Gujarat High Court
Jotiben Laxmanji Thakor vs State Of Gujarat on 19 October, 2019
Equivalent citations: AIRONLINE 2019 GUJ 545
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
C/SCA/16262/2019 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16262 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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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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JOTIBEN LAXMANJI THAKOR
Versus
STATE OF GUJARAT
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Appearance:
MR CP CHAMPANERI(5920) for the Petitioner(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2,3
MR KM ANTANI, AGP(5) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 19/10/2019
ORAL JUDGMENT
1. Rule. Learned Assistant Government Pleader Mr.Antani waives service of notice of rule for respondent no.1. Learned Advocate Page 1 of 29 Downloaded on : Sun Oct 20 04:08:03 IST 2019 C/SCA/16262/2019 JUDGMENT Mr.Munshaw waives service of notice of rule for respondent nos.2 and 3.
2. In this petition which is filed under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:
"7(A) That this Hon'ble Court may kindly be pleased to admit and allow the present petition.
(B) That this Hon'ble Court may kindly be pleased to issue writ of mandamus or any other writ, order or direction in the nature of same and be pleased to direct the respondent no.1,2 and 3 to call for and convene a Special General Meeting for passing the motion of no confidence as requisitioned by the petitioner and other two members on 13.08.2019 within a period of 7 days. (C) That this Hon'ble Court will be pleased to pass such other and further order as the nature and circumstances of the case may require."
3. Learned advocate Mr.Champaneri appearing for the petitioner submitted that the general election of Patan District Panchayat was held in December, 2015. The total strength of the members of the Patan District Panchayat is 32 out of which 22 members are elected on the symbol of Indian National Congress party and 10 members are elected on the symbol of Bharatiya Janta Party.
He further submits that in every district panchayat under Section 161 of the Gujarat Panchayats Act (`the Act' for short), the Page 2 of 29 Downloaded on : Sun Oct 20 04:08:03 IST 2019 C/SCA/16262/2019 JUDGMENT District Development Officer is ex-officio
Secretary and other officers and servants shall discharge their functions and duties as may be conferred by the District Panchayat qua the post of President and Vice-President of the District Panchayat. The motion of no-confidence can be moved against the President and Vice-President after following procedure prescribed under the Act.
3.1 At this stage, it is submitted that as per the provisions contained in Section 145 of the Act, the District Panchayat shall constitute such other committees to discharge the functions which can be conferred upon them. One of such committee is Public Works Committee. It is submitted that procedure in respect of the meetings of such committees is the same as provided for the meetings of the District Panchayat. The Rules provide for passing of no confidence motion against the Chairman of a Committee of the District Panchayat. It is submitted that from the scheme of the Act and Rules framed thereunder it can be said that the motion of no confidence can be moved against the Chairman of a Committee of the District Panchayat.
3.2 Learned advocate Mr.Champaneri Page 3 of 29 Downloaded on : Sun Oct 20 04:08:03 IST 2019 C/SCA/16262/2019 JUDGMENT thereafter would submit that Public Works
Committee of the District Panchayat constitutes of five members, out of which three members including the petitioner had moved a requisition of passing of no confidence against the Chairman of the said Committee. Such request was moved on 13.8.2019. On the receipt of aforesaid requisition, the Secretary of the said Committee issued a communication to the Chairman of the said Committee and asked him to call Special General Meeting within a period of 15 days as per the provisions contained in Rule 20 of the Panchayat (Procedure) rules, 1997 (hereinafter referred to as `the Rules' for short).
3.3 At this stage, learned advocate for the petitioner has pointed out from the record that during this term, the motion of no confidence was moved against the chairman of another committee and such chairman of that committee had called for the meeting within a period of 15 days. However, in the present case, the Chairman of the respondent no.3 committee did not issue an agenda for calling a Special General Meeting within a period of 15 days. Therefore, the concerned Secretary informed the petitioner on 31.8.2019 pointing out that the Chairman of the Public Works Committee is not calling and convening a Special General Meeting on the requisition of the Page 4 of 29 Downloaded on : Sun Oct 20 04:08:03 IST 2019 C/SCA/16262/2019 JUDGMENT motion of no confidence and therefore no further proceedings can be initiated at his end. Learned advocate Mr.Champaneri would thereafter submit that the Additional Development Commissioner is the competent authority who can call the meeting for the purpose of no confidence. Learned advocate, at this stage, has pointed out from the record that in the case of Chanasma taluka panchayat of Patan district in a similar type of situation, the motion of no confidence was moved against the Chairman of Social Justice Committee and the Chairman did not issue the agenda and thereafter the concerned Secretary of the Committee as well as Taluka Development Officer also did not issue the agenda for calling and convening the meeting. At this stage, higher authority in relation to the Taluka Panchayat namely District Development Officer issued the agenda for calling and convening the meeting and if the same analogy is considered, then higher authority in the case of District Panchayat is Additional Development Commissioner. During the course of hearing, it is pointed out by the learned advocates appearing for the parties that report is submitted to the Additional Development Commissioner. However, for one reason or the other, till date, he has not taken any decision. It is therefore urged by learned advocate for the petitioner that this petition be allowed.
