JUDGMENT :

1. With the consent of the learned advocates appearing for the respective parties, the matter is taken up for final disposal.

2. Rule. Mr. Bharat Vyas, learned Assistant Government Pleader waives service of notice of rule on behalf of the respondent nos.1 and 3, Mr. Anand V. Thakkar, learned advocate waives service of notice of rule on behalf of the respondent nos.5, 6, 7, 9, 11 and 14, Mr. D.V. Kansara, learned advocate waives service of notice of rule on behalf of the respondent nos.4, 8, 10, 12 and 13 and Mr. Vijay H. Nangesh, learned advocate waives service of notice of rule on behalf of the respondent no.2.

3. The petitioners are aggrieved by the order dated 18.6.2021 passed by the respondent no.1 – Commissioner, Municipalities Administration (hereinafter referred to as “the Commissioner”) in exercise of the powers conferred under Section 37 of the Gujarat Municipalities Act, 1963 (hereinafter referred to as ‘the Act of 1963’) whereby, the petitioners are removed as Councillors of the respondent no.2-Dhanera Municipality (hereinafter referred to as ‘the Municipality’). It is alleged that the order is passed with mala fide intention because the petitioners belong to the Indian National Congress (hereinafter referred to as ‘INC’) and are in majority in the Municipality.

4. Mr. Rashesh Sanjanwala, learned Senior Advocate submitted that election of President of the Municipality was declared by the Deputy Collector, Dhanera, issuing agenda notice dated 7.8.2020 and elections were held on 20.8.2020. It is submitted that since the ruling party was in minority, the show cause notices under Sections 37 and 70 of the Act of 1993 were issued to the petitioners and at that point of time, the proceedings were initiated only with a view to removing/disqualifying the petitioners so that they cannot participate in the elections of the President and Vice-President.

4.1 It is submitted that the show cause notice under Section 37 of the Act of 1963 was issued considering the inquiry report dated 12.6.2020 and 15.7.2020 recommending to initiate the proceedings against all the Councillors of the Municipality. However, the notice under Section 37, was issued only to the Councillors belonging to the INC though all the 13 charges for which the notice has been issued, resolutions whereof have been passed in general body meeting when other Councillors belonging to the opposite party were also present, and the decision taken were unanimous.

4.2 It is submitted that the scope of Section 37 of the Act of 1963, has been succinctly discussed by this Court in the case of Virbalaben Girishbhai Trivedi vs. State of Gujarat reported in 2010 (1) GLH 753. This Court has held that mere irregularity or even an illegality in the discharge of duties or causing loss to the Municipality does not by itself empower the State Government or its delegate to remove a Councillor or President from the elected office, and there must be a finding supported by evidence to show that the concerned Councillor or the President/Vice- President of the Municipality has been guilty of misconduct in discharge of his duties or of disgraceful conduct or is incapable of performing his duties under the Act. This Court, emphasised that it must be remembered that the President/Vice-President or a Councillor of a Municipality hold an elected office and the order of removal of such elected representative cannot be lightly passed without giving findings supported by evidence to show that one or the other conditions stipulated in Section 37(1) is satisfied.

4.3 Further reliance is placed on the judgment in the case of Sharda Kailash Mittal vs. State of M.P. reported in (2010) 2 SCC 319. It is submitted that Section 41A is in pari materia with Section 37 of the Act of 1963, the Apex Court while explaining the scope of section 41A, has held that it gives power to the State Government to remove the President/Vice-President or Chairman of a committee on grounds mentioned therein. The judgment