PATEL KANTILAL MULJIDAS Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present petition is preferred by the petitioner against the order dated 22.3.2002 passed by the Director of Municipalities, Gujarat State, Gandhinagar in purported exercise of powers under section 37 of the Gujarat Municipalities Act, 1963 (hereinafter referred to as "the Act") whereby the petitioner No.1 is removed as the Chairman of the Planning Committee and the petitioner Nos 2 to 5 are removed as the members of the Planning Committee and are also removed as the members/councillors of Unjha Municipality.

(2.) The short facts of the case are that the petitioners came to be elected as Councillors of Unjha Municipality at the General election of Unjha Municipality (hereinafter referred to as "the Municipality"). It is the case of the petitioners that there are in all 36 councillors elected at the said election which took place in December, 1999 result of which was declared on 4.1.2000. The case of the petitioners is that out of 36 councillors who came to be elected, 18 were belonging to Cong.I, 10 were belonging to BJP and 8 were Independent. The case of the petitioners is that the first meeting of the Municipality came to be held on 21.1.2000 and therefore their statutory term as the councillor of the Municipality is for a period of five years which would expire in January, 2005. The petitioners in their capacity as councillors subsequently were also elected as the members of the Planning Committee which is required to be constituted as per Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as "the T.P.Act"). The petitioners alleged that on account of the fact that they are belonging to Cong.I party and the party in power at the Statelevel is belonging to BJP, out of political vendetta, at the instance of respondent No.5 who is the leader of BJP, as alleged by the petitioners, a show cause notice was issued by the Director of Municipalities, Gujarat state-respondent No.2 herein on the allegation that the petitioners in the capacity as members of Planning Committee have granted various illegal permissions for construction and they have not taken steps for prohibiting the illegal constructions and therefore they have committed misconduct and therefore they were called upon to submit explanation as to why they should not be removed as the members of the Municipality under section 37 of the Act. On 16.1.2002 the petitioner No.1 preferred Special Civil Application No.311/02 and the petitioner Nos 2 to 5 preferred Spl.C.A.No.2130/02 before this court challenging the show cause notice issued by the second respondent herein. This court in both these petitions initially issued notice observing that it will be open to the petitioners to raise all legal contentions available to them under law and it was also observed that the respondent No.2 shall decide the matter and dispose of in accordance with law after providing opportunity of being heard to the petitioners within two months. It was also observed by this court that if any order adverse to the petitioners is passed, the petitioners will be at liberty to move this court for making necessary amendment and the said adverse order which may be passed by the authority shall not be executed/implemented for a period of two weeks thereafter to enable the petitioners to pursue legal recourse available under law. It is the case of the petitioners that on 6.2.02 the petitioners applied to the Chief Officer of the Municipality to supply of copies of certain resolutions since the petitioners wanted to submit their reply to the show cause notice, dated 27.12.2001. However, on 8.2.2002 the Chief Officer of the Municipality intimated to one of the petitioners, namely, Bhagwandas that the record is with the Collector, Mehsana and therefore the copy may be obtained from the office of the Collector, Mehsana. The case of the petitioners is that on 14.2.2002 they submitted an application to the Collector, Mehsana for supplying all the resolutions and certain documents with a view to enable them to submit their reply and together with the said application the petitioners had also deposited a sum of Rs.50.00 with the office of the Collector. Pending said application before the Collector, on 12.2.02 the petitioners submitted application by way of preliminary objections on the point of jurisdiction of respondent No.2 herein regarding the power to issue show cause notice. It is also the case of the petitioners that together with the said application on 12.2.2002 the petitioners also submitted an application for supplying better particulars or for clarification and in addition to the same the petitioners made an application to the respondent No.2 to supply the copies of the documents which are narrated in the said application from Sl.Nos. A to F and a request was made that the respondent No.2 may direct the office to supply all documentary evidence and reasonable time may be granted to the petitioners to submit their written reply after supply of aforesaid documents. It is the case of the petitioners that the documents which were to be supplied have not been supplied till today but on 19.2.2002 the hearing of application for deciding preliminary issue on the point of jurisdiction was given by Shri Dharaiya who was the then Director of Municipalities and the hearing was concluded below the said application raising preliminary issue on the point of jurisdiction and from 22.2.2002 Shri Dharaiya who was the then Director of Municipalities was on leave and the hearing was fixed on 6.3.2002 before another Director, namely, Shri P.K.Ghadvi, who was incharge Director of Municipalities. It is the case of the petitioners that on 5.3.2002 the petitioner No.2 met with the accident and therefore he could not contact his advocate and on 6.3.2002 the advocate appearing for the petitioners communicated to the Director of Municipalities to adjourn the matter on the ground of disturbed situation and accident of the petitioner No.2. Thereafter, on 11.3.2002 the hearing was fixed and the petitioners had requested for time and it is the case of the petitioners that on 19.3.2002 the petitioners submitted an application in writing through their advocate requesting for grant of opportunity of hearing before taking final decision in the matter and it was verified that till 19.3.2002 no order was passed.

(3.) On 21.3.2002 aforesaid Special C.A.Nos 311 & 2130/02 came up for hearing before this court (M.S.Shah,J) and both the petitions came to be disposed of with a direction that in case the Director of Municipalities passes the order adverse to the petitioners, same shall not be implemented for a period of two weeks from the date of communication of the order with a further direction that the Director of Municipalities shall complete the inquiry and pass appropriate orders by 30.4.2002. It is also recorded in the said order that Mr.Sen, Ld.AGP has sought time on the ground that the Director of Municipalities is presently on leave. However, it appears that on 22.3.2002 Shri P.K.Gadhvi was holding the office of the Director of Municipalities passed final order under section 37 of the Act whereby the petitioners are removed as members of the Municipality and the petitioner No.1 is also removed as Chairman of the Planning Committee. It is this order which is under challenge before this court.