Gujarat High Court
Rajubhai vs State on 17 November, 2008
Author: Jayant Patel
Bench: Jayant Patel
Gujarat High Court Case Information System
Print
SCA/9056/2008 2/ 11 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 9056 of 2008
=========================================================
RAJUBHAI
J DOSHI - Petitioner(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance
:
MR
YN RAVANI for
Petitioner(s) : 1,
MR KL PANDYA, AGP for Respondent(s) : 1,
NOTICE
SERVED for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
Date
: 17/11/2008
ORAL
ORDER
Heard Mr.Ravani, learned Counsel for the petitioner and Mr.Pandya, learned AGP for the State Authorities.
Prima facie it appears that as per the Scheme of Section 49 read with Section 45 and Section 46 of the Gujarat Municipalities Act (hereinafter referred to as the Act for short), the first authority to manage and look after the financial affairs of the Municipality is the Chief Officer of the Municipality and as per Section 5 of the Act, the Chief Officer is the Officer, who represents the Municipality.
Under these circumstances, if the State Government has clarified the position by the present order that the Chief Officer will be required to sign the cheques, the same does not appear to be against the Scheme of the aforesaid provisions of Section. No material is brought to the notice of this Court showing that such power does not vest to the Chief Officer of the Municipality, but vests to the other officer.
But as per the above referred Section 49 read with Sections 45 and 46 of the Act, the President of the Municipality is vested with the powers to supervise the functioning of the Chief Officer in the matter of maintenance of the accounts and financial transactions and he is also assigned with the duty to implement the decision of the General Body of the Municipality, which is the final authority at the level of the Municipality. Therefore, if the Chief Officer is acting contrary to the decision of the President or the General Body, as the case may be, such powers even with the Chief Officer to sign the cheques may not be available. But at the same time, if the decision of the General Body of the Municipality or the President is unlawful, nothing prevents the Chief Officer to report the same to the Collector under Section 258 of the Act for appropriate action against the Municipality or the President of the Municipality, but such would not be a ground to read absolute powers with the Chief Officer whether to sign the cheque or not, without intervention of the General Body or the President of the Municipality.
Mr.Pandya, learned AGP, during the course of the hearing, placed on record the circular dated 2.9.2008 issued by the State Government in furtherance to the impugned resolution dated 10.6.2008 to the effect that prior approval of the President of Municipality is required to be obtained by the Chief Officer. Such may take care of the supervision by the President of the Municipality into the functioning of the Chief Officer. But if the Chief Officer, in spite of the resolution of the General Body of the Municipality or the President, as the case may be, declines to issue cheque, such situation is not taken care of in the said circular dated 2.9.2008.
It deserves to be recorded that as per the Scheme of the Act, keeping in view the independence to be maintained in the functioning of the local Self-Government, following basic aspects can be traced:-
(i) As per the Scheme of the act, the Municipality is an independent body being representative of the electorate and its office-bearers includes President, Vice-President, other Members of various Committees and the Chairmen of such Committees, who are representatives of the electorate.
(ii) In any function of the Municipality, the final authority vests to the General Body of the Municipality and the duty of the President is to implement the decision of the General Body and in absence of its President, Vice President has to exercise all powers of the President.
(iii) Amongst its paid servants/officers, Chief Officer is one of such officers, who is of the highest rank and as per the Scheme of the Act, the recruitment is to be undertaken by the specified body of the State Government and such officer is under the administrative control of the State Government, to be deputed to function as the Chief Officer.
(iv) The Chief Officer is the first authority to look after the financial transaction and the affairs of the Municipality, but his power is subject to the supervision by the President of the Municipality and in absence of the President, Vice President of the Municipality, as the case may be.
