Dhanera Municipality Through In ... vs Regional Commissioner ...
2021 Latest Caselaw 4893 Guj

         C/SCA/5860/2021                                  ORDER




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CIVIL APPLICATION NO. 5860 of 2021

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    DHANERA MUNICIPALITY THROUGH IN CHARGE PRESIDENT
              SHANKARBHAI SAVABHAI PATEL
                          Versus
 REGIONAL COMMISSIONER MUNICIPALITIES, GANDHINAGAR ZONE
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Appearance:
MR DIPEN DESAI(2481) for the Petitioner(s) No. 1,2
for the Respondent(s) No. 1,3,4,5
MR. ANAND V THAKKAR(7091) for the Respondent(s) No. 2
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 CORAM: HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                           Date : 31/03/2021

                            ORAL ORDER

1. By way of this petition, the petitioners have prayed for following reliefs:

"(A) This Hon'ble Court be pleased to issue a writ of certiorari or writ in the nature of certiorari or any other appropriate writ, order or directions, quashing and setting aside the impugned order dated 26.03.2021 passed by the respondent No.1 - Regional Commissioner of Municipalities in Appeal No.03 of 2021, annexed at Annexure ­A to the petition.

(B) This Hon'ble Court be pleased to issue appropriate writ, order or direction holding and declaring that the petitioner No.2 is the nominated member of the petition No.1 - Municipality in the APMC, Dhanera and who is entitled to participate in the elections of Chairman and Vice Chariman of APMC, Dhanera.

(C) Pending admission, hearing and final disposal of the petition, this Hon'ble Court be pleased to stay the

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execution, operation and implementation of the impugned order dated 26.03.2021 passed by the respondent No.1 - Regional Commissioner of Municipalities in Appeal No.03 of 2021, annexed at Annexure - A to the petition.

(D) Pending admission, hearing and final disposal of the petition, this Hon'ble Court be pleased to restrain the respondent No.2 from participating in the elections of Chairman and Vice Chairman of APMC. Dhanera scheduled to be held on 01.04.2021

OR IN THE ALTERNATIVE

(E) Pending admission, hearing and final disposal of the petition, this Hon'ble Court be pleased to keep the vote to be cast by the respondent no.2 in the elections of Chairman and Vice Chairman of APMC, Dhanera, in a separate sealed cover and the same may not be counted till the disposal of the present petition.

(F) This Hon'ble Court may be pleased to grant such other and further relief/s as deemed just and proper by this Hon'ble Court in the interest of justice."

2. Heard learned advocate Mr.Dipen Desai for the petitioners, learned Government Pleader Ms.Manisha Lavkumar Shah with learned Assistant Government Pleader Ms.Aishwarya Gupta with learned Assistant Government Pleader Ms.Nidhi Vyas for Respondent No.1 and learned advocate Mr.V.C.Vaghela with learned advocate Mr.Anand V. Thakkar for Respondent No.2, through video conference.

3. At the outset, it is agreed upon between the parties that today matter will be heard only for the purpose of ad­interim / interim relief and hence the arguments of learned advocates for the

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respective parties are considered only for the purpose of grant of ad­interim relief / interim relief.

4. Learned advocate Mr.Dipen Desai submitted that the impugned order dated 26.03.2021, passed by the Regional Commissioner of Municipality, Gandhinagar Zone, which is under challenge by way of this petition, is bad as per law and the grounds assigned by the learned Regional Commissioner are not supported by law. According to Mr.Desai the proceedings before the Regional Commissioner, Gandhinagar Zone were preferred at the instance of Respondent No.2 and in those proceedings the Respondent No.1 permanently suspended the circular resolution No.30 dated 10.03.2021 on the ground that the same is passed contrary to the provisions of Section 51(12) of the Gujarat Municipalities Act, 1963 ('the Act, 1963', for short).

4.1 Mr.Desai mainly contended that the provisions of Section 51(2) of 'the Act, 1963' can be said to be a procedural provision and the same cannot be said to be a mandatory provision. Mr.Desai, in support of his aforesaid contention, cited various judgments which are as under:

(i) AIR 1966 SC 330, K.Narasimhiah vs. H.C.Singri Gowda;

(ii) AIR 1955 SC 314, Shyabuddinsab Mohidinsab Akki vs. Gadag Betgeri Municipal Borough;

(iii) 1996 (1) G.L.H. 22, Ramji Kachara Padaliya vs. Porbandar Nagarpalika and others;

(iv) Writ Petition No.929 of 2015, (High Court of Madhya

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Pradesh, Gwalior Bench), Farook Mohammad vs. State of MP and others;

(v) (2017) 1 SCC 283, Cheviti Venkanna Yadav vs. State of Telangana and others;

(vi) 1989 SCC OnLine Kar 49 (High Court of Karnataka at Bangalore), Somashekara Desai vs. State of Karnataka and others.

4.2 Mr.Desai submitted that, of course, the validity of the order under challenge can be decided at later point of time, however, today the main concern of the petitioner is to see that elections of Agriculture Produce Market Committee, Dhanera, which are scheduled on 01.04.2021 may not get affected by virtue of order dated 26.03.2021, which is under challenge. Mr.Desai submitted that vide Circular Resolution dated 09.10.2020, the petitioner no.2 was nominated by Dhanera Municipality as the Member of Agriculture Produce Market Committee, Dhanera. On account of her removal after following due procedure as prescribed under Section 37 of the Act, 1963, petitioner no.2 ceased to be the Member of Dhanera Municipality and, therefore another Resolution dated 12.01.2021 was passed by the members of the political party who were in minority according to Mr.Desai.

4.3 As per Resolution dated 12.01.2021, which is produced at Page:70 and 71 of the petition, Respondent No.2 was nominated by Dhanera Municipality to represent Dhanera Municipality at APMC, Dhanera. According to Mr.Desai, Resolution dated 09.10.2020 and Resolution dated 12.01.2021 were also the circular resolutions

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which were never questioned by anyone and, therefore, Resolution dated 10.03.2021 also being circular resolution, the same should not have been questioned by Respondent No.2 and the said resolution is absolutely just, legal and proper.

4.4 Mr.Desai submitted that, at this stage he is confining his prayer only to the extent of alternative prayer which Mr.Desai has confined to seek in terms of para:6, and (E) which is reproduced below and if the same is not granted, in that case, great prejudice would be caused to the petitioners.

"OR IN THE ALTERNATIVE

(E) Pending admission, hearing and final disposal of the petition, this Hon'ble Court be pleased to keep the vote to be cast by the respondent no.2 in the elections of Chairman and Vice Chairman of APMC, Dhanera, in a separate sealed cover and the same may not be counted till the disposal of the present petition."

4.5 In support of aforesaid contention, Mr.Desai cited series of judgments mentioned in para:4.1 since the election is scheduled tomorrow i.e. 01.04.2021, instead of elaborately citing ratio of those judgments at length and discussing each and every judgment separately, considering the urgency and short time left, the sum and substance of ratio of aforesaid judgment cited by learned advocate Mr.Desai was that the provisions of Section 51(12) of the Act, 1963 are directive in nature and cannot be termed as mandatory. He further submitted that since the party to which

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petitioner no.2 belongs having majority in the Municipality is a matter of pleasure doctrine to appoint or nominate any member in the APMC and, therefore, even if the order passed by the Respondent No.1 is allowed to stand during the pendency of petition, then also he is entitled to relief to the effect that vote that the Respondent No.2 may cast, may put in seal cover and may not be accounted till the final disposal of this petition, it would serve the ends of justice.

4.6 Mr.Desai further submitted that the Respondent No.2 neither have vested right nor any prejudice would be caused to the Respondent No.2 in case if relief as prayed for is granted in favour of petitioner. He further pointed out that in view of judgment rendered in Writ Petition being Special Civil Application No.929 of 2015 by Hon'ble Madhyapradesh High Court at Gwalior Bench dated 17.11.2015, even if it is held that provisions of Section 51(12) of the Act, 1963 are mandatory then also no prejudice is caused to Respondent No.2 and hence Resolution cannot be suspended permanently.

5. As against that, learned Government Pleader Ms.Manisha Lavkumar Shah questioned the maintainability of that petition by stating that the petition is not maintainable as the petitioner has alternative efficacious remedy by preferring an appeal as provided under sub­section 3 of Section 258 'of the Act, 1963' before the Commissioner of Municipalities as the petitioner ought to have approached the Commissioner of Municipalities first before approaching straightway this Court by way of present petition.

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Learned Government Pleader further submitted that this petition is preferred by two petitioners i.e. (i) Dhanera Municipality through its President and (ii) Kamlaben Rameshbhai Nai, who happens to be person who was also nominated by Resolution dated 09.10.2020 and subsequently was removed as Member of the Municipality and thereafter pursuant to order passed by this Court in Special Civil Application No.670 of 2021 her position as Member was restored and vide Resolution Circular dated 10.03.2021 she was once again nominated. According to learned Government Pleader, the petitioner no.2 ought to have filed separate petition as the petition preferred by Municipality is filed in different capacity and the petitioner no.2 being a person who is directly affected, ought to have challenged the order dated 26.03.2021 by availing appropriate remedy available under the law. In support of her contentions, learned Government Pleader submitted that usually powers under Section 226 of the Constitution of India are exercised by the High Court straightway in case only if the order passed by the authority is without jurisdiction or as perverse or patently illegal. The order under challenge cannot be termed tobe an order without jurisdiction, perverse or patently illegal and, therefore, petitioners straightway cannot approach this Court by way of this petition under Article 226 of the Constitution of India. She submitted that the grievance of the petitioner could have been redressed by the Appellate Authority under sub­section (3) of Section 258 'of the Act, 1963' had the petitioner approached authority by way of appropriate proceedings. She further submitted that since today the hearing was confined only for the purpose of granting or refusing ad­interim relief, the main ingredients that the

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Court requires to look into or consider would be prima facie case, balance of convenience and irreparable loss. According to learned Government Pleader, none of these essential ingredients are in favour of petitioner.

5.1 She submitted that as far as prima facie case is concerned, the provisions of Section 51(12) of 'the Act, 1963' is self­explanatory as Section 51(12) provides that subject to the provisions of Section 51(3), the provisions of Section 51(12) is required to be adhered to. She further pointed out that language of Section 51 starts with 'the following provisions shall be observed with respect to meetings of municipality' and, therefore, all the provisions of sub­section (5) of Section 51 are mandatory in nature. To substantiate her argument, learned Government Pleader drew attention of the Court to the language of sub­section (12) of Section 51 and submitted what is supposed to be done in compliance of sub­section (12) of Section 51 is that the Resolution which is sought to be modified or cancelled within three months after passing thereof must be submitted by not less than one and half of the whole numbers of councilors and must be passed in a general meeting. Even while holding general meeting, the fulfillment of provisions of Section 51(3) must take place and seven days clear notice must be given and then and then only after motion or propositions for modification of such Resolution can be considered. Learned Government Pleader also drew attention of the Court to provisions of Section 61 of Act, 1963 which according to her is a section dealing with procedure in respect of circular Resolution. Learned Government Pleader drew attention of the Court Section 61 and

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submitted that circular Resolutions are meant only for inter committee Resolutions and cannot be adhered to while passing any Resolution like the one which is passed by the Municipality. She further submitted that once the Resolution is passed in General meeting, it cannot be modified or cancelled by way of circular resolution. She submitted that since the Respondent No.1 has taken a view that the Circular Resolution is passed in gross violation of provisions of Section 51(12), the petitioner has miserably failed to demonstrate that the provisions of Section 51(12) were complied with or taken care of by petitioner no.1 Municipality. She drew attention to the fact that on 12.03.2021 only the Circular Resolution was passed which was under challenge before the respondent No.1 and, therefore, the same has rightly been permanently suspended by Respondent No.1. Therefore, according to learned Government Pleader there is no prima facie case in favour of the petitioner.

5.1 As far as balance of convenience is concerned, according to learned Government Pleader, the proceedings in respect of removal of petitioner no.2 as a Member are pending and those proceedings will have direct bearing on the subject matter. Ultimately, the relief by way of alternative interim prayer that the petitioner is seeking, the petitioner is trying to get relief in consonance with the Gujarat Municipalities Act, 1963 and is the relief which would fall under Agriculture Produce Market Committee Act. Instead of taking out separate proceedings in respect of redressal of grievance of petitioner no.2, the petitioner is trying to mix­up things and prayed for a relief before this Court which is out of scope of the order

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which is under challenge by way of this petition filed by the petitioners.

5.2 As far as irreparable loss is concerned, learned Government Pleader submitted that in case if the petitioner succeeds in the present petition, the petitioner can always seek further directions from this Court by filing appropriate application so as to see that the interest of the petitioner can be protected. Today it is too premature anything in favour of the petitioners when order under challenge is staring against the petitioner or not and, therefore, learned Government Pleader has requested dismissal of this petition or refusal of any relief in favour of the petitioners.

5.3 Ms.Shah also drew attention of the Court to the effect that, according to her, some material facts are concealed in the petition. She drew attention of the Court that on the very day when Circular was passed on 10.03.2021, there was also General Body meeting of Dhanera Municipality wherein Resolution rejecting 'No Confidence Motion' was passed. According to her, learned Government Pleader since the earlier Resolution dated 09.10.2020 was passed in a General Meeting, instead of passing circular resolution dated 10.03.2021 the petitioner could have included this item also in General Body meeting by circulating it as an agenda by adhering to provisions of the Act. By pointing out this fact, learned Government Pleader submitted that since the General Body meeting was also convened on 10.03.2021 and yet instead of including the subject in the agenda, a circular Resolution was passed and, therefore, the Respondent No.1 was right and justified in passing the impugned

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order and, therefore, any relief if granted in favour of petitioner, in that case, that would amount to granting final relief or to nullify or to dilute the order passed by Respondent No.1.

6. Learned advocate Mr.V.C.Vaghela for respondent no.2 submitted that petitioner has conveniently skipped few important facts. According to Mr.Vaghela the Resolution dated 09.10.2020 was passed by Dhanera Municipality in view of the fact that term of the nominated person from Dhanera Municipality to APMC Dhanera was getting over on 31.08.2020. Thereafter the State Government vide appropriate Notification extended term of Dhanera APMC till 31.12.2020. According to Mr.Vaghela, if at all, it is presumed that the Resolution dated 09.10.2020, which entitles the petitioner no.2 to act as nominated Member and that was just, legal and proper as that Resolution still held the field only till 31.12.2020 as term of Dhanera, APMC was live only till 31.12.2020. According to Mr.Vaghela on expiry of term of APMC, Dhanera on 31.12.2020 after midnight, the fresh elections were required to be held and, therefore, pursuant to communication dated 11.01.2021 upon request made by APMC, Dhanera, circular resolution dated 12.01.2021 was passed nominating Respondent No.2 as a Member of Dhanera Municipality. According to Mr.Vaghela by way of impugned Resolution dated 10.03.2021, the petitioners have tried to nullify the effect of Resolution dated 12.01.2021 as the said Resolution dated 12.01.2021 was never cancelled and the same still holds the field. According to Mr.Vaghela since the term of Dhanera, APMC was also expired on 31.12.2020, the Resolution dated 10.03.2021 cannot operate even

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if the petitioner no.2 is once again nominated by reviving the Resolution dated 09.10.2020 and, therefore, according to Mr.Vaghela since the petitioner no.2's nomination was in respect of earlier term which already expired on 31.12.2020 and since after 01.01.2021 at no point of time petitioner no.2 was ever nominated as Member of Dhanera Municipality and, therefore, cannot pray equity and seek any relief. Mr.Vaghela further submitted that apart from these submissions, he adopts rest of submissions made by learned Government Pleader.

7. I have heard learned advocates for the parties and considered the submissions advanced by learned advocates for respective parties. I have also gone through the record produced along with the petition.

7.1 As far as the main prayer of the petition in respect of ad­ interim is concerned, the petitioner has prayed by way of ad­ interim relief to get the vote to be casted upon by Respondent No.2 in the election of Chairman and Vice Chariman in separate sealed cover and the same may not be accounted till final disposal of this petition. Looking to the entire petition and considering the fact that entire proceedings which have given birth to present petition were started once the petitioner Municipality passed the circular resolution dated 10.03.2021 whereby the petitioner no.2 was once again nominated as Member of Petitioner No.1 Municipality to represent Dhanera Municipality in APMC, Dhanera. Since aforesaid circular resolution was challenged by Respondent No.2 before the Respondent No.1 by preferring statutory appeal first, the very

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petitioners preferred writ petition being Special Civil Application No.5232 of 2021 which was later on disposed of on the basis of consensus arrived at between the parties as the hearing of the matter before Respondent No.1 was preponed and parties were directed to be heard on 26.03.2021. Vide order dated 22.03.2021 certain directions were issued it is against that order which was passed by Respondent No.1 pursuant to which hearing took place on 26.03.2021. A mention was made for circulation of this petition yesterday i.e. 30.03.2021 and that is how matter is circulated today at serial no.3 in per court board. This goes to show that main reason behind filing of this petition was to challenge the order dated 26.03.2021 passed by the Respondent No.1. It is pertinent to note that all throughout during all litigations whether by way of Special Civil Application No.670 of 2021 or Special Civil Application No.5232 of 2021 is concerned, in those petitions, the relief prayed for was in respect of provisions of Municipalities Act, 1963 whereas though in this petition primary order dated 26.03.2021 passed by Respondent No.1 is under challenge, the petitioner has prayed for reliefs under the APMC Act as well. When a query was put to learned advocate Mr.Desai though the order dated 26.03.2021 is challenged by way of this petition, as to why relief in respect of elections of APMC Dhanera are prayed for by the petitioner, as can be seen in relief clause Para:6(B), he submitted that the effect of the order dated 26.03.2021 will have bearing on the aforesaid election and that is how those prayers are incorporated. However, today what is required to be seen for granting of any relief is something that is on record and Court can not consider something that is not on record. The petitioner has

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challenged the order dated 26.03.2021 whereby it is held that the Resolution No.30 dated 10.03.2021 is suspended permanently on the ground that it was passed contrary to provisions of Section 51(12) of the Act, 1963. Even the judgments cited by the petitioner are also in respect of fact whether provisions of Section 51(12) of the Act, 1963 can be said to be mandatory or directive. As stated in forgoing paras, the contention of Mr.Desai that the appointment of nominated Member in APMC is a matter of pleasure doctrine and if relief as prayed for in favour of petitioner is not granted, it would cause damage to the petitioners. Now if the argument of Mr.Desai in respect of provisions of Section 51(12) of 'the Act, 1963' can be said to be directive or mandatory is an issue which requires the petition to be adjudicated finally. Today, the matter is heard only for the purpose of grant of ad­interim / interim relief on the basis of memo of petition only and to meet with the contentions of learned advocate Mr.Desai the Court would require assistance from learned Government Pleader as well as learned advocate Mr.Vaghela by filing appropriate affidavit/s controverting submissions made by learned advocate Mr.Desai. Today, with limited material on hand, the Court cannot go into legality or validity whether provisions of Section 51(12) can be said to be mandatory or directive in nature. This is something which if considered at this juncture in favour of petitioner in that case it would amount to allow the petition at an admission stage. Secondly, as far as nomination of member in the APMC by Municipality by exercising pleasure doctrine is concerned, in that case, the pleasure doctrine is nothing to do with the subject matter of this petition as according to Mr.Desai the petitioners are having majority in the municipality and, therefore, they can always

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exercise such discretion if that is so. Such exercise of pleasure doctrine can be exercised later on also by the petitioner and for that no adjudication from this Court is required at this stage. Today, when prima facie the order passed by the Respondent No.1 does not seem to be in contravention of provisions of Gujarat Municipalities Act, 1963, such argument of learned advocate Mr.Desai cannot be accepted.

7.2 As far as argument of learned advocate Mr.Desai in respect of prejudice that may be caused to the petitioner is concerned, in that case, this Court is of the view that by challenging the order passed by Respondent No.1 in exercise of powers under Section 258 of the Gujarat Municipality Act, 1963, the petitioner is indirectly trying to achieve some relief which otherwise would fall within the domain of Agriculture Produce Market Committee Act and, therefore, petitioner can always take appropriate remedial measure under the APMC Act and, therefore, at this juncture, I do not intend to pass any order which may run contrary to one which is passed by Respondent No.1 authority and which prima facie according to this Court may require consideration but not requires to be stayed at this juncture coupled with the fact that as rightly pointed out by learned Government Pleader that petitioner has failed to show any prima facie cause in his favour or balance of convenience or irreparable loss. I do not find any reason to grant any relief as prayed for by learned advocate Mr.Desai for the petitioners.

8. In view of the aforesaid observations, prayer made by learned advocate Mr.Desai for grant of ad­interim relief is refused.

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However, considering the fact that petitioner has straightway challenged the order passed by Respondent No.1 before this Court without availing alternative remedy provided to the petitioner under sub­section (3) of Section 258 of the Gujarat Municipality Act, 1963 keeping that issue open subject to objections that may be raised by the respondents, I am inclined to issue Notice making it returnable on 15.04.2021. Ms.Nidhi Vyas, learned Assistant Government Pleader waives service of Notice on behalf of Respondent State authority and Mr.Vaghela learned advocate waives service of notice on behalf of private respondent.

Direct service permitted.

(NIRZAR S. DESAI,J) MISHRA AMIT V.