Gujarat High Court
Alpabala Dilipkumar Sabwa vs State Of Gujarat on 9 September, 2022
C/SCA/12460/2022 CAV JUDGMENT DATED: 09/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12460 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT Sd/-
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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ALPABALA DILIPKUMAR SABWA & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR BHARAT T RAO(697) for the Petitioners
MS MANISHA LAVKUMAR SHAH, GOVERNMENT PLEADER with
MS SHRUTI PATHAK, AGP for the Respondents - State Authorities
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 09/09/2022
CAV JUDGMENT
1. The present petition is filed by the petitioners Page 1 of 46 Downloaded on : Fri Sep 09 20:57:57 IST 2022 C/SCA/12460/2022 CAV JUDGMENT DATED: 09/09/2022 being aggrieved by and dissatisfied with the order impugned dated 30.06.2022 passed by the Deputy Secretary, Urban Development and Urban Housing Department, Government of Gujarat - respondent No.1, by which the body of the Botad Nagarpalika is dissolved.
2. The facts leading to filing of this petition are as under :
2.1 The last election of Botad Nagarpalika was held on 28.02.2021 and the election of President and Vice-President was held on 20.03.2021, in which Ms.Rajeshwariben Rajubhai Vora was elected as President of Botad Nagarpalika. However, as the elected members of ruling party-BJP had grievances against President -
Ms.Rajeshwariben, she resigned from the said post on 05.05.2022.
2.2 Thereafter, once again the agenda for the election of President and Vice-President has been issued, wherein BJP has issued mandate in favour of one Ms.Dharmishtaben Upendrabhai Jotaniya for the post of President. However, the elected members of BJP revolted Page 2 of 46 Downloaded on : Fri Sep 09 20:57:57 IST 2022 C/SCA/12460/2022 CAV JUDGMENT DATED: 09/09/2022 and 23 members gave vote in favour of petitioner no.1, who was councilor from Ward no.10 of Botad, on 31.5.2022 and therefore, the petitioner no.1 was elected as President.
2.3 Thereafter, as the petitioner no.1 was elected as President against the whip of BJP, the local organization of BJP with the help of State BJP started harassing the councilors and ensured that maximum number of councilors leave the group of petitioners. It is the case of the petitioners that 8 councilors who had supported the petitioner no.1 at the election of President are no more with her group.
2.4 Thereafter, on 22.6.2022 general Board of Nagarpalika met and Vice President was elected on 29.6.2022.
2.5 It is the case of the petitioners that on 13.6.2022, a show cause notice was issued to the petitioner no.1 and elected members of Botad Nagarpalika through respondent no.1 calling upon the Nagarpalika as to why the Nagarpalika should not be Page 3 of 46 Downloaded on : Fri Sep 09 20:57:57 IST 2022 C/SCA/12460/2022 CAV JUDGMENT DATED: 09/09/2022 dissolved under Section 263(1) of the The Gujarat Municipalities Act, 1963 (hereinafter referred to as `the Act' for short), alleging that the elected body of the Nagarpalika has failed to discharge the duties entrusted upon it under the Act and that Nagarpalika is unable to discharge its duties.
2.6 Pursuant to the said show cause notice, the Special General Board meeting of Board was convened on 22.6.2022 and draft reply to the said show cause notice was placed before the Board. However, the respondent no.1 refused to accept the same and called upon the petitioners to submit the reply alongwith entire proceedings.
2.7 Thereafter, on 28.6.2022, the petitioners submitted reply to the respondent no.1 along with the annexures. The petitioners submit, that immediately on 30.6.2022, without giving any opportunity of hearing to the petitioners, passed the orders and dissolved the Nagarpalika under Section 263(1) of the Act and also appointed respondent no.1 as Administrator. Therefore, the present petition is filed.
Page 4 of 46 Downloaded on : Fri Sep 09 20:57:57 IST 2022 C/SCA/12460/2022 CAV JUDGMENT DATED: 09/09/2022 2.8 Rule. Learned AGP waives service of notice of rule on behalf of the respondents. With consent of the learned advocates, this matter is taken up for final hearing today.
3. Heard Mr. Bharat T. Rao learned advocate for the petitioners and Ms. Manisha Lavkumar Shah, learned Government Pleader with Ms. Shruti Pathak, learned Assistant Government Pleader for the State Authorities.
3.1 Mr. Rao, learned advocate for the petitioners has submitted that the impugned order passed by respondent No.1 is an abuse of process of law, misuse of powers vested to the Authority and without appreciating the material available on record, as the show-cause notice was issued on 13.06.2022 to the petitioners, reply to the said show-cause notice was submitted on 28.06.2022 and the impugned order is passed on 30.06.2022 by the concerned Authority. He has submitted that it is a case of victimization as the Authority has acted on the basis of the show-cause notice only and has not kept in view the reply submitted by the petitioner/s. Page 5 of 46 Downloaded on : Fri Sep 09 20:57:57 IST 2022 C/SCA/12460/2022 CAV JUDGMENT DATED: 09/09/2022 He has submitted that the alleged activities and irregularities shown in the show-cause notice are much prior to taking charge by petitioner No.1 as President of the Nagarpalika.
3.2 Mr. Rao, learned advocate for the petitioners has submitted that the Authorities have acted with bias mind with the petitioner/s and passed the impugned order. In support of his submission, he has relied upon the decision rendered by this Court in the case of Virani Enterprise versus State of Gujarat in Special Civil Application No.7355 of 2022, more particularly Para : 11 thereof. He has submitted that considering the said decision, two principles would emerge i.e. (i) audi alteram partem and (ii) nemo in propria causa judex, esse debet. He has submitted that it means (i) no one should be made a judge in his own cause or the rule against bias and (ii) hear the other party or the rule of fair hearing or the rule no one should be contemned unheard. He has submitted that the said rules are required to be followed, which is violated in the present case.
