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TMI Blog2002 (2) TMI 1318X X X X Extracts X X X X X X X X Extracts X X X X ..... of Social Justice Committee under Section 123 of the Gujarat Panchayats Act, 1993. It is directed against the order of the learned single Judge passed in Special Civil Application 3484 of 1997 in the case of Narmadaben v. Parmar v. Taluka Development Officer, Kheralu, decided on 15-10-1997 and the judgment is reported in 1998 (1) GLR 225. 3. A common question of general importance arises in all these cognate matters. The question raised on behalf of the petitioners/appellants is, whether in the absence of express provisions, for moving and passing of a no-confidence motion against the Chairman/Vice-Chairman of Agricultural Produce Market Committee under the Gujarat Agricultural Produce Markets Act, 1963 and the Rules framed thereunder, and the Chairman of Social Justice Committee under the Gujarat Panchayats Act and the Rules framed thereunder, such a motion can validly be passed. 4. The learned single Judge by separate orders passed in Special Civil Application Nos. 5120 and 7278 of 2001 concerning Valsad and Junagadh Market Committees respectively found that the decision of the learned single Judge (M. S. Shah, J.), in the case of Narmadaben v. Parmar (supra) in which reliance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : (i) eight agriculturists to be elected by members of managing committees of co-operative societies dispensing agricultural credit in the market area; (ii) four members to be elected in the prescribed manner from amongst themselves by the traders holding general licences; (iii) two representatives of the cooperative marketing societies situate in the market area and holding general licences to be elected from amongst the members of the managing committees of such societies; (iv) one member to be nominated by the local authority; and (v) two members to be nominated by the State Government. 10. A Market Committee constituted under Section 11 has to elect from amongst its members belonging to the class of agriculturists, traders or representatives of co-operative marketing societies, its Chairman and Vice-Chairman. 11. Under Section 18, business of the Market Committee has to be conducted in accordance with the Rules which may also prescribe the quorum at the meetings. 12. Section 19 provides that every contract entered into by the Market Committee shall be in writing and shall be signed on behalf of the Market Committee by the Vice-Chairman and two other members and it is only s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n recommending the removal of any member shall be passed by the market committee unless the member to whom it relates has been given a reasonable opportunity of showing cause why such recommendation should not be made; Provided further no order for removal of the member shall be passed by the Director unless the member has been given a reasonable opportunity of being heard. (2) A member so removed may, within 30 days of the date of communication thereof to him, make an appeal to the State Government. (3) The decision of the State Government on appeal made under Sub-section (2), and subject thereto, the decision of the Director under Sub-section (1), shall be final." 15. Section 59 confers rule making power on the State Government for the purpose of carrying out the provisions of the Act. In exercise of the Rule making power under Section 59, the State of Gujarat framed Gujarat Agricultural Produce Markets Rules, 1965. Procedure for election to the Market Committee is contained in Rules under Part III. The procedure for election to Chairman. Vice-Chairman to Market Committee and appointment of Secretary, Officers and servants are contained under Part IV in Rules 31 to 41. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce for any reason before the expiry of his term of office, the Chairman, shall call a meeting of the market committee to elect another person as Vice-Chairman from amongst its members of the class specified in Clauses (i), (ii) and (iii) of Sub-section (1) of Section 11. The Chairman shall preside over such meeting and shall be entitled to vote. Every Vice-Chairman elected under this sub-rule to fill a casual vacancy shall hold office for so long as the Vice-Chairman in whose place he is elected would have held it if the vacancy had not occurred. (4) Subject to the provisions of Sub-rules (2) and (3), the provisions of Rule 31, shall so far as may be, apply to the election of a Chairman or Vice-Chairman to fill up a temporary vacancy under this rule." 18. Rule 35 contains the procedure for conducting business of the Market Committee through meetings. Sub-rule (6) of Rule 35 provides that 1/3rd of the number of members of the Market Committee shall form a quorum for meeting of the Market Committee. 19. One more relevant provision is Rule 32 which provides the functions and powers of Chairman and Vice-Chairman and reads thus :- "32. Functions and Powers of the Chairman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on extraneous grounds. For this purpose, a stringent provision is made providing that though such Sarpanch or President is elected by simple majority, he can be removed by a motion of no-confidence passed by 2/3 majority and that too of total number of members (and not 2/3rd number of members present and voting in the motion). 