Gujarat High Court
Rameshbhai Dahyabhai Jadav vs Ahmedabad District Panchayat on 13 December, 2023
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 24304 of 2022
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RAMESHBHAI DAHYABHAI JADAV
Versus
AHMEDABAD DISTRICT PANCHAYAT
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Appearance:
MR KV SHELAT(834) for the Petitioner(s) No. 1
MR. KIRTAN H MISTRY(10012) for the Respondent(s) No. 5,6,7,8,9
MS SEJAL K MANDAVIA(436) for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2,3,4
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 13/12/2023
ORAL ORDER
1. By way of present petition, the petitioner herein has
prayed for the following reliefs:
"A. The Hon'ble Court be pleased to admit and allow the present
petition;
B. YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a
writ in the nature of mandamus or any other appropriate writ, order or
direction quashing and setting aside the proposal for no confidence motion
against petitioner dated 01.09.2022 at Annexure C and the resolution
dated 03.10.2022 of No Confidence Motion at Annexure - E, against the
petitioner and the consequent communication dated 19.10.2022 at
Annexure - F and further be pleased to delcare the action of the
respondent authority is illegal, without jurisdiction and null and void and
contrary to the provisions of section 55 and 56 of Gujarat Panchayat Act,
1993;
C. The Hon'ble Court be pleased to hold by appropriate writ, order or
direction that the petitioner continue as a Sarpanch of Sarandhi Gram
Panchayat, Taluka Dholka, Ahmedabad.
D. Pending the admission and final hearing of the petition, YOUR
LORDSHIPS may be pleased to allow the petitioner to perform the duties
as Sarpanch of Sarandhi Gram Panchayat, Taluka Dholka, Ahmedabad.
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E. Ad interim reliefs in terms of para(D) may kindly be granted;
F. Looking to the facts and circumstances of the present case any
other and further relief/s as may be granted in the interest of justice."
2. Heard Mr. K.V. Shelat, learned advocate appearing for the
petitioner, Ms. Sejal K. Mandavia, learned advocate appearing
for the respondent No.1 and Mr. Kirtan H. Mistry, learned
advocate appearing for the respondent Nos.5 to 9.
3. The brief facts leading to the filing of the present petition
read thus:
3.1 The petitioner came to be elected as Sarpanch of
Sarandhi Gram Panchayat on 21.12.2021, took charge and
started performing duties since then. On 05.07.2022, some of
the elected members of Sarandhi Gram Panchayat passed a no
confidence motion against the petitioner, which is duly
produced at Annexure - A. The said motion came to be
forwarded by the Talati-cum-Mantri to the Taluka Development
Officer by communication dated 27.07.2022 to which the
Taluka Development Officer communicated on 10.08.2022 that
the no confidence proposal/motion is not in consonance with
the prescribed form and the proposal was returned. A copy of
the said communications dated 27.07.2022 and 10.08.2022
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are duly produced at Annexure - B colly.
3.2 On 01.09.2022, out of 9 members, 7 members presented
the proposal/no confidence motion against the petitioner. The
petitioner's advocate also represented to the District
Panchayat and Taluka Development Officer by making
representation and contending that the petitioner is going to
challenge the action of the Panchayat members in moving and
passing no confidence motion; the same being illegal, void,
non-est and without jurisdiction by preferring the writ petition
before the Hon'ble High Court. A copy of the communication
dated 01.09.2022 made by the 7 members is duly produced at
Annexure - C.
3.3 On 03.10.2022, the petitioner wrote communication to
the Taluka Development Officer, Dholka, District Ahmedabad
that on the even date i.e. 03.10.2022, the resolution of no
confidence came to be passed which is duly produced at
Annexure - E.
3.4 On 19.10.2022, the Taluka Panchayat through Taluka
Development Officer passed an order that the no confidence
motion against the petitioner came to be passed on
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03.10.2022 and the petitioner seized to be the Sarpanch under
Section 56(2) of the Gujarat Panchayat Act with effect from
07.10.2022 and the Deputy Sarpanch to exercise powers of
Sarpanch till the new Sarpanch is elected. The said order dated
19.10.2022 passed by the Taluka Development Officer of
Sarandhi Taluka Gram Panchayat is duly produced at Annexure
- F.
3.5 Being aggrieved by the aforesaid action undertaken by
the respondents, the petitioner approached this Court by
preferring the Special Civil Application No.20841 of 2022.
