Research › Search › Judgment

Gujarat High Court · body

2009 DIGILAW 760 (GUJ)

VIRBALABEN GIRISHBHAI TRIVEDI v. STATE OF GUJARAT

2009-12-17

M.S.SHAH, SUDHANSU JYOTI MUKHOPADHAYA

body2009
Judgment MOHIT S. SHAH, J. The appeals arising from the interlocutory order dated 4-12-2009 of the learned Single Judge in the captioned Special Civil Applications challenging the order dared 20-7-2009 of the Director of Municipalities removing the appellants from the offices of the President and 14 Councillors of Padra Municipality in Baroda district under Sec. 37 of the Gujarat Municipalities Act, 1963 (hereinafter referred to as "the Act") were heard for sometime, but in view of the nature of the controversy involved and the fact that the elections are declared to fill in the vacancies consequent upon removal of the appellants from the above office, with consent of the learned Counsel for the parties, the Special Civil Applications as well as the appeals were taken up for final disposal. 2. We heard Mr. K. S. Nanavati, learned Senior Advocate for the appellants, Mr. Prakash K. Jani, learned Government Pleader for the State of Gujarat and the Director of Municipalities, Mr. Nilay V. Anjaria, learned Counsel for the State Election Commission and Mr. 1. M. Barot for respondent No.4. 3. The orders of removal under Sec. 37 of the Act came to be passed against the appellants on the ground that the appellants had signed the circular Resolution dated 12-4-2006 for awarding contract to M/s. Dayal Builders for laying down drainage lines in Padra town. After giving the show-cause notice dated 28-7-2008 and opportunity of hearing to the appellants, in exercise of the powers under Sec. 37 read with Sec. 278A of the Act, the Director of Municipalities gave findings that there was no provision in the Act empowering the general body of the Municipalities to take any decision by passing a circular resolution, that such decision can only be taken at the general meeting, that the tender of Dayal Builders was accepted without following the proper procedure and that the circular resolution of the Municipality was also set aside by the Collector under Sec. 258 of the Act. After giving the above findings, the Director of Municipalities arrived at the following conclusion in his order dated 20-7-2009 : "Thus, the President of the Municipality and the members who consented to the circular resolution have shown the grave negligence in discharging their duties by passing the resolution under the provisions of the Act as well as causing financial loss and indulging into illegal activities. Hence, action is to be taken for breach of Sec. 37(1) against the appellants who gave consent to the circular resolution." 4. At the hearing of Special Civil Applications, Mr. K. S. Nanavati, learned Senior Advocate for the appellants invited our attention to the provisions of Sec. 37 of the Act and submitted that a person can be removed from the office of President/Councillor of a Municipality only if the State Government or its delegate is of the opinion that the President/Councillor has been guilty of misconduct in the discharge of his duties or any disgraceful conduct or has become incapable of performing duties under the Act. It is submitted that none of the three conditions indicated in the statutory provision is satisfied, and therefore, the impugned order dated 20-7-2009 is not only contrary to the provisions of the Act, but also destructive of the democracy at the grass-root level. 5. Mr. Prakash K. Jani, learned Government Pleader made a valiant attempt to defend the order but was not in a position to indicate any finding given by the Director of Municipalities satisfying any of the three conditions mandated by Sec. 37(1) of the Act, which reads as under : "37. 5. Mr. Prakash K. Jani, learned Government Pleader made a valiant attempt to defend the order but was not in a position to indicate any finding given by the Director of Municipalities satisfying any of the three conditions mandated by Sec. 37(1) of the Act, which reads as under : "37. Removal from office :- (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 a Municipality, If, after giving the Councillor, President or as the may be, Vice-President an opportunity or being heard and giving due notice in that behalf to the municipality and 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." (Emphasis supplied) The learned Government Pleader, however, submitted that there is already a finding about the loss having been caused to the Municipality by the negligent act on the part of the appellants indulging, into illegal activities and that the orders are also passed against the appellants under Sec. 70 of the Act, which are challenged by the appellants before the District Court by way of the statutory appeal. Section 70 of the Act reads as under : "70. Liability of Councillors for mis-application :- (1) Every Councillor shall be personally liable for the misapplication of any fund to which he shall have been a party, or which shall have happened through or been facilitated by gross neglect of his duty