Devshibhai Chanabhai Makwana vs State Of Gujarat & 5 on 7 July, 2015

[Cites 5, Cited by 2]

Gujarat High Court

Devshibhai Chanabhai Makwana vs State Of Gujarat & 5 on 7 July, 2015

1. The matter is taken up for final hearing and disposal with the consent of the learned advocates for the parties. Hence, Rule. Learned A.G.P. Mr. Janak Raval waives service of notice of rule for respondents no.1,2 and 5. Learned Advocate Mr. H.S. Munshaw waives service of notice of rule for respondents no.3 and 4.

2. By the present petition filed under Article 226 of the Constitution of India, the petitioner seeks to challenge the decision dated 16.5.2015 taken by respondent no.3, pursuant to order made by this court in special civil application no. 8646 of 2015, on the representation of the petitioner questioning the validity of no confidence motion passed against him in the meeting held on 26.12.2014.

3. It appears that the motion of no confidence by eight persons was moved on 20.9.2014 and to discuss such motion, the Taluka Development Officer ("TDO") called the meeting of the Gram Panchayat initially on 12.11.2014 which was postponed by the District Development Officer ("DDO") till further order was made. The meeting for such purpose was then held on 26.12.2014. In such meeting, no confidence motion was passed by the majority against the petitioner.

4. It appears that the petitioner had called in question the validity of the no confidence motion before this Court by preferring Special Civil Application No. 8646 of 2015. However, said petition was allowed to be withdrawn with a direction to respondent No.3 to decide representation dated 1.1.2015 made by the petitioner on or before 16.5.2015.

5. Now, by the impugned order dated 16.5.2015, respondent No.3 has rejected the representation by observing that the presiding officer of the meeting does not appear to have acted against the rules in not accepting the request of the petitioner to vote and enter Page 2 of 13 C/SCA/9019/2015 JUDGMENT the points raised by him in minute book and that since the petitioner participated in the meeting, it could not be said that the petitioner was deprived of his right to be heard as required by section 56(3) of the Gujarat Panchayats Act, 1993 ("the Act"). It is this order which is under challenge in this petition mainly on the ground that the meeting of the panchayat would clearly reveal that when the petitioner requested to be heard against the motion, he was asked to wait till the meeting for discussing the no confidence motion was over. It appears that videography of the entire meeting held for the purpose of discussing the no confidence motion was done and based on the copy of the CD of videography, the petitioner has urged that if the CD of videography of meeting is seen, the request of the petitioner to permit him to speak against the motion was bluntly turned down by the presiding officer of the meeting. At the previous hearing of the petition, learned advocate Mr. Munshaw appearing for the Gram Panchayat was asked to take instruction and to state as to whether the petitioner ever requested to be heard in the meeting against the motion and if so how such request was dealt with by the presiding officer. Mr. Munshaw then filed affidavit dated 22nd June, 2015 of the talati cum mantri of the gram panchayat, contents of which shall be referred later on at appropriate stage.

6. Learned advocate Ms. Vijayalaxmi appearing for the petitioner submitted that earlier when the petitioner moved petition before this Court, since the question as to whether the petitioner was given hearing against no confidence motion was to be gone into by looking at the record of the gram panchayat as also by looking at the CD of the videography, the petitioner was permitted to withdraw the said petition with a liberty to approach respondent no.3 and the respondent no.3 was directed to decide the said question. However, the respondent No.3 just decided such question by cursorily observing that the proceeding of the meeting was carried out according to the rules and the petitioner was not deprived of his right Page 3 of 13 C/SCA/9019/2015 JUDGMENT to speak against the motion. Ms. Vijayalaxmi submitted that now the talati cum mantri who actually participated in the meeting and has seen the videography of the meeting has clearly stated in his affidavit in reply that on the day of meeting, though the petitioner had asked to permit him to speak against the motion, however, he was asked to wait till the meeting was over. Ms. Vijayalaxmi submitted that on such facts stated in the affidavit in reply by the talati cum mantri who actually participated in the meeting, no further proof is required to hold that the petitioner was deprived of his statutory right to speak against the motion and, therefore, the motion passed against the petitioner in the meeting could be said to be invalid and illegal in the eye of law.

