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SCA/15706/2010 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 15706 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================
1.
Whether
Reporters of Local Papers may be allowed to see the judgment ?
Yes
2.
To
be referred to the Reporter or not ?
Yes
3.
Whether
their Lordships wish to see the fair copy of the judgment ?
No
4.
Whether
this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
No
5.
Whether
it is to be circulated to the civil judge ?
No
=========================================
NATWARBHAI
ALABHAI PARMAR - Petitioner(s)
Versus
SECRETARY
& 4 - Respondent(s)
========================================= Appearance
:
MR HRIDAY
BUCH for
Petitioner(s) : 1,
MR PRANAV DAVE, ASSTT. GOVERNMENT PLEADER for Respondent(s) : 1,
RULE SERVED BY DS for Respondent(s) : 1.2.1,1.2.2 - 3, 5,
MR DHAVAL D VYAS for Respondent(s) : 4, MR
CL SONI for M/S S G ASSOCIATES for Respondent(s) : 5,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 28/02/2011
ORAL
JUDGMENT
[1.0] By
way of this petition under Article 226 of the Constitution of India, petitioner has prayed for an appropriate writ, direction or order quashing and setting aside the impugned order dated 13.08.2010 passed by respondent No.2 - Collector, Surendranagar in Municipal Case No.2/2010 (Annexure A) and further to declare that respondent No.5 has ceased to be the Councilor of respondent No.4 Municipality and the said office stands vacant.
[2.0] That
the petitioner and respondent No.5 herein were elected as Councilors of the Thangadh Municipality in the election which was held on February 2008. It is the case on behalf of the petitioner that respondent No.5 has always been irregular in remaining present as Councilor and that she has remained absent even during the General Body Meeting of the Councilors. That as respondent No.5 consistently remained absent during the General Body Meeting held on 03.11.2008, 04.03.2009, 19.06.2009, 14.10.2009 and 13.11.2009 without applying for leave, according to the petitioner, respondent No.5 ceased to be the Councilor and her office had fallen vacant and therefore, the petitioner submitted an application before the Collector to pass an order under Section 39 of the Gujarat Municipalities Act, 1963 (hereinafter referred to as "Act, 1963") to declare that respondent No.5 has ceased to be the Councilor and her office had fallen vacant. That the said case was registered as Municipal Case No.2/2010 and respondent No.5 was served with the notice and was called upon to show-cause why an order should not be passed that she has ceased to be the Councilor of the Municipality and her post be not declared vacant. That respondent No.5 as well as the Chief Officer of Thangadh Nagarpalika appeared before the Collector and respondent No.5 submitted the written reply on 09.08.2010 submitting the reason for which she had remained absent in the aforesaid meetings and tried to justify her absence by submitting that on 03.08.2010, she had gone to Haridwar and therefore, she did not remain present in the meeting. It was further submitted that on 04.03.2009, she was not well and therefore, she did not remain present in the meeting. It was also further submitted that on 19.06.2009, she had gone to Dwarka and therefore, she did not remain present in the meeting on that day. It was also further submitted that on 14.10.2009 again, she had gone to Dwarka and therefore, she did not attend the meeting. It was further submitted that on 13.11.2009, she was not well and therefore, she did not attend the meeting. Thus, she tried to justify her absence from remaining absent in the aforesaid meetings. That the Collector by impugned order directed the proceedings and passed an order to withdraw the said notice by observing that nothing is on record that respondent No.5 was served with the notice/agenda of the aforesaid General Meeting and that nothing is on record that respondent No.5 has deliberately remained absent in the aforesaid meetings. Being aggrieved and dissatisfied with the impugned order passed by the Collector, Surendranagar dated 13.08.2010 withdrawing the notice against respondent No.5, petitioner has preferred the present Special Civil Application under Article 226 of the Constitution of India.
[3.0] Shri
Hriday Buch, learned advocate appearing on behalf of the petitioner has vehemently submitted that the impugned order passed by the Collector, Surendranagar in withdrawing the notice against respondent No.5 is contrary to the provisions of statutes more particularly Section 39 of the Act, 1963. It is submitted that Section 39 of the Act, 1963 provides that if any Councilor absents himself or herself for more than four consecutive months without the leave of the Municipality, such Councilor shall be ceased to be a Councilor and his/her office shall be vacant. It is submitted that while considering such an absence of the Councilor, the intention of a Councilor is not required to be considered at all and/or reasons for remaining absent are not required to be considered. It is submitted that moment it is found that any Councilor during his term of office, absents himself for more than four consecutive months from the Municipal Borough unless leave not exceeding four months so as to absent himself has been granted by the Municipality; absents himself for four consecutive months from the meetings of the Municipality without the leave of the Municipality, he/shall ceased to be a Councilor and his/her office shall be vacant. Therefore, it is submitted that the impugned order passed by the Collector withdrawing the notice against respondent No.5 on the ground that nothing is on record that there was any malafide intention and/or any other intention on the part of respondent No.5 in remaining absent, cannot be sustained and the same deserves to be quashed and set aside.
[3.1] It
is further submitted by Shri Hriday Buch, learned advocate appearing on behalf of the petitioner that even the impugned order passed by the Collector withdrawing the notice against respondent No.5 on the ground that nothing is on record whether the agenda of the aforesaid meetings was served upon respondent No.5or not, also cannot be sustained inasmuch as it was never the case on behalf of respondent No.5 that she was not served with the agenda of the aforesaid meetings. It is submitted on the contrary respondent No.5 has tried to justify her absence in the aforesaid meetings. Therefore, it is submitted that the Collector has passed the impugned order on the ground which was not even pleaded by respondent No.5, therefore, it is requested to allow the present petition and grant the relief as prayed for.
