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2012 (1) GCD 713 (Guj)
[Full Bench]
Hon’ble Mr. Justice Jayant Patel,
Hon’ble Mr. Justice Akil Kureshi &
Hon’ble Mr. Justice R.M. Chhaya
Jayendrasinh Bhupatsinh Diama
Versus
State of Gujarat Through Additional Secretary (Inquiry) & Ors.
Special Civil Application No. 10128 of 2011—Decided on 17/11/2011
(a) Gujarat High Court Rules, 1993 — Rule 5 — Gujarat Panchayat Act, 1993 (Guj. Act No. 18 of 1993) — Sections 56, 70, 84, 242, 249 and 259 — Reference by Single Judge Directly to Larger Bench — Question of appeal, or revision against resolution of no confidence against Sarpanch or other office bearers of Panchayat — Jurisdiction — Scope of — Finding as to.
Held :
It is of utmost important to settle the position of law qua purvey and purport of Sub-section (2) of Sections 56, 70 and 84 and the legislative intent in enacting and the jurisdiction powers and purvey of the district appellate committee working under Section 242 and State authority working under Section 249 and 259 of the Panchayat Act in respect of resolution passed by Panchayats against it’s Sarpanch, Up-sarpanch, President and Vice-Presidents under Sections 56, 70 and 84 of the Panchayat Act. There are observations and directions both by learned Single Judges and Division Benches in respect of Sections 242, 249 and 259, hence the matter is in fact requires to be referred to a larger bench under Rule 5 of the Gujarat High Court Rules 1993 [Para 5 (24)]
After considering the provisions of Rule 5, the learned Single Judge found that important questions have arisen in the present matter and, therefore, he has opined to refer the matter to the Larger Bench. But we find that the matter does not end there for considering the contention of Respondent No. 5 on the aspects of maintainability and the reason being that the opinion of the learned Single Judge to refer the matter to the Larger Bench by raising the questions remained as the opinion when the matters were placed before the Hon’ble the Acting Chief Justice on administrative side for placement of the matter to the Larger Bench. The Hon’ble Acting Chief Justice having considered the order passed by the learned Single Judge, has found it proper to place the matter before the Larger Bench. Therefore, if the Hon’ble Acting Chief Justice on administrative side has taken decision for placement of the matter before the Larger Bench, whether the learned Single Judge could refer the matter to the Division Bench or Larger Bench would lose its significance, since ultimately the Hon’ble Chief Justice or the Hon’ble Acting Chief Justice, is the Master of Roster and the power on administrative side cannot be controlled by the contention raised on behalf of the Respondent No. 5 as canvassed. [Para 6]
Head Note :
(b) Gujarat Panchayat Act, 1993 (Guj. Act No. 18 of 1993)— Sections 56, 62, 70, 84, 242, 249 and 259 — Motion of no Confidence by Gram Panchayat or Taluka Panchayat — Appeal or revision against such a motion — Maintainability — Scope of — Finding as to.
Held :
In a case where the motion of no confidence is carried by requisite majority against Sarpanch or Up-Sarpanch of a Gram Panchayat or against President or Vice-President of Taluka Panchayat, no appeal would be competent under Section 242 of the Act before the District Panchayat, nor the District Panchayat will have appellate power against the same. [Para 17 (a)]
In a case where the motion of no confidence is carried by requisite majority 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 Act would not be competent, nor the State Government will have a revisional power under Section 259 of the Act.
[Para 17 (b)]
In a case where the appellate power was already exercised by the District Panchayat, the revisional power of the state Government could be said as attracted under Section 259 of the Act as per the view taken by Court.
It is true that as held by Court herein above the appeal would not be maintainable, nor the revision under Section 259 of the Act against carrying of the motion of no confidence by the concerned Panchayat, but in a case where the appellate powers are already exercised by the District Panchayat against carrying of the motion of no confidence against Sarpanch or Up-Sarpanch or against President or Vice President of Taluka Panchayat, the revisional powers could be said as attracted.
[Para 37]
Jayant Patel, J.—The learned Single Judge of this Court has opined that the present matter deserves to be referred to the Larger Bench for examining the following questions:—
(a) Whether an incumbent of the office of the Sarpanch, Up-sarpanch, President, Vice President against whom the Panchayat has passed resolution expressing ‘no confidence’ in him can challenge it by way of appeal under Section 242 or revision under Section 249 or section 259 as the case may be of Gujarat Panchayat Act, 1993 (hereinafter referred to as the ‘Panchayat Act’), in light of the provisions of Panchayat Act with special emphasis of provisions of Sub-section (2) of Sections 56, 70, and 84 of the Panchayat Act ?
(b) If the remedy is held to be available, then what interim relief could be granted to such incumbent in light of the statutory provisions of Sub-section (2) of Sections 56, 70, and 84 of the Panchayat Act ?
2. The matter was placed before the Hon’ble the Acting Chief Justice for appropriate orders and hence, the present matter before us.
3. We have heard the learned Counsel for the petitioner Mr. Waghela. We have also heard Ms.Pathak, learned AGP for the Respondent No. 1 and Mr. P.C. Kavina, learned Sr. Counsel appearing with Mr. S.P. Majmudar, learned Counsel for Respondent No. 5. None has represented Respondents No. 2 to 4, though they were served.
4. The first preliminary contention was raised by the learned Counsel for the Respondent No. 5 that the learned Single Judge, as per the law of precedents, was bound by the view taken by the Division Bench of this Court on the aspects of maintainability of the appeal against the resolution of the Gram Panchayat for ‘motion of no confidence’ and, therefore, the learned Single Judge could not have referred the matter to the Larger Bench. He submitted that, therefore, the present reference was not called for. The learned Counsel, in support of his submission, relied upon the observations of the Apex Court in the case of Pradip Chandra Parija & Ors. vs. Pramod Chandra Patnaik & Ors., reported in (2002) 1 SCC 1.
5. We may record that the learned Single Judge, before opining to refer the issue to the Larger Bench in the order dated 11.8.2011 passed by him in the present proceedings vide Paragraphs 22, 23, 24 and 25 has observed, thus:—
“22. As could be observed from the decisions of this Court in cases touching upon the provisions of Sections 242, 249 and 259 of the Panchayat Act on question of challenge to passing of ‘no confidence motion’ it becomes evident that no bench was specifically invited to examine the issue on framing searching question, but the benches have expressed opinion that appeal would be available under Section 242 of the Panchayat Act for challenging resolution of no confidence. It is also required to be noted that the observations made in other earlier judgments were not cited before the Court. The Apex Court has in case of State of U.P. and another vs. Synthetics and Chemicals Ltd. reported in (1991) 4 SCC 139 observed as under:
“In Jaisri V. Rajdewan Dubey this Court while pointing out the procedure to be followed when conflicting decisions are placed before a bench extracted a passage from Halsbury’s Laws of England incorporating one of the exception when the decision of an appellate court is not binding. 41. Does this principle extend and apply to a conclusion of law, which neither raised nor preceded by any consideration. In other words can such conclusion be considered as declaration of law? Here again the English courts and jurists have carved out an exception to the rule of precedents. It has been explained as rule of sub-silention “A decision passes sub-silentio, in technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to it mind (Salmond on Jurisprudence 12th Edn p.153) In Lancaster Motor Company (London)Ltd V. Bremith Ltd the Court did not feel bound by earlier
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