Bhanubhai Labhubhai Mehta vs State Of Gujarat & 2 on 8 July, 2013

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Gujarat High Court

Bhanubhai Labhubhai Mehta vs State Of Gujarat & 2 on 8 July, 2013

Learned Government Pleader Mr. Prakash Jani with learned Assistant Government Pleader Mr. Neeraj Ashar for respondent Nos.1 and 2 and learned advocate Mr. Navin Pahwa for respondent No.3 waive service of Rule.

2. With the consent of the learned advocates for the parties, the matter is taken up for final hearing.

3. What is called in question in this petition filed under Article 226 of the Constitution of India is the order dated 18.6.2013 passed by the Commissioner (Co-operation) and Registrar, Co-operative Societies, Gujarat State, whereby nomination of the petitioners as Government representative on the Managing Committee of respondent No.3 Society made under Section 80(2) of the Gujarat Co-operative Societies Act, 1961 (hereinafter referred to as the Act for short) is cancelled.

4. The case of the petitioners is that the petitioners are agriculturists and active social workers of Rajkot District and connected with co-operative movements. Petitioner No.1 is Director of Rajkot Jilla Kharid Vechan Sangh, Rajkot District Co-operative Union, Rajkot District Co-operative Press, Rajkot Lodhika Taluka Sahakari Kharid Vechan Sangh, etc. Petitioner No.2 is Director of Gujarat State Grain Growers Federation, Ahmedabad, Director of Rajkot Lodhika Co-operative Processing and Marketing Sangh, Shri Khokhaddas Seva Sahkari Mandali Limited, Shri Khokhaddas Dudh Utpadak Sahkari Mandali Ltd. and Vice President of Rajkot Taluka Panchayat. Petitioner No.3 is Director of Agricultural Produce Market Committee, Rajkot, Member of Rajiot District Panchayat, Member of Paddhari Taluka Kharid Vechan Sangh, President of Nyara Seva Sahkari Mandali Ltd and other societies. It is their case that though they have been nominated as Government representatives by order dated 4.3.2013 till completion of the term of the elected body of respondent No.3 Society, their appointment as nominated members is cancelled under the political pressure by the impugned order only within a span of three months. It is averred that the impugned order is passed in colourable exercise of the powers and without assigning any reasons. It is further averred that since the petitioners are nominated under Section 80(2) of the Act till expiry of the term of the elected body, such nominations cannot be recalled, revoked or cancelled before expiry of the said term in the name of the public interest.

5. The petition is opposed by filing reply affidavit dated 2.7.2013 on behalf of respondent No.1 as also by respondent No3 by filing reply dated 25.6.2013.

6. I have heard learned advocates for the parties.

7. Learned advocate Mr. B.T.Rao appearing for the petitioners submitted that the petitioners were nominated vide order dated 4.3.2013 to advance ideology of the Co-operative movements and in public interest under the provision of Section 80(2) of the Act. Since the petitioners are nominated for specified tenure, respondent No.2 was not justified in cancelling the nominations of the petitioners before expiry of the term of the Committee of the Society. Mr. Rao submitted that since the petitioners were not nominated under sub-section (1) of Section 80 of the Act, the petitioners are to hold their office till the end of the term provided in the order appointing them as Government representatives on the Managing Committee of respondent No.3. Mr. Rao submitted that such appointment cannot be cancelled by invoking the doctrine of Pleasure of the State Government. Mr. Rao submitted that though the impugned order is passed cancelling the nominations of the petitioners in the name of the public interest, no material or reasons are either placed or disclosed before the Court to point out what was the public interest considered for cancellation of the nominations of the petitioners. Mr. Rao submitted that since the petitioners were not nominated at the pleasure of the State Government but same having been made in public interest, such nominations could not be cancelled at the whims of the State Government and the petitioners are thus entitled to hold the office as Members of the Committee till expiry of the term of the Managing Committee of respondent No.3 Society.

7.1. Learned advocate Mr. Rao submitted that the phrase So far as may be used in sub-section (2) of Section 80 of the Act makes it very clear that the provision of sub-section (1) of Section 80 cannot be applied in its entirety so as to read the nomination of the Government representatives under sub-section (2) at the pleasure of the State Government. Mr. Rao submitted that once the petitioners were nominated under sub-section (2) of Section 80 of the Act in public interest, unless the respondent State authorities come out with reasons for not continuing the nominations of the petitioners in public interest, the nominations of the petitioners as Government representatives could not be canncelled by applying Pleasure doctrine. Mr. Rao submitted that when the order appointing the petitioners as Government representatives was based on well considered public interest, cancellation of such nomination at the political sweet will in the name of Pleasure doctrine is not permissible.

7.2. In support of his submission, learned advocate Mr. Rao has relied on the following decisions:-

(1) In the case of B.P. Singhal Vs. Union of India and Another reported in (2010)6 SCC 331;

(2) In the case of Harshadrai Shantilal Shah and Another Vs. State of Gujarat and others reported in 1996(1) GLH 806;

8. As against the above arguments, learned Government Pleader Mr. Prakash Jani appearing with learned Assistant Government Pleader Mr. Neeraj Ashar for respondent Nos.1 and 2 submitted that though the petitioners were nominated under section 80(2) of the Act, such being nominations at the pleasure of the State Government, the same can be cancelled at any point of time on withdrawal of the pleasure by the State Government. Mr. Jani submitted that sub-section (2) of Section 80 of the Act clearly provides that the provision of sub-section (1) shall apply so far as may be, to the nomination of Government representatives and therefore, such nomination shall be governed by the provisions of Section 80(1) of the Act. Mr. Jani submitted that simply because the order nominating the petitioners on the Committee of respondent No.3 provides that tenure of their nomination shall automatically come to an end on expiry of the term of the Managing Committee, is no ground to take away the power of the State Government to determine the tenure of the petitioners earlier than the term of the Managing Committee on withdrawal of its pleasure.

8.1. Learned Government Pleader Mr. Jani further submitted that reliance placed by learned advocate for the petitioners on the decision in the case of Harshadrai (supra) of this Court is of no help to the case of the petitioners as in the said case, the Court was considering the issue about Pleasure doctrine in the context of Section 16 of the Saurashtra University Act, which clearly provides for nomination of member in the syndicate for fixed term of 5 years and not at the pleasure of the Government. Mr. Jani submitted that the legitimate expectation of the petitioners to hold the office till the end of the term of the elected body is misconceived as the nomination of the petitioners was for all purposes at the pleasure of the Government. Mr. Jani submitted that the decision of the Hon ble Supreme Court in the case of B.P. Singhal Vs. Union of India and Another reported in (2010)6 SCC 331 has got no application to the facts of the case as in the said case, the Court was concerned about withdrawal of the pleasure of the President of India about the constitutional appointment of the Governor.

8.2. Learned Government Pleader Mr. Jani relied on the decision of the Hon ble Supreme Court in the case of Om Narain Agarwal and others Vs. Nagar Palika, Shahjahanpur and others reported in (1993)2 SCC 242, the also decision of this Court in the case of Jagdishbhai Mafatlal Patel Vs. State of Gujarat reported in 2002(2) GLH 235 affirmed in Letters Patent Appeal by the Hon ble Division Bench of this Court, and the decision of this Court in the case of Unjha Agricultural Produce Market Committee Vs. State of Gujarat reported in 1999(1) GLR 406, which dealt with the case under the provisions of the APMC Act to point out that this Court has held that the State Government is empowered to remove the nominated members before completion of their term by applying Pleasure doctrine.

