Nitinkumar M. Brahmbhatt vs State Of Gujarat And Anr. on 30 August, 2006

[Cites 51, Cited by 3]

Gujarat High Court

Nitinkumar M. Brahmbhatt vs State Of Gujarat And Anr. on 30 August, 2006

1. For our convenience, we are taking facts from Special Civil Application No. 5949 of 1995, which in nutshell, are that, the petitioner was elected as Councillor of the General Body of the respondent no. 2-Khambhat Municipality, the Municipality had been constituted under the provisions of the Gujarat Municipalities Act, 1963 ["the Act" in short], the State Government under the Act is the competent authority to supervise the functions of the respondent no. 2 and the Director of Municipalities is the officer entrusted with the duties for supervision, and the State Government, acting through Director of Municipalities, performs its functions under the Act.

2. The petitioner was elected as Councillor in the General Body of the respondent no.2 w.e.f. 5.11.1989. It is the claim of the petitioner that being an elected member, he was representing the common interest of the public which had elected him.

3. According to the petitioner, Panchayats and Municipalities are creating third tier in the administration and are virtually local self-administration which would also be clear from Part-IXA and Articles 243P to 243ZG of the Constitution of India.

4. On 30th July, 1993, President of the respondent no.2 and the Executive Committee passed a resolution, resolving that as many as 22 Class-III employees be given substantive appointments on regular/permanent basis. It is also the claim of the petitioner that these employees were working as Rojamdars on various posts with the respondent no. 2. The Collector, after receiving information that as many as 22 persons have been appointed, exercising his powers under Section 258 of the Act initiated proceedings, which culminated in the final order dated Page 1766 18.9.1993 cancelling the said appointments of those 22 persons, Annexure: A is the said order.

5. The Collector, in his order, found that the representatives of the public were acting dishonestly, contrary to the requirements of law such resolution was passed, the resolution was made in hot haste and even without getting such resolution approved by the General Body appointments were given in the midnight on 30th July, 1993, that is, the date of the resolution and all such persons were held to have taken charge on the very same day. Number of the persons had submitted to the Collector that they were senior to the fresh appointees or persons who were regularised in services and in any case, the appointments were made as a result of favouritism and nepotism. The Collector found that from amongst the persons appointed, [1] Shri Bhagvandas Sukhlal Raval was son-in-law of Shri Dashrathbhai Motibhai Raval - Chairman of the Executive Committee, [2] Shri Rameshchandra Buddhilal Rana was sister's son/nephew of Shri Mohanbhai Himmatlal Rana - Chairman of Water Works Committee and the Member of Executive Committee, [3] Shri Gunvantbhai Hirabhai Vaghri happened to be real brother of Shri Lakhshmanbhai Hirabhai Valmik - Member of Executive Committee, [4] Shri Yogeshkumar M. Brahmbhatt was real brother of Shri Nitinbhai M. Brahmbhatt - Member of Executive Committee, [5] Shri Mukeshbhai Ramanlal Chunara happened to be son-in-law of Shri Jayrambhai Kanjibhai Chunara - Chairman of Light Committee, [6] Shri Jivanlal Jinabhai Rana happened to be the sister's husband of Shri Natubhai Fulabhai Rana - Chairman of Garden Committee and [7] Shri Fulabhai Jamnadas Rana happened to be sister's son/nephew of Shri Bhagvatilal Manilal Rana - Member of Executive Committee. The Collector also recorded that apart from the above, there were other illegalities in appointment. The Collector also found that the Municipality, on one hand, was making submissions before the Industrial Court that due to weak financial position of the Nagarpalika, it was not possible for them to make permanent the workers, while on the other hand, the appointments of favoured and chosen few, who happened to be the relatives, were made and permanent posts were offered. The Collector also found that Nagarpalika was suffering financial crunch and because of the said exigency, it was not possible for Nagarpalika to make payment of the salary regularly to its permanent staff. He also found that in the resolution dated 30th July, 1993, it was clearly mentioned that it should be got confirmed in the General Body, but without getting the resolution confirmed, the select candidates were directed to be interviewed on 30th July, 1993. Interviews were taken on 30th July, 1993, selection was made and the Executive Committee passed Resolutions No. 290 to 296 on the very same day. After considering the pros and cons, the Collector observed that the impugned Resolution No. 278, dated 26th July, 1993 as well as resolutions dated 30th July, 1993 bearing Nos. 290 to 296 passed by the Executive Committee as well as the resolution of General Body dated 9.9.1993 confirming the resolution dated 30.7.93 shall remain suspended and Nagarpalika should restore the position as it stood prior to the resolutions. The said order was challenged Page 1767 before this Court and this Court directed the Collector to hear the employees/petitioners and take a fresh decision. Thereafter the Collector heard the parties and passed orders on 18.9.1993, which was impugned before this Court in Special Civil Application No. 9870 of 1993. The said petition was dismissed on 1.10.1993. After going through the facts, a learned Single Judge of this Court, dismissing the petition, observed as under:

It is not only surprising, but shocking that a small town municipality at Khambhat is acting in a manner which is opposed to all principles of democracy, and the only guiding factor for the action which is sought to be salvaged is nepotism. Khambhat in Kheda District is a small town where there is a Municipality. It is headed by the President, who ideally speaking is supposed to be elected Representative of the people. As the facts of the case show, he and his associates have conducted the affairs of the Municipality as if it is their private firm. The impugned order of the Collector, Kheda, is a detailed order running into 18 pages (from 33 to 50), wherein the Collector has, from pages 46 onwards recorded 11 findings, which go to show that the President of Khambhat Municipality has converted the Municipality into his own private affairs with the assistance of the Chairman of various Committees. On the other hand, the Municipality is not in a position to pay the salaries of the employees who are serving the Municipality since long on the specious plea that it has no funds. Similarly, in the dispute between other employees and the Municipality pending in the Industrial Forum, the Municipality has taken the stand that its coffers are all empty. Salaries of the permanent employees from February to July, 1993 totalling to Rs. 44 lacs and odd have not been paid. Salaries of several daily-wagers totalling to Rs. 8 lacs and odd have not been paid. Electricity bill for the month of August, of the order of about Rs. 82,000/- and odd is not paid. The arrears of the dues payable to the Gujarat Electricity Board totalling to Rs. 3 lacs and odd have not been paid. All these "not paid" are because the Municipality has no funds - a position which is not disputed. On the other hand, we are asked to gulp a statement that on July 26, 1993, a notice was displayed on the notice board of the municipal office inviting applications for recruitment of regular fresh employees wherein, even the persons who had earlier worked as rojamdars were permitted to apply. The facts discussed by the Collector in his impugned order show that though the last date for receiving the applications was July 29, 1999, the notice on the Notice Board of the Municipality was removed from the Notice Board within about one hour of its affixation. We are further asked to believe that this Municipality and its recruitment board headed by the President interviewed 85 candidates on July 30, 1993, and appointment orders were issued at about 1.0 A.M. on the night between 30th & 31st July, 1993, in favour of 25 persons. One such appointment order was in favour of one Kanubhai Ambalal Patel, who was also interviewed by the Interview Committee headed by the President, but the order in Page 1768 favour of Kanubhai Ambalal Patel was not given to him for, as stated by Kanubhai before the Collector, and which statement is not disputed the President asked the said Kanubhai to give him some financial favour, and Kanubhai refused to oblige and therefore, the President under his own signature, cancelled that appointment, and the remaining 24 orders were issued. The orders were issued on the midnight of July 30 and July 31, 1993 and yet the records have been created to show that these 24 appointees have taken charge on 30th July and have performed duties on 30th July, 1993.

xxx xxx xxx xxx xxx I have hereinabove pointed out from the impugned order of the Collector that large-scale irregularities and illegalities and nepotism have been resorted to by the President, Khambhat Municipality. It would be for the concerned authorities to consider whether any action is called for against him. As I understand, the Director of Municipalities would be the proper authority to consider this question. It is, therefore, ordered that a copy of this order be sent to the Director of Municipalities. That authority may go into the question and consider whether any action against the President, Khambhat Municipality is called for, and may take appropriate decision.

6. The learned Single Judge also observed that some of the appointees were woken up at mid-night from their house and were whisked away in the vehicles of the Municipality and were taken to Mahi Canal Guest House, where, appointment orders were given to them. The learned Single Judge also found that 48 years old woman came to be appointed and certain people could not be appointed, because, they could not grease hands of the Chairman of the Committee. The learned Single Judge also found that the Municipality conveniently flouted the orders passed by the Industrial Court and also recorded opinion that Khambhat Municipality was habitual in flouting all rules and regulations. The Court after observing that the appointments were de hors the rules and contrary to law, refused to interfere in the matter. The Court also observed that large-scale irregularities and illegalities and nepotism were resorted to by the President, Khambhat Municipality therefore it would be for the concerned authorities to consider whether any action was called for or not. The Court directed that copy of the order be sent to the Director of Municipalities.

