Gujarat High Court
Faibaben Jorubhai Vala & 2 vs State Of Gujarat & 3 on 20 February, 2018
Author: A.J. Shastri
Bench: A.J. Shastri
C/SCA/20530/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 20530 of 2017
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FAIBABEN JORUBHAI VALA & 2....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR CB UPADHYAYA, ADVOCATE WITH MR HARSHIL C DATTANI,
ADVOCATE for the Petitioner(s) No. 1 - 3
DELETED for the Respondent(s) No. 4
MR UTKARSH SHARMA, AGP for the Respondent(s) No. 1 - 2
MR PS CHAMPANERI, ADVOCATE WITH MR M.IQBAL A SHAIKH,
CAVEATOR for the Respondent(s) No. 3
MR HARSH N PAREKH, ADVOCATE for the Respondent(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 20/02/2018
ORAL ORDER
1. The present petition is filed under Article 226 of the Constitution of India for challenging the legality and validity of the order dated 21.9.2017 passed by respondent No.2.
2. The case of the petitioners is that the petitioners are the elected representatives and members of Taluka Panchayat, Dhari, District - Amreli. The petitioner No.1 is the Chairman of Executive Committee, whereas petitioner Nos.2 and 3 are the members of the Executive Committee. These petitioners were elected under the symbol 'Indian National Page 1 of 32 HC-NIC Page 1 of 32 Created On Tue Feb 20 23:58:09 IST 2018 C/SCA/20530/2017 ORDER Congress' and were representing. The respondent No.3 filed an application before the respondent No.2 for seeking disqualification of petitioners by alleging that they have violated the provisions contained under the Gujarat Provision for Disqualification of Members of Local Authorities for Defection Act,1986 (for short 'the Act') and the Rules. The main premise on which the application was submitted is that though there was a specific whip issued by the competent authority, these petitioners have deliberately avoided, not complied with and acted against the whip. The whip was to the effect that general meeting of Dhari Taluka Panchayat is to take place on 2.8.2016 at 11.00 O'clock in the campus of MithapurDungri Gram Panchayat and it was directed that these petitioners, who elected themselves under the banner of 'Indian National Congress' and are the members of the Taluka Panchayat, Dhari, have to vote against all the items of agenda. It is alleged that this whip though has been made known to them, these petitioners have acted quite contrary to it, as a result of which initially the showcause notice was issued on 5.8.2016 as to why for violating the mandate and defying the same, the petitioners should not be suspended from the membership of the party and why the membership should not be cancelled. In response to this showcause notice which is undisputedly given, a reply is given by the petitioners on 8.8.2016 and it appears that later on, on 19.8.2016, the respondent No.3 has submitted an application before the competent authority at Gandhinagar under the provisions of the Page 2 of 32 HC-NIC Page 2 of 32 Created On Tue Feb 20 23:58:09 IST 2018 C/SCA/20530/2017 ORDER Act and the Rules. Pursuant to this application, the proceedings have been adjudicated undisputedly by the competent authority which application was registered as Application No.23 of 2016 and the authority i.e. respondent No.2 herein has passed the order on 21.9.2017 allowing the Application No.23 of 2016 and declared the petitioners disqualified as members of the Dhari Taluka Panchayat. It is this order passed by respondent No.2 is made the subject matter of present writ petition under Article 226 of the Constitution of India.
2.1 This Court on 29.11.2017, has issued the notice upon the respondents making it returnable on 20.12.2017 and thereafter, upon request of learned advocates, after civil application for direction having not been pressed on 9.2.2018, the hearing was scheduled with the concurrence of learned advocates on 12.2.2018 and with this background, this Court has taken up the hearing of present matter.
