Gujarat High Court
Rameshbhai Dahyabhai Jadav vs Ahmedabad District Panchayat on 13 December, 2023
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/24304/2022 ORDER DATED: 13/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 24304 of 2022
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RAMESHBHAI DAHYABHAI JADAV
Versus
AHMEDABAD DISTRICT PANCHAYAT
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Appearance:
MR KV SHELAT(834) for the Petitioner(s) No. 1
MR. KIRTAN H MISTRY(10012) for the Respondent(s) No. 5,6,7,8,9
MS SEJAL K MANDAVIA(436) for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2,3,4
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 13/12/2023
ORAL ORDER
1. By way of present petition, the petitioner herein has prayed for the following reliefs:
"A. The Hon'ble Court be pleased to admit and allow the present petition;
B. YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the proposal for no confidence motion against petitioner dated 01.09.2022 at Annexure C and the resolution dated 03.10.2022 of No Confidence Motion at Annexure - E, against the petitioner and the consequent communication dated 19.10.2022 at Annexure - F and further be pleased to delcare the action of the respondent authority is illegal, without jurisdiction and null and void and contrary to the provisions of section 55 and 56 of Gujarat Panchayat Act, 1993;
C. The Hon'ble Court be pleased to hold by appropriate writ, order or direction that the petitioner continue as a Sarpanch of Sarandhi Gram Panchayat, Taluka Dholka, Ahmedabad.
D. Pending the admission and final hearing of the petition, YOUR LORDSHIPS may be pleased to allow the petitioner to perform the duties as Sarpanch of Sarandhi Gram Panchayat, Taluka Dholka, Ahmedabad.
Page 1 of 13 Downloaded on : Tue Dec 19 20:34:46 IST 2023 NEUTRAL CITATION C/SCA/24304/2022 ORDER DATED: 13/12/2023 undefined E. Ad interim reliefs in terms of para(D) may kindly be granted; F. Looking to the facts and circumstances of the present case any
other and further relief/s as may be granted in the interest of justice."
2. Heard Mr. K.V. Shelat, learned advocate appearing for the petitioner, Ms. Sejal K. Mandavia, learned advocate appearing for the respondent No.1 and Mr. Kirtan H. Mistry, learned advocate appearing for the respondent Nos.5 to 9.
3. The brief facts leading to the filing of the present petition read thus:
3.1 The petitioner came to be elected as Sarpanch of Sarandhi Gram Panchayat on 21.12.2021, took charge and started performing duties since then. On 05.07.2022, some of the elected members of Sarandhi Gram Panchayat passed a no confidence motion against the petitioner, which is duly produced at Annexure - A. The said motion came to be forwarded by the Talati-cum-Mantri to the Taluka Development Officer by communication dated 27.07.2022 to which the Taluka Development Officer communicated on 10.08.2022 that the no confidence proposal/motion is not in consonance with the prescribed form and the proposal was returned. A copy of the said communications dated 27.07.2022 and 10.08.2022 Page 2 of 13 Downloaded on : Tue Dec 19 20:34:46 IST 2023 NEUTRAL CITATION C/SCA/24304/2022 ORDER DATED: 13/12/2023 undefined are duly produced at Annexure - B colly.
3.2 On 01.09.2022, out of 9 members, 7 members presented the proposal/no confidence motion against the petitioner. The petitioner's advocate also represented to the District Panchayat and Taluka Development Officer by making representation and contending that the petitioner is going to challenge the action of the Panchayat members in moving and passing no confidence motion; the same being illegal, void, non-est and without jurisdiction by preferring the writ petition before the Hon'ble High Court. A copy of the communication dated 01.09.2022 made by the 7 members is duly produced at Annexure - C. 3.3 On 03.10.2022, the petitioner wrote communication to the Taluka Development Officer, Dholka, District Ahmedabad that on the even date i.e. 03.10.2022, the resolution of no confidence came to be passed which is duly produced at Annexure - E. 3.4 On 19.10.2022, the Taluka Panchayat through Taluka Development Officer passed an order that the no confidence motion against the petitioner came to be passed on Page 3 of 13 Downloaded on : Tue Dec 19 20:34:46 IST 2023 NEUTRAL CITATION C/SCA/24304/2022 ORDER DATED: 13/12/2023 undefined 03.10.2022 and the petitioner seized to be the Sarpanch under Section 56(2) of the Gujarat Panchayat Act with effect from 07.10.2022 and the Deputy Sarpanch to exercise powers of Sarpanch till the new Sarpanch is elected. The said order dated 19.10.2022 passed by the Taluka Development Officer of Sarandhi Taluka Gram Panchayat is duly produced at Annexure
- F. 3.5 Being aggrieved by the aforesaid action undertaken by the respondents, the petitioner approached this Court by preferring the Special Civil Application No.20841 of 2022.
