Patel Chandrikaben Dineshbhai and ors. Vs. Director of Municipalities and anr. - Court Judgment

Excerpt:
civil - misconduct - articles 226, 243q and 243r of constitution of india and sections 37, 38 and 70 of gujarat municipalities act, 1964 - petitioner members of municipal council - respondent alleged that petitioner liable for loss caused to council in matter of construction of work and show cause notice issued - petitioner challenged action initiated by respondent under sections 37, 38 and 70 - statutes provide for taking action against elected body of members - authorities have powers under act to initiate action - elected members not entitled to seek protection against action proposed or commenced in matter of holding enquiry into alleged misconduct - petition dismissed. - - (2) if after giving the councillor concerned a reasonable opportunity for showing cause to the contrary, an officer authorised by the state government is satisfied that the councillor was party to the misapplication of any fund of the municipality or that the misapplication is a direct consequence of misconduct or gross neglect on his part, the officer so authorised shall by an order in writing direct such councillor to pay to the municipality before a fixed date, the amount required to be reimbursed to it for such misapplication/ (3) if the amount is not so paid, it shall be recovered as an arrear of land revenue and credited to the fund of the municipality. in the facts and circumstances of this case, the decision of this court, as referred to above, on which reliance has been placed by the learned counsel for the petitioners, have no application for the simple reason that it is clearly given out by the learned counsel for the petitioners himself that in those cases final orders had already been passed when the matters were challenged before the court. 6. the learned counsel for the petitioners then submitted that in view of 73rd and 74-th amendment of the constitution, the petitioners have acquired the status of constitutional functionaries and, therefore, the executive officers like that of director of municipalities or the collector could not take any action against the petitioners. if there is a statute which provides for taking action against the elected members of the body like municipalities and the authorities invested with such powers under the act proceed to initiate appropriate action in accordance with those provisions, the elected members are not entitled to seek protection against such action proposed or commenced in the matter of holding an inquiry into the alleged misconduct or otherwise.orderm.r. calla, j.1. heard learned counsel.2. the petitioners herein claim to be elected members of the mehsana nagar palika. it is given out by the learned counsel for the petitioners that they were elected in the year 1996 as members of the municipal council and they also became members of the town planning committee. it is also given out that the term of the petitioners as members of the town planning committee had expired on 31-3-98. they seek to challenge the initiation of action under section 37 section 38 and section 70 of the gujarat municipalities act, against them.3. while arguing this petition, the learned counsel for the petitioners has referred to the document annexure 'b' dt. 24-2-99 which is a show cause notice issued by the director of municipalities act calling upon the petitioners to show cause as to why they should not be removed from the membership of the municipal council. this show cause notice also indicates that they were to be personally heard on 8-3-99. this show cause notice was replied by the petitioners on 8-4-99 and a copy of this reply dt. 8-4-99 has been placed on record as annexure 'c'. it is admitted before this court by the learned counsel for the petitioners that after filing of the reply dt. 8-4-99, no order has been passed against any of the petitioners removing them from the membership of the municipal council. however, a grievance has been raised that although no order has been passed removing them from the membership of the municipal council, an order has been passed by the director of municipalities on 23-4-99 and that order gives another cause of action to the petitioners for challenging the same inasmuch as the director of municipalities has ordered that a loss has been caused to the council to the extent of rs. 1,23,000/- in the matter of certain construction work for which the chairman and the members were jointly and severally liable and, therefore, the director had taken a decision to start the proceedings under section 70 of the gujarat municipalities act against the petitioners and by the same order dt. 23-4-99, the copy of which has been placed on record as annexure 'd', the collector, mehsana has also been asked to take action in accordance with section 38 of the gujarat municipalities act. the relevant provisions of section 37, section 38 and section 70 of the gujarat municipalities act are reproduced as under:-section 37(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 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 duties under this act.