Page 5 of 29 Downloaded on : Sun Oct 20 04:08:03 IST 2019C/SCA/16262/2019 JUDGMENT 3.4 Learned advocate for the petitioner has
referred to the provisions contained in Section 84 of the Act which provides for motion of no confidence against President or Vice-President. He, thereafter, referred to the provisions contained in Section 146 of the Act which provides for removal of Chairman of Education Committee. At this stage, learned advocate for the petitioner has fairly submitted that there is no specific provision for removal of Chairman of Public Works Committee in the Act. However, learned advocate has placed reliance upon the decision rendered by this Court in the case of Narmadaben V Parmar V/s Taluka Development Officer, Kheralu reported in 1998(1) GLH 275. After relying upon the said decision, it is submitted that this Court has held that the body which has power to elect by simple majority has implied power to remove by simple majority. In the said case, the issue was with regard to removal of Chairman of Social Justice Committee of Taluka Panchayat and after considering the various provisions of the Act as well as the decisions cited before this Court, it was held that the meeting is to be called by the Chairman of the Committee with the stipulated period.
3.5 Learned advocate Mr.Champaneri has also Page 6 of 29 Downloaded on : Sun Oct 20 04:08:03 IST 2019 C/SCA/16262/2019 JUDGMENT placed reliance upon the decision rendered by
this Court in the case of Jagrutiben Babubhai Shah V/s State of Gujarat, Thr.Secretary reported in 2005(3) GLR 2621. Learned advocate Mr.Champaneri further placed reliance upon the notification dated 26.7.1994 issued by the government of Gujarat while exercising the powers under Section 2(4) of the Act by which the powers are delegated to the concerned authorities for the purpose of various provisions of the Act. After referring to the said notification, it is submitted that for the purpose of the provisions contained in Section 146(4)(b) as well as Section 89(1), the Development Commissioner is the competent authority. Even Section 32(2) of the Act which provides for disability from continuing as member, the Additional Development Commissioner is the competent authority for District Panchayat. It is, therefore, urged that appropriate direction be issued to the competent authority for convening the meeting for considering the motion of no confidence.
4. On the other hand, learned advocate Mr.Munshaw appearing for the respondent no.3 has opposed this petition and submitted that there is no specific provision in the Act for removal of chairman of Public Works Committee or for moving no confidence motion against the chairman of Page 7 of 29 Downloaded on : Sun Oct 20 04:08:03 IST 2019 C/SCA/16262/2019 JUDGMENT Public Works Committee. Thus, in absence of any provision contained in the Act, no direction can be issued to the respondent authority for convening the meeting. It is, therefore, urged that this petition be dismissed. However, learned advocate Mr.Munshaw has fairly submitted that as there is no provision in the Act, the issue is referred to the Development Commissioner and the Development Commissioner has till date not taken any decision and therefore this petition may not be entertained.
4.1 Learned Additional Government Pleader, after taking instruction, submitted that the Development Commissioner has fixed the hearing of the application on 9.10.2019 and now it is kept on 4.11.2019.
5. Having heard the learned advocates appearing for the parties and having gone through the material placed on record, the issue which is required to be considered in the present petition is whether, in absence of any specific provision contained in the Act for removal of chairman of Public Works Committee or for moving of no confidence motion against the Chairman of such committee, any direction can be issued for convening the meeting or not? Further, who is the competent authority to call a meeting after the Page 8 of 29 Downloaded on : Sun Oct 20 04:08:03 IST 2019 C/SCA/16262/2019 JUDGMENT receipt of the requisition by the members of the said committee.
