Gujarat High Court
Vala vs Dineshbhai on 15 June, 2011
Author: Chief Justice
Bench: S.J.Mukhopadhaya
Gujarat High Court Case Information System
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C/LPA/595/2011
CAV JUDGEMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No 595 of 2011
In
SPECIAL
CIVIL APPLICATION no 3900 of 2011
FOR
APPROVAL AND SIGNATURE:
HONOURABLE
THE CHIEF JUSTICE MR. S.J.MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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VALA
BHAVNABEN & 13....Appellant(s)
Versus
DINESHBHAI
MANJIBHAI HIRAPARA & 7....Respondent(s)
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Appearance:
MR
BHARAT T RAO as ADVOCATE for the Appellant(s) No. 1-14
MR
BM MANGUKIYA as ADVOCATE for the Respondent(s) No. 1
MS
BELA A PRAJAPATI as ADVOCATE for the Respondent(s) No. 1
MRS
MANISHA SHAH, AGP for the RESPONDENT(s) No. 2-6
DS
AFF.NOT FILED (N) for the RESPONDENT(s) No. 7
MR
DP JOSHI as ADVOCATE for the Respondent(s) No. 8
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CORAM:
HONOURABLE THE
CHIEF JUSTICE MR. S.J.MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
Date
: 15/06/2011
CAV
JUDGEMENT
(PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) The appellants have preferred this Appeal under clause 15 of the Letters Patent, calling in question the legality, validity and propriety of the judgment and order dated 30th March 2011 passed by the learned Single Judge in Special Civil Application No.3900/2011, whereby the learned Single Judge issued directions to the Collector, Rajkot to conduct election for the posts of President and Vice President of Jasdan Municipality (hereinafter referred to as 'the Municipality') pending bye-election of five seats for the posts of councillors which fell vacant on account of orders of disqualification.
The present Appeal has arisen in the backdrop of the following factual background:-
Respondent no.1 in this Appeal is one of the elected councillors of the Municipality. In the general election of the Municipality held in February 2008, 27 persons got elected as councillors of the Municipality. Out of 27 persons, 16 candidates were affiliated to political party Indian National Congress, 10 candidates were affiliated to political party Bharatiya Janta Party and 1 candidate got elected as an independent candidate.
After the first general election to a municipality, the Collector shall have to call the first general meeting of the Municipality for the election of the President and the Vice President within the prescribed period. Accordingly, the President and the Vice President were elected for the prescribed period. The term of the President of the Municipality expired and, therefore, the Collector, under the provisions of the Gujarat Municipalities Act, 1963 (for short, 'the Act'), called for a meeting to hold election on 4th September 2010.
The record reveals that despite the whip/mandate issued by the Indian National Congress, the same was violated and six councillors affiliated to the Indian National Congress defected and casted their votes against the mandate, for which proceedings were initiated before the authority under the provisions of the Gujarat Provisions for Disqualification of Members of Local Authorities for Defection Act, 1986. By order dated 11th January 2011 the competent authority under the Act disqualified five councillors.
Record further reveals that the order dated 11th January 2011 passed by the Designated Officer disqualifying five councillors was challenged before this Court by way of Special Civil Application No.741/2011 and the said Special Civil Application came to be dismissed by the learned Single Judge of this Court vide order dated 23rd February 2011.
It appears that during the pendency of the said petition i.e. Special Civil Application No.741/2011, the Collector, Rajkot, vide his communication dated 20th January 2011, directed to hold meeting of the general body of the Jasdan Municipality on 5th February 2011 for the purpose of holding the election of the President and the Vice President of the Jasdan Municipality. The Deputy Collector issued agenda/notice dated 31st January 2011 for convening the meeting on 5th February 2011.
It appears that as the said decision in the aforesaid Special Civil Application No.741/2011 was awaited, the meeting which was to be held by the Collector pursuant to the aforesaid agenda/notice was ordered to be postponed. In the meantime, vide order dated 4th February 2011, the Collector, Rajkot, directed to postpone the election of President and Vice President till 20th February 2011 as the election programme for the election of Ward No.9 was declared.
It appears that thereafter the Mamlatdar, Jasdan addressed a communication dated 8th February 2011 to the Chief Officer submitting that as the election is over the Collector may be informed for holding the election of President and Vice President of the Municipality.
