# BABUBHAI MULJIBHAI PATEL v. NANDLAL KHODIDAS BAROT & ORS

- **Citation:** [1975] 2 S.C.R. 71
- **Court:** Supreme Court of India
- **Decided:** 1974-09-17
- **Case number:** · Civil Appeal No. '1707 of 1973
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/babubhai-muljibhai-patel-v-nandlal-khodidas-barot-ors-6226
- **Pages:** 22

## Headnote

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71
BABUBHAI MULJIBHAI PATEL
v.
NANDLAL KHODIDAS BAROT & ORS.
September 17, 1974
[H. R. KHANNA, M. H. BEG AND V. R. KRISHNA IYER, IJ.)
Constitution of lndia, 1950-Art. 226-Nature and stope of jurisdiction of
the High Court-Whether the High Court could decide writ petitions on affi-·
davits-Whether the High Court should call all the deponents for cross-examination-Difiertnce between a motion of no confidence and ce11SUre motion.
A vote of no confidence was moved by respondent no. 1 against the appellant
who was the elected President of a Mllllicipality. The appellant's party claimed
that the motion was lost while the respondent no. 1 claimed that it was carried.
Since the appellant did not vacate his office respondent no. 1 filed a writ petition
under article 226 of the Constitution. Before the High Court a number of affi.
davits had been filed on behalf of the appellant and the respondent. After crossexamining six persons fdr respondent and two for the appellant the High Court
held that the appellant had ceased to be the President.
On appeal to this Court it was contended ( 1 ) that as the dispute between
the parties involved questions of fact the High Court should have referred the
parties to a separate suit, (2) that the High Court should have permitted crossexamination of all deponents, (3) that as the cross-examination of only a few of
the (feponents had beeq permitted the affidavits of others who were not cross"
examined could not be taken into consideration; ( 4) that the High Court was
wrong In relying upon the version of respondent no. l that one of the councillors
who was a supporter of the appellant had supported the motion of no confidence;
. ( 5) that the councillors had to stick to the ground specified in the notice and
:ould not depart from it in passing the motion of no confidence.
Dismissing the appeal,
HELD : (I )(a) The appellant
could not be
heard to say that the
Court should have relegated respondent no.
1 to the
remedy of a
suit. Had the respondent no. 1 been directed to seek his remedy by way
of a suit the relief secured by him would have been wholly illusory because by·
the time he would succeed. in the litigation, the term of the office of the President
would have either already expired or be about .to expire. The appellant in that
event would have continued as the President of the Municipality even though
he had ceased to enjoy the confidence of the requisite number of councillors. The
entire' concept of a democratic institution would thus have been set at naught.
[79H; 80B-C]
(b) In a petition under Art. 226 the High Court has jurisdiction to try issues:
both of fact and law. The words "as far as it can be made applicable'' occurring
in s. 141 of the Code of Civil Procedure make it clear that in applying the various
provisions of the' Code to proceedings other than those of a suit, the court must
take into account the nature of those proceedings and the relief sought.
The
object of article 226 is to provide a quick and inexpensive remedy to aggrieved
parties. Power has consequently been vested in the High Courts to issue orde~s
or writs. If the procedure of a suit had also to be adhered to in the case of wnt
petitions the entire purpose of having a quick 2nd inexpensive remedy would b.c
defeated.
A writ petiiion under article 226 is essentially different from a smt
and it would be incorrect to assimilate and incorporate the procedure of a smt
into the proceedings of a petition under article 226. The High Court is not deprived of this jurisdiction to entertain a petition under article 226 merely because
in considering the petitioner:s right of relief, questions of fact may fall to be determined.
[SOD-G]
72
SUPREME COURT REPORTS
[1975] 2 s.c.R.
Gunwant Kaur v. Bhatinda Municipality A.I.R. 1970 SC 802 relied on.
(2) It is difficult to accede to this contention. Normally writ petitions are
decided on the basis of affidavits. In some cases, however, where it is not possible for a court to ar

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71
BABUBHAI MULJIBHAI PATEL
v.
NANDLAL KHODIDAS BAROT & ORS.
September 17, 1974
[H. R. KHANNA, M. H. BEG AND V. R. KRISHNA IYER, IJ.)
Constitution of lndia, 1950-Art. 226-Nature and stope of jurisdiction of
the High Court-Whether the High Court could decide writ petitions on affi-·
davits-Whether the High Court should call all the deponents for cross-examination-Difiertnce between a motion of no confidence and ce11SUre motion.
A vote of no confidence was moved by respondent no. 1 against the appellant
who was the elected President of a Mllllicipality. The appellant's party claimed
that the motion was lost while the respondent no. 1 claimed that it was carried.
Since the appellant did not vacate his office respondent no. 1 filed a writ petition
under article 226 of the Constitution. Before the High Court a number of affi.
davits had been filed on behalf of the appellant and the respondent. After crossexamining six persons fdr respondent and two for the appellant the High Court
held that the appellant had ceased to be the President.
