Gujarat High Court
Zarinaben B Patel Sarpanch vs State Of Gujarat & 4 on 25 March, 2013
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
ZARINABEN B PATEL SARPANCH....Petitioner(s)V/SSTATE OF GUJARAT C/SCA/12786/2010 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 12786 of 2010 FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI =========================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
Yes 2 To be referred to the Reporter or not ?
Yes 3 Whether their Lordships wish to see the fair copy of the judgment ?
No 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?
No 5 Whether it is to be circulated to the civil judge ?
No ================================================================ ZARINABEN B PATEL, SARPANCH .... Petitioner Versus STATE OF GUJARAT & 4 .... Respondents ================================================================ Appearance:
MR CHINMAY M GANDHI, ADVOCATE, MR MB GANDHI, ADVOCATE for the Petitioner MR VIRAL J DAVE, ASSISTANT GOVERNMENT PLEADER for Respondent No. 1 MR PK SHUKLA FOR MR PRANAV V SHAH, ADVOCATE for Respondent No.2 RULE SERVED BY DS for Respondent(s) No. 3 - 5 ================================================================ CORAM:
HONOURABLE SMT.
JUSTICE ABHILASHA KUMARI Date : 25/03/2013 C.A.V. JUDGEMNT This petition, under Article 226 of the Constitution of India, has been preferred with a prayer to quash and set aside the order dated 05.07.2010, passed by respondent No.2 District Development Officer, District Panchayat, Surat, directing removal of the petitioner as Sarpanch and the order dated 15.09.2010, passed by respondent No.1 Additional Development Commissioner, whereby the aforementioned order of respondent No.2 has been confirmed.
Though notice of Rule was issued on 29.09.2010, respondents Nos.3 to 5 have not chosen to put in an appearance before this Court. As the presence of the said respondents, who are the Members of the Gram Panchayat, is not necessary for the determination of the issue involved, the petition is being decided in their absence.
Briefly stated, the facts of the case are that the petitioner was elected as Sarpanch of Ichhapor Gram Panchayat, and took charge, on 16.07.2009. Earlier as well, the petitioner had been elected as Sarpanch of the said Gram Panchayat in January 2007. However, she had voluntarily resigned on 29.09.2008.
The Talati-cum-Mantri of the Gram Panchayat made a complaint to the Taluka Development Officer on 31.07.2009, to the effect that the petitioner had tampered with the General Resolution Book of the Gram Panchayat by appending signatures of a Member of the Gram Panchayat, Shri Kishorebhai Dahyabhai Kosambia, who was not present on the dates against which the signatures were made in the General Meetings of the Panchayat. Along with the complaint, the Talati-cum-Mantri submitted an undated report to the Taluka Development Officer, wherein it is stated that on Monday, 27.07.2009, when he and the Additional Talati-cum-Mantri, Smt.Nimitaben Patel, were performing their duties in the office of the Gram Panchayat, the petitioner came there and asked for the General Resolution Book, stating that she would like to take it home for perusal. The petitioner had then taken away the General Resolution Book and when the Talati-cum-Mantri asked her to return it, the petitioner informed him that she was at Mota Bhagal, Surat, and the Talati-cum-Mantri could come there and take it back. The Talati-cum-Mantri went to the place indicated by the petitioner, where the petitioner told him to come to O.P.Savani Road. On his going there, the petitioner returned the General Resolution Book to him. It is further stated by the Talati-cum-Mantri that upon perusing the General Resolution Book, it came to his notice that against seven dates, the signatures of the Member of the Gram Panchayat, Shri Kishorebhai Dahyabhai Kosambia, were found, though the said Member was not present on those dates. The seven dates mentioned in the report are 25.07.2008, 25.08.2008, 30.01.2009. 24.02.2009, 26.03.2009, 04.04.2009 and 25.05.2009. Pursuant to the report of the Talati-cum-Mantri, respondent No.2 issued a communication dated 30.12.2009, to the petitioner, calling for her explanation in this regard. On 09.04.2010, respondent No.2 issued a show cause notice to the petitioner alleging that she had taken the General Resolution Book from the Talati-cum-Mantri and upon return of the said Book, it was found that the signatures of Shri Kishorebhai Dahyabhai Kosambia had been appended on the dates on which he was absent. In doing so, the petitioner had tampered with the record, therefore, why proceedings for her removal from the post of Sarpanch under Section 57(1) of the Gujarat Panchayats Act, 1993 ( the Act for short), be not initiated. The petitioner replied to the show cause notice on 09.04.2010, reiterating her denial of the charge against her on the grounds contained in the said reply. Thereafter, respondent No.2 passed the impugned order dated 05.07.2010, in exercise of powers under Section 57(1) of the Act, directing removal of the petitioner from the post of Sarpanch. The petitioner filed an appeal before respondent No.1, which has been rejected by the impugned order dated 15.09.2010. Aggrieved by the abovementioned orders of respondents Nos.2 and 1, the petitioner has approached this Court by way of the present petition.
