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2022 DIGILAW 576 (GUJ)

Desai Mahendrabhai Ramjibhai v. State Of Gujarat

2022-04-25

A.Y.KOGJE

body2022
JUDGMENT : 1. Rule. Ms.Jyoti Bhatt, learned AGP waives service of rule for the respondent-State and Learned advocate Mr.Naman Brahmbhatt waives service of rule for the respondent no.6. 2. This petition under Article 226 of the Constitution of India is filed challenging the order dated 09.03.2022 passed by the Regional Commissioner of Municipalities, Surat Zone in Appeal case No.6 of 2022 (Annexure-A). along with this petition two separate petition are filed by the president and vice-president of the nagarpalika challenging the very resolution of no confidence which the subject matter of this petition, the challenge is under Art.226 of the Constitution of India, these petitions were also heard along with this petition and is disposed by a separate order. 3. By the aforesaid order, in exercise of powers under Section 258(1) of the Gujarat Municipalities Act , 1963 (herein after referred to as the “Act”) had issued show-cause notice fixing the hearing of the appeal on 28.03.2022 and at the same time, had stayed the Resolution No.51(1) & (2) passed in the special general meeting held on 03.03.2022 by Aamod Municipality. 4. The primary contention of the petitioner is that as per the pronouncements of this Court in case of Geetaben L. Rathwa reported in 2005 (9) GHJ 414 and in case of Jayendrasinh Bhupatsinh Diama reported in 2012 (2) GLR 1096 and that against the resolution of on the motion of no confidence, the appeal or the revision cannot be maintained. 5. It is a case where the election of Aamod Municipality consisting of 24 members was held and the result of the election thus, held was declared by the notification dated 02.03.2021. The election of the President and Vice President was held on 17.03.2021 and one Maheshbhai Dhulabhai Patel and Ushaben Sureshbhai Patel came to be elected as President and Vice President, respectively. The motion of no confidence was moved by 12 members against the President and Vice President of Aamod Municipality on 09.02.2022 invoking Section 36(1) of the Act. 6. On such motion, a special general meeting came to be conveyed on 03.03.2022 as per Section 51(2) of the Act for which a notice dated 25.02.2022, as provided under the Act came to be issued. 6. On such motion, a special general meeting came to be conveyed on 03.03.2022 as per Section 51(2) of the Act for which a notice dated 25.02.2022, as provided under the Act came to be issued. In the special general meeting conveyed on 03.03.2022, all 24 members had remained present and the motion of no confidence came to be passed purportedly by raising a fingers and 17 members purportedly supported the motion of no confidence, and therefore, the motion of no confidence was treated to have been passed with 2/3 majority. 7. It is a case where the motion of no confidence passed by the Aamod Municipality came to be challenged by filing an Appeal Case No.6 of 2022 invoking section 258(1) of the Act before the Regional Commissioner, Surat Zone and the Regional Commissioner passed an order dated 09.03.2022, which is impugned. 8. Learned advocate for the petitioner has argued that the Regional Commissioner has no jurisdiction under Section 258(1) of the Act to take cognizance of the challenge to a motion of no confidence and as there is no jurisdiction, the Regional Commissioner ought not to have issued a notice and passed an order staying the operation of the motion, which was adopted by 2/3 majority on the floor of the municipality. 9. It is argued that any interference by the executive by invoking the power under Section 258 of the Act would run completely against the basics of democratic principles on the basis of which the elected representatives are to discharge their duties in the municipality. It is argued that the interference by the executive in passing the impugned order has a potential of leading to unhealthy and undemocratic practice like horse trading. It is lastly submitted that by relying upon the decision of this Court in case of Geetaben Rathwa and a full bench decision in case of Jayendra Bhupatsinh that the decisions barred the exercises of powers by the executive by invoking the sections. 10. As against this, learned advocate for the respondent no.6 and learned AGP for the respondent-State have submitted that by raising a preliminary objections on the maintainability of the petition on the ground of existing alternative remedy, as provided under Section 258(3) of the Act. 10. As against this, learned advocate for the respondent no.6 and learned AGP for the respondent-State have submitted that by raising a preliminary objections on the maintainability of the petition on the ground of existing alternative remedy, as provided under Section 258(3) of the Act. It is submitted that the motion, which was passed was against the principles of law, as established by this Court, as the motion was brought within the period of 1(one) year of the members of the municipality assuming the office, and therefore, when motion itself is not supported by law, the interference at this stage by the Court, would be against the principle of democracy, where the rights of elected representatives would be curtailed. It is submitted that this aspect of motion being moved within a period of 1(one) year has been suppressed by the petitioner and that itself is a ground of dismiss such petition. 