SCA/12275/2007 1/18 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 12275 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= CHINUBHAI KHODIDAS PATEL - Petitioner(s) Versus ELECTION OFFICER-MEHSANA NAGARPALIKA AND SPECIAL LAND & 10 - Respondent(s) ========================================================= Appearance : MR PRAKASH K JANI for Petitioner(s) : 1, MR MAULIK NANAVATI, AGP for Respondent(s) : 1, RULE NOT RECD BACK for Respondent(s) : 1, MR MEHUL SHARAD SHAH for Respondent(s) : 2, RULE SERVED for Respondent(s) : 3 - 11. ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL and HONOURABLE MR.JUSTICE AKIL KURESHI Date : 03/07/2008 SCA/12275/2007 2/18 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE JAYANT PATEL) 1. Leave to join Director of Municipality as party respondent No.12. Notice to the newly added party respondent. Mr.Nanavati, learned AGP waives notice for final hearing for the newly added party respondent No.12. 2. The short facts of the case appears to be that the petitioner was Chairman of the Town Planning Committee in Mehsana Nagarpalika/Municipality (hereinafter referred to as 'the Municipality'). The Resolution dated 15.12.1997 was passed by the Town Planning Committee which was presided by him as Chairman, for regularisation of the unauthorised construction made by one Girdharlal Patel by recovering the penalty of Rs.2,500/-. The Director of Municipality had issued notice to the petitioner together with the other members under Section 37 of the Gujarat Municipalities Act ('the Act' for short) for removal on the ground that the petitioner and other members have committed disgraceful conduct. In the said proceedings, ultimately, vide order dated 23.04.1999, the Director of SCA/12275/2007 3/18 JUDGMENT Municipalities observed that as the members are no more holding the office, the proceedings under Section 37 may not be required, but it was observed that on account of the aforesaid conduct, the Municipality has suffered loss of Rs.1,23,000/- and therefore, the same can be recovered from the Chairman and the members jointly and severally and for such purpose, he decided to initiate proceedings under Section 70 of the Act. It was also observed that as the aforesaid action was taken for personal benefit, the proceedings under Section 38 for disabling them to continue as member of the Municipality is also required to be taken into consideration by the Collector, Mehasana. He accordingly intimated to the Collector for such purpose. 3. It appears that thereafter, the proceedings were initiated by the District Collector, Mehasana, under Section 38 of the Act. Moreover, the order of the Director dated 23.04.1999, whereby he had recommended for initiation of the proceedings under Section 38 was challenged by the petitioner by preferring Special Civil Application No.5184/99 and in the said Special Civil Application, this Court SCA/12275/2007 4/18 JUDGMENT (Coram:M.S.Shah,J.), vide order dated 28.03.2000, observed that matter is at the show- cause notice stage so far as the initiation of the proceedings by the District Collector under Section 38 of the Act is concerned and further observed that vide order dated 23.04.1999, the proceedings under Section 70 are to be initiated and in both the proceedings, the petitioner will have the opportunity to raise all contentions and therefore, the Court did not interfere, but only observed that if any order is adverse to the petitioner, the same shall not be implemented for a period of 15 days. It also appears that the other members of the Town Planning Committee challenged the show-cause notice under Section 38 as well as the order passed by the Director dated 23.04.1999 by preferring Special Civil Application No.4286/99 and in the said petition, this Court (Coram:M.R.Calla, J.) vide order dated 21.06.1999, observed inter alia that as per the order dated 23.04.1999 of the Director of Municipality, the decision is only taken to start the proceedings under Section 70 of the Act and no final order has been issued under SCA/12275/2007 5/18 JUDGMENT Section 70 of the Act and therefore, the petition was not entertained. The said petitioners who were other member of the Town Planning Committee also carried the matter before the Letters Patent Appeal bench being Letters Patent Appeal No.919/99 against the decision of the learned Single Judge of this Court dated 21.06.1999, and the Division Bench (Coram:C.K.Thakkar, Actng. Chief Justice & K.M.Mehta,J.) vide order dated 22.09.1999, dismissed the Letters Patent Appeal by confirming the order of the learned Single Judge. The aforesaid litigation shows that as per the view expressed by this Court, both the proceedings under Section 38 as well as under Section 70 of the Act before the Collector or the Director of the Municipality, as the case may be, were at the initial stage and no final orders were passed by either of the authority. 4. It appears that on 10.12.1999, the petitioner submitted nomination form for deciding the election of Ward No.8 of the Municipality and vide order dated 15.12.1999, the Election Officer rejected the nomination form of the petitioner on the ground that there is already SCA/12275/2007 6/18 JUDGMENT an order of the Director of Municipality dated 23.04.1999 holding the petitioner as liable for the amount of Rs.1,23,000/- and as the said amount was not deposited/paid, the same attracts the disability under Section 11(2)(b) of the Act. It appears that the petitioner challenged the said decision by preferring Special Civil Application No.10123 of 1999, but the same was not entertained as the alternative remedy was available to the petitioner. Thereafter, the election was held of the Municipality and the result was declared on 4.1.2000. 