There being several mistakes in the said petition, the said
petition came to be withdrawn on 14.10.2022 wherein, by
order dated 18.11.2022, while permitting the petition to be
withdrawn, liberty was reserved in favour of the petitioner to
file appropriate proceeding after proper correction ebfore the
Hon'ble Court or before appropriate forum. A copy of the order
dated 14.10.2022 and 18.11.2022 are duly produced at
Annexure - G colly.
3.6 In light of the aforesaid set of facts, the petitioner
approached this Court for the prayers, as referred above.
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4. Mr. K.V. Shelat, learned advocate appearing for the
petitioner, at the outset submitted that the petitioner herein
came to be elected as Sarpanch of the Sarandhi Gram
Panchayat on 21.12.2021. The resolution of no confidence
motion came to be passed against the petitioner herein on
03.10.2022. It was submitted that the aforesaid action
undertaken with respect to no confidence motion against the
petitioner herein was within a period of one year from the date
on which the petitioner came to be elected as Sarpanch of
Sarandhi Gram Panchayat on 21.12.2021.
4.1 Reliance was placed on the ratio as laid down by the
Hon'ble Division Bench in case of Shivangiben Chetankumar
Patel vs. State of Gujarat reported in [2018] 2 GLH 253, [2019]
2GLR 865 wherein, the Hon'ble Division Bench had considered
Section 56 of the Act and read into the provisions of Section 66
and proceeded to hold that once no confidence motion is
moved and defeated, the same cannot be permitted for a
period of one year from the date of such defeat.
4.2 Mr. Shelat, learned advocate, also submitted that the
decision in case of Shivangiben Chetankumar Patel (Supra), is
subject matter of challenge before the Hon'ble Apex Court
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however, no stay is granted by the Hon'ble Apex Court and the
petitioner in the said petition is permitted to contest the
election of Sarpanch. Placing reliance on the aforesaid, it was
submitted that the aforesaid decision by the Hon'ble Division
Bench in case of Shivangiben Chetankumar Patel (Supra)
reigns the field and therefore, the said decision squarely
applies to the facts of the present case wherein, the no
confidence motion is moved against the petitioner herein
within a period of one year and in view thereof, the action
undertaken against the petitioner with respect to passing of no
confidence motion is required to be quashed and set aside.
4.3 Reliance is also placed on the ratio as laid down in [2022]
4 GLR 2957 in case of Narenbhai Gunvantlal Jayaswal vs. State
of Gujarat & Ors. wherein, an identical issue with respect to the
Municipalities Act and placing reliance on the ratio laid down
by the Hon'ble Division Bench, the Court opined to consider
appropriate period of one year as a reasonable time within
which 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, 1963 from the date of declaration
of the result.
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4.4 Placing reliance on the aforesaid, it was submitted that
the prayers as prayed for in the present petition be allowed.
5. Ms. Sejal K. Mandavia, learned advocate appearing for
the respondent No.1, supported the contentions raised by Mr.
Shelat, learned advocate appearing for the petitioner and fairly
submitted that the ratio as laid down by the Hon'ble Division
Bench in case of Shivangiben Chetankumar Patel (Supra)
reigns the field.
6. Mr. Upadhyay, learned advocate appearing for the
respondent Nos.5 to 9, while the ratio laid down in Shivangiben
Chetankumar Patel (Supra) reigns the field, candidly submitted
that no confidence motion was passed within a period of one
year. Reliance was placed on the decision of the Hon'ble
Division Bench in Letters Patent Appeal No.658 of 2022 in
Special Civil Application No.5606 of 2022 wherein, the Hon'ble
Division Bench has directed the Registry to place the matter
before the Larger Bench.
7. Considering the submissions advanced by the learned
advocates appearing for the respective parties, following
undisputed facts emerge:
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(a) The petitioner came to be elected as Sarpanch of
Sarandhi Gram Panchayat on 21.12.2021.
(b) On 05.07.2022, the elected members of Sarandhi Gram
Panchayat moved a motion of no confidence. The same being
not in consonance with the prescribed form was sent back by
the Taluka Development Officer by a communication dated
10.08.2022.
(c) On 01.09.2022, out of 9 members 7 members presented
the proposal of no confidence motion against the petitioner.
(d) On 03.10.2022, the resolution of no confidence came to
be passed duly produced at Annexure - E.
(e) On 19.10.2022, the Taluka Panchayat through the TDO
passed an order that no confidence motion against the
petitioner came to be passed on 03.10.2022 and the petitioner
seized to be the Sarpanch under section 56(2) of the Act with
effect from 07.10.2022 and powers came to be relegated to
the Deputy Sarpanch till the election of Sarpanch.
