State Of Gujarat Thro Secretary & 3 ­

(1) Heard Mr.Pradeep Patel, learned advocate for the petitioner, Ms.Asmita Patel, learned Assistant Government Pleader for respondent No.1­State, and Mr.H.S.Munshaw, learned advocate appearing for respondent Nos.2 to 4.

(2) RULE. Learned advocates appearing for the respective parties waive service of rule on behalf of the concerned respondents.

(3) The matter was heard at length on 05.09.2012 and this Court had passed the following order:

“1. Heard Mr.Pradeep Patel, learned counsel for the petitioner, Mr.Rajesh Chauhan, learned counsel appearing for Mr.H.S. Munshaw for respondent Nos.2 to 4 and Ms.Asmita Patel, learned A.G.P. for respondent No.1.

2. Considering the fact that the petitioner was Sarpanch and has been removed by No Confidence Motion, the matter is, as such, urgent.

3. Mr.Patel, learned counsel for the petitioner relies upon the ratio laid down by this Court in the case of Geetaben Bharatbhai Patel V/s. State of Gujarat and others reported in 2006(1) G.L.H. 91.

4. It prima facie appears that the contention raised by learned counsel Mr.Patel to the effect that the proceedings of the aforesaid motion wherein, No Confidence Motion is passed, is de­hors to the provisions of Section 56 of the Gujarat Panchayats Act, 1993.

5. However, grant of any interim relief would amount to allowing this petition and hence, notice as to interim relief, returnable on 27.09.2012 with further clarification that the matter shall be disposed of finally on the said date.

6. The respondents are directed to complete the pleadings, if any, as indicated in this order. The matter shall be taken up for final hearing at the stage of hearing of the interim relief. Direct service is permitted.”

Hence, the matter is taken up for final hearing forthwith, with consent of the learned counsel appearing for the respective parties.

(4) The petitioner by way of the present petition under Article 226 of the Constitution of India has prayed for the following reliefs:

(A) xxx xxx

(B) Be pleased to issue a Writ of Mandamus or any other appropriate Writ, Order or Direction, quashing and setting aside the entire proceedings of No Confidence Motion against the petitioner including the proceedings dated 22/3/12 held by Malaniyad Gram Panchayat removing the petitioner from the post of Sarpanch (Annexure A colly), after holding the same as arbitrary and illeagl and further be pleased to restore the petitioner to the post of Sarpanch, Malaniyad Gram Panchayat, with immediate effect.

(C) Pending admission hearing and final disposal of the Writ Petition application be pleased to stay the further operation, execution and implementation of the no confidence motion proceedings dated 22/3/12 held by Malaniyad Gram Panchayat (Annexure A colly) and be pleased to restore the petitioner to the post of Sarpanch, Malaniyad Gram Panchayat.

(D) xxx xxx

(5) The facts which can be culled out from the record of the petition are as under:

(6) The petitioner was elected as Sarpanch of Malaniyad Gram Panchayat ('the Gram Panchayat' for short), Taluka Halvad, Dist. Surendranagar in the general elections of the Gram Panchayat, which were held on 31.12.2011. It is averred in the petition that the petitioner took charge of Sarpanch of the Gram Panchayat on 21.01.2012. It appears that within a period of 29 days of the petitioner's taking over charge as sarpanch, 'no confidence motion' was proposed on 18.02.2012. The copy of the said motion was received by the petitioner on 23.02.2012. It appears that as the said motion was not in consonance with the provisions of the Gujarat Panchayats Act, 1993 ('the Act' for short), the petitioner raised objections to the same by communication dated 24.02.2012. By communication dated 27.02.2012 respondent No.2­Taluka Development Officer, Halvad also informed respondent No.3­Talati­cum­ Mantri, Malaniyad Gram Panchayat, inter alia, contending that the no confidence motion received was not in consonance with Form­A and Section 56(1) of the Act. It appears that having received such communication from respondent No.2­Taluka Development Officer, neither respondent No.2 nor respondent No.3 passed any order disposing of the aforesaid objections to the no confidence motion dated 18.02.2012. It further appears that by further communication dated 29.02.2012 six members of the panchayat again preferred no confidence motion, which was received by the petitioner on 03.03.2012. It is averred in the petition that as the said no confidence motion was not in conformity with the provisions of the Act as well as Rule 20 of the Gujarat Panchayats (Procedure) Rules, 1997, the petitioner filed objections to the same to the District Development Officer as well as to respondent No.2­Taluka Development Officer on 09.03.2012. It is further averred in the petition that even though the requisite statutory period had not elapsed from the date of service of no confidence motion, respondent No.2 passed an order dated 16.03.2012 directing to hold meeting of Gram Panchayat on 22.03.2012. Being aggrieved by the said decision the petitioner filed appeal before District Development Officer, Surendranagar, which came to be rejected on 21.03.2012 and respondent No.2 passed an order appointing Shri Baldevbhai Prabhubhai Panchasara, Extension Officer (Panchayat), as an observer of the proceedings of no confidence motion to be held on 22.03.2012 at Gram Panchayat. It it the case of the petitioner that before commencement of the meeting the petitioner raised objections, however, the meeting was conveyed and, therefore, the petitioner, including 9 other members attended the said meeting wherein no confidence motion was passed against the petitioner – 6 members voted in support of no confidence motion and 3 members, including the petitioner voted against no confidence motion.

