SCA/5343/2008 1/74 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5343 of 2008 With CIVIL APPLICATION No. 4607 of 2008 in SPECIAL CIVIL APPLICATION No. 5343 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE C.K.BUCH ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as 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 ? ========================================= Appearance : MR NAVIN PAHWA, LD.COUNSEL ON BEHALF OF M/S THAKKAR ASSOC. for Petitioners. MS DS PANDIT, LD.ASST.GOVERNMENT PLEADER for Respondent(s):1-2 MR SN SHELAT, LD.SENIOR COUNSEL WITH MR HARSHADRAY A DAVE for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH Date : 15/05/2008 COMMON CAV JUDGMENT 1. The present petition is preferred by the petitioners under Article 226 of the Constitution of India inter alia praying that this Court may issue appropriate writ, order or direction quashing and setting aside the SCA/5343/2008 2/74 JUDGMENT impugned order dated 14th March 2008 rendered by the respondent no.1 in Disqualification Reference Application No.14 of 2007. It is further prayed that this Court in exercise of powers vested in the Court under Article 226 of the Constitution of India may quash and set aside the impugned notice to show cause dated 07th January 2008 and the proceedings initiated apropos to the said notice. The said Application No.14 of 2007 filed before the respondent no.1 is the Reference Application filed by the respondent no.3 under the provisions of the Gujarat Provision for Disqualification of Members of Local Authorities for Defection Act, 1986 (hereinafter referred to as 'the Act') read with the provisions of Gujarat Provision for Disqualification of Members of Local Authorities for Defection Rules, 1987 and the Rules of the year 2007 (hereinafter referred to as 'the Rules'). 2. It is submitted by Shri Navin Pahwa, learned counsel appearing for the petitioners that the SCA/5343/2008 3/74 JUDGMENT petitioners are the Members of the Morbi Nagarpalika. The petitioners had participated in the General Board Meeting held on 02nd July 2007 and it is alleged that they had acted contrary to the mandate issued by the Party. So they have incurred disqualification as per the scheme of Section 3(1)(b) of the Act. Thereafter, one Reference Application was filed and the same was registered as Reference Application No.12 of 2007. The petitioners decided to challenge the show cause notice dated 18th July 2007 issued by the respondent no.1 on various grounds, more particularly on the ground that the annexures attached along with the petition were not verified as contemplated under Rule 6(5) read with Rule 6(6) of the Rules, by way of preferring Special Civil Application No.20042 of 2007 before this Court. After hearing the parties, this Court vide judgment dated 03rd September 2007 has quashed and set aside the notice to show cause holding that the issuance of notice is bad and the respondent no.1 ought to have dismissed the petition on the ground of non-compliance of the SCA/5343/2008 4/74 JUDGMENT Rule 6(5) read with Rule 6(6) of the Rules. The said decision of the learned Single Judge rendered in the case of Devabhai Parbatbhai Avadia and others v. P.D. Waghela-Competent Authority and others, is reported in the 2007(3) GLH 410. The respondent-orig. applicant of Special Civil Application No.20042 of 2007 preferred intra-court appeal being Letters Patent Appeal No.1927 of 2007 before the Division Bench of this Court. The Division Bench of this Court after hearing the parties disposed of the said Letters Patent Appeal by way of an oral order dated 28th November 2007 and directed the petitioners firstly to submit to the jurisdiction of the designated authority and to file reply to the notice to show cause on the issue of maintainability and further directed the petitioners to cite decision of this Court before the competent authority. For short, the respondent no.1 was directed to consider the reply and to dispose of the Reference Application by the end of December, 2007. It would be convenient to reproduce the relevant part of the order passed by the SCA/5343/2008 5/74 JUDGMENT Division Bench of this Court, which is as under : “ xxx xxx xxx Of course when show cause notice is issued to the petitioners, they should reply to the same. However, instead of filing reply to the show cause notice, petitioners have directly approached the learned Single Judge, after seeing the report that application is not in consonance with the Rules and that application should be rejected. It is true that if what Mr.Navin Pahwa says is correct i.e. if the application is defective, then it should be rejected and no show cause notice is to be issued to the petitioners, but in the present case, that has not been done. The fact