JYOTIBEN CHANDRASHEKHAR SHINDE Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard the learned Counsels for the parties.

(2.) The petitioner, Smt. Jyotiben Chandrasekhar Shinde, filed this petition in capacity of a President of the Kadi Municipality and challenge has been made to the show-cause notice which has been given to the petitioner by respondent No. 1 dated 1-9-1997 directing the petitioner to show-cause within fifteen days from the date of receipt of the same as to why action under Sec. 263(1) of the Gujarat Municipalities Act, 1963 (hereinafter referred to as 'Act 1963') should not be taken to dissolve the Municipality on the ground that the Municipality has failed to perform the statutory duties under the Municipalities Act and has misused/abused the power vested into it and has also violated the condition No. 4 of the order dated 17-10- 1990 with regard to a portion of Kadi-Detroj road passing through Kadi Municipality and has also not obtained prior permission of Roads and Buildings Department nor has taken into account rules and regulations of Ribbon Development, and has not stopped the construction of shopping centre on this road in spite of the fact that Executive Engineer has instructed not to do so and has also not obeyed the order passed by the Collector on 3-10-1996. This show-cause notice was received admittedly by petitioner on 9-9-1997.

(3.) Instead of replying to the show-cause notice, the petitioner approached to this Court by filing this Special Civil Application. This Court, on 22-9-1997, has ordered for issuing notice to the respondents and by way of interim relief, it has been directed that if any order comes to be passed against the petitioner, it will not be implemented until then. Today in the Court, the learned Counsel for the State submitted on the record of this Special Civil Application, a copy of the order of the State Government dated 22nd December 1977 under which the Kadi Municipality was ordered to be superseded. After this order, the petitioner filed a Civil Application No. 348 of 1998 before this Court and in this Civil Application, prayer has been made that the permission be granted to substitute the name of the petitioner from Smt. Jyotiben S. Shinde to Shri Bhupendrabhai A. Parikh as President of Kadi Municipality and to pursue the above proceedings. Further prayer has been made to stay the operation, implementation and execution of the order passed by respondent No. 1 on 22-12-1997, copy of which has been submitted by the learned Counsel for the respondent-State today in the Court and the copy of the same has also been filed by petitioner along with this Civil Application. So, in the Civil Application, twofold prayers have been made. One for substitution of another person in place of present petitioner and second for stay of the order dated 22nd December 1997. In the Special Civil Application, prayer has been made for setting aside or quashing of the show-cause notice and further prayer has been made for issuing writ of Prohibition restraining the respondent No. 1 from passing any order pursuant to the aforesaid show-cause notice. So in the Special Civil Application, there could not have been any prayer for quashing of the order which has to be passed ultimately in the proceedings. In the Civil Application, the petitioner has not prayed for amendment of the Special Civil Application and to challenge the order dated 22nd December 1997. In the Civil Application only prayer which has been made is for stay of operation or implementation or execution of the said order and not for quashing of the said order. The show-cause notice, which is the subject - matter of challenge in the Special Civil Application has now been culminated in final order and as such, this Special Civil Application has become infructuous. The petitioner has to challenge the final order passed and for that challenge two courses would have been available to the petitioner, i.e., either to amend the Special Civil Application or to file fresh Special Civil Application, but the petitioner has not chosen any of these courses and she felt contended only by making an application by way of Civil Application for stay of the operation, implementation and execution of the order dated 22nd December 1997. Even the prayer has not been made for amendment of the Special Civil Application giving out therein necessary grounds for challenge to the order dated 22nd December 1997. The Special Civil Application, after the respondents passed the final order, in the form as it is framed and to the extent where the prayer has been made therein, now no more survive. The subjectmatter of challenge in the Special Civil Application also no more survive as the show-cause notice merges in the final order passed on 22nd December 1997 and unless that order is challenged, I fail to see how these proceedings can be allowed to continue. The Civil Application is not a substantive petition but it is only an interlocutory application in the main Special Civil Application. Otherwise also, the petitioner cannot make a prayer in the Civil Application beyond the scope and subject-matter of the Special Civil Application. I fail to understand how without challenging the order dated 22nd December 1997, and without making any prayer for quashing of the said order by way of Civil Application, a prayer can be entertained and granted for stay of the operation, implementation and execution of the aforesaid order.