Gujarat High Court
Shivangiben Chetankumar Patel vs State Of Gujarat on 9 May, 2018
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/LPA/543/2017 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 543 of 2017
In SPECIAL CIVIL APPLICATION NO. 2508 of 2017
With
CIVIL APPLICATION NO. 1 of 2017
With
CIVIL APPLICATION NO. 3 of 2017
With
R/LETTERS PATENT APPEAL NO. 1128 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 11504 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
=============================================
1 Whether Reporters of Local Papers may be allowed to see Yes
the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as Yes
to the interpretation of the Constitution of India or any
order made thereunder ?
=============================================
SHIVANGIBEN CHETANKUMAR PATEL
Versus
STATE OF GUJARAT
=============================================
Appearance in Letters Patent Appeal No.543 of 2017:
C J GOGDA(7488) for the PETITIONER(s) No. 1
MR SN SHELAT, SR. ADVOCATE WITH MR VIKAS V NAIR(7444) for the
PETITIONER(s) No. 1
MR PK JANI, ADDL. ADVOCATE GENERAL, MS. MANISHA SHAH, GP, MR.
UTKARSH SHARMA, AGP WITH MR KM ANTANI, AGP for the
RESPONDENT(s) No. 1
Page 1 of 63
C/LPA/543/2017 CAV JUDGMENT
MR MR DC DAVE, SR. ADVOCATE WITH MR DHRUV K DAVE(6928) for the
RESPONDENT(s) No. 10,11,12,13,14,4,5,6,7,8,9
MR HS MUNSHAW(495) for the RESPONDENT(s) No. 2,3
Appearance in Letters Patent Appeal No.1128 of 2017:
MR NISHIT P GANDHI, ADVOCATE FOR THE PETITIONER
MR RS SANJANWALA, SR. ADVOCATE WITH MS NIYATI K SHAH,
ADVOCATE FOR RESPONDENT NO.1
Appearance in Special Civil Application No.11504 of 2017:
MR RS SANJANWALA, SR. ADVOCATE WITH MS NIYATI K SHAH,
ADVOCATE FOR THE PETITIONER
MR HS MUNSHAW, ADVOCATE FOR RESPONDENT NO.1 AND 2.
MR. NISHIT P GANDHI, ADVOCATE FOR RESPONDENT NOS.3,5,7 TO 14.
=========================================
CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 09/05/2018
CAV JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY) [1] The Letters Patent Appeal No.543 of 2017 is filed by the appellant original petitioner, in Special Civil Application No.2508 of 2017, aggrieved by the order dated 03.04.2017 passed by the learned Single Judge. By the aforesaid order, the learned Single Judge dismissed the petition filed by the original petitioner. [1.1] The Special Civil Application was filed by the original petitioner under Article 226 of the Constitution of India with the prayers, which read as under : "8 (a). YOUR LORDSHIPS may be pleased to admit and allow the present petition;
Page 2 of 63 C/LPA/543/2017 CAV JUDGMENT
(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 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). Ad interim reliefs in terms of para (d) may kindly be granted;
f. ... ... ..."
[2] The appellant herein is elected as Sarpanch of Sankheda Gram Panchayat of District Chhota Udepur, in the election held on 27.12.2016. The appellant - original petitioner was declared elected on 29.12.2016. Electorate of election was, qualified voters of village Panchayat. First meeting of the Panchayat was held on 16.1.2017, in which, UpSarpanch was elected. Election of UpSarpanch is in direct Page 3 of 63 C/LPA/543/2017 CAV JUDGMENT election. He is elected by the members of Panchayat and elected Sarpanch. It is the case of the appellant that second meeting was held on 24.1.2017, in which, only agenda was with regard to formation of Committees. Thereafter, on 25.01.2017, members of Panchayat, numbering 11 out of 14 members of Gram Panchayat moved no confidence motion against the appellant - Sarpanch. It is stated that Gram Sabha which was held on 26.1.2017, rejected such motion. Thereafter, the members who had moved no confidence motion, who are impleaded as party respondents in the petition, have approached competent authority for convening the meeting to discuss No Confidence Motion against the appellant - original petitioner. Pursuant to such request, notice dated 10.2.2017 was issued for convening meeting on 17.2.2017 to discuss no confidence motion against the appellant. On receipt of the notice dated 10.02.2017, on 13.02.2017, the appellant has filed Special Civil Application and by order dated 14.02.2017, learned Single Judge granted interim relief, granting stay of further proceedings pursuant to communication dated 25.01.2017. Said interim relief granted by the learned Single Judge continued during the pendency of the petition and the Special Civil Application was dismissed, finally by the learned Single Judge vide order dated 03.04.2017. On filing Letters Patent Appeal, this Court has also granted interim relief in favour of the appellant. Page 4 of 63 C/LPA/543/2017 CAV JUDGMENT [3] Before the learned Single Judge, mainly it was case of the appellant that impleaded respondents have moved no confidence motion against her, immediately after first meeting, without giving any reasonable time to discharge, functions as Sarpanch. It was the case of the appellant that accountability and transparency in functioning of Sarpanch can only be assessed, if the elected Sarpanch is allowed to function for some time to discharge her / his duties and obligations' as required under Section 55 of the Gujarat Panchayats Act, 1993. It was the case of the appellant that as no confidence motion was moved immediately after 1st meeting, such step on the part of the respondents is irrational, unreasonable and arbitrary and as such, violative of rights guaranteed under Article 14 of the Constitution of India. Further it was the case of the appellant that, even in absence of any restriction for moving no confidence motion after election, under Section 56 of the Panchayats Act, 1993, reasonable time is to be read into, so as to allow the elected Sarpanch to function as Sarpanch to discharge his / her duties and obligations'. It is submitted that even if the appellant is removed from the post of Sarpanch by way of no confidence motion, same is not, a disqualification to contest election, as such, it would result in dis stability and continuity of the Panchayat institution. It is alleged that unless the members of the Panchayat do not get their own person Page 5 of 63 C/LPA/543/2017 CAV JUDGMENT elected, similar move will be repeated, which will ultimately effect stability and continuity of the Panchayat.
[4] In the petition, it was the case of the appellant - original petitioner that in absence of prescribed time limit, within which time, such no confidence motion cannot be moved, principles of fair play has to be read into before taking steps for moving no confidence motion against directly elected Sarpanch. It was the case of the appellant that such move on the part of the respondents is contrary to the 73rd Constitutional Amendment Act, 1992. It was the case of the appellant that if objects and reasons in the 73rd Constitutional Amendment Act, 1992 are looked into, the object and spirit of such amendment, is to give maximum power to local self government and stability and continuity of such institutions was the concept behind such amendment, as such, if the no confidence motion is allowed to proceed, it will run contrary to the spirit of 73rd Constitutional Amendment Act, 1992.
[5] Before the learned Single Judge, learned Government Pleader appeared for State and learned Senior Counsel Mr. D.C.Dave appeared for impleaded respondent Nos.4 to 14. It was mainly pleaded that in absence of any restriction or prohibition for moving Page 6 of 63 C/LPA/543/2017 CAV JUDGMENT no confidence motion against elected Sarpanch under Section 56 of the Gujarat Panchayats Act, 1993, the appellant cannot claim any protection after election. It was the case of the respondents that in absence of challenge to vires of the provision, under Section 56 of the Gujarat Panchayats Act, 1993, the principles of 'reading into' cannot be applied. It was their case that any interpretation, as pleaded by the appellant - original petitioner of Section 56 of the Gujarat Panchayats Act, 1993 is nothing but amounting to redrafting of the provision. It is submitted that the principles of 'reading into' or 'reading down' in the field of interpretation of statute is to be invoked only when the validity of the statutory provision is under challenge. It was their case that in absence of any statutory protection under Section 56 of the Gujarat Panchayats Act, 1993, it is not open for the appellant to plead any protection under Section 56 of the Gujarat Panchayats Act, 1993 for any time. It is submitted that when members of the Panchayat are not having confidence on the elected Sarpanch, it is always open for them to move no confidence motion at any time after election of Sarpanch.
