Gujarat High Court
Amitbhai Karshanbhai Gami vs Farukbhai Ibrahimbhai Motlani on 11 June, 2018
Author: A.J. Shastri
Bench: A.J. Shastri
C/SCA/8147/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8147 of 2018
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AMITBHAI KARSHANBHAI GAMI
Versus
FARUKBHAI IBRAHIMBHAI MOTLANI
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Appearance:
MR DHAVAL C. DAVE, SR ADVOCATE for
MR.ADITYA J PANDYA(6991) for the PETITIONER No. 1,2,3,4,5,6,7
MS MANISHA LAV KUMAR GOVERNMENT PLEADER ASSISTED BY
MR UTKARSH SHARMA, AGP for the RESPONDENT No. 8
MR BHARAT T RAO(697) for the RESPONDENT No. 1
NOTICE SERVED BY DS(5) for the RESPONDENT No. 2,3,4,5,6,7
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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 11/06/2018
ORAL ORDER
1. The present petition, under Articles 226 and 227 of the Constitution of India, is filed for the purpose of challenging the legality and validity of an order dated 10.05.2018 passed by the Respondent No.8 - Authority in respect of proceedings of Application No.14 of 2016.
2. The premise on which the present petition is brought before this Court is that in October, 2015, the State Election Commissioner had declared election for 52 seats of Morbi Nagar Palika and pursuant to the said election process, the resolution was declared on 02.12.2015 and out of 52 seats, 32 seats were captured by Indian National Congress whereas 20 seats have been captured by Bhartiya Janta Party.
Page 1 of 21 C/SCA/8147/2018 ORDER 2.1 It is the case the petitioner that on 14.12.2015 one Ms.Asmitaben W/o. Navalbhai Bhoringa was elected as President whereas one Mr.Farukbhai Ibrahimbhai Motlani was declared as elected VicePresident of Morbi Nagar Palika, who is Respondent No.1 in the present proceedings. Both these President as well as Vice President were belonging to Indian National Congress Party.
2.2 It is the further case of the petitioner that on 02.07.2016, 'No Confidence Motion' was moved by the members of Morbi Nagar Palika against the President as well as Vice President of Nagar Palika, as stated above, which ultimately culminated into tendering of resignation. As a result of that, for the purpose of electing new President and Vice President of Nagar Palika, an agenda was circulated on 07.07.2016 with respect to this meeting which is convened. The voting took place in a meeting on 14.07.2016 and by way of majority one Smt.Naynaben Maheshbhai Rajyaguru was elected as President and Shri Arjanbhai Jerambhai Kanzariya was elected as Vice President and both these candidates were belonging to Bhartiya Janta Party. The case of the petitioner travels further on the premise that a petition was moved before the learned Designated Authority being Application No.14 of 2016 by Respondent No.1 herein under the provisions of the Disqualification of Members of Local Authorities for Defection Act, 1986 Page 2 of 21 C/SCA/8147/2018 ORDER ('the Act, 1986', for short) against these petitioners as well as Respondent Nos.2 to 6 allegedly on the ground that they have incurred disqualification on account of not observing the whip of the parties in casting of votes for electing President and Vice President. This application, which was submitted by Respondent No.1, came to be adjudicated by learned Designated Authority who is respondent No.8 herein and after considering relevant provisions, an order is passed on 28.12.2016 which is made the subject matter of present writ petition. 2.3 This petition was filed on 16.05.2018 and was circulated earlier on 25.05.2018 wherein since there was no date of election fixed, learned advocate requested the Court to grant an adjournment and accordingly matter was posted for hearing after vacation on 11.06.2018. However, today when the matter is taken up for hearing, learned advocate appearing for the petitioner has submitted that election date is fixed now on 14.06.2018 and hence the matter may be dealt with at the earliest and accordingly with the concurrence of learned advocates appearing for the respective parties, request for taking up the matter is considered by the Court and with this background the petition was heard.
