Ushaben Sureshbhai Patel vs State Of Gujarat
2022 Latest Caselaw 4361 Guj

     C/SCA/5606/2022                            JUDGMENT DATED: 25/04/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 5606 of 2022
                                   With
               R/SPECIAL CIVIL APPLICATION NO. 5610 of 2022

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.Y. KOGJE

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1     Whether Reporters of Local Papers may be allowed                No
      to see the judgment ?

2     To be referred to the Reporter or not ?                         No

3     Whether their Lordships wish to see the fair copy               No
      of the judgment ?

4     Whether this case involves a substantial question               No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                       USHABEN SURESHBHAI PATEL
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MR NAMAN K BRAHMBHATT(11307) for the Petitioner(s) No. 1
MS JYOTI BHATT, AGP for the Respondent(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 1
MR DIPAK SANCHELA, ADVOCATE WITH
MR HARIBHAI J PATEL(9810) for the Respondent(s) No.
10,11,12,13,14,15,16,17,18,19,3,4,5,6,7,8,9
NOTICE SERVED BY DS for the Respondent(s) No. 2
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    CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                            Date : 25/04/2022
                            ORAL JUDGMENT

1. Rule. Ms.Jyoti Bhatt, learned AGP waives service of rule for the respondent-State and Learned advocate Mr.Dipak Sanchela waives service of rule for the respondent nos.3 to 19.

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2. Since both these petitions raising identical issue involved in Special Civil Application No.5286 of 2022, learned advocates for the respective parties have requested the Court to take up these petition for final disposal, as the same are substantially covered with the issue of Special Civil Application No.5286 of 2022. Accordingly, the Court, upon request, has taken up both these petitions for final disposal.

3. At the outset, it is necessary to observe that Special Civil Application No.5286 of 2022 was filed in connection with the same issue. The motion of no confidence, which was challenged before the Regional Commissioner by the members, who had voted in the no confidence motion has been dealt with and disposed of by separate order, whereas the present petitioners are the President and Vice President respectively of the very municipality viz. Aamod Municipality against whom motion of no confidence was moved.

4. This petition under Article 226 of the Constitution of India is filed for issuance of appropriate writ, order or direction to quash and set aside the motion of no confidence against the petitioners, who are elected as President and Vice President, respectively.

5. It is a case where the election of Aamod Municipality consisting of 24 members was held and the result of the election thus, held was declared by the notification dated 02.03.2021. The election of the President and Vice President was held on 17.03.2021 and one Maheshbhai Dhulabhai Patel and Ushaben Sureshbhai Patel came to be elected as President and Vice President, respectively. The motion of no confidence was moved by 12 members against the President and Vice President of

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Aamod Municipality on 09.02.2022 invoking Section 36(1) of the Act.

6. On such motion, a special general meeting came to be conveyed on 03.03.2022 as per Section 51(2) of the Act for which a notice dated 25.02.2022, as provided under the Act came to be issued. In the special general meeting conveyed on 03.03.2022, all 24 members had remained present and the motion of no confidence came to be passed purportedly by raising a fingers and 17 members purportedly supported the motion of no confidence, and therefore, the motion of no confidence was treated to have been passed with 2/3 majority.

7. It is the case of the petitioners that considering the date on which the petitioners have assumed the office along with other members of the municipalities, the motion of no confidence was not maintainable in view of the pronouncement of this Court in case of Shivangiben Chetankumar Patel Vs. State of Gujarat & Ors. reported in 2019 (2) GLR 865 and also in view of an unreported decision in case of Narenbhai Gunvantlal Jayaswal Vs. State of Gujarat passed in Special Civil Application No.1994 of 2021.

8. It is the case of the petitioners that the motion of no confidence came to be supported by 17 councilors out of 24 councilors. However, the figure of 17 councilors supporting the no confidence was arrived at on account of misconception, where 2(two) members of the municipality out of 17 had put up their case that under a mistaken belief they had actually raised their hands in support of the petitioners not realizing that the raising of the hand was for the purpose of supporting the motion of no confidence in the petitioners, and therefore, affidavit in this

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regard is also placed on record.

