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CASE NO.: Appeal (civil)  4056 of 2006

PETITIONER: Jayrajbhai Jayantibhai Patel

RESPONDENT: Anilbhai Jayantibhai Patel and Ors.

DATE OF JUDGMENT: 11/09/2006

BENCH: K.G. BALAKRISHNAN & D.K. JAIN

JUDGMENT: J U D G M E N T [Arising out of S.L.P.(Civil) No.4663 of 2006)

D.K. JAIN, J.:

       Leave granted. 2.      The Appellant, arrayed as the first Respondent in  three writ petitions (Special Civil Applications No. 22379,  22385 and 22391 of 2005 with Civil Applications No.  12966 and 12967 of 2005), questions the legality of a  common judgment and order dated 23rd February, 2006  rendered by a Division Bench of the Gujarat High Court.   By the impugned Judgment, election of the Appellant as  President of Anand Municipality has been set aside and  Respondent No. 1, namely, Vijaybhai Haribhai Patel has  been declared as the elected President of the said  Municipality. 3.      General elections to the office of the councillors to  constitute Anand Municipality in the State of Gujarat  were held on 25th October, 2005.  Out of total 42  councillors, 19 were elected as candidates sponsored by  Bhartiya Janta Party (for short "the B.J.P") and the other  23 candidates were elected as independent candidates.   On 29th October, 2005, the Collector of Anand District  issued a notice in terms of Section 32 of the Gujarat  Municipalities Act, 1963 (hereinafter referred to as "the  Act") read with Rules 3 and 4 of the Gujarat  Municipalities (President and Vice-President) Election  Rules, 1964 (hereinafter referred to as "the Election  Rules"), notifying the programme for election to the posts  of President and Vice-President of the said Municipality  on 8th November, 2005 at 1.00 P.M. in the Municipality  Meeting Hall.  At the meeting, conducted and presided  over by the Resident Deputy Collector, nominated by the  Collector and hereafter referred to as the Presiding  Officer, out of 42 elected councillors, 38 were present.   Two B.J.P. councillors did not attend the meeting on  account of some resentment with the party leadership  and two independent councillors, namely, Anilbhai Patel  and Meenaben Gohil were unable to attend the meeting  as they had been arrested by the police at about 12.30  P.M. on the date of meeting. 4.      As per the Election Rules, after the term of the  President and Vice-President is determined at the  meeting, the Presiding Officer is required to invite  nominations for elections to the said posts.  Accordingly,  the Presiding Officer invited nominations. Two councillors

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offered their candidature for the office of President.   Election was 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 8th November, 2005 for a term of 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 8th 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 a group under  the banner of "Anand Shaher Vikas Manch" (for short  "the Vikas Manch") and had sponsored two independent  councillors for the said posts; the B.J.P. resorted to  unfair means as well as abuse of the government  machinery by getting false F.I.Rs. registered on 5th  November, 2005.  It was alleged that when the said two  councillors were about to enter the meeting hall at about  12.30 P.M. on 8th November, 2005, the police officers,  arrayed as respondents in the writ petitions, and their  staff arrested the said councillors; prevented them from  entering the meeting hall; they were not produced before  the Judicial Magistrate till 5.00 P.M. with the malafide  intention to see that they were released on bail only after  the General Meeting was over and the election results  were declared and that their absence tilted the election  results in favour of the candidates sponsored by the  B.J.P. because both the said councillors were to vote for  the candidate sponsored by the Vikas Manch and two of  the B.J.P. councillors had already aired their grievances  and had decided not to attend the meeting.  It was  averred that the police officials acted in a high handed  and arbitrary manner at the behest of two local B.J.P.  MLAs with the malafide intention to help B.J.P., the party  in power in the state, and their official candidate to win  the election. The stand of the writ petitioners was that all  these facts were brought to the notice of the Presiding  Officer, who, ignoring their protest, drew the lots and  declared the result. 6.      At this juncture we may note that subsequently the  writ petitioners were permitted to amend their petitions to  incorporate the prayer for declaring respondent No. 1 as  having been elected as the President. 7.      Taking into consideration about a dozen  circumstances, culled out in the impugned judgment, the  High Court has come to the conclusion that the  two  councillors were detained  with the sole intention of  preventing them from attending the meeting convened for  election of President and Vice-President of the  Municipality and has, thus, set aside the election of the  Appellant.  Accepting the stand of the two councillors, as  projected in the affidavits filed by them that they wanted  to vote in favour of the presidential candidate sponsored

