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C.K. Buch, J.—The present petition is preferred by the petitioners under Article 226 of the Constitution of India inter alia praying that this Court may issue appropriate writ, order or direction quashing and setting aside the impugned order dated 14th March 2008 rendered by the respondent No. 1 in Disqualification Reference Application No. 14 of 2007. It is further prayed that this Court in exercise of powers vested in the Court under Article 226 of the Constitution of India may quash and set aside the impugned notice to show cause dated 07th January 2008 and the proceedings initiated apropos to the said notice. The said Application No. 14 of 2007 filed before the respondent No. 1 is the Reference Application filed by the respondent No. 3 under the provisions of the Gujarat Provision for Disqualification of Members of Local Authorities for Defection Act, 1986 (hereinafter referred to as ''the Act'') read with the provisions of Gujarat Provision for Disqualification of Members of Local Authorities for Defection Rules, 1987 and the Rules of the year 2007 (hereinafter referred to as ''the Rules''). It is submitted by Shri Navin Pahwa, learned counsel appearing for the petitioners that the petitioners are the Members of the Morbi Nagarpalika. The petitioners had participated in the General Board Meeting held on 02nd July 2007 and it is alleged that they had acted contrary to the mandate issued by the Party. So they have incurred disqualification as per the scheme of Section 3(1)(b) of the Act. Thereafter, one Reference Application was filed and the same was registered as Reference Application No. 12 of 2007. The petitioners decided to challenge the show cause notice dated 18th July 2007 issued by the respondent No. 1 on various grounds, more particularly on the ground that the annexures attached along with the petition were not verified as contemplated under Rule 6(5) read with Rule 6(6) of the Rules, by way of preferring Special Civil Application No. 20042 of 2007 before this Court. After hearing the parties, this Court vide judgment dated 03rd September 2007 has quashed and set aside the notice to show cause holding that the issuance of notice is bad and the respondent No. 1 ought to have dismissed the petition on the ground of non-compliance of the Rule 6(5) read with Rule 6(6) of the Rules. The said decision of the learned Single Judge rendered in the case of Devabhai Parbatbhai Avadia and others v. P.D. Waghela-Competent Authority and others, is reported in the 2007(3) GLH 410. The respondent-orig. applicant of Special Civil Application No. 20042 of 2007 preferred intra-court appeal being Letters Patent Appeal No. 1927 of 2007 before the Division Bench of this Court. The Division Bench of this Court after hearing the parties disposed of the said Letters Patent Appeal by way of an oral order dated 28th November 2007 and directed the petitioners firstly to submit to the jurisdiction of the designated authority and to file reply to the notice to show cause on the issue of maintainability and further directed the petitioners to cite decision of this Court before the competent authority. For short, the respondent No. 1 was directed to consider the reply and to dispose of the Reference Application by the end of December, 2007. It would be convenient to reproduce the relevant part of the order passed by the Division Bench of this Court, which is as under :
"xxx xxx xxx
Of course when show cause notice is issued to the petitioners, they should reply to the same. However, instead of filing reply to the show cause notice, petitioners have directly approached the learned Single Judge, after seeing the report that application is not in consonance with the Rules and that application should be rejected.
It is true that if what Mr. Navin Pahwa says is correct i.e. if the application is defective, then it should be rejected and no show cause notice is to be issued to the petitioners, but in the present case, that has not been done.
The fact however remains that application for disqualification has not been rejected by the Competent Authority. In the case in hand, even reply has not been filed by the petitioners. Therefore, instead of going into the facts further regarding the issue, we deem it proper to direct the petitioners to file reply to the show cause notice on the issue of maintainability and show the rulings of this Court to the competent authority and also show the findings of the learned Single Judge in the impugned order. That reply be filed to the Competent Authority within ten days. The Competent Authority is directed that if the reply to the notice is filed as directed, the application be disposed of by the end of December, 2007. If it is found that the application is not maintainable, the same can be dismissed. However, if it found that the application is maintainable, then the petitioners will be at liberty to file further reply, and the Competent Authority shall proceed further in the matter in accordance with law."
After the aforesaid order dated 28th November 2007 passed by the Division Bench of this Court, the petitioners submitted their reply to the notice to show cause on 07th December 2007 to the respondent No. 1 and the respondent No. 1 while dealing with the contentions raised in the reply submitted by the petitioners passed orders and decided to reject the Reference Application No. 12 of 2007 holding that the annexures attached to the application are not verified in the manner provided in Rule 6(5) read with Rule 6(6) of the Rules. This order passed by the respondent No. 1 is on record at Annexure-D of the petition. In the petition at some places the number of Reference Application is mentioned as ''12 of 2007'' and at some places it is mentioned as ''12 of 2008''.
The backbone of the submissions of the petitioners is that it was not open for the respondent No. 1 to entertain a fresh application on the same grounds and same cause of action as of the Reference Application No. 12 of 2007. However, the petitioners were served with a notice to show cause dated 07th January 2008 referring to the Reference Application No. 14 of 2007. On perusal of the copy of the application served to the petitioners, the petitioners realized that the Reference Application No. 14 of 2007 is also filed on the identical grounds and on the same cause of action; and the respondent No. 3-orig. applicant intends to rely on each of the documents placed while filing Reference Application No. 12 of 2007 by the applicant of that application. The petitioners also realized that once again the annexures were not verified as required in view of the provisions of Rule 6(5) read with Rule 6(6) of the Rules. It was obligatory on the part of the respondent No. 3 to see that each annexure is verified as provided under Order VI Rule 15 of the Code of Civil Procedure, 1908. All these documents were annexures. The petitioners intended to place reliance on these documents in support of their contentions in the application and absence of verification would make the Reference Application unsustainable.
According to the petitioners, keeping in mind the binding decision of this Court and the order dated 26th December 2007 passed by the respondent No. 1, the respondent No. 1 ought not to have issued notice and, therefore, the petitioners approached the respondent No. 1 and insisted that the Reference Application No. 14 of 2007 may be rejected, but the respondent No. 1 rejected the application of the petitioners vide impugned order dated 14th March 2008 and the petitioners were directed to appear before the respondent No. 1 on 27th March 2008 at 03-30 p.m. for the purpose of hearing of Reference Application No. 14 of 2007 on merit. According to the petitioners, in the interregnum period, the respondent No. 3 herein made an application to the District Collector, Rajkot purportedly u/s 258 of the Gujarat Municipalities Act and the Collector was requested to pass a prohibitory order against the petitioners restraining them from participating in the General Board Meeting of Morbi Nagarpalika and the Collector, Rajkot passed an ex-parte order restraining the petitioners from participating in the General Board Meeting which was scheduled on 24th March 2008. The petitioners immediately approached the Collector, Rajkot for vacating the prohibitory order. The petitioners thereafter approached the respondent No. 1 on 27th March 2008 and requested for two weeks adjournment of the proceedings. However, the respondent No. 1 granted only one day''s adjournment and decided to hear the matter on 28th March 2008 at 03-00 p.m. It is the say of the petitioners that this type of conduct and the order passed, have compelled the petitioners to approach this Court. According to the petitioners, for the grounds mentioned in paragraph No. 11 of the petition, the notice to show cause issued on 07th January 2008 and so also the order dated 14th March 2008 may be quashed and set aside and the disqualification proceedings initiated may be ordered to be terminated.
