Gujarat High Court
Jilanimiya Kasammiya Saiyed vs State Of Gujarat on 27 January, 2021
Bench: Bhargav D. Karia
C/SCA/16503/2020 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16503 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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JILANIMIYA KASAMMIYA SAIYED
Versus
STATE OF GUJARAT
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Appearance:
MR SATYAM Y CHHAYA(3242) for the Petitioner(s) No. 1,2
MR ISHAN JOSHI, AGP (1) for the Respondent(s) No. 1,2
HARSHESH R KAKKAD(7813) for the Respondent(s) No. 3
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CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 27/01/2021
ORAL JUDGMENT
1. Heard learned advocate Mr. Satyam Chhaya for the
petitioners, learned Assistant Government Pleader Mr. Ishan
Joshi for respondent Nos. 1 and 2 and learned advocate
C/SCA/16503/2020 JUDGMENT
Mr. Harshesh Kakkad for respondent No.3 through video
conference.
2. RULE returnable forthwith. Learned AGP Mr. Joshi waives
service of notice of rule on behalf of respondent Nos. 1 and 2
and learned advocate Mr. Kakkad waives service of notice of
rule on behalf of respondent No.3.
3. Having regard to the controversy involved in this petition
which is in a very narrow compass, with the consent of the
learned advocates for the respective parties, the matter is taken
up for hearing.
4. By this petition under Article 227 of the Constitution of India,
the petitioners have prayed for the following reliefs:
"(A) Your Lordships may be pleased to admit and allow this
petition.
(B) Your Lordships may be pleased to issue appropriate
writ, order or direction and thereby, quash and set aside the
impugned order dated 28.10.2020 passed by respondent No.2
herein at Annexure-K to the petition.
(C) Your Lordships may be pleased to issue a writ of
mandamus and/or appropriate writ, order or direction in the
nature of mandamus holding that the impugned order dated
28.10.2020 at Annexure K shall not operate as a
disqualification against the petitioners for contesting fresh
election as a Councilor in view of Section 11(1)(a)(ii) of the
Act of 1963.
C/SCA/16503/2020 JUDGMENT
(D) Pending admission and final hearing of this petition,
Your Lordships be pleased to stay the operation, execution
and implementation of the impugned order dated 28.10.2020
passed by the Respondent No.2 herein which is at Annexure
K to the petition.
(E) Such other and further relief or relieves as may be deem
fit, just and proper, in the facts and circumstances of the
case."
5. Brief facts of the case are as under:
5.1 The petitioners are elected councilors of Viramgam
Municipality since 2015.
5.2 On 02.12.2012, the Election Officer, Viramgam and
Deputy Collector issued certificate in favour of the petitioners
and the petitioners were declared elected as members of the
Municipality for Ward No.4 of Viramgam Municipality from
the political party Indian National Congress.
5.3 On 25.05.2018, the petitioners had visited the office of
the President of the Municipality to ventilate the grievance
along with other citizens to agitate and protest for drainage
and water problem. On 25.05.2018, a criminal complaint
being CR No.32 of 2018 was registered before the Viramgam
Town Police Station for offences punishable under Sections
394 and 395 of the Indian Penal Code read with Section 3 of
the Damage to Public Properties Act,1984 against the
petitioner. The charges under Sections 394 and 395 were
dropped and the charge-sheet was filed by the police authority
C/SCA/16503/2020 JUDGMENT
under Sections 143,147,149 and 186 of the IPC as well as
Section 3 of the Damage to Public Properties Act,1984. It is
the case of the petitioner that the criminal case being Criminal
Case No.1 of 2019 is pending adjudication before the
concerned Magisterial Court. Even after the incident and after
getting the regular bail, the petitioners have continued to
perform their duty as Councilor.
5.4 It is the case of the petitioner that after more than one
and half years from the incident, the proceedings under
Section 70 of the Gujarat Municipalities Act, 1963 (for short
"the Act of 1963") are initiated against the petitioners herein.
The above-referred proceedings are pending for its
adjudication before the concerned competent authority.
5.4 It is the case of the petitioner that on 11.02.2020, the
respondent No.2 - Commissioner had issued show cause
notice under Section 37 of the Act of 1963, for removal of the
petitioners as councilors. After receiving the notice, the
petitioners learnt that one Councilor - Shri I.J.Vegada, who
was elected as BJP candidate had filed the complaint on
11.06.2018 and on the same day, the Chief Officer of the
Municipality had forwarded the proposal to respondent No.3
herein as well as the Regional Commissioner, Municipalities,
Ahmedabad Zone.
C/SCA/16503/2020 JUDGMENT
5.5 The petitioners filed a detailed reply to the show cause
notice. Respondent no.2 Commissioner passed the impugned
order dated 28.10.2020 removing the petitioners from their
office as Councilors. The petitioners have therefore, preferred
this petition.
6. Learned advocate Mr. Chhaya appearing for the petitioners
submitted that on perusal of the impugned order dated
28.10.2020 passed under section 37 of the Act, 1963, it
appears that the Commissioner-respondent No.2 has not given
any reason much less any cogent reason to arrive at such
findings. It was submitted by Mr. Chhaya that respondent
No.2-Commissioner, after referring to the details of show-
cause notice, reproduced the submissions made on behalf of
the petitioners and thereafter, recorded the conclusion contrary
to the procedure prescribed under section 37 of the Act, 1963.
