Gujarat High Court
Shivabhai vs State on 11 May, 2012
Author: K.M.Thaker
Bench: K.M.Thaker
Gujarat High Court Case Information System
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SCA/4087/2012 10 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4087 of
2012
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SHIVABHAI
AMRABHAI BHURIYA & 1 - Petitioner(s)
Versus
STATE
OF GUJARAT THRO DEPUTY SECRETARY(APPEALS) & 12 - Respondent(s)
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Appearance :
MR
MIHIR JOSHI, SR. ADVOCATE, WITH MR. DHAVAL D VYAS for Petitioner(s) :
1 - 2.
MR JANAK RAVAL, AGP for Respondent(s) : 1,
NOTICE SERVED
BY DS for Respondent(s) : 1 - 3.
MR VC VAGHELA for Respondent(s) :
4 - 12.
- for Respondent(s) :
13,
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CORAM
:
HONOURABLE
MR.JUSTICE K.M.THAKER
Date :
11/05/2012
ORAL ORDER
The petitioners have taken out present petition seeking below mentioned reliefs:-
"46. (A) The Hon'ble Court be pleased to issue a writ of certiorari, or writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the the order dated 27.03.2012 passed by the respondent no.1 at Annexure-A to this petition and be pleased to quash and set aside the communication dated 28.03.2012 issued by the respondent no.3 at Annexure-B to this petition.
(B) The Hon'ble Court be pleased to issue a writ of mandamus, or writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondent authorities not to consider the motion of no confidence dated 29.02.2012 since the same is signed by the respondent no.12 who has ceased to be member of the Market Committee.
(BB) The Hon'ble Court be pleased to call for the record of the meeting of Agriculture Produce Market Committee Deodar held on 2.4.2012 and be pleased to quash and set aside the said proceedings of the meeting of Agriculture Produce Market Committee, Deodar held on 2.4.2012.
(C) Pending final hearing and disposal of the petition, the Hon'ble Court be pleased to stay the execution, operation and implementation of communication dated 28.03.2012 issued by the respondent no.3 at Annexure-B to this petition.
(CC) Pending final hearing and disposal of the petition, the Hon'ble Court be pleased to stay the execution, operation and implementation of the proceedings conducted in the meeting dtd. 2.4.2012 of Agriculture Produce Market Committee, Deodar."
2. So as to support and justify the reliefs prayed for, the petitioners have stated below mentioned facts:-
2.1 The petitioner No.1 has claimed that he is a Chairman of Agriculture Produce Market Committee [hereinafter referred to as "APMC"
for short], Deodar and petitioner No.2 is one of the Directors. It is claimed that the election of said APMC was held on 3.3.2011 wherein the petitioner No.1 was elected from Cooperative Marketing Constituency and petitioner No.2 came to be elected from Traders Constituency. Subsequently, the petitioner No.1 also came to be elected as Chairman. The market committee consists 17 directors out of whom, 14 directors are elected directors and 3 directors are nominated. It is also alleged that respondent No.12 contested the election from Agriculturists Constituency but did not succeed and thereafter, he was nominated by Deodar Gram Panchayat in exercise of provision under Section 11 (1)(iv) which permits nomination by local authority. It is also alleged that the term of the Gram Panchayat (who nominated respondent No.12) came to an end in December-2012 and the election of the Panchayat was held on 29.12.2012. It is claimed by the petitioners that the respondent No.12 was nominated by the earlier body of the Panchayat however after the elections of the Panchayat held on 29.12.2011, the new body did not forward any nomination to the market committee. In background of such facts, the petitioners have claimed that the nomination of respondent No.12 came to an end upon expiry of the term of the Panchayat in December, 2012. It is also claimed by the petitioners that until now the new body has not forwarded its nomination to the market committee. It is also claimed that the committee has vide its letters dated 3.3.2012 and 8.3.2012 requested the Panchayat to forward the nomination but it has yet not been forwarded.