[4.0] Petition
is opposed by Shri C.L. Soni, learned advocate appearing on behalf of respondent No.5. It is submitted that considering the provisions of Section 39 of the Act, 1963, the Collector has rightly withdrawn the notice against respondent No.5. It is submitted that Section 39 provides for remaining absent for more than three consecutive months without any leave of the Municipality and not with respect to remaining absent in the meetings of the Municipality.
[4.1] Shri
Soni, learned advocate appearing on behalf of respondent No.5 relying upon the decision of the learned Single Judge in the case of Ganpat Mohanbhai Vasava V. Additional Development Commissioner and Ors. reported in 2008 (2) GLH 342 and the decision of the Division Bench of this Court in the case of Manubhai Hathibhai Patel V. Sejalben Janakbhai Patel reported in 2010 JX (Gujarat) 337 in support of his submission that as such petitioner has no locus to file the present petition. Making above submissions and relying upon above decisions , it is requested to dismiss the present petition.
[5.0] Heard
learned advocates appearing on behalf of respective parties at length and considered the impugned order. At the outset it is required to be noted that a report was submitted to the Collector at the instance of the petitioner making a grievance against respondent No.5 that she has remained absent for more than four consecutive months without any leave of the Municipality and/or remained absent consecutively in four meetings of the General Body of the Nagarpalika. It was the case on behalf of the petitioner that in view of the above, respondent No.5 has ceased to be the Councilor of the Nagarpalika and the post held by her had fallen vacant. Respondent No.5 was served with the notice by the Collector and in reply to the same, respondent No.5 as such admitted remaining absent in the meeting of the General Body of the Nagarpalika held on 03.11.2008, 04.03.2009, 19.06.2009, 14.10.2009 and 13.11.2009, however, she tried to justify her absence and tried to submit that there was no other intention of respondent No.5 in remaining absent in the said meeting. The Collector accepted the same and passed the impugned order to withdraw the notice by observing that nothing is on record that there was any malafide intention and/or other intention on the part of respondent No.5 in remaining absent. Considering Section 39 of the Act, 1963, the impugned order passed by the Collector withdrawing the notice on the aforesaid ground cannot be sustained. Considering Section 39 of the Act, 1963, the intention on the part of the Councilor to remain absent without leave of the Municipality is not required to be considered at all and the same has no relevance at all. The moment it is found that the Councilor has remained absent for the period as mentioned in section 39 without the leave of the Municipality, in that case, automatically she ceases to be the Councilor and his/her post has fallen vacant. While considering Section 39 of the Act, 1963, the intention and the reasons for remaining absent without leave is not required to be considered at all. Under the circumstances, the impugned order passed by the Collector withdrawing the notice on the aforesaid ground cannot be sustained which deserves to be quashed and set aside as the same is contrary to Section 39 of the Act, 1963.
[5.1] From
the impugned order it appears that the Collector has withdrawn the notice against respondent No.5 on the ground that nothing is on record whether the agenda of the aforesaid meetings was served upon respondent No.5 or not. It is to be noted that as such it was never the case on behalf of respondent No.5 that the agenda of the aforesaid meetings was not served upon her. Thus, the ground on which the Collector has withdrawn the notice was not even pleaded by respondent No.5 and/or even same was not the case on behalf of respondent No.5. Under the circumstances, on the aforesaid ground, the impugned order cannot be sustained and deserves to be quashed and set aside.
[5.2] Now,
so far as the last contention on behalf of respondent No.5 that the petitioner has no locus to approach the Collector and/or to challenge the impugned order passed by the Collector before this Court is concerned, the same has no substance. Any Councilor aggrieved by the decision of the Collector passed under section 39 of the Act, 1963 can challenge the same before the higher Forum. It appears that it was the petitioner who approached the Collector for taking action under Section 39 of the Act, 1963 and to declare that respondent No.5 has ceased to be the Councilor and her post is to be declared as vacant. Therefore, when the Collector has passed the impugned order withdrawing the notice which was initiated at the instance of the petitioner, petitioner can very well challenge the same before the higher Forum and before this Court under Article 226 of the Constitution of India.
[5.3] So
far as the reliance placed upon aforesaid two decisions i.e. decision of the Division Bench of this Court as well as of the learned Single Judge is concerned, the same shall not be applicable in the facts and circumstances of the present case as in the aforesaid two decisions, Section 57(3) of the Gujarat Panchayat Act was under consideration and Division Bench and learned Single Judge of this Court were considering the definition of "aggrieved party" as provided under Section 57(3) of the Gujarat Panchayat Act. Considering Section 39 of the Act, 1963 as well as section 57(3) of the Gujarat Panchayat Act, the aforesaid two decisions will not be of any assistance to respondent No.5.
[6.0] In
view of the above and for the reasons stated above, petition succeeds and the impugned order dated 13.08.2010 passed by the Collector, Surendranagar in withdrawing the notice against respondent No.5 is hereby quashed and set aside and it is held and declared that respondent No.5 is ceased to be the Councilor of the Thangadh Nagarpalika and her post has fallen vacant. Rule is made absolute to the aforesaid extent. No costs.
(M.R.
Shah, J.)
*menon
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