Alpabala Dilipkumar Sabwa vs State Of Gujarat
2025 Latest Caselaw 2074 Guj

Gujarat High Court

Alpabala Dilipkumar Sabwa vs State Of Gujarat on 23 January, 2025

Author: Sunita Agarwal

Bench: Sunita Agarwal

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                               C/LPA/1338/2022                                ORDER DATED: 23/01/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                                        R/LETTERS PATENT APPEAL NO. 1338 of 2022
                                     In R/SPECIAL CIVIL APPLICATION NO. 12460 of 2022
                                                           With
                                        CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
                                       In R/LETTERS PATENT APPEAL NO. 1338 of 2022
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                                                 ALPABALA DILIPKUMAR SABWA & ORS.
                                                               Versus
                                                     STATE OF GUJARAT & ANR.
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                       Appearance:
                       MR SP MAJMUDAR(3456) for the Appellant(s) No. 1,10,2,3,4,5,6,7,8,9
                       MR. NISHIT P GANDHI(6946) for the Appellant(s) No. 1,10,2,3,4,5,6,7,8,9
                       MS. MAITHILI MEHTA, ASSISTANT GOVERNMENT PLEADER for the
                       Respondent(s) No. 1
                       RULE SERVED for the Respondent(s) No. 2
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                          CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
                                SUNITA AGARWAL
                                and
                                HONOURABLE MR. JUSTICE PRANAV TRIVEDI

                                                          Date : 23/01/2025

                                                           ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)

Heard the learned counsel for the appellant and perused the records.

2. The present appeal is directed against the judgment and order dated 09.09.2022 passed by the learned single Judge dismissing the writ petition challenging the order dated 30.06.2022 passed by the Dy. Secretary, Urban Development and Urban Housing Department, Government of Gujarat, dissolving the Botad Nagarpalika in exercise of powers under Section 263 of the Gujarat Municipalities Act, 1963. The order impugned dated 30.06.2022 had been passed after giving notice dated 13.06.2022 to the petitioner No.1 namely the

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President of the Nagarpalika and the elected Members thereof calling upon to explain as to why the Nagarpalika be not dissolved under Section 263(1) of the Gujarat Municipalities Act, 1963 on the allegations that the elected body of the Nagarpalika had failed to discharge the duties entrusted upon it under the Municipalities Act and the Nagarpalika is unable to discharge its duties.

3. There is no dispute about the fact that the show cause notice was duly served upon the petitioners, who are the President and the Councilors of the Botad Nagarpalika and a reply to the show cause notice submitted by the petitioner No.1 on the Resolution passed in a Special General Meeting of the Botad Nagarpalika. The reply dated 28.06.2022 has been considered by the State Government and while passing the order dated 30.06.2022, the findings had been returned on each issues, after noticing the explanation submitted by the petitioners in reply to the show cause notice. The findings returned by the State Government in the order impugned can be found from page Nos. 76C to 76F of the paperbook.

4. The learned single Judge has noted the contentions of the petitioners that the order dated 30.06.2022 was passed by the Deputy Secretary, Urban Development Department and Housing Department without appreciating the detailed reply submitted by the petitioners to the show-cause-notice and no reasons have been assigned to reach at the conclusion therein, to the effect that the Nagarpalika has failed to discharge its duties in accordance with the provisions of the Act. While dealing with the said contentions, the learned single Judge has noted in paragraph Nos. 7.7 and 7.8 of the judgment impugned that Section 51 of the Municipalities Act,

