TMI Blog1974 (9) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... tioning as the President of the Kalol Municipality. Direction was further issued to the Collector to hold fresh elections to the post of the President of Kalol Municipality. The appellant has filed this appeal by special leave against the above judgment of the Gujarat High Court. 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 grout) of respondent No. 1 voted for the motion and two councillors belonging to the grout) 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 this view 17 councillors out of 25 constituted the requisite two-thirds majority contemplated by section 36 of the Gujarat Municipalities Act, 1963 (Gujarat Act No. 34 of 1964) which reads as under : 36. Motion of no confidence. (1) Any councillor of a municipali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 to confidence was fabricated, false and without truth. It was further observed in that ruling : I, therefore, 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 any cause. After reading out the ruling, the Vice President recorded a note in respect of the minutes of that meeting and the same reads as under : The aforesaid ruling was read over in the meeting and in taking votes on the motion without the aforesaid point, no body showed hand in favour of the motion and there were two votes against the motion, viz., (1) Shri B. M. Patel and (2) C. C. Barot. As there were not legally sufficient number of votes, i.e., 17 votes in favour of the motion, the said no confidence motion is not pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... business of the agenda. Sd. N.S. PARMAR, Presiding Authority, KALOL MUNICIPALITY. Later on 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. 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 warrant 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On September 19, 1973 the learned Judges of the High Court passed an interlocutory order for the production of six persons rho had filed affidavits on behalf of respondent No. 1 and two persons Who had filed affidavits on behalf of the appellant for cross-examinaon. The material part of that order reads as under : We have 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 Kalol 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) Husseinmiya Hasammiya Sayed, (2) Revabhai Lalabhai Parmar, (3) Babulal Somchand Shah, (4) Shantiben Ramachandra Barot, (5) Kantilal Chhaganlal Shah and (6) Babubhai Dahyabhai Khamar have made affidavits in favour of the petitioner. The first five, persons are the councillor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 73, for being cross-examined by the petitioner. As mentioned 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce 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 nor efficacious. It is not necessary for this case to express an opinion on the point as whether the various provisions of the Code of Civil Procedure apply to petitions under article 226 of the Constitution. Section 141 of the Code, to which reference has been made, makes it clear that the provisions of the Code in regard to suits shall be followed in all preccecdings in any court of civil jurisdiction as far as it can be made applicable. The words as far as it can be made applicable make it clear that, in applying the various provisions of the Code to proceedings other than those of a suit, the court must take into account the nature of those proceedings and the relief sought. The object of article 226 is to provide a quick and inexpensive remedy to agg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions are decided on the basis of affidavits. In some cases, however, where it is not possible for the court to arrive at a definite conclusion on account of there being affidavits of either side containing allegations and counter-allegations, it would not only be desirable but in the interest of justice the duty also of the court to summon a deponent for cross.- examination in order to arrive at the truth (see observations of Shelat J. in Barium Chemical's- Ltd. Anr. v. The Company Law Board Ors.(1). The fact that the court permits cross-examination of some of the deponents in a writ petition does not warrant the proposition that the court is bound to permit cross-examination of each and every one of the deponents whom a party wishes to cross-examine. In a 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 Ind crucial for the purpose of cross- examination. The effect of permitting cross-examination was not that the Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asanmiya Saiyad who have sworn affidavits in support of the petitioner or in the alternative to issue summons to them to attend this Hon'ble Court for being cross- examined on behalf of the petitioner; It would 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 'be unnecessary dupli- cation to ask those deponents to repeat what had been stated by them in their affidavits. We are also not impressed by the argument of Mr. Amin that as cross-examination of o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eting, 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 material on record by the High Court. Mr. Amin, however, submits that Councillor V. S. Patel had been supporting the appellant in the past. Patel also filed on May 8, 1973 an affidavit in support of the appellant in the course of which he denied that he was present in the above meeting or that he had supported the motion of no confidence. It is urged that as V. S. Patel was a supporter of the appellant it is most unlikely that he would vote in favour of the motion of no confidence against the appellant. We are unable