On appeal to this Court it was contended ( 1 ) that as the dispute between
the parties involved questions of fact the High Court should have referred the
parties to a separate suit, (2) that the High Court should have permitted crossexamination of all deponents, (3) that as the cross-examination of only a few of
the (feponents had beeq permitted the affidavits of others who were not cross"
examined could not be taken into consideration; ( 4) that the High Court was
wrong In relying upon the version of respondent no. l that one of the councillors
who was a supporter of the appellant had supported the motion of no confidence;
. ( 5) that the councillors had to stick to the ground specified in the notice and
:ould not depart from it in passing the motion of no confidence.
Dismissing the appeal,
HELD : (I )(a) The appellant
could not be
heard to say that the
Court should have relegated respondent no.
1 to the
remedy of a
suit. Had the respondent no. 1 been directed to seek his remedy by way
of a suit the relief secured by him would have been wholly illusory because by·
the time he would succeed. in the litigation, the term of the office of the President
would have either already expired or be about .to expire. The appellant in that
event would have continued as the President of the Municipality even though
he had ceased to enjoy the confidence of the requisite number of councillors. The
entire' concept of a democratic institution would thus have been set at naught.
[79H; 80B-C]
(b) In a petition under Art. 226 the High Court has jurisdiction to try issues:
both of fact and law. The words "as far as it can be made applicable'' occurring
in s. 141 of the Code of Civil Procedure make it clear that in applying the various
provisions of the' Code to proceedings other than those of a suit, the court must
take into account the nature of those proceedings and the relief sought.
The
object of article 226 is to provide a quick and inexpensive remedy to aggrieved
parties. Power has consequently been vested in the High Courts to issue orde~s
or writs. If the procedure of a suit had also to be adhered to in the case of wnt
petitions the entire purpose of having a quick 2nd inexpensive remedy would b.c
defeated.
A writ petiiion under article 226 is essentially different from a smt
and it would be incorrect to assimilate and incorporate the procedure of a smt
into the proceedings of a petition under article 226. The High Court is not deprived of this jurisdiction to entertain a petition under article 226 merely because
in considering the petitioner:s right of relief, questions of fact may fall to be determined.
[SOD-G]
72
SUPREME COURT REPORTS
[1975] 2 s.c.R.
Gunwant Kaur v. Bhatinda Municipality A.I.R. 1970 SC 802 relied on.
(2) It is difficult to accede to this contention. Normally writ petitions are
decided on the basis of affidavits. In some cases, however, where it is not possible for a court to arrive at a definite r.onclusion on account of there being 1affi.
davits of either side containing allegations and counter-allegations it would not
only be desirable but in the interest of justice. it is the dut;v also of the court to
summon a deponent for cross-examination in order to amve at the truth. The
fact that the court permits cross-examination of some of the deponents in a petition does not warrant the proposition that the court is bound to permit crossexamination of each and everyone of the deponents whom a party wishes to crossexamine.
[8 IC-DJ
Barium C!temicals Ltd. & A11r. v. The Cvmpan,.v Law BoGird & Ors. [1966]
Supp. S.C.R. 311 on p. 353, referred to.
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In the present case the discretion exercised by the High Court in selecting for
cross-examination those deponents whom it considered to be crucial was proper
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and judicious. No prejudice was caused to any of the parties by the procedure
adopted by the High Court.
[82A-BJ
( 3) From the fact that the High Court had permitted cross-examination of
only some deponents it did not follow that the High Court was precluded from
taking into consideration the affidavits of other deponents.
Order permitting
cross-examination of some of the deponents did not have the em~ct of obliteratin~
from record the affidavits of other deponents. There is nothing wrong in the approach of the High Court in relying upon the affidavits of dep1onents who were
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not cross-examined ··on a conspectm of the entire circumst!lllc:es of the case.
I82HJ
( 4) The submission .must be rejected. It may be a matter of mournful reflection but all the same it is the acknowledgment of a stark reality that there has
been in recent years in the case of some elected representatives so much erosion
of moral values that they feel no compunction in repeatedly changing their loyalty and shifting their allegiance from one 1mrty leader to the other.
SUch repreE
sentatives have a pliable conscience plainly because they succumb to all kinds
of pressures and yield to all kinds of temptations. They bring a touch of melodrama and the kaleidoscopic nature of the local political scene is quite often a
reflection of the sombre activities of these representatives.
Against the
backdrop of such activities there is nothing surprising or unusual in the conduct of
the Councillor.
[83H]
(5) There is no imperative requirement in the case of a motion of no confidence that it should. be passed on some patticular ground. There is nothing in
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the language of s. 36 of the Gujarat Mumcipalities Act which maltes it necessary
·
to specify a ground when passing a motion of no confidence against the President.
