Gujarat High Court
Smt.Kalavatiben Pirabhai Nazar vs The State Of Gujarat & 18 on 6 April, 2016
Author: A.J.Desai
Bench: A.J.Desai
C/SCA/1548/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1548 of 2016
With
CIVIL APPLICATION NO. 2855 of 2016
In
SPECIAL CIVIL APPLICATION NO. 2621 of 2016
With
SPECIAL CIVIL APPLICATION NO. 2621 of 2016
With
CIVIL APPLICATION NO. 2856 of 2016
In
SPECIAL CIVIL APPLICATION NO. 3374 of 2016
With
SPECIAL CIVIL APPLICATION NO. 3374 of 2016
With
SPECIAL CIVIL APPLICATION NO. 5414 of 2016
FOR APPROVAL AND SIGNATURE :-
HONOURABLE MR.JUSTICE A.J.DESAI Sd/-
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1. Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2. To be referred to the Reporter or not ? NO
3. Whether their Lordships wish to see the fair NO
copy of the judgment ?
4. Whether this case involves a substantial NO
question of law as to the interpretation of the
constitution of India, 1950 or any order made
thereunder ?
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SMT.KALAVATIBEN PIRABHAI NAZAR....Petitioner
Versus
THE STATE OF GUJARAT & 18....Respondents
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Appearance :
1. Special Civil Application No.1548 of 2016
MR VC VAGHELA, ADVOCATE for the Petitioner.
MR TEJAS P. MOTWANI, AGP for the Respondent Nos.1-3.
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MR ASHISH M DAGLI, ADVOCATE for the Respondent No.5-14.
MR VIJAY H NANGESH, ADVOCATE for the Respondent No.4.
MR YV VAGHELA, ADVOCATE for the Respondent Nos.15-19.
2. Special Civil Application No.5414 of 2016
MS M.O. NARSINGHANI, ADVOCATE for the Petitioner.
MR VISHRUT R. JANI, AGP ON ADVANCE COPY for Respondent No.1.
3. Special Civil Application No.3374 of 2016 &
Civil Application No.2856 of 2016
MR ASHISH M. DAGLI, ADVOCATE for the Petitioners.
MS RITU R. GURU, AGP ON ADVANCE COPY for Respondent Nos.1 & 2.
MR VIJAY H. NANGESH, ADVOCATE for the Respondent No.3.
MR D.P. KINARIWALA, ADVOCATE for the Respondent No.4.
4. Special Civil Application No.2621 of 2016 &
Civil Application No.2855 of 2016
MR V.C. VAGHELA, ADVOCATE for the petitioner.
MR VISHRUT R. JANI, AGP for the Respondent Nos.1-3.
MR ASHISH M DAGLI, ADVOCATE for the Respondent No.13.
MR VIJAY H NANGESH, ADVOCATE for the Respondent No.4.
MR YV VAGHELA, ADVOCATE for the Respondent Nos.15-19.
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CORAM : HONOURABLE MR.JUSTICE A.J.DESAI
Date : 06/04/2016
COMMON ORAL JUDGMENT
1. The question involved in the present petitions is "Whether the Councilors of a Municipality can move motion of no confidence against the President as well as Vice President on the same day and thereafter, can a common Resolution be passed with regard to the decision taken by the Councilors ?"
2. The brief facts arise from the record are as under :-
2.1 That general elections of Tharad Nagarpalika was held in the year 2013 and 21 persons were declared elected as Councilors by publishing their names in a Gazette issued by the State of Gujarat on 12.2.2013. The petitioner of Special Civil Application No.1548 of 2016 was elected as President of Tharad Nagarpalika on 24.8.2015. The petitioner of Special Civil Application No.5414 of 2016 was elected as Vice President of Page 2 of 13 HC-NIC Page 2 of 13 Created On Tue Apr 12 01:06:51 IST 2016 C/SCA/1548/2016 JUDGMENT Tharad Nagarpalika on the same day i.e. on 24.8.2015. On 1.12.2015, out of 21 members, 10 members circulated proposals for bringing no confidence motion against the President and Vice President of Tharad Nagarpalika under Section 36 of the Gujarat Municipalities Act, 1962 (hereinafter referred to as 'the Municipalities Act'). Since, neither the President nor Vice President, acted upon the said motion, the said proposals were forwarded to the Collector, Banaskantha. The Collector, Banaskantha appointed Deputy Collector, Tharad to convene the meeting under Section 51 (2) of the Act for the decision of motion of no confidence against the President as well as Vice President.