[6] The learned Single Judge upon hearing both the sides and having regard to material placed on record, has held that Gujarat Panchayats Act, 1993 is enacted to make law relating to Panchayat, in Page 7 of 63 C/LPA/543/2017 CAV JUDGMENT conformity with Part IX of the Constitution of India. It is further held that Section 56 of the Gujarat Panchayats Act, 1993 provides for motion of no confidence and notice which is impugned is supported by onehalf of total members of Panchayat. The learned Single Judge by drawing distinction of Section 56 with Section 57 of the Gujarat Panchayats Act, 1993, has opined that legislature has in its wisdom provided, provision for motion of no confidence for removal of Sarpanch or UpSarpanch and when legislature has thought it fit not to restrict for any time, for moving no confidence after election, motion of no confidence can be moved against Sarpanch by giving notice in the prescribed format. The contention on behalf of the appellant that no confidence motion can be moved only after reasonable time, is not accepted by the learned Single Judge. Referring to the case of Vipulbhai M. Chaudhary v/s. Gujarat Cooperative Milk Marketing Federation Limited and Ors. reported in AIR 2015 SC 1960, the learned Single Judge has held that said judgment was rendered under the Gujarat Cooperative Societies Act, 1961 and in which there was no provision for moving no confidence motion, and further held that said judgment cannot be applied, to Panchayat institution, in view of section 56 of the Gujarat Panchayat Act, 1993. Even the submission made on behalf of the appellant that no confidence motion would result in disstability and unworkability Page 8 of 63 C/LPA/543/2017 CAV JUDGMENT of the panchayat institution, was also not accepted stating that when statute clearly provided for moving no confidence motion, it would not be permissible to read into any restrictions into Section 56 of the Gujarat Panchayats Act. Placing reliance on the judgment in the case of Namit Sharma v/s. Union of India reported in (2013) 1 SCC 745 and Union of India v/s. Namit Sharma reported in (2013) 10 SCC 359, the learned Single Judge did not accept the plea of reading into any reasonable time into Section 56 of the Gujarat Panchayats Act, 1993. Further the learned Single Judge, with regard to similar provisions in statutes of other States, has held that in other States, time limit is prescribed by the respective legislatures prohibiting no confidence motion ranging from six months to four years after election, however, such time is not prescribed, in Section 56 of the Gujarat Panchayats Act, 1993 and therefore, no time limit can be read into by this Court in exercise of powers under Article 226 of the Constitution of India.
[7] Heard Shri S.N.Shelat, learned Senior Counsel for the appellant, learned Additional Advocate General Mr.P.K.Jani for respondent Nos.1 and 2, Shri H.S.Munshaw, learned Counsel for respondent No.3 and Shri D.C. Dave, learned Senior Counsel appearing for impleaded respondents 4 to 14.
Page 9 of 63 C/LPA/543/2017 CAV JUDGMENT [8] It is contended by Shri S.N.Shelat, learned Senior Counsel appearing for the appellant that the requisition made by respondent Nos.4 to 14 for expressing no confidence motion against the appellant and consequential notice issued under section 56 of the Act is arbitrary and illegal. It is submitted that the object and spirit of 73 rd Constitutional Amendment Act, 1992, is to give constitutional status to the village panchayat and to allow them to run with stability and continuity. It is submitted that merely because there is provision for moving no confidence motion under section 56 of the Act, same cannot be exercised unreasonably and arbitrarily. It is submitted that unless elected Sarpanch is allowed to work for reasonable period, no such move can be permitted by the members to remove directly elected Sarpanch on the ground that they lost confidence on him / her. It is submitted that only on the apprehension that the appellant may not spare time to function as Sarpanch, such no confidence motion is moved within a period of one month from election. It is submitted that such move by the members is colourable exercise of power, for throwing out elected Sarpanch on one ground or other and same will run contrary to the democratic principles. It is submitted that unless Sarpanch is allowed to work to discharge her duties and obligations' as contemplated under section 55 of the Gujarat Panchayats Act, 1993, for reasonable time, there is no basis for Page 10 of 63 C/LPA/543/2017 CAV JUDGMENT the members of the Panchayat to express no confidence, on the elected Sarpanch of the Panchayat. It is submitted that when statute provides for moving no confidence motion, it is implied that such power is to be exercised keeping in mind objectives of such provision in legislation, but not mechanically, only to throw out elected Sarpanch. It is submitted that even in absence of any restriction of any period for moving such no confidence motion, in Section 56 of the Gujarat Panchayats Act, reasonable period is to be read into. Learned Senior Counsel Mr. Shelat in support of his arguments has placed reliance on the judgments' in the case of Bhanumati v/s. State of U.P. And Ors. reported in AIR 2010 SC 3796, Usha Bharti v/s. State of Uttar Pradesh and Ors. reported in 2014 (7) SCC 663, Vipulbhai M. Chaudhary v/s. Gujarat Cooperative Milk Marketing Federation Ltd. And Ors. reported in 2015 8 SCC 1, N.Kannadasan and Ajoy Khose and Ors. reported in 2009 (7) SCC 1, Executive Engineer, Southern Electricity Supply Company of Orissa Limited and Anr. v/s. Sri Seetaram Rice Mill reported in 2012 (2) SCC 108, Pratap Chandra Mehta v/s. State Bar Council of Madhya Pradesh and Ors. reported in 2011 (9) SCC 573, Nanduri Yogananda Lakshiminarasimhachari and Ors. v/s. Sri Agastheswaraswamivaru reported in AIR 1960 SC 622 and Ishwardas v/s. State of Madhya Pradesh and Ors. reported in AIR Page 11 of 63 C/LPA/543/2017 CAV JUDGMENT 1979 SC 551.
[9] Mr. P.K.Jani, learned Additional Advocate General appearing for State has submitted that in view of clear and unambiguous language of Section 56 of the Gujarat Panchayats Act, it is always open for the members of the Panchayat to move no confidence motion by majority members of the Panchayat at any time. It is submitted that such move by the members of the Panchayat is in conformity with Section 56 of the Gujarat Panchayats Act. It is submitted that in absence of any restriction for moving no confidence motion under Section 56 of the Gujarat Panchayats Act, for any time, after election, there is no illegality in impugned proceedings. It is submitted that if majority of members feel that they lost confidence on the Sarpanch, it is always open for them to move no confidence motion. It is submitted that all the decisions are to be taken by the majority members of Panchayat and if majority members of panchayat do not repose confidence on the appellant / Sarpanch, very functioning of Panchayat will come to grinding halt. In support of his arguments, learned Additional Advocate General has relied on the judgments in the case of Vipulbhai M. Chaudhary (supra), Munshi Manzoor Ali Khan and Ors. v/s. Sukhbasi Lal and Ors. reported in 1974 SCC 706, judgment of learned Single Judge of this Court in the Page 12 of 63 C/LPA/543/2017 CAV JUDGMENT case of Narmadaben V. Parmar v/s. Taluka Development Officer, Kheralu and Ors. reported in 1998 (1) GLH 275, judgment of Division Bench of this Court in the case of Thakore Gandaji Chundaji and Ors. v/s. Secretary, Indrad Gram Panchayat and Ors. reported in 2000 (2) GLH 758, Bhanumati and Ors. v/s. State of Uttar Pradesh reported in (2010) 12 SCC 1, Mohanlal Tripathi v/s. District Magistrate, Rai Bareilly reported in (1992) 4 SCC 80, Ram Beti v/s. District Pachayat Raj Adhikari and Ors. reported in (1998) 1 SCC 680 and Union of India v/s. Namit Sharma reported in (2013) 10 SCC 359.
[10] Mr. Dave, learned Senior Counsel appearing for respondent Nos.4 to 14 has also submitted that in view of plain language of section 56 of the Gujarat Panchayats Act, it is not open for the appellant to seek 'reading into' reasonable period, as pleaded by the appellant. It is submitted that the principle of 'reading down' or 'reading into' can be applied, only when vires of the statute is challenged. It is further submitted that in absence of challenge to the vires of the provision, Section 56 of the Gujarat Panchayats Act, it is not open for the appellant to apply principle of 'reading into', any reasonable time into the provision so as to prohibit for moving no confidence motion. It is submitted that if the plea of the appellant is Page 13 of 63 C/LPA/543/2017 CAV JUDGMENT accepted, it will amount to redrafting the provision i.e. Section 56 of the Gujarat Panchayats Act, which is not permissible. In support of his argument, he has placed reliance on the judgments in the case of Namit Sharma v/s. Union of India reported in (2013) 1 SCC 745, (2013) 10 SCC 359, Bharat Aluminium Company v/s. Kaser Aluminium Technical Service reported in (2012) 9 SCC 552, Cellular Operators Association of India v/s. Telecom Regulatory Authority of India reported in (2016) 7 SCC 703, Hiral P. Harsora and Ors. v/s. Kusum Narottamdas Harsora reported in (2016) 10 SCC 165 and in the case of R.S. Joshi, Sales Tax Officer, Gujarat and Ors. v/s. Ajit Mills Limited and Anr. reported in 1977 (4) SCC
98. It is further submitted that draft amendment prayed for also cannot be allowed which is subsequent event.
[11] In response, learned Senior Counsel Mr. Shelat for the appellant has submitted that the impugned action of the respondents is nothing but abuse of power and if the same is allowed, it will be arbitrary and in breach of the rights guaranteed under Article 14 of the Constitution of India. Learned Senior Counsel has relied on the judgment in the case of N.Kannadasn and Ajoy Khose and Ors. reported in 2009 (7) SCC 1 and also judgment in the case of Vipulbhai M. Chaudhary v/s. Gujarat Cooperative Milk Marketing Page 14 of 63 C/LPA/543/2017 CAV JUDGMENT Federation Limited and Ors. reported in AIR 2015 SC 1960. Lastly, it is contended by Mr. Shelat appearing for the appellant that if no confidence motion is allowed, it will lead to disstability and continuity of functioning of the panchayat and will run contrary to the objects' and reasons of 73rd Constitutional Amendment Act, 1992. [12] Before we consider submissions of learned Counsels, we deem it appropriate to refer certain relevant provisions of the Gujarat Panchayat Act, 1993 to decide the issues which arise for consideration.
