Gujarat High Court
Bhavanbhai Bharabhai Bharwad vs State Of Gujarat & 5 on 20 December, 2016
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/21053/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 21053 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.V.ANJARIA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? Yes
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of
the judgment ? No
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of No
India or any order made thereunder ?
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BHAVANBHAI BHARABHAI BHARWAD....Petitioner(s)
Versus
STATE OF GUJARAT & 5....Respondent(s)
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Appearance:
MR SUDHIR NANAVATI, SR. ADVOCATE WITH MR DIPEN DESAI,
ADVOCATE for the Petitioner(s) No. 1
MR PRAKASH JANI, AAG WITH MR RONAK RAVAL, AGP for the
Respondent(s) No. 1 - 3
MR VC VAGHELA, ADVOCATE for the Respondent(s) No. 4
MR DIPAK DAVE WITH MR MR ANIL H PATEL, ADVOCATE for the
Respondent(s) No. 5 - 6
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 20/12/2016
CAV JUDGMENT
By means of present writ petition filed Page 1 of 21 HC-NIC Page 1 of 21 Created On Wed Dec 21 00:25:44 IST 2016 C/SCA/21053/2016 CAV JUDGMENT
under Article 226 of the Constitution, the petitioner has called in question communication-cum-agenda notice dated 14th December, 2016 issued by the Deputy Director and the District Registrar, Co-operative Societies-the third respondent herein. Thereby, the said authority convened a meeting of the members of the market committee on 19th December, 2016 at 11.30 at the venue mentioned. As per the Agenda, the meeting was meant for considering a motion of no confidence against the petitioner herein.
2. It may be stated for completion of recording the events and facts that this petition was moved on 16th December, 2016 on urgent basis for being taken up on the same date, for which, though permission was granted, the matter was refused to be taken up by passing an order as the petitioner was non-compliant of the office objections. The petition was kept on 19th December, 2016 at 10.30 a.m., however on 17th December, 2016 a note was moved before the Registrar for preponing the hearing of the petition stating that as the meeting was scheduled to take place. Permission of Honourable the Chief Justice was obtained and the matter was allowed to be taken up by the Court by holding special sitting at 05.00 p.m. 2.1 The following order was passed, extracting the relevant paragraphs.
"4.1 The submissions and contentions were advanced by the respective counsels and were considered by the Court on the aspect of admitting or not admitting the petition as well as granting or not granting the interim relief.Page 2 of 21
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5. Since today being the court non-working Saturday and the matter is taken up at 05.00 p.m. onwards, looking to the time constraint, reserved for orders.
6. Since the petition is reserved for orders, it is hereby provided that the meeting which is scheduled to take place as per Notice/Agenda dated 14.12.2016 (Page 17, Annexure-A), shall take place. The Agenda for No Confidence Motion may be undertaken which shall be by secret ballot only. The outcome of the process, however shall not be disclosed nor shall be divulged and shall be kept in a sealed cover by the competent authority-the third respondent. As far as the question of charing the meeting concerned, thereon, upon instructions from the respective clients and the officers personally present in the court, as the case may be, learned counsels for the parties stated that the meeting may be chaired by the third respondent authority. It is ordered accordingly. The Chairman as above shall conduct the meeting in accordance with law."
3. The petitioner happens to be the elected member of Agriculture Produce Market Committee, Ahmedabad, having been elected on 22nd January, 2015. Thereafter, in the meeting held on 20th February, 2015, the petitioner was elected uncontested as Vice Chairman of Agriculture Produce Market Committee (APMC). It is the case of the petitioner that since there has been a shift in the political scenario and that the ruling party has been trying to pressurise the members to remove the petitioner as Vice Chairman and wants to regain the power of the Market Committee, the motion is moved in an act far from bona fide, at a time when the term of the office of the petitioner- Vice Chairman is nearing to come to an end.
