State of Gujarat vs H.E. The Governor of Gujarat and Others

Honourable Mr. Justice V.M. Sahai

These writ petitions alongwith Civil Applications had been nominated by the Hon''ble Acting Chief Justice by order dated 15.11.2011 to be heard by this Court in view of the difference of opinion between Hon''ble Mr. Justice Akil Kureshi and Hon''ble Ms. Justice Sonia Gokani.

In the writ petitions, the order of appointment of Shri R.A. Mehta, retired Judge of Gujarat High Court as Lokayukt by the Governor of Gujarat had been challenged.

Hon''ble Mr. Justice Akil Kureshi, in his oral judgment in para-2 of his judgment has stated that " By this judgment, we propose to dispose of two writ petitions and connected Civil Applications. Special Civil Application No. 12632 of 2011 has been filed by the State seeking a writ in the nature of quo warrantor or any other appropriate writ or direction in the matter of appointment of respondent No. 1 as Lokayukta pursuant to the impugned warrant dated 25.8.2011 issued by Her Excellency the Governor of Gujarat. Special Civil Application No. 13499 of 2011 has been filed by one Shri V.K. Saxena, President of the National Council for Civil Liberties. This petition is styled in the nature of public interest litigation. The petitioner therein also prays for a writ of quo warrantor or a writ in the nature of quo warrantor or any other appropriate order or direction to quash and set aside the appointment of Shri R.A. Mehta, Retired Judge of the Gujarat High Court as Lokayukta."

The learned Judge has further stated in para 2.1 that "Several Civil Applications have been filed seeking impleadment of parties in the petition of the State. At the outset, we have made it clear that we would not be granting such requests to be joined as additional respondents, but we assured the learned counsel for the applicants that they would be allowed to raise all contentions and such contentions will also be taken into account. They had accepted such a formula and accordingly, we have heard the counsel for such applicants also in addition to the Counsel for the State, Counsel for the private petitioner as well as the counsel for the Secretary to the Chief Justice. Respondent No. 1 has, in tune with his dignity, not participated in these proceedings."

Hon''ble Mr. Justice Akil Kureshi has dismissed the writ petition by the following order:

In the result, we do not find any reason to strike down the impugned notification. Both the petitions are, therefore, dismissed.

The other Hon''ble Judge constituting the Division Bench Ms. Sonia Gokani in her oral judgment has stated in para-1 that "I had the privilege of listening to the delivery of judgment by brother-Akil Kureshi, J. Although I am in agreement with the conclusions drawn on some of the issues during the course of this delivery, I am respectfully in disagreement with the final conclusion arrived at by him."

In paragraph-2 of the judgment, it has been stated that "Having regard to the vital issues proposed for consideration in these petitions, on all the aspects, I have chosen to adjudicate upon and give my own findings for those conclusions as well, where there is agreement."

Further, in para-3, it has been stated by Hon''ble Ms. Justice Sonia Gokani that "Challenge in the present petition, being Special Civil Application No. 12632 of 2011, is to the order of the appointment of Lokayukta for the State of Gujarat by H.E the Governor of the State u/s 3 of the Gujarat Lokayukta Act, 1986 allegedly having been made illegally and unconstitutionally, without the aid and advice of the Council of Ministers, with the prayer to issue writ in the nature of quo-warrantor against the respondent No. 1 (Designate Lokayukta) as also for issuance of such other writs as may be deemed appropriate in the circumstances for setting aside the order impugned."

The final conclusions mentioned in paragraphs 113 to 116 are extracted as under:

Final Conclusion :

Accordingly, I conclude as under:

(1) The appointment of Lokayukta, as provided u/s 3 of the Gujarat Lokayukta Act, 1986 requires to be made by the Governor, only with the aid and advice of the Council of Ministers.

(2) Consultation process, as far as the name of respondent No. 1 is concerned, between the Chief Justice and the Council of Ministers was not yet over and, therefore, it cannot be said that there was a stalemate, which necessitated any other or further act on the part of the Governor.

(3) In consultation process, primacy is always required to be given to the opinion of the Chief Justice as discussed, Governor could not have acted independently in overreaching the well laid down constitutional requirement.

(4) There are no exceptional circumstances existed as carved out by the Constitution or otherwise laid down by the decisions of the Apex Court, permitting the appointment of Lokayukta by allowing the settled principles of Parliamentary democracy to take a back seat.

(5) The office of the Lokayukta is neither a Court nor has trappings of the Court.