(7) Mr.Patel, learned advocate for the petitioner, has raised contention that the meeting was held on 22.03.2012 and the proceedings of no confidence motion passed in the aforesaid meeting is not in consonance with the provisions of Section 56(3) of the Act. It was further submitted that it is a mandatory requirement under the said provisions to give an opportunity of being heard to the sarpanch or the upsarpanch, as the case may be. It was further submitted that the opportunity has to be given as per the provisions of the Act and the issue has to be debated before passing resolution. It was therefore contended that in absence of such procedure the proceedings of the meeting would render itself illegal and such procedure being mandatory, no confidence motion cannot be said to have been legally passed against the petitioner as sarpanch. It was further submitted that in fact the petitioner did make an attempt to file revision before the State Government, however, as the Secretary of the Panchayat Department has declined to accept the same, the present petition is filed. It was further contended that even the allegations, which are leveled against the petitioner in the no confidence motion, do not warrant any consideration in as much as the same were made within a period of 29 days from the date of taking over charge by the petitioner as sarpanch and the no confidence motion has been moved with a mala fide intention only to oust the petitioner as Sarpanch of the Gram Panchayat, out of personal grudge and vengeance.

(8) This Court (Coram: Smt. Abhilasha Kumari, J) on 03.04.2012 issued notice in the matter. Thereafter this Court admitted the matter on 05.09.2012 and issued notice as to interim relief and the matter was fixed for final hearing on 27.09.2012.

(9) Mr.Patel, learned advocate for the petitioner, has relied upon the judgment of this Court in the case of Geetaben Bharatbhai Patel Vs. State of Gujarat, reported in 2006 G.L.H. 91 as well as judgment rendered by this Court in the case of Thakore Bhalusangji Mansangji & Ors. Vs. State of Gujarat & Ors. in Special Civil Application No.7287 of 2009 vide order dated 17.07.2009 and it was contended that as held by this Court provisions of Section 56(3) of the Act, are held to be mandatory in nature and if the same are not followed the no confidence motion and the proceedings of the meeting would be invalid. It was therefore submitted that the petition deserves to be allowed.

(10) Per contra, Mr.H.S.Munshaw, learned advocate appearing for respondent Nos.2 to 4, has relied upon the affidavit filed by respondent No.2 and submitted that no confidence motion was passed in the meeting dated 23.02.2011. Reliance was heavily placed upon the affidavit filed by Shri Baldevbhai Prabhubhai Panchasara, Extension Officer (Panchayat), the observer of the proceedings of no confidence motion, and it was contended that the petitioner did not come forward to address the meeting on any count and the petitioner even had not asked for an opportunity to address the meeting. It is further contended that thereafter no confidence motion was put to vote and it was passed by majority as, out of in all 9 members, including the petitioner, 6 members voted in favour of no confidence motion. It was therefore submitted that the petition is meritless and the same deserves to be dismissed. Ms.Asmita Patel, learned Assistant Government Pleader, has adopted the arguments made by Mr.Munshaw, learned advocate for respondent Nos.2 to 4, and has contended that the petition is meritless and the same deserve to be dismissed. The original record of the Minutes Book of the meeting of the panchayat held on 22.03.2012 was also produced for perusal and if the same is compared with the copies which are annexed at Annexure­A (Colly.), more particularly Page 22 to 25, it appears that the same are the photocopies of the original. It may be noted that on perusal of the said Minutes (at Page 23) resolution No.1 reads as : for discussion and decision upon the no confidence motion of sarpanch of Gram Panchayat Maliyana. It is further noted in the said Minutes that the no confidence motion dated 29.02.2012 was placed before the house and the letter of the no confidence motion was read. It is found that immediately thereafter the said no confidence motion was put to vote by hands, wherein 6 members have voted against no confidence motion whereas 3 members, including the present petitioner, have voted against the same and it is further observed that in view of the 6 members i.e. majority members were in favour of the no confidence motion the said motion was passed.

