NATWARBHAI ALABHAI PARMAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By way of this petition under Art. 226 of the Constitution of India, petitioner has prayed for an appropriate writ, direction or order quashing and setting aside the impugned order dated 13-8-2010 passed by respondent No. 2-Collector, Surendranagar in Municipal Case No. 2 of 2010 (Annexure-A) and further to declare that respondent No. 5 has ceased to be the Councillor of respondent No. 4-Municipality and the said office stands vacant.

(2.) That the petitioner and respondent No. 5 herein were elected as Councillors of the Thangadh Municipality in the election which was held on February, 2008. It is the case on behalf of the petitioner that respondent No. 5 has always been irregular in remaining present as Councillor and that she has remained absent even during the General Body Meeting of the Councillors. That as respondent No. 5 consistently remained absent during the General Body Meeting held on 3-11-2008, 4-3-2009, 19-6-2009, 14-10-2009 and 13-11-2009 without applying for leave, according to the petitioner, respondent No. 5 ceased to be the Councillor and her office had fallen vacant, and therefore, the petitioner submitted an application before the Collector to pass an order under Sec. 39 of the Gujarat Municipalities Act, 1963 (hereinafter referred to as "Act, 1963") to declare that respondent No. 5 has ceased to be the Councillor and her office had fallen vacant. That the said case was registered as Municipal Case No. 2 of 2010 and respondent No. 5 was served with the notice and was called upon to show cause why an order should not be passed that she has ceased to be the Councillor of the Municipality and her post be not declared vacant. That respondent No. 5 as well as the Chief Officer of Thangadh Nagarpalika appeared before the Collector and respondent No. 5 submitted the written reply on 9-8-2010 submitting the reason for which she had remained absent in the aforesaid meetings and tried to justify her absence by submitting that on 3-8-2010, she had gone to Haridwar, and therefore, she did not remain present in the meeting. It was further submitted that on 4-3-2009, she was not well, and therefore, she did not remain present in the meeting. It was also further submitted that on 19-6-2009, she had gone to Dwarka, and therefore, she did not remain present in the meeting on that day. It was also further submitted that on 14-10-2009 again, she had gone to Dwarka, and therefore, she did not attend the meeting. It was further submitted that on 13-11-2009, she was not well, and therefore, she did not attend the meeting. Thus, she tried to justify her absence from remaining absent in the aforesaid meetings. That the Collector by impugned order directed the proceedings and passed an order to withdraw the said notice by observing that nothing is on record that respondent No. 5 was served with the notice/agenda of the aforesaid General Meeting and that nothing is on record that respondent No. 5 has deliberately remained absent in the aforesaid meetings. Being aggrieved and dissatisfied with the impugned order passed by the Collector, Surendranagar dated 13-8-2010 withdrawing the notice against respondent No. 5, petitioner has preferred the present Special Civil Application under Art. 226 of the Constitution of India.

(3.) Shri Hriday Buch, learned Advocate appearing on behalf of the petitioner has vehemently submitted that the impugned order passed by the Collector, Surendranagar in withdrawing the notice against respondent No. 5 is contrary to the provisions of statutes more particularly Sec. 39 of the Act, 1963. It is submitted that Sec. 39 of the Act, 1963 provides that if any Councillor absents himself or herself for more than four consecutive months without the leave of the Municipality, such Councillor shall be ceased to be a Councillor and his/her office shall be vacant. It is submitted that while considering such an absence of the Councillor, the intention of a Councillor is not required to be considered at all and/or reasons for remaining absent are not required to be considered. It is submitted that moment it is found that any Councillor during his term of office, absents himself for more than four consecutive months from the Municipal Borough unless leave not exceeding four months so as to absent himself has been granted by the Municipality; absents himself for four consecutive months from the meetings of the Municipality without the leave of the Municipality, he/shall cease to be a Councillor and his/her office shall be vacant. Therefore, it is submitted that the impugned order passed by the Collector withdrawing the notice against respondent No. 5 on the ground that nothing is on record that there was any mala fide intention and/or any other intention on the part of respondent No. 5 in remaining absent, cannot be sustained and the same deserves to be quashed and set aside.