7. On the other hand, learned advocate Mr. Kakkad appearing for
respondent No.3 submitted that he has tendered affidavit-in-
reply which may be taken on record. Registry to place
affidavit-in-reply filed on behalf of respondent No.3 on record.
It was submitted by learned advocate Mr. Kakkad that the
materials placed on record support the findings arrived at by
respondent No.2-Commissioner.
8. Learned advocate Mr.Kakkad pointed out that the petitioners
had taken lead of the mob which caused damage in the office
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of the Municipality and therefore, the petitioners have been
rightly removed as councilors by the impugned order passed
by respondent No.2.
9. Learned AGP Mr. Joshi submitted that respondent No.2 after
taking into consideration the materials on record as well as
after providing opportunity of hearing to the petitioners has
arrived at the findings and therefore, no interference is
required to be made in the impugned order while exercising
extraordinary jurisdiction under Article 227 of the
Constitution.
10. Having regard to the submissions made by learned advocates
for the respective parties and having gone through the
materials on record and, more particularly, on perusal of the
impugned order dated 28.10.2020 passed by respondent No.2,
it is apparent that respondent No.2 has not given any reason to
arrive at a conclusion on the basis of the material available
before him. While arriving at the conclusion that the
petitioners are required to be removed under section 37 of the
Act, 1963, respondent No.2 has rejected the submissions made
by the petitioners on four counts viz. (i) that though the
proceedings under section 70 is pending, the petitioners can be
removed under section 37; (ii) similarly, the pending criminal
proceedings has nothing to do with the proceedings under
section 37; (iii) the Commissioner arrived at conclusion that
the submissions of the petitioners that the petitioners have
C/SCA/16503/2020 JUDGMENT
been discriminated cannot be accepted because the petitioners
took lead of the mob which caused damages in the office of
the Municipality. However, there is no material referred to in
the impugned order to arrive at such conclusion; (iv) the
Commissioner has rejected the submissions of the petitioners
that proceedings under section 70 have been wrongly and
illegally initiated on the ground that the petitioners have not
been discharged as innocent under the proceedings initiated
under section 70. From the above findings arrived at by
respondent No.2-Commissioner, it cannot be said that
respondent No.2- Commissioner has passed the impugned
order keeping in mind the provisions of section 37 of the
Act,1963 which reads as under:
"37. Removal from office.
(1) The State Government may remove from office-
(a) any councillor of a municipality, [on its own motion or on
receipt of] a recommendation of the municipality in that
behalf supported by a majority of the total number of the then
councillors of the municipality,
or
(b) any president or vice-president of a municipality, If, after
giving the councillor, president or, as the case may be, vice-
president an opportunity of being heard and giving due notice
in that behalf to the municipality and after making such
inquiry as it deems necessary, the State Government is of the
opinion that the councillor, president or, as the case may be,
vice-president has been guilty of misconduct in the discharge
of his duties or of any disgraceful conduct or has become
incapable of performing his duties under this Act.
C/SCA/16503/2020 JUDGMENT
(2) A president or vice-president removed under sub-section
(1) shall not be eligible for re-election as a president or vice-
president during the remainder of the term of the
municipality."
11. On perusal of the aforesaid provision of section 37, it is clear
that the member of a Nagar Palika can be removed by the State
Government after giving an opportunity and after undertaking
inquiry as it may deem necessary. Meaning thereby, it is
incumbent upon respondent No.2 to refer to such inquiry if
made or material available on record to arrive at conclusion
that the petitioners are required to be removed from the
membership while exercising powers under section 37 of the
Act, 1963. Unfortunately, respondent No.2 has failed to
consider the provisions of section 37 by not referring any
material available on record to arrive at conclusion to remove
the petitioners as members of the Municipality under section
37 of the Act,1963 but on the contrary, the only finding
recorded is to reject the submissions made by the petitioners
for not invoking section 37. In such circumstances, the
impugned order is liable to be quashed and set aside as the
same is passed contrary to the provisions of section 37 without
referring to any material on record to arrive at a conclusion
that the petitioners are required to be removed as members of
the Municipality while exercising powers under section 37 of
the Act, 1963.
C/SCA/16503/2020 JUDGMENT
12. In view of the above, the impugned order dated 28.10.2020
passed by respondent no.2 is hereby quashed and set aside.
The matter is remanded back to respondent No.2 to pass a
fresh de novo order after giving opportunity of hearing to the
petitioners in accordance with law by passing a detailed
reasoned order taking into consideration the material on record
to arrive at a conclusion as to whether the petitioners are
required to be removed as members of the Municipality or
not? It is made clear that this Court has not gone into merits of
the matter and respondent No.2 is directed to pass fresh de
novo order in accordance with law without being influenced
by any observations made in this order. Such exercise shall be
completed within twelve weeks from the date of receipt of this
order. Rule is made absolute to the aforesaid extent. No order
as to costs.
Registry is directed to provide a copy of writ of this order to
learned advocate for the petitioners through email so as to
enable him to serve the same upon the respondents through
Email/ Registered PostAD.
Direct service is permitted.
(BHARGAV D. KARIA, J)
JYOTI V. JANI
