About 3 years ago, the
clients approached me for this case with an interesting set of facts. They came
up with a narration that a lady Sarpanch elected directly by the villagers was
sought to be removed from the post by bringing a no-confidence motion against
her within less than a month of her taking charge. I was not aware at that
point of time that the said discussion would end up in the reported case of
Shivangiben Chetankumar Patel vs State of Gujarat and Ors.(as reported in 2019(2)
GLR 865)
During the discussion, a fresh book of Gujarat
Panchayat Act, 1993 reached my table and the provisions were given a glance. A
confident smile comes on the face and I moved on to inquire as to why they
approached me instead of any other advocate. They responded by saying that they
did approach a few advocates and all of them have said that it was a very good
case on facts and they shall focus on arguing the petition on the ground that
such immediate proposal for bringing a no-confidence motion could not have been
brought against the lady Sarpanch. I prima-facie agreed to the same proposition
on facts, but then it was pointed out to me by the client and the briefing
advocate accompanying him that there is already a decision delivered by the
Gujarat High Court in the case of Thakore Gandaji Chundaji[i] wherein the Division Bench had upheld the validity of
Section 56 of the Gujarat Panchayat Act, 1993 and it has been further held in
the said judgement that there is no restriction as to bringing a no-confidence
motion against the Sarpanch in any time from the date of her appointment and
the entire democratic principle permits the no-confidence motion to be
initiated by the elected members against the directly elected Sarpanch. The
client clearly mentioned that there was no answer to the said judgement by any
of the advocates whom they approached and that is why they wanted something out
of the box to overcome the situation at hand.
After the clients left, it was more of a brain
storming session for me as the law of elections and no-confidence were much
clearer and the scope under writ jurisdiction was also limited. Also, I could
not find a single decision of the Court that could come to our rescue. With
this I was clear that an extensive reading on the issues at hand lie ahead, so
a long night was to follow for some in depth research on the same.
The only relevant case that I could find was the
case of Vipul Chaudhary vs State of Gujarat[ii] wherein the Honorable Supreme Court went on to explain
the democratic principles of no-confidence motion. It was a case wherein the
Honorable Supreme Court went on to read the essential requirements for the
procedure of moving a no-confidence motion in co-operative societies with a
restriction as to the period in which the motion can be brought. The moment
this decision was traced, I picked up the phone and spoke to a fellow advocate
friend; Jay Trivedi and sought his advice on the said judgement. After a long
discussion the petition was drafted on the grounds of unreasonable action and
the failure to adhere to the democratic principles.
The petition was filed on urgent basis and the
petition was listed on 14.02.2017 at Sr. No. 1 in the court of Honorable Mr.
Justice R. M. Chhaya. It is always convenient to argue in a court which reads
every page we have filed and the same was the case here. My matter was called
out and the following conversation took place-
Me: Lordship, in less than a month of me taking
over the charge as Sarpanch the members have sought to move a motion of
no-confidence against me. Absolutely a high handed action on the part of the
members
Hon’ble Justice Chhaya : So what, it can be
moved on the very next day
Me: Not after Vipul Chaudhary’s Case
Hon’ble Justice Chhaya : It was under the Co-operative
Societies Act
Me: But the principle would be the same. It is
about no-confidence motion by the members against the President
Hon’ble Justice Chhaya: Still a different Act.
Me: But Sir, still the same principle. (I tried
to read the concluding paragraphs of the said judgement)
Hon’ble Justice Chhaya: Ok . Will issue notice
and make it returnable day after tomorrow. The motion is scheduled for 17th .
Me: Yes Sir. But it may create difficulty if not
stayed.
Hon’ble Justice Chhaya: We will hear it on 16th itself.
Me: Ok Sir.
After that Sr. No.2 was called out and
notice was issued in it. But immediately I made a mention
Me: Lordships, May I make a request that let
notice be waived by the AGP on behalf of the state.
Hon’ble Justice Chhaya: Yes. They will waive.
Me: Obliged
Hon’ble Justice Chhaya: Wait Mr. Nair. Let the
matter be taken up at 2:30 and the AGP will take instructions by then. I will
also go through the judgement. You give the copy of the judgement to the Court
Master.
Me: Surely Sir.