In spite of the fact that the election of Ward No.9 was completed, the Collector did not convene the meeting for holding the election of President and Vice President of the Municipality. Thereafter, by agenda/notice dated 16th March 2011, the Deputy Collector, Rajkot, directed to convene the meeting on 23rd March 2011 for holding election of President and Vice President of the Municipality. In the mean time, before the election of the President and the Vice President of the Municipality could be conducted, the State Election Commission issued Notification dated 19th March 2011 for holding bye-election of Ward Nos.1, 2, 6 and 8 of the Jasdan Municipality as five councillors were ordered to be disqualified for violating the whip/mandate of the party. As the Notification came to be issued by the State Election Commission for bye-election for the post of five councillors, the Additional Collector, Rajkot, by communication/order dated 21st March 2011, directed to postpone the election of President and Vice President of the Municipality on the ground that on declaration of election programme by the State Election Commission for holding bye-election of five seats of councillors in Ward Nos.1, 2, 6 and 8 of the Jasdan Municipality, Code of Conduct would be applicable.
Being aggrieved by this decision of the Additional Collector, Rajkot postponing the election of President and Vice President of Jasdan Municipality till the completion of bye-election of five seats of councillors, petition came to be preferred being Special Civil Application No.3900/2011 by respondent no.1 as one of the elected members of Jasdan Municipality. He challenged the decision on various grounds.
The learned Single Judge took notice of the following facts while allowing the writ petition preferred by the respondent no.1:-
(a) The learned Single Judge, after going through the Code of Conduct, came to the conclusion that there was nothing in the Code of Conduct which would suggest that when bye-election of any ward of any municipality is declared, the election of President and Vice President of the municipality which has fallen due by efflux of time cannot be held.
(b) The learned Single Judge also took notice of the fact that the State Election Commission issued notification for bye-election of five posts of councillors which fell vacant on 19th March 2011. However, prior to 19th March 2011, the Deputy Collector, Rajkot had already directed to convene the special general meeting of Jasdan Municipality for holding election of President and Vice President, by communication dated 16th March 2011.
(c) The learned Single Judge also took notice of the fact that the Code of Conduct as per the Notification dated 21st March 2011 would be applicable only on and from 21st March 2011. If the decision for holding election of President and Vice President is already taken prior thereto and is fixed before the Code of Conduct comes into force, then the election of President and Vice President cannot be postponed.
(d) Considering the above referred aspects, the learned Single Judge allowed the petition by quashing and setting aside the communication/ order issued by the Additional Collector, Rajkot dated 21st March 2011 and further directed the concerned authority to issue fresh agenda/notice for convening special general meeting for holding election of President and Vice President of Jasdan Municipality at the earliest but not later than three days from the date of receipt of the order.
It deserves to be noted that in Special Civil Application No.3900/2011 the appellants herein were not parties.
Feeling aggrieved by this judgment and order passed by the learned Single Judge, the appellants, who are the elected members of Jasdan Municipality, preferred Civil Application No.4402/2011, seeking leave to prefer appeal against the order dated 30th March 2011 passed by the learned Single Judge in Special Civil Application No.3900/2011.
Taking into consideration the fact that appellant nos.1 to 11 are the elected councillors of Jasdan Municipality and appellant nos.12, 13 and 14 intended to take part in the bye-election for the post of councillors, we granted leave to the appellants to prefer appeal against the order dated 30th March 2011.
On 4th April 2011, this Court passed the following order:
Let notice be issued on respondent Nos. 1 and 7. Direct notice is permitted.
Ms Manisha Lavkumar, learned AGP has appeared and accepted notice on behalf of respondent Nos. 2, 4, 5 and 6. The counsel for the appellants will serve a copy of the paper book on her by tomorrow.
Post the matter 13th April, 2011.
During pendency of the appeal, the election of President and Vice President may proceed as per the order of the learned Single Judge, subject to the decision of the appeal, but in case of tie i.e. equal number of votes given in favour of the position of the persons, no special vote be cast by any authority without prior permission of the Court.
Civil Application No. 4436 of 2011 stands disposed of.
