IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 7278 of 2001 with SPECIAL CIVIL APPLICATION NO. 5120 OF 2001 with LETTERS PATENT APPEAL NO. 1177 OF 2001 with LETTERS PATENT APPEAL NO. 1451 OF 1997 with CIVIL APPLICATION NO. 11524 OF 1997 For Approval and Signature: Hon'ble CHIEF JUSTICE MR DM DHARMADHIKARI and Hon'ble MR.JUSTICE J.M.PANCHAL and Hon'ble MR.JUSTICE N.G.NANDI ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : YES of the judgement? 4. Whether this case involves a substantial question : YES of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- NANDLAL BAVANJIBHAI POSIYA Versus DIRECTOR OF AGRICULTURE MARKETING & RURAL FINANCE -------------------------------------------------------------- Appearance: MR KS ZAVERI, MR ANSHIN H DESAI for Petitioners MR TUSHAR MEHTA for Appellants MR B.S. PATEL for Respondents MR B.M. MANGUKIYA for Respondent MR A.D. OZA, GOVT. PLEADER for respondents -------------------------------------------------------------- CORAM : CHIEF JUSTICE MR DM DHARMADHIKARI and MR.JUSTICE J.M.PANCHAL and MR.JUSTICE N.G.NANDI Date of decision:/02/2002 COMMON C.A.V. JUDGEMENT (Per : CHIEF JUSTICE MR DM DHARMADHIKARI) #. All these cases have been placed for hearing and decision before this Full Bench of Three Judges, on the order of reference made by the learned Single Judge in Special Civil Application Nos. 7278 of 2001 and 5120 of 2001 on 27-09-2001. #. The Letters Patent Appeal No. 1177 of 2001 arises out of an order of status quo passed by the learned Single Judge in Special Civil Application No. 9842 of 2001. Special Civil Application No. 5120 of 2001 and Letters Patent Appeal No. 1177 of 2001 are cognate matters concerning moving and passing of no confidence motion against the Chairman of Agricultural Produce Market Committee, Valsad. Special Civil Application No. 7278 of 2001 is also concerning moving and passing of no confidence motion against the Chairman of Junagadh Agricultural Produce Market Committee. Letters Patent Appeal No. 1451 of 1997 is concerning moving and passing of no confidence motion against the Chairman of Social Justice Committee under Section 123 of the Gujarat Panchayats Act, 1993. It is directed against the order of the learned Single Judge passed in Special Civil Application 3484 of 1997 in the case of Narmadaben V. Parmar v. Taluka Development Officer, Kheralu decided on 15-10-1997 and the judgment is reported in 1998(1) GLR 225. #. A common question of general importance arises in all these cognate matters. The question raised on behalf of the petitioners/appellants is, whether in the absence of express provisions, for moving and passing of a no confidence motion against the Chairman/Vice Chairman of Agricultural Produce Market Committee under the Gujarat Agricultural Produce Markets Act, 1963 and the Rules framed thereunder and the Chairman of Social Justice Committee under the Gujarat Panchayats Act and the Rules framed thereunder, such a motion can validly be passed. #. The learned Single Judge by separate orders passed in Special Civil Application No. 5120 and 7278 of 2001 concerning Valsad and Junagadh Market Committees respectively found that the decision of the learned Single Judge (M.S.Shah, J) in the case of Narmadaben V. Parmar (supra) in which reliance was placed on the Division Bench decision of this Court in the case of Chimanbhai R. Patel v. Anand Municipality and others reported in 1983 (1) GLR 67 is in conflict with the opinions expressed by other High Courts, i.e. Hindurao Balwant Patil and another v. Krishnarao Parshuram Patil and others reported in AIR 1982 Bombay 216 and Full Bench of Punjab and Haryana High Court in the matter of Jagdev Singh v. The Registrar, Cooperative Societies, Haryana and others reported in AIR 1991 P&H 149. #. At the out set, we consider it appropriate to record that as on the question raised before the learned Single Judge the earlier Single Bench decision of this Court in Narmadaben V. Parmar (supra) was relied on, in which reliance was placed on Division Bench decision of this Court in Chimanbhai R. Patel (supra) which was binding precedent on her, an order of reference to a Bench larger than of Two Judges was not required, unless the learned Single Judge would have expressed a dissenting opinion on the question of law involved in the case. None the less, since both the Letters Patent Appeals and Special Civil Applications raising a question of law of general importance have been placed before us, we proceed to decide the same on merits. #. Before dealing with the facts of each case in detail, we may take up first for decision the common question of law raised in this batch of Petitions and Appeals. #. A brief survey of the relevant provisions of the