Judgment:
Abhilasha Kumari, J.
1. Rule. Mr. Jaswant K. Shah, learned Assistant Government Pleader, waives service of Rule on behalf of the respondent No. 1. Mr. H.A. Dave, learned Counsel, waives service of Rule on behalf of the respondent No. 2. In the facts and circumstances of the case and with the consent of the learned Counsel for the parties, the matter is heard and disposed of finally today.
2. This petition, under Article 226 of the Constitution of India, has been filed with a prayer to issue a writ of Mandamus or any other appropriate writ, order or direction to quash and set aside the order dated 8-4-2008 rendered by the respondent No. 1, i.e. the District Collector, Rajkot, whereby, he has restrained the petitioners from taking part in me meetings of the General as well as Special Board of the Morbi Nagarpalika pending the decision of the case regarding disqualification of the petitioners under the provisions of the Gujarat Provision for Disqualification of Members of Local Authorities for Defection Act, 1986.
3. The brief facts of the case, emerging from a perusal of the averments made in the writ petition, are that the petitioners (four in number) were elected as members of the Morbi Nagarpalika in the general election held in the year 2005. It will be pertinent to notice the brief background of the case. Earlier, Petition No. 14 of 2007 came to be filed against the petitioners under the provisions of the Gujarat Provision for Disqualification of Members of Local Authorities for Defection Act, 1986 ('the Defection Act' for short). The petitioners filed an application pointing out the objections as well as the judgment of this Court and prayed to reject the said petition. This application of the petitioners was rejected vide order dated 14-3-2007. Being aggrieved by the order dated 14-3-2007 of the Competent Authority, the petitioners filed Special Civil Application No. 5343 of 2008. According to the averments made in the petition, the Court permitted the petitioners to apply for adjournment before the Competent Authority in the proceedings emanating from Petition No. 14 of 2007. However, no interim relief was granted to the petitioners. The request of the petitioners for grant of adjournment was not acceded to by the Competent Authority, and therefore, the petitioners filed Letters Patent Appeal No. 320 of 2008 praying for a stay on further proceedings before the Competent Authority under the Defection Act. It transpires from the present petition that the Division Bench of this Court passed an order dated 3-4-2008, staying further proceedings, as well as the order dated 14-3-2008 made by the Competent Authority under the Defection Act, and subsequently, the Letters Patent Appeal was disposed of vide order dated 16-4-2008 with a direction that the writ petition, which is pending before the learned single Judge, be heard on 25-4-2008, and the interim order should continue till such date. According to the averments made in the petition, pending these proceedings, the Collector, Rajkot, made an ex parte order preventing the petitioners from participating in the meeting of the General Board of the Morbi Nagarpalika which was scheduled for 24-3-2008. The petitioners filed a reply before the Collector pointing out various orders of this Court and submitting that the Collector has no jurisdiction to make any order under Section 258 of the Gujarat Municipalities Act, 1963 ('the Act' for short). It is stated that the Collector, vide impugned order dated 8-4-2008, though has held that he has no authority to exercise jurisdiction under Section 258 of the Act, has still made an order preventing the petitioners from participating in the meeting of the Morbi Nagarpalika, necessitating the filing of the present petition.
4. Mr. H.A. Dave, learned Counsel for the respondent No. 2, has submitted the affidavit-in-reply filed on behalf of the said respondent, inter alia denying the averments made in the petition. The same is taken on the record of the case.
5. I have heard Mr. Naveen K. Pahwa, learned Counsel for the petitioners, Mr. Jaswant K. Shah, learned Assistant Government Pleader, for the respondent No. 1 and Mr. H.A. Dave, learned Counsel for the respondent No. 2 and have gone through the averments made in the petition as well as the documents annexed therewith.
