Gujarat High Court
Aatulbhai Tapubhai Nakum vs State Of Gujarat on 1 May, 2015
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/2393/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2393 of 2015
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AATULBHAI TAPUBHAI NAKUM....Petitioner(s)
Versus
STATE OF GUJARAT, THROUGH SECRETARY, & 5....Respondent(s)
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Appearance:
MR BM MANGUKIYA, ADVOCATE for the Petitioner(s) No. 1
MS BELA A PRAJAPATI, ADVOCATE for the Petitioner(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 4 - 6
MR MANAN MEHTA AGP for the Respondent(s) No. 1 - 2
MR C P CHANIYARA, ADVOCATE for the Respondent(s) No. 3
MR. DINESH N TRIVEDI, ADVOCATE for the Respondent(s) No. 3
NOTICE SERVED for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 01/05/2015
ORAL ORDER
Heard Mr. Mangukiya, learned advocate for the petitioner, Mr. Chaniyara, learned advocate for the respondent No.3, and Mr. Mehta, learned AGP for the respondent Nos.1 and 2.
2. In present petition, the petitioner has prayed, inter alia, that:-
"47(B) Be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus, and to quash and set aside the impugned order passed by the respondent no.2 Page 1 C/SCA/2393/2015 ORDER dated 05.12.2014 in Appeal No.83/14, confirming the order passed by the respondent no.3 dated 24.09.2014, suspending the petitioner from the post of Sarpanch of Gram Panchayat, Mandal.
(C) Pending admission and final disposal of the present petition, be pleased to stay the implementation, execution and operation of the impugned order dated 05.12.2014 passed by the respondent no.2 in Appeal No.83/14, confirming the order passed by the respondent no.3 dated 24.09.2014, suspending the petitioner from the post of Sarpanch of Gram Panchayat, Mandal. And further be pleased to restrain the respondents, their agents and servants from restraining the petitioner from discharging his duty as Sarpanch of Gram Panchayat, Mandal."
3. After hearing the petitioner, the Court passed order dated 9.2.2015, which reads thus:-
"Heard Ms.Bela A. Prajapati, learned advocate for the petitioner.
Issue Notice returnable on 19.02.2015.
In addition to the normal mode of service, Direct Service is also permitted."
4. Subsequently, the petitioner circulated Draft Amendment dated 28.4.2015 and requested for Page 2 C/SCA/2393/2015 ORDER permission to amend the petition in terms of the said Draft Amendment. Under order dated 28.4.2015, the Court granted the permission. The said order dated 28.4.2015 reads thus:-
"1. Learned advocate for the petitioner has tendered Draft Amendment dated 28.04.2015 and requested for permission to amend the petition in terms of Draft Amendment dated 28.04.2015.
2. The permission, as prayed for, is granted. The petitioner may amend the petition in terms of Draft Amendment dated 28.04.2015 by adding Paragraph No.37(A) and 37(B) after Paragraph No.37 and adding Paragraph No.47(BB) and 47(BBB) after Paragraph No.47(B) in the memo of the petition. Amendment to be carried out forthwith.
3. The petitioner has also prayed for permission to add respondent nos.4, 5 and 6. in the cause title. Request to amend the cause title of the petition is granted. The petitioner will carry out the amendment forthwith.
4. After the amendment is carried out, ISSUE NOTICE to the newly added respondents returnable on 30.04.2015. Direct service is permitted, today."
4.1 By the said amendment, the petitioner sought to place on record the fact that during pendency Page 3 C/SCA/2393/2015 ORDER of the petition, the respondent authorities have declared bye-election for the post which the petitioner held before the impugned order came to be passed.
4.2 The petitioner has, by the said amendment, also prayed for additional interim relief to the effect that the notification dated 27.4.2015 declaring bye-election for the post of Sarpanch of Mandal Gram Panchayat i.e. the post which the petitioner hold before the order impugned in present petition came to be passed, be stayed. 4.3 Though the request for amending the petition in terms of the said draft amendment was granted vide order dated 28.4.2015, any objections or any further affidavit in reply by any respondents is, as of this day, not filed more particularly with reference to the details introduced by the petitioner by way of draft amendment and/or the relief prayed for by virtue of the said Page 4 C/SCA/2393/2015 ORDER amendment.
