Laljibhai Dhanjibhai Unagar vs Khambha Taluka Panchayat on 2 March, 2015

[Cites 5, Cited by 3]

Gujarat High Court

Laljibhai Dhanjibhai Unagar vs Khambha Taluka Panchayat on 2 March, 2015

1. By way of this petition, the petitioner has, interalia, prayed that the Resolution No.49, passed on 22.04.2013, by respondent No.1Taluka Development Officer, whereby a No Confidence Motion has been passed against the petitioner, be quashed and set aside.

2. The brief facts of the case are as follows:

2.1 The petitioner was elected as a Member of the Khambha Taluka Panchayat in the elections held in the month of October, 2010, on the symbol of the Indian National Congress. Thereafter, an election was held on 12.11.2010, for the post of Vice President of the Khambha Taluka Panchayat and the petitioner was elected uncontested, to the said post. According to the petitioner, as he is affiliated to the party in opposition, other Members of the Khambha Gram Panchayat, who are affiliated to the Ruling Party, moved a motion of No Confidence against the petitioner on 07.03.2013. This No Confidence Motion was challenged by the petitioner by preferring a Page 2 of 15 C/SCA/8175/2013 JUDGMENT petition, being Special Civil Application No.2936 of 2013. This Court, after hearing the parties, allowed the petition and quashed and set aside the No Confidence Motion, keeping it open for the contesting respondents to move a No Confidence Motion afresh, if deemed fit. It is stated in the petition that out of sheer vengeance, another motion of No Confidence was submitted against the petitioner on 28.03.2013. A meeting to discuss the No Confidence Motion was held on 22.04.2013, as per the agenda of the same date.

The motion of No Confidence against the petitioner was passed in the said meeting by a majority of 10 members voting against the petitioner and two members in his favour. The proceedings have been recorded in Resolution No.49 dated 22.04.2013. Aggrieved thereby, the petitioner has approached this Court.

3. Mr.P.J. Kanabar, learned advocate for the petitioner, has submitted that it is a settled position of law, enunciated by this Court in Geetaben Bharatbhai Patel Vs. State of Gujarat and others, reported in 2006(1) GLH 91, that the provisions of Section 56(3) of the Gujarat Panchayats Act, 1993 Page 3 of 15 C/SCA/8175/2013 JUDGMENT ("the Act" for short) are mandatory in nature and not merely directory. As per the said provision of law, it was incumbent upon the respondents to grant an opportunity of hearing to the petitioner, when the No Confidence Motion against him was being discussed. However, a perusal of the impugned Resolution and proceedings dated 22.04.2013, makes it very clear that no opportunity of addressing the house was afforded to the petitioner. After the commencement of the proceedings, the No Confidence Motion was read out and put to vote, straightaway.

3.1 It is submitted that the provisions of Section 70(3) of the Act are pari materia with the provisions of Section 56(3) of the Act. The provisions of Section 56(3) relate to proceedings against the Sarpanch or Upasarpanch of a Gram Panchayat as the case may be, whereas the provisions of Section 70 deal with the President or VicePresident of the Taluka Panchayat. However, as the language of subsection (3) of Section 70 is identical to that of Section 56(3), the principles of law expounded by this Court in relation to Section 56(3) of the Act would be applicable in the Page 4 of 15 C/SCA/8175/2013 JUDGMENT present case, as well.

On the above grounds, it is submitted that the impugned Resolution and proceedings be quashed and set aside.

4. Mr.H.S. Munshaw, learned advocate for respondents Nos.1 and 2, has submitted that the petitioner was present in the meeting when the No Confidence Motion was passed against him, but he never asked for an opportunity to address the members present in the meeting. Nor did he make any attempt to address the house. In this view of the matter, the submission that the petitioner was not granted an opportunity of hearing, is baseless.

5. This Court has heard learned counsel for the respective parties, perused the averments made in the petition, contents of the impugned Resolution and proceedings dated 22.04.2013 and the other documents on record.

6. As the petitioner of the present petition is the Page 5 of 15 C/SCA/8175/2013 JUDGMENT VicePresident of the Taluka Panchayat, his case would be governed by Section 70 of the Act, which pertains to a motion of No Confidence against the President or VicePresident of a Taluka Panchayat. Subsection (3) of Section 70 of the Act reads thus:

"70.Motion of noconfidence. (1) *** *** *** (2) *** *** *** (3) Notwithstanding anything contained in this Act or the rules made thereunder a President or VicePresident 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)."

7. Insofar as the Sarpanch or Upasarpanch of a Gram Panchayat is concerned, the relevant provision regarding the passing of No Confidence Motion is sub section (3) of Section 56, which reads as below:

"56.Motion of noconfidence. (1) *** *** *** (2) *** *** *** (3) Notwithstanding anything contained in this Act or the rules made thereunder a Sarpanch or, Page 6 of 15 C/SCA/8175/2013 JUDGMENT as the case maybe, 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)."

8. From the above, it is clear that the language of subsection (3) of Section 70 is identical to that employed in subsection (3) of Section 56. As sub section (3) of Section 70 of the Act is pari materia with subsection (3) of Section 56, the same principles of law would govern both the provisions.

9. The position of law regarding the right of a Sarpanch or an Upasarpanch, as the case may be, against whom a No Confidence Motion is being discussed and put to vote, has been expounded by this Court in the judgment of Geetaben Bharatbhai Patel Vs. State of Gujarat and others (supra), in the following terms:

"14. Based on the above judicial pronouncements, it is necessary to examine whether the provisions of section 56(3) of the said Act which provide Page 7 of 15 C/SCA/8175/2013 JUDGMENT that a Sarpanch, or as the case may be, an Upa Sarpanch though shall not preside over a meeting in which a motion of no confidence is discussed against him, shall have a right to speak or otherwise to take part in the proceedings of the no confidence motion including right to vote; is a mandatory requirement of law or is merely directory so that the proceedings of no confidence motion would not vitiate even if the requirement is not strictly fulfilled.

15. From the above recording of the relevant provisions of the said Act and the said Rules and in particular rules 29 to 35, it can be seen that even in the capacity of a member of the Panchayat, Sarpanch against whom no confidence motion is being conducted would have a right to participate and to speak subject, of course, to the provisions contained in rules 29 to 35 of the said Rules. Section 56(3) of the said Act not only preserves this right, but highlights the aspect that a Sarpanch, or as the case may be, an UpSarpanch who is facing no confidence motion though shall not preside over such a meeting, but he shall have a right to speak or otherwise to take part in the proceedings of such a meeting as also shall have a right to vote. The words shall have a right to speak or otherwise to take part in the proceedings of such a meeting have been used by the Legislature advisedly and unless it is found from the attending provisions of the Page 8 of 15 C/SCA/8175/2013 JUDGMENT statute that the Legislature intended that such provision should not be mandatory, it is not possible to hold that the requirement is merely directory in nature. A right to address a meeting or otherwise to take part in the proceedings including to vote are statutory rights vested in the Sarpanch or UpaSarpanch who is facing a no confidence motion. A no confidence motion has to be tabled and debated before the same can be put to vote. A Sarpanch whose position and reputation are at stake definitely has a right to speak at such a meeting and when denied such a right, prejudice would be caused to him or her, as the case may be. In a democracy when an elected Sarpanch or, as the case may be, an UpSarpanch is being sought to be removed through a motion of no confidence and when the provisions of section 56(3) of the said Act specifically provide that a Sarpanch or, as the case may be, UpSarpanch who is facing such a no confidence motion shall have a right to speak, it is not possible to hold that such a requirement is merely directory in nature. The Sarpanch or, as the case may be, UpSarpanch, through his persuasive power or logical arguments may be able to prevail upon some of the members present at the meeting to change their mind and persuade them to oppose the no confidence motion. By denying the Sarpanch or, as the case may be, UpSarpanch an Page 9 of 15 C/SCA/8175/2013 JUDGMENT audience altogether, this statutory right is being violated. It is not possible to judge the prejudice that may be caused in an individual case by the denial of such a right. It is also not possible to interpret the provisions of section 56(3) of the said Act keeping in mind an individual fact situation in a given case. It is, therefore, not possible to accept the contention of the learned advocate Shri Raval for respondent No.6 that in the present case when as many as 14 out of 17 members voted in favour of no confidence motion, no prejudice was caused to the petitioner even if she was denied the right to speak at the meeting and that eventually what matters is the opinion of twothird members of the Panchayat that no confidence motion should be adopted. What would have been the position if the petitioner was permitted to speak and participate in the said meeting is not possible to predict. Before a no confidence motion could be put to vote, the petitioner had a statutory right to address the meeting. When such a mandatory requirement of law was not followed, all consequential steps of putting the motion to vote and counting of votes and adoption of resolution would automatically fail having no effect or validity.

