Gujarat High Court
Makwana Pravinbhai Gautambhai vs State Of Guajrat on 27 June, 2003
Equivalent citations: AIR 2004 GUJARAT 9
Author: C.K. Buch
Bench: C.K. Buch
JUDGMENT
1. The petitioners, by invoking the jurisdiction of this Court under Article 226 of the Constitution of India, have challenged the legality and validity of the orders passed and action taken by respondent no. 2- Development Commissioner, State of Gujarat in exercise of powers under sec. 253 of the Gujarat Panchayats Act, 1993 (hereinafter referred to as "the Act" for short). The impugned action and order under challenge are in connection with superseding the Thasara Village Panchayat of district Kheda. It is simultaneously challenged by the petitioners that the order passed by respondent no. 2, purported to have been passed on 27.12.2002 but despatched to Thasara Village Panchayat under a forwarding letter dated 19.2.2003 being an act ex-facie, illegal, arbitrary and malafide.
2(i). The following prayers are sought for by the petitioners in Special Civil Application No. 2137 of 2003 and Special Civil Application No. 2138 of 2003, that:
A) This Hon'ble Court may be pleased to admit and allow this petition.
B) This Hon'ble Court may be pleased to issue an appropriate writ, order or direction, quashing and setting aside the impugned order sought to have been passed on dated 27.12.2003, Annexure-E to this petition, by the respondent no. 2 herein, superseding the Thasara Village Panchayats, Thasara, in exercise of powers under Section 253 read with Section 116 (3) and (4) of the Gujarat Panchayats Act, 1993, despatched under forwarding letter dated 19.2.2003, Annexure-F to this petition;
C) Pending hearing and final disposal of this petition, this Hon'ble Court be pleased to stay and suspend the operation, implementation and execution including further execution of the impugned order stated to have been passed on 27.12.2002 by the respondent No. 2, Annexure at Annexure-E to this petition, and despatched under forwarding letter dated 19.02.2003, Annexure-F to this petition;
D) Pending hearing and final disposal of this petition, this Hon'ble Court be pleased to direct the respondent no. 6 to hand over back the charge to the elected body of members of the Thasara Village Panchayats; E) Pending hearing and final disposal of this petition, this Hon'ble Court be pleased to restrain the respondents, their agents and servants from filling up vacancy of posts of Sarpanch and Member of the Ward No. 5 of the Thasara Village Panchayats caused on account of the vacancies allegedly arisen on account of the order of supersession stated to have been allegedly passed on 27.12.2002 and despatched under forwarding letter dated 19.2.2003;
F) Ex-parte ad-interim relief in terms of prayers (C), (D) and (E) above may kindly be passed and the same be confirmed after notice to the respondents;
G) Be pleased to pass such other and further reliefs, as the facts and circumstances of the present case may require;
H) Be pleased to provided for the costs of this petition from the respondents;
2(ii) Pending hearing and while arguing the case of the present petitioners, they have prayed for mandatory orders and directions so that elected body of the Village Panchayats can be restored.
2(iii) Both these petitions were circulated for admission hearing on 6.3.2003 and on that day, notices were ordered to be issued, returnable on 11.3.2003 and the respondents were directed to show cause as to why interim mandatory relief should not be granted in favour of the petitioners considering the date of passing of the order by the Development Commissioner and the date of the result of the two bye-elections of the concerned village panchayat. The otherside has not responded with the reply affidavit on first returnable date, which according to me, is relevant to some extent, and ld. counsel appearing for the respondents has prayed for time and, therefore, the matter was adjourned to 13.3.2003.
3. On 13.3.2003, certain facts were brought to the notice of the court and after hearing ld. counsel appearing for the parties, the court passed following order:
"After considering the documents brought to the notice of the Court by ld. counsel Mr. Harin Raval for the petitioners, it is very likely that after hearing and affording opportunity, this Court may pass some orders which may go against the Development Commissioner Mr. P.D. Vaghela no. 2 and he may be fastened with the liability of expenses incurred and other costs entire by-election of Thasara Village Panchayats conducted by the State Election Commission between 15.1.2003 and the date of declaration of the result of the said election.
Hence, notice be issued to respondent no. 2Mr. P.D. Vaghela, Development Commissioner, State of Gujarat returnable on 20.3.2003 directing him to appear before this Court on the returnable date in personal capacity as well as in the capacity of Development Commissioner, State of Gujarat and to explain the contingencies emerging from various documents produced by the petitioners including relevant dates reflecting in these documents which are at page nos. 68, 75,77,78,80 to 84 and 86.
Today, it is rightly submitted by ld. counsel Mr. Raval that this court should pass order in the nature of mandamus and respondent State and respective District as well as Taluka Panchayats should be directed to revive the Thasara Panchayats facing illegal dissolution. However, in view of the fact that respondent no. 2 Development Commissioner has been asked to appear before this Court in person, such a mandatory type of order is required to be passed, than such an order should be passed in his presence and, therefore, today no such order is passed.
Direct service is permitted. Copy of this order be given told. AGP Mr. Dagli."
4(i) On 25.3.2003, the respondent no. 2 appeared in person and Ld. Addl. Advocate General Mr. Kamal Trivedi appeared with Mr. N.K. Dagli ld. AGP for the respondent-Government. The affidavit in reply filed by the respondent - District Development Officer and respondent no. 2- Development Commissioner are tendered and the same are on record. Rejoinder affidavit on behalf of petitioner no. 1 is also on record.
4(ii) Mr. Rawal ld. counsel appearing for the petitioners has insisted that this court should pass ad interim mandatory order as there is strong prima-facie case and all other relevant factors are in favour of the petitioners, especially when the otherside is served with the notice to show cause as to why the mandatory order at admission stage should not be passed. Considering the resistance and nature of the submissions made by Ld. Addl. Advocate General Mr. Trivedi and in the back ground of the facts that there are serious allegations against respondent no. 2 and the Government, it was suggested that both the petitions be heard on merits finally. Ld. counsel appearing for the parties have consented and hence, both these petitions are heard finally.
