Gujarat High Court
Vipulbhai M Chaudhary vs State Of Gujarat & Ors on 5 February, 2014
Author: Paresh Upadhyay
Bench: Paresh Upadhyay
C/SCA/16515/2013 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 16515 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE PARESH UPADHYAY
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1 Whether Reporters of Local Papers may be allowed to seeYES
the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law asNO
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ? NO
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VIPULBHAI M CHAUDHARY ....Petitioner
Versus
STATE OF GUJARAT & ORS. ....Respondents
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Appearance:
MR B.B.NAIK, SENIOR ADVOCATE WITH
MR P.S.CHAMPANERI, ADVOCATE for the Petitioner
GOVERNMENT PLEADER for the Respondents No.1-2 - State
MR S.N.SHELAT, SENIOR ADVOCATE
FOR NANAVATI ASSOCIATES for the Respondent No.3
Page 1 of 34
C/SCA/16515/2013 CAV JUDGMENT
MR B.S.PATEL, ADVOCATE for the Respondents No.4, 6 & 7
MR AMIT PANCHAL for MS SHIVANI RAJPUROHIT for Respondent No.5
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CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY
Date : 05/02/2014
CAV JUDGMENT
1. The petitioner, the Chairperson of Respondent No.3 - Gujarat Co-operative Milk Marketing Federation Limited, Anand, has challenged the action of the Managing Director of the respondent Federation, of calling the meeting of the Board of Directors on 26.10.2013 to consider the No Confidence Motion moved by the majority of the Board of Directors against him, and all subsequent actions, including passing of the said No Confidence Motion on 05.12.2013 and his consequential removal from the said post.
2.1 The challenge to the consideration and passing of the said No Confidence Motion against the petitioner on 05.12.2013, is principally on the ground that, there is no such provision in the Gujarat Co-operative Societies Act, 1961 and in absence of any specific provision in the statute in that regard, the same could not have been done. There are other ancillary issues also, but principally, the controversy in this petition is as stated above.
2.2 Whether in absence of any provision in the statute, No Confidence Motion can be brought against any elected office Page 2 of 34 C/SCA/16515/2013 CAV JUDGMENT bearer or not, is already answered by this Court in three different decisions, the details of which are as under :
(i) Nandlal Bavanjibhai Posiya versus Director of Agriculture Marketing & Rural Finance 2002 (1) GLH 659 (Full Bench) [under the Gujarat Agricultural Produce Markets Act, 1963 ]
(ii) Motibhai R. Chaudhary versus Registrar, Co-
operative Societies 2005 (1) GLH 270 (Division Bench) [under the Gujarat Co-operative Societies Act, 1961 ]
(iii) Narmadaben Parmar versus Taluka Development Officer, Kheralu 1998 (1) GLR 225 (Single Judge) [under the Gujarat Panchayats Act, 1993] Thus, under (i) the Gujarat Agricultural Produce Markets Act, 1963, (ii) the Gujarat Co-operative Societies Act, 1961, and (iii) the Gujarat Panchayats Act, 1993, consistent view of this Court has been, that even in absence of any specific provision in the principal statute, No Confidence Motion can be brought and considered to remove any elected office bearer.
2.3 However, learned advocate for the petitioner, in support of above stated principal contention, had placed strong reliance on the decision recorded by the learned Single Judge of this Court in the case of Babubhai Kalidas Patel versus State of Gujarat & Others, on Special Civil Application No.11351 of Page 3 of 34 C/SCA/16515/2013 CAV JUDGMENT 2012 with Special Civil Application No.4087 of 2012 dated 01.11.2012. Attention of this Court was invited to para 7.15 of the said decision to point out that, the view expressed by the Division Bench of this Court in the case of Motibhai R. Chaudhary (supra), which otherwise could have governed the controversy in this petition, is no more a good law. It was further pointed out that, not only the decision of the Division Bench of this Court in the case of Motibhai R. Chaudhary (supra) is held to have been impliedly overruled, even the judgment of the Full Bench of this Court in the case of Nandlal Bavanjibhai Posiya (supra) and that of Single Judge in case of Narmadaben V.Parmar (supra) are also held to have stood impliedly overruled, by the said decision of Babubhai Kalidas Patel (supra).
3. Taking into consideration the above principal contention and the decision of this Court in the case of Babubhai Kalidas Patel (supra), while issuing Notice on 25.10.2013, this Court had granted stay in favour of the petitioner in terms of Para- 15(E) of the petition. The said para reads as under.
"This Hon'ble Court will be pleased to stay the implementation and further operations of the impugned communication dated 23.10.2013 including agenda of the convening the meeting on 26.10.2013 at 11.00 a.m. at the office of the respondent No.3 Federation for transacting the business enumerated at Item No.1 annexed to the communication Annexure-C in any manner till pending, hearing and final disposal of this petition."Page 4 of 34 C/SCA/16515/2013 CAV JUDGMENT
4. This petition was admitted by this Court vide order dated 29.11.2013 and again, taking note of the decision of this Court in the case of Babubhai Kalidas Patel (supra), the interim relief in terms of above quoted Para-15(E) was confirmed. Thus, the effect thereof was that, the respondent No.3 Federation was restrained even from convening the meeting to consider the No Confidence Motion against the petitioner.
5. Being aggrieved, the contesting respondents had filed Letters Patent Appeals No.1413 of 2013 and cognate matters. Those Appeals were admitted vide order dated 04.12.2013 and the stay order granted by this Court on 29.11.2013 in terms of Para-15(E) of the petition was modified as under.
