HIRALAL G SIYAL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioners herein are the Ex-Councillors of Porbandar Nagarpalika. By filing this petition, they are challenging the order dated 3.9.2002, passed by the State Government, by which the Porbandar Municipality is ordered to be dissolved under the provisions of Section 263(1) of the Gujarat Municipalities Act and an Administrator is appointed to look after the affairs of the said Municipality. The aforesaid order of dissolving the said Municipality is passed on the ground that the Municipality has failed to discharge its duty. The proceedings were initiated by way of show cause notice dated 6th June, 2002. The said show cause notice was issued to the President of the Nagarpalika for the purpose of showing cause as to why proceedings under Section 263(1) of the Act should not be initiated against the Nagarpalika. In the said show cause notice, eight grounds are mentioned for the purpose of initiating the proceedings under the said proviso. The grounds mentioned in the show cause notice are at page 61. Ground No.1 relates to non-removing of the garbage and dirt from one Memanwada area. It is mentioned in the said ground that for failure in performing their duty in keeping the said area clean, complaint was filed against the Municipality under Section 133 of the Code of Criminal Procedure and when the matter was examined through the Mamlatdar, it was noticed that some false rojkams were prepared and subsequently, the person, who had signed the said Rojkam, gave complaint to the Deputy Collector that he had signed the Rojkam without proper verification. It is mentioned in the show cause notice that the Nagarpalika has not taken appropriate care in keeping the said area clean and that the Municipality had failed to maintain cleanliness and has failed to provide necessary facilities in connection with the healthy and hygienic atmosphere of the town. So far as ground No.2 is concerned, it is in connection with non-maintaining appropriate roads, which are affected in view of underground cabling and also in view of some cyclone which had taken place some time back. Ground No.3 is in connection with not taking care of catching hold of dogs and other animals even though Municipality is having appropriate staff and vehicles in this connection. It is also mentioned in the said notice that about 25 cattle died due to the negligence on the part of the Municipality as they were not given appropriate water, etc. and no medical facility was made available to such cattle and, accordingly, it is found that the Municipality has failed to carry out its duty. Ground No.4 is regarding not providing appropriate drinking facilities to the citizens of the Town and accordingly, it is observed that the Municipality has failed to discharge its duty in distributing water in a proper manner. Ground No.5 is regarding not maintaining sewerage and not cleaning the sewerage and non-maintenance of drainage system and that the Municipality is found to be negligent in maintaining the same. Ground No.6 is in connection with certain irregularity in the matter of auctioning certain Municipal buses for which the President of the Municipality was also served with a notice. Ground No.7 is in connection with renting out certain Municipal property without prior approval of the Competent Authority as well as regarding fixing upset price which resulted in monetary loss to the Municipality. The last ground mentioned in the notice is in connection with fixing rateable value in the matter of assessing house tax and it is found that in certain cases, the Municipality has reduced house tax to an extent of more than 50% and in certain cases, it is reduced to 90% to 98%. It was found that no reasons are given as to on what basis such reduction is made and that, accordingly, by reducing the house taxes, the Nagarpalika has abused its powers, which resulted in monetary loss to the Municipality. Each and every ground mentioned in the notice was replied by the Municipality through its President, by giving its explanation. It is also mentioned that the grounds mentioned in the show cause notice can never be taken as basis for dissolving the Panchayat. The Deputy Secretary of the Urban Development and Urban Housing Department, State of Gujarat, by his order, dated 3.9.2002, came to the conclusion that except ground No.7, mentioned in the show cause notice, it is established that rest of the grounds are found to have been proved and that, accordingly, the Municipality has failed to discharge its duty and accordingly, a decision was taken to dissolve the said Municipality under Section 263 of the Municipalities Act. The said order passed by the State Government, through the Deputy Secretary, is impugned at the instance of the Councillors of the Municipality.

(2.) At the time of hearing of this petition, Mr.J.R. Nanavati, learned Senior Advocate, who is appearing for the petitioners, has vehemently submitted that the impugned decision is not taken bona fide and that the said decision is arbitrary, it suffers from the vice of non-application of mind and it is contrary to the principles of natural justice. It is submitted that the State Government was not having appropriate material for initiating proceedings against the Municipality and without there being any rational material on record, show cause notice was issued to the Nagarpalika. It is also submitted by Mr.Nanavati that even the initiation of the proceedings itself is bad, as, at the time of issuance of show cause notice, the State was not having any appropriate material with it. Not only that, no documents in connection with any of the alleged grounds were supplied to the Municipality. He submitted that for non-availability of necessary material, it was difficult for the Municipality even to defend such vague charges, as no particulars were given in the show cause notice. Mr.Nanavati also further submitted that at the request of the Municipality, subsequently, some documents were given in connection with two charges, i.e. charge Nos. 3 and 6. However, for rest of the charges, no material was made available to the petitioner. On the merits of the charges also, it is submitted by Mr.Nanavati that the grounds mentioned in the show cause notice as well as in the order are absolutely vague and there is no substance in any of the grounds mentioned in the notice as well as in the order.

(3.) Regarding each of the grounds, justification is given on behalf of the Municipality as regards each and every ground. Notice dated 6th June, 2002 was served upon the Municipality. the said notice was initially replied on behalf of the Municipality, through their Advocate, vide reply dated 27th June, 2002. The said reply to the show cause notice was given by the President of the Municipality, through its Advocate. In the said reply, it is pointed out that notice is required to be given to all Councillors of the Nagarpalika and, therefore, initiation of the proceedings is illegal. It is also pointed out that no supporting material is given in connection with each of the charges levelled against the Municipality. It is also averred in the reply that as and when particulars are given, the Municipality will give appropriate reply. Initially, the petitioner has approached this Court at the show cause notice stage by filing a writ petition, being Special Civil Application No.6091 of 2002. Since it was at the show cause notice stage, the learned single Judge did not entertain the said Special Civil Application. However, the learned single Judge gave the following directions :-