5. To appreciate the rival contentions raised by the parties and to appreciate their say, it would be appropriate to narrate the facts in brief.
5(i) The facts of Special Civil Application No. 2137 of 2003:
(a) The election of Thasara Village Panchayats District Kheda were held in the month of January, 2002 and one Sunilkumar Manubhai Patel was declared elected as Sarpanch of the Village Panchayats and in the first meeting, one Smt. Indiraben Parmar was elected as Deputy Sarpanch. Till January, 2002, there was an administrator appointed for the said village panchayat. Prior to holding of elections, the then Administrator prepared the budget and the same was sent for approval to the Taluka Panchayat in the month of December, 2001 or at any time prior to the election as per the provision of sec. 116 of the Act. The elected members who were present in the first meeting to elect the Deputy Sarpanch were not informed either by the Sarpanch or by the Administrator about the fact that the budget estimates have been received back from Takula Panchayats with comments. As the elected members were not satisfied with the working method of Sarpanch Shri Sunilkumar Patel, they have moved a motion of no confidence in accordance with the provisions of sec. 56 of the Act and the meeting was held for the purpose on 13.5.2002.
(b) The motion of no confidence was passed against the Sarpanch and he ceased to be the Sarpanch of Thasara Village Panchayats with effect from 17.5.2002. On that very day, an agenda was issued and the meeting was convened for considering the budget. Meanwhile, respondent no. 2 issued a notice to show cause to the village panchayat as to why it should not be superseded on the ground that there was a breach of mandatory provisions of sec. 116(A) of the Act. This show cause notice was received by the village panchayat on 22.5.2002, but it is contended by the petitioners that prior to the receipt of the notice, the meeting of the members of Thasara Village Panchayats had already considered the budget and by majority of 26 votes the budget estimates were passed. On 10.6.2002, the Thasara Village Panchayats resisted the said show cause notice and filed written reply.
(c) On 26.7.2002, the village panchayat was served with the order dated 26.6.2002 passed by respondent no. 2 superseding Thasara Village Panchayats. It is contended that the order is back dated otherwise this could not have taken a month's time. The aggrieved members of village panchayat challenged the legality and validity of the order of supersession by filing a petition under Article 226 of the Constitution of India, being SCA No. 6968 of 2002 before this Court. The order dated 3.10.2002 passed by this Court in the said petition is on record. The court allowed the said petition and quashed and set aside the order passed by respondent no. 2 superseding the village panchayat and remanded the matter back to respondent no. 2 with a direction to hear the entire matter afresh and it was clarified by the court that "it is for the Development Commissioner to arrive at a fresh decision on his own", observing that the Development Commissioner is, therefore, not right in coming to the conclusion that the provisions of sec. 116 of the Act are mandatory.
(d) On 12.11.2002, the members of Thasara Village Panchayats were called upon to make its representation on 25.11.2002 and in-charge Sarpanch of the village panchayat submitted a detailed representation on that day. (e) On 27.12.2002, the respondent no. 2 passed the impugned order again superseding Thasara Village Panchayat on the same grounds but the Thasara Village Panchayat was not informed about the passing of the order till 24.2.2003. It is contended by the petitioners that by letter dated 19.2.2003 copy of the impugned order allegedly passed on 27.12.2002 was forwarded to the village panchayat by respondent no. 2. On 6.1.2003, the fact of passing of the order of supersession of Thasara Village Panchayat has been published in the Government Gazette. On 15.1.2003 the Collector of district Kheda and the State Election Officer by a separate notification published the programme of bye-election for vacant post of Sarpanch and the member of ward no. 5 of the said village panchayat.
(f) On 9.2.2003 these elections were held and the Returning Officer declared the result of bye-election. Shri Dilipsinh Fatehsinh Jaiswal petitioner no. 1 of SCA No. 2138 of 2003 was declared elected as Sarpanch by majority and Shri Ashokkumar Mangaldas Dalvadi (Patel) -petitioner no. 2 of the said petition was declared as elected member of Ward No. 5 in the said bye-election. On 17.5.2003 the State Election Commission declared the result and the same was published in the Govt. Gazette. On 19.2.2003 as mentioned earlier, the order of superseding the entire body of Thasara Village Panchayat, allegedly passed on 27.12.2002 was came to be despatched by respondent no. 2 for the first time to the village panchayat. Before holding bye-election, the State Election Commission had asked for information about the vacant seat to District Panchayats. The details were submitted to the State Election Commission on 12.12.2002 but till 24.2.2003 the District Development Officer or Taluka Development Officer were never informed about the order passed by the respondent no. 2 on 27.12.2002.
(g) The affidavit-in-reply filed by the Deputy District Development Officer of Kheda District Panchayat reveals that the District Panchayat received the order of supersession of Thasara Village Panchayat on 24.2.2003 i.e. after publication of result of the bye-election on 17.2.2003. It is the stand of respondent no. 2 that though the proceedings under sec. 253 of the Act were pending with him as per section 15 and 61 of the Act, the procedure was followed for the purpose of bye-election and the proposal was forwarded to the State Election Commission on 21.12.2002 by Taluka Development Officer. According to respondent no. 2- Development Commissioner, his office has informed the Election Commission with respect to the pendency of the matter under sec. 253 of the Act as well as the order passed by this court vide letters dated 27.11.2002 and 9.1.2003. The grievance of respondent no. 2 is that inspite of this pending proceeding under sec. 253 of the Act, the Election Commission has held the election. After bye-election of both the vacancies i.e. Sarpanch and the Member from Ward No. 5 of the Village Panchayat. The petitioners of SCA No. 2138 of 2003 were declared elected but meanwhile, the decision for superseding the entire body of the village panchayat was taken in exercise of powers under sec. 253 of the Act. Of course, the so-called letter allegedly written by respondent no. 2 to Election Commission and the cause for written such letter and contents thereof are not narrated in detail in the reply affidavit. Copy of these letters and proof as to receipt of such letters by Election Commission are also not produced in support of the oral say. It is contended that Shri Sunilkumar Manubhai Patel against whom the No Confidence Motion was passed by thumping majority had contested the bye-election and he came to be defeated by petitioner no. 1 of SCA NO. 2138 of 2003.
