IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 8551 of 1999 For Approval and Signature: Hon'ble MR.JUSTICE J.M.PANCHAL and MR.JUSTICE A.L.DAVE ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? Yes 2. To be referred to the Reporter or not? Yes : 3. Whether Their Lordships wish to see the fair copy : YES of the judgement? No 4. Whether this case involves a substantial question : YES of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? No 5. Whether it is to be circulated to the Civil Judge? No : -------------------------------------------------------------- MANUBHAI F PATEL Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR MEHUL SHARAD SHAH for Petitioner MR K.G.SHETH, AGP for Respondent no.1. NR MC BHATT for MR MP PRAJAPATI for Respondent No. 3 -------------------------------------------------------------- CORAM : MR.JUSTICE J.M.PANCHAL and MR.JUSTICE A.L.DAVE Date of decision: 29/10/1999 ORAL JUDGEMENT (Per : J.M.Panchal, J.) Learned counsel for the petitioner, on instructions, seeks permission to delete name of respondent no.2 from the petition as the presence of respondent no.2 is not necessary, in order to resolve dispute raised in the petition. Permission as prayed for is granted. Name of the respondent no.2 stands deleted from the petition. 2. Rule. Mr. K.G.Sheth, learned Assistant Government Pleader waives service of notice of rule on behalf of respondent no.1. Mr. M.P.Prajapati, learned counsel waives service of notice of rule on behalf of respondent no.3. Having regard to the facts of the case and in view of joint request made by the learned counsel for the parties, the petition is taken up for final hearing today. 3. By means of filing this petition under Art. 226 of the Constitution, the petitioner, who is Upa-Sarpanch of Thaltej Gram Panchayat has prayed to issue a writ of mandamus or any other appropriate writ, order or direction to quash and set aside resolution dated October 13, 1999 by which no confidence motion is passed against the petitioner. 4. The petitioner was elected as Upa-Sarpanch by the members of Thaltej Gram Panchayat, Tal. Dascroi, Dist. Ahmedabad. A no confidence motion was moved against the petitioner in the prescribed form by members of Panchayat on September 29, 1999. It is not in dispute that the notice by which motion of no confidence was moved against the petitioner was supported by one half of the total number of members of Panchayat. A copy of the notice of no confidence motion is produced by the petitioner at Annexure : I to the petition. On receipt of the notice, the Talati-cum-Mantri of Thaltej Gram Panchayat issued intimation dt. October 20, 1999 to the members of the Panchayat informing them that the meeting of the Panchayat would be held on October 27, 1999 to consider no confidence motion moved against the petitioner. A copy of the said intimation is produced by the petitioner at Annexure : J to the petition. Thereafter, the meeting of the Panchayat was held on October 27, 1999. The meeting was conducted under the Chairmanship of Mr. Viththalbhai G. Prajapati, - a Member of the Panchayat. Some objections were lodged to the participation of the Sarpanch in the meeting, but the objections were over-ruled by the Chairman of the Meeting. Thereafter no confidence motion was put to vote and 16 members cast their votes in favour of no confidence motion. The Chairman of the Meeting, therefore, passed a resolution mentioning that no confidence motion moved against the petitioner is carried by majority of not less than two-thirds of the total number of members of the Panchayat. The resolution passed at the meeting which was held on October 27, 1999, is produced by the petitioner at Annexure: L to the petition. The no confidence motion carried against the petitioner is challenged by him in the petition on several grounds. However, at the time of arguments, the challenge is confined only to one ground namely that the motion was not carried by a majority of not less than two-thirds of the total number of the member of the Panchayat. Therefore, it is not necessary for us to deal with other grounds mentioned in the petition. 5. We may state that the respondent no.3 has lodged Caveat and has also filed an affidavit-in-reply controverting averments made in the petition, but as the question of interpretation of Sec.56(2) of the Gujarat Panchayats Act, 1993 is canvassed by the learned counsel for the parties, it is not necessary to refer to said reply in detail while deciding the petition. 6. Mr. Mehul S. Shah, learned counsel for the petitioner submitted that the total strength of the members of Thaltej Gram Panchayat is 26 and out of 26 members, one member remained absent, whereas another member was out of Station and yet another member had died as a result of which, resolution cannot be said to have been passed with two-thirds of total strength of the members of the Panchayat, and therefore, the same should be set aside. What was stressed was that only 16 members of the Panchayat had cast their votes in favour of no confidence motion but not two-thirds of total number of members of the Panchayat as contemplated by Sec.56(2) of the Act, and therefore, the relief claimed in the petition should be granted. Learned counsel for the petitioner referred to different expressions appearing in different sections of the Act relating to no-confidence motion which may be moved against President and Vice-President of Taluka Panchayats as well as District Panchayats and submitted that in view of different expressions employed by the legislature at different places, Sec. 56(2) of the Gujarat Panchayats Act ( "the Act" for short) must be construed to mean that no confidence motion should be carried by two-thirds of whole number of the members of Panchayat. Learned counsel