ORDER
2. The petitioners have filed this petition under Article 226 of the Constitution of India praying for quashing and setting aside the impugned order dated 9-2-2009 passed by the respondent No. 1 in Petition No. 14 of 2007 as being illegal, arbitrary, unjust, unreasonable, suffering from the vices of mala fides, contrary to the provisions of the Defection Act as well as Rules framed thereunder and also violative of Article 14 of the Constitution of India. The petitioners have also prayed for the stay against the implementation, operation and execution of the impugned order dated 9-2-2009 passed by the respondent No. 1 in Petition No. 14 of 2007 and further stay against the proceedings of Petition No. 14 of 2007.
3. It is the case of the petitioners that they are elected members of Morbi Nagar Palika in the general election held in the year 2005. The Morbi Nagar Palika has 42 elected members. In the meeting held on 21-12-2005, Shri Pradipbhai H. Vala, came to be elected as the President for a term of two and half years which was to end on 20-6-2008. However, Shri Vala resigned on 14-6-2007 wherein the post of President of Nagar Palika fell vacant. The Collector issued Notification on 25-6-2007, thereby appointing Dy. Collector as authorized officer for the purpose convening meeting for appointment/election of President of Morbi Nagar Palika. The Dy. Collector, thereafter, issued notice for convening general meeting of Morbi Nagar Palika on 2-7-2007 for the purpose of holding election for the post of President of Morbi Nagar Palika. A meeting was held on 2-7-2007 under the Chairmanship of Dy. Collector, Morbi of the members of Morbi Nagar Palika to elect the President as Shri Pradipbhai Vala, past President had resigned from the post of President, Morbi Nagar Palika.
4. It is also the case of the petitioners that the respondent No. 2, who is the original complainant/applicant in Petition No. 14 of 2007 is the Member of Bhartiya Janta Party. He contested election as member of ruling party and was also elected under the symbol of Bhartiya Janta Party. The meeting as scheduled was held on 2-7-2007 under the chairmanship of Dy. Collector, Morbi. However, as per the rojkam dated 2-7-2007 prepared by the Dy. Collector, it is recorded that the respondent willingly left the meeting hall while the process of election started. The Dy. Collector - Chairman of the meeting in the minutes of the meeting dated 2-7-2007 has also in terms recorded that when he started the process of scrutiny of the nomination forms, some members including the present respondent. No. 2 walked out from the meeting without information/ permission obtained from the Chairman.
5. It is also the case of the petitioners that one Shri Arvindbhai Kalyanjibhai Loriya being part of the group representing respondent No. 2 filed the Petition No. 12 of 2007 before the respondent-authority seeking disqualification of the present petitioners. The petitioners challenged the notice issued by the respondent No. 1 before this Court and the said notice was quashed and set aside by this Court. The Division Bench of this Court in appeal did not interfere with the order and judgment of the learned Single Judge. On directions to the respondent No. 1 to take final decision on the Petition No. 12 of 2007, the respondent No. 1 rejected the petition and decided it in favour of the petitioners. It is also the case of the petitioners that after rejection of Petition No. 12 of 2007, the present respondent No. 2 filed petition being Petition No. 14 of 2007 once again against the petitioners seeking disqualification on the same grounds on which earlier petition being Petition No. 12 of 2007 was filed and was rejected by the respondent No. 1. The petitioners filed reply to the said Petition No. 14 of 2007 and the respondent No. 2 has filed rejoinder to the said reply. The petitioners and the respondent No. 2 have disputed the fact submitted by the respective parties and serious issues have arisen warranting leading of oral evidence. The respondent No. 2 has also raised certain new points in the rejoinder and application was also made by the petitioners raising contention that such new points cannot be urged. The petitioners have also stated that the respondent No. 2 has submitted afterthought statements and on altogether new story was presented before the respondent authorities. The petitioners, have, therefore, submitted before the competent authority that there was need for leading of evidence, and more particularly oral evidence so as to bring about truth in the matter. It was also urged that the right of leading evidence including cross-examination is a necessary limb of the principles of natural justice.
