Case Note & Summary
The dispute arose from a no confidence motion moved against the appellant, who was the elected President of Kalol Municipality, by respondent no. 1. The appellant's party claimed the motion was lost, while respondent no. 1 claimed it was carried. The Collector, respondent no. 3, by order dated June 9, 1973, held that the no confidence motion had not been validly passed. Respondent no. 1 then filed a writ petition under Article 226 of the Constitution before the Gujarat High Court, seeking a writ of certiorari to quash the Collector's order and a declaration that the appellant had ceased to be President. The High Court, after permitting cross-examination of six deponents for the respondent and two for the appellant, held that the appellant had ceased to be President from May 10, 1973, quashed the Collector's order, issued a writ of mandamus directing the appellant to refrain from functioning as President, and directed the Collector to hold fresh elections. The appellant appealed to the Supreme Court by special leave. The appellant contended that the High Court should have relegated the respondent to a suit because the dispute involved questions of fact, that cross-examination of all deponents should have been allowed, that affidavits of non-cross-examined deponents could not be considered, that the High Court erred in relying on the version that a councillor who supported the appellant had voted for the motion, and that councillors had to stick to the ground specified in the notice. The Supreme Court dismissed the appeal, holding that the High Court has jurisdiction under Article 226 to decide questions of fact and need not relegate parties to a suit, as that would make the remedy illusory. The Court held that cross-examination in writ petitions is discretionary and not mandatory for every deponent; the High Court's selection of crucial deponents was proper. The Court also held that affidavits of non-cross-examined deponents remain on record and can be considered. Regarding the councillor's change of loyalty, the Court observed that such shifts are a stark reality and not surprising. The Court distinguished between a no confidence motion and a censure motion, holding that a no confidence motion need not specify any ground under Section 36 of the Gujarat Municipalities Act. Justice Krishna Iyer, in a separate concurring opinion, emphasized that oral evidence is not required for every little fact and that reliance on police statements in civil proceedings is irrelevant and suspicious. The appeal was dismissed, affirming the High Court's order.
Headnote
A) Constitutional Law - Writ Jurisdiction under Article 226 - Scope of High Court's Power to Decide Factual Disputes - Constitution of India, 1950, Article 226; Code of Civil Procedure, 1908, Section 141 - The High Court in a writ petition has jurisdiction to try issues of both fact and law; it is not bound to relegate parties to a separate suit merely because questions of fact arise. The object of Article 226 is to provide a quick and inexpensive remedy, and applying the full procedure of a suit would defeat that purpose. Held that the High Court was justified in deciding the writ petition without directing the respondent to file a suit. (Paras Not mentioned) B) Writ Procedure - Cross-Examination of Deponents - Discretion to Permit Cross-Examination - Constitution of India, 1950, Article 226 - Normally writ petitions are decided on affidavits, but where affidavits contain conflicting allegations, the court may in its discretion permit cross-examination of some deponents. The court is not bound to allow cross-examination of every deponent a party wishes to examine. Held that the High Court's selection of crucial deponents for cross-examination was proper and judicious, causing no prejudice. (Paras Not mentioned) C) Evidence - Affidavit Evidence - Consideration of Affidavits of Non-Cross-Examined Deponents - Constitution of India, 1950, Article 226; Code of Civil Procedure, 1908, Section 141 - The fact that the High Court permitted cross-examination of only some deponents does not preclude it from considering the affidavits of other deponents. Cross-examination of some does not obliterate the affidavits of others from the record. Held that the High Court's reliance on such affidavits on a conspectus of circumstances was not erroneous. (Paras Not mentioned) D) Municipal Law - No Confidence Motion - Assessment of Councillor's Conduct - Gujarat Municipalities Act, Section 36 - In a no confidence motion dispute, the court may consider the reality that elected representatives sometimes change allegiance under pressure or temptation. Such conduct is not surprising or unusual. Held that the High Court was not wrong in relying upon the version that a councillor who was a supporter of the appellant had supported the motion. (Paras Not mentioned) E) Municipal Law - No Confidence Motion vs Censure Motion - Requirement of Specifying Ground - Gujarat Municipalities Act, Section 36 - There is a difference between a motion of no confidence and a censure motion. While a censure motion must set out the ground or charge, a no confidence motion need not specify any ground. Section 36 of the Gujarat Municipalities Act does not require that a ground be specified when passing a no confidence motion. Held that councillors are not bound to adhere to the ground mentioned in the notice, and the motion can be passed without specifying a ground. (Paras Not mentioned) F) Evidence - Police Statements in Civil Proceedings - Relevance and Reliability - Not under any Act but principle - In a civil case, reliance upon statements made before the police is not merely irrelevant but throws up suspicion because the police had no business to record any statement. Held that such reliance is improper. (Paras Not mentioned)
Issue of Consideration
Whether the High Court should have relegated the respondent to a suit instead of deciding the writ petition involving questions of fact; whether the High Court was bound to permit cross-examination of all deponents; whether affidavits of non-cross-examined deponents could be considered; whether the High Court erred in relying on the version regarding a councillor's change of loyalty; whether councillors must stick to the ground specified in the notice for a no confidence motion; and the distinction between a no confidence motion and a censure motion
Final Decision
The Supreme Court dismissed the appeal, affirming the High Court's order. The High Court's decision quashing the Collector's order, declaring the appellant ceased to be President from May 10, 1973, issuing a writ of mandamus restraining the appellant from functioning, and directing fresh elections was upheld.
Law Points
- High Court under Article 226 can decide questions of fact and law
- not bound to relegate to suit
- writ procedure is summary and not same as suit
- cross-examination of deponents in writ petitions is discretionary
- not mandatory for all
- affidavits of non-cross-examined deponents can be considered
- no confidence motion need not specify ground
- difference between no confidence motion and censure motion
- police statements in civil proceedings are irrelevant and suspicious