7. On 25.10.1993, Director of Municipalities issued notices to number of the persons asking them to show cause as to why action be not taken against them under Section 37 of the Act. The Collector also asked them to show cause that why they should not be removed from the membership of Khambhat Municipality for committing misconduct in making illegal appointments by way of resolution and by casting vote inspite of the fact that a Trustee is required to look after management of Nagarpalika. Replies were filed and submissions were also made before the Director. The Director recorded that the financial position of the Municipality was not sound and the employees of the Municipality could hardly be paid their salary. The Director observed Page 1769 that knowing all these facts and after showing great haste, such resolution was mandated and persons relations of a group with ulterior motives were appointed. The Director also found that the resolutions were bad.

8. The Councillors submitted before the Director that Councillors who are elected by the public are not fully aware of the provisions of law and as such, are ignorant with regard to matters of administration and procedure. It was submitted to the Director that assuming that resolution was bad, conduct of the Councillors was not that bad which could lead to punishment of their removal under Section 37 of the Act. The Director found that the elected members failed in discharging their duties as Trustees. He also found that to cast vote is the right of the member, but if the vote is cast against the interest of Nagarpalika with ulterior motives, then, that would be bad. Exercising his powers under Section 37[1][c] of the Act, the Director removed the members from the post held by them in the Khambhat Municipality.

9. It is to be seen that the resolution passed by the Municipality has not been submitted before the Court nor copy of the show cause notice was submitted though the order dated 5.4.1994 is being challenged before us. It is also to be recorded that by way of application for amendment, the petitioners sought to challenge the constitutional validity of Section 37 of the Act.

10. Mr. Y.N. Oza, learned Senior Counsel for the petitioners has vehemently submitted that;

[a] The action taken by the Director is contrary to law, because, if right to vote is available to a member, then, wrong exercise of the right would not lead to punishment of removal.

[b] The petitioners were simply parties to the resolution and could not make orders of appointment.

[c] Resolutions made by the Executive Committee, which culminated into appointment orders were never given any effect and as such, no loss ever occasioned to the Municipality.

[d] The action is bad, because, it would always be for the members of the Executive Committee to pass one resolution or the other and whether same is to be implemented or not is to be seen by the administrative officers of the Municipality.

[e] Provisions contained in Section 37 of the Act are ultra vires the Constitution, because, Part-IXA of the Constitution simply talks of creation and constitution of a Municipality, disqualifications for contesting election, mode of the election and election of a Corporator/Councillor and as Part-IXA does not make any provision for removal of an elected Councillor, the State Government could not make law in that regard.

[f] If the power under Section 37 is held to be complete valid and absolute, then, any government can remove any elected body if the said elected body is of a different group or different political alliance.

Page 1770 [g] The power conferred upon the State or its officers under Section 37 are unbriddled, uncanalised and put a fetter on the right of an elected member.

[h] Section 37 runs counter to the constitutional mandate introduced by 73rd and 74th constitutional amendment.

[i] If the Parliament wanted three-tier government in place of two-tier government and the members of the Parliament or Legislative Assembly cannot be removed, then, any member of Panchayat, Municipality or any other local self-government cannot be removed and as such, Section 37 conferring powers upon the State to remove member of a Municipality is bad.

[j] Protection available to Members of Parliament and Members of Legislative Assembly under Article 105/194 must be read in favour of the Councillors and consequently Section 37 be held ultra vires the Constitution.

11. On the other hand, Mr. Kamal B. Trivedi, learned Advocate General assisted by Mr. Dipen Desai, learned AGP, supported the order and submitted that Section 37 is within the legislative competence of the State, it does not confer unbriddled powers, but it authorises the State Government to take an action against the persons who are committing misconduct or acting against the interest of the Municipality of which, they virtually are trustee or, who are acting fraudulently and dishonestly and are showing utter favouritism and nepotism. It is submitted that if such powers are not reserved in favour of the State Government and absolute free hand is given to the elected member, then, it would be impossible for a Municipality to save itself from the clutches of misconduct and misdeeds of the elected body. It is submitted that Municipality is an institution which also needs protection and everything cannot be left in the hands of the elected body. It is submitted that if favouritism and nepotism is shown and a resolution is passed to amass wealth and to create a perfect foundation or pedestal in favour of the relations and chosen few or the resolution is made with ulterior motives to receive extra money, then, such conduct can always be considered by the State. It is submitted that the right to vote is a statutory right and ordinarily reasons for voting in favour or against the resolution cannot be gone into, but in a given case, where reasons are floating on the surface of the record and right to vote has been exercised with ulterior motives to favour some and to earn money illegally, then, the intention will have to be seen specially when the Chief Executive Officer was informing all concerned that the financial condition of the Municipality was bad, it was unable to pay salary to regular staff and the proposed action would be contrary to law.

12. Mr. Oza also submitted that if under Articles 105 and 194 of the Constitution of India, an elected member of Parliament or Legislative Assembly cannot be removed by the Central Government or the State Government, then, any person being member of the third tier of the government also cannot be removed. It is submitted that Division Bench of this Court in the matter of Rasikchandra Devshanker Acharya and Ors. v. State of Gujarat and Ors. Page 1771 Reported in 1995 [1] GLR 36, has observed that the intention of the Legislature was to create third tier of government and bring local self-government at par with the first two tiers and; if the first two tiers cannot be disturbed by the administrative action, then, third tier which stands at par with the first two tiers also cannot be disturbed.

13. Taking an exception to this argument, placing reliance upon Articles 243P and 243V, Mr. Trivedi, learned Advocate General submitted that question of disqualification would have two stages; first one would be before the election and the second would come into operation after the elections are over. According to him, if a person is disqualified before election, then, he would not be allowed to contest the election and if a person attains disqualification after the election, then, he cannot be allowed to hold the post. He submits that the amendment in the Constitution provides that disqualification can be provided under any law made by the State. Referring to the judgment of the Supreme Court in the matter of Ram Beti etc.etc. v. District Panchayat Rajadhikari and Ors. , it was submitted that question of removal qua No Confidence Motion was considered by the Supreme Court and it was found that provisions relating to removal from office are not bad. Taking shelter under the said judgment, it is submitted that the removal from the office on resolution of no-confidence, though, is not provided in Part IXA of the Constitution, but the Supreme Court had observed that such person, who loses confidence can always be removed. Mr. Trivedi submits that if argument of Mr. Oza is accepted, it would lead to absolute anarchism and people who are anti-social elements or muscle men would always rule and run the Municipality, they would make conduction of the meetings impossible and it may not be possible for any Municipality to survive under the onslaught of such persons.

14. Placing reliance upon certain judgment of the Supreme Court, which we shall deal separately, it was contended by Mr. Oza that the law must be interpreted in a manner which subserves justice and does not unnecessarily strengthen the hands of the executive/government. He submits that if the Constitution wanted that elected member can be removed from his office, then, such provision could always be made by the Parliament. Mr. Trivedi, taking an exception to this argument, submitted that on one side, the petitioners are submitting that in the absence of such provision, it must be presumed that the State Legislature is not competent to make such law, but at the same time, even in the absence of provisions like Articles 105 and 194 in favour of the petitioners, the petitioners are submitting that protection flowing from these two Articles must be extended in favour of the petitioners. It is submitted that the petitioner is trying to blow hot and cold at the same time. It is submitted by Mr. Trivedi that the manner in which the resolution was passed would speak for itself and if Section 37 is not held to be constitutionally valid, consequences would be devastating. It is to be noted that the hearing went on for few days.

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15. Mr. Oza, learned Senior Advocate has virtually based his case upon a Division Bench judgment of this Court in the matter of Rasikchandra Devshanker Acharya and Ors. v. State of Gujarat and Ors. reported in 1995 [1] GLR 36. Referring to certain paragraphs of the said judgment it is sought to be contended that by introduction of Part-IX-A to the Constitution of India, the local bodies have been put at par with the Parliament and the State Legislative Assembly. It is also submitted that if for any action of a Member of Parliament or Member of Legislative Assembly on the Floor of the House the Court cannot take action nor government can take any action against such defaulting or misconducting member, then, in case of a Member of the House of a Parliament, the State would not be entitled to take any action. It is also submitted that from the objects and reasons behind the introduction of Part-IX-A and excerpts from the speech of the Minister, it would be clear that the local self-government, that is, Municipal Corporation, Municipality and Panchayat are kept at par with the Parliament and the Legislative Assembly.

16. Before we proceed to consider the argument, it would be obligatory upon us to refer to yet another question argued by the parties at length which relates to manner of interpretation that whether the Court is entitled to interprete a statute in a particular manner, whether the Court can find casus omissus in a given case and whether the Court can lay down or supply the missing words in the language of the statute.

17. It is to be seen that in the matter of State of Bihar and Ors. v. Sm. Charusila Dasi , the Supreme Court has observed that it is now well settled that there is a general presumption that the legislature does not intend to exceed its jurisdiction and it is a sound principle of construction that the act of a sovereign legislature should, if possible, receive such an interpretation as will make it operative and not inoperative. While making these observations, the Apex Court also observed that ordinarily, law should be held to be valid. In the matter of Kedar Nath v. State of Bihar, reported in AIR 1962 SC 995, while appreciating the provisions of Sections 124A and 505 of IPC, the Supreme Court observed that it is well settled that if certain provisions of law construed in one way would make them consistent with the Constitution, and another interpretation would render them unconstitutional, the Court would lean in favour of the former construction. The Court also observed that while interpreting an enactment, the Court should have regard not merely to the literal meaning of the words used, but also take into consideration the antecedent history of the legislation, its purpose and the mischief it seeks to suppress. Viewed in that light, the provisions of law should be so construed as to limit their application to acts so performed.

18. In the matter of Lalit Mohan Pande v. Pooran Singh and Ors. , while appreciating the provisions of U.P. Jilla Panchayats Page 1773 (Election of Adhyaksha and Up-Adhyaksha and Settlement of Election Disputes) Rules, 1994, the Supreme Court observed that a construction which would make the provisions more effective and workable must be adopted without doing too much violence to the language used. Every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifest absurdity or anomalous results which could not have been intended by the legislature. In the said matter, election to the post of Adhyaksha was to be conducted on first-preference votes. After the exclusion of the candidate securing the lowest number of such votes, the remaining two got equal number of second-preference votes. A question arose that if there was a tie, then, what should have been done. The Apex Court observed that the candidate getting the highest number of first-preference votes although not securing the quota, would be entitled to be declared elected. The Supreme Court observed that non-evisagement of such a situation would not affect the ambit of the provisions of the Rules. The Supreme Court observed that in a situation which was unavoidable, then, reasonable approach should be taken. The Supreme Court, relying upon the observations made in the said matter to the effect that "... an intention to produce unreasonable result, is not to be embodied to statute if there is some other construction available." The Supreme Court also observed that where literal application of the words would defeat obvious intention of the legislation and produce wholly unreasonable result, the Court must do some violence to the words and so achieve that obvious intention to produce rational construction.

19. During course of the arguments, it was repeatedly submitted by Mr. Oza, Senior Advocate that the intention of the government which can be read and understood from the objects and reasons and speech of the Minister that there should be no interference or very little interference by the government and to give equal protection to the Councilors, Corporators or Members of the Panchayats, which are being enjoyed by the Members of Parliament or Members of the Legislative Assembly. His submission is that the intention of the government would be decisive factor in a case where there are certain omissions in the provisions of law and such intention of the government should always be read in the provisions of law.

20. We are unable to concede to this argument firstly because, the observations made by the Court in a particular case should always be read in reference to context. If stray sentences are picked up and read as law, then, they would lead to anomalous situation and absurd result. A provision of law should be fully read, it should be properly understood and only then, it should be interpreted. In the matter of Rasikchandra Devshanker Acharya (supra), the question before the Court was that whether provisions of Gujarat Local Authorities [Temporary Postponement of Election) Act, 1994 were within the competence of the government or were ultra vires the provisions of the Constitution. The Division Bench observed that result of the statute Page 1774 would be that elections to local authorities would not be held within the time prescribed by Articles 243-E and 243-U, therefore, Section 3 of Act No.12 of 1994 would be inconsistent with the provisions of the Constitution and resultantly would be ultra vires. While considering the question relating to the power of the government, the Division Bench referred to the Statement and Objects and some part of the speech of the Minister. The Division Bench, in context, held that being the largest democracy in the world, it was paradoxical that there was no Constitutional sanction or protection to the democratic institution at the grass-root level represented by the Panchayats, Municipalities and Municipal Corporations. The Division Bench observed that under these circumstances, the intention of the 73rd and 74th Amendment Bill was to provide a protection so that elections are held in time. The Division Bench was also of the opinion that that in case like present, everything should not be left to the sweet will of the government and elections were required to be held in accordance with the mandate and drafted in the Constitution.

21. It is trite to say that observations made in a given judgment cannot be read de hors the context. It is also settled that the observations made in any judgment are not to be read like law. The Judges make certain observations looking to the context and then, they interprete law so that action is approved or disapproved. If every observation made in a judgment is read as law, then, it would lead to absurd results.

22. In the matter of State of Gujarat and Ors. v. Akhil Gujarat Pravasi Vahan Sanchalak Mahamandal and Ors. , the Supreme Court, while considering the provisions of the Bombay Motor Vehicles Tax Act, 1958 observed that it is trite that any observations made during the course of reasonings in a judgment should not be read de hors the context in which it was used. The last word of the Supreme Court on the subject is to be found in the judgment of K.P. Sudhakaran and Anr. v. State of Kerala and Ors. reported in [2006] 5 SCC 386. In the said matter, the question argued before the Supreme Court was that if the seniority is to be maintained at the State level, then, a person, if is transferred at his own request, despite the rule that he would lose his seniority, would not lose his seniority. It was submitted that intention of the government or the employer, if was to maintain state level seniority and if the seniority list had nothing to do with the transfer at one's own request, then, rule would not cut the rights of the person who sought voluntary transfer. The Supreme Court, repelling the contention observed that, the alleged intention behind a provision, cannot be used to defeat express words of the provision. Once a statutory rule is made, without providing any exceptions, it is not possible to carve out exceptions to such rule, by judicial interpretation. Nor can an exception from application of a clear and specific rule be claimed on the ground of hardship or similar reasons. From the above-referred judgment of the Supreme Court, it is clear that intention behind the legislation may only be a persuasive factor for the government to enact a law, but if the law is plain and simple, then, the intention of the legislature cannot be used to give a different look and colour to the simple provision.

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23. In the matter of Ramesh Mehta v. Sanwal Chand Singhvi and Ors. , while considering the question regarding the right to elect and the right to be elected, the Apex Court observed that it is a statutory right. The Court, while observing that the right to elect and right to be elected is a statutory right, also observed that the mode and manner of election too any post could be different from the scheme of removal of a person from that post. The Court observed that in each case, statute in question has to be examined. Hon'ble Mr. Justice S.B. Sinha, in his concurring judgment observed that a subordinate or delegated legislation must also be read in a meaningful manner so as to give effect to the provision of the statute. In selecting true meaning of a word, regard must be had to the consequences leading thereto. If two constructions are possible to adopt, the meaning which would make the proceedings workable and in consonance with the statutory scheme should be preferred.

24. By now, it is well settled that the Courts lean in favour of upholding validity of a statute or provision of law unless conciliation or re-conciliation is not possible or statute/provisions of law are staring in the eyes of the Constitution or are in the teeth of the constitutional mandate. It is also well settled by now that the Courts do not legislate, but simply interprete law in accordance with the intention and mandate of the Constitution. If the Courts find that action is offending the intention or mandate of the Constitution or the rules are running contrary to the main statute, the Courts would strike upon the illegality and hold it ultra vires the Constitution or the Act. In a given case, it would not be for the Court to find causa omissus if there is none and create a situation whereunder, the Act would become ultra vires the Constitution. In a given situation, the Court may interpret the law in a manner which subserves the justice and leads to positive results. It is also settled that the Courts may read down the law in a manner so that absurdity is ruled out and true colour of the law precipitates.

25. Section 37 of the Gujarat Municipalities Act, 1963 ("the Municipalities Act" for short) reads as under:

37. Removal from office.- (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 Councillors 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 Page 1776 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.

The consequence of removal of the President or Vice President of a Municipality are given under Section 37(2) clearly indicating that 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.

