Hardikkumar Kanubhai Shah v. Commissioner, Municipalities Administration, Gujarat State
2022-09-26
SANDEEP N.BHATT
body2022
DigiLaw.ai
JUDGMENT : 1. The present petition is filed under Article 226 of the Constitution of India by four petitioners who are the members of Dakor Municipality challenging the order dated 30.11.2021 passed by the respondent no.1- Commissioner, Municipalities, whereby the respondent no.1 has removed the petitioners as councillors of Dakor Municipality in purported exercise of powers under Section 37 of the Gujarat Municipalities Act, 1963 (hereinafter referred to as ‘the Act’ for short). During the pendency of the petition, the petitioners filed a draft amendment for adding certain grounds and prayer clause, which was granted by order of this Court and the same was carried out. 2. Rule. Respective learned advocates waive service of notice of rule for respective parties. 3. Notice was issued by the coordinate Bench of this Court on 9.12.2021. Thereafter, a detailed order was passed by coordinate Bench of this Court on 7.2.2022 allowing the draft amendment sought for. Thereafter, the matter was adjourned from time to time and when the matter is listed before this Court, it was partly heard on 21.9.2022 and finally heard today. 4. The brief facts leading to filing of this petition, as mentioned in the petition, are such that the petitioners were elected councillors of Dakor Municipality in the elections held on 19.2.2018 and a Executive Committee was formed which consisted of petitioners and other five members. The said Executive Committee passed various resolutions and all of them were referred by the Chief Officer to Regional Commissioner of Municipality for suspending the resolution in exercise of powers under Section 258 of the Act. Each of the resolutions were taken in appeal and have been suspended or the same have been considered by the Regional Commissioner of Municipalities and general body was directed to decide on the said issue. All the resolutions passed by the Executive Committee were approved by the general body. It is stated that even otherwise, none of the said resolutions have been implemented. It is stated that either the resolutions have been suspended by the Regional Commissioner of Municipalities or they have not been implemented at all. 4.1 It is further stated that inspite of above, the respondent no.1-Commissioner, Municipalities issued show cause notice dated 25.1.2021 to the petitioners and other five members of the Executive Committee.
It is stated that either the resolutions have been suspended by the Regional Commissioner of Municipalities or they have not been implemented at all. 4.1 It is further stated that inspite of above, the respondent no.1-Commissioner, Municipalities issued show cause notice dated 25.1.2021 to the petitioners and other five members of the Executive Committee. The respondent no.2 herein who was the complainant applied for being joined as party respondent in the present proceedings under Section 37 of the Act. The respondent no.2 joined as party in the proceedings and filed reply. 4.2 It is further stated that the petitioner no.1 filed preliminary reply and on the basis of the same, the respondent no.1 issued notice dated 13.7.2021 to all the elected members under Section 37 of the Act. The five members other than the petitioners filed reply in the proceedings under Section 37 stating that the resolutions passed by the Executive Committee were passed without the consent of the said members and they were not aware of the said resolution. The petitioners nos.2 to 4 appeared through the advocate. It is submitted that on 26.8.2021 the adjournment was granted and the authorities informed that the petitioners would be made aware about the next date of hearing. It is submitted that thereafter the petitioners did not hear anything about the proceedings and to the shock and surprise of the petitioners, they received the impugned order dated 30.11.2021 removing the petitioners in exercise of powers under Section 37 of the Act and the proceedings against the rest of the five members were dropped. Hence, this petition is filed. 5. Heard learned advocate Mr.Dipen Desai for the petitioners, learned senior advocate Mr.H.M.Parikh for learned advocate Mr.Haribhai Patel for respondent no.2, learned AGP Ms.Jyoti Bhatt for respondent no.3 and learned advocate Mr.Chitrajeet Upadhyay for learned advocate Mr.Naman Brahmbhatt for respondent no.4. 5.1 Learned advocate Mr.Dipen Desai for the petitioners, has contended that the petitioners are part of the Executive Committee in Dakor Municipality and they are four in number and committee consists of nine members.
5.1 Learned advocate Mr.Dipen Desai for the petitioners, has contended that the petitioners are part of the Executive Committee in Dakor Municipality and they are four in number and committee consists of nine members. He has drawn my attention towards the various resolutions passed by the Executive Committee, more particularly, the minutes of meeting held of the Executive Committee, dated 10.4.2018, whereby he has pointed out that all the nine members were present in the meeting and on that day, resolution no.41 which pertains to subject matter of the present petition is passed by the Executive Committee. He has further pointed out that thereafter in the minutes of the meeting of Executive Committee of the Municipality dated 12.7.2019 also, it is mentioned that all the nine members of the Committee were present and therefore also, resolution no.805 was passed. He further pointed out that thereafter on 30.7.2019, the general board meeting of the Municipality was held and 16 members remained present where the resolution passed by the Executive Committee were also approved. Thereafter, he has further pointed out from the minutes of the meeting of Executive Committee dated 30.5.2018 whereby also all nine members remained present and resolution no.653 was passed in that meeting. He has further pointed out that all the resolutions were passed which were subsequently approved by the general board in the meeting dated 3.7.2018 where 28 members of the Municipality remained present and item no.2, item no.12 and item no.16 of that minutes indicate that the general board has approved the resolutions passed by the Executive Committee and therefore he has submitted that all the decisions taken by the Executive Committee in the various meetings pertaining to resolutions no.41, 784, 805, 653 etc. are taken by all the nine members who remained present in the meeting and after detailed deliberation, such resolutions were passed. He has further submitted that not only that, thereafter, the general board of the Municipality has also approved the resolutions passed by the Executive Committee.
