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2018 DIGILAW 370 (GUJ)

MAHESH HIMATLAL MULANI v. STATE OF GUJARAT

2018-02-02

RAJESH H.SHUKLA

body2018
JUDGMENT : 1. Present petition is filed by the petitioner under Articles 14 and 226 of the Constitution of India as well as under the provisions of Gujarat Municipalities Act, 1963, for the prayer as prayed for inter alia appropriate writ, order or direction may be issued quashing and setting aside the impugned order passed by respondent No.1-Director of Municipalities dated 01.09.2014 at Annexure-A and also for stay of the operation of the order on the ground stated in the memo of petition. 2. The facts of the case briefly stated are as follows: 2.1 The petitioner was elected as a Councillor of Radhanpur Municipality. Thereafter, he was also elected as the President of the municipality as per the provisions of Gujarat Municipalities Act, 1963 (hereinafter referred to as 'Municipalities Act'). 2.2 The complaints were made regarding misconduct against one of the employees in service of the municipality and the petitioner is said to have changed the said employee working in the town planning department. However, it is the case of the petitioner that as the municipality had decided the application for development of land within a period of 90 days for the scheme called 'Awas Yojna'. The petitioner as a President of municipality in consultation with the town planner and engineer passed an executive order, which is produced at Annexure-C. However, the election for the parliament was held, the petitioner had issued administrative orders in the capacity as a President of Municipality. Therefore, the officer had recommended respondent No.2 to take the necessary orders. However, the petitioner tendered his explanation that he was unaware of the Code of Conduct while passing the order. It is averred that a show cause notice under Section 37 of the Municipalities Act came to be issued for removal from the post of President of the municipality, and the petitioner filed a reply. However, the impugned order came to be passed and therefore, the present petition is filed as otherwise it would attract the disqualification. 3. Heard learned advocate Shri C. P. Champaneri for the petitioner, learned AGP Shri Venugopal Patel for the respondent No.1 and learned advocate Shri Deepak Sanchela for the respondent No.3. 4. As learned advocate Shri Champaneri has requested to take up the matter pressing the urgency that the election form is required to be filled, the matter has been taken up. 5. 4. As learned advocate Shri Champaneri has requested to take up the matter pressing the urgency that the election form is required to be filled, the matter has been taken up. 5. Learned advocate Shri Champaneri referred to the show cause notice produced on record and submitted that the allegations are regarding his function in the capacity as a President. Learned advocate Shri Champaneri, therefore, submitted that he could not have been removed as a Councillor. He has also submitted that the impugned order would affect ensuing election and therefore, he strenuously submitted that even accepting the position as it is, the allegations are his function as President of the municipality. Therefore, learned advocate Shri Champaneri submitted that as a member he has no power and he has no duty and therefore, as a member he may be allowed by setting aside the impugned order to that extent which will also allow him to file nomination in ensuing election. 6. Learned advocate Shri Champaneri referred to Section 37 of the Municipalities Act and submitted that it would not be attracted as far as his disqualification as a member is concerned. He, therefore, strenuously submitted that the impugned order may be set aside. In support of his submission, he has referred to the judgment of the High Court (Coram: K. S. Jhaveri, J) in case of Maheshbhai Amratlal Patel Vs. State of Gujarat reported in 2010 GLHEL-HC 227810 and emphasized the following observation made in para-6: “Therefore, it is clear that in view of the aforesaid and discussion and position of law, the petitioners, at the most, could have been removed under Section 37 of the Act as the Chairman or members of the Planning Committee, as the case may be, and the petitioners could not have been removed as the councillors of the municipality for their alleged misconduct. Hence, the order passed by the Director of Municipality is beyond the scope and ambit of Section 37 of the Act, and it can be said to be without jurisdiction and illegal and therefore will have to be quashed and set aside.” 7. Learned advocate Shri Champaneri submitted that the Hon'ble Division Bench in case of Shri Chimanbhai R. Patel Vs. Anand Municipality & Ors. Learned advocate Shri Champaneri submitted that the Hon'ble Division Bench in case of Shri Chimanbhai R. Patel Vs. Anand Municipality & Ors. reported in 1983 GLH 152 has made the similar observation referring to Section 37 of the Act is as under: “....The office of the Chairman of a committee is distinct and separate from the office of a Municipal Concillor. All the alleged acts of misconduct or disgraceful conduct were committed by the said petitioner in his capacity as the Chairman of the Dispensary Committee and not in his capacity as a Municipal Councillor. The two offices being distinct and separte, a penalty which can be imposed for acts of this conduct or disgraceful conduct in the performance of duties concerning one office cannot be extended to the other office for the obvious reason that the incumbent cannot be said to have misconducted himself in the discharge of duties as Municipal Councillor...” 