" .....The interim relief granted by the learned Single Judge is modified to the extent that it will be open for the appellant - Federation to convene the meeting and transact the agenda item in Agenda dated 23.10.2013 and place the same before this Court. It will be open for the appellant - Federation to take all necessary and required steps. The same shall not be implemented without prior permission of this Court......"
6. Pursuant to the above order of the Division Bench of this Court dated 04.12.2013, on 05.12.2013 No Confidence Motion was considered and passed against the petitioner by the Board of Directors, however, the same was not to be implemented without the permission of this Court as ordered by the Division Bench in the order dated 04.12.2013 as quoted above.
Page 5 of 34 C/SCA/16515/2013 CAV JUDGMENT7. The above order of the Division Bench of this Court dated 04.12.2013 gave rise to the proceedings before Honourable the Supreme Court of India at the hands of the petitioner, being SLP (Civil) Nos.37057 - 37059 of 2013. Taking note of the developments of 05.12.2013, those SLPs came to be disposed off by Hon'ble the Supreme Court of India vide order dated 06.12.2013. The said order reads as under.
"Heard.
2. At the outset, our attention was drawn to the copy of the Resolution No.03 dated 05.12.2013 regarding approval of No Confidence Motion dated 23.10.2013.
3. The Resolution No.03 reads as follows:-
" It is unanimously resolved that this board has lost the confidence in the honorary Chairperson/Chairman Shri Vipulbhai Manish Chaudhary for maintaining the dignity of the honorary post of Chairman/ Chairperson. Without assigning reasons we declare no confidence and resolve to declare post of Chairperson/ Chairman vacant after obtaining the necessary permission from the Honourable Gujarat High Court this decision can be implemented and Managing Director is directed to arrange for fresh election."
4. Mr.Mukul Rohatgi, learned senior counsel for the respondent No.1 - Gujarat Co-operative Marketing Federation Limited (for short, 'Federation') submits Page 6 of 34 C/SCA/16515/2013 CAV JUDGMENT that Federation shall make an appropriate application for implementation of the above Resolution before the single Judge, if permitted by this Court.
5. We think that the prayer made on behalf of the respondent No.1 is reasonable. Instead of making an application for implementation of the Resolution dated 05.12.2013 before the Division Bench, we think that it will be appropriate if such application is made before the single Judge. We order accordingly.
6. It will be open to the petitioner to oppose such application on all available grounds. We leave it open to the single Judge to either consider the application for implementation of the Resolution dated 05.12.2013 or hear the Special Civil Application No.16515 of 2013 itself finally for which date has already been fixed on 23.12.2013 or any other date which may be fixed by the Court.
7. Special leave petitions stand disposed of.
8. In what we have observed above, the Letter Patent Appeals do not survive and they also stand disposed of."
8. Thus, the bunch of LPAs which were pending before this Court, being Letters Patent Appeal Nos.1413 of 2013 and cognate matters came to be disposed of by the order of Hon'ble the Supreme Court as quoted above. Further, pursuant to the said order of the Apex Court, the respondent No.3 Federation also moved Civil Application No.13220 of 2013 Page 7 of 34 C/SCA/16515/2013 CAV JUDGMENT before this Court, seeking permission to implement the Resolution passed by the Board of Directors of the respondent Federation against the petitioner. Under these circumstances, this petition was listed for hearing on 23.12.2013 along with Civil Application No.13220 of 2013. The matter was heard on December 23, 24 and 26, 2013. It was heard along with Special Civil Application No.16594 of 2013, which was filed by the Mehsana District Co-operative Milk Producers Union Limited.
9. During the course of hearing, on the principal contention, reliance was placed by the petitioner on the decision of learned Single Judge of this Court in the case of Babubhai Kalidas Patel (supra). However, this Bench expressed its inability to concur with the view expressed by the co-ordinate Bench in the said decision, and on 06.01.2014, order was pronounced by this Court. Paras-7.5 and 8.1 of the said order dated 06.01.2014 are relevant at this juncture, which read as under.
"7.5 For the above reasons, I have not been able to persuade myself to concur with the view expressed by this Court in the case of Babubhai Kalidas Patel (supra) that, the above referred three decisions of this Court, including that of the Division Bench and the Full Bench of this Court are impliedly overruled in view of the decision of the Apex Court in the case of Pratap Chandra Mehta (supra).
8.1 The next question is, as to under these circumstances, which course should I adopt. When, in substance as well as in procedure, both, according to me, the decision in the case of Babubhai Kalidas Patel Page 8 of 34 C/SCA/16515/2013 CAV JUDGMENT (supra) is in conflict with the law laid down by the Apex Court as narrated above, without referring the matter to the Division Bench, I could have proceeded to adjudicate the petition in accordance with law, however judicial discipline and propriety demands that our Court should not appear to be heard in different voices to the society, on broad proposition of law. Keeping this obligation in view, I consider it prudent to refer the matter to the Division Bench on the issue, as to whether the decision of the Full Bench of this Court in the case of Nandlal Bavanjibhai Posiya (supra), and that of the Division Bench of this Court in the case of Motibhai R.Chaudhary (supra) and that of Single Judge in the case of Narmadaben V.Parmar (supra) can be said to have stood impliedly overruled, as perceived by this Court in the case of Babubhai Kalidas Patel (supra)."
10. The operative part of the said order dated 06.01.2014 reads as under.
"14.1 In the result, the following order is passed.
14.2 Special Civil Application No.16515 of 2013
(i) This petition is entertained on merits. The preliminary objection of the respondents about its maintainability is rejected, for the reasons and circumstances recorded in Para 9 above.
