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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.Y. Kogje, J.
Desai Mahendrabhai Ramjibhai - Appellant
Vs.
State Of Gujarat - Respondent
Special Civil Application No. 5286 of 2022
Decided On : 25-04-2022
Motion of No Confidence - Jurisdiction of Regional Commissioner - Gujarat Municipalities Act, 1963, Section 258(1) - The court discussed the exercise of powers under Section 258(1) of the Act and its jurisdiction to examine the challenge of no confidence motion. The court referred to the pronouncements in Geetaben L. Rathwa and Jayendrasinh Bhupatsinh Diama cases and held that the exercise of powers under Section 258 of the Act on the issue of motion of no confidence is without jurisdiction. The impugned order and proceedings were quashed and set aside.
Fact of the Case:
The case involved a challenge to the order passed by the Regional Commissioner of Municipalities, Surat Zone, regarding a motion of no confidence passed by the Aamod Municipality against its President and Vice President.
Finding of the Court:
The court found that the exercise of powers under Section 258(1) of the Act by the Regional Commissioner to examine the challenge of no confidence motion was without jurisdiction. The impugned order and proceedings were quashed and set aside.
Issues: The primary issue was whether the exercise of powers under Section 258(1) of the Act to examine the challenge of no confidence motion was justified and in accordance with the provision.
Ratio Decidendi: The court held that the exercise of powers under Section 258 of the Act on the issue of motion of no confidence was without jurisdiction, citing the pronouncements in Geetaben L. Rathwa and Jayendrasinh Bhupatsinh Diama cases.
Final Decision: The petition was allowed, and the impugned order dated 09.03.2022 as well as proceedings thereof were quashed and set aside.
JUDGMENT :
1. Rule. Ms.Jyoti Bhatt, learned AGP waives service of rule for the respondent-State and Learned advocate Mr.Naman Brahmbhatt waives service of rule for the respondent no.6.
2. This petition under Article 226 of the Constitution of India is filed challenging the order dated 09.03.2022 passed by the Regional Commissioner of Municipalities, Surat Zone in Appeal case No.6 of 2022 (Annexure-A). along with this petition two separate petition are filed by the president and vice-president of the nagarpalika challenging the very resolution of no confidence which the subject matter of this petition, the challenge is under Art.226 of the Constitution of India, these petitions were also heard along with this petition and is disposed by a separate order.
3. By the aforesaid order, in exercise of powers under Section 258(1) of the Gujarat Municipalities Act , 1963 (herein after referred to as the “Act”) had issued show-cause notice fixing the hearing of the appeal on 28.03.2022 and at the same time, had stayed the Resolution No.51(1) & (2) passed in the special general meeting held on 03.03.2022 by Aamod Municipality.
4. The primary contention of the petitioner is that as per the pronouncements of this Court in case of Geetaben L. Rathwa reported in 2005 (9) GHJ 414 and in case of Jayendrasinh Bhupatsinh Diama reported in 2012 (2) GLR 1096 and that against the resolution of on the motion of no confidence, the appeal or the revision cannot be maintained.
5. It is a case where the election of Aamod Municipality consisting of 24 members was held and the result of the election thus, held was declared by the notification dated 02.03.2021. The election of the President and Vice President was held on 17.03.2021 and one Maheshbhai Dhulabhai Patel and Ushaben Sureshbhai Patel came to be elected as President and Vice President, respectively. The motion of no confidence was moved by 12 members against the President and Vice President of Aamod Municipality on 09.02.2022 invoking Section 36(1) of the Act.
6. On such motion, a special general meeting came to be conveyed on 03.03.2022 as per Section 51(2) of the Act for which a notice dated 25.02.2022, as provided under the Act came to be issued. In the special general meeting conveyed on 03.03.2022, all 24 members had remained present and the motion of no confidence came to be passed purportedly by raising a fingers and 17 members purportedly supported the motion of no confidence, and therefore, the motion of no confidence was treated to have been passed with 2/3 majority.
7. It is a case where the motion of no confidence passed by the Aamod Municipality came to be challenged by filing an Appeal Case No.6 of 2022 invoking section 258(1) of the Act before the Regional Commissioner, Surat Zone and the Regional Commissioner passed an order dated 09.03.2022, which is impugned.
8. Learned advocate for the petitioner has argued that the Regional Commissioner has no jurisdiction under Section 258(1) of the Act to take cognizance of the challenge to a motion of no confidence and as there is no jurisdiction, the Regional Commissioner ought not to have issued a notice and passed an order staying the operation of the motion, which was adopted by 2/3 majority on the floor of the municipality.
9. It is argued that any interference by the executive by invoking the power under Section 258 of the Act would run completely against the basics of democratic principles on the basis of which the elected representatives are to discharge their duties in the municipality. It is argued that the interference by the executive in passing the impugned order has a potential of leading to unhealthy and undemocratic practice like horse trading. It is lastly submitted that by relying upon the decision of this Court in case of Geetaben Rathwa and a full bench decision in case of Jayendra Bhupatsinh that the decisions barred the exercises of powers by the executive by invoking the sections.
10. As against this, learned advocate for the r
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