Page 6 of 46 Downloaded on : Fri Sep 09 20:57:57 IST 2022 C/SCA/12460/2022 CAV JUDGMENT DATED: 09/09/2022 3.3 Mr. Rao, learned advocate for the petitioners has submitted that the Authorities have not considered the para-wise reply dated 27.06.2022 to the show-cause notice with all the relevant details submitted by the President of the Nagarpalika - present petitioner No.1. However, the respondent Authorities have committed gross error while deciding the proceedings under Section 263 of the Act and has not dealt with the para-wise reply submitted by the Nagarpalika and has not given findings on each point of the reply, which amounts to non-reasoned order passed by respondent No.1. He has submitted that the President of the Nagarpalika - present petitioner No.1 has given detailed explanation of Points No.1 to 8 para-wise / point-wise, but the Authorities has not dealt with it in the impugned order and therefore, he has submitted that the impugned order is passed without application of mind and without considering the material available on record and thus, the impugned order is untenable in the eyes of law and can be considered as nullity. He has submitted that the Authority has acted in bias and erroneous manner and has acted against the principles of natural justice. At this juncture, learned advocate for the petitioners has Page 7 of 46 Downloaded on : Fri Sep 09 20:57:57 IST 2022 C/SCA/12460/2022 CAV JUDGMENT DATED: 09/09/2022 referred to Section 263 of the Gujarat Municipalities Act, 1963, which is as under :
"263. Power of State Government to dissolve or supersede municipality in case of incompetency, default or abuse of power:-
(1) If, in the opinion of the State Government, a municipality is not competent to perform, or deliberately makes default in the performance of the duties imposed on it by or under this Act, or otherwise by law or exceeds or abuses its powers, the State Government may, after giving the municipality an opportunity to render an explanation, by an order published, with the reasons therefore, in the Official Gazette, declare the municipality to be incompetent or in default, or to have exceeded or abused its powers, as the case may be, and may dissolve such municipality [* * * * *]. 77 * * * * * (2) Consequences of dissolution:- When the municipality is so dissolved [* * * * *], the following consequences shall ensue :-
(a) all councillors of the municipality shall [* * * *] in the case of dissolution as from the date specified in the order of dissolution, vacate their offices as such councillors ;
(b) all powers and duties of the municipality shall, during the period of dissolution [* * * *] be exercised and performed by such officer as the [Commissioner] from time to time appoints in this behalf; [* * * * *] (3) (a) Constitution of Municipality after dissolution:-
An election to constitute a municipality shall be completed before the expiration of a period of six Page 8 of 46 Downloaded on : Fri Sep 09 20:57:57 IST 2022 C/SCA/12460/2022 CAV JUDGMENT DATED: 09/09/2022 months from the date of its dissolution:
Provided that where the remainder of the period for which the dissolved municipality would have continued is less than six months, it shall not be necessary to hold any election under this clause for constituting the municipality for such period;
(b) A municipality constituted upon the dissolution of municipality before the expiration of its duration shall continue only for the reminder of the period for which the dissolved municipality would have continued had it not been so dissolved.] [* * * * *] Explanation.-If for any reason the number of vacancies in a municipality exceeds two-thirds of the total number of seats the municipality shall be deemed to be not competent to perform the duties imposed on it by or under this Act."
3.4 Mr. Rao, learned advocate for the petitioners has submitted that in view of above provisions of the law, the Authority has not acted in true spirit. He has submitted that the impugned order is passed arbitrarily and not independently by the Authority.
3.5 Mr. Rao, learned advocate for the petitioners has submitted that petitioner No.1 has taken charge as President of the Botad Nagarpalika very recently and within one month from taking her charge, such proceedings are initiated, which is clearly established Page 9 of 46 Downloaded on : Fri Sep 09 20:57:57 IST 2022 C/SCA/12460/2022 CAV JUDGMENT DATED: 09/09/2022 that such proceedings are initiated with political motive and therefore, he has submitted that such exercise of the respondents Authorities are nothing but colourless exercise and is arbitrary.
3.6 Mr. Rao, learned advocate for the petitioners has relied upon the following judgments in support of his submissions :
(i) 2003 (1) GLH 497 - Hiralal G. Siyal versus State of Gujarat
(ii) Special Civil Application No.1565 of 1997 - Savitaben Madhukar Makwana versus State of Gujarat (overruled)
(iii) Special Civil Application No.619 of 1999 - Rafiqsa Chammansa Fakir versus J.M. Vyas (overruled)
(iv) (2012) 4 SCC 407 - Ravi Yashwant Bhoir versus District Collector, Raigad 3.7 Mr. Rao, learned advocate for the petitioners has submitted that the judgments cited by him at the bar are squarely applicable to the facts of the present case.Page 10 of 46 Downloaded on : Fri Sep 09 20:57:57 IST 2022
C/SCA/12460/2022 CAV JUDGMENT DATED: 09/09/2022 3.8 Mr. Rao, learned advocate for the petitioners has submitted that this petition may be allowed by quashing and setting aside the impugned order. 4.1 Per contra, Ms. M. L. Shah, learned Government Pleader appearing with Ms. Shruti Pathak, learned Assistant Government Pleader has opposed the present petition by submitting that the present petition is not maintainable as the notice is issued to the Botad Nagarpalika and the Botad Nagarpalika has also passed a resolution dated 22.06.2022 before filing the detailed reply to the show-cause notice issued by the State Government. She has submitted that moreover, in the resolution itself the Nagarpalika has averred that whatever decision is taken by the State Government, it would be binding to the Nagarpalika and on this count only and more particularly the present petitioners have filed the petition in individual capacity without impleading even the Nagarpalika as a party respondent in the present proceedings, the petition is not maintainable. She has submitted that respondent No.1 - Authority has not committed any error or illegality in passing the impugned order, as such order is passed Page 11 of 46 Downloaded on : Fri Sep 09 20:57:57 IST 2022 C/SCA/12460/2022 CAV JUDGMENT DATED: 09/09/2022 after considering the various submissions including the reply of petitioner No.1 who is a President of the Botad Nagarpalika. Therefore, no interference is called for and the present petition deserves to be dismissed. 4.2 Ms. Shah, learned Government Pleader has submitted that some dates are relevant for consideration of the present petition. She has submitted that on 28.02.2021, the election of the Botad Nagarpalika was held. On 20.03.2021, the election of President was held. On 05.05.2022, the President who was elected earlier has resigned, therefore, on 31.05.2022, the fresh election of the President was held. At this stage, she has referred to Section 263 of the Act, which is reproduced hereinabove. She has also referred to Section 87 of the Act, which pertains to the duties of the Municipalities, which is as under.
"87. Duties of Municipality :- It shall be the duty of every Municipality to make reasonable and adequate provision for the following matters within the limits of the municipal borough, namely :-
A. In the sphere of public works -
(a) naming streets and numbering of premises:
(b) giving immediate relief to persons rendered
destitute by such natural calamity as floods, fire or Page 12 of 46 Downloaded on : Fri Sep 09 20:57:57 IST 2022 C/SCA/12460/2022 CAV JUDGMENT DATED: 09/09/2022 earthquake, within the municipal borough.
