JUDGMENT
1. Rule. Mr. J. R. Nanavaty, learned advocate for respondents waives service of rule.
2. The no confidence motion is passed by 24 councillors of Upleta Municipality in a meeting on May 27, 1988 and that is being challenged by the petitioner, the President of Upleta Municipality, on the grounds : viz. (i) the reasons were not stated in the notice of no confidence motion and that notice was not as per the prescribed form, (ii) the meeting was called on May 17,1988, but was adjourned and subsequently in the adjourned meeting no confidence motion was passed, but the meeting could not have been legally adjourned on May 17, 1988, (iii) all the members were not informed of the adjourned meeting, (iv) the resolution is passed mala fide as the petitioner President did not accede to certain demands of the members.
2. Shri C. K. Thakker, advocate for petitioner, submits that as provided under sub-section (1) of S. 36 the Gujarat Municipalities Act, the notice of no confidence motion should be in Such a form as may be prescribed by the State Government and the State Govermnent ( has prescribed the form in which it is stated that the grounds of notice for no confidence motion should be mentioned and, therefore, the notice of no confidence motion was not in accordance with statutory provisions, bad in law and vitiates the proceedings and ultimately the no confidence motion. It is true that in the notice for no confidence motion, no grounds were mentioned, however, what is required to be considered is the effect of not mentioning the grounds in a notice. Shri Thakker, in support of his submission referred Babubhai Muljibhai Patel v. Nandlal Khodidas Barot, AIR 1974 SC 2105 in which the Supreme Court has observed (at p. 2114) :
“There is nothing in the language of S. 36 which makes it necessary to specify a ground when passing a motion of no confidence against the President. It is no doubt true that according to the form prescribed the ground for the motion of no confidence has to be mentioned in the notice of intention to move a motion of no confidence.”
It is submitted that from the observation of Supreme Court it transpires that the notice should be in the form prescribed and the grounds should be mentioned. That submission deserves to be rejected as observations of Supreme Court are only narration of the provisions of the Act and not the law laid down by the Supreme Court, nor ‘that is the ratio of the judgment. On the contrary, in that judgment, the Supreme Court enunciated the general principles relating to no confidence motion, observing that there is a difference between a motion of no confidence and a censure motion. While it is necessary in the case of a censure motion to set out the ground or charge on which it is based, a motion of no confidence need not set out a ground or charge. A vote of censure presupposes that the persons censured have been guilty of some impropriety or lapse by Actor omission and it is because of that lapse or impropriety that they are being censured. It may, therefore, become necessary to specify the impropriety or lapse while moving a vote of censure. No such consideration arises when a motion of no confidence is moved. Although a ground may be mentioned when passing a motion of no confidence, the existence of a ground is not a prerequisite of a motion of no confidence. There is no legal bar to the passing of a motion of no confidence against an authority in the absence of any charge of impropriety or lapse on the part of the authority. The essential connotation of a no confidence motion is that the party against whom such motion is passed has ceased to enjoy the confidence of the requisite majority of members.
3. In case of motion of no confide-nee, what is more important is the will of the majority of the councillors or the members who have elected the President and not the grounds on which he is sought to be removed from the office. It may be that the majority of councillors who have elected the President may lose confidence for certain reasons which they may not disclose and even then they seek to remove the President. In a democratic institution the will of the majority should be given due weight and should prevail and not the form. Considering the very basic principle of no confidence motion, the provisions in the form of notice of no confidence for giving reasons should be considered directory and not mandatory or obligatory, specifically when the section does not provide for giving such reasons. The non-compliance of it by not giving reasons for no confidence motion should not be considered fatal flaw to such a motion. When the majority has lost confidence in the President, and that is expressed- not only in the notice of no confidence motion but in the meeting and motion is carried out by requisite majority, it cannot be brushed aside only on formal or technical ground like not mentioning ground in notice. The form of notice or such technicalities should give way to the will of requisite majority. Till the mandatory provisions of Act or rules are violated or not complied or the mandatory procedure is not followed which strike at the very base of such motion, such no confidence motion carried out by requisite majority should not lightly be set aside.
4. In the instant matter, 25 out of 35 elected members remained present and 24 members tendered vote against the petitioner and no confidence motion was carried out. It should be held that the no confidence motion was legally passed. First submission of Shri Thakker, therefore, should be repelled.
5. Admittedly the special general meeting for no confidence motion was called on May 17, 1988 and in that meeting one councillor proposed for adjourning the meeting and the majority agreed and ultimately the meeting was adjourned to May 20 , 1988. On May 20, 1988 the adjourned meeting was held, but it transpires that one of the supporters of the petitioner filed a suit in the Court of Civil Judge (J.D.), Upleta and secured ad interim injunction and, therefore, required to be adjourned to May 23, 1988 and then to May 24, 1988 and after that adjourned meeting was held on May 27, 1988 and in that meeting no confidence motion was passed. Shri Thakker submits that the general meeting of the Municipality can be adjourned by the consent of the majority as provided under sub-section (11) of S. 51 Gujarat Municipalities Act, but special general meeting cannot be adjourned under said provision. It is also submitted, in the instant case, the special general meeting was called for the no confidence motion and it could not be passed on May 17, 1988 and, therefore, it should be considered lapsed and fresh notice of no confidence should have been served, and therefore, the resolution could not have been moved on May 27, 1988. That contention deserves to be repelled. Under sub-section (1) of S. 51, four ordinary general meetings are required to be called every year. Over and above the four ordinary general meetings, the President may call other ordinary general meetings during the year. As provided under sub-section (2) of S. 51, the President may whenever he thinks fit and shall upon written request of not less than one-third councillors in the case of a motion of no confidence against the President or Vice-President and one-fourth of the councillors in any other case and on a day not later than fifteen days after the presentation of such request, call a special general meeting. In case the President fails to call the special general meeting, the Vice-President shall call such meeting on a day not later than thirty days after the presentation of such request. The general meeting, with the consent of majority of councillors present, may be adjourned from time to time to a later hour on the same day or to any other day as provided in sub-section (11). Under sub-secs. (1) and (2) reference is of an ordinary general meeting and special general meeting, while in sub-see, (11) the reference is of general meeting. The general meeting, therefore, includes the ordinary general meeting and special general meeting. Merely because the special general meeting is not referred in sub-section (11), it does not necessarily mean that such a meeting cannot be adjourned and, thereafter, the business which was to be transacted in that meeting must be transacted only on that day, otherwise it would lapse. Apart from the said provisions, it is inherent in the members of the meeting who have called the meeting to adjourn it to any other convenient day for transacting the same business. This contention of the petitioner, therefore, deserves to be rejected.
6. It is contended that all the members were not informed of the adjourned meeting and it was not placed on the notice board. The factual aspect is denied by one of the councillors, Shri Jivrajbhai Naranbhai in his affidavit in which he has stated that the notice of meeting dt. May 27, 1988 was issued to all the members who were not present on May 23, 1988 and that notice was also placed on the notice board. As such, there is no reason not to accept the statement of Jivrajbhai Naranbhai. It should, therefore, be held that all the members were informed and proper procedure was followed.
7. The fourth contention that the no confidence motion was moved mala fide as the petitioner – the President of the Municipality – did not accept certain unreasonable and illegal demands by the members. Such a vague statement should not be given much credit. The allegation is too vague to be accepted. That allegation is also denied in the affidavit by Jivrajbhai Naranbhai.
8. Interim relief vacated. Special Civil Application is dismissed and rule discharged. No order as to costs.
9. Rule discharged.