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by the Vikas Manch, the Court has directed that the votes  of the said councillors be treated as having been cast in  favour of the first Respondent and has consequently  declared him as having been elected as President of  Anand Municipality. 8.      The appellant is, thus, before us. 9.      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.  On merits,  learned counsel would submit that being primarily in the  nature of hearsay evidence, the High Court committed a  manifest error of law in relying upon the press reports  and video recordings to return a finding that the two  councillors were detained with malafide intention to  prevent them from casting their vote, particularly when  there was neither any specific pleading or allegation nor  any evidence to the effect that either the appellant or his  party was instrumental in getting the two councillors  arrested.  Placing reliance on Quamarul Islam Vs. S.K.  Kanta and Ors. , learned counsel contended that the  High Court has lost sight of the salutary principle of the  election law that the one who brings forth the charge of  "corrupt practices" is under an obligation to discharge the  onus of proof in this behalf by leading cogent, specific,  reliable, trust-worthy and satisfactory evidence, which  was wanting in the instant case.  It is asserted that the  election of the appellant having been set aside by the  High Court on a mere probability that the two  independent councillors would have voted in favour of the  first Respondent, the impugned decision cannot be  sustained on the touchstone of the dictum of this Court  in Jamuna Prasad Mukhariya & Ors. Vs. Lachhi Ram  & Ors. .  Drawing support from the observations made  by this Court in The Regional Manager & Anr. Vs.   Pawan Kumar Dubey , and Ajit Kumar Nag Vs.  General Manager (PJ), Indian Oil Corporation Ltd.,  Haldia & Ors.  to the effect that the allegation of malice  of fact demands proof of a high degree of credibility,  learned counsel contends that in the absence of any  cogent material, the High Court committed a manifest  error of law in returning a finding of malafide against the  police officials on the basis of a bare bald allegation of  malafides.   10.     Mr. Vakil, learned senior counsel appearing for the  first Respondent, while supporting the decision of the  High Court, has submitted that in the light of the  overwhelming evidence brought on record by the writ  petitioners, the decision of the High Court cannot be  termed as perverse warranting interference by this Court.  

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Learned counsel has contended that in the light of the  depositions of the two councillors in their affidavits,  affirming that they would have voted in favour of the first  Respondent, the findings recorded by the High Court in  favour of the Respondent 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. 11.     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? 12.     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 scrutiny depends  upon host of factors, like the nature of the subject  matter, the nature of the right affected, the character of  the legal and constitutional provisions applicable etc.   While appreciating the inherent limitations in exercise of  power of judicial review, the judicial quest has been to  find and maintain a right and delicate balance between  the administrative discretion and the need to remedy  alleged unfairness in the exercise of such discretion. 13.     Having said so, we may now refer to a few decisions  wherein some broad principles of judicial review in the  field of administrative law have been evolved. 14.     In Council of Civil Service Unions Vs. Minister  for the Civil Service , Lord Diplock enunciated three  grounds upon which an administrative action is subject  to control by judicial review, viz. (i) illegality (ii)  irrationality and (iii) procedural impropriety.  While  opining that "further development on a case by case basis  may not in course of time add further grounds" he added  that principle of "proportionality" may be a possible  ground for judicial review for adoption in future.   Explaining the said three grounds, Lord Diplock said: By "illegality" he means that the decision- maker must understand correctly the law  that regulates his decision-making power  and must give effect to it, and whether he  has or has not, is a justiciable question;  by "irrationality" he means "Wednesbury  unreasonableness". It applies to a  decision which is so outrageous in its  defiance of logic or of accepted moral  standards that no sensible person who  had applied his mind to the question to  be decided, could have arrived at it; and  by "procedural impropriety" he means not  only failure to observe the basic rules of  natural justice or failure to act with  procedural fairness, but also failure to  observe procedural rules that are

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expressly laid down in the legislative  instrument by which the tribunal’s  jurisdiction is conferred, even where such  failure does not involve any denial of  natural justice.   

15.     The principle 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 Houses Ltd. Vs. Wednesbury  Corpn.  as follows: "\005the court is entitled to investigate the  action of the local authority with a view 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."

16.     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 exclusively reserved  by the suprema lex to the other organs of  the State.  Decisions and actions which  do not have adjudicative disposition may  not strictly fall for consideration before a  judicial review court."   

17.     Recently in Rameshwar Prasad & Ors. (VI) Vs.  Union of India & Anr. , wherein a proclamation issued  under Article 356 was under challenge, Arijit Pasayat, J.  observed thus:         "A person entrusted with discretion must,  so to speak, direct himself properly in  law.  He must call his attention to  matters which he is bound to consider.   He must exclude from his consideration  matters which are irrelevant to what he  has to consider.  If he does not obey those  rules he may truly be said to be acting  unreasonably.  Similarly, there may be

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something so absurd that no sensible  person could ever dream that it lay within  the powers of the authority.