9. Learned advocate for the respondents submitted that the judgment of Shivangiben Chetankumar Patel (supra)may not apply with full force to the facts of the present case considering the fact that the Division Bench was examining the provisions regarding no confidence motion in connection with the Gujarat Panchayats Act, and therefore, where the provisions in the present case being under the Gujarat Municipalities Act, where the specific provision is made in connection of no confidence and if necessary, can be challenged before the Regional Commissioner of Municipalities, invoking of Article 226 of the Constitution of India in the facts of the present case, may not be justified.

10. It is also submitted that the period of 1(one) year is not a sacrosanct in so far as the provisions of the Gujarat Municipalities Act is concerned more particularly, where the provisions of the Gujarat Panchayats Act provides for coextensive tenure of 5 years for the Sarpanch and Upsarpanch. The tenure prescribed for the President and Vice President in the provisions of the Gujarat Municipalities Act is 2 ½ years, and therefore, directly applying the provisions of the Gujarat Panchayats Act and the judgment in that regard may not be justified.

11. Learned advocate for the respondents also submitted that the issue regarding the support of the 2(two) members, who have filed an affidavit before this Court, has to undergo the process of leading of evidence, and therefore, also, interference on that basis, may not be required.

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12. Having considered the rival submissions made by learned advocates for the respective parties and having perused the documents on record. Considering the provisions of Gujarat Municipalities Act, the relevant provision being Chapter-III of the Municipality where Section 31 provides for the President and Vice President to be elected by the Councilors amongst themselves. Section 32 provides for the election of such President and Vice President. Section 33 of the Act provides for terms of office of President and Vice President, wherein Section 33(1)(a) provides that the term of office of President and Vice President of the municipality shall be 2 ½ years. It is pertinent to observe that sub-clause (b) provides that subject to the other provisions of this Section the President and Vice President shall be eligible for re-election, meaning thereby, even after the expiry of the period of term of 2 ½ years, the President and Vice President can be re-elected.

13. The mention of this provision is necessary, as the contention raised by the respondents is to the effect that the pronouncement of the Division Bench of this Court in case of Shivangiben Chetankumar Patel(supra)may not apply to the Gujarat Municipalities Act in view of variation in the tenure. However, this Court in case of Narenbhai Gunvatlal Jayaswal(supra) has applied the very decision of Shivangiben to the provisions of Gujarat Municipalities Act and concluded that the motion of no confidence cannot be brought against the elected President and Vice President within a period of 1(one) year. This Court in case of Shivangiben Chetankumar Patel has held as under:-

"46. For the aforesaid reasons, the Letters Patent Appeal No.543 of 2017 is allowed. The order dated

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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."

14. The Division Bench referred to decision of Vipulbhai Chaudhary Vs. Gujarat Co-operative Milk Marketing Federation Ltd. reported in 2015 (8) SCC 1 particularly Paragraph No.52, which would read as under:-

"52. Now that this Court has declared the law regarding the democratic set up of a cooperative society and that it is permissible to remove an elected office bearer through motion of no confidence, and since in many States, the relevant statutes have not carried out the required statutory changes in terms of the constitutional mandate, we feel it just and necessary to lay down certain guidelines. However, we make it clear that these guidelines are open to be appropriately modified and given statutory shape by the competent legislature/authority.