3. Mr.C.B.Upadhyaya, learned advocate appearing with Mr.Harshil C. Dattani, learned advocate for the petitioners, has vehemently contended that the order in question is not only unjust and arbitrary, but contrary to the object of the provisions of the Act and there appears to be a clear misleading of the provisions by the authority. It has also been contended that thought there was specific issues were framed by the authorities which were for consideration, the respondent No.2 has not assigned Page 3 of 32 HC-NIC Page 3 of 32 Created On Tue Feb 20 23:58:09 IST 2018 C/SCA/20530/2017 ORDER any cogent reason nor has determined in the manner in which the same are to be dealt with. It has also been contended by learned advocate that the whip itself which has been issued is not by the competent authority and there is no clarity as to who is the competent person to issue the whip. In fact, while contending this, Mr.Upadhyaya, learned advocate, has drawn the attention of this Court to Page52 of whip dated 27.7.2016 and later on, has taken the Court to a communication dated 21.9.2015 reflecting on Page55 and has then contended that the President, who said to have issued the whip, is not competent enough as is clearly reflecting from the communication dated 21.9.2015. As a result of this, the provisions contained in Section 3 of the Act are exfacie not attracted.
3.1 Mr.C.B.Upadhyaya, learned advocate, has further contended that there was a clear assertion made in the communication dated 27.7.2016 reflecting on page58 that two persons' name in this communication will indicate the whip in writing as well as orally and having not done so, it cannot be said in any way that the petitioners have violated the whip or defy the whip of the party. Learned advocate has further contended that even there is no specific resolution by the party authorizing a competent person to issue the whip and even if there is resolution, there appears to be no clarity as to who is the person to issue the whip. In the absence of production of such resolution, the authority has erroneously come to the conclusion Page 4 of 32 HC-NIC Page 4 of 32 Created On Tue Feb 20 23:58:09 IST 2018 C/SCA/20530/2017 ORDER that there is a defiance on the part of petitioners to comply with / obey the whip. This being a stringent provision to remove the elected representative by declaring him to be disqualified, the provisions are to be construed strictly and in the vagueness of such kind of situation, no steps could have been taken. This fact has not been examined by the authority, as a result of which the impugned order is not sustainable in the eye of law.
3.2 Mr.C.B.Upadhyaya, learned advocate, has further contended that there is no valid evidence led before the authority to establish that there is a defiance on the part of petitioners to obey the whip and a bare reading of the impugned order would clearly indicate that there are no cogent reasons on such serious issues which have been raised before the authority. The overall consideration of material, according to learned advocate, would lead to a situation where it is not possible to come to a definite conclusion that petitioners are guilty of defying the whip issued by the authority. The authority below having not examined these issues minutely, a clear erroneous approach is made to defence given by the petitioners. This exercise of jurisdiction is thoroughly uncalled for when the authority is acting under stringent provisions of the Act.
3.3 To strengthen the submissions, Mr.Upadhyaya, learned advocate, has placed reliance on a decisions delivered by the Apex Court in case of Sadashiv H. Page 5 of 32 HC-NIC Page 5 of 32 Created On Tue Feb 20 23:58:09 IST 2018 C/SCA/20530/2017 ORDER Patil v. Vithal d. Teke & Ors., reported in (2000) 8 SCC 82 and the decisions of this Court in case of Devabhai Parbatbhai Avadia & Ors. v. Competent Authority, appointed under Anti Defection Act & Anr., reported in 2009 (3) GLH 385 as also on a decision rendered in SCA No.11133 of 2013 and allied matters dated 6.8.2014. Relying upon said decisions, learned advocate has requested the Court to set aside the impugned order and grant the relief as prayed for in this petition.
4. As against this, Mr.P.S.Champaneri, learned advocate appearing with Mr.Iqbal A. Shaikh, learned advocate for the respondent No.2, who is on caveat and Mr.Utkarsh Sharma, learned AGP appearing for respondent Nos.1 and 2, have been heard. Mr.P.S.Champaneri, as a lead advocate, has vehemently contended that the authority has applied its mind properly, kept the provisions of the Act under consideration and upon overall evaluation of material led before him, a reasoned order is passed which does not call for any interference in exercise of jurisdiction. Mr.P.S.Champaneri, learned advocate, referring to the affidavitinreply, copy whereof is given, submitted that the provision of Section 3 of the Act with regard to defection has rightly been interpreted by the authority below and keeping in view the effect of Rule 10A of the Rules, it cannot be said that any error is committed by the respondent No.2. In fact, looking to the undisputed conduct on the part of the petitioners, no other conclusion is possible to be Page 6 of 32 HC-NIC Page 6 of 32 Created On Tue Feb 20 23:58:09 IST 2018 C/SCA/20530/2017 ORDER arrived at than what has been derived by the respondent No.2.
