SCA/3219/2007 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 3219 of 2007 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 ? ========================================================= RAMANBHAI RAMSINHBHAI PARMAR - Petitioner(s) Versus MAMLATDAR (RURAL) & 6 - Respondent(s) ========================================================= Appearance : MR RAJESH K SHAH for Petitioner(s) : 1, MR SATYAM CHHAYA, AGP for Respondent(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1 - 7. MR HS MUNSHAW for Respondent(s) : 5, 7, ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 28/02/2007 ORAL JUDGMENT 1. The petitioner has preferred the petition for challenging the Notice dated 8.2.2006 issued by SCA/3219/2007 2/9 JUDGMENT the Mamlatdar for recovery of the amount of Rs.3,40,870/- from the petitioner under the Bombay Land Revenue Code. 2. Heard Mr.Shah, learned Counsel for the petitioner, Mr.Chhaya, learned AGP for the State Authorities – Respondents No.1 to 4 and for respondent Nos.5 and 6, though served, they have chosen not to appear. I have also heard Mr.Munshaw, learned Counsel for the newly added respondent No.7, D.D.O., Anand. All learned Advocates are heard for final disposal. 3. It appears that since certain observations were made by this Court in its order dated 25.3.2005 in SCA No.10881 of 2004 with Civil Application No.8256 of 2004 for vacating of the interim relief while examining the legality and validity of the order of removal under Section 57 of Gujarat Panchayats Act (hereinafter referred to as “the Act”), the District Development Officer communicated to the Mamlatdar to recover the amount of Rs.3,40,870/- being loss caused to the Gram Panchayat and the Mamlatdar, in turn, issued notice for recovery of the amount as per SCA/3219/2007 3/9 JUDGMENT the Bombay Land Revenue Code for recovery to the petitioner and under these circumstances, the present petition. As per the petitioner, the petitioner also preferred appeal under Section 203 of the Bombay Land Revenue Code before the Dy. Collector, however, the appeal was not entertained and, therefore, the petitioner was constrained to approach before this Court. 4. This matter was heard on the earlier occasion after issuance of the notice and on 13.2.2007, this Court had passed the following order:- “ It has been stated on behalf of the Mamlatdar, Anand by the learned AGP that the Taluka Development Officer vide communication dated 30.09.2005, intimated to the Mamlatdar that the proceedings be initiated under Section 267 of the Act and the Mamlatdar based on the said letter has issued notice to the petitioner for recovery of the amount. Prima facie it appears that there is no adjudication either under 267 of the Act or under Section 39A of the Bombay Land Revenue Code before the competent authority under SCA/3219/2007 4/9 JUDGMENT the Gujarat Panchayat Act or under the Bombay Land Revenue Code. In any case, such aspects will be further considered after District Development Officer, Anand is served with the notice and therefore the presence of the District Development Officer may be required. At this stage, Mr. Shah prays for joining the District Development Officer as party respondent No.7. Permission granted. Notice to the newly added party returnable on 28th February, 2007. District Development Officer shall report to this Court as to whether any adjudication has taken place under Section 267 of the Act before any competent authority of the Panchayat for fastening of the financial responsibility. If yes, the details thereof on the next returnable date. D.S. permitted.” 5. Thereafter, pursuant to the order passed by this Court, today Mr.Munshaw, learned Counsel for respondent No.7 – DDO, in presence of the DDO, declared before the Court that no proceedings are undertaken by DDO under Section 267 of the SCA/3219/2007 5/9 JUDGMENT Act for fastening of the financial responsibility and he submitted that the power for such purpose of holding inquiry and of ascertaining the financial responsibility under Section 267 of the Act are with the Mamlatdar. 6. Mr.Chhaya, learned AGP, during the course of the hearing, also placed on record the notification of the Government dated 26.7.1994 in exercise of the powers under the Panchayat Act, whereby the power under Section 267(2) are delegated to the Mamlatdar in the case of Village Panchayat. He further placed on record the communication dated 27.2.2007 from the Mamlatdar, Anand, informing that no procedure is undertaken for holding of the inquiry under Section 267 of the Act by the Mamlatdar. 7. Under the above circumstances, it appears that the matter is at the stage where, as per the DDO, there is financial loss caused by the petitioner in capacity as the Sarpanch of the Gram Panchayat and such financial loss was caused to the Gram Panchayat. Therefore, the DDO informed to the Mamlatdar for taking action SCA/3219/2007 6/9 JUDGMENT under Section 267 of the Act. As per the Scheme of 267 of the Act even if the liability is to be fastened upon the members of the Gram Panchayat, the inquiry is required to be held under Section 267(2) of the Act by the concerned authority and thereafter the directions can be issued calling upon such person to pay the amount to the extent of the loss caused or the waste or misapplication. After such direction issued at the conclusion of the inquiry, the said amount can be recovered as arrears of the land revenue. Further, the aggrieved person has right of appeal before the District Court against such decision of the Mamlatdar for fastening of the financial responsibility and for recovery of the amount under Section 267(4) of the Act. Therefore, without there being any inquiry held for such purpose by the Mamlatdar, upon mere communication made by the DDO to the Mamlatdar, recovery could not be affected as the arrears of the land revenue. 8. Mr.Chhaya, learned AGP, under the instructions of Mr.P.A.Khrishti, Dy. Mamlatdar, Anand SCA/3219/2007 7/9 JUDGMENT (Rural), declared before the Court that in view of the communication received by Mamlatdar from DDO, the Mamlatdar will hold an inquiry under Section 267(2) and the Mamlatdar thereafter take appropriate decision in accordance with law. Even otherwise also, as observed earlier, until the inquiry is held and the order is passed for fastening of the financial responsibility, the amount could not be recovered as the arrears of the land revenue. Further at the inquiry, which may be held by the Mamlatdar under Section 267(2) of the Act, the petitioner may raise all defence, as may be available in law and after considering the material available on record, the Mamlatdar will be required to take appropriate decision under Section 267 of the Act. At this stage, since the inquiry is yet to be held and the final order is yet to be passed under Section 267(2) of the Act, no further discussion may be required. However, in view of the aforesaid observations, the action of the Mamlatdar for recovering the amount as the arrears of the land revenue at this stage can be SCA/3219/2007 8/9 JUDGMENT said as not warranted under the law and such a recovery can be affected only after the decision is taken under Section 267(2) of the Act and such decision is not stayed by any higher forum known to law. 9. In view of the above I find that the following directions shall meet with the ends of justice:- (a) The Mamlatdar shall hold an inquiry under Section 267(2) of the Act after giving opportunity of hearing to the petitioner as well as to the other effected parties and then shall take final decision in accordance with law within some reasonable time, preferably within a period of six months from the date of receipt of the order of this Court. (b) In the event the decision of the Mamlatdar is against the petitioner, the petitioner may have remedy as may be permissible in law. SCA/3219/2007 9/9 JUDGMENT (c) If the order under Section 267(2) of the Act of the Mamlatdar is not stayed by any higher forum known to law, the Mamlatdar thereafter may proceed for recovery of the amount of the arrears of the land revenue. (d) In view of the aforesaid directions, the impugned notice issued by the Mamlatdar under Bombay Land Revenue Code for recovery of the amount of Rs.3,40,870/- would not survive and shall not be given effect. 10.The petition is disposed of in terms of the aforesaid directions. Rule made absolute accordingly. Considering the facts and circumstances, there shall be no order as to costs. Direct service is permitted. 28.2.2007 (Jayant Patel, J.) vinod