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Judgment
N.G. Shelat, J.—The facts giving rise to this petition broadly stated are that the petitioner, Councillor of the Nadiad Borough Municipality,
sent to the Collector of Kaira, an application dated 6th March 1964 requesting him to inquire and disqualify Respondent No.l Shri J.M. Shah from
his continuance as a Councillor of the said Nadiad Borough Municipality, on the ground that he had absented himself for four successive months at
the meetings duly held by the Municipality of Nadiad without the leave of the Municipality as required u/s 28(1)(d) of the Bombay Municipal
Boroughs Act, 1925, (hereinafter referred to as the old Act). The Collector of Nadiad thereupon acting u/s 28(2) of the said Act made suitable
inquiries and finding that Respondent No. 1 had absented himself at the meetings held during the period of four months issued a notice on 4th April
1964 calling upon him to show cause why he should not be disqualified as a Councillor of the Municipality u/s 28(1)(d) of the old Act. Pursuant to
that notice he appeared and presented his statement before the Collector. In an inquiry held by the Collector of Kaira it was found that he had
absented himself from attending the meetings held on 29-12-62 28 28 and 22-4-63 by the Municipal Borough of Nadiad during the period of four
successive months without the leave of the Municipality and declared him as disqualified and that way disabled from continuing as a Councillor of
the said Municipality u/s 28(1)(d) of the old Act. He further declared his office having fallen vacant. At that time the Respondent No. 1 was the
President of the Municipality of Nadiad and as he ceased to be the Councillor he ceased to be the President of the Municipality from the data of
the order viz. from 20-5-64. Aggrieved by that order of the Collector of Kaira Respondent No. 2 the first Respondent preferred an appeal under
Sub-section (2) of Section 28 of the old Act to the State Government. The explanation of the Respondent No. 1 both before the Collector as also
before the State Government was that in respect of the two meetings which were held on 29th December 1962 and 28th January 1963 he could
not attend as he did not know about the same as he was not served personally with the notice of those meetings as required u/s 35 of the old Act.
It could not therefore be held that he absented at the meeting held during the four successive months from 29-12-62 to 29-4-63. That contention
was not found favour with by the Collector who on a consideration of the materials before him found that notices were served on his brother Sri
K.M. Shahs and that the respondent No. 1 had known about the meetings to be held of those two dates. In the appeal filed by Respondent No. 1
before the State Government u/s 28(2) by its order dated 13th August 1964 it was held that service of the notices of those two meetings referred
to above on Mr. K.M. Shah was not proper service as contemplated u/s 35 of the Act and that Respondent No I cannot therefore be said to have
knowledge about the holding of those two meetings during that period of four months. His absence at those two meetings cannot therefore be
taken into account to disqualify him from continuing as a Councillor of the Nadiad Borough Municipality. The State Government therefore allowed
his appeal and set aside the order of the Collector of Kaira. It is against this order of 18-8-64 passed by the Government of Gujarat acting u/s
28(2) of the Act that the original applicant Shri Punjabhai Dahyabhai Patel has come to this Court praying for an appropriate writ for quashing the
said order under Articles 226 and 227 of the Constitution of India inter alia alleging that he was interested in the decision of the appeal and as such
a party to the dispute in appeal and since no opportunity was given to him to present his case by giving any notice or information about the appeal
the State Government had violated the principles of natural justice to an extent that the order must be quashed and further that the order on merits
passed by the State Government was also illegal and bad requiring this Court to quash the same.
