LPA/842/2008 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 842 of 2008 In SPECIAL CIVIL APPLICATION No. 10263 of 2008 with CIVIL APPLICATION NO.9846 OF 2008 For Approval and Signature: HONOURABLE MR. JUSTICE MOHIT S. SHAH HONOURABLE MS.JUSTICE H.N.DEVANI ========================================= = 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 ? ========================================= = CHETANBHAI VIRJIBHAI DHAMECHA -SARPANCH - Appellant(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================= Appearance : MR BM MANGUKIYA with MS BELA A PRAJAPATI for Appellant MS SANDHYA NATANI, AGP for Respondent(s) : 1 - 2. MR HS MUNSHAW with MR G.C.BAGHEL for Respondent(s) : 3, ========================================= = CORAM : HONOURABLE MR. JUSTICE MOHIT S. SHAH and LPA/842/2008 2/9 JUDGMENT HONOURABLE MS.JUSTICE H.N.DEVANI Date : 18/12/2008 ORAL JUDGMENT (Per : HONOURABLE MR. JUSTICE MOHIT S. SHAH) This Appeal is directed against the judgment and order dated 11th August 2008 of the learned Single Judge dismissing the petition in which the appellant had challenged the order dated 7th June 2008 of the District Development Officer, Surendranagar District, removing the appellant from the office of Sarpanch of Village Kankavati in Surendranagar District under Section 57(1) of the Gujarat Panchayats Act, 1993 (hereinafter referred to as “the Act”), which order was confirmed by the Additional Development Commissioner on 21st July 2008. 2. The charge against the petitioner was that he had withdrawn a sum of Rs.9,000/- from the account of the Panchayat, out of which Rs.3,650/- was paid towards previous outstanding of the Panchayat without following proper procedure. It was further alleged that the remaining amounts were paid towards bills dated 7th April 2007 and 31st May 2007, for which rates were called for on 30th May 2007 and 31st May 2007. The rates of all the parties were identical and signatures and dates were not put on such quotations. It was, therefore, alleged that the appellant had collected the quotations after spending the amounts and thereby committed financial irregularities. It was also alleged that, when District LPA/842/2008 3/9 JUDGMENT Development Officer visited Panchayat Office on 5th June 2007, it was found that the quotations were not on record and the same could not be produced, and that, after the Taluka Development Officer presented the report, the quotations were later on created. 3. The petitioner replied to the show cause notice and submitted that there were no financial irregularities; that the Talati cum Mantri had not brought the correct procedure to his notice and that if at all there were any mistakes, they were of the nature of procedural mistakes. The District Development Officer passed the order of removal on 7th June 2008, which came to be confirmed by the Additional Development Commissioner in appeal on 21st July 2008. 4. The learned Single Judge dismissed the petition on the ground that the nature of defaults on the part of petitioner cannot be considered as mere procedural irregularities and in view of the findings of the authorities that the petitioner had created false record after the amounts were spent, the learned Single Judge dismissed the petition. 5. Mr.B.M.Mangukiya, learned advocate for the appellant has submitted that none of the authorities considered the facts that - (i) the appellant is a semi-literate person elected as Sarpanch on a seat reserved for S.E.B.C.; LPA/842/2008 4/9 JUDGMENT (ii) the appellant assumed the office of Sarpanch in January 2007 and is removed on the basis of alleged irregularities committed in May 2007; (iii) the amounts of Rs.3,550/- and Rs.3,350/- were required to be spent urgently for repairs of two electric motor pumps for supply of water to the village people, as per the bills on record; (iv) entries dated 31.8.2007 made in the daily cash book written by the Talati did refer to voucher numbers, bill numbers of the concerned agencies. Hence, there was no question of record created subsequently; (v) there was no question of the Sarpanch subsequently producing vouchers, bills or quotations before the Talati when payments were made as recorded in the daily cash book for 31.5.2008. Hence, the endorsements at the back of quotations and other documents that the petitioner produced the same before the Talati on 13.7.2007 could not be believed, especially when the endorsements were in the handwriting of the Talati and the petitioner was barely able to put his signature; (vi) there was no allegation of misappropriation or siphoning away of the Panchayat funds. It is submitted that, in view of the above, the harsh action of removal of the appellant from the elected office of Sarpanch of the village was not required to be resorted to. LPA/842/2008 5/9 JUDGMENT 6. The learned advocate for the appellant has placed reliance on the following decisions in support of his submissions : [a] Decision of the Supreme Court in the case of Tarlochan Dev Sharma v. State of Punjab and others, 2001(6) SCC 260. [b] Decision of this Court in the case of State of Gujarat & others v. Aniruddhsinh Mahipatsinh Jadeja, 2002(2) GLR 1174. [c] Decision of this Court in the case of Narabhai Veljibhai Chaudhary v. R.S.Vaghela and others, 1997(1) GLR 599. 