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Gujarat High Court
Judgename :R.K.Abichandani
SAVITABEN MADHUKAR MAKIWANA - Appellant
Versus
STATE - Respondent
S.C.A. 1565 of 1997
Decided On : 07/25/1997
There cannot be any dispute about the proposition that the nature of power exercisable under Sec. 37 of the Act is different from the power that may be exercised under Sec. 263 of the Act. Therefore, even if any proceedings are instituted against any Councillor or any President or Vice-President of the Municipality for his removal from office, the State Government would not be precluded from initiating proceedings of dissolution of a Municipality under Sec. 263 of the Act. Depending upon the facts of each case, there can be allegations of mis-conduct against the office bearers which may over-lap with the duties of the Municipality and for such conduct, action may be warranted either under the provisions of Sec. 37 or under Sec. 263 as well. Therefore, the impugned order cannot be assailed on the ground that proceedings were initiated against the President under Sec. 37(1) of the Act or that the prosecution were launched for the offences allegedly committed by the office-bearers.
[Para 12]
(b) Gujarat Municipalities Act, 1963 - Sec. 263(1) - Constitution of India, 1950 - Art. 243U(1) - Dissolution of Municipality cutting short the normal tenure - Serious proposition and Constitution requires reasonable opportunity of being heard to be given before such order - Reasonable opportunity implies that the objections raised against allegations levelled in show cause notice must be duly considered and order must reflect the application of mind - In the case final order is mere reproduction of allegations except for minor & insignificant changes - No application of mind by the concerned Officer is reflected in the impugned order - Order suffers from vice of violation of principles of natural justice & can not be sustained.
The Municipality in its resolution dated 16.1.97 prepared a reply to the Show Cause Notice point-wise. It is a detailed reply against each allegation and at some places it has been stated that fault entirely is of the President and the Vice- President of the Municipality and for their individual wrongs the entire body of Councillors need not be dissolved. It was pointed out in paragraph 16 of the reply dated 10.2.97 that the copy of the letter of the Advocate which was referred to in paragraph 15 of the show cause notice was not received by the Municipality and therefore, they were not able to deal with it.
[Para 14]
On carefully going through the order it leaves a clear impression that the concerned Officer has not at all applied his mind to the objections which were raised by the Municipality against the show cause notice. Observance of principles of natural justice is not an empty formality. Verbation repetition of the allegations in the show cause notice in the final order with no consideration of whatsoever of the details of the reply sent by the Municipality is a clear pointer to the non-applicability of mind by the concerned Officer.
[Para 16]
Under Art. 243U (1) of the Constitution it is provided that every Municipality, unless sooner dissolve under any law for the time being in force, shall continue for 5 years from the date appointed for its first meeting and that the Municipality shall be given a reasonable opportunity of being heard before its dissolution. Therefore, cutting short the normal tenure of a Municipality, which is of five years, is a serious proposition and the Constitution requires reasonable opportunity of being heard to be given to the Municipality before taking any such drastic action. The concept of reasonable opportunity would imply that the objections which are raised against the allegations which are levelled in the show cause notice are duly considered and that the order must reflect the application of mind. The impugned order is badly wanting in this requirement.
[Para 17]
For forming an opinion that a Municipality is not competent to perform the duties imposed on it by or under the Act, it is incumbent upon the State Government to examine the facts and circumstances which are put forth as a defence by the Municipality for explaining its conduct. The expression Municipality is not competent to perform or deliberately fails to perform duties imposed on it under the Act would show that an isolated fault or inaction will have to be very weighty to attract this provision and that the general performance of the Municipality is required to be viewed in light of the explanation that it may have given and the opinion can be formed only after considering all the relevant aspects having bearing on the non-performance or inaction or deliberate defaults or abuse of power, as the case may be. The consequence of dissolution are drastic and therefore, before putting an end to the tenure constitutionally guaranteed, it becomes absolutely necessary for the State Government to strictly observe the principles of natural justice. The impugned order which has been made without application of mind to the objections raised by the Municipality clearly violates the principles of natural justice and cannot be sustained.
[Para 18]
( 1 ) ). The petitioners who are the elected Councillors of the respondent No. 3-Municipality have challenged the order dated 12th February, 1997 - Annexure "h" to the petition, passed by the State Government under the provisions of S. 263 (1) of the Gujarat Municipalities Act, 1963, dissolving the respondent No. 3-Kalol Municipality and appointing the Deputy Collector of mehsana to be the Administrator.
( 2 ) ). In the election of the Municipality which was held in 1994, the petitioners who are 23 Councillors and other Councillors were declared elected. In January, 1995, President, Vice-President and Chairman of the Standing Committee of the municipality were also elected. There were in all 36 Municipal Councillors in the respondent-Municipality, of whom one passed away. According to the petitioners, six defaulting Councillors had passed certain resolutions behind their back, which were not acceptable to the petitioners.
( 3 ) ). The acts of mismanagement had attracted the attention of the concerned authorities and a show-cause notice dated 7th January, 1997 was issued to the municipality by the Government under S. 263 (1) of the Act. The Municipality was called upon to show cause as to why it should not be dissolved under S. 263 (1) for the reasons which were mentioned in the schedule to the show-cause notice. As many as fifteen grounds were mentioned in the said schedule.
( 4 ) ). Thereafter, the Municipality convened a meeting on 16-1-1997 in which previous Resolution Nos. 124 to 143 were disapproved and Resolution No. 149 was passed resolving to defend the Municipality against the show-cause notice, on the grounds detailed therein against each of the allegations which were contained in the schedule of the show-cause notice. A reply to the show-cause notice was sent pointwise by the Municipality in its communication dated 10-2-1997 and the said resolution No. 149 dated 16-1-1997.
( 5 ) ). On 15-1-1997 the Director of Municipalities had initiated proceedings under s. 37 (1) of the said Act against the President of the Municipality. Most of the allegations contained in the notice, a copy of which is at Annexure "f" to the petition, were also contained in the notice issued by the State Government against the municipality under S. 263 (1) of the Act.
( 6 ) ). The hearing of the proceedings under S. 263 (1) was held on 11-2-1997 and the Government was informed by the said communication dated 10-2-1997 that beyond the written explanation given to the show-cause notice, no further representation was to be made. The matter was heard by the Deputy Secretary of the Government Mr. A. A. Nagori, who made the impugned order on 12-2-1997 holding that for the reasons indicated in the Appendix, he was of the view that the kalol Nagar Palika was not competent to discharge its functions and that it should be dissolved and he accordingly ordered the dissolution and appointed the administrator. This order has been challenged in the present petition and at the time of issuance of the notice on 19-2-1997 my esteemed brother Honble Mr. Justice j. M. Panchal, by way of ad-interim relief, directed the parties to maintain status quo as it prevailed on that day. On 22-4-1997 it was declared by the learned Counsel appearing for the State that the Administrator had taken over the charge of the Kalol municipality on 17-2-1997. Therefore, while admitting the petition, my esteemed brother Honble Mr. Justice D. G. Karia ordered that the status quo should continue. Admittedly, thereafter the Administrator has been in-charge of the Municipality.
( 7 ) ). The parties feeling the urgency of the matter moved this Court for final hearing on the grounds that fresh elections would be held as are required to be held within six months from the date of the appointment of the Administrator and that election programme was likely to be declared in a day or two. That is how the matter was urgently heard at the instance of both the sides and it was o
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