IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 15489 of 2023 With R/SPECIAL CIVIL APPLICATION NO. 15522 of 2023 ==========================================================

MANILAL BHAGWANDAS PATEL Versus COMMISSIONER, MUNICIPALITY ADMINISTRATION ==========================================================

Appearance in Special Civil Application no.15489 of 2023:

MR PRAKASH JANI, SENIOR ADVOCATE WITH MR. ARCHIT P JANI(7304)

for the Petitioner(s) No. 1 for the Respondent(s) No. 1,2 Appearance in Special Civil Application no.15522 of 2023:

MR NIRAV C THAKKAR for the Petitioner(s) No. 1, 2 for the Respondent(s) No. 1,2 ========================================================== CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN Date : 05/09/2023

ORAL ORDER

Special Civil Application no.15489 of 2023 Mr Prakash Jani, learned Senior Advocate with Mr Archit P, Jani, learned advocate for the petitioner submitted that the petitioner, is aggrieved by the notice dated 01.09.2023 issued under the provisions of Section 37 of the Gujarat Municipalities Act, 1963 (hereinafter referred to as the ‘Act of 1963’) by the Commissioner, Municipality Administration, Gujarat State, Gandhinagar for alleged misconduct.

2. It is submitted that in past, the proceedings under Section 258 of the Act of 1963 were initiated which, led to the filing of the writ petition being Special Civil Application no.10667 of 2023 and this Court, was pleased to issue notice and the hearing before the Regional Commissioner, Municipalities, was directed to be deferred.

It is submitted that on 31.08.2023, the election of the President and the Vice-President have been declared, which are scheduled to take place on 13.09.2023. Only with a view to ousting the petitioner from contesting the election, that the impugned notice has been issued, requiring the petitioner to remain present on 06.09.2023, i.e. tomorrow. It is submitted that one of the resolutions referred to in the notice, has been passed in the previous term, i.e. on 29.07.2019 wherein, the petitioner presided over the meeting. In the said resolution, all what has been done, is power to take further steps, were assigned to the Standing Committee. Petitioner, is not even party to rest of the three resolutions dated 29.08.2019, 22.08.2019 and 03.12.2019.

3. It is further submitted that considering the nature of language contained in Section 37 of the Act of 1963, notice can be issued with respect to the misconduct, in discharge of the duty, meaning thereby, that it has to be in presentie and not an act in past. It is submitted that the misconduct alleged, is of the previous term inasmuch as, the term has come to an end on 12.12.2020. It is thereafter, that on 28.02.2021, elections were held and the term had commenced with effect from 01.03.2022 and the duration whereof, is upto 28.02.2026. It is submitted that it is not the case of the respondent that the alleged misconduct, is during the period from 01.03.2021 and thereafter.

4. Reliance is placed on the judgment in the case of Ajitsinh R. Jadeja vs. State of Gujarat reported in 2009 (3) GLR 1866 wherein this Court, has held and observed that a conjoint reading of the provisions of Section 37 of the Act of 1963 indicates that the default has to be in relation to the post held during the tenure of an elected body. In other words, a person can be held guilty of misconduct in the discharge of his duties, which duties are performed in contravention of the obligations cast in law during the period the person holds the office and the same has to be co-extensive with the term of elected body. It is therefore, urged that the issue, stands answered by this Court in the said judgment.

5. It is submitted that the notice, is vague and evasive. All what it indicates is that the resolutions passed are not in conformity with the law; however, it fails to point out as to how the resolutions are not. It is submitted that the resolutions which are referred to, except one, rest