Gujarat High Court
Vipulbhai M Chaudhary - Chairman vs State Of Gujarat - Through Registrar & 6 on 17 January, 2014
Author: Jayant Patel
Bench: Jayant Patel, Z.K.Saiyed
C/SCA/16515/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 16515 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE JAYANT PATEL
and
HONOURABLE MR.JUSTICE Z.K.SAIYED
================================================================
1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
================================================================
VIPULBHAI M CHAUDHARY - CHAIRMAN....Petitioner(s)
Versus
STATE OF GUJARAT - THROUGH REGISTRAR & 6....Respondent(s)
================================================================
Appearance:
MR BB NAIK, LD. SR. ADOVATE ASSISTED BY MR PS CHAMPANERI,
ADVOCATE for the Petitioner(s) No. 1
MR PK JANI, LD. GOVERNMENT PLEADER for the Respondent(s) No. 1
for the Respondent No.1
MR BS PATEL WITH MR CHIRAG B PATEL, ADVOCATE for the
Respondent(s) No. 4
MR SN SHELAT, LD. SR. COUNSEL ASSISTED BY MR KUNAL VYAS,
Page 1 of 52
C/SCA/16515/2013 JUDGMENT
ADVOCATE FOR NANAVATI ASSOCIATES, for the Respondent(s) No. 3
NOTICE SERVED BY DS for the Respondent(s) No. 1 - 2
MR AMIT M PANCHAL, LD. ADVOCATE WITH MS SHIVANI RAJPUROHIT,
ADVOCATE WITH MR GURSHARAN VIRK for the Respondent(s) No. 5
================================================================
CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL
and
HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 17-20/01/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE JAYANT PATEL)
1. As per order dated 6.1.2014 passed by the learned Single Judge of this Court, reference made to the Division Bench is on the following question:-
"Whether the decision of the Full Bench of this Court in the case of Nandlal Bavanjibhai Posiya (supra), and that of the Division Bench of this Court in the case of Motibhai R. Chaudhary (supra), and that of Single Judge in the case of Narmadaben V. Parmar (supra) can be said to have stood impliedly overruled, as perceived by this Court in the case of Babubhai Kalidas Patel (supra)?"
2. We need not enter into the factual controversy leading to the filing of the present petition, Page 2 of 52 C/SCA/16515/2013 JUDGMENT since the main Special Civil Application is yet not finalized by the learned Single Judge and the main Special Civil Application has reached us on account of the above referred Reference made by the learned Single Judge.
3. However, in order to appreciate the question raised, reference to the above referred three decisions of this Court and the subsequent decision of the Apex Court as well as the decision of another learned Single Judge of this Court, whereby he has found that the decision of the Full Bench has been impliedly overruled, would be relevant and the same can broadly be narrated as under:-
(a) In the case of Narmadaben V. Parmar v.
Taluka Development Officer, Kheralu, reported in 1998(1) GLR, 225 (equivalent : 1998(1) GLH, 275), the members of Social Justice Committee of Taluka Panchayat had elected the petitioner therein as Chairman of the said Committee on 18.1.1996. Thereafter, in the month of April, 1997, four members of the said Committee moved a motion of no-confidence. The said motion was forwarded by Page 3 of 52 C/SCA/16515/2013 JUDGMENT the Taluka Development Officer to the petitioner therein and it was conveyed by him that if the petitioner therein did not convene the meeting of the Social Justice Committee within 15 days, the meeting would be convened by Taluka Development Officer or D.D.O.
4. Under these circumstances, the petitioner therein, who was facing the motion of no- confidence had preferred the petition, challenging the said communication contending, inter alia, that the communication was without jurisdiction and beyond the scope of provisions of Gujarat Panchayat Act, 1993 (hereinafter referred to as 'Panchayat Act') and a declaration was prayed that motion of no-confidence against the petitioner therein was without jurisdiction and beyond the scope of Panchayat Act. The learned Single Judge (Coram: M. S. Shah, J.) recorded the relevant reasonings at paragraphs 7 to 10, which, for ready reference, can be extracted and the same reads as under:-
"7. I have heard the learned Counsel for the parties at length. It is true that the provisions of the Act do not specifically Page 4 of 52 C/SCA/16515/2013 JUDGMENT provide for removal of the Chairman of the Committee by passing a vote of no confidence. However, it is required to be noted that the provisions of Section 123(9)(b) provide for the term of the committee making it coextensive with the duration of the panchayat which is five years. However, no term is provided for the office of the Chairman of the Committee. There is,therefore, nothing in the provisions of Section 123 of the Act which gives any fixed term to the Chairman of the Committee although the members of the Committee get term coextensive with the duration of the panchayat. If the legislature intended to confer any such fixed term on the chairman of the Committee the legislature would have clearly provided so.
8. It is also true that there are specific provisions for removal of the Sarpanch/upsarpanch of the gram panchayat, President/Vice President of taluka panchayat under sections 56,70 and 84 respectively but there is no such provision for Chairman of any Committee. But Mr.Jani has rightly pointed out that in all those provisions special provision is made requiring passing of no confidence motion by 2/3rd majority and not by a simple majority. It is a basic tenet of democracy that an elected body has the power to elect its office bearers and if the body is not held to have power to appoint or remove its office bearers, the body will never be able to enforce accountability or responsibility of its office bearers or control the action of its office bearers. For instance, if one looks to the constitution of the Social Justice Committee, it comprises of five members and if, as in the instant case, out of five members four members have no confidence in the chairman and if this situation is allowed to continue till expiry of the term of the Committee (which event will take place in July 2000, in the instant case), there will be constant deadlock and the committee will not be able to function effectively and carry out the duties assigned to it. It Page 5 of 52 C/SCA/16515/2013 JUDGMENT must,therefore, be held that the body which has power to elect its office bearers by a simple majority has also the inherent or implied power to remove them by passing the motion of no confidence by a simple majority, unless there are special provisions prescribing a special procedure or special requirement, such as the requirement for 2/3rd majority to remove the President/Vice President of the Taluka Panchayat/Disitrict Panchayat.
10. Even the provisions of Section 16 of the General Clauses Act can be relied upon for the purpose of buttressing the aforesaid conclusion that the power to appoint includes the power to remove. The submission of Mr.Mehta that the provisions of Sec.16 of the General Clauses Act cannot be invoked in the instant case because herein the petitioner was not appointed but elected, has no substance. Appointment on a post or office can be made by various modes. Election is only one of the modes of appointment. Therefore, the provisions of section 16 can certainly be applied. There is one important point which is required to be noted here. That is in respect of the power conferred upon the people to elect their representatives to the legislature or the general body of the Panchayat, municipality, etc. which is not to be confused with the power to appoint. The right to elect one's representative to a seat in the Legislature does not include the right to recall because the Constitution or the relevant statute provides for specific term for which the legislators/ members/councillors are elected. As Edmand Burke has said, people's representatives in the legislature are not their mere agents, but they are their deligates. The election to the seats in legislative bodies therefore, stands on a different footing from the appointment of the office bearers who are only agents of the particular body which elects them. Hence the power to appoint, whether by election or otherwise, also includes the power to remove the appointees unless there are specific Page 6 of 52 C/SCA/16515/2013 JUDGMENT provisions to the contrary or unless the appointment for a specific term. A Division Bench of this Court in the case of Chimanbhai R. Patel (supra) has also held that even though the provisions of Gujarat Municipalities Act do not contain any specific provision for the removal of the Chairman of the Committee, the general rule that the appointing authority namely the Municipality can remove the Chairman of the Committee, if he abuses his power as the Chairman thereof, must apply. It is also held that the office of the Chairman of a Committee is distinct and separate from the office of a Municipal Councillor. In the instant case also the post of Chairman of the Social Justice Committee is separate and distinct from the membership of the Committee and the membership of the panchayat and therefore, the vote of no confidence will obviously be concerned with the petitioner's holding the post of Chairman and not with the membership of the Committee or of the taluka panchayat." (Emphasis supplied)
5. The aforesaid decision of the learned Single Judge shows that mainly two aspects came to be considered; one was that the body, which has power to elect its office-bearers by simple majority, has also inherent or implied power to remove them by passing motion of no-confidence by simple majority, unless there is specific provision prescribing a special procedure or specific requirement by the statute; and the second was the aid of Section 16 of the General Clauses Act could also be taken. The learned Page 7 of 52 C/SCA/16515/2013 JUDGMENT Single Judge found that when there is power to appoint, either by election or otherwise, it includes power to remove the appointee, unless there are specific provisions to the contrary or unless the appointment for a specific term. The learned Single Judge in the said decision had also observed that when two interpretations of statutory provisions are possible, one which accords with a well established convention of public life and the other which militates against the well established convention of public life, the Court must instinctively go for former. Ultimately, the petition was dismissed.
