Gujarat High Court
Laljibhai Ramjibhai Makwana vs District Development Officer District ... on 29 September, 2021
Author: Ashutosh J. Shastri
Bench: Ashutosh J. Shastri
C/SCA/8520/2021 JUDGMENT DATED: 29/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8520 of 2021
With
CIVIL APPLICATION (FOR ORDERS) NO. 1 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 8520 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI Sd/-
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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LALJIBHAI RAMJIBHAI MAKWANA
Versus
DISTRICT DEVELOPMENT OFFICER DISTRICT SURENDRANAGAR
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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. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 29/09/2021
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate Mr. H.S. Munshaw waives service of Rule on behalf of the respondents.
Page 1 of 22 Downloaded on : Sun Jan 16 19:33:07 IST 2022C/SCA/8520/2021 JUDGMENT DATED: 29/09/2021
2. By way of the present petition, filed under Article 226 of the Constitution of India, a challenge is made to the resolution dated 05.05.2021 passed in the meeting of Gram Panchayat, Sejakpur, whereby No Confidence Motion is passed against the petitioner.
3. The case of the petitioner is that, in election of Gram Panchayat, Sejakpur, held in December, 2016, the petitioner contested on a seat reserved for Scheduled Caste, and was declared as a Sarpanch of Gram Panchayat. The term of the petitioner would get over in the year 2021. The petitioner is affiliated with the Bhartiya Janta Party. The total strength of the Gram Panchayat is 9 members including the Sarpanch.
4. The petitioner states that six members of the Gram Panchayat moved a motion of No Confidence against the petitioner on 26.08.2019, and in turn, the Taluka Development Officer forwarded a communication on 16.09.2019 intimating the petitioner and other members of the Gram Panchayat that meeting of the Gram Panchayat is convened on 20.09.2019 for the purpose of considering motion of No Confidence against the petitioner. It is the case of the petitioner that the said No Confidence Motion was moved and came to be passed precisely on the circumstances that members of the Gram Panchayat were not satisfied with the working of the petitioner as a Sarpanch, though several welfare works were done by the petitioner in village Sejakpur.
Page 2 of 22 Downloaded on : Sun Jan 16 19:33:07 IST 2022C/SCA/8520/2021 JUDGMENT DATED: 29/09/2021 The members without appreciating such work of the petitioner were pleased to pass a No Confidence Motion against the petitioner. Not only that there was no issue related to the construction of concrete cement road from Dalitvaas towards the eastern gate of village Sejakpur, But according to the petitioner, one Jayshreeben Dineshkumar Patel wanted a land ad-measuring 300 sq. mtrs. for constructing a stable. It was discussed in the meeting on 2nd July, 2019 of the Gram Panchayat, wherein seven members agreed to grant the said piece of land to Jayshreeben Dineshkumar Patel and passed resolution No. 4 in which the petitioner voted against granting of the said piece of land.
5. It is the case of the petitioner that No Confidence Motion was moved against the petitioner, by an application on 30.08.2019 to the Deputy Collector and Prant Officer, Limbdi stating that since the petitioner hails from the Scheduled Caste community and has contested the election on the said reserved seat and was elected by majority of the members as a Sarpanch. Certain members were not favouring. It has been further pointed out that right from the year 1960 till the election of the petitioner, after almost a period of 70 years, the seat came to be reserved for Scheduled Caste. The members of the Panchayat belonging to the General Caste, have not taken the election and posting of the petitioner as a Sarpanch in a right spirit, and from day one, under one pretext or other, many attempts were Page 3 of 22 Downloaded on : Sun Jan 16 19:33:07 IST 2022 C/SCA/8520/2021 JUDGMENT DATED: 29/09/2021 made to see that somehow the petitioner can be placed into embarrassment. By way of intimation of Deputy Collector, the details regarding every circumstances was explained by the petitioner, but somehow, the members of the Panchayat have passed No Confidence Motion. According to the petitioner, one Mr. Kalubhai Bhimabhai, Up-Sarpanch had pressurized the petitioner so as to see that one Mr. Govindbhai Kanjibhai Patel gets the land for the purpose of construction of a stable. This tactics of pressure applied by various members were not attained any fruitful result. The petitioner was tried to be made scapegoat and as such by raising multiple contentions, the petitioner constrained to challenge the legality and validity of the impugned action of No Confidence against the petitioner. The case is also tried to be put up that while carrying out such process against the petitioner, relevant statutory provisions which are prescribed under the provision of the Gujarat Panchayats Act (hereinafter referred to as 'the Act') have not been adhere to, and there are several decisions delivered by the High Court, whereby unceremoniously, elected representative cannot be ousted from the position, and with this background, the petitioner has preferred present petition for assailing the action of No Confidence.
