IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO.10446 of 2012 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.M.CHHAYA Sd/ =========================================================
===================================================== PORBANDAR MUNICIPALITY THRO PRESIDENT MANJULABEN RAMJIBHAI & 19 Petitioner(s) Versus STATE OF GUJARAT THRO PRINCIPAL SECRETARY & 6 Respondent(s) =====================================================A ppearance:
MR ND NANAVATY, SR. COUNSEL, with MR BM MANGUKIYA, ADVOCATE for the Petitioner(s) No. 1 20 MR PRAKASH JANI, GOVERNMENT PLEADER, with MS ASMITA PATEL, AGP, for the Respondent(s) No. 1 3 MR CB UPADHYAYA, ADVOCATE for the Respondent(s) No.47 ===================================================== CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA Date : 27/12/2012 CAV JUDGEMENT
(1) Heard Mr.N.D.Nanavaty, learned Senior Counsel, with Mr.B.M.Mangukiya, learned advocate for the petitioners, Mr.Prakash Jani, learned Government Pleader, with Ms.Asmita Patel, learned Assistant Government Pleader for respondent Nos.1 to 3, and Mr.C.B.Upadhyaya, learned advocate appearing for private respondent Nos.4 to 7.
(2) By way of this petition under Article 226 of the Constitution of India, the petitioners have prayed for the following reliefs:
“a. Be pleased to admit this petition,
b. Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction to quash and set aside decision of the respondent No.2 dated July 27, 2012 dissolving Porbandar Municipality, and the consequential order directing respondent No.3 to take over the charge of petitioner No.1 Municipality;
c. Pending admission and final disposal of the present petition, be pleased to stay implementation, execution and operation of the impugned order dated July 27, 2012 dissolving Porbandar Municipality and the consequential order directing respondent No.3 to take over the charge of petitioner No.1 Municipality and restrain the respondents, their agents or servants from restraining the petitioners from performing their duties as Councilors and elected office bearers of the Municipality as if no order has been passed;
d. Be pleased to pass such other and further orders as may be deemed fit and proper.”
(3) The facts which can be culled out from the record of the petition are as under:
(4) The petitioners, being the elected members of Porbandar Municipality (for short ‘the Municipality’), were served with show cause notice dated 21.07.2012 as provided under Section 263(1) of the Gujarat Municipalities Act, 1963 (the Act) on 22/23.07.2012 as under the provisions of Section 76 of the Act the Municipality was supposed to sanction its budget before 31st March of every year, however, the Municipality could not do so, in spite attempts were made on 12.03.2012, 26.04.2012 and 05.07.2012. That by the aforesaid notice, in exercise of powers under Section 263 of the Act, the petitioners along with other councillors of the Municipality were called upon to show cause for the alleged misuse as the municipality had failed to pass the budget, and hearing was fixed on 27.07.2012. That the competent authority i.e. respondent No.2, on 27.07.2012 i.e. on the date on which the hearing was fixed, passed an order under Section 263 of the Act whereby dissolving the Municipality. Being aggrieved by the said order, the petitioners prefer the present petition.
(5) Mr.N.D.Nanavaty, learned Senior Counsel for the petitioners, has taken this Court to the factual matrix arising in the present petition. It was submitted that the impugned notice issued by the respondent authority itself is not in accordance with law as the same is not issued to the Municipality. Relying upon the provisions of Article 243U of the Constitution of India it was vehemently submitted that before taking any steps to dissolve an elected Municipality, the authorities are required to give “reasonable opportunity”. It was submitted that the show cause notice was served upon the petitioners on 22/23.07.2012 and that too upon the councillors and even six clear days were not given. It was further pointed out that no opportunity of hearing was as such given to the petitioners as even the applications for adjournment filed by the petitioners before respondent No.2 authority were not even dealt with by the said authority and without giving opportunity of being heard to the petitioners the authority has passed the impugned order. It was submitted that as enshrined under Article 243U of the Constitution of India read with Section 263 of the Act, opportunity of being heard has to be a “reasonable opportunity” and should not be illusory. It was further contended that the impugned order indicates that president, vice president and councillors were called upon to show cause and it was further contended that the impugned order actually records that oral request for adjournment was made, whereas, in reality, two applications for adjournment were made, which were not dealt with by the authority and no order is passed either rejecting or allowing the said applications for adjournment and straightway on the same day, the impugned order has been passed, without giving opportunity of being heard, much less “reasonable opportunity”, as enshrined under Article 243U of the Constitution of India. It was further submitted that no notice as such has been issued to the municipality and, therefore, the manner in which the impugned order is passed indicates that the same is passed without affording reasonable opportunity. Relying upon provisions of Section 51 of the Act it was submitted that as the notice under Section 263 of the Act is also to be given to a municipality, proper time should have been given by the authority to the municipality so that a meeting of councillors could have been called and appropriate decision could have been taken by the municipality to give reply to such show cause notice. It was further submitted that even if it is considered that a special general meeting could have been convened by the municipality 03 (three) clear days notice would be required under the relevant provisions of the Act and even that opportunity has been denied. It was reiterated that as such no opportunity of explanation has been given by the municipality to the petitioners and on the same day the impugned order is passed. It was urged that such an exercise of powers is not bona fide but is in fact arbitrary and hence, the impugned order deserves to be quashed and set aside. Following judgments of Division Bench of this Court were relied upon on behalf of the learned senior advocate for the petitioners:
(i) Mohanlal Nathubhai Vs. R.M. Desai, Development Commissioner, Gujarat, 1968 G.L.R. 991;
(ii) Anjar Municipality & Ors. Vs. J.M. Vyas, 1999 (3) G.L.R. 1892;
(iii) Jyotiben R. Pathak & Ors. Vs. Rafiqsa Chammansa Fakir & Ors., 2000 (3) GLR 2049.
