Gujarat High Court
Karsanbhai R. Patel vs Ahmedabad Municipal Corporation And ... on 19 December, 1988
Equivalent citations: (1989)2GLR782
JUDGMENT P.R. Gokulakrishnan, C.J.
1. Rule in all these pennons. In this group of petitions, a question of considerable importance arises as follows Is it mandatory on the part of the State Government to remove the Municipal Commissioner from office forthwith in view of Section 36(3) of the Bomhay Provincial Municipal Corporations Act. 1949, if at a meeting of the Corporation not less than five-eighth of the whole number of councillors vote in favour of a resolution requiring his removal?
2. As common questions were involved, the petitions have been heard together and the same are being disposed of by this common judgment.
3. Special Civil Applications Nos. 5778 of 1988 and 5891 of 1988 are more or less similar and the reliefs prayed therein are also similar. The same so far as are relevant for the present purpose are as under:
Special Civil Application No. 5778 of 1988:
12(1) that writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside resolution Annexure 'A' and to restrain respondent Nos. 1 and 2 from entertaining, discussing and passing resolution Anneuxre 'A' may kindly be granted;
(ii) to declare ultra vires Section 36(3) la so far as it relates to the question of the removal of Municipal Commissioner who is a Government servant or who holds lien in Government service by the Municipal Corporation;
(iii) to institute suitable inquiry in the question of failure to prevent and control the epidemic and to fix responsibilities for the same;
(iii-A) A writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction may kindly be granted quashing and setting aside the impugned resolution dated 26-8-1988 at Annexure 'B' passed by the General Board of the Ahmedabad Municipal Corporation;
(iii-B) A writ of mandamus or a writ in the nature of mandamus or any other appropriate writ order or direction may kindly be granted, directing the State Government not to act in accordance with the unlawful resolutions Annexures 'A and B' passed by the 1st and 2nd respondents;
(iii-C) A writ of mandamus or a writ in the nature of mandamus of any other appropriate writ, order or direction may kindly be granted directing the State Government to inquire into the correctness of the allegations and institutions and the contents made in the resolutions at Annexures 'A and B' and to decide whether the aforesaid resolutions should be accepted or not;
Special Civil Application No. 5891 of 1988:
15(A) A writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the impugned resolution at Annexure 'A' dated 26-8-1988 passed by the Standing Committee of the Ahmedabad Municipal Corporation and the impugned resolution dated 26-8-1988 passed by the General Board of the Ahmedabad Municipal Corporation;
(B) This Hon'ble Court may be pleased to declare Section 36 Sub-section (3) of the Bombay Provincial Municipal Corporations Act, 1949 in so far as it relates to the question of the removal of the Municipal Commissioner by the resolution passed by 5/8th majority of the whole number of the councillors of the Municipal Corporation as unconstitutional;
(C) A writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction may kindly be granted, directing the State Government not to act in accordance with the unlawful resolutions Annexures 'A and B' passed by the second and third respondents.
(D) A writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction may kindly be granted directing the State Government to inquire into the correctness of the allegations and insinuations and the contents made in the resolutions at Annexures A and B' and to decide whether the aforesaid resolutions should be accepted or not;
4. Special Civil Applications Nos. 5791 of 1988 and 6381 of 1988 are so to say rival petitions, wherein reliefs which are contrary to the reliefs in the aforesard Special Civil Applications Nos. 5778 of 1988 and 5891 of 1988 have been prayed. The same so far as are relevant for the present purpose are as under:
Special Civil Application No. 5791 of 1988:
6(A). To issue writ of mandamus and/or direction to implement the resolution at Annexure 'A' and to appoint new Municipal Commissioner required under Sections 36(1) and 36(2) to respondent No. 1 i.e. the State Government.
Special Civil Application No. 6381 of 1988:
25(A). Be pleased to issue a writ of mandamus or any other appropriate writ. order or direction in the nature of mandamus by directing respondent No. 1 to forthwith recall, withdraw or remove the respondent No. 2 from the Office of Municipal Commissioner;
5. In order to appreciate the rival contentions, a few relevant facts are required to be stated. It is not in dispute before us that on 26-8-1988 the said Corporation has passed a resolution in its meeting where not less than five-eights of the whole number of councillors have voted in favour of the resolution requiring removal from the office of the Commissioner. It is also not in dispute that the fact that such a resolution has been so passed has been brought to the notice of the State Government and in any event, the State Government became aware of the said fact before the Special Civil Application No. 6381 of 1988 was filed. It is further not in dispute that the State Government has not acted pursuant to the said resolution so far.
6. The Municipal Commissioner is an authority as per Section 4 of the Bombay Provincial Municipal Corporations Act, 1949, (hereinafter referred to as 'the Act' for brevity's sake). As per the said Section, he is one of the Municipal Authorities, who is charged with carrying out the provisions of the Act for each City. As per Section 36 of the Act, the Municipal Commissioner is to be appointed by the State Government. Under Section 4, the Transport Manager in the event of the Corporation establishing or acquiring a transport undertaking is also one of the authorities. Under Section 40 of the Act, in the event of the Corporation acquiring or establishing a transport undertaking a Transport Manager has to be appointed by the Corporation subject to the approval of the State Government and he shall receive such monthly salary and allowances as the Corporation shall from time to time with the approval of the State Government determine, provided that the salary of the Transport Manager shall not be altered to his disadvantage during his period of office. It is, therefore, to be appreciated that while the Municipal Commissioner is to be appointed by the State Government as staled above, a Transport Manager has to be appointed by the Corporation, subject to the approval of the State Government. In other words, the appointing auihority in the case of the Municipal Commissioner is the State Government while the appointing authority in the case of the Transport Manager is the Corporation, as stated above.
7. The various provisions of the Act and the Rules clearly bring out that the Municipal Commissioner is having a central position so far as the administration of the Corporation is concerned. It is also clear that the Municipal Commissioner is not under the direct authority and power of the Corporation, since he is to be appointed from time to time by the State Government. It is also clear from the various provisions of the Act and the Rules that subject to the provisions of the Act and the Rules, the Municipal Commissioner has to act and is authorised to act independently of the Corporation in the matter of administration. It cannot be gainsaid that the Corporation is not having any direct control on the Municipal Commissioner considering the scheme of the Act since the Commissioner is to be appointed by the State Government.
8. Under Section 4 of the Act, the Corporation is also an authority and as per Section 5 of the Act, each Corporation shall consist of such number of councillors elected at ward elections as the State Government may from time to time by notification in the official gazette fix. The Corporation, therefore consists of elected councillors.
Section 36 of the Act provides as under:
36. (1) The Commissioner shall from time to time be appointed by the State Government.
