Gujarat High Court
Ramabhai Devabhai Odedara vs State Of Gujarat on 19 January, 2021
Author: J. B. Pardiwala
Bench: J.B.Pardiwala, Ilesh J. Vora
C/SCA/9869/2018 ORDER
IN THEHIGHCOURTOF GUJARATAT AHMEDABAD
R/SPECIALCIVILAPPLICATIONNO. 9869of 2018
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RAMABHAIDEVABHAIODEDARA Versus STATEOF GUJARAT& 5 other(s) ============================================================================== Appearance:
MRBMMANGUKIYA(437)for the Petitioner(s)No. 1 MS BELAA PRAJAPATI(1946)for the Petitioner(s)No. 1 MRCHINTANDAVE,ASST.GOVERNMENTPLEADER(1)for the Respondent(s)No. 1,5,6 MRHS MUNSHAW(495)for the Respondent(s)No. 2,4 MRRAXITJ DHOLAKIA(3709)for the Respondent(s)No. 5 MR.HIRENM MODI(3732)for the Respondent(s)No. 10,11,12,3,7,8,9 MR.KARNAH DHOMSE(6684)for the Respondent(s)No. 3 ============================================================================== CORAM: HONOURABLE MR. JUSTICE J.B.PARDIWALA and HONOURABLE MR. JUSTICE ILESH J. VORA Date: 19/01/2021 ORALORDER (PER: HONOURABLEMR. JUSTICEJ.B.PARDIWALA)
1. By this Writ Application under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs :-
"(A) Be pleased to issue a writ of prohibition or in the nature of prohibition or any other appropriate writ, order or direction and hold and declare that the passing of motion of no confidence against the petitioner is ex-facie illegal, arbitrary and ultra-vires;
(B) Be pleased to issue a writ of mandamus or in the nature of mandamus or any other appropriate writ, order or direction and hold and declare that the proceedings preferred by the petitioner before the Taluka Development Officer and the Appeal Committee of the District Panchayat are of no consequences since no such proceedings are maintainable against passing of motion of no confidence;
(C) Be pleased to issue a writ of mandamus or in the nature of mandamus or any other appropriate writ, order or direction, and quash and set aside the Notification dated June 25, 2018 issued by the State Election Commission for holding election of the Sarpanch of Beran Gram Panchayat;Page 1 of 15 Downloaded on : Wed Jan 12 03:12:05 IST 2022 C/SCA/9869/2018 ORDER
(D) Pending admission, final disposal of this petition be pleased to stay operation, implementation and execution of the Notification dated June 25, 2018 issued by the State Election Commission for holding election of the Sarpanch of Beran Gram Panchayat;
(E) Pending admission, final disposal of this petition be pleased to stay operation, implementation and execution of resolution recording motion of no confidence recorded against the petitioner in the meeting of the Gram Panchayat held on June 1, 2017 and be further pleased to direct that no respondent shall prevent the petitioner from discharging his duties as the Sarpanch of Beran Gram Panchayat;
(F) Any other and further orders which this Hon'ble Court deems just and proper may please be granted in the interest of justice."
2. The facts giving rise to this Writ Application may be summarized as under:-
a) The writ applicant was elected as the Sarpanch of the Beran Gram Panchayat, District Porbandar sometime in April 2017. The first meeting of the Gram Panchayat was convened on 08.05.2017. There are in all 7 members of the Gram Panchayat and one Sarpanch. It appears that within 23 days from the date, the writ applicant was elected and took charge as the Sarpanch of the Gram Panchayat, the respondents No.7 to 12 herein in their capacity as the members of the Gram Panchayat moved a motion of no confidence dated 12.05.2018 against him. On 01.06.2017, a meeting was convened to consider the motion of no confidence moved by the 6 members of the Gram Panchayat. The Deputy Sarpanch presided over the meeting convened on 01.06.2017 and the motion was passed with 2/3rd majority.
b) The writ applicant being aggrieved and dissatisfied with the manner in which he came to be removed as the Sarpanch took up the matter with the Taluka Development Officer under Section 249 of the Gujarat Panchayat Act, 1993. The Taluka Development Officer by his order dated 19.06.2018 declined to interfere.Page 2 of 15 Downloaded on : Wed Jan 12 03:12:05 IST 2022 C/SCA/9869/2018 ORDER
c) The writ applicant thereafter preferred an Appeal against the order passed by the Taluka Development Officer before the Appeal Committee of the District Panchayat, Porbandar. The Appeal Committee vide its resolution dated 03.03.2018 dismissed the Appeal preferred by the writ applicant.
d) Being dissatisfied with the aforesaid, the writ applicant is before this Court with the present writ application.
