Gujarat High Court
Bharatbhai Ravjibhai Vadi vs State Of Gujarat on 11 July, 2018
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/SCA/8204/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8204 of 2018
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BHARATBHAI RAVJIBHAI VADI
Versus
STATE OF GUJARAT
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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
DS AFF.NOT FILED (N)(11) for the RESPONDENT(s) No. 2
MR TIRTHRAJ PANDYA, AGP (1) for the RESPONDENT(s) No. 1
MR. JAY M THAKKAR(6677) for the RESPONDENT(s) No. 5
MR GIRISH RAMAKRISHNAN for MS RV ACHARYA(1124) for the
RESPONDENT(s) No. 3,4
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CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI
Date : 11/07/2018
ORAL ORDER
1. The petitioner, by way of the present petition, has challenged the Resolution dated 15.5.2018 passed by the Gram Panchayat, Borvav passing 'No Confidence Motion' against the petitioner.
2. As per the case of the petitioner, the petitioner was elected as the Sarpanch of Borvav Gram Panchayat in the election held on 29.12.2016 and was handed over charge on 17.1.2017. The said Panchayat consisted of 11 members, including the Sarpanch. Out of the said members, 8 members had moved a motion of no confidence against the petitioner on 1.5.2018, for which the respondent No.4 Talati-cum-Mantri had issued communication dated 2.5.2018 for Page 1 of 8 C/SCA/8204/2018 ORDER calling the meeting. Accordingly, the agenda notice was issued on 8.5.2018 for calling the meeting on 15.5.2018 in the office of Gram Panchayat, Borvav at 11 a.m., for the purpose of passing the said motion of no confidence. During the said meeting, all the members of Gram Panchayat had remained present and 8 members voted in favour of the said motion of no confidence against the petitioner. The copy of the minutes of the meeting is produced at Annexure-C. According to the petitioner, he was not provided an opportunity to speak in the said meeting as contemplated in Section 56(3) of the Gujarat Panchayats Act, 1993 (hereinafter referred to as "the said Act"), and therefore, the said motion was ex facie bad in law.
3. The petition has been resisted by the respondent No.4 Talati-cum-Mantri by filing an affidavit- in-reply contending inter alia that the petitioner had attended the said meeting but had not asked for the hearing before the Presiding Officer. The videography of the entire proceedings was done from which also it could be verified that the petitioner had not made any request or asked for the permission to speak in the said meeting. On the contrary, the petitioner had attended the meeting and participated in the proceedings, and therefore, it could not be said that the petitioner was denied the opportunity to speak.
Page 2 of 8 C/SCA/8204/2018 ORDER4. The respondent No.3 Taluka Development Officer has also filed affidavit-in-reply in support of the affidavit filed by the Talit-cum-Mantri. The respondent No.5 was subsequently impleaded as part respondent pursuant to the order passed in Civil Application No.1/2018.
5. Learned Advocate Mr.Mangukiya for the petitioner, relying upon the decision of this Court in case of Geetaben Bharatbhai Patel Vs. state of Gujarat and Ors., reported in 2006(1) GLH 91 vehemently submitted that the requirement of Section 56(3) of the said Act is mandatory in nature and not directory, and if the same was not followed, all the consequential steps from the stage of voting of no confidence motion to the adoption of the same would be non est and ineffective. According to Mr.Mangukiya, in the instant case the petitioner was not offered the opportunity to speak, and therefore, there was violation of the said mandatory provisions of Section 56(3) of the said Act. Mr.Mangukiya has also relied upon the other decisions of this Court in case of Kailasba Jilubha Jadeja Vs. State of Gujarat & Ors., reported in 2015(2) GLR 1168, in case of Laljibhai Dhanjibhai Unagar Vs. Khambha taluka Panchayat, Khambha and Anr., reported in 2015(3) GLR 2424, and in case of Suvarnaben Chetanbhai Raval Vs. State of Gujarat & Ors., reported in 2014(5) GLR 4277 in support of his submissions that giving the Sarpanch an opportunity of addressing the house was a must Page 3 of 8 C/SCA/8204/2018 ORDER before passing the no confidence motion against him.
6. Per contra learned Advocate Mr.Jay Thakkar for the respondent No.5 submitted that as transpiring from the minutes of the meeting, the petitioner himself had participated in the said proceedings and had not raised any objection against any of the proceedings. All the members present in the meeting were explained and made aware about the provisions of the Act and Rules, however, the petitioner had chosen not to exercise his right to speak, and therefore, it could not be said that he was denied the right to speak or that there was violation of Section 56(3) of the said Act. He has also relied upon the unreported decision of this Court in case Taraben Rameshbhai Vasava Vs. State of Gujarat and Ors., in Special Civil Application No.16981 of 2017, which has been confirmed by the Division Bench in Letters Patel Appeal No.145 of 2018.
7. Learned Advocate Mr.Girish Ramakrishnan for the respondent Nos.3 and 4 also supported the submissions made by Mr.Jay Thakkar that the petitioner had participated in the proceedings and had also put his signature without raising any objection.
8. Before dealing with the rival contentions raised by the learned Advocates for the parties, it Page 4 of 8 C/SCA/8204/2018 ORDER 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 noconfidence. (1) xxx (2) xxx (3) Notwithstanding anything contained in this Act or the rules made thereunder a Sarpanch or, as the case may be, an Upa Sarpanch, 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 Page 5 of 8 C/SCA/8204/2018 ORDER 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 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 Page 6 of 8 C/SCA/8204/2018 ORDER 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 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 Page 7 of 8 C/SCA/8204/2018 ORDER 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.
12. In that view of the matter, the petition being devoid of merits is dismissed.
(BELA M. TRIVEDI, J) V.V.P. PODUVAL Page 8 of 8