6. Thereafter in the case of Nandlal Bavanjibhai Posiya Vs. Director of Agriculture Marketing & Rural Finance, reported in 2002(1) GLH, 659, the Full Bench (Coram: D.M. Dharmadhikari, C.J., J.M. Panchal & N. G. Nandi, J.J.) found that a common question of general importance had arisen as to whether in absence of express provisions for moving and passing no-confidence motion against the Chairman/Vice Chairman of Agricultural Produce Market Committee under the Gujarat Page 8 of 52 C/SCA/16515/2013 JUDGMENT Agricultural Produce Market Act, 1963 (hereinafter referred to as "APMC Act") and the Rules framed thereunder and the Chairman of Social Justice Committee under the Panchayat Act and the Rules framed thereunder, such a motion can be validly passed or not? The Full Bench did take note of the earlier decision of this Court in the case of Narmadaben V. Parmar (Supra) and also the Division Bench judgement of this Court in the case of Chimanbhai R. Patel v. Anand Municipality & Ors., reported in 1983(1) GLR, 67 and thereafter made observations from paragraph 48 onwards, but for the purpose of the present controversy on the question referred to us the relevant would be from paragraph 56 to 68, which can be extracted for ready reference as under:-
"56. In the case of no confidence motion, if the Chairman or Vice Chairman as the case may be, is present in the meeting, he will have full opportunity to participate in the meeting and will get opportunity to speak on the no confidence motion and place his point of view before the members to regain confidence. Subrule (4) of Rule 35 provides "that the person presiding over the meeting shall be entitled to speak and vote on all questions at the meeting". This Rule permits Chairman or Vice Chairman, as the case may be, if he is presiding the meeting to speak and vote. If he is not presiding the meeting, he is entitled to participate and Page 9 of 52 C/SCA/16515/2013 JUDGMENT speak qua member of the meeting. As in case of any other meeting, a meeting called for passing no confidence motion will also require three days clear notice with specification of time and place at which such meeting is to be held and all members including Chairman or Vice Chairman against whom no confidence motion is proposed are required to be served with the notice of the meeting. A copy of the notice of the meeting is also required to be sent to the Director or his authorised representative. Subrule (7) of Rule 35 provides, that the Director or his authorised representative shall be entitled to attend any meeting, but he shall not be entitled to vote. The presence of Director or his authorised representative in every meeting including in a meeting specially called for passing a no confidence motion, will ensure smooth holding of such a meeting with due participation of all the members and grant of opportunity to participate and speak to the holder of the elected office against whom the no confidence motion is proposed to be moved and passed. Under subrule (8) of Rule 35, it is obligatory for the Secretary of the committee to attend every meeting to express his views and explain facts concerning the topic or agenda under discussion. Secretary, is thus responsible for proper conduct of every meeting of the Market Committee, although, he has no right to vote or to make any proposal in the meeting.
57. The examination of the procedure of holding meeting under Rule 35 as discussed above, covers, in our considered opinion, a special meeting called by members for passing a no confidence motion by simple majority.
58. A contention was also advanced that there are no Specific Rules regulating the procedure of moving of a no confidence motion in a particular manner and in the Page 10 of 52 C/SCA/16515/2013 JUDGMENT prescribed form with stating grounds on which the motion is moved, as is to be found in the provisions of the Municipalities and Panchayats Acts, particularly in Education Committee of Panchayat. Reference in this respect is made to Gujarat Panchayats (Procedural) Rules 1997 which were published in the Gazette of Government of Gujarat Extraordinary Part IA No. 29 on 631997.
(See 1997 GCD Gujarat Section Part II at page 147). On the basis of the above Procedural Rules applicable to Panchayats, it is pointed out that it is only against Sarpanch/President or Upa Sarpanch/Vice President (under rule 20) and against the Chairman of the Education Committee (Rule
48), that no confidence motion can be moved in prescribed form A and B respectively provided under the Rules. On the basis of the prescribed form A and B for moving no confidence motion, it is pointed out that it contemplates specification of the reasons for moving the no confidence motion. Such a provision or procedure, it is contended, being absent in the Agricultural Produce Markets Act and Rules, a no confidence motion cannot be allowed to be moved without specification of reasons or grounds for moving the motion and without grant of opportunity to the holder of the elected office against whom motion is moved so as to allow him to meet those grounds and reasons to persuade the members to repose confidence in the holder of the office.
59. As has been held by us above, democratic institution transacts its business on majority opinion of its members. This is an unwritten Rule, tradition and work culture of every elected body. It is only when there is a departure from this tradition or unwritten Rule that Rules of business, bye laws or statutes governing the democratic institutions may provide for particular majority of 2/3rd or less for taking decisions. Decision making process of Page 11 of 52 C/SCA/16515/2013 JUDGMENT democratic institution requires formation of opinion for resolutions by majority of its members. Enjoyment of confidence by the leader of the democratic body is essential in decision making process and it is more necessary for implementation of the decisions of the majority. Take for example that a particular decision is taken by majority, but due to lack of confidence enjoyed by the leader, the decision is not carried out, a conflict, and some times, a stalemate will be created in the working of the elected body. As has been quoted above, Section 19 of the Agricultural Produce Markets Act requires that every contract entered into by Market Committee shall be in writing and shall be signed on behalf of the Market Committee by its Chairman and two other members and no contracts not so executed shall be binding on it. A situation might arise where the Chairman, because he has lost confidence, is unable to obtain the signatures on a contract to be executed on behalf of the committee, although a resolution in favour or against such a contract had already been passed. Similarly, Rule 32 of the Agricultural Produce Market Rules confers powers for performing important functions by the Chairman and Vice Chairman, such as, to preside over the meetings, conduct business, watch over the financial and executive administration of the Market Committee, exercise supervision and general control over the acts and proceedings of the employees in matters of executive administration, and in case of emergency, direct execution or stoppage of any work, which may require sanction of the Market Committee. If a Chairman or Vice Chairman has lost confidence of the members of the Committee, action taken by him under Rule 32 in discharge of his duties and functions will be criticised or opposed and will not get any support from the members. Thus, loss of confidence in the leader of an elected body would many times hamper smooth Page 12 of 52 C/SCA/16515/2013 JUDGMENT working of the elected body, and some times, may make it impossible for him to carry on the functions of the committee due to internal feuds and conflicts. The work culture of a democratic body inhers in it the right of its members to move a no confidence motion against their elected leader, which is a concomitant of the right to elect the leader. No confidence motion can be passed by simple majority against the holder of the elected office, who is elected by simple majority, unless the Rules of business or byelaws or statute indicate a contrary intention or prohibit passing of a no confidence motion. We do not find any force in the submission made that no confidence motion has to be moved only on reasons to be specified in writing in the notice proposing the motion and has to be passed after grant of opportunity on those reasons to the holder of office against whom it is moved. Supreme Court had occasion in the case of Babubhai Muljibhai Patel vs. Nandlal Khodidas Barot and others reported in AIR 1974 SC 2105 to consider the nature and requirement of a no confidence motion in local bodies, particularly under Gujarat Municipalities Act, the provisions of which came up for consideration before it. Comparing `no confidence motion' with a `motion for censure', the Supreme Court observed thus:
"There is no imperative requirement in the case of a motion of no confidence that it should be passed on some particular ground. There is nothing in the language of Section 36 of the Gujarat Municipalities Act reproduced earlier which makes it necessary to specify a ground when passing a motion of no confidence against the President. It is no doubt true that according to the form prescribed the ground for the motion of no confidence has to be mentioned in the notice of intention to Page 13 of 52 C/SCA/16515/2013 JUDGMENT move a motion of no confidence. 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 censure. 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."