6. The petitioners, therefore, moved an application dated 29-1-2009 before the respondent No. 1 requesting the respondent No. 1 to permit the petitioners to lead the evidence and also direct the respondent to lead evidence considering serious question of involved touching the jurisdiction of respondent No. 1 under Section 3 of the Act. The petitioners also requested the respondent No. 1 to permit the petitioner to cross-examine the respondent No. 2 so that the truth be brought on record. The respondent No. 2 did not submit any reply to the said application. The said application was heard on 29-1-2009. The petitioners cited various judgments before the respondent No. 1 more particularly the judgment of Hon'ble Supreme Court in the case of Ravi S. Naik v. Union of India reported in : 1994 Supp. (2) SCC 641. The respondent No. 1 however, vide his order dated 9-2-2009 rejected application of the petitioners for leading cross-examination of the respondent No. 2.
7. It is this order which is under challenge in the present petition.
8. Mr. Navin Pahwa, learned Advocate appearing for the petitioners, has submitted that the impugned order passed by the respondent No. 1 is absolutely unjust, unreasonable and violative of Article 14 of the Constitution of India, and hence, the same deserves to be quashed and set aside. He has further submitted that the impugned order passed by the respondent No. 1 is completely contrary to the provision of Rule 7 of the Rules and also in breach of the settled principles of natural justice. The reasonable opportunity of being heard which is a part of the principle of natural justice including the right to lead oral evidence and the right to cross-examine. He has further submitted that the said right of the members against whom the proceedings for disqualification are initiated is unfettered right. He has further submitted that considering the nature of dispute and the issue involved in the petition before the respondent No. 1, it was all the more obligatory on the part of the respondent No. 1 to have permitted to lead oral evidence and also to permit the cross-examination. The issue between the parties is as to whether mandate as alleged is given or not. There are also issues raised as to raising of second mandate and dropping of the first mandate. There are also issues as to filing concocted documents on the record and relying upon the same by the otherwise so as to prove giving of mandate. Considering the nature of dispute and the issue involved in the matter it is necessary that the parties are allowed to lead oral evidence. According to Mr. Pahwa the respondent No. 1 has wrongly denied such vital right of the petitioners which have led the proceedings void ab initio.
9. Mr. Pahwa has further submitted that the respondent No. 1 by the impugned order has rejected the application initially on the ground that there is no specific provision for cross-examination under Rule 7(7) of the Rules though undisputedly Rule 7(7) of the Rules provide for giving reasonable opportunity of representation by the members against whom the proceedings for disqualification are initiated. It is a settled principle of law that the principle of natural justice include the right of cross-examination. The respondent No. 1, has therefore, wrongly construed the provisions contained in Rule 7(7) and held that there was no provision for cross-examination in Rule 7 of the Rules. Mr. Pahwa has further submitted that the respondent No. 7 has grossly erred in ignoring the view expressed by the Hon'ble Supreme Court in the case of Ravi S. Naik v. Union of India (supra) by observing that as compared to the said judgment and the applicable rules, there is no provision in the subject rules permitting cross-examination. He has submitted that the view taken by the respondent No. 1 is factually incorrect as there is no specific provision for cross-examination even in the rules, which were being considered by the Hon'ble Supreme Court. The right of cross-examination is inbuilt in the principles of natural justice and the authority when asked, is obliged to provide such a right.
10. Mr. Pahwa has further submitted that the proceedings of disqualification are serious repercussions, and therefore, rules are required to be construed very strictly. For this purpose, he relied on the decision of the Hon'ble Supreme Court in the case of Sadashiv H. Patil v. Vilhal D. Teke : AIR 2000 SC 3044 : 2000 (8) SCC 82. Based on this, decision he has submitted that the respondent No. 1 is obliged to give appropriate and true meaning to the provision of the Act and the rules which have such serious repercussions.