8. Learned advocate Shri Champaneri has also referred to the judgment of the Hon'ble Division Bench reported in 2010 (1) GLH 753 and submitted that this judgment is given after the judgment of the Hon'ble Full Bench reported in 2003 (1) GLH 152. Learned advocate Shri Champaneri, therefore, strenuously submitted that the disqualification or any kind of irregularity in performance in the capacity as a President or Vise President is different than as a Councillor and therefore, the petitioner could not have been disqualified by the impugned order even as a member also. He, therefore, submitted that the judgment of the Hon'ble Full Bench will not apply to such cases as the Full Bench has not laid down any proposition. He submitted that the misconduct as a member could be considered for the post of the President. However, conversely, for the irregularity in the function as a President would not be a ground for disqualification as a member. 9. Per contra, learned AGP Shri Venugopal Patel referred to the provisions of Section 37 of the Municipalities Act and the impugned order. He emphasized the word 'disgraceful conduct'. He also referred to Section 37 of the Municipalities Act, which provides for removal from office as a Councillor and also as President or Vise-President of the Municipality. 10. Learned AGP Shri Patel submitted that the Vise President or the President has to be a member and thereafter, he could be considered as a President. He also referred to Section 37 of the Municipalities Act, which provides for removal from office as a Councillor and also as President or Vise-President of the Municipality. 10. Learned AGP Shri Patel submitted that the Vise President or the President has to be a member and thereafter, he could be considered as a President. Again, he emphasized the word 'disgraceful conduct'. He, therefore, submitted that the entire section has to be read in the context with regard to the misconduct in discharging of duty which would consist of a member. He strenuously submitted that it is not correct that the person as a Councillor is not obliged to them and standard of performance as a member. He submitted that it is also not correct that he does not have any function as a member. Learned AGP submitted that admittedly, he has committed a breach of the Code of Conduct that in spite of the election he had passed the order which also has been admitted by him before the authority. For that purpose, he pointedly referred Annexures-G & H and submitted that it is required to be submitted that the development or permission for construction is required to be given by the committee and he could not have given the permission. He referred to Section 6 of the Town Planning Act and submitted that it has to be by Committee and not by one individual and therefore, he could not have given the permission. He also referred to the papers and submitted that the judgment of the Hon'ble Full Bench reported in 2003 (1) GLH 572 clinches the issue. He has also submitted that merely because he does not press to function as a President since the term has expired would not wipe out the disqualification. He submitted that since the term is now over and election is scheduled to be held he has been given such concession only to see that the disqualification does not remain. 11. Learned advocate Shri Deepak Sanchela for the respondent-Municipality referred to the papers and submitted that as a Councillor the petitioner may not have any function and therefore, the submission made by the learned advocate for the petitioner is misconceived. 11. Learned advocate Shri Deepak Sanchela for the respondent-Municipality referred to the papers and submitted that as a Councillor the petitioner may not have any function and therefore, the submission made by the learned advocate for the petitioner is misconceived. He submitted that as stated in the report of the Collector deliberately the Code of Conduct was ignored and though it was brought to the notice of the petitioner that he has no authority to grant any such permission he has proceeded further. 12. Learned advocate Shri Sanchela referred to the Section 37 of the Municipalities Act, 1963 and submitted that the provision of Section 35 has a reference to file in capacity as a President as well as Councillor. He has also submitted that whether the person is a President or a Councillor if he is guilty of misconduct in discharge of duty or he has shown a disgraceful conduct then it would attract. He has also referred to Section 59 and submitted that the committee is required to appoint the Chairman and therefore, the Upa-Sarpanch could not have assumed the responsibility or exercised the powers which are not vested to him. 13. In view of this rival submissions, the moot question which is required to be considered is whether the petition deserves consideration. The submission made by learned advocate Shri Champaneri for the petitioner that the term has expired and whatever the misconduct or the irregularity is alleged in capacity as a President, the present petition may be allowed as he cannot be said to have committed any misconduct as a Councillor which would inviting disqualification. 