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

2. Kalol Municipality in district Mehsana has 25 councillors. The appellant was elected President of the said municipality with effect from November 1, 1970. The term of the President is for a period of five years. On November 1, 1972 respondent No.1 moved a motion of no confidence against the appellant Sixteen councillors belonging to the group of respondent No.1 voted for the motion and two counciloors belonging to the group of the appellant voted against it. The Vice President of the Municipality who was in the chair declared that the no confidence motion had failed for want of two-thirds majority of the total number of councillors. In his view, 17 councillors out of 25 constituted the requisite two-thirds majority contemplated by Section 36 of the Gujarat Municipalities Act,On April 21, 1973 a requisition signed by 16 councillors, including respondent No.1 was sent to the President Kalol Municipality for convening a special general meeting of the municipality to consider a motion of no confidence against the appellant as the President of that municipality on the followingact of writing false and concocted proceedings of the meeting dated 27-3-1973 amounts to the crime of forgery and is highly unbefitting your status as President of the Municipality".In accordance with the above requisition, a meeting of the Kalol Municipality was convened for May 6, 1973 at 6 p.m. There are conflicting versions of what transpired in that meeting. According to the appellant, 13 councillors were present in that meeting. One of them was the appellant and the other was Chandulal Chhotalal Barot, Vice-President of the municipality, who also belongs to the group of the appellant. Eleven others belonging to the opposite group were present in that meeting. As the meeting was to consider a motion of no confidence against the President, Chandulal Chhotalal Barot Vice-President presided over the meeting. The Vice-President in the course of his ruling observed that the ground which had been given in support of the motion of no confidence was fabricated, false and without truth. It was further observed in thattherefore, rule out the cause contained in this motion and declare that they are not relevant to the present motion. However, I place this for voting without there being existence of anyreading out the ruling, the Vice-President recorded a note in respect of the minutes of that meeting and the same reads asaforesaid ruling was read over in the meeting and in taking votes on the motion without the aforesaid point, nobody showed hand in favour of the motion and there were two votes against the motion viz., (1) Shri B. M. Patel and (2) Shri C.C. Barot. As there were not legaly sufficient number of votes, i.e. 17 votes in favour of the motion, the said no confidence motion is not passed and is declared to have been rejected.Date 6-5-1973 time 6.15 p.m.On todays business of the meeting being over as above, the meeting is dissolved and having declared accordingly in the Board, the members dispersed.Date : 6-5-1973 Sd/- Barot Chandulal Chhotalal, Vice-President, Kalol>As against the above version, according to respondent No.1, 19 councillors were present in that meeting. They included the appellant, Vice-President Barot and two councillors Kantilal Chhanganlal Shah and Vithalbhai Somabhai Patel, to whom reference would be made hereafter. What transpired in that meeting according to respondent No.1 was given in the note of councillor N. S. Parmar who was alleged to have presided over the meeting after the walk out of the appellant and the Vice-President. The note of N.S. Parmar reads as under:"Today a Special General Meeting was called to discuss a motion of no confidence against the President Shri B. M. Patel. As the no confidence motion was to be discussed against the President Shri B. M. Patel, the Vice-President Shri C.C. Barot had presided over the meeting. He (the Vice-President) directed the Chief Officer Shri R. D. Barot as well as the Secretary Shri Thakkar not to write the proceedings of todays meeting in the proceeding book."I shall make a note in the rough sheet myself.The members raised a protest against this and the protest having become severe and there being circumstances enabling the meeting to pass a motion of no confidence as per the required legal two-thirds majority,the Chairman, Shri C.C. Barot, and the President Shri B.M. Patel have walked out of the Council Hall. The other remaining members are present. The chairman of todays meeting Shri C.C. Barot has not taken on hand the motion of no confidence for discussion in todays meeting.He has also not taken votes of the members as per law on the motion. There being a position of the motion