As the issue involved in both the writ petitions is identical, at the joint request of learned counsels for the parties, they are taken up for hearing together and are disposed of by this common order. 2. The petitioner of Special Civil Application No.11351 of 2012, who is the Chairman of Banaskantha District Cooperative Purchase & Sale Union Limited, has filed the petition under Article 226 of the Constitution of India challenging the order dated 17.08.2012 passed by the Deputy Collector – respondent No.3 to call meeting of the Managing Committee for considering the motion of no confidence against him, basically, material and essentially on the ground that there is no statutory provisions in the Gujarat Cooperative Societies Act, 1961 [for short, `the Act, 1961’] read with Gujarat Cooperative Societies Rules, 1965 [for short, `the Rules, 1965’] for removal of Chairman by any such motion of no confidence.
2.1 When the matter is placed for admission hearing, on 23.08.2012, this Court passed the following order:
“Heard Mr. Mihir Thakore, learned Senior Advocate with Mr. Dipan Desai and Mr. V.C.Vaghela, learned advocate for the respondent Nos.4 to 15 who appears on caveat.
2. The challenge in this petition under Article 226 of the Constitution of India is against the order dated 17.08.2012 passed by the Deputy Collector-respondent No.3 to call meeting of the Managing Committee for considering the motion of no confidence against the petitioner, who is the Chairman of the Banaskantha District Cooperative Purchase and Sale Union Limited, though in the Gujarat Cooperative Societies, 1961 and rules framed there under, there is no provision for removal of Chairman by any such motion of no confidence and that the Deputy Collector has no authority to call and convene any such meeting for considering such no confidence motion.
3. At the outset, learned Senior Advocate appearing for the petitioner placed reliance on the decision of the Apex Court in the case of Pratap Chandra Mehta v. State Bar Council of Madhya Pradesh [(2011)9 SCC 573] in support of his submission that in absence of specific statutory provisions in the Act or Rules about calling or convening meeting for no confidence motion against elected Chairman / Vice-Chairman or any other office bearer of the statutory body, such motion of no confidence is illegal. It is, therefore, submitted that in the above decision the Apex Court had an occasion to deal with the judgment and order dated 20.05.2011 of High Court of Madhya Pradesh at Jabalpur in Writ Petition No. 6372 of 2011 in the context of no confidence motion moved against the Chairman / Vice-Chairman of State Bar Council of Madhya Pradesh under Section 15 of the Advocates Act, read with Rule 122A of State Bar Council Rules providing for removal of Chairman / Vice-Chairman by no confidence by specific majority of elected members of Bar Council subject to conditions specified therein. The High Court of Madhya Pradesh, in the above writ petition, had an occasion to consider decision of Full Bench of this Court in the case of Nandlal Bavanjibhai Posiya v. Director of Agriculture Marketing & Rural Finance [AIR 2002 Guj. 348] to which the High Court of Madhya Pradesh had expressed inability to subscribe to either of the two propositions viz. that words, `ceasing to hold office for any reason' and if a holder of office is elected by simple majority, he can be removed [through no confidence motion] by a simple majority [even in absence of a statutory provision for such removal].
4. At the same time, in the case of Nandlal Bavanjibhai Posiya [supra] the Full Bench of this Court placed reliance on decisions of Bar Council of Delhi v. Bar Council of India [AIR 1975 Delhi 200] saying that solely with the aid of General Clauses Act, 1897 the power to elect would deem to include power to remove by a motion of no confidence, which was not accepted by the Apex Court. Therefore, the Decision in the case of Nandlal Bavanjibhai Posiya [supra] and any other decision rendered subsequent to that placing reliance on Section 16 of Bombay General Clauses Act stand impliedly over-ruled. It is, therefore, submitted that in the Gujarat Cooperative Societies Act, there is no provision pari materia to the provisions of Rule 33 of APMC Rules referred to and relied and so interpreted by Full Bench in the case of Nandlal Bavanjibhai Posiya [supra]. Therefore, the impugned order deserves to be quashed and set aside and alternatively relief claimed of interim in nature be granted, as prayed for.
5. Mr. V.C.Vaghela, learned advocate for the private respondents would contend that so far as powers to call and convene meeting for no confidence motion under the Gujarat Cooperative Societies Act, is no more res integra so far as this court is concerned in view of decision of this Court in the case of Motibhai R. Chaudhary, Chairman v. Registrar, Coop. Societies [2005(1) GLH 270] in which reliance was placed on various decisions and principles governing democratic institutions and functioning of elected Chairman / Vice-Chairman and other office bearers in the context of democratic set up of such institutions. In the above decision, the Division Bench of this court relied on the decision in the case of Nandlal Bavanjibhai Posiya [supra] whereby it was held that No- confidence motion can be passed by simple majority against the holder of the elected office, who is elected by simple majority, unless the Rules of business or bye-laws or statute indicate a contrary intention or prohibit passing of a no-confidence motion, and therefore, in absence of prohibition as such of removing and passing of no confidence at a motion so moved, order passed by the Deputy Collector, impugned in this petition, does not require any interference by this Court.
6. Learned counsel for the private respondents would also contend that both the above decisions viz. Nandlal Bavanjibhai Posiya [supra] and Motibhai R. Chaudhary [supra] are not impliedly over-ruled since were not directly or indirectly considered by the Apex Court in the decision of Pratap Chandra Mehta [supra]. Alternatively, it is submitted that no confidence motion be permitted to be moved and considered, but final outcome of the motion be not declared. In view of the above, it is submitted that no relief as prayed for be granted, at this stage.
7. Having heard learned counsels for the parties and considering the facts and circumstances of the case and decisions relied upon by the learned counsels for the parties, the writ petition deserves consideration.
8. Prima facie, except the interpretation put forth on the basis of Section 16 of Bombay General Clauses Act and decisions in the cases of Nandlal Bavanjibhai Posiya [supra] & Bar Council of Delhi [supra] and that no prohibition contained in the Gujarat Cooperative Societies Act about a notice of no confidence motion, the fact that specific provision about initiation and/or consideration of no confidence motion against the Chairman and/or Vice Chairman is not available, remains undisputed. In the case of Motibhai R. Chaudhary [supra] the Division Bench held that the power to appoint includes power to remove. At the same time, the basis of the above finding has roots in the decision of Nandlal Bavanjibhai Posiya [supra] and Bar Council of Delhi, which was noticed and considered by the Apex Court in the case of Pratap Chandra Mehta [supra] and particularly law as held by the Division Bench of Delhi High Court in the case of Bar Council of Delhi that solely with the aid of General Clauses Act, 1897 the power to elect would deem to include power to remove by a motion of no confidence, was not accepted.
9. In the facts of the case on hand, no specific provision exists on the issue of no confidence motion either under the Gujarat Cooperative Societies Act or Rules framed thereunder or analogous to rule 33(2) of APMC Rules. In the above circumstances, permitting further consideration of no confidence motion, which is to be tested on the Floor, would result into virtually irreversible situation, undue hardship and irreparable loss to the petitioner and further allowing the respondents to exercise powers not specifically available under the Gujarat Cooperative Societies Act and Rules framed. It may be a matter of further consideration whether decision in the cases of Nandlal Bavanjibhai Posiya [supra] and Motibhai R. Chaudhary [supra] have been specifically over-ruled or not, but the law laid down in the case of Pratap Chandra Mehta [supra] in which decision of Nandlal Bavanjibhai Posiya [supra] which was not accepted by Madhya Pradesh High Court and the legality and validity of the decision of Madhya Pradesh High Court was subject matter of Pratap Chandra Mehta [supra] case, and therefore, the law laid down by the Apex Court in the above decision is also binding to this court.
10. In view of the above, this matter deserves consideration.
Hence, issue rule returnable on 29th August, 2012. Interim relief in terms of para 6[C] till then.
Learned advocate Mr. V.C.Vaghela waives service of rule on behalf of respondent Nos. 4 to 15.
Direct service for rest of the respondents, is permitted”.
2.2 Being aggrieved by the interim order dated 23.08.2012 passed by this Court, private respondents of this petition have filed Letters Patent Appeal No.1071 of 2012. A Division Bench of this Court [Coram : Hon’ble Mr. Justice Jayant Patel and Hon’ble Mr. Justice C.L.Soni] vide order dated 27.08.2012 partly allowed the above Letters Patent Appeal by modifying the interim relief granted by this Court vide order dated 23.08.2012. Paras 12, 13 & 14 of order dated 27.08.2012 reads as under:
“12. In view of the above, and considering the facts and circumstances, we find that the following order shall meet with the ends of justice – 1] The meeting of all members of the managing committee pursuant to the agenda dated 17.08.2012 (Annexure-A of the petition) which is scheduled to be held on 28.08.2012 at 10.00 AM in the office of the Banaskantha District Sahakari Sangh for consideration of the motion of no confidence against the Chairman is permitted to be held but it is further directed that the vote at the said meeting shall be by secret ballot and the Chairman of the meeting, i.e., Deputy Collector concerned, respondent no.3 shall count the votes for and against the motion of no confidence and shall again put the ballot sheet with counting of votes in sealed cover before the learned Single Judge in the proceedings of Special Civil Application No.11351/12 on the next date which is fixed on 29.08.2012.
13. The interim order passed by the learned Single Judge in Special Civil Application No.11351/12 shall stand modified to the aforesaid extent. It would be open to both the sides to raise all contentions as may be available in law before the learned Single Judge.
14. Appeal is allowed to the aforesaid extent. No order as to costs. D.S. today”.
3. The brief facts of the case leading to filing of the petition are as under:
3.1 The petitioner is the Chairman of the Banaskantha District Cooperative Purchase & Sale Union Limited, which is a specified society within the meaning of Section 74C of the Act, 1961. Apropos election of the members of the Managing Committee of the specified society, which was held in the month of April, 2010, the petitioner came to be elected uncontested by the Election Officer from individual members constituency and a declaration of the result was made on 07.04.2010. The first meeting of the newly elected members of the Managing Committee of the specified society was held on 30.04.2010 and the petitioner came to be unanimously elected as Chairman and since then the petitioner has been performing his duties as the Chairman of the above specified society.
3.2 That the bye-laws of the specified society provide that the Managing Committee shall consist of 19 elected directors and 1 director shall be nominated by the Banaskantha District Cooperative Bank Ltd. and if the specified society has availed any financial assistance from the said bank, the District Registrar, Cooperative Societies, Banaskantha shall be the ex- officio director of the Society. Thus, in all, there are 21 directors in the Managing Committee.
3.3 It is the case of the petitioner that some of the members of the Managing Committee of the specified society were pressurizing the petitioner for carrying out activities contrary to the Act, 1961 and Rules, 1965 and also prejudicial to the interest of the society and since the petitioner refused to succumb to such illegal demands, 12 directors viz. respondent nos.4 to 15 have initiated action to remove the petitioner as the Chairman of the Society by moving a motion of no confidence and accordingly notice was served upon the office of the District Registrar on 27.07.2012. The petitioner has raised suspicion about registering of such notice in the inward register of the District Registrar on 26.07.2012 to show the connivance of the private respondents with the officers of the District Registrar. As per Section 74C(2) of the Act, 1961, the term of the members of the Managing Committee shall be 3 years and the term of the office-bearers would also be co- extensive with the members of the Managing Committee.
3.4 A basic contention raised on law that in absence of any statutory provisions in the Act, 1961 and Rules, 1965 the term of the Managing Committee as well as the Chairman of the Managing Committee cannot be curtailed unless in the manner prescribed in the law. That sole reliance of taking such action by the Authority and the aggrieved members of the Managing Committee is based on the decision of Full Bench of this Court in the case of Nandlal Bavanjibhai Posiya v. Director of APMC [2002(1) GLH 659] whereby a view is taken in the context of provisions of the Gujarat Agricultural Produce Markets Act, 1963 [for short, `Act, 1963'] and the Gujarat Agricultural Produce Market Rules, 1965 [for short, `APMC Rules'] that the Managing Committee has inherent right to remove the Chairman / Vice-Chairman by way of motion of no confidence. That another decision on the above subject is in the case of Motibhai R. Chaudhary v. Chairman v. Registrar, Coop. Societies [2005(1) GLH 270] arising out of interpretation of provisions of the Act, 1961 and the Rules 1965, where the Division Bench of this Court dealing with similar contention in a case of no confidence motion moved against the Managing Director of the Federal Society and considering the provisions of Section 82(2), 74, 160(1), Section 145Z and bye-laws of the Federal Society and upon taking into consideration decision in the case of Posiya [supra] and even in absence of statutory provisions with regard to moving of motion of no confidence, it was held that the District Registrar, Cooperative Societies is empowered to call for no confidence motion in case the Managing Director declines to convene such meeting. It was further held that there is no prohibition imposed by the Act, Rules and Bye-laws to call for no confidence motion and convening such meeting and keeping in mind Section 16 of the Bombay General Provisions Act, Managing Committee has power to appoint, which includes power to remove, the challenge to convene the meeting to consider no confidence motion was rejected.
3.5 Thus, admittedly and indisputably there is no statutory provision under the Act, 1961 and/or Rules 1965 for governing no confidence motion and convening any such meeting to consider such no confidence motion against the Chairman of the Managing Committee of the specified cooperative society like the petitioner and source of exercising such powers by the aggrieved members and/or directors or in absence thereof by the competent authority under the Act is found in the decision of this Court of Full Bench in the case of Posiya [supra] and Division Bench decision in the case of Motibhai Chaudhary [supra].
4. Special Civil Application No.4087 of 2012 is filed by the petitioners, who are Chairman and Member of the Managing committee, Agriculture Produce Market Committee, Deodar, with a prayer to quash and set aside the order dated 27.03.2012 passed by the respondent No.1 and to set aside the communication dated 28.03.2012 issued by the respondent No.3. It is further prayed by the petitioners that the respondent authorities shall not consider the motion of no confidence dated 29.03.2012 since the same is signed by the respondent No.12 who has ceased to be member of the Market Committee. The petitioners have prayed for interim and other ancillary reliefs.
4.1 A co-ordinate Bench of this Court [Coram : Hon'ble Mr. Justice K.M.Thaker] while issuing rule on 11.05.2012 passed the following order:
The petitioners have taken out present petition seeking below mentioned reliefs:-
“46. (A) The Hon'ble Court be pleased to issue a writ of certiorari, or writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the order dated 27.03.2012 passed by the respondent no.1 at Annexure-A to this petition and be pleased to quash and set aside the communication dated 28.03.2012 issued by the respondent no.3 at Annexure-B to this petition.
(B) The Hon'ble Court be pleased to issue a writ of mandamus, or writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondent authorities not to consider the motion of no confidence dated 29.02.2012 since the same is signed by the respondent no.12 who has ceased to be member of the Market Committee.
(BB) The Hon'ble Court be pleased to call for the record of the meeting of Agriculture Produce Market Committee Deodar held on 2.4.2012 and be pleased to quash and set aside the said proceedings of the meeting of Agriculture Produce Market Committee, Deodar held on 2.4.2012.
(C) Pending final hearing and disposal of the petition, the Hon'ble Court be pleased to stay the execution, operation and implementation of communication dated 28.03.2012 issued by the respondent no.3 at Annexure-B to this petition.
(CC) Pending final hearing and disposal of the petition, the Hon'ble Court be pleased to stay the execution, operation and implementation of the proceedings conducted in the meeting dtd. 2.4.2012 of Agriculture Produce Market Committee, Deodar.”
