat including the 13 seats previously held by the present appellants. however, we are not much satisfied with either the submissions of mr. champaneri nor with the contents of affidavit and it clearly appears to us that for the present some brake is required to be applied to the granting of n. 29.2. after considering the various material provided to the court by the parties as well as the material collected by the court, various directions came to be issued. mangukiya, learned advocate for the appellants submitted that individual notices under section 57(1) of the act were issued to all 27 members of the panchayat as well as the sarpanch and that most of the grounds alleged in the show-cause notice are addressed to the sarpanch. it is also contended that the impugned order also suffers from the vice of failure to adjudicate inasmuch as the district development officer has recorded the submissions made on behalf of the appellants but has not dealt with the same. that when the ingredients of section 57 are satisfied in case of each individual member, action can simultaneously be taken against each of them even if the same results in removal of the entire body. that in the facts of the present case the district development officer has issued individual notices to each of the members and has passed separate orders of removal, which was well within the scope of his authority. hence, the ingredients of section 57 of the act were duly satisfied and the district development officer had rightly taken action under the same. air 1974 sc 2233 wherein a notification issued by the state government in exercise of power under section 303a of the gujarat panchayats act, 1961 was called into question on the ground that the condition precedent for exercise of such power is not satisfied. 14128 of 2005 had been filed in the gujarat high court in connection with disposal of rain water as well as garbage in mouje bopal gram panchayat in 2005. the judgment in the said case has been rendered on 15-2-2006 and with a view to implement the said judgment the revenue department had issued instructions that from 1-5-2006 till further orders no non-agricultural permission should be granted, and accordingly, the district panchayat had not granted any non-agricultural permission. in view of the provisions of rule 101 of the gujarat revenue rules as well as the land revenue code, prior to granting building permission, the gram panchayat should send a proposal to the competent authority in respect of the breach of condition. the gram panchayat, before granting building permission, is required to verify as to whether the conditions of non-agricultural permission as well as the plan approved by the town planner are satisfied, after which the building permission can be granted. this being the duty as well as function of the member, he has displayed negligence and lack of devotion towards his duty and misconducted himself in the discharge of his duties under the provisions of the gujarat panchayat act. it may be pertinent to note that the said letter is addressed only to the talati-cum-mantri and no copy of the said letter is endorsed to the gram panchayat. however, after you took charge as sarpanch, you have dishonoured the directions of the honourable gujarat high court as well as the instructions of the revenue department and have granted rajachitthi on 8-3-2007 and commenced the construction, which shows your misconduct, negligence and lack of devotion towards your duties. moreover, a perusal of the orders passed by the high court as well as the state government show that what was prohibited was grant of non-agricultural permission and not building permission. under the provisions of the bombay land revenue code, 1879 the power to grant as well as cancel non-agricultural permissions is vested in the collector or the district development officer, and nothing has been placed on record by the respondents to show as to why no action had been taken by the competent authority for more than a decade to cancel the non-agricultural permission granted earlier for breach of conditions. instead, for failure on the part of the executive in taking appropriate action at the relevant, the entire blame is sought to be laid at the door of a newly elected body. in such a situation, no bad intention or motive can be attributed to the appellants that despite being aware of the instructions, they had gone ahead and granted building permissions. in the opinion of this court, such deemed knowledge cannot be the basis for attributing bad intention on the part of the members so as to call for such drasticaction like removal from an elected post, that too with disqualification for a period of five years. however, you after taking charge as sarpanch have disobeyed the instructions of the gujarat high court as well as the instructions of the state government in its revenue department and have granted building permission on 16-4-2007 and permitted construction to commence which depicts your misconduct as well as negligence and lack of devotion towards discharge of duties. however, you after taking charge as sarpanch have disobeyed the instructions of the gujarat high court as well as the instructions of the state government in its revenue department and have granted building permission on 25-4-2007 and permitted construction to commence which depicts your misconduct as well as negligence and lack of devotion towards discharge of duties. however, you after taking charge as sarpanch have disobeyed the instructions of the gujarat high court as well as the instructions of the state government in its revenue department and have granted building permission on 2-5-2007 and permitted construction to commence which depicts your misconduct as well as negligence and lack of devotion towards discharge of duties. 3, 4 and 5 as well as upon verification of the record, this resolution does not appear to have been passed in the meeting on 16-4-2007. hence, this explanation can be partly accepted. in view of the provisions of rule 101 of the gujarat revenue rules as well as the land revenue code, prior to granting building permission, the gram panchayat should send a proposal to the competent authority in respect of the breach of condition. whereas the charge was in respect of passing resolutions granting building permission, the district development officer has held the appellants to be guilty of negligence and lack of devotion towards their duties as well as abuse of powers on the ground that in view of the provisions of section 104(4) of the act, it was the duty of the appellants to prevent unauthorized constructions; the findings recorded by the district development officer therefore, have no nexus to the charges levelled against the appellants, and accordingly, stand vitiated on account of non-application of mind as well as on the ground that the same are beyond the scope of the charges levelled in the show-cause notice. despite the aforesaid position, the district development officer has found each individual member to be guilty of negligence and lack of devotion towards his duties and abuse of powers as well as being persistently negligent in implementing the provisions of the act on the ground that the member has not drawn the attention of the higher authorities to the unauthorized constructions. (3) if at any time it appears to the state government or any officer authorised by the state government in this behalf, that a panchayat has made default in the performance of any duty and that the district panchayat has failed or neglected to take action under sub-section (1), the state government or the officer authorised, as the case may be, may take such action as could have been taken by the district panchayat under sub-section (1) and (2). (4) the district panchayat or the officer authorised, as the case may be, shall forthwith report to the state government every case occurring under this section and the state government may revise or modify any order made therein, and make in respect thereof, any other order which the district panchayat could have made. in the present case, though the district panchayat did order that the duties be performed, unfortunately the same were directed solely against the talati-cum-mantri, who appears to have failed to draw the attention of the members of the panchayat to the same. in case of failure of the gram panchayat to act as directed, it was the duty of the district panchayat to take necessary action as envisaged under sub-section (1) and (2) of section 252, and in case of failure of the district panchayat, the duty of the state government. it may also be pertinent to note that though the charge only speaks of negligence towards their duties, the appellants have been held to be guilty of displaying negligence and lack of devotion towards their duties as well as abuse of powers and persistent negligences in abiding by the provisions of the act. 8, it was the specific case of the petitioners that the instructions dated 1-5-2006 of the state government in its revenue department as well as the letter dated 16th march, 2007 were not placed before the gram panchayat for their perusal by the talati-cum-mantri, nor was the attention of the gram panchayat drawn to the same. 14128 of 2005 as well as in the context of the instructions issued by the state government in its revenue department, this office had vide letter no. msl/jmn/v/ 2430 to 37 of 2006 dated 8-6-2006 sent the same to the gram panchayat for compliance thereof, however, the gram panchayat by granting building permission at its whim in cases where non-agricultural permission had been granted earlier as well as by not preventing unauthorized constructions has committed breach of the provisions of the gujarat panchayats act, and it is proved from the aforesaid record that it has exhibited grave negligence, lack of devotion, abuse of powers and has persistently failed in complying with the provisions. 12282 of 2007. a perusal of the charge clearly shows that the same is regarding non-compliance with the directions issued vide communication dated 1-5-2006 addressed to the then sarpanch as well as the communication dated 16-3-2007 issued to the talati-cum-mantri. the district development officer has further recorded that despite the directions issued by this court in its judgment dated 15-2-2006 as well as the instructions dated 8-6-2006 of the state government in its revenue department, the gram panchayat had granted building permissions and had not taken any action of preventing unauthorized constructions, and thereby, exhibited grave negligence and lack of devotion in the discharge of its duties and abuse of powers, and had persistently failed in complying with the provisions of the act. thus, the finding is in respect of the failure of the gram panchayat and not the individual member of the panchayat. it may also be pertinent to note that vide the order dated 2nd august, 2007, the matter was adjourned to report steps taken against the builders, whereas a perusal of the order dated 9th august, 2007 clearly indicates that what was reported before the court was regarding the steps taken against the gram panchayat and not against the builders. 12282 of 2007 and that the newly elected gram panchayat has been made to bear the brunt of the omissions and commissions of the earlier body as well as the state authorities. it would certainly be a sad day for democracy, should the entire elected body connive in illegal activities so as to invite action under section 57 of the act against each of the members. the said order had been confirmed by the additional development commissioner, the learned single judge as well as by this bench in letters patent appeal. however, on facts as well as law, the sarpanch stands on a totally different footing than the members. provided further that the state government may subject to the preceding proviso from time to time after making such inquiry as it may consider necessary by an order published in the official gazette extend the period of supersession of such panchayat until such date as may be specified in the order or by like order curtail the period of supersession. nothing contained under sub-section (1) of section 253 can be interpreted as to mean that in a given case where case for dissolution or supersession of panchayat is made out, powers under section 57(1) of the said act cannot be exercised by the competent authority, if ingredients contained therein are satisfied. in the process, it has to follow the provisions of the gujarat gram and nagar panchayat taxes and fees rules, 1984. the consequence of failure of statutory duty cast upon a panchayat is provided for in section 297 of the said act and may entail dissolution or supersession of a panchayat, as provided therein. from failure of duty by a gram panchayat due to its not levying tax on buildings and lands under section 178(1a) of the said act which may entail action against the panchayat, it will be a far-fetched conclusion to hold that any loss has been caused of money or other property of the panchayat as a direct consequence of any misconduct or gross negligence on the part of a member of such panchayat. the panchayat collectively takes decisions for discharge of its duties and its failure to discharge the duty cannot be attributed to a single member. vadera 1996 (2) glr 349 as well as in the case of kanakbhai narsangbhai padhar v. unlike removal under section 57 of the act, there is no automatic disqualification qua the members of the panchayat which is dissolved or superseded under section 253. thus, insofar as collective default is concerned, the intention of the legislature is that the entire body should be either dissolved or superseded, leaving it to the electorate to decide as to whether they would like to re-elect the outgoing members, in case they choose to contest the elections held consequent to dissolution or supersession of the panchayat under section 253. thus, as a consequence of any order passed by the state government under section 253 of the act, the members would have to vacate their office, without any further disqualification and would be entitled to contest the elections held consequent to their vacating office. the elected representatives for the purpose of removal cannot be treated like government servants whose services are controlled at the pleasure of the president or governor under article 310 of the constitution. the officer charged with the power for removal under section 57 does not enjoy any such pleasure. if the elected persons are allowed to be removed on such jejune grounds, it would simply mean throttling down the principles of democracy in the local self-bodies and the elected representatives of the people like the petitioner would be made to lose their tenure at the altar of the arbitrary exercise of powers by the officers who have been charged with the duty under the act to at least address themselves to the real object behind such provision besides the grounds and procedure. in the facts of the present case, despite the fact that no case is made out for exercise of powers under section 57(1) of the act, the district development officer, under the guise of exercising powers under section 57(1) of the act, has in fact exercised powers which are vested in the state government under section 253 of the act, that too, in respect of defaults which do not call for such grave consequences like removal with disqualification, in the circumstances, such action on the part of the district development officer cannot be countenanced. the impugned orders dated 21st august, 2007 passed by the district development officer apart from being beyond the bounds of his authority, also suffer from the vice of being beyond the scope of the show-cause notice as well as non-application of mind, and as such cannot be sustained and are required to be quashed and set aside. consequently, the appellate orders dated 15th october, 2007 of the additional development commissioner as well as the common judgment and order dated 25/26-8-2008 passed by the learned single judge confirming the orders of the district development officer, are also required to be set aside.mohit s. shah, j.1. this group of 13 appeals, under clause 15 of the letters patent, is directed against the common judgment dated 25-8-2008 of the learned single judge in special civil application no. 30705 of 2007 and connected petitions challenging removal of the appellants from the office of members of bopal gram panchayat under section 57(1) of the gujarat panchayats act, 1993 (hereinafter referred to as 'the act').2. elections to bopal gram panchayat were held on 25-12-2006. one shantaben bachubhai patel was elected as sarpanch. the present appellants, 13 in number, along with 13 other persons were elected as members of bopal gram panchayat (hereinafter referred to as 'the gram panchayat'). the first meeting of the panchayat was held on 17-1-2007. by a show-cause notice dated 7-8-2007, the sarpanch and other members of the gram panchayat including the present appellants, were called upon to show cause why they should not be removed from the office of sarpanch and members of the gram panchayat under section 57(1) of the act for the acts of commission and omission, more particularly for granting building permission in a number of cases in collusion with owners of the lands concerned, which resulted into violation of the directions given by this court and the instructions given by the revenue department of the state government and also for not restraining or removing unauthorized construction by a large number of persons without building permission of the gram panchayat. the sarpanch submitted her reply. the appellants herein also submitted their separate reply dated 17-8-2007. the thrust of their defence was that the talati-cum-mantri had not performed his duties of bringing the instructions of the superior offices to the notice of the sarpanch and the members of the gram panchayat and that the responsibility of initiating action against unauthorized construction was that of the talati-cum-mantri. the appellants also took up the additional defence that the gram panchayat had not granted the alleged building permissions, but the agenda and resolutions of the meetings of the gram panchayat were interpolated by getting such resolutions placed on the record of the panchayat.3. the district development officer, ahmedabad (rural) by his order dated 21-8-2007, accepted a part of the appellants' defence regarding the building permissions granted pursuant to the resolutions dated 16-4-2007 and 2-5-2007, but the district development officer held that 13 resolutions were passed by the gram panchayat at the meeting held on 8-3-2007 which were contrary to law. the d.d.o. also held that there were as many as 32 cases where the gram panchayat had not granted any building permission, but the members of the panchayat had not got any notice issued against unauthorized construction. moreover, there were 58 cases where non-agricultural permissions granted in the distant past had lapsed on account of non-compliance with the conditions to commence, within six months and to complete within three years, construction on the lands in question. in spite of breach of such mandatory conditions of the n.a. permissions granted in the past, the sarpanch and the members of the panchayat had granted building permissions in collusion with the owners of the concerned lands and thus the sarpanch and members of the gram panchayat had abused their powers and had also committed persistent defaults by not taking any