SCA/12098/2004 1/33 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 12098 of 2004 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ============================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ============================================================== GEETABEN BHARATBHAI PATEL - Petitioner(s) Versus STATE OF GUJARAT & 5 - Respondent(s) ============================================================== Appearance : MR MEHUL SHARAD SHAH for Petitioner(s) : 1, MR SIRAJ GORI, AGP for Respondent(s) : 1, MR HS MUNSHAW for Respondent(s) : 2, RULE SERVED for Respondent(s) : 3 - 5. MR AM RAVAL for Respondent(s) : 6, ================================================================== CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 23/11/2005 ORAL JUDGMENT In the present petition, the petitioner who was an elected Sarpanch of Bechar-Becharaji Gram Panchayat has challenged the resolution of no confidence motion passed SCA/12098/2004 2/33 JUDGMENT against her on 3rd November 2003. The petitioner has also challenged the order dated 15.9.2004 passed by the Joint Secretary, Panchayat, Rural Housing and Rural Development Department, Government of Gujarat, by which the revision application filed by respondent No.6 against the order passed by the Appeal Committee of the District Panchayat, Mehsana was allowed. 2. Short facts leading to the present petition can be noted at the outset. 2.1 The petitioner was an elected Sarpanch of Bechar-Becharaji Gram Panchayat (hereinafter to be referred to as “the Gram Panchayat”), election for which was conducted on 7th April 2002. The result of the election was declared on 10th April 2002 and the petitioner assumed office of the Sarpanch of the Gram Panchayat on 1st May 2002. A notice of no confidence motion was issued by some of the members of the Panchayat on 6.10.2003. In the said notice which was jointly signed by several members of the Gram Panchayat, it was stated that since the administration of the Gram Panchayat is not being properly conducted, the members wish to bring in a motion of no confidence against SCA/12098/2004 3/33 JUDGMENT Sarpanch Smt.Geetaben Bharatbhai Patel. The Talati-cum- Mantri upon receipt of the notice of no confidence motion dated 6.10.2003 conveyed to the petitioner about such a proposal asking her to call a meeting of the members of the Panchayat within 15 days. Accordingly, a Special General Meeting was scheduled on 3rd November, 2003 to transact the business of proposal of no confidence motion against the petitioner. On 3.11.2003, the meeting was convened at the office of the Gram Panchayat wherein 17 members of the Panchayat remained present. It is the case of the petitioner that during the meeting without affording an opportunity to the petitioner to speak at the meeting, the Chairman of the meeting i.e. Up-Sarpanch asked the members who were present to indicate their vote by raising their hands. The petitioner opposed the procedure and sought permission to speak at the meeting. She was, however, denied the opportunity to address the members. Eventually, voting took place wherein 14 members cast their votes in favour of no confidence motion and 2 members voted against the motion. It may be noted that the Panchayat comprises of 17 members. 2.2 The petitioner challenged the proceedings of SCA/12098/2004 4/33 JUDGMENT the meeting dated 3rd November 2003 before this Court by filing Special Civil Application No.15636 of 2003. This Court after issuance of notice to the respondents disposed of the petition on 17th February 2004. In the said order dated 17.2.2004, the learned Judge of this Court noted the rival contentions with respect to the conflicting averments regarding the opportunity being given to the petitioner to speak at the Special General Meeting on 3rd November 2003 and to address the members present. The learned single Judge observed in para 9 of the said order that disputed questions of fact arise in the petition. The question which has to be decided is whether the petitioner was permitted to exercise the right of addressing the members of the Panchayat when the no confidence motion was being discussed. It was observed that unless the said disputed question of fact is decided, the petition cannot be decided and ordinarily disputed questions of fact are not being entertained by this Court. The learned Judge finding that the appeal is maintainable against the resolution passed by the Panchayat relegated the petitioner to appellate remedy and provided that if appeal is filed within 15 days from the date of the order, the appeal shall be entertained on merits and disposed of within a reasonable period of SCA/12098/2004 5/33 JUDGMENT time. 2.3 The petitioner accordingly preferred an appeal before the Appeal Committee of the District Panchayat, Mehsana. The Appeal Committee considered the rival submissions, examined the material on record and came to the conclusion that the petitioner ought to have been given an opportunity of presenting her case and only thereafter decision should have been taken. The Appeal Committee, therefore, allowed the appeal of the petitioner partially. The resolution of the Gram Panchayat dated 3rd November 2003 was set aside. It was further directed that a fresh meeting be convened in which after hearing the petitioner, through fresh voting decision should be taken. 