SCA/8026/2008 16/ 16 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8026 of 2008 ========================================================= MANIBHAI GOPALBHAI PATEL MEMBER - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MR PRAKASH K JANI for Petitioner(s) : 1, MR JK SHAH, AGP for Respondent(s) : 1, DS AFF.NOT FILED (N) for Respondent(s) : 1 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 05/06/2008 ORAL ORDER
The
petitioner has approached this court with this petition praying
inter alia that direction may be issued against respondent No. 1 to
adjudicate the proceedings pursuant to the show-cause notice dated
9.4.2008 and the petitioner has also prayed that the respondent No.
1 and 2 should see that the respondent No. 3 does not preside over
the meeting scheduled to take place on 6.6.2008 and the respondent
No. 3 may be directed not to take any policy decision or any
decision affecting the administration during the meeting scheduled
to be held on 6.6.2008. The petitioner has further prayed for
interim relief in terms of para 21(D), which reads as under:
ýS21
(D) Pending admission, hearing and final disposal of this petition,
Your Lordships may be pleased to direct respondent No. 1 to hear and
adjudicate the proceedings filed against respondent No. 3 in the
form of show cause notice dated 9.4.2008 (at Annexure-A hereto), and
to command respondent Nos. 1 and 2 to see that respondent No. 3 does
not preside over the meeting which is scheduled to take place on
6.6.2008 and also may be pleased to direct respondent No. 3 not to
take any policy decision or any decision affecting the
administration of the District Panchayat till the proceedings
against respondent No. 3 are decided by respondent No. 1ýý
The
facts relevant for present purpose are, briefly stated, as under:
2.1
The petitioner is a member of District Panchayat Gandhinagar and
respondent No. 3 is holding post of president of the panchayat. It
is the case of the petitioner that various allegations of serious
nature have been levelled against the respondent No. 3 and in light
of the such allegations a show cause notice has been served on the
said respondent No. 3 calling for his explanation as to why action
should not be taken against him under Section 85 (1) of the Act. It
is further submitted that the said show cause notice dated 9.4.2008
is pending before the competent authority and final decision is yet
to be taken. The petitioner states that during the pendency of the
said show cause notice, a meeting of general board has been
scheduled to take place on 6.6.2008 for which the notice-agenda has
been issued which is dated 21.5.2008 (Annexure-C to the petition).
The petitioner prays that since respondent No. 3 is facing such
charges and since charges and allegations of serious nature have
been levelled against him, in the fitness of things the said
respondent No. 3 should not be permitted to preside over the said
meeting as the president of the panchayat Besides, various
allegations have been made against respondent No. 3 in the petition
also which, inter alis, give out that the conduct of the respondent
No. 3 is not befitting the post of president and/or in the interest
of panchayat and therefore, it is pertinent that respondent No. 3 is
restrained from presiding over the meeting and from taking any
decision, more particularly with regard to issues or matters which
has connection or relevance with the charges or subject of the show
cause notice dated 9.4.2008.
Mr.
P.K. Jani learned advocate appears for the petitioner and upon
hearing him, by order dated 3.6.2008 notice was issued. In response
to the notice today Mr. Mehta has appeared for respondent No. 3 and
has tendered affidavit in reply made by respondent No. 3. Mr. J.K.
Shah learned Assistant Government Pleader and Mr. Pinakin Raval
appeared for respondent No. 1. In the reply affidavit the respondent
No. 3 has denied the allegations made in the petition and has also
attempted to deal with the charges in the charge-sheet.
Mr.
P.K. Jani learned advocate referred to the show cause notice and
submitted that during his tenure the respondent No. 3 dealt with as
many as 295 cases regarding non-agriculture permission by putting
the said matters for consideration in the meeting by mis-using his
position as the president. He also referred to the other charges and
allegations mentioned in the said notice dated 9.4.2008. He
submitted that now the meeting is scheduled to be held on 6.6.2008
and as per the notice-agenda dated 21.5.2008 (Annexure C to the
petition), the agenda includes the items which are close to or
similar to the subject matter of the show cause notice. Mr. Jani
referred to various newspapers cuttings also, which are annexed to
the petition, in support of his contention to the effect that
respondent No. 3 has not conducted himself in a manner befitting
the president of panchayat. During his submissions Mr. Jani also
relied upon the order passed by Hon’ble Division Bench of this Court
in LPA No. 139 of 2008 dated 14.2.2008, so as to draw analogy and to
substantiate petitioner’s prayers for interim relief that the
respondent No. 3 may be restrained from presiding over the meeting.
Mr.
Mehta on the other hand opposed the submissions made by Mr. Jani and
extensively referred to the reply affidavit made by respondent No.3.