Gujarat Agricultural Produce Markets Act, 1963 and the Gujarat Agricultural Produce Market Rules, 1965 is necessary to consider the question raised on the subject of passing of no confidence motion against the holder of elective Office of Chairman and Vice Chairman of Market Committees. As the Preamble shows, the Act proposes to consolidate and amend the law relating to the regulation of buying and selling of agricultural produce and the establishment of markets for agricultural produce in the State of Gujarat. #. Section 2 contains the definitions of "agricultural produce", "agriculturist", "broker", "market", "market area" and other expressions used in the Act. Clause (xiv) of Section 2 defines "market committee" to mean a market committee established or deemed to be established under this Act. #. Section 11 of the Act provides that Market Committee shall consist of (i) eight agriculturists to be elected by members of managing committees of cooperative societies dispensing agricultural credit in the market area; (ii) four members to be elected in the prescribed manner from amongst themselves by the traders holding general licences; (iii) two representatives of the cooperative marketing societies situate in the market area and holding general licences to be elected from amongst the members of the managing committees of such societies; (iv) one member to be nominated by the local authority; and (v) two members to be nominated by the State Government. ##. A Market Committee constituted under Section 11 has to elect from amongst its members belonging to the class of agriculturists, traders or representatives of cooperative marketing societies, its Chairman and Vice Chairman. ##. Under Section 18, business of the Market Committee has to be conducted in accordance with the Rules which may also prescribe the quorum at the meetings. ##. Section 19 provides that every contract entered into by the Market Committee shall be in writing and shall be signed on behalf of the Market Committee by the Vice Chairman and two other members and it is only such contract when so executed shall be binding on the committee. ##. Section 17 to 19, being relevant for the decision of this batch of cases are quoted below: "17.(1) Every market committee shall elect one of its members from the members of the class specified in clauses (i), (ii) and (iii) of sub-section (1) of section 11 to be its Chairman and another member to be its Vice Chairman in such manner as may be prescribed. (2) The Chairman or Vice-Chairman may resign from office by tendering his resignation in writing to the market committee but it shall not [take effect until it is accepted by the Director or on the expiry of sixty days from the date of tendering the resignation whichever event occurs earlier. (3) A temporary vacancy in the office of the Chairman or Vice-Chairman shall be filled in such manner as may be prescribed. (4) The Chairman and Vice-Chairman shall exercise such powers and perform such duties and hold office for such terms as may be prescribed. 18. Save as otherwise provided in this Act, the business of a market committee (including the holding of its meeting) shall be conducted in accordance with the rules, which may also prescribe the quorum at meetings. 19. Every contract entered into by a market committee shall be in writing and shall be signed on behalf of the market committee by its Chairman and two other members, and no contracts not so executed shall be binding on it." ##. A reference has also been made on behalf of the petitioners to the provisions of Section 13 which provide for removal of members of Market Committee by the Director on recommendations supported by 2/3rd of the members of the committee on the ground of neglect or misconduct in discharge of duties or disgraceful conduct or incapacity to perform duties as member. Section 13 having been relied upon, the same is reproduced as under: "13(1) The Director may, on the recommendation of the Market Committee supported by at least two-thirds of the whole number of members by an order remove any member of the market committee elected or nominated under this Act, if after holding such inquiry as he may deem fit, the Director is of the opinion that such member has been guilty of neglect or misconduct in the discharge of his duties or of any disgraceful conduct or has become incapable of performing his duties as a member: Provided that no resolution recommending the removal of any member shall be passed by the market committee unless the member to whom it relates has been given a reasonable opportunity of showing cause why such recommendation should not be made; Provided further no order for removal of the member shall be passed by the Director unless