BABUBHAI MULJIBHAI PATEL v. NANDLAL KHODIDAS BAROT & Ors.

"The aforesaid ruling was read over in the meeting and in taking votes on the motion without the aforesaid point, no body showed hand in favour of the motion and ther,e were two votes against the motion, viz., (1) Shri B. M. Patel and (2) C. C. Barot. · As there were not legally sufficient number of votes, i.e., 17' votes in favour of the motion, the said no confidence motion is not passed and is declared to have been rejected. Dated 6-5-1973 time 6.15 p.m. On today's business of the meeting being over as above, the meeting is dissolved and having declared accordingly in the Board, the members dispersed. Date : 6-5-1973 Time: 6.15 p.m. &!/- Barot Chandulal Chhotalal, Vice-President, Kaloi Municipality. " As against the above version, according to respondent No. 1, 19 oouncillors were. present in that meeting. They included the appellant, Vice President Barot and two councillors Kantilal Chhaganlal Shah and Vithalbhai Somabhai Patel, to whom reference would be made resp6ndeilt hereafter.

What transpired in that meeting according· to No. 1 was given in the ncrte of councillor N.S. Parmar who was alleged to have presided over the meeting after the walk out of the appellant and the Vice President. The note of N. S. Parmar reads as under : "Today a Special General Meeting was called to discuss a motion of oo confidence against the President Shri B. M. Patel. As the no confidence mcition was to · be ·discussed against the President Shri B. M. Patel, the Vice President, Shri C. C. Barot had presided over the meeting. He (the· 76 SUPRf!Mll COVllT RF.PORTS (1975) 2 s.c.R. Vice-President) directed the Chief Officer Shri R. D. Barot as well as the Secretary Shri Thakkar not to write the pro ceedings of today's meeting in the proceeding book. 'I shall make a note in the rough sheet myself'. The member raised a. protest against this and the prc¢est having become severe and there being circumstar1ces enabling the meeting to pass a motion of no confidence as per the required legal two-thirds majority, by the Chairman, Shri C. C. BQfot, and the President Shri B. M. Patel have walked out of the Council Hall. · The other remaining members are present.

The chairman of tcr.lay's meeting Shri C. C. Barot has not taken on hand the motion of no confi.df1nce for dis cussion in today's meeting. He has also not taken votes c[ the members as per law on the motion. There being a posi tion of the motion of no confidence being carried by the required legal majority, I propose the name of Shri Narayan bhai Sadabhai Parmar to preside over the meeting and to go ahead with the business of the meeting, Proposed by Girish M. Bhatt Seconded by Shah Rameshchandra Ramanlal. The above motion being supported by unanimously 17 members. I preside over today's meeting and take on hand the business cl the agenda. Sd. N .. S. PARMAR, Presiding Authority, KALOL MUNICIPALITY." Later on May 6, 1973 Vice President Barot sent a telegram to Collector giving his version of the meeting. Report was also sent on the sanie day, i.e. May 6, 1973 by R. D. Barot, Chief Officer Kalol Municipality to the <'...ollector stating that a rescdution had been passed against the appellant' as President of the municipality.

It was stated that a vacancy in the office of the President of the municipality had arisen and election to that office be held. The appellant as the President of Kaloi Municipality convened a meeting of the municipality for May 18, 1973. A day before that co May 17, 1973 respondent No. 1 filed the present petition under article 226 o'f the Constitution in the Gujarat High Court praying for the issue of a writ of quo warranto fot ousting the appellant from the· office of the President of the Kalo! Municipality and for declaring that the said office had fallen vacant in view of the motion of no confidence having been passed on May 6, 1973. P:rayer was alsc made that the appel lant be directed not to preside over the meeting fixed for May 18, 1973. A B c D E F G H ,•' A B c D B. M. PATEL 1'· N. K. BAROT (Khanna, I.) 7 7 · Durin$ the pcndency of the petition before the High Court, Collectot. of Mebsana to whom confilcting versions c:« the proceedlnga of tho meeting of May 6, 1973 Jiad been sent held an Inquiry and, as per order dated Juno 9, 1973, came to the conclusion that Councillor Vithalbhai Somabhai Patel was nci present in the mooting held on May 6, 1973.

Reliance iD this ·connection was placed upon the aflida. vit filed by Patel that he was not present iD that meeting. The Collec· tor also took into account the fact that the signatures of the 17 council lors who were alleged tel be present in that meeting had not been ob- tained. It was further observed that after the meeting presided over by the Vice President had terminated, no meeting could be legally held under the chairmanship of N. S. Parmar. The concluding part of the order of the Collector reads as under : . . "In view of what is discussed above I come tci the con- clusion that the alleged no confidence motion against President Shri B. M. Patel has not been validly passed. The very validity of the meeting held under the chairmanship of Shri N. S. Parmar is doubtful and it is beyond doubt that Shri v. S. Patel did not attend and vote fctr no confidence ·motion and thus the alleged, motion was not supported and . voted by·more than 2/3rd of the total number of councillors of Kalcl Municipality, the office of the President has not, therefore, fallen vacant and hence no action requires to be taken on communication of Shri R. D. Barot.