9. Learned advocate Mr. Navin Pahwa appearing for respondent No.3 while adopting the arguments of learned Government Pleader Mr. Prakash Jani, submitted that cancellation of the nominations of the petitioners could not be challenged by taking the help of Articles 14 and 15 of the Constitution of India neither such nomination on the Committee of the Society can be said to be employment not can be claimed as a matter of right. Mr. Pahwa submitted that the judgment in the case of B.P. Singhal (supra) is distinguishable in the facts of the case inasmuch as the Hon ble Supreme Court in the said case was concerned about the appointment of Governor on the constitutional post as per Article 156 & 159 of the Constitution of India. In the said context, the Hon ble Supreme Court examined the question as to whether such appointment of Governor could be withdrawn or cancelled by applying Pleasure doctrine without disclosing the reasons/ causes for cancellation of appointment. Mr. Pahwa submitted that since the petitioners are not entitled as a matter of right to represent as Government nominee on the managing committee of the society, by cancellation of the nomination, none of their fundamental right is breached and therefore, the petitioners are not entitled to maintain the petition under Article 226 of the Constitution of India before this Court. Mr. Pahwa submitted that even if the petitioners were nominated under sub-section (2) of Section 80 of the Act, their nomination still remained at the pleasure of the State government and once the State Government decides to withdraw its pleasure to continue such nomination of the petitioners, the petitioners cannot be permitted to hold office as Government representatives on the managing committee of the society. He thus urged to dismiss the petition.

9.1.

Learned advocate Mr.Pahwa has relied on following authorities:-

(1) In the case of A. Sanjeevi Naidu Etc. Vs. State of Madras and Another reported in AIR 1970 SC 1102;

(2) In the case of Bhut Nath Mate Vs. The State of West Bengal reported in AIR 1974 SC 806;

(3) In the case of Samsher Singh Vs. State of Punjab and Another reported in AIR 1974 SC 2192, (4) In the case of Amreli District Co-operative Sale & Purchase Union Ltd. And others Vs. State of Gujarat reported in 1984(2) GLR 1244 ;

(5) In the case of Amarjeet Kaur Vs. Union of India and others reported in 1991 Delhi Law Times 262 (SC), (6) In the case of Ghanshyam Singh Vs. Union of India and others reported in AIR 1991 Delhi 59;

(7) Harisinh Pratapsinh Chavda Vs. Chimanbhai J. Patel and, Chief Minister & others reported in 1991(1) GLH 263;

(8) In the case of Om Narain Agarwal and others Vs. Nagar Palika Shahjahanpur and others reported in (1993)2 SCC 242;

(9) In the case of Unjha Agricultural Produce Market Committee and others Vs. State of Gujarat and others reported in 1999(1) GLR 406;

(10) In the case of Dattaji Chirandas Vs. State of Gujarat and Another reported in 1999(3) GLR 2189;

(11) In the case of Krishna, S/o. Bulaji Borate Vs. State of Maharashtra and others reported in (2001)2 SCC 441;

(12) In the case of Jagdishbhai Mafatlal Patel Vs. State of Gujarat reported in 2002(2) GLR 235;

10. Having heard learned advocates for the parties and having perused the order nominating the petitioners as Government representatives on the managing committee of respondent No.3 Sangh as well as the impugned order cancelling such nomination, it appears that the Government in the public interest thought it fit to nominate the petitioners as its representatives on the managing committee of the respondent No.3 Sangh. In the order dated 4.3.2013 at Annexure-A passed by respondent No.2, involvement of public interest in respondent No.3 Sangh is stated. The order clearly records that as on 31.3.2012, respondent No.3-Sangh sold milk and its products to the tune of Rs.3,83,47,59,943.61 ps. It further records the total strength of the members at 490, the share capital of Rs.3,91,64,500.00, the details about reserve fund, dividend, bonus, etc. shown in the annual balance-sheet of the respondent No.3 Sangh. All such matters directly connected with the members of the Sangh are taken as involvement of public interest in the respondent No.3 Sangh. The said order also records many other things to justify appointment of the petitioners as Government representatives in the public interest on the managing committee of respondent No.3 Sangh as per the guidelines of Government Resolution dated 8.4.2004.

11. The order nominating the petitioners as Government representatives was passed under sub-section (2) of Section 80 of the Act. The said order provided that the term of the petitioners as Government representatives shall automatically come to an end on expiry of the term of the managing committee of respondent No.3 Sangh. Thus, the term of the petitioners as Government representatives under the said order was made co-terminus with the managing committee of respondent No.3 Sangh.

12. The above order nominating the petitioners as Government representatives on the Managing Committee of respondent No.3 Sangh passed in public interest is now cancelled within a short span of three months in the name of administrative reasons and public interest by the impugned order dated 18.6.2013. In the impugned order, no reasons, no facts, no grounds have been stated in support of the decision cancelling the nomination of the petitioners. In what manner and how the public interest was adversely affected by continuing the petitioners as Government representatives on the Managing Committee of respondent No.3 Sangh have not been stated.

13. In the affidavit-in-reply filed by Shri V.B. Thakor, Under Secretary of Agricultural and Co-operation Department on behalf of respondent No.1, nowhere it is stated what public interest was considered to cancel the nomination of the petitioners as Government representatives. It is simply stated that the author of the impugned order was communicated the decision to cancel the appointment of the petitioners.

14. This Court had called for the original file, wherefrom it found one letter dated 24.3.2013 addressed by M.L.A. recommending the names of three persons to be nominated as Government representatives. This Court also found that the Hon ble Minister had asked the concerned department to place the file concerning the appointment of Government representatives before him and soon thereafter the impugned order came to be passed. Learned Government Pleader could not draw the attention of the Court to any material providing reasons for cancelling the appointment of the petitioners as Government representatives in public interest. Thus, it appears that the political interest has overpowered the public interest for cancelling the appointment of the petitioners as Government nominees on the Managing Committee of respondent No.3 Sangh, which was made on well considered reasons for appointment of the petitioners in public interest.

15. However, the stand of the respondents is that since the petitioners were nominated as Government representatives on the Managing Committee of respondent No.3 Sangh at the pleasure of the State Government, there is no bar in withdrawing such pleasure and in cancelling the nomination of the petitioners at any time before expiry of their term. It is their contention that though the petitioners were nominated under sub-section (2) of Section 80 of the Act, still their nomination stood governed by the provisions of sub-section (1) of Section 80 of the Act, which specifically provides that the members nominated shall hold the office during the pleasure of the State Government and therefore, even before expiry of the specified term of such nomination, the Government is entitled to discontinue such nomination by applying Pleasure doctrine.

16. At this stage, the decisions cited by learned advocates for the parties on the Pleasure doctrine need to be considered.

16.1. In the case of Ghanshyam Singh (supra), cancellation of nomination as Director on the Board of Indian Farmers Fertilizers Co-operative Society was challenged. Delhi High Court in the said case held and observed in para 35 as under:-

35. We are of the view that the contention of Mr. Thakur that the nomination of the petitioners as Director be construed as an employment under the Government although attractive, is to be rejected. Even if the nomination is to be equated with the word appointment , it cannot be held that it was an employment under the Government.

The scheme of the Act and the Rules/Bye-laws negatives the contention. The case law cited by Mr. Thakur on this aspect has no application. We agree with the counsel for the respondents that the exercise of power nominating respondent No.3 in place of the petitioner herein was to be made on subjective satisfaction only. As we have noticed, it is not the case of the petitioner that respondent No.4 had any personal ill-will or in spite against him. The order of 30th March, 1988 whereby the petitioner was appointed and the second order dated the 19th December, 1989 whereby respondent No.3 was appointed in his place, were passed in exercise of power which is not open to judicial review excepting of course for mala fides, which as we have held is absent in this case.

In the above case, the nomination by Government of India was under Section 41 of the Multi-State Co-operative Societies Act which, unlike the provisions of Section 80(2) of the Act made in exercise of right as shareholder or guarantor and the nominee was to hold the office during the pleasure of the Government.

16.2. In the case of Harisinh Pratapsinh (supra), challenge was made against the action of the respondent State authorities in asking for resignation of the Chairman of the Gujarat Water Supply and Sewerage Board, Gandhinagar. The said appointment was made under the provisions of Section 4(1) of the Gujarat Water Supply and Sewerage Board Act, 1988. In the said case, the Court held and observed that appointment of the Chairman was in the political nature and when was made after general election of the Gujarat Legislative Assembly, a coalition Government of BJP and Janata Dal came to be formed in the State of Gujarat. When the said situation was changed, BJP withdrew its support. It was open to the State Government to exercise the powers under the Act and such action could not be said to be contrary to law. The Court drew the distinction between public officer and the civil post and held that the post of Chairman in the said case was not a civil post and therefore, term curtailed of the Chairman by the impugned action was held to be within the discretion of the Government.