On 15th April 2011, this Court passed the following order:
It is informed that the President has been elected with 11 votes in his favour and 10 votes against him, subject to the decision of the appeal. Learned counsel appearing on behalf of the appellant submits that if those who will be elected in the election, to be held on 19th April 2011, if majority comes in favour of those who have been shown to be in minority (10 votes), in that case, the present elected President, who has been elected subject to the decision of the appeal, is to make room for fresh election of the President. To find out as to what will be the position after election of the rest of the five Municipal councillors which will be held on 19th April 2011, we adjourn the case. Post the matter on 25th April 2011 within five cases.
On 25th April 2011, this Court passed the following order:
Learned counsel on behalf of the appellant submits that all five persons have been elected in the bye-election and, therefore, fresh election of President and Vice President is required to be made. The earlier election was subject to the decision of the Appeal, as per Court's order.
In the circumstances, we allow the appellant to file additional affidavit. It will be desirable to implead the persons who have been elected as the President (Mrs.Radhaben Keshubhai Zapadia) and the Vice President (Mr.Dineshbhai Manjibhai Hirapara) during the pendency of the Appeal, as party respondents to the Appeal. They are accordingly ordered to be impleaded as party respondents.
Mr.Dineshbhai Manjibhai Hirapara has already been impleaded as first respondent and notices have been served. Therefore, only Mrs.Radhaben Keshubhai Zapadia be impleaded as party respondent no.8. Direct notice is permitted.
Post the matter on 4th May 2011.
On 6th May 2011, this Court finally heard the entire appeal.
We have heard learned counsel Mr.B.T.Rao appearing for the appellants, learned counsel Mr.B.M.Mangukiya appearing for respondent no.1 (original writ petitioner), learned AGP Mrs.Manisha Shah for respondent nos.2 to 6 and learned counsel Mr.D.P.Joshi appearing for respondent no.8.
Learned counsel for the appellants would vehemently submit that the decision of the Additional Collector, Rajkot to postpone the election of President and Vice President of Jasdan Municipality pending the bye-election for the post of five councillors was just and proper and the learned Single Judge ought not to have disturbed the said decision with further directions to conduct election for the post of President and Vice President pending the bye-election.
Learned counsel would further submit that the learned Single Judge failed to appreciate that the post of President in Jasdan Municipality is not vacant as the Collector has, in exercise of powers conferred upon him under Section 42(7) of the Act, appointed one of the councillors as Executive President pending the election of President and Vice President in the general board meeting so that the day-to-day function of the Municipality may not suffer.
Learned counsel would further submit that every councillor, whether elected or nominated, has a right to contest the election for the post of President. According to him, right is not effected even if the election order is not notified. He would submit that appellant nos.12 to 14 are aspiring candidates who have filled in their nomination papers. He would further submit that the learned Single Judge has not considered an important question that the Collector exercised powers postponing election because bye-election of five seats out of total 27 seats has been declared. He would submit that five councillors who would ultimately got elected in the bye-election would not get the right to cast their vote for the election of President and Vice President. He would submit that in this view of the matter also the decision of the Collector to postpone the election of President and Vice President was just and proper.
Learned counsel would further submit that when the election is already declared, the right of five persons gets crystalised, whether they are from one party or other party and out of these five persons, one may contest the election for President and Vice President. He would submit that the right to contest election for the post of President and Vice President has also been effected.
Learned counsel would further submit that this Court must pass an order to hold fresh election for the post of President and Vice President because in the bye-election all the five councillors who have been elected are affiliated with Bharatiya Janta Party whereas, the present President i.e. respondent no.8 is affiliated with Indian National Congress. According to him, respondent no.8 was elected as President when there were only 22 councillors and during the course of election respondent no.8 secured 11 votes whereas, the candidate for the post of President from Bharatiya Janta Party secured 10 votes and one councillor is an independent councillor. His main grievance appears to be that, as on today, since the President of the Municipality is affiliated with Indian National Congress and the majority in the Municipality is that of Bharatiya Janta Party, more particularly after declaration of the results of five seats in the bye-election the administration would get jeopardize and this should not happen in public interest.