60. From the observations quoted above, it is clear that no confidence motion does not require statement of any reasons for moving the motion 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 Page 14 of 52 C/SCA/16515/2013 JUDGMENT 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. The principles of natural justice are not breached where a no confidence motion is moved with due notice to the person against whom it is moved and he gets an opportunity in the meeting for passing the motion to participate and have his say to regain confidence of the elected body. Merely because in the Agricultural Produce Markets Act and the Rules, there is no Rule and Form prescribed for moving the motion with requirement of specification of reasons and grounds for moving and passing it, it cannot be held that a no confidence motion cannot be passed against the Chairman and Vice Chairman of Market Committee. Justice M.S. Shah in considering absence of similar express provision of no confidence motion against Chairman of Social Justice Committee in Gujarat Panchayats Act and the Rules, read and recognised such a provision, as a necessary adjunct of the power of committee to elect. In the case of Narmadaben (supra) reported in 1998 (1) GLR 225, the following quoted observations of M.S. Shah, J. have our respectful approval, as it accords with the views expressed by us above: "I have heard the learned counsel for the parties at length. It is true that the provisions of the Act do not specifically provide for removal of the Chairman of the Committee by passing a vote of noconfidence. However, it is required to be noted that the provisions of Sec. 123(9)(b) provide for the term of the Committee making it coextensive with the duration of the Panchayat which is five years. However, no term is provided for the office of the Chairman of the committee. There is, therefore, nothing in the provisions of Sec. 123 of the Act which gives any fixed term to Page 15 of 52 C/SCA/16515/2013 JUDGMENT the Chairman of the committee although the members of the Committee get term coextensive with the duration of the Panchayat. If the legislature intended to confer any such fixed term on the Chairman of the Committee the legislature would have clearly provided so.
"It is also true that there are specific provisions for removal of Sarpanch/Upasarpanch of the Gram Panchayat, President/Vice President of Taluka Panchayat under Secs. 56, 70 and 84 respectively but there is no such provision for chairman of any Committee. But Mr. Jani has rightly pointed out that in all those provisions specific provision is made requiring passing of no confidence motion by 2/3rd majority and not by a simple majority. It is a basic tenet of democracy that an elected body has the power to elect its office bearers and if the body is not held to have power to appoint or remove its office bearers, the body will never be able to enforce accountability or responsibility of its officebearers, the body will never be able to enforce accountability or responsibility of its office bearers or control the action of its office bearers. For instance, if one looks to the constitution of the Social Justice Committee, it comprises of five members and if, as in the instant case, out of five members four members have no confidence in the Chairman and if this situation is allowed to continue till expiry of the term of the Committee (which event will take place in July 2000 in the instant case), there will be constant deadlock and the Committee will not be able to function effectively and carry out the duties assigned to it. It must, therefore, be held that the body which has power to elect its office Page 16 of 52 C/SCA/16515/2013 JUDGMENT bearers by a simple majority has also the inherent or implied power to remove them by provisions prescribing a special procedure or special requirement, such as the requirement for 2/3rd majority to remove the President/Vice President of the taluka Panchayat/District Panchayat."
61. Learned Single Judge M.S.Shah, J. in taking the above view placed reliance amongst many other decisions, mainly on the Division Bench decision of Delhi High Court, in the case of Bar council of Delhi vs. Bar Council of India reported in AIR 1975 Delhi
200. In Bar Council case, a similar question arose, as to whether, in the absence of specific provision under the Advocates Act, Chairman of Bar Council, can be removed by the members of the Bar Council, by moving a no confidence motion. The Division Bench of Delhi High Court took the view that the general or common law is that those who have elected have a right to remove the person elected b ythem, and if this general principle is to be departedfrom, the statute or law governing the elected bodyshould contain such a provision indicating a contrary intention. In absence thereof, the general or common law will prevail, that those who elect can be removed by moving a no confidence motion. Such right is inherent in the elected body. Otherwise, holder of elected office would become irremovable, although, he has lost the confidence of the body and he is acting against the interest of the body. The following observations of Division Bench of Delhi in the case of Bar Council (supra) deserve to be quoted:
"The view expressed by the majority of the Bar Council of India that a rule cannot be made under Section 15 of the Advocates Act for the removal of the Chairman of the State Bar Council leads to the result that once elected such Page 17 of 52 C/SCA/16515/2013 JUDGMENT Chairman is irremovable. He would go out of office only when the State Bar Council does at the expiry of its statutory tenure. Such a result can be justified only if the common law stated above has been changed by the statute. The view of the Bar Council of India is, on the other hand, based on the very silence of the statute on this point. We are of the opinion that such silence indicates that the common law regarding the removal of the holder of an office remains unchanged. The statute does not, therefore, have to say that the Chairman of the State Bar Council would be removable by a resolution of no confidence. The reason is that such power of removal is inherent in the Bar council which elects its Chairman. The power given to the State Bar Council to elect its Chairman is the codification of only a part of the common law. Such codification does not change the other part of the common law which implies in the State bar Council the power to remove the Chairman so elected. Just as rules can be made under Section 15 to carry out the expressed power of the Bar Council to elect the Chairman, it would appear that rules may also be made to carry out the implied power of the State Bar Council to remove the Chairman. The two powers are inseparable in common law. They can be separated only by a statutory intervention. So long as this is not done, they would remain connected with each other even though only one of the powers, namely, the power of election has been made statutory while the other power, namely, the power of removal has been left to be implied. If such a power is not implied, the mere codification of the power to elect would result in a change in the common law. There is no warrant for implying such a change. On the contrary, the Page 18 of 52 C/SCA/16515/2013 JUDGMENT construction of the statute in the light of the common law implies such a power in the State Bar Council."
62. Taking somewhat a different view from the observations of the Delhi High Court in the case of Bar Council (supra), we have held that not as a common law right, but an inherent statutory right exists in the members of the elected body to remove its leader by no confidence motion in accordance with the same procedure by which he is elected and in the absence of contrary provision in the law governing such elected body, such right has to be read into the statute.
63. On behalf of the petitioners/appellants, heavy reliance has been placed on the Division Bench decision of Andhra Pradesh High Court (1975 ILR 242) and Full Bench decision of Punjab and Haryana High Court (AIR 1991 P&H 149). It is also pointed out that the learned Single Judge (M.S. Shah, J.) in his order impugned in the Letters Patent Appeal relied on the decision of Single Bench of Andhra Pradesh High Court (AIR 1972 AP 342) (supra) which was overruled by the Division Bench Decision (supra) and decision of Punjab and Haryana High Court which was overruled by the Full Bench decision (supra) of the same Court.
