Heard Learned Senior Counsel Mr. Mihir Thakore with Mr. Vyas for the appellant, original petitioner.
This appeal is directed against the interim order passed by Learned Single Judge dated 11.05.2012 whereby, interim relief, as prayed for by the petitioner is refused.
The Appellant, the Chairman of APMC Deodar, faced no confidence motion from the members of the committee, which has total 17 members. Number of interim orders were passed by this Court, some of which are referred to by Learned Single Judge in the impugned order. Para:5 of the impugned order refers to the order dated 12.04.2012 where from it transpires that the ballot box was opened in this Court, in presence of the representatives of all parties, including the Appellant. 10 out of total 17 votes were in favour of the 'no confidence motion' i.e. against the present Appellant. In this fact situation, while refusing interim relief in favour of the present Appellant, Learned Single Judge recorded his satisfaction in Para - 11.2 by observing thus:
"11.2 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. ..."
Learned Senior Counsel for the appellant has contended that legally, 'no confidence motion' could not have been moved at all. In this regard, he has relied on the judgement of the Hon'ble Supreme Court of India in case of Pratap Chandra Mehta V/s State Bar Council of Madhya Pradesh and Ors, reported in (2011) 9 SCC 573. He has drawn attention of the Court to Para:12 of the judgement wherein reference can be found to the decision of the Full Bench of this Court in case of Nandlal Bavanjibhai Posiya V/s Director of Agriculture Marketing & Rural Finance reported in 2002(1) GLH
659. It is contended that the view taken by the Full Bench of this Court in case of Nandlal (supra), that the right to remove is inherent in right to elect, which is referred to in the impugned order by Learned Single Judge, stands impliedly over ruled. It is submitted that the decision of full bench of this court, in para 67, refers to the judgement of Delhi High Court (AIR 1975 Delhi 200) by saying that the view taken by the full bench gets support from the view expressed by the Delhi High Court. Reliance on both these decisions i.e. of Delhi High Court and Gujarat High Court, was placed before the M.P.High Court in case of Pratap Chandra Mehta, which is referred to in para 27 and 28 respectively by the M.P.High Court in its judgement, as quoted in para-12 of the judgement of the Supreme Court in case of Pratap Chandra Mehta (Supra). M.P.High Court expressed its inability to subscribe to the view expressed in those decisions, with specific reference to para 46 and 66 of the full bench decision of our court, which lays down the preposition of law. M.P.High Court took the different view in the case before it, which was under challenge before the Apex Court and that view is upheld by the Apex Court in case of Pratap Chandra Mehta (Supra) and therefore according to learned counsel for the appellant, the view taken by the Full Bench of this Court in case of Nandlal (supra), that the right to remove is inherent in right to elect, stands impliedly over ruled.
Learned Single Judge, after referring to the judgements cited before him, including the judgements which are relied in support of this appeal, came to the conclusion that the matter would require consideration qua those points. The issues raised in the petition, including, as to whether, the right to remove is inherent in right to elect, and whether 'no confidence motion' could be validly moved at all, are large open before Learned Single Judge, and therefore no opinion needs to be expressed in this appeal and the same shall be decided in accordance with the law, in the pending petition.
Learned Senior Counsel further contended that when prima facie case is made out before Learned Single Judge, in view of the judgement of the Hon'ble Supreme Court of India in case of Deoraj V/s State of Maharashtra AIR 2004 SC 1975, interim relief, as prayed for, ought to have been granted.
As noted above, after taking into consideration the totality of the facts, including the fact that the ballot box was opened in this Court and out of total 17 members, 10 votes were in favour of no confidence motion i.e. against the present Appellant, Learned Single Judge thought it fit not to exercise the discretion to grant interim relief. In my view, refusal to exercise the discretion by the learned Single Judge, in this fact situation, does not call for any interference in this appeal.
No relief can be granted in favour of the appellant, in this appeal.
Sitting as Single Judge in Vacation, I can not pass any final order in this appeal. Registry is directed to list this appeal before appropriate bench, as per roster on 11.06.2012, for further consideration and / or order.
[Paresh Upadhyay J.] *kazi Top