Though . according to the form prescribed the ground has to be mentioned, it
does not' follow that the ground must also be specified when a motion of no con·
fidence is actually passed against a President.
[86A·B]
There is a difference between a motion of no confidence and a. censure· motion.
While it is necessary in the case of 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
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or charge. A vote of censure presupposes thai the persons censured have been
guilty of some impropriety or lapse by a~'t or omission. 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. (86C]
Practice & Procedure of Parliament 2nd Edition, by Kaul and Shakdher,
p. 591 referred to.
Krishna Iyer, J :
It acts enormously to inconvenience, expense and delay to iasist on oral evidence for proof of every little relevant fact in judicial proceedings by suit or writ.
Faith in viva voce examination tested .by sevMe cross-exainination has sometimes
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B. M, PATEL v. N. K, BAROT (Khanna, /,)
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been reduced to a legal superstitution.
While screening the veracity of glib
versions on vital matters of controversy by telling cross-examination in court is
n~cessary, many facts, either formal, n,on-controvers;al or well-established otherwise, may well be proved by affidavit evidence. In a civil case reliance upon
statements made before )he police is not merely irrelevant but throws up sus,Pi·
cion because the police had no business to record any statement, as the H18h
Court has itself pointed out.
[89E·F; 90A]
CIVIL APPELLATE JURISDICTION:· Civil
Appeal No. '1707
of
1973.
'
Appeal by. Special Leave from the Judgmept and Order dated
9th October 1973 of the Gujarat High Court in
Spl.
C. Appl.
No. 808 of 1973.
M, P. Amin, Piyush Amin, P. H. Parekh, S. Bhandare, . Manju
Jaitley and Bhandare Parekh & Co. for the appellant.
Respondent No. 1 appeared in person,,
Vimal Dave and Kai/ash Mehta for respondent No. 2~
R. H. Dhebar and M. N. Shroff for respondent No. 3.
The Judgment of· the Court was delivered by Khanna J. Krishna
Iyer J. gave a separate Opinion,
KHANNA, J. On a petition under article 226 of the Constitution
of India filed by Nandlal Khodidas Barot respondent
No. 1
the
Gujarat High Court issued a writ of certiorari and quashed order
dated June 9, 1973 of the Collector Mehsana, respondent No. 3,
whereby it had been held that the no
confidence
motion
against
Babubhai. Muljibhai Patel appellant as the President of Kalol Municipality had not been validly passed.
The High Court further held
that the appellant had ceased to be . President of that municipality
since May 10, 1973 al\d that since that date he was usurper of that
office.
A writ of mandamus· was also issued directinl! the apoellant
to refrain from functioning as the President of the Kaloi Municipality.
Direction was further issued to the Collector to hold fresh elections
to the post of the President of Kaloi Municipality.
The appellant
has filed this appeal by special leave against the above judgment of
the Gujarat High Court.
Kaloi Municipality in district Mehsana has 25 councillors.
The
appellant was elected President of the said municipality with effect
from November 1, 1970. The term of the President is for a period
of five years.
On November 1, 1972 resoondent No. 1 moved a
motion of no confidence against the appellant.
Sixteen councillors
belonging to the group of respondent No. 1 voted for the motion and
two councillors belonging to the group of the llppellant voted against
it.
The Vice President of the municipalitv who was in the chair
declared that the no confidence motion had failed for want of two-
.thirds maiority of the total number of councillors. In
this
view
17 councillors out of 25 constituted the requisite two-thirds majority
74
SUPREME COURT REPORTS
[1975] 2 s.c.a.
contemplated by section 36 of the Gujarat Municipalities Act, 1963
(Gujarat Act No. 34 of 1964) which reads as under:
"36. Motion of no confidence. ( 1) Any councillor of a
· municipality who intends to move a motion of no confi.
dence against its president or vicei-president may give a
notice thereof, in such form as may be presc.ribed by the
State Government, to the munic~pality. If the
notice
is
supported by not less than one. thrrd of the total number of
the then councillors of the municipality, the motion may be
moved.
( 2) If the motion is carried by a majority of not less
than two thirds of the total number of the then councillors
of the municipality, the president or, as the case may be,
the vic()-presideilt shall cease to hold offi.ce after a period of.
three days from the date on which the motion is carried un·
less he has earlier resigned; and thereupon the• offi.ce held
by him shall be declared to be vacant.
(3) Notwithstanding anything contained in this Act or
the rules made thereunder, the president, or as the case may
be, the vice-president shall not preside over a meeting in
which a motion of np confidence against him is discussed;
but he shall have the right to speak in or othe:rwise take
part in the proceedings of such meeting (including the right
to vote)."