2.4 Respondent No.6 who was the Up-sarpanch of the Gram Panchayat preferred a revision application before the State Government against the order passed by the Appeal Committee. The State Government allowed the revision application filed by respondent No.6 and the order of the Appeal Committee was set aside. Resolution No.42 dated 3rd November 2003 was restored and effectively the petitioner was ousted from the position of Sarpanch SCA/12098/2004 6/33 JUDGMENT through the no confidence motion. The petitioner has challenged the resolution through which the no confidence motion was passed as well as the order passed by the State Government by which the order of the Appeal Committee was set aside and resolution dated 3.11.2003 was revived. 3. Learned advocate Shri Shah appearing for the petitioner raised three main contentions. 3.1 Firstly, it was contended that the revision application was not maintainable against the order passed by the Appeal Committee. He contended that the appeal itself was not maintainable and therefore the State Government ought not to have entertained the revision application filed by respondent No.6. 3.2 It was further contended that the petitioner was not allowed to address the meeting held on 3rd November 2003 which resulted into miscarriage of justice. He contended that the Appeal Committee has in terms come to the conclusion that the petitioner was not given an opportunity to address the meeting. He submitted that the State Government has not decided this question and SCA/12098/2004 7/33 JUDGMENT has erred in setting aside the order passed by the Appellate Committee. 3.3 He further submitted that to address the meeting convened to discuss and to vote on the no confidence motion is the statutory right of the petitioner. He submitted that the petitioner was an elected Sarpanch of the Gram Panchayat. When the issue of no confidence against her was being debated and voted upon by the members, it was necessary that the petitioner should have been permitted to put forth her case before the Panchayat. Reliance was placed in this regard on an interim order passed by the learned single Judge of this Court on 21.9.99 in Special Civil Application No.7159 of 1999. 4. On the other hand, learned advocate Shri Raval appearing for respondent No.6 submitted that the petition should be rejected. He contended that the petitioner cannot question the maintainability of the revision application when he himself filed the appeal as directed by this Court. It is now not open for the petitioner to urge that the appeal itself was not maintainable. Learned advocate Shri Raval further SCA/12098/2004 8/33 JUDGMENT submitted that out of 17 members of the Panchayat, as many as 14 members have voted against the petitioner and by overwhelming majority, the Panchayat had indicated loss of confidence in the petitioner. He, therefore, submitted that in a democratic process, the petitioner cannot be permitted to continue to discharge her duties as Sarpanch. He contended that the petitioner does not have a vested right to address the meeting before a no confidence motion can be put to vote. He further submitted that it is true that the State Government has not decided the question whether the petitioner was permitted to address the meeting or not, however, even if the petitioner was not given such an opportunity, the same would not vitiate the proceedings of the meeting held on 3rd November 2003. 5. Learned AGP Mr.Gori appearing for the State Government supported the order under challenge. He submitted that the order calls for no interference and the same has been passed after taking into account the material on record. 6. From the above discussion, it can be seen that this Court had relegated the petitioner to the remedy of SCA/12098/2004 9/33 JUDGMENT appeal primarily on the ground that the question whether the petitioner was allowed to address the meeting or not is a disputed question of fact which can be more conveniently examined by the alternative forum. The Appeal Committee has come to the conclusion that no opportunity was given to the petitioner to address the meeting. This was one of the main grounds which prompted the Appeal Committee to allow the appeal of the petitioner and direct convening of a fresh meeting to discuss the no confidence motion. Respondent No.6 petitioned against the appellate order of the Appeal Committee before the State Government. The State Government allowed the revision application without deciding the vital question whether the petitioner was in fact granted an opportunity to address the meeting and to speak. I had, at the outset, therefore, offered to the learned advocates appearing for the parties whether the proceedings should be remanded to the State Government for fresh consideration. Learned advocate Shri Raval, however, submitted that remanding the proceedings would prolong the issue and the Court may proceed on the basis that the finding of the Appeal Committee on the question of opportunity not being given to the petitioner to address the meeting has achieved SCA/12098/2004 10/33 JUDGMENT finality and that there is no decision of the State Government on this aspect of the matter. In view of this suggestion and concession, I have heard the learned advocates at considerable length about the legal issues arising. 