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2022 DIGILAW 1420 (GUJ)

Anitaben Pravinbhai Solanki v. State of Gujarat

2022-10-17

SANDEEP N.BHATT

body2022
ORDER : 1. The petitioner has mainly challenged the no confidence motion passed on 08.07.2022. 2. Heard learned advocates for the respective parties. 3.1 Mr. Naman Brahmbhatt, learned advocate for the petitioner has submitted that the petitioner is a lady, elected as a member of the Panchayat and declared as Sarpanch on 21.12.2021 unanimously by all the elected members. He has further submitted that the charge is taken by the petitioner on 19.01.2022 and the impugned communication is moved by the members of the panchayat on 30.06.2022. 3.2 He has submitted that within a period of six months, no confidence motion against the Sarpanch – petitioner is moved by referring the provisions of Section 55 and 56 of the Gujarat Panchayats Act, 1993. 3.3 He has heavily relied upon the judgment of this Court in the case of Shivangiben Chetankumar Patel Versus State of Gujarat reported in 2018 (2) GLH 523 , more particularly Para : 39 thereof and has submitted that such no confidence motion could be proposed within a span of one year irrespective of allegations against the Sarpanch. 3.4 He has submitted that this petition may be allowed. 4.1 Mr. Munshaw, learned advocate for respondents no.2 and 3 – Panchayat has submitted that out of nine members, no confidence motion moved by seven members of the panchayat on 13.06.2022 and it was submitted to respondents no.2 and 3 by letter dated 13.06.2022. 4.2 He has further submitted that as the petitioner failed to take appropriate decision with regard to a date of meeting of general body of the Gram Panchayat for consideration of no confidence motion within fifteen days from 13.06.2022, the respondent no.3 addressed a letter to respondent no.2 on 28.06.2022 to take appropriate decision in accordance with the provisions of Section 56(5)(k) of the Act. 4.3 He has further submitted that thereafter, respondent no.3 has addressed a letter to respondent no.2 on 05.07.2022 for appointment of a Presiding Officer for a meeting to be held on 08.07.2022 and passing of no confidence motion against the petitioner in the said meeting and one Mr. Firoz B. Patel, Extension Officer (Panchayat), Jambusar Taluka Panchayat was appointed as presiding Officer vide order dated 07.07.2022. 4.4 He has also submitted that Taluati-cum-Mantri of the Gram Panchayat addressed a letter infomring about the proceedings of the meeting on 08.07.2022 and passing of no confidence motion. Firoz B. Patel, Extension Officer (Panchayat), Jambusar Taluka Panchayat was appointed as presiding Officer vide order dated 07.07.2022. 4.4 He has also submitted that Taluati-cum-Mantri of the Gram Panchayat addressed a letter infomring about the proceedings of the meeting on 08.07.2022 and passing of no confidence motion. He has submitted that immediately, an order dated 12.07.2022 was passed to the effect that Up-Sarpanch of the Gram Panchayat would take over the charge of the Sarpanch in accordance with the provisions of Section 56 of the Act and thereupon, Up-Sarpanch – Mr. Vijaybhai K. Waghela took over the charge of the post of Sarpanch of Gram Panchayat on 14.07.2022. 4.5 He has submitted that in view of the above facts, this petition may not be entertained, as the motion of no confidence is acted upon now. He has submitted that this petition may be dismissed. 5.1 Mr. Sikligar, learned advocate for the contesting respondents no.4 to 11 has, by referring to his affidavit in reply, submitted that though the petitioner was a Sarpanch, her husband was handling day-to-day affairs of the Panchayat in place of the petitioner. He has submitted that the husband of the petitioner was threatening the members and also abusing the powers. He has submitted that by putting the forge signature of the petitioner, her husband was looking to the affairs of the Panchayat. He has submitted that if such situation will continue, then interest of the Panchayat will be jeopardise. 5.2 He has relied upon the decision of Hon’ble Apex Court in the case of Bhanumati Versus State of Uttar Pradesh reported in (2010) 7 SCR 585 , more particularly Para : 72 thereof and has submitted that the petitioner should not be allowed to misuse the office through her husband and therefore, majority of the members – out of nine, seven members have supported the no confidence motion. 5.3 He has referred to the provisions of Section 55 and 57 of the Gujarat Panchayats Act, 1993 and has submitted that this petition may be dismissed and no interim relief may be granted to the petitioner in such facts. 6. At this stage, Ms. 5.3 He has referred to the provisions of Section 55 and 57 of the Gujarat Panchayats Act, 1993 and has submitted that this petition may be dismissed and no interim relief may be granted to the petitioner in such facts. 