A writ petition was then filed by respondent No. 1 in the Gujarat
High Court to challenge the above ruling. A Division l3ench of the
High Cqurt after referring to section 36 of the Act: held
as per
;udgment dated April 2, 1973 that a motion of no confidence could
be said to have been carried in case of a municipality consisting of
25 councillors if at least 17 councillors voted for such a motion.
'
On April 21, 1973 a requisition signed by 16 councillors, including respondent No. 1, was sent to the President Kaloi Municipality
for convening a special general meeting of the municipality to consider a motion of no confidence against the appellant as the President
of that municipality on the following ground :
"Your act of writing false and concocted
proceedings
of the meeting dated 27-3~73 amounts to the crime of forgery and is highly unbefitting your status as President of the
Municipality.''
In accordance with the above rr..quisition, a meeting of the Kaloi
Municipality was convened for May 6, 1973 at 6 p.m. There are
conflicting versions of what transpired in that meeting.
According
to the appellant, 13 councillors were present in that meeting. One
of them was the appellant and the other was Chandulal Chhotatal
Bar'ot, Vice President of the municipality, who also belongs to the
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B. M. PATBL V. N. K. BAROT (Khanna,/,)
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group of the appellant.
E1even others belonging to the opposite
group were present in that meeting. As the meeting .was to consider
a motiOn of no confidence against the President, Chandulal Chhotalal
·Barot Vice President presided over the meeting.
The Vice President
in the course of his ruling obsel'Ved that the ground which had been
given in support of the ·motion of oo confidence was fabricated, false
and without truth. It was further observed in that . ruling :
"I, therefore, rule out the cause contained in this motion
and declare that they are not relevant to the present motion.
However, I place this for voting without there being existlence of any cause."
After reading out the ruling, the Vice President recorded a note in
respect of the minutes of that meeting and the
same
reads
as
under:
"The aforesaid ruling was read over in the meeting and
in taking votes on the motion without the aforesaid point,
no body showed hand in favour of the motion and ther,e
were two votes against the motion, viz., (1) Shri B. M.
Patel and (2) C. C. Barot. · As there were not legally
sufficient number of votes, i.e., 17' votes in favour of the
motion, the said no confidence motion is not passed and is
declared to have been rejected.
Dated 6-5-1973 time 6.15 p.m.
On today's business of the meeting being over as above,
the meeting is dissolved and having declared accordingly in
the Board, the members dispersed.
Date : 6-5-1973
Time: 6.15 p.m.
&!/- Barot Chandulal
Chhotalal, Vice-President,
Kaloi Municipality."
As against the above version, according to respondent No.
1, 19
oouncillors were. present in that meeting. They included the appellant,
Vice President Barot and two councillors Kantilal Chhaganlal Shah
and Vithalbhai Somabhai Patel, to whom reference would be made
hereafter. What transpired in that meeting according· to resp6ndeilt
No. 1 was given in the ncrte of councillor N.S. Parmar who was alleged
to have presided over the meeting after the walk out of the appellant
and the Vice President. The note of N. S. Parmar reads as under :
"Today a Special General Meeting was called to discuss
a motion of oo confidence against the President Shri B. M.
Patel. As the no confidence mcition was to · be ·discussed
against the President Shri B. M. Patel, the Vice President,
Shri C. C. Barot had presided over the meeting. He (the·
76
SUPRf!Mll COVllT RF.PORTS
(1975) 2 s.c.R.
Vice-President) directed the Chief Officer Shri R. D. Barot
as well as the Secretary Shri Thakkar not to write the proceedings of today's meeting in the proceeding book.
'I shall make a note in the rough sheet myself'.
The member raised a. protest against this and the prc¢est
having become severe and there being circumstar1ces enabling
the meeting to pass a motion of no confidence as per the
required legal two-thirds majority, by the Chairman, Shri
C. C. BQfot, and the President Shri B. M. Patel have walked
out of the Council Hall. · The other remaining members are
present. The chairman of tcr.lay's meeting Shri C. C. Barot
has not taken on hand the motion of no confi.df1nce for discussion in today's meeting. He has also not taken votes c[
the members as per law on the motion. There being a position of the motion of no confidence being carried by the
required legal majority, I propose the name of Shri Narayanbhai Sadabhai Parmar to preside over the meeting and to go
ahead with the business of the meeting,
Proposed by Girish M. Bhatt
and
Seconded by Shah Rameshchandra Ramanlal.
The above motion being supported by unanimously 17
members. I preside over today's meeting and take on hand
the business cl the agenda.
Sd.
N .. S. PARMAR,
Presiding Authority,
KALOL MUNICIPALITY."
Later on May 6, 1973 Vice President Barot sent a telegram to the
Collector giving his version of the meeting. Report was also sent on
the sanie day, i.e. May 6, 1973 by R. D. Barot, Chief Officer Kalol
Municipality to the <'...ollector stating that a rescdution had been passed
against the appellant' as President of the municipality. It was stated
that a vacancy in the office of the President of the municipality had
arisen and election to that office be held.
