Gujarat High Court
Shivangiben Chetankumar Patel vs State Of Gujarat & 13 on 3 April, 2017
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/2508/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2508 of 2017
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SHIVANGIBEN CHETANKUMAR PATEL....Petitioner(s)
Versus
STATE OF GUJARAT & 13....Respondent(s)
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Appearance:
MR SN SHELAT, SENIOR ADVOCATRE with MR VIKAS V NAIR, ADVOCATE
for the Petitioner(s) No. 1
C J GOGDA, ADVOCATE for the Petitioner(s) No. 1
MS MANISHA L SHAH, GOVERNMENT PLEADER for the Respondent(s) No.
1
MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 2 - 3
MR DHAVAL DAVE, SENIOR ADVOCATE with MR ABHISHEK MEHTA and
MR DHRUV DAVE, ADVOCATES for the Respondent(s) No. 4-14
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 03/04/2017
ORAL ORDER
1. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs: "a. YOUR LORDSHIPS may be pleased to admit and allow the present petition;
b. YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the communication dated 10/2/17 at Page 1 of 50 HC-NIC Page 1 of 50 Created On Sun Aug 13 15:29:05 IST 2017 C/SCA/2508/2017 ORDER Annexure E and further be pleased to declare the action of the respondent authority issuing the notice for convening the meeting as unconstitutional and ultra vires Article 14, 16 and 243 of the Constitution of India and Gujarat Panchayat Act;
c. YOUR LORDSHIPS may be pleased to issue a writ of prohibition or a writ in the nature of prohibition, and any other appropriate writ, order or direction, prohibiting the Sankheda Gram Panchayat from convening the meeting pursuant to requisition dated 25.01.2017.
d. Pending the admission and final hearing of the petition, YOUR LORDSHIPS may be pleased to stay the further proceedings pursuant to the communication dated 25.01.2017.
e. Adinterim reliefs in terms of para (d) may kindly be granted;
f. ... ... ..."
2. It deserves to be noted that other members of the Gram Panchayat filed Civil Application no.2853 of 2017 for being joined as party respondents which was allowed by this Court vide order dated 20.2.2017 and the applicants therein have been added as party respondent nos.4 to 14.
3. The following facts emerge from the record of the petition: Page 2 of 50 HC-NIC Page 2 of 50 Created On Sun Aug 13 15:29:05 IST 2017 C/SCA/2508/2017 ORDER 3.1 That, the petitioner is the Sarpanch of Sankheda Gram Panchayat, District Chhota Udepur. The petitioner came to be elected as Sarpanch in the elections that were held on 27.12.2016 and the petitioner was declared elected on 29.12.2016. The record indicates that first meeting of the Panchayat was held on 16.1.2017 for the appointment of Upsarpanch. As averred in the petition, the second meeting was held on 24.1.2017 with the agenda of formation of Committees and other agenda and on the very next day i.e. on 25.1.2017, the Motion of No Confidence was moved by 11 members out of 14 members of Gram Panchayat on the reason that the Sarpanch would not be able to spare time for the functioning of the activities of the Gram Panchayat.
3.2 As averred in the petition, Gram Sabha which was held on 26.1.2017 rejected such motion. It is a matter of record that thereafter, the members i.e. the private respondents approached the competent authority for convening the meeting with the requisition for No Confidence Motion against the petitioner and on the basis of which, the impugned notice dated 10.2.2017 was issued and the meeting was convened on 17.2.2017. The present petition was filed on 13.2.2017 and this Court passed following order Page 3 of 50 HC-NIC Page 3 of 50 Created On Sun Aug 13 15:29:05 IST 2017 C/SCA/2508/2017 ORDER on 14.2.2017: "Heard Mr. Vikas V Nair, learned Advocate for the petitioner.
Mr. Nair has relied upon the judgment of the Apex Court rendered in the Case of Vipul Chaudhary Vs. State of Gujarat reported in AIR,2015(8)SCC 1, more particularly, Paragraphs 25 and 52. Considering the provisions of Section 56 of the Gujarat Panchayat Act, 1993, time limit to motion of no confidence is not provided.
Considering the above, Notice returnable on 16.02.2017. Mr. Janak Raval, learned Assistant Government Pleader waives service of notice for respondent No.1.
Direct Service for respondent nos.2 and 3 is granted. Ad interim relief in terms of paragraph 8 (d), till the returnable date."
4. Heard Mr. S.N. Shelat, learned Senior Advocate with Mr. Vikas Nair for the petitioner, Ms. Manisha L. Shah, learned Government Pleader for respondent no.1, Mr. H.S. Munshaw, learned advocate for respondent nos.2 and 3 and Mr. Dhaval Dave, learned Senior Advocate with Mr. Abhishek Mehta and Mr. Dhruv Dave, learned advocates for respondent nos. 4 to 14.
5. Mr. S.N. Shelat, learned Senior Advocate for Page 4 of 50 HC-NIC Page 4 of 50 Created On Sun Aug 13 15:29:05 IST 2017 C/SCA/2508/2017 ORDER the petitioner has taken this Court through the factual matrix as noted hereinabove and has raised following contentions: 5.1 That, exercise of power passing of vote of No Confidence against the Sarpanch immediately after the first meeting is irrational, unreasonable and violative of Article 14 of the Constitution of India.
5.2 It was contended that the petitioner is not challenging the validity of the Act, but mode of exercise of powers by members of the Panchayat cannot be considered after a reasonable period of time.
5.3 Referring to Articles 243(b)(d), 243A, 243B, 243C, 243D, 243E, 243F and 243G of the Constitution of India, it was contended that the Gujarat Panchayats Act, 1993 (hereinafter referred to as "the Act") in State of Gujarat was enacted to bring the same in confirmity with the constitutional amendments.
5.4 Relying upon the scheme of the Act, more particularly Sections 4, 5, 9, 13, 30, 51, 53, 55, 56, 57 and 61, it was contended by the learned Senior Advocate for the petitioner that the object behind No Confidence Motion is accountability and transparency, in view of Page 5 of 50 HC-NIC Page 5 of 50 Created On Sun Aug 13 15:29:05 IST 2017 C/SCA/2508/2017 ORDER functions assigned to him under the Act. It was contended that the other object is that the person or the pubic body should have confidence of the persons who comprise of such body. However, it was contended that while exercising the powers by the members of the Panchayat, it is required to be considered that the stability and dignity of local self Government is not undermine and that there is no institutional set back or impediment to the continuity or stability to the Panchayat. Therefore, if at the very second meeting, No Confidence Motion is permitted to be moved, the same will not be in harmony and consonance with the object as indicated.
5.5 It was contended that the transparency and accountability can only be assessed only after the Sarpanch functions under Section 55 of the Act and till then, there is no opportunity to find out as to any of his action suffers from accountability and transparency or that it is not in the interest of the Panchayat.
5.6 It was contended that the provisions of Section 57 of the Act can be followed only in the event of misconduct or any disgraceful conduct and in view of the aforesaid submission, it would be reasonable for this Court to assess the exercise of powers in the second meeting Page 6 of 50 HC-NIC Page 6 of 50 Created On Sun Aug 13 15:29:05 IST 2017 C/SCA/2508/2017 ORDER otherwise the power may not become arbitrary.
