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Punjabhai Dahyabhai Patel Vs. Shah Jayantilal Manilal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1965)6GLR849
AppellantPunjabhai Dahyabhai Patel
RespondentShah Jayantilal Manilal and ors.
Cases ReferredT.P. Kumaran v. R. Kothandaraman
Excerpt:
.....was given to him to present his case by giving any notice or information about the appeal the state government had violated the principles of natural justice to an extent that the order must be quashed and further that the order on merits passed by the state government was also illegal and bad requiring this court to quash the same. if that order is found to be bad and violative of the principles of natural justice as stated hereabove such an order cannot be allowed to stand. if the state government were to find that no appeal is competent or that the state government cannot hear and decide the appeal in view of the provisions of the new act now the order that we propose to pass in this matter would revive the order passed by the collector on 20th may 1964. if on the other hand an..........the first respondent preferred an appeal under sub-section (2) of section 28 of the old act to the state government. the explanation of the respondent no. 1 both before the collector as also before the state government was that in respect of the two meetings which were held on 29th december 1962 and 28th january 1963 he could not attend as he did not know about the same as he was not served personally with the notice of those meetings as required under section 35 of the old act. it could not therefore be held that he absented at the meeting held during the four successive months from 29-12-62 to 29-4-63. that contention was not found favour with by the collector who on a consideration of the materials before him found that notices were served on his brother sri k.m. shahs and that the.....
Judgment:

N.G. Shelat, J.

1. The facts giving rise to this petition broadly stated are that the petitioner, Councillor of the Nadiad Borough Municipality, sent to the Collector of Kaira, an application dated 6th March 1964 requesting him to inquire and disqualify Respondent No.l Shri J.M. Shah from his continuance as a Councillor of the said Nadiad Borough Municipality, on the ground that he had absented himself for four successive months at the meetings duly held by the Municipality of Nadiad without the leave of the Municipality as required under Section 28(1)(d) of the Bombay Municipal Boroughs Act, 1925, (hereinafter referred to as the old Act). The Collector of Nadiad thereupon acting under Section 28(2) of the said Act made suitable inquiries and finding that Respondent No. 1 had absented himself at the meetings held during the period of four months issued a notice on 4th April 1964 calling upon him to show cause why he should not be disqualified as a Councillor of the Municipality under Section 28(1)(d) of the old Act. Pursuant to that notice he appeared and presented his statement before the Collector. In an inquiry held by the Collector of Kaira it was found that he had absented himself from attending the meetings held on 29-12-62 28 28 and 22-4-63 by the Municipal Borough of Nadiad during the period of four successive months without the leave of the Municipality and declared him as disqualified and that way disabled from continuing as a Councillor of the said Municipality under Section 28(1)(d) of the old Act. He further declared his office having fallen vacant. At that time the Respondent No. 1 was the President of the Municipality of Nadiad and as he ceased to be the Councillor he ceased to be the President of the Municipality from the data of the order viz. from 20-5-64. Aggrieved by that order of the Collector of Kaira Respondent No. 2 the first Respondent preferred an appeal under Sub-section (2) of Section 28 of the old Act to the State Government. The explanation of the Respondent No. 1 both before the Collector as also before the State Government was that in respect of the two meetings which were held on 29th December 1962 and 28th January 1963 he could not attend as he did not know about the same as he was not served personally with the notice of those meetings as required under Section 35 of the old Act. It could not therefore be held that he absented at the meeting held during the four successive months from 29-12-62 to 29-4-63. That contention was not found favour with by the Collector who on a consideration of the materials before him found that notices were served on his brother Sri K.M. Shahs and that the respondent No. 1 had known about the meetings to be held of those two dates. In the appeal filed by Respondent No. 1 before the State Government under Section 28(2) by its order dated 13th August 1964 it was held that service of the notices of those two meetings referred to above on Mr. K.M. Shah was not proper service as contemplated under Section 35 of the Act and that Respondent No I cannot therefore be said to have knowledge about the holding of those two meetings during that period of four months. His absence at those two meetings cannot therefore be taken into account to disqualify him from continuing as a Councillor of the Nadiad Borough Municipality. The State Government therefore allowed his appeal and set aside the order of the Collector of Kaira. It is against this order of 18-8-64 passed by the Government of Gujarat acting under Section 28(2) of the Act that the original applicant Shri Punjabhai Dahyabhai Patel has come to this Court praying for an appropriate writ for quashing the said order under Articles 226 and 227 of the Constitution of India inter alia alleging that he was interested in the decision of the appeal and as such a party to the dispute in appeal and since no opportunity was given to him to present his case by giving any notice or information about the appeal the State Government had violated the principles of natural justice to an extent that the order must be quashed and further that the order on merits passed by the State Government was also illegal and bad requiring this Court to quash the same.

