Laljibhai Ramjibhai Makwana vs The District Developement ...
2021 Latest Caselaw 16894 Guj

    C/LPA/930/2021                                   CAV JUDGMENT DATED: 27/10/2021



              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/LETTERS PATENT APPEAL NO. 930 of 2021

              In R/SPECIAL CIVIL APPLICATION NO. 8520 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR

and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT

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

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

2 To be referred to the Reporter or not ? yes

3 Whether their Lordships wish to see the fair copyNo 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 ?

========================================================== LALJIBHAI RAMJIBHAI MAKWANA Versus THE DISTRICT DEVELOPEMENT OFFICER ========================================================== Appearance:

MR BM MANGUKIYA(437) for the Appellant(s) No. 1 MS BELA A PRAJAPATI(1946) for the Appellant(s) No. 1 for the Respondent(s) No. 1,2,3 ==========================================================

CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR and HONOURABLE MRS. JUSTICE MAUNA M. BHATT

Date : 27/10/2021

CAV JUDGMENT (PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)

C/LPA/930/2021 CAV JUDGMENT DATED: 27/10/2021

1. This intra-court appeal lays a challenge to the

correctness and legality of the judgment dated 29.9.2021

passed by learned Single Judge in Special Civil Application

No.8520 of 2021 whereunder the challenge made to the

Resolution dated 5.5.2021 passed in the meeting of Gram

Panchayat, Sejakpur, whereby No Confidence Motion

moved against the appellant herein (for the purposes of

convenience, hereinafter referred to as 'petitioner') came

to be accepted and Special Civil Application came to be

dismissed.

2. Brief background of the case is as under:-

2.1 Election to the Gram Panchayat, Sejakpur was held

during December, 2016 in which election, petitioner

contested for the seat reserved for Scheduled Caste and

was declared elected. Appellant was elected as Sarpanch

of the Gram Panchayat which term was for a period of five

years i.e. till December, 2021.

2.2 Six members of the Gram Panchayat moved a No

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Confidence Motion against the petitioner on 26.8.2019 and

said No Confidence Motion was submitted to Taluka

Development Officer, who in turn, forwarded a

communication dated 16.9.2019 intimating the members

of the Gram Panchayat including the petitioner that a

meeting had been convened on 20th September, 2019 for

passing the Motion of No Confidence against the

appellant. In the meeting which came to be convened on

20.9.2019 the Motion of No Confidence moved against

petitioner was considered and all the members including

petitioner was present at said meeting. Five members

voted in favour of passing the Motion of No Confidence

and four members voted against moving the Motion of No

Confidence. Therefore, 1st respondent recorded that No

Confidence Motion was not passed with 2/3 of the total

members of Panchayat and accordingly it was recorded

that Motion of No Confidence had not been passed against

the petitioner.

2.3 Subsequently on 23.3.2021, another Motion for No

Confidence was moved by six members of the Gram

Panchayat alleging that petitioner was indulging in

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corruption in certain construction works. Said No

Confidence Motion was forwarded by Talati-cum-Mantri to

Taluka Development Officer, Chuda by communication

dated 10.4.2021 stating therein that Sarpanch has to call

for a meeting of Gram Panchayat for the purposes of

discussion of Motion of No Confidence moved against

petitioner within a period of 15 days. Taluka Development

Officer issued a notice on 28.4.2021 convening the

meeting of Gram Panchayat on 5.5.2021 at 11 a.m. for

the purposes of discussion of No Confidence Motion.

Though petitioner requested for cancellation of the

meeting on account of pandemic of Covid-19 prevalent,

meeting as scheduled was held on 5.5.2021 and same was

discussed at item No.1 of agenda and in the said meeting,

nine members including the petitioner were present, out

of whom, six members voted in favour of No Confidence

Motion moved against petitioner, whereas three members

voted against the Motion of No Confidence. Thus, number

of members voted in favour of the Motion being 2/3 of the

total number of members, Motion of No Confidence was

passed. Taluka Development Officer, Chuda vide

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communication dated 10.5.2021 addressed to Talati-cum-

Mantri, Sejakpur Gram Panchayat intimated that charge of

Sarpanch has been handed over to Upa-Sarpanch.