52.1. Having gone through the provisions regarding motion of no confidence in local selfgovernments, we find that there is no uniformity with regard to the procedure and process regarding motion of no confidence. Some States provide for a protection of two years, some for one year and a few for six months, to the office bearers in office before moving a motion of no confidence. However, majority of the States provide for two years and a gap of another one year in case one motion of no confidence is defeated. Bihar Panchayat Raj Act, 2006 provides for a protection of two years and one year, Bihar Municipal Act, 2007 provides for a protection of two years and one year, Himachal Pradesh Panchayati Raj Act, 1994 provides for a protection of two years and two years, Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 provides for a protection of two and a half years, Madhya Pradesh Municipalities Act, 1961 provides for a protection of

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two years and one year, Manipur Panchayati Raj Act, 1994 provides for a protection of two years and one year, Orissa Panchayat Samiti Act, 1959 provides for a protection of two years, Orissa Grama Panchayats Act, 1964 provides for a protection of two years, Punjab Panchayati Raj Act, 1994 provides for a protection of two years, Rajasthan Panchayati Raj Act, 1994 provides for a protection of two years and one year, Rajasthan Municipalities Act, 2009 provides for a protection of two years and Uttar Pradesh Panchayati Raj Act, 1947, as followed by Uttarakhand, provides for a protection of two years and one year.

52.2 Having regard to the set up in local selfgovernments prevailing in many of the States as above, we direct that in the case of cooperative 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. In case the motion of no confidence is once defeated, a fresh motion shall not be introduced within another one year. A motion of no confidence shall be moved only in case there is a request from onethird of the elected members of the Board of Governors/Managing Committee of the cooperative society concerned. The motion of no confidence shall be carried in case the motion is supported by more than fifty per cent of the elected members present in the meeting."

15. The Division Bench then proceeded and held as under:-

"[36] Referring to aforesaid case law on the subject and in view of the judgment of the Hon'ble Supreme Court in the case of Vipulbhai M. Chaudhary v/s. Gujarat Cooperative Milk Marketing Federation Limited and Ors.

reported in (2015) 8 SCC 1, it is the case of the appellant that looking to the objective of 73 rd Constitutional Amendment that the stability and continuity of the Panchayat is intended and further Gujarat Panchayats Act, 1993 is enacted only to bring law of Panchayat in tune with the constitutional amendment. Unless reasonable time for prohibiting moving of no confidence motion is read into Section 56 of the Gujarat Panchayats Act, 1993, it will run contrary to the object and spirit of the constitutional amendment. It is also the case of the appellant that if composite scheme of the Pancahayat Act is looked into, it is clear that unless elected Sarpanch is

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allowed to work for reasonable time after election, it is not open to the members of the Panchayat to move no confidence motion immediately after election. It is submitted that if same is allowed, it will destroy the object and spirit of 73rd Constitutional Amendment Act, 1992.

[37] Learned Additional Advocate General appearing for the State and learned Senior Counsel Mr. D.C. Dave appearing for the respondents by placing reliance on the judgments in the case of Union of India v/s. Namit Sharma reported in (2013) 10 SCC 359 and Bharat Aluminium Company v/s. Kaiser Aluminum Technical Service Inc. reported in (2012) 9 SCC 552 have submitted that in view of clear language under section 56 of the Gujarat Panchayats Act, which is unambiguous, it is not open to interpret the provisions of Section 56 of the Gujarat Panchayats Act, but at the same time, in view of the judgment in the case of Vipulbhai M. Chaudhary v/s. Gujarat Cooperative Milk Marketing Federation Limited and Ors. reported in (2015) 8 SCC 1, provisions of the statute are to be interpreted keeping in mind object and spirit of Constitutional Amendment Act, 1992. By applying aforesaid principle, it is always open for the Courts to interpret provisions keeping in mind object and reasons of the statute and also constitutional background. We are unable to accede to submission made by learned Senior Counsel Mr.D.C. Dave that principle of reading into or reading down is to be applied only in cases where vires is challenged. Even in case, where vires is not challenged, if any provision of statute falls for interpretation, it is always open for the Court to interpret such provision having regard to object and reasons of the statute and constitutional background for such statute.

[38] In the case of Vipulbhai M. Chaudhary v/s. Gujarat Cooperative Milk Marketing Federation Limited and Ors. Reported in (2015) 8 SCC 1, the Hon'ble Supreme Court while holding that in absence of any provision, no confidence motion can be moved against elected President of the Cooperative Societies, has also issued guidelines noticing restriction for moving no confidence motion immediately after election in various States under Cooperative Societies Act, Municipal Act and Panchayat Act in the country. As a measure of guidelines, in the

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aforesaid judgment, the Hon'ble Supreme Court has held that no confidence motion cannot be moved for a period of two years from the date of election and also further held that similar attempt to move no confidence motion cannot be made for a period of one year, once it is failed. Looking at Chapters IX, IXA and IXB of the Constitution of India, having similar object and reasons, said amendments were made in the Constitution.