Shri Navin Pahwa, learned counsel appearing for the petitioners, has taken me through the contentions raised in the memo of the petition and the documents produced in support of the same. If the arguments of Shri Navin Pahwa are put in nutshell, they are as under :
5.1. The respondent No. 1 ought not to have entertained the Reference Application on the same grounds and on the same cause of action, more particularly, which is based on same set of documents in view of termination of proceedings of Reference Application No. 12 of 2007.
5.2. In view of the aforesaid decision of this Court rendered in Special Civil Application No. 20042 of 2007 preferred by the present petitioners-opponents of Reference Application No. 12 of 2007, the respondent No. 1 ought not to have issued even notice to show cause dated 07th January 2008 because it was apparently clear before the respondent No. 1 that none of the annexures was verified though they were integral part of the Reference Application.
5.3. The undue haste in disposing of the application preferred by the present petitioners for adjournment of the proceedings for some time, makes the impugned decision arbitrary and highhanded, and such a decision cannot sustain and requires to be quashed and set aside.
5.4. The scheme of Rule 6 of the Rules is mandatory and each annexure to the Reference Application requires to be signed by the applicant and also requires to be verified in the same manner as the main Reference Application i.e. verification which is required under Order VI Rule 15 of the Code of Civil Procedure, 1908. Indisputably, none of the annexures in Reference Application No. 14 of 2007 is verified.
5.5. It is observed in more than one decision, including the decision where the learned Single Judge of this Court has rendered decision in favour of the petitioners that strict compliance of Rules 6(5) and 6(6) of the Rules is mandatory and in this background the respondent No. 1 ought to have allowed the Application preferred by the petitioners praying for rejection of the Reference Application on this ground. Shri Navin Pahwa, learned counsel appearing for the petitioners, has placed reliance on Rule 7 of the Rules which prescribes procedure, and it is argued that on receipt of the Application under Rule 6 of the Rules, the respondent No. 1 is under obligation to consider as to whether the application is in compliance of the requirement of Rules or not. If the application does not comply with the requirement of Rule 6 of the Rules, the respondent No. 1 shall have to dismiss the application and intimate the petitioners accordingly. So without issuing the notice to show cause dated 07th January 2008, the respondent No. 1 ought to have dismissed the application, but he has failed in doing so though the petitioners had pointed out this glaring infirmity.
5.6. The respondent No. 1 was supposed to enter neither into the merits and contents of the application nor the annexures attached thereto. Technically the application was required to be dismissed for noncompliance of the mandatory Rules.
5.7. It is argued that the competent authority has jurisdiction to deal with the Reference Application if the same is preferred in compliance of the statutory Rules. So the attempt to deal with such an infirm or incomplete application is an act without jurisdiction and, therefore, this Court may interfere, and quash and set aside the impugned the order.
5.8. The aforesaid judgment of the learned Single Judge has been confirmed by the Division Bench of this Court while disposing of Letters Patent Appeal No. 1927 of 2007, decided on 28th November 2007. The respondent No. 1 ought to have rejected the application and there was no good reason, legal or logical, for the respondent No. 1 to rely upon the decision of the Apex Court in the case of Dr. Mahachandra Prasad Singh Vs. Hon. Chairman, Bihar Legislative Council and Others, . The act of placing reliance on the decision of the Apex Court is misconceived on facts as well as in law. The Apex Court was dealing with the facts where the authority was dealing on the strength of the powers conferred upon it under 10th Schedule of the Constitution of India and the observations made by the Apex Court in the case of Dr. Mahachandra Prasad Singh (supra) may be viewed in reference to one another decision referred to in the case of Ravi S. Naik and Sanjay Bandekar Vs. Union of India and others, .
5.9. It is submitted that in view of the earlier judgment of the learned Single Judge, another learned Single Judge while dealing with Special Civil Application No. 9003 of 2007 ought not to have given different verdict and the said petition i.e. Special Civil Application No. 9003 of 2007, was required to be referred to the Larger Bench and, therefore, the decision rendered on 28th March 2008 by this Court (Coram : C.K. Buch, J) in Special Civil Application No. 9003 of 2007, would not help the respondent No. 3. Shri Navin Pahwa has placed reliance on the observations made by the Apex Court in the case of Somabhai Mathurbhai Patel v. New Shorrock Mills, reported in 1983 GLH 273, whereby the Apex Court has held that the decision of Single Judge of a High Court is binding on another Single Judge of the same Court and it is further observed that in the case of disagreement, the matter should be referred to the Larger Bench.
5.10. Shri Navin Pahwa, learned counsel appearing for the petitioners, has also relied upon the observations made by the Apex Court in the case of State of N.C.T. of Delhi and Another Vs. Sanjeev @ Bittoo, and has concentrated his arguments on the point that the decision under challenge can be taken under judicial review. The relevant paragraph No. 18 of the cited decision read over by Shri Navin Pahwa before this Court is reproduced as under :
"18. The Court will be slow to interfere in such matters relating to administrative functions unless decision is tainted by any vulnerability enumerated above; like illegality, irrationality and procedural impropriety. Whether action falls within any of the categories has to be established. Mere assertion in that regard would not be sufficient."
5.11. The impugned order passed by the respondent No. 1 is in complete defiance of the binding decision of this Court. Not only that but the authority has ignored its own decision rendered by it in pursuance of the order passed by the Division Bench of this Court. It is relevant to note that no formal submissions have been made by Shri Navin Pahwa in reference to Grounds ''C and ''D'' mentioned in paragraph No. 11 of the petition and he has submitted that the petitioners reserve their right to agitate this point as and when the occasion to that effect so arises; and the submissions in reference to statutory Rules have been made without prejudice to such rights to point out the factual controversy as to issuance of mandate, its service, etc.