(11) Section 56(3) of the Act, which provides the procedure to be followed in a case where no confidence motion is to be moved against Sarpanch or Upa­Sarpanch, reads as under:

“56 (3) Notwithstanding anything contained in this Act or the rules made thereunder a Sarpanch or, as the case may be, an Upa­Sarpanch, shall no 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.).

(12) On bare reading of the provision it is clear that the said provision, inter alia, provides that the sarpanch or the upa­sarpanch, who is facing no confidence motion shall not preside over such a meeting, but the said person shall have a right to speak or otherwise take part in the proceedings of such a meeting including the right to cast his vote.

(13) As held by this Court in the case of Geetaben Bharatbhai Patel (supra) such right is a mandatory right and in Paragraph No.11 it is observed as under:

“11. From the above recording of the statutory provisions, it can be seen that in sub­section (3)of section 56 of the said Act, it is provided that a Sarpanch or, as the case may be, an Upa­Sarpanch (who is facing a no confidence motion) shall not preside over the meeting in which such motion of no confidence is being discussed, 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. This right to speak or otherwise to take part in the proceedings during such a meeting including the right to vote is a statutorily vested right in favour of the Sarpanch or Upa­Sarpanch who is facing a no confidence motion. From the statutory provisions noted herein­above and the scheme of the said Act, it is necessary to decide whether the said provision is mandatory or directory. In other words, it is necessary to decide whether the denial of a right to a Sarpanch or an Upa­Sarpanch to speak or otherwise to take part in the proceedings of a meeting would vitiate the no confidence motion which was otherwise passed by the requisite two­third majority.”

(14) In the aforesaid judgment, considering the judgment of the Apex Court in the question of interpretation of statute this Court has further held in Paragraph Nos.15­16 as under:

“15. From the above recording of the relevant provisions of the said Act and the said Rules and in particular rules 29 to 35, it can be seen that even in the capacity of a member of the Panchayat, Sarpanch against whom no confidence motion is being conducted would have a right to participate and to speak subject, of course, to the provisions contained in rules 29 to 35 of the said Rules. Section 56(3) of the said Act not only preserves this right, but highlights the aspect that a Sarpanch, or as the case may be, an Up­Sarpanch who is facing no confidence motion though shall not preside over such a meeting, but he shall have a right to speak or otherwise to take part in the proceedings of such a meeting as also shall have a right to vote. The words “shall have a right to speak or otherwise to take part in the proceedings of such a meeting” have been used by the Legislature advisedly and unless it is found from the attending provisions of the statute that the Legislature intended that such provision should not be mandatory, it is not possible to hold that the requirement is merely directory in nature. A right to address a meeting or otherwise to take part in the proceedings including to vote are statutory rights vested in the Sarpanch or Upa­Sarpanch who is facing a no confidence motion. A no confidence motion has to be tabled and debated before the same can be put to vote. A Sarpanch whose position and reputation are at stake definitely has a right to speak at such a meeting and when denied such a right, prejudice would be caused to him or her, as the case may be. In a democracy when an elected Sarpanch or, as the case may be, an Up­Sarpanch is being sought to be removed through a motion of no confidence and when the provisions of section 56(3) of the said Act specifically provide that a Sarpanch or, as the case may be, Up­Sarpanch who is facing such a no confidence motion shall have a right to speak, it is not possible to hold that such a requirement is merely directory in nature. The Sarpanch or, as the case may be, Up­ Sarpanch, through his persuasive power or logical arguments may be able to prevail upon some of the members present at the meeting to change their mind and persuade them to oppose the no confidence motion. By denying the Sarpanch or, as the case may be, Up­ Srapanch an audience altogether, this statutory right is being violated. It is not possible to judge the prejudice that may be caused in an individual case by the denial of such a right. It is also not possible to interpret the provisions of section 56(3) of the said Act keeping in mind an individual fact situation in a given case. It is, therefore, not possible to accept the contention of the learned advocate Shri Raval for respondent No.6 that in the present case when as many as 14 out of 17 members voted in favour of no­confidence motion, no prejudice was caused to the petitioner even if she was denied the right to speak at the meeting and that eventually what matters is the opinion of two­third members of the Panchayat that no confidence motion should be adopted. What would have been the position if the petitioner was permitted to speak and participate in the said meeting is not possible to predict. Before a no confidence motion could be put to vote, the petitioner had a statutory right to address the meeting. When such a mandatory requirement of law was not followed, all consequential steps of putting the motion to vote and counting of votes and adoption of resolution would automatically fail having no effect or validity.