There being several mistakes in the said petition, the said petition came to be withdrawn on 14.10.2022 wherein, by order dated 18.11.2022, while permitting the petition to be withdrawn, liberty was reserved in favour of the petitioner to file appropriate proceeding after proper correction ebfore the Hon'ble Court or before appropriate forum. A copy of the order dated 14.10.2022 and 18.11.2022 are duly produced at Annexure - G colly.
3.6 In light of the aforesaid set of facts, the petitioner approached this Court for the prayers, as referred above.
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4. Mr. K.V. Shelat, learned advocate appearing for the petitioner, at the outset submitted that the petitioner herein came to be elected as Sarpanch of the Sarandhi Gram Panchayat on 21.12.2021. The resolution of no confidence motion came to be passed against the petitioner herein on 03.10.2022. It was submitted that the aforesaid action undertaken with respect to no confidence motion against the petitioner herein was within a period of one year from the date on which the petitioner came to be elected as Sarpanch of Sarandhi Gram Panchayat on 21.12.2021.
4.1 Reliance was placed on the ratio as laid down by the Hon'ble Division Bench in case of Shivangiben Chetankumar Patel vs. State of Gujarat reported in [2018] 2 GLH 253, [2019] 2GLR 865 wherein, the Hon'ble Division Bench had considered Section 56 of the Act and read into the provisions of Section 66 and proceeded to hold that once no confidence motion is moved and defeated, the same cannot be permitted for a period of one year from the date of such defeat. 4.2 Mr. Shelat, learned advocate, also submitted that the decision in case of Shivangiben Chetankumar Patel (Supra), is subject matter of challenge before the Hon'ble Apex Court Page 5 of 13 Downloaded on : Tue Dec 19 20:34:46 IST 2023 NEUTRAL CITATION C/SCA/24304/2022 ORDER DATED: 13/12/2023 undefined however, no stay is granted by the Hon'ble Apex Court and the petitioner in the said petition is permitted to contest the election of Sarpanch. Placing reliance on the aforesaid, it was submitted that the aforesaid decision by the Hon'ble Division Bench in case of Shivangiben Chetankumar Patel (Supra) reigns the field and therefore, the said decision squarely applies to the facts of the present case wherein, the no confidence motion is moved against the petitioner herein within a period of one year and in view thereof, the action undertaken against the petitioner with respect to passing of no confidence motion is required to be quashed and set aside. 4.3 Reliance is also placed on the ratio as laid down in [2022] 4 GLR 2957 in case of Narenbhai Gunvantlal Jayaswal vs. State of Gujarat & Ors. wherein, an identical issue with respect to the Municipalities Act and placing reliance on the ratio laid down by the Hon'ble Division Bench, the Court opined to consider appropriate period of one year as a reasonable time within which no motion can be permitted for removal of the elected President by way of no confidence motion as contemplated under Section 36 of the Act, 1963 from the date of declaration of the result.
Page 6 of 13 Downloaded on : Tue Dec 19 20:34:46 IST 2023 NEUTRAL CITATION C/SCA/24304/2022 ORDER DATED: 13/12/2023 undefined 4.4 Placing reliance on the aforesaid, it was submitted that
the prayers as prayed for in the present petition be allowed.
5. Ms. Sejal K. Mandavia, learned advocate appearing for the respondent No.1, supported the contentions raised by Mr. Shelat, learned advocate appearing for the petitioner and fairly submitted that the ratio as laid down by the Hon'ble Division Bench in case of Shivangiben Chetankumar Patel (Supra) reigns the field.
6. Mr. Upadhyay, learned advocate appearing for the respondent Nos.5 to 9, while the ratio laid down in Shivangiben Chetankumar Patel (Supra) reigns the field, candidly submitted that no confidence motion was passed within a period of one year. Reliance was placed on the decision of the Hon'ble Division Bench in Letters Patent Appeal No.658 of 2022 in Special Civil Application No.5606 of 2022 wherein, the Hon'ble Division Bench has directed the Registry to place the matter before the Larger Bench.
7. Considering the submissions advanced by the learned advocates appearing for the respective parties, following undisputed facts emerge:
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(a) The petitioner came to be elected as Sarpanch of Sarandhi Gram Panchayat on 21.12.2021.
(b) On 05.07.2022, the elected members of Sarandhi Gram Panchayat moved a motion of no confidence. The same being not in consonance with the prescribed form was sent back by the Taluka Development Officer by a communication dated 10.08.2022.
(c) On 01.09.2022, out of 9 members 7 members presented the proposal of no confidence motion against the petitioner.