the member has been given a reasonable opportunity of being heard. (2) A member so removed may, within 30 days of the date of communication thereof to him, make an appeal to the State Government. (3) The decision of the State Government on appeal made under sub-section (2) and, subject thereto, the decision of the Director under sub-section 91), shall be final." ##. Section 59 confers Rule making power on the State Government for the purpose of carrying out the provisions of the Act. In exercise of the Rule making power under Section 59, the State of Gujarat framed Gujarat Agricultural Produce Markets Rules, 1965. Procedure for election to the Market Committee is contained in Rules under Part III. The procedure for election to Chairman, Vice Chairman to Market Committee and appointment of Secretary, Officers and servants are contained under Part IV in Rules 31 to 41. ##. Under Rule 31, soon after constitution of a Market Committee, the Director himself or through his delegate may call a meeting of Market Committee to elect its Chairman and Vice Chairman from amongst members specified in clauses (i) to (iii) of subsection (1) of Section 11. Subrules (1) to (11) of Rule 31 contain detail procedure for conducting elections to the Office of Chairman and Vice Chairman. What is to be noted is that Chairman and Vice Chairman are elected by simple majority. Rule 33 which is directly on the point raised, fixes a term of two years for Chairman and Vice Chairman. It also provides for contingencies in which the Chairman and Vice Chairman shall cease to hold office and that the vacancy may be filled by fresh election. ##. Rule 33 being directly on issue deserves to be reproduced in full: "33. Term of office and casual vacancy in the office of Chairman and Vice-Chairman.-(1) Any person elected as Chairman or Vice Chairman shall hold office for two years from the date of his election as Chairman or Vice-Chairman as the case may be:- Provided that on the expiry of the term of office he shall continue to carry on the current duties of the Chairman, or Vice-Chairman, as the case maybe, till a new Chairman or Vice-Chairman, as the case may be, is elected and takes over charge of his duties: Provided further that if such person ceases to be a member of the market committee, he shall cease to hold the office of the Chairman or Vice-Chairman as the case may be. (2) In the event of the expiry of the term of Office of the Chairman or the Chairman dying, resigning or ceasing to hold the office for any reason before the expiry of his term of office, the Director, or any person, authorised by the Director in this behalf shall call a meeting of the market committee to elect another person as Chairman, from amongst its members of the class specified in clauses (i), (ii) and (iii) of sub-section (1) of section 11. The Director or the person so authorised shall preside over such meeting but shall not vote. Every Chairman elected under this sub-rule to fill a casual vacancy shall hold office for so long as the chairman in whose place he is elected would have held it if the vacancy had not occurred. (3) In the event of the expiry of the term of office of the Vice-Chairman or the Vice-Chairman, dying, resigning or ceasing to hold the office for any reason before the expiry of his term of office, the Chairman, shall call a meeting of the market committee to elect another person as Vice-Chairman from amongst its members of the class specified in clauses (i), (ii) and (iii) of sub-section (1) of section 11. The Chairman shall preside over such meeting and shall be entitled to vote. Every Vice-Chairman elected under this sub-rule to fill a casual vacancy shall hold office for so long as the vice-Chairman in whose place he is elected would have held it if the vacancy had not occurred. (4) Subject to the provisions of sub-rule (2) and (3), the provisions of rule 31, shall so far as may be, apply to the election of a Chairman or Vice-Chairman to fill up a temporary vacancy under this rule." ##. Rule 35 contains the procedure for conducting business of the Market Committee through meetings. Sub-rule (6) of Rule 35 provides that 1/3rd of the number of members of the Market Committee shall form a quorum for meeting of the Market Committee. ##. One more relevant provision is Rule 32 which provides the functions and powers of Chairman and Vice-Chairman and reads thus:- "32. Functions and powers of the Chairman and Vice-Chairman.