Mr.Chinmay M.Gandhi, learned advocate for the petitioner, has made the following submissions:
(I) That, the impugned order of removal has been passed on the basis of a statement dated 15.03.2010 made by the Member Shri Kishorebhai Dahyabhai Kosambia, which is contradictory to his earlier statement dated 06.10.2009. A copy of the statement dated 15.03.2010, upon which reliance has been placed, has not been supplied to the petitioner. The petitioner had no opportunity to rebut the same. In the earlier statement dated 06.10.2009, the concerned Member had stated that he does not know on which Book he had signed, as he had appended his signatures without looking at the same; whereas as per the impugned order passed by respondent No.2, the same Member has stated that he put his signatures against four different dates. When there are two contrary statements of the same person on record, the petitioner ought to have been granted an opportunity to rebut the second statement. In any case, the said statement, being contradictory in nature, could not have formed the basis of the impugned order, and the petitioner ought not to have been removed on the strength of such a statement.
(II) That, the Talati-cum-Mantri is the custodian of the General Resolution Book. The petitioner has never asked the Talati-cum-Mantri for the said Book and it is only on the say of the Talati-cum-Mantri that the case against the petitioner has been initiated. Had the version of the Talati-cum-Mantri been correct, he could have made an endorsement on the record that the General Resolution Book is being taken and returned by the petitioner on a particular date. However, the version of the Talati-cum-Mantri has been believed and the say of the petitioner, that she has never taken the General Resolution Book, has been disbelieved.
(III) That, there was no reason for the petitioner to take the General Resolution Book or have the signatures of Shri Kishorebhai Dahyabhai Kosambia appended against the dates on which he was not present, as those dates pertain to the period when the petitioner was not the Sarpanch of the Village. The petitioner was initially elected as Sarpanch in January 2007 and voluntarily resigned on 29.09.2008. She was re-elected as Sarpanch and took charge of the said post on 16.07.2009. The complaint was made by the Talati-cum-Mantri on 31.07.2009, that is, almost immediately after the petitioner s taking charge as Sarpanch. The allegation against the petitioner in the show cause notice is that the petitioner has got appended the signatures of the concerned Member on seven dates.
Out of these dates, the petitioner was present only when resolution was passed on 20.07.2009. The other dates mentioned in the show cause notice are prior to taking over the charge of Sarpanch by the petitioner. There was, therefore, no reason for the petitioner to get the signatures of Shri Kosambia against the dates prior to her taking over charge, when he was absent.
(IV) That, the petitioner has obtained the opinion of the handwriting expert which is to the effect that the signatures that have allegedly been appended against the name of Shri Kishorebhai Dahyabhai Kosambia in the General Resolution Book, do not tally with the signatures of Shri Kosambia. This opinion has not been taken into consideration by respondents Nos.2 and 1 while passing the impugned orders.
(V) The petitioner has given a detailed explanation and reply to the show cause notice, the contents of which have not been taken into consideration by the concerned authorities while passing the impugned orders.
(VI) That, in the show cause notice, there is an allegation regarding three signatures whereas in the impugned order there is a reference to seven or eight signatures and to that extent, the impugned order is beyond the show cause notice.
(VII) That, the allegations against the petitioner do not constitute misconduct or abuse of power, therefore, her removal as Sarpanch on the basis of such allegations is illegal and contrary to the settled position of law.