64. The Division Bench decision of Andhra Pradesh High Court and Full Bench decision of Punjab and Haryana High Court arose from the provisions of Cooperative Societies Acts of the respective States. The courts by taking external aid of comparable laws applicable to other local bodies, in which provisions of no confidence with procedure of moving and passing it existed, came to the conclusion that absence of similar provisions in cooperative law indicates an intention contrary, and it is not permissible for the court to read provision Page 19 of 52 C/SCA/16515/2013 JUDGMENT of no confidence motion in cooperative law.
65. We do not consider it necessary to express any opinion on the correctness of the reasonings and conclusions contained in the decisions of Full Bench of Punjab and Haryana High Court and Division Bench decision of Andhra Pradesh High Court (supra), because we have construed the provisions of Agricultural Produce Markets Act and the Rules and the Panchayats Act and the Rules, as discussed above. Similarly, the decisions of Nagpur Bench of Bombay High Court (1960 LLJ 99) and Division Bench decision of Bombay High Court (AIR 1982 Bom
216) are not only distinguishable on facts, but to the extent they hold that provisions of Sections 16 of the General Clauses Act not applicable to elective office, we have expressed our respectful disagreement for the reasons mentioned above.
66. Our conclusion, therefore, both in relation to the Chairman and/or Vice Chairman of Market Committee under the Agricultural Produce Markets Act and the Rules and Chairmen of various Committees of Panchayats under the Panchayats Act and the Rules, is that if a holder of office is elected by simple majority by the body in requisite quorum, he can be removed or recalled by a simple majority, in the absence of any provision prohibiting such a course or prescribing any particular procedure of moving the no confidence motion with a particular majority and passing the same by a particular majority.
67. The decisions of Division Bench of Delhi High Court (AIR 1975 Delhi 200) relating to no confidence motion against Chairman of Bar Council and Division Bench decision of our own Court in Chimanbhai R. Patel (supra) (1983 (1) GLR 67) fully support the view taken by us and with which we have expressed our respectful agreement.
Page 20 of 52
C/SCA/16515/2013 JUDGMENT
68. In construing provisions of law regulating the constitution and working of an elected body, such interpretation should be preferred which ensures its smooth functioning, and any other interpretation which might create hindrance or stalemate in its functioning needs to be avoided."(Emphasis supplied)
7. The aforesaid shows that the Full Bench did emphasis that the loss of confidence in the leader of an elected body would many times hamper smooth working of the elected body, and some times, may make it impossible for him to carry on the functions of the committee due to internal feuds and conflicts. It was observed that the work culture of a democratic body inhers in it the right of its members to move a no-confidence motion against their elected leader, which is a concomitant of the right to elect the leader. It was also held that no-confidence motion can be passed by simple majority against the holder of the elected office, who is elected by simple majority, unless the rules of business or bye- laws or statute indicate a contrary intention or prohibit passing of a no-confidence motion. The Full Bench of this Court also found that the Page 21 of 52 C/SCA/16515/2013 JUDGMENT 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. The Full Bench further held that it is not a common law right, but an inherent statutory right exists in the members of the elected body to remove its leader by no-confidence motion in accordance with the same procedure by which he is elected and in the absence of contrary provision in the law governing such elected body, such right has to be read into the statute. The Full Bench further observed that in construing provisions of law regulating the constitution and working of an elected body, such interpretation should be preferred which ensures its smooth functioning, and any other interpretation which might create hindrance or stalemate in its functioning needs to be avoided.
8. The above referred earlier two decision; one of the learned Single Judge (Coram: M. S. Shah, J.) Page 22 of 52 C/SCA/16515/2013 JUDGMENT was under Gujarat Panchayat Act, whereas the Full Bench decision (Coram: D.M. Dharmadhikari, C.J., J.M. Panchal & N. G. Nandi, J.J.) was under APMC Act. Similar question under Gujarat Cooperative Societies Act (hereinafter referred to as 'the Act') once again came up before the Division Bench of this Court (Coram: M. S. Shah & D. A. Mehta, J.J.) in the case of Motibhai R. Chaudhary, Chairman v. Ragistrar, Coo. Societies, reported 2005(1) GLH, 270 as to whether in absence of any specific provision under the Act a motion of no-confidence could be moved against the elected representative by the electorates, who have elected such leader. The Division Bench of this Court after having considered the earlier Full Bench decision of this Court in the case of Nandlal Bhavanjibhai Posiya (Supra) observed at para-27 as under :-
"21. A perusal of the relevant provisions of the Gujarat Cooperative Societies Act, the Gujarat Cooperative Societies Rules and the byelaws of the Society makes it clear that there is no prohibition on the managing committee of a Federal Society or any cooperative society removing its Chairman by passing a vote of no confidence. While the byelaws provide for a three year term for the managing committee (bye law No.35(3)) no term is provided for the Chairman and ViceChairman of the managing Page 23 of 52 C/SCA/16515/2013 JUDGMENT committee. Since the Chairman / ViceChairman is elected by members of the managing committee by a majority and since no term is provided for the Chairman/Vice Chairman, as per the provisions of Section 16 of the Bombay General Clauses Act, the managing committee also has the power to remove him by passing a vote of noconfidence by a simple majority. There is nothing in the provisions of the Gujarat Cooperative Societies Act, 1961, Gujarat Cooperative Societies Rules, 1965 or byelaws of respondent No.3Federal Society which negates the power of the managing committee available to it under Section 16 of the Bombay General Clauses Act. Although byelaws provide for removal of a member of the Society by a threefourth majority of the general body present at the meeting on the ground of default in payment, insolvency etc. and also for removal of a member of the managing committee by a two third majority of the general body present at the meeting the byelaws do not contain any provision which would even remotely take away the general power of the managing committee under Section 16 of the Bombay General Clauses Act that the power to appoint includes the power to remove.
21.A Moreover, a Full Bench of this Court speaking through the then Chief Justice Hon'ble Mr Justice DM Dharmadhikari (as His Lordhsip then was) has already held in NANDLAL BAVANJIBHAI POSIYA & ORS Vs. DIRECTOR OF AGRICULTURE MARKETING & RURAL FINANCE & ANR, 2002 (2) GLR, 1132 as a general principle that a democratic institution transacts its business on majority opinion of its members. This is an unwritten rule, tradition and work culture of every elected body. It is only when there is a departure from this tradition or unwritten rule that the Rules of Business, byelaws or statutes governing the democratic institutions may provide for particular majority of 2/3 rd or less for taking decisions. Enjoyment of confidence by the leader of the democratic body is essential in decision making process and it is more necessary for implementation of the decisions of the majority.
If a particular decision is taken by majority, Page 24 of 52 C/SCA/16515/2013 JUDGMENT but due to lack of confidence enjoyed by the leader, the decision is not carried out, a conflict, and some times, a stalemate will be created in the working of the elected body. The loss of confidence in the leader of an elected body would many times hamper smooth working of the elected body, and some times, may make it impossible for him to carry on the functions of the committee due to internal feuds and conflicts. The work culture of a democratic body inhers in it the right of its members to move a noconfidence motion against their elected leader, which is a concomitant of the right to elect the leader. Noconfidence motion can be passed by simple majority against the holder of the elected office, who is elected by simple majority, unless the Rules of Business or bye laws or statute indicate a contrary intention or prohibit passing of a noconfidence motion. The Full Bench of this Court made the aforesaid observations which apply to elected bodies generally and not merely to the Agricultural Produce Market Committees.
