Rameshbhai Najabhai Makwana vs State Of Gujarat
2021 Latest Caselaw 3829 Guj

      C/SCA/12872/2020                                        CAV JUDGMENT



          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/SPECIAL CIVIL APPLICATION NO. 12872 of 2020


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE BHARGAV D. KARIA

======================================

1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy of the
     judgment ?

4    Whether this case involves a substantial question of law as to

the interpretation of the Constitution of India or any order made thereunder ?

====================================== RAMESHBHAI NAJABHAI MAKWANA Versus STATE OF GUJARAT ====================================== Appearance:

MS JIGNASA B TRIVEDI(3090) for the Petitioner(s) No. 1 for the Respondent(s) No. 10,11,12,13,14,15,4,5,6,7,8,9 MR. ISHAN JOSHI, AGP (1) for the Respondent(s) No. 1 MR HS MUNSHAW(495) for the Respondent(s) No. 2,3 ======================================

CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA

Date : 05/03/2021

CAV JUDGMENT

1. Heard learned advocate Mr. Brijesh Trivedi for the petitioner, learned advocate Mr. H.S. Munshaw for the respondent nos. 2 and

3, and learned Assistant Government Pleader Mr. Ishan Joshi, for the respondent - State through video conference.

2. By this petition under Article 227 of the Constitution of India, the petitioner has prayed for the following reliefs :

"(a) to allow this petition with costs and to issue a writ of mandamus or any other writ, direction or order, enjoining upon the respondents Nos.1 to 3, that the removal of the petitioner as Sarpanch is illegal and that he continues as Sarpanch of Talati­cum­Mantri, Valukad/Juna Padar Juth Gram Panchayat, also known as Valukad Juth Gram Panchayat, Taluka Ghogha, District Bhavnagar;

(b) to kindly interim relief to the effect that the petitioner continues as Sarpanch of Talati­cum­ Mantri, Valukad/Juna Padar Gram Panchayat, also, known as Valukad Juth Gram Panchayat, Taluka Ghogha, District Bhavnagar, until the final disposal of the present petition, pending admission and the final disposal of this petition;

(c) to grant such further and other reliefs, as may be deemed to be just and proper."

3. The facts of the case are that the petitioner is an elected

Sarpanch of Village Valukad Juth Gram Panchayat in the election held in the year 2017 'No Confidence Motion' was moved against the petitioner under Section 56 of the Gujarat Panchayats Act, 1993 (for short "the Act, 1993") by 8 members of the Panchayat on 24th July, 2020.

3.1 The meeting of the panchayat was held on 10th August, 2020 in which out of 13 elected members i.e. 12 members and the petitioner remained present and 9 members voted in favour of the 'No Confidence Motion' and therefore, the petitioner was removed from the post of Sarpanch as per Section 56 of the Act, 1993.

3.2 The petitioner approached this Court by filing Special Civil Application no.10331 of 2020. However, the petition was withdrawn with a liberty to file alternative remedy by filing appropriate proceedings challenging the resolution passed by the Panchayat.

3.3 The petitioner thereafter, preferred applications dated 3rd September, 2020 and 21st September, 2020 before the District Panchayat. However, such applications were not entertained by the District Panchayat as no proceedings would lie before it under Section 249 of the Act, 1993 for suspension of the No Confidence Motion in view of the decision in case of Gitaben Rathva Vs. State of Gujarat in Special Civil Application no.10079 of 2009. The petitioner, therefore, challenged the order for removal from the post of Sarpanch before this Court by preferring this petition.

4. This Court (Coram : Hon'ble Mr. Justice Ashutosh J. Shastri), passed the following order on 21st October, 2020 :

"1. Heard Mr.Brijesh Trivedi, learned advocate for the petitioner.

2. According to Mr.Brijesh Trivedi, learned advocate for the petitioner, the order passed by respondent No.2 is not only unjust and arbitrary but, suffers from the vice of non­application of mind. It has been submitted that though pursuant to the order passed by this Court dated 31.8.2020 reflecting on page­ 31 of petition compilation, a substantive appeal has been filed on 2.9.2020 along with Civil Application for seeking interim relief, however, without examining the contentions raised in the appeal as well as interim relief application, a cryptic order is passed without assigning any cogent reason. According to Mr.Brijesh Trivedi, learned advocate, the resolution which has been passed with respect to no confidence motion is absolutely politically motivated and only with a view to see that the grievance voiced out by the petitioner against the misdeeds of some of the members, the petitioner is made victim of it. It has been submitted that though apparently, the resolution is passed by 2/3rd majority but, the same is also passed in an irregular manner and that is the reason why the petitioner is demanding the videography clip so as to make effective representation.