5.7 It was contended that Section 56 of the Act does not provide for any time limit. It was also contended that it is absolute in terms that would not prevent this Court to consider as to whether the power has been exercised in reasonable time as it brings from the principle of accountability as well as transparency and therefore, it was submitted that exercise of power of No Confidence Motion at the second meeting is not justified and is in breach of Article 14 of the Constitution of India.
5.8 It was contended that the Court should also look to the other consequences which may flow from the vote of No Confidence, namely, that there is no disqualification and the petitioner can again contest election which may go on and ultimately, would result into disstability of the institution. It was contended that if members of the Panchayat do not get their own person as Sarpanch, such game will go on which may lead to unworkability and the concept of rationality can be evoked by the petitioner.
5.9 It was contended that if the respondents cannot remove Sarpanch only on accountability and misconduct more so when exercising functions under Section 55 of the Act, the object of Page 7 of 50 HC-NIC Page 7 of 50 Created On Sun Aug 13 15:29:05 IST 2017 C/SCA/2508/2017 ORDER democratic principle is not served and therefore, legislative dictionary itself provides some reasonable period for moving the No Confidence Motion. It was contended that the Court is not adding anything. However, the principle of rationality versus arbitrariness provided under Article 14 of the Constitution of India can be provided for.
5.10 The judgments relied upon and cited by Mr. Shelat, learned Senior Advocate for the petitioner are separately dealt with.
5.11 It was therefore submitted by Mr. Shelat that the present petition requires consideration as prayed for.
6. Per contra, Ms. Manisha L. Shah, learned Government Pleader has contended as under: 6.1 It was contended that the ratio laid down by the Hon'ble Apex Court in the case of Vipulbhai M. Chaudhary Vs. Gujarat Cooperative Milk Marketing Federation Limited & Ors., AIR 2015 SC 1960 would not apply to the case of a Panchayat. It was contended that in Gujarat Cooperative Societies Act, 1961, there is no provision for No Confidence, whereas in the Panchayats Act, there is a specific provision Page 8 of 50 HC-NIC Page 8 of 50 Created On Sun Aug 13 15:29:05 IST 2017 C/SCA/2508/2017 ORDER and such provision has to be given full force.
6.2 It was contended that out of 14 members of the Gram Panchayat, 11 members have moved the Motion of No Confidence and therefore, the democratic process gets into full importance and it is a matter of record that 11 such members does not command confidence in the petitioner as Sarpanch.
6.3 It was submitted that the legislature in its wisdom provided for Section 56 of the Act and only conditions therein are to be fulfilled. It was contended that the power to elect is coupled with power to recall and therefore, as per the provisions of Section 56 of the Act, the same would amount to expression of will of the people.
6.4 It was contended that by 73rd Amendment in the Constitution, the purpose was to give maximum power to the local selfGovernment. It was contended that the State is only the facilitator. It was also contended that the Sarpanch must command confidence of people and when is voted out with twothird members, the same goes to show that the confidence is lost. It was contended that entirely, the scheme of the Act focuses on the function as a Sarpanch who has to lead the way. It was submitted that Page 9 of 50 HC-NIC Page 9 of 50 Created On Sun Aug 13 15:29:05 IST 2017 C/SCA/2508/2017 ORDER the functions as provided in Schedule1 are the duty which is cast and no motive or reason is necessary to be given. It was also contended that No Confidence Motion is not a removal, but is loss of confidence which is part of the democratic process.
6.5 It was contended that in various provisions of other Acts, legislature has kept silent and Motion of No Confidence can be moved any time. It was contended that reading of reasonable period is impermissible when the statute is unequivocal.
6.6 It was further contended that Section 56 of the Act contains inbuilt safeguard as provided therein.
6.7 It was also contended that the Sarpanch ought to have confidence of the members of the Panchayat who represent the people at large and if confidence is lost, none of the projects would go ahead and the grants which are given by the State would not be utilized and therefore, it was contended that No Confidence Motion is legal and proper and no interference is called for by this Court and the petition is misconceived and is filed only with a view to stall No Confidence Motion.
Page 10 of 50HC-NIC Page 10 of 50 Created On Sun Aug 13 15:29:05 IST 2017 C/SCA/2508/2017 ORDER 6.8 The judgments relied upon and cited by Ms. Manisha Shah, learned Government Pleader for the State are separately dealt with.
7. Mr. H.S. Munshaw, learned advocate for respondent no.3 has adopted the arguments of Ms. Manisha L. Shah, learned Government Pleader for the State.
8. Mr. Dhaval Dave, learned Senior Advocate for respondent nos.4 to 14 contended as under: 8.1 That, the challenge in the present petition is to stall No Confidence Motion of the Gram Panchayat on two folds. It was contended that the first fold thereof which is specifically pleaded in the petition is to the effect that in view of the judgment of the Apex Court in the case of Vipulbhai M. Chaudhary (supra), the minimum period of 2 years is to be read in Section 56 of the Act so as to convey that till such period is over from the date of assumption of the office by the Sarpanch of a Gram Panchayat, the Motion of No Confidence against the Sarpanch under Section 56 of the Act is not permissible. It was contended that it is canvassed in the petition that since the said minimum period of 2 years is not completed in case of the petitioner from the date of the office, the same requires to be curbed at the Page 11 of 50 HC-NIC Page 11 of 50 Created On Sun Aug 13 15:29:05 IST 2017 C/SCA/2508/2017 ORDER threshold without permitting the same to travel further in the manner envisaged by Section 56 of the Act.
8.2 It was second fold of the argument made during the course of hearing of the petition that too, without there being such foundation of the same in the petition to the effect that the petitioner had hardly any occasion to discharge his duties as a Sarpanch, the said No Confidence Motion is moved on 25.1.2017 after first meeting was held.
8.3 It was contended that the petitioner wants this Court to read into Section 56 of the Act, the expiry of minimum period of 2 years from the date of assumption of the office by the Sarpanch of the Gram Panchayat as a pre requisite for moving a Motion of No Confidence under Section 56 of the Act and thereby, the petitioner wants this Court to invoke the principle of reading into governing the field of interpretation of statutes.
8.4 It was contended that there is no occasion to consider the need for the application of the principle of reading into governing the field of interpretation of statutes as the question of applying such principle of "reading into" as also the principle of "reading down" in respect Page 12 of 50 HC-NIC Page 12 of 50 Created On Sun Aug 13 15:29:05 IST 2017 C/SCA/2508/2017 ORDER of any statutory provision would arise only when the vires of a statutory provision is challenged and in order to sustain the vires thereof, the Court finds the need to read into or read down something in concerned statutory provision. It was therefore contended that in absence of any challenge to the validity of a statutory provision, there is no reason to consider invoking the application of the principle of reading into and reading down. It was contended that the petitioner has not challenged the vires of Section 56 of the Act and therefore, such principle cannot be applied in the instant case. Mr. Dave has relied upon the judgment of the Apex Court in the case of Namit Sharma v. Union of India, (2013) 1 SCC 745 to buttress his argument as well as the judgment of Union of India v. Namit Sharma in review reported in (2013) 10 SCC 359. Relying upon the said judgments, it was contended that as held by the Apex Court in the case of Namit Sharma (supra), the point to be emphasized is that reading into or reading down governing the field of interpretation of statutes is to be invoked only when the validity of a statutory provision is at stake and it is possible to uphold the validity thereof by applying such principles. It was contended that even in the same judgment in review, it is clearly held by Page 13 of 50 HC-NIC Page 13 of 50 Created On Sun Aug 13 15:29:05 IST 2017 C/SCA/2508/2017 ORDER the Apex Court that the principle of reading into is not meant for providing something into a statutory provision, which the legislature has intended not to provide. It was therefore contended that the legislative redrafting of a statutory provision should not be resorted to under the guise of applying the principle of reading into or reading down. It was further contended that the Apex Court has also decided the very issue in the case of Bharat Aluminum Company v. Kaiser Aluminum Technical Services Inc., (2012) 9 SCC 552.