3. Mr. B.M. Mangukiya, the learned Counsel appearing for the writ applicant vehemently submitted that the writ applicant could not have been removed as the Sarpanch of the Gram Panchayat by moving a motion of no confidence within a period of 23 days from the date the writ applicant came to be elected as the Sarpanch. He would argue that even other wise there was no good ground for the 6 members of the Gram Panchayat to move the motion of no confidence. According to Mr. Mangukiya, the issue raised in this writ application is squarely covered by a Division Bench of this court rendered in the case of Shivangiben Chetankumar Patel v. State of Gujarat reported in 2019 (2) GLR 865. Mr. Mangukiya also invited the attention of this Court to Section 56 of the Gujarat Panchayats Act, 1993 as well as to the relevant Rules governing the removal of the Sarpanch by way of motion of no confidence. In such circumstances referred to above, Mr. Mangukiya prays that there being merit in his writ application the same may be allowed and the impugned order be quashed and set aside.
4. On the other hand, this writ application has been vehemently opposed by Mr. Hiren N. Modi, the learned Counsel appearing for the respondents No.3, 7 to 12 (members of the Gram Panchayat). Mr. Modi would submit that the dictum as laid in the judgment referred to above will have no application in the present case as in the case of Shivangiben (supra) , the motion of no confidence was not passed and the matter was decided at a point of time when the motion of no Page 3 of 15 Downloaded on : Wed Jan 12 03:12:05 IST 2022 C/SCA/9869/2018 ORDER confidence was pending. He would submit that legality and validity of the proceedings of the meeting was looked into by the Taluka Development Officer and also by the Appeal Committee of the District Panchayat. Both the authorities declined to interfere. In such circumstances referred to above, Mr. Modi prays that there being no merit in this writ application the same be rejected.
5. We also heard Mr. Raxit J. Dholakia, the learned Counsel appearing for the respondent No.5 - the State Election Commission, Mr. H.S. Munshaw, the learned Counsel appearing for the respondents No.2 and 4 and Mr. Chintan Dave, the learned Assistant Government Pleader for the State respondents.
6. Having heard the learned Counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether the writ applicant could have been removed as Sarpanch of the Gram Panchayat by moving a motion of no confidence within a period of 23 days from the date he came to be elected as Sarpanch.
7. Before adverting to the rival submissions canvassed on either side, we must first look into a few relevant provisions of law.
Section 56 of the Act, 1993 reads thus :-
"56. (1) Any member who intends to move a motion of no confidence against the Sarpanch or the Upa-Sarpanch may give notice thereof in the prescribed form to the panchayat concerned. If the notice is supported by one half of the total number of members of the panchayat concerned, the motion may be moved.
(2) Where in the case of the Sarpanch or, as the case may be, the Upa-
Sarpanch, the motion is carried by a majority of not less than two-thirds of the total number of the members of the panchayat, the Sarpanch or, as the case may be, the Upa-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 Upa-Sarpanch, shall Page 4 of 15 Downloaded on : Wed Jan 12 03:12:05 IST 2022 C/SCA/9869/2018 ORDER 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 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 Sarpanach fails to call such meeting, the Secretary of the panchayat shall forthwith make a report thereof the competent authority and thereupon the competent authority shall call a meeting of the panchayat within a period of fifteen days from the date of the receipt of the report."
Rule 20 of the Panchayats (Procedure) Rules, 1997 reads thus :-
"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 Up-Sarpanch/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 notion is given jointly by more than one 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 sub-rule (1) shall forward therewith three additional copies thereof to the Secretary who shall deliver one copy to the Sarpanch/President, one copy to the Up-
Sarpanch/Vice-President and one copy.
(i) to the taluka Development Officer where the motion relates to the Sarpanch or Up-Sarpanch, or
(ii) to the District Development Officer where the motion relates to the President or Vice-President of a taluka panchayat, or
(iii) to the Development Commissioner where the motion relates to the President or Vice-President of a district panchayat."
8. This Court while issuing Notice passed the following order dated 29.06.2018 :-
"1. Petitioner was an elected Sarpanch of Beran Gram Panchayat. The elections were declared in April, 2017. The first meting of the panchayat was held on 08.05.2017. On 12.05.2017, six out of eight of Page 5 of 15 Downloaded on : Wed Jan 12 03:12:05 IST 2022 C/SCA/9869/2018 ORDER the members of the panchayat moved a motion of no confidence against the petitioner. The business was transacted during the meeting of the panchayat on 01.06.2017. Six members voted for the motion, two against the motion. Thus, the motion was passed with more than 2/3rd majority.