7. Learned advocate Mr. Munshaw appearing for respondents No. 3,4 and 6 submitted that the respondent no.3 has decided representation of the petitioner not only on the question about legality or otherwise of no confidence motion also on other grievances raised by the petitioner, by the impugned order. Mr. Munshaw submitted that the petitioner had earlier withdrawn the petition and thereafter, the impugned order is made but before the petitioner could challenge the impugned order, the election of the sarpanch took place on 17.5.2015 and now elected sarpanch is holding the office and, therefore, this court may not interfere with the impugned order especially when the motion of no confidence was passed against the petitioner by majority of the members.

8. Learned A.G.P. Mr. Raval appearing for the State Authorities submitted that the motion of no confidence was passed against the petitioner by at least nine members out of 12 members of the panchayat and since the respondent No.3 has found that the proper procedure was followed in the meeting wherein no confidence motion was passed, this court may not interfere with the impugned order in exercise of the powers under Article 226 of the Constitution of India.

Page 4 of 13

C/SCA/9019/2015 JUDGMENT

9. Having heard the learned advocates for the parties, it appears that the respondent No.3 though was required to find out whether the petitioner was deprived of his statutory right to speak against no confidence motion, however, as could be noticed from the impugned order at annexure A, the respondent No.3 has considered the aspect of the petitioner's tendering some representations for entering them in minute book and denial of the same by the presiding officer on the ground that it was not covered in agenda for the meeting. Such denial was considered by the respondent No.3 as not contrary to any rule. The respondent No.3 has observed that on verifying the CD, he found that during the talk with the presiding officer, the petitioner requested to include his points in the minute book but since it was not part of agenda, the presiding officer asked him that if he was to say anything, he could say after the meeting was over and after the meeting was over, everybody left the meeting. However, such act of the presiding officer was not taken as denial of right of the petitioner to be heard. What is held in the impugned order is that the representations of the petitioner were not accepted which could not be said to be contrary to any rules. It is required to note that the petitioner had other grievances for which the petitioner had gone with some representations before the Dy. Sarpanch and at the same time, it is the case of the petitioner that he wanted to speak against the motion for which he requested the presiding officer. Now, as per the affidavit of the talati cum mantri, the petitioner though requested to speak against the motion, he was asked to wait till the meeting was over. Para 5 of the affidavit in reply of the talati cum mantri reads as under:

"5. The Respondent No.6 most respectfully submits that as stated herein above in all 9 members had supported the No Confidence Motion while 3 members including the present petitioner voted against it. It is submitted that, however, petitioner has raised the contention that he was Page 5 of 13 C/SCA/9019/2015 JUDGMENT not allowed to address the House during the meeting. The Respondent No. 6 most respectfully submits that even the Hon'ble Court during the hearing observed that a video cassette be seen and it may be made clear whether the petitioner herein was allowed to address the House. The Respondent No. 6 who was present in the meeting as Talati cum Mantri humbly submits that the petitioner at the initial stage of the meeting asked to allow him to address the House but the presiding officer at that point of time said that he can address the House at a later point of time and No Confidence Motion was put to vote and thereafter also no opportunity was given to the present petitioner to address the House. In other words, the petitioner had not addressed the House."