(2) The Commissioner shall in the first instance hold office for such period not exceeding three years as the State Government may fix and his appointment may be renewed from time to time for a period not exceeding three years at a time.
(3) Notwithstanding the provisions of Sub-section (2) the Commissioner may at any time, if he holds a lien on the service of the Government be recalled to such service, after consultation with the Corporation and may further at any time be removed from office by the State Government for incapacity, misconduct or neglect of duty and shall forthwith be so removed if at a meeting of the Corporation not less than five-eights of the whole number of councillors vote in favour of a resolution requiring his removal.
9. Section 36(1) of the Act ordains that the Commissioner shall be appointed by the State Government and by none else. This section does not put any restriction regarding the persons who can be appointed as Commissioners. Under this section, the State Government can appoint a member of the I.A.S. cadre to the Commissioner or it can appoint anyone from outside that cadre. The all important aspect to be noted is that it is the State Government and none else which has been recognised under the statute as the appointing authority in the case of a Commissioner. The State Government, being an appointing authority is, therefore, a disciplinary authority in the case of the Commissioner.
10. Section 36(2) provides for the term of office of the Commissioner
11. Section 36(3) commences with a non obstante clause. It envisages three different sets of circumstances affecting the office of the Commissioner notwithstanding the aforesaid provisions of Section 36(2).
12. The first set of circumstances envisaged by Section 36(3) is that the Commissioner may at any time if he holds a lien on the service of the Government be recalled to such service by the Government after consultation with the Corporation. It can be seen that this part of Section 36(3) is independent set of circumstances, which set of circumstances is not connected with the other parts of the said sub-section. The second set of circumstances envisaged by Section 36(3) is that the Commissioner may further at any time be removed from the office by the State Government for incapacity, misconduct or neglect of duty. So far as this aspect is concerned, the State Government, namely, the appointing authority, if it is of the opinion that the Commissioner should be removed from office on account of all or any of the aforesaid three grounds, namely, incapacity, misconduct or neglect of duty, it can do so as an appointing authority. It is noteworthy that what is provided here is "removal from office" of the Commissioner and not removal from service itself. Since a Commissioner can be appointed by the State Government from persons who may not have been in Government service previously, if the State Government as the appointing authority chooses to exercise the power under this part, then in such a case it may amount to removal from service, even if the order prima facie provides from removal from office, if the State Government does not choose to act differently as an appointing authority. This, however, will not make any difference, because the State Government would be acting in both the cases, namely, when a Commissioner is appointed from the aforesaid cadre or when the Commissioner is appointed from outside the cadre, as an appointing authority; and, when the State Government acts as an appointing authority with respect to either of the aforesaid persons, then it goes without saying that it will have to do as per the particular provisions regarding service jurisprudence and after following the prescribed procedure. It is to be noticed that the State Government, as per Section 36(3), when it acts either under the aforesaid first set of circumstances or under the aforesaid second set of circumstances, it is doing so as an appointing and disciplinary authority. While acting in the aforesaid second set of circumstances, it would be entirely within the power and authority of the State Government either to remove the person concerned from office or to remove him from service or to accommodate such a Commissioner elsewhere. Except the limited scope which the Corporation has when the State Government exercises the power of recall of the Commissioner under the aforesaid first set of circumstances the Corporation under the said first and second set of circumstances has no say in the matter at all: and so. the State Government is almost entirely free to act as it chooses subject to the provisions of service jurisprudence and Rules, which may be applicable in the case of a Commissioner. In the case of the aforesaid second set of circumstances, the provision is an enabling provision and the State Government has power of removal from service of a Commissioner if it is of the opinion that a case has been made out under the said sub-section against the Commissioner. It goes without saying that the State Government, being an appointing authority, will have to follow the prescribed Rules, if there be any, and in the absence of such Rules, Rules of natural justice must be followed before exercising the said power under the aforesaid second set of circumstances.
13. This brings us to the said third set of circumstances. As seen above, so far as the aforesaid second set of circumstances is concerned the State Government as an appointing authority has option to exercise the said power of removal or not to exercise the said power of removal if it is of the opinion that a case exists against the Commissioner under the said second set of circumstances. In other words, the State Government has a discretion in the matter if a case exists under the second set of circumstances. The third set of circumstances envisaged by Section 36(3) seems to be in sharp contrast with the said second part. It is to be noted that so far as Sub-sections (1) and (2) of Section 36 are concerned, the entire power has been given to the State Government as an appointing authority. This very Legislature when it came to enact Sub-section (3) of Section 36, in the first part thereof has also left the matter to the State Government as an appointing authority in the matter of recalling the Commissioner and the only restriction that has been placed is that before doing so the Corporation should be consulted. So far as the second set of circumstances under Sub-section (3) of Section 36 are concerned, power has been entrusted to the State Government as an appointing and disciplinary authority to be exercised as such in the case of the Commissioner. In the aforesaid first set of circumstances and the second set of circumstances under Sub-section (3) of Section 36, the Legislature has not used such words in the context of the State as "shall" and "forthwith". The word used in the aforesaid first set of circumstances and the second set of circumstances provided under Sub-section (3) is "may". Regarding the aforesaid third set of circumstances, the Legislature has in the context of the State not only used the words "shall" and "forthwith", but has also provided that the Commissioner should be so removed, meaning thereby "removal from, office", if at a meeting of the Corporation not less than 5/8ths of the whole number of councillors vote in favour of a resolution requiring his removal. Seeing, the third act of circumstances, it is also evident that such a provision has been made in the case of the Corporation, who is neither an appointing authority nor a disciplinary authority in the case of the Commissioner. It is also to be noted that in the third set of circumstances Legislature does not speak to removing the Commissioner from sevice. It only speaks of "removing him from office"' which is also the expresston which the Legislature has used in connection with the aforesaid second set of circumstances. Furthermore, if the State Government removes a Commissioner from office, because of such a resolution it cannot mean that it has done so because the contents of the said resolution are accepted by it to be true. If the State Government removes the Commissioner from office pursuant to such a resolution, it can only mean that it has done so because the statute mandatorily required it to do so when it came to its notice that such a resolution has been passed by the Corporation with the requisite majority. This provision nowhere states that the contents of such resolution are binding on the State Government. In fact, it would seem that the Legislature has not thought it necessary to so provide for the simple reason that the Corporation is not the appointing authority under the statute. All that the said third set of circumstances provides is that if such a resolution is passed by 5/8ths majority, then it is ordained on the State Govt, by the statute that it must enforce and give effect to such a resolution forthwith and remove such a Commissioner from office. There is nothing in this third set of circumstances provided under Section 36(3) so as to prevent the State Government from making it clear that it does not endorse the contents of the resolution and also that it does not accept the facts stated therein against the Commissioner to be true and that it is giving effect to the said resolution forthwith, as the said sub-section mentioned requires it to do so. It would seem in connection with this part of Section 36(3) that the statute wants that the opinion of the elected body, namely, the Corporation expressed through five-sights majority, should be recognised and acted upon by the State forthwith. This part of the said Section 36(3) clearly indicates that the Legislature in so providing is not keeping the opinion of the State Government in mind when there is a resolution of the elected body passed by five eights majority. The word "forthwith" clearly indicates that the State Government is not required to pause, but is required to act forthwith, once it is brought to its notice that such a resolution has been passed. It also seems that it would be open to the State Government not to take any action, except removing the Commissioner from office, against the Commissioner in such a contingency. It also seems that in the aforesaid third set of circumstances even the elected body, namely, the Corporation, cannot require the State Government to remove such a Commissioner from service Under this set of circumstances all that the elected body can require is the removal of such Commissioner from office, forthwith, without more.
