Gujarat High Court
Hitendrasih Pravinsinh Zala vs Taluka Vikas Adhikari on 30 November, 2021
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/13087/2019 CAV JUDGMENT DATED: 30/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13087 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copyNO
of the judgment ?
4 Whether this case involves a substantial questionNO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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HITENDRASIH PRAVINSINH ZALA
Versus
TALUKA VIKAS ADHIKARI
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Appearance:
MR PS CHAMPANERI(214) for the Petitioner(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 1,3
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2,4,5
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 30/11/2021
CAV JUDGMENT
1 Rule returnable forthwith. With the consent of the learned advocate for the respective parties, the matter is taken up for final hearing today. In this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:
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C/SCA/13087/2019 CAV JUDGMENT DATED: 30/11/2021 "13(A) This Hon'ble Court may be pleased to issue appropriate writ order or direction in the nature of mandamus or any other appropriate writ order or direction and be pleased to order to quash and set aside the impugned resolution, Annexure-D, dated 26.07.2019 by declaring the same as illegal, null and void."
2 Facts in brief are as under:
2.1 The petitioner was an elected Sarpanch of Chuda Gram Panchayat.
Chuda Gram Panchayat consisted of 19 elected members. It is the case of the petitioner that 10 elected members moved a Motion of No Confidence against the petitioner on 03.07.2019. The Motion of No Confidence was put to vote and in the aforesaid meeting 13 members voted in favour of the No Confidence Motion whereas 06 voted against motion. 2.2 The Motion of No Confidence was passed as prescribed under Section 56 by 2/3rd majority, and therefore, the petitioner was removed by virtue of the No Confidence Motion and that is the subject matter of challenge in this petition under Article 226 of the Constitution of India. 3 Mr.Pankaj Champaneri, learned advocate for the petitioner, has made the following submissions:
3.1 Mr.Champaneri, learned advocate, would assail the resolution of No Confidence passed by the Panchayat on the ground that in accordance with Section 56(3) of the Gujarat Panchayats' Act, the petitioner was not offerred the right to speak as envisaged under Sub section 3 of Section 56 Page 2 of 17 Downloaded on : Wed Jan 12 05:45:40 IST 2022 C/SCA/13087/2019 CAV JUDGMENT DATED: 30/11/2021 of the Act.
3.2 Mr.Champaneri, learned advocate, would further submit that since Sub-section 3 begins with "Notwithstanding", it is an additional procedure which has to be followed in addition to the proceeding of Section 56 of the Act. He would rely on the rules, namely, The Gujarat Panchayat Procedure Rules, 1997, and submit that while reading the proceedings in question (page 24) what has been followed is the ordinary procedure and the procedure itself suggests that the ordinary procedure has been followed.
3.3 Further, the resolution has been passed directly without following the Special Procedure envisaged under Sub-section 3 of Section 56 of the Act which is a mandatory provision and merely because an affidavit-in-
reply states that he did not ask for an opportunity to speak would not satisfy the compliance of "Right to Speak" as this is mandatory procedure of which there has to be compliance.
3.4 Mr.Pankaj Champaneri, learned advocate, relied on the decisions of this Court in the case of Geetaben Bharatbhai Patel vs. State of Gujarat, reported in 2006 (1) GLH 91. He also relied on a decision in the case of Suvarnaben Chetanbhai Raval vs. State of Gujarat, reported in 2014 (3) GLR 4277., to submit that the Right to Speak is a mandatory provision, and therefore, when the petitioner was not given the Right to Speak, the Motion of No Confidence must be set aside. Page 3 of 17 Downloaded on : Wed Jan 12 05:45:40 IST 2022
C/SCA/13087/2019 CAV JUDGMENT DATED: 30/11/2021 4 Mr.Munshaw, learned counsel appearing for respondents Nos. 1 to 3 would submit that the contention of Mr.Champaneri, that the mandatory provision of Right to Speak under Section 56(3) of the Act has been violated is misconceived. Relying on the Minutes of the Meeting and the affidavit-in-reply filed, Mr.Munshaw, learned advocate, would submit that during the process of the meeting when No Confidence Motion was put to vote, 13 members have supported the same while the petitioner and 05 other members voted against it.
