Bharatbhai vs Director on 20 June, 2008

[Cites 22, Cited by 0]

Gujarat High Court

Bharatbhai vs Director on 20 June, 2008

Ms.Mini M.Nair, learned Assistant Government Pleader, waives service of notice of rule for the respondents Nos. 1 and 2 and Mr.H.M.Parikh, learned counsel, waives service of notice of rule for the respondent No.4. Smt.Minakshiben G.Bhavsar, Chief Officer of Kathlal Municipality is present in person before the Court and states that the Kathlal Municipality (respondent No.3) does not want to contest the petition, therefore, there is no necessity of issuing notice of rule to the respondent No.3. In the facts and circumstances of the case, and with the consent of the learned counsel for the respective parties, the petition is taken up for final disposal.

2. By way of this petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 10-3-2008 whereby, the appeal filed by him under the provisions of Section 38(4) of the Gujarat Municipalities Act, 1963 has been rejected, by the respondent No.1.

3. The brief facts, as emerging from a perusal of the averments made in the petition are that, the petitioner is a Councillor of Kathlal Municipality, having been elected as such, and took charge on 3-4-2006. According to the petitioner, at the relevant point of time, the disease of ýSChikungunyaýý was spreading within the area of the respondent No.3 Municipality and, therefore, the petitioner supplied 99 bags of a pesticide known as ýSMethyl Perotheon Powderýý to the Municipality from the firm known as ýSBhavsar Hariom Bijwalaýý, of which the petitioner is the Proprietor. It is averred in the petition that a cheque for Rs.22,275/- was issued to the petitioner in respect of the supply of bags of Methyl Perotheon Powder, which was countersigned by the respondent No.4, who was the then President of the Municipality. The Executive Committee of the Municipality approved the supply of Methyl Perotheon Powder from the firm of the petitioner to the Municipality, by passing Resolution No.47 dated 6-9-2006. Thereafter, this Resolution of the Executive Committee came to be approved by the General Board of the Municipality by Resolution No.36 dated 16-10-2006. It is the case of the petitioner that even though the Municipality issued an advertisement in the newspapers, inviting tenders for the supply of Methyl Perotheon Powder on 5-8-2006, no applications were received and,therefore, looking to the urgency of the situation and the necessity of supplying the pesticide powder to control the spread of ýSChikungunyaýý, the petitioner supplied 99 bags in all of the pesticide on 5-8-2006, 8-8-2006, 20-8-2006 and 25-8-2006, for which he received payment by cheque, as mentioned above. It is further averred in the petition that it was only after the second advertisement, dated 18-8-2006, was published in the daily newspaper ýSDivya Bhaskarýý that the tender of Shri Omkar Marketing was accepted, at the rate of Rs.232/- per bag, whereas the petitioner has charged only Rs.225/- per bag. According to the petitioner, no financial loss has occurred to the Municipality by purchasing the said powder from his firm at the rate of Rs.225/- per bag and, further,the pesticide powder was utilised at the crucial time when the disease of ýSChikungunyaýý was spreading in the area. It further transpires from a reading of the petition that the respondent No.4, who was the then President of the Municipality, made an application to the Collector as well as the Director of Municipalities on 23-7-2007, pursuant to which the District Collector issued a show cause notice under the provisions of Section 38(2) of the Gujarat Municipalities Act, 1963 (ýSthe Actýý for short) read with Section 11(3)(A)(i) of the Act. The petitioner filed his reply to the show cause notice on 29-9-2007. The Municipality also filed a reply to the show cause notice. After hearing the parties, and considering the replies of the petitioner and the Municipality, the District Collector passed order dated 29-9-2007, whereby the petitioner has been disabled from continuing as a Councillor of the Kathlal Municipality, and his office has been declared to have become vacant. The order dated 29-9-2007 of the District Collector has been annexed as Annexure ýSFýý to the petition. Aggrieved by the above stated order, the petitioner filed an appeal, under the provisions of Section 38(4) of the Act before the State Government, which has been dismissed by order dated 10-3-2008, a copy of which is annexed as Annexure ýSAýý to the petition, giving rise to the present petition.

