RAMBHAI JOITARAM PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This Special Civil Application under Art. 226 of the Constitution of India has been filed seeking direction to quash and set aside Resolution dated 14-11-1995 whereby motion of no-confidence has been carried out ousting the petitioner from the office of the Sarpanch.

(2.) Admitted facts of the case are that the petitioner was elected Sarpach of the Village Panchayat, Saltasna in Kheralu Taluka of Mehsana District. The total number of members of the Panchayat is 15. Two seats of the members are vacant. 8 members of the Panchayat gave notice of motion of no-confidence against the petitioner-Sarpanch. The meeting to consider the motion was convened on 14-11- 1995 in accordance with the provisions of Sec. 56 of the Gujarat Panchayats Act, 1993 (hereinafter referred to as 'the Act' 1993'). As the motion was against the petitioner, respondent No. 3, a member of the Panchayat presided over the meeting. Out 13 members, 9 members voted in favour of the motion and 4 voted against. It was, therefore, declared that motion of no-confidence has been carried as per the provisions of Sec. 56(2) of the Act of 1993. The petitioner challenged the said Resolution before the District Panchayat on the ground that the motion was short of one vote as on true construction of the words two-thirds of "total number of members the Panchayat" under Sec. 56(2) means full strength of the Panchayat including vacancy, i.e., 15 members and as such for carrying the motion, 10 members were required to vote in favour of the motion. The Appellate Committee admitted the appeal on 16-11-1995 and directed to stay operation of the impugned Resolution and to maintain status quo till the final disposal of the appeal. Respondent No. 3 preferred Revision Application before the respondent-State under Sec. 259 of the Act. The respondent-State, by order dated 29-11-1995, ordered stay of the operation of the order dated 16-11-1995 of the Appellate Committee. The petitioner initially challenged the order dated 16-11-1995 of the Appellate Committee. Subsequently, by way of amendment, that the petitioner has also challenged the Resolution dated 14-11-1995. This Court, by order dated 11-4-1996, while allowing the aforesaid amendment, also granted permission to the petitioner to withdraw Appeal No. 37 of 1995 pending before the District Panchayat.

(3.) It is contended by the learned Advocate for the petitioner that the words "total number of members of the Panchayat" occurring in sub-sec. (2) of Sec. 56 means the total number of members who initially constituted the Board and consequently existence of any casual vacancy of a particular time is irrelevant for calculating the total number of members for the purpose of sub-sec. (2) of Sec. 56 of the Act of 1993. The learned Advocate relies on a Full Bench decision of the Allahabad High Court in the case of Mangala Prasad v. District Magistrate & Ors., reported in AIR 1971 All. 77 and in the case of Shyamapada Ganguly v. Abani Mohan Mukherjee, reported in AIR 1951 Cal 420. On the other hand, the contention of the learned Advocate for the respondent is that "the total number of members of the Panchayat", as occurring in Sec. 56(2) of the Act of 1993, means "total number of members of the Panchayat who are entitled to sit and vote at the time of motion of no-confidence." The learned Advocate relies on a Full Bench decision of the Bombay High Court in the case of Namdeorao Madhavrao v. Dulaji, reported in.. Thus, the question which arises for consideration is what is the true construction of words "total number of members of the Panchayat" occurring in Sec. 56(2) of the Act of 1993 ?