Civil Appeal No 974 of 1975
Appeal by Special Leave from the Judgment and Order dated 25 6 1975 of the Gujarat High Court in Spl
Civil Appln
No 122374
DV Patel and SS Khanduja for the Appellant
885 UR Lalit PH Parekh and Miss Manju jatley for Respondent No 1
MN Shroff for Respondent No 2
The Judgment of the Court was delivered by GUPTA J
The appellant was elected a councillor of Anjar municipality in Kutch District sometime in 1972 and later President of the municipality
On June 30 1973 after he had been elected President the appellant applied to the chief officer of the municipality for allotting to him a plot of land admeasuring 18 feet x 16 feet situate in the town of Anjar
In his application the appellant stated that he wanted the plot for running a flour mill temporarily until he got a suitable plot from the Govern ment
By his order dated July 5 1973 the chief officer granted the request permitting the appellant to hold the land on payment of rent on condition inter alia that the land should be vacated whenever the municipality so or dered
The first respondent who is a resident of Anjar applied to the Collector of Kutch under section 38 of the Gujarat Municipalities Act 1963 referred to as the Act hereinafter for declaring that appellant s office has become vacant as he has disabled himself from continuing as a councillor by taking lease of the land from the munici pality
The Collector having heard the parties held that the appellant had got the land by misusing his position as President of the municipality incurring thereby the disqual ification referred to in section 381bi of the Act which disabled him from continuing to be a councillor and declared that his office had become vacant
The appellant before us preferred an appeal under section 384 of the Act to the State Government against the Collector s order
The State Government allowed the appeal and dismissed the application of the first respondent
It was held that the land was allotted to the appellant in accordance with the by laws of the municipality and that there was no evidence of the appellant exerting any influence on the chief offi cer
The first respondent challenged the order of the State Government by filing a writ petition in the Gujarat High Court
The learned Judge of the High Court who heard the petition allowed the same quashed the order of the State Government and restored the order made by the Collector
This appeal by special leave is directed against the judg ment of the High Court allowing the writ petition
The appeal turns on section 381bi of the Act which reads as follows 38
Disablilties from continuing as a councillor
1 If any councillor during the term for which he has been elected or nomi nated a x x x b acts as a councillor in any matter i in which he has directly or indirectly by himself or his partner any such share or interest as is described in clause i ii iii v or vii of sub section 886 3 of section 11 whatever may be the value of such share or interest or      he shall subject to the provisions of sub section 2 be disabled from continuing to be a councillor and his office shall become vacant
 The provisions of sub section 2 are not relevant for the present purpose
Section 11 of the Act enumerates inter alia the gener al disqualifications for becoming a council lor and specifies the cases to be treated as exceptions
Section 112c disqualifies a person from being a councillor who save as hereinafter provided has directly or indi rectly by himself or his partner any share or interest in any work done by order of a munic ipality or in any contract or employment with or under or on behalf of a municipality 
Sub section 3Ai of section 11 which con tains an exception to this rule provides 3 A person shall not be deemed to have incurred disqualification A under clause c of sub section 2 by reason of his i having any share or interest in any lease sale or purchase of any immovable property or in any agreement for the same Thus a person is disqualified from becoming a councillor if he has a direct or indirect interest in any contract with the municipality but having any share or interest in any lease of immovable property or in any agreement for the same is not a disqualification
Section 381b 1quoted above however provides that if any councillor during the term for which he has been elected acts as a councillor in acquiring a direct or indirect share or interest in any lease he shall be disabled from continuing to be a council lor
We have noted earlier that section 113Ai is an exception to
the general disquali fication under section 112 c section 381 b i appears to be an exception to that exception
This means that though having an inter est in any lease from municipality is not a disqualification for becoming or continuing as a councillor if the council lor acts as a councillor in getting such lease from the municipality he shall be disabled from continuing to be a councillor
The president of the municipality being a council lot this provision also applies to him
The ques tion therefore is whether the appellant in this case acted as a councillor in the matter of allotment of the land to him
Section 275 of the Act authorises the municipality to make bylaws not inconsistent with the Act
The Anjar municipality has framed by laws regulating the conditions on which permission may be given for the temporary occupa tion of public streets or land
An English translation of by law 4 of these by laws which are in Gujarati reads Permission will be given for the use of public road or land within the municipal limits but not of private land for temporary period for the matters mentioned in Schedule 1 hereto on advance payment of fee as stated in the Schedule
887 Any person who intends to occupy such land shall have to make a written application to the chief officer
But to give such permis sion or not shall be within the absolute discretion of the chief officer
 Schedule 1 mentioned here prescribes the fees payable by the applicant on such permission being granted
The chief officer in this case permitted the appellant to occupy the land in question in exercise of the power given to him by this by law
The High Court found that the appellant acted as a councillor and President of the municipality in having the plot allotted to him mainly upon the provisions of sections 49 and 45 of the Act
Section 49 defines the power and duties of the chief officer
Sub section 1a of sec tion 49 which is relevant in this context is as follows 49