4.1 Mr.P.S.Champaneri, learned advocate, has further contended that the provisions of the Act has got its own object for maintaining discipline in the party and with an intent to regulate the discipline amongst the members in the party, such provisions have been incorporated under the Act. Learned advocate has drawn the attention of this Court to the effect of Section 3 as well as Section 6 of the Act and has submitted that the authority has rightly exercised the jurisdiction and this conclusion which is based upon material on record, cannot be said to be perverse in any manner. It has also been contended that there was a specific direction issued which is well within the knowledge of the petitioners even at the time when the meeting was to take place and for that purpose, he reiterated the contents of the whip reflecting on page52 of the petition compilation. It has been contended that who is the authority as can be seen very well explicitly made it clear on page55 in a communication dated 21.9.2015 and Item No.3 is related to President of the District Congress Committee, who himself has issued whip on 27.7.2016. As a result of this, no error said to have been committed which calls for interference by this Court in exercise of jurisdiction under Article 226 of the Constitution of India.
4.2 Mr.P.S.Champaneri, learned advocate, has further contended that whip was issued by the authority who is Page 7 of 32 HC-NIC Page 7 of 32 Created On Tue Feb 20 23:58:09 IST 2018 C/SCA/20530/2017 ORDER invested with the power and if the proceedings are to be seen of a meeting dated 2.8.2016 reflecting on page41 in the very 3rd paragraph of that communication clearly indicating that it was intimated and informed about the whip at 11.00 a.m. prior to the commencement of the meeting. The objection which has been raised is that it should have been given prior to holding of a meeting. When that question was raised by one of the petitioners, it was also made it clear that at that very moment that whip has been circulated and kept in the notice of all these members, who are participating in the meeting. The objection which is tried to be taken as is revealing from page41 is that it is not a case that they were not aware about the whip or had no knowledge of the whip, only technically the petitioners have objected that it should have been given prior to the meeting. But then the minutes which are recorded of this is clearly indicating that in cannot be said in any way that there is no knowledge or mandate issued by the competent authority. This being the position, as per the say of Mr.P.S.Champaneri, learned advocate, this is a clear case of defying the whip issued by the competent authority.
4.3 Mr.P.S.Champaneri, learned advocate, has further contended that these were the issues technically raised by the members prior to amendment and introduction of Rule 10A of the Rules and such kind of issues may not be raised by the members and with that very object, Rule 10A has been introduced and Page 8 of 32 HC-NIC Page 8 of 32 Created On Tue Feb 20 23:58:09 IST 2018 C/SCA/20530/2017 ORDER undisputedly, these petitioners are governed by the effect of this Rule 10A. As per the contention of Mr.P.S.Champaneri, learned advocate, undisputedly the petitioners are elected under the symbol of 'Indian National Congress'. Undisputedly, they are put to the notice of whip prior to the holding of the meeting and undisputedly, the petitioners have acted in defiance of the whip which would naturally, as a consequence, affect the existence of the petitioners in the party and, therefore, according to Mr.P.S.Champaneri, learned advocate, thee is no error committed by the authority which calls for any interference.
4.4 Mr.P.S.Champaneri, learned advocate, has further contended that by virtue of effect of Rule 10A, it is also obligatory on the part of petitioners - members to ensure as to whether any such whip is given prior to holding of a meeting and as a result of that, the duty was upon the petitioners to ensure rather than raising such kind of technicality which has not legs to stand by introduction of Rule 10A of the Rules. Mr.P.S.Champaneri, learned advocate, has then contended that in a situation like this, the petitioners have clearly given a cause of action from the date of conclusion of the meeting itself to declare them to be disqualified under the Act. For substantiating this submission, Mr.P.S.Champaneri, learned advocate, has drawn the attention of this Court to various Rules contained under the Rules which deal with the procedure, the effect of defiance of the whip and also the Rules relating to the procedure by Page 9 of 32 HC-NIC Page 9 of 32 Created On Tue Feb 20 23:58:09 IST 2018 C/SCA/20530/2017 ORDER virtue of which such applications under Section 3 can be processed by the authority. After narrating these Rules, Mr.P.S.Champaneri, learned advocate, has contended that every compliance is clearly visible while taking action against the petitioners, it is not a case in which any violation of even procedural aspect is visible. Hence, the order impugned is well within the scope of authority of respondent No.2, passed in due discretion vested in him under the law and by assigning cogent reasons which are based upon examination of material on record. As a result of which, in absence of any perversity or illegality of any nature, the impugned order is not assailable at the instance of the petitioners.