2. So as to support and justify the reliefs prayed for, the petitioners have stated below mentioned facts:-
2.1 The petitioner No.1 has claimed that he is a Chairman of Agriculture Produce Market Committee [hereinafter referred to as “APMC” for short], Deodar and petitioner No.2 is one of the Directors. It is claimed that the election of said APMC was held on 3.3.2011 wherein the petitioner No.1 was elected from Cooperative Marketing Constituency and petitioner No.2 came to be elected from Traders Constituency. Subsequently, the petitioner No.1 also came to be elected as Chairman. The market committee consists 17 directors out of whom, 14 directors are elected directors and 3 directors are nominated. It is also alleged that respondent No.12 contested the election from Agriculturists Constituency but did not succeed and thereafter, he was nominated by Deodar Gram Panchayat in exercise of provision under Section 11 (1)(iv) which permits nomination by local authority. It is also alleged that the term of the Gram Panchayat (who nominated respondent No.12) came to an end in December-2012 and the election of the Panchayat was held on 29.12.2012. It is claimed by the petitioners that the respondent No.12 was nominated by the earlier body of the Panchayat however after the elections of the Panchayat held on 29.12.2011, the new body did not forward any nomination to the market committee. In background of such facts, the petitioners have claimed that the nomination of respondent No.12 came to an end upon expiry of the term of the Panchayat in December, 2012. It is also claimed by the petitioners that until now the new body has not forwarded its nomination to the market committee. It is also claimed that the committee has vide its letters dated 3.3.2012 and 8.3.2012 requested the Panchayat to forward the nomination but it has yet not been forwarded.
3. It emerges from the record that on 29.2.2012, the respondent Nos.4 to 11 moved motion of no confidence against petitioner No.1. The petitioners alleged that respondent Nos.4 to 12 have formed a group and want that the petitioner No.1 should be removed from the post of Chairman. The respondent No.2 director, in view of the said motion of no confidence directed, vide his order dated 1.3.2012, the District Registrar to call a meeting of the market committee. The meeting was convened on 6.3.2012 for considering the motion of no confidence. The scheduled was declared vide Registrar’s communication dated 2.3.2012 which was challenged by way of writ petition being Special Civil Application No.2944 of 2012. It also appears that the petitioner No.2 had also filed revision application for relief of restrain order against the respondent No.12 so as to restrain him from participating in the meeting which was to be held on 6.3.2012. The Dy. Secretary vide his order dated 5.3.2012 granted stay against the said meeting hence, the meeting was not held. Consequently, the above mentioned petition was also disposed of on the ground that it would not survive because the meeting was not held. The Dy. Secretary passed order dated 27.3.2012 and rejected the above mentioned revision application. It can be seen from the relief prayed for in present petition, that the said order dated 27.3.2012 is brought under challenge. After the said order dated 27.3.2012, the director passed order on 28.3.2012 asking the committee to call special meeting to consider the motion of no confidence.
4. On the next day, i.e. on 29.3.2012, present petition came to be filed and on 30.3.2012, after hearing the learned counsel for the petitioners, below mentioned order was passed :-
“1. Notice returnable on 09/04/2012.
2. In the meanwhile the proposed meeting scheduled to be held on 02/04/2012 may take place, however, on the condition that if the voting takes place then such voting process shall be conducted by way of secret ballot and in presence of Deputy Director or his representative and the ballot box shall not be opened and the votes shall not be counted until further orders of the Court.
3. The vote cast by nominated member shall be kept separate in sealed cover.
4. The total votes cast during the meeting i.e. the ballot box shall be kept in custody of the Director and shall be placed before this Court on the returnable date.
5. The process of the scheduled meeting, the votes which may be cast during the meeting i.e. entire process shall be without prejudice to the contentions of the contesting parties including the contention about the manner in which requisition was made subject to the order that may be passed by the Court after hearing the parties. All contentions including the contention that the requisition is not made in accordance with rules, are kept open. The contentions of both sides are open. Direct service today is permitted.”
5. In view of the said order, the meeting could be convened and the motion was put up for consideration which was followed by voting. The process was undertaken as per the directions in the said order dated 30.3.2012. Subsequently, the ballot box were brought before the Court in light of the said order dated 30.3.2012. On 12.4.2012, the ballot box were opened in the Court and the result had been noted. On 12.4.2012, the Court passed below mentioned order:-
“1. Today, subsequent to the order and direction passed on 30.3.2012, the ballet box is made available in Court. The Election Officer has also remained present. Under direction of the Court and in presence of learned advocate for the petitioner, learned advocate for the respondent, learned AGP the ballet box has been opened and the result has been noted down on separate paper.
2. However, as mentioned in the order dated 30.3.2012 the result is made subject to the order that may be passed in present petition. In that view of the matter result will not be considered as result finally declared by the Election Officer until any other order is passed in present petition and for the present it will not be implemented until other order is passed after hearing parties.
3. So as to enable the parties to file affidavit if they so desire, hearing of the petition is adjourned to 18.4.2012.
4. At this stage learned advocate for the petitioner has placed on record Draft Amendment so as to bring on record subsequent events.
5. The Draft Amendment is granted. The amendment to be carried out forthwith. It will be open for the respondent to file necessary reply opposing the details mentioned in the draft amendment.”
6. At this stage, it may be mentioned that when the ballot box were opened and votes were counted, it emerged that 10 votes were cast in favour of requisition i.e. in favour of motion of no confidence / against the petitioner No.1 and 6 votes were cast against the motion i.e. in favour of the petitioner and one vote was invalid. However, the said outcome is governed by the above referred order dated 12.4.2012.
Thereafter, the petition was heard on different dates (e.g. 18.4.2012, 23.4.2012, 25.4.2012, 26.4.2012, 3.5.2012, etc.).
7. Mr. Joshi, learned Senior Counsel, has appeared with Mr. Vyas, learned advocate for the petitioners and Mr. Vaghela, learned advocate has appeared for respondent No.12 and Mr.Raval, learned AGP, has appeared for the respondent No.1 and 3.
7.1 Mr. Joshi, learned Senior Counsel, has inter alia contended that the requisition and the subsequent process of voting are incompetent and illegal and that therefore, the motion for no confidence should be declared defeated and it also should be declared that the petitioner No.1 continues as Chairman of the Committee. He also submitted that the requisition could not have been moved by simple majority. He also contended that the Gujarat Agriculture Produce Market’s Act, 1963 and the Rules framed thereunder do not contemplate removal of Chairman or Vice-Chairman by motion of no confidence since there is no provision under the Act or the Rules for considering the motion of no confidence. It is also claimed that in absence of such provision the director could not have issued directions for convening the meeting for considering the motion of no confidence. It is also claimed that respondent No.7, 8 and 12 were, at the relevant time, even otherwise, not competent to sign the requisition and that therefore, the requisition cannot be considered as requisition by even simple majority. Mr. Joshi also submitted that the order dated 27.3.2012 is also incorrect, arbitrary and against the evidence on record and it has been passed with undue haste.
8. Per contra, Mr. Vaghela, learned advocate for respondent No.12, submitted that in view of the decision by the Hon’ble Full Bench of this Court, motion of no confidence by simple majority is legal and even in absence of express provision, Chairman or Vice-Chairman can be removed by motion of no confidence as right to remove is inherent in right to elect. He also submitted that the order dated 27.3.2012 does not suffer from any infirmity. Mr. Vaghela submitted that the contention that the respondent No.12 was not competent to sign the requisition is misconceived inasmuch as his nomination would last until the tenure of the market committee i.e. it would be coterminous with the tenure of market committee and not with the tenure of the body of Panchayat. With reference to the respondent No.7 and 8, learned counsel submitted that the respondent No.7 and 8 have been granted licence and before expiry of their licence on 31.3.2012, application for grant/renewal of licence were already submitted and that therefore, the said two respondents also cannot be said to be incompetent. He submitted that the requisition and motion of no confidence are assailed only on the premise that the said three persons were not competent to move the requisition and/or to participate in the meeting, however, in view of the factual and legal position, the said contention is unsustainable. He submitted that the total number of votes against the petitioner are 10 and even if the 3 votes by respondent No.7, 8 and 12 were not taken into account, then also, the majority vote would still be against the petitioner No.1 since he could secure only 6 votes in his favour and that therefore, even otherwise, the majority is against the petitioner No.1.
9. The learned counsel appearing for the contesting parties have, inter alia, relied on below mentioned decisions:-
1. Pratap Chandra Mehta v. State Bar Council of Madhya Pradesh & Ors. [(2011) 9 SCC 573.
2. Nandlal Bavanjibhai Posiya v. Director of Agriculture [2002 (1) GLH 659].
3. Agricultural Produce Market Committee v. Patel Jayantilal Purshottamdas [2001 (0) GLHEL-HC 200179].
4. Afjal Imam v. State of Bihar & Ors. [2011 AIR SCW 2722].
5. Om Prakash Gupta s/o Late Sita Ram Sah v. State of Bihar Through The Principal Secretary Urban Development And Housing Department, Govt. of Bihar, Patna [2010(0) AIJ-PT 1729166].
6. Jayendrasinh Bhupatsinh Diama v. State of Gujarat through Additional Secretary (Inquiry) & Ors. In Special Civil Application No.10128 of 2011 dated 17.11.2011.
7. Rajendrabhai @ Rajubhai Haribhai Vora v. Agriculture Produce Market Committee in Special Civil Application No.2766 of 1997 dated 23.10.1997.
8. Botad Nagar Palika v. Rajendrabhai @ Rajubhai Haribhai Vora in LPA No.1501 of 1997 in Special Civil Application No.2766 of 1997 dated 21.1.1998.
10. I have considered the rival submissions by the learned counsel for the contesting parties and have perused the record.
10.1 The petitioners and the respondents, both have referred to and relied on the decision in case of Nandlal Bhavanbhai Posiya (supra).
10.2 In the said decision, the Hon’ble Full Bench has observed and held that right to remove is inherent in right to elect and that therefore, even in absence of any express provision in the Act and the Rules, a Chairman or a Vice- Chairman can be removed on motion of no confidence and that for such purpose, simple majority would be sufficient. However, Mr. Joshi, learned senior counsel, while referring to the said decision by the Full Bench, relied on recent decision by the Apex Court in case of Pratap Chandra Mehta (supra) and submitted that in the decision in case of Nandlal Bhavanjibhai Posiya (supra), the Full Bench has taken into consideration provision under General Clauses Act and also referred to the decision by Delhi High Court in the case of Bar Council of Delhi v. Bar Council of India [AIR 1975 Delhi 200], however, after considering the provision under General Clauses Act and the decision by the Delhi High Court, the Apex Court has observed thus:-
“75. Then it is contended that removal from an office is punitive. It being punitive, there has to be a just cause and adherence to the principles of natural justice by granting hearing before the removal from office is given effect to. To clarify, it is submitted that removal from an elected office, even in face of a valid rule, would have to meet these twin requirements of just cause and hearing, before a person can be removed from office. On the other hand, the learned counsel appearing for the respondents, while relying upon the judgment of the Delhi High Court in the case of Bar Council of Delhi v. Bar Council of India [AIR 1975 Del 200], contended that by application of the General Clauses Act, 1897 even in absence of any specific provision, the right of persons to elect a Chairman/Vice-Chairman would include the right to undo the same by moving a `no confidence motion'.
76. It needs to be noticed at the very threshold of consideration of this submission that `no confidence motion' cannot be equated in law to removal relatable to a disciplinary action or as a censure. It is stricto senso not removal from office, but a removal resulting from loss of confidence. It is relatable to no confidence and is not removal relatable to the conduct or improper behaviour of the elected person. Even the concept of `term' under the Rules, is referable to and is controlled by a super-imposed limitation of no confidence. This tenure cannot be compared to a statutory tenure as is commonly understood in the service jurisprudence.
77. The distinction between removal by way of `no confidence motion' and removal as a result of disciplinary action or censure is quite well accepted in law. They are incapable of being inter-changed in their application and must essentially operate in separate fields. The Court has always prioritized harmonious functioning of the State Bar Council. In the case o Afjal Imam v. State of Bihar and others, the recall of a Mayor and the re-election of a different Mayor in his place has been held to implicitly shorten the term of the appointees of the previous Mayor, if such is in the interest of smooth functioning of the body.
78 Noticing this distinction, a Bench of this Court in the case of Babubhai Muljibhai Patel v. Nandlal Khodidas Barot, while dealing with the question whether grounds for removal must necessarily be specified when passing a motion of no confidence, noticed the difference between `no confidence motion' and a censure motion and described the same as follows: (SCC pp.720-21, para 19) “19.....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 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 guilty 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. We may in the above context refer to page 591 of Practise and Procedure of Parliament, 2nd Edn. by Kaul and Shakdher wherein it is observed as under:
'A no-confidence motion in the Council of Ministers is distinct from a censure motion. Whereas, a censure motion must set out the grounds or charge on which it is based and is moved for the specific purpose of censuring the Government for certain policies and actions, a motion of no confidence need not set out any grounds on which it is based. Even when grounds are mentioned in the notice and read out in the House, they do not form part of the no- confidence motion.'”
10.3 Having regard to the aforesaid submissions and the factual backdrop and considering the fact that the petition raises issues about competence of respondent Nos.7, 8 and 12 to sign the recognition and participating the meeting and the petition also raises issue against the recognition, the petition deserves consideration. Hence, Rule.
11. So far as the request for interim relief is concerned, it appears that the submission by Mr. Vaghela, learned counsel for the respondents No.4 to 12 has some substance in view of the fact that 10 votes have been cast in favour of the motion of no confidence i.e. against the petitioner No.1 which is significant and declares the wish of the majority of the committee. In democratic set up, the majority’s wish is relevant and important. Even if, the 3 votes against which the petitioner has raised grievance are not taken into account, then also, the majority appears to be against the petitioner. Therefore, considering all relevant aspects arising in present petition, below mentioned order is passed by way of interim arrangement / direction:-
11.1 The election officer is permitted to declare the result of the election as per the outcome which emerged upon opening of the ballot box in Court, on 12.4.2012 (which was noted down on separate paper under Court’s direction). Until the final order in the petition, the said result would operate as the result of election declared by the election officer under the provisions of the Act and Rules.
11. The interim relief as prayed for in para 46(C) and / or 46(CC) cannot be granted at this stage in view of the number of votes cast in favour of the motion of no confidence i.e. against the petitioner since the said result reflects and declares the wish of the majority of the committee which is supreme so far as the committee is concerned. In that view of the matter, the director being the competent authority, shall take further and
12. necessary action, as required by the provisions of the Act and the Rules. Considering the circumstances of the case and issues involved therein, it is considered appropriate that the process of Rule be made returnable in the week beginning from 6.8.2012”.
4.2 Being aggrieved by the order dated 11.05.2012 passed in Special Civil Application No.4087 of 2012, the petitioners have filed appeal being Letters Patent Appeal No.811 of 2012. The Division Bench of this Court [Coram : Hon'ble Mr. Justice P.B.Majmudar & Hon'ble Mr. Justice Mohinder Pal] vide order dated 18.06.2012 disposed of the said appeal and civil application for stay filed therein. The operative portion of the order dated 18.06.2012 reads as under:
“7. Considering the same, we DISPOSE OF this appeal with the following directions:
(1) The learned Single Judge may try to dispose of the pending writ-petition, I.e. Special Civil Application No. 4087 of 2012 at the earliest and preferably before 10TH JULY, 2012, provided that the learned Counsel for both the sides shall cooperate with the hearing before the learned Single Judge,
(2) Till Special Civil Application No. 4087 of 2012 is decided by the learned Single Judge, the so called Chairman shall not convene any meeting, unless in the circumstances, as referred to above, such as, in case of urgent business to be transacted and the Chairman will not preside over such meeting and Vice-Chairman shall preside over the said meeting as Chairman.
(3) In case, the writ petition filed by the appellants is dismissed, the said Chairman shall be allowed to continue and function, as a regular Chairman. In case, if, writ-petition is allowed then appellant will be allowed to continue as a Chairman. As the election of the new Chairman is also subject to the main writ petition, it is clarified that this order is passed in view of the consensus prevailing between the learned Advocate for the appellants and the respondents, and therefore, we are not examining the other issues raised in this appeal.
8. It is, further, clarified that the observations made by the learned Vacation Judge is to be considered as of tentative nature and learned Single Judge shall decide the matter on merits, after hearing both the sides, without being influenced by the order passed by the learned Vacation Judge. DISPOSED OF, accordingly”.