" After the Collector had made the above order, the writ petition filed bv res1><>ndent No. 1 was amended so as. to include also a prayer for the quashing of the above order . E . The above writ petition was resisted by the appellant. During the pendency of the writ petition, a number of affidavits were filed on be· half of respondent No. 1 as well as on behalf of the appellant. The number of persctns who filed affidavits on behalf of the appellant has been stated to· be 27 and of those who 'did so on behalf of respondent F No. 1 to be 40. The affidavits filed on behalf of respondent No. l included those cif 16 councillors of Kaloi Municipality, while filed on behalf of the appellant included those of nine councillors Respondent No. 1 also filed the affidavit of Babubhai Dahyabblb Khamar, local correspondent of Gujarat Samachar, a daily of Ahmeda bad. Kbamar, accciding to respondent No. 1, was also present in that the High meeting.

On September 19, 1973 the learned Judges o'f G Court passed an interlocutory order for the production of six persons who had filed affidavits ollj behalf of respondent No. 1 and two persc.ns who had filed affidavits on behalf of the appellant for cross-examina tion. The material part of that order reads as Under : H "We have heard this petition which runs into abcut 700 pages. We have ooticed from the affidavits on record that there are sharp divisions among5t the councillors of the Kaloi Municipality, amongst the citizens of Kalol, amongst em~ees of the IC.Biol Municipality and even amongst the SUPREME COIJRl' REPORTS [1975] 2 s.c.R. press reporters. In order therefore that the situation may be cleared and more elucidation of the problem with which we are concerned may be had on record it is necessary that some of the principal deponents. who have made affidavits in this case on eithe.r side shc~lld be cross-examined by the (2) opposite party.

(1) Husseinmiya Hasammiya Sayed, Revabhai Lalabhai Parmar, (3) Babula! Somchand Shah, ( 4) Shantiben Ramchandra Barot, ( 5) Kantilal Cbhaganlal Shah and (6) Babubhai Dahyabhai Khamar have made affi davits in favour of the petitioner. The first five persons are the councillors of the Kaloi Municipality who, according to the petiticl!ler, were present at the meeting of the Municipality held on 6th May 1973 when motion of the Municipality respondent No. 1 was moved. Ac against the Chairman cording to the petitioner, they had voted for the 110 confi. dence motion. Acccl!'ding to the respondent No. 1, they were absent and, therefore, they could not vote for 'the :oo confi. dence motion. five witnesses to cross-examinaticl!l by the respondent No. 1. The sixth person Babubbai Dahyabhai Khamar, correspondent of 'Gujarat Samachar' daily of Abmedabad, claims in his affidavit to have entered tlie Council Hall of the Kaloi Municipality and to have watched the proceedings.

He is an· independent man. Affidavits have been made on behalf of the respmdent No. 1 to show that he was not allowed by the police to enter the Municipal Hall and If he had really watched the pro watch the proceedings. ceedings of the meeting of the Kaloi Municipality on 6th May 1973, his evidence would go a long way in helping us to decide the issue before us. It is, therefcl!'e, necessairy that he should be subjected to cross-examination by the respon d(:nt No. 1. We, therefore, direct that the petitioner shall produce the aforesaid six persons before this Court at 11 O'clc1:k on 20-9-1973 for cross-examination by the respon dent No. 1. It is, therefore, necessary to · subjec:t It is the case of the petitioner that Vithalbhai Somabhai Patel, a councillor of Kaloi Municipality, was present at the said meeting of the Kaloi Municipality and had voted for the no confi.dence motion. Vithalbhai Somabhai Patel denies that meetin,g al that fact and also denies his presence at together.

Chandulal Chhotalal Barot, Vice-Chairman of the Kalol Municipality had presided over the aforesaid meeting of the Kaloi Municipality and, according to him, nc1 confi.dence molion was not canied because two votes were cast ar, afust it and none had voted in its favour. He is a material wit the respondent ness. He has made affidavit in No. 1. Interests of justice require that Vithalbhai Scanabhai Patel and Chandulal Chhotalal Barot who have made aJfida vits in favour of the respondent No. 1 should be offered by favour of A B c D E F G H - B, M. PATEL v. N. K, BAROT (Khanna, 1.) 7 9 '. A the respondent No. 1 for cross-examination by the petiticlner. We, therefore, direct that the respondent No. 1 shall produce these witnesses at 11 O'clock on 20th September, 1973, for being cross-examined by the petitioner. " B c D E As mentioned earlier, the petition filed by respcmdent No. 1 was ulti mately accepted by the High Court.

The High Court in the course of its judgment first went into the question whether the. Collector had jurisdiction to hold the inquiry to find out whether the no confidence motion had been carried against the appellant and whether vacancy in the post of the President of the Kaloi Municipality had arisen. It was held that the Collector had no. jurisdiction tC4 make such inquiry and record the impugned order. Order dated June 9, 1973 was, therefore, held to be void and liable to be quashed. The High Court then went into the question whether the order of the CollectQI' was void on the ground that it had been made in violation of the principles of natural justice. The finding of the High Court in this respect was that there was not even a semblance of natural justice in the-inquiry ,which had been conducted-by the Collectclr and the same was vitiated by flagrant breach of all principles of natural justice as the interested persons had not been heard.

