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2009 DIGILAW 478 (GUJ)

THAKORE BHALUSANGJI MANSANGJI v. STATE OF GUJARAT

2009-07-17

D.A.MEHTA

body2009
D. A. MEHTA, J. ( 1 ) THE petitioners, members of Uvarsad gram Panchayat, have challenged the order dated 02/07/2009 made by respondent No. 1. the Revisional Authority whereby respondent No. 2 herein, who was removed from the post" of Sarpanch under Resolution dated 17/02/2009 has been held by respondent No. 1 Authority to have been removed in contravention of provisions of section 56 (3) of the Gujarat Panchayats act, 1993 (the Act ). ( 2 ) IT is the say of the petitioners that on 22/01/2009 sixteen members out of strength of twenty two members of Uvarsad Gram panchayat moved a proposal expressing no confidence against respondent No. 2 herein and respondent No. 3, the Taluka development Officer was requested to convene a meeting of the Gram Panchayat. Accordingly at the meeting convened on 17/02/2009 under the aegis of the Taluka development Officer and in presence of an observer appointed by the Taluka development Officer respondent No. 2 was removed from the post of Sarpanch because the Resolution was carried by a majority vote. That though respondent No. 2 had participated at the meeting and had not expressed any intention to address the house on the subject of no confidence motion yet the Revisional Authority has allowed the revision Application filed by respondent no. 2 only on a technical ground, viz. . respondent No. 2, was not permitted to speak at the meeting convened on 17/02/2009. That in-fact the Taluka Development officer and the observer had remained present before the Revisional Authority and had supported the petitioners by stating that respondent No. 2 had not expressed any willingness to address the house. Therefore the Revisional Authority has committed an error in reading provisions of Section 56 (3)of the Act in the manner done by the revisional Authority. ( 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 Upa-sarpanch. Therefore the Revisional Authority has committed an error in reading provisions of Section 56 (3)of the Act in the manner done by the revisional Authority. ( 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 Upa-sarpanch. Sub-Section (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 Upa-Sarpanch, 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 sub-Section 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 Upa-Sarpanch 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 sub-Section (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. 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 pre-condition 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. ( 6 ) IN the circumstances, in absence of any legal infirmity in the impugned order made by the Revisional Authority the petition does not merit acceptance and is accordingly summarily rejected. Petition rejected summarily.