(ii) On the principal contention of the petitioner, that in absence of any provision in the Gujarat Co-
operative Societies Act, 1961, No Confidence Motion Page 9 of 34 C/SCA/16515/2013 CAV JUDGMENT could not have been considered and passed against him, the matter is referred to the Division Bench to consider the question as to whether, the decision of the Full Bench of this Court in the case of Nandlal Bavanjibhai Posiya (supra), and that of the Division Bench of this Court in the case of Motibhai R.Chaudhary (supra) and that of Single Judge in the case of Narmadaben V.Parmar (supra), can be said to have stood impliedly overruled, as perceived by this Court in the case of Babubhai Kalidas Patel (supra), on the face of the reasons recorded in Para 7 above.
(iii) The alternative submission of the petitioner as recorded in Para 10 is rejected.
(iv) The prayer clause 15(AA) is rejected.
14.3 Special Civil Application No.16594 of 2013 is dismissed.
14.4 Civil Application No.13220 of 2013 in Special Civil Application No.16515 of 2013 is allowed. The applicant - Gujarat Co-operative Milk Marketing Federation Limited is at liberty to implement the Resolution dated 05.12.2013 expressing no confidence in Mr.Vipulbhai Chaudhary, as the Chairperson of the Federation.
15. Registry is directed to place the papers of Special Civil Application No.16515 of 2013 before Hon'ble the Chief Justice, to consider for placing it before the Division Bench, to consider the question as to whether, the decision of the Full Bench of this Court in the case of Nandlal Bavanjibhai Posiya Page 10 of 34 C/SCA/16515/2013 CAV JUDGMENT (supra), and that of the Division Bench of this Court in the case of Motibhai R.Chaudhary (supra) and that of Single Judge in the case of Narmadaben V.Parmar (supra) can be said to have stood impliedly overruled, as perceived by this Court in the case of Babubhai Kalidas Patel (supra)."
11.1 The above order dated 06.01.2014 gave rise to three Letters Patent Appeals being Letters Patent Appeals No. 6, 7 and 14 of 2014 and one Reference to the Division Bench.
11.2 Letters Patent Appeal No. 7 of 2014 is filed by the Mehsana District Co-operative Milk Producers Union Limited in Special Civil Application No.16594 of 2013. So far Letters Patent Appeal No. 7 of 2014 is concerned, at present, it has no relevance.
11.3 So far Letters Patent Appeal No. 14 of 2014 is concerned, it is in this petition i.e. Special Civil Application No.16515 of 2013. From record it transpires that, it is against the judgment and order as contained in Para-14.2 (ii) and (iii) of the above referred order dated 06.01.2014. The said appeal is pending without any order, at the request of the appellant, as reflected in the order dated 10.01.2014 recorded by the Division Bench.
11.4 So far Letters Patent Appeal No. 6 of 2014 is concerned, challenge therein was to that part of the order dated 06.01.2014 by which Civil Application No.13220 of 2013 was allowed by this Court and respondent Federation was permitted to give effect to the Resolution passed by it on 05.12.2013 expressing No Confidence in the petitioner. The Page 11 of 34 C/SCA/16515/2013 CAV JUDGMENT Division Bench vide its order dated 10.01.2014 dismissed the said Appeal.
11.5 The said order dated 10.01.2014 passed by the Division Bench, dismissing Letters Patent Appeal No.6 of 2014 is the subject matter of the challenge before Honourable the Supreme Court of India in SLP (Civil) CC No. 780 of 2014. On the said SLP, on 15.01.2014, the following order came to be passed.
"The copy of the impugned order is not placed on record by the petitioner.
Mr. C.A. Sundaram,, learned senior counsel for the petitioner, submits that the copy of the order has not been made available.
Let copy of the impugned order be placed on record within two weeks.
Mr. Mukul Rohatgi, learned senior counsel for the respondent No.1 - Gujarat Co-operative Milk Marketing Federation Ltd. (for short, 'Federation'), brought to our notice the communication dated January 11, 2014 sent by the Managing Director of the Federation to the petitioner intimating him that the resolution number 3 passed by the Board of Directors of the Federation dated 5th December, 2013 wherein no confidence motion against the petitioner had been unanimously passed has been implemented.
Mr. C. A. Sundaram,, learned senior counsel for the petitioner, submits that the said communication is Page 12 of 34 C/SCA/16515/2013 CAV JUDGMENT illegal.
Be that as it may, having regard to the above communication, we direct the parties to maintain status quo as existing today.
List the matter after two weeks.
Pendency of the special leave petition shall not be considered as stay of the hearing of the reference."
11.6 Thereafter, the Division Bench of this Court has, vide judgment dated January 17-20, 2014 answered the question of law which was referred to it. The operative part of the judgment of the Division Bench reads as under.