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1963 requires conducting periodical meetings for the development works in the months of January, April, July and October of each year. However, no such meeting was conducted and the explanation submitted by the Nagarpalika was contrary to the statutory provisions. Further no explanation could be submitted for non-utilisation of grant of Rs. 24 crores under Swarnim Jayanti Chief Minister Urban Development Scheme. There were instances of lapse of grants under the 14 th Pay Commission and the 15 th Pay Commission. It was admitted by the Nagarpalika that such grants remained unutilised. It was also noted that there is an admission on the part of the Nagarpalika of unused grant of outgrowth area of Rs. 1.61 crores. Further, as against the demand of Rs. 23.48 crores towards taxes, recovery of only 4.38 crores had been made in the year 2021-2022, which comes to 18.67%. There was an allegation of employment of 175 daily wagers/sweepers as against the instructions issued by the State Government, for which no proper justification could be given. It was, thus, opined by the learned single Judge that the Nagarpalika has failed to discharge its duties in competent and efficient manner and being incompetent and inefficient, no infirmity can be found in the order of the State Government in dissolving the Nagarpalika.

5. Having considered the said facts, the learned single Judge has proceed to record the decisions of the Apex Court in the matter of scope of judicial review.

6. In so far as the submission of the learned counsel for the appellant that the order dated 30.06.2022 is a non-speaking order, inasmuch as, the respondent Dy. Secretary, Urban Development and Urban Housing Department, Government of Gujarat has not even

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considered the explanation offered by the petitioner, suffice it to say that having gone through the findings returned by the learned single Judge as also the grounds mentioned in the order impugned 30.06.2022 in the writ petition, we are of the view that the explanation submitted on behalf of the Nagarpalika, as appended at page No. '46' of the paper book, is not such which would amount to giving proper explanation to the allegations made in the show- cause-notice dated 13.06.2022.

7. Moreover, the principles of natural justice have been complied with by giving a proper opportunity of explanation to the Nagarpalika before taking action under Section 263 of the Municipalities Act, 1963. It is neither possible nor permissible for this Court in exercise of its power as a Court of Appeal to take an exception to the findings returned by the learned single Judge passed on the order dated 30.06.2022. It is not possible for this Court to re-appreciate the evidence sought to be brought before us to take an exception to the findings recorded in the order dated 30.06.2022, as affirmed by the learned single Judge in the impugned judgment, subject matter of challenge herein.

8. Even otherwise, we may note that within the limited scope available under Section 15 of the Letters Patent, no interference is called for, inasmuch as, normally the Division Bench would not, unless there exist cogent reasons, differ from a finding of fact arrived by the learned single Judge (Reference: Umabai vs. Nilkanth Dhondiba Chavan) [(2005) 6 SCC 243].

9. In B. Venkatamuni vs. C.J.Ayodhya Ram Singh and Others

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[(2016) 13 SCC 449] the Apex Court observed in para-11 that, " In an intra-court appeal, the Division Bench undoubtedly may be entitled to reappraise both questions of fact and law, but the following dicta of this Court in Umabai v. Nilkanth Dhondiba Chavan (2005) 6 SCC 243 could not have been ignored by it, whereupon the learned counsel for the respondents relied ". The Apex Court in para-52 observed as under:-

"52. It may be, as has been held in Asha Devi v. Dukhi Sao (1974) 2 SCC 492 that the power of the appellate court in intra-court appeal is not exactly the same as contained in Section 100 of the Code of Civil Procedure but it is also well known that entertainment of a letters patent appeal is discretionary and normally the Division Bench would not, unless there exist cogent reasons, differ from a finding of fact arrived at by the learned Single Judge. Even as noticed hereinbefore, a court of first appeal which is the final court of appeal on fact may have to exercise some amount of restraint. 25. The suspicious circumstances pointed out by the learned District Judge and the learned Single Judge of the High Court, were glaring on the face of the record. They could not have been ignored by the Division Bench and in any event, the Division Bench should have been slow in interfering with the findings of fact arrived at by the said courts. It applied a wrong legal test and thus, came to an erroneous decision.

10. For the reasoning given by the learned single Judge, we do not find any reason to interfere with the decision impugned in the present appeal. The appeal stands dismissed, accordingly. The Civil Application for stay stands disposed of.

(SUNITA AGARWAL, CJ )

(PRANAV TRIVEDI,J) C.M. JOSHI