are taken by all the nine members who remained present in the meeting and after detailed deliberation, such resolutions were passed. He has further submitted that not only that, thereafter, the general board of the Municipality has also approved the resolutions passed by the Executive Committee. He has further submitted that, therefore, though there is some communication by the Chief Officer to the Regional Commissioner, Municipalities by communication dated 1.8.2019 and pursuant to that, the Regional Commissioner, Municipalities, Ahmedabad Zone has passed order dated 30.10.2019 by staying the resolution no.41 of the Dakor Municipalities and therefore he submits that even if it is assumed for the sake of argument that there is some irregularity in passing such resolution, then also, that resolution is not given effect as the Regional Commissioner has already stayed that resolution and therefore there is no loss caused to the Municipality by so called action of passing of resolution by the Executive Committee. He further submitted that thereafter, the proceedings are commenced before the Commissioner, Municipalities at Gandhinagar and the Commissioner has issued show cause notice for joining party in the appeal filed under the provisions of Section 37 of the Act and show cause notice is issued on 25.1.2021. Pursuant to that, the proceedings are further proceeded and the Commissioner, Municipalities has passed order on 30.11.2021 which can be termed that it is without giving opportunity to the present petitioners. 5.2 Learned advocate Mr.Desai has submitted that the petitioners were informed about the proceedings from 11.2.2021 to 5.8.2021 but thereafter on 26.8.2021, 16.9.2021 and 28.10.2021, the hearing was fixed by the Commissioner but no notice is given to the present petitioners to represent his case and thereafter proceeded by considering the reply received pursuant to the show cause notice from the opponent nos.4,5,6,8 and 9 in that appeal and has passed the order by withdrawing the notice against the said opponents who are also members of the same Executive Committee and has proceeded against the present petitioners by exercising powers under Section 37(1) and by removing the present petitioners from the membership of the Municipality. He has further submitted that no finding under Section 37 of the Act is given in the impugned order passed by the Commissioner, Municipalities. He has further submitted that no order is passed for other members of the Municipalities who have approved the resolution in general board.
He has further submitted that no finding under Section 37 of the Act is given in the impugned order passed by the Commissioner, Municipalities. He has further submitted that no order is passed for other members of the Municipalities who have approved the resolution in general board. He has further submitted that the impugned action of the Commissioner is erroneous and ex-facie bad in law as he has exonerated five members of the Executive Committee who have also remained present in that particular meeting where the resolution no.41 is passed and thereafter the same resolution is also approved in the general board. Even then, the Commissioner of Municipalities has proceeded against the present petitioners only by exercising powers under Section 37 which is per-se bad, arbitrary and unjust. 5.3 He summed up his arguments in the following points : (i) The impugned order is bad, without hearing the present petitioners whereby Section 37 of the Municipalities Act contemplates opportunity of hearing and prior to passing of the order, notice was not served of the three adjournments upon the present petitioners. The impugned order is without assigning any reasons and more particularly, in view of Section 37 of the Act. (ii) He has further submitted that since out of nine members of the Executive Committee, five members were exonerated and four members who are the present petitioners are removed under Section 37 which is nothing but differential treatment given to different persons by the state authority. (iii) He has further submitted that the general body has also approved the resolution passed by the Executive Committee even then no action is taken against the general body members nor any notice is issued to the general body members and therefore this is nothing but a colourable exercise of powers. (iv) He has further submitted that even looking to the resolution which is never given any effect as the resolution is stayed by the Regional Commissioner and considering that aspect also, the order of removal is very harsh and amounts to disproportional treatment to the so called action of the present petitioners. 5.4 In support of hiss submissions, learned advocate Mr.Desai has relied on the following judgments : (1) Virbalaben Girishbhai Trivedi and Others V/s State of Gujarat and others, reported in 2010(1) GLH 753, more particularly, paragraphs no.6 and 7.