"36. In view of the aforesaid observations and discussions, our answer to the question is as under:-
The decision of the Full Bench of this Court in the case of Nandlal Bavanjibhai Posiya (supra) and that of the Division Bench of this Court in the case of Motibhai R. Chaudhary (supra) and that of the learned Single Judge in the case of Narmadaben V. Parmar (supra) can be said as impliedly overruled only limited to taking aid of the General Clauses Act, but cannot be said as impliedly overruled for consideration of the motion of no confidence in absence of any statutory provision provided for consideration of the motion of no confidence or in absence of any statute or rule prohibiting the consideration of motion of no confidence." (emphasis supplied) Page 13 of 34 C/SCA/16515/2013 CAV JUDGMENT
12. It is under these circumstances, that this petition is now listed for further hearing before this Court. As noted above, the merits of the matter were gone into while recording order dated 06.01.2014 and except the principal contention referred above, all other contentions were answered and appropriate order was also passed. Not only that, it is even the subject matter of Letters Patent Appeal No.14 of 2014. While recording order dated 06.01.2014, the only contention left unanswered was, as to whether the No Confidence Motion could have been brought at all, against the petitioner, in absence of any provision in that regard in the Gujarat Co-operative Societies Act, 1961. As such, in view of the decision of the Division Bench of this Court in the case of Motibhai Chaudhry (supra) this contention could have been rejected then only, however, since the said decision of Motibhai Chaudhry (supra) was perceived to have been impliedly overruled by the co-ordinate Bench while recording decision in the case of Babubhai Kalidas Patel (supra), reference was made to the Division Bench and now, in view of the judgment of the Division Bench dated January 17-20, 2014, it is held that the view expressed by the Division Bench of this Court in the case of Motibhai Chaudhry (supra) is not impliedly overruled, so far as consideration of the no confidence motion even in absence of any statutory provision in that regard is concerned. Thus, the said contention now gets answered by the Division Bench as quoted above. The said contention therefore needs to be rejected. However, learned Senior Advocate for the petitioner has, at this stage, made further submissions before this Court, which need to be dealt with and answered.
13.1 Learned Senior Advocate for the petitioner has Page 14 of 34 C/SCA/16515/2013 CAV JUDGMENT submitted that, true it is, that the Division Bench has now answered the reference on the question of law as referred above and has held that, the view expressed by this Court in the three decisions, i.e. in the cases of Nandlal Bavanjibhai Posiya (supra), Motibhai Chaudhary (supra) and Narmadaben Parmar (supra) is not impliedly overruled, as was perceived by this Court in the case of Babubhai Kalidas Patel (supra), but still, it is the contention of the petitioner that those three decisions were per incuriam, and therefore this Court may hold that, in absence of any provision in the statute, No Confidence Motion could not have been brought or considered against the petitioner. To support the contention that, the decision of this Court in the cases of Nandlal Bavanjibhai Posiya (supra), Motibhai Chaudhary (supra) and Narmadaben Parmar (supra) are per incuriam, reliance is placed on the decision of Hon'ble the Supreme Court of India in the case of Mohan Lal Tripathi versus District Magistrate, Rai Bareilly and others reported in (1992) 4 SCC 80 = AIR 1993 SC 2042. It is further submitted that, while rendering the said decision, the view expressed by Hon'ble the Supreme Court of India in the cases of (i) Jagan Nath versus Jaswant Singh - AIR 1954 SC 210, (ii) Kabul Singh versus Kundan Singh - AIR 1970 SC 340, (iii) Jyoti Basu versus Debi Ghosal - (1982) 1 SCC 691 and (iv) Arun Kumar Bose versus Mohd.Furkan Ansari - (1984) 1 SCC 91, was also kept in view and thus the view expressed in Mohan Lal Tripathi (supra) has to be accepted as the consistent view of Hon'ble the Supreme Court of India. It is further submitted that the said decision of the Apex Court in the case of Mohan Lal Tripathi (supra) is specifically referred to in the case of Pratap Chandra Mehta versus State Bar Council of Madhya Pradesh reported in (2011) 9 SCC 573 (Para-43 thereof). Reliance is Page 15 of 34 C/SCA/16515/2013 CAV JUDGMENT also placed on the decision of Hon'ble the Supreme Court of India in the case of Ravi Yashwant Bhoir versus District Collector, Raigad and others reported in (2012) 4 SCC 407 with specific reference to Para-35 thereof. Attention of this Court is also invited to Para 8.2 of the decision of Babubhai Kalidas Patel (supra). It is therefore reiterated by learned Senior Advocate for the petitioner that the decision of this Court in the cases of Nandlal Bavanjibhai Posiya (supra), Motibhai R. Chaudhary (supra) and Narmadaben Parmar (supra) are per incuriam since they are in ignorance of the law pronounced by Hon'ble the Supreme Court of India, in the matter relating to removal of any office bearer, by expressing No Confidence in him by the majority of the members who had put him in that office by election. It is further submitted that, even in view of the judgment of the Division Bench of this Court dated January 17-20, 2014, on this very petition, the decision of this Court in the cases of Nandlal Bavanjibhai Posiya (supra), Motibhai R. Chaudhary (supra) and Narmadaben Parmar (supra) are accepted to have been impliedly over-ruled atleast to the extent that there can not be any applicability of General Clauses Act in the election matters. It is further contended that equity and common law has no play, so far the election matters are concerned. It is further submitted that the Full Bench of this Court in the case of Nandlal Bavanjibhai Posiya (supra) had stressed much on the inherent power, but that inherent power has also to be read with the law of equity and common law, which can not have any play in the filed of election matters, that is how Nandlal Bavanjibhai Posiya (supra) is per incuriam, and since Motibhai R. Chaudhary (supra) and Narmadaben Parmar (supra) are also on this line, they also be held per incuriam. It is submitted that if these Page 16 of 34 C/SCA/16515/2013 CAV JUDGMENT three decisions are accepted to be per incuriam, then the present case can not be said to be governed by the decision of the Division Bench of this Court in the case of Motibhai R. Chaudhary (supra) and therefore, the petitioner would be entitled to contend that he has right to be in office as the Chairperson of the respondent No.3 Federation for the term for which he was elected by the Board of Directors on 18.08.2012. It is contended that since the petitioner is removed from the said post pursuant to the No Confidence Motion passed against him vide Resolution dated 05.12.2013, this Court may declare that action to be illegal and set aside all subsequent and consequential actions against the petitioner and this petition be allowed.