(h) To appreciate the submissions on fact as well as the legal submissions advanced, I have called for the original file from the office of respondent no. 2 and the ld. Addl. Advocate General has arranged for the production of original file. I have perused the relevant papers and has taken mental note of certain facts. It would be appropriate to clarify that the facts so noticed are brought to the notice of ld. counsel appearing for the parties and especially to the ld. Addl. Advocate General for the State Government while returning the original file to Ld. AGP Mr. Dagli. (i) Undisputedly, on 24.2.2003 respondent no. 6 took over as the Administrator of the Thasara Village Panchayat and immediately on the next day i.e. 25.2.3002 the elected Sarpanch Shri Dilipsingh Fatesinh Jaiswal addressed an application to the Development Commissioner. The present petitions have been moved on 5.3.2003.
5(ii) The facts of SCA No. 2138 of 2003:
(a) The facts are mainly similar. The grounds challenging the legality of the order passed by the respondent no. 2 - Development Commissioner are also similar.
(b) Two petitioners who are declared elected in the bye-election held by the Election Commission have independently challenged the order as they were not parties in the earlier petitions filed before this court wherein the matter was remanded back to respondent no. 2. The grievance of these two petitioners mainly is that till 17.2.2003 the day on which their elections were declared in the Government Gazette, the decision allegedly taken on 27.12.2002 was not even communicated to any concerned authority namely District Development Officer, Taluka Development Officer or Thasara Village Panchayat itself. It is submitted that if Shri Sunilkumar Manubhai Patel who has contested the bye-election of Sarpanch could have succeeded than the order of supersession would not have seen the light of the day. It is the say also of the petitioners that the Sarpanch who has been elected by a valid bye-election cannot be superseded or thrown out in such a undemocratic manner. According to petitioners, Shri Dilipsingh Fatehsinh Jaiswal was earlier member of Ward No. 20 and has contested bye-election for filling up the post of Sarpanch. But as Shri Dilipsinh Fatehsinh Jaiswal is a member of Indian National Congress and the authorities having realised that village panchayat can be therefore be said to have been captured by the Sarpanch belonging to Indian National Congress only with a view to nullify the result of the bye-election, the impugned order has been passed with anti date of 27.12.2002. It is apparent from the fact that for the first time under the forwarding letter Annexure-F, the order came to be despatched to all concerned on 19.2.2003 and has been received by the Village Panchayat on 24.2.2003. Even the copy of the Govt. Gazette dated 6.1.2003 was neither received by any Panchayat especially the District Panchayats or Taluka Panchayat. It is not even the say of any of the party and especially, the respondents that the Election Commission was informed about the publication of Gazette on 6.1.2003 asking him to suspend the election process as there was no scope for any bye-election and the body of the village panchayat was not in existence on the relevant date of publication of notification and polling. In view of the serious allegations of mala-fide and the colourable exercise of powers colourably vested with the authority, namely respondent no. 2 and alleged back dating of the order, this court is supposed to pass a reasoned order otherwise it would not either be proper or appropriate to direct the State Government to restore the Thasara Village Panchayat nulifying the effect of supersession and to direct the State Government to accept and implement the result declared by the Election Commission in its true and legal spirit.
6. In the light of these disputed fact, the order passed by respondent no. 2 allegedly on 27.12.2002 under challenge whether is sustainable is the first question raised before the court by both the petitioners. It is submitted by Mr. Trivedi Ld. Addl. Advocate General that the order under challenge is a reasoned speaking order and gives details for the conclusion recorded by the authority and exercise of discretion against the panchayat. Mr. Trivedi Ld. Addl. Advocate General has attempted to impress upon that the members of the panchayat elected in the month of January, 2002 were playing sheer politics and with utmost irresponsibility and concentrated in uprooting the elected Sarpanch inspite of performing the statutory duties and functions which they were otherwise obliged to perform. The fact of passing of budget immediately in the first meeting held after removal of elected Sarpanch, itself suggest that the members of Panchayats were not serious about the passing of budgetary proposal received from Taluka Panchayat way back in the month of February, 2002. Political rivalry between the then Sarpanch and majority of other elected members of the body of the panchayat seems to have created a situation under which the panchayat could not pass the budgetary proposal before 31.3.2002 and that situation if is considered in light of the explanation given by the In-charge Sarpanch is held to be found unacceptable to the authority, than the authority is empowered to exercise the discretion against the panchayat and can pass appropriate orders dissolving or superseding the village panchayat in view of the scheme of Sec. 116 of the Act.