14. In this connection, it is necessary to examine as to whether a person acting as Municipal Commissioner is appointed by the State Government from Government servants or is appointed by the State Government from persons, who are not Government servants. As seen hereinabove, the State Government is the appointing authority as well as the disciplinary authority in both the aforesaid cases. The Corporation in either of the aforesaid cases is not the appointing authority. Furthermore, the terms and conditions of appointment in both the cases would be fixed by the State Government and the Corporation will have no say in the matter. Besides, if a person is appointed as a Municipal Commissioner by the State Government from persons who are not Government servants, then such a person knows that he is appointed as a Municipal Commissioner subject to the provisions of the said Act and Rules, which would naturally include the aforesaid third set of circumstances provided under Section 36(3). Such a person knows from of his appointment that he is liable to be removed from office if a contingency as envisaged by the aforesaid third set of circumstances comes into existence. It is open to him before he is appointed and before accepting such an appointment to ask the State Government to provide suitably (stability) for him. in case the Corporation exercises the power under the aforesaid third set of circumstances. If, however, he has not stipulated in this connection with the State Government before accepting the office as the Municipal Commissioner or if the State Government has appointed him without agreeing to make an alternative arrangement for him before appointing him, and he has accepted such appointment without a demur, then in such a case he has to step down from service and not merely from office; but that event occurs not because the statute so requires under the said third set of circumstances but because he has not been careful enough to safeguard his own interest before accepting to be a Municipal Commissioner, who is bound by the provision made by the statute in the third set of circumstances. In the aforesaid view of the matter, in our opinion, it would not make any difference at all as to whether the Municipal Commissioner is appointed from the class of Government servants or he is appointed from persons who are not Government servants. In our view therefore the third set of circumstances would equally apply both to Commissioners, who are appointed from amongst the Government servants as also to those who are appointed from amongst persons who are not Government servants.
15. Mr. Vakharia, learned Advocate for the petitioners in Special Civil Application Nos. 5778 and 5891 of 1988, has submitted that the aforesaid resolution passed by the Corporation attaches a stigma to the Commissioner and as such he cannot be removed without giving an opportunity to offer his explanation. He has proceeded to further submit that five-eighths majority, which is empowered to pass the resolution for removing the Commissioner from his office under Section 36(3) has to be read in consonance with the principles of natural justice and even if such a resolution is passed by five-eighths majority, the section has to be read as if there is inbuilt provision to call for explanation from the person before be is removed from the office. His submission further is that if such inbuilt provision is not read into part 3 of Sub-section (3) of Section 36 of the Act. the said part 3 of Sub-section (3) of Ssc. 36 will be hit by Article 14 of the Constitution of India.
16. In this connection, it is pertinent to emphasise that the Corporation which has passed the said resolution is not an appointing authority. For the purpose of those petitions, we have asked the Advocates concerned to proceed on the footing that the said resolution does contain allegations against the Commissioner, which can be characterised as stigma. The moot question, however, is as to whether the allegations made in the said resolution against the Commissioner. which mount to stigma, have been made by the appointing authority The answer is clearly in the negative, since the Corporation is not the appointing authority. Not only so. as stated hereinabove, the statute does not require the appointing authority, namely, the State Government, to act on the said resolution because the allegations made in the resolution are true or are binding on the State Government. What the statute provides is that the appointing authority has to remove the Commissioner from office once such a resolution is passed by the elected body of the Corporation with the requisite five-eighths majority. The guiding force under the said third set of circumstances is not the truth or otherwise of the allegation made in such a resolution. In our opinion, the guiding force which compels the State Government to act is the fact that such a resolution has been passed by five-eighths majority of the elected body, namely, the Corporation. The said allegations amounting to stigma do not come from the authority which has appointed the Commissioner. The said allegations come from a Corporation which is not the appointing authority in the case of the Commissioner. The allegations made by the Corporation in the resolution are not required to be accepted as correct or true by the appointing authority as the statute nowhere so provides. In our opinion, therefore, the case clearly falls outside the purview of service jurisprudence as well as outside the purview of administrative law. There is also no scope for application of principles of natural justice when a case squarely falls under the said third set of circumstances. The word "forthwith" used in the third set of circumstances is clearly an indication to the effect that the State Government has to act because such a resolution is passed and that too without any delay. Since such allegations are made by a Corporation in the said resolution, which is not an appointing authority, no question at all arises of giving an opportunity to the Commissioner to tender his explanation regarding the allegations made before such a resolution can at all be passed by the Corporation. In our view, the Legislature has reposed full confidence in the opinion of the elected body, when it expresses itself through 5/8ths majority and has, therefore, not provided that the appointing authority has to sit in judgment over the said opinion; has to call for an explanation from the Commissioner; and has to act as an appointing and disciplinary authority against the Commissioner even when such a resolution is passed with the requisite majority. If such a construction put on behalf of the petitioners in the aforesaid two petitions is to be accepted, then, in our opinion it would frustrate the very purpose of the Legislature in providing as aforesaid in Section 36(3), namely, third set of circumstances, as it has done. We feel that the aforesaid third set of circumstances do not require to be examined either from the principles of service jurisprudence or from any principles of Administrative Law or in the background of any Rules of natural justice. We say so, also because the Legislature is presumed to know and be aware of the cardinal principles of service jurisprudence. Administrative Law and Rules of natural justice. When the Legislature has provided the said third set of circumstances as discussed hereinabove, it is apparent that it did not want the said third set of circumstances to fall within the purview of either of service jurisprudence or of administrative law or of principles of natural justice; and this is further clear from the fact that unlike in the case of the aforesaid first or second set of circumstances the Legislature has entrusted the power in the third set of circumstances not to the appointing authority, namely, the State Government, but to the Corporation, which is not the appointing authority in the case of the Commissioner, when it expresses itself through 5/8ths majority. In the aforesaid view of the matter, it is not possible to accept the submissions of Mr. Vakharia. In our opinion, therefore, it is not necessary at all when the Corporation acts under the third set of circumstances to call for an explanation from the Commissioner before it proceeds to pass such a resolution. There is no inbuilt provision in the aforesaid third set of circumstances to call for any explanation from the Commissioner when the State Govt, is called upon to act pursuant to a resolution under the third set of circumstances and remove the Commissioner from office. The provision made by the Legislature under the third set of circumstances, in our opinion, is not hit either by Article 14 or by Article 16 of the Constitution of India.