Per contra, learned counsel Mr.B.M.Mangukiya appearing for respondent no.1 (original writ petitioner) has defended the judgment and order passed by the learned Single Judge. He would submit that no error much less an error of law can be said to have been committed by the learned Single Judge. He would further submit that even this Court permitted the election of President and Vice President to be completed pending the results of bye-election as well as this Appeal. He would further submit that now even though the Bharatiya Janta Party may be having full majority, there should not be any fresh election for the post of President and Vice President. The present President and the Vice President have the right to continue till the prescribed period.
Learned counsel appearing for respondent no.8 has also defended the judgment and order of the learned Single Judge. Learned counsel would submit that when the meeting was called for the election of President and Vice President, the State Election Commission had not issued notification for holding bye-election. He would submit that subsequent development cannot be a ground for postponing the election of President and Vice President. He would further submit that there is nothing in the Code of Conduct which prohibits holding of election for the post of President and Vice President pending bye-election of councillors for the post which would fall vacant due to any reason. Learned counsel has relied upon Section 43 of the Act to substantiate his contention that vacancy in municipality would not affect any act or proceeding of municipality or of any committee and would not invalidate its proceedings.
We have given our anxious thoughts and considerations to the respective contentions of the rival parties. We have also taken into consideration all other relevant aspects of the matter, including the provisions of the Gujarat Municipalities Act applicable in the present case.
Considering all these aspects, we are of the view that there is no merit in the present Appeal and no error much less an error of law can be said to have been committed by the learned Single Judge in passing the impugned order.
Before dealing with the contentions raised by the learned counsel for the appellants, it would be expedient to look into some of the provisions of the Gujarat Municipalities Act, 1963 which govern the proceedings so far as the election of President and Vice President is concerned and other relevant provisions.
Section 32 of the Act reads as under:
32.Election of President and Vice-President:-
After a general election to a municipality the Collector shall call the first general meeting of the municipality for the election of the President and the Vice-President within the prescribed period.
The meeting called under sub-section(1) shall be presided over by the Collector or such officer as the Collector may by order in writing appoint in this behalf. The procedure of the meeting shall be as prescribed by rules made by the State Government and the Collector or such officer shall have such powers as may be prescribed by the said rules but shall not have the right to vote.
No business other than the election of the president and the vice-president shall be transacted at such meeting.
If in the election of the president or the vice-president there is an equality of votes, the result of the election shall be decided by lot to be drawn in the presence of the Collector or the officer presiding in such manner as the Collector or as the case may be, the officer may determine.
Section
33 of the Act provides for the term of office of President and Vice President, which reads as under:
33.Term of office of President and Vice-President:-
(1)(a) The term of office of the President of a municipality constituted upon the general election held after the commencement of the Gujarat Municipalities (Amendment) Act, 2000 shall be two and a half years.
(b) The term of office of the President of a municipality existing on the commencement of the said Act, shall be one year. (c) Subject to the other provisions of this section, the President shall be eligible for re-election.(2)
If during his term of office under sub-section(1), the president or vice-president ceases to be a councillor he shall vacate the office held by him.
(3)The office of the President in every municipality shall be reserved by the State Government for Scheduled Castes, Scheduled Tribes, Backward Classes and women in the prescribed manner. Such reservation shall be made as nearly as may be, in the same proportion as is made under sub-section(3) of section 6 in their favour in the total number of seats to be filled in by direct election.
(4)On the expiry of the term of the office of the councillors of the municipality, the current administrative duties of the office of the president and of the vice-president of the municipality shall be carried on by such officer of the State Government, as it may by order specify in that behalf, until, such time as a new president and vice-president shall have been elected and shall have been over the charge of their duties.
Section 42 of the Act is with regard to filling up vacancies, which reads as under:
42.
Filling up of vacancies:-
When any vacancy occurs due to failure to elect the full number of councillors at a general election or due to the non-acceptance of office by a person elected to be a councillor, or due to an election set aside under provisions of sub-section(2) of section 14, or any vacancy of a councillor occurs due to any reason, the Chief Officer of the municipality and in the absence of the Chief Officer, such officer as the Collector may, by a general or special order, designate for the purpose shall within fifteen days from the date on which the vacancy occurs give a notice thereof to the State Election Commission.
On receipt of a notice under sub-section(1), the State Election Commission shall arrange for holding an election to fill the vacancy within six months from the date on which such vacancy has arises.