4. The petitioner has also filed Civil Application No.6533 of 2008 whereby it has been prayed that the Election Commission, which is impleaded as respondent No.5, be restrained from filling up the vacant post of Councillor of Kathlal Municipality, for which the polling is scheduled to be held on 22-6-2008.

5. Mr.Dilip B.Rana, learned counsel for the petitioner has advanced the following submissions:

(a) That the respondent No.1 as well as the District Collector (respondent No.2) have seriously erred in passing the impugned orders in view of the fact that the show cause notice dated 25-9-2007 has been issued by exercising powers under the provisions of Section 38(2) of the Act read with Section 11(3)(A)(i), which is not applicable to the facts of the case and, therefore, the impugned order dated 10-3-2008 as well as the proceedings undertaken consequent thereto and the orders passed thereupon, deserve to be quashed and set aside.

(b) That it is an admitted fact that pursuant to the advertisement issued by the Municipality inviting tenders for the supply of Methyl Perotheon Powder on 5-8-2006, no applications were received and, therefore, the petitioner proceeded to supply different quantities of the pesticide on 5-8-2006, 8-8-2006, 20-8-2006 and 25-8-2006 to the Municipality, to control the spread of ýSChikungunyaýý in the area. It is submitted by the learned counsel for the petitioner that the second advertisement inviting tenders was issued by the Municipality on 18-8-2006 and, before the tender of Shri Omkar Marketing was accepted on 24-8-2006, the petitioner had supplied the required quantity of the pesticide powder to the Municipality. It is emphasised that even though the supply has been made without a tender or work order, the petitioner has committed no illegality by supplying the pesticide to the Municipality at the relevant point of time, looking to the urgency of the situation, since it was required for controlling the spread of disease in the area and, therefore, the action of the petitioner, being motivated purely by public interest, cannot be construed as being illegal and no disqualification has been incurred by the petitioner.

(c ) That the petitioner has supplied the Methyl Perotheon Powder at the rate of Rs.225/- per bag, whereas the rate charged by Shri Omkar Marketing, whose tender was accepted by the Municipality on 25-8-2006, is much higher i.e. Rs.232/- per bag and, therefore, the petitioner has not caused any monetary loss to the Municipality. It is further submitted that the petitioner has supplied the bags of pesticide on a ýSno profit and no loss basisýý, without gaining any financial advantage and, therefore, it cannot be said that the petitioner has committed any illegality or has incurred any disqualification under the Act, by his action. It is further submitted by Mr.Dilip B.Rana that after the tender of Shri Omkar Marketing was accepted by the Municipality, the petitioner has not supplied any bags of pesticide.

(d) That the respondent No.4,who is also the complainant, was the President of the Municipality at the relevant point of time and the cheque for Rs.22,275/- towards payment for the supply of the bags of Methyl Perotheon Powder has been countersigned by her. It is further contended by the learned counsel for the petitioner that a meeting of the Executive Committee of the Municipality took place on 6-9-2006, wherein Resolution No.47 was passed, according approval to the supply of pesticide by the petitioner and, further, in the meeting of the General Board of the Municipality held on 16-10-2006, this Resolution was approved, by passing Resolution No.36. According to the learned counsel for the petitioner, when the action of a member, or of a committee, is approved by the General Board such decision has to be termed as the decision of the Municipality and, therefore, the petitioner cannot be removed or disqualified for any action taken by him individually, but action is required to be taken against all the members of the General Board of the Municipality.

(e) That the respondent No.4, who was the then President of the Municipality, had orally instructed the petitioner to supply the necessary bags of pesticide to the Municipality and having done so, the respondent No.4 could not have made a complaint against the petitioner regarding this matter, after about ten months of the incident, which shows the malafide intention nursed by the respondent No.4 towards the petitioner and, therefore, the impugned orders deserve to be quashed and set aside.