6. The petition appears to have been entertained by issuance of notice by a detailed order on 22.06.2021 and taking note of contentions and following order was passed at the first instance, which reads as under : -
Page 4 of 22 Downloaded on : Sun Jan 16 19:33:07 IST 2022C/SCA/8520/2021 JUDGMENT DATED: 29/09/2021 "Mr.B.M.Mangukiya, learned advocate for the petitioner submitted that the Resolution dated 5.5.2021, has been passed recording motion of no confidence against the present petitioner. It is submitted that when in the meeting, the decision of motion of no confidence is discussed against the Sarpanch, the Sarpanch has a right to speak or otherwise take part in the proceedings of the no confidence motion, including the right to vote. It is submitted that a bare perusal of the minutes of the meeting dated 5.5.2021, clearly suggests that no opportunity was given to the petitioner to speak.
2. It is submitted that in the case of Geetaben Bharatbhai Patel v. State of Gujarat, reported in 2006 (1) GLH 91, it has been held that 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. It has been further held that 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 under the provisions of Section 56(3) of the Gujarat Panchayats Act, 1993 a Sarpanch or, as the case may be, Up-Sarpanch who is facing such a no-confidence motion shall have a right to speak. This Court, has held such a requirement as mandatory. Reliance is also placed on the judgment in the case of Suvarnaben Chetanbhai Raval v. State of Gujarat, rendered in Special Civil Application No.13685 of 2014. It is submitted that the Resolution, is passed against the requirement of law.
3. Considered the submissions. Issue Notice, returnable on 6.7.2021. Direct service is permitted. "
7. The present petition then come up for consideration Page 5 of 22 Downloaded on : Sun Jan 16 19:33:07 IST 2022 C/SCA/8520/2021 JUDGMENT DATED: 29/09/2021 before this Court, in which the learned advocate Mr. Mangukiya appearing on behalf of the petitioner has vehemently contended that No Confidence Motion which has been passed against the petitioner, is not sustainable in the eye of law on account of multiple reasons. Firstly - that statutory procedure contained in the Statute, has not been observed in the right spirit, secondly - there was no justifiable reason to initiate the process of No Confidence Motion against the petitioner in view of several benevolent work having been undertaken in the village, and thirdly - that after several years, as indicated above, the seat for reserved caste has come up, on which the petitioner got elected, as a result of this, the general caste members have conspired against the petitioner, and under one pretext or other from the beginning, were troubling the petitioner and ultimately have seen to it that No Confidence Motion against the petitioner can take place.