The main contesting respondent i.e. respondent No. 3, has filed his reply affidavit at page No. 133 of the petition and has responded to all the contentions. It is submitted that the respondent No. 1 was under obligation to look into the matter while dealing with the Reference Application preferred by him, more particularly, in view of the following points:
(i) That the petitioners themselves have on oath stated before the Respondent No. 1 in Application No. 13 of 2007 that such mandate exists and on the basis of the said mandate the petition is preferred by disqualification of the 13 members of the Party.
(ii) That it is undisputed that the said matter is heard on the basis of the mandate which the petitioners are now disputing.
(iii) That the petitioners are estopped from raising such contention before this Court after having accepted the mandate on oath before the Competent Authority.
Thus, the respondent No. 3 has brought a legitimate dispute and he has an independent right or privilege to file Reference Application. Shri S.N. Shelat, learned senior counsel appearing with Shri Harshadray A. Dave for the respondent No. 3, has argued in detail and has responded to each of the submissions made by Shri Navin Pahwa, learned counsel appearing for the petitioners. The submissions of Shri S.N. Shelat if are put in nutshell, are as under:
7.1 The Reference Application No. 14 of 2007 is a verified application and the same is supported by way of the affidavit. So the basic document i.e. application, received by the respondent No. 1 was a duly verified document.
7.2 Unless a document is an integral part of the Reference Application, the same is not required to be verified. The documents which can be placed before the respondent No. 1 in the proceedings are found to have been categorized in two separate categories. The first category is a set of documents referred to in Rule 6(4) of the Rules and the second category of the documents is the documents referred to in Rule 6(6) of the Rules. Shri S.N. Shelat has taken me through the contents of paragraph No. 10 of the application at page No. 90, wherein it is stated by the respondent No. 3 that the applicant intends to rely upon the documents enlisted and produced in support of contents of the application. It would be beneficial to reproduce the said paragraph No. 10 in vernacular Gujarati language as under:
7.3 It is further submitted that the affidavit of the respondent No. 3 is at page No. 91 of the petition, which was submitted to the respondent No. 1. This Court while appreciating the arguments of Shri Navin Pahwa, learned counsel appearing for the petitioners, may consider the title of the list of documents tendered to the respondent No. 1 which is at page No. 92. It is no where stated by the petitioners that any of the documents may be treated as integral part of the petition. Shri S.N. Shelat has taken me through the Rules 6(4) and 6(6) of the Rules.
7.4 It is submitted that the Division Bench of this Court while dealing with Letters Patent Appeal No. 1927 of 2007 cannot be said to have upheld the finding recorded by the learned Single Judge. On the contrary, the Division Bench had directed, instead of confirming the quashing of notice to show cause and initiating the entire proceedings, that the petitioners should submit to the jurisdiction of the respondent No. 1 and convince him that the provisions of Rules 6(5) and 6(6) of the Rules are mandatory in nature and, therefore, the respondent No. 1 was supposed to dismiss the application preferred by the petitioners in limine in view of Rule 7 of the Rules. True it is that ultimately the respondent No. 1 decided in favour of the petitioners when they were opponents in Reference Application No. 12 of 2007.
7.5 The principle of res judicata or estoppel shall have no role to play. Each elected member sitting in the House can pray for disqualification of any sitting Member and can satisfy independently in his personal capacity that a member in particular or group of members have incurred disqualification. There was a clear distinction between the set of documents produced in Reference Application No. 12 of 2007 and the second Application i.e. Reference Application No. 14 of 2007. In the proceedings of Reference Application No. 12 of 2007, the respondent No. 1 was satisfied that the application suffers from statutory infirmity and, therefore, the contentions of the present petitioners were accepted. On the precedence, the argument advanced by Shri Navin Pahwa is not sustainable. According to Shri S.N. Shelat, the decision of this Court cannot be said to have any binding force, more particularly when the facts were a bit different while dealing with the Reference Application No. 14 of 2007. The Reference Application No. 14 of 2007 is an application duly verified. The oral evidence of the applicant in the nature of affidavit was also there before the respondent No. 1; and in support of the contentions raised in the application, the respondent No. 3 had produced a set of documents as provided under Rule 6(4) of the Rules. It is no where averred that any of the documents produced by the respondent No. 3 may be read and considered as part of the petition or may be treated as annexure to the petition. Each document produced in support of the application may not be the annexure and, therefore, the documents are to be categorized differently.
7.6 Shri S.N. Shelat has submitted that when the learned Single Judge decided the earlier petition preferred before this Court by the present petitioners in the proceedings of Reference Application No. 12 of 2007, perhaps the aforesaid judgment of the Apex Court in the case of Dr.Mahachandra Prasad Singh (supra) was not placed before the learned Single Judge and the respondent No. 1 was supposed to consider the ultimate effect of the decision of this Court in the background of the judgment of the Apex Court; more particularly when the facts in Reference Application No. 12 of 2007 are a bit different because in the Reference Application No. 14 of 2007 i.e. application preferred by the respondent No. 3, each document produced in support of the application was signed at the bottom of the page, which was not there in the earlier proceedings. It is submitted that this Court, of course, has not referred to the decision of the Apex Court in the case of Dr.Mahachandra Prasad Singh (supra) in particular, but has observed that the provisions of Rules 6(5), 6(6) and 6(7) of the Rules are directory and there is no element of mandamus. The use of word ''shall'' at some place in these Rules would make the effect of the Rules mandatory. Ultimately, these are all procedural Rules and have to be interpreted in the background of the facts. Shri S.N. Shelat has placed reliance on the decision of this Court (Coram : C.K. Buch, J) rendered on 28th March 2008 in the case of Parbatbhai Manshibhai Vanariya, in Special Civil Application No,9003 of 2007 and has submitted that on similar facts of the present case, the Court has in the cited decision held that the respondent No. 1 has rightly entertained the application and recorded the verdict on merit. True it is that some of the observations made by this Court in the case of Parbatbhai Vanariya (supra) are not in conformity with the observations made by the learned Single Judge in the case of Devabhai Avadia (supra), but according to Shri S.N. Shelat, the observations made by this Court in the case of Parbatbhai Vanaria (supra) are consistent to the observations made by the Apex Court. Shri Shelat has taken me through the relevant paragraph Nos. 17, 18, 19 and 20 of the cited decision in the case of Parbatbhai Vanariya (supra), which are reproduced for the sake of brevity and convenience hereinbelow :