-The Chairman or in his absence the Vice-Chairman, shall subject to these rules and directions if any given by the market committee, control and supervise the work of the market committee. The Chairman or in his absence the Vice-Chairman shall (i) preside over the meetings of market committee and conduct business at such meetings, (ii) watch over the financial and executive administration of the market committee, (iii) exercise supervision and general control over the acts and proceedings, of the employees of the market committee in matters of executive administration and in matters concerning the accounts and records of the market committee, and (iv) direct in cases of emergency the execution or stoppage of any work on the doing of any act which requires the sanction of the market committee." ##. On these relevant provisions of the Act and the Rules of Agricultural Produce Markets, the petitioners/appellants herein, who are facing or have faced no confidence motion for their removal from elected offices the learned counsel raise contentions as under: ##. It is submitted by learned counsel Shri K.S. Zaveri, Shri Nirupam Nanavati and Shri Tushar Mehta, who addressed the Court separately, that right to elect a leader of statutory body is essentially a statutory right conferred upon the electorate and can be exercised only in the manner as provided by the statutory provisions. The right to move and pass a no confidence motion, not being a common law right, cannot be inferred as an implied right, without existence of provisions in that behalf, in the law governing the constitution and functioning of such bodies. It is further submitted that whenever Legislature intended to confer a right on the electorate to recall or remove a person elected, it has specifically and unequivocally provided and conferred such right statutorily. Reference is made to Sections 56, 60 and 84 of the Gujarat Panchayats Act, 1993. Reading those provisions, it is pointed out that they specifically confer statutory powers upon the members of the Panchayat to move a motion of no confidence against the Sarpanch or the President, as the case may be, respectively of the Gram, Nagar and District Panchayat, while also safeguarding the possibility of the provisions being misused and seeking to protect the statutory tenure of an elected President being curtailed on extraneous grounds. For this purpose, a stringent provision is made providing that though such Sarpanch or President is elected by simple majority, he can be removed by a motion of no confidence passed by 2/3 majority and that too of total number of members (and not 2/3rd number of members present and voting in the motion). ##. So far as the no confidence motion moved and passed against the Chairman of Social Justice Committee of Taluka (which is the subject of LPA No. 1451/97 arising out of SCA No. 3484/97) is concerned, the learned counsel Shri Tushar Mehta referred to the provisions of Section 123 and 145 of the Gujarat Panchayats Act, 1993 to point out that both the provisions provide for constitution, tenure, functions etc of various committees to be constituted under Taluka Panchayats and District Panchayats. Attention is also invited to Sections 126 and 140 of the Gujarat Panchayats Act, 1993. It is pointed out that the procedure in respect of meetings of statutory committees is left to be provided by way of subordinate legislation in the form of statutory rules. Comparing provisions of the Gujarat Panchayats Act, it is sought to be demonstrated that while Sections 56, 70 and 84 provide for passing of no confidence motion, against Sarpanch or President, as the case may be, only by 2/3rd majority, Sections 96, 127 and 151 of the Act respectively for Gram, Taluka, and District Panchayats provide that all questions are to be decided by majority of votes and further confer power upon the President who presides over meetings to exercise and cast vote. Thus, reading the relevant provisions mentioned above of Agricultural Produce Markets Act and the Rules framed thereunder and the Gujarat Panchayats Act, the principal contention advanced is that whenever the competent legislature, has, in its wisdom, conferred right to move and pass no confidence motion upon the electorate to recall/remove the leader elected by them, the Legislature has enacted stringent procedural provisions laying down the manner of moving the motion, the strength required for moving the motion, corresponding right upon the elected persons to represent their views against the motion, strength required for passing the motion and also a provision that such a motion even if passed shall not take effect before three days of its passing. ##. Learned counsel Shri Tushar Mehta in support of his argument in LPA No. 1451/97 concerning passing of no confidence motion against the Chairman of Social Justice Committee of Taluka Panchayat, Kheralu submits that since the term of the Social Justice Committee is already over, the appeal on facts has been rendered