Gujarat High Court
Yashinbhai Ismailbhai Mandli vs State Of Gujarat on 18 December, 2020
Author: A.J.Desai
Bench: A.J.Desai, Nikhil S. Kariel
C/LPA/1272/2018 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1272 of 2018
In R/SPECIAL CIVIL APPLICATION NO. 8654 of 2018
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2018
In R/LETTERS PATENT APPEAL NO. 1272 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
==========================================================
1 Whether Reporters of Local Papers may be allowed to see the YES
judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law as to NO
the interpretation of the Constitution of India or any order made
thereunder ?
==========================================================
YASHINBHAI ISMAILBHAI MANDLI
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR DEEPAK P SANCHELA(2696) for the Appellant(s) No. 1
for the Respondent(s) No. 2,3
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No. 1
HARSHESH R KAKKAD(7813) for the Respondent(s) No. 4
MR RC KAKKAD(389) for the Respondent(s) No. 4
==========================================================
CORAM: HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 18/12/2020
CAV JUDGMENT
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C/LPA/1272/2018 CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE NIKHIL S. KARIEL)
1. The present Appeal has been preferred by the appellant challenging the judgment dated 20.09.2018 passed by the learned Single Judge confirming the decision of the Commissioner of Municipalities, Gujarat State, dated 06.06.2018 of removing the appellant from his office as Municipal Councillor, Viramgam Municipality, exercising powers under Section 37 of the Gujarat Municipalities Act, 1963. A show cause notice had been issued to the appellant on 07.03.2018 under Section 37 of the Gujarat Municipalities Act, 1963, inter alia calling upon him to show cause as to why he should not be removed as a Councillor of Viramgam Municipality for two separate charges mentioned in the said notice. After giving opportunity of hearing to the appellant, the Commissioner of Municipalities, Gujarat State, had passed the order impugned before the learned Single Judge, which order came to be confirmed vide the judgment impugned before us.
2. The facts as can be culled out from the oral submissions of learned Senior Counsels appearing for the appellant as well as for the Respondent Municipality and from the oral submissions of the learned AGP and after perusing the record, can be summed up as hereunder:
)a That the appellant appears to have constructed a shop by encroaching upon the property of the Municipality, shop being numbered as property bearing Sr. No.3205 and whereas vide a Resolution No.15 of the Executive Committee of the Viramgam Municipality dated 01.01.1985, it had been resolved that the Page 2 of 28 Downloaded on : Sat Dec 19 04:32:42 IST 2020 C/LPA/1272/2018 CAV JUDGMENT Chairman of the Executive Committee be given powers to regularize or remove the encroachment on the Custom Road, Opp. Petrol Pump, where the said shop was located. Such decision had been based on the report of the Encroachment Inspector and regularization was permissible, if the person concerned consents to follow the orders of the Municipality. The Chairman, Executive Committee appears to have regularized the construction, though none of the parties have produced any such order on record, whereas fact of such regularisation is neither disputed by the Municipality nor by the State Government. As a part of such regularization, yearly rent at the rate of Rs.1200/- also appears to have been fixed by the Municipality.
)b Later it is contended that the appellant had given the property to one Shri Usmangani Mustafa Mandli and whereas vide an undated letter by the appellant to the Viramgam Municipality inter alia informing that while the appellant is paying yearly rent at the rate of Rs.1200/- as well as tax to the Municipality and while the land belongs to the Municipality, the property belongs to the petitioner and the lease with regard to the same was requested to be transferred in the name of Shri Usmangani Mustafa Mandli and it was requested that the rent and tax may be recovered from the said Shri Usmangani Mandli. Vide another undated letter by Shri Usmangani Mandli it was informed to the Viramgam Municipality that he had purchased Page 3 of 28 Downloaded on : Sat Dec 19 04:32:42 IST 2020 C/LPA/1272/2018 CAV JUDGMENT the shop with the leasehold right from the appellant and the same may be transferred to his name. The said letter also contains an endorsement inter alia mentioning regarding a payment of Rs.2,500/- vide receipt No.81 on 29.12.1999. Copy of such receipt is also placed on record, which shows the said amount being accepted from Shri Ushmangani Mandli, however, the receipt does not mention as to why the amount had been paid / received. A report appears to have been submitted (to the Chairman, Executive Committee) informing about the existence of name of the appellant in demand register with regard to the land upon the Custom Road for which yearly rent of Rs.1200/- was being paid by the appellant. Said document also contains an endorsement, whereby the proposal to the incorporate the name of Shri Usmangani Mandli in rent register approved. It would be also pertinent to note here that the said document does not contain any date. Further, in the extract of the rent register of Viramgam Municipality the name of the appellant as tenant/ lessee for the land in question has been replaced with the name of Shri Usmangani Mandli.
)c It appears that the Chief Officer, Viramgam Municipality had issued order dated 29.12.2012, outward No.1078 to the Encroachment Inspector, whereby it was ordered by the Chief Officer that in the past, where the Chairman of the Executive Committee, Chairman Building Committee, of the Municipality has granted lease or permitted construction, on their private Page 4 of 28 Downloaded on : Sat Dec 19 04:32:42 IST 2020 C/LPA/1272/2018 CAV JUDGMENT letter-head, in such cases, the lease and / or construction permission is to be treated as cancelled and no rent should be recovered.