[13] Prior to the enactment of Gujarat Panchayats Act, 1993, in the State of Gujarat Panchayati Raj Institutions were governed by the provisions under the Gujarat Panchayats Act, 1961. By virtue of Section 276 of the Gujarat Panchayat Act, 1993, earlier Act i.e. Gujarat Panchayats Act, 1961 was repealed. In the preamble of Gujarat Panchayats Act, 1993 itself, it is categorically stated that by the Constitution (Seventy Third Amendment) Act, 1992, Part IX relating to the panchayats has been inserted in the Constitution and it is expedient to bring the law relating to Panchayats in the State of Gujarat in conformity with the said Part IX of the Constitution. Page 15 of 63 C/LPA/543/2017 CAV JUDGMENT [14] Objects and reasons of the 73rd Amendment Act, 1992 reads as under : "Statement of objects and reasons Though the Panchayati Raj Institutions have been in existence for a long time, it has been observed that these institutions have not been able to acquire the status and dignity of viable and responsive people's bodies due to a number of reasons including absence of regular elections, prolonged supersession, insufficient representation of weaker sections like Scheduled Castes, Scheduled Tribes and Women, inadequate devolution of powers and lack of financial resources.
Article 40 of the Constitution which enshrines one of the directive principles of State policy lays down that the State shall take steps to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self government. In the light of the experience in the last forty years and in view of the short comings which have been observed, it is considered that there is an imperative need to enshrine in the Constitution certain basic and essential features of Panchayati Raj Institutions to impart certainty, continuity and strength to them."
[15] Chapter - II of the Gujarat Panchayats Act, 1993 deals Page 16 of 63 C/LPA/543/2017 CAV JUDGMENT with the provisions relating to establishment of Panchayats. Panchayats are established on three tier basis i.e. Village panchayat for each Village, Taluka Panchayat for each Taluka and District Panchayat for each District. Constitution of Village Panchayat is under Section 9 of the Act, 1993. A village panchayat shall consist of such number of members as provided in subsection (4) of the Act, 1993 apart from Sarpanch and UpSarpanch. Sarpanch shall be elected by ballot, by the qualified voters of the village from amongst themselves, whereas, UpSarpanch shall be elected by the members of the village panchayat from amongst themselves. Thus, it is clear that election of Sarpanch is direct election, elected by qualified voters of entire panchayat and UpSarpanch is elected by the members of the village panchayat amongst themselves.
[16] As per section 13 of the Act, 1993, every Panchayat, unless sooner dissolved under the Act shall continue for five years from the date appointed for its first meeting and no longer. Executive functions of Sarpanch and UpSarpanch are in accordance with provisions under Section 55 of the Gujarat Panchayats Act, 1993. Section 56 of the Gujarat Panchayats Act, 1993 provides motion of no confidence against Sarpanch and UpSarpanch. Section 57 of the Gujarat Panchayats Act, 1993 empowers competent authority to Page 17 of 63 C/LPA/543/2017 CAV JUDGMENT remove Sarpanch and UpSarpanch for misconduct, any disgraceful conduct or abuse of powers conferred under the Act. Under section 57(2) of the Act, 1993, powers are conferred on the competent authority to remove Sarpanch and UpSarpanch or disqualify for a period not exceeding five years.
[16.1] Section 55 of the Panchayat Act, 1993 reads as under :
"55. Executive functions of Sarpanch, or Upa Sarpanch : (1) Save as otherwise expressly provided by or under this Act, the executive power, for the purpose of carrying out the provisions of this Act and the resolutions passed by a village panchayat shall vest in the Sarpanch thereof who shall be directly responsible for the due fulfilment of the duties imposed upon the panchayat by or under this Act.
In the absence of the Sarpanch his powers and duties shall, save as may be otherwise prescribed by rules, be exercised and performed by the UpaSarpanch.
(2) Without prejudice to the generality of the foregoing provision :
(a) the Sarpanch shall
(i) preside over and regulate the meetings of the panchayat;
(ii) exercise supervision and control over the acts done and actions taken by all officers and servants of the panchayat;
(iii) incur contingent expenditure upon fifty rupees at any one occasion;
(iv) operate on the fund of the panchayat including authorisation of payment, issue of cheques and refunds;
(v) be responsible for the safe custody of the fund of the panchayat;
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(vi) cause to be prepared all statements and reports required by or under this Act;
(vii) exercise such other powers and discharge such other functions as may be conferred or imposed upon him by this Act or rules made thereunder.
(b) the UpaSarpanch shall
(i) in the absence of the Sarpanch preside over and regulate the meetings of the panchayat;
(ii) exercise such of the powers and perform such of the duties of the Sarpanch as the Sarpanch may, from time to time delegate to him;
(iii) in case the Sarpanch has been continuously absent from the village for more than fifteen days or is incapacitated to exercise the powers and perform the duties of the Sarpanch.
(3) In the absence of both the Sarpanch and the Upa Sarpanch, every meeting of the panchayat shall be presided over by such one of the members present as may be chosen by the meeting to be Chairman for the occasion. (4) Notwithstanding anything contained in clause (iv) of sub section (2) no money shall be withdrawn from the fund of the panchayat except with the signature of the Sarpanch and any one of the two other members of the panchayat authorised in that behalf by the panchayat." [16.2] Section 56 of the Panchayat Act, 1993 reads as under : "56. Motion of noconfidence : (1) Any member who intends to move a motion of no confidence against the Sarpanch or the UpaSarpanch 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 member of the panchayat concerned, the motion may be moved.
(2) Where in the case of the Sarpanch or, as the case may be, the UpaSarpanch, the motion is carried by the majority of not less than twothirds of the total number of Page 19 of 63 C/LPA/543/2017 CAV JUDGMENT 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 the 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 tospeak or otherwise to take part in the proceedings of such a meeting (including the right to vote).
(4) When the offices of both the Sarpanch and Upa Sarpanch 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 to the report."
[16.3] Section 57 of the Panchayat Act, 1993 reads as under : "57. Removal from office : The competent authority may remove from office any member of the panchayat, the Sarpranch or, as the case may be, the UpaSarpanch, thereof, after giving him an Page 20 of 63 C/LPA/543/2017 CAV JUDGMENT opportunity of being heard and giving due notice in that behalf to the panchayat and after such inquiry as it deems necessary, if such member, Sarpanch or, as the case may be, UpaSarpanch has been guilty of misconduct in the discharge of his duties or of any disgraceful conduct or abuses his powers or makes persistent default in the performance of his duties and functions under this Act or has become incapable of performing his duties and functions under this Act. The Sarpanch or, as the case may be, the UpaSarpanch, so removed may at the discretion of the competent authority also be removed from the membership of the panchayat.
(2) The competent authority may, after following the procedure laid down in subsection (1) disqualify for a period not exceeding five years any person who has resigned his office as a member, Sarpanch or Upa Sarpanch, or otherwise ceased to hold any such office and has been guilty of misconduct specified in sub section (1) or has been incapable of performing his duties and functions :
Provided that an action under this subsection shall be taken within six months from the date on which the person resign or ceases to hold any such office. (3) Any person aggrieved by an order of the competent authority under subsection (1) or (2) may, within a period of thirty days from the date of the communication of such order, appeal to the State Government."
[17] From a reading of aforesaid provisions, it is clear that the executive functions of Sarpanch and UpSarpanch are enumerated under Section 55 of the Gujarat Panchayats Act, 1993. Section 56 of the Gujarat Panchayats Act, 1993 deals with motion of no confidence against Sarpanch. Section 57 of the Gujarat Panchayats Act, 1993 Page 21 of 63 C/LPA/543/2017 CAV JUDGMENT deals with removal of Sarpanch and UpSarpanch on proved misconduct. At this stage, it is to be noticed that though power is conferred on the competent authority to disqualify Sarpanch and Up Sarpanch on proved misconduct under section 57 of the Gujarat Panchayats Act, 1993 for a period not exceeding five years, however, there is no provisions to disqualify a person who is removed by way of no confidence motion under Section 56 of the Gujarat Panchayats Act, 1993.
[18] In exercise of powers conferred by subsections (1) and (2) of Section 274 of the Gujarat Panchayats Act, 1993, the Government of Gujarat has framed rules titled as 'Gujarat Panchayats (Procedure) Rules, 1997' ('the Rules, 1997' for short). Rule 20 of the said Rules deals with no confidence motion against Sarpanch and Up Sarpanch. Said Rule reads as under : "20. Notice of no confidence motion (1) Any member of a Panchayat who desires to move a motion of no confidence against the Sarpanch / President or UpSarpach / Vice President of the Panchayat, shall give notice thereof to the Secretary in Form A. Where the motion of no confidence is to be moved against the Sarpanch / President as well as Up Sarpanch / Vice President, two separate notice shall be given. If the motion is given jointly by more than one Page 22 of 63 C/LPA/543/2017 CAV JUDGMENT member, the motion may be moved by any of the members who have assigned the notice. Every such notice shall be supported by atleast one half of the total number of members of the panchayat.
