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2005 DIGILAW 222 (GUJ)

JAGDISHBHAI B. RAVOOT v. STATE OF GUJARAT

2005-03-25

M.R.SHAH

body2005
M. R. SHAH, J. ( 1 ) RULE. Shri P. R. Abichandani, the learned AGP waives service of Rule on behalf of the respondent Nos. 1 and 3. Shri Dhaval C. Dave, the learned advocate waives service of rule for respondent No. 5. With the consent of the learned advocates for the parties, the matter was heard finally and the matter is CAV for prouncement of judgment. . RS 2. ( 2 ) IN this petition under Article 226 of the Constitution of India, a short but an interesting question of law has arisen to the effect that "at the time of consideration of No Confidence Motion against the Sarpanch as envisaged under Section 56 of the Gujarat Panchayats Act, 1993 [ hereinafter referred to as "the Act" ] and for consideration of strength of two-third, whether a vote of the Sarpanch is required to be counted or not ?" ( 3 ) THOUGH against the impugned decision of the Taluka Development Officer dated 5. 1. 2005, the petitioners had preferred an appeal before the Appellate Committee of the District Panchayat, Valsad, however in view of the question of law which has arisen in the present special civil application, the learned advocates appearing for the parties requested to decide and dispose of the present special civil application on merits and to consider the legality and validity of the decision of the Taluka Development Officer, Umbergaon dated 5. 1. 2005 on merits and that is how, the present special civil application is being disposed of on merits considering the legality and validity of the decision of the Taluka Development Officer, Umbergaon dated 5. 1. 2005. ( 4 ) THERE were in all 29 members of Umbergaon Gram Panchayat, out of which, one seat has fallen vacant and therefore, in all there are 28 members of Gram Panchayat and one Sarpanch. 1. 2005. ( 4 ) THERE were in all 29 members of Umbergaon Gram Panchayat, out of which, one seat has fallen vacant and therefore, in all there are 28 members of Gram Panchayat and one Sarpanch. Facts reflect that 19 members of the Panchayat moved a no confidence motion against the respondent No. 5 - Sarpanch of Umbergaon Gram Panchayat (hereinafter referred to as the "panchayat" ) as required under Section 56 of the Act and it is the case of the petitioners that 19 (nineteen) members cast their votes in favour of no confidence motion and 9 (nine) members cast their votes against the no confidence motion (inclusive of one vote of respondent No. 5 as Sarpanch ) and one member remained neutral, means, he did not cast his vote either in favour of no confidence motion and / or against the no confidence motion. The Taluka Development Officer, Umbergaon ( for short referred to as "tdo" ) was of the opinion that considering strength of 28 members plus one Sarpanch i. e. against 29 members / votes considering the provisions of Section 56 of the Act, Resolution for no confidence motion is required to be passed by not less than two-third and accordingly, 20 votes are required in favour of no confidence motion, against which, there were only 19 votes cast in favour of no confidence motion and therefore, no confidence motion has failed and is not carried out and therefore, a report was sent by the TDO, Umbergaon to the District Development Officer, Valsad ( for short "ddo" ) to that effect. Being aggrieved and dissatisfied with the said decision of the TDO, Umbergaon dated 5. 1. 2005, the petitioners members of Panchayat 19 in numbers have preferred the present special civil application under Article 226 of the Constitution of India for an appropriate writ, direction and order in the nature of certiorari quashing and setting aside the decision of the Taluka Development Officer dated 5. 1. 2005 and further prayed for appropriate writ, direction and order in the nature of mandamus directing the respondent Nos. 1 to 4 to forthwith take charge of the office of Sarpanch, Umbergaon Gram Panchayat from the respondent No. 5 and further directing the respondent No. 5 not to act as Sarpanch, Umbergaon Gram Panchayat. 1. 2005 and further prayed for appropriate writ, direction and order in the nature of mandamus directing the respondent Nos. 1 to 4 to forthwith take charge of the office of Sarpanch, Umbergaon Gram Panchayat from the respondent No. 5 and further directing the respondent No. 5 not to act as Sarpanch, Umbergaon Gram Panchayat. ( 5 ) SHRI R. S. Sajanwala, the learned advocate appearing on behalf of the petitioners has submitted that as per sub-section (2) of Section-56 of the Act, where in case of the Sarpanch or, as the case may be, the Upa-Sarpanch, motion is carried out by the 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. It is the contention on behalf of the petitioners that while considering two third of the total number of members of the Panchayat, the vote of Sarpanch is not required to be included and / or considered as Sarpanch is not a member of the Panchayat as envisaged under Section 9 of the Act. Relying upon Section-9 of the Act, it is submitted that the village Panchayat shall consist of such number of members as provided in sub-section (4) and sub-section (4) of Section-9 of 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 there thousand, than for every one thousand or part thereof in