Gujarat High Court
Brindaben Nilanjkumar Shukla vs Collector Mahisagar District on 6 October, 2021
Author: Ashutosh J. Shastri
Bench: Ashutosh J. Shastri
C/SCA/14836/2021 JUDGMENT DATED: 06/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14836 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI sd/-
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? YES
2 To be referred to the Reporter or not ? YES
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 NO
of India or any order made thereunder ?
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BRINDABEN NILANJKUMAR SHUKLA
Versus
COLLECTOR MAHISAGAR DISTRICT
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Appearance:
MR BM MANGUKIYA(437) for the Petitioner(s) No. 1
MS BELA A PRAJAPATI(1946) for the Petitioner(s) No. 1
for the Respondent(s) No. 2
MR ADITYASINH JADEJA ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
MR PRITHVISINH JADEJA ADVOCATE for MR BP GUPTA(337) for the
Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 06/10/2021
ORAL JUDGMENT
1. RULE. Mr. Adityasinh Jadeja, learned Assistant Government Pleader waives service of rule on behalf of respondent no. 1 and learned advocate Mr. Prithvisinh Jadeja waives service of rule on behalf of Page 1 of 18 Downloaded on : Thu Oct 07 21:23:13 IST 2021 C/SCA/14836/2021 JUDGMENT DATED: 06/10/2021 respondent no. 3. With the consent of the respective parties, the matter is taken up for final hearing.
2. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs :-
"28(A) Be pleased to issue writ of prohibition or a writ in the nature of prohibition or any other appropriate writ, order or direction and quash and set aside the impugned communication dated 30.09.2021 issued by the respondent no. 3 for calling the special general meeting of the Lunawada Nagar Palika on 04.10.2021 and further be pleased to hold and declare that the motion of no confidence dated 08.09.2021 cannot be passed against the petitioner.
(B) Pending admission and final disposal of the present petition, be pleased to stay the impugned communication dated 30.09.2021 issued by the respondent no. 3 for the purpose of convening the special general meeting under sub-section 2 of Section 51 of the Act of the Lunawada Nagar Palika and further be pleased to restrain the respondents their agents and servants from restraining the petitioner from discharging her duties as the President of Lunawada Nagar Palika."
3. The brief facts leading to the rise of this petition, are that the petitioner had contested election of Lunawada Nagar Palika in the year 2018 from Ward No. 1 and was declared elected and Election Certificate dated 19.02.2018 is also issued. The strength of Lunawada Nagar Palika is 27 councillors with one President and as such, total strength of 28 councillors. The term of the President of Lunawada Nagar Palika since was expiring, elections for the post of President was held on 24.08.2020 and the post of President was reserved for woman category and in the meeting held on 24.08.2020, in the hall of Nagar Palika at 11:00 am, 19 councillors voted in favour of the petitioner and 9 councillors voted in favour of Smt. Pritiben Umeshkumar Soni. As a result of this, the petitioner was declared as elected to the post of President of Lunawada Nagar Palika on 24.08.2020 and since then is functioning as such. It is the case of the petitioner that since defeated candidate i.e. Smt. Pritiben Page 2 of 18 Downloaded on : Thu Oct 07 21:23:13 IST 2021 C/SCA/14836/2021 JUDGMENT DATED: 06/10/2021 Umeshkumar Soni could not digest such defeat, had moved Dispute Application No. 13 of 2020 before the Designated Authority for seeking disqualification of the petitioner under the provisions of Gujarat Provisions for Disqualification of Members of Local Authority for Defection Act, 1986, but since the said challenge is not assumed much significant to the challenge made in present petition, learned advocate Mr. B.M. Mangukiya representing the petitioner has not placed much emphasis and as such, leaving aside the said controversy, the case of the petitioner then is that with a view to target the petitioner by rival group, a no confidence motion was moved on 02.01.2021 against the petitioner.