5. Shri Mihir Thakore, learned Senior Counsel for the petitioner has referred to factual aspects including that of order passed by the Deputy Collector, Palanpur on 17.08.2012 in which it is stated that the Deputy Collector, Palanpur is empowered and authorized by District Collector, Banaskantha to preside over the meeting to be convened on 28.08.2012 to consider the motion of no confidence against the petitioner. That as per the provisions of the Act, 1961 and Rules, 1965, the Collector or the Deputy Collector is only the officer authorized by the statute to conduct elections and such officers have no authority for the management of the Society, including to preside over the meeting to consider no confidence motion in absence of any statutory provisions. Learned Senior Counsel has also referred to election of the petitioner on 07.04.2010 through individual category and meeting dated 30.04.2010 of the Managing Committee and election of the petitioner as Chairman in a period of 3 years as per bye-laws 19. Thus, the petitioner has been performing duties as Chairman of the specified society in accordance with law. On the basis of the above facts recorded in the interim order passed by this Court on 23.08.2012, the following basic contentions of law are raised by Shri Mihir Thakore, learned Senior Counsel for the petitioners.
5.1 It is submitted that the judgment of this Court in the case of Posiya [supra] and Motibhai Chaudhary [supra] both should be considered to have been over ruled and no longer good law in view of the subsequent judgments of the Supreme Court of India reported in Pratap Chandra Mehta v. State Bar Council of Madhya Pradesh & Ors. [(2011) 9 SCC 573 and also on Ravi Yashwant Bhoir v. Dist. Collector Raigadh [(2012)4 SCC 407] on account of the following facts and contentions of law:
[a] That the judgment of the Full Bench of Gujarat High Court in the case of Posiya [supra] was cited before the Madhya Pradesh High Court, which expressed its inability to subscribe to the proposition laid down therein that the words `ceasing to hold office’ included removal by way of no confidence motion and that the holder of an elected officer could be removed by a motion of no confidence even in the absence of statutory provisions for the same. The legality and correctness of the above reasoning was questioned before the Apex Court in the appeals and the Apex Court upheld the judgment of the M.P. High Court in its judgment reported in Pratap Chandra Mehta [supra] referred to above.
[b] That the Gujarat High Court has essentially applied the provisions of the Bombay General Clauses Act, to hold that Section 16 thereof provides a power to appoint includes the power to suspend or dismiss, cannot be restricted to non-elective officers and has therefore held that moving of a no confidence motion and passing the same by a simple majority is permissible and not expressly prohibited under the Act. In the above referred case, the Apex Court while considering the decision of the Delhi High Court which had taken a similar view has expressly not accepted this proposition.
[c] That reference to Rule 33(2) of APMC Rules is made in the case of Posiya [supra] by the Gujarat High Court, which is only with a view to conclude that the power of no confidence is contemplated to exist with the Committee since the Director is empowered to call a meeting of the Committee to elect another person as Chairman in the event of the Chairman `ceasing to hold office for any reason’ which is interpreted by the Court to include his removal by a no confidence motion [therefore `no different intention’ to restrict applicability of the General Clauses Act], but not that the said Rule is itself the source of such power. It could not be since proceedings under Rule 33(2) would be consequential upon the exercise of the purported power of no confidence, and therefore, could not be its source too. The source of such power is read in by the Court in the power to elect, only by resorting to Section 16 of the General Clauses Act. Therefore, the Court has concluded that moving of a no confidence motion is `permissible’ [implied by virtue of Section 16] and `not expressly prohibited’ under the Act. A common law right is distinct from a right flowing from the General Clauses Act and the Court has held that an inherent statutory right exists in the members of an elected body to remove its leader by a no confidence motion. This can only be under Section 16 and it is further borne out from the final conclusion of the Court that in the absence of a contrary provision in the law [the test of `contrary context’ or `different intention’ adopted for applying the provisions of the General Clauses Act] such right has to be read in the statute.
[d] That in any case the Apex Court has unequivocally held in the case of Ravi Yashwant Bhoir [supra] that an incumbent is entitled to hold office for the term for which he has been elected [2 years in the case under APMC Act and 3 years in the case under the Gujarat Coop. Societies Act] and can be removed only by procedure established by law like no confidence motion etc. Therefore, the judgment of this Court reading in such a power is no longer good law, since such implied power does not constitute procedure established by law.
5.2 It is further submitted that the Full Bench judgment in the case of Posiya [supra] has been impliedly over-ruled by the Apex Court in the case of Pratap Chandra Mehta [supra] and Ravi Yashwant Bhoir [supra] for the reasons stated in the submissions made in the cognate matter.
5.3 It is further submitted that the full Bench has not held that right to move no confidence motion is a common law right but has held that it is an inherent statutory right. To come to the conclusion that it is an inherent statutory right the Full Bench has sought to interpret Rule 33(2) of APMC Rules with the aid of Section 16 of Bombay General Clause Act. Without applying and taking recourse to Section 16 of Bombay General Clauses Act the Full Bench could not have read into Rule 33(2) the right to recall. In view of the above referred judgment of the Apex Court, taking recourse to section 16 for the purpose of giving a right to recall is expressly over ruled.
5.4 So far as the Gujarat Co-operative Societies Act is concerned, there is no provision similar to Rule 33(2) of APMC Rules and sole reliance placed on the decision of Full Bench is also impliedly over ruled and would have no application. The decision of the Division Bench in the case of Motibhai R. Chaudhary [supra] is no longer good law irrespective of the fact whether the Full Bench has impliedly over-ruled or not, because; [a] the said judgment relies on Section 16 of the Bombay General Clauses Act; [b] the said judgment relies on the Delhi High Court decision in Bar Council of Delhi [supra]; and the Apex Court in the case of Pratap Chandra Mehta [supra] has expressly overruled the decision in the case of Bar Council of Delhi v. Bar Council of India [AIR 1975 Delhi 200] and the applicability of General Clauses Act to include the power to remove in the power to re-elect.
5.5 Shri Mihir Thakore, learned Senior Counsel for the petitioner in Special Civil Application No.11351 of 2012 would therefore submit that decisions in the case of Posiya [supra] and Motibhai R. Chaudhary [supra] both are impliedly over- ruled and in absence of statutory powers to move, consider and pass no confidence motion the order / notice / communication impugned in this petition is required to be quashed and set aside.
5.6 In addition to main contention of law about absence of statutory powers under the Act, 1961 and Rules, 1965 and also under APMC Act and Rules framed thereunder, the learned senior counsel placed reliance on the decisions of Mohan Lal Tripathi v. District Magistrate Rae Barelly [AIR 1993 SC 2042], C.Puttaswamy v. Smt. Prema [AIR 1992 Karnataka 356][Full Bench]; Laxman Meena v. State of Rajasthan [AIR 1998 Rajasthan 306] and Nimain Charan Mohanty v. State of Orissa [AIRA 1995 Orissa 106].
5.7 Mr. Mihir Thakore learned Senior Counsel for the petitioner also relied on passing of legislative enactment of providing minimum tenure to the elected members viz. President, Chairperson, Vice-President, Vice-Chairperson, etc. by the States of Tamilnadu and Orissa. According to learned Senior Counsel for the petitioner the above provisions were introduced as the Government felt that frequent moving of no confidence motion on trivial and unjustified grounds in rural local bodies were detrimental to public interest.
5.8 Learned Senior Counsel relying on a decision of 3-Judge Bench of the Apex Court in the case of C.N.Rudramurthy v. K.Barkathulla Khan [(1998)8 SCC 275], emphasized the proposition of law on implied over-ruling in the context of law declared by the Apex Court in the case of Pratap Chandra Mehta [supra] about disagreement with the view of Delhi High Court in the case of Delhi Bar Council [supra] with regard to applicability of section 16 of the General Clauses Act.
5.9 Shri Mihir Joshi, learned Senior Counsel, appearing for petitioners in Special Civil Application No.4087 of 2012 has also adopted the above argument of Shri Mihir Thakore, learned Senior Counsel appearing for the petitioner of Special Civil Application No. 11351 of 2012.
5.10 It is alternatively submitted that this Court may refer the matter to Larger Bench, as provided under Rule 5 of the High Court Rules and/or to place before the Hon'ble the Chief Justice for constituting Larger Bench to consider the issue, as above.
6. Shri V.C.Vaghela, learned counsel for the private respondents has contended that no confidence motion is moved by following procedure prescribed under law and ratio laid down by the Full Bench of this Court in the cases of Posiya [supra], Motibhai Chaudhary [supra] still hold field and it cannot be said that the decision of Full Bench in the case of Posiya [supra] is either expressly or even impliedly over-ruled by the Apex Court in the decision of Pratap Chandra Mehta [supra]. That the Full Bench has taken different view than the than the view taken in the case of Bar Counsel of Delhi v. Bar Council of India [AIR 1975 Delhi 200], and therefore, any opinion expressed by the Apex Court in the case of Pratap Chandra Mehta [supra] and law laid down therein still hold field and the Apex Court has no occasion to consider the above decision directly or indirectly, and therefore, the contention of the learned counsel appearing for the petitioner that there exist no statutory provision for moving no confidence motion or convening any meeting to consider such no confidence motion, is misconceived. As there is no conflict in the subsequent decisions of the Apex Court in the case of Pratap Chandra Mehta [supra] and none of the above decisions of Posiya [supra], Motibhai Chaudhary [supra] are impliedly over-ruled, the petition deserves to be rejected.
6.1 It is further submitted that there is no requirement or necessity to refer the petitioner to Larger Bench or to the Hon’ble Chief Justice as contended by learned counsel for the petitioners. Learned Counsel has submitted as under:
6.2 It is submitted that judgment of the Full Bench is very clear and has taken different view from the case of Bar Council of Delhi and has held that the right to move no confidence motion by the elected members exists as inherit statutory right and in absence of contrary provisions in the law governing body, such right has to be read into the statute. The judgment of the Full Bench is binding as it is not over ruled by the Apex Court.
6.3 It is further submitted that the judgment in case of Motibhai Chaudhary [supra] of the Division Bench is also not over-ruled by the Apex Court and in the case of Pratap Chandra Mehta [supra] the said judgment has not been even considered, and therefore, till today the judgment exist and is a good law. It is further submitted that the Apex Court in Pratap Chandra Mehta [supra] was dealing with the case under the Advocates Act and the question was whether the provisions of rules 121 and 122A of the State Bar Council of Madhya Pradesh are ultra vires to section 15 of the Advocates Act, 1951. The Apex Court did not consider the judgment of the Full Bench of this Court reported in the case of Posiya [supra], and therefore, the judgment of the Full Bench as well as the Division Bench hold the ground till today.
6.4 It is further submitted that the judgment in the case of Bhanumati Etc. Etc. v. State of U.P. [(2010(12) SCC 1], it is specifically stated that democracy demands accountability and transparency in the activities of the chairperson and he/she should enjoy continuous confidence of the majority. It is further submitted that even the decision of the Full Bench in Special Civil Application No. 10128 of 2011, Full Bench of this Court relying on Posiya [supra] case, this Court was of the view that it is the confidence of the elected members which is of paramount consideration and no technicalities can be allowed to operate so as to frustrate the real will and desire of the elected representatives.
6.5 Learned counsel for the private respondents has thoroughly and extensively referred to the decision in the case of Posiya [supra] and submitted that in para 62 of the above decision the Full Bench has taken a different view from the observations and findings of Bar Council of Delhi [supra] which fell into consideration of the Apex court in the case of Pratap Chandra Mehta [supra] and the Full Bench of this Court held that, ...`not as a common law right, but an inherent statutory right exists in the members of the elected body to remove its leader by no confidence motion in accordance with some procedure by which he has elected and in the absence of contrary provisions in the law governing such elected body such right has to be read into the statute'. It is, therefore, submitted that the conclusion of the Full Bench was independent of Delhi High Court in the case of Bar Council of Delhi [supra]. Therefore, it cannot be said that the decision in the case of Posiya [supra] is over-ruled.
6.6 Learned counsel for the private respondents would also contend that the petitioner is appointed and not elected as Chairman of Banaskantha District Cooperative Purchase & Sale Union Limited, and therefore, the law laid down in the cases of Posiya [supra], Motibhai R. Chaudhary [supra] still hold good in the context of Section 16 of the Bombay General Clauses Act, on the basis of principles governing institutions and bodies functioning on the basis of majority while making decisions. Learned counsel further submitted about the voluminous turnover and nature of business of the cooperative purchase and sale union and consequences attached to the decision taken by a person having no majority or confidence of elected members.
6.7 Learned counsel for the private respondents relied on the following decisions:
[1] Bhanumati Etc. Etc. v. State of U.P. [(2010(12) SCC 1]
[2] Nandlal Bavanjibhai Posiya [supra]
[3] Motibhai R. Chaudhary, Chairman v. Registrar, Coop. Societies [2005(1) GLH 270]
[4] Afjal Imam v. State of Bihar & Ors. [2011 AIR SCW 2722]
[5] Jayendrasinh Bhupatsinh Diama v. State of Gujarat through Additional Secretary (Inquiry) & Ors. In Special Civil Application No.10128 of 2011 dated 17.11.2011.
[6] Bhavarlal Labhchand v. Kanaiyalal Nathalal Intwala [1985 GLH 989]
6.8 Learned counsel for the respondents further submits that if a person loses confidence or majority of the members in the democratic set up of the cooperative society and/or agriculture produce market committee, he has no legal and moral right to continue on the post and continuation of such person in absence of support by the majority would result into anomalous situation and virtually non-function of the specified cooperative society resulting into a complete standstill of the functions to be performed under the Act by such society.
7. Upon consideration of submissions made by learned counsels for the parties and on perusal of provisions of the Act, 1961 and Rules, 1965, there are no statutory provisions either under the Act or Rules to move no confidence motion against the elected Chairman / Vice-Chairman of the cooperative society and to convene a meeting to consider such no confidence motion. The Full Bench in the case of Posiya [supra] placed reliance on the provisions of Rule 33(2) of the Rules, which reads as under:
“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 may be. 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, authorized 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 authorized 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-rules (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."
7.1 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, authorized 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 authorized 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.
Sub-rule [3] of Rule 33 is with regard to casual vacancy qua Vice-Chairman.
7.2 The Full Bench decision of this Court in the case of Posiya [supra] fell into consideration before the Division Bench of High Court Madhya Pradesh at Jabalpur in Writ Petition No.637 of 2011 in the context of no confidence motion moved against the Chairman / Vice-Chairman of the State Bar Council of Madhya Pradesh under Section 15 of the Advocates Act and Rule 122A of the State Bar Council Rules provides for removal of Chairman / Vice-Chairman by no Confidence by specific majority of elected members of the Bar Council subject to conditions specified therein and the law held by Full Bench of this Court that [i] though there was no provision in the Act or statutory Rules for removal of elected Chairman of the Committee, the words “ceasing to hold office for any reason” include the removal by a no-confidence motion; and (ii) if a holder of an office is elected by a simple majority, he can be removed (through no-confidence motion) by a simple majority (even in absence of a statutory provision for such removal) borrowing the analogy based on Section 16 of the General Clauses Act, was not subscribed. That legality and validity of the decision as above of the Madhya Pradesh High Court was considered by the Apex Court in the case of Pratap Chandra Mehta [supra]. Even the decision in the case of Bar Council of Delhi [supra] taking a view on the basis of Section 16 of the of Bombay General Clauses Act, was not approved by the Apex Court.
7.3 In view of the above it is necessary to re-visit paragraphs 35 to 67 of the decision in the case of Posiya [supra]. The said paragraphs read as under:
“35. The procedure for convening meeting and transacting business of the Committee is to be found in Rule 35. Sub-rule (5) of Rule 35 which is quoted below allows business to be transacted by the committee by the vote of majority of the members present at the meeting :-
"35(5). All questions which may come up before the committee at any meeting shall be decided by the vote of the majority of the members present at the meeting and in every case of equality of votes the person presiding over a meeting shall have and exercise a second or casting vote."
36. Under Sub-rule (6) of Rule 35, 1/3rd of the number of members of the Market Committee is to form quorum for the meeting. If there is quorum available for a particular business in a meeting, all decisions can be taken by vote of the majority of the members. Under Sub-rule (7) of Rule 35, the Director is authorized to attend any meeting of the Market Committee, although he will not have any right to vote. It is obligatory for the Secretary under Sub- rule (8) to attend every meeting of the Market Committee, to express his views and explain any matter under discussion, although he also has no right to vote or make any proposition. Sub-rule (1), (5), (6), (7) and (8) of Rule 35 which are relevant for the purposes of these cases are quoted here as under :-
"35. Meeting of the Market Committee - (1) Every meeting of the Market Committee other than the one referred to in Sub-rule (1) or Rule 31 of Sub-rule (2) of rule 33 shall be presided over by the Chairman or in his absence by the Vice-Chairman or in the absence of both by a member elected by the meeting to preside for the occasion.
