Shivangiben Chetankumar Patel vs State Of Gujarat

Gujarat High Court: 2019(2) GLR 865

An issue arose before the bench comprising of Justices Subhash Reddy and V.M.Pancholi is that whether any restriction is to be read into Section 56 of the Gujarat Panchayat Act, 1993, for moving no confidence motion against the elected Sarpanch, after election. 

Facts:

The Petitioner was elected as the Sarpanch of Sankheda Gram Panchayat, District Chhota Udepur. Immediately, after the first meeting and within a period of one month from the date of election, no-confidence motion was moved against her by the members of the Panchayat, without giving any reasonable time to discharge functions as Sarpanch, as required under section 55 of the Gujarat Panchayats Act, 1993.

The Single Judge Bench dismissed the petition of the petitioner having opined that when the legislature has thought it fit not to   restrict for any time, for moving no confidence after election, motion of no confidence can be moved against Sarpanch by giving notice in the prescribed format. The decision of the said Single Judge Bench was challenged by the Petitioner in the Letters Patent Appeal before the Division Bench of the High Court of Gujarat.

Challenging the action of moving no confidence motion, Counsel for the petitioner argued that considering the objects and reasons of the 73rd Constitutional Amendment Act, 1992, which mandates for the stability and continuity of functioning of the panchayat, an action of moving such no-confidence motion runs contrary to the 73rd Constitutional Amendment Act, 1992. Even in absence of any restriction of any period for moving such no confidence motion in Section 56 of the Gujarat Panchayats Act, reasonable period is to be read into and that unless elected Sarpanch is allowed to work for reasonable period, no such move can be permitted by the members to remove directly elected Sarpanch on the ground that they lost confidence on him/her.

The counsel while placing reliance upon Executive Engineer, Southern Electricity Supply Company of Orissa Limited and Anr. versus Sri Seetaram Rice Mill,reported as (2012)2 SCC 108, argued that provision under Section 56 of the Panchayat Act  is to be construed purposively and the “purposive construction” in the statue is certainly cardinal principle of interpretation.

It was argued by the Counsels for the Respondent that when the members of the Panchayat are not having confidence on the elected Sarpanch, it is always open for them to move on confidence motion at any time after election of Sarpanch. Further, in absence of any restriction of prohibition for moving no confidence motion against elected Sarpanch under section 56 of Gujarat Panchayats Act, 1993, the petitioner cannot claim any protection under election. Also the principle of ‘reading down’ would apply only when general words used in a statue or regulation can be confined in a particular manner so as not to infringe upon a constitutional right.

Final Verdict:

After considering the submissions made by the parties and drawing support from Vipul Chaudhary v/s. Gujarat Cooperative Milk Marketing Federation Limited & Ors, reported as (2015) 8 SCC 1, the court held that:

“Though   no   reasons   are   required   to   be mentioned   for   moving   no   confidence   motion,   but   unless   elected Sarpanch   is   allowed   to   work   for   reasonable   time,   moving   no confidence motion on the allegation that members of the Panchayat have lost confidence is illegal and arbitrary. If the same is permitted, it will result in vicious circle, as much as, there is no disqualification attached once Sarpanch is removed by way of no confidence motion, unlike disqualification attached to removal as contemplated under Section 57 of the Panchayats Act. It is fairly well settled that if a person is removed by way of no confidence motion, it is neither censure motion nor punitive once and it will not attach any disqualification for future contest.”

In absence of any restriction for a particular time under section 56 of the Act, what should   be   the   reasonable   time, within   which   time   no   confidence motion cannot be permitted, so as to read into section 56  of the Gujarat Panchayats Act?

The court held that “reasonable time is nothing but a time that is fairly required to do whatever is required to be done, conveniently under the permitted circumstances. Reasonable time varies from the contextual meaning, under which it is used.

Keeping the provisions of Gujarat Panchayats Act 1993 in mind, and executive functions entrusted to the elected Sarpanch under Section 55 of the Panchayat Act, along with the object of the 73rd Constitutional Amendment Act, 1992, i.e, continuity and stability of Panchayati Raj institutions, we deem it appropriate that reasonable time of one year should be considered as reasonable time, within which time, no motion could be permitted for removal of elected Sarpanch by way of no confidence motion as contemplated under section 56 of the Gujarat Panchayats Act from the   date   of   declaration   of   result.   Similarly,   once,   no   confidence motion is moved and defeated, same cannot be permitted for a period of one year from the date of such defeat.”

Senior Advocate Mr. S.N. Shelat assisted by Advocate Mr. Vikas Nair appeared for the Petitioner, Additional   Advocate   General   Mr. Prakash K. Jani represented State and Mr. Dhaval Dave, Senior Advocate appeared for the private respondents.