It is common ground that the Respondent No. 1 did not attend the four meetings of the Borough Municipality of Nadiad held on 29-12-62 28
28 and 22-4-63 and that the period of his absence counted from 29-12-62 to 28-4-63 comes to four consecutive months. No permission was
obtained by him for remaining absent on any of those meetings from the Municipality. The dispute so far merits of the matter go centres round the
fact as to whether the service of notice of those two meetings of 29-12-62 and 28-1-63 effected on his brother Mr. K.M. Shah was proper
service required u/s 35 of the old Act and if not whether he knew about the same before hand so as to require him to attend the meetings. It is
unnecessary to go into that matter for according to Mr. C.T. Daru appearing on behalf of the petitioner the proceedings and the order passed by
the State Govt, in appeal were liable to be quashed inasmuch as it has violated the principles of natural justice in not giving the petitioner an
opportunity to appear or to state his case before it before quashing the order of the Collector passed against Respondent No. 1. On the other
hand Mr. A.H. Mehta appearing on behalf of the Respondent No. 1 urged that since the Bombay Municipal Boroughs Act 1925 is repealed by
Gujarat Municipalities Act 1963 and as by reason of Section 279(2) of the new Act the Respondent No. 1 has been holding office of a Councillor
with effect from 1 -1-65 question regarding his disability under the old Act cannot be considered as no effective order in such a petition before us
is possible to be passed and more so as the pending proceedings are not saved thereunder. According to him he has ceased to be a member of the
then Borough Municipality and he has been holding office of a Councillor under the new Act with effect from 1-1-65 so that he would be governed
by the new Act and that any order passed in this petition would be infructuous and ineffective and therefore no orders should de passed by this
Court. Before however considering Mr. Mehtas submission in that direction it is essential first to determine as to whether the order passed by the
State Govt, is such which is liable to be quashed as contended by the learned advocate for the petitioner. In the affidavit filed by the Under
Secretary of the Govt, of Gujarat Panchayats and Health Department as also in the affidavit filed by Respondent No. 1 various contentions have
been raised. According to them the proceedings before the third Respondent i.e. the State Govt, were of an administrative character and were not
before a judicial or a quasi-judicial tribunal so as to require it to give notice of hearing of the matter before it. Besides this petitioner was in no way
a party to that appeal and that there existed no lis between him and Respondent No. 1 inasmuch as no disputes or rights between them were to be
adjudicated upon. He had therefore no right to be heard and there was thus no violation of any rule of natural justice so as to require this Court to
quash that order of the State Government.
The challenge is that the order of the State Government is null and void in asmuch as rules of natural justice are violated as the petitioner who
can be easily said to be an interested or an aggrieved party in the matter having not been even informed of the hearing of the appeal or given any
opportunity of being heard or even presenting his case before setting aside the order passed by the Collector affecting Respondent No. 1 before
us. The State Govt, was an appellate authority constituted u/s 28(2) of the old Act against the orders passed by the Collector u/s 28(1) of the Act.
It had therefore to act fairly and judicially and not in an administrative capacity. In was acting obviously as a quasijudicial body and therefore one
has to presume that such a body or an officer has to respect the fundamental rules of natural justice and that presumption can only stand rebutted
by express words used to the contrary by the Legislature in the Act or inferred by necessary implication. This view of ours finds support from a
decision of the Division Bench of this High Court in a case of Ramji v. Manilal reported in 1 G.L.R. p. 53 (1960). In that case a voter of Baroda
had filed an application against one B the Municipal Councillor alleging that he had incurred disqualification to continue as a member of the
Municipality u/s 12(2)(b) of the Bombay Municipal Boroughs Act. After hearing the parties the Collector of Baroda held that the petitioner had
incurred disqualification. Against that order B preferred an appeal to the State of Bombay u/s 28(2) of the old Act. The State Government without
issuing any notice to the petitioner allowed the appeal and set aside the order of the Collector of Baroda. It was against that order of the
Government that the petitioner filed a Special Civil Application in the High Court claiming that the Government had violated the fundamental
principles of natural justice. That was resisted on the ground that though the function of the Government was of a quasi-judicial nature it was not
bound to hear the party at every stage of the proceedings. It was further contended that the rule was applicable only to the appellant and the
advantage of the rule could not be taken by the respondent. On those facts it was held that in the first instance the presumption was that the
Legislature intended to respect the rules of natural justice and if the contention is that the rule was intended to be abrogated then the provision must
be either express or necessarily implied. Their Lordships further held that there was nothing in Sub-section (2) of Section 28 of the old Act which
justified the submission that the Legislature intended that the rules of natural justice should be abrogated except in the case of a Councillor in
proceedings before the Collector. In the course of the judgment it has been further observed that though a quasi-judicial officer acting in his
appellate jurisdiction is not bound to give a personal hearing to the appellant he is bound to give an opportunity to the appellant to state his case.