The decision of a Division Bench of Bombay High Court and the decisions of Full Benches of Punjab & Haryana, Andhra Pradesh and Kerala High Courts relied upon by learned counsel for the appellants were also duly considered by the Full Bench of this Court. The view taken by the aforesaid High Courts that provisions of clause16 of the General Clauses Act would not apply to the elected offices has not been accepted by the Full Bench of this Court. While concluding, the Full Bench observed as under: "In construing provisions of law regulating the constitution and working of an elected body, such interpretation should be preferred which ensures its smooth functioning, and any other interpretation which might create hindrance or stalemate in its functioning needs to be avoided". The Full Bench of this Court agreed with the Division Bench of the Delhi High Court which held Page 25 of 52 C/SCA/16515/2013 JUDGMENT in Bar Council of Delhi vs. Bar Council of India, AIR 1975 Delhi 200, that the body which has the authority to elect its Chairman has the inherent and implied power to remove the Chairman. If the Chairman holds his office at pleasure, then he can be removed at will but if the Chairman holds his office otherwise than at pleasure, he can be removed only for cause after notice and hearing. The Delhi High Court had relied on the statement of law made in 19 Corpus Juris Secundum, pages 7172 and in 19 American Jurisprudence 29, pages 545 and 547.
22. Mr Jani for the contesting respondents has also relied on the decisions of the English Courts in Booth v. Arnold, (1895) 1 QB 571 and Foster v. Foster, (1916) 1 Chancery Division 532. However, since the Full Bench of this Court has already considered this question at length, we do not propose to discuss these judgments.
23. Mr Nanavati has, however, placed strong reliance on the decision in Mohan Lal Tripathi vs. Dist. Magistrate, Rae Bareilly, AIR 1993 SC 2042 in support of his submission that concepts familiar to common law and equity must remain stranger to Election law unless statutorily recognised and that right to remove an elected representative, too, must stem out of the statute, its existence or validity can be decided on the provision of the Act, rules or byelaws and not as a matter of policy. Apart from the fact that the observations relied upon by the appellant herein were also considered by the Full Bench of this Court in the case of N.B. Posiya (supra), this Court would like to deal with the above authority at some length.
24. Before considering the applicability of the aforesaid decision to the facts of the present case, it is necessary to note the caveat sounded by the Apex Court in Union of India vs. Chajju Ram, (2003) 5 SCC 568, that "it is now well settled that a decision is an authority for what it decides and not what can logically be deduced therefrom. It is equally well settled that a Page 26 of 52 C/SCA/16515/2013 JUDGMENT little difference in facts or additional facts may lead to a different conclusion." In Haryana Financial Corporation vs. Jagdamba Oil Mills, (2002) 3 SCC 496 (para 19) also, the Apex Court has made the following pertinent observations : "Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are not to be read as Euclid's theorems nor as provisions of the statute. The observations must be read in the context in which they appear. Judgments of Courts are not to be construed as statutes."
25. In Mohan Lal Tripathi's case (supra), as per the Scheme of the U.P. Municipalities Act, the President of the Municipality was directly elected by the voters of the town because the population of the town was less than one lakh. However, under the Act, the power to remove the President by passing a motion of no confidence was vested in the Municipal Board. The said provision contained in subsection (2) of Section 87A of the Act was sought to be read down, and in the alternative, was challenged by the appellant who was directly elected as President by the voters in the town but was removed from the office of President by a vote of no confidence passed by the Municipal Board. The said challenge was based mainly on the following grounds:
(i) the provision was applicable only where the President of the Municipality is elected by the members of the Municipal Board for a town having population of more than one lakh. The provision was not applicable where the President of the Municipality was directly elected by the voters in the town with population of less than one lakh.
(ii) where the President is directly elected by Page 27 of 52 C/SCA/16515/2013 JUDGMENT the people of the town, his removal by the Municipal Board which is a smaller and a different body than the one that elected him, was violative of the democratic concept of removal or recall of an elected representative by the same body only.
(iii) Such a provision was even otherwise arbitrary and irrational and, therefore, violative of Article 14 of the Constitution.
26. On interpretation of the relevant provisions of the Act, the Apex Court rejected the first contention and held that such power of removal by passing a vote of no confidence was available against Presidents of all Municipalities, whether directly elected or elected by the Municipal Board.
The second contention which has been strenuously urged by the learned counsel for the present appellant is really not available to him in the facts of the present case, because the Chairman in the present case was elected by elected members of the Managing Committee themselves and the same body has removed him by passing a vote of no confidence.
In Mohan Lal Tripathi's case, the Apex Court held that when the statute provides for removal of President of a Municipality by passing a vote of no confidence by the members of the Municipal Board even against a President directly elected by the people of the town, such a statutory provision prevails notwithstanding any concept or political philosophy that the body which has elected its representative should itself have the power to remove or recall the elected representative. However, what is interesting is that the Court negatived the challenge based on Article 14 that it is arbitrary or irrational to permit a smaller and different body than the one that elected the President of the Municipality to remove the President. The Apex Court gave the following reasoning: Page 28 of 52 C/SCA/16515/2013 JUDGMENT ".. A person removed from office of President for loss of confidence, from the very nature of the Constitution of Board, is recall by the electorate themselves. An elected representative is accountable to its electorate. That is the inherent philosophy in the policy of recall. For the President his electorate, to exercise this right, is the Board as it comprises of representatives of the same constituency from which the President is elected. Purpose of S.87A of the Act is, to remove elected representative who has lost confidence of the body which elected him. It may be by people themselves or they may entrust their power through legislation to their representative. In Act it is the latter. Members of the Board are elected from smaller constituencies. They represent the entire electorate as they are representatives of the people although smaller in body. A President who is elected by the entire electorate when removed by such members of the Board who have also been elected by the people is in fact removal by the electorate itself. Such provision neither violates the spirit nor purpose of recall of an elected representative. Rather ensures removal by a responsible body. It cannot be criticised either as irrational or arbitrary or violative of any democratic norm. ....... The Board is thus visualised as a body entrusted with responsibility, to keep a watch on the President whether elected by it or the electorate. Any arbitrary functioning by the President or disregard of provision of the Statute or acting contrary to the interest of electorate could be known to the Board only. Therefore, it was not only proper, but necessary to empower the Board to take action, if necessary."
The aforesaid observations, therefore, support the case of the respondents herein (original petitioners) rather than the appellant. It is not possible to visualize the accountability of the Page 29 of 52 C/SCA/16515/2013 JUDGMENT President to the body electing him without that body having the power to remove him by passing a vote of no confidence, unless the relevant statute prescribes a different procedure or forum.
