Gujarat High Court
State Of Gujarat vs Nirmalaben Waghela, President on 21 September, 2002
Equivalent citations: (2003)4GLR320
Author: J.M. Panchal
Bench: J.M. Panchal
JUDGMENT D.S. Sinha, C.J.
1. Heard Mr. Kamal Trivedi, learned Additional Advocate General representing the State of Gujarat, Mr.J.R. Nanavati, learned counsel appearing for Smt. Nirmalaben Waghela, President, Porbandar Nagarpalika, and Mr.P.M.Thakker, learned Senior Advocate of Shri Babubhai Bokharia, Hon'ble Minister of Irrigation, State of Gujarat, at great length and in detail.
2. These two Letters Patent Appeals are directed against the order and judgment dated 3rd July 2002 of a learned Single Judge, rendered in Special Civil Application No. 6091 of 2002 between Smt. Nirmalaben Waghela and State of Gujarat and another.
3. The acts and events constituting the facts of the case, as they emerge from record, are these:
3.1 Exercising powers conferred upon it under Section 263 of the Gujarat Municipalities Act, 1963, hereinafter called "the Act", the State of Gujarat issued to Porbandar Municipality notice dated 6th June 2002 calling upon it to show cause within fifteen days of receipt of the notice as to why it should not be declared incapable of performing duties, and why should it not be dissolved in accordance with Section 263 of the Act for the reasons and facts stated in the schedule annexed thereto.
3.2 Feeling aggrieved by the notice, Smt. Nirmalaben Waghela, President of Nagarpalika, not the Porbandar Nagarpalika, approached this Court invoking its jurisdiction under Article 226 of the Constitution of India through Special Civil Application No.6091 of 2002 beseeching the grant of, inter alia, the following main reliefs:
"B. Your Lordships may be pleased to issue a writ of mandamus or a writ, order or direction in the nature of mandamus or any other writ, order or direction of a nature quashing and setting aside the Show Cause Notice dated 6.6.2002 bearing No.452000/M/No.18/M issued by the respondent - Smt.Gita Mehta, Deputy Secretary, Urban Development & Urban Housing Development Department, Government of Gujarat, Sachivalaya, Gandhinagar.
C. Your Lordships may be pleased to issue an injunction restraining the respondent herein from further proceeding with the impugned show cause notice dated 6.6.2002 issued by the respondent herein and from initiating the proceedings under Section 263 of the Act.
D. Pending admission, final hearing and disposal of this petition, your Lordships may be pleased to restrain the respondent herein from further proceeding with the impugned show cause notice dated 6.6.2002 issued by the respondent herein and from initiating the proceedings under Section 263 of the Act."
3.3 Special Civil Application came up for consideration before the learned Single Judge on 3rd July 2002, and was heard ex parte. The learned Single Judge felt that Smt.Nirmalaben Waghela, the petitioner, had approached the Court prematurely inasmuch as the matter was only at the stage of showing cause in pursuance of the impugned notice under Section 263(1) of the Act. He, therefore, declined to intervene and interfere with the show cause notice, and did not entertain the petition. However, while declining to entertain the petition, by the impugned order and judgment, the learned Single Judge gave certain directions, and also granted interim relief in favour of the petitioner.
3.4 In the context of the controversy, it is apposite to reproduce the impugned order of the learned Single Judge dated 3rd July 2002, and it is so reproduced below:-
" Date of Order: 03/07/2002 ORDER
1. The present petition is preferred by the petitioner against the Show Cause Notice dtd. 6.6.2002, issued by the State Government under Sec. 263(1) for the dissolution of the Porbandar Municipality.
2. Heard Mr.Nanavaty, Sr. Counsel for the petitioner with Mr.A.R.Thakkar, for the petitioner.
3. Mr.Nanavati for the petitioner submitted that, the State Government has no authority to give direction to the President of the Municipality, to convene the General Board Meeting and he further contended that, the ground mentioned in the Show Cause Notice cannot be said to be valid ground in the eyes of law for the purpose of attracting the powers under Sec. 263 of the Act.
4. Mr.Nanavaty also submitted that, out of the political mala fide, with a view to see that, the elected board which is having majority, of opposite political party to the State level, is removed, the action is taken.
5. Mr.Nanavati also submitted that, the details of the allegations are not mentioned and therefore, he submitted that, the Show Cause Notice should be quashed and set aside since, it is without any authority.
6. Considering the over all facts and circumstances of the case, I am of the view that, it is not necessary for this Court to examine the question raised by the petitioner at this stage, more particularly, because, the proceedings are at Show Cause Notice stage and the State has yet to take the final decision in the matter.
7. It may be noted that, Mr.Nanavati during the course of hearing, has agreed that, the General Board of the Municipality shall submit the reply before the State Government on or before 31st July 2002 and thereafter, the officer concerned, shall give hearing to the representative of the Municipality within period of 15 days thereafter. After the hearing is over, the State Government shall pass appropriate order within period of 15 days thereafter.
8. It is also agreed by Mr.Nanavati, that, no time shall be sought for by either municipality or petitioner for submitting reply or for hearing before the authority.
9. In view of the aforesaid statement made by Mr.Nanavti, Municipality is directed to act as per the said statement and since there are serious allegations of political malafide, I am of the view that, the ends of justice would meet if, the order is passed superceding the Municipality, the same will not be implemented for a period of 10 days from the date of its communication to the Municipality.
10. Subject to the aforesaid observation and direction, the petition is not entertained at this stage. D.S. permitted qua no.1 today."