Power and duties of chief officer 1 The chief officer shall a subject to the general control of the president watch over the financial and executive administration of the municipality and perform all the duties and exercise all the powers specifically imposed or conferred upon him by or delegated to him under this Act
 Section 45 enumerates the functions of the President one of the functions is to exercise supervision and control over the acts and proceedings of all officers and servants of the municipality in matters of executive administration
The High Court after referring to these provisions observed that the chief officer being under the general control of the president in all matters of executive administration must have felt himself bound to grant the appellant s applica tion
The High Court referred to an earlier application for the plot made by one Karan Kanji which the chief officer had rejected
There is also a finding that by law 4 did not permit the use of the plot for the purpose for which the appellant had applied and that the chief officer went out of his way to help his president
The High Court concluded that if the appellant had not been a councillor of the municipality and its president his application would have met with the same fate as Karan Kanji section The legality of the chief officer s order is not however an issue in this case and the question whether or not the intended use of the plot by the appellant was beyond the scope of by law 4 need not detain us
According to the High Court it was only because the appellant held the office of president of the municipality that the chief officer allowed his application
This may or may not be true but it is not a matter relevant to the real question that arises for consideration in this case
Section 381bi disables a councillor from continuing as such if he acts as a councillor in the matter of allotment of any land to himself there is no bar in the Act to a coun cillor getting a lease of the land from the municipality as would appear from section 113Ai
It is only in a case where he acts as a councillor in getting the lease that he is disqualified
There is nothing in the record of this case to show that the appellant had acted as a councillor to have the plot allotted to him 888 self Even if the chief officer was influenced by the fact that the applicant before him was president of the munici pality that would not attract section 381bi
It is true that section 45 confers a general power of supervision and control on the president over the acts of all officers of the municipality and section 49 which enumerates the power and duties of chief officer also makes him subject to the general control of the president in the discharge of these powers
But the general power of supervision con ferred on the president does not in our opinionimply that in every case where he applies for a lease which he is entitled to do as section 113A i indicates he should be deemed to have acted within the meaning of section 381b otherwise the president of a municipality under this Act by virtue of his office would be disentitled altogether from applying for permission to use any land of the municipality
If this were the correct position then there was no point in limiting the disqualification contemplated in section 381 b i to cases where the councillor acts as a councillor
The words acts as a councillor cannot be treated as redundant
In our view the councillor acts as a councillor within the meaning of section 381b when he performs any of the functions which under the Act he is required to perform
An allegation of misuse of his position against a councillor would not at tract the disability under section 381 bi unless it was shown furher that he has acted as a councillor in the matter
In view of the clear provision of section 381bi we do not find it possible to support the im pugned judgment
The appeal is therefore allowed and the judgment of the High Court reversing the decision of the State Government is set aside
In the circumstances of the case we make no order as to costs
PBR Appeal allowed


Summary:
Under section 381bi of the Gujarat Municipalities Act 1963 if a councillor
during the term for which he has been elected or nominated acts as a councillor in any matter in which he has directly or indirectly any share or interest he shall subject to the provisions of sub section 2 be disabled from continuing to be a councillor and his office shall become vacant
While functioning as President of a municipality the appellant obtained a plot of land within the municipality for running a mill
The Chief Officer who was the authority to grant such permission permitted the appellant to hold the plot on certain conditions
The High Court in writ petition by the respondent held that the appellant was disqualified from continuing President of the municipality
Allowing the appeal to this Court HELD 1 Section 381bi disables a councillor from continuing as such if he acts as a councillor in the matter of allotment of any land to himself there is no bar in the Act to a councillor getting a lease of the land from the municipality as would appear from section 113Ai
It is only in a case where he acts as a councillor in getting the lease that he is disqualified
There is nothing on the record to show that the appellant had acted as a councillor to have the plot allotted to himself
887 H 2 Whether or not the Chief Officer was influenced by the fact that the applicant before him was President of the municipality was not relevant to the question whether section 381bi was attracted
888 A 3 The general power of supervision conferred on the Presi dent does not imply that in every case where he applied for a lease which he is entitled to do as section 113Ai indi cates he should be deemed to have acted  within the mean ing of section 381bi otherwise the President of a munici pality under the Act by virtue of his office would be disentitled altogether from applying for permission to use any land of the municipality
If this were the correct position then there was no point in limiting the disqualifi cation contemplated in section 381bi to cases where the councillor acts as a councillor
The words acts as a councillor  cannot be treated as redundant
The councillor acts as a councillor within the meaning of section 381bi when he performs any of the functions which under the Act he is required to perform
An allegation of misuse of his position against a councillor would not attract the disabil ity unders
381bi unless it was shown further that he has acted as a councillor in the matter
888 B D