to accede to this submission. It may be a matter of mournful reflection but all the same it is the acknowledgement of a stark reality that there has been in recent years in the case of so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... what had taken place in the meeting of November 1, 1972. We therefore find nothing improbable in the stand taken on behalf of respondent No. 1 that V. S. Patel had pledged his support to the motion of no confidence and that he actually supported that motion in the meeting held on May 6, 1973. Argument has also been advanced that no signature of the councillors present were taken in the meeting held on May 6, 1973. It is stated that respondent No. 1 had been insisting on taking such signatures in the past and that in two or three meetings signatures of the councillors were, in fact obtained. The omission to take the signatures in the meeting of May 6, 1973, according to Mr. Amin, was deliberate so that the correct number of councillors present in the meeting might not be known. We are unable to accept this argument. There is no statutory provision in the Gujarat Municipalities Act which requires that the signatures of the members attending a meeting must be obtained. It is true that respondent No. 1 had been insisting on obtaining signatures of the councillors present in a meeting but his plea in this respect was generally not accepted. No signatures were admittedly taken in the mee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no confidence . Respondent No. 1 accordingly submits that the, ground which had been specified in the notice for the meeting was adhered to when passing the motion of no confidence. Although the stand taken on behalf of respondent No. 1 in this respect does not appear to be bereft of force, we need not express an opinion on this aspect of the matter because the contention advanced by the appellant can be repelled on another ground, namely, that there is no imperative requirement in the case of a motion of no confidence that it should be passed on some particular ground. There is nothing in the language of section 36 of the Gujarat Municipalities Act reproduced earlier which makes it necessary to specify a ground when passing a motion of no confidence against the President. It is 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, follow 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 mot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t material on record to show that the Collector A 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. There is, in our opinion, no force in the appeal which fails and is dismissed with costs. KRISHNA IYER, J.-The social lesions on the political tissues of our body politic are of as much pathological significance, in this case, as the legal issues and the weaknesses of the court system, thrown up by the mini-crisis in a small municipal council which forms the subject-matter of this case. My learned brother Khanna, J. has discussed the points of law and questions of fact directly arising from the case and I am privileged to agree wholly with his observations, reasoning and result. Nevertheless, I append this hesitant addendum, turning the focus on certain aspects fundamental to our system which this appeal reveals. We were told at the Bar that the case consumed eighteen long days of a Division Bench of the High Court (the Judges observe that counsel ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... office in the confidence that our slow-motion Court system would take a few years for processing final legal justice, hopefully helping him through his unmerited full term. The High Court has observed about this aspect of the case : The anti-democratic situation in a democratic institution will, under these circumstances, be fostered and perpetuated by litigations in courts. These words of robed experience are a reflection on the mechanics and dynamics of our forensic system and suggest radical, not peripheral, technological reforms and scientific re-organisation of court-management. Largely this is the responsibility of the legislature and partly of the courts. Counsel for the appellant expressed shock about reliance on affidavits by the High Court without the affiants being tested by cross-examination. Reasons for this course have been adduced by the High Court and we have found no legal flaw therein. On the contrary, I wish to emphasise that it adds enormously to inconvenience, expense and delay to insist on oral evidence for proof of every little relevant fact in judicial proceedings by suit or writ. Faith in viva voice examination tested by severe cross-examination has s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 play thing of factious politics with under- currents of personal conflicts and overtones of economic interests. The Kalol Municipality is a small town and the wheels of its politics are alleged to be linked with the economics of an 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 elect him President, they swung to oust him from office in May 1972. Without examining the veracity of either party's version, one may express the hunch that the economic interests of that industry must have had some ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nicipality, from 5 years to 2 years. The chaos in that tiny cosmos is: self-evident. Presumably some citizens were exasperated at these happenings and on February 18 a public meeting was held in the Kalol TownHall . 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. 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 pub ..... X X X X Extracts X X X X X X X X Extracts X X X X
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