4.5 Mr.P.S.Champaneri, learned advocate, has further contended that the judgments which have been relied upon are not exfacie governing the background of the case on hand and further, it is a settled position of law that if there is a slight change of fact, it would make a world of difference in applying the principle. As a result of this, keeping in view the aforesaid circumstance, Mr.P.S.Champaneri, learned advocate, has requested the Court to dismiss the petition as no case is made out.
4.6 In support of his submissions, Mr.P.S.Champaneri, learned advocate, has placed reliance upon following decisions delivered by this Court which will be dealt with at an appropriate stage in this order.
Page 10 of 32HC-NIC Page 10 of 32 Created On Tue Feb 20 23:58:09 IST 2018 C/SCA/20530/2017 ORDER (1) Laxmiben Parthibhai Karen v. Designated Authority
- Under the Defection Acts & Ors., reported in 2051 (3) GLR 2453.
(2) Rajeshriben Vinayakbhai Dave & Ors. v. Designated Officer A.K.Rakesh & Ors., reported in 2016 (2) GLH 272.
(3) Jiviben Gemabhai Pateliya v. A.J.Shah or His successors in office, rendered in SCA No.9167 of 2016, decided on 4.8.2016.
5. In rejoinder, Mr.C.B.Upadhyaya, learned advocate, has vehemently contended that the whip was evidently vague and the documents which are sought to be relied upon to justify the validity of whip are concocted and ought not to have been relied upon by the authority. Even in the main complaint also, there are no specific pleadings to justify seeking of disqualification and in the background of this fact, reliance placed on Rule 10A of the Rules is not possible to be made by the respondent. On the contrary, the authority ought to have examined whether the whip which has been pressed into service to disqualify the members i.e. petitioners is a valid whip or not. No such finding is arrived at and even the complaint is also not based on proper verification and they are no pleadings to support the contention of Mr.P.S.Champaneri, learned advocate, now being raised before this Court. Valid authorization to issue whip is a condition precedent Page 11 of 32 HC-NIC Page 11 of 32 Created On Tue Feb 20 23:58:09 IST 2018 C/SCA/20530/2017 ORDER to attract Section 3(1)(a) of the Act. As a result of this, the authorities which have been relied upon by Mr.P.S.Champaneri, learned advocate, have no relevance. Mr.Upadhyaya, learned advocate, has further relied upon the decision delivered by this Court reported in (2009) 3 GLH 385 and has reiterated that there is no case made out of any nature which would justify the disqualification on the ground of defection by the petitioners.
5.1 Mr.C.B.Upadhyaya, learned advocate, has further contended that provisions of Code of Civil Procedure are applicable to the limited extent and if this be so, Order 6 Rule 15 of the CPC read with Rule 6 of the Rules ought to have been scrupulously observed and this having not been appreciated by the authority below, the order in question deserves to be quashed in the interest of justice. Learned advocate has further contended that in any case, this is a fit case in which exfacie the provisions are not attracted. As a result of this, the impugned order deserves to be set aside.
6. Having heard learned advocates appearing for the respective parties at length and having perused the material on record along with the petition and in affidavitinreply and in corelation of the principles which are propounded by series of decisions which are pressed into service, following circumstances are not possible to be ignored by this Court while examining the validity of the impugned Page 12 of 32 HC-NIC Page 12 of 32 Created On Tue Feb 20 23:58:09 IST 2018 C/SCA/20530/2017 ORDER order :
(1) The Gujarat Provision for Disqualification of Members of Local Authorities for Defection Act,1986 has been enacted to provide for disqualification of members of certain local authorities on the ground of defection and for matters connected therewith. The scheme of the Act, the intent of Legislation and the object and the language used in concerned statutory provision is aimed at controlling and curbing defection which had become a routine method amongst political parties. As a result of which, with a view to maintain discipline in the political parties and to effect and conduct the proceedings on democratic principles, the Act has been enacted. The object and reasons upon which the Act has been enacted are amply clear that if any member attached to a political party, who is under a mandate, if acting contrary to it, the Act has prescribed a mechanism to disqualify such member.