2.1 Mr.Brijesh Trivedi, learned advocate, has further submitted that this move has taken place only with a view to see that a reserved class candidate may not remain in power, meaning thereby cannot hold the post of Sarpanch and

after passing no confidence motion, the charge has been handed over to respondent No.4, who happened to be the Deputy Sarpanch not belonging to the said category to which the petitioner is belonging and, therefore, handing over of charge is also quite contrary to the object for which the reservation concept is introduced.

2.2 Mr.Brijesh Trivedi, learned advocate, has further submitted that a substantive appeal is filed on 3.9.2020 and a separate application dated 21.9.2020 is also submitted for seeking interim relief and demanding hearing. But if the contentions which have been raised in the appeal as well as stay application if to be looked into, the present order under challenge at Annexure­A clearly reflects non­application of mind. Further, the decisions which have been relied upon are not applicable in the peculiar background of present facts and, therefore also, the order in question deserves to be corrected. Learned advocate has further submitted that though there is a specific application given for extending an opportunity of hearing while seeking interim relief on 21.9.2020, still, the authority has chosen not to extend such opportunity. This would certainly a case of flagrant violation of principles of natural justice and as such, on this ground alone, the impugned order is not sustainable in eye of law. Learned advocate is seriously apprehending that by adopting such mode of No Confidence Motion, the person incharge would mishandle the funds of the Panchayat and, therefore, has requested to stay the operation and implementation of the order, so that the funds of the Panchayat be utilized for development purpose in real sense and as such, at this stage, Mr.Trivedi, learned advocate, has requested to mould the relief and restrain the respondent No.4, who is now in­ charge in place of the petitioner, not to spend any

amount except routine day­to­day expenditure. Hence, learned advocate has requested to grant the interim relief.

3. As against this, Mr.H.S.Munshaw, learned advocate, who received telephonic instructions to appear on behalf of respondent No.2 - District Development Officer, who passed an order, has contended that no interim relief be granted at this stage, in view of the fact that charge has already been taken over on 14.8.2020 and the affairs of the Panchayat is being run smoothly and, therefore, granting of any relief would tantamount to grant of substantive relief at this stage, without proper adjudication and apart from that, learned advocate has submitted that there is a mandate of Section 56 of the Act to hand over the charge to Upsarpanch and as such, the grievance raised by the petitioner is ill­ founded. Additionally, it has been submitted that so far as the grievance which has been raised that a person, who does not belong to reserved category, is holding the charge of Sarpanch which is frustrating the very object of reservation. For that purpose, learned advocate has submitted that it can be looked after by State Election Commission by taking appropriate step. But the Statute is requiring to hand over the charge to the Upsarpanch in the eventuality of No Confidence Motion against the Sarpanch. In that view of the matter, learned advocate has requested not to grant interim relief and has also prayed that to meet with the petition, he needs some time to submit affidavit in reply.

4. Having heard the learned advocates appearing for the respective parties and having gone through the contents of the petition, it appears that the question of interim relief at this

stage would be an issue before the Court raised by the learned advocate. Prima facie, as per the assertion of the petitioner and in view of the submissions that no opportunity is given while passing the impugned order appears to be somewhat justified as the order does not reflect any such indication. Additionally, according to Mr.Brijesh Trivedi, learned advocate for the petitioner, all the contentions which have been raised are not dealt with, the same also self­ explanatory from the order in question and as such, the Court is inclined to issue notice only upon respondent No.2 at this stage.

5. So far as the interim relief issued is concerned, this Court is not inclined to consider the request for the reason that prior to the impugned order passed by respondent No.2, the charge is already taken over by Upsarpanch way back on 14.8.2020 and as such, granting of any relief at this stage as prayed for, would tantamount to granting of mandatory relief which cannot be granted unless exceptional circumstances which are visible from the record. Additionally, it appears from the record that the resolution which has been passed of No Confidence Motion bearing Resolution No.321 reflecting on page­28 of petition compilation is also indicating that a minimum requirement which is to be observed to a person against whom No Confidence Motion is moved, is also extended to the petitioner. The petitioner had been granted an opportunity to represent which the petitioner did during the said meeting and the voting has taken place only after extending opportunity to the petitioner and then, the resolution has been passed. The petitioner undisputedly has participated in the meeting which is reflecting from page­29, has represented against motion being moved in the meeting and as such,

adequate opportunity has already been granted which is the minimum requirement to be observed.

