( 1 ) THIS petition challenges show-cause notices dated 21-11-2008 and 2-1-2009 issued in exercise of powers under Sec. 37 of the gujarat Municipalities Act, 1963 (the Act ).

( 2 ) THE petitioner was elected as Councillor of Jetpur-Navagadh Municipality in February, 2003. During the tenure of the said elected body the petitioner held post of President between 12-9-2005 to 4-3-2008. Impugned show-cause notices have been issued on 21-11-2008 and 2-1-2009 and both the notices specifically referred to the alleged defaults during the period of office held in the earlier tenure of the body of which the petitioner was Councillor. It is an accepted position that fresh elections took place in February, 2008 and the petitioner was declared to be elected vide certificate issued by the Election Officer on 19-2-2008.

( 3 ) IN the backdrop of aforesaid facts, learned Advocate for the petitioner has submitted that the impugned notices are bad in law, being without jurisdiction considering the fact that the defaults alleged pertained to the period relatable to the preceding elected body which is no longer in existence and in the newly elected body the petitioner has been re-elected with effect from 19-2-2008. Therefore, it was submitted that in light of the decision of this Court in the case of Chhanalal A. Patel v. State of Gujarat, 1960 GLR 260 removal from office has to be confined in point of time only to the term of the local body because the misconduct has to be relatable to the term of office and not at any point or period of time beyond the term of office. That though the said judgment was in context of provisions of Bombay Local Boards Act, 1923 the ratio would be applicable. According to the learned Advocate the petitioner deserves to succeed on this limited count.

( 4 ) LEARNED Assistant Government Pleader submitted that the proceedings were only at the stage of showing cause and the petitioner must be directed to tender reply and the same shall be considered in accordance with law by the Authority. The petition therefore was not required to be entertained.

( 5 ) SECTION 37 of the Act reads as under : "37 (1) The State Government may remove from office - (a) any Councillor of a municipality, [on its own motion or on receipt of] a recommendation of the municipality in that behalf supported by a majority of the total number of the men Councillors of the municipality, or (b) any President or Vice-president of a municipality. If, after giving the councillor, President or as the case may be Vice-president an opportunity of being heard and giving due notice in that behalf to the municipality and after making such inquiry as it deems necessary, the State Government is of the opinion that the Councillor, President or as the case may be, Vice-president has been guilty of misconduct in the discharge of his duties or of any disgraceful conduct or has become incapable of performing his duties under this Act. (2) A President or Vice-president removed under sub-sec. (1) shall not be eligible for re-election as a President or Vice-president during the remainder of the term of the, municipality".

( 6 ) A plain reading indicates that either a Councillor, or a President or a vice-president of the Municipality may be removed from office after giving an opportunity of hearing to such defaulter delinquent and after making such inquiry as necessary by recording an opinion that such a person has been guilty of misconduct in the discharge of his duties, or of any disgraceful conduct, or has become incapable of performing his duties under the Act. Sub-section (2) of Sec. 37 of the Act indicates that a person holding a post of President or Vice-president removed under sub-sec. (1) shall not be eligible for re-election as a President or Vice-president during the remainder of the term of the municipality. Thus, a conjoint reading of the provisions indicates that the default has to be in relation to the post held during tenure of an elected bod