(2) a president or vice-president removed under sub-section (i) shall not be eligible for re-election as a president or vice president during the remainder of the term of the municipality. 37a. notwithstanding that a councilor has resigned his office under section 35, if it appears to the state government that the councillor during the period he held office as a councillor has been guilty of misconduct in the discharge of his duties or of any disgraceful conduct, the state government may disqualify him from becoming a councillor or a councillor or member of any other local authority for a period of five years from the date of its order : provided that no action against the councillor so resigned shall be taken under this section after the expiry of one year from the date of his resignation and without giving him a reasonable opportunity of being heard.''38( 1) if any councillor during the term for which he has been elected or nominated -- (a) become subject to any disqualification specified in section 11, or(b) acts as a councillor in any matter -- (i) in which he has directly or indirectly, by himself or his partner, any such share or interest as is described in clauses (i), (ii), (iii), (v) or (vii) of sub-section (3) of section 11, whatever may be the value of such share or interest, or(ii) in which he is professionally interested on behalf of a principal or other person, or (c) is professionally interested or engaged in any case for or against the municipality, or(d) departs beyond the limits of the state with the declared or known intention of absenting himself continuously for a period exceeding six months,he shall subject to the provisions of subsection (2) be disabled from continuing to be a councillor and his office shall become vacant. (2) in every case, the authority competent to decide whether a vacancy has arisen shall be the collector. the collector may give his decision either on an application made to him by any person or on his own motion after giving the councillor a reasonable opportunity of being heard,(3) until the collector decides under sub-section (2) that the vacancy has arisen, the councillor shall not be disabled under sub-section (1) from counting to be a councillor.(4) any person aggrieved by the decision of the collector may, within a period of fifteen days from date of such decision, appeal to the state government and the orders passed by the state government in such appeal shall be final.''70(1) every councillor shall be personally liable for the misapplication of any fund to which he shall have been a party, or which shall have happened through or been facilitated by gross neglect of his duty as a councillor : provided that no councillor shall be personally liable in respect of any contract or agreement made, or for any expense incurred by, or on behalf of the municipality, the funds at the disposal of each municipality shall be liable for, and be charged with, all costs in respect of any contract or agreement and all such expenses.(2) if after giving the councillor concerned a reasonable opportunity for showing cause to the contrary, an officer authorised by the state government is satisfied that the councillor was party to the misapplication of any fund of the municipality or that the misapplication is a direct consequence of misconduct or gross neglect on his part, the officer so authorised shall by an order in writing direct such councillor to pay to the municipality before a fixed date, the amount required to be reimbursed to it for such misapplication/(3) if the amount is not so paid, it shall be recovered as an arrear of land revenue and credited to the fund of the municipality.(4) any person aggrieved by the decision or action of the officer so authorised may within one month from the date of such decision or action apply to the district court for redressal of his grievance and that court after taking such evidence as it thinks necessary may confirm, modify or set aside the order and also make such order as to costs as it thinks proper in the circumstances.' 