6. Mr. Naveen K. Pahwa, learned Counsel for the petitioners, has submitted that the Collector has no jurisdiction to pass the impugned order under Section 258 of the Act after he has himself come to a conclusion that he has no authority to do so under the said provision of law. It is submitted by the learned Counsel for the petitioner that the respondent No. 2 had filed an application with a prayer to restrain the petitioners from participating in the General and Special Board Meetings of the Morbi Nagarpalika and from misusing their powers since the applications for disqualification of the petitioners were pending before the Competent Authority under the Defection Act. According to Mr. Naveen K. Pahwa, the Collector could not have exercised the powers under the provisions of Section 258 of the Act, while dealing with this application of the respondent No. 2. He has brought to the notice of this Court, order dated 24-3-2008 of the Collector preventing the petitioners from participating in the General Board Meeting of the said Nagarpalika. The learned Counsel for the petitioners has submitted that a perusal of this order would make it evident that the Collector has exercised powers under Section 258(1) of the Act. It is further submitted that the impugned order dated 8-4-2008 has also been passed by the Collector under the provisions of Section 258(1) of the Act, which could not have been done, since this provision of law does not empower the Collector to deal with matters under the Defection Act. It is emphasized by the learned Counsel for the petitioners that while passing the impugned order dated 8-4-2008, the Collector has himself concluded that he has no competence or jurisdiction to exercise powers under Section 258 of the Act in respect of the rights of the petitioners to participate in the meetings of the Nagarpalika, pending the decision in the proceedings before the Competent Authority under the Defection Act. It is argued by the learned Counsel for the petitioners that having come to the conclusion that he has no jurisdiction to exercise powers under Section 258 of the Act, the Collector becomes functus officio, and he therefore, cannot pass any orders in the proceedings, as has been done by him, by restraining the petitioners from taking part in the meetings of the Nagarpalika.
7. It is submitted that on one hand, the Collector has admitted that he has no power under the said provision of law and on the other, he has proceeded to pass orders which are beyond the jurisdiction vested in him under Section 258 of the Act, and therefore, the impugned order deserves to be quashed and set aside. It is further submitted by the learned Counsel for the petitioners that the Collector has referred to an interim order in Letters Patent Appeal No. 139 of 2008, which has no bearing on the case of the petitioners since neither the petitioners nor the respondent No. 2 were parties to the said proceedings. It is urged by the learned Counsel for the petitioners that the Division Bench of this Court has already granted an interim order in favour of the petitioners, staying further proceedings before the Competent Authority under the Defection Act, and this interim order is in force as of today. It is further submitted by Mr. Naveen K. Pahwa, that the Collector is exercising statutory powers and after holding that he has no power under Section 258(1) of the Act, he cannot pass any further orders in the matter. In support of the contention that the Collector cannot go beyond the provisions of the statute since he does not have discretionary powers, the learned Counsel for the petitioners has placed reliance upon State of Orissa v. Madan Gopal Rungta and G.E. Power Controls India and Ors. v. S. Lakshmipathy and Ors. 2005 (11) SCC 509. The learned Counsel for the petitioners has emphasized that the impugned order of the Collector runs contrary to the orders of the High Court in favour of the petitioners whereby the proceedings before the Competent Authority have been stayed and the said interim order is in operation as of today.
8. Mr. H.A. Dave, learned Counsel for the respondent No. 2, has raised a preliminary objection that the petitioners have an alternative remedy available to them under the provisions of Section 258(3) of the Act. On merits, it has been submitted that the application filed by the respondent No. 2 to prevent the petitioners from participating in the General and Special Board Meetings of Morbi Nagarpalika and to restrain them from misusing their powers was filed before the Collector, but not under any specific provision of law. It is submitted by the learned Counsel for the respondent No. 2 that under Section 258(1) of the Act, the Collector has ample powers to pass 'any order' in the interest of the Municipality. It is further submitted that under the provisions of Section 6 of the Defection Act, the Competent Authority can only inquire into the matter pertaining to disqualification but cannot pass a restraint order and that power is vested to the Collector by virtue of the provisions of Section 258(1) of the Act. It is elaborated that the Collector can look into a matter arising out of 'any order or any resolution' passed by the Municipality under the provisions of Section 258(1) of the Act. The learned Counsel for the respondent No. 2 has sought to canvas the proposition that under the provisions of Section 258(1) of the Act, it is the duty of the Collector to see that no resolution is passed in a meeting wherein the person concerned is disqualified and that the provisions of Section 258(1) of the Act confer supervisory powers over the Municipality, and the Collector is duty bound to prohibit or restrain any person or action of the Municipality if he finds that such action might cause injury to the Municipality or to the public at large. According to Mr. H.A. Dave, the Collector, while passing the impugned order restraining the petitioners from participating in the meetings of the General and Special Board of the Nagarpalika, has rightly observed that if the petitioners are not restrained, their disqualification, if any, would relate back to the date of defection and all resolutions passed in the meetings attended by the petitioners will become null and void, and therefore, the petitioners have been restrained from attending the meetings of the General and Special Board of the Nagarpalika. According to Mr. H.A. Dave, Section 258(1) of the Act empowers the Collector to look into the matter, since this provision of law confers wide powers upon the Collector which can be exercised by him by passing 'any order' including an order pertaining to disqualification proceedings pending under the Defection Act, in the interest of the Municipality. It is further argued by the learned Counsel for the respondent No. 2 that the bar of jurisdiction of the Civil Court contained in Section 7 of the Defection Act does not apply to the provisions of Section 258(1) of the Act, and therefore, the Collector has rightly passed the impugned order.