5.4 In support of hiss submissions, learned advocate Mr.Desai has relied on the following judgments : (1) Virbalaben Girishbhai Trivedi and Others V/s State of Gujarat and others, reported in 2010(1) GLH 753, more particularly, paragraphs no.6 and 7. (2) Ravi Yashwant Bhoir V/s District Collector, Raigad and others, reported in (2012) 4 SCC 407 , more particularly, paragraphs 21 to 26, 31, 34 to 37 and 46. (3) Sharda Kailash Mittal V/s State of Madhya Pradesh and others, reported in (2010)2 SCC 319 , more particularly, paragraphs 22 and 24. (4) Tarlochan Dev Sharma V/s State of Punjab and others, reported in (2001)6 SCC 260 , more particularly, paragraphs 7,8,11 to 13 and 16. (5) Vasantiben Vashrambhai Galchar V/s Commissioner, Municipalities Administration, Gujarat State, reported in 2021(4) GLH 154 , more particularly, paragraphs no. 12 to 17. (6) Ujeshbhai Ishwarbhai Patel V/s The Commissioner of Municipalities, Gujarat State in SCA 6793 of 2021, more particularly, paragraphs no. 11 to 14. (7) Patel Kantilal Muljidas V/s State of Gujarat, reported in AIR 2003 GUJ. 27 , more particularly, paragraphs 13-14 and 17-18. (8) Maheshbhai Amratlal Patel V/s State of Gujarat, reported in 2010(JX) (GUJ) 1194, more particularly, paragraphs no. 6 to 7. 5.5 Learned advocate Mr.Desai, thus, submitted that the points of arguments raised by him are squarely supported by the ratio of judgments of this Court as well as the Hon’ble Apex Court and therefore also considering that aspect, the present petition is required to be allowed by quashing and setting aside the order passed by the respondent authority. He has further submitted that they are elected by the valid election process and the term of membership is going to expire in February, 2023 and therefore he prayed to allow this petition by considering all his submissions and also considering the larger interest of justice. 6. Per Contra, learned senior advocate Mr.Parikh appearing for the private respondent no.2 has submitted that the order passed by the Commissioner, Municipalities is just and proper. He has submitted that in the entire petition or before any authority the present petitioners have not given any explanation about their misconduct and they are harping on some other points. He has further submitted that though there is ample opportunity given to the present petitioners in the proceedings before the learned Commissioner, the petitioners never availed that opportunity by filing any reply or objections.
He has further submitted that though there is ample opportunity given to the present petitioners in the proceedings before the learned Commissioner, the petitioners never availed that opportunity by filing any reply or objections. 6.1 Learned senior advocate Mr.Parikh has relied on the judgment of the Hon’ble Apex Court in the case of Dalip Singh and others V/s State of Haryana reported in 2019 SC (supp) 923 and submitted that illegal equality cannot be considered and therefore he has submitted that the present petition deserves to be dismissed as the petitioners have no case in their favour and they are wrong doers. 7. Learned advocate Mr.Chitrajeet Upadhyay appearing for learned advocate Mr.Naman Brahmbhatt, learned advocate for respondent no.4 has submitted that the authorities have not acted in any erroneous or illegal manner. He has further submitted that under Article 227 of the Constitution of India, the Court should not exercise powers when the petitioners are not justified in their action and therefore there is no case made out to exercise powers by this Court. He also submitted that in the present case, though there was ample opportunity available to the present petitioner after show cause notice was issued by the Commissioner-Municipality, the petitioners have not filed any reply and now it is not permissible for the petitioners to contend anything regarding opportunity of hearing, non-availability of hearing or non-compliance of principles of natural justice. He has submitted that on the contrary, the Commissioner has given all the liberty and accordingly the other five members had filed their reply and their reply was also considered while deciding the proceeding under Section 37 by the respondent-authority i.e. the Commissioner of Municipalities. 7.1 Pursuant to the contention of the petitioner that there is colourable exercise of powers, learned advocate Mr.Upadhyay submitted that the petitioners cannot take advantage of the similarly situated persons who were acquitted or exonerated from any proceedings and that the petitioners should get same treatment, which contention should not be accepted in eye of law. 7.2 In support of the said contention, learned advocate Mr.Upadhayay relied on the judgments reported in R.Muthukumar and others v/s Chairman and Managing Director Tangedco and others, reported in 2022 SCC Online SC 151 and Basawaraj and another V/s Special Land Acquisition Officer, reported in 2013 (14) SCC 81 .
7.2 In support of the said contention, learned advocate Mr.Upadhayay relied on the judgments reported in R.Muthukumar and others v/s Chairman and Managing Director Tangedco and others, reported in 2022 SCC Online SC 151 and Basawaraj and another V/s Special Land Acquisition Officer, reported in 2013 (14) SCC 81 . 7.3 Learned advocate Mr.Upadhyay has further submitted that the petitioners have never challenged the order passed by the authority by which the notice was withdrawn against the other similarly situated persons of the Executive Committee. He has further submitted that the conduct of the petitioners is also very strange as they have never explained about the allegation made against him. In fact, the reply which is given by other members against whom notice is withdrawn clearly indicates that those members are also not aware about the proceeding and such minutes of the proceedings are drawn later on by the petitioners and though the other members are present in the meeting, they are not aware about the minutes written the petitioners. He has further submitted that, on the contrary, at the behest of one of the members against whom the notice is withdrawn by the respondent-Commissioner of Municipalities has drawn the attention to the Chief Officer that such resolutions are not in accordance with law and policy of the Nagarpalika and the proceedings are initiated and therefore he has submitted that the impugned decision which is passed by the Commissioner, Municipalities is just and proper and there is no malafide nor it amounts to colourable exercise of power nor it is hit by the principles of natural justice and therefore there is no violation of Article 14 of the Constitution of India and therefore this Court should not exercise powers and more particularly under the provisions of Article 227 of the Constitution of India and prays to dismiss the present petition as there is no merit in the present petition. 8. Learned AGP Ms.Bhatt appearing for the authority has submitted that she has already filed affidavit-in-reply in the present petition by stating the reasons for initiating actions under the Act.