)d Thereafter, it appears that an application had been given by said Shri Usmangani Mandli which though undated, includes an endorsement of having been received by Viramgam Municipality on 13.04.2017, wherein said Shri Usmangani informs the Chief Officer, Viramgam Municipality that he is holding a property as tenant of the Municipality being a shop on Custom Road over which the name of the appellant is shown in tax bill, the property being located at Ward No.6, property No.3205 and whereas the said shop had been purchased by him and while his name is shown in the rent register, the same has not been shown in tax register and therefore, request was made that his name may be reflected in the tax register.
)e The bone of contention between the parties being a notarized affidavit / agreement which had been entered into by the appellant with the said Shri Usmangani Mandli on 01.05.2017 and whereas perusal of the recital of the said agreement reveals that the said land had been transferred by the appellant in the name of Shri Usmangani Mandli for employment and that neither the appellant nor anyone claiming through him, would have any objection with regard to the said transfer in future. It is also stated in the said agreement that the appellant would have no objection, if the name of Shri Usmangani Mandli is shown in the Page 5 of 28 Downloaded on : Sat Dec 19 04:32:42 IST 2020 C/LPA/1272/2018 CAV JUDGMENT land, rent and tax (registers).
)f It appears that on 16.10.2017, the Chief Officer of Viramgam Municipality had submitted a written complaint to the Police Sub- Inspector, Viramgam Town Police Station inter alia alleging that the appellant had threatened the Chief Officer by stating that he would not be allowed to sit in the office till the information sought by the appellant under the RTI Act is given to the appellant. Further, it is alleged by the Chief Officer that he had been insulted before his staff and he was compelled to leave his office. A statement of the Chief Officer recorded by the PSI, Viramgam Town Police Station dated 16.10.2017, reiterating the allegations made in the complaint, is also placed on record. )g A show cause notice came to be issued against the appellant on 07.03.2018 calling upon the appellant to show cause as to why he should not be removed from his office as Councillor of Viramgam Municipality in exercise of power under Section 37 of the Gujarat Municipalities Act. Said show cause notice had been issued by the Commissioner of Municipality and whereas it is mentioned in the said show cause notice that the appellant had misbehaved with the Chief Officer and had committed misconduct and furthermore, the appellant has misused the powers available to him and committed misconduct by transferring the property belonging to the Municipality of which he was tenant and thus, the appellant is alleged to have committed misconduct and on account of the same, the Page 6 of 28 Downloaded on : Sat Dec 19 04:32:42 IST 2020 C/LPA/1272/2018 CAV JUDGMENT Collector, Ahmedabad, had given a report to initiate proceedings under Section 37 of the Gujarat Municipalities Act against the appellant. Two charges have been mentioned in the said show cause notice dated 07.03.2018 and whereas the appellant had submitted substantial reply on 17.03.2018 to the show cause notice, whereby he had denied the allegations made against him and had tried to justify his position.
)h The Commissioner of Municipality after having given an opportunity of hearing to the appellant, had passed an order dated 06.06.2018, whereby he had removed the appellant from his post as Municipal Councillor in exercise of power available to him under Section 37 of the Gujarat Municipality Act. The Commissioner in the said order, had given his findings, which inter alia are that the contention of the appellant that the charge of misbehaving with the Chief Officer was completely false and counterblast since the Chief Officer was prejudiced as the appellant had made report against the Chief Officer for having done certain acts in abuse of his power was not acceptable. That the appellant was required as per Resolution No.15 (of 1988) to have his shop at Custom Road either regularized or removed, which he had not done. That the appellant had not made any submission with regard to the Resolution No.15 since other Resolutions of such nature of the same period have been set aside by the Collector. That the Chairman, Executive Committee had permitted increase in rent of the property in Page 7 of 28 Downloaded on : Sat Dec 19 04:32:42 IST 2020 C/LPA/1272/2018 CAV JUDGMENT question from Rs.1200/- to Rs.1500/- per year and had also permitted incorporation of the name of Shri Usmangani Mandli in T.P. register and rent register but vide order No.1078 dated 29.12.2012 of the Chief Officer, all such orders of the Chairman, Executive Committee of giving the land on rent or permitting the construction had been set aside and as a result of which, the rent for the said property had not recovered since 2012 yet the appellant had attempted to transfer the lease. That during the period when the Chief Officer had passed an order dated 29.12.2012, the appellant was a member of Municipality and he was well aware about the said order, yet by misusing powers derived by virtue of holding post of Municipal Councillor, the appellant had entered into an agreement dated 01.05.2017 on stamp paper of Rs.100/- permitting the change of name in favour of Shri Usmangani Mandli in the rent register and tax register. That while the appellant claims to have given the shop to Shri Usmangani Mandli voluntarily, Shri Usmangani Mandli has mentioned that the shop is purchased by him. Thus, the land / lease of the Municipality had been attempted to be transferred without prior permission of the State Government as is mandatory as per the provisions of Section 65(2) of the Gujarat Municipalities Act and thus, having entered into the agreement dated 01.05.2017, the appellant is alleged to have misused the powers derived by him as a member of the Municipality. That the appellant by misusing his position, had tried to transfer the Page 8 of 28 Downloaded on : Sat Dec 19 04:32:42 IST 2020 C/LPA/1272/2018 CAV JUDGMENT property, which was encroachment in the year 1988 and was also encroachment in the year 2017 and the said fact was well known to him, yet by preferring false affidavit, the appellant had attempted to transfer the said property and he had continued to occupy the property as encroachment, therefore, he had misused his position. That the appellant had committed misconduct by threatening the Chief Officer to assault him as he had assaulted the earlier Chief Officer, which is derived from the statement given by the Chief Officer to the Police Sub-Inspector, Viramgam Town Police Station on 16.10.2017. Based on the aforementioned conclusion, the Commissioner of Municipality had removed the appellant from his post as Municipal Councillor in exercise of powers derived by virtue of Section 37 of the Gujarat Municipalities Act, vide order dated 06.06.2018. )i The said order of removal dated 06.06.2018 had been impugned before the learned Single Judge and whereas the learned Single Judge vide judgment dated 20.09.2018 had been pleased to confirm the order of the Commissioner of the Municipality, being aggrieved by which, the appellant has challenged the same before us by way of the present Letters Patent Appeal.
