TMI Blog2011 (11) TMI 625X X X X Extracts X X X X X X X X Extracts X X X X ..... of the statutory provisions of sub-section (2) of Sections 56, 70, and 84 of the Panchayat Act ? The matter was placed before the Hon'ble the Acting Chief Justice for appropriate orders and hence, the present matter before us. 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iple for relieving from injustice perpetrated by unjust precedents. A decision which is not express and is not founded on reason nor it proceeds on consideration of issue cannot be deemed to be a law declared to have binding effect as is contemplated by Article 141. Uniformity and consistency are core of judicial discipline. But that which escapes in the judgment without any occasion is not ratio decidendi. In B. Shama Rao v. Union territory of Pndicherry (AIR 1967 SC 1480) it was observed that 'it is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles laid down therein.' Any declaration or conclusion arrived without application of mind cannot be deemed to be declaration of law or authority of a general nature binding as precedent. Restraint in dissenting or overruling is for sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law. 23. The another decision of the Apex Court also needs to be cited on the point as in case of Sundarjas Kanyalal Bhathija v. Collector Thane reported in (1989) 3 SCC 396 the Apex Court has observed as under 21. Chief Justice Pat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 which reads as under: Rule 5: (1) A Single Judge may refer any matter before him or question arising in such matter to a Division Bench of two Judges or a Larger Bench. A Division Bench of two Judges may refer any matter before it or any question arising therein or any question referred to it under sub-rule (1)above to a Larger Bench. 25. On the question as to whether a Single Judge of this Court can directly refer the matter to Larger Bench or it has to be referred only to the Division Bench, the full bench of this Court has in case of Ram Fertilizers Pvt. Ltd and another v. State of Gujarat and another reported in 2001 (1) G.L.H. 698 held as under : 4.1 It will be seen from the provisions of of Rule 5 of the Gujarat High Court Rules 1993 that a Single Judge may refer any matter before him or question arising in such matter to a Division Bench of two or more Judges or a Larger Bench. The rule doe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Finance Anr., reported in 2002(2) GLR, 1132, wherein more or less similar contention was raised, which has been dealt with by the Larger Bench at paragraph at 5 as under:- At the out set, we consider it appropriate to record that as on the question raised before the learned Single Judge the earlier Single Bench decision of this Court in Narmadaben V. Parmar (supra) was relied on, in which reliance was placed on Division Bench decision of this Court in Chimanbhai R. Patel (supra) which was binding precedent on her, an order of reference to a Bench larger than of Two Judges was not required, unless the learned Single Judge would have expressed a dissenting opinion on the question of law involved in the case. None the less, since both the Letters Patent Appeals and Special Civil Applications raising a question of law of general importance have been placed before us, we proceed to decide the same on merits. In the decision of the Apex Court in the case of Pradip Chandra Parija Ors. v. Pramod Chandra Patnaik Ors. (supra) when the matters were placed before the Larger Bench, the Bench who heard the reference found that two Judges' Bench could not have referred the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be moved. (2) Where in the case of the Sarpanch or, as the case may be, the Upa-Sarpanch, the motion is carried by a majority of not less than two-thirds of the total number of the members of the panchayat, the Sarpanch or, as the case may be the Upa-Sarpanch, shall cease to hold office after a period of three days from the date on which the motion is carried unless he has resigned and the resignation has become effective earlier; and thereupon the office held by him shall be deemed to have become vacant. (3) Notwithstanding anything contained in this Act or the rules made thereunder a Sarpanch or, as the case may be, an Upa-Sarpanch, shall not preside over a meeting in which a motion of no confidence is discussed against him, but he shall have a right to speak or otherwise to take part in the proceedings of such a meeting (including the right to vote). (4) When the offices of both the Sarpanch and Upa-Sarpanch become vacant simultaneously, such Officer as the Taluka Development Officer may authorise in this behalf shall, pending the election of the Sarpanch, exercise all the powers and perform all the functions and duties of Sarpanch but he shall not have the right t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der passed and may revise or modify the order as it shall deem just. The aforesaid Sections 56, 70 and 84 of the Act use the language Where in the case of ... the motion is carried by a majority of not less than two-thirds of the total number of the members of the panchayat and it further