17. One of the submissions of Mr. Vakharia also was that the removal from the office of the Commissioner of any one can only be on the grounds of incapacity, misconduct or neglect of duty; and as such there must be incapacity, misconduct or neglect of duty on the part of the Municipal Commissioner before passing any resolution under the third set of circumstances; that if that be so, opportunity to be heard is a must and that if action is taken to remove the Commissioner without affording him an opportunity to explain the same would violate the principles of natural justice. Arguing further, Mr. Vakharia stated that the word "forthwith" occuring in the third set of circumstances will come into play only after the Government scrutinises the reasons given by the Corporation for removal and comes to the conclusion that there exists any one of the disqualifications, such as incapacity, misconduct or neglect of duty on the part of the Commissioner and that too, after giving an opportunity to him to explain the same. Mr. Vakharia has tried to get support for the aforesaid submissions from the words "so removed" found in the third set of circumstances, as. according to him, those words would mean "removal from office" as contemplated under the aforesaid second set of circumstances. To us. it appears that aforesaid submissions are fallacious and altogether without any foundation. In the first place, they ignore the legislative intent in providing the said third set of circumstances. Secondly, they overlook the conscious departure made by the Legislature in providing the third set of circumstances after provided the said first and second set of circumstances. Thirdly, they ignore the aspect that Legislature has not intented that anyone, even the State Government, should sit in judgment and examine when the Corporation, an elected body, has expressed itself by a resolution passed by 5/8ths majority of the total number of councillors. Fourthly, they fail to appreciate that there is really no inter-connection between second and third set of circumstances of the nature and kind that Mr. Vakharia has in mind. The only connecting words are "so removed". In our opinion, in the light of all the aforesaid, the words "so removed" can only mean removal from office as the words "from office" are also found in the said second set of circumstances. In our view, they also relate to the aspect that the Commissioner is to be removed from office once such a resolution is passed. The words "so removed" cannot and do not mean that a Commissioner has to be removed despite a resolution passed by the Corporation with the requisite majority only when the State Government finds any of the aforesaid three reasons, namely, incapacity, misconduct or neglect of duty, present and that too after giving an opportunity to him to explain. Such a construction suggested by Mr. Vakharia is totally inconsistent with the words "shall forthwith" that we only find in the aforesaid third set of circumstances. The said submissions of Mr. Vakharia are, therefore, without any force.
18. A further submission of Mr. Vakharia was that the removal from office not only attaches a stigma, but also is penal in consequence and it brings about loss in the status and also pecuniary loss. According to Mr. Vakharia, by passing the said resolution, the following stigma will attach to the Commissioner:
(1) He will have to be taken back;
(2) He will vacate the office with stigma;
(3) There will be initiation of some enquiry;
(4) It will affect the promotional avenue of the Commissioner;
(5) If it is transfer, it is a transfer with stigma and such transfers will have adverse consequences; and (6) The Resolution of a public body affects the public image of the Officer and that in addition if the Commissioner is a non-Govemment servant, the tenure of his office is curtailed and there will be pecuniary loss to the said person concerned;
19. As pointed out in the earlier part of this judgment, the State Goverment is an appointing authority in both the cases, namely, when it appoints a person as a Commissioner from Govt, servants, as also when it appoints a person as a commissioner from persons who are not Government servants. As pointed out earlier, the truth or otherwise of the contents of such a resolution are not binding on the Government as an appointing authority in both the cases, as the guiding force behind such a resolution is 5/8th majority. We have already pointed out hereinabove that there is nothing in the said third set of circumstances provided under Section 36(3) so as to prevent the State Government from making it clear that it does not endorse the contents of the resolution and accept them as true and it is giving effect to the same forthwith as there is a legislative mandate to do so. In our opinion, no stigma will ever attach to the Commissioner because of the said resolution, since the appointing authority which is the disciplinary authority, is not bound by the contents of such a resolution and is not required to accept them as true; but will be acting upon the same only because of the legislative intent. The Legislature has not intended that because of such a resolution, an enquiry be initiated against the Commissioner, The Legislature has not intended that by passing such a resolution, the promotional avenue of a Commissioner should be adversely affected. It is only when the appointing, authority at its discretion decides to hold an enquiry pursuant to such a resolution that the prospects of a Commissioner may be affected; but such consequences do not flow merely from the fact that the Corporation has passed such a resolution with the requisite majority.
20. It is also to be appreciated that if the Legislature had made the elected body to be the appointing authority in the case of Municipal Commissioner as in the case of the Transport Manager, then the Leislature would not have failed to provide for a proper opportunity to the Municipal Commissioner as per the Rules of natural justice or as per the Rules made in that behalf. Such, however, is not the case before us. In the next place, the statute making body cannot be presumed to be unaware that in a country like ours there may be one political party in power at the level of the State Government and a party of a different political colour at the level of the Corporations and Municipalities. The Act clearly shows the Commissioner as a central figure in the administration of a Corporation. In other words, the Commissioner is the organ which carries out the policy laid down by the elected body of the Corporation. The elected body has no power under the Act to administer any of its policies directly. It has no alternative but to act through the entire administrative machinery of the Corporation, at the head of which is the Commissioner. This salient feature to uphold the most cherished principles of democracy is enunciated by the Legislature in the shape of third part of Section 36(3) of the Act and the same is just to avoid the conflict between the Commissioner and the councillors, which may ultimately result in stagnation, bottleneck and impasse in the administration of the Corporation. Question is not of affording an opportunity to explain to the Commissioner. Question is of avording stifling and/or scuttling of the policies of the elected body of which the best Judge could only be the Corporation and that too when it speaks not through a simple majority of the elected body, but when it speaks through a majority vote amounting to 5/8th. To us. it appears that this is the safeguard that the Legislature has wisely provided to meet with such a situation. It has achieved a double purpose by a single throw. that is to say, on the one hand it has successfully avoided the stifling of the policies of an elected body by providing for the removal of the Commissioner in whom the elected body has no longer any confidence and on the the other, has left the State Government as an appointing authority to deal with such a Commissioner in such fashion as it thinks proper, after it has withdrawn the Commissioner forthwith once it is brought to its notice that the elected body has spoken on the subject through a 5/8th majority. If in a given case the State Government as an appointing authority holds an opinion contrary to the one held by the 5/ 8th majority of the elected body on facts, it can even promote the Commissioner, instead of holding an enquiry and punishing him.
