PUNJABHAI DAHYABHAI PATEL Vs. SHAH JAYANTILAL MAGANLAL

JUDGEMENT

(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. 1 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 sec. 28(1)(d) of the Bombay Municipal Boroughs Act 1925 (hereinafter referred to as the old Act). The Collector of Nadiad thereupon acting under sec. 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 sec. 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 sec. 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-sec. (2) of sec. 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 sec. 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 sec. 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 sec. 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 sec. 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 sec. 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 sec. 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 & 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 sec. 28(2) of the old Act against the orders passed by the Collector under sec. 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 sec. 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 sec. 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-sec. (2) of sec. 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 sec. 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.