7. Thus having achieved clarity about the factual controversy whether the petitioner was allowed to address the meeting on 3rd November 2003 or not, I would like to proceed to consider the legal aspects of the matter. In other words, it would emerge that the petitioner was not given an opportunity to address the meeting of 3rd November 2003. This Court therefore would have to consider as to what would be the legal fall out of such a situation. 8. Before getting down to decide the effect of an opportunity being denied to the petitioner to address the meeting, I would like to deal with and dispose of the contention raised by the learned advocate for the petitioner that the revision application filed by respondent No.6 before the State Government was not maintainable. It was urged by the learned advocate for the petitioner that the appeal itself was not SCA/12098/2004 11/33 JUDGMENT maintainable against the resolution dated 3rd November 2003. He therefore contended that when the appeal was not maintainable before the Appeal Committee, no further revision would be maintainable and on this ground itself the order passed by the State Government should be quashed. I am afraid, such a contention cannot be upheld. This Court by an order dated 17.2.2004 passed in Special Civil Application No.15636 of 2003 filed by the present petitioner held that appeal would be maintainable against the resolution passed by the Panchayat. The petitioner has not challenged this finding arrived at by the learned single Judge and in fact availed of the remedy of appeal. Not only the petitioner filed appeal, but also succeeded substantially in the said appeal filed before the Appeal Committee of the District Panchayat. It, therefore, does not lie in the mouth of the petitioner to contend that the revision application was not maintainable since the appeal itself was not maintainable under the law. 9. Reverting to the question of legal implication of the petitioner being denied the opportunity of addressing the meeting which was held on 3rd November, 2003, it would be necessary to note some of the statutory SCA/12098/2004 12/33 JUDGMENT provisions relevant for the above purpose. 10. Article 243E of the Constitution provides for the duration of Panchayats and provides, inter alia, that every Panchayat, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting and no longer. 10.1 Section 9 of the Gujarat Panchayats Act, 1993 (hereinafter to be referred to as “the said Act”) provides for the constitution of village panchayats. Clause (a) of sub-section (3) of section 9 of the said Act provides that a village panchayat shall have a Sarpanch and an Upa-Sarpanch. Clause (b) of sub-section (3) of section 9 provides that the Sarpanch shall be elected by ballot by the qualified voters of the village from amongst themselves. Clause (c) of sub-section (3) section 9 provides that Upa-Sarpanch shall be elected by the members of the village panchayat from amongst themselves. 10.2 Section 51 of the said Act, inter alia, provides that on the constitution of a village panchayat SCA/12098/2004 13/33 JUDGMENT or on its reconstitution under section 13 or under any other provision of the Act, there shall be called the first meeting of the Panchayat for the election of Up- Sarpanch from amongst the members of the panchayat. Section 53 of the said Act provides that save as otherwise provided in the Act, the term of office of the members of a village Panchayat and the Sarpanch and Upa- Sarpanch of a village panchayat shall be co-extensive with the duration of the panchayat. Section 55 of the said Act provides for executive functions of Sarpanch or Upa-Sarpanch. Sub-section (2) of section 55 in particular provides that the Sarpanch shall preside over and regulate the meetings of the Panchayat. 10.3 Section 56 of the said Act provides for motion of no confidence. Sub-section (1) of section 56 provides that any member who intends to move a motion of no confidence against the Sarpanch or Upa-Sarpanch may give notice thereof in the prescribed form to the Panchayat concerned and if the notice is supported by one half of the total number of members of the panchayat concerned, the motion may be moved. Sub-section (2) of section 56 provides that where a motion is carried against the Sarpanch or, as the case may be, the Upa-Sarpanch by the SCA/12098/2004 14/33 JUDGMENT 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. Sub- section (3) of section 56 provides that notwithstanding anything contained in the Act or the Rules made thereunder, a Sarpanch or as the case may be, Up- 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). Sub-section (5) of section 56 provides that notwithstanding anything contained in section 91 or 95 a meeting of the panchayat for dealing with a motion of no confidence shall be called within a period of fifteen days from the date on which the notice of such motion is received by the Panchayat and if the Sarpanch fails to call such a meeting, the Secretary of the Panchayat shall forthwith make a report thereof to the competent authority and the competent authority shall call a meeting of the panchayat within fifteen days from the date of receipt of the report. Section 56 of the said SCA/12098/2004 15/33 JUDGMENT Act reads as follows:- “56. Motion of no-confidence. (1) Any member who intends to 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 member 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 the majority of not less than two-thirds of the total number of the members of the panchayat, the Sarpanch, 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 SCA/12098/2004 16/33 JUDGMENT 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 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 the competent authority shall call a meeting of the panchayat within a period of fifteen days from the date of the receipts of the report.” 