2010 (3) G.L.H. 293 S.J. MUKHOPADHAYA, CJ., AND ANANT S. DAVE, J. Mukeshbhai Meghjibhai Kapadiya and Ant. ....Appellants Versus State of Gujarat and Ors.....Respondents Letters Patent Appeal No. 1156 of 2010. In Special Civil Application No. 13610 of 2009 With Civil Application No. 5169 of 2010 With Letters Patent Appeal No. 1177 of 2010 In Special Civil Application No. 13611 of 2009 With Civil Application No. 5287 of 2010..... D/- 31.08.2010. MUNICIPAL LAWS - Gujarat Panchayats Act, 1993 - S. 57 - Removal from office - Members and Sarpanch of the Gram Panchayats sold the scrap without resolution of the Panchayat, without obtaining prior permission of superior Authority and without publishing any advertisement in the newspaper -Held, it cannot be termed as irregularity - Further held, the irregularity as alleged amounts to disgraceful conduct on the part of members and Sarpanch of the Gram Panchayats - The removal by competent authority of Members and Sarpanch from their respective offices, held, proper.The authority after hearing the parties and taking into consideration the fact that on record there is no resolution of the Gram Panchayat and there is nothing on record to suggest that permission of the competent authority was obtained or advertisement was published, by order(s) dated 06.06.2009, the District Development Officer, Rajkot removed the petitioners from their respective posts of Members and Sarpanch in exercise of power conferred u/ Sec.57(1) of Act. The appeals preferred against the same were also dismissed by the appellate authority, i.e. the Development Commissioner, Gandhinagar, by a detailed reasoned order dated 27.10.2009. As noticed above, learned Counsel for the petitioners contended that committing a mere irregularity do not attract Sec.57(1) of the Act and for that he has relied on a similar provision, i.e. Sec.37(1) of the Gujarat Municipalities Act, 1963, which fell for consideration ishbhai Trivedi (supra) - Special Civil Application No.7849 of 2009 and analogous before this Couirt in the case of Virbalaben Gi cases disposed of on 17.12.2009. However, the petitioner cannot derive the advantage of the said case, as from the facts of the present case, it will be evident that the allegation of selling scrap without resolution of the Gram Panchayat, without obtaining prior permission of superior authority and without publishing any advertisement in newspapers cannot be termed to be an irregularity. (Para 7) In the present case, the irregularity as alleged amounts to disgraceful conduct on part of the Members and Sarpanch of the Gram Panchayat and one can also allege abuse of their power if scraps of Panchayat are sold without a decision of the Panchayat or permission of the competent authority and without any advertisement. In that view of the matter, no writ petitioner can derive advantage of the word irregularity’ as in normal course mentioned in the show cause notice of the impugned order. In anycase, this was not a fit case for learned Single Judge to exercise discretionary power under Art.226 of the Constitution of India and for that we are not inclined to interfere with the orders impugned. (Para 8) Cases referred : Virbalaben Girishbhai Trivedi & 13 others v. State of Gujarat & 3 others Spl. C. A. 7849 of 2009 - Relied (Para 2) Appearance : Mr. Bhavin S. Raiyani for Appellants : 1 - 2. Mrs. Krina Calla AGP for Respondents : 1 - 2. Mr. Pranav V. Shah for Respondent: 3, Notice Served By DS for Respondent: 4. PER : MR.S. J.MUKHOPADHAYA, CJ. 1. The petitioners in Special Civil Application No. 13610 of 2009 were Members of Veraval Gram Panchayat and the other petitioner in Special Civil Application No,13611 of 2009 was the Sarpanch of the said Panchayat. In exercise of power conferred u/Sec.57 of the Gujarat Panchayats Act, 1993 (the Act’ for short), the competent authority having removed them from their respective offices after giving them opportunity to show cause and the said order having been affirmed by the appellate authority, they unsuccessfully preferred the respective writ petitions giving rise to these appeals. 2. The main plea taken by learned Counsel appearing on behalf of the petitioners is that mere irregularity having been alleged in the show cause notice, for such irregularity, no action can be taken u/Sec.57 of the Act. He placed reliance on an unreported Division Bench decision of this Court in Virbalaben Girishbhai Trivedi &13 others v. State of Gujarat & 3 others in Special Civil Application No.7849 of 2009 and analogous cases, wherein action taken under similar provisions under the Gujarat Municipalities Act, 1963, i.e. Secs 37 and Sec. 278A, fell for consideration. The Bench by its judgment dated 17.12.2009 held that for committing mere irregularity, such provisions are not attracted and a Member or Sarpanch cannot be removed for committing such irregularity. 