6. At this stage, Ms. Bhatt, learned AGP for the State has drawn the attention of this Court to the decision of this Court in the case of Shivangiben Chetankumar Patel (supra), which is relied by learned advocate for the petitioner, is now referred to the Larger Bench vide order dated 06.07.2022 recorded on Letters Patent Appeal No.658 of 2022. She has submitted that the ratio laid down in the said judgment is under further consideration and no relief, much less, interim relief, can be granted to the petitioner. 7.1 I have heard learned advocates for the respective parties. I have gone through the averments made in the memo of the present petition as well as the judgment relied by learned advocate for the petitioner in the case of Shivangiben Chetankumar Patel (supra) and the affidavit in reply filed by the contesting respondents, this Court finds that no confidence motion is already passed and acted upon and further that Up-Sarpanch has already taken the charge as Sarpanch. This Court further finds that there are serious allegations of forging the signature of the petitioner by her husband and also of misbehaving with the other elected members of the Panchayat, which can be seen from the no confidence motion itself as out of nine members, seven members have caste their votes against the petitioner. The petitioner has misused the powers and authorities given to the local body for the betterment of the public at large. 7.2 It is fruitful to refer to the provisions of Section 55 of the Gujarat Panchayats Act, 1993 which is as under : “55. Executive functions of Sarpanch and Upa-Sarpanch : (1) Save as otherwise expressly provided by or under this Act, the executive power, for the purpose of carrying out the provisions of this Act and the resolutions passed by a village panchayat shall vest in the Sarpanch thereof who shall be directly responsible for the due fulfilment of the duties imposed upon the panchayat by or under this Act. In the absence of the Sarpanch his power and duties shall, save as may be otherwise prescribed by rules, be exercised and performed by the Upa-Sarpanch.1993 (2) Without prejudice to the generality of the foregoing provision:- (a) the Sarpanch shall- (i) preside over and regulate the meeting of the panchayat; (ii) exercise supervision and control over the acts done and actions taken by all officers and servants of the panchayat; (iii) incur contingent expenditure upto 1 [five hundred rupees] at any one occasion; (iv) operate on the fund of the panchayat including authorisation of payment, issue of cheques and refunds; (v) be responsible for the safe custody of the fund of the panchayat; (vi) cause to prepared all statements and reports required by or under this Act ; (vii) exercise such other powers and discharge such other functions as may be conferred or imposed upon him by this Act or rules made thereunder, (b) the Upa-Sarpanch shall- (i) in the absence of the Sarpanch preside over and regulate the meetings of the panchayat; (ii) exercise such of the powers and perform such of the duties of the Sarpanch as the Sarpanch may, from time to time delegate to him ; (iii) in case the Sarpanch has been continuously absent from the village for more than fifteen days or is incapacitated to exercise the powers and perform the duties of the Sarpanch. (3) In the absence of both the Sarpanch and the Upa-Sarpanch, every meeting of the panchayat shall be presided over by such one of the members present as may be chosen by the meeting to be Chairman for the occasion. (4) Notwithstanding anything contained in clause (iv) of sub-section (2), no money shall be withdrawn from the fund of the panchayat except with the signature of the 2 [Sarpanch or a member of the panchayat authorized in that behalf by the panchayat, and the Secretary].” 7.3 It also prima facie appears from the record that the petitioner herself was not discharging her duties as a Sarpanch, but her husband was working as de-facto as a Sarpanch. 7.4 In totality of the circumstances and the fact that the ratio of the judgment in the case of Shivangiben Chetankumar Patel (supra) is now before the Larger Bench for further consideration and the fact that there is no prayer sought for by the petitioner about the writ of prohibition as required under the law for prohibiting the person/s who is entrusted the duty to function as a Sarpanch (who is in the present case now Up-Sarpanch), this Court finds that there is no reason to exercise the extra-ordinary jurisdiction or to interfere in the impugned motion of no confidence as prayed for in the present petition, otherwise the provisions of the Act will be frustrated. This Court also finds that the impugned no confidence motion is already acted upon and therefore, the present petition is found meritless and is required to be dismissed. 8. For the reasons recorded above, the present petition is dismissed.