Gujarat High Court
Ujeshbhai Ishwarbhai Patel vs State Of Gujarat on 1 October, 2021
Bench: Sonia Gokani, Rajendra M. Sareen
C/SCA/14651/2021 ORDER DATED: 01/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14651 of 2021
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UJESHBHAI ISHWARBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR BM MANGUKIYA(437) for the Petitioner(s) No. 1,2,3,4
MS BELA A PRAJAPATI(1946) for the Petitioner(s) No. 1,2,3,4
Senior Advocate Mr. Mihir Joshi assisted by Ms. Aishwarya Gupta, Ld.
Advocate
for the Respondent(s) No. 2,3,4
MS.M. D. MEHTA, AGP(99) for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
Date : 01/10/2021
ORAL ORDER
(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)
1. The petitioner before this Court is seeking to challenge the legality
and validity of the actions of the respondents of holding the
election of the Valsad Municipality under section 41 (1) of the
Gujarat Municipality Act, 1963 (hereinafter referred to as "Act" for
short) for the post of three councilors which are allegedly said to
have fallen vacant.
2. It is averred by the petitioners that proceedings have been initiated
against the petitioners under the Gujarat Provisions for
Disqualification of Members of Local Authorities for Defection
Act, 1986 (hereinafter referred to as "Defection Act"for short). On
25.03.2021, the Designated Authority has disqualified the
petitioners, the petitioners have preferred a writ petition before this
C/SCA/14651/2021 ORDER DATED: 01/10/2021
Court being Special Civil Application No.6793 of 2021. The said
matter is pending before this Court.
3. Grievance on the part of the petitioners is that the matter has not
yet attained its finality although the Court has heard both the sides
and now the same is pending for judgments. Therefore, according
to the petitioners, post of the councilors have not fallen vacant and
election could not have been declared on these posts without any
seats being vacant.
4. The election of Valsad Municipality was held on 17.12.2018 and
the term of the committees is of five years from the appointed day
of its first meeting, and , thus, the said term of the Valsad
Municipality would expire in the month of February, 2023. The
total strength of the Councilors is of 44. Petitioners have also given
breakup of the councillors belonging to different political parties.
5. A show cause notice was issued by the Commissioner of
Municipalities on 29.07.2019 to the petitioners in exercise of the
powers conferred upon him under sub-section (1) of section 37 of
the Act calling upon the petitioners as to why the petitioners should
not be removed as the councilors of the Valsad Municipality in
view of the alleged disgraceful conduct of the petitioners in the
meeting held on 29.01.2019 of the Valsad Municipality. The
petitioners were allegedly raising their voice and were making their
representation. It is alleged that they did not maintain decorum,
misbehaved, abused their offices and have disrupted the Valsad
Municipality.
6. According to them, in their reply to the show cause notice dated
C/SCA/14651/2021 ORDER DATED: 01/10/2021
30.08.2019, some of the documents were needed by the petitioners
and such requests was reiterated on 17.03.2020 and thereafter.
7. This eventually on 25.03.2021 resulted into the removal of the
petitioners from the post of councilors of Valsad Municipality, in
exercise of the powers under sub-section (1) of section 37 of the
Act.
8. Aggrieved petitioners have preferred Special Civil Application
No.6793 of 2021 seeking to challenge their impugned order of
removal dated 25.03.2021 where they have also sought the stay of
implementation of the said order. The said petition is pending.
In the meantime, the State Election Commissioner, Gandhinagar
has issued a notification dated 06.09.2021 for holding the bye-
election of various municipalities which included Valsad
Municipality. Election for four seats have been declared and the
date of election is scheduled on 03.10.2021. According to the
petitioners, this is nothing but an act to overreach the judicial
process. In fact the seats cannot be said to have fallen vacant till
the judicial process reaches to its ultimate stage, therefore, the
petitioners are before this Court seeking following reliefs:-
(A) Be pleased to issue a writ of mandamus or a writ in
the nature of mandamus or any other appropriate writ,
order or direction and be pleased to hold and declare that
the respondents have no power, authority or competence
to hold the election of Valsad Municipality from ward
no.1,2,5,6 for the post of the councilors which have not
fallen vacant.