3. Heard learned Senior Counsel Shri Mihir Thakore with learned Advocate Shri Dipak B. Sanchela for the appellant, learned Senior Counsel Mr. Gautam Joshi with learned Advocate Shri Harshesh Kakkad for Viramgam Municipality and learned AGP Shri Jashwant K. Shah for the State Government.
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4. Learned Senior Counsel Shri Thakore appearing for the petitioner has assailed the judgment inter alia contending that the transaction with Shri Usmangani Mandli transferring the property, had concluded in year 1999 and whereas during such period, the appellant was not a Municipal Councillor and thus, action could not be taken against him for the act allegedly committed by him, when he was not a Municipal Councillor. In support of such contention , learned Senior Counsel has relied upon certain documents viz. application by the appellant as well as Shri Usmangani Mandli, whereby they have confirmed the transfer of the rights of the appellant in favour of Shri Usmangani Mandli purportedly made in the year 1999 along with an endorsement dated 29.12.1999 referring to the receipt No.81 in the said application as well as the copy of receipt No.81 given by Viramgam Municipality confirming the receipt of Rs.2500/- from Shri Usmangani Mandli. Learned Senior Counsel also relied upon the undated noting, whereby the name of Shri Usmangani Mandli is permitted to be incorporated in the rent register. Learned Senior Counsel also relied upon the extract of rent register to show that there is clear incorporation of the name of Shri Usmangani Mandli in the said register and thus, the rights of the appellant had also been transferred to Shri Usmangani Mandli and incorporation of the name of Shri Usmangani Mandli confirms as much. Learned Senior Counsel has further contended that the affidavit dated 01.05.2017 was only for the purpose of incorporating the name of Shri Usmangani Mandli in tax register and merely by signing the said affidavit / agreement, it could not be contended that the appellant had tried to transfer the property of the Municipality without prior permission of the State Government. Thus according to learned Senior Page 10 of 28 Downloaded on : Sat Dec 19 04:32:42 IST 2020 C/LPA/1272/2018 CAV JUDGMENT Counsel, the transaction had concluded in the year 1999, when the appellant was not a Municipal Councillor and thus no action could be taken against the appellant in the year 2018 for such transfer. Learned Senior Counsel further submits that the learned Single Judge had not appreciated this contention and whereas the judgment relied upon in favour of the said contention in the case of Ajit Sinh Jadeja Vs. State of Gujarat reported in (2009) 3 GLR 166 as well as judgment in the case of Chhanalal A. Patel Vs. State of Gujarat reported in 1960 1 GLR 260 had not been properly appreciated. Learned Senior Counsel also joins an issue with the reliance placed upon the judgment of the Apex Court in the case of Janabai Vs Additional Commissioner reported in (2018) 18 SCC 196 by the learned Single Judge contending that the said judgment was on different set of facts and with regard to completely different provisions as compared to Section 37 of the Gujarat Municipalities Act. Learned Senior Counsel also joins an issue with findings of the learned Single Judge with regard to the allegations of misbehaving with the Chief Officer by contending that the neither was a criminal complaint registered by the Chief Officer nor the appellant been declared guilty by a competent Court. Moreover, according to learned Senior Counsel, the learned Single Judge ought not have relied upon the criminal complaints lodged against the appellant prior in point of time, than the alleged incident in question, where he had acquitted by the competent Court of law as well the complaint, which has been registered but where the appellant has not been declared guilty. Thus, contending learned Senior Counsel submits before us that the judgment of the learned Single Judge as well as the order passed by the Commissioner of Municipalities, which has been confirmed by judgment of learned Single Page 11 of 28 Downloaded on : Sat Dec 19 04:32:42 IST 2020 C/LPA/1272/2018 CAV JUDGMENT Judge may be set aside by us.