action against unauthorized constructions.4. aggrieved by the above orders, the sarpanch as well as the appellants preferred appeals under section 57(3) of the act before the appellate authority. the appellate powers of the state government under section 57(3) of the act are delegated to the additional development commissioner by a statutory delegation order contained in notification dated 26-7-1994 as amended from time to time. the additional development commissioner heard the appeals and dismissed all the appeals on 15-10-2007.5. aggrieved by the above orders of the d.d.o. as confirmed by the appellate authority, the sarpanch as well as the present appellants, 13 in number, preferred special civil applications before the learned single judge. by common judgment dated 25-8-2008, the learned single judge dismissed all the appeals by separately dealing with the contentions raised in the appeal of the sarpanch, and thereafter, the common contentions raised by the appellants being 13 out of 26 members of the gram panchayat. the learned single judge dealt with all the contentions raised on behalf of the appellants including the defence that certain resolutions were not passed by the gram panchayat but were interpolated. the learned single judge gave the following findings:28. as noted, district development officer had found that in some cases, the panchayat had passed resolutions granting development permissions to the plot holders. i had called for original records and perused the same and permitted access thereto to the advocates appearing for the petitioners to examine the contentions of the petitioners that the resolutions were later on interpolated and they were not initially part of the record. having examined the original records, i do not find it possible to accept the contention of the petitioners. one meeting of the panchayat was held on 8-3-2007. item no. 10 of the agenda pertains to disposal of the applications received. corresponding resolution no. 15 dated 8-3-2007 was passed resolving that the applications received for development permission are being granted after verification. this permission pertained to plot nos. 5, 6 and 7 in survey no. 535 paikee in favour of new baleshwar co-operative housing society. one more meeting was held on 16-4-2007. agenda item no. 10 thereof provided for disposal of applications received. corresponding resolution no. 10 in the meeting dated 16-4-2007 was adopted by the panchayat granting development permissions in four different cases.29. contention of the counsel for the petitioners was that neither the agenda nor the resolution were faithfully recorded. these contentions are not substantiated from any evidence on record. the agenda as well as resolutions have been duly signed by the members. in the subsequent meeting, proceedings of the previous meetings have been read over and approved. if there was any inaccuracy advertent or otherwise in recording of the resolutions, same ought to have been objected to by the members. no such attempt was made. simply turning around much later and seeking to dissociate and distance themselves from the resolutions, would not absolve the members from their liability. it thus remains established on record that even the members of the panchayat authorised granting of development permissions contrary to the directives.6. letters patent appeal no. 1455 of 2008 filed by the sarpanch of the gram panchayat was dismissed by this court by judgment and order dated 23-12-2008.7. the present appeals filed on 23-9-2008 were requested to be circulated for urgent orders on 15-1-2009 as per the note dated 13-1-2009 of the learned advocate for the appellants. the appeals were thereafter heard from time to time and with the consent of the learned advocates for the parties, the appeals were taken up for final disposal.8. in the meantime, by notification dated 5-1-2009 under rule 9(2) of the gujarat panchayat elections rules, 1994 of the district collector-cum-officer of the state election commission, elections to office of sarpanch and 26 members of the bopal gram panchayat were declared. as per the said election notification, the election program was declared as under:last date for filing nominations : 10-1-2009date of scrutiny : 12-1-2009last date for withdrawing nominations : 13-1-2009date of polling, if necessary : 25-1-2009date of counting : 27-1-2009in view of the above election program, the elections were conducted and the results of the elections were also declared on 27-1-2009. the first meeting of the gram panchayat has also been held on 21-2-2009.contentions of the appellants:9. the learned counsel for the appellants has raised the following contentions:(i) the show-cause notices issued by the d.d.o. were lacking in the necessary particulars, were vague, and therefore, not capable of being answered;(ii) the sarpanch and talati of the gram panchayat were responsible for the acts of commission and omission and the appellants as individual members of the gram panchayat were not vested with any executive powers or duties. such executive powers and duties are only conferred on the sarpanch and talati-cum-mantri of the gram panchayat. hence, the allegations made in the show-cause notices did not constitute such act or omission as to fall within the purview of section 57(1) of the act;(iii) if at all the allegations contained in the show-cause notices could warrant any action, it could only be against the gram panchayat as a body and at the most, the state government could have issued notices under section 253 of the act for dissolution or supersession of the panchayat but the d.d.o. could not have initiated any proceedings under section 57 of the act. the permissions were granted by the gram panchayat as a collective body and the alleged inaction against unauthorized construction was on the part of the gram panchayat as a collective body and not by individual members of the gram panchayat. hence, it was not open to the d.d.o. to exercise the power under section 57(1) of the act.(iv) the power to appoint administrator for the gram panchayat is conferred by section 253, but section 57 of the act does not confer any such power to appoint administrator for the gram panchayat. in the instant case, after passing orders of removal against the sarpanch and all the members of the gram panchayat, administrator was appointed. this would only show that the power was not exercised under section 57 of the act.(v) as per the settled legal position, a statutory power can only be exercised in the manner provided in the statute and not in any other manner.submissions on behalf of the respondent-authorities:10. on the other hand, mr. munshaw, learned advocate for the district development officer and mr. sunit shah, learned government pleader for the additional development commissioner, opposed the appeals and supported the judgment and orders of the learned single judge.both the learned counsel submitted that the appellants' only defence was that the resolutions passed by the gram panchayat were not really passed by the gram panchayat, but were subsequently put up, but the appellants had not disputed the fact that unauthorized construction was going on; that in suo motu p.i.l. proceedings, this court had issued directions to stop haphazard growth of construction in bopal village and that the revenue department had also issued instructions on 8-3-2007. it is submitted that unauthorized constructions were going on a large-scale and the sarpanch and the members of the gram panchayat cannot be permitted to turn a blind eye to such gross violations of law and shirk their statutory duty of taking action against unauthorized constructions. it is further submitted that merely because the circumstances in which the powers under section 253 could be exercised may overlap with the circumstances under which the power under section 57 of the panchayats act can be exercised, it does not mean that the two powers are mutually exclusive. if the contention of the appellants were to be accepted, the sarpanch of the gram panchayat would also have claimed immunity against exercise of the powers under section 57. the provisions of section 57 do not impose any limit on the number of members who can be removed under section 57(1). if all the members of the gram panchayat are found to have abused their powers or to have committed persistent defaults in exercise of their powers, it is open to the d.d.o. to initiate proceedings against each of them under section 57 of the act. the directives of the high court were given wide publicity on account of the suo motu p.i.l. proceedings and the members of the gram panchayat cannot be permitted to take shelter behind the plea that the sarpanch or the talati-cum-mantri had not brought such directives to their notices.moreover, fresh elections have already been held pursuant to the notification dated 5-1-2009 and the results are also declared on 27-1-2009. hence, the said important subsequent development ought to be taken into consideration and for this reason also, the appeals deserve to be dismissed.discussioncontention (i):11. as regards the first contention that the show-cause notices were vague as lacking in necessary particulars, we do not find any substance in the same. each ground indicated in the show-cause notice referred to the survey numbers of the lands where building permission was granted by the village panchayat and also the lands on which unauthorized construction had taken place or was going on. the petitioners gave reply to the show-cause notices and did not ask for further particulars (as noted in paragraph 34 of the judgment of the learned single judge). the allegations were referable to the record which was within the access of the appellants. hence, it is not possible to accept the contention that the show-cause notices were vague.contention (ii):12. we may now deal with the submission of mr. mangukiya that only the sarpanch and talati of the gram panchayat were responsible for the alleged illegalities and irregularities and that the individual members of the gram panchayat are not vested with any executive powers or duties.13.1. section 55 of the act does confer executive power for the purpose of carrying out the provisions of the act and the resolutions passed by the village panchayat on the sarpanch and section 114 does provide that a secretary of a village panchayat shall subject to the control of the sarpanch, perform such other functions and duties under the act as may be prescribed.13.2. section 55(1) of the act reads as under:section 55. executive functions of sarpanch or upa-sarpanch : (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 by 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 powers and duties shall, save as may be otherwise prescribed by rules, be exercised and performed by the upa-sarpanch.section 56 contains provisions for motion of no-confidence which may be supported by one-half of the total number of members of the panchayat concerned and the motion may be carried by majority of at least two-third of the total number of members of the panchayat.section 104(1) of the act reads as under:section 104. control on erection of buildings : (1) no person shall erect or re-erect or commence to erect or re-erect within the limits of the village, any building without the previous permission of the panchayat.sub-section (4) of section 104 provides for prosecution and sentence of fine to be imposed on whoever erects or commences to erect any building without such permission or in any manner contrary to the provisions of sub-section (1) or any bye-law in force or any conditions imposed by the panchayat.sub-section (5) of section 104 reads as under:(5) without prejudice to the penalty prescribed in sub-section (4), the panchayat may:(a) direct that the erection or re-erection be stopped,(b) by written notice require such erection or re-erection to be altered or demolished, as it may deem necessary.and if the requirement under clause (b) is not complied with within the time fixed in the notice, the panchayat may cause the alteration or demolition to be carried out by its officers and all the expenses incurred by the panchayat therefor, shall be recoverable in the same manner as an amount claimed on account of any tax recoverable under chapter x.13.3. we find considerable substance in the submission made on behalf of the learned counsel for the respondent-authorities that the power to grant permission to construct building under section 104 of the act and the power to take action in respect of unauthorized construction are conferred on the village panchayat and not merely on the sarpanch. hence, the other members of the panchayat cannot throw all the blame on the sarpanch and claim immunity from any action. section 56 of the act enables members of the gram panchayat to move a motion of no-confidence by one-half of the total number of members of the panchayat and to carry such motion by a majority of at least two-thirds of the total number of members of the panchayat. therefore, if the sarpanch did not exercise the executive powers of the panchayat appropriately and acted in defiance of the directives of the high court to stop haphazard growth in the area of bopal gram panchayat, the members of the gram panchayat were expected to call upon the sarpanch to exercise executive powers under section 55 of the act appropriately and upon failure to do so, to move a motion of no-confidence. however, the members did nothing of the sort. it cannot, therefore, be said that action could only have been taken against the sarpanch and talati of the gram panchayat and not against the other members of the gram panchayat or the gram panchayat itself.we, therefore, do not find any substance in the second contention urged on be half of the appellants.contention (hi):14. we may now take up for consideration the legal contention urged on behalf of the appellants that in the facts of this case, the d.d.o. could not have invoked the power under section 57 of the act for taking action against individual members because the allegations constituted default on part of the gram panchayat as a collective body and that action under section 57 can be taken only for the defaults of an individual member.15. the provisions of sections 57 and 253 read as under:57(1) the competent authority may remove from office any member of the panchayat, the sarpanch or, as the case may be, the upa-sarpanch thereof, after giving him an opportunity of being heard and giving due notice in that behalf to the panchayat and after such inquiry as it deems necessary, if such member, sarpanch or, as the case may be, upa-sarpanch 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 junction under this act or has become incapable of performing his duties and functions under this act. the sarpanch or, as the case may be, the upa-sarpanch, so removed may at the discretion of the competent authority also be removed from the membership of the panchayat.253(1) if, in the opinion of the state government, a panchayat exceeds or abuses its powers or is incompetent to perform or makes persistent default in the performance of the duties imposed on it or functions entrusted to it under any provision of this act or by or under any other law for the time-being in force, or fails to obey an order made under this act by the panchayat superior thereto or by the state government or any officer authorised by it, under this act or persistently disobeys any of such orders, the state government may, after consultation with the district panchayat in the case of a panchayat subordinate to it and after giving the panchayat an opportunity of rendering an explanation, by order in the official gazette:(i) dissolve such panchayat, or(ii) supersede such panchayat for the period specified in the order:provided that such period shall not be longer that six months or the residual period of duration of such panchayat whichever is less;provided further that the state government may subject to the preceding proviso from time to time after making such inquiry as it may consider necessary by an order published in the official gazette extend the period of supersession of such panchayat until such date as may be specified in the order or by like order curtail the period of supersession.(2) when a panchayat is dissolved or superseded, all members of the panchayat shall from the date specified in the order, vacate their office as such members.(3) when the panchayat is dissolved or superseded, it shall be reconstituted, in the manner provided in this act.(4) if a panchayat is dissolved or superseded:(a) all the powers and duties of the panchayat shall during the period of dissolution or supersession, as the case may be, exercised and performed by such person or persons as the state government may, from time to time appoint in that behalf, and(b) all property vested in the panchayat shall during the period of dissolution or supersession, as the case may be, vest in the state government; and(c) on the dissolution or, as the case may be, on the expiry of the period of supersession, the panchayat shall be reconstituted in the manner provided in this act, and the persons vacating office shall be eligible for re-election.(emphasis supplied)section 30(1)(d) reads as under:30. disqualification of : (1) no person shall be a member of a panchayat or continue as such who:(d) has been removed from any office held by him in any panchayat under any provision of this act...and a period of five years has not elapsed from the date of such removal, unless he has, by an order of the state government notified in the official gazette been relieved from the disqualification arising on account of such removal from office;16. the following table clearly brings out the overlapping of the powers under the two provisions:--------------------------------------------------------------------------------section 57(1) section 253(1)removal of sarpanch/ dissolution/supersession ofupa-sarpanch/member gram panchayatof gram panchayat--------------------------------------------------------------------------------when--------------------------------------------------------------------------------* guilty of misconduct in the discharge of his duties or guiltyof any disgraceful conduct or--------------------------------------------------------------------------------* abuses his powers or * exceeds or abuses its powers or--------------------------------------------------------------------------------* makes persistent default in * makes persistent default in thethe performance of his duties performance of the duties imposed onand functions or it or functions entrusted to it or--------------------------------------------------------------------------------* becomes incapable of performing * is incompetent to perform orhis duties and functions--------------------------------------------------------------------------------* fails to obey an order made underthe act by the panchayat superiorthereto or by the state governmentand persistently disobeys any ofsuch orders.--------------------------------------------------------------------------------17. on an analysis of the above provisions, the following aspects emerge:(1) the powers under sections 57(1) and 253(1) can be exercised where the members of the panchayat or the panchayat are found abusing their powers or making persistent default in the performance of their duties and functions under the act. in this sense, the powers are overlapping and not placed in separate water-tight compartments.