Pragneshkumar Jayantibhai Patel v. State Of Gujarat
2022-10-13
SANDEEP N.BHATT
body2022
DigiLaw.ai
ORDER : 1. Challenge in this petition is made by the petitioners to the impugned show-cause notice dated 03.10.2022 issued under Section 263(1) of the Gujarat Municipalities Act, 1963 by respondent no.2 – the Deputy Secretary, Urban Development and Urban Housing Department, Gandhinagar. 2. Heard learned advocates for the respective parties. 3. At the outset, Ms.Shah, learned Government Pleader with Ms. Pathak, learned AGP for the State has raised objection that the present petition is not maintainable under Article 226 of the Constitution of India, as apparently the respondent authority by exercising its jurisdiction vested with its has issued the impugned show-cause noticed dated 03.10.2022 under Section 263(1) of the Act and has given necessary reasons along with show-cause notice and ask the President/Vice-President of the Board Nagarpalika to explain the same on or before 10.10.2022 and since neither they have not responded to the impugned showcause notice by filing any reply, nor the Municipality has passed appropriate resolution to that effect and filed any reply nor any elected members has filed reply, the present petition is not maintainable as it is filed against the show-cause notice. She has further submitted that she will also address on merits if it is required after hearing the petitioners. 4.1 Mr. B.M. Mangukiya, learned advocate for the petitioners has submitted that the impugned show-cause notice dated 03.10.2022 is issued with some ulterior motive as no confidence motion is signed by more than 13 Councillors. He has further submitted that said motion is moved under Sections 47 and 48 read with Section 51 of the Act against the Chief Officer on 17.08.2022, but the said motion was not moved further and ordered to be removed from file by the President on 24.08.2022. He has further submitted that no confidence motion is also moved against the Vice-President of the Municipality on 17.08.2022 by 16 Councillors. The said notice was accepted by the Chief Officer on 18.08.2022. He has further submitted that no confidence motion was also moved against respondent no.3. The said motion was moved under the signatures of the 16 Councillors. The no confidence motion can be moved under Section 36 of the Act which is required to be signed by not less than 1/3rd members of the total members of the Municipality. Since the house consisted of 36 Councillors, 16 Councillors consisted of more than 1/3rd of total strength of the Municipality.
The no confidence motion can be moved under Section 36 of the Act which is required to be signed by not less than 1/3rd members of the total members of the Municipality. Since the house consisted of 36 Councillors, 16 Councillors consisted of more than 1/3rd of total strength of the Municipality. The said motion of no confidence was moved on 02.08.2022. 4.2 He has further submitted that once the motion of no confidence is served to the Chief Officer and the President, the President is duty bound to call the meeting of the house within 15 days from the date of receipt of the motion of no confidence, however, the President did not call the meeting. He has submitted that if the President fails to call the meeting, the Chief Officer has to make a report to the competent Authorities and the competent Authorities shall call the meeting within 15 days from the date of such communication forwarded and received by the competent Authorities. He has further submitted that as per the provisions contained in the Act, which is amended, the Regional Commissioner of Vadodara has ordered to convene the meeting of the General Board of Borsad Municipality. He has submitted that in pursuance of the order passed by the Regional Commissioner, the agenda notice was issued by the Chief Officer calling the meeting of the General Board of Borsad Municipality. He has submitted that the agenda notice was issued by the Regional Commissioner, Municipality, Vadodara by his notice dated 22.09.2022. He has further submitted that the meeting was convened by the aforesaid agenda notice on 28.09.2022 wherein the Deputy Collector and Sub Divisional Officer, Borsad remained present. 4.3 He has further submitted that in the meantime, the President and Vice-President were addressed another communication dated 31.08.2022 and has pointed that the President has no power to drop the motion against the Chief Officer in view of the provisions of Sections 47 and 48 read with Section 51 of the Act. He has submitted that the board meeting is required to be called to discuss the said notice. However, the said notice has been dropped on the ground that it is violative of Article 309 of the Constitution of India.
He has submitted that the board meeting is required to be called to discuss the said notice. However, the said notice has been dropped on the ground that it is violative of Article 309 of the Constitution of India. 4.4 He has also submitted that thereafter, the petitioner received the show-cause notice dated 03.10.2022, which has been issued in purported exercise of powers under Section 263 of the Act. He has submitted that along with the said show-cause notice, the annexure has also been supplied to the petitioner, wherein under Head A and B, it has been stated that the Municipality has acceded its powers. He has submitted that it has been stated that the Municipality has passed a resolution in the meeting held on 30.07.2022, wherein the committee was constituted for supervising the work which have been directed to be carried out from the grant received from the Government. He has submitted that the action of the Municipality to pass the resolution and appointing a committee is beyond the powers of the Municipality under the provisions of Section 55 read with Section 271 of the Act. He has submitted that thus, the Municipality has committed breach of the statutory provisions and showed inability to administer. 4.5 He has further submitted that in the meeting of the General Board of the Municipality, which was held on 30.07.2022, passed a resolution No.11, wherein the committee was ordered to be constituted consisting of 7 members to supervise the work worth about Rs.3 crores which is a grant received from the Municipal Finance Board, Gandhinagar. He has therefore submitted that in view of Section 67 of the Act, the Chief Officer cannot be considered as absolute monarch of the Town to carry out the work of inviting tender and others, which can be seen in the present case. 4.6 He has further submitted that under the head of acceding powers by the Municipality, the charge has been given under sub-head 1 to 7. He has submitted that considering all the charges, levelled against the Municipality, no reason to believe that the notice is required to be issued by exercising the powers under Section 263 of the Act.
