SCA/11390/2008 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 11390 of 2008 With SPECIAL CIVIL APPLICATION No. 11392 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ===================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ===================================================== PRAVINSING SHIVSING SANDHA - Petitioner(s) Versus STATE OF GUJARAT & 3 - Respondent(s) ===================================================== Appearance : HL PATEL ADVOCATES for Petitioner(s) : 1, MR UMANG OZA ASSISTANT GOVERNMENT PLEADER for Respondent 1, NOTICE NOT RECD BACK for Respondent(s) : 1 - 3. MR KIRTIDEV R DAVE for Respondent(s) : 4, MR RAHUL K DAVE for Respondent(s) : 4, ===================================================== CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL SCA/11390/2008 2/7 JUDGMENT Date : 14/10/2008 ORAL JUDGMENT 1. RULE. Mr. Oza learned Assistant Government Pleader waives service of rule on behalf of the respondent No.1 and Mr. Dave, learned counsel waives service of rule on behalf of respondent No.4, mainly contesting party and in view of the order passed by this Court, hereinafter presence of District Development Office may not be required since the order may not be adverse to him. 2. Only question to be considered in the present case is that whether the Additional Development Commissioner has committed error apparent on the face of the record in not further remanding the matter to the District Development Officer after setting aside the order passed by the District Development Officer or not ? 3. The short facts of the case appears to be that as the criminal case was filed against the concerned private respondent No.4, the District Development Officer had initiated action under Section 59 of the Gujarat Panchayat Act (herein after referred to as SCA/11390/2008 3/7 JUDGMENT the “Act”). It was found by the District Development Officer that the criminal case is pending pertaining to moral turpitude against the concerned respondent in one case, who was Sarpanch and in other case, who was Deputy Sarpanch. Therefore, ultimately, District Development Officer suspended the concerned private respondent as Sarpanch and Deputy Sarpanch as the case may be by passing separate order, both dated 25.7.2008. It appears that private respondent concerned carried the matter before the Additional Development Commissioner by preferring appeal under Section 59(3) of the Act. The Additional Development Commissioner in the appeal did observe that three reported decisions of this Court, are not considered and merely because the Criminal Case is filed against the person concerned, itself may not be sufficient per se, to exercise power of suspension, but it would be required for concerned Authority to examine as to whether there is prima facie involvement and as to whether such case can be said relevant to moral turpitude or not. It was recorded by the Additional Development Commissioner that the aforesaid inquiry, as required, was not undertaken by the District SCA/11390/2008 4/7 JUDGMENT Development Officer and therefore, he allowed the revision and set aside the order of District Development Officer. The pertinent aspect is that he did not remand the matter to the District Development Officer for reconsideration. It is under these circumstances, the petitioner has approached this Court by preferring present petition. 4. Heard Mr. Patel, learned counsel for the petitioner, Mr. Oza learned Assistant Government Pleader for the State and Mr. Dave, learned counsel for the concerned private respondent. 5. As such, on the aspect of the exercise of power by District Development Officer at his instance and the exercise of power by Additional Development Commissioner at appellate level are not in dispute. It also appears that the Additional Development Commissioner while exercising the appellate power, has jurisdiction to examine legality and validity of the order passed by the District Development Officer for suspending any member of Panchayat including Sarpanch and Deputy Sarpanch, as the case may be. However, the Appellate Authority, in his exercise of SCA/11390/2008 5/7 JUDGMENT such power, came to the conclusion that as there was no proper consideration of material as per settled legal position, it was further required by the Appellate Authority either to re-appreciate evidence as was available on record or in alternative, after having found infirmity in the order issued on non- consideration of relevant material by the lower Authority, it may be required by the Appellate Authority in exercise of powers for remanding the matter to the lower Authority for reconsideration. It is true that in every case when there is breach of principles of natural justice, reconsideration is not a must, but at the same time, if the Appellate Authority has not re-appreciated the evidence, nor recorded a different conclusion than as was recorded by the lower Authority and the Appellate Authority has concentrated in exercise of power only on the the aspect of non-consideration of the matter and proper material by lower Authority, it would be required for the Appellate Authority to set aside the order passed by the lower Authority and further to remand the matter to the lower Authority for reconsideration, may be in light of observations made SCA/11390/2008 6/7 JUDGMENT by the Appellate Authority and in accordance with law. 6. If the impugned orders are examined in light of the aforesaid position, it does appear that the Additional Development Commissioner has only allowed the appeal, has set aside the order, but has not further proceeded to exercise power for remanding of the matter to the District Development Officer and therefore, it can be said that the Additional Development Commissioner, while passing impugned order to that extent, has committed error apparent on the face of the record. 7. In view of the aforesaid, as it was required for Additional Development Commissioner to further remand the matter and he has failed to exercise powers on that aspect, it can also be said a jurisdictional error committed by the Additional District Development Commissioner, which may be required to be interfered with in a petition under Article 227 of the Constitution of India. 8. Hence, the impugned order passed by the Additional District Development Commissioner is SCA/11390/2008 7/7 JUDGMENT modified to the effect that the matter shall stand remanded to the District Development Officer for reconsideration on the aspect of suspension under Section 59 of the Gujarat Panchayat Act. The District Development Officer shall reconsider the matter in light of the observations made by the Appellate Authority read with decision referred to in the said order and also in accordance with law, after giving an opportunity of hearing to the concerned persons, who is Sarpanch or Deputy Sarpanch, as the case may be, as early as possible preferably within three months from the receipt of the order of this Court. It is also observed that if the order is adverse to the concerned private respondents, who is Sarpanch or Deputy Sarpanch as the case may be, the same shall not be implemented for a period of 10 days from its communication by Registered A.D. Post. 9. The petitions are allowed to the aforesaid extent. Rule is made absolute accordingly. No order as to costs. (JAYANT PATEL, J.) ynvyas