6. For deciding the aforesaid issues, relevant provisions of the Act and the Rules are required to be referred to.
6.1. Sections 84 and 146 of the Act read as under:
"Section 84 : Motion of no confidence : (1) Any member who intends to move a motion of no confidence against the President or vice- President may give notice thereof in the prescribed form to the panchayat. If the notice is supported by such number of members as may be prescribed, the motion may be moved.
(2) If the motion is carried by a majority of not less than two thirds of the total number of the then members of the panchayat, the President or Vice-President, as the case may be, shall case to hold office, after a period of three days from the date on which the motion was carried unless he has resigned earlier; and thereupon the office held by such President or Vice-President shall be deemed to be vacant.
(3) Notwithstanding anything contained in this Act or the rules made thereunder, a President or Vice-President 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).Page 9 of 29 Downloaded on : Sun Oct 20 04:08:03 IST 2019
C/SCA/16262/2019 JUDGMENT (4)(a) Notwithstanding anything contained in section 144, a meeting of the panchayat for dealing with a motion of no confidence under this section shall be called within a period of fifteen days from the date on which a notice of such motion is received by the panchayat.
(b) If the President of the panchayat fails to call such meeting, the Secretary to the panchayat shall make a report thereof to the competent authority and thereupon the competent authority shall call a meeting of the panchayat within a period of fifteen days from the date of the receipt of the report.
Section 146 : Removal of Chairman of Education Committee : (1) Any member of the Education Committee who intends to move a motion of no confidence against the Chairman of Education Committee, may give a notice thereof in the prescribed form to the Committee.
(2) If the motion is carried by a majority of not less than two third of the total number of the than members of the committee, the Chairman shall cease to hold office, after a period of three days from the date on which the motion is carried unless he has resigned earlier and thereupon the office held by such Chairman shall be deemed to be vacant.
(3) Notwithstanding anything contained in this Act or the rules made thereunder, a Chairman 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).
(4)(a) A meeting of a Committee for dealing Page 10 of 29 Downloaded on : Sun Oct 20 04:08:03 IST 2019 C/SCA/16262/2019 JUDGMENT
with a motion of no confidence under this section shall be called within a period of seven days from the date on which a notice of such motion is received by the committee.
(b) If the Chairman of the committee fails to call meeting, the Secretary of the committee shall make a report thereof to the competent authority and there upon the competent authority shall call a meeting of the committee within a period of seven days from the date of the receipt of the report.
6.2. Rules 20 and 45 of the Rules read as under :
"Rule 20 : Notice of no confidence motion :
(1) Any member of a panchayat who desires to move a motion of no confidence against the Sarpanch / President or Up-Sarpanch / Vice-
President of the panchayat, shall give notice thereof to the Secretary in Form-A. Where the motion of no confidence is to be moved against the Sarpanch / President as well as Up-Sarpanch / Vice-President, two separate notice shall be given. If the notion is given jointly by more than one member, the motion may be moved by any of the members who have assigned the notice. Every such notice shall be supported by atleast one-half of the total number of members of the panchayat.
(2) The member giving any notice under sub- rule (1) shall forward therewith three additional copies thereof to the Secretary who shall deliver one copy to the Sarpanch / President, one copy to the Up-Sarpanch / Vice-President and one copy.
(i) to the Taluka Development Officer
where the motion relates to the
Sarpanch or Up-Sarpanch, or
(ii) to the District Development
Page 11 of 29
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C/SCA/16262/2019 JUDGMENT
Officerwhere the motion relates to the President or Vice-President of a Taluka Panchayat, or
(iii) to the Development Commissioner where the motion relates to the President or Vice-President of a District Panchayat.
Explanation - For the purposes of this rule, if the total number of members of a panchayat is odd, then, in calculating the number for the purpose of this rule, a fraction shall be counted as one, that is to say, if the number of members if thirty one, the member required for supporting the notice so that a motion may be moved shall be sixteen and so on.
Rule 45 : Rules of procedure - The rules of procedure for the meeting of the panchayat shall generally apply mutatis mutandis to the meeting of committees.
7. From the provisions contained in Section 84 of the Act, it is revealed that the motion of no confidence can be moved against the President or Vice-President and the procedure which is required to be followed for calling such meeting is prescribed in sub-section 4 of Section 84 of the Act. The meeting shall be called within a period of 15 days from the date on which notice of such motion is received by the Panchayat. However, if the President of the Panchayat fails to call such meeting, the Secretary of the Panchayat shall make a report thereof to the competent authority and thereupon the competent authority shall call a meeting of the panchayat Page 12 of 29 Downloaded on : Sun Oct 20 04:08:03 IST 2019 C/SCA/16262/2019 JUDGMENT within a period of 15 days from the date of receipt of the report.
