Gujarat High Court
Bharatbhai Ravjibhai Vadi vs State Of Gujarat on 4 August, 2021
Author: Vaibhavi D. Nanavati
Bench: J.B.Pardiwala, Vaibhavi D. Nanavati
C/LPA/983/2018 JUDGMENT DATED: 04/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 983 of 2018
In R/SPECIAL CIVIL APPLICATION NO. 8204 of 2018
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2018
In R/LETTERS PATENT APPEAL NO. 983 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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BHARATBHAI RAVJIBHAI VADI
Versus
STATE OF GUJARAT & 4 other(s)
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Appearance:
MR BM MANGUKIYA(437) for the Appellant(s) No. 1
MS BELA A PRAJAPATI(1946) for the Appellant(s) No. 1
MR CHINTAN DAVE, AGP for the Respondent(s) No. 1
MR. JAY M THAKKAR(6677) for the Respondent(s) No. 5
MS RV ACHARYA(1124) for the Respondent(s) No. 4
NOTICE SERVED(4) for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 04/08/2021
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C/LPA/983/2018 JUDGMENT DATED: 04/08/2021
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI)
1. This appeal under Clause 15 of the Letters Patent is at the instance of an unsuccessful writ-applicant and is directed against the order passed by the learned Single Judge dated 11.7.2018 in the Special Civil Application No.8204 of 2018 by which the learned Single Judge rejected the writ-application filed by the original writ-applicant.
2. The facts giving rise to this appeal may be summarised as under :-
2.1 The appellant (original writ-applicant) was elected as a Sarpanch in the election held on 29.12.2016 of the Borvav Gram Panchayat and was handed over charge on 17.1.2017.
The panchayat consists of 11 members including the Sarpanch. Out of 11 members, 08 members moved a motion of no confidence against the appellant on 1.5.2018 for which the respondent No.4 - Talati-cum-Mantri issued a communication dated 2.5.2018 calling for a meeting. The agenda of the meeting was issued on 8.5.2018 for the meeting to be convened on 15.5.2018 in the office of the Gram Panchayat, Borvav at 11:00 a.m. to discuss the motion of no confidence. All the members remained present in the meeting. 08 members voted in favour of the motion of no confidence against the appellant. The motion of no confidence was passed by majority of members present in the meeting.
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3. The minutes of the meeting alongwith the resolution dated 15.5.2018 is produced below :-
"The aforesaid members are present in today's Meeting and as there is full Coram, the proceeding of the meeting has been started.
In today's meeting, the notice of no confidence motion has been given in the prescribed proforma in the Gram Panchayat against the Sarpanch Bharatbhai Ravjibhai Vaadi, on 01/05/18 under the signatures of total 08 members on account of no trust in the administration. Therefore, the Sarpanch circulated the agenda on 08/05/18 and called for the Meeting today. Hence, following proceeding has been carried out.
As the motion of no-confidence has been passed against the Sarpanch. The chair has been presided over by the deputy Sarpanch Vijayaben Mansukhbhai Desai. Following procedure has been carried out in the Meeting.
Point No.1- Regarding motion of no-confidence against the Sarpanch:-
Resolution-1: Perusing the motion of no-confidence against the Sarpanch under the signatures of total 08 (Eight) members in this Meeting and after discussing in detail about section-56 of The Panchayat Act and Panchayat rules, the complete understanding regarding the motion of no-confidence has been given. The total number of members of Gram Page 3 of 14 Downloaded on : Fri Sep 10 12:07:10 IST 2021 C/LPA/983/2018 JUDGMENT DATED: 04/08/2021 Panchayat is 10+1=11. As per rule, the majority of total 08(eight) members i.e. 2/3 members is required therefore the neutral, voluntary and lawful voting has been conducted in this regard as per rule. And following members have voted in favour of motion of no-confidence i.e. against the Sarpanch on account of no-trust in the administration of the Sarpanch. As the voting has to be made by raising the hand, the understanding has been given as per the bye-rule of Panchayat.
All the present members were given understanding with regard to aforementioned details. In that regard, since there seems no further question, proceeding for election was initiated under the chairmanship of Deputy Sarpanch. Signatures of the members in favour of No-confidence motion against the administration of Sarpanch were obtained.
