BIREN VAISHNAV,J. - (1.)Heard Mr.V.B.Malik, learned advocate for the petitioner, Mr. Meet Thakkar, learned Assistant Government Pleader for the State - respondent No.1 and Ms.Sejal Mandavia, learned advocate for respondents Nos. 2 and 3.
(2.)In this petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 19.07.2021 passed by the Additional Development Commissioner confirming the order dated 28.10.2020 passed by the District Development Officer, by which, the petitioner who was the Sarpanch of the Denap Gram Panchayat has been removed under section 57 of the Panchayats Act. The facts in brief are as under:
2.1 It is the case of the petitioner that the petitioner was elected as a Sarpanch of the Denap Gram Panchayat. On 11.02.2019, he was served with the show cause notice by the District Development Officer levelling two short comings against him. Firstly, it was pointed out by the D.D.O that there was a land being Survey No. 357 (new survey No. 689) admeasuring 0-39-72 sq.meters which was government waste land. When an inquiry was held, the petitioner on 26.10.2018 replied during the course of such proceedings that on the land the ancestors of the petitioner were doing cultivation and it was found by the panchnama of 29.10.2018 that there was cultivation of such land which was otherwise government waste land.

2.2 The second short coming that the show cause notice listed was with regard to the Survey No. 686/1 which was jointly owned by the petitioner and his brother Rakesh Parsottambhai Patel. In the adjoining land bearing survey no. 697 (new No. 1190), there was a constructed room. Therefore, a show cause notice was given, to which the petitioner responded. After the response to the show cause notice, the District Development Officer by the order of 28.10.2020, found that it was an admitted position in view of the statement made by the petitioner before the authorities during the course of inquiry, that the petitioner was cultivating the government waste land. When confronted with the situation, it was submitted by the petitioner that the land was in fact being cultivated by his brother. On verification of documents it was found that the brother was residing in Surat, and therefore, that assertion was also found to be incorrect. 2.3 With regard to the second short coming levelled in the show cause notice, the District Development Officer found that the room and the bathroom were constructetd on the land in question for one Thakor Anarji Dhudaji whom the petitioner had kept to take care of the land. The District Development Officer, therefore, observed that the conduct of the petitioner was not befitting that of the Sarpanch, and therefore, the order of removal was passed. That order was confirmed by the Additional Development Commissioner.

(3.)Mr.V.B.Malik, learned counsel for the petitioner would submit that the orders are unjustified and there is no reason why the petitioner ought to have been removed from the post of Sarpanch on the basis of the show cause notice so issued.
3.1 Mr.Malik, learned advocate, would submit that all revenue documents regarding the survey nos. were produced on affidavit by Mr.Subhash Kantibhai Modi and contend that in fact it was the land in the possession of his brother on which the agricultural work was being done and that there was no encroachment on the government land. 3.2 Mr.Malik, learned advocate, would also rely on a document at page 51-A of the paper book, written by his father inter alia stating that the land being Survey No. 357 had been given to his two sons, the petitioner and his brother, and the petitioner had willingly given up his right to the land in question. He would, therefore, submit that agricultural activity was carried out on a land that was ancestral and it cannot be said that there was encroachment, much less the conduct warranting removal as Sarpanch.