In support of the above submissions, learned counsel for the petitioner has placed reliance upon the following judgments:
(i) (Shri) Prabodrai Dhirajram Nayak v. (The) District Panchayat, Surat and others 1983 GLH 782
(ii) Jyotiba S. Zala v. District Development Officer, Ahmedabad 2009(2) GLR 1150
(iii) Kamlaben Rohitbhai Patel v. Additional Development Commissioner, Gandhinagar & Ors. - 2001(1) GLH 109
(iv) Vinaykumar Tribhovandas Patel v. Addl. Development Commissioner & Others 1984 GLH 716
(v) Mahendrabhai Chanabhai Kandoliya v. Vakatar Bhagvanbhai Devabhai and Ors. -
2011(3) GLH 120
(vi) Dineshbhai Govabhai Makwana v. State of Gujarat 2012(3) GLR 2285 On the basis of the above submissions, it is prayed on behalf of the petitioner that the impugned orders be quashed and set aside and the petition allowed.
Mr.Viral J.Dave, learned Assistant Government Pleader, has submitted that there is no infirmity in the impugned orders passed by respondents Nos.2 and 1, therefore, this Court may not interfere.
Mr.P.K.Shukla, learned advocate for Mr.Pranav V.Shah, learned advocate for respondent No.2, has strongly opposed the prayers made in the petition. A preliminary objection has been raised to the effect that the petition has become infructuous as the term of the petitioner is now over and a fresh election has been held. It is submitted that the petitioner was elected as Sarpanch in January 2007, during the general elections. Her term was coextensive with the term of the Gram Panchayat, as per the provisions of Section 53 of the Act. As per the admission of the petitioner herself, she resigned voluntarily, on 29.09.2008. Thereafter, she was re-elected and took charge as Sarpanch on 16.07.2009. However, this re-election would be subject to the provisions of Section 61 of the Act, by virtue of which the vacancy caused by her resignation was filled up for the remaining period of the Gram Panchayat. It is contended that the normal period of the Gram Panchayat and the tenure of the Sarpanch would end in January 2012. The term of the Gram Panchayat is for five years, as per Section 13 of the Act, and even if the petitioner would not have been removed, she would have ceased to hold the post of Sarpanch after January 2012.
It is further submitted by the learned advocate for respondent No.2 that now the General elections have been held and a new Sarpanch has been elected for a period of five years, from January 2012 to 2017, therefore, the petition has become infructuous.
This Court would deal with the submission regarding the petition being rendered infructuous, at the appropriate stage.
No submissions have been advanced by the learned advocate for respondent No.2, on the merits of the matter. However, an affidavit-in-reply has been filed on behalf of respondent No.2, wherein it is stated that the petitioner has not only tampered with important documents of the Panchayat, but has also misused her position as Sarpanch by taking the record of the Panchayat from the custody of the Talati-cum-Mantri by misrepresenting that she required it for reading and, thereafter, obtaining the signatures of a Member of the Panchayat in the General Resolution Book on specific dates, on which he was absent from the meetings. It is further stated that this action constitutes grave and serious misconduct on the part of the petitioner. That, the impugned orders have been passed after appreciating the relevant material on record, and as they are just and proper, this Court may not interfere.
Having heard learned counsel for the respective parties and upon perusal of the material on record, it appears that the basis of the allegations against the petitioner are the signatures of the concerned Member, purported to have been taken by the petitioner in the General Resolution Book, to show that he was present on those dates, though he had been absent. The complaint dated 31.07.2009, in this regard, has been made by the Talati-cum-Mantri, who has stated therein that the petitioner came to the office of the Gram Panchayat and took the General Resolution Book on the pretext of wanting to read it. When he asked her to return it, the petitioner telephonically called him to O.P.Savani Road, where he went and the Book was returned to him by the petitioner. On the other hand, the petitioner flatly denies having taken the Resolution Book from the Talati-cum-Mantri, at all. It does not appear that any record has been maintained by the Talati-cum-Mantri, regarding the handing over of the General Resolution Book to the petitioner by taking her signature, or of its return. The Talati-cum-Mantri states in his report forwarded along with the complaint, that the petitioner has obtained the signatures of the said Member on seven dates.