4. Heard learned senior counsel Mr.Sudhir Nanavati with learned advocate Mr.Dipen Desai for the petitioner, and learned Additional Advocate General Mr.Prakash Jani assisted by learned Assistant Page 3 of 21 HC-NIC Page 3 of 21 Created On Wed Dec 21 00:25:44 IST 2016 C/SCA/21053/2016 CAV JUDGMENT Government Pleader Mr.Ronak Raval for respondent No.1- State of Gujarat, respondent No.2-Director, Agriculture Marketing and Rural Finance and respondent No.3-Deputy Director and District Registrar, Co- operative Societies at length. Learned advocate Mr.V.C. Vaghela appeared for respondent No.4 whereas learned advocate Mr.Dipak Dave with learned advocate Mr.Anil Patel appeared for respondent Nos.5 and 6.
4.1 From the pleadings of the petition and submissions made by learned senior counsel on behalf of the petitioner, it could be well-discerned that three main contentions were raised to assail the impugned agenda notice moving a motion of no confidence. The first contention was, as contained in paragraph 3.6 of the petition, was that the agenda notice issued on the basis of the communication dated 13th December, 2016 did not state as to how many members had submitted requisition for the motion of confidence and that the reasons for such motion was also not stated; it was therefore contended that it was not at all clear as to whether the requirements of Section 17A of the Agriculture Produce Markets Act, 1963 (the APM Act) were fulfilled or not, assuming that the said Section was applicable in the present case. It was contended that the petitioner was in dark as to who has moved motion of no confidence and for what purpose.
4.2 The second contention was, as pleaded in paragraph 3.8, that the ruling party had been trying to pressurise the members and did not want to disclose Page 4 of 21 HC-NIC Page 4 of 21 Created On Wed Dec 21 00:25:44 IST 2016 C/SCA/21053/2016 CAV JUDGMENT their identities. It was contended that by forging their signature or by coercing them the motion was moved and therefore the entire exercise was mala fide.
4.3 The third contention raised was that the petitioner was elected as Vice Chairman of the Agriculture Produce Market Committee, Ahmedabad on 20th February, 2015. Provision in Section 17A of the APM Act came into force on 10th April, 2015, which provided that a Chairman or Vice Chairman of the Market Committee could be removed by submitting a motion by not less than one-third number of members of the Market Committee. It was submitted by learned senior counsel that since the petitioner's election as Vice Chairman was prior to the date of coming into force amendment in the Section, such amendment would not apply in case of one who had been elected prior to April, 2015, therefore the petitioner could not have been subjected to the application of said provision for moving no confidence motion against him. Seeking support for the last contention, learned senior counsel relied on decision of the Division Bench of this Court in Shailesh G. Patel Vs State of Gujarat decided on 27th December, 2013 in Letters Patent Appeal No.1503 of 2013.
4.4 Learned Additional Advocate General Mr.Prakash Jani submitted that there was no legal defect in the impugned agenda-cum-notice. He submitted that as it accords statutory procedure, the Court should not interfere and the members of the APMC should be left free to pursue and conduct the motion.
Page 5 of 21HC-NIC Page 5 of 21 Created On Wed Dec 21 00:25:44 IST 2016 C/SCA/21053/2016 CAV JUDGMENT Seeking to counter the third submission of learned senior counsel for the petitioner that Section 17A and the requirements thereof could not have been applied to the petitioner who was elected prior to the said Section coming into the statute book, learned Additional Advocate General relied on decision in Darshan Singh Vs Ram Pal Singh [AIR 1991 SC 1654]. He further relied on another decision of the Supreme Court in M/s.Orient Paper and Industries Limited Vs State of Orissa [AIR 1991 SC 672]. Yet another decision of the Apex Court in Yadlapati Venkateswarlu Vs The State of Andhra Pradesh [AIR 1991 SC 704] was pressed into service. Also pressed into service the decision of the Apex Court in Zile Singh Vs State of Haryana [(2004) 8 SCC 1]. The said decisions were on the principle as to when the statute can be said to have retroactive application or retroactive operation and the principles relating to the interpretation in that regard. Learned Additional Advocate General also relied on decision of this Court in N.B. Posiya Vs Director of Agriculture Market and Rural Finance [2002 (2) GLR 1132 (FB)]. Learned advocate Mr.Dipak Dave relied on the contents of the affidavit-in-reply filed on behalf of the private respondents.
5. Before proceeding to consider the contentions raised, Section 17A of the Gujarat Agriculture Produce Markets Act, 1963, as is currently in the Statute Book having been substituted and brought into force by virtue of Gujarat Act, No.14 of 2015, may be usefully extracted.