The appellant as the President of Kaloi Municipality convened a
meeting of the municipality for May 18, 1973. A day before that co
May 17, 1973 respondent No. 1 filed the present petition under article
226 o'f the Constitution in the Gujarat High Court praying for the issue
of a writ of quo warranto fot ousting the appellant from the· office of
the President of the Kalo! Municipality and for declaring that the said
office had fallen vacant in view of the motion of no confidence having
been passed on May 6, 1973. P:rayer was alsc made that the appellant be directed not to preside over the meeting fixed for May 18,
1973.
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· Durin$ the pcndency of the petition before the High Court, the
Collectot. of Mebsana to whom confilcting versions c:« the proceedlnga
of tho meeting of May 6, 1973 Jiad been sent held an Inquiry and, as
per order dated Juno 9, 1973, came to the conclusion that Councillor
Vithalbhai Somabhai Patel was nci present in the mooting held on
May 6, 1973. Reliance iD this ·connection was placed upon the aflida.
vit filed by Patel that he was not present iD that meeting. The Collec·
tor also took into account the fact that the signatures of the 17 councillors who were alleged tel be present in that meeting had not been obtained. It was further observed that after the meeting presided over
by the Vice President had terminated, no meeting could be legally held
under the chairmanship of N. S. Parmar. The concluding part of the
order of the Collector reads as under :
.
. "In view of what is discussed above I come tci the conclusion that the alleged no confidence motion against the
President Shri B. M. Patel has not been validly passed. The
very validity of the meeting held under the chairmanship of
Shri N. S. Parmar is doubtful and it is beyond doubt that
Shri v. S. Patel did not attend and vote fctr no confidence
·motion and thus the alleged, motion was not supported and .
voted by·more than 2/3rd of the total number of councillors
of Kalcl Municipality, the office of the President has not,
therefore, fallen vacant and hence no action requires to be
taken on communication of Shri R. D. Barot."
After the Collector had made the above order, the writ petition filed
bv res1><>ndent No. 1 was amended so as. to include also a prayer for
the quashing of the above order .
. The above writ petition was resisted by the appellant. During the
pendency of the writ petition, a number of affidavits were filed on be·
half of respondent No. 1 as well as on behalf of the appellant. The
number of persctns who filed affidavits on behalf of the appellant has
been stated to· be 27 and of those who 'did so on behalf of respondent
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No. 1 to be 40. The affidavits filed on behalf of respondent No. l
included those cif 16 councillors of Kaloi Municipality, while those
filed on behalf of the appellant included those of nine councillors
Respondent No. 1 also filed the affidavit of Babubhai Dahyabblb
Khamar, local correspondent of Gujarat Samachar, a daily of Ahmedabad. Kbamar, accciding to respondent No. 1, was also present in that
meeting. On September 19, 1973 the learned Judges o'f the High
G
Court passed an interlocutory order for the production of six persons
who had filed affidavits ollj behalf of respondent No. 1 and two persc.ns
who had filed affidavits on behalf of the appellant for cross-examination. The material part of that order reads as Under :
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"We have heard this petition which runs into abcut 700
pages. We have ooticed from the affidavits on record that
there are sharp divisions among5t the councillors of the Kaloi
Municipality, amongst the citizens of Kalol, amongst the
em~ees of the IC.Biol Municipality and even amongst the
SUPREME COIJRl' REPORTS
[1975] 2 s.c.R.
press reporters.
In order therefore that the situation may
be cleared and more elucidation of the problem with which
we are concerned may be had on record it is necessary that
some of the principal deponents. who have made affidavits
in this case on eithe.r side shc~lld be cross-examined by the
opposite party. (1) Husseinmiya Hasammiya Sayed,
(2)
Revabhai Lalabhai Parmar, (3) Babula! Somchand Shah,
( 4) Shantiben Ramchandra Barot, ( 5) Kantilal Cbhaganlal
Shah and (6) Babubhai Dahyabhai Khamar have made affidavits in favour of the petitioner. The first five persons are
the councillors of the Kaloi Municipality who, according to
the petiticl!ler, were present at the meeting of the Municipality
held on 6th May 1973 when motion of the Municipality
against the Chairman respondent No. 1 was moved. According to the petitioner, they had voted for the 110 confi.-
dence motion. Acccl!'ding to the respondent No. 1, they were
absent and, therefore, they could not vote for 'the :oo confi.-
dence motion. It is, therefore, necessary to · subjec:t those
five witnesses to cross-examinaticl!l by the respondent No. 1.
The sixth person Babubbai Dahyabhai Khamar, the local
correspondent of 'Gujarat Samachar' daily of Abmedabad,
claims in his affidavit to have entered tlie Council Hall of the
Kaloi Municipality and to have watched the proceedings.
He is an· independent man.