however remains that application for disqualification has not been rejected by the Competent Authority. In the case in hand, even SCA/5343/2008 6/74 JUDGMENT reply has not been filed by the petitioners. Therefore, instead of going into the facts further regarding the issue, we deem it proper to direct the petitioners to file reply to the show cause notice on the issue of maintainability and show the rulings of this Court to the competent authority and also show the findings of the learned Single Judge in the impugned order. That reply be filed to the Competent Authority within ten days. The Competent Authority is directed that if the reply to the notice is filed as directed, the application be disposed of by the end of December, 2007. If it is found that the application is not maintainable, the same can be dismissed. However, if it found that the application is maintainable, then the petitioners will be at liberty to file further reply, and the Competent Authority shall proceed further in the matter in accordance with law.” SCA/5343/2008 7/74 JUDGMENT 3. After the aforesaid order dated 28th November 2007 passed by the Division Bench of this Court, the petitioners submitted their reply to the notice to show cause on 07th December 2007 to the respondent no.1 and the respondent no.1 while dealing with the contentions raised in the reply submitted by the petitioners passed orders and decided to reject the Reference Application No.12 of 2007 holding that the annexures attached to the application are not verified in the manner provided in Rule 6(5) read with Rule 6(6) of the Rules. This order passed by the respondent no.1 is on record at Annexure-D of the petition. In the petition at some places the number of Reference Application is mentioned as '12 of 2007' and at some places it is mentioned as '12 of 2008'. 4. The backbone of the submissions of the petitioners is that it was not open for the respondent no.1 to entertain a fresh application on the same grounds and same cause of action as of the Reference Application No.12 of 2007. However, the petitioners were served SCA/5343/2008 8/74 JUDGMENT with a notice to show cause dated 07th January 2008 referring to the Reference Application No.14 of 2007. On perusal of the copy of the application served to the petitioners, the petitioners realized that the Reference Application No.14 of 2007 is also filed on the identical grounds and on the same cause of action; and the respondent no.3-orig. applicant intends to rely on each of the documents placed while filing Reference Application No.12 of 2007 by the applicant of that application. The petitioners also realized that once again the annexures were not verified as required in view of the provisions of Rule 6(5) read with Rule 6(6) of the Rules. It was obligatory on the part of the respondent no.3 to see that each annexure is verified as provided under Order VI Rule 15 of the Code of Civil Procedure, 1908. All these documents were annexures. The petitioners intended to place reliance on these documents in support of their contentions in the application and absence of verification would make the Reference Application unsustainable. SCA/5343/2008 9/74 JUDGMENT 5. According to the petitioners, keeping in mind the binding decision of this Court and the order dated 26th December 2007 passed by the respondent no.1, the respondent no.1 ought not to have issued notice and, therefore, the petitioners approached the respondent no.1 and insisted that the Reference Application No.14 of 2007 may be rejected, but the respondent no.1 rejected the application of the petitioners vide impugned order dated 14th March 2008 and the petitioners were directed to appear before the respondent no.1 on 27th March 2008 at 03-30 p.m. for the purpose of hearing of Reference Application No.14 of 2007 on merit. According to the petitioners, in the interregnum period, the respondent no.3 herein made an application to the District Collector, Rajkot purportedly under Section 258 of the Gujarat Municipalities Act and the Collector was requested to pass a prohibitory order against the petitioners restraining them from participating in the General Board Meeting of Morbi Nagarpalika and the Collector, Rajkot SCA/5343/2008 10/74 JUDGMENT passed an ex-parte order restraining the petitioners from participating in the General Board Meeting which was scheduled on 24th March 2008. The petitioners immediately approached the Collector, Rajkot for vacating the prohibitory order. The petitioners thereafter approached the respondent no.1 on 27th March 2008 and requested for two weeks adjournment of the proceedings. However, the respondent no.1 granted only one day's adjournment and decided to hear the matter on 28th March 2008 at 03-00 p.m. It is the say of the petitioners that this type of conduct and the order passed, have compelled the petitioners to approach this Court. According to the petitioners, for the grounds mentioned in paragraph no.11 of the petition, the notice to show cause issued on 07th January 2008 and so also the order dated 14th March 2008 may be quashed and set aside and the disqualification proceedings initiated may be ordered to be terminated. 