2.4 Petitioner challenged the Motion of No Confidence

moved against him before Development Commissioner by

filing an application on 18.5.2021 and was intimated that

said application was not maintainable before Development

Commissioner by communication dated 18.5.2021. Hence,

Special Civil Application was filed under Article 226 of the

Constitution of India challenging the Resolution dated

5.5.2021 recording No Confidence Motion against the

petitioner and said Special Civil Application came to be

dismissed by the learned Single Judge by arriving at a

conclusion that there is due compliance of Section 56 of

the Act in as much as the Resolution itself disclosed that

petitioner though had participated in the meeting had not

spoken at the meeting held on 5.5.2021 in which the No

Confidence Motion was moved against the petitioner.

Hence, this intra-court appeal has been preferred by

unsuccessful petitioner.

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3. We have heard Mr. B.M.Mangukia, learned

counsel appearing on behalf of Ms. Bela A. Prajapati for

appellant and we are of the considered view that this is

not a fit case for issuance of notice and/or the appeal

being admitted for the reasons indicated hereunder:-

3.1 The thrust of the argument of learned counsel

appearing for the petitioner is that Section 56 of the Act

mandates that Sarpanch or Upa-Sarpanch against whom a

Motion of No Confidence is moved shall have a right to

speak or otherwise to take part in the proceedings of the

meeting and learned Single Judge of this Court in

Geetaben Bharatbhai Patel Vs. State of Gujarat

reported in 2006(1) GLH 91 has held that the

requirement of sub-section (3) of Section 56 is mandatory

in nature and said provision had been violated as

petitioner was not given opportunity to speak. He would

also elaborate his submission by contending that learned

Singe Judge of this Court in the case of Suvarnaben

Chetanbhai Raval Vs. State of Gujarat and 2 others

in Special Civil Application No.13685 of 2014

disposed of on 24.12.2014 had quashed or set aside the

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Resolution recorded passing the Motion of No Confidence

against the Sarpanch, on the ground that the Sarpanch

had not been provided opportunity to address the House

and in fact, the Division Bench in Ketan Laxmichand

Shah Vs. Geetaben Bharatbhai Patel in Letters

Patent Appeal No.1677 of 2005 by order dated

8.12.2005 had affirmed the judgment of learned Single

Judge which has not been reversed or set aside by the

Hon'ble Apex Court and, as such, on the date of No

Confidence Motion moved against the petitioner, the

judgment of Geetaben Bharatbhai Patel has held the field

and thereby there is a clear violation of sub-section (3) of

Section 56 of the Act in so far as the petitioner is

concerned and, as such, the Resolution dated 5.5.2021 is

bad in law. He would also contend that a person against

whom No Confidence Motion is moved will have a right to

speak and such person need not ask permission or seek

leave to speak as it would be the duty of the person

presiding the meeting to call upon such person against

whom No Confidence Motion is moved to call upon such

person to speak and in the instant case, record does not

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disclose that such opportunity to speak at the meeting in

which the No Confidence Motion had been moved was

extended to the petitioner and this by itself is sufficient to

hold that there has been violation of sub-section (3) of

Section 56. He would also submit that learned Single

Judge committed a serious error in arriving at a

conclusion that judgment of Geetaben's case rendered

by learned Single Judge is per incuriam and learned Single

Judge ought to have followed judgment of Geetaben as

affirmed in Letters Patent Appeal by Division Bench which

was binding on the learned Single Judge. Hence, he has

sought for the appeal being admitted and prayer for same

being allowed by setting aside the order of learned Single

Judge and consequently allowing Special Civil Application

No.8520 of 2021 by setting aside the Resolution passed

by Gram Panchayat dated 5.5.2021.