4. the learned counsel for the petitioners has also referred to order annexure 'e' dt. 10-5-99, which has been passed by the collector, mehsana whereby the collector, mehsana had called upon the petitioners for personal hearing and present their case on 18-5-99. it is submitted by the learned counsel for the petitioners that a reply was also filed on 18-5-99 before the concerned collector and it is also admitted before this court that thereafter, the collector has not passed any order. the learned counsel for the petitioners has also placed reliance on a decision of this court in the case of chimanbhai r. patel v. anand municipality, reported in (1983) 1 guj lr 67 : (air 1983 gujarat 136) and in the case of satishkumar r. ahir v. director of municipalities, reported in (1998) 1 guj lh 143 and it has been further pointed out by the learned counsel for the petitioners that this decision of the single judge, reported in (1998) 1 guj lh 143 (supra) has been confirmed by the division bench in the case of p. d. gandavi v. satishkumar rameshchandra, reported in (1998) 1 guj lh 301: (1998 aihc 1718).5. having heard learned counsel for the petitioners at length and havinggone through the three orders, copies of which are on record at annexure 'b', 'd' and 'e', this court finds that annexure 'b' dt. 24-2-99 was only a show cause notice to which the petitioners have already filed a reply, but no final order has been passed uptil now against the petitioners. so far as the order annexure 'd' dt. 23-4-99 is concerned, it is clear from the reading of the operative part of this order that the director of municipalities has only taken a decision to start the proceedings under section 70 against the petitioners and it is also clear that so far even a notice under section 70(2) has not been given because the proceedings under section 70 have been directed to be started only now and as and when these proceedings under section 70 commence, the notice under section 70(2) will be given and the appropriate orders will then be passed under section 70 with regard to the petitioners. the next order i.e. annexure 'e' dt. 10-5-99 as passed by the collector, mehsana is again an order by which the petitioners were called upon to appear and answer the notice on 18-5-99 to which the petitioners have also filed a reply on 18-5-99 and even thereafter no order whatsoever has been passed to the prejudice of the petitioners. as on today, the status of the petitioners as members of the municipal council remains intact. the three orders, to which reference has been made, are only the orders in the nature of giving show cause notice or starting proceedings under section 70 and in the opinion of this court, no final order adverse to the petitioners has been passed uptill now so as to give any legitimate cause of action to the petitioners to rush to this court and challenge the show cause notices or the decision to start the proceedings under section 70 of the gujarat municipalities act. in the facts and circumstances of this case, the decision of this court, as referred to above, on which reliance has been placed by the learned counsel for the petitioners, have no application for the simple reason that it is clearly given out by the learned counsel for the petitioners himself that in those cases final orders had already been passed when the matters were challenged before the court.6. the learned counsel for the petitioners then submitted that in view of 73rd and 74-th amendment of the constitution, the petitioners have acquired the status of constitutional functionaries and, therefore, the executive officers like that of director of municipalities or the collector could not take any action against the petitioners. it may be observed that the director of municipalities and the collector have to discharge their functions and in this case also the show cause notices have been issued with reference to the statutory powers under the gujarat municipalities act. it is not a case of plain and simple removal as such so as to give rise to the nature of the argument as has been advanced by the learned counsel for the petitioners to claim the protection as a constitutional functionary. if there is a statute which provides for taking action against the elected members of the body like municipalities and the authorities invested with such powers under the act proceed to initiate appropriate action in accordance with those provisions, the elected members are not entitled to seek protection against such action proposed or commenced in the matter of holding an inquiry into the alleged misconduct or otherwise.7. for the reasons, as aforesaid, this court does not find any merit in any of the submissions raised on behalf of the petitioners. this special civil application, therefore, cannot be entertained at this stage when no final orders have been passed in any of the matters for which the grievance has been raised. this special civil application is, therefore, dismissed.

