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2011 (3) GCD 2503 (Guj)
Hon’ble Mr. Justice M.R. Shah
Govindbhai Chhaganbhai Patanwadia
Versus
State of Gujarat Through Deputy Secretary & Ors.
Special Civil Application No. 5904 of 2010—Decided on 01/03/2011
Gujarat Panchayat Act, 1993 — Sections 104, 200, 241 to 245, 243(2)(5) and (7) — Gujarat District Panchayat Appeal Committee (Procedure) Rules, 1995 — Rules 3, 5(2), 5(5) Clauses I and II, 6 and 7 — Charge of the Sarpanch of Gram Panchayat to petitioner — Order passed by Appellate Committee of District Panchayat — Order not implemented because not signed by Secretary of Appellate Committee on ground that it is illegal and contrary to the provisions of the Act — Sustainability — Finding of — Court held that action of the Secretary not to sign the order and to give a descend note on merit of the order is not valid — He has no any adjudicatory power and can not decide or opine any thing on merits of Appeal in consonance with the provisions of Rules — A Secretary has to sign the order passed by the Appellate Committee of the District Panchayat and thereafter it can be treated as a decision of the Panchayat — So far as directions to respondent authorities to give charge of Sarpanch or to petitioner is concerned the document produced is not the order of Appellate Committee but same are minutes of the meeting — It further requires a formal order has to be passed by Appellate Committee duly signed by Secretary for implementation — Court, therefore, passed consequential order directing Appellate Committee of District Panchayat to pass a formal order — When order is passed same will be signed by Secretary of the Appellate Committee for implementation of the said order.
Held :
The Deputy District Development Officer has been appointed as Secretary of the Appellate Committee of the District Panchayat, Bharuch. Considering the aforesaid provisions, it appears that it is the Appellate Committee of the District Panchayat constituted under Section 243 of the Act, 1993 which has to adjudicate and decide the appeal on merits in consonance with the provisions of the Rules, 1995, more particularly, Rule 7 reproduced herein above and it will be the decision of the Appellate Committee of the District Panchayat which is required to be signed by the Secretary. Thus, considering the aforesaid provisions, it can be safely said that the Secretary of the Panchayat has no any adjudicatory power and/or cannot decide and/or opine anything on merits of the Appeal. A Secretary has to sign the order passed by the Appellate Committee of the District Panchayat and thereafter it can be treated as a decision of the Panchayat. Even if the Secretary of the Panchayat is of the opinion that decision of the Appellate Committee of the Panchayat is erroneous and/or illegal, he has no jurisdiction to opine on merits of the case and on merits of the decision of the Appellate Committee and he cannot refuse to sign the order of the Appellate Committee. On considering the provisions of the Rules and the procedure to be followed, it appears that a Secretary has to perform only ministerial duties as provided under Rule 5 of the Rules and under Clause ‘d’ of Rule 7 of the Rules. Beyond that the Secretary has no other jurisdiction and/or power. Otherwise, the Secretary would be exercising powers which is not vested in him and it will be giving a Vito power to the Secretary against the decision of the Appellate Committee of the District Panchayat who are not less than three members. Therefore, the action of the Secretary of the Appellate Committee of the District Panchayat, Bharuch not to sign the order of the Appellate Committee of District Panchayat decided on 12.04.2010 and to give a descend note on merits of the order of the Appellate Committee of District Panchayat, which cannot be sustained. [Para 7.3]
What is produced on record is minutes of the meeting dated 12.04.2010 which cannot be said to be order passed under Section 243 of the Act and as such it is a proceeding of the meeting of the Appellate Committee of District Panchayat, Bharuch in which by resolution No. 6, the decision has been taken to continue the petitioner as the Sarpanch and it has also been decided to pass a separate order. Thus, as per the said decision of the Appellate Committee of the District Panchayat, Bharuch recorded in the minutes of the proceedings dated 12.04.2010, a further order is required to be passed by the Appellate Committee of the District Panchayat on an Appeal preferred by the petitioner which is required to be signed by the Secretary as provided under Clause ‘d’ of Rule 7. Therefore, as such straightway no relief can be granted to the petitioner directing the respondents to give charge to the petitioner of a Sarpanch of a Bholav Gram Panchayat and to permit the petitioner to perform its duties as Sarpanch of the Bholav Gram Panchayat. [Para 7.4]
Law Laid Down :
The Secretary of the Panchayat has no any adjudicatory power to decide any thing on merit of Appeal.
