IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 14845 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH sd/ ============================================
============================================= ABDULMINYA NISHAR AHMAD SAIYAD Petitioner(s) Versus DIRECTOR MUNICIPALITIES Respondent(s) ============================================= Appearance:
MR MEHUL S SHAH, ADVOCATE for the Petitioner(s) No. 1 MR SURESH M SHAH, ADVOCATE for the Petitioner(s) No. 1 MS. JIRGA JHAVERI ASSIT. GOVERNMENT PLEADER for the Respondent(s) No. 1 ============================================= CORAM: HONOURABLE MR.JUSTICE M.R. SHAH Date : 03/09/2012 CAV JUDGEMNT
1.0 By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for an appropriate writ, direction and order quashing and setting aside the impugned order at Annexure C passed by the Director of Municipalities, State of Gujarat dated 14.9.2010, by which, the petitioner is removed as Councillor of Mangrol Nagarpalika in exercise of powers under Section 37 of the Gujarat Municipalities Act (hereinafter referred to as the “Act”).
2.0 That at the relevant time the petitioner was Councillor of Mangrol Nagarpalika. That it was found that he obtained the plot for residential use by stating incorrect fact on oath submitting that he does not have any property or house of his own and thereafter he used the said plot for commercial purpose and also done encroachment on the said land. The proceedings were initiated against him under Section 37 of the Act. That the Collector, Junagadh sent a report to the Director of Municipalities, on the basis of which proceedings were initiated under Section 37 of the Act and the Director of Municipalities served the show cause notice upon the petitioner dated 21.1.2010 calling upon petitioner to show cause as to why on the ground of misuse of powers and filing false affidavit stating incorrect facts, he should not be removed as a Councillor. It was also alleged against the petitioner that the petitioner made a false statement that he does not hold any property (though in fact he was holding the property) he obtained the plot / land for residential purpose and thereafter use the same for commercial purpose and even encroached upon some land. It was also alleged that in the affidavit false statement is made that he residing separately from his mother, though in fact he was residing with his mother. It was also alleged after constructing the shopping center on the land which was to be used for the residential purpose and transferred to his mother in law and other persons.
2.1. Thereafter, after giving an opportunity to the petitioner and considering the documentary evidence on record and even considering the defence of the petitioner, by impugned order Director of Municipalities has passed an order to remove the petitioner as Councillor, in exercise of powers under Section 37 of the Act by holding that the charge / allegation against the petitioner that he obtained the land illegally by filing false affidavit and that he has encroached upon the municipal land etc. have been proved and therefore, he was acted in disgraceful conduct.
2.2. Feeling aggrieved and dissatisfied with the impugned order passed by the Director of Municipalities removing the petitioner as a Councillor in exercise of powers under Section 37 of the Act, the petitioner has preferred the present Special Civil Application under Article 226 of the Constitution of India.
3.0 Shri Shah, learned advocate for the petitioner has vehemently submitted that as such on 19.2.2008, the petitioner, at the general election of the Councillors of the Mangrol Nagarpalika has been elected upto 18.2.2013 and therefore, for the alleged misconduct committed during earlier tenure, he may not be removed. It is submitted that therefore, no order of removal of the petitioner from the office of the Councillor of Mangrol Nagarpalika can be passed and also because the charges have reference to the point of time long before his election on dated 19.2.2008. It is submitted that even on the basis of the material on record the authority ought not to have passed an order to remove the petitioner as a Councillor.
3.1. Shri Shah, learned advocate for the petitioner has heavily relied upon the decision of the Division Bench in the case of Chimanbhai R. Patel vs. Anand Municipality and ors reported in 1983(1) GLR 67 as well as in the case of Popatlal Devidan Gandavi vs. Satishkumar Rameshchandra Ahir & Ors reported in 1998(2) GLR 1217 as well as decision in the case Kodarbhai Becharbhai Patel vs. Mohanbhai Motibhai Patel & Anr reported in AIR 1972 Guj 247, in support of his prayer to allow the present Special Civil Application.
4.0 Petition is opposed by Ms. Jhaveri, learned Assistant Government Pleader appearing on behalf of the respondent State. It is submitted that as such in the facts and circumstances of the case and after giving an opportunity to the petitioner when it has been found that the petitioner has acted in disgraceful manner not befitting the Councillor and that he has obtained the land for residential purpose by filing false affidavit and that he misused the power encroachment upon the municipal land, no illegality has been committed by the Director of Municipalities in removing the petitioner in exercise of powers under Section 37 of the Act. It is submitted that even the contention on behalf of the petitioner that for his misconduct committed during earlier term he cannot be removed subsequently, cannot be accepted. It is submitted that if such a contention is accepted, in such case despite the fact that a person is found to have committed the misconduct and has acted in a disgraceful manner, he will never be removed as Councillor and he is to be continued as a Councillor. It is submitted that in given case it may happen that in last days of his tenure / term he may commit the misconduct and within few days the term is over before any action could be taken and thereafter if any action is taken, if the contention on behalf of the petitioner is accepted, in that case, he can never be removed as a Councillor. It is submitted that cannot be intention of the legislature. It is submitted that as such the controversy is squarely covered by the decision of the Full Bench in the case of Mushtaq Ahmed Hasanbhai Mansuri vs. V.C. Trivedi reported in 2003(1) GLH 572. Therefore, it is requested to dismiss the present Special Civil Application.