13.2 Additionally, it is contended that the petitioner held a statutory post in view of Section 2(14) of the Gujarat Co- operative Societies Act, 1961, and further that, in view of Section 74(1C) of the Act, as amended vide the Gujarat Co- operative Societies (Amendment) Act, 2013, he could not have been removed from his post before the expiry of the term which was available to him statutorily. This is elaborated by further contending that the petitioner was elected to the office of the Chairperson of respondent No.3 Federation on 18.08.2012 and he had right to remain on that post for five years.
14.1 Per contra, Mr.S.N.Shelat, learned Senior Advocate for the respondent No.3 Federation has submitted that the decision of this Court in the cases of Nandlal Bavanjibhai Posiya (supra), Motibhai Chaudhary (supra) and Narmadaben Parmar (supra) can not be termed as per incuriam as Page 17 of 34 C/SCA/16515/2013 CAV JUDGMENT contended by the learned advocate for the petitioner. Specific reference is made to Para-31 and 32 of the judgment of this Court in the case of Nandlal Bavanjibhai Posiya (supra) to contend that, the decision of Hon'ble the Supreme Court of India in the case of Mohan Lal Tripathi (supra) was not only very much in the view, but the Full Bench of this Court had, after taking guidance from the said decision, delivered the judgment. It is further submitted that even while recording the judgment in the case of Motibhai Chaudhary (supra), the Division Bench of this Court was also conscious of the judgment of Hon'ble the Supreme Court of India in the case of Mohan Lal Tripathi (supra). Attention of this Court is invited to Para-25 thereof. Under these circumstances, it is submitted that, it can not be said that the decision of this Court in the cases of Nandlal Bavanjibhai Posiya (supra), or Motibhai R. Chaudhary (supra), or Narmadaben Parmar (supra) are per incuriam. Reference in this regard is also made to the decision of Hon'ble the Supreme Court of India in the case of K.S. Panduranga versus State of Karnataka reported in (2013) 3 SCC 721, to support the submission that under what circumstances, a decision can be said to be per incuriam, which is not the case here. It is further submitted that the case of Ravi Yashwant Bhoir (supra) was in the case of removal of an office bearer on the ground of misconduct, which is not the case here and even if it was to be relied, it would help the respondent No.3 Federation and not the petitioner.
14.2 With regard to the second contention of the petitioner that he has right to be on the post of the Chairperson of the respondent No.3 Federation for a term of five years starting from 18.08.2012, it is submitted by learned Page 18 of 34 C/SCA/16515/2013 CAV JUDGMENT advocate for respondent No.3 Federation that, this is an after- thought, since in the petition, it was asserted that he has right to be on that post for a term of three years. Further, the concept of term of five years is picked up by the petitioner from the Gujarat Co-operative Societies (Amendment) Act, 2013, which was effective from 15.04.2013 and it does not have retrospective effect and therefore, the contention of the petitioner is ill-founded. Attention of this Court is also invited to Section 168A of the Gujarat Co-operative Societies (Amendment) Act, 2013, which pertains to transitory provisions. By referring to the provision of Section 145Z (2) of the Gujarat Co-operative Societies Act, 1961, it is submitted that the petitioner has stepped in the office in question pursuant to the by-laws of respondent No.3 Federation and he can not assert any right independent of, or inconsistent with the said by-laws. Reference is made to by-law No.18.1 and 18.2 of the by-laws of the Gujarat Co-operative Milk Marketing Federation Limited, Anand. It is submitted that not only the claim of the petitioner for five years is an after-thought, but even for three years also, at the best it was a contractual relationship and any breach thereof can be agitated by the petitioner by claiming damages, if the petitioner feels that he has suffered damages. Reference is also made to by-law No.23 in this regard. In support of this contention, reliance is placed on the decision of Hon'ble the Supreme Court of India in the case of Zoroastrian Co-operative Housing Society Ltd. versus District Registrar, Co-operative Societies (Urban) reported in AIR 2005 SC 2306. It is further submitted that democratic principles and political principles are different and both can not be mixed. The grievance of the petitioner is about political principles, but his cessation from the office is pursuant to the Page 19 of 34 C/SCA/16515/2013 CAV JUDGMENT unanimous adoption of the No Confidence Motion against him, which is based on democratic principles and not political. It is submitted that this petition be dismissed.
15. Mr.B.S. Patel, learned advocate for the respondents No.4, 6 and 7, to contest the submission of learned advocate for the petitioner that the petitioner has right to hold the post for a term of five years, has submitted that, it is not only ill-founded but it would be unworkable also. It is submitted that the petitioner can not remain in office for a period exceeding the term of the committee, which has elected him. He has relied on the decisions of this Court in the case of Atulbhai Patel versus State of Gujarat and others reported in 2009 (1) GLR 623, and that of Ganpatbhai M. Solanki versus District Collector in Letters Patent Appeal No.475 of 1995, dated 25.02.1997. It is submitted that the petition be dismissed.
16. Mr.Amit Panchal, learned advocate for respondent No.5 has adopted the submissions made by learned Senior Advocate for the respondent No.3 Federation. It is submitted that the petition be dismissed.