(f) That the petitioner is a duly elected Councillor and is a representative of the public and his preliminary duty is, therefore, towards the welfare of the public. In a situation where the disease of ýSChikungunyaýý was spreading in the area, it is the moral duty of the petitioner to prevent the spread of the disease by supplying the requisite amount of Methyl Perotheon Powder to the Municipality and, therefore, the fact that he has supplied the pesticide without there being any tender or work order in his favour, does not amount to an illegality, looking to the social and moral duty cast upon him, and the emergent nature of the situation. It is submitted that the action of the petitioner is motivated purely by public interest and is genuine and bonafide, inasmuch as no harm, prejudice or monetary loss has been caused to the Municipality and the petitioner, himself, has not gained any monetary advantage out of the supply of bags of pesticide. In support of this submission, learned counsel for the petitioner has relied upon Kirtikumar Gandalal Shah Vs. Indian Oil Corporation Ltd., reported in 1983(2) GLR 1102.

6. On the strength of the above submissions, it has been forcefully contended by Mr.Dilip B.Rana, learned counsel for the petitioner that the petition be allowed and the impugned order be set aside.

7. Ms.Mini M.Nair, learned Assistant Government Pleader has submitted as under:

(a) That it is an admitted fact that the petitioner is the owner of the firm named ýSBhavsar Hariom Bijwalaýý from which 99 bags of Methyl Perotheon Powder have been supplied by him to the Municipality. It is submitted that, in this view of the matter, the petitioner has clearly incurred the disqualification under the provisions of Section 38 read with Section 11(2)(c) of the Act. Relying upon the provisions of Section 11(3)(A)(v) of the Act,it is urged by the learned Assistant Government Pleader, that since the petitioner falls within the ambit of this provision, as he has a share and interest in the sale of the bags of pesticide to the Municipality, he could only have supplied the pesticide after obtaining the sanction of the State Government, as the amount for the purchase thereof exceeded Rs.5,000/-, as is provided under this provision of law. Even otherwise, as per Section 67 of the Act, it is incumbent upon the Chief Officer of the Municipality to give an advertisement in a newspaper inviting tenders for such a contract and, admittedly the petitioner has not supplied the bags of pesticide to the Municipality in pursuance of the advertisements which were issued in the newspapers on 5-8-2006 and 18-8-2006. Instead of making an application to the Municipality in pursuance of the advertisement, the petitioner has straightaway supplied the bags of pesticide, without following the necessary procedure and, therefore, the petitioner has rightly been disqualified and the impugned orders deserve to be upheld by the Court, since they do not suffer from any illegality.

(b) That admittedly, the show cause notice dated 25-9-2007 mentions that it has been sent under the provisions of Section 11(3)(A) of the Act, whereas the correct provisions are Section 11(2)(c) and 11(3)(A)(v).

However, the mere wrong mentioning of the Section, or non-mentioning of the correct Section does not invalidate the power which has been conferred by the Statute in this regard, and the show cause notice as well as the resultant proceedings are legal and valid. In support of this submission, reliance has been placed upon (M/s.)Karnavati Fincap Ltd. v. Securities and Exchange Board of India, reported in 1996(2) GLH 241. It is submitted by Ms.Mini M.Nair that since the power to decide whether a vacancy has arisen due to a disqualification, has been conferred upon the Collector by Section 38(2) of the Act, a mere wrong mentioning of the provisions of law in the show cause notice will not invalidate the notice or the subsequent proceedings, as the power exists in Section 38(2) which has been validly exercised and,therefore, the Court may not interfere with the impugned orders.

(c ) That, admittedly, the petitioner has not responded by filing an application, pursuant to the advertisement calling for tenders, issued by the Municipality and published in the newspapers on 5-8-2006. It is also not disputed that pursuant to the second advertisement dated 18-8-2006, the tender of Shri Omkar Marketing was accepted on 24-8-2006. The petitioner has not filed an application, pursuant to the second advertisement as well, and has supplied some bags of pesticide powder even after the acceptance of the tender of Shri Omkar Marketing, on 25-8-2006, from his own firm, in contravention of the relevant provisions of law.