"17. Here it would be relevant to note that as per the settled legal position, a Civil Court can permit a party to verify a particular fact if it is required to be verified. The verification is a type of endorsement which is required to be made in a particular language and in a particular manner, especially when the scheme provides that the same should be made in accordance with the scheme of Order 6 Rule 17 of the Code of Civil Procedure, 1908. It is observed that such a verification, if is missed, can be permitted to be made and according to me, such an exercise cannot be equated with amendment of pleading. The verification is a verification of facts of the statement made or the facts stated either in the pleading or in a document. Such endorsement in the form of a particular language and style binds a party who signs below verification i.e. maker of a statement of verification and it also simultaneously strengthens the confidence of the authority or the Court. There are other consequences also of the verification if made and if not made, though required. But when this Court has observed that the verification of each document in such a proceeding is only required when the same is an integral part of the application. The said decision of the learned Single Judge of this Court was also dealing with a case where the petitioner has approached the Court before recording of a formal finding by the designated authority and immediately after initiation of proceedings by the designated authority on receipt of application u/s 3 of the Act. Here the petitioner had participated in the proceedings. It is not possible for this Court to accept the argument that he ought to have been permitted to cross-examine the witnesses because the proceedings are summary proceedings and to falsify the contents of the application and the witnesses, he could have filed affidavits from his side. The petitioner also could have adduced other cogent and convincing evidence in the form of documents or by placing circumstances that on none of the occasions the mandate was either served to him or he was aware about the mandate issued. Indisputably, the Municipal Councillors belonging to the BJP were asked to vote in a particular pattern and the petitioner was supposed to cast vote in favour of the candidate sponsored by the BJP. It is the claim of the petitioner that in advance he had informed the President and the Chief Officer about his inability to remain present and participate in the Special General Body Meeting held on 24th July 2006. So obviously he cannot dispute these facts pleaded in the application and supported by the documents signed by the applicant. Obviously, therefore, those documents cannot be said to be integral part of the application preferred u/s 3 of the Act. On the contrary, the petitioner ought to have submitted certain convincing documents which would lead to a conclusion that he was physically unable even to travel or stir out of his home. In given circumstances, the leader of the party in the House could have been informed and in such circumstances, the party leader even can arrange for presence of a sick member of the House so that such a respected member can participate in a crucial meeting convened for the purpose. It is submitted that it was a requisition meeting called for and the petitioner was one of the parties who had signed the letter of requisition submitted to the Chief Officer. These facts have neither been disputed by Shri Tushar Mehta, learned counsel appearing for the petitioner, nor were disputed by the petitioner before the designated authority. The documents produced in support of the say of the applicant do not appear to be documents which can be said to be integral part of the application. So they are not required to be verified'' individually. It is also possible for this Court to observe that on a given set of facts and circumstances, it is possible for this Court to observe that if certain classes of documents which are produced along with the application u/s 3 of the Act are found signed by the maker of the application who has signed the application u/s 3 of the Act, it can be construed to be the signature placed with a view to authenticate the said document. So while evaluating the evidence of the applicant as well as the opponent, led in the nature of affidavit, the designated authority ought to have a look on such documents in a fact finding exercise.
It is clear from the application, reply affidavit filed by the present petitioner before the designated authority and the affidavits filed in support of the application of the applicant before the designated authority and other members, on one occasion the petitioner had remained absent under the guise of his sickness and the mandate was not served; and on another occasion, he was intimated about issuance of the mandate and attempt to serve the mandate was also made before the meeting which was convened on 29th July 2006, however, he voted against the mandate of the party. So the conduct of the petitioner appears to be consistently hostile to the Municipal Party. This part could not have been ignored by the designated authority and should not be ignored in such or similar cases.
In view of the decisions of the Apex Court relied upon by Shri Tushar Mehta, learned counsel appearing for the petitioner, and referred to by the learned Single Judge of this Court while discussing the provisions of Sections 86 and 83(1)(c) of the Act, 1951, it is clear that all these cases are the cases where the applications praying for disqualification were made on the allegations of indulging into corrupt practices. So the candidate elected and the opponent to the proceedings initiated for disqualification under the provisions of Act, 1951 should be made aware as to what type of allegations he is facing, by whom and on which type of evidence the applicant relies upon to expose and prove alleged corrupt practice indulged into by him and terming it a corrupt practice.
The elections of a local authority are the grooming grounds for the people who intend to serve the society and the country in a democratic structure. So in the cases where disqualification is sought for by other sitting member of the House, such an application should not be thrown out unless it is found infirm. In the case of Devabhai (supra), the learned Single Judge found that the application tendered by itself was infirm and was not even verified and none of the documents was even signed and, therefore, it has been held that such an application ought to have been dismissed in limine. This leads me to a conclusion that the cases where the application is verified and supported by an affidavit and if the documents relied upon by the applicant which are not integral part of the application by themselves, even then they are signed by the maker of such application, then such an application should not be thrown out by the designated authority as per the scheme of Rule 6(6) of the Rules; and in the present case, the designated authority has rightly entertained the application of the said applicant on merit"
7.7 It is further submitted that the following observations made by the Apex Court in the case of Dr.Mahachandra Prasad Singh (supra) were found relevant by the respondent No. 1 and the tone of the impugned order is that the respondent No. 1 preferred to follow the decision of the Apex Court for the reasons mentioned in the impugned order. Shri Shelat has drawn the attention of the Court to the following main observations made by the Apex Court :
"14. Shri Mishra has submitted that as provided in sub-rule (6) of Rule 6 of the Rules, the petition filed by Shri Salman Rageev had to be signed and verified in the manner laid down in the CPC (for short ''CPC'') for verification of pleadings and, therefore, in terms of sub-rule (4) of Order VI Rule 15 CPC an affidavit in support of the petition had to the filed. Since the requisite affidavit had not been filed, the requirement of the Rule had not been complied with, and the petition was liable to be dismissed in view of sub-rule (2) of Rule 7 of the Rules. The Chairman of the House had, therefore, no authority or jurisdiction to initiate any proceedings or to hold that the petitioner had become disqualified for being a member of the House. The question which requires consideration is whether the provisions of Rules 6 and 7 are so mandatory in nature that even a slight infraction of the Rules would render the entire proceedings initiated by the Chairman invalid, or without jurisdiction.
xxx xxx xxx
The petition filed by Shri Salman Rageev was signed and verified in the following manner:
"All the facts stated in this petition are true and correct to my knowledge and belief and no part of it is false.