6. Shri Navin Pahwa, learned counsel appearing for the petitioners, has taken me through the SCA/5343/2008 11/74 JUDGMENT contentions raised in the memo of the petition and the documents produced in support of the same. If the arguments of Shri Navin Pahwa are put in nutshell, they are as under : 6.1 The respondent no.1 ought not to have entertained the Reference Application on the same grounds and on the same cause of action, more particularly, which is based on same set of documents in view of termination of proceedings of Reference Application No.12 of 2007. 6.2 In view of the aforesaid decision of this Court rendered in Special Civil Application No.20042 of 2007 preferred by the present petitioners- opponents of Reference Application No.12 of 2007, the respondent no.1 ought not to have issued even notice to show cause dated 07th January 2008 because it was apparently clear before the respondent no.1 that none of the annexures was verified though they were integral part of the Reference Application. SCA/5343/2008 12/74 JUDGMENT 6.3 The undue haste in disposing of the application preferred by the present petitioners for adjournment of the proceedings for some time, makes the impugned decision arbitrary and high- handed, and such a decision cannot sustain and requires to be quashed and set aside. 6.4 The scheme of Rule 6 of the Rules is mandatory and each annexure to the Reference Application requires to be signed by the applicant and also requires to be verified in the same manner as the main Reference Application i.e. verification which is required under Order VI Rule 15 of the Code of Civil Procedure, 1908. Indisputably, none of the annexures in Reference Application No.14 of 2007 is verified. 6.5 It is observed in more than one decision, including the decision where the learned Single Judge of this Court has rendered decision in favour of the petitioners that strict compliance of Rules 6(5) and 6(6) of the Rules is mandatory and in this background the respondent no.1 ought to have allowed the SCA/5343/2008 13/74 JUDGMENT Application preferred by the petitioners praying for rejection of the Reference Application on this ground. Shri Navin Pahwa, learned counsel appearing for the petitioners, has placed reliance on Rule 7 of the Rules which prescribes procedure, and it is argued that on receipt of the Application under Rule 6 of the Rules, the respondent no.1 is under obligation to consider as to whether the application is in compliance of the requirement of Rules or not. If the application does not comply with the requirement of Rule 6 of the Rules, the respondent no.1 shall have to dismiss the application and intimate the petitioners accordingly. So without issuing the notice to show cause dated 07th January 2008, the respondent no.1 ought to have dismissed the application, but he has failed in doing so though the petitioners had pointed out this glaring infirmity. 6.6 The respondent no.1 was supposed to enter neither into the merits and contents of the application nor the annexures attached thereto. SCA/5343/2008 14/74 JUDGMENT Technically the application was required to be dismissed for non-compliance of the mandatory Rules. 6.7 It is argued that the competent authority has jurisdiction to deal with the Reference Application if the same is preferred in compliance of the statutory Rules. So the attempt to deal with such an infirm or incomplete application is an act without jurisdiction and, therefore, this Court may interfere, and quash and set aside the impugned the order. 6.8 The aforesaid judgment of the learned Single Judge has been confirmed by the Division Bench of this Court while disposing of Letters Patent Appeal No.1927 of 2007, decided on 28th November 2007. The respondent no.1 ought to have rejected the application and there was no good reason, legal or logical, for the respondent no.1 to rely upon the decision of the Apex Court in the case of Dr. Mahachandra Prasad Singh v. Chairman, Bihar Legislative Council and others, reported in AIR 2005 SC 69. The act of placing reliance on the decision of the Apex SCA/5343/2008 15/74 JUDGMENT Court is misconceived on facts as well as in law. The Apex Court was dealing with the facts where the authority was dealing on the strength of the powers conferred upon it under 10th Schedule of the Constitution of India and the observations made by the Apex Court in the case of Dr.Mahachandra Prasad Singh (supra) may be viewed in reference to one another decision referred to in the case of Ravi S. Naik v. Union of India, reported in AIR 1994 SC 1558. 