10. Once there is affidavit from the talati cum mantri who remained present in the meeting stating that the petitioner was not allowed to speak against the motion, the observations made by the respondent no.3 in the impugned order as regards following of proper procedure according to the rules in the meeting held for discussing the motion shall be of no relevance. It appears that in the proceedings of the meeting at annexure I signed by the Presiding Officer - Upa Sarpanch of the meeting, it is simply stated that the members who were served with the notice of the meeting remained present, out of them, nine members voted in favour of the motion and three voted against the motion and the motion was thus passed by majority against the petitioner. It is further stated that except the above agenda, since no other work was to be taken in the meeting, the meeting was declared over. It is pertinent to note that no details as regards request of the petitioner to enter his points in the register as stated in the impugned order, are found mentioned. In view of such proceedings of the meeting, the minutes of the proceedings then written by the talati in the evening of that very day will be of much relevance wherein it is clearly stated that in the meeting, the provisions of section 56(3) were read for right to speak against the motion and though the petitioner asked to speak, the presiding officer said that the petitioner would be allowed to speak after the meeting was over.

Page 6 of 13

C/SCA/9019/2015 JUDGMENT Such minutes of the proceedings drawn by the talati in the evening of the day, if considered with his affidavit, it clearly appears that the petitioner was not allowed to exercise his statutory right to speak against the motion. By now, it is well settled that it is for the concerned authority presiding over the meeting to ask and offer the person facing the motion to exercise his statutory right to speak in the meeting for no-confidence. Right to speak against the motion is statutorily recognized in section 56 of the Act. If there is violation of such statutory right while passing the no confidence motion, the no confidence motion could not be said to have been validly passed. Such no confidence motion cannot stand scrutiny of law and is required to be quashed and set aside.

11. In the case of Geetaben Bharatbhai Patel versus State of Gujarat and Ors. reported in 2006 (1) GLH 91, this Court has held and observed in para 14 to 16 as under:

"14. Based on the above judicial pronouncements, it is necessary to examine whether the provisions of section 56(3) of the said Act which provide that a Sarpanch, or as the case may be, an Upa-Sarpanch though shall not preside over a meeting in which a motion of no confidence is discussed against him, shall have a right to speak or otherwise to take part in the proceedings of the no confidence motion including right to vote; is a mandatory requirement of law or is merely directory so that the proceedings of no confidence motion would not vitiate even if the requirement is not strictly fulfilled.

15. From the above recording of the relevant provisions of the said Act and the said Rules and in particular rules 29 to 35, it can be seen that even in the capacity of a member of the Panchayat, Sarpanch against whom no confidence motion is being conducted would have a right to participate and to speak subject, of course, to the provisions contained in rules 29 to 35 of the said Rules. Section 56(3) of the said Act not only preserves this right, but highlights the aspect that a Page 7 of 13 C/SCA/9019/2015 JUDGMENT Sarpanch, or as the case may be, an Up-Sarpanch who is facing no confidence motion though shall not preside over such a meeting, but he shall have a right to speak or otherwise to take part in the proceedings of such a meeting as also shall have a right to vote. The words "shall have a right to speak or otherwise to take part in the proceedings of such a meeting" have been used by the Legislature advisedly and unless it is found from the attending provisions of the statute that the Legislature intended that such provision should not be mandatory, it is not possible to hold that the requirement is merely directory in nature. A right to address a meeting or otherwise to take part in the proceedings including to vote are statutory rights vested in the Sarpanch or Upa-Sarpanch who is facing a no confidence motion. A no confidence motion has to be tabled and debated before the same can be put to vote. A Sarpanch whose position and reputation are at stake definitely has a right to speak at such a meeting and when denied such a right, prejudice would be caused to him or her, as the case may be. In a democracy when an elected Sarpanch or, as the case may be, an Up-Sarpanch is being sought to be removed through a motion of no confidence and when the provisions of section 56(3) of the said Act specifically provide that a Sarpanch or, as the case may be, Up-Sarpanch who is facing such a no confidence motion shall have a right to speak, it is not possible to hold that such a requirement is merely directory in nature. The Sarpanch or, as the case may be, Up-Sarpanch, through his persuasive power or logical arguments may be able to prevail upon some of the members present at the meeting to change their mind and persuade them to oppose the no confidence motion. By denying the Sarpanch or, as the case may be, Up- Srapanch an audience altogether, this statutory right is being violated. It is not possible to judge the prejudice that may be caused in an individual case by the denial of such a right. It is also not possible to interpret the provisions of section 56(3) of the said Act keeping in mind an individual fact situation in a given case. It is, therefore, not possible to accept the contention of the learned advocate Shri Raval for respondent No.6 that in the present case when as many as 14 out of 17 members voted in favour of no-confidence motion, no prejudice was caused to the petitioner even if she was denied the right to speak at the meeting and that eventually what matters is the opinion of two-