4.6 He has further submitted that under the head of acceding powers by the Municipality, the charge has been given under sub-head 1 to 7. He has submitted that considering all the charges, levelled against the Municipality, no reason to believe that the notice is required to be issued by exercising the powers under Section 263 of the Act. He has further submitted that such powers can be exercised only in the case where; (i) Municipality is incompetent to perform its duties, (ii) There is default in performance of duties by the Municipality and (iii) There is exceed or abuse of powers by the Municipality. 4.7 He has submitted that in the present case, no case is made out looking to the entire tenor of notice and therefore, notice is issued with mala fide intention. He has submitted that he has also pleaded mala fide in the petition itself and therefore, he has submitted that when the notice itself is exercise of powers in de-hors the powers vested in mala fide manner by by abuse of powers vested with the Authority under Section 263 of the Act and therefore, this is a fit case where this Court should exercise its jurisdiction under Article 226 of the Constitution of India as show-cause notice is apparently illegal and issued with mala fide intention. 4.8 In support of his submissions, he has relied upon the decision of the Hon’ble Apex Court in the case of Whirlpool Corporation versus Registrar of Trade Marks, Mumbai reported in AIR 1999 SC 22 . He has submitted that the present case is clearly satisfied the requirement of exercise of powers in the case of showcause notice and it is not necessary for this Court to direct the present petitioners to file reply to the showcause notice. 4.9 He has submitted that the notice itself can be termed as malicious notice on the face of it and therefore, insistence of alternative remedy or objection which is raised by the learned Government Pleader about the maintainability of this petition is not required to be entertained.
4.9 He has submitted that the notice itself can be termed as malicious notice on the face of it and therefore, insistence of alternative remedy or objection which is raised by the learned Government Pleader about the maintainability of this petition is not required to be entertained. 4.10 During the course of hearing, he has also drawn attention of this Court towards some of the development by showing some documents and has submitted that there is further communication as well as the fact that now the meeting is also called on 17.10.2022 for passing of resolution in the presence of Deputy Collector and therefore, he has submitted that since the State Government ruling by one party and the Municipality ruling by opposite party, therefore, is targeting by keeping some vendetta. He has submitted that in view of above facts, extra-ordinary powers of this Court under Article 226 of the Constitution of India is required to be exercised in the present case. 5.1 Per contra, Ms. Shah, learned Government Pleader with Ms. Pathak, learned AGP for the State Authorities has submitted that the petition itself is premature. She has submitted that as such, no cause of action is arisen looking to the averments made in the petition as well as the fact that the Authority has issued show-cause notice only. She has submitted that looking to the tenor of entire petition, if such reply is prepared by the petitioner and submitted to the authorities pursuant to the show-cause notice impugned, the authorities by now should have been decided the matter. She has further submitted that as such no prejudice is caused to the petitioners and therefore, the present petition is not maintainable.
She has further submitted that as such no prejudice is caused to the petitioners and therefore, the present petition is not maintainable. She has drawn the attention of this Court towards various allegations made in the show-cause notice which is required to be replied by the Municipality by showing justifiable reasons and showcause notice is issued on the basis of the prima facie case and the show-cause notice can be challenged only in case where notice is issued without any authority of law or without having any jurisdiction or in case of mala fide which is required to be proved and demonstrated by the petitioner, which is not done in the present case, though he has pleaded some allegations of mala fide in the present petition, which is general in nature, which is not sufficient to exercise the powers by this Court. She has also drawn the attention of this Court towards various provisions of Sections 84, 67, 55, 271 and 65(2) of the Act in addition to Section 263 of the Act and has contended that considering all these provisions, the Authority has not committed any error and the authority has exercised the powers vested with it under the statute and looking to the tenor of the notice, all the necessary details are given, for which, explanation is sought for and therefore, it cannot be said that the notice is issued with mala fide intention or without jurisdiction. She has submitted that no case is made out to interfere by this Court in the impugned notice. 5.2 In support of her submissions, she has relied upon the following decisions : (i) (2002) 10 SCC 444 – Indo Asahi Glass Co. Ltd. Versus Income Tax Officer (ii) 1998 (3) GLR 1989 – Jyotiben Chandrashekhar Shinde versus State of Gujarat (iii) 2003 (4) GLR 3088 – State of Gujarat versus Nirmalaben Waghela (iv) (2006) 12 SCC 28 – Union of India versus Kunesetty Satyanarayana 5.3 She has submitted that in any case, the present petition is filed at very pre-mature stage and as such, there is no cause of action arisen for the petitioners to file such petition, otherwise also, the petition against the show-cause notice is generally not acceptable by this Court, more particularly, under Article 226 of the Constitution of India.
