Gujarat High Court
Dalwadi Shaileshbhai Ratilal vs Commissioner Municipality on 20 January, 2022
Author: A.J.Desai
Bench: A.J.Desai
C/LPA/1106/2021 ORDER DATED: 20/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1106 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 18544 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/LETTERS PATENT APPEAL NO. 1106 of 2021
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DALWADI SHAILESHBHAI RATILAL
Versus
COMMISSIONER MUNICIPALITY
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Appearance:
MR NAMAN K BRAHMBHATT(11307) for the Appellant(s) No. 1
for the Respondent(s) No. 1
MR DINESHKUMAR D GAUTAM(9549) for the Respondent(s) No. 7
MR DIPEN DESAI(2481) for the Respondent(s) No. 3,4,5,6
MR HARIBHAI J PATEL(9810) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 20/01/2022
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.J.DESAI)
1. Admit. With the consent of learned advocates appearing for the parties, the appeal is taken up for final hearing.
2. By way of present Letters Patent Appeal under Clause 15 of the Letters Patent, the appellant - original respondent No.4 has challenged an order dated 15.12.2021 passed by the learned Single Judge in Civil Application (For Orders) No. 3 of 2021 filed in the captioned writ petition by which the learned Single Judge, after hearing the learned advocates for the respective parties, accepted the application and granted the relief as prayed for in the Civil Application, which reads as under:-
Page 1 of 7 Downloaded on : Tue Jan 25 20:27:08 IST 2022C/LPA/1106/2021 ORDER DATED: 20/01/2022 "(A) Pending final hearing and disposal of Special Civil Application No.18544 of 2021, this Hon'ble Court be pleased to stay the execution, operation and implementation and further process pursuant to the order dated 08.12.2021 and the agenda notice dated 08.12.2021 issued by the Collector, Kheda, annexed at Annexure-B Collectively to this application, and thereby be pleased to restrain the Collector, Kheda or any officer subordinate to him, from holding the elections for the post of President of Dakor Municipality."
3. Learned senior counsel Mr. Percy Kavina has raised an issue with regard to the hearing of the application by which the original petitioners sought the stay against the election of Dakor Nagarpalika for which the programme was issued by order dated 08.12.2021 and the election was to be held on 16.12.2021. It was submitted that the petitioners, at the time of filing a writ petition, had challenged order dated 30.11.2021 passed by Commissioner, Municipalities Administration by which the petitioners were removed as members of Dakor Nagarpalika, exercising powers under Section 37 of the Gujarat Municipalities Act, 1963.
It was submitted by learned Senior Counsel Mr. Percy Kavina that the declaration of election program of President of Dakor Municipality is an independent cause and, therefore, the original petitioner ought to have filed a writ petition seeking quashment of the said election which was proposed to be held on 16.12.2021. He would further submit that neither the original petitioner filed an independent petition nor made a request for amending the prayers in the writ petition and sought substantive reliefs in the writ petition, filed an application which was decided on 15.12.2021 by which stay of Election of Municipality sought for and therefore, in view of the list of sitting of the Judges which suggests the roster of the cases to be dealt with [issued on 11.11.2021 by the Registrar (Judicial) under the orders of the Page 2 of 7 Downloaded on : Tue Jan 25 20:27:08 IST 2022 C/LPA/1106/2021 ORDER DATED: 20/01/2022 Hon'ble Chief Justice], the learned Single Judge who has passed the order, ought not to have heard the Civil Application in view of the roster the election matters were to be heard by the another learned Single Judge. He has taken us through the business allotted to different courts and in the present case, it is 11 th Court and 18th Court. He would submit that as per the roster, the cases which are to be dealt with by the particular learned Single Judge are under the Municipalities Act, whereas the roster of the matters including Election matters were required to be decided by the learned Single Judge is of 18th Court.
4. When the issue was raised, we called for the information from the Registrar (Judicial). In pursuance thereof, office note dated 13.01.2022 is placed before this Court along with the list describing the cases to be taken up under particular Act, Code etc. The Registry has submitted that the matters are being listed as per the said bifurcation since 26.11.2001 onward.
We have gone through the office note which reads as under :-
"This is regarding placement of the matter before Hon'ble Court.
In this regard, this is respectfully submitted that, the matters of Writ Petitions/Special Civil Applications have been classified in three different groups i. e. Group-I, Group-II and Group-III as per Annexure at Flag-A in view of the same, Election Disputes/Determination of Validity of Election (S.14) under the Head Gujarat Municipalities Act has been classified under Group-II. It is further submitted that, since year 2001 (as per copy of Roster kept at Flag-B"), the SCAs/Writ Petitions (Non- service) matter of Group-II (BPMC Act, Municipalities Act, Panchayats Act, Cantonments & Notified Area Committees and Town Planning Act - matters pertaining to all local authorities) have been assigned to Single Judge and therefore, the CA-3/2021 in SCA- 18544/2021 (matter under challenge in caption LPA) Page 3 of 7 Downloaded on : Tue Jan 25 20:27:08 IST 2022 C/LPA/1106/2021 ORDER DATED: 20/01/2022 was placed before the same Single Judge who have been assigned the Writ Petitions.