5. In the main petition, the petitioner has challenged the order dated 5.12.2014 passed by the respondent No.2 confirming the order dated 24.9.2014 passed by the respondent No.3 whereby the petitioner is suspended from the post which he held, i.e. from the post of Sarpanch. The said order is passed under section 59(1) of the Act. As mentioned earlier, the said order is under challenge in this petition.
6. During pendency of the petition and while the Court was considering petitioner's request for interim relief against the said orders dated 24.9.2014 and 5.12.2014, the respondents issued notification dated 27.4.2015 and declared bye- election for the post of Sarpanch of Mandal Gram Panchayat.
7. Learned advocate for the petitioner submitted Page 5 C/SCA/2393/2015 ORDER that the said action is taken only to frustrate petitioner's challenge against the impugned orders and that even if the said orders dated 24.9.2014 and 5.12.2014 are treated to be valid and petitioner's claim against the said orders are not accepted, then also, the order passed under section 59 of the Act suspending the Sarpanch / Up-Sarpanch from the post does not create any vacancy and that therefore, there was no occasion or justification for the respondents to issue notification and declare bye-election. With the said submission and in aforesaid factual background, the petitioner has prayed for interim relief against the said notification.
8. It is true that, ordinarily, when the election is declared and the process is put in motion, then, the Court would not interfere with the programme of election.
However, when the process is initiated in defiance of the legal position declared by the Page 6 C/SCA/2393/2015 ORDER Court and in such a manner which would render pending petition infructuous or would frustrate the pending proceedings, then, it would amount to extraordinary situation and such situation would call for and justify appropriate order / measures more so when it becomes necessary to eliminate multiplicity of proceedings.
9. In view of the Court, present situation, which has arisen on account of and pursuant to the notification dated 27.4.2015 is such situation and it calls for and justifies appropriate order.
10. It is pertinent to note that the first adjudicating authority passed the order dated 24.9.2014.
10.1 Aggrieved by the said order, the petitioner pursued remedy available under law by preferring appeal before the Development Commissioner.
Page 7 C/SCA/2393/2015 ORDER 10.2 The Development Commissioner passed order dated 5.12.2014 and rejected the appeal preferred by present petitioner.
10.3 Immediately thereafter, the petitioner preferred present petition in February, 2015. 10.4 The Court entertained the petition vide order dated 9.2.2015 and since then, the proceedings are pending before this Court.
11. The record shows that on various occasions, the proceedings have been adjourned at the request of respondents, who prayed for time to file reply.
11.1 The petitioner also, bonafide, did not oppose the request for time by the respondents so as to enable them to file reply.
Page 8 C/SCA/2393/2015 ORDER 11.2 However, the respondents, instead of filing reply, used the interregnum to issue the notification declaring bye-election and have come out with the notification dated 27.4.2015 whereby the bye-election for the post of Sarpanch of Mandal Gram Panchayat (i.e. the post which the petitioner held before the impugned orders came to be passed) is declared.
11.3 According to the said notification, the last date for submitting nomination forms is 2.5.2015 and the last date for completing the process of election is 22.5.2015.
11.4 Immediately thereafter, the petitioner moved the Court with draft amendment with a request to permit the amendment in the petition. 11.5 Vide order dated 28.4.2015 the request was granted and the petition was allowed to be amended. By virtue of the said amendment, the Page 9 C/SCA/2393/2015 ORDER petitioner has added paragraph No.37A and 37-B and also introduced paragraph Nos.47(BB) and (BBB). The paragraph Nos.47(BB) and (BBB) read thus:-
"(BB) Be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction in the nature of mandamus, and quash and set aside the notification dated 27.04.2015 for holding bye-election for the post of Sarpanch of Mandal Gram Panchayat - Annexure - Z-6 to this petition;
(BBB) Pending hearing and final disposal of this petition, this Hon'ble Court be pleased to stay the implementation, execution and operation of the notification dated 27.04.2015 issued by the State Election Commission Officer and Prant Officer, Rajula, District Amreli, Annexure-Z-6 to this petition, and be further pleased to stay the bye-
election of Mandal Gram Panchayat, pursuance to said notification."