The general consequence of removal would be found in Section 11 of the Municipalities Act. Section 11(1)(a)(ii), which would be necessary for our consideration, reads as under:

11(1). No person may be a councillor -

(a) Who--

(i) xxx xxx xxx xxx xxx xxx

(ii) has been removed from office under Section 37 and four years have not elapsed from the date of such removal, unless he has, by an order which the State Government is hereby empowered to make, if it shall think fit, in this behalf, been relieved from the disqualification arising on account of such removal from office; or xxx xxx xxx xxx xxx xxx xxx

26. From a perusal of Section 11(1)(a)(ii), it is clear that any person who has been a Councillor or President or Vice President, would not be a Councillor, if he has been removed from his office under Section 37 and four years have not elapsed from the date of such removal. The power to reduce the period of four years is conferred upon the Government and the Government, for the satisfactory reasons, may relieve such a disqualified person from the disqualification incurred by him on account of such removal.

27. It is vehemently submitted that Section 37, which talks of removal of a Councillor, President or Vice President, would be in the teeth of constitutional provisions, as contained in Part-IXA of the Constitution of India because the power to remove a Councillor, President or Vice President is not conferred upon any Government under the constitutional provisions and if such power is not available to the Government to make such a law relating to removal, then, the very foundation of removal would be bad. It is submitted that a juxtapose reading of the provisions contained in Part-IX(A) of the Constitution of India, would make it clear that the Constitution wanted to protect the local self Government i.e. the Municipality from the clutches and the sinister designs of the Government, therefore, the power of removal was not given. To appreciate the argument properly, we will have to look into the provisions contained in Part-IXA of the Constitution of India.

28. Article 243(P) defines particular terms; Article 243(Q) relates to the constitution of municipalities. While Article 243(R) relates to composition of municipalities; Article 243(S) is in relation to constitution and composition Page 1777 and wards committees, etc.; Article 243(T) relates to reservation of seats; Article 243(U) provides duration of the municipalities and the term which the elected body shall enjoy and further provides that a municipality constituted upon the dissolution of the municipality before the expiration of its duration shall continue only for the remainder of the period; Article 243(V) provides disqualifications for membership, it reads as under:

243V. Disqualifications for membership. -

(1) A person shall be disqualified for being chosen as, and for being a member of a Municipality -

(a) if he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State concerned:

Provided that no person shall be qualified on the ground that he is less than twenty-five years of age, if he has attained the age, of twenty-one years;

(b) if he is so disqualified by or under any law made by the Legislature of the State.

(2) If any question arises as to whether a member of a Municipality has become subject to any of the disqualifications mentioned in Clause (1), the question shall be referred for the decision of such authority and in such manner as the Legislature of a State may, by law, provide.

From Article 243(V), it would clearly appear that a person shall be disqualified for being chosen as, and for being a member of a Municipality, if he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State. So far as Article 243(V(1)(a) is concerned, a person would not be entitled to be elected as a Member of the Municipality if he is disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State concerned, but, Clause-(b) further provides that a person would not be entitled to be a Member if he is so disqualified by or under any law made by the Legislature of the State.

29. It is not in dispute before us that Section 37, read with Section 11 provides, disqualification by or under the law made by the Legislature of the State.

30. Article 243(W) talks about powers, authority and responsibilities of the Municipalities; Article 243(X) relates to imposition of taxes; Article 243(Y) talks of the Finance Commission, while Article 243(Z) relates to audit of accounts of the Municipalities; Article 243(ZA) provides that the superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Municipalities, shall be vested in the State Election Commission referred to in Article 243K. Sub-Article-(2) of Article 243(ZA) provides that subject to the provisions of the Constitution, the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the Municipalities. A fair understanding of Article 243(ZA)(2) would show that the Legislature of a State may, by law, make provision with respect to all matters relating to, or Page 1778 in connection with, elections to the Municipalities. The disqualification for a voter, disqualification for a candidate and such other types of disqualifications, which put a ban on the right of a person to contest elections, would be a matter relating to and in connection with the election of the Municipalities. Article 243(ZA)(2) is subject to the provisions of the Constitution. If the law enacted by the State Government is not inconsistent with the provisions of the Constitution, then, such law would govern the field, but, if the law runs contrary to the mandate and intention of the Constitution, then, the law will have to walk out and make room for the provisions of the Constitution.

31. Article 243(ZB) provides that the provisions of this Part of the Constitution shall apply to the Union territories, while Article 243(ZC) provides that Part-IXA of the Constitution shall not be applicable to particular areas. Article 243(ZD) talks about committee for district planning, while Article 243(ZE) relates to committee for metropolitan planning. Article 243(ZF) talks about continuance of existing laws in Municipalities, providing that notwithstanding anything in Part-IXA, any provision of any law relating to Municipalities in force in a State immediately before the commencement of the Constitution (Seventy-forth Amendment) Act, 1992, which is inconsistent with the provisions of Part-IXA, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is earlier.

Article 243(ZG) provides for an embargo on the part of the powers of the Courts in certain electoral matters.

32. The basic question before us is that whether Section 37 is within the competence of the State and whether the Constitution permits the State Government to make such law. We have already referred to Article 243(V), which provides that a person shall be disqualified for being chosen as, and for being a member of the Municipality, if he is so disqualified by or under any law made by the Legislature of the State. The State Government has been given power and authority to make provisions with respect to all matters relating to, or in connection with, elections of the Municipalities subject to the provisions of the Constitution.

33. From a juxtapose reading of Article 243(V) and Article 243(ZA), it would clearly appear that if the law made by the Municipality is not inconsistent with the provisions of the Constitution, then, by such law, the State Government can make provisions with respect to all matters relating to, or in connection with, elections to the Municipalities, which would mean that it would be entitled to provide the disqualification clause.

34. The submission of Mr. Oza is that Part-IXA does not provide for removal of a Corporator / Councillor/ Panchayat Member, therefore, it must be held that any law relating to such removal is contrary to the provisions of the Constitution.

35. Mr. Trivedi, learned Advocate General for the State, on the other hand, submitted that on a simple submission that the law is inconsistent with the provisions of the Constitution, the law cannot be held to be ultra vires Page 1779 the Constitution. According to him, some material should be brought on record to show that how the law made by the State Government is inconsistent with the provisions of the Constitution. He submits that the basic control of a Municipality is always in the hands of the Government.

36. The Gujarat Municipalities Act, 1963 is enacted for the purposes of consolidating and amending the law relating to Municipalities in the State of Gujarat. It provides that how the Municipality would be constituted, who would constitute the Municipality, how elections would be conducted, what would be the qualifications and disqualifications for being elected as a Member, who can be a voter and many other things.

37. In the matter of Anjar Municipality and Ors. v. J.M. Vyas , the dissolution of the Municipality with the aid of Section 263 of the Gujarat Municipalities Act, was under challenge with a submission that Article 263 since after Seventy-forth Amendment of the Constitution, was ultra vires the Constitution. In the said matter, it was submitted before the Court that the Constitution does not provide for dissolution of the Municipality before it could complete its term of five years, therefore, the action of dissolution before completion of five years would be bad and Section 263 of the Municipalities Act, which provides for such dissolution would also be bad. The Division Bench repelling the arguments made a pertinent observation that the primary object of amendments in the Constitution is to ensure elections to local bodies as and when due and to avoid supersession of local self-Government and the provisions also emphasis timely elections in case of dissolution of such bodies.

The Court further observed that looking to the phraseology used in Article 243(U), it is clear that the said provision saves the power of competent Legislature of dissolution of a Municipality in accordance with law. The Court observed that the words "unless sooner dissolved under any law for the time-being in force" would be the key words to provide that the Municipality could be dissolved before it completes the period of five years. The Court observed that a bald assertion by the Counsel that there should be no dissolution of Municipality notwithstanding misfeasance, non-feasance, breach of duties imposed by a statute or failure to perform statutory obligations cannot be countenanced by a Court of law in any legal system governed by Rule of Law. The Court, on the findings recorded by it, held that Section 263 was not ultra vires the Constitution. The Court also observed that the said Article (Article 243U) does not in any way put any embargo or, prohibits a competent Legislature to make provision for dissolution of a Municipality provided that before such action is taken, a Municipality is given reasonable opportunity of being heard; whether or not an action of dissolution in a given case is in accordance with law and whether or not a reasonable opportunity of being heard was afforded to the Municipality must be decided in the light of the facts and circumstances of a particular case. The Court concluded that there is no absence of power on the part of the Legislature in enacting the provision regarding dissolution of the Municipality.