3.1. It is the case of the petitioner that feeling aggrieved by the said movement of no confidence motion, straightway a petition is preferred by the petitioner being Special Civil Application No. 559 of 2021 inter alia praying to prohibit the respondents from proceeding with the meeting as sought to be convened for passing motion of no confidence against the petitioner and challenge was made to the said impugned notice dated 02.01.2021.
3.2. It is the case of the petitioner that the matter was taken up for hearing before the Court and vide order dated 11.01.2021, the Hon'ble Court issued notice made it returnable on 18.01.2021 and after hearing at length on 18.01.2021, by way of ad-interim relief, the impugned notice dated 02.01.2021 issued by the Chief Officer, Lunawada Nagar Palika is ordered to be kept in abeyance till the next date of hearing and thereafter, according to the petitioner the matter was listed for hearing on 08.02.2021, in which the Hon'ble Court was pleased to admit the petition and interim relief granted earlier was ordered to be continued till the final disposal of the petition and since then, the said petition is pending with continuance of interim relief as stated above. It is also submitted that in Page 3 of 18 Downloaded on : Thu Oct 07 21:23:13 IST 2021 C/SCA/14836/2021 JUDGMENT DATED: 06/10/2021 the meantime, an application for early date of hearing was moved, being Civil Application No. 3 of 2021, but the same was not entertained vide order dated 16.09.2021.
3.3. It is the case of the petitioner that since the petitioner had contested the election as an official candidate of the Nationalist Congress Party and was elected as a President for Lunawada Nagar Palika, every attempt is made to see that somehow the petitioner be ousted and by giving chronology to the facts related to separate proceedings under the provisions of the Gujarat Provisions for Disqualification of Members of Local Authority for Defection Act, 1986, it has been contended that under one reason or the other attempt is made to see that petitioner may not continue to hold the post.
3.4. The petitioner has further asserted that earlier attempt which was made on 02.01.2021 the same having not been processed any further, by virtue of proceedings, pending before this Court, this time one Mr. Maheshbhai Fakirchand Rana along with 20 councillors forwarded a motion of no confidence on 08.09.2021 informing to convene the meeting within 15 days by virtue of sub-section (2) of Section 51 of the Gujarat Municipalities Act. The said communication was forwarded to the petitioner on 09.09.2021 by respondent no.2.
3.5. The petitioner on 17.09.20201 forwarded a letter indicating that writ petition being Special Civil Application No. 559 of 2021 is very much pending before the Court, and the matter is subjudice wherein interim relief is granted which is in operation. As a result of this, second motion of no confidence cannot be passed. The said communication was forwarded to the Chief Officer and in turn the Chief Officer has communicated on 24.09.2201 that whether to call the meeting or not to Page 4 of 18 Downloaded on : Thu Oct 07 21:23:13 IST 2021 C/SCA/14836/2021 JUDGMENT DATED: 06/10/2021 call the meeting is of petitioner's prerogative, but if meeting is not called then he is duty bound to inform the Vice President. It is the case of the petitioner that thereafter to the surprise of the petitioner the Vice President of Lunawada Nagar Palika called a Special General Meeting vide notice dated 30.09.2021 on 04.10.2021 at 10:30 am in the meeting hall of Lunawada Nagar Palika for the purpose of considering and passing the motion of no confidence. According to the petitioner, this convening of the meeting vide notice dated 30.09.2201 itself is ex-facie illegal, arbitrary, against the settled principle of law laid down by the decision delivered by the Division Bench of this Court, and such ex-facie, illegal act cannot be permitted. In view of such submission, learned advocate Mr. Mangukiya, when came up with petition initially, it was found that there was no extra ordinary urgency by virtue of statutory provisions itself, the matter was then upon request, posted for hearing on 04.10.2021.
4. On 04.10.2021, learned advocate Mr. C.B. Upadhyay, has requested that some of the councillors have moved an application for being joined as parties in the main petition and as such, upon his request, which is not opposed by learned advocate Mr. Mangukiya, the Court by consent, listed the matter today on 05.10.2021. Thus, with the aforesaid background, the present petition is heard by the Court in which learned advocate Mr. Mangukiya, has represented the petitioner, whereas learned advocate Mr. Prithvisinh Jadeja for Mr. B.P. Gupta, learned advocate appearing for Vice President i.e. respondent no. 3 who filed caveat application and Mr. Adityasinh Jadeja learned Assistant Government Pleader on advance copy have been heard.