11. Mr. Pahwa has further submitted that the order passed by the respondent No. 1 is mala fide as the respondent No. 1 has rejected the application filed by the petitioners under the dictates and instructions of the District President of the ruling political party. The impugned order is also discriminatory inasmuch as the respondent No. 1 though is permitting right of cross-examination in all cases, has denied the said right in favour of the petitioners. He has, therefore, submitted that the impugned order is not only mala fide, but also suffers from vice of discrimination.
12. Mr. Pahwa in support of his submission that the impugned order passed by the respondent No. 1 is in breach of principle of natural justice which inter alia includes the right to cross-examination has relied on the decision of the Hon'ble Supreme Court in the case of Lakshman Exports Ltd. v. Collector of Central Excise reported in : 2005 (10) SCC 634, wherein it is held that despite the fact that in reply to the show-cause notice the assessee had specifically asked to be allowed to cross-examine the representatives of these two concerns to establish that the goods in question had been accounted for in their books of account and the appropriate amount of central excise duty had been paid, the Tribunal did not agree to such request. The Hon'ble Supreme Court, therefore, set aside the orders under challenge and restored the matter to the Collector for de novo hearing after ensuring that lacunae pointed out in the order of the Vice-President are met.
13. Mr. Pahwa further relied on the decision of the Hon'ble Supreme Court in the case of New India Assurance Company Ltd. v. Nusli Neville Wadia and Anr. reported in : 2008 (3) SCC 279, wherein while dealing with the issue regarding natural justice, it is held in Para 45 of the judgment that if some facts are to be proved by landlord, indisputably the occupant should get an opportunity to cross-examine. The witness who intends to prove the said fact has the right to cross-examine the witness. This may not be provided by under the statute, but it being a part of the principle of natural justice should be held to be indefeasible right.
14. Mr. Pahwa further relied on the decision of the Hon'ble Supreme Court in the case of S.C. Girotra v. United Commercial Bank (UCO Bank) and Ors. reported in : 1995 Supp (3) SCC 212, wherein it is held that the report on which reliance was placed by the disciplinary authority was a comprehensive document in which conclusions were reached against the appellant on the basis of materials including the books and records of the Bank as well as some certificates issued by officers of the Bank which constituted evidence in support of the charges levelled against the appellant. The Court further held that no opportunity was given to the appellant to cross-examine either the makers of that report or the officers who had granted such certificates which formed evidence to prove the charges which led to the order of dismissal passed by the disciplinary authority, even though, those persons were examined for the purpose of proving the documents relating to them. The Court, therefore, took the view that the grievance made by the appellant that refusal of permission to cross-examine these witnesses was denial of reasonable opportunity of defence to the appellant, is justified.
15. Mr. Pahwa further relied on the decision of the Hon'ble Supreme Court in the case of State of Madhya Pradesh v. Chintaman Sadashiva Waishampayan reported in AIR 1961 SC 1623. He further relied on the decision of the Hon'ble Supreme Court in the case of Union of India v. T.R. Varma reported in : AIR 1957 SC 882, wherein it is held that the documents which the respondent wanted in the present case were relevant and would have been of invaluable assistance to him in making his defence and cross-examining the witnesses who have evidence against him. It is further observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party, and that no materials should be relied on against him without his being given an opportunity of explaining them.
16. Mr. Pahwa in support of his submission that the impugned order passed by the respondent No. 1 is in violation of principle of natural justice, and hence, it is a nullity, has relied upon the following judgments.
