Thakkar, Actg. C.J.
1. LPA No. 1180 of 1999 is admitted. Mr. Tushar Mehta appears and waives service of notice of admission on behalf of respondent Nos. 1 to 22. Mr. Joshi appears and waives service of notice of admission on behalf of respondents Nos. 23, 24, 25 and 28. So far as respondent No. 26 is concerned, learned advocate for the appellants states that it is joined because originally, it was one of the respondents in the petition and though it was ordered to be deleted, in the certified copy, his name continues, Respondent No. 27 was respondent in the SCA, but now, as he is one of the appellants i.e. appellant No. 7, no formal notice is, therefore, required to be issued to him. Thus, service to all the respondents is complete.
2. LPA No. 1215 of 1999 is also admitted. Mr. Tushar Mehta appears and waives service of notice of admission on behalf of original petitioners and Mr. Nanavati waives service of notice of admission on behalf of respondents.
3. Both these appeals arise out of a judgment and order passed by the learned single Judge in SCA No. 619 of 1999 on August 18/19, 1999.
4. 22 petitioners filed the said petition for an appropriate writ, order or direction quashing and setting aside an order of dissolution dated January 21, 1999, passed by the State Government in exercise of powers under Section 263 of the Gujarat Municipalities Act, 1963 (hereinafter referred to as 'the Act') dissolving Veraval-Patan Joint Municipality.
5. The case of the petitioners was that Veraval-Patan Joint Municipality was a Municipality constituted under the Act. It had 42 councillors. By a notice, dated January 6, 1999, the Municipality was called upon to show cause why it should not be dissolved. On January 11, 1999, a resolution No. 150 was passed by the Municipality authorising its president to file reply and tooppose the notice issued by the State Government, it was stated that on January 19, 1999, hearing was fixed before the Government. A day before that date, i.e. on January 18, 1999, majority of councillors approached this Court by filing SCA No. 429 of 1999 wherein, validity of show cause notice dated January 6, 1999 was challenged. The said petition came up for admission on the next day, i.e. on January 19, 1999, but it was adjourned to January 21, 1999 because record was in Gujarati and English translation was not supplied. On January 21, 1999, the learned AGP stated that another petition was also filed which was to come on Board on the next day. SCA No. 429 of 1999 was, therefore, adjourned to January 22, 1999. Meanwhile, on January 21, 1999, an order dissolving the municipality was already passed. SCA No. 429 of 1999, in these circumstances, became infructuous and it was disposed of accordingly.
6. After the order of dissolution was passed on January 21, 1999, the present petition was filed by the petitioners on January 25, 1999. On January 27, 1999, Rule was issued by the Court. On February 12, 1999, CA No. 967 of 1999 was filed for mandatory relief. The learned single Judge, however, was of the opinion that the main matter deserved to be disposed of finally. Accordingly, by a judgment and order impugned in the present appeal, the petition came to be allowed. In para 14 of the judgment, the learned single Judge granted the following reliefs :
'14. The upshot of the discussion as aforesaid is that this special civil application succeeds. The impugned order dated 21st January 1999 Annexure A to the petition passed by the Urban Development and Urban Housing Department of the Government of Gujarat under the signatures of the Deputy Secretary to the State Government is hereby quashed and set aside and as a consequence thereof, the elected body of the Veraval Patan Joint Municipality stands revived. Whereas the order dated 21st January 1999 was a composite order dissolving the Municipality and also appointing the Deputy Collector, Veraval as Administrator of the said Municipality and whereas this order has been quashed and set aside the Deputy Collector, Veraval who had taken over charge as the Administrator on 21st January 1999 shall forthwith restore the charge back and as aconsequence of it, the elections of the President and the Vice-President both of the said Municipality shall be held immediately in accordance with law and it will be the duty of the concerned officers to take the appropriate steps within a period of 10 days from the date the copy of this order is produced before the concerned authorities. The Rule is made absolute accordingly. No order as to costs.'