for the petitioner brought to the notice of the Court judgment rendered by the learned Single Judge in the case of RAMBHAI JOITARAM PATEL vs. STATE OF GUJARAT, 1997 (1) G.L.R. 339 and submitted that interpretation put by the learned Single Judge on Sec.56(2) of the Act to mean that a motion of no confidence should be carried by majority of not less than two-thirds of total number of members of the Panchayat who constitute the Panchayat, is not only reasonable but in consonance with the object of the provisions of Sec.56(2) of the Act, and therefore, the same should be accepted by the Court. Learned counsel for the petitioner also pleaded that similar view is taken by other High Courts as is evident from the decisions rendered in the cases of MANGALA PRASAD JAISWAL Vs. DISTRICT MAGISTRATE AND OTHERS, AIR 1971 Allahabad, 77 and SHYAMAPADA GANGULY Vs. ABANI MOHAN MUKHERJEE, AIR 1951 Calcutta 420, and therefore, the petition should be accepted. 7. Mr. M.C.Bhatt, learned counsel for respondent no.3 pleaded that the expression "total number of members of the Panchayat" appearing in Sec.56(2) of the Act should be construed to mean, those members who are present and entitled to vote at the meeting and not total number of the members who constitute the Panchayat. Learned counsel for the respondent no.3 pointed out to the court that at the meeting which was held on October 27, 1999, 23 members were present and as 16 members have voted in favour of no confidence motion moved against the petitioner, the competent authority was justified in concluding that no confidence motion was carried by two-thirds of total members of the Panchayat. In support of his submissions, learned counsel placed reliance on the decision rendered by learned Single Judge of this Court in the case of GOPALDAS BAKUBHAI RANA Vs. LUNAVADA NAGAR PANCHAYAT AND OTHERS, 1985(2) G.L.R. 1047. 8. We have heard learned counsel for the parties at length. In order to resolve the question raised in the petition, it would be necessary to notice certain relevant provisions of the Gujarat Panchayats Act, 1993 relating to Village Panchayats. Sec.9 of the Act provides for constitution of Village Panchayats. As per sub-section (1) of Section 9, a village panchayat shall consist of such number of members as provided in sub-section (4). Sub-Section 4 provides that a village panchayat of a village having population not exceeding three thousand shall consist of seven members and in case of a village panchayat where the population of the village exceeds three thousand, then for every one thousand or part thereof in excess of three thousand, the said number of seven shall be increased by two. It is not in dispute that the whole number of members of Thaltej Gram Panchayat is 26. Sec.51 of the Act provides that on the constitution of a village panchayat or on its reconstitution under section 13 or under any other provision of this Act, there shall be called the first meeting thereof for the election of Upa-Sarpanch from amongst the members of the panchayat. Similar provision is also made for calling the meeting of the members of the Panchayat for the purpose of election of Sarpanch. Sec.55 of the Act specifies as to what are the executive functions of Sarpanch or Upa-Sarpanch. Sec.56 deals with a motion of no-confidence which may be moved against Sarpanch or Upa-Sarpanch As question of interpretation of Sec.56(2) of the Act is involved in the petition, it would be advantageous to reproduce Sec.56 of the Act which is as under:- SECTION 56 : Motion of no-confidence.- (1) Any member who intends of move a motion of no confidence against the Sarpanch or the Upa-Sarpanch may give notice thereof in the prescribed form to the panchayat concerned. If the notice is supported by one half of the total number of members of the panchayat concerned, the motion may be moved. (2) Where in the case of the Sarpanch or, as the case may be, the Upa-Sarpanch, the motion is carried by a majority of not less than two-thirds of the total number of the members of the panchayat, the Sarpanch or, as the case may be, the Upa-Sarpanch, shall cease to hold office after a period of three days from the date on which the motion is carried unless he has resigned and the resignation has become effective earlier; and thereupon the office held by him shall be deemed to have become vacant. (3) Notwithstanding anything contained in this Act or the rules made thereunder a Sarpanch or, as the case may be, an Upa-Sarpanch, shall not 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) When the offices of both the Sarpanch and Upa-Sarpanch become vacant simultaneously, such officer as the Taluka Development Officer may authorise in this behalf shall, pending the election of the Sarpanch, exercise all the powers and perform all the functions and duties of Sarpanch but he shall not have the right to vote in any meetings of the panchayat. (5)(a) Notwithstanding anything contained in section 91 or 95 a meeting of the panchayat for dealing with a motion of no confidence with a motion of no confidence under this section shall be called within a period of fifteen days from the date on which the notice of such motion is received by the panchayat; (b) If the Sarpanch fails to call such meeting, the Secretary of the panchayat shall forthwith make a report thereof to the competent authority and thereupon the competent authority shall call a meeting of the panchayat within a period of fifteen days from the date of the receipt of the report. Chapter V of the Gujarat Panchayats Act, 1993 makes provisions for Conduct of business, Administrative Powers and Duties, Property and Fund, Officers and Servants, Budget Estimates and Audit of the Accounts etc. of Panchayats. In Part I of Chapter V provisions relating to Village Panchayats are made. The relevant provisions are as under:- Section 96 : Questions to be decided by majority of votes.All questions before a meeting of a panchayat or committee thereof or of a gram sabha shall be decided by a majority votes of the members present and unless otherwise provided in this Act, the presiding officer of the meeting shall have a second or casting vote in all cases of equality of votes: Provided that such circumstances and subject to conditions as may be prescribed, a decision on any question before a panchayat or committee thereof may be taken by circulating the propositions therefor for the vote of members. Section 97 : Modification or cancellation of resolutions.