BHARAT BHAI R BHAVSAR Vs. DIRECTOR OF MUNICIPALITIES

JUDGEMENT

(1.) RULE. Ms. Mini M. Nair, learned assistant Government Pleader, waives service of notice of rule for the respondents nos. 1 and 2 and Mr. H. M. Parikh, learned counsel, waives service of notice of rule for the respondent No. 4. Smt. Minakshiben g. Bhavsar, Chief Officer of Kathlal municipality is present in person before the court and states that the Kathlal municipality (respondent No. 3) does not want to contest the petition, therefore, there is no necessity of issuing notice of rule to the respondent No. 3. In the facts and circumstances of the case, and with the consent of the learned counsel for the respective parties, the petition is taken up for final disposal.

(2.) BY way of this petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 10-3-2008 whereby, the appeal filed by him under the provisions of Section 38 (4) of the gujarat Municipalities Act, 1963 has been rejected, by the respondent No. 1.

(3.) THE brief facts, as emerging from a perusal of the averments made in the petition are that, the petitioner is a councillor of Kathlal Municipality, having been elected as such, and took charge on 3-4-2006. According to the petitioner, at the relevant point of time, the disease of "chikungunya" was spreading within the area of the respondent No. 3 Municipality and, therefore, the petitioner supplied 99 bags of a pesticide known as "methyl perotheon Powder" to the Municipality from the firm known as "bhavsar Hariom bijwala", of which the petitioner is the proprietor. It is averred in the petition that a cheque for Rs. 22,275/- was issued to the petitioner in respect of the supply of bags of methyl Perotheon Powder, which was countersigned by the respondent No. 4, who was the then President of the Municipality. The Executive Committee of the municipality approved the supply of Methyl perotheon Powder from the firm of the petitioner to the Municipality, by passing resolution No. 47 dated 6-9-2006. Thereafter, this Resolution of the Executive committee came to be approved by the general Board of the Municipality by resolution No. 36 dated 16-10-2006. It is the case of the petitioner that even though the Municipality issued an advertisement in the newspapers, inviting tenders for the supply of Methyl Perotheon Powder on 5-8-2006, no applications were received and,therefore, looking to the urgency of the situation and the necessity of supplying the pesticide powder to control the spread of "chikungunya", the petitioner supplied 99 bags in all of the pesticide on 5-8-2006, 8-8-2006, 20-8-2006 and 25-8-2006, for which he received payment by cheque, as mentioned above. It is further averred in the petition that it was only after the second advertisement, dated 18-8-2006, was published in the daily newspaper "divyabhaskar" that the tender of Shri Omkar marketing was accepted, at the rate of rs. 232/- per bag, whereas the petitioner has charged only Rs. 225/- per bag. According to the petitioner, no financial loss has occurred to the Municipality by purchasing the said powder from his firm at the rate of rs. 225/- per bag and, further,the pesticide powder was utilised at the crucial time when the disease of "chikungunya" was spreading in the area. It further transpires from a reading of the petition that the respondent No. 4, who was the. then president of the Municipality, made an application to the Collector as well as the director of Municipalities on 23-7-2007, pursuant to which the District Collector issued a show cause notice under the provisions of Section 38 (2) of the Gujarat municipalities Act, 1963 ("the Act" for short) read with Section ll (3) (A) (i) of the act. The petitioner filed his reply to the show cause notice on 29-9-2007. The municipality also filed a reply to the show cause notice. After hearing the parties, and considering the replies of the petitioner and the Municipality, the District Collector passed order dated 29-9-2007, whereby the petitioner has been disabled from continuing as a Councillor of the Kathlal municipality, and his office has been declared to have become vacant. The order dated 29-9-2007 of the District Collector has been annexed as Annexure "f" to the petition. Aggrieved by the above stated order, the petitioner filed an appeal, under the provisions of Section 38 (4) of the Act before the State Government, which has been dismissed by order dated 10-3-2008, a copy of which is annexed as Annexure "a" to the petition, giving rise to the present petition.