8. Learned advocate Mr. Mangukiya for the petitioner has further submitted that in the meeting, in which the No Confidence Motion is to be deliberated, the Sarpanch or any other member against whom such motion is moved, has got a specific right to speak or to take part in the proceedings, and as such, by relying upon the decision delivered by this High Court reported in Geetaben Bharatbhai Patel versus State of Gujarat and Others, reported in 2006 (1) GLH 91, a contention is raised that this proposition of law would clearly Page 6 of 22 Downloaded on : Sun Jan 16 19:33:07 IST 2022 C/SCA/8520/2021 JUDGMENT DATED: 29/09/2021 indicate that present No Confidence Motion against the petitioner is not sustainable in the eye of law. It has been submitted that the petitioner was elected as a Sarpanch through democratic process and at the instance of some few handful persons from general caste, the elected representative cannot be so lightly removed. Requirement of allowing the concerned person to speak in the meeting is mandatory and the same cannot be sub-merged in the manner in which the case on hand is reflecting. The reliance is also placed upon the decision delivered by this Court in the case of Suvarnaben Chetanbhai Raval v. State of Gujarat and others, rendered in Special Civil Application No. 13685 of 2014, dated 24.12.2014, and has then submitted that the peculiar background of facts is clearly indicating that impugned Resolution of No Confidence Motion is not on the touchstone of law requires and to strength the submission. Mr. Mangukiya relied upon following decisions : -
(1) Geetaben Bharatbhai Patel versus State of Gujarat & Others reported in 2006 (1) G.L.H. 91;
(2) Mansukh alias Ravji Gorasiya versus the State of Gujarat in Letters Patent Appeal No. 717 of 2020 with Letters Patent Appeal No. 882 of 2020, dated 19.04.2021;
(3) Siddhram Satlingappa Mhetre versus State of Maharashtra and others reported in (2011) 1 SCC 694.Page 7 of 22 Downloaded on : Sun Jan 16 19:33:07 IST 2022
C/SCA/8520/2021 JUDGMENT DATED: 29/09/2021
9. After referring to the observations made in the aforesaid decisions, the learned advocate Mr. Mangukiya has submitted that since the issue is squarely covered by the aforesaid decisions, the reliefs as prayed for in the petition, deserve to be granted.
10. Mr. Mangukiya further submitted that there appears to be two conflicting views of Bench, and the subsequent view which has been taken is hit by principle of Per incuriam. The Division Bench in the latter case has without making any reference and considering the earlier view, delivered a decision. The view is as such in conflict with well recognized decision of per incuriam and for that purpose, Mr. Mangukiya relied upon the decision in the case of Siddhram Satlingappa Mhetre versus State of Maharashtra and others (supra) and has submitted that observations made in later decision since is in conflict with earlier view cannot be relied upon or followed. However, he has reserved his right to tender rejoinder after hearing the concerned learned advocate Mr. Munshaw representing the authority.
11. The learned advocate Mr. Munshaw appearing on behalf of the respondent authorities has vehemently objected to the stand taken by the petitioner. It has been categorically submitted that the agenda of the meeting in which the discussion was to take place of No Confidence issue of the petitioner, has been circulated to all the members of the Panchayat and then meeting was Page 8 of 22 Downloaded on : Sun Jan 16 19:33:07 IST 2022 C/SCA/8520/2021 JUDGMENT DATED: 29/09/2021 held on 05.05.2021. During the course of the meeting, the petitioner and other 8 members including Up- Sarpanch were present and after due deliberation, the No Confidence Motion was passed against the petitioner, in which six members voted in support of No Confidence Motion while the petitioner and other two members opposed the same and accordingly through a democratic process and as per the procedure of law, No Confidence Motion was passed against the petitioner. When that is so, there is hardly any case is made out by the petitioner to call for any interference.
12. Learned advocate Mr. Munshaw appearing on behalf of the respondent authorities has further submitted that the Taluka Development Officer, Taluka Panchayat, Chuda - respondent No. 2 was communicated about the said development vide the letter dated 06.05.2021 along with the copy of minutes of meeting dated 05.05.2021. Subsequent to the receipt of this communication on 06.05.2021, it was thought it fit by respondent No. 2 to exercise his powers under section 56 of the Act and vide the letter dated 10.05.2021, the respondent No. 3 was instructed to see that the charge of the post of Sarpanch be handed over to Up-Sarpanch and the same has been given effect to.