8. Almost similar provision is made in Section 146 of the Act which provides for removal of chairman of Education Committee. However, as per Section 146(4) of the Act, meeting of a Committee for dealing with a motion of no confidence shall be called within a period of 7 days and if the chairman of the committee fails to call the meeting, on the receipt of the report from the Secretary, competent authority shall call a meeting within a period of 7 days from the date of receipt of the report.
9. It is true that there is no specific provision contained in the Act for moving no confidence motion against the Chairman of Public Works Committee. However, the decision rendered by this Court in the case of Narmadaben Parmar (supra) would render assistance to the petitioner in support of his contention. In the said case, this Court was considering the issue whether the Chairman of Social Justice Committee of the Taluka Panchayat elected by the members of the said Committee from amongst themselves can be removed by its members by passing motion of no confidence. This Court has, after considering the various provisions of the Act, held in paragraphs Page 13 of 29 Downloaded on : Sun Oct 20 04:08:03 IST 2019 C/SCA/16262/2019 JUDGMENT 8,10 and 11 as under:
"8. It is also true that there are specific provisions for removal of the Sarpanch/Upsarpanch of the Gram Panchayat, President/Vice-President of taluka Panchayat under Sees. 56, 70 and 84 respectively but there is no such provision for Chairman of any Committee. But Mr. Jani has rightly pointed out that in all those provisions special provision is made requiring passing of no-confidence motion by 2/3rd majority and not by a simple majority. It is a basic tenet of democracy that an elected body has the power to elect its office-bearers and if the body is not held to have power to appoint or remove its office-bearers, the body will never be able to enforce accountability or responsibility of its office-bearers or control the action of its office bearers. For instance, if one looks to the constitution of the Social Justice Committee, it comprises of five members and if, as in the instant case, out of five members four members have no- confidence in the Chairman and if this situation is allowed to continue till expiry of the term of the Committee (which event will take place in July 2000. in the instant case), there will be constant dead-lock and the Committee will not be able to function effectively and carry out the duties assigned to it. It must, therefore, be held that the body which has power to elect its office-
bearers by a simple majority has also the inherent or implied power to remove them by passing the motion of no-confidence by a simple majority, unless there are special provisions prescribing a special procedure or special requirement, such as the requirement for 2/3rd majority to remove the President/Vice-President of the Taluka Panchayat/District Panchayat.
Page 14 of 29 Downloaded on : Sun Oct 20 04:08:03 IST 2019C/SCA/16262/2019 JUDGMENT
10. Even the provisions of section 16 of the General Clauses Act be relied upon for the purpose of buttressing the aforesaid conclusion that the power to appoint includes the power to remove. The submission of Mr. Mehta that the provisions of section 16 of the General Clauses Act cannot be invoked in the instant case because herein the petitioner was not appointed but elected, has no substance. Appointment on a post or office can be made by various modes. Election is only one of the modes of appointment. Therefore, the provisions of section 16 can certainly be applied. There is one important point which is required to be noted here. That is in respect of the power conferred upon the people to elect their representatives to the legislature or the general body of the Panchayat, Municipality, etc. which is not to be confused with the power to appoint. The right to elect one's representative to a seat in the Legislature does not include the right to recall because the Constitution or the relevant statute provides for specific term for which the legislators/members/councillors are elected. As Edmand Burke has said, people's representatives in the Legislature are not their mere agents, but they are their delegates. The election to the seats in legislative bodies, therefore, stands on a different footing from the appointment of the office-bearers who are only agents of the particular body which elects them. Hence, the power to appoint, whether by election or otherwise, also includes the power to remove the appointees unless there are specific provisions to the contrary or unless the appointment for a specific term. A Division Bench of this Court in the case of Chimanbhai R. Patel (supra) has also held that even though the provisions of Gujarat Municipalities Act do not contain any specific provision for the removal of the Page 15 of 29 Downloaded on : Sun Oct 20 04:08:03 IST 2019 C/SCA/16262/2019 JUDGMENT Chairman of the Committee, the general rule that the appointing authority, namely, the Municipality can remove the Chairman of the Committee, if he abuses his power as the Chairman thereof, must apply. It is also held that the office of the Chairman of a Committee is distinct and separate from the office of a Municipal councillor. In the instant case also the post of Chairman of the Social Justice Committee is separate and distinct from the membership of the Committee and the membership of the Panchayat and therefore, the vote of no-confidence will obviously be concerned with the petitioner's holding the post of Chairman and not with the membership of the Committee or of the Taluka Panchayat.
