GOPALDAS BAKUBHAI RANA Vs. LUNAVADA NAGAR PANCHAYAT

JUDGEMENT

(1.) In this petition under Article 226 of the Constitution the petitioner who is one of the members of Lunawada Nagar Panchayat constituted under the provisions of the Gujarat Panchayats Act 1961 (hereinafter referred to as the said Act) has challenged a resolution passed by the said panchayat by which a notion of no confidence was passed against the Chairman of the Panchayat respondent no. 2 herein Kamlashanker Bhuleshwar Dave Mr. A. H. Mehta leaned advocate for the petitioner requested me to permit transposition of respondent no. 2 as petitioner no. 2 in order to meet the preliminary objection raised by the respondents to the effect that the person who is affected by no confidence motion was remaining in the background and was not interested in challenging the said resolution. Respondent no. 2 is accordingly permitted to be transposed as petitioner no. 2 at the oral request of Mr. Mehta. The impugned resolution passing motion of no confidence against petitioner no. 9 is dated 21-1-1983. The said resolution was passed by majority wherein 14 persons present and voting supported the said resolution while two persons including petitioner no. 2 voted against the resolution and one member remained neutral. The panchayat at the relevant time consisted of 18 members. The aforesaid resolution had been challenged on various grounds in the present petition. Notice was ordered to be issued in this petition and pursuant to the said notice the respondents who are members of the panchayat and who had voted in favour of the resolution have appeared through their learned advocates M/s. N. J. Mehta and Girish Patel.

(2.) Mr. A. H. Mehta for the petitioners has raised the following four contentions in respect of the petition:-

(3.) So far as the first contention of Mr. Mehta is concerned it is necessary to keep in view of certain admitted and well established facts. As per sec. 48 any member who intends to move a notion of no confidence against the Sarpanch or Upa-Sarpanch or as the case may be the Chairman or Vice-Chair man may give notice thereof in the prescribed form to the panchayat concerned. If the notice is supported by one half of the total number of members of the panchayat concerned the motion may be moved. In the present case one Division Punval who is a member of the panchayat and who is respondent no. 11 herein gave such notice which was supported by the signatures of 10 members in form no. 2 being apprised of the said fact wrote a letter as Chairman on 6-1-1983 to the District Development Commissioner District Panchayat Gadhra pointing out the said fact and he sought further instructions from him as to what was to be done in the matter as there were two such notices received by him from two different members seeking to move motion of no confidence against him. Thereafter on 10-1-1983 petitioner no. 2 Chairman presumably because the D.D.O. did not give any further instructions in the matter took his own decison to call a meeting for discussing no confidence motion against him on 21 at 2-45 p.m. in the afternoon. He informed Shri Chandrakant Dave Secretary of the panchayat to call a special meeting accordingly. The said two letters have been annexed to the petition by way of Annexures. It appears that pursuant to the said direction given to Shri Chandrakant Dave by petitioner no.2 Chairman the said Chandrakant Dave called a meeting of the panchayat on 21 and for that purpose issued necessary notices to the members on 17 It is thereafter that the meeting in question was held on 21-1-83 where petitioner no. 2 came to suffer the motion of no confidence against him which was passed by overwhelming majority of the members present and voting. In the background of the aforesaid facts contention no. 1 raised by Mr. Mehta for the petitioner has to be appreciated. He placed strong reliance on sec. 48(5)(a) and (b) in support of his first contention. The said sub-sections are required to he quoted in extenso-