It is an unwritten rule of law,  constitutional and administrative, that  whenever a decision-making function is  entrusted to be subjective satisfaction of  a statutory functionary, there is an  implicit obligation to apply his mind to  pertinent and proximate matters only,  eschewing the irrelevant and the remote."

18.     Having regard to it all, 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.   Though judicial restraint, albeit self-recognised, is the  order of the day, yet an administrative decision or action  which is based on wholly irrelevant considerations or  material; or excludes from consideration the relevant  material; or it is so absurd that no reasonable person  could have arrived at it on the given material, may be  struck down. In other words, when a Court is satisfied  that there is an abuse or misuse of power, and its  jurisdiction is invoked, it is incumbent on the Court to  intervene. It is nevertheless, trite that the scope of  judicial review is limited to the deficiency in the decision- making process and not the decision. 19.     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: "\005the reviewing court must intervene if it  "becomes aware\005 that the agency has not  really taken a ’hard look’ at the salient  problems, and has not genuinely engaged  in reasoned decision-making..."

20.     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. 21.     Chapter III of the Act contains provisions relating to

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the President, Vice-President etc.  Section 31 stipulates  that the Municipality shall be presided over by a  President, who shall be elected by the councillors from  among themselves in the manner prescribed by the rules  made by the State Government.  Section 32 deals with  the election of President and Vice-President.  Sub-section  (4) thereof provides that if in the election of the president  or the vice-president there is an equality of votes, the  result of the election shall be decided by lot to be drawn  in the presence of the Collector or the officer presiding in  such manner as the Collector or as the case may be, the  officer may determine. 22.     Election Rules lay down the procedure for election  of President and Vice-President.  Rule 10 of the said  Rules, which is of some relevance, reads as follows:- "Rule 10: Power to call meeting at  postponed date. \026 If at any meeting called for  the election of the President, the election is not  held for any reason whatsoever, the Presiding  Officer shall have power to call the meeting on  any other day."

23.     There is no denying the fact that in the light of clear  stipulation in sub-section 4 of Section 32 of the Act,  because of equality of votes the election result had to be  decided by draw of lots and this is what the Presiding  Officer did.  But, the moot question is 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 clear from the material  on record that he was made aware of the said  development.  In the light of some of the circumstances,  viz., (i) after arresting councillors Anilbhai Patel and  Meenaben Gohil at around 12.30 P.M., just half an hour  before the scheduled time for elections, the police officers  did not produce them before the Magistrate immediately,  but took them around Anand town in the police van and  produced them before the Magistrate only at about 5.00  P.M., by which time the elections were already held and  the results were also declared; (ii) no circumstance  brought on record by the police to show that it would  have been inexpedient to wait till the elections were over  before effecting arrest of Anilbhai Patel and Meenaben  Gohil.  Both the councillors are residents of Anand and  their co-accused in the respective offences were released  by the police officers themselves after 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

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Municipality. 24.     Since we feel that the principle Res ipsa Loquitur is  squarely attracted on facts in hand, it is unnecessary to  comment on the conduct of the police officials, which in  any case does not commend us.  25.     The next question which remains to be considered  is as to whether, having set aside the election of the  appellant, the High Court was justified in declaring  respondent no.1 as the President? 26.     It was strenuously urged by learned counsel for the  appellant that the first respondent having lost in the  draw of lots, the High Court had no jurisdiction to declare  him elected as President of the Municipality. The  submission is that having set aside the election, the High  Court, at best, could have directed the Collector to hold a  fresh election for the said post. 27.     There is substance in the submission of the learned  counsel.  In Tata Cellular Vs. Union of India , this  Court has observed that the judicial restraint has two  contemporary manifestations, namely, one the ambit of  judicial intervention and the other, the scope of the  Court’s ability to quash an administrative decision on its  merits.  Judicial review is not concerned with reviewing  the merits of the decision in support of which the  application for judicial review is made, but the decision- making process itself.  Unless that restriction on the  power of the Court is observed, the Court will, as opined  in Chief Constable of the North Wales Police Vs.  Evans , "under the guise of preventing the abuse of  power, be itself guilty of usurping power", which is the  case here. 28.     In the instant case, admittedly both the candidates  had got equal number of votes polled and 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.   29.     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.  In the facts  and circumstances of the case, there shall be no order as  to costs.