(2) the power to take action under section 57(1) is conferred on the district development officer and the appeal under section 57(3) against such orders lies before the state government. as per the statutory delegation order under section 271(1), the said appellate power is delegated to the additional development commissioner. on the other hand, the power under section 253 is conferred on the state government which, as per the same statutory order, is delegated to the development commissioner.(3) in both the cases, where the members are removed under section 57 or the gram panchayat is dissolved or superseded under section 253, the persons who get elected hold office only for the remainder of the term of the members who are removed or remainder of the term of the gram panchayat, which is dissolved or superseded.(4) as per the provisions of section 30(1)(d) of the act, sarpanch/upasarpanch/members who are removed under section 57(1) are visited with the consequence of automatic disqualification for a period of five years from the date of removal, unless the state government relieves him/them from such disqualification.on the other hand, when the gram panchayat is dissolved or superseded and when elections are held for re-constituting the gram panchayat, the members of the body so dissolved or superseded are eligible for re-election.18. at this stage, we must deal with the contention vehemently urged by mr. mangukia for the appellants that section 253 confers power upon the state government to dissolve or supersede a gram panchayat for the collective faults of the sarpanch and its members whereas section 57 confers power upon the d.d.o. to take action against individual members for the defaults committed by individual members and not by the gram panchayat as a body. in support of this submission, mr. mangukia placed strong reliance on two decisions of a learned single judge of this court in laladhar pragji v. state of gujarat : 1996 (2) glr 2 and udaysinh shankersinh zala v. s.d. vadera : 1996 (2) glr 349.it is true that the aforesaid decisions of a learned single judge of this court, prima facie, support the petitioner's contention. these decisions were rendered under the gujarat panchayats act, 1961 which conferred similar powers of removal on the d.d.o. under section 49, and power of dissolution/supersession of the panchayat on the state government under section 297 corresponding to sections 57 and 253 of the act of 1993, respectively.19. in laladhar pragji's case (supra), the proceedings were initiated under section 317 of the old act (corresponding to section 267 of the present act), which provided that every member of a panchayat shall be personally liable for the loss of any money or other property of panchayat, which has been caused or facilitated by his misconduct or gross neglect of his duty as a member. the power of such recovery is conferred on an officer authorized by the state government which may issue a notice and give an opportunity of hearing before determining liability of the concerned member. an aggrieved person may challenge that decision before the district court.in the said case, such proceedings under section 317 of the old act were initiated on the ground that it was compulsory for the concerned gram panchayat to levy tax on buildings and lands and by not levying such tax the members of the panchayat had caused loss to the panchayat. in the background of these facts, the learned single judge held that the duty cast upon the gram panchayat to levy a tax on buildings and lands was not on any individual member of the panchayat but on the panchayat as a whole which takes a collective decision in its meeting. it was further held in the facts of that case that there were 15 members in the panchayat and the inaction of the four petitioners, if any, could not be considered to be a determining factor and they could not be saddled with the liability of making payment of a tax which the panchayat did not levy and which could not have been retrospectively levied. it was further observed that the panchayat collectively takes decision for discharge of its duties and its failure to discharge the duty cannot be attributed to a single member. moreover, even while taking decisions, members of the panchayat can have their own opinion on the subject. in the event of decision taken by majority, the question may thus arise as to who is liable from amongst those who had voted on the decision, if it is a wrong decision. the learned single judge then observed that section 317 of the old act could not be invoked in such a case. since, the question was only of failure of duty cast upon the panchayat, the proper course in such case would be to take action against the panchayat as contemplated by section 297 of the old act corresponding to section 253 of the present act, i.e. dissolution or supersession of the gram panchayat.20. similarly, in udaysinh shankersinh zala's case (supra), the same learned single judge examined the question in the context of the provisions of section 49 of the old act (corresponding to section 57 of the present act) removing the petitioner from the office of sarpanch on the ground of alleged misconduct of levying toll, though the panchayat had no power to levy such toll on animals carrying burden. the learned single judge held that the decision to impose toll was taken collectively by the panchayat and could not be said to be an act of the sarpanch. the learned single judge further observed that such collective decisions of the panchayat can never be described as a misconduct on the part of sarpanch or an act amounting to abuse of position as a sarpanch. therefore, there was no occasion for the competent authority to invoke the power of removal under section 49 of the old act corresponding to section 57 of the present act.21. having carefully examined the aforesaid decisions and the statutory provisions of sections 57 and 253 of the present act, we do not propose to approve in their entirety the principles laid down by the learned single judge in the aforesaid two decisions. we are of the view that there may be circumstances in which powers can be exercised under section 57 or section 253. it would not be possible to make water-tight compartments between collective acts of the panchayat which can only fall under section 253 on the one hand and individual acts of the members of the panchayat which can only fall under section 57 of the act on the other hand. for instance, if it is shown that the building permission was granted by the gram panchayat on account of payment of illegal gratification by the owner of the concerned land, all the members of the gram panchayat who voted in favour of the resolution may be liable to be proceeded against under section 57 of the act, even if the action may seem to be a collective decision. this is not to create an impression that ordinarily for acts of omission it may not be possible to hold individual members liable for action under section 57 of the act, and that powers under section 57 can be exercised by the d.d.o. where individual members are found to be guilty of acts of commission. we are not sure whether such generalization would be in order, because acts of omission can also be for extraneous considerations.22. in the facts of the instant case, we find that at the meetings held on 8-3-2007 and 16-4-2007 building permissions were granted by the gram panchayat in one case (plot nos. 5, 6 and 7 in survey no. 535) and in four different cases respectively as noted by the learned single judge. the prohibitory orders of this court in the suo motu proceedings were against grant of n.a. permission and not against granting building permission per se. the land owners were already granted n.a. permission in the distant past. of course, under such n.a. permissions, the owners were required to start construction within six months and complete the construction within three years from the date of n.a. permission. since, no construction activity had commenced or completed within the period stipulated in the n.a. permission, the gram panchayat could not have granted the building permission without revalidation of the n.a. permission. still the town planner of the state government had approved the building plans after making a cryptic vague reference to need for compliance with the conditions stipulated in the n.a. permission by way of one of the notes. on an overall assessment, on the basis of the material on record, it would not be possible to hold that all the members of the gram panchayat had granted the building permission for extraneous considerations. hence, it is not possible to hold, in the facts and circumstances of this case, that members of the gram panchayat had acted in collusion with the land owners.23. but at the same time, we find considerable substance in the submission made on behalf of the respondent-authorities that the gram panchayat did not take any action and the appellants as members of the gram panchayat did not ensure that the sarpanch carried out his statutory duties properly. the orders of the high court in the suo motu proceedings passed in the year 2006 were given wide publicity in the newspapers, and therefore, the appellants who are residents of bopal village on the outskirts of ahmedabad city must be treated to have been posted with the knowledge of such orders. the suo motu proceedings were initiated, inter alia, on account of break down of sewerage and drainage services in bopal on account of haphazard construction activity without obtaining n.a. permission and/or building permission. the appellants could, not therefore, be permitted to feign ignorance of this state of affairs. hence, when they assumed office in january, 2007, they were required to see that the gram panchayat took necessary action for removal of unauthorized constructions. even if the talati-cum-mantri did not bring the instructions of the state government to the notice of the appellants as contended, the appellants must be taken to be aware of the fact that unauthorized constructions which had already taken place or were going on a large scale within the limits of the bopal gram panchayat. such inaction, even if of the panchayat as a body, was indefensible. in view of this finding, even if the power under section 57 could not have been exercised, this was certainly an appropriate case for exercise of powers under section 253 of the act for dissolution/supersession of the gram panchayat.24. in view of the above findings, we would have ordinarily quashed the orders of removal of the appellants herein from the office of the members of the gram panchayat under section 57 of the act and left the matter to be decided by the competent authority under section 253(1) of the act. that might have required restoring the appellants to the office of members of the gram panchayat. however, in the facts and circumstances of this case, we are not inclined to do so for the following reasons:(i) the powers under sections 57 as well as 253 can be exercised in case of abuse of powers as well as in case of persistent defaults to perform the functions and to discharge the duties under the act.(ii) the power under section 253(1) is to be exercised by the development commissioner as a delegate of the state government. in the instant case, the additional development commissioner, delegate of the state government, as appellate authority under section 57(3) of the act had already given findings against the appellants both for their acts of commission and omission. as already indicated earlier, the acts of omission were indefensible.(iii) the learned single judge has also held that the concurrent findings given by the d.d.o. and the additional development commissioner are not required to be disturbed - inasmany as 58 cases the authorities had detected breach of the provisions of section 104 of the act that no person is authorized to carry out construction activity without previous permission of the panchayat, that such unauthorized constructions were contrary to the interim orders of the court in suo motu proceedings and that in the communication dated 16-3-2007 also the revenue department of the government had conveyed that such illegal activities be curbed and report be made to the authorities. the learned single judge in terms held that the charge of persistent default in discharge of duties by not controlling unauthorized activity was rightly held to have been proved.(iv) the appellants were removed as members of the gram panchayat by order dated 21-8-2007 of the district panchayat and the appellants' appeals were dismissed by the additional development commissioner on 15-10-2007. the learned single judge dismissed the special civil applications by common judgment dated 25-8-2008. the present appeals which were filed on 23-9-2008 were, however, not moved for urgent hearing or urgent orders till the collector, ahmedabad issued notification dated 5-1-2009 declaring the election program. the last date of filing nominations was 10-1-2009, the date of scrutiny was 12-1-2009 and the date of polling was 25-1-2009. for the first time, the appellants filed the note for urgent circulation on 13-1-2009 for urgent hearing on 15-1-2009. the final hearing commenced in the fourth week of january, 2009 and the hearing concluded after the date of polling.(v) the term of the recently elected panchayat will not be the full term of five years but the remainder period of two years and eleven months.(vi) in the bihar assembly dissolution case also : 2005 (7) scc 625, and rameshwar prasad v. union of india : 2006 (2) scc 1, the apex court declined to restore the status-quo ante even after declaring the dissolution of the assembly as unconstitutional.in the order dated 7-10-2005, the apex court had declared the proclamation dissolving the legislative assembly of the state of bihar as unconstitutional. however, despite the unconstitutionality of the impugned proclamation, since fresh elections were already notified, and as per press note dated 3-9-2005 issued by the election commission of india, the schedule for general elections for legislative assembly of bihar was announced and elections were to be held between 18-10-2005 and 19-11-2005, the court declined to order restoration of status-quo ante.in the final judgment dated 24-1-2006, the court held that even if it is said that the dissolution notifications were unconstitutional, the natural consequence is not restoration of status-quo ante. the court declaring the dissolution notifications to be invalid can assess the ground realities and the relevant factors and can mould the reliefs as the circumstances warrant. restoration of status-quo ante would not have been the proper relief. for taking this view, in para 280, the court referred to 'public law 2005', particularly the passages with the following heading:judicial review : power of the court to limit the temporal effect of the annulment of an administrative decision, postpone the date at which it will produce effects and qualify the extent of the nullity.(vii) as per the settled legal position, jurisdiction under article 226 is discretionary. in shiv shankar dal mills v. state of haryana : 1980 (2) scc 437, the apex court has made the following pertinent observations:article 226 grants an extraordinary remedy which is essentially discretionary although founded on legal inquiry. it is perfectly open for the court, exercising this flexible power, to pass such order as public interest dictates and equity projects:courts of equity may, and frequently do, go much further both to give and withhold relief in furtherance of the public interest than they are accustomed to go where only private interests are involved. accordingly, the granting or withholding of relief may properly be dependant upon considerations as of public interest.(emphasis supplied)25. after considering all the relevant facts and circumstances of the case and the statutory provisions, even while holding that the matter was more appropriate for exercise of the powers under section 253(1) of the act insofar as the bopal gram panchayat had failed to take action for removal of unauthorized constructions and not under section 57(1) of the act, this court is not inclined to exercise the extraordinary discretionary prerogative writ jurisdiction under article 226 of the constitution to restore the appellants back to their office as members of the bopal gram panchayat as elections have already been held in the meantime on 25-1-2009 for the office of sarpanch as well as all the 26 seats of members of the gram panchayat including the 13 seats previously held by the present appellants. the results of the election were also declared on 27-1-2009 and the newly elected body has already held its first meeting on 21-2-2009.26. in view of the above discussion, while holding that in the facts of this case, the power of removal under section 57 of the gujarat panchayats act could not have been exercised by the d.d.o. against the present appellants, and accordingly, declaring removal of the appellants from the office of members of bopal gram panchayat as not in accordance with law, this court declines to grant any direction for restoring the appellants to the office of members of the bopal gram panchayat. the appellants shall not be treated to have incurred any disqualification under section 30(1)(d) of the act.27. the appeals are accordingly disposed of in the aforesaid terms.h.n. devani, j. (concurring):28. i have had the privilege of perusing the judgment proposed by my learned brother m. s. shah, j. however, with respect, though i agree with the consequential part of the order, 1 express my inability to fully concur with the reasoning adopted and the conclusions arrived at by my learned brother and i propose to deliver a separate judgment in the following terms:29. the chronology of facts leading to the filing of this group of thirteen letters patent appeals is as under:29.1. pursuant to reports appearing in various newspapers that the ahmedabad municipal corporation and the municipalities and gram panchayats on the periphery of the city of ahmedabad were totally indifferent to the chaotic condition that had been created on account of water-logging, filth and solid waste in the said areas, giving rise to outbreak of an epidemic, a division bench of this court thought it fit to take up suo motu proceedings with a view to gear up the administration to take prompt action in the direction of improving sanitary conditions of the city and the areas on its periphery, which came to be numbered as special civil application no. 1128 of 2005. in the said proceedings initially notices were issued to the ahmedabad municipal corporation, a.u.d.a. and six municipalities. it appears that notices were subsequently issued to other local authorities including the bopal gram panchayat. various orders were passed in the proceedings from time to time. upon perusal of the inspection reports pertaining to various areas submitted before the court, vide order dated 31st august, 2005, insofar as bopal gram panchayat is concerned, the court felt that one more chance should be given to it to amend the mistakes, failing which the court would direct the office to issue show-cause notice to the secretary, bopal gram panchayat, calling upon him as to why the concerned authority should not be prosecuted. subsequently, vide order dated 2nd december 2005, the office was directed to issue notices to the then sarpanch, secretary and head of the sanitation and health department of bopal gram panchayat to show cause why they should not be prosecuted for committing breach of the statutory