He submitted that mere issuance of show cause notice would not take
away his right and obligation of presiding over the meeting as the
president of the panchayat, and would not deprive him of his
statutory status or the duties and rights. He relied upon the
provisions of section 83 of the Act and contended that it is the
duty and authority of the president to convene and preside over and
conduct the meeting and merely because a show cause notice
containing allegations has been issued against him, he cannot be
restrained from exercising the said power or discharging his duty,
more particularly when the said notice is yet to be decided. With
reference to the agenda items Mr. Mehta submitted that agenda is not
prepared by respondent No. 3 and in fact the same has been prepared
by respondent No. 2. It is pertinent that Mr. Pinakin Raval,
advocate appearing for respondent No. 2 has not disputed the said
assertions of Mr. Mehta that the agenda items are prepared and
determined by respondent No. 2. He also relied upon the provisions
of Section 151 of the Act to contend that all questions before the
meeting are to be decided by majority votes and therefore, the
apprehensions expressed by petitioner are not only ill founded but
also against the basic philosophy of democracy.
During
his submission Mr. Mehta has made a statement on behalf of the
respondent No. 3 and stipulated that during the meeting which is
scheduled to be held on 6.6.2008, no item or resolution shall be
moved by respondent No. 3 from the chair i.e. by him as a president
by invoking item No. 22. He, on behalf of the respondent No. 3 made
a further statement and stipulated that the respondent No. 3 as a
president, will not exercise the right of casting vote.
I
have heard Mr. Jani, learned advocate for the petitioner and Mr.
Raval for the respondent No. 2 and Mr. Mehta for respondent No. 3
and Mr. J.K. Shah for respondent No. 1. I have also gone through the
reply affidavit of respondent No. 3.
It
is not in dispute that as of now respondent No. 3 is holding post of
president and by any legally tenable order, passed by the competent
authority, he has not been removed or suspended from the post and
position of president. He, therefore, legally and technically, holds
the post of, and continues to be, the president of the panchayat and
consequently is entitled to exercise the rights conferred upon and
to discharge the duties cast upon the president and he is also
responsible to discharge the functions as president. While it is
true that he has been visited with a show cause notice dated
9.4.2008, no order, however, has yet been passed by any competent
authority either removing or suspending him. Further, no order if at
all permissible by law, suspending power of respondent No. 3 as
president or restraining him from acting as president has been
passed by competent authority. The show cause notice issued against
respondent No. 3 is yet to be heard and decided and the same is
still pending. The charges and allegations levelled against him are
yet not proved or established and are still in the form and realm of
allegations. Mr. P.K. Jani, learned advocate for the petitioner,
tried to rely upon an order passed by the Hon’ble Division Bench in
LPA No. 139 of 2008, which was preferred against order dated
12.2.2008 passed in SCA No. 2595 of 2008. In the said order dated
12.2.2008 in SCA No. 2595 of 2008 the prayer for the relief that the
concerned respondent may not be permitted to participate in the
meeting or may not be permitted to cast vote as they had incurred
disqualification, was declined. The Court in the said order held
that:
ýSThe
competent authority has already been approached and the
disqualification proceedings are pending. The authority has refused
to grant any interim relief as prayed. A requisition meeting has
been called, which is to be convened on 16.02.2008. The prayer
before this Court is that respondent Nos. 6 to 9, by prohibitory
order, may not be permitted to participate in the said meeting or at
least they may not be permitted to cast votes in the meeting as they
have incurred disqualification.
5.
Considering the totality and the privilege of the members to call
requisition meeting, the request to differ the meeting or discussion
of Agenda item No. 4 would not be either proper or justifiable
especially when alternative attempts have been made by the
petitioner by approaching the Development Commissioner as well as
the Designated Officer dealing with the Disqualification Application
No. 31 of 2008.ýý
Hence,
against the said order, LPA No. 139 of 2008 was preferred wherein
the Hon’ble Division Bench of this Court directed that:
ýSTherefore,
Mr. Mehta prays that either the respondent Nos. 6 to 9 who are
connected with Congress Party should not be permitted to take part
in the meeting scheduled to be held on 16th February,
2008 fir constitution of the Committees or alternatively, the
meeting scheduled on 16.02.2008 for constitution of Committees and
other agenda, should be postponed.
Issue
notice to the respondents returnable by 26th February,
2008.
Meanwhile,
in case the meeting is convened as scheduled for constitution of
Committees, respondent Nos. 4 & 5 are directed not to permit the
respondent Nos. 6 to 9 to take part in the meeting which is
scheduled to be held on 16th February, 2008 and the
concerned authority, if deemed fit not to convene the meeting, the
concerned authority can take that decision.
Direct
service is permitted.