excess of three thousand, the said number of seven shall be increased by two. Relying on sub-section (3) (b) of Section 9 of the Act to the effect that The Sarpanch shall be elected by ballot by the qualified voters of the village from amongst themselves. It is submitted that the Sarpanch cannot be said to be a member of the Panchayat and therefore, while considering two-third at the time of considering non confidence motion, vote of the Sarpanch is required to be excluded and is not required to be considered. It is submitted that the Sarpanch cannot be said to be a member of the Panchayat and therefore, while considering two-third at the time of considering non confidence motion, vote of the Sarpanch is required to be excluded and is not required to be considered. Thus, it is the case of the petitioners that considering the case on hands as there are 28 members of the Panchayat, the strength for two-third would come to 19 and when 19 members of the Panchayat cast their votes in favour of no confidence motion which is not less than two-third and therefore, the decision of the TDO, Umbergaon to the effect that motion is not carried as two-third would be 20 and not 19 and it is not carried not less than two-third is erroneous, illegal and contrary to the provisions of the statute. ( 6 ) SHRI R. S. Sanjanwala, the learned advocate appearing on behalf of the petitioners has further submitted that though "member" is not defined in the Act but a "member" is defined in Gujarat Panchayats (Procedure) Rules, 1997 (hereinafter referred to as the "rules" for short ) and even "sarpanch" is also defined in the said Rules. As per Rule (2) (d) "member" means a member of a Panchayat and as per Rule (2) (h) "sarpanch" means a Sarpanch of a village Panchayat and in his absence, the Up-Sarpanch of the village Panchayat. Thus, Shri Sanjanwala, the learned advocate has submitted that "sarpanch" cannot be said to be a Member of Panchayat. Relying on Rule (10) of the said Gujarat Panchayats (Procedure) Rules, 1997 which is for the purpose of quorum which reads as under :"10. QUORUM (1) The quorum for the transaction of business at the meeting of the panchayat shall be one-third of the total number of members of the panchayat including Sarpanch / President and Up-Sarpancha / Vice-President. Explanation : For the purpose of this rule, if the total number of members entitled to vote is old then in calculating the number for the purposes of quorum, fraction shall be counted as one i. e. if the number of members is thirty one, the number required for the quorum shall be eleven. Explanation : For the purpose of this rule, if the total number of members entitled to vote is old then in calculating the number for the purposes of quorum, fraction shall be counted as one i. e. if the number of members is thirty one, the number required for the quorum shall be eleven. "further, relying on Section 2 (d) of the Gujarat Village Panchayats (Up-Sarpanch) Election Rules, 1994, which defines "member", according to the same "member" means, a member of a Panchayat and includes the Sarpanch, Shri R. S. Sanjanwala, the learned advocate for the petitioners has submitted that whenever a Sarpanch is required to be included and considered as a "member", it is so provided and therefore, when in Section-56 of the Act, it does not mention that two-thrid of total of number of members of the Panchayat inclusive of the Sarpanch, vote of Sarpanch for the purpose of considering two-third while considering the no confidence motion is required to be excluded and is not required to be considered and accordingly, he requested to allow the present special civil application. ( 7 ) ON the other hand, Shri Dhaval C. Dave, the learned advocate appearing on behalf of the respondent No. 5 has vehemently relied upon sub-section (3) of Section 56 of the Act which reads as under :" (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 ). "relying upon the same, it is submitted that when the legislature itself has given a right of vote to the Sarpanch, the vote of the Sarpanch is required to be considered while considering the strength of two-third while considering no confidence motion, otherwise, sub-section (3) of Section 56 of the Act would become redundant and nugatory. It is also submitted that the vote of the Sarpanch is required to be considered somewhere, failing which, the same would be against the object of sub-section (3) of Section 56 of the Act whereby the Sarpanch is having a right to vote. It is also submitted that the vote of the Sarpanch is required to be considered somewhere, failing which, the same would be against the object of sub-section (3) of Section 56 of the Act whereby the Sarpanch is having a right to vote. Meeting with the arguments on behalf of the petitioners to the effect that considering Section-9 of the Act, the Sarpanch cannot be said to be a Member of the Panchayat, Shri Dave, the learned advocate for the respondent No. 5 has submitted that said contention has no substance inasmuchas if Section-9 of the Act is read closely and minutely, then Sarpanch can be said to be a Member of the Panchayat as according to Section-9, the Sarpanch can be a member while considering constitution of Village Panchayat. Dealing with arguments on behalf of the petitioners relying on Rule (2) (d) read with Rule (10) of the Gujarat