infructuous. But since the Appeal is directed against the order of the learned Single Judge deciding an important question of law of moving and passing of a no confidence motion against Chairman of Social Justice Committee of Taluka Panchayat, it is necessary to press the Appeal, as the question is of recurring nature and one of interpretation of the provisions of the Gujarat Panchayats Act and the Rules. Elaborating his argument on the provisions of Panchayats Act and the Rules, learned counsel Shri Tushar Mehta in LPA 1451/97 submits that considering the scheme of the Act, the object behind providing for the statutory committees and the scheme of the above quoted provisions, it is clear that Legislature could never have envisaged a situation whereby though a Sarpanch or President can be removed by motion of no confidence only under specially framed stringent provisions, the Chairpersons of statutory committees can be so removed by a simple majority, without any stringent procedural safeguards, statutorily providing and permitting the person facing such motion even to exercise his casting vote. It is argued that the legislative intent is apparent by omission to make provisions for such removal/recall. It is a conscious and deliberate omission and therefore such a right cannot be read either as an implied right or an inherent right. On this aspect, it is further argued that even if it is assumed that there is a casus omissus or an inadvertent lapse in the provisions of the Act, such provision or principle cannot be read or supplied by the Court as that would be encroaching the sphere of legislation. It is submitted that such a right of passing no confidence motion cannot be inferred even by implication from the provisions of the Act, may be, that without such a right, sometimes, the elected holder of office losing confidence of the elected body finds it difficult to function efficiently. ##. Reliance is placed on the "Principles of Statutory Interpretation" by Justice G.P. Singh 2001 Edition pages 57 to 62, Crawford's "Statutory Interpretation" pages 269 to 272 and Craise on "Statute Law". Learned counsel argued that the omission in not providing for a power of moving and passing no confidence motion appears to be a deliberate legislative omission. It may be with the object of conferring unrestricted and uninterrupted tenure upon the person who is elected as the Chairperson. It is found necessary to give such an unrestricted and fixed tenure to the Chairperson so that he may not be forced to succumb to the politics of pulls and pushes of those who have elected him and he would be in a position to plan and implement the programmes, policies and causes in a phased manner spread over during his tenure and to ensure implementation of programmes and policies of the Social Justice Committee. ##. It is submitted that there are sufficient safeguards in the provisions of the Act to control the action of such Chairperson, if his acts are found either illegal, contrary to the provisions of the Act or against the interest of the body. These powers are conferred on the State Government and its Authorities to check misuse of power by the Chairperson. ##. Learned counsel Shri K.S. Zaveri and Senior counsel Shri Nirupam Nanavati appearing respectively for Chairmen of Market Committees in Valsad and Junagadh have also made submissions on similar lines and placed reliance on several decisions cited at the Bar, of which the following decisions are directly on the point and need to be discussed. ##. Heavy reliance is placed on the Division Bench decision of Andhra Pradesh High Court in the case of Veeramachaneni Venkata Narayana vs. The Deputy Registrar of Cooperative Societies, Eluru, West Godavari District and others reported in 1975 ILR 242; Full Bench decision of Punjab and Haryana High Court in the case of Jagdev Singh v. The Registrar, Cooperative Societies, Haryana and others reported in AIR 1991 P&H 149; Division Bench decision of Bombay High Court at Nagpur Bench in the case of Jehangir Bhikaji Panthaki vs. Corporation of the City of Nagpur reported in 1960 LLJ 99 and Division Bench decision of Bombay High Court in the case of Hindurao Balwant Patil and another v. Krishnarao Parshuram Patil and others reported in AIR 1982 Bombay 216. On the point of settled proposition that right to election is neither a fundamental or common law right, but it is a statutory right, reliance is placed on a decision of the Supreme Court in the case of Mohan Lal Tripathi v. District Magistrate, Rae Bareilly and others reported in AIR 193 SC 2042. ##. Learned counsel for the petitioners and the appellants question the correctness of the judgment of learned Single Judge in the case of Narmadaben (supra)