(5) All questions which may come up before the committee at any meeting shall be decided by the vote of the majority of the members present at the meeting and in every case of equality of votes the person presiding over a meeting shall have and exercise a second or casting vote.
(6) One-third of the number of the members of the Market Committee shall form a quorum for the meeting of the Market Committee. If there be no quorum, the meeting shall he adjourned to another date and at the adjourned (the business) of the original meeting shall be disposed of, whether there is a quorum or not.
(7) The Director or any person authorised by him in this behalf shall be entitled to attend any meeting of the Market Committee but they shall not be entitled to vote.
(8) The Secretary shall attend every meeting of the Market Committee and may express his views or explain any statement of facts, in regard to any subject under discussion but he shall not be entitled to vote upon, or make, any proposition at such meeting."
37. Rule 33 and its Sub-rules already reproduced in earlier paragraphs above are most important to be examined for deciding the main question of existence or otherwise of a right to the members of the Market Committee to move and pass a motion of no-confidence.
38. Sub-rule (1) of Rule 33 prescribes two years tenure to Chairman or Vice-Chairman and he can continue in office until new incumbent takes over on expiry of his term. First proviso to Rule 33(1) provides that Chairman or Vice- Chairman shall continue in office to discharge current duties, till a new Chairman or Vice-Chairman is elected and takes over charge. Second proviso to Sub-rule (1) of Rule 33 is pertinent, which says "provided further that if such person ceases to be a member of the Market Committee, he shall cease to hold the office of Chairman or Vice-Chairman, as the case may be". The second proviso quoted above makes it explicit that continuance of membership of the Market Committee is necessary for holding the office of Chairman or Vice-Chairman as the case may be. It is only by virtue of his membership of the committee that a Chairman or Vice-Chairman gets elected to those offices. In accordance with the provision of Section 13 a member of the committee can be removed by the recommendations of at least 2/3rd of the whole number of members on the Committee, if the member is found guilty of neglect or misconduct in the discharge of his duty or of any disgraceful conduct or he has become incapable of performing his duties as a member. Proviso below Sub-section (1) of Section 13 of the Act requires that resolution recommending removal of member has to be passed by the Market Committee, only after giving the concerned member a reasonable opportunity of showing cause, why such recommendation of the Director be not accepted. By second proviso of Sub-sec. (1) of Section 13, he is also required to be given a reasonable opportunity of being heard.
39. In the course of arguments on behalf of the petitioners/appellants, it was argued that such detailed procedure as is to be found for removal of a member under Section 13 of the Act is not provided for moving a no-confidence motion against Chairman or Vice-Chairman in the Agricultural Produce Markets Act or Rules.
40. Under Section 14 of the Act, several circumstances are stated under which an elected or nominated member shall cease to hold office and such circumstances inter alia include his cessation of membership by the electorate of which he was elected. If the member is of the category under Clause (i) of Sub-section (1) of Section 11, namely, an agriculturist, grant of traders license to him may result in cessation of his membership as an agriculturist, and if he is nominated by a local authority, his membership in the Committee ceases, if he ceases to be a councillor, or member of local authority or is granted a license of trading which would take him out of category of a nominee of the local authority.
41. Similarly, the second proviso of Sub-rule (1) of Rule 33 lays down that if a Chairman and Vice-Chairman ceases to be a member of the Market Committee under circumstances like those mentioned in Sections 13 and 14 of the Act, he would automatically cease to hold the Office of Chairman or Vice-Chairman as the case may be.
42. Sub-rule (2) of Rule 33 needs critical examination, as it answers the question of existence of power of. passing of no-confidence in the Committee. Sub-rule (2) of Rule 33 reads :
"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."
Sub-rule (2) of Rule 33 further reads :
"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."
43. Similar provision is to be found in Sub-rule (3) of Rule 33, stating that in the event of casual vacancy in the office of Vice-Chairman instead of Director, the Chairman shall call a meeting of the Market Committee, to elect another Vice-Chairman for filling the vacancy.
44. The language of Sub-rule (2) of Rule 33 is required to be noted and to be applied to various situations in which office of Chairman or Vice Chairman may fall vacant. The contention advanced on behalf of the petitioners was that office of Chairman or Vice-Chairman may fall vacant only by death, resignation, or ceasing to hold office by him for reason of loss of his membership of the committee in the circumstances like Sections 13 and 14 of the Act.
45. The contention advanced by petitioners on interpretation of second proviso to Sub-rule (1) and Sub- rule (2) of Rule 33 does not seem acceptable. What is to be noted from the plain language of Sub-rule (2) of Rule 33 is that after the words like "dying", "resigning", the expression used is "or ceasing to hold office for any reason before the expiry of his term of office". The above expression "ceasing to hold the office for any reason" cannot be restricted to merely reason contained in second proviso to Sub-rule (1) of Rule 33. Under the second proviso, the Chairman or Vice-Chairman, as the case may be, shall cease to hold his respective office, if he ceases to be a member of the Market Committee. If the Legislature wanted to restrict the application of Sub-rule (2) on matter of filling casual vacancy only to the event contemplated in second proviso to Sub-rule (1) of Rule 33, i.e., cessation of his office; consequent upon cessation of his membership of the committee, Sub-rule (2) of Rule 33 would have been worded differently. In that situation, the subordinate legislation under Sub-rule (2) of Rule 33 could have very easily used the expression "ceasing to hold the membership of the Market Committee in terms of second proviso to Rule 33". Instead the use of the wider expression "ceasing to hold the office for any reason" covers situations and contingencies inclusive of the contingency covered by second proviso to Sub-rule (1) of Rule 33, namely, cessation of membership of the committee.
46. A vacancy in the office of the Chairman and Vice- Chairman may arise by death, resignation, or loss of membership of the committee, but casual vacancy may also arise for many conceivable reasons, like conviction and imprisonment of the holder of elected office, by his physical or mental disability, by his continuous absence and want of whereabouts, and many other similar situations, including his removal by no-confidence motion. The language in Sub-rule (2) of Rule 33 uses a wide expression "ceasing to hold office for any reason" and second proviso under Sub-rule (1) of Rule 33 is merely one such reason along with death or resignation.
47. In our considered view, in the expression "ceasing to hold office for any reason" would be included "removal or recall of Chairman or Vice- Chairman by moving and passing of a no- confidence motion against him". This right of members to remove holder of elected office for loss of confidence is to be found in the provisions of the main Act and the Rules, and it is not to be inferred by implication as part of a common law right. Where a statute itself permits passing of a no- confidence motion, like any other business transacted in the meetings of the committee by simple majority, it is not necessary for us to go to the external aid of comparing other legislation in Municipalities and Panchayats Acts, and on that comparison to come to the conclusion that such right in the elected body of its members does not exist under the provisions of the Agricultural Produce Markets Act.
48. As we have taken note of the Rules and quoted them above, election to the Office of the Chairman and Vice- Chairman can be made by the members of the Committee with quorum of l/3rd by simple majority. If the election to the Office can be made by l/3rd members present as the quorum, by simple majority, a no-confidence motion to remove or recall a member elected to the Office of Chairman or Vice-Chairman by simple majority with same 1/3 quorum is permissible and not expressly prohibited by either the provisions of the Act or the Rules.
49. The learned single Judge (M. S. Shah, J.), in the order impugned in L.P.A. No. 1451 of 1997 rightly took recourse to Section 16 of the Bombay General Clauses Act :-
"16. Power to appoint include power to suspend or dismiss. - Where, by any Bombay Act or Gujarat Act a power to make any appointment is conferred, then, unless a different intention appears, the authority having powers to make the appointment shall also have power to suspend or dismiss any person appointed by it in exercise of that power."
50. The Division Bench of Bombay High Court in the case of Hindurao Balwant Patil and Anr. v. Krishnarao Parshuram Patil and Ors., reported in AIR 1982 Bom. 216 did not apply the provisions of Section 16 of the General Clauses Act to a similar situation while considering provisions of Maharashtra Cooperative Societies Act. It held that Section 16 is restricted in its application to holders of non-elective offices. From the language of Section 16, it is not possible to give the Section such restricted application. As has been rightly held by the learned single Judge (M, S. Shah, J) that election to the office of Chairman and Vice-Chairman is one of the modes of appointment, and application of Section 16 of General clauses Act cannot be restricted to non-elective offices. Decision of Federal Court (which was the Apex Court before the Constitution) in the case of Kutoor Vengayil Rayarappan Nayanar v. Kutoor Vengayil Valia Madhai Amma and Ors., AIR 1950 FC 140 supports our conclusion. In that case, the provisions of Section 16 of the General Clauses Act were made applicable to read in the power of Court under Order 40, Rule 1 of C.P.C. 'to appoint a receiver' 'the power to remove him'.
51. Our conclusion, therefore, is that moving of a no-confidence motion and passing the same by simple majority is permissible and not expressly prohibited by either the provisions of the Agricultural Produce Market Act or the Rules. In fact, as we have read and construed, under Rule 33{2) and Rule 35 (quoted above) passing of no-confidence motion against Chairman and Vice-Chairman is one of the reasons contemplated in the Rules by which vacancy is created in those offices and which are required to be filled by the Director by calling a meeting of the Committee for the purpose.
52. On behalf of the petitioners, it is urged that under the Agricultural Produce Markets Act and the Rules, no procedure has been indicated for moving and passing a no-confidence motion and for grant, of opportunity to the holder of the elected office against whom the motion is moved. As we have examined the provisions of the Act and the Rules in detail and discussed them above, the contention cannot be accepted that no procedure is indicated under which a no-confidence motion can be moved and passed. It is true that there is no express provision for a minimum prescribed number for moving a motion by the members and there is also no prescribed majority by which it can be passed, but as we have held above, in the absence of such a provision of a requisite majority for passing and moving it, no-confidence motion like any other subject or agenda in a meeting, can be passed by simple majority. As we have held above, if the election in a meeting with requisite quorum can be made by simple majority to the post of Chairman/Vice- Chairman, a no-confidence motion can be moved and be passed by simple majority against the holder of the post.
53. So far as the procedure is concerned, Rule 35 of the Agricultural Produce Markets Act which contain a detailed procedure is applicable for passing a no confidence motion. The procedure of meeting for electing Chairman and Vice-Chairman, the functions and powers of the Chairman and the Vice-Chairman and other incidental provisions for conducting the business of the committee are contained in Part IV of the Rules. Rule 76 empowers the Director of Agricultural Marketing and Rural Finance, Gujarat State, to call meeting of a Market Committee, on requisition from at least half of the members of the Market Committee or on his own motion, if he is satisfied that there is an urgency for calling a special meeting of the Market Committee for considering matter of immediate importance of the working of the market. Rule 76 deserves to be quoted as this is the provision which can apparently be invoked by the members proposing to move a motion of no-confidence against the holder to the elected office of Chairman and Vice-Chairman.
"76. Authority empowered to call meeting of Market Committee - On requisition from at least half of the number of members of the Market Committee or of his own motion, the Director may, if he is satisfied about the urgency of the matter, call a special meeting of the Market Committee to consider matters of immediate importance for the working of the market."
54. Sub-rule (1) of Rule 35 states "every meeting of the Market Committee other than one referred to in Sub-rule (1) of Rule 31 (i.e., for first election of the Chairman and the Vice-Chairman) or Sub-rule (2) of Rule 33 (for filling a vacancy in the office of Chairman and Vice-Chairman through the Director) shall be presided over by Chairman, or in his absence by the Vice Chancellor or in the absence of both by a member elected by the meeting to preside for the occasion.
55. Sub-rule (I) of Rule 35 is available for passing a no- confidence motion when it is moved. Such meeting, if the motion is against the Chairman and the Chairman is present, can be presided by himself, and if he is absent by the Vice-Chairman. If both are absent, the meeting can be presided by a member elected by the meeting.
56. In the case of no-confidence motion, if the Chairman or Vice-Chairman as the case may be, is present in the meeting, he will have full opportunity to participate in the meeting and will get opportunity to speak on the no- confidence motion and place his point of view before the members to regain confidence. Sub-rule (4) of Rule 35 provides "that the person presiding over the meeting shall be entitled to speak and vote on all questions at the meeting". This Rule permits Chairman or Vice-Chairman, as the case may be, if he is not presiding the meeting to speak and vote. If he is not presiding the meeting, he is entitled to participate and speak qua member of the meeting. As in case of an other meeting, a meeting called for passing no-confidence motion will also require three days clear notice with specification of time and place at which such meeting is to be held and all members including Chairman or Vice-Chairman against whom no- confidence motion is proposed are required to be served with the notice of the meeting. A copy of the notice of the meeting is also required to be sent to the Director or his authorised representative. Sub-rule (7) of Rule 35 provides, that the Director or his authorised representative shall be entitled to attend any meeting, but he shall not be entitled to vote. The presence of Director or his authorised representative in every meeting including in a meeting specially called for passing a no- confidence motion, will ensure smooth holding of such a meeting with due participation of all the members and grant of opportunity to participate and speak to the holder of the elected office against whom the no- confidence motion is proposed to be moved and passed. Under Sub-rule (8) of Rule 35, it is obligatory for the Secretary of the committee to attend every meeting to express his views and explain facts concerning the topic or agenda under discussion. Secretary, is thus responsible for proper conduct of every meeting of the Market Committee, although, he has no right to vote or to make any proposal in the meeting.
57. The examination of the procedure of holding meeting under Rule 35 as discussed above, covers in our considered opinion, a special meeting called by members for passing a no-confidence motion by simple majority.
58. A contention was also advanced that there are no Specific Rules regulating the procedure of moving of a no- confidence motion in a particular manner and in the prescribed form with stating grounds on which the motion is moved, as is to be found in the provisions of the Municipalities and Panchayats Acts, particularly in Education Committee of Panchayat. Reference in this respect is made to Gujarat Panchayats (Procedural) Rules, 1997 which were published in the Gazelle of Government of Gujarat Extraordinary Part IA No. 29 on 6-3-1997. (See : 1997 GCD Gujarat Section Part II at page 147). On the basis of the above Procedural Rules applicable to Panchayats, it is pointed out that it is only against Sarpanch/President or Upa-Sarpanch/Vice President (under Rule 20} and against the Chairman of the Education Committee (Rule 48), that no-confidence motion can be moved in prescribed form A and B respectively provided under the Rules. On the basis of the prescribed form A and B for moving no-confidence motion, it is pointed out that it contemplates specification of the reasons for moving the no-confidence motion. Such a provision or procedure, it is contended, being absent in the Agricultural Produce Markets Act and Rules, a no- confidence motion cannot be allowed to be moved without specification of reasons or grounds for moving the motion and without grant of opportunity to the holder of the elected office against whom motion is moved so as to allow him to meet those grounds and reasons to persuade the members to repose confidence in the holder of the office.