It was submitted that Division Bench of this Court even while examining vires of Section 263 of the Act has clearly provided that a “reasonable opportunity” of being heard should be given to the municipality before its dissolution. It was further submitted that the authority has not only denied right of hearing to the petitioners but has committed an error by recording a finding that an oral request was made, whereas, in reality, two applications were filed by the petitioners for adjournment, however, no orders have been passed upon such applications. It was therefore submitted that the petition deserves to be allowed and the impugned order deserves to be quashed and set aside.
(6) Per contra Mr.P.K.Jani, learned Government Pleader appearing for respondent Nos.1 to 3, has relied upon the affidavitinreply filed by Shri Shivshankar Ganpatram Bhatt, Deputy Collector, Urban Development and Urban Housing Department i.e. authorized officer of respondent No.2. It was submitted that show cause notice dated 21.07.2012 was given to the president, vice president and all members of the municipality. It was submitted that as provided under Section 76 of the Act the municipality owes statutory duty to see that the budget proposals are passed so that it would be competent to spend amount and generate income for the said financial year. It was submitted that it is evident from the record of the petition itself that firstly on 12.03.2012 a meeting was held wherein budget could not be passed and in another meeting, which was held on the same date, in fact the budget proposals came to be rejected by the majority. It was further submitted that again an attempt was made in the meeting held on 26.04.2012, however, by majority, the budget proposals were rejected. It was therefore submitted that these proceedings go to show that the municipality could not pass the budget and thereby has failed to perform its statutory duties which attracts Section 263 of the Act. It was further submitted that because of these undisputed facts a show cause notice came to be issued, as provided under Section 263 of the Act. It was submitted that such show cause notice is served upon all 42 councillors and in response to the same, 23 councillors i.e. majority members have filed affidavits before the authority and have in fact taken a stand that the proposals of the budget could not be passed and majority of the members therefore, submitted that even though earlier three attempts were made the budget could not be passed and at the time of hearing before the authority 23 members i.e. majority of the councillors reiterated that they did not intend to pass the budget but wanted dissolution and, therefore, the authority has passed order of dissolution of the municipality as provided under Section 263 of the Act. Following judgments were relied upon on behalf of the learned Government Pleader:
(i) Pariya Gram Panchayat & Anr. Vs. Development Commissioner and Ors., 2005 (2) G.L.R. 1092;
(ii) Manishbhai Vinodbhai Patel, Sarpanch Vs. State of Gujarat, 2005 (2) GCD 1780 (Guj.);
(iii) Ashok Kumar Sonkar Vs. Union of India, (2007) 4 S.C.C. 54;
(iv) M.C. Mehta Vs. Union of India & Ors., (1999) 6 S.C.C. 237;
(v) Vivek Nand Shethi Vs. Chairman, J & K Bank Ltd., & Ors., (2005) 5 SCC 337;
(vi) Municipal Committee, Hoshiarpur Vs. Punjab State Electricity Board & Ors., (2010) 13 SCC 216.
It was submitted that in the facts of the present case hearing of the councillors, more particularly the petitioners, would be an empty and useless formality and, therefore, it cannot be said that principles of natural justice were required to be followed. It was therefore submitted that in light of the undisputed fact that the budget could not be passed, the impugned order is legal and proper and the authority has not committed any error, much less any error on face of record which requires interference of this Court in its extraordinary jurisdiction under Article 226 and/or 227 of the Constitution of India.
(7) Mr.Nanavaty, learned Senior Counsel for the petitioners, in reply to the contentions raised by the learned Government Pleader submitted that as provided under Article 243U of the Constitution of India read with Section 263 of the Act before dissolution “reasonable opportunity” has to be given to the municipality. It was contended that there is difference between observance of the principles of natural justice and constitutional mandate of providing hearing. It was submitted that therefore, by no stretch of imagination, it can be termed as empty or useless formality as the same would tinker with an anarchy. It was further submitted that chance to defend can never said to be a formality and the constitutional safeguard, which is enshrined under Article 243U of the Constitution of India, cannot be diluted and the respondent authorities cannot be permitted to take shelter of the doctrine of “empty formality”.
(8) As stated hereinabove, as Mr.P.K.Jani, learned Government Pleader, has also relied upon the affidavitinreply filed on behalf of the respondent authorities, it would be appropriate to refer to the said affidavitinreply. It has been stated in Paragraph No.4 thereof that in fact and in reality the petitioners were issued show cause notice dated 21.07.2012 by the respondent authority and by way of issuance of notice the petitioners were given an opportunity to represent their case on 27.07.2012. It was further stated that the said notices were duly served upon the petitioners on 22/23.07.2012 and even though opportunity was given to the petitioners to represent their case, they did not do so on that day and on the contrary prayed for adjournment. It is categorically mentioned in the affidavitinreply that the petitioners had prayed for two weeks’ time by way of an application for adjournment and the respondents have thus contended that the petitioners were not serious in their attempt to represent their case and, therefore, the petitioners are not entitled to grant any equitable relief and the present petition requires to be rejected. It has been further stated that there is no violation of principles of natural justice. The respondents in their affidavit have also reiterated the stand taken by the learned Government Pleader, more particularly as regards requirement of Section 76 of the Act and have narrated what has happened in the meetings held on 12.03.2012, 26.04.2012 and 05.07.2012. It is also stated in the affidavitinreply that in response to the show cause notice a letter dated 26.07.2012, signed by 23 members of the municipality, was submitted praying for dissolving the municipality, which constitutes majority of the municipality. It is further stated that the impugned order is legal and proper. Relying upon the provisions of Section 263(1) of the Act it was contended in the affidavitinreply that the respondent authorities can pass order of dissolving the municipality “after giving the municipality an opportunity to render an explanation”. However, it has been contended that the petitioners appeared through their advocate and prayed for adjournment and did not render any explanation, as they were called for by way of show cause notice and it was therefore contended that reasoned order dated 27.07.2012 was passed, after giving opportunity of hearing to the petitioners as provided under law. It is also stated that the show cause notice dated 21.07.2012 was served upon the petitioners and they had sufficient time to represent their case and have denied the contention raised by the petitioners to the effect that it was mala fide exercise of powers and have also denied that there was the grossest violation of principles of natural justice. The respondents have also denied that the impugned order in the petition is violative of Articles 14 and 19 of the Constitution of India and have thus, supported the impugned order and contended that the petition deserves to be dismissed.