12. Since then, until now, any affidavit opposing the relief prayed for by the petitioner by virtue of the amendment in the petition is not filed by any respondents, though hearing was adjourned to grant time to the respondents.
Page 10 C/SCA/2393/2015 ORDER
13. At this stage, it is relevant to take into account the decision of this Court in case of Ataji Chhanaji Thakore & Ors. v. District Development Officer & Ors. [1995(1) GLH 1064]. In the said decision, the Court has observed and held that:-
"3. The learned Counsel for the petitioners contended that Section 53(3) of the said Act did not authorise appointment of an Administrator in the event of suspension of Sarpanch and for Upa- Sarpanch. On the other hand the learned Counsel appearing for the respondents contended that when Sarpanch and Upa--Sarpanch both get suspended, vacancies can be said to have arisen, warranting appointment of the Administrator. Reliance was placed in support of this submission on the provisions of Section 53(3) of the said Act, under which when offices of both the Sarpanch and Upa-- Sarpanch become vacant simultaneously, the Taluka Development Officer in the case of a Gram Panchayat may authorise an officer, pending the election of the Sarpanch. to exercise all the powers and perform all the functions and duties of Sarpanch.
4. Under Section 47 of the said Act, all the executive powers of a Gram Panchayat vest in the Sarpanch. In absence of the Sarpanch, the Upa- Sarpanch is required to preside over and regulate Page 11 C/SCA/2393/2015 ORDER the meetings of the Panchayat and pending the election of the Sarpanch, exercise the powers and perform the duties of the Sarpanch as provided in Section 47(2)(ii) of the Act. A Sarpanch or an Upa- Sarpanch against whom any criminal proceedings in respect of an offence involving moral turpitude have been instituted, may be suspended from office by the District Development Officer. Both the Sarpanch and the Upa--Sarpanch were suspended by the District Development Officer so under different orders as aforesaid, in exercise of his powers under Section 5l(l) of the said Act. The moot question which therefore arises is, as to whether suspension of both the Sarpanch and the Upa--Sarpanch warranted appointment of an Officer to discharge the functions of a Sarpanch under Section 53(3) of the said Act on the ground that offices of both the Sarpanch and Upa-Sarpanch had become vacant simultaneously.
Under Section 48 of the Act, there is a provision made regarding motion of no confidence against Sarpanch or Upa--Sarpanch and it is provided that on the motion being carried by a majority as prescribed, the office held by such Sarpanch or the Upa-Sarpanch, as the case may be, shall be deemed to have become vacant. Then there is a provision under Section 49 of the said Act for removal from office of the Sarpanch or the Upa-Sarpanch. There is, however, no provision in Section 51 of the said Act stating that the office of the Sarpanch or the Upa- Sarpanch shall be deemed to be vacant on their being suspended under Section 51(1). On the contrary, under Section 51(2) of the said Act there is a clear provision that where any Sarpanch or Upa- Sarpanch Page 12 C/SCA/2393/2015 ORDER has been suspended under sub-Section (1) of Section 51, another member of the Gram Panchayat shall, subject to the conditions to which the election of the Sarpanch or Upa--Sarpanch was subjected, be elected to perform all the duties and to "exercise all powers of Sarpanch or Upa- Sarpanch during the period for which such suspension continues. This provision clearly indicates that the period of suspension of a Sarpanch or Upa--Sarpanch would not constitute a vacancy in the office of a Sarpanch or Upa--Sarpanch. There is a mandate under sub-Section (2) of Section 51 that in the event of suspension of a Sarpanch or an Upa-Sarpanch, another member of the Gram Panchayat should be elected to perform the duties of a Sarpanch or Upa-Sarpanch, as the case may be. The position would remain the same even if both Sarpanch and Upa-Sarpanch stand simultaneously suspended under Section 51(1) of the said Act.
