(Per : HONOURABLE MR.JUSTICE MOHINDER PAL) 1. On account of vacancy of President of Taluka Panchayat, Dharampur, District : Valsad, the District Development Officer, fixed 27.07.2011 as a date for holding the election. He appointed Prant Officer, Valsad, to preside over the meeting in absence of the Vice-President. Panchayat consisted of 21 members. There was a dispute regarding participation of two members in the election and this High Court vide two separate orders, allowed these two members to cast their votes, however, their votes were to be kept in a sealed cover, till final decision by the High Court. It is case of the petitioner that prior to the present election of President, the election of previous President Taluka Panchayat was set aside by the court as two
Janata Party i.e. party of the vice President. As their defection was illegal, the election of President was set aside giving rise to present vacancy. However, Vice-President, though, being in minority and having been elected on account of the same defected votes, continued to be in Office as there was no provision in the Act, which would render his election invalid. Hence, Vice-President was interested in postponing the election of president, as he was enjoying the powers of President as well as Vice-President.
On the given date i.e. 27.7.2011, the meeting for electing president was convened at 11:00 clock. All 21 members ( i.e.19+2 whose votes were ordered to be kept in a sealed cover) including the Deputy Collector and Sub-Divisional Officer, were present in the meeting.After voting by show of hands, members of opposite party including Vice-President, raised a dispute regarding counting of votes of two members which were ordered to be kept in a sealed cover. Taking advantage of this situation, the Vice-President along with his members, left the meeting while the petitioner and his group remained present at the venue and requested the Presiding Officer to proceed with the election process and complete the proceedings. Accordingly, Sub-Divisional Officer presided over the meeting and completed the process. The petitioner was elected as President with 10 ( plus one kept in sealed cover as this member remained present with the petitioner)votes in his favour and against none. The minutes of the meetings were recorded by the Officer, and it is annexed with the petition.
2. The petitioner, further, states that after few months of this election, District Development Officer made a reference and forwarded two communications dated 02.08.2011 and 06.08.2011 and the application dated 11.08.2011 of Arvind C. Patel by communication dated 23.08.2011 to the Development Commissioner and on the basis of these communications, the Development Commissioner, vide his order dated 06.02.2012, quashed election of the petitioner without joining the petitioner as party or affording him any opportunity to present his case. On the basis of these averments, it is prayed that the order of the respondent Commissioner was liable to be set aside and the petitioner deserved to be restored as validly and legally elected President of Taluka Panchayat.
respondent No.2 and 3. Respondent No.2 Assistant Development Commissioner in his affidavit has submitted that none of the fundamental or legal rights of the petitioner have been violated. According to him, on the date of meeting, Vice- President was present and at that time some dispute arose regarding members, whose votes were ordered to be kept in a sealed cover. The petitioner raised objection regarding this dispute before the Deputy Collector, and the Deputy Collector called the meeting at 1:30 p.m.
Gujarat Panhayats Act, 1993. It is further averred that on 27.07.2011, first meeting held by the Vice-President at 11:00 in the presence of 20
Thereafter holding of second meeting at 1:30 p.m. without following the procedure, rules and regulations and electing president was illegal and liable to be set aside. It is submitted that in the second meeting Deputy Collector has not given notice of six days, which was mandatory. He also referred to the application made by
Commissioner to decide the same under Section- 63(8) of the Gujarat Panchayats Act, 1993.