5. When the petition is taken up for hearing, learned advocate Mr. Mangukiya has moved a draft amendment along with CD - a videography of the meeting and said draft amendment is allowed by consent of the Page 5 of 18 Downloaded on : Thu Oct 07 21:23:13 IST 2021 C/SCA/14836/2021 JUDGMENT DATED: 06/10/2021 learned advocates appearing for the respondents and the same is ordered to be carried out forthwith. By virtue of this draft amendment, the petitioner has prayed for quashing and setting aside a Resolution which has been passed in Special General Meeting of the Lunawada Nagar Palika convened on 04.10.2021 of motion of no confidence against the petitioner and to strengthen the contentions, separate subsequent events which took place have been produced. But in essence, a request is made by virtue of draft amendment to quash and set aside the Resolution which has been passed against the petitioner in the meeting dated 04.10.2201.
5.1. In light of the aforesaid circumstance, learned advocate Mr. B.M. Mangukiya appearing for the petitioner has vehemently contended that so long as earlier petition is very much pending, it is not open for the respondent to move second no confidence motion. As a result of this, the proceedings initiated against the petitioner are non-est in the eye of law. It has further been contended that the short question for consideration is only to the effect that first no confidence motion process has been stayed by this Court, whether it would be open for the respondent to move another no confidence motion, the in view of interim order is passed by the Court and thereto in view of the specific observation made by the Division Bench of this Court in the case of Shivangiben Chetankumar Patel v. State of Gujarat & Ors., reported in 2019 (2) GLR 865, a copy whereof, is produced at page 153 onward. By referring to the observations made by the Division Bench in the aforesaid case precisely in para nos. 43 and 44 a contention is raised that it is not open for the respondent to move the no confidence motion by holding a meeting on 04.10.2021. That being so, according to learned advocate Mr. Mangukiya, the relief prayed for in the petition deserves to be granted. It has further been contended that the elected representative cannot be dealt with in the manner in which the proceedings have been initiated against her as spelt-out in the memo of the Page 6 of 18 Downloaded on : Thu Oct 07 21:23:13 IST 2021 C/SCA/14836/2021 JUDGMENT DATED: 06/10/2021 petition. Hence, the entire exercise undertaken against the petitioner is impermissible in law. Hence, the Resolution which has been passed against the petitioner in the meeting on 04.10.2021 and the proceedings thereof are required to be quashed and set aside.
5.2. Learned advocate Mr. Mangukiya has submitted that a detailed order was passed by the co-ordinate Bench of this Court in Special Civil Application No. 559 of 2021 and reading the said order even this Court had not granted permission to move for early date of hearing as the same was moved by the Chief Officer of Lunawada Nagar Palika. The said order is brought to the notice of this Court, reflecting on page 81 of the petition compilation. It has further been canvassed by learned advocate Mr. Mangukiya that the Chief Officer, in any case, has no business to move an application for early date of hearing and that is the reason why mala fides which are alleged are getting substantiated. Hence, when the ad-interim relief is granted, there is hardly any reason for the respondent to move no confidence motion and to conclude the same against the petitioner. This is absolutely against, and according to learned advocate Mr. Mangukiya the same is contemptuous in nature, against the judicial discipline as well and as such, the relief prayed for deserves to be granted. Learned advocate Mr. Mangukiya has further submitted that alternatively, if the Court is of the opinion then the interim relief may be couched in such a manner which may take care of the situation and the petitioner would not take any policy decision, but if the interim relief is not granted, the same would create an irreversible situation and therefore, when the earlier petition is very much pending, awaiting final disposal, the present petition be entertained in the context of the reliefs which have been prayed for. Considering the aforesaid submissions, learned advocate Mr. Mangukiya has reiterated the request for grant of relief as an interim measure and has raised no further submissions in the present petition.
