Gujarat High Court
Laljibhai Ramjibhai Makwana vs The District Developement Officer on 27 October, 2021
Author: Aravind Kumar
Bench: Aravind Kumar
C/LPA/930/2021 CAV JUDGMENT DATED: 27/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 930 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 8520 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
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1 Whether Reporters of Local Papers may be allowed yes
to see the judgment ?
2 To be referred to the Reporter or not ? yes
3 Whether their Lordships wish to see the fair copyNo
of the judgment ?
4 Whether this case involves a substantial question--
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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LALJIBHAI RAMJIBHAI MAKWANA
Versus
THE DISTRICT DEVELOPEMENT OFFICER
==========================================================
Appearance:
MR BM MANGUKIYA(437) for the Appellant(s) No. 1
MS BELA A PRAJAPATI(1946) for the Appellant(s) No. 1
for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
ARAVIND KUMAR
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 27/10/2021
CAV JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR) Page 1 of 21 Downloaded on : Fri Oct 29 08:27:01 IST 2021 C/LPA/930/2021 CAV JUDGMENT DATED: 27/10/2021
1. This intra-court appeal lays a challenge to the correctness and legality of the judgment dated 29.9.2021 passed by learned Single Judge in Special Civil Application No.8520 of 2021 whereunder the challenge made to the Resolution dated 5.5.2021 passed in the meeting of Gram Panchayat, Sejakpur, whereby No Confidence Motion moved against the appellant herein (for the purposes of convenience, hereinafter referred to as 'petitioner') came to be accepted and Special Civil Application came to be dismissed.
2. Brief background of the case is as under:-
2.1 Election to the Gram Panchayat, Sejakpur was held during December, 2016 in which election, petitioner contested for the seat reserved for Scheduled Caste and was declared elected. Appellant was elected as Sarpanch of the Gram Panchayat which term was for a period of five years i.e. till December, 2021.
2.2 Six members of the Gram Panchayat moved a No Page 2 of 21 Downloaded on : Fri Oct 29 08:27:01 IST 2021 C/LPA/930/2021 CAV JUDGMENT DATED: 27/10/2021 Confidence Motion against the petitioner on 26.8.2019 and said No Confidence Motion was submitted to Taluka Development Officer, who in turn, forwarded a communication dated 16.9.2019 intimating the members of the Gram Panchayat including the petitioner that a meeting had been convened on 20th September, 2019 for passing the Motion of No Confidence against the appellant. In the meeting which came to be convened on 20.9.2019 the Motion of No Confidence moved against petitioner was considered and all the members including petitioner was present at said meeting. Five members voted in favour of passing the Motion of No Confidence and four members voted against moving the Motion of No Confidence. Therefore, 1st respondent recorded that No Confidence Motion was not passed with 2/3 of the total members of Panchayat and accordingly it was recorded that Motion of No Confidence had not been passed against the petitioner.
2.3 Subsequently on 23.3.2021, another Motion for No Confidence was moved by six members of the Gram Panchayat alleging that petitioner was indulging in Page 3 of 21 Downloaded on : Fri Oct 29 08:27:01 IST 2021 C/LPA/930/2021 CAV JUDGMENT DATED: 27/10/2021 corruption in certain construction works. Said No Confidence Motion was forwarded by Talati-cum-Mantri to Taluka Development Officer, Chuda by communication dated 10.4.2021 stating therein that Sarpanch has to call for a meeting of Gram Panchayat for the purposes of discussion of Motion of No Confidence moved against petitioner within a period of 15 days. Taluka Development Officer issued a notice on 28.4.2021 convening the meeting of Gram Panchayat on 5.5.2021 at 11 a.m. for the purposes of discussion of No Confidence Motion.