Hence, prima facie, in such a situation, in the absence of any exceptional circumstance, it is not justified to grant any substantive relief to the petitioner. The Court is persuaded to issue notice only on the aspect of non­granting of opportunity of hearing by respondent No.2, who passed an order and thereto, when the same was specifically demanded as has been pointed out.

6. Additionally, it appears from the averments made in Para.1.5 of the petition that charge is not handed over but, in reality, it is long back taken over. So, on the basis of such averments also, the Court is not inclined to grant any equitable relief at this stage.

7. In view of the above, Notice upon respondent No.2 only, returnable on 28.10.2020.

8. The interim relief, in view of aforesaid circumstance, is refused."

5. Thereafter, the matter was argued by learned advocate Mr. Trivedi and following order dated 27th November, 2020 was passed by this Court (Coram : Hon'ble Mr. Justice Ashutosh J. Shastri):

"1. Pursuant to hearing, which took place on 4.11.2020, learned advocate Mr. B.J. Trivedi for the petitioner has vehemently submitted that No Confidence Motion has been moved against the petitioner only with a view to see that a reserved

candidate may not be allowed to function as Sarpanch. According to Mr. Trivedi, large number of benevolent work had been undertaken by the petitioner in the interest of the village people and no cause or grievance has ever arisen with regard to functioning of the petitioner, on the contrary with a view to see that the administration may be undertaken in a smooth and transparent manner, one Parbatbhai Shivabhai was asked to deposit the amount which he collected and so much so that the petitioner was constrained to lodge a complaint on 7.8.2020. Even prior thereto, with regard to erstwhile irregularities, the petitioner brought the said irregularities to the notice of the authorities and keeping this circumstance in mind, at the instance of the respondent No.12, No Confidence Motion process was set in motion. According to Mr. Trivedi, this is just with a view to see that a person belonging to reserved class community may not remain in power and same can be exercised by unreserved candidate and as a part of such connivance, No Confidence Motion process was carried against the petitioner.

2. Learned advocate Mr. Trivedi has further submitted that for the purpose of carrying out said No Confidence Motion, no proper process has been undertaken, no proper opportunity has been provided to the petitioner and recording of minutes is nothing but an eyewash, quite contrary to the ground reality and therefore, the petitioner demanded videography of the process of the meeting, so as to apprise the authorities that the petitioner has been victimized. It has further been submitted that if this removal of the petitioner from the post of Sarpanch is allowed, same would not only frustrate the very concept of reservation, as conferred and stipulated in the Statute itself, but evil design to remove a person

who belongs to reserved class community will be encouraged. According to Mr.Trivedi, this is nothing but a systematic design against the petitioner and to usurp the power from the reserved candidate to be entrusted to a person who is not belonging to reserved class community. This handing over of charge to Up­ Sarpanch, who is undisputedly, not belonging to reserved class community, is now retaining the power and even till date, according to Mr. Trivedi, no steps have been taken to fill in the post vice the petitioner by electing a person from amongst the reserved category and the term is left to be over, which is undisputedly categorized for a reserved candidate. This non­taking of step is reflecting a clear design to usurp the power from a reserved candidate and retain the same by a person not belonging to such class. This is not permissible in law and if allowed, same would frustrate the very object of the provisions. For the purpose of strengthening the submission, Mr.Trivedi has brought to the notice of this Court few of the documents in the form of grievance raised by the petitioner prior to the meeting which took place on 10.8.2020. As a result of this, this move against the petitioner may not be allowed to be operated any further. Mr. Trivedi has further drawn the attention of this Court to certain relevant provisions of the Gujarat Panchayat Act and the Rules framed thereunder, pointing out the specific provisions related to reservation concept and further provisions related to the meeting to be conducted for No Confidence Motion. Mr. Trivedi has further pointed out that the specific demand has been raised to furnish videography of the meeting so as to enable the petitioner to make proper representation either before the appropriate authority or before this Court. But, evasive stand has been taken even in the affidavit of the District Development Officer

to the effect that the videography is very much available in the office of the Gram Panchayat. So, a grievance is voiced out that unceremoniously, quite contrary to the object of the statute, the petitioner has been removed. Along with this submission, multiple contentions have been raised.

3. In view of the above, it is directed that the respondent Nos.1 and 2 may verify the fact and submit proper reply before this Court to deal with the contentions and also to point out to the Court as to what steps have been taken after removal of the petitioner on the basis of No Confidence Motion and for that purpose, time is granted to the respondent authorities to submit reply with proper material within a period of 10 DAYS from today, failing which, the Court will be constrained to issue appropriate directions.