provisions relating to health and hygiene of the public as contained in the gujarat panchayats act and other similar legislations including the offences as prescribed under the indian penal code. the said petition came to be disposed of vide judgment and order dated 15th february, 2006. insofar as bopal gram panchayat is concerned the same finds reference in paragraph 3.4 of the judgment wherein inter alia it has been observed thus:the main reason for the problem created in bopal area appears to be the indiscriminate n.a. permissions having been granted by the concerned authorities to utilize the agricultural lands for building activity. it also appears that the property developers, to earn their immediate benefits, did not foresee the difficulties that are now being faced by the people of bopal. we have, therefore, issued notice to the district development officer of ahmedabad district panchayat, who is the authority to grant n.a. permission, to find out from him in what circumstances such permissions have been granted. the district development officer mr. r. n. joshi has filed his affidavit dated 27th january, 2006 explaining the criteria to be followed while granting n.a. permissions. we have also heard the learned advocate mr. champaneri for the district development officer and we have also perused the affidavit. however, we are not much satisfied with either the submissions of mr. champaneri nor with the contents of affidavit and it clearly appears to us that for the present some brake is required to be applied to the granting of n.a. permissions in these areas so as to prevent aggravation of problem.29.2. after considering the various material provided to the court by the parties as well as the material collected by the court, various directions came to be issued. insofar as the present petition is concerned the following direction would be relevant:the government should also consider as to whether n.a. permissions in future would aggravate the worsening situation that the residents of bopal are facing and till such time the proper remedial measures are taken for discharge of domestic effluent, no further grant of n.a. permissions should be made under the provisions of the bombay land revenue code.29.3. it appears that in compliance with the aforesaid directions the state government, in its revenue department, vide order dated 1-5-2006 directed the collector, ahmedabad that out of the various directions issued by the high court in the judgment rendered in special civil application no. 14128 of 2005, in the context of the direction relating to grant of non-agricultural permission under the provisions of the bombay land revenue code, it has been ordered that no non-agricultural permission be granted in other cases. it was also requested to ensure that the said order is complied with forthwith.29.4. vide communication dated 8th june, 2006 issued on behalf of the district development officer, ahmedabad, addressed to eight authorities including the sarpanch, bopal gram panchayat, the said authorities were directed to comply with the instructions dated 1-6-2006 issued by the joint secretary, panchayats and rural housing development department.29.5. subsequently, elections of the bopal gram panchayat were held on 10th december, 2006 and one shantaben bachubhai patel was elected as the sarpanch. the present appellants and thirteen others, in all 26 persons were elected as members. the first meeting of the newly elected members of the panchayat was held on 17th january, 2007 from which date the appellants took charge as members of the bopal gram panchayat.29.6. the district development officer, ahmedabad addressed a communication dated 16th march, 2007 to the talati-cum-mantri (secretary), bopal gram panchayat, informing him that it has come to the notice of his office that constructions are going on without any hindrance without obtaining non-agricultural permission from his office and without obtaining rajachitthi (development permission) from the gram panchayat. that a large number of representations have been received against constructions which were being carried out without prior permission from his office and without obtaining rajachitthi, despite which it appears that no attempts are being made at his level to stop such constructions. therefore, he is being instructed that he should immediately carry out a survey regarding the number of works going on without non-agricultural permission and at the outset issue notice at the level of gram panchayat to stop such works and send proposals in respect of all such works after following due procedure through the taluka development officer, dascroi, within a period of 15 days. it was further stated in the said communication that the matter being very serious, he is being specially cautioned to maintain the time-limit and if he fails to do so steps will be taken in accordance with law against him, which he should take note of.29.7. it appears that the aforesaid instructions issued by the district development officer were not complied with. besides, in certain cases fresh development permission was granted by the gram panchayat. hence, the district development officer, ahmedabad, in exercise of powers under section 57(1) of the gujarat panchayats act, 1993 issued individual show-cause notices dated 7th august, 2007 to each of the members of the bopal gram panchayat setting out the charges against them (which shall be referred to in detail hereinafter) and asking them to show cause as to why they should not be removed from the office of members of the bopal gram panchayat.29.8. the appellants gave their reply to the show-cause notice on 17th august, 2007 dealing with all the charges levelled against.29.9. vide individual but identically worded orders dated 21st august, 2007 the district development officer in exercise of powers under section 57(1) of the act, ordered that each of the appellants be removed from the office of member of the bopal gram panchayat. it may also be noticed that in view of the provisions of section 30(1)(d) of the act, a person who has been removed from any office held by him in any panchayat under any provision of the act incurs a disqualification whereby he is barred from being a member of the panchayat or continuing as such till a period of five years has elapsed from the date of such removal, unless he has, by an order of the state government notified in the official gazette been relieved from the disqualification arising on account of such removal from office. accordingly, by virtue of the order of removal the appellants stand disqualified from being or continuing to be members of the panchayat for a period of five years from 21st august, 2007.29.10. being aggrieved, the appellants preferred appeals before the additional development commissioner, state of gujarat, under the provisions of sub-section (3) of section 57 of the act. the additional development commissioner by his order dated 15-10-2007, dismissed the appeals and confirmed the order passed by the district development officer. the appellants carried the matter further before this court by way of the writ petitions under article 226 of the constitution of india. by the impugned judgment and order dated 25/26-8-2008, the learned single judge dismissed all the petitions, which has given rise to this group of letters patent appeals.29.11. though, these letters patent appeals were filed on 23-9-2008, request for circulating the same was made only on 13-1-2009 after the election programme for holding elections of the bopal gram panchayat was declared vide notification dated 5-1-2009, and the same came to be listed for hearing on 15-1-2009. during the pendency of the letters patent appeals the elections were conducted and the court was informed that the first meeting of the newly elected members of the bopal gram panchayat was to be held on 21-2-2009. since, the respondents were appearing on caveat, considering the nature of the issue involved, with the consent of the learned advocates for the parties the matters were heard for time to time for final disposal. however, no interim relief had been granted.30. heard mr. b. m. mangukiya learned advocate for the appellants in each of the letters patent appeals, mr. sunit shah learned government pleader for respondent no. 1 and mr. h. s. munshaw for the other respondents.31. mr. mangukiya, learned advocate for the appellants submitted that individual notices under section 57(1) of the act were issued to all 27 members of the panchayat as well as the sarpanch and that most of the grounds alleged in the show-cause notice are addressed to the sarpanch. it was contended that in a show-cause notice under section 57(1) of the act, individual defaults of the members ought to have been mentioned, whereas the show-cause notice merely refers to the default on the part of the sarpanch and the collective defaults of the panchayat. it was submitted that the show-cause notice refers to grant of building permission on the part of the members of the panchayat without even verifying whether each of the members against whom proceedings are initiated were present at the meetings when the building permissions are alleged to have been granted. referring to the contents of the show-cause notice, it was pointed out that it is not possible for the members to answer the show-cause notice as charges number 1 to 5 are essentially against the sarpanch, and charge nos. 6 and 7 are vague, non-specific and general and as such cannot be answered. it was contended that charge no. 8 is in respect of a communication, which is not addressed to the panchayat. it was contended that the district development officer is entrusted with the power to take action in case of default on the part of an individual and not against the body as a whole. that stereotype notices have been issued to all the members of the panchayat and that under the guise of exercise of powers under section 57 of the act, the district development officer has in fact sought to usurp the power of the state government under section 253 of the act. it was contended that the district development officer is not vested with plenary powers to remove the entire body, and that power under section 253 of the act can be exercised only by the development commissioner.31.1. the learned advocate for the appellants placed reliance upon a decision of the supreme court in the case of tarlochan dev sharma v. state of punjab : 2001 (6) scc 260 wherein the court while dealing with a similarly worded provision held that the expression 'abuse of powers' in the context and setting in which it has been used cannot mean use of power which may appear to be simply unreasonable or inappropriate. it implies a wilful abuse or an intentional wrong. an honest though erroneous exercise of power or indecision is not an abuse of power. it was accordingly submitted that there is nothing in the show-cause notice to suggest wilful abuse or intentional wrong on the part of the petitioners. reliance was also placed upon a decision rendered by a learned single judge of this court in the case of kamlaben rohitbhai patel v. additional development commissioner, 2000 (2) glr 1174 wherein it has been held that where the allegation is connected with the discharge of functions by the panchayat, i.e. the body as a whole on the basis of the resolutions passed by the panchayat no single individual can be held to be liable for such allegations so as to make him or her suffer removal from an elected office. unless and until there is something personal against the elected officer-bearer sought to be removed, section 57(1) of the act cannot be invoked. the court was of the view that for the purpose of removing an elected officer-bearer, there has to be concrete and credible material against him in person which must be germane to the grounds of misconduct etc. as mentioned in section 57(1) of the act. the decision of the supreme court in the case of commissioner of income tax, mumbai v. anjum m.h. ghaswala and ors. : 2002 (1) scc 633 was relied upon for the proposition that it is a normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner, then the said authority has to exercise it only in the manner provided in the statute itself. reliance was also placed upon the decision of the supreme court in the case of a.k. roy v. state of punjab : 1986 (4) scc 326, wherein it has been held that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. other modes of performance are necessarily for bidden. similar view is taken by the supreme court in the case of gujarat electricity board v. girdharlal motilal and anr. : air 1969 sc 267 and bhavnagar university v. palitana sugar mill (p.) ltd. and ors. 2003 (2) glr 1154. reliance was also placed upon the decision of the supreme court in the case of state of uttar pradesh v. singhara singh : air 1964 sc 358 wherein it has been held that when the statute confers a power in certain judicial officers, that power can obviously be exercised only by those officers. no other officer can exercise that power, for it has not been given to him. it was, accordingly, submitted that when the legislature has made a specific provision under section 253 of the act for supersession of the panchayat in case of collective default on the part of the panchayat, it is not permissible for the district development officer to resort to the provisions of section 57 of the act. the decision in the case of commissioner of central excise, bangalore v. brindavan beverages (p.) ltd. and ors. : 2007 (5) scc 388, was cited for the proposition that if the allegations in the show-cause notice are not specific and are on the contrary vague, lack details and/or are unintelligible that is sufficient to hold that the notice was not given proper opportunity to meet with the allegations indicated in the show-cause notice. the decision of the supreme court in the case of commissioner of police, bombay v. gordhandas bhanji : air 1952 sc 16 was cited for the proposition that public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind or what he intended to do. reliance was also placed upon the decision of the supreme court in the case of mohinder singh gill and anr. v. chief election commissioner, new delhi : air 1978 sc 851, for the proposition that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise.31.2. referring to the impugned order it was pointed out that the wherever the district development officer had found defence to be valid it was accepted. however, to hold the appellants responsible for the illegalities alleged in the show-cause notice, the district development officer has framed fresh charges in the impugned order. reading the show-cause notice conjointly with the impugned order it was pointed out that the same are at variance. that the district development officer has held the charges proved on completely new grounds which did not find place in the show-cause notice. it was argued that none of the charges answer the ingredients of section 57 of the act. that section 57 of the act presupposes that the member is competent to do certain things and in respect of any act or omission in connection with such competence, he can be held liable. in other words, the misconduct has to be in the discharge of his duties; if no power is vested in him there can be no corresponding misconduct or disgraceful conduct. there must be some authority or duty to act in a particular manner, in absence of which he cannot be held liable. all eventualities contemplated under section 57 presuppose that he has been conferred with certain duties and powers.31.3. the main plank of the submissions of the learned advocate for the appellants was that powers under sections 57 and 253 are mutually exclusive. where section 57 can be invoked section 253 cannot be pressed into service and vice versa. that the show-cause notice speaks of collective defaults on the part of the panchayat and not of the individual members, hence, there is no warrant for exercising powers under section 57 of the act. the action of the district development officer, is therefore, beyond the scope of his authority and ultra vires. it is also contended that the impugned order also suffers from the vice of failure to adjudicate inasmuch as the district development officer has recorded the submissions made on behalf of the appellants but has not dealt with the same.32. appearing on behalf of the respondent authorities, mr. sunit shah learned government pleader and mr. hemant munshaw learned advocate vehemently opposed the appeals. referring to the provisions of section 57 of the act, mr. shah, learned government pleader submitted that there is no restriction on the number of members against whom action could be taken under the said provision. the expression 'any member' would include the plural and even all the members. that when the ingredients of section 57 are satisfied in case of each individual member, action can simultaneously be taken against each of them even if the same results in removal of the entire body. what has to be seen is whether essentially action has been taken against an individual member. that in the facts of the present case the district development officer has issued individual notices to each of the members and has passed separate orders of removal, which was well within the scope of his authority. it was contended that if power could be exercised under section 253 on the same facts, there is no reason why it could not be exercised under section 57 of the act. it was argued that the conditions precedent for exercising powers under section 57 and section 253 of the act are overlapping. that, the consequences ensuing from taking action under the said provisions may be different and the authorities in whom the powers under the said provisions are vested may be different, but some of the circumstances for exercising such powers are overlapping. it was submitted that when the situation calls for exercise of either of the powers, it is for the authority concerned to choose as to which power it wants to exercise. it was urged that merely because the statute does not provide for a situation where all members are removed at a time, should not be an aspect to be taken into consideration for the purpose of interpreting the provisions of section 57 of the act. it was contended that where individual action is taken against one and all, the decision in the case of laladhar pragji (supra) would not be apply. it was submitted that in the facts of the present case, circumstances for exercise of powers under sections 57 and 253 of the act are overlapping; hence, the district development officer has rightly exercised powers under section 57 of the act. referring to the impugned judgment and order it was submitted that the learned single judge has on facts found that sufficient number of sufficiently serious charges were proved against the petitioners to warrant removal. it was submitted that the learned single judge has rightly construed the provisions of sections 57 and 253 of the act and held that nothing contained in sub-section (1) of section 253 can be interpreted to mean that in a given case where a case for dissolution or supersession of panchayat is made out, powers under section 57(1) of the act cannot be exercised, and that there was no reason for this court to take a different view.32.1. it was further submitted that in the facts of the present case there was grave misconduct on the part of the members of the panchayat inasmuch as they had passed resolutions granting building permissions in disobedience of the orders passed by this court. that the case of the appellants that they were not aware of the orders of this court or the instructions given by the state government cannot be believed. that wide publicity had been given to the proceedings before this court in the local newspapers and the appellants could not have been ignorant of the same. that it was also common knowledge that several unauthorized constructions were going on within the limits of the panchayat, however, the appellants did not take any action to curtail the same. that the appellants were guilty of gross negligence in the discharge of their duties and that granting building permissions contrary to the orders passed by this court amounted to misconduct. hence, the ingredients of section 57 of the act were duly satisfied and the district development officer had rightly taken action under the same.32.2. in support of their submissions, the learned advocates for the respondents placed reliance upon the following decisions:(i) the decision rendered by a learned single judge of this court in the case of kalaji hathiji v. state of gujarat : air 2000 guj. 289 : 2001 (1) glr 734 for the proposition that it is not for the court to enter into the sufficiency of the material on the aspect as to whether the petitioner had in fact been guilty of such disgraceful conduct as alleged.