(B) Pending admission and final disposal of the present
petition, be pleased to direct the respondents, their agents
and servants from holding the election of Valsad
Municipality for the post of Councilors on ward
no.1,2,5,6 as proposed by the notification dated
C/SCA/14651/2021 ORDER DATED: 01/10/2021
06.09.2021.
(C) Be pleased to pass such other and further orders as
may be deemed fit and proper.
9. Noticing the proceedings the first day on live streaming the
respondent no.2 State Election Commissioner chose to appear on
their own, represented by learned Senior Counsel Mr. Mihir Joshi
assisted by learned advocate Ms. Aishwarya Gupta and
respondents no.1 and 3 and 4 are represented by learned AGP Ms.
M.D. Mehta.
10.Considering the short time as the election is scheduled on
03.10.2021, we have chosen to hear both the sides finally with
consent at admission stage.
11.Learned advocate Mr. Mangukiya appearing for the petitioners has
heavily relied on decision of this Court rendered in case of
Jagdishbhai Mangabhai VasavaV/s. State of Gujarat and Ors.
reported in (2019)2 GLR 1292. According to him, till dispute in
relation to the removal is finally adjudicated by the competent
authority, the Election Commissioner could not have declared the
seats to have fallen vacant and the election also could not have
been scheduled by the Municipality. The action on the part of the
respondents thus is illegal and arbitrary. Further he has urged that
what all the petitioners could have done is to approach this Court.
Thereafter, it was not in their hands to do anything further. Since,
the challenge of the action of the respondents to remove the
petitioners from the post of councilors of the Valsad Municipality
is pending in Special Civil Application No.6793 of 2021, the Court
may direct the respondent authority not to hold the election on
C/SCA/14651/2021 ORDER DATED: 01/10/2021
03.10.2021. According to him, it is definitely an act of the
overreaching the judicial process.
12.Learned Senior Counsel Mr. Mihir Joshi has strongly resisted the
plea and has taken us through the provisions of the Gujarat
Municipality Act, 1963. According to him, the necessary relief
ought to have been asked in the pending petition being Special
Civil Application No.6793 of 2021 instead of approaching this
Court by way of this separate petition questioning interpretation of
statutory provisions . At the stage when election proceedings have
already been initiated, according to the learned senior counsel, on
equity and general consideration, whether the petitioners are
entitled to get any relief is the point, even if the Court considers,
there are parallel proceedings which have been initiated and
interim relief ought to be asked in that proceedings and not in this
petition. He has urged that section 37 of the Municipality Act, if it
is looked at, it speaks of removal of the councilors 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 councilors of the
municipality and this needs to be done after giving opportunity of
being heard on issuance of a notice. Once this process is
completed, there is nothing statutorily which would prevent the
authority from declaring the post to be vacant. In absence of the
any provision for suspension of this action, he strenuously urged
that there are no statutory hitches , whereby suspension process is
put to a halt. Petitioners are already removed , according to learned
Counsel and unless there is a direction from the Court of staying
impugned action of the respondent authority, the Election
C/SCA/14651/2021 ORDER DATED: 01/10/2021
Commissioner is required to act within a specified period and
filling up of the vacancies for electing the councilors, as general
election would come into play under section 42 of the said Act. In
exercise of such powers on 06.09.2021 the notification was
published. Vacancies would arise within 15 days of the removal
which has come into force on 25.03.2021. Hence, if the provisions
of sections 35, 37 and 42 all are looked at even if there was a
unilateral act of resignation,it must have an effect and once
accepted by the authority concerned, election process shall need to
begin.