5. On the other hand, learned Senior Counsel Shri Gautam Joshi appearing with learned Advocate Shri Harshesh Kakkad for the Municipality has taken us through Resolution No.15 dated 19.07.1988 by the Executive Committee of Viramgam Municipality and has contended that as per the said Resolution, a decision had to be taken for regularizing the encroachment or for removing the same and whereas similarly situated persons had made applications for regularization of their encroachment and whereas no such application had been made by the appellant for regularization. Furthermore, it is contended by learned Senior Counsel that the documents relied upon by the appellant of the year 1999 including the applications made by the appellant as well as Shri Usmangani Mandli and receipt in favour of Shri Usmangani Mandli of the year 1999 etc. do not inspire much confidence. Learned Senior Counsel further draws our attention to the findings of the learned Single Judge at para 15.13 with regard to the extract of rent register, particularly at Sr. No.264, where learned Single Judge has noticed that name had been added subsequently and even it is written by different pen with different ink and the name of Shri Usmangani Mandli is not written at the time, when the names of other lessee have been mentioned. Thus, on strength of such observation by the learned Single Judge, the learned Senior Counsel attempts to question the veracity of incorporation of name of Shri Usmangani Mandli in the rent register. Further, learned Senior Counsel relies upon the order of the Chief Officer dated 29.12.2012, bearing outward No.1078 to the Encroachment Inspector, wherein it is ordered by the Chief Officer that in the past, where the Chairman of the Executive Committee of the Municipality has Page 12 of 28 Downloaded on : Sat Dec 19 04:32:42 IST 2020 C/LPA/1272/2018 CAV JUDGMENT granted the lease of land or permitted the construction on their private letter- head, in such cases, the lease and / or construction permission is to be treated as cancelled and no rent should be recovered. Relying upon the said order, it is contended by the learned Senior Counsel that even if the lease in favour of the appellant is treated to have been regularized by the Chairman, Executive Committee on the strength of Resolution No.15 of the year 1988 yet after order dated 29.12.2012, said regularization was to be treated as cancelled and since the appellant was a Municipal Councillor during the period when the Chief Officer had passed such order, he would be aware about the same and the affidavit / agreement dated 01.05.2017 was entered into by the appellant during the period when he was holding the office of Municipal Councillor, more particularly, after the order dated 29.12.2012 was passed by the Chief Officer. Learned Senior Counsel further contends that though the appellant attempts to submit that the transaction of transfer of rights in favour of Shri Usmangani Mandli had also taken place in the year 1999 and that the affidavit / agreement of 01.05.2017 was merely for the purpose of incorporating the name of Shri Usmangani Mandli in the tax register, yet perusal of the affidavit / agreement dated 01.05.2017 reveals that there is no reference to the transaction having taken place in the year 1999. It is contended by the learned Senior Counsel that had there been any transaction in the year 1999 than the same would have been referred to, in normal course of things, in the affidavit / agreement dated 01.05.2017. Thus according to Sr. Counsel the contention regarding the transactions having happened in the year 1999 was a sham. In so far as second allegation of having misbehaved / threatened the Chief Officer, learned Senior Counsel Page 13 of 28 Downloaded on : Sat Dec 19 04:32:42 IST 2020 C/LPA/1272/2018 CAV JUDGMENT contends that while it is unfortunate that the Police did not take the complaint made by the Chief Officer to its logical end, yet from the fact that the statement of the Chief Officer had been recorded on 16.10.2017 in connection with his complaint against the present appellant, therefore, the complaint of misbehavior / threat should be given due credence. Learned Senior Counsel further submits that reliance placed by the learned Single Judge on earlier complaints against the present appellant, were only to substantiate the contention that the appellant was a headstrong person, fully capable of committing act for which complaint had been made against him by the Chief Officer. Thus, contending learned Senior Counsel supports the order passed by the Commissioner of Municipalities, Gujarat State, confirmed by the judgment of the learned Single Judge and submits that this Court may not interfere with the same.
6. Learned AGP Shri Jashwant K. Shah has contended that regularization of encroachment, if any, on the property in question, stood cancelled by order dated 29.12.2012 by the Chief Officer of Viramgam Municipality and therefore, the appellant, thereafter could not have transferred the said property or entered into the agreement with regard to the said property without prior permission of the State Government as required under Section 65(2) of the Gujarat Municipalities Act and hence, removal by the State Government confirmed by the learned Single Judge was perfectly justified.
7. No other contentions have been raised by the learned Counsels for the respective parties.
8. Heard learned Senior Counsels appearing for the respective parties as Page 14 of 28 Downloaded on : Sat Dec 19 04:32:42 IST 2020 C/LPA/1272/2018 CAV JUDGMENT well as learned AGP on behalf of the State and perused the record as well as judgment of the learned Single Judge.
9. We notice that in the judgment of the learned Single Judge apart from the findings in so far as two main issues raised in the show cause notice served upon the appellant, dated 07.03.2018 and order impugned before the learned Single Judge dated 06.06.2018, the learned Single Judge has also given finding on an additional issue i.e. with regard to the declaration of the election during the pendency of the petition. We find that since the election has already been conducted and more particularly, since the findings on the said issue has not been assailed before us, we deem it fit not to express any opinion on the said issue.
10. In so far as the issue with regard to the alleged threat to the Chief Officer, we find substantial force in the submissions of the learned Senior Counsel for the appellant that the learned Single Judge ought not to have referred to and relied upon other complaints lodged prior in point of time against the appellant. In our considered opinion, the appellant could not have been removed on the ground of having threatened the Chief Officer since except for a written complaint and copy of the statement given to the Police Sub-Inspector, Viramgam Town Police Station, there is no material to substantiate the allegation of administering threat. Law on the issue being abundantly clear that in case of the criminal complaint, even if serious allegations are made against the accused, he cannot be held guilty unless he has been convicted for such charge by a Court of Law.
