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Chhanalal A. Patel, President, District Local Board, Mehsana Vs. State of Gujarat - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Appln. No. 282 of 1960
Judge
Reported inAIR1961Guj27; (1960)GLR260
ActsBombay Local Boards Act, 1923 - Sections 26(1); Constitution of India - Article 226
AppellantChhanalal A. Patel, President, District Local Board, Mehsana
RespondentState of Gujarat
Appellant Advocate M.P. Amin,; P.M. Amin,; M.H. Chhatrapati and;
Respondent Advocate Adv.-General and;Asst. Govt. Pleader
DispositionPetition allowed
Cases ReferredBengal Immunity Co. v. State of Bihar
Excerpt:
.....show cause notice - index showing that misconduct which section 26 speaks of is misconduct during term of office and not at any point or period of time beyond and before that term of office - in that view of mater show cause notice beyond competence of state government - writ of prohibition issued. - - by this we do not mean that it should be stintingly or narrowly understood but that we must exclude from its ambit and operation all that is not clearly covered by the words used. the interesting question whether a writ of prohibition can be claimed by a party as of right came up for consideration before me in the case of s. (iv) where, however, there is patent lick of jurisdiction and the court is immediately satisfied that the inferior court or authority has exceeded its..........issued in circumstances to be presently stated. the petitioner is the president of the district local board, mehsana. he was also the president of a previously constituted local board. a district local board for mehsana was constituted of elected members in 1957. the petitioner was an elected member of that board and was elected its president 'and functioned as such from 12th july 1957 to 13th june 1958. there were changes in the boundaries of the district and the local board was dissolved by the state government on 13th june 1958. on 14th june 1958, the district local board for mehsana was reconstituted and the petitioner was one of the nominated members of that board. at a meeting convened for the purpose, the petitioner was elected president of the reconstituted local board on 14th.....
Judgment:

Desai, C. J.

1. This is a petition for a writ of prohibition directing the opponent, the State Government, not to proceed with an inquiry contemplated by a show cause notice dated 4th April 1960 issued In circumstances to be presently stated. The petitioner is the President of the District Local Board, Mehsana. He was also the President of a previously constituted Local Board. A District Local Board for Mehsana was constituted of elected members in 1957. The petitioner was an elected member of that Board and was elected its President 'and functioned as such from 12th July 1957 to 13th June 1958. There were changes in the boundaries of the district and the Local Board was dissolved by the State Government on 13th June 1958. On 14th June 1958, the District Local Board for Mehsana was reconstituted and the petitioner was one of the nominated members of that Board. At a meeting convened for the purpose, the petitioner was elected President of the reconstituted Local Board on 14th June 1958. That office of the petitioner as President was for a period of three years from 14th June 1958. On 4th April 1960, the State Government issued a notice on the petitioner calling upon him to show cause why he should not be removed from his office under Section 26(1) of the District Local Boards Act, 1923. A number of allegations are made against the petitioner in that! show cause notice. It is not necessary to go into the details of those allegations and it will suffice to observe that the allegations are not of any serious nature. It is of consequence however, to note that all the allegations in that show cause notice relate to a period prior to 14th June 1958 when the District Local Board was reconstituted and the petitioner was elected its President. They relate to the period of the previously constituted District Local Board. This is common ground. Immediately after the service of the show cause notice on him, the petitioner presented this petition seeking a writ of prohibition directing the opponent not to proceed with the inquiry contemplated by the show cause notice.

2. One important question that arises for our determination' lies in a narrow compass and relates to the interpretation of Section 26 of the Bombay Local Boards Act to be referred to by us hereafter as 'the Act'. The other question is one of greater importance and relates to the position in law in the matter of issuance of a writ of prohibition. In a writ of prohibition where there is patent lack of jurisdiction and it appears that a Tribunal or authority is usurping jurisdiction, would a writ of prohibition issue as a matter of right or a matter of course or would it be a matter of discretion with the Court?

3. It has been argued before us by Mr. M. P. Amin, learned counsel for the petitioner, that the how cause notice could not be issued under Section 26 because the alleged misconduct did not take place during the term of office of the petitioner as the President of the reconstituted District Local Board. The argument has proceeded that the show cause notice is wholly outside the purview of Section 26 and issued by the State Government without any authority and jurisdiction. In order to appreciate this argument it will be convenient to set out here the relevant and material part of that Section:

'28. (1) The term of office of every president Or vice-president shall cease on the expiry of his term of office as a member of the local board over which he presides: provided that he shall be removable from office, as such president or vice-president, by the State Government for misconduct, or neglect of or incapacity to perform his duty and a president or vice-president so removed shall not be eligible for re-election or appointment during the remainder of the term of office of local board'.