(9) Mr.C.B.Upadhyay, learned advocate appearing for the private respondent Nos.4 to 7, has supported the impugned order and has adopted the arguments made by the learned Government Pleader and submitted that the petition deserves to be dismissed.
(10) Before reverting to the submissions made by the learned counsel appearing for the parties it would be appropriate to note that Article 243U of the Constitution of India provides as under:
“243U. Duration of Municipalities, etc. (1) Every Municipality, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting and no longer :
Provided that a Municipality shall be given a reasonable opportunity of being heard before its dissolution.
(2) No amendment of any law for the time being in force shall have the effect of causing dissolution of a Municipality at any level, which is functioning immediately before such amendment, till the expiration of its duration specified in clause (1).
(3) An election to constitute a Municipality shall be completed,
(a) before the expiry of its duration specified in clause (1);
(b) before the expiration of a period of six months from the date of its dissolution :
Provided that where the remainder of the period for which the dissolved Municipality would have continued is less than six months, it shall not be necessary to hold any election under this clause for constituting the Municipality for such period.
(4) A Municipality constituted upon the dissolution of a Municipality before the expiration of its duration shall continue only for the remainder of the period for which the dissolved Municipality would have continued under clause (1) had it not been so dissolved."
(11) Section 263 of the Act reads as under:
“263. (1) If, in the opinion of the State Government a Municipality is not competent to perform or deliberately makes default in the performance of the duties imposed on it by or under this Act, or otherwise by law or exceeds or abuses, its powers, the State Government may, after giving the municipality an opportunity to render an explanation, by an order published, with the reasons therefor, in the Official Gazette declare the municipality to be incompetent or in default, or to have exceeded or abused its powers, as the case may be and may dissolve such municipality.
(2) When the municipality is so dissolved, the following consequences of dissolution shall ensue :
(a) all councillors of the municipality shall in the case of dissolution as from the date specified in the order of dissolution, vacate their offices as such councillors;
(b) all powers and duties of the municipality shall, during the period of dissolution , be exercised and performed by such officer as the Director from time to time appoints in this behalf;
(3) Constitution of Municipality after dissolution.
(a) An election to constitute a municipality shall be completed before the expiration of a period of six months from the date of its dissolution.
Provided that where the remainder of the period for which the dissolved municipality would have continued is less than six months, it shall not be necessary to hold any election under this clause for constituting the municipality for such period;
(b) A municipality constituted upon the dissolution of municipality before the expiration of its duration shall continue only for the remainder of the period for which the dissolved municipality would have continued had it not been so dissolved."
(1) On perusal of the show cause notice dated 21.07.2012 (at AnnexureI to the petition), it appears that the same was issued in exercise of powers under Section 263 (1) of the Act whereby the municipality was asked to show cause for the alleged misuse as the municipality had failed to pass the budget. In the appendix appended to the show cause notice it is stated that under provisions of Section 67(1) of the Act the municipality is duty bound to pass the budget and as it has failed to pass such budget by 31.03.2012 the same has affected working of the municipality and the municipality has failed to even provide primary and basic necessities. As averred in the petition as well as in the affidavitinreply filed by the respondent authorities, the said notice dated 21.07.2012 came to be served upon the petitioners as well as upon the other councillors on 22/23.07.2012 and hearing was kept on 27.07.2012. It further transpires from the record of the petition, which is also borne out from the original record and proceedings of the show cause notice, which were made available for perusal of the court on earlier occasion, that on 27.07.2012 two applications signed by the learned advocate for the petitioners were filed before the authority. It appears that in the first application it is mentioned by the petitioners’ advocate that the said show cause notice has been served on or around 22.07.2012 and it took 23 days for the councillors to contact each other and thereafter they decided to engage advocate to enable them to give reply to the show cause notice. It appears from the record that another application filed by the learned advocate for the petitioners, who appeared before respondent No.2 authority on 27.07.2012 prayed for an adjournment. It was also mentioned that no time was granted and that the authority has refused to record an order on the application of adjournment.
(2) It further transpires from the impugned order that the authority has not considered the applications for adjournment and on the contrary has observed in the order that an oral request for adjournment was made. It is further recorded that respondent No.2 authority enquired from the learned advocate for the petitioners whether during that time they intend to pass budget or only want to make submission before the authority. However, learned advocate for the petitioners did not give any clarificatory reply. From further perusal of the order it transpires that the authority has noted that except 10 parties no officer i.e. collector or chief officer of the municipality were present and considering the recommendation / opinion of Collector, Porbandar and Chief Officer, Porbandar Municipality the authority has passed the order. It further transpires from the record that the authority has noted that as provided under Section 76(1) of the Act the municipality was required to pass budget for F.Y. 201213 between 10.01.2012 to 15.03.2012 and it has not been done within the time limit. It has further been recorded that out of 42 members, 36 members were present in the meeting held on 12.03.2012 and 17 councillors disapproved and 19 councilors approved the budget and on the basis of the same the authority has come to the conclusion that the municipality has not been able to perform the duties as provided under Section 87 of the Act and has committed default of not passing the budget within time prescribed under the Act and has therefore come to the conclusion that the municipality is incapable to perform its duties and has come to the conclusion that the municipality deserves to be dissolved under Section 263 (1) of the Act. It has no doubt recorded the fact that 23 councillors have submitted notarized statements to the effect that the elected wing has failed to perform its duties and, therefore, has submitted to dissolve the municipality.