4. Having heard the learned counsel appearing for

the appellant, we notice that in Geetaben's case,

learned Single Judge after analyzing sub-section (3) of

Section 56 has held to the following effect:-

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"10.3 Section 56 of the said Act provides for motion of no confidence. Sub-section (1) of section 56 provides that any member who intends to move a motion of no confidence against the Sarpanch or Up-Sarpanch may give notice thereof in the prescribed form to the Panchayat concerned and if the notice is supported by one half of the total number of members of the Panchayat concerned, the motion may be moved. Sub-section (2) of section 56 provides that where a motion is carried against the Sarpanch or, as the case may be, the Up-Sarpanch by the majority of not less than two-thirds of the total number of the members of the Panchayat, the Sarpanch or, as the case may be, the Up-Sarpanch, 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. Subsection (3) of section 56 provides that notwithstanding anything contained in the Act or the Rules made thereunder, a Sarpanch or as the case may be, Up-Sarpanch 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). Sub- section (5) of section 56 provides that notwithstanding anything contained in section 91 or 95 a meeting of the Panchayat for dealing with a motion of no confidence shall be called within a period of fifteen days from the date on which the notice of such motion is received by the Panchayat and if the Sarpanch fails to call such a meeting, the Secretary of the Panchayat shall forthwith make a report thereof to the competent authority and the competent authority shall call a meeting of the Panchayat within fifteen days from the date of receipt of

C/LPA/930/2021 CAV JUDGMENT DATED: 27/10/2021

the report. Section 56 of the said Act reads as follows:-

"56. Motion of no-confidence. (1) Any member who intends to move a motion of no confidence against the Sarpanch or the Up-Sarpanch 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 member of the Panchayat concerned, the motion may be moved.

(2) Where in the case of the Sarpanch or, as the case may be, the Up-Sarpanch, the motion is carried by the majority of not less than two-thirds of the total number of the members of the Panchayat, the Sarpanch, as the case may be, the Up-Sarpanch, 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 Up-

Sarpanch, 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 Up-Sarpanch become vacant simultaneously, such officer as the Taluka Development Officer may authorize in this behalf shall, pending the election of the Sarpanch, exercise all the powers and

C/LPA/930/2021 CAV JUDGMENT DATED: 27/10/2021

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 shall call a meeting of the Panchayat within a period of fifteen days from the date of the receipts of the report.""

5. This judgment was challenged in Letters Patent

Appeal No.1677 of 2005 whereunder the Division Bench

affirmed the order of learned Single Judge. It can be

noticed at this juncture itself that respondent No.6 before

learned Single Judge in Geetaben's case, who was the

appellant in Letters Patent Appeal and who had

challenged the order of learned Single Judge had raised a

contention to the effect that the petitioner therein namely,

the person against whom No Confidence Motion had been

moved had not raised such a contention which was

repelled by the Division Bench on the ground that such

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contention cannot be allowed to be urged as the appellant

namely, the 6th respondent had clearly submitted that

Court may proceed on the basis that the "finding of the

Appeal Committee on the question of opportunity not

being given to the petitioner to address the meeting",

which fact had been acceded to by way of concession. It

was thus observed by the Division Bench to the following

effect:-

"2. Mr. Nagarkar, learned counsel for the appellant, has submitted that the learned Single Judge has erred in proceeding on the basis that the petitioner was not given opportunity to address the meeting. It is submitted that there was no restraint against the petitioner addressing the meeting and, therefore, the learned Single Judge has proceeded on an erroneous basis.

3. The appellant cannot be permitted to urge such a contention as the learned counsel for the appellant herein, who was respondent No.6 in the petition, had submitted that the Court may proceed on the basis that the finding of the appeal committee on the question of opportunity not being given to the petitioner to address the meeting has achieved finality."