(d) Lastly, it is submitted that the impugned order of the Collector dated 29-9-2007 as well as the order dated 10-3-2008 passed by the appellate authority i.e. the respondent No.1, are based on factual findings as borne out from the record, and contain sufficient reasons in support of the same and, therefore,the said orders may not be interfered with and the petition be dismissed.

8. Mr.H.M.Parikh, learned counsel for the respondent No.4 has largely adopted the arguments advanced by the learned Assistant Government Pleader and has further submitted that:

(a) The petitioner has not effectively laid challenge to the exercise of power under the provisions of Section 38 of the Act since this is the relevant provision wherein the petitioner has incurred the disqualification during his term as Councillor of the respondent No.3-Municipality. It is submitted by the learned counsel for the respondent No.4 that there is no material on record to show that the power exercised by the respondent No.2 is dehors the provisions of Section 38 of the Act and,as it is an admitted position that the supply of 99 bags of Methyl Perotheon Powder has been made by the petitioner without there being any tender or work order in his favour,he has incurred disqualification as envisaged under the provisions of Section 38(1)(a) of the Act and, therefore, the orders passed by the respondents Nos.1 and 2 suffer from no legal infirmity and deserve to be upheld.

(b) That the payment for the supply of 99 bags of pesticide by the petitioner's firm to the Municipality, exceeds an amount of Rs.5,000/- and, admittedly, there is no sanction from the State Government, as required by Section 11(3)(A)(v). Further, as this transaction has been entered into during the petitioner's term as a Councillor, it is in direct violation of the provisions of Section 11(3)(A)(v) and Section 67 of the Act and, therefore, having incurred the disqualification to continue as a Councillor, his seat has rightly been declared to have fallen vacant by the respondent No.2.

(c ) That the averments made in the petition to the effect that the respondent No.4 had instructed the petitioner to supply Methyl Perotheon Powder are not correct and are not supported by any material on record. The allegations of malafide intention of the respondent No.4 against the petitioner are baseless and unsubstantiated and cannot be taken into consideration. It is clarified by the learned counsel for the respondent No.4 that action in this matter has been taken against the respondent No.4 as well, by the State Government.

(d) The learned counsel for the respondent No.4 has placed reliance upon Ashokkumar Bhavsangbhai Chaudhary v. Director of Municipalities, reported in 2008(1) GLH 140, especially para 12 thereof, and has submitted that if the petitioner falls within the ambit of any prescribed disqualifications, he will not be qualified to hold the office of Councillor.

9. On the strength of the above submissions, it is prayed by Mr.H.M.Parikh, that the petition be dismissed.

10. I have heard Mr.Dilip B.Rana, learned counsel for the petitioner, Ms.Mini M.Nair,learned Assistant Government Pleader for the respondents Nos.1 and 2 and Mr.H.M. Parikh,learned counsel for the respondent No.4 as well as Mr.N.V.Anjaria,learned counsel for the Election Commission (Civil Application No.6533 of 2008) at length and in great detail and have gone through the averments made in the petition and the documents annexed thereto. Before dealing with the submissions advanced by the learned counsel for the respective parties, it would be pertinent to notice the admitted facts and the relevant provisions of law.

