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2018 DIGILAW 1106 (GUJ)

MAHESHKUMAR KANTILAL DAVE v. DEVELOPMENT COMMISSIONER

2018-09-19

BELA M.TRIVEDI

body2018
JUDGMENT : 1. The present petition is directed against the order dated 18.08.2018 passed by the respondent Development Commissioner (Annexure A) superseding the Lakhani Taluka Panchayat for a period of six months from the date of publication of the notification in the Government Gazette, exercising the powers conferred under subsection 1 of Section 253 of The Gujarat Panchayats Act, 1993 (hereinafter referred as “the said Act”). 2. The chronology of events may be stated as under: 2.1. The petitioner were declared elected as the members of the Lakhani Taluka Panchayat on 26.02.2018. There were total 22 seats in the said Panchayat out of which 11 members belonged to the Indian National Congress Party and 11 members belonged to the Bharatiya Janta Party. The petitioner no. 1 came to be declared as the President by draw of lots and one Gnagaben Sureshkumar Patel came to be declared as Vice President of the said Panchayat, as per the minutes of the meeting dated 12.03.2018. 2.2. The meeting of the elected members of the Panchayat was called on 28.03.2018 for which the agenda was issued by the petitioner no. 1 as the President of the Panchayat. One of the items of the agenda was to pass the annual budget of the Panchayat. 2.3. During the course of the meeting on 28.03.2018, 21 members were present and the first two agenda items were unanimously passed, however the agenda item No. 3 with regard to approval of the budget could not be passed as some of the members raised objections. 2.4. According to the petitioners, the said agenda item No. 3 was passed and thereafter agenda item no. 4 was cancelled and the petitioner No. 1 had declared the meeting to be over, and walked out of the meeting room along with other 9 members. 2.5. However, the Vice President continued the meeting with the remaining 11 members and passed the resolution that the budget was not approved. 2.6. The petitioner No. 1 therefore preferred an appeal being Appeal No. 5 of 2018 before the Appeal Committee i.e. the District Panchayat, Banaskantha challenging the action of the Vice President in continuing with the meeting and passing the resolution. Initially, the appellate committee granted as-interim stay vide order dated 30.03.2018, however subsequently dismissed the appeal on 11.05.2018 on the ground of being not maintainable. 2.7. Initially, the appellate committee granted as-interim stay vide order dated 30.03.2018, however subsequently dismissed the appeal on 11.05.2018 on the ground of being not maintainable. 2.7. In the meantime the Development Commissioner, the respondent herein issued a Notice on 02.05.2018 in exercise of the powers conferred under Section 253 of the said Cat calling upon the petitioners to show cause as to why the Panchayat should not be superseded on the ground that the budget was not passed. 2.8. The petitioners therefore approached this Court challenging the said show cause notice by way of petition being Special Civil Application No. 7971 of 2018. the said petition came to be dismissed by the Court as not pressed for by the learned Advocate appearing for the petitioners, vide order dated 20.06.2018. 2.8. The petitioner No. 1 thereafter appeared before the respondent Development Commissioner on 23.07.2018 as the representative of 10 members and requested to grant adjournment to engage an Advocate. The respondent therefore adjourned the hearing to 07.08.2018. On 07.08.2018, the learned Advocate Mr. K.H.Brahmbhatt on behalf of 12 members of the Panchayat had remained present and submitted 12 Affidavits duly notarized, in support of the resolution of the Panchayat not approving the budget. However the petitioner No. 1 sent a letter requesting the respondent to adjourn the hearing on the ground that his brother was operated. The respondent rejected the said request and proceeded with the hearing of the said proceedings in respect of the Show Cause Notice. The respondent thereafter passed the impugned order dated 18.08.2018 superseding the Panchayat for a period of six months from the date of publication of the notification in the Government Gazette, exercising the powers conferred under Section 253 read with Section 138(4) of the said Act. The notification was also published on the same day in the official gazette. Being aggrieved by the said order the present petition has been filed by the petitioner. 3. The learned Senior Advocate Mr. Percy Kavina appearing with Mr. Dipen Desai for the petitioners mad e the following manifold submissions: 3.1. The impugned order passed by the respondent Development Commissioner was bad as he had failed to give sufficient opportunity of hearing to the petitioners to represent their case in response to the Show Cause Notice issued on 02.05.2018. Hence, the said order being in violation of the principles of natural justice had stood vitiated. 3.2. The impugned order passed by the respondent Development Commissioner was bad as he had failed to give sufficient opportunity of hearing to the petitioners to represent their case in response to the Show Cause Notice issued on 02.05.2018. Hence, the said order being in violation of the principles of natural justice had stood vitiated. 