16.3. Much reliance is placed by learned Government Pleader Mr. Prakash Jani as also learned advocate Mr. Navin Pahwa on the decision in the case of Om Narain (supra). The Hon ble Supreme Court in the said case had an occasion to consider the question about the cancellation of nomination of the members on Municipal Board under the provisions of the U.P. Municipalities Act. In the said case, under Section 9 of the Act, nomination of the woman member was provided on the Board of the Municipality and then further change of such nomination by notification of the Government was made and it was then provided by insertion of proviso to have two women members as nominees of the Government on the Municipal Board. However, by last proviso in the said Section, it was provided that member nominated under the said Section, whether before or after the date prescribed therein, shall hold the office during the pleasure of the State Government but not beyond the term of the Board. In the context of that proviso, the Hon ble Supreme Court has held and observed in paragraph Nos.11,12 and 13 as under:-

11. In our view, such provision neither offends any Article of the Constitution nor the same is against any public policy or democratic norms enshrined in the Constitution. There is also no question of any violation of principles of natural justice in not affording any opportunity to the nominated members before their removal nor the removal under the pleasure doctrine contained in the fourth proviso to Section 9 of the Act puts any stigma on the performance or character of the nominated members. It is done purely on political considerations. In Dr. Rama Mishra's case, the High Court wrongly held that the pleasure doctrine incorporated under the fourth proviso to Section 9 of the Act was violative of the fundamental right of equality as enshrined in Article 14 and Article 15 (3) of the Constitution. We are unable to agree with the aforesaid reasoning of the High Court. Clause (3) of Article 15 is itself an exception to Article 14 and clauses (1) and (2) of Article 15 of the Constitution. Under Article 14, a duty is enjoined on the State not to deny any person equality before the law or the equal protection of the laws within the territory of India. Article 15 (1) provides that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Article 15 (2) provides that no citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them .be subject to any disability, liability, restriction or condition with regard to (a) access to shops, public restaurants, hotels and places of public entertainments; or (b) the use of wells, tanks, bathing ghats, roads and place of public resort maintained wholly or partly out of State funds or dedicated to the 52 use of the general public.

Thereafter Article 15 (3) provides that nothing in this Article shall prevent the State from making any special provision for women and children. This means that in case any special provision is made for women, the same would not be violative on the ground of sex which is prohibited under clauses (1) and (2) of Article 15 of the Constitution. Thus, the special provision contained for nominating one or two women members as the case may be provided in Section 9 of the Act would be protected from challenge under clause (3) of Article 15 of the Constitution. It may also be worthwhile to note that the provision of pleasure doctrine incorporated by adding proviso four does not, in any manner, take away the right of representation of women members in the Board, but it only permits the State Government to keep the nominated women members of its own choice. Them High Court in Dr. Rama Mishra's case took a wrong view in holding that the fourth proviso to Section 9 of the Act was violative of Article 15 (3) of the Constitution under an erroneous impression that this provision in any manner curtailed the representation of women members in the Board. We are not impressed with the reasoning given by the High Court that the fourth proviso to Section 9 of the Act in any manner deprived the fundamental right of equality as enshrined in Article 14 of the Constitution. It is well established that the right of equality enshrined under Article 14 of the Constitution applies to equals and not to enequals. The nominated members of the Board fall in a different class and cannot claim equality with the elected members. We are also not impressed with the argument that there would be a constant fear of removal at the will of the State Government and is bound to demoralise the nominated members in the discharge of their duties as a member in the Board. We do not find any justification for drawing such an inference, inasmuch as, such contingency usually arises only with the change of ruling party in the Government. Even in the case of highest functionaries in the Government like the Governors, the Ministers, the Attorney General and the Advocate General discharge their duties efficiently, though removable at the pleasure of the competent authority under the law, and it cannot be said that they are bound to demoralise or remain under a constant fear of removal and as such do not discharge their functions in a proper manner during the period they remain in the office.

13. Thus, in the circumstances mentioned above, we are clearly of the view that the decision in Dr. Rama Mishra's case does not lay down. the .correct law and is overruled and the view taken by the High Court in Prem Kumar Balmiki's case (supra) is held to be correct. We do not consider it necessary to dwell upon other arguments made before us or made and dealt with by the High Court, as the above appeals can be disposed of on the point already dealt and decided by us. Thus, as a result of the view taken by us, we hold that Smt. Shyama Devi and Smt. Baijanti Devi, the two women. Members had been rightly nominated in place of Smt. Abida and Smt. Hazra Khatoon and were entitled to take part in the meeting held on 12.8.1991 for considering the motion of no- confidence against Mohd. Iqbal, the President of Nagar Palika Shahjahanpur. Further, the motion of no-confidence being supported by 20 members which admittedly constituted a majority of the total strength of the members of the Board being 37, the no-confidence motion has been rightly carried out and as a result of which Mohd. Iqbal was not entitled to continue as President of the Board. Similarly, Smt. Abida and Smt. Hazra Khatoon having been rightly removed as nominated members, they are no longer entitled to continue as nominated members of the Municipal Board, Shahjahanpur and in their place Smt. Shyama Devi and Smt. Baijanti Devi shall be entitled to continue as nominated members of the Board.

16.4. In the case of Unjha Agricultural Produce Market Committee (supra), relied on by learned Government Pleader Mr. Jani and learned advocate Mr. Pahwa, the Court examined the question about removal of nominated members from the Market Committee in the context of the provisions of the Gujarat Agricultural Produce Markets Act, especially Section 54 of the said Act. In the said case, this Court summarized the preposition of law in the context of Section 54 of the Act in para 37, which is reproduced hereinbelow and further held and observed in para 38 as under:-

37.

TO SUMMARISE what is discussed hereinabove, following broad propositions in the context of sec. 54, more particularly sec. 54 (3) of the Markets Act emerge :

I. Section 54 of the Markets Act clearly appears to be a self contained provision which operates upon the markets or market areas undergoing change as contemplated by sec. 52 of the Markets Act.

II.

Section 54 does not appear to be controlled, qualified or modified by the provisions of sec. 14 or sec. 46 of the Markets Act.

III.

Section 54 of the Markets Act does confer power upon the Government to appoint its nominees and within the outer limit set out in the provision such power can be exercised from time to time since there is no inner limit or minimum limit which would circumscribe and negative such a power.

IV.

Accordingly u/S. 54, more particularly sec. 54 (3), of the Markets Act the power of the Government to appoint nominees includes power to remove or replace such nominees by remaining within the outer limit prescribed as aforesaid. Such power will not get exhausted on first nomination and can be exercised from time to time and for that purpose sec. 54 of the Markets Act shall have to be read with sec. 14 and/or sec. 16 of the Bombay General Clauses Act.

V. All the above three indicia proposed by this Court as referred to hereinabove clearly appear to be visible in the provision of sec. 54, more particularly sec. 54 (3) of the Markets Act.

VI.

When power u/S. 54 (3) of the Markets Act is exercised again by way of replacement of the nominees or any of them, no stigma attaches on the outgoing nominees although there might be occasion or reason other than political considerations for such replacement.

38.

Thus, it has to be found that pleasure doctrine is clearly implied in the provision of section 54, more particularly sec. 54(3) of the Markets Act. First point proposed by Mr. Jhaveri will have to be answered accordingly holding that upon constituting two market committees by order dated 31/1/1997 the power conferred upon the State Government u/S. 54 of the Markets Act would not and did not stand exhausted.

16.5. In the case of Dattaji Chirandas (supra), this Court examined the question of removal of the Chairman of the Government Companies/ Corporation by invoking the pleasure doctrine and this Court in the said case has held and observed in para 34,35,36,38 and 39 as under:-

34.

In view of aforesaid clear pronouncement of law made by the Apex Court, it is clear that the pleasure doctrine and applicability there of in the matter of appointment and removal of persons nominated to high public offices cannot be said to arbitrary, unreasonable or unconstitutional in any manner. If such appointments are made initially by nomination on political considerations, there can be no justification in resisting termination of such appointments on political considerations. Such nominees appointed on political considerations do not have the will or authority of the people of the State unlike those elected by the people of the State.