7. On careful reading of the order under challenge I do not find such logic or inference recorded by the authority. On the contrary, the first order superseding the Thasara Village Panchayat, as mentioned earlier, was challenged in this court and this court has held while dealing with the said writ petition moved, that the order is bad. While responding to the earlier writ petition, the stand taken by the State Government was different and it was submitted that the provisions are mandatory in nature and non-passing of budget within stipulated time, the Government has no option but to dissolve or supersede such panchayat by resorting to sec. 253 of the Act. It was not even, alternatively, submitted at that relevant point of time that the discretion has been exercised by the respondent no. 2 in passing the order under challenge. Both the orders i.e. earlier order passed by respondent no. 2 and the present one are on record and on plain reading of both these orders, it is clear that the impugned order is passed on the very same ground on which earlier order dated 26.6.2002 was passed without considering the effect of the judgment and order rendered in SCA No. 6968 of 2002 and the decision of this Court in the case of Nathalal Manilal Patel vs. A.R. Banerjee, Development Commissioner, reported in 1991(2) GLR P. 811. While passing the impugned order, the respondent no. 2 has observed to the effect that the observation made in the case of Nathalal Manilal Patel (Supra) is the finding recorded in that given case and the said decision has not laid down any ratio or has interpreted the relevant statutory provision. Two important decisions have been unartistically ignored by respondent no. 2 for the reasons best known to him. In absence of element of justification whereby it can be inferred that the cited decisions have been correctly distinguished than the act of ignoring the decision of this court by the quasi judicial authority or any other forum to which such decision is binding, cannot be held sustainable, on the contrary, it can be said to be a contemptuous conduct. While passing the order under challenge, the finding recorded by this court in SCA No. 6968 of 2002 has not been only ignored but the observations made in para-8 of the said decision is considered in isolation and by misinterpreting the language used. The decision of this Court in the said petition is now reported in 2002(3) GLH p. 692 (Thasara Village Panchayat vs. P.D. Vaghela & Ors.,). For the sake of brevity and convenience, it would be appropriate to refer some relevant part of the said decision, which reads as under:
"2. Election of Thasara Village Panchayats, the petitioner herein, took place in January, 2002. On the basis of the election of the Village Panchayats, the first meeting of the Village Panchayats was held on 21st January, 2002. Thereafter, the Sarpanch convened the meeting for approving the budget estimate on 27th March, 2002. However, in the aforesaid meeting, the Panchayats failed to pass the budget. Thereafter, the Sarpanch again called the meeting on 5th April, 2002 for approving the Budget. Even in the said meeting, the budget could not be approved. On May 13, 2002, the petitioner-Panchayat passed a No Confidence Motion against the Sarpanch and, thereafter, on 22nd May, 2002, the Village Panchayats, on a requisition of 23 members, called a meeting for passing the Budget and the Budget was passed in the said meeting. On the very same day, i.e. 22nd May, 2002, the Panchayats received a notice dated 20.5.2002 issued by the Development Commissioner, under the provisions of Section 253 of the Panchayats Act. By the aforesaid notice, the petitioner-Panchayat was asked to show cause as to why the Panchayats should not be dissolved under Section 253 of the Act for not passing the budget within the stipulated time, i.e. on or before 31st March, 2002.
3. xxxx xxx xxx xxx
4. The Development Commissioner thereafter, by his order dated 26.6.2002 came to the conclusion that there is a mandatory provision for passing the budget on or before 31st March of the current year under the provisions of Section 116(3) of the Act. The Development Commissioner came to the conclusion that the provision of section 116(3) is a mandatory provision and that the decision of the High Court in the case of Ramanlal Manilal and Another vs. A.R. Banerji, 1991(2) GLR 801, is a decision under the old Act of 1961, wherein there was no such mandatory provision which is now provided under Section 116(3) of the Act of 1993. In view of the aforesaid reasoning, the Development Commissioner, Gujarat State, Gandhinagar,by the impugned order, passed an order under Section 253 of the Act, dissolving the Thasara Village Panchayats under the provisions of Section 253 of the Act."
8(i) Resisting the said writ petition, the State Government and the Development Commissioner had taken the stand to the effect that the provisions of sec. 116(3) of the Act are mandatory and, therefore, it is lawful for the Government to form an opinion as contemplated by sec. 116(4) of the Act to the effect that whether the panchayat is competent to perform its duty imposed on it or functions entrusted to it under the provisions of the Act. This court after quoting both the relevant sections i.e. sec. 116 and sec. 253 of the Act, has observed that there is no express provision in sec. 116 of the Act to the effect that moment the panchayat fails to pass budget on or before 31st March of the current year, it shall stand dissolved or superseded. It is true that in view of the Gujarat Panchayats Act, 1993, the State Government is empowered to form an opinion about the incompetence of such panchayat to perform its duties in case it is found that the panchayat has failed to pass budget within stipulated time. So, the non-passing of budget in stipulated time must have resulted into incompetence in performance of its duty or functions impairment resulting into disability to perform statutory obligations and day to day administration. So, in absence of certain positive facts and evidence forming of an opinion on hypothesis or conjecture cannot sustain. When the discretion is to be exercised or presumptive finding is to be recorded than the same should be done with utmost objectivity when a democratically elected body is to be removed by dissolving or superseding it. There is no iota of such finding in the order under challenge. The ratio of the decision in case of Luvara Gram Panchayats vs. State of Gujarat, rendered in SCA No. 6492 of 1997 dated 29.12.1997 is relevant. This court (Coram: J.M. Panchal, J.) has threshed out the scheme of the Act and has recorded a finding in relevant para-7, 8 and 9 of the decision. It is not necessary to reproduce these paras as the same has been reproduced by this court (Coram: P.B. Majmudar, J.) while dealing with the earlier petition filed by the Thasara Village Panchayats (supra).
8(ii).The accepted proposition of law today is that the provision to approve the budget estimate before 31st March is discretionary and not mandatory and the Division Bench has laid down in case of Nathalal Manilal (supra) that the provision to approve the budget estimate before 31st March being discretionary provision not requiring strict compliance and if the budget estimate is not approved, such budget estimate can be approved within reasonable time thereafter depending on the facts and circumstances of the case. In more than one decision, this Court has said that the budget estimate is not approved would not necessarily lead to a conclusion that the panchayat is either incompetent or has rendered its competence or disabled in performing its statutory function. While dealing with the earlier petition filed by the Thasara Village Panchayats, this court has observed that :
"It is required to be noted that, in the instant case, the elected body took charge and the first meeting was held on 21st January, 2002 and, prior to that, the Administrator was in charge of the affairs of the Panchayats. In a given case, if the elected body, after the election, takes charge either in the middle of March of a current year, then, it will be too much to except that within a few days, without application of mind, Panchayats must pass the budget before 31st March of the current year. Even on behalf of the respondents, both Ms. Sonal Vyas, learned AGP, and Mr. Munshaw, also fairly conceded that in a given case, it may happen that, as the election can be held at any point of time, the elected body may take charge even a few days prior to 31st March of the current year. In such circumstances, if it is to be presumed that moment the budget is not passed by 31st March, even the elected body, which might have taken its birth a few days back, is required to be dissolved simply because the the budget is not passed by 31st March 2002, then, it may result into an absurd situation......