Respondent No.3-District Development Officer in his affidavit has submitted that there were two meetings and two separate minutes drawn which resulted into the issue of legality and validity of election of president. As per the provisions of Gujarat Taluka Panchayats and District Panchayats President and Vice President Election Rules, 1994, Vice-President was required to preside over the meeting and as per Rule-11, he was empowered to adjourn the meeting to any other date. It is stated that in the present case, not only the meeting was held on 27.07.2011, but the same was also presided over by the Vice-President and the same was declared adjourned by him after deliberations and discussion on the issue and minutes are also signed by the TDO, Dharampur Taluka Panchayat as its Secretary as well as Vice-President of the Taluka Panchayat, who presided over the meeting. It is submitted that later on Deputy Collector presided over the another meeting at 1:30 p.m. though the same was objected by the Taluka Development Officer, Dharampur Taluka Panchayat, as its Secretary and the petitioner herein was declared elected as President of the Taluka Panchayat and the minutes were drawn to that effect. Finally, it has been submitted that after receipt of objection from one of the members, the same were forwarded to the competent authority as per law.
4. While arguing on behalf of the petitioner Mr B.M. Mangukiya has submitted that the action of the respondents in removing the petitioner from the office of the President was unconstitutional and arbitrary. As per notice, the petitioner along with other elected members was present in the meeting, however, the Vice- President, who belongs to the opposition party deliberately raised issue regarding two votes which were ordered to be kept in a sealed cover. According to him, the petitioner as well as his voters never walked out from the hall. There was no ground for postponement of the said meeting. The group of the petitioner was consisting of 11 members, including one member whose vote was ordered to be kept in a sealed cover. Keeping in mind the total strength of 21 members, the petitioner was in majority and as such the petitioner was rightly elected as a President of the Taluka Panchayat. According to him, the business of electing President and Vice-President in the first meeting cannot be postponed and the basis on which the election of the President has been set aside, is liable to be reversed. In support of his arguments, he also put reliance upon decision in the case of “CHANDRAKANT KHAIRE Vs. DR. SHANTARAM KALE AND OTHERS”, reported in (1988) 4 SCC 577.
5. On the other hand, the learned Government Pleader, Ms Monali Bhatt while relying upon the reply and the affidavits filed by the respondent Nos.2 and 3, has submitted that once there was a confusion and the meeting has been concluded by the Vice-President, there was no reason for convening the second meeting and suo motu electing petitioner as President of the Taluka Panchayat and hence election of the petitioner was liable to be set aside. The learned AGP has also raised point regarding jurisdiction of this Court in view of the alternative remedy provided under the Act.
6. We have heard learned counsel for the parties and have also gone through affidavits and other annexures attached with the petition.
7. For disposal of this case, brief narration of facts will be necessary. Undisputed facts are that the election of Taluka Panchayat, Dharampur, District Valsad, were held on 21.10.2010. After election, first meeting was convened on 12.11.2010. During this meeting, a defection took place and two members belonging to National Congress defected and voted in favour of the candidates for Bhartiya Janata Party as a result of which President and Vice President of BJP were elected. Later on the defection was found to be bad and election of president has been set aside as president himself was one of the candidates who had defected. As a result of this background, the post of President fell vacant. Vice President though elected on account of votes by the defecting members, continued to function. It is also not in dispute that the Notice for election to the Post of President was issued on 20.07.2011 i.e. seven days in advance.
8. On the basis of given facts and in view of the arguments raised by both the sides, this case can be divided into two parts;
I. Whether the second meeting held on 27.07.2011 at 1.30 pm for electing petitioner as President, which was without notice, was valid and legal?
II. Whether the removal of the petitioner as President vides impugned order passed by the Development Commissioner could sustain the scrutiny of law and the principles of natural justice.
9. For valid election on the given date, number of the members present at the said meeting was sufficient to constitute coram as all 21 members were present. Now, the question remains whether the postponement of the meeting or walking away of the members in minority was justified? Hon'ble Supreme Court in case of Chandrakant Khare (supra) relied upon by Mr Mangukiya held as under;
“A properly convened meeting cannot be postponed. The proper course to adopt is to hold meeting as originally intended and then and there adjourn it to a more suitable date. If this course be not adopted, members will be entitled to ignore the notice of postponement and, if sufficient to form a coram, hold the meeting as originally convened and validly transact the business thereat.”
