IMTIYAZBHAI IBRAHIMBHAI POTHIYAWALA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This group of petitions raise a common question of law to an effect as to whether a mere procedural irregularity will hold the councillors responsible for misapplication of municipal funds under Section 70 of the Gujarat Municipalities Act, 1963 ( the Act for short). This issue is no more res-intergra in view of the decision rendered by this Court in Hinaben R. Chauhan Vs. State of Gujarat, 2002 4 GLR 3421, wherein this Court laid down the following principles which are reproduced hereinunder:

(2.) This is also nor to say that any mala fide act done by a public functionary/official in violation of a mandatory rule is as to condoned on the ground that the violation was only of a procedural rule. It is trite saying that bona fides or mala fides are not to be judged merely on the basis of compliance or violation of a procedural rule because an act may be in compliance with a procedural rule and still be mala fide, just as an act may be bona fide notwithstanding the violation of a procedural rule. What is being emphasized is the need not to overlook the broad perspective discussed earlier. Unless this perspective is kept in mind, too technical and pendantic an approach on the part of disciplinary authorities or authorities exercising similar powers with single-minded obsession to the breach of a procedural rule per se can do, and has been doing, considerable damage to the morale of the public functionaries and officials acting honestly and bona fide and their initiative has bee curbed; and has even been making a large number of honest and talented persons shun such responsible public offices.

(3.) Undisputedly, allegations against the councillors were in relation to procedural lapses in making appointment of certain employees. No where it is explained in the show-cause-notice as to how such irregular appointment has resulted into misapplication of municipal funds. In fact, in one of the cases being Special Civil Application No.5175 of 2009 filed against the State Government, the Lower Appellate Court while exercising powers under Section 70(2) of the Act found that on one hand, the Collector who is the supervising authority of Municipalities under Sections 257 and 258 of the Act himself insisted for the appointment and on the other hand, made grievance under Section 70 of the Act to the Regional Director of Municipalities as indicated above.