- No resolution of a panchayat shall be modified, amended, varied or cancelled by a panchayat within a period of three months from the date of the passing thereof, except by a resolution supported by two-thirds of the whole number of members of such panchayat. It may be mentioned that Sec.70 deals with motion of no confidence which may be moved against the President or Vice-President of Taluka Panchayats, whereas Sec.84 of the Act deals with motion of no confidence to be moved against the President or Vice-President of District Panchayats. As those provisions have been pressed into service by the learned counsel for the petitioner, it would be advantageous to reproduce the same. They are as follows : Section 70 : Motion of no confidence - (1) Any member who intends to move a motion of no confidence against the President or Vice-President may give a notice thereof in the prescribed form to the panchayat. If the notice is supported by such number of members as may be prescribed, the motion may be moved. (2) If the motion is carried by a majority of not less than two -thirds of the total number of the then members of the panchayat, the President or the Vice-President, as the case may be, shall cease to hold office after a period of three days from the date on which the motion is carried, unless he has resigned earlier, and thereupon the office held by such President or Vice-President shall be deemed to be vacant. (3) Notwithstanding anything contained in this Act or the rules made thereunder a President or Vice-President shall not 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 proceeding of such a meeting (including the right to vote). (4)(a) Notwithstanding anything contained in section 122, a meeting of the panchayat for dealing with a motion of no confidence under this section shall be called within a period of fiteen days from the date on which a notice of such motion is received by the panchayat. (b) If the President of the panchayat fails to call such meeting, the Secretary of the panchayat shall make a report thereof to the competent authority and thereupon the competent authority shall call a meeting of the panchayat within a period of fiteen days from the date of the receipt of the report. SECTION 84 : Motion of No Confidence.- (1) Any member who intends to move a motion of no confidence against the President or Vice-President may give notice thereof in the prescribed form to the panchayat. If the notice is supported by such number of members as may be prescribed, the motion may be moved. (2) If the motion is carried by a majority of not less than two-thirds of the total number of the then members of the panchayat, the President or Vice-President, as the case may be, shall cease to hold office, after a period of three days from the date on which the motion was carried unless he has resigned earlier; and thereupon the office held by such President or Vice-President shall be deemed to be vacant. (3) Notwithstanding anything contained in this Act or the rules made thereunder, a President or Vice-President shall not 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) Notwithstanding anything contained in Section 144, a meeting of the panchayat for dealing with a motion of no confidence under this section shall be called within a period of fifteen days from the date on which a notice of such motion is received by the Panchayat. (b) If the President of the panchayat fails to call such meeting, the Secretary of the panchayat shall make a report thereof to the competent authority and thereupon the competent authority shall call a meeting of the panchayat within a period of fifteen days from the date of the receipt of the report. 9. Before adverting to submissions advanced at the Bar and decisions cited by learned Counsel for the parties,it would be important to notice certain well settled canons of interpretation of statutes. The primary and foremost task of a Court in interpreting a statute, is to ascertain the intention of the legislature, actual or imputed. Having ascertained the intention, theCourt must then strive to so interpret the statute as to promote and advance the object and purpose of the enactment. If two constructions are possible upon the language of the statue, the Court must choose the one which is consistent with good sense and fairness, and eschew the other which makes its operation unduly oppressive, unjust or unreasonable or which would lead to strange, inconsistent results or otherwise introduce an element of bewildering uncertainty and practical inconvenience in the working of the statute. For this purpose, where necessary, the Court may even depart from the rule that plain words should be interpreted according to their plain meaning. There need not be meek and mute submissions to the plainness of the language. To avoid patent injustice, anomaly or absurdity, the Court would well be justified in departing from the so-called golden rule of construction so as to give effect to the object and purpose of the enactment by suplementing the written word if necessary. Though normally it is not