(2) Considering this situation, with a view to give more effective control, additional Rule has been incorporated in the year 2007 by amending the Rules and Rule 10A has been inserted, which reads as under :Page 13 of 32
HC-NIC Page 13 of 32 Created On Tue Feb 20 23:58:09 IST 2018 C/SCA/20530/2017 ORDER "10. A Councillor of Municipal Corporation or the Municipality or a member of the Panchayat who is elected on the symbol of political party shall while attending any meeting of Municipal Corporation or the Municipality or a Panchayat ensure whether any mandate is issued by such political party and if any mandate is issued by such political party, he shall obtain such mandate from such political party, or by any person or authority authorized by it. The Chair-person of any meeting of Municipal Corporation or the Municipality or a Panchayat shall verify that such a mandate has been issued by the political party, and circulated to the councilor of Municipal Corporation or the Member of Municipality or a member of the Panchayat."
Earlier, in the absence of such Rule, it appears that too technical pleas about the service of mandate, popularly known as 'whip' were being taken. It appears that in the amended Rules, a duty is cast upon the councilor of Municipal Corporation or the member of Panchayat, as the case may be, who is elected on the symbol of a political Page 14 of 32 HC-NIC Page 14 of 32 Created On Tue Feb 20 23:58:09 IST 2018 C/SCA/20530/2017 ORDER party, has to ensure while attending any meeting and to inquire whether any mandate is issued by such political party, to which he is affiliated and shall obtain such mandate. So, by introduction of this Rule 10A, an obligation is cast upon the member to inquire into whether any mandate is issued and, therefore, has to obtain such mandate. Now, the effect of this Rule imposes a duty and in that context, if the present set of fact on hand to be looked into, some of the documents which are very relevant deserve an attention by this Court. First of all, the authorization which has been given by the Gujarat Pradesh Congress Samiti if to be looked into, it authorizes the President of the concerned District Congress Samiti, who is invested with a power till further orders and undisputedly, no further modification has taken place after 21.9.2015.
(3) This document which is reflecting at Page-55 dated 2.19.2015 is clearly investing power to the President of the District Congress Committee. Now, correspondingly, if the whip in question which is made the center of controversy in the present proceeding to be looked into, it is undisputedly issued by the President, Amreli District Congress Page 15 of 32 HC-NIC Page 15 of 32 Created On Tue Feb 20 23:58:09 IST 2018 C/SCA/20530/2017 ORDER Samiti on 27.7.2016 which clearly establishes that this whip in question which has been issued dated 27.7.2016 is with the authority and in pursuance of the communication dated 21.9.2015 produced by the petitioners themselves.
(4) It is also reflecting that a clear mandate is given in the said whip dated 27.7.2016, more particularly in Para.2, to vote against the agenda items. Now, this very whip appears to have been placed to the notice of all concerned members including the present petitioners.
(5) It is also emerging from the record that Taluka Panchayat, Dhari, an open general meeting was to take place on 2.8.2016 and when the meeting was to take place, these petitioners have been specifically informed prior to the meeting which was to be convened. Page-41 of petition compilation is clearly indicating that only objection which has been raised by the petitioners appears to be that prior to commencement of meeting, the whip was not given. On the contrary, it reflects that whip has been refused. Nonetheless, it is clearly emerging that the petitioners were aware about this mandate Page 16 of 32 HC-NIC Page 16 of 32 Created On Tue Feb 20 23:58:09 IST 2018 C/SCA/20530/2017 ORDER which was read over to all the members including the petitioners. As a result of which, since the petitioners have chosen to disobey, the action appears to have been initiated. The minutes of the meeting would clearly indicate that a stand which has been taken by the petitioners is that whip has not been given prior to initiation of meeting. But it is not the case of the petitioners that they have made any attempt to ensure whether any whip is issued or not.
