Case: Babubhai Muljibhai Patel Vs. Nandlal Khodidas Barot &amp; Ors

matter and started an enquiry on their own."Some inscrutable purpose has animated the police officers to investigate into what was altogether beyond their pale. If such unwarranted police intrusions into municipal doings were left uncriticised, the peril to the citizen and to public institutions is obvious. It strikes me that the State Government will enquire into how such officious police interference occurred and whether there was any sinister savour about it.29. Our elected local bodies are expected to be self-governing units (Article 40 of the Constitution). If these grassroots institutions pervert themselves, small wonder that power at higher levels, betrays popular trust. In the present case, certain incontrovertible facts need mention to appreciate my apprehensions about this tiny municipal administration having become a plaything of factious politics with under-currents of personal conflicts and overtones of economic interests.30. The Kalol Municipality is a small town and the wheels of its politics are alleged to be linked with the economics of industrial unit the Navjivan Mills While rival versions are asserted before us (neither, if true, being complimentary), it is pertinent that, out of a strength of 25, one of the councillors is a peon of the Mill, three of them other employees and a fifth, connected with it. Both sides allege, although with conflicting projections, that between the presidential election in 1970 and the toppling tremors within two years, the estrangement between the Mill management and the appellant had developed. While the Mill group voted with the appellant to oust him President, they swung to elect him from office in May, 1972. Without examining the veracity of either Partys version one may express the hunch that the economic interests of that industry must have had some sort of influence over the working of the Kalol Council.31. From the inception, the appellant and the 1st respondent, have been fighting for power and, in the first round, the former won, on November 1, 1970. Nevertheless, some councillors appear to have concentrated on power-grab and, as part of this political circus, created confusion at municipal meetings. It is equally clear, from the judgment of the High Court"that in respect o by the petitioners group on the other hand"The Court has further stated that the appellant, apprehensive of his eroding majority had ruled out many motions.He has converted them (rule-outs) into an instrument to negative the will of the majority and to cajole them into submitting to him. We are constrained to say that there cannot be an uglier, more distasteful, more disagreeable and more distorted form of democracy than one we have seen on evidence in the civic affairs of Kalol....The town has been helplessly witnesseing unseemly duels amongst the city fathers which have brought all progress and normal administration to a standstill. It also appears from the record of the case that no meeting of the municipality could be held except under police protection."32. The fluctuation fortunes and the fluid loyalties emerging from the diary of events makes disturbing reading. The learned Judges of the High Court notice that while the petitioner-appellant defeated respondent No.1 on November 1,1970 that event sparked off not collective functioning for the common good, but combats for group cornering of positions. "On December 10, 1970 Kalol Municipality adopted a motion for disqualifying the petitioner (respondent No.1 here) form the councillorship and passed it". However, "on June 1972, a resolution was passed by 23 councillors of Kalol Municipality voting against the petitioner,(1st respondent herein) being disqualified by the State Government". We have it further from the judgment of the court below that"On October 12, 1972 respondent No. 1 (appellant before us) admitted lost his majority. On December 4, 1972 a resolution came up for consideration before the Municipality to reduce the term of respondent No.1 (appellant herein), as President of the Municipality, from 5 years to 2 years"The chaos in that tiny cosmos is self-evident Presumably some citizens were exasperated at these happening and "on February 18 a public meeting was held in the Kalol Town Hall". A leaflet issued in connection with that meeting mentions that"a tug-of-war has been going on in the Kalol Municipality between two groups and that the meeting of the citizens was called for the purpose of considering the situation arising out of it."From the materials on record, it is legitimate to draw the inference that the citizens meeting gave a mandate to some councillors to act with the majority in the interests of civic welfare. We have one more fact of grave import. An earlier no-confidence motion passed by 16 councillors was held by the High Court to be numerically deficient by one, to make up the 2/3rds majority. And at the second no-confidence motion, as we have already held, one who otherwise had supported the appellant, switched loyalties. These are distressing testimony to pollution in public life.33. Kalol is not alone nor is the politics of jockeying a local syndrome. If the municipal microcosm has put self above service, wearing the mask of public office, the national macrocosm will eventually magnify the vice, and once popular mistrust of democracy spreads voices in the whispering gallery will be heard: "Mischief, thou art afoot, take what course thou wilt." If this small municipality needs policemen to hold its meetings, periodically exercise itself in the fine art of defection and false minutes perhaps allows the interests of a Mill to sway its affairs and compels the holding of public meetings to command its elected representatives to behave, themselves political democracy is moving towards the evening of long shadows. Laws and Courts are not the remedy for this malady, but better man and basic morality when ballots are sought. "Remember." said John Adams," remember, democracy never lasts long. It soon wastes. exhausts and murders itself. There never was a democracy that did not commit suicide.