Gujarat High Court
Maheshkumar Kantilal Dave vs Development Commissioner on 17 September, 2020
Author: J.B.Pardiwala
Bench: Vikram Nath, J.B.Pardiwala
C/LPA/1278/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1278 of 2018
In R/SPECIAL CIVIL APPLICATION NO. 13068 of 2018
With
CIVIL APPLICATION (FOR ORDERS) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 1278 of 2018
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MAHESHKUMAR KANTILAL DAVE
Versus
DEVELOPMENT COMMISSIONER
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Appearance:
MR DIPEN DESAI(2481) for the Appellant(s) No. 1,10,2,3,4,5,6,7,8,9
for the Respondent(s) No. 10,11,12,2,3,4,5,6,7,8,9
GOVERNMENT PLEADER(1) for the Respondent(s) No. 1
MR RB THAKOR(6743) for the Respondent(s) No. 1
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. VIKRAM NATH
and
HONOURABLE MR. JUSTICE J.B.PARDIWALA
Date : 17/09/2020
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA) By this Civil Application, the applicants (original appellants) have prayed for the following reliefs :
"A. Pending hearing and final disposal of the appeal, the Hon'ble Court be pleased to restrain the opponent authorities from holding election of President and Vice President of Taluka Panchayat, Lakhni.
B. Pending hearing and final disposal of the appeal, the Hon'ble Court be pleased to direct the opponent authorities to handover the charge of Lakhni Taluka Panchayat to its elected body.Page 1 of 13 Downloaded on : Fri Oct 16 02:04:18 IST 2020 C/LPA/1278/2018 ORDER
C. This Hon'ble Court be pleased to grant such other and further relief in the interest of justice."
In the wake of few developments that have taken place during the pendency of the main matter, i.e. the Letters Patent Appeal No.1278 of 2018, we propose to dispose of the Appeal itself.
It appears from the materials on record that the appellants (original writ-applicants) came before this Court by filing the Special Civil Application No.13068 of 2018 questioning the legality and validity of the order dated 18 th August 2018 passed by the Development Commissioner superseding the Lakhni Taluka Panchayat for a period of six months from the date of publication of the notification in the Government Gazette, in exercise of powers conferred under sub-section (1) of Section 253 of the Gujarat Panchayats Act, 1993. The writ-applicants were declared as the elected members of the Lakhni Taluka Panchayat on 26th February 2018. There were total 22 seats in the said Panchayat, out of which 11 members affiliated to the Indian National Congress party and 11 members affiliated to the BJP. The writ-applicant no.1 came to be declared as the President by draw of lots and one Gangaben Sureshkumar Patel came to be declared as the Vice President of the said Panchayat.
It appears that the Panchayat failed to pass budget. In such circumstances, the Development Commissioner called upon the Panchayat to show-cause why the Panchayat should not be superseded on such ground. Ultimately, the final order dated 18th August 2018 was passed superseding the Panchayat for a period of six months.
Page 2 of 13 Downloaded on : Fri Oct 16 02:04:18 IST 2020 C/LPA/1278/2018 ORDERThe appellants lost before the learned Single Judge. The learned Single Judge, while rejecting the writ-application, vide judgment dated 19.09.2018, observed in paragraphs 15 and 16 as under :
"15. The Court also does not find any substance in the submission of Mr.Kavina that the impugned order being in violation of the principles of natural justice was vitiated. It is not disputed that the respondent had by the notice dated
02.05.2018 called upon the Taluka Panchayat to show cause as to why the proceedings under Section 253 read with Section 138(4) should not be initiated for not approving the budget for the year 2018-19. Pursuant to the said notice, the twenty one members of the Taluka Panchayat resolved in the meeting held on 21.05.2018 that the budget was not approved. The respondent thereafter had fixed the hearing on 23.07.2018. On 23.07.2018, the petitioner no. 1 on behalf of other 9 members had remained present before the respondent and sought adjournment on the ground that he wanted to engage an advocate. The respondent therefore had granted adjournment in the interest of justice and kept the hearing on 07.08.2018. On the said day the petitioner no. 1instead of remaining present in person or through his advocate sent an application for adjournment on the ground that his brother was operated. It appears from the medical certificate produced on record that his brother was under
the treatment of Dr.K.S.Patel from 02.08.2018 to 03.08.2018 and that he was advised rest from 03.08.2018 to 10.08.2018. There is nothing to suggest that his brother had Page 3 of 13 Downloaded on : Fri Oct 16 02:04:18 IST 2020 C/LPA/1278/2018 ORDER undergone any operation during the said period. The said excuse for not remaining present before the respondent on the ground that his brother was operated, does not find any support from the said medical certificate. Be that as it may, the petitioner no. 1 being the President of the Panchayat was very much aware about the legal consequences of not remaining present personally or through his advocate. If he had chosen not to reply to the show cause notice or remain present on the dates of hearing fixed by the respondent, it could not be said that he was denied the opportunity of hearing. There is also nothing on record to suggest that the petitioner no. 1 had ever asked for the copies of the affidavits field by the 12 members of the Panchayat and he was denied the same. Under the circumstances, by no stretch of imagination could it be said that there was violation of the principles of natural justice at the instance of the respondent before passing the impugned order. The court therefore does not find any illegality or infirmity in the impugned order dated 18.08.2018 passed by the respondent at Annexure A of the petition.