Sd/- (Salman Rageev)
M.L.C. 10-6-2004"
There cannot be any dispute that sub-rules (1). (2) and (3) of Order VI Rule 15 CPC were complied with. Learned counsel for the petitioner has, however, laid great emphasis of the fact that Shri Salman Rageev had not filed any affidavit in support of his petition and consequently the provisions of sub-rule (4) of Order VI Rule 15 CPC which provides that the person verifying the pleadings shall also furnish an affidavit in support of his pleadings were not complied with. For the reasons stated earlier, we are of the opinion that the provisions of Rules 6 and 7 are directory in nature and on account of non-filing of an affidavit as required by sub-rule (4) of Order VI Rule 15 CPC, the petition would not be rendered invalid nor the assumption of jurisdiction by the Chairman on its basis would be adversely effected or rendered bad in any manner. A similar contention was raised before a Bench presided by Venkatachaliah, C.J. in Ravi S. Naik and Sanjay Bandekar Vs. Union of India and others, , but was repelled. The relevant portion of para 18 of the reports is being reproduced below: Ravi S. Naik and Sanjay Bandekar Vs. Union of India and others,
"18.......The Disqualification Rules have been framed to regulate the procedure that is to be followed by the Speaker for exercising the power conferred on him under sub-paragraph (1) of paragraph 6 of the Tenth Schedule to the Constitution. The Disqualification Rules are, therefore, procedural in nature and any violation of the same would amount to an irregularity in procedure which is immune from judicial scrutiny in view of sub-paragraph (2) of paragraph 6 as construed by this Court in Shri Kihota Hollohon Vs. Mr. Zachilhu and others, . Moreover, the field of judicial review in respect of the orders passed by the Speaker under sub-paragraph (1) of paragraph 6 as construed by this Court in Kihoto Hollohan case is confined to breaches of the constitutional mandates, mala fides, non-compliance with Rules of Natural Justice and perversity. We are unable to uphold the contention of Shri Sen that the violation of the Disqualification Rules amounts to violation of constitutional mandates. By doing so we would be * elevating the rules to the status of the provisions of the Constitution which is impermissible. Since the Disqualification Rules have been framed by the Speaker in exercise of the power conferred under paragraph 8 of the Tenth Schedule they have a status subordinate to the Constitution and cannot be equated with the provisions of the Constitution. They cannot, therefore, be regarded as constitutional mandates and any violation of the Disqualification Rules does not afford a ground for judicial review of the order of the Speaker in view of the finality clause contained in sub-paragraph (1) of paragraph 6 of the Tenth Schedule as construed by this Court in Shri Kihota Hollohon Vs. Mr. Zachilhu and others,
7.8 It is further submitted that the Reference Application is to be decided and the application preferred by the respondent No. 3 could not have been dismissed merely on the ground that the respondent No. 1 had dealt with the application of the similar nature and mainly on similar grounds. Rule 7 of the Rules would not be relevant at all as the application was supported by the affidavit and the same was duly verified. Shri Shelat has also placed reliance on one decision of the Apex Court in the case of Ravi S. Naik (supra).
7.9 It is also one of the arguments that the order passed by the respondent No. 1 causes no injury or prejudice to the petitioners. He has simply decided that he would go on with the matter and hear the parties on merit and decide the matter as to whether the petitioners have incurred disqualification or not, considering the scheme of Section 3 of the Act. When the respondent No. 1 is able to decide the Reference Application on the strength of the affidavit only, the formal production of documents even may not be required and each document, indirectly produced in support of the application, has been referred to in the application filed by the respondent No. 3. When a separate application is preferred, it was required to be treated as separate cause otherwise it would result into serious prejudice to the respondent No. 3.
7.10 It is further argued that no error of law can be said to have been committed by the respondent No. 1. The respondent No. 1 was otherwise supposed to deal with the controversy on the point of disqualification incurred by the petitioners. It was pending since another councillor had approached the respondent No. 1 by moving Reference Application No. 12 of 2007 and, therefore, the respondent No. 1 decided not to grant a longer adjournment. There is no element of either haste or arbitrariness because nothing adverse has been recorded against the petitioners. Even as per Rule 8 of the Rules, such an application has to be decided within a period of two months. When the Court is asked to invoke jurisdiction under Article 226 of the Constitution of India, this Court is supposed to decide as to whether any element of perversity or patent illegality is there in the order or not, or any jurisdictional error has been committed or not. On plain reading of the impugned order", it appears to be an order passed at an interlocutory stage and the respondent No. 1 has never denied to deal with the facts on merits and, therefore, the present petition may be quashed and set aside. The order under challenge passed by the respondent No. 1 may be upheld and the parties, more particularly the petitioners, may be directed to contest the Reference Application on merit.
From the submissions made by the rival parties and the contents of the order under challenge, it is clear that no final verdict has been recorded by the respondent No. 1 accepting the Reference Application made u/s 3 of the Act declaring that the petitioners have incurred disqualification. By way of the impugned order, the respondent No. 1 has ordered that there is no substance in the preliminary objections raised by the petitioners and, therefore, the objections are overruled and the proceedings of Reference Application No. 14 of 2007 be entertained on merit. The petitioners were informed that they shall appear for hearing on 27th March 008. The preliminary objections were mainly on the ground that the Reference Application No. 14 of 2007 is not maintainable, more particularly, in reference to disposal of earlier similar nature of Reference Application No. 12 of 2007 and on the ground that the decision of this Court in Devabhai Avadia (supra) is binding to the respondent No. 1. So the said Reference Application is required to be dismissed summarily at the threshold. The jurisdiction of the respondent No. 1 was also challenged contending that no notice to show cause could have been issued because the Reference Application was infirm as the same was not filed strictly in accordance with the statutory Rules, more particularly, as per the scheme of Rule 6 of the Rules. So if the petitioners are asked to appear in the proceedings, no prejudice ultimately would cause and they can place their case on merit. It is possible for them to convince the respondent No. 1 that filing of incomplete application or infirm application has resulted into serious prejudice to them. As such operative order under challenge at least is not injurious to the status of the petitioners as a councillor of Morbi Nagarpalika and in that background, the Court has to decide as to whether tie inherent powers vested under Article ,226 of the Constitution of India should be exercised or not; or in such or similar cases, whether the Court should invoke its inherent jurisdiction to interfere with the finding recorded by the respondent No. 1 who is conferred with the powers under the Act, or not. Here it would be beneficial to reproduce the entire scheme of Section 3 of the said Act, which is as under:
"Section 3 : Disqualification on ground of defection : (1) Subject to the provisions of Sections 4 and 5, a councillor or a member belonging to any political party shall be disqualified for being councillor or a member;-
(a) If he has voluntarily given up his membership of such political party; or
(b) If he votes or abstains from voting in any meeting of a municipal corporation, panchayat or as the case may be, municipality contrary to any direction issued by the political party to which he belongs or by any person or authority authorized by it in this behalf without obtaining in either case the prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention.