Sr. Name Signature
no.
1 Rameshbhai Savjibhai Bambhva illegible
2 Gitaben Bhupatbhai Paghdal illegible
3 Vijayaben Bhupatbhai Rupareliya illegible
4 Parvatiben Vithalbhai Savaliya illegible
5 Vijayaben Mansukhbhai Desai illegible
6 Yusufbhai Sulemanbhai Mori illegible
7 Bhikhabhai Gandabhai Parmar illegible
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8 Mavjibhai Somabhai Makadiya illegible
As mentioned above, in accordance with Panchayat Act, No- confidence motion was favoured by 8 members i.e 2/3 of the total members against the Sarpanch. Hence, as per rules, no confidence motion is passed.
As there was no other proceedings to be carried out in todays meeting. The meeting was declared over by the chairman at 11 o'clock after thanking all the members."
3.1 Being aggrieved and dissatisfied with the above referred resolution the appellant came to this Court seeking to challenge the motion of no confidence passed against him.
4. The learned Single Judge while rejecting the writ- application made the following observations in paragraphs 8 to 12 :-
"8. Before dealing with the rival contentions raised by the learned Advocates for the parties, it would be beneficial to refer to the relevant provisions contained in Section 56(3) of the said Act, which reads as under:-
"56. Motion of no-confidence.
(1) xxx (2) xxx (3) Notwithstanding anything contained in this Act or the rules made thereunder a Sarpanch or, Page 5 of 14 Downloaded on : Fri Sep 10 12:07:10 IST 2021 C/LPA/983/2018 JUDGMENT DATED: 04/08/2021 as the case may be, an UpaSarpanch, shall not preside over a meeting in which a motion of no confidence is discussed against him, but he shall have a right to speak or otherwise to take part in the proceedings of such a meeting (including the right to vote)."
9. From the bare reading of the said provisions, it transpires that the Sarpanch against whom the motion of no confidence is moved, can not preside over the meeting, but he has right to speak or otherwise to take part in the proceedings of such meeting, including the right to vote. Hence, the Sarpanch against whom the motion is moved could exercise his right to speak before the motion is passed or otherwise he could take part in the proceedings, including to exercise his right to vote. There is no right conferred on him to invite him to speak. It could never be the proposition that until he exercises his right to speak, motion could not be passed. It would be his choice or discretion whether to exercise his right to speak and raise objection against the motion, or otherwise to participate in the proceedings.
10. So far as the facts of the present case are concerned, as transpiring from the minutes of the meeting, 11 members including the petitioner had remained present in Page 6 of 14 Downloaded on : Fri Sep 10 12:07:10 IST 2021 C/LPA/983/2018 JUDGMENT DATED: 04/08/2021 the meeting held on 15.5.2018. Before the voting in the said meeting, all members were explained and made aware about the provisions contained in Section 56 of the said Act and were asked to vote by raising hands. It has been specifically mentioned in the minutes that all the members were explained about the provisions of the said Act and Rules, however, none of the members had any issue, and therefore, they were asked to vote by raising hands in favour of the motion. The eight members as mentioned therein had voted in favour of the motion and accordingly the motion of no confidence was passed against the petitioner. It is pertinent to note that apart from the fact that there is nothing on record to suggest that the petitioner had raised any objection or had sought to exercise his right to speak and he was prevented from speaking, there is no such allegation made in the petition also as sought to be made by Mr.Mangukiya in his oral arguments. If the petitioner was denied his right to speak, it would have been specifically mentioned in the petition. It is also not disputed that the petitioner himself was present in the meeting and had put his signature in the minutes of the meeting, meaning thereby he had participated in the said proceedings. Under the circumstances, the petitioner having chosen not to exercise his right to speak and on the contrary having participated in the proceedings, it could not be said by Page 7 of 14 Downloaded on : Fri Sep 10 12:07:10 IST 2021 C/LPA/983/2018 JUDGMENT DATED: 04/08/2021 no stretch of imagination that there was violation of the provisions contained in Section 56(3) of the said Act.