Then the matter was scheduled to be taken up in
the second half itself, which meant that the Honorable Court would be ready
after reading the judgement and shall also see the facts of the case. After one
more brainstorming session with Jay, various other paragraphs of Vipul Chaudhary
case were discussed and the Doctrine of Constitutional Silence was
given a thought.
It was then with the commencement of second half
that my matter was called out before the Hon’ble Justice Chhaya:
Mr: Lordship! May I make a request to refer to
para-25 and 48 of the judgement? Hence in my respectful
submission the Court may read the provision in a manner so as to bring it in
consonance with the Constitution.
Hon’ble Justice Chhaya: Now stop. I am granting
you interim relief.
Me: Immensely Obliged. (Arranging the file and the books and just
focusing on the dictation of order. Finally the order was dictated and I had
secured an interim relief)
The moment I came out of the court room, I
heaved a sigh of relief and yes it is the time for celebration now. The moment
of celebration was flooded with calls from people whom I have always looked up
to. The matter was now directed to be listed on 16.02.2017.
By that time the battlefield had to be kept
ready and it happened on 16.02.2017 wherein the members of the Panchayat came
up with a Civil Application for joining party wherein they had engaged Senior
Advocate Shri Dhaval Dave and the State of Gujarat was now being represented by
the Government Pleader Smt. Manisha Luvkumar. On 16.02.2017 the matter could
not be heard as the Civil Application was yet to be decided and the main matter
could not have been taken up without it. The matter had already gained some
popularity in the court premises as it was the first time that in such issue an
interim relief was granted and the legality of the issue involved would change
the course of election law to a great extent. The scenario of 16.02.2017 made
it clear that this is going to be a fierce battle. The matter was then put up
for hearing on a fixed date with an understanding that the matter will be taken
up on that day itself.
The matter required much deeper study and so the
only remedy available to me was to approach my Guru- Senior
Advocate Shri. S. N. Shelat in the matter. It was a case which was discussed with
him even before filing and so it was easier to brief him on facts. The focus
here was on the the law so it was only Shelat Sir who could have given it the
touch it required. There were discussions on the applicability of doctrines and
dealing with it in the required sense so as to make it applicable in the
present case.
On the date of hearing Shelat Sir started with
the facts and immediately proceeded on the scheme governing the Panchayat and
the requirement of reasons and the need of the Court to read the scheme
harmoniously. The matter was defended tooth and nail by the State Government
and the private respondents. The law favoured them but the facts were with us
and ultimately we lost the petition wherein the Honorable Justice Chhaya
dismissed the petition vide order dated 03.04.2017 on the grounds of
impermissibility to read into the provision, scheme of the act did not restrict
the no-confidence motion and it did not even provide for assigning reasons for
bringing no-confidence motion against the elected members and so the petition
was not to be entertained.
Immediately on the next day an appeal was filed
and circulation was sought for 06.04.2017. In the meantime the private
respondents came to know that appeal was filed before the Division Bench and so
a notice for convening the meeting on 06.04.2017 at 10:30 AM was issued by the
TDO. The intimation as to the appeal was given to the TDO but ultimately the
meeting was convened even before the matter could be taken up on 06.04.2017.
The meeting was convened at 10:30 AM and a no-confidence motion was passed
against the Sarpanch. In spite of the fact that the TDO and all the concerned
were pointed out that that the Appeal would be heard by 12, the authorities
proceeded with the proceedings and the Sarpanch was ousted.
I was informed about the motion by the clients
and I informed Shelat Sir about the same to which Sir smiled and asked me to
get the Gujarat Panchayat Act and he just turned some pages and said “OK. Now let’s see once the matter is called
out.”
The matter was listed before the Court of
Hon’ble the Chief Justice Mr. R. Subhash Reddy and Hon’ble Mr Justice V M
Pancholi. The matter was called out at 11:15 AM and the respondents were
already there being represented through Government Pleader and Senior Counsel
Mr. Dave.
Shelat Sir in his usual style even without
opening the brief started by stating:
Shelat Sir: I am a Lady Sarpanch elected at the
wish of the village and these 11 members don’t want me as Sarpanch. Let me work
first and then test the confidence in me.
Chief Justice Reddy: We have gone through it.
This is to be admitted.