It is an admitted position that the petitioner was initially elected as Sarpanch of the Gram Panchayat in January 2007 and voluntarily resigned from the post on 29.09.2008. Thereafter, she was re-elected as Sarpanch on 16.07.2009. The dates mentioned by the Talati-cum-Mantri in his report are 25.07.2008, 25.08.2008, 30.01.2009. 24.02.2009, 26.03.2009, 04.04.2009 and 25.05.2009. All the dates pertain to the period when the petitioner was not the Sarpanch of the village. What motive or reason the petitioner could have had for obtaining the signatures of the said Member on the dates on which he was absent, during the period when she did not hold the office of Sarpanch, is an unanswered question, that assumes considerable significance. No findings have been recorded by the concerned authorities regarding this aspect.
It is the case of the petitioner that only three dates have been mentioned in the show cause notice whereas the impugned orders talk of seven to eight dates. The submission made on behalf of the petitioner is that the impugned orders ought to be set aside as they are beyond the show cause notice. However, the Report of the Talati-cum-Mantri, sent along with the complaint dated 31.07.2009, clearly mentions seven dates.
From a close reading of the three tables given in the show cause notice, showing the dates on which the concerned Member was absent at the meetings but his signatures were taken on those dates, it emerges that as per the first table, Shri Kishorebhai Dahyabhai Kosambia is stated to have been absent on the following dates:
(1)30.01.2009 (2) 26.03.2009 (3) 04.04.2009 (4) 25.05.2009 As per the second table, Shri Kishorebhai is stated to be absent on the following date:(5)
15.10.2008 As per the second and third table on the very same dates mentioned in the first table, that is, (1) 30.01.2009, (2) 26.03.2009, (3) 04.04.2009, (4) 25.05.2009 and (5) 15.10.2008, mentioned in the second table, Shri Kishorebhai is shown to be present.
In the impugned order passed by respondents, no other dates have been mentioned, therefore, this Court is not convinced by the submission advanced by the learned advocate for the petitioner that the impugned orders are beyond the show cause notice. The judgment in the case of Jyotiba S. Zala v. District Development Officer, Ahmedabad (supra) cited by the learned advocate for the petitioner in support of this submission, would not be applicable in the present case.
Another submission made on behalf of the petitioner is that the statement of the Member, Shri Kishorebhai Dahyabhai Kosambia dated 15.03.2010, wherein he gives a different version to the one given by him in the earlier statement, has not been supplied to the petitioner. It appears from a perusal of the impugned order dated 05.07.2010, passed by respondent No.2, that this statement was recorded during the course of hearing on 15.03.2010. In the earlier statement dated 06.10.2009, the said Member has stated that he had not read the contents of the Book on which his signatures were taken, and did not know what Book it was; whereas he has changed his version in the later statement by stating that the petitioner had asked him to sign against four dates in the Resolution Book. It does not emerge from the record that the later statement dated 15.03.2010, on which reliance has been placed by the respondents for the removal of the petitioner, has been supplied to her. This being the position, it would constitute a violation of the principles of natural justice, as the petitioner was not given an opportunity to defend herself in this regard.
Learned counsel for the petitioner has relied upon the judgment in the case of (Shri) Prabodrai Dhirajram Nayak v. (The) District Panchayat, Surat and others (supra), on this point. This judgment is regarding the removal of a Chairman of a Nagar Panchayat on the ground that he had abused his powers. A preliminary inquiry was made in respect of the allegations against the Chairman, on the basis of which notice was issued and statements of persons were recorded. The Court found that the papers of the preliminary inquiry were not made available to the Chairman and a democratic election was set at naught without due inquiry, vitiating the entire process.
This judgment would be applicable in the present case where the statement on which reliance has been placed has not been supplied to the petitioner, especially as it is at variance with the earlier statement made by the Member of the Gram Panchayat, regarding the same incident.