2. It is common ground that the Respondent No. 1 did not attend the four meetings of the Borough Municipality of Nadiad held on 29-12-62 28 28 and 22-4-63 and that the period of his absence counted from 29-12-62 to 28-4-63 comes to four consecutive months. No permission was obtained by him for remaining absent on any of those meetings from the Municipality. The dispute so far merits of the matter go centres round the fact as to whether the service of notice of those two meetings of 29-12-62 and 28-1-63 effected on his brother Mr. K.M. Shah was proper service required under Section 35 of the old Act and if not whether he knew about the same before hand so as to require him to attend the meetings. It is unnecessary to go into that matter for according to Mr. C.T. Daru appearing on behalf of the petitioner the proceedings and the order passed by the State Govt, in appeal were liable to be quashed inasmuch as it has violated the principles of natural justice in not giving the petitioner an opportunity to appear or to state his case before it before quashing the order of the Collector passed against Respondent No. 1. On the other hand Mr. A.H. Mehta appearing on behalf of the Respondent No. 1 urged that since the Bombay Municipal Boroughs Act 1925 is repealed by Gujarat Municipalities Act 1963 and as by reason of Section 279(2) of the new Act the Respondent No. 1 has been holding office of a Councillor with effect from 1 -1-65 question regarding his disability under the old Act cannot be considered as no effective order in such a petition before us is possible to be passed and more so as the pending proceedings are not saved thereunder. According to him he has ceased to be a member of the then Borough Municipality and he has been holding office of a Councillor under the new Act with effect from 1-1-65 so that he would be governed by the new Act and that any order passed in this petition would be infructuous and ineffective and therefore no orders should de passed by this Court. Before however considering Mr. Mehtas submission in that direction it is essential first to determine as to whether the order passed by the State Govt, is such which is liable to be quashed as contended by the learned advocate for the petitioner. In the affidavit filed by the Under Secretary of the Govt, of Gujarat Panchayats and Health Department as also in the affidavit filed by Respondent No. 1 various contentions have been raised. According to them the proceedings before the third Respondent i.e. the State Govt, were of an administrative character and were not before a judicial or a quasi-judicial tribunal so as to require it to give notice of hearing of the matter before it. Besides this petitioner was in no way a party to that appeal and that there existed no lis between him and Respondent No. 1 inasmuch as no disputes or rights between them were to be adjudicated upon. He had therefore no right to be heard and there was thus no violation of any rule of natural justice so as to require this Court to quash that order of the State Government.