.......Considering the aforesaid aspect, in my view, it is not a sine qua non that moment budget is not passed, the Panchayats must be dissolved and in a given case, while forming opinion, under Section 116(4), the Government may form an opinion even in favour of the Panchayats if there are justifiable reasons given by the Panchayats for not passing such budget."
The Court has further observed in para-10 of the said decision that:-
"10. In order to substantiate his say that word 'shall' can be considered 'may' in a given case. Mr. Patel has relied upon the decision in Owners and Parties interested in M.V. "Vali Pero" vs. Farnandeo Lopez and others, AIR 1989 SC 2206. However, for the reasons stated above, in my view, there is nothing in Section 116 to suggest that passing of budget by 31st March is a mandatory provision, and moment budget is not passed by 31st March, there is no option for the State Government but to dissolve the said Panchayats. At the cost of repetition, I may state that now, in view of insertion of sub-section (4), it is open for the State Government to form an opinion under Section 116(4) and on the basis of forming such opinion, an additional ground is available for the State Government to dissolve a Panchayats under Section 253 of the Act. Under the old Act, there was no such provision dissolving the Panchayats for not passing the budget and the Division Bench had taken the view that not passing of budget is not a mandatory provision. Under these circumstances, it was not possible for the Government to dissolve a Panchayats if it had failed to pass a budget, but, now, in view of the provisions available for the State Government to dissolve a Panchayats in case the budget is not passed within the stipulated time and thereafter, on the basis of appropriate material on record, opinion to that effect is formed. Since in the instant case, the Development Commissioner has not considered the explanation given by the Panchayats and that the view taken by the Development Commissioner is that, the moment the budget is not passed, which is a mandatory provision, the Government has no option but to dissolve the Panchayats, in my view, the said decision of the Development Commissioner is required to be set aside. Even otherwise, the judgment of this Court in Special Civil Application No. 6492 of 1997 is under the 1993 Act, and this court, after considering the provisions of Section 116 of the Act, has held that such provision is directory and not mandatory, and, therefore, this petition is required to be allowed by holding that not passing of budget within the stipulated time, ipso facto, would not result in dissolution of a particular Panchayats. Though it is for the Government to form appropriate opinion, as contemplated by sub-section (4) of Section 116, nonetheless no automatic dissolution of the Panchayats is contemplated by Section 116 for not passing the budget and discretion is still available with the State Government whether the Panchayats is required to be dissolved for not passing the budget within the stipulated time. That discretion is required to be exercised considering the explanation given by the Panchayats and considering the facts and circumstances of the case. The Development Commissioner, in my view, is, therefore, not right in coming to the conclusion hat the said provision is mandatory and, therefore, there is no other option but to dissolve the Panchayats."
8(iii). This Court with the above observations and discussions and taking into account the other facts and circumstances has said that there is no alternative but to remand the matter to the Development Commissioner for reconsideration of the entire matter afresh by clarifying that the Development Commissioner shall have to arrive at a fresh decision on his own.
9(i) There is substance in the submission of Mr. Raval ld. counsel appearing for the petitioner that it is most unfortunate on the part of respondent no. 2 that for the reasons best known to him, he has ignored the accepted proposition of law in this field and has created the reasons and pasted it in the order as justification to a prejudged decision. The grievance was very well available to the Development Commissioner expressed by the majority number of members whereby respondent no. 2 was informed that they were not satisfied about the working method of the Sarpanch and the members were not allowed to see the budgetary proposal which were to be passed by the Panchayat. Even they were not informed either by Administrator or by the Sarpanch that Taluka Panchayat has sent back the budgetary proposal prepared by the Administrator in the month of December, 2001. The body of the Panchayat taken over on or about 22.1.2002. Normally, the first meeting is convened to elect the Deputy Sarpanch. Even some error has been committed in circulating the budget proposal amongst the members or in sending the re-estimation to Taluka Panchayat was wrong committed by the then Sarpanch and the Secretary of the Panchayat. It is the allegation of the present petitioners that they are from the group having support from the rival political party and Mr. Raval has categorically submitted that the then Sarpanch was backed and supported by the ruling party in the State. Till the date of passing of No Confidence Motion on 13.5.2002, no show cause notice was issued by respondent no. 2 but after removal of the Sarpanch by a valid resolution passed as per the scheme of the Act and cessation of status of Sarpanch on 17.5.2002, the notice to show cause was issued for the first time which was received by the panchayat on the day on which the body of panchayat has passed the budget estimate. The act of issuing notice by the State Government is based on the scheme of sec.. 116 of the Act and the reasons assigned by respondent no. 2 in both the orders i.e. the order dated 26.6.2002 and the impugned order than as a statutory authority he could have issued such notice in the week of April, 2002. There is no justification either pleaded or placed on record as to why the first notice was not issued to Panchayat under sec. 253 of the Act till the Sarpanch was removed under No Confidence Motion in the month of May, 2002.