B. In the sphere of education -
establishing and maintaining primary schools. C. In the sphere of public health and sanitation-
(a) regulating or abatting offensive or dangerous trades or practices;
(b) securing or removing dangerous buildings or places and reclaiming unhealthy localities;
(c) obtaining a supply or an additional supply of water, proper and sufficient for preventing danger to the health of the inhabitants from the insufficiency or unwholesomeness of the existing supply, when such supply or additional supply can be obtained at a reasonable cost;
(d) public vaccination; Deposit of funds and investment of surplus funds. 2 of 1934. Duties of Municipalities. 1964 : Guj. 34] Gujarat Municipalities Act, 1963 63 of 158
(e) watering public streets and places;
(f) cleansing public streets, places and sewers, and all spaces, not being private property, which are open to the enjoyment of the public, whether such places are vested in the municipality or not; removing noxious vegetation; and abating all public nuisances;
(g) introducing and maintaining the system of water-
closet so as to dispense with the removal of night-soil by carrying the same in a receptacle, cart or other means;
(h) disposing of night soil and rubbish and, if so required by the State Government, preparation of compost manure from such night soil and rubbish;
(i) providing special medical aid accommodation for the sick in time of dangerous disease: and taking such measures as may be required to prevent the outbreak, or to suppress and prevent the recurrence, of such diseases:
(j) establishing and maintaining public hospitals, Page 13 of 46 Downloaded on : Fri Sep 09 20:57:57 IST 2022 C/SCA/12460/2022 CAV JUDGMENT DATED: 09/09/2022 dispensaries and family planning centres and providing public medical relief;
(k) acquiring and maintaining, changing and regulating places for the disposal of the dead, and disposal of unclaimed dead bodies and carcasses of dead animals;
(l) constructing, altering and maintaining public latrines and urinals.
D. In the sphere of development -
(a) constructing, altering and maintaining public
streets, culverts, municipal boundary marks, markets, slaughter-houses privies, drains, sewers, drainage-works, sewerage works, baths, washing places, drinking fountains, tanks, wells, dams and the like;
(b) suitable accommodation for calves, cows, or buffaloes required within the municipal borough for the supply of animal lymph;
(c) printing such annual reports of the municipal administration of the borough as may be required by general or special orders of the State Government;
(d) paying the salary and the contingent expenditure on account of such police or guards as may be required by the municipality for the purposes of this Act or for the protection of any municipal property;
(e) improving agriculture by suitable measures including crop protection and crop experiments.
E. In the sphere of town planning devising town planning within the limits of the borough according to the law relating to town planning for the time being in force. F. In the sphere of administration -
(a) lighting public streets, places and building; [1964 :
Guj. 34 Gujarat Municipalities Act, 1963
(b) extinguishing fires, and protecting life and property when tires occur;
(c) removing obstructions and projections in public Page 14 of 46 Downloaded on : Fri Sep 09 20:57:57 IST 2022 C/SCA/12460/2022 CAV JUDGMENT DATED: 09/09/2022 streets or places and in spaces, not being private property, which are open to the enjoyment of the public, whether such spaces vest in the municipality or in Government;
(d) erecting substantial boundary marks of such description and in such positions as shall be approved by the Collector, defining the limits or any alteration in the limits of the municipal borough;
(e) registering births, marriages and deaths."
4.3 She has further submitted that the last election of Botad Nagarpalika was held on 28.02.2021, the election of President and Vice-President of Botad Nagarpalika was held on 20.03.2021, on 05.05.2022 the President who was elected on 20.03.2021 resigned and therefore again the election of the President was held on 31.05.2022 whereby the present petitioner got elected as President. Learned Government Pleader has further drawn the attention of this Court towards sections 45, 49, 87 and 263 of the Act. Section 87 of the Act pertains to the duties of Municipality, section 49 pertains to powers of Chief Officer and section 45 functions of President. Sections 45 and 49 of the Act read as under.
"45. Functions of President :- It shall be the duty of the president of a municipality -
(a) to preside, unless prevented by reasonable cause, Page 15 of 46 Downloaded on : Fri Sep 09 20:57:57 IST 2022 C/SCA/12460/2022 CAV JUDGMENT DATED: 09/09/2022 at all meetings of the municipality, and subject to the provisions of the rules for the time being in force under clause (a) of section 271 to regulate the conduct of business at such meetings;
(b) to watch over the financial and executive administration of the municipality and to perform such executive functions as may be allotted to him by or under this Act ;
(c) to exercise supervision and control over the acts and proceedings of all officers and servants of the municipality in matters of executive administration and in matters concerning the accounts and records of the municipality; and, subject to the rules of the municipality for the time being in force, and for reasons to be recorded in writing to revise, set aside or modify any order of the chief officer relating to the service of the said officers and servants and their pay, privileges and allowances;
(d) the president of a municipality may in cases of emergency direct in writing the execution or stoppage of any work or the doing of any act which requires the sanction of the municipality, and the immediate execution or stoppage or doing of which is, in his opinion necessary for the service or safety of the public, and may direct in writing that the expense of executing such work or doing such act shall be paid from the municipal fund :
Provided that -
(a) he shall not act under this section in contravention of any order of the municipality prohibiting the execution of any particular work or the doing of any particular act, and
(b) he shall report forthwith the action taken under this section and the reason therefor to the executive committee and the municipality at the next meeting Page 16 of 46 Downloaded on : Fri Sep 09 20:57:57 IST 2022 C/SCA/12460/2022 CAV JUDGMENT DATED: 09/09/2022 thereof.
"49. Powers and duties of Chief Officer :- (1) The Chief Officer shall, -
(a) subject to the control, direction and supervision of the President, supervise the financial and executive administration of the municipality and perform such duties and exercise such powers as may be imposed or conferred upon him or delegated to him by or under the Act;
(b) take steps to give effect to all the decisions or resolutions of the Municipality;
(c) cause to be maintained and supervise the accounts and registers of the Municipality;
(d) subject to the orders of the municipality, take prompt steps to remove any irregularity pointed out by an auditor;
(e) prepare budget estimates and submit them to the executive committee;
(f) report all cases of fraud, embezzlement, theft or loss of municipal money and property to the President and the relevant Committee ; Powers and duties of Chief Officer. [1964 : Guj. 34 Gujarat Municipalities Act, 1963
(g) exercise supervision and control over the acts and proceedings of all the officers and servants of the municipality ;
(h) subject to the rules, by-laws and general or special orders made under the Act, determine all questions relating to pay, allowances, leave and other benefits in respect of the officers and servants of the municipality ;
(i) furnish to the Collector or such other officer as the Collector shall from time to time nominate in this behalf, a copy of every resolution passed at any Page 17 of 46 Downloaded on : Fri Sep 09 20:57:57 IST 2022 C/SCA/12460/2022 CAV JUDGMENT DATED: 09/09/2022 meeting of the municipality.
(2) The Chief Officer may with the previous sanction of the Director delegate any of the powers or duties to any municipal officer or servant: Provided that, such delegation shall be subject to such limitations, if any, as may be prescribed by the Director and also to the control and revision by the Chief Officer."
