SCA/11761/2008 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 11761 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 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 ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================= KAMLESHKUMAR MOHANSINH MAHIDA - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================= Appearance : MR VK JOSHI for Petitioner(s) : 1, MR. UMANG OZA, A.G.P. for Respondent(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1, MR HS MUNSHAW for Respondent(s) : 2, MR HN BRAHMBHATT for Respondent(s) : 3, MR.D M.DESAI for Respondent(s) : 3, ========================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 27/11/2008 ORAL JUDGMENT SCA/11761/2008 2/5 JUDGMENT 1. Rule. Mr. Umang Oza, learned Assistant Government Pleader waives service of notice of Rule for respondent No.1. Mr. Chauhan with Mr. Munshaw, learned counsel for the respondent No.2 waives service of notice of Rule for respondent No.2 and Mr.Brahmbhatt, learned counsel for the respondent No.3 waives service of notice of Rule for respondent No.3. 2. With the consent of the learned counsels appearing for both the sides, the matter is taken up for final hearing today. 3. The short facts of the case appear to be that the petitioner filed complaint for the alleged misconduct committed by the respondent No.3. The District Development Officer examined the matter after calling for the record and the order dated 23.05.2008 came to be passed by the D.D.O., whereby it was found that huge loss is caused to the revenue of the Gram Panchayat, and also the misconduct, and therefore, the respondent No.3 is ordered to be removed as the Sarpanch of the Gram Panchayat. The respondent No.3 carried the matter before the Additional Development Commissioner under section 57 in appeal and the Additional Development Commissioner found that the matter has not SCA/11761/2008 3/5 JUDGMENT been properly by examining in detail by the District Development Officer. Therefore vide impugned order dated 29.08.2008, the appeal is partly allowed and the order by the D.D.O. is set aside with the direction to reconsider the matter as per the observations made in the order of the Additional Development Commissioner. It is under these circumstances the petitioner has approached to this Court by the present petition. The petitioner who is the member of the Gram Panchayat has approached to this Court by the present petition. 4. I have heard the learned counsels appearing for the petitioner and the respondents. 5. The main contesting parties are the petitioner and the respondent No.3, who is the beneficiary of the order. I would have recorded the reasons for interfering with the order to the extent of not creating the situation of reinduction of the respondent No.3 in to power. However, Mr. Brahmbhatt, learned counsel appearing for the respondent No.3 has submitted before the Court that the matter as such is remanded to the D.D.O. and therefore let the inquiry be completed by the D.D.O. within some reasonable time and till then the respondent No.3 shall not function as the Sarpanch SCA/11761/2008 4/5 JUDGMENT of the Gram Panchayat. Under these circumstances, I find that if the re-inquiry is to be undertaken by the District Development Officer as per the order of the Additional Development Commissioner and pending the inquiry if the respondent No.3 is not to assume the office as the Sarpanch, no prejudice will be caused either to the petitioner or to the post which was earlier held by the respondent No.3. Ultimately, after reconsideration the D.D.O. can take independent view of the matter on the basis of the material as may be available on record. In view of the aforesaid declaration made on behalf of the respondent No.3, no further reasons are required to be recorded. Even otherwise also when the matter is to be reconsidered by D.D.O. the appropriate evidence can be considered in light of the observations made by the Additional Development Commissioner. 6. Hence, the impugned order of the Additional Development Commissioner is modified to the extent that the order of removal for reconsideration shall continue to remain in operation but until the fresh decision is taken by the D.D.O. as per the observations made by the Additional Development Commissioner, the respondent No.3 shall not be entitled to SCA/11761/2008 5/5 JUDGMENT act or function or assume the charge as the Sarpanch of the Gram Panchayat. 7. It is also observed that the D.D.O. shall be at liberty to take independent view of the matter on the basis of the evidence as may be available on the record and the submissions as may be made by the respondent No.3 and he shall not be influenced by the present order for interim arrangement. 8. The District Development Officer shall complete the inquiry preferably within the period of 3 months from the receipt of the order of this Court. Petition is partly allowed to the aforesaid extent. Rule is made absolute accordingly. No order as to cost. Direct service is permitted. [JAYANT PATEL, J.] jani