13. So far as the main stand taken by the learned advocate Mr. Mangukiya for the petitioner that the petitioner was not allowed to address the house in the Page 9 of 22 Downloaded on : Sun Jan 16 19:33:07 IST 2022 C/SCA/8520/2021 JUDGMENT DATED: 29/09/2021 meeting proceedings on 05.05.2021, the same is stoutly objected and specifically denied. By referring to the averments made in the affidavit-in-reply, it was contended that the petitioner was very much present in the meeting throughout, and even has opposed the No Confidence Motion moved against him, but has not asked for any opportunity specifically to address the house and even no such attempt was made throughout the meeting, and as such by referring to the decision delivered by the High Court in the cases of Special Civil Application Nos. 8059 of 2018, 8081 of 2018, 8204 of 2018 and 8501 of 2020, the contention raised that the stand taken by the petitioner about the opportunity to the petitioner is not made available is illfounded. So much so, that in the decision delivered by the Division Bench of this Court in the case of Parshottambhai Talsibhai Chhaniyara versus Taluka Vikas Adhikari Taluka Panchayat Mandal and others delivered in Letters Patent Appeal No. 1135 of 2018 on 31.08.2018, it was clearly observed after considering all previous decisions that if a person concerned, who participated in the meeting, has allowed the votes to go on without raising any objection, cannot than take plea of non-granting of opportunity of hearing. According to Mr. Munshaw, the affidavit and the minutes of meeting which clearly suggesting that enough opportunity was given to the petitioner to withstand the said No Confidence Motion, but after passing the same, having not achieved any fruitful result, the petition is brought before this Court on Page 10 of 22 Downloaded on : Sun Jan 16 19:33:07 IST 2022 C/SCA/8520/2021 JUDGMENT DATED: 29/09/2021 such disputed version. That being so, the stand taken by the petitioner is in quite conflict with the proposition of law on the issue already decided. Hence, no case is made out by the petitioner. Following are the decisions pressed into service by the learned advocate Mr. Munshaw to strengthen his submissions : -
(1) Parshottambhai Talsibhai Chhaniyara versus Taluka Vikas Adhikari Taluka Panchayat Mandal and others delivered in Special Civil Application No. 8059 of 2018, dated 23.03.2018;
(2) Ismail Fateali Sherasiya versus State of Gujarat and others delivered in Special Civil Application No. 8081 of 2018, dated 26.10.2018;
(3) Bharatbhai Ravjibhai Vadi versus State of Gujarat and others delivered in Special Civil Application No. 8204 of 2018, dated 11.07.2018;
(4) Kamuben Ganpatbhai Gohil versus State of Gujarat and others delivered in Special Civil Application No. 8501 of 2020, dated 24.09.2020;
(5) Pannaben Dilipbhai Bhatt versus District Panchayat and Another delivered in Special Civil Application No. 15905 of 2019, dated 03.10.2019.
14. Having heard the learned advocates for the parties, it appears that the main plank of submission of Mr. Mangukiya is that no adequate opportunity was given to speak against No Confidence Motion, which has violated Page 11 of 22 Downloaded on : Sun Jan 16 19:33:07 IST 2022 C/SCA/8520/2021 JUDGMENT DATED: 29/09/2021 the provisions contained under section 56 of the Act. In the context of this, the perusal of the affidavit which has been filed by the Talati-cum-Mantri - respondent No. 3 has in terms stated that the petitioner did participate in the meeting and was very much present along with all other members throughout the meeting and No Confidence Motion has been passed against the petitioner by majority in a lawful manner. The para 6 of the said affidavit reads as under:-
"The respondent No. 3 most respectfully submits that agenda of the meeting was served upon the petitioner and all the members of the Gram Panchayat. It is stated that the meeting was held on 05.05.2021 as per the Schedule and Upa-Sarpanch of the Gram Panchayat proceeded over the meeting. It is further stated that the petitioner and all 8 members including the Upa-Sarpanch were present in the meeting. The respondent No. 3 craves leave to submit that after some discussion, no confidence motion moved against the petitioner was put to vote and in all 6 members voted in support of the no confidence motion while the petitioner and other 2 members opposed the same and accordingly, no confidence motion was passed against the petitioner and minutes of the meeting were drawn accordingly."