(ii) the decision of the supreme court in the case of state of gujarat v. jamnadas g. pabri and ors. : air 1974 sc 2233 wherein a notification issued by the state government in exercise of power under section 303a of the gujarat panchayats act, 1961 was called into question on the ground that the condition precedent for exercise of such power is not satisfied. the court held as follows:12. xxxxxx an analysis of section 303a(1) would show that before a declaration referred to in that sub-section can be made, two requirements must be fulfilled : (1) existence of a situation by reason of disturbances in the whole or any part of the state; (2) the satisfaction of the state government relatable to such a situation, that it is not expedient to hold elections for the reconstitution of a panchayat on the expiry of its term. the first requirement is an objective fact and the second is an opinion or inference drawn from that fact. the first requirement, if disputed, must be established objectively as a condition precedent to the exercise of the power. the second is a matter of subjective satisfaction of the government and is not justiciable. once a reasonable nexus between such satisfaction and the facts constituting the first requirement is shown, the exercise of the power by the government, not being colourable or motivated by extraneous considerations, is not open to judicial review xxxx33. in rejoinder, mr. mangukiya for the appellants submitted that it was the specific case of the appellants that they were not party to the resolutions granting building permissions. however, assuming without admitting that the appellants have passed such resolutions, the decisions taken by virtue of the said resolutions are decisions of the gram panchayat whether one has voted in favour or against the said resolutions. it was submitted that the language employed in the provisions of sections 57 and 253 was indicative of the legislative intent, namely that section 57 provides for a situation where there is a default on the part of an individual, whereas section 253 provides for taking action in case of collective default on the part of the panchayat. it was submitted that in case of collective default of the panchayat, it was not permissible for the district development officer to exercise powers under section 57 of the act. attention was drawn to the provisions of rules 55 of the gujarat panchayats (procedure) rules, 1997 which provides for the procedure for taking action under sub-section (5) of section 104 or sub-section (2) of section 105 to point out that such procedure has to be followed by the panchayat and it was not within the power or authority of an individual member to take action thereunder. attention was also drawn to the provisions of rule 55 of the said rules which provides for the procedure for removal of obstructions, to point out that the said rule empowers the sarpanch or the secretary of the village panchayat to take action as prescribed thereunder. that in either case, it was not within the scope of powers of the members of the panchayat to individually take any action under section 104 of the act so as to be guilty of negligence in the discharge of their duties as envisaged under section 57 of the act. it was next contended that the impugned order passed by the district development officer is based on considerations which are partly relevant and partly irrelevant. reliance was placed upon the decision of the supreme court in the case of dhirajlal girdharlal v. commissioner of income-tax, bombay : air 1955 sc 271 for the proposition that when a court of fact acts on material, partly relevant and partly irrelevant, it is impossible to say to what extent the mind of the court was affected by the irrelevant material used by it in arriving at its finding. such a finding is vitiated because of use of inadmissible material. it was submitted that the district development officer has recorded in the impugned order that in two cases no such meeting had been held. nonetheless, he has proceeded to frame a fresh charge in the order itself. a perusal of the order shows that he has acted on the entire show-cause notice and it is not possible to severe the order to find out as to which factor weighed upon him while exercising powers under section 57 of the act. reliance was also placed upon the decision of a full bench of this court in the case of testeels ltd. v. conciliation officer and anr. air 1970 guj. 1 (fb), for the proposition that quasi-judicial authorities must decide the matter solely on the facts of the particular case, solely on the material before it and apart from any extraneous considerations by applying pre-existing legal norms to factual situations. it was according submitted that the district development officer was required to decide the matter on the basis of objective facts and could not have introduced new facts while passing the impugned order.34. in the background of the facts and contentions noted hereinabove, it may be necessary to examine the findings recorded by the district development officer in the context of the charges levelled in the show-cause notice.charge no. 1:the first charge as translated into english reads thus:special civil application no. 14128 of 2005 had been filed in the gujarat high court in connection with disposal of rain water as well as garbage in mouje bopal gram panchayat in 2005. the judgment in the said case has been rendered on 15-2-2006 and with a view to implement the said judgment the revenue department had issued instructions that from 1-5-2006 till further orders no non-agricultural permission should be granted, and accordingly, the district panchayat had not granted any non-agricultural permission. despite which at present certain constructions are going on without any impediment. that you have not taken any action to stop such constructions and have displayed negligence in the discharge of your duties.in reply to the said charge the appellants in their reply dated 17th august, 2007 have stated that they were elected in the elections of the bopal gram panchayat held on 25-12-2006 and the first meeting was held on 17-1-2007, hence the said charge which pertains to the period when the old body was in charge would not apply to them.in relation to charge no. 1, the district development officer in his impugned orders dated 21-8-2007 has recorded the following findings which as translated into english read thus : 'the explanation given by the delinquent is not accepted because bopal gram panchayat was one of the main parties in special civil application no. 14128 of 2005 before the hon'ble gujarat high court. besides, the writ petition had been admitted in connection with the questions arising in respect of disposal of waste water, rain water, cleanliness and health in the bopal gram panchayat. pursuant to the oral order dated 15th february, 2006 passed by the hon'ble gujarat high court, the state government in its revenue department, vide communication dated 1-5-2006 had prohibited the grant of any non-agriculture permission till further orders. in the context of the said circular of the state government, the district panchayat, ahmedabad was not granting any non-agricultural permission. off and on, this matter was published in the daily newspapers, hence, the say of the member that, he was not aware of the same, cannot be accepted. by letter dated 8-6-2006, the sarpanch, bopal gram panchayat had been informed to comply with the judgment dated 15-2-2006 of the hon'ble gujarat high court rendered in special civil application no. 14128 of 2005. hence, it cannot be accepted that the member would not be aware of the same. moreover, vide communication dated 16-3-2007 of the revenue department of this office, it had been directed that all unauthorized constructions going on without obtaining building permission from the gram panchayat be stopped immediately and after issuing notices prescribed proposal against all of them be forwarded through the taluka development officer, which was during the tenure of the present body of the panchayat. hence, it cannot be accepted that the member was not aware of the same. besides, on 16-3-2007, during the tenure of the existing body of the panchayat, the following building permissions have been granted:(1) new baleshwar co-operative housing society ltd., resolution no. 15 dated 8-3-2007.(2) mahendrasingh bagga, resolution no. 10 dated 16-4-2007.(3) harshad b. lakhani, resolution no. 10(2) dated 16-4-2007.(4) shreeji infrastructure, resolution no. 10(3) dated 16-4-2007.(5) vishwanath infrastructure, resolution no. 10(1) dated 16-4-2007.considering the details noted hereinabove, despite the fact that specific instructions had been given on 16-3-2007, such building permissions had been granted with the consent of the member, and the member had not raised any objection against the same.the provisions of section 99 of the gujarat panchayats act, 1993 specifically provides the gram panchayat is required to function as per the powers vested in it under the schedule to the panchayats act or section or other statutes. only those functions and powers are to be exercised. that is as per the provisions of section 104(4) of the gujarat panchayats act, 'whoever erects or re-erects or commences to erect or re-erect any building without such permission or in any manner contrary to the provisions of sub-section (1) or any bye-law in force, or any conditions imposed by the panchayat shall, on conviction be punished with fine, which may extend to two hundred rupees and in the case of a continuing contravention, he shall be liable to an additional fine which may extend to twenty rupees for each day during which such contravention continues after conviction for the first such contravention.' the village panchayat should issue notice to those who put up unauthorized constructions. the member has not got any kind of notice issued in respect of 32 cases wherein unauthorized constructions are going on. besides, the non-agricultural permission granted by the taluka/district panchayat contains a condition that the construction should commence within six months and be completed within three years. if construction is not commenced and completed within such period, it is a case of breach of condition. in view of the provisions of rule 101 of the gujarat revenue rules as well as the land revenue code, prior to granting building permission, the gram panchayat should send a proposal to the competent authority in respect of the breach of condition. out of the total 58 cases, proposals for breach of condition have not been sent even in a single case. the gram panchayat, before granting building permission, is required to verify as to whether the conditions of non-agricultural permission as well as the plan approved by the town planner are satisfied, after which the building permission can be granted. looking to the allegations, the gram panchayat despite the fact that there was breach of conditions, has without carrying out any sort of verification, given its consent for granting building permission. moreover, various unauthorized constructions are going on wherein building permission has not been granted by the gram panchayat, despite which, it appears from the record that, the member has not made any representation at any level to stop or prevent such unauthorized constructions. this being the duty as well as function of the member, he has displayed negligence and lack of devotion towards his duty and misconducted himself in the discharge of his duties under the provisions of the gujarat panchayat act. hence, his explanation cannot be accepted.'as is apparent from the findings recorded by the district development officer, the same travel much beyond the charge levelled against the appellants. whereas the charge pertains to not controlling unauthorized constructions, the district development officer has recorded findings regarding grant of building permissions in five cases, out of which except for the first case which pertains to a resolution dated 8-3-2007, none of the cases even find a mention in the show-cause notice. in the circumstances the decision of the supreme court in the case of tarlochan dev sharma (supra) wherein it has been held that 'the reasons for the proposed removal have to be communicated to the person proceeded against. the purpose of the communication is to enable him to furnish an explanation of his conduct or his act or omission which is likely to be construed as an abuse of power. it is clear that the facts constituting gravamen of the charge have to be communicated. it follows as a necessary corollary therefrom that what has not been communicated or not relied on in the show-cause notice as a ground providing reason for the proposed removal cannot be relied upon as furnishing basis for the order of removal. the person proceeded against under section 22 of the act has. to be made aware of the precise charge which he is required to meet, and therefore, he must be apprised of the exact content of the abuse of power attributed to him.' would be squarely applicable to the facts of the present case. it may also be pertinent to note that the remaining four cases pertaining to grant of building permission not only do not form part of the show-cause notice but are allegedly granted on 16-4-2007, and in the context charge no. 3 regarding grant of building permission to rushil residency on 16-4-2007, the district development officer has found that no such resolution had been passed on 16-4-2007. besides, the district development officer proceeds on an assumption that the members ought to be aware of the proceedings before this court which had culminated long before the body took charge. it is also distressing to note that the district development officer conveniently does not mention that the letter dated 16-3-2007 was addressed to the talati-cum-mantri and as noted hereinbefore all the directions were given to the talati-cum-mantri and not the elected body. it may be pertinent to note that the said letter is addressed only to the talati-cum-mantri and no copy of the said letter is endorsed to the gram panchayat. besides it is the specific case of the appellants that the talati-cum-mantri had never drawn their attention to the said instructions, and there is nothing on record to indicate that the members were ever informed about the same, but for no plausible reason, the explanation has not been accepted by the district development officer. under the communication dated 16-3-2007 the talati-cum-mantri as been directed to prepare and forward a proposal through the taluka panchayat in connection with the unauthorized constructions. under section 55(2)(a)(vi) of the act, it is the duty of the sarpanch to cause to be prepared all statements and reports required by or under the act. under sub-section (2) of section 114 of the act, the secretary of a village panchayat, subject to the control of the sarpanch, is, inter alia required to prepare all statements, and reports under the act and perform such functions and duties under the act as may be prescribed. thus, under the scheme of the act, the executive powers of the village panchayat are vested in the sarpanch, and subject to the control of the sarpanch the duty to carry out such functions is imposed on the secretary of the panchayat. it is the duty of the sarpanch to cause to be prepared all statements and reports required by or under the act and the duty of the secretary to prepare them. thus, it was the duty of the talati-cum-mantri to make the report as directed by the district panchayat and the duty of the sarpanch to cause the same to be prepared. on account of non-compliance of the said direction, the members cannot be penalized. besides, the findings regarding not sending proposals for breach of non-agricultural permission lose sight of the fact that it was duty of the very officer who has passed the impugned order to take steps at the appropriate stage for cancellation of non-agricultural permission for breach of condition. no explanation is coming forth on the part of the respondents as to why no action had been taken for more than a decade in most cases for breach of non-agricultural permission by the executive, which is primarily responsible for taking such action. instead all the blame is sought to be thrown on the newly elected body, for reasons which are not far to seek.charge no. 2:plot nos. 5, 6 and 7 of survey no. 636 fall within the jurisdiction of the bopal gram panchayat where in baleshwarkrupa flats are being constructed. in respect of the said plots non-agricultural permission was granted on 1-9-1987 and at the relevant time the then gram panchayat had not granted rajachitthi. however, after you took charge as sarpanch, you have dishonoured the directions of the honourable gujarat high court as well as the instructions of the revenue department and have granted rajachitthi on 8-3-2007 and commenced the construction, which shows your misconduct, negligence and lack of devotion towards your duties.the appellants' reply to this charge was that, in the meeting held on 8-3-2007, the issue regarding grant of non-agricultural permission in favour of baleshwarkrupa flats had never come up for discussion, and that no resolution had been passed granting rajachitthi in respect of the said plot, and that the same had probably been inserted by the sarpanch after the meeting was concluded.in the context of the aforesaid charge, the district development officer has recorded the following findings:the explanation cannot be accepted because the gram panchayat has granted building permission to baleshwarkrupa on 8-3-2007 vide resolution no. 15. after this resolution, resolution nos. 16, 17, 17/1 to 17/10 i.e. in all 12 resolutions have been passed. hence, the submission that the resolution granting building permission has been inserted after the meeting was over does not appear to be true.as is apparent from a bare reading of the charge, the same is directed against the sarpanch and not the individual members. however, assuming that the building permission as alleged, has in fact been granted by the gram panchayat, it is a collective action on the part of the panchayat and not an individual act. moreover, a perusal of the orders passed by the high