{"id":247430,"date":"2008-06-05T00:00:00","date_gmt":"2008-06-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/manibhai-vs-state-on-5-june-2008"},"modified":"2017-05-25T01:54:31","modified_gmt":"2017-05-24T20:24:31","slug":"manibhai-vs-state-on-5-june-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/manibhai-vs-state-on-5-june-2008","title":{"rendered":"Manibhai vs State on 5 June, 2008"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Manibhai vs State on 5 June, 2008<\/div>\n
Bench: K.M.Thaker<\/div>\n
  \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n \n \n\n\n\t \n\nSCA\/8026\/2008\t 16\/ 16\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 8026 of 2008\n \n\n=========================================================\n\n \n\nMANIBHAI\nGOPALBHAI PATEL MEMBER - Petitioner(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT & 2 - Respondent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nPRAKASH K JANI for\nPetitioner(s) : 1, \nMR JK SHAH, AGP for Respondent(s) : 1, \nDS\nAFF.NOT FILED (N) for Respondent(s) : 1 -\n3. \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE K.M.THAKER\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 05\/06\/2008 \n\n \n\n \n \nORAL\nORDER<\/pre>\n
The
\n\tpetitioner has approached this court with this petition praying
\n\tinter alia that direction may be issued against respondent No. 1 to
\n\tadjudicate the proceedings pursuant to the show-cause notice dated
\n\t9.4.2008 and the petitioner has also prayed that the respondent No.
\n\t1 and 2 should see that the respondent No. 3 does not preside over
\n\tthe meeting scheduled to take place on 6.6.2008 and the respondent
\n\tNo. 3 may be directed not to take any policy decision or any
\n\tdecision affecting the administration during the meeting scheduled
\n\tto be held on 6.6.2008. The petitioner has further prayed for
\n\tinterim relief in terms of para 21(D), which reads as under:\n<\/p>\n
\u00fdS21
\n\t(D) Pending admission, hearing and final disposal of this petition,
\n\tYour Lordships may be pleased to direct respondent No. 1 to hear and
\n\tadjudicate the proceedings filed against respondent No. 3 in the
\n\tform of show cause notice dated 9.4.2008 (at Annexure-A hereto), and
\n\tto command respondent Nos. 1 and 2 to see that respondent No. 3 does
\n\tnot preside over the meeting which is scheduled to take place on
\n\t6.6.2008 and also may be pleased to direct respondent No. 3 not to
\n\ttake any policy decision or any decision affecting the
\n\tadministration of the District Panchayat till the proceedings
\n\tagainst respondent No. 3 are decided by respondent No. 1\u00fd\u00fd<\/p>\n
The
\n\tfacts relevant for present purpose are, briefly stated, as under:\n<\/p>\n
2.1
\n\t The petitioner is a member of District Panchayat Gandhinagar and
\n\trespondent No. 3 is holding post of president of the panchayat. It
\n\tis the case of the petitioner that various allegations of serious
\n\tnature have been levelled against the respondent No. 3 and in light
\n\tof the such allegations a show cause notice has been served on the
\n\tsaid respondent No. 3 calling for his explanation as to why action
\n\tshould not be taken against him under Section 85 (1) of the Act. It
\n\tis further submitted that the said show cause notice dated 9.4.2008
\n\tis pending before the competent authority and final decision is yet
\n\tto be taken. The petitioner states that during the pendency of the
\n\tsaid show cause notice, a meeting of general board has been
\n\tscheduled to take place on 6.6.2008 for which the notice-agenda has
\n\tbeen issued which is dated 21.5.2008 (Annexure-C to the petition).
\n\tThe petitioner prays that since respondent No. 3 is facing such
\n\tcharges and since charges and allegations of serious nature have
\n\tbeen levelled against him, in the fitness of things the said
\n\trespondent No. 3 should not be permitted to preside over the said
\n\tmeeting as the president of the panchayat Besides, various
\n\tallegations have been made against respondent No. 3 in the petition
\n\talso which, inter alis, give out that the conduct of the respondent
\n\tNo. 3 is not befitting the post of president and\/or in the interest
\n\tof panchayat and therefore, it is pertinent that respondent No. 3 is
\n\trestrained from presiding over the meeting and from taking any
\n\tdecision, more particularly with regard to issues or matters which
\n\thas connection or relevance with the charges or subject of the show
\n\tcause notice dated 9.4.2008.\n<\/p>\n
Mr.\n<\/p>\n
\tP.K. Jani learned advocate appears for the petitioner and upon
\n\thearing him, by order dated 3.6.2008 notice was issued. In response
\n\tto the notice today Mr. Mehta has appeared for respondent No. 3 and
\n\thas tendered affidavit in reply made by respondent No. 3. Mr. J.K.