(6) Pursuant to the show-cause notice which has been issued in contemplation of action against the petitioners, the only defence which is tried to be projected is that the whip in a sealed cover ought to have been circulated prior to 24 hours and the same was not served. As a result of that, the petitioners have chosen to refrain from obeying. Nonetheless, a fact is admitted in their reply to the notice that it was ready over in the meeting as is clearly visible from Page-63. Similar stereotype defence is taken by other petitioners but, fact remains that it is not the case of the petitioners in any way that they made any attempt to ensure as to whether any mandate is issued by the political party, to which they were Page 17 of 32 HC-NIC Page 17 of 32 Created On Tue Feb 20 23:58:09 IST 2018 C/SCA/20530/2017 ORDER attached to. The objection in writing which has been taken before the competent authority before whom the proceeding of Section 3 of the Act were on. A bare reading of Para.4 would clearly establish which substantially raised by the petitioners as a part of their defence. Undisputedly, a mandate was ready over in a meeting; no efforts were made by the petitioners to ensure as to whether any whip is issued or not and the petitioners have acted contrary to the mandate, to which they were principally aware about the same.
(7) It is also emerging from the record that there is a substantial compliance of the entire procedure conducted before the authority and the application and process upon it and the ultimate decision is in close conformity with the Rules of procedure which are prescribed under the relevant Rules and as such, when there is a substantial compliance emerging from the record, the Court is of the opinion that well reasoned order is passed by the authority which does not call for any interference.
7. So, in the background of these facts, if the Page 18 of 32 HC-NIC Page 18 of 32 Created On Tue Feb 20 23:58:09 IST 2018 C/SCA/20530/2017 ORDER conclusion of the authority, who passed an order if to be looked into, which establishes the conduct of defiance of the petitioners and the authority has minutely examined the stand taken by the petitioners and has also clearly examined the effect of the statutory provisions and then, arrived at a specific conclusion that petitioners have attracted the infirmities as contained under Section 3(1) of the Act. Resultantly, they have been declared as disqualified.
8. A bare reading of the impugned order clearly indicating that while exercising powers vested in the authority, the authority has examined in detail the defence taken by the petitioners, has also examined the parameters of the statutory provisions and has taken the decision by assigning cogent reasons. Hence, looking to the peculiar set of circumstance reflected above, this Court sees no reason to substitute the finding arrived at by the authority in the absence of any perversity or illegality. The Court has also found that here is a case looking to the background of fact that there is no other view possible which can justify this Court to substitute even in extraordinary jurisdiction. As a result of this, there seems to be no infirmity nor any perversity in an order dated 21.9.2017. On the contrary, the Court is of the opinion that Page 19 of 32 HC-NIC Page 19 of 32 Created On Tue Feb 20 23:58:09 IST 2018 C/SCA/20530/2017 ORDER full effect to be given to the object of the Act, the intent of the Legislature and to give effect to the relevant statutory provisions contained under the Act and the Rules. Undisputedly, the conduct on the part of petitioners would lead to a situation which is found by the Court that the petitioners have defied the mandate given by the authorized person and acted in conflict with the object of the Act. Hence, no case is made out to interfere in exercise of extraordinary jurisdiction. On the contrary, interference by this Court in the background of this fact and circumstance would negate or frustrate the very object of statutory provisions of the Act and insertion of Rule 10A of the Rules. There is no circumstance visible from the entire record which would permit this Court to believe remotely that any attempt is made by these petitioners to verify s to whether any mandate is given or not nor have attempted to obtain such mandate and simply have raised a defence that they have not been circulated in advance. If this defence is accepted, the same would defeat the very object for which insertion of Rule 10A has been made by the Legislation. Considering this set of circumstance, the Court is of the opinion not to interfere with such a well reasoned order passed by the competent authority. Hence, the case is found to be devoid of merit.
Page 20 of 32HC-NIC Page 20 of 32 Created On Tue Feb 20 23:58:09 IST 2018 C/SCA/20530/2017 ORDER
9. In the context of aforesaid conclusion which has been arrived at by this Court, the Court is mindful of the peripheral jurisdiction of this Court under Articles 226 and 27 of the Constitution of India and looking to well defined proposition of law laid down by the Apex Court, the Court is not inclined to exercise writ jurisdiction to dislodge the finding arrived at by the authority.