By order dated 18.1.2016, the Deputy Collector called special general meeting and the same was fixed on 27.1.2016. In the said meeting held on 27.1.2016, in presence of the Deputy Collector appointed under the Act, all councilors of Tharad Nagarpalika remained present. The proceedings in camera, as provided, concluded on the same day wherein 15 members have supported the no confidence motions moved by those 10 members. However, six members have opposed the said motions. Since 2/3rd members of the Nagarpalika supported the no confidence motions, by Resolution No.33 it was resolved that the President and Vice President have lost their right to continue as President and Vice President.
2.2 Therefore, the petitioner i.e. Smt. Kalavatiben P. Nazar had immediately approached this Court by way of Special Civil Application No.1548 of 2016 challenging Resolution No.33 passed in meeting dated 27.1.2016 of Tharad Nagarpalika and prayed to quash and set aside the said Resolution. Today, Shri Maheshbhai Bhavabhai Vaniya (Vice President) has circulated Special Civil Application No.5414 of 2016 challenging the said Resolution No.33 Page 3 of 13 HC-NIC Page 3 of 13 Created On Tue Apr 12 01:06:51 IST 2016 C/SCA/1548/2016 JUDGMENT passed in meeting dated 27.1.2016 of Tharad Nagarpalika and prayed to quash and set aside the said Resolution.
3. Pursuant to the notice issued by this Court, the respondents have appeared through their advocates and opposed grant of any relief in these petitions.
4. Thereafter, on 30.1.2016, the Collector, Banaskantha passed an order appointing one of the Councilor as President. Being aggrieved with the said action, some of the councilors preferred Special Civil Application No.3374 of 2016 challenging the said order of the Collector, Banaskantha.
5. During the pendency of the present writ petitions, since Resolution No.33 was passed in the meeting held on 27.1.2016 and no confidence motion was passed and there was no interim relief granted in favour of the petitioners, the Collector, Banaskantha by exercising his powers under the Act arranged a special general meeting of Tharad Nagarpalika on 20.2.2016 and, therefore, another writ petition being Special Civil Application No.2621 of 2016 was preferred. The coordinate Bench of this Court vide order dated 17.2.2016 passed in the said Special Civil Application directed not to fill up the posts of President and Vice President of Tharad Nagarpalika which has been continued till date.
6. In view of the above, all these matters are taken up for final disposal.
7. Mr. V. C. Vaghela, learned advocate appearing for the petitioner has vehemently submitted that the Deputy Collector appointed by the District Collector ought not to have called the Page 4 of 13 HC-NIC Page 4 of 13 Created On Tue Apr 12 01:06:51 IST 2016 C/SCA/1548/2016 JUDGMENT meeting on the same day with regard to no confidence motion against the President as well as Vice President. He would further submit that there is no provision in the Municipalities Act that a no confidence motion can be moved against President as well as Vice President on the same day. It is contrary to the provisions of Section 36 of the Municipalities Act. He would submit that the post of President or Vice President is different and, therefore, two separate proceedings ought to have been undertaken by the Deputy Collector. The meeting is convened for deciding two different no confidence motions on the same day for different posts. He would further submit that there is specific provision in Section 36 of the Municipalities Act that no confidence motion can be moved either against the President or Vice President. He would further submit that Resolution No.33 does not refer that separate proceedings were undertaken by the Officer appointed by the Collector as far as voting with regard to the no confidence motion against President and Vice President is concerned. He, therefore, would submit that the said Resolution is required to be quashed and set aside.
8. He would further submit that there is a mandatory provision of Section 36 of the Municipalities Act. It debars such proceedings. By relying upon a Full Bench decision of this Court in the case of Nandlal Bavanjibhai Posiya and others v. Director of Agriculture Marketing and Rural Finance and another, 2002 (2) GLR 1132, he would submit that in the said Full Bench decision, it has been held that if there is breach of any mandatory provisions, the entire convening of meeting and passing the Resolution would become illegal and required to be quashed and set aside. He has, therefore, submitted that the petition be allowed.
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9. On the other hand, Mr. P.S. Champaneri, learned advocate appearing for the respondent No.5 i.e. one of the councilors, has opposed this petition and submitted that Resolution has been passed strictly in accordance with law and after following the provisions of the Municipalities Act. He would submit that Section 36 of the Municipalities Act does not bar for moving a motion of no confidence jointly or severally against the President or Vice President on the same day. He would submit that two separate motions were circulated in the prescribed form on 1.12.2015 against the President as well as Vice President and, therefore, the submission made by learned advocate appearing for the petitioner is contrary to the facts emerges from the record. He would submit that since the President as well as Vice President did not call the meeting as provided under Section 51 of the Act, the Collector had exercised his power and called the meeting in accordance with law.