7. Being aggrieved by the judgment and order passed by the learned single Judge, two appeals are filed, one by 18 councillors (LPA No. 1180 of 1999) and the other by State of Gujarat (LPA No. 1215 of 1999).
8. We have heard Mr. N. D. Nanavati, senior advocate of Nanavati Advocates (LPA No. 1180 of 1999), Mr. S.N. Shelat, learned Additional Advocate General instructed by Mr. Joshi, AGP (LPA No. 1215 of 1999), on behalf of the appellants, and Mr. K.G. Vakharia, senior advocate instructed by Mr. Tushar Mehta, learned counsel for the original petitioners.
9. Learned counsel for the appellants raised several contentions. It was submitted that learned single Judge has committed an error of law in quashing and setting aside the order of dissolution passed by the State Government. The learned single Judge also committed an error of law apparent on the face of the record in holding that it was necessary to afford an opportunity of hearing to councillors and since no opportunity was afforded, the order passed by the State Government was liable to be set aside. It was urged that though the action of the Government was set aside by the learned single Judge, no ground or reason was recorded by him as to why the impugned order passed by the State Government was contrary to law or did not fall under Section 263 of the Act. It was stated that the president was empowered and authorised by the municipality to submit the view points of the municipality before the Government and accordingly, views were expressed by the president. In absence of any finding that the president had exceeded or abused the powers and/or had committed fraud, an order passed by the Government on the basis of Resolution No. 150 which was unanimously accepted by the municipality could not be set aside. It was further submitted that though prayer of the petitioners was only to quash and set aside the order passed by the State Government under Section 263 of the Act, the learned single Judge has exceeded his jurisdiction in granting larger and wider relief by directing the authorities to hold election of the President and Vice-President within the stipulated time. No such direction could have been issued when no such prayer was made by the petitioners themselves. On all these grounds, it was submitted that the order passed by the learned single Judge is not in consonance with law and deserves to be set aside.
10. Mr. Vekharia, on the other hand, supported the order of the learned single Judge. He submitted that the learned single Judge was satisfied that in the facts and circumstances of the case, the action taken by the Government was not in accordance with law. As no illegality or irregularity was committed by the municipality, no order of dissolution of the Municipality could have been passed under Section 263. It was, therefore, within the jurisdiction of the learned single Judge to set aside such order and accordingly, it was set aside. Counsel further submitted that though the learned single Judge has not discussed in detail the merits of the matter, he was satisfied that even if all the allegations levelled against the municipality were correct, the case would not fall within the mischief of Section 263 of the Act and action of dissolution of Municipality was uncalled for. In the circumstances, the order passed by the State Government was unlawful, illegal and was rightly set aside. The learned single Judge also considered the relevant provisions of the Act as also provisions of the Constitution and exercised the jurisdiction. The Appellate Court may not interfere with exercise of such discretion. Learned counsel further submitted that even though a specific finding is not recorded that the State Government overreached the process of Court, in the surrounding circumstances, such a finding ought to have been recorded. The circumstances were so eloquent that it was clear that only with a view to overreach the process of Court, the action was taken by the State Government and even on that account the order of dissolution deserved to be set aside. Referring to the principles of natural justice and fair play, the learned counsel submitted that even if this Court is of the view that wider observations made by the learned single Judge do not deserve approval by the Division Bench, an appropriate order may be passed upholding the order passed by the learned single Judge that fairness in action required extension of opportunity to majority of members and the final order passed by the learned single Judge does not deserve to be disturbed.
11. Regarding relief granted by the learned single Judge, our attention was invited to Clauses (b) and (c) of para 6 of the prayerclause in the petition and it was submitted that though the above clauses related to interim relief during the pendency and final disposal of the petition, at the time of final hearing a Court can always take into account prayer clause and mould the relief accordingly. Moreover, in Clause (d) of para 6 the petitioners prayed to grant 'such (sic) her and further relief this Court may deem fi(sic) '. Thus, even if specific prayer was not made and the Court was of the opinion that in the light of the facts and circumstances, the petitioners deserved a particular relief, such relief could always be granted by the Court. In the submission of learned counsel, once the order of dissolution of municipality was held to be bad in law. Consequential relief directing the authorities to hold election of President and Vice-president could not be said to be outside the purview of the reliefs which were prayed by the petitioners. Hence, no objection can be raised by the respondents against grant of such relief.