59. As has been held by us above, democratic institution transacts its business on majority opinion of its members. This is an unwritten Rule, tradition and work culture of every elected body. It is only when there is a departure from this tradition or unwritten Rule that Rules of business, bye-laws or statutes governing the democratic institutions may provide for particular majority of 2/3rd or less for taking decisions. Decision making process of democratic institution requires formation of opinion for resolutions by majority of its members. Enjoyment of confidence by the leader of the democratic body is essential in decision making process and it is more necessary for implementation of the decisions of the majority. Take for example that a particular decision is taken by majority, but due to lack of confidence enjoyed by the leader, the decision is not carried out, a conflict, and some times, a stalemate will be created in the working of the elected body. As has been quoted above, Section 19 of the Agricultural Produce Markets Act requires that every contract entered into by 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 situation might arise where the Chairman, because he has lost confidence, is unable to obtain the signatures on a contract to be executed on behalf of the committee, although a resolution in favour or against such a contract had already been passed. Similarly, Rule 32 of the Agricultural Produce Market Rules confers powers for performing important functions by the Chairman and Vice-Chairman, such as, to preside over the meetings, conduct business, watch over the financial and executive administration of the Market Committee, exercise supervision and general control over the acts and proceedings of the employees in matters of executive administration, and in case of emergency, direct execution or stoppage of any work, which may require sanction of the Market Committee. If a Chairman or Vice- Chairman has lost confidence of the members of the Committee, action taken by him under Rule 32 in discharge of his duties and functions will be criticised or opposed and will not get any support from the members. Thus, loss of confidence in the leader of an elected body would many times hamper smooth working of the elected body, and some times, may make it impossible for him to carry on the functions of the committee due to internal feuds and conflicts. The work culture of a democratic body inheres in it the right of its members to move a no- confidence motion against their elected leader, which is a concomitant of the right to elect the leader. No- confidence motion can be passed by simple majority against the holder of the elected office, who is elected by simple majority, unless the Rules of business or bye-laws or statute indicate a contrary intention or prohibit passing of a no-confidence motion. We do not find any force in the submission made that no-confidence motion has to be moved only on reasons to be specified in writing in the notice proposing the motion and has to be passed after grant of opportunity on those reasons to the holder of office against whom it is moved. Supreme Court had occasion in the case of Babubhai Muljibhai Patel v, Nandlal Khodidas Barot and Ors., reported in AIR 1974 SC 2105 to consider the nature and requirement of a no- confidence motion in local bodies, particularly under Gujarat Municipalities Act, the provisions of which came up for consideration before it. Comparing 'no-confidence motion' with a 'motion for censure', the Supreme Court observed thus :
"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 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 guilty of some impropriety or lapse by act or omission and it is because of that lapse or impropriety that they are being censure. 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."
60. From the observations quoted above, it is clear that no-confidence motion does not require statement of any reasons for moving the motion nor does it require passing of motion by stating reasons for passing the same. As has been rightly emphasised by the Counsel for the respondents, confidence in the elected holder of office is the soul of democracy. All democratic institutions function on mutual confidence between the members and their leader. Loss of confidence without anything else, which is based on objective basis, is sufficient to move the motion. The principles of natural justice are not breached where a no-confidence motion is moved with due notice to the person against whom it is moved and he gets an opportunity in the meeting for passing the motion to participate and have his say to regain confidence of the elected body. Merely because in the Agricultural Produce Markets Act and the Rules, there is no Rule and Form prescribed for moving the motion with requirement of specification of reasons and grounds for moving and passing it, it cannot be held that a no-confidence motion cannot be passed against the Chairman and Vice- Chairman of Market Committee. Justice M. S. Shah in considering absence of similar express provision of no- confidence motion against Chairman of Social Justice Committee in Gujarat Panchayats Act and the Rules, read and recognised such a provision, as a necessary adjunct of the power of committee to elect. In the case of Narmadaben [supra] reported in 1998 (1) GLR 225, the following quoted observations of M. S. Shah, J. have our respectful approval, as it accords with the views expressed by us above :-
''I have heard the learned Counsel for the parties at length. It is true that the provisions of the Act do not specifically provide for removal of the Chairman of the Committee by passing a vote of no- confidence. However, it is required to be noted that the provisions of Section 123(9)(b) provide for the term of the Committee making it co-extensive with the duration of the Panchayat which is five years. However, no term is provided for the office of the Chairman of the committee. There is, therefore, nothing in the provisions of Section 123 of the Act which gives any fixed term to the Chairman of the committee although the members of the Committee get term co-extensive with the duration of the Panchayat. If the legislature intended to confer any such fixed term on the Chairman of the Committee the legislature would have clearly provided so.
It is also true that there are specific provisions for removal of Sarpanch/ Upa-sarpanch of the Gram Panchayat, President/Vice President of Taluka Panchayat under Sections 56, 70 and 84 respectively, but there is no such provision for chairman of any Committee. But Mr. Jani has rightly pointed out that in all those provisions specific provision is made requiring passing of no- confidence motion by 2/3rd majority and not by a simple majority. It is a basic tenet of democracy that an elected body has the power to elect its office-bearers and if the body is not held to have power to appoint or remove its officebearers, the body will never be able to enforce accountability or responsibility of its office-bearers or control the action of its office-bearers. For instance, if one looks to the constitution of the Social Justice Committee, it comprises of five members and if, as in the instant case, out of five members four members have no-confidence in the Chairman and if this situation is allowed to continue till expiry of the term of the Committee (which event will take place in July, 2000 in the instant case), there will be constant dead-lock and the Committee will not be able to function effectively and carry out the duties assigned to it. It must, therefore, be held that the body which has power to elect its officebearers by a simple majority has also the inherent or implied power to remove them by provisions prescribing a special procedure or special requirement, such as the requirement for 2/3rd majority to remove the President/Vice President of the taluka Panchayat/District Panchayat."
61. Learned single Judge M. S. Shah, J. in taking the above view placed reliance amongst many other decisions, mainly on the Division Bench decision of Delhi High Court, in the case of Bar Council of Delhi v. Bar Council of India, reported in AIR 1975 Del.
200. In Bar Council case, a similar question arose, as to whether, in the absence of specific provision under the Advocates Act, Chairman of Bar Council, can be removed by the members of the Bar Council, by moving a no- confidence motion. The Division Bench of Delhi High Court took the view that the general or common law is that those who have elected have a right to remove the person elected by them, and if this general principle is to be departed from, the statute or law governing the elected body should contain such a provision indicating a contrary intention. In absence thereof, the general or common law will prevail, that those who elect can be removed by moving a no-confidence motion. Such right is inherent in the elected body. Otherwise, holder of elected office would become irremovable, although, he has lost the confidence of the body and he is acting against the interest of the body. The following observations of Division Bench of Delhi in the case of Bar Council (supra) deserve to be quoted :
"The view expressed by the majority of the Bar Council of India that a rule cannot be made under Section 15 of the Advocates Act for the removal of the Chairman of the State Bar Council leads to the result (hat once elected such Chairman is irremovable. He would go out of office only when the State Bar Council does at the expiry of its statutory tenure. Such a result can be justified only if the common law stated above has been changed by the statute.
The view of the Bar Council of India is, on the other hand, based on (the very silence of the statute on this point. We are of the opinion that such silence indicates that the common law regarding the removal of the holder of an office remains unchanged. The statute does not, therefore, have to say that the Chairman of the State Bar Council would be removable by a resolution of no- confidence. The reason is that such power of removal is inherent in the Bar council which elects its Chairman. The power given to the State Bar Council to elect its Chairman is the codification of only a part of the common law. Such codification does not change the other part of the common law which implies in the State Bar Council the power to remove the Chairman so elected. Just as rules can be made under Section 15 to carry out the expressed power of the Bar Council to elect the Chairman, it would appear that rules may also be made to carry out the implied power of the State Bar Council to remove the Chairman. The two powers are inseparable in common law. They can be separated only by a statutory intervention. So long as this is not done, they would remain connected with each other even though only one of the powers, namely, the power of election has been made statutory while the other power, namely, the power of removal has been left to be implied. If such a power is not implied, the mere codification of the power to elect would result in a change in the common law. There is no warrant for implying such a change. On the contrary, the construction of the statute in the light of the common law implies such a power in the State Bar Council."
62. Taking somewhat a different view from the observations of the Delhi High Court in the case of Bar Council (supra), we have held that not as a common law right, but an inherent statutory right exists in the members of the elected body to remove its leader by no-confidence motion in accordance with the same procedure by which he is elected and in the absence of contrary provision in the law governing such elected body, such right has to be read into the statute.
63. On behalf of the petitioners/appellants, heavy reliance has been placed on the Division Bench decision of Andhra Pradesh High Court (1975 ILR 242) and Full Bench decision of Punjab and Haryana High Court (AIR 1991 P&H 149). It is also pointed out that the learned single Judge (M. S. Shah, J.), in his order impugned in the Letters Patent Appeal relied on the decision of single Bench of Andhra Pradesh High Court (AIR 1972 AP 342) (supra) which was overruled by the Division Bench decision (supra) and decision of Punjab and Haryana High Court which was overruled by the Full Bench decision (supra) of the same Court.
64. The Division Bench decision of Andhra Pradesh High Court and Full Bench decision of Punjab and Haryana High Court arose from the provisions of Co-operative Societies Acts of the respective States. The Courts by taking external aid of comparable laws applicable to other local bodies, in which provisions of no-confidence with procedure of moving and passing it existed, came to the conclusion that absence of similar provisions in co-operative law indicates an intention contrary, and it is not permissible for the Court to read provision of no-confidence motion in co-operative law.
65. We do not consider it necessary to express any opinion on the correctness of the reasonings and conclusions contained in the decisions of Full Bench of Punjab and Haryana High Court and Division Bench decision of Andhra Pradesh High Court (supra), because we have construed the provisions of Agricultural Produce Markets Act and the Rules and the Panchayats Act and the Rules, as discussed above. Similarly, the decisions of Nagpur Bench of Bombay High Court (1960 LLJ 99) and Division Bench decision of Bombay High Court (AIR 1982 Bom 216) are not only distinguishable on facts, but to the extent they hold that provisions of Sections 16 of the General Clauses Act not applicable to elective office, we have expressed our respectful disagreement for the reasons mentioned above.
66. Our conclusion, therefore, both in relation to the Chairman and/or Vice-Chairman of Market Committee under the Agricultural Produce Markets Act and the Rules and Chairmen of various Committees of Panchayats under the Panchayats Act and the Rules, is that if a holder of office is elected by simple majority by the body in requisite quorum, he can be removed or recalled by a simple majority, in the absence of any provision prohibiting such a course or prescribing any particular procedure of moving the no-confidence motion with a particular majority and passing the same by a particular majority.
67. The decisions of Division Bench of Delhi High Court (AIR 1975 Del. 200) relating to no-confidence motion against Chairman of Bar Council and Division Bench decision of our own Court in Chimanbhai R. Patel (1983 (1) GLR 67) fully support the view taken by us and with which we have expressed our respectful agreement”.
[emphasis supplied]
7.4 In the case of Motibhai R. Chaudhary [supra], the Division Bench of this Court in paras 17 to 21A held as under:
“17. Contention No. 4:
On merits the learned counsel for the two appellants have vehemently submitted that the Managing Committee has no power to remove the elected Chairman on the ground of loss of confidence, because the Gujarat Cooperative Societies Act and the Rules thereunder or the bye-laws do not provide for any such contingency nor do they confer any such power on the members of the Managing Committee. The learned counsel have also placed reliance on the following decisions in support of their contention that an elected office bearer of a cooperative society can not be removed by passing a motion of no confidence, unless there is a specific statutory provision or bye law governing the elected body:-
1) AIR 2002 KERALA, 325. S Lakshmanan vs. V. Velliankeri
2) AIR 1991 P & H, 149. Jagdev Singh vs. Registrar, Co.Op. Societies
3) AIR 1982 Bombay, 216 Hindurao vs. Krishnarao
4) ILR 1975 A.P., 242 Veermachaneni Venkata Narayana vs. The Deputy Registrar of Co-op. Societies, Eluru, West Godavari District & Ors.
It is contended that the decision of the Full Bench of this Court relied upon by the learned Single Judge dealt with a case under the Agricultural Produce Markets Committee Act, and not under the Cooperative Societies Act.
18. Chapter VII of the Act bears the title, "Management of Societies". Section 73 provides that subject to the provisions of the Act and the rules, the final authority of every Society shall vest in the general body of members in general meeting, summoned in such a manner as may be specified in the bye-laws. Section 74 provides for the managing committee in the following terms:-
74. Committee, its powers and functions.- The management of every society shall vest in a committee, constituted in accordance with this Act, the rules and bye-laws, which shall exercise such powers and perform such duties as may be conferred or imposed on it respectively by this Act, the rules and the bye-laws :
Section 74C provides that election of members of the committees and of the officers of the Committee of authorized societies shall be subject to the provisions of Chapter XI-A and shall be conducted in the manner laid down by or under that Chapter.
Section 76A provides for appointment or removal of Managing Director or Chief Executive Officer to be made or done with the previous approval of the Registrar in case of the class of Societies to be specified by notification in the Official Gazette.
Chapter XI-A provides for elections of committees and officers of specified societies i.e. societies specified in Section 74C including dairy cooperative societies. Sections 145-B to 145-Z lay down the procedure for elections to the managing committee and other committees of such specified societies.
19. Reference may also be made to the bye laws of respondent no.3 Federal Society. Bye-law No.25 provides that the final authority of the Federal Society shall vest in the general body.
Bye-law No.27(3) which provides for election of the managing committee by the general body in accordance with the election rules, also provides through clause (12) that any elected member of the managing committee may be removed by a 3/4th majority of the members of the general body remaining present at any general meeting. Clause (13) of the said bye-law also provides for removal of the Managing Director for which the general body may deliberate and take decision but such decision can be implemented only after receiving approval from the NDDB so long as any loan and interest is outstanding from the Federal Society to the NDDB. Bye-law No.10 provides for removal of a member of the general body by a 3/4th majority on account of certain defaults such as non- payment of his dues or conviction for a moral turpitude or on account of insolvency etc..
Bye-law No.35(1) provides for constitution of the managing committee of respondent No.3- Federal Society which is to consist of 21 members out of which 16 members shall be elected by the general body of the Federal Society. Bye-law No.35(3) provides that the term of the managing committee shall be three years or till the next elections. If any member of the managing committee expires or there is vacancy for any other reasons, the vacancy shall be filled in by co-option of any person who is eligible to be elected as a member of the managing committee and his term shall be till the expiry of the term of the managing committee to which he is co- opted. Clause (5) of the said bye-law reads as under:-
"The managing committee constituted as above shall elect its Chairman and Vice-Chairman."
Clause (6) of the said bye-law provides that the managing committee shall have all the authority to manage the business of the Federal Society in accordance with the bye- laws and subject to the guidance of the general body through its resolutions. It is the managing committee which appoints the Managing Director and it determines the remuneration and terms and conditions of the Managing Director.
Clause (18) of bye-law No.41, also authorises the managing committee to make recommendation for removal of a member of the Federal Society as the member under bye- law (10) where a member could be removed by the general body by 3/4th majority and with the approval of the Registrar on the grounds of arrears, insolvency etc..
20. It is strenuously submitted on behalf of the appellants that bye law no. 35 providing that the managing committee shall elect its own Chairman and Vice Chairman cannot be construed as impliedly enabling any motion of no confidence being passed by the managing committee against the Chairman or Vice Chairman. It is, therefore, urged that it is only the general body of the Federal Society which can take a decision regarding removal of the Chairman, but the managing committee has no power or authority to pass any such resolution of no-confidence or to remove the Chairman under any circumstances. It is also submitted that the requisition has already been made for convening the extraordinary meeting of the general body of the society to express vote of confidence in appellant Shri Motibhai Chaudhari and, therefore, till such meeting takes place, there should not be any interim order to restrain Shri Motibhai Chaudhary from acting as Chairman.
21. A perusal of the relevant provisions of the Gujarat Cooperative Societies Act, the Gujarat Cooperative Societies Rules and the bye-laws of the Society makes it clear that there is no prohibition on the managing committee of a Federal Society or any cooperative society removing its Chairman by passing a vote of no-confidence. While the bye-laws provide for a three year term for the managing committee (bye-law No.35(3)) no term is provided for the Chairman and Vice-Chairman of the managing committee. Since the Chairman / Vice-Chairman is elected by members of the managing committee by a majority and since no term is provided for the Chairman/Vice Chairman, as per the provisions of Section 16 of the Bombay General Clauses Act, the managing committee also has the power to remove him by passing a vote of no-confidence by a simple majority. There is nothing in the provisions of the Gujarat Cooperative Societies Act, 1961, Gujarat Cooperative Societies Rules, 1965 or bye-laws of respondent No.3-Federal Society which negates the power of the managing committee available to it under Section 16 of the Bombay General Clauses Act. Although bye- laws provide for removal of a member of the Society by a three-fourth majority of the general body present at the meeting on the ground of default in payment, insolvency etc. and also for removal of a member of the managing committee by a two-third majority of the general body present at the meeting the bye-laws do not contain any provision which would even remotely take away the general power of the managing committee under Section 16 of the Bombay General Clauses Act that the power to appoint includes the power to remove.