Affidavits have been made on
behalf of the respmdent No. 1 to show that he was not
allowed by the police to enter the Municipal Hall and to
watch the proceedings. If he had really watched the proceedings of the meeting of the Kaloi Municipality on 6th
May 1973, his evidence would go a long way in helping us
to decide the issue before us. It is, therefcl!'e, necessairy that
he should be subjected to cross-examination by the respond(:nt No. 1. We, therefore, direct that the petitioner shall
produce the aforesaid six persons before this Court at 11
O'clc1:k on 20-9-1973 for cross-examination by the respondent No. 1.
It is the case of the petitioner that Vithalbhai Somabhai
Patel, a councillor of Kaloi Municipality, was present at the
said meeting of the Kaloi Municipality and had voted for the
no confi.dence motion.
Vithalbhai Somabhai Patel denies
that fact and also denies his presence at that meetin,g altogether.
Chandulal Chhotalal Barot, Vice-Chairman of the Kalol
Municipality had presided over the aforesaid meeting of the
Kaloi Municipality and, according to him, nc1
confi.dence
molion was not canied because two votes were cast ar,afust
it and none had voted in its favour.
He is a material witness. He has made affidavit in favour of the respondent
No. 1. Interests of justice require that Vithalbhai Scanabhai
Patel and Chandulal Chhotalal Barot who have made aJfidavits in favour of the respondent No. 1 should be offered by
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the respondent No. 1 for cross-examination by the petiticlner.
We, therefore, direct that the respondent No. 1 shall produce
these witnesses at 11 O'clock on 20th September, 1973, for
being cross-examined by the petitioner."
As mentioned earlier, the petition filed by respcmdent No. 1 was ultimately accepted by the High Court. The High Court in the course of
its judgment first went into the question whether the. Collector had
jurisdiction to hold the inquiry to find out whether the no confidence
motion had been carried against the appellant and whether vacancy in
the post of the President of the Kaloi Municipality had arisen. It was
held that the Collector had no. jurisdiction tC4 make such inquiry and
record the impugned order. Order dated June 9, 1973 was, therefore,
held to be void and liable to be quashed. The High Court then went
into the question whether the order of the CollectQI' was void on the
ground that it had been made in violation of the principles of natural
justice. The finding of the High Court in this respect was that there
was not even a semblance of natural justice in the-inquiry ,which had
been conducted-by the Collectclr and the same was vitiated by flagrant
breach of all principles of natural justice as the interested persons had
not been heard. The High Court then considered the material which
had been brought on the file, including the evidence of deponents who
had been cross-examined, and came to the conclusim that 17 councillors had voted for the no confidence motion against the appellant in
the meeting lleld on May 6, 1973. In the result the writ petition was
accepted and. directions were given as mentioned above ..
It may be mentioned that this Cdurt initially stayed the operation
of the order of ilie High Court pending notice of motion. Subsequently, as per order dated November 19, 1973 the interim stay order
was vacated. It was, however, made clear that fresh election to tlte
office elf the President of the municipality would be held subject to the
result of this appeal. A meeting was thereafter held and respondent
No. 1 was elected President of the municipality. At present respondent No. 1 is acting as the President of the municipality subject to the
result o'f this appeal.
On behalf of the appellant his learned counsel, Mr. Anlin, has at
the outset contended that as the dispute between the parties in .this
case involved questions C(f fact, the High Court should not have entertained the writ petition filed by respondent No. 1 but should have
referred the parties to a separate suit. This contention, in our opinion, is not well founded. No plea was admittedly taken in the return
filed on behalf elf the appellant in reply to the writ petition that res·
. pondent No. 1 should be directed to seek his remedy by means of a
suit because of disputed questions of fact. In. the absence o'f such a
plea, the appellant, in our opinion, cannot be heard to say that the
High Court shciuld have relegated respondent No. 1 to the remedy of
a ~uit. Apart from that we find that the term of the appellant as· the
President of the municipality would have eXPired in 1975. The trial
of a suit, in the very nature of thinJ?S; would have taken considerable
time. Appeal and second appeal would have also been filed by the
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unsuccessful party in the case, Had respondent No. 1 been directed
·to seek his remedy by way of a suit, the relief secured by respc111dent
No. 1 even if he had sucilceded in the suit would have been wholly
ill.usory because 1'y the time respondent No. 1 would succeed in the
litigation, the term of the office of the President would have either already expired or be about tel expire. The appellant in that event
would have oontinued as the President of the municipality even though
he had ceased to enjoy the confidence of the requisite number of
councillors and they had passed a motion of net confidence against
him. The entire concept of a democratic institution would thus have
been set at naught. We agree with the observations of the High Court
that the purpose underlying the petition wc1Uld have been completely
defeated in case respondent No. 1 had been relegated to the ordinary
remedy of a suit and that such remedy was neither adequate nor
efficacious.