21. A further submission of Mr. Vakharia in this connection was that such a construction would mean that the elected body would go on passing such resolutions one after other as soon as new Commissioners come for any reason whatsoever and in such circumstances it can hardly be expected that the State Government would correspondingly go on removing such Commissioners on seeing such resolutions. To us, it appears that such a submission is totally baseless. The aforesaid can only happen if 5/8th of the councillors behave in such an irresponsible manner in a democracy. Legislature has wisely not provided in the case of the aforesaid third set of circumstances that it should be 5/8th of the majority party in the Corporation. Legislature has also wisely not stated that it should be a simple majority of the councillors. Legislature has also wisely not stated that it would be a simple majority of the councillors present in such a meeting. Legislature has wisely not provided as aforesaid with the sole idea that it was reposing confidence not in the simple majority; not in 5/ 8th majority of the ruling party; not in 5/8th majority of the councillors present in such a meeting where such a resolution is passed; but only in 5/8th majority of the whole number of councillors. It should be a bad omen despite the aforesaid safeguard provided by the Legislature if 5/8th of the whole number of councillors of Corporations go on passing resolutions week after week with the intention to remove Commissioners after Commissioners. What the Legislature can safeguard against is a light-hearted action in such a serious matter. Legislature cannot provide if responsible Corporations want to behave in a totally irrational manner against the interest of the Corporation itself. Despite the aforesaid safeguard, if the fear as expressed by Mr. Vakharia becomes a reality, then the Courts may not be helpless or powerless and in any event the last sovereign, namely, the public opinion, would always lake care of such an irrational behaviour on the part of the Councillors of a Corporation.
22. In support of his submissions. Mr. Vakharia has referred to a number of authorities. In not one of them, question regaling the construction of the said Section 36(3) of the Act has been consideted. They all relate to cases covered by principles of service jurisprudence or administrative law. Some of them relate to what stigma would mean in the background of service jurisprudence or administrative law. None of the said decisions cover a case such as the present. Here the appointing authority is required to act by a statute where the elected body expresses itself by 5/8th majority, requiring the removal from office of a Municipal Commissioner.
23. Mr. Vakharia has relied on the decision in the case of P.L. Dingra v. Union of India . The case of a Municipal Commissioner sought to be 'removed from office' because of such a resolution passed by an elected body by the appointing authority, namely, the State Government is not covered by any of the principles mentioned in the said decision. Likewise, the decision cited by Mr. Vakharia in the case of Motiram v. N.E. Frontier Railways cannot be of any assistance in the present group of petitions because in the said case the Supreme Court had an occasion to deal with Railway Establishment Code and the validity of Rules 148(3) and 149(3). The principles propounded in the said decision cannot be questioned. All-the-same, those principles cannot apply at all in the present group of petitions in the light of what we have stated in this judgment.
24. Mr. J.M. Thakore, learned Advocate General appearing for the State and also for the Chief Minister and another Minister, made submissions which were more or less similar to the submissions made by Mr. Vakharia. In particular, however, he stressed that as the resolution in question to remove the Commissioner is passed with reference to the various misdeeds committed by the Commissioner concerned, it is penal in nature and as such, to remove him from office should be done only after giving him an opportunity to offer his explanation. If that is not done and if the resolution is given effect straightaway, the same will offend the principles of natural justice and will be opposed to Article 14 of the Constitution ot India. In another facet of his submissions, learned Advocate Genera] has also stated that different consideration will flow if there is nothing said against the Commissioner by the Corporation while passing such a resolution. The present is a case where something has been stated in the said resolution against the Commissioner and as stated hereinabove, we have asked the Advocate concerned to assume for the purpose of the present petition that the resolution does contain facts and allegations amounting to stigma against the Commissioner. In the present case, we are not called upon to consider a situation where there is such a resolution passed by the requisite majority in which nothing has been stated or alleged against the Commissioner, which can amount to stigma. The learned Advocate General has submitted that the word "remove" itself denotes remove from the post which the Commissioner is holding and as such. hearing should be given before such removal. According to the learned advocate General, removal from public statutory office, to which a person is not elected, will carry with it a stigma and, therefore, it must be for good reason and it is because of this that administrative law requires that principles of natural justice must be followed before such a removal is effected. After citing the cases which deal with the word "removal'" and submitting the effect of removal, learned Advocate General also cited the decisions as to what things would amount to stigma. According to the learned Advocate General, inasmuch as the action of the Corporation has to be decided with reference to the allegations that it has made for passing such a resolution, the Court must look to the facts of the case and decide the case. Learned Advocate General has proceeded to submit that if the Government has to remove the Municipal Commissioner merely on passing of a resolution of 5/8th majority without affording him any opportunity to explain, it will amount to condemning a person unheard and such removal in the light of the recent development of the administrative law cannot be effected without giving an opportunity to the Commissioner to show cause. Learned Advocate General has proceeded further to submit that if such an order happens to be passed by the Government, then the Commissioner can successfully challenge the said order in a Court of law. Finally, learned Advocate General submitted that any removal from public office will constitute a stigma and by such removal, various serious consequences will follow. We do not think that we can accept any of the aforesaid submissions of the learned Advocate General for the reasons already stated by us hereinabove. We do not think that it is at alt necessary to enter into the facts stated is the resolution against the Commissioner for the purpose of deciding the present group of petitions. The construction sought to be put by learned Advocate General in respect of the aforesaid third set of circumstances, in our opinion, will not fit in with the use of the words "shall forthwith" which words are only found in the aforesaid third set of circumstances and are conspicuously absent in the aforesaid first and second set of circumstances. The aforesaid submissions of the learned Advocate General proceed on the basis that second set of circumstances and the third set of circumstances are inter-woven and inter-connected so as to bring in the operation of the words 'for incapacity, misconduct or neglect of duty', while dealing with the third set of circumstances. To us, it makes no sense to read the aforesaid third set of circumstances so as to mean that the Corporation has to speak through 5/8th majority in a resolution against the Commissioner so that the State Government can enquire into the allegations of incapacity, misconduct or neglect of duty mentioned in the said resolution and afford an opportunity to the Commissioner to explain the same and thereafter if the State Govt. agrees that the contents of the resolution on the aforesaid aspects are well-founded, then the State Government "shall forthwith" act. In other words, the words "shall forthwith" will come into effect only when the aforesaid whole exercise is over at the hands of the State Government. The construction as suggested by the learned Advocate General would also mean that the State Government has to sit in judgment over what the Corporation has stated in a resolution passed by 5/8th majority and has not to act forthwith on coming to its notice that such a resolution has been passed. Such a submission made by the learned Advocate General does not take into consideration all the aforesaid various aspects, which we have discussed hereinabove. Present is not a case at all which can be said to be covered either by service jurisprudence or by administrative law, when we appreciate the real intent and purpose behind providing the aforesaid third set of circumstances by the Legislature. It is. therefore, not possible to accept all or any of the submissions made by the learned Advocate General on behalf of the State and also on behalf of the Chief Minister and another Minister. We also do not agree with the learned Advocate General that if the State were to act as required by the aforesaid third set of circumstances on coming to its notice that such a resolution has been passed by the Corporation with the requisite majority, the same would amount to stigma and by such removal from office serious consequences will automatically follow. We have also made it clear hereinabove that if the State Government acts pursuant to such a resolution it is only because the statute requires it to act on seeing that such a resolution has been passed by 5/8th majority and not because the facts and allegations contained in such a resolution amounting to stigma against the Commissioner are correct or ill-founded and it is open to the State Govt. as an appointing authority to make clear in its communication to the Commissioner that it is acting solely because the statute has required it to act mandatorily when it is brought to its notice that such a resolution with the requisite majority has been passed.