10. By taking me through several dates including the date of issuance of no confidence motion till the date of special general meeting called by the Deputy Collector, he would submit that there is no procedural lapse. He would submit that under Section 36 (1) of the Municipalities Act, the notice is required to be supported by not less than 1/3rd of total number of councilors of a Municipality. In the present case, 10 members have moved such no confidence motions and when the special general meeting was held on 27.1.2016, more than 2/3rd councilors have supported such motion as provided under Section 36 (2) of the Act and accordingly, the Resolution has been passed which is legal. He has relied upon the decision of the Full Bench of this Court in the case of Nandlal Bavanjibhai Posiya and others (Supra) and submitted that Page 6 of 13 HC-NIC Page 6 of 13 Created On Tue Apr 12 01:06:51 IST 2016 C/SCA/1548/2016 JUDGMENT councilors have elected the present petitioners as President and Vice President and since the said body had lost confidence in them, therefore, they have a right to remove them after following the procedure prescribed in law. He would submit that no confidence motion does not require statement of any reason for moving the motion and when 2/3rd councilors have lost confidence in them, they have right to remove the petitioners and, therefore, they have rightly removed the petitioners. He would further submit that no such objection was raised by any of the petitioner on the date of meeting.
11. He has also relied upon the decision of the Hon'ble Supreme Court in the case of Vipulbhai M. Chaudhary v. Gujarat Cooperative Milk Marketing Federation Limited and others, (2015) 8 SCC 1 and submitted that in the said decision, the Hon'ble Supreme Court has considered the decision in the case of Nandlal Bavanjibhai Posiya and others (Supra) and upheld the ratio laid down therein. He, therefore, would submit that the petitions may be dismissed.
12. I have heard learned advocates appearing for the respective parties. Having the facts in backdrop, I would like to reproduce Section 36 of the Municipalities Act which reads as under :-
"36. Motion of no confidence :-
(1) Any councilor or a municipality who intends to move a motion of no confidence against its president or vice president may give a notice thereof, in such form as may be prescribed by the State Government, to the Page 7 of 13 HC-NIC Page 7 of 13 Created On Tue Apr 12 01:06:51 IST 2016 C/SCA/1548/2016 JUDGMENT municipality. If the notice is supported by not less than one third of the total number of the then councilors of the municipality, 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 then councilors of the municipality, the president or, as the case may be, the vice president shall cease to hold office after a period of three days from the date on which the motion is carried unless he has earlier resigned; and thereupon the office held by him shall be declared to be vacant.
(3) Notwithstanding anything contained in this Act or the rules made thereunder, the president, or as the case may be, the vice-
president shall not preside over a meeting in which a motion of no confidence against him is discussed; but he shall have the right to speak in or otherwise take part in the proceedings of such meeting (including the right to vote)."
13. The facts of the present case reveal that 10 councilors moved two different no confidence motions on 1.12.2015 in the form prescribed under the Act, one against the President, another against Vice President of Tharad Nagarpalika. Since no action was undertaken either by the President or the Vice President as envisaged under Section 51 (2) of the Act, the Collector on Page 8 of 13 HC-NIC Page 8 of 13 Created On Tue Apr 12 01:06:51 IST 2016 C/SCA/1548/2016 JUDGMENT receiving report from the Chief Officer of Nagarpalika, called a meeting and appointed the Deputy Collector, who by his order dated 18.1.2016, called the meeting of the councilors on 27.1.2016 and all were informed to remain present in the said meeting. More than 7 days clear notice was given for arranging the meeting which is in accordance with sub-section (3) of Section 51. The meeting was convened on 27.1.2016 where all 23 councilors attended the meeting. The proceedings were initiated and the agenda was read over in presence of all the members. Initially, members were requested to vote with regard to no confidence motion moved against them. Out of 21 members, 15 councilors supported the no confidence motions and six members opposed the no confidence motions. Since more than 2/3rd members of the Nagarpalika have supported the no confidence motions, Resolution No.33 came to be passed. Section 36 (1) of the Municipalities Act does not bar that two no confidence motions can be moved against the President or Vice President on the same day. The word 'or' used in Section 36 of the Municipalities Act cannot be interpreted in its stricto senso meaning. Section 36 does not preclude the councilors to move two no confidence motions on the same day. There is no mandatory provision that on one day, only a meeting can be held for deciding the no confidence motion either against the President or Vice President. When all councilors including the petitioners (President and Vice President) were put to notice by different two motions, passing a common resolution cannot be treated an illegal one. It is pertinent to note that such contentions have not been taken by them in the meeting itself. Therefore, in my view, there is no substance in the submissions made by learned advocate appearing for the petitioners that there is a breach of mandatory provisions while conducting the proceedings. It is pertinent to note that 2/3rd councilors have lost confidence in them and have exercised their Page 9 of 13 HC-NIC Page 9 of 13 Created On Tue Apr 12 01:06:51 IST 2016 C/SCA/1548/2016 JUDGMENT rights provided under the Municipalities Act.