"17A. (1) One-third of the total number of members of Page 6 of 21 HC-NIC Page 6 of 21 Created On Wed Dec 21 00:25:44 IST 2016 C/SCA/21053/2016 CAV JUDGMENT the market committee intending to move a motion of non- confidence against the Chairman or the Vice Chairman, as the case may be, may give a notice thereof to the Director, where the Deputy Director and District Registrar (Co-operative Societies) is the member of such committee; and to the Deputy Director and the District Registrar (Co-operative Societies) where the Co-operative Officer (Marketing) is the member of such committee:
Provided that no such no-confidence motion shall be moved against the Chairman or, as the case may be, the Vice Chairman, unless he has completed a period of six months in his office:
Provided further that no such no-confidence motion shall be moved again within six months from the date such motion had failed earlier.
(2) The Director or the Deputy Director and District Registrar referred to in sub-section(1) or any officer authorised by him shall convene an extra-ordinary general meeting of the members of the market committee within thirty days of the receipt of the notice of such no-confidence motion to decide on such motion by method of secret ballet voting.
(3) Where the no-confidence motion is carried by the majority or not less than two-thirds of the total number of members present at the meeting and voting, the Chairman or, as the case may be, the Vice-Chairman shall cease to hold the office."
5.1 Prior to insertion of Section 17A above, there was no express provision providing for the requirement and procedure for moving a no confidence motion. By virtue of insertion of Section 17A, they are prescribed by the Legislature, firstly that the no confidence motion shall not be moved against Chairman or Vice Chairman unless he has completed a period of six months in his office. The second stipulation is that the motion shall be moved within six months from the date of moving of such motion earlier which had failed. These provisions are intended to check the abuse of motion of no confidence, to prevent the political bickering going rampant in the body of Page 7 of 21 HC-NIC Page 7 of 21 Created On Wed Dec 21 00:25:44 IST 2016 C/SCA/21053/2016 CAV JUDGMENT Agriculture Produce Market Committee and to insulate it from frequent instability. In sub-section (3) it is provided that if the motion of no confidence is carried by a majority of two-third of the total members present and voting, the Chairman or Vice Chairman, as the case may be, shall cease to hold the office. The minimum strength of one-fourth of the total number of members of the Market Committee is stipulated as a pre-condition for validly moving motion of no confidence.
5.2 A no confidence move is a democratic process in-built in the functioning of a democratic body where the representatives are elected by electing body of members, at any hierarchical level, whether it is cooperative society or parliament. Whether a statute contains procedural requirement for moving no confidence motion or not, the motion of no confidence can always be moved by the body of members if they are unable to continue reposition of their faith in elected representatives. In N. B. Posiya (supra), the question was considered and answered that even in absence of statutory provision, the elected functionary can be removed from office by passing no confidence motion. It was held that no confidence motion passed by simple majority of members present constituting forum would be valid. In Vipulbhai M. Chaudhari Vs Gujarat Cooperative Milk Marketing Federation Limited [(2015) 8 SCC 1] it was held that even in absence of any provision for moving motion of no confidence, such motion could be moved by following procedure prescribed for the election of Chairman and Page 8 of 21 HC-NIC Page 8 of 21 Created On Wed Dec 21 00:25:44 IST 2016 C/SCA/21053/2016 CAV JUDGMENT Vice Chairman and that the same was in the spirit of democracy and 97th Constitutional Amendment. True it is that if the statute prescribes the requirements, they would have to be complied with. As far as Agriculture Produce Market Committees are concerned, the procedural aspect for moving motion of no confidence have been now set out in terms of Section 17A above. Motion of confidence is validly instituted motion when moved in terms of the stipulations in the said Section.
6. Reverting to the contentions raised on behalf of the petitioner, the first contention that it was not known as to who had moved no confidence motion, could stood only for a flash of moment as in the affidavit-in-reply filed by the private respondents, copy of notice dated 07th December, 2016 given to the Director, Agriculture Produce Market Committee was placed on record, which was given under provision of Section 17A of the Act and it mentioned the name of 12 members bearing their respective signatures. It thus became evident that as many as 12 members, satisfying the requirement of strength of one-third of the total strength of Agriculture Produce Market Committee had moved the motion under the aforesaid provision under their signature. Because of this factual revealment on record of the case, the first contention of the petitioner could not be said to be surviving. The said uncontroverted aspect was indicative that the motion for no confidence was moved by the requisite majority as contemplated under Section 17A of the Act.