Another aspect worthy of notice is that as per the provisions of Section 58(b) of the Act, if any Member of a Gram Panchayat is absent for four consecutive months from the meetings of the Panchayat, without the leave of the said Panchayat, he would cease to be a member and his office would be rendered vacant. By virtue of this Section, Shri Kosambia would have ceased to be a Member of the Gram Panchayat, due to his continuous absence for four consecutive months. It is evident that the Talati-cum-Mantri did not initiate any proceedings in this regard. This becomes clear from a reading of the impugned order passed by respondent No.2, wherein it is mentioned that the Taluka Development Officer, in his Report dated 27.10.2009, has recommended that action be taken against the Talati-cum-Mantri, as it was his responsibility to initiate action against the said Member. This aspect gains significance as it is the very same Talati-cum-Mantri who has made the complaint against the petitioner. It is the word of the Talati-cum-Mantri against that of the petitioner and the possibility cannot be ruled out that the petitioner may have been made a scapegoat, as all the dates mentioned in the show cause notice are prior to 16.07.2009, which is the period when the petitioner was not holding the charge of Sarpanch. What possible benefit the petitioner would have derived from the alleged tampering has not been considered by the concerned authorities at all. The reluctance of the Talati-cum-Mantri to initiate proceedings under Section 58 of the Act against Shri Kosambia, is also significant. The General Resolution Book is in the custody of the Talati-cum-Mantri, and the signatures alleged to have been obtained by the petitioner would benefit the very Member against whom the Talati-cum-Mantri did not initiate proceedings under Section 58, in spite of his absence. Viewed dispassionately, only Shri Kosambia would stand to benefit from the signatures as he would escape the rigors of Section 58 of the Act. For this reason, as well, the statement dated 15.03.2010 made by Shri Kosambia cannot be said to be worthy of credence. In this context, it is noteworthy that the Talati-cum-Mantri has made the complaint against the petitioner on 31.07.2009, just 15 days after she took over the charge of her post, on 16.07.2009. There appears to be much more to the matter than what appears on record.
From the above aspects of the matter, it cannot be said that there is strong or cogent material on record to show that the petitioner has committed misconduct or abused her position, so as to be liable for the extreme action of removal under the provisions of Section 57(1) of the Act.
In Kamlaben Rohitbhai Patel v. Additional Development Commissioner, Gandhinagar & Ors.(supra), this Court has held that the officers who discharge statutory duties under the Act cannot act in a cursory manner with a casual approach so as to curtail or truncate the holder of an elected office.
This judgment would apply to the case of the petitioner as the respondents have acted in a cursory manner and removed her from her post, without there being strong and weighty material on record to show that she has committed misconduct or abused her position.
In Vinaykumar Tribhovandas Patel v. Addl. Development Commissioner & Others (supra), this Court has held that mere irregularity in exercise of powers without anything more, cannot amount to abuse of power and result in removal of the Sarpanch.
In Dineshbhai Govabhai Makwana v. State of Gujarat (supra), this Court, relying upon the judgment of the Supreme Court in Tarlochan Dev Sharma v. State of Punjab [(2001)6 SCC 260] and Sharda Kailash Mittal v. State of M.P. [AIR 2010 SC 3450 : 2010(1) GLH 744], held as below:
34. As stated by the Supreme Court in Sharda Kailash Mittal v. State of M.P. (Supra), the power of removal can be invoked only for strong and weighty reasons. Further, as held by the Supreme Court in Tarlochan Dev Sharma v. State of Punjab (Supra), a single or casual aberration or failure in exercise of power or error of decision is not enough for removal, but a course of conduct or plurality of aberration or failure in exercise of power involving dishonesty of intention is sufficient for removal. In the present case, the record does not reveal that there is a course of conduct with plurality of aberrations or dishonest intentions by the petitioner.
In Tarlochan Dev Sharma v. State of Punjab (supra), the Supreme Court has held as below:
7. In a democracy governed by rule of law, once elected to an office in a democratic institution, the incumbent is entitled to hold the office for the term for which he has been elected unless his election is set aside by a prescribed procedure known to law. That a returned candidate must hold and enjoy the office and discharge the duties related therewith during the term specified by the relevant enactment is a valuable statutory right not only of the returned candidate but also of the constituency or the electoral college which he represents. Removal from such an office is a serious matter. It curtails the statutory term of the holder of the office. A stigma is cast on the holder of the office in view of certain allegations having been held proved rendering him unworthy of holding the office which he held....