(2) An elected councillor, or as the case may be, member who has been elected as such otherwise than as a candidate set up by any political party shall be disqualified for being a councillor or, as the case may be a member if he joins any political party after such election.
(3) An appointed councillor or, as the case may be, member shall be disqualified for being a councillor or, as the case may be, a member if he joins any political party after the expiry of six months from the date on which he is appointed as such councillor, as the case may be, a member.
(4) Notwithstanding anything contained in the foregoing provisions of this section, a person who on the commencement of this Act, is a councillor, or, as the case may be, a member (whether elected or appointed as such councillor or member) shall, -
(a) where he was a member of a political party immediately before such commencement, be, deemed, for the purposes of sub-section (1) to have been elected as a councillor or, as the case may be, a member as a candidate set up by such political party;
(b) in any other case, be deemed to be an elected councillor or, as the case may be, member who has been elected as such otherwise than as a candidate set up by any political party for the purpose of sub-section (2) or, as the case may be, deemed to be an appointed councillor or, as the case may be, a member for the purposes of sub-section (3)."
In view of aforesaid scheme of Section 3 of the Act, it is clear that the Reference Application u/s 3 of the Act was made by the respondent No. 3 herein and, therefore, the decision on the question as to disqualification on the ground of defection was supposed to be recorded by the authority constituted u/s 6 of the Act. It would be beneficial to reproduce the said Section 6 of the Act, which is as under :
"Section 6 : Decision on question as to disqualification on ground of defection;-if any question arises as to whether;-
(1) a councillor of a municipal corporation;
(2) a member of a panchayat; or
(3) a councillor of a municipality has become subject to disqualification under this Act, the question shall be referred to the Chief Secretary to the State Government or to such officer not below the rank of Secretary of any Department of the State Government as may be designated by the State Government in this behalf and his decision shall be final."
The provisions of the Act and Rules framed thereunder are practically analogous to the 10th Schedule of the Constitution of India. So instead of the Speaker of the House, the disqualification proceedings are required to be conducted as per the scheme of Section6 of the Act either by the Chief Secretary to the State or by the competent officer who is designated by the State Government in this behalf. The decision of such an officer is required to be treated as final. The proceedings obviously are of quasi judicial nature. The jurisdiction of the Civil Court is barred and the proceedings are required to be conducted keeping in mind the Act as well as the Rules framed u/s 8 of the Act. With this legal background, it was open for the petitioners to raise preliminary objections but the preliminary objections have been overruled by the impugned order and the petitioners have been asked to appear in the proceedings and place their case. They can satisfy the respondent No. 1 that they have not incurred disqualification and the Reference Application is required to be rejected. When it is not a matter of dispute that the Reference Application No. 14 of 2007 is preferred within the prescribed period of limitation and the respondent No. 3 was legitimately authorized to agitate the grievance on his behalf personally, the authority is supposed to answer the Reference made. The principle of res judicata or estoppel does not apply to such proceedings, is a sound, good and logical argument advanced and, therefore, the same is found acceptable. The finding recorded by the respondent No. 1 that the provisions of Rule 6(6) of the Rules are directory, is required to be evaluated in the background of the arguments advanced. Rule 6(6) of the Rules provides as under :
"Rule 6(6) : Every annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition."
According to the petitioners, the verification of each annexure as contemplated under sub-rule (5) of Rule 6 of the Rules must be in accordance with and in the manner laid down in the Code of Civil Procedure, 1908 as if a pleading is verified. Indisputably, the number of documents have been produced with the list of documents in support of the Reference Application and the affidavit produced in support of the contents of the application; but none of these documents has verification as contemplated under the provisions of the Code of Civil Procedure, 1908. However, each document is found signed by the respondent No. 3-orig. applicant. Whether this would be sufficient or can be said to be satisfactory compliance or not, was the question before the respondent No. 1 and the respondent No. 1 has considered various aspects. Here it would be relevant to reproduce sub-rule (4) of Rule 6 of the Rules, which reads as under :
"Rule 6(4) : Every petition,-
(a) shall contain a concise statement of the materials facts on which the petitioner relies; and
(b) shall be accompanied by copies of the documentary evidence if any, on which the petitioner relies and where the petitioner relies on any information furnished to him by any person a statement containing the names and addresses of such persons and the gist of such information as furnished by each such person."
The scheme of Rule 6 of the Rules speaks about two types of documents; one type of documents that may be produced in support of the application or contents thereof and the another type of documents which are the annexures to the application which can be said to be the integral part of the application. Of course, the finding is not based, keeping in mind the scheme of sub-rule (4) of Rule 6 of the Rules, but it is observed that the documents produced are the documents produced in support of the application, and absence of verification as per the scheme of Code of Civil Procedure, 1908, would not vitiate the proceedings or the sustainability of the Reference Application itself as the provisions of Rule 6 are directory in nature. It is not possible for this Court to agree that the respondent No. 1 has passed the order in defiance of the verdict of this Court in the case of Devabhai Avadia (supra). In more than one decision, this Court has observed that the scheme of Rule 6 is mandatory in nature. In the case of Pushpendra Chandra Prakash Sharma v. State of Gujarat, reported in 1996 (3) GCD 792, the Court has ultimately held that it is the duty of the Court to dismiss the Reference Application if the same is found to be submitted in non-compliance of sub-rule (6) of Rule 6 of the Rules. It would be beneficial to reproduce the relevant paragraph Nos. 21, 22 and 23 of the cited decision as under wherein this Court has observed as under :
"21. In the instant case, the defect pointed out in the petition is that annexures are not signed and verified by the applicant (respondent No. 3) as required by Rule 6(6) of the Rules of 1987. Thus, on the face, there appears to be noncompliance of sub-rule (6) of Rule-6. According to Mr K.S.Zaveri, learned counsel, the effect of noncompliance of sub-rule (6) of Rule 6 is that the Chief Secretary or the Designated Officer was left to no option but to dismiss the petition. He further submits that sub-rules 1 and 2 of Rule 7 casts a duty on the Designated Officer to ensure that the petition is in conformity with the Rules. The mandate under the Sub-rule (2) of Rule-7 is that if the provision has not been complied with, the petition shall be dismissed. Mr. Zaveri submits that the sub-rule (6) is analogous of section 83(1 )(c) of Representation of Peoples Act, 1951 (hereinafter referred to as ''the Act, 1951''), which provides that any Schedule or Annexure to the petition shall be signed by the petitioner and verified in the same manner as the petition. The effect of noncompliance is rejection of the petition under the provisions of section 86(1). On the other hand, Miss V.P.Shah, Senior Advocate, appearing for the respondent No. 3, submits that, at the first instance, sub-rule (6) of Rule-6 is not mandatory on the analogy of the section-83(1)(c) of the Act of 1951, and secondly, even if it is so, factually the Annexure are not integral part of the petition and such petition can not be rejected on the ground of Annexure being not signed and verified as required by Rule 6(6).