4.4 Thereafter, Ms. Shah, learned Government Pleader has pointed out that the show-cause notice was issued on 13.06.022 to the Nagarpalika by addressing the President / Vice-President. She has further pointed out that at the bottom of the notice, where the notice is sent to the Chief Officer with the further endorsement that to serve the copy of the notice to each of the elected members of the Nagarpalika and report of such service should be sent to the Deputy Secretary (State Government) by the Chief Officer of the Nagarpalika. Therefore, she has submitted that it is misconceived submission of the petitioners that notice is served on the President only. She has further clarified that, though it was not obligatory in the Act to serve to each of the member, the notice is served to the every members in the present case through the Chief Officer. Page 18 of 46 Downloaded on : Fri Sep 09 20:57:57 IST 2022 C/SCA/12460/2022 CAV JUDGMENT DATED: 09/09/2022 4.5 Ms. Shah, learned Government Pleader has pointed out from the affidavit-in-reply filed by one Mr.Tejendra Patel, Under Secretary, Urban Development Department, by which, one document is annexed to that reply which is Resolution No.87 of the Botad Nagarpalika dated 22.06.2022, which reflects that the show-cause notice was considered by the General Body where 32 members were present and all 32 members have unanimously agreed/consented that whatever decision will be taken by the State Government pursuant to the notice, the same will be acceptable by the Botad Nagarpalika. Therefore, she has submitted that now it is not open for the Nagarpalika or for any individual member to challenge such decision and therefore, the present petition deserves to be dismissed on this ground only.
4.6 Ms. Shah, learned Government Pleader has further submitted that the present petitioners have no locus to challenge the decision of the Government under Section 263 of the Act, as in the ordinary meeting, the present petitioners were the parties and the General Body of the Nagarpalika consisting 32 members has Page 19 of 46 Downloaded on : Fri Sep 09 20:57:57 IST 2022 C/SCA/12460/2022 CAV JUDGMENT DATED: 09/09/2022 passed the Resolution unanimously and therefore, now it is not open to challenge by the individual person or group of the individuals.
4.7 Ms. Shah, learned Government Pleader has further pointed out and raised objection about the non- joinder of the necessary party as Nagarpalika is not joined as a party respondent. She has further submitted that the notices were issued to the Body of the Nagarpalika and individual members were part of that Body of the Nagarpalika. Therefore, when the Body has accepted that whatever the State Government will decide pursuant to the show-cause notice, it is improper on the part of the individual members to challenge such decision of the State Government.
4.8 Ms. Shah, learned Government Pleader has also dealt with each of the explanation of the reply given by petitioner No.1 on behalf of the Nagarpalika dated 27.06.2022 and has submitted that the reply is clearly an admission on the part of the Nagarpalika about the lapses pointed out by the show-cause notice. She has pointed out that Point No.1 pertains to Section Page 20 of 46 Downloaded on : Fri Sep 09 20:57:57 IST 2022 C/SCA/12460/2022 CAV JUDGMENT DATED: 09/09/2022 51 of the Act where it is required that meeting of the General Body of the Nagarpalika is required to be held in the month of January, April, July and October and she has pointed from the reply given by the Nagarpalika qua that point that, meetings were held on 08.06.2021, 06.09.2021, 28.01.2022, 02.03.2022 and 29.03.2022, which was not as per the schedule prescribed under Section 51 of the Act for the purpose of utilising the funds of the Nagarpalika and grant received from the Nagarpalika and to plan for the various activities which is required to be carried out by the Nagarpalika, which was not done.
4.9 Ms. Shah, learned Government Pleader has further pointed out that the other points i.e. Points No.2 to 4 where also the admission about unutilised amount of the grant is made by the Nagarpalika. In response to Point No.4, there is admission also. Accordingly, Points No.5 to 8 were also the reply of the Nagarpalika, which clearly indicates that there is lacuna which is impliedly accepted though there is reason of COVID, etc., was given. She has submitted that on the contrary, during the time of COVID, the Nagarpalika is expected to do Page 21 of 46 Downloaded on : Fri Sep 09 20:57:57 IST 2022 C/SCA/12460/2022 CAV JUDGMENT DATED: 09/09/2022 more work for the service of the public at large and therefore, the Nagarpalika has failed to discharge its duty and accordingly, show-cause notice is issued by the State Government and after hearing the Nagarpalika, the State has considered all the points by considering the reply of the Nagarpalika and by discussing the points of the reply to the show-cause notice given by the Nagarpalika, where several deficiencies are found; like th unutilised grant of ₹12.49 crores of the 1512.49 crores of the 15 Finance Commission and also unutilised grant of ₹12.49 crores of the 1510.76 corers of th 14 Pay Commission. Moreover, recovery of the taxes was ₹12.49 crores of the 154.38 crores, whereas the demand is of ₹12.49 crores of the 1523.48 crores and therefore, recovery is found to the extent of ₹12.49 crores of the 1518.67 crores of the demand and therefore, the Nagarpalika is not vigilantly in performing the duties for recovery of taxes. She has further submitted that the Nagarpalika in its General Meeting vide Resolution No.58 dated 28.01.2022 has resolved to engage 175 daily wager Safai Kamdars, which was against the periodical instructions given by the State Government to the Nagarpalikas and therefore, the State Government has taken that resolution in review under Section 258 of the Act vide order dated 31.05.2022 and temporary injunction Page 22 of 46 Downloaded on : Fri Sep 09 20:57:57 IST 2022 C/SCA/12460/2022 CAV JUDGMENT DATED: 09/09/2022 was issued by the Regional Commissioner, Ahmedabad and therefore also, it is found by respondent No.1 that the Nagarpalika is acting against the instructions given by the Government. Moreover, the Nagarpalika has failed to discharge its duty by giving primary facility to the public at large like road, sewerage, street lights, drinking water, cleaning facilities with reasonable satisfaction of the public and therefore, considering overall aspects, the Deputy Secretary, Urban Development Department, who is respondent No.1 herein, has passed the impugned order on 30.06.2022, which is just and proper. 4.10 Ms. Shah, learned Government has relied upon the following judgments in support of her submissions :
(i) 2019 (2) GLR 1063 - Maheshkumar Kantilal Dave versus Development Commissioner
(ii) 2004 (20 GLR 1024 - Agriculture Produce Market Committee versus State of Gujarat
(iii) 2003 (1) GLR 97 - Varvabhai Nathabhai Rabari versus State of Gujarat
(iv) 2000 (3) GLR 2049 - Jyotiben R. Pathak versus Rafiqsa Chammansad Fakir
(v) 1999 (3) GLR 1892 - Anjar Municipality versus J.M. Vyas Page 23 of 46 Downloaded on : Fri Sep 09 20:57:57 IST 2022 C/SCA/12460/2022 CAV JUDGMENT DATED: 09/09/2022
(vi) 1998 (2) GLR 1593 - State of Gujarat versus Savitaben M. Makwana
(vii) 1970 (1) SCC 753 - Jt. Registrar of Cooperative Societies, Madras versus P.S. Rajagopal Naidu 4.11 Ms. Shah, learned Government Pleader has submitted that the decisions which are cited by Mr. Rao, learned advocate for the petitioners, more particularly, the decision in the case of Rafiqsa Chammansa Fakir (supra) is overrulled and another decision in the case of Savitaben Madhukar Makwana (supra) is also overrulled by the subsequent decision and therefore, she has submitted that the petitioners should not cite the judgment/s which are overruled by the subsequent decision and should show the correct proposition of law before the Court. She has submitted that this petition is therefore required to be dismissed.