35. It is true that in the aforesaid case before the Supreme Court the fourth proviso to Section 9 incorporated the pleasure doctrine in express terms and the learned counsel for the petitioners have, therefore, argued with vehemence that if the stuatue itself does not provide, in express terms, for pleasure doctrine in the matter of removal of chairman, the doctrine cannot be invoked at all. This Court does not accept the aforesaid contention and holds that a statute can provide for pleasure doctrine for removal of chairman and holders of such high offices by necessary implication, through the following indicia :-

(i) If the appointment to the office of Chairman or such other high offices in a public Corporation/Board is to be made by the State Government by nomination and the appointment is left to the subjective satisfaction of the Government, the Court would be inclined to read the pleasure doctrine into the provisions of the statute not merely for the pure appointment, but also for the purpose of removal. The principle underlying Section 16 of the Bombay General Clauses Act, 1904 and Section 16 of the General Clauses Act, 1897 in pari material would apply, and, therefore, the power to appoint would include the power to remove, unless a different intention appears in the statute.

(ii) If the statute provides for Governmental control by empowering the Government to give directions or instructions to the concerned Board/Corporation, that would be a strong indication that the holders of the office of Chairman and other high offices were intended to be agents of the Government and, therefore, they can be removed at the pleasure of the Government.

(iii) Absence of a minimum term of office in the statute justifies applicability of the pleasure doctrine in the matter of removal of Chairman and other high public offices. If the statute provides for a minimum term of office, that would militate against applicability of the pleasure doctrine in the matter of removal.

The Court will, therefore, have to apply the aforesaid tests for ascertaining the intention of the Legislature whether or not the statute incorporates the pleasure doctrine for removal of the holders of high offices like Chairmen, Vice-Chairmen and Directors. The rationale for referring to the aforesaid decision of the Apex Court at the outset was only to show that there need not be any judicial resistance to reading into a statute pleasure doctrine in the matter of removal from high offices like Chairmen, Directors, etc. once the first test indicates above is fulfilled. Thereafter the burden of proving that the doctrine would not apply in the facts of a given case would be on the petitioner.

36. As far as the first test is concerned, now it is beyond controversy that the appointment of Chairman, Vice-Chairman/Directors of statutory Corporations/Boards and Government Company is left to the subjective satisfaction of the Government. The expressions "by reason of experience of, and capability in, industry or trade or finance"

or "wide administrative experience in a managerial capacity"

are to be applied in the facts of an individual case as per the complete discretion of the Government. No guidelines or norms are laid down in such enactments for the purpose of furnishing necessary particulars to the Government as to who can be appointed as the Chairman of the Boards/Corporations and, therefore, it can safely be said that the appointment of the Chairman of the Boards/Corporations/Government Companies has been left to the realm of high Governmental discretion as observed by this Court in the case of Harisinh Chavda vs. Chimanbhai Patel, 1191 (1) GLR 667 In view of the aforesaid discussion, it has to be held that the appointment of Chairman/Vice-Chairman or Directors of such statutory Boards/Corporations and Government Companies is not justiciable as such appointments are to be made by nomination at the pleasure of the Government.

38 For reading the pleasure doctrine in the matter of removal of Chairman, the Courts have rightly relied on the provisions of Section 16 of the Bombay General Clauses Act, which is in pari materia with Section 16 of the General Clauses Act, 1889 which is a central legilation. There is no reason why the principle underlying the General Clauses Act cannot be invoked for applying the pleasure doctrine in the matter of removal of Chairman if such a doctrine is applicable at the stage of appointment by nomination. Of course, the aforesaid provisions of the General Clauses Acts provide that the principle embodied therein is liable to be displaced if a different intention appears. That only shows that the burden of proving the contrary would be on the petitioner.

39. As far as the second test is concerned, i.e. where the statute provides for Government control for the funcitions of the Board/Corporation, it is necessary to make a reference to the decision of this Court in the case of Harshadrai Shantilal Shah vs. State of Gujarat (Supra). That was a case under the Saurashtra University Act where the Court clearly found that the nominees to the Senate were not agents of the State Government, but they were to represent the respective interest groups like educationists, social workers, trade unions backward communities, women and similar other classes. This Court held in terms that the idea underlying the provisions of the Act was clearly to see that the purity of the educational stream does not get vitiated and the autonomous education Bodies are left free to follow their course for attaining higher goals in the filed of education. In the said case, this Court also distinguished the decision of this Court in the case of Harisinh Chavda (supra) on the ground that Section 68 of the Gujarat Water Supply and Sewerage Board Act, 1978 provided that in the performance of its duties and discharge of its functions, the Board is required to be guided by the directions on questions of policy as may be given to it, from time to time, by the State Government, and it was further observed that it is in that context that Chairman of such a Board which is required to follow the directives of the State Government is required to hold office only during the pleasure of the State Government. The absence of such a statutory provision in the Saurashtra University Act appears to have been held to be fatal to the case of the Government for invoking the applicability of the pleasure doctrine.

16.6. In the case of Krishna, S/o. Bulaji Borate (supra), the Hon ble Supreme Court was concerned about removal of the nominated trustee from the office of the State Government at any time as provided under Section 6 of the Nagpur Improvement Trust Act, 1936. In the context of the provisions of the said Act, the Hon ble Supreme Court has held and observed in para 9, 10 and 11 as under:-

9. The removal spoken here neither casts any stigma nor lead to any penal consequences. This clearly reveals doctrine of pleasure which is implicit in this section. In any statute expression of the will of the legislature may be explicit or it may be implicit It is open for the courts, while interpreting any provision to spell or read with other provisions of the statute if so intended to read implicitly, in the absence of any explicit words that subserve the intent of the legislature.

10. In the present statute Section 6 refers to the trustee falling under Clause (e), sub-section (1) Section 7 refers to Trustees falling under Clauses (b) and (c) and sub-section (2) refers to Trustees falling under Clause (d) and sub-section (3) refers to Trustees falling in Clause (f) of sub-section (1) of Section 4 and Section 10 refers to cases of removal of trustees by way of stigma, and Section 11 refers to the disability of such removed trustees. In view of this we have no hesitation to hold that removal of Trustee under Section 6 is based on the principle of doctrine of pleasure. We may only strike a note here if the legislature would have used some other words for the word removed for expressing curtailment of the tenure of such trustee in Section 6, this possible confusion would not have arisen.

11. Once doctrine of pleasure is applicable neither the principle of natural justice would step in nor any question of giving opportunity before removal would arise. It is significant when stigma is cast then SUB-SECTION (3) of Section 10 specially provides for giving an opportunity to such incumbent before passing an order of removal under Section 10, while there is no such corresponding sub-section under Section 6. Thus intent of legislature is very clear which reinforces the inference which we have drawn that doctrine of pleasure is implicit under Section 6. In Om Narain Agarwal and Ors.

v. Nagpur Palika, Shahjahanpur and Ors., [1993] 2 SCC 242, this Court was considering the provisions of Section 9 of the U.P. Municipalities Act, 1916 as introduced by U.P. Act 19 Of 1990, which made provision for the nomination of two women members by the State Government, and fourth proviso provides that the nomination of such two members is at the pleasure of the State Government This Court held:

"The initial nomination of the two women members itself depend on the pleasure and subjective satisfaction of the State Government. If such appointments made initially by nomination are based on political considerations, there can be no violation of any provision of the Constitution in case the legislature authorised the State Government to terminate such appointment at its pleasure and to nominate new members in their place. The nominated members do not have the will or authority to any residents of the Municipal Board behind them as may be present in the case of an elected member......But so far as the nominated members are concerned, the legislature in its wisdom has provided that they shall hold office during the pleasure of the Government. It has not been argued from the side of the respondents that the legislature had no such power to legislate the fourth proviso. The attack is based on Articles 14 and 15 of the Constitution.

In our view, such provision neither offends any Article of the Constitution nor the same is against any public policy or democratic norms enshrined in the Constitution. There is also no question of any violation of principles of natural justice in not affording any opportunity to the nominated members before their removal nor the removal under the pleasure doctrine contained in the fourth proviso to Section 9 of the Act puts any stigma on the performance or character of the nominated members. It is done purely on political considerations."

