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Showing contexts for: Motion Moved in Shivangiben Chetankumar Patel vs State Of Gujarat on 9 May, 2018Matching Fragments
(e). Ad interim reliefs in terms of para (d) may kindly be granted;
f. ... ... ..."
[2] The appellant herein is elected as Sarpanch of Sankheda Gram Panchayat of District Chhota Udepur, in the election held on 27.12.2016. The appellant - original petitioner was declared elected on 29.12.2016. Electorate of election was, qualified voters of village Panchayat. First meeting of the Panchayat was held on 16.1.2017, in which, UpSarpanch was elected. Election of UpSarpanch is in direct election. He is elected by the members of Panchayat and elected Sarpanch. It is the case of the appellant that second meeting was held on 24.1.2017, in which, only agenda was with regard to formation of Committees. Thereafter, on 25.01.2017, members of Panchayat, numbering 11 out of 14 members of Gram Panchayat moved no confidence motion against the appellant - Sarpanch. It is stated that Gram Sabha which was held on 26.1.2017, rejected such motion. Thereafter, the members who had moved no confidence motion, who are impleaded as party respondents in the petition, have approached competent authority for convening the meeting to discuss No Confidence Motion against the appellant - original petitioner. Pursuant to such request, notice dated 10.2.2017 was issued for convening meeting on 17.2.2017 to discuss no confidence motion against the appellant. On receipt of the notice dated 10.02.2017, on 13.02.2017, the appellant has filed Special Civil Application and by order dated 14.02.2017, learned Single Judge granted interim relief, granting stay of further proceedings pursuant to communication dated 25.01.2017. Said interim relief granted by the learned Single Judge continued during the pendency of the petition and the Special Civil Application was dismissed, finally by the learned Single Judge vide order dated 03.04.2017. On filing Letters Patent Appeal, this Court has also granted interim relief in favour of the appellant. [3] Before the learned Single Judge, mainly it was case of the appellant that impleaded respondents have moved no confidence motion against her, immediately after first meeting, without giving any reasonable time to discharge, functions as Sarpanch. It was the case of the appellant that accountability and transparency in functioning of Sarpanch can only be assessed, if the elected Sarpanch is allowed to function for some time to discharge her / his duties and obligations' as required under Section 55 of the Gujarat Panchayats Act, 1993. It was the case of the appellant that as no confidence motion was moved immediately after 1st meeting, such step on the part of the respondents is irrational, unreasonable and arbitrary and as such, violative of rights guaranteed under Article 14 of the Constitution of India. Further it was the case of the appellant that, even in absence of any restriction for moving no confidence motion after election, under Section 56 of the Panchayats Act, 1993, reasonable time is to be read into, so as to allow the elected Sarpanch to function as Sarpanch to discharge his / her duties and obligations'. It is submitted that even if the appellant is removed from the post of Sarpanch by way of no confidence motion, same is not, a disqualification to contest election, as such, it would result in dis stability and continuity of the Panchayat institution. It is alleged that unless the members of the Panchayat do not get their own person elected, similar move will be repeated, which will ultimately effect stability and continuity of the Panchayat.
Notwithstanding the traditional view that grammatical construction is the golden rule, Justice Frankfurter used words of practical widom when he observed:
There is no surer way to misread a document than to read it literally."
[21] Learned Additional Advocate General Mr. Jani, appearing for the State has mainly submitted that in absence of any prohibition for any period, after election for moving no confidence motion against Sarpanch and UpSarpanch under Section 56 of the Act, 1993, it is always open for the members of the Panchayat to move no confidence motion at any time. It is submitted that in the meeting held on 24.01.2017, there were nine subjects and thereafter, on 25.01.2017, motion of no confidence was moved by 11 out of 14 members of Panchayat. It is also submitted that appellant is elected directly by qualified voters of Panchayat with margin of 2739 votes. It is further submitted that as members of Panchayat have lost confidence on the Sarpanch, they moved motion of no confidence by way of requisition on 25.01.2017. It is also contended that if majority of members have lost confidence on the Sarpanch, the functions of Panchayat will come to grinding halt. Referring to Section 96 of the Gujarat Panchayats Act, 1993, it is contended that all questions before a meeting of a panchayat or committee thereof or of a gram sabha shall be decided by a majority of votes of the members present. It is submitted that for moving no confidence motion, no reasons be mentioned. In support of his argument, he has relied on the judgment in the case of Babubhai Muljibhai Patel v/s. Nandlal Khodidas Barod and Ors. reported in (1974) 2 SCC 706. In the aforesaid judgment, the Hon'ble Supreme Court, while dealing with provisions relating to no confidence motion under the Gujarat Municipalities Act, 1963, has held that in view of language under section 36 of the Municipalities Act, no grounds be mentioned when no confidence motion is actually passed against the President. So far as mentioning of reasons, it is fairly stated that no confidence motion not being punitive, no reasons be recorded for removal.
(ii) exercise such of the powers and perform such of the duties of the Sarpanch as the Sarpanch may, from time to time delegate to him;
(iii) in case the Sarpanch has been continuously absent from the village for more than fifteen days or is incapacitated to exercise the powers and perform the duties of the Sarpanch.
(3) In the absence of both the Sarpanch and the Upa Sarpanch, every meeting of the panchayat shall be presided over by such one of the members present as may be chosen by the meeting to be Chairman for the occasion. (4) Notwithstanding anything contained in clause (iv) of sub section (2) no money shall be withdrawn from the fund of the panchayat except with the signature of the Sarpanch and any one of the two other members of the panchayat authorised in that behalf by the panchayat." [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 UpSarpanch is elected by the members of the village panchayat. Though the Sarpanch of the village is elected by the qualified voters of the village from amongst themselves, but the power is conferred under Section 56 of the Gujarat Panchayats Act, 1993 on the elected members of the Panchayat to move motion of no confidence against the Sarpanch and UpSarpanch of the Gram Panchayat. As identical provision is upheld by the Hon'ble Supreme Court, it is not necessary for us to delve in deep to examine whether directly elected Sarpanch from the qualified voters of the Panchayat can be removed by the members of the panchayat, by way of no confidence motion. Section 56 of the Gujarat Panchayats Act, 1993 permits members of the Panchayat to move no confidence motion against the Sarpanch of the Panchayat. It is also necessary to refer to Section 57 of the Gujarat Panchayats Act, 1993, which empowers the competent authority to order removal of any member of panchayat on proved misconduct. Under section 57(2) of the Act, 1993, the competent authority is also empowered to disqualify such removed person for a period, not exceeding 5 years for election of Sarpanch or UpSarpanch of the Panchayat.
[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 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.