TARABEN JITUBHAI VANAND Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Mr.Champaneri, learned advocate for the petitioner has filed draft amendment. The same is allowed. Amendment to be carried out forthwith.

(2.) At the request and with the consent of learned advocates appearing for the parties, the matter is taken up for hearing today and decided finally. Rule. Dr.Venugopal Patel, learned AGP waives service of notice of rule on behalf of respondent no.1 and Mr.H.S.Munshaw, learned advocate waives service of notice of rule on behalf of respondent nos.2 and 3.

(3.) This petition is filed by the petitioner stating that general election of the Deva Vanta Gram Panchayat was held in December 2016. The petitioner was elected for the post of Sarpanch uncontested and other four members were also elected uncontested. It is also stated that four other members were elected upon conduct of the election and, thus, total number of members of the panchayat is eight and one sarpanch, totalling the number to nine. It is also contended that general body of the panchayat in its meeting dated 25.9.2018 passed a resolution and removed three members of the panchayat from the post of Members i.e. Sarojben Ravindrasinh Mahida, Ajitsinh Manubhai Lakum and Jagrutiben Vikramsing Mahida. It is also stated that all these three members being aggrieved and dissatisfied by their removal from the post of Members have challenged such decision by preferring writ petitions before this Court being Special Civil Application Nos.16239, 16240 and 16241 of 2018. It is also stated that these matters are pending before this Court and the same are sub-judice and bye-election for these posts have also not been conducted till date. It is also stated that no total strength of the members is existing as on today. It is also stated that now only five members and a sarpanch are remaining in the panchayat. While referring to Section 56 of the Gujarat Panchayats Act, 1993, it has been contended that No Confidence Motion can be moved against the Sarpanch only if the same is supported by one half of the total number of members of the panchayat concerned and such motion can be carried by majority of not less than 2/3rd of the total number of members of the panchayat. It is also contended that as per the provisions of Section 56 (5) of the Gujarat Panchayats Act, the meeting for No Confidence Motion shall be called within 15 days from the date of receipt of such motion and if the sarpanch fails to call the meeting, the Secretary of the Panchayat viz. Talati-cum-mantri shall report the same to the competent authority and he shall call the meeting of the panchayat within 15 days. It is also stated that respondent no.3 had on 27.11.2018 addressed a communication to the petitioner that Motion for No Confidence is moved against the petitioner by four members and, therefore, the meeting is required to be called and needful is to be done by the Sarpanch i.e. the present petitioner. It is also contended that there was no total strength existing in the Panchayat in view of removal of three members from the membership and the said dispute was pending before the Honourable High Court, therefore, the petitioner refused to call the meeting and moving the Motion of No Confidence is contrary to the provisions of Section 56 of the Gujarat Panchayats Act, and, accordingly, addressed a letter to the respondent no.3 dated 11.12.2018. It is also the stand of the petitioner that respondent no.3, despite the settled legal position and despite the communication made by the petitioner, contrary to the provisions has asked the competent authority to call the meeting within 15 days as the petitioner-sarpanch has not called the meeting. It is the contention of the petitioner that in view of settled legal position, under Section 56 of the Panchayats Act, there is no legal acceptance of the requisition of No Confidence Motion and moving the same is contrary to the provisions of Section 56 itself. It is also contended that action of the respondent no.3 is arbitrary, erroneous and exfacie illegal. On these grounds, the petitioner has filed the: