2006 Supreme(Guj) 542

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

Headnote:Point in Issue :

       Whether removal of Councillor on ground of misconduct justified.

       Head Note :

       (a) Statute - Interpretation - Principles of - Stated.

       Held :

       It is well settled that if certain provisions of law construed in one way would make them consistent with the Constitution, and another interpretation would render them unconstitutional, the Court would lean in favour of the former construction. The Court also observed that while interpreting an enactment, the Court should have regard not merely to the literal meaning of the words used, but also take into consideration the antecedent history of the legislation, its purpose and the mischief it seeks to suppress. Viewed in that light, the provisions of law should to so construed as to limit their application to acts so performed. [Para 17]

       An intention to produce unreasonable result, is not to be embodied to statute if there is some other construction available.

       Where literal application of the words would defeat obvious intention of the legislation and produce wholly unreasonable result, the Court must do some violence to the words and so achieve that obvious intention to produce rational construction. [Para 23]

       It is well settled that the Courts lean in favour of upholding validity of a statute or provision of law unless conciliation or re-conciliation is not possible or statute/provisions of law are staring in the eyes of the Constitution or are in the teeth of the Constitutional mandate. It is also well settled by now that the Courts do not legislate, but simply interprete law in accordance with the intention and mandate of the Constitution. If the Courts find that action is offending the intention or mandate of the Constitution or the rules are running contrary to the main statute, the Courts would strike upon the illegality and hold it ultra vires the Constitution or the Act. In a given case, it would not be for the Court to find causa omissus if there is none and create a situation whereunder, the Act would become ultra vires the Constitution. In a given situation, the Court may interpret the law in a manner which subserves the justice and leads to positive results. It is also settled that the Courts may read down the law in a manner so that absurdity is ruled out and true colour of the law precipitates. [Para 24]

       Head Note :

       (b) Law - Omission in the provision - Intention of Legislature - Consideration of - Intention behind the provision cannot be used to defeat express words of the provision - Once statutory rule is made without providing any exception, it is not possible to carve out exceptions to such rule by judicial interpretation - Intention behind Legislature may be persuasive factor for the Government to enact a law but if the law is plain and simple then intention of Legislature cannot be used to give a different look and colour to the simple provision.

       Held :

       Intention behind a provision, cannot be used to defeat express words of the provision. Once a statutory rule is made, without providing any exceptions, it is not possible to carve out exceptions to such rule, by judicial interpretation. Nor can an exception from application of a clear and specific rule be claimed on the ground of hardship or similar reasons. Intention behind the legislation may only be a persuasive factor for the Government to enact a law, but if the law is a plain and simple, then the intention of the Legislature cannot be used to give a different look and colour to the simple provision. [Para 22]

       Head Note :

       (c) Constitution of India, 1950 - Part IX A - Article 243 - Gujarat Municipality Act, 1963 (Guj. Act 34 of 1964) - Sections 37 and 11 - Removal of Councillor - Constitutional validity of provision - Finding as to - Under the Constitution State Government has been given power and authority to make provision with respect of all matters relating to election of the Municipalities and thereby to provide disqualification clause also as well subject to provisions of Constitution - Simply because there is no provision in the Constitution the State Legislature cannot enact law for removal of member of Municipality is not acceptable - If State Legislature cannot do any thing in absence of such powers in the Constitution then elected person would cause havocs and create an impossible situation - Therefore, somebody will have to put a check on his powers and the Court will have to hold that the action of the State in enacting a law is not bad or motivated and is not inconsistent with the provision of the Constitution then such an action will be held intra vires the Constitution - Also if such powers of general superintendence over the Municipalities to control the elected body is not reserved in favour of State Government then it would not be possible for State Government to exercise power of superintendence - Court held that Section 37 of the Act does not cross the limits permitted under the Constitution nor provisions run contrary to provision of Constitution.