Page 7 of 18 Downloaded on : Thu Oct 07 21:23:13 IST 2021C/SCA/14836/2021 JUDGMENT DATED: 06/10/2021 Categorically, learned advocate Mr. Mangukiya has submitted that though there are assertions in the petition with respect to proceedings under the provisions of Defection Act, but since the same are not exactly relevant to the controversy involved in the petition, the same are not being referred to at length. Hence, a request is made to deal with the aforesaid short submission about initiation of second no confidence motion in light of the pendency of the petition. No other contentions have been raised.
6. As against this, learned advocate Mr. Prithivisinh Jadeja appearing on behalf of caveator i.e. respondent no. 3, has vehemently opposed the petition. Learned advocate Mr. Jadeja has submitted that simply because one no confidence motion is moved against the petitioner and the same is stayed by the Court, the same would not prevent initiation of second no confidence motion against the petitioner and if this stand is allowed to be taken on hyper technicality, the petitioner will continue to function as a President though lost confidence to hold the post. It has been submitted that no confidence motion is passed against the petitioner with thumping majority and 22 members have voted in favour of no confidence motion and against the petitioner whereas only one vote found in favour of the petitioner. So when this be situation and when the petitioner has lost confidence from the body in its entirety, there is hardly any reason to grant any relief to the petitioner.
6.1. Learned advocate Mr. Jadeja has further submitted that a close perusal of the observations made by the Division Bench of this Court which is heavily relied upon by learned advocate Mr. Mangukiya would clearly indicate that this second no confidence motion is moved beyond the period which has been mentioned in para 44 since the petitioner was elected as a President on 24.08.2020, the first no confidence motion which was moved on 02.01.2021 if not within permissible time, then this second Page 8 of 18 Downloaded on : Thu Oct 07 21:23:13 IST 2021 C/SCA/14836/2021 JUDGMENT DATED: 06/10/2021 no confidence motion is in the month of September, 2021, which is beyond the period of six months and, therefore, there is no embargo for the respondent to proceed ahead against the petitioner in respect of no confidence motion. Learned advocate Mr. Jadeja has further submitted that a close perusal of the observations would further clarify that in para 44, the Division Bench of this Court has categorically stated that keeping in mind the tenure of elected President of Taluka Panchayat being only two and half years, once motion is defeated, the same cannot be permitted, the same can be moved only after six months from such defeat. Now, here the first no confidence motion was moved in the month of January, 2021, but the same was not allowed to be deliberated and the said proceedings were stayed and therefore, there is no question defeating the said motion of no confidence and as such, also, the observations made are not of any assistance to the case of the petitioner and apart from that irrespective of that, the second no confidence motion which has been moved is beyond the period of six months. The wish of the body of the elected representative if has indicated that the petitioner has lost confidence, the same may not be hampered on account of any hyper technicalities which are tried to be projected by the petitioner. Hence, in any case, the second no confidence motion is legally permissible, and when it has been passed with a voting of 22 persons in favour of no confidence motion and only one vote is passed in favour of the petitioner on this passing of no confidence, there is hardly any reason for the petitioner to withstand and to get any protection from the Court. Hence, in view of this peculiar background of fact, neither the pendency of the earlier petition nor observations made by Division Bench would come to the rescue or assistance to the petitioner. It is further contended by learned advocate Mr. Jadeja that the earlier petition is with respect to the first no confidence motion, which was moved through a notice dated 02.01.2021 and the Court had examined the issue and granted protection keeping in Page 9 of 18 Downloaded on : Thu Oct 07 21:23:13 IST 2021 C/SCA/14836/2021 JUDGMENT DATED: 06/10/2021 view the observations that such initiation was within a period of six months, hence, the Court protected. So the background of present facts situation is quite distinct from that of the earlier petition. Thus, pendency of the said petition would not be of any assistance to the petitioner. Hence, the petition deserves to be dismissed.