*The appeal we are dismissing is socio-legally symptomatic.*Quoted by Hidayatullah, J. (as he then was) in Democracy in India and the Judicial Process-Lajpatrai Memorial Lecture Series- 1965 - Asia publishing House P.16.34.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]8. On behalf of the appellant his learned counsel, Mr. Amin, has at the outset contended that as the dispute between the parties in this case involved questions of fact, the High Court should not have entertained the writ petition filed by the respondent No.1 but should have referred the parties to a separate suit.This contention, in our opinion, is not well founded. No plea was admittedly taken in the return filed on behalf of the appellant in reply to the writ petition that respondent No.1 should be directed to seek his remedy by means of a suit because of disputed questions of fact. In the absence of such a plea, the appellant, in our opinion, cannot be heard to say that the High Court should have relegated respondent No.1 to the remedy of a suit. Apart from that we find that the term of the appellant as the President of the municipality would have expired in 1975. The trial of a suit, in the very nature of things, would have taken considerable time. Appeal and second appeal would have also been filed by the unsuccessful party in the case. Had respondent No.1 been directed to seek his remedy by way of a suit, the relief secured by respondent No.1 even if he had succeeded in the suit would have been wholly illusory because by the time respondent No.1 would succeed in the litigation, the term of the office of the President would have either already expired or be about to expire. The appellant in that event would have continued as the President of the municipality even though he had ceased to enjoy the confidence of the requisite number of councillors and they had passed a motion of no confidence against him. The entire concept of a democratic institution would thus have been set at naught. We agree with the observations of the High Court that the purpose underlying the petition would have been completely defeated in case respondent No.1 had been relegated to the ordinary remedy of a suit and that such remedy was neither adequate nora case like the present where as many as 40 persons filed affidavits in support of one party and 27 persons filed affidavits in support of the opposite party, the High Court, in our opinion, was well justified in the exercise of its discretion in selecting such persons whom it considered to be really important and crucial for the purpose of cross-examination. The effect of permitting cross-examination was not that the High Court was divested of all discretion and control in the matter and was bound to call for cross-examination each and every deponent who was named by either party. We have reproduced above the material part of order dated September 19, 1973 and it would appear therefrom that the High Court selected for cross-examination five of those councillors who, according to respondent No.1, were present in the meeting wherein the motion of no confidence was alleged to have been passed but who, according to the appellant, were not present in that meeting. These five councillors had filed affidavits in support of the case of respondent No.1. In addition to these five councillors, the High Court selected Babubhai Dahyabhai Khamar, local correspondent of Gujarat Samachar, wo claimed to have been present in the Council Hall at the time of the above meeting and who sent a report about the proceedings of that meeting to the Gujarat Samachar. From amongst the deponents who had filed affidavits in support of the case of the appellant, the High Court selected for cross-examinations Chandulal Chhotalal Barot, Vice President of the municipality who, according to the appellant, presided over that meeting as well as Councillor V. S. Patel, who claimed that he was not present in the above meeting but who, according to respondent No.1, was present in that meeting and had supported the motion of no confidence. Looking to all the facts of the case, we are of the opinion that the discretion exercised by the High Court in selecting for cross-examination those deponents whom it considered to be crucial was proper and judicious. No prejudice, in our opinion, was caused to any of the parties by the procedure adopted by the High Court. We would, therefore, hold that order dated September 19, 1973 made by the High Court does not suffer from any infirmity.11. Mr. Amin then submits that the deponents called for cross-examination should have been examined-in-chief and thereafter cross-examined. The production of those witnesses simply for cross-examination was not warranted bywould appear from the above that all that the appellant himself prayed in his application was that the deponents mentioned by him should be offered for cross-examination and not that those witnesses should be examined-in-chief and thereafter cross-examined. No grievance could, therefore, have been made by the appellant if the deponents had not been examined-in-chief but had been simply cross-examined. As things however are, we find that when the deponents concerned were produced in court, they were examined-in-chief and thereafter there was cross-examination. In the course of their examination-in-chief the deponents stated about their having sworn their affidavits and about the correctness of the contents of those affidavits. It might