\n\tShah learned Assistant Government Pleader and Mr. Pinakin Raval
\n\tappeared for respondent No. 1. In the reply affidavit the respondent
\n\tNo. 3 has denied the allegations made in the petition and has also
\n\tattempted to deal with the charges in the charge-sheet.\n<\/p>\n
Mr.\n<\/p>\n
\tP.K. Jani learned advocate referred to the show cause notice and
\n\tsubmitted that during his tenure the respondent No. 3 dealt with as
\n\tmany as 295 cases regarding non-agriculture permission by putting
\n\tthe said matters for consideration in the meeting by mis-using his
\n\tposition as the president. He also referred to the other charges and
\n\tallegations mentioned in the said notice dated 9.4.2008. He
\n\tsubmitted that now the meeting is scheduled to be held on 6.6.2008
\n\tand as per the notice-agenda dated 21.5.2008 (Annexure C to the
\n\tpetition), the agenda includes the items which are close to or
\n\tsimilar to the subject matter of the show cause notice. Mr. Jani
\n\treferred to various newspapers cuttings also, which are annexed to
\n\tthe petition, in support of his contention to the effect that
\n\trespondent No. 3 has not conducted himself in a manner befitting
\n\tthe president of panchayat. During his submissions Mr. Jani also
\n\trelied upon the order passed by Hon’ble Division Bench of this Court
\n\tin LPA No. 139 of 2008 dated 14.2.2008, so as to draw analogy and to
\n\tsubstantiate petitioner’s prayers for interim relief that the
\n\trespondent No. 3 may be restrained from presiding over the meeting.\n<\/p>\n
Mr.\n<\/p>\n
\tMehta on the other hand opposed the submissions made by Mr. Jani and
\n\textensively referred to the reply affidavit made by respondent No.3.
\n\tHe submitted that mere issuance of show cause notice would not take
\n\taway his right and obligation of presiding over the meeting as the
\n\tpresident of the panchayat, and would not deprive him of his
\n\tstatutory status or the duties and rights. He relied upon the
\n\tprovisions of section 83 of the Act and contended that it is the
\n\tduty and authority of the president to convene and preside over and
\n\tconduct the meeting and merely because a show cause notice
\n\tcontaining allegations has been issued against him, he cannot be
\n\trestrained from exercising the said power or discharging his duty,
\n\tmore particularly when the said notice is yet to be decided. With
\n\treference to the agenda items Mr. Mehta submitted that agenda is not
\n\tprepared by respondent No. 3 and in fact the same has been prepared
\n\tby respondent No. 2. It is pertinent that Mr. Pinakin Raval,
\n\tadvocate appearing for respondent No. 2 has not disputed the said
\n\tassertions of Mr. Mehta that the agenda items are prepared and
\n\tdetermined by respondent No. 2. He also relied upon the provisions
\n\tof Section 151 of the Act to contend that all questions before the
\n\tmeeting are to be decided by majority votes and therefore, the
\n\tapprehensions expressed by petitioner are not only ill founded but
\n\talso against the basic philosophy of democracy.\n<\/p>\n
During
\n\this submission Mr. Mehta has made a statement on behalf of the
\n\trespondent No. 3 and stipulated that during the meeting which is
\n\tscheduled to be held on 6.6.2008, no item or resolution shall be
\n\tmoved by respondent No. 3 from the chair i.e. by him as a president
\n\tby invoking item No. 22. He, on behalf of the respondent No. 3 made
\n\ta further statement and stipulated that the respondent No. 3 as a
\n\tpresident, will not exercise the right of casting vote.\n<\/p>\n
I
\n\thave heard Mr. Jani, learned advocate for the petitioner and Mr.