27. As far as the contention of the appellant that the appellant ought not to have been restrained from acting as a Chairman of the Federal Society on the basis of physical / mental incapacity when the medical certificates are in favour of the appellant, it is required to be noted that as many as 13 out of the 15 elected members of the Managing Committee have passed a no confidence motion against the appellant (original respondent No.4). As per the settled legal position, in the case of motion of no confidence, there is no imperative requirement that it should be passed on some particular ground. There is a difference between motion of no confidence and a censure motion. While it is necessary in the case of a censure motion to set out a ground or charge on which it is based, a motion of no confidence need not set out a ground or charge. No such consideration of impropriety or lapse arises when a motion of no confidence is moved. Although a ground may be mentioned when passing a motion of noconfidence, the existence of a ground is not a prerequisite for a motion of noconfidence. 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. (vide - Babulal Muljibhai Patel vs. Nandlal Khodidas Barot & Ors., AIR 1974 SC 2105 and N.B. Posiya vs. Director of Agricultural Marketing & Rural Finance, 2002 (2) GLR 1132). Hence, it is not necessary to consider the certificates relied upon by the appellant and that too when the appellant is admittedly unable to speak."(Emphasis supplied)
9. It appears that thereafter before another learned Single Judge of this Court in the case of Page 30 of 52 C/SCA/16515/2013 JUDGMENT Babulal Kalidas Patel Vs. State of Gujarat when the motion of no confidence was moved by the members of the Managing Committee against the Chairman of Banaskantha District Cooperative Purchase and Sale Union Ltd., similar challenge was made that there is no provision under the Gujarat Cooperative Societies Act for any motion of no confidence and hence there is no authority to call or convene the meeting for consideration of motion of no confidence. Before the learned Single Judge the above referred three judgments of this Court in the case of Narmadaben V. Parmar (Supra), Nandlal Bavanjibhai Posiya (Supra) and Motibhai R. Chaudhary (Supra) were brought to his notice. However, before the learned Single Judge on behalf of the petitioner subsequent decision of the Apex Court in the case of Pratap Chandra Mehta vs. State Bar Council of Madhya Pradesh & Anr., reported in (2011) 9 SCC 573 was relied upon and the observations made by the Apex Court at para-81 in the above referred decision were pressed in service. It also appears that before the learned Single Judge the other decisions of the Apex Court were also relied upon on behalf of Page 31 of 52 C/SCA/16515/2013 JUDGMENT the petitioner. However, the learned Single Judge after considering the decisions cited before him observed at para 8.1 to 8.3 as under:-
"8.1 That the genesis about interpretation and applicability of section 16 of General Clauses Act to elective office, in absence of specific statutory provision as surfaced in the reasonings of Delhi Bar Council [supra], in turn followed by learned Single Judge in Narmadaben [supra] and then essentially, materially and specifically relied on by Full Bench in Posiya [supra] and Division Bench in Motibhai Chaudhary [supra]. Thus, a common thread which pervades through the fabric and the substratum of Full Bench decision in Posiya [supra] and Motibhai Chaudhary [supra] is interpretation and applicability section 16 of the General Clauses Act, to which the Apex Court has expressed clear disapproval. Thus, the very basis, essence and substance of both the above decisions is lost and law declared on the basis of interpretation and applicability of section 16 of Bombay General Clauses Act now stand as impliedly overruled by the decision of Pratap Chandra Mehta [supra].
8.2 On specif requirement of provision under the statute in the matter of no confidence motion in case of elective representative of the body governed on the basis of democratic members is recognized by the decisions as discussed in earlier paragraphs Mohan Lal Tripathi [supra], Bhanumatiben [supra], Afjal Imam [supra], Pratap Chandra Mehta [supra] and Ravi Yashwant Bhoir.
8.3 That order / notice / communication impugned in each of these petitions is based on the law declared in the case of Posiya [supra] and Motibhai R. Chaudhary [supra], which now stand impliedly overruled by the Apex Court as held above. Therefore, issuance of such order / notice / communication impugned in each of these petitions is without authority of law and illegal and deserves to be quashed and set aside."Page 32 of 52
C/SCA/16515/2013 JUDGMENT
10. Thereafter, the learned Single Judge quashed the communication for convening of meeting for consideration of motion of no confidence. The relevant aspect is that at para 8.1 reproduced hereinabove the learned Single Judge found that the basis of the above referred three judgments of this Court in the case of Narmadaben V. Parmar (Supra), Nandlal Bavanjibhai Posiya (Supra) and Motibhai R. Chaudhary (Supra) are impliedly overruled by the decision of the Apex Court in the case of Pratap Chandra Mehta. The learned Single Judge after having recorded the conclusion that the above referred three decisions of this Court are impliedly overruled by the Apex Court, further proceeded to record independent finding at para 8.2 reproduced hereinabove and thereafter found that the order/notice/communcation in each of the petitions was without any authority in law and illegal.
11. In the present petition when the motion of no confidence came to be moved against the petitioner herein who was holding the post of Chairman of Gujarat Cooperative Milk Marketing Page 33 of 52 C/SCA/16515/2013 JUDGMENT Federation, he has preferred the petition for various reliefs for quashing of the communication for convining of meeting for consideration of motion of no confidence and the other incidental relief thereof. It further appears that the principal contention on behalf of the petitioner was that the earlier three decisions of this Court in the case of in the case of Narmadaben V. Parmar (Supra), Nandlal Bavanjibhai Posiya (Supra) and Motibhai R. Chaudhary (Supra) were no more good law since they have been found impliedly as overruled in the judgment of learned Single Judge in the case of Babulal Kalidas Patel (Supra) and hence, the motion of no confidence cannot be maintained nor meeting can be convened for consideration of such motion of no confidence. The learned Single Judge vide order dated 6.1.2014 afrer recording reasons passed the following operative portion at para 14.2 which for ready reference is as under :-
"14.2 Special Civil Application No.16515 of 2013
(i) This petition is entertained on merits. The preliminary objection of the respondents about its maintainability is rejected, for the reasons and circumstances recorded in Para 9 above.Page 34 of 52
C/SCA/16515/2013 JUDGMENT
(ii) On the principal contention of the petitioner, that in absence of any provision in the Gujarat Cooperative Societies Act, 1961, No Confidence Motion could not have been considered and passed against him, the matter is referred to the Division Bench to consider the question as to whether, the decision of the Full Bench of this Court in the case of Nandlal Bavanjibhai Posiya (supra), and that of the Division Bench of this Court in the case of Motibhai R.Chaudhary (supra) and that of Single Judge in the case of Narmadaben V.Parmar (supra), can be said to have stood impliedly overruled, as perceived by this Court in the case of Babubhai Kalidas Patel (supra), on the face of the reasons recorded in Para 7 above.
(iii) The alternative submission of the petitioner as recorded in Para 10 is rejected.
(iv)The prayer clause 15(AA) is rejected."
12. Hence, the reference before us.
13. We have heard Mr.B.B.Naik, learned Senior Counsel appearing with Mr.Champaneri for the petitioner. Mr.Prakash Jani, learned Government Pleader for respondent Nos.1 and 2 State and Mr.S.N.Shelat, learned Senior Counsel appearing for M/s.Nanavati Associates for respondent No.3, Mr.B.S.Patel, learned counsel for respondent Nos.4, 6 and 7 and Mr.Amit Panchal, learned counsel with Ms.Shivani R. Purohit for respondent No.5.
14. We have now to consider the decision of the Page 35 of 52 C/SCA/16515/2013 JUDGMENT Apex Court in the case of Pratap Chandra Mehta (Supra). The relevant aspect is that in the said decision of Apex Court in para-1 the Apex Court formulated the following questions of law and of public importance as under :-
"(1) Whether the provisions of Rules 121 and 122 A of the State Bar Council of Madhya Pradesh Rules (for short, the `M.P. Rules') are ultra vires Section 15 of the Advocates Act, 1961 (for short, `the Advocates Act'), inter alia for the reason that there is no nexus between the rule making power of the State Bar Councils and the powers provided under Section 15(1) or 15(2)(c) of the Advocates Act? Was the delegation of legislative power under Section 15 of the Advocates Act excessive, inasmuch as it does not provide any guidelines for removal of office bearers of the State Bar Councils?
(2) Whether despite the absence of the enabling provisions in the principal statute, namely, the Advocates Act, empowering subordinate State Bar Councils to enact provisions for removal of the office bearers of the State Bar Councils by `no confidence motions', such power could be read into the general clause of Section 15(1) of the Advocates Act?
(3) Whether Rules 121 and 122A of the M.P. Rules are invalid for want of prior approval from the Bar Council of India?"
