IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 4141 of 2012 For Approval and Signature:
HON'BLE SMT. JUSTICE ABHILASHA KUMARI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? No 2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of the judgment ? No 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? No 5 Whether it is to be circulated to the civil judge ? No ========================================================= RAJESHBHAI MANGUBHAI PATEL - Petitioner(s) Versus STATE OF GUJARAT & 3 - Respondent(s) ========================================================= Appearance :
MR BM MANGUKIYA ,MS BELA A PRAJAPATI for Petitioner MR PRANAV S DAVE, ASSTT.GOVERNMENT PLEADER for Respondent(s) : 1 - 3.
None for Respondent(s) : 4 =========================================================
CORAM : HON'BLE SMT. JUSTICE ABHILASHA KUMARI
Date : 07/05/2012 ORAL JUDGMENT
1. The challenge in this petition under Article 226 of the Constitution of India is to the show cause notice dated 21.03.2012, issued by the Director of Municipalities (respondent No.2), asking the petitioner to show cause why he should not be removed as a Councillor/ President of the Valsad Municipality.
2. Briefly stated, the facts, as stated in the petition, are that the petitioner successfully contested the election to the Valsad Municipality held on 17.02.2008, and was elected as a Councillor of the said Municipality. The petitioner thereafter contested the election for the post of President and was elected as such, in the meeting held on 06.09.2010. Since then, the petitioner is functioning as President of Valsad Municipality. According to the petitioner, he was elected as an Independent Councillor and was not affiliated to any particular political party. However, later, the petitioner joined the Bhartiya Janta Party. Proceedings for his disqualification were commenced, which are not the subjectmatter of the present petition. It is the case of the petitioner that with a view to removing him from the office of President, for reasons best known to the authorities, the impugned show cause notice dated 21.03.2012, has been issued to him. According to the petitioner, some of the allegations contained in the show cause notice have no force, whereas some of them pertain to incidents that took place in the previous term of the petitioner, i.e. 20032008. It is asserted by the petitioner that respondent No.2 has no power or competence to issue a show cause notice for alleged misconduct of the previous term. Hence, the petitioner has approached this Court and prayed for issuance of a Writ of Prohibition restraining respondent No.2 from proceeding with the adjudication of the impugned show cause notice.
3. Mr.B.M.Mangukiya, learned advocate for the petitioner, has made the following submissions:
(a) That the first allegation in the impugned show cause notice is in relation to the residential premises of one Rameshbhai Babarbhai Patel, whose name has been mutated by posting hereditary entry, as the mother of Rameshbhai Babarbhai Patel was holing the land since 1976. It is submitted that this allegation does not have any force as the Municipality is not required to decide the title of the property and is only required to maintain records regarding occupancy of the premises for recovery of taxes from the occupiers thereof. It is submitted that this allegation in the show cause notice that there is a hereditary mutation in the records of the Municipality is devoid of merits.
(b) That the second allegation pertains to repairing carried out by Rameshbhai Babarbhai Patel upon a Kutchha hut that has now been converted into a RCC structure in the year 1979.
(c) That the third allegation is in relation to the auction that took place in the year 1986 in which Rameshbhai Babarbhai Patel purchased a flat in the second floor near the vegetable market.
(d) That the fourth allegation against the petitioner is also devoid of merit. The said allegation is that the petitioner resides in premises that are owned by his father, on land that is stated to be Government land, and the allegation is that the petitioner has encroached upon the same.
(e) That the fifth and sixth allegations made in the show cause notice relate to the previous term of the petitioner. As regards these two allegations, it is contended that by issuing the show cause notice, there is an erroneous exercise of power on behalf of the Director of Municipalities, as once the term expires, no action can be taken against against any alleged misconduct of the previous term after expiry of one year, as per the provisions of Section 37A of the Gujarat Municipalities Act, 1963 (“the Act” for short).
(f) That the seventh allegation is a statement on facts that is not correct.
4. It is submitted that respondent No.2 has no jurisdiction to issue the show cause notice on the allegations contained in the show cause notice, therefore, the said show cause notice be quashed and set aside.