7. Learned Assistant Government Pleader Mr. Adityasinh Jadeja appearing for respondent no. 1 - State on an advance copy, has no much say in the matter as the same is inter se between the petitioner and the Nagar Palika, but has reiterated that the stand taken by respondent no. 3 caveator appears to be sound to the present background of facts and has left it to the discretion of the Court.
8. At this stage, learned advocate Mr. Chitrajeet Upadhyay, who had filed Civil Application for joining party to the proceedings, on behalf of some of the councillors, but since the application is not on the Board, nor the same is granted, in view of the resistance, the Court has not heard at length learned advocate Mr. Upadhyay.
9. Having heard the learned advocates appearing for the respective parties and having gone the material on record, following circumstances are not possible to be unnoticed by the Court.
9.1. In the Democratic set up all persons heading public bodies can continue provided they enjoy continuous confidence of the persons who comprise such bodies. This is the essence of democratic republicanism. The democratic accountability and transparency in the activities of a Chairperson especially in view of the important functions entrusted in the statute, such duties can be discharged by the Head of the said local body, only if he or she, as the case may be enjoys continuous confidence of the Page 10 of 18 Downloaded on : Thu Oct 07 21:23:13 IST 2021 C/SCA/14836/2021 JUDGMENT DATED: 06/10/2021 majority members in the Panchayat and any head of the democratic institution must be prepared to face the test of confidence.
9.2. With this preface, if the Court peruses certain undisputed position prevailing on the case on hand, it is culled out that in this present no confidence motion, a Resolution and the motion is passed by 22:1 votes which means that the petitioner has lost confidence practically of the entire body. The petitioner was elected as a President of Lunawada Nagar Palika on 24.08.2020 and on account of certain eventualities, which the Court may not presently concerned, the petitioner was faced with one no confidence motion on 02.01.2021. It appears from the record that the said no confidence motion was moved within a period of six months hence in view of the observations made by the Division Bench of this Court, the Court at the relevant point of time extended protection and by virtue of interim order, the said no confidence motion was not put for vote or deliberation as the process itself is kept in abeyance and, therefore, the said no confidence motion was not defeated on the floor of the democratic institute i.e. the respondent Nagar Palika.
9.3. Then it appears again that on account of eventualities, presently, no confidence motion has been moved by one councillor Mr. Maheshbhai Fakirchand Rana and other 20 councillors who forwarded no confidence motion on 08.09.2021. So if this is to be considered, the same is beyond the period of six months from the date of first motion and beyond the several months from the original election in the month of August, 2020. It further appears from the record, which is not in dispute that this time, no confidence motion which has been moved appears to be with absolute majority and 22 councillors voted in favour of no confidence motion against the petitioner and only one vote was found in favour of the petitioner and as such, it appears that the petitioner has lost confidence in Page 11 of 18 Downloaded on : Thu Oct 07 21:23:13 IST 2021 C/SCA/14836/2021 JUDGMENT DATED: 06/10/2021 its entirety to remain as the Head/President of the Nagar Palika.
9.4. Since other circumstances related to her previous disqualification proceeding are not significant to the present controversy, even learned advocate Mr. Mangukiya has also not taken the Court to said proceedings and has candidly submitted that since we are not concerned, the same was not being referred to though mentioned in the petition.
9.5. Now in light of the aforesaid situation, which is prevailing on record, as learned advocate Mr. Mangukiya has heavily relied upon the decision delivered by the Division Bench of this Court in the case of Shivangiben Chetankumar Patel (supra), the Court would like to closely peruse the same and on the basis of such perusal, the Division Bench on critical analysis of the facts as well as relevant statutory provisions has formulated and propounded that what would be reasonable period for moving no confidence motion since statutory provision is silent on the issue. After examining the provisions, the following observations are made which read as under :-
"[42] Then the next question which arises is, in absence of any restriction for a particular time under section 56 of the Act, what should be the reasonable time, within which time no confidence motion cannot be permitted, so as to read into section 56 of the Gujarat Panchayats Act. Reasonable time is nothing but a time that is fairly required to do whatever is required to be done, conveniently under the permitted circumstances. Reasonable time varies from the contextual meaning, under which it is used. In short, the reasonable time is any time which is not manifestly unreasonable under the circumstances.