\n\tRaval for the respondent No. 2 and Mr. Mehta for respondent No. 3
\n\tand Mr. J.K. Shah for respondent No. 1. I have also gone through the
\n\treply affidavit of respondent No. 3.\n<\/p>\n
It
\n\tis not in dispute that as of now respondent No. 3 is holding post of
\n\tpresident and by any legally tenable order, passed by the competent
\n\tauthority, he has not been removed or suspended from the post and
\n\tposition of president. He, therefore, legally and technically, holds
\n\tthe post of, and continues to be, the president of the panchayat and
\n\tconsequently is entitled to exercise the rights conferred upon and
\n\tto discharge the duties cast upon the president and he is also
\n\tresponsible to discharge the functions as president. While it is
\n\ttrue that he has been visited with a show cause notice dated
\n\t9.4.2008, no order, however, has yet been passed by any competent
\n\tauthority either removing or suspending him. Further, no order if at
\n\tall permissible by law, suspending power of respondent No. 3 as
\n\tpresident or restraining him from acting as president has been
\n\tpassed by competent authority. The show cause notice issued against
\n\trespondent No. 3 is yet to be heard and decided and the same is
\n\tstill pending. The charges and allegations levelled against him are
\n\tyet not proved or established and are still in the form and realm of
\n\tallegations. Mr. P.K. Jani, learned advocate for the petitioner,
\n\ttried to rely upon an order passed by the Hon’ble Division Bench in
\n\tLPA No. 139 of 2008, which was preferred against order dated
\n\t12.2.2008 passed in SCA No. 2595 of 2008. In the said order dated
\n\t12.2.2008 in SCA No. 2595 of 2008 the prayer for the relief that the
\n\tconcerned respondent may not be permitted to participate in the
\n\tmeeting or may not be permitted to cast vote as they had incurred
\n\tdisqualification, was declined. The Court in the said order held
\n\tthat:\n<\/p>\n
\u00fdSThe
\n\tcompetent authority has already been approached and the
\n\tdisqualification proceedings are pending. The authority has refused
\n\tto grant any interim relief as prayed. A requisition meeting has
\n\tbeen called, which is to be convened on 16.02.2008. The prayer
\n\tbefore this Court is that respondent Nos. 6 to 9, by prohibitory
\n\torder, may not be permitted to participate in the said meeting or at
\n\tleast they may not be permitted to cast votes in the meeting as they
\n\thave incurred disqualification.\n<\/p>\n
5.
\n\tConsidering the totality and the privilege of the members to call
\n\trequisition meeting, the request to differ the meeting or discussion
\n\tof Agenda item No. 4 would not be either proper or justifiable
\n\tespecially when alternative attempts have been made by the
\n\tpetitioner by approaching the Development Commissioner as well as
\n\tthe Designated Officer dealing with the Disqualification Application
\n\tNo. 31 of 2008.\u00fd\u00fd<\/p>\n
Hence,
\n\tagainst the said order, LPA No. 139 of 2008 was preferred wherein
\n\tthe Hon’ble Division Bench of this Court directed that:\n<\/p>\n
\u00fdSTherefore,
\n\tMr. Mehta prays that either the respondent Nos. 6 to 9 who are
\n\tconnected with Congress Party should not be permitted to take part
\n\tin the meeting scheduled to be held on 16th February,
\n\t2008 fir constitution of the Committees or alternatively, the
\n\tmeeting scheduled on 16.02.2008 for constitution of Committees and
\n\tother agenda, should be postponed.\n<\/p>\n
Issue
\n\tnotice to the respondents returnable by 26th February,
\n\t2008.\n<\/p>\n
Meanwhile,
\n\tin case the meeting is convened as scheduled for constitution of
\n\tCommittees, respondent Nos. 4 & 5 are directed not to permit the
\n\trespondent Nos. 6 to 9 to take part in the meeting which is
\n\tscheduled to be held on 16th February, 2008 and the
\n\tconcerned authority, if deemed fit not to convene the meeting, the
\n\tconcerned authority can take that decision.\n<\/p>\n
Direct
\n\tservice is permitted.\n<\/p>\n
List
\n\tit on 26th February, 2008.\u00fd\u00fd<\/p>\n
It
\n\tcan be seen that in SCA No. 2595 of 2008 and LPA No. 139 of 2008
\n\tprayer for prohibitory orders against the concerned respondents was
\n\tmade on the ground that the said respondents were disqualified by
\n\tvirtue of the Provisions under Gujarat Provision for
\n\tDisqualification of Members of Local Authority for Defection Act,
\n\t1986 (referred to as 1986 Act) and the rules made thereunder. Mr.
\n\tMehta learned advocate for respondent No. 3 tried to distinguish
\n\tbetween fact-situation in the said SCA No. 2595 of 2008 and LPA No.
\n\t139 of 2008 on one hand and the fact of this case on the other hand.
\n\tHe submitted that in the said earlier case the concerned persons
\n\tstood disqualified by virtue of the Provisions under the Act when
\n\tthey acted in particular manner and disqualification got attached to
\n\tthem on the very same day, although, subject to order by the
\n\tcompetent authority, whereas in the present case respondent No. 3
\n\tcannot be said to have gained disqualification to hold post in
\n\tquestion merely and immediately upon issuance of show cause notice
\n\tbut such consequence would follow after final outcome in respect of
\n\tthe show cause notice, and that too, if it is against the
\n\tpetitioner, and not until then. In submission of Mr. Mehta therefore
\n\tthe situation and facts in the said earlier case (i.e. SCA No. 2595
\n\tof 2008 as well as LPA No. 139 of 2008) are different from the
\n\tsituation and the facts obtaining in the present case. It is true
\n\tthat by the order dated 13.2.2008 passed in LPA No. 139 of 2008, the
\n\tHon’ble Division Bench directed that the concerned persons may not
\n\tbe permitted to take part in the meeting and if deemed proper, the
\n\tmeeting itself may not be convened, it however, appears that the
\n\tsaid direction was granted in light of the facts, of the said case.