(3) Considering the submissions made by the learned advocate for the petitioners therefore it transpires from the impugned order that the petitioners were given an opportunity of being heard. Article 243U of the Constitution of India clearly provides that before dissolving an elected municipality the municipality is required to be given a “reasonable opportunity” of being heard. Similarly even as provided under Section 263 of the Act if the State Government is of the opinion that the municipality is not competent to perform or deliberately makes default in performance of its duties imposed upon it or abuses its powers the State Government may, after giving the municipality an opportunity to render an explanation by an order published with reasons thereafter in the official gazette declared the municipality incompetent or in default or abuses powers, as the case may be and may dissolve such municipality. However, from the impugned order it is clearly borne out that the applications for adjournment were not even dealt with by the authority while passing the order and on the contrary in the order it is observed that the learned advocate for the petitioners made “oral request for adjournment”, which is de hors the record of respondent No.2 itself. It further transpires from the record of the petition that on 12.03.2012 Resolution No.369 has been passed by the municipality and also on the same day i.e. on 12.03.2012, after the said meeting was over, another meeting was held and by the same Resolution No.369 the budget came to be disapproved. It further transpires that thereafter in the subsequent two meetings on 26.04.2012 and 05.07.2012 the budget proposals were disapproved. It is further pertinent to note that in the show cause notice dated 21.07.2012 the notice speaks of abuse of power as well as not competent to perform and the impugned order is passed after noting this factual aspect only.
(4) Division Bench of this Court in the case of Anjar Municipality & Ors. (supra) while examining the vires of Section 263 of the Act after amendment of the constitution, more particularly after the provisions of Part IXA of the Constitution were amended as observed thus in Paragraph No.15:
“15. We are unable to uphold the said argument. Looking to the phraseology used in Art. 243U, it is clear to us that the said provision saves the power of competent Legislature of dissolution of a municipality in accordance with law. It is clear from the language of Article 243U which states that every municipality shall continue for five years from the date appointed for its first meeting "unless sooner dissolved under any law for the time being in force."It was no doubt contended that the expression "unless sooner dissolved under any law for the time being in force" would not apply to a municipality which has come into power after the expiration of one year from the date of commencement of the Constitution (Seventyfourth Amendment) Act, 1992 as mentioned in Article 243ZF. In our considered opinion, however, the language of Article 243U is clear and unambiguous. It applies to all municipalities. Article 243ZF on the other hand, is a transitory provision for continuance of existing laws and municipalities. It, therefore, cannot successfully be contended that the provisions of Art. 243U would not apply to the present case. The legal position, in our view, is that ordinarily a municipality shall continue for five years from the date appointed for its first meeting, unless sooner dissolved "under any law for the time being in force". Reading Art. 243U, it can be said that if a municipality has come into existence in accordance with law, it must be allowed to complete its statutory term of five years, provided it is not subject to dissolution sooner under any law for the time being in force. There is a further safeguard in the nature of Proviso to clause (1) of Article 243U which enacts that before a municipality is dissolved, it shall be afforded a reasonable opportunity of being heard. From the conjoint reading of Art. 243U of the Constitution and Section 263 of the Act, it is amply clear that normally every municipality must be allowed to complete its term of five years. Section 263 of the Act, however, authorises the State Government to take an appropriate action of dissolution on the grounds mentioned therein. Before taking such action, a municipality must be given reasonable opportunity of being heard. A bald assertion by the learned Counsel for the petitioners that there should be no dissolution of municipality notwithstanding misfeasance, nonfeasance, breach of duties imposed by a statute or failure to perform statutory obligations cannot be countenanced by a Court of law in any legal system governed by Rule of Law . Such a view, in our judgment, is neither favoured by the Legislature under Section 263 of the Act nor by Parliament under Art. 243U of the Constitution.”
From the aforesaid observations of Division Bench of this Court therefore it is clear that powers under Section 263 of the Act can be exercised by the Government but the municipality must be given a reasonable opportunity of being heard.
(5) It further transpires that in the instant case notice was given to the president, vice president and the councillors. Even in the affidavitinreply filed by the respondent authorities it is not stated that the notice came to be issued to the municipality. Division Bench of this Court in the case of Jyotiben R. Pathak (supra) has held thus (in Paragraph No.9):
“9. So far as power of the State Government of dissolution of a municipality under Section 263 of the Act is concerned, the provision is held to be intra vires and constitutional by a Division Bench of this Court in Anjar Municipality vs. J.M.Vyas AIR 1999 Guj 298 : (1999 (3) GLR 1892). In that case, constitutional validity of Section 263 was challenged inter alia on the ground that it violated Part IXA of the Constitution of India as inserted by the Constitution (74th Amendment Act), 1993). Negativing the contentions and upholding the validity of Section 263 of the Act, the Division Bench speaking through one of us (C.K.Thakker, Actg. C.J.) observed in paras 15 and 29 thus:
"15. We are unable to uphold the said argument. Looking to the phraseology used in Art. 243U, it is clear to us that the said provision saves the power of competent Legislature of dissolution of a Municipality in accordance with law. It is clear from the language of Art. 243U which states that every Municipality shall continue for five years from the date appointed for its first meeting "unless sooner dissolved under any law for the time being in force". It was no doubt contended that the expression "unless sooner dissolved under any law for the time being in force" would not apply to a Municipality which has come into power after the expiration of one year from the date of commencement of the Constitution (Seventy Fourth Amendment) Act, 1993 as mentioned in Art. 243ZF. In our considered opinion, however, the language of Art. 243U is clear and unambiguous, it applies to all municipalities . Article 243ZF on the other hand is a transitory provision for continuance of existing laws and Municipalities. It, therefore, cannot successfully be contended that the provisions of Art. 243U would not apply to the present case. The legal position, in our view, is that ordinarily a municipality shall continue for five years from the date appointed for its first meeting, unless sooner dissolved "under any law for the time being in force". Reading Art. 243U, it can be said that if a municipality has come into existence in accordance with law, it must be allowed to complete its statutory term of five years, provided it is not subject to dissolution sooner under any law for the time being in force. There is a further safeguard in the nature of Proviso to clause (1) of Art. 243U which enacts that before a municipality is dissolved, it shall be afforded a reasonable opportunity of being heard. From the conjoint reading of Art. 243U of the Constitution and Section 263 of the Act, it is amply clear that normally every municipality must be allowed to complete its term of five years. Section 263 of the Act, however, authorises the State Government to take an appropriate action of dissolution on the grounds mentioned therein. Before taking such action, a municipality must be given a reasonable opportunity of being heard. A bald assertion by the learned counsel for the petitioners that there should be no dissolution of municipality notwithstanding misfeasance, nonfeasances breach of duties imposed by a statute or failure to perform statutory obligations cannot be countenanced by a court of law in any legal system governed by Rule of Law. Such a view, in our judgment, is neither favoured by the Legislature under Section 263 of the Act nor by Parliament under Art. 243U of the Constitution."