7. On the other hand, Mr.H.S.Munshaw with Mr.G.C.Baghel, learned counsel for the respondent No.3 has opposed the appeal and submitted that both the statutory authorities having given their findings on questions of fact, it would not be open for this Court to interfere with the same. It is submitted that when the authorities have also given finding that the appellant had created false record after the amounts were spent, no further material or proof is required for removal of the appellant under Section 57(1) of the Act. 8. In view of the nature of the dispute between the parties, we had called upon Mr.Munshaw to produce the original record, files and registers of the Panchayat. In LPA/842/2008 6/9 JUDGMENT compliance with the said direction, Mr.Munshaw has produced the original vouchers file for the year 2007- 2008 (having 220 pages), daily cash book and the minutes book of the Gram Panchayat. From the daily cash book, it is clear that the appellant (original petitioner) had paid on 31st May 2007 the following amounts : Sr.No. Particulars Amount 01. Voucher No.2 - Patel Pump Agency, Dhrangadhra – paid towards [Bill No.79] sub – water supply Rs. 2,600/- 02. Voucher No.3 – Shri Hari Motor Rewinding, Dhragandhra – paid towards [Bill No.20] sub – water supply Rs. 3,550/- 03. Voucher No.4 – Shri Hari Motor Rewinding, Dhragandhra – paid towards [Bill No.15] sub – water supply Rs. 3,650/- T O T A L Rs. 9,800/- We also find from resolution No.2 dated 31.5.2007 recorded in the minutes book of the Panchayat that, all the bills received by the Panchayat from 20/1/2007 to 31/5/2007 were presented before the six members of the Panchayat present at the meeting on 31.5.2007 and the bills were unanimously sanctioned by the said resolution. 9. We have also perused the original voucher file and we find from the vouchers in the said file that the Talati cum Mantri received the receipts and quotations from the petitioner on 13th July 2007. On perusal of the endorsements on the back of the vouchers and receipts, it is apparent that the appellant is a semi-literate person LPA/842/2008 7/9 JUDGMENT who can barely sign his name. It is also necessary to note that the authorities have not disbelieved the appellant's case that the amounts were required to be spent towards the repairs of the electric motors for the water supply system of the Panchayat. Such repairs are to be carried out on an emergency basis and therefore, the Sarpanch or any other person in-charge of such services, would not be in a position to obtain quotations and go for repairs immediately. It is not the case of the respondent authorities that the amounts were not paid to the concerned agency, or that there was no breakdown in the electric motors installed for the water supply system of the Panchayat. 10.In the facts and circumstances of the case, we find that the appellant was elected as a Sarpanch in January 2007. The minutes book also shows that all the bills received by the Panchayat from the date of his assuming office of Sarpanch on 20th January 2007 till 31st May 2007 were placed before the panchayat meeting only on 31st May 2007. It is, therefore, apparent that the appellant is a semi-literate person not conversant with the office procedures. The appellant was elected on a seat reserved for S.E.B.C. Candidate. The authorities were expected to impart some training to such newly elected office bearers elected on seats reserved for Scheduled Caste / Scheduled Tribe / S.E.B.C./Women. The purpose of making such reservation by the constitutional amendments would be defeated if the elected office bearers in the local self government are not given such training regarding the procedures to be followed by such LPA/842/2008 8/9 JUDGMENT public functionaries. It was certainly the duty of the Talati cum Mantri also to invite attention of the Sarpanch to such procedural requirements. 11.In the above factual background, we find considerable justification for reliance placed by Mr.Mangukiya on the decision of the Apex Court in the case of Tarlochan Dev Sharma v. State of Punjab and others (supra), wherein it is held that the elected President of a local body cannot be removed on the grounds of abuse of his powers or habitual failure to perform his duties when there are procedural mistakes in the discharge of duties. Removal from an elected office is a serious matter. The case for removal must be clearly made out before action is justified. Holding and enjoying an office, discharging related duties is a valuable statutory right of not only the returned candidate but also his constituency or electoral college. Removal curtails the term of the office holder and also casts a stigma upon him. The Apex Court therefore held that a case that grounds under a particular provision for removal are applicable must be clearly made out. In the facts and circumstances of the case, the aforesaid observations of the Apex Court would apply with full force. 12.We, therefore, allow the appeal, set aside the order dated 11th August 2008 of the learned Single Judge and allow the writ petition being Special Civil Application No.10263 of 2008. The impugned order dated 7th June LPA/842/2008 9/9 JUDGMENT 2008 of the District Development Officer, Surendranagar and the order dated 21st July 2008 of the Additional Development Commissioner are hereby set aside. The appellant (original petitioner) shall be treated as having been restored to the office of Sarpanch of Village Kankuvadi. 13.The Appeal is, accordingly, allowed in the aforesaid terms. In the facts and circumstances of the case, there shall be no order as to costs. 14.Respondent No.1 shall consider observations made in paragraph 10 hereinabove and formulate and implement a proper action plan for imparting appropriate training to Sarpanchs elected to seats reserved for candidates belonging to Scheduled Castes, Scheduled Tribes, Socially & Economically Backward Classes and Women. ORDER IN CIVIL APPLICATION NO.9846 of 2008: As the Appeal is allowed, Civil application does not survive and the same is disposed of accordingly. Direct service is permitted. [M.S.SHAH, J.] [HARSHA DEVANI, J.] parmar*