11. Learned advocate for the respondent no.6 has submitted that very full bench decision relied upon by the petitioner helps the respondent, wherein it is stated in Paragraph No.32 that once the power is exercised by the Regional Commissioner then the only option available to the petitioner is to challenge the same by way of alternative remedy, as the decision taken in exercise of Section 258 of the Act would a decision, which can be challenged by way of revision. 12. The petitioner has placed on record the draft amendment along with order dated 06.04.2022 by the District Municipal Election Officer and Collector, Bharuch declaring the election. Though the amendment was placed on record, there was no further argument to allow the draft amendment, and therefore, the Court would refrain from addressing the same by treating it to be issue raised by the petitioner before this Court. This perhaps appears to be the attempt to keep “ace up his sleeves” or perhaps the alternative remedy available to him being a separate cause of action to challenge it by way of separate proceedings. 13. Having considered the rival submissions of the learned advocates for the parties and having perused the documents on record, the mute question for decision is whether in the facts of the case, the exercise of powers under Section 258 of the Act can be considered to be justified and be considered as exercise of powers in accordance with the provision. Having considered the rival submissions of the learned advocates for the parties and having perused the documents on record, the mute question for decision is whether in the facts of the case, the exercise of powers under Section 258 of the Act can be considered to be justified and be considered as exercise of powers in accordance with the provision. The facts narrated in the preceding paragraphs with regard to the chronology are undisputed, meaning thereby, the holding of the election of the municipality, and thereafter, the election to the post of President and Vice President, moving a notice of motion of no confidence adopting the motion with 2/3 majority. The challenge to such motion by the members before the Regional Commissioner of Municipalities. The challenge by 3(three) members before the Regional Commissioner was on the ground that under the misunderstanding and misconception they had raised the fingers in support of the motion of no confidence by misunderstanding that they were called upon to raise fingers in support of the President and Vice President. 14. Considering those applications, the Regional Commissioner taking cognizance and in exercise of powers under Section 258(1) of the Act issued notice making it returnable on 28.03.2022 and in the meantime, Resolution No.51(1) & (2) on the subject no.1 of special general meeting of Aamod Municipality dated 03.03.2022 came to be suspended till the final hearing of the appeal. Section 258(1) of the Act provides for the powers of municipality to suspend the execution of orders etc. of the municipalities where the Regional Commissioner is of the opinion that the execution of any order or resolution of a municipality, or the doing of anything which is about to be done or is being done by or on behalf of a municipality, is causing or is likely to cause injury or annoyance to the public or to lead to a breach of the peace or is unlawful, the Regional Commissioner may by order in writing under his signature suspend the execution or prohibit the doing thereof and where the execution of any work in pursuance of the order or resolution of the municipality is already commenced or completed direct the municipality to restore the position in which it was before the commencement of the work. Section 258(3) provides that against the order made by the Regional Commissioner under sub-section (1) the municipality may prefer an appeal to the Commissioner within [thirty days] from the date on which it receives a copy of the order and the Commissioner may on such appeal being preferred rescind the order or may revise or modify or confirm the order or direct that the order shall continue to be in force. 15. The decision of full bench of this Court in case of Jayendrasinh Bhupatsinh had examined this concept in relation to the similar provision of no confidence motion in terms of Gujarat Panchayats Act, 1993. After considering the reference made to the full bench, the question that was addressed by the full bench was classified in two categories one being the maintainability of the appeal under Section 242 of the Gujarat Panchayats Act against the 'motion of no confidence' passed by Gram Panchayat under Section 56 of the Gujarat Panchayats Act or against the 'motion of no confidence' passed by Taluka Panchayat under Section 70 of the Gujarat Panchayats Act. The other question addressed was of maintainability of the revision before the State Government under Section 259 of the Gujarat Panchayats Act against the 'motion of no confidence' passed by the District Panchayat under Section 84 of the Gujarat Panchayat Act. The full bench also proceeded to address incidental question regarding the maintainability of the revision under Section 259 of the Gujarat Panchayat Act in a case where the power are already exercised by the Appellate Committee under Section 242 of the Gujarat Panchayat Act against the 'motion of no confidence'. By treating the democratic principles to be the same for the local self governing bodies, the full bench proceeded to examine the word “Resolution” along with the word “decision” closely vis-a-vis exercise of powers by an executive in this regard. In Paragraph No.18, the full bench held ad under:- “18. Further Sub-section (3) of Section 62 additionally provides for minitization of the proceedings made and signed in accordance with law and it does not refer to any particular resolution specifically, nor the legislature has used the language of “resolution”. 