Gujarat High Court
Pannaben Dilipbhai Bhatt vs District Panchayat, Vadodara on 3 October, 2019
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
C/SCA/15905/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15905 of 2019
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PANNABEN DILIPBHAI BHATT
Versus
DISTRICT PANCHAYAT, VADODARA
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Appearance:
MR BM MANGUKIYA(437) for the Petitioner(s) No. 1
MS BELA A PRAJAPATI(1946) for the Petitioner(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 1,2
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CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 03/10/2019
ORAL ORDER
1. This petition is filed under Article 226 of the Constitution of India in which the petitioner has prayed that Resolution dated 16.09.2019 passed in the meeting of the District Panchayat, Vadodara regarding motion of no confidence against the petitioner be quashed and set aside.
2. Heard learned advocate Mr. B.M.Mangukiya for the petitioner and learned advocate Mr. H.S.Munshaw for the respondents.
3. The facts of the present case in nutshell are as under:
3.1. It is stated in the memo of the petition that the election of the District Panchayat, Vadodara was held in December, 2015. The petitioner Page 1 of 16 Downloaded on : Sat Oct 05 22:18:07 IST 2019 C/SCA/15905/2019 ORDER contested from 8Dashrath Constituency and was declared elected. The tenure of the President is of two and half years. The election of the President of the District Panchayat, Vadodara was held on 20.12.2015 in which one Ghanshyambhai Somabhai Patel was elected as President. After the expiry of the term, meeting was convened for electing the President on 20.06.2018. The said seat was of general woman category. Petitioner contested the said election and was declared elected as President. It is also stated that out of 36 members including the President, 13 members are affiliated with Bhartiya Janta Party and 22 members are affiliated with Indian National Congress and one as independent candidate.
3.2. It is further stated that 24 members of District Panchayat moved the motion of No Confidence against the petitioner on 23.08.2019. The petitioner forwarded a communication dated 26.08.2019 to the respondents stating that the signatures of certain members have been scratched and appears to have been cancelled and therefore necessary verification may be done. Thereafter, respondent No.2 informed the petitioner that as per Section 84 of the Gujarat Panchayat Act, 1993 (hereinafter referred to as the Act), a meeting for passing the motion of no confidence is required to be called within 15 days from the Page 2 of 16 Downloaded on : Sat Oct 05 22:18:07 IST 2019 C/SCA/15905/2019 ORDER date on which the notice of such motion is received by the Panchayat. Accordingly, the District Development Officer called the meeting of District Panchayat on 16.09.2019 at 12:00 p.m. The agenda notice was issued on 07.09.2019, whereby, intimation was given about the date, place and time of the meeting for considering the motion of no confidence.
3.3. It is also stated that whip has been issued by the Indian National Congress Party to the members who have contested the election on the symbol of the Indian National Congress Party to vote against the passing of motion of no confidence. One copy of whip was forwarded to the respondents by forwarding letter dated 13.09.2019 by the petitioner pointing out about the whip.
3.4. Thereafter, on 16.09.2019, meeting was convened on 16.09.2019 as scheduled at 12:00 p.m. in the meeting hall of the District Panchayat, Vadodara for the purpose of dealing with the motion of no confidence. The whip was also read in the said meeting. It is specifically stated in the memo of petition that all the members who were affiliated with the Indian National Congress Party were aware about the fact that the whip has been issued by the party mandating them to vote against the passing of motion of no confidence Page 3 of 16 Downloaded on : Sat Oct 05 22:18:07 IST 2019 C/SCA/15905/2019 ORDER against the petitioner. In the said meeting, thereafter, motion of no confidence was passed by the majority of 30 votes. Six members voted against the passing of the motion of no confidence.
3.5. The petitioner, thereafter, submitted an application on 17.09.2019 for getting certified copy of the Minutes of the Meeting recorded on 16.09.2019, compact disc of videography done at the said meeting and the photographs taken in the said meeting. It is alleged that the said documents are not supplied. Petitioner has, therefore, preferred the present petition.
4. Learned advocate Mr. Mangukiya for the petitioner, at the outset, placed reliance upon the provisions contained in Section 84(3) of the Act and from the said provision, it is pointed out that the President against whom motion of no confidence is sought to be passed shall have a right to speak or otherwise to take part in the proceedings of such meeting including the right to vote. In the present case, it is alleged that the petitioner was not provided with the opportunity to speak in the meeting which is mandatory provision and therefore only on this ground the Resolution dated 16.09.2019 by which motion of no confidence is passed against the Page 4 of 16 Downloaded on : Sat Oct 05 22:18:07 IST 2019 C/SCA/15905/2019 ORDER petitioner is required to be quashed and set aside.