"29. For the reasons recorded hereinabove, in our opinion, the provisions of section 263 of the Act cannot be held ultra vires, unconstitutional or violative of Art. 14, 19, 21 or 243U of the Constitution and the said challenge must fail. Since we are not entering into the correctness or otherwise of the allegations of the petitioners, we dismiss the petition by observing that it is open to the petitioners to take appropriate proceedings in accordance with law, if they are aggrieved by issuance of notice. We may state that as we have refused to decide that question,as and when such question is raised before an appropriate forum, it will be decided on its own merits, without being influenced in any manner by the observations made by us hereinabove. The petition is accordingly dismissed. No costs."
(6) Mr.Nanavaty, learned Senior Counsel for the petitioners, has also relied upon judgment of Division Bench in the case of Mohanlal Nathubhai (supra) wherein it is held that the petitioner sarpanch without putting show cause notice before the panchayat in its general meeting cannot file a reply and such a reply would be without any authority of law and was not a reply of the panchayat rendering the explanation of the panchayat in respect of various charges mentioned in the show cause notice.
(7) On the other hand learned Government Pleader has harped upon that even if it is considered that reasonable opportunity was not given hearing would be only a mere empty formality as it is an admitted position that the municipality could not pass the budget and as the majority members i.e. 23 members supported dissolution, hearing to be given to the petitioners, who are 19 in members, would be an empty and useless formality.
(8) The Apex Court in the case of Viveka Nand Shethi (supra) in Paragraph No.2225 has observed thus.:
“22 The principle of natural justice, it is trite, is no unruly horse. When facts are admitted, an enquiry would be an empty formality. Even the principle of estoppel will apply. The principles of natural justice are required to be complied with having regard to the fact situation obtaining therein. It cannot be put in a straitjacket formula. It cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case.
23 The contention raised at the Bar appears to be squarely covered by two decisions of this Court relied upon by Mr. Alex. in Syndicate Bank (supra) Wadhwa, J. speaking for the Division Bench observed :
"14. Two principles emerge from the decisions: (1) principles of natural justice and duty to act in a just, fair and reasonable manner have to be read in the Certified Standing Orders which have statutory force. These can be applied by the Labour Court and the Industrial Tribunal even to relations between the management and workman though based on contractual obligations; and (2) where domestic inquiry was not held or it was vitiated for some reason the Tribunal or court adjudicating an industrial dispute can itself go into the question raised before it on the basis of the evidence and other material on record.
15. In the present case action was taken by the bank under cl. 16 of the Bipartite Settlement. It is not disputed that Dayananda absented himself from work for a period of 90 or more consecutive days. It was thereafter that the bank served a notice on him calling upon him to report for duty within 30 days of the notice stating therein the grounds for the bank to come to the conclusion that Dayananda had no intention of joining duties. Dayananda did not respond to the notice at all. On the expiry of the notice period the bank passed orders that Dayananda had voluntarily retired from the service of the bank."
It was further held :
"18. The bank has followed the requirements of cl. 16 of the Bipartite Settlement. It rightly held that Dayananda has voluntarily retired from the service of the bank. Under these circumstances it was not necessary for the bank to hold any inquiry before passing the order. An inquiry would have been necessary if Dayananda had submitted his explanation which was not acceptable to the bank or contended that he did report for duty but was not allowed to join by the bank. Nothing of the like has happened here. Assuming for a moment that inquiry was necessitated, evidence led before the Tribunal clearly showed that notice was given to Dayananda and it is he who defaulted and offered no explanation of his absence from duty and did not report for duty within 30 days of the notice as required in cl. 16 of the Bipartite Settlement."
24 The aforementioned legal position was reaffirmed by a decision of threeJudge Bench in Punjab & Sind Bank (supra), wherein it has been held :
"Under this rule the employee is given an opportunity to rejoin duty within a stipulated time or explain his position to the satisfaction of the management that he has no intention of not joining duty, and a presumption will be drawn that the employee does not require the job any more and will stand retired from service. Thus, there is no punishment for misconduct but only to notice the realities of the situation resulting from long absence of an employee from work with no satisfactory explanation thereto...".
In the fact situation obtaining therein it was held that there had been sufficient compliance for principle of natural justice.
25 In Syndicate Bank (supra), this Court noticed the decision of threeJudge Bench of this Court in D.K. Yadav V/s. J.M.A. Industries Ltd., 1993 3 SCC 259 whereupon the Industrial Tribunal had placed strong reliance. In D.K. Yadav (supra) admittedly no opportunity was given to the workman and no inquiry was held. In that situation, it was observed :
"8. The cardinal point that has to be borne in mind, in every case, is whether the person concerned should have a reasonable opportunity of presenting his case and the authority should act fairly, justly, reasonably and impartially. It is not so much to act judicially but is to act fairly, namely, the procedure adopted must be just, fair and reasonable in the particular circumstances of the case. In other words application of the principles of natural justice that no man should be condemned unheard intends to prevent the authority from acting arbitrarily affecting the rights of the concerned person."
The Apex Court has examined the biparte settlement between the employees and the employer and on facts has come to the conclusion that there was sufficient compliance of principles of natural justice and as the facts were admitted an inquiry would be an empty formality.