The argument of Mr. Amin has been that on a plain reading of the section, the expression 'misconduct' must relate to misconduct which has taken place during the term of the office of the President and not on any prior date or earlier point of time, Mr. M. H. Chhatrapati, learned counsel for the petitioner, who supplemented the arguments of Mr. Amin, has carefully and fully argued before us this question of construction. Learned counsel has laid great stress on the initial words of sub-section (1) of Section 26 as also the words 'during the remainder of the term of office of the local board' with which the sub-section ends. He has leaned heavily on the elements of neglect and incapacity to perform duty and urged that the negligence or incapacity to perform duty must necessarily have arisen during the term of office and not at any point of time before that. This latter aspect relating to negligence and incapacity to perform duty has not been seriously challenged before us by the learned Advocate Gene-ral who appears for the State Government. The argument of Mr. Chhatrapati has proceeded that the expression 'misconduct' must relate to misconduct in the performance of his duty by the President. Misconduct, neglect or incapacity to perform duty should all be read in the same manner and must all relate to the same period of time and if they be so read, the necessary effect of doing so would be that misconduct which affords a ground for removal of the President of a local board must have taken placs during the term of his office.

4. Greatest emphasis has been laid on behalf of the petitioner on the expression 'term of office' which occurs at the outset of the section. It is said that the section is concerned with one term of office and nothing more. Some support is also sought to be derived from the marginal note to the section which speaks inter alia of 'Term of office of president and vice-president and their liability to be removed'. Our attention has also been drawn to Sections 9 and 31 of the Act. Since reference has been made in the course of arguments on either side to both these sections, it will be convenient to set out here the relevant and material part of Section 9 and the provisions of Section 31.

'9. (1) No person may he a member of a local board who :-

(c) (i) has been convicted by a Court in India of any offence and sentenced to transportation, or to imprisonment for not less than two years, unless a period of five years, or such less period as the State Government may allow in any particular case, has elapsed since his release; or

(iii) has been removed from office under Section 31 and five years have not elapsed from the date of the expiry of such removal'.

'31. The Slate Government may if it thinks fit on the recommendation of the local board, remove any member of such local board, elected or appointed under this Act, after giving him an opportunity of being heard and after such inquiry as the State Government deems necessary if such member has been guilty of misconduct in the discharge of his duties, or of any disgraceful conduct, or has become incapable of performing his duties as a member of the local board.'

Section 9 contains a number of rules relating to general disqualifications of members. A person suffering from any of those disqualifications cannot be elected as a member by the electorate. That section imposes total disqualifications whereas Section 20 when it speaks of misconduct speaks of conduct less reprehensible than that resulting in conviction of any offence and sentence of imprisonment as there stated and the section itself furnishes material which goes to show that the section is concerned with one term of office and no more. It is also urged that even if we take the view that the meaning of the expression 'misconduct' is not very clear, we must strictly construe it and 'against disqualification. It is also said that a reconstituted board is a new board for all purposes and there is no reason why the expression 'misconduct' in Section 26 should relate to misconduct on the part of a President during any earlier and previously constituted Local Board.

5. It has been argued on the other hand by the learned Advocate General that the expression, 'misconduct' must be interpreted to mean not only any misconduct of the President in the performance of his duty as President but such as renders him, unfit to be the President of the local Board, Reliance has been placed by counsel on a decision of the Court in England in Stock v. Central Midwives Board, (1915) 3 KB 756. The Court was there considering Section 3 of the Midwives Act, 1002, which conferred power on the Central Midwives Board to frame rules regulating their own proceedings and to remove from the roll the name of any midwife disobeying the rules, 'or for other misconduct'. At page 763 of the report Lord Reading C. J. observed :

'...........I only desire to say that in my view the misconduct dealt with by the section is not limited! to misconduct in the discharge of the duties of a midwife. If it is misconduct in the opinion of the Board which tends to unfit her for the discharge of the duties' of a midwife, then the Board has - the right to treat it as misconduct under the-statute and to visit it with the penalties which in their opinion it deserves.'

It is true that these observations though made in a different context and in interpreting a provision in the Midwives Act in England can be helpful, But| we on our part are of the view that in the present context it should make little difference whether we read the expression 'misconduct' in the sense suggested by Mr. Chhatrapati or in the sense which we are asked to attribute to the same by the learned Advocate General. 'In our judgment, as we, shall presently point out, for the purpose of the present) inquiry it is not so much the meaning and connotation of the expression 'misconduct' in the section that must matter as collocation, its setting and the association of words which follow upon it. Of that more hereafter.