When any vacancy of a president or vice-president occurs due to any reason, the Chief Officer of the municipality and in the absence of the Chief Officer, such officer as the Collector may, by a general or special order, designate for the purpose shall within fifteen days from the date on which the vacancy occurs give a notice thereof to the Collector.
On receipt of a notice under sub-section(3), the Collector shall call, within twenty five days from the date of the receipt of the notice, a general meeting of the municipality for the election of the president or, as the case may be, vice-president and the provisions of sections 31 and 32 shall mutatis mutandis apply to such meetings and election.
A person elected as a councillor under sub-section(2) of this section or elected as a president or vice-president under sub-section(4) of this section shall hold office so long only as the councillor, president or vice-president in whose place he is elected, would have held office had the vacancy not occurred.
Notwithstanding anything contained in sub-section(2), where any vacancy of a councillor occurs within six months preceding the date on which the duration of the municipality expires, it shall not be filled.
When the office of both president and the vice-president become vacant simultaneously, any councillor as the Collector may authorize in this behalf, shall, pending the election of the president exercise all the powers and perform all the functions and duties of the president.
Section
43 of the Act speaks about the vacancy in municipality, etc. and whether the proceedings would be invalidated or not. It reads as under:
43.Vacancy in Municipality, etc., not to invalidate its proceedings:- No act or proceedings of the municipality or of any Committee constituted under this Act shall be questioned on account of any vacancy in its body.
Reliance has also been placed on the rules governing election of President and Vice President. They are known and recognized as the Gujarat Municipalities (President and Vice President) Election Rules, 1964 (for short, 'the Rules'). Emphasized has been placed on Rule 10 of the said Rules, which reads as under:
10.Power to call meeting at postponed date:- If at any meeting called for the election of the President, the election is not held for any reason whatsoever, the Presiding Officer shall have power to call the meeting on any other day.
The question which falls for our consideration in this Appeal is, as to whether pending the bye-election for the post of councillors of the Municipality on account of vacancy arising due to disqualification of some members, whether the election of President and Vice President which has fallen due as a result of the prescribed term coming to an end, can be postponed or deferred till the conclusion of the bye-elections along with the result of the same.
It is evident in the present case that out of 22 councillors, 5 councillors were ordered to be disqualified as they violated the whip/mandate of the party incurring disqualification under the provisions of the Disqualification Act. As a result of this vacancy, bye-elections were declared in the respective wards. Prior to that, the programm for the election of President and Vice President was also fixed and declared. It is only at that stage that the authority concerned took the view that the election for the post of President and Vice President be postponed and the bye-elections in the respective wards should be allowed to be completed.
It is evident that pursuant to the directions of the learned Single Judge the election of President and Vice President were held and completed. When the appellants came before this Court with the appeal, we did not grant any relief. As a result of it, the elections proceeded ahead. When the elections for the post of President and Vice President were held, there were 22 members in the Municipality as 5 members were already disqualified. Eleven votes were secured by respondent no.8 and she came to be declared as President whereas, the defeated candidate secured ten votes. In the meantime, the bye-elections were completed and in the said bye-elections, all five members which got elected as members are with the Bharatiya Janata Party. In this factual scenario now the majority in the Municipality is that of the Bharatiya Janata Party whereas, the President is of Indian National Congress. Only on this account, we are not at all inclined to take the view that fresh election for the post of President and Vice President be held. There is nothing in any of the provisions of the Gujarat Municipalities Act nor any other law which says that if the election for the post of President and Vice President have fallen due and simultaneously if bye-elections are also declared in some of the wards, then the election for the post of President and Vice President should not be held until the completion of the bye-elections. In this regard, we may refer to Section 43 of the Gujarat Municipalities Act, 1963. Section 43 says that no act or proceedings of the municipality or of any Committee constituted under this Act shall be questioned on account of any vacancy in its body. It is apparent on plain reading of the Section that vacancy referred to in Section 43 means casual vacancy . Though the word casual is not there in the Section but it has to be understood as casual vacancy . The words casual vacancy have not been defined under the Act. However, the similar meaning would be vacancy occurring otherwise then by efflux of time . Casual vacancy could be filled up by casual election as provided under Section 42 of the Act, which has been reproduced in the earlier part of the judgment.