3. Mr.Dhaval C. Dave, learned senior advocate appearing for MR.Aditya Pandya, learned advocate with Mr.Kamal J. Pandya, learned Page 3 of 21 C/SCA/8147/2018 ORDER advocate appearing for the petitioners has vehemently contended that order passed by the Respondent No.8 authority is passed practically without assigning any cogent reason. Mr.Dave, learned senior advocate has contended that there is a gross irregularity on the part of the respondent - Designating Authority while dealing with the proceedings and such irregular exercise of jurisdiction deserves to be corrected. While submitting this, learned senior advocate has drawn the attention of this Court that during the course of proceedings, the Gujarat Pradesh Congress Samiti has specifically dealt with the mistake committed by the petitioners and appears to have condoned the act of present petitioners along with others by specifically naming in a communication dated 02.01.2018 which is part of the record. Mr.Dave, learned senior advocate has contended further that even the suspension has also been revoked by Gujarat Pradesh Congress Samiti authorizing the Chairman of Election Committee one Mr.Balubhai Patel, who was authorized to issue whip and as such when party itself has condoned the act of petitioners, there was no other germane reason available with the Designated Authority to pass any contrary order. Mr.Dave, learned senior advocate has further contended and drawn the attention of this Court that this communication was on the contrary produced on record by way of specific affidavit during the course of proceedings before the Designated Authority on 02.02.2018 and as such there was no other Page 4 of 21 C/SCA/8147/2018 ORDER valid reason available with the respondent authority to ignore such contention given by the main political party to which present petitioners belong.
3.1 Mr.Dave, learned senior advocate has further contended that the learned Designated Authority, surprisingly, during the course of hearing of the proceedings, took cognizance of a letter dated 03.11.2016 issued by the President Brijesh Merja of Morbi District Congress Committee in which out of 12, so far as 05 members are concerned, the act of them was condoned and that has been considered whereas petitioners' have not been dealt with at all. On the contrary, this President of District Congress Committee is not a person who issued whip nor authorized by District Congress Committee for even issuance of whip and his letter has been considered by Designated Authority and exonerated other five members who are Respondent Nos.2 to 6 herein and this is nothing but a gross error in exercising of jurisdiction by the authority. Mr.Dave, learned senior advocate, after inviting attention of this Court to the letter, has also contended that the Designated Authority has taken cognizance of this letter with respect to Respondent Nos.2 to 6 herein and not considered the case on equal footing to that of petitioners especially when the main political party itself has no objection against the act of petitioners. So far as this issue is concerned, according to Mr.Dave, learned senior advocate, no satisfactory reasons are assigned Page 5 of 21 C/SCA/8147/2018 ORDER by learned authority and as such practically the order in question is a nonspeaking order which has no legs to stand in the eye of law. Mr.Dave, learned senior advocate has further contended that even the main proceedings initiated by Respondent No.1 were initiated without having any authorization from the political party which can be clearly seen from the documents which are placed on record on pages:75 and 76 of petition compilation and therefore, at the instance of Respondent No.1, the proceedings were not tenable in eye of law and as such when the statutory provision is not permitting or authorizing any person like Respondent No.1 to present the proceedings, such proceedings were not to be entertained by the authority and since the main proceedings are not maintainable, no order could have been passed.
3.2 Mr.Dave, learned senior advocate has further contended that ultimately the disqualification issue is to be viewed from the intent of main political party and here is the case in which main political party itself including person who is authorized to issue whip have shown the inclination not to precipitate further against these petitioners with respect to their qualification, the authority ought not to have passed the impugned order and when that be so according to Mr.Dave, the concept of 'aggrieved party' would come into play which aspect has not been considered by the authority and hence in any case, the proceedings at the instance of Respondent No.1 could not have been entertained at all. Page 6 of 21 C/SCA/8147/2018 ORDER Hence, the order in question is required to be quashed in the interest of justice. Mr.Dave, learned senior advocate has further contended that act and the Rules are silent with respect to locus of Respondent No.1 and, therefore, when statute is silent, the Court has no jurisdiction to input anything which is kept silent by statutory provisions and, therefore, in any case, the proceedings initiated by Respondent No.1 were based upon no authority and hence not tenable at all which aspect has not been dealt with by the authority. Ultimately, learned senior advocate has contended that in the background of this fact when the main parent political party itself is not inclined to disqualify petitioners, the authority could not have ignored this intent of party. Hence, the order in question is erroneous, perverse to the record and accordingly the same deserves to be quashed and set aside. No other submissions have been made.
4. Mr.B.T.Rao, learned advocate appearing for Respondent No.1 has candidly submitted before the Court that he has not been authorized to oppose the petition nor to defend the stand. Accordingly has chosen to remain dormant in the present proceedings.