10.4 Rule 20 of the Gujarat Panchayats (Procedure Rules) 1997 (hereinafter to be referred to as “the said Rules”) provides for a notice of no confidence motion. Rule 20 of the said Rules reads as follows: “20. Notice of no confidence motion. (1) Any member of a panchayat who desires to move a motion of no confidence against the Sarpanch/President or Upa- Sarpanch/Vice President of the Panchayat, shall give notice thereof to the Secretary in Form-A. Where SCA/12098/2004 17/33 JUDGMENT the motion of no confidence is to be moved against the Sarpanch/President as well as Upa-Sarpanch/Vice President, two separate notice shall be given. If the notice is given jointly by more than one member, the motion may be moved by any of the members who have assigned the notice. Every such notice shall be supported by at least one-half of the total number of members of the panchayat. (2) The member giving any notice under sub-rule (1) shall forward therewith three additional copies thereof to the Secretary who shall deliver one copy to the Sarpanch/President, one copy to the Upa- Sarpanch/Vice President and one copy. (i) to the Taluka Development Officer where the motion relates to the Sarpanch or Up-Sarpanch or (ii) to the District Development Officer where the motion relates to the President or Vice President of the Taluka Panchayat, or (iii) to the Development Commissioner where the motion relates to the President or Vice President of a District Panchayat. Explanation : For the purposes of this rule, if the total number of members of a panchayat is odd, then in calculating the number for the purpose of this rule, a fraction shall be counted as one, that is to say, if the number of member is 31, the member required for supporting the notice so that a motion may be moved shall be 16 and so on.” SCA/12098/2004 18/33 JUDGMENT Rule 21 of the said Rules, inter alia provides that when the Panchayat takes a decision on any motion of no confidence, the Secretary shall forthwith communicate to the officer to whom a copy of the motion was sent under sub-rule (2) of rule 20, the names of all the members who were present at the meeting at which such decision was taken and the nature of vote given by each member for or against the motion. 10.5 Rule 29 to 35 of the said Rules provide for the manner in which the business is to be conducted during the meeting of the Panchayat. The said rules are reproduced herein-below: “29. Conduct of members during meeting. (1) A member deciding to make any observation on any matter before the meeting shall rise in his seat and if called upon by the Presiding Officer, address his remarks to the Presiding Officer. If he is not called upon by the Presiding Officer, he shall resume his seat: Provided that the Presiding Officer, may permit any member to address the meeting while sitting. (2) A member shall confine his speech strictly to: the question before the meeting and shall cease to SCA/12098/2004 19/33 JUDGMENT make remarks which are held by the Presiding Officer to be irrelevant or offensive, (3) Members shall not talk amongst themselves in the meeting so as to disturb the proceedings or a member who is speaking. 30. Right of Presiding Officer to address meeting. The Presiding Officer may address the meeting at any stage of a debate. 31. Mover to start debate. After a motion has been placed before the meeting for consideration under rule 26 the mover may speak in support to the motion and the seconder may either follow or reserve his speech for a later stage of the debate thereon. 32. Right of reply. The mover, or if the mover waives his rights, the seconder of a substantive resolution may reply at the conclusion of the debate thereon, but to no other member shall, without express permission of the Presiding Officer speak more than once on the same resolution except for the purpose of making a personal explanation but in such case, no debatable matter; shall be brought forward. 33. Time limits for speech. The Presiding Officer may fix a reasonable time limit within which the mover, the seconder, any any other member shall end his speech. SCA/12098/2004 20/33 JUDGMENT 34. Resolution to be voted on conclusion of debate. (1) The Presiding Officer may, on the conclusion of a debate on a resolution or at any time when the Presiding Officer is satisfied that the resolution has been sufficiently discussed, put the resolution to the vote of the meeting. (2)(i) When there are one or more amendments to a resolution, the Presiding Officer shall first put to vote the amendment or amendments one by one; (ii) If all amendments are lost, the Presiding Officer shall put the resolution to vote; (iii) If any amendment or amendments are carried the Presiding Officer shall put to vote the resolution incorporating the amendment or amendments which have been carried; (iv) The Presiding Officer may group together amendments which are substantially the same: Provided that in a group of amendments, the Presiding Officer may give precedence to any amendment which is most comprehensive and that when such amendment is either carried or lost, it shall not be