This duty arises because as a quasi-judicial officer the appellate authority is bound to act fairly and to give an opportunity to each of the parties to
correct any prejudicial statements which have been made by the lower authority against it. It is therefore clear that the State Government passed an
order in appeal u/s 28(2) of the Act as a quasi-judicial authority and fundamental rules of natural justice are required to be followed in deciding
matters before it since they cannot be said to have been abrogeted by Legislature.
In the case before us that right is claimed by the petitioner who is said to be not affected by the order in the sense that question of
disqualification did not affect him personally. But if he is a person who can bel said to be interested in the decision of the matter he becomes an
aggrieved party if the order of the Collector is set aside. In the case of Ebrahim Aboobakar v. Custodian General of Evacuee Property (1952) 3
S.C.R. 696 such a point came to be considered and it was held that a person aggrieved of a decision is a person claiming to be interested in the
inquiry. In that case one Tekchand was the first informant on the basis of whose information a notice to show cause as to why a particular property
could not be held as an evacuee property was issued by the Custodian of Evacuee Property. The informant was not heard in the matter and it was
held that the Custodian was bound to hear him on truth and validity of information given by him. The Supreme Court in that case further observed
that any person who makes an application to a Court for decision or any person who is brought before a Court to submit to a decision if the
decision goes against him would become an aggrieved party by that decision. The case of Ramji v. Manilal Solanki referred to here above also lays
down a similar principle. In that case a voter had moved the Collector for disqualifying a person by reason of certain disqualifications contemplated
in Section 12(2) of the Act and he was considered to be a proper person interested in the decision of the matter. It was pointed out that a lis or a
dispute arose between the parties and if in that dispute any order happened to be passed obviously that person who had taken the trouble of
making the allegations and of adducing evidence and spent his time and energy in proving the allegations cannot be regarded as a stranger to the
proceedings. In the case before us the petitioner in fact had submitted an application for making necessary inquiry and determining the question as
to the disqualification of Respondent No. 1. He had also sent materials in suport of his application to the Collector. In other words he was a
person interested in the final decision of that application and had as much right to state his case before the State Government when the order
passed against Respondent No. 1 was to be set aside by the State Government while hearing the appeal against the decision of the Collector u/s
28(2) of the Act. Such a person can therefore be said to be an aggrieved party who is entitled to claim the right to state his case before the State
Government. He becomes the respondent as it were and that way has atleast as much right to be heard and to state his own case and to meet the
case made out in the memo of appeal as the appellant has a right of stating his case against the impugned order of the lower authority. In fact if the
appellate authority were to decide the appeal without giving a notice to the respondent then the appellate authority would be violating another and
equally important limb of the said principles which states that no adverse order shall be passed against any person without that person being given
an opportunity of being heard. In other words it is not only the appellant before the State Government who was affected by the order of the
Collector was required to be given hearing or at any rate an opportunity to state his case but that the other side viz. the petitioner before us who
had actually moved the Collector for taking up the matter and inquire as to the disqualification being incurred by Respondent No. 1 under the
provisions contained in Section 28(1)(d) of the Act had a similar right to state his case.
