Gujarat HC Says There Must Be An Application Of Mischief Rule Where Literal Interpretation Of A Provision May Defeat The Legislative Intent

- Advertisement -

Facts of the Case

The Petitioner filed a petition under Article 226 of the Constitution of India, praying mainly, that the Hon’ble Court admit and allow the petition, and issue writ of mandamus or any other writ, order or direction in the nature of same and ask the said Respondents to convene a Special General Meeting for passing the “motion of no confidence” as requisitioned by the Petitioner and other two members in 2019 within a period of 7 days.

The Petitioner Submitted that general election of Patan District Panchayat was held in December 2015. The total strength of the members of the Patan District Panchayat is 32 out of which 22 members are elected on the symbol of Indian National Congress party and 10 members are elected on the symbol of Bharatiya Janta Party, further that in every district panchayat under the Gujarat Panchayats Act (Hereinafter “Act”), The motion of no-confidence can be moved against the President and Vice-President after following procedure prescribed under the Act.

Further, the District Panchayat shall constitute such other committees to discharge the functions e.g. Public Works Committee. That the procedure for meetings of such committees is the same as provided for the meetings of the District Panchayat. The Rules provide for passing of no-confidence motion against the Chairman of a Committee of the District Panchayat. It is submitted that from the scheme of the Act and Rules framed thereunder it can be said that the motion of no confidence can be moved against the Chairman of a Committee of the District Panchayat. In this case, the Petitioner under the Public Works Committee had moved a requisition of the passing of no confidence against the Chairman of the said Committee, of the District Panchayat constituting of five members, out of which three members include the Petitioner. Such request was moved in 2019, and the Secretary of the said Committee issued a communication to the Chairman of the said Committee and asked him to call Special General Meeting within a period of 15 days as per the provisions contained in Rule. However, this was not done. That the Additional Development Commissioner is the competent authority who can call the meeting for the purpose of no confidence, but even after the due submission of the report, there is no decision taken by the said Commissioner.

- Advertisement -

(Note: Literal interpretation in interpreting the provision of a statute, would be looking at the plain simple meaning of the words and inferring the legislative intent. Mischief Rule/Interpretation is the rule where the “mischief” is identified which the statute is trying to correct and hence statute interpretation happens in this light)

Issues before the Court

Whether, in absence of any specific provision contained in the Act for removal of the chairman of Public Works Committee or for moving of no-confidence motion against the Chairman of such committee, any direction can be issued for convening the meeting or not? Further, who is the competent authority to call a meeting after the receipt of the requisition by the members of the said committee?

Arguments

On the contrary to the submissions made by the Petitioner, the respondent submitted that there is no specific provision in the Act for removal of the chairman of Public Works Committee or for moving a no-confidence motion against the chairman of the Committee and so no direction can be issued to the respondent authority for convening the meeting. However, it was also submitted that as there is no provision in the Act, the issue is referred to the Development Commissioner and the Development Commissioner has till date not taken any decision and therefore this petition may not be entertained.

Decision of the Court

- Advertisement -

The High Court primarily observed the case in relation to section 84(4) of the Act, in particular, the term “Shall” used in the said Sub-section for the purpose of calling the meeting of the no-confidence motion. The Court observed “The Legislative intent has to be gathered from the attending provisions and the entire scheme of the Act with special focus on the provisions contained for convening a meeting for considering a no-confidence motion… strict and rigid interpretation of the term “Shall” would lead to a situation where the President of the Panchayat against whom such a motion is sought to be moved may issue a notice calling such a meeting within the prescribed time of 15 days but may fix the date of actual meeting after a distant point of time. Such a situation is neither envisaged by the Legislature nor would be conducive of clean administration of panchayat through the democratic process. Such mischief cannot be permitted by adopting strict interpretation. That the Court was of the view that the motion of no confidence can be moved against the Chairman of even Public Works Committee and that the appropriate authority would be the Development Authority.

[googlepdf url=”https://libertatem.in/wp-content/uploads/2020/01/Gujarat-HC-Says-There-Must-Be-An-Application-Of-Mischief-Rule-Where-Literal-Interpretation-Of-A-Provision-May-Defeat-The-Legislative-Intent.pdf” download=”Download Judgement PDF” width=”100%” height=”900″]

Contribute stories like this and help us spread awareness for a better society. Submit Your Post Now. You can also join our Team of Courtroom and regularly contribute cases like the above one.

For more Courtroom Updates, check out our Courtroom Page

- Advertisement -
- Advertisement -

LEAVE A REPLY

Please enter your comment!
Please enter your name here

This site uses Akismet to reduce spam. Learn how your comment data is processed.

About the Author

Dhwani Pandya
Dhwani Pandya is the Vice President for Editorial Operations at Libertatem Magazine. She has been a wonderful author and an editor for law content since 2019. Human Rights, International Law and Media Laws are her area of interest.
- Advertisement -
- Advertisement -spot_img