In this connection, it is submitted that, captioned LPA (Non-service) is filed challenging the order passed in CA (for orders) in SCA (under Gujarat Municipalities Act) and as per present Roster, LPA (Non-service) matters are assigned to the Hon'ble Court (Coram :
Honourable Mr. Justice A. J. Desai and Honourable Mr. Justice Aniruddha P. Mayee).
This is therefore respectfully submitted before the Honourable Court."
5. The roster of 11th Court and 18th Court which commenced from 15.11.2021 reads as under :-
Eleventh Court ADMISSION & FINAL HEARING Hon'ble....... 1. Matters relating to Local Authorities under:-
I. The BPMC Act.
II. The Municipalities Act. III. The Gujarat Town Planning and Urban Development Act.
IV. The Panchayats Act.
V. Any other Act relating to Local Authorities and members of Local Authorities (other than matters specified elsewhere) including SCAs relating to Building Use Permission and / or Electric Connection and Erection and/or Demolition of Buildings or Structures, etc.
2. RERA Appeals.
3. All matters relating to foreign awards of Arbitration and Conciliation Act.
4. Arbitration matters not assigned to any other Courts.
Eighteenth ADMISSION & FINAL HEARING
Court
1. SCA (Non-Service) Group-III
Hon'ble......... (which are not specified in Group I and II)
including the matters relating to the
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C/LPA/1106/2021 ORDER DATED: 20/01/2022
Stamp Act, Advocates Act, Electricity Act, Registration of Birth and Death Act, Motor Vehicles Act, Essential Commodities Act, Notaries Act, Cinema Act and Wakf Act, Passport Act, the Right to Information Act, the Bombay Police Act, Public Trusts Act, Mines and Minerals Act, Trade Marks Act, Earth Quake Matters, The Gujarat Public Works Contracts Disputes Arbitration Tribunal Act, 1992 and other Miscellaneous Acts).
2. Election matters (other than to be heard by Division Bench).
6. As per the information supplied by the Registry, following cases are to be treated under Gujarat Municipalities Act :-
(1) Constitution of Municipalities
(2) Qualification/Disqualification of Councilor
(3) Election Disputes/Determination of Validity
of Election (S.14)
(4) Resignation of President, Vice President and
Councilor
(5) Motion of No Confidence against President, Vice
President (S.36)
(6) Removal of the President, Vice President or
Councilor (S.37)
(7) Suspension of President/Vice President (S.40)
(8) Allotment/Sale of land by the Municipality
without prior permission of the Collector/State Government.
(9) Assessment of Municipal Taxes/Property Taxes/Education Cess etc. (10) Octroi and Contract to Recover Octroi to Private Agencies Page 5 of 7 Downloaded on : Tue Jan 25 20:27:08 IST 2022 C/LPA/1106/2021 ORDER DATED: 20/01/2022 (11) Lump-sum Octroi (12) Removal/demolition of unauthorized Construction (13) Miscellaneous matters.
7. Under several Acts, similar details are supplied by the Registry. This practice is being adopted and the cases are being decided by the learned Single Judge accordingly. Hence, we are of the opinion that the learned Single Judge to whom it was requested to deal with the cases and in particular, the present case under the Municipalities Act which pertains to the election disputes/determination of validity of election, such petition would go before the Judge who is taking up the matters under the Municipalities Act. The learned Single Judge of having roster of Elections specifically made it clear that only those matters which are not to be decided by the Division Bench, are to be dealt with by the learned Single Judge.
8. The Registry is therefore hereby directed that in future, whenever the writ petitions are filed, the information supplied along with the Note shall be examined by the competent officer and shall be listed as per the current roster.
9. As far as the merits of this case is concerned, considering the fact that no substantial relief was prayed for by the petitioners in consonance with the interim relief which was sought in the Civil Application and it has been accepted, without going into the merits of the case, we hereby quash and set aside the order impugned in the matter. We have not dealt with the issue raised by the appellant that an independent petition ought to have been filed by the original petitioner but we left it open to the discretion of learned Single Judge to decide the said issue, if so arises in the Page 6 of 7 Downloaded on : Tue Jan 25 20:27:08 IST 2022 C/LPA/1106/2021 ORDER DATED: 20/01/2022 aforesaid writ petition. It would be open for the petitioners to do the needful as advised.
10. The respondent Government authority is further directed not to issue fresh election programme before 08.02.2022. It would be open for the applicants - original petitioners to request for interim relief which was prayed in the original petition or any other relief.
11. It is expected from the officer to comply with the direction issued by the learned Single Judge. Since the petition is kept for hearing on 21.01.2022, it is also expected from all the parties that they shall cooperate and proceed with the matter.
12. In view of above, the present Letters Patent Appeal and the Civil Application for stay filed therein, both stand disposed of.
(A.J.DESAI, J) (ANIRUDDHA P. MAYEE, J.) cmk Page 7 of 7 Downloaded on : Tue Jan 25 20:27:08 IST 2022