8.5 It was further contended that to provide the expiry of minimum period of 2 years from the date of assumption of office by Sarpanch as a prerequisite for moving a Motion of No Confidence under Section 56 of the Act, would amount to providing something as an integral part thereof which the legislature has thought of not providing in its wisdom.
8.6 It was contended that even in the case of Bhanumati & others v. State of Uttar Pradesh, (2010) 12 SCC 1, the Hon'ble Supreme Court has rejected the challenge, whereby an amendment was made reducing the period from 2 years to 1 year on the premise that such a provision would militate against the concept of Panchayati Raj Page 14 of 50 HC-NIC Page 14 of 50 Created On Sun Aug 13 15:29:05 IST 2017 C/SCA/2508/2017 ORDER and the continuity.
8.7 It was further contended that reliance placed for by the petitioner upon the judgment of Vipulbhai M. Chaudhary (supra) is wholly misconceived and there is no reason in the said judgment suggesting that expiry of minimum period of 2 years from the date of assumption of office by the Sarpanch is required to be construed as prerequisite for moving a Motion of No Confidence. It was contended that in Gujarat Cooperative Societies Act, 1961, there is no provision for a Motion of No Confidence and the Hon'ble Supreme Court, in exercise of its preliminary jurisdiction, mandated to read even for No Confidence Motion in the Central and the State legislations governing the Cooperative Societies, if such provision is otherwise found not to be there till the legislation is suitably amended by the concerned legislatures. It was contended that in the said judgment, there are two eye catching facets. Firstly, the mandate of reading into emanating therefrom applies to only Cooperative Societies and not to other bodies and secondly, the emphasis in the judgment is on the provision for No Confidence rather than the period mentioned therein as prerequisite for No Confidence Motion. It was further contended that if the emphasis in the Page 15 of 50 HC-NIC Page 15 of 50 Created On Sun Aug 13 15:29:05 IST 2017 C/SCA/2508/2017 ORDER judgment was on the requirement of some period as a prerequisite rather than the provisions for No Confidence, the direction would have been to the effect that if there existed any legislation on cooperative societies providing for No Confidence Motion with either no period or different period as prerequisite for moving a Motion of No Confidence, the same should be read down read into, as minimum period of 2 years from the date of assumption of office as a prerequisite. It was contended that the period provided in the said judgment is not to disturb the legislations on cooperative societies providing for No Confidence Motion with either no period or different period as a prerequisite and therefore, it was contended that the said judgment does not assist the petitioner for invoking the principle of reading into with reference to Section 56 of the Act. It was further contended that Section 56 of the Act is provided for in the Act after 73rd Amendment to the Constitution, which clearly shows that while giving shape of the constitutional mandate to the Panchayats, legislature in its wisdom thought it fit not to provide for any period in Section 56 of the Act as a minimum period for moving a No Confidence Motion.
8.8 It was contended that the contention of the Page 16 of 50 HC-NIC Page 16 of 50 Created On Sun Aug 13 15:29:05 IST 2017 C/SCA/2508/2017 ORDER petitioner that No Confidence Motion is irrational is also misconceived and as such, is wholly premature apart from being misconceived. It was contended that the petitioner will have an audience under Section 56(3) of the Act as ruled by this Court in the case of Geeta Bharatbhai Patel, 2006 (1) GLH 91 and the petitioner will have an opportunity to convince the members that No Confidence Motion moved against her is without any basis or nexus with the object of Section 56 of the Act and till such exercise is done, it is premature to look into the issue. It was also contended that the said contention is wholly devoid of substance as the Motion of No Confidence contemplated by Section 56(1) of the Act is based on subjective satisfaction of the members to be considered objectively in the concerned meeting under Section 56(3) of the Act and in such situation, it cannot be said that Motion of No Confidence is irrational with no nexus with object for which Section 56 of the Act was enacted. It was further contended that hence, the contention that the same would hit by Article 14 of the Constitution of India is also devoid of any substance.
8.9 Mr. Dave further submitted that when the concept of No Confidence is held to be an Page 17 of 50 HC-NIC Page 17 of 50 Created On Sun Aug 13 15:29:05 IST 2017 C/SCA/2508/2017 ORDER integral part of any body wedded to the democratic set up and norm under the Constitution of India, any attempt on the part of the petitioner to throttle the process of Motion of No Confidence would amount to working against the principles of democratic set up and norm.
8.10 The judgments relied upon and cited by Mr. Dave, learned Senior Advocate for the private respondents are separately dealt with.
8.11 Mr. Dave therefore contended that the petition deserves to be rejected as prayed for.
9. Mr. Shelat, learned Senior Advocate for the petitioner in further reply contended that the petitioner does not challenge validity of the Section and she neither wants to read into or read down the Section.
9.1. It was contended that as such there is no affidavit to counter the contentions raised by the petitioner and the main argument is that no judicial review is permissible is a fallacious argument. It was contended that this Court cannot be deprived of jurisdiction to judicially examine the matter if the case is made out.
Page 18 of 50HC-NIC Page 18 of 50 Created On Sun Aug 13 15:29:05 IST 2017 C/SCA/2508/2017 ORDER 9.2 It was further contended that this Court can examine the exercise of power under the doctrine of judicial review. It was submitted that power has to be exercised reasonably and it cannot be contrary to the spirit of rule. It was further contended that it may not be contrary as a result of malice in law. It was further contended that if the Act prescribes for time, the Court has jurisdiction to direct that it should be in exercise rationally and if the section is silent, the Court can on the principle of rationality examine the same.
9.3 It was contended that therefore, in facts of the present case, it has not been exercised irrationally resulting into arbitrary, legal, malafide and contrary to the spirit of law. It was contended that the object has to be accountability, transparency, dignity of Panchayati Raj institution, as local self Government institution and it would bring about institutional destabilization set back. Relying upon the judgment of the Apex Court in the case of Mohan Lal Tripathi v. District Magistrate, AIR 1993 SC 2042, it was contended by Mr. Shelat that exercise of No Confidence Motion in the very second meeting of the Panchayat shows that such factors are not present in the present case. It was contended that nothing was done and fresh elections to be conducted would Page 19 of 50 HC-NIC Page 19 of 50 Created On Sun Aug 13 15:29:05 IST 2017 C/SCA/2508/2017 ORDER lead to uncertainty and impediment to continuity of Panchayat and therefore, it was contended that this Court has jurisdiction to accept the said contention. It was contended that even if the legislature says any time, it has to be considered within reasonable time without being subject matter of legislation. Mr. Shelat has also relied upon and referred to the judgment of the Apex Court in the case of B.P. Singhal v. Union of India & Anr., (2010) 6 SCC 331, and in the case of Chairman, Indore Vikas Pradhikaran v. M/s. Pure Industrial Cock & Chem. Ltd. & Ors., AIR 2007 SC 2458 and has contended that the motion is arbitrary in nature as it is brought in the second meeting.