as a Councillor : Provided that no Councillor shall be personally liable in respect of any contract or agreement made, or for any expense occurred by, or on behalf of the municipality; the funds at the disposal of each municipality shall be liable for, and be charged with, all costs in respect of any contract or agreement and all such expenses. (2) If after giving the Councillor concerned a reasonable opportunity for showing cause to the contrary, an officer authorised by the State Government is satisfied that the Councillor was party to the misapplication of any fund of the municipality or that the misapplication is a direct consequence of misconduct or gross neglect on his part, the officer so authorised shall by an order in writing direct such Councillor to pay to the municipality before a fixed date, the amount required to be reimbursed to it for such misapplication. (3) If the amount is not so paid, it shall be recovered as an arrear of land revenue and credited to the fund of the municipality. (4) Any person aggrieved by the decision or action of the officer so authorised may within one month from the date of such decision or action apply to the District Court for redress of his grievance and that Court after taking such evidence as it thinks necessary may confirm, modify or set aside the order and also make such order as to costs as it thinks proper in the circumstances. " 6. On close reading of the provisions of Secs. 37 and 70, it appears that a mere irregularity or even an illegality in the discharge of duties or causing loss to the Municipality does not by itself empower the State Government or its delegate to remove a Councillor or President from the elected office. There must be a finding supported by evidence to show that the concerned Councillor or the President/Vice President of the Municipality has been guilty of misconduct in discharge of his duties or of disgraceful conduct or is incapable of performing his duties under the Act. It must be remembered that the President/Vice President or a Councillor of a Municipality holds an elected office and the order of removal of such elected representative cannot be lightly passed without giving a finding supported by evidence to show that one or the other conditions stipulated in Sec. 37(1) is satisfied. 7. It must be remembered that the President/Vice President or a Councillor of a Municipality holds an elected office and the order of removal of such elected representative cannot be lightly passed without giving a finding supported by evidence to show that one or the other conditions stipulated in Sec. 37(1) is satisfied. 7. Having heard the learned Counsel for the parties, we are of the view that on the basis of the material on record and the findings recorded by the Director of Municipalities in the impugned order dated 20-7-2009, it is not possible to hold that the Director as delegate of the State Government has come to a conclusion about the appellants having been guilty of misconduct or any disgraceful and incapable of performing their duties under the Act. In this view of the matter, and the request made by the learned Government Pleader not to give any detailed reasons in support of this conclusion, we allow the Special Civil Applications and quash and set aside the impugned order dated 20-7-2009 (Annexure-O to the petition) of the Director of Municipalities. As regards the request made by the learned Government Pleader to reserve the liberty to the Director of Municipalities to make a fresh inquiry against the appellants under Sec. 70 of the Act, we make it clear that only if the Director of Municipalities has any further material on the basis of which anyone of the conditions stipulated in Sec. 37(1) of the Act can be said to have been satisfied, it will be open to the Director to make such a fresh inquiry. 8. It is also clarified that the controversy about liability of the appellants under Sec. 70 of the Act is not the subject-matter of these petitions or the appeals and we may not be treated to have expressed any opinion on the controversy which is the subject-matter of the appeals pending before the District Court. 9. The impugned orders of removal passed under Sec. 37 having been quashed and set aside, there is no vacancy in the office of the President and Councillors of Padra Municipality, and therefore, the question of holding elections to the office of Councillors of Padra Municipality does not survive. The State Election Commission shall accordingly not proceed with the election process insofar as the same was commenced pursuant to the impugned orders dated 20-7-2009. 10. The State Election Commission shall accordingly not proceed with the election process insofar as the same was commenced pursuant to the impugned orders dated 20-7-2009. 10. The petitions are allowed in the aforesaid terms. 11. Since, the petitions themselves have been disposed of the appeals against the interlocutory order do not survive and are disposed of as infructuous. The Civil Applications in the appeals are also disposed of as infructuous. (SBS) Petitions partly allowed.