9. Mr. Jaswant K. Shah, learned Assistant Government Pleader for the respondent No. 1 has supported the impugned order of the Collector and has submitted that he adopts the arguments advanced by the learned Counsel for the respondent No. 2.
10. I have heard Mr. Naveen K. Pahwa, learned Counsel for the petitioners, Mr. Jaswant K. Shah, learned Assistant Government Pleader for the respondent No. 1 and Mr. H.A. Dave, learned Counsel for the respondent No. 2 and have perused the averments made in the petition as well as the documents annexed thereto.
11. The question which arises for the determination of this Court is whether the Collector could have passed an order restraining the petitioner from attending the meetings of the General and Special Boards of the Morbi Nagarpalika, in exercise of powers under Section 258 of the Act, pending the disqualification proceedings instituted against the petitioners under the Defection Act.
12. To throw some light upon this question, it would be fruitful to advert to the relevant provision of law, which is reproduced hereinbelow:
258. (1) If, in the opinion of the Collector, the execution of any order or resolution of a Municipality, or the doing of anything which is about to be done or is being done by or on behalf of a Municipality, is causing or is likely to cause injury or annoyance to the public or to lead to a breach of the peace or is unlawful, he may by order in writing under his signature suspend the execution or prohibit the doing thereof and where the execution of any work in pursuance of the order or resolution of the Municipality is already commenced or completed direct the Municipality to restore the position in which it was before the commencement of the work.
(2) When the Collector makes any order under this Section he shall forthwith forward to the Municipality affected thereby a copy of the order with a statement of the reasons for making it and also submit a report to the State Government along with copies of such order and statement.
(3) Against the order made by the Collector under Sub-section (1) the Municipality may prefer an appeal to the State Government within thirty days from the date on which it receives a copy of the order. The State Government may on such appeal being preferred rescind the order or may revise or modify or confirm the order or direct that the order shall continue to be in force, with or without modification, permanently or for such period as it may specify:
Provided that the order shall not be revised, modified or confirmed by the State Government without giving the Municipality reasonable opportunity of showing cause against the order.
Section 258 is to be found in Chapter-XVI of the Gujarat Municipalities Act, 1963, under the heading of 'Control'. Section 257 of the Act deals with the power of inspection and supervision of the Collector. Section 258 of the Act deals with the powers of the Collector to suspend the execution of orders/resolutions of the Municipalities which are causing or likely to cause injury or annoyance to the public or to lead to a breach of peace or are unlawful.
13. The scope of the powers of the Collector, as conferred by Section 258(1) of the Act has been discussed in detail by a Full Bench of this Court in Parshottambhai G. Chavda v. State of Gujarat : 1998 (1) GLH 519 (FB). The relevant extracts of the judgment are reproduced hereinbelow:
6. The analysis of Section 258 would resolve that:
If in the opinion of the Collector:
(i) the execution of any order of the Municipality or;
(ii) the execution of the Resolution of the Municipality or;
(iii) doing of anything which is about to be done by the Municipality or;
(iv) doing of anything which is being done by the Municipality;
(a) is causing or;
(b) likely to cause injury or annoyance to the public or;
(c) is likely to lead breach of peace or;
(d) is unlawful
the Collector may take any of the following actions:
(A) He may suspend the order or Resolution;
(B) Prohibit doing of anything which is about to be done or being done;
(C) If the work is already commenced or completed he may direct the Municipality to restore the position which was there before the commencement of their doing.
7. Thus, Section 258(1) to a larger extent deals with arresting or stoppage of some work which is in process of being done. The suspension or prohibition presupposes obviously that something remains to be done which requires to be arrested before it reaches to its culmination. The last part pointed out in Para (C) however deals with a situation where thing is completed before the Collector can intervene or arrest, its doing or progress. He is in such a completed matter is competent to direct the restoration of the position ante. Thus, Section 258 of the Gujarat Municipalities Act provides for both the situations, namely, when the action is not taken or is incomplete and when the action is already taken and is over, In case of U.P. Act an order or prohibition can be issued by the State Government preventing the Municipality from taking that act or for completing it while in case of Gujarat Act, when the action is over, complete, or the work is executed the Collector has a power to direct restoration of the position ante. Thus, the power under Section 258(1) of the Gujarat Act is wide covering both the situations. An appropriate action can be taken by the Collector either by preventing the Municipality from acting or doing the act and also by ordering restoration.
