Gujarat High Court
Sakarben Aalabhai Ratiya vs The Development Commissioner, Gujarat ... on 13 December, 2019
Equivalent citations: AIR 2020 GUJARAT 43, AIR 2020 GUJRAT 43, AIRONLINE 2019 GUJ 577
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
C/SCA/15369/2019 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15369 of 2019
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 15369 of 2019
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 2 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 15369 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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SAKARBEN AALABHAI RATIYA
Versus
THE DEVELOPMENT COMMISSIONER, GUJARAT STATE
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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 KM ANTANI, AGP for the Respondent(s) No. 1,6
MS KIRAN D PANDEY(3337) for the Respondent(s) No. 2,3
MS ROOPAL R PATEL(1360) for the Respondent(s) No. 4,5
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CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 13/12/2019
ORAL JUDGMENT
1. This petition is filed under Article 226 of the Constitution of India, in which, the petitioner has prayed that the order dated 26.06.2019 passed by respondent No.1 be quashed and set aside.
2. Looking to the issue involved in the present Page 1 of 18 Downloaded on : Sat Dec 14 12:10:45 IST 2019 C/SCA/15369/2019 JUDGMENT petition, learned advocates appearing for the parties jointly requested that this petition be disposed of finally at admission stage and, therefore, the same is taken up for final disposal.
3. Heard learned advocate Mr.B.M. Mangukiya for the petitioner, learned advocate Ms.Kiran D. Pandey for respondent Nos.2 and 3 and learned Assistant Government Pleader K.M. Antani for respondent Nos.1 and 6.
4. Learned advocate Mr.Mangukiya appearing for the petitioner submits that the election of District Panchayat, Porbandar, was held in December, 2015. The petitioner is elected as a Member of the District Panchayat from 16Rana Kandorna constituency. The District Panchayat, Porbandar, consisted of 18 members. 14 candidates set up by Bhartiya Janta Party got elected, whereas 4 candidates set up by the Indian National Congress have been elected and the petitioner is one of the elected member from Indian National Congress. It is submitted that the respondent authority alleged that the petitioner did not attend the meeting of the general board of District Panchayat on 22.03.2018, 07.06.2018, 20.06.2018 and 05.07.2018. Thus, it is alleged that the petitioner failed to attend four consecutive meetings and, therefore, the Showcause Notice dated 31.07.2018 was issued by respondent No.2 to the petitioner. On receipt of the said notice, the petitioner addressed a communication dated 07.08.2018 Page 2 of 18 Downloaded on : Sat Dec 14 12:10:45 IST 2019 C/SCA/15369/2019 JUDGMENT and, thereby, requested the District Panchayat to supply certain documents. After receipt of the documents, the petitioner gave reply on 13.08.2018, in which, the petitioner pointed out that the meeting of the District Panchayat was scheduled to be held on 07.06.2018 at 12:00 PM (noon). The petitioner in fact received information after the meeting was over. It is also stated by the petitioner in the said reply that so far as the another meeting, which was scheduled on 05.07.2018 is concerned, the petitioner was not in town and the petitioner never expected that within such a short span of time, the District Panchayat would call meeting one after another and, therefore, since no notice was served to the petitioner, the same cannot be considered as an absence of the petitioner.
4.1 Learned advocate Mr.Mangukiya for the petitioner would submit that though the petitioner has submitted a reply, the respondent authority passed a resolution in the meeting against the petitioner. The petitioner, therefore, raised a dispute as contemplated under Section 86(3) of the Gujarat Panchayats Act, 193 ("the Act" for short). It was pointed out before respondent No.1 from the documents that the petitioner could trace two covers of the registered post on the website of the Postal Department of the track consignment of the Registered Post A.D. (RPAD) sent with acknowledgment. However, it is stated that consignment details were not found.
It is contended by the learned advocate for the Page 3 of 18 Downloaded on : Sat Dec 14 12:10:45 IST 2019 C/SCA/15369/2019 JUDGMENT
petitioner that respondent No.1 by an impugned order dated 26.06.2019 rejected the dispute application submitted by the petitioner and, therefore, the petitioner has filed the present petition.