       Held :

       If the acts, which are bad, illegal and contrary to law, cannot be checked by the State Government, only on the ground that such power is not conferred by the Constitution of India, Court will be leading to anarchy. The Constitution of India is the source of power and it every time provides that if nothing is inconsistent to the provisions contained in the Constitution of India and does not strike on the basic structure of the Constitution, then, such a law can always be made by the State Legislature. If the Constitution does not provide for removal of a Pradhan or a chair person from his office even on commission of his misconduct and the State Legislature cannot do anything in absence of such powers in the Constitution, then, the elected person or the head of the institution would cause havocs, he would create an impossible situation. Therefore, somebody will have to put a check on his powers and the Court will have to hold that if the action of the State in enacting a law is not bad or motivated and is not inconsistent with the provisions of the Constitution, then, such an action on the part of the State will be held to be intra vires the Constitution. [Para 43]

       Barring the submissions that the provisions are ultra vires the Constitution nothing has been brought to Courts notice. In Courts considered opinion, the powers contained in Section 37 of the Municipalities Act cannot be held to be ultra vires the Constitution. Mr. Trivedi is absolutely justified in submitting that if such power is not reserved in favour of the State Government, then, it would be impossible for the State Government, who is exercising the powers of general superintendence over the Municipalities, to control the elected body. In Courts considered opinion, Section 37 does not cross the limits permitted under the Constitution, nor the provisions run contrary to the provisions of the Constitution. The law provides that an opportunity of being heard is to be given and the State Government must record its opinion that such Councillor has been guilty of misconduct in discharge of his duties or of any disgraceful conduct or has become incapable of performing his duties under the Act. [Para 44]

       Section 37 clearly provides that a Councillor can be removed from the office after giving due opportunity of hearing and after recording the opinion that the Councillor has been guilty of misconduct in the discharge of his duties or of any disgraceful conduct or so. [Para 47]

       Head Note :

       (d) Gujarat Municipalities Act, 1963 (Guj. Act 34 of 1964) - Sections 37 and 11 - Removal of Councillors - Ground of misconduct - Validity - Finding of - Councillors of Municipality are Trustees - They should be trustworthy and cannot commit breach of trust - When they start acting in their own favour or in favour of those only who related to them then they act dishonestly as in the case - A dishonest action is obviously a misconduct - Councillors of Municipality in the case were members of executive committee appointed those in whom they were interested - It appears that even without approval of the resolution by General body the resolution was put into communication, it was executed and on some person pay money to the President and others the appointment orders were issued in the mid-night - The games played in dark of midnight were acts of treachery and dishonesty - Present is a case where every body knew the financial position of Municipality was bad it was unable to meet its liability - Despite twenty two posts were created and appointments were made in haste only to their relatives - Conduct of all those persons who were Councillors of Municipality can be held bona fide and, therefore, they were rightly removed.

       Held :

       When the Chief Municipal Officer or the Chief Officer of the Municipality brings certain facts to the notice of the elected body, then, such reports and the information cannot be thrown in the dust-bin by the elected body. The elected body is required to look after the interest of the Municipality. They are Corporators and not conspirators, they are trustees, they should be trustworthy, they cannot commit breach of the trust. When the elected body starts acting in its own favour or in favour of those only, who are related to them, then, it acts dishonestly. A dishonest action cannot be termed as good conduct, it obviously would be a misconduct. The members of the Executive Committee appointed those in whom they themselves were interested. From the first order passed by the Collector, it would clearly appear that not only the relations were appointed, but, even without approval of the resolution by the general body, the resolution was put into communication, it was executed and on some persons paying money to the President and others, the appointment orders were issued in the midnight. The games, which have been played in the darks of the midnight, if see the light of the day and none can justify the acts, then, such acts would be the act of treachery and dishonesty. [Para 49]

       Present is not a case where each member, after discussion, recorded the opinion that twenty two posts should be created. Present is a case where everybody knew that the financial position of the Municipality was bad, it was unable to meet its liabilities, it was unable to pay the regular salary to its permanent staff. Despite all odds, these twenty two posts were created, these twenty two persons were appointed and while doing so, the persons, who were senior to these twenty two persons, were kept apart and were at all not considered. If this was the total conduct of the members in the meeting, which was to pass the resolution, then, the democracy is going to the dogs. Democracy does not mean an authority to defraud others. The peoples representative cannot betray the confidence of the elector for his personal gains. The elected member cannot be allowed to harm the institution, nor can he be allowed to deceive the people. When a Corporator becomes a conspirator and the nails start eating the finger, the survival of the institution would become impossible. [Para 51]