2. Counsel for the petitioner submitted that moving of the no confidence motion within barely four days of the petitioner assigning the charge is directly against the judgment of this Court rendered in case of Shivangiben Chetankumar Patel v. State of Gujarat passed in Letters Patent Appeal No.543 of 2017 and connected appeals, in which, the Court has prescribed a minimum period of one year from the date of declaration of result of the election to the post of Sarpanch of the panchayat before permitting circulation of motion no confidence.
3. NOTICE, returnable on 27.07.2018. The respondents shall not conduct fresh election for the post of Sarpanch. Direct service today is permitted. "
9. We shall now look into the judgment delivered by the Division Bench of this Court in the case of Shivangiben (supra). We quote the relevant observations :-
"[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 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 Page 6 of 15 Downloaded on : Wed Jan 12 03:12:05 IST 2022 C/SCA/9869/2018 ORDER 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 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 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) Page 7 of 15 Downloaded on : Wed Jan 12 03:12:05 IST 2022 C/SCA/9869/2018 ORDER 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."
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, Sarpanch is elected by ballot, by the qualified voters of the village, whereas, the Up- Sarpanch 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 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 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 Page 8 of 15 Downloaded on : Wed Jan 12 03:12:05 IST 2022 C/SCA/9869/2018 ORDER 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 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 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, Page 9 of 15 Downloaded on : Wed Jan 12 03:12:05 IST 2022 C/SCA/9869/2018 ORDER 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 selfgovern ments prevailing in many of the States as above, we direct that in the case of cooperative societies registered under any Central or State law, a motion of no confidence against an office bearer shall be moved only after two years of his assumption of office. In case the motion of no confidence is once defeated, a fresh motion shall not be introduced within another one year. A motion of no confidence shall be moved only in case there is a request from onethird of the elected members of the Board of Governors/Managing Committee of the cooperative society concerned. The motion of no confidence shall be carried in case the motion is supported by more than fifty per cent of the elected members present in the meeting.
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 byelaws 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 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 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 Page 10 of 15 Downloaded on : Wed Jan 12 03:12:05 IST 2022 C/SCA/9869/2018 ORDER Cooperative Societies Act, 1961, no requisition for a special meeting shall be made within a period of six months 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 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 constituti tional 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. 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 Page 11 of 15 Downloaded on : Wed Jan 12 03:12:05 IST 2022 C/SCA/9869/2018 ORDER 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 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 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 Page 12 of 15 Downloaded on : Wed Jan 12 03:12:05 IST 2022 C/SCA/9869/2018 ORDER 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 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 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 Page 13 of 15 Downloaded on : Wed Jan 12 03:12:05 IST 2022 C/SCA/9869/2018 ORDER 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 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. [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."
10. Thus, the dictum of law as laid down in the aforesaid judgment of this Court is that the continuity and stability of the Panchayati Raj Institutions is one of the objectives of the Constitutent 73rd Amendment Act. If any motion of no-confidence is moved against the elected Sarpanch immediately after election without even permitting the said elected Sarpanch to work for a reasonable time, the same would run contrary to the spirit and objective behind the 73rd Constitution Amendment Act, 1992.
Page 14 of 15 Downloaded on : Wed Jan 12 03:12:05 IST 2022 C/SCA/9869/2018 ORDER11. We enquired with the learned Counsel appearing for the respondents to make their submissions as regards the decision of this Court rendered in the case of Shivangiben (supra). The only reply given to us is that the said judgment has been carried to the Supreme Court and the matter is pending as on date. We take notice of the fact that the judgment of this Court in the case of Shivangiben (supra) has not been stayed from its operation. The matter may be pending as on date before the Supreme Court. However, we are bound by the decision of the Co-ordinate Bench as on date.
12. In view of the dictum of law as laid in the case of Shivangiben (supra), we are left with no other option but to allow this writ petition and quash all the proceedings and the orders passed by the authorities below concerned.
13. In the result, this writ petition succeeds and is hereby allowed. It is declared that the passing of the motion of no confidence against the writ applicant was ex-facie illegal and contrary to the dictum as laid down by this Court in the case of Shivangiben (supra). The order passed by the Taluka Development Officer as well as the Appeal Committee of the District Panchayat also stands quashed and set aside. Now, there is no question of going further with the programme of election declared earlier, i.e. for the purpose of electing a new Sarpanch.
Sd/-
(J. B. PARDIWALA,J) Sd/-
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