Full Judgment
R.K. Abichandani, J.
1. The petitioners who are elected members of Saij Gram Panchayat have challenged the validity of appointment of the Respondent No. 3 as Administrator in place of the suspended Sarpanch of the Panchayat, though the tenure of the Panchayat of five years from its first meeting held on 17th Mar., 1992 is subsisting.
2. The Saij Gram Panchayat which was constituted on 23rd Feb., 1992 as per the provisions of the Gujarat Panchayats Act, 1961 held its first meeting on 17th Mar, 1992 and its tenure was for a period of five years under the law. One Raijiji Mangaji Thakore was elected as the Sarpanch of the Panchayat. In the first meeting of the Panchayat, Amaji Shankarji Thakore came to be elected as Upa-Sarpanch. The petitioners were elected as members in the general election. According to the petitioners, the Sarpanch was involved in an offence of murder punishable under Section 302 of the Penal Code and by an order dt. 28th July, 1993, he was suspended by the competent authority as Sarpanch under the provisions of Section 51(1) of the said Act. On his suspension, the functions were to be discharged by the Upa-Sarpanch Amaji Shankarji Thakore. Thereafter, since the Upa-Sarpanch Amaji Shankarji Thakore also came to be involved in an offence involving moral turpitude, the competent authority by an order dt. 7th Apr., 1994 suspended the Upa-Sarpanch under Section 51(1) of the said Act. Thereupon, by order dt. 11th Apr., 1994 issued by the Taluka Development Officer of the Taluka Panchayat, Kalol, the respondent No. 3 was appointed as an Administrator under the instructions purportedly given under Section 53(3) of the said Act by the District Development Officer. Accordingly, the respondent No. 3 who was appointed as administrator, took over charge as Sarpanch of the Panchayat on 18th Apr., 1994. The petitioners have prayed for a Writ of Quo Warranto questioning the authority of the respondent No. 3 to function as a Sarpanch.
3. The learned Counsel for the petitioners contended that Section 53(3) of the said Act did not authorise appointment of an Administrator in the event of suspension of Sarpanch and/ or Up-Sarpanch. On the other hand the learned Counsel appearing for the respondents contended that when Sarpanch and Upa-Sarpanch both got suspended, (sic) Reliance was placed in support of this submission on the provisions of Section 53(3) of the said Act, under which when offices of both the Sarpanch and Upa-Sarpanch become vacant simultaneously, the Taluka Development Officer in the case of a Gram Panchayat may authorise an officer, pending the election of the Sarpanch, to exercise all the powers and perform all the functions and duties of Sarpanch.
4. Under Section 47 of the said Act, all the executive powers of a Gram Panchayat vest in the Sarpanch. In absence of the Sarpanch, the Upa-Sarpanch is required to preside over and regulate the meetings of the Panchayat and pending the election of the Sarpanch, (sic) have been instituted, may be suspended from office by the District Development Officer. Both the Sarpanch and the Upa-Sarpanch were suspended by the District Development Officer under different orders as aforesaid, in exercise of his powers under Section 51(1) of the said Act. The moot question which therefore arises is, as to whether suspension of both the Sarpanch and the Upa-Sarpanch warranted appointment of an Officer to discharge the functions of a Sarpanch under Section 53(3) of the said Act on the ground that offices of both the Sarpanch and Upa-Sarpanch had become vacant simultaneously.
5. Under Section 48 of the Act, there is a provision made regarding motion of no confidence against Sarpanch or Upa-Sarpanch and it is provided that on the motion being carried by a majority as prescribed, the office held by such Sarpanch or the Upa-Sarpanch, as the case may be, shall be deemed to have become vacant. Then there is a provision under Section 49 of the said Act for removal from office of the Sarpanch or the Upa-Sarpanch, here is, however, no provision in Section 51 of the said Act stating that the office of the Sarpanch or the Upa-Sarpanch shall be deemed to be vacant on their being suspended under Section 51(1). On the contrary under Section 51(2) of the said Act there is a clear provision that where any Sarpanch or the Upa-Sarpanch has been suspended under Sub-section (1) of Section 51, another member of the Gram Panchayat shall, subject to the conditions to which the election of the Sarpanch or Upa-Sarpanch was subjected, be elected to perform all the duties and to exercise all powers of Sarpanch or Upa-Sarpanch during the period for which such suspension continues. This provision clearly indicates that the period of suspension of a Sarpanch or Upa-Sarpanch would not constitute a vacancy in the office of a Sarpanch or Upa-Sarpanch, There is a mandate under Sub-section (2) of Section 51 that in the event of suspension of a Sarpanch or an Upa-Sarpanch, another member of the Gram Panchayat should be elected to perform the duties of a Sarpanch or Upa-Sarpanch, as the case may be. The position, would remain the same even if both Sarpanch and Upa-Sarpanch stand simultaneously suspended under Section 51(1) of the said Act. Therefore, when the case clearly falls under Section 51(2) whereunder provision is made for the interregnum period during which the suspension operates, there would be no occasion for appointing an Officer to function as a Sarpanch under Section 53(1) of the said Act.
6. Thus, since suspension of Sarpanch or Upa-Sarpanch ordered under Section 51(1) did not bring about a vacancy in the office of Sarpanch or Upa-Sarpanch, the respondent No. 3 could not have been appointed as an Administrator to discharge the function of Sarpanch, under the provisions of Section 53(3) of the said Act and he has therefore, no right to function as a Sarpanch of the said Panchayat under the order dt. 8th April, 1994 passed by the Taluka Development Officer on instructions said to have been received by him from the District Development Officer under letter dt. 8th Apr., 1994. A Writ of Quo Warranto is therefore, issued declaring that the appointment of respondent No. 3 made under Section 53(3) of the said Act to function as a Sarpanch of the said Gram Panchayat, is illegal and invalid and he is directed not to discharge functions of a Sarpanch of the said Panchayat under the order dt. 11th Apr., 1994, which is hereby set aside. It will now be open to the Panchayat to elect another member of the Panchayat to perform the duties and exercise the powers of a Sarpanch and Upa-Sarpanch during the period for which the suspension of Sarpanch and Upa-Sarpanch continued. Rule is made absolute accordingly with no order as to cost.