(i) In the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors. reported in : 1998 (8) SCC 1, it is held that under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order of proceedings are wholly without jurisdiction or the vires of an Act is challenged. This principle was reiterated by the Hon'ble Supreme Court in the case of Committee of Management v. Vice Chancellor Civil Appeal No. 7319 of 2008 dated 16-12-2008
(ii) In the case of M.M. Agraval v. State of Gujarat Special Civil Application No. 22343 of 2006 and other connected matters decided on 18-12-2006, this Court has held that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies alike to judicial Tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. While quoting a passage from the decision of the Hon'ble Supreme Court in the case of Sayeedur Rehman v. State of Bihar reported in : AIR 1973 SC 239, it is observed that this unwritten right of hearing is fundamental to a just rival contestants. This right has its roots in the notion of fair procedure. It draws the side of the case before coming to its decision for nothing is more likely to conduce to just and right decision than the practice of giving hearing to the affected parties. The omission of express requirement of fair hearing in the rules or other source of power claimed for reconsidering an order is supplied by the rule of justice which is considered as an integral part of our judicial process which also governs quasi-judicial authorities when deciding controversial points affecting rights of parties.
(iii) In the case of Roop Singh Negi v. Punjab National Bank reported in : 2009 (2) SCC 570, it is held that the purported evidence collected during investigation by the Investigating Officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof.
(iv) In the case of A.V. Papayya Sastry and Ors. v. Govt. of A.P. and Ors. reported in : 2007 (4) SCC 221, it is held that a judgment, decree or order obtained by playing fraud on the Court, Tribunal or authority is a nullity and non est in the eye of law. Such a judgment, decree or order, by the first Court or by the final Court, has to be treated as nullity by every Court, superior or inferior. It can be challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceedings.
(v) In the case of Jagdishbhai Thakore and Anr. v. Chandrikaben Chudasma and Ors. reported in 2007 (4) GLR 2998, this Court has held, after referring to the judgment of the Hon'ble Supreme Court in the case of Kihota Mollohon v. Zachilhu and Ors. reported in : AIR 1993 SC 412 that the scope of judicial review under Articles 136, 226 and 227 of the Constitution in respect of an order passed by the Speaker/Chairman under Paragraph 6, would be confined to jurisdictional errors only viz. infirmities based on violation of compliance with rules of natural justice and perversity. In view of the limited scope of judicial review that is available on account of the finality clause in Paragraph 6 and also having regard to the constitutional intendment and the status of the repository of the adjudicatory power i.e. Speaker/Chairman, judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman and a quia timet action would not be permissible. Nor would interference be permissible at an interlocutory stage of the proceedings. Exception will, however, have to be made in respect of cases where disqualification or suspension is imposed during the pendency of the proceedings and such disqualification or suspension is likely to have grave, immediate and irreversible repercussions and consequences.
17. Mr. Pahwa has further submitted that even at the interlocutor stage the High Court while exercising its writ jurisdiction under Articles 226 and 227 of the Constitution of India can interfere in the matter so as to prevent the abuse of process of law and to prevent the miscarriage of justice. In support of this submission, he relied on the decision of this Court in the case of Devabhai Parbatbhai Avadia and Ors. v. P.D. Waghela, Competent Authority and Ors. reported in : 2007 (3) GLH 410 : 2008 (1) GLR 158 wherein this Court has quashed and set aside the show-cause notice wherein the petition was not verified in accordance with the provisions of Order 6, Rule 15 of the C.P.C. and the annexures thereto are not at all signed and verified. This requirement is mandatory, and therefore, non-compliance thereof renders the petition liable to be dismissed. The Court took the view that there is complete non-compliance of mandatory provisions of sub-rules (5) and (6) of Rule 6. When there is non-compliance, the Designated Officer ought to have dismissed it without issuing notice to the petitioners; but that has not been done and notice has been issued. When the petition of respondent Nos. 3 to 6 is not maintainable at all in law, the Court, therefore, held that it would not necessary for the petitioner to response the show-cause notice issued in pursuance of such petition and the petitioners are justified in approaching this Court seeking relief under Article 226 of the Constitution of India. The Court, therefore, quashed the petition filed before the Competent Authority and notice issued in pursuance of the said petition was also quashed and set aside.