of no confidence being carried by the required legal majority, I propose the name of Shri Narayanabhai Sadabhai Parmar to preside over the meeting and to go ahead with the business of the meeting.Proposed by Girish M. BhattandSeconded by Shah Rameshchandra Ramanlal.The above motion being supported by unanimously 17 members 1 perside over todays meeting and take on hand the business of the agenda.Sd/-N. S. ParmarPresiding Authority,Kalolon May 6, 1973 Vice-President Barot sent a telegram to the Collector giving his version of the meeting. Report was also sent on the same day, i.e. May 6, 1973 by R.D. Barot, Chief Officer Kalol Municipality to the collector stating that a resolution had been passed against the appellant as President of the Municipality. It was stated that a vacancy in the office of the President of the municipality had arisen and election to that office be held.5. The appellant as the President of Kalol Municipality convened a meeting of the municipality for May 18, 1973. A day before that on May 17, 1973 respondent No.1 filed the present petition under Article 226 of the Constitution in the Gujarat High Court praying for the issue of a writ of quo warranto for ousting the appellant from the office of the President of the Kalol Municipality and for declaring that the said office had fallen vacant in view of the motion of no confidence having been passed on May 6, 1973. Prayer was also made that the appellant be directed not to preside over the meeting fixed for May 18, 1973. During the pendency of the petition before the High Court, the Collector of Mehsana to whom conflicting version of the proceedings of the meeting of May 6, 1973 had been sent held an inquiry and, as per order dated June 9, 1973, came to the conclusion that Councillor Vithalbhai Somabhai Patel was not present in the meeting held on May 6, 1973. Reliance in this connection was placed upon the affidavit filed by Patel that he was not present in that meeting. The Collector also took into account the fact that the signatures of the 17 councillors who were alleged to be present in that meeting had not been obtained. It was further observed that after the meeting presided over by the Vice-President had terminated, no meeting could be legally held under the chairmanship of N.S. Parmar. The concluding part of the order of the Collector reads asview of what is discussed above I come to the conclusion that the alleged no confidence motion against the President Shri B. M. Patel has not been validly passed. The very validity of the meeting held under the chairmanship of Shri N.S. Parmar is doubtful and it is beyond doubt that Shri V. S. Patel did not attend and vote for no confidence motion and thus the alleged motion was not supported and voted by more than 2/3rd of the total number of councillors of Kalol Municipality, the office of the President has not, therefore, fallen vacant and hence no action requires to be taken on communication of Shri R. D.the Collector had made the above order, the writ petition filed by respondent No.1 was amended so as to include also a prayer for the quashing of the above order.6. The above writ petition was resisted by the appellant. During the pendency of the writ petition, a number of affidavits were filed on behalf of respondent No.1 as well as on behalf of the appellant. The number of persons who filed affidavits on behalf of the appellant has been stated to be 27 and of those who did so on behalf of respondent No.1 to be 40. The affidavits filed on behalf of respondent No.1 included those of 16 councillors of Kalol Municipality, while those filed on behalf of the appellant included those of nine councillors. Respondent No.1 also filed the affidavit of Babubhai Dahyabhai Khamar local correspondent of Gujarat Samachar, a daily of Ahmedabad. Khamar, according to respondent No.1, was also present in that meeting. On September 19, 1973 the learned Judges of the High Court passed an interlocutory order for the production of six persons who had filed affidavits on behalf of respondent No.1 and two persons who had filed affidavits on behalf of the appellant for cross-examination. The material part of that order reads ashave heard this petition which runs into about 700 pages. We have noticed from the affidavits on record that there are sharp divisions amongst the councillors of the Kalor Municipality, amongst the citizens of Kalol, amongst the employees of the Kalol, Municipality and even amongst the press reporters. In order therefore that the situation may be cleared and more elucidation of the problem with which we are concerned may be had on record it is necessary that some of the principal deponents who have made affidavits in this case on either side should be cross-examined