3.2. The Vice President of the Panchayat did not have any authority to continue with the meeting after the 10 members including the petitioner no. 1 who was the President had walked out from the meeting room. 3.3. The respondent should not have resorted to the extreme step of superseding the Panchayat, which in fact was destructive to the political morality. 3.4. It was not mandatory on the part of the respondent exercising the powers of the State Government to supersede the Panchayat under the guise that the Panchayat had failed to pass the budget, merely because it was lawful to do so as per Section 138(4) of the said Act. reported 3.5. There was no effective consultation made with the District Panchayat as required under Section 253 before superseding the Panchayat inasmuch as the executive committee of the District Panchayat, Banaskantha in its meeting dated 21.07.2018 had not taken any positive decision for superseding of the Lakhani Taluka Panchayat on the ground that the Panchayath ad failed to pass the budget. 3.6. The subjective satisfaction of the respondent being absent in the impugned order, and the petitioner No. 1 having not been supplied the copies of the Affidavits filed by the 12 members during the course of hearing before the respondent Development Commissioner, there was non-adherence to the statutory provisions and violation of the principles of natural justice. 3.7. Relying upon the case of Thasra Village Panchayat Versus P.D.Vaghela and Ors. reported in 2002 (3) GLH 692 he submitted that it was not mandatory to supersede or dissolve the Panchayat if the budget was not passed within the stipulated time. Further relying upon 2013 (7) SCC 25 in case of State of Madhya Pradesh and Ors. Versus Sanjay Nagayach and Ors., he submitted the supersession is an exception to the general rule. The consultation with the District Panchayat being not meaningful and effective, the legally elected body could not be put out of the office by an illegal order. 3.8. Further relying upon 2013 (7) SCC 25 in case of State of Madhya Pradesh and Ors. Versus Sanjay Nagayach and Ors., he submitted the supersession is an exception to the general rule. The consultation with the District Panchayat being not meaningful and effective, the legally elected body could not be put out of the office by an illegal order. 3.8. In the alternative, the respondent Authority should be directed to hold the election immediately for reconstitution of the Panchayat, and the such reconstituted Panchayat should continue only for the remainder of the period for which the dissolved Panchayat would have continued, had it not been dissolved, in view of Article 243 [E] of the Constitution of India. 4. The learned AGP Ms. Jyoti Bhatt made following submissions: 4.1. The present petition is bad for the nonjoinder of necessary parties, as the petitioners have not joined the Taluka Panchayat, District Panchayat and other members of the Panchayat who had passed the resolution not approving the budget on 28.03.2018. 4.2. The petitioner and more particularly petitioner No. 1 was granted sufficient opportunity of hearing in respect of the Show Cause Notice dated 02.05.2018, however he chose not to reply and remain present before the respondent-Commissioner, and kept on asking for adjournment without any justifiable reason. 4.3. The respondent had rightly exercised the powers under Section 253 of the said Act, as the Lakhani Taluka Panchayat had failed to pass the annual budget before 31.03.2018 and it was lawful for the respondent to form an opinion that the Panchayat was incompetent to perform the duties imposed on it or the functions entrusted to it under the provisions of the said Act, in view of Section 138(4) of the said Act. In this regard, she has relied upon the decisions of this Court in case of Mohanlal Nathubhai and Ors. Versus R.M. Desai reported in 1968 (9) GLR 991 in case of Manishbhai Vinodbhai Patel and State of Gujarat reported in 2005(2) GCD 1780 . 5. In this regard, she has relied upon the decisions of this Court in case of Mohanlal Nathubhai and Ors. Versus R.M. Desai reported in 1968 (9) GLR 991 in case of Manishbhai Vinodbhai Patel and State of Gujarat reported in 2005(2) GCD 1780 . 5. In the instant case, the respondent Development Commissioner having been Authorised by the State Government, has exercised the powers of the State Government conferred under Section 253 read with Section 138(4) of the said Act for passing the impugned order superseding the Lakhani Taluka Panchayat on the ground that the Taluka Panchayat had failed to approve the budget estimate on or before 31.03.2018 as required under Section 138 of the said Act. Hence it would be beneficial to refer to the relevant provisions of the Act in order to appreciate the rival contentions raised by the learned Advocates for the parties. Section 138 which pertains to the Annual Budget Estimates, reads as under: “138. Annual Budget Estimates: (1) Every Taluka Panchayat shall have prepared annually on or before the 15th December of the current year or such date not later than 31st December of the current year as may be approved