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2011 DIGILAW 306 (GUJ)

Hasmukhbhai Mavjibhai Vaniya v. State Of Gujarat

2011-04-08

J.B.PARDIWALA, SUDHANSU JYOTI MUKHOPADHAYA

body2011
Judgment J.B.PARDIWALA, J. ( 1. ) THE appellant-original writ petitioner by way of this appeal calls in question legality, validity and propriety of the order passed by learned Single Judge dated 18.11.2010 dismissing Special Civil Application No.10331 of 2010 only on the ground of delay without going into various other contentions raised by the appellant-original writ petitioner. ( 2. ) FACTS relevant for the purpose of deciding this appeal can be summarized as under: The appellant-original petitioner is an elected member of Bavla Nagar Palika. The general elections of Bavla Nagar Palika were held in the year 2008. After the general elections were over, first meeting has to be convened as provided under Section 32 of the Gujarat Municipalities Act, 1963 (for short the Act). In this particular first general meeting after general election to a municipality, the President and the Vice-president are elected. This meeting is presided over by the Collector or such officer as the Collector may by order in writing appoint in this behalf. It would be appropriate to quote Section 32 of the Act, which reads as under: 32.Election of President and Vice-President.- [(1) After a general election to a municipality the Collector shall call the first general meeting of the municipality for the election of the President and the Vice-President within the prescribed period.] (2) The meeting called under sub-section (1) shall be presided over by the Collector or such officer as the Collector may by order in writing appoint in this behalf. The procedure of the meeting shall be as prescribed by rules made by the State Government and the Collector or such officer shall have such powers as may be prescribed by the said rules but shall not have the right to vote. (3) No business other than the election of the president and the vice-president shall be transacted at such meeting. (4) If in the election of the president or the vice-president there is an equality of votes, the result of the election shall be decided by lot to be drawn in the presence of the Collector or the officer presiding in such manner as the Collector or as the case may be, the officer may determine. ( 3. ) IN the present case, the first meeting was convened on 5.3.2008. IN the said meeting President was elected and the Vice-president was also elected. ( 3. ) IN the present case, the first meeting was convened on 5.3.2008. IN the said meeting President was elected and the Vice-president was also elected. Section 33 of the Act provides for the term of office of the President of a municipality and the term as provided under Section 33 is two and a half years. Accordingly, the President was elected for a term of two and a half years. Under the amended Section 33 of the Act, there is no term prescribed so far as office of the Vice-president is concerned. However, on that particular date, i.e. on 5.3.2008, general body of the municipality passed a resolution bearing no.65 resolving that the term of the elected Vice-president shall be two and a half years. It appears from the record that at the relevant point of time when this resolution was passed there was some opposition. One of the persons, who opposed fixing of the term of two and a half years for the office of the Vice-president, is the appellant herein. However, by majority the resolution was passed. Accordingly, the term of the President as well as the Vice-president was fixed for two and a half years. It also deserves to be noted that after this resolution was passed on 5.3.2008, no steps were taken by the appellant-original writ petitioner to challenge the same. IN the meantime, as the period of two and a half years was coming to an end. Collector, Ahmedabad, once again passed an order dated 26.8.2010 for convening the meeting of Bavla Nagar Palika for holding election of the Vice-president on 4.9.2010. It is only when this decision was taken by Collector, Ahmedabad, to convene the meeting for the purpose of holding election of the Vice-president as the term of two and a half years was coming to an end that the appellant herein once again raised an issue that there was no reason for the Collector to hold the election of the Vice-president as the term of the Vice-president of the Nagar Palika would be co-extensive with the term of Nagar Palika. ( 4. ) THE appellant, therefore, thought fit to prefer Special Civil Application No.10331 of 2010 challenging the order dated 26.8.2010 issued by Collector, Ahmedabad, for convening the meeting of Bavla Nagar Palika for holding election of the Vice-president on 4.9.2010. ( 4. ) THE appellant, therefore, thought fit to prefer Special Civil Application No.10331 of 2010 challenging the order dated 26.8.2010 issued by Collector, Ahmedabad, for convening the meeting of Bavla Nagar Palika for holding election of the Vice-president on 4.9.2010. Learned Single Judge took notice of the fact that the ground on which the petition came to be preferred was available with the appellant in the year 2008 itself when resolution no.65 was passed. Learned Single Judge took the view that if the appellant-original writ petitioner is aggrieved by the fact that term of the office of Vice-president cannot be two and a half years but it is co-extensive with the term of Nagar Palika then he ought to have challenged the decision in the year 2008 