5. The petitioner thereafter preferred Election Petition under Section 14 of the Act being Election Petition No.8 of 2000 before the District Court, Mehsana. Pending the petition, the next election of the Municipality was to be held in the year 2005 and, therefore, the petitioner, apprehending that his nomination form might be rejected, preferred Application Ex.92 before the learned District Judge, praying that the order of the Director of Municipality dated 23.4.1999 be stayed. The learned District Judge, vide order dated 22.11.2005, observed SCA/12275/2007 7/18 JUDGMENT that if the petitioner deposits the amount of Rs.1,23,000/- in the Court, the Returning Officer shall not reject the nomination paper. The petitioner thereafter deposited the said amount and the amount was also invested by the Court. As the order was passed by the District Court, the nomination form of the petitioner was not rejected and the petitioner contested the election, but he lost at the election. Thereafter, it appears that the learned District Judge tried the election petition and ultimately found that the decision of the rejection of nomination form was proper as the requirement under Section 11(2)(b) of the Act was satisfied and, therefore, he held that the decision was legal. So far as the amount of Rs.1,23,000/-, it was ordered to be paid to the Municipality with interest after the expiry of the period of appeal. It is under these circumstances, the present petition before this Court. 6. We have heard Mr.Jani, learned Counsel appearing for the petitioner, Mr.Mehul Shah, learned Counsel respondent No.2 and Mr.Nanavati, learned SCA/12275/2007 8/18 JUDGMENT AGP appearing for respondent No.1 and newly added respondent No.12. The other respondents are served, but nobody has appeared on their behalf. 7. Section 11(2)(b) reads as under:- “Section 11(2) No person - (a) xxx (b) who fails to pay any arrears of any kind due by him to the Municipality (otherwise than as a trustee) within three months after a special notice in accordance with the rules made by the State Government in this behalf has been served upon him, or” The aforesaid provision shows that if the person fails to pay any arrears due by him to the Municipality within three months from the receipt of the special notice, he may incur the disqualification to become Counselor of the Municipality. It is an admitted position that no special notice has been served upon the petitioner by the Municipality for any arrears. Therefore, interpreting the aforesaid section SCA/12275/2007 9/18 JUDGMENT strictly may result into the consequence that in absence of any special notice having been served upon the petitioner, no disqualification was incurred. Therefore, the decision of the Election Officer of rejecting the nomination paper could said as illegal. 8. However, it appears that the learned District Judge has tried to give expanded meaning on the aspects of failure to pay the arrears of the amount due as determined by the Director of Municipality under Section 70 of the Act. Had it been a case where there was final decision by the Director of Municipality under Section 70 of the Act for fastening of the financial liability and non-payment thereof by the petitioner, it might stand on a different consideration. However, it appears that even in respect of proceedings under Section 70 of the Act, the matter was at the prima facie stage inasmuch as the Director of Municipality prima facie observed that on account of the conduct on the part of the petitioner and other Councilor(s), financial loss is caused to the Municipality of SCA/12275/2007 10/18 JUDGMENT Rs.1,23,000/- and for such purpose, the proceedings are required to be initiated under Section 70 of the Act. The aforesaid aspect is apparent from the perusal of the order dated 23.4.1999 passed by the Director of Municipality. The same is coupled with the circumstances that when based on the order dated 23.4.1999, the proceedings were undertaken under Section 38 of the Act by the District Collector, such action as well as the order dated 23.4.1999 came to be challenged by the petitioner and other Councilor in the above referred petition being Special Civil Application No.5184 of 1999 and Special Civil Application No.4286 of 1999 as well as the LPA arising therefrom and the learned Single Judge as well as Division Bench of this Court having considered the matter, observed to the extent that the matter is at the notice stage and no final decision is rendered under Section 70 of the Act. Therefore, if the matter was at the stage of decision to initiate the proceedings under Section 70 of the Act by the Director of Municipality and thereafter the SCA/12275/2007 11/18 JUDGMENT proceedings were not concluded under Section 70 of the Act by fastening of the financial liability upon the petitioner or other members concerned after undergoing the procedure as required under the law, it could not be concluded by the learned District Judge that the amount of Rs.1,23,000/- had become due on the date when the nomination form of the petitioner was rejected by the election officer. Therefore, it appears to us that the learned District Judge has committed error apparent on the record to that extent. 9. In normal circumstances, if the decision of the election officer to reject of nomination form is found as illegal, it may be required for the Court to further examine as to whether such decision has materially altered the result of the election. It appears that there is no discussion in the judgement of the Election Tribunal i.e. District Court, nor even any evidence is produced on record of the present petition, which may go to show that had the nomination form not been rejected, it would be SCA/12275/2007 12/18 JUDGMENT materially altered the result of the election. Therefore, we find that as such the matter could be restricted to the extent of examining the legality and validity of the order of the election officer for rejecting the nomination form only. 10.The further consequence in normal circumstances may accrue to the extent of getting the amount of Rs.1,23,000/- in favour of the petitioner, if the election petition deserves to be allowed on account of the illegal exercise of the power by the election officer for