Stand over to 12th December 2020."

6. It appears that the respondent nos.2 and 3 - District Development Officer have filed the reply after grant of sufficient time by this Court. However, respondent no.2 did not file the affidavit in terms of the order dated 27th November, 2020 and therefore, this Court on 11th December, 2020 passed the following order :

"When the matter is taken up for hearing, Mr. H.S. Munshaw, learned advocate for respondent nos. 2 and 3 has submitted that through inadvertence instead of filing affidavit of respondent no. 2 pursuant to the order dated 27.11.2020, the Taluka Development Officer -

respondent no. 3 has submitted affidavit and as such, has earnestly requested to permit respondent no. 2 to file a specific affidavit as directed in an order stated above.

Further, learned advocate Mr. Munshaw has tendered apology that there was some misunderstanding which took place, which has resulted into non filing of the affidavit of respondent no. 2 and hence has requested for some time, to which, learned advocate Mr. B.J. Trivedi appearing for the petitioner has objected, but the Court in the aforesaid circumstance is granting one last opportunity to submit such affidavit. List the matter on 18.12.2020."

7. Learned advocate Mr. Trivedi appearing for the petitioner submitted that the post of Sarpanch of Village Valukad Juth Gram Panchayat is reserved for a candidate from Scheduled Caste and Scheduled Tribe and therefore, no other person can function as Sarpanch even on temporary basis or as stop­gap arrangement till the Sarpanch is elected from the Scheduled Caste and Scheduled Tribe category. It was submitted that assuming for a while that the petitioner is rightly removed as Sarpanch under Section 56 of the Act, 1993 handing over the charge to Upsarpanch who does not belong to the Scheduled Caste and Scheduled Tribe category, the respondents have failed to abide by the provisions of the Constitution of India, whereby it is provided that once the Sarpanch is elected from the Scheduled Caste and Scheduled Tribe category, no other person can be elected or given charge, who is not of the Scheduled Caste and Scheduled Tribe category, more particularly, when the other elected member belonging to said

category is available. It was pointed­out that one Danabhai Khodabhai Parmar is an elected member of the Panchayat belonging to the Scheduled Caste and Scheduled Tribe category, therefore, the respondent authority could not have handed over the charge of Sarpanch to Upsarpanch and it ought to have handed over the charge of Sarpanch to Danabhai Danabhai Khodabhai Parmar.

8. Learned advocate Mr. Trivedi further submitted that in spite of the order passed by this Court on 27th November, 2020, the respondent no.1 failed to file any reply and the reply filed on behalf of the respondent no.2 is vague and without verification of the videography, which is made at the time of holding of the meeting of 'No Confidence Motion' by the Gram Panchayat on 10th August, 2020. Learned advocate Mr. Trivedi pointed­out that on seeing the videography of the meeting held on 10th August, 2020, it is clear that the person, who had given an application for 'No Confidence Motion' along with the other members of the Panchayat has acted contrary to the procedure and has influenced the other members of the Panchayat to vote in favour of the 'No Confidence Motion'. Learned advocate Mr. Trivedi also pointed­out from the videography of the meeting held on 10th August, 2020 that the meeting was not held in presence of the representatives of the District Development Officer as required under the Act, 1993. It was pointed­out by learned advocate Mr. Trivedi that on seeing the videography, it is evident that the meeting was held not in a democratic way but in an autocratic way under the leadership of the respondent no.12 Shri Raghavbhai Ukabhai Ghameliya.

9. Learned advocate Mr. Trivedi, therefore, pointed­out that though the 'No Confidence Motion' is passed by majority but infact, there was no majority but it was under influence of the respondent no.12 that 9 persons voted in favour of the No Confidence Motion out of the 13 members.

10. Learned advocate Mr. Trivedi, therefore, submitted that the resolution passed by the Panchayat for 'No Confidence Motion' against the petitioner is liable to be quashed and set aside.

11. In the alternative, learned advocate Mr. Trivedi submitted that the State Government has not declared the date of the election for the post of Sarpanch though the petitioner is removed since August, 2020. It was submitted that though the learned AGP was granted time by this Court to take instructions with regard to the schedule of election for the post of Sarpanch vide order dated 2nd February, 2021, no instruction or information is provided by the learned AGP.