5. So far as respondent authorities are concerned, Ms.Manisha Lav Kumar, learned Government Pleader appearing for Respondent Nos.7 and 8 has vehemently contended that there appears to be no irregularity nor any error of law nor any perversity is reflecting which would Page 7 of 21 C/SCA/8147/2018 ORDER warrant the petitioner to invoke extra ordinary jurisdiction of this Court. Learned Government Pleader has further contended that if this order is to be interfered with, the very object of the act would get frustrated. On the contrary, for bringing these provisions of disqualification on the statute book, there was a clear intention of legislature to uphold and regulate the political discipline amongst members of political party and therefore since this being a statute with specific object, each provision to be given strict interpretation and with this background learned Government Pleader has submitted that since the political party is not an authority akin to Article 12 of the Constitution of India, question of fair play, arbitrariness cannot be questioned or agitated by the petitioner. It is open for the authorities to examine the case independently and the learned Government Pleader has further contended that the present petition is basically filed with respect to present petitioners' interest only and there is no relief prayed against the respondent Nos.2 to 6 herein as can be seen from the para:8 of the petition.
5.1 With this background, coming back to the reasons which are assigned by the authority, learned Government Pleader has contended that there is a proper application of mind on the part of authority while exercising due discretion vested in specific statute of 1986 and the statutory provisions coupled with the procedure has been examined and considered at length by the authority and as such, such sound exercise of Page 8 of 21 C/SCA/8147/2018 ORDER jurisdiction may not be allowed to be made the subject matter of extra ordinary jurisdiction of this Court and that too by the petitioners. 5.2 Learned Government Pleader has specifically contended that rigor of specific statutory provisions contained under Section 3 of the Act has been examined, applied and from that perspective ultimate conclusion is derived. In fact, Section 3(b) of the Act clearly mandates a member of political party to observe and follow the whip and in case the same is not observed then from the date of voting within a period of 15 days, the condonation is to be given by the political party to which a member is attached and further has contended that for such act of not observing, there must be a prior permission also required of such political party and without obtaining such prior permission, the member is not allowed to abstain or vote or act contrary to whip. Learned Government Pleader has contended that here is the case in which there is no question with regard to validity of issuance of whip. It is undisputedly issued by an authorized person and the whip has been read over and the entire process was made understood to the members of political party to which petitioners belonging and, therefore, there is a strict compliance at the time when voting took place about observance of the process of issuing whip and undisputedly here is the case in which the petitioners have disobeyed the whip, and acted contrary to it.
Page 9 of 21 C/SCA/8147/2018 ORDER 5.3 Learned Government Pleader has further contended that the proceedings have been initiated by the Respondent No.1 in the month of July, 2016 and by drawing attention to para:5 of the order has contended that more than dozen time the proceedings were adjourned, more than required opportunities have been given and the last date was 01.02.2018 when the proceedings came to be concluded, according to learned Government Pleader, on instructions of the officer who is present before the Court, has submitted that this socalled contention in the form of communication dated 02.01.2018 was produced after the conclusion of proceedings before the authority as it can be seen clearly from the affidavit which has been sworn and prepared on 02.02.2018 and, therefore, this is nothing but a concoction on the part of petitioners. Without entering into genuineness of such communications, learned Government Pleader has specifically contended that even if the main political party wanted to condone the act of petitioners, then that could have been within specific time as stipulated under Section 3 of the Act. This afterthought measure agitated by the petitioners along with political party cannot make any difference and the authority cannot ignore specific statutory provisions which are applicable herein in the present case and, therefore, such an attempt which has been made after conclusion of hearing of the main proceedings and practically after a period of two years, same has rightly not been encouraged by the Page 10 of 21 C/SCA/8147/2018 ORDER authority and, therefore, that being so the order in question cannot be said to be unjust, arbitrary or contrary to law.