4.12 Ms. Shah, learned Government Pleader, by referring the decisions as noted above, has submitted that no notice is required to be issued to the individual member and has relying upon the other various decisions, she has pointed out the scope and ambit of Section 263 of the Act regarding super-session of the Page 24 of 46 Downloaded on : Fri Sep 09 20:57:57 IST 2022 C/SCA/12460/2022 CAV JUDGMENT DATED: 09/09/2022 Body of the Nagarpalika. She has therefore submitted that now the malice is argued by the petitioners, but malice is not pleaded before the Authority below and therefore, that aspect cannot be considered by this Court at this stage and therefore, she has prayed to dismiss this petition with strict observations and if deem fit, with appropriate cost, as the present petitioners have no locus to file the present petition.
5. In rejoinder, Mr. Rao, learned advocate for the petitioners has submitted that since the present petitioners are the Councillors of the Nagarpalika and therefore, they have locus to challenge any order/s impugned to them. He has submitted that when the powers are exercised in arbitrary manner, the present petitioners can agitate their rights to challenge the impugned order/action of the State Government. He has further pointed out that the Authority has failed to give any independent findings on each explanation / reply given by petitioner No.1 though the present petitioner No.1 has given detailed explanation in its reply and therefore, he has submitted that there is no reason for the present petitioners but to agitate their grievance Page 25 of 46 Downloaded on : Fri Sep 09 20:57:57 IST 2022 C/SCA/12460/2022 CAV JUDGMENT DATED: 09/09/2022 before this Court by filing the present petition. He has submitted that the entire allegations are dormant allegations and are non-relevant for the purpose of considering the notice under Section 263 of the Act. He has submitted that there is no documentary evidence which is considered by the Authority while deciding such application and thus, the impugned order of respondent No.1 is bad in law, as it is without reasons on each of the allegations in detail. He has relied upon the decision of Hon'ble Apex Court in the case of Jigya Yadav versus Central Board of Secondary Education reported in (2021) 7 SCC 535, more particularly Head Note - 'N' thereof, which pertains to Article 141 of the Constitution of India and has pointed out that when there is conflict between High Court judgment and Supreme Court judgment, judgment of Supreme Court would prevail under all circumstances unless a larger Bench of the Supreme Court takes a different view. He has submitted that the impugned order is passed in arbitrary manner which is suffered from malice and therefore, this Court can exercise the powers under Article 226 of the Constitution of India by allowing this petition.
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6. Ms. Shah, learned Government Pleader has submitted that she has no further submissions to argue, as she has covered all the points in the earlier submissions.
7.1 I have heard learned advocates for the respective parties. I have gone through the pleadings made by the parties. I have also considered the material on record. I have also gone through the decisions relied upon by the respective parties.
7.2 It is the case of the petitioner in the present petition that the petitioners are members of Nagarpalika and the respondent authority i.e. the State Government has passed the order on 30.06.2022 dissolving Botad Nagarpalika and appointing respondent No. 2 as administrator, which, as per the submissions made by the learned Government Pleader, powers are covered under sections 262 and 263 of the Gujarat Municipalities Act, 1963. Now, discussing the submissions made on behalf of the petitioners, the following aspects are required to be considered.
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C/SCA/12460/2022 CAV JUDGMENT DATED: 09/09/2022 7.3 Mr. Rao has contested his case by mainly contending that the impugned action of the respondent authority - State Government of resorting to Section 263 of the Act is nothing but misuse of powers conferred upon the State Government by Section 263 of the Act. He has further submitted that the present petitioners are the member of the Nagarpalika and the petitioner No. 1
- Alpabala Dilipkumar Sabwa was elected as the President in its meeting convened on 31.05.2022 and the impugned notice is issued on 13.06.2022 by the respondent authority to the President / Vice-President of the Botad Nagarpalika and asked to show cause as to why the action under section 263 of the Act be not initiated against the Nagarpalika. He has further submitted that all the allegations in the said notice is based on the report of the Commissioner of Municipalities, Gujarat State dated 09.06.2022 and the Regional Commissioner of Municipalities dated 09.06.2022. He has further submitted that if this Court has considered the various allegations made in the said notice in sub clause 2 (1 to 7), all the allegations are not having any live connection with the activities and were of the earlier point of time, and that the present Page 28 of 46 Downloaded on : Fri Sep 09 20:57:57 IST 2022 C/SCA/12460/2022 CAV JUDGMENT DATED: 09/09/2022 President and other office bearers of the body have taken charge with effect from 31.05.2022. He has further submitted that merely issuing show-cause notice without supplying relevant material is nothing but victimization. He has further submitted that the State Government has to form the opinion before issuing such notice to the Nagarpalika which is not there in the communication dated 13.06.2022. He has further submitted that the provisions of Sections 2, 31, 32, 45, 46 and 51 of the Act pertains to duties of the President and also the duty of the Chief Commissioner and considering this he has submitted that it cannot be said that the Nagarpalika has failed to discharge its statutory duties in any manner. It is further submitted by the learned advocate for the petitioner that the General Board has passed the resolution dated 22.06.2022 and has also sent the detailed representation dated 27.06.2022 of the show- cause notice with item-wise explanation. He has also submitted that along with these explanations the relevant documents were also annexed and sent along with the explanations. His submissions therefore that looking to the impugned order dated 30.06.2022 the Deputy Secretary, Urban Development Department has passed Page 29 of 46 Downloaded on : Fri Sep 09 20:57:57 IST 2022 C/SCA/12460/2022 CAV JUDGMENT DATED: 09/09/2022 the impugned order without appreciating the detailed reply given by the present petitioner to the show-cause notice and no reasons are assigned to reach at the conclusion that the petitioner - Nagarpalika has failed to discharge its duties in accordance with the Act and therefore he has relied on Section 263 of the Gujarat Municipalities Act, 1936, which was reproduced hereinabove.
7.4 Now, considering the submissions made by learned advocate for the petitioners that on perusal of the section itself, the impugned order is per se illegal as no finding is given or no discussion of the reply in the said order is given. Hence, as per submissions of Mr. Rao, learned advocate for the petitioners, the said order is a non-reasoned order and also there is violation of principles of natural justice. It is also submitted that no opportunity of personal hearing is given to any office bearer of the Nagarpalika before passing of such order and has further submitted that the powers are exercised in arbitrary manner and he has submitted that the entire allegations on the basis of which the show-cause notice is issued are dormant allegations and not relevant Page 30 of 46 Downloaded on : Fri Sep 09 20:57:57 IST 2022 C/SCA/12460/2022 CAV JUDGMENT DATED: 09/09/2022 to the present body of the Nagarpalika.