4.1 Mr.Munshaw, learned advocate, would submit that the petitioner did not ask for an opportunity to address the House. The proceedings of the meeting are videographed and it is available. Copy of the Minutes of the Meeting are annexed to the affidavit-in-reply and therefore, he would submit that the statutory mandate of Section 56(3) was not violated. 4.2 Mr.H.S.Munshaw, learned counsel for the respondent, relied on the decision of the Division Bench in the case of Parshottambhai Talsibhai Chhaniyara rendered in Letters Patent Appeal No. 1135 of 2018 to submit that once an opportunity was given and when the petitioner did not take that opportunity or did not ask for the opportunity, the provision was not violated.
5 Having considred the submissions made by the learned counsels Page 4 of 17 Downloaded on : Wed Jan 12 05:45:40 IST 2022 C/SCA/13087/2019 CAV JUDGMENT DATED: 30/11/2021 appearing for the respective parties, reference to the judgment in the case of Geetaben Bharatbhai Patel (supra) would indicate that while considering the provisions of Section 56(3) r/w the Rules, namely, The Gujarat Panchayats Procedure Rules, the case of the question of legal implication of a sitting Sarpanch being denied an opportunity to speak, after reproducing the legal provisions of the statutory provisions, the Court opined that it is provided that the Sarpanch, Upa-Sarpanch who faces Motion of No Confidence shall not preside over the meeting, but he shall have the Right to Speak or otherwise take part in the proceedings. The Right to Speak or take part in the proceedings is a statutorily vested right and it is mandatory. The Court, further, held that Section 56(3) of the Act does not only preserve this right but highlights the aspect that the Sarpanch who faces the No Confidence Motion, though does not preside over such a meeting, shall have a Right to Speak and right to address or otherwise take part in the proceedings because it is his reputation that is at stake and when such a right is denied it causes prejudice. Paragraphs 9,14 and 15 of the said judgment read as under:
"9 Reverting to the question of legal impliction of the petitioner being denied the opportunity of addressing the meeting which was held on 3rd November, 2003, it would be necessary to note some of the statutory provisions relevant for the above purpose.
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14. Based on the above judicial pronouncements, it is necessary to Page 5 of 17 Downloaded on : Wed Jan 12 05:45:40 IST 2022 C/SCA/13087/2019 CAV JUDGMENT DATED: 30/11/2021 examine whether the provisions of Section 56(3) of the said Act which provide 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 Up-Sarpanch 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 Sshall have a right to speak or otherwise to take part in the proceedings of such a meeting have Page 84 been used by the Legislature advisedly and unless it is found from the attending provisions of the 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 Upa-Sarpanch 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 Up-Sarpanch 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, Up-Sarpanch 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, Up-Sarpanch, through his persuasive power or logical arguments may be able to prevail Page 6 of 17 Downloaded on : Wed Jan 12 05:45:40 IST 2022 C/SCA/13087/2019 CAV JUDGMENT DATED: 30/11/2021 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, Up-Srapanch an 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 two-third 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."
5.1 Following the aforesaid decision, in the case of Suvarnaben Chetanbhai Raval (supra), the Court reiterated the provisions of the Act and based on the reply filed by the concerned respondent wherein it was stated that the petitioner was conferred an opportunity to address the house, the Court observed that when a right accrues to the petitioner by law, such right would not get eroded merely on the ground that the petitioner did not demand an opportunity to speak. Para 13,14,15 & 16 of the said decision read as under:
"13 Letters Patent Appeal No. 1677 of 2005 was filed against the above mentioned judgment but was dismissed by the Division Bench, vide order dated 8-12-2005. The principles of law Page 7 of 17 Downloaded on : Wed Jan 12 05:45:40 IST 2022 C/SCA/13087/2019 CAV JUDGMENT DATED: 30/11/2021 enunciated in the above judgment have, therefore, attained finality. The provisions of Sec.56 (3) of the Act are mandatory in nature and ot merely directory. It was, therefore, incumbent upon respondent Nos. 2 and 3 to have granted an opportunity of addressing the House to the petitioner, before the passing of the no-confidence motion against her. It may be true that the petitioner herself may not have demanded an opportunity of speaking. However, when a right accrues to the petitioner by law, by way of Sec. 56(3) of the Act, such right would ot get eroded merely on the ground that the petitioner did not demand an opportunity of hearing. Respondent Nos. 2 and 3 are responsible authorities, whose duty iit is to enforce the provisions of law and follow the judgments of this Court in letter and spirit. By not granting the petitioner an opportunity of addressing the house during the meeting dated 4-9-2014, respondent Nos. 2 and 3 have failed to discharge the duties enjoined upon them by the statute, thereby, causing grave prejudice and injustice to the petitioner.