[43] Under section 13 of the Gujarat Panchayats Act, 1993, every panchayat, unless sooner dissolved under this Act shall continue for five years from the date appointed for its first meeting and no longer. Keeping such provisions in mind, and executive functions entrusted to the elected Sarpanch under Section 55 of the Panchayat Act, and object of the 73rd Constitutional Amendment Act, 1992 i.e. continuity Page 12 of 18 Downloaded on : Thu Oct 07 21:23:13 IST 2021 C/SCA/14836/2021 JUDGMENT DATED: 06/10/2021 and stability of Panchayati Raj institutions, we deem it appropriate that reasonable time of one year should be considered as reasonable time, within which time, no motion could be permitted for removal of elected Sarpanch by way of no confidence motion as contemplated under section 56 of the Gujarat Panchayats Act from the date of declaration of result. Similarly, once, no confidence motion is moved and defeated, same cannot be permitted for a period of one year from the date of such defeat.
[44] So far as President of Taluka Panchayat is concerned, initially period can be of one year from the date of declaration of result, within which time, no motion can be permitted for removal of elected President of Taluka Panchayat. However, keeping in mind tenure of elected President of Taluka Panchayat being only two and half years, once motion is defeated, same can be permitted to be moved only after six months from the date of defeat.
[45] We have issued aforesaid directions, in absence of any specific provision for prohibiting no confidence motion after declaration of election against Sarpanch and Up−Sarpanch under Section 56 of the Gujarat Panchayat Act, 1993 and so far as President of Taluka Panchayat under Section 70 of the Gujarat Panchayat Act, 1993. We make it clear that it is open for the competent authority to make suitable amendment in aforesaid provisions."
9.6. The aforesaid observations which are made, so far it relates to the post of President of Panchayat is concerned, by taking note of the fact that tenure of President is two and half years it has been propounded that once the motion is defeated, the same can be permitted to be moved next only after six months from the date of defeat. Now, if this observation is to be applied on the facts on hand, it clearly reveals that the petitioner was elected on 24.08.2020, the first no confidence motion was moved on 02.01.2021 and this notice of moving no confidence motion itself is stalled by the petitioner by approaching this Hon'ble Court and the said motion was not allowed to be put for deliberation or for defeating of the floor of the Panchayat itself. However, be that as it may, the said no confidence motion was the subject matter of scrutiny before this Court in earlier petition being Special Civil Application No. 559 of 2021, but this present Page 13 of 18 Downloaded on : Thu Oct 07 21:23:13 IST 2021 C/SCA/14836/2021 JUDGMENT DATED: 06/10/2021 no confidence motion is moved undisputedly, after a lapse of six months and even if it is assumed that such first no confidence motion was assumed to have been defeated, then also the observations made in para 44 in the considered opinion of this Court, are not of any assistance to the petitioner.
9.7. The Court is mindful of the decision delivered by the Hon'ble Apex Court in the case of Bhanumati & Ors., v. State of Uttar Pradesh Through its Principal Secretaryu and Ors., reported in (2010) 12 SCC 1, on the issue of no confidence, and the relevant observations contained in para 58, 66, 67, 58, 69, 70, 72 and 73 since relevant, the Court deems it proper to reproduce hereunder :-
"58. These institutions must run on democratic principles. In democracy all persons heading public bodies can continue provided they enjoy the confidence of the persons who comprise such bodies. This is the essence of democratic republicanism. This explains why this provision of no-confidence motion was there in the Act of 1961 even prior to the 73rd Constitution amendment and has been continued even thereafter. Similar provisions are there in different States in India.