4. The appellants feel aggrieved by the interim relief granted by the learned Single Judge, contained in paragraph 9 of the impugned order and judgment quoted above. Hence, these appeals.
5. Contention of the learned counsels appearing for the appellants, in the forefront, is that having declined to entertain the writ petition and interfere with the show cause notice dated 6th June 2002, the learned Single Judge could not grant the interim relief as contained in paragraph 9 of the impugned order and judgment. Further submission of the learned counsels is that the interim relief is founded on ex parte allegations of political malafide against the Hon'ble Minister of Irrigation of the State of Gujarat, which is impermissible in law. They also submit that the interim relief granted by the learned Single Judge is beyond the scope of the writ petition and reliefs claimed therein.
6. Countering the submissions of the learned counsels of the appellants, Mr.J.R. Nanavati, the learned counsel representing Smt. Nirmalaben Waghela, President, Porbandar Nagarpalika, submits that the interim order, granted by the learned Single Judge, was passed in furtherance and to the advancement of the cause of justice, and for protecting the interest of the petitioner, Smt. Nirmalaben Waghela, President of Porbandar Nagarpalika. According to him, the interim order calls for no interference in this intra-court appeal.
7. Rival contentions advanced by the learned counsels of the parties make it imperative to recall and restate the principles guiding the grant of interim relief in a petition under Article 226 of the Constitution.
8. The guidelines in the matter of grant of interim relief are well settled by a plethora of decisions rendered by the Hon'ble Supreme Court. However, it will be relevant and sufficient, in the context, to notice two loadstar decisions of the Hon'ble Supreme Court of India, both rendered by the Constitution Bench of five Hon'ble Judges. These decisions were rendered in The State of Orissa vs. Madan Gopal Rungta, reported in A.I.R. 1952 Supreme Court, at page 12, and State of Orissa vs. Ram Chandra Dev, reported in A.I.R 1964 SC, at page 685.
9. In somewhat similar situation, Kania, C.J., speaking for the Constitution Bench in the case of the State of Orissa vs. Madan Gopal (supra), while considering the question, whether directions in the nature of interim relief only could be granted under Article 226 when the Court expressly refrained from determining the rights of the parties on which writ of mandamus or directions of a like nature could be issued observed thus:
"6. ... The question which we have to determine is whether directions in the nature of interim relief only could be granted under Art.226, when the Court expressly stated that it refrained from determining the rights of the parties on which a writ of mandamus or directions of a like nature could be issued. In our opinion, Art.226 cannot be used for the purpose of giving interim relief as the only and final relief on the application as the High Court has purported to do. The directions have been given here only to circumvent the provisions of S. 80, Civil P.C., and in our opinion that is not within the scope of Art.226. An interim relief can be granted only in aid of and as ancillary to the main relief which may be available to the party on final determination of his rights in a suit or proceeding. If the Court was of opinion that there was no other convenient or adequate remedy open to the petitioners, it might have proceeded to investigate the case on its merits and come to a decision as to whether the petitioners succeeded in establishing that there was an infringement of any of their legal rights which entitled them to a writ of mandamus or any other directions of a like nature; and pending such determination it might have made a suitable interim order for maintaining the status quo ante. But when the Court declined to decide on the rights of the parties and expressly held that they should be investigated more properly in a civil suit, it could not, for the purpose of facilitating the institution of such suit, issue directions in the nature of temporary injunctions, under Art.226 of the Constitution. In our opinion, the language of Art.226 does not permit such an action. On that short ground, the judgment of the Orissa High Court under appeal cannot be upheld. "
10. The above dictum of the Hon'ble Supreme Court was followed by another Constitution Bench of the Hon'ble Supreme Court in the case of State of Orissa vs. Ram Chandra (supra). Following the dictum laid down in the case of Madan Gopal (supra), the Hon'ble Mr.Justice P.B. Gajendragadkar spoke for the Bench as under:
"... it was outside the jurisdiction of the High Court under Art.226 to issue a writ solely for the purpose of granting an interim relief to the party who moved the High Court under Art. 226. It is in that connection that this Court observed that an interim relief can be granted only in aid of and as auxiliary to the main relief which may be available to the party on final determination of his rights in a suit or proceedings under Art. 226."
11. Tested on the touchstone handed down by the Hon'ble Supreme Court in the two of its decisions noticed earlier, the impugned interim relief granted by the learned Single Judge cannot be sustained. Indeed, the impugned interim relief runs counter to the guidelines laid down by the Apex Court, which still hold the field, and have not been demonstrated to have been overruled. Having declined to entertain the writ petition and refused to interfere with the impugned show cause notice dated 6th June, 2002 the learned Single Judge was not justified in granting the interim relief as contained in paragraph 9 of his order and judgment.
12. Further, it is pertinent to notice that the interim relief was granted against the appellants ex parte without any opportunity to them to defend. Moreover, it is founded on the serious allegations of political malafide against Shri Babubhai Bokharia, the Hon'ble Minister of Irrigation, without notice to him to meet and defend himself. This per se renders the grant of interim relief void.
13. Additionally, interim relief has the effect of stalling and circumventing the automatic statutory consequences of the order of dissolution contemplated to be passed in exercise of powers conferred by Section 263 of the Act.
14. For what has been said above, in the opinion of the Court, the appeals deserve to be allowed, and the impugned interim order, as contained in paragraph 9 of the order and judgment of the learned Single Judge dated 3rd July 2002, is liable to be set aside.
15. Accordingly, the appeals are allowed. Interim order, as contained in paragraph 9 of the order and judgment of the learned Single Judge dated 3rd July 2002, is quashed. No order as to costs. The Civil Applications shall stand disposed of finally.