11. The petitioner was elected as a Councillor of the Kathlal Municipality from Ward No.4 and took charge on 3-4-2006. He, therefore, is a public servant within the meaning of Section 73 of the Act. The Act provides for general disqualifications for becoming a Councillor under Section 11. During the term for which he/she has been elected or nominated as a Councillor of the Municipality, the said Councillor becomes disabled from continuing as such, if he/she incurs the disqualifications enumerated under Section 38(1) of the Act. Section 38 of the Act, being relevant to the present case, is reproduced herein-below:

ýS38.(1)If any councillor during the term for which he has been elected or nominated-

(a) becomes subject to any disqualification specified in section 11,or

(b) acts as a councillor in any matter-

(i) in which he has directly or indirectly, by himself or his partner, any such share or interest as is described in clause (i), (ii),

(iii), (v) or (vii) of sub-section (3) of section 11, whatever may be the value of such share or interest, or

(ii)in which he is professionally interested on behalf of a principal or other person, or

(c) is professionally interested or engaged in any case for or against the municipality, or

(d) departs beyond the limits of the State with the declared or known intention of absenting himself continuously for a period exceeding six months, he shall subject to the provisions of sub-section (2) be disabled from continuing to be a councillor and his office shall become vacant.

(2)

In every case, the authority competent to decide whether a vacancy has arisen shall be the Collector. The Collector may give his decision either on an application made to him by any person or on his own motion after giving the councillor a reasonable opportunity of being heard.

(3)

Until the Collector decides under sub-section (2) that the vacancy has arisen, the councillor shall not be disabled under sub-section (1) from continuing to be a councillor.

(4) Any person aggrieved by the decision of the Collector may, within a period of fifteen days from date of such decision, appeal to the State Government and the orders passed by the State Government in such appeal shall be final.ýý

12. Section 38(1)(a) stipulates that a Councillor shall be disabled from continuing to be a Councillor and his office shall become vacant, if he incurs a disqualification as specified in Section 11 of the Act. Section 11(2)(c) provides that if the Councillor has directly or indirectly, by himself or his partner any share or interest in any work done by order of a Municipality or in any contract or employment,with or under, or by, or on behalf of, a Municipality, he shall be subjected to the disqualifications under this Section. Further, it is provided under Section 11(3)(A)(v) that a person having a share or interest in the occasional sale to the Municipality of any article in which he regularly trades, or in the purchase from the Municipality of any article, to a value in either case not exceeding Rs.1000/- or such higher amount not exceeding Rs.5000/-, will not incur disqualification, if the sanction of the State Government is obtained for an amount exceeding Rs.5000/- in that behalf.

13. Section 67 of the Act is also relevant and stipulates that tenders are to be invited by the Chief Officer of the Municipality for supply of any material or goods which will involve an expenditure exceeding Rs.5000/-, by issuing an advertisement in the newspapers.

14. Keeping in mind the above-quoted relevant provisions of law, it would be fruitful to advert to the relevant facts. There is no doubt regarding the fact that the petitioner has supplied 99 bags, in all, of Methyl Perotheon Powder to the respondent No.3-Municipality on 5-8-2006, 8-8-2006, 20-8-2006 and 25-8-2006 respectively, from his own Firm, namely ýSBhavsar Hariom Bijwalaýý. It is an admitted position that the Municipality issued the first advertisement, calling for tenders for the supply of Methyl Perotheon Powder, which was published in the daily newspaper on 5-8-2006. Since there was no response to this advertisement, a second advertisement was issued, which was published in the daily newspaper ýSDivya Bhaskarýý on 18-8-2006. Pursuant thereto, the tender of Shri Omkar Marketing was accepted on 24-8-2006. It is also not disputed that the petitioner supplied some bags of the pesticide powder on 25-8-2006, after the acceptance of the tender of Shri Omkar Marketing on 24-8-2006. The record reveals that the Executive Committee of the respondent No.3-Municipality approved the supply of Methyl Perotheon Powder from the firm of the petitioner, by passing Resolution No.47, dated 6-9-2006. This Resolution subsequently came to be approved by the General Board of the Municipality by Resolution No.36, dated 16-10-2006. It is also not disputed that the respondent No.4 countersigned the cheque for the amount of Rs.22,275/- in favour of the petitioner, towards payment for 99 bags of Methyl Perotheon Powder supplied by him to the Municipality. It is an admitted position that the 99 bags of Methyl Perotheon Powder were supplied without there being any tender or work order in favour of the petitioner, and the petitioner has supplied the bags of pesticide from his own firm.