66. Democracy demands accountability and transparency in the activities of the Chairperson especially in view of the important functions entrusted with the Chairperson in the running of Panchayati Raj Institutions. Such duties can be discharged by the Chairperson only if he/she enjoys the continuous confidence of the majority members in the Panchayat. So any statutory provision to demonstrate that the Chairperson has lost the confidence of the majority is conducive to public interest and adds strength to such bodies of self Governance. Such a statutory provision cannot be called either unreasonable or ultra vires Part IX of the Constitution.
67. Any head of a democratic institution must be prepared to face the test of confidence. Neither the democratically elected Prime Minister of the Country nor the Chief Minister of a State is immune such a test of confidence under the Rules of Procedure framed under Articles 118 and 208 of the Constitution. Both the Prime Minister of India and Chief Ministers of several States heading the Council of Page 14 of 18 Downloaded on : Thu Oct 07 21:23:13 IST 2021 C/SCA/14836/2021 JUDGMENT DATED: 06/10/2021 Ministers at the Centre and in several States respectively have to adhere to the principles of collective responsibilities to their respective houses in accordance with Articles 75(3) and 164(2) of the Constitution.
68. The learned counsel for the appellant therefore compared the position of the Chairperson of a Panchayat with that of the President of India and argued that both are elected for five years and President's continuance in office is not subject to any vote of no- confidence. The post of Chairperson should have the same immunity.
69. This is an argument of desperation and has been advanced, with respect, without any regard to the vast difference in Constitutional status and position between the two posts. The two posts are not comparable at all by any standards. Even the President of India is subject to impeachment proceedings under Article 61 of the Constitution. No one is an `imperium in imperio' in our Constitutional set up.
70. In this matter various judgments have been cited by the learned counsel for the appellant. Of those judgments only the judgment in Mohan Lal Tripathi vs. District Magistrate, Rai Bareilly & others [1992 (4) SCC 80] is on the question of the no-confidence motion against President of the municipality elected directly by the electorate. No-confidence motion was passed by the board against the said President and not by the electorate. That was challenged. This Court repelled the challenge and upheld the no- confidence motion holding that the recall by the Board amounts to recall by the electorate itself.
72. Upholding the concept of vote of no-confidence in Mohan Lal Tripathi (supra) this Court further elaborated the concept as follows:
"...Vote of no-confidence against elected representative is direct check flowing from accountability. Today democracy is not a rule of 'Poor' as said by Aristotle or of 'Masses' as opposed to 'Classes' but by the majority elected from out of the people on basis of broad franchise. Recall of elected representative is advancement of political democracy ensuring true, fair, honest and just representation of the electorate. Therefore, a provision in a statute for recall of an elected representative has to be tested not on general or vague notions but on practical possibility and electoral feasibility of entrusting the power of recall to a body which is representive in character and is capable of projecting views of the electorate. Even though there was no provision in the Act initially for recall of a President it came to be introduced in 1926 and since then it has continued and the power always vested in the Board irrespective of whether the President was Page 15 of 18 Downloaded on : Thu Oct 07 21:23:13 IST 2021 C/SCA/14836/2021 JUDGMENT DATED: 06/10/2021 elected by the electorate or Board. Rationale for it is apparent from the provisions of the Act..."
73. In Ram Beti vs. District Panchayat Raj Adhikari & others [1998 (1) SCC 680] this Court has upheld the provisions of Section 14 of U.P. Panchayat Raj Act, 1947 as amended by U.P. Act No. 9 of 1994 which empowers members of the Gram Panchayat to remove the Pradhan of Gram Sabha by vote of no-confidence. This Court held that such a provision is not unconstitutional nor does it infringe the principle of democracy or provisions of Article 14. This decision was rendered in 1997, which is after the incorporation of Part IX of the Constitution."
9.8. Yet the very relevant circumstance which otherwise ought to have been brought to the notice of this Court, unfortunately not pointed out by learned advocate for the petitioner, the Court while considering the aforesaid observations, has come to the knowledge of the proceedings which are pending before the Hon'ble Supreme Court against this very decision of the Division Bench in the case of Shivangiben Chetankumar Patel (supra) in which the Hon'ble Supreme Court while issuing notice on 02.07.2018. has passed the following order :
"Issue Notice.