by the District Panchayat, in such form and manner as may be prescribed in this behalf a budget estimate of its income and expenditure for the next year and forward it to the district panchayat on or before— (a) the 31st December of the current year where the budget estimate is prepared on or before the 15th December of the current year, or (b) the 15th January of the current year where the budget estimate is prepared after the 15th December of the current year but on or before the said approved date: Provided that the budget estimate shall be so prepared that at the end of the year the panchayat shall have at its credit a balance of not less than such minimum amount as may be prescribed in that behalf. (2) The district panchayat shall scrutinise the budget estimate and return it to the panchayat within two months of its receipt with such observations and recommendations as it may make in respect of the budget estimate. (2) The district panchayat shall scrutinise the budget estimate and return it to the panchayat within two months of its receipt with such observations and recommendations as it may make in respect of the budget estimate. (3) The Taluka Panchayat shall thereupon approve the budget estimate on or before the 31st March of the current year with such modifications as it may think fit having regard to the observations and recommendations made by the panchayat under subsection (2). (4) Where any Taluka Panchayat has failed to comply with the provisions of subsection (3) it shall be lawful for the State Government to form an opinion that the panchayat is incompetent to perform the duties imposed on it or functions entrusted to it under the provisions of this Act.” 6. Section 140 which restrains the Taluka Panchayat from incurring the expenditure unless the sum is included in the budget estimate approved under Section 138 or 139, reads as under: “140. Except in emergency no sum to be expended unless it has been included in budget. (1) Save in the case of a pressing emergency no sum shall be expended by or on behalf of a Taluka Panchayat unless such sum is included in some budget estimate approved under section 138 or 139 and in force at the time of incurring the expenditure. (2) If on a pressing emergency any sum is expended otherwise than in accordance with subsection (1) the circumstances shall be forthwith communicated in writing by the President of the Panchayat to the competent authority with an explanation of the way in which it is proposed by the panchayat to cover such extra expenditure.” 7. Section 253 which pertains to dissolution and supersession of the Panchayats for default reads as under: “253. Section 253 which pertains to dissolution and supersession of the Panchayats for default reads as under: “253. Dissolution or supersession of panchayats for default: (1) If, in the opinion of the State Government, a panchayat exceeds or abuses its powers or is incompetent to perform or makes persistent default in the performance of the duties imposed on it or functions entrusted to it under any provision of this Act or by or under any other law for the time being in force, or fails to obey an order made under this Act by the panchayat superior thereto or by the State Government or any officer authorised by it, under this Act or persistently disobeys any of such orders, the State Government may, after consultation with the district panchayat in the case of a panchayat subordinate to it and after giving the panchayat an opportunity of rendering an explanation, by order in the Official Gazette (i) dissolve such panchayat, or (ii) supersede such panchayat for the period specified in the order : Provided that such period shall not be longer than six months or the residual period of duration of such panchayat whichever is less Provided further that the State Government may subject to, the preceding proviso from time to time after making such inquiry as it may consider necessary by an order published in the Official Gazette extend the period of supersession of such panchayat until such date as may be specified in the order or by like order curtail the period of supersession. (2) When a panchayat is dissolved or superseded, all members of the panchayat shall from the date specified in the order, vacate their office as such members. (3) When the panchayat is dissolved or superseded, it shall be reconstituted, in the manner provided in this Act. (2) When a panchayat is dissolved or superseded, all members of the panchayat shall from the date specified in the order, vacate their office as such members. (3) When the panchayat is dissolved or superseded, it shall be reconstituted, in the manner provided in this Act. (4) If a panchayat is dissolved or superseded— (a) all the powers and duties of the panchayat shall during the period of dissolution or supersession, as the case may be, exercised and performed by such person or persons as the State Government may from time to time appoint in that behalf, and (b) all property vested in the panchayat shall during the period of dissolution or supersession, as the case may be, vest in the State Government; and (c) on the dissolution, or, as the case may be, on the expiry of the period of supersession, the panchayat shall be reconstituted in the manner provided in this Act, and the persons vacating office shall be eligible for reelection.” 