Again on plain reading of Section 43 of the Act, the intention of the Statute is made clear. The intention is that the elected body must function despite existence of a vacancy or defect in its constitution.
We do not find any merit in the contention raised by the counsel for the appellants that the rights of the newly elected councillors in the bye-election should also be protected because if the election of President and Vice President precedes the bye-election, then the councillor who gets himself elected in the bye-election loses the right to cast his vote at the time of election of President and Vice President and, at the same time, he would also loses his right for contesting the election of President and Vice President. In our opinion, the appellants, more particularly, appellant nos.12 to 14 who contested the bye-election, who were yet to contest the election for the post of councillors when the election of President and Vice President was due and declared, would have no locus standi to seek such directions from the Court.
We have also examined the matter from one another angle. When any vacancy of a councillor occurs due to any reason, for example, in the present case disqualification of some members then, the State Election Commission, as per Section 42(2) of the Act, shall arrange for holding an election to fill the vacancy within six months from the date on which such vacancy arises. Take a case that the prescribed time period of the President and the Vice President is expiring and on efflux of time election of President and Vice President has again to be held and at the same time vacancy of a councillor or councillors occurs due to any reason then, whether the election of President and Vice President can be kept in abeyance for a period of six months. The answer has to be emphatically No . Though, in the present case, the time period was short but considering the matter from legal point of view, we do not find any justification in taking the view that the election of President and Vice President ought to have been deferred or kept in abeyance till the conclusion and the result of the bye-election.
Learned counsel, relying on Rule 10 of the Rules, submits that the Presiding Officer has got powers to call the meeting for the election of President on any other day, if for any reason the election is not held, on a particular date which is fixed. Relying on this provision of Rule 10, it is submitted that the Additional Collector, Rajkot was well within his powers to postpone the election of the President and the Vice President till the conclusion of the bye-election.
We are afraid, this contention is also devoid of any merit. Rule 10 takes care of a contingency wherein when the election is already fixed and if something goes wrong for some reasons and if the election is not convened then the same election can be convened on any other date by calling a meeting. For example, take a case where at the last minute one or two members are abducted and are not permitted to attend the meeting and if this is brought to the notice of the Presiding Officer then, the Presiding Officer can definitely take notice of the same and postpone the meeting. He has got powers thereafter once again to call the meeting on any other date. Rule 10 does not empower the authority concerned to postpone the election of President and Vice President solely on the ground that the State Election Commission has declared notification for bye-election in some of the wards for filling up the vacancy of councillors arising due to disqualification of some members.
Our attention has also been drawn to the two decisions relied upon by the learned counsels for the appellants. Reliance has been placed on the judgment of the Supreme Court in the case of Jayrajbhai Jayantibhai Patel v/s. Anilbhai Jayantibhai Patel and others, in 2006(3) G.L.H. 226. The ratio of this judgment has been relied upon to fortify the contention that the Additional Collector, Rajkot was justified and well within his powers to postpone the election of the President and the Vice President until the bye-elections for the post of councillors declared in some of the wards are completed with the results. We are afraid, such is not the proposition of law laid down by the Supreme Court. The Supreme Court has considered Rule 10 altogether in a different context. In the case before the Supreme Court, on the date when the election is to be held for the post of President and Vice President, two councillors were unlawfully detained and were not permitted to participate in the meeting. This fact was brought to the notice of the Presiding Officer. In spite of bringing this fact to the notice of the Presiding Officer, no steps were taken and the Presiding Officer proceeded ahead with the meeting and completed the election. In this background, the Supreme Court held as under:
We have no hesitation in holding that the detention of the two councillors, a few minutes before the election meeting was a relevant factor which ought to have been taken into account by the Presiding Officer to decide whether to continue with the election or to postpone it and call the meeting on some other day in terms of Rule
10. Failure to do so not only offends against procedural propriety, it makes his decision to go ahead with the election meeting perverse and irrational, a facet of unreasonableness, warranting interference under Art.226 of the Constitution. In this view of the matter, we are of the opinion that the High Court has not committed any error of law and/or jurisdiction in setting aside the election of the appellant as President of the Anand Municipality.
