Indian Kanoon - Search engine for Indian Law

(PER : HONOURABLE MR.JUSTICE JAYANT PATEL)

1. As per order dated 6.1.2014 passed by the learned Single Judge of this Court, reference made to the Division Bench is on the following question:-

"Whether the decision of the Full Bench of this Court in the case of Nandlal Bavanjibhai Posiya (supra), and that of the Division Bench of this Court in the case of Motibhai R. Chaudhary (supra), and that of Single Judge in the case of Narmadaben V. Parmar (supra) can be said to have stood impliedly overruled, as perceived by this Court in the case of Babubhai Kalidas Patel (supra)?"

C/SCA/16515/2013 JUDGMENT

10. Thereafter, the learned Single Judge quashed the communication for convening of meeting for consideration of motion of no confidence. The relevant aspect is that at para 8.1 reproduced hereinabove the learned Single Judge found that the basis of the above referred three judgments of this Court in the case of Narmadaben V. Parmar (Supra), Nandlal Bavanjibhai Posiya (Supra) and Motibhai R. Chaudhary (Supra) are impliedly overruled by the decision of the Apex Court in the case of Pratap Chandra Mehta. The learned Single Judge after having recorded the conclusion that the above referred three decisions of this Court are impliedly overruled by the Apex Court, further proceeded to record independent finding at para 8.2 reproduced hereinabove and thereafter found that the order/notice/communcation in each of the petitions was without any authority in law and illegal.

27. So far as third contingency is concerned, one may say that observations were made by the Apex Court at paragraph 81 in the case of Pratap Chandra Mehta (supra) that the aid of General Clauses Act for exercise of such power may not be available.

28. We may now further examine the decision of the learned Single Judge of this Court in the case of Babubhai Kalidas Patel (supra). The concluding observations made by the learned Single Judge in the above referred decision at C/SCA/16515/2013 JUDGMENT para 8.1 reproduced hereinabove, shows and speaks for implied overruling by the decision of the Apex Court in the case of Pratap Chandra Mehta (supra) limited to the availability of power or the aid of General Clauses Act only and there is no consideration of the matter for applying the principles of implied overruling based on second contingency which has been so expressly considered by the Full Bench decision of this Court in the case of Nandlal Bavanjibhai Posiya (supra) and in other two decisions of this Court in case of Narmadaben (Supra) and Motibhai Chaudhari (Supra).

"It is fairly well settled that when reference is   made   on   a   specific   issued   either   by   a   learned   Single Judge or Division Bench to a larger Bench   i.e. Division Bench or Full Bench or Constitution   Bench,   as   the   case   may   be,   the   Larger   Bench  cannot adjudicate upon an issue which is not the   question referred." 

36. In view of the aforesaid observations and discussions, our answer to the question is as under:-

The decision of the Full Bench of this Court in the case of Nandlal Bavanjibhai Posiya (supra) and that of the Division Bench of this Court in C/SCA/16515/2013 JUDGMENT the case of Motibhai R. Chaudhary (supra) and that of the learned Single Judge in the case of Narmadaben V. Parmar (supra) can be said as impliedly overruled only limited to taking aid of the General Clauses Act, but cannot be said as impliedly overruled for consideration of the motion of no confidence in absence of any statutory provision provided for consideration of the motion of no confidence or in absence of any statute or rule prohibiting the consideration of motion of no confidence.