25. Learned Advocate General has cited a number of decisions in support of his submissions. The decision in the case of Shivprasad Umiashanker v. Municipality of Palitana reported in ILR 1972 Gujarat 1000 was a case which came to be decided by a Full Bench of this Court wherein Sections 47, 48, 49 and 50 of the Gujarat Municipalities Act (Act No. 34 of 1964) came to be discussed. The provisions applicable to Chief Officer of a Municipality and the provisions made ia Section 36(3) of the Act in question in the case of a Municipal Commissioner are altogether different. The Chief Officer is appointed by the Municipality, but the Municipal Corporation does not appoint the Municipal Commissioner and the appointing authority in the case of Municipal Commissioner is the State Government. For construing said Section 36(3) of the Act, the said Full Bench decision cannot throw any light. There is a vast difference between Sections 48 and 50 of the Gujarat Municipalities Act on one hand and Section 36(3) of the Act in question on the other. As is apparent, not only they differ from each other in letter and spirit amongst other things, but also they operate in different fields having different perspective.
26. Learned Advocate General had also referred to the case of Shri Jayant H. Shukla v. The Municipal Corporation 1976 (2) SLR 544 Shri Jayant Shukla was a Transport Manager. As seen above. Transport Manager unlike the Municipal Commissioner is appointed by the Corporation and is removable as per Section 50 of the Act. By no stretch of imagination can Section 50 apply to a Municipal Commissioner. On the other hand. Section 36(3) of the Act cannot apply to a Transport Manager, though it applies to a Municipal Commissioner. The principles propounded in the said decision. therefore, cannot apply to a case, which falls under the said Section 36(3) of the Act. Likewise, though we agree with the principles propounded by the Supreme Court and other Courts in the other decisions cited by learned Advocate General, we are unable to conclude that any of them applies to the facts and circumstances of the present case or that any of them can assist for the purpose of construing Section 36(3) of the Act in view of what we have stated hereinabove.
27. The learned Advocate General has distinguished tha decision in the case of Ramkrushna Gangaram Rathi and Anr. v. Kisan Zingraji Madke and Ors. cited by Mr. P.M. Raval, who has appeared on behalf of the Standing Committee of the Corporation. Learned Advocate General has submitted in this connection that the aforesaid case arose in respect of a no confidence motion moved against the elected President and so the same cannot have any bearing, when a person is removed from office. It is true that the facts of the said case differ from the facts of the present case. All the same, the said case involved a construction of Section 55(1) of Maharashtra Municipalities Act (Act No. 40 of 1965), which runs as under:
55(1). A President or a Vice President shall cease to be President or Vice President as the case may be, if the council by a resolution passed by a majority of the total number of councellors (excluding the co-opted councillors) at a special meeting so decides.
It is also necessary to reproduce Sub-section (2) of Section 55 of the said Act, as it has some bearing on the issue involved. To the extent it is necessary, the said Sub-section (2) of Section 55 reads as under:
55(2). The requisition for such a special meeting shall be signed by not less than one/fourth of the total number of councillors (excluding the co-opted councillors) and shall, if such meeting is to be convened for considering the resolution for removal from office.
