Jashodaben J. Padhiyar vs State of Gujarat and Others

K.S. Jhaveri, J.—Rule. Learned AGP Mr. Nikunt Raval waives service of rule on behalf of the respondents. With the consent of both the sides, the matters are taken up for final hearing today. This group of petitions involve common questions on law and facts and hence, they are disposed of by this common judgment.

By way of these petitions, the petitioners have prayed to quash and set aside the show cause Notices, issued by respondent No. 3, dated 14.09.2010, whereby, the petitioners have been directed to show cause as to why action u/s 37 and 70 of the Gujarat Municipalities Act, 1963 (for short, "the said Act") be not initiated against them; and such other ancillary reliefs.

The facts in brief are that the petitioners herein came to be served with the impugned Notices, issued by respondent No. 3, dated 14.09.2010 calling upon them to show cause as to why they should not be removed u/s 37 of the said Act and as to why proceedings u/s 70 of the said Act be not initiated against them for the alleged irregularity/misconduct committed by them in the construction work of the check-dam over river Meshri.

It is the case of the petitioners that the impugned show cause Notices issued to them is beyond the scope & without jurisdiction since the power for removing a Councilor can be exercised only when, at the time of issuance of such Notice, the person concerned is holding the Office in the Nagar Palika.

It has been submitted on behalf of the petitioners that the petitioners were not holding the post of councillors of Godhra Nagar Palika at the time when the Notices were served upon them and therefore, the impugned Notices are bad in law and deserves to be quashed and set aside.

5.1 Learned Counsel for the petitioners has placed reliance upon a decision of this Court in the case of Mustakbhai Pirmohmad Shaikh v. Shri C.M. Leua or his successor-in-office, Director of Municipalities and Ors. 1995 (2) G.L.H. 305, wherein, it has been held that the State Government cannot invoke Section 37 of the Gujarat Municipalities Act, 1963 to disqualify ex-Councilors from standing for an election in future and that being in the Office is a condition precedent for exercising such powers to disqualify a Councilor from an election in future. It has been further held therein that the State Government has no power to invoke Section 37A of the said Act against councillors who have ceased to hold Office by efflux of time or upon their tenure coming to an end.

Heard learned Counsel for the respective parties and perused the documents on record. The petitioners herein were elected as councillors of Godhra Nagar Palika in pursuance of the elections held in October 2005. However, in the proceedings initiated before the Designated Officer under the Gujarat Provisions for Disqualification of Members of Local Authorities for Defection Act, 1986 (for short, "the Defection Act"), the petitioners were ordered to be disqualified under the provisions of the Defection Act and the Rules framed thereunder, vide order dated 16.01.2009.

The authority concerned has proposed to initiate action u/s 37 of the said Act against the petitioners. Section 37 of the Act provides that the State Government may, on account of a Councilor or the President or the Vice-President being held guilty of misconduct, remove the Councilor or the President or the Vice-President from the Office. The reference to the work ''Office'' in the said provision clearly indicates that at the time when the order is passed, the person, against whom the order is proposed, should be in ''Office''. In the present case, the petitioners came to be disqualified on 16.01.2009 and the impugned show cause Notice came to be issued on 14.09.2010. Therefore, evidently, when the show cause Notices came to be issued, the petitioners were not holding the ''Office'' of Councilors. Section 37 of the said Act, therefore, could not be invoked for the simple reason that the petitioners were not holding any ''Office'' from which they could be removed. They had, in fact, already ceased to hold ''Office'' as far back as on 16.01.2009. This being the factual situation and also in view of the decision laid down in Mustakbhai Pirmohmad Shaikh case (supra), the impugned action of the respondent-authority is bad in law and without jurisdiction. Hence, the same deserves to be quashed and set aside.

For the foregoing reasons, the petitions are allowed. The impugned show cause Notices dated 14.09.2010 issued by respondent No. 3-authority are quashed and set aside. The petitions stand disposed of accordingly. Rule is made absolute.