15. In addition to the said assertion on oath in para 10, in which it has also been clearly asserted that the petitioner was present in the meeting throughout, even has actually made attempt to oppose the same and has not asked for any opportunity of address the house. The petitioner has participated in the meeting, hence, there is no irregularity of any nature in passing the said No Page 12 of 22 Downloaded on : Sun Jan 16 19:33:07 IST 2022 C/SCA/8520/2021 JUDGMENT DATED: 29/09/2021 Confidence Motion. Para 10 of the said affidavit reads as under : -
"The respondent No. 3 most respectfully submits that, the petitioner who was present in the meeting throughout and even opposed 'no confidence motion' moved against him, has also not asked for any opportunity to address the house. It is stated that, the petitioner has not even made an attempt to address the house during the meeting. The Hon'ble High Court of Gujarat recently has held through catena of judgments and such opportunity to address the house in case of no confidence motion is not to be offered. The respondent no. 2 craves leave to rely upon the judgments of this Hon'ble Court delivered in SCA No. 8081/2018, 8024/2018, 8501/2018 and 8059/2018 during the course of hearing. It is submitted that, the Division Bench of this Hon'ble Court has rejected the Letters Patent Appeal No. 1135/2018 preferred with the same contents and confirmed the order passed by a learned Single Judge of this Hon'ble Court in SCA No. 8059/2018."
16. In light of the aforesaid clear assertions on oath, a perusal to the minutes of meeting is also substantially supporting such stand from which it is established that the petitioner was present in the meeting, participated and voting has taken place as per the procedure. The said stand of the authority is suggesting that there is substantially compliance of Section 56 of the Act and even the meeting proceedings have also been taken place in presence of Observer, and in the minutes, the presence of the petitioner is also clearly recorded. When that be so, it is not possible to digest that there appears Page 13 of 22 Downloaded on : Sun Jan 16 19:33:07 IST 2022 C/SCA/8520/2021 JUDGMENT DATED: 29/09/2021 to be violation of law of any provisions of the relevant law. If the right to speak is conferred, the said right has to be exercised by the petitioner who on his own has not availed the said opportunity though throughout present in the meeting.
17. Now, in this context, the Division Bench in Letters Patent Appeal No. 1135 of 2018 decided on 31.08.2018 (supra) has examined almost similar issue by taking into consideration the earlier decision related to No Confidence Motion and the Division Bench has clearly opined that if the participation in the meeting has taken place without raising any objection or exercising right to speak, the same cannot be said to be violative of relevant provision. The relevant abstract contained in para 10 to 13, since relevant, the Court deems it proper to reproduce hereunder : -
"10. Learned counsel appearing for the petitioner has raised a contention that the respondents have violated his right to speak as provided under sub-section (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 sub-section (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 Page 14 of 22 Downloaded on : Sun Jan 16 19:33:07 IST 2022 C/SCA/8520/2021 JUDGMENT DATED: 29/09/2021 learned advocate for the petitioner.
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 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 Page 15 of 22 Downloaded on : Sun Jan 16 19:33:07 IST 2022 C/SCA/8520/2021 JUDGMENT DATED: 29/09/2021 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."
18. Further in a very recent time, yet another Division Bench of this Court in the case of Bharatbhai Ravjibhai Vadi versus State of Gujarat and others passed in Letters Patent Appeal No. 983 of 2018 decided on 04.08.2021 has also considered the case of Geetaben (supra) and chosen not to interfere with the appeal and the same was accordingly dismissed. The relevant observations contained in para 7 and 7.1 are since relevant, the Court deems it proper to reproduce hereunder : -
"7. Having heard the learned counsel appearing for the respective parties, we are at one with the decision of the learned Single Judge. The learned Single Judge has rightly held after going through the records transpiring from the minutes of the meeting that 11 members including the appellant remained present in the meeting which was held on 15.5.2018. All the members were explained and made aware about the provisions of Section 56(3) of the Act and were asked to vote raising their Page 16 of 22 Downloaded on : Sun Jan 16 19:33:07 IST 2022 C/SCA/8520/2021 JUDGMENT DATED: 29/09/2021 hands. It is further noted by the learned Single Judge that apart from the fact that there is nothing on record to suggest that the appellant had raised any objection or had sought to exercise his right to speak and was prevented from speaking. There is no other allegation made by the appellant in the writ-application but for oral arguments. It is not disputed by the appellant himself that he remained present in the meeting and had put his signature in the minutes of the meeting meaning thereby that he had participated in the proceedings.