Page 8 of 13

C/SCA/9019/2015 JUDGMENT third members of the Panchayat that no confidence motion should be adopted. What would have been the position if the petitioner was permitted to speak and participate in the said meeting is not possible to predict. Before a no confidence motion could be put to vote, the petitioner had a statutory right to address the meeting. When such a mandatory requirement of law was not followed, all consequential steps of putting the motion to vote and counting of votes and adoption of resolution would automatically fail having no effect or validity.

16. In view of the conclusion that I have reached, namely, that the requirement of section 56(3) of the said Act is mandatory in nature and not merely directory, all consequential steps from the stage of voting of no confidence motion and its adoption by the meeting would be rendered nonest and ineffective, since it is factually concluded in the earlier portion of the judgment that the petitioner was not given an opportunity to speak at the meeting or in any other manner to participate except to vote."

12. The Court finds in the facts of the case that the right available to the petitioner under section 56 of the Act to speak against the motion of no confidence was violated, therefore, no confidence motion passed against the petitioner in the meeting held on 26.12.2014 was invalid and cannot be allowed to stand. The petition is therefore required to be allowed.

13. Learned Advocate Mr. Munshaw however submitted that since the petitioner is responsible to approach this court after the election of the sarpanch was held, even if the petitioner is to succeed in the petition, this court may not grant relief to the petitioner of restoring him in his original position of sarpanch However, such contention raised by the learned advocate Mr. Munshaw cannot be accepted for two reason. One is that the petitioner had already approached earlier before this court against the no confidence motion passed on the ground that the no confidence motion was not legally and validly Page 9 of 13 C/SCA/9019/2015 JUDGMENT passed but the petitioner was permitted to raise such contention by representation before respondent no.3 and the process of deciding the representation of the petitioner was on and it could be only by the impugned order dated 16.5.2015, respondent No.3 decided the representation of the petitioner and, therefore, at least till 16.5.2015, it could not be said that the petitioner was in any way responsible for delay. It however appears that immediately after the impugned order was made, on 17.5.2015, the election of sarpanch was held, may be the process for election had commenced earlier but the petitioner has then not consumed more time in approaching this court when he approached on 25.5.2015. In view of such fact situation of the case, the petitioner cannot be deprived of the fruits of his success before this court against the motion of no confidence. It is required to note that the election of sarpanch on 17.5.2015 was on account of vacation of the office of sarpanch as a result of no confidence motion passed against the petitioner. However, against such no confidence motion, if the petitioner is to succeed, the elected sarpanch has to go by vacating the office of the sarpanch soas to make room for the petitioner and for such purpose, elected sarpanch is not to be heard. At this stage, reference to the decision of the Hon'ble Division Bench of this Court in the case of Mahendrabhai Chanabhai Kanodiya versus Vakata Bhagvanbhai Devabhai and others, reported in 2011 (3) GLH 120 is required to be made. In the case of Mahendrabhai (supra), Hon'ble Division Bench of this Court held and observed in para 15 to 18 as under:

"15. We are of the opinion that the applicant herein has no legal right to say that since he has already been elected as Sarpanch, he should now be permitted to continue in the office of Sarpanch, inspite of Court holding that the removal of respondent No.1 - original petitioner from the office of Sarpanch was illegal and unconstitutional. If the judgment relied upon by learned counsel for the applicant in the case of Dipakbhai (supra) is applied blanketly, then in such a situation in all cases relating to matters Page 10 of 13 C/SCA/9019/2015 JUDGMENT of election, the Courts will have to grant relief pending final consideration of the matter and that would again not be possible and permissible.