provides that the person concerned against whom the motion is carried by the requisite majority shall cease to hold office after a period of three days from the date on which the motion is carried, unless he has resigned and the resignation has become effective earlier and thereupon the office held by him shall be deemed to have become vacant. In our view, the aforesaid language used by the legislative in a case of motion of no confidence and the effect to be given makes the total distinction in comparison to any other business to be transacted by a Panchayat at the meeting, may be Gram Panchayat or Taluka Panchayat or District Panchayat. The language used by the legislature is not for passing of a resolution by a Gram Panchayat, but the language used is motion is carried by the requisite majority . So it provides for support of the motion by requisite majority and it does not refer to any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re has used the language of resolution . Under these circumstances, it appears to us that it is true that the motion of no confidence is to be considered by any Panchayat at its meeting. It is also true that whether the motion is carried by requisite majority or not is to be reduced into the proceedings of Gram Panchayat by minitization of the same, but such minitization of the proceedings for carrying the motion of no confidence by necessary consequence cannot be termed as resolution or a decision of a Gram Panchayat. The word resolution or decision pre-supposes the existence of any dispute or controversy to be resolved. Unless there is any controversy to be resolved or any dispute to be decided, the minitization of the proceedings at the meeting cannot be termed for all purpose a resoltuion or a decision of any Panchayat. In Law Lexican of P. Ramanatha Aiyar the word decide has been defined as 'to determine, to form a definite opinion, to render judgement; to give judgement for or against a party to suit or other proceeding in Court; to determine (a question, controversy or cause). Further, the meaning of the word decide , determine , resolve is; resolution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... motion of no confidence can neither be termed as an order , nor can be termed as any decision of a collective body of a Panchayat . The resolution at the meeting of the Panchayat would also pre-suppose the collective decision of the whole body, which is not the requirement as provided by the relevant provisions of the statute for consideration of motion of no confidence. Further, after the motion is carried, the collective body of the Panchayat has not to take any action in furtherance thereof, but the statute itself expressly provides for the consequence of carrying of the motion of no confidence by requisite majority, inasmuch as after the expiry of the period of three days the person would cease to hold the office and his post is deemed to have become vacant. Even under Section 259 of the Act for the revisional powers of the State Government, such are available against any order passed by any Panchayat. Since, as observed earlier carrying of the motion of no confidence cannot be termed as an order passed by the Panchayat, the revisional powers would not be available to the State Government under Section 259 of the Act. Apart from the above, the relevant provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vancement of political democracy ensuring true, fair, honest and just representation of the electorate. Therefore, a provision in a statute for recall of an elected representative has to be tested not on general or vague notions but on practical possibility and electoral feasibility of entrusting the power of recall to a body which is representative in character and is capable of projecting views of the electorate. Even though there was no provision in the Act initially for recall of a President it came to be introduced in 1926 and since then it has continued and the power always vested in the Board irrespective of whether the President was elected by the electorate or Board. Rationale for it is apparent from the provisions of the Act... (Emphasis supplied) The Full Bench of this Court (Coram: D.M. Dharmadhikari, C.J., J.M. Panchal and N. G. Nandi, J.J.) in the case of Nandlal Bavanjibhai Posiya Ors. (supra) had also an occasion to consider the effect of no confidence and it was observed, inter alia, at paragraph 60, the relevant of which is reproduced as under:- 60. ... It is clear no-confidence motion does not require statement of any reasons for moving the motion, nor doe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ularly when the legislature itself has provided for contingencies thereupon and cessation of office by the office-bearers against whom the motion of no confidence is carried. The powers under Section 259 of the Act of the State Government is broadly concerned with the procedure to be adopted by the Panchayat for the purpose of maintenance of its record and proceedings. In view of the aforesaid observations as proceedings and procedure pertaining to motion of no confidence do not assume much importance in the matter of carrying of motion