7.1 Under such circumstances, when the appellant himself had chosen not to exercise his right to speak and had actually participated in the proceedings, it could not be said that Section 56(3) of the Act stood violated. We are also at one with the decision of the learned Single Judge when the learned Single Judge has considered the case of the Geetaben Bharatbhai Patel vs. State of Gujarat and Ors., reported in 2006 (1) GLH page-91 in which the appellant of the said writ application had opposed the procedure and sought permission to speak at the meeting, however was denied an opportunity which was violative of Section 56(3) of the Act. Clearly such is not a case in the present appeal. When one does not deem fit to speak and having signed the minutes of the meeting without any objections, it certainly cannot be said that there is any infirmity in the resolution dated 15.5.2018 and, therefore, we see no reason to interfere in the order passed by the learned Single Judge and also in view of the decision of the Coordinate Bench in the Letters Patent Appeal No.145 of 2018."
19. From the aforesaid observations made by the Division Benches of this Court in cases after the case law propounded in earlier decision of Geetaben Bharatbhai Patel versus State of Gujarat (supra), the Court is of the opinion that no case is made out by the petitioner to take a different view since two later decisions are dealing Page 17 of 22 Downloaded on : Sun Jan 16 19:33:07 IST 2022 C/SCA/8520/2021 JUDGMENT DATED: 29/09/2021 with the issue, the Court as a part of judicial discipline, would like to follow the same, hence, the point canvassed before the Court by the learned advocate for the petitioner is not possible to be accepted.
20. In the next limb of submission, the learned advocate Mr. Mangukiya has given much emphasize on the decision delivered by the High Court in the case of Geetaben Bharatbhai Patel versus State of Gujarat (supra), and has emphasized that the principle laid down in the said decision is still found not disturbed. Hence, later the Division Bench has taken the view in Letters Patent Appeal No. 1135 of 2018 dated 31.08.2018 (supra) is hit by the principle of per incuriam and as such cannot be said to be a good law. Now to understand this, the principle of per incuriam as tried to be canvassed by the learned advocate appearing for the petitioner. The said principle is well explained by the Apex Court in the case of Siddharam Satlingappa Mhetre versus State of Maharashtra and others (supra) and the observations contained therein since relevant, the Court deems it proper to reproduce hereunder : -
"128. Now we deem it imperative to examine the issue of per incuriam raised by the learned counsel for the parties. In Young v. Bristol Aeroplane Company Limited (1994) All ER 293, the House of Lords observed that `Incuria' literally means `carelessness'. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of Page 18 of 22 Downloaded on : Sun Jan 16 19:33:07 IST 2022 C/SCA/8520/2021 JUDGMENT DATED: 29/09/2021 stare decisis. The `quotable in law' is avoided and ignored if it is rendered, `in ignoratium of a statute or other binding authority. The same has been accepted, approved and adopted by this court while interpreting Article 141 the Constitution which embodies the doctrine of precedents as a matter of law.
"In Halsbury's Laws of England (4th Edn.) Vol. 26: Judgment and Orders: Judicial Decisions as Authorities (pp. 297-98, para 578) per incuriam has been elucidated as under :
"A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of coordinate jurisdiction which covered the case before it, in which case it must decide which case to follow (Young v. Bristol Aeroplane Co. Ltd., 1944 KB 718 at 729 : (1944) 2 All ER 293 at 300). In Huddersfield Police Authority v. Watson, 1947 KB 842 : (1947) 2 All ER, or when it has acted in ignorance of a House of Lords decision, in which case it must follow that decision; or when the decision is given in ignorance of the terms of a statute or rule having statutory force."
129. Lord Godard, C.J. in Huddersfield Police Authority v. Watson (1947) 2 All ER 193 observed that where a case or statute had not been brought to the court's attention and the court gave the decision in ignorance or forgetfulness of the existence of the case or statute, it would be a decision rendered in per incuriam.
134. In Bharat Petroleum Corporation Ltd. v. Mumbai Shramik Sangra and others, (2001) 4 SCC 448 a Constitution Bench of this Court ruled that a decision of a Constitution Bench of this Court binds a Bench of two learned Judges of this Court and that judicial discipline obliges them to follow it, regardless of their doubts about its correctness.
