SCA/8736/2008 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8736 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ===================================================== 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 ? ===================================================== RANCHHODBHAI JASMATBHAI KOYANI - Petitioner(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ===================================================== Appearance : MR PREMAL R JOSHI for Petitioner(s) : 1, MR UMANG OZA ASSISTANT GOVERNMENT PLEADER for Respondent(s) : 1, NOTICE SERVED for Respondent(s) : 1 - 2. NOTICE SERVED BY DS for Respondent(s) : 1 - 2. ===================================================== CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 25/09/2008 SCA/8736/2008 2/7 JUDGMENT ORAL JUDGMENT 1. Draft amendment is allowed. 2. RULE. Mr. Oza, learned Assistant Government Pleader waives notice of Rule. With the consent of the learned counsel appearing for both the sides, the matter is heard. 3. The short facts of the case appear to be that in respect of certain alleged irregularity and illegality, two notices were issued : one was for proceedings under Section 70