18. Mr. Pahwa has further submitted that the application preferred by the respondent No. 3 before the Competent Authority duly verified and supported by the affidavit along with other affidavit proving the contents of the application is considered to be a substantive piece of evidence, and hence, the applicant's cross-examination is required. He relied on the decision of this Court in the case Devabhai Parbatbhai Avadia and Ors. v. P.D. Waghela, Competent Authority Appointed and Ors. reported in : 2007 (3) GLH 410 : 2008 (1) GLR 158 wherein it is held that the respondent No. 1 is supposed to give his decision within a period of two months on the Reference application made under Section 3 of the Act. It provides that the endeavour to determine the question as to whether the Member has incurred disqualification or not, shall have to be made within two months from the date on which the Reference application is made under Section 3 of the Act read with Rule 6 of the Rules. The petitioners are facing proceedings on Reference application preferred by the respondent No. 3 that the petitioners have incurred disqualification as per the scheme of Section 3(1)(b) of the Act. The Court, therefore, took the view that it is settled as to under what circumstances the finding of quasi-judicial authority or administrative authority requires to be scrutinized under judicial review. The decision of the respondent No. 1 can be challenged on very limited grounds viz. (1) violation of constitutional or statutory mandate; (2) mala fides, (3) non-compliance of Rules with natural justice, and (4) perversity. It is also settled that mere irregularity in following procedure can have no bearing on the decision.
19. Based on the aforesaid legal position and factual background Mr. Pahwa has strongly urged that the impugned order passed by the respondent No. 1 is in violation of principle of natural justice as it was passed denying the right to cross-examine the respondent No. 3, and hence, it is nullity. The petition, is therefore, required to be allowed and the impugned order is required to be quashed and set aside with a direction to the respondent No. 1 to provide an opportunity of cross-examining the respondent No. 3 as well as to provide an opportunity to the petitioner to lead oral evidence before him.
20. Mr. Harshadray Dave, learned Advocate appearing for the respondent No. 3, on the other hand, has strongly opposed this petition and submitted that the impugned order passed by the respondent No. 1 is an interlocutory order, and hence, it should not be interfered with by this Court. He has further submitted that the petitioners are in habit of filing petition after petition, and thereby, they want to prolong the litigation so that the present term of the Nagar Palika will expire and they will continue to remain as Members of the Nagar Palika. He has further submitted that this Court has already decided the issue in the case of Vasudev P. Modh v. Varshaben Sanjaykumar Mali Special Civil Application No. 884 of 2009 decided on 3-2-2009, wherein after interpreting the provisions contained in Rule 7(7) this Court has observed that what is contemplated in Sub-rule (7) of Rule 7 is to give an opportunity to the Councillor or Member and also to give a personal hearing in the matter. The Rule making authority has not contemplated to make any provision for cross-examination of the complainant. Even otherwise, the complainant has not entered in the witness box and had not given any evidence on oath which requires any cross-examination. The complainant's pleadings in the complaint can be contested or controverted by filing reply to it. Hence, petitioners' application was rightly not entertained by the Designated Authority. Hence, the Court does not entertain this petition at this stage. The Court has not entertained the petition reserving the liberty to the petitioner to raise the issue as and when any final order is passed against the petitioner. He has, therefore, submitted that the petition is required to be dismissed at the very threshold.
21. Mr. Amit Patel, learned Assistant Government Pleader, appearing for the respondent-State has also adopted the arguments of Mr. Harshadray Dave and submitted that the petition deserves to be dismissed.