21. Yet another decision of the recent time delivered by Page 19 of 22 Downloaded on : Sun Jan 16 19:33:07 IST 2022 C/SCA/8520/2021 JUDGMENT DATED: 29/09/2021 the Hon'ble Apex Court in the case of Dr. Shah Faesal and others versus Union of India and Another reported in (2020) 4 SCC 1 is also worth taking note and also deserves to be considered. Since contention of per incuriam is raised with much emphasize and as such the Court would like to quote relevant observation of the said decision hereunder : -
"28. The rule of per incuriam has been developed as an exception to the doctrine of judicial precedent. Literally, it means a judgment passed in ignorance of a relevant statute or any other binding authority [see Young v. Bristol Aeroplane Co. Ltd., 1944 KB 718 (CA)]. The aforesaid rule is well elucidated in Halsbury's Laws of England in the following manner :
"1687. ... the court is not bound to follow a decision of its own if given per incuriam. A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of a coordinate jurisdiction which covered the case before it, or when it has acted in ignorance of a decision of the House of Lords. In the former case it must decide which decision to follow, and in the latter it is bound by the decision of the House of Lords." (emphasis supplied)
22. On the basis of aforesaid law laid down on the issue of law explained on the principle of per incuriam, if any judgment is delivered without knowledge of the previous binding decision or without making any reference of such, then the same may hit by the aforesaid principle, however, a close perusal of the decision of the Division Bench in the case of Letters Patent Appeal No. 1135 of 2018 (supra), it clearly transpires that the decision Page 20 of 22 Downloaded on : Sun Jan 16 19:33:07 IST 2022 C/SCA/8520/2021 JUDGMENT DATED: 29/09/2021 delivered in the case of Geetaben (Supra), which is stated been a good law, has been considered by the Court, and thereafter arrived at a conclusion almost in a similar facts as a case on hand, and as such, this Court is bound by later decision of Division Bench which has on the contrary considered in addition to said Geetaben's case (supra). The other decisions have also been taken into consideration. A clear reference of the said decision of Geetaben's case (supra) is considered, dealt with, examined and thereafter decided by the Division Bench of this Court which is reflecting on page 107 of the petition's compilation, and as such second limb of submission of learned advocate Mr. Mangukiya is of no assistance to the petitioner and as a part of judicial discipline, this Court is under an obligation to observe the proposition laid down in a later decision delivered in Letters Patent Appeal No. 1135 of 2018 (supra) and other decision of Division Bench as stated above. Hence, it is not possible for this Court to accept the contention which has been raised by the learned advocate for the petitioner.
23. From the aforesaid overall consideration of all material on record and in view of the decisions which have been placed on record by the learned advocate appearing for the respective sides, this Court is of the opinion that when the No Confidence Motion has been passed with regular procedure as contemplated under the Act and passed as per the requirement of law in Page 21 of 22 Downloaded on : Sun Jan 16 19:33:07 IST 2022 C/SCA/8520/2021 JUDGMENT DATED: 29/09/2021 which the petitioner participated throughout, the resolution passed against the petitioner cannot be said to be illegal or invalid in any case. In the light of the aforesaid peculiar background on facts, the cases which have been cited by the learned advocate for the petitioner, having gone through in its entirety keeping in view the latest pronouncements of the Division Bench of this Court, the Court is not inclined to consider the case of the petitioner.
24. Since facts are eloquent enough and the principle is well propounded by way of series of decisions indicated above, the individual cases which have been relied upon to substantiate, since basically covered by the decision delivered in Letters Patent Appeal as discussed above, the Court is of the opinion that the decisions cited by the learned advocate for the petitioner are not of any assistance.
25. As a result of this, the petition being devoid of merits, deserves to be dismissed and is accordingly stands dismissed. Rule is discharged.
Order in Civil Application No. 1 of 2021 -
In view of the order passed in the main petition, the present Civil Application does not survive and the same is also dismissed.
Sd/-
(ASHUTOSH J. SHASTRI, J) AMAR SINGH Page 22 of 22 Downloaded on : Sun Jan 16 19:33:07 IST 2022