6.9 It is submitted that in view of the earlier judgment of the learned Single Judge, another learned Single Judge while dealing with Special Civil Application No.9003 of 2007 ought not to have given different verdict and the said petition i.e. Special Civil Application No.9003 of 2007, was required to be referred to the Larger Bench and, therefore, the decision rendered on 28th March 2008 by this Court (Coram : C.K. Buch, J) in Special Civil Application No.9003 of 2007, would not help the respondent no.3. Shri Navin Pahwa has placed reliance on the observations made by the Apex Court in the case of Somabhai Mathurbhai Patel SCA/5343/2008 16/74 JUDGMENT v. New Shorrock Mills, reported in 1983 GLH 273, whereby the Apex Court has held that the decision of Single Judge of a High Court is binding on another Single Judge of the same Court and it is further observed that in the case of disagreement, the matter should be referred to the Larger Bench. 6.10 Shri Navin Pahwa, learned counsel appearing for the petitioners, has also relied upon the observations made by the Apex Court in the case of State of N.C.T. Of Delhi and another v. Sanjeev alias Bittoo, reported in AIR 2005 SC 2080 and has concentrated his arguments on the point that the decision under challenge can be taken under judicial review. The relevant paragraph no.18 of the cited decision read over by Shri Navin Pahwa before this Court is reproduced as under : “18. The Court will be slow to interfere in such matters relating to administrative functions unless decision is tainted by any vulnerability SCA/5343/2008 17/74 JUDGMENT enumerated above; like illegality, irrationality and procedural impropriety. Whether action falls within any of the categories has to be established. Mere assertion in that regard would not be sufficient.” 6.11 The impugned order passed by the respondent no.1 is in complete defiance of the binding decision of this Court. Not only that but the authority has ignored its own decision rendered by it in pursuance of the order passed by the Division Bench of this Court. It is relevant to note that no formal submissions have been made by Shri Navin Pahwa in reference to Grounds 'C' and 'D' mentioned in paragraph no.11 of the petition and he has submitted that the petitioners reserve their right to agitate this point as and when the occasion to that effect so arises; and the submissions in reference to statutory Rules have been made without prejudice to such rights to point out the factual controversy as to issuance of mandate, its service, etc. SCA/5343/2008 18/74 JUDGMENT 7. The main contesting respondent i.e. respondent no.3, has filed his reply affidavit at page no.133 of the petition and has responded to all the contentions. It is submitted that the respondent no.1 was under obligation to look into the matter while dealing with the Reference Application preferred by him, more particularly, in view of the following points: (i) That the petitioners themselves have on oath stated before the Respondent No.1 in Application No.13 of 2007 that such mandate exists and on the basis of the said mandate the petition is preferred by disqualification of the 13 members of the Party. (ii) That it is undisputed that the said matter is heard on the basis of the mandate which the petitioners are now disputing. (iii) That the petitioners are estopped from raising such contention before this Court after having accepted the SCA/5343/2008 19/74 JUDGMENT mandate on oath before the Competent Authority. 8. Thus, the respondent no.3 has brought a legitimate dispute and he has an independent right or privilege to file Reference Application. Shri S.N. Shelat, learned senior counsel appearing with Shri Harshadray A. Dave for the respondent no.3, has argued in detail and has responded to each of the submissions made by Shri Navin Pahwa, learned counsel appearing for the petitioners. The submissions of Shri S.N. Shelat if are put in nutshell, are as under : 8.1 The Reference Application No.14 of 2007 is a verified application and the same is supported by way of the affidavit. So the basic document i.e. application, received by the respondent no.1 was a duly verified document. 