6. It is next argued that there is no reason why tho word 'misconduct' should be read as misconduct during the term of the office of the President. That it is said would be incorporating words in the section which are not there. The argument has run that there is nothing in the section which introduces anything of the nature of limitation in point of time in the context of the act or acts of misconduct in respect of which action may be taken by the State Government against the President of a District Local Board.

7. The proviso to Section 26, it appears to us, could have been penned with greater clarity. But the obscurity that seems to result becomes considerably less so when we invoke the aid of some of the recognised canons of construction. We must look not only at the expression 'misconduct' but look at the context and collocation of it and the structure of the whole sentence which lays down the rule relating to removal of the President. We must make a consistent and harmonious enactment of the whole rule. We must also remember that we are interpreting a provision which brings about removal of a President from his office and is punitive in its effect and must, therefore, be strictly construed. By this we do not mean that it should be stintingly or narrowly understood but that we must exclude from its ambit and operation all that is not clearly covered by the words used. On the one hand there should be no deliberate weighing in favour of a construction which would validate a show cause notice issued under It nor on the other hand there should be attributed to the language used any constricted sense and operation. The coverage of it would, however, be confined to that which is clear and explicit and having regard also to the scheme of tho relevant! provisions and the object of the Legislature to be gathered from the same.

8.Misconduct is a term of wide and indefinite import. In Section 26 it is grouped with two other expressions neglect and incapacity to perform duties of a President and it is permissible to determine its meaning by a reference to the associated words provided such reading of it is not inconsistent with the general intent and ambit of the rule. It is to such cases that the maxim noscitur a sociis affords a guide and at times even a key to the ascertainment of the legislative intendment. Of course we do not intend to be understood to suggest that the character of the expression under consideration should be sub-merged by its association. I the legislative, intent is clear and) plain, the maxim must give way. I But when the import is doubtful, associated words can explain and limit the application of each other,

9. Considered In the light of these prefatory observations, it seems to us that the difficulty of construing this expression 'misconduct' in the context of its operation in point of time is more apparent than real. -The first part of the section relates to the term of office of every President or vice-president. The proviso which is more of the nature of an additional rule than a proviso is obviously intended to enact that even though the term of office of a President continues till the expiry of his term of office, he may nevertheless be removed from his office as such President by the State Government for misconduct or neglect of duty or incapacity to perform his duty. There is greater reason, in our opinion, for confining the operation of the rule to acts of misconduct or neglect on his part during the term of his office than giving the rule a wider scope. We have already pointed out that as to negligence or incapacity to perform his duty, they should indubitably be during the term of office. Obviously the expression 'incapacity' whatever else it includes must include physical incapacity and it is inconceivable that it can be suggested that physical incapacity during the term of a previously constituted local board would invite the operation of this section and! die same considerations must apply to an act of negligence in the performance of his duty by a President. That being the position, it seems to us, that this is one of those cases where we must allow the maxim noscitur a sociis to help us in interpreting the section. There is all the more reason for preferring this construction when we look: at the words at the end of the section. The removal from office is to be confined in point of time only to the remainder of the term of office of the local board. The misconduct or neglect to perforn his duty or incapacity to perform his duty as a President are obviously regarded by the legislature as not serious matters for tho removal is to be only for a limited period of time.

10. Support is to be derived for the view we prefer to take on this question from Section 9 which we have already set out above. There are matters which are regarded by the legislature as resulting in general disqualification and they are all of a serious nature. This, in our opinion, is an index showing that the misconduct of which Section 26 speaks is misconduct during the term of office and not at any point or period of time beyond and before that term of office. In that view of the matter it must be held that the show cause notice was beyond the competence of the State Government.

11. The next step of the argument on behalf of the petitioner is that here is a case where a State Government has usurped jurisdiction and authority which it does not possess- and it is apparent that this is a case of total absence of jurisdiction. The argument has run that the absence of jurisdiction is apparent on the face of the show cause notice itself and being a case of patent lack of jurisdiction the petitioner is entitled to a writ of prohibition as of right and in any event as a matter of course. It has been argued on the other hand bv counsel for theopponents that the issuance of a writ of prohibition must always remain a matter of discretion with the Court. There are observations of the highest Tribunal where it is said that the issuance of any prerogative writ under Art 226 of the Constitution is discretionary with the Court.