Panchayats (Procedure) Rules, 1997 and Rule (2) (d) of the Gujarat Village Panchayats (Up-Sarpanch) Election Rules, 1994, Shri Dhaval Dave, the learned advocate for the respondent No. 5 has submitted that those Rules are required to be considered for the purpose for which the Rules are enacted and Rules can not go beyond the scope of main Act. It is also contended that when the statute, more particularly, sub-section (3) of Section-56 of the Act confers a right upon the Sarpanch to cast his in a meeting for no confidence motion either against him and / or the Upa-Sarpanch, his vote is required to be considered somewhere and where the Sarpanch has cast his vote, the same is required to be considered for the strength of two-third, otherwise, his vote will become useless and that is not intention of the legislature and therefore, it is submitted that having found that considering 29 members present in the meeting, only 19 have cast their votes in favour of no confidence motion and the same is less than two-third i. e. considering the strength of 29 members, two-third will be 20 in numbers and therefore, the TDO has rightly taken decision that no confidence motion against the respondent No. 5 is not passed and / or carried successfully as required under Section 56 of the Act and therefore, requested to dismiss the present special civil application. ( 8 ) IN reply, Shri Sanjanwala, the learned advocate appearing on behalf of the petitioners has submitted that sub-section (3) of Section 56 of the Act is required to be considered for the purpose of presiding over a meeting as in the provisions of the Act, it is the Sarpanch who is to preside over the meeting of the Panchayat and therefore, it is so provided under sub-section (3) of Section 56 that "notwithstanding anything contained in this Act or the rules made thereunder, a Sarpanch or, as the case may be, shall not preside over a meeting in which a motion of no confidence is discussed against him" and therefore, it is the contention on behalf of the petitioners that sub-section (3) of Section 56 of the Act, is required to be construed as so far it relates to presiding over a meeting by the Sarpanch is concerned. ( 9 ) SHRI P. R. Abichandani, the learned AGP for the respondent Nos. 1 to 3 has supported the order impugned in this petition and contended that the order of TDO, Umbergaon is just and in proper spirit of Act and therefore, requested to dismiss the present special civil application. 9. 1. Heard the learned advocates appearing on behalf of the respective parties. 9. 2. It is not in dispute that there are 28 elected members of the Panchayat, out of which, one half of the total number of members of the Panchayat moved a no confidence motion against the respondent No. 5 and 19 members cast their votes in favour of no confidence motion and 9 members against the no confidence motion inclusive of vote of the Sarpanch which was but natural against the no confidence motion as no Sarpanch would cast the vote in favour of no confidence motion which is moved against himself. As per sub-section (3) of Section 56 of the Act, the Sarpanch shall not preside over a meeting in which a non confidence motion is discussed against him, but he shall have right to speak or otherwise to take part in the proceedings of such a meeting (including the right to vote ). There is purpose for this also with regard to not allowing the Sarpanch to preside over a meeting. There is purpose for this also with regard to not allowing the Sarpanch to preside over a meeting. When a no confidence motion is to be discussed against the Sarpanch to show fairness a person against whom no confidence motion is discussed, is not required to preside over a meeting. However, as stated hereinabove, the Sarpanch against whom no confidence motion is moved has right to speak or otherwise to take part in the proceedings of such a meeting including the right to vote. Thus, the legislature intended that in a no confidence motion, the Sarpanch has right to vote. Thus, when the Sarpanch has right to vote, his vote is required to be calculated somewhere in the meeting. If the contention on behalf of the petitioners to the effect that while considering the strength of two-third, vote of the Sarpanch is not required to be counted and / or is required to be excluded then, sub-section (3) of Section 56 of the Act, would be redundant and nugatory and the same will be contrary against the very intention of the legislature. It is also specifically provided in sub-section (3) of Section 56 of the Act that the Sarpanch shall have right not only to speak but has right otherwise also to take part in the proceedings of such a meeting. Taking part in the proceedings of such a meeting of no confidence motion is also required to be given some meaning. It is cardinal principle of interpretation of statute that no word or provisions should be considered redundant or superfluous in interpreting the provisions of a statute. On this issue, the observations of the Honble Supreme Court in the decision of SANKAR RAM and CO V. KASI NAICKER, (2003) XI SCC 699, more particularly, para-7 of the said judgment is required to be considered which is reproduced as under:"7. IT is a cardinal rule of construction that normally no word or provision should be considered redundant or superfluous in interpreting