12. Finally, it was submitted that even if his Court is of the view that the order passed by the learned Single Judge is not in consonance of law, since the term of the municipality expires in January 2000, instead of remanding the matter to the learned Single Judge this Court maydecide the case on merits and pass appropriate order. It was submitted that if the appeals will be allowed and the matter will go back before the learned Single Judge, some time will be taken for disposal of SCA and again, the matter may come before a Division Bench. By such process, the term of municipality may be over and the petition may become infructuous.
13. We have given our anxious and thoughtful consideration to the facts and circumstances of the case and we are of the view that the order passed by the learned Single Judge cannot be sustained and both the appeals deserve to be allowed.
14. So far as power of the State Government of dissolution of a municipality under Section 263 of the Act is concerned, the provision is held to be intra vires and constitutional by a Division Bench of this Court in Anjar Municipality v. J.M. Vyas AIR 1999 Guj 298 : (1999 (3) GLR 1892). In that case, constitutional validity of Section 263 was challenged inter alia on the ground that it violated Part IXA of the Constitution of India as inserted by the Constitution (74th Amendment Act), 1993). Negativing the contentions and upholding the validity of Section 263 of the Act, the Division Bench speaking through one of us (C.K. Thakker, Actg. C.J.) observed in paras 15 and 29 thus:
'15. We are unable to uphold the said argument. Looking to the phraseology used in Article 243U, it is clear to us that the said provision saves the power of competent Legislature of dissolution of a Municipality in accordance with law. It is clear from the language of Article 243U which states that every Municipality shall continue for five years from the date appointed for its first meeting 'unless sooner dissolved under any lawforthe time being in force'. It was no doubt contended that the expression 'unless sooner dissolved under any law for the time being in force' would not apply to a Municipality which has come into power after the expiration of one year from the date of commencement of the Constitution (Seventy Fourth Amendment) Act, 1993 as mentioned in Article 243ZF. In our considered opinion, however, the language of Article 243U is clear and unambiguous, it applies to all municipalities Article 243ZF on the other hand is a transitory provision for continuance of existing laws and Municipalities. It, therefore, cannot successfully be contended that the provisions of Article 243U would not apply to the present case. The legal position, in our view, is that ordinarily a municipality shall continue for five years from the date appointed for its first meeting, unless sooner dissolved 'under any law for the time being in force'. Reading Article 243U, it can be said that if a municipality has come into existence in accordance with law, it must be allowed to complete its statutory term of five years, provided it is not subject to dissolution sooner under any law for the time being in force. There is a further safeguard in the nature of Proviso to Clause (1) of Article 243U which enacts thatbefore a municipality is dissolved, it shall be afforded a reasonable opportunity of being heard. From the conjoint reading of Article 243U of the Constitution and Section 263 of the Act, it is amply clear that normally every municipality must be allowed to complete its term of five years. Section 263 of the Act, however, authorises the State Government to take an appropriate action of dissolution on the grounds mentioned therein. Before taking such action, a municipality must be given a reasonable opportunity of being heard. A bald assertion by the learned counsel for the petitioners that there should be no dissolution of municipality notwithstanding misfeasance, non-feasances breach of duties imposed by a statute or failure to perform statutory obligations cannot be countenanced by a court of law in any legal system governed by Rule of Law. Such a view, in our judgment, is neither favoured by the Legislature under Section 263 of the Act nor by Parliament under Article 243U of the Constitution.'
'29. For the reasons recorded hereinabove, in our opinion, the provisions of Section 263 of the Act cannot be held ultra vires, unconstitutional or violative of Article 14, 19, 21 or 243U of the Constitution and the said challenge must fail. Since we are not entering into the correctness or otherwise of the allegations of the petitioners, we dismiss the petition by observing that it is open to the petitioners to take appropriate proceedings in accordance with law, if they are aggrieved by issuance of notice. We may state that as we have refused to decide that question as and when such question is raised before an appropriate forum, itwill be decided on its own merits, without being influenced in any manner by the observations made by us hereinabove. The petition is accordingly dismissed. No costs.'
15. The provisions of Section 263 are thus intra vires and it is open to the State Government to invoke them if a case is made out against a municipality constituted under the Act.
16. In the instant case, as stated above, on January 6, 1999, a notice under Section 263 was issued asking the municipality to show cause why it should not be dissolved. On January 11, 1999, Resolution No. 150 was passed unanimouslyauthorising the president of the municipality to defend the Municipality by opposing the notice. It is true that the said notice was challenged by filing a petition. But it is also equally true that before effective hearing of that petition could take place, an order under Section 263 was passed on January 21, 1999.
17. It was no doubt contended by Mr. Vakharia, drawing our attention to various letters, telegrams and communications to the Government, that much water had flown between January 11 and January 21, 1999. On January 11, 1999, a unanimous resolution was passed by the municipality. The said resolution clearly and unequivocally provided that the president would oppose the notice and proposed action which was sought to be taken against the municipality under Section 263 of the Act. But at a subsequent stage, as alleged by the petitioners, the president was acting contrary to the interest of the municipality in view of the fact that the term of the President was to be over in the meanwhile. She, therefore, ignored the interest of the municipality. Therefore, a meeting was called and it was decided by the majoirty of members to request the Government not to take any action on the report of the President inasmuch as majority of members did not favour dissolution of the municipality and the President was colluding with minority group of members and was inviting dissolution. Our attention was also invited to further fact that a meeting was convened for election of new president after the term of the president was to be over but it was adjourned from time to time. It was contended that adjournments granted by the Deputy Collector were contrary to law and serious objection was raised against it. It was submitted that in the light of subsequent development, a petition was filed challenging show cause notice. It was stated that there were 42 councillors in the municipality, out of which one was disqualified. There were thus 41 members and majority of members were against dissolution. It was clear from the fact that both the petitions i.e. SCA No. 429 of 1999 (earlier one) and SCA 619 of 1999 (present one) were filed by 22 members. Likewise representations which were made to the State Government were also by majority of members. Thus, out of 41 members,22 were the petitioners who did not favour dissolution of the municipality. Hence, even if it is assumed that remaining members were in favour of dissolution, at the most, they were 19 as against 22. It was, therefore, neither open to the Government to ignore the representation made by majority of members nor to refuse to extend opportunity of hearing to them before taking drastic action under Section 263 of the Act. In this connection, attention of the Court was invited by the learned counsel to the impugned order wherein nothing was stated as to what weighed with the State Government for taking the impugned action. As the order did not recite that the conditions laid down in Section 263 were satisfied, it was unlawful and dehors the Act. If, in the light of that fact, the learned Single Judge held that the State Government ought to have extended opportunity of hearing to majority of members, it cannot be said that he has committed an error of law or of jurisdiction which requires interference in LPA. Reliance was placed by the learned counsel of both the sides to some of the decisions.
In Raja Ram v. State of U.P. AIR 1976 SC 732, a municipal board was superseded under Section 30 of the U.P. Municipalities Act, 1916. In Raja Ram, after show cause notice was received by the board, a resolution was passed by the Board authorising the president to submit interim as well as final reply. Initially, the president denied all the allegations and charges levelled against the municipality, but in the final reply, the charges were admitted. On the basis of the final reply, an order was passed superseding the board and that action was challenged. The Apex Court held that once the president was authorised to explain and final reply was submitted by him on the basis of which the action was taken by the Government, it could not be said to be illegal or unlawful.
18. The appellants contended that in the instant case, the president was unanimously authorised by the municipality on January 11, 1999 vide Resolution No. 150 and as stated in the affidavit in reply by the State Government virtually, the charges levelled against the municipality were admitted and the action was taken. The case was thus directly covered by the decision in Raja Ram and the action of the Government was legaland valid.