List
it on 26th February, 2008.ýý
It
can be seen that in SCA No. 2595 of 2008 and LPA No. 139 of 2008
prayer for prohibitory orders against the concerned respondents was
made on the ground that the said respondents were disqualified by
virtue of the Provisions under Gujarat Provision for
Disqualification of Members of Local Authority for Defection Act,
1986 (referred to as 1986 Act) and the rules made thereunder. Mr.
Mehta learned advocate for respondent No. 3 tried to distinguish
between fact-situation in the said SCA No. 2595 of 2008 and LPA No.
139 of 2008 on one hand and the fact of this case on the other hand.
He submitted that in the said earlier case the concerned persons
stood disqualified by virtue of the Provisions under the Act when
they acted in particular manner and disqualification got attached to
them on the very same day, although, subject to order by the
competent authority, whereas in the present case respondent No. 3
cannot be said to have gained disqualification to hold post in
question merely and immediately upon issuance of show cause notice
but such consequence would follow after final outcome in respect of
the show cause notice, and that too, if it is against the
petitioner, and not until then. In submission of Mr. Mehta therefore
the situation and facts in the said earlier case (i.e. SCA No. 2595
of 2008 as well as LPA No. 139 of 2008) are different from the
situation and the facts obtaining in the present case. It is true
that by the order dated 13.2.2008 passed in LPA No. 139 of 2008, the
Hon’ble Division Bench directed that the concerned persons may not
be permitted to take part in the meeting and if deemed proper, the
meeting itself may not be convened, it however, appears that the
said direction was granted in light of the facts, of the said case.
It appears that the Hon’ble Division Bench upon taking the facts of
the said case in to account and on considering that the petitioners
of said petition were not entitled to take part in the meeting,
probably passed the said interim order. However, the facts in
present case are different inasmuch as the president is not
disqualified as per or under the provision of the said 1986 Act. The
show cause notice is yet to be replied by the president and is yet
to be decided by competent authority. Thus, it is difficult to
assume, in light of the facts and circumstances of present case, and
that too at this interim stage, that the respondent No. 3 is already
i.e. prior to 6.6.2008, deemed to be disqualified for the post
unless an order to such effect is made by a competent authority. If
that consequence is to be attached to the respondent No. 3, it could
be after the decision on the show cause notice is rendered, provided
it goes against him. Until then the respondent No. 3 cannot be said
to be disqualified. Had this been the case of disqualification then
this Court would be required to make similar order if other relevant
facts were also identical to the facts of said other case, however,
that is not so. The relief prayed for in para 21 (D) as interim
relief is, thus, premature. In this case an additional feature is
that the respondent No. 3 is entrusted with certain duties which he
is required to discharge while he holds the post of president and
until he is lawfully removed or suspended. The petitioner appears to
be aware of the consequence of the said fact and therefore the
petitioner has rightly not pleaded that respondent No. 3 should be
restrained from attending and/or participating in the meeting and
instead the petitioner has prayed that respondent No. 3 be
restrained from acting as the president. The provision of Section 83
of the Act confers upon the president of a Panchayat certain powers
and obligations. Thus, unless any of the eventualities or
consequences which, render, in accordance with the provisions under
the Act, a person disqualified to act as a president, he cannot be
restrained from exercising the right or discharging the duties of
the Post. Restraining a person holding the said post from
discharging duties or exercising right of said post unless and until
eventuality contemplated under the Act occur and/or competent
authority pass an order, would amount to staying the effect of the
provisions under the Act which confer the power or cast the duty on
the post and person holding the post. Hence it would not be
justified or proper to stay the operation of the provisions under
the statute which confer the rights and duties on a president of
panchayat, until it is shown that eventuality contemplated under the
statute has occurred which warrant such action. If the interim
relief as prayed for is granted, then the same would amount to
staying the operation of the provision under act.
It
is not in dispute that against the president no action has been
taken and/or no order has been made, until now, either under Section
85 or Section 87 of the Act. Further if the petitioner or any member
is aggrieved by any decision or resolution under the Act then, such
member has remedy available under Section 249 of the Act and even
the competent authority has the power to set the matters right.
In
this view of the matter, there is no justification for any
prohibitory order prohibiting an elected representative from
discharging the duties cast on him while he holds the post and/or
from carrying out the functions as required by relevant provision
and/or from exercising the right conferred by statute, at this
stage. In my view such action would not be justified at this stage,
more particularly in the fact and circumstances of the present
case. Under the circumstances, I am not inclined to grant interim
relief as prayed. Hence, the request for interim relief is declined.
The
respondent No. 3 has filed affidavit in reply and the reply from
respondent No. 2 has not yet come on record. The petitioner may want
to respond to the reply affidavit. In that view of the matter the
further and final hearing of the further hearing the petition is
adjourned to 13.6.2008.
(K.M.THAKER,J.)
Suresh*