The High Court then considered the material which had been brought on the file, including the evidence of deponents who had been cross-examined, and came to the conclusim that 17 council lors had voted for the no confidence motion against the appellant in the meeting lleld on May 6, 1973. In the result the writ petition was accepted and. directions were given as mentioned above .. It may be mentioned that this Cdurt initially stayed the operation of the order of ilie High Court pending notice of motion. Subse quently, as per order dated November 19, 1973 the interim stay order was vacated. It was, however, made clear that fresh election to tlte office elf the President of the municipality would be held subject to the result of this appeal. A meeting was thereafter held and respondent No. 1 was elected President of the municipality. At present respon dent No. 1 is acting as the President of the municipality subject to the result o'f this appeal.

On behalf of the appellant his learned counsel, Mr. Anlin, has at the outset contended that as the dispute between the parties .this case involved questions C(f fact, the High Court should not have enter tained the writ petition filed by respondent No. 1 but should have referred the parties to a separate suit. This contention, in our opi nion, is not well founded. No plea was admittedly taken in the return filed on behalf elf the appellant in reply to the writ petition that res· . pondent No. 1 should be directed to seek his remedy by means of a In. the absence o'f such a suit because of disputed questions of fact. plea, the appellant, in our opinion, cannot be heard to say that the High Court shciuld have relegated respondent No. 1 to the remedy of a ~uit. Apart from that we find that the term of the appellant as· the President of the municipality would have eXPired in 1975. The trial of a suit, in the very nature of thinJ?S; would have taken considerable time.

Appeal and second appeal would have also been filed by the G H SUPREME COURT REPORTS [1975) 2 s.c.R. unsuccessful party in the case, Had respondent No. 1 been directed ·to seek his remedy by way of a suit, the relief secured by respc111dent No. 1 even if he had sucilceded in the suit would have been wholly ill.usory because 1'y the time respondent No. 1 would succeed in litigation, the term of the office of the President would have either al ready expired or be about tel expire. The appellant that event would have oontinued as the President of the municipality even though he had ceased to enjoy the confidence of the requisite number of councillors and they had passed a motion of net confidence against him. The entire concept of a democratic institution would thus have been set at naught. We agree with the observations of the High Court that the purpose underlying the petition wc1Uld have been completely defeated in case respondent No.

1 had been relegated to the ordinary remedy of a suit and that such remedy was neither adequate nor efficacious. It is not necessary for this case to express an opinion on the point as whether the varic1Us provisions of the Code of Civil Procedure apply to petitions under article iz6 of the ConstitutioJJ.. Section 141 of the Code, to which reference has been made, makes it clear that the pro v~ions of the Code in regard to suits shall be followed in all prcr:eed ings in any court of civil jurisdiction as far as it can be made appli cable. The words "as far as it can be made applicable" make it clear that, in applying the various provisions of the Code to prciceedings other than those of a suit, the court must take into account the nature of those proceedings and the relief sought. The ®ject of article 226 is to provide a quick and inexpensive remedy to aggrieved parties. Power has consequently been vested in the High Courts to any person or authority, including in appropriate cases any gcr:ern· ment, within the jurisdiction of the High Court, orders: or writs, . eluding writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari.

It is plain that if the prctcedure of a suit had also to be adhered to in the case of writ petitions, the entire purpose of having a quick and inexpensive remedy would be defeated. A writ petition under article 226, it needs to be emphasised, is essen tially different from a suit and it would be incorrect tc1 assimilate and incorporate the procedure of a suit into the proceeding!1 of a petition under article 226. The High Court is not deprived of its jurisdiction to entertain a petitic11 under article 226 merely because in considering the petitioner's right of relief, questions of fact may fall to be deter In a petition under article 226 the High Court has jurisdiction mined. to try issues both of fact and law. Exercise of the jurisdiction is no doubt discreticnary, but the discretion must be exercised on sound jud. icial principles. When the petition raises complex questions of fact, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view dispute should not appropriately be tried in a writ petiticn, the High Court may decline to try a petition (see Gunwant Kaw· v.

Bhatinda Municipality( 1). If, h:>wever, on consideration of the nature of controversy, the High Court decides, as in the present case, (1) A.LR. 1970 S. C. 802. B c D E F G H B. M. PATEL v. N. K. BAROT (Khanna, J.) 81 . ' A ~ould gc1 into a disputed question of-fact and the discretion exercised by the High Court appears to be sound and in conformity with judi· · clal principles, this Court would not interfere in appeal with the order madt by the High Court in this respect. 'C It bas next been argued by Mr, Amin that as an order was made B · by. the High Court permitting cross-examination of same of the persons who. had filed affid, avits in the proceedings before it, the High Court should not have restricted the right of cross-examination to only eight of the persqns mentioned in its order dated September 19, 1973 b.ut should have permitted cross-examination of all such deponents whom any party wanted to cross-examine.

