Gujarat High Court
Kirtisinh G. Rana vs State Of Gujarat And Ors. on 4 May, 1990
Equivalent citations: (1990)2GLR1278
JUDGMENT N.B. Patel, J.
1. This Letters Patent Appeal is directed against the order dated the 26th March, 1990 passed by the learned single Judge of this Court in Special Civil Application No. 2557 of 1990 whereby he has summarily rejected the said Special Civil Application.
2. In the Special Civil Application the relevant relief claimed by the appellant was for the issuance of an appropriate writ, Direction or Order quashing and setting aside the decision and order dated the 5th March, 1990 of the Director of Municipalities, Gujarat State confirming the order dated the 11th January, 1990 passed by the Collector of Surendranagar. By the order dated the 11th January, 1990 the Collector had declared that the appellant was disabled from continuing as a Member and President to the Wadhwan Municipality inasmuch as the appellant was professionally interested or engaged in a case against the Municipality during the term for which he was elected as a Member of the Municipality.
3. Shortly the facts of the case are as follows. The appellant is a practising Advocate of Wadhwan and he had contested election to the Wadhwan Municipality and he was declared on 30th September, 1988 as having been elected as a Member of the Municipality. It appears that prior to the filing of the nomination paper for the election the appellant was engaged as the advocate of one Prajapati Popat Karsan who had filed Civil Suit No. 32 of 1988 in the Court of the Civil Judge (J.D.), Wadhwan claiming certain reliefs against the Wadhwan Municipality. It is alleged that even after being elected to the Municipality on 30th September, 1988, the appellant continued to represent the aforesaid Prajapati Popat Karsan in the aforesaid suit against the Municipality. On the basis of this allegation an application was made by certain persons against the appellant to the Collector of Surendranagar stating that the appellant was disabled from continuing to be a member of the Municipality and his office should be declared as having fallen vacant as provided for by Section 38(1)(c) of the Gujarat Municipalities Act, 1963 (hereinafter to be referred to as 'the Act'). The Collector held inquiry on the aforesaid application and found that the appellant had continued to represent the plaintiff in the aforesaid suit against the Municipality even after his election on 30 September, 1988, and therefore, he was disabled from continuing as a member of the Municipality and his seat had fallen vacant. As stated earlier, this order was passed by the Collector on 11th January, 1990 and the appellant challenged the same by filing an appeal to the State Government and the appeal was decided by the Director of Municipalities, Gujarat State by his order dated the 5th March, 1990 confirming the order of the Collector. In the aforesaid Special Civil Application the appellant challenged this order passed by the Director of Municipalities, Gujarat State acting on behalf of the State Government.
4. It was contended by Shri Raval on behalf of the appellant that in the present case, the appellant had ceased to be professionally interested or engaged in the aforesaid suit against the Municipality with effect from 29th August, 1988 (i.e., before his getting elected to the Municipality) by reason of a letter dated the 29th August, 1988 written by his client, i.e., the plaintiff in suit informing him (appellant) in reply to a letter written by the appellant to his client that he (the appellant's client) was relieving him as his Advocate in the suit against the Municipality. The record shows that, in fact, the appellant had submitted a purshis of retirement from the case to the Court as late as on November, 1988. Relying upon the decision 1988. Relying upon the decision of the Bombay High Court in the case of Lomeshprasad Hariprasad Desai v. State of Bombay and Anr. Shri Raval submitted that it was immaterial as to when the appellant had filed purshis of retirement before the Court if it found that his engagement as a lawyer had come to an end by virtue of the letter dated the 29th August, 1988 written by his client to him in reply to his letter to his client for relieving him as his lawyer in the suit. It is true that the decision cited by Shri Raval fully supports the proposition that in order to decide whether a councillor can be said to be in the employ of the Municipality or not (or whether he was professionally interested or engaged in any case against the Municipality), the Court must look not at the Civil Procedure Code, but to the ordinary law which regulates the contract between master and servant or advocate and client. In other words, if the letter dated the 29th August, 1988 is accepted as genuine, the engagement of the appellant as an advocate against the Municipality in the aforesaid suit must be held to have come to an end on 29th August, 1988 i.e., before the appellant was elected as a member of the Municipality. However, the Collector as well as the Director of Municipalities have not acted upon this letter dated the 29th August, 1988 in view of the fact that on 22nd November, 1988 the appellant as the advocate of the plaintiff in the suit had filed an application before the learned Civil Judge praying for extension of the status quo order which the learned Judge had earlier passed in favour of the plaintiff in the suit. It appears that the status quo order had expired on 29th October, 1988 and thereafter on 22nd November, 1988 an application was submitted to the learned Judge, admittedly under the signature of the appellant as the plaintiff's lawyer in the suit, stating that on the 29th October, 1988 the appellant was busy before the Surendranagar Court in connection with another case, and therefore, he had not applied on that day on behalf of the plaintiff for extension of the statue quo and he was therefore, applying for extension of the status quo on the 22nd November, 1988. The appellant had raised a controversy about his authorship of this application stating that his nephew, who was working with him in his office had used a blank paper signed by him for writing out the application and had submitted the same to the Court. However, the Collector and the Director of Municipalities have not accepted this explanation and have as a matter of fact found that the application was submitted by the appellant and that he was also present in the Court on that day. In the order passed by the learned Civil Judge below this application, it was first stated that the appellant was not present, and therefore, the application was kept for hearing on 30th November, 1988 but the word "not" is scored off. The appellant alleged that this word was scored off by somebody inimically disposed towards him. This explanation tendered by the appellant was not accepted by the Collector and the Director of Municipalities and if the learned single Judge did not enter into this factual controversy but accepted the factual finding recorded by the Collector and the Director, his view cannot be found fault with. It is also pertinent to note that in the retiring purshis dated the 30th November, 1988 there was no reference to the letter dated the 29th August, 1988 allegedly written by the appellant's client to the appellant. Therefore, the alleged letter dated the 29th August, 1988 cannot be said to be above suspicion. It is then clear that on the 22nd November, 1988 i.e., even after his election, the appellant had acted as advocate against the Municipality in the aforesaid suit. In other words, the appellant who was engaged as Advocate prior to the election had continued to act as advocate even after his election on 30th September, 1988. The question raised is whether the appellant's act in continuing to act as an advocate in the aforesaid suit against the Municipality even after his election attracts the disability mentioned in Section 38(1)(c) of the Act.