(d) On 03.10.2022, the resolution of no confidence came to be passed duly produced at Annexure - E.
(e) On 19.10.2022, the Taluka Panchayat through the TDO passed an order that no confidence motion against the petitioner came to be passed on 03.10.2022 and the petitioner seized to be the Sarpanch under section 56(2) of the Act with effect from 07.10.2022 and powers came to be relegated to the Deputy Sarpanch till the election of Sarpanch.
8. From the aforesaid, it emerges that the no confidence motion came to be passed against the petitioner herein within Page 8 of 13 Downloaded on : Tue Dec 19 20:34:46 IST 2023 NEUTRAL CITATION C/SCA/24304/2022 ORDER DATED: 13/12/2023 undefined a period of one year i.e. on 03.10.2022 and the petitioner was elected as Sarpanch of Sarandhi Gram Panchayat on 21.12.2021. The ratio as laid down by the Hon'ble Division Bench in Shivangiben Chetankumar Patel (Supra) reigns the field wherein, since the reasonable period was not prescribed in Section 56 of the Act, the Hon'ble Division Bench read into the said provision and held that the reasonable time of one year should be considered as reasonable time, within which time, no motion could be permitted for removal of elected Sarpanch by way of no confidence motion as contemplated under section 56 of the Gujarat Panchayats Act from the date of declaration of result. Once, no confidence motion is moved and defeated, same cannot be permitted for a period of one year from the date of such defeat. It is apposite to refer to the ratio as laid down in case of Shivangiben Chetankumar Patel vs. State of Gujarat reported in [2018] 2 GLH 253, [2019] 2GLR 865, wherein paragraphs 43 and 46 read thus:
"43. Under section 13 of the Gujarat Panchayats Act, 1993, every panchayat, unless sooner dissolved under this Act shall continue for five years from the date appointed for its first meeting and no longer. Keeping such provisions in mind, and executive functions entrusted to the elected Sarpanch under Section 55 of the Panchayat Act, and object of the 73rd Constitutional Amendment Act, 1992 i.e. continuity and stability of Panchayati Raj institutions, we deem it appropriate that reasonable time of one year should be considered as Page 9 of 13 Downloaded on : Tue Dec 19 20:34:46 IST 2023 NEUTRAL CITATION C/SCA/24304/2022 ORDER DATED: 13/12/2023 undefined reasonable time, within which time, no motion could be permitted for removal of elected Sarpanch by way of no confidence motion as contemplated under section 56 of the Gujarat Panchayats Act from the date of declaration of result. Similarly, once, no confidence motion is moved and defeated, same cannot be permitted for a period of one year from the date of such defeat.
46. For the aforesaid reasons, the Letters Patent Appeal No.543 of 2017 is allowed. The order dated 03.04.2017 passed by the learned Single Judge in Special Civil Application No.2508 of 2017 is quashed and set aside. Consequently, the communication dated 10.02.2017 and further communication dated 04.04.2017 are quashed and set aside. Consequently, the meeting held on 06.04.2017 to the extent of considering no confidence motion against the appellant also stands quashed. No order as to costs. The Civil Applications also stand disposed of."
9. It is also apposite to refer to the ratio as laid down in case of Narenbhai Gunvantlal Jayaswal vs. State of Gujarat & Ors. reported in [2022] 4 GLR 2957, wherein, paragraphs 19, 20 and 21 read thus:
"19. The Apex Court, while referring to the provisions of no confidence motion in local self-government, had observed that there is no uniformity with regard to the procedure and process regarding the motion of no confidence. The Apex Court had also referred to the Panchayats Act as well as Municipalities Act. Having considered the provisions to be not in conformity, directed that in the case of Co-operative 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 and in case, the motion of no confidence is once defeated, a fresh motion shall not be introduced within another one year. Considering the similar principle governing the amendment pertaining to local self Government, namely, Panchayats and Municipalities, the Apex Court in the case of Vipulbhai M. Chaudhary (supra), has read the power to bring motion of no confidence as well as restriction to bring it within a reasonable period. After enunciation of law by the Apex Court in the case of Vipulbhai M. Chaudhary (supra), this Court, while deciding the issue relating to Section 56 of the Act of 1993 in the case of Shivangiben Chetankumar Patel (supra), extensively referred to the judgment in the case of Vipulbhai M. Chaudhary (supra).
