RUSTAMJI NASARVANJI DANG OR Vs. JERAM KUNVERJI GANATRA

JUDGEMENT

(1.) The appellant was elected a councillor of Anjar municipality in Kutch District sometime in 1972, and later. President of the municipality. On June 30, 1973 after he had been elected President, the appellant applied to the chief officer of the municipality for allotting to him a plot of land admeasuring 18 feet x 16 feet situate in the town of Anjar. In his application the appellant stated that he wanted the plot for running a flour mill temporarily until he got a suitable plot from the government. By his order dated July 5, 1973 the chief officer granted the request permitting the appellant to hold the land on payment of rent on condition, inter alia, that the land should be vacated whenever the municipality so ordered. The first respondent who is a resident of Anjar applied to the Collector of Kutch under Sec. 38 of the Gujarat Municipalities Act, 1963 (referred to as the Act hereinafter) for declaring that the appellant's office has "become vacant" as he has disabled himself from continuing as a councillor by taking lease of the land from the municipality. The Collector having heard the parties held that the appellant had got the land by misusing his position as President of the Municipality incurring thereby the disqualification referred to in Section 38 (1) (b) (i) of the Act which disabled him from continuing to be a councillor and declared that his office had become vacant. The appellant before us preferred an appeal under Section 38 (4) of the Act to the State Government against the Collector's order. The State Government allowed the appeal and dismissed the application of the first respondent. It was held that the land was allotted to the appellant in accordance with the by-laws of the municipality and that there was no evidence of the appellant exerting any influence on the chief officer. The first respondent challenged the order of the State Government by filing a writ petition in the Gujarat High Court. The learned Judge of High Court who heard the petition allowed the same, quashed the order of the State Government, and restored the order made by the Collector. This appeal by special leave is directed against the Judgment of the High Court allowing the writ petition.

(2.) The appeal turns on Section 38 (1) (b) (i) of the Act which reads as follows:

(3.) Section 275 of the Act authorises the municipality to make by-laws not inconsistent with the Act. The Anjar municipality has framed by-law regulating the conditions on which permission may be given for the temporary occupation of public streets or land. An English translation of by-law 4 of these by-laws which are in Gujarati reads: