Gaurang Bhalchandra Pandya vs Commissioner Of Municipalities ...
2021 Latest Caselaw 6403 Guj

     C/SCA/7445/2021                                      IA ORDER DATED: 21/06/2021



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
             In R/SPECIAL CIVIL APPLICATION NO. 7445 of 2021
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GAURANG BHALCHANDRA PANDYA Versus CITY SURVEY SUPERINTENDENT, DAHOD, LAND RECORDS ========================================================== Appearance:

for the PETITIONER(s) No. MR. KIRTAN H MISTRY for the PETITIONER(s) No. MR BHARAT VYAS AGP for the RESPONDENT(s) No. MR JAYRAJ CHAUHAN for the RESPONDENT(s) No. ========================================================== CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN

Date : 21/06/2021

IA ORDER

1. By this application, the applicant - petitioner (hereinafter referred to as the "petitioner") has prayed for quashing and setting aside the order passed by the respondent No.5 dated 14.06.2021 as well as the agenda notice dated 14.06.2021. The petitioner has also prayed for staying the execution and implementation of the order dated 14.06.2021 whereby, fresh election for the post of Vice- President, Devgadh Bariya Nagarpalika has been scheduled to be held on 23.06.2021.

2. Mr.C.B. Upadhyaya, learned advocate for the petitioner has submitted that the order dated 30.04.2021 passed by the Commissioner, Municipality Administration, Gujarat State, is completely against the evidence available on record. The edifice, on which the order has been passed is the allegation against the petitioner that the petitioner has encroached upon the Government land and has put up the construction on it despite being a member of the Nagarpalika. It is submitted that the said findings are erroneous and against the record which was available with the authority concerned.

C/SCA/7445/2021 IA ORDER DATED: 21/06/2021

2.1. While inviting the attention of this Court to the Village Form No.6, it is submitted that the petitioner has purchased the land bearing Survey No.104/paiki/2 vide registered sale deed and Entry No.3013 has been mutated in the revenue records on 07.04.2018. Further, while inviting attention of this Court to the assessment notice of 2017-2018, it is submitted that the said notice clearly records that there is a construction of shops, hotel and restaurant and therefore, the construction over the land bearing Survey No.104/paiki/2 was already there in existence in the year 2017-2018 when the petitioner was not even elected as a Councilor. It is submitted that apropos the communication dated 09.06.2019 by the Deputy Collector and Prant Officer, the City Survey Superintendent, vide communication dated 06.08.2019, has opined that there is inconsistency in the documents prepared by the office of the D.I.L.R. viz. the documents maintained by the City Survey office. It is has been further opined that the construction is existing on Survey No.104/paiki on the private land and which is not objectionable.

2.2. It is submitted that similarly, the City Survey Superintendent, vide communication dated 23.09.2019 addressed to the Deputy Collector, Prant, Devgadh Baria, while reiterating, has stated that the measurement carried out by the Maintenance Surveyor and the office of the City Survey Superintendent on 27.08.2018 does not appear to be correct and the same deserves to be set aside. It is also opined that he himself having carried out measurement on the basis of the original record, found that the construction is on Survey No.104/paiki, which is of the private ownership. It is submitted that it might be possible that portion of one shop has been constructed over the Government Land, for which, separate proceedings have been initiated and are pending before this Court. It is submitted that even otherwise, assuming that there is any illegal construction, the same was prior to 2018 i.e. before the petitioner was elected as a

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Councilor and not of the period subsequent to 2018.

2.3. It is submitted that in the show-cause notice dated 11.01.2021, it is stated that the illegal construction has been carried out by the petitioner over the City Survey No.2058, Revenue Survey No.61/2. In fact, the opinions rendered by the City Survey Superintendent clearly reflect that the sale deed was executed in favour of the petitioner. Similarly, the assessment sheet issued by the Devgadh Nagarpalika, clearly suggest that the construction is over the land bearing Survey No.104/paiki and not on the Government land bearing Survey 61/2. Therefore, the edifice on which, the proceedings have been initiated against the petitioner are illegal and without jurisdiction.

2.4. It is further submitted that when the issue was only as to whether there is an encroachment over the Government land or not and the petitioner having submitted the sale deed executed in his favour, there was no cause available to the authorities to have insisted for the N.A. permission as well as the plans sanctioned by the concerned authority. It is also submitted that the contention raised before the authority that the construction is of a period prior to the year 2018, is not believed only on the ground that the petitioner has failed to submit any document to substantiate his say.

2.5. It is submitted that this Court, vide order dated 12.05.2021, issued notice and notice as to interim relief and made it returnable on 07.06.2021. On 07.06.2021, a request was made by the State Government for an adjournment. It is submitted that at the request of the learned A.G.P., the matter was adjourned to 23.06.2021. On one hand, the request is made for an adjournment and on the other hand, the respondent authority has an audacity to issue notice

C/SCA/7445/2021 IA ORDER DATED: 21/06/2021

dated 14.06.2021 declaring the fresh elections for the post of Vice- President, Devgadh Baria Nagarpalika, scheduled to be held on 23.06.2021. It is submitted that if the authorities proceed to hold the election, the petition filed by the petitioner would be rendered infructuous.

2.6. Mr.Upadhyaya, learned advocate for the petitioner, in support of his submissions, placed reliance on the judgment of this Court in the case of Virbalaben Girishbhai Trivedi vs. State of Gujarat reported in 2010(2) GLR 1245. It is submitted that in the said case, the appellant was removed under Section 37 of the Gujarat Municipalities Act, 1963 (hereinafter referred to as the "Act") on the ground that the appellant had signed the circular Resolution dated 12.04.2006 for awarding contract to M/s. Dayal Builders for laying down drainage lines in Padra town. The action was taken against the appellant therein on the ground that no provision in the Act empowers the general body of the Municipalities to take any decision by passing the Resolution and such decision can only be taken at the general meeting. It is submitted that this Court, while interfering with the interim order passed by the learned Single Judge, has observed in para 6 that on close reading of the provisions of Sections 37 and 70 of the Act, it appears that a mere irregularity or even an illegality in the discharge of duties or causing loss to the Municipality does not by itself empower the State Government or its delegate to remove a Councilor or President from the elected office. It has been further observed that there must be a finding supported by evidence to show that the concerned Councilor or the President/Vice-President of the Municipality has been guilty of misconduct in discharge his duties or of disgraceful conduct or is incapable of performing his duties under the Act.

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2.7. It is submitted that so far as the present case is concerned, the alleged illegal construction, if any, was undertaken, was prior in point of time i.e. when the petitioner was not even a Councilor. It is submitted that therefore, provisions of Section 37 of the Act, would not be attracted in the case of the petitioner. It is urged that prima facie case and balance of convenience are in favour of the petitioner and if the order under challenge is not stayed, the petitioner will suffer irreparable loss. Therefore, till the main petition is heard, let the order dated 30.04.2021 passed by the Commissioner Municipality Administration and the order dated 14.06.2021 be stayed.

3. Mr.Bharat Vyas, learned A.G.P. requests for time on the ground that today also, he is not having papers. The request is made for 23.06.2021, when the main matter is scheduled to be listed for hearing. In view of the development which has taken place in the interregnum, sufficient time has been accorded to the respondent and hence, the request for adjournment is not acceded to.

4. Heard Mr.C.B. Upadhyaya, learned advocate for the petitioner and Mr.Bharat Vyas, learned A.G.P. for the respondent - State.

5. This Court is of the opinion that the petitioner has made out a prima facie case for staying the execution, implementation and operation of the order dated 30.04.2021 and order dated 14.06.2021 for the reasons discussed herienbelow.

6. The show-cause notice dated 11.01.2021 was issued to the petitioner and one another, stating that the petitioner has misused the power by encroaching upon the Government land being City Survey No.2058, Revenue Survey No.61/2 and further carrying out the construction of 64 shops. It has also been stated that the

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petitioner by producing the false documents, got the assessment done for the shops and thereby, has misused his powers.

7. From the record, it emerges that vide registered sale deed dated 21.11.2017, the petitioner has purchased the land bearing Survey No.104/paiki/2 admeasuring 1782 sq.mtrs. From the assessment sheet for the year 2017-2018 issued under the provisions of Sections 105 and 107 of the Act, it prima facie appears that the construction was already existing over the land in question, namely, the shops, hotel, restaurant and entertainment, whereas the petitioner was elected as a Councilor in the year 2018.

8. Further, there are two communications from the office of the City Survey Superintendent dated 06.08.2019 and 23.09.2019. In the communication dated 06.08.2019, the concerned officer has recorded to the effect that the measurement has been undertaken by the Maintenance Surveyor and the office of the District Inspector Land Record and the report has been prepared wherein, the construction is stated to be over the Survey No.104/paiki, which is of the private ownership. The another opinion has been given by the City Survey Superintendent dated 23.09.2019 reiterating the fact that the construction is over the land bearing Survey No.104/paiki, which is of the private ownership. It also records that the measurement, which has been undertaken on 27.08.2018 by the Maintenance Surveyor, is not in conformity with the rules and the same deserves to be set aside. Therefore, the offices of the City Survey Superintendent have opined that the construction is over the land bearing Survey No.104/paiki/2.

9. Moreover, when the show-cause notice was issued for the purpose of encroachment over the Government land, the Commissioner, Municipality, only on the basis of the fact that the

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petitioner has not produced the order of N.A. permission as well as the plans, did not accept the say of the petitioner and proceeded to pass the order under Section 37(1) of the Act, removing the petitioner as a Councilor.

10. This Court, in the case of Virbalaben Girishbhai Trivedi (supra), in para-6, has observed and held that on close reading of the provisions of Sections 37 and 70 of the Act, it appears that a mere irregularity or even an illegality in the discharge of duties or causing loss to the Municipality does not by itself empower the State Government or its delegate to remove a Councilor or President from the elected office. Therefore, assuming, without expressing opinion, that the conduct of the petitioner is an illegal in discharge of his duty, the same would not permit the authorities to invoke the provisions of Section 37 of the Act. Para 6 of the said order of this Court reads as under:-

"6. On close reading of the provisions of Sections 37 and 70, it appears that a mere irregularity or even an illegality in the discharge of duties or causing loss to the Municipality does not by itself empower the State Government or its delegate to remove a councillor or President from the elected office. There must be a finding supported by evidence to show that the concerned councillor or the President / Vice President of the Municipality has been guilty of misconduct in discharge of his duties or of disgraceful conduct or is incapable of performing his duties under the Act. It must be remembered that the President/Vice President or a Councillor of a Municipality holds an elected office and the order of removal of such elected representative cannot be lightly passed without giving a finding supported by evidence to show that one or the other conditions stipulated in Section 37(1) is satisfied."

11. Also, the submission of the learned advocate for the petitioner deserves to accepted inasmuch as, as is discernible from the record, prima facie, the construction was prior to the year 2018 whereas, the petitioner has been elected as a Councilor thereafter. The issue

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as to whether any action could have been initiated for the act which has taken place when the petitioner was not even elected as a Councilor, would require to be gone into in length. Therefore, the petitioner has been able to make out a prima facie case for the purpose of interim protection. If the interim protection is not accorded to, the petition would be rendered infructuous inasmuch as, the District Municipal Election Officer has issued notice dated 14.06.2021 wherein, the election for the post of Vice-President has been scheduled to be held on 23.06.2021 and once the election takes place, nothing would be left to the petitioner to agitate.

12. In view of the aforesaid discussion, the present civil application is allowed in terms of paras 8(C) and (D) till the next date of hearing. Direct service is permitted.

13. List the present civil application along with the main petition being Special Civil Application No.7445 of 2021 on 23.06.2021.

(SANGEETA K. VISHEN,J) Hitesh