17. Having heard learned advocates for the respective parties and having gone through the material on record, before the above stated contentions are dealt with, at the outset, it needs to be recorded that this petition was not only heard earlier, but was decided also, in part. Further, even the part of judgment and order dated 06.01.2014, to the extent of Para- 14.2 (ii) and (iii) is also the subject matter of Letters Patent Appeal No.14 of 2014, which is yet to be heard on merits, as transpires from the order dated 10.01.2014 recorded on the Page 20 of 34 C/SCA/16515/2013 CAV JUDGMENT said appeal. Under these circumstances, it is only that part of this petition, which is not decided while recording order dated 06.01.0214, that can be considered at this stage. It is recorded that even all the learned advocates have also addressed this Court only on those points, which are not forming part of the order of this Court dated 06.01.2014. As noted above, while recording the order dated 06.01.2014, the only contention left unanswered was, as to whether the No Confidence Motion could have been brought at all, against the petitioner, in absence of any provision in that regard in the Gujarat Co- operative Societies Act, 1961. As such, in view of the decision of the Division Bench of this Court in the case of Motibhai Chaudhry (supra), this contention could have been rejected then only, however, since the said decision of Motibhai Chaudhry (supra) was perceived to have been impliedly overruled by the co-ordinate Bench while recording decision in the case of Babubhai Kalidas Patel (supra), reference was made to the Division Bench and now, the Division Bench has also, vide its judgment dated January 17-20, 2014 held that, the view expressed by the Division Bench of this Court in the case of Motibhai Chaudhry (supra) is not impliedly overruled, so far consideration of the No Confidence Motion even in absence of any statutory provision in that regard, is concerned. Thus, the said contention now gets answered by the Division Bench as quoted above and the said contention therefore needs to be rejected, however, as noted above, learned Senior Advocate for the petitioner has, at this stage, made further submissions also, which need to be dealt with and answered and by this judgment, only those contentions are gone into and answered as under.
Page 21 of 34 C/SCA/16515/2013 CAV JUDGMENT18.1 So far the first contention of learned advocate for the petitioner is concerned, in substance it is that, the view expressed by this Court in the three decisions viz., that of Nandlal Bavanjibhai Posiya (supra), Motibhai R. Chaudhary (supra) and Narmadaben Parmar (supra), is per incuriam and therefore, in absence of any provision in the statute, No Confidence Motion could not have been brought or considered against the petitioner. To support this contention, strong reliance is placed on the decision of Hon'ble the Supreme Court of India in the case of Mohan Lal Tripathi (supra). This contention is required to be rejected on more than one grounds. Firstly, the petition is based on the argument that the view expressed by this Court in those three decisions had stood impliedly overruled as perceived by this Court in the case of Babubhai Kalidas Patel (supra). This argument, in no uncertain terms, was not accepted by this Court while recording decision dated 06.01.2014, however, keeping in view the judicial propriety and discipline, reference was made to the Division Bench and that reference is also now answered by the Division Bench, and it is against the petitioner. It is under these circumstances, that the petitioner has now contended that, this Court may hold that, the view expressed by this Court in those three decisions viz., that of Nandlal Bavanjibhai Posiya (supra), Motibhai Chaudhary (supra) and Narmadaben Parmar (supra), if not overruled, is per incuriam, vis-a-vis the view of the Apex Court principally in the case of Mohan Lal Tripathi (supra), and other decisions on that line. This contention under these circumstances, could not have been even permitted to be raised at this stage, however, taking note of the contents of Para-8.4 of the order dated 06.01.2014 and Para-34 and 35 of the judgment of the Division Bench on this Page 22 of 34 C/SCA/16515/2013 CAV JUDGMENT petition dated January 17-20, 2014, this contention is examined on merits, and having examined the same, this Court finds as under.
18.2 What is per incuriam ? Per incuriam are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority biding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong. Differently put, the rule of per incuriam can be applied where a court omits to consider a binding precedent of the same court or the superior court rendered on the same issue or where a court omits to consider any statute while deciding that issue. Hon'ble the Supreme Court of India, in the case of K.S. Panduranga Vs. State of Karnataka, reported in (2013) 3 SCC 721, has taken note of, and reiterated, this proposition of law.
18.3 Keeping the above proposition of law in view, with regard to per incuriam, if the contents of the decisions of this Court in the case of Nandlal Bavanjibhai Posiya (supra) and Motibhai R. Chaudhary (supra) are seen, it is found that, while recording those judgments, the decision of Hon'ble the Supreme Court of India in the case of Mohan Lal Tripathi (supra) is not only referred to, but is taken guidance from. In this regard, the following paragraphs of those two decisions are required to be referred to, which are as under.
18.4 Para-31 and 32 of Nandlal Bavanjibhai Posiya (supra) read as under.
Page 23 of 34 C/SCA/16515/2013 CAV JUDGMENT"31. Right to participate in election, as has been reiterated by the Supreme Court in the case of Mohan Lal Tripathi (supra) AIR 1993 SC 2042, is neither a "fundamental right" nor "common law right", but a special right created by the statute. It is observed thus:-
"It is a "political right" or "privilege"
and not a "natural", "absolute", or "vested right". Concepts familiar to common law and equity must remain stranger to election law, unless statutorily recognized. Right to remove an elected representative, too must stem out of the statute, as "in absence of a constitutional restriction, it is within the power of a legislature to enact a law for the recall of officers. Its existence or validity can be decided on the provisions of the Act and not as a matter of policy. In modern political set-
up direct popular check by recall of elected representative has been universally acknowledged in any civilized system. The efficacy of such a device can hardly admit of any doubt, but how it should be initiated, what should be the procedure, who should exercise it within the ambit of constitutionally permissible limits falls in the domain of legislative power."
32. Taking guidance from the above authoritative Page 24 of 34 C/SCA/16515/2013 CAV JUDGMENT pronouncement of the Apex Court, we have to construe the provisions. First, we take up the case under Agricultural Produce Markets Act to examine whether any statutory right exists in the members of the Market Committee to recall or remove its Chairman/ Vice-Chairman by moving a no-
confidence motion."