Page 9 of 21HC-NIC Page 9 of 21 Created On Wed Dec 21 00:25:44 IST 2016 C/SCA/21053/2016 CAV JUDGMENT 6.1 In Bhanumati Vs State of Uttar Pradesh [(2010) 12 SCC 1], the Supreme Court observed that any head of democratic institution must be prepared to face the test of confidence. The democracy demands accountability and transparency in the activity of the Chairperson. Observing further in the context of the functioning of the panchayati raj institution, it was stated that unless the incumbent elected to the office enjoys the continuous confidence of the majority members of the Panchayat, then only he can legitimately discharges functions and duties. In Pratap Chandra Mehta Vs State Bar Council of M.P. [2011 (9) SCC 573] and in Usha Bharti Vs State of U.P. [2014 (7) SCC 663], it was stated that in a democratic institution, confidence is the foundation on which the superstructure of democracy is built. The democratic accountability rests on the confidence of the electorate and if the representative body does not have confidence in the office-bearer whom they elected and selected, democracy demands such officer to be removed in a democratic manner.
6.2 In Usha Bharti (supra), the Apex Court was explicit to emphasis, "In our opinion, the provision for removing an elected representative such as Panchayat Adhyaksha is of fundamental importance to ensure the democratic functioning of the Institution as well as to ensure the transparency and accountability in the functions performed by the elected representatives." (Para 53) 6.3 In Vipulbhai M. Chaudhari (supra) the Supreme Court succinctly put it in the following words.
Page 10 of 21HC-NIC Page 10 of 21 Created On Wed Dec 21 00:25:44 IST 2016 C/SCA/21053/2016 CAV JUDGMENT "If a person has been selected to an office through democratic process, and when that person loses the confidence of the representatives who selected him, those representatives should necessarily have a democratic right to remove such an office-bearer in whom they do not have confidence, in case those institutions are viewed under the Constitution/statutes as democratic institutions."
(para 20) 6.3.1 What was stated in the context of body of co-operative society, in Vipulbhai M. Chaudhari (supra), applies to the body of Agriculture Produce Market Committee, "A cooperative society is registered on cooperative principles of democracy, equity, equality and solidarity. Democratic accountability, mutual trust, fairness, impartiality, unity or agreement of feeling among the delegates, cooperativeness, etc. are some of the cardinal dimensions of the cooperative principles. A body built on such principles cannot be led by a captain in whom the co-sailors have no confidence."
(Para 19) 6.4 The element of having a sustained confidence in an elected representative or an elected office- bearer in the domestic body such as Agriculture Produce Market Committee functioning at its levels, is inseparable facet of democratic functioning of such institution or body. The faith and the confidence enjoyed by the elected person in any democratic body is the bedrock of his position. The strength and legitimacy to hold an elected office is derived from the confidence the elected person garners and enjoys from the body of persons which has elected him.
6.5 As the placing confidence in the elected representative is a democratic act, withdrawing such confidence is equally an act on the democratic spirit.
Page 11 of 21HC-NIC Page 11 of 21 Created On Wed Dec 21 00:25:44 IST 2016 C/SCA/21053/2016 CAV JUDGMENT Moving a no confidence motion is a democratic act and consideration thereof is also a democratic process. There may be variety of reasons for the members of an elected body to move such a motion against an elected person. These reasons have their own arena, not to be ordinarily amenable to judicially measurable or manageable standards. Once an elected person looses the confidence of the electors, he has no right to continue in the office. The no confidence would be moved, debated and would culminate into passing of it or failing thereof.
6.6 Motion of no confidence being a democratic act must be allowed to go unhindered like any other democratic process. The movers of the motion have democratic right to move the same. The election person against whom it is addressed, is duty-bound to face it. The process must be allowed uninterrupted, unless fraught with procedural wrangle in terms of want of statutory fulfillment or democratic fairness. Such is not the case here. The motion of no confidence who have to be allowed a free passage to culminate into a democratic way. The Court should always be disinclined to stay the motion of no confidence or the agenda notice issued in accordance with law. As already recorded, the impugned agenda notice satisfied the requirement of Section 17A of the Act.
