Gujarat High Court
Balvantbhai Chhogaji Barot vs State Of Gujarat on 14 February, 2019
Author: Anant S. Dave
Bench: Anant S. Dave, Biren Vaishnav
C/LPA/157/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 157 of 2018
In R/SPECIAL CIVIL APPLICATION NO. 1696 of 2018
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2018
In R/LETTERS PATENT APPEAL NO. 157 of 2018
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BALVANTBHAI CHHOGAJI BAROT
Versus
STATE OF GUJARAT
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Appearance:
MR DIPEN DESAI(2481) for the PETITIONER(s) No. 1
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP(99) for the
RESPONDENT(s) No. 1
MR ANKIT Y BACHANI(5424) for the RESPONDENT(s) No. 4
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 2,3,5
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CORAM: HONOURABLE THE ACTING CHIEF JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 14/02/2019
ORAL ORDER
(PER : HONOURABLE THE ACTING CHIEF JUSTICE ANANT S. DAVE)
1. In this appeal under clause-15 of the Letters Patent, challenge is to the oral order dated 30th January, 2018 passed by learned single Judge in Special Civil Application No. 1696 of 2018.
2. Before learned single Judge, challenge was to the order dated 22.1.2018 passed by respondent No.3-Collector, Banaskahtha, whereby respondent No.3 declared the appellant-original petitioner disqualified as Councilor, Dhanera Municipality under the provisions contained in section 38(a) read with section 11(1)(h) of the Gujarat Municipalities Act, 1963 ("the Act" for short).
Page 1 of 8 C/LPA/157/2018 ORDER3. Certain facts recorded by learned single Judge in para-2 of the above order are not, as such, in dispute.
4. Before the learned single Judge, contention which was raised basically about second child of the petitioner who was missing and not traced out and, therefore, it could not have been concluded that the petitioner had three children, incurring disqualification prescribed in section 11(1)(h) of the Act. Second ground on which the order passed by the Collector was challenged was that the Collector had prima facie sought an opinion of the appellate authority, namely, Director of Municipalities and such opinion had influenced the decision making process of the Collector and in absence of application of mind and satisfaction of the Collector about the fact scenario, namely, whether provisions of section 11(1)(h) were attracted or not, could not have been said to be property addressed.
5. Learned single Judge, adverting to the rival contentions clearly noticed that petitioner had three children and in absence of any provision in section 11(1)(h) about missing or kidnapped child, no benefit could be given to petitioner and therefore, petitioner had incurred disqualification so contemplated in section 38(a) read with section 11(1)(h) of the Act.
6. Before this Court, Shri Dipen Desai, learned advocate for the appellant, while assailing the above order passed by learned single Judge reiterated the contentions as were raised in the writ petition and submitted that the appellant-original petitioner was Councilor of Dhanera Page 2 of 8 C/LPA/157/2018 ORDER Municipality since 2008 and even thereafter got elected in the year 2013 and was also President of Dhanera Municipality from 2013 to 2015. It is submitted that for missing child of the appellant, FIR being CR I 48 of 2013 was lodged and in spite of best efforts by investigating agency, whereabouts of his child were not known and therefore, considering the language of section 11(1)(h) of the Gujarat Municipalities Act, 1963, namely, "who has more than two children", no embargo would be pressed into service of having more than two children since at the relevant time, the petitioner had only two children. Besides, seeking an opinion or advice from the superior authority by the Collector has vitiated the decision making process at the hands of respondent No.3-Collector and therefore, it cannot be said that the order passed by respondent No.3 is a result of application of mind independent of the opinion so given by the Director of Municipalities, which is otherwise, appellate authority under the Act.
7. Thus, at the end of the competent authority, while exercising power under section 38(a) of the Act he ought not to have disqualified the petitioner as councilor depriving him of valuable opportunity to prefer an appeal before the appellate authority, which has, otherwise, pre- judged the issue by rendering advice/opinion to the Collector. In view of the above, opinion formed by the Collector and the decision taken by him is completely guided by the opinion and advice of the Director of Municipalities, which is superior authority, and therefore, the order impugned deserves to be quashed and set aside.