4.2 Learned advocate Mr.Mangukiya has assailed the impugned order passed by the respondent authority mainly on the ground that the notice of the meeting dated 07.06.2018 which was scheduled at 12:00 PM (noon) was served to the petitioner only at 2:00 PM and as the petitioner is lady residing 40 kms away from the place of the meeting, she could not reach at the place of meeting and, therefore, it cannot be said that the petitioner remained absent on the date of the said meeting. It is further contended that out of four meetings, in case of two meetings, notice is not served at all to the petitioner and the respondent authority has failed to produce any proof with regard to the service of notice to the petitioner. Thus, in absence of any proof available with the respondent authority, the respondent authority ought not to have passed the impugned order against the petitioner. It is also contended that so far as the signature of the petitioner in the agenda alleged to have been served to the petitioner for the meeting dated 20.06.2018 is concerned, the respondent authority has observed that whether it is a signature of the petitioner or not, cannot be examined by the respondent authority in absence of any infrastructure. It is contended that it is for the respondent authority to prove that the signature Page 4 of 18 Downloaded on : Sat Dec 14 12:10:45 IST 2019 C/SCA/15369/2019 JUDGMENT obtained by the respondent authority is of the petitioner.
4.3 Learned advocate Mr.Mangukiya thereafter would submit that the respondent authority has not followed the procedure prescribed in Rules 4 and 5 of the Gujarat Panchayats (Procedure) Rules, 1997 ("the Rules" for short). It is, therefore, urged that the impugned order passed by the respondent authority be quashed and set aside.
4.4 Learned advocate for the petitioner further submits that an elected member cannot be treated casually and when it is a specific case of the petitioner that out of the four meetings, notices of the two meetings were not served to the petitioner and, therefore, the respondent authority could not have exercised powers under Section 86 of the Act. It is, therefore, urged that this petition be allowed and the impugned order passed by the respondent authority be quashed and set aside. Consequently, so far as the election program declared by the respondent authority for holding the election of 16 Rana Kandorna constituency is concerned, the same shall be set aside.
4.5 Learned advocate Mr.Mangukiya has placed reliance upon the following decisions:
(1) Har Charan Singh vs. Shiv Rani and others reported in AIR 1981 SC 1284 Page 5 of 18 Downloaded on : Sat Dec 14 12:10:45 IST 2019 C/SCA/15369/2019 JUDGMENT (2) Tarlochan Dev Sharma vs. State of Punjab and others reported in 2001(6) SCC 260 (3) Sharda Kailash Mittal vs. State of Madhya Pradesh and others reported in 2010(2) SCC 319 (4) Ravi Yaswant Bhoir vs. District Collector, Raigad and others reported in 2012(4) SCC 407 (5) Prabin Ram Phukan and another vs. State of Assam and others reported in 2015(3) SCC 605
5. On the other hand, learned advocate Ms.Kiran D. Pandey appearing for the respondent Panchayat has vehemently opposed this petition and referred the averments made in the affidavitinreply filed on behalf of respondent Nos.2 and 3. After referring to the averments made in the affidavitinreply, it is contended that the general meeting of the District Panchayat was held as per Section 144 of the Act, according to which, the general meeting is to be held quarterly. However, as per the proviso of the said section, the Panchayat for any specified reason and upon written request of not less than one third of the members may call the meeting of the District Panchayat at any other time. It is submitted that the procedure prescribed under Rules 4 and 5 of the Rules has been followed. The District Panchayat, Porbandar, sends notice/agenda of the meeting through RPAD only. It is submitted that the petitioner remained absent in four consecutive meetings of the District Page 6 of 18 Downloaded on : Sat Dec 14 12:10:45 IST 2019 C/SCA/15369/2019 JUDGMENT Panchayat as stated in the impugned order and, therefore, the proceedings were initiated under Section 86 of the Act against the petitioner and after giving an opportunity of hearing to the petitioner, the impugned order/resolution has been passed by the respondent Panchayat and, therefore, no illegality is committed by the respondent Panchayat while passing the resolution passed against the petitioner.
5.1 At this stage, learned advocate Ms.Pandey would submit that the petitioner is in fact stated in her reply that she received the agenda dated 07.06.2018 in the afternoon i.e. at 2:00 PM. However, there is no endorsement of time of service of notice. It is further submitted that so far as the meeting dated 05.07.2018 is concerned, the petitioner has in fact admitted in her letter/reply dated 07.08.2018 that she received the agenda of the said meeting on 02.07.2018. However, since she was out of station, she could not remain present. In spite of that, in her representation dated 13.08.2018, the petitioner has stated that she was out of State with her family and, therefore, she had no knowledge about the meeting dated 05.07.2018. Thus, the petitioner is trying to mislead the authority as well as this Court and, therefore, this Court may not entertain this petition. At this stage, it is also contended that as per the case of the petitioner, she was out of State during the period between 27.06.2018 to 06.07.2018. However, the fact remains that on behalf of her, the Page 7 of 18 Downloaded on : Sat Dec 14 12:10:45 IST 2019 C/SCA/15369/2019 JUDGMENT notice sent by the Panchayat was received by one of her family members. It is clarified that in case where the RPAD letter is remained undelivered, the Post Office sends sealed cover back to the sender. But, in the present case, it appears that one of the family members of the petitioner has received the RPAD letter. In spite of that, the petitioner has not bothered to inquire either telephonically or through the letter from the District Panchayat.