11. As far as reliance placed by Mr. Mehta on the decision of the Bombay High Court in the case of Hindurao (supra) is concerned, it is true that prima facie the observations made in paragraphs 9, 10 and 18 of the said judgment support the case of the petitioner. However, it is required to be noted that the Division Bench of the Bombay High Court has noted that the decision was being rendered in respect of co-operative societies, it is also observed therein that the co-operative movement is a separate movement which need not be connected with many politics, it is also required to be noted here that the provision for Disqualification of Members of Local Authorities Act does not apply to the co-operative societies but it is applicable to the Local self-Government bodies such as Panchayats and Municipalities. Hence the underlying premise of the decision of the Bombay High Court that party politics has no place in co-operative societies is not applicable to Panchayat. Otherwise also I am not inclined to agree with the view taken by the Bombay High Court as I am bound by the Page 16 of 29 Downloaded on : Sun Oct 20 04:08:03 IST 2019 C/SCA/16262/2019 JUDGMENT decision of the Division Bench in the case of Chimanbhai Paiel (supra) and 1 also share the view taken by the Punjab & Haryana High Court in the case of Haji Anwar Ahmed Kahn v. The Punjab Wakf Board and Ors. and by a learned single Judge of the Andhra Pradesh High Court in the case of N.Venkataratnam naidu v. The District Collector, Nellore and Ors. and a Division Bench of the Delhi High Court in the case of Bar Council of Delhi v. The Bar Council of India where the view taken is that the office-bearers of the co-operative societies or Panchayat are elected by and responsible to the body which elects them by simple majority and, therefore, the necessary conclusion would be that they can be removed at the pleasure of the body so electing and that if this view is not taken it will result in having irrevocable office bearers and the office-bearers will not be responsible to the body electing them. In this connection it is required to be noted that even while holding that where there is no specific power given to the members of a Committee or Board of Directors to remove its office-bearers by passing a mere vote of no-confidence, the Division Bench of the Bombay High Court has made the following observations in Para 19 of the judgment:
However, before parting with this case, we might observe that this is a case wherein the meeting for passing the vote of no- confidence was already held and the resolution is also passed by the majority of the members of the Board. Thus, the petitioners very well knew that they no longer enjoy the confidence of the Board. In these circumstances, the petitioners should well consider whether they should resign from the posts. Moreso, in view of the well established conventions of public life as well as of the co-operative movement which is based on mutual trust.Page 17 of 29 Downloaded on : Sun Oct 20 04:08:03 IST 2019
C/SCA/16262/2019 JUDGMENT (emphasis supplied) It is thus clear that the Bombay High Court has also acknowledged that reading implied power of the members of the Board of Directors to remove the office-bearers by passing a vote of no-confidence would certainly be consistent with the well established convention of public life. When two interpretations of statutory provisions are possible, one which accords with a well established convention of public life and the other which militates against the well established convention of public life, the Court must instinctively go for the former."