Though petitioner requested for cancellation of the meeting on account of pandemic of Covid-19 prevalent, meeting as scheduled was held on 5.5.2021 and same was discussed at item No.1 of agenda and in the said meeting, nine members including the petitioner were present, out of whom, six members voted in favour of No Confidence Motion moved against petitioner, whereas three members voted against the Motion of No Confidence. Thus, number of members voted in favour of the Motion being 2/3 of the total number of members, Motion of No Confidence was passed. Taluka Development Officer, Chuda vide Page 4 of 21 Downloaded on : Fri Oct 29 08:27:01 IST 2021 C/LPA/930/2021 CAV JUDGMENT DATED: 27/10/2021 communication dated 10.5.2021 addressed to Talati-cum- Mantri, Sejakpur Gram Panchayat intimated that charge of Sarpanch has been handed over to Upa-Sarpanch. 2.4 Petitioner challenged the Motion of No Confidence moved against him before Development Commissioner by filing an application on 18.5.2021 and was intimated that said application was not maintainable before Development Commissioner by communication dated 18.5.2021. Hence, Special Civil Application was filed under Article 226 of the Constitution of India challenging the Resolution dated 5.5.2021 recording No Confidence Motion against the petitioner and said Special Civil Application came to be dismissed by the learned Single Judge by arriving at a conclusion that there is due compliance of Section 56 of the Act in as much as the Resolution itself disclosed that petitioner though had participated in the meeting had not spoken at the meeting held on 5.5.2021 in which the No Confidence Motion was moved against the petitioner. Hence, this intra-court appeal has been preferred by unsuccessful petitioner.
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C/LPA/930/2021 CAV JUDGMENT DATED: 27/10/2021
3. We have heard Mr. B.M.Mangukia, learned counsel appearing on behalf of Ms. Bela A. Prajapati for appellant and we are of the considered view that this is not a fit case for issuance of notice and/or the appeal being admitted for the reasons indicated hereunder:-
3.1 The thrust of the argument of learned counsel appearing for the petitioner is that Section 56 of the Act mandates that Sarpanch or Upa-Sarpanch against whom a Motion of No Confidence is moved shall have a right to speak or otherwise to take part in the proceedings of the meeting and learned Single Judge of this Court in Geetaben Bharatbhai Patel Vs. State of Gujarat reported in 2006(1) GLH 91 has held that the requirement of sub-section (3) of Section 56 is mandatory in nature and said provision had been violated as petitioner was not given opportunity to speak. He would also elaborate his submission by contending that learned Singe Judge of this Court in the case of Suvarnaben Chetanbhai Raval Vs. State of Gujarat and 2 others in Special Civil Application No.13685 of 2014 disposed of on 24.12.2014 had quashed or set aside the Page 6 of 21 Downloaded on : Fri Oct 29 08:27:01 IST 2021 C/LPA/930/2021 CAV JUDGMENT DATED: 27/10/2021 Resolution recorded passing the Motion of No Confidence against the Sarpanch, on the ground that the Sarpanch had not been provided opportunity to address the House and in fact, the Division Bench in Ketan Laxmichand Shah Vs. Geetaben Bharatbhai Patel in Letters Patent Appeal No.1677 of 2005 by order dated 8.12.2005 had affirmed the judgment of learned Single Judge which has not been reversed or set aside by the Hon'ble Apex Court and, as such, on the date of No Confidence Motion moved against the petitioner, the judgment of Geetaben Bharatbhai Patel has held the field and thereby there is a clear violation of sub-section (3) of Section 56 of the Act in so far as the petitioner is concerned and, as such, the Resolution dated 5.5.2021 is bad in law. He would also contend that a person against whom No Confidence Motion is moved will have a right to speak and such person need not ask permission or seek leave to speak as it would be the duty of the person presiding the meeting to call upon such person against whom No Confidence Motion is moved to call upon such person to speak and in the instant case, record does not Page 7 of 21 Downloaded on : Fri Oct 29 08:27:01 IST 2021 C/LPA/930/2021 CAV JUDGMENT DATED: 27/10/2021 disclose that such opportunity to speak at the meeting in which the No Confidence Motion had been moved was extended to the petitioner and this by itself is sufficient to hold that there has been violation of sub-section (3) of Section 56. He would also submit that learned Single Judge committed a serious error in arriving at a conclusion that judgment of Geetaben's case rendered by learned Single Judge is per incuriam and learned Single Judge ought to have followed judgment of Geetaben as affirmed in Letters Patent Appeal by Division Bench which was binding on the learned Single Judge. Hence, he has sought for the appeal being admitted and prayer for same being allowed by setting aside the order of learned Single Judge and consequently allowing Special Civil Application No.8520 of 2021 by setting aside the Resolution passed by Gram Panchayat dated 5.5.2021.