(9) Similarly, in the case of Ashok Kumar Sonkar (supra) the Apex Court (in Paragraph Nos.26 and 28) has observed thus:
“26 This bring us to the question as to whether the principles of natural justice were required to be complied with. There cannot be any doubt whatsoever that the audi alteram partem is one of the basic pillar of natural justice which means no one should be condemned unheard. However, whenever possible the principle of natural justice should be followed. Ordinarily in a case of this nature the same should be complied with. Visitor may in a given situation issue notice to the employee who would be effected by the ultimate order that may be passed. He may not be given an oral hearing, but may be allowed to make a representation in writing.
28 A court of law does not insist on compliance of useless formality. It will not issue any such direction where the result would remain the same, in view of the fact situation prevailing or in terms of the legal consequences. Furthermore in this case, the selection of the appellant was illegal. He was not qualified on the cut off date. Being ineligible to be considered for appointment, it would have been a futile exercise to give him an opportunity of being heard.”
Even in the said case the Apex Court was concerned with the applicability of the principles of natural justice and prejudice, if any, caused to the employees while determining the eligibility condition in a recruitment process.
(10) Similarly the Apex Court in the case of Municipal Committee, Hoshiarpur (supra) (in Paragraph Nos.3136) has observed thus:
“31 The principles of natural justice cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case. Thus, they cannot be put in a straitjacket formula.
"13. ... Natural justice is not an unruly horse, no lurking landmine, nor a judicial cureall. If fairness is shown by the decisionmaker to the man proceeded against, the form, features and the fundamentals of such essential procedural propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of."
32 The two rules of natural justice, namely, nemo judex in causa sua, and audi alteram partem now have a definite meaning and connotation in law and their contents and implications are well understood and firmly established; they are nonetheless non statutory. The court has to determine whether the observance of the principles of natural justice was necessary for a just decision in the facts of the particular case. (Vide: The Chairman, Board of Mining Examination and Chief Inspector of Mines & Anr. V/s. Ramjee, AIR 1977 SC 965; Union of India & Anr. V/s. Tulsiram Patel, AIR 1985 SC 1416; and Managing Director, ECIL, Hyderabad V/s. B. Karunakar, AIR 1994 SC 1074).
33 There may be cases where on admitted and undisputed facts, only one conclusion is possible. In such an eventuality, the application of the principles of natural justice would be a futile exercise and an empty formality. (Vide: State of U.P. V/s. Om Prakash Gupta, AIR 1970 SC 679; S.L. Kapoor V/s. Jagmohan & Ors., AIR 1981 SC 136; and U.P. Junior Doctors' Action Committee V/s. Dr. B. Sheetal Nandwani & Ors., AIR 1991 SC 909).
34 However, there may be cases where the non observance of natural justice is itself prejudice to a person and proof of prejudice is not required at all. In A.R. Antulay V/s. R.S. Nayak & Anr., (1988) 2 SCC 602, this Court held as under:
"55. ... No prejudice need be proved for enforcing the fundamental rights. Violation of a fundamental right itself renders the impugned action void. So also the violation of the principles of natural justice renders the act a nullity."
35 Similarly, in S.L. Kapoor (supra), this Court held:
"The nonobservance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced."
36 In view of the above, in case there is a non compliance of a statutory requirement of law or the principles of natural justice have been violated under some circumstances, noncompliance of the aforesaid may itself be prejudicial to a party and in such an eventuality, it is not required that a party has to satisfy the court that his cause has been prejudiced for noncompliance of the statutory requirement or principles of natural justice.”
(11) Even this Court in the case of Pariya Gram Panchayat & Anr. (supra) (in Paragraph No.6) has observed thus:
“6. Moreover, the resolution dated 30th March, 2003 which was stayed by Taluka Development Officer was not challenged by the petitioner and therefore, the said order has achieved finality. Subsequently, from the affidavitinreply, it is clear that as per the requirement under the Act the State Government has formed opinion that the panchayat is incompetent to perform the duties imposed on it or functions entrusted to it under the provisions of the Act, and therefore, under the provisions of Sec. 253 of the Act the said Resolution was passed. Further, pursuant to the notice issued to the petitioner and after hearing the husband of the petitioner, the State Government had passed the order on 3rd February, 2002.”
That on facts it has been found that the husband of the petitioner of the said petition was heard before the powers were exercised by the competent authority under Section 253 of the Gujarat Panchayats Act, 1993.
(12) Mr.Jani, learned Government Pleader, has also relied upon the judgment in the case of Manishbhai Vinodbhai Patel, Sarpanch (supra), however, the same would not apply to the fact situation of the present case.
(13) At thus juncture it would be advantageous to refer to the judgment of the Apex Court in the case of Ravi Yashwant Bhoir Vs. District Collector, Raigad & Ors., (2012) 4 S.C.C. 407 (wherein in Paragraph No.7) it has been observed thus:
“7. It is further submitted that at the time of hearing on 21.3.2009, the complainant wanted to rely upon some new grounds, and, therefore, the appellant raised the objection. The Hon'ble Chief Minister directed the Secretary to fix up a date of hearing, however, no date of hearing was fixed and impugned order dated 21.3.2009 had been passed without affording any opportunity of hearing to the appellant. Therefore, the said order was passed in utter disregard of the principles of natural justice and cannot be sustained in the eyes of law.”
That on the facts of the said case the Apex Court while considering the removal of an elected officebearer has in Paragraph Nos.2137 observed thus:
“21 The municipalities have been conferred Constitutional status by amending the Constitution vide 74th Amendment Act, 1992 w.e.f. 1.6.1993. The municipalities have also been conferred various powers under Article 243B of the Constitution.
22 Amendment in the Constitution by adding Parts IX and IX A confers upon the local self Government a complete autonomy on the basic democratic unit unshackled from official control. Thus, exercise of any power having effect of destroying the Constitutional Institution besides being outrageous is dangerous to the democratic setup of this country. Therefore, an elected official cannot be permitted to be removed unceremoniously without following the procedure prescribed by law, in violation of the provisions of Article 21 of the Constitution, by the State by adopting a casual approach and resorting to manipulations to achieve ulterior purpose. The Court being the custodian of law cannot tolerate any attempt to thwart the Institution.