16. In view of the conclusion that I have reached, namely, that the requirement of section 56(3) of the said Act is mandatory in nature and not merely directory, all consequential steps from the stage of voting of no confidence motion and its adoption by the meeting would be rendered nonest and ineffective, since it is factually concluded in the earlier portion of the judgment that the petitioner was not given an opportunity to speak at the meeting or in any other manner to participate except to vote.”

(15) Similarly this Court in the case of Thakore Bhalusangji Mansangji (supra) while interpreting provisions of Section 56(3) of the Act has observed in Paragraph Nos.3­5 as under:

“3. Section 56 (3) of the Act lays down the procedure to be adopted in a case where a no confidence motion is to be moved against a Sarpanch or Upa­sarpanch. Sub­section (3) of Section 56 of the Act reads as under:

“56 (3) Notwithstanding anything contained in this Act or the rules made thereunder a Sarpanch or, as the case may be, an Upa­Sarpanch, shall no 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. A plain reading of the provision makes it clear that the said sub­section opens with a non obstante clause and overrides other provisions of the Act and rules made thereunder. The said provision stipulates that the Sarpanch or the Upa­Sarpanch against whom a no confidence motion is moved shall not preside over such a meeting, but the said person shall have a right to speak or otherwise take part in the proceedings of such a meeting including the right to cast his vote. Hence merely because respondent No.2 cast a vote against the no confidence motion and in his favour it is not possible to accept the stand of the petitioners that respondent No.2 having not addressed the house nor expressed any intention to address the house it must be presumed that respondent No.2 did not wish to speak at the meeting.

5. When one reads the provision of sub­section (3) of Section 53 of the Act it becomes clear that the person against whom no confidence motion is moved does not have a right to preside over the meeting and therefore is not in a position to conduct and control the proceedings. If that be so, it cannot be stated that if such a person wants to address the house he must express his intention and seek permission of the Chair to do so, and in the event he fails to do so, his right to address the house gets curtailed. The onus would be on the person chairing the meeting to put to the members of the house as to whether any person would like to speak on the subject matter in question. Admittedly in the facts of the present case respondent No.2 was never called upon to address the house. In the circumstances if the Revisional Authority has considered the right to speak as being a pre­condition at such a meeting, namely where a no confidence motion is moved against such a person, it is not possible to state that such an interpretation qua the provision is not correct.”

(16) Considering the contention raised by Mr.Munshaw, learned advocate for respondent Nos.2 to 4, on the basis of the affidavit filed by Shri Baldevbhai Prabhubhai Panchasara, Extension Officer (Panchayat), the observer of the proceedings of no confidence motion and upon comparing it with the Minutes of the meeting, it cannot be said that mandatory provisions of Section 56(3) of the Act are complied with. The Minutes of the said meeting do not indicate that any attempt or effort was made by the chairman of the said meeting to give an opportunity to speak to the petitioner. The minutes further do not indicate that any effort of debate on the no confidence motion has taken place in the said meeting. It only appears that the proposal was put before the house, the letter was read and straightway it was put to vote. As held by this Court in the case of Geetaben Bharatbhai Patel (supra) only because majority members have voted in favour of the no confidence motion no prejudice would be caused to the petitioner is considered in Paragraph No.15 thereof. In the instance case also this Court finds that the mandatory requirement of Section 56(3) of the Act are not followed. Mr.Munshaw, learned advocate for respondent Nos.2 to 4, is not in a position to support the averment made in the affidavit of Shri Baldevbhai Prabhubhai Panchasara, Extension Officer (Panchayat) i.e. as an observer of the proceedings of no confidence motion as nothing is there in the minutes of the meeting and, therefore, the mandatory requirement of Section 56(3) of the Act not having been followed would render all consequential steps from the stage of voting of no confidence motion and its adoption would fail, rendering it invalid.

It is necessary that the statutory provisions, which are mandatory in nature are required to be followed especially when the petitioner was democratically elected as sarpanch of the Gram Panchayat.

(17) In the result, the petition is allowed in terms of Paragraph No.20(B) of the petition. Resolution No.1 passed in the meeting of Malaniyad Gram Panchayat held on 22.03.2012 and the entire proceedings of no confidence motion are hereby quashed and set aside. Pursuant to this, Malaniyad Gram Panchayat shall have to call for fresh meeting to debate and to vote on the no confidence motion against the petitioner.

(18) Rule is made absolute to the aforesaid extent. There shall be no order as to costs.

Bhavesh* Sd/­ [R.M.CHHAYA, J ]