I have given my anxious and thoughtful consideration to the rival contentions. The lure of office or other similar consideration, has given rise to evil of political defection, which has brought in Legislature anarchism, endangering the foundation of Democracy. Thus, the defection law at all level. Bearing this in mind, Rule 6(6) and Rule 7(2) providing the consequences of non-compliance, is considered. The normal rule is where a statute requires a particular act to be done in a particular manner and also lays down that failure to comply with the said requirement leads to specific consequences, it must lead to that consequences and no other consequences. Dealing with the provisions of section 81(3) of the Act of 1951, which provides that every election petition shall be accompanied by copies of the petition for respondents and shall be attested by the petitioner under his own signature to be true copy of petition and provision of section 86(1) which provides consequences of non-compliance of provision of section 81 i.e. dismissal of the petition, Apex Court in numerous cases held that there is no option with the High Court but to dismiss petition. Though Rule 6(6) is analogous to section 83(1)(c) of the Act of 1951, but the consequence of noncompliance of section 83(1)(c) is not provided as dismissal u/s 86. However, in Dr.(Smt) Shipra etc. v. Shantilal case, a decision reported in J.T. 1996(5) SC 681, Apex Court held that sections 81, 83(1)(c) and 86 read with Rule 94(A) of the Rules and Form 25 are to be read jointly as integral scheme. In F.A. Sapa Etc., Etc., Vs. Singora and others, , the Apex Court held that if the schedule and annexure forms an integral part of the election petition itself, strict compliance would be insisted upon.
What is annexure has been considered by the Panjab & Haryana High Court in case of Panna Vs. Mukhtiar Singh, . The Court after referring to dictionary meanings of annexure and English cases, held that an annexure would necessarily be a part of the petition, if there is a substantial reference in the petition. On the other hand, the election petition makes a reference to certain proposition of law. It will not be strictly an annexure and cannot be considered as integral part of the petition."
The plain reading of Reference Application No. 14 of 2007, more particularly, the last paragraph i.e. paragraph No. 10, clearly suggests that none of the documents produced in support of the application was tendered as annexure, but the respondent No. 3-orig. applicant has stated that the same are produced in support of his version in the application as well as in the affidavit. The affidavit covers the contents of the application and the documents produced along with the list. As discussed in the case of Pushpendra Chandra Sharma (supra), the Court has referred to the judgment of the Panjab and Haryana High Court in the case of Panna Vs. Mukhtiar Singh, . So considering the dictionary meaning of the word ''Annexure'' and when the Rule itself distinguishes the documents of two different categories, it will not be possible for this Court to say that the documents produced along with the application by the respondent No. 3 were annexures or the documents produced as part of the said application. The documents are found to be set of documents produced in support of the contents of the application. Shri Navin Pahwa, learned counsel appearing for the petitioners, has argued that the sub-rule (4) of Rule 6 of the Rules speaks about two separate parts of petition which may be submitted as Reference Petition/Application and Clause-B of sub-rule (4) of Rule 6 of the Rules speaks about the documents which would fall in the category of annexures as provided under sub-rule (6) of Rule 6 of the Rules. In the decision of Devabhai Avadia (supra), it appears from reading of the judgment that no formal submissions were made keeping in mind the scheme of sub-rule (4) of Rule 6 of the Rules or the observations made by the Apex Court in the case of Dr.Mahachandra Prasad Singh (supra). In the case of Parbatbhai Vanariya(supra), this Court has not considered the scheme of sub-rule (4) of Rule 6 of the Rules, and there is no discussion in any of these two judgments i.e. in the cases of Devabhai Avadia (supra) or Parbatbhai Vanariya (supra), whereby this Court has expressed any view as to the number of categories of documents which can be appreciated by the respondent No. 1. The judgment in the case of Devabhai Avadia (supra) would not help the petitioners, more particularly, when the petitioners were relegated to the respondent No. 1 to present their case on merit. The decision of the Division Bench can be construed as the judgment against the petitioners so far as their prayer to declare the show cause notice as void being a notice issued devoid of any authority, more particularly, in the background of the submissions made citing the scheme of sub-rule (5) of Rule 6 of the Rules and Rule 7 of the Rules, which prescribes for procedure. Rule 7(2) of the Rules provides that if the petition does not comply with the requirement of Rule 6 of the Rules, the Chief Secretary to the State Government or the officer designated shall dismiss the petition and intimate such petitioner accordingly. In the cited decision in the case of Devabhai Avadia (supra), indisputably the documents were not verified as provided by sub-rule (5) of the Rule 6 of the Rules, and practically they were presumed to be the annexures, even then the Division Bench of this Court instead of quashing the notice issued to the petitioners directed the petitioners to appear before the designated authority and to make necessary submissions. Meaning thereby, the finding recorded by the learned Single Judge relied upon by Shri Navin Pahwa, requires consideration in this background. On the other hand, in the case of Parbatbhai Vanariya (supra), this Court has observed mainly in relevant part of paragraph No. 15 as under:
"15. Of course, this observation is in reference to context of the submissions which were made before the Court by the learned counsel appearing for the petitioner. The said petitioner had challenged the initiation of proceedings by the designated authority on the strength of the application made u/s 3 of the Act. So in this cited decision, the Court was not scrutinizing the legality and validity of the finding recorded. If the scheme is read in its entirety of the Act as well as Rules framed thereunder, Rule 7(2) of the Rules is a provision as to consequential effect of noncompliance of the Rule 6 of the Rules. Sub-rule (2) of Rule 7 confers privilege to reject the application summarily even without entertaining it as an invalidly instituted proceeding. In the case of Devabhai (supra), it is clear from the judgment that the application preferred by the applicant u/s 3 of the Act before the designated authority was not even verified as per the scheme of the Code of Civil Procedure, 1908 and the documents relied upon by the applicant were not even signed. In the present case, the facts are materially different. The application is found not only verified but also supported by signature of the applicant and the averments made in the application seeking disqualification of the petitioner as Municipal Councillor are supported by affidavits of more than one person who were knowing the facts stated in the application. It is not the say or submission before the Court that these original affidavits were never tendered before the designated authority and only xerox copies of the said documents were produced. The original document if is produced before the competent authority, obviously it may not need any formal verification because these affidavits obviously have to be verified by the competent officer and they are pieces of evidence. In the case of Pushpendra Chandra (supra) this Court has observed that the proceedings before the designated authority are summary proceedings and so if any party intends to rely upon a piece of evidence, such an evidence can be led in the form of affidavit and, therefore, the affidavits were filed. So like the case of Devabhai (supra), the designated authority was neither supposed to dismiss the application of the applicant in limine nor it was statutorily required for the designated authority to dismiss the application saying that he refuses to entertain the application being an application not submitted in compliance of Rule 6 of the Rules. True it is that the documents tendered to the designated authority do not bear any formal verification as per the scheme of Code of Civil Procedure, 1908 and these documents including the list bear the signatures; of course, the said signatures are not legible but the application filed by Shailesh Bhavanbhai Kanajariya and the affidavit filed by him in support of the application bear the signature and it was not legally impossible or improper for the designated authority to compare the undisputed signatures'''' of the applicant-Shailesh Kanajariya i.e. signatures of the applicant on the application and on the affidavit visa-vis on the documents tendered....."