(6) Insistence of only one name instead of panel as made applicable for the judicial post cannot be made applicable to the post of Lokayukta. However, the proposal and recommendation shall need to be made by the Chief Justice whose opinion shall have primacy in the appointment.

(7) The post of Lokayukta for the State shall be filled up within the period of 4 months from the date of receipt of the order.

With this, the petition of the State being SCA No. 12632 of 2011 is allowed declaring the action of appointment in valid and contrary to Constitutional mandate with the consequential relief of quashing the warrant dated 25.8.2010 appointing respondent No. 1 as Lokayukta for the State of Gujarat.

In the result, Special Civil Application No. 13499 of 2011 is also required to be allowed.

In this premise, SCA No. 12632 of 2011 and SCA 13499 of 2011 and other Civil Applications stand disposed of in light of above declaration.

Since there was a difference of opinion in their judgment dated 10.10.2011 between the two Hon''ble Judges constituting the Division Bench, the Division Bench of Hon''ble Mr. Justice Akil Kureshi and Hon''ble Ms. Justice Sonia Gokani, passed an Oral order on 11.10.2011 which is reproduced as under:

In view of difference of opinion between the Members of the Bench, the matters be placed before the Hon''ble Acting Chief Justice for further necessary action.

Mr. Girish Patel, learned Senior counsel assisted by Mr. A.J. Yagnik appearing for interveners has raised a preliminary objection that this Court cannot decide this reference as the reference is incompetent and has been made in violation to Gujarat High Court Rules, 1993. He has placed reliance on Rule 186 of Gujarat High Court Rules, 1993, Section 98 of CPC and clause 36 of Letters Patent.

I have heard Mr. Kamal B. Trivedi, learned Advocate General assisted by Mr. P.K. Jani, learned Government Pleader and Ms. Sangeeta Vishen, learned Assistant Government Pleader for the petitioners; Mr. Mihir Thakore, learned Senior counsel assisted by Mr. Dhaval Vyas for the petitioners; Mr. Girish Patel, learned Senior counsel assisted by Mr. A.J. Yagnik and Mr. Mukul Sinha, learned counsel appearing for the interveners, Mr. Shalin Mehta, learned, learned counsel appearing for respondent nos. 2 and 3.

It is necessary to extract Rule 186 of Gujarat High Court Rules, 1993 and Section 98 of Civil Procedure Code.

Procedure in case of difference of opinion between Judges:- In case of difference of opinion between the Judges composing the Division Bench, the point of difference shall be decided in accordance with the procedure referred to in Section 98 of the Civil Procedure Code.

Section 98 of Civil Procedure Code.

Decision where appeal heard by two or more Judges:-(1) Where an appeal is heard by a Bench of two or more Judges, the appeal shall be decided in accordance with the opinion of such Judges or of the majority (if any)of such Judges.

(2) Where there is no such majority which8 concurs in a judgment varying or reversing the decree appealed from, such decree shall be confirmed:

Provided that where the Bench hearing the appeal is (composed of two or other even number of Judges belonging to a Court consisting of more Judges than those constituting the Bench) and the Judges composing the Bench differ in opinion or a point of law, they may state the point of law upon which they differ and the appeal shall then be heard upon the point only one or more of the other Judges, the such point shall be decided according to the opinion of the majority (if any) or the Judges who have heard the appeal including those who first heard it.

(3) Nothing in this section shall be deemed to alter or otherwise affect any provision of the letters patent of any High Court.).

In Reliance Industries Ltd. Vs. Pravinbhai Jasbhai Patel and others, the question of interpretation of Rule 186 of Gujarat High Court Rules, 1993, section 98 of CPC and clause 36 of Letters Patent was considered. The Apex Court in paragraph-13 has held as under:

13...Rule 186 is found in Chapter XVII of the Gujarat High Court Rules which deals with "Applications under Articles 226, 227 and 228 of the Constitution and rules for issue of writs and orders under the said articles". So far as proceedings under Article 226 of the Constitution of India are concerned they are original in nature. As we have seen earlier qua them Section 98(2) CPC would on its own language get out of the picture as there would be no occasion for the High Court exercising jurisdiction under Article 226, being required to confirm the decree under challenge if there is no majority which concurs in the judgment sought to be challenged before the High Court. For applicability of Section 98(2) the basic requirement is that the Division Bench of the High consisting of two or more learned Judges must be dealing with a case where there is a decision of the lower court which is placed for consideration of the Division Bench of the High Court. Consequently Rule 186 which is of general nature cannot get attracted so far as original proceedings under Article 226 are concerned but this would not render the said rule otiose as it would still require Section 98(3) CPC to be followed in such a case and that in its turn would attract clause 36 of the Letters Patent. Thus for petitioners under Article 226 of the Constitution of India Section 98(1) and Section 98(3) CPC can be pressed into service in given contingencies. That apart, Rule 186 will operate in its own vigour so far as decisions of Division Benches of the High Courts dealing with petitions under Articles 227 and 228 are concerned...