16.7. In the case of Jagdishbhai Mafatlal Patel (supra), this Court had an occasion to examine the question about removal of the Directors of Vadodara District Co-operative Sugarcane Growers Union Ltd. and Sardar Co-operative Sugar Industries Limited in the context of the provisions of the said Act. In the said case, the Directors sought to be removed were nominated as first Board of Directors under the provisions of Section 74C of the Act. The Court in the said case has held and observed in para 17,20,30,33 as under:-

17. To examine the aforesaid contention, it would be advantageous to refer to Section 74C (3) of the Act which reads as under:

"74C.

Provision for conduct of elections committees and officers of certain societies and term of office of members of committees.--

(1)

xxxxx xxxxx xxxxx (2) xxxxx xxxxx xxxxx (3) Notwithstanding anything in the bye-laws of any such society, the committee of management shall be elected by a general body of members of the society and all other committees authorized by or under the bye-laws may be constituted by electing or appointing persons from among the persons who are members of the committee of management, and all such committee shall be sub-committees of the committee of management, and shall be subordinate to it:

Provided that it shall be lawful for the State Government, (a) to nominate its representatives on a Committee of any such society under section 80, or (b) to nominate the first Committee of Management of any such society where the bye-laws of such society so provide.

Provided further that it shall be lawful for any body or authority to nominate its representation on a committee of such society where the bye-laws of such society so provide."

On having look at the aforesaid provisions, it is clear that proviso (b) to sub-section (3) of section 74C of the Act envisages that it shall be lawful for any body or authority to nominate the first committee of management of any such society where the bye-laws of such society so provide.

20. It may also be appreciated that by virtue of Section 80 of the Act, the State Government is empowered to nominate three members of the committee of the management of the society despite what is mentioned in the bye-laws. As per Section 80, where the State Government has subscribed to the share capital of a society, directly or through another society, or has guaranteed the repayment of the principal of and payment of interest on, debentures issued or loans raised by asociety, the State Government shall, notwithstanding anything contained in the bye-laws of such society, have the right to nominate three representatives on the committee of such society in such manner as may be determined by the State Government from time to time. The members so nominated shall hold the office during the pleasure of the State Government, or for such period as may be specified in the order by which they are appointed. Therefore, the way in which Section 80 of the Act refers to the doctrine of pleasure with the State Government in the matter of nominating its representation on the committee of management of the society, even bye-laws 21 (2) (A) and 8 (B) (1) also contain the said doctrine of pleasure to be exercised by respondent No.2, Director of Sugar, who is the Registrar under the Act, with the consent of the State Government. In view of the aforesaid state of affairs also, the doctrine of pleasure can very well be invoked in respect of the nominations and recall of nominations made by the Director of Sugar.

30. The sum and substance of the ratio laid down in the aforesaid case law is that if the Government has a right to nominate it includes right to recall or remove the nominated member. Nomination of new nominees for the existing nominees in the first committee of management within the maximum time limit, would in substance amount to replacement of nominees in the very first committee of management so long as the tenure of the said first committee of management is not over. The said replacement cannot, by any stretch of imagination, be termed or regarded as the constitution of a second committee of management. In fact there is nothing like 2nd committee of management either under the provisions of the Act or even under the provisions of the Companies Act, 1956 since the Board is supposed to be existing in perpetuity till the company and/or the society remains in existence. The expression "first committee of management" occurring under the provisions of proviso (b) to sub-section (3) of Section 74C of the Act as well as under bye-law 21 (2) (A) is used to differentiate between nominated committee of management prior to the election and elected committee of management after election. It is under these circumstances that the committee of management after election is described as "new committee of management" under section 80A (1) of the Act. Even in case of a company under the Companies Act there is nothing like first Board, second Board or third board, inasmuch as the Directors in the Board may come and go but the Board remains in existence in perpetuity, i.e., the Board remains the same and at the best only reconstitution takes place. In view of the aforesaid state of affairs, even if the order under challenge uses the expression like 'new Board' being nominated, the said order cannot get invalidated on that count alone inasmuch as in view of the language of Section 80A of the Act new committee of management comes into play only on election. However, the fact remains that the committee of management which was nominated remained the same despite change in the members and at the best it can be said to have been reconstituted.

33. 33.

It is not out of place to record that respondent No.2 as Director of Sugar for all practical purposes is the Registrar under the provisions of the Act which empowers him to give directions and/or instructions from time to time for exercising various governmental controls in respect of Registrar of Co-operative Societies. At the same time, respondent No.1 State has direct stake and interest in the functioning of the Society, since it has subscribed to the extent of crores of rupees in the share capital of the Society and has also guaranteed the repayment of the term loan to the tune of 60% of the amount of the total project cost which also runs into crores of rupees. In view of this, respondent No.1 State is always interested to see that the functioning of the Society is smooth, harmonious and effective, without there being any discord between the Government and the first committee of the management nominated by the Director of Sugar with the consent of the State Government from time to time. It may also be noted that removal of the petitioners from the first committee of management is neither arbitrary nor malafide when the same is based on the doctrine of pleasure. If the democratically elected Government presumes that for effective implementation of its policies and programmes, a change in the nominees was necessary, the same can be done at its pleasure, whereby it cannot be accused of malafides. On having perusal of the averments made in the petition, no details of malafides are borne out and there is merely a whisper of the same which cannot taken into account by this Court. The Supreme Court in Ghanshyam Singh's case (supra) has held that if no proof, particulars or evidence is furnished in the petition with regard to averments of malafide, it cannot be made a basis for inspection by the Court.

17. In all the cases referred above relied on by learned advocates for the parties, the Courts were not dealing with the nomination in public interest, like the present one, but the nominations therein were in exercise of either statutory right of the State or as shareholder or guarantor. In the present case, the nomination of the petitioners as Government representatives on the managing committee of respondent No.3 Sangh is purely in exercise of the power under Section 80(2) of the Act in public interest.

18. At this stage, it is relevant to refer the provisions of Section 80 of the act, which read as under:-

Sec.

80 of Gujarat Cooperative Societies Act, 1961 :

80.(1)Where the State Government has subscribed to the share capital of a society, directly or through another society or has guaranteed the repayment of the principal of and payment of interest on, debentures issues or loans raised by a society, the State Government shall, notwithstanding anything contained in the bye-laws of such society, have the right to nominate three representatives in the bye-laws of such society; in such manner as may be determined by the State Government from time to time. The members so nominated shall hold office during the pleasure of the State Government, or for such period as may be specified in the order by which they are appointed, and any such member on assuming office shall have all rights, duties, responsibilities and liabilities as if he were a member of the committee duly elected.

Explanation:-

Any nomination of the Registrar or his nominee on the committee of a society under the bye-laws of such society shall not be construed as nomination of the representative on that Committee in exercise of the right of the State Government under this sub-section.

(2) Where the State Government is of the opinion that having regard to the public interest involved in the operation of a society, it is necessary or expedient so to do, it may nominate its representatives on the committee of such society as if the State Government had subscribed to the share capital of the society and the provision of sub-section (1) shall so, far as may be, apply to such nomination.

(3) Notwithstanding anything contained in this Act or the rules or in the bye-laws, there shall be only one nominee of the State Government in the committee of the State Co-operative Bank or the Central Co-operative Banks where the State Government has subscribed to the share capital of such co-operative banks and no such nomination shall be made where the State Government has not subscribed to the share capital of such co-operative banks and no such nomination shall be made on the committee of a primary Agricultural Credit Co-operative Society irrespective of whether the State Government has subscribed to the share capital of a society or not.