16. We once again at the cost of repetition deem fit to state that removal from the post of Sarpanch brings to bear on the elected person or holder of the public office by election, serious consequences, some times more severe penalties prescribed and at times disastrous impact on fair name and good reputation obtained and acquired in course of public life. If the elected persons are allowed to be removed on such jejune grounds, it would simply mean throttling down the principle of democracy in the local self-bodies and the elected representatives of the people like the respondent no.1 herein - original petitioner would be made to lose their tenure at the altar of the arbitrary exercise of powers by the officers who have been charged with the duty under the Act to at least addressed themselves to the real object behind such provisions, besides the grounds and procedure. In spite of all these, today if we accept the prayer of the applicant herein to permit him to continue as Sarpanch, it will be nothing short of mockery of justice.

17. We would also like to look into one another legal issue as it assumes importance, not only so far as the present case is concerned, but even as a broad principle of law. We have discussed in the earlier part of our judgment that on the principle of lis pendens any action or any development which takes place during the pendency of any legal proceeding, then the said action or development would always be subject to the final outcome of the proceeding which would finally decide the rights and obligations of the respective parties. The term "lis pendens" as explained in the Law Lexicon is as under :

"Lis means a suit, action controversy,or dispute, and lis pendens means a pending suit. The doctrine denotes those principles and rules of law which define and limit the operation of the common-law maxim pendente lite nihil innovetur, that is, pending the Page 11 of 13 C/SCA/9019/2015 JUDGMENT suit nothing should be changed.

A pending suit.

As soon as proceedings are commenced to recover or charge some specific property [Ex parte Thornton (1867)2 Ch.p.178] there is "lis pendens" - a pending suit, the consequence of which is that until the litigation is at an end neither litigant can deal with the property to the prejudice of the other.

A lis pendens is defined in Wharton's Law Dictionary as a pending suit. "Lis" means a suit, action, controversy, or dispute, and dispute is a conflict or contest, while controversy is a disputed question, a suit at law; and the pendens of the lis is not disturbed on in any manner affected by the fact of an appeal taken from one Court to another. The litigation or contest still goes on.

The rule of "lis pendens" is statutory and imposes two conditions:(i) the existence of a contentious suit, and (ii) that the transfer should be during its active prosecution in a Court of the kind described in S.52, Transfer of Property Act. (31 B.393=9 Bom LR 530)."

The maxim "Pendente lite nihil innovetur"

according to the Law Lexicon is as under :-

"During a litigation nothing new should be introduced. During a litigation no change in the position of things, or of parties, can be made."

Applying this principle of law, during the pendency of a petition, nothing new can be introduced and if at all anything new is introduced, the same would also be subject to the final outcome of the petition, which would decide the rights and obligations of the parties.

18. We are of the view that it is not even Page 12 of 13 C/SCA/9019/2015 JUDGMENT necessary to clarify that any action during the pendency or say, in the present case, fresh election to the post of Sarpanch, shall be subject to the final outcome of the petition. The principle of "lis pendens" itself can be termed as a constructive notice of the fact that if election is conducted during the pendency of the petition, the same shall be subject to the final outcome of the petition and the person elected in the said election would be bound by the final order, which the Court may pass ultimately."

14. In light of the above and for the reasons stated above, the petition is allowed. The impugned order dated 16.6.2015 is quashed and set aside. It is declared that the no confidence motion passed against the petitioner in the meeting held on 26.12.2014 is invalid. Consequently, the petitioner is to be restored on his original position of sarpanch of Pedhla Gram Panchayat, Taluka Jetpur, District Rajkot. Rule is made absolute. Direct Service is permitted.

(C.L.SONI, J.) anvyas Page 13 of 13

Unlock Advanced Research with PRISMAI

Gujarat High Court