by the opposite party. (1) Hussenmiya Hasanmiya Sayed, (2) Revabhai Lalabhai Parmar, (3) Babulal Somchand Shah, (4) Shantiben Ramchandra Barot, (5) Kantilal Chhaganlal Shah and (6) Babubhai Dahyabhai Khamar have made affidavits in favour of the petitioner. The first five persons are the councillors of the Kalol Municipality who, according to the petitioner, were present at the meeting of the Municipality held on 6th May, 1973 when motion of the Municipality against the Chairman respondent No.1 was moved. According to the petitioner, they had voted for the no confidence motion. According to the respondent No.1, they were absent and, therefore, they could not vote for the no confidence motion. It is therefore, necessary to subject those five witnesses to cross-examination by the respondent No.1. The sixth person Babubhai Dahyabhai Khamar, the local correspondent of Gujarat Samachar daily of Ahmedabad, claims in his affidavit to have entered the Council Hall of the Kalol Municipality and to have watched the proceedings. He is an independent man. Affidavits have been made on behalf of the respondent No.1 to show that he was not allowed by the police to enter the Municipal Hall and to watch the proceedings. If he had really watched the proceedings of the meeting of the Kalol Municipality on 6th May, 1973 his evidence would go a long way in helping us to decide the issue before us. It is, therefore, necessary that he should be subjected to cross-examination by the respondent No.1. We, therefore, direct that the petitioner shall produce the aforesaid six persons before this Court at 11 Oclock on 20-9-1973 for cross-examination by the respondent No.1.It is the case of the Petitioner that Vithalbhai Somabhai Patel, a councillor of Kalol Municipality, was present at the said meeting of the Kalol Municipality and had voted for the no confidence motion. Vithalbhai Somabhai Patel denies that fact and also denies his presence at that meeting altogether.Chandulal Chhotalal Barot, Vice-Chairman of the Kalol Municipality had presided over the aforesaid meeting of the Kalol Municipality and, according to him, no confidence motion was not carried because two votes were cast against it and none had voted in its favour. He is a material witness. He has made affidavit in favour of the respondent No.1. Interest of justice require that Vithalbhai Somabhai Patel and Chandulal Chhotalal Barot who have made affidavits in favour of the respondent No.1 should be offered by the respondent No.1 for cross-examination by the petitioner. We, therefore, direct that the respondent No.1 shall produce these witnesses at 11 Oclock on 20th September, 1973, for being cross-examined by thementioned earlier, the petition filed by respondent No.1 was ultimately accepted by the High Court. The High Court in the course of its judgment first went into the question whether the collector had jurisdiction to hold the inquiry to find out whether the no confidence motion had been carried against the appellant and whether vacancy in the post of the President of the Kalol Municipality had arisen. It was held that the Collector had no jurisdiction to make such inquiry and record the impugned order. Order dated June 9, 1973 was, therefore, held to be void and liable to be quashed. The High Court then went into the question whether the order of the Collector was void on the ground that it had been made in violation of the principles of natural justice. The finding of the High Court in this respect was that there was not even a semblance of natural justice in the inquiry which had been conducted by the Collector and the same was vitiated by flagrant breach of all principles of natural justice as the interested persons had not been heard. The High Court then considered the material which had been brought on the file, including the evidence of deponents who had been cross-examinationed, and came to the conclusion that 17 councillors had voted for the no confidence motion against the appellant in the meeting held on May 6, 1973. In the result the writ petition was accepted and directions were given as mentioned above.7. It may be mentioned that this Court initially stayed the operation of the order of the High Court pending notice of motion. Subsequently, as per order dated November 19, 1973 the interim stay order was vacated. It was, however, made clear that fresh election to the office of the President of the municipality would be held subject to the result of this appeal. A meeting was thereafter held and respondent No.1 was elected President of the municipality. At present respondent No.1 is acting as the President of the municipality subject to the result of this appeal.

Reasoning:
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.