22. Having heard the learned Advocates appearing for the parties and having considered the submissions made by Mr. Pahwa and having applied the ratio laid down by the Courts in the above cited judgments, the Court is of the view that none of the grounds raised by Mr. Pahwa has any substance or merits so as to require this Court to show any indulgence in the impugned order passed by the learned Designated Authority denying an opportunity to cross-examine the respondent No. 3. The main argument canvassed by Mr. Pahwa is that the right to cross-examine is an integral part of the principle of natural justice and violation of the principle of natural justice would certainly confer a jurisdiction to this Court under Articles 226 and 227 of the Constitution of India to entertain the petition even at the interlocutory stage. So far as this argument is concerned, the Court is of the view that there is no absolute proposition that right to cross-examination would form part of a principle of natural justice. It always depends upon the facts and circumstances of each case. One can claim this right in a situation where the evidence is collected behind the back of person aggrieved by, and such evidence is used against such person and decision is based on such evidence. This right can also be claimed when a person has entered into a witness box. He has given his evidence on oath and yet right to cross-examination is denied to the other side. Here, in the present case, none of these circumstances is present. The respondent No. 3 has filed an application. That application is duly supported by an affidavit. All evidence, documents etc, are attached with this application. Entire set of this application as well as documents is given to the petitioners. They have filed their reply to the said application. They are also allowed to produce their own documents disputing the facts stated and averments made in such application. The respondent No. 1 has still not formed any opinion. The respondent No. 3 has also not entered into a witness box. Despite this petition, the petitioners have moved an application asking for cross-examination of the respondent No. 3. If such request was not acceded to by the respondent No. 1, it cannot be said that it is in violation of principle of natural justice, nor can it be said that the order passed by the respondent No. 1 is a nullity or it is non est at law. All the judgments relied upon by the petitioners, are therefore, not applicable to the facts of the present case. In almost all these cases, the right to cross-examination was considered to be a part of principle of natural justice, only because the parties were examined and opportunity to cross-examine those parties was not given.
23. Reliance placed by Mr. Pahwa on the earlier decision of this Court is also uncalled for as the said decision was challenged before the Division Bench and the Division Bench remanded the matter to the Designated Authority reserving liberty to the petitioners to make their submissions before him. Even another decision of this Court pertaining to this very proceeding and filed by the very petitioners before this Court also does not render any assistance to the petitioners. On the contrary, the said decision goes against the petitioners as the said petition was dismissed with cost of Rs. 5,000/-.
24. Looking to the series of litigations undertaken by the petitioners it appears that the only intention of the petitioners is to delay the proceeding. By filing the petition challenging the action taken and/or orders passed by the Competent Authority on each and every stage is nothing but to derive undue advantage by abusing the process of law. The petitioners are aware about the fact that the present term of Nagar Palika is going to expire in 2010 and if they were to succeed in their attempt to prolong this type of litigation till 2010 they would continue to remain as members of the Morbi Nagar Palika. This may be the only intention in filing the petition after petition. They are also aware about the fact that this being a Reference made to the respondent No. 1 it has to be decided within two months. If the Reference is not decided within this period, it automatically lapses.
25. It is also required to be observed here that the petitioners are branded as defectors. They were elected on the ticket of a particular political party. They have changed their side subsequently. Morally, and even legally to some extent, if the allegations against them are proved, they are not entitled to continue as members of Morbi Nagar Palika. The rule of morality requires that they should have resigned and sought the fresh mandate of the people. In any case, the persons who are not coming before the Court with clean hands or with sound moral background will have no right to claim equity or to invoke equitable jurisdiction of this Court.
26. Taking overall view of the matter and after considering the relevant rules and the decided case-law on the subject, this Court is of the view that simply because the respondent authorities have not granted opportunity to cross-examine the respondent No. 3, the order cannot be vitiated. Even otherwise, it is a discretion vested in the Competent Authority as to whether to grant such opportunity or not. If authority is of the view that such request is made only with a view to delay the proceeding or looking to the time constraint, if such a request is not acceded to, the authority is well within its right to turn down such request. In any case, this Court has no reason to interfere any such discretionary order passed by the designated authority, after considering the facts on hand in light of statutory provisions and settled legal position.
27. The petition, is therefore, dismissed.