the provisions of a statute. In the field of interpretation of statutes, the courts always presume that the legislature inserted every part thereof with a purpose and the legislative intention is that every part of the statute should have effect. In the field of interpretation of statutes, the courts always presume that the legislature inserted every part thereof with a purpose and the legislative intention is that every part of the statute should have effect. It may not be correct to say that a word or words used in a statute are either unnecessary or without any purpose to serve, unless there are compelling reasons to say so looking to the scheme of the statute and having regard to the object and purpose sought to be achieved by it. A Constitution Bench of this Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma while interpreting and considering the effect of the proviso to Section 33 (2) (b) of the Industrial Disputes Act, 1947 in para-13 observed (SCC 252-53) : "13. The proviso to Section 33 (2) (b), as can be seen from its very unambiguous and clear language,is mandatory. . . . Taking a contrary view that an order of discharge or dismissal passed by an employer in contravention of the mandatory conditions contained in the proviso does not render such an order inoperative or void, defects the very purpose of the proviso and it becomes meaningless. It is well settled rule of interpreting that no part of statute shall be construed as unnecessary or superfluous. The proviso cannot be diluted or disobeyed by an employer. . . . The interpretation of statute must be such that it should advance the legislative intent and serve the purpose for which it is made rather than to frustrate it. " Once the requirements of Section 55 of the Act are satisfied, the appellant is entitled to the protection of the said section as a bonafide transferee. Taking a contrary view takes away the very protection umbrella specifically made available to a bonafide transferee covered by Section 55. Protection provided for bona fide transfer in Section 55 is in a way an exception to Section 28 (7 ). "9. 3 At this stage, observations of the Honble Supreme Court in case of BALRAM KUMAWAT V. UNION OF INDIA AND OTHERS, (2003) 7 SCC 628 , more particularly, para-26 is required to be considered. Para-26 of the aforesaid decision reads as under : "26. "9. 3 At this stage, observations of the Honble Supreme Court in case of BALRAM KUMAWAT V. UNION OF INDIA AND OTHERS, (2003) 7 SCC 628 , more particularly, para-26 is required to be considered. Para-26 of the aforesaid decision reads as under : "26. The courts will therefore reject that construction which will defeat the plain intention of the legislature even though there may be some inexactitude in the language used. [see Salmon v. Duncombe (AC at p. 634)]. Reducing the legislation futility shall be avoided and in a case where the intention of the legislature cannot be given effect to, the courts would accept the bolder construction for the purpose of brining about an effective result. The court, when rule of purposive construction is gaining momentum, should be very reluctant to hold that Parliament has achieved nothing by the language it used when it is tolerably plain what it seeks to to achieve. [ See BBC Enterprise v. Hi-Tech Xtravision Ltd. (All ER at pp. 122-23)]"9. 4. Considering Section-56, more particularly, sub-section (3) of Section 56 of the Act and the decisions of the Honble Supreme Court and the observations made by the Honble Supreme Court with regard to interpretation of statute as stated hereinabove, it is not possible to accept the contention on behalf of the petitioners to the effect that while considering the strength of two-third, vote of the Sarpanch is required to be excluded and / or is not required to be considered. If that interpretation is accepted, then, in the opinion of this Court, sub-section (3) of Section-56 by which the Sarpanch has been conferred with a right to take part in the proceedings of such a meeting including the right to vote, would become redundant and nugatory. Thus, taking case on hands, twenty nine members participated in the meeting to consider no confidence motion against the respondent No. 5. Nineteen members have cast their votes in favour of no confidence motion. Nine member inclusive of respondent No. 5 i. e. the Sarpanch against whom no confidence motion is moved, cast their votes against no confidence motion. If as argued on behalf of the petitioners, the vote of the Sarpanch is required to be ignored then question arises where that vote will go and what is the value of that vote ? Nine member inclusive of respondent No. 5 i. e. the Sarpanch against whom no confidence motion is moved, cast their votes against no confidence motion. If as argued on behalf of the petitioners, the vote of the Sarpanch is required to be ignored then question arises where that vote will go and what is the value of that vote ? Thus, considering sub-section (3) of Section 56 of the Act, when the Sarpanch is conferred with a right including the right to vote in such a meeting, naturally, the intention of the legislature is to allow the Sarpanch to take part in the proceedings of such meeting including the right to vote for all purposes for the purpose of considering the no confidence motion i. e. inclusive of considering