Gujarat High Court
Parshottambhai Talsibhai Chhaniyara vs Taluka Vikas Adhikari Taluka Panchayat ... on 23 August, 2018
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/SCA/8059/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8059 of 2018
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PARSHOTTAMBHAI TALSIBHAI CHHANIYARA
Versus
TALUKA VIKAS ADHIKARI TALUKA PANCHAYAT MANDAL
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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
MS. ARCHANA PATEL, ADVOCATE FOR MR JAGDHISH SATAPARA(5524)
for the RESPONDENT(s) No. 3,4,5,6,7,8
MS RV ACHARYA(1124) for the RESPONDENT(s) No. 2
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 9
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CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI
Date : 23/08/2018
ORAL ORDER
1. The petitioner, who happened to be the Sarpanch of Nana-Ubhada Gram Panchayat, Taluka Mandal has challenged the impugned order dated 02.05.2018 issued by the Taluka Development Officer, Taluka Panchayat, Mandal (Annexure C'), and consequently, the impugned resolution passed on 08.05.2018 (Annexure 'D') removing the petitioner as the Sarpanch of the said Gram Panchayat.
2. As per the case of the petitioner, the petitioner was elected as the Sarpanch by the voters of the village Nana-Ubhada, Taluka Mandal. Some of the elected members of the said Panchayat vide the letter dated 02.04.2018 Page 1 of 7 C/SCA/8059/2018 ORDER addressed to Taluka Development Officer submitted a notice of no-confidence against the petitioner for the reasons stated therein. It appears that the Taluka Development Officer had called for the report from the Talati-cum-Mantri for the verification of the signatures made by the members on the said letter dated 02.04.2018, and on receiving the report from the Talati-cum- Mantri, had called for the meeting on 08.05.2018 for moving the motion under Section 56 of the Gujarat Panchayats Act, 1993 (hereinafter referred to 'the said Act'). Accordingly, the meeting was called on 08.05.2018, and out of the eight members who remained present in the meeting, six members voted for the motion, and two members including the petitioner voted against the motion. Hence, the resolution to remove the petitioner was passed by majority of members present. The petitioner has challenged the said resolution by way of the present petition.
3. It is sought to be submitted by the learned advocate Mr. P.S. Champaneri for the petitioner pressing into service the provisions contained in the Section 56 of the said Act that motion of no confidence is required to be moved to the panchayat concerned, and if the Sarpanch fails to call for the meeting, the Secretary of the Panchayat has to make a report to the competent authority, and thereafter, the competent Page 2 of 7 C/SCA/8059/2018 ORDER authority can call for the meeting within 15 days from the date of receipt of such report. However, in the instant case, the notice was not moved to the Panchayat, and straightway it was addressed to the Taluka Development Officer as per Annexure 'B'. According to Mr. Champaneri, the Taluka Development Officer also called for the meeting on 08.05.2018 without following the procedure as contained in Section 56(5)(b) of the said Act. He further submitted that at the time of meeting also, no debate or discussion on the motion in question took place, and straightway the proceedings for voting had started. Therefore, there being violation of provisions contained in Section 56(3) of the said Act, the impugned resolution deserves to be quashed and set aside.
4. The learned advocate Mr. H.S. Munshaw appearing for the respondent No. 1, however submitted that the letter dated 02.04.2018 signed by six members of the Panchayat, was addressed to Taluka Development Officer, however, copy thereof was sent to the Talati- cum-Mantri at the office of the Panchayat. The Taluka Development Officer more than fifteen days after getting the report from the Talati- cum-Mantri as regards the signatures of the members who had signed the said letter, had called for the meeting on 08.05.2018 on the agenda of no confidence against the petitioner.
Page 3 of 7 C/SCA/8059/2018 ORDERHe also submitted that at no point of time, the petitioner had raised any objection either against the holding of the meeting or during the course of the meeting on 08.05.2018 as transpiring from the proceedings of the meeting, and on the contrary had participated in the said meeting. Hence, it could not be said that there was violation of any provisions of Section 56 of the said Act.
5. Having regard to the submissions made by the learned advocates for the parties, and to the documents on record, more particularly, from the impugned resolution, it appears that the petitioner had remained present in the meeting held on 08.05.2018, and had also participated in the meeting by raising his hand for the purpose of voting. At this juncture, it is pertinent to note that as per Section 56(3) of the said Act, the Sarpanch against whom the motion is moved, has right to speak or otherwise take part in the proceedings of such meeting including the right to vote. In the instant case, the petitioner had participated in the proceedings held on 08.05.2018, and had also voted in his own favour. It is pertinent to note that the petitioner had not raised any objection against holding of the meeting or regarding not following any procedure under Section 56 of the said Act. When he had exercised his right to vote as contemplated in Section 56(3), it does Page 4 of 7 C/SCA/8059/2018 ORDER not lie in the mouth of the petitioner to say that there was violation of provisions contained in Section 56(3) of the said Act. The Court does not find any substance in the submission of Mr. Champaneri that the petitioner's right to speak was violated as no discussion had taken place on the motion. In the opinion of the Court, if the petitioner had not exercised his right to speak and on the contrary participated in the proceedings by exercising his right to vote, it could not be said that his right to speak was violated. The contents of the proceedings of the meeting are also not disputed by the petitioner. Recently this Court in the decision of Bharatbhai Ravjibhai Vadi Versus State of Gujarat passed in Special Civil Application No. 8204 of 2018, dated 11.07.2018 while interpreting Section 56, has held 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 Page 5 of 7 C/SCA/8059/2018 ORDER objection against the motion, or otherwise to participate in the proceedings."
6. The Court also does not find any substance in the submission of Mr. Champaneri learned advocate for the petitioner that the procedure as contained in Section 56(5) was not strictly followed by the respondent No. 1 before calling for the meeting on 08.05.2018. As transpiring from the record, the letter dated 02.04.2018 moving no-confidence motion against the petitioner, was signed by six members and the same was addressed to the respondent No. 1 - Taluka Development Officer. The copy thereof was sent to Talati-cum-Mantri, at the Office of Gram Panchayat Nana-Ubhada. One month thereafter, the respondent No. 1 - Taluka Development Officer on receiving the report from the Talati-cum-Mantri as regards the verification of the signatures of the concerned members, had convened the meeting on 08.05.2018 for the agenda of 'no confidence' against the petitioner as Sarpanch. It is not disputed that the said agenda was received by the petitioner, however, he did not object against convening the meeting on 08.05.2018, on the contrary, as stated hereinabove, the petitioner had participated in the said meeting, and also exercised his right to vote. Under the circumstances, it could not be said that the provisions contained in Section 56 of the said Page 6 of 7 C/SCA/8059/2018 ORDER Act were not complied with.
7. In that view of the matter, the petition being devoid of merits, is dismissed. Notice is discharged. Interim relief granted earlier shall stand vacated forthwith.
8. The request of Mr. Champaneri, learned advocate for the petitioner to continue the interim relief is rejected for the reasons stated herein above.
(BELA M. TRIVEDI, J) AMAR SINGH Page 7 of 7