In our view therefore the State Government while exercising its power of hearing an appeal under a Statute was a quasi-judicial authority and
that it had a duty cast upon it to act judicially. Such a duty inherently requires any such quasi-judicial authority even to give each of the parties to a
dispute an opportunity of adequately presenting his case before any decision is given. That right of being given an opportunity of hearing is to both
sides and a person such as the one in the present case before us was interested in the decision of the matter by reason of his being a person
complaining or moving the appropriate authority to decide the matter apart from his being interested in the matter as a Councillor of the
Municipality of which the person proceeded against was a Councillor of the same Municipality.
It is also clear that no such notice of hearing of the appeal was issued to this petitioner and no opportunity was given to him to state his case
before disposing of the appeal by the State Government. In those circumstances it is obvious that the rules of natural justice were ignored and
violated by the State Government while deciding the appeal before it u/s 28(2) of the old Act. Now a writ as prayed for by the petitioner cannot
be issued by Court acting under Articles 226 and 227 of the Constitution of India merely because the decision is wrong; but if the order passed by
the lower authority is passed without jurisdiction or its having acted in excess of its jurisdiction or in violation of principles of natural justice it cannot
be allowed to stand and must be quashed by issuing appropriate writ in a matter. That principle has been laid down in Ebrahim Aboobakars Case
by the Supreme Court referred to hereabove. That principle has been further elaborated in a case of T.P. Kumaran v. R. Kothandaraman (1962)
3 G.L.R. 856 by a Division Bench of this Court. It has been held in that case that it would be the duty of the superior Court to interfere and correct
the error of the Court or tribunal of the first instance irrespective of the fact that an appeal was not resorted to or even if it had been resorted to the
order was confirmed. Though every defect in a proceeding does not make the order of the authority of the first instance a nullity but the defect
must be concerning either want of jurisdiction or a patent violation of the principles of natural justice such as want of notice or inquiry to render an
order null and void. It is therefore clear that the order passed by the State Government violating the fundamental principles of natural justice is a
nullity. A superior Court in exercising the powers under Articles 226 and 227 is therefore, justified in interfering with such an order and correcting
the error made by the State Government while acting as an appellate authority under the provisions contained in Section 28(2) of the old Act.
That, takes us to the main point urged by Mr. Mehta learned advocate appearing for Respondent No. 1 before us. His contention was that in
view of the repeal of the old Act u/s 279(1) of the new Act and having regard to Sub-sections (2) and (3) thereof the Respondent No. I is no
longer a Councillor of the Municipality of Nadiad under the old Act and that such a Municipality no longer exists. According to him the
Municipality would be governed by provisions of the new Act with effect from 1-1-65 and he becomes a Councillor by reason of the deeming
provisions contained in Section 279(3) of the new Act. What we are concerned with at present in this proceeding before us is as to the legality or
otherwise of the order passed by the State Government acting as a quasi-judicial body while hearing the appeal against the order of the Collector
passed u/s 28(1) of the old Act. If that order is found to be bad and violative of the principles of natural justice as stated hereabove such an order
cannot be allowed to stand. In doing so it would hardly be proper for us to look as to what the effect of the provisions of the new Act would be
and it is unnecessary to express any opinion in that respect. If the State Government were to find that no appeal is competent or that the State
Government cannot hear and decide the appeal in view of the provisions of the new Act now the order that we propose to pass in this matter
would revive the order passed by the Collector on 20th May 1964. If on the other hand an appeal can be heard and decided by the State
Government by reason of the applicability of the provisions contained in the General Clauses Act or the like it is open to the State Government to
consider the same and decide the appeal in accordance with law. In any view of the case therefore the order that is being passed by us would not
be such as it would have no effect whatever. The order would be merely to quash and set aside the order of the State Government. We shall
however refrain from giving any further directions in the matter. The order would not thus be infructuous or ineffective and since we find that the
order is bad by reason of the same being violative of the principles of natural justice it cannot be allowed to stand and shall have to be quashed.
We therefore quash and set aside the order passed by the State Govern-ment in appeal against the order passed by the Collector on 20th May
1964. Respondent No. 1 shall pay the costs of the petitioner. Office to issue the minutes of the order to both sides.