itself. Having accepted the resolution, though of course with an objection, the appellant never thought fit to challenge the same and when time came to elect the Vice-president in the year 2010, i.e. after expiry of two and a half years, the appellant has raised the same issue again. Learned Single Judge, therefore, took the view that the appellant-original writ petitioner was not entitled to any relief as the petition deserved to be thrown out only on the ground of delay. ( 5. ) WE are of the view, having regard to the peculiar facts and circumstances of the case, that learned Single Judge did not commit any error in not entertaining the petition on the ground of delay without going into the merits and we could have stopped here by dismissing the appeal confirming the order of learned Single Judge, however, having regard to a very vexed question of law involved in this matter, we have thought fit to examine the whole issue in detail so that there may not be any confusion in future till the legislature clarifies the whole issue by effecting appropriate amendments in the Act. ( 6. ( 6. ) IN this background the question of law, which we have been called upon to consider, is as under: Whether in absence of any specific term of office of Vice-president being provided under Section 33, Clause (1), Sub-clause (a) of the Act as provided for the President of a municipality, can it be said that the term of office of the Vice-president of a municipality shall be co-extensive with the term of Nagar Palika, i.e. for a period of five years, and whether in absence of any specific term being provided for the office of Vice-president of a municipality is the general body of municipality empowered to pass a resolution in its general meeting fixing a particular term of the office of Vice-president of a municipality? Before we deal with this question of law, it would be appropriate to state the position of law prior to the amendment which was effected in the year 2000. ( 7. ) THE old Section 33 of the Gujarat Municipalities Act, 1963 was as under: 33. (1) Term of office of President and Vice-President - Save as otherwise provided in this Act, a president or vice-president shall hold his office for such term as the municipality shall, previous to his election determine, not being less than two years or the residue of the term of office of the municipality, whichever be less, and not exceeding [five years] and he shall be eligible for re-election: Provided that the term of office of such president or vice-president shall be deemed to extend to and expire with the date on which his successor is elected. ( 8. ) A bare reading of old Section 33 (1) of the Act makes it clear that there was a clear provision for the term of President as well as Vice-president of the Nagar Palika. However, Section 33 was amended by the Gujarat Act No.3 of 2000 and the amended Section 33, Clause (1) of the Act reads as under: 33. Term of office of President and Vice-President (1) (a) The term of office of the President of a municipality constituted upon the general election held after the commencement of the Gujarat Municipalities (Amendment)Act, 2000 shall be two and a half years. (b) The term of office of the President of a municipality existing on the commencement of the said Act, shall be one year. (b) The term of office of the President of a municipality existing on the commencement of the said Act, shall be one year. (c) Subject to the other provisions of this section, the President shall be eligible for re-election. From the above it is clear that though amended Section 33 refers to the term of office of President it is silent so far as term of office of Vice-president is concerned. Comparing both the Sections, old Sections 33 and the amended Section 33, learned counsel for the appellant has put forward following contentions: (i) The learned Single Judge has committed serious error in dismissing the petition on the ground of delay because the appellant-original writ petitioner had raised an objection against the resolution no.65 by which the term of Vice-president was fixed for two and a half years. It is further submitted that the learned Single Judge ought to have considered the fact that the said resolution was sent to the Collector by the Chief Officer of the Bavla Municipality for the purpose of approval and the Collector ought to have held the resolution ultra vires the legal provision of Section 33 of the Act. The grievance of the appellant is that no steps were taken by the Collector in this regard. (ii) The second contention is to the effect that earlier Section 32, Clause (3) of the Act empowered the authority to transact determination of the term of office of the President and Vice-president and the election of the President and the Vice-president in the meeting as contemplated under Section 32 of the Act. However, Section 32 (3) was amended in 1993 and the amended Section 32 (3) now empowers only transaction to election of the President and the Vice-president at such a meeting. The contention appears to be that in view of the amended Section 32, Clause (3), there is no power now with the authority, i.e. the Collector or the general body of the municipality to fix the term of office of the President and the Vice-president. (iii) Learned counsel would also contend that resolution no.65 dated 5.3.2008 violates Circular No.NPL/452000/365/M dated 17.12.2002 by which the Government has issued some guidelines that in absence of any specific term being provided under the Act for the