permissible to read words in a statute which are not there, but, "where the alternative lies between either supplying by implication words which appear to have been accidently omitted or adopting a construction which deprives certain existing words of all meaning, it is permissible to supply the words." Having regard to the context in which a provision appears and the object of statute in which the said provision is enacted, the Court should construe it in a harmonious way to make it meaningful. An attempt must always be made so as to reconcile the relevant provisions as to advance the remedy intended by the statute. Having regard to the abovereferred to salutory principles of interpretation of statutes,we will now proceed to ascertain intention of the legislature in enacting section 56(2) of the Act. Section 55 of the Act defines the executive functions of Sarpanch or Upa-sarpanch. As per sub-section (1) of Section 55 of the Act, the executive power, for the purpose of carrying out the provisions of this Act and the resolutions passed by a Village Panchayat vests in the Sarpanch. The Sarpanch is directly responsible for the due fulfilment of the duties imposed upon the Panchayat by or under the Act. In the absence of the Sarpanch, his powers and duties have to be exercised and performed by the Upa-Sarpanch. It is an admitted position that in the case of Thaltej Gram Panchayat, the Division Bench vide order dated May 10, 1999 passed in Letters Patent Appeal No. 631 of 1999, has restrained the Sarpanch from conducting the proceedings as Sarpanch and, therefore, the present petitioner, who is Upa-Sarpanch has exercised and performed, powers and duties of the Sarpanch. Sub-section (2) of Section 55, enumerates powers and duties of bothSarpanch and Upa-sarpanch, without prejudice to the generality of provisions of sub-section(1) of Section 55. A bare look at sub-section (2) of Section 55 makes it manifest that the Sarpanch is empowered to operate on the fund of Panchayat and make payment, issue cheque etc. He is responsible for the safe custody of the fund of the panchayat and has to exercise supervision and control over the acts done as wellas actions taken by all officers and servants of the Panchayat. In the light of executive functions of Sarpanch and Upa-sarpanch as enumerated in Section 55 of the Act, Section 56 which deals with motion of no-confidence against the Sarpanch or Upa-sarpanch, has to be viewed and interpreted. The members of the Panchayat are supposed to be vigilant and when any one of them notices, financial irregularities or lapse in discharge of duties on the part of either Sarpanch or Up-sarpanch, he is entitled to give notice of no-confidence to the Panchayat and if noticeis supported by one half of the total number of members of the Panchayat, the motion has to be moved. Sub-section (2) of section 56 provides that when the motion is carried by a majority of not less than two-thirds of the total number of the members of the Panchayat, the Sarpanch ceases to hold office. Thus, it becomes evident that theobject and intent of section 56 is to enable themembers of the Panchayat to bring no-confidence motion against Sarpanch or Upa-Sarpanch and bring his term to an end as such if he has been guilty of misconduct in the discharge of his duties or of any disgraceful conduct or abuses his powers or makes persistent default in the performance of his duties and functions under the Act or has become incapable of performing his duties and functions under the Act. Now the powers and functions of President and Vide-President of Taluka Panchayats are enumerated in section 69 where as those of President and Vice-President of District Panchayats are enumerated in section 83 of the Act. In the case of President and Vice-President of Taluka Panchayats and District Panchayats also, similar enabling provisions have been enacted by the legislature for motion of no-confidence against them by the members of the Panchayat concerned. Those provisions are to be found in sections 70 and 84 of the Act. The object underlying in enacting sections 56, 70 and 84 ofthe Act is one and the same viz. to enable the members of Panchayat concerned to remove errant and erring Sarpanch, Upa-sarpanch, President or Vice-President of the Panchayat concerned. Now when the legislature has provided that motion of no-confidence can be carried against President or Vice-President of Taluka Panchayats or District Panchayats by a majorityof two-thirds of the total number of the then members of Panchayat concerned, it would be unreasonable and unfair to attribute a different intention to the legislature by holding that the legislature intended that in case of Sarpanch or Upa-sarpanch of a village panchayat, motion of no-confidence should be carried by a majority of two-thirds of the whole number of the members of such panchayat, more particularly when underlying object of enacting the three sections is found to be one and the same. Such an interpretation would not only render section 56 of the Act unworkable and cause practical inconvenience, but would also give an upper hand and undue advantage to Sarpanch or Upa-sarpanch of a village panchayat in comparison to President or Vice-President of Taluka Panchayats and District Panchayats, which is not intended at all. The word 'Panchayat' is defined to mean a village panchayat, taluka panchayat and district panchayat. Section 96 of the Act deals with manner in which questions should be decided by a panchayat at its meeting and provides that all questions before a meeting of the panchayat should be decided by a majority of votes of the members present. The only change mode in case of motion of no-confidence is that such motion should be carried by majority of two-thirds of the members and not by