Page 3 of 8 C/LPA/157/2018 ORDER8. In support of his above submissions, our attention is drawn to a decision of the Apex Court in the case of State of M.P. and others vs. Sanjay Nagayach and others reported in (2013) 7 Supreme Court Cases 25, wherein, in paragraph-36, the Apex Court has observed that statutory functionaries while exercising powers must be above suspicion and function independently without external pressure and when an authority invested with the power purports to act on its own but in substance the power is exercised by external guidance or pressure, it would amount to non-exercise of power, statutorily vested. Thus, it is submitted that the order passed by learned single Judge deserves to be quashed and set aside. Reliance is placed on paragraph-36 of the above judgment, which reads as under:-
"Statutory functionaries like the Registrar/Joint Registrar of cooperative societies functioning under the respective Cooperative Act must be above suspicion and function independently without external pressure. When an authority invested with the power purports to act on its own but in substance the power is exercised by external guidance or pressure, it would amount to non-exercise of power, statutorily vested. Large number of cases are coming up before this Court and the High Courts in the country challenging the orders of supersession and many of them are being passed by the statutory functionaries due to external influence ignoring the fact that they are ousting a democratically elected Board, the consequence of which is also grave Page 4 of 8 C/LPA/157/2018 ORDER because the members of the Board of Directors would also stand disqualified in standing for the succeeding election as well."
9. As against the above, Ms. Nisha M. Thakore, learned Assistant Government Pleader and Mr. Ankit Bachani, learned advocate appearing for respondent No.4 would contend that the fact situation which remains undisputed is that petitioner has three children and either second son of the petitioner is missing or kidnapped or even not available at present, is no ground for not attracting the provision under section 11(1)(h) of the Act and the learned single Judge has not committed any error warranting interference by this Court in this appeal under clause-15 of the Letters Patent and hence, the appeal deserves to be dismissed.
10. Having regard to the facts and circumstances of the case, submissions canvassed as above in the backdrop of challenge to the order passed by learned single Judge and on a careful perusal and consideration of the entire record of the appeal, we find that section 11(1)(h) prescribes general disqualification for becoming a councilor. Section 11(1)(h) reads as under:
"11. General disqualification for becoming a councilor: (1) No person may be a councilor who has more than two children:
Provided that a person having more than two children on the date of commencement of the Gujarat Local Authorities Laws (Amendment) Act, 2005 (Guj. 17 Page 5 of 8 C/LPA/157/2018 ORDER of 2005) (hereinafter in this clause referred to as "the date of such commencement") shall not be disqualified under this clause, so long as the number of children he had on the date of such commencement does not increase:
Provided further that a child or more than one child born in a single delivery within the period of one year from the date of such commencement shall not be taken into consideration for the purpose of disqualification under this clause.
Explanation.-- For the purpose of this clause,--
(a) to (g) xxx xxx xxx
(i) where a couple has only one child on or after the date of such commencement, any number of children born out of single subsequent delivery shall be deemed to be one entity;
(ii) 'child' does not include an adopted child or children."
10.1 From the above provision, it is clear that no person may be a councilor who has more than two children. From the entire evidence including the certificates of birth of the children of the petitioner, it is clearly established that the petitioner has three children. The contention raised by learned advocate for appellant is only on the ground that out of three children of the petitioner, one child is missing and his whereabouts are not known in spite of best efforts by the investigating agencies. Learned single Judge has rightly held that in absence of such situation, namely, in case of missing child, discount cannot be given to a person from the rigor of section 11(1)(h) of the Act. Further, Page 6 of 8 C/LPA/157/2018 ORDER seeking advisory opinion in such case about applicability of the provision by itself, cannot be said to be a ground on which exercise of power under section 38(a) of the Act gets vitiated. Right of appeal of the appellant is not taken away and both the authorities, namely, the competent authority as well as the appellate authority can decide the issue based on their understanding of facts and law.
11. Decision of the Apex Court relied on by learned advocate for the appellant in the case of State of M.P. and others (supra) has no bearing on the facts of this case, inasmuch as the above decision had genesis in the backdrop of facts of supercession of an elected body of Board of Directors of a District Cooperative Bank and powers of Registrar/Joint Registrar conferred wherein, before exercising power, Registrar/Joint Registrar was to enter into meaningful and effective consultation and thereafter opinion was to be formed by the Registrar. The observation made in paragraph-36 of the above judgment, on which reliance is placed by learned advocate for the appellant, as such, cannot be termed as ratio decidendi with which we are in respectful agreement. Thus, we are of the view that above judgment has no bearing on the facts of the case and does not help the case of the appellant.
12. Considering the provisions of section 38(a) read with section 11(1)(h) of the Act and the findings and reasonings of the learned single Judge in the order impugned, we are of the view that appeal is bereft of merits. Accordingly, letters patent appeal is dismissed. Consequently, connected civil application for stay stands disposed of.
Page 7 of 8 C/LPA/157/2018 ORDERInterim relief granted earlier stands vacated.
13. At this stage, learned advocate for the appellant requests to continue the interim relief granted earlier for two weeks more. The request is refused.
(ANANT S. DAVE, ACJ) (BIREN VAISHNAV, J) A.M. PIRZADA Page 8 of 8