At this stage, it would be relevant to quote Section 11(1)(a)(i)(a) and (b) of the Page 15 of 28 Downloaded on : Sat Dec 19 04:32:42 IST 2020 C/LPA/1272/2018 CAV JUDGMENT Gujarat Municipalities Act.
Section 11(1) "(1) No person may be a councillor-
(a) Who (i) has, whether before or after the commencement of this Act, been convicted by a court in India-
(a) of an offence under 23[the Untouchability (Offences) Act. 1955,] or under the Bombay Prohibition Act, 1949; or
(b) of any other offence and sentenced to imprisonment for not less than six months, unless a period of four years or such lesser period as the State Government may allow in any particular case, has elapsed since his conviction and where he was sentenced to imprisonment, since his release;"
A plain reading of the above quoted portion would make it clear that the statute itself provides for disqualification of a Councillor upon conviction under the Untouchability (Offences) Act, 1955 or under the Bombay Prohibition Act, 1949. Furthermore, in case of conviction for any other offence, the sentence should not be less than six months. Thus, the statute itself permits disqualification on ground of conviction under two particular Acts and conviction and sentence for a minimum six months for any other offence. The important aspect being that a conviction is mandatory for disqualification of a Councillor and whereas even registration of a Criminal Complaint would not suffice.
11. In so far as the present case is concerned, we find that there is no criminal complaint much less an order of conviction against the appellant on the ground of having threatened the Chief Officer. Since there is a statement of the Chief Officer taken by the Police Sub-Inspector on record, it can be culled out that the Police Authority had initiated some proceedings, however as noted by the leaned Single Judge at para 16 the complaint by the Chief Page 16 of 28 Downloaded on : Sat Dec 19 04:32:42 IST 2020 C/LPA/1272/2018 CAV JUDGMENT Officer had not resulted in registration of FIR against the appellant. Further, the Chief Officer as the complainant, could always have pursued the proceedings in accordance with law in case he was aggrieved with the Investigating Agency not doing its duty properly, which also does not appear to have been done here. Thus we are of the considered opinion that the learned Single Judge ought not to have relied upon the criminal complaints where the appellant had also been acquitted as well as criminal complaint where no final finding had been given by any competent Court. We are also of the opinion that since the allegation in the show cause notice was restricted to the alleged incident which had happened on 16.10.2017, where the appellant had allegedly administered threat to the Chief Officer, the finding ought to have been with regard to the said alleged incident only. We are further of the opinion that since the appellant had been acquitted in all the criminal cases against him, which have gone for trial and since there is no final finding by a competent Court of Law with regard to one remaining complaint and more particularly, since the appellant had not been called upon to give his explanation in show cause notice with regard to other complaints, therefore, the learned Single Judge ought not to have relied upon the same to substantiate the finding of having committed misconduct with regard to the allegation of administering threat to the Chief Officer. For the reasons recorded hereinabove, we set aside the findings of the learned Single Judge with regard to the said issue.
12. As regards the findings of the learned Single Judge with regard to the allegation of having transferred the property of the Municipality without prior permission of the State Government, before we give our finding on the said Page 17 of 28 Downloaded on : Sat Dec 19 04:32:42 IST 2020 C/LPA/1272/2018 CAV JUDGMENT issue, we deem it fit to reproduce the provisions of Sections 37 and 65 of the Gujarat Municipalities Act to the extent they are relevant for the present purpose, hereunder:
"37(1) The State Government may remove from office-
(a)any Councillor of a municipality, [on its own motion or on receipt of]a recommendation of the municipality in that behalf supported by a majority of the total number of the then Councillor of the municipality, or
(b)any president or vice-president of a municipality.
If, after giving the Councillor, president or as the case may be vice-president an opportunity of being heard and giving due notice in that behalf to the municipality and after making such inquiry as it deems necessary, the State Government is of the opinion that the Councillor , President or as the case may be, vice-president has been guilty of misconduct in the discharge of his duties or of any disgraceful conduct or has become incapable of performing his duties under this Act.
(2) A president or vice-president removed under sub-
section (1) shall not be eligible for re-election as a president or vice-president during the remainder of the term of the municipality."
"65. Powers of municipality to sell, lease, and contract.- (1) A municipality shall be competent; subject to the restriction contained in sub-section (2), to lease, sell or otherwise transfer any moveable or immovable property which may, for the purposes of this Act, have become vested in or been acquired by it; and so far as it is not inconsistent with the provisions and purposes of this Act, to enter into and perform all such contracts as it may consider necessary or expedient in order to carry into effect the said provisions and purposes.
Page 18 of 28 Downloaded on : Sat Dec 19 04:32:42 IST 2020 C/LPA/1272/2018 CAV JUDGMENT (2) In the case of every lease or sale of land under sub-
section (1) of section 146 and of a lease of immovable property for a term exceeding ten years and of every sale or other transfer of such immovable property, the market value of which exceeds one lakh of rupees, the previous permission of the State Government is required:
[Provided that in the case of a lease or sale of land under sub-section (1) of section 146 no such permission shall be granted if such land forms a street or part of a street which has been declared to be a public street under section
148.]"