Page 1780

38. In relation to Section 14 of U.P. Panchayat Raj Act (26 of 1947), a question was raised before the Apex Court that Section 14 of the said Act, which empowers the Members of the Gram Panchayat to remove the Pradhan of a Gram Sabha by moving a motion of no-confidence was unconstitutional and was void being violative of the concept of democracy. In the matter of Ram Beti v. District Panchayat Rajadhikari , the Supreme Court observed as under:

7. The learned Counsel for the petitioners have also invited our attention to Section 11 of the Act wherein provision is made regarding meetings and functions of Gram Sabha and it is prescribed that every Gram Sabha shall hold two general meetings in each year - one, known as kharif meeting, to be held after harvesting of the kharif crop and other, known as rabi meeting, to be held after harvesting of the rabi crop. The learned Counsel have pointed out that under the first proviso to Section 11(1) a meeting of the Gram Sabha can also be requisitioned by not less than one-fifth of the number of the members. It has been urged that there is no difficulty in moving a motion of no-confidence in any of the two general meetings of the Gram Sabha which are required to be held in each year or by requisitioning an extraordinary general meeting of the Gram Sabha for that purpose. It is no doubt true that under Section 11(1) of the Act provision is made for holding of two general meetings of the Gram Sabha in each year as well as for requisitioning of a meeting by one-fifth of the members. But the Legislature, in its wisdom, thought it proper that the matter of removal of a Pradhan, instead of being considered at the meeting of the Gram Sabha, should be considered by the members of the Gram Panchayat. The considerations which weighed with this Court for upholding the validity of Sub-section (2) of Section 87-A of the U. P. Municipalities Act, 1916 relating to the removal of the President of a Municipal Board in Mohanlal Tripathi AIR 1993 SC 2042 (supra) are, in our opinion, also applicable to the removal of the Pradhan of a Gram Sabha. Although under Section 14 of the Act the power of removal of a Pradhan is conferred on the members of the Gram Panchayat, which is a smaller body than the Gram Sabha, but the members of the Gram Panchayat, having been elected the members of the Gram Sabha, represent the same electorate which has elected the Pradhan. The removal of a Pradhan by two-thirds members of the Gram Panchayat who are also elected representatives of the members of the Gram Sabha is, in fact, removal by the members of the Gram Sabha through their representatives. Just as the Municipal Board is visualised as a body entrusted, with the responsibility to keep a watch on the President, whether elected by it or by the electorate, so also the Gram Panchayat is visualised as a body entrusted with the responsibility to keep a Page 1781 watch on the Pradhan who is not elected by it and is elected by the members of the Gram Sabha. An arbitrary functioning of a Pradhan in disregard to the statute or his acting contrary to the interests of the electorate could be known to the members of the Gram Panchayat only and, in the circumstances, it is but proper that the members of the Gram Panchayat are empowered to take action for removal of the Pradhan, if necessary. It is no doubt true that in Section 11 of the Act provision is made for holding two general meetings of the Gram Sabha in each year and for requisitioning of a meeting of the Gram Sabha by one-fifth of its members. But, at the same time, we cannot lose sight of the fact that the number of members of the Gram Sabha is also fairly large. It would range from one thousand to more than three thousand. Elections to public offices even at village level give rise to sharp polarisation of the electorate on caste or communal basis. The possibility of disturbance of law and order in a meeting of the Gram Sabha called for considering a motion for removal of the Pradhan cannot be excluded. Moreover, there cannot also be due deliberation of a serious matter as no confidence motion by a very large body of persons. While amending Section 14 of the Act so as to confer the power to remove the Pradhan of a Gram Sabha on the members of the Gram Panchayat the legislature must have taken into consideration the prevailing social environment. Moreover, by way of safeguard against any arbitrary exercise of the power of removal it is necessary that the motion must be passed by a majority of two-thirds of the members present and voting.

8. For the reasons aforementioned we are unable to hold that Section 14 of the Act, in so far as it empowers the members of the Gram Panchayat to remove the Pradhan of a Gram Sabha by moving a motion of no-confidence, is unconstitutional and void being violative of the concept of democracy or is arbitrary and unreasonable so as to be hit by Article 14 of the Constitution.

39 The Supreme Court also referred to the following observations made by it in the matter of Mohanlal Tripathi v. District Magistrate, Rai Bareilly . The Apex Court observed that an arbitrary functioning of a Pradhan in disregard to the statute or his acting contrary to the interest of the electorate could be known to the Members of the Gram Panchayat only and in the circumstances, it is too proper that the Members of the Gram Panchayat are empowered to take action for removal of the Pradhan, if necessary. Removal of the Pradhan is also not a contingency provided in Part-IXA of the Constitution.

40. The framers of the Constitution and the Parliament, when amended law, never thought that the representative of the people at the grassroot level would enter into malpractice and commit misconduct. The framers of the Constitution always thought and hoped piously that the public would repose Page 1782 confidence in those who would represent the interest of the public and not of a section or of few. The Constitution is a living organ. When it came into existence, it was never thought that it would be required to be amended from time to time, but, change in the time and change in the approach persuaded the Parliament to make amendment in the Constitution. The Government wanted to confer powers upon the persons at the grassroot level, but, the Constitution never thought that the power would be going to some of the persons, who are corrupt and who did not care about oath, which every citizen of the country takes in the form of the Preamble of the Constitution. If the acts, which are bad, illegal and contrary to law, cannot be checked by the State Government, only on the ground that such power is not conferred by the Constitution of India, we will be leading to anarchy. The Constitution of India is the source of power and it every time provides that if nothing is inconsistent to the provisions contained in the Constitution of India and does not strike on the basic structure of the Constitution, then, such a law can always be made by the State Legislature. If the Constitution does not provide for removal of a Pradhan or a chair person from his Office even on commission of his misconduct and the State Legislature cannot do anything in absence of such powers in the Constitution, then, the elected person or the head of the institution would cause havocs, he would create an impossible situation. Therefore, somebody will have to put a check on his powers and the Court will have to hold that if the action of the State in enacting a law is not bad or motivated and is not inconsistent with the provisions of the Constitution, then, such an action on the part of the State will be held to be intra vires the Constitution.

41. In the matter of Ram Beti (supra), the Supreme Court held that Section 14 of the U.P. Panchayat Raj Act was not ultra vires the Constitution.

The observations of the Supreme Court in the matter of Ram Beti (supra) would clearly mean that if the Constitution does not provide any restrictions on enacting of a particular law and the enacted law is not inconsistent with the provisions of the Constitution, then, the law cannot be held to be ultra vires the Constitution.

42. Mr.Oza, placing reliance upon a Division Bench's judgement of this Court in the matter of B.K. Shukla v. Natverlal Ratanji Kevat and Ors. 1990(2) G.L.R. 1211, submitted that if the whole body has passed a resolution, then, the liability cannot be fixed upon the head of the Chairman. According to him, every Councillor/Corporator acts on his own and, therefore, there is no joint or collective liability.

In the said matter, the petitioner was dismissed from service under Section 48 of the Municipalities Act, the action was challenged by the petitioner on the ground that the President was nursing an ill will against him. The Division Bench observed that removal of the petitioner was not the result Page 1783 of an individual act wherein bias or mala fides could be attributed for the decision rendered by such an individual. The Court observed that the statutory provisions clearly make out that the council as such with its two-third majority should pass the resolution for the purpose of removing the Chief Officer. That judgement is not an authority for a decision on the question of the validity of the provisions.

43. Mr. Oza repeatedly submitted that Section 37 of the Municipalities Act is ultra vires Article 243(V) and Article 243(ZA) of the Constitution because if the Constitution does not provide for removal of a Member of the Municipality, then, such powers cannot be conferred upon the State by making a legislation in its own favour.

44. Barring the submissions that the provisions are ultra vires the Constitution, nothing has been brought to our notice. In our considered opinion, the powers contained in Section 37 of the Municipalities Act cannot be held to be ultra vires the Constitution. Mr. Trivedi is absolutely justified in submitting that if such power is not reserved in favour of the State Government, then, it would be impossible for the State Government, who is exercising the powers of general superintendence over the Municipalities, to control the elected body. In our considered opinion, Section 37 does not cross the limits permitted under the Constitution, nor the provisions run contrary to the provisions of the Constitution. The Law provides that an opportunity of being heard is to be given and the State Government must record its opinion that such councillor has been guilty of misconduct in discharge of his duties or of any disgraceful conduct or has become incapable of performing his duties under the Act.