19. Under these circumstances, it appears to us that it is true that the motion of no confidence is to be considered by any Panchayat at its meeting. 19. Under these circumstances, it appears to us that it is true that the motion of no confidence is to be considered by any Panchayat at its meeting. It is also true that whether the motion is carried by requisite majority or not is to be reduced into the proceedings of Gram Panchayat by minitization of the same, but such minitization of the proceedings for carrying the motion of no confidence by necessary consequence cannot be termed as “resolution” or a decision of a Gram Panchayat. The word ”resolution” or “decision” pre-supposes the existence of any dispute or controversy to be resolved. Unless there is any controversy to be resolved or any dispute to be decided, the minitization of the proceedings at the meeting cannot be termed for all purpose a resoltuion or a decision of any Panchayat. In Law Lexican of P. Ramanatha Aiyar the word “decide” has been defined as 'to determine, to form a definite opinion, to render judgement; to give judgement for or against a party to suit or other proceeding in Court; to determine (a question, controversy or cause).” Further, the meaning of the word “decide”, “determine”, “resolve” is; “resolution betokens a choice made between action and inaction, and is opposed to doubt, reluctance or inaction. Determination betokens a choice made between motives and opposed to vacillation, uncertainty. Decision is final and irrevocable act of the will or judgement, and is opposed to indecision or hesitation (Smith. Syn. Dis.). In the same book, the word 'resolution' is defined as: “something that is resolved; something that is determined upon.” At the first brush, one might get an impression that in a case where the motion of no confidence is to be carried at the meeting of a Panchayat, the Panchayat may be required to decide as to whether the motion is passed by the requisite majority or not and, therefore, it may be termed as resolution or “resolution of a Panchayat”. But the detailed scrutiny would show that the action for carrying the motion of no confidence is not by the collective body of the Panchayat as a whole, but is by the individual member of a Panchayat whether to support the motion of no confidence against the person or not and thereafter if the requisite number of members of the Panchayat has supported the motion, such motion is automatically carried. It is not depended upon any collective decision of the body of Gram Panchayat as a whole. The aforesaid makes the distinction in consideration of the motion of no confidence to be carried by the requisite majority. Therefore, it appears to us that when the legislature has consciously not used the word 'resolution', but has used the words 'motion to be carried by requisite majority' the proper meaning deserves to be given. Under these circumstances, it is not possible for us to accept the contention of the learned Counsel for the respondent No.5 that carrying of the motion by requisite majority is also a collective action by resolution of the Gram Panchayat or a decision of Gram Panchayat to pass the motion of no confidence. 20. If the action at the meeting cannot be termed as a collective decision of a Panchayat, then as a natural consequence it would not fall within the ambit of scope of appeal under Section 242 of the Act, which only is available against any order or decision of a Village or Taluka Panchayat. In our view, carrying of motion of no confidence by requisite majority of the members of the Panchayat in view of the expressed language of the section for consideration of motion of no confidence can neither be termed as “an order”, nor can be termed as “any decision of a collective body of a Panchayat”. 21. The resolution at the meeting of the Panchayat would also pre-suppose the collective decision of the whole body, which is not the requirement as provided by the relevant provisions of the statute for consideration of motion of no confidence. Further, after the motion is carried, the collective body of the Panchayat has not to take any action in furtherance thereof, but the statute itself expressly provides for the consequence of carrying of the motion of no confidence by requisite majority, inasmuch as after the expiry of the period of three days the person would cease to hold the office and his post is deemed to have become vacant.” Ultimately, the full bench expressed its view by holding as under:- “30. As such in view of the interpretation made by us of the relevant provisions of the Act namely; for carrying out motion of no confidence, the contention cannot be accepted for two reasons; one is that Rule 21 provides for only reporting of the names of the persons, who voted for or against the motion and it