in the circumstances have appeared to the unnecessary duplication to ask those deponents to repeat what had been stated by them in their affidavits.12. We are also not impressed by the argument of Mr. Amin that as cross-examination of only 8 deponents had been permitted, the affidavits of others who were not cross-examined could not be taken into consideration. The High Court permitted cross-examination of such of the deponents in respect of whom it came to the conclusion that their cross-examination was essential for arriving at the truth of the matter. It did not, however, follow from that the High Court was precluded from taking into consideration the affidavits of other deponents. Order permitting cross-examination of some of the deponents did not have the effect of obliterating from record the affidavits of other deponents and we find nothing wrong in the approach of the High Court in relying upon the affidavits of deponents who were not cross-examined if on conspectus of the entire circumstances of the case it found the averments in those affidavits to be true.13. Mr. Amin has next challenged the correctness of the finding of the High Court that 17 councillors had supported the motion of no confidence. It is submitted that the version of the appellant regarding what transpired in the meeting of May 6, 1973 is correct. The High Court, according to the learned counsel, was in error in relying upon the version of respondent No.1. In particular, Mr. Amin submits that V. S. Patel councillor was not present in that meeting. The presence of Councillor Kantilal Chhganlal Shah in the meeting has also been questioned. In this respect we find that the High Court has relied upon the affidavits of 16 councillors who in the course of their affidavits stated that 17 councillors including those councillors themselves had voted in the meeting held on May 6, 1973 in support of the motion of no confidence. Out of those 16 councillors, 15 were admittedly in Kalol on that day. They having sined the motion of no confidence, there was in the opinion of the High Court, no reason why they should not be present in that meeting. As regards the presence of Councillor Kantilal Chhaganlal Shah the High Court relied upon his affidavit wherein he stated that he was present in the meeting and had voted in support of the motion of no confidence and found that his deposition had not been shaken in cross-examination. Regarding Councillor V. S. Patel about whom the case of respondent No.1 was that he had supported the motion of no confidence while that of the appellant was that he was not present in the meeting, the High Court observed that the material on record pointed to the conclusion that he had supported the motion of no confidence. The High Court in this context relied upon the version given by Chief Officer R. D. Barot, who was admittedly present in that meeting, as well as the statement of Babulal Dahyabhai Khamar, press correspondent. After having heard Mr. Amin at considerable length, we find no sufficient ground to interfere with the appraisement of the depositions and other materials on record by the Highis no doubt true that according to the form prescribed the ground for the motion of no confidence has to be mentioned in the notice of intention to move a motion of no confidence. It does not, however, follows therefrom that the ground must also be specified when a motion of no confidence is actually passed against a President. It is pertinent in this context to observe that there is a difference between a motion of no confidence and a censure motion. While it is necessary in the case of a censure motion to set out the ground or charge on which it is based, a motion of no confidence need not set out a ground or charge. A vote of censure presupposes that the persons censured have been quietly of some impropriety or lapse by act or omission and it is because of that lapse or impropriety that they are being censured. It may, therefore, become necessary to specify the impropriety or lapse while moving a vote of censure. No such consideration arises when a motion of no confidence is moved. Although a ground may be mentioned when passing a motion of no confidence, the existence of a ground is not a prerequisite of a motion of no confidence. There is no legal bar to the passing of a motion of no confidence against an authority in the absence of any charge of impropriety or lapse on the part of that authority. The essential connotation of a no confidence motion is that the party against whom such motion is passed has ceased to enjoy the confidence of the requisite majority of members.Mr. Amin has next assailed the finding of the High Court that the Collector had no jurisdiction to make an inquiry and pass order dated June 9, 1973. It is, in our view, not necessary to express an opinion on this aspect of the matter as Mr. Amin has not during the course of arguments assailed the other finding of the High Court that the procedure adopted by the Collector was violative of the principle of natural justice. In view of this latter finding, the order of the Collector dated June 9, 1973 was in any event liable to be quashed.20. Mr. Dhebar, who has appeared on behalf of the Collector, has submitted that the Collector was not actuated by any oblique motive in passing order dated June 9, 1979. We agree with Mr. Dhebar that there in no cogent material on record to show that the Collector was actuated by any oblique motive when he passed that order. The fact that the procedure adopted by him was violative of the principles of natural justice might show an error of judgment, but from that it cannot be inferred that the Collector was motivated by ulterior consideration.21. There is, in our opinion, no force in the appeal which fails and is dismissed with costs.