23 The democratic setup of the country has always been recognized as a basic feature of the Constitution, like other features e.g. Supremacy of the Constitution, Rule of law, Principle of separation of powers, Power of judicial review under Articles 32, 226 and 227 of the Constitution etc. (Vide: His Holiness Keshwananda Bharti Sripadagalvaru & Ors. V/s. State of Kerala & Anr., AIR 1973 SC 1461; Minerva Mills Ltd. & Ors. V/s. Union of India & Ors., AIR 1980 SC 1789; Union of India V/s. Association for Democratic Reforms & Anr., AIR 2002 SC 2112; Special Reference No. 1 of 2002 (Gujarat Assembly Election Matter), AIR 2003 SC 87; and Kuldip Nayar V/s. Union of India & Ors., AIR 2006 SC 3127).
24 It is not permissible to destroy any of the basic features of the Constitution even by any form of amendment, and therefore, it is beyond imagination that it can be eroded by the executive on its whims without any reason. The Constitution accords full faith and credit to the act done by the executive in exercise of its statutory powers, but they have a primary responsibility to serve the nation and enlighten the citizens to further strengthen a democratic State. Public administration is responsible for the effective implication of the rule of law and constitutional commands which effectuate fairly the objective standard set for adjudicating good administrative decisions. However, wherever the executive fails, the Courts come forward to strike down an order passed by them passionately and to remove arbitrariness and unreasonableness, for the reason, that the State by its illegal action becomes liable for forfeiting the full faith and credit trusted with it. (Vide: Scheduled Castes and Scheduled Tribes officers Welfare Council V/s. State of U.P. & Ors., AIR 1997 SC 1451; and State of Punjab & Ors. V/s. G.S. Gill & Anr., AIR 1997 SC 2324).
25 “Basic” means the basis of a thing on which it stands, and on the failure of which it falls. In democracy all citizens have equal political rights. Democracy means actual, active and effective exercise of power by the people in this regard. It means political participation of the people in running the administration of the Government. It conveys the State of affair in which each citizen is assured of the right of equal participation in the polity. (See: R.C. Poudyal V/s. Union of India & Ors., AIR 1993 SC 1804).
26 In Peoples Union for Civil Liberties (PUCL) & Anr. V/s. Union of India & Anr., AIR 2003 SC 2363, this Court held as under: "94. The trite saying that "democracy is for the people, of the people and by the people" has to be remembered for ever. In a democratic republic, it is the will of the people that is paramount and becomes the basis of the authority of the Government. The will is expressed in periodic elections based on universal adult suffrage held by means of secret ballot. It is through the ballot that the voter expresses his choice or preference for a candidate "Voting is formal expression of will or opinion by the person entitled to exercise the right on the subject or issue", as observed by the Court in Lily Thomas V/s. Speaker, Lok Sabha, (1993) 4 SCC 234 quoting from Black's Law Dictionary. The citizens of the country are enabled to take part in the Government through their chosen representatives. In a parliamentary democracy like ours, the Government of the day is responsible to the people through their elected representatives. The elected representative acts or is supposed to act as a live link between the people and the Government. The people's representatives fill the role of lawmakers and custodians of the Government. People look to them for ventilation and redressal of their grievances."
28 In State of Punjab V/s. Baldev Singh etc. etc., AIR 1999 SC 2378, this Court considered the issue of removal of an elected office bearer and held that where the statutory provision has a very serious repercussions, it implicitly makes it imperative and obligatory on the part of the authority to have strict adherence to the statutory provisions. All the safeguards and protections provided under the statute have to be kept in mind while exercising such a power. The Court considering its earlier judgments in Mohinder Kumar V/s. State, Panaji, Goa (1998) 8 SCC 655; and Ali Mustafa Abdul Rehman Moosa V/s. State of Kerala, AIR 1995 SC 244, held as under: "28. It must be borne in mind that severer the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed."
29 The Constitution Bench of this Court in G. Sadanandan V/s. State of Kerala & Anr., AIR 1966 SC 1925, held that if all the safeguards provided under the Statute are not observed, an order having serious consequences is passed without proper application of mind, having a casual approach to the matter, the same can be characterised as having been passed mala fide, and thus, is liable to be quashed.
30 There can also be no quarrel with the settled legal proposition that removal of a duly elected Member on the basis of proved misconduct is a quasijudicial proceeding in nature. (Vide: Indian National Congress (I) V/s. Institute of Social Welfare & Ors., AIR 2002 SC 2158). This view stands further fortified by the Constitution Bench judgments of this Court in Bachhitar Singh V/s. State of Punjab & Anr., AIR 1963 SC 395 and Union of India V/s. H.C. Goel, AIR 1964 SC 364. Therefore, the principles of natural justice are required to be given full play and strict compliance should be ensured, even in the absence of any provision providing for the same. Principles of natural justice require a fair opportunity of defence to such an elected office bearer.
31 Undoubtedly, any elected official in local self government has to be put on a higher pedestal as against a government servant. If a temporary government employee cannot be removed on the ground of misconduct without holding a full fledged inquiry, it is difficult to imagine how an elected office bearer can be removed without holding a full fledged inquiry.
32 In service jurisprudence, minor punishment is permissible to be imposed while holding the inquiry as per the procedure prescribed for it but for removal, termination or reduction in rank, a full fledged inquiry is required otherwise it will be violative of the provisions of Article 311 of the Constitution of India. The case is to be understood in an entirely different context as compared to the government employees, for the reason, that for the removal of the elected officials, a more stringent procedure and standard of proof is required.
