STATE OF GUJARAT Vs. KISHORCHANDRA AJITRAI

JUDGEMENT

(1.) In this revision application the short question for decision is whether the sanction to prosecute the Chief Officer of the Mangrol Municipality granted by Resolution No.29 dt. 30th July 1982 passed in the ordinary general meeting of Mangrol Municipality is a valid sanction to prosecute under S.6(1)(c) of the Prevention of Corruption Act, 1947, hereinafter referred to as the "Corruption Act". Under S.6(1)(c) it has been provided that no court shall take cognizance of an offence punishable under S.161 or S.164 or S.165 of the Penal Code or under S.5 of the Corruption Act alleged to have been committed by a public servant except with the previous sanction of the authority competent to remove him from his office.

(2.) The question in the present case is that the respondent, who was the Chief Officer of the Mangrol Municipality was sought to be prosecuted for the alleged offence under the Corruption Act and under S.161 of the Penal Code. Section 47 of the Gujarat Municipalities Act, 1963, hereinafter referred to as the "Act", provides that for every municipality there shall be a chief officer appointed by the Municipality. For the appointment of a Chief Officer qualification is prescribed under sub-ss.(2) and (3) of S.47 of the Act. Sub-secs.(4) and (5) of S.47 further provide that the State Government can direct the municipality to appoint a health officer or a land valuation officer or such other officer temporarily or permanently. Sections 48 and 50 of the Act provide for the removal of the chief officer, health officer and the engineer or the officer appointed under sub-sec.(4) or (5) of S.47. For deciding the issue in dispute it would be worthwhile to quote Ss.48 and 50 of the Act which read as under :-

(3.) The question which further requires to be determined is what is the meaning of phrase "resolution passed by a majority of at least two-thirds of the total number of the then councilors". It was strenuously contended by Mr. J.U. Mehta, learned public prosecutor appearing for the State, that the total number of then councillors means only those councillors who were present at the meeting when the resolution was passed. In our opinion, the contention of the learned public prosecutor is of no substance because the Legislature has advisedly used the phrase "two-thirds of the total number of the then councillors" meaning thereby the total number of councillors of the municipality at the relevant time. The words "the then councillors" would, therefore, mean the existing councillors of the municipality at the relevant time. The same phraseology is used in S.36(1) and (2) of the Act which provide procedure for motion of no-confidence. Sub-sec.(1) provides that any councillor of a municipality may give a notice to move a motion of no-confidence against its president or vice-president if such notice is supported by not less than one third of the total number of the then councillors of the municipality. Sub-sec.(2) provides that the motion of no-confidence should be carried out by a majority of not less than two-thirds of the total number of the then councillors of the municipality. Section 6 provides that every municipality shall consist of elected councillors. Sub-sec.(2) of S.6 provides that the number of such councillors shall be on the basis of its population varying from 25 to 51. Sub-sec.(3) provides that out of the total number of seats of councillors in a municipality there shall be reserved seats for women, Scheduled Castes and Scheduled Tribes as prescribed therein. Therefore, under S.6 of the Act total number of seats of councillors is fixed. In this section word "then" is used as equivalent to "at that time". It may be that some councillors may have resigned or died thereby giving rise to vacancy. So even though total number of councillors is fixed under S.6 of the Act, yet at the relevant time when the resolution is passed, there may be vacancy because of the death or resignation of some councillors and the total number would mean only those persons who were existing councillors of the municipality at the relevant time. In the present case admittedly when the impugned Resolution No.29 dt. 30th July 1982 was passed, 19 members remained present at the meeting. At that time total strength of the councillors of the Mangrol Municipality was admittedly 25. Out of the 19 councillors who were present, 13 councillors gave vote in favour of the resolution, one councillor gave vote against the resolution and 5 councillors abstained from voting. As per the interpretation we have just given to the phrase "two-thirds of the total number of the then councilors", it would be clear that the resolution ought to have been passed by majority of at least two-third councillors of the total strength of 25 councillors i.e. by a majority of at least 17 councillors. Admittedly the resolution is passed by the majority of 13 councillors. Hence it cannot be said that valid sanction under S.6(1)(c) of the Corruption Act is given by the competent authority who is entitled to remove the Chief Officer i.e. the respondent.