9 (ii) It is submitted by Mr. Raval that if the No Confidence Motion could not have been passed than the present Panchayat might not have been served with the first notice received on 22.5.2002 under sec. 253 of the Act. Lack of bona fide is apparent if the different dates pointed out by the petitioners are considered. It seems that the respondent no. 2 feeling dissatisfied with the order passed by this court while dealing with the earlier petition, has passed the impugned order in arbitrary manner and contrary to the provisions of the Gujarat Panchayats Act and to the earlier decision referred to hereinabove, rendered by this court. It is said earlier in more than one decision by this Court and the Apex Court that a order can be a reasoned order irrespective of its brevity and precision and many lengthy orders have been turned either as unreasoned or non-speaking orders. The impugned order assigns practically no convincing or cogent reasons as to why the authority is inclined to take action under sec. 253 of the Act. The explanation given by the In-charge Sarpanch only has been referred and as if the authority is accepting the recommendation of District Development Officer, the order under challenge has been passed. Undisputedly, two attempts were made for passing of budget on 27.3.2002 and 4.4.2002, but as it is on record that members were not put to the notice of budgetary proposal and majority of the members doubting the bonafide of the then Sarpanch, they had not caste their votes in favour of passing of the budget and after some deliberations and passing of orders under sec. 253 for dissolution or superceding the budgetary estimate are passed by the panchayat. The effect of passing of budgetary estimate immediately after removal of sarpanch on account of No Confidence Motion, and the fact that budgetary estimates were prepared earlier by the administrator of the panchayat and the body of the panchayat was functioning and making expenses on the approved budget till the present impugned order came to be passed could not have been ignored by the authority. This part is neither considered nor discussed while passing the impugned order.
10. To determine the functional disability or administrative incompetence of, such factors are more relevant than the conjecture or hypothetical views expressed by the authority while passing the order under challenge. The say of the panchayat ought not to have been rejected in a cursory manner especially when the State Election Commission has contemplated to hold bye-election for the post of Sarpanch and a member of ward no. 5 of the panchayat. This Court while dealing with SCA No. 366 of 2003 in the case of Sonaben Mamanbhai Juneja (A lady sarpanch of Amarpur (Kathi) village Panchayat, Tal: Mendarda, Dist. Junagadh) vs. State of Gujarat, has considered substantially the similar aspect. Of course, the said panchayat was a body elected under a scheme floated by the State of Gujarat known as "Samras Yojna", but the ratio of the said decision materially supports the present petitioners. For convenience, let the relevant part of the said decision be referred:
"9.2. .....The approach of the respondent no. 1 while recording the finding is neither logical nor legal. When the earlier petition was decided by the court, the fact of passing of Resolution by circulation and subsequent events occurred, confirming the earlier decision as to approval of budget were very well before the court. Otherwise, the issue in question i.e. supersession or dissolution of Panchayats on the ground of non passing of the budget, is clearly decided. It seems that with a view to escape from the finding recorded by this court, it is observed that the procedure followed by the Panchayats is not proper and it should be construed as serious and enough for dissolving a Panchayats.
10.1. Samras Yojna floated and recommended for adoption for village panchayats, of course, has not been placed before this Court by the respondent State Government. However, when a supersession of a Panchayat and especially the selection of Sarpanch under Samras Yojana comes before the authority, then in that eventuality, the State should act with caution and others including officers should think above all political consideration. The officer who is asked to exercise the jurisdiction under section 253 of the Act is supposed to act as quasi judicial authority and not as a representative of Government run by a party or coalition. A selected Sarpanch under Samras Yojana normally, should not be uprooted or such Panchayat normally, should not be dissolved mechanically on the ground of alleged procedural irregularity or some mistakes which can be rectified either by the superior elected body or statutory authority. Where rectification is possible or carred out, and the mistake found cannot be termed as grave, then the authority should go very slow and act with reasonable restraint in case of such Panchayat. Panchayat headed by a person falling in reserved category also be taken with similar approach.
10.2. The Samras Yojna is floated with principal idea of promoting solidarity in a small village and to avoid election expenses including otherwise. Undisputedly, the entire village elects the Sarpanch and where such Sarpanch or body works with him is to be removed from office, then the State Government, before taking such harsh action, cannot ignore the relevant provisions of the Act and the Rules framed thereunder and the decisions taken earlier by the Government and/or by this Court and the Apex Court. The interpretation of law may be the privilege of an authority exercising quasi-judicial power but when the relevant provision has been either interpreted or clarified by the High Court or Supreme court, then the subordinate judicial authority or quasi judicial functionaries should not venture in ignoring such interpretation made or finding recorded considering the relevant provision. If it is possible for a pen master who is able to put his own notions smartly in order to ignore the judicial pronouncements, even then, such official should not forget that ultimately, the law interpreted by the High Court or Supreme court prevails and shall have to prevail. Such a venture unnecessarily takes the State Government into multiplicity of proceedings, expenses and the authorities are leaving the court room either with unwarranted stigma or criticism; viz. (i) that the authority is toeing with a ruling party or (ii) he is inefficient to interpret the law placed before him or (iii) he is otherwise prejudicial personally to a particular party or (iv) he is not free to decide the issue under adjudication because of some pressure of higher ups. These all are illustrative and not exhaustive.
11. During the course of oral submissions and in response to a query raised by the court learned counsel appearing for respondents nos 1 and 2 have mentioned that the officer is free to interpret the rules as per the practice normally followed by the department and there is no element either of contemptuous behaviour or any prejudicial behaviour. It is not a matter of dispute that the decision of the Division Bench of this court in the case of Nathalal (supra) was placed before the Development Commissioner whereby it has been held that the provisions of approval of the budget estimates before 31st March are directory and not mandatory.
12.1. In the present case the budget proposal were prepared by the administrator. Not only that when the administrator was in-charge, he has acted and made expenses on the budget proposals approved by the Panchayat. The total population of the village, strength of staff members of Panchayat, payment of salary to the said staff members, payment of salary if made to such staff members including payment made to third parties, if made, are also relevant aspects which cannot be ignored by the authority. It is true that the decision in the case of Nathalal (supra) deals with the provisions of Gujarat Panchayats Act (Old). The provisions of the Act of 1961 are considered i.e. sections 12 and 126 of the Act of 1961 and the Rule 161(b) of Gujarat Taluka and District Panchayat Financial Accounts and Budget Rules 1964 and all these read together, they are almost pari materia to section 116 of the Act."