19. On the other hand, learned counsel for the petitioners submitted that Resolution No. 150 was explicitly clear wherein the president was requested and authorised unanimously to file a reply and to oppose notice of dissolution. If, ignoring the resolution, the president had admitted the charges, she had acted against the interest of the municipality and no action could be taken by the Government on the basis of so-called admission by an outgoing President.
20. It, however, cannot be ignored that no finding was recorded by the learned Single Judge that Resolution No. 150 was not legal and valid or that the president unauthorisedly admitted the allegations on the basis of which the order was passed. In absence of such finding, the learned Single Judge could not have set aside the order of dissolution. Even on merits, no finding was recorded by the learned Single Judge that the allegations levelled against the municipality were not proved and the case would not fall under four comers of Section 263 of the Act. As no such finding was recorded, it was not open to the learned Single Judge to set aside the order of the State Government.
21. According to the learned counsel, the learned Single Judge proceeded to dictate the order only one ground viz. that it was incumbent on the part of the State Government to hear councillors. For that, reference was made to observations made by the learned Single Judge to that effect. In part of para 11, the learned Single Judge stated :
' In the matter of requirement of the notice before dissolution, there is clear provision under Article 243U(1) proviso thereunder that the municipality shall be given a reasonable opportunity of being heard before its dissolution. Apart from this constitutional requirement, under proviso to Article 243(U)(1), Section 263(1) of the Gujarat Municipalities Act itself provides the requirements of opportunity to render explanation. Now, the question arises as to whether such opportunity required to be given to the municipality shall include an opportunity to be given to each of the elected councillors constituting the municipality. The word 'Municipality' itself has been defined in Section 2(14) of the Gujarat Municipalities Act, 1963 whichis as under :
'2 (14) 'Municipality' means a municipality constituted or deemed to be constituted for a municipal borough'.
Section 6(1) of the said Act provides that every municipality shall consist of elected councillors. In view of this provision, the requirement of giving the opportunity to the municipality may or may not include the opportunity to be given to each of the elected councillors. It cannot be said that the elected councillors are not interested parties in the matter of dissolution of the municipality to which they have been elected. Therefore, irrespective of the notice or opportunity to be given by the Government under the Act before passing any order of dissolution or not, when the elected councillors themselves have approached that they may be heard before passing any order on the basis of the show cause notice for dissolution, it cannot be said that they are not required to be heard at all and that they are not the interested parties. It was in the case of S.L. Kapoor v. Jagmohan, reported in AIR 1981 SC 136 wherein the Supreme Court has categorically observed that the status, office and the rights and responsibilities and the expectation of the committee to serve its full term of office certainly creates' sufficient interest in the municipal committee and their loss, if superseded, entails civil consequences so as to justify an insistence upon the observance of the principles of natural justice before an order of supersession is passed. It has been further observed in para 24 of this judgment that when the court is concerned not with a case of actual injustice but with the appearance of injustice, or possible injustice, the principle of requirement is that justice is to be done would still be applicable and it has been further observed that the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. That non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It comes from a person who has denied justice that the person who has been denied justice is not prejudiced. Thus, this judgment recognises the concept of legitimate expectation with any elected members or body tocomplete its full tenure and the interest of the body and its elected members in case such body is sought to be superseded or dissolved and it also proceeds that in such cases, the reasonable opportunity has to be given and the actual adverse order must proceed with an action inspired notice.'
22. Before the learned Single Judge, a decision in Mohanlal v. R.M. Desai, (1968) 9 Guj LR 991 was also cited. The learned Single Judge, however, observed that the ratio laid down in Mohanlal would not apply to the facts of the case on hand. He, therefore, stated:
'Of course, in the instant case, the plea has been taken by the contesting respondents that the notice as had been given had been put before the General Body on 11th January 1999 and therefore, in the present case it cannot be said that the President of the municipality had never put the notice before the General Body had taken the decision by herself to file the reply and it has been pleaded that the president in the facts of this case had the authority of the whole House on the basis of the resolution No. 150 dated 11th January 1999 and therefore, on this factual aspect, the case may be distinguishable, but so far as the right of individual elected member is concerned, and his legitimate expectation in the continuance of the elected body and for enjoyment of its full term for which he has been elected remains in tact more particularly when the correctness of the minutes as recorded itself is disputed and when such basic facts are in dispute and the petitioners had already approached the concerned Deputy Secretary with more than one communications as have been referred to hereinabove, the order should not have been passed without considering the explanation and affording reasonable opportunity to the concerned members of the municipality through their representations and more so when they had held out the entire background, the factual position with regard to the proceedings dated 11th January 1999 had asked for the copies of the documents and it was their case that on the basis of the representation of the President, the matters may not be decided and their representations may also be considered.'
In the opinion of the learned Single Judge, however, as the president was no more interested in continuance of elected body ofthe municipality, it was the duty of the State Government to afford opportunity of hearing to all councillors.
23. In our opinion, the learned Single Judge has committed an error of law in holding that notice to councillors of the municipality was necessary before taking action under Section 263 of the Act.
24. It was, no doubt, submitted by Mr. Vakharia that even if this Court is of the view that as a proposition of law, no such notice was necessary and to that extent, the learned Single Judge was not right in making wider observations, the ultimate order passed by the learned Single Judge may not be disturbed and the observations of the learned Single Judge may be considered as limited to the peculiar facts and circumstances of the present case. We are unable to uphold the argument. In our opinion, when the learned Single Judge has not recorded a finding that Resolution No. 150 was forged or fabricated, the learned Single Judge has committed an error apparent on the face of the record in setting aside the order passed by the Government.
25. It would be profitable in this connection to refer to a decision of the Privy Council in Darayappan v. Fernando (1967) 2 AC 337 : (1967) 2 All E.R. 152 wherein the Privy Council held that the power conferred on the Minister of Local Government to dissolve a Municipal Council under Section 227 (1) of the Municipal Council Ordinance as amended by Act No. 12 of 1959 could be exercised only after observing the principles of audi alteram partem, and as the principle had not been observed, the order was voidable, that is, it could have been avoided in an action by the Municipal Council. But, as the action was filed by the Mayor of the Municipal Council, in his own right and not for and on behalf of the dissolved council, he could not maintain the action.
26. Mr. Shelat also relied upon a judgment of the Supreme Court in Dr. Rashlal Yadav v. State of Bihar, (1994) 5 SCC 267 : (1994 AIR SCW 3329) particularly para 9 of the judgment, wherein the Supreme Court observed as under :
'What emerges from the above discussion is that unless the law expressly or by necessary implication excludes the application of the rule of natural justice, courts willread the said requirement in enactments that are silent and insist on its application even in cases of administrative action having civil consequences. However, in this case, the High Court has having regard to the legislative history, concluded that the deliberate omission of the proviso that existed in Sub-section (7) of Section 10 of the Ordinance (1980) while re-enacting the said sub-section in the Act, unmistakably reveals the legislature's intendment to exclude the rule of giving an opportunity to be heard before the exercise of power of removal. The legislative history leaves nothing to doubt that the legislature did not expect the State Government to seek the incumbent's explanation before exercising the power of removal under the said provision.'
27. A similar view was taken by the Supreme Court in Dr. Umrao Singh Choudhary v. State of M.P., (1994) 4 SCC 328 where the Supreme Court in para 14 stated :
'Section 14 engrafts an elaborate procedure to conduct an enquiry against the Vice-Chancellor and after giving reasonable opportunity, to take action thereon for his removal from the office. Section 52 engrafts an exception thereto. The condition precedent, however, is that the State Government should be satisfied, obviously on objective consideration of the material relevant to the issue, as on record, that the administration of the University cannot be carried out in accordance with the provisions of the Act, without detriment to the interest of the University and for proper administration thereof, to apply in a modified form, excluding the application of Sections 13 and 14 etc. and to issue the notification under Section 52(1). By necessary implication, the application of the principle of natural justice has been excluded. In view of this statutory animation, the contention that the petitioner is entitled to the notice and an opportunity before taking action under Section 52(1) would be self-defeating. The principle of natural justice does not supplant the law, but supplements the law. Its application may be excluded, either expressly or by necessary implication. Section 52 in juxtaposition to Section 14, when considered, the obvious inference would be that the principle of natural justice stands excluded.'