20. While adverting to the observations made by the Division Bench in the context of Section 56 of the Act of 1993, it is required to be noted that the Division Bench has held and observed that 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 in the contextual meaning, under which, it is used. It has been held that Page 10 of 13 Downloaded on : Tue Dec 19 20:34:46 IST 2023 NEUTRAL CITATION C/SCA/24304/2022 ORDER DATED: 13/12/2023 undefined reasonable time is any time which is not manifestly unreasonable under the circumstances. Therefore, the Division Bench considering the object of the 73 rd Constitution Amendment Act, 1992 that is continuity and stability of Panchayati Raj Institutions considered one year as a reasonable time, within which time, no motion could be permitted for removal of the elected Sarpanch by way of no confidence motion as contemplated. Therefore, so far as the nature and character of the local self-governments being the same, the principles laid down in the two judgments, namely, Vipulbhai M. Chaudhary (supra) and Shivangiben Chetankumar Patel (supra), as regards the reasonable time within which the motion of no confidence could be permitted for removal of the elected representative from the date of declaration of result, apply on all fours to the provisions of Section 36 of the Act of 1963.
21. Considering the similar basic democratic principles, governing both the institutions enjoying same Constitutional status, this Court is of the opinion that it would be appropriate to consider one year as a reasonable time, within which time, no motion can be permitted for removal of the elected president by way of no confidence motion as contemplated under Section 36 of the Act of 1963 from the date of declaration of result. In the present case, the petitioner was appointed as a President of the Municipality on 24.08.2020 for a period of two and half years and within a span of six months, the other members of the Nagarpalika forwarded a requisition for moving the motion of no confidence against the petitioner.
Hence, in view of the discussion in the preceding paragraphs; the provisions of the Act of 1963 as well as the law on issue and applicable principle, the requisition dated 18.01.2021 challenged in the captioned writ petition deserves to be quashed and set aside and is hereby quashed and set aside."
10. This Court also deem it fit to refer to the order passed by the Hon'ble Division Bench in Letters Patent Appeal No.658 of 2022 in Special Civil Application No.5606 of 2022 wherein the Hon'ble Division Bench has referred the issue to the Larger Bench. It is apposite to refer to paragraph 10 of the said order, which read thus:
"10. Hence, we are of the considered view that the judgment of Coordinate Bench in Shivangiben Chetankumar Patel Vs. State of Gujarat & Ors. disposed of on 09.05.2018 reported in 2018 (2) GLH 523 would be contrary to settled principles of law and as such the said judgment having been rendered by the Coordinate Bench, we are of the considered view this requires consideration by a Larger Bench. Hence, we direct this issue to be resolved by Larger Bench, particularly when this order of Division Bench having not been stayed by the Hon'ble Apex Court in Petition(s) Page 11 of 13 Downloaded on : Tue Dec 19 20:34:46 IST 2023 NEUTRAL CITATION C/SCA/24304/2022 ORDER DATED: 13/12/2023 undefined though Special Leave to Appeal (C) No(s). 14892 of 2018 is pending before the Hon'ble Apex Court, whereunder liberty has been given to the Councillors of Amod Municipality to move a fresh No Confidence Motion."
11. Considering the aforesaid, it is apposite to refer to the ratio as laid down by the Hon'ble Apex Court in Special Leave Petition (Civil) No.20054 of 2023 in case of Rajnish Kumar Rai vs. Union of India & Ors. wherein, the Hon'ble Apex Court in paragraph 4 of the said decision held that judicial propriety does not permit ignoring the ratio laid down in earlier judgment as there is no judgment/decision regarding the same which has come out from the larger Bench. Paragraph 4 of the said decision read thus:
"4. Learned counsel appearing for the petitioner has brought to our notice a coordinate Bench decision of this Court in the case of Union of India vs. Sanjiv Chaturvedi [(2023) 2 SCR 59] in which the point of law laid down in the earlier judgment passed by this Court in the case of Alapan Bandyopadhyay (supra) has been referred to a larger Bench. But so far as this Bench is concerned, we do not think judicial propriety permits ignoring the ratio laid down by the coordinate Bench in the case of Alapan Bandyopadhyay (supra) as no decision has come as yet from the larger Bench on the point of territorial jurisdiction of the High Court in a similar context. If we were to take a different view, the only course open for us would have been to refer the petition to the Hon'ble the Chief Justice for being adjudicated by a larger Bench, as has been done in the case of Sanjiv Chaturvedi (supra). No argument has been raised before us that the decision in the case of Alapan Bandyopadhyay (supra) is per incurium."
12. In light of the aforesaid, in the facts of the present case and the ratio as discussed above, the contentions raised by Mr. Shelat, learned advocate appearing for the petitioner, require consideration. For the forgoing reasons, by exercising extra-
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ordinary jurisdiction under Article 226 of the Constitution of India, the petition stands allowed. Liberty is reserved in favour of the respondents to take appropriate action in accordance with law.
(VAIBHAVI D. NANAVATI,J) NEHA Page 13 of 13 Downloaded on : Tue Dec 19 20:34:46 IST 2023