8. Learned AGP Ms.Bhatt appearing for the authority has submitted that she has already filed affidavit-in-reply in the present petition by stating the reasons for initiating actions under the Act. She has stated that looking to the order passed by the Commissioner, 11 persons were there in the proceedings initiated under Section 37 of the Act and therefore as per the record and finding recorded in the impugned order, the petitioners had not remained present on 26.8.2021, 16.9.2021 and 28.10.2021 and thereafter the order is passed. She has further contended that prior to that on 11.2.2021, 18.3.2021 till 5.8.2021, the petitioners were aware about the proceeding and has remained present also before the authority but has not chosen to file any reply. She has further submitted that since there are various resolutions passed which amounts to abuse of power by the present petitioners and therefore appropriate proceeding is initiated and after giving sufficient opportunity of hearing, the impugned order is passed and therefore she has stated that there is no violation of principles of any law. She has further submitted that one of the petitioners is the Chairman of the Executive Committee and they have passed resolution in Executive Committee and number of lands were given to different persons without following procedure provided under Section 65(2) of the Act. She has further argued that for that reason, the inquiry is held under the provisions of Section 37 of the Act and after inquiry report is received, the Commissioner has opined that in the present case the proceeding under Section 37 can be initiated. She has further submitted that the resolution no.41 dated 10.4.2018 came to be passed and the land situated opposite Bodana statue came to be leased to Mr.Jigarbhai Mahendrabhai Shah and same was reviewed by the Regional Commissioner and it was suspended on 1.10.2019. She has submitted that though earlier, the resolutions were set aside, yet again the executive resolution no.784 was passed and some place was allotted to some person. She has further submitted that earlier, proceeding was also initiated before this Court by way of Special Civil Application No.2940 of 2011, whereby this Court has given direction to the concerned Collector to decide the application of the petitioner no.1 and therefore same was taken under review under Section 258(1) and resolution concerned was set aside.
She has further submitted that earlier, proceeding was also initiated before this Court by way of Special Civil Application No.2940 of 2011, whereby this Court has given direction to the concerned Collector to decide the application of the petitioner no.1 and therefore same was taken under review under Section 258(1) and resolution concerned was set aside. She has further submitted that the petitioners have not argued anything about the breach of Section 65(2) and therefore only on that ground, the petition is required to be dismissed. 9. In support of her submission about the removal of the petitioners from the office of councillors of Nagarpalika, she has relied on the judgment in the case of Raghubhai M Desai V/s Vinay Vhas, IASS Dir.Municipalities reported in AIR 2000 (Guj) 239 and submitted that this present petition is devoid of merits and required to be dismissed. 10. I have heard learned advocates for the parties, perused the material available on record, gone through the averments made in the petition as well as affidavit- in-reply filed by the respective parties. 11. First, the relevant provisions of law are relevant to be looked into: Section 37 of the Act reads as under : “37. Removal from office : (1) The State Government may remove from office - (a) any councillor of a municipality, 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 case may be vice-president an opportunity of 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. (2) A president or vice-president removed under sub-section (1) shall not be eligible for re-election as a president or vice-president during the remainder of the term of the municipality.” 12. Section 65 of the Act reads as under: “65.
(2) A president or vice-president removed under sub-section (1) shall not be eligible for re-election as a president or vice-president during the remainder of the term of the municipality.” 12. Section 65 of the Act reads as under: “65. Powers of municipality to sell, lease, and contract:- (1) A municipality shall be competent; subject to the restriction contained in sub-section (2), to lease, sell or otherwise transfer any moveable or immovable property which may, for the purposes of this Act, have become vested in or been acquired by it; and so far as it is not inconsistent with the provisions and purposes of this Act, to enter into and perform all such contracts as it may consider necessary or expedient in order to carry into effect the said provisions and purposes. (2) In the case of every lease or sale of land under sub-section (1) of section 146 and of a lease of immovable property for a term exceeding ten years and of every sale or other transfer of such immovable property, the market value of which exceeds one lakh of rupees, the previous permission of the State Government is required: [Provided that in the case of a lease or sale of land under subsection (1) of section 146 no such permission shall be granted if such land forms a street or part of a street which has been declared to be a public street under section 148.] (3) In the case - (a) Sanction by resolution at general meeting requisite to validity of certain contracts :- Of a lease for a period exceeding one year or of a sale or other transfer of immovable property the market value of which does not exceed one lakh of rupees or contract for the purchase of any immovable property, (b) of every contract which will involve expenditure not covered by a budget grant; (c) of every contract the performance of which cannot be completed within the official year current at the date of the contract; the sanction of the municipality by a resolution passed at a general meeting is required.
(4) Execution of contracts on behalf of municipality:- In a municipality (a) every contract under or for any purpose of this Act shall be made on behalf of the municipality by the Chief Officer, (b) no such contract for any purpose which the Chief Officer is not empowered by this Act to carry out without the approval or sanction of some other municipal authority, shall be made by him until or unless such approval or sanction has first of all been duly given; (c) no contract which will involve on expenditure exceeding one thousand rupees shall be made by the Chief Officer unless otherwise authorised in this behalf by the municipality except with the approval or sanction of the committee concerned; (d) every contract made by the Chief Officer involving an expenditure exceeding five hundred rupees and not exceeding one thousand rupe shall be reported by him, within fifteen days after the same has bee made, to the committee concerned; (e) the foregoing provisions of this section shall apply to every variation or discharge of a contract to the same extent as to an original contract. (5) No contract shall be binding on a municipality unless the requirements of this section have been complied with.” 13. Now, considering the facts of this case, the main grievance pertains to some of the land allotted to some person and pursuant to that the Executive Committee of the Municipality has passed resolution dated 10.4.2018 by resolution no.41, resolution no.114, 142 and 144 dated 30.5.2018, and resolution no.653 dated 12.7.2019 and resolution nos.784 and 805 dated 7.10.2019. 14. On bare reading of Section 37 and on bare perusal of the resolutions which pertains to allocation of land for 11 months and if we consider Section 65(2) of the Act, which is reproduced hereinabove, it will be applicable for the lease of the property for a term exceeding ten years and in the present case, the resolution is for 11 months only and therefore apparently the provisions of Section 65(2) of the Act is not applicable to the facts of the present case. Therefore, it seems that the entire proceeding is initiated without proper application of mind. 15.
Therefore, it seems that the entire proceeding is initiated without proper application of mind. 15. It further transpires that it is not in dispute that the hearing of the present petitioners that hearing was fixed on 26.8.2021, 16.9.2021 and 28.10.2021 which was not informed to the present petitioners and thereafter the order is passed by the authority on 30.11.2021. However, prior to that, the petitioners were present during 11.2.2021 to 5.8.2021 but they had not filed any reply, but the fact remains that on last three occasions, the petitioners were not informed about the hearing and therefore it can be said that the said order is passed without giving proper and reasonable opportunity of hearing to the present petitioners. 16. Now, on perusal of the entire order, it seems that no finding is given by the authority that why the powers are exercised under Section 37 of the Act. It transpires from the order that the authorities have not proceeded against the other members of the Executive Committee who has passed resolution. It also transpires that the resolution no.41 is stayed by the Regional Director, Municipalities by order dated 1.10.2019 and therefore that resolution is not acted upon and therefore there is no question of any financial loss to the Municipalities. It also transpires that all the nine Executive Committee members have remained present in all the meetings and have taken active participation in those meetings, where the impugned resolutions are passed, even then, thereafter they have changed that version that they are not aware about the resolutions passed in those meetings and on that basis the respondent-authority has exonerated them and withdraw the notice issued under Section 37 of the Act against them, which, clearly seems that it is acted against the principles of equality and also amounts to differential treatment given to different persons and also considered as arbitrariness and also considered as colourable exercise of powers. Therefore, I am of the opinion that the submissions made by the present petitioners that on the count of violation of principles of natural justice under Article 14 of the Constitution of India and on the count of that the order is non-reasoned order as per the provisions of Section 37 of the Act is not baseless. 17.
Therefore, I am of the opinion that the submissions made by the present petitioners that on the count of violation of principles of natural justice under Article 14 of the Constitution of India and on the count of that the order is non-reasoned order as per the provisions of Section 37 of the Act is not baseless. 17. Further, I am of the opinion that there is also substance in the submission that out of nine members the Executive Committee, five members are exonerated and the proceedings under Section 37 is withdrawn and the present petitioners are found liable and therefore they are removed as members of the Municipality, however, if the decision is taken by the Executive Committee and if some member has committed some irregularity or acted against the provisions of law, then in the case whether he can be removed as a member of the nagarpalika itself or he can be removed from the member of the Executive Committee that question is also required to be considered in the appropriate case. It is also clear from the above mentioned order as well as the contention raised by the petitioner that the other general body members who have approved those resolutions are not touched at all nor notice is issued to the other members of general body, which also amounts to colourable exercise of powers. 18. Even assuming for the sake of argument that if the present petitioners have committed some act in violation of the Act then also they cannot be punished in individual capacity and all the body of the Municipality should be held responsible for such act looking to the resolutions passed by the Executive Committee and approved by the general body, which is not done in the present case and the authorities have therefore acted in biased, unreasonable as well as illogical manner in removing the present petitioners, who are four members out of nine members of the Executive Committee as members of the Municipality. 19. With regard to the submission made on behalf of the respondents that there is breach of Section 65(2) of the Act, as I have discussed earlier that looking to the resolution passed by the Executive Committee, Section 65(2) cannot be held applicable in the facts of the present case and therefore the proceedings initiated relying on Section 65(2) is found baseless. 20.
20. The second contention which is contended by the learned advocate for the respondent Mr.Upadhyay, learned senior advocate Mr.Parikh as well as learned AGP Ms.Bhatt about the aspect that the petitioners have participated initially and thereafter on last three occasions, they have not remained present and therefore the order passed cannot be said that it is passed in violation of principles of natural justice is not found very attractive in the facts and circumstances of the present case as it is an admitted position that on last three occasions, the petitioners were not informed by the authority about the date of hearing and therefore the petitioners could not represent their case and therefore there is no reasonable and proper opportunity given to the present petitioners. 21. Moreover, the impugned decision which is passed under Section 37 of the Act dated 30.11.2021, whereby the Commissioner has discussed all the submissions made by 4,5,6,8 and 9 and also considered the necessary report, however, no proper discussion nor convincing reasons are given in the impugned order pertaining to Section 37 of the Act. 22. The judgments which are cited at bar by learned advocates for the respondents in the case of R.Muthukumar and others (supra), Basawaraj and another (supra), Dalip Singh and others (supra) and Raghubhai M.Desai (supra) pertain to the provisions of Section 37, colourable exercise of powers, negative equality from the illegal act cannot be claimed. I am in complete agreement with the ratio of judgments but as the facts of the present case are different, the same cannot be made applicable to the present case. 23. Out of the citations cited at bar by learned advocate Mr.Dipen Desai for the petitioner, the case of Virbalaben Girishbhai Trivedi (supra) pertains to the point that mere irregularity or illegality in discharge of duties or causing loss to Municipality is not sufficient to remove councillor/president. Paragraphs 6 and 7 of the said judgment reads as under: “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.
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. 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 any one 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.” 24.
In the judgment reported in Ravi Yashwant Bhoit (supra), it is held that removal of elected office bearers has serious repercussions and can be removed in exceptional circumstances by following stringent procedure and standard of proof, principles of natural justice to be followed and for that it is the duty to give reasons and a speaking order, rationale behind requirement of recording reasons in order, right to reasons is an indispensable part of sound judicial system. 25. The decision in the case of Sharda Kailash Mittal (supra) pertains to collective responsibility for decisions, councilor cannot be singled out, action of removal a grave step and must be resorted to only under grave and exceptional circumstances, not for minor irregularities. Paragraphs 22 and 24 of the said judgment reads as under: “22. The analysis of these materials, particularly, the background shows that the State Government failed to appreciate that the decisions for publication of advertisements, calling for tenders and payment of salaries were made by the entire council and the President-appellant could not be singled out for those decisions taken by the Council. The High Court failed to appreciate that removal under Sec. 41-A of the Act could be resorted to only under grave and exceptional circumstances which were not present in the appellant's case. No charge of causing financial loss to the Nagar Palika could be established by the State Government. 24. In Tarlochan Dev Sharma V/s. State of Punjab and Ors. (2001) 6 SCC 260 , this Court while dealing with the removal of a President of the Council under Punjab Municipal Act of 1911, held in Paragraph 6 as under:- "7. In a democracy governed by rule of law, once elected to an office in a democratic institution, the incumbent is entitled to hold the office for the term for which he has been elected unless his elections set aside by a prescribed procedure known to law... Removal from such an office is a serious matter. It curtails the statutory term of the holder of the office a stigma is cast on the holder of the office in view of certain allegations having been held proved rendering him unworthy of holding the office which he held." In Paragraph 11 this Court observed as under:- "11.
Removal from such an office is a serious matter. It curtails the statutory term of the holder of the office a stigma is cast on the holder of the office in view of certain allegations having been held proved rendering him unworthy of holding the office which he held." In Paragraph 11 this Court observed as under:- "11. ...A singular or causal aberration or failure in exercise of power is not enough; a course of conduct or plurality of aberration or failure in exercise of power and that too involving, dishonesty of intention is... The legislature could not have intended the occupant of an elective office, seated by popular verdict, to be shown exit for a single innocuous action or error of decision." The same consideration must be taken into account while interpreting Sec. 41- A of the Act. The President under the M.P. Municipalities Act, 1961 is a democratically elected officer, and the removal of such an officer is an extreme step which must be resorted to only in grave and exceptional circumstances.” 26. At this stage, it is important to refer to the judgment reported in Tarlochan Dev Sharma (supra), which also pertains to removal from an elected office is a serious matter and case for removal must be clearly made out. 27. The judgment in the case of Vasantiben Vashrambhai Galchar (supra) pertains to violation of principles of natural justice. 28. The judgment in the case of Patel Kantilal Muljidas (supra), pertains to misconduct found to have been committed as a member of a committee, he can at the most be removed as the office bearer of such committee and cannot be removed as councillor of municipality for such misconduct. Paragraphs 13, 14, 17 and 18 read as under: “13. So far as the alternative contention of Mr. Raval that even if it assumed for the sake of argument that the Director of Municipalities has power under sec. 37 of the Municipalities Act, then also the order of removal can not stand in the eye of law so far as removal as councillor is concerned, same requires consideration.
So far as the alternative contention of Mr. Raval that even if it assumed for the sake of argument that the Director of Municipalities has power under sec. 37 of the Municipalities Act, then also the order of removal can not stand in the eye of law so far as removal as councillor is concerned, same requires consideration. A perusal of show cause notice and the final order shows that all the allegations which have been found to be proved (of course ex-parte in the absence of reply of the petitioners) relate to the functioning of the petitioners as members of the Planning Committee and/or as Chairman of the Planning Committee, as the case may be. They are not, in any manner, connected with the functioning as the councillors of the Municipality independently. No material is brought to the notice of this court on behalf of respondent No.2 to show that the petitioner have committee misconduct in capacity as the councillors, save and except, the allegations made in the show cause notice and finding given in the order relates to the functioning of the petitioners as the members of Planning Committee. The provisions of the Municipalities Act show that the Municipalities, for the purpose of discharging its various functions, may constitute various committees, such as, Executive Committee or other committees as contemplated under sections 55, 56 and 57 of the Act. Any councillor who is so elected at the said statutory committees or other committees shall be constituted by the general body of the Municipality and will hold a separate and distinct office in the capacity as the member of the sai d committee or in capacity as the Chairman or Vice Chairman of the said committee. It is only those councillors who are elected at such committee would be entitled to function as the member of the said Committee and no other councillor. Whereas in the general body meetings all the councillors will be entitled to participate and deliberate and are to function as the councillors. In a given case any decision of the any committee may be considered by the general body where all the councillors are to participate and decide. However, it is not necessary that in all the decisions of such committees there would be an intervention or contribution of other councillors also.