xxx xxx xxx After examining the various sections of the Act, the Division Bench of the Bombay High Court has held that reasonable opportunity as required under the other sections has not been provided in the said Section 55 of the Act and on the plain reading of Section 55, it appeared that the council had simply to pass a resolution by a majority of the total number of councillors at a special meeting called for the purpose and as soon as such a resolution was passed, the President ceased to be the President. It has also been observed that in a democratic institution, it is the majority which rules and the decision taken by the majority of the members is binding on the whole house, as if it is the decision of the whole house. To other uninterested and independent persons, the decision of the majority might appear to be incorrect and the view of the minority to be the correct view. Even so. the will of the majority must prevail over that of the minority and that 'will' cannot be questioned. At the time where such decisions are taken the matters on the agenda are discussed and every councillor gets an opportunity to put forward his views and thereafter a vote is taken and the decision of the majority is taken as the decision of the council, but that decision once taken by a majority is unassailable even though such a decision may appear to be erroneous or unreasonable and certain sanctity is attached to the same. It has further been observed that the Act itself has at several places indicated where the reasonable opportunity is required to be given. The omission of this reasonable opportunity in Section 55 could not, therefore, be said to be inadvertent or unintentional and it would not be permissible for the Courts to read something in the section which it does not contain. Even in the earlier Municipal Acts which the present Act has repealed, the only requirement was to give ten days' notice for moving a motion of no confidence in the President and on the resolution of no confidence in the President being passed at the meeting, the President ceases to hold the office. After examining the provisions of earlier similar Acts, it has been concluded by the Division Bench that when the Legislature enacted the prevent Act by which the earlier Municipal Acts were replaced, the Legislature must be taken to be aware of the provisions of the earlier Municipal Acts as well as the Maharashtra Zilla Parishads and Panchayat Samitis Act or the Bombay Village Panchayats Act in which also a similar provision is to be found. The omission, therefore, to incorporate the said requirement regarding reasonable opportunity in Section 55 of the Act appeared to be intentional and with a purpose. It was submitted in the said case by the learned Counsel Mr. Phadke that in the Act in question, the words "so decides" and "removal" have been used and, therefore, it must not have been thought necessary to further add specifically the requirement of reasonable opportunity, as those words themselves contain an obligation of giving a reasonable opportunity. Negativing the said contention, the Division Bench held that there was nothing special in the words, "so decides" or "removal' and that the words "so decides" in Section 55 of the Act was only to indicate that the resolution must be by a decision of the majority of the total number of councillors. The Division Bench has also considered the dictionary meaning of the word "removal" found in the Concise Oxford Dictionary. In the said dictionary, the word 'remove' is defined as take off or away from the place occupied, convey to another place, change situation of, get rid of, dismiss. Thus, "removal from office" would mean taking off from the place occupied or getting rid of Referring to Chamber's Dictionary, the Bench has observed that that dictionary also gave one of its meanings as "to withdraw" and on that basis, the Division Bench concluded that the resolution was to be passed for withdrawing or taking off the President from his place occupied by him as the President and for such mere removal, no reasons or grounds seem to be necessary. The Division Bench has further observed that when a President is removed from his office by a majority of the councillors, there is no stigma cast on him as in the case of his removal as a councillor and secondly, as a President under Section 42 of the Act, no civil consequences, as is generally understood, follow in case of simple removal from office by a majority of votes. The Bench has specifically concluded that in a democratic institution, removal from an office by a prescribed majority of votes does not amount to any stigma on the person so removed; that such a removal by the 'will' of the majority is incidental to the holding of democratic office and no reasons or grounds are required to be given unless the statute specifically so provides. It has further been observed that Section 42 of the Act also uses the word "removal, but that removal under that provision was for a misconduct in the discharge of his duties or for a disgraceful conduct of the councillor becoming incapable of performing his duties as a councillor; and that such a removal would necessarily cast a stigma on the person so removed and, therefore, the Legislature has been careful enough to provide for a reasonable opportunity of showing cause as to why he should not be removed and further no such provision has advisedly been made in Section 55 of the Act. The Division Bench has clearly observed that reading "reasonable opportunity" or "good cause" in Section 55 would be reading something which is not there in the section and would be adding to the section which the Courts are not permitted to do; that it is for the Legislature to enact the law and for the Courts to interpret it, to bring out the real meaning of the Legislature; and that it was not permissible to add to or subtract from the provisions of an Act. Thus, though the aforesaid decision differs on facts, a construction as has been put by the said Division Bench on the aforesaid Section 55(1) read with aforesaid Section 55(2) can similarly be applied when one proceeds to construe the aforesaid third set of circumstances found in Section 36(3) of the Act under consideration on parity of reasoning because, in our opinion, the basic spirit underlying the aforesaid provisions under both the Acts is more or less the same.
28. Mr. Tanna has appeared in this group of cases on behalf of Mr. Bijlani, the Municipal Commissioner, in respect of whom the said resolution has been passed. The submissions of Mr. Tanna also proceeded more or less on the lines submitted by Mr. Vakharia and the learned Advocate General. Mr. Tanna submitted that if the resolution passed by 5/8th majority of the Corporation has to be given effect to automatically and mechanically by the Government, the same will amount to putting A fetter upon the Government. It is not possible to accept the said submission of Mr. Tanna. As stated hereinabove, the State Govememnt will be completely free to act as an appointing authority in the case of the Commissioner in the matter of conducting an enquiry and imposing punishment. On this power, there are no fetters at all and when it is appreciated that the State Government is acting only because the statute mandatorily requires it to act in the said third set of circumstances, the same can hardly be looked upon as a fetter on the State Government as an appointing and disciplinary authority. On account of the said resolution, the State Government has merely to remove him from office as a Commissioner and put him somewhere else, if it so chooses. We do not see any reason as to why the State Government cannot act in the aforesaid fashion when it is brought to its notice that a resolution passed by 5/8th majority of the Corporation required the removal from offices of the Commissioner.
29. Another submission of Mr. Tanna is that a stage will come after the Government has examined itself the allegation regarding incapacity or misconduct or neglect of duty of the Commissioner concerned and has reached a conclusion that the same are correct: and even after coming to such a conclusion, it does not act to remove the Commissioner from office. According to Mr. Tanna, it is at this stage that the members of the Municipal Corporation can resort to requiring the Government to remove the Commissioner after passing such a resolution by 5/8th majority and not before. We do not find anything in the aforesaid Section 36(3) which goes to support the aforesaid submissions of Mr, Tanna, more particularly in view of what we have already stated hereinabove.
30. Mr. Tanna has further submitted that removal from office mechanically on the strength of the resolution passed by 5/8th majority will be against all canons of principles of natural justice and the principles laid down in a catena of decisions both at the High Courts and at the Supreme Court level. Mr. Tanna has reiterated that the words "so removed" mean removal from office for incapacity, misconduct or neglect of duty and cannot mean removal from office only. Mr. Tanna has further submitted that the Legislature has used the adverb "so" as adverb of purpose and that therefore, the removal as such can be considered only on the basis of incapacity, misconduct or neglect of duty. Dealing with the administrative law, Mr. Tanna has submitted that the removal from office is a quasi-judicial act and the Government cannot mechanically remove on the mere resolution of the Corporation without affording any opportunity to the person affected to explain himself. According to Mr. Tanna, the mechanical action of an authority which has to act in a quasi-judicial manner, will be considered to be as abdication of statutory discretion by acting as per the dictation of another and the exercise of the power by the statutory authority due to fetters upon it, would be against all canons of principles of natural justice and cannot be allowed to stand for a moment's scrutiny. It appears to us that if the State Government acts in pursuance of a resolution passed by 5/8th majority of the Corporation in the aforesaid third set of circumstances, the State Government would not be acting as a quasi-judicial body. The submissions, therefore, of Mr. Tanna in this connection are not well-founded for the aforesaid reason and also because of what we have stated hereinabove.
31. Mr. Tanna next submitted that if a literal meaning is possible, the same should be attempted and the aforesaid part of Section 36(3) should be given a proper construction. Mr. Tanna has submitted that the whole Section 36(3) must be read conjunctively and not in a distinctive manner since the Legislature has used the word "and" in all the three parts of this Sub-section (3) of Section 36. He has further submitted that the words "removal from office" have to be read not in isolation, but in continuation of the second part. Mr. Tanna has also put stress on the words "so removed"' occurring in the third part of Sub-section (3) of Section 36. We have already considered all the aforesaid aspects and we do not think that these submissions of Mr. Tanna deserve to be accepted. Mr. Tanna has also referred to a number of decisions. Since however none of them can assist in properly construing the said Section 36(3) in the facts and circumstances of the case, we do not consider it necessary to deal with them in this judgment.