Hence, the fact obtained discloses that on account of

petitioner therein having conceded before the learned

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Single Judge that it may proceed on the basis of the

records of the appeal committee and finding recorded by

said committee which disclosed that petitioner therein had

not been given opportunity which was sought for whereas

the fact obtained in the instant case discloses that

petitioner was very much present and after discussion the

No Confidence Motion was put to vote and, as such, said

judgments would not come to the rescue of

appellant/petitioner herein.

6. Learned Single Judge has taken note of the

judgment of the Division Bench rendered in Letters

Patent Appeal No.1135 of 2018 decided on 31.8.2018

whereunder Coordinate Bench had examined an issue

similar to the one obtained in the present case and has

held that participation in the meeting had taken place by

the person against whom No Confidence Motion had been

moved without raising any objection or exercising the

right to speak and, as such, it could not be violative of the

relevant provision of the Act.

7. Learned Single Judge also took note of the

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judgment of yet another Division Bench rendered in

Letters Patent Appeal No.983 of 2018 in the matter of

Bharatbhai Ravjibhai Vadi Vs. State of Gujarat and

others disposed of 4.8.2021 which had also considered

Geetaben's case and had not chosen to interfere. To

arrive at a conclusion that petitioner in the instant case

had not made out a case to take a different view, as two

later decisions are clearly applicable to the facts of the

present case. Mr. Mangukiya, learned counsel for the

appellant has made a valid attempt to contend that the

learned Single Judge had opined that Geetaben's case is

per incuriam, which is factually incorrect. On the other

hand, it was the contention of learned counsel appearing

for the petitioner before learned Single Judge that

Geetaben's case held the field and latter judgment of

the Division Bench rendered in Letters Patent Appeal

No.1135 of 2018 on 31.8.2018 is per incuriam and is not a

good law. It is in this background the learned Single Judge

has taken note of the authoritative principle laid down by

the Hon'ble Apex Court in the case of Siddharam

Satlingappa Mhetre Vs. State of Maharashtra and

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others reported in (2011)1 Supreme Court Cases 694

to arrive at a conclusion that judicial discipline commands

that the latter decision would prevail when there are two

judgments of Coordinate Benches. The expression 'per

incuriam' is defined in Black's Law Dictionary, Ninth

Edition as under:-

"Per incuriam-(Of a judicial decision) wrongly

decided, usu. because the judge or judges were

ill-informed about the applicable law."

8. In Young Vs. Bristol Aeroplane Co. Ltd.

reported in (1946)1 All England Reporter 98 (HL), the

House of Lords observed that expression "incuria" literally

means "carelessness". In practice per incuriam appears

to mean per ignoratium. English Courts have developed

this principle in relaxation of the rule of stare decisis. The

"quotable in law" is avoided and ignored if it is rendered

"in ignoratium of a statute or other binding authority". The

same has been accepted, approved and adopted by the

Hon'ble Apex Court while interpreting Article 141 of the

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Constitution as it embodies the doctrine of precedents as

a matter of law vide State of Bihar Vs. Kalika Kuer

reported in (2003)5 SCC 448.

9. Hon'ble Apex Court in Bharat Petroleum

Corpn. Ltd. Vs. Mumbai Shramik Sangha reported in

(2001)4 SCC 448 has held that two Judge Bench is bound

by the decision of Constitution Bench consisting of five

judges and even if it doubts the correctness of that

decision, the Course open is to order that the matter be

heard by a third judge Bench and in conclusion it was held

that the decision of a Larger Bench is binding.

10. It is trite law that where there are judgments of equi

jurisdiction, the later decision prevails. The Hon'ble Apex

Court in the matter of Union of India Vs. Nirala Yadav-

(2014)9 SCC 457 has held that where the decision of an

earlier larger Bench has been noticed and explained, then

the decision of the later smaller Bench will be binding

precedent. In the matter of Sunil Damodar Gaikwad Vs.