10. The parameters which are prescribed effectively by the Apex Court on exercise of jurisdiction under Articles 226 and 227 of the Constitution of India in case of Sameer Suresh Gupta TR PA Holder V/s. Rahul Kumar Agarwal, reported in 2013 Law Suit (SC) 651, since relevant, deserve to be quoted hereinafter :
"6. In our view, the impugned order is liable to be set aside because while deciding the writ petition filed by the respondent the learned Single Judge ignored the limitations of the High Court's jurisdiction under Article 227 of the Constitution. The parameters for exercise of power by the High Court under that Article were considered by the two Judge Bench of this Court in Surya Dev Rai vs. Ram Chander Rai and others (2003) 6 SCC 675. After considering various facets of the issue,the two Judge Bench culled out the following principles:
"(1) Amendment by Act No.46 of 1999 with Page 21 of 32 HC-NIC Page 21 of 32 Created On Tue Feb 20 23:58:09 IST 2018 C/SCA/20530/2017 ORDER effect from 01072002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.
(2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.
(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e. when a subordinate court is found to have acted (i) without jurisdiction by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
(4) Supervisory jurisdiction under
Article 227 of the Constitution is
exercised for keeping the subordinate
courts within the bounds of their
jurisdiction. When the subordinate Court
has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.Page 22 of 32
HC-NIC Page 22 of 32 Created On Tue Feb 20 23:58:09 IST 2018 C/SCA/20530/2017 ORDER (5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and
(ii) a grave injustice or gross failure of justice has occasioned thereby.
(6) A patent error is an error which is selfevident, i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent.
(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where Page 23 of 32 HC-NIC Page 23 of 32 Created On Tue Feb 20 23:58:09 IST 2018 C/SCA/20530/2017 ORDER such refusal itself would result in prolonging of the lis.
(8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case."
7. The same question was considered by another Bench in Shalini Shyam Shetty and another vs. Rajendra Shankar Patil (2010) 8 SCC 329, and it was held:
"(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by the High Court under these two articles is also different.Page 24 of 32
HC-NIC Page 24 of 32 Created On Tue Feb 20 23:58:09 IST 2018 C/SCA/20530/2017 ORDER
(b) In any event, a petition under Article 227 cannot be called a writ petition.
The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of superintendence on the High Courts under Article 227 and have been discussed above.
(c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.
(d) The parameters of interference by High Courts in exercise of their power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh and the principles in Waryam Singh have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh, followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and courts subordinate to it, "within the bounds of their authority".
(f) In order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.
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(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.
(i) The High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in L. Chandra Kumar v. Union of India and therefore abridgment by a constitutional amendment is also very doubtful.
(j) It may be true that a statutory
amendment of a rather cognate provision,
like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.
(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.
(l) On a proper appreciation of the wide and Page 26 of 32 HC-NIC Page 26 of 32 Created On Tue Feb 20 23:58:09 IST 2018 C/SCA/20530/2017 ORDER unfettered power of the High Court under Article 227, it transpires that the main object of this article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.
(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court.
(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance.
Therefore, the power under Article 227
may be unfettered but its exercise is
subject to high degree of
judicial discipline pointed out above.
(o) An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality."
11. In yet another decision delivered by the Apex Court in case of State of Uttar Pradesh v. Lakshmi Sugar and Oil Mills Ltd. & Anr., reported in (2013) 10 SCC 509, the Apex Court has, in Page 27 of 32 HC-NIC Page 27 of 32 Created On Tue Feb 20 23:58:09 IST 2018 C/SCA/20530/2017 ORDER categorical terms, observed that in exercise of jurisdiction under Article 226 of the Constitution of India, the High Court is not sitting in an appeal over the decision and finding of the statutory authorities and hence, it is not open to substitute its own finding by revising and re-appreciating the evidence. Considering this limited peripheral jurisdiction which has been well defined by the Apex Court, this Court is of the opinion that on the present case on hand, the competent authority has analyzed the stand taken by both the sides and arrived at a specific finding with regard to disqualification of the petitioners and hence, this Court is not inclined to exercise extraordinary jurisdiction to substitute the finding arrived at.