We are unable to accede to this . contention. Normally writ petitions ai;e decided on the basis of affi.da- vits, In some cases, however, where it is not possible for the court to arrive at a definite conclusion on account c€ there being affidavits of either side containing allegations and counter-allegations, it would not only be desirable but in the interest of justiee the duty also of court to summon a deponent for cros!\-examination in order to arrive at the truth (see observations of Shelat J. in Barium Chemica!s Ltd. & Anr. v. The Campany Law Board & Ors. ( 1).' The fact D court permits cross-examination of some of the deponents in a writ petition does nett warrant the proposition that the court is bouud permit cross-examination of each and every one of the deponents whom a party wishes to cross-examine. In a case like the present where as many as 40 persons filed affidavits in support of. one party and 27 P,Crsons filed affidavits in suppcrt of the opposite party, the High Court, in our opinion, was well justified in the exercise of its .discretion selecting such persons whom it considered to be really import:mt and crucial for the purpose of cross-examination.

The effect of permi\ting , .eroos-examination was not that the High Court was divested o[ all dis cretion and control in the matter and was bound to call for cross examination each and every depi:>nent who was named by eith~r party. We have reproduced above the material part of ctrder dated Septem ber 19, 1973 and it would appear .therefrom the High Court selected for cross-examination five of those councillors who, according tct respondent No. 1, were present in the meeting wherein the motion of no confidence was alleged to have been passed but who, accord ing to the appellant were not present in that mee.tinl!· These five councillors had filed affidavits in support of the case of respondent No. 1. ·In addition tc1 these, five councillors, the High Court selected G Babubhai Dahyabhai Khamar, local correspondent of Guiarat Sama. char, who claitned to have been present in the Council Hall at · \ime of the above meeting and who sent a report about the proceed ings of that meeting tc1 the Gujarat Samachar.

From amongst deponents who had, filed affidavits in support oT the case of the appel· lant, the High Court selected for cross-examination Chandulal Chhota lal Barot, Vice President of the municipality who, according to · appellant, presided ewer that meeting as well as Councillor V. s. Patel, who clai.med that he was not present in the above meeting but who, E F H (1) (1966] SUllP. S. C.R. 311 on p. 3S3. L7-2St SUI!. C1/7S . 82 SUPRE)fE COURT REPORTS [1975] 2 s.c.R. according to respondent No. 1, was present in that meeting and had supported the motion of no oonfidence. Looking tei all the facts of the case, we are of the opinion that the discretion exercised by the High Court in selecting for cross-examination thcis~ deponents whom it oon· sidere<Mo be crucial was proper and judicious. No prejudice, in our opinion, was caused to any of the parties by the procedure adopted by the. High Court. We wciuld, therefore, hold that order dated Septem .ber 19, 1973 made by the High Court does not suffer from any infirmity.

Mr. Amin then submits that the deponep.ts· called for cross-exami nation should have been examined-in-chief and thereafter cross examined. The production of those witnesses simply for cross-exami In this respect we find that prayer nation was not warranted by law. which was made by the appellant in application dated September 17, 1973 was as under : "to order the opponent No. 1 to offer for cross.-examina· tion Kantilal Chhaganlal Shah, Lilavatiben Kantilal Shah, Mahmadbhai Badarbhai Chauhan and Naranbhai Sadabhai Parmar and Nusenmiya Hasanmiya Saiyad who have sworn affidavits in ·support of the petitioner or in the alternative to issue summons fo them to attend this Hon'ble ·Court for being cross-examined on behalf of the petitioner; " It would appear from the above that all that the appellant himself prayed in. his application was that the deponents mentioned by him should be offered for cross-examination and not that ·those witnesses should be examined-in-chief and thereafter cross-examined.

No grievance _could, theref()re, have been made l>Y the appellant if the deponents had not been exarilin, ed-in-ehief but had been simply cross examined. As things however are we find that when the deponents concerned were produced in court, they were examined-in-chief and thereafter there was cross-examination. In the course of their exami~ nation--UH:hief the deponents stated about their having sworn their affidavits and about the correctness of the contents of those affidavits. 1'.t might in _the circumstances have appeared to be unnecessary dupli c:ati<>o to ask those deponent~ to repeat what had been stated by them in their affidavits. We are also not impressed by the argument of Mr. Amin that as cross-examination of only 8 deponents had been permitted, the affida vits of others who were not cross-examined could n.ot be taken into consideration. The High Court ·permitted cross-examination of such. of _the deponents in respect of whom it came to the conclusion that their cross-examination was essential for arriving at the truth of the matter.

It· did not, however,. follow from that that the High Court was precluded from taking into consideration the affidavits of other deponents. Order permitting cross-examination of some of the de ponents did- not have the effect of obliterating from record the affida vits ef other deponents and we find nothing wrong in the approach A B c D E F G H B, M. PATEL v. N. K. BAROT (Khanna, J.) 8 3 .A of the High Court in relying upon the affidavi~ of deponents who were not cross-examined 11. on conspectus' of th~ entir~ circumstances of the case it found the averments in those affidavits to be true. B Mr. Amin has next challenged th~ correctness of the finding of the High Court that 17 councillors had supported the motion of no It is submitted that the version. of he appellant regarding confidence. what transpired in the meeting of May 6, 1973 is correct. The High Court, according to the learned counsel, was in error in relying upon In particular, Mr.