The interesting question whether a writ of prohibition can be claimed by a party as of right came up for consideration before me in the case of S. C. Prashar v. Vasantsen, 58 Born LR 184: ((S) AIR 1956 Bom 530). In England it is not unusual to say that where there is total absence of jurisdiction apparent on the face of the proceedings a writ of prohibition would go as of right (see Farquharson v. Morgan, (1894) 1 QB 552). But as I pointed out in Prashar's case, 58 Bom LR 184 : ((S) AIR 1956 Bom 530) it is in the historical background of the writ that in England it is said that in any such case prohibition is demandable of right. No such considerations need weigh with this Court in appreciating the broad principle that granting of all writs under Art. 228 of- the Constitution including the writ of prohibition is always discretionary though of course different considerations may prevail in cases of different writs. The principles that can be gleaned from an exhaustive review of citations made at the bar in that case were summarised by me in the form of certain propositions :

'The following propositions though not exhaustive of the subject are sufficient for the purposes of this case and I venture to think that the true measure and scope of the exercise of this jurisdiction, and the discretion of this Court to issue a writ of prohibition under our law, in respect of proceedings in excess of jurisdiction, may be thus stated :

(i) The High Court has always the power and the discretion to grant or refuse to grant this writ which though it is primarily intended for enforcement of fundamental rights must 'also issue where necessity demands immediate and decisive interposition.

(ii) The considerations that arise when this writ is asked for on the ground that any inferior Court or person or body of persons having legal authority is committing or has committed an error of law apparent on the face of its proceedings and those that arise in a case of excess or usurpation of jurisdiction by any such Court or authority must necessarily be differentiated for in the former case there is an erroneous exercise of jurisdiction which exists while in the latter case there is no jurisdiction at all.

(iii) Absence of jurisdiction may be patent that is apparent on the face of the proceedings or latent in the sense that it is not so apparent. Where! the defect is not apparent, the Court in its discretion may refuse the writ if the facts or circumstances attending the case show undue delay, insufficient materials, misconduct, laches or acquiescence on the part of the party applying for it or are such us would' render it unjust on the part of the Court to interpose.

(iv) Where, however, there is patent lick of jurisdiction and the Court is immediately satisfied that the inferior Court or authority has exceeded its jurisdiction, the Court will very readily interpose. The discretion to grant or refuse to grant the writ is of course there. But since discretion contemplates an exercise of arbitrium and not arbitrariness, the writ must go though not of right nor of course yet almost as a matter of course unless an irresistible case for withholding the writ is made out.'

I added:

'It is not my endeavour to formulate the irresistible grounds on which this writ may be withheld in a case of patent lack of jurisdiction. I desire to guard myself against the dangerous ambition of suggesting rules that should regulate this discretion of the Court or of trying to foresee everything. The use of the term 'discretion' in this connection though of course accurate is apt at times to be misconceived. The matter has to be decided with discretion and not at discretion.'

12. The argument on behalf of the State is that the petitioner will not be seriously prejudiced if the writ is withheld and, therefore, we should in the exercise of our discretion decline the issuance of the writ. This, in our opinion, would not be the correct approach to the matter. It being shown that there is patent absence of jurisdiction apparent on the face of the proceedings, we should in the exercise of our discretion grant relief by issuance of the writ unless there is some very strong case made out for withholding of the same. We are bound to act with discretion and! when it appears that there has been usurpation of jurisdiction, it is that discretion itself that requires that this Court should act and not refuse to act in the matter. My brother Bhag-wati points out to mo that in the case of Bengal Immunity Co. v. State of Bihar, (S) AIR 1955 SC 661, Mr. Justice Venkatarama Ayyar made the following observations in the context of a writ of prohibition at page 726 :

'The existence of another remedy is a very material circumstance to be taken into account when the Court is called upon to issue a writ of 'certiorari', but wholly different considerations arise when the writ asked for is prohibition. Writ of prohibition is issued whenever a subordinate Court or Tribunal usurps jurisdiction which does not belong to it, and when that has been shown, the issue of the writ, though not of course, is of right and not discretionary .....,'

We on our part would not in the context of a writ the issuance of which is discretionary, venture to say that the issuance of the writ can be of right. In all humility, we would prefer to say that the issuance of the writ though not of right nor of course would almost be as a matter of course. In that view of the matter we see no reason why the writ of prohibition should be withheld in the instant case.

13. Then remains to be mentioned one more contention urged before us by Mr. Chhatrapati and the contention is that the show cause notice was issued mala fide. The loose allegations of mala fide made in the petition have been denied in the affidavit made in opposition to the rule. In our opinion there is little substance in the allegations of mala fide and since we have already reached the conclusion which goes in favour of the petitioner, we do not think it necessary to discuss the present argument any further. It will suffice to say that in our judgment the case of mala fides has not been made out.

14. In the result the petition succeeds. A writ of prohibition will issue against the opponent, the State of Gujarat, directing it not to proceed with the inquiry contemplated in the show cause notice dated 4th April 1960. The opponent will pay the petitioner's costs of the petition.


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