12. On the other hand, learned advocate Mr. Munshaw appearing for the respondent nos.2 and 3 submitted that the petition is not maintainable under Article 227 of the Constitution of India and further prayed that same is liable to be dismissed in view of the averments made in the affidavit­in­reply, which reads as under :­

"1. The respondent no.2 most respectfully craves leave to deny the averments and allegations made by the petitioner while praying to quash and set aside the action of his removal from the post of Sarpanch of Valukad/

Juna Padar Group Gram Panchayat and allow him to continue as Sarpanch of the Gram Panchayat also known as Valukad Group Gram Panchayat, Taluka Ghogha, District Bhavnagar. The respondent no.2 submits that the petitioner herein is not entitled to any relief in view of the facts narrated hereinafter.

2. The respondent no.2 most respectfully submits that the elected body of Valukad Gram Panchayat consists of Sarpanch and 12 members and the last general election of the Gram Panchayat was held by State Election Commission in the month of April, 2017 and thereafter the first meeting of the Gram Panchayat was held on 27.4.2017. It is stated that the petitioner was elected as Sarpanch of the Gram Panchayat in the said General Election.

The record of Ghogha Taluka Panchayat reveals that a no confidence motion was moved by in all 8 members of the Gram Panchayat on 24.7.2020 and the same was addressed to the Sarpanch/Talati­cum­Mantri of the Gram Panchayat and a copy thereof is marked to Ghogha Taluka Panchayat, as well as, District Development Officer, Bhavnagar District Panchayat. The respondent no.2 most respectfully submits that the Talati­ cum­Mantri placed the same before the Sarpanch on 28.7.20 and thereafter addressed a letter dated 31.7.20 to the Sarpanch requesting to call a Special General meeting of the Gram Panchayat for consideration of no confidence motion as per the provisions of Section­56 of Gujarat Panchayat Act, 1993.

The respondent no.2 most respectfully submits that the petitioner as a Sarpanch of Gram Panchayat issued agenda on 4.8.20 and called a meeting on 10.8.20 for consideration of no confidence motion moved against him.

3. The respondent no.2 most respectfully submits that the Upsarpanch of the Gram Panchayat presided over the meeting. It is stated that as informed the same was videographed and the petitioner as Sarpanch of the Gram Panchayat addressed the members during meeting for a while and thereafter the no confidence motion was put to vote and in all nine members supported the same while petitioner and other three members voted against it and a copy of the minutes of the meeting indicating that the petitioner had addressed the members of Gram Panchayat during the meeting as Annexure­A. The respondent no.2 is informed that a compact disk of videography is available with the Gram Panchayat.

The respondent no.2 most respectfully submits that thereafter the Talati­cum­Mantri of the Gram Panchayat addressed a letter dated 10.8.20 to the respondent no.2 informing about the meeting and also forwarded a copy of the minutes of the meeting. It is stated that on 13.8.20 instructions were issued in writing by the respondent no.3 to Talati­cum­Mantri for handing over the charge of the post of Sarpanch to Upsarpanch of the Gram Panchayat as provided under the provisions of Section 56 of the Act and a copy of the letter is annexed as Annexure­B. It is submitted that accordingly charge was handed over to Upsarpanch on 14.8.20. It is submitted that thereafter meeting of the Gram Panchayat was held on 25.9.20 by Mrs. Chhayaben P. Rao as Sarpanch of the Gram Panchayat and a copy of the agenda dated 18.9.20 is annexed as Annexure­C. The respondent no.2 most respectfully submits that subsequently the petitioner herein preferred Special Civil Application before the Hon'ble High Court of Gujarat by way of filing Special Civil Application no.10331/20 and the same was disposed of on 31.8.20 and later on petitioner moved an application before the District Development Officer, Bhavnagar District Panchayat challenging the said proceedings. The respondent no.2 most respectfully submits that the Govt. of Gujarat through its Panchayat, Rural Housing and Rural

Development Dept. has issued circular dated 11.12.09 laying down that considering the judgment of the Hon'ble High Court of Gujarat delivered in Special Civil Application no.4565/03 and Special Civil Application no.1079/09 no revisional application is maintainable under Section 259 of Gujarat Panchayat Act, 1993 against the resolution passed on no confidence motion moved against the President and Vice­President of Taluka Panchayat and District Panchayat and a copy of the resolution as well as orders of the Hon'ble Court passed in Special Civil application no.14565/03 and Special Civil Application no.10079/09 are collectively annexed as Annexure­D.

The respondent no.2 submits that considering the circular issued by the Govt. of Gujarat on 11.12.09 it was crystal clear that the respondent no.2 has no jurisdiction to decide such appeal/revision application and, therefore, through a reasoned order dated 25/28.9.20 the same is not entertained and petitioner is so conveyed and a copy of the order is annexed as Annexure­E. The respondent no.2 submits that, therefore, the contentions raised by the petitioner that the said order is contrary to the principles of natural justice are not teneable as he has not taken any decision on merits and the appeal/revision application is not entertained only on a ground of want of jurisdiction.

