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2000 DIGILAW 326 (GUJ)

RAGHUBHAI M. DESAI v. VINAY VHAS,ias

2000-04-20

J.N.BHATT

body2000
J. N. BHATT, J. ( 1 ) WHETHER removal of petitioners from the office of councillors of Ghatlodiya Nagarpalika by the order of respondent No. 1, Director of Municipalities, dated 3. 3. 1999, in exercise of powers, under Section 37, of the Gujarat Municipalities Act, 1963 (`the Act for short) on the ground of irregularities and indulging in giving employment to the close relatives, without any procedure and unauthorisedly, is short, but significant question which has been raised before this court in this petition under Article 226 of the Constitution of India. ( 2 ) A few material facts giving rise to this petition are narrated. At the outset, the petitioners were councillors of Ghatlodiya Nagarpanchayat and petitioner No. 1 was the President, at the relevant time, whose term expired long before and the terms of membership i. e. office of councillors expires around December this year, as stated at the Bar. The respondent is the Director of Municipalities who had initiated proceedings under Section 37 of the Act by issuing notice dated 12. 1. 1999. One notice was addressed to the President and the Member, petitioner No. 1 and the second notice of the same date was served on other petitioners. Show cause notice under Section 37 was replied. Written submissions were made. After considering the facts and circumstances and exercising the powers under Section 37 of the Act, respondent No. 1, Director of Municipalities passed the impugned order on 3. 3. 1999 holding that the petitioners are guilty of misconduct in the discharge of their duties and indulgence in irregularities which is under challenge in this petition. ( 3 ) SECTION 37 empowers the State Government to remove from office councilor, any President or Vice President of the Municipality. Respondent No. 1 has exercised powers under Section 37 of the Act. 1999 holding that the petitioners are guilty of misconduct in the discharge of their duties and indulgence in irregularities which is under challenge in this petition. ( 3 ) SECTION 37 empowers the State Government to remove from office councilor, any President or Vice President of the Municipality. Respondent No. 1 has exercised powers under Section 37 of the Act. Section 37 of the Act, therefore, may be considered at this stage which reads thus:-" (1) The State Government may remove from office: (a) any councillor of a municipality (on its own motion or on receipt of a recommendation of the municipality in that behalf supported by a majority of the total number of the then councillors of the municipality, or (b) any president or vice president of municipality,if, after giving the councillor, president or as the case may be vice-president an opportunity of being heard and giving due notice in that behalf to the municipality after making such inquiry as it deems necessary, the State Government is of the opinion that the councillor, president or as the case may be, vice president has been guilty of misconduct in the discharge of his duties or of any disgraceful conduct or has become incapable of performing his duties under this Act. (2) A president or vice president removed under sub-section - (1) shall not be eligible for re-election as a president during the remainder of the term of the municipality. " ( 4 ) IT could very well be visualised from the aforesaid provisions that after making enquiry, if the State Government is satisfied that: (i) the councillor or Vice President or President of the Municipality has been guilty of misconduct in discharge of his duties or (ii) any of the disgraceful conduct or (iii) has become incapable of performing his duties (iv) a President or Vice President removed under sub-section (1) shall not be eligible for re-election as President during the remainder term of the municipality. The impugned order of removal of the petitioners has been recorded by the respondents in exercise of statutory powers. ( 5 ) THE learned advocate for the petitioners, Mr. The impugned order of removal of the petitioners has been recorded by the respondents in exercise of statutory powers. ( 5 ) THE learned advocate for the petitioners, Mr. Lathigara, has questioned the impugned order and has raised the following contentions: (i) that it is in breach of principles of natural justice; (ii) that it is a non-speaking order; (iii) that material documents relied on were not supplied to the petitioners; (iv) that the reply given by the petitioners in response to the show cause notice is not considered; (v) that it is based on conjectures and surmises, in absence of any clear evidence. (vi) that the enquiry as contemplated under Section 37 of the Act is not done. ( 6 ) THE aforesaid contentions have been seriously countenanced by the learned Government Pleader Mr. A. D. Oza and he has raised also further submissions: (i) that the enquiry as contemplated under Section 37 of the Act was conducted; (ii) that there was no breach of the principles of natural justice; (iii) that the impugned order is justified; (iv) that the petitioners appointed their near and dear and close family members in the municipalitys service without any resolution, sanctioned strength, permission of the Government and any public advertisement and that such an exercise is nothing but misconduct on the part of the councillors who are petitioners before this court and therefore the impugned order is fully justified. ( 7 ) BOTH the learned counsel have been heard at great length. Case laws relied on by them have been dispassionately examined. The record is also examined and analysed and following contours and chronicles have remained unavoidable: (i) that the petitioners are the councillors of Ghatlodiya Nagarpalika and respondent No. 1, IAS Officer, Mr. Vinay V. Shah, was director of Municipalities. (ii) that respondent served show cause notice to the petitioners for giving employment and appointing casual labourers; (iii) that at the time of show cause notice under Section 37 of the Act, 10 labourers and daily wagers were working who are appointed by the petitioners. The notice as well as the impugned order show the relationship of the petitioners with the employees engaged by them.