(emphasis supplied) The same principle of law is reiterated in Sharda Kailash Mittal v. State of M.P. (supra). The relevant observations read as below:
18.
For taking action under Section 41-A for removal of President, Vice-President or Chairman of any Committee, power is conferred on the State Government with no provision of any appeal. The action of removal casts a serious stigma on the personal and public life of the concerned office-bearer and may result in his/her disqualification to hold such office for the next term. The exercise of power, therefore, has serious civil consequences on the status of an office bearer. There are no sufficient guidelines in the provisions of Section 41-A as to the manner in which the power has to be exercised, except that it requires that reasonable opportunity of hearing has to be afforded to the office bearer proceeded against. Keeping in view the nature of the power and the consequences that flows on its exercise it has to be held that such power can be invoked by the State Government only for very strong and weighty reason. Such a power is not to be exercised for minor irregularities in discharge of duties by the holder of the elected post. The provision has to be construed in strict manner because the holder of office occupies it by election and he/she is deprived of the office by an executive order in which the electorate has no chance of participation.
(emphasis supplied) What emerges from a detailed examination of the facts and circumstances of the case, in light of the principles of law enunciated by this Court and the Supreme Court, is that there are no strong or weighty reasons to hold that the petitioner is guilty of the allegations against her. No record appears to have been maintained by the Talati-cum-Mantri in support of his complaint that he handed over the General Resolution Book to the petitioner on a particular date and received it back on a particular date. Had the Talati-cum-Mantri been conscientious about his duties he would, at least, have taken the signatures of the petitioner to evidence the handing over and receipt of the Resolution Book. The Talati-cum-Mantri is the custodian of the record and it is not his case that he was compelled by the petitioner to part with it. The conduct of the Talati-cum-Mantri, in the circumstances, is improbable.
To remove an elected representative of the people in a democracy, would mean to cast a stigma on the personal and public life of the removed office bearer, as stated by the Supreme Court in Sharda Kailash Mittal v. State of M.P. (supra). It may result in his or her disqualification to hold such office in future. The consequences of such action would be extremely harsh.
It is for precisely this reason that this Court has proceeded to examine the merits of the case, in the face of the preliminary objection raised by respondent No.2, to the effect that the term of five years is now over, the general elections have been held and a new Sarpanch has been elected, and the petition has become infructuous. If the impugned orders are ultimately not found to be sustainable in law, it may result in a miscarriage of justice to leave them standing. The petitioner may be disqualified for future elections, which would not be just or proper, if the impugned orders are found to be illegal or erroneous.
As discussed hereinabove, the petitioner has not been supplied with a copy of the second statement dated 15.03.2010 of Shri Kosambia, Member of the Gram Panchayat, relying on which respondent No.2 has passed the order of removal of the petitioner from the post of Sarpanch. The earlier statement of the said Member did not implicate the petitioner as he denied any knowledge regarding the Book in which he signed or the reason for his signatures. In the second statement, Shri Kosambia, for reasons best known to him, has changed his stand and implicated the petitioner, who had no opportunity to rebut this statement. Respondent No.2 has heavily relied on the second statement of Shri Kosambia for the removal of the petitioner.
The removal from office of a democratically elected Sarpanch would entail serious civil consequences, therefore, the principles of natural justice and rule of Audi Alterem Partem would demand that the petitioner be given a fair and adequate opportunity to defend herself. As such an opportunity has not been provided to the petitioner, the impugned orders are vitiated on this ground.