3. The challenge is that the order of the State Government is null and void in asmuch as rules of natural justice are violated as the petitioner who can be easily said to be an interested or an aggrieved party in the matter having not been even informed of the hearing of the appeal or given any opportunity of being heard or even presenting his case before setting aside the order passed by the Collector affecting Respondent No. 1 before us. The State Govt, was an appellate authority constituted under Section 28(2) of the old Act against the orders passed by the Collector under Section 28(1) of the Act. It had therefore to act fairly and judicially and not in an administrative capacity. In was acting obviously as a quasijudicial body and therefore one has to presume that such a body or an officer has to respect the fundamental rules of natural justice and that presumption can only stand rebutted by express words used to the contrary by the Legislature in the Act or inferred by necessary implication. This view of ours finds support from a decision of the Division Bench of this High Court in a case of Ramji v. Manilal reported in 1 G.L.R. p. 53 (1960). In that case a voter of Baroda had filed an application against one B the Municipal Councillor alleging that he had incurred disqualification to continue as a member of the Municipality under Section 12(2)(b) of the Bombay Municipal Boroughs Act. After hearing the parties the Collector of Baroda held that the petitioner had incurred disqualification. Against that order B preferred an appeal to the State of Bombay under Section 28(2) of the old Act. The State Government without issuing any notice to the petitioner allowed the appeal and set aside the order of the Collector of Baroda. It was against that order of the Government that the petitioner filed a Special Civil Application in the High Court claiming that the Government had violated the fundamental principles of natural justice. That was resisted on the ground that though the function of the Government was of a quasi-judicial nature it was not bound to hear the party at every stage of the proceedings. It was further contended that the rule was applicable only to the appellant and the advantage of the rule could not be taken by the respondent. On those facts it was held that in the first instance the presumption was that the Legislature intended to respect the rules of natural justice and if the contention is that the rule was intended to be abrogated then the provision must be either express or necessarily implied. Their Lordships further held that there was nothing in Sub-section (2) of Section 28 of the old Act which justified the submission that the Legislature intended that the rules of natural justice should be abrogated except in the case of a Councillor in proceedings before the Collector. In the course of the judgment it has been further observed that though a quasi-judicial officer acting in his appellate jurisdiction is not bound to give a personal hearing to the appellant he is bound to give an opportunity to the appellant to state his case. This duty arises because as a quasi-judicial officer the appellate authority is bound to act fairly and to give an opportunity to each of the parties to correct any prejudicial statements which have been made by the lower authority against it. It is therefore clear that the State Government passed an order in appeal under Section 28(2) of the Act as a quasi-judicial authority and fundamental rules of natural justice are required to be followed in deciding matters before it since they cannot be said to have been abrogeted by Legislature.

4. In the case before us that right is claimed by the petitioner who is said to be not affected by the order in the sense that question of disqualification did not affect him personally. But if he is a person who can bel said to be interested in the decision of the matter he becomes an aggrieved party if the order of the Collector is set aside. In the case of Ebrahim Aboobakar v. Custodian General of Evacuee Property (1952) 3 S.C.R. 696 such a point came to be considered and it was held that a person aggrieved of a decision is a person claiming to be interested in the inquiry. In that case one Tekchand was the first informant on the basis of whose information a notice to show cause as to why a particular property could not be held as an evacuee property was issued by the Custodian of Evacuee Property. The informant was not heard in the matter and it was held that the Custodian was bound to hear him on truth and validity of information given by him. The Supreme Court in that case further observed that any person who makes an application to a Court for decision or any person who is brought before a Court to submit to a decision if the decision goes against him would become an aggrieved party by that decision. The case of Ramji v. Manilal Solanki referred to here above also lays down a similar principle. In that case a voter had moved the Collector for disqualifying a person by reason of certain disqualifications contemplated in Section 12(2) of the Act and he was considered to be a proper person interested in the decision of the matter. It was pointed out that a lis or a dispute arose between the parties and if in that dispute any order happened to be passed obviously that person who had taken the trouble of making the allegations and of adducing evidence and spent his time and energy in proving the allegations cannot be regarded as a stranger to the proceedings. In the case before us the petitioner in fact had submitted an application for making necessary inquiry and determining the question as to the disqualification of Respondent No. 1. He had also sent materials in suport of his application to the Collector. In other words he was a person interested in the final decision of that application and had as much right to state his case before the State Government when the order passed against Respondent No. 1 was to be set aside by the State Government while hearing the appeal against the decision of the Collector under Section 28(2) of the Act. Such a person can therefore be said to be an aggrieved party who is entitled to claim the right to state his case before the State Government. He becomes the respondent as it were and that way has atleast as much right to be heard and to state his own case and to meet the case made out in the memo of appeal as the appellant has a right of stating his case against the impugned order of the lower authority. In fact if the appellate authority were to decide the appeal without giving a notice to the respondent then the appellate authority would be violating another and equally important limb of the said principles which states that no adverse order shall be passed against any person without that person being given an opportunity of being heard. In other words it is not only the appellant before the State Government who was affected by the order of the Collector was required to be given hearing or at any rate an opportunity to state his case but that the other side viz. the petitioner before us who had actually moved the Collector for taking up the matter and inquire as to the disqualification being incurred by Respondent No. 1 under the provisions contained in Section 28(1)(d) of the Act had a similar right to state his case.