15. The conclusion of the Apex Court to the above referred three questions at para 82 are for ready reference can be extracted as under :-
"Before concluding the judgment we would proceed to record our conclusions and answer the three questions posed at the outset of the judgment as Page 36 of 52 C/SCA/16515/2013 JUDGMENT follows:
Answers to:Question No. 1
We hold that the provisions of Rules 121 and 122 A (in particular) of the M.P. Rules are not ultra vires of the provisions, including the provisions of Section 15, of the Advocates Act. These rules also do not suffer from the vice of excessive delegation.Question No. 2
In view of our answer to Question No. 1, there is no need for us to specifically answer this question.Question No. 3
In view of the language of Section 15(3) of the Advocates Act and the factual matrix afore noticed by us, it is clear that the amended rules of the M.P. Rules had received the approval of the Bar Council of India, particularly Rule 122 A. The Rules would not be invalidated for want of issuance of any notification, as it is not the requirement in terms of Section 15(3) of the Advocates Act and in any case would be a curable irregularity at best."
16. The aforesaid shows that the question No.2 wherein the Apex Court had to express the view that the power to prove the motion of no confidence in absence of enabling provision under the statute viz. Advoates' Act could be read into General Clauses of Section 15 of the Advocates' Act or not, remain undecided or it could be said Page 37 of 52 C/SCA/16515/2013 JUDGMENT that the said question was not concluded by the Apex Court as reproduced hereinabove.
17. It is true that the observations were made by the Apex Court at para-81 of its decision which can be reproduced as under:-
"81. We are not able to accept the view taken by the High Court of Delhi in the case of Bar Council of Delhi (supra) in saying that solely with the aid of General Clauses Act, the power to elect would deem to include power to remove by a motion of no confidence, particularly, with reference to the facts and circumstances of this case. The power to requisition a `no confidence motion' and pass the same, in terms of Rule 122A of the M.P. Rules, is clear from the bare reading of the Rule, as relatable to loss of faith and confidence by the elected body in the elected office bearer. We have already discussed in some detail and concluded that Rule 122A of the M.P. Rules is not ultra vires the provisions of the Advocates Act, including Section 15. When the law so permits, there is no right for that office bearer to stay in office after the passing of the `no confidence motion' and, in the facts and circumstances of the present case, it is clearly established that the appellants had lost the confidence of the majority of the elected members and thus the Resolution dated 16th April, 2011 cannot be faulted with."
18. The Apex Court has shown unwillingness to accept the view taken by the High Court of Delhi in Bar Council of Delhi's case, reported in AIR 1975 (Delhi) 200 for the applicability of General Clauses Act. However, it cannot be lost sight of that the Apex Court did not conclude question Page 38 of 52 C/SCA/16515/2013 JUDGMENT No.2 which was on the premise of applicability of General Clauses Act for consideration of motion of no confidence in absence of any specific provision under the Advocates' Act. Therefore, at the most one may say that descenting view has been expressed by the Apex Court at para-81 on the aspect of applicability of General Clauses Act in a matter of consideration of motion of no confidence, but thereby it cannot be said that the Apex Court concluded question No.2 in negative or that the Apex Court finally ruled as a law to be laid down that the General Clauses Act will have no applicability for consideration of motion of no confidence under the Advocates' Act.
19. Apart from the above, if the facts of the case before the Apex Court in the case of Pratap Chandra Mehta (supra) are considered, it was a case where express provisions under the rules was made for consideration of the motion of no confidence and the validity of the said rules were under challenge. In the said decision, the Apex Court, at paragraph 45, observed thus -
"45. In the instant case, the election process as Page 39 of 52 C/SCA/16515/2013 JUDGMENT contemplated under the relevant laws is that the members of a State Bar Council are elected by the electorate of advocates on the rolls of the State Bar Council from amongst the electorate itself. The elected members then elect a Chairman, a Vice Chairman and the Treasurer of the State Bar Council as well as constitute various committees for carrying out different purposes under the provisions of the Advocates Act. In other words, the body which elects the Chairman or Vice Chairman of a State Bar Council always consists of members elected to that Council. The democratic principles would require that a person who attains the position of a Chairman or Vice Chairman, as the case may be, could be removed by the same electorate or smaller body which elected them to that position by taking recourse to a `no confidence motion' and in accordance with the Rules. The body that elects a person to such a position would and ought to have the right to oust him/her from that post, in the event the majority members of the body do not support the said person at that time. Even if, for the sake of argument, it is taken that this may not be generally true, the provisions of Rule 122A of the M.P. Rules make it clear, beyond doubt, that a `no confidence motion' can be brought against the elected Chairman provided the conditions stated in the said Rules are satisfied."
20. The aforesaid shows that the Apex Court did observe that the democratic principles would require that the person who attains the position of Chairman or Vice Chairman, as the case may be, would be removed by same electorate or similar body which elected them to that position by taking recourse of "no confidence motion" and in accordance with the rules. In our view, such Page 40 of 52 C/SCA/16515/2013 JUDGMENT observations would mean that if rule or any statute expressly provides for consideration of motion of no confidence, such rules or statute are to be followed and it would control the manner in which no confidence motion can be considered. The Apex Court further observed that the body that elects a person to such a position would and ought to have the right to oust him/her from the post, in the event the majority members of the body did not support the said person at that time. This would show the right with the electorate, who have elected the person to a particular post to oust him/her from the same post. We are of the considered view that the Apex Court in the said decision of Pratap Chandra Mehta (supra) has maintained the validity of the rules on the observance of the aforesaid principles and further legislative power to regulate the consideration of the motion of no confidence. But, thereby, it cannot be said that the Apex Court in the said decision ruled that in absence of any express provisions under statute, such right to oust a person from the post with the electorate would not exist. In our view, the Page 41 of 52 C/SCA/16515/2013 JUDGMENT observations made by the Apex Court at paragraph 45 of the decision in the case of Pratap Chandra Mehta (supra) could be said as supplementing such rights with the electorate to oust the person concerned from the post.
21. One may say that the aforesaid observations were made by the Apex Court in the above referred decision of Pratap Chandra Mehta (supra) in a case where the rules were so framed for consideration of motion of no confidence and therefore, if principles of ratio decidendi are to be strictly observed, such observations may apply in a case where there is existence of express provisions for moving of motion of no confidence or consideration thereof or that there is procedure provided for consideration of motion of no confidence. In our view, if the observations made at para 45 by the Apex Court in the decision of Pratap Chandra Mehta (supra) are not to apply in view of the distinguishing fact that before the Apex Court, the rules were so formulated and the validity of the rules were under challenge, it can hardly be said that there was overruling by the Apex Court to the view Page 42 of 52 C/SCA/16515/2013 JUDGMENT taken by the Full Bench of this Court in the case of Nandlal Bavanjibhai Posiya (supra).
22. As such, the question of consideration of motion of no confidence can be broadly considered into three contingencies -
(1) In a case where there is express provision made in the statute or rules for consideration of the motion of no confidence and the procedure expressly provided for. (2) In a case where there is no express provision made in a statute or rules for consideration of motion of no confidence. (3) In a case where the aid of General Clauses Act is to be taken for exercise of power by the electorate for cessation/removal of a person from a particular post to which they earlier elected him/her.