14 It has now come to light from the further affidavits filed on behalf of respondent Nos.2 and 3 respectively that, in fact, the petitioner was not granted an opportunity of adddressing the house before the no-confidence motion was passed against her. As per the statements made in the further affidavits, this position is clear from the compact disc of the videographed proceedings, as admitted by the said respondents, themselves.
15 It, therefore, transpires that respondent No.3-Talati-cum- Mantri, has made a false statement on oath before this Court in the affidavit-in-reply filed by him, affirmed on 7-10-2014, to the effect that the petitioner was granted an opportunity of speaking but did not avail of it. The same respondent has now admitted in the further affidavit that the petitioner was not granted an opportunity of hearing at all. The compact disc of the videographed proceedings was available with respondent No.3 even when the first affidavit was filed. In spite of this, a false statement was made before this Court in the said affidavit. Though, an unconditional apoloty has been offered by respondent No.3, it is clear that respondent No.3, being the Talati-cum-Mantri and the person who has recorded the entire proceedings of the meeting dated 4-9-2014, was very much aware that no opportunity of hearing had been granted to the petitioner. The written proceedings recorded by him also do not state that any opportunity of hearing was granted to the petitioner. However, for reasons best Page 8 of 17 Downloaded on : Wed Jan 12 05:45:40 IST 2022 C/SCA/13087/2019 CAV JUDGMENT DATED: 30/11/2021 known to himself, respondent no. 3 has made a false statement on oath before this Court in the affidavit-in-reply affirmed on 7-10- 2014. Later on, having developed cold feet, resondent No.3 has now come out with an unconditional apology. In the view of this Court, an apology cannot compensate for deliberately misleading the Court and depriving the petitioner of her just legal rights.
16 This Court does not appreciate conduct such as that displayed by respondent No.3, in making a false statement on oath before the Court. This conduct of respondent No.3 reveals a reckless, careless and casual attitude towards the legal rights of a democratically elected representative, on the part of a Talati-cum- Mantri, who is duty bound to record all the proceedings of the said Panchayat correctly and meticulously. Apart from this, the conduct of respondent no.3 displays a tendency to play fast and loose with the Court. Hence, appropriate costs deserves to be imposed on resondent no.3."
5.2 Mr.Munshaw, learned advocate, has relied on a recent decision of the Division Bench in the case of Laljibhai Ramjibhai Makwana vs. The District Development Officer, rendered in Letters Patent Appeal No. 930 of 2021 on 27.10.2021.
5.3 It is in the fitness of things to reproduce Section 56(3) thereof:
"56(3) Notwithstanding, anything contained in this Act, or the rules made thereunder a Sarpanch or, as the case may be, an Upa- Sarpanch, 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)."
5.4 When the facts on hand are appreciated and the Motion of No Confidence that has been passed is read, the resolution when translated reads as under:
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C/SCA/13087/2019 CAV JUDGMENT DATED: 30/11/2021
(i) Regarding the Motion of No Confidence against Shri Hitendrasinh Pravinsinh Zala, Sarpanch, it is hereby resolved that a member of the Gram Panchayat, namely, Kripalsinh Abhesangbhai Parmar and other team members i.e. 11 members have moved a Motion of No Confidence on 03.07.2019. The resolution is discussed. The members have voted for and against resolution. 13 members have voted for the resolution and 6 have voted against. The resolution is put to vote and is passed. The meeting concludes and the Motion of No Confidence is passed.
(ii) The affidavit-in-reply filed by the Talati-cum-Mantri of the Chuda Gram Panchayat, particularly para 7 thereof reads as under:
"7 The respnt. no.3 submits that during the process of meeting a no confidence motion moved against petitioner was put to vote and in all 13 members supported the same while petitioner and 5 other members voted against it. It is submitted that the petitioner did not ask for an opportunity to address the house. It is stated that proceedings of the meeting are videographed and compact disk is available in the office of the Gram Panchayat."
(iii) It is in this context that the decisions cited by the learned advocates for the respective parties needs to be analyzed.