5. It was contended by Shri Raval that mere continuance of service as an advocate after election does not attract the disability if his initial engagement as an Advocate was prior to his getting elected. In order to appreciate this contention a reference is required to be made to Section 38(1)(c) of the Act which reads as under:
38. (1) If any councillor during the term for which he has been elected or nominated:
(c) is professionally interested or engaged in any case for or against the Municipality.
he shall subject to the provisions of Sub-section (2) be disabled from continuing to be a councillor and his officer shall become vacant.
Obviously, the object behind enacting the aforesaid provision of Section 38(1)(c) of the Act is to see that there is no conflict between an advocate's professional duty towards his client and his duty as a councillor to protect the interests of the Municipality. If this is the object underlying the provision, as indeed we find it to be, it makes no difference between a case where the councillor was engaged as an Advocate earlier but continues to act as advocate even after his election and a case where he, for the time, accepts a brief against the Municipality after his election. Even in the former case the object to avoid conflict of interest and duties will be frustrated. Even in normal parlance we refer to an advocate as having been engaged by his client throughout the proceedings or till he retires from the proceedings. It cannot be said that on 22nd November, 1988 when the appellant submitted the application for extension of the status quo order he was not engaged as an advocate for the plaintiff in the suit against the Municipality. It is also material to note that Section 58(1)(c) is worded in a very wide manner by using the expression "is professionally interested or engaged". By no stretch of imagination it can be said that the appellant was not even professionally interested in the suit against the Municipality on 22nd November, 1988 when he applied for extension of the status quo order. We have no hesitation in taking the view that the disability referred to in Section 38(1)(c) of the Act will be attracted even in a case where an advocate continues to be engaged as an advocate for or against the Municipality after his getting elected to the Municipality. It is not possible to accept the view that the disability will be attracted only in a case where an advocate is engaged in a suit for or against the Municipality only after his getting elected to the Municipality. It will also be attracted in a case like the present one where, the initial engagement was prior to the election but it continued even after the election. We, therefore, do not accept the interpretation of Section 38(1)(c) of the Act canvassed for by Shri Raval.
6. The reference by Shri Raval to the case of Keshav Govind Kulkarni v. Extra Assistant Judge, South Satara and Ors. AIR 1960 Bombay 127 is, with respect, totally misconceived. There the Division Bench of the Bombay High Court was concerned with the effect of Sections 22 and 15 of the Bombay District Municipal Act and it was held:
Under Sub-section (3) of Section 15 as it now stands, the Collector is only empowered to decide whether a vacancy has arisen under Sub-section (2), that is, whether a councillor has, after his election and during the term of his Office, incurred any disqualification. The Collector is not empowered to decide, after the election is over, whether a candidate was or was not qualified to stand for election. This question can, therefore, be raised and decided in an election petition filed under Section 22.
It may only be pointed out that we do not find provision in the Act disqualifying a person from filing nomination and/or contesting election to the Municipality by reason of his being engaged as an Advocate against the Municipality. It may be a disqualification under Section 1 l(2)(c) of the Act to be engaged for the Municipality but it is not a disqualification to be engaged as an Advocate against the Municipality till one is actually elected to the Municipality. Therefore, the citation of the above decision by Shri Raval is in apposite.
7. The amendment in Section 25 of the Gujarat Panchayats Act, 1961 brought about by Gujarat Act 53 of the 1963 has no bearing on the interpretation of Section 38(1)(c) of the Act as, by the said amendment, the same disability which was earlier attached to an elected or appointed member was attached also to a co-opted member.
8. We may mention that Shri Vyas on behalf of the respondents, raised a preliminary objection to the maintainability of this appeal on the ground that the Special Civil Application was one under Article 227 of the Constitution of India. We have not touched this contention regarding the maintainability of the appeal. In our view, a part from the question of maintainability of the appeal, the appeal is devoid of any merit and accordingly we dismiss the same summarily.
Ad interim relief is vacated.