Brindaben Nilanjkumar Shukla vs Collector, Mahisagar District
2021 Latest Caselaw 579 Guj

           C/SCA/559/2021                                         ORDER



          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CIVIL APPLICATION NO. 559 of 2021

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         BRINDABEN NILANJKUMAR SHUKLA
                     Versus
         COLLECTOR, MAHISAGAR DISTRICT
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Appearance:
MR BM MANGUKIYA(437) for the Petitioner(s) No. 1
MS BELA A PRAJAPATI(1946) for the Petitioner(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent Nos. 1, 2
MR. K.M. ANTANI, AGP for the Respondent ­ State
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 CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                                Date : 18/01/2021

                                   ORAL ORDER

1. Heard learned advocate Ms. Bela Prajapati for the petitioner, learned advocate Mr. B.C. Dave and learned advocate Mr. Deepak Sanchela for the respective respondents and learned Assistant Government Pleader Mr. K.M. Antani for the respondent - State through video conference.

2. Learned advocate Mr. B.C. Dave states that he has instructions to appear in the matter and prays for time to file affidavit­in­reply.

3. Learned advocate Mr. Deepak Sanchela states that he has filed Civil Application on bebalf of the members of the Lunavada Nagarpalika, who moved the No Confidence Motion.

4. Learned advocate Ms. Bela Prajapati prays that ad­interim relief in terms of para­17D be granted till the matter is heard for admission.

C/SCA/559/2021 ORDER

5. Learned advocate Ms. Prajapati referred to the decision of Division Bench of this Court in case of Shivangiben Chetankumar Patel Vs. State of Gujarat & Ors., reported in 2019 (2) GLR 865, wherein this Court has held that No Confidence Motion cannot be moved within a period of one year from the date of assumption of charge by the Sarpanch of a Gram Panchayat. It was therefore, submitted that the said decision would also apply to the facts of this petition as the petitioner is sought to be removed as President of Nagarpalika within one year of assumption of charge by No Confidence Motion.

6. On the other hand learned advocate Mr. B.C. Dave and learned advocate Mr. Deepak Sanchela states that judgment of the Division Bench would not be applicable in the facts of the case because in the said case the Division Bench was considering the provisions of the Gujarat Panchayats Act, 1993, which are different than that of the provisions of the Gujarat Municipalities Act, 1963.

7. It is submitted by Mr. Dave that in the said case the Sarpanch was elected by the village people, whereas in the facts of the case, the president was elected by the members of the Nagarpalika and therefore, facts of both the cases are different and in such circumstances the judgment of the Division Bench would not be applicable. Mr. Dave would further submit that in the facts of the said case it was second no confidence motion which was not permitted by the Division Bench as the first motion was rejected by the Panchayat. Whereas in the facts of the present case, the No Confidence Motion is sought to be moved for the first time and therefore, the petitioner being President of the Nagarpalika is bound to call for the meeting as directed by the Chief Officer as per provision of Section 51 read with Section 36 of the Act, 1963.

C/SCA/559/2021 ORDER

8. Learned advocate Mr. Sanchela relied upon the decision of the Full Bench of this Court in case of Jayendrasinh Bhupatsinh Diama v. State of Gujarat & Others reported in 2012 (2) GLR 1096 and submitted that the Full Bench of this Court has held that if the interim relief is granted creating the situation of continuing in office as a Sarpanch, it would not only run counter to the statutory provisions of the cessation of office after a period of three days from the date on which the motion is carried out by the requisite majority, but it would also run counter to the democratic principles of maintenance of confidence by the Sarpanch in the Members of the Gram Panchayat.

9. Learned AGP Mr. Antani submitted that the judgment of the Division Bench is carried before the Supreme Court in Special Leave to Appeal (C) No.14892 of 2018, wherein the Hon'ble Supreme Court has issued the notice and also ordered that the pendency of the writ petition would not debar the petitioners to move another No Confidence Motion in accordance with law, if they are so advised. It was therefore, submitted that the order passed by the Division Bench is indirectly suspended by the Supreme Court permitting to move another No Confidence Motion in accordance with law. It was submitted by Mr. Antani that in the facts before the Hon'ble Division Bench the No Confidence Motion was moved immediately in the second meeting of the panchayat, whereas in the facts of this case, the petitioner has worked for almost four months as President and therefore, the No Confidence Motion moved by the members of the Nagarpalika is valid and the judgment of the Division Bench would not be applicable.