4. Having heard the learned counsel appearing for the appellant, we notice that in Geetaben's case, learned Single Judge after analyzing sub-section (3) of Section 56 has held to the following effect:- Page 8 of 21 Downloaded on : Fri Oct 29 08:27:01 IST 2021
C/LPA/930/2021 CAV JUDGMENT DATED: 27/10/2021 "10.3 Section 56 of the said Act provides for motion of no confidence. Sub-section (1) of section 56 provides that any member who intends to move a motion of no confidence against the Sarpanch or Up-Sarpanch may give notice thereof in the prescribed form to the Panchayat concerned and if the notice is supported by one half of the total number of members of the Panchayat concerned, the motion may be moved. Sub-section (2) of section 56 provides that where a motion is carried against the Sarpanch or, as the case may be, the Up-Sarpanch by the majority of not less than two-thirds of the total number of the members of the Panchayat, the Sarpanch or, as the case may be, the Up-Sarpanch, 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. Subsection (3) of section 56 provides that notwithstanding anything contained in the Act or the Rules made thereunder, a Sarpanch or as the case may be, Up-Sarpanch 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). Sub-
section (5) of section 56 provides that notwithstanding anything contained in section 91 or 95 a meeting of the Panchayat for dealing with a motion of no confidence shall be called within a period of fifteen days from the date on which the notice of such motion is received by the Panchayat and if the Sarpanch fails to call such a meeting, the Secretary of the Panchayat shall forthwith make a report thereof to the competent authority and the competent authority shall call a meeting of the Panchayat within fifteen days from the date of receipt of Page 9 of 21 Downloaded on : Fri Oct 29 08:27:01 IST 2021 C/LPA/930/2021 CAV JUDGMENT DATED: 27/10/2021 the report. Section 56 of the said Act reads as follows:-
"56. Motion of no-confidence. (1) Any member who intends to move a motion of no confidence against the Sarpanch or the Up-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 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 Up-Sarpanch, the motion is carried by the majority of not less than two-thirds of the total number of the members of the Panchayat, the Sarpanch, as the case may be, the Up-Sarpanch, 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 Up-
Sarpanch, 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.) (4) When the offices of both the Sarpanch and Up-Sarpanch become vacant simultaneously, such officer as the Taluka Development Officer may authorize in this behalf shall, pending the election of the Sarpanch, exercise all the powers and Page 10 of 21 Downloaded on : Fri Oct 29 08:27:01 IST 2021 C/LPA/930/2021 CAV JUDGMENT DATED: 27/10/2021 perform 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 shall call a meeting of the Panchayat within a period of fifteen days from the date of the receipts of the report.""
5. This judgment was challenged in Letters Patent Appeal No.1677 of 2005 whereunder the Division Bench affirmed the order of learned Single Judge. It can be noticed at this juncture itself that respondent No.6 before learned Single Judge in Geetaben's case, who was the appellant in Letters Patent Appeal and who had challenged the order of learned Single Judge had raised a contention to the effect that the petitioner therein namely, the person against whom No Confidence Motion had been moved had not raised such a contention which was repelled by the Division Bench on the ground that such Page 11 of 21 Downloaded on : Fri Oct 29 08:27:01 IST 2021 C/LPA/930/2021 CAV JUDGMENT DATED: 27/10/2021 contention cannot be allowed to be urged as the appellant namely, the 6th respondent had clearly submitted that Court may proceed on the basis that the "finding of the Appeal Committee on the question of opportunity not being given to the petitioner to address the meeting", which fact had been acceded to by way of concession. It was thus observed by the Division Bench to the following effect:-
"2. Mr. Nagarkar, learned counsel for the appellant, has submitted that the learned Single Judge has erred in proceeding on the basis that the petitioner was not given opportunity to address the meeting. It is submitted that there was no restraint against the petitioner addressing the meeting and, therefore, the learned Single Judge has proceeded on an erroneous basis.
3. The appellant cannot be permitted to urge such a contention as the learned counsel for the appellant herein, who was respondent No.6 in the petition, had submitted that the Court may proceed on the basis that the finding of the appeal committee on the question of opportunity not being given to the petitioner to address the meeting has achieved finality."
Hence, the fact obtained discloses that on account of petitioner therein having conceded before the learned Page 12 of 21 Downloaded on : Fri Oct 29 08:27:01 IST 2021 C/LPA/930/2021 CAV JUDGMENT DATED: 27/10/2021 Single Judge that it may proceed on the basis of the records of the appeal committee and finding recorded by said committee which disclosed that petitioner therein had not been given opportunity which was sought for whereas the fact obtained in the instant case discloses that petitioner was very much present and after discussion the No Confidence Motion was put to vote and, as such, said judgments would not come to the rescue of appellant/petitioner herein.