M.R. Shah, J.—Leave to amend.
1.0 By way of this petition under Article 226 of the Constitution of India, petitioner has prayed for an appropriate writ, direction or order directing the respondent authorities to comply, obey and implement the order dated 12.04.2010 passed by the Appellate Committee of the Bharuch District Panchayat and to direct the concerned respondents to give the charge of the Sarpanch of Bholav Gram Panchayat to the petitioner forthwith.
2.0 Facts leading to filing of the present Special Civil Application in nut-shell are as under:
2.1 Petitioner was the Sarpanch of Bholav Gram Panchayat. That No Confidence Motion was moved against him and the same was passed in meeting which was convened on 03.03.2009. That being aggrieved and dissatisfied with passing of a No Confidence Motion against the petitioner, petitioner preferred Revision Application before the State Government who vide order dated 28.04.2009 held in favour of the petitioner and declared that the No Confidence Motion passed against the petitioner was contrary to the provisions of Gujarat Panchayat Act (hereinafter referred to as “Act, 1993”). That the order passed by respondent No. 1 State Government dated 28.04.2009, came to be challenged by some members of the Bholav Gram Panchayat by way of Special Civil Application No. 4436/2009 and the learned Single Judge (Coram: D.A. Mehta, J. as he then was) allowed the said Special Civil Application and quashed and set aside the order passed by the Revisional Authority dated 28.04.2009 by observing that the Revisional Authority could not have exercised jurisdiction in light of statutory scheme of appeal before the Appellate Committe of the District Panchayat provided in Sections 242 to 244 of the Act,1993 however, leaving it open to the petitioner to approach the Appellate Authority and seek appropriate relief. It appears that thereafter the petitioner preferred an Appeal before the Appellate Committee of District Panchayat against the resolution passed by the Gram Panchayat, Bholav to pass No Confidence Motion against the petitioner. It appears that in the said Appeal, the petitioner also submitted an application for interim stay and the proceedings of District Panchyat, Bharuch vide order dated 02.07.2009 granted stay in favour of the petitioner till the Appellate Committee meets and decides the appeal of the present petitioner (Copy of such stay order is not placed on record). It appears that thereafter the petitioner wrote a letter to respondent No. 4 on 08.07.2009 permitting the petitioner to work as Sarpanch of the village Panchayat. It appears that Taluka Development Officer, Bharuch passed an order dated 08.07.2009 informing the petitioner that the charge of the Sarpanch of Bholav Gram Panchayat should be handed over to the Deputy Sarpanch. That the petitioner preferred Special Civil Application No. 11846/2009 before this Court seeking direction that the respondent authority should not restrain the petitioner from performing as Sarpanch of Bholav Gram Panchayat and requested to quash and set aside the order dated 02.07.2009. That the said Special Civil Application came to be disposed of by this Court by order dated 01.12.2009 as the Appeal of the petitioner was pending and this Court directed the Appellate Committee to decide and dispose of the said Appeal within a period of six months. It is the case on behalf of the petitioner that thereafter the Appeal of the petitioner has been disposed of by the Appellate Committee of the District Panchayat, Bharuch vide order dated 12.04.2010, by which the Appellate Committee has allowed the said Appeal of the petitioner and has quashed and set aside the No Confidence Motion dated 02.03.2009 passed against the petitioner, however, the concerned respondents are not allowing the petitioner to perform his duties as a Sarpanch and is not giving charge of the Sarpanch to the petitioner and therefore, the petitioner has preferred the present Special Civil A
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