(2) The member giving any notice under subrule (1) shall forward therewith three additional copies thereof to the Secretary who shall deliver one copy to the Sarpanch / President, one copy to the UpSarpanch / Vice President and one copy (I) to the Taluka Development Officer where the motion relates to the Sarpanch or UpSarpanch or
(ii) to the District Development Officer where the motion relates to President or Vice President of a taluka Panchayat.
(iii) To the Development Commissioner where the motion relates to the President or Vice President of a district panchayat.
Explanation - For the purposes of this rule, if the total number of members of a panchayat is odd, then, in calculating the number for the purpose of this rule, a fraction shall be counted as one, that is to say, if the number of members is thirty one, the member required for supporting the notice so that a motion may be moved shall be sixteen and so on."
[18.1] There is prescribed format in form A, which is referred under Rule 20 of the Gujarat Panchayats (Procedure) Rules, 1997. Form A reads as under : Page 23 of 63 C/LPA/543/2017 CAV JUDGMENT "FORM A [see Rule 20] Notice of motion of No Confidence
1. I / We member / members of the village / Taluka / District Panchayat propose to move a no confidence motion against the Sarpanch / UpSarpanch / President / Vice President Shri _______________ in the meeting of ____________ village / Taluka / District Panchayat for the following reasons.
(here specify the reasons)
2. I / We declare that the facts stated above are true to the best of my / our information and knowledge.
Signature / signatures Name / Names"
[19] A copy of requisition by respondent Nos.4 to 14 is also placed on record, which is submitted in Form A, as per Rule 20 of the Rules, 1997. In form A, respondent Nos.4 to 14 have stated that elected Sarpanch is not in a position to spare time to work for Gram Panchayat.
[19.1] It is the case of the appellant that appellant was declared elected on 29.12.2016. First meeting of Panchayat was held on 16.01.2017, in which, UpSarpanch was elected. It is also specific case of the appellant that in the meeting held on 24.01.2017, only agenda was with regard to formation of committees. On 25.01.2017, Page 24 of 63 C/LPA/543/2017 CAV JUDGMENT respondent Nos.4 to 14 moved no confidence motion against the appellant - Sarpanch. Though there is no specific provision under the Panchayat Act prohibiting any period for moving no confidence motion after election, it is contended by learned Senior Counsel Mr. Shelat for the appellant that such move on the part of the respondents even before appellant started functioning as Sarpanch of the Panchayat, is illegal, arbitrary and unreasonable. It is pleaded that unless elected Sarpanch is allowed to function for reasonable period after election, it is not open for the members of the Panchayat to move no confidence motion, alleging that they lost confidence on the Sarpanch. It is submitted that accountability and transparency in the functioning of the Sarpanch can be assessed only after elected Sarpanch is allowed to function for reasonable period.
[20] Learned Senior Counsel Mr. Shelat appearing for the appellant has placed reliance on the judgment in the case of Bhanumati v/s. State of U.P. And Ors. reported in AIR 2010 SC 3796. In the aforesaid judgment, U.P. Panchayat Laws (Amendment) Act, 2007 was challenged, which provided for reducing the period for brining no confidence motion and reducing majority from 2/3rd to simple majority for removing elected Chairman. The Hon'ble Supreme Court upheld the said provision and held in paras Page 25 of 63 C/LPA/543/2017 CAV JUDGMENT 85 and 91 as under : "85.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.
91. Upholding the concept of vote of noconfidence in Mohan Lal Tripathi (supra) this Court further elaborated the concept as follows:
"...Vote of noconfidence against elected representative is direct check flowing from accountability. Today democracy is not a rule of 'Poor' as said by Aristotle or of 'Masses' as opposed to 'Classes' but by the majority elected from out of the people on basis of broad franchise. Recall of elected representative is advancement of political democracy ensuring true, fair, honest and just representation of the electorate. Therefore, a provision in a statute for recall of an elected representative has to be tested not on general or vague notions but on practical possibility and electoral feasibility of entrusting the power of recall to a body which Page 26 of 63 C/LPA/543/2017 CAV JUDGMENT is representive in character and is capable of projecting views of the electorate. Even though there was no provision in the Act initially for recall of a President it came to be introduced in 1926 and since then it has continued and the power always vested in the Board irrespective of whether the President was elected by the electorate or Board. Rationale for it is apparent from the provisions of the Act..."
[20.1] Reliance is also placed by the learned Senior Counsel in the case of Usha Bharti v/s. State of Uttar Pradesh and Ors. reported in (2014) 7 SCC 663. In the aforesaid judgment, when validity of Section 28 i.e. provision for motion of no confidence against Chairperson (Adhyaksha) of the U.P. Kshettra Panchayats and Zila Panchayats Act, 1961 was challenged, the Hon'ble Supreme Court upheld the said provision and it was held that same is not inconsistent with Part IX in particular Article 243N of the Constitution. Paras 44 and 53 of the said judgment read as under : "44. We reiterate the view earlier expressed by this Court in Bhanumati and Ors. (supra), wherein this Court observed as follows: "57. It has already been pointed out that the object and the reasons of Part IX are to lend status and dignity to Panchayati Raj institutions and to impart certainty, continuity and strength to them. The Page 27 of 63 C/LPA/543/2017 CAV JUDGMENT learned counsel for the appellant unfortunately, in his argument, missed the distinction between an individual and an institution. If a no confidence motion is passed against the Chairperson of a panchayat, he/she ceases to be a Chairperson, but continues to be a member of the panchayat and the panchayat continues with a newlyelected Chairperson. Therefore, there is no institutional setback or impediment to the continuity or stability of the Panchayati Raj institutions.
58. These institutions must run on democratic principles. In democracy all persons heading public bodies can continue provided they enjoy the confidence of the persons who comprise such bodies. This is the essence of democratic republicanism. This explains why this provision of no confidence motion was there in the Act of 1961 even prior to the Seventythird Constitution Amendment and has been continued even thereafter. Similar provisions are there in different States in India."
xxxxxx
53. In our opinion, the provision for removing an elected representative such as Panchayat Adhyaksha is of fundamental importance to ensure the democratic functioning of the Institution as well as to ensure the transparency and accountability in the functions performed by the elected representatives."
Page 28 of 63 C/LPA/543/2017 CAV JUDGMENT [20.2] Reliance is also placed by learned Senior Counsel in the case of Vipulbhai M. Chaudhary v/s. Gujarat Cooperative Milk Marketing Federation Limited and ors. reported in (2015) 8 SCC
1. In the aforesaid judgment, which is arising out of Gujarat Cooperative Societies Act, while holding that there is no uniformity with regard to the procedure and process regarding motion of no confidence in the different States in the country, the Hon'ble Supreme Court has issued guidelines, while upholding the judgment of the High Court of Gujarat. In the aforesaid judgment, it is categorically held that duty of the Court is to read constitutional requirement into existing provision. Paras 17, 20, 23, 25, 39, 44, 48 and 53 of the said judgment read as under : "[17] In Bhanumati and others v. State of Uttar Pradesh through its Principal Secretary and others, 2010 12 SCC 1 the cooperative principles governing democratic institutions have been discussed in detail; no doubt while dealing with the Panchayati Raj institutions. However, the basic democratic principles governing both the institutions, enjoying the constitutional status, are the same and, therefore, it would be profitable to refer to the discussion on the principles. To quote:
"58. These institutions must run on democratic principles. In democracy all persons heading public bodies can continue provided they enjoy the confidence of the persons who comprise such bodies. This is the essence of democratic republicanism. This explains why this provision of noconfidence motion was there in the Act of 1961 even prior to the Page 29 of 63 C/LPA/543/2017 CAV JUDGMENT Seventythird Constitution Amendment and has been continued even thereafter. Similar provisions are there in different States in India.
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."
[20] If a person has been selected to an office through democratic process, and when that person looses the confidence of the representatives who selected him, those representatives should necessarily have a democratic right to remove such an office bearer in whom they do not have confidence, in case those institutions are viewed under the Constitution/statues as democratic institutions. [23] In Usha Bharti case also, this Court eloquently held at paragraph 53 as follows:
"53. In our opinion, the provision for removing an elected representative such as Panchayat Adhyaksha is of fundamental importance to ensure the democratic functioning of the Institution as well as to ensure the transparency and accountability in the functions performed by the elected representatives."
[25] Silence in Constitution and abeyance as well has been dealt extensively by Michael Foley in his celebrated work "The Silence of Constitutions". To quote from the Preface:
Page 30 of 63 C/LPA/543/2017 CAV JUDGMENT
"Abeyances refer to those constitutional gaps which remain vacuous for positive and constructive purposes. They are not, in any sense, truces between two or more defined positions, but rather a set of implicit agreements to collude in keeping fundamental questions of political authority in a state of irresolution. Abeyances are, in effect, compulsive hedges against the possibility of that which is unresolved being exploited and given meanings almost guaranteed to generate profound division and disillusionment. Abeyances are important, therefore, because of their capacity to deter the formation of conflicting positions in just those areas where the potential for conflict is most acute. So central are these abeyances, together with the social temperament required to sustain them, that when they become the subject of heightened interest and subsequent conflict, they are not merely accompanied by an intense constitutional crisis, they are themselves the essence of that crisis."