19. Section 80 of the Act stood amended twice. In the case of Amreli District Co-operative Sale & Purchase Union Ltd (supra), challenge was made to the amending Act of 1981 and 1982, which included the challenge to sub-section (2) of Section 80 of the Act. While rejecting the said challenge, the Hon ble Division Bench of this Court has observed in para 78 and 79 as under:-

78. Sec.

80, as it originally stood in the principal Act, empowered the Government to nominate its representatives not exceeding three on the Committee of a society to the share capital of which the State Government has directly or indirectly subscribed or has guaranteed the repayment of the principal and interest on debentures issued or loans raised by such society. Two fold amendment has been made in sec. 80; firstly, by empowering the State Government to nominate its representatives notwithstanding anything contained in the Bye-laws of such societies and, secondly, by inserting new sub-sec.(2) empowering the State Government to nominate the representatives on the committee of a society having regard to the public interest involved in the operation of such society it has been found necessary or expedient to do so as if the State Government had subscribed to the share capital of the society. We must reject the challenge to this new provision inserted by sub-sec. (2). The power is an enabling power which can be exercised only if the Government is satisfied that it is necessary or expedient to do so in the public interest. The number of nominees cannot exceed three since it has been specifically provided that the provision of sub-section (1) shall, so far as may be, apply to such nomination. The tenure of such nominated persons shall be as may be specified in the order by which they are appointed and, therefore, if this power is sought to be abused by the State Government, it can be always subject to challenge in the Court of law. It does not curtail the right of association nor the right to carry on business or trade guaranteed under Art. 19(1) (c) and (g) respectively. This provision, therefore, must be sustained.

79. Before we part with the discussion pertaining to sec. 80(2), we must clarify since the petitioners apprehend abuse of this power that the State Government cannot exercise the power conferred by this section by appointing such persons who are disqualified to be members or who have incurred the disqualification as prescribed in the Bye-laws. It is expected that the Government has to exercise such a wide power in a manner which does not infringes or violate the Bye-laws prescribing the qualifications and/or disqualifications for being members of the society in question since otherwise this power would be arbitrary as it can be exercised for appointing those persons who might have been defeated at the elections or who would not have been entitled to be members or to continue as members of a given society in the ordinary course under the Bye-laws such as persons who have committed defaults in the refund of the advances by the Society or who may be occupying offices in the society, or partners in the firm or appropriators of business having conflicting interests with that of the society. It is, therefore, expected of the State Government that it will prescribe a proper guideline in the matter of exercise of this power and see to it that the power is not exercised contrary to such guideline.

20. In the case of (Shree) Bileshwar Khand Udyog & Anr. Vs. State of Gujarat and Ors. reported in 1993(2) GLH 96, the Co-operative Society challenged the action/ proceedings of the State Government under Section 80(2) of the Act. Hon ble Division Bench of this Court has observed in para 6 as under :-

6. Apart from the ruling expressed by the Bench of this Court in the earlier pronouncement; by looking into the implications of Section 80(2) of the Act in the light of the other provisions of the Act, we have no ambiguity in our mind that the application of the process thereunder results in an order which impinges upon the autonomy of the society and this leads to civil consequences. Under Section 80(1), the State Government acquires a right to nominate three representatives on the committee of the society on the footing of its having subscribed to the share capital or extended the guarantee as contemplated therein.

But under Section 80(2), the Society is not placed in such a situation. The State Government is not a subscriber to the shares capital or a present in Section 80(1) not being there, normally is entitled to be governed only by bodies elected, and in that view, it should remain autonomous. But that right to function autonomous is intruded and invaded upon, when the State Government chooses to nominate its representatives when it forms an opinion that it is necessary or expedient to do so, having regard to the public interest involved in the operation of the society. The formation of the opinion and the expression of it, by setting in motion the process under Section 80(2) do have repercussion adverse to the autonomy of the society. Thus, the proceedings do involve civil consequences. Even if we construe the proceedings under Section 80(2) as only administrative they leading to civil consequences, must adhere to the principles of natural justice. The law must now be taken to be well settled that even in administrative proceedings, which involve civil consequences, the doctrine of natural justice must be held to be applicable. The Statute as such need not speak expressly to that effect. The silence of the Statute has no exclusionary effect on the application of the principles of natural justice, when the proceedings prosecuted thereunder result in civil consequences. Time after time, it has been pointed out that the aim of the principles of natural justice is to secure justice or to put it negatively, to prevent miscarriage of justice. These principles do take the place in areas not specifically covered by statute law. When we take note of the above propositions, we are bound to countenance the grievance of the appellants that the impugned proceedings had come to be passed in violation of the principles of natural justice. In this view, we are not able to subscribe our support to the opinion of the learned single Judge on this question.

21. In the case of Gujarat State Marketing Co-op. Federation Ltd. and Another Vs. State of Gujarat and others reported in 2005(1) GLH 144 Hon ble Division Bench while upholding the challenge to the validity of sub-section (2) of Section 80 of the Act has summarized the conclusion in para 10 as under:-

10.

As the upshot of the above discussion, the conclusions as under can be summarised:-

(a) the provisions of sub-section (2) of Section 80 of the Act are constitutionally valid and there is no reason to take a view different from the view taken by this Court in AMRELI DISTRICT CO.OP.

SALE & PURCHASE UNION LTD. [1984 (2) GLR 1244];

(b) the exercise of power conferred upon the State Government under the provisions of Section 80 (2) in a given case is open to challenge and is subject to judicial review;

(c) any order nominating representatives in exercise of the powers under Section 80 (2) of the Act will be liable to be struck down if the order was contrary to law or if relevant factors were not considered or irrelevant factors were considered in making the order or the decision was such that no reasonable person would have taken it;

(d) the nomination of representatives on the committee of a society in exercise of the powers under Section 80 (2) is coextensive with and operates only during the term of the committee on which such nominees are appointed;

(e) the term of office of the representatives nominated under Section 80 (2) shall depend upon, besides the pleasure of the State Government or the terms specified in their appointment orders, the Rules and bye-laws of the society regarding constitution and term of the committee;

(f) the appointment of representatives on the committee of a society by nomination under the provisions of Section 80 (2) has civil consequences, and, therefore, the principles of natural justice are required to be observed while forming the opinion that, having regard to the public interest involved in the operation of the society, it is necessary or expedient to nominate the representatives. For compliance with the principles of natural justice, adequate and meaningful opportunity of hearing has to be given to the society and, as a part thereof, the society has to be informed about the grounds on which the opinion as to involvement of public interest in the operation of the society was based and the necessity or expediency for the nomination had arisen. The guidelines evolved and issued in compliance with the observation in paragraph 79 of the judgment in AMRELI DISTRICT CO.OP. SALE & PURCHASE UNION LTD. (supra) are also required to be followed while exercising the power and the exercise of power has to be consistent with such guidelines; and

(g) the power to nominate under Section 80 (2), by incorporation of the provisions of sub-section(1), means the right to nominate three representatives as if the State Government had subscribed to the share capital of the society;

22. The difference between two kinds of nomination provided in sub-section (1) and sub-section (2) of Section 80 of the Act is that in sub-section (1), limit of number of representatives is provided, whereas it is not so in sub-section (2). Nomination under sub-section (1) is by virtue of the right available to the State Government either as shareholder or guarantor of a Co-operative Society. Whereas, the nomination under sub-section (2) could be only on satisfaction of the Government as regards involvement of the public interest in such nomination on the managing committee of the society.

23. Exercise of powers under sub-section (2) is subject to challenge and open to judicial review on many fold grounds. The term of nomination under sub-section (2) would depend upon, besides pleasure or periods in the order of nomination, the Act or the bye-laws of the society.

24. Though in sub-section (2), it is provided that nomination of the Government representative would be as if the Government had subscribed to the share capital of the society and the provision of sub-section (1) shall, so far as may be, apply to such nomination, the nomination would still remain in public interest and not in exercise of the rights of the State Government as shareholder or guarantor. Therefore, in that context, phrase so far as may be is to be understood and the same could be that while making such nomination in public interest, the rights, duties, responsibilities and liabilities of such Government representatives may be as specified for making their nomination.

25. Nomination of the Government representatives under sub-section (2) of the Section 80 is made on well considered involvement of public interest because it is always subject to challenge and judicial review. In the order dated 4.3.2013 nominating the petitioners as Government representatives, various aspects of involvement of public interest are considered. Therefore, withdrawal/ cancellation of such nomination cannot be on just whims and caprices in the name of the pleasure of the State especially when such nomination is not restricted to any tenure before expiry of the term of the elected body.