The respondent No. 1 is supposed to give his decision within a period of two months on the Reference Application made u/s 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 u/s 3 of the Act read with Rule 6 of the Rules.
In the present case, the petitioners are facing proceedings of Reference Application preferred by the respondent No. 3 contending that the petitioners have incurred disqualification as per the scheme of Section 3(1)(b) of the Act. In the case of Parbatbhai Vanariya (supra), this Court has made relevant observations in paragraph No. 16. The relevant part of the said paragraph No. 16 is reproduced as under :
"16. I am of the view that when the main application is found verified and is supported by affidavit along with the other affidavits proving the contents of the application made seeking disqualification of a member of the local authority, as substantive piece of evidence, and it is possible for the designated authority to decide the matter on merit ignoring the documents produced along with the application, the designated authority can pass appropriate orders either allowing the application and declaring the member of the local authority disqualified or rejecting the plea raised by the applicant."
The aforesaid finding in the case of Parbatbhai Vanariya (supra) has been confirmed by the Division Bench of this Court, is one of the submissions. Shri Navin Pahwa has accepted that the Division Bench of this Court has upheld the decision of the learned Single Judge in the case of Parbatbhai Vanariya (supra) while dealing with Letters Patent Appeal. In this cited decision of Parbatbhai Vanariya (supra), this Court has held that the scheme of Rule 6 of the Rules is directory in nature. In the present case, when the Court is satisfied with the submissions made by Shri S.N. Shelat, learned senior counsel appearing with Shri Harshadray A. Dave for the respondent No. 3, that the set of documents produced along with the list of documents can be said to be the documents produced along with the application as provided in sub-rule (4) of Rule 6 of the Rules, the arguments of Shri Navin Pahwa, learned counsel appearing for the petitioners, based on the decision in the case of Devabhai Avadia (supra) would not help the petitioners.
The facts of the case of Parbatbhai Vanariya (supra) are mostly similar to the facts pointed out by Shri Navin Pahwa. According to Shri Navin Pahwa, each document produced by the respondent No. 3 before the respondent No. 1 is simply signed but each of them is not the document verified as provided in the Code of Civil Procedure, 1908. In the case of Parbatbhai Vanariya, the documents were signed and they were also not verified as provided under the Code of Civil Procedure, 1908 and in compliance of sub-rule (5) of Rule 6 of the Rules.
In the case of Dr.Mahachandra Prasad Singh (supra), the petition filed by Shri Salman Rageev was signed and duly verified, however, though it was clear that there was no affidavit in support of his petition as contemplated under sub-rule (4) of Rule 15 of Order 6 of the Code of Civil Procedure, 1908, the Apex Court held, "...., we are of the opinion that the provisions of Rules 6 and 7 are directory in nature and on account of non-filing of an affidavit as required by sub-rule (4) of Order VI Rule 15 CPC, the petition would not be rendered invalid nor the assumption of jurisdiction by the Chairman on its basis would be adversely effected or rendered bad in any manner." This observation is in the background of the finding recorded by the respondent No. 1 which is under challenge in this petition. In this fact situation, it will not be possible for this Court even to agree with the argument of Shri Navin Pahwa that the respondent No. 1 has ignored any binding decision or the order under challenge is passed in defiance of the judgment of this Court. On the contrary, the order under challenge is in conformity with the decision of the Apex Court.
Shri Navin Pahwa, learned counsel appearing for the petitioners and Shri S.N. Shelat, learned senior counsel appearing with Shri Harshadray A. Dave for the respondent No. 3 have argued in reference to precedence and each decision can be said to have binding force in detail. Both of them have placed reliance on certain decisions, but in view of aforesaid discussion, it is not necessary to comment upon the authorities cited. When two judgments i.e. in the case of Devabhai Avadia (supra) of this Court and another in the case of Dr.Mahachandra Prasad Singh (supra) of the Apex Court, were there before the respondent No. 1 and when there is no controversy as to the scheme of law referred to or placed before the Court, the finding of the respondent No. 1 should be consistent to the verdict of the Apex Court. There are more than one decision, which say that the scheme is directory and even for the sake of argument, the documents can be said to be the vital documents produced along with the application, they are signed. So at least it is possible for the respondent No. 1 to treat the said documents as the documents duly authenticated by a responsible person like petitioners themselves. So the respondent No. 1 was right in holding that there is no merit in the preliminary objections raised and the Reference Application requires to be dealt with on its own merits. There is also some logic in the arguments of Shri S.N. Shelat that the list of documents produced along with the Reference Application should be considered as documents produced as contemplated under sub-rule (4) of Rule 6 of the Rules, which does not cast any obligation to verify each document produced as per the scheme.
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) noncompliance 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.
In view of aforesaid observations and discussion, the present petition stands dismissed. The order dated 28th March 2008 passed by the respondent No. 1 in Reference Application No. 14 of 2007 is hereby confirmed.
The petitioners are directed to pay the costs of this petition quantified at Rs. 5,000/- (Rupees Five Thousand only) to the respondent No. 3 within a period of two months from today. The interim relief granted earlier, if any, stands vacated. Notice is discharged. In view of dismissal of the main petition, no formal order in Civil Application for vacating stay is passed. Civil Application also stands disposed of accordingly.
FURTHER ORDER
Shri Navin Pahwa, learned counsel appearing for the petitioners, prays to stay the implementation, execution and operation of the present common CAV judgment so that the intra-court appeal can be preferred and the petitioners can pray for some interim relief before the Division Bench. The request is not found acceptable considering the reasons assigned by the Court, especially when the Court has observed that this is not a case of injury or serious prejudice to the petitioners.