MEHMOODMIYA KADRI Vs. SIRISHKUMAR MODI

JUDGEMENT

(1.) Petitioners question the validity and legality of a resolution adopted by the second respondent Palanpur Municipality (Muni- cipality for short) of 20th March 1977 by which the Municipality at its requisitioned meeting held on that day formed as many as 12 new Committees including the Executive Committee.

(2.) Few facts leading to the present petition are quite interesting and revealing and may be noticed. Municipality is deemed to have been consti- tuted under the Gujarat Municipalities Act 1963 (1963 Act for short). As required by sec. 55 of the 1963 Act it had appointed various committees. Term of all these committees expired on 11th November 1976. The President of the Municipality first respondent convened a meeting of the General Board of the Municipality by a notice dated 23rd October 1976 Annexure A on 11 11-1976 at 8-30 P.M. Item No.2 on the agenda was Appointing new Committees as the term of the existing committees were to expire on 11-11-1976. The meeting was convened and as many as 12 committees were set up including the executive committee which transpires from the Circular Annexure B dated 12-11-1976 issued by the Chief Officer of the Municipality. These committees started functioning from the date of their appointment. A requisition dated 5th March 1977 signed by 7 councillors appears to have been received by the first respondent Pre sident and pursuant to this requisition the President directed a notice to be issued and such notice dated 14/15th March 1977 was issued convening a meeting of the General Board of the Municipality on 20th March 1977 at 10 A.M. Item No.2 on the agenda was that the requisition was received from seven councillors and requisition desired a resolution to be moved to set up all the committees afresh as the existing committees had failed to discharge their duties or were not satisfactorily discharging their duties. One development that took place before the meeting was convened may be now noted. Petitioners four in number who are Chairmen of four different committees filed a petition on 18th March 1977 questioning decision of convening the meeting. An interim relief was prayed for restraining the Municipality from examining item No. 2 on the agenda. A notice was ordered to be issued. Interim stay was refused under certain circumstances which need not be stated here. However the meeting was convened and a resolution appointing all the 12 committees afresh was adopted. On 21st March 1977 petitioners herein moved the Court for interim stay of the operation of the resolution adopted on 20th March 1977 which was granted. The petition was thereafter amended with a view to joining all those persons who are appointed on different committees and who may be affected by the decision in this petition. Another amend ment was sought questioning the validity of the resolution itself. These amendments were granted. The petition was set down for hearing pre emptorily thereafter.

(3.) Mr. S. K. Zaveri learned Advocate who appeared for respondents Nos. 1 and 2 namely the President and the Municipality raised a preliminary contention to the maintainability of this petition. Mr. Zaveri formulated the preliminary objection thus: Under Article 226 (1) (b) and (c) of the Constitution amended by the Constitution (Forty second) Amendment Act 1976 it would not be open to this Court to entertain this petition purporting to be under Article 226 in view of the provision contained in sub article (3) which forbids the Court from entertaining a petition seeking redress under clauses (b) and (c) of Article 226(1) if any other remedy for such redress is provided for by or under any other law for the time being in force. Urged Mr. Zaveri that sec. ?.58 of the 1963 Act provides a remedy under the Act in respect of the wrong complained of full redress can be had from the authority set up under the Act and therefore the Court should not entertain this petition. Sec. 258 confers power on the Collector to suspend execution or prohibit the doing of anything which is about to be done by the municipality if it is causing or likely to cause injury or annoyance to the public or to lead to a breach of the peace or is unlawful. It was said that the resolution of the municipality validity of which is questioned if it is alleged to be unlawful by the petitioners they could move the Collector and obtain effective relief under sec. 258. This was countered by Mr. A.S. Qureshi learned Advocate for the petitioners by saying that the remedy provided by sec. 258 is not effective remedy. If one were to accept the contention of Mr. Qureshi it may unnecessarily in a given situation cut down the power of the Collector where possibly someone can avail of cheaper remedy being had compared to High Court. Therefore I do not propose to reject the preliminary contention raised by Mr. Zaveri on the ground that sec. 258 would not provided a full remedy under the Act to the petitioner who are seeking relief under the very Act. I would however overrule the preliminary objection on a wider ground.