The Talati-cum-Mantri is the initiator of the proceedings against the petitioner. His say, that the petitioner took the General Resolution Book from him, is not supported by any document on record. As a custodian of the record of the Gram Panchayat, the Talati-cum-Mantri ought to have maintained the necessary record regarding the taking away and return of the General Resolution Book by the petitioner, which he does not appear to have done. Though he was quick enough to initiate proceedings against the petitioner after just 15 days of her taking over charge, the Talati-cum-Mantri did not show the same zeal in initiating proceedings against Shri Kosambia, for having remained absent for four consecutive meetings of the Gram Panchayat. The dates mentioned in the report of the Talati-cum-Mantri relate to the period when the petitioner was not holding the post of Sarpanch. How, and in what manner, would the petitioner benefit from taking the signatures of the concerned Member on those dates and in what manner has she committed misconduct or abused her position under the circumstances, is not evident from the facts of the present case. There is no strong or sufficient material to conclude that the petitioner has taken away the General Resolution Book and got Shri Kosambia to append his signatures or that Shri Kosambia has done so, at her behest. Shri Kosambia has conveniently changed his stand, for reasons best known to him. As noted earlier, he alone would have benefitted from the signatures in the General Resolution Book, so as to escape the mischief of Section 58 of the Act. From the material on record, the possibility of collusion between the Talati-cum-Mantri who did not initiate proceedings under Section 58 and Shri Kosambia, cannot be ruled out. Under the circumstances, it cannot be said that the material on record proves that the petitioner has committed misconduct or has abused her position.
At this stage, it would be relevant to advert to a judgment of the Division Bench of this Court in Mahendrabhai Chanabhai Kandoliya v. Vakatar Bhagvanbhai Devabhai and Ors. (supra), wherein the principle of lis pendens has been discussed. This judgment has been heavily relied upon by the learned advocate for the petitioner, to buttress his submission that the petitioner ought to be reinstated on the post of Sarpanch, in the event that the impugned orders are set aside. Elaborating on the doctrine of lis pendens after examining several judgments, the Division Bench has held:
17. ...
The maxim Pendente lite nihil innovetur according to the Law Lexicon is as under :-
During a litigation nothing new should be introduced. During a litigation no change in the position of things, or of parties, can be made.
Applying this principle of law, during the pendency of a petition, nothing new can be introduced and if at all anything new is introduced, the same would also be subject to the final outcome of the petition, which would decide the rights and obligations of the parties.
We are of the view that it is not even necessary to clarify that any action during the pendency or say, in the present case, fresh election to the post of Sarpanch, shall be subject to the final outcome of the petition. The principle of lis pendens itself can be termed as a constructive notice of the fact that if election is conducted during the pendency of the petition, the same shall be subject to the final outcome of the petition and the person elected in the said election would be bound by the final order, which the Court may pass ultimately.
(emphasis supplied) The factual matrix in which the above judgment was rendered, is required to be noticed. The original petitioner (respondent No.2 in the Letters Patent Appeal) was elected as Sarpanch on 28.01.2007. While holding the said office, he was served with a show cause notice. In the proceedings that followed he was removed as Sarpanch in exercise of powers under Section 57(1) of the Act. The orders of the concerned authorities were challenged by the petitioner, by filing a petition which came to be rejected. In the Letters Patent Appeal filed by the petitioner, the Division Bench quashed and set aside the orders of the authorities under the Act, as well as the judgment of the learned Single Judge, and ordered that the petitioner be allowed to resume the office of Sarpanch. In the meanwhile, fresh elections had been held, as the post of Sarpanch had fallen vacant upon the removal of the petitioner and another person had been elected as Sarpanch. The newly-elected Sarpanch moved an application before the Division Bench, with a prayer to recall or review that part of the order in the Letters Patent Appeal, which permitted the original petitioner to resume the office of Sarpanch. It is in this factual background that the doctrine of lis pendens has been applied by the Division Bench. Though the principle of law propounded by the Division bench cannot be disputed, its applicability in the context of the factual position obtaining in the present case remains to be seen, in the light of the relevant provisions of the Act.
From the facts of the case before the Division Bench, it is clear that the original petitioner had been removed before his term of five years under the Act, was over. As he was removed in mid-term, the Division Bench directed his reinstatement for the rest of the term and held that the doctrine of lis pendens would apply in his case and the newly-elected Sarpanch would be subject to the outcome of the proceedings. It was held that the principle of lis pendens itself can be termed as constructive notice of the fact that if an election is conducted during the pendency of the petition, the same can be subject to the final outcome thereof and the person elected in the said election would be bound by the final order which the Court may ultimately pass.