9.4 Mr. Shelat has given a list of comparison of provision in Panchayats Act of 17 States as regards provision of No Confidence. Mr. Shelat, reiterating his contentions, contended that the petition deserves to be considered and allowed as prayed for.
10. No other or further contentions and/or submissions are made by the learned advocates appearing for the respective parties.
11. Before considering the submissions made by the learned advocates appearing for the respective Page 20 of 50 HC-NIC Page 20 of 50 Created On Sun Aug 13 15:29:05 IST 2017 C/SCA/2508/2017 ORDER parties, it would be appropriate to refer to Section 56 of the Act, which provides as under: "56.(1) Any member who intends to move a motion of no confidence against the Sarpanch or the Upa Sarpanch may give notice thereof in the prescribed form to the panchayat concerned. If the notice is supported by one half of the total number of members of the panchayat concerned, the motion may be moved.
(2) Where in the case of the Sarpanch or, as the case may be, the Upa Sarpanch, the motion is carried by a majority of not less than twothirds of the total number of the members of the panchayat, the Sarpanch or, as the case may be, the UpaSarpanch shall cease to hold office after a period of three days from the date on which the motion is carried unless he has resigned and the resignation has become effective earlier; and thereupon the office held by him shall be deemed to have become vacant.
(3) Notwithstanding anything contained in this Act or the rules made thereunder a Sarpanch or, as the case may be, an UpaSarpanch, shall not preside over a meeting in which a motion of no confidence is discussed against him, but he shall have a right to speak or otherwise to take part in the proceedings of such a meeting (including the right to vote.).
Page 21 of 50HC-NIC Page 21 of 50 Created On Sun Aug 13 15:29:05 IST 2017 C/SCA/2508/2017 ORDER (4) When the offices of both the Sarpanch and UpaSarpanch become vacant simultaneously, such Officer as the Taluka Development Officer may authorise in this behalf shall, pending the election of the Sarpanch, exercise all the powers and preform all the functions and duties of Sarpanch but he shall not have the right to vote in any meetings of the panchayat.
(5)(a) Notwithstanding anything contained in section 91 or 95 a meeting of the panchayat for dealing with a motion of no confidence under this section shall be called within a period of fifteen days from the date on which the notice of such motion is received by the panchayat;
(b) If the Sarpanch fails to call such meeting, the Secretary of the panchayat shall forthwith make a report thereof the competent authority and thereupon the competent authority shall call a meeting of the panchayat within a period of fifteen days from the date of the receipt of the report."
12. Reliance was placed upon the judgment of the Apex Court in the case of Chairman, Indore Vikas Pradhikaran (supra) and more particularly Paragraphs 16 to 18 thereof. However, the observations made therein are in context with the provisions of Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam and the same would not be applicable to the present case in view of clearcut provision of Section 56 of the Act.
Page 22 of 50HC-NIC Page 22 of 50 Created On Sun Aug 13 15:29:05 IST 2017 C/SCA/2508/2017 ORDER Reference was also made to the judgment of the Apex Court in the case of B.P. Singhal (supra). The allegations made in this petition do not even remotely constitute any malafides which are not even alleged and in light of the provisions of Section 56 of the Act, the proposed action is to examine whether the petitioner as a Sarpanch has continued confidence of the majority of the members as representative of the people at large or not as the captain of the team.
12.1 Reliance was also placed on the judgment of the Apex Court in the case of Rattan Chand Hira Chand v. Askar Nawaz Jung (since decease) through his LRs & Ors., 1991 (1) GLH 547. However, in light of the provisions of Section 56 of the Act, which does not provide for any period though enacted after 73rd Amendment to the Constitution and therefore, no gap is required to be bridged by this Court and in exercise of powers conferred under Article 226 of the Constitution of India, the same cannot be added by this Court as the same would amount to legislating.
12.2 Reliance placed on the judgment in the case of Tassadiq Hussain v. Mohd. Rashid Qureshi & Ors., (2010) 13 SCC 787, with respect, would Page 23 of 50 HC-NIC Page 23 of 50 Created On Sun Aug 13 15:29:05 IST 2017 C/SCA/2508/2017 ORDER not apply to the case on hand.
12.3 Reliance upon the judgment of the Apex Court in the case of B.P. Singhal (supra), it was contended that the decision for removal, if taken on unreasonable ground, would be arbitrary and capricious and/or malafide which is open to judicial review. In the instant case, the notification of No Confidence is challenged and considering the provisions of Section 56 of the Act, if majority of the members of the Gram Panchayat have expressed to move a Motion of No Confidence against the petitioner - Sarpanch as per subsection (3) of Section 56 of the Act, there is inbuilt mechanism, whereby the petitioner can even explain while exercising her right to speak at the meeting and convince the members not to move such a Motion of No Confidence and to distort confidence in her. Hence, considering the extent and depth of judicial review in facts of this case, though may be available, it cannot be said that such exercise is arbitrary, capricious or unreasonable.
12.4 On similar lines, reliance was placed upon the judgment in the case of Brij Lal (Dead) by LRs. & Ors. v. State of Haryana & Ors., (2007) 14 Page 24 of 50 HC-NIC Page 24 of 50 Created On Sun Aug 13 15:29:05 IST 2017 C/SCA/2508/2017 ORDER SCC 332, wherein the Hon'ble Supreme Court has observed that the expression "at any time" as provided under Section 18(6) of the Haryana Ceiling on Land Holdings Act, 1972 is to be read as a reasonable time. With respect, the said observation is made in context with the factual background that the action sought to be taken after a long passage of time and in that context, it is provided that any time has to be read as a reasonable time. However, considering the provisions of Section 56 of the Act, the said judgment would not also take the case of the petitioner any further.
12.5 Reliance was also placed for on the judgment of the Apex Court in the case of Digvijay Mote v. Union of India & Ors., (1993) 4 SCC 175 and more particularly, Paragraph 13 thereof. However, it deserves to be noted that as provided under Section 56 of the Act itself, the petitioner has still to exercise her rights of audience at the meeting and therefore, it cannot be said that one of the checks which were referred to by the Apex Court as a natural justice is not provided and in facts of this case, this judgment is also not applicable.
12.6 Reliance placed for in the case of State of Uttar Pradesh & Ors. v. Luxmi Kant Shukla, Page 25 of 50 HC-NIC Page 25 of 50 Created On Sun Aug 13 15:29:05 IST 2017 C/SCA/2508/2017 ORDER (2011) 9 SCC 533, with respect, would not apply to the case on hand.
12.7 Reliance was also placed on the judgment of the Hon'ble Apex Court in the case of The Government of India v. The Citedal Fine Pharmaceuticals, Madras and others etc., AIR 1989 SC 1771. The Hon'ble Apex Court has examined the vires of Rule 12 of the Medicinal and Toilet Preparations (Excise Duties), Rules, wherein in Paragraphs 5 and 6, the Hon'ble Apex Court has considered the reasonable time for exercise of powers under Rule 12 of the said Rules. However, considering the provisions of Section 56 of the Act, the ratio laid down by the Hon'ble Apex Court would not be applicable as the same was in totally a different context.
12.8 Section 56 of the Act is clear and unambiguous and nothing can be added by this Court and therefore, in facts of this case the ratio laid down in the case of State of Himachal Pradesh v. Pawan Kumar, AIR 2005 SC 2265 will not be applicable.