8. In the light of the aforesaid provisions of the Act, if the facts of the case are appreciated, it appears that in the meeting held on 28.03.2018, twenty one members of the Panchayat had remained present and two agenda items were unanimously passed, however as regards the approval of the annual budget estimates for the year 2018-19, objections were raised by some of the members. As a result thereof, the petitioner no. 1 who happened to be the President declared the meeting to be over and walked out of the meeting room along with other nine members. Thereafter, the Vice President along with the remaining ten members continued the said meeting and passed the resolution that the budget estimates were not approved. 9. The bone of contentions raised by learned Senior Advocate Mr.Kavina appearing for the petitioner is that once the meeting was declared over, the Vice President could not have continued with the meeting and passed any resolution. In the opinion of the Court, even if the said contention is accepted, the fact remains that the item no. 3 which pertained to the approval of the budget estimates was not cleared in the said meeting. There is nothing on record to suggest that the budget estimates were approved by the Taluka Panchayat. In the opinion of the Court, even if the said contention is accepted, the fact remains that the item no. 3 which pertained to the approval of the budget estimates was not cleared in the said meeting. There is nothing on record to suggest that the budget estimates were approved by the Taluka Panchayat. Therefore, there was clear failure on the part of the Panchayat to comply with the provisions of subsection (3) of Section 138 of the said Act. 10. As stated earlier, as per sub-Section (3) of Section 138, the Taluka Panchayat has to approve the budget estimates on or before 31st March of the current year, and as per subsection (4) thereof, when the Taluka Panchayat has failed to comply with the provisions under subsection (3), it is lawful for the State Government to form an opinion that the Panchayat is incompetent to perform the duties imposed on it or the functions entrusted to it under the said Act. 11. Now, it cannot be gainsaid that Section 253 empowers the State Government or any officer authorized by it to dissolve or supersede the Panchayat for a period not exceeding six months, if in the opinion of the State government the Panchayat is incompetent to perform the duties imposed on it or the functions entrusted to it under the said Act. In the instant case, the Lakhani Taluka Panchayat having failed to approve the budget estimates on or before 31st March for the current year 2018, it was absolutely lawful for the State Government or the respondent who was authorised by the State Government to press into service the deeming provision contained in Section 138(4) and to form an opinion that the Panchayat was incompetent to perform the duties imposed on it or the function entrusted to it under the provisions of the said Act, for superseding it for a period of six months as per Section 253(1) of the said Act. 12. The submission of learned Advocate Mr. Kavina that merely because some of the members did not cooperate to approve the budget, it could not be said that the Panchayat was incompetent to perform its duties, cannot be accepted. Section 253 empowers the State Government to dissolve or supersede the Panchayat on the grounds stated therein. In the opinion of the Court, the legislature has purposefully contemplated various situations in Section 253. Section 253 empowers the State Government to dissolve or supersede the Panchayat on the grounds stated therein. In the opinion of the Court, the legislature has purposefully contemplated various situations in Section 253. The Taluka Panchayat being incompetent to perform its duties is different from Taluka Panchayat making persistent default in the performance of its duties. It is pertinent to note that as per Section 140, no sum could expended by or on behalf of the Panchayat unless such sum is included in the budget estimates approved under Section 138 or 139, except in case of pressing emergency. Hence, unless the budget is approved under Section 138, the Taluka Panchayat is unable to make any expenditure to perform its duties and therefore incompetent to perform its duties imposed on it. For performance of other duties under the Act, the Taluka Panchayat could be given other opportunity but on account of non-approval of budget, the Panchayat would be incompetent to perform its duties, in view of specific bar contained in Section 140 of the Act. 13. Though the decision of respondent in superseding the Panchayat has been assailed by the learned Senior Advocate Mr. Kavina in his another limb of argument that there was no meaningful or effective consultation of the District Panchayat, the Court does not find any substance in the said submission also. As transpiring from the minutes of the meeting held by the District Panchayat, Banaskantha, on 21.07.2018, though the District Panchayat had received the letter dated 28.04.2017, reporting that the Lakhani