       Court is unable to hold that the conduct of all those persons was bona fide and, therefore, no action could be taken against them. [Para 52]

       Head Note :

       (e) Gujarat Municipalities Act, 1963 (Guj. Act 34 of 1964) - Section 37 and 11 - Dismissal - Ground of misconduct - Period of four years of disqualification - Order of stay and injunction - Counting of - The disqualification incurred by petitioners will have to be suffered by them - They cannot say that despite of stay from High Court the period of four years has run out - Court held that period of four years would be counted from the date of dismissal of writ petitions and the period of four years would start running from the date of order upto the date High Court granted stay and balance period would start running from the date of dismissal of these writ application.

       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, then, nobody wriggles out of it. [Para 72]

       Court must hold that the 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. [Para 73]

       Law Laid Down :

       In the case of interim orders subject to final orders Court can correct or repair the damage caused by its order at the final stage of order.

       Case Law Analysis :

       Rasikchandra Devshanker Acharya & Ors. vs. State of Gujarat & Ors., 1995 (1) GLR 36 [Para 12 & 14];; Ram Beti etc. etc. vs. District Panchayat Rajadhikeri and Ors., AIR 1998 SC 1222 [Para 13 & 38];; State of Bihar & Ors. vs. Smt. Charusila Dasi, AIR 1959 SC 1002 [Para 17];; Kedar Nath vs. State of Bihar, AIR 1962 SC 995 [Para 17];; K.P. Sudhakaran & Anr. vs. State of Kerala & Ors, 2006 (5) SCC 386 [Para 22];; Anjar Municipality & Ors. vs. J.M. Vyas, 1999 (3) GLR 1892 [Para 37];; Mohanlal Tripathi vs. District Magistrate, Rai Bareilly, 1992 (4) SC 80 [Para 39];; Baldev Singh Gandhi vs. State of Punjab & Ors., 2002 (3) SCC 667 [Para 45];; Apparel Export Promotion Council vs. A.K. Chopra, 1999 (1) SCC 759 [Para 64] ;; Shree Chamundi Mopeds Ltd. vs. Church of South India Association CSI Cinod Secretariat, Madras, 1992 (3) SCC 1 [Para 68];; Mahanadi Coalfieds Ltd. vs. Orient Paper & Industries Ltd.& Ors., 1995 Supp.(2) SCC 717 [Para 68];; State of M.P. & Ors. vs. M.V. Vyavsaya & Co., 1997 (1) SCC 156 [Para 68].-Relied on

       B.K. Shukla vs. Natverlal Ratanji Kevat & Ors., 1990 (2) GLR 1211 [Para 42];; Akbarali Kasamali Ravjani vs. N.G. Pandya, District Development Officer, 1973 GLR 287 [Para 57];; V.T.S. Thyagasundaradoss Thevar & Ors. vs. V.T.S. Sevaga Pandia Thevar & Anr., AIR 1965 SC 1730 [Para 67].-Distinguished

       Conclusion :

       Having found misconduct of Councillor order of removal therefrom the post is justified.

       Cases Referred :

       Lalit Mohan Pande vs. Pooran Singh & Ors., 2004 (6) SCC 626;; State of Gujarat & Ors. vs. Akhil Gujarat Pravasi Vahan Sanchalak Mahamandal & Ors., 2004 (3) GLR 1904;; Ramesh Mehta vs. Sanwal Chand Singhvi & Ors., 2004 (5) SCC 409;; Kanoria Chemicals and Industries Ltd. & Ors. vs. U.P. State Electricity Board & Ors., 1997 (5) SCC 772.

       Decided in Favour of :

       Respondent

       Petition Dismissed