Gujarat High Court

Anitaben Pravinbhai Solanki vs State Of Gujarat on 17 October, 2022

Bench: Sandeep N. Bhatt

      C/SCA/14239/2022                                    ORDER DATED: 17/10/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 14239 of 2022

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                         ANITABEN PRAVINBHAI SOLANKI
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MR NAMAN K BRAHMBHATT(11307) for the Petitioner
MS JYOTI BHATT, AGP for the Respondent(s) No. 1 - State
MR HS MUNSHAW(495) for the Respondent(s) No. 2,3
MR RAINISH S SIKLIGAR(11442) for the Respondent(s) No. 4 to 9 & 11
NONE for Respondent No.10
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                    Date : 17/10/2022

                                     ORAL ORDER

1. The petitioner has mainly challenged the no

confidence motion passed on 08.07.2022.

2. Heard learned advocates for the respective

parties.

3.1 Mr. Naman Brahmbhatt, learned advocate for

the petitioner has submitted that the petitioner is a

lady, elected as a member of the Panchayat and declared

as Sarpanch on 21.12.2021 unanimously by all the

elected members. He has further submitted that the

C/SCA/14239/2022 ORDER DATED: 17/10/2022

charge is taken by the petitioner on 19.01.2022 and the

impugned communication is moved by the members of

the panchayat on 30.06.2022.

3.2 He has submitted that within a period of six

months, no confidence motion against the Sarpanch -

petitioner is moved by referring the provisions of Section

55 and 56 of the Gujarat Panchayats Act, 1993.

3.3 He has heavily relied upon the judgment of

this Court in the case of Shivangiben Chetankumar Patel versus State of Gujarat reported in 2018 (2) GLH 523, more particularly Para : 39 thereof and has

submitted that such no confidence motion could be

proposed within a span of one year irrespective of allegations against the Sarpanch.

3.4 He has submitted that this petition may be

allowed.

4.1 Mr.Munshaw, learned advocate for respondents

no.2 and 3 - Panchayat has submitted that out of nine

members, no confidence motion moved by seven members

of the panchayat on 13.06.2022 and it was submitted to

C/SCA/14239/2022 ORDER DATED: 17/10/2022

respondents no.2 and 3 by letter dated 13.06.2022.

4.2 He has further submitted that as the

petitioner failed to take appropriate decision with regard

to a date of meeting of general body of the Gram

Panchayat for consideration of no confidence motion

within fifteen days from 13.06.2022, the respondent no.3

addressed a letter to respondent no.2 on 28.06.2022 to

take appropriate decision in accordance with the

provisions of Section 56(5)(k) of the Act.

4.3 He has further submitted that thereafter,

respondent no.3 has addressed a letter to respondent

no.2 on 05.07.2022 for appointment of a Presiding Officer

for a meeting to be held on 08.07.2022 and passing of no confidence motion against the petitioner in the said

meeting and one Mr.Firoz B. Patel, Extension Officer

(Panchayat), Jambusar Taluka Panchayat was appointed

as presiding Officer vide order dated 07.07.2022.

4.4 He has also submitted that Taluati-cum-Mantri

of the Gram Panchayat addressed a letter infomring

about the proceedings of the meeting on 08.07.2022 and

passing of no confidence motion. He has submitted that

C/SCA/14239/2022 ORDER DATED: 17/10/2022

immediately, an order dated 12.07.2022 was passed to

the effect that Up-Sarpanch of the Gram Panchayat

would take over the charge of the Sarpanch in

accordance with the provisions of Section 56 of the Act

and thereupon, Up-Sarpanch - Mr.Vijaybhai K. Waghela

took over the charge of the post of Sarpanch of Gram

Panchayat on 14.07.2022.

4.5 He has submitted that in view of the above

facts, this petition may not be entertained, as the motion

of no confidence is acted upon now. He has submitted

that this petition may be dismissed.

5.1 Mr.Sikligar, learned advocate for the contesting

respondents no.4 to 11 has, by referring to his affidavit in reply, submitted that though the petitioner was a

Sarpanch, her husband was handling day-to-day affairs of

the Panchayat in place of the petitioner. He has

submitted that the husband of the petitioner was

threatening the members and also abusing the powers.

He has submitted that by putting the forge signature of

the petitioner, her husband was looking to the affairs of

the Panchayat. He has submitted that if such situation

will continue, then interest of the Panchayat will be

C/SCA/14239/2022 ORDER DATED: 17/10/2022

jeopardise.

5.2 He has relied upon the decision of Hon'ble

Apex Court in the case of Bhanumati versus State of

Uttar Pradesh reported in (2010) 7 SCR 585, more particularly Para : 72 thereof and has submitted that

the petitioner should not be allowed to misuse the office

through her husband and therefore, majority of the

members - out of nine, seven members have supported

the no confidence motion.

5.3 He has referred to the provisions of Section 55

and 57 of the Gujarat Panchayats Act, 1993 and has

submitted that this petition may be dismissed and no

interim relief may be granted to the petitioner in such facts.

6. At this stage, Ms.Bhatt, learned AGP for the

State has drawn the attention of this Court to the

decision of this Court in the case of Shivangiben Chetankumar Patel (supra), which is relied by learned advocate for the petitioner, is now referred to the Larger

Bench vide order dated 06.07.2022 recorded on Letters

Patent Appeal No.658 of 2022. She has submitted that

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the ratio laid down in the said judgment is under

further consideration and no relief, much less, interim

relief, can be granted to the petitioner.

7.1 I have heard learned advocates for the

respective parties. I have gone through the averments

made in the memo of the present petition as well as the

judgment relied by learned advocate for the petitioner in

the case of Shivangiben Chetankumar Patel (supra) and

the affidavit in reply filed by the contesting respondents,

this Court finds that no confidence motion is already

passed and acted upon and further that Up-Sarpanch has

already taken the charge as Sarpanch. This Court

further finds that there are serious allegations of forging

the signature of the petitioner by her husband and also of misbehaving with the other elected members of the

Panchayat, which can be seen from the no confidence

motion itself as out of nine members, seven members

have caste their votes against the petitioner. The

petitioner has misused the powers and authorities given

to the local body for the betterment of the public at

large.

7.2 It is fruitful to refer to the provisions of

C/SCA/14239/2022 ORDER DATED: 17/10/2022

Section 55 of the Gujarat Panchayats Act, 1993 which is

as under :

"55. Executive functions of Sarpanch and Upa- Sarpanch : (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 Upa-Sarpanch.1993

(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

C/SCA/14239/2022 ORDER DATED: 17/10/2022

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 Upa-Sarpanch 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 duties 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 sub-section (2), no money shall be withdrawn from the fund of the panchayat except with the signature of the 2 [Sarpanch or a member of the panchayat authorized in that behalf by the panchayat, and the Secretary]. "

C/SCA/14239/2022 ORDER DATED: 17/10/2022

7.3 It also prima facie appears from the record

that the petitioner herself was not discharging her duties

as a Sarpanch, but her husband was working as de-facto

as a Sarpanch.

7.4 In totality of the circumstances and the fact

that the ratio of the judgment in the case of

Shivangiben Chetankumar Patel (supra) is now before the Larger Bench for further consideration and the fact that

there is no prayer sought for by the petitioner about the

writ of prohibition as required under the law for

prohibiting the person/s who is entrusted the duty to

function as a Sarpanch (who is in the present case now