26. When any such nomination is made in public interest, withdrawal/ cancellation of the same has to be for good reasons and not for any political consideration. If such nomination made in public interest is permitted to be cancelled, simply by applying pleasure doctrine without disclosing the reasons for cancellation of such nomination in the name of the public interest then the very intent and purpose of legislature to provide for such nomination in public interest gets frustrated. Therefore, even if such nomination is to be cancelled in public interest then also, the concerned authority passing the order of cancellation is under obligation to disclose the reasons for cancelling the nomination.

27. The impugned order records that nomination of the petitioner is cancelled for administrative reasons and in public interest. The Court is not apprised about the reasons for cancelling the nomination in public interest nor such reasons are found stated either in the affidavit-in-reply or in the original file shown to the Court.

28. At this stage, it is required to be noted that the nomination of the Government representative under sub-section (2) of Section 80 of the Act is to be made on the basis of the guidelines prescribed by the State Government as observed by the Hon ble Division Bench of this Court in the case of Gujarat State Marketing Co-op. Federation Ltd.(supra). As could seen from the said decision, such guidelines were framed in 2004 and are in force. Therefore, nomination under sub-section (2) could be only of suitable person on well thought consideration of involvement of public interest on the basis of guidelines and not on the whims of the authority. Anybody not found fit to advance the cause of public interest cannot be appointed.

29. In the case of Bangalore Medical Trust Vs. B.S. Muddappa and others reported in (1991)4 SCC 54, the Hon ble Supreme Court has observed in para 46,47 and 48 as under:-

46. Financial gain by a local authority at the cost of public welfare has never been considered as legitimate purpose even if the objective is laudable. Sadly the law was thrown to winds for a private purpose.

The extract of the Chief Minister's order quoted in the letter of Chairman of the BDA leaves no doubt that the end result having been decided by the highest executive in the State the lower in order of hierarchy only followed with `ifs' and `buts' ending finally with resolution of BDA which was more or less a formality. Between 21st April and 14th July, 1976, that is less than ninety days, the machinery in BDA and Government moved so swiftly that the initiation of the proposal, by the appellant a rich trust with 90,000 dollars in foreign deposits, query on it by the Chief Minister of the State, guidance of way,out by the Chairman, direction on it by the Chief Minister, orders of Govt. resolution by the BDA and allotment were all completed and site for public park stood converted into site for private nursing home without any intimation direct or indirect to those who were being deprived of it. Speedy or quick action in public institutions call for appreciation but our democratic system shuns exercise of individualised discretion in public matters requiring participatory decision by rules and regulations. No on howsoever high can arrogate to himself or assume without any authorisation express or implied in law a discretion to ignore the rules and deviate from rationality by adopting a strained or distorted interpretation as it renders the action ultra vires and bad in law. When the law requires an authority to act or decide, 'if it appears to it necessary" or if he is 'of opinion that a particular act should be done' then it is implicit that it should be done objectively, fairly and reasonably. Decisions affecting public interest or the necessity of doing it in the light of guidance provided by the Act and rules may not require intimation to person affected yet the exercise of discretion is vitiated if the action is bereft of rationality lacks objective and purposive approach. The action or decision must not only be reached reasonably and intelligibly but it must be related to the purpose for which power is exercised. The purpose for which the Act was enacted is spelt out from the Preamble itself which provides for establishment of the Authority for development of the city of Bangalore and areas adjacent thereto. To carry out this purpose the development scheme framed by the Improvement Trust was adopted by the Development Authority. Any alteration in this scheme could have been made as provided in Sub-Section (4) of Section 19 only if it resulted in improvement in any part of the scheme. As stated earlier a private Nursing Home could neither be considered to be an amenity nor it could be considered improvement over necessity like a public park. The exercise of power, therefore, was contrary to the purpose for which it is conferred under the statute.

47. Was the exercise of discretion under Sub-Section (4) of Section 19 in violation or in accordance with the norm provided in law. For proper appreciation the Sub-Section is extracted below:

"(4) If at any time it appears to the Authority that an improvement can be made in any part of the scheme, the Authority may alter the scheme for the said purpose and shall subject to the provisions of sub-section (5) and (6) forthwith proceed to execute the scheme as altered."

This legislative mandate enables the Authority to alter any scheme. Existence of power is thus clearly provided for. What is the nature of this power and the manner of its exercise? It is obviously statutory character. The legislature took care to control the exercise of this power by linking it with improvement in the scheme. What is an improvement or when any change in the scheme can be said to be improvement is a matter of discretion by the authority empowered to exercise the power. In modern State activity discretion with executive and administrative agency is a must for efficient and smooth functioning. But the extent of discretion or constraints on its exercise depends on the rules and regulations under which it is exercised. Sub-Section (4) of Section 19 not only defines the scope and lays down the ambit within which the discretion could be exercised but it envisages further. the manner in which it could be exercised. Therefore, any action or exercise of discretion to alter the scheme must have been backed by substantive rationality flowing from the Section. Public interest or general good or social betterment have no doubt priority over private or individual interest but it must not be a pretext to justify the arbitrary or illegal exercise of power. It must withstand scrutiny of the legislative standard provided by the Statute itself. The authority exercising discretion must not appear to be, impervious to,legislative directions. From the extracts of correspondence between the Chairman and the Chief Minister it is apparent that neither of them cared to look in, the provisions of law. It was left to the learned Advocate General to defend it, as a matter of law, in the High Court. There is no whisper anywhere if it was ever considered, objectively, by any authority that the nursing home would amount to an improvement. Whether the decision would have been correct or not would have given rise to different consideration. But here it was total absence of any effect to do so. Even in the reply filed on behalf of BDA in the High Court which appears more a legal jugglery than statement of facts bristling with factual inaccuracies there is no mention of it. The extent of misleading averments for purpose of creating erroneous impressions on the Court shall be clear from the statement contained in paragraph 1 of the affidavit relevant portion of which is extracted below:

"Respondent No.4 had made an application for grant of land for purpose of constructing a Nursing Home. This application was made also to this Respondent. Considering the fact that the medical facilities available in Bangalore were meagre and were required to be supplemented by charitable medical institutions, this authority was required to ascertain whether a suitable site could be given for the hospital building of the fourth respondent. Upon scrutiny of the Rajmahal Viias Extension, as early as in 1976, the area in question which had been marked as a low level park measuring 13485 sq. yards was found suitable to cater to the medical relief to the needy public. However, since the said area had been marked as a low level park, it was necessary to convert the said low level park as civic amenity site. Furthermore, it is essential that the Government had to approve allotment of the site to the fourth respondent as a civic amenity site. There are proceedings before the first respondent in relation to allotment of site to public institutions. Under the recommendations which has been made, it was decided that plots could be allotted to public institutions subject to certain conditions."

It was this statement which resulted in erroneous finding by the learned single Judge to the effect.

"Therefore, it is clear that though at the time of preparation of the scheme, formation of a park was considered in the interest of the general public, nothing prevents the BDA from taking the view that the construction of a hospital to provide medical facilities to the general public is necessary and therefore, the area earmarked for park should be converted into a civic amenity site is in exercise of this power, the BDA decided to convert the area reserved for park into a civic amenity site so as to enable its disposal in favour of the fourth respondent for construction of a hospital. Though Section 19(4) does not expressly require the taking of the approval of the Government for such alteration, the approval was necessary as the original scheme in which the area was reserved for a park had been approved by the Government. Therefore, the BDA considered appropriate, and in my opinion rightly, to seek the approval of the Government for making such conversion The State Government accorded sanction for the conversion. Therefore, the conversion was in accordance with law".

The averment in the affidavit of the BDA that an application was made before it could not be substantiated. Nor it could be established that the BDA or any of its committee ever took into consideration that medical facilities were meagre in the city of Bangalore. Such misleading statements call for serious condemnation. No further comment is needed except that the public institutions should be cautious and must not give impression of taking sides. It is destructive of fairness. The then Chairman's letter in 1976-extracted above was forthright whereas the stand of BDA in 1983 appears to be crude effort to support the executive action. No record was produced to substantiate' the averments. It was necessary as it was not harmony with the correspondence extracted earlier. The statement by the counsel for the BDA that the records were not traceable was not satisfactory. The executive or the administrative authority must not be oblivious that in a democratic set up the people or community being sovereign the exercise of disceretion must be guided by the inherent philosophy that the exercisor of discretion is accountable for his action. It is to be tested on anvil of rule of law and fairness or justice particularly if competing interest of members of society is involved. Was this adhered to by any of the authority? Unfortunately not.