Judgment:
ORDER

M.R. Calla, J.

1. Heard learned counsel.

2. The petitioners herein claim to be elected members of the Mehsana Nagar Palika. It is given out by the learned counsel for the petitioners that they were elected in the year 1996 as members of the Municipal Council and they also became members of the Town Planning Committee. It is also given out that the term of the petitioners as members of the Town Planning Committee had expired on 31-3-98. They seek to challenge the initiation of action under Section 37 Section 38 and Section 70 of the Gujarat Municipalities Act, against them.

3. While arguing this petition, the learned counsel for the petitioners has referred to the document Annexure 'B' dt. 24-2-99 which is a show cause notice issued by the Director of Municipalities Act calling upon the petitioners to show cause as to why they should not be removed from the membership of the Municipal Council. This show cause notice also indicates that they were to be personally heard on 8-3-99. This show cause notice was replied by the petitioners on 8-4-99 and a copy of this reply dt. 8-4-99 has been placed on record as Annexure 'C'. It is admitted before this Court by the learned counsel for the petitioners that after filing of the reply dt. 8-4-99, no order has been passed against any of the petitioners removing them from the membership of the Municipal Council. However, a grievance has been raised that although no order has been passed removing them from the membership of the Municipal Council, an order has been passed by the Director of Municipalities on 23-4-99 and that order gives another cause of action to the petitioners for challenging the same inasmuch as the Director of Municipalities has ordered that a loss has been caused to the council to the extent of Rs. 1,23,000/- in the matter of certain construction work for which the Chairman and the members were jointly and severally liable and, therefore, the Director had taken a decision to start the proceedings under Section 70 of the Gujarat Municipalities Act against the petitioners and by the same order dt. 23-4-99, the copy of which has been placed on record as Annexure 'D', the Collector, Mehsana has also been asked to take action in accordance with Section 38 of the Gujarat Municipalities Act. The relevant provisions of Section 37, Section 38 and Section 70 of the Gujarat Municipalities Act are reproduced as under:-

Section 37(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 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 duties under this Act.

(2) A president or vice-president removed under Sub-section (I) shall not be eligible for re-election as a president or vice president during the remainder of the term of the municipality.

37A. Notwithstanding that a councilor has resigned his office under Section 35, if it appears to the State Government that the councillor during the period he held office as a councillor has been guilty of misconduct in the discharge of his duties or of any disgraceful conduct, the State Government may disqualify him from becoming a councillor or a councillor or member of any other local authority for a period of five years from the date of its order :

Provided that no action against the councillor so resigned shall be taken under this section after the expiry of one year from the date of his resignation and without giving him a reasonable opportunity of being heard.'

'38( 1) If any councillor during the term for which he has been elected or nominated --

(a) become subject to any disqualification specified in Section 11, or

(b) acts as a councillor in any matter --

(i) in which he has directly or indirectly, by himself or his partner, any such share or interest as is described in Clauses (i), (ii), (iii), (v) or (vii) of Sub-section (3) of Section 11, whatever may be the value of such share or interest, or

(ii) in which he is professionally interested on behalf of a principal or other person, or

(c) is professionally interested or engaged in any case for or against the municipality, or

(d) departs beyond the limits of the State with the declared or known intention of absenting himself continuously for a period exceeding six months,

he shall subject to the provisions of subsection (2) be disabled from continuing to be a councillor and his office shall become vacant.

(2) in every case, the authority competent to decide whether a vacancy has arisen shall be the Collector. The Collector may give his decision either on an application made to him by any person or on his own motion after giving the councillor a reasonable opportunity of being heard,

(3) Until the Collector decides under Sub-section (2) that the vacancy has arisen, the councillor shall not be disabled under Sub-section (1) from counting to be a councillor.

(4) Any person aggrieved by the decision of the Collector may, within a period of fifteen days from date of such decision, appeal to the State Government and the orders passed by the State Government in such appeal shall be final.'

'70(1) Every councillor shall be personally liable for the misapplication of any fund to which he shall have been a party, or which shall have happened through or been facilitated by gross neglect of his duty as a councillor :

Provided that no councillor shall be personally liable in respect of any contract or agreement made, or for any expense incurred by, or on behalf of the municipality, the funds at the disposal of each municipality shall be liable for, and be charged with, all costs in respect of any contract or agreement and all such expenses.

(2) If after giving the councillor concerned a reasonable opportunity for showing cause to the contrary, an officer authorised by the State Government is satisfied that the councillor was party to the misapplication of any fund of the municipality or that the misapplication is a direct consequence of misconduct or gross neglect on his part, the officer so authorised shall by an order in writing direct such councillor to pay to the municipality before a fixed date, the amount required to be reimbursed to it for such misapplication/

(3) If the amount is not so paid, it shall be recovered as an arrear of land revenue and credited to the fund of the municipality.

(4) Any person aggrieved by the decision or action of the officer so authorised may within one month from the date of such decision or action apply to the District Court for redressal of his grievance and that Court after taking such evidence as it thinks necessary may confirm, modify or set aside the order and also make such order as to costs as it thinks proper in the circumstances.'