5. Learned advocate Mr. Mangukiya has placed reliance upon the decision rendered by this Court in the case of Geetaben Bharatbhai Patel v. State of Gujarat & Ors., reported in 2006(1) G.L.H. 91. Learned advocate Mr. Mangukiya has referred the relevant paragraphs of the said decision and thereafter submitted that the issue involved in the said matter was with regard to interpretation of Section 56(3) of the Act which is pari materia to Section 84(3) of the Act. It is further contended that this Court has held that requirement of Section 56(3) of the Act is mandatory in nature and not merely directory. It is further submitted that the said decision was challenged by filing Letters Patent Appeal No.1677 of 2005. However, the Division Bench of this Court, vide order dated 08.12.2005, dismissed the Letters Patent Appeal and thereby confirmed the decision rendered by the learned Single Judge.
6. It is further submitted that in the present case, the respondents have wrongly placed reliance upon the order dated 23.08.2018 passed by the learned Single Judge of this Court in the Page 5 of 16 Downloaded on : Sat Oct 05 22:18:07 IST 2019 C/SCA/15905/2019 ORDER case of Parshottambhai Talsibhai Chhaniyara v. Taluka Vikas Adhikari Taluka Panchayat Mandal in Special Civil Application No.8059 of 2018. It is contended that if the learned Single Judge of this Court was not agreeable with the view taken by another Single Judge of this Court in the case of Geetaben Bharatbhai Patel (supra), the said learned Single Judge ought to have referred the issue to the Division Bench. However, the said learned Single Judge has not properly dealt with the decision rendered by this Court in the case of Geetaben Bharatbhai Patel (supra). It is also contended that the order dated 23.08.2018 passed by the learned Single Judge in Special Civil Application No.8059 of 2018 was challenged by filing Letters Patent Appeal No.1135 of 2018 and the Division Bench of this Court has confirmed the order passed by the learned Single Judge. However, even the order dated 31.08.2018 passed by the Division Bench in Letters Patent Appeal No.1135 of 2018 can be said to be per incuriam and therefore per incuriam order is not required to be followed by this Court in the present matter. Hence, it is urged that the impugned Resolution be quashed and set aside.
7. At this stage, learned advocate Mr. Mangukiya has placed reliance upon the decisions rendered by the Hon'ble Supreme Court in the case of Page 6 of 16 Downloaded on : Sat Oct 05 22:18:07 IST 2019 C/SCA/15905/2019 ORDER A.R.Antulay v. R.S.Nayak & Anr., reported in AIR 1988 SC 1531 as well as in the case of Siddharam Satlingappa Mhetra v. State of Maharashtra & Ors., reported in AIR 2011 SC 312. Learned advocate Mr. Mangukiya has more particularly placed reliance upon the observations made by the Hon'ble Supreme Court in paragraph nos. 31 to 36 of the said decision. It is, therefore, urged that this petition be allowed.
8. On the other hand, learned advocate Mr. H.S.Munshaw appearing for the respondents, has referred the affidavitinreply filed on behalf of respondent No.2 and submitted that petitioner has not asked for an opportunity to address the house on the issue of motion of no confidence. On the contrary, petitioner had taken part in the said meeting and voted against the motion of no confidence. Thus, when the petitioner has taken part in the meeting, it cannot be said that there is violation of provisions contained in Section 84(3) of the Act as alleged by the petitioner.
9. At this stage, learned advocate Mr. Munshaw has referred the order dated 23.08.2018 passed by learned Single Judge of this Court in Special Civil Application No.8059 of 2018, copy of which is placed on record at page 79 of the Page 7 of 16 Downloaded on : Sat Oct 05 22:18:07 IST 2019 C/SCA/15905/2019 ORDER compilation. After referring to the same, it is submitted that in the said decision, the learned Single Judge has considered another decision dated 11.07.2018 rendered in the case of Bharatbhai Ravjibhai Vadi v. State of Gujarat passed in Special Civil Application No.8204 of 2018. In the said case, this Court has observed that there is no right conferred on the Sarpanch to invite him to speak. It could never be the proposition that until he exercise his right to speak, motion could not be passed. It would be his choice or discretion whether to exercise his right to speak and raise objection against the motion, or otherwise to participate in the proceedings.
10. Learned advocate Mr. Munshaw further submits that order dated 23.08.2018 passed by learned Single Judge of this Court in Special Civil Application No.8059 of 2018 was challenged by filing Letters Patent Appeal No.1135 of 2018 and the Division Bench of this Court, vide order dated 31.08.2018, dismissed the Letters Patent Appeal and confirmed the order passed by the learned Single Judge. In the said decision, the Division Bench has considered the decisions rendered in the case of Geetaben Bharatbhai Patel (supra) as well as the decision rendered in the case of Thakore Bhalusangji Mansangji & Ors., v.