22. So far as the no-confidence motion moved and passed against the Chairman of Social Justice Committee of Taluka (which is the subject of L.P.A. No. 1451 of 1997 arising out of S.C.A. No. 3484 of 1997) is concerned, the learned Counsel Shri Tushar Mehta referred to the provisions of Sections 123 and 145 of the Gujarat Panchayats Act, 1993 to point out that both the provisions provide for constitution, tenure, functions etc. of various committees to be constituted under Taluka Panchayats and District Panchayats. Attention is also invited to Sections 126 and 140 of the Gujarat Panchayats Act, 1993. It is pointed out that the procedure in respect of meetings of statutory committees is left to be provided by way of subordinate legislation in the form of statutory rules. Comparing provisions of the Gujarat Panchayats Act, it is sought to be demonstrated that w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sons of statutory committees can be so removed by a simple majority, without any stringent procedural safeguards, statutorily providing and permitting the person facing such motion even to exercise his casting vote. It is argued that the legislative intent is apparent by omission to make provisions for such removal/ recall. It is a conscious and deliberate omission, and therefore, such a right cannot be read either a:; an implied right or an inherent right. On this aspect, it is further argued that even if it is assumed that there is a casus omissus or an inadvertent lapse in the provisions of the Act, such provision or principle cannot be read or supplied by the Court as that would be encroaching the sphere of legislation. It is submitted that such a right of passing no-eonfidence motion cannot be inferred even by implication from the provisions of the Act, may be, that without such a right, sometimes, the elected holder of office losing confidence of the elected body finds it difficult to function efficiently. 24. Reliance is placed on the "Principles of Statutory Interpretation" by Justice G. P. Singh, 2001 Edition, pages 57 to 62, Crawford's "Statutory Inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of the Supreme Court in the case of Mohan Lal Tripathi v. District Magistrate, Rae Bareilfy and Ors., reported in AIR 1993 SC 2042. 28. Learned Counsel for the petitioners and the appellants question the correctness of the judgment of learned single Judge in the case of Narmadaben (supra) reported in 1998 (1) GLR 225 which is the subject-matter of L.P.A. No. 1451 of 1997 before us. It is submitted that the learned Single Judge in reading a provision of no-confidence motion in the Gujarat Panchayats Act and Rules for its application to Chairman of Social Justice Committee, wrongly took recourse to the provisions of Section 16 of the General Clauses Act, and committed an error in relying on overruled decisions of Punjab and Haryana High Court and Andhra Pradesh High Court. It is pointed out on behalf of the petitioners [hat Punjab and Haryana decision reported in the case of Haji Anwar Ahmed Khan v. The Punjab Wakf Board and Ors., AIR 1980 P&H 306 has been overruled in the case of Jagdev Singh v. Registrar, Co-operalive Societies, Haryana and Ors., AIR 1991 Pun. & Haryana 149 and N. Venkataratnam Naidu v. The District Co/lector, Nellore and Ors., AIR 1972 AP 349 relied by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings of Market Committee, but also to watch over the financial and executive administration of the Market Committee, exercise supervision and general control over the acts and proceedings of the employes of the Market Committee in matters of executive administration and concerning accounts and records. He has also extraordinary powers, in case of emergency, on execution or stoppage of any work or doing of any act which may subsequently require the sanction of the market committee. The learned Counsel for the private respondents submitted that keeping in view the nature of office of the Chairman and Vice-Chairman, his duties, functions and powers as are conferred on him under the Act and specifically under Rule 32, interpreting the provisions of the Act to find in it complete omission of passing of a no-confidence motion by the members would be derogatory to the smooth functioning of the committee. It is submitted that enjoyment of confidence of the members of the committee by the Chairman/Vice-Chairman is necessary for him to lead the committee and carry on [he functions of the Act and fulfil its purposes. An attempt was made from the provisions of the Act and the Rules pertaining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted, what should be the procedure, who should exercise it within the ambit of constitutionally permissible limits falls in the domain of legislative power." 32. Taking guidance from the above authoritative pronouncement of the Apex Court, we have to construe the provisions. First, we take up the case under Agricultural Produce Markets Act to examine whether any statutory right exists in the members of the Market Committee to recall or remove its Chairman/ Vice-Chairman by moving a no-confidence motion. 