8.2 Unless a document is an integral part of the Reference Application, the same is not required to be verified. The documents which can be SCA/5343/2008 20/74 JUDGMENT placed before the respondent no.1 in the proceedings are found to have been categorized in two separate categories. The first category is a set of documents referred to in Rule 6(4) of the Rules and the second category of the documents is the documents referred to in Rule 6(6) of the Rules. Shri S.N. Shelat has taken me through the contents of paragraph no.10 of the application at page no.90, wherein it is stated by the respondent no.3 that the applicant intends to rely upon the documents enlisted and produced in support of contents of the application. It would be beneficial to reproduce the said paragraph no.10 in vernacular Gujarati language as under: “ 8.3 It is further submitted that the affidavit of the respondent no.3 is at page no.91 of the petition, which was submitted to the respondent no.1. This Court while appreciating the arguments of Shri Navin Pahwa, learned counsel SCA/5343/2008 21/74 JUDGMENT appearing for the petitioners, may consider the title of the list of documents tendered to the respondent no.1 which is at page no.92. It is no where stated by the petitioners that any of the documents may be treated as integral part of the petition. Shri S.N. Shelat has taken me through the Rules 6(4) and 6(6) of the Rules. 8.4 It is submitted that the Division Bench of this Court while dealing with Letters Patent Appeal No.1927 of 2007 cannot be said to have upheld the finding recorded by the learned Single Judge. On the contrary, the Division Bench had directed, instead of confirming the quashing of notice to show cause and initiating the entire proceedings, that the petitioners should submit to the jurisdiction of the respondent no.1 and convince him that the provisions of Rules 6(5) and 6(6) of the Rules are mandatory in nature and, therefore, the respondent no.1 was supposed to dismiss the application preferred by the petitioners in limine in view of Rule 7 of the Rules. True it is that ultimately the respondent no.1 decided in favour of the SCA/5343/2008 22/74 JUDGMENT petitioners when they were opponents in Reference Application No.12 of 2007. 8.5 The principle of res judicata or estoppel shall have no role to play. Each elected member sitting in the House can pray for disqualification of any sitting Member and can satisfy independently in his personal capacity that a member in particular or group of members have incurred disqualification. There was a clear distinction between the set of documents produced in Reference Application No.12 of 2007 and the second Application i.e. Reference Application No.14 of 2007. In the proceedings of Reference Application No.12 of 2007, the respondent no.1 was satisfied that the application suffers from statutory infirmity and, therefore, the contentions of the present petitioners were accepted. On the precedence, the argument advanced by Shri Navin Pahwa is not sustainable. According to Shri S.N. Shelat, the decision of this Court cannot be said to have any binding force, more particularly when the facts were a bit different while dealing SCA/5343/2008 23/74 JUDGMENT with the Reference Application No.14 of 2007. The Reference Application No.14 of 2007 is an application duly verified. The oral evidence of the applicant in the nature of affidavit was also there before the respondent no.1; and in support of the contentions raised in the application, the respondent no.3 had produced a set of documents as provided under Rule 6(4) of the Rules. It is no where averred that any of the documents produced by the respondent no.3 may be read and considered as part of the petition or may be treated as annexure to the petition. Each document produced in support of the application may not be the annexure and, therefore, the documents are to be categorized differently. 8.6 Shri S.N. Shelat has submitted that when the learned Single Judge decided the earlier petition preferred before this Court by the present petitioners in the proceedings of Reference Application No.12 of 2007, perhaps the aforesaid judgment of the Apex Court in the case of Dr.Mahachandra Prasad Singh (supra) was SCA/5343/2008 24/74 JUDGMENT not placed before the learned Single Judge and the respondent no.1 was supposed to consider the ultimate effect of the decision of this Court in the background of the judgment of the Apex Court; more particularly when the facts in Reference Application No.12 of 2007 are a bit different because in the Reference Application No.14 of 2007 i.e. application preferred by the respondent no.3, each document produced in support of the application was signed at the bottom of the page, which was not there in the earlier proceedings. It is submitted that this Court, of course, has not referred to the decision of the Apex Court in the case of Dr.Mahachandra Prasad Singh (supra) in particular, but has observed that the provisions of Rules 6(5), 6(6) and 6(7) of the Rules are directory and there is no element of mandamus. The use of word