16. As regards the alternative prayer made for holding the elections at the earliest, it goes without saying that the respondent has to follow the statutory provisions for reconstitution of the Panchayat as contemplated under the said Act."
Being dissatisfied with the judgment and order passed by the learned Single Judge, the appellants preferred the Letters Patent Appeal No.1278 of 2018.
Page 4 of 13 Downloaded on : Fri Oct 16 02:04:18 IST 2020 C/LPA/1278/2018 ORDERWe take notice of the order dated 15th February 2019 passed by the Appeal Court, which reads thus :
"1. Heard learned advocates for the parties at length.
2. By way of draft amendment dated 11.02.2019 and granted on the same date, the challenge is to the order dated 07.02.2019 passed by the District Development Officer, Banaskantha whereby election of President and Vice-President of Lakhni Taluka Panchayat is declared.
2. Mr.Bharat Naik, learned Senior Counsel appearing with Mr.Dipen Desai, learned advocate for the appellant relied on various provisions of the Gujarat Panchayats Act, 1993 and Rules made thereunder and it is submitted that Section 253(1)(2)(3)(4)(c) provide for consequence of supersession of the committee and supersession and dissolution required to be interpreted in the context of constitution and reconstitution of Taluka Panchayat so defined under Sections 10 and 13 of the Act of 1993. It is submitted that sub-section (2) of Section 253 of the Act refers to dissolution or supersession but consequence thereof are same namely all members of the Panchayat shall from the date specified in the order, vacate their office as such members. Sub-section (3) is about when a Panchayat is dissolved or superseded, it shall be reconstituted in the manner provided under this Act i.e. under Section 13 of the Act and sub-section (4) particularly clause (c) is about consequence of a Panchayat either on dissolution or supersession as the case may be. The Page 5 of 13 Downloaded on : Fri Oct 16 02:04:18 IST 2020 C/LPA/1278/2018 ORDER panchayat shall be reconstituted in the manner provided under the Act and the persons vacating office shall be eligible for re-election and therefore all persons who have vacated their office under sub-section (2) of Section 253 are to be re-elected and not only President or Vice-President.
3. As against above, the arguments canvassed by Mr.Prakash Jani, learned Additional Advocate General in defence of the impugned notification is based on purposive interpretation of Sections 10, 13, 253 to be considered in juxtaposition to Article 243(e) of the Constitution of India and introduced in the year 1993 and effect thereto given in The Provisional Municipal Corporation Act and Gujarat Municipalities Act wherein supersession no more remains in the statute book. Submissions are canvassed that there is a difference between dissolution and supersession and also between constitution and reconstitution of taluka panchayats and consequences following therefrom. That for a limited period of suspension, in the facts of this case for six months with effect from 18.08.2018 to 17.02.2019, election of office bearers of President and Vice President of taluka panchayats is to be held as per the notification impugned will be in consonance with revival of membership of all members of the panchayats upon completion of six months and reelection of all members is not necessary in view of the provisions of the Act about manner provided for the election of the President and Vice President of taluka panchayat under section 63 of the Act of 1993. That both namely President and Vice-President shall be elected from amongst its elected members and such election presupposes Page 6 of 13 Downloaded on : Fri Oct 16 02:04:18 IST 2020 C/LPA/1278/2018 ORDER either constitution of a taluka panchayat under section 10 or its reconstitution under section 13 or under any other provisions of the Panchayat Act first meeting is to be called for.