21.A. Moreover, a Full Bench of this Court speaking through the then Chief Justice Hon'ble Mr Justice DM Dharmadhikari (as His Lordship then was) has already held in NANDLAL BAVANJIBHAI POSIYA & ORS Vs. DIRECTOR OF AGRICULTURE MARKETING & RURAL FINANCE & ANR, 2002 (2) GLR, 1132 as a general principle that a democratic institution transacts its business on majority opinion of its members. This is an unwritten rule, tradition and work culture of every elected body. It is only when there is a departure from this tradition or unwritten rule that the Rules of Business, bye-laws or statutes governing the democratic institutions may provide for particular majority of 2/3 rd or less for taking decisions. Enjoyment of confidence by the leader of the democratic body is essential in decision making process and it is more necessary for implementation of the decisions of the majority. If a particular decision is taken by majority, but due to lack of confidence enjoyed by the leader, the decision is not carried out, a conflict, and some times, a stalemate will be created in the working of the elected body. The loss of confidence in the leader of an elected body would many times hamper smooth working of the elected body, and some times, may make it impossible for him to carry on the functions of the committee due to internal feuds and conflicts. The work culture of a democratic body inheres in it the right of its members to move a no-confidence motion against their elected leader, which is a concomitant of the right to elect the leader. No- confidence motion can be passed by simple majority against the holder of the elected office, who is elected by simple majority, unless the Rules of Business or bye-laws or statute indicate a contrary intention or prohibit passing of a no-confidence motion. The Full Bench of this Court made the aforesaid observations which apply to elected bodies generally and not merely to the Agricultural Produce Market Committees.
The decision of a Division Bench of Bombay High Court and the decisions of Full Benches of Punjab & Haryana, Andhra Pradesh and Kerala High Courts relied upon by learned counsel for the appellants were also duly considered by the Full Bench of this Court. The view taken by the aforesaid High Courts that provisions of clause-16 of the General Clauses Act would not apply to the elected offices has not been accepted by the Full Bench of this Court. While concluding, the Full Bench observed as under:-
" In construing provisions of law regulating the constitution and working of an elected body, such interpretation should be preferred which ensures its smooth functioning, and any other interpretation which might create hindrance or stalemate in its functioning needs to be avoided".
The Full Bench of this Court agreed with the Division Bench of the Delhi High Court which held in Bar Council of Delhi vs. Bar Council of India, AIR 1975 Delhi 200, that the body which has the authority to elect its Chairman has the inherent and implied power to remove the Chairman. If the Chairman holds his office at pleasure, then he can be removed at will but if the Chairman holds his office otherwise than at pleasure, he can be removed only for cause after notice and hearing. The Delhi High Court had relied on the statement of law made in 19 Corpus Juris Secundum, pages 71-72 and in 19 American Jurisprudence 29, pages 545 and 547”.
[emphasis supplied]
7.5 In the case of Bar Council of Delhi [supra], the Delhi High Court, in paras 10 to 12 held as under:
“10. What is the common law relating to the removal from office of the holder thereof who is not a servant of anyone ? In answering this question, a distinction between two different meanings of the word "officer" may be borne in mind. A person may come to occupy an office either by appointment or by election. In either case, he may be an employee of a corporation or he may be only the holder of an office of the corporation and not its employee. The essence of the employment is the disciplinary power of the employer over the employee. This is expressed in the principle embodied in section 16 of the General Clauses Act that the power to appoint includes the power to suspend or dismiss. The power of suspension is mainly connected with the power to inquire into the conduct of the employee signifying the disciplinary power of the employer over the employee. This disciplinary aspect is not attached to the holder of an office which is not an employment. When the employer is not a single person but is a body of persons, the decision to employ is taken by such a body in a meeting by majority. Such a resolution may be analogous to an election. In this sense, an employee may be appointed by an election. In such circumstances, the process of appointment and election may be analogous (Hayman vs. Governors of Rugby School, (1874) 18 L.R. Equity Cases 28). But the occupation of an office by the holder thereof even by appointment and much more so by election is an entirely different process. The distinction between the two is not found to have been made by a Division Bench of this Court In Mohan Chandra v. The Institute of Chartered Accounts, when it was observed obiter that the principle of section 16 was relevant to the consideration of the removal of the elected President of the Institute of Chartered Accountants. Nor can it be said that every appointment results in an employment. An appointed arbitrator is not, for instance, an employee of anyone. In East India Film Studios v. P.
K. Mukherjee, , section 16 of the General Clauses Act was held inapplicable to the removal of an arbitrator firstly because he was not an employee and secondly because specific provisions for his removal inconsistent with section 16 of the General Clauses Act have been made in the Arbitration Act.
11. Quite irrespective of the question whether the office of the chairman of a State Bar Council is held at pleasure or for the same period for which the Bar Council is elected, the common law relating to the removal of the holder of an office is that the body which has the authority to elect its Chairman has the inherent and implied power to remove the Chairman. If the Chairman holds his office at pleasure, then he can be removed at will. But it he holds his office otherwise than at pleasure, he can be removed only for cause after notice and hearing. It would suffice to quote the following from 19 Corpus Jurisdiction Secundum, pages 71-72 :-
"The power of a motion is inherent in every private corporation as an incident of its being and may be expressly conferred by statute or charter in recognition, it has been said of at least one statute, of the inherent nature of the power. While ministerial officers and agents who are elected or appointed by the board of directors are removable at will, without a cause being assigned and without notice or a hearing, directors, trustees, and officers elected by the corporation at large may, by virtue of this inherent power, and irrespective of the existence of a provision for removal in the articles or bye-laws, be removed for cause, but not otherwise, and only after notice and a hearing or an opportunity of being heard."
To the same effect is the statement of law in 19 American Jurisprudence 2d, pages 545 and 547 and in Bouvier's Law Dictionary, 3rd edition. Volume I, page 190. The English common law relating to the removal or "a motion" of the holder of an office is stated as follows in Jewwitt's Dictionary of English Law at page 115:-
"In municipal boroughs, a removal from his office of a councillor by his fellow-councillors, frequently exercised before the Municipal Corporations Act, 1835, and not expressly abolished either by that Act or by the Municipal Corporations Act, 1882. The power of a motion is implied or -may be conferred by charter."
Similar statements of law occur in Wharton's Law Lexicon, 14th E edition, pages 59-60 and In 9 Halsbury's Laws of England, 3rd Edition, paragraph 67, with regard to an office held at pleasure.
12. The View expressed by the majority of the Bar Council of India that a rule cannot be made under section 15 of the Advocates Act for the removal of the Chairman of the State Bar Council leads to the result that once elected such Chairman is irremovable. He would go out of office only when the State Bar Council does at the expiry of its statutory tenure. Such a result can be justified only if the common law stated above has been changed by the statute. The View of the Bar Council of India is, on the other hand, based on the very silence of the statute on this point. We are of the opinion that such silence indicates that the common law regarding the removal of the holder of an office remains unchanged. The statute does not, therefore, have to say that the Chairman of the State Bar Council Would be removable by a resolution of no confidence. The reason is that such power of removal is inherent in the Bar Council which elects its Chairman. "The power given to the State Bar Council to elect its Chairman is the codification of only a part of the common law. Such codification does not change the other part of the common law which implies in the State Bar Council the power to remove the Chairman so elected. Just as rules can be made under section 15 to carry out the expressed power of the Bar Council to elect the Chairman, it would appear that rules may also be made to carry out the implied power of the State Bar Council to remove the Chairman. The two powers are inseparable in common law. They can be separated only by a statutory intervention. So long as this is not one, they would remain connected with each other even though only one of the powers, namely, the power of election has been made statutory while the other power, namely, the power of removal has been left to be implied. If such a power is not implied, the mere codification of the power to elect would result in a change in the common law. There is no warrant for implying such a change. On the contrary, the construction of the statute in the light of the common law implies such a power in the State Bar Council."
[emphasis supplied]
7.6 In the case of Pratap Chandra Mehta [supra], the Apex Court, in para 1 framed the questions to be considered in light of findings of M.P. High Court and held in para 12, as under:
“Leave granted. From the very simple facts of these cases, the following substantial questions of law and public importance arise for consideration of this Court:
(1) Whether the provisions of Rules 121 and 122-A of the State Bar Council of Madhya Pradesh Rules (for short, the `M.P. Rules') are ultra vires Section 15 of the Advocates Act, 1961 (for short, `the Advocates Act'), inter alia for the reason that there is no nexus between the rule making power of the State Bar Councils and the powers provided under Section 15(1) or 15(2)(c) of the Advocates Act? Was the delegation of legislative power under Section 15 of the Advocates Act excessive, inasmuch as it does not provide any guidelines for removal of office- bearers of the State Bar Councils?
(2) Whether despite the absence of the enabling provisions in the principal statute, namely, the Advocates Act, empowering subordinate State Bar Councils to enact provisions for removal of the office bearers of the State Bar Councils by `no confidence motions', such power could be read into the general clause of Section 15(1) of the Advocates Act?
(3) Whether Rules 121 and 122-A of the M.P. Rules are invalid for want of prior approval from the Bar Council of India?
12. Vide its detailed judgment dated 20th May, 2011, the High Court decided both the issues against the petitioners and dismissed the writ petitions while vacating the interim order. The High Court held as under:
“22. On point (E) of para 16 above, it was urged from the petitioner's side that if Section 15(1) of the Act is taken to be the source of power for framing Rules prescribing the tenure for an elected chairman, and prescribing curtailment such tenure through a no-confidence motion, then such delegation to subordinate legislation must be struck down as it confers wholly unguided and thus unfettered powers upon the delegate subordinate legislative Authority. In reply it could not be shown that there is any express guidance or that any policy guidance can be deciphered from all or any of the provisions of the Act or from the scheme of the Act, regarding what tenure, if any, should be permitted, and if so under what circumstances and by what process, subject to what restrictions.
23. A totally misplaced reliance was placed upon the case of V. Sudheer v. Bar Council of India [(1993) 3 SCC 176] which merely says that the State Bar Council under Section 24(1)(e) of the Act could have prescribed pre-enrolment training, but the Bar Council of India could not do so under Section 49 of the Act. `Hukam Chand v. Union of India [(1972) 2 SCC 601] was also unnecessarily cited. It deals with power to frame a rule with retrospective effect and has no relevance here. Two decision of the Supreme Court in the case of `Vasanlal Maganbhai vs. State of Bombay [AIR 1961 4] and in the case of `Agricultural Market Committee vs. Shalimar Chemical Works' reported in [(1997) 5 SCC 516 (para 26)] were cited from the petitioners side, both laying down the same principle, which needs to be discussed. The relevant part of the latter (1997) decision reads: [Agricultural Market Committee case, (1997)5 SCC 516, SCC P.525] “26. The principle which therefore emerges out is that the essential legislative function consists of the determination of the legislative policy and the legislature cannot abdicate essential legislative function in favour of another. Power to make subsidiary legislation may be entrusted by the legislature to another body of its choice but the legislature should before delegating, enunciate either expressly or by implication, the policy and the principles for the guidance of the delegates. However, the words of the Supreme Court immediately following the above quoted words bring out the implication. They read: [Agricultural Market Committee case, (1997)5 SCC 516, SCC P.525] `26……. The effect of these principles is that the delegate ........cannot widen or constrict the scope of the Act or the policy laid down thereunder. It cannot, in the garb of making rules, legislate on the field covered by the Act ’ We do not find the rule in question to be widening or constricting the scope of either the Act or any policy laid down under the Act. Nor is the Rule in question legislating upon any field covered by the Act. To the same effect is cited the case of `Addl. District Magistrate Vs. Sir Ra,' (2005) 5 SCC 451 (para 16).
27. This brings us to the last point raised by the petitioners. The decisions of the Delhi and Kerala High Court reported respectively in AIR 1975 Del 200 `Bar Council of Delhi Vs. Bar Council of Kerala Vs.....' were read out before us. It was pointed out that in the Delhi case common law was used to justify an implied power of removal of the elected Chairman on the ground that the statute had not changed the common law. The correctness of the law laid down in that decision was assailed by placing reliance on AIR 1954 SC 210 `Jagan Nath Vs. Jaswant Singh', (1982) 1 SCC 691 `Jyoti Basu Vs. Debi Ghoshal', (1984)1SCC 91 `Arun Kumar Bose Vs. Mohd. Furkan Ansari and (1992) 4 SCC 80 `Mohan Lal Tripathi Vs. District Magistrate'. And it was argued that concepts familiar to common law and equity must remain strangers to Election Law unless statutorily embodied. In respect of the Kerala High Court decision it was argued that the Court fell in error in reading the power of removal as `incidental'. It is not necessary to go into these arguments because as stated above the Rule regarding removal is not justified under Section 15(2) but under Section 15(1) of the Act, which is of wide amplitude and there is no reason to restrict the scope of Rule making power under Section 15(1) so as to exclude (i) prescription of tenure, or (ii) removal on a vote of no- confidence from the ambit of the Rule making power conferred by that provision.
28. Before moving on to the next issue, we may refer to a decision cited by the Respondent no.6 (of W.P. No. 6628). In this interesting decision by a Full Bench of Gujarat High Court in the case of `N.B. Posia Vs. Director' reported in AIR 2002 Guj 348 (PB) (relevant paragraphs are 46 and 66 of that law report) it has been held that though there was no provision in the Act or statutory Rules for removal of an elected Chairman of the Committee, yet (i) the words “ceasing to hold office for any reason” include the removal by a no-confidence motion and (ii) if a holder of an office if elected by a simple majority, he can be removed (through no-confidence motion) by a simple majority (even in absence of a statutory provision for such removal). With utmost respect to the said decision, we find ourselves totally unable to subscribe to either of the two propositions therein”.
It is the legality and correctness of the above reasoning that has been questioned before us in the present appeals.
[emphasis supplied] Thereafter, in the above case, the Apex Court in paras 75 to 82 held as under:
“75. Then it is contended that removal from an office is punitive. It being punitive, there has to be a just cause and adherence to the principles of natural justice by granting hearing before the removal from office is given effect to. To clarify, it is submitted that removal from an elected office, even in face of a valid rule, would have to meet these twin requirements of just cause and hearing, before a person can be removed from office. On the other hand, the learned counsel appearing for the respondents, while relying upon the judgment of the Delhi High Court in the case of Bar Council of Delhi v. Bar Council of India [AIR 1975 Del 200], contended that by application of the General Clauses Act, 1897 even in absence of any specific provision, the right of persons to elect a Chairman/Vice-Chairman would include the right to undo the same by moving a `no confidence motion'.
76. It needs to be noticed at the very threshold of consideration of this submission that `no confidence motion' cannot be equated in law to removal relatable to a disciplinary action or as a censure. It is stricto senso not removal from office, but a removal resulting from loss of confidence. It is relatable to no confidence and is not removal relatable to the conduct or improper behaviour of the elected person. Even the concept of `term' under the Rules, is referable to and is controlled by a super-imposed limitation of no confidence. This tenure cannot be compared to a statutory tenure as is commonly understood in the service jurisprudence.
77. The distinction between removal by way of `no confidence motion' and removal as a result of disciplinary action or censure is quite well accepted in law. They are incapable of being inter-changed in their application and must essentially operate in separate fields. The Court has always prioritized harmonious functioning of the State Bar Council. In the case of Afjal Imam v. State of Bihar and others, [JT 2011 (5) 19], the recall of a Mayor and the re-election of a different Mayor in his place has been held to implicitly shorten the term of the appointees of the previous Mayor, if such is in the interest of smooth functioning of the body.