4. The learned counsel for the petitioners has also referred to order Annexure 'E' dt. 10-5-99, which has been passed by the Collector, Mehsana whereby the Collector, Mehsana had called upon the petitioners for personal hearing and present their case on 18-5-99. It is submitted by the learned counsel for the petitioners that a reply was also filed on 18-5-99 before the concerned Collector and it is also admitted before this Court that thereafter, the Collector has not passed any order. The learned counsel for the petitioners has also placed reliance on a decision of this Court in the case of Chimanbhai R. Patel v. Anand Municipality, reported in (1983) 1 Guj LR 67 : (AIR 1983 Gujarat 136) and in the case of Satishkumar R. Ahir v. Director of Municipalities, reported in (1998) 1 Guj LH 143 and it has been further pointed out by the learned counsel for the petitioners that this decision of the single Judge, reported in (1998) 1 Guj LH 143 (supra) has been confirmed by the Division Bench in the case of P. D. Gandavi v. Satishkumar Rameshchandra, reported in (1998) 1 Guj LH 301: (1998 AIHC 1718).

5. Having heard learned counsel for the petitioners at length and havinggone through the three orders, copies of which are on record at Annexure 'B', 'D' and 'E', this Court finds that Annexure 'B' dt. 24-2-99 was only a show cause notice to which the petitioners have already filed a reply, but no final order has been passed uptil now against the petitioners. So far as the order Annexure 'D' dt. 23-4-99 is concerned, it is clear from the reading of the operative part of this order that the Director of Municipalities has only taken a decision to start the proceedings under Section 70 against the petitioners and it is also clear that so far even a notice under Section 70(2) has not been given because the proceedings under Section 70 have been directed to be started only now and as and when these proceedings under Section 70 commence, the notice under Section 70(2) will be given and the appropriate orders will then be passed under Section 70 with regard to the petitioners. The next order i.e. Annexure 'E' dt. 10-5-99 as passed by the Collector, Mehsana is again an order by which the petitioners were called upon to appear and answer the notice on 18-5-99 to which the petitioners have also filed a reply on 18-5-99 and even thereafter no order whatsoever has been passed to the prejudice of the petitioners. As on today, the status of the petitioners as members of the Municipal Council remains intact. The three orders, to which reference has been made, are only the orders in the nature of giving show cause notice or starting proceedings under Section 70 and in the opinion of this Court, no final order adverse to the petitioners has been passed uptill now so as to give any legitimate cause of action to the petitioners to rush to this Court and challenge the show cause notices or the decision to start the proceedings under Section 70 of the Gujarat Municipalities Act. In the facts and circumstances of this case, the decision of this Court, as referred to above, on which reliance has been placed by the learned counsel for the petitioners, have no application for the simple reason that it is clearly given out by the learned counsel for the petitioners himself that in those cases final orders had already been passed when the matters were challenged before the Court.

6. The learned counsel for the petitioners then submitted that in view of 73rd and 74-th Amendment of the Constitution, the petitioners have acquired the status of constitutional functionaries and, therefore, the Executive Officers like that of Director of Municipalities or the Collector could not take any action against the petitioners. It may be observed that the Director of Municipalities and the Collector have to discharge their functions and in this case also the show cause notices have been issued with reference to the statutory powers under the Gujarat Municipalities Act. It is not a case of plain and simple removal as such so as to give rise to the nature of the argument as has been advanced by the learned counsel for the petitioners to claim the protection as a constitutional functionary. If there is a Statute which provides for taking action against the elected members of the body like Municipalities and the authorities invested with such powers under the Act proceed to initiate appropriate action in accordance with those provisions, the elected members are not entitled to seek protection against such action proposed or commenced in the matter of holding an inquiry into the alleged misconduct or otherwise.

7. For the reasons, as aforesaid, this Court does not find any merit in any of the submissions raised on behalf of the petitioners. This Special Civil Application, therefore, cannot be entertained at this stage when no final orders have been passed in any of the matters for which the grievance has been raised. This Special Civil Application is, therefore, dismissed.