In a given case any decision of the any committee may be considered by the general body where all the councillors are to participate and decide. However, it is not necessary that in all the decisions of such committees there would be an intervention or contribution of other councillors also. The scheme of the Act is that the decision in respect of the business which has been assigned to the committee is to be taken by such committee independently unless such decision is overruled or reversed by the general body. Therefore, the committees which is constituted under the Municipalities Act have the separate and distinct status and the persons who are members of such committee will have a separate and distinct office in addition to their capacity as the councillors which the councillors may exercise their rig ht and function at the general body meeting or otherwise. In the present case, the constitution of th e Planning Committee is a creation of the statute itself as provided under sec. 6(2) of the Act and, therefore, on reading of the provisions of the Act with the provisions of the TP Act it can be said that the Planning Committee is one of the Committees of the Municipality and said aspect is made apparent in view of sub-section (3) of sec. 6 of the Act. Once it is found that each committee and the members of the said Committee will have an independent and separate office, duties and functioning in addition to the capacity or functioning as the councillors of the Municipality, it will have to be borne in mind while imposing penalty upon any person for the purpose of removal. At this stage, it would be worthwhile to refer to certain observations of the Division Bench of this court in the matter of Chimanlal Patel (supra). At para 5 of the said judgement the Division Bench of this court observ ed in case of a Chairman of a Dispensary Committee of the municipality as under: "However, where the duties to be performed are distinct and attached to a particular office and can only be performed by a person holding the office, then it is obvious that he can be removed from that office on the ground that he mis-conducted himself while discharging his duties pertaining to that particular office.
Therefore, a person who misconducts himself or conducts himself in a disgraceful manner while performing his duties as a President or a Chairman of a Committee const ituted by the Municipality under the Act can be removed from the office of the President or Chairman, as the case may be, but it seems difficult to hold that he can also be removed from the office of the Municipal Councillor even though the alleged misconduct or disgraceful conduct was not referable to anything done in the discharge of duties as a Municipal Councillor". In the aforesaid case, i.e. Chimanlal Patel (supra) the Division Bench of this court at para 6 after referring the judgement of another Division Bench in case of Akbarali Kasamali vs. N.G.Pandya, reported in (1973) 14 GLR 287 has observed as under: "If a person has mis-conducted himself or conducted himself in a disgraceful manner while performing his duties as the President of a Municipality or Chairman of a committee appointed under the Act and if his acts have nothing to do with the office of the Municipal Councillor, he can only be removed from the office of the President or Chairman, as the case may be, but he can not be removed from the office of Municipal Councillor held by him. This position seems to us to be crystal clear not only from the plain language of the statute but also from the decision in Akbarali's case(supra) where a similar position in Panchayats Act was construed." After making aforesaid observations the Division Bench in the aforesaid judgement at para 8 has dealt with the facts of said case where the petitioner therein was the Chairman of Dispensary Committee at the relevant point of time when the alleged acts of misconduct or disgraceful were committed. Thereby, the Division Bench concluded by observing as under: "The office of the Chairman of a Committee is distinct and separate from the office of a Municipal Councillor. 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.
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 separate, a penalty which can be imposed for acts of misconduct or disgraceful conduct in the performance of duties concerning one office can not be extended to the other office for the obvious reason that the incumbent can not be said to have mis-conducted himself in the discharge of duties as Municipal Councillor. We, are, therefore, of the opinion that the petitioner's removal from the office of Municipal Councillor under sub-section (1) of Sec. 37 of the Act for acts of misconduct or disgraceful conduct committed in the discharge of his duties as Chairman of the Dispensary Committee can not be sustained." The aforesaid judgment of the Division Bench of this court is again considered by another Division Bench of this court (Coram: K.G. Balakrishnan and A.K. Trivedi, JJ) in case of Popatlal Devidan Gandavi vs. Satishkumar Rameshchandra Ahir reported in 1998(2) GLR 1217 . It was not a case of misconduct but was that of disgraceful conduct. The respondent No. 7- Satishkumar Ahir who was the President of the Municipality was removed on the ground of disgraceful conduct by the authority empowered under section 37 of the Act since he was found to have been involved in criminal case and he was also detained under Prevention of Blackmarketing and Maintenance and Supply of Essential Commodities Act, 1980. The decision of the authority for removal of Shri Ahir was challenged initially before the learned single judge of this court and the learned single judge of this court found that the alleged disgraceful conduct as that of criminal prosecution and detention under Prevention of Blackmarketing and Maintenance and Supply of Essential Commodities Act, 1980 was not concerning to the office of the petitioner therein as the President of the Municipality and relying on the judgement in the matter of Chimanlal Patel (supra) the learned single judge found that the petitioner therein could not have been removed as the Councillor of the Municipality and therefore the decision of the authority of removal was quashed.