Learned advocate Ms.Pandey would further submit that the petitioner has never complained that the agenda for the meeting dated 07.06.2018 was served to her at 2:00 PM i.e. after the meeting was over at 12:00 PM. Though the notice dated 05.07.2018 was served to the petitioner on 02.07.2018, she has not requested the respondent Panchayat that her absence be pardoned on the date of meeting dated 05.07.2018 for the reason that she would not be in town on the date of the meeting.
5.2 Learned advocate Ms.Pandey lastly contended that from the material placed on record, it is revealed that the notices sent by the respondent Panchayat to the petitioner were duly served and, therefore, whether the said notice was served after a period of meeting or whether the petitioner has signed the notice served through the concerned authority or not, cannot be examined by this Court in the petition, which is filed under Article 226 of the Constitution of India. Once the respondent authority has, on the Page 8 of 18 Downloaded on : Sat Dec 14 12:10:45 IST 2019 C/SCA/15369/2019 JUDGMENT basis of the material, held that the notices were sent to the petitioner and were duly served, this Court may not examine the disputed questions of fact.
5.3 It is further submitted that the decisions upon which reliance placed by the learned advocate for the petitioner would not be applicable to the facts of the present case. It is, therefore, urged that this petition be dismissed.
6. Having heard learned advocates appearing for the parties and having gone through the material placed on record, it has emerged that the petitioner is elected as Member of the District Panchayat for the election which was held in December, 2015. It is also not in dispute that the petitioner did not remain present in the four consecutive meetings of the District Panchayat, which were held on 22.03.2018, 07.06.2018, 20.06.2018 and 05.07.2018. The only contention raised by the learned advocate for the petitioner is that the notices issued by the respondent Panchayat about the aforesaid meetings were not duly served to the petitioner and, therefore, the petitioner could not remain present in the said meetings. Hence, the respondent Panchayat could not have initiated the proceedings under Section 86 of the Act against the petitioner.
7. From the material placed on record, it is revealed that in the reply dated 07.08.2018 given by the petitioner pursuant to the notice issued under Page 9 of 18 Downloaded on : Sat Dec 14 12:10:45 IST 2019 C/SCA/15369/2019 JUDGMENT Section 86 of the Act, the petitioner has accepted that the agenda of the meeting dated 05.07.2018 was duly served to her on 02.07.2018. However, the petitioner could not remain present in the meeting as she was not in town. It is further revealed that so far as the meeting which was scheduled on 07.06.2018 is concerned, it is also admitted fact that the petitioner received the notice of the said meeting. However, the case of the petitioner is that though the meeting was scheduled at 12:00 PM, she received notice at 2:00 PM and as the petitioner is residing 40 kms away from the place of the meeting, she could not remain present in the said meeting. However, this Court is of the view that such stand taken by the petitioner is nothing but an afterthought. If the petitioner has received notice on 07.06.2018 at 2:00 PM, she could have requested the respondent Panchayat telephonically or by sending a letter that she had not remained present in the meeting because of the aforesaid reason. However, the petitioner has not cared to inform the respondent Panchayat about the aforesaid aspect. Further, so far as the meeting dated 22.03.2018 is concerned, from the dispatch slip placed on record, it is revealed that the respondent Panchayat has sent the notice by RPAD to the petitioner as well as to the other members and from the acknowledgment slip placed on record at Page20 of the compilation, it is clear that the said notice is duly served to the petitioner. It is the contention of the petitioner that the signature on the said acknowledgment slip is not her signature.
Page 10 of 18 Downloaded on : Sat Dec 14 12:10:45 IST 2019C/SCA/15369/2019 JUDGMENT However, the said disputed question cannot be examined by this Court in the present petition.
Further, so far as the meeting dated 20.06.2018 is concerned, from the material placed on record at Page23 of the compilation, it is revealed that the notice of the said meeting is personally served to the petitioner and the petitioner has signed the said document.
8. At this stage, the provisions contained in Section 144 of the Act is required to be referred:
"144. Meetings of district Panchayat. The meeting of a district panchayat shall beheld normally every three months:
Provided that the President of the panchayat, may for any specified reason and shall, upon the written request of not less than one third of the members, call the meeting of the district panchayat at any other time."