11.Though much reliance has been placed by Mr.Mangukiya for the petitioner on the decision of this Court in case of Geetaben Bharatbhai Patel(supra), the said decision has no application to the facts of the present case, inasmuch as in the said case concerned petitioner had opposed the procedure and sought permission to speak at the meeting, however, was denied the opportunity to address the meeting. Under the circumstances, the Court had observed inter alia that there was violation of the provisions contained in Section 56(3) of the said Act, and therefore, all the consequential steps were ineffective. Such is not the situation in the instant case. As stated earlier, the petitioner had chosen not to oppose or exercise his right to speak, but had participated in the said meeting, by putting his signature. The contents of the minutes of the meeting have also not been disputed by the petitioner in the petition. Hence, it could not be said that there was violation of Section 56(3) of the said Act. The other judgements relied upon by Mr.Mangukiya have in turn relied upon the decision of the this Court in case of Geetaben Bharatbhai Patel(supra), and therefore, have no application to the facts of the present case.
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12. In that view of the matter, the petition being devoid of merits is dismissed."
Submissions on behalf of the appellant (original writ- applicant) :-
5. Mr. B. M. Mangukiya, the learned counsel appearing for the appellant submitted that the appellant attended the meeting dated 15.5.2018 but was not permitted to speak or participate in the proceedings. He submitted that the law is well settled that the appellant is required to be provided an opportunity to speak as per Section 56(3) of the Gujarat Panchayat Act. His main contention is that the resolution of no confidence is illegal as opportunity was not afforded to speak on the motion of no confidence.
5.1 In support of his aforesaid submission he relied on the following decisions (1) Geetaben Bharatbhai Patel vs. State of Gujarat and Ors., reported in 2006 (1) GLH 91 (2) Devshibhai Chanabhai Makwana Vs. State of Gujarat, reported in 2015(0) AIJEL-SC 232754 (3) Kailasba Jilubha Jadeja vs. State of Gujarat and Ors., reported in 2015(2) GLR 1168 (4) Suvarnaben Chetanbhai Raval vs. State of Gujarat, reported in 2014 (5) GLR 4277.
Submissions on behalf of the respondent No.5 :-
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6. Per contra, Mr. Jay M. Thakkar, the learned counsel appearing for the respondent No.5 submitted that the ratio laid down in the case of 2006 (1) GLH page-91 is not applicable to the appellant in view of the fact that the minutes of the meeting as recorded would indicate that the appellant had participated in the proceedings and had raised no objection against the motion. The appellant chose not to exercise his right to speak and, therefore, it could not be gainsaid that the appellant was denied the right to speak which violated Section 56(3) of the Act.
6.1 In support his submissions he relied on a decision delivered by this Court in the Special Civil Application No.16981 of 2017 which came to be affirmed by a Division Bench of this Court in the Letters Patent Appeal No.145 of 2018.
6.2 The following observations made by the Division Bench of this Court in the Letters Patent Appeal No.145 of 2018 in paragraphs 5 and 6 are produced below :-
"5. Section 56 of the Gujarat Panchayat Act, 1993 provides for moving no confidence motion against the Sarpanch and Up-Sarpanch. As per Section 56(3) of the Act, if any no confidence motion is moved against the Sarpanch or UpSarpanch, they cannot preside over the meeting but they have right to speak or otherwise to take part in proceedings Page 10 of 14 Downloaded on : Fri Sep 10 12:07:10 IST 2021 C/LPA/983/2018 JUDGMENT DATED: 04/08/2021 of such meeting. In the present case on hand, it is not in dispute that after requisition is made for moving no confidence motion, the appellant was informed vide letter dated 21.8.2017 by which she was called upon to remain present in the meeting in the office of the village panchayat at 1.00 p.m. on 31.8.2017. The receipt of such letter is not disputed but it is submitted that she was waiting outside. When the panchayat meeting was held to discuss the no confidence motion moved against the appellant, there is no reason for the appellant to wait outside the panchayat office having received the notice. If the appellant wanted to say anything, it was open for her to participate in the meeting and to speak. But having failed to utilize the opportunity, it cannot be said that the appellant was denied opportunity of hearing. Even with regard to other contention that the meeting was preceded by Taluka Panchayat Officer also is no ground to invalidate the resolution dated 31.8.2017 on the said ground. Merely because the Taluka Panchayat Officer has participated in the meeting, it has not caused any prejudice to the appellant so far as to defend the no confidence motion moved against the appellant. If at all such participation also is not correct, the same can be considered as irregularity but not illegality so as to invalidate the resolution itself.