4. The respondent no.2 submits that the Hon'ble High Court of Gujarat has also decided the issue of an opportunity to speak/address the members of the House while considering the no confidence motion moved against the Sarpanch. It is submitted that the Hon'ble Court has held that such opportunity is not to be offered but is to be availed by the Sarpanch of the Gram Panchayat. It is submitted that so far as the case on hand is concerned petitioner has addressed the House as reported to the respondent no.2 and a compact disk of videography is available. The respondent no.2 craves

leave to rely upon the judgments of the Hon'ble High Court of Gujarat delivered in Special Civil Application no.8081/18, Special Civil Application no.8501/20 as well as in Letters Patent Appeal no.1135/18 in Special Civil Application no.8059/18 during the course of the hearing in the interest of justice"

13. Learned advocate Mr. Munshaw also relied upon the averments made on behalf of the respondent no.3 - TDO in the affidavit that for the post of Sarpanch, which has fallen vacant, an intimation is sent to the Sub­Divisional Magistrate, Bhavnagar, District Bhavnagar on 31st August, 2020 and it is duly intimated to the authority for holding the election for the vacant post.

14. Learned advocate Mr. Munshaw also relied upon the further affidavit filed on behalf of the respondent no.2 pointing­out the details as under :­

"2. The respondent no.2 most respectfully submits that the General Election of Valukad Gram Panchayat was held on 11th April, 2017 and the result was published by the Sub­ Divisional Magistrate and Officer of State Election Commission on 11.04.2017 and a copy thereof is annexed herewith and marked as Annexure­A. It is submitted that the petitioner who belongs to Scheduled Caste was elected as Sarpanch of the Gram Panchayat on a reserved post. It is submitted that the result of 12 posts of the Membes of Gram Panchayat was also declared but one Ms. Chhayaben Pankajkumar Rao was declared successful from two wards. The respondentno.2 further submits that one Danabhai Khodabhai Parmar belonging to Scheduled Caste was declared elected as Member

of the Gram Panchayat while 6 other Members belong to SEBC category were declared elected.

The respondent no.2 submits that thereafter a first meeting of newly elected body of the Gram Panchayat was held on 27.04.2017 and Ms. Chhayaben P. Rao belonging to SEBC category was elected as Up­Sarpanch.

3. The respondent no.2 craves leave to point out this factual aspect only because the petitioner has raised contentions in the memo of Special Civil Application that he has been targeted only because he belongs to Scheduled Caste.

4. The respondent no.2 submits that a 'No Confidence Motion' was moved by in all 8 Members against the petitioner on 24.07.2020 and a copy thereof is annexed herewith and marked as Annexure­B. It is submitted that the petitioner has addressed a complaint to the Police Sub­Inspector, Vartej Police Station, District Bhavnagar thereafter on 7th August, 2020 against a Member of Gram Panchayat Mr. Parbatbhai Shivabhai Vaghela belonging to Socially and Educationally Backward Class levelling charges of financial irregularities and a copy of the complaint is annexed herewith and marked as Annexure­C.

5. The respondent no.2 submits that a meeting of Gram Panchayat for 'No Confidence Motion' moved against the petitioner was called on 10th August, 2020 and the Up­Sarpanch presided over the meeting and the proceedings of the meeting were videographed. It is submitted that the petitioner as well as all 12 Members (including Ms. Hansaben Vijay Chauhan belonging to Socially and Educationally

Backward Class elected in by election on resignation of Ms. Chhayaben P. Rao from one seat) attended the meeting and the resolution was passed as 9 members started the same and 4 Members opposed it and a copy of the minutes of the meeting is annexed herewith and marked as Annexure­D. It is submitted that the Talati­cum­ Mantri of the Gram Panchayat informed the Taluka Development Officer in this regard and thereafter the said authority through a letter dated 13.08.2020 instructed Talati­cum­Mantri to handover the charge of the post of Sarpanch to Up­Sarpanch and accordingly Up­Sarpanch Ms. Chhayaben P. Rao took over the charge on 14.08.2020.