The said judgement of the learned single judge (Coram:S.D. Pandit, J) was carried in appeal before the Division Bench of this court in the matter of Popatlal Gandavi (supra). While confirming the decision of the learned single judge, the Division Bench of this court has, once again, observed at paras 5 and 6 as under: "5. In an earlier decision of a Division Bench of this court reported in 1983 (1) GLR 67 (Chimanbhai R. Patel vs. Anand Municipality) a contrary view was taken. In that case, Section 37 of the Gujarat Municipalities Act was interpreted and it was held that the misconduct or disgraceful conduct must have connection to the official duties as a President of the Municipality. It was stated in para 5 of the judgment that act of misconduct or disgraceful conduct or the incapacity must relate to the office of which he is sought to be stripped under the aforesaid provision. 6. In the present case, admittedly, the allegation regarding disgraceful conduct has no relation to the duties and functions of the President of Municipality. On going through the section, as stated above, it is clear that the President or Vice President, as the case may be, must have shown disgraceful conduct in relation to any act in discharge of his official duties. It is important to note that the President is an elected member of the people and he is holding such an office by virtue of the mandate given by the electorates. The State Govt. is given power of removal only if he has been guilty of misconduct in the discharge of his duties or he has shown disgraceful conduct in respect of his official duties or if he is incapable of performing his duties. A plain reading of the relevant petition would only convey the meaning that disgraceful conduct also should have connection to his official duties. The learned single judge was perfectly justified in taking that view." 14.
A plain reading of the relevant petition would only convey the meaning that disgraceful conduct also should have connection to his official duties. The learned single judge was perfectly justified in taking that view." 14. In view of the above decision, the law settled is that if a person has committed misconduct or is found to have committed disgraceful conduct in discharge of his duties as the office bearer or a member of the committee or a statutory committee of a Municipality, he can, at the most, be removed as the office bearer of such committee and he can not be removed as the councillor of the Municipality for such alleged misconduct unless and until such misconduct is also concerning his office as the councillor of the Municipality by the act which is overlapped the earlier alleged act of misconduct incapacity as the office bearer of the committee. 17. In view of the above, if the facts of the present case are examined it is apparent that if it is taken for granted that the findings of the authority made in the order for removal are true and correct then also they pertain to the granting of permission for construction of building as the Chairman or the member of Planning Committee, as the case may be, and there is neither any allegation in the show cause notice nor any finding pertaining thereto that the petitioners herein have committed any act independently or otherwise in capacity as the councillors of the Municipality for the alleged misconduct. Therefore, it is clear that in view of 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 Municipalities, so far as it relates to the removal of petitioners as the councillors of the municipality is beyond the scope and ambit of sec. 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. 18.
Hence, the order passed by the Director of Municipalities, so far as it relates to the removal of petitioners as the councillors of the municipality is beyond the scope and ambit of sec. 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. 18. It is made clear that this court has not examined the other aspects of the case, more particularly, the contentions raised by the petitioners that the order has been passed without giving sufficient opportunity to the petitioners, since neither the documents were supplied nor opportunity of making oral submissions on the merits of the case was given though they were specifically demanded by the petitioners. This court has not examine the said aspects and rather it was not required to be examined because the petitioners themselves, as stated above, on their own, made a declaration that they are not desirous to continue or they are not pressing for reinstatement as the members of the Planning Committee of the Area Development Authority and they wish to continue only as the Councillors of Unjha Nagarpalika for the remainder of their term. Therefore, it is needless to mention that so far as the question of observance of principles of natural justice, contentions of both the sides are not examined and not decided. In view of the fact that the matter can be decided on the point that even if the allegations made in the show cause notice and the findings arrived at in the order are considered true, the petitioners could not have been removed as the councillors of the Municipality, it was found by the court that the other contentions are not required to be examined and decided. ” 29. Lastly, the judgment in the case of Maheshbhai Amratlal Patel (supra) pertains to misconduct for performing duties in a sub-committee, cannot be removed from the office of Municipal Councilor. 30.
” 29. Lastly, the judgment in the case of Maheshbhai Amratlal Patel (supra) pertains to misconduct for performing duties in a sub-committee, cannot be removed from the office of Municipal Councilor. 30. Considering the above mentioned factual as well as legal position, I am of the opinion that the present case is a clear abuse of powers vested with the authorities and there is no case made out for initiation of proceedings under Section 37 of the Act as there is no violation of Section 65(2) of the Act Further, the authorities have not given similar treatment to the similarly situated persons and had given differential treatment to the similarly situated persons and has also committed gross error in removing the present petitioners which action can be termed as biased and prejudiced against the present petitioners, not in consonance with law and, more particularly, when the petitioners had not received reasonable and fair opportunity of hearing. On all these counts, more particularly, when the respondent authority has exercised the powers which can be termed as colourable exercise of powers, a strong case is made out to exercise the powers under Article 226 read with Article 227 of the Constitution of India by allowing the present petition. 31. In view of the above, this petition is allowed. The impugned order dated 30.11.2021 passed by respondent no.1-Commissioner of Municipalities is hereby quashed and set aside, and the consequential reliefs prayed for in the petition are granted. Rule is made absolute. No order as to costs. 32. In view the above order passed in the main special civil application, no orders are required to be passed in the civil applications, accordingly, they are disposed off. 33. At this stage, learned advocate Mr.Upadhyay for the respondent no.4 requested to stay the implementation and operation of this order for four weeks. Considering the fact that the term of the present petitioners will be over by February 2023 and also considering the nature of litigation which is going on since long, I am of the opinion that there is no valid reason to accede to the request made by learned advocate Mr.Upadhyay and hence the request for stay is rejected.