10. In the case of Jagrutiben Babubhai Shah (supra), this Court has observed and held in paragraphs 12,13,16 and 17 as under:
"12. Clause (a) of Sub-section (4) of section 84 read with clause (b) of Sub-section (4) of section 84 casts a duty on the President of the Panchayat to call a meeting within a period of 15 days from the date on which the notice of motion of no confidence is received by the Panchayat. If the President fails in his duty in this regard, the Secretary to the Panchayat is required to make a report to the competent authority and the competent authority thereupon is required to call a meeting of the Panchayat within a period of 15 days from the date of receipt of the report. Rule 20 of the Procedure Rules, provides for the modality of holding the meeting, but does not provide in any manner about the time limit within which such meeting is to be called. Does that mean that the conjoint reading of section 84 of the Act with Rule 20 of the Procedure Rules shows that the President is required to call a Page 18 of 29 Downloaded on : Sun Oct 20 04:08:03 IST 2019 C/SCA/16262/2019 JUDGMENT meeting within a period of 15 days and can hold such a meeting at any point of time thereafter ? It is true that in Sub-section (1) of section 77 of the said Act, the Legislature has provided that on the constitution of the District Panchayat or on its reconstitution under section 13 or under any other provisions of the Act, there shall be called the first meeting for the election of its President and its Vice-President from amongst its elected members. Whereas under
Sub-section (4) of section 77, the Legislature has provided that the meeting shall be held on such day within four weeks from the date on which the names of members elected at the General election are published under section 15 as may be fixed by the competent authority. In section 77 of the said Act, therefore, apparently, the term Scall has been used in juxtaposition to term Shold the meeting and both terms have been assigned different meanings by the Legislature. Position of section 84 of the said Act read with Rule 20 of the Procedure Rules is somewhat different. Under the provisions of Sub-section (4) of section 84 of the said Act, the President of the Panchayat is required to call a meeting within fifteen days from the date of receipt of notice of no-confidence motion by the Panchayat. If he fails in discharge of his duties, upon a report to be made by the Secretary, the competent authority is required to call such a meeting within a period of 15 days from the date of receipt of such a report. One may not lose sight of the fact that the meeting which the President is required to call is for discussing the no confidence motion against the President or the Vice-President. Thus the President has to choose the date of the meeting of the Panchayat to consider a no-confidence motion against himself. Would it be correct interpretation of the said provisions Page 19 of 29 Downloaded on : Sun Oct 20 04:08:03 IST 2019 C/SCA/16262/2019 JUDGMENT contained in section 84 to accept that calling a meeting within 15 days by issuing a notice of requisition would be sufficient compliance of the requirement of law and that the actual meeting may be held at any distant point of time ? Accepting any such interpretation would lead to a situation where the President of the Panchayat may issue a notice calling the meeting within the requisite period of 15 days, but may actually convene the meeting at a distant point of time and thereby argue that once he has discharged his duty enjoined upon him by the Legislature, even the Competent Authority would be divested of its power to convene a meeting at an earlier point of time. Even to move a notice of no-confidence motion, one- half number of members of the Panchayat need to sign the requisition before the same can be placed before the Panchayat. Thus when, prima facie, at least half of the number of members of the Panchayat lose confidence in the President or the Vice-President, such a motion of no-confidence is required to be considered by holding a meeting of the Panchayat. Such requisition cannot be delayed indefinitely blocking the democratic process of putting to vote the no-confidence of motion. Under Rule 20 of the Procedure Rules, as noted earlier, no time limit has been indicated for holding of the meeting to consider the no-confidence motion. The intention of the Legislature, therefore, as emanating from the provisions of Sub-section (4) of section 84 is to require the President of the Panchayat to actually hold the meeting within a period of 15 days from the date of receipt of such a notice by the panchayat. If he fails in discharge of his duties, the Secretary of the Panchayat has to make a report thereof to the competent authority and the competent authority upon receipt of such a report has to call the meeting of the Panchayat within a period of 15 days of the Page 20 of 29 Downloaded on : Sun Oct 20 04:08:03 IST 2019 C/SCA/16262/2019 JUDGMENT receipt of the report.
13. One may also notice that section 84(4)(a) provides that notwithstanding anything contained in section 144, meeting of the Panchayat dealing with motion of no confidence shall be called within 15 days from receipt of such motion by the Panchayat. Section 144 of the Act provides that the meeting of a district panchayat shall be held normally every three months. President of the Panchayat however may for specified reasons upon request of not less than one third of the members call the meeting at any other time. Thus under section 84(4)(a) of the said Act special provisions are made for meetings of the Panchayat to deal with no confidence motion. The intention of the Legislature could not have been to provide for calling of the meeting by issuance of notice thereof immediately but to permit actual holding thereof at any time thereafter without providing of any outer limit."