This petition can be allowed by holding that the present case is covered by the decision referred to hereinabove and the decision in SCA No. 366 of 2003.
11. In the present case also, the authority after passing the order under challenge allegedly on 27.12.2002 has not cared to intimate either to Sarpanch of the panchayat about the decision taken or any other panchayat namely the District Panchayat, Kheda or Taluka Panchayat Thasara till 22.2.2003 when duly elected Sarpanch had already taken over after publication of the result of bye-election conducted by the State Election Commission. Return filed by respondent no. 2 Development Commissioner, does not render any convincing explanation that the intimation was not sent to the Panchayat till the moment on which the Administrator was asked to take over the charge of the Panchayat. The office file tendered by Mr. Trivedi Ld. Addl. Advocate General for perusal, this Court has considered and made mental note of certain aspects which are brought to the notice of Ld. Addl. Advocate General as well as ld. counsel appearing for the parties, clearly indicates that this is not a case of mere over-writing or correction of the date in the impugned order. Circumstance logically favours the petitioners to the material extent and there is an element of back-dating in some documents in the present case also as it was noticed by this court while dealing with the SCA No. 366 of 2003. I have carefully perused the correspondence between the office of Development Commissioner and other departments including the authority publishing the Government Gazette and the circumstances emerging from the facts brought before the court and the file tendered to the court and circumstances favour the petitioners. This Court is able to set out and discuss these aspects but just to keep a judicial restraints it would be appropriate not to pass any comment qua certain elements brought to the notice of this Court by ld. counsel appearing for the parties.
12. In the back ground of these facts and in light of the decision cited and the scheme of sec. 116 and sec. 253 of the Act, it requires to be held that the authority has tried to focus only on one fact of non-passing of budget on or before 31st March or at least till the date on which the authority decided to issue notice to show cause under sec. 253 of the Act and not on the element of functional disability or administrative incompetence for want of sanctioned budget which requires to be established before superseding or dissolving a panchayat. Considering the facts of the present case, especially when attempt to get political mileage iiis made, it needs to be observed that democracy survives only when there are more than one parties popularly addressed as "opposition", and, therefore, it is not necessary to observe that when an element of disability or administrative incompetence is either pleaded or brought to the notice against a panchayat or democratically elected body than also the authority before superseding or dissolving the entire body of the panchayat etc. should positively record a reasoned finding that the disability or functional impairment or administrative incompetence is neither curable or the same has not been cured though appropriate opportunity was afforded. When a panchayat is served with a notice to show cause alleging the administrative incompetence or functional impairment than the activities of such panchayat after receipt of such notice or within reasonable period of time immediately thereafter are found on track or the panchayat has started functioning satisfactorily leaving the said impairment behind. Normally, the authority should refrain from exercising harsh powers vested under sec. 253 of the Act. Dissolution of entire body of panchayat which is a grass root levelled democratic institutions hampers the harmony amongst the village people and it also leads the State Government to unwarranted expenditure of election or bye-election.
13(i) In the present case, the petitioners of SCA No. 2138 of 2003 have rightly expressed their grievances during the course of oral submissions that the State Government, especially the respondent no. 2- Development Commissioner could have directed the concerned subordinate officers not to send requisition to Election Commission in view of the pendency of the proceedings under sec. 253 of the Act before the Development Commissioner on account of the order passed by this Court in earlier petition. The State Election Commission could have been requested even as the same is legally permissible not to declare the result when the decision allegedly taken on 27.12.2002 was already published allegedly on 6.1.2003. The State Election Commission could have been appraised with all details that when no Body is existing, conducting of bye-election or declaring results of bye-election so conducted, is not warranted. The State Government has missed in carrying out this legal obligation. No steps have been taken as if there are water-tight compartment within department or between one department and other departments of the Government.
13(ii) Ultimately, nobody disputes that bye-elections were sought by the Government along with the other elections and bye-elections which were to be conducted by the State Election Commission in the entire State of Gujarat for panchayats. The State Election Commission has appropriately conducted the bye-elections and has declared both the petitioners of SCA No. 2138/203 as successful candidates in the bye-elections conducted for Thasara Village Panchayat. One declared as elected Sarpanch and another is declared as elected member of Ward No. 5. It is rightly submitted by Mr. Raval that upholding the order allegedly passed on 27.12.2002, which was lying in the drawer of the officer, who has passed the order till it was despatched for the first time in the month of February, 2003 and received by the District Panchayat and Taluka Panchayat on 24.2.2003, if held to be a legal and valid order, passed in exercise of discretionary jurisdiction and in a correct manner shall have serious effect and duly elected both these petitioners would go home for no fault on their part. It is submitted that their contesting bye-elections validly declared elected by the State Election Commission would render fruitless. At one point of time, it is submitted that even if the SCA No. 2137 of 2003 should be granted some relief observing that they may prosecute the State Government as well as respondent no. 2- P.D. Vagehla personally for the loss and damages sustained by them for certain action and inaction brought to the notice of this court and as observed by this Court while passing the order dated 13.3.2003, the respondent no. 2 may be fastened with the liability of expenses incurred and the other cost of entire bye-election of Thasara Village Panchayat conducted by the State Election Commission between 15.1.2003 and the date of declaration of result of the said bye-election, but it is not necessary to enter into this larger question because this submissions are mainly based on hypothesis of dismissal of SCA NO. 2137 of 2003.