18.5 Para-26 of Motibhai Chaudhary (supra) reads as under.
"26. On interpretation of the relevant provisions of the Act, the Apex Court rejected the first contention and held that such power of removal by passing a vote of no-confidence was available against Presidents of all Municipalities, whether directly elected or elected by the Municipal Board.
The second contention which has been strenuously urged by the learned counsel for the present appellant is really not available to him in the facts of the present case, because the Chairman in the present case was elected by elected members of the Managing Committee themselves and the same body has removed him by passing a vote of no- confidence.
In Mohan Lal Tripathi's case, the Apex Court held that when the statute provides for removal of President of a Municipality by passing a vote of no- confidence by the members of the Municipal Board even against a President directly elected by the people of the town, such a statutory provision Page 25 of 34 C/SCA/16515/2013 CAV JUDGMENT prevails notwithstanding any concept or political philosophy that the body which has elected its representative should itself have the power to remove or recall the elected representative. However, what is interesting is that the Court negatived the challenge based on Article 14 that it is arbitrary or irrational to permit a smaller and different body than the one that elected the President of the Municipality to remove the President. The Apex Court gave the following reasoning:-
"...A person removed from office of President for loss of confidence, from the very nature of the Constitution of Board, is recall by the electorate themselves. An elected representative is accountable to its electorate. That is the inherent philosophy in the policy of recall. For the President his electorate, to exercise this light, is the Board as it comprises of representatives of the same constituency from which the President is elected. Purpose of S.87-A of the Act is to remove elected representative who has lost confidence of the body which elected him. It may be by people themselves or they may entrust their power through legislation to their representative. In Act it is the latter. Members of the Board are elected from smaller constituencies. They represent the entire electorate as they are representatives of the people although smaller in body. A President who is elected by the entire electorate when removed by such members of the Board who have also been elected by the people is in fact removal by the electorate itself. Such provision neither violates the Page 26 of 34 C/SCA/16515/2013 CAV JUDGMENT spirit nor purpose of recall of an elected representative. Rather ensures removal by a responsible body. It cannot be criticized either as irrational or arbitrary or violative of any democratic norm. ... The Board is thus visualised as a body entrusted with responsibility, to keep a watch on the President whether elected by it or the electorate. Any arbitrary functioning by the President or disregard of provision of the Statute or acting contrary to the interest of electorate could be known to the Board only. Therefore, it was not only proper, but necessary to empower the Board to take action, if necessary."
The aforesaid observations, therefore, support the case of the respondents herein (original petitioners) rather than the appellant. It is not possible to visualize the accountability of the President to the body electing him without that body having the power to remove him by passing a vote of no-confidence, unless the relevant statute prescribes a different procedure or forum."
18.6 Thus the contention that the above referred decisions of the Full Bench and Division Bench of this Court were per incuriam, not only is not well founded but stands disproved by the above quoted paragraphs of the said two decisions. Under these circumstances, the contention that the decision of this Court in the cases of Nandlal Bavanjibhai Posiya (supra), Motibhai Chaudhary (supra) and Narmadaben Parmar (supra) are per incuriam, is rejected. No further deliberation may be required in this regard, however there are subsequent decisions of Hon'ble the Supreme Court of India in Page 27 of 34 C/SCA/16515/2013 CAV JUDGMENT this regard and even taking note of the law propounded in those judgments, the view expressed by the Full Bench and Division Bench of this Court as referred above, is further fortified.
18.7 Reference can be made to the decision of Hon'ble the Supreme Court of India in the case of Ravi Yashwant Bhoir (supra). Para-37 thereof reads as under.
"37. A duly elected person is entitled to hold office for the term for which he has been elected and he can be removed only on a proved misconduct or any other procedure established under law like "no confidence motion", etc. The elected official is accountable to its electorate as he has been elected by a large number of voters and it would have serious repercussions when he is removed from the office and further declared disqualified to contest the election for a further stipulated period."
18.8 Further, in substance, the point for consideration is, as to whether in absence of any provision in the Statute, No Confidence Motion could be brought at all, against the petitioner. On behalf of the petitioner submission is that, in absence of provision, it can not be done. The contest from the other side is that, in absence of prohibition, it can be done. Hon'ble the Supreme Court of India in the case of Bhanumati (supra) has dealt with this aspect, terming it to be constitutional doctrine of silence. Para 51 thereof reads as under.
Page 28 of 34 C/SCA/16515/2013 CAV JUDGMENT"51. Many issues in our constitutional jurisprudence evolved out of this doctrine of silence. The basic structure doctrine vis-a-vis Article 368 of the Constitution emerged out of this concept of silence in the Constitution. A Constitution which professes to be democratic and republican in character and which brings about a revolutionary change by the Seventy-third Constitutional Amendment by making detailed provision for democratic decentralisation and self-government on the principle of grass-root democracy cannot be interpreted to exclude the provision of no-confidence motion in respect of the office of the Chairperson of the panchayat just because of its silence on that aspect."
18.9 This can be viewed from one more dimension. In the case of Pratap Chandra Mehta (supra), the argument was that in absence of provision in the principal Statute, even if there is provision in the Rules, No Confidence Motion can not be brought and considered against the office bearer of the Bar Council, since there can not be any rule, which travels beyond the authorisation of the principal statute. Taking note of the decision of Pratap Chandra Mehta (supra), the Division Bench of this Court has, on this very petition, in its judgment dated January 17-20, 2014, in Para-20, observed as under.