78. Noticing this distinction, a Bench of this Court in the case of Babubhai Muljibhai Patel v. Nandlal Khodidas Barot [(1974) 2 SCC 706], while dealing with the question whether grounds for removal must necessarily be specified when passing a motion of no confidence, noticed the difference between `no confidence motion' and a censure motion and described the same as follows: [SCC pp.720-21 para19] “19. ….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 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 guilty 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. We may in the above context refer to page 591 of Practise and Procedure of Parliament, Second Ed. by Kaul and Shakdher wherein it is observed as under:
`A no-confidence motion in the Council of Ministers is distinct from a censure motion. Whereas, a censure motion must set out the grounds or charge on which it is based and is moved for the specific purpose of censuring the Government for certain policies and actions, a motion of no confidence need not set out any grounds on which it is based. Even when grounds are mentioned in the notice and read out in the House, they do not form part of the no- confidence motion’
79. Still, in another case, titled B.P. Singhal v. Union of India & Anr. [JT 2010 (5) SC 640], the Court, while dealing with the doctrine of pleasure in relation to the term of the office of the Governor, for a tenure of 5 years, noticed that Article 156(1) of the Constitution dispenses with the need to assign reasons or the need to give notice in the event of removal. But the need to act fairly and reasonably still cannot be dispensed with. Exception was carved out against acting in a manner which is arbitrary, capricious or unreasonable.
80. In face of the above enunciated principles, we are of the considered view that the concept of just cause and right of hearing, the features of common law, are not applicable to the elected offices where a person is so elected by majority in accordance with statutory rules. It would also have hardly any application to moving of a `no confidence motion' in so far as these are controlled by specific provisions and are not arbitrary or unreasonable. There is nothing in Rule 122-A of the M.P. Rules that requires adherence to these two concepts when a motion of no confidence is moved against a sitting Chairman/Vice-Chairman. Of course, it does not imply that the action can be arbitrary or capricious and absolutely contrary to the spirit of the Rule. There is no dispute in the facts of the present case that majority of the members had passed the `no confidence motion' in the 16th Meeting of the State Bar Council on 16th April, 2011.
81. We are not able to accept the view taken by the High Court of Delhi in the case of Bar Council of Delhi (supra) in saying that solely with the aid of General Clauses Act, the power to elect would deem to include power to remove by a motion of no confidence, particularly, with reference to the facts and circumstances of this case. The power to requisition a `no confidence motion' and pass the same, in terms of Rule 122-A of the M.P. Rules, is clear from the bare reading of the Rule, as relatable to loss of faith and confidence by the elected body in the elected office bearer. We have already discussed in some detail and concluded that Rule 122-A of the M.P. Rules is not ultra vires the provisions of the Advocates Act, including Section 15. When the law so permits, there is no right for that office bearer to stay in office after the passing of the `no confidence motion' and, in the facts and circumstances of the present case, it is clearly established that the appellants had lost the confidence of the majority of the elected members and thus the Resolution dated 16th April, 2011 cannot be faulted with.
82. Before concluding the judgment we would proceed to record our conclusions and answer the three questions posed at the outset of the judgment as follows:
Answers to:
Question No. 1 We hold that the provisions of Rules 121 and 122-A (in particular) of the M.P. Rules are not ultra vires of the provisions, including the provisions of Section 15, of the Advocates Act. These rules also do not suffer from the vice of excessive delegation.
Question No. 2 In view of our answer to Question No. 1, there is no need for us to specifically answer this question.
Question No. 3 In view of the language of Section 15(3) of the Advocates Act and the factual matrix afore-noticed by us, it is clear that the amended rules of the M.P. Rules had received the approval of the Bar Council of India, particularly Rule 122-A. The Rules would not be invalidated for want of issuance of any notification, as it is not the requirement in terms of Section 15(3) of the Advocates Act and in any case would be a curable irregularity at best.”
[emphasis supplied]
7.7 Thus, what emerges in the case of Posiya [supra] is as under:
In para 35, the Full Bench has taken note of the procedure for convening meeting and transacting the business of the committee and para 36 is about requirement of taking decision by vote of the majority of the members under sub-rule [6] of rule 35 with 1/3rd of the members of the Market Committee to form quorum and requirement of attending meeting and to express their views etc.
Para 39 is with regard to removal of a member under Section 13 of the APMC Act, which does not provide for moving no confidence motion for Chairman and Vice-Chairman. In para 40 provisions of Section 14 of the APMC Act and circumstances stated therein that an elected or nominated member shall cease to hold office, which included cessation of membership by the electorate of which he was elected and phrase “ceasing to hold the office for any reason” in sub-rule [2] of rule 33 was examined along with contingencies which may arise on death, resignation or loss of membership of the committee and casual vacancy for many considerable reasons like conviction and imprisonment of the holder of the elected office, by his physical or mental disability and other similar situations. One more contingency was included in the language of sub-rule [2] of Rule 33 using a wider expression like “ceasing to hold the office for any reason”. Thus, source of power for motion of no confidence was read and found in rule 33[2] of the Rules.
In para 47 a detailed consideration was made of the expression "ceasing to hold office for any reason" would be included "removal or recall of Chairman or Vice-Chairman by moving and passing of a no-confidence motion against him". This was found in the provisions of the APMC Act and Rules and to be inferred by implication and not as a common law right. Therefore, it is clear that power to move, consider and pass motion of no confidence is believed by equating it with exigency like death, resignation, conviction, physical or mental disability of Chairman / Vice-Chairman as the case may be.
The Full Bench not only referred and relied on, but formed interpretation and applicability of section 16 of the Bombay General Clauses Act about power to appoint include power to suspend or dismiss approving the decision of learned Single Judge in the case of Narmadaben [supra] in which learned Single Judge had accepted applicability of Section 16 of the Bombay General Clauses Act, but a similar contention while considering the provisions of Maharashtra Cooperative Societies Act was rejected by Division Bench of Bombay High Court in the case of Hindurao Balwant Patil and Anr. v. Krishnarao Parshuram Patil and Ors. [AIR 1982 Bom. 216].
Thus, section 16 of the Bombay General Clauses Act so interpreted and applied by learned Single Judge, full Bench in para 61 concluded that moving of a no confidence motion and passing the same by simple majority is permissible and not expressly prohibited by either provisions of APMC Act or Rules.
In paras 52 to 57, the Full Bench relied on rule 35 and procedure prescribed therein about convening meeting and special meeting to be called by members for passing a no confidence motion by simple majority.
In para 59 abstract principles of democratic institutions and discharge of duties by Chairman of APMC as required under various sections and that no confidence motion does not require any detailed reasoning and confidence in the elected holder of the office being sole of democracy and loss of confidence on the objective basis is not sufficient to move the motion, are discussed.
In para 60, the Full Bench again quoted the paragraphs of Narmadaben [supra] of learned Single Judge. In para 61 reliance is placed on Division Bench decision of Delhi High Court in the case of Bar Council of Delhi [supra] by learned Single Judge of this Court was again quoted and approved by stating in para 62 that Full Bench was taking a different view to some extent only from the observations of Delhi High Court in the case of Bar Council of Delhi [supra] to the extent of existence of right in the members of the elected body to remove its leader by no-confidence motion in accordance with the same procedure by which he is elected and in the absence of contrary provision in the law governing such elected body, such right has to be read into the statute and not as a common law right.
In para 64 a reference was made to the decision of Division Bench of Andhra Pradesh High Court (1975 ILR 242) and Full Bench decision of Punjab and Haryana High Court (AIR 1991 P&H 149), which arose from the provisions of Co- operative Societies Acts of the respective States whereby in absence of statutory provisions for moving and passing no confidence motion, it was held that it was not permissible for the Court to read provision of no-confidence motion in co- operative law. At the same time, the Full Bench in para 65 again taken recourse to section 16 of the General Clauses Act by holding that decisions of Nagpur Bench of Bombay High Court (1960 LLJ 99) and Division Bench decision of Bombay High Court (AIR 1982 Bom 216) referred to in earlier paragraphs are distinguishable on facts and the Full Bench again expressed respectful disagreement to the view of inapplicability of section 16 of the General Clauses Act to elective offices.
In para 67 the Full Bench concluded that the decision of Division Bench of Delhi High Court in the case of Bar Council of Delhi [supra] relating to no confidence motion against Chairman of Bar Council fully supported their view taken in the case of Posiya [supra] and the Full Bench further expressed its respectful agreement with the law laid down therein.
Therefore, the substratum of the decision of the Full Bench in the case of Posiya [supra] about proposition of law on motion of no confidence is essentially and materially based on applicability of section 16 of the General Clauses Act / Bombay General Clauses Act and decision of Bar Council of Delhi [supra] relied on by the learned Single Judge of this Court in case of Narmadaben [supra].
7.8 So far as decision in the case of Motibhai Chaudhary [supra] is concerned admittedly no provision exists under the Act, 1961 and/or rules and the reasoning, finding and conclusion of the above decisions with regard to existence of power to move no confidence motion and to convene the meeting to consider no confidence motion is solely based on interpretation and applicability of section 16 of the Bombay General Provisions Act, decision of Division Bench of Delhi High Court in the case of Delhi Bar Council [supra] and decision of Full Bench of this Court in the case of Posiya [supra] as per paras 21, 21 & 21A of the decision.
7.9 In the case of Ravi Yashwant Bhoir v. District Collector, Raigad [(2012)4 SCC 407], the Apex Court in paras 34 to 38 and 49 held as under:
34. In a democratic institution, like ours, the incumbent is entitled to hold the office for the term for which he has been elected unless his election is set aside by a prescribed procedure known to law or he is removed by the procedure established under law. The proceedings for removal must satisfy the requirement of natural justice and the decision must show that the authority has applied its mind to the allegations made and the explanation furnished by the elected office bearer sought to be removed.
35. The elected official is accountable to its electorate because he is being elected by a large number of voters. His removal has serious repercussions as he is removed from the post and declared disqualified to contest the elections for a further stipulated period, but it also takes away the right of the people of his constituency to be represented by him. Undoubtedly, the right to hold such a post is statutory and no person can claim any absolute or vested right to the post, but he cannot be removed without strictly adhering to the provisions provided by the legislature for his removal (Vide: Jyoti Basu & Ors. v. Debi Ghosal & Ors., AIR 1982 SC 983; Mohan Lal Tripathi v. District Magistrate Raj Barelly [AIR 1993 SC 2042] and Ram Beti etc. etc. v. District Panchayat Rajadhikari & Ors., AIR 1998 SC 1222).
36. In view of the above, the law on the issue stands crystallized to the effect that an elected member can be removed in exceptional circumstances giving strict adherence to the statutory provisions and holding the enquiry, meeting the requirement of principles of natural justice and giving an incumbent an opportunity to defend himself, for the reason that removal of an elected person casts stigma upon him and takes away his valuable statutory right. Not only the elected office bearer but his constituency/electoral college is also deprived of representation by the person of his choice.
37. A duly elected person is entitled to hold office for the term for which he has been elected and he can be removed only on a proved misconduct or any other procedure established under law like `No Confidence Motion' etc. The elected official is accountable to its electorate as he has been elected by a large number of voters and it would have serious repercussions when he is removed from the office and further declared disqualified to contest the election for a further stipulated period.
[emphasis supplied] Recording of reasons:
38. It is a settled proposition of law that even in administrative matters, the reasons should be recorded as it is incumbent upon the authorities to pass a speaking and reasoned order”.
49. Section 55 of the Act 1965 provides for removal of the President of the Council by No Confidence Motion. Sections 55A and 55B provide a mode of removal of duly elected President on proved misconduct or negligence etc., which read as under:
55A.- Removal of President and Vice-President by Government:-
Without prejudice to the provisions of Section 55-1A and 55, a President or a Vice-President may be removed from office by the State Government for misconduct in the discharge of his duties, or for neglect of or incapacity to perform, his duties or for being guilty of any disgraceful conduct, and the President or Vice-President so removed shall not be eligible for re-election or re-appointment as President or Vice-President as the case may be, during the remainder of the term of office of the Councillors:
Provided that, no such President or Vice- President shall be removed from office, unless he has been given a reasonable opportunity to furnish an explanation.
55B.- Disqualification for continuing as Councillor or becoming Councillor on removal as President or Vice- President :
Notwithstanding anything contained in Section 55A, if a Councillor or a person is found to be guilty of misconduct in the discharge of his official duties or being guilty of any disgraceful conduct while holding or while he was holding the office of the President or Vice-President, as the case may be, the State Government may,-
(a) disqualify such Councillor to continue as a Councillor for the remainder of his term of office as a Councillor and also for being elected as a Councillor, till the period of six years has elapsed from the order of such disqualification;
(b) Disqualify such person for being elected as a Councillor till the period of six years has elapsed from the order of such disqualification”.
[emphasis supplied] Thus, the above decision clearly mandates requirement of statutory provisions to remove a person duly elected with right to hold such a post is statutory subject to rider that he may not be removed without strictly adhering to the provisions provided by the Legislature for his removal or any other procedure established under law like no confidence motion. In the above decision also section 55 of the Act, 1965 provides for removal of President of the Council by no confidence motion.
7.10 In the case of Bhanumati [supra], the Apex Court in paras 45, 46, 47, 49 and 66 held as under:
“45. It is clear that the provision for no-confidence motion against the Chairperson was never repealed by any competent legislature as being inconsistent with any of the provisions of Part IX. On the other hand by subsequent statutory provisions the said provision of no- confidence has been confirmed with some ancillary changes but the essence of the no-confidence provision was continued. This Court is clearly of the opinion that the provision of no-confidence is not inconsistent with Part IX of the Constitution.
46. The provision of Article 243-N of the Constitution makes it clear that if the panchayat laws in force in a State to constitutional amendment, contain provisions which are inconsistent with Part IX, two consequences will follow:
(1) Those provisions will continue until amended or repealed by competent legislature or authority, and
(2) Those provisions will continue until one year from commencement of the Constitution amendment, if not repealed earlier.
47. Immediately after of the Constitution amendment by way of Part IX, came the Uttar Pradesh Panchayat Laws (Amendment) Act, 1994. This was enacted on 22-4-1994 to give effect to the provisions of Part IX of the Constitution. But the pre-existing provision of no-confidence was not repealed. Rather it was confirmed with minor changes in subsequent Amendment Acts of 1998 being U.P. Act 20 of 1998 and which was further amended in the impugned Amendment Act of 2007 being U.P. Act 44 of 2007.
49. Apart from the aforesaid reasons, the arguments by the appellants cannot be accepted in view of a very well-known constitutional doctrine, namely, the constitutional doctrine of silence. Michael Foley in his treaties on The Silence of Constitutions (Routledge, London and New York) has argued that in a Constitution “abeyance are valuable, therefore, not in spite of their obscurity but because of it. There are significant for the attitude and approaches to the Constitution that they evoke, rather than the content or substance of their structures”. (p.10) 66. Democracy demands accountability and transparency in the activities of the Chairperson especially in view of the important functions entrusted with the Chairperson in the running of Panchayati Raj institution. Such duties can be discharged by the Chairperson only if he/she enjoys the continuous confidence of the majority members in the panchayat. So any statutory provision to demonstrate that the Chairperson has lost the confidence of the majority is conducive to public interest and adds strength to such bodies of self-governance. Such a statutory provision cannot be called either unreasonable or ultra vires Part IX of the Constitution.”
[emphasis supplied]
7.11 In the case of Bhanumati [supra], no doubt the Apex Court has considered importance of provisions of no confidence motion in the institute like panchayat in the context of 73rd amendment to the Constitution of India vis-a-vis Utter Pradesh Kshetra Samitits and Zila Parishids Adhiniyam, 1961 and Utter Pradesh Panchayat Laws Amendment Act and erstwhile United Provinces Panchayat Raj Act, 1947 in the context of challenge by the appellants that the provision of no confidence is being not in Part-IX of the Constitution of India is contrary to the constitutional scheme of things and would run contrary to the avowed purposes of constitutional amendments which is meant to lend stability and dignity to Panchayati Institutions and curtailing the period from two years to one year before a no- confidence motion can be brought which further unsettles the running of the Panchayat and that no confidence motion can be carried on the basis of simple majority instead of two thirds majority dilutes the concept of stability, the Apex Court negated the above contention by applying the constitutional doctrine of silence and that the provision of no confidence motion did exist in earlier law which continued from time to time and ultimately institution of Panchayat survives even if no confidence motion is passed against a Chair Person and necessity of institution to run on democratic principles and all persons heading public bodies in democracy can continue provided such persons enjoy the confidence of the persons, who comprise such bodies. Therefore, as provisions of no confidence motion was incorporated in the Act, 1961 even prior to 73rd amendment and continued thereafter and similar provisions also exist in different states in India, argument that 2007 amendment Act lacked legislative competence was found merit-less.