3. It emerges from the record that on 29.2.2012, the respondent Nos.4 to 11 moved motion of no confidence against petitioner No.1. The petitioners alleged that respondent Nos.4 to 12 have formed a group and want that the petitioner No.1 should be removed from the post of Chairman. The respondent No.2 director, in view of the said motion of no confidence directed, vide his order dated 1.3.2012, the District Registrar to call a meeting of the market committee. The meeting was convened on 6.3.2012 for considering the motion of no confidence. The scheduled was declared vide Registrar's communication dated 2.3.2012 which was challenged by way of writ petition being Special Civil Application No.2944 of 2012. It also appears that the petitioner No.2 had also filed revision application for relief of restrain order against the respondent No.12 so as to restrain him from participating in the meeting which was to be held on 6.3.2012. The Dy. Secretary vide his order dated 5.3.2012 granted stay against the said meeting hence, the meeting was not held. Consequently, the above mentioned petition was also disposed of on the ground that it would not survive because the meeting was not held. The Dy. Secretary passed order dated 27.3.2012 and rejected the above mentioned revision application. It can be seen from the relief prayed for in present petition, that the said order dated 27.3.2012 is brought under challenge. After the said order dated 27.3.2012, the director passed order on 28.3.2012 asking the committee to call special meeting to consider the motion of no confidence.
4. On the next day, i.e. on 29.3.2012, present petition came to be filed and on 30.3.2012, after hearing the learned counsel for the petitioners, below mentioned order was passed :-
"1. Notice returnable on 09/04/2012.
2. In the meanwhile the proposed meeting scheduled to be held on 02/04/2012 may take place, however, on the condition that if the voting takes place then such voting process shall be conducted by way of secret ballot and in presence of Deputy Director or his representative and the ballot box shall not be opened and the votes shall not be counted until further orders of the Court.
3. The vote cast by nominated member shall be kept separate in sealed cover.
4. The total votes cast during the meeting i.e. the ballot box shall be kept in custody of the Director and shall be placed before this Court on the returnable date.
5. The process of the scheduled meeting, the votes which may be cast during the meeting i.e. entire process shall be without prejudice to the contentions of the contesting parties including the contention about the manner in which requisition was made subject to the order that may be passed by the Court after hearing the parties. All contentions including the contention that the requisition is not made in accordance with rules, are kept open. The contentions of both sides are open. Direct service today is permitted."
5. In view of the said order, the meeting could be convened and the motion was put up for consideration which was followed by voting. The process was undertaken as per the directions in the said order dated 30.3.2012. Subsequently, the ballot box were brought before the Court in light of the said order dated 30.3.2012. On 12.4.2012, the ballot box were opened in the Court and the result had been noted. On 12.4.2012, the Court passed below mentioned order:-
"1.
Today, subsequent to the order and direction passed on 30.3.2012, the ballet box is made available in Court. The Election Officer has also remained present. Under direction of the Court and in presence of learned advocate for the petitioner, learned advocate for the respondent, learned AGP the ballet box has been opened and the result has been noted down on separate paper.
2. However, as mentioned in the order dated 30.3.2012 the result is made subject to the order that may be passed in present petition. In that view of the matter result will not be considered as result finally declared by the Election Officer until any other order is passed in present petition and for the present it will not be implemented until other order is passed after hearing parties.
3. So as to enable the parties to file affidavit if they so desire, hearing of the petition is adjourned to 18.4.2012.
4. At this stage learned advocate for the petitioner has placed on record Draft Amendment so as to bring on record subsequent events.
5. The Draft Amendment is granted. The amendment to be carried out forthwith. It will be open for the respondent to file necessary reply opposing the details mentioned in the draft amendment."
6. At this stage, it may be mentioned that when the ballot box were opened and votes were counted, it emerged that 10 votes were cast in favour of requisition i.e. in favour of motion of no confidence / against the petitioner No.1 and 6 votes were cast against the motion i.e. in favour of the petitioner and one vote was invalid. However, the said outcome is governed by the above referred order dated 12.4.2012.
Thereafter, the petition was heard on different dates (e.g. 18.4.2012, 23.4.2012, 25.4.2012, 26.4.2012, 3.5.2012, etc.).
7. Mr. Joshi, learned Senior Counsel, has appeared with Mr. Vyas, learned advocate for the petitioners and Mr. Vaghela, learned advocate has appeared for respondent No.12 and Mr.Raval, learned AGP, has appeared for the respondent No.1 and 3.
7.1 Mr. Joshi, learned Senior Counsel, has inter alia contended that the requisition and the subsequent process of voting are incompetent and illegal and that therefore, the motion for no confidence should be declared defeated and it also should be declared that the petitioner No.1 continues as Chairman of the Committee. He also submitted that the requisition could not have been moved by simple majority. He also contended that the Gujarat Agriculture Produce Market's Act, 1963 and the Rules framed thereunder do not contemplate removal of Chairman or Vice-Chairman by motion of no confidence since there is no provision under the Act or the Rules for considering the motion of no confidence. It is also claimed that in absence of such provision the director could not have issued directions for convening the meeting for considering the motion of no confidence. It is also claimed that respondent No.7, 8 and 12 were, at the relevant time, even otherwise, not competent to sign the requisition and that therefore, the requisition cannot be considered as requisition by even simple majority. Mr. Joshi also submitted that the order dated 27.3.2012 is also incorrect, arbitrary and against the evidence on record and it has been passed with undue haste.