13.On thus hearing both the sides and also considering the
chronological events as could be noticed from the averments set
out in the petition, show cause notice in the instant case is issued
on 29.07.2019 for the alleged disgraceful conduct in the meeting
held on 29.01.2019 of the Valsad Municipality. Such allegations
on the petitioners are not to be gone into as the petitioners have
made a separate challenge before this Court. Suffice to note that
show cause notice was issued and opportunity of hearing appears
to have been given about the which of course, petitioners have
raised certain averments in parallel proceedings which is pending
before this Court and hence, without opining on sufficiency of the
same, the fact needs to be acknowledged that action of removal
under section 37 of the Act has taken place. Posts of the councilors,
according to the respondents hence, have fallen vacant.
Worthwhile it would be to reproduce at this stage section 37 of the
Act:
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
C/SCA/14651/2021 ORDER DATED: 01/10/2021
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.
(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.
14.It is quite clear that State is empowered to remove from the office
any councilor of the Municipality, on its motion or on receipt of
recommendation of the municipality, in that behalf, supported by
the majority of the total number of the then councilors of the
municipality. This needs to be done after giving the councilers
opportunity of being heard and on giving due notice, in that behalf
by the municipality and after making such inquiry, as deemed
appropriate. When the State Government thereafter is of the
opinion that councilors have been guilty of the misconduct in the
discharge of his duties or any disgraceful conduct or has become
incapable of performing his duties under the act, order of removal
takes place. We could notice that emphasis on the part of the
petitioners is of the initiation of the proceedings under Section 37
being contrary to the scheme of the Act. It is also noticed that the
merits of action of removal is also being simultaneously questioned
in the present petition, when another petition is pending before this
Court. Limited question this Court is examining is whether holding
C/SCA/14651/2021 ORDER DATED: 01/10/2021
of the election of Valsad Municipality for the post of councilors as
per the notification dated 06.09.2021 which is scheduled on
03.10.2021 is bad and contrary to law. If the provisions of section
37 is read along with section 42, it defines the procedure for filing
up the vacancies which provide for filling of vacancies when any
vacancy occurs due to failure to elect the full member of
councillors at a general election or due to the non-acceptance of an
office by a person elected to be a councilor,or when any vacancy of
a councilor occurs due to any reason, either the Chief Officer or in
the absence of the Chief Officer such officer as the Collector may,
by a general or special order, designate for the purpose, shall
within fifteen days from the date on which the vacancy occurs is
required to give a notice thereof to the State Election Commission,
on receipt of a notice under sub-section (1), the State Election
Commission shall arrange for holding an election to fill the
vacancy within six months from the date on which such vacancy
has arisen.
15.If chronological events are noticed, after once the show cause
notice had been issued in the case of the present petitioners, the
order of removal has come to be passed on 25.03.2021. Once such
order is passed, unless the court stays the same, which it has not,
nothing stops the authority from treating the post statutorily to be
vacant. Thus, a request has been sent to the Secretary, State
Election Commissioner on 31.03.2021 and a notification for
holding election has been issued on 06.09.2021 which has been
scheduled on 03.10.2021 and the entire process of the election is
to be completed by the 08.10.2021.
16.The decision of this Court in the case of Jagdishbhai (supra) is
C/SCA/14651/2021 ORDER DATED: 01/10/2021
much relied upon, it is the case where the petitioner had been
elected from their respective wards. The term of President and
Vice-President of the Municipality had been expiring and in the
first meeting itself without knowledge, the signatures were
obtained in the blank papers, which was sought to be utilized to
bring about desired voting from such councilors. They were
threatened to be removed by using those blank papers as their
resignations. Apprehending this, the petitioners moved before this
Court by filing Special Civil Application No.8650 of 2018, which
was withdrawn with a liberty to file fresh petition in the event of
the apprehension which was expressed by the petitioners in that
petition came to be correct. According to the petitioner, their
apprehension eventually came to be true as the blank papers which
were utilized for converting them into the resignation and on that
basis the petitioners councilors seats were sought to be brought to
an end. Aggrieved petitioners had approached the competent
authority and urged to examine entire facts and the dispute qua
resignations and their genuineness,and hence, there was no reason
for either the Chief Officer or the Election Authorities in
precipitating the by-election proceedings so as to scuttle the very
scrutiny at the end of the adjudicating authority.