5.0 Heard the learned advocates for the respective parties and considered the impugned order passed by the Director of Municipalities, State of Gujarat which is a well reasoned order removing the petitioner as a Councillor of Mangrol Nagarpalika in exercise of powers under Section 37 of the Act.
5.1. At the outset, it is required to be noted that petitioner has been removed as a Councillor in exercise of powers under Section 37 of the Act by holding that he is guilty of misconduct in discharge of his duties and disgraceful conduct. It ha been found that he has acted in a disgraceful manner by obtaining land / plot for residential purpose by filing false affidavit and he has misused his power by encroaching upon the municipal land. The said findings given by the authority is on appreciation of evidence which is not required to be interfered with by this Court in exercise of powers under Article 226 of the Constitution of India.
5.2. Now, so far as contention on behalf of the petitioner and reliance placed upon the decision of the Division Bench in the case of Chimanbhai R. Patel (supra) is concerned, as such it is required to be noted that the decision of the Division Bench in the case of Chimanbhai R. Patel is overruled by the Full Bench of this Court in the case of Mushtaq Ahmed Hasanbhai Mansuri (supra). It is held by the Full Bench in the aforesaid decision that the words “ of any disgraceful conduct” occurring in Section 37(1) of the Act have no reference to the words “in discharge of his duties”. It is held that therefore, even if the conduct is disgraceful in discharge of his duties or otherwise which brings shame, dishonour or ignominy to himself or institution, a person holding office in the Municipal Councillor can be removed under Section 37 of the Act. In para 4.4 it is observed as under:
“4.4 The scheme of section 37 of the Act is clear and unambiguous. As observed earlier, subsection (1) thereof empowers the State Government to remove any Councillor or President or the Vice President of a Municipality from the office (a) if he is guilty of misconduct in the discharge of his duties, (b) or if he has been guilty of any disgraceful conduct or (c) if he has become incapable of performing his duties under the Act. A disgraceful conduct is much more grave than a mere misconduct. A disgraceful conduct brings disrepute not only to the Councillor who is guilty of such conduct, but would also cast a stigma upon the institution, namely, the Municipality. Webster gives the word "disgraceful" meaning as synonymous of "infamous", "detestable", "odius", "scandalous", "base", "vile", "shamefull", ignominious". Acts sanctioned by law are not disgraceful. The natural consequence of disgraceful conduct is that it brings the person committing the same into contempt among honourable persons. If the legislative intention had been to confine the power of removal in case of disgraceful conduct committed in the discharge of the duties, an express provision could have been made or the words "in the discharge of his duties" would have followed the second contingency also. Such being not the language employed by the Legislature, we are of the opinion that the words "in the discharge of his duties" do not qualify the words "disgraceful conduct" also. Disgraceful conduct has a reference to his behaviour as a citizen and not necessarily as a Councillor. If a person behaves disgracefully in the public or in the office of Municipal Council, he is liable to be removed from his office of Councillor notwithstanding the fact that the misconduct was not with reference to the discharge of his duties. Thus, the first question which is referred to the Larger Bench is answered by holding that the phrase "or of any disgraceful conduct" occurring in the section cannot be construed to mean that the disgraceful conduct must have been committed in the discharge of duties only and not otherwise. The President, Vice President or Councillor, as the case may be, can be removed from office if he is guilty of any disgraceful conduct which is committed in the discharge of duties or otherwise because the President, Vice President or Councillor of a Municipality, as the case may be, is a public figure holding public post and is supposed to conduct himself in such a manner whether in the discharge of his duties or otherwise, that his conduct does not bring shame or dishonour or ignominy to himself or the institution. The decisions taking contrary view on this point stand overruled.”
5.3. Considering the aforesaid observations of the Full Bench, moment it is found that Councillor has conducted himself in disgraceful manner and / or has been guilty of any disgraceful conduct, he can be removed as a Councillor even if his such disgraceful conduct was in the earlier term. The purpose of Section 37 of the Act is to see that such person who has been guilty of any disgraceful conduct may not be continued as a Councillor. In view of the decision of the Full Bench in the case of Mushtaq Ahmed Hasanbhai Mansuri (supra) the other decision which have been relied upon by the learned advocate for the petitioner would not be of any assistance to the petitioner.
6.0 In view of the above and for the reasons sated above and looking to the misconduct proved against the petitioner of filing false affidavit and on that getting the land for residential purpose and thereafter using the same for commercial purpose and transferring the same and it has been found that the petitioner has encroached upon the municipal land when the petitioner has been removed under Section 37 of the Act, it cannot be said that the Director of Municipalities has committed any error and / or illegality. Under the circumstances, there is no substance in the present Special Civil Application, which deserves to be dismissed and is accordingly dismissed. Notice discharged.
Kaushik sd/ (M.R.SHAH, J.)