GORDHANBHAI KANJIBHAI Vs. UPLETA MUNICIPALITY
HIGH COURT OF GUJARAT
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(1.)Rule. Mr. J. R. Nanavaty learned Advocate for respondents waives service of rule. The no confidence motion is passed by 24 councillors of Upleta Municipality in a meeting on 27/05/1988 and that is being challenged by the petitioner the President of Upleta Municipality on the grounds: viz. (i) the reasons were not stated in the notice of no confidence motion and that notice was not as per the prescribed form (ii) the meeting was called on 17/05/1988 but was adjourned and subsequently in the adjourned meeting no confidence motion was passed but the meeting could not have been legally adjourned on 17/05/1988 (iii) all the members were not informed Or the adjourned meeting (iv) the resolution is passed mala fide as the petitioner - President - did not accede to certain demands of the members.
(2.)Shri C. K. Thakker Advocate for petitioner submits that as provided under sub-sec. (1) of Sec. 36 the Gujarat Municipalities Act the notice of no confidence motion should be in such a form as may be prescribed by the State Government and the State Government has prescribed the form in which it is stated that the grounds of notice for no confidence motion should be mentioned and therefore the notice of no confidence motion was not in accordance with statutory provisions bad in law and vitiates the proceedings and ultimately the no confidence motion. It is true that in the notice for no confidence motion no grounds were mentioned however what is required to be considered is the effect of not mentioning the grounds in a notice. Shri Thakker in support of his submission referred Babubhai Muljibhai Patel v. Nandlal Khodidas Barot & Ors. AIR 1974 SC 2105 in which the Supreme Court has observed:
"There is nothing in the language of Sec. 36 which makes it necessary to specify a ground when passing a motion of no confidence against the President. It is no doubt true that according to the form prescribed the ground for the motion of no confidence has to be mentioned in the notice of intention to move a motion of no confidence."
It is submitted that from the observation of Supreme Court it traespires that the notice should be in the form prescribed and the grounds should be mentioned. That submission deserves to be rejected as observations of Supreme Court are only narration of the provisions of the Act and not the law laid down by the Supreme Court nor that is the ratio of the judgment. On the contrary in that judgment the Supreme Court enunciated the general principles relating to no confidence motion observing 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 censured. 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 impropriety or lapse on the part of the authority. The essential connotation of a no confidence motion if that the party against whom such motion is passed has ceased to enjoy the confidence of the requisite majority of members.
(3.)In case of motion of no confidence what is more important is the will of the majority of the councillors or the members who have elected the President and not grounds on which he is sought to be removed from the office. It may be that the majority of councillors who have elected the President may lose confidence for certain reasons which they may not disclose and even they seek to remove the President. In a democratic institution the will of the majority should be given due weight and should prevail and not the form. Considering the very basic principle of no confidence motion the provisions in the form of notice of no confidence for giving reasons should be considered directory and not mandatory or obligatory specifically when the Section does not provide for giving such reasons. The non-compliance of it by not giving reasons for no confidence motion should not be considered fatal flaw to such a motion. When the majority has lost confidence in the President and that is expressed not only in the notice of no confidence motion but in the meeting and motion is carried out by requisite majority it cannot be brushed aside only on formal or technical ground like not mentioning grounds in notice. The forM of notice or such technicalities should give way to the will of requisite majority. Till the mandatory provisions of Act or Rules are violated or not complied or the mandatory procedure is not followed which strike at the very base of such motion such no confidence motion carried out by requisite majority should not lightly be set aside.
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