13. The second allegation or charge against the appellant is that he transferred/attempted to transfer property of the Municipality which has been leased out / rented to him without prior permission of the State Government as required under Section 65(2) of the Act. The submission of the appellant being that the act of transfer had concluded in the year 1999 and name of transferee had already been reflected in the rent register and rent already having been accepted from the transferee from the year 1999, mere signing of the affidavit on 01.05.2017, would not make the said action attract the rigors of Section 37 of the Gujarat Municipalities Act, more particularly, since transfer had already concluded in the year 1999 when the appellant was not a Municipal Councillor - the appellant having been elected as Municipal Councillor for the first time in the year 2005.
14. Before we give our findings on the above issue, we make it clear that we do not accept the submission of learned Senior Counsel for the respondent Municipality that the documents of the year 1999 do not inspire confidence since there is nothing on record to show that the Municipality had ever taken such a stand. There are no averments of such nature in the Page 19 of 28 Downloaded on : Sat Dec 19 04:32:42 IST 2020 C/LPA/1272/2018 CAV JUDGMENT affidavit in reply filed by the Municipality nor has anything been produced on record before us to show that the Municipality has initiated any inquiry into veracity of the documents relied upon by the appellant by itself or through any other agency. Thus, we do not find substance in the said submission of learned Senior Counsel for the respondent Municipality and we do not countenance the same.
15. Be that as it may, however, we find considerable force in the submission of the learned Senior Counsel for respondent Municipality, which submission has been reiterated by learned AGP appearing for the State that after the order passed by the Chief Officer dated 29.12.2012 of setting aside of the orders passed by the Chairman, Executive Committee / Chairman, Construction or the President on their personal letter-head with regard to giving any land on lease or permission to construct, the regularization of lease in favour of the appellant pursuant to the Resolution No.15 dated 19.07.1988 was to be treated as cancelled. We also find in this regard a relevant observation by the Commissioner of Municipality in the order dated 06.06.2018, impugned before the learned Single Judge, more particularly, at para 4 of the finding, that, after the order dated 29.12.2012 by the Chief Officer, the rent of the property has not been realized, which finding has not been controverted in the writ petition. Under such circumstances, after the order dated 29.12.2012 status of the property being shop No.3205 reverted from being an encroachment which had been regularized to a mere encroachment. Thus, by entering into deed dated 01.05.2017, the appellant holding office of the Municipal Councillor was attempting to transfer a property which he had constructed by encroaching upon the land of the Municipality. Page 20 of 28 Downloaded on : Sat Dec 19 04:32:42 IST 2020 C/LPA/1272/2018 CAV JUDGMENT
16. On other hand, we also find that the deed dated 01.05.2017 was not a mere affidavit for incorporating the name of Shri Usmangani Mandli in the tax register as had been contended on behalf of the appellant. A complete reading of said document leads us to a conclusion that same was in fact a deed of transfer and nothing else. A plain reading of affidavit / deed is suffice for arriving at such a conclusion. It is mentioned in the affidavit / deed that 'the appellant has given (transferred) the lease to Shri Usmangani Mandli for the purpose of his employment and henceforth neither the appellant nor anyone claiming through him would have any objection against the same and the same is guaranteed by the transferor'. After such recital, it is stated in the deed that 'the liability of rent and tax may be transferred in the name of Shri Usmangani Mandli for which the appellant has no objection'. Now, if the said deed was merely to facilitate the incorporation of name of Shri Usmangani Mandli in the tax register than the recital would not be in nature as found hereinabove. Furthermore, as rightly contended by learned Senior Counsel for respondent Municipality, the said deed does not contain any reference to the transactions of the year 1999 as would have been case if the deed was merely to facilitate incorporation of the name of Shri Usmangani Mandli in the tax register. Thus, we are of the opinion that the deed dated 01.05.2017 was not merely for the purpose of incorporating the name of Shri Usmangani Mandli in tax register rather it was a deed of transfer, more particularly, since all rights available to the appellant and any person claiming through him has been transferred in favour of Shri Usmangani Mandli.
17. Having come to the above conclusion, we do not accept the argument by learned Senior Counsel for the appellant that the transfer had been Page 21 of 28 Downloaded on : Sat Dec 19 04:32:42 IST 2020 C/LPA/1272/2018 CAV JUDGMENT effected in the year 1999 when the appellant was not holding the office of the Municipal Councillor and therefore, the show cause notice under Section 37 could not have been issued to him in the year 2018 culminating in the order dated 06.06.2018 removing the appellant from his office as Municipal Councillor. Consequently, we hold that the judgments of this Court in case of Ajit Sinh Jadeja Vs. State of Gujarat (Supra) and Chhanalal A. Patel Vs. State of Gujarat (Supra) have no applicability in the facts and circumstances of the case.