Pendency of this special leave petition would not debar the petitioners to move another No Confidence Motion in accordance with law, if they are so advised."
9.9. This order is sufficient enough to indicate that there is no embargo to move second no confidence motion and in any case, this second no confidence motion is beyond the period of six months irrespective of the fact whether the same was not allowed to be defeated or deliberated on the floor of the Panchayat. So on perusal of this order as well as a close perusal of the observations made by the Division Bench of this Court, on which, much emphasis is made by the learned advocate for the petitioner, the Court see no reason to extend any equitable relief in the present petition, especially, when the Resolution is passed with absolute majority Page 16 of 18 Downloaded on : Thu Oct 07 21:23:13 IST 2021 C/SCA/14836/2021 JUDGMENT DATED: 06/10/2021 as indicated above, the petitioner appears to have lost confidence of its entire body and as such, in a democratic set up when the petitioner is not enjoying the confidence of the persons comprised such body, there is hardly any reason for the petitioner to insists for continuance on the position.
9.8. In addition to this, the learned advocate for the petitioner has made an attempt to seek equitable relief by insisting upon the fact that since one petition against first no confidence motion is pending, second no confidence motion even if passed in such a form, deserves to be stayed on account of principle of judicial discipline, it is not understandable as to how and in what manner, the petitioner has an audacity to plead for judicial discipline particularly, in view of the order dated 02.07.2018 passed by the Hon'ble Supreme Court against the decision of the Division Bench of this Court. But even despite this, the Court is examining as to whether simply because a petition is pending with interim protection against the first no confidence motion, whether second no confidence motion can be allowed to be moved or not. As stated earlier, a Head of the Panchayat i.e. the President can be able to discharge his function only if he or she enjoys continuous confidence of the majority members in the Panchayat and as such, while considering the aforesaid issue the Court on perusal of the said order passed in Special Civil Application No. 559 of 2021 has noticed that the said petition was moved at the stage when the notice for calling meeting for no confidence, was issued and, therefore, the fist move was not at all allowed to be discussed, deliberated or to be defeated. It is only by virtue of interim protection, such no confidence motion was not precipitated any further and as such, cannot be said to be defeated on the floor of the Panchayat. In any case, on perusal of the said proceedings, it appears that the Hon'ble Court had relied upon the observations made by the Division Bench of this Court in the decision in Page 17 of 18 Downloaded on : Thu Oct 07 21:23:13 IST 2021 C/SCA/14836/2021 JUDGMENT DATED: 06/10/2021 the case of Shivangiben Chetankumar Patel (supra) and found that when the petitioner was elected in August, 2020 and the said no confidence motion was moved within a period of six months, the protection appears to have been extended and as such, in any case, emphasis pressed on the observations of the Division Bench are not of avail to the petitioner and apart from that a clear observation made by the Hon'ble Supreme Court in the order dated 02.07.2018, the stand of the petitioner is further weakened. As a result of this, the said proceedings are of no avail and judicial discipline concept which is tried to be pressed is no doubt salutary, but not possible to be applied to extend the protection to the petitioner.
10. In light of the aforesaid situation, now when the Court see that the factual details of earlier petition are quite distinct from the present case on hand, if the law of precedent is to be applied, the same is also not possible to be of any assistance to the petitioner. The reason is that it is the settled position of law that if the facts are distinct, even one additional fact would make a world of difference in applying principle as precedent and further it is a settled proposition of law that interim orders are not to be treated as precedent, and when that be so, there is hardly any case made out by the petitioner to call for any interference.
11. So conjoint consideration of aforesaid situation and in view of the peculiar background of present case, none of the contentions of the petitioner are possible to be accepted as a result of it, the petition being mertiless, stands dismissed. Rule is discharged with no order as to costs.
sd/-
(ASHUTOSH J. SHASTRI, J) phalguni Page 18 of 18 Downloaded on : Thu Oct 07 21:23:13 IST 2021