The respondent no.2 submits that proceedings of the meeting of the Gram Panchayat held on 10.08.2020 is videographed and a Compact Disc is handed over to Advocate Mr. H.S. Munshaw for its production during the course of hearing, if required. It appears that the petitioner did not address the House at length in the said meeting. It is submitted that as per the judgments delivered by the Hon'ble High Court of Gujarat in (1) Special Civil Application no.8081 of 2018, (2) Special Civil Application no.8501 of 2020 and (3) Letters Patent Appeal no.1135 of 2018 in Special Civil Application no.8059 of 2018, such opportunities to be availed by the concerned Sarpanch of the Gram Panchayat facing 'No Confidence Motion' and copies of the judgments are annexed herewith and marked as Annexure­E (Colly.).

6. The respondent no.2 submits that the Government of Gujarat through its Panchayats, Rural Housing and Rural Development Department has issued a Circular dated 15.11.1997 instructing that the vacancies at

Gram Panchayat, Taluka Panchayat and District Panchayat level be informed within 10 days and a copy thereof is annexed herewith and marked as Annexure­F. It is submitted that the vacancies in Gram Panchayats are to be communicated by Taluka Development Officer to a District Collector as per the said Circular and in the instant case, the concerned Taluka Development Officer of Ghogha Taluka Panchayat has complied with the said instructions by way of communicating the vacancy of the post of Sarpanch of Valukad Gram Panchayat through a letter dated 25.08.2020 addressed to the Deputy Collector, Collector Office, Bhavnagar and a copy of the letter as well as statement indicating in all 17 vacant posts is annexed herewith and marked as Annexure­G. It is submitted that further actions are to be taken by the said higher authority as well as State Election Commission, Gujarat State, Gandhinagar.

7. The respondent no.2 submits that as per the latest position even two Members viz. Ms. Hansaben Vijaybhai Chauhan and Ms. Chanduben Rajubhai Khatana have also resigned and a copy of the statement indicating this factual aspect is annexed herewith and marked as Annexure­H.

8. The respondent no.2 submits that the Police Department has taken further steps after the petitioner addressed a complaint dated 07.08.2020 to Police Sub Inspector, Vartej Police Station, District Bhavnagar. It is submitted that the Police Department has closed the file and a copy of the report dated 14th August, 2020 is annexed herewith and marked as Annexure­H­1.

9. The respondent no.2 submits that the petitioner has referred to his complaint dated

27.05.2018 but the same is not received by Bhavnagar District Panchayat. It is stated that the said complaint is addressed to another authority and a copy thereof is annexed herewith and marked as Annexure­I.

10. It is submitted that the petitioner has addressed a complaint dated 17.09.2020 to the respondent no.2 against Mr. Parbatbhai Shivabhai Vaghela, a member of Gram Panchayat about financial irregularities and a copy of the same is annexed herewith and marked as Annexure­J. The respondent no.2 submits that thereafter Taluka Development Officer was instructed to look into the matter and submit his report. It is submitted that Taluka Devleopment Officer, Ghogha Taluka Panchayat has addressed a letter dated 21.11.2011 and submitted his report and it reveals that Mr. Parbatbhai Shivabhai Vaghela had supplied water for the residents of Kharshi area of village Valukad and the residents have voluntarily paid Rs.2,500/­ per house and in response thereto Mr. Vaghela had issued receipts of "Pani Samiti" and the same is contrary to the rules and copies of letter dated 21.11.2020 of Taluka Development Officer, Ghogha Taluka Panchayat as well as Report are annexed herewith and marked as Annexure­K (Colly.). The respondent no.2 submits that the said letter dated 21.11.2020 along with report and other record is received on 25.11.2020. It is stated that a letter dated 11.12.2020 is addressed to the Taluka Development Officer, Ghogha Taluka Panchayat instructing to provide certain more details. It is submitted that further actions in accordance with the provisions of Gujarat Panchayats Act, 1993 would be taken on compliance of the said queries by Taluka Development Officer, Ghogha Taluka Panchayat."

15. Relying upon the above averments made in the affidavit, as well as, further affidavit, learned advocate Mr. Munshaw submitted that the grievances raised in this petition are contrary to the facts on record as it is not in dispute that the petitioner is removed pursuant to passing of No Confidence Motion by majority votes of members of Valukad Juth Gram Panchayat as per provisions of Section 56 of the Act, 1993.

16. In rejoinder to the aforesaid submissions, learned advocate Mr. B.J. Trivedi submitted that on going through the videography made by the competent authority at the time of voting of No Confidence Motion, it appears that the members of Valukad Gram Panchayat were influenced by Shri Raghavbhai Hukabhai, member of the Gram Panchayat who had preferred the application for 'No Confidence Motion'. It was therefore, submitted that the proceedings were not conducted as provided in Section 56 of the Act, 1993.