It is not necessary for this case to express an opinion on the point
as whether the varic1Us provisions of the Code of Civil Procedure apply
to petitions under article iz6 of the ConstitutioJJ.. Section 141 of the
Code, to which reference has been made, makes it clear that the prov~ions of the Code in regard to suits shall be followed in all prcr:eedings in any court of civil jurisdiction as far as it can be made applicable. The words "as far as it can be made applicable" make it clear
that, in applying the various provisions of the Code to prciceedings
other than those of a suit, the court must take into account the nature
of those proceedings and the relief sought. The ®ject of article 226
is to provide a quick and inexpensive remedy to aggrieved parties.
Power has consequently been vested in the High Courts to issue to
any person or authority, including in appropriate cases any gcr:ern·
ment, within the jurisdiction of the High Court, orders: or writs, in-
. eluding writs in the nature of habeas corpus, mandamus, prohibition,
quo warranto and certiorari. It is plain that if the prctcedure of a
suit had also to be adhered to in the case of writ petitions, the entire
purpose of having a quick and inexpensive remedy would be defeated.
A writ petition under article 226, it needs to be emphasised, is essentially different from a suit and it would be incorrect tc1 assimilate and
incorporate the procedure of a suit into the proceeding!1 of a petition
under article 226. The High Court is not deprived of its jurisdiction
to entertain a petitic11 under article 226 merely because in considering
the petitioner's right of relief, questions of fact may fall to be determined. In a petition under article 226 the High Court has jurisdiction
to try issues both of fact and law. Exercise of the jurisdiction is no
doubt discreticnary, but the discretion must be exercised on sound
jud. icial principles. When the petition raises complex questions of
fact, which may for their determination require oral evidence to be
taken, and on that account the High Court is of the view that the
dispute should not appropriately be tried in a writ petiticn, the High
Court may decline to try a petition (see Gunwant Kaw· v. Bhatinda
Municipality( 1). If, h:>wever, on consideration of the nature of the
controversy, the High Court decides, as in the present case, that it
(1) A.LR. 1970 S. C. 802.
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~ould gc1 into a disputed question of-fact and the discretion exercised
by the High Court appears to be sound and in conformity with judi· ·
clal principles, this Court would not interfere in appeal with the order
madt by the High Court in this respect.
It bas next been argued by Mr, Amin that as an order was made
B · by. the High Court permitting cross-examination of same of the persons
who. had filed affid,avits in the proceedings before it, the High Court
should not have restricted the right of cross-examination to only eight
of the persqns mentioned in its order dated September 19, 1973 b.ut
should have permitted cross-examination of all such deponents whom
any party wanted to cross-examine. We are unable to accede to this
. contention. Normally writ petitions ai;e decided on the basis of affi.da-
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vits, In some cases, however, where it is not possible for the court to
arrive at a definite conclusion on account c€ there being affidavits of
either side containing allegations and counter-allegations, it would not
only be desirable but in the interest of justiee the duty also of the
court to summon a deponent for cros!\-examination in order to arrive
at the truth (see observations of Shelat J. in Barium Chemica!s Ltd.
& Anr. v. The Campany Law Board & Ors.( 1).' The fact that the
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court permits cross-examination of some of the deponents in a writ
petition does nett warrant the proposition that the court is bouud to
permit cross-examination of each and every one of the deponents whom
a party wishes to cross-examine. In a case like the present where as
many as 40 persons filed affidavits in support of. one party and 27
P,Crsons filed affidavits in suppcrt of the opposite party, the High Court,
in our opinion, was well justified in the exercise of its .discretion in
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selecting such persons whom it considered to be really import:mt and
crucial for the purpose of cross-examination. The effect of permi\ting
, .eroos-examination was not that the High Court was divested o[ all discretion and control in the matter and was bound to call for crossexamination each and every depi:>nent who was named by eith~r party.
We have reproduced above the material part of ctrder dated September 19, 1973 and it would appear .therefrom that the High Court
F
selected for cross-examination five of those councillors who, according
tct respondent No. 1, were present in the meeting wherein the motion
of no confidence was alleged to have been passed but who, according to the appellant were not present in that mee.tinl!·
These five
councillors had filed affidavits in support of the case of respondent
No. 1. ·In addition tc1 these, five councillors, the High Court selected
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Babubhai Dahyabhai Khamar, local correspondent of Guiarat Sama.
char, who claitned to have been present in the Council Hall at the
· \ime of the above meeting and who sent a report about the proceedings of that meeting tc1 the Gujarat Samachar. From amongst the
deponents who had, filed affidavits in support oT the case of the appel·
lant, the High Court selected for cross-examination Chandulal Chhotalal Barot, Vice President of the municipality who, according to the
H · appellant, presided ewer that meeting as well as Councillor V. s. Patel,
who clai.med that he was not present in the above meeting but who,
(1) (1966] SUllP. S. C.R. 311 on p. 3S3.