12.9 It would also be appropriate to refer to the judgment of the Hon'ble Apex Court in the case of Bhanumati & others (supra), which in fact is relied upon by all the learned counsel, wherein the Hon'ble Apex Court has considering and Page 26 of 50 HC-NIC Page 26 of 50 Created On Sun Aug 13 15:29:05 IST 2017 C/SCA/2508/2017 ORDER referring to the judgment in the case of Ram Beti v. District Panchayat Raj Adhikari, (1988) 1 SCC 680 and Mohan Lal Tripathi (supra), observed as under: "8. The learned counsel further urged that such amendment has been made in total contravention of the principle enshrined in Part IX of the Constitution. It was urged that Part IX of the Constitution provides for a three tire structure of Panchayat administration and the reasons for such a three tire is to minimize the scope of executive interference. It was urged if the Pradhan or Pramukh of the unit of governance in Panchayat is, for any reason, removed or disqualified, from running the administration, the uppradhan or the uppramukh, prior to such amendment could have taken over, whereas the abolition of those offices will pave the way of executive interference.
12. Prior to the Constitution (73rd Amendment) Act, 1992, the Constitutional provisions relating to Panchayat was confined to Article 40. Article 40, one of our Directive Principles, runs as under:
"40. Organization of village Panchayats The State takes steps to organize village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self government."
14. The word 'Panchayat' did not even once appear in the draft Page 27 of 50 HC-NIC Page 27 of 50 Created On Sun Aug 13 15:29:05 IST 2017 C/SCA/2508/2017 ORDER Constitution. Graneville Austin in his treaties 'Indian Constitution:
Corner Stone of a Nation' (Oxford) noted that the drafting Committee did not even discuss in its meetings the alternative principles of Gandhian view of panchayat. The draft Constitution was published on 26th February, 1948. (See page 34 in Austin)
40. In the background of these provisions, learned counsel for the appellants argued that the provision of noconfidence, being not in Part IX of the Constitution is contrary to the Constitutional scheme of things and would run contrary to the avowed purpose of Constitutional amendment which is meant to lend stability and dignity to Panchayati Institutions.
It was further argued that reducing the period from 'two years' to 'one year' before a noconfidence motion can be brought further unsettles the running of the Panchayat. It was further urged that under the impugned amendment that such a noconfidence motion can be carried on the basis of a simple majority instead of two thirds majority dilutes the concept of stability.
41. This Court is not at all persuaded to accept this argument on various grounds discussed below. A Constitution is not to give all details of the provisions contemplated under the scheme of amendment. In the said amendment, under various articles, like articles 243A, 243C(1),(5), 243D(4), 243X(6), 243F(1) (6), 243G, 243H, 243I(2), 243J, 243(K) (2), (4) of the Page 28 of 50 HC-NIC Page 28 of 50 Created On Sun Aug 13 15:29:05 IST 2017 C/SCA/2508/2017 ORDER Constitution, the legislature of the State has been empowered to make law to implement the Constitutional provisions.
48. he appellants have not challenged U.P. Act 20 of 1998 by which Section 15 of 1961 Act was continued in amended version. 66.Therefore, the continuance of noconfidence provision has not been challenged - what has been challenged is the reduction of the period from 'two years' to 'one year' and the requirement majority from "not less than twothirds" to "more than half". It is thus clear that the statutory provision of noconfidence is not contrary to Part IX of the Constitution.
51. Many issues in our constitutional jurisprudence evolved out of this doctrine of silence. The basic structure doctrine visà vis Article 368 of the Constitution emerged out of this concept of silence in the Constitution. A Constitution which professes to be democratic and republican in character and which brings about a revolutionary change by 73rd Constitutional amendment by making detailed provision for democratic decentralization and self Government on the principle of grass root democracy cannot be interpreted to exclude the provision of no confidence motion in the respect of the office of the Chairperson of the Panchayat just because of its silence on that aspect.
55. Going by the aforesaid tests, as we must, this Court does not find any Page 29 of 50 HC-NIC Page 29 of 50 Created On Sun Aug 13 15:29:05 IST 2017 C/SCA/2508/2017 ORDER lack of legislative competence on the part of the State Legislature in enacting the impugned amendment Act.
66. Democracy demands accountability and transparency in the activities of the Chairperson especially in view of the important functions entrusted with the Chairperson in the running of Panchayati Raj Institutions. Such duties can be discharged by the Chairperson only if he/she enjoys the continuous confidence of the majority members in the Panchayat. So any statutory provision to demonstrate that the Chairperson has lost the confidence of the majority is conducive to public interest and adds strength to such bodies of self Governance. Such a statutory provision cannot be called either unreasonable or ultra vires Part IX of the Constitution.
71. Upholding the aforesaid provision of noconfidence which is virtually a power of recall, this Court in Mohan Lal Tripathi (supra) held that the recall of the elected representative, so long it is in accordance with law, cannot be assailed on abstract laws of democracy. (Para 2, page 86 of the report)
73. In Ram Beti vs. District Panchayat Raj Adhikari & others [1998 (1) SCC 680] this Court has upheld the provisions of Section 14 of U.P. Panchayat Raj Act, 1947 as amended by U.P. Act No. 9 of 1994 which empowers members of the Gram Panchayat to remove the Pradhan of Gram Sabha by vote of noconfidence. This Court held that such a provision is not Page 30 of 50 HC-NIC Page 30 of 50 Created On Sun Aug 13 15:29:05 IST 2017 C/SCA/2508/2017 ORDER unconstitutional nor does it infringe the principle of democracy or provisions of Article 14. This decision was rendered in 1997, which is after the incorporation of Part IX of the Constitution.
74. In fact, in Ram Beti (supra), this Court considered the impact of 73rd Amendment and also took into consideration the provisions of Article 243N introduced by 73rd Amendment. The ratio in Mohan Lal Tripathi (supra) was also affirmed in Ram Beti (supra).
75. In the background of this admitted position, the argument that 2007 Amendment Act lacks legislative competence has no merit. The relevant legislative entry in respect of Panchayat is in Entry 5, list II of the 7th Schedule. The said entry is:
"5. Local Government, that is to say, the constitution and powers of municipal, corporations, improvement trusts, district boards mining settlement authorities and other local authorities for the purpose of local self Government or village administration."
76. It is well known that legislative entry is generic in nature and virtually constitutes the legislative field and has to be very broadly construed. These entries demarcate 'areas', 'fields' of legislation within which the respective laws are to operate and do not merely confer legislative power as much. The words in the entry should be held to extend Page 31 of 50 HC-NIC Page 31 of 50 Created On Sun Aug 13 15:29:05 IST 2017 C/SCA/2508/2017 ORDER to all ancillary and subsidiary matters which can be reasonably said to be encompassed by it. [See Hans Muller of Nurenburg vs. Superintendent, Presidency Jail, Calcutta and others, AIR 1955 SC 367; Navinchandra Mafatlal, Bombay vs. Commissioner of Income Tax, Bombay City, AIR 1955 SC 58, and also the decision of this Court rendered in Jilubhai Nanbhai Khachar etc. etc. vs. State of Gujarat and another reported in AIR 1995 SC 142 at 148].
