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Gujarat High Court
Judgename :R.S.Garg, M.R.Shah
NITINKUMAR M.BRAHMBHATT - Appellant
Versus
STATE OF GUJARAT - Respondent
Special Civil Application 6160 Of 1994
Decided On : 08/30/2006
Election – Gujarat Municipalities Act, 1963 – Sections 11 and 37 – Constitution of India, 1950– Articles 243p to 243zg – Disqualification – Collector in his order, found that representatives of the public were acting dishonestly – Petitioner was elected as Councillor of the General Body of the respondent no. 2-Khambhat Municipality, Municipality had been constituted under the provisions of Act, the State Government under the Act is the competent authority to supervise the functions of respondent no. 2 and Director of Municipalities is officer entrusted with the duties for supervision, and the State Government, acting through Director of Municipalities, performs its functions under the Act – Petitioner was elected as Councillor in the General Body of the respondent no. 2 w. e. f. 5. 11. 1989. It is the claim of the petitioner that being an elected member, he was representing common interest of the public which had elected him – Whether Section 37 is within the competence of the State and whether the Constitution permits the State Government to make such law – Held, The disqualification incurred by the petitioners will have to be suffered by them. They cannot say that despite stay from the High Court, the period has run away. If this argument is accepted, then, some day the State or the respondent would come and say that though there is stay, but, as the period is running out, they would take a drastic action. If such would be the situation – period of four years would be counted from the date of dismissal of the Writ Applications and the period of four years would start running from the date of the order upto the date the High Court granted stay, i. e. 03/05/1994, and the balance period would start running from the date of dismissal of these Writ Applications – Court ask the State Government to take immediate appropriate action against each of the petitioners. Let a copy of this order be also sent with full details of each of the petitioners to the State Election Commission to bring to their notice that these persons have been disqualified under provisions of the Page 1793 Gujarat Municipalities Act and have been removed under Section-37 of the Municipalities Act and, therefore, are disqualified under Section-11 of the said Act and if such disqualification leads to any further consequential disqualification under any other Act or for holding any other post, then, such an action should immediately be taken by the Election Commission – So far as the argument that by action of the petitioners the Municipality had not suffered any financial loss is concerned, that must be rejected – It is to be seen that petitioners, in their conjoint effort, did whatever was possible for them, they passed the resolution, they required the Municipality to issue orders and they observed that these persons would be deemed to have taken charge – Further, because of the intervention of a third agency, if these persons could not succeed in their game, then, wrong committed by them would not become right, because, wrong continues to be wrong and the wrongdoer would be answerable to action by the government – Petitions is dismissed.
( 1 ) FOR our convenience, we are taking facts from Special Civil Application No. 5949 of 1995, which in nutshell, are that, the petitioner was elected as Councillor of the General Body of the respondent no. 2-Khambhat Municipality, the Municipality had been constituted under the provisions of the Gujarat Municipalities Act, 1963 ["the Act" in short], the State Government under the Act is the competent authority to supervise the functions of the respondent no. 2 and the Director of Municipalities is the officer entrusted with the duties for supervision, and the State Government, acting through Director of Municipalities, performs its functions under the Act.
( 2 ) THE petitioner was elected as Councillor in the General Body of the respondent no. 2 w. e. f. 5. 11. 1989. It is the claim of the petitioner that being an elected member, he was representing the common interest of the public which had elected him.
( 3 ) ACCORDING to the petitioner, Panchayats and Municipalities are creating third tier in the administration and are virtually local self-administration which would also be clear from Part-IXA and Articles 243p to 243zg of the Constitution of India.
( 4 ) ON 30th July, 1993, President of the respondent no. 2 and the Executive Committee passed a resolution, resolving that as many as 22 Class-III employees be given substantive appointments on regular/permanent basis. It is also the claim of the petitioner that these employees were working as Rojamdars on various posts with the respondent no. 2. The Collector, after receiving information that as many as 22 persons have been appointed, exercising his powers under Section 258 of the Act initiated proceedings, which culminated in the final order dated Page 1766 18. 9. 1993 cancelling the said appointments of those 22 persons, Annexure: A is the said order.
( 5 ) THE Collector, in his order, found that the representatives of the public were acting dishonestly, contrary to the requirements of law such resolution was passed, the resolution was made in hot haste and even without getting such resolution approved by the General Body appointments were given in the midnight on 30th July, 1993, that is, the date of the resolution and all such persons were held to have taken charge on the very same day. Number of the persons had submitted to the Collector that they were senior to the fresh appointees or persons who were regularised in services and in any case, the appointments were made as a result of favouritism and nepotism. The Collector found that from amongst the persons appointed, [1] Shri Bhagvandas Sukhlal Raval was son-in-law of Shri Dashrathbhai Motibhai Raval - Chairman of the Executive Committee, [2] Shri Rameshchandra Buddhilal Rana was sister s son/nephew of Shri Mohanbhai Himmatlal Rana - Chairman of Water Works Committee and the Member of Executive Committee, [3] Shri Gunvantbhai Hirabhai Vaghri happened to be real brother of Shri Lakhshmanbhai Hirabhai Valmik - Member of Executive Committee, [4] Shri Yogeshkumar M. Brahmbhatt was real brother of Shri Nitinbhai M. Brahmbhatt - Member of Executive Committee, [5] Shri Mukeshbhai Ramanlal Chunara happened to be son-in-law of Shri Jayrambhai Kanjibhai Chunara - Chairman of Light Committee, [6] Shri Jivanlal Jinabhai Rana happened to be the sister s husband of Shri Natubhai Fulabhai Rana - Chairman of Garden Committee and [7] Shri Fulabhai Jamnadas Rana happened to be sister s son/nephew of Shri Bhagvatilal Manilal Rana - Member of Executive Committee. The Collector also recorded that apart from the above, there were other illegalities in appointment. The Collector also found that the Municipality, on one hand, was making submissions before the Industrial Court that due to weak financial position of the Nagarpalika, it was not possible for them to make permanent the workers, while on the other hand, the appointments of favoured and chosen few, who happened to be the relatives, were made and permanent posts were
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