7.12 That so far as decision of Afjal Imam v. State of Bihar [supra] is concerned, it was pertaining to interpretation of sections 27, 21(3), 23(3) and 25(4) of Bihar Municipal Act, 2007 which provided for constitution of empowered standing committee of municipality, executive power of municipality to be exercised by empowered standing committee, election of Chief Councillor and Deputy Chief Councillor. The empowered Standing committee was defined in Section 2(34) of the above Act. However, section 25 specifically provided for removal of Chief Councillor / Deputy Chief Councillor by various modes, including submitting resignation by writing and sub-section (4) of section 25 provided inbuilt mechanism of removal of Chief Councillor / Deputy Chief Councillor from office by a resolution carried by majority of the whole number of councillor holding office for the time being at a special meeting to be called for this purpose in the manner prescribed, upon a reasonable mode in writing by not less than 1/3rd of the total number councillors and procedure for the conduct of business in the subject meeting shall be subject as may be prescribed. The above subsection contain three provisos viz. that a no confidence motion shall not be brought against Chief Councillor / Deputy Chief Councillor within a period of 2 years of taking over the charge of the posts; second un-numbered proviso contained a provision that a no confidence motion shall not be brought again within one year of the first no confidence motion; and 3rd un-numbered proviso provided that no confidence motion shall not be brought within residual period of six months municipality.
Thus, a specific statutory provision does exist in the Bihar Municipal Act, 2007. Not only that but for the purpose of stability and smooth functioning of the Chief Councillor / Deputy Chief Councillor as the case may be it is provided that within a period of 2 years of taking over the charge of the post, as the case may be, no confidence motion is not to be brought against, after moving a no confidence motion again for a period of one year such no confidence motion is not to be brought and likewise within residual period of six months of municipality. The above provision about no confidence motion strengthens arguments and submissions of learned counsels for the petitioners about necessity of stability in the elected post of Chairman / President of such institution governed on the basis of democratic principles.
7.13 The decision in the case of Mohan Lal Tripathi v. Dist. Magistrate, Rae Bareily [(1992)4 SCC 80] is relied by the learned counsels for both the parties. In the above case, validity of `no confidence motion' passed under Section 87-A of the U.P. Municipalities Act by the Board against the appellant, who was elected by the electorate under Section 43(2) of the Act, as President of Rae Bareily City Municipal Board, was challenged as violative of democratic concept of removal or recall of an elected representative by a smaller and different body than one that elected him.
The Apex Court speaking through Hon'ble Mr. Justice R.M.Sahai [as His Lordship then was] in para 2 of the above judgment observed and noticed a feature of Democracy, which is concept, a political philosophy, an ideal practised by many nations culturally advanced and politically mature by resorting to governance by representatives of the people elected directly or indirectly. But electing representatives to govern is neither a `fundamental right' nor a `common law right' but a special right created by the statutes, or a `political right' or `privilege' and not a `natural', `absolute' or `vested right'. Right to remove an elected representative, too, must stem out of the statute as `in the absence of a constitutional restriction it is within the power of a legislature to enact a law for the recall of officers'. Thereafter, His Lordship further observed that “Therefore, the validity or otherwise of a no-confidence motion for removal of a President, would have to be examined on applicability of statutory provision and not on political philosophy”. The recall of an elected representative, therefore, so long it is in accordance with law cannot be assailed on abstract notions of democracy. Thus, requirement of statutory provisions and removal or recall of elected representative in accordance with law is the accepted proposition of law. In the above judgment, His Lordship further noticed about a significant change in earlier Act of 2 of 1926, which was brought about after a period of 10 years by introducing section 47A and conferring power of removal of Chairman, other than ex-officio, by the members of the Board by expressing a vote of no-confidence against him. Section 48, too, was amended and a Chairman who failed to resign after a vote of no-confidence was liable to be removed, by the State Government. Thus, the above provision continued with subsequent deletion with some modification and was thereafter reintroduced in the form of section 87A in U.P. Municipalities Act, 1916. Therefore, the manner of electing President has been changing from time to time and the method of removal by no confidence motion by the Board is remained unchanged in the above Act and considering the overall facts about intention of the Legislature not to opt for removal of President elected directly by the electorate itself, no infirmity was found in the above provision. Thus, the necessity of statutory provision for no confidence motion against the elected members / representatives was reiterated by considering other decision on the subject.
7.14 That in the case of Narmadaben [supra], learned Single Judge relying on the provisions of Section 16 of the General Provisions Act for the purpose of buttressing the conclusion that the power to appoint includes, power to remove, and therefore, it is held that the body which has power to elect its office-bearers by a simple majority has also the inherent or implied power to remove them by passing the motion of no-confidence by a simple majority, has remained at the center of reasoning in subsequent decisions of Posiya [supra] and Motibhai R. Chaudhary [supra]. All the above three decisions have further placed reliance on the Division Bench of Delhi High Court in the case of Delhi Bar Council [supra] and clarification of Full Bench in the case of Posiya [supra] that Full Bench had taken somewhat different view than that of Delhi Bar Council. That meaning of the word `somewhat' as per Oxford Dictionary, is `to some extent'. Thus, somewhat departure is made by Full Bench in case of Posiya [supra] but materially and essentially relied on section 16 of the Bombay General Clauses Act as interpreted by learned Single Judge in the case of Narmadaben [supra] and Delhi Bar Council [supra] and by reading source of power to move no confidence motion in section 33(2) of the APMC Rules. The reasonings and findings of the Full Bench in the case of Posiya [supra] directly fell into consideration before the Madhya Pradesh High Court in Writ Petition No.6372 of 2011 of Madhya Pradesh High Court which expressed disagreement with the ratio in the case of Posiya [supra]. The legality and validity of the above findings and reasonings, including that of para 28 of the judgment of the Division Bench of M.P. High Court reproduced in para 12 in the decision of Pratap Chandra Mehta [supra] was considered by the Apex Court extensively and in the context of specific contention about removal of elected office bearer by way of no confidence motion by placing reliance on the decision of Delhi High Court in the case of Delhi Bar Council [supra] about application of Section 16 of the General Clauses Act, 1897 that even in absence of any specific provision, the right of persons to elect a Chairman / Vice-Chairman would include the right to undo the same by moving no confidence motion, was not accepted in para 81 by the Apex Court. Para 81 of the said judgment reads as under:
“81. We are not able to accept the view taken by the High Court of Delhi (supra) in saying that solely with the aid of General Clauses Act, the power to elect would deem to include power to remove by a motion of no confidence, particularly, with reference to the facts and circumstances of this case. The power to requisition a `no confidence motion' and pass the same, in terms of Rule 122-A of the M.P. Rules, is clear from the bare reading of the Rule, as relatable to loss of faith and confidence by the elected body in the elected office bearer. We have already discussed in some detail and concluded that Rule 122-A of the M.P. Rules is not ultra vires the provisions of the Advocates Act, including Section 15. When the law so permits, there is no right for that office bearer to stay in office after the passing of the `no confidence motion' and, in the facts and circumstances of the present case, it is clearly established that the appellants had lost the confidence of the majority of the elected members and thus the Resolution dated 16th April, 2011 cannot be faulted with”.
[emphasis supplied] That solely with the aid of General Clauses Act, the power to elect would not to include power to remove by a motion of no confidence.
7.15 Thus, common thread of proposition of law based on Section 16 of the General Clauses Act runs through decisions of Delhi Bar Council [supra], Narmadaben [supra], Posiya [supra], Motibhai R. Chaudhary [supra], is held to be no more available as per the decision of Pratap Chandra Mehta [supra] and also as per the decision of Ravi Yashwant Bhoir [supra], which upheld the necessity of passing of no confidence motion in accordance with law and as per the statutory provisions. Even in the case of Bhanumati [supra] also the Apex Court relied on the decision of Mohan Lal Tripathi [supra] and keeping in mind the principles of democracy and doctrine of silence to be applied while interpreting constitutional provisions requirement of statutory provisions in the matter of no confidence motion, was not dispensed with.
7.16 In the case of C.N.Rudramurthy [supra] in the context of implied over-ruling , the Apex Court held as under:
“The High Court held that section 31 of the Act had been declared invalid in Padmanabha Rao v. State of Karnataka, and stated that it preferred to follow the reasoning of the Supreme Court in the Rattan Arya case, though it had been brought to the notice of the High Court that the Supreme Court had unambiguously stated in Shoba Surendar v. H.V. Rajan that the matter would be governed by the law regarding exemption from the operation of Rent Control Statutes as had been declared in D.C.Bhatia v. Union of India, a case under Section 3[c] of the Delhi Rent Control, Act, a provision parallel to Section 31 of the Karnataka Act. When the matter of Shobha Surendar was before the High Court it had relied on Padmanabha Rao. In Shobha Surendar the Supreme Court, however, did not specifically mention Padmanabha Rao. In D.C. Bhatia case, the Supreme Court had upheld the validity of section 3[c], which exempts from the operation of the Delhi Act premises the monthly rent of which exceeds Rs.3000”.
Thus, even if a particular case is not referred to and/or discussed by the Apex Court, but the proposition of law is explained and so held by the Apex Court will be binding to the High Court as envisaged under Article 141 of the Constitution of India.
7.17 That in the case of Rama Shanker Pandey v. U.P.Police/Station Officer, P.S.Kotwali [1995 AIHC 2926] the Allahabad High Court held that it is no doubt the duty of the Single Judge to follow the Supreme Court decision and not to follow the Full Bench decision of the High Court if there is inconsistency between the two since even the obiter of the Supreme Court decision is binding to the High Court.
7.18 On perusal of various acts in the State of Tamilnadu, Orissa and Bihar incorporating provisions with regard to no confidence motion and providing fixed tenure to the elected President / Chairman / Chief Councillor reveal that the legislature is aware and conscious about frequent and frivolous move of no confidence motion preferred for no reason and to curb such an evil the legislature has recognized fixed tenure of the elected office and person to provide stability and smooth functioning for the institutions. The above aspect was also noticed by the Apex Court in the case of Afjal Imam [supra] where 3 un-numbered provisos were attached to subsection (4) of section 25 of the Bihar Municipal Act, 2007. That for a period of 2 years from the date of election of the elected person, no motion of no confidence to be moved and having moved no confidence motion one year period was prescribed for bringing another motion for no confidence and bar to move such motion of no confidence six months before the tenure of municipality expires. Therefore, absence of statutory provisions pertaining to no confidence motion cannot be termed or interpreted to the disadvantage of elected person having statutory right to hold the post. That absence of such statutory provision on the contrary reveal awareness and knowledge of the legislature to provide fixed tenure to the elected representative of the body for which conscious decision is taken by the legislature. In the facts of this case, in Special Civil Application No.11351 of 2012, the tenure of the Chairman is provided of 3 years under bye- law 19 of the Federal Cooperative Societies Act and in Special Civil Application No.4087 of 2012, Rule 33 of APMC Rules, provide fixed tenure of 2 years to Chairman and Vice-Chairman of the Committee.
8. Thus, overall conspectus of facts and law as above, it is concluded as under:
That proposition of law that; [i] words ceasing to hold office for no reason including removal of elected President by motion of no confidence which is based on reading the provision of no confidence motion in the statute, though specifically not provided by the legislature and the proposition of law; and [ii] of the Full Bench in the case of Posiya [supra] as referred to in para 28 of M.P.High Court and so reproduced in para 12 of the decision of Pratap Chandra Mehta [supra] are not mutually exclusive and based on interpretation and application of section 16 of the Bombay General Clauses Act to which M.P.High Court expressed its disagreement. That legality and validity of disapproval of above propositions of law in case of Posiya [supra] by M.P.High Court fell into consideration before the Apex Court. In addition to the above, even specific contention raised in para 75 of the above decision about applicability and interpretation of section 16 of the General Clauses Act by learned counsels for the parties was answered specifically in para 81 by the Apex Court in which a clear disapproval is expressed to the decision of the Delhi Bar Council case [supra] that solely on the basis of above section 16 right to move of no confidence motion is not available in case of elective office. The above declaration of law is not mere passing reference or observations by the Apex Court, but disagreement to the proposition of law as above emerges and thus the above declaration of law is in conflict with propositions; [i] words ceasing to hold office for no reason including removal of elected President by motion of no confidence which is based on reading the provision of no confidence motion in the statute, though specifically not provided by the legislature and the proposition of law [ii] based on applicability of Section 16 of General Clauses Act of decision in the case of Posiya [supra] and that the legality and validity of the judgment of the M.P. High Court was upheld by the Apex Court and in such circumstances and as per the mandate of Article 141 of the Constitution of India, I am bound to follow the law so declared by the Apex Court. Therefore, I hereby make a departure from the decision of Posiya [supra] and again for the same reasons from the law laid down by the Division Bench in Motibhai R. Chaudhary [supra]. That requirement of provision in the statute for motion of no confidence and that a person elected for the post in a body governed by democratic principles get support from the decision of Ravi Yashwant Bhoir [supra].
8.1 That the genesis about interpretation and applicability of section 16 of General Clauses Act to elective office, in absence of specific statutory provision as surfaced in the reasonings of Delhi Bar Council [supra], in turn followed by learned Single Judge in Narmadaben [supra] and then essentially, materially and specifically relied on by Full Bench in Posiya [supra] and Division Bench in Motibhai Chaudhary [supra]. Thus, a common thread which pervades through the fabric and the substratum of Full Bench decision in Posiya [supra] and Motibhai Chaudhary [supra] is interpretation and applicability section 16 of the General Clauses Act, to which the Apex Court has expressed clear disapproval. Thus, the very basis, essence and substance of both the above decisions is lost and law declared on the basis of interpretation and applicability of section 16 of Bombay General Clauses Act now stand as impliedly over-ruled by the decision of Pratap Chandra Mehta [supra].
8.2 On specif requirement of provision under the statute in the matter of no confidence motion in case of elective representative of the body governed on the basis of democratic members is recognized by the decisions as discussed in earlier paragraphs Mohan Lal Tripathi [supra], Bhanumatiben [supra], Afjal Imam [supra], Pratap Chandra Mehta [supra] and Ravi Yashwant Bhoir.
8.3 That order / notice / communication impugned in each of these petitions is based on the law declared in the case of Posiya [supra] and Motibhai R. Chaudhary [supra], which now stand impliedly over-ruled by the Apex Court as held above. Therefore, issuance of such order / notice / communication impugned in each of these petitions is without authority of law and illegal and deserves to be quashed and set aside.
9. In view of the above discussion and considering the overall facts and circumstances of the case, both the petitions are allowed and communication dated 17.08.2012 issued by the respondent No.3 – Deputy Collector impugned in Special Civil Application No. 11351 of 2012 and order dated 27.03.2012 passed by the respondent No.1 and communication dated 28.03.2012 issued by the respondent No.3 impugned fin Special Civil Application No.4087 of 2012 are hereby quashed and set aside.
10. So far as Special Civil Application No. 11351 of 2012 is concerned, since the petitioner is holding the post in accordance with law, consequent to quashing and setting aside the impugned order, the result of no confidence motion, which is ordered to be kept in sealed cover, is insignificant and shall have no bearing on the subject matter, and therefore, it is hereby set aside. So far as Special Civil Application No.4087 of 2012 is concerned, status quo ante qua the post held by the petitioner prior to issuance of order dated 27.03.2012 passed by the respondent No.1 and communication dated 28.03.2012 issued by the respondent No.3 impugned in Special Civil Application No.4087 of 2012 is restored, which will be in consonance with the order dated 18.06.2012 passed in Letters Patent Appeal No.811 of 2012 in Special Civil Application No.4087 of 2012.
Rule issued in each of the petitions is made absolute to the aforesaid extent.
However, there shall be no order as to costs.
At this stage, learned counsel for the private respondents, requests this Court to stay this order for a period of 4 weeks. The said request of the learned counsel for the respondent is opposed by learned Senior Counsels for the petitioners. However, considering the facts and circumstances of the case, the effect and operation of this order shall remain stayed for a period of 4 weeks.
*pvv [Anant S. Dave, J.]