7.5 He has further submitted that therefore the extra-ordinary powers of this Court is required to be exercised by considering the judgment dated 04.05.2022 of the Division Bench of this Court passed in Special Civil Application No. 7355 of 2022, more particularly at Paras: 9, 10 and 11. He has further relied upon the judgment of this Court in the case of Hiralal G. Siyal and Ors V/s. State of Gujarat and Ors. reported in 2003 (1) G.L.H. 497 more particularly Paras: 3, 4, 5, 10, 11, 14 and 15. He has also relied upon the judgment of this Court in the case of Savitaben Madhukar Makiwana V/s State of Gujarat reported in 1998 (1) GLR 321. He has further relied upon the judgment of this Court in the case of Rafiqsa Chammansa Fakir V/s. J. M. Vyas reported in 2000 (3) GLR 2049 and lastly he has relied upon the judgment in the case of (2012) 4 SCC 407 and has heavily relied on these decisions which are applicable to the facts of the present case, the respondent authorities have failed to give reasons in the impugned order causing violation of the principles of natural justice and hence, the impugned order dated 30.06.2022 passed Page 31 of 46 Downloaded on : Fri Sep 09 20:57:57 IST 2022 C/SCA/12460/2022 CAV JUDGMENT DATED: 09/09/2022 by the Deputy Secretary, Urban Development and Urban Housing Department, Government of Gujarat - respondent No. 1 dissolving the Botad Nagarpalika is required to be quashed and set aside by exercising extra- ordinary powers by this Court under section 226 / 227 of the Constitution of India.
7.6 This Court finds that the extra-ordinary General Meeting of the Nagarpalika has passed the resolution on 22.06.2022 and on the basis of which, the reply is submitted under the signature of present petitioner No.1.
7.7 Considering the averments made in the reply, this Court finds that under Section 51 of the Act, periodical meetings are to be conducted for the development work in the month of January, April, July and October of every year, however as per the reply of the petitioner, the Nagarpalika has held the meetings on 08.06.2021, 06.09.2021, 28.01.2022, 02.03.2022 and 29.03.2022, which is against the requirement of the statutory provisions of law and therefore on that count, the Nagarpalika has failed to discharge its statutory Page 32 of 46 Downloaded on : Fri Sep 09 20:57:57 IST 2022 C/SCA/12460/2022 CAV JUDGMENT DATED: 09/09/2022 duties.
7.8 In respect of item No. 2 of the show-cause notice, the Nagarpalika has admitted that about Rs.24 crores given towards the grant under Swarnim Jayanti Chief Minister Urban Development Scheme and there is no justification for not using the said grant is also established and thus it proves the allegations at item No. 2 of the show-cause notice. It also transpires from the reply qua item Nos.3 and 4, which pertain to lapse th th of grants under the 14 Pay Commission and 15 Pay Commission, the Nagarpalika clearly admits that such grant was remaining unutilized and in view of clear admission and lack of justification on the part of Nagarpalika, the allegations at item Nos.3 and 4 are found to be valid. In view of item No. 5 which pertains to unused grant of outgrowth area of Rs. 1.61 crores, where also, there is clear-cut admission by the Nagarpalika. As per item No.6, it indicates that though there is a demand of Rs. 23.48 crores towards taxes, the recovery is only Rs. 4.38 crores in the year 2021-22 which comes to 18.67% and therefore also, submissions made by the Nagarpalika clearly show that the Page 33 of 46 Downloaded on : Fri Sep 09 20:57:57 IST 2022 C/SCA/12460/2022 CAV JUDGMENT DATED: 09/09/2022 Nagarpalika has worked in incompetent and inefficient manner. Moreover, looking at item No. 7 which pertains to employment of 175 daily-wagers / sweepers is also against the instructions given by the State Government and no proper justification is given on that count by the Nagarpalika. At item No. 8, the Nagarpalika has failed to discharge its duties in competent and efficient manner.
7.9 Considering these aspects, this Court appreciates the judgments cited at the bar. It is true that as per the submissions of Ms.Shah, learned Government Pleader that the judgments cited by learned advocate for the petitioner in the case of Savitaben Madhukar Makiwana (supra) and in the matter of Rafiqsa Chammansa Fakir (supra) are over-ruled by the subsequent decisions. If we consider the judgment of this Hon'ble Court in the case of Hiralal G. Siyal and Ors (supra) cited at the bar by learned advocate for the petitioner, I find that this Court has held after considering various submissions of the parties in Paras:
14 and 15, which is regarding the rational ground or material was available with the authority for the purpose Page 34 of 46 Downloaded on : Fri Sep 09 20:57:57 IST 2022 C/SCA/12460/2022 CAV JUDGMENT DATED: 09/09/2022 of initiating the proceedings, which are as under :
14. In view of the aforesaid aspect of the matter and considering the charges levelled against the Municipality as well as considering the fact that most of the grounds were, as such, not in existence at the time when the proceedings were initiated, as some of them relates to the remote past, in my view, it cannot be said that there was any rational and existing material, which can be said to have been in existence at the time when proceedings were initiated and at the time when the final order was passed by the authority.
Unfortunately, in a very casual and perfunctory manner, the elected body is removed by the impugned order. It seems that a show-cause notice was issued first, and thereafter, the authority tried to collect the material for dislodging the elected body. In fact, there is hardly any material, from which the Court can come to the conclusion that even at the time when the notice was issued, any rational ground or material was available with the authority for the purpose of initiating the proceedings. Even as stated earlier, considering the nature of the charges, as well as the grounds based on which the proceedings are initiated, in my view, none of such charges or grounds can be said to be relevant, by which it can be said that the Municipality has committed default in the performance of the duties imposed on it.
15. Some of the grounds, which are mentioned in the said show-cause notice, are such that, perhaps, they will be in existence in all the Municipalities as well as available in all other local authorities in the State. It is difficult to appreciate the conduct of the State in picking up only a particular Municipality for such Page 35 of 46 Downloaded on : Fri Sep 09 20:57:57 IST 2022 C/SCA/12460/2022 CAV JUDGMENT DATED: 09/09/2022 action. Even otherwise, some of the incidents are as back as of 2000-2001, and if there is nothing on record to show that subsequently also, the aforesaid defect or irregularity continues, in my view, the proceedings could not have been initiated without there being any existing material, as the learned Advocate General has also conceded that what is more important is the availability of grounds at the time of taking action and for that purpose, remote past incident may not be a relevant factor for taking such proceedings. At the time when the proceedings are initiated, there has to be some material, by which it can be said that at the time of taking action, the grounds are available, by which one can come to the conclusion that the Municipality has failed to exercise its powers or has abused the powers. Such ground certainly will have to be in existence at the time when proceedings are initiated and for that purpose, reference to some past incidents of some years back cannot be said to be a rational or reasonable ground. In my view, there was absolutely no rational material for the authorities for initiating the proceedings for dislodging a democratically elected Municipality in the aforesaid manner. In view of the same, in my view, the impugned order cannot be sustained, as there is no material, by which the authority could have arrived at a subjective satisfaction for initiating the proceedings which can attract the provisions of Section 263 of the Act and on all these aforesaid grounds, the petition deserves to be allowed.