4. Having heard the submissions made by learned advocates for the parties herein above, we may prima facie refer to the relevant sections of The Gujarat Panchayats Act, 1993. Sections 10 and 13 of the Act read as under:
"10. Constitution of Taluka Panchayats.-
(1) A taluka panchayat shall consist of elected members as provided in sub-section (4).
(2) The elected members of a taluka panchayat shall be elected from amongst the qualified voters of the taluka.
(3) A taluka panchayat shall have a President and Vice-President elected by its elected members from amongst themselves.
...
13. Duration of Panchayats and their reconstitution.-
(1) Every panchayat, unless sooner dissolved under this Act shall continue for five years from the date appointed for its first meeting and no longer.
(2) An election to constitute a panchayat shall be completed-Page 7 of 13 Downloaded on : Fri Oct 16 02:04:18 IST 2020 C/LPA/1278/2018 ORDER
(a) before the expiry of its duration specified in sub-
section (1);
(b) before the expiration of a period of six months from the date of its dissolution;
Provided that where the remainder of the period for which the dissolved panchayat would have continued is less than six months, it shall not be necessary to hold any election under this sub-section for constituting the panchayat for such period.
(3) A panchayat constituted upon the dissolution of a panchayat before the expiration of its duration shall continue only for the remainder of the period for which the dissolved panchayat would have continued under sub-section (1) had it not been so dissolved.
5. In the context of following sections, namely, Section 10 about constitution of Taluka Panchayats, Section 13 about duration of Panchayats and their reconstitution along with sub-sections (1), (2) & (3), Section 15 pertaining to Election under Chapter III with heading 'Election of Members of Panchayat, Election Disputes, Etc.' read with Section 18 about preparation of list of voters which envisages two eventualities-preparation of such voters list not later than two months before expiry of the duration of a panchayat under Section 13 and in a case of Panchayat which is to be constituted or reconstituted under the provisions of the Page 8 of 13 Downloaded on : Fri Oct 16 02:04:18 IST 2020 C/LPA/1278/2018 ORDER Panchayat Act otherwise than on the expiry of its duration under section 13 etc, Section 63 about first meeting of Panchayat and election of President and Vice-President and sub-section (1) further provides that on the constitution of a taluka panchayat or on its reconstitution under Section 13 or under any other provisions of the Panchayat Act together with Section 253 pertaining to Dissolution or supersession of panchayats with sub-sections (1), (2), (3) & (4) which provide for various events taking place for exercising powers for both,consequence thereof including effect on membership of elected members of such panchayats to vacate their office as such members from the date specified in the order of dissolution or supersession as the case may be and reconstitution envisaged under sub-section (3) when a panchayat is dissolved or superseded and sub-section (4)(c). Accordingly, we reproduce section 253 which reads as under:
"253. (1) If, in the opinion of the State Government,a Panchayat exceeds or abuses its powers or is incompetent to perform or makes persistent default in the performance of the duties imposed on it or functions entrusted to it under any provision of this Act or by or under any other law for the time-being in force, or fails to obey an order made under this Act by the Panchayat superior thereto or by the State Government or any officer authorised by it,under this Act or persistently disobeys any of such orders, the State Government may, after consultation with the District Panchayat in the case of a Panchayat Page 9 of 13 Downloaded on : Fri Oct 16 02:04:18 IST 2020 C/LPA/1278/2018 ORDER subordinate to it and after giving the Panchayat an opportunity of rendering an explanation, by order in the Official Gazette-
(i) dissolve such Panchayat, or
(ii) supersede such Panchayat for the period specified in the order ;
Provided that such period shall not be longer than six months or the residual period of duration of such Panchayat whichever is less :
Provided further that the State Government may subject to the preceding proviso from time to time after making such inquiry as it may consider necessary by an order published in the Official Gazette extend the period ofsupersession of such Panchayat until such date as may be specified in the order or by like order curtail the period of supersession.