Page 8 of 16 Downloaded on : Sat Oct 05 22:18:07 IST 2019 C/SCA/15905/2019 ORDERState of Gujarat & Ors., reported in 2009(3) G.L.H. 146. It is therefore urged that when the petitioner has taken part in the meeting and exercised her right to vote, the contentions raised by learned advocate for the petitioner may not be accepted. It is, therefore, urged that this petition be dismissed.
11. Having heard the learned advocates appearing for the parties and having gone through the material placed on record, it is revealed that the motion of no confidence was moved against the petitioner and therefore meeting was held on 16.09.2019. If the minutes of the meeting, copy of which is produced at page 26 of the compilation is carefully seen, it is revealed that the petitioner has produced a copy of the communication dated 13.09.2019 addressed by her wherein it was pointed out that on 11.09.2019, Gujarat Pradesh Congress Samiti had issued a whip in favour of the members who are elected on the symbol of Indian National Congress Party. The said whip was produced before the meeting and it was read in the meeting before the members. Thus, an opportunity was given to the petitioner to produce the said whip in the meeting. Thereafter, petitioner has participated in the meeting by casting her vote against the motion of no confidence.
Page 9 of 16 Downloaded on : Sat Oct 05 22:18:07 IST 2019 C/SCA/15905/2019 ORDER12. In the aforesaid factual background, if the decision upon which reliance is placed by learned advocate Mr. Mangukiya is carefully seen, it is revealed that in the case of Geetaben Bharatbhai Patel (supra), the learned Single Judge was considering the provisions contained in section 56(3) of the Act, which is pari materia to Section 84(3) of the Act, wherein, it is held that provision contained in Section 56(3) of the Act is mandatory in nature and not directory. The said decision was challenged by filing Letters Patent Appeal No.1677 of 2005 before the Division Bench of this Court. The Division Bench dismissed the said Letters Patent Appeal vide order dated 08.12.2005.
13. Thereafter, another learned Single Judge of this Court in the case of Bharatbhai Ravjibhai Vadi (supra) considered the provisions contained in Section 56 of the Act and thereafter observed in para 9 as under:
"9. From the bare reading of the said provisions, it transpires that the Sarpanch against whom the motion of no confidence is moved, cannot preside over the meeting, but he has right to speak or otherwise to take part in the proceedings of such meeting, including the right to vote. Hence, the Sarpanch against whom the motion is moved could Page 10 of 16 Downloaded on : Sat Oct 05 22:18:07 IST 2019 C/SCA/15905/2019 ORDER exercise his right to speak before the motion is passed or otherwise he could take part in the proceedings, including to exercise his right to vote. There is no right conferred on him to invite him to speak. It could never be the proposition that until he exercises his right to speak, motion could not be passed. It would be his choice or discretion whether to exercise his right to speak and raise objection against the motion, or otherwise to participate in the proceedings."
14. The aforesaid order dated 11.07.2018 passed by the learned Single Judge in the case of Bharatbhai Ravjibhai Vadi (supra) is challenged by filing Letters Patent Appeal No.983 of 2018, wherein the Division Bench of this Court has issued notice on 26.07.2018. However, the order passed by the learned Single Judge has not been stayed by the Division Bench. The Division Bench has only observed that the Deputy Sarpanch has taken over the charge and therefore he can continue with the charge but no fresh election is to be conducted.
15. Relying upon the order dated 11.07.2018 passed in the case of Bharatbhai Ravjibhai Vadi (supra), learned Single Judge of this Court, once again, in the case of Parshottambhai Talsibhai Chhaniyara (supra), by order dated 23.08.2018, held that once the petitioner has participated in Page 11 of 16 Downloaded on : Sat Oct 05 22:18:07 IST 2019 C/SCA/15905/2019 ORDER the said meeting and exercised his right to vote, it cannot be said that the provisions contained in Section 56 of the Act were not complied with. The said order passed by the learned Single Judge was challenged by filing Letters Patent Appeal No.1135 of 2018. The Division Bench of this Court, vide order dated 31.08.2018, dismissed the said Letters Patent Appeal, wherein the Division Bench has considered the decision rendered by the learned Single Judge in the case of Geetaben Bharatbhai Patel (supra). The Division Bench of this Court has observed in para 10, 11, 12 and 12.1 as under:
"10. Learned counsel appearing for the petitioner has raised a contention that the respondents have violated his right to speak as provided under subsection (3) of Section 56 of the Act as no discussion had taken place on the motion. However, the said contention is misconceived. If the provisions contained in subsection (3) of Section 56 of the Act is carefully examined, it is revealed that the Sarpanch against whom the Motion of No Confidence is moved, has a right to speak or otherwise to take part in the proceedings of such meeting including the right to vote. It is not in dispute that petitioner participated in the meeting and exercised his right to vote. Thus, we are of the view that learned Single Judge has not committed any error while not accepting the said contention raised by the learned advocate for the petitioner.Page 12 of 16 Downloaded on : Sat Oct 05 22:18:07 IST 2019 C/SCA/15905/2019 ORDER
11. Learned Single Judge has also placed reliance upon the order dated 11.07.2018 passed by this Court in Special Civil Application No.8204 of 2018 in the case of Bharatbhai Ravjibhai Vadi v. State of Gujarat, wherein this Court has held in para 9 as under:
"9. From the bare reading of the said provisions, it transpires that the Sarpanch against whom the motion of no confidence is moved, cannot preside over the meeting, but he has right to speak or otherwise to take part in the proceedings of such meeting, including the right to vote. Hence, the Sarpanch against whom the motion is moved could exercise his right to speak before the motion is passed or otherwise he could take part in the proceedings, including to exercise his right to vote. There is no right conferred on him to invite him to speak. It could never be the proposition that until he exercises his right to speak, motion could not be passed. It would be his choice or discretion whether to exercise his right to speak and raise objection against the motion, or otherwise to participate in the proceedings."
