NUTANBHAI CHHAGANBHAI BHARWAD Vs. DISTRICT COLLECTOR

JUDGEMENT

(1.) The petitioners, in these petitions, challenge the notice Annexure.A dated 5.3.2003 issued by the District Collector, Ahmedabad, the first respondent herein, under Section 38 read with Section 11 of the Gujarat Municipalities Act, 1963 ("the Act" for short). Both the petitioners have sought a writ of prohibition against the first respondent, in proceeding with the application filed by the second respondents in both the petitions. According to the petitioners, the proceedings initiated by the first respondent is without competence, authority or jurisdiction and contrary to the provisions of law and also malafide. Since common question question of law is involved in these matters, both the petitions are heard together and are disposed of by this common judgment.

(2.) Having heard the matter at length, with the consent of the learned Counsel appearing for the parties, we have decided to dispose of both these matters finally. In view of this, we formally issue Rule in the matters. Learned Govt. Pleader Mr.Arun D.Oza waives the service of Rule on behalf of respondent No.1 while learned Counsel Mr.Vijay H. Patel and Mr.Asim J.Pandya waive the service of Rule on behalf of respondent No.2 in Special Civil Application No. 2622 of 2003 and in Special Civil Application No.2625 of 2003, respectively.

(3.) The petitioners and second respondents were contesting candidates from Ward No.4 and Ward No.6, respectively, of Bavla Municipality for which the election was held on 16th February 2003. Both the petitioners were contesting as Congress candidates and the second respondents were contesting as BJP candidates. It is averred in the respective petitions that in Ward No.4, there are three seats out of which, one seat is reserved for woman belonging to Bakshi Panch and in Ward No.6, there are three seats out of which, one seat is reserved for woman belonging to Scheduled Caste. In the aforesaid election, there were three candidates including the petitioners sponsored by Congress and three candidates sponsored by BJP and all the three Congress candidates of respective Wards won the election defeating BJP candidates. It is further averred by the petitioners that since the term of the previous term of the Bavla Municipality has come to an end on 24th January 2001, the State Government, instead of holding election, had appointed Administrator with effect from 25th January 2001 and accordingly, the Municipality is under Administrator with effect from 25th January 2001 till the date of filing of the petitions since the newly elected body, in pursuance of the general election of the Municipality held on 16th February 2003 had not come into effect. According to the petitioners, in the general election held on 16th February 2003, the Congress won 14 seats, BJP won 12 seats and an independent candidate won one seat. After the publication of the names of the persons who have been declared elected, the first respondent issued notice dated 4th March 2003 giving intimation to all the elected Councillors regarding the first meeting of the newly elected General Board of the Bavla Municipality to hold election of the President and Vice President on 10th March 2003 at 3.00 p.m. This notice was received by the petitioners on 5th March 2003 at about 2.30 p.m. After the said notice, the petitioners received the notice Annexure.A on 5th March 2003 at 6.30 p.m. issued by the first respondent. According to the petitioners, the notice Annexure.A is in pursuance of the application purported to have been filed by the second respondents under Section 38 read with Section 11 of the Act, on 27th February 2003. By the said notice, the first respondent fixed the date of hearing on 7th March 2003, which is impugned in these petitions. On perusing the application filed by the second respondent, in Special Civil Application No.2622 of 2003, it may be seen that an allegation is made against the petitioner that while he was the President of the Municipality, in the previous term, he has caused loss to the extent of Rs.18,75,967.00 to the Municipality. The Director of Municipalities had in fact passed an order dated 15.11.2002 to recover the said amount after deducting Rs.2,40,000.00 from the petitioner. The second respondent, in Special Civil Application No.2625 of 2003, in his application, has alleged that the petitioner is having interest in the transaction with his son and that the petitioner has favoured his son by granting Tender of the Water Department. It is further alleged that the petitioner as well as his son are the members of joint family and have joint financial transactions. Accordingly, the second respondents of both the petitions have prayed before the Collector to pass an order disqualifying the petitioners as Councillors and also to declare that they are not entitled to take part in the election of the President of the Municipality. On receiving the notice Annexure.A, the petitioners applied for adjournment for the purpose of filing the reply. It appears that the application for adjournment was rejected and the first respondent has decided to proceed with the hearing. The petitioners have accordingly approached this Court challenging the notice Annexure.A seeking writ of prohibition restraining the first respondent in proceeding with the notice Annexure.A.