MADHUBHAI RAMBHAI PATEL Vs. CHIMANBHAI KASHIBHAI PATEL

JUDGEMENT

(1.) This application involves a question as to the correct interpretation of the words in any case for or against the municipality used in section 28(1)(bb) of the Bombay Municipal Boroughs Act 1925 The question arises in the following manner.

(2.) At all material times the petitioner and the first respondent were members of the Borough Municipality of Nadiad. On March 4 1961 the petitioner filed an application before the Collector Kaira under section 28 and section 28(2) of the Bombay Municipal Boroughs Act 1925 for declaring a vacancy in the seat of the first respondent as a councilor of the municipality. The petitioners case in that application was that the president of the municipality by his letter dated August 6 1960 had requested the Collector to declare the seat of one W. N. Patel vacant under section 28(2) of the Act as the said W. N. Patel had rendered himself disqualified under section 12(2) (aa) of the Act on the ground that he had failed to pay the arrears of municipal taxes notwithstanding a notice having been served upon him. In pursuance of that application the Collector held an inquiry after issuing notices both upon the said K. N. Patel and the president of the municipality. In that inquiry the first respondent filed his vakalatnama for and on behalf of the said 19. N Patel. The first respondent besides filing his vakalatnama also appeared in that inquiry for the said 19. N. Patel and even opposed the request of the president of the municipality to engage an advocate on his behalf in that inquiry. That objection was however rejected ky the Collector by his order dated December . 9 1960 The Collector also ordered that the president of the municipality should be deemed to be a party to the said inquiry and allowed him to engage an advocate. Thereafter the first respondent by an application dated November 22 1960 applied for stay of the said inquiry but that application also was rejected by the Collector by his order dated December 9 1960 In these circumstances the petitioner applied to the Collector that the first respondent had rendered himself disqualified to be or to continue as a councilor of the municipality as he became disqualified on the ground that he was professionally engaged in the aforesaid case before the Collector against the municipality and requested the Collector to declare his seat as councilor vacant. A show cause notice was issued to the first respondent calling upon him to show cause why he should not be disqualified as a councilor.

(3.) The first respondent appeared before the Collector and opposed the show cause notice contending that the inquiry in which he appeared on behalf of the said 0. N. Patel was not a case within the meaning of section ?8(1)(bb) and therefore he did not incur any disqualification. He also urged that section 28(1)(bb) did not apply to the aforesaid inquiry as the municipality was not a party to that inquiry The Collector held however that the inquiry against the aforesaid W. N. Patel for non-payment of municipal taxes was a case within the meaning of section 28 that the interest of the municipality was involved in the said inquiry as the disqualification of the said K. N. Patel was sought on the ground of arrears of municipal taxes and as the first respondent had appeared on behalf of the said K. N. Patel in an action against him arising from non-payment of municipal taxes the first respondent must be said to have incurred the disqualification as contemplated by section 28 In that view the Collector declared the first respondent to have been disqualified from being a councilor of the municipality and declared his seat to have fallen vacant. The first respondent filed an appeal against the aforesaid order of the Collector before the second respondent. The second respondent held that the disqualification proceedings in respect of the said 0.N. Patel did not constitute a case for or against the municipality as an inquiry for disqualifying a councilor was a matter which primarily pertained to the councilor and the municipality was not interested in and was not a party to such a proceeding In that view the second respondent set aside the order passed by the Collector and held that the first respondent continued to be a councilor of the municipality. It is against that order of the second respondent that the present application has been filed.