Taluka Panchayat had failed to approve the budget for the year 2018-19 and though the Development Commissioner, Gandhinagar had also submitted the proposal for superseding the said Panchayat under Section 253 of the said Act, the executive committee of the District Panchayat, Banaskantha resolved not to take any decision till the next meeting. If the District Panchayat does not take decision, though consulted, it could not be said that the respondent Development Commissioner had failed to consult the District Panchayat or failed to adhere to the provisions contained in Section 253 of the Act. The provision does not require concurrence of District Panchayat before exercising the powers under Section 253. If the District Panchayat does not take decision, though consulted, it could not be said that the respondent Development Commissioner had failed to consult the District Panchayat or failed to adhere to the provisions contained in Section 253 of the Act. The provision does not require concurrence of District Panchayat before exercising the powers under Section 253. There cannot be any disagreement to the proposition of law laid down by the Supreme Court in case of State of Madhya Pradesh (supra) to the effect that the legally elected body could not be ousted by an illegal order, however the said decision has no application to the facts of the present case, as the impugned order passed by the respondent could not be said to be illegal from any angle. 14. In the instant case, the respondent after following the due process of law as contemplated under the statutory provisions of the said Act had recorded subjective satisfaction for forming an opinion that the Lakhani Taluka Panchayat had failed to comply with the provisions contained in subsection 3 of Section 138 by not approving the budget estimates on or before 31st March for the year 2018-19 and therefore was incompetent to perform the duties imposed on it or the functions entrusted to it under the provisions of the said Act and therefore, was liable to be superseded under Section 253 of the said Act. 15. The Court also does not find any substance in the submission of Mr.Kavina that the impugned order being in violation of the principles of natural justice was vitiated. It is not disputed that the respondent had by the notice dated 02.05.2018 called upon the Taluka Panchayat to show cause as to why the proceedings under Section 253 read with Section 138(4) should not be initiated for not approving the budget for the year 2018-19. Pursuant to the said notice, the twenty one members of the Taluka Panchayat resolved in the meeting held on 21.05.2018 that the budget was not approved. The respondent thereafter had fixed the hearing on 23.07.2018. On 23.07.2018, the petitioner no. 1 on behalf of other 9 members had remained present before the respondent and sought adjournment on the ground that he wanted to engage an advocate. The respondent therefore had granted adjournment in the interest of justice and kept the hearing on 07.08.2018. On the said day the petitioner no. On 23.07.2018, the petitioner no. 1 on behalf of other 9 members had remained present before the respondent and sought adjournment on the ground that he wanted to engage an advocate. The respondent therefore had granted adjournment in the interest of justice and kept the hearing on 07.08.2018. On the said day the petitioner no. 1 instead of remaining present in person or through his advocate sent an application for adjournment on the ground that his brother was operated. It appears from the medical certificate produced on record that his brother was under the treatment of Dr. K.S. Patel from 02.08.2018 to 03.08.2018 and that he was advised rest from 03.08.2018 to 10.08.2018. There is nothing to suggest that his brother had undergone any operation during the said period. The said excuse for not remaining present before the respondent on the ground that his brother was operated, does not find any support from the said medical certificate. Be that as it may, the petitioner no. 1 being the President of the Panchayat was very much aware about the legal consequences of not remaining present personally or through his advocate. If he had chosen not to reply to the show cause notice or remain present on the dates of hearing fixed by the respondent, it could not be said that he was denied the opportunity of hearing. There is also nothing on record to suggest that the petitioner no. 1 had ever asked for the copies of the affidavits field by the 12 members of the Panchayat and he was denied the same. Under the circumstances, by no stretch of imagination could it be said that there was violation of the principles of natural justice at the instance of the respondent before passing the impugned order. The court therefore does not find any illegality or infirmity in the impugned order dated 18.08.2018 passed by the respondent at Annexure A of the petition. 16. As regards the alternative prayer made for holding the elections at the earliest, it goes without saying that the respondent has to follow the statutory provisions for reconstitution of the Panchayat as contemplated under the said Act. In that view of the matter, the petition being devoid of merits is dismissed.