45. In the matter of Baldev Singh Gandhi v. State of Punjab and Ors. , the Apex Court was required to consider the question regarding removal of Members on the ground of misconduct. In the said matter, the elected Municipal Councillor publicly criticised the house tax assessment list as illegal and arbitrary. The Supreme Court observed that such criticism could not constitute misconduct. Section-16 of the Punjab Municipal Act, 1911 provided for power of the State Government as to removal of members. It provided that if, in the opinion of the State Government, the Member has flagrantly abused his position as a Member of the Committee or has through negligence or misconduct been responsible for the loss, or misapplication of any money or property of the committee. The Supreme Court observed as under:

9. 'Misconduct' has not been defined in the Act. The word 'misconduct' is antithesis of the word 'conduct.' Thus, ordinarily the expression 'misconduct' means wrong or improper conduct, unlawful behaviour, misfeasance, wrong conduct, misdemeanour etc. There being different meaning of the expression 'misconduct', we, therefore, have to construe the expression 'misconduct' with reference to the subject Page 1784 and the context wherein the said expression occurs, regard being had to the aims and objects of the statute. The appellant herein is an elected Municipal Councillor to a democratic institution i.e. local body. The aim and object of the Act is to make better provisions for administration of Municipalities. The Municipality is a democratic institution of self-governance consisting of local people, for the local people and by the local people. The prime object of the local body is to serve the local people and to provide amenities and service to the people residing within the Municipality. As a representative of the public it is the duty of an elected representative to see that the public of his constituency are not burdened with excessive and arbitrary levy. No doubt, a Municipal Commissioner holds a statutory office in a Municipal Council, but no statutory code of conduct in respect of Municipal Councillors has been enacted. However, it is a different question whether such a law could be framed as to restrict the freedom of speech and expression of a Municipal Councillor. However, it must be borne in mind that the appellant was not an employee or a servant of the Municipal Council and also never held any office of profit in the Municipal Council. Every citizen, inasmuch as a Municipal Councillor, has a freedom of speech and expression under Article 19(1)(a) of the Constitution which includes fair criticism of the law or any executive action. Freedom of speech and expression is guaranteed in our democratic republic both in legislature as well as in local bodies and, therefore, a legislator or a Municipal Councillor legitimately can express his views in regard to what he thinks to be in public interest. A legitimate exercise of right of speech and expression including a fair criticism is not to be throttled.

The Supreme Court further observed that a citizen or a Municipal Councillor must obey the law because observance of rule of law by all concerned is one of the basic requirements of working of a democracy. The Court further observed that situations may arise where responsible persons or those who hold elected offices, may feel that it is their duty to criticise the law either promulgated by the State or by the Municipal Council as illegal, arbitrary and ultra vires and against the public interest and invite the people to come for discussion on the subject. The Court also observed that the power to remove is legal, but, the power must be exercised in accordance with law.

46. In the matter of Baldev Singh Gandhi (supra), it was held that a fair criticism of the action of the Municipality was not a misconduct, firstly because it was governed by the right of speech, and secondly, because there was no finding as to what financial loss was incurred by the Municipality.

47. Taking a clue from the judgement in the matter of Baldev Singh Gandhi (supra), we must hold that power to remove a Member, Councillor, Page 1785 Corporator or a Member of Panchayat, does not run contrary to the provisions of the Constitution, but, the power must be exercised in accordance with law and after giving due and appropriate opportunity to the person concerned. Section 37 clearly provides that a Councillor can be removed from the Office after giving due opportunity of hearing and after recording the opinion that the Councillor has been guilty of misconduct in the discharge of his duties or of any disgraceful conduct or so. We have already observed that in the matter of Baldev Singh Gandhi (supra), the Supreme Court has observed that the word "misconduct" has not been defined in the Panchayat Act, so is the position in the present Municipalities Act, the word "misconduct" has not been defined in the Municipalities Act. We shall, therefore, go with the observations made by the Supreme Court in the matter of Baldev Singh Gandhi (supra) and should also observe that the word "misconduct" is antithesis of the word "conduct". It would mean wrong or improper conduct, unlawful behaviour, misfeasance, wrong conduct, misdemeanour, etc.

48. In the present matter, the Members of the Committee, despite submission of the report by the Chief Officer that the resolution proposed to be passed would be contrary to law and creation of twenty two permanent posts would be illegal and bad because of the financial crunch suffered by the Municipality, being hand in glove to help and assist the relations of the Members of the elected body, to show utter nepotism and favouritism, passed the resolution on 30th July, 1993.

49. When the Chief Municipal Officer or the Chief Officer of the Municipality brings certain facts to the notice of the elected body, then, such reports and the information cannot be thrown in the dust bin by the elected body. The elected body is required to look after the interest of the Municipality. They are Corporators and not conspirators, they are trustees, they should be trustworthy, they cannot commit breach of the trust. When the elected body starts acting in its own favour or in favour of those only, who are related to them, then, it acts dishonestly. A dishonest action cannot be termed as good conduct, it obviously would be a misconduct. The Members of the Executive Committee appointed those in whom they themselves were interested. From the first order passed by the Collector, it would clearly appear that not only the relations were appointed, but, even without approval of the resolution by the General Body, the resolution was put into communication, it was executed and on some persons paying money to the President and others, the appointment orders were issued in the midnight. The games, which have been played in the darks of the midnight, if see the light of the day and none can justify the acts, then, such acts would be the act of treachery and dishonesty.

50. The learned Counsel for the petitioners, referring to the judgement in the matter of B.K. Shukla (supra), submitted that as each Member was to take his own decision and has to exercise the right of franchisee in favour of or against the resolution, his personal right to speech and casting of vote in favour of the resolution, would not amount to misconduct.

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51. In the matter of B.K. Shukla (supra), the observations were made by the Court in the context of the facts that allegations were made against the President that he was a kingpin in the removal of the petitioner. The High Court, in the said matter, observed that if it was a collective decision and the resolution was passed unanimously with two-third majority, then, the President alone could not be blamed. Present is not a case of that type. Present is a case where a conspiracy was hatched before the resolution to provide employment to the relations of the councillors and amass money and with this ulterior motive, a meeting was conducted and contrary to the submissions of the Chief Officer that such resolution cannot be passed, the resolution came to be passed. If the argument of Mr. Oza is accepted that every Councillor is entitled to vote as he likes and no action can be taken because his right is absolute, then, the majority would become dictator and would not look into any good or logic. The democracy does not mean the thumb rule. Democracy means that the representative of people should represent the will of the electors. It is expected of the public representative that he would act honestly, he would work for the public and his every act would be in the public interest. It is altogether a different thing that of late, the moral, conduct and good sense have changed their meaning, but, for the Court of law, the meaning earlier assigned and generally accepted would be the meaning irrespective of the change in the scenario. Earlier, we used to cast the vote, these days, we are voting for the caste. If favours are sought from the public representatives and only few are favoured because they happen to be the relations of the people's representative, then, such an act on the part of the people's representative would be a misconduct. Present is not a case where each Member, after discussion, recorded the opinion that twenty two posts should be created. Present is a case where everybody knew that the financial position of the Municipality was bad, it was unable to meet its liabilities, it was unable to pay the regular salary to its permanent staff. Despite all odds, these twenty two posts were created, these twenty two persons were appointed and while doing so, the persons, who were senior to these twenty two persons, were kept apart and were at all not considered. If this was the total conduct of the Members in the meeting, which was to pass the resolution, then, the democracy is going to the dogs. Democracy does not mean an authority to defraud others. The people's representative cannot betray the confidence of the elector for his personal gains. The elected Member cannot be allowed to harm the institution, nor can he be allowed to deceive the people. When a Corporator becomes a conspirator and the nails start eating the finger, the survival of the institution would become impossible.

52. We are unable to hold that the conduct of all those persons was bonafide and, therefore, no action could be taken against them.

53. We shall be failing in our duty if we do not refer to some other arguments of Mr. Oza. His key argument was relating to Article 105 and Article 194 of the Constitution of India. Sub-article (2) of Article 105 and Sub-article (2) of Article 194 provide that no member of Parliament/Legislature of a State shall be liable to any proceedings in any court in respect of anything said Page 1787 or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings. The submission, in fact, is that if this is the third tier of the Government and having been given the status equal to the status of Members of Parliament and Members of Legislative Assembly, then, they should be deemed to be protected under Article 105 or Article 194 of the Constitution.