15. In the light of the above undisputed facts and the relevant provisions of law, the submissions made by the learned counsel for the petitioner can now be dealt with. The submission advanced by Mr.Dilip B.Rana, learned counsel for the petitioner, to the effect that the respondents Nos.1 and 2 have erred in passing the impugned orders in view of the fact that the show cause notice dated 25-9-2007 has been issued in exercise of power under Section 38(2) of the Act read with Section 11(3)(A)(i), which is not applicable to the facts of the case and, therefore, the order dated 29-9-2007 passed by the Collector as well as the order dated 10-3-2008 passed by the respondent No.1 are invalid, being based upon a wrong show cause notice, cannot be accepted.

16. As has been held in (M/s.)Karnavati Fincap Ltd. v. Securities and Exchange Board of India (Supra),where the source of statutory power exists, the mere omission to mention the correct provision of law or the wrong mention of a provision of law will not invalidate the exercise of such power. The relevant paragraph is quoted herein-below:

ýS19. Thus, necessary power to hold enquiry against buyer or seller and power to call for information from him exists. The fact that in summons reference has not been made to these Regulations is immaterial. Such omission by itself does not invalidate the exercise of authority. Law in this regards is well settled that if source of power exist, non-mentioning of it or wrong labelling of it would not invalidate exercise of such powers.ýý (emphasis supplied)

17. The submission made by the learned counsel for the petitioner that the petitioner has supplied the requisite quantity of Methyl Perotheon Powder in view of the fact that no response was received to the advertisement dated 5-8-2006, with a view to controlling the spread of ýSChikungunyaýý in the area, looking to the urgency of the situation, and,therefore, no illegality has been committed by him, does not inspire the confidence of this Court. It is an admitted position that the petitioner has supplied some bags of the pesticide powder on 5-8-2006, which was the day on which the first advertisement issued by the Municipality had been published in the daily newspaper. The response to the advertisement, if any, would have come after 5-8-2006, therefore, on 5-8-2006, the petitioner could not have known that no applications would be received in response to the advertisement. Even though the petitioner was aware of the issuance of the advertisement, he did not file an application or seek a tender for supply of the pesticide after following the prescribed procedure but proceeded to supply the bags without a tender or work order in his favour, from his own Firm.

18. The contention of the learned counsel for the petitioner that the petitioner has supplied the bags of Methyl Perotheon Powder at the rate of Rs.225/- per bag whereas, the rate charged by Shri Omkar Marketing, whose tender was accepted on 24-8-2006, was much higher i.e. Rs.232/- per bag and, therefore, the petitioner has neither caused any monetary loss to the Municipality nor has gained any financial advantage, is also not sustainable, in view of the fact that the necessary procedure, as envisaged under the Act, has clearly not been followed and the supply of the bags of Methyl Perotheon Powder by the petitioner from his own firm to the respondent-Municipality, has been made dehors the relevant provisions of law, in the absence of a tender or work order in his favour. In this view of the matter, the rate at which the petitioner supplied the bags of pesticide, pales into insignificance.

19. It has been strongly urged by Mr.Dilip B.Rana, learned counsel for the petitioner that the respondent No.4, who is the complainant, was the President of the Municipality at the relevant point of time and has countersigned the cheque for the amount of Rs.22,275/- towards payment for the supply of pesticide powder, and the complaint made after a period of ten months by the respondent No.4, is clearly motivated by malafide intentions. This submission of the learned counsel for the petitioner is also not worthy of acceptance, since the counter-signing of the cheque by the respondent No.4 will not validate an action which is otherwise, not in consonance with the relevant provisions of the Act.

20. The mere fact that the Executive Committee of the Municipality has approved of the supply of the bags of pesticide by the petitioner to the Municipality and, this Resolution was further approved by the General Board of the Municipality, is of no help to the case of the petitioner, as the said Resolutions of the Executive Committee and of the General Board, cannot have an over-riding effect upon the specific provision of the Statute, and cannot dilute the requirements of law.