6. Learned Single Judge has taken note of the judgment of the Division Bench rendered in Letters Patent Appeal No.1135 of 2018 decided on 31.8.2018 whereunder Coordinate Bench had examined an issue similar to the one obtained in the present case and has held that participation in the meeting had taken place by the person against whom No Confidence Motion had been moved without raising any objection or exercising the right to speak and, as such, it could not be violative of the relevant provision of the Act.
7. Learned Single Judge also took note of the Page 13 of 21 Downloaded on : Fri Oct 29 08:27:01 IST 2021 C/LPA/930/2021 CAV JUDGMENT DATED: 27/10/2021 judgment of yet another Division Bench rendered in Letters Patent Appeal No.983 of 2018 in the matter of Bharatbhai Ravjibhai Vadi Vs. State of Gujarat and others disposed of 4.8.2021 which had also considered Geetaben's case and had not chosen to interfere. To arrive at a conclusion that petitioner in the instant case had not made out a case to take a different view, as two later decisions are clearly applicable to the facts of the present case. Mr. Mangukiya, learned counsel for the appellant has made a valid attempt to contend that the learned Single Judge had opined that Geetaben's case is per incuriam, which is factually incorrect. On the other hand, it was the contention of learned counsel appearing for the petitioner before learned Single Judge that Geetaben's case held the field and latter judgment of the Division Bench rendered in Letters Patent Appeal No.1135 of 2018 on 31.8.2018 is per incuriam and is not a good law. It is in this background the learned Single Judge has taken note of the authoritative principle laid down by the Hon'ble Apex Court in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Page 14 of 21 Downloaded on : Fri Oct 29 08:27:01 IST 2021 C/LPA/930/2021 CAV JUDGMENT DATED: 27/10/2021 others reported in (2011)1 Supreme Court Cases 694 to arrive at a conclusion that judicial discipline commands that the latter decision would prevail when there are two judgments of Coordinate Benches. The expression 'per incuriam' is defined in Black's Law Dictionary, Ninth Edition as under:-
"Per incuriam-(Of a judicial decision) wrongly decided, usu. because the judge or judges were ill-informed about the applicable law."
8. In Young Vs. Bristol Aeroplane Co. Ltd. reported in (1946)1 All England Reporter 98 (HL), the House of Lords observed that expression "incuria" literally means "carelessness". In practice per incuriam appears to mean per ignoratium. English Courts have developed this principle in relaxation of the rule of stare decisis. The "quotable in law" is avoided and ignored if it is rendered "in ignoratium of a statute or other binding authority". The same has been accepted, approved and adopted by the Hon'ble Apex Court while interpreting Article 141 of the Page 15 of 21 Downloaded on : Fri Oct 29 08:27:01 IST 2021 C/LPA/930/2021 CAV JUDGMENT DATED: 27/10/2021 Constitution as it embodies the doctrine of precedents as a matter of law vide State of Bihar Vs. Kalika Kuer reported in (2003)5 SCC 448.
9. Hon'ble Apex Court in Bharat Petroleum Corpn. Ltd. Vs. Mumbai Shramik Sangha reported in (2001)4 SCC 448 has held that two Judge Bench is bound by the decision of Constitution Bench consisting of five judges and even if it doubts the correctness of that decision, the Course open is to order that the matter be heard by a third judge Bench and in conclusion it was held that the decision of a Larger Bench is binding.
10. It is trite law that where there are judgments of equi jurisdiction, the later decision prevails. The Hon'ble Apex Court in the matter of Union of India Vs. Nirala Yadav- (2014)9 SCC 457 has held that where the decision of an earlier larger Bench has been noticed and explained, then the decision of the later smaller Bench will be binding precedent. In the matter of Sunil Damodar Gaikwad Vs. State of Maharashtra reported in (2014)1 SCC 129, Hon'ble Apex Court has held that a decision which merely Page 16 of 21 Downloaded on : Fri Oct 29 08:27:01 IST 2021 C/LPA/930/2021 CAV JUDGMENT DATED: 27/10/2021 adds to the principle enunciated by a larger Bench or explained the earlier decision of a larger Bench will not be considered to be a decision in conflict with the earlier larger Bench. In the instant case, the learned Single Judge after having noticed Geetaben's case has rightly arrived at a conclusion that latter judgment of equi jurisdiction has considered not only Geetaben's case but has also discussed the tenor and language of sub-section (3) of section 56 of the Act to arrive at a conclusion that participation in the meeting would suffice to arrive at a conclusion that there is a due compliance of the mandate of sub-section (3) of Section 56.