86. Reliance was also placed on the Constitution Bench judgment of this Court in State of Gujarat vs. Mirzapur Moti Kureshi Kassab Jamat and Ors. - (2005) 8 SCC 534. Chief Justice Lahoti speaking for the Bench laid down in para 37, page 562 of the report that the legislature is in the best position to understand and appreciate the needs of the people as enjoined in the Constitution. The Court will interfere in legislative process only when the statute is clearly violative of the right conferred on a citizen under Part III or when the Act is beyond the legislative competence of the legislature. Of course the Court must always recognize the presumption in favour of the constitutionality of the statutes and the onus to prove its invalidity lies heavily on the party which assails it."
12.10 Even considering the ratio laid down in the case of Pratap Chandra Mehta v. State Bar Council of Madhya Pradesh & Ors., (2011) 9 SCC 573, the provision of Section 56 of the Act is Page 32 of 50 HC-NIC Page 32 of 50 Created On Sun Aug 13 15:29:05 IST 2017 C/SCA/2508/2017 ORDER not based on the aspects which are to be considered for removal of a person from the post of Sarpanch, but is based on no confidence and/or loss of confidence simplicitor wherein majority of the members have thought it fit to consider as per their wisdom that the elected Sarpanch has lost the confidence of majority of the members.
12.11 Reliance placed for by the learned Senior Advocate for the petitioner upon the judgment of the Apex Court in the case of State of Himachal Pradesh (supra) will not be applicable to the case on hand.
13. It is an admitted position that the Gujarat Panchayats Act, 1993 came to be enacted to bring the law relating to Panchayat in State of Gujarat in confirmity with Part IX of the Constitution. Section 56 of the Act clearly provides for Motion of No Confidence and the legislature has provided for the whole procedure of moving a Motion of No Confidence when a notice is supported by onehalf of the total members of Panchayat against the Sarpanch or Upsarpanch. Subsection (3) of Section 56 of the Act provides right of audience i.e. right to speak or otherwise to take part in the proceedings of such a meeting by the Sarpanch against whom No Confidence Motion is proposed Page 33 of 50 HC-NIC Page 33 of 50 Created On Sun Aug 13 15:29:05 IST 2017 C/SCA/2508/2017 ORDER to be moved. Considering the relevant dates in the case on hand, it is an admitted position that the elections were held on 27.12.2016 and the petitioner was declared as Sarpanch on 29.12.2016. It is also an admitted position that thereafter, the first meeting of the Panchayat was held on 16.1.2017 for appointment of Upsarpanch and the second meeting was held on 24.1.2017 for formation of Committees and other agenda. It is an admitted fact that out of 14 members of the Gram Panchayat, 11 members gave a notice for No Confidence Motion as prescribed under Section 56 of the Act and the impugned notice has been issued on 10.2.2017.
14. Mr. Dave is correct in saying that in the petition, the contentions are based on the ratio of the judgment of the Apex Court in the case of Vipulbhai M. Chaudhary (supra). It deserves to be noted that in the said case, Hon'ble Supreme Court has considered the provisions of the Gujarat Cooperative Societies Act, 1961, wherein there is no provision for No Confidence and in such circumstances, the Apex Court has observed thus: "25. No doubt, in the cases referred to above, the respective Acts contained a provision regarding no confidence. What about a situation where there is no express provision Page 34 of 50 HC-NIC Page 34 of 50 Created On Sun Aug 13 15:29:05 IST 2017 C/SCA/2508/2017 ORDER regarding no confidence? Once the cooperative society is conferred a constitutional status, it should rise to the constitutional aspirations as a democratic institution. So, it is for the respective legislative bodies to ensure that there is democratic functioning. When the Constitution is eloquent, the laws made thereunder cannot be silent. If the statute is silent or imprecise on the requirements under the Constitution, it is for the court to read the constitutional mandate into the provisions concerned and declare it accordingly. Article 243ZT has given a period of one year to frame/reframe the statues in consonance with Part IXB and thereafter, i.e., with effect from 12.01.2013, those provisions which are inconsistent with Part IXB, cease to operate.
53. The cooperative society registered under the Central or the State Act is bound to function as a democratic institution and conduct its affairs based on democratic principles. Democratic functioning on democratic principles is to be reflected in the respective Acts or Rules or Byelaws both on the principle and procedure. If not, it is for the court to read the democratic principles into the Act or Rules or Byelaws. If a procedure is prescribed in any Act or Rule or Byelaw regarding election of an office bearer by the Board, as defined under Article 243ZH(b) of the Constitution of India, and for removal thereof, by way of a motion of no confidence, the same procedure has to be followed. In case there is no express provision under Page 35 of 50 HC-NIC Page 35 of 50 Created On Sun Aug 13 15:29:05 IST 2017 C/SCA/2508/2017 ORDER the Act or Rules or Byelaws for removal of an office bearer, such office bearer is liable to be removed in the event of loss of confidence by following the same procedure by which he was elected to office.
54. Now that this Court has declared the law regarding the democratic set up of a cooperative society and that it is permissible to remove an elected office bearer through motion of no confidence, and since in many States, the relevant statutes have not carried out the required statutory changes in terms of the constitutional mandate, we feel it just and necessary to lay down certain guidelines. However, we make it clear that these guidelines are open to be appropriately modified and given statutory shape by the competent legislature/authority. Having gone through the provisions regarding motion of no confidence in local selfgovernments, we find that there is no uniformity with regard to the procedure and process regarding motion of no confidence. Some States provide for a protection of two years, some for one year and a few for six months, to the office bearers in office before moving a motion of no confidence. However, majority of the States provide for two years and a gap of another one year in case one motion of no confidence is defeated. Bihar Panchayat Raj Act, 2006 provides for a protection of two years and one year, Bihar Municipal Act, 2007 provides for a protection of two years and one year, Himachal Pradesh Panchayati Raj Act, 1994 provides for a protection of two years and two years, Madhya Pradesh Panchayat Raj Avam Gram Swaraj Page 36 of 50 HC-NIC Page 36 of 50 Created On Sun Aug 13 15:29:05 IST 2017 C/SCA/2508/2017 ORDER Adhiniyam, 1993 provides for a protection of two and a half years, Madhya Pradesh Municipalities Act, 1961 provides for a protection of two years and one year, Manipur Panchayati Raj Act, 1994 provides for a protection of two years and one year, Orissa Panchayat Samiti Act, 1959 provides for a protection of two years, Orissa Grama Panchayats Act, 1964 provides for a protection of two years, Punjab Panchayati Raj Act, 1994 provides for a protection of two years, Rajasthan Panchayati Raj Act, 1994 provides for a protection of two years and one year, Rajasthan Municipalities Act, 2009 provides for a protection of two years and Uttar Pradesh Panchayati Raj Act, 1947, as followed by Uttarakhand, provides for a protection of two years and one year. Having regard to the set up in local selfgovernments prevailing in many of the States as above, we direct that in the case of cooperative societies registered under any Central or State law, a motion of no confidence against an office bearer shall be moved only after two years of his assumption of office. In case the motion of no confidence is once defeated, a fresh motion shall not be introduced within another one year. A motion of no confidence shall be moved only in case there is a request from onethird of the elected members of the Board of Governors/Managing Committee of the cooperative society concerned. The motion of no confidence shall be carried in case the motion is supported by more than fifty per cent of the elected members present in the meeting."