office of Vice-president the term shall now be co-extensive with the term of the Nagar Palika. (iii) Learned counsel would also contend that resolution no.65 dated 5.3.2008 violates Circular No.NPL/452000/365/M dated 17.12.2002 by which the Government has issued some guidelines that in absence of any specific term being provided under the Act for the office of Vice-president the term shall now be co-extensive with the term of the Nagar Palika. Note: We shall deal with this circular referred to in this contention at a latter stage, as it also assumes some importance insofar as the controversy is concerned. (iv) Learned counsel would also contend that Section 275 of the Act provides that the municipality may pass resolution, which are not in consistent with the Rule/Circular made by the Government. The contention is that resolution no.65 dated 5.3.2008 is in direct conflict with the circular of 2002 issued by the State Government and it violates the provision of Section 275, Clause (4) of the Act. (v) Learned counsel would further contend that the decision of Collector, Ahmedabad, vide order dated 26.8.2010 calling for a general meeting on 4.9.2010 for election of the office of Vice-president is clearly violative of the order issued by respondent no.1 vide Circular dated 17.12.2002, by which all the Nagar Palikas of the Gujarat State have been directed to fix the term of Vice-president of Nagar Palika co-extensive with the term of Nagar Palika. (vi) Last contention on behalf of the appellant-original writ petitioner is that the provisions of Section 271 of the Act has also been violated which says that a municipality shall make Rules not inconsistent with the Act and the Rules or order made by the State Government under the Act and may from time to time alter or rescind them. According to counsel passing of resolution no.65 dated 5.3.2008 is inconsistent with the order made by the State Government in the form of Circular dated 17.12.2002 issued by the Urban Development and Urban Housing Department. ( 9. ) CONTENTIONS on behalf of the State and the Chief Officer of Bavla Nagar Palika are as under: (i) Learned Single Judge has not committed any error much less an error of law and the original writ petition has been rightly dismissed by the learned Single Judge. ( 9. ) CONTENTIONS on behalf of the State and the Chief Officer of Bavla Nagar Palika are as under: (i) Learned Single Judge has not committed any error much less an error of law and the original writ petition has been rightly dismissed by the learned Single Judge. (ii) It has been submitted that the appellant-original writ petitioner is not entitled to any discretionary relief considering the fact that though resolution was passed way back in 2008 it was not challenged at any point of time and it is only after a period of two and a half years when time again came for election of the Vice-president and fixing the term of the Vice-president that the appellant has once again raised this issue. (iii) It is further submitted that the general body of municipality has the discretion of fixing term of the Vice-president of two and a half years, as a particular period has not been prescribed under the amended Section 33 of the Act. It is submitted that the matter would stand on a different footing if general body of municipality itself has not resolved for fixing the term of the Vice-president at the time of election. It may be that the term may be treated as co-extensive with the term of the municipality but in the present case as specific term was provided by the general body at the time of election, no illegality can be said to have been committed. 13.1 Reliance has been placed heavily on a Division Bench judgment of this Court reported in 2005 (3) GLH 557 in the matter of Mukundkumar Trikambhai Chauhan v. State of Gujarat and one unreported judgment of learned Single Judge of this Court dated 5.7.2006 in Special Civil Application No.11254 of 2006. ( 10. ) HAVING regard to the question of law involved in this appeal, the rival contentions of the respective counsels of the parties and facts of the case, we are of the view that the challenge of the appellant-original writ petitioner so far as issue is concerned must fail. Before we go into merits of the issue, we would like to take note of the circular issued by the State Government in its Urban Development and Urban Housing Department dated 17.12.2002 bearing no.NPL/452000/365/M. Plain reading of this circular makes the entire picture clear. Before we go into merits of the issue, we would like to take note of the circular issued by the State Government in its Urban Development and Urban Housing Department dated 17.12.2002 bearing no.NPL/452000/365/M. Plain reading of this circular makes the entire picture clear. This circular says that Section 32, Clause (1) has been amended by Gujarat Act No.3 of 2000 with effect from 3.12.1999 and the amended Section 33 is absolutely silent so far as providing for term of office of Vice-president of a municipality is concerned. The circular further says that ordinarily a general body of the Nagar Palika in its first meeting after general election fixes the term so far as office of Vice-president is concerned, but experience is otherwise that sometimes the general body in its first meeting does not fix the term of the office of Vice-president and that results into lot of confusion. The circular clarifies that as there is no specific term being provided so far as the office of Vice-president is concerned, the same