11. At the cost of burdening this judgment, it requires to be noticed that learned Single Judge has noted and extracted the statement made by Talati-cum-Mantri who was respondent No.3 and who had filed an affidavit in Special Civil Application reiterating that there was due compliance of sub-section (3) of Section 56 whereunder 3rd respondent before learned Single Judge has categorically contended and stated that agenda of the Page 17 of 21 Downloaded on : Fri Oct 29 08:27:01 IST 2021 C/LPA/930/2021 CAV JUDGMENT DATED: 27/10/2021 meeting convened for the purposes of moving No Confidence Motion against the petitioner was served upon all members including petitioner and Upa-Sarpanch of the Gram Panchayat presided over the meeting and after discussion, No Confidence Motion moved against the petitioner was put to vote. It is also noticed by learned Single Judge that affidavit of 3 rd respondent at para 10 disclosed that petitioner was present at the meeting throughout, had even opposed the No Confidence Motion moved against him and had not even made an attempt to address at the meeting. In other words, there was no denial of opportunity to the petitioner to speak at the said meeting. At this juncture, if the language employed in sub-section (3) of Section 56 is perused, it would clearly indicate that person against whom No Confidence Motion is moved, "shall have a right to speak or otherwise to take part in the proceedings of such a meeting (including the right to vote)". The principle underlying behind this provision is to ensure that such person would be able to persuade or convince the members as to why said Motion of No Confidence should be dropped or in Page 18 of 21 Downloaded on : Fri Oct 29 08:27:01 IST 2021 C/LPA/930/2021 CAV JUDGMENT DATED: 27/10/2021 other words, it should not be carried forward. In a given case, if a person against whom No Confidence Motion is moved were to sit at the said meeting does not speak at the said meeting or participates in the meeting without any demur or objection and allows the No Confidence Motion to be moved against him, cannot turn around and contend that there is a duty cast on the part of the person who presided over the meeting to call upon such person to speak even if he is not willing and record such fact in the minutes of the meeting. This argument would only be stretching the logic to an illogical end or in other words, adding something to the Statute which is not there. Hence, we are of the considered view that we are in complete agreement with the judgment of the learned Single Judge rendered in Special Civil Application No.8204 of 2018 in the matter of Bharatbhai Ravjibhai Vadi Vs. State of Gujarat on 11-7-2018 whereunder it has been held that there is no right conferred on a person against whom No Confidence Motion is moved, to invite him to speak. Right to speak is inherent as provided in sub-section (3) of Section 56 and Page 19 of 21 Downloaded on : Fri Oct 29 08:27:01 IST 2021 C/LPA/930/2021 CAV JUDGMENT DATED: 27/10/2021 it would also be the choice or discretion of such person to exercise his right to speak and object to the Motion of No Confidence or otherwise participate in the proceedings without even objecting and such person would also be certified to remain silent or would be certified not to speak against the Motion of No Confidence. Right to remain silent is also inherent and it cannot be gainsaid that there is a statutory obligation on the part of the person presiding over the meeting to call upon such person to speak and record in the minutes of the meeting of such opportunity having been extended dehors the fact that the person having not sought for such opportunity being extended to speak at the meeting.
12. For the cumulative reasons aforesaid, we proceed to pass the following ORDER
(i) Letters Patent Appeal No.930 of 2021 stands dismissed and order dated 29.9.2021 passed Page 20 of 21 Downloaded on : Fri Oct 29 08:27:01 IST 2021 C/LPA/930/2021 CAV JUDGMENT DATED: 27/10/2021 by learned Single Judge in Special Civil Application No.8520 of 2021 is affirmed.
(ii) Costs made easy.
(ARAVIND KUMAR,CJ) (MAUNA M. BHATT,J) RADHAKRISHNAN K.V. Page 21 of 21 Downloaded on : Fri Oct 29 08:27:01 IST 2021