rejection of the nomination form. However, the peculiar circumstances which arise in the present proceedings are that the jurisdiction of the Election Tribunal as such was related to examining the legality and validity of the action of the Election Officer for rejection of the nomination paper of the petitioner for the election, which was held in the year 2000 and at the most can be concerning to altering the result of the election, which was held on 4.1.2000. The question of acceptance or non- SCA/12275/2007 13/18 JUDGMENT acceptance of nomination form of the petitioner for the subsequent election, which was to be held in the year 2005 was beyond the scope of the election petition. But it appears that the petitioner, by submitting the application Ex.92, invoked the jurisdiction of the learned District Judge/Election Tribunal on the subject, which can be said as outside the scope and ambit of the power. Had the Election Tribunal rejected the application Ex.92 on the ground that it had no jurisdiction, the matter could be considered differently, but in the present case, the Tribunal did exercise the power and granted stay against the rejection of the nomination form on the condition that the petitioner deposits the amount of Rs.1,23,000/-. The petitioner accepted the jurisdiction of the Tribunal and further accepted the order of the Tribunal by depositing the amount so as to enjoy the benefit of the interim order passed by the Tribunal. Not only that but in view of the order passed by the Tribunal, the nomination form of the petitioner was not rejected and the same enabled SCA/12275/2007 14/18 JUDGMENT the petitioner to contest the election of the Municipality, which was held in the year 2005. The fact that the petitioner lost at the election, hardly matters, but the aspects that the petitioner having invoked the jurisdiction and having enjoyed the benefit of the interim order upon depositing the amount of Rs.1,23,000/-, may have relevance for this Court while exercising the discretion for modulating the relief, keeping in view the larger public interest, including the principle involved for accountability of the office-bearers holding public post. 11.It appears that there was no reason whatsoever, after the order dated 23.4.1999, proceedings initiated thereafter, including the writ petition and the LPA as referred to herein above, for the authorities, including the Director of Municipality, to just sit over it and not to initiate any proceedings further. 12.Mr.Nanavati, learned AGP, during the course of the hearing, submitted that on account of the pendency of the proceedings before the Election SCA/12275/2007 15/18 JUDGMENT Tribunal, may be the office of the Director of Municipality did not take any action. 13.Be that as it may, the fact remains that after the order dated 23.4.1999 read with the subsequent proceedings of writ petition before this Court as well as LPA, no action has been taken by the Director of Municipality, who is the competent authority under Section 70 of the Act for initiation of the proceedings. 14.If the petitioner is permitted to get back the amount of Rs.1,23,000/-, which was deposited for enjoying the interim injunction granted by the Election Tribunal and thereafter if the proceedings under Section 70 are initiated and/or concluded in either way, it may result into creating irreversible situation. Further, keeping in view the aspects that the matter is in the realm of accountability of the persons holding public post, it was required for the Director of Municipality to consider the seriousness of the matter. We find that on the aspects of refund, having taken into consideration the aforesaid peculiar facts and SCA/12275/2007 16/18 JUDGMENT circumstances, the appropriate directions deserve to be issued, so as to enable the authority to initiate proceedings under Section 70 of the Act, if it is so desirous, otherwise in absence thereof, the consequence of refund may accrue to the petitioner. 15.In view of the aforesaid the judgement of the Election Tribunal/Additional District Judge, Mehsana in Election Petition No.8 of 2000 is quashed and set aside with the declaration that the decision of the Election Officer of rejecting the nomination paper of the petitiner was illegal. However, it is directed that respondent No.12, Director of Municipality shall take appropriate decision for initiation of proceedings under Section 70 of the Act or otherwise, in furtherance to the order dated 23.4.1999 passed by him, copy whereof is produced at Annexure “C” in the compilation of the present petition, within a period of three months from the date of receipt of the order of this Court. It is further observed that if the decision is taken by the Director of SCA/12275/2007 17/18 JUDGMENT Municipality to initiate proceedings under Section 70 of the Act, the same shall be concluded as early as possible, preferably within a period of four months from the service of the notice for initiation of the proceedings upon the petitioner and the other Councilors, as the case may be. 16.In the event no decision is taken by the Director of Municipality within a period of three months from the date of receipt of the order of this Court for initiation of proceedings under Section 70 of the Act, the petitioner shall be entitled to refund of the amount of Rs.1,23,000/- with interest as it might have accrued. But if the proceedings are initiated by the Director of Municipality within the aforesaid period of three months from the date of receipt of the order of this Court, the amount shall not be refunded, but shall be used for appropriation or refund, as the case may be, as per the ultimate outcome or the conclusion of the proceedings under Section 70 of the Act as referred to herein above. SCA/12275/2007 18/18 JUDGMENT 17.The petition is partly allowed to the aforesaid extent. Rule made absolutely accordingly. Considering the facts and circumstances, no order as to costs. (Jayant Patel, J.) 03.07.2008 (Akil Kureshi, J.) vinod