Gujarat High Court

Buniben Bharatbhai Padariya vs District Development Officer on 18 November, 2021

Bench: Biren Vaishnav

      C/SCA/6004/2020                              JUDGMENT DATED: 18/11/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 6004 of 2020


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE BIREN VAISHNAV
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 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 ?

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                        BUNIBEN BHARATBHAI PADARIYA
                                    Versus
                        DISTRICT DEVELOPMENT OFFICER
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Appearance:
MR UMARFARUK M KHARADI(8155) for the Petitioner(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 1,2,3
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     CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                               Date : 18/11/2021

                              ORAL JUDGMENT

1. Heard Mr. Umarfaruk M. Kharadi, learned counsel for the

petitioner and Mr. H.S. Munshaw, learned counsel for the

respondents. Perused the record.

C/SCA/6004/2020 JUDGMENT DATED: 18/11/2021

2. In this petition, under Article 226 of the Constitution of India,

the petitioner has made a prayer to quash and set aside the

resolution of no confidence motion dated 12.2.2020 and the

order dated 14.2.2020 by which the charge of Sarpanch was

taken away from the petitioner.

3. The facts in brief are as under:

3.1. The petitioner contested the election in the year

2018 of the Sarpanch and was elected as such.

3.2. The motion of no confidence under Section 56 of

the Act was moved against the petitioner on 17.1.2020. It is not

in dispute that motion of no confidence was moved in

accordance with the provisions of the Statute and the Rules in

force. The resolution of 12.2.2020 was passed by 9 members

present, including the petitioner of which, 6 supported the

motion of no confidence.

3.3. The ground of challenge in the petition apart from

other grounds, essentially, is that one member namely; Mr.

C/SCA/6004/2020 JUDGMENT DATED: 18/11/2021

Taviad Bhopatbhai Akhambhai who voted against the

petitioner in support of the majority was disqualified by virtue

of the provisions of Section 30(m) of the Gujarat Panchayats

Act, 1993 for having more than two children.

4. Mr. Umarfaruk M. Kharadi, learned counsel for the petitioner

would submit by relying on the relevant documents produced at

Annexure `D' to the petition that once the member had

incurred such disqualification, he was not competent to vote in

such election and, therefore, the resolution ought to fail and the

motion of no confidence should be quashed and set aside.

5. He would submit that the moment, the 3rd child was born, there

will be an automatic disqualification and evident it is from the

facts of this case on the date when the resolution was moved,

Mr. Taviad Bhopatbhai Akhambhai had a 3 rd child and,

therefore, stood disqualified.

6. Reliance was placed on a decision of this Court in the case of

Mulchandbhai Jethabhai Parmar v. District Development Officer

reported in 2010(1) GLR 686. In support of his submission that

C/SCA/6004/2020 JUDGMENT DATED: 18/11/2021

the moment the number of children increased, there has to be a

disqualification. Reliance was also placed on the decision of

this Court in the case of Nayanaben Babubhai Hathila v. State

of Gujarat reported in 2015(1) GLR 464. Para 16 thereof was

relied upon to submit that the disqualification is automatic and,

therefore, there is no need for an order of Competent

Authority to disqualify such a person. He further relied on the

decision of this Court in the case of Chirag Chitranjanbhai

Bhrambhatt v. State of Gujarat reported in 2020(2) GLR 1297,

wherein, the decision in the case of Nayanaben Babubhai

Hathila (Supra) has also been referred to. He further relied on

the decision of the Hon'ble Supreme Court of India in the case

of Ganesh Sukhdeo Gurule v. Tahsildar Sinhar reported in

2019(3) SCC 211 which talks of the coram for a resolution to

be legal; that it has to be passed by majority of not less than

2/3rd of the total number of present of members, who were at

the time entitled to vote and in entity. In Mr. Kharadi's

submission and in view of the fact that in the present case

2/3rd majority was not there, the same resolution should be

held to be invalid. Relying on Paragraph 12 of the rejoinder,

Mr. Kharadi would submit that if 3rd child is born after the

C/SCA/6004/2020 JUDGMENT DATED: 18/11/2021

grace period provided in the proviso, such birth itself results in

disqualification.

7. Mr. Munshaw, learned counsel appearing for the Panchayat

would support the resolution.

8. Having heard learned counsels for the respective parties, it is in

the fitness of things to consider whether there is an automatic

disqualification under Section 30(m) of the Act on the birth of

a 3rd child. Section 30(m) reads as under:

Section 30(m): who has more than two children:

Provided that a person having more than two children on the date of commencement of the Gujarat Local Authorities Laws (Amendment) Act, 2005 (hereinafter in this clause referred to as "the date of such commencement"), shall not be disqualified under this clause so long as the number of children he had on the date of such commencement does not increase:

Provided further that a child or more than one child born in a single delivery within the period of one year from the date of such commencement shall not be taken into consideration for the purpose of disqualification under this clause.

Explanation.- For the purpose of this clause,- (i) where a couple has only one child on or after the date of such commencement, any number of children born out of single subsequent delivery shall be deemed to be one entity; (ii) 'child' does not include an adopted child or children.]

C/SCA/6004/2020 JUDGMENT DATED: 18/11/2021

9. For the purposes of deciding the present controversy, it would

be also relevant to reproduce Section 32 of the Act, which

reads as under:

Section 32: Disability from continuing as members:

             (1)        If any member of a Panchayat,

             (a)       who is elected, as such, was subject to any of the

disqualifications mentioned in 1 [sub-section (1) of section 30] at the time of his election,

(b) during the term for which he has been elected, incurs any disqualifications mentioned in 1 [sub-section (1) of section 30], he shall be disabled from continuing to be a member, and his office shall become vacant.

(2) In every case, the question whether a vacancy has arisen, shall be decided by the competent authority. The competent authority may give its decision either on an application made to it by any person, or on its own motion, untill the competent authority decides that the vacancy has arisen, the member shall not be disabled under sub section (1) from continuing to be a member.

Any person aggrieved by the decision of the competent authority may, within a period of fifteen days from the date of such decision, appeal to the State Government and the orders passed by the State Government in such appeal shall be final: Provided that no order shall be passed under this sub- section by the competent authority against any member without giving him a reasonable opportunity of being heard.

10. Reading Section 32 makes it evident that if any Member of a

Panchayat who is either elected as such, was subject to any

C/SCA/6004/2020 JUDGMENT DATED: 18/11/2021

disqualification at the time of his election or during his term

for which he has been elected incurs any disqualification, he

shall be disabled from continuing to be a Member and his

Office shall become vacant. In every case, the question whether

a vacancy has arisen, shall be decided by the Competent

Authority. The Competent Authority may give its decision

either on an application made by a person or on its own

motion. The Section further says that until the competent

authority decides that the vacancy has arisen, the Member shall