16. Keeping the above judicial pronouncements in mind and referring to the statutory position in the present case, it is not possible to give a strict and literal meaning to the provisions of section 84(4) of the Act and in particular the term Scall used in the said Sub-section for the purpose of calling the meeting of no confidence motion. The Legislative intent has to be gathered from the attending provisions and the entire scheme of the Act with special focus on the provisions contained for convening a meeting for considering a no confidence motion when called upon to do by at least one-half of the members of the Panchayat. In that sense, as noted earlier, strict and rigid interpretation of the term Scall would lead to a situation where the President of the Page 21 of 29 Downloaded on : Sun Oct 20 04:08:03 IST 2019 C/SCA/16262/2019 JUDGMENT Panchayat against whom such a motion is sought to be moved may issue a notice calling such a meeting within the prescribed time of 15 days, but may fix the date of actual meeting after a distant point of time. Such a situation is neither envisaged by the Legislature nor would be conducive of clean administration of panchayat through democratic process. Such a mischief cannot be permitted by adopting strict interpretation and, in my mind, there is no doubt that the Legislature intended that under Sub-section (4) of section 84 of the said Act what is required is that the President should call and hold the meeting within a period of 15 days from the date of receipt of notice thereof from the requisite number of members of the Panchayat.
17. This brings me to the second aspect of the matter, namely, whether the order passed by the State Government on 20th April 2005 was valid and legal. The entire situation may be viewed in the background of the facts emerging in the present case. The District Development Officer noting that the petitioner had not scheduled the meeting of the Panchayat within a period of 15 days and had actually decided to hold the meeting more than two months from the date of receipt of the notice of no-confidence motion, sought guidance from the State Government regarding the correction position of law since he found that the meeting should have been actually held within a period of fifteen days. The State Government in purported exercise of power under section 259 of the said Act directed the District Development Officer to convene a meeting on or before 4th May 2005. In the conclusion that I have reached regarding the interpretation of Sub-section (4) of section 84 of the said Act, it was the duty and responsibility of the District Page 22 of 29 Downloaded on : Sun Oct 20 04:08:03 IST 2019 C/SCA/16262/2019 JUDGMENT Development Officer to make a report and to ensure holding of a meeting within 15 days thereof. The meeting was actually convened by the District Development Officer, of course, under the guidance or directive of the State Government. In strict sense, perhaps, it can be argued that the Competent Authority himself should have taken a decision and not upon directives by the State Government. The fact that under section 259 of the said Act, the Government has the power to call for and examine legality or propriety of any order passed by any officer of the Panchayat and to revise and modify the order is not in doubt. The question, therefore is, should the proceedings of the meeting which were actually held on 3 May 2005 be annulled on rd account of such a technicality? As noted earlier, out of 29 members of the Panchayat, 21 members remained present and voted in favour of the no-confidence motion. In exercise of power under Article 226 of the Constitution of India, I do not think that this is a fit case in which discretionary power of this Court should be exercised to strike down the entire proceedings and to order reconvening of the meeting."
11. At this stage, the provision contained in Rule 20 is also required to be kept in view. Rule 20 of the Rules provides for the procedure which is required to be followed at the time of moving no confidence motion against Sarpanch/President or Up-sarpanch/Vice-president where as Rule 45 provides that rules of procedure for the meeting of the panchayat shall generally apply mutatis mutandis to the meeting of the committees. Thus, in view of the provision Page 23 of 29 Downloaded on : Sun Oct 20 04:08:03 IST 2019 C/SCA/16262/2019 JUDGMENT contained in Rule 45, the procedure for calling the meeting of no confidence would be applicable for calling the meeting for motion of no confidence with regard to the various committees.
12. From the provisions contained in Sections 56, 70, 84 and 146 of the Act, it can be said that in all those provisions, special provision is made regarding passing of no confidence motion by 2/3rd majority and not by simple majority. It is the basic tenet of democracy that an elected body has power to elect its office bearers and if the body is not held to have power to appoint or remove its office bearers, the body will never be able to enforce accountability or responsibility of its office bearers or control the action of its office bearers. In the present case, the Public Works Committee comprises of five members. Out of five members, three members have no confidence in the chairman and if this situation is allowed to continue till expiry of the term of the committee, there will be constant deadlock and the committee will not be able to function effectively and carry out the duties assigned to it. Thus, it can be said that the body which has power to elect its office bearers by simple majority has also the inherent or implied power to remove them by passing motion of no confidence Page 24 of 29 Downloaded on : Sun Oct 20 04:08:03 IST 2019 C/SCA/16262/2019 JUDGMENT by simple majority, unless there are special provisions prescribing a special procedure or special requirement, such as the requirement of 2/3rd majority to remove the President/Vice- President of Taluka Panchayat/District Panchaya. It is now well settled that power to appoint includes the power to remove.