17.In such circumstance, examining the relevant provision of section
35 (5) of the Municipality Act, the Court had allowed the petition
and the communications on the part of the respondents have been
quashed. According to the Court, the second proviso would clearly
indicate that the vacancies cannot be said to have finally occurred
in case where a substantive dispute is raised and referred to the
competent authority for its adjudication. This Court was also
C/SCA/14651/2021 ORDER DATED: 01/10/2021
opinion that the time taken by the competent authority can
naturally not be attributed to the councilors or the municipality, but
that in itself would not nullify or render the provision of section 35
(5) otiose, so as to treat those vacancies to have arisen when the
competent authority is scrutinizing the aspect of validity of
resignation or genuineness of the same.
18.Seeking reliance on this decision, the request is made that the
Court has not passed any order in the pending matter and therefore,
unless the judicial proceedings get culminated into opining on
either side, the process must not be allowed to be continued. We
could notice that the statutory provisions of resignation under
section 35 (5) are completely and wholly different than the one
under section 37 of the said act and therefore, interpretation which
has been pressed into the service on the part of the petitioners at the
time of removal is unsustainable. Under Section 37 in the
proceedings once the show cause notice is issued and opportunity
was availed to the other side, nothing stops the effect of removal
statutorily.
19.As answer given by the learned Advocate for the petitioner is to an
effect that challenge to the issuance of notification by the Election
Commissioner would lie before the Division Bench and as the
learned Single Judge has no roster and hence, he has not made a
challenge of issuance of notification dated 06.09.2021. This hardly
explains anything once the petitioners are before the Court,
questioning the legality of the actions of removal from their office
as Councillors, prayers shall need to be holistic and all inclusive, it
is for the concerned Court thereafter , to decide whether to grant
any such interim relief or not. For the parties to urge that it may
C/SCA/14651/2021 ORDER DATED: 01/10/2021
not/ has not requested for relief because the Court has no roster, is
something which is not an acceptable proposition. The fact remains
that in a pending substantive petition
20.Be that as it may, in wake of the removal of the councilors having
already taken place, and there being no provisions, whereby such
order of suspension can be put to a hold and with no statutory
requirement which permits such removal to come into effect only
subject to a certain subsequent proceedings, this Court is of the
opinion that the order of the removal has already taken place and
has come into effect which resulted of the petitioner questioning
and the challenging the same in the Special Civil Application
No.6793 of 2021. The decision which is sought to be pressed into
service will have no bearing for the scheme of the statute being
different than what is provided under section 35 of the
Municipality Act. Resultanly, we need to hold that the posts
having already fallen vacant within 15 days which authorizes the
authority to make a request for filing up the said vacancies by
writing to the Election Commissioner which has been done, the
schedule which has been prescribed under the statue has been
followed and there is nothing illegal which has been noticed in the
respondent no.2 issuing a notification dated 06.09.2021.
Resultantly, the process of election which has been initiated cannot
be put up on a hold in absence of any glaring illegality on the part
of action of the respondent. This would not mean that the Court is
opining on the merits of the removal of the councilors which is a
separate challenge pending before the Court, none of the findings
or observations in this matter will have a bearing so far as the other
matter is concerned. Parties on their independent pleading and
C/SCA/14651/2021 ORDER DATED: 01/10/2021
merits shall succeed or lose.
21.We are conscious of the fact that allowing this process to continue
would mean that the councillors who have been removed and are
before this Court, would have no opportunity to participate in the
election and at the same time, they have approached this Court in
the pending petition,without, of course, any further request for stay
of the proceedings by way of interim relief against the said
notification. And yet, we need to strike a balance
22.Resultantly, present petition is dismissed and disposed of with a
direction that fresh election of councillors being held on
03/310/2021 by virtue of notification dated 06/09/2021 issued by
the Respondent no. 2 shall be subject to the final outcome of the
pending petition being Special Civil Application No.6793 of 2021
applying principle of constructive notice.
No order as to cost.
(SONIA GOKANI, J)
(RAJENDRA M. SAREEN,J)
VARSHA DESAI