(2) When a Panchayat is dissolved or superseded,all members of the Panchayat, shall from the date specified in the order, vacate their office as such members.
(3) When the Panchayat is dissolved or superseded, it shall be reconstituted, in the manner provided in this Act.Page 10 of 13 Downloaded on : Fri Oct 16 02:04:18 IST 2020 C/LPA/1278/2018 ORDER
(4) If a Panchayat is dissolved or superseded- (a) all the powers and duties of the Panchayat shall during the period of dissolution or supersession as the case may be exercised and performed by such person or persons as the State Government may, from time to time appoint in that behalf, and (b) all property vested in the Panchayat shall during the period of dissolution or supersession, as the case may be, vest in the State Government; and (c) on the dissolution, or, as the case maybe, on the expiry of the period of supersession, the Panchayat shall be reconstituted in the manner provided in this Act, and the persons vacating office shall be eligible for re-election."
6. Considering the above, we are of the view that the matter deserves consideration and to be heard finally on19.03.2019.
7. Considering Sections 10 & 13 read with Sections 15 & 18 of the Act, in this case admittedly Taluka Panchayat is superseded in exercise of powers under Section 253 of the Act, 1993 holding elections only of President and Vice- President of the Taluka Panchayat under challenge and the same deserves detailed consideration in the context of language of sub-sections (i), (ii), (2), (3), (4)(c) of Section 253 of the Act, 1993 and further effect of Article 243E of the Constitution of India introduced in the year 1993 and amendment carried out in the Provincial Municipal Corporation Act and also in the Gujarat Municipalities Act,1963 wherein supersession no more remains in the Page 11 of 13 Downloaded on : Fri Oct 16 02:04:18 IST 2020 C/LPA/1278/2018 ORDER statute book is also to be considered, we are of the view that the impugned notification dated 07.02.2019 and consequential action part of the District Development Officer, District Panchayat Banaskantha deserves to be stayed till 19.03.2019. List on 19.03.2019."
Thus, by virtue of the aforesaid order passed by the Appeal Court, the notification dated 7th February 2019 and the consequential act on the part of the DDO, Banaskantha, came to be stayed.
By the present Civil Application, it has been brought to our notice that the six months' period of super-session came to an end on 17th February 2019. As the period of super-session expired, the term of the Administrator could also be said to have expired. The applicants requested the authorities, in such circumstances, to handover the charge to the elected body. However, the Development Commissioner extended the term of the Administrator vide his order dated 5th October 2019 till the disposal of the Letters Patent Appeal.
It appears that the District Panchayat, Banaskantha, vide its order dated 5th June 2020, forwarded a proposal to the Development Commissioner for holding election of the President and the Vice President of all the Taluka Panchayats in the Banaskantha District including the Lakhni Taluka Panchayat.
Mr.Dipen Desai, the learned counsel appearing for the applicants, would submit that as the term of the Administrator has already expired, the charge of the Taluka Panchayat should Page 12 of 13 Downloaded on : Fri Oct 16 02:04:18 IST 2020 C/LPA/1278/2018 ORDER be given back to the elected body, i.e. the applicants herein, and the authorities are required to be restrained from holding the elections of the President and the Vice President of the Lakhni Taluka Panchayat.
Having heard the learned counsel appearing for the parties and having gone through the materials on record, we are of the view that nothing survives in this litigation as the six months' period of super-session expired long time back, and on expiry of such statutory time period, the applicants, as the elected members, should have been handed over the charge of the Panchayat.
We dispose of this Civil Application as well as the main matter, i.e. the Letters Patent Appeal No.1278 of 2018, directing the Development Commissioner, State of Gujarat, to handover the charge of the Lakhni Taluka Panchayat to the applicants herein being the duly elected members.
With the above, we close the proceedings and disposed of the matter including the Civil Applications, if any.
(VIKRAM NATH, CJ.) (J. B. PARDIWALA, J.) /MOINUDDIN/ NAIR SMITA V. Page 13 of 13 Downloaded on : Fri Oct 16 02:04:18 IST 2020