[39] In Veeramachaneni Venkata Narayana v. The Deputy Registrar of Cooperative societies, Eluru, West Godavari District and others,1975 ILR(AP) 242 at paragraph10, the view taken by the High Court of Andhra Pradesh, is as under:
"10. ... As sufficient safeguards are provided in the event of an office bearer of the committee not conducting himself properly or not discharging his duties as required of him under the provisions of the Act, the Rules and the byelaws, the Legislature obviously did not intend to provide for the removal of an officebearer of a committee by way of passing of 'no confidence' motion against him."
[44] The provision simply deals with removal for misconduct or persistent default/nonperformance. A person with good conduct may still not earn the confidence of the people who selected him to the office. Page 31 of 63 C/LPA/543/2017 CAV JUDGMENT
The very concept of cooperation is to work jointly towards the same end. Unless there is cooperativeness among the elected cooperators who constitute the Governing Body for achieving the object for which the society is constituted and for which those representatives are elected by the members entrusting them with the management of affairs of the society, there will be total chaos. Cooperation among the cooperators is the essence of democratic functioning of a cooperative society. If there is no democracy in a cooperative society, it ceases to be a cooperative society as conceived by the Constitution of India under the Ninety Seventh Amendment.
[48] According to Donaldson J.:
"The duty of the courts is to ascertain and give effect to the will of Parliament as expressed in its enactments. In the performance of this duty the judges do not act as computers into which are fed the statues and the rules for the construction of statues and from whom issue forth the mathematically correct answer. The interpretation of statutes is a craft as much as a science and the judges, as craftsmen, select and apply to the appropriate rules as the tools of their trade. They are not legislators, but finishers, refiners and polishers of legislation which comes to them in a state requiring varying degrees of further processing.
[53] Though for different reasons, we agree with the view taken by the High Court of Gujarat. The contra views expressed by the High Courts of Andhra Pradesh, Bombay, Kerala and Punjab and Haryana are no more good law in view of the Ninety Seventh Amendment to the Constitution of India."
[20.3] In support of his argument that "purposive construction"
in the statute is certainly cardinal principle of interpretation, the learned Counsel for appellant has placed reliance on the judgment in Page 32 of 63 C/LPA/543/2017 CAV JUDGMENT the case of Executive Engineer, Southern Electricity Supply Company of Orissa Limited (Southco) and Anr. v/s. Sri Seetaram Rice Mill reported in (2012) 2 SCC 108. Para 46 of the said judgment reads as under : "[46] 'Purposive construction' is certainly a cardinal principle of interpretation. Equally true is that no rule of interpretation should either be overstated or over extended. Without being overextended or overstated, this rule of interpretation can be applied to the present case. It points to the conclusion that an interpretation which would attain the object and purpose of the Act has to be given precedence over any other interpretation which may not further the cause of the statute. The development of law is particularly liberated both from literal and blinkered interpretation, though to a limited extent."
[20.4] Learned Senior Counsel Mr.Shelat for the appellant has placed reliance on the judgment in the case of N.Kannadasn v/s. Ajoy Khose and Ors. Reported in (2009) 7 SCC 1 in support of his argument that provision under Section 56 of the Panchayat Act is to be construed purposively. In the aforesaid judgment, while dealing with purposive interpretation, the Hon'ble Supreme Court has held in paras 54, 55 and 56 as under : "[54] A case of this nature is a matter of moment. It concerns public interest. Public information about independence and impartiality of a judiciary would be in question. The duty of all organs of the State is that the public trust and confidence in the judiciary may not go in Page 33 of 63 C/LPA/543/2017 CAV JUDGMENT vain. Construction of a statute would not necessarily depend upon application of any known formalism. It must be done having regard to the text and context thereof. For the aforementioned purpose, it is necessary to take into consideration the statutory scheme and the purpose and object it seeks to achieve.
[55] A construction of a statute, as is well known, must subserve the tests of justice and reason. It is a wellsettled principle of law that in a given case with a view to give complete and effective meaning to a statutory provision, some words can be read into; some words can be subtracted. Provisions of a statute can be read down (although sparingly and rarely).
[56] In Carew and Company Ltd. v. Union of India , Krishna Iyer, J. opined:
21. The law is not "a brooding omnipotence in the sky" but a pragmatic instrument of social order. It is an operational art controlling economic life, and interpretative effort must be imbued with the statutory purpose. No doubt, grammar is a good guide to meaning but a bad master to dictate.
Notwithstanding the traditional view that grammatical construction is the golden rule, Justice Frankfurter used words of practical widom when he observed:
There is no surer way to misread a document than to read it literally."
[21] Learned Additional Advocate General Mr. Jani, appearing for the State has mainly submitted that in absence of any prohibition for any period, after election for moving no confidence motion against Sarpanch and UpSarpanch under Section 56 of the Act, 1993, it is always open for the members of the Panchayat to move no confidence Page 34 of 63 C/LPA/543/2017 CAV JUDGMENT motion at any time. It is submitted that in the meeting held on 24.01.2017, there were nine subjects and thereafter, on 25.01.2017, motion of no confidence was moved by 11 out of 14 members of Panchayat. It is also submitted that appellant is elected directly by qualified voters of Panchayat with margin of 2739 votes. It is further submitted that as members of Panchayat have lost confidence on the Sarpanch, they moved motion of no confidence by way of requisition on 25.01.2017. It is also contended that if majority of members have lost confidence on the Sarpanch, the functions of Panchayat will come to grinding halt. Referring to Section 96 of the Gujarat Panchayats Act, 1993, it is contended that all questions before a meeting of a panchayat or committee thereof or of a gram sabha shall be decided by a majority of votes of the members present. It is submitted that for moving no confidence motion, no reasons be mentioned. In support of his argument, he has relied on the judgment in the case of Babubhai Muljibhai Patel v/s. Nandlal Khodidas Barod and Ors. reported in (1974) 2 SCC 706. In the aforesaid judgment, the Hon'ble Supreme Court, while dealing with provisions relating to no confidence motion under the Gujarat Municipalities Act, 1963, has held that in view of language under section 36 of the Municipalities Act, no grounds be mentioned when no confidence motion is actually passed against the President. So far as mentioning of reasons, it is fairly stated that no Page 35 of 63 C/LPA/543/2017 CAV JUDGMENT confidence motion not being punitive, no reasons be recorded for removal.
[21.1] Learned Additional Advocate General appearing for the State has relied on the judgment in the case Ram Beti v/s. District Panchayat Raj Adhikari and Ors. reported in (1998) 1 SCC 680. In the aforesaid judgment, the Hon'ble Supreme Court has upheld the validity of section 14 of the U.P. Panchayat Raj Act, 1947. The said section provided for removal of Pradhan of Gram Sabha by members of Gram Panchayat, a smaller body, instead by members of Gram Sabha who are electorate. Said provision was held to be valid and it was held that it will not destroy the democratic functioning of Panchayat Raj Institutions.
[21.2] Further reliance is placed by learned Additional Advocate General Mr. Jani on the judgment of Division Bench of this Court in the case of Thakore Gandaji Chundaji and Ors. v/s. Secretary, Indrad Gram Panchayat and Ors. reported in 2000 (2) GLH 758. In the aforesaid judgment, the Division Bench of this Court has upheld Section 56 of the Gujarat Panchayats Act, 1993. Validity of such provision was questioned mainly on the ground that Sarpanch who is directly elected by Gram Panchayat cannot be allowed to be removed Page 36 of 63 C/LPA/543/2017 CAV JUDGMENT by way of no confidence motion passed by members of Gram Panchayat. When said provision was challenged as being arbitrary, said contention was rejected in the aforesaid judgment and Section 56 of the Gujarat Panchayat Act is upheld.
[21.3] Learned Additional Advocate General Mr. Jani, appearing for the State has relied on the judgment in the case Mohan Lal Tripathi v/s. District Magistrate, Rai Bareilly and Ors. reported in (1992) 4 SCC 80. In the aforesaid judgment, the Hon'ble Supreme Court has upheld the validity of provision relating to no confidence motion in U.P. Municipalities Act. In the said Act, there was provision for moving no confidence motion against President elected by electorate directly by the Board, instead of the electorate itself. Said provision was held to be valid.
[21.4] Referring to judgment of Hon'ble Supreme Court in the case of Vipulbhai M. Chaudhary v/s. Gujarat Cooperative Milk Marketing Federation Limited and Ors. reported in (2015) 8 SCC 1, it is submitted that said judgment is rendered interpreting the provision under Gujarat Cooperative Societies Act. It is submitted that in absence of any provision for prohibiting, moving no confidence motion at any time after election of Sarpanch and UpSarpanch, Page 37 of 63 C/LPA/543/2017 CAV JUDGMENT under Section 56 of the Gujarat Panchayats Act, there is no embargo for moving no confidence motion.
[21.5] It is finally submitted by learned Additional Advocate General that in view of clear and unambiguous language, under Section 56 of the Gujarat Panchayats Act, 1993, the principle of reading into or reading down also cannot be applied, for prohibiting no confidence motion at any time after election. In support of his argument, he placed reliance on the judgment in the case of Union of India v/s. Namit Sharma reported in (2013) 10 SCC 359. [22] Mr. D. C. Dave, learned Senior Counsel appearing for respondent Nos.4 to 14 has submitted that in view of clear and unambiguous language of section 56 of the Act, 1993, no words can be read into said provision. Learned Counsel has also placed reliance on the judgment in the case of Namit Sharma v/s. Union of India reported in (2013) 1 SCC 745.