Shelat Sir: We have been informed that they have
moved the requisition in a hurry this morning and motion of no-confidence is
passed against us. My Lords may just peruse the provisions of Section 56 which
provides that even after passing of the motion we continue to remain in the
office for 3 days.
Chief Justice Reddy: We are granting status-quo.
Counsels for the Respondents: She is already
removed by the motion and she may not be permitted to continue.
Chief Justice Reddy: That is why Status-Quo. She
needs to continue as the Sarpanch. The village wants her and only you 11
members don’t want her.
Chief Justice Reddy then dictates the order of
granting interim protection to us and again a sigh of relief and this time
coupled with a moment of joy.
It was then the matter was pending for quite
some time and the other side made request to the Court a lot of times to take
up the matter but ultimately it was taken up for hearing and the matter was
heard for 3 days in different sessions.
It was the arguments that followed for these 3
days displayed how Shelat Sir can destroy a formidable opposition even when the
case laws are against you but still you can evolve a new principle altogether
to teach the next generation how a matter is to be argued on principles. Shelat
Sir started with the facts and pointed out the principles that were to be kept
in mind when such issue is to be adjudicated by the Court. The arguments were on the
principles of purposive interpretation of statue, harmonious
construction, doctrine of constitutional silence, 73rd Constitutional
Amendment and governing principles of stability, certainty and continuity and
most importantly on the doctrine of reasonableness. The essential
element that was to be considered by the Court in this case was how reasonableness can be
read into a scenario where the legislation does not even require reasons. Some
important submissions made by Shelat Sir are required to be mentioned herein:
Shelat Sir: If such action is permitted to
continue, the action runs contrary to the 73rd Amendment which
mandates stability and continuity as its objectives.
Shelat Sir: Vipul Chaudhary case not just reads
no-confidence as a democratic principle but also reads time as an essential
element to adhere to the same. This case covers my case completely. This is
point blank covered by Vipul Chaudhary’s case.
Shelat Sir: I am aware that provisions of the
Panchayat Act do not require reasons to be recorded for moving a
no-confidence motion. Non-requirement of reasons would not dispense with
the requirement of reasonableness. Any action if found to be unreasonable
is required to be struck down by this Court in writ jurisdiction. My argument
is supported by Singhal’s Case.
Shelat Sir: Purposive construction of the
statute requires reasonableness to be read into it. That does not mean
reading into the provision but, any action failing on reasonableness is
required to be tested keeping in mind the cardinal principle of purposive
construction.
The appeal was opposed by the Senior Counsel for
the private respondents and the learned Additional Advocate General on behalf
of the State. The aspect of reading in or reading into was argued by the
respondents and also the question as to the non-requirement of reasons for
moving no-confidence as the no-confidence itself is a reason for throwing out
the elected Sarpanch.
It was on the fateful day of 09.05.2018 that the
Honorable Division bench was pleased to deliver the verdict in our favour by
allowing the appeal and quashing and setting the requisition and subsequent
motion of no-confidence which was passed prior to hearing of the appeal.
The judgement lays down important guidelines by
deviating from the previous instances wherein the Writ Courts have thought it
fit not to interfere in such matters, but the Court in this while allowing the
appeal distinguished various judgements and went on to even issue general
directions restricting the members from moving a requisition within
a period of one year from the date of election and with a further
restriction in case of failure to pass the motion that no subsequent motion
could be moved within a period of six months.
Every bit of the judgement reflects the intent
of judiciary to make sure that the Constitution and its ethos are followed in
proper sense and no one should be able to take the benefit of its silence and
if there is silence then courts can step into it to make sure the actions
conform to the standards of the Constitution.
The court also laid down an important principle
to draw a line of distinction between reasons and reasonableness as
it was a settled law that reasons are not required for moving a no-confidence
motion, but this time court went a step ahead while accepting the principle
developed by Shelat Sir during the course of arguments that reasons
may not be required, but reasonableness cannot be given a go by.
“Reasons may
not be required, but Reasonableness is”
-S.N.Shelat, Sr. Advocate
Vikas V Nair
August 9, 2020
[i] Special Civil Application No. 3820 of 1999
, decision dated 5.10.1999
[ii] AIR 2015 SC 1960