33. The arguments advanced on behalf of the petitioners appear plausible that since in the Agricultural Produce Markets Act there is no specific right given and procedure provided for moving and passing a no-confidence motion by the members of the Market Committee, such provision cannot be read by implication. In this respect, it is also argued that the foremost requirement of passing of a no-confidence motion is that the person against whom the motion is moved and may be passed must be given a reasonable opportunity to participate in the proceedings of the motion so as to place his point of view and persuade or convince the members to drop the motion and repose confidence in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an or person authorised by him for the purpose of election. 35. The procedure for convening meeting and transacting business of the Committee is to be found in Rule 35. Sub-rule (5) of Rule 35 which is quoted below allows business to be transacted by the committee by the vote of majority of the members present at the meeting :- "35(5). All questions which may come up before the committee at any meeting shall be decided by the vote of the majority of the members present at the meeting and in every case of equality of votes the person presiding over a meeting shall have and exercise a second or casting vote." 36. Under Sub-rule (6) of Rule 35, 1/3rd of the number of members of the Market Commitlee are to form quorum for the meeting. If there is quorum available for a particular business in a meeting, all decisions can be taken by vote of die majority of the members. Under Sub-rule (7) of Rule 35, the Director is authorised to attend any meeting of the Market Committee, although he will not have any right to vote. It is obligatory for the Secretary under Sub-rule (8) to attend every meeting of the Market Committee, to express his views and explain any matter under discuss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chairman, as the case may be". The second proviso quoted above makes it explicit that continuance of membership of the Market Committee is necessary for holding the office of Chairman or Vice-Chairman as the case may be. It is only by virtue of his membership of the committee that a Chairman or Vice-Chairman gets elected to those offices. In accordance with the provision of Section 13 a member of the committee can be removed by the recommendations of atleast 2/3rd of the whole number of members on the Committee, if the member is found guilty of neglect or misconduct in the discharge of his duty or of any disgraceful conduct or he has become incapable of performing his duties as a member. Proviso below Sub-section (1) of Section 13 of the Act requires that resolution recommending removal of member has to be passed by the Market Committee, only after giving the concerned member a reasonable opportunity of showing cause, why such recommendation of the Director be not accepted. By second proviso of Sub-sec. (1) of Section 13, he is also required to be given a reasonable opportunity of being heard. 39. In the course of arguments on behalf of the petitioners/appellants, it was argu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rman instead of Director, the Chairman shall call a meeting of the Market Committee, to elect another Vice-Chancellor for filling the vacancy. 44. The language of Sub-rule (2) of Rule 33 is required to be noted and to be applied to various situations in which office of Chairman or Vice Chancellor may fall vacant. The contention advanced on behalf of the petitioners was that office of Chairman or Vice-Chairman may fall vacant only by death, resignation, or ceasing to hold office by him for reason of loss of his membership of the committee in the circumstances like Sections 13 and 14 of the Act. 45. The contention advanced by petitioners on interpretation of second proviso to Sub-rule (1) and Sub-rule (2) of Rule 33 does not seem acceptable. What is to be noted from the plain language of Sub-rule (2) of Rule 33 is that after the words like "dying", "resigning", the expression used is "or ceasing to hold office for any reason before the expiry of his term of office". The above expression "ceasing to hold the office for any reason" cannot be restricted to merely reason contained in second proviso to Sub-rule (1) of Rule 33. Under the second pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the conclusion that such right in the elected body of its members does not exist under the provisions of the Agricultural Produce Markets Act. 48. As we have taken note of the Rules and quoted them above, election to the Office of the Chairman and Vice-Chairman can be made by the members of the Committee with quorum of l/3rd by simple majority. If the election to the Office can be made by l/3rd members present as the quorum, by simple majority, a no-confidence motion to remove or recall a member elected to the Office of Chairman or Vice-Chairman by simple majority with same 1/3 quorum is permissible and not expressly prohibited by either the provisions of the Act or the Rules. 