Decided on June 21,1983



S.B.MAJMUDAR - (1.) In this petition under Article 226 of the Constitution the petitioner who is the Ex-Sarpanch of Matar Gram Panchayat constituted under the provisions of the Gujarat Panchayats Act 1961 (hereinafter referred to as the Act) has sought intervention of this court for issuance of a writ of quo warranto or any other suitable writ order or direction under Article 226 of the constitution of India against respondent No. 7 herein who is the present sitting Sarpanch of the said Gram Panchayat. The petitioner contends that respondent No. 7 is not entitled to hold the office of the Sarpanch of the said Gram panchayat and that he has a legal and better claim over the same and consequently respondent No. 7 should be treated to be the usurper of the said office. Other respondents who are State of Gujarat and other statutory functionaries under the Act have been joined in the petition on the allegation that they have not done justice to the petitioner and have not seen to it that respondent No. 7 usurper of the post of Sarpanch is properly ousted from his office.
(2.) In order to appreciate the grievance of the petitioner it is necessary to glance through a few relevant facts. This petition has a chequered history and consequently relevants facts will have to be traced from events spread over past number of years.
(3.) The petitioner was lawfully elected to the office of Sarpanch of the Matar Gram panchayat. He was directly elected as Sarpanch on 14 As per sec. 17(1) of the Act the term of the panchayat as constituted at its first meeting shall save as otherwise provided in the Act be five years from the date of the first meeting of the reconstituted panchayat. According to the petitioner the first meeting of the reconstituted panchayat was held somewhere in the middle of July 1978 and consquently according to him the petitioner as duly elected Sarpanch was entitled to function as surpanch till the month of July 1983. The petitioners case is that during the time he was holding the post of Sarpanch he was served with a show cause notice on 22-5-1980 issued by respondent No. 4 District Development officer Kheda. By the said notice the petitioner was called upon to show cause why he should not be removed from the membership of the Gram Panchayat Matar under sec. 49 of the Act on the basis of two-fold allegations contained in the slid notice. These allegations were (i) that the petitioner did not hold auction of a stray cow in accordance with law as mentioned in the notice and (ii) that the petitioner did not prevent the panchayat member Jashbhai Bhikhabhai Patel from bidding at the auction of the said stray cow. The petitioner submmitted his written reply to the show cause notice on 9/12-6-1980. Thereafter a resolution was passed by the Executive committee of the Kheda District panchayat on 16-10-1950 ordering removal of the petitioner under section 49 from his office as Sarpanch of the said panchayat. The petitioner carried the matter in appeal under section 49 of the Act to the Development Commissioner respondent No. 2 herein. During the pendency of the appeal the appellate authority stayed operation of the order of removal as passed against the petitioner by the first authority. The petitioners appeal ultimately came to be decided against the petitioner on 18-3-1981. The same was dismissed and interim stay granted in his favour was vacated. The petitioner challenged the appellate decision dated 18-3-1981 by filing special civil application No. 909 of 1981 in this court. In the said petition earlier a notice was issues to the concerned respondents and adinterim stay of removal order was granted. However the said adinterim stay was vacated by P. D. Desai J. (as he then was) who by his order dated 8 admitted the petition to final hearing but refused to grant interim stay of operation of the removal order. The petitioner unsuccessfully carried the matter regarding granting of interim stay in Letters Patent Appeal No. 109 of 1981 which came to be rejected by the Division Bench on 9-4-1981. In the meantime the concerned respondent who were exercising statutory powers under the Act initiated proceedings for holding a fresh election to the post of Sarpanch on the basis of the removal order passed by the second respondent and as confirmed in appeal by the 5th respondent. It appears that the petitioner unsuccessfully tried to get the election proceedings stayed by this court during the pendency of his petition. The result was that the election was held for electing new Sarpanch of Matar Gram Panchayat as the office of Sarpanch had fallen vacant on the removal of the petitioner from the said office. The aforesaid election was held as per the provisions of section 53(1) of the Act on 14-6-1981. Respondent No. 7 contested for the said post and he was declared elected on 15-6-1981. Pursuant to the aforesaid election to the post of Sarpanch respondent No. 7 took charge of his new assignment and is holding the office of Sarpanch since then till today.;

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