54. At this stage, we must readily accept the argument of Mr. Trivedi when he says that the petitioners are trying to blow hot and cold. At the same time, it is to be noted that on one side, the petitioners had been submitting that in absence of the power flowing from Part-IXA for removal of a Member, the State cannot remove the Member, it is also being argued that in absence of any powers like Article 105 or Article 194, in Part-IXA of the Constitution, protection should be provided. Article 105(2) and Article 194(2) are positively worded, they provide a complete protection to the Member of Parliament/Legislative Assembly in relation to an action taken by them on the floor of the House when it provides that such Member of Parliament shall not be liable to any proceedings in any Court. The law does not say that no action can be taken against such Member in any other competent forum. Certain actions, deeds, misdeeds or misconducts taken or played on the august floor of any House may not be subject to any proceedings in any Court, but, can be subjected to some other competent forum. The protection, as provided under Article 105/194, is not available under Part-IXA of the Constitution of India and, therefore, any Member of the Municipality, who is the Councillor, can be held answerable in a Court of law and before a competent forum, as provided under the Act. In the present matter, the first action has not been taken in the Court of law. In fact, the action is being taken by the State Government under Section 37 of the Municipalities Act. It cannot be gainsaid that the State Authority and the Courts are two different forums. Before the Court of law, the complaint is against the action of the State, it is not the complaint that the State Government also could not take action because of absence of power. Assuming for a minute that Article 105(2) or Article 194(2) can be read in favour of the petitioners, then too, it cannot be argued that the action by the State Government is illegal. The Member of Parliament/Legislative Assembly are not answerable to the proceedings in any Court of law, but, the protection is not to the extent that no action can be taken against them.

55. It is submitted that to vote is an absolute and unfettered right. Ordinarily, we would have accepted the submission if the facts were so, but, in the present case, the facts floating on the surface of the records would show that the action was motivated and each hand was scratching other's back because each was to get some favour from the other.

56. Mr. Oza, placing his reliance upon a Division Bench's judgement of this Court in the matter of Chimanbhai R.Patel v. Anand Municipality and Ors., submitted that if the conduct of the President, in his capacity as the Page 1788 President, is bad, then, he could not be removed from the Office of the Municipal Councillor.

In our considered opinion, the said judgement would not be applicable to the present case because every petitioner has been removed from the Office of the Municipal Councillor.

57. Mr. Oza also placed his reliance on yet another Division Bench's judgement of this Court in the matter of Akbarali Kasamali Ravjani v. N.G. Pandya, District Development Officer 1973 G.L.R. 287, to contend that an ordinary member has nothing to do with the implementation of the orders, therefore, action cannot be taken against such an ordinary member.

Unfortunately, the observations made in the said judgement are being read out of context. In the said matter, the question before the Court was that the disobedience on the part of the petitioner in regard to the orders fell within the realm of his executive power, which he had as the Chairman of the Nagar Panchayat. The Court observed that an ordinary member of a Panchayat has hardly anything to do with the implementation of the stay order granted by the District Panchayat. He has hardly anything to do also with the order of reinstatement passed by a superior officer in respect of any servant of the panchayat. As a member, he merely functions when a meeting of the panchayat is convened.

58. In the present matter, the conduct of the petitioners qua disobedience of some superior's orders is not in question. In the present matter, the conduct of the petitioner as a member of the meeting is under consideration. In the present matter, the allegations against the petitioners are that they and others purposefully passed a resolution, which could not have been passed. At this stage, we must also note that the first order of the Collector was set aside by the High Court on the ground of violation of principles of natural justice. We have not placed our reliance on the order of the Collector, which was set aside by this Court, but, we have noted the facts from the said order of the Collector to complete these records.

59. It was submitted by Mr. Oza that if the Parliament cannot make law for removal of the Member of Parliament/Member of Legislative Assembly, then, the State Government also would not be entitled to make any law for the removal of the Councillor, etc. In our considered opinion, the argument is based on a wrong foundation. The Parliament cannot make any law for removal of the Member of Parliament/Member of Legislative Assembly, but, if the Constitution itself provides that the State Government can make law relating to disqualification, then, such law can always be made. In the matter of Baldev Singh Gandhi (supra), the Supreme Court has observed that the State would be competent in making a law relating to removal. So far as the argument of Mr. Oza that the party in power, which is forming the Government, can use this power as sword against the majority is concerned, we must reject the same because if such an action is taken by the party in power, then, the action itself can be challenged before the competent forum including the Court of law. On an apprehension that this Page 1789 may so happen, the law cannot be held to be ultra vires the Constitution. Removal of a Member, who commits misconduct, would be an inbuilt safeguard as it avoids short-circuiting of the system. If such power is not reserved in favour of the State Government, then, all anti-social elements, including the hooligans, would rule and would not allow any right work to go on, corrupt would amass money and favoured few or the blue eyed babies would only be nursed in the corridors of those third tier bodies. Obviously, we must also say that the democracy is for the public and not against the public. The institutions are given constitutional status, but, the said constitutional status, as given to the Member of Parliament and the Member of Legislative Assembly, has not been conferred upon the Councillors, Corporators or Members of Panchayat.

60. Section 11 of the Municipalities Act provides the disqualification for contesting elections; these disqualifications are pre-election disqualifications. Section 37 provides removal on the ground of misconduct. If the power is not conferred upon the State Government to remove the guilty, then, such guilty would continue and in a given case, even after his removal under Section 37, he may come back to the Municipal Council or Municipal Corporation to encash his nuisance value. The removal if is on the ground of misconduct, that is, a conduct, which is not palatable to a civilised society, which is contrary to law, or which is a conduct of a termite eating its own house, then, such a person should always be kept away from the said institution. If he re-enters, then, no useful purpose would be served by throwing him out. It was then submitted that assuming Section 37 is not ultra vires the Constitution, then too, the power cannot be exercised by the Director. We are unable to concede to this argument. The State Government has to act through somebody and if it confers powers upon one of its Senior Officers, then, it cannot be said that the powers are contrary to law.

61. It was next contended that if it is an order by the State Government, then, it should be authenticated in the name of the Governer. In our opinion, this argument of frustration should not detain us unnecessarily because a statutory power is being exercised by the State Government through its Officer.

62. Taking the case from any angle, we are of the opinion that Section 37 cannot be held ultra vires the Constitution, nor the order passed by the Director can be held to be bad on the facts and in the circumstances of the case.

63. From the order dated 5th April, 1994 made by the Director of Municipalities, it would clearly appear that proper opportunity of hearing was afforded to the Councillors, he held that the action of the Councillors was bad. From the facts, it would appear that all the candidates, who had applied, were not called for interview, the executive body mentioned that the resolution would be got confirmed in the General Meeting; despite that, the appointees were assumed to have taken charge; the financial position of the Municipality was not sound; its employees could not get their salaries regularly; the totality of the circumstances was considered by the Director Page 1790 and he recorded his opinion against the interest of the Councillors. It is to be noted that all such persons were allowed to join and thereafter the municipality was dragged to the Court. In fact, the orders of the Collector and Director show that the municipality had suffered unnecessary losses.

64. In the matter of Apparel Export Promotion Council v. A.K. Chopra , the Supreme Court has observed that judicial review is not concerned with the correctness of the decision, but, is confined to the examination of the decision making process, namely, that the established principles of law and rules of natural justice and fairness have been followed or not. In the present case, it is not the complaint of the petitioners that the provisions of law, as contained in Section 37, were not observed or the principles of natural justice were not followed or they were not given proper opportunity of hearing. In a given case, what order would be appropriate will have to be decided by the first authority and unless the decision is shocking or it is such which no prudent man can take, the Courts would not interfere in the matter.

65. After having given our due consideration to all the arguments raised by both the sides, we are unable to hold in favour of the petitioners that either the provisions contained in Section 37 of the Municipalities Act are ultra vires the Constitution or the order dated 5th April, 1994, on law or on facts, is bad.

66. During the course of the arguments, Mr. Trivedi submitted that the effect of the order dated 5th April, 1994 was kept in abeyance by an Order dated 3rd May, 1994 and thereafter the stay order continued until further orders under Order dated 27th June, 1994; in case the petition is dismissed, the period of four years should be counted from the date of dismissal of the petition i.e., the period of four years of disqualification for the purposes of Section 11 should be counted from the date of dismissal of the petition.

67. Mr. Oza, learned Senior Counsel, submitted that once the period of four years has elapsed during the pendency of these Writ Applications, though the order was kept in abeyance, the said period of four years cannot be counted from the date of the dismissal of these Writ Applications. His submission is that if the law does not say that the period of stay or injunction is not to be counted out, then, the period should be allowed to run though the effect is kept in abeyance. He has placed his reliance upon a judgement of the Supreme Court in the matter of V.T.S. Thyagasundaradoss Thevar and Ors. v. V.T.S. Sevuga Pandia Thevar and Anr. . In the said matter, the question of interpretation of a will was under consideration. That matter has nothing to do with the stay/injunction granted by a Court.