Reliance has been placed on the decision of the Division Bench of this Court in the case of Shantaben Nanjibhai Patel v/s. Ramiben Ramabhai Parmar and others, in 2006(2) G.L.H. 630. In the said case before the Division Bench, the challenge was to the constitutional validity of sub-rule (4) of Rule 9 of the Gujarat Municipalities (President and Vice-President) Election Rules, 1964. The second challenge was to the proceedings of the election for the post of President of Idar Municipality on the ground that the decision was in flagrant violence of the provisions of sub-rule(4) of Rule 9 of the Rules. In this background, the Division Bench, while deciding the issues, observed that the provisions of Rule 9 have the effect of providing that the President of the Municipality shall be elected by a clear majority of the councillors present and voting at the meeting. When there are more than two candidates validly nominated, sub-rules (4) and (5) ensure that there is no fractured verdict. The rationale underlying sub-rules (4) and (5) is to ensure that the President of the Municipality will have the mandate of the clear majority of the councillors so that he can run the municipal administration smoothly. If out of the 21 councillors, only 10 councillors are in favour of the President and the remaining 11 are against the President, the President would not be able to run the administration smoothly as his proposals can be turned down by majority of the councillors present at the meeting where such matters will be decided.
In the facts of above-referred case, the Division Bench dismissed the petition so far as the challenge to the vires of Rule 9(4) of the Rules is concerned. However, quashed and set aside the election of the President and the Vice President as the same was not found in accordance with Rule 9(4) of the Rules.
Taking clue from this judgment, learned counsel is trying to submit that here in the present case also now as the majority of the councillors are of Bharatiya Janata Party and the President is that of Indian National Congress, the administration will suffer as the President will not be able to run the administration smoothly as his proposals can be turned down by majority of the councillors. Firstly, in the present case, the election was only between two candidates, there was no third candidate in the fray like in the case which is being relied upon by the learned counsel. In this view of the matter, therefore, sub-rules (4) and (5) would not be applicable. Sub-rules (4) and (5) only ensure that there is no fractured verdict. In the present case, there is no case of any fractured verdict. On the date of the election, initially there were 22 councillors on the body of the Municipality and out of which, 11 candidates voted in favour of respondent no.8, 10 voted in favour of other candidate contesting the election and one was an independent candidate. The contention of the learned counsel that in public interest and for the purpose of smooth administration, once again the election for the post of President and Vice President must be held, cannot be accepted.
We have also noticed one more aspect of the matter. It appears as per the contention of the learned counsel for the appellants that the post of President and Vice President in Jasdan Municipality was not kept vacant as the Collector, in exercise of powers conferred upon him under Section 42(7) of the Act, appointed one of the councillors as Executive President pending the election of President and Vice President in the general board meeting so that the day-to-day function of the Municipality may not suffer.
We are afraid, even this could not have been done. We have already examined Section 42 of the Act and we have taken note of the fact that Section 42 deals only with casual vacancies , which may occur on account of some contingency. Therefore, Section 42(7) of the Act will apply only if a casual vacancy is to be filled up. It is only if the office of both, President and Vice President become vacant on account of some contingency then, in that case, any councillor as the Collector may authorise in this behalf shall, pending the election of the President, exercise all the powers and perform all the functions and duties of the President. However, if the election of a President and Vice President is to be held because of efflux of time i.e. on account of earlier term fixed coming to an end then, in that case, the election of the President and the Vice President has to be held as per Sections 32 and 33 of the Act alone and not under Section 42(7) of the Act. In the present case, the term of the President and the Vice President was expiring due to efflux of time, which was earlier fixed and prescribed at the time of electing the President and the Vice President.
In the aforesaid view of the matter, we are of the view that pending the bye-elections for the post of councillors of the Municipality on account of vacancy arising due to disqualification of few members, the election of the President and the Vice President which falls due as a result of efflux of time or prescribed term coming to an end, cannot be postponed, deferred or kept in abeyance till the conclusion of the bye-elections along with the result of the same.
In view of the aforesaid discussion, we find no merit in this Appeal. The learned Single Judge has not committed any error much less an error of law warranting any interference at our end in this present Appeal.
In this view of the matter, the Appeal deserves to be dismissed and accordingly the same is ordered to be dismissed with no order as to cost.
(S.J.MUKHOPADHAYA, CJ.) (J.B.PARDIWALA, J.) /MOIN Page 36 of 37 Top