Maheshbhai Amratlal Patel and Others vs State of Gujarat and Others

K.S. Jhaveri, J.—By way of present petition, the Petitioners have inter alia prayed for quashing and setting aside the order dated 07th August 2009 passed by the Respondent No. 2-Director of Municipalities.

It is the case of the Petitioners that on 22nd February 2006, a development permission was granted vide Resolution No. 166 by the Town Planning Committee consisting of the Petitioners. The Respondent No. 5-Trust had purchased the land bearing Survey No. 1244/1 for educational purpose in lieu of the land bearing Survey No. 48 which was originally gifted by one Rajbibi. The proceedings were initiated by the said Rajbibi, owner of the land bearing Survey No. 48 to cancel Entry No. 8744 which was recorded reflecting the sale transaction for Revenue Survey No. 1244/1. On 26th February 2007, an appeal was preferred by the said Rajbibi before the Respondent No. 3, challenging the said Resolution No. 166 granting development permission by the Town Planning Committee and the appeal was allowed remanding the matter to the Town Planning Committee for reconsideration of the Resolution. Thereafter, on 07th August 2009 an application u/s 37 of the Gujarat Municipalities Act (hereinafter referred to as ''the Act'') was given by the Respondent No. 6 herein and the Respondent No. 2 passed the order impugned in present petition removing the Petitioner Nos. 2 to 5 from the councillorship of the Respondent No. 4-Nagarpalika as well as removing the Petitioner No. 1 from Presidentship of the Respondent No. 4-Nagarpalika. Hence, present petition.

Mr. B.B. Naik, learned Senior Counsel appearing with Mr. Mehul Rathod, learned advocate for the Petitioner, has submitted that the Respondent No. 6 had no locus standi to prefer the application u/s 37 of the Act; that the exercise of powers by the Respondent No. 2 suffers from assumption of jurisdiction not vested in the Respondent No. 2 under the special Act i.e. T.P. Act; that the impugned order suffers from the vices of delay and laches since the Resolution was passed on 22nd February 2006 and the impugned order is passed on 07th August 2009; that even in the order passed by the Collector remanding the matter, there is no whisper about ''misuse of powers'', ''misconduct'' or ''disgraceful conduct'' by the Petitioners.

In support of his submissions, Mr. Naik has relied upon the decisions (i) in the case of Patel Kantilal Muljidas and Others Vs. State of Gujarat and Others, (ii) in the case of Virbalaben Girishbhai Trivedi and Ors. v. State of Gujarat and Ors. reported in 2010(1) GLH 753 and (iii) in the case of Hansaba Hardevsinh Rana v. District Development Officer and Anr. reported in 2009(3) GLH 529, and submitted that in light of the ratio laid down by the Apex Court as well as this Court in the above cited decisions, present petition may be allowed.

Mr. P.K. Jani, learned Government Pleader, has submitted that the order passed by the Respondent No. 2 is just and proper and the same is passed after appreciating the pros and cons of the matter. In support of his contentions, he has relied upon the Full Bench decision in the case of Mushtaq Ahmed Hasanbhai Mansuri v. V.C. Trivedi reported in 2003(1) GLH 572 and has prayed for dismissal of present petition.

Having considered the rival contentions advanced by the learned Counsel for the respective parties, averments made in the petition, the contents of the impugned order and the documentary evidence produced on record, it transpires that the Resolution No. 166 was passed by the Town Planning Committee comprising of the Petitioners on 22nd February 2006, against which the proceedings were initiated only in the year 2007 and the impugned order came to be passed on 07th August 2009. It is pertinent to note that there is no allegation against the Petitioners that they have committed any act independently or otherwise in capacity as the councillors or President of the Respondent No. 4-Muncipality for the alleged misconduct. Here it would be beneficial to reproduce the relevant paragraph 17 of the decision of this Court in the case of Patel Kantilal Maljidas (supra) relied upon by the learned Senior Counsel for the Petitioners, which reads as under:

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 u/s 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 exparte 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 & 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 said 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. The scheme of the Act is that the decision in respect of the business which has been assigned to the commitee 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 right and function at the general body meeting or otherwise. In the present case, the constitution of the Planning Committee is a creation of the statute itself as provided u/s 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 Section 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 judgment the Division Bench of this Court observed 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 misconducted 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 constituted 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 judgment of another Division Bench in case of Akbarali Kasamali v. N.G. Pandya reported in (1973) 14 GLR 287 has observed as under:

If a person has misconducted 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 judgment 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. 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 misconducted 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 Section 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 & A.K. Trivedi, JJ.) in case of Popatlal Devidan Gandavi Vs. Satishkumar Rameshchandra Ahir and Others, 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 u/s 37 of the Act since he was found to have been involved in criminal case and he was also detained under Prevention of Blackmarketing & 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 & 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 judgment 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 judgment 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 & 6 as under:

In an earlier decision of a Division Bench of this Court reported in Chimanbhai R. Patel and etc. Vs. Anand Municipality, Anand and Others, 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.

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.

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 in capacity as the office bearer of the committee.

XXX XXX XXX 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 u/s 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 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.

Thus, looking to the facts and circumstances of the case, when it is crystal clear that the Petitioners have not taken any decision individually and when there is as such no allegation against them in respect of the same, then in view of aforesaid decision as well as in light of the ratio laid down by this Court in the case of Virbalaben Girishbhai Trivedi (supra) and in the case of Hansaba Hardevsinh Rana (supra), present petition is required to be allowed. It is pertinent to note that the facts as well as the issue involved in the present case are different from the facts and issue involved in the decision of the Full Bench relied upon by Mr. Jani, learned Government Pleader.

In view of aforesaid, the impugned order passed by the Respondent No. 2 being unjust, illegal and improper, is required to be quashed and set aside and present petition is required to be allowed.

For the foregoing reasons, present petition is hereby allowed. The impugned order dated 07th August 2009 passed by the Respondent No. 2-Director of Municipalities, State of Gujarat, is hereby quashed and set aside.

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