\n\tIt appears that the Hon’ble Division Bench upon taking the facts of
\n\tthe said case in to account and on considering that the petitioners
\n\tof said petition were not entitled to take part in the meeting,
\n\tprobably passed the said interim order. However, the facts in
\n\tpresent case are different inasmuch as the president is not
\n\tdisqualified as per or under the provision of the said 1986 Act. The
\n\tshow cause notice is yet to be replied by the president and is yet
\n\tto be decided by competent authority. Thus, it is difficult to
\n\tassume, in light of the facts and circumstances of present case, and
\n\tthat too at this interim stage, that the respondent No. 3 is already
\n\ti.e. prior to 6.6.2008, deemed to be disqualified for the post
\n\tunless an order to such effect is made by a competent authority. If
\n\tthat consequence is to be attached to the respondent No. 3, it could
\n\tbe after the decision on the show cause notice is rendered, provided
\n\tit goes against him. Until then the respondent No. 3 cannot be said
\n\tto be disqualified. Had this been the case of disqualification then
\n\tthis Court would be required to make similar order if other relevant
\n\tfacts were also identical to the facts of said other case, however,
\n\tthat is not so. The relief prayed for in para 21 (D) as interim
\n\trelief is, thus, premature. In this case an additional feature is
\n\tthat the respondent No. 3 is entrusted with certain duties which he
\n\tis required to discharge while he holds the post of president and
\n\tuntil he is lawfully removed or suspended. The petitioner appears to
\n\tbe aware of the consequence of the said fact and therefore the
\n\tpetitioner has rightly not pleaded that respondent No. 3 should be
\n\trestrained from attending and\/or participating in the meeting and
\n\tinstead the petitioner has prayed that respondent No. 3 be
\n\trestrained from acting as the president. The provision of Section 83
\n\tof the Act confers upon the president of a Panchayat certain powers
\n\tand obligations. Thus, unless any of the eventualities or
\n\tconsequences which, render, in accordance with the provisions under
\n\tthe Act, a person disqualified to act as a president, he cannot be
\n\trestrained from exercising the right or discharging the duties of
\n\tthe Post. Restraining a person holding the said post from
\n\tdischarging duties or exercising right of said post unless and until
\n\teventuality contemplated under the Act occur and\/or competent
\n\tauthority pass an order, would amount to staying the effect of the
\n\tprovisions under the Act which confer the power or cast the duty on
\n\tthe post and person holding the post. Hence it would not be
\n\tjustified or proper to stay the operation of the provisions under
\n\tthe statute which confer the rights and duties on a president of
\n\tpanchayat, until it is shown that eventuality contemplated under the
\n\tstatute has occurred which warrant such action. If the interim
\n\trelief as prayed for is granted, then the same would amount to
\n\tstaying the operation of the provision under act.\n<\/p>\n
It
\n\tis not in dispute that against the president no action has been
\n\ttaken and\/or no order has been made, until now, either under Section
\n\t85 or Section 87 of the Act. Further if the petitioner or any member
\n\tis aggrieved by any decision or resolution under the Act then, such
\n\tmember has remedy available under Section 249 of the Act and even
\n\tthe competent authority has the power to set the matters right.\n<\/p>\n
In
\n\tthis view of the matter, there is no justification for any
\n\tprohibitory order prohibiting an elected representative from
\n\tdischarging the duties cast on him while he holds the post and\/or
\n\tfrom carrying out the functions as required by relevant provision
\n\tand\/or from exercising the right conferred by statute, at this
\n\tstage. In my view such action would not be justified at this stage,
\n\tmore particularly in the fact and  circumstances of the present
\n\tcase. Under the circumstances, I am not inclined to grant interim
\n\trelief as prayed. Hence, the request for interim relief is declined.\n<\/p>\n
The
\n\trespondent No. 3 has filed affidavit in reply and the reply from
\n\trespondent No. 2 has not yet come on record. The petitioner may want
\n\tto respond to the reply affidavit. In that view of the matter the
\n\tfurther and final hearing of the further hearing the petition is
\n\tadjourned to 13.6.2008.\n<\/p>\n
\t(K.M.THAKER,J.)<\/p>\n
Suresh*<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Manibhai vs State on 5 June, 2008 Bench: K.M.Thaker 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) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-247430","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nManibhai vs State on 5 June, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/manibhai-vs-state-on-5-june-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Manibhai vs State on 5 June, 2008 - 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