5.4 While substantiating the submission, learned Government Pleader has specifically drawn attention about specific dates which are very relevant in the present proceedings. The meeting and the voting took place on 14.07.2016 and the application under the provisions of Disqualification Act has been submitted on 27.07.2016 and the communications which are sought to be relied upon by the petitioner are of 02.01.2018 and with respect to five members i.e. Respondent Nos.2 to 6, the same is of 03.11.2016 and as such in view of this, looking to the mandate of statutory provisions contained under Section 3(b) of the Act, the order of authority cannot be said to be even perverse or contrary to law. Learned Government Pleader has further contended that it is not the case that application has been presented in an irregular form or dehors the statutory provisions and it is further not the case of petitioners that whip has been questionable whip and as such looking to the relevant provisions contained in the Act and the Rules, no case is made out by the petitioner. For this purpose, learned Government Pleader has further drawn the attention of the relevant rules which are considered by the authority to counter the submission of Mr.Dave, learned senior advocate for the petitioners. A reference is made to Rule 6 of Rule,1987 which specifically permits any counselor or a member to Page 11 of 21 C/SCA/8147/2018 ORDER bring the petition. The entire rule has prescribed specific process as to how such petition is to be brought before the Designated Authority and it is not the case of the petitioner that such petition is in contrast to the process as envisaged under Rule 6 of the Rules. By inviting attention to Rule 8 of the Rules, learned Government Pleader has further contended that these are special proceedings in the statute and how and in what manner the authority has to take decision is also stipulated and, therefore, the conjoint effect of these rules would clearly indicate that order in question passed in close compliance of aforesaid rules and the process and hence, such exercise of jurisdiction is not amenable to challenge. However, be that as it may, learned Government Pleader has submitted that the effect of statutory provisions coupled with the rules have been specifically examined, dealt with, applied and only thereafter the ultimate conclusion is arrived at which cannot be said to be perverse or illegal in any manner. Ultimately, learned Government Pleader has contended that these political parties are not akin to Article 12 of the Constitution of India and, therefore, picking and choosing of member, according to their own policy or intention, cannot be agitated by the petitioners as if there is any unfair treatment is meted out to them. In that case, even if it is meted out, it cannot be form subject matter of present proceedings and petitioner if might have been differently treated they cannot ventilate their grievance in the present proceedings and Page 12 of 21 C/SCA/8147/2018 ORDER hence considering this situation, which is prevailing on record, the order is in close confirmity with the statutory provisions and object of act, hence may not be interfered with.
6. In respect of all these submissions made by learned Government Pleader, as a part of rejoinder, Mr.D.C.Dave, learned senior advocate has retaliated that Respondent No.8 Authority is quashi judicial authority and it is not expected that such authority can be defended by learned Government Pleader like this to protect his own order and as such the contentions which have been raised by learned Government Pleader may not be considered and in any case even if it could be defended then also the same should be within the scope of conclusion which has been arrived at and no other inference and contentions are to be permitted. Again, Mr.B.T.Rao, learned senior advocate has reiterated that he has been instructed not to take part in present proceedings by submitting any argument and hence has offered no comments upon these submissions of either sides. Both sides have no other submissions to be offered and jointly requested that in view of the fact that since election is already scheduled on 14.06.2018, the matter may be put to an end. As a result of this, the Court has considered arguments advanced by both the sides and upon perusal of the order of the authority and upon close scrutiny of statutory provisions and in the context of submissions made by learned advocate of either sides, following circumstances are not Page 13 of 21 C/SCA/8147/2018 ORDER possible to be ignored by this Court.
7. Before examining the order and considering the submissions of either sides, Court would like to consider first of all the very object and scope of Anti Defection Law for which it has been legislated, which reads as under:
" The object and scope of the Anti Defection law incorporated under Tenth Schedule is to curb the evil of political defections motivated by lure of office or other similar considerations which endanger the foundations of democracy. The underlying promise is declaring an individual act as defection as forbidden is that lure of office or money could be presumed to have prevailed. Legislature has this presumption on its own perception and assessment of the extent standards of political properties and morality. The provisions in Tenth Schedule are salutary and are intended to strengthen the fabric of Indian Parliamentary system by curbing unprincipled or unethical political defections. The anti defection law seeks to recognize the practical need to place the properties of political and personal conduct above certain theoretical assumptions which is reality have falled into a morass of personal and political degradation. Court should defer to this legislative wisdom and perception. In the statement of Objects and Reasons appended to the Bill which was adopted as the Constitution (52nd Amendment) Act, 1985 says, ' the evil of political defection has been a matter of national concerned. It it is not combated, it is likely to undermine the very foundation of our democracy and the principles which sustain it."
8. Now, almost on this object present statute is brought. Looking to the above object of the basic act itself, Section 3 of the Act has been specifically stipulating certain contingencies and the relevant abstracts of the said statutory provisions, which are emphasized by both the sides read as under: Page 14 of 21 C/SCA/8147/2018 ORDER "3 (1). Subject to the provisions of sections 4 and 5, a councillor or a member belonging to any political party shall be disqualified for being an councillor or a member,
(a) if he has voluntarily given up his membership of such political party; or
(b) if he votes or abstains from voting in any meeting of a municipal corporation, panchayat or as the case may be, municipality contrary to any direction issued by the political party to which he blongs or by any person or authority authorised by it in this behalf without obtaining in either case the prior permission of such political party, person or authority and such voting or a abstenation has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention. Explanation : (1) For the purpose of this section,
(a) a person elected as a councillor or, as the case may be, a member shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such councillor or member;
(b) an appointed councillor or member shall,
(i) where he is a member of any political party on the date of his appointment as such councillor or, as the case may be, member be deemed to belong to such political party;"
8.1 Yet another provision which is contained under Section 6 is also relevant to the issues, hence thought it fit to reproduced herein after.
