The judgment establishes that misconduct by an elected member of a municipality, especially during exceptional circumstances, can justify their removal from office.

JUDGMENT :

1. The matter was extensively heard on 20.2.2023 and it was agreed among learned advocates for the parties that the matter was being heard finally, and therefore, on 20.2.2023, the following order was passed:

“Heard learned advocate Mr.Nirav Thakkar for the petitioner, learned Government Pleader Ms.Manisha Lavkumar Shah assisted by learned Assistant Government Pleader Ms.Shruti Pathak and learned advocate Mr.Deepak Sanchela for the Respondent No.2 – Nagar Palika. Arguments are concluded. List for orders on 27.02.2023.”

2. In view of the aforesaid order, issue Rule. Ms.Shruti Pathak, learned Assistant Government Pleader waives service of rule for respondent No.2 and learned advocate Mr.Deepak Sanchela waives service of rule for respondent No.2.

3. By way of the petition, the petitioner has prayed for quashing and setting aside the order dated 28.12.2021 passed by the Commissioner of Municipality (Administration) whereby the petitioner was removed as Member of the Unjha Municipality by Commissioner, Municipal Administration in exercise of powers under Section 37(1) of the Gujarat Municipalities Act, 1963 (for short, `the Act, 1963’).

4. The facts of the case in nutshell are that the petitioner is an elected councillor of Unjha Nagarpalika for which elections took place in February, 2021 and results were declared on 1.3.2021. In Unjha Nagarpalika, 36 candidates were elected and the petitioner is one of them.

4.1 On 26.4.2021, as per the case of the petitioner, despite there being no official directions of the State Government or the Central Government, one Mr.Jasminbhai Patel, Chief Sanitary Inspector of Unjha Nagarpalika, was moving in local market and forcing shopkeepers to shut down their shops. As per the petitioner he was asking the shop owners to hand over keys to him and he was also collecting fine of Rs.1,000/- from them. According to the petitioner, the aforesaid action was not backed by any order in writing by the Chief Officer or any other competent authority nor was it supported by any of the instructions from the State Government or Central Government. Hence, the petitioner resisted the aforesaid action upon complaints received by him and initially he asked Mr.Patel, Chief Sanitary Inspector to stop acting in such an illegal manner politely, but as the said request according to the petitioner fell on the deaf ears of the Chief Sanitary Inspector, the petitioner raised his voice and at that time some one captured those moments as video clip and the same was circulated. According to the petitioner, the video clip does not depict the entire incident and does not give the correct picture of what had happened on that day. When the aforesaid video went viral, it created a one sided impression due to the fact that it was not a video clip depicting the entire incident.

4.2 As the petitioner is a councillor he made a complaint about the highhanded action of Mr.Patel, Chief Sanitary Inspector on the same day and filed a complaint against Mr.Patel.

4.3 It was the case of the petitioner that on the basis of the aforesaid video clip, respondent No.2 recommended actions under the provisions of Section 37(1) of the Act, 1963 to respondent No.1 vide communication dated 3.5.2021. Thereafter vide show cause notice dated 20.9.2021 the petitioner was asked as to why steps under Section 37(1) of the Act, 1963 may not be initiated against him. Upon the receipt of show cause notice, the petitioner vide communication dated 23.9.2021 and 27.9.2021 asked for certain information to enable him to submit his reply to the notice. It is the case of the petitioner that though the hearing was scheduled on 7.10.2021, the documents asked for by the petitioner were partially supplied to him after 5 p.m. on 6.10.2021. On 7.10.2021 the petitioner was not given any further time to reply to the notice. However, the matter could not be heard on 7.10.2021. Ultimately, the petitioner was heard subsequently and vide order dated 28.12.2021 by exercising pow