3. Per contra, learned Counsel for the respondents submits that there being concurrent finding of fact by the competent authority, appellate authority and the learned Single Judge, this Court may not interfere with the same in appeal. 4. We have heard learned Counsel for the parties and perused the record. 5. It appears that scrap of Veraval Gram Panchayat was sold without any resolution passed by the Gram Panchayat. No advertisement was published in any of the newspapers nor permission of the competent authority was obtained to sell the scrap. For such alleged irregularity, a show cause notice was issued on petitioners on 31.12.2008 individually asking as to why they should not be removed from their respective posts under the provisions of Sec.57(1) of the Act. They were individually directed to remain present for the hearing on 07.01.2009 by the District Development Officer, Rajkot. 6. Pursuant to the said notice, the petitioners appeared and have filed their replies. It was informed that the resolution was adopted by majority of the Panchayat for sale of the scrap, but the Secretary has not recorded the resolution and thus there is no responsibility on the part of the Members or the Sarpanch for recording suchresolution. The Talati-cum-Mantri may be responsible for not writing such resolution. The Talati-cum-Mantri has informed that he has written the resolution for scrap and it has not been recorded in the minute book. This was the stand also taken by the petitioners. 7. The authority after hearing the parties and taking into consideration the fact that on record there is no resolution of the Gram Panchayat and there is nothing on record to suggest that permission of the competent authority was obtained or advertisement was published, by order(s) dated 06.06.2009, the District Development Officer, Rajkot removed the petitioners from their respective posts of Members and Sarpanch in exercise of power conferred u/ Sec.57(1) of Act. The appeals preferred against the same were also dismissed by the appellate authority, i.e. the Development Commissioner, Gandhinagar, by a detailed reasoned order dated 27.10.2009. As noticed above, learned Counsel for the petitioners contended that committing a mere irregularity do not attract Sec.57(1) of the Act and for that he has relied on a similar provision, i.e. Sec.37(1) of the Gujarat Municipalities Act, 1963, which fell for consideration before this Couirt in the case of Virbalaben Girishbhai Trivedi (supra) - Special Civil Application No.7849 of 2009 and analogous cases disposed of on 17.12.2009. However, the petitioner cannot derive the advantage of the said case, as from the facts of the present case, it will be evident that the allegation of selling scrap without resolution of the Gram Panchayat, without obtaining prior permission of superior authority and without publishing any advertisement in newspapers cannot be termed to be an irregularity. 8. Sec.57 of the Act stipulates the grounds on which a Member of the Panchayat, the Sarpanch or Upa- Sarpanch can be removed. Apart from being found guilty of misconduct in discharge of hisduties, any disgraceful conduct or abuse of powers or making persistent default in performance of duties also attract Sec.57(I) and is quoted hereunder: - "57(1) Removal from office.- The competent authority may remove from office any member of the panchayat, the Sarpanch or, as the case may be, the Upa-Sarpanch, thereof, after giving him an opportunity of being heard and giving due notice in that behalf to the panchayat and after such inquiry as it deems necessary, if such member, Sarpanch or, as the case may be, Upa-Sarpanch has been guilty of misconduct in the discharge of his duties or of any disgraceful conduct or abuses his powers or makes persistent default in the performance of his duties and functions under this Act or has become incapable of performing his duties and functions under this Act. The Sarpanch or, as the case may be, the Upa- Sarpanch, so removed may at the discretion of the competent authority also be removed from the membership of the panchayat." In the present case, the irregularity as alleged amounts to disgraceful conduct on part of the Members and Sarpanch of the Gram Panchayat and one can also allege abuse of their power if scraps of Panchayat are sold without a decision of the Panchayat or permission of the competent authority and without any advertisement. In that view of the matter, no writ petitioner can derive advantage of the word irregularity as in normal course mentioned in the show cause notice of the impugned order. In any case, this was not a fit case for learned Single Judge to exercise discretionary power under Art.226 of the Constitution of India and for that we are not inclined to interfere with the orders impugned. In absence of any merit, both the Letters Patent Appeals and Civil Applications are dismissed. There shall be no order as to costs. (UPV) (Appeals dismissed)