12. In the case of Geetaben Bharatbhai Patel (supra), notice of no confidence was moved against the concerned Sarpanch and meeting was thereafter convened at the office of the Gram Panchayat, wherein 17 members of the Panchayat remained present. It is the case of the petitioner in the said case that during the meeting, without affording an opportunity to the petitioner to speak at the meeting, the Chairman of the meeting asked the members to indicate Page 13 of 16 Downloaded on : Sat Oct 05 22:18:07 IST 2019 C/SCA/15905/2019 ORDER their votes by raising their hands. The petitioner in the said case opposed the procedure and sought permission to speak at the meeting. However, she was denied the opportunity to address the members and thereafter voting took place wherein 14 members cast their vote in favour of no confidence motion and 2 members voted against the motion.
12.1. Whereas, in the present case, it is not in dispute that petitioner has never objected to the procedure followed in the meeting and did not make any request to speak at the said meeting. On the contrary, petitioner participated in the meeting without raising any objection and voted in his favour. Thus, this decision would not render any assistance to the petitioner."
16. Thus, when the Division Bench of this Court, after taking into consideration the decision rendered in the case of Geetaben Bharatbhai Patel (supra) as well as Bharatbhai Ravjibhai Vadi (supra), has not entertained the appeal filed against the order dated 23.08.2018 passed by the learned Single Judge in Special Civil Application No.8059 of 2018, there is no reason for me to take a different view. The decision rendered by the Division Bench of this Court in the aforesaid case is binding. At this stage it is required to be noted that learned advocate Mr. Mangukiya for the petitioner has contended that it was not proper on the part of the learned Single Judge to take a different view in the case of Page 14 of 16 Downloaded on : Sat Oct 05 22:18:07 IST 2019 C/SCA/15905/2019 ORDER Parshottambhai Talsibhai Chhaniyara (supra) once there is a binding decision given by another learned Single Judge of this Court in the case of Geetaben Bharatbhai Patel (supra). It is also contended by him that the Division Bench could not have confirmed the order dated 23.08.2018 passed by the learned Single Judge in the case of Parshottambhai Talsibhai Chhaniyara (supra) in Letters Patent Appeal No.1135 of 2018. However, the said submissions are misconceived. It is required to be noted that the order dated 31.08.2018 passed by the Division Bench in Letters Patent Appeal No.1135 of 2018 has attained finality and therefore the said decision rendered by the Division Bench is binding to this Court.
17. This Court cannot dispute the proposition laid down by the Hon'ble Supreme Court in the case of A.R.Antulay (supra) as well as in the case of Siddharam Satlingappa Mhetra (supra). However, the aforesaid decisions would not render any assistance to the petitioner in the facts of the present case as discussed hereinabove.
18. Even otherwise, in the facts of the present case as observed hereinabove, petitioner was allowed to produce the copy of the whip given by the Gujarat Pradesh Congress Samiti. The Page 15 of 16 Downloaded on : Sat Oct 05 22:18:07 IST 2019 C/SCA/15905/2019 ORDER petitioner addressed a letter dated 13.09.2019 and pointed out about the aforesaid whip given by the concerned political party. It is not in dispute that the said whip was produced in the meeting and it was read before the members of the Panchayat in the said meeting and thereafter meeting was commenced in which the petitioner has not made any request that she may be permitted to address the members. In fact whip produced by the petitioner was read in the meeting. As stated hereinabove, petitioner was permitted to cast her vote. Out of 36 members including the President, 30 members have given their votes in favour of motion of no confidence, whereas only 6 members have voted against the said motion.
19. Thus, in view of the aforesaid facts and circumstances of the present case, this Court is not inclined to entertain the present petition. Petition is, accordingly, dismissed. Notice discharged.
(VIPUL M. PANCHOLI, J) Jani Page 16 of 16 Downloaded on : Sat Oct 05 22:18:07 IST 2019