16. In view of the conclusion that I have reached, namely, that the requirement of section 56(3) of the said Act is mandatory in nature and Page 10 of 15 C/SCA/8175/2013 JUDGMENT not merely directory, all consequential steps from the stage of voting of no confidence motion and its adoption by the meeting would be rendered non est and ineffective, since it is factually concluded in the earlier portion of the judgment that the petitioner was not given an opportunity to speak at the meeting or in any other manner to participate except to vote."

(emphasis supplied)

10. The above judgment was the subject matter of Letters Patent Appeal No.1677 of 2005, which was dismissed by the Division Bench vide order dated 08.12.2005. Therefore, the principles of law enunciated in the judgment of Geetaben Bharatbhai Patel Vs. State of Gujarat and others (supra) have attained finality.

11. As is clear from the perusal of the extracted portion of the above judgment, the provisions of Section 56(3) of the Act are not merely directory, but have been held to be mandatory in nature. As sub section (3) of Section 70 of the Act is pari materia with Section 56(3) and is couched in the same language, the above principles of law would be Page 11 of 15 C/SCA/8175/2013 JUDGMENT applicable in the cases of President and Vice President of a Taluka Panchayat, as the case may be. The present case, which pertains to the Vice President of a Taluka Panchayat would, therefore, be squarely covered by the above judgment.

12. After having carefully perused the proceedings and Resolution dated 22.04.2013, this Court finds that there is no mention, whatsoever, that the petitioner was granted an opportunity of addressing the house. This aspect becomes selfevident after the perusal of the affidavitinreply filed by respondent No.1, wherein it is nowhere stated that the petitioner was granted an opportunity of hearing. On the contrary, it is stated that the petitioner did not ask for an opportunity to address the members present in the meeting, nor did he make an attempt to address the house before the No Confidence Motion was put to vote.

13. In this regard, the provisions of subsection (3) of Section 70 mandate that the President or Vice President, as the case may be, against whom a No Confidence Motion is being discussed are clear and specific. The words shall have right to speak have Page 12 of 15 C/SCA/8175/2013 JUDGMENT been used. The right to speak is a mandatory right granted by the Statute and held to be such by this Court in Geetaben Bharatbhai Patel Vs. State of Gujarat and others (supra). It was, therefore, incumbent upon the respondent authorities to grant an opportunity of hearing to the petitioner. Their defence that the petitioner did not ask for an opportunity of speaking is baseless and cannot be countenanced. The respondents cannot wriggle out of their legal obligations to offer the petitioner an opportunity of hearing as per Section 70(3) merely by stating that he, himself, did not ask for one. Had the petitioner been granted an opportunity of speaking, the possibility cannot be ruled out that he may have been successful in making out a case in his favour by addressing the house, so that some members would have been persuaded to vote in his favour and against the No Confidence Motion. By not granting the petitioner an opportunity to speak, the respondents have caused him great prejudice.

14. It may be kept in mind that the petitioner is an elected representative and has been voted as the Vice President, by the members of the Panchayat. The action Page 13 of 15 C/SCA/8175/2013 JUDGMENT of the respondents in passing the No Confidence Motion against the petitioner without affording him an opportunity of hearing, strikes at the very root of the democratic process, which action deserves to be deprecated.

15. In view of the above discussion, and as the mandatory provisions of subsection (3) of Section 70 of the Act have been violated by the respondents by not offering the petitioner an opportunity of speaking before the No Confidence Motion against him was being discussed, the following order is passed:

The petition is allowed. The impugned Resolution No.49 and the proceedings dated 22.04.2013 of the Khambha Gram Panchayat are quashed and set aside. As a consequence thereof, the petitioner shall be reinstated as the VicePresident of the Khambha Gram Panchayat, forthwith.

16. Rule is made absolute, accordingly. There shall be no orders as to costs.

Direct Service of this order is permitted. Page 14 of 15

          C/SCA/8175/2013                            JUDGMENT



                                       (SMT. ABHILASHA KUMARI, J.)
piyush




                           Page 15 of 15

Unlock Advanced Research with PRISMAI

Gujarat High Court