9. From the aforesaid provision, it is clear that normally, the meeting of the District Panchayat shall be held every three months. However, the President of the Panchayat is empowered to call the meeting of the Panchayat at any other time for any specified reason.
10. Thus, from the aforesaid provision, it is clear that the meeting can be called for specified reasons even prior to completion of three years. Agenda of all the four meetings are placed on record, from which, it can be said that the President was Page 11 of 18 Downloaded on : Sat Dec 14 12:10:45 IST 2019 C/SCA/15369/2019 JUDGMENT justified in calling the meeting even before completion of three months.
11. In the case of Prabin Ram Phukan and another vs. State of Assam and others (supra), the Honourable Supreme Court has observed in Paragraph23 as under:
"23. In our considered opinion, in the first place, the well reasoned finding of fact recorded by the Board in favour of the appellants (landholders) on the question of non service of notice of the demand for payment of defaulted amount of arrears of land revenue of Rs. 731.70 and nonservice of notice of sale of land was binding on the writ court, being a pure finding of fact and more so, when it was based on proper appreciation of facts. Secondly, the High Court exceeded its jurisdiction when it proceeded to examine this factual issue like an appellate court and reversed the factual finding. Thirdly, assuming that the High Court could go into this issue in its writ jurisdiction, yet in our opinion, mere perusal of the finding of the High Court would go to show that no proper service much less effective service of notice of demand and sale of land was made on the appellants. In other words, reading of reasoning and discussion of the High Court cannot allow us to reach to a conclusion that the appellants were duly served of the notices. Rather it would take us to a conclusion that the appellants were not properly served. Fourthly, the writ court did not assign any cogent reason as to why the factual finding of the Board on this issue was wrong and hence, call for interference. Fifthly, when we, on our part, have examined the issue of notice independently in the light of the requirement of Section 72 read with Rules 133, 134, 136 and 136A which deals with the mode of effecting service on the defaulting landholder, then we have no hesitation in recording a finding that no notice was served on the appellants as contemplated Page 12 of 18 Downloaded on : Sat Dec 14 12:10:45 IST 2019 C/SCA/15369/2019 JUDGMENT under the aforementioned provisions."
12. From the aforesaid observation, it is clear that the writ Court cannot enter into pure finding of fact and, therefore, the Honourable Supreme Court observed that in the said case, the High Court exceeded its jurisdiction when it proceeded to examine the factual issue like an appellate court and reversed the factual finding. From the aforesaid observation, this Court is of the view that the said decision would not be helpful to the petitioner and this Court cannot go into the factual aspects that on the acknowledgment slip, whether it is a signature of the petitioner or not as well as whether the agenda notice sent by the RPAD was served to the petitioner before 12:00 PM or at 2:00 PM.
13. In the case of Har Charan Singh vs. Shiv Rani and others (supra), the Honourable Supreme Court has observed in Paragraph7 as under:
"7. Sec. 27 of the General Clauses Act, 1897 deals with the topic 'Meaning of service by post' and says that where any central Act or Regulation authorises or requires any document to be served by post, then unless a different intention appears, service shall be deemed to be effected by properly addressing, prepaying and posting it by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. The S. thus raises a presumption of due service or proper service if the document sought to be served is sent by properly addressing, prepaying and posting by Page 13 of 18 Downloaded on : Sat Dec 14 12:10:45 IST 2019 C/SCA/15369/2019 JUDGMENT registered post to the addressee and such presumption is raised irrespective of whether any acknowledgment due is received from the addressee or not. It is obvious that when the S. raises the presumption that the service shall be deemed to have been effected it means the addressee to whom the communication is sent must be taken to have known the contents of the document sought to be served upon him without anything more. Similar presumption is raised under illustration (f) to sec. 114 of the Indian Evidence Act whereunder it is stated that the court may presume that the common course of business has been followed in a particular case, that is to say, when a letter is sent by post by prepaying and properly addressing it the same has been received by the addressee. Undoubtedly, the presumptions both u/s. 27 of the General Clauses Act as well as under Section 1 14 of the Evidence Act are rebuttable but in the absence of proof to the contrary the presumption of proper service or effective service on the addressee would arise. In the instant case, additionally, there was positive evidence of the postman to the effect that the registered envelope was actually tendered by him to the appellant on 10.11.1966 but the appellant refused to accept. In other words, there was due service effected upon the appellant by refusal. In such circumstances, we are clearly of the view, that the High Court was right in coming to the conclusion that the appellant must be imputed with the knowledge of the contents of the notice which he refused to accept. It is impossible to accept the contention that when factually there was refusal to accept the notice on the part of the appellant he could not be visited with the knowledge of the contents of the registered notice because, in our view, the presumption raised u/s. 27 of the General Clauses Act as well as u/s. 114 of the Indian Evidence Act is one of proper or effective service which must mean service of everything that is contained in the notice. It is impossible to countenance the suggestion that before knowledge of the contents of the notice Page 14 of 18 Downloaded on : Sat Dec 14 12:10:45 IST 2019 C/SCA/15369/2019 JUDGMENT could be imputed the sealed envelope must be opened and read by the addressee or when the addressee happens to be an illiterate person the contents should be read over to him by the postman or someone else. Such things do not occur when the addressee is determined to decline to accept the sealed envelope. It would, therefore, be reasonable to hold that when service is effected by refusal of a postal communication the addressee must be imputed with the knowledge of the contents thereof and, in our view, this follows upon the presumptions that are raised u/s. 27 of the General Clauses Act, 1897 and sec. 114 of the Indian Evidence Act."