"6. If any question arises as to whether, (1) a councillor of a municipal corporation; or (2) a member of a panchayat; or (3) a councillor of a municipality has become subject to disqualification under this Act, the question shall be referred to the Chief Secretary to the State Government or to such officer not below the rank of a Secretary of any Department of the State Government as may be designated by the State Government in this behalf and his decision shall be final."
8.2 From conjoint reading of aforesaid provisions, the Court is of the opinion that if any member attached to the political party votes or Page 15 of 21 C/SCA/8147/2018 ORDER abstains from voting contrary to any direction which is popularly known as whip then either he / she has to obtain prior permission of such political party to which he is attached or such political party must have condoned his / her act within a period of 15 days from the date of such voting or abstention and here is the case in which undisputedly the whip was effectively readover issued by authorized person and the same has been undisputedly violated. It is a different thing that after almost a period of two years, the said political party has made an intention to condone the said act of the petitioner including other five who are Respondent Nos.2 to 6 but in any case, it is clearly visible from the present proceedings that present petitioners have defied the whip without prior permission and their act has not been condoned within a period of 15 days from the such voting and, therefore, authority has rightly given effect to the statutory provisions contained under Section 3 of the Act.
8.3 Yet another circumstance which cannot be given a gobye is a communication dated 02.01.2018 which is reflecting on page:75 and 76 of the petition compilation. These communications whereby attempt is made to indicate that proceedings were not permitted to be launched by Respondent No.1 but such stand is coming out in the present proceedings at the fag end of the entire conclusion of the main proceedings. It is evident from the order itself that more than seventeen Page 16 of 21 C/SCA/8147/2018 ORDER dates have been given during the course of proceedings and the last concluding date which is reflecting on page:17 on internal page:2 of the order is dated 01.02.2018. Now if this date if to be compared with the affidavit which has been submitted by one Mr.Bhavin Girish Gelani - Respondent No.10 of that main proceedings reflecting a date and affirmation of 02.02.2018 and further the communications which were sought to be relied upon were of January, 2018 when in January itself the date was also given that of 18.01.2018 and as such this has been attempted to be produced after conclusion of proceedings which attempt cannot be overlooked and rightly not been considered by the authority itself.
8.4 Yet another circumstance which is stinkingly reflecting is the ultimate conclusion which is reflecting on 1st and 2nd paras of internal page :15 of the order which has clearly analysed provisions and considered the material in context of examining the issue of disqualification and as such detailed exercise of discretion cannot be said to be perverse in any manner.
8.5 Of course, this Court is not in a position to digest the authority's conclusion with respect to Respondent Nos.2 to 6 but since there is no prayer with respect to challenging their exoneration, the Court would not like to travel beyond the scope of relief which has been sought for, Page 17 of 21 C/SCA/8147/2018 ORDER however, in any case, it is clearly reflecting in case of petitioners that there is a valid whip issued by competent authority. There is a clear violation undisputedly of not observing the whip and there is no condonation reflecting within a period of 15 days from the date of such voting and also there is undisputedly no prior permission to act contrary to the whip and, therefore, entire element of disqualification which has been envisaged in the act is established clearly. Hence, the Court finds no irregularity in an order passed by the respondent authority. So far as petitioners are concerned, there appears to be a valid conclusion arrived at by the authority which the Court would not like to disturb in exercise of extra ordinary jurisdiction.
8.6 Since the language of the statute itself is clear there is no scope for imputing any other idea of interpretation. On the contrary provisions of the Act and the Rules are sufficiently examined by Respondent authority while arriving at conclusion and, therefore, when the words of the statues are clear, there is no question of giving any different interpretation which is otherwise not possible in the present proceedings. Hence, order in question does not call for any interference.