6.7 It was a vain contention that no reasons were disclosed why the motion was moved against the petitioner. The Supreme Court in Babubhai Muljibhai Patel Vs Nandlal Khodidas Barot [AIR 1974 SC 2105] Page 12 of 21 HC-NIC Page 12 of 21 Created On Wed Dec 21 00:25:44 IST 2016 C/SCA/21053/2016 CAV JUDGMENT stated that there was no imperative requirement in the case of a motion of no confidence that it should be passed on some particular ground. Bringing out the difference between a motion of no confidence and a censure motion, it was stated that in case of censure motion it was necessary to set out ground or charge on which it is based, but a motion of no confidence need not set out any ground. In a vote of censure what is presupposed is that the persons to be censured have been guilty of some propriety or lapse or omission which makes it necessary to specify such impropriety or lapse while moving a vote of censure. It was stated that no such consideration arise when a motion of no confidence is moved. It was observed, "there is no legal bar to the passing of a motion of no-confidence against an authority in absence of any charge or impropriety or lapse on part of the authority. The essential connotation of a no-confidence motion is that the party against whom such motion is passed has ceased to enjoy the confidence of the requisite majority of members".
6.8 The above conceptualization about the no- confidence motion, answers and disposes of the contention of learned senior counsel that the petitioner was not made aware about the reasons and the agenda notice did not disclose the reasons for moving the motion. The decision in Babubhai Muljibhai Patel (supra) was relied on by this Court in N.B. Posiya (supra) and it was observed, "... ... ... it is clear that no-confidence motion does not require statement of any reasons for moving the motion Page 13 of 21 HC-NIC Page 13 of 21 Created On Wed Dec 21 00:25:44 IST 2016 C/SCA/21053/2016 CAV JUDGMENT nor does it require passing of motion by stating reasons for passing the same. As has been rightly emphasised by the Counsel for the respondents, confidence in the elected holder of office is the soul of democracy. All democratic institutions function on mutual confidence between the members and their leader. Loss of confidence without anything else, which is based on objective basis, is sufficient to move the motion."
7. The second ground raised was that as the action of moving the motion being mala fide, the same may not be allowed to sustain. In Indian Railway Construction Company Limited Vs Ajay Kumar [(2003) 4 SCC 579], the Apex Court observed that burden of establishment of mala fides is very heavy on the person who alleges it. The allegations of mala fides are often mode easily made, than proved, and the very seriousness of such allegations demands proof of a higher order of credibility, observed the Supreme Court. The principle was stated that the Court should be slow to draw dubious inferences from incompetent facts placed before it by a party, particularly when such grave imputations are made against the order of an office who has high responsibility in the administration.
7.1 In Mutha Associates Vs State of Maharashtra [(2013) 14 SCC 304], the writ petition was filed by APMC in which the charge of mala fides was leveled against the then Minister, but the Court found that the same was without specific particulars or details of how the decision taken by the Minister was influenced by the developer or any other person. The High Court held that the Minister's action was under
the influence of the builder, attributing mala fides Page 14 of 21 HC-NIC Page 14 of 21 Created On Wed Dec 21 00:25:44 IST 2016 C/SCA/21053/2016 CAV JUDGMENT simply because the order was found to be untenable in law. The Apex Court observed that no matter the circumstances enumerated by the High Court may have given a rise to strong suspicion that the Minister acted out of extraneous consideration, but the suspicion, however strong cannot be proof of the charge of mala fides.