Page 37 of 50HC-NIC Page 37 of 50 Created On Sun Aug 13 15:29:05 IST 2017 C/SCA/2508/2017 ORDER It deserves to be noted that there is no provision for no confidence in the Gujarat Cooperative Societies Act, 1961, whereas in the Panchayats Act, which is enacted by the State legislature to make the Panchayat law in consonance with the 73rd Amendment to the Constitution, Section 56 of the Act is provided for and in Paragraph 54, the Hon'ble Apex Court has observed that the direction is given in case of cooperative societies registered under any Central or State law and therefore, in such facts, the same analogy cannot be applied in case No Confidence Motion is moved by 11 members out of 14 members as in the instant case.
15. Whereas in the Act, there is a specific provision for No Confidence. As noted hereinabove, the Act came to be enacted to make the Panchayats Act in the laws relating to Panchayat in confirmity with Part IX of the Constitution of India being 73rd Amendment to the Constitution, wherein the legislature has thought it fit to provide for a specific provision for No Confidence Motion by onehalf of the principle. As noted hereinabove, in a house of 14 members of Sankheda Gram Panchayat, private respondent nos.4 to 14 being 11 members of the Panchayat have moved a Motion of No Confidence which is admittedly more than one Page 38 of 50 HC-NIC Page 38 of 50 Created On Sun Aug 13 15:29:05 IST 2017 C/SCA/2508/2017 ORDER half. Considering the provisions of Section 56 of the Act, the legislature has in its wisdom provided for a separate provision of Motion of No Confidence for removal of Sarpanch or Upsarpanch. Section 56 of the Act envisage the existence of confidence and/or No Confidence of the members of the Gram Panchayat and not other eventualities which would apply only in case of removal of office such as guilty of misconduct in discharge of duties or any disgraceful conduct or in the event of abuse of power or persistent default in performance of duties and functions as provided under Section 57 of the Act. In opinion of this Court, the provision of Section 56 of the Act speaks of No Confidence of the majority of the members of the house on Sarpanch and the same is distinct and separate from the provision of removal of office for the reasons which are provided in Section 57 of the Act. Therefore, as per the provisions of the Act, No Confidence Motion under Section 56 of the Act would not entail as a bare necessity, the factum of the Sarpanch having performed duties as provided under Section 55 of the Act read with Schedule1 thereto. In light of such provision, the legislature has thought it fit not to provide for any time limit for moving a Motion of No Confidence as the same clearly provides for that. A Motion of No Confidence can be moved against the Sarpanch by giving a Page 39 of 50 HC-NIC Page 39 of 50 Created On Sun Aug 13 15:29:05 IST 2017 C/SCA/2508/2017 ORDER notice in prescribed format to the Panchayat if such notice is supported by onehalf of the total members of the Panchayat. Therefore, the Act as such requires a notice which is supported by onehalf of the total members of the Panchayat and no other requirements much less requirement of any time lag is provided for. Therefore, the contention raised by the petitioner that No Confidence Motion can be moved only after some reasonable time and if moved at the second meeting, the same would be arbitrary and irrational, cannot be accepted in light of the clearcut provision of Section 56 of the Act. It is an admitted position that the petitioner has not challenged the vires of Section 56 of the Act and it is a matter of record that vires of the Act have been upheld by this Court in the case of Thakore Gandaji Chundaji and Ors. v. Secretary, Indrad Gram Panchayat and Ors. 2000 (2) GLH 758.
16. The Hon'ble Apex Court has considered the provisions of the Gujarat Cooperative Societies Act, 1961 and has made the aforesaid observations in light of the fact that no provision for No Confidence Motion is provided for. Therefore, in opinion of this Court, the ratio laid down by the Apex Court in the case of Vipulbhai M. Chaudhary (supra) will not be Page 40 of 50 HC-NIC Page 40 of 50 Created On Sun Aug 13 15:29:05 IST 2017 C/SCA/2508/2017 ORDER applicable to the present case. It is rightly contended that if the same is read into the provision of Section 56 of the Act, this Court would be adding something to the said section which the legislature in its wisdom has not provided for. The Hon'ble Supreme Court in the case of Vipulbhai M. Chaudhary (supra) has not observed that the time limit of 2 years is to be provided in every local self Government and as such Section 56 of the Act clearly provides for the whole procedure which is to be followed, wherein even the audience is given to the Sarpanch who has to face No Confidence Motion. This Court therefore in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India cannot read into such time limit as per Section 56 of the Act as canvassed by the learned Senior Advocate for the petitioner. The contention that the No Confidence Motion would result into dis stability or unworkability and that it is rational was raised though not specifically contended in the petition deserves to be negatived. When the Statute clearly provides for a provision of No Confidence Motion, wherein any period is not provided, it would be impermissible to read into the provision of Section 56 of the Act any reasonable period. In a democratic set up, confidence of majority of members for a harmonious working on the post of Page 41 of 50 HC-NIC Page 41 of 50 Created On Sun Aug 13 15:29:05 IST 2017 C/SCA/2508/2017 ORDER Sarpanch is a sine qua non. The members of the Panchayat represent the public of a Gram and they represent the whole village and therefore, a No Confidence Motion is moved and is to be considered in accordance with law. Only because it is moved after 2 meetings of the Panchayat were held, would not render it to be irrational, arbitrary or violative of Article 14 of the Constitution of India. It is no doubt true that the conditions which are provided for in Section 56 of the Act has to be fulfilled if the No Confidence Motion is moved. It deserves to be noted that for moving a Motion of No Confidence, the elements which are provided under Section 57 of the Act are not to be read into and transparency and accountability cannot be the sole consideration for exercise of right by the majority of the members under Section 56 of the Act as the same provides and relates to the confidence rather than functioning of the Sarpanch and confidence of the members and that too, majority is the backbone of any democratic office and therefore, when the legislative intention is looked at while appreciating the provisions of Section 56 of the Act, the legislature in its wisdom has not provided any time for proposing or giving a notice for No Confidence Motion. In facts of this case therefore, this Court cannot apply the principle of reading into the provision of Page 42 of 50 HC-NIC Page 42 of 50 Created On Sun Aug 13 15:29:05 IST 2017 C/SCA/2508/2017 ORDER Section 56 of the Act, which is otherwise not provided by the legislature which in facts and circumstances of a given case, can be done by this Court only when the Court has to examine vires of a provision to make it workable or viable and therefore, what is provided for by the Apex Court in the case of Vipulbhai M. Chaudhary (supra) is only provided for the cooperative societies which cannot be made applicable to the instant case, wherein the Act provides for a specific provision for No Confidence Motion in Section 56 of the Act and as the field is already occupied, this Court cannot read into in the reasonable period in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India and therefore, there cannot be any legal bar in giving a notice of No Confidence Motion as provided under Section 56 of the Act.
17. Considering the ratio laid down by the Hon'ble Apex Court in the cases of Namit Sharma v. Union of India (supra) and Union of India v. Namit Sharma (supra) (judgment in review), in light of the clearcut provision of Section 56 of the Act which in fact is enacted after 73rd Amendment the principles 'read into' or 'read down' cannot be applied in the present case, as admittedly even according to the learned Senior Page 43 of 50 HC-NIC Page 43 of 50 Created On Sun Aug 13 15:29:05 IST 2017 C/SCA/2508/2017 ORDER Advocate for the petitioner, it has been reiterated that vires are not challenged. In fact it deserves to be noted that vires of Section 56 of the Act were examined by the Hon'ble Division Bench of this Court in the case of Thakore Gandaji Chundaji and Ors. (supra) and the Hon'ble Division Bench of this Court has upheld the constitutional validity of the said provision relying upon the judgment of the Hon'ble Apex Court in the case of Mohan Lal Tripathi (supra) and Ram Beti (supra).