From a perusal of the provisions of Section 258 of the Act, in the light of the Full Bench decision of this Court in Parshottambhai G. Chavda v. State of Gujarat (supra), it is evident that Section 258 deals with the execution of any order or resolution of the Municipality or any action which has been done or which is about to be done by the Municipality, which is causing or likely to cause injury, or annoyance to the public or is likely to lead to a breach of peace or is unlawful. The ambit and scope of Section 258 of the Act has been clarified in the judgment of the Full Bench and a perusal of the above-quoted extract makes it very clear that this Section deals with the power of the Collector with regard to an order, resolution or action of the Municipality qua the public which is likely to lead either to a breach of peace or is unlawful. To read into the provisions of Section 258 of the Act, the power to pass an order under the Defection Act, would amount to re-writing this provision of law and incorporating therein, something which is neither inherent thereto nor intended by the Legislature. Such an interpretation, in my view, is not permissible. The ingredients of Section 258 of the Act have been enumerated in Para 6 of the Full Bench judgment. The power of the Collector under this Section extends only to the situations enumerated therein and not any further. The submission of the learned Counsel for the respondent No. 2 that the Collector has ample powers to pass 'any order' in the interest of the Municipality, including an order regarding a matter pending under the Defection Act, cannot be sustained. The ambit and scope of the powers vested in the Collector under Section 258 of the Act have been delineated by the Full Bench in Parshottambhai G. Chavda v. State of Gujarat (supra) and the Collector cannot travel beyond the jurisdiction vested in him. The argument of the learned Counsel for the respondent No. 2 that these powers are unlimited and are of a supervisory nature, enabling the Collector to pass orders under a Special Act such as the Defection Act, is therefore, not worthy of acceptance.
14. The contention of the learned Counsel for the respondent No. 2 that under the provision of Section 6 of the Defection Act, the Competent Authority can merely inquire into the matter pertaining to disqualification but cannot pass an order of restraint, and therefore, the power to pass a restraint order is vested in the Collector, by virtue of the provisions of Section 258(1) of the Act, is not only unsustainable but legally untenable as well. When the Legislature, in its wisdom, has thought it necessary to enact a separate, distinct and special statute, namely the Gujarat Provision for Disqualification of Members of Local Authorities for Defection Act, 1986, it cannot be contended that the power of the Collector under Section 258(1) of the Act is analogous to, or runs parallel with the power vested in the Competent Authority under the Defection Act.
15. Section 6 of the Defection Act deals with the decision on the question as to disqualification, on the ground of defection and provides for the designation of a Competent Authority by the State Government, to look into and decide the matter. It is an admitted position that the proceedings under the Defection Act in respect of the petitioners are pending before the Competent Authority. It is also an admitted position that there is an interim order of the Division Bench of the High Court in favour of the petitioners, which is still in operation. In my considered view, the Collector could not have exercised power under the provisions of Section 258 of the Act, while dealing with the application of the respondent No. 2 and could not have passed the impugned order restraining the petitioners from participating in the General and Special Board meetings of the Morbi Nagarpalika, especially when the proceedings under the Defection Act against the petitioners are pending before the Competent Authority. A bare reading of the provisions of Section 258(1) of the Act make it very clear that this provision does not empower the Collector to deal with the matters under the Defection Act. When the Legislature has enacted a special statute, i.e. the Defection Act, wherein a designated Competent Authority has been empowered to take a decision on the question as to the disqualification on the ground of defection, the Collector has no jurisdiction to exercise power under Section 258(1) of the Act, in this regard.
16. A glaring aspect of this case is that the Collector, himself, is very conscious of the fact that he is not vested with power or authority under Section 258(1) of the Act, to decide the application of the respondent No. 2. He has, in terms, stated so in the impugned order dated 8-4-2008. However, having said so, the Collector has done a volte-face and has proceeded to pass an order restraining the petitioners from participating in the General and Special Board meetings of the Morbi Nagarpalika. The reasons for passing this order, as recorded in the order dated 8-4-2008, are that, if the petitioners are not restrained from attending the meetings of the said Nagarpalika, then all resolutions passed in the meetings attended by the petitioners will be rendered null and void, if at a later date, the petitioners are held to be disqualified. Another reason assigned is an order dated 14-2-2008 passed in Letters Patent Appeal No. 139 of 2008. It has been specifically submitted by Mr. Naveen K. Pahwa, learned Counsel for the petitioners that this order has nothing to do with either the petitioners nor the present respondent No. 2, since neither of them were parties in that case and has no bearing upon the matter. Mr. H.A. Dave, learned Counsel for the respondent No. 2 and the learned Assistant Government Pleader, have been unable to controvert this position. These reasons are, on the face of it, unconvincing and flimsy. It is also undisputed that an interim order of the Division Bench is in operation, in favour of the petitioners in these very proceedings, under the Defection Act. This being the position, the impugned order of the Collector clearly flies in die face of the order of the High Court, and therefore, cannot be allowed to stand.