10. It will be important to note in the present case, there was no reason to postpone the meeting. If the meeting as alleged by the respondents has been postponed, no new date or place for the next meeting was decided. Under the circumstances, holding of election of President in the second session on the same day, must be held to be valid and legal. Once the meeting has commenced and on account of unruly behavior of the members of the opposite side, the meeting has been disrupted, the same cannot be held to be adjourned when the members in majority were present and have commenced the business after some time. The situation could have been different where a meeting had not commenced at all and the Notice for convening the meeting had been cancelled by a person authorized to issue the same. As in the present case, the meeting had commenced and the members in majority have elected their President, there cannot be any illegality in the manner in which the petitioner has been elected as President.
11. Now, coming to the question of removal of the President vide impugned order dated 06.02.2012, we will have to see the grounds on the basis of which the petitioner has been removed. The reasoning given by the Development Commissioner is reproduced as under;
“32. ... In the present case, the Vice President chaired the meeting and has also declared proceeding of the meeting as over. Thus, after the first meeting was over, the meeting was re-commenced by the Presiding Officer for which no separate notice was issued. In the first meeting, 21(Twenty One) members were present and thereafter, after (ten) members left the venue of meeting, the meeting was recommenced at 1330 hours which was attended by 11(eleven) members, meaning thereby, the remaining members were not informed about the meeting. The Presiding Officer and the Prant Officer has no right to resume the meeting once proceeding of the meeting is declared over. Therefore, the proceedings undertaken by the Prant Officer is undoubtedly contrary to statutory provisions.”
12. A perusal of impugned order shows that the same has been passed in a casual manner without application of mind. First of all, Notice for the second meeting was not required as the meeting was never adjourned or postponed for some future date. If, ten members left the venue of the meeting, eleven members were still there, who supported the case of the petitioner and elected him as President. Once the petitioner has been elected as President and has worked for a few months, he cannot be removed arbitrarily without affording him an opportunity of hearing and proving his case.
13. It is settled position of law that the elected official cannot be permitted to be removed unconstitutionally, without following the procedure prescribed by law and in violation of Articles 21 & 14 of the Constitution of India. The executive authorities cannot be permitted to adopt a casual approach and resort to
attempt to undermine the democratic institutions. Taluka Panchayat is considered to be one of the basic democratic units of the body politic. Thus, exercise of any power, having the effect of destroying the constitutional institutions, is dangerous to the democracy. Depriving a person of his office, even without affording him an opportunity of being heard, violates the basic principles of natural justice and fair play. An elected official has to be on a higher pedestal than a Government servant and for his removal, a more stringent procedure and standard of proof is required. He can be removed only in accordance with the provisions contained in law. Even in absence of any provision providing for protection of such an Office, the principles of natural justice cannot be ignored. The decision of executive for removal of such person must show that authority has applied its mind to the allegations made and the explanation furnished by the elected officer-bearer. In case, where a person is found guilty and removed without affording him an opportunity of being heard, violates the principles of natural justice as such removal takes away not only his valuable statutory right but, also of the electoral college which has elected him. In view of aforesaid discussion, the arguments of Ld. AGP are meaningless and without any basis.. Both the above framed Questions are decided in favour of the petitioner.
14. In view of the foregoing discussion, the impugned order dated 06.02.2012 passed by the Development Commissioner without any valid ground or basis and against setteled principles of natural justice and law, is set aside by holding that the petitioner is duly elected President of the Dharampur Taluka Panchayat. This order shall be complied forthwith.
15. Before parting with this judgment, it will be necessary to point out that the action of the Development Commissioner and other officials in surreptitiously removing the petitioner was unconstitutional and requires to be deprecated.
The officers are expected to act fairly, without ill-will or malice, in fact or in law. If an act is done wrongfully and willfully, without reasonable or valid cause, the same has to be disregarded inasmuch as it adversely affects the legal rights and violates Article-14 of the Constitution.
(D.H. WAGHELA, J.)
(MOHINDER PAL, J.)
Umesh