18. The learned Senior Advocate for the petitioner has also relied upon Sections 212 and 213 of the statutory interpretation 4th Edition by FAR. However, such fact situation does not arise in the present case, wherein Section 56 of the Act is clear and unambiguous. This Court, in exercise of powers conferred under Article 226 of the Constitution of India, cannot read down or read into.
19. Reference may be made to the judgment of the Hon'ble Apex Court in the case of Usha Bharti v. State of Uttar Pradesh & Ors., (2014) 7 SCC 663, wherein while examining the provisions of U.P. Kshetra Panchayats and Zila Panchayats Act, 1961, it is observed thus: Page 44 of 50 HC-NIC Page 44 of 50 Created On Sun Aug 13 15:29:05 IST 2017 C/SCA/2508/2017 ORDER "23. The whole debate in this case centres around Section 28, which provides for a Motion of No Confidence in Adhyaksha. The section provides detailed procedure with regard to the issuance of written notice of intent to make the motion, in such form as may be prescribed, signed by not less than onehalf of the total number of the elected members of the Zila Panchayat for the time being. Such notice together with the copy of the proposed motion has to be delivered to the Collector having jurisdiction over the Zila Panchayat. Therefore, the Collector shall convene a meeting of the Zila Panchayat for consideration of the motion on a date appointed by him which shall not be later than 30 days the date from which the notice was delivered to him. The Collector is required to give a notice to the elected members of not less than 15 days of such meeting in the manner prescribed. The meeting has to be presided over by the District Judge or a Civil Judicial Officer not below the rank of a Civil Judge.
Interestingly, the debate on the motion cannot be adjourned by virtue of provisions contained in Section 28(7). Subsection (8) further provides that the debate on the No Confidence Motion shall automatically terminate on the expiration of 2 hours from the time appointed for the commencement of the meeting, if it is not concluded earlier. Either at the end of 2 hours or earlier, the motion has to be put to vote. Further more, the Presiding Officer would be either District Judge or a Judicial Officer is not permitted to speak on the Page 45 of 50 HC-NIC Page 45 of 50 Created On Sun Aug 13 15:29:05 IST 2017 C/SCA/2508/2017 ORDER merits of the motion, and also not entitled to vote. Subsection (11) provides that "if the motion is carried with the support of (more than half) of the total number of (elected members) of the Zila Panchayat for the time being". In our opinion, the aforesaid provision contained in Section 28 is, in no manner, inconsistent with the provisions contained in Article 243N. To accept the submission of Mr. Bhushan of inconsistency would be contrary to the fundamental right of democracy that those who elect can also remove elected person by expressing No Confidence Motion for the elected person. Undoubtedly, such No Confidence Motion can only be passed upon observing the procedure prescribed under the relevant statute, in the present case the Act.
24. We are unable to accept the submission of Mr. Bhushan that removal of Adhyaksha can only be on the grounds of misconduct as provided under Section 29 of the Act. The aforesaid Section provides that a procedure for removing an Adhyaksha who is found guilty of misconduct in the discharge of his/her duties. This Section, in no manner, either overrides the provisions contained in Section 28 or is in conflict with the same.
30. We are also unable to agree with the submission of Mr. Bhushan that a person once elected to the position of Adhyaksha would be permitted to continue in office till the expiry of the five years terms, even though he/she no longer enjoys the Page 46 of 50 HC-NIC Page 46 of 50 Created On Sun Aug 13 15:29:05 IST 2017 C/SCA/2508/2017 ORDER confidence of the electorate. To avoid such catastrophe, a provision for noconfidence, as observed earlier, has been made in Section 28 of the Act. The extreme submission made by Mr. Bhushan, if accepted, would destroy the foundational precepts of democracy that a person who is elected by the members of the Zila Panchayat can only remain in power so long as the majority support is with such person.
31. We also do not find any merit in the submission of Mr. Bhushan that permitting the provision contained in Section 28 of the Act to remain on the statute book would enable the executive to deprive the elected representatives of their fundamental rights enshrined in Part III and Part IX of the Constitution of India. In our opinion, the ratio of the judgment in I.R.Coelho (supra) relied upon by Mr. Bhushan is wholly inapplicable in the facts and circumstances of this case. There is no interference whatsoever in the right of the electorate to choose. Rather Section 28 ensures that an elected representative can only stay in power so long as such person enjoys the support of the majority of the elected members of the Zila Panchayat. In the present case, at the time of election, the petitioner was the chosen one, but, at the time when the Motion of No Confidence in the petitioner was passed, she was not wanted. Therefore, the right to chose of the electorate, is very much alive as a consequence of the provision contained in Section 28."
Page 47 of 50HC-NIC Page 47 of 50 Created On Sun Aug 13 15:29:05 IST 2017 C/SCA/2508/2017 ORDER In the case on hand also, Section 56 of the Act clearly provides for a provision for Motion of No Confidence. An attempt was made by the learned Senior Advocate for the petitioner to contend that unless and until the petitioner as a Sarpanch is given an opportunity to perform the duties cast upon her under Section 55 of the Act read with Schedule1 of the Act, the grounds of removal from the post of Sarpanch on misconduct in discharge of her duties or the other eventualities which are provided by the Act in Section 57 of the Act would not arise. However, such fact situation does not arise in the present case. In the present case, the motion is moved under Section 56 of the Act which deals with no confidence of the majority of the members and as held by the Hon'ble Apex Court in the case of Usha Bharti (supra). A person who is elected can remain in office so long as the majority of the members has confidence in the petitioner as the head of the institution.
20. It is no doubt true that in other States, similar provision of time limit is prescribed by the respective legislatures ranging from 6 months to 4 years, however, as per Section 56 of the Act, no such time limit is prescribed which cannot be read into by this Court in exercise of its jurisdiction under Article 226 Page 48 of 50 HC-NIC Page 48 of 50 Created On Sun Aug 13 15:29:05 IST 2017 C/SCA/2508/2017 ORDER of the Constitution of India. It deserves to be noted that as per the said list provided by the learned Senior Advocate for the petitioner even in States of Assam, Goa, Tripura, no such time limit is prescribed and the said comparison is of no avail to the petitioner.
21. In light of the aforesaid therefore, considering the provisions of Section 56 of the Act and the facts arising in this petition, 11 members out of 14 members have given a notice for No Confidence, which cannot be held to be irrational or arbitrary or violative of Article 14 of the Constitution of India and as observed hereinabove, time limit as held by the Apex Court in the case of Vipulbhai M. Chaudhary (supra) cannot be read into by this Court in the instant case and therefore, the petition fails and is hereby rejected. The impugned notice shall stand revived. Respondent nos.2 and 3 shall take steps in accordance with law. Adinterim relief granted earlier stands vacated. There shall be no order as to costs.
(R.M.CHHAYA, J.) After the order was completed, Mr. Vikas Nair, learned advocate for the petitioner prays for stay of the order.
Page 49 of 50HC-NIC Page 49 of 50 Created On Sun Aug 13 15:29:05 IST 2017 C/SCA/2508/2017 ORDER In light of the aforesaid view taken by this Court, the request is rejected.
(R.M.CHHAYA, J) mrp Page 50 of 50 HC-NIC Page 50 of 50 Created On Sun Aug 13 15:29:05 IST 2017