In the present case, it cannot be said that the authorities have no rational material. On the contrary, Page 36 of 46 Downloaded on : Fri Sep 09 20:57:57 IST 2022 C/SCA/12460/2022 CAV JUDGMENT DATED: 09/09/2022 from the reply received from the Nagarpalika, it clearly reveals that there is valid reasons to issue such show- cause notice and looking to the impugned order passed by the State Government, though brief, but while passing the impugned order, reasons are given by the State Government and therefore, this judgment will not be helpful to the present petitioner in the facts of the present case.
7.10 Moreover, the judgment dated 04.05.2022 of the Division Bench of this Court passed in Special Civil Application No. 7355 of 2022 which pertains to the following of principles of natural justice in quasi-judicial proceedings, is also not helpful to the present petitioner. The other two judgments cited by learned advocate for the petitioner as noted hereinabove are over-ruled and the judgment of the Hon'ble Supreme Court of India cited by learned advocate for the petitioner pertains to the decision of statutory or public authority, must be founded on the reasons stated in the order or borne out from the record and in the present case, it cannot be said that no reasons are given in the present order nor it can be said that the authorities have not considered Page 37 of 46 Downloaded on : Fri Sep 09 20:57:57 IST 2022 C/SCA/12460/2022 CAV JUDGMENT DATED: 09/09/2022 the record. On the contrary, the show-cause notice itself shows that the reports were received by the State Government from the Regional Commissioner of Municipalities and Commissioner of Municipalities dated 09.06.2022 and on that basis, the show-cause notice was issued. Moreover, the authorities have considered after giving opportunity of explanation by way of show-cause notice to the Nagarpalika and in turn, the Nagarpalika, after passing resolution dated 22.06.2022, has filed the reply to the show-cause notice dated 27.06.2022 and therefore it cannot be said that there is violation of principles of natural justice, nor it can be said that the decision is arrived at without any material available on the record.
8.1 Now considering the judgments which are cited by Ms. Shah, learned Government Pleader in the case of Anjar Municipality (supra), which pertains to scope and ambit of section 263 of the Act and considering Paras:
15 and 29 of the judgment, which reads as under, I am of the opinion that there is no illegality committed by the State Government while passing the impugned order.Page 38 of 46 Downloaded on : Fri Sep 09 20:57:57 IST 2022
C/SCA/12460/2022 CAV JUDGMENT DATED: 09/09/2022 "15. We are unable to uphold the said argument. Looking to the phraseology used in Art. 243U, it is clear to us that the said provision saves the power of competent Legislature of dissolution of a Municipality in accordance with law. It is clear from the language of Art. 243U which states that every Municipality shall continue for five years from the date appointed for its first meeting "unless sooner dissolved under any law for the time-being in force". It was no doubt contended that the expression "unless sooner dissolved under any law for the time-being in force"
would not apply to a Municipality which has come into power after the expiration of one year from the date of commencement of the Constitution (Seventy- fourth Amendment) Act, 1993 as mentioned in Art. 243ZF. In our considered opinion, however, the language of Art. 243U is clear and unambiguous, it applies to all municipalities. Art. 243ZF on the other hand, is a transitory provision for continuance of existing laws and Municipalities. It, therefore, cannot successfully be contended that the provisions of Art. 243U would not apply to the present case. The legal position, in our view, is that ordinarily a Municipality shall continue for five years from the date appointed for its first meeting, unless sooner dissolved "under any law for the time-being in force". Reading Art. 243U, it can be said that if a Municipality has come into existence in accordance with law, it must be allowed to complete its statutory term of five years, provided it is not subject to dissolution sooner under any law for the time-being in force. There is a further safeguard in the nature of Proviso to clause (1) of Art.Page 39 of 46 Downloaded on : Fri Sep 09 20:57:57 IST 2022
C/SCA/12460/2022 CAV JUDGMENT DATED: 09/09/2022 243U which enacts that before a Municipality is dissolved, it shall be afforded a reasonable opportunity of being heard. From the conjoint reading of Art. 243U of the Constitution and Sec. 263 of the Act, It is amply clear that normally every Municipality must be allowed to complete its term of five years. Sec. 263 of the Act, however, authorises the State Government to take an appropriate action of dissolution on the grounds mentioned therein. Before taking such action, a Municipality must be given a reasonable opportunity of being heard. A bald assertion by the learned Counsel for the petitioners that there should be no dissolution of Municipality notwithstanding misfeasance, nonfeasance, 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. Such a view, in our judgment, is neither favoured by the Legislature under Sec. 263 of the Act nor by Parliament under Art. 243U of the Constitution.
29. For the reasons recorded hereinabove, in our opinion, the provisions of Sec. 263 of the Act cannot be held ultra vires, unconstitutional or violative of Arts. 14, 19, 21 or 243U of the Constitution and the said challenge must fail. Since we are not entering into the correctness or otherwise of the allegations of the petitioners, we dismiss the petition by observing that it is open to the petitioners to take appropriate proceedings in accordance with law, if they are aggrieved by issuance of notice. We may state that as we have refused to decide that question, as and when such question is raised before an appropriate forum, it will be decided on its own merits, without being influenced in any manner by the observations made by Page 40 of 46 Downloaded on : Fri Sep 09 20:57:57 IST 2022 C/SCA/12460/2022 CAV JUDGMENT DATED: 09/09/2022 us here in above. The petition is accordingly dismissed. No costs."
8.2 Also perusing the judgment in the case of Varvabhai Nathabhai Rabari (supra), more particularly Para: 20, which pertains to financial irregularities of the Municipality, this Court finds that there is no arbitrariness committed by the State Government while passing the impugned order. Para: 20 of the said judgment reads as under:
"20. Considering the overall facts and circumstances of the case and in view of the observations made by us earlier, we find that the State Government had sufficient material on record to form an opinion that the market committee had made persistent defaults in performance of its duties and has committed financial irregularities which has resulted into huge financial loss to the market committee and when the learned single Judge of this Court has also upheld the legality and validity of the decision of the State Government of superseding the market committee, we do not find any case for interference. We are in agreement with the view expressed by the learned single Judge and accordingly we dismiss this appeal with costs which are quantified at Rs. 10,000/-."