(v) It is the duty of the Chief Officer of the Municipality to implement the decision of the General Body of the Municipality at the first instant and if the President of the Municipality has acted pursuant to the order/decisions of the General Body of the Municipality by way of implementation thereof, it is required for the Chief Officer to act accordingly. But such duty against cast upon the Chief Officer will be subject to leaving room that if as per the Chief Officer any action of the General Body or the President of the Municipality may be by way of a resolution or otherwise is contrary to the law or is unlawful, the Chief Officer may report the same to the Collector under Section 258 of the Act for suitable action and if the Collector has passed any order under Section 258 of the Act, the Chief Officer would be required to act accordingly and in absence of such order under Section 258 of the Act by the District Collector, it will be required for the Chief Officer to act as per the decision of the General Body of the Municipality or the President, on behalf of the General Body of the Municipality and in absence of the President, the Vice President, as the case may be.
(vi) The aforesaid may apply in case of Municipal funds and it may equally apply for utilization of the funds of the Municipality, provided by the State Government by way of grant or Scheme, subject to supervisory control and the terms and conditions for utilization of the funds, as prescribed by the State Government.
If the resolution dated 10.6.2008 is considered with the circular dated 2.9.2008, it only prescribes the authority, but leaves no room to ensure that the basic spirit of the local self-Government and Sections 45 and 46 are taken care of.
The attempt was made by the learned Counsel for the petitioner to contend that the State Government as per the affidavit-in-reply has exercised the power under Section 277 of the Act and not under Section 271 of the Act. It was submitted that the State Government, prior to the resolution, has sanctioned the Rules of Municipality under Section 271 of the Act, authorising the President to sign the cheque and, therefore, it was submitted that if the Rules are to be superseded by exercise of power under Section 277 of the Act by the State Government, the same is required to be published in the Gazette as per the Scheme of the Act and he submitted that such publication in the Gazette is a mandatory requirement as per the decision of the Apex Court in case of I.T.C. Bhadrachalam Paperboards and Anr. v. Mandal Revenue Officer, A.P. and Ors. , reported in 1996 (6) SCC, 634 and as there is no publication in the Government Gazette, which is an admitted position, the implementation of the resolution is without jurisdiction and, therefore, this Court may completely stay the operation of the resolution of the Government dated 10.6.2008.
The perusal of the resolution dated 10.6.2008 shows that it does not speak for the exercise of the power under a particular section. It is only by way of an affidavit shelter is taken under Section 277 of the Act. It is well settled that if the powers can be traced under other provisions, the nomenclature of the Section in the impugned decision would not matter much. Section 271 of the Act enables the Municipality to make Rules not inconsistent with the provisions of the Act or the Rules or Orders made by the State Government. Therefore, while framing such Rules, provisions of the Act or the Rules or any order of the State Government would stand above such Rules, if any, to be framed by the Municipality and such Rules should not be inconsistent thereof.
Therefore, under these circumstances, if the State Government has passed the order, such order would continue to operate even if the Rules were framed by the competent authority, at the relevant point of time, when there was no order of the State Government, since the rule-making powers of the Municipality is subject to the order of the State Government. However, at the same time, such powers of the State Government to pass order or such order of the State Government cannot run counter to the provisions of the Act. As observed earlier, such order has to meet with the requirements of Sections 45, 46 and 49 and has to maintain the aforesaid basic aspects.
Hence, I am inclined to pass following orders:-
(a) Rule.
(b) By interim order, it is directed that the impugned resolution of the State Government dated 10.6.2008 read with the circular dated 2.9.2008 shall continue to operate with the further direction that -
(i) The Chief Officer of the Municipality, for the purpose of signing cheques, will be bound by the decision of the General Body of the Municipality or the President of the Municipality or, in absence of the President, the Vice President of the Municipality, as the case may be.
It is observed that in the event the Chief Officer of the Municipality is of the view that any resolution/decision/action of the General Body of the Municipality or the President of the Municipality or the Vice President of the Municipality, as the case may be, is unlawful, it would be open to him to move appropriate application/representation/report to the District Collector under Section 258 of the Act and if the District Collector has prohibited the payment thereof, then in that case, the Chief Officer shall not be required to act as per the decision of the General Body of the Municipality or the President or the Vice President of the Municipality.
17.11.2008 (Jayant Patel, J.) vinod Top