[22.1] It is further submitted by Mr.Dave, learned Senior Counsel that in absence of any challenge to the vires of provision under Section 56 of the Gujarat Panchayats Act, it is not open for reading into or reading down into provision of Section 56 of the Page 38 of 63 C/LPA/543/2017 CAV JUDGMENT Gujarat Panchayats Act, 1993. It is submitted that judgment relied by the learned Senior Counsel for the appellant in the case of Vipulbhai Chaudhari (supra) is not applicable to the facts of the present case. [22.2] While referring to the judgment in the case of Bharat Aluminum Company v/s. Kaiser Aluminum Technical Services INC reported in (2012) 9 SCC 552, learned Senior Counsel Mr. Dave for the respondents has submitted that any prohibition of moving no confidence motion against Sarpanch and UpSarpanch after election, would result in rewriting the language of Section 56 of the Panchayat Act and same is not permissible.
[22.3] Learned Senior Counsel Mr. Dave for the respondents has also placed reliance on the judgment in the case of Cellular Operators Association of India and Ors. v/s. Telecom Regulatory Authority of India and Ors. reported in (2016) 7 SCC 703. It is submitted that principle of 'reading down' would apply only when general words used in a statute or regulation can be confined in a particular manner so as not to infringe upon a constitutional right. Para 50 of the said judgment reads as under : "50. But it was said that the aforesaid Regulation should be Page 39 of 63 C/LPA/543/2017 CAV JUDGMENT read down to mean that it would apply only when the fault is that of the service provider. We are afraid that such a course is not open to us in law, for it is well settled that the doctrine of reading down would apply only when general words used in a statute or regulation can be confined in a particular manner so as not to infringe a constitutional right. This was best exemplified in one of the earliest judgments dealing with the doctrine of reading down, namely the judgment of the Federal Court in In Re: Hindu Women's Rights to Property Act, 1937, AIR 1941 FC 72. In that judgment, the word "property" in Section 3 of the Hindu Women's Rights to Property Act was read down so as not to include agricultural land, which would be outside the central legislature's powers under the Government of India Act, 1935. This is done because it is presumed that the legislature did not intend to transgress constitutional limitations. While so reading down the word "property", the Federal Court held:
"If the restriction of the general words to purposes within the power of the Legislature would be to leave an Act with nothing or next to nothing in it, or an Act different in kind, and not merely in degree, from an Act in which the general words were given the wider meaning, then it is plain that the Act as a whole must be held invalid, because in such circumstances it is impossible to assert with any confidence that the Legislature intended the general words which it has used to be construed only in the narrower sense:Page 40 of 63 C/LPA/543/2017 CAV JUDGMENT
Owners of SS. Kalibia v. Wilson, Vacuum Oil Company Ltd. v. State of Queensland, R. v.
Commonwealth Court of Conciliation and Arbitration and British Imperial Oil Co. Ltd. v. Federal Commissioner of Taxation."
[22.4] Further, reliance is placed by learned Senior Counsel Mr. Dave on the judgment in the case of Hiral P. Harsora and Ors. v/s. Kusum Narottamdas Harsoara and Ors. reported in (2016) 10 SCC 165 in support of his submission that the principle of reading into or reading down cannot be applied where the statutory provision is clear and unambiguous.
[23] From the submissions made by learned Counsels appearing for both the parties, it is not in dispute that appellant - lady was elected as Sarpanch of Sankheda Gram Panchayat in the elections held on 26.12.2016. It is not in dispute that first meeting of the Panchayat was held on 16.1.2017, in which there was election of Up Sarpanch. The second meeting was held on 24.1.2017. Though there is dispute with regard to agenda item, but the fact remains that said agenda relates to formation of Committees. Thereafter, immediately on 25.01.2017, 11 out of 14 members of Gram Panchayat have moved no confidence motion against the appellant - Sarpanch. Precisely, it Page 41 of 63 C/LPA/543/2017 CAV JUDGMENT is clear that within a period of one month from the date of election, such a motion is moved against the appellant.
[23.1] From the submissions made by learned Counsels on both the sides, the issue which arise for our consideration is whether any restriction is to be read into Section 56 of the Gujarat Panchayats Act, 1993 for moving no confidence motion against the elected Sarpanch, after election. Further, the issue which arises for consideration is whether such move on the part of respondent Nos.4 to 14 is illegal and arbitrary, as much as, no confidence motion is moved against the appellant, who is elected directly by the electorate of the panchayat, within a period of one month from the date of declaration of result. [24] It is submitted by learned Senior Counsel Mr. S.N.Shelat for the appellant that keeping in mind objective of the Constitution (73 Amendment) Act, 1992, if the elected Sarpanch is permitted to be removed by way of no confidence motion, within a period of one month from the date of election, such move will run contrary to spirit and object of Constitutional Amendment Act, 1992. It is submitted that Gujarat Panchayats Act, 1993 itself is brought into force to bring the law relating to the panchayats in conformity with Part IX of the Constitution. It is submitted that even in absence of any protection Page 42 of 63 C/LPA/543/2017 CAV JUDGMENT for moving no confidence motion for a particular period from the date of election under Section 56 of the Act, unless elected Sarpanch is allowed to function for a reasonable period, it cannot be said that confidence on functioning of Sarpanch is lost. It is submitted that accountability and transparency can be gauged, if Sarpanch is allowed to work for a reasonable time, but at very beginning, no confidence motion cannot be allowed to be moved on the apprehension that the elected Sarpanch may not spare time to function as Sarpanch. It is submitted that though reasons need not be recorded for moving no confidence motion, but the provision under Section 56 of the Act, 1993 is to be construed purposively.
[25] Going to the objects and reasons of the Constitution (73rd Amendment) Act, 1992, it was felt that Panchayati Raj Institutions, though in existence for a long time, have not been able to acquire the status and dignity of viable and responsive people's bodies due to number of reasons including absence of regular elections, prolonged supersession, insufficient representation of weaker section i.e. Schedule Castes, Schedule Tribes and women, inadequate devolution of powers and lack of financial resources. Further, it is evident that in view of short comings which have been observed, it is considered to have imperative need to enshrine in the Constitution certain basic and Page 43 of 63 C/LPA/543/2017 CAV JUDGMENT essential features of Panchayati Raj Institutions to impart certainty, continuity and to strengthen them. It is clear from the said objectives that one of the basic objects' and reasons is to impart certainty, continuity and strength to the Panchayati Raj Institutions, which are proposed on three tier basis i.e. Gram Panchayat at Village level, Taluka Panchayat at Taluka level and District Panchayat at District level. From the preamble of the Gujarat Panchayats Act, 1993, it is evident that Gujarat Panchayats Act, 1993 is enacted to bring law relating to panchayats in State of Gujarat in conformity with Part IX of the Constitution.
[26] As per Section 55 of the Gujarat Panchayats Act, 1993, executive powers of the Panchayat, for the purpose of carrying out the provisions of the Act by the Village Panchayat shall vest in the Sarpach thereof who shall be directly responsible for the due fulfillment of the duties imposed upon the Panchayat under the Act. Section 55(2) of the Act reads as under : "(2) Without prejudice to the generality of the foregoing provision :
(a) the Sarpanch shall
(i) preside over and regulate the meetings of the panchayat;
(ii) exercise supervision and control over the acts done Page 44 of 63 C/LPA/543/2017 CAV JUDGMENT and actions taken by all officers and servants of the panchayat;
(iii) incur contingent expenditure upon fifty rupees at any one occasion;
(iv) operate on the fund of the panchayat including authorisation of payment, issue of cheques and refunds;
(v) be responsible for the safe custody of the fund of the panchayat;
(vi) cause to be prepared all statements and reports required by or under this Act;
(vii) exercise such other powers and discharge such other functions as may be conferred or imposed upon him by this Act or rules made thereunder.
(b) the UpaSarpanch shall
(i) in the absence of the Sarpanch preside over and regulate the meetings of the panchayat;
(ii) exercise such of the powers and perform such of the duties of the Sarpanch as the Sarpanch may, from time to time delegate to him;
(iii) in case the Sarpanch has been continuously absent from the village for more than fifteen days or is incapacitated to exercise the powers and perform the duties of the Sarpanch.