12. In the context of aforesaid situation which is prevailing on record, now to deal with the decisions which have been cited by the respective sides, more particularly learned advocate appearing for the petitioners. The first decision which has been relied upon is in case of Sadashiv V. Patil (supra) in which the background of fact appears to be quite distinct from the present case on hand. In the facts of the said case, the Apex Court was dealing with an issue of defection in which there was an absence of proof of Page 28 of 32 HC-NIC Page 28 of 32 Created On Tue Feb 20 23:58:09 IST 2018 C/SCA/20530/2017 ORDER producing the resolution of the aghadi with the signatories of the whip had been authorized aghadi to issue the whip and in which the Apex Court found that there was no violation of whip. In fact, a critical examination of facts of the said case and comparing the same with the case on hand would lead to a situation where some discussion made in Para.9 of the said decision in which it is reflecting that condoning such defiance is not permissible if such finding or abstention is not proceeded by prior permission and is relatable to election of another office, authority or committee under the relevant municipal law. Now, here it seems that prior to the commencement of the meeting, the whip was read over and in defiance of it, the petitioners have acted contrary to it and have not made any attempt to ensure to inquire whether any whip / mandate is issued or not. The question of validity of whip was already discussed at length by the authority concerned in which it is even appearing to this Court that communication dated 21.9.2017 is clearly investing power with the President of the District Congress Committee and in furtherance of such, the mandate by President is issued on 27.7.2016. Now, this being the position, the decision which is pressed into service appears to have no applicability as a straitjacket formula as has been suggested by Page 29 of 32 HC-NIC Page 29 of 32 Created On Tue Feb 20 23:58:09 IST 2018 C/SCA/20530/2017 ORDER learned advocate for the petitioners.
13. Yet another decision which has been pressed into service is a decision delivered by the Division Bench of this Court in case of Devabhai Parbatbhai Avadia (supra), in which also a close reading of the said decision has, on the contrary, clarified that there cannot be an uniform formula to undertake the process while determining the issue. In fact, said decision in which the Division Bench of this Court was dealing with a situation where a request was made to cross-examine the applicant was not acceded to and a contention was generated as to whether the applicant, upon whose instance the disqualification proceedings have been initiated, should be permitted to be cross-examined and whether the member concerned should be permitted to lead his oral evidence, held that it must depend on the facts of each case and no rigid or uniform formula which would apply in every case, can be laid down. Now, when the Division Bench of this Court has amply made it clear with regard to that question which was also left open / determined on the basis of factual background, the case on hand hardly has raised any issue with regard to this. The material which is attached with the petition and the proceedings which have been carried out before the authority indicates Page 30 of 32 HC-NIC Page 30 of 32 Created On Tue Feb 20 23:58:09 IST 2018 C/SCA/20530/2017 ORDER that no such issue of examination has been raised by the petitioners nor such question cropped up. As a result of this, by applying the principle laid down by the Division Bench of this Court, the Court cannot ignore the object of Rule 10A of the Rules. As a result of this, the Court found that the said ratio, with respect, has no role to play in a routine manner.
14. It is settled position of law that while applying the principle of precedent, the Court has to evaluate the factual background since one additional issue or a change of fact would make a world of difference in applying such principle as a part of precedent. The Court also found in the present background of fact that such reliance which has been pressed by learned advocate for the petitioners on the decisions which are governed in altogether different set of factual background. Hence, the same may not have absolute bearing upon the present case on hand. Hence, there appears to be no force in the submissions made by learned advocate for the petitioners in applying such decisions.
15. As against this, the decisions which have been relied upon by Mr.P.S.Champaneri, learned advocate, since the Court is of the opinion that no case is made out by the petitioners to brand Page 31 of 32 HC-NIC Page 31 of 32 Created On Tue Feb 20 23:58:09 IST 2018 C/SCA/20530/2017 ORDER the order in question as perverse or illegal in any manner, the detailed discussion has not undertaken of each of the decisions which have been pressed into service.
16. In view of the aforesaid discussion and analysis of material on record, the Court found no case in favour of the petitioners and the petition being devoid of any merits, deserves to be dismissed and the same is dismissed with no order as to costs. Notice is discharged. Interim relief, if any, granted earlier stands vacated.
(A.J. SHASTRI, J.) vipul Page 32 of 32 HC-NIC Page 32 of 32 Created On Tue Feb 20 23:58:09 IST 2018