8.3 In view of the judgment cited by Ms. Shah, learned Government Pleader in the case of Agriculture Produce Market Committee (supra), Para: 5 is relevant to Page 41 of 46 Downloaded on : Fri Sep 09 20:57:57 IST 2022 C/SCA/12460/2022 CAV JUDGMENT DATED: 09/09/2022 reproduced, which is as under :
"5. In Varvabhai Nathabhai Rabari & Ors. vs. State of Gujarat & Ors., 2003 (1) GLR 97 a Division Bench of this Court examined the scope of judicial review in a petition under Article 226 of the Constitution challenging the order of supersession of Agricultural Produce Market Committee under Section 46 of the Agricultural Produce Market Committee Act. After examining several decisions of the Apex Court and a decision of this Court and another decision of the Bombay High Court, the Division Bench laid down that in the matter of supersession of any elected body, the scope of judicial scrutiny and review under Article 226 of the Constitution is not that of exercising powers of Court of appeal, but is only restricted to procedural aspects on the point of principles of natural justice or in a case where the order is so perverse that no authority will form such an opinion on the basis of the record available with it.
The Apex Court in Joint Registrar of Cooperative Societies, Madras vs. P.S. Rajagopal Naidu & Govindarajulu & Ors., AIR 1970 SC 992 and a Division Bench of this Court in V.N. Rabari vs. State of Gujarat, 2003 (1) GLR 97, have held that the order of supersession against an elected local self government body is apparently to appoint a Special Officer in order to set the working of the public body right and where maladministration by an elected committee has so adversely affected the functioning of the public body, it is essential in the interest of the public body that temporarily the control of the affairs of the body is given to a neutral authority."Page 42 of 46 Downloaded on : Fri Sep 09 20:57:57 IST 2022
C/SCA/12460/2022 CAV JUDGMENT DATED: 09/09/2022 8.4 Ms. Shah, learned Government Pleader has also relied upon the judgment in the case of Maheshkumar Kantilal Dave (supra), Paras: 7, 11 and 13 which pertains to section 253 of the Panchayat Acts which is pari-materia to section 263 of the Gujarat Municipalities Act. She has further relied upon the judgment in the case of State of Gujarat V/s. Savitaben M. Makwana reported in 1998 (2) GLR 1593 and relied on the head notes (a) and (b) by relying on Para: 10, 14, 15, 17 and 18 and lastly she has relied upon the judgment of the Apex Court in the case of Jt. Registrar of Co-operative Societies, Madras V/s. P. S. Rajagopal Naidu reported in 1970 (1) SCC 753 which pertains to exercise of powers under Article 226 and where it is held that the High Court cannot act as Appellate Court and re-examine and re-appreciate the facts that led to making of order of Supersession of the co-operative society while exercising the jurisdiction. 8.5 Considering these peculiar facts and circumstances of the case, it would be fruitful to keep in mind the observations made by the Hon'ble Apex Court in the case of Mohd. Mustafa versus Union of India Page 43 of 46 Downloaded on : Fri Sep 09 20:57:57 IST 2022 C/SCA/12460/2022 CAV JUDGMENT DATED: 09/09/2022 reported in (2022) 1 SCC 294, more particularly Paras :
15 and 18 thereof, which read as under :
"15. Judicial review may be defined as a Court's power to review the actions of other branches or levels of government; especially the Court's power to invalidate legislative and executive actions as being unconstitutional. Power of judicial review is within the domain of the judiciary to determine the legality of administrative action and the validity of legislations and it aims to protect citizens from abuse and misuse of power by any branch of the State Minerva Mills Ltd. v. Union of India (1980) 3 SCC 625. The power of judicial review is a basic feature of the Constitution of India Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225. Judicial review has certain inherent limitations. However, it is suited more for adjudication of disputes other than for performing administrative functions. It is for the executive to administer law and the function of the judiciary is to ensure that the Government carries out its duties in accordance with the provisions of the Constitution S.R. Bommai v. Union of India (1994) 3 SCC 1.
18. Conditions prompted by extraneous or irrelevant considerations are unreasonable and liable to be set aside by Courts in exercise of its power under judicial review Ram Avtar Sharma v. State of Haryana (1985) 3 SCC 189 . (See: State of U.P. v. Raja Ram Jaiswal, (1985) 3 SCC 131, Sheonandan Paswan v. State of Bihar & Others, (1983) 1 SCC 438 Sant Raj v. O.P. Singla, (1985) 2 SCC 349 Padfield v. Minister of Agriculture, [1968] 1 All ER
694). A decision can be arrived at by an authority after considering all relevant factors, Sachidanand Pandey v.Page 44 of 46 Downloaded on : Fri Sep 09 20:57:57 IST 2022
C/SCA/12460/2022 CAV JUDGMENT DATED: 09/09/2022 State of WB, (1987) 2 SCC 295. If the discretionary power has been exercised in disregard of relevant consideration, the Court will normally hold the action bad in law H.W.R. Wade & C.F. Forsyth in the 10th Edition of Administrative Law (2009). Relevant, germane and valid considerations cannot be ignored or overlooked by an executive authority while taking a decision. It is trite law that Courts in exercise of power under judicial review do not interfere with selections made by expert bodies by reassessing comparative merits of the candidates. Interference with selections is restricted to decisions vitiated by bias, mala fides and contrary to statutory provisions. (See: Dalpat Abasaheb Solunke v. Dr. B.S. Mahajan, (1990) 1 SCC 305 Badrinath v. State of T.N., (2000) 8 SCC 395 National Institute of Mental Health and Neuro Sciences v. Dr. K. Kalyana Raman, 1992 Supp (2) SCC 481 Major General I. P. S Dewan v. Union of India, (1995) 3 SCC 383 Union Public Service Commission v. Hiranyalal Dev, (1988) 2 SCC 242 M. V. Thimmaiah v. UPSC, (2008) 2 SCC 119 and UPSC v. Sathiyapriya, (2018) 15 SCC 796)." 8.6 In view of the above mentioned discussion and also in view of the above cited judgments, I am in full agreement with the submissions made by learned Government Pleader that the State Government has validly exercised its powers under Section 263 of the Act after following due procedure under the law and decision is arrived after considering all relevant materials and the impugned order dated 30.06.2022 passed by the State Government dissolving the Botad Nagarpalika is not Page 45 of 46 Downloaded on : Fri Sep 09 20:57:57 IST 2022 C/SCA/12460/2022 CAV JUDGMENT DATED: 09/09/2022 found either perverse or arbitrary or by colorable exercise of powers or against the principles of natural justice. Therefore, I found that there is no valid grounds to interfere with the impugned order dated 30.06.2022 passed by the State Government by exercising my jurisdiction under section 226 of the Constitution of India. In view of this, I find that the present petition is meritless and requires to be dismissed.
9. For the reasons recorded above, the present petition is dismissed, with no order as to costs. Rule is discharged.
Sd/-
(SANDEEP N. BHATT,J) M.H. DAVE Page 46 of 46 Downloaded on : Fri Sep 09 20:57:57 IST 2022