(3) In the absence of both the Sarpanch and the Upa Sarpanch, every meeting of the panchayat shall be presided over by such one of the members present as may be chosen by the meeting to be Chairman for the occasion. (4) Notwithstanding anything contained in clause (iv) of sub section (2) no money shall be withdrawn from the fund of the panchayat except with the signature of the Sarpanch and any one of the two other members of the Page 45 of 63 C/LPA/543/2017 CAV JUDGMENT panchayat authorised in that behalf by the panchayat." [27] From a reading of the above said provision, it is clear that all the responsibilities vest on the Sarpanch, as executive head of village panchayat. Section 56 of the Act, 1993 empowers any member who intends to move no confidence motion against Sarpanch or UpSarpanch to 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. In other Acts viz. The Gujarat Cooperative Societies Act, 1961 and The Gujarat Agricultural Produce Markets Act, 1963, there is provision for prohibition of moving no confidence motion for a period of six months from the date of election. [28] It is the case of the appellant that the provision under Section 56 of the Act, 1993 is to be interpreted purposively keeping in mind objectives of the Constitution (73rd Amendment) Act, 1992. On the other hand, it is the case of the respondents that in view of clear language used under Section 56 of the Gujarat Panchayats Act, 1993, it is not open to read into the provision restricting the members to move no confidence motion against the Sarpanch. At this stage, it is to be noticed that as per section 9 of the Gujarat Panchayats Act, 1993, Page 46 of 63 C/LPA/543/2017 CAV JUDGMENT Sarpanch is elected by ballot, by the qualified voters of the village, whereas, the UpSarpanch is elected by the members of the village panchayat. Though the Sarpanch of the village is elected by the qualified voters of the village from amongst themselves, but the power is conferred under Section 56 of the Gujarat Panchayats Act, 1993 on the elected members of the Panchayat to move motion of no confidence against the Sarpanch and UpSarpanch of the Gram Panchayat. As identical provision is upheld by the Hon'ble Supreme Court, it is not necessary for us to delve in deep to examine whether directly elected Sarpanch from the qualified voters of the Panchayat can be removed by the members of the panchayat, by way of no confidence motion. Section 56 of the Gujarat Panchayats Act, 1993 permits members of the Panchayat to move no confidence motion against the Sarpanch of the Panchayat. It is also necessary to refer to Section 57 of the Gujarat Panchayats Act, 1993, which empowers the competent authority to order removal of any member of panchayat on proved misconduct. Under section 57(2) of the Act, 1993, the competent authority is also empowered to disqualify such removed person for a period, not exceeding 5 years for election of Sarpanch or UpSarpanch of the Panchayat.
[29] On close scrutiny of Section 56 and Section 57 of the Page 47 of 63 C/LPA/543/2017 CAV JUDGMENT Gujarat Panchayats Act, 1993, there is vital distinction i.e. the removal of Sarpanch by way of no confidence motion, is not a punitive one and no disqualification can be made for future contest, whereas, a person removed on proved misconduct can be disqualified under section 57(2) of the Act, 1993 for a period not exceeding 5 years for the election to the Sarpanch and UpSarpanch. We are referring to the provision under Sections 56 and 57 of the Gujarat Panchayats Act, 1993 so as to observe that removed Sarpanch under no confidence motion can contest immediately next notified election for the post, as much as, there is no disqualification attached to such removed person.
[30] To construe provision under Section 56 of the Gujarat Panchayats Act, 1993, by applying principle of purposive interpretation, we are of the view that unless elected Sarpanch is allowed to work for a reasonable time, he/she cannot be permitted to be removed by way of no confidence motion. It is fairly stated that while dealing with doctrine of purposive interpretation, construction of statute, as is well known, must subserve the test of justice and reasons. Equally, it is fairly settled principle of law that in a given case, with a view to give complete and effective meaning to statutory provision, some words can be read into and some words can be Page 48 of 63 C/LPA/543/2017 CAV JUDGMENT subtracted.
[31] In the judgment arising out of Gujarat Cooperative Societies Act, 1961, in the case of Vipulbhai Chaudhary v/s. Gujarat Cooperative Milk Marketing Federation Limited and Ors. reported in (2015) 8 SCC 1, the Hon'ble Supreme Court while considering identical provisions in various States in connection with Municipal Acts, Panchayat Acts and Cooperative Societies Acts, has held in paras 52, 52.1, 52.2 and 53 as under : "52. 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.
52.1. 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 Page 49 of 63 C/LPA/543/2017 CAV JUDGMENT 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 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.
52.2 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 Page 50 of 63 C/LPA/543/2017 CAV JUDGMENT 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.
53. Though for different reasons, we agree with the view taken by the High Court of Gujarat. The contra views expressed by the High Courts of Andhra Pradesh, Bombay, Kerala and Punjab and Haryana are no more good law in view of the Ninety Seventh Amendment to the Constitution of India."
In the aforesaid judgment, the Hon'ble Supreme Court has held that while exercising powers of judicial review, it is the duty of the Courts to provide statute with meaning based on constitutional prescriptions, aspirations and ideals. It is also held that if the statute is silent or imprecise on requirements under the Constitution, it is for the Court to read constitutional mandate into provisions concerned and declare it accordingly. It is also further held that if Rules or bye laws do not say what they should say in terms of the constitution, it is the duty of the Court to read constitutional spirit and concept into Page 51 of 63 C/LPA/543/2017 CAV JUDGMENT such provisions.
[31.1] While referring to the case of Bhanumati v/s. State of UP and Ors. reported in AIR 2010 SC 3796, the Hon'ble Supreme Court has held in para 17 of Vipulbhai M. Chaudhary (supra) that the cooperative principles governing provisions of Gujarat Cooperative Societies Act and Panchyati Raj Institutions are same. In the said judgment, guidelines are issued restraining moving of no confidence motion for a period of two years from the date of election, so far as societies registered under Central or State law are concerned. It is held that motion of no confidence against office bearer shall be moved only after two years of his / her assumption of office. It is further held that in case the motion of no confidence is once defeated, a fresh motion shall not be introduced within another one year. It is to be noticed that after above guidelines are issued in the aforesaid judgment on 19.03.2015, the Gujarat Cooperative Societies Act, 1961 is amended by Gujarat Cooperative Societies (Amendment) Act, 2015. By the aforesaid amendment, Section 74E is brought in, which provides motion of no confidence against President, Vice President, Chairman and office bearers of the Society. As per provisio to section 74E (2) of the Gujarat Cooperative Societies Act, 1961, no requisition for a special meeting shall be made within a period of six months Page 52 of 63 C/LPA/543/2017 CAV JUDGMENT from the date of assuming office of President, Vice President etc. [32] The Gujarat Agricultural Produce Markets Act, 1963 was also amended by inserting Section 17A, by Gujarat Act No.14 of 2015. Here also, there is protection for moving no confidence against President and Vice President for a period of six months and further protection of six months once it is failed. Though identical provisions in similar Acts cannot be the basis, but as it is brought to our notice, we have mentioned such amendments made in Gujarat Cooperative Societies Act, 1961 and the Gujarat Agricultural Produce Markets Act, 1963.
[33] In the case of Usha Bharti v/s. State of UP and Ors. reported in (2014) 7 SCC 663, while upholding the amendments made to the U.P. Kshetra Panchayats and Zila Panchayats Act, 1961, and while reiterating earlier view in the case of Bhanumati v/s. State of UP and Ors. reported in (2010) 12 SCC 1, the Hon'ble Supreme Court has held that objects and reasons of Part IX are to lend status and dignity to Panchayati Raj Institutions and to impart certainty, continuity and strength to them.
[34] In the judgment in the case of N. Kannadasn v/s. Ajay Page 53 of 63 C/LPA/543/2017 CAV JUDGMENT Khose and Anr. reported in (2009) 7 SCC 1, relied by learned Counsel for the appellant, while considering the scope of interpretation of constitutional provision, the Hon'ble Supreme Court has held that the Court may have to change the interpretative tool in the event it is necessary to give effective contextual meaning to the Act. It is further held that while constructing a statute, for giving effective meaning to the statutory provisions, some words can be read into and some words can be subtracted. Para 27, 55 and 56 of the said judgment reads as under : "27. Interpretative tools of constitutional provisions and the statutory provisions may be different. Whatever interpretative tool is applied, the Court must not forget that its job is to find out the intention of the legislature. It can be gathered from the words used. However, if plain meaning assigned to the section results in absurdity or anomaly, literal meaning indisputably would not be applied. It is also well settled that the Court may have to change the interpretative tool in the event it is necessary to give effective contextual meaning to the Act.
55. A construction of a statute, as is well known, must subserve the tests of justice and reason. It is a wellsettled principle of law that in a given case with a view to give complete and effective meaning to a statutory provision, some words can be read into; some words can be subtracted. Page 54 of 63 C/LPA/543/2017 CAV JUDGMENT Provisions of a statute can be read down (although sparingly and rarely).
56. In Carew and Company Ltd. v. Union of India [(1975) 2 SCC 791], Krishna Iyer, J. opined:
"21. The law is not "a brooding omnipotence in the sky" but a pragmatic instrument of social order. It is an operational art controlling economic life, and interpretative effort must be imbued with the statutory purpose. No doubt, grammar is a good guide to meaning but a bad master to dictate. Notwithstanding the traditional view that grammatical construction is the golden rule, Justice Frankfurter used words of practical widom when he observed4:
"There is no surer way to misread a document than to read it literally."