48. Much was attempted to be made out of exercise of discretion in converting a site reserved for amenity as a civic amenity. Discretion is an effective tool in administration. But wrong notions about it results in iII-conceived consequences. In law it provides an option to the authority concerned to adopt one or the other alternative. But a better, proper and legal exercise of discretion is one where the authority examines the fact, is aware of law and then decides objectively and rationally what serves the interest better. When a Statute either provides guidance or rules or regulations are framed for exercise of discretion then the action should be in accordance with it. Even where Statutes are silent and only power is conferred to act in one or the other manner, the Authority cannot act whimsically or arbitrarily. It should be guided by reasonableness and fairness. The legislature never intends its authorities to abuse the law or use it unfairly. When legislature enacted Sub-section (4) it unequivocally declared its intention of making any alteration in the scheme by the Authority, that is, BDA and not the State Government. It further permitted interference with the scheme sanctioned by it only if appeared to be improvement. The facts, therefore, that were to be found by the Authority were that the conversion of public park into private nursing home would be an improvement in the scheme. Neither the Authority nor the State Government undertook any such exercise. Power of conversion or alteration in scheme was taken for granted. Amenity was defined in Section 2(b) of the Act to include road, street, lighting, drainage, public works and such other conveniences as the Government may, by notification, specify to be an amenity for the purposes of this Act. The Division Bench found that before any other facility could be considered amenity it was necessary for State Government to issue a notification. And since no notification was issued including private nursing home as amenity it could not be deemed to be included in it. That apart the definition indicates that the convenience or facility should have had public characteristic. Even if it is assumed that the definition of amenity being inclusive it should be given a wider meaning so as to include hospital added in clause 2(bb) as a civic amenity with effect from 1984 a private nursing home unlike a hospital run by Govt. or local authority did not satisfy that characteristic which was necessary in the absence of which it could not be held to be amenity or civic amenity. In any case a private nursing home could not be considered to be an improvement in the scheme and, therefore, the power under Section 19(4) could not have been exercised.

In the case of Noida Entrepreneurs Association Vs. Noida and others reported in (2011)6 SCC 508, the Hon ble Supreme Court has observed in para 38 and 41 as under:-

38. The State or the public authority which holds the property for the public or which has been assigned the duty of grant of largesse etc., acts as a trustee and, therefore, has to act fairly and reasonably. Every holder of a public office by virtue of which he acts on behalf of the State or public body is ultimately accountable to the people in whom the sovereignty vests. As such, all powers so vested in him are meant to be exercised for public good and promoting the public interest.

Every holder of a public office is a trustee.

41. Power vested by the State in a Public Authority should be viewed as a trust coupled with duty to be exercised in larger public and social interest. Power is to be exercised strictly adhering to the statutory provisions and fact-situation of a case. Public Authorities cannot play fast and loose with the powers vested in them . A decision taken in arbitrary manner contradicts the principle of legitimate expectation. An Authority is under a legal obligation to exercise the power reasonably and in good faith to effectuate the purpose for which power stood conferred. In this context, in good faith means for legitimate reasons . It must be exercised bona fide for the purpose and for none other.

30. The petitioners, as stated above, are holding posts of Director, etc. in different Co-operative Societies and engaged in Co-operative movements and were found suitable to be nominated as Government representatives on the Managing Committee of respondent No.3 Sangh as found discussed in the order of their appointment. There is nothing on record to suggest that they were found to have worked against the public interest.

31. In absence of any reasons found recorded in the file or stated in the reply affidavit filed on behalf of respondent No.1 for cancellation of the nominations of the petitioners, it clearly appears that the nominations of the petitioners have come to be cancelled by the impugned order on political consideration.

32. Learned Government Pleader Mr. Prakash Jani as also learned advocate Mr. Navin Pahwa submitted that since the nomination of the petitioners could be said to be at the pleasure of the State Government, such nomination could be withdrawn/ cancelled at any point of time by applying pleasure doctrine and therefore, the petition at the instance of the petitioners is not maintainable as none of the rights of the petitioners is violated. Such contention cannot be accepted in view of the nature of the nominations of the petitioners and in absence of disclosure of the reasons for cancelling the nomination of the petitioners, which was made on well considered grounds in public interest. Therefore, it is not open to the State Government to apply pleasure doctrine for the purpose of cancellation of the nomination of the petitioners, especially when it is nowhere provided in the order nominating the petitioners that the petitioners shall hold the office during pleasure of the State Government. The order nominating the petitioners has not provided any limited tenure and thus, such nomination of the petitioners is to continue till expiry of the term of the elected body. Since the pleasure doctrine cannot be applied in the facts of the present case, none of the judgments on pleasure doctrine will have any application. The other judgments since on different facts situation have no relevance for the issue involved in the case on hand. In none of the cases cited by learned advocates for the parties, the Courts had an occasion to deal with the nature of nomination with which, this Court is concerned. Therefore, when the petitioners were nominated in public interest on the basis of many factors giving satisfaction to the State Government about the involvement of the public interest and when such nominations of the petitioners are ordered to be cancelled in the name of the public interest, judicial review of such order is available to this Court while exercising the powers under Article 226 of the Constitution of India and in the process of judicial review of this Court, when the Court finds that no reasons exist for cancellation of the nomination of the petitioners, the impugned decision/ order cancelling the nomination of the petitioners in the name of the administrative reason and public interest cannot stand scrutiny of law.

33. In the decision relied on by learned advocate Mr. Rao in the case of B.P. Singhal (supra), Hon ble Supreme Court was concerned about removal of the Governor by invoking the pleasure doctrine. The Hon ble Supreme Court after considering the principle of law laid down in various decisions held and observed in para 33 and 34 as under:-

33. The doctrine of pleasure as originally envisaged in England was a prerogative power which was unfettered. It meant that the holder of an office under pleasure could be removed at any time, without notice, without assigning cause, and without there being a need for any cause. But where rule of law prevails, there is nothing like unfettered discretion or unaccountable action. The degree of need for reason may vary. The degree of scrutiny during judicial review may vary. But the need for reason exists. As a result when the Constitution of India provides that some offices will be held during the pleasure of the President, without any express limitations or restrictions, it should however necessarily be read as being subject to the "fundamentals of constitutionalism". Therefore in a constitutional set up, when an office is held during the pleasure of any Authority, and if no limitations or restrictions are placed on the "at pleasure" doctrine, it means that the holder of the office can be removed by the authority at whose pleasure he holds office, at any time, without notice and without assigning any cause.

34. The doctrine of pleasure, however, is not a licence to act with unfettered discretion to act arbitrarily, whimsically, or capriciously. It does not dispense with the need for a cause for withdrawal of the pleasure. In other words, "at pleasure"

doctrine enables the removal of a person holding office at the pleasure of an Authority, summarily, without any obligation to give any notice or hearing to the person removed, and without any obligation to assign any reasons or disclose any cause for the removal, or withdrawal of pleasure. The withdrawal of pleasure cannot be at the sweet will, whim and fancy of the Authority, but can only be for valid reasons.

34. For the reasons stated above, the petition is allowed. The impugned order dated 18.6.2013 is quashed and set aside. The petitioners are held entitled to continue as Government representatives on the Managing Committee of respondent No.3 Sangh on the basis of the order dated 4.3.2013 irrespective of the impugned order dated 18.6.2013. The respondents are directed to permit the petitioners to work and discharge their duties as Government nominees/ representatives on the Managing Committee of respondent No.3 Sangh.

Rule is made absolute.

35. At this stage, learned advocate Mr. Pahwa requested to stay and suspend the operation of this judgment and order.

36. The Court having held that the petitioners are entitled to continue as Government representatives cannot accept the request to suspend its judgment and order. Hence, the request of learned advocate Mr. Pahwa is rejected.

Direct Service is permitted.

Sd/-

(C.L. SONI, J.) omkar Page 37 of 37

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Gujarat High Court