7.2 The Supreme Court made following observations by endorsing to the contention of the counsel that mere fact that an order passed by constitutional authority was found to be legally unsustainable, did not ipso facto mean that the order was mala fide, by holding "The law regarding pleading and proof "malice in fact"
or mala fides as it is in common parlance described is indeed settled by a long line of decisions of this Court. The decisions broadly recognize the requirement of allegations suggesting "malice in fact" to be specific and supported by necessary particulars. Vague and general averments to the effect that the action under review was taken mala fide would not therefore suffice. Equally well settled is the principle that the burden to establish that the action under challenge was indeed mala fide rests heavily upon the person making the charge; which is taken as quasi-criminal in nature and can lead to adverse consequence for the person who is proved to have acted mala fide. There is in fact a presumption that the public authority acted bona fide and in good faith." (Para 42) 7.3 When the pleadings and ground of mala fide are examined in light of the aforesaid principles, the case on this count is not only put forth in a cryptic way but falls far short of the facts and the averments on the basis of which malice could be shown in respect of the impugned action. Merely stating that "there has been a shift in political scenario and the ruling Page 15 of 21 HC-NIC Page 15 of 21 Created On Wed Dec 21 00:25:44 IST 2016 C/SCA/21053/2016 CAV JUDGMENT party pressurising to remove the petitioner as Vice Chairman and wants to regaining the power of the Market Committee" is not sufficient allegation to constitute and to conclude that the exercise undertaken is mala fide. Nor the averments in paragraph 3.10 that officer had been given inquiry with regard to employment of staff and he gave ex- parte report against the office bearers, by itself is not indicative of the action being mala fide.
7.4 An action to be considered or treated as mala fide, has a definite parameters of law as could be noticed above. The vague and bald assertions of the petitioner cannot establish mala fide or malice in fact and the said contention has to miserably fall flat.
7.5 The political pressure or political motive may not be a good argument at all without anything else legally sustainable. Nor does it add to a plea of mala fide by itself. The corridors of power always hum with political activities, for, they are the corridors of power. Every hummer and every political move therefrom do not become subject matter of interference by the Court of law and the writ court, of course, unless the action, decision or conduct is in contravention of some statutory provision, is to defeat the law or the interference is necessary to secure and protect some higher legal principle or Constitutional enforcement. Every political maneuvering, unless amounts to violation of law, is no ground in a court of law.Page 16 of 21
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8. This takes to the third and last contention, namely that provision of Section 17A was brought into force subsequent to the petitioner's election as Vice Chairman, cannot apply to his case. The counsel wanted to contend thereby that it was a subsequently inserted provision and cannot be applied retrospectively.
8.1 Before dealing with this submission, the reliance placed by learned senior counsel in Shaileshbhai Govindbhia Patel (supra) may be dealt with. In that case, the question involved was whether the petitioners who were the office bearers of the District Cooperative Milk Producers Union elected for a period of one year under the existing bye-law in operation at the relevant time, could have been allowed to continue for a period of three years in light of the amendment in Clause (1C) of Section 74 by which it was provided that the term of the office of the elected members of the Managing Committee and its office bearers shall be five years from the date of election and that the term of office bearers shall be co terminus with the term of Managing Committee. In the unamended law, the term of the Managing Committee was three years which came to be amended to five years as per the amended provision. The office bearers-the petitioners in that case were elected by the members of the Managing Committee for a period of one year. The contention raised on behalf of the petitioners that since the term of office bearers is made co terminus with the term of Managing Committee which was under the unamended law was for three years, the Page 17 of 21 HC-NIC Page 17 of 21 Created On Wed Dec 21 00:25:44 IST 2016 C/SCA/21053/2016 CAV JUDGMENT petitioners should be allowed to continue for a period of three years. Learned Single Judge as well as the Division Bench, not accepting the said contention, dismissed the writ petition and the Letters Patent Appeal respectively. The facts of the aforesaid case were quite different and could hardly match with the facts of the case on hand. The said decision in Shaileshbhai Govindbhai Patel (supra), would not in any respect come to the rescue of the petitioner herein for his contention.
8.2 Noticing the decisions relied on by learned Additional Advocate General, Darshan Singh (supra) was a case where provision regarding alienation of ancestral property was under the Punjab Custom (Power to Contest) Act. Section 7 has amended in 1973, placed a complete bar to contest the alienation of ancestral or non-ancestral immovable property. It was held that bar to contest placed by Section 7 applies to the pending proceedings. The decision in M/s.Orient Papers and Industries Limited (supra) as well as in Yadlapati Venkateswarlu (supra) was on the aspect of retrospectivity. Similarly, decision in Zile Singh (supra) was under Haryana Municipality Act, 1973 in respect of disqualification from membership of Municipality on the ground of having more than two children. The disqualification was brought into force by amending Act. The Court explained as to how the declaratory statute would operate. The principles of interpretation propounded by the aforesaid decisions were helpful in appreciating the submissions of the petitioner about the applicability of Section 17A of Page 18 of 21 HC-NIC Page 18 of 21 Created On Wed Dec 21 00:25:44 IST 2016 C/SCA/21053/2016 CAV JUDGMENT the Act to his case.