shall be considered to be co-extensive with the term of the Nagar Palika. In our view the circular is plain and unambiguous. Plain reading of the circular itself is suggestive of the fact that it is only in those cases where the general body of a municipality failed to fix the term of the office of Vice-president then under such circumstances the term of the office of Vice-president shall be co-extensive with the term of the municipality. The circular is very much suggestive of the fact that if the term is fixed by the general body of the municipality then there is no problem or no difficulty would crop up. It suggests that the general body of the municipality in its first meeting has the discretion and power to fix the term of the office of Vice-president of the municipality. ( 11. ) NOW, we shall take up the contention as regards amendment in Section 32 (3) of the Act is concerned. The unamended Section 32 (3) reads as under: No business other than the determination of the term of office of the President and Vice-president and the election of the President and the Vice-president shall be transacted at such meeting. ) NOW, we shall take up the contention as regards amendment in Section 32 (3) of the Act is concerned. The unamended Section 32 (3) reads as under: No business other than the determination of the term of office of the President and Vice-president and the election of the President and the Vice-president shall be transacted at such meeting. 16.1 Amended provision of Section 32 (3) amended by Gujarat 17 of 1993 with effect from 20.8.1993 reads as under: No business other than the election of the President and the Vice-president shall be transacted at such meeting. 16.2 The contention put forward on behalf of the appellant-original writ petitioner that with deletion of words other than the determination of the term of office of the President and Vice-president there is no question now to fix the term of the office of Vice-president. In our view this contention is also devoid of any merits. We are of the view that the business to be transacted so far as election of the President and the Vice-president is concerned includes fixing of the term of office. It is one integral part of the entire transaction. Both the Sections, i.e. Section 32 and Section 33 are to be read harmoniously and in conjunction with each other and not in disjunction. ( 12. ) WE shall now proceed to deal with the last question as regards the discretion or power of the general body to fix the term of the office of Vice-president. WE have noticed that earlier as per the statutory provisions of Section 33, minimum period was provided by the legislature for the term of the Vice-president and such minimum period is subsequently deleted from the said Section by bringing about the amendment in the Act, i.e. the Gujarat Municipalities Act. What is sought to be vociferously canvassed before us is that once the minimum period is deleted by the legislature as a necessary corollary the term of the Vice-president of the municipality will be co-extensive with the term of the municipality, i.e. five years. In the earlier provision, the legislature provided for minimum term and not for maximum term. What is sought to be vociferously canvassed before us is that once the minimum period is deleted by the legislature as a necessary corollary the term of the Vice-president of the municipality will be co-extensive with the term of the municipality, i.e. five years. In the earlier provision, the legislature provided for minimum term and not for maximum term. Earlier by providing minimum period, legislature wanted that the election should not be held during that minimum period and thereby it cannot be said that the discretion of the general body of the municipality of fixing the term of the Vice-president is taken away. In a given case, no period whatsoever is provided by the house at the time of election of Vice-president, a person concerned may be allowed to continue till the expiry of the term of municipality but such will be the situation only when though discretion given to the general body of the municipality for fixing the term of the Vice-president but not exercised. In the present case, the discretion is exercised by the house of fixing term of Vice-president of two and a half years. By any stretch of imagination it cannot be said that such exercise of discretion by the general body of fixing the term of Vice-president of the municipality is contrary to any statutory provision. WE have also considered the Division Bench judgment of this Court in the case of Mukundkumar Trikambhai Chauhan v. State of Gujarat reported in 2005 (3) GLH 557 . The Division Bench in that case had an occasion to consider almost an identical situation like the present case where the term was provided by the general body of the municipality for the office of Vice-president and the Court found that once or twice the election for the post of Vice-president of Nagar Palika was held and on both the occasions the members present at the time of meeting fixed the term of Vice-president for a period of one year and three months. It was observed by Division Bench of this Court that it would now not open to the petitioner to urge that the term of the post of Vice-president co-existed with the term of the municipality as per circular of the Government dated 17.12.2002. Relevant paragraph no.7 of the said Division Bench judgments is quoted as under: 7. It was observed by Division Bench of this Court that it would now not open