28. On this point, we may also refer 'Judicial Review of Administrative Action' by De Smith (5th Edition, para 8-015) wherein the learned revising authors stated:
'Can the courts supplement the statutory procedures with requirements over and above those specified? For example, can the courts impose a requirement upon a local planning authority to consult on a planning application with neighbours where no such requirement is provided in the Statute? There have been cases where the courts have supplemented a statutory scheme. However, in others, maxim expressio unius alterius has been invoked to avoid doing so. Lord Reid, unusually, expressed an inclination in favour of judicial restraint when he warned against the use by the courts of 'this unusual kind of power' (extending statutory procedure) which he felt should be exercised only when it is 'clear that the statutory procedure is insufficient to achieve justice and that to require additional steps would not frustrate the apparent purpose of the legislation.'
29. The legal position, in our judgment, appears to be fairly well settled and it is that an opportunity of hearing must be afforded to the body i.e. municipality which is to be superseded and not to its councillors. Local authority is a legal person and when action is sought to be taken against the body in accordance with law, principles of natural justice are required to be complied with by issuing notice calling for explanation and affording opportunity of hearing to such authority. It was, therefore, obligatory on the part of the State Government to afford opportunity to the municipality and accordingly, such opportunity was afforded. It is not in dispute that notices were issued to all the councillors and Resolution No. 150 was passed unanimously by all the councillors of the municipality authorising the president to defend the action of the State Government. Thereafter, if any illegality was committed by the president and by taking undue advantage of the fact that she was not to remain in office as president of the municipality and with a view to deprive other persons to become president, she had conceded to the allegations, a finding of fact has to be recorded to the effect that only with a view to deprive other persons of becoming president of the municipality, she invited the order and acted to the detrimentof the municipality. Unless and until specific finding to that effect is recorded, it cannot be said that the order passed or action taken by the Government was not in accordance with law. Learned Single Judge, in our considered opinion, therefore, has committed an error of law in setting aside the order passed by the Government without recording a finding that the stand taken by the outgoing president was mala fide, malicious or against the interest of the municipality.
30. In our view, the learned Single Judge was also not right in observing that since councillors were elected for a period of five years, there was 'legitimate expectation' to continue those councillors for a period of five years and if the said period was to be curtailed, it was necessary for the State Government to afford an opportunity of hearing. According to us, opportunity was required to be given only to the municipality and not to its councillors. Hence, larger observations made by the Learned Single Judge regarding affording of opportunity to the Councillors of the municipality and observance of natural justice are not in consonance with law. No doubt, an attempt was made by Mr. Vakharia that even without approving larger observations, in the facts and circumstances, we may hold that order passed by the learned Single Judge needs no interference. We are afraid, we cannot uphold the contention. Individual councillors have no right of audience or right of hearing in dissolution of municipality. As an individual case also, no such view can be taken. Since this is not the law, in our considered opinion, by doing so, the learned Single Judge has committed an error of law which requires to be corrected.
31. There is one thing more. In the petition, Veraval Patan Joint Municipality was joined as party respondent through Chief Officer who is an administrative head under the Act. The Government had filed a caveat and was very much before the Court. Similarly, contesting respondents were also before the Court. Learned Single Judge, in these circumstances, issued Rule and made it returnable so that the matter could be finally disposed of. At that time, however, learned Single Judge deleted respondents Nos. 4 and 5 - viz. Veraval Patan Joint Municipality and Chunilal Karijibhai Gohel respectively. The matter was thereafterfinally heard and petition was allowed. It is no doubt stated at the Bar that no such prayer was made for deletion of respondents Nos. 4 and 5 by the counsel for the petitioners and the said order was passed by the learned Single Judge as in the opinion of the Court, they were not necessary. Subsequently, however, respondent No. 5 Chunilal Kanjibhai Gohel who was a member of Legislative Assembly, filed a civil application to be joined as a party along with other councillors and the said application was allowed and thus, he remained in the field. But so far as respondent No. 4 -municipality is concerned, it was deleted and the said order remained operative. The above factual position was not disputed by the learned counsel for the contesting respondents.