the strength of two-third of that total number of members. Thus, when such an interpretation is there, it will add to the meaning and the intention of the legislature. When the legislature specifically has conferred a right upon the Sarpanch i. e. right to vote in the meeting, certainly that vote is required to be counted for the purpose of no confidence motion, that is, while considering two - third of total number of members of the Panchayat. Under the circumstances, when 19 members cast their votes out of 29 members (inclusive of the Sarpanch), it was less than two-third as the required strength was 20 members and considering that position, when the TDO, Umbergaon has decided and held that no confidence motion is not carried by required strength as envisaged under Section 56 of the Act, it cannot be said that the same is in any way illegal and / or contrary to the provisions of the Act. 9. 5. Now dealing with the contention on behalf of the petitioners, relying upon Rule (2) (d) and Rule (2) of the Gujarat Panchayat (Procedure) Rules, 1997 as well as Rule (2) (d) of Gujarat Village Panchayats (Up-sarpanch) Election Rules, 1994 to the effect that whenever the Sarpanchs vote is required to be considered along with the Members, there is specific mention that a member of Panchayat includes the Sarpanch and when there is no reference to that effect in Section 56 of the Act, the Sarpanch cannot be considered to a member of the Panchayat. In my view, the said argument also does not bear any substance. In my view, the said argument also does not bear any substance. Definition under Section 2 (d) of the aforesaid Rules are required to be considered for the purpose for which the said Rules are enacted. Rules cannot be beyond the Act. When sub-section (3) of Section-56 of the Act has specifically conferred a right upon the Sarpanch to cast his vote and to participate in the meeting for all purposes in a meeting of no confidence motion, he is required to be considered to be as "member of the Panchayat", otherwise, sub-section (3) of Section 56 as stated above would be redundant, nugatory and contrary to the intention of the legislature. 9. 6. So far as the contention on behalf of the petitioners relying upon Section-9 of the Act to the effect that a Village Panchayat of a village consist of such number of members as provided in sub-section (4) and as per sub-section (4), 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 excess three thousand, than for every one thousand or part thereof in excess of three thousand, the said number of seven shall be increased by two and therefore, only those members as provided in sub-section (4) can be considered to be members of the Panchayat is concerned, if Section-9 of the Act is read as a whole, then in that case, the Sarpanch is also inclusive of Members of the Panchayat as as per the sub-section (3) (a) a village panchayat shall have a Sarpanch and an Upa-Sarpanch and therefore, a Sarpanch is a part of village panchayat. Therefore, the contention on behalf of the petitioners relying upon Section-9 of the Act to the effect that the Sarpanch cannot be said to be a member of panchayat, cannot be accepted. Even otherwise, considering sub-section (3) of Section-56 of the Act, there is non obstacle clause i. e. notwithstanding anything contained in this Act or the rules made thereunder a Sarpanch or, as the case may be. . . . . . shall have a right to speak or otherwise to take part in the proceedings of such a meeting (including the right to vote ). . . . . . shall have a right to speak or otherwise to take part in the proceedings of such a meeting (including the right to vote ). Under the circumstances, the Sarpanch is conferred with a right to speak or otherwise to take part in the proceedings of such a meeting including the right to vote notwithstanding anything contained in this Act or Rules. Thus, as stated hereinabove, if a vote of the Sarpanch is not to be counted while considering the strength of two-third in no confidence motion, considering the provisions of Section-56 of the Act, then it will be against the intention of the legislature as legislature has intentionally has conferred a right upon the Sarpanch to speak or otherwise to take part in such a meeting including the right to vote and therefore, there cannot be any other interpretation by the Court. Under the circumstances, considering the provisions of Section-9 read with Section-56 of the Act, a Sarpanch can be considered to be a member of a village panchayat atleast for the purpose of considering no confidence motion. 9. 7. For the reasons stated hereinabove, and considering sub-section (3) of Section 56 of the Act, so also, considering the fact that out of 29 members, 19 members cast their vote in favour of no confidence motion which is less than two-third as required strength for two-third would be 20 members, the decision of the TDO, Umbergaon to the effect that no confidence motion is not carried as required under Section 56 of the Act, is neither illegal, nor contrary to the provisions of the Act. 9. 8. For the reasons aforementioned, there is no substance in the present special civil application, and the same requires to be dismissed. Accordingly, the petition is dismissed. Rule is discharged with no order as to costs. Direct Service is permitted to the parties. .