6. For the aforesaid reasons and in view of the reasons assigned by the learned Single Judge in the order dated 23.1.2018, we are of the view that no case is made out for interference in this appeal filed under Clause 15 of the Letters Patent. Appeal is devoid of merits and accordingly dismissed.Page 11 of 14 Downloaded on : Fri Sep 10 12:07:10 IST 2021
C/LPA/983/2018 JUDGMENT DATED: 04/08/2021 Consequently, civil application also stands dismissed. No order as to costs."
Analysis :-
7. Having heard the learned counsel appearing for the respective parties, we are at one with the decision of the learned Single Judge. The learned Single Judge has rightly held after going through the records transpiring from the minutes of the meeting that 11 members including the appellant remained present in the meeting which was held on 15.5.2018. All the members were explained and made aware about the provisions of Section 56(3) of the Act and were asked to vote raising their hands. It is further noted by the learned Single Judge that apart from the fact that there is nothing on record to suggest that the appellant had raised any objection or had sought to exercise his right to speak and was prevented from speaking. There is no other allegation made by the appellant in the writ-application but for oral arguments. It is not disputed by the appellant himself that he remained present in the meeting and had put his signature in the minutes of the meeting meaning thereby that he had participated in the proceedings.
7.1 Under such circumstances, when the appellant himself had chosen not to exercise his right to speak and had actually participated in the proceedings, it could not be said that Page 12 of 14 Downloaded on : Fri Sep 10 12:07:10 IST 2021 C/LPA/983/2018 JUDGMENT DATED: 04/08/2021 Section 56(3) of the Act stood violated. We are also at one with the decision of the learned Single Judge when the learned Single Judge has considered the case of the Geetaben Bharatbhai Patel vs. State of Gujarat and Ors., reported in 2006 (1) GLH page-91 in which the appellant of the said writ-
application had opposed the procedure and sought permission to speak at the meeting, however was denied an opportunity which was violative of Section 56(3) of the Act. Clearly such is not a case in the present appeal. When one does not deem fit to speak and having signed the minutes of the meeting without any objections, it certainly cannot be said that there is any infirmity in the resolution dated 15.5.2018 and, therefore, we see no reason to interfere in the order passed by the learned Single Judge and also in view of the decision of the Coordinate Bench in the Letters Patent Appeal No.145 of 2018.
9. While dealing with the present appeal, one has to bear in mind that a intra Court appeal is really not a statutory appeal preferred against the judgment and order of an inferior to the superior Court. The appeal inter se in a High Court from one Court to another is really an appeal from one coordinate Bench to another Coordinate Bench and it is for this reason that a writ cannot be issued by one Bench of the High Court to another Bench of the High Court nor can even the Supreme Court issue writ to a High Court. Thus, unlike an appeal, in general, an intra Court appeal is an appeal on principle and Page 13 of 14 Downloaded on : Fri Sep 10 12:07:10 IST 2021 C/LPA/983/2018 JUDGMENT DATED: 04/08/2021 that is why, unlike an appeal, in an ordinary sense, such as a criminal appeal, where the whole evidence on record is examined afresh by the appellate Court, what is really examined, in an intra Court appeal, is the legality and validity of the Judgment and/or Order of the Single Judge and it can be set aside or should be set aside only when there is a patent error on the face of the record or the judgment is against the established or settled principle of law. If two views are possible and a view, which is reasonable and logical, has been adopted by a Single Judge, the other view, howsoever appealing such a view may be to the Division Bench, it is the view adopted by the Single Judge, which should, normally, be allowed to prevail. Hence, the impugned judgment of the learned Single Judge should not be completely ignored and this Court has to consider the judgment and order in its proper perspective and if this Bench, sitting as an appellate Bench, is of the view that the decision has been arrived at by the learned Single Judge without any material error of fact or law, then, the judgment, in question, should be allowed to prevail.
10. In the result, this appeal fails and is hereby dismissed.
(J. B. PARDIWALA, J) (VAIBHAVI D. NANAVATI,J) K.K. SAIYED Page 14 of 14 Downloaded on : Fri Sep 10 12:07:10 IST 2021