in no manner can be read to dilute the language for carrying of the motion of no confidence and the effect thereof, nor can be termed to attract the collective decision of a Gram Panchayat as against the individual action of a member, who supported or opposed the motion of no confidence at the meeting. Further, such procedural aspects as provided by the Rule cannot be given effect to dilute the expressed provisions of statute made by the legislature. Apart from the above, it is hardly required to be stated that the rule cannot run counter to the express provisions of statute and if the rule making authority has used the word “decision of Panchayat” under Rule 21 as against the legislature making use of the word “motion is carried by majority of not less than 2/3rd of total number of members of the Panchayat”, such language used can be termed as ultra vires the powers to that extent. It is well settled principles of interpretation of statute that rule has to give way for giving effect to the statutory provisions. Therefore, we find that Rule 21 deserves to be read down to the effect that the language used in Rule 21 (decision of Panchayat) does not convey to mean that when for motion of no confidence if carried by requisite majority, would amount to the decision of the Panchayat, but Rule 21 only provides for reporting of the minitization of the proceedings at the meeting and the individual stand of each member of the Panchayat for supporting or against the motion of no confidence.” 16. The issue, therefore, raised by the petitioner is clearly covered in the answer given by the full bench of this Court, and therefore, binding in the facts of the present case. 17. The issue, therefore, raised by the petitioner is clearly covered in the answer given by the full bench of this Court, and therefore, binding in the facts of the present case. 17. The argument offered by the respondents by drawing attention of this Court to Paragraph No.32 of the said judgment, it would be appropriate to consider the circumstances in which the observations were made by the full bench in Paragraph Nos.31 & 32, where in the facts of those case powers under Section 242 of the Gujarat Panchayat Act was already exercised and had assumed the shape of an order of District Panchayat under Section 242 of the Gujarat Panchayat Act, thereby, giving rise to the jurisdiction of the State Government under Section 259 of the Gujarat Panchayats Act, and therefore, in Paragraph No.31, the full bench concluded, in case where the District Panchayat has already exercised the powers under Section 242 of the Gujarat Panchayat Act and has taken decision under Section 242 of the Gujarat Panchayat Act in connection with carrying of any motion of no confidence against Sarpanch or Up-Sarpanch of a Gram Panchayat or the President or Vice-President of a Taluka Panchayat or District Panchayat, the revision before the State Government under Section 259 of the Gujarat Panchayats Act would not be competent. 18. Considering the stage at which the petition is brought before this Court, it cannot be said that the Regional Commissioner has exercised the powers under Section 258 of the Act and has given the decision in connection with the motion of no confidence, and therefore, in the opinion of the Court, the impugned order dated 09.06.2022 cannot be said to have taken a shape of an order under Section 258 of the Act so as to bring such order within the fold of the expressed opinion of the full bench in case of Jayendrasinh Bhupatsinh Diama. 19. The argument though offered by the learned advocate for the respondent no.6 and learned AGP for the respondent State to relegate the petitioner to file an appeal under Section 258(3) though attractive cannot be accepted in view of the fact that the Court is of the opinion that the very exercise of powers under Section 258 of the Act on the issue of motion of no confidence is without jurisdiction. 20. 20. It could also be argued that the impugned order is only at the stage of issuance of notice and the next returnable date is also fixed, and therefore, it was open for the petitioner to raise all the issues before the Regional Commissioner himself including the issue of maintainability of an appeal in view of pronounced judgments of this Court. 21. When the petitioner has approached this court with the specific contention of lack of jurisdiction of the Regional Commissioner under Section 258 of the Act to examine the challenge of no confidence motion whether passed or rejected and the expressed pronouncement of law by the full bench of this Court, this Court does not see any reason why the proceedings under Section 258 of the Act before the Regional Commissioner on the subject matter of this petition should continue any further. 22. One more reason that the Court would interfere at this stage is the basic principle of democracy, where there is friction between the executive and the elected body. The decisions, which are on the floor of the house by the democratic principles and procedure set and adopted may not be brought in question before an executive, which may give a scope which may lead to subjugation by the democratically elected body to the supremacy of executive. 23. The petition stands allowed. The impugned order dated 09.03.2022 as well as proceeding thereof are ordered to be quashed and set aside. Rule is made absolute to the aforesaid extent.