32. It is also to be appreciated that the independence and functioning of the local self-Government, that is to say, the Municipal Corporation, will be very much jeopardised if a meaning different from the one we endorse on the said third set of circumstances provided under Section 36(3) is given. In the present case, the local self-Government is vested with the Municipal Corporation. The democratically elected body is accountable to the public at large. It has certain statutory duties to perform. The executive authority at the head of which is the Municipal Commissioner, who is appointed by the State Government, can function as long as the Municipal Corporation feels that the functioning of the Commissioner is conducive to the implementing of the programmes and policies of the Municipal Corporation. If 5/8th of the total number of councillors of the Municipal Corporation feel that it is not possible to carry on with the Commissioner for the purpose of implementing their programmes and policies, it could not be left to the sweetwill of the Government to act upon such a resolution. The implementation of the programmes and policies of the Corporation cannot also be delayed by permitting the Commissioner concerned to agitate about the resolution and thereby impose himself on the Corporation and create a deadlock between the Corporation and the Commissioner. By such a deadlock, the ultimate sufferers are the public and the same cannot be countenanced when the elected body, in order to implement its programmes and policies which it has promised to the public, feels that it cannot carry on with the Commissioner who in their opinion, cannot function with them. The removal from the office of the Commissioner on the basis of the resolution passed by 5/8th majority of the councillors elected, is to ensure that the local self-Government functions efficiently without any break or bouleneck. If once there is incompatibility between the Corporalion and the Commissioner and that incompatibility is expressed by 5/8th majorty as provided in the section, there exists an emergency to immediately act upon such resolution without in any way delaying the same. Reading the said section in its true perspective, such removal neither attaches any stigma nor spells out any punishmsnt, since the Municipal Corporation is neither the appointing authority nor a disciplinary authority in the case of the Municipal Commissioner.
33. It can also be said in the facts and circumstances of the present case and on a construction of the said Section 36(3) that the word "removal" can only mean the transfer of a Municipal Commissioner from one place to another and by removing the Municipal Commissioner and withdrawing him from that post, the same can neither amount to dismissal nor removal nor reduction in rank, In our opinion, such removal will be in keeping with the statutory provisions under consideration and would be conducive to the proper functioning of a democratically elected Municipal Corporation. Even in Corpus Juris Secondum, (Copy right 1952 Vol. 76 page 907) the word "removal" in a broad sense means the transfer of a person or thing from one place to another. Since, to the present case the principles of service jurisprudence or those of administrative law or principles of natural justice are not attracted, as stated hereinabove, the word 'removal' in the present case will have the aforesaid broad meaning. It ia apparent therefore the word 'removal' takes colour from the context in which it is used and does not have same meaning at all places.
33A. It is pertinent to note that no decision interpreting the said "Section 36(3) of the Act has been cited before us. The only decision where there is some parity of reasoning is the aforesaid decision in the case of Ramkrvshna Gangaram Rathi v. Kisan Zingraji Madde AIR 1971 Bombay 305 cited by Mr. Raval and as observed by us hereinabove, the reasoning in the said case has appealed to us to the extent that we have stated hereinabove.
34. In the end, it seems to us that when there is incompatibility between the Corporation and the Commissioner, the Legislature has provided a way out in the shape of the aforesaid third set of circumstances in Section 36(3). A Municipal Commissioner, when such a resolution is passed against him by the elected body, cannot be thrust upon the elected body indefinitely when the statute only requires to remove him from the office of the Municipal Commissioner and deal with him in such maaner as the State Government may think proper. We are of the opinion on a construction of the said Section 36(3) and in the facts and circumstances of the preseat case that it is a mandate issued by the statute that the State Government should act on such a resolution forthwith, when it is called upon to do so by virtue of the said resolution. The Municipal Commissioner, in our opinion, can hold the office so long as be enjoys the confidence of the councellors in keeping with the statute.
In this judgment, we are not referring to the resolution passed by the Standing Committee, as nothing turns on the said resolution passed by it in this group of petitions. Similarly, as none of the Advocates on either side has argued in respect of the other reliefs prayed in Special Civil Applications Nos. 5778 and 5891 of 1988, we are not touching the aspects concerning the said reliefs in this judgment.
35. The sum total of the above discussion is that Pan III of Sub-section (3) of Section 36 is intra vires the Constitution. We hold that it is mandatory on the part of the State Government to remove the Municipal Commissioner from office forthwith in view of Section 36(3) of the Bombay Provincial Municipal Corporations Act, 1949, if at the meeting of the Corporation not less than 5/8ths of the whole number of councillors vote in favour of a resolution requiring his removal.
36. We, therefore, allow Special Civil Applications Nos. 5791 and 6381 36 of 1988 and direct the State Government to implement the said resolution of the Municipal Corporation forthwith. We dismiss Special Civil Applications Nos. 5778 and 5891 of 1988. Rule is made absolute in Spl. Civil Applications Nos. 5791 and 6381 of 1988 accordingly and Rule is discharged in Special Civil Applications No. 5778 and 5891 of 1988, In the facts and circumstances of the case, there will be no order as to costs in any of the aforesaid petitions.
37. After the delivery of the judgment, learned Advocate General appearing Tor the State and Mr. K.G. Vakharia for the petitioner in Special Civil Application No. 5778 of 1988 and Special Civil Applica-tion No. 5891 of 1988 and Mr. B.P. Tanna appearing for the Municipal Commissioner of the Ahmedabad Municipal Corporation in all 4 matters have (added vide Court's order passed on 29th December, 1988) prayed for grant of leave by this Court for preferring appeal to the Supreme Court. This is the first time the interpretation of Section 36(3) of the Bombay Provincial Municipal Corporations Act, 1949 came in for construction. We have held that the third part of Section 36(3) is intra vires the Constitution and has also discussed as to how the service law, administrative law and the principles of natural justice cannot be brought into service to scuttle the resolution passed by 5/8th elected members of the Corporation. In our view, the matter involves substantial question of law as to the interpretation of statute. Hence the leave prayed for is granted.
38. Mr. Vakharia, learned Counsel appearing for the petitioners to two of the above petitions and Mr. B.P. Tanna, learned Counsel appearing for the Municipal Commissioner, pray for staying the order passed by us for a period of four weeks. He also states that the Supreme Court is closed and it opens only on 2-1-1989. Hence, in order to enable their clients to approach the Supreme Court, they pray for stay of four weeks in respect of the order that we have passed. Taking into consideration the request made by Mr. Vakharia and Mr. Tanna, the order passed by us is stayed upto 6-1-1989.