Amin submits the version of r~spondent No. 1. that V. S. Patel councillor . was not present in that me~ting. The presence of Councillor Kantilal Chhaganlal Shah in the meeting has In this respect we find that the High Court . also been questioned. c · has relied upon the affidavits of 16 councillors who in the course of their affidavits stated that 17 councillors including those councillors . themselves had voted in the meeting held on May 6, 1973 in support of the motion of no confidence. Out of those 16 councillors, 15 were admittedly in Kaloi on that day. They having signed the. motion of no confidence, there was, in the opinion of the High Court, no reason why they .should not be present in that meeting. As regards the presence of Councillor Kantilal Chhaganlal Shah, the High Court relied upon his affid_avit wherein he stated that he was present in the meeting and had voted in support of the motion of no confidence and found that his deposition had not been shaken in cross-examina tion.

Regarding Councillor V. S. Patel about whom the case of .res pondent No. 1 was that he had supported the motion of no confidence while that of the appellant was . that he was not present in the meeting, the High Court observed that the material on record pointed to the ·conclusion that he had supported the motion of no confidence. The High Court in this context relied upon the version given by Chi.ef Officer R.D. Barot, who was admittedly present in that meeting, as well as the statement of Babula! Dahyabhai Khamar, press correspon dent. After having heard Mr. Amin at considerable length, we find no sufficient ground to interfere with the appraisement of the deposi tions and .other material on record by the High Court. E D Mr. Amin, however, submits that Councillor V. S. Patel had been supporting the appellant in the past. Patel also filed on May 8, 1973 an affidavit in support of the appellant in the course of which he denied that he was present in the above meeting or that he had sup port~ the motion of no confidence.

It is urged that as V. S. Patel was a supporter of the appellant it is most unlikely that he would vote in favour of the motion of no confidence against the appellant. We are unable to accede to this submission. It may be a matter of· mournful reflection but all the same it is the acknowledgement of a stark reality that there has been in recent years in the case of some elected representatives so much erosion of moral values that they feel no compunction in repeatedly changing their loyalty and shifting their allegiance from one party leader to the other. Such representatives have a pliable conscience plainly because they succumb to all kinds of pressures and yield to all kinds of temptations. They brin~ a G H 84 SUPREM!l COURT REPORTS (1975J 2 s.c.R. ' touch of melodrama and the ~aleidoscopic nature o~ ~e local political sc:e,ne is quite often a rcflect1on of th~ sombre . a~~ivit1es of these ~­ p.rcsentatives.

Against the backdrop of such a:tiv1ties we find nothing surprising or unusual in the conduct of Councillor Patel. lt may be mentioned that 1respondent No. 1 has br~ught on record material as would indicate the circumstances under which V. S. ~~tel chose to support the motion of no confidence. Soon after the decision of the Gujarat High Court on April 2, 1973 that a motion of no confidence to succeed against the President should be supported by at least 17 councillors, the residents of ward No. 7 in Kalol held a meeting. V, S. Patel~ who along with two others had been ~le~ted to the municipality from that ward, was admittedly present m that meeting. Some of the persons present in that meeting, accordin.i:t. to Patel, asked him to work irn unison with the majority group which was led by respondent No. 1. It seems that it was as a result of the pressure which was brought 1to bear upon Patel in that meeting that he supported the motion of no confide.nee; After the meeting of May 6, 1973 Patel again seems to have changed his mind and joined the group of the appellant.

There is one important circumstance which tends to show that the •1ersion of respondent No. 1. with regard to what transpired in the above meeting is nearer the truth. In the earlier meeting which_ was held on November 1, 1972, a motion of no confidence agai, nst the appellant had been supported by 16 councillors. The Gujarat High Court by its judgment dated April 2, 1973, held that the motion Qf no confidence against the appellant could succeed only 'if )t was sup ported by at least 17 councillors. In view of that' decision, it is most unlikely that 16 councillors would have sent notice of motion of no confidence on April 21, 1973 unless they had been assured of the support of a seventeenth councillor. Otherwise it would have been a sheer exercise in futility for the 16 councillors to repeat the per formarnce of what had taken place in the meeting of November- 1, 1972. We therefore find nothing improbable in the stand taken on behalf of respondent No.

1 that V. S. Patel had pledged his support to the motion of no confidence and that he actually supported that motion in the meeting held on May 6. 1973. B c D E p Argument has also bee.n advanced that no signature of col!ncillors present were taken in. the meeting held on May 6, 1973. G I.t is stat~ that respondent No: 1 had been insisting on taking such signatures m the past and that m two or three meetings signatures of the co.uncillors were in fact obtained. The omission to take the signa- tur~s m the meeting of May 6, 1973, according to Mr, Amin, was delib~rate . so that the correct number of councillors present in the meetin~ might not be known. We are unable to accept this argument. Th~re 1s n? statutory p~ovision in the Gujarat Municipalities Act which requrres that the signatures of the members attending a meeting It is true: th.at respondent No. 1 had been insisting must be obtained. H B. M. PATEL v.