In the same paragraph, the Apex Court has further held as under:

...Section 98(3) CPC, as seen earlier clearly indicates that Section 98 will not affect the substantive provisions of the Letters Patent. Clause 36 of the Letters Patent is a substantive provision laying down the procedure to be followed in contingencies contemplated by the said clause. That being the paramount clause will necessarily apply to all the proceedings decided by the High Court...

A learned Single Judge of this Court in Kishore Kanji Patel v. State of Gujarat 1998 (3) GCD 2311, has interpreted clause 36 of Letters Patent in paragraph-7 as under:

The High Court of Gujarat is governed by letters patent which also applies to parent High Court of Bombay and on bifurcation on 1.5.1960, the said Letters Patent continued to apply to Gujarat High Court as successor High Court to the erstwhile High Court of Bombay. The Letters Patent are, therefore, the charter which would govern the proceedings of the High Court and the procedures to be followed by it for deciding the matters falling within its jurisdiction. Clause 36 of the letters patent provides procedure of reference in the event of two Judges constituting the bench have differed in opinion as to the decision to be given on any point. The Apex Court in Reliance Industries Ltd. Vs. Pravinbhai Jasbhai Patel and others, has held thus-

Charter High Courts governed by the Letters Patent which were original charter High Courts which were the successor High Courts like Gujarat High Court, would be governed by the special procedure laid down by clause 36 of Letters Patent.

Now, to understand the procedure, clause 36 deserves to be noticed, which reads as follows:

Single Judges and Divisional Courts.-And we do hereby declare that any function, which is hereby directed to be performed by the said High Court of Judicature at Bombay in the exercise of its original or appellate jurisdiction, may be performed by any Judge or any Division Court thereof, appointed or constituted for such purpose, in pursuance of section One hundred and eight of the Government of India Act, 1915, and if such Division Court is composed of two or more Judges, and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the Judges, if there shall be a majority, but if the Judges should be equally divided they shall state the point upon which they differ and the case shall then be heard upon that point by one or more of the other Judges and the point shall be decided according to the opinion of the majority of the Judges, who have heard the case including those first heard it.

On analysis of clause 36, it emerges that when the Judges constituting the Division Bench are equally divided in opinion on any point then

(i) they shall state the point upon which they differ;

(ii) the case shall then be heard upon that point by one or more of the other Judges;

(iii) the point shall be decided according to the opinion of the majority of the Judges who have heard the case including those first heard it.

Thus, the scheme of clause 36 is that, when the Judges are equally divided, they must state in clear terms the point on which they differ, instead of leaving to third Judge to search the point of difference, pose the same and then express opinion. If the learned differing Judges sit together for formulating the point of difference, it will also give opportunity to narrow down the point of difference. After the point of difference is formulated, the matter shall be assigned to another or third Judge by the Chief Justice. The third Judge shall then hear the case on that point i.e. the point stated by the differing Judges and express his opinion on that point. For convenience, "that point" can be referred as point of reference. The case, thereafter again be placed before the same Bench which heard the matter first, i.e. the Bench which differed. The Bench shall decide the case according to the opinion of the majority. Thus, the first requirement is the formulation of point of difference by the differing Judges. The third Judge can hear the case only on the point stated or formulated by the learned differing Judges. In case, the point is not stated by the differing Judges, there is no reference, as the third Judge has not been asked to hear the case on a specific point and express his opinion. Thus, in my view such a reference would be incompetent...

I am in agreement with the view taken by the learned Single Judge in Kishore Kanji Patel''s case. Counsel for the parties also agree that the reference is contrary to clause 36 of the Letters Patent. I am of the considered opinion that since the differing Judges of the Division Bench have not stated the points on which they have differed nor they have framed or formulated the questions which are to be decided by the third Judge, the Reference made by the Division Bench on 11.10.2011 is in violation of Rule 186 of Gujarat High Court Rules, 1993 and clause 36 of the Letters Patent. I uphold the preliminary objection and hold that the reference is incompetent. The Reference is accordingly returned being incompetent.

Let the matter be placed before the Hon''ble Acting Chief Justice for appropriate orders.