5. In support of the above submissions, the learned advocate for the petitioner has placed reliance upon the following judgments:
(i) Chhanalal A.Patel v. The State of Gujarat 1960(1) GLR 260
(ii) Mustakbhai Pirmohmad Shaikh v. Shri C.M.Leua, or his successorinoffice, Director of Municipalities and Ors. 1995(2) GLH 305
6. Mr.Pranav S.Dave, learned Assistant Government Pleader, appearing on supply of an advance copy of the petition, has opposed the issuance of Notice in the petition, by submitting that the petition is premature, being directed against a show cause notice. It is contended that whatever has been submitted by the learned advocate for the petitioner before this Court can be submitted before respondent No.2. At this stage, the petitioner has not been heard and it can transpire that the show cause notice may be dropped after hearing the petitioner. It is further submitted by the learned Assistant Government Pleader that if the show cause notice has been issued with regard to certain allegations pertaining to the previous term of the petitioner, the contentions raised before this Court can easily be raised before respondent No.2 during the course of hearing. However, some of the allegations are of a factual nature and would require adjudication by the Competent Authority. As regards the aspect of jurisdiction, the learned Assistant Government Pleader has submitted that the Director of Municipalities has the jurisdiction to issue the show cause notice. The petitioner may contend that jurisdiction has not been properly exercised. However, that does not mean that the Director of Municipality lacks jurisdiction to issue the show cause notice, therefore, a Writ of Prohibition, as prayed for by the petitioner, may not be issued in his favour.
7. In rejoinder, the learned advocate for the petitioner has reiterated the submissions advanced by him earlier.
8. Having heard the learned counsel for the respective parties, and upon perusal of the material on record, it would be fruitful to advert to certain relevant judicial pronouncements before dealing with the respective contentions.
9. In Special Director And Another v. Mohd. Ghulam Ghouse And Another – (2004)3 SCC 440, the Supreme Court has held that:
“5. This Court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the showcause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. Unless the High Court is satisfied that the showcause notice was totally non est in the eye of law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine, and the writ petitioner should invariably be directed to respond to the showcause notice and take all stands highlighted in the writ petition. Whether the showcause notice was founded on any legal premises, is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the court. Further, when the court passes an interim order it should be careful to see that the statutory functionaries specially and specifically constituted for the purpose are not denuded of powers and authority to initially decide the matter and ensure that ultimate relief which may or may not be finally granted in the writ petition is accorded to the writ petitioner even at the threshold by the interim protection granted.”
10. In Union of India And Another v. Kunisetty Satyanarayana – (2006)12 SCC 28, the Supreme Court has laid down the following principles of law:
“14. The reason why ordinarily a writ petition should not be entertained against a mere showcause notice or chargesheet is that at that stage the writ petition may be held to be premature. A mere chargesheet or showcause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the showcause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ petition lies when some right of any party is infringed. A mere showcause notice or chargesheet does not infringe the right of anyone. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.
15. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a showcause notice or chargesheet.
16. No doubt, in some very rare and exceptional cases the High Court can quash a chargesheet or showcause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter.”
11. Thus, it can be concluded in light of the above judicial pronouncements that ordinarily, a Writ Petition against a show cause notice should not be entertained as, at that stage, the petition may be premature. A show cause notice does not give rise to any cause of action as no adverse order affecting the rights of the parties has been passed. On the contrary, the party is called upon to reply to the show cause notice. It is quite possible that after considering the reply or after holding an inquiry, as the case may be, the concerned authority may even drop the proceedings or withdraw the show cause notice. The party to whom the show cause notice is issued is not adversely affected and, therefore, cannot be said to have any grievance, as no adverse order imposing punishment has yet been passed.
12. A situation can, however, arise where the High Court may entertain a petition against a show cause notice in spite of the availability of an alternative remedy. The extraordinary circumstances or contingencies, the existence of which would not operate as a bar to entertaining a petition against a show cause notice without exhausting the alternative remedy, have been enumerated by the Supreme Court in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai And Others – (1998)8 SCC 1. The relevant extracts of the said judgment are reproduced hereinbelow:
“14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for “any other purpose”.
15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of caselaw on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field.
... ... ...
20. Much water has since flown beneath the bridge, but there has been no corrosive effect on these decisions which, though old, continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a Writ Petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation.
21. That being so, the High Court was not justified in dismissing the writ petition at the initial stage without examining the contention that the showcause notice issued to the appellant was wholly without jurisdiction and that the Registrar, in the circumstances of the case, was not justified in acting as the "Tribunal".