14. In the case of Nandlal Bavanjibhai Posiya and others (Supra), the Full Bench of this Court in paragraph 60 has observed as under :-
"60. From the observations quoted above, it is clear that no confidence motion does not require statement of any reasons for moving the motion nor does it require passing of motion by stating reasons for passing the same. As has been rightly emphasised by the counsel for the respondents, confidence in the elected holder of office is the soul of democracy. All democratic institutions function on mutual confidence between the members and their leader. Loss of confidence without anything else, which is based on objective basis, is sufficient to move the motion......................................."
15. In the decision of Full Bench this Court in the case of Jayendrasinh Bhupatsinh Diama v. State of Gujarat through Additional Secretary (Inquiry) and others, Special Civil Application No.10128 of 2011 rendered on 17.11.2011, the decision in the case of Nandlal Bavanjibhai Posiya and others (Supra) is considered. The following observations have been made by the Full Bench of this Court in paragraph 28 as under :-
"28. We may also state that in a matter to consider the motion of no confidence, it is Page 10 of 13 HC-NIC Page 10 of 13 Created On Tue Apr 12 01:06:51 IST 2016 C/SCA/1548/2016 JUDGMENT the confidence of the elected representative/member which is of the paramount consideration. No procedure for holding the meeting or otherwise can be allowed to operate, so as to frustrate the real will and desire of the elected representative. If the elected representatives have lost the confidence upon the Sarpanch or the Up- sarpanch or President or Vice President of any Panchayat, as the case may be, only requirement would be to the State as to whether such motion is to be carried out or not. Even if it is presumed for the sake of consideration that there were some procedural lapse while convening the meeting and/or of issuing the agenda and or other procedural aspects, unless it is found to be mandatory, the same cannot be allowed to operate, which results into nullifying the effect of motion of no confidence, which is otherwise passed by the requisite majority of the elected representatives, more particularly when the legislature itself has provided for contingencies thereupon and cessation of office by the office-bearers against whom the motion of no confidence is carried. The powers under Section 259 of the Act of the State Government is broadly concerned with the procedure to be adopted by the Panchayat for the purpose of maintenance of its record and proceedings. In view of the aforesaid Page 11 of 13 HC-NIC Page 11 of 13 Created On Tue Apr 12 01:06:51 IST 2016 C/SCA/1548/2016 JUDGMENT observations as proceedings and procedure pertaining to motion of no confidence do not assume much importance in the matter of carrying of motion of no confidence and giving its effect, even if the principles of purposive interpretation of section of the statute are considered, it would be reasonable to hold that the power of the State Government under Section 259 of the Act shall not be attracted in a matter where it is pertaining to carry out the motion of no confidence by the elected representative. But is it that if no remedy is available under the statute i.e., the Act, such officer-bearer against whom the motion of no confidence is passed is remediless, even if the mandatory procedure has not been followed for consideration of motion of no confidence and the serious prejudice is caused to him we find that we need not elaborate the said contention, because it is hardly required to be stated that if the statute does not provide for any remedy, the aggrieved person can invoke the power under Article 226 of the Constitution of India, provided such a case is made out in accordance with law."
16. In view of the above ratio laid down by the Full Bench of this Court which has been confirmed by the Hon'ble Supreme Court in the case of Vipulbhai M. Chaudhary (Supra) (relevant observations in paragraph 53 of the decision), I am of the opinion Page 12 of 13 HC-NIC Page 12 of 13 Created On Tue Apr 12 01:06:51 IST 2016 C/SCA/1548/2016 JUDGMENT that both the writ petitions i.e. Special Civil Application Nos.1548 and 5414 of 2016 are meritless and hence, the same are accordingly dismissed. Notice is discharged.
17. In view of dismissal of the above petitions, Special Civil Application Nos.2621 and 3374 of 2016 as well as Civil Application Nos.2855 and 2856 do not survive and accordingly they are disposed of. Notice discharged. Interim relief, if any, stands vacated.
18. The Collector, Banaskantha shall proceed further with the process of election of President and Vice President of Tharad Nagarpalika in accordance with law.
19. At this stage, a request made by Mr. V.C. Vaghela, learned advocate appearing for the petitioner to stay the operation, implementation and execution of this order for a period of three weeks is hereby refused.
Sd/-
(A.J.DESAI, J.) Savariya Page 13 of 13 HC-NIC Page 13 of 13 Created On Tue Apr 12 01:06:51 IST 2016