14. Another submission made by learned advocate Shri Champaneri that for the purpose of next election if the impugned order is not set aside it may cause prejudice to the petitioner. However, for that purpose, a close look at the provisions of Section 37 of the Municipalities Act would clearly suggest that it provides for removal of office in the capacity as a President, Vise President and/or Councillor. As rightly submitted if the person is first eligible as Councillor then only he can be President or Vise President. Therefore, the substance of the submission made by learned advocate Shri Champaneri is that the impugned order may be set aside to the extent that he has been rendered disqualified and the disqualification may go, so that he can contest the next election. Therefore, the substance of the submission made by learned advocate Shri Champaneri is that the impugned order may be set aside to the extent that he has been rendered disqualified and the disqualification may go, so that he can contest the next election. This may be wishful thinking of the petitioner, but in the background of the facts and the statutory provisions, the submissions made by learned advocate Shri Champaneri cannot be accepted. The provisions of Section 37 provide that removal from office as a President or as a Councillor of the municipality and if he is found to be guilty of misconduct in discharge of his duty or any disgraceful conduct he can be removed. Therefore, assuming for the sake of argument that the misconduct in the discharge of his duty may have reference to his function as a President or the Vise-President, but the manner in which he has conducted even as a Councillor would certainly amount to disgraceful conduct. The petitioner cannot be permitted to blow hot and cold at the same time that he may have been guilty of misconduct in a capacity as President or the Vise-President, he could be treated as a Councillor for the purpose of disqualification. Such interpretation or the dissection as submitted is not permissible. The person like petitioner, who is a Vise- President, exercised his powers, which are not vested to him in spite of the fact that it has been brought to his knowledge that it is not his function, but it is function of the municipality when the approval of the Government to grant any such permission, he proceeds further. Further, the Code of Conduct which was also there, he had ignored and thereafter he said to have admitted before the authority. 15. In the facts of the case, as per the statutory provisions of the Town Planning Act, the provisions of Section 6 of the Town Planning Act provide that only the committee will have the power and no the individual. Therefore, on one hand he enjoys the position as a Councillor and on the other hand he has claimed that as a Councillor he has no disqualification as he has no function. The submission made by learned advocate Shri Champaneri that the petitioner has no public function and therefore, he should not attract any disqualification is misconceived. Therefore, on one hand he enjoys the position as a Councillor and on the other hand he has claimed that as a Councillor he has no disqualification as he has no function. The submission made by learned advocate Shri Champaneri that the petitioner has no public function and therefore, he should not attract any disqualification is misconceived. In fact, even as a Councillor, who is representing the people, it is his duty to follow the necessary procedure or the rules. This aspect has also been considered by the Hon'ble Full Bench of the High Court in a judgment reported in 2003 (1) GLH 572 has made observation in para 4.4, wherein it has been observed as follows: 4.4 ….If a person behaves disgracefully in the public or in the office of Municipal Council, he is liable to be removed from his office of Councillor notwithstanding the fact that the misconduct was not with reference to the discharge of his duties...” 16. Thus, it has been observed that even the Councillor is said to have been holding a public post, and therefore, would be liable for disqualification for such disgraceful conduct. Therefore, the submission made by learned advocate Shri Champaneri with emphasis on the observation made by the Hon’ble Division Bench in a judgment reported in 1983 (1) GLR 67 cannot be any help in view of the judgment of the Hon’ble Full Bench reported in 2003 (1) GLH 572 , which specifically stated that such a view has been overrulled. 17. Thus, in light of the clear finding, which has been given the reliance placed by the learned advocate Shri Champaneri, cannot be accepted in view of the statutory powers of Section 37 of the Municipalities Act, 1963 interpreted by the Hon'ble Full Bench. 18. The present petition, therefore, deserves to be dismissed and accordingly stands dismissed. Rule is discharged. Interim relief stands vacated. No order as to costs. 19. As the order passed by this Court in Special Civil Application No.13283/2014, the present Civil Application does not survive and accordingly, stands disposed of.