Therefore, when the case clearly falls under Section 51(2) whereunder provision is made for the interregnum period during which the suspension operates, there would be no occasion for appointing an Officer to function as a Sarpanch under Section 53(3) of the said Act.
5. Thus, since suspension of Sarpanch or Upa- Sarpanch ordered under Section 51(1) did not bring about a vacancy in the office of Sarpanch or Upa- Sarpanch the respondent No. 3 could not have been appointed as an Administrator to discharge the function of Sarpanch, under the provisions of Section 53(3) of the said Act and he has therefore, Page 13 C/SCA/2393/2015 ORDER no right to function as a Sarpanch of the said Panchayat under the order dated 11th April 1994 passed by the Taluka Development Officer on instructions said to have been received by him from the District Development Officer under letter dated 8th April 1994. A Writ of quo warranto is, therefore, issued declaring that the appointment of respondent No. 3 made under Section 53(3) of the said Act to function as a Sarpanch of the Saij Gram Panchayat, is illegal and invalid and he is directed not to discharge functions of a Sarpanch of the said Panchayat under the order dated 11th April 1994, which is hereby set aside. It will now be open to the Panchayat to elect another member of the Panchayat to perform the duties and exercise the powers of a Sarpanch and Upa-Sarpanch during the period for which the suspension of Sarpanch and Upa- Sarpanch continues. Rule is made absolute accordingly with no order as to costs."
14. According to the said decision, suspension of Sarpanch or Up-Sarpanch does not result into and does not create vacancy in the office of or on the post of Sarpanch or Up-Sarpanch. 14.1 When the legal position with regard to suspension of Sarpanch is thus settled and clarified by the Court, there was no reason or justification to issue the notification dated Page 14 C/SCA/2393/2015 ORDER 27.4.2015 with such not haste more so when the petition challenging the orders dated 24.9.2014 and 5.12.2014 is pending before this Court and the Court is considering the petitioner's request / challenge against the said orders and request for interim relief against the said orders.
15. In the backdrop of the facts of this case, to say the least, the attempt of the respondents, though in purported exercise of statutory power, prima-facie, is unjustified and unwarranted. The attempts to frustrate legal proceedings, which are pending in the Court, do not go well and does not speak good about the respondents.
16. The petitioner has prayed for interim relief.
As mentioned earlier, ordinarily, the Court would not interfere with the election programme which is set in motion, however, in present case, the above mentioned factual backdrop brings out that the impugned notification is issued by Page 15 C/SCA/2393/2015 ORDER clearly overlooking and in clear defiance of the decision by the Court in case of Ataji Chhanaji Thakore & Ors. (supra).
17. In this context, the order dated 2.9.2008 in L.P.A. No.932 of 2008 and connected matters as well as the order dated 28.8.2008 in Special Civil Application No.7735 of 2008 and connected matters, also need to be taken into consideration.
17.1 Learned AGP also fairly referred to the order dated 4.2.2010 in Special Civil Application No.1134 of 2010. By the said order, the Court has granted stay against notification declaring election programme and putting the process in motion.
18. Having regard to the said decisions and the facts of the case, this Court is inclined to consider the petitioner's request for interim Page 16 C/SCA/2393/2015 ORDER relief against the impugned notification dated 27.4.2015.
18.1 In view of the facts of the case and for the foregoing reasons, the implementation and operation of the impugned notification dated 27.4.2015 is, by way of ad-interim relief, stayed until the next date of hearing.
18.2 Proceedings are adjourned to 19.6.2015. 18.3 Learned AGP will communicate this order to the concerned authority, i.e. Dy. Collector, Rajula and the concerned Election Officer.
For the said purpose, a copy of this order may be supplied to learned AGP.
(K.M.THAKER, J.) kdc Page 17