State of Maharashtra reported in (2014)1 SCC 129,

Hon'ble Apex Court has held that a decision which merely

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adds to the principle enunciated by a larger Bench or

explained the earlier decision of a larger Bench will not be

considered to be a decision in conflict with the earlier

larger Bench. In the instant case, the learned Single Judge

after having noticed Geetaben's case has rightly arrived

at a conclusion that latter judgment of equi jurisdiction

has considered not only Geetaben's case but has also

discussed the tenor and language of sub-section (3) of

section 56 of the Act to arrive at a conclusion that

participation in the meeting would suffice to arrive at a

conclusion that there is a due compliance of the mandate

of sub-section (3) of Section 56.

11. At the cost of burdening this judgment, it

requires to be noticed that learned Single Judge has noted

and extracted the statement made by Talati-cum-Mantri

who was respondent No.3 and who had filed an affidavit in

Special Civil Application reiterating that there was due

compliance of sub-section (3) of Section 56 whereunder

3rd respondent before learned Single Judge has

categorically contended and stated that agenda of the

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meeting convened for the purposes of moving No

Confidence Motion against the petitioner was served upon

all members including petitioner and Upa-Sarpanch of the

Gram Panchayat presided over the meeting and after

discussion, No Confidence Motion moved against the

petitioner was put to vote. It is also noticed by learned

Single Judge that affidavit of 3 rd respondent at para 10

disclosed that petitioner was present at the meeting

throughout, had even opposed the No Confidence Motion

moved against him and had not even made an attempt to

address at the meeting. In other words, there was no

denial of opportunity to the petitioner to speak at the said

meeting. At this juncture, if the language employed in

sub-section (3) of Section 56 is perused, it would clearly

indicate that person against whom No Confidence Motion

is moved, "shall have a right to speak or otherwise

to take part in the proceedings of such a meeting

(including the right to vote)". The principle underlying

behind this provision is to ensure that such person would

be able to persuade or convince the members as to why

said Motion of No Confidence should be dropped or in

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other words, it should not be carried forward. In a given

case, if a person against whom No Confidence Motion is

moved were to sit at the said meeting does not speak at

the said meeting or participates in the meeting without

any demur or objection and allows the No Confidence

Motion to be moved against him, cannot turn around and

contend that there is a duty cast on the part of the person

who presided over the meeting to call upon such person

to speak even if he is not willing and record such fact in

the minutes of the meeting. This argument would only be

stretching the logic to an illogical end or in other words,

adding something to the Statute which is not there.

Hence, we are of the considered view that we are in

complete agreement with the judgment of the learned

Single Judge rendered in Special Civil Application

No.8204 of 2018 in the matter of Bharatbhai

Ravjibhai Vadi Vs. State of Gujarat on 11-7-2018

whereunder it has been held that there is no right

conferred on a person against whom No Confidence

Motion is moved, to invite him to speak. Right to speak is

inherent as provided in sub-section (3) of Section 56 and

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it would also be the choice or discretion of such person to

exercise his right to speak and object to the Motion of No

Confidence or otherwise participate in the proceedings

without even objecting and such person would also be

certified to remain silent or would be certified not to

speak against the Motion of No Confidence. Right to

remain silent is also inherent and it cannot be gainsaid

that there is a statutory obligation on the part of the

person presiding over the meeting to call upon such

person to speak and record in the minutes of the meeting

of such opportunity having been extended dehors the fact

that the person having not sought for such opportunity

being extended to speak at the meeting.

12. For the cumulative reasons aforesaid, we proceed to

pass the following

ORDER

(i) Letters Patent Appeal No.930 of 2021 stands

dismissed and order dated 29.9.2021 passed

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by learned Single Judge in Special Civil

Application No.8520 of 2021 is affirmed.

(ii) Costs made easy.

(ARAVIND KUMAR,CJ)

(MAUNA M. BHATT,J) RADHAKRISHNAN K.V.