49. The learned single Judge (M. S. Shah, J.), in the order impugned in L.P.A. No. 1451 of 1997 rightly took recourse to Section 16 of the Bombay General Clauses Act :- "16. Power to appoint include power to suspend or dismiss. - Where, by any Bombay Act or Gujarat Act a power to make any appointment is conferred, then, unless a different intention appears, the authority having powers to make the appointment shall also have power to suspend or dismiss any person appointed by it in exercise of that po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r for moving a motion by the members and there is also no prescribed majority by which it can be passed, but as we have held above, in the absence of such a provision of a requisite majority for passing and moving it, no-confidence motion like any other subject or agenda in a meeting, can be passed by simple majority. As we have held above, if the election in a meeting with requisite quorum can be made by simple majority to the post of Chairman/Vice-Chairman, a no-confidence motion can be moved and be passed by simple majority against the holder of the post. 53. So far as the procedure is concerned, Rule 35 of the Agricultural Produce Markets Act which contain a detailed procedure is applicable for passing a no confidence motion. The procedure of meeting for electing Chairman and Vice-Chairman, the functions and powers of the Chairman and the Vice-Chairman and other incidental provisions for conducting the business of the committee are contained in Part IV of the Rules. Rule 76 empowers the Director of Agricultural Marketing and Rural Finance, Gujarat State, to call meeting of a Market Committee, on requisition from at least half of the members of the Market Committee or on his ow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with specification of time and place at which such meeting is to be held and all members including Chairman or Vice-Chairman against whom no-confidence motion is proposed are required to be served with the notice of the meeting. A copy of the notice of the meeting is also required to be sent to the Director or his authorised representative. Sub-rule (7) of Rule 35 provides, that the Director or his authorised representative shall be entitled to attend any meeting, but he shall not be entitled to vote. The presence of Director or his authorised representative in every meeting including in a meeting specially called for passing a no-confidence motion, will ensure smooth holding of such a meeting with due participation of all the members and grant of opportunity to participate and speak to the holder of the elected office against whom the no-confidence motion is proposed to be moved and passed. Under Sub-rule (8) of Rule 35, it is obligatory for the Secretary of the committee to attend every meeting to express his views and explain facts concerning the topic or agenda under discussion. Secretary, is thus responsible for proper conduct of every meeting of the Market Committee, although ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its members. Enjoyment of confidence by the leader of the democratic body is essential in decision making process and it is more necessary for implementation of the decisions of the majority. Take for example that a particular decision is taken by majority, but due to lack of confidence enjoyed by the leader, the decision is not carried out, a conflict, and some times, a stalemate will be created in the working of the elected body. As has been quoted above, Section 19 of the Agricultural Produce Markets Act requires that every contract entered into by Market Committee shall be in writing and shall be signed on behalf of the Market Committee by its Chairman and two other members and no contracts not so executed shall be binding on it. A situation might arise where the Chairman, because he has lost confidence, is unable to obtain the signatures on a contract to be executed on behalf of the committee, although a resolution in favour or against such a contract had already been passed. Similarly, Rule 32 of the Agricultural Produce Market Rules confers powers for performing important functions by the Chairman and Vice-Chairman, such as, to preside over the meetings, conduct business, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of no-confidence has to be mentioned in the notice of intention to move a motion of no-confidence. It does not, however, follow therefrom that the ground must also be specified when a motion of no-confidence is actually passed against 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 case of a censure motion to set out the ground or charge on which it is based, a motion of no-confidence need not set out a ground or charge. A vote of censure presupposes that the persons censured have been guilty of some impropriety or lapse by act or omission and it is because of that lapse or impropriety that they are being censure. It may, therefore, become necessary to specify the impropriety or lapse while moving a vote of censure. No such consideration arises when a motion of no-confidence is moved. Although a ground may be mentioned when passing a motion of no-confidence, the existence of a ground is not a prerequisite of a motion of no-confidence. There is no legal bar to the passing of a motion of no-confidence against an authority in the absence of any charge of impropri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, nothing in the provisions of Section 123 of the Act which gives any fixed term to the Chairman of the committee although the members of the Committee get term co-extensive with the duration of the Panchayat. If the legislature intended to confer any such fixed term on the Chairman of the Committee the legislature would have clearly provided so. It is also true that there are specific provisions for removal of Sarpanch/ Upa-sarpanch of the Gram Panchayat, President/Vice President of Taluka Panchayat under Sections 56, 70 and 84 respectively, but there is no such provision for chairman of any Committee. But Mr. Jani has rightly pointed out that in all those provisions specific provision is made requiring passing of no-confidence motion by 2/3rd majority and not by a simple majority. It is a