13. As has been held by the Supreme Court in the abovequoted judgment, existence of an alternative remedy would not operate as a bar where the Writ Petition has been filed for enforcement of any of the fundamental rights, where there has been a violation of the principles of natural justice, where the order or proceedings are wholly without jurisdiction, or where the vires of an Act are challenged.
14. It has been submitted by the learned advocate for the petitioner that this Court ought to entertain the petition against the impugned show cause notice, as the said show cause notice is without jurisdiction. According to the learned advocate for the petitioner, the show cause notice enumerates at least two allegations that pertain to the previous term of the petitioner with regard to which no action can be taken against him. Reliance has been placed on Section 37A of the Act, in support of this submission. It has been contended that as the show cause notice has been issued for alleged acts that took place during the previous term of the petitioner as Councillor, respondent No.2 had no jurisdiction to issue the show cause notice.
15. Section 37A of the Act reads as below:
37A. Resignation not to affect subsequent disqualification of a councillor: Notwithstanding that a councillor has resigned his office under section 35, if it appears to the State Government that the councillor during the period he held office as a councillor has been guilty of misconduct in the discharge of his duties or of any disgraceful conduct, the State Government may disqualify him from becoming a councillor or a member of any other local authority for a period of five years from the date of its order:
Provided that no action against the councillor so resigned shall be taken under this section after the expiry of one year from the date of his resignation and without giving him a reasonable opportunity of being heard.
This provision of law pertains to resignation of a Councillor under Section 35 and provides a safeguard that no action shall be taken against a Councillor who has resigned under this Section after the expiry of one year from the date of his resignation, without giving him a reasonable opportunity of being heard. It is not the case of the petitioner that he has resigned in the previous term so as to make the provisions of Section 37A applicable to him.
16. The learned advocate for the petitioner has not been able to make good his submission that the Director of Municipalities does not have the jurisdiction to issue the show cause notice, in the first place. There are several other allegations in the show cause notice that pertain to the present term of office of the petitioner. Those allegations would require adjudication on facts and even recording of statements, if necessary. This can only be done by respondent No.2, who is the Competent Authority. The petitioner can raise all contentions, legal and factual, before respondent No.2, as an opportunity of hearing has been provided to him. The petitioner can bring to the notice of respondent No.2, the legal position which, according to him, would take out from the purview of adjudication, the alleged misconduct of the previous term. The learned advocate for the petitioner is unable to point out from the provisions of the Act that any authority, other than the Director of Municipalities, has the jurisdiction to issue the show cause notice. There is no force in the submission of the learned advocate for the petitioner that the Director of Municipalities lacks jurisdiction to issue the show cause notice, so as to persuade this Court to entertain the petition, directed against show cause notice. As no adverse order has been passed against the petitioner at this stage, the petition is premature. It cannot be said that by merely issuing the show cause notice, any legal or fundamental rights of the petitioner have been violated.
17. The learned advocate for the petitioner has laid great emphasis on the prayer for issuance of a Writ of Prohibition. It would be fruitful to advert to relevant judicial pronouncements regarding the circumstances in which a Writ of Prohibition may be issued.
18. In Thirumala Tirupati Devasthanams and another v. Thallappaka Anantha Charyulu and others – AIR 2003 SC 3290, the Supreme Court has held as below:
“14. On the basis of the authorities it is clear that the Supreme Court and the High Courts have power to issue writs, including a writ of prohibition. A writ of prohibition is normally issued only when the inferior Court or Tribunal (a) proceeds to act without or in excess of jurisdiction, (b) proceeds to act in violation of rules of natural justice, (c) proceeds to act under law which is itself ultra vires or unconstitutional, or (d) proceeds to act in contravention of fundamental rights. The principles, which govern exercise of such power, must be strictly observed. A writ of prohibition must be issued only in rarest of rare cases. Judicial disciplines of the highest order has to be exercised whilst issuing such writs. It must be remembered that the writ jurisdiction is original jurisdiction distinct from appellate jurisdiction. An appeal cannot be allowed to be disguised in the form of a writ. In other words, this power cannot be allowed to be used "as a cloak of an appeal in disguise". Lax use of such a power would impair the dignity and integrity of the subordinate Court and could also lead to chaotic consequences. It would undermine the confidence of the subordinate Court. It was not even argued that there was total lack of jurisdiction in the civil Court. It could not be denied that the civil Court, before which the suit was pending, had powers to decide on the maintainability of the suit and to decide on questions of its jurisdiction. The civil Court had jurisdiction to decide whether the suit was barred by Section 14 of the said Act or on principles of res judicata/estoppel. Thus unless there was some very cogent or strong reason the High Court should not have prevented the Court of competent jurisdiction from deciding these questions. In other words the High Court should not usurp the jurisdiction of the civil Court to decide these questions. In the impugned Judgment no reason, much less a cogent or strong reason, has been given as to why the civil Court could not be allowed to decide these questions. The impugned Judgment does not state that the civil Court had either proceeded to act without or in excess of jurisdiction or that it had acted in violation of rules of natural justice or that it had proceeded to act under law which was ultra vires or unconstitutional or proceeded to act in contravention of fundamental rights. The impugned Judgment does not indicate as to why the High Court did not consider it expedient to allow the civil Court to decide on questions of maintainability of the suit or its own jurisdiction. The impugned judgment does not indicate why the civil Court be not allowed to decide whether the suit was barred by virtue of Section 14 of the said Act or on principles of res judicata/estoppel. To be remembered that no fundamental right is being violated when a Court of competent jurisdiction is deciding, rightly or wrongly, matters before it.”