5.5 In the case of Geetaben Bharatbhai Patel (supra), the Court, while considering the legal implications of the provisions of the Section 56(3) of the Act, categorically held that the Right to Speak or otherwise to take part in the proceedings during such a meeting is a statutorily vested right in favour of the Sarpanch. As per the scheme of the Act, it is necessary to decide whether the said provision is mandatory or otherwise. Page 10 of 17 Downloaded on : Wed Jan 12 05:45:40 IST 2022 C/SCA/13087/2019 CAV JUDGMENT DATED: 30/11/2021 Considering the various decisions of the Supreme Court, the Court opined that the provision was mandatory. The Court, particularly, held that not only it is mandatory, but all consequential steps such as Voting of No Confidence and its adoption by the meeting would be renderred nonest and effective when it was in the facts of the case concluded that the petitioner was not given an opportunity to speak at the meeting or in any manner participated except to vote. That has been followed in the case of Suvarnaben Chetanbhai Raval (supra). As far as the decision in the case of Parshottambhai Talsibhai Chhaniyara (supra) relied upon by learned counsel Mr.Munshaw is concerned, the facts therein would indicate that the petitioner did not raise any objection against the holding of the meeting and on the contrary participated in the meeting and then belatedly objected to not being given the Right to Speak. From the record it emerges that the letter was submitted by the Panchayat on 02.04.2018 which was also sent to the Taluka-cum-Mantri wherein it was stated that they are moving a Motion of No Confidence. Thereafter, the Taluka Development Officer requested the Talati Cum Mantri to verify the signatures of the persons who have signed the letter. In pursuance of the said communication, the Talati-Cum-Mantri verified the signatures and it was not in dispute that between the period of 02.04.2018 to 08.05.2018, the petitioner did not raise any objection and on the contrary participated in the meeting. It was not disputed that the petitioner participated in the Page 11 of 17 Downloaded on : Wed Jan 12 05:45:40 IST 2022 C/SCA/13087/2019 CAV JUDGMENT DATED: 30/11/2021 meeting and exercised his right to vote. The Division Bench relying on an order of the learned Single Judge dated 11.06.2018 passed in Special Civil Application No. 8204 of 2018 in the case of Bharatbhai Ravjibhai Vadi vs. State of Gujarat, observed that there is no right conferred to invite him to speak. It can never be the proposition that until the Sarpanch exercises his Right to Speak the motion cannot be passed. It is his choice or discretion whether to exercise his right to speak or raise objection against the motion or otherwise to participate in the meeting or proceedings. Paras 11 to 14 of the decision in the case of Parshottambhai Talsibhai Chhaniyara renderred in Letters Patent Appeal No. 1135 of 2018 read as under:
"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, can not 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 Page 12 of 17 Downloaded on : Wed Jan 12 05:45:40 IST 2022 C/SCA/13087/2019 CAV JUDGMENT DATED: 30/11/2021 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 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.
13. Even the decision in the case of Thakore Bhalusangji Mansangji (supra) upon which reliance is placed by the learned advocate for the petitioner would not be helpful to the applicant in the facts of the present case.
14. In view of the aforesaid discussion and in view of the reasonings recorded by the learned Single Judge, we are of the view that learned Single Judge has not committed any error which requires any interference in present appeal. Accordingly, appeal is dismissed. Consequently, civil application stands disposed of." 5.6 Even in the recent decision renderred by the Division Bench in the case of Laljibhai Makwana (supra), the Division Bench observed that there was due compliance of the provisions of Sub-section 3 of section 56 when it was observed on the basis of affidavit that the petitioner Sarpanch was present at the meeting throughout, even opposed the Motion of No Confidence against him and made no attempt to address the meeting. It is on this basis that the Panchayat held that there was no denial of Page 13 of 17 Downloaded on : Wed Jan 12 05:45:40 IST 2022 C/SCA/13087/2019 CAV JUDGMENT DATED: 30/11/2021 opportunity to speak at the said meeting.
6 In the facts of the present case, what is evident from the perusal of the Minutes of the Meeting of No Confidence and the affidavit-in-reply filed by the Talati-cum-Mantri together with the Minutes and the Report of the Talati-cum-Mantri, is that the meeting proceeded and the Motion of No Confidence was passed. Emphatically what is evident from the affidavit-in-reply is that it is the case of the respondents that "It is submitted that the petitioner did not ask for an opportunity to address the house."