68. On the other hand, Mr. Trivedi, learned Advocate General for the State, has placed his reliance upon four judgements of the Supreme Court, namely, Page 1791 (i) Shree Chamundi Mopeds Ltd. v. Church of South India Association CSI Cinod Secretariat, Madras ; (ii) Mahanadi Coalfields Ltd. v. Orient Paper & Industries Ltd. and Ors. 1995 Supp. (2) SCC 717; (iii) State of M.P. and Ors. v. M.V. Vyavsaya & Co. ; (iv) Kanoria Chemicals and Industries Ltd. and Ors. v. U.P. State Electricity Board and Ors. .

69. In the matter of Mahanadi Coalfields (supra), the Supreme Court ordered that while the purpose of an interlocutory order is to preserve in status quo the rights of the parties during the pendency of the litigation, the Court is also required to consider into the scales the need to protect the interest of the respondent before it if the writ petitions ultimately fail and uncertainty as to their results is resolved in such respondent's favour.

70. In the matter of State of M.P. and Ors. v. M.V. Vyavsaya & Co.(supra), the Supreme Court observed that no one should be allowed to suffer for act of the Court. In the said matter, an undertaking was given by the contractor before the High Court and observing the undertaking, the High Court issued interim orders in favour of the contractor. The Supreme Court observed that the interim orders are subject to final orders and as such, the Court can, at the final stage, correct or repair the damage caused by its interim order.

71. In the matter of Kanoria Chemicals (supra), the Supreme Court observed that stay of operation of order or notification only means that the order or notification which has been stayed would not be operative from the date of passing of the stay order and it does not mean that the order or notification has been wiped out from existence. An order of stay granted pending disposal of a writ petition, comes to an end with the dismissal of the substantive proceedings and it is the duty of the court in such a case to put the parties in the same position they would have been but for the interim orders of the court. The Court also observed that, "the grant of stay of notification in the instant case had not the effect of relieving the consumers/petitioners of their obligation to pay late payment surcharge/interest on the amount withheld by them when their writ petitions were dismissed ultimately. Holding otherwise would mean that even though the Electricity Board, who was the respondent in the writ petitions succeeded therein, yet would be deprived of the late payment surcharge which was due to it under the tariff rules/regulations. It would be a case where the Board suffers prejudice on account of the orders of the court and for no fault of its. It succeeds in the Page 1792 writ petition and yet loses. The consumer files the writ petition, obtains stay of operation of the notification revising the rates and fails in his attack upon the validity of the notification and yet he is relieved of the obligation to pay the late payment surcharge for the period of stay, which he is liable to pay according to the statutory terms and conditions of supply - which terms and conditions indeed form part of the contract of supply entered into by him with the Board. The contention that when the operation of the notification itself was stayed, no surcharge could be demanded upon the amount withheld cannot be accepted. Several petitioners (their Counsel) word the stay petition differently. One petitioner may ask for injunction, another may ask for stay of demand notice, the third one may ask for stay of collection of the amount demanded and the fourth one may ask for the stay of the very notification. Such distinctions are bound to occur where a large number of writ petitions are filed challenging the same notification. The interim orders made by the Court may also vary in their phraseology in such a situation. The acceptance of the appellants' argument would thus bring about a discrimination between a petitioner and a petitioner just because of the variation of the language employed by the court while granting the interim order though in substance and in all relevant aspects, they are similarly situated."

72. In the present matter, if we hold that the period of four years' disqualification has already expired during the pendency of the petitions, though, the operation of the order was kept in abeyance, then, we will be committing illegality and would be adding premium to a wrong in favour of the petitioners. An order, which is kept in abeyance, the operation of which has been stayed and the other party has been restrained from enforcing it, would certainly revive and look into the eyes of the wrong doer on dismissal of his cause and case. The disqualification is for a period of four years, the law does not say that irrespective of the stay by the Court, the period would continue to run, it cannot be held that the period has already expired. The disqualification incurred by the petitioners will have to be suffered by them. They cannot say that despite stay from the High Court, the period has run away. If this argument is accepted, then, some day the State or the respondent would come and say that though there is stay, but, as the period is running out, they would take a drastic action. If such would be the situation, then, nobody wriggles out of it.

73. Agreeing with Mr. Trivedi, learned Advocate General for the State, we must hold that the period of four years would be counted from the date of dismissal of the Writ Applications and the period of four years would start running from the date of the order upto the date the High Court granted stay, i.e. 03/05/1994, and the balance period would start running from the date of dismissal of these Writ Applications.

74. We ask the State Government to take immediate appropriate action against each of the petitioners. Let a copy of this order be also sent with full details of each of the petitioners to the State Election Commission to bring to their notice that these persons have been disqualified under the provisions of the Page 1793 Gujarat Municipalities Act and have been removed under Section 37 of the Municipalities Act and, therefore, are disqualified under Section 11 of the said Act and if such disqualification leads to any further consequential disqualification under any other Act or for holding any other post, then, such an action should immediately be taken by the Election Commission.

75. So far as the argument that by action of the petitioners the Municipality had not suffered any financial loss is concerned, that must be rejected. It is to be seen that the petitioners, in their conjoint effort, did whatever was possible for them, they passed the resolution, they required the Municipality to issue orders and they observed that these persons would be deemed to have taken charge. Further, because of the intervention of a third agency, if these persons could not succeed in their game, then, the wrong committed by them would not become right, because, wrong continues to be wrong and the wrongdoer would be answerable to action by the government.

76. Each of the petitions is dismissed with costs quantified at Rs. 5000/- against each petitioner. Rule is discharged. Interim relief, granted earlier shall stand vacated.

77. Before we part, we must note that on 28.6.2006, during course of hearing, when we wanted to put certain questions to Mr. Oza, he did not allow us to put questions.... We repeatedly asked Mr. Oza to listen to the questions and then answer the same, Mr. Oza tendered his apology and allowed us to complete our questions. Mr. Oza repeatedly repeated the same conduct on number of the occasions. Mr. Oza, Senior Counsel did not permit us to put the questions and went on arguing the matter. When one of us [R.S. Garg, J.] was suggesting the other Hon'ble Judge [M.R.Shah, J.] that we need not put any questions as the questions were disturbing Mr. Oza, Mr. Oza tendered apology. One of us suggested Mr. Oza that if a Judge was advising another Judge, a lawyer should not interfere in the matter, Mr. Oza said that he was aware of this. Disgusted with the conduct of Mr. Oza as exhibited in the open Court in presence of lawyers, which would be clear from proceedings recorded on 28.6.2006 in presence of Mr. Oza, we told Mr. Oza that we did not wish to put any question and he could continue with his argument, for the reasons best known to Mr. Oza, he made a comment that he was listening to the comments made by the Court which were made time and again, to that, we said that we were not making any comments and in any case, we were sorry, Mr. Oza can continue his arguments. Mr. Oza for the reasons best known to him and taking bad of the suggestion made by the Court, with a great thud closed the book and said that he had concluded his arguments and the Court may pass orders. We have recorded the conduct of Mr. Oza in great details in proceedings dated 28th June, 2006. At one point of time, we wanted to refer the matter to the Full Court for reconsideration of the honour of Senior Advocate conferred upon Mr. Oza, but on the second consideration, we think that we must advise Mr. Oza to conduct himself properly and not to behave in a manner as exhibited in this Court. We must say that if a lawyer has a right to argue his client's case, then, Judges also have a right to put questions. If the Page 1794 Judges are showing their patience and are hearing arguments, then, the basic etiquette on the part of an advocate is to allow the Judge to complete his question, show patience, understand the question and reply the same first. A lawyer, even in the heat of the moment cannot be allowed to misbehave in the Court. In the present matter, Mr. Oza continued to commit misconduct, tendered repeated apologies and ultimately made a statement that in the heat of the moment he had stopped his arguments. From a novice or a new lawyer who has not seen the Courts or has not developed court manners, we could expect such misconduct and could simply advise him not to repeat it, but it is very painful even for the Judges to accept such behaviour and misconduct exhibited by a Senior Counsel. Mere appearance of a Senior Advocate is no guarantee that he would win the case. In a Court not the face but the case counts. Within Court crafts an advocate can do anything but that does not mean that he can cross the limits of decency nor he can be allowed to forget basic manners in the heat of moment. An advocate must not forget that his client relies upon his skill. We would request Mr. Oza with folded hands that the Judges of this Court are also human being and insult offered to them is an insult to the entire institution of which a lawyer is also an officer. When a lawyer misbehaves in the Court, then, he undermines the authority of his own institution and thereby undermines his own authority. When a lawyer abuses a Judge, he, in fact, abuses his own self. Instead of proceeding further in the matter of conduct of Mr. Oza, we put a curtain on the entire episode with a pious hope that such conduct which pollutes and contaminates the atmosphere of the Court would not be exhibited again.

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Gujarat High Court