19. In Chhanalal A.Patel v. The State of Gujarat (supra), which has been relied upon by the learned advocate for the petitioner, a Division Bench of this Court has held as below:
When there is absence of jurisdiction apparent on the face of the proceedings, the Court should in the exercise of its discretion grant relief by issuance of the writ unless there is some very strong case made out for withholding of the same. The Court is bound to act with discretion and when it appears that there has been usurpation of jurisdiction, it is that discretion itself that requires that the Court should act and not refuse to act in the matter. The issuance of the writ though not “of right” or “of course” would almost be as “a matter of course”.
20. From the above judicial pronouncements, it can be deduced that a Writ of Prohibition can be issued only in the rarest of rare cases, where there is a total lack of jurisdiction, on the face of the proceedings. In cases where there is usurpation of jurisdiction, the Court would normally not refuse to exercise discretion. In the present case, the learned advocate for the petitioner has failed to show how the Director of Municipalities lacks inherent jurisdiction to issue the show cause notice under the Scheme of the Act. This judgment relied upon by the learned advocate for the petitioner would, therefore, not be helpful on the facts of the present case.
21. The learned advocate for the petitioner has also relied upon Mustakbhai Pirmohmad Shaikh v. Shri C.M.Leua, or his successorinoffice, Director of Municipalities and Ors. (supra). However, upon going through the judgment, it does not appear to be relevant to the facts of the case. Even otherwise, in that case, the appellant had filed a reply to the show cause notice whereas, in the present case, the petitioner has approached this Court even before that stage.
22. It is not the case of the petitioner that an authority other than the Director of Municipalities, has the jurisdiction to issue the show cause notice, or that the Director of Municipalities has usurped the jurisdiction of another authority. It may be the case of the petitioner that respondent No.2 has exercised jurisdiction erroneously, by including two incidents pertaining to the previous term of the petitioner in the show cause notice. Purported erroneous exercise of jurisdiction and lack of inherent jurisdiction to exercise the power are altogether different. The petitioner is at liberty to file a reply to the show cause notice and raise all available contentions before the Director of Municipalities. It may even transpire that after considering the reply of the petitioner some, or all, of the allegations may be dropped. At this stage, the petition, which is directed against a show cause notice is premature as no adverse order has been passed against the petitioner and no cause of action has arisen so far.
23. In Vavdi (Road) Seva Sahakari Mandli Ltd. & Anr. v. District Registrar & Anr. 2010(3) GLR 1929, this Court was faced with almost similar facts. The petitioner of that petition had challenged a show cause notice and had prayed for a Writ of Prohibition. By placing reliance upon Union of India And Another v. Kunisetty Satyanarayana (supra) and Thirumala Tirupati Devasthanams and another v. Thallappaka Anantha Charyulu and others (supra), this Court rejected the petition.
24. For the aforestated reasons and in light of the judicial pronouncements referred to hereinabove, the petition is rejected.
25. It is clarified that no observation made in this order be taken to be an expression of opinion upon the merits of the case. It is open to the petitioner to appear before the Director of Municipalities in response to the show cause notice and file his reply. In the event that the petitioner appears before respondent No.2, the said respondent shall adjudicate upon the show cause notice on merits and in accordance with law, without being influenced by the factum of filing of the petition.
(Smt. Abhilasha Kumari, J.)
(sunil)