8. From the aforesaid, it emerges that the no confidence
motion came to be passed against the petitioner herein within
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a period of one year i.e. on 03.10.2022 and the petitioner was
elected as Sarpanch of Sarandhi Gram Panchayat on
21.12.2021. The ratio as laid down by the Hon'ble Division
Bench in Shivangiben Chetankumar Patel (Supra) reigns the
field wherein, since the reasonable period was not prescribed
in Section 56 of the Act, the Hon'ble Division Bench read into
the said provision and held that the 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. Once, no
confidence motion is moved and defeated, same cannot be
permitted for a period of one year from the date of such
defeat. It is apposite to refer to the ratio as laid down in case of
Shivangiben Chetankumar Patel vs. State of Gujarat reported
in [2018] 2 GLH 253, [2019] 2GLR 865, wherein paragraphs 43
and 46 read thus:
"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
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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.
46. For the aforesaid reasons, the Letters Patent Appeal
No.543 of 2017 is allowed. The order dated 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."
9. It is also apposite to refer to the ratio as laid down in case
of Narenbhai Gunvantlal Jayaswal vs. State of Gujarat & Ors.
reported in [2022] 4 GLR 2957, wherein, paragraphs 19, 20
and 21 read thus:
"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
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reasonable time is any time which is not manifestly unreasonable under
the circumstances. Therefore, the Division Bench considering the object of
the 73 rd 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."
10. This Court also deem it fit to refer to the order passed by
the Hon'ble Division Bench in Letters Patent Appeal No.658 of
2022 in Special Civil Application No.5606 of 2022 wherein the
Hon'ble Division Bench has referred the issue to the Larger
Bench. It is apposite to refer to paragraph 10 of the said order,
which read thus:
"10. Hence, we are of the considered view that the judgment of
Coordinate Bench in Shivangiben Chetankumar Patel Vs. State of Gujarat
& Ors. disposed of on 09.05.2018 reported in 2018 (2) GLH 523 would be
contrary to settled principles of law and as such the said judgment having
been rendered by the Coordinate Bench, we are of the considered view
this requires consideration by a Larger Bench. Hence, we direct this issue
to be resolved by Larger Bench, particularly when this order of Division
Bench having not been stayed by the Hon'ble Apex Court in Petition(s)
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though Special Leave to Appeal (C) No(s). 14892 of 2018 is pending before
the Hon'ble Apex Court, whereunder liberty has been given to the
Councillors of Amod Municipality to move a fresh No Confidence Motion."
11. Considering the aforesaid, it is apposite to refer to the
ratio as laid down by the Hon'ble Apex Court in Special Leave
Petition (Civil) No.20054 of 2023 in case of Rajnish Kumar Rai
vs. Union of India & Ors. wherein, the Hon'ble Apex Court in
paragraph 4 of the said decision held that judicial propriety
does not permit ignoring the ratio laid down in earlier
judgment as there is no judgment/decision regarding the same
which has come out from the larger Bench. Paragraph 4 of the
said decision read thus:
"4. Learned counsel appearing for the petitioner has brought to our
notice a coordinate Bench decision of this Court in the case of Union of
India vs. Sanjiv Chaturvedi [(2023) 2 SCR 59] in which the point of law laid
down in the earlier judgment passed by this Court in the case of Alapan
Bandyopadhyay (supra) has been referred to a larger Bench. But so far as
this Bench is concerned, we do not think judicial propriety permits
ignoring the ratio laid down by the coordinate Bench in the case of Alapan
Bandyopadhyay (supra) as no decision has come as yet from the larger
Bench on the point of territorial jurisdiction of the High Court in a similar
context. If we were to take a different view, the only course open for us
would have been to refer the petition to the Hon'ble the Chief Justice for
being adjudicated by a larger Bench, as has been done in the case of
Sanjiv Chaturvedi (supra). No argument has been raised before us that
the decision in the case of Alapan Bandyopadhyay (supra) is per
incurium."
12. In light of the aforesaid, in the facts of the present case
and the ratio as discussed above, the contentions raised by Mr.
Shelat, learned advocate appearing for the petitioner, require
consideration. For the forgoing reasons, by exercising extra-
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ordinary jurisdiction under Article 226 of the Constitution of
India, the petition stands allowed. Liberty is reserved in favour
of the respondents to take appropriate action in accordance
with law.
(VAIBHAVI D. NANAVATI,J)
NEHA