N. K. BAROT (Khanna, J.) 8 5 on obtaining signatures of the councillors present in a meeting but his plea . in this respect. was generally not accepted. · No signatures were admittedly taken in the meeting held on November 1, 1972 when 16 councillors supported the motion of no confidence against It is conceded by Mr. Amin that on two or three the appellant. occasions when signatures 0£ councillors attending the meeting were taken, this was done at the commencement of the meeting. As it was Vice President Barot, who initially pre~ided over .the meeting held on May 6, 1973, the responsibility to take the signatures at the commen- . cement of the meeting could at the best be that of Vice President Barot and not that of respondent No. 1. Respondent No. 1 in our opinion, cannot be penalised for the omission of Vice President Barot who admittedly belongs . to the group of the appellant. It has next been argued· on behalf of the appellant that a ground had been specified in.notice dated April 21, 1973 which was sent by 16 councillors for convening the meeting to consider the motion. of .no confidence.

The councillors in that meeting, according to the ~l\bmission, had to stick to that ground and could not depart from jt in passing the motion of no confidence. With a view to show that a different ground was set up in passing the motion of no confidence, our attentioq has been invited to the minutes of that meetinf? which when translated into English read as under : "Shri B. M. Patel, the President of the Kaloi Municipality has been put to a minority since 12th October 1972. Since th~n he has nofbeen allowing the Municipal Adininistration to run in keeping with the provisions of law. Moreover, in the special General Meeting of the 1st November, 1972, a motion of no confidence was passed against Shri B. N. Patel by 16 votes against 2 votes, but according to law a motion of no confidence can be passed by two-third votes of the total oomber i.e., 17 votes and at present 17 members dec lare their no confidence against the President on the present motion of no confidence against the President of the Kaloi Municipality.

" The above contention has been controverteq by respondent No. 1 It is no doubt true, submifll; who has argued the appeal persoJjally. respondent No. 1, that in the earlier part of the minutes there is a recital that the appellant had not been allowing the municipal adminis tration to function in accordl!llce with the provision~ of law, the con cluding part of the minutes shows .that "17 members declare their no confidence against the President on the present motion of no con fidence". Respondenti No. 1 accordingly submits that the ground which had been specified in the notice for the meeting was adhered to when passing the motion of no confidence. Although the stand taken on behalf of respondent No. 1 in this respect does not appear to be bereft Clf force, we need not express an opinion on this aspect of the matter because the contention advanced by the appellant can be r.epelled on another ground, namely, that there is no imperative requ1rement in the case .·of a motion of no confidence. that it should.

B c E F G H 86 SUPREME COURT REPORTS [1975] 2 s.c.R. It does npt, however, follow be passed on soine particular ground. There is nothing in the langu age of section 36 of the Gujarat ~unicipalities Act repr~uced earµer which makes it necessary to specify a ground when passmg a motion of lliO confidence against the President. It is no doubt true that accord.. ing to the form prescribed the ground for the motion of no confiden.ce has to be mentioned in the notice of intention to move a motion of no confidence. therefrom that the ground must also be specified when a motion of no confidence is actually passed agaimst 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 Cl!Se of a censure motion to set out the ground or charge on which it is based, a_ motion of no confidence nec:d not set out a gr()un(i or .charge.

A vote of censure presupposes that the persons censure~ have been guilty of some impropriety or lapse by act or omission. It may, therefore, b~come necessary to specify the impropriety or lapse while moving a vote of censure. No such consideration arises when a moti<Jn of no con· fidence is moved. Although a ground may be mentioned wheu passing a motion of no confidence, the existence of a ground is not a prerequisite of a motion of no c1Jnfidence. There is no legal bar to the passing of a motion of no confidence against an authority in the absence (If 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 en; joy the confidence of the requisite majority of members. We may in the above context refer to page 591 of Practice & 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 Govern ment for certain policies and actions, a motion of no-confi~ dence nieed not set out any grounds on which it is based .. Even when grounds arc mentioned in the notice and read out in the House, they do not form part of the no-confidence motion. " Mr. Amin has next assailed the finding of the High Court that the Collector had no jurisdiction to make an inquiry and pass order da~e~ June 9'. 1973. It is, in our view, not necessary to express an op1mon on this aspect of the matter as Mr. Amin has not during the course of argumenti; assailed the other finding of the High Court that the procedu~e ~dopted by. the Collector was violative of the principles In . view of this latter finding, the order of the of natural JUStice. Collector dated June 9,. 1973 was in any event liable to be quashed.

B. c ]I) F' G. ~r. Dhebar, who has appeared on behalf of the Collector has ~ubm1tt~d that the Collector was not actuated by any obliq11e ~otive m passmg order dated June 9. 1973. We agree with Mr. Dhebar that there is no cogent material on record to show that the Collector- H B. M. PATEL v. N. K. BAROT (Krishna Iyer, /,) 87 was actuated by any oblique motive when he passed that order. ' The fact that the procedure adopted by him was violatiye of th~ principles of natural justice might show an error of judgment, but from that it cannot be inferred that the Collector was motivated by ulterior consideration. There is, in our opinion, no force in ~e appeal which fails and is dismissed with costs. KRISHNA IYER, J.-The social lesions on the political tissues of our body politic are of as much pathological significance, in this case, as the legal issues and the weaknesses of the court system, thrown up by the mini-crisis in a small municipal council which forms the subject-matter of this case.

