Point of Law - Statutory provisions of resignation under section 35 (5) are completely and wholly different than the one under section 37 of the Municipality Act and therefore, interpretation which has been pressed into the service on the part of the petitioners at the time of removal is unsustainable. Under Section 37 in the proceedings once the show cause notice is issued and opportunity was availed to the other side, nothing stops the effect of removal statutorily.

ORDER :

(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)

1. The petitioner before this Court is seeking to challenge the legality and validity of the actions of the respondents of holding the election of the Valsad Municipality under section 41 (1) of the Gujarat Municipality Act, 1963 (hereinafter referred to as “Act” for short) for the post of three councilors which are allegedly said to have fallen vacant.

2. It is averred by the petitioners that proceedings have been initiated against the petitioners under the Gujarat Provisions for Disqualification of Members of Local Authorities for Defection Act, 1986 (hereinafter referred to as “Defection Act” for short). On 25.03.2021, the Designated Authority has disqualified the petitioners, the petitioners have preferred a writ petition before this Court being Special Civil Application No.6793 of 2021. The said matter is pending before this Court.

3. Grievance on the part of the petitioners is that the matter has not yet attained its finality although the Court has heard both the sides and now the same is pending for judgments. Therefore, according to the petitioners, post of the councilors have not fallen vacant and election could not have been declared on these posts without any seats being vacant.

4. The election of Valsad Municipality was held on 17.12.2018 and the term of the committees is of five years from the appointed day of its first meeting, and, thus, the said term of the Valsad Municipality would expire in the month of February, 2023. The total strength of the Councilors is of 44. Petitioners have also given breakup of the councillors belonging to different political parties.

5. A show cause notice was issued by the Commissioner of Municipalities on 29.07.2019 to the petitioners in exercise of the powers conferred upon him under sub-section (1) of section 37 of the Act calling upon the petitioners as to why the petitioners should not be removed as the councilors of the Valsad Municipality in view of the alleged disgraceful conduct of the petitioners in the meeting held on 29.01.2019 of the Valsad Municipality. The petitioners were allegedly raising their voice and were making their representation. It is alleged that they did not maintain decorum, misbehaved, abused their offices and have disrupted the Valsad Municipality.

6. According to them, in their reply to the show cause notice dated 30.08.2019, some of the documents were needed by the petitioners and such requests was reiterated on 17.03.2020 and thereafter.

7. This eventually on 25.03.2021 resulted into the removal of the petitioners from the post of councilors of Valsad Municipality, in exercise of the powers under sub-section (1) of section 37 of the Act.

8. Aggrieved petitioners have preferred Special Civil Application No.6793 of 2021 seeking to challenge their impugned order of removal dated 25.03.2021 where they have also sought the stay of implementation of the said order. The said petition is pending. In the meantime, the State Election Commissioner, Gandhinagar has issued a notification dated 06.09.2021 for holding the byeelection of various municipalities which included Valsad Municipality. Election for four seats have been declared and the date of election is scheduled on 03.10.2021. According to the petitioners, this is nothing but an act to overreach the judicial process. In fact the seats cannot be said to have fallen vacant till the judicial process reaches to its ultimate stage, therefore, the petitioners are before this Court seeking following reliefs:-

(A) Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction and be pleased to hold and declare that the respondents have no power, authority or competence to hold the election of Valsad Municipality from ward no.1,2,5,6 for the post of the councilors which have not fallen vacant.

(B) Pending admission and final disposal of the present petition, be pleased to direct the respondents, their agents