10. Having considered the above submissions for grant of ad­interim relief in the facts of this petition, it is pertinent to note that the provisions of Section 36 of the Gujarat Municipalities Act, 1963 is pari

C/SCA/559/2021 ORDER

materia with that of Section 56 of the Gujarat Panchayats Act, 1993.

Section 36 of the Gujarat Municipalities Act, 1963 reads as under :­

36. Motion of no confidence :­ (1) Any councillor of a municipality who intends to move a motion of no confidence against its president or vice­ president may give a notice thereof, in such form as may be prescribed by the State Government, to the municipality. If the notice is supported by not less than one third of the total number of the then councillors of the municipality, the motion may be moved.

(2) If the motion is carried by a majority of not less than two­thirds of the total number of then councillors of the municipality, the president or, as the case may be, the vice­president shall cease to hold office after a period of three days from the date on which the motion is carried unless he has earlier resigned; and thereupon the office held by him shall be declared to be vacant.

(3) Notwithstanding anything contained in this Act or the rules made thereunder, the president, or as the case may be, the vice­president shall not preside over a meeting in which a motion of no confidence against him is discussed; but he shall have the right to speak in or otherwise take part in the proceedings of such meeting (including the right to vote)."

Section 56 of the Gujarat Panchayats Act, 1993 reads as under :­

"56. Motion of no­confidence.­­(1) Any member who intends to move a motion of no confidence against the Sarpanch or the Upa­Sarpanch 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.

C/SCA/559/2021 ORDER

(2) Where in the case of the Sarpanch or, as the case may be, the Upa­Sarpanch, the motion is carried by a majority of not less than two­thirds of the total number of the members of the panchayat, the Sarpanch or, as the case may be, the Upa­Sarpanch, 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 Upa­Sarpanch, shall not preside over a meeting in which a motion of no confidence is discussed against him, but he shall have a right to speak or otherwise to take part in the proceedings of such a meeting (including the right to vote.)

(4) When the office 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 perform all the functions and duties of Sarpanch but he shall not have the right to vote in any meetings of the panchayat.

(5) (a) Notwithstanding anything contained in section 91 or 95 a meeting of the panchayat for dealing with a motion of no confidence under this section shall be called within a period of fifteen days from the date on which the notice of such motion is received by the panchayat;

(b) If the Sarpanch fails to call such meeting, the Secretary of the panchayat shall forthwith make a report thereof the competent authority 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."

In view of the above it would be therefore, necessary to refer to

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the ratio of the Division Bench in case of Shivangiben Chetankumar Patel (supra) with regard to reasonable time within which No Confidence Motion can be moved as under :­

"42. Then the next question which arises is, in absence of any restriction for a particular time under Sec. 56 of the Act, what should be the reasonable time, within which time, no­confidence motion cannot be permitted, so as to read into Sec. 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.

43. Under Sec. 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 Sec: 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 reasonable time, within which time, no motion could be permitted for removal of elected Sarpanch by way of no­confidence motion as contemplated under Sec. 56 of the Gujarat Panchayats Act from the date of declaration of result. Similarly, once, no­confidence motion is moved and defeated, same cannot be permitted for a period of one year from the date of such defeat.

44. So far as President of Taluka Panchayat is concerned, initially period can be of one year from the date of declaration of result, within which time, no motion can be permitted for removal of elected President of Taluka Panchayat. However, keeping in mind tenure of elected President of Taluka Panchayat

C/SCA/559/2021 ORDER

being only two and half years, once motion is defeated, same can be permitted to be moved only after six months from the date of defeat."

In view of the above dictum of law, prima facie it appears that the members of the respondent - Lunawada Nagarpalika could not have moved No Confidence Motion under Section 36 of the Act, 1963 within a period of one year from the date of assumption of charge as a President of the Nagarpalika by the petitioner.

In view of the above, prima facie case and balance of convenience is in favour of the petitioner and as such till the petition is heard for admission purpose, the impugned notice dated 2nd January, 2021 issued by the Chief Officer, Lunawada Nagarpalika is required to be kept in abeyance, so that no irreparable loss is caused to the petitioner. Therefore, by way of an ad­interim relief, the notice dated 2nd January, 2021 issued by the Chief Officer, Lunawada Nagarpalika calling upon the petitioner to convene the meeting as per Section 51 of the Act, 1963 is kept in abeyance till the next date of hearing.

Civil Application filed by the learned advocate Mr. Sanchela is also ordered to be listed along with this matter on the next date of hearing. Affidavit­in­reply to be filed on or before 27th January, 2021. Rejoinder, if any, to be filed on or before the next date of hearing.

Stand over to 2nd February, 2021.

(BHARGAV D. KARIA, J.) AMAR RATHOD...