8. Per contra, Mr. Vaghela, learned advocate for respondent No.12, submitted that in view of the decision by the Hon'ble Full Bench of this Court, motion of no confidence by simple majority is legal and even in absence of express provision, Chairman or Vice-Chairman can be removed by motion of no confidence as right to remove is inherent in right to elect. He also submitted that the order dated 27.3.2012 does not suffer from any infirmity. Mr. Vaghela submitted that the contention that the respondent No.12 was not competent to sign the requisition is misconceived inasmuch as his nomination would last until the tenure of the market committee i.e. it would be coterminous with the tenure of market committee and not with the tenure of the body of Panchayat. With reference to the respondent No.7 and 8, learned counsel submitted that the respondent No.7 and 8 have been granted licence and before expiry of their licence on 31.3.2012, application for grant/renewal of licence were already submitted and that therefore, the said two respondents also cannot be said to be incompetent. He submitted that the requisition and motion of no confidence are assailed only on the premise that the said three persons were not competent to move the requisition and/or to participate in the meeting, however, in view of the factual and legal position, the said contention is unsustainable. He submitted that the total number of votes against the petitioner are 10 and even if the 3 votes by respondent No.7, 8 and 12 were not taken into account, then also, the majority vote would still be against the petitioner No.1 since he could secure only 6 votes in his favour and that therefore, even otherwise, the majority is against the petitioner No.1.
9. The learned counsel appearing for the contesting parties have, inter alia, relied on below mentioned decisions:-
1. Pratap Chandra Mehta v.
State Bar Council of Madhya Pradesh & Ors. [(2011) 9 SCC 573.
2. Nandlal Bavanjibhai Posiya v. Director of Agriculture [2002 (1) GLH 659].
3. Agricultural Produce Market Committee v. Patel Jayantilla Purshottamdas [2001 (0) GLHEL-HC 200179].
4. Afjal Imam v. State of Bihar & Ors. [2011 AIR SCW 2722].
5. Om Prakash Gupta s/o Late Sita Ram Sah v. State of Bihar Through The Principal Secretary Urban Development And Housing Department, Govt. of Bihar, Patna [2010(0) AIJ-PT 1729166].
6. Jayendrasinh Bhupatsinh Diama v. State of Gujarat throughAdditional Secretary (Inquiry) & Ors. In Special Civil Application No.10128 of 2011 dated 17.11.2011.
7. Rajendrabhai @ Rajubhai Haribhai Vora v. Agriculture Produce Market Committee in Special Civil Application No.2766 of 1997 dated 23.10.1997.
8. Botad Nagar Palika v.
Rajendrabhai @ Rajubhai Haribhai Vora in LPA No.1501 of 1997 in Special Civil Application No.2766 of 1997 dated 21.1.1998.
10. I have considered the rival submissions by the learned counsel for the contesting parties and have perused the record.
10.1 The petitioners and the respondents, both have referred to and relied on the decision in case of Nandlal Bhavanbhai Posiya (supra).
10.2 In the said decision, the Hon'ble Full Bench has observed and held that right to remove is inherent in right to elect and that therefore, even in absence of any express provision in the Act and the Rules, a Chairman or a Vice-Chairman can be removed on motion of no confidence and that for such purpose, simple majority would be sufficient. However, Mr. Joshi, learned senior counsel, while referring to the said decision by the Full Bench, relied on recent decision by the Apex Court in case of Pratap Chandra Mehta (supra) and submitted that in the decision in case of Nandlal Bhavanjibhai Posiya (supra), the Full Bench has taken into consideration provision under General Clauses Act and also referred to the decision by Delhi High Court in the case of Bar Council of Delhi v. Bar Council of India [AIR 1975 Delhi 200], however, after considering the provision under General Clauses Act and the decision by the Delhi High Court, the Apex Court has observed thus:-
"75.
Then it is contended that removal from an office is punitive. It being punitive, there has to be a just cause and adherence to the principles of natural justice by granting hearing before the removal from office is given effect to. To clarify, it is submitted that removal from an elected office, even in face of a valid rule, would have to meet these twin requirements of just cause and hearing, before a person can be removed from office. On the other hand, the learned counsel appearing for the respondents, while relying upon the judgment of the Delhi High Court in the case of Bar Council of Delhi v. Bar Council of India [AIR 1975 Del 200], contended that by application of the General Clauses Act, 1897 even in absence of any specific provision, the right of persons to elect a Chairman/Vice-Chairman would include the right to undo the same by moving a `no confidence motion'.