5. In our view therefore the State Government while exercising its power of hearing an appeal under a Statute was a quasi-judicial authority and that it had a duty cast upon it to act judicially. Such a duty inherently requires any such quasi-judicial authority even to give each of the parties to a dispute an opportunity of adequately presenting his case before any decision is given. That right of being given an opportunity of hearing is to both sides and a person such as the one in the present case before us was interested in the decision of the matter by reason of his being a person complaining or moving the appropriate authority to decide the matter apart from his being interested in the matter as a Councillor of the Municipality of which the person proceeded against was a Councillor of the same Municipality.

6. It is also clear that no such notice of hearing of the appeal was issued to this petitioner and no opportunity was given to him to state his case before disposing of the appeal by the State Government. In those circumstances it is obvious that the rules of natural justice were ignored and violated by the State Government while deciding the appeal before it under Section 28(2) of the old Act. Now a writ as prayed for by the petitioner cannot be issued by Court acting under Articles 226 and 227 of the Constitution of India merely because the decision is wrong; but if the order passed by the lower authority is passed without jurisdiction or its having acted in excess of its jurisdiction or in violation of principles of natural justice it cannot be allowed to stand and must be quashed by issuing appropriate writ in a matter. That principle has been laid down in Ebrahim Aboobakars Case by the Supreme Court referred to hereabove. That principle has been further elaborated in a case of T.P. Kumaran v. R. Kothandaraman (1962) 3 G.L.R. p. 856 by a Division Bench of this Court. It has been held in that case that it would be the duty of the superior Court to interfere and correct the error of the Court or tribunal of the first instance irrespective of the fact that an appeal was not resorted to or even if it had been resorted to the order was confirmed. Though every defect in a proceeding does not make the order of the authority of the first instance a nullity but the defect must be concerning either want of jurisdiction or a patent violation of the principles of natural justice such as want of notice or inquiry to render an order null and void. It is therefore clear that the order passed by the State Government violating the fundamental principles of natural justice is a nullity. A superior Court in exercising the powers under Articles 226 and 227 is therefore, justified in interfering with such an order and correcting the error made by the State Government while acting as an appellate authority under the provisions contained in Section 28(2) of the old Act.

7. That, takes us to the main point urged by Mr. Mehta learned advocate appearing for Respondent No. 1 before us. His contention was that in view of the repeal of the old Act under Section 279(1) of the new Act and having regard to Sub-sections (2) and (3) thereof the Respondent No. I is no longer a Councillor of the Municipality of Nadiad under the old Act and that such a Municipality no longer exists. According to him the Municipality would be governed by provisions of the new Act with effect from 1-1-65 and he becomes a Councillor by reason of the deeming provisions contained in Section 279(3) of the new Act. What we are concerned with at present in this proceeding before us is as to the legality or otherwise of the order passed by the State Government acting as a quasi-judicial body while hearing the appeal against the order of the Collector passed under Section 28(1) of the old Act. If that order is found to be bad and violative of the principles of natural justice as stated hereabove such an order cannot be allowed to stand. In doing so it would hardly be proper for us to look as to what the effect of the provisions of the new Act would be and it is unnecessary to express any opinion in that respect. If the State Government were to find that no appeal is competent or that the State Government cannot hear and decide the appeal in view of the provisions of the new Act now the order that we propose to pass in this matter would revive the order passed by the Collector on 20th May 1964. If on the other hand an appeal can be heard and decided by the State Government by reason of the applicability of the provisions contained in the General Clauses Act or the like it is open to the State Government to consider the same and decide the appeal in accordance with law. In any view of the case therefore the order that is being passed by us would not be such as it would have no effect whatever. The order would be merely to quash and set aside the order of the State Government. We shall however refrain from giving any further directions in the matter. The order would not thus be infructuous or ineffective and since we find that the order is bad by reason of the same being violative of the principles of natural justice it cannot be allowed to stand and shall have to be quashed.

We therefore quash and set aside the order passed by the State Govern-ment in appeal against the order passed by the Collector on 20th May 1964. Respondent No. 1 shall pay the costs of the petitioner. Office to issue the minutes of the order to both sides.


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