13. Keeping in view the aforesaid provisions contained in the Act and Rules as well as the decisions rendered by this Court, if the facts of the present case as discussed herinabove are carefully examined, it is revealed that three members out of five members of Public Works Committee moved a requisition for passing of no confidence motion against the Chairman of the said committee. The Chairman of the said committee has not called for the Special General Meeting within a period of 15 days as per Rule 20 of the Rules and therefore Secretary of the said Committee has to submit a report to the competent authority for calling the meeting for the purpose of passing no confidence motion within a period of 15 days. This Court is of the view that the motion of no confidence can be moved against the Chairman of even Public Works Committee in view of the aforesaid provisions of the Act and the decision rendered by this Court in the case of Narmadaben Parmar (supra).
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14. Now the next question would be who is the competent authority for calling the meeting of the Public Works Committee of the District Panchayat. For deciding the said issue, the notification dated 26.7.1994 issued by the Government of Gujarat while exercising the powers under Section 2(4) of the Act is required to be considered. Along with the said notification, schedule is given. Relevant provisions of the said schedule are as under:
"
SCHEDULE Sr. Section Nature of the To whom the powers No. of the power delegated Gujarat Panchaya ts Act, 1993
5. 32(2) Disability (i) Taluka from Development officer continuing as for Village a Member Panchayat.
(ii) District Development Officer for Taluka Panchayat.
(iii) Additional Development Commissioner for District Panchayat.
24. 84(4)(b) Submission of Development report when Commissioner the President of a District Panchayat fails to call Page 26 of 29 Downloaded on : Sun Oct 20 04:08:03 IST 2019 C/SCA/16262/2019 JUDGMENT the meeting for motion of no confidence.
28. 89(1) (1) Notice Development regarding Commissioner vacancies of District Panchayat (2) Convening meeting for Development election of Commissioner President or Vice-
President of
a District
Panchayat
36. 146(4) To receive Development
(b) report and Commissioner
calling of a
meeting for
no confidence
motion
against the
Chairman of
Education
Committee
15. From the aforesaid provision of the
schedule of the notification, it can be said that the competent authority for different provisions of the Act for District Panchayat is the Development Commissioner. Thus, if the same analogy is applied in the present case, the competent authority to receive report and calling of a meeting of no confidence motion against the Chairman of the Public Works Committee would be the Development Commissioner.
Page 27 of 29 Downloaded on : Sun Oct 20 04:08:03 IST 2019C/SCA/16262/2019 JUDGMENT 16. In the present case, as discussed
hereinabove, the President of the Public Works Committee has not called the meeting and therefore the Secretary of the respondent no.3 committee has to inform to the Development Commissioner for calling the meeting. After receipt of the report, the Development Commissioner has to call the meeting within a period of 15 days.
17. At this stage, it is required to be noted that the petitioner has specifically pointed out in the petition that so far as Chanasma Taluka Panchayt of Patan district is concerned, motion of no confidence was moved against the chairman of Social Justice Committee. The Chairman of the said Committee did not issue agenda and therefore the Secretary of the Committee informed the Taluka Development Officer. Ultimately, on the receipt of the report, the District Development Officer issued the agenda for calling and convening the meeting for considering the motion of no confidence against the Chairman of the Social Justice Committee. Thus, in the case of Taluka Panchayat, the District Development Officer is the competent authority for calling and convening the meeting. Thus, in the district Patan itself, when such Page 28 of 29 Downloaded on : Sun Oct 20 04:08:03 IST 2019 C/SCA/16262/2019 JUDGMENT procedure is followed by District Development Officer of calling the meeting for considering the no confidence motion against Chairman of Social Justice Committee, there is no reason for respondent Additional Development Commissioner who is the competent authority qua District Panchayat in not calling the meeting for considering the motion of no confidence against the chairman of Public Works Committee of District Panchayat, Patan.
18. In view of the aforesaid discussion, this petition is allowed. Respondent no.3- Secretary Public Works Committee of District Patan is hereby directed to send the report to the respondent no.1-Additional Development Commissioner within a period of three days from the date of receipt of this order, if such report is till date not submitted to the Additional Development Commissioner. On receipt of the report from the respondent no.3, the respondent no.1 shall call and convene the meeting within a period of 15 days thereafter for considering the motion of no confidence moved against the Chairman of the Public Works Committee. Rule is made absolute. Direct service is permitted.
(VIPUL M. PANCHOLI, J) SRILATHA Page 29 of 29 Downloaded on : Sun Oct 20 04:08:03 IST 2019