9. In the context of aforesaid situation which is clearly visible, the argument canvassed by learned senior advocate for the petitioner sounds no confidence, on the contrary, are not possible to be accepted. That Page 18 of 21 C/SCA/8147/2018 ORDER plea with respect to concept of 'aggrieved party' is also found to be not so impressive looking to the effect of Rule 6 of the Rules in its entirety. Hence, the petition being found to be devoid of merits deserves to be dismissed. While coming to this conclusion, the Court is also mindful of the golden Rule of interpretation which has been propounded by Hon'ble Apex Court in case of Employees' State Insurance Corporation vs. A.K.Abdul Samad reported in (2016) 4 SCC 785 and also in case of Shailesh Dhairyawan vs. Mohan Balkrishna Lulia reported in (2016) 3 SCC 619. Even doctrine of purposive interpretation would clearly indicate that there is no scope of interference in the present order impugned in the petition insofar as case of the petitioners is concerned. 9.1 So far as the main plank of argument canvassed by learned senior counsel for the petitioners that the authority has given a different treatment to the case of Respondent Nos.2 to 6, however, such argument found to be not that impressive in view of the fact that it is not the case of the petitioner that Respondent Nos.2 to 6 have been wrongly given and they should also be treated like the petitioners. In fact, there is no relief sought in the petition against the Respondent Nos.2 to 6 in any form. On the contrary, by taking advantage of such, a parity is sought by the petitioners which in the opinion of the Court is not permissible. There is no concept like negative equality to be given to a person by perpetuating illegality. In fact, there is no challenge to the case of Page 19 of 21 C/SCA/8147/2018 ORDER Respondent Nos.2 to 6 herein by either side and as such leaving the case of them as it is, the Court found that at least the petitioners have not made out any case to justify their disqualification as erroneous. In fact, the parameters which are prescribed under the special statute, which are to be construed strictly, the Court is of the opinion that in respect of the petitioners the authority has not committed any error. The concept of negative equality is wellpropounded by Hon'ble Apex Court in the recent case of Kulwinder Pal Singh vs. State of Punjab reported in (2016) 6 SCC 532 and since the same is relevant, the abstracts from para:16 of the said judgment are reproduced herein after.
"16. The learned counsel for the appellants contended that when the other candidates were appointed in the post against deserved category, the same benefit should also be extended to the appellants. Article 14 of the Constitution of India is not to perpetuate illegality and it does not envisage negative equalities. In State of U.P. v. Rajkumar Sharma [(2006) 3 SCC 330] it was held as under:
"15. Even if in some cases appointments have been made by mistake or wrongly, that does not confer any right on another person. Article 14 of the Constitution of India does not envisage negative equality, and if the State committed the mistake it cannot be forced to perpetuate the same mistake. (See Sneh Prabha v. State of U.P. [(1996) 7 SCC 426]; Jaipur Development Authority v. Daulat Mal Jain [(1997) 1 SCC 35]; State of Haryana v. Ram Kumar Mann [(1997) 3 SCC 321]; Faridabad CT Scan Centre v. DG, Health Services [(1997) 7 SCC 752]; Jalandhar Improvement Trust v. Sampuran Singh [(1999) 3 SCC 494]; State of Punjab v. Rajeev Sarwal [(1999) 9 SCC 240], Yogesh Kumar v. Govt. (NCT of Delhi) [(2003) 3 SCC 548]; Union of India v. International Trading Co. [(2003) 5 SCC 437] and Kastha Niwarak Grahnirman Sahakari Sanstha Maryadit v. Indore Development Authority [(2006) 2 SCC 604]."Page 20 of 21 C/SCA/8147/2018 ORDER
9.2 Be that as it may, the Court is also mindful of the well settled position propounded by Hon'ble Apex Court on the issue of exercise of extra ordinary jurisdiction which in substance has indicated that in the absence of any material irregularity or stinking illegality or perversity, the view expressed by the authority may not be substituted and here is the case in which the Court feels that there appears to be no perversity of any nature in respect of petitioners' case. Accordingly, no case is made out by the petitioners.
9.3 The Hon'ble Apex Court in a case of Sameer Suresh Gupta through Power of Attorney Holder vs. Rahul Kumar Agarwal reported in (2013) 9 SCC 374, more particularly in paras:6 and 7, by elaborating the distinction between Articles 226 and 227 of the Constitution of India, has enunciated the principle which this Court would like to observe and follow. Hence, the petition being found to be devoid of merits, the same deserves to be dismissed. The relevant observations contained in paras:6 and 7 of the said judgment are not reproduced herein after only with a view to avoid unnecessary burden of this judgment, but the same have been kept in mind and accordingly the petition is dismissed hereby. Notice discharged with no order as to costs. Direct service is permitted.
(A.J. SHASTRI, J) MISHRA AMIT V. Page 21 of 21