76. It needs to be noticed at the very threshold of consideration of this submission that `no confidence motion' cannot be equated in law to removal relatable to a disciplinary action or as a censure. It is stricto senso not removal from office, but a removal resulting from loss of confidence. It is relatable to no confidence and is not removal relatable to the conduct or improper behaviour of the elected person. Even the concept of `term' under the Rules, is referable to and is controlled by a super-imposed limitation of no confidence. This tenure cannot be compared to a statutory tenure as is commonly understood in the service jurisprudence.
77. The distinction between removal by way of `no confidence motion' and removal as a result of disciplinary action or censure is quite well accepted in law. They are incapable of being inter-changed in their application and must essentially operate in separate fields. The Court has always prioritized harmonious functioning of the State Bar Council. In the case of Afjal Imam v. State of Bihar and others, the recall of a Mayor and the re-election of a different Mayor in his place has been held to implicitly shorten the term of the appointees of the previous Mayor, if such is in the interest of smooth functioning of the body.
78 Noticing this distinction, a Bench of this Court in the case of Babubhai Muljibhai Patel v. Nandlal Khodidas Barot, while dealing with the question whether grounds for removal must necessarily be specified when passing a motion of no confidence, noticed the difference between `no confidence motion' and a censure motion and described the same as follows: (SCC pp.720-21, para 19) "19.....It does not, however, follow therefrom that the ground must also be specified when a motion of no confidence is actually passed against a President. It is pertinent in this context to observe that there is a difference between a motion of no confidence and a censure motion. While it is necessary in the case of a censure motion to set out the ground or charge on which it is based, a motion of no confidence need not set out a ground or charge. A vote of censure presupposes that the persons censured have been guilty of some impropriety or lapse by act or omission and it is because of that lapse or impropriety that they are being censured. It may, therefore, become necessary to specify the impropriety or lapse while moving a vote of censure. No such consideration arises when a motion of no confidence is moved. Although a ground may be mentioned when passing a motion of no confidence, the existence of a ground is not a prerequisite of a motion of no confidence. There is no legal bar to the passing of a motion of no confidence against an authority in the absence of any charge of impropriety or lapse on the part of that 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. We may in the above context refer to page 591 of Practise and Procedure of Parliament, 2nd Edn. by Kaul and Shakdher wherein it is observed as under:
'A no-confidence motion in the Council of Ministers is distinct from a censure motion. Whereas, a censure motion must set out the grounds or charge on which it is based and is moved for the specific purpose of censuring the Government for certain policies and actions, a motion of no confidence need not set out any grounds on which it is based. Even when grounds are mentioned in the notice and read out in the House, they do not form part of the no- confidence motion.'"
10.3 Having regard to the aforesaid submissions and the factual backdrop and considering the fact that the petition raises issues about competence of respondent Nos.7, 8 and 12 to sign the recognition and participating the meeting and the petition also raises issue against the recognition, the petition deserves consideration. Hence, Rule.
11. So far as the request for interim relief is concerned, it appears that the submission by Mr. Vaghela, learned counsel for the respondents No.4 to 12 has some substance in view of the fact that 10 votes have been cast in favour of the motion of no confidence i.e. against the petitioner No.1 which is significant and declares the wish of the majority of the committee. In democratic set up, the majority's wish is relevant and important. Even if, the 3 votes against which the petitioner has raised grievance are not taken into account, then also, the majority appears to be against the petitioner. Therefore, considering all relevant aspects arising in present petition, below mentioned order is passed by way of interim arrangement / direction:-
11.1 The election officer is permitted to declare the result of the election as per the outcome which emerged upon opening of the ballot box in Court, on 12.4.2012 (which was noted down on separate paper under Court's direction). Until the final order in the petition, the said result would operate as the result of election declared by the election officer under the provisions of the Act and Rules.
11.2 The interim relief as prayed for in para 46(C) and / or 46(CC) cannot be granted at this stage in view of the number of votes cast in favour of the motion of no confidence i.e. against the petitioner since the said result reflects and declares the wish of the majority of the committee which is supreme so far as the committee is concerned. In that view of the matter, the director being the competent authority, shall take further and necessary action, as required by the provisions of the Act and the Rules. Considering the circumstances of the case and issues involved therein, it is considered appropriate that the process of Rule be made returnable in the week beginning from 6.8.2012.
(K.M.Thaker, J.) kdc Top