court as well as the state government show that what was prohibited was grant of non-agricultural permission and not building permission. it may further be noticed that no specific instructions had been issued to the panchayat to the effect that in view of the directions of the high court prohibiting grant of fresh non-agricultural permission, the panchayat should refrain from granting any building permission or acting upon old non-agricultural permissions. under the provisions of the bombay land revenue code, 1879 the power to grant as well as cancel non-agricultural permissions is vested in the collector or the district development officer, and nothing has been placed on record by the respondents to show as to why no action had been taken by the competent authority for more than a decade to cancel the non-agricultural permission granted earlier for breach of conditions. instead, for failure on the part of the executive in taking appropriate action at the relevant, the entire blame is sought to be laid at the door of a newly elected body. a member can be said to be guilty of misconduct if despite having knowledge that a particular act is prohibited, he had participated in the proceedings and voted for such action to be taken. mere participation in a meeting and passing a resolution granting development permission without anything more being brought on record cannot be said to be misconduct. misconduct would include an intention to do a wrong. the earlier instructions were issued to the then sarpanch and the subsequent communication was addressed to the talati-cum-mantri of the panchayat. it is the specific case of the appellants that they were never informed of the aforesaid directions of the state government. the record does not indicate that the directions of the state government had ever been brought to the notice of the members. in such a situation, no bad intention or motive can be attributed to the appellants that despite being aware of the instructions, they had gone ahead and granted building permissions. as held by the supreme court in the case of tarlochan dev sharma (supra) 'abuse of powers' implies a wilful abuse or an intentional wrong. hence, unless there is any material on record to indicate a wilful abuse or an intentional wrong it would not be possible to hold the appellants guilty of abuse of powers. according to the learned advocate for the competent authority, the non-agricultural permission having been granted in the distant past with a specific condition that construction should be completed within the time-frame stipulated thereunder, the non-agricultural permission would be deemed to have lapsed, and therefore, the panchayat has abused its powers by granting building permission in respect of land which did not have non-agricultural permission. it is an undisputed position that the said lands were subject to non-agricultural assessment. the authority vested with the power to grant non-agricultural permission has not taken any steps to cancel the permission on account of breach of permission. in such circumstances, it is stretching the matter too far to allege that the members are guilty of misconduct in passing resolutions for granting building permission in respect of non-agricultural land. it is contended on behalf of the competent authority that the members are deemed to be aware of all the instructions issued by the government, even if the same are addressed to the secretary or to the former sarpanch. in the opinion of this court, such deemed knowledge cannot be the basis for attributing bad intention on the part of the members so as to call for such drasticaction like removal from an elected post, that too with disqualification for a period of five years.charge nos. 3, 4 and 5:charge no. 3:non-agriculture permission had been given to rushil residency for plot nos. 33, 34 and 35 situated within the limits of the bopal gram panchayat on 6-6-1988. at the relevant time, the gram panchayat had not granted building permission. however, you after taking charge as sarpanch have disobeyed the instructions of the gujarat high court as well as the instructions of the state government in its revenue department and have granted building permission on 16-4-2007 and permitted construction to commence which depicts your misconduct as well as negligence and lack of devotion towards discharge of duties.charge no. 4:non-agricultural permission has been granted to siddheshwar residency in respect of survey no. 207 falling within the jurisdiction of the bopal gram panchayat on 6-7-1994. the gram panchayat, at the relevant time, had not granted building permission. however, you after taking charge as sarpanch have disobeyed the instructions of the gujarat high court as well as the instructions of the state government in its revenue department and have granted building permission on 25-4-2007 and permitted construction to commence which depicts your misconduct as well as negligence and lack of devotion towards discharge of duties.charge no. 5:non-agricultural permission has been granted to sargam construction in respect of survey no. 541/a falling within the jurisdiction of the bopal gram panchayat on 18-8-1998. the gram panchayat, at the relevant time, had not granted building permission. however, you after taking charge as sarpanch have disobeyed the instructions of the gujarat high court as well as the instructions of the state government in its revenue department and have granted building permission on 2-5-2007 and permitted construction to commence which depicts your misconduct as well as negligence and lack of devotion towards discharge of duties.in respect of the charge no. 3, the explanation tendered by the appellants was that upon perusal of the proceedings book of the bopal gram panchayat in relation to 16th april, 2007, on which date building permission is alleged to have been granted in favour of rushil residency, no such building permission appears to have been granted. hence, it appears that the sarpanch has directly issued building permission without any resolution of the gram panchayat.in reply to charge no. 4, it was a case of the appellants that no meeting of the bopal gram panchayat had taken place on 25th april, 2007 on which date it is alleged that building permission has been granted in favour of siddheshwar residency, and that the same may be verified from the record of the gram panchayat.in reply to charge no. 5, it was the case of the appellants that as per the notice, building permission had been granted vide rajachitthi dated 2-5-2007. however, upon perusal of the proceedings book of the gram panchayat, no such building permission has been granted, nor was any meeting held on 2-5-2007.the findings recorded by the district development officer in connection with the charge nos. 3, 4 and 5 are as follows:looking to the explanation given in respect of charge nos. 3, 4 and 5 as well as upon verification of the record, this resolution does not appear to have been passed in the meeting on 16-4-2007. hence, this explanation can be partly accepted. however, as per the provisions of section 104(4) 'whoever erects or re-erects or commences to erect or re-erect any building without such permission or in any manner contrary to the previsions of sub-section (1) or any bye-law in force, or any conditions imposed by the panchayat shall, on conviction be punished with fine, which may extend to two hundred rupees and in the case of a continuing contravention, he shall be liable to an additional fine which may extend to twenty rupees for each day during which such contravention continues after conviction for the first such contravention' hence, the gram panchayat should issue notice to those who put up unauthorized constructions. the member has not got any kind of notice issued against those carrying out unauthorized constructions in 32 cases. besides, the non-agricultural permission granted by the taluka/ district panchayat contains a condition that the construction should commence within six months and be completed within three years. if construction is not commenced and completed within such period, it is a case of breach of condition. in view of the provisions of rule 101 of the gujarat revenue rules as well as the land revenue code, prior to granting building permission, the gram panchayat should send a proposal to the competent authority in respect of the breach of condition. out of the total 58 cases, proposals for breach of condition have not been sent even in a single case. thus, the member has displayed negligence and lack of devotion towards his duty and has abused his powers and as such he has persistently been negligent in following the provisions of the gujarat panchayats act. therefore, his explanation cannot be accepted.as is apparent from the findings recorded by the district development officer, he has accepted the explanation tendered by the appellants and found that no meeting had taken place on the date when the resolutions were said to have been passed. however, despite the aforesaid position, he has only partly accepted the explanation, and has thereafter, proceeded to record findings of guilt on totally new grounds, which were not germane to the allegations levelled in the show-cause notice. whereas the charge was in respect of passing resolutions granting building permission, the district development officer has held the appellants to be guilty of negligence and lack of devotion towards their duties as well as abuse of powers on the ground that in view of the provisions of section 104(4) of the act, it was the duty of the appellants to prevent unauthorized constructions; that in relation to 32 cases, wherein unauthorized constructions were going on, the members had not got any notice issued to such persons; and that the attention of the taluka panchayat was not drawn to the fact that there was breach of non-agricultural permissions. thus, though the charges pertain to grant of building permission, findings of guilt are recorded for not taking action against unauthorized constructions. moreover, the findings recorded by the district development officer refer to the provisions of section 104(4) of the act which pertain to punishment in case of conviction in case of contravention of the provisions of sub-section (1) of section 104. insofar as the duties of the panchayat are concerned, the same are provided under sub-section (5) thereof. hence, it appears that district development officer has proceeded on a basic misconception about the provisions of section 104 of the act. the reference to rule 101 of the gujarat land revenue rules also appears to be misconceived, inasmuch as rule 101 provides for 'maximum fine leviable for unauthorised use for building brick making etc' and have no relevance to the said charge. the findings recorded by the district development officer therefore, have no nexus to the charges levelled against the appellants, and accordingly, stand vitiated on account of non-application of mind as well as on the ground that the same are beyond the scope of the charges levelled in the show-cause notice.charge nos. 6 and 7:charge no. 6:the gram panchayat has not granted building permission in respect of lands bearing survey nos. 278, 251, 252, 639, 666, 668, 235/b, 281, 635, 615, 634/b, 186/8/6, 551/b, 560, 558, 255/d/2, 373, 309, 310, 243, 309, 310, 325, 270, 32/a/243, 310, 288/a, 289/a/b/c, 500, 504, 506, 575, 668 and 1822, situated in bopal gram panchayat, despite which constructions are going on. however, no steps have been taken by you for preventing such constructions. hence, by conniving with the persons who are carrying on such constructions, you have shown negligence in the discharge of your duties.charge no. 7:despite the fact that the opinion of the town planner sanctioning the plan in respect of survey nos. 251, 252, 639, 281, 635, 615, 347, 634/b, 186/8/6, 544/b, 414/b and 661 situated in bopal gram panchayat has not been obtained, constructions are going on over the said survey numbers. however you have not taken any steps to prevent such constructions. hence, by conniving with the persons who are carrying on such constructions, you have shown negligence in the discharge of your duties.in reply to charge nos. 6 and 7, the explanation tendered by the petitioners was to the effect that it was the duty of the talati-cum-mantri to stop the constructions going on in the survey numbers enumerated therein and to prepare papers under the provisions of the land revenue code in connection with the unauthorised constructions and inform the higher authorities about the same.the findings recorded by the district development officer in connection with charge nos. 6 and 7 are as follows:the explanation given by the sarpanch in respect of issue nos. 6 and 7 cannot be accepted. however, as per the provisions of section 104(4) 'whoever erects or re-erects or commences to erect or re-erect any building without such permission or in any manner contrary to the provisions of sub-section (1) or any bye-law in force, or any conditions imposed by the panchayat shall, on conviction be punished with fine, which may extend to two hundred rupees and in the case of a continuing contravention, he shall be liable to an additional fine which may extend to twenty rupees for each day during which such contravention continues after conviction for the first such contravention' hence, the gram panchayat should issue notices to those who put up unauthorized constructions. it is not only the function of the talati-cum-mantri to take action for issuance of notice, but provision has also been made under section 104 of the gujarat panchayats act, 1993 for the gram panchayat to take steps for issuance of notice. the talati-cum-mantri has been suspended from service for being negligent in the discharge of his duties. hence, the defence that it is the responsibility of the talati-cum-mantri cannot be accepted. the member does not appear to have made any representation at any level to halt the unauthorized construction. thus, the member has shown negligence' and lack of devotion towards his duties and abused his powers and has been persistently negligent in abiding by the provisions of the gujarat panchayats act.according to the district development officer, it is the duty of the gram panchayat to issue notices to those who put up unauthorized constructions. that it is not only the function of the talati-cum-mantri to take action for issuance of notice but also the duty of the gram panchayat. thus, even according to the district development officer the duties under section 104 of the act are imposed on the gram panchayat. despite the aforesaid position, the district development officer has found each individual member to be guilty of negligence and lack of devotion towards his duties and abuse of powers as well as being persistently negligent in implementing the provisions of the act on the ground that the member has not drawn the attention of the higher authorities to the unauthorized constructions. in this regard, the provisions of section 252 of the act may also be noticed which read as under:252. default in performance of duty.:(1) if at any time, it appears to the district panchayat that any panchayat subordinate to it, has made default in the performance of any duty imposed on it by or under this act, it may order the duty to be performed within a specified period, and if the duty is not performed within the period specified, the district panchayat may appoint a person to perform it, and direct that the expense of performance shall be paid by the defaulting panchayat within such period as the district panchayat may fix.(2) if the expense is not so paid, the district panchayat may direct the person in custody of the fund of the panchayat to pay such expenses, or so much thereof as is possible, from the balance of such fund in his hands, and such person shall pay such expense and part thereof accordingly.(3) if at any time it appears to the state government or any officer authorised by the state government in this behalf, that a panchayat has made default in the performance of any duty and that the district panchayat has failed or neglected to take action under sub-section (1), the state government or the officer authorised, as the case may be, may take such action as could have been taken by the district panchayat under sub-section (1) and (2).(4) the district panchayat or the officer authorised, as the case may be, shall forthwith report to the state government every case occurring under this section and the state government may revise or modify any order made therein, and make in respect thereof, any other order which the district panchayat could have made.