17. Learned advocate Mr. Trivedi further submitted that after passing of the 'No Confidence Motion', the charge of Sarpanch is given to a person, who does not belong to Scheduled Caste or Scheduled Tribe though the member belonging to Scheduled Caste and Scheduled Tribe was available and therefore, the intention of the respondent is very clear that even if the post of the Sarpanch is reserved for the Scheduled Caste and Scheduled Tribe, the charge is given to the Upsarpanch who does not belong to the reserved category and therefore, there is a violation of the provisions of the Act, 1993 read with relevant provisions of the Constitution of India

whereby the reservation for the post of Sarpanch for Scheduled Caste and Scheduled Tribe is prescribed.

18. Having heard the learned advocates for the respective parties and having gone through the materials on record, it emerges that the petitioner, who belongs to Scheduled Caste and Scheduled Tribe has been removed as a Sarpanch of the Valukad Gram Panchayat by handing over the charge to the Upsarpanch, who does not belong to reserved class community.

19. However, on perusal of the averments made by the respondent nos.2 and 3 on oath, it emerges that the procedure prescribed under Section 56 of the Act, 1993 is followed and admittedly the petitioner is removed by majority who voted in favour of the 'No Confidence Motion' as out of 13 members of the Panchayat, 9 members voted in favour of the 'No Confidence Motion' and accordingly, the petitioner was removed as Sarpanch.

20. The provision of Section 56 of the Act, 1993 reads as under :­

"56. (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.

(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 offices of both the Sarpanch and Upa­Sarpanch become vacant simultaneously, such Officer as the Taluka Development Officer may authorise in this behalf shall, pending the election of the Sarpanch, exercise all the powers and preform all the functions and duties of Sarpanch but he shall not have the right to vote in any meetings of the panchayat.

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

(b) If the Sarapnach 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."

21. From the above provision, it is clear that the 'No Confidence Motion' was moved, meeting was called, petitioner was given an opportunity to represent his defence and thereafter voting took place and two third majority of the members voted in favour of the 'No Confidence Motion'. Thus, the petitioner is removed as

Sarpanch automatically in view of provision of Sub­section (2) of Section 56 of the Act, 1993. In view of above fact situation, it cannot be said that there is a violation of any of the provision of the Act, 1993 by the respondents.

22. With regard to the contention of the petitioner that the charge of post of a Sarpanch, reserved for Scheduled Caste and Scheduled Tribe, could not have been given to the Upsarpanch, who does not belong to the reserved category, is also not tenable in law in view of Section 55 of the Act, 1993, which reads as under :­

"55. (1) Save as otherwise expressly provided by or under this Act, the executive power, for the purpose of carrying out the provisions of this Act and the resolutions passed by a village panchayat shall vest in the Sarpanch thereof who shall be directly responsible for the due fulfilment of the duties imposed upon the panchayat by or under this Act. In the absence of the Sarpanch his power and duties shall, save as may be otherwise prescribed by rules, be exercised and performed by the Upa­Sarpanch. (2) Without prejudice to the generality of the foregoing provision:­

(a) the Sarpanch shall­

(i) preside over and regulate the meeting of the panchayat;

(ii) exercise supervision and control over the acts done and actions taken by all officers and servants of the panchayat;

(iii) incur contingent expenditure upto 1[five hundred rupees] at any one occasion;

(iv) operate on the fund of the panchayat including authorisation of payment, issue of cheques and refunds;

(v) be responsible for the safe custody of the fund of the panchayat;

(vi) cause to prepared all statements and reports required by or under this Act ;

(vii) exercise such other powers and discharge such other functions as may be conferred or imposed upon him by this Act or rules made thereunder,

(b) the Upa­Sarpanch shall­­

(i) in the absence of the Sarpanch preside over and regulate the meetings of the panchayat;

(ii) exercise such of the powers and perform such of the duties of the Sarpanch as the Sarpanch may, from time to time delegate to him ;

(iii) in case the Sarpanch has been continuously absent from the village for more than fifteen days or is incapacitated to exercise the powers and perform the duities 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 sub­section (2), no money shall be withdrawn from the fund of the panchayat except with the signature of the [Sarpanch or a member of the panchayat authorized in that behalf by the panchayat, and the Secretary]."

23. In view of the above provision which provides that in absence of Sarpanch, Upsarpanch is required to discharge functions of Sarpanch, there is no illegality in handing over the charge to the Upsarpanch when Sarpanch is removed legally by following the due process of law as prescribed under Section 56 of the Act, 1993.

24. In view of the forgoing reasons, the petition fails and is accordingly dismissed with no order as to costs.

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