32. In the present appeals, it was contended by Mr. Nanavati that since municipality was not before the Court, the order directing the municipality to produce relevant record including record relating to Resolution No. 150 could not be called. According to him, such direction could be issued only to the municipality through its administrative head i.e. Chief Officer and as the municipality was not before the Court, no direction could be issued and no finding could be arrived at regarding correctness or otherwise of Resolution No. 150.
33. In our opinion, municipality was necessary party in view of well settled legal position that notice was required to be issued to the municipality and opportunity of hearing was also to be afforded to it if action was to be taken under Section 263 of the Act. Since we are of the view that the learned Single Judge had committed an error of law, while allowing LPAs and remanding the matter to the learned Single Judge, we also set aside the order passed by the learned Single Judge deleting municipality by directing that the municipality will continue to remain as one of the respondents in SCA. The office will issue notice of rule returnable within two weeks. Since the Adminsitrator is already appointed, the notice will now be served on the municipality through Administrator of the municipality. The matter will be decided by the learned Single Judge on merits thereafter.
34. For the foregoing reasons, both LPAs deserve to be allowed and are accordingly allowed. The order passed by the learned Single Judge is set aside. The matter will now go before the learned Single Judge to decide the same in accordance with law. We may repeat that all the respondents in SCA will remain including respondent No. 4 which was ordered to be deleted and respondent No. 5, though ordered to be deleted, was subsequently on the basis of his application, remained as one of the respondents.
35. At the time of entertaining LPAs, in Civil Application No. 10006 of 1999, we had granted interim relief. As stated in the earlier part of the judgment, during the pendency of SCA, administrator was already appointed and he had already taken over charge as such. Learned Single Judge was also conscious of that fact. In the operative part, therefore, a direction was issued as we have already adverted above. In Civil Application, we had granted Interim relief against the order passed by the learned Single Judge and permitted the president and vice-president to attend day to day administration of the municipality. We had, however, restrained them from taking any decision relating to financial matters. That order is operative. It is, however, not disputed by the parties that term of the president and vice-president has come to an end and hence, they have no right to hold those offices. A statement was also made by the learned counsel for the appellants of LPA No. 1180 of 1999 that president and vice-president are no more interested in continuing as such but since the order was passed by the learned Single Judge directing election of president and vice-president, the above interim order was made. Mr Nanavati stated that he has no objection if the administrator is allowed to take charge till pendency of petition before the learned Single Judge or till new election takes place.
36. It is, therefore, directed that as per the order passed by the State Government, administrator will perform his functions and discharge his duties as administrator in pursuance of the order passed by the State Government under Section 263 of the Act till the matter is decided by the learned Single Judge or till new election takes place. If any formal action is required to be taken for that purpose, the State Government will pass an appropriate order. We may,however, clarify that even if fresh order is passed, it will not be necessary to file fresh petition against such order and SCA No. 619 of 1999 will be decided by the learned Single Judge.
37. We may state that in view of the fact that the learned Single Judge has not recorded findings on merits and we are upturning that part of the order in which the learned Single Judge has held that individual notices were necessary, LPA has been allowed to that extent. Other considerations on merits are left untouched. It is open to the parties to raise all contentions before the learned Single Judge and the learned Single Judge will decide them in accordance with law without being influenced by the observations made by us hereinabove.
38. Since the matter pertains to dissolution of municipality and the term of the municipality is likely to be over within a short period, office will place the matter before the learned Single Judge taking up such matters immediately after service of notice to the municipality. The learned Single Judge will decide it as expeditiously as possible, after rule is served to the municipality. Both the appeals are accordingly allowed. In the facts and circumstances of the case, there shall be no order as to costs.