of no confidence and giving its effect, even if the principles of purposive interpretation of section of the statute are considered, it would be reasonable to hold that the power of the State Government under Section 259 of the Act shall not be attracted in a matter where it is pertaining to carry out the motion of no confidence by the elected representative. But is it that if no remedy is available under the statute i.e., the act, such officer-bearer against whom the motion of no confidence is passed is remediless, even if the mandatory procedure has not been followed for consideration of motion of no confidence and the serious prejudice is caused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ired for supporting the notice so that a motion may be moved shall be sixteen and so on. 21. Decision of panchayats and names of members voting for or against motion to be reported.- When the panchayat takes a decision on any motion of no confidence, the Secretary shall forthwith communicate to the officer to whom a copy of their motion was sent under sub-rule (2) of rule 20, the names of all the members who were present at the meeting at which such decision was given taken and the nature of vote given by each member by show of hands whether in favour of or against the motion and the names of members who abstained from voting. As such in view of the interpretation made by us of the relevant provisions of the Act namely; for carrying out motion of no confidence, the contention cannot be accepted for two reasons; one is that Rule 21 provides for only reporting of the names of the persons, who voted for or against the motion and it in no manner can be read to dilute the language for carrying of the motion of no confidence and the effect thereof, nor can be termed to attract the collective decision of a Gram Panchayat as against the individual action of a member, who supported o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the members of Gram or Taluka Panchayat, as the case may be. Section 242(3) of the Act provides that the District Panchayat may pass such order on appeal. In a case where the power is already exercised under Section 242 of the Act, such would be an order of a District Panchayat under Section 242 of the Act. Only in those circumstances, the jurisdiction of the State Government under Section 259 of the Act may be attracted since the language as observed earlier under Section 259 of the Act is against any order passed by the Panchayat, and the decision of the District Panchayat in appeal under Section 242 of the Act can be termed as an order. Hence, the revision would be competent to that extent only. Under these circumstances, our conclusion would be as under:- (i) In a case where the District Panchayat has already exercised the power under Section 242 of the Act and has taken the decision under Section 242 of the Act in connection with carrying of any motion of no confidence against the Sarpanch or Up-Sarpanch of Gram Panchayat or President or Vice-President of Taluka Panchayat, the revision under Section 259 of the Act would be competent. The next aspect deserves to be con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over to Up-Sarpanch. The aforesaid factum shows that the motion after it was being carried by requisite majority, the effect was also given. It appears that thereafter on 28.4.2009, the respondent No.5 approached the State Government under Section 259 of the Act by preferring the revision and the State Government at the relevant point of time did exercise the power and quashed and set aside the proceedings of motion of no confidence. The petitioner being aggrieved by the aforesaid decision of the state Government preferred SCA No.4436 of 2009 before this Court and the learned Single Judge of this Court vide order dated 26.6.2009 quashed the order of the State Government, inter alia, on the ground that the State Government could not have usurped the power when the appeal under Section 242 of the Act was maintainable. The matter was further carried by respondent No.5 before the Division Bench of this Court in LPA No.2313 of 2009 and the Division Bench, vide order dated 23.11.2009 expressed the view that when the motion is carried by the requisite majority, it does not cease to be the decision of the Gram Panchayat and, therefore, the Division Bench observed that the appeal was ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 us herein above. The aforesaid is coupled with another aspect that the learned Single Judge of this Court in SCA No.2436 of 2009 had observed for maintainability of the appeal and the said order was not interfered with by the Division Bench of this Court in the aforesaid LPA. It is true that as held by us 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. Under these circumstances, we find that the State Government in exercise of the revisional power has committed error apparent on the face of record and has failed to exercise the jurisdiction, which was vested in it. Therefore, the impugned order cannot be sustained and deserves to be set aside. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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