(5) an officer authorised in this behalf by the state government by a general of special order shall, in respect of district panchayat, have the same powers as the district panchayat has in respect of the panchayat subordinate to it under this section.thus, under the scheme of the act, in case where it comes to the notice of the district panchayat that any panchayat subordinate to it, has made default in the performance of any duty imposed on it by or under the act, it may order the duty to be performed within a specified period and if the duty is not performed within the period specified, the district panchayat may appoint a person to perform it. in case the district panchayat fails or neglects to take action, the state government or any officer authorised by the state government in this behalf can take such action as could have been taken by the district panchayat. thus, the act itself makes provision for certain checks and balances. if at the lowest level action is not taken, the same is required to be taken by the higher authorities. in the present case, though the district panchayat did order that the duties be performed, unfortunately the same were directed solely against the talati-cum-mantri, who appears to have failed to draw the attention of the members of the panchayat to the same. in case of failure of the gram panchayat to act as directed, it was the duty of the district panchayat to take necessary action as envisaged under sub-section (1) and (2) of section 252, and in case of failure of the district panchayat, the duty of the state government. in the present case-except for issuing directing the talati-cum-mantri vide letter dated 16-3-2007 no further steps appear to have been taken by the superior authorities. besides, if despite the village panchayat being so directed, it persistently fails in performing its duties, a case would be made out for taking action under section 253 of the act. in the facts of the present case, except for the communication dated 16-3-2007 addressed to the talati-cum-mantri, there is nothing to show that the attention of the panchayat was ever drawn to the unauthorized constructions, so as to hold that the panchayat has persistently defaulted in the discharge of its duties. it may also be pertinent to note that though the charge only speaks of negligence towards their duties, the appellants have been held to be guilty of displaying negligence and lack of devotion towards their duties as well as abuse of powers and persistent negligences in abiding by the provisions of the act.charge no. 8:in the context of the instructions dated 1-5-2006 of the state government in its revenue department, prohibiting grant of non-agriculture permission within the limits of bopal gram panchayat, this office had vide communication dated 16th march, 2007 directed that unauthorized constructions going on within the bopal village be stopped immediately, and that notices be issued to the persons carrying on such constructions and that cases be prepared under the bombay land revenue code and proposal be forwarded within 15 days to the taluka development officer, dascroi. however, you have not taken any steps in this regard displaying negligence in the discharge of your duties.in reply to charge no. 8, it was the specific case of the petitioners that the instructions dated 1-5-2006 of the state government in its revenue department as well as the letter dated 16th march, 2007 were not placed before the gram panchayat for their perusal by the talati-cum-mantri, nor was the attention of the gram panchayat drawn to the same. besides, the notices in this regard are to be given by the talati-cum-mantri and the papers in respect of the unauthorised constructions are also required to be prepared by the talati-cum-mantri. hence, the charge does not pertain to the members of the gram panchayat.it is further stated in the reply that the body has come into existence on 17-2-2007 and the directions dated 15-2-2006 of the hon'ble high court and the instructions dated 1-5-2006 of the revenue department have not been brought to their notice by the talati-cum-mantri or the ex-sarpanch. that after 17-2-2007, in none of the meetings has the question of granting rajachitthi been discussed in their presence nor was the issue included in the agenda. that upon receipt of the notice under section 57(1) of the act, they had checked the proceedings of the gram panchayat and it is apparent that the resolutions regarding grant of rajachitthi have been written after the meeting was over. it is also stated that the members would welcome strict action being taken against unauthorized constructions and that the district development officer should form a team of government officers and after conducting site inspection take steps on a war-footing and that they would gladly co-operate with such a team.in relation to charge no. 8, the district development officer has recorded the following findings:the explanation of the delinquent cannot be accepted. the attention of the sarpanch, gram panchayat, bopal should have been drawn to halt/prevent the unauthorized constructions going on in bopal village. such issue should be raised in the meeting. even then if the sarpanch does not take any steps in this regard, representation in this regard should be made at the taluka/ district level. from the record, no such representation appears have been made at any level. moreover, gram panchayat, bopal had in its meeting held on 8-3-2007 vide resolution no. 15 granted development permission to baleshwarkrupa. no objection has been raised against such resolution.in view of the directions issued by the hon'ble high court in its judgment dated 15-2-2006 rendered in special civil application no. 14128 of 2005 as well as in the context of the instructions issued by the state government in its revenue department, this office had vide letter no. msl/jmn/v/ 2430 to 37 of 2006 dated 8-6-2006 sent the same to the gram panchayat for compliance thereof, however, the gram panchayat by granting building permission at its whim in cases where non-agricultural permission had been granted earlier as well as by not preventing unauthorized constructions has committed breach of the provisions of the gujarat panchayats act, and it is proved from the aforesaid record that it has exhibited grave negligence, lack of devotion, abuse of powers and has persistently failed in complying with the provisions. moreover, petitioner shri pravinbhai talakshibhai kotak has filed special civil application no. 12282 of 2007.a perusal of the charge clearly shows that the same is regarding non-compliance with the directions issued vide communication dated 1-5-2006 addressed to the then sarpanch as well as the communication dated 16-3-2007 issued to the talati-cum-mantri. in the circumstances, the learned advocate for the appellants were justified in contending that the same does not pertain to the members of the gram panchayat. as noted hereinabove, there is nothing on record to indicate that the attention of the members of the gram panchayat was ever drawn to the aforesaid directions, which in any case were not issued to them.a perusal of the findings recorded by the district development officer makes it clear that even according to the district development officer, it was the collective duty of the gram panchayat to draw the attention of the sarpanch to the unauthorised constructions going on in bopal village. the district development officer has further recorded that despite the directions issued by this court in its judgment dated 15-2-2006 as well as the instructions dated 8-6-2006 of the state government in its revenue department, the gram panchayat had granted building permissions and had not taken any action of preventing unauthorized constructions, and thereby, exhibited grave negligence and lack of devotion in the discharge of its duties and abuse of powers, and had persistently failed in complying with the provisions of the act. thus, the finding is in respect of the failure of the gram panchayat and not the individual member of the panchayat. it may also be pertinent to note that in the findings recorded by the district development officer, he has referred to special civil application no. 12282 of 2007 filed by one shri pravinbhai talaksibhai kotak which appears to have weighed upon the district development officer while passing the said order.in this regard, it would be pertinent to set out certain facts in relation to special civil application no. 12282 of 2007. the said petition had been filed by one pravinbhai talaksibhai kotak claiming to be the owner of agricultural land situated in bopal village. the petitioner had prayed for a direction against the respondents there into issue non-agricultural permission in respect of the lands owned by him. in those proceedings, the court had vide order dated 10-5-2007 called upon the respondents to inform the court as to what steps had been taken by them pursuant to the directions issued by the division bench of this court in special civil application no. 14128 of 2005 on 15th february, 2006. on 2nd august, 2007, the court recorded as follows:learned government pleader made available a copy of the minutes of the meeting dated 31-7-2007 held under the chairmanship of the chief secretary for perusal.in the minutes, at point no. 1, it is recorded that, as in number of cases in bopal village, it has come to the notice of the authorities that without obtaining n.a. permission, the builders have commenced their construction activity, the authorities propose to take strict action against them.the matter is adjourned to 9-8-2007 to report the steps taken against the builders.in its order dated 9th august, 2007, the court passed the following order:mr. sunit shah, learned government pleader, informs the court that, after the meeting took place on 31-7-2007, the authorities have identified four cases, wherein without grant of n.a. permission, the panchayat has issued permission to put up construction. taking serious note of that, the district development officer has issued a notice under sub-section (1) of section 57 of the gujarat panchayats act, 1993. a copy of that notice is made available for perusal of this court, which shows that the hearing is fixed on 17-8-2007. the learned government pleader mr. shah and the learned advocate appearing for the respondent-district development officer assures this court that, after the hearing takes places on 17-8-2007, the law will take its own course and necessary action will be taken pursuant thereto.let the matter be listed on 23-8-2007.in the context of the proceedings of special civil application no. 12282 of 2007, it may be pertinent to note that the show-cause notice in the present case had been issued on 7th august, 2007 immediately after the order dated 2nd august, 2007 referred to hereinabove had been passed in the said petition. it may also be pertinent to note that vide the order dated 2nd august, 2007, the matter was adjourned to report steps taken against the builders, whereas a perusal of the order dated 9th august, 2007 clearly indicates that what was reported before the court was regarding the steps taken against the gram panchayat and not against the builders. besides, the statement made by the government pleader before the court stating that the authorities have identified four cases, wherein without grant of non-agricultural permission, the panchayat had issued permission to put up constructions also, does not appear to be correct, as all the charges in the show-cause notice indicate that there were existing non-agricultural permissions albeitgranted in the distant past, and not that no non-agricultural permissions had been granted in respect of the said lands.thus, it is apparent that the present proceedings are a direct offshoot of special civil application no. 12282 of 2007 and that the newly elected gram panchayat has been made to bear the brunt of the omissions and commissions of the earlier body as well as the state authorities.be that as it may, it cannot be gainsaid that unauthorized constructions were going on within the jurisdiction of the bopal gram panchayat and as such it was the duty of the gram panchayat to control the same. however, one cannot overlook the fact that this was a newly elected body and as is apparent from the facts noted above their attention had not been drawn to the instructions of the state government or to the orders passed by this court. in the circumstances, though it cannot be stated that there was no default on the part of the gram panchayat in the discharge of its duties, it is equally not possible to state that the default was so grave that it could be stated that the panchayat has abused its powers or has made persistent default in the performance of the duties imposed on it or functions entrusted to it under any provision of the act or any other law for the time being in force so as to call for invocation of powers under section 253 of the act. merely because within its short tenure the panchayat had not taken any action for controlling the unauthorized constructions, is no reason to assume that the members of the panchayat have connived with the builders. it would certainly be a sad day for democracy, should the entire elected body connive in illegal activities so as to invite action under section 57 of the act against each of the members. in the light of the facts noted hereinabove, it is apparent that none of orders made by the state government or the district panchayat were directed at the gram panchayat, hence it cannot be said that the panchayat had persistently disobeyed any orders made under the act by the state government so as to fall within the ambit of section 253 of the act.at this juncture, it may be pertinent to note that on more or less similar grounds, action had also been taken against the sarpanch and in exercise of powers under section 57(1) of the act, the sarpanch had also been removed. the said order had been confirmed by the additional development commissioner, the learned single judge as well as by this bench in letters patent appeal. however, on facts as well as law, the sarpanch stands on a totally different footing than the members. under the act, the executive powers of the panchayat have been vested in the sarpanch. besides a perusal of the show-cause notice indicates that most of the charges pertain to the sarpanch. also on facts, the district development officer has found that certain building permissions had been granted without corresponding resolutions of the gram panchayat. hence, insofar as the sarpanch is concerned, the ingredients of section 57 of the act are attracted.35. the main contention raised on behalf of the appellants, is that on account of collective defaults on the part of the village panchayat the district development officer could not have taken action for removal of members under section 57(1) of the act and that on the facts of the present case power under section 253 alone could have been invoked. dealing with the said contention, the learned single judge has held as follows:[36] last contention of the counsel of the petitioners that it was a case wherein power under section 253 alone could have been invoked needs to be addressed to.[37] section 253 of the said act insofar as same is relevant for our purpose reads as follows:253(1) if, in the opinion of the state government, a panchayat exceeds or abuses its powers or is incompetent to perform or makes persistent default in the performance of the duties imposed on it or functions entrusted to it under any provision of this act or by or under any other law for the time-being in force, or fails to obey an order made under this act by the panchayat superior thereto or by the state government or any officer authorised by it, under this act or persistently disobeys any of such orders, the state government may, after consultation with the district panchayat in the case of a panchayat subordinate to it and after giving the panchayat an opportunity of rendering an explanation, by order in the official gazette:(i) dissolve such panchayat, or(ii) supersede such panchayat for the period specified in the order:provided that such period shall not be longer that six months or the residual period of duration of such panchayat whichever is less;provided further that the state government may subject to the preceding proviso from time to time after making such inquiry as it may consider necessary by an order published in the official gazette extend the period of supersession of such panchayat until such date as may be specified in the order or by like order curtail the period of supersession.on the other hand, relevant portion of section 57 of the said act reads as follows:57(1) the competent authority may remove from office any member of the panchayat, the sarpanch or, as the case may be, the upa-sarpanch thereof, after giving him an opportunity of being heard and giving due notice in that behalf to the panchayat and after such inquiry as it deems necessary, if such member, sarpanch or, as the case may be, upa-sarpanch 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 function under this act or has become incapable of performing his duties and functions under this act. the sarpanch or, as the case may be, the upa-sarpanch, so removed may at the discretion of the competent authority also be removed from the membership of the panchayat.[38] short question is whether in the present case, was it not open for district development officer to invoke powers under section 57(1) of the said act.[39] section 253 of the said act gives power to state government to dissolve the panchayat or supersede such panchayat for a period not exceeding six months or the residual period of duration of the panchayat, if in the opinion of the government, a panchayat has exceeded or abused its powers or is incompetent to perform or makes persistent default in the performance of duties imposed on it or functions entrusted to it under the provisions of the act.[39.1] section 57 of the said act on the other hand, permits the competent authority to remove from office any member, sarpanch or upa-sarpanch of panchayat, if he has been guilty of misconduct in discharge of his duties or of any disgraceful conduct or abuses his powers or make spersistent default in performance of his duties and functions.[39.2] section 253 thus pertains to dissolution or supersession of panchayat for specific reasons. section 57 on the other hand, pertains to removal of a member, sarpanch or upa-sarpanch as the case may be on the ground mentioned therein. nothing contained under sub-section (1) of section 253 can be interpreted as to mean that in a given case where case for dissolution or supersession of panchayat is made out, powers under section 57(1) of the said act cannot be exercised by the competent authority, if ingredients contained therein are satisfied. as noted, section 253(1) pertains to dissolution and supersession of entire panchayat whereas section 57(1) pertains to removal of individual member or sarpanch or upa-sarpanch of the panchayat. in a given case, however, situation may arise where powers may overlap. there is no indication in the legislature that under such circumstances only the power for supersession or dissolution of the panchayat can be exercised and authorities cannot resort to removal of individual members. any other interpretation may lead to incongruent situation. if only some of the members of panchayat remain present during a meeting and pass unauthorized or impermissible resolution thereby giving rise to situation envisaged under section 253 of the said act, could it be held that in such a case either the entire panchayat can be dissolved or superseded or no action individually can be initiated? in such a case, it would always be open for the authorities to examine the conduct of individual members and ascertain whether his removal under section 57(1) would be justified. superseding or dissolving panchayat for the act or omission of some of the members would injuriously affect members who may not be present during such meeting or may even have opposed unauthorized or impermissible resolutions.[40] under the circumstances, i do not find that district development officer lacked authority or jurisdiction to act under section 57(1) of the said act.35.1. a perusal of the provisions of sections 57 and 253 of the act shows that power under section 57 of the act can be exercised by the competent authority for removing any member of the panchayat, the sarpanch or the upa-sarpanch if he or she is(i) guilty of misconduct in the discharge of his duties or(ii) of any disgraceful conduct or(iii) abuses his powers or(iv) makes persistent default in the performance of his duties and functions under the act or(v) has become incapable of performing his duties and functions under the act.in exercise of power under clause (4) of section 2 of the act, the government of gujarat has appointed that the district development officer to perform the functions of a competent authority under sections 57(1) and (2) of the act. in exercise of powers under sub-section (1) of section 271 of the act, the government of gujarat has delegated its powers conferred by section 57(3), that is, the powers to hear the appeal against an order of removal, on the additional development commissioner.35.2. under section 253 of the act, the state government, after consultation with the district panchayat, is empowered to dissolve or supersede a panchayat if in its opinion,(i) the panchayat exceeds or abuses its powers or(ii) is incompetent to perform or makes persistent default in the performance of the duties imposed on it or functions entrusted to it under any provision of the act or by or under any other law for the time-being in force, or(iii) fails to obey an order made under the act by the panchayat superior thereto or by the state government or any officer authorised by it, under the act or(iv) persistently disobeys any such orders.in exercise of powers under section 271(1) of the act, the state government has delegated the powers conferred on it by section 253 of the act on the development commissioner.35.3. a conjoint reading of the aforesaid provisions makes it clear that the power conferred upon the competent authority under section 57 is to be exercised against a member, sarpanch or upa-sarpanch when any of the contingencies enumerated therein arise, whereas the power under section 253 of the act is to be exercised by the state government against the panchayat as a whole, in case any of the contingencies enumerated therein arise.35.4. as similar issues have been dealt with by this court earlier, it may be pertinent to refer to the case-law in this regard.35.5. a learned single judge of this court in the case of kamlaben v. additional development commissioner (supra) has while interpreting the provisions of section 57 of the act held that if the allegations have to do with the discharge of the functions by the panchayat, i.e., body as a whole on the basis of resolutions passed by the panchayat, no single member can be held liable for such allegations so as to make him or her suffer removal from an elected office. unless and until there is something personal against the elected office-bearer sought to be removed, section 57(1) of the act cannot be invoked. for the purpose of removing an elected office bearer, there must be concrete credible material against him in person which must be germane to the grounds of misconduct etc. as mentioned in section 57(1) of the act.35.6. in the case of laladhar pragji and ors. v. state of gujarat and ors. : 1996 (2) glr 2, the allegation against the petitioners therein was that when they were members of the panchayat at the relevant time, the panchayat did not take decision of levying taxes on lands and buildings as was incumbent upon it under the provisions of section 178(1) of the said act. the learned single judge observed that the duty to levy a tax on buildings and lands was statutorily cast upon a gram panchayat by the mandatory provisions of section 178(1a) of the said act. a gram panchayat is a body corporate having a perpetual succession and a common seal as provided by section 7 of the said act. a gram panchayat has to exercise such powers, perform such functions and duties and has such responsibility and authority as are provided by or under the said act or any other law for the time-being in force subject to the control of the state government and the competent authority, as provided under section 8(4) of the said act. thus, the duty which is cast upon a gram panchayat under section 178(1a) making it compulsory for the panchayat to levy a tax on buildings and lands is not on any individual member of the panchayat but on the panchayat as a whole which takes a collective decision at its meeting. in the process, it has to follow the provisions of the gujarat gram and nagar panchayat taxes and fees rules, 1984. the consequence of failure of statutory duty cast upon a panchayat is provided for in section 297 of the said act and may entail dissolution or supersession of a panchayat, as provided therein. from failure of duty by a gram panchayat due to its not levying tax on buildings and lands under section 178(1a) of the said act which may entail action against the panchayat, it will be a far-fetched conclusion to hold that any loss has been caused of money or other property of the panchayat as a direct consequence of any misconduct or gross negligence on the part of a member of such panchayat. imposing liability on individual members under sub-section (2) of section 317 in cases where panchayat as a whole is guilty of in action may lead to consequences not intended by the provisions of the said act qua such members. the panchayat collectively takes decisions for discharge of its duties and its failure to discharge the duty cannot be attributed to a single member.35.7. similar view has been taken by learned single judges of this court in the case of udaysinh shankersinh zala v. s.d. vadera : 1996 (2) glr 349 as well as in the case of kanakbhai narsangbhai padhar v. state of gujarat 2002 (3) glh 739.35.8. on a conspectus of the principles enunciated in aforesaid decisions, it is apparent that in case of individual default the competent authority is empowered to resort to the provisions of section 57(1) of the act whereas when the allegation is in connection with the duties imposed on the panchayat as a whole it is not permissible for the competent authority to take action against an individual member. however, in such cases the state government is empowered to take action against the panchayat as a whole under section 253 of the act.35.9. it would therefore, be necessary to refer to certain provisions of the act to ascertain as to whether the defaults alleged are individual defaults of members or collective defaults of the gram panchayat.chapter v of the act makes provision for 'conduct of business, administrative powers and duties, property and fund and accounts etc. of panchayats.' part-i thereof, contains 'provisions relating to village panchayats' and is sub-divided into 7 categories, viz. (a) conduct of business : comprising of sections 91 to 98, (b) administrative powers and duties : comprising of sections 99 to 107, (c) property and funds : comprising of sections 108 to 113, (d) officers and servants of panchayats : comprising of section 114, (e) contributions to district development fund : comprising of section 115, (f) budget estimates : comprising of sections 116 to 120 and (g) audit of the accounts of village panchayats : comprising of section 121. insofar as the present case is concerned, the relevant provisions would be sections 99 and 104 of the act.section 99 provides for the 'administrative powers of panchayats' and reads thus:subject to the provisions of this act, it shall be the duty of each panchayat to make in the area within its jurisdiction, and so far as the fund at its disposal will allow, reasonable provisions in regard to all or any of the matters specified in schedule i.schedule i lays down the matters in respect of which it is the duty of village panchayats to make provisions.section 104 of the act as is relevant for the present purpose reads as under:104. control on erection of buildings:(1) no person shall erect or re-erect or commence to erect or re-erect within the limits of the village, any building without the previous permission of the panchayat.(2) xxx(3) xxx(4) whoever erects or re-erects or commences to erect or re-erect any building without such permission or in any manner contrary to the provisions of sub-section (1) or any bye-law in force, or any conditions imposed by the panchayat shall, on conviction be punished with fine, which may extend to two hundred rupees and in the case of a continuing contravention, he shall be liable to an additional fine which may extend to twenty rupees for each day during which such contravention continues after conviction for the first such contravention.(5) without prejudice to the penalty prescribed in sub-section (4), the panchayat may:(a) direct that the erection or re-erection be stopped,(b) by written notice require such erection or re-erection to be altered or demolished, as it may deem necessary,and if the requirement under clause (b) is not complied with within the time fixed in the notice, the panchayat may cause the alteration or demolition to be carried out by its officers and all the expenses incurred by the panchayat therefor, shall be recoverable in the same manner as an amount claimed on account of any tax recoverable under chapter x:provided that when a notice for bringing any action against any direction for the alteration or demolition of any erection or re-erection issued under this sub-section (9) has been given under sub-section (2) of section 270, alteration or demolition shall not be caused to be carried out until the expiry of the period of such notice and a further period of seven days.(6) xxx xxx xxx35.10. on a plain reading of the aforesaid provisions it is apparent that powers under section 99 and section 104 of the act are vested in the gram panchayat and not in the individual member. therefore, individual members cannot be held to be responsible for negligence in exercising powers which are vested in the panchayat as a whole. it is also not the case of the respondents that it is within the authority or power of an individual member to take action under section 99 or 104 of the act. in the circumstances, in respect of negligence in exercise of collective powers vested in the gram panchayat a member cannot be held to be individually liable, and therefore, any negligence in exercise of collective powers would not attract the provisions of section 57 of the act.35.11. under section 57(1) of the act, the legislature has vested the competent authority with the power to remove the sarpanch, upa-sarpanch and any member of the panchayat if he has been guilty of misconduct in 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 the act or has become incapable of performing his duties and functions under the act. thus, the power vested in the competent authority is in respect of individuals and no power is vested in the competent authority to remove the entire body. the vacancy created consequent to such removal is required to be filled up through fresh elections as laid down under section 61 of the act. whereas in case of collective default on the part of the panchayat in the discharge of duties imposed under the act, under section 253 of the act, the state government is conferred with the power of dissolution and supersession of the panchayat, consequently the entire elected body would cease to function. the legislature has, therefore, made provision for an arrangement in the interregnum by virtue of sub-section (4) of section 253 of the act, which provides for appointment of a person or persons by the state government, to exercise all the powers and duties of the panchayat during the period of dissolution or supersession. however, since the legislature has not contemplated removal of each and every member of the panchayat in exercise of powers under section 57(1) of the act, no similar provision is made under section 57 of the act. in fact, except for section 253(4) of the act there is no other provision for appointment of an administrator under the act. in absence of any such enabling power, the state government would not be competent to appoint an administrator except under section 253(4) of the act, which can be exercised only when the eventuality envisaged under section 253(1) arises. in the facts of the present case, there is neither dissolution nor supersession of the gram panchayat, so as to attract the provisions of sub-section (4) of section 253 of the act. in such a situation, the state government would not be competent to appoint an administrator. in the present case, the district development officer has in exercise of powers as competent authority under section 57 of the act removed all the members of the panchayat thereby creating a situation akin to dissolution of the panchayat. looking to the scheme of the act such action of the part of the district development officer is beyond the bounds of his authority.35.12. upon an overall view of the scheme of the act, a conjoint reading of the provisions of sections 57 and 253 of the act, indicates that the powers under section 57(1) and section 253(1) of the act are mutually exclusive, inasmuch as in case of default on the part of an individual member, the panchayat cannot be dissolved or superseded under section 253(1) of the act and in case of collective default on the part of the panchayat, the members cannot be held liable individually so as to attract the provisions of section 57(1) of the act. in view of what is discussed in the earlier paragraphs, it is evident that the defaults alleged in the show-cause notice pertain to the collective defaults on the part of the panchayat. i fully agree with the view expressed by a learned single judge of this court in the case of kamlaben v. additional development commissioner (supra) that unless and until there is something personal against the elected office-bearer sought to be removed, section 57(1) of the act cannot be invoked. for the purpose of removing an elected office-bearer, there must be concrete credible material against him in person which must be germane to the grounds of misconduct etc. as mentioned in section 57(1) of the act. in the present case, there is no concrete credible material against any of the appellants in person, hence, it was not permissible for the competent authority to exercise powers under section 57 of the act against the members of the panchayat individually. in effect and substance, the district development officer under the guise of exercising powers under section 57(1) of the act has in fact exercised powers vested in the state government under section 253 of the act, with much more drastic consequences, entailing disqualification of each of the members for a period of five years from the date of removal.35.13. examining the issue from another angle, the state government under section 253 is empowered to dissolve or supersede the panchayat. however, dissolution or supersession does not entail any disqualification insofar as the members of the panchayat are concerned, and the persons vacating office would be eligible for re-election. unlike removal under section 57 of the act, there is no automatic disqualification qua the members of the panchayat which is dissolved or superseded under section 253. thus, insofar as collective default is concerned, the intention of the legislature is that the entire body should be either dissolved or superseded, leaving it to the electorate to decide as to whether they would like to re-elect the outgoing members, in case they choose to contest the elections held consequent to dissolution or supersession of the panchayat under section 253. thus, as a consequence of any order passed by the state government under section 253 of the act, the members would have to vacate their office, without any further disqualification and would be entitled to contest the elections held consequent to their vacating office. whereas the exercise of powers under section 57(1) of the act against every member of the panchayat, has resulted into a situation akin to dissolution/supersession of the panchayat, which powers are conferred upon the state government alone. additionally by virtue of the provisions of section 30(1)(d) of the act each of the members stands disqualified for a period of five years from the date of such removal. thus, if the interpretation put forth on behalf of the respondents were to be accepted, it would result into wider powers being vested in the competent authority than the state government, inasmuch as the state government can only dissolve or supersede the panchayat whereas the competent authority can indirectly not only dissolve the entire body, but disqualify all the members from contesting elections for a period of five years. this could never have been the intention of the legislature.35.14. in the case of kamlaben rohitbhai patel v. additional development commissioner (supra), the learned single judge of this court has held that for the purpose of removing a sarpanch from holding the elective office, the officers who are charged with the statutory duties under the act cannot act in such a cursory manner with casual approach so as to curtail or truncate the tenure of the holder of an elective office. the elected representatives for the purpose of removal cannot be treated like government servants whose services are controlled at the pleasure of the president or governor under article 310 of the constitution. the officer charged with the power for removal under section 57 does not enjoy any such pleasure. the pleasure doctrine is a lien in case of elected representatives. if the elected persons are allowed to be removed on such jejune grounds, it would simply mean throttling down the principles of democracy in the local self-bodies and the elected representatives of the people like the petitioner would be made to lose their tenure at the altar of the arbitrary exercise of powers by the officers who have been charged with the duty under the act to at least address themselves to the real object behind such provision besides the grounds and procedure.35.15. removal of a democratically elected body is not a trifle. the executive, which is vested with such wide powers of removal is required to exercise the same with such degree of responsibility as is consistent with the powers conferred upon it. unfortunately, it is found that elected representatives are removed in respect of slightest defaults where correspondingly the employees liable for such defaults are visited with minor penalties or often go scot-free. the statute confers powers of control over the state government and its authorities and the same are required to be exercised in the light of the statutory provisions. ample safeguards are provided under the act for taking steps in case of any inaction on the part of the panchayat. without resorting to the same, the executive should not hasten to exercise powers of removal. in the facts of the present case, despite the fact that no case is made out for exercise of powers under section 57(1) of the act, the district development officer, under the guise of exercising powers under section 57(1) of the act, has in fact exercised powers which are vested in the state government under section 253 of the act, that too, in respect of defaults which do not call for such grave consequences like removal with disqualification, in the circumstances, such action on the part of the district development officer cannot be countenanced.36. in view of the above discussion, i am of the view that in the facts of the present case, the charges levelled against the appellants pertain to collective defaults on the part of the bopal gram panchayat, hence, this was a case for exercise of powers under section 253 of the act and not section 57(1) of the act. the impugned orders dated 21st august, 2007 passed by the district development officer apart from being beyond the bounds of his authority, also suffer from the vice of being beyond the scope of the show-cause notice as well as non-application of mind, and as such cannot be sustained and are required to be quashed and set aside. consequently, the appellate orders dated 15th october, 2007 of the additional development commissioner as well as the common judgment and order dated 25/26-8-2008 passed by the learned single judge confirming the orders of the district development officer, are also required to be set aside. it is ordered accordingly. the letters patent appeals are accordingly allowed.37. consequent to the setting aside of the orders of removal, normally as a necessary corollary the appellants would be required to be restored to their original position, however, considering the fact that the appellants were to a certain extent responsible for the delay in the hearing of the appeal, and in the meantime the elections to the vacancies created on account of their removal have already been held. the newly elected members appear to have taken charge and moreover, such newly elected members are not before us. hence, in their absence it would not be possible to pass any order adversely affecting their rights. in the circumstances, though the orders of removal are quashed and set aside, the court refrains from granting the consequential relief of reinstating the appellants to the office of members of the bopal gram panchayat. this view finds support from the decision of the apex court in the case of rameshwar prasad and ors. v. union of india and anr. : 2006 (2) scc 1 wherein despite holding the impugned proclamation to be unconstitutional, the court refused to exercise discretionary jurisdiction of ordering status-quo-ante to be restored by restoring the legislative assembly as it stood on the date of the said proclamation.