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[1975] 2 s.c.R.
according to respondent No. 1, was present in that meeting and had
supported the motion of no oonfidence. Looking tei all the facts of the
case, we are of the opinion that the discretion exercised by the High
Court in selecting for cross-examination thcis~ deponents whom it oon·
sidere<Mo be crucial was proper and judicious. No prejudice, in our
opinion, was caused to any of the parties by the procedure adopted by
the.High Court. We wciuld, therefore, hold that order dated Septem-
.ber 19, 1973 made by the High Court does not suffer from any
infirmity.
Mr. Amin then submits that the deponep.ts· called for cross-examination should have been
examined-in-chief and thereafter crossexamined. The production of those witnesses simply for cross-examination was not warranted by law. In this respect we find that prayer
which was made by the appellant in application dated September 17,
1973 was as under :
"to order the opponent No. 1 to offer for cross.-examina·
tion Kantilal Chhaganlal Shah, Lilavatiben Kantilal Shah,
Mahmadbhai Badarbhai Chauhan and Naranbhai Sadabhai
Parmar and Nusenmiya Hasanmiya Saiyad who have sworn
affidavits in ·support of the petitioner or in the alternative
to issue summons fo them to attend this Hon'ble ·Court for
being cross-examined on behalf of the petitioner;"
It would appear from the above that all that the appellant himself
prayed in. his application was that the deponents mentioned by him
should be offered for cross-examination and not that ·those witnesses
should be examined-in-chief
and thereafter cross-examined.
No
grievance _could, theref()re, have been made l>Y the appellant if the
deponents had not been exarilin,ed-in-ehief but had been simply crossexamined. As things however are we find that when the deponents
concerned were produced in court, they were examined-in-chief and
thereafter there was cross-examination. In the course of their exami~
nation--UH:hief the deponents stated about their having sworn their
affidavits and about the correctness of the contents of those affidavits.
1'.t might in _the circumstances have appeared to be unnecessary duplic:ati<>o to ask those deponent~ to repeat what had been stated by them
in their affidavits.
We are also not impressed by the argument of Mr. Amin that as
cross-examination of only 8 deponents had been permitted, the affidavits of others who were not cross-examined could n.ot be taken into
consideration. The High Court ·permitted cross-examination of such.
of _the deponents in respect of whom it came to the conclusion that
their cross-examination was essential for arriving at the truth of the
matter. It· did not, however,. follow from that that the High Court
was precluded from taking into consideration the affidavits of other
deponents.
Order permitting cross-examination of some of the deponents did- not have the effect of obliterating from record the affidavits ef other deponents and we find nothing wrong in the approach
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of the High Court in relying upon the affidavi~ of deponents who
were not cross-examined 11. on conspectus' of th~ entir~ circumstances
of the case it found the averments in those affidavits to be true.
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Mr. Amin has next challenged th~ correctness of the finding of
the High Court that 17 councillors had supported the motion of no
confidence. It is submitted that the version. of he appellant regarding
what transpired in the meeting of May 6, 1973 is correct. The High
Court, according to the learned counsel, was in error in relying upon
the version of r~spondent No. 1.
In particular, Mr. Amin submits
that V. S. Patel councillor . was not present in that me~ting. The
presence of Councillor Kantilal Chhaganlal Shah in the meeting has
. also been questioned.
In this respect we find that the High Court
c · has relied upon the affidavits of 16 councillors who in the course of
their affidavits stated that 17 councillors including those councillors
. themselves had voted in the meeting held on May 6, 1973 in support
of the motion of no confidence. Out of those 16 councillors, 15 were
admittedly in Kaloi on that day.
They having signed the. motion
of no confidence, there was, in the opinion of the High Court, no
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reason why they .should not be present in that meeting. As regards
the presence of Councillor Kantilal Chhaganlal Shah, the High Court
relied upon his affid_avit wherein he stated that he was present in the
meeting and had voted in support of the motion of no confidence
and found that his deposition had not been shaken in cross-examination. Regarding Councillor V. S. Patel about whom the case of .respondent No. 1 was that he had supported the motion of no confidence
while that of the appellant was . that he was not present in the meeting,
the High Court observed that the material on record pointed to the
·conclusion that he had supported the motion of no confidence. The
High Court in this context relied upon the version given by Chi.ef
Officer R.D. Barot, who was admittedly present in that meeting,
as
well as the statement of Babula! Dahyabhai Khamar, press correspondent.
After having heard Mr. Amin at considerable length, we find
no sufficient ground to interfere with the appraisement of the depositions and .other material on record by the High Court.
Mr. Amin, however, submits that Councillor V. S. Patel had been
supporting the appellant in the past. Patel also filed on May 8, 1973
an affidavit in support of the appellant in the course of which he
denied that he was present in the above meeting or that he had support~ the motion of no confidence. It is urged that as V. S.