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TMI Blog2006 (9) TMI 552X X X X Extracts X X X X X X X X Extracts X X X X ..... inciple of Wednesbury unreasonableness or irrationality, classified by Lord Diplock as one of the grounds' for intervention in judicial review, was lucidly summarised by Lord Greene M.R. in Associated Provincial Picture Greene Ltd. Vs. Wednesbury Corpn. It is manifest that the power of judicial review may not be exercised unless the administrative decision is illogical or suffers from procedural impropriety or it shocks the conscience of the court in the sense that it is in defiance of logic or moral standards but no standardised formula, universally applicable to all cases, can be evolved. Each case has to be considered on its own facts, depending upon the authority that exercises the power, the source, the nature or scope of power and the indelible effects it generates in the operation of law or affects the individual or society. Thus, we are of the view that on facts in hand the High Court was fully justified in exercising its power of judicial review and set aside the election of the appellant. Whether the detention of the two councillors was such a trivial factor in the subject election, which could be overlooked by the Presiding Officer? - It is manifestly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the appellant was declared as elected on the basis of draw of lots, held as per the prescribed procedure. Admittedly, the controversy did not relate to counting of votes. Under the circumstances, the direction of the High Court that the votes of the two arrested councillors be treated as having been cast in favour of the first respondent, in our view, is based on pure speculation that they would have definitely voted for him. In our opinion, the High Court has erred on this aspect of the matter and therefore, to that extent the impugned judgment cannot be sustained. Accordingly, the order of the High Court, declaring the first respondent as the President of the Anand Municipality is set aside. In the result, the appeal partly succeeds and is allowed to the extent indicated above, with a direction to the Collector to reconvene the general meeting of the Municipality for the election of the President within two months of the receipt of copy of this order. - HON BLE K.G. BALAKRISHNAN AND DEVINDER KUMAR JAIN, JJ. For the Appellant : Shyam Divan, Sr. Adv., Nikhil Goel, Amar Dave and Naveen Goel, Advs. for Sheela Goel, Adv For the Respondent : Sharad Vakil, Sr. Adv., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s held for the said post wherein 19 councillors cast their votes in favour of the appellant and the remaining 19 councillors cast their votes in favour of the said Vijaybhai Haribhai Patel. In view of equality of votes, following the procedure laid down in Section 32 (4) of the Act, the Presiding Officer drew lots and declared the Appellant elected as President of the Municipality with effect from 8 th November, 2005 for a term of 21/2 years. 5. Being aggrieved, three councillors challenged the election of the Appellant by means of the aforementioned three Special Civil Applications under Article 226 of the Constitution of India, inter-alia, on the grounds that councillors Anilbhai Nathubhai Patel and Meenaben Pratapbhai Gohil were respectively arrested in relation to an offence under the Copyrights Act and for an offence under the Bombay Prohibition Act just a few minutes before the election meeting at 1.00 P.M. on 8 th November, 2005 with the sole object to somehow prevent both of them from casting their vote at the elections for the posts of the President and Vice-President as the B.J.P. leadership was unable to win over any of the 21 independent candidates, who had formed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ast in favour of the first Respondent and has consequently declared him as having been elected as President of Anand Municipality. The appellant is, thus, before us. 7. Mr. Shyam Diwan, learned senior counsel appearing for the appellant, whose election as President has been set aside by the High Court, in the first place, submitted that the Presiding Officer having acted strictly as per the procedure prescribed in Section 32 of the Act for the election of the President, the High Court ought not to have exercised its extra ordinary jurisdiction under Article 226 of the Constitution of India. Referring to the procedure laid down in sub-section 4 of Section 32 of the Act, learned counsel would submit that the two candidates having got equal number of votes in their favour the Presiding Officer had no option but to resort to draw of lots and declare the result accordingly. It is, thus, urged that under the given circumstances his decision to declare the election result cannot be categorised as arbitrary or irrational, warranting interference and therefore, the High Court was not justified in entertaining the writ petition and setting aside the election of a duly elected President ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent cannot be said to presumptuous or without any basis. Defending the decision of the High Court in declaring the said respondent as the elected President, learned counsel has urged that the Court is fully competent to rectify the electoral process and grant full redressal for the injustice meted out to the said respondent. Thus, the first question requiring consideration is as to whether on the facts of the instant case, the High Court was justified in exercising its power of judicial review and setting aside the election of the appellant? 9. Article 226 of the Constitution is designed to ensure that each and every authority in the State, including the State, acts bonafide and within the limits of its power. However, the scope of judicial review in Administrative matters has always been a subject matter of debate despite a plethora of case law on the issue. Time and again attempts have been made by the Courts to devise or craft some norms, which may be employed to assess whether an administrative action is justiciable or not. But no uniform rule has been or can be evolved to test the validity of an administrative action or decision because the extent and scope of judicial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w of seeing whether it has taken into account matters which it ought not to take into account, or conversely, has refused to take into account or neglected to take into account matters which it ought to take into account. Once that question is answered in favour of the local authority, it may still be possible to say that the local authority, nevertheless, have come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere. 12. In State of U.P. Anr. Vs. Johri Mal , this Court has observed thus: The scope and extent of power of the judicial review of the High Court contained in Article 226 of the Constitution of India would vary from case to case, the nature of the order, the relevant statute as also the other relevant factors including the nature of power exercised by the public authorities, namely, whether the power is statutory, quasi-judicial or administrative. The power of judicial review is not intended to assume a supervisory role or don the robes of the omnipresent. The power is not intended either to review governance under the rule of law or do the courts step into the areas exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision- making process and not the decision. 15. The following passage from Professor Bernard Schwartz's book Administrative Law (Third Edition) aptly echo's our thoughts on the scope of judicial review: Reviewing courts, the cases are now insisting, may not simply renounce their responsibility by mumbling an indiscriminate litany of deference to expertise. Due deference to the agency does not mean abdication of the duty of judicial review and rubber-stamping of agency action: [W]e must accord the agency considerable, but not too much deference; it is entitled to exercise its discretion, but only so far and no further. Quoting Judge Leventhal from Greater Boston Television Corp. Vs. FCC, he further says: the reviewing court must intervene if it becomes aware that the agency has not really taken a 'hard look' at the salient problems, and has not genuinely engaged in reasoned decision-making... Tested on the touchstone of the above principles, we are of the view that on facts in hand the High Court was fully justified in exercising its power of judicial review and set aside the election of the appellant. 16. Chapter III of the Act contains provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r arresting them on 5.11.2005; and (iii) there was no circumstance to show that the two councillors would have escaped and avoided arrest if they were allowed to go inside the meeting hall for voting at 1.00 P.M. and if they were not arrested till the meeting for electing President and Vice-President was over. We have no hesitation in holding that the detention of the two councillors, a few minutes before the election meeting was a relevant factor which ought to have been taken into account by the Presiding Officer to decide whether to continue with the election or to postpone it and call the meeting on some other day in terms of Rule 10. Failure to do so not only offends against procedural propriety, it makes his decision to go ahead with the election meeting perverse and irrational, a facet of unreasonableness, warranting interference under Article 226 of the Constitution. In this view of the matter, we are of the opinion that the High Court has not committed any error of law and/or jurisdiction in setting aside the election of the appellant as President of the Anand Municipality. 19. Since we feel that the principle Res ipsa Loquitur is squarely attracted on facts in hand, it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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