to the petitioner to urge that the term of the post of Vice-president co-existed with the term of the municipality as per circular of the Government dated 17.12.2002. Relevant paragraph no.7 of the said Division Bench judgments is quoted as under: 7. Learned counsel appearing for the respondent Nagarpalika, however, submitted that when the petitioner was elected as a Vice-President by the members of the Nagarpalika in its meeting on 12th March, 2003, there was no consensus about his term. Therefore, by a majority decision, it was decided to fix the term of the post of Vice-President for a period of one year and three months. At that time itself, the Presiding Officer who presided over that meeting, had already made it clear that as per the circular of the Government issued on 17th December, 2002, the term of the post of Vice-President would co-exist with the term of the Nagarpalika. In spite of it, the members who remained present during the meeting decided to fix the term of the petitioner as Vice-President for a period of one year and three months. After the said term of one year and three months expired, once again election for the post of Vice-President was held on 11th June, 2004 and the petitioner was declared uncontested but his term was once again fixed for one year and three months in spite of the aforesaid circular dated 17th December, 2002 being brought to the notice of the members of the Nagarpalika who were present in the meeting. Thus, it was clear from the bare reading of the circular dated 17th December, 2002 (Annexure 'C') issued by the State Government that term of the post of Vice-President of Nagarpalika would co-exist with the term of Municipality, if it is not fixed at the first instance when the election of Vice-President is held. That is not the case here. In the instant case, as stated earlier, not once, but twice the election of the post of Vice-President of respondent Nagarpalika was held and on both occasions, the members who remained present at the time of the meeting fixed the term of Vice-President for a period of one year and three months. That is not the case here. In the instant case, as stated earlier, not once, but twice the election of the post of Vice-President of respondent Nagarpalika was held and on both occasions, the members who remained present at the time of the meeting fixed the term of Vice-President for a period of one year and three months. In that view of the matter, it would now not be open to the petitioner to urge that the term of the post of Vice-President co-existed with the term of Municipality as per the circular dated 17th December, 2002 (Annexure 'C') issued by the State Government........... Our attention has also been drawn to a bill contemplating amendment so far as Section 33 of the Gujarat Municipalities Act, 1963 is concerned. Though it is still at a stage of Bill but it appears that the legislature having considered the conflict has ultimately decided to rectify the same by way of Gujarat Local Authorities (Amendment Bill) 2011. The proposed amendment would now provide that the term of office of the President and Vice-president of municipality shall be two and a half years and in the statement of objects and reasons it has been said that Section 33 of the Act provides for term of offices of the President and Vice-president, which is two and a half years in case of President whereas term of the Vice-president is co-extensive with the term of the municipality. In order to bring the term of office of the Vice-president at par with that of the President, it is considered to amend the provisions of Section 33 of the said Act. The provision is also made in respect of the existing Vice-presidents, who have completed the term of two and a half years on or before the commencement of the Amending Act so as to allow them to complete their term which is co-extensive with the term of the municipality. FINAL CONCLUSIONS:- (i) The legislature has deleted the provisions of providing minimum period for the term of the Vice-president but merely because minimum period is deleted, it cannot be said that the discretion of the house of fixing the term of the Vice-president is taken away. FINAL CONCLUSIONS:- (i) The legislature has deleted the provisions of providing minimum period for the term of the Vice-president but merely because minimum period is deleted, it cannot be said that the discretion of the house of fixing the term of the Vice-president is taken away. It is only in cases when such a discretion is not exercised, the person concerned may be allowed to continue the office until the term of the municipality but thereby it cannot be said that if the discretion is exercised then also the person would be allowed to continue the office till the term of the municipality. (ii) Resolution no.65 dated 5.3.2008 in no manner violates circular no.NPL/452000/365/M dated 17.12.2002 issued by the State Government in its Urban Development and Urban Housing Department. (iii) Resolution no.65 dated 5.3.2008 is in no manner in any conflict with the circular dated 17.12.2002 issued by the State Government and it does not violate the provisions of Section 275, Clause (4) of the Act. ( 13. ) FOR the reasons recorded above, no interference is warranted in this present appeal and no relief as prayed for by the petitioner deserves to be granted, more particularly, in view of the position of law which we have explained in our judgment. In the result, the appeal fails and the same is dismissed with no order as to costs.