23. On the first contingency, we do not find any difficulty in concluding nor there could be any dispute raised in the power of the electorate for moving and the consideration of motion of no confidence. However, in the second contingency, it cannot be said that merely because in the Page 43 of 52 C/SCA/16515/2013 JUDGMENT statute there is no express provision made for consideration of motion of no confidence, there would not be any right with the electorate to oust a person concerned holding the position of majority. The Full Bench of this Court in the case of Nandlal Bavanjibhai Posiya (supra) had rather dealt with the second contingency that such right is inhered to the persons who have elected Chairman or Vice Chairman to a particular post. Since the observations of the Full Bench of this Court in the case of Nandlal Bavanjibhai Posiya (supra) are already observed hereinabove, we need not repeat the same. In the other two decisions of this Court in case of Narmadaben V. Parmar (Supra) and Motibhai Chaudhari (Supra) similar view has been in confirmity with view of Full Bench decision of this Court in case of Nandlal Bavanjibhai Posiya (Supra). Concerning to the third contingency, it is true that the Full Bench of this Court in the case of Nandlal Bavanjibhai Posiya (supra) as well as the learned Single Judge in case of Narmadaben (Supra) and Division Bench of this Court in case of Motibhai Chaudhari (Supra) supplemented the Page 44 of 52 C/SCA/16515/2013 JUDGMENT reasons for taking aid of General Clauses Act and it was observed in the aforesaid decisions that the power may vest with the person who have been elected to a particular post. We need not repeat the said part of the reasonings in the aforesaid three decisions, since the same are already reproduced hereinabove.
24. If the matter is further examined on the question to be considered by us, it may be recorded that under Gujarat Cooperative Societies Act or Rules, there is no express provision for consideration of motion of no confidence. Therefore, if the decision of the Apex Court in case of Pratap Chandra Mehta (Supra) is considered strictly on the principles of ratio decidendi, taking into consideration the facts of case before the Apex Court, as observed hereinabove, one might say that since the facts were different before the Apex Court, the decision in Pratap Chandra Mehta (supra) may not apply at all.
25. However, since the observations made by the Apex Court in its decision are also to be considered, one may further be required to Page 45 of 52 C/SCA/16515/2013 JUDGMENT examine as to whether the observations made at para 81 by the Apex Court in the case of Pratap Chandra Mehta (supra), would apply to second contingency or not.
26. In our view, the observations made by the Apex Court in the case of Pratap Chandra Mehta (supra), in its decision at para 81, would not be applicable to the second contingency because the Apex Court had no occasion to examine the said question and since there was no occasion to examine the said question or to conclude the same, question no.2 has not been concluded by the Apex Court in the said decision.
27. So far as third contingency is concerned, one may say that observations were made by the Apex Court at paragraph 81 in the case of Pratap Chandra Mehta (supra) that the aid of General Clauses Act for exercise of such power may not be available.
28. We may now further examine the decision of the learned Single Judge of this Court in the case of Babubhai Kalidas Patel (supra). The concluding observations made by the learned Single Judge in the above referred decision at Page 46 of 52 C/SCA/16515/2013 JUDGMENT para 8.1 reproduced hereinabove, shows and speaks for implied overruling by the decision of the Apex Court in the case of Pratap Chandra Mehta (supra) limited to the availability of power or the aid of General Clauses Act only and there is no consideration of the matter for applying the principles of implied overruling based on second contingency which has been so expressly considered by the Full Bench decision of this Court in the case of Nandlal Bavanjibhai Posiya (supra) and in other two decisions of this Court in case of Narmadaben (Supra) and Motibhai Chaudhari (Supra).
29. It is hardly required to be stated that when any question is to be examined for implied overruling, as per the law precedent, it would be required to be further examined as to which part of the observations has been overruled by the higher forum. If a part of the observations of High Court is not approved or a dissenting view has been expressed by the Apex Court, it cannot be termed as overruling by the Apex Court to the other part of the view taken by the High Court which was not the question decided by the Apex Page 47 of 52 C/SCA/16515/2013 JUDGMENT Court.
30. In our considered view, the overruling, if any, at the most, as observed earlier, can be said for taking aid of General Clauses Act and the view expressed thereto, but thereby it cannot be said that there is overruling by the Apex Court in its decision in the case of Pratap Chandra Mehta (supra) to the second contingency and the observations made by the Full Bench of this Court in the case of Nandlal Bavanjibhai Posiya (supra), where the consequence of second contingency was considered and views were expressed.
31. In view of the aforesaid observations and discussions, we are unable to reach to the conclusion that the decision of the Full Bench of this Court in the case of Nandlal Bavanjibhai Posiya (supra) for consideration of motion of no confidence in absence of any statutory provisions, has been completely impliedly overruled by the Apex Court through its observations made in the case of Pratap Chandra Mehta (supra).
32. In the case of Narmadaben V. Parmar (supra), Page 48 of 52 C/SCA/16515/2013 JUDGMENT the relevant observations are already reproduced by us hereinabove and we need not repeat the same but the similar position would prevail inasmuch as at the most one might say that the observations made by this Court for taking aid of General Clauses Act, may not be available but the other part of the observations and the view taken for the right of the elected representative to oust their leader in absence of any statutory provision could not be said as overruled.
33. In the same manner, in the decision of this Court in the case of Motibhai R. Chaudhary(supra), the relevant observations are already reproduced hereinabove. Hence, we need not repeat the same, but the view expressed for taking aid of General Clauses Act may be considered as overruled but the view taken for reading the right with the electorate for ousting the leader from the post in a democratic set-up is not overruled because the view taken is that unless the relevant statute prescribes the different procedure or a forum, the motion of no confidence can be considered in absence of any statutory provision prohibiting the consideration Page 49 of 52 C/SCA/16515/2013 JUDGMENT of motion of no confidence.
34. Mr. Naik, learned counsel appearing for the petitioner did make attempt to contend that apart from the decision of the Apex Court in the case of Pratap Chandra Mehta (supra), the learned Single Judge in his decision in the case of Babubhai Kalidas Patel (supra) has considered other decision of the Apex Court in the case of Mohan Lal Tripathi Vs. District Magistrate reported in AIR 1993 SC 2042:1992 4 SCC 80, Bhanumatiben Vs.State of UP, (2010) 12 SCC 1, Afjal Imam Vs. State of Bihar reported at 2011 AIR SCW 2722 and Ravi Yashwant Bhoir Vs. District Collector, Raigadh (2012) 4 SCC 407 and therefore, this Court may further examine the aspect as to whether motion of no confidence can be considered in a case where there is no express provision under the statute or law. In the submission of the learned counsel, such cannot and could not be considered for ousting any person from the post.
35. In our view, such attempt on the part of the learned counsel for the petitioner cannot be countenanced for the simple reason that when a Page 50 of 52 C/SCA/16515/2013 JUDGMENT particular question is referred to us, our judicial scrutiny and rather the jurisdiction would be limited thereto. The whole matter is not referred to us. If such a contention is countenanced, it would result into going beyond the jurisdiction of deciding the reference of a question. Hence, we are not inclined to consider the same. As such, the position is by now well settled. The reference may be made to the decision of the Apex Court in the case of Kerala State Science & Technology Museum v. Rambal and Ors. reported in (2006) 6 SCC 258, and more particularly the observations at para 8, which reads as under:
"It is fairly well settled that when reference is made on a specific issued either by a learned Single Judge or Division Bench to a larger Bench i.e. Division Bench or Full Bench or Constitution Bench, as the case may be, the Larger Bench cannot adjudicate upon an issue which is not the question referred."
36. In view of the aforesaid observations and discussions, our answer to the question is as under:-
The decision of the Full Bench of this Court in the case of Nandlal Bavanjibhai Posiya (supra) and that of the Division Bench of this Court in Page 51 of 52 C/SCA/16515/2013 JUDGMENT the case of Motibhai R. Chaudhary (supra) and that of the learned Single Judge in the case of Narmadaben V. Parmar (supra) can be said as impliedly overruled only limited to taking aid of the General Clauses Act, but cannot be said as impliedly overruled for consideration of the motion of no confidence in absence of any statutory provision provided for consideration of the motion of no confidence or in absence of any statute or rule prohibiting the consideration of motion of no confidence.
37. The reference is answered accordingly. The matter may now be placed before the learned Single Judge.
(JAYANT PATEL, J.) (Z.K.SAIYED, J.) vinod/kks/bijoy Page 52 of 52