Gujarat High Court
Suresh Vallabhbhai Sukhreliya & 25 vs Shardaben Harshubhai Barot & 3 on 27 June, 2016
Author: S.H.Vora
Bench: S.H.Vora
C/CA/5307/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 5307 of
2016
with SPECIAL CIVIL APPLICATION NO. 9171 of 2016
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SURESH VALLABHBHAI SUKHRELIYA & 25....Applicant(s)
Versus
SHARDABEN HARSHUBHAI BAROT & 3....Respondent(s)
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Appearance:
MR PJ KANABAR, ADVOCATE for the Applicant(s) No. 1 - 26
MR. BHAUMIK DHOLARIYA, ADVOCATE for the Applicant(s) No. 1 - 26
ADVANCE COPY SERVED TO GP/PP for the Respondent(s) No. 2
MS ASMITA PATEL, AGP for the Respondent(s) No. 2 - 3
MR DHAVAL D VYAS, ADVOCATE for the Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 4
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CORAM: HONOURABLE MR.JUSTICE S.H.VORA
Date : 27/06/2016
ORAL ORDER IN CA
1. Jetpur Navagadh Nagar Palika is managed by the councilors elected under section 7 of the Gujarat Municipality Act, 1963 (for short "the Act") and the duration of the municipality and the councilors elected under section 7 of the Act is for a term of five years. In February, 2013, the election for the councilors of the said Nagarpalika was held and result of the election was declared on 12.12.2013. In the first meeting, the President and the Vice President from amongst the councilors were elected under section 32 of the Act. Upon Page 1 of 4 HC-NIC Page 1 of 4 Created On Wed Jun 29 02:16:22 IST 2016 C/CA/5307/2016 ORDER expiry of the period i.e. two and half years from the election, the petitioner came to be elected as President of the said Nagarpalika on 24.8.2015 and he took the charge on 26.8.2015. Along with the petitioner, one Mr. Pramodbhai Trada elected as Vice President of the said Nagarpalika - respondent No.3 herein. It is a matter of fact that said Vice President has resigned on 13.6.2016 and as such otherwise, he would have been necessary party in the present proceedings, but since now, he has resigned, the Court is not considering the said aspect of the matter at this stage.
2. By way of this petition, the petitioner challenges convening of the meeting of the councilors of Jetpur Navagadh Nagarpalika on the requisition of no confidence dated 21.5.2016.
3. On 20.5.2016, a Special General Meeting of the said Nagarpalika was convened and the motion of no confidence failed as it was not supported by the statutory majority provided under section 36(2) of the Act. Similarly, such motion also failed qua Vice President Mr. Pramodbhai Trada. It is an admitted fact that both the motions dated 20.5.2016 and 21.5.2016 were moved for same and identical reasons/ causes. There is no doubt in the mind of this Court that fresh or second motion of no confidence is permissible within a period of three months from the earlier motion of no confidence. In the instant case, upon failure of first motion on 20.5.2016 for the reasons narrated therein, the second motion came to be moved for the same reasons on the next date i.e. 21.5.2016. At this stage, observations made by the Hon'ble Apex Court in case of Vipulbhai M. Chaudhari Vs. Gujarat Page 2 of 4 HC-NIC Page 2 of 4 Created On Wed Jun 29 02:16:22 IST 2016 C/CA/5307/2016 ORDER Cooperative Milk Marketing Federation Limited and others reported in (2015) 8 SCC 1, more particularly, para 52.2 requires to be reproduced as under:
"Having regard to the set up in local self- governments prevailing in many of the States as above, we direct that in the case of co-operative societies registered under any Central or State law, a motion of no confidence against an office bearer shall be moved only after two years of his assumption of office. In case the motion of no confidence is once defeated, a fresh motion shall not be introduced within another one year. A motion of no confidence shall be moved only in case there is a request from one-third of the elected members of the Board of Governors/Managing Committee of the co- operative society concerned. The motion of no confidence shall be carried in case the motion is supported by more than fifty per cent of the elected members present in the meeting. "
4. Considering the facts of both the motions, it is quite evident that both are moved on the same set of facts and therefore, though it is permissible to move no confidence motion at any time under the provisions of law, but the issue is whether once the motion moved earlier failed for the reasons recorded in the requisition, is it permissible to move same motion again for the same reason is an issue, which requires consideration.
5. In view of above position, this Court do not find any reason to discontinue the interim relief as granted by this Court and therefore, civil application for vacation of stay is rejected. Rule discharged.
Page 3 of 4HC-NIC Page 3 of 4 Created On Wed Jun 29 02:16:22 IST 2016 C/CA/5307/2016 ORDER ORAL ORDER IN SCA Since the issue as to whether it is permissible to move same motion again for the same reason requires consideration, issue Rule to the respondents making it returnable on 1.7.2016. Learned AGP Ms. Asmita Patel waives service of notice of rule for respondent Nos.1 and 2, learned advocate Mr. B.P. Trivedi waives service of rule for respondent No.3 and learned advocate Mr. PJ Kanabar waives service of rule for respondent Nos.4 to 29. It is stated at bar that the pleadings are completed. The parties are directed to proceed with the final hearing of the matter on scheduled date since the Hon'ble Division Bench in LPA No.520 of 2016 has directed to decide and dispose of the matter finally on 1.7.2016 or else as expeditiously as possible.
(S.H.VORA, J.) shekhar Page 4 of 4 HC-NIC Page 4 of 4 Created On Wed Jun 29 02:16:22 IST 2016