She has submitted that unless the notice itself is nullity or notice is issued without jurisdiction or any mala fide is pleaded and proved, then also this Court can exercise the powers under Article 226 of the Constitution of India. She has submitted that in view of above facts and provisions of law, this petition may be dismissed, as not maintainable. She has submitted that even otherwise, this petition is meritless and is required to be dismissed. 6.1 I have heard learned advocates for the respective parties and I have also considered the material on record. It is true that the present petition is filed against the impugned notice only. It is relevant to note that prayers made by the petitioners in this petition, which are as under : “29(A) Be pleased to issue a writ of prohibition or in nature of prohibition and/or writ of mandamus or in the nature of mandamus or any other appropriate writ, order or direction, and direct the respondents to forbear with the further proceedings of the impugned show cause notice dated October 03,2022; (B) Be pleased to issue a writ of mandamus or in the nature of mandamus or any other appropriate writ, order or direction, and quash and set aside the impugned show cause notice dated October 03, 2022; (C) Pending admission and final disposal of the present petition, be pleased to stay the further proceedings of the show cause notice dated October 03, 2022; (D) Be pleased to pass such other and further orders as may be deemed fit and proper.” 6.2 In view of above, now looking to the tenor of the notice impugned, the notice was issued on 03.10.2022 by giving detail reasons for show-cause of notice and sought explanation by giving time upto 10.10.2022 by the Authorities. The powers are exercised under Section 263(1) of the Gujarat Municipalities Act. Section 263(1) of the Act reads as under : “263.
The powers are exercised under Section 263(1) of the Gujarat Municipalities Act. Section 263(1) of the Act reads as under : “263. Power of State Government to dissolve or supersede municipality in case of incompetency, default or abuse of power :- (1) If, in the opinion of the State Government, a municipality is not competent to perform, or deliberately makes default in the performance of the duties imposed on it by or under this Act, or otherwise by law or exceeds or abuses its powers, the State Government may, after giving the municipality an opportunity to render an explanation, by an order published with the reasons therefore, in the Official Gazette, declare the municipality to be incompetent or in default, or to have exceeded or abused its powers, as the case may be and may dissolve such municipality.” 6.3 Considering the powers which are vested with the Authorities, this Court is of the view that there is no error of jurisdiction in issuing the impugned notice. 6.4 Now, considering the tenor of the notice impugned, which gives elaborate reasons and issues are given in detail to be explained to the Authorities by the Municipality as to why further action is not required to be taken by exercising the powers under Section 263(1) of the Act. That notice is yet not responded to by the Municipality/President/Vice-President/any elected Members of the Municipality. Considering the ratio laid down by the Hon’ble Apex Court in the case of Whirlpool Corporation (supra), more particularly para : 14 and 19 thereof, which read as under, wherein it is held that the powers under Article 226 of the Constitution of India can be exercised against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation. “14. Under Art. 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a Writ Petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction.
But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order of proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point put to cut down this circle of forensic Whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field. 19. Much water has since flown beneath the bridge, but there has been no corrosive effect on these decisions which, though old, continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a writ petition under Art. 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation.” In view of above, considering the present case, this Court finds that the above decision is not helpful to the present petitioners. 6.5 Further, if we look at the judgment cited by learned Government Pleader for the State Authorities at the bar in the case of Kunisetty Satranarayana (supra), the Hon’ble Apex Court has held that writ jurisdiction is discretionary jurisdiction and such discretion under Article 226 of the Constitution of India should not ordinarily be exercised by quashing a show-cause notice or charge-sheet. It is also reiterated that in the writ jurisdiction, it should be exercised in rare and exceptional cases where it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal, but ordinarily, the High Court should not interfere in such matter. The same view is taken by the Hon’ble Apex Court in the case of Indo Asahi Glass Co. Ltd. (supra) and even the judgment of this Court in the case of Jyotiben Chandrashekhar Shinde (supra).
The same view is taken by the Hon’ble Apex Court in the case of Indo Asahi Glass Co. Ltd. (supra) and even the judgment of this Court in the case of Jyotiben Chandrashekhar Shinde (supra). 6.6 Keeping the entire facts and the above ratio in mind, this Court is of the view that there is no valid reason to interfere in the impugned notice issued by the authorities by exercising the powers under Article 226 of the Constitution of India. There is no error committed by the Authorities and the Authorities has jurisdiction to exercise the powers. There is no arbitrariness or any apparent breach of any provisions of law by the Authorities. This petition therefore needs to be dismissed. 7. For the reasons recorded above, the present petition is dismissed.