LPA/113420/2007 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 1134 of 2007 In SPECIAL CIVIL APPLICATION No. 16546 of 2007 With CIVIL APPLICATION No. 9001 of 2007 In LETTERS PATENT APPEAL No. 1134 of 2007 For Approval and Signature: HONOURABLE MS. JUSTICE R.M.DOSHIT HONOURABLE MR.JUSTICE SHARAD D.DAVE ========================================================= 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 ? ========================================================= BHAVNABEN VITHALBHAI BALDHA & 2 - Appellant(s) Versus DEVELOPMENT COMMISSIONER & 1 - Respondent(s) ========================================================= Appearance : M/S THAKKAR ASSOC. for Appellant(s) : 1 - 3. MS VISHAN, AGP for Respondent(s) : 1, MR HS MUNSHAW for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MS. JUSTICE R.M.DOSHIT and HONOURABLE MR.JUSTICE SHARAD D.DAVE LPA/113420/2007 2/5 JUDGMENT Date : 24/07/2008 ORAL JUDGMENT (Per : HONOURABLE MS. JUSTICE R.M.DOSHIT) This Appeal preferred under Clause 15 of the Letters Patent arises from the order dated 29th June, 2007 made by the learned Single Judge in the above Special Civil Application No.16546 of 2007. The appellant Nos.1 and 2, then President and Vice President of the District Panchayat, Rajkot, were also the members of the appeal committee of the District Panchayat. In exercise of the powers conferred upon the appeal committee, the appellants granted stay against the order of the Taluka Development Officer, Rajkot made in respect of encroachment made by one Khimabhai Gokulbhai Patel on the Government land in village Kuvadva, Taluka – District Rajkot. The said order was made the subject matter of inquiry under Section 85 of the Gujarat Panchayats Act, 1993 (hereinafter referred to as “the Act”). Section 85 of the Act empowers the competent authority to remove from the office any member of Panchayat or President or Vice President if he has been “guilty of misconduct in the discharge of his duties or of any disgraceful conduct or abuses his powers or makes persistent default in the performance of his duties and functions” under the Act. By notification dated 26th July, 1994 issued by the State Government in exercise of the powers conferred by LPA/113420/2007 3/5 JUDGMENT Clause 4 of Section 2 of the Act, the powers under Section 85 of the Act have been delegated to the Development Commissioner. The Development Commissioner, after giving notice to the appellants and affording opportunity of hearing, by order dated 26th June, 2007, held that the appellants had abused their power and the authority by making order in favour of the aforesaid Khimabhai Gokulbhai Patel. In view of the said finding, the Development Commissioner directed removal of the appellants as Members of the Panchayat. Feeling aggrieved, the appellants preferred the above Special Civil Application No.16546 of 2007 which came to be dismissed by the learned Single Judge. Therefore, the present Appeal. In the present Appeal, the Development Commissioner has filed counter affidavit to deny the allegations made in the Appeal and to establish that due process was scrupulously followed and due opportunity was given to the appellants to defend the action initiated against them under Section 85 of the Act. The facts are not in dispute. Against the notice to remove encroachment issued by the Taluka Development Officer, the aforesaid Khimabhai Gokulbhai Patel had instituted Regular Civil Suit No.150 of 2006 in the court of the learned Civil Judge. Pending the Civil Suit, the Civil Court, by order dated 22nd June, 2006, rejected the application LPA/113420/2007 4/5 JUDGMENT for interim stay. Against the said order, the plaintiff had preferred Civil Misc. Appeal No.63 of 2006. The said Appeal was pending before the learned Fast Track Judge, Rajkot. The Appellate Court had not granted any relief in favour of the appellant plaintiff. These facts were brought to the notice of the appeal committee. Nevertheless, the appellants sitting in the appeal committee, contrary to the order made by the Civil Court, granted stay against the order for removal of encroachment made by the Taluka Development Officer. Until the order made by the appellants was carried further to the Development Commissioner, the said order was continued. When the said order was carried before the Development Commissioner, the appellants withdrew their order suo motu. It is evident that the appellants had misused their powers by granting relief in favour of the above referred Khimabhai Gokulbhai Patel, although, the said Khimabhai Gokulbhai Patel had approached the Civil Court and the Civil Court had refused to grant interim relief. The matter was at large before the Appellate Court. We are of the opinion that the Development Commissioner has rightly exercised the powers conferred by Section 85 of the Act. The finding of the Development Commissioner that the appellants had misused their position is also justified. The order removing the appellants as Members of the District Panchayat was within the power of the Development Commissioner. LPA/113420/2007 5/5 JUDGMENT The learned Single Judge has rightly dismissed the challenge to the aforesaid order dated 26th June, 2007 made by the Development Commissioner. No case for interference is made out. The Appeal is dismissed. Interim relief is vacated. Civil Application is disposed of. (Ms.R.M.Doshit,J) (Sharad D.Dave,J) pathan