21. While making his submissions Mr.Dilip B.Rana, learned counsel for the petitioner, has laid great emphasis upon the argument that the action of the petitioner in supplying the bags of pesticide to the Municipality, is genuine and bonafide and is motivated by his perceived moral and social duty towards the public at large, since he is an elected representative of the public, and, therefore, it is his duty to take action to prevent the spread of ýSChikungunyaýý in the area, by supplying the bags of pesticide, from his own firm. It has been strongly urged by the learned counsel for the petitioner that in view of the above position, the petitioner has not done anything wrong and has not committed any illegality and, therefore, the fact that the bags of pesticide were supplied to the Municipality from his own firm without there being any tender or work order in his favour, will not amount to incurring disqualification under the Act. It has been contended on behalf of the petitioner that the motive of the petitioner, namely, his social and moral duty in a situation requiring urgent action should be taken into consideration and if that is done, it will be apparent that the petitioner has not incurred any disqualification.

22. The above-mentioned submissions of the learned counsel for the petitioner, though may seem enticing at first blush, are not legally sustainable. The main thrust of the arguments advanced by Mr.Dilip B.Rana, learned counsel for the petitioner, is that the petitioner was motivated to perform his moral and social duty in the given set of circumstances, and this consideration should prevail over the requirements of the Statute regarding grant of tender or work order for the supply of the bags of pesticide. I am afraid, I am unable to agree with such a proposition. In Raghunathrao Ganpatrao v. Union of India, reported in AIR 1993 SC 1267 a Constitution Bench of the Supreme Court had occasion to deal with the challenge to the constitutional validity of the Constitution (Twenty-sixth)Amendment, 1971 by which the Privy Purses and Privileges of the erstwhile rulers of former Indian States, were abolished. One of the issues which arose in the matter was, how far can the Court be concerned with morality, in withdrawing the assurances and guarantees. Dealing with the question whether the impugned amendment was moral or not, the Court, quoted Kent Greenawalt in ýSConflicts of Law and Moralityýý 1987 Edition, at page 338. The relevant extract is reproduced as under:

ýS188*********** ýSImpugned amendment whether moral ýSLike ordinary legislation, constitutional provisions protecting rights reflects the moral judgments of those who adopted them, in this case complex judgments that certain activities should be put beyond the range of control by the political branches of the Government. In constitutions, as in statute, language may embody a compromise of competing moral claims, though nothing in our federal Constitution resembles the relatively precise accommodation of the criminal law rules governing use of force in self-defence. The fact that the Constitution itself represents moral evaluations does not, of course, establish that moral evaluation is also the task of those who must decide if statutes and their applications fall a foul of constitutional restraints.

Widespread agreement exists on the appropriateness of some other techniques of interpretation. The point if clearest for actions that the language of the Constitution, the intent of the Framers, and the decisions of earlier courts place squarely within the area of constitutional protection. For these actions, a modern court will rarely need to engage in any debatable moral evaluation. Usually it will apply the plain law, perhaps after determining that no overwhelming argument has been made contrary to the indications of these powerful sources. Even for harder cases, judicial interpretation is not simple moral evaluation; the implications of the textual language, the Framers' intent, and the precedents count for something if they point in one direction or another.ýý ýS189.

Therefore, this Court cannot concern itself with the moral aspect of the impugned amendment. The impugned amendment is the Will of the people expressed through Parliament.ýý (emphasis supplied)

23. The petitioner is a Councillor of the respondent No.3-Municipality and is amenable to the provisions of law,as contained in the Act. The Legislature has enacted the Statute with specific objects and intentions and has provided for the disqualification of a Councillor of the Municipality, if the provisions of Section 38(1) read with Section 11 are violated. In the face of the violation of any provision of the Statute, the law must prevail over any sentimental, emotional or moral argument that may be sought to be advanced to the contrary with a view to escaping the rigours of the Statute.