6.1 Reading decision in the case of Laljibhai Ramjibhai Makwana vs. District Development Officer, the following paragraph need to be reproduced:
"11. At the cost of burdening this judgment, it requires to be noticed that learned Single Judge has noted and extracted the statement made by Talati-cum-Mantri who was respondent No.3 and who had filed an affidavit in Special Civil Application reiterating that there was due compliance of sub-section (3) of Section 56 whereunder 3rd respondent before learned Single Judge has categorically contended and stated that agenda of the meeting convened for the purposes of moving No Confidence Motion against the petitioner was served upon all members including petitioner and Upa-Sarpanch of the Gram Panchayat presided over the meeting and after discussion, No Confidence Motion moved against the petitioner was put to vote. It is also noticed by learned Single Judge that affidavit of 3rd respondent at para 10 disclosed that petitioner was present at the meeting throughout, had even opposed the No Confidence Motion moved against him and had not even made an attempt to address at the meeting. In other words, there was no denial of opportunity to the Page 14 of 17 Downloaded on : Wed Jan 12 05:45:40 IST 2022 C/SCA/13087/2019 CAV JUDGMENT DATED: 30/11/2021 petitioner to speak at the said meeting. At this juncture, if the language employed in sub-section (3) of Section 56 is perused, it would clearly indicate that person against whom No Confidence Motion is moved, "shall have a right to speak or otherwise to take part in the proceedings of such a meeting (including the right to vote)". The principle underlying behind this provision is to ensure that such person would be able to persuade or convince the members as to why said Motion of No Confidence should be dropped or in other words, it should not be carried forward. In a given case, if a person against whom No Confidence Motion is moved were to sit at the said meeting does not speak at the said meeting or participates in the meeting without any demur or objection and allows the No Confidence Motion to be moved against him, cannot turn around and contend that there is a duty cast on the part of the person who presided over the meeting to call upon such person to speak even if he is not willing and record such fact in the minutes of the meeting. This argument would only be stretching the logic to an illogical end or in other words, adding something to the Statute which is not there. Hence, we are of the considered view that we are in complete agreement with the judgment of the learned Single Judge rendered in Special Civil Application No.8204 of 2018 in the matter of Bharatbhai Ravjibhai Vadi Vs. State of Gujarat on 11-7-2018 whereunder it has been held that there is no right conferred on a person against whom No Confidence Motion is moved, to invite him to speak. Right to speak is inherent as provided in sub-section (3) of Section 56 and it would also be the choice or discretion of such person to exercise his right to speak and object to the Motion of No Confidence or otherwise participate in the proceedings without even objecting and such person would also be certified to remain silent or would be certified not to speak against the Motion of No Confidence.
Right to remain silent is also inherent and it cannot be gainsaid that there is a statutory obligation on the part of the person presiding over the meeting to call upon such person to speak and record in the minutes of the meeting of such opportunity having been extended dehors the fact that the person having not sought for such opportunity being extended to speak at the meeting." 6.2 Even in the case of Laljibhai Makwana (supra) and in the case of Parshottambhai Talsibhai Chhaniyara (supra), it is evident that the Division Bench observed that the Sarpanch against whom the motion is Page 15 of 17 Downloaded on : Wed Jan 12 05:45:40 IST 2022 C/SCA/13087/2019 CAV JUDGMENT DATED: 30/11/2021 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, therefore, 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 motion.
6.3 From the Division Bench decision of this Court in the case of Laljibhai Ramjibhai Makwana (supra), what is evident is that if the Sarpanch does not even oppose the No Confidence Motion, or does not even attempt to address the meeting, it cannot be said that there is a denial of opportunity to speak at the said meeting. 7 In a given case, if a person against whom No Confidence Motion is moved were to sit at the said meeting, does not speak at the meeting and participates without any demur cannot turn around and contend that it is the duty cast on the part of the person who presides over the meeting to call upon such person to speak.
8 In the facts of the case, when the proceedings of the meeting are looked at and so is the affidavit-in-reply, it is evident that the petitioner Page 16 of 17 Downloaded on : Wed Jan 12 05:45:40 IST 2022 C/SCA/13087/2019 CAV JUDGMENT DATED: 30/11/2021 did not ask for an opportunity to address the house. Accordingly, there is no violation of the mandate and on the facts of the case, the decisions in the case of Geetaben(supra) and Suvarnaben (supra) shall not be applicable. The petition is dismissed, accordingly. Rule is discharged with no order as to costs.
(BIREN VAISHNAV, J) Bimal Page 17 of 17 Downloaded on : Wed Jan 12 05:45:40 IST 2022