33 This Court examined the provisions of the Punjab Municipal Act, 1911, providing for the procedure of removal of the President of the Municipal Council on similar grounds in Tarlochan Dev Sharma V/s. State of Punjab & Ors., AIR 2001 SC 2524 and observed that removal of an elected office bearer is a serious matter. The elected office bearer must not be removed unless a clearcut case is made out, for the reason that holding and enjoying an office, discharging related duties is a valuable statutory right of not only the elected member but also of his constituency or electoral college. His removal may curtail the term of the office bearer and also cast stigma upon him. Therefore, the procedure prescribed under a statute for removal must be strictly adhered to and unless a clear case is made out, there can be no justification for his removal. While taking the decision, the authority should not be guided by any other extraneous consideration or should not come under any political pressure.
34 In a democratic institution, like ours, the incumbent is entitled to hold the office for the term for which he has been elected unless his election is set aside by a prescribed procedure known to law or he is removed by the procedure established under law. The proceedings for removal must satisfy the requirement of natural justice and the decision must show that the authority has applied its mind to the allegations made and the explanation furnished by the elected office bearer sought to be removed.
35 The elected official is accountable to its electorate because he is being elected by a large number of voters. His removal has serious repercussions as he is removed from the post and declared disqualified to contest the elections for a further stipulated period, but it also takes away the right of the people of his constituency to be represented by him. Undoubtedly, the right to hold such a post is statutory and no person can claim any absolute or vested right to the post, but he cannot be removed without strictly adhering to the provisions provided by the legislature for his removal (Vide: Jyoti Basu & Ors. V/s. Debi Ghosal & Ors., AIR 1982 SC 983; Mohan Lal Tripathi V/s. District Magistrate, Rai Barelly & Ors., AIR 1993 SC 2042; and Ram Beti etc. etc. V/s. District Panchayat Rajadhikari & Ors., AIR 1998 SC 1222).
36 In view of the above, the law on the issue stands crystallized to the effect that an elected member can be removed in exceptional circumstances giving strict adherence to the statutory provisions and holding the enquiry, meeting the requirement of principles of natural justice and giving an incumbent an opportunity to defend himself, for the reason that removal of an elected person casts stigma upon him and takes away his valuable statutory right. Not only the elected office bearer but his constituency/electoral college is also deprived of representation by the person of his choice.
37 A duly elected person is entitled to hold office for the term for which he has been elected and he can be removed only on a proved misconduct or any other procedure established under law like `No Confidence Motion' etc. The elected official is accountable to its electorate as he has been elected by a large number of voters and it would have serious repercussions when he is removed from the office and further declared disqualified to contest the election for a further stipulated period.”
(14) In the facts of this case, as noted hereinabove, the petitioners are the elected councillors of the local authority viz. the municipality and their term as prescribed is for five years. It is no doubt true that even before expiry of such term the State Government has a power to issue notice under Section 263 of the Act, however, the fact remains that before dissolving the municipality, as per Section 263 of the Act, what is enshrined under Article 243U of the Constitution of India has to be followed in its true letter and spirit and the municipality or the councillors is to be given a reasonable opportunity to be heard. In the instant case, notices have been given to the president, vice president and councillors, however, as noted hereinabove, the petitioners did file two applications for adjournment, however, the authority has not recorded in the order and on the contrary it was mentioned in the order that an oral request was made. Thus, in opinion of this Court, the same is not only nonapplication of mind but the same amounts to denial of opportunity, much less denial of reasonable opportunity, which is sine qua non for exercise of powers under Section 263 of the Act and on this ground alone respondent No.2 authority has committed error apparent on the face of record, which warrants interference of this Court in its extraordinary jurisdiction under Article 226 and/or 227 of the Constitution of India. As per the ratio laid down by the Apex Court in the case of Ravi Yashwant Bhoir (supra) in a democratic setup the councillors represented the mass and by dissolution of the municipality the same is substituted by an administrator as provided under the Act and that can be done only after giving reasonable opportunity of being heard as enshrined under Article 243U of the Constitution of India. Even taking into consideration the ratio laid down by Division Bench of this Court in Anjar Municipality & Ors. (supra) denial of hearing would render any action under Section 263 of the Act invalid.
(15) During course of hearing before this Court the learned Government Pleader has pointed out that after the impugned order was passed the administrator has been appointed and the court is informed that even the annual budget is passed by the administrator.
(16) Thus, this Court finds that there is non compliance of the principles of natural justice and reasonable opportunity, which is provided under Article 243U of the Constitution of India and even an opportunity of being heard to the petitioners as provided under Section 263 of the Act is not granted by the respondent authority before passing the impugned order and it cannot be termed as an empty formality as tried to be canvassed by the learned Government Pleader as well as Mr.C.B.Upadhyaya, learned advocate appearing for respondent Nos.4 to 7, more so when the powers are sought to be exercised by the State Government when the duly elected body is sought to be dissolved before expiry of its term.
(17) For the foregoing, the petition deserves to be accepted. Impugned order dated 27.07.2012 passed by respondent No.2 is hereby quashed and set aside and the matter is remanded to respondent No.2 authority for its rehearing who, after giving notice as provided under Section 263 of the Act and as per the ratio laid down by Division Bench of this Court in the case of Anjar Municipality & Ors. ((supra)), shall pass a reasoned order afresh, after considering submissions made by the noticees.
(18) It is however made clear that as the impugned order is hereby quashed and set aside only on the sole ground of nonobservance of the principles of natural justice and not giving reasonable opportunity of being heard to the petitioners, the same may not be considered that the State Government has no power to issue notice under Section 263 of the Act and the matter is only remanded for its rehearing on merits and the authority shall decide the same strictly in accordance with law, after considering the contentions that may be raised by all parties. It is further clarified that this Court has not expressed any opinion on merits of the issues involved in the notice. It is further provided that such exercise shall be undertaken by the respondent authority as expeditiously as possible, within 04 (four) weeks of the receipt of this judgment and till then no policy decision shall be taken by the petitioners.
(19) The petition thus, succeeds. Rule is made absolute to the aforesaid extent. There shall be no order as to costs.
Bhavesh* *** Sd/ [R.M.CHHAYA, J ]