18. As regards whether the act of the appellant constitutes an act of misconduct as per Section 37 of the Gujarat Municipalities Act, we find that Section 37 does not use the word 'misconduct' only i.e. misconduct in its general sense. But the term used in the act is 'misconduct in discharge of his duties'. Thus, the scope of misconduct has been narrowed down to any misconduct committed by the Municipal Councillor in discharge of his official duties. At this stage, it would be worthwhile to refer to a judgment of Full Bench of this Court in the case of Mushtaq Ahmed Hasanbhai Mansuri Vs. V.C. Trivedi reported in 2003(1) GLR 745, wherein the Full Bench was inter alia concerned with the scope and purport of Section 37 of the Gujarat Municipalities Act. The observations of the Full Bench would be very relevant in facts scenario:
"4.3 Further, the word "misconduct" used in the phrase "has been guilty of misconduct in the discharge of his duties" means misconduct in office. As explained in Black's Law Dictionary, Sixth Edition by the Publisher's Editorial Staff, "misconduct" is any unlawful behaviour by a public officer in relation to the duties of his office, willful in character. The term embraces acts Page 22 of 28 Downloaded on : Sat Dec 19 04:32:42 IST 2020 C/LPA/1272/2018 CAV JUDGMENT which the office holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act. Misconduct is a transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, willful in character, improper or wrong behaviour; whereas the word "disgrace" means ignominy; shame; dishonour. Disgraceful conduct need not be circumscribed to something done in the course of one's duty as holder of the office. The word "disgrace" is frequently used with an odious implication and as a term of general disparagement and equally discreditable as applied to all persons. In this sense the term may imply disfavour, shame, contumely or even dishonour and is defined as meaning a cause of shame or reproach. The term "disgraceful" is synonymous with infamous. Therefore, a President or Vice President or the Councillor of a Municipality may be guilty of any disgraceful conduct in the discharge of his duties or otherwise also and it cannot be interpreted to mean that the disgraceful conduct must be in the discharge of duties and not otherwise. At this stage we may refer to well settled canon of interpretation that where it is necessary to give a provision a particular construction which is at variance with the way in which the section is punctuated, it may be read as though there were in fact punctuation where none appears on the face of the Act. In Re Naranjan Singh (1962) 1 Q.B. 211 section 10 of the Fugitive Offenders Act, 1881 was considered. The said section conferred on a superior court power to discharge a fugitive where "by reason of the trivial nature of the case, or by reason of the application for the return of a fugitive not being made in good faith in the interests of justice or otherwise... it would be unjust or oppressive or too severe a punishment to return" him. It was held that, apart from cases of a trivial nature, the court's discretion to discharge a fugitive could be exercised in any case in which the return of the man would be unjust or oppressive or too severe, and was not confined to cases in which the application appeared not to have been made in good faith. In other words, the section was given a wide construction, as though a comma had been inserted before "or otherwise". Applying the same principle to the provisions of section 37 of the Act, we find that the provision will have to be read as if comma had been inserted after the words "has been guilty of misconduct in the discharge of his duties".
So read, it becomes evident at once that the subsequently Page 23 of 28 Downloaded on : Sat Dec 19 04:32:42 IST 2020 C/LPA/1272/2018 CAV JUDGMENT following phrase "or of any disgraceful conduct" has no reference to the discharge of his duties and that disgraceful conduct can be committed otherwise also.
4.4 The scheme of section 37 of the Act is clear and unambiguous. As observed earlier, subsection (1) thereof empowers the State Government to remove any Councillor or President or the Vice President of a Municipality from the office
(a) if he is guilty of misconduct in the discharge of his duties, (b) or if he has been guilty of any disgraceful conduct or (c) if he has become incapable of performing his duties under the Act. A disgraceful conduct is much more grave than a mere misconduct. A disgraceful conduct brings disrepute not only to the Councillor who is guilty of such conduct, but would also cast a stigma upon the institution, namely, the Municipality. Webster gives the word "disgraceful" meaning as synonymous of "infamous", "detestable", "odius", "scandalous", "base", "vile", "shamefull", ignominious". Acts sanctioned by law are not disgraceful. The natural consequence of disgraceful conduct is that it brings the person committing the same into contempt among honourable persons. If the legislative intention had been to confine the power of removal in case of disgraceful conduct committed in the discharge of the duties, an express provision could have been made or the words "in the discharge of his duties" would have followed the second contingency also. Such being not the language employed by the Legislature, we are of the opinion that the words "in the discharge of his duties" do not qualify the words "disgraceful conduct" also. Disgraceful conduct has a reference to his behaviour as a citizen and not necessarily as a Councillor. If a person behaves disgracefully in the public or in the office of Municipal Council, he is liable to be removed from his office of Councillor notwithstanding the fact that the misconduct was not with reference to the discharge of his duties. Thus, the first question which is referred to the Larger Bench is answered by holding that the phrase "or of any disgraceful conduct" occurring in the section cannot be construed to mean that the disgraceful conduct must have been committed in the discharge of duties only and not otherwise. The President, Vice President or Councillor, as the case may be, can be removed from office if he is guilty of any disgraceful conduct which is committed in the discharge of duties or otherwise because the President, Vice President or Councillor Page 24 of 28 Downloaded on : Sat Dec 19 04:32:42 IST 2020 C/LPA/1272/2018 CAV JUDGMENT of a Municipality, as the case may be, is a public figure holding public post and is supposed to conduct himself in such a manner whether in the discharge of his duties or otherwise, that his conduct does not bring shame or dishonour or ignominy to himself or the institution. The decisions taking contrary view on this point stand overruled."
19. The term 'misconduct' has also been explained by the Apex Court in the case of Ravi Yashwant Bhoir Vs The Collector, District Raigad & others reported in 2012(4) SCC 407, paras 18 and 19.
"18, The expression "Misconduct" has to be understood as a transgression of some established and definite rule of action, a forbidden act, unlawful behaviour, willful in character. It may be synonymous as misdemeanour in propriety and mismanagement. In a particular case, negligence or carelessness may also be misconduct for example , when a watchman leaves his duty and goes to watch cinema though there may be no theft or loss to the institution but leaving the place of duty itself amounts to misconduct. It may be more serious in case of disciplinary forces.