17. Once, the Collector has himself come to a conclusion that he is not vested with power to decide the application of the respondent No. 2 under the provisions of Section 258(1) of the Act, he becomes functus-officio and any order passed by him thereafter, is nothing but a nullity. In any event, had the Collector not himself recorded that he lacks jurisdiction, the same result would ensue, since, as per the statute, he has no jurisdiction to pass the impugned order.
18. Section 7 of the Defection Act contains a bar of jurisdiction in matters pertaining to this Act and reads as under:
No Civil Court and no other authority or officer under the Bombay Provincial Municipal Corporations Act, 1949 (Bom. 59 of 1949) or the Gujarat Panchayats Act, 1961 (Guj. 6 of 1962) or the Gujarat Municipalities Act, 1963 (Guj. 34 of 1964) shall have any jurisdiction to deal with or decide any question as to disqualification of a Councillor or a member on the ground of defection or as to any matter connected therewith, which the Chief Secretary to the State Government or an Officer not below the rank of a Secretary of any Department of the State Government designated by the State Government in this behalf is empowered to deal with or decide under Section 6 and no injunction shall be granted by any civil Court or any authority or officer in respect of any action taken or to be taken by the Chief Secretary or the designated officer in pursuance of any power conferred on him by or under this Act.
It has been specifically stated in Section 7 of the Defection Act mat no audiority or officer under the statute mentioned therein, including the Gujarat Municipalities Act, 1963 (Gujarat Act 34 of 1964) shall have any jurisdiction to deal with or decide any question as to disqualification of a Councillor or a member on the ground of defection. Admittedly, the application filed by the respondent No. 2 has been decided by the Collector under the provisions of Section 258(1) of the Act, which is barred by the provisions of Section 7 of the Defection Act. Not only does Section 7 contains a bar to the jurisdiction of the Civil Courts or any other authorities or officers to decide any question as to the disqualification of a Councillor or member on the ground of defection, but this bar also extends to 'any other matter connected therewith'. The application of the respondent No. 2 has been filed with a prayer to restrain the petitioners from attending the meetings of the General and Special Board of Morbi Nagarpalika pending the decision of the case regarding disqualification of the petitioners under the provisions of the Defection Act. It is this application that has been decided by the Collector vide the impugned order. There can be no doubt, whatsoever, that this is a matter connected with the disqualification of the petitioners on the ground of defection, and therefore, the Collector has no power to pass the impugned order, in view of the provisions of Section 7 of the Defection Act. By passing the impugned order, the Collector has assumed upon himself, jurisdiction which is not vested in him by law but is vested with the Competent Authority under the Defection Act. The impugned order has been passed by the Collector, exceeding his jurisdiction, and that too, with full knowledge of the lack of competence to do so. It is a settled position of law that an order passed without jurisdiction is null and void and cannot be permitted to stand.
19. As has already been stated hereinabove, Section 258(1) of the Act does not clothe the Collector with supervisory powers so as to enable him to pass an order in matters pertaining to the Defection Act. The words 'any order' occurring in Section 258(1) of the Act cannot be read out of context, but have to be read in consonance with the provisions of the Section, and in turn, the Section has to be read in consonance with the scheme of the Act.
20. In the ultimate analysis, and for the reasons stated hereinabove, the only conclusion that can be arrived at is that the impugned order dated 8-4-2008 passed by the Collector is illegal, and void ab-initio, having been passed without jurisdiction.
21. The writ petition, is therefore, allowed. The order dated 8-4-2008 passed by the Collector, District: Rajkot, is quashed and set aside. Rule is made absolute. There shall be no orders as to costs.
22. At this stage, Mr. H.A. Dave, learned Counsel for the respondent No. 2, prays that the operation of this judgment be kept in abeyance for some time. Since, this Court has come to the conclusion that the impugned order is a nullity, the prayer made by the learned Counsel for the respondent No. 2 cannot be acceded to.