[35] Similarly, in another judgment in the case of Executive Engineer, Southern Electricity Supply Company of Orissa Limited (Southco) and Anr. v/s. Sri Seetaram Rice Mill reported in (2012) 2 SCC 108, relied by learned Counsel for the appellant, while considering the interpretation of the provisions under Electricity Act, 2003, the Hon'ble Supreme Court has taken a view that while interpreting statute, an interpretation, which would attain the object and purpose of the Act has to be given precedence over any other Page 55 of 63 C/LPA/543/2017 CAV JUDGMENT interpretation which may not further the cause of the statute, is to be adopted. Paras 46 and 47 of the said judgment read as under : "46. 'Purposive construction' is certainly a cardinal principle of interpretation. Equally true is that no rule of interpretation should either be overstated or overextended. Without being overextended or overstated, this rule of interpretation can be applied to the present case. It points to the conclusion that an interpretation which would attain the object and purpose of the Act has to be given precedence over any other interpretation which may not further the cause of the statute. The development of law is particularly liberated both from literal and blinkered interpretation, though to a limited extent.
47. The precepts of interpretation of contractual documents have also undergone a wide ranged variation in the recent times. The result has been subject to one important exception to assimilate the way in which such documents are interpreted by judges on the common sense principle by which any serious utterance would be interpreted by ordinary life. In other words, the common sense view relating to the implication and impact of provisions is the relevant consideration for interpreting a term of document so as to achieve temporal proximity of the end result." [36] Referring to aforesaid case law on the subject and in view of the judgment of the Hon'ble Supreme Court in the case of Vipulbhai M. Chaudhary v/s. Gujarat Cooperative Milk Marketing Federation Limited and Ors. reported in (2015) 8 SCC 1, it is the case of the appellant that looking to the objective of 73rd Page 56 of 63 C/LPA/543/2017 CAV JUDGMENT Constitutional Amendment that the stability and continuity of the Panchayat is intended and further Gujarat Panchayats Act, 1993 is enacted only to bring law of Panchayat in tune with the constitutional amendment. Unless reasonable time for prohibiting moving of no confidence motion is read into Section 56 of the Gujarat Panchayats Act, 1993, it will run contrary to the object and spirit of the constitutional amendment. It is also the case of the appellant that if composite scheme of the Pancahayat Act is looked into, it is clear that unless elected Sarpanch is allowed to work for reasonable time after election, it is not open to the members of the Panchayat to move no confidence motion immediately after election. It is submitted that if same is allowed, it will destroy the object and spirit of 73rd Constitutional Amendment Act, 1992.
[37] Learned Additional Advocate General appearing for the State and learned Senior Counsel Mr. D.C. Dave appearing for the respondents by placing reliance on the judgments in the case of Union of India v/s. Namit Sharma reported in (2013) 10 SCC 359 and Bharat Aluminium Company v/s. Kaiser Aluminum Technical Service Inc. reported in (2012) 9 SCC 552 have submitted that in view of clear language under section 56 of the Gujarat Panchayats Act, which is unambiguous, it is not open to interpret the provisions Page 57 of 63 C/LPA/543/2017 CAV JUDGMENT of Section 56 of the Gujarat Panchayats Act, but at the same time, in view of the judgment in the case of Vipulbhai M. Chaudhary v/s. Gujarat Cooperative Milk Marketing Federation Limited and Ors. reported in (2015) 8 SCC 1, provisions of the statute are to be interpreted keeping in mind object and spirit of Constitutional Amendment Act, 1992. By applying aforesaid principle, it is always open for the Courts to interpret provisions keeping in mind object and reasons of the statute and also constitutional background. We are unable to accede to submission made by learned Senior Counsel Mr. D.C. Dave that principle of reading into or reading down is to be applied only in cases where vires is challenged. Even in case, where vires is not challenged, if any provision of statute falls for interpretation, it is always open for the Court to interpret such provision having regard to object and reasons of the statute and constitutional background for such statute.
[38] In the case of Vipulbhai M. Chaudhary v/s. Gujarat Cooperative Milk Marketing Federation Limited and Ors. reported in (2015) 8 SCC 1, the Hon'ble Supreme Court while holding that in absence of any provision, no confidence motion can be moved against elected President of the Cooperative Societies, has also issued guidelines noticing restriction for moving no confidence motion Page 58 of 63 C/LPA/543/2017 CAV JUDGMENT immediately after election in various States under Cooperative Societies Act, Municipal Act and Panchayat Act in the country. As a measure of guidelines, in the aforesaid judgment, the Hon'ble Supreme Court has held that no confidence motion cannot be moved for a period of two years from the date of election and also further held that similar attempt to move no confidence motion cannot be made for a period of one year, once it is failed. Looking at Chapters IX, IXA and IXB of the Constitution of India, having similar object and reasons, said amendments were made in the Constitution. [39] In view of the fact that continuity and stability of Panchayati Raj Institutions is one of the objectives of Constitutional 73rd Amendment Act, 1992, if no confidence motion is moved against elected Sarpanch immediately after election, without even permitting said elected Sarpanch to work for reasonable time to discharge his / her functions, and obligation as contemplated under section 55 of the Panchayats Act, any move for removal by way of no confidence motion immediately after election will run contrary to the spirit and object behind 73rd Constitutional Amendment Act, 1992. [40] Though the appellant is elected in the election held on 27.12.2016 by the qualified voters of Panchayat, she is sought to be Page 59 of 63 C/LPA/543/2017 CAV JUDGMENT removed by way of no confidence motion by the members of Panchayat barely within a period of one month from the date of declaration of election. Though no reasons are required to be mentioned for moving no confidence motion, but unless elected Sarpanch is allowed to work for reasonable time, moving no confidence motion on the allegation that members of the Panchayat have lost confidence is illegal and arbitrary. If the same is permitted, it will result in vicious circle, as much as, there is no disqualification attached once Sarpanch is removed by way of no confidence motion, unlike disqualification attached to removal as contemplated under Section 57 of the Panchayats Act. It is fairly well settled that if a person is removed by way of no confidence motion, it is neither censure motion nor punitive one and it will not attach any disqualification for future contest.
[41] Once elected candidate is removed by way of no confidence motion, resulting in vacancy, again the very same person may contest and also win the immediate election. Same cannot be the scheme under the provisions of the Gujarat Panchayats Act, 1993, which is enacted to bring law relating to panchayat in tune with provisions under Chapter IX of the Constitution of India. Page 60 of 63 C/LPA/543/2017 CAV JUDGMENT [42] Then the next question which arises is, in absence of any restriction for a particular time under section 56 of the Act, what should be the reasonable time, within which time no confidence motion cannot be permitted, so as to read into section 56 of the Gujarat Panchayats Act. Reasonable time is nothing but a time that is fairly required to do whatever is required to be done, conveniently under the permitted circumstances. Reasonable time varies from the contextual meaning, under which it is used. In short, the reasonable time is any time which is not manifestly unreasonable under the circumstances.
[43] Under section 13 of the Gujarat Panchayats Act, 1993, every panchayat, unless sooner dissolved under this Act shall continue for five years from the date appointed for its first meeting and no longer. Keeping such provisions in mind, and executive functions entrusted to the elected Sarpanch under Section 55 of the Panchayat Act, and object of the 73rd Constitutional Amendment Act, 1992 i.e. continuity and stability of Panchayati Raj institutions, we deem it appropriate that reasonable time of one year should be considered as reasonable time, within which time, no motion could be permitted for removal of elected Sarpanch by way of no confidence motion as contemplated under section 56 of the Gujarat Panchayats Act from Page 61 of 63 C/LPA/543/2017 CAV JUDGMENT the date of declaration of result. Similarly, once, no confidence motion is moved and defeated, same cannot be permitted for a period of one year from the date of such defeat.
[44] So far as President of Taluka Panchayat is concerned, initially period can be of one year from the date of declaration of result, within which time, no motion can be permitted for removal of elected President of Taluka Panchayat. However, keeping in mind tenure of elected President of Taluka Panchayat being only two and half years, once motion is defeated, same can be permitted to be moved only after six months from the date of defeat. [45] We have issued aforesaid directions, in absence of any specific provision for prohibiting no confidence motion after declaration of election against Sarpanch and UpSarpanch under Section 56 of the Gujarat Panchayat Act, 1993 and so far as President of Taluka Panchayat under Section 70 of the Gujarat Panchayat Act, 1993. We make it clear that it is open for the competent authority to make suitable amendment in aforesaid provisions. [46] For the aforesaid reasons, the Letters Patent Appeal No.543 of 2017 is allowed. The order dated 03.04.2017 passed by the Page 62 of 63 C/LPA/543/2017 CAV JUDGMENT learned Single Judge in Special Civil Application No.2508 of 2017 is quashed and set aside. Consequently, the communication dated 10.02.2017 and further communication dated 04.04.2017 are quashed and set aside. Consequently, the meeting held on 06.04.2017 to the extent of considering no confidence motion against the appellant also stands quashed. No order as to costs. The Civil Applications also stand disposed of.
Order in Letters Patent Appeal No.1128 of 2017 and Special Civil Application No.11904 of 2017 For the reasons recorded in Letters Patent Appeal No.543 of 2017, the Letters Patent Appeal No.1128 of 2017 stands dismissed as infructuous and Special Civil Application No.11904 of 2017 is allowed by following the judgment. Consequently, notice dated 12.06.2017 and communication dated 03.07.2017 are quashed and set aside. Connected Civil Applications also stand disposed of.
(R.SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J) SATISH Page 63 of 63