Before adverting to the facts of the present case, the relevant provisions of law relating to the term of the Gram Panchayat and the Sarpanch may be noticed.
Section 53 of the Act prescribes the term of office of Members of Village Panchayats and of the Sarpanch. It reads as below:
53. Term of office of members of village panchayats, and of Sarpanch etc. thereof Save as otherwise provided in this Act, the term of office of-
(a) the member of a village panchayat, and
(b) the Sarpanch and Upa-Sarpanch of a village panchayat shall be co-extensive with the duration of the panchayat.
As per this section, the term of the Members and Sarpanch of the Village Panchayat is co-extensive with the duration of the Panchayat.
Section 13 prescribes the duration of the Panchayats and the reconstitution. It is reproduced as below:
13. Duration of Panchayats and their reconstitution (1) Every panchayat, unless sooner dissolved under this Act shall continue for five years from the date appointed for its first meeting and no longer.(2)
An election to constitute a panchayat shall be completed -
(a) before the expiry of its duration specified in sub-section (1);
(b) before the expiration of a period of six months from the date of its dissolution;
Provided that where the remainder of the period for which the dissolved panchayat would have continued is less than six months, it shall not be necessary to hold any election under this sub-section for constituting the panchayat for such period.
(3)A panchayat constituted upon the dissolution of a panchayat before the expiration of its duration shall continue only for the remainder of the period for which the dissolved panchayat would have continued under sub-section (1) had it not been so dissolved.
As per this provision of law, the term of the Gram Panchayat is for five years.
In the present case, the facts are different from the case of Mahendrabhai Chanabhai Kandoliya v. Vakatar Bhagvanbhai Devabhai and Ors. (supra).
It is an admitted position that the petitioner was initially elected as Sarpanch of Ichhapor Gram Panchayat in January 2007. Her term was coextensive with the term of the Gram Panchayat, which would end in January 2012. In the meanwhile, however, the petitioner voluntarily resigned on 29.09.2008, in mid-term. Thereafter, she was re-elected and took charge of the post of Sarpanch on 16.07.2009. The duration of the Panchayat would be from January 2007 to January 2012, that is for five years, as per the provisions of Section 13 of the Act. The petitioner, therefore, would have no right to continue beyond the prescribed term of five years. The election that has now taken place is due to the fact that the five year term of the Gram Panchayat was over in January 2012. In any case, the petitioner could not have continued as Sarpanch after the expiry of the five-year term prescribed by the Act. That the petitioner had resigned in the middle of the term and was again re-elected as Sarpanch during the same term, would not result in extension of the term beyond five years, against the provisions of the Act. The term of the petitioner would be coextensive with the term of the Panchayat. That is the clear mandate of the statute and the intention of the legislature. When the term of the Gram Panchayat itself would end after five years, it is unconceivable that the petitioner would continue to hold the post of Sarpanch after completion of the five year tenure and the dissolution of the Gram Panchayat. In the circumstances, the doctrine of lis pendens, as expounded by the Division Bench on the facts of the case before it would, in the view of this Court, not be applicable to the facts of the present case. The general elections after the completion of the five year term of the Panchayat have already been held in January 2012, and a new Sarpanch has been elected. The period of five years is to be counted from January 2007 when the petitioner was initially elected, upto 2012, and not beyond. The doctrine of lis pendens cannot be pressed into service by the petitioner in contravention of the provisions of the Act. Only to this extent, the preliminary objection raised by learned advocate for respondent No.2, would be justified.
As a cumulative result of the above discussion and for the aforestated reasons, the position that emerges is that, the orders dated 05.07.2010 and 15.09.2010, passed by respondents Nos.2 and 1 respectively, being unsustainable in law, deserve to be quashed and set aside. Accordingly, they are quashed and set aside.
However, as the statutory term of five years for which the petitioner was elected as Sarpanch is over and a new Sarpanch has been elected and has taken charge of the post, this Court cannot issue directions for reinstatement of the petitioner as Sarpanch of Ichhapor Gram Panchayat.
The petition is partly-allowed, in the above terms. Rule is made absolute, accordingly. There shall be no orders as to costs.
(Smt.Abhilasha Kumari, J.) (sunil) Page 39 of 39