24. In T.A.Qureshi (Dr.) v. CIT, reported in (2007) 2 SCC 759 the Supreme Court has categorically held that, cases have to be decided on legal principles and not on one's own moral views. Dealing with the question of principles of law versus morality, the Supreme Court has held as under:

ýS16.

In our opinion, the High Court has adopted an emotional and moral approach rather than a legal approach. We fully agree with the High Court that the assessee was committing a highly immoral act in illegally manufacturing and selling heroin. However, cases are to be decided by the court on legal principles and not on one's own moral views. Law is different from morality, as the positivist jurists Bentham and Austin pointed out.ýý (emphasis supplied)

25. In the light of the above-quoted observations of the Supreme Court and in my considered opinion, the argument of the learned counsel for the petitioner to the effect that the motive of the petitioner was genuine and bonafide and the petitioner was only performing his moral and social duty, cannot be accepted in the face of a clear violation of the provisions of the statute regarding grant of a valid tender and work order, before supplying the bags of pesticide from the firm of the petitioner. As discussed herein-above, where there is a conflict between law and morality, there can be no doubt that the law of the land must prevail. The good intentions of the petitioner,if any, cannot be taken into consideration or be permitted to render the provisions of the Statute,nugatory.

26. It is equally well-settled that a thing must be done in the manner provided for, in the Statute. The Supreme Court in Gujarat Urja Vikas Nigam Ltd. v. Essar Power Ltd., reported in (2008) 4 SCC 755 has held as under:

ýS35. It is well settled that where a statute provides for a thing to be done in a particular manner, then it has to be done in that manner, and in no other manner( vide Chandra Kishore Jha v. Mahavir Prasad (SCC para 17 : AIR para 12), Dhanajaya Reddy v. State of Karnataka (SCC para 23 : AIR para 22), etc). Section 86(1)(f) provides a special manner of making references to an arbitrator in disputes between a licensee and a generating company. Hence by implication all other methods are barred.ýý

27. The facts and circumstances of the case, as discussed hereinabove, reveal that the requirement of obtaining a tender before supplying the bags of pesticide, has not been adhered to by the petitioner and nor is there a work order in his favour. The violation of the provisions of the Statute are writ large, on the face of it. In Ashokkumar Bhavsangbhai Chaudhary v. Director of Municipalities (Supra), this Court has held as under:

ýSIf a person aspires to hold an elective, public office under a particular statute, he must be prepared to submit to the restrictions imposed upon him, by that statute. Where a statute provides for necessary qualifications,without which a person cannot offer his candidature for an elective office, the candidate for that office must fulfil those qualifications. If he falls within the ambit of any prescribed disqualifications,it necessarily follows that he will not be qualified to contest or hold that elective, statutory office.ýý

28. As a result of the above discussion, I am of the considered opinion that the impugned order passed by the respondent No.1, suffers from no legal infirmity and does not warrant interference by the Court. There is no merit in the petition, which deserves to be dismissed. It is, accordingly dismissed. Rule is discharged.

29. At this stage, Mr.Dilip B.Rana, learned counsel for the petitioner prays that this judgment be kept in abeyance for a period of two weeks.This request is opposed by Ms.Mini M.Nair,learned Assistant Government Pleader for the respondents Nos.1 and 2 and Mr.H.M. Parikh,learned counsel for the respondent No.4 as well as Mr.N.V.Anjaria,learned counsel for the Election Commission (Civil Application No.6533 of 2008). Since, in my considered view, the impugned order does not deserve to be interfered with for reasons stated hereinabove, I am unable to accept the request of the learned counsel for the petitioner.

30. In view of the rejection of the writ petition, Civil Application No.6533 of 2008 does not survive and is disposed of accordingly. Notice is discharged.

(Smt.Abhilasha Kumari,J) arg

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Gujarat High Court