My learned brother Khanna, J. has discussed the points of law and questions of tact directly 'arising from the case and I am privileged to agree wholly with his observations, reasoning and result. Nevertheless, I append. this hesitant addendum, . turning the focus on certain aspects fundameri.t11l to our system which this appeal reveals. We were told a't the Bar that the case consumed eighteen long days of a Division Bench of the High Court (the Judges observe that counsel addressed them on the background of the case for about nine hours) and we see before us a few hundred pages of judgment, al though the facts are relatively few, .being confined to the passage of a non-confidence motion, with the requisite majority, and . limited ·to a few sections of the relevant municipal statute. This systemic prolixity highlights the need, in this country, where litigation is notoriously dilatory and the docket backlog in courts explosive, for developing better business management methods in the forensic area, more modern court methodology and streamli~ing of procedure, lest the people should get disenchanted with that noble institution, the Judicature, whose ~redibility is the corner-ston.e ef the rule of law and of organised government.

I . ,. Indeed, it is trite law that disputed questions of fact are not '1sually decided under Art. 226, but it is a common phenomed that litiga- tion spiralling up to the. highest ~ourt from below gets stalled so much that victor and vanquished are stultified the end. The present ca5e is allJ instance in point of the unhealthy but jmblamable B ·C D E F G H 88 SUPREME COURT REPORTS (1975) 2 s.c.R. tendency of parties to rush directly to the High Court for speedy re dress where the normal remedy is a suit in ~ lower civil court. The learned Judges note, that having regard to the controversy and quantum of evidence, the petitioner (the respondent before us) should have been relegated to a suit, but desist from that course on the express ground that the trial of the suit would consume considel'I< able time and "then there will be an appeal to the District Court against the dedsion of the civil court.

The appeal to the District Court will be followed by a secopd appeal to the High Court. The trial of the suit and tbe appeals to the District Court and the High Court wiJI certainly take a very long time''. Cynically, the High CourJ adds : "The courts of law, while upholding the rule of law, cannot defeat it by the procrastination of litigations". I agree that, in the present case, had the aggrieved party been driven to the hierarchy of courts, he would haw Jost, not on the merits, ,but by the sands of time running out before ultimate victory was in sight. Tim~ and tide do not wait for the tardy course of Indian justice and, if the appellant had really forfeited the confidence of the councillors (as we have h-eld), he should not be allowed to cling on to the President's office in the confidence that our slow-motion Court system would take a few years for processing final legal justice, hopeftilly helping him through his unmerited full t1:rm.

The High Court has obserNd about this aspect of the case : "The anti-democratic situation in a· democratic institution will, under these circumstances, be fostered and perp~tuated by litigations in courts. " These words of robed experience are a relkction on the mechanics and dynamics of our forensic system and suggest radical, not peripheral, technological reforms and scientific re-organisation of court-management. Largely this is the responsibi lity of the legislature and partly of the courts. Counsel for the app.~llan! expressed shock about reliance on affi davits by the High Court without the affiants being tested by cross cxamination. Reasons for this course have been adduced by the High Court and we have found no legal flaw therein. On the contrary, I wish to emphasise that it adds enormously to inconvenience, expense and delay to insist on oral evidence for proof of every little relevant viva yoce fact in judicial proceedings by suit or writ Faith examination ~ted hy severe cross-examination has sometimes been reduced to a legal superstitution.

While screening the veracity of glib versions on vital matters of controversy by telling cross-examination in court is necessary, many facts, either formal, non-controversial or well- A B' c D E F G H B. M. PATEL v. N. K. BAROT (Krishna Tyer, J.) 89 established otherwise, may well be proved by affidavit evidence. Breaking tradition and . introducing the system of affidavits, verified statements and certificates in nmny areas of judicial enquiry, leaving a discretion to the court to call. ihe author into court-is an experi ment well worth making, by reform of our law of evid·~nce .and proce dure as is being attempted in other countries. Written hearsalY has ceased to be anathema in Anglo-American or Socialist countries and in our country of distance, pov·~rty and delay, processual changes in this direction may lessen cost and add speed. Not only is the griev ance of the appellant on this score chimerical, the length of time taken in this case b.efor·~ the High Court is sufficient to warrant my observa tions for serious legislative consideration.

B c The learned Judges of the High Court have frankly stated thnt they have, inter alia, relied on 'statem~nts made before-- the police It is surprising that a: (vide p. 99 of Vol. III of the appeai record). D. · court should, in a civil case,· rely upon statements made be£Qre the police. It is not m~rely irrelevant, but throws up suspicions becaus~ the police had no business to record any statement as the High Court itself has, in another place, pointed out. The. learned Judges, for instance, have stated : "Though there was no complaint or .informa tion at that time either from respondent No. 1 or from any member 'have happened of his group about what respondent No. 1 alleges to on May 5, 1973, the police had taken interest in th~ matter and started an enquiry on their own. " Some inscrutable purpose has aRimated the police officers to investigate into what was aftogether beyond their pale. If such unwarranted p9lice intrusions into municipal doings were left uncriticised, the peril ·to the citizeq and to public ins.titutions is obvious.