13(iii). It is rightly submitted that it was possible for the State Government and respondent no. 2 either to stop the process of bye-election by withdrawing the requisition so sent by the concerned Taluka Panchayat and District Panchayat to the Collector and in turn, to the State Election Commission, and at least formal declaration of the result of the bye-election could have been placed in abeyance in light of the provisions of Rule-63 of relevant Rules of the year 1994, but no such steps have been taken either by the State Government or by respondent no. 2- Development Commissioner. According to me, Taluka Panchayat has validly placed the requisition for conducting of bye-election to the Collector and till 15.1.2003 the Taluka Panchayat or District Panchayat were not aware at all about the impugned order allegedly passed on 27.12.2002 and publication thereof in Extra Ordinary Gazette allegedly published on 6.1.2003. It seems that even the State Election Commission was not sent copy till 15.1.2003 otherwise no formal notification proclaming election could have been published for the bye-election. Papers of election including each ballet casting vote cannot be permitted to thrown in a paper basket of a bureaucrate in such a contigency. So, it is not possible for this court to say that unwarranted election has been conducted and its results have been declared, on the contrary, this aspect leads me to a conclusion that this is a case where both these petitions should be allowed with a mandatory direction otherwise it may affect adversely on the grass root of the democratic values, its preservation and nourishment for which the present society is struggling.
14. Though ld. Addl. Advocate General Mr. Trivedi has placed reliance on certain decisions and indirectly submitted that as the Administrator has already taken over the charge of the panchayat, no mandatory relief should be granted, and if the petitioner is declared successful even then the same should be viewed as academic success and no substantial relief may be granted. But the cited decisions are mainly deal with the cases where the parties are praying for mandatory relief pending final hearing and disposal of the petitions restoring earlier position. In such a situationthe State Government shall have to be directed to hold fresh election. So, I am not inclined to deal with or discuss these decisions. The effect of quashing of the orders under challenge goes to the root of the publication of the notification declaring the body of Thasara Village Panchayat as superseded. If a elected body has been dissolved or superseded in an unconstitutional and arbitrary manner by passing the order with lack of bona fide, than this court in exercise of powers under Article 226 of the Constitution of India can positively, by quashing and setting aside the orders under challenge, can order revival of such body and direct the respondents to restore the democratic body as if the impugned order is nonest. The effect of passing of such order would be that petitioners of SCA No. 2138 of 2003 would be entitled to act as Members duly elected of the body of Thasara Village Panchayat in their respective capacity of Sarpanch and Members elected from Ward No. 5 respectively.
15. In view of the above discussion and circumstances narrated and as ultimate result, both these petitions succeed and they are allowed. The impugned order allegedly passed on 27.12.2002 and subsequent notification issued and the steps taken by the State Government are hereby quashed and set aside. It is hereby declared and ordered that body of Thasara Village Panchayat of Taluka Thasara, District Kheda be restored. The bye-election conducted by the State Election Commission is hereby held to be legal and valid. No other formal order is passed against any of the parties in view of the totality of facts and circumstances of the case, especially, against respondent no. 2.
16. Considering the facts and circumstances of the case and in light of the findings recorded, the court could have awarded heavy costs to the petitioner of both the petitions from the State Government and/or respondent no. 2- Development Commissioner including the costs of bye-election held by the Election Commission, but both the petitioners succeeded in view of the final out come and its resultant effect and hence this Court is not inclined to pass any formal order of costs.
17. Rule is made absolute in both these petitions with no order as to costs.
FURTHER ORDER : ( 27th JUNE, 2003)
1. Heard ld. counsel Mr. Harin Raval for the petitioner and ld. Addl. Advocate General Mr. Kamal Trivedi. Immediately on pronouncement of this CAV Common Judgment, ld. AAG Mr. Trivedi has drawn the attention of this Court these petitions, though have been treated as the same having been heard finally, but in fact the same were not heard finally and respondent State was to file reply-affidavit as the Rule issued by the Court was made returnable on 16.4.2003 vide order dated 25.3.2003. It was observed in that order that "ld. counsel for the parties are to be heard on the point as to whether mandatory relief as prayed for is required to be granted in favour of the petitioner or not. S.O. to 26.3.2003." So, according to ld. AAG Mr. Trivedi, matter was required to be dealt with on the point of grant of mandatory orders or not and not finally.
2. I have dealt with these petitions considering all the arguments at length by the ld. counsel appearing for the parties and has also referred the decisions cited by ld. AAG Mr. Trivedi whereby the interim relief of the mandatory nature was resisted.
3. Mr. Harin Raval, ld. counsel appearing for the petitioner in both these petitions has fairly accepted that these petitions have not been heard finally and submissions were made, of course, in detail qua mandatory relief prayed by the petitioners.
4. However, today, this Court has pronounced this CAV Common Judgment allowing both the petitions and granting mandatory reliefs to the petitioner as prayed for in both these petitions. A bullet is out of barrel, but the error of treating both these petitions heard finally, committed by the Court shall have to be rectified in an appropriate way so that the respondents may not be prejudiced nor the petitioner are made victim.
5. When this Court has pronounced judgment in favour of the petitioner of both these petitions after dealing with the arguments advanced by the parties at length and considering the relevant case law, the finality attached with the judgment can be revoked in effect and in substance.
6. Under the circumstances aforesaid, I am inclined to observe that CAV Common Judgment delivered today by this Court, shall not be treated as CAV Common Judgment finally disposing of both these petitions and granting mandatory reliefs and directions of similar nature, on merits, but this CAV Common Judgment shall be treated as CAV Common Order granting interim mandatory relief as prayed for by the petitioner in both these petitions pending the hearing and final disposal of both these petition. Whatever directions which are given in CAV Common Judgment should be treated as the interim directions and orders issued granting interim mandatory reliefs pending the hearing and final disposal of both these petitions. Directions accordingly.
7. Request of ld. AAG Mr. Trivedi is accepted to stay the operation and implementation of this order granting interim ad-interim reliefs granted in favour of the petitioner in both these petitions. Hence, operation and implementation of this order granting interim ad-interim reliefs granted in favour of the petitioner in both these petitions is placed under suspension for a period of 30 days from today.
8. In view of facts and circumstances aforesaid, Office is directed not to place any of these two petitions for Final Hearing before this Court and should be placed before another Bench.