19. Further, the expression "misconduct" has to be construed and understood in reference to the subject matter and context wherein the term occurs taking into consideration the scope and object of the statute which is being construed. Misconduct is to be measured in the terms of the nature of misconduct and it should be viewed with the consequences of misconduct as to whether it has been detrimental to the public interest."
20. In the order passed by the Commissioner of Municipality dated 06.06.2018 impugned before the learned Single Judge, there are two conclusions with regard to present charge against the appellant. The Commissioner holds that since the appellant, who was a Councillor during the period, when Chief Officer had passed the order dated 29.12.2012 yet he had Page 25 of 28 Downloaded on : Sat Dec 19 04:32:42 IST 2020 C/LPA/1272/2018 CAV JUDGMENT attempted to transfer the Government land / lease without prior permission as required under Section 65(2) of the Gujarat Municipalities Act by entering into agreement dated 01.05.2017. The Commissioner also holds that while the appellant states that he has transferred the shop to Shri Usmangani Mandli voluntarily, Shri Usmangani Mandli in his application states that he had purchased the property. Further, by entering into the agreement dated 01.05.2017, the appellant also tried to illegally transfer property, transfer the rent and the tax liability. That by misusing his position as Councillor, the appellant tried to transfer the lease, which was illegal in the year 1988 and illegal in the year 2017 and furthermore, inspite of knowing that the same was illegal, the appellant attempted to have the name of Shri Usmangani Mandli incorporated in the rent register and transfer the property. Now the question would be as to whether this act of the appellant was in discharge of his official duties to attract rigors of the term 'misconduct in discharge of his duties'. The term 'misconduct in discharge of duties' with regard to a Municipal Councillor is not defined in the Act or Rules made thereunder. We would therefore, be relying upon the observations of the Hon'ble Supreme Court in the case of Ravi Yashwant Bhoir Vs The Collector, District Raigad & others (Supra) as well as decision of the Full Bench of this Court in the case of Mushtaq Ahmed Hasanbhai Mansuri (Supra). In case of Ravi Yashwant Bhoir the Apex Court has observed that the expression `misconduct' has to be construed and understood in reference to the subject matter and context wherein the term occurs taking into consideration the scope and object of the statute which is being construed. The Apex Court further observed that misconduct is to be measured in the terms of the nature of misconduct and it should be viewed with the consequences of misconduct as to Page 26 of 28 Downloaded on : Sat Dec 19 04:32:42 IST 2020 C/LPA/1272/2018 CAV JUDGMENT whether it has been detrimental to the public interest. Full Bench of this Court in Mushtaq Ahmed Hasanbhai Mansuri inter alia observes that misconduct in the context of Section 37 would be an act which the office holder had no right to perform, acts performed improperly and failure to act in the face of an affirmative duty to act. It also means a transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, wilful in character, improper or wrong behavior.
21. Now examining the issue from the context of charge against the appellant, the appellant at the relevant point of time, being a Municipal Councillor when Chief Officer had passed the order dated 29.12.2012, whereby the regularization of lease in favour of the appellant pursuant to the Resolution No.15 dated 19.07.1988 was to be treated as cancelled. Thus the appellant had no legal claim whatsoever over the encroachment more particularly when the land on which the appellant had encroached was of the ownership of the Municipality. On the other hand the appellant as a Municipal Councillor was required to ensure that the land of the Municipality is not transferred without following due procedure of law and furthermore, being a Councillor, he was under an obligation to ensure that he does not engage in any unlawful transaction with regard to the property belonging to the Municipality. Thus the act of the appellant in attempting to transfer the Government land / lease without prior permission as required under Section 65(2) of the Gujarat Municipalities Act by entering into agreement dated 01.05.2017 when he was a Councillor was a 'transgression of a definite rule of action' i.e. transgression of Sec. 65(2) of the Gujarat Municipalities Act. Further the act was wilful in character since it has not been the case of the appellant that the agreement dated 01/05/2017 was entered into by him under duress Page 27 of 28 Downloaded on : Sat Dec 19 04:32:42 IST 2020 C/LPA/1272/2018 CAV JUDGMENT or coercion. Thus in our considered opinion the appellant has committed clear misconduct in discharge of his duties and therefore, action against him under Section 37 of the Gujarat Municipalities Act was just and warranted.
22. For the reasons stated hereinabove, we confirm the judgment dated 29.09.2018 passed by the learned Single Judge in so far as confirming the order of removal passed by the State Government through Commissioner of Municipalities dated 06.06.2018 on the ground of attempting to transfer the land of the Municipality, without prior permission of the State Government as envisaged under Sec. 65(2) of the Gujarat Municipalities Act.
23. Consequently, the present Letters Patent Appeal stands dismissed. The judgment dated 20.9.2018 passed by the learned Single Judge in Special Civil Application No.8654 of 2018 is hereby confirmed. In view of the order passed in this Appeal, Civil Application No.1 of 2018 for stay is disposed off. No order as to costs.
(A.J.DESAI, J) (NIKHIL S. KARIEL,J) DIPTI PATEL/YNVYAS Page 28 of 28 Downloaded on : Sat Dec 19 04:32:42 IST 2020