"20. The aforesaid shows that the Apex Court did observe that the democratic principles would require that the person who attains the position of Chairman or Vice Chairman, as the case may be, would be removed by same electorate or similar body which Page 29 of 34 C/SCA/16515/2013 CAV JUDGMENT elected them to that position by taking recourse of no confidence motion and in accordance with the rules. In our view, such observations would mean that if rule or any statute expressly provides for consideration of motion of no confidence, such rules or statute are to be followed and it would control the manner in which no confidence motion can be considered. The Apex Court further observed that the body that elects a person to such a position would and ought to have the right to oust him/her from the post, in the event the majority members of the body did not support the said person at that time. This would show the right with the electorate, who have elected the person to a particular post to oust him/her from the same post. We are of the considered view that the Apex Court in the said decision of Pratap Chandra Mehta (supra) has maintained the validity of the rules on the observance of the aforesaid principles and further legislative power to regulate the consideration of the motion of no confidence. But, thereby, it cannot be said that the Apex Court in the said decision ruled that in absence of any express provisions under statute, such right to oust a person from the post with the electorate would not exist. In our view, the observations made by the Apex Court at paragraph 45 of the decision in the case of Pratap Chandra Mehta (supra) could be said as supplementing such rights with the electorate to oust the person concerned from the post."
18.10 In view of the reasoning recorded in Para-18.2 to Para-18.6 above, it is held that, the decision of this Court in the Page 30 of 34 C/SCA/16515/2013 CAV JUDGMENT cases of Nandlal Bavanjibhai Posiya (supra), Motibhai Chaudhary (supra) and Narmadaben Parmar (supra), in no way can be termed as per incuriam. Not only that, in view of the reasoning recorded in Para-18.7 to Para-18.9 above, it is further held that, the view expressed by this Court in those three decisions is further fortified by the subsequent decisions of Hon'ble the Supreme Court of India. The principal contention of the petitioner therefore is rejected.
19.1 So far the next contention of learned advocate for the petitioner is concerned, in substance, it is to the effect that, the petitioner was holding a statutory post of the Chairperson of the respondent No.3 Federation and further that, he could not have been removed from his post before the expiry of the term, which was for five years from 18.08.2012.
19.2 The above contention could have been rejected without going into it, for the simple reason that, be it three years or five years, he can not assert his right to be on the post, when No Confidence Motion is validly considered and passed against him unanimously by the Board of Directors. Even if this contention, along with other ancillary issue like the post in question being a statutory post, etc. is considered, the same is found to be not well-founded, because the petitioner had entered the office of the Chairperson of the respondent No.3 Federation, pursuant to the process under its by-laws, the relevant of which reads as under.
"18. Board of Directors-
18.1 The Board will consist of the following :Page 31 of 34 C/SCA/16515/2013 CAV JUDGMENT
18.1(i) Chairmen of the affiliated milk unions enrolled as ordinary members.
18.1(ii) Registrar or his representative not below the rank of Joint Registrar.(C.S.) 18.1(iii) One Dairy Management Expert to be co-
opted by the Board.
18.1(iv) Managing director of the Federation (ex- offcio).
18.1(v) A nominee of the National dairy Development Board as long as the loan/interest of the National Dairy Development Board have not been fully repaid by the Federation.
18.2 The Chairperson of the Federation will be elected by the Board for the term of three years and he/she shall continue to hold his /her office till the new Chairperson is elected and takes over. He/ She shall be honorary Chairperson. In case the elected Chairperson vacates his/ her term or due to any other reason the post of Chairman falls vacant, the Board shall elect the new Chairperson for the remaining term.
The election of the Chairperson will take place in the first Board meeting of the Federation after the expiry of the term of the elected Chairperson or when the Chairperson's post falls vacant. In his/her absence, the meeting shall elected its own Chairperson for that meeting from amongst Page 32 of 34 C/SCA/16515/2013 CAV JUDGMENT the eligible members present. The Chairperson in such event shall exercise such power as may be delegated to him by the Board of Directors. The Managing Director of the Federation shall not be entitled to vote and contest the election for the post of Chairperson.
23. Powers and Functions of the Board:
The entire administration, management and control of the Federation shall be vested in the Board of Directors. The Board of Directors shall have and exercise all such powers and enter into all such agreements made, all such arrangements, take all such proceedings and do all such acts and things as may be necessary or proper for the due management of the Federation and for carrying out objects for which the Federation is established and for securing and furthering its interest subject to the provisions of the Act or such act as shall hereafter take its place and to any rules which may be passed by the State Government in pursuance of the said Act and subject also to these by-laws and/or any by-law which may be duly made by the Federation."
19.3 In view of above, the petitioner can not be heard to assert his right to continue as the Honorary Chairperson of the respondent No.3 Federation, in defiance of the very same by-
laws, through which, he had entered the said office. This contention is therefore rejected. Further, the craving of the petitioner, to be in the office for five years, is also pursuant to the Gujarat Co-operative Societies (Amendment) Act, 2013, which has come into force from 15.04.2013, and it is not Page 33 of 34 C/SCA/16515/2013 CAV JUDGMENT retrospective. Thus, this would not take the case of the petitioner any further. It is further recorded that, the point for consideration in this petition is not, whether the term of the post in question is of three years or of five years, but the point for consideration is, as to whether the petitioner can assert his right to be in the office of the Honorary Chairperson of the respondent Federation, even though No Confidence Motion is unanimously passed against him. This point is already answered above, and it is against the petitioner.
20. In view of above, it is held that, no illegality is found in the action of the respondent Federation, in considering and passing No Confidence Motion against the petitioner on 05.12.2013, and consequently removing him from the post of its Chairperson. No relief can be granted to the petitioner and the petition needs to be dismissed.
21. For the reasons recorded above, this petition is dismissed.
(PARESH UPADHYAY, J.) mhdave/1 Page 34 of 34