9. In Punjab University Vs Subhash Chander [AIR 1984 SC 1415] the Supreme Court had an occasion to deal with the Regulation regarding some percentage of marks to be given as grace marks to the candidates appearing in the university examination. The candidates have joined MBBS Course in the year 1965 and appeared for final MBBS examination in 1974. In the meanwhile, in the year 1970, the Regulation came to be amended reducing the percentage of grace marks for MBBS candidates. The respondent-student contended that the old Regulation which was in force when he joined the course in the year 1965 should be made applicable to him and he should be declared to have passed the final examination in full including in the subject of Midwifery, in which he had failed for want of marks in view of the amended Regulation.
9.1 The Apex Court held, "... ... declaration that as failed by virtue of amended regulation as regards grace marks was not invalid. There was no element of retrospectivity in the change brought by the amendment. It cannot be said to be retrospective in operation merely because though introduced in 1970 it was applied to S, who appeared for the final examination in 1974, after he had joined the course earlier in 1965. No promise was made to him at the time of his admission in 1965 that there will be no alteration of the rule or regulation in regard to the percentage of marks required for passing any examination or award of grace marks and that the rules relating thereto which were in force at the time of his admission would continue to be applied to him until he finished his whole course. (1976) 78 Pun LR 920 (FB), Reversed."
(Paras 9 to 12) 9.2 Reverting to the facts of this case, the petitioner when got elected as Vice Chairman of the Page 19 of 21 HC-NIC Page 19 of 21 Created On Wed Dec 21 00:25:44 IST 2016 C/SCA/21053/2016 CAV JUDGMENT APMC did not have any right, much less a vested right to be governed by particular kind of provisions of law in relation to no confidence motion. If after his becoming a Vice Chairman, the provision was amended, such amended provision would certainly apply in respect of the no confidence motion moved during his tenure as Vice Chairman. If the contention on this score is based on the principle of retrospective application or retroactive operation of Section 17A, such embargo would arise only when the provision takes away vested right of a person. Indeed there is no question of retrospective operation of the provision in the case of the petitioner. Provision which was in force at the time of applying to the case of the petitioner, would operate. The contention could in no way be countenanced that as the petitioner was elected as Vice Chairman prior to the provision of Section 17A of the Act brought into force, it would not apply to move a no-confidence motion in accordance with the requirements thereof.
10. For the foregoing discussion, elaboration and reasons, no merit is found in the petition. The prayer to set aside agenda notice dated 14th December, 2016 issued by the third respondent could not be granted. The meritless petition is hereby dismissed.
11. In view of dismissal of the petition as above, the direction issued while reserving the judgment in this petition on 17th December, 2016 requiring to keep the result of the no confidence motion process into a sealed cover is hereby lifted and vacated, the competent authority shall forthwith Page 20 of 21 HC-NIC Page 20 of 21 Created On Wed Dec 21 00:25:44 IST 2016 C/SCA/21053/2016 CAV JUDGMENT announce the result.
(N.V.ANJARIA, J.) FURTHER ORDER At this stage, learned advocate Mr.Dipen Desai for the petitioner requests the Court to extend the interim order which was passed on 17th December, 2016. He submitted that the petitioner would prefer to approach higher forum. It was further submitted that the petitioner would not function and would not attend the Market Committee place or meeting during the extended period, if extended.
Learned Additional Advocate General Mr.Jani strongly opposed the prayer, stating that the result of the no confidence has to be allowed an immediate free way.
In the facts and circumstances of the case, since the petitioner wants to approach the higher forum, directions in the paragraph 11 of the aforesaid judgment are suspended till 23rd December, 2016.
(N.V.ANJARIA, J.) Anup Page 21 of 21 HC-NIC Page 21 of 21 Created On Wed Dec 21 00:25:44 IST 2016