It strikes me that the State Government will enquire into how such officious police interference .occurred and whether there was any sinister savour about it. F E G H Our elected local bodies are expected to· be self-governing unit (Art. 40 of the Constitution). If these grass-roots institutions pervert themsdves, small, wonder that Power iit higher levels, betral}'s popular trust. In the present case, certain incontrovertible facts need mention to appreciate my apprehensions about this tiny municipal administra tion having become a play thing of factious politics with under-currents of p:rsonal conflicts and overtones of economic interes~s. The Kaloi Municipality is a small town and the wheels of its politics are alleged to be linked with the economics of an industrial I / 90 SUPREME COllRT REPORtS [1975] 2 s.c.a. , unit-the Navjivan MiJ!s. While rival versions are asserted before us (neither, if true, being complimentary), it is pertinent that, out of a strength of 25 one of the councillors is a peon of the Mill, three of them other employees and II fifth, connected with it.

Both sides allege, although with co11flicting · projections, that between the Presidential election. in 1970 and the toppling tremors within two years, the estrange ment betw1:en the Mill management and the appellant had ~eveloped. While the Mill group voted. with the appellant to elect him Preside11t, they swung to oust him from office in May 1972. Without examining the veracity of either party's version, one may express the hunch that the economic interesis of that industry must have had some sort of influence over the working of the Kaloi Council. From the inception, the appellant and the l st respondent, pave been fighting for powf:r end, in 'the first round, the former won, on November 1, 1970. Nevertheless, some ·councillors appear to have concentrated on power-grab and, as part of this political circus, created confusion at n1un'icipal meetings. It is equally clear, from the judg· ment of the High' Court "that in respect of quite a good number of meetings of the municipality held since October 12, 1972 different sets of minutes have been maintained ~y respondent no.

1 on tlie one hand and by the petitioner's group, on the other hand". The Court has further stated that the appellant, apprehensive of his eroding majority had ruled out many motions. "He has converted ( rul·~·outs) into an instrument to negative the ~ of the majority and to cajole them into submitting to him. We are constrained to say that there cannot be an ugnier, more distasteful, more disagreeable and more distorted form of democracy than one we have seen on evidence ·in the ctvic affairs of Kaloi ... • The town has been helplessly witness ing unseemly· duels amongst the city fathers which have brought ·au progress and normal administration to a standstill. It also appears from tb~ record of the case that no meeting of the municipality could be held except under police protection. " A B c D E F' The fluctuating fortunes and the fluid loyalties emerging from the G Th·~ learned Judges of the diary of events makes distiurbing reading.

High Court notice that while the petitioner-appellant defeated ·respon- dent no. 1 on Novemb1~r 1, 1970 that event sparked off, not collective functioning for the common good, but combats f9r group cornering "On December 10, 1970 Kaloi Municipality adopted of positions. a motion for disqualifying the petitioner (respondent no. 1 here) from H the councillorship and passed it". However, "on June 1972, a resoLu- tion was passed biy 23 councillors of Kaloi Municipality voting. against B. M. fATEL v. N. K. BAROT (Krishna Iyer,/.) 91 A B c the petitioner (1st respondent herein) being disqualified by the State Government". We have it further from the judgment of the court below tha.t "on October 12, 1972 respondent no. 1 (appellant before us) admittedly lost his majority. 011 December 4, 1972 a resolution· came up for consideration before the Municipality to reduce. the term of respondent No. 1 (appellant herein), as President of the Munici pality, from 5 years to 2 years.

" The chaos in that tiny cosmos is self-evident. Presumably some citizens were exasperated at these happenings and "on February 18 a public meeting was held in the Kalol Town Hall". A leaflet issued in connection with that meeting mentions that "a tug-of-war has been going on in the Kalol Municipa lity between two groups anJ that the meeting of the citizens was called for the purpose of considering the situation arising out of it. " From the materials on record, it is legitimate to draw the inference that the citizens' meeting gave a mandate to some councillors to act with the majority, in the interests of civic welfare. We have one more fact of grave import. An earlier no-confidence motion passed by 16 councillors was held by the High Oourt to be numerically deficient by one, to make up the 2/3rds majoritiy. And at the second no-confidence· E motion, as we have already held, one who otherwise had supported: the· appellant, swit~hed loyalties.

These are distressing testimony to• pollution in public life. D F G Kaloi is not alone nor is the politics of jockeying a local syndrome. If the municipal microcosm has put self above service, wearing the· mask of public office, the national macrocosm will eventually magnify the vice; and once popular mistrust of d·~mocracy spreads, voices in the whispering gallery will be heard "Mischief. thou afr afoot, take what course thou wilt. " If this small municipality needs .policemen to hold its meetings, periodically exercise itself in the fine art of defection and false minutes perhaps allows the interests of a Mill to sway its affairs and compels the holding of public meetings to com mand its elected r·epresentatives to behave themselves, political demo cracy is moving. towards the evening of long shadows. Laws and H Courts are not the remedy for this malady, but better men and basic "Remember," said John Adams1 It soon wastes, exhausts and: mortality when ballots are sought.

"remember, democraqy never lasts long. SUPREME COURT REPORTS [1975] 2 s.c.R. murders itself. There never was a democracy that did. not commit socio-legally suicide. " ( 1) The sympathcma:ic. are dismissing appeal we P.B~R. A ppea/ dismissed. (I) Quoted by Hidayatullah, J. (as he then was) in "Democracy in India and the Judicial Procc~ss-Lajpatrai Memorial Lecture Series-1965 Asia Publishing House Jl, 16.