basic tenet of democracy that an elected body has the power to elect its office-bearers and if the body is not held to have power to appoint or remove its officebearers, the body will never be able to enforce accountability or responsibility of its office-bearers or control the action of its office-bearers. For instance, if one looks to the constitution of the Social Justice Committee, it c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tenure. Such a result can be justified only if the common law stated above has been changed by the statute. The view of the Bar Council of India is, on the other hand, based on (he very silence of the statute on this point. We are of the opinion that such silence indicates that the common law regarding the removal of the holder of an office remains unchanged. The statute does not, therefore, have to say that the Chairman of the State Bar Council would be removable by a resolution of no-confidence. The reason is that such power of removal is inherent in the Bar council which elects its Chairman. The power given to the State Bar Council to elect its Chairman is the codification of only a part of the common law. Such codification does not change the other part of the common law which implies in the State Bar Council the power to remove the Chairman so elected. Just as rules can be made under Section 15 to carry out the expressed power of the Bar Council to elect the Chairman, it would appear that rules may also be made to carry out the implied power of the State Bar Council to remove the Chairman. The two powers are inseparable in common law. They can be separated only by a statutory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Punjab and Haryana High Court and Division Bench decision of Andhra Pradesh High Court (supra), because we have construed the provisions of Agricultural Produce Markets Act and the Rules and the Panchayats Act and the Rules, as discussed above. Similarly, the decisions of Nagpur Bench of Bombay High Court (1960 LLJ 99) and Division Bench decision of Bombay High Court (AIR 1982 Bom 216) are not only distinguishable on facts, but to the extent they hold that provisions of Sections 16 of the General Clauses Act not applicable to elective office, we have expressed our respectful disagreement for the reasons mentioned above. 66. Our conclusion, therefore, both in relation to the Chairman and/or Vice-Chairman of Market Committee under the Agricultural Produce Markets Act and the Rules and Chairmen of various Committees of Panchayats under the Panchayats Act and the Rules, is that if a holder of office is elected by simple majority by the body in requisite quorum, he can be removed or recalled by a simple majority, in the absence of any provision prohibiting such a course or prescribing any particular procedure of moving the no-confidence motion with a particular majority and passing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and as a result thereof, learned Counsel for the appellant now informs, that not only mat the petitioner has completed his tenure in the office of the Chairman of Social Justice Committee of the Taluka Panchayat, but even the term of the Taluka Panchayat was completed long back. In the circumstances, the Letters Patent Appeal and the Civil Application preferred therein have been rendered infructuous and are accordingly dismissed. LETTERS PATENT APPEAL NO. 1177 OF 2001 IN SPECIAL CIVIL APPLICATION NO. 9842 OF 2001 71. This Letters Patent Appeal has arisen from an interim order dated 23-10-2001 passed by the learned single Judge refusing interim relief against passing of a no-confidence motion against the petitioner as Chairman of the Market Committee, Valsad. Since by the same petitioner, after passing of no-confidence motion, separate Petition (Special Civil Application No. 5120 of 2001) has been filed and is being decided by us by this common judgment, it is not necessary to pass any separate order in this Letters Patent Appeal No. 1177 of 2001 arising out Special Civil Application No. 9842 of 2001 in which only an interim order refusing stay of calling meeting and order of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Nos. 1 and 2 sent the protest letter stating that no such provision of passing a no-confidence motion exists. On the advice of the Director, the Deputy Director, however, had called a special General Meeting of the Members of the Committee on 5-9-2001. In view of the pendency of this Petition, ultimately no-confidence motion came to be passed in the meeting held on 1-10-2001. The proceedings of the meeting have been placed on record to show that the no-confidence motion was carried against the petitioner Nos. 1 and 2 by a majority of 10 against 5, The petitioner No. 1 (Nandlal Bavanjibhai Posiya) who was elected as Chairman and was present in the meeting of the no-confidence motion, although petitioner No. 2 (Pragjibhai Bhanabhai Karkar) remained absent. The no-confidence motion passed against the petitioner Nos. 1 and 2 although passed by majority was not implemented because of the interim order of stay passed by this Court. In view of our opinion and conclusion expressed by us above by this common judgment, the interim relief granted is vacated. The Petition is dismissed. It is directed that no-confidence motion passed against petitioner Nos. 1 and 2 shall now be implemented. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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