14. From the aforesaid observation made by the Honourable Supreme Court, it is clear that the where a document to be served by post, then unless a different intention appears, service shall be deemed to be effected by properly addressing, prepaying and posting it by registered post, a letter containing document, and unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post. Thus, presumption of due service or proper service is raised if the document sought to be served is sent by properly addressing, prepaying and posting by registered post to the addressee and such presumption is raised irrespective of whether any acknowledgment is received from the addressee or not. Thus, even this decision would not render any assistance to the petitioner and on the contrary, it would be helpful to the respondents.
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15. In the case of Tarlochan Dev Sharma vs. State of Punjab and others (supra), the Honourable Supreme Court has observed in Paragraph7 as under:
"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. Therefore, a case of availability of a ground squarely falling within sec. 22 of the Act must be clearly made out. A President may be removed from office by the State Government, within the meaning of S.22, on the ground of "abuse of his powers" (of President), inter alia. This is the phrase with which we are concerned in the present case."
16. From the aforesaid decision, it can be said that once the person is elected to an office in a democratic institution, he is entitled to hold the office for the term for which he is elected unless the election is set aside by the procedure known to law. At this stage, Section 86(1) of the Act is required to be referred and the same provides as under:
"86. Leave of absence.(1) Any member of a Page 16 of 18 Downloaded on : Sat Dec 14 12:10:45 IST 2019 C/SCA/15369/2019 JUDGMENT panchayat who, during his term of office
(a) is absence for more than three consecutive months from the district, unless leave not exceeding four months so to absent himself has been granted by the panchayat.
(b) absents himself from four consecutive meetings of the panchayat without the leave of the said panchayat.
shall cease to be a member and his office shall be vacant and thereupon the panchayat shall, as soon as may be, inform him that the vacancy has occurred."
Thus, the law provides that any member of Panchayat absents himself for four consecutive meetings without leave of the said Panchayat, shall cease to be a member. In the present case, the petitioner has remained absent in four consecutive meetings of the Panchayat, therefore, the provisions contained in Section 86(1) of the Act would be applicable and, therefore, it cannot be said that the petitioner has been removed without following procedure of law. Thus, the aforesaid decision would not render any assistance to the petitioner.
17. Similar view is taken by the Honourable Supreme Court in the cases of Sharda Kailash Mittal vs. State of Madhya Pradesh and others (supra) and Ravi Yaswant Bhoir vs. District Collector, Raigad and others (supra).
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18. In view of the aforesaid discussion, this Court is of the view that the decisions, upon which, reliance is placed by the learned advocate for the petitioner would not render any assistance to him.
19. Thus, from the material placed on record, the contention raised by the petitioner cannot be accepted. The petitioner did not remain present in the four consecutive meetings of the District Panchayat and, therefore, the Showcause Notice was issued to the petitioner under Section 86 of the Act and after considering the reply submitted by the petitioner and after giving an opportunity of hearing, the District Panchayat passed a resolution while exercising powers under Section 86 of the Act. Respondent No.1 has also considered all the relevant aspects and, thereafter, dismissed the dispute application submitted by the petitioner. This Court has gone through the reasoning recorded by respondent No.1 and this Court is of the view that no error is committed by respondent No.1 while passing the impugned order and, therefore, no interference is required in the present petition. Accordingly, the petition is dismissed. In view of the dismissal of the main petition, Civil Applications do not survive and are disposed of, as such.
(VIPUL M. PANCHOLI, J) piyush Page 18 of 18 Downloaded on : Sat Dec 14 12:10:45 IST 2019