[39] In view of the fact that continuity and stability of Panchayati Raj Institutions is one of the objectives of Constitutional 73rd Amendment Act, 1992, if no confidence motion is moved against elected Sarpanch immediately after election, without even permitting said elected Sarpanch to work for reasonable time to discharge his / her functions, and obligation as contemplated under section 55 of the Panchayats Act, any move for removal by way of no confidence motion immediately after election will run contrary to the spirit and object behind 73rd Constitutional Amendment Act, 1992.

[40] Though the appellant is elected in the election held on 27.12.2016 by the qualified voters of Panchayat, she is sought to be removed by way of no confidence motion by the members of Panchayat barely within a period of one month from the date of declaration of election. Though no reasons are required to be mentioned for moving no confidence motion, but unless elected Sarpanch is allowed to work for reasonable time, moving no confidence motion on the allegation that members of the Panchayat have lost confidence is illegal and arbitrary. If the same is permitted, it will result in vicious circle, as much as, there is no disqualification attached once Sarpanch is removed by way of no confidence motion, unlike disqualification attached to removal as contemplated under Section 57 of the Panchayats Act. It is fairly well settled that if a person is removed by way of no confidence motion, it is neither censure motion nor punitive one and it will not attach any disqualification for future contest.

[41] Once elected candidate is removed by way of no confidence motion, resulting in vacancy, again the very same person may contest and also win the immediate

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election. Same cannot be the scheme under the provisions of the Gujarat Panchayats Act, 1993, which is enacted to bring law relating to panchayat in tune with provisions under Chapter IX of the Constitution of India.

[42] Then the next question which arises is, in absence of any restriction for a particular time under section 56 of the Act, what should be the reasonable time, within which time no confidence motion cannot be permitted, so as to read into section 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 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 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.

[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 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.

[45] We have issued aforesaid directions, in absence of any

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specific provision for prohibiting no confidence motion after declaration of election against Sarpanch and UpSarpanch under Section 56 of the Gujarat Panchayat Act, 1993 and so far as President of Taluka Panchayat under Section 70 of the Gujarat Panchayat Act, 1993. We make it clear that it is open for the competent authority to make suitable amendment in aforesaid provisions."

16. Applying the aforesaid principles, this Court in case of Narenbhai Gunvantlal Jayaswal (supra) has held as under:-

"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 reasonable time is any time which is not manifestly unreasonable under the

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circumstances. Therefore, the Division Bench considering the object of the 73rd 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."

17. The respondent has tried to distinguish the decision in case of Shivangiben on the ground of the fact that in case of Shivangiben, the motion of no confidence was moved within very short span of assuming the office, whereas in present case, a substantial period of tenure is over and only few days are left for completing the period of one year.

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18. The chronology event does not indicate that substantial period of tenure is over in fact, even one year period is not over when the motion was brought it. The relevant date and period is of the date of motion and not as on date. Learned advocate has tried to mix up by arguing that as on today substantial period of the tenure is over and such arguments are not only irrelevant, but also indication of the political frustration.

19. In the chronology of the facts, in the present case, the Court sees no reason to deviate from the view expressed by this Court in the aforesaid two decisions. There is no other grounds made out by the respondents to prevent the court from interfering with the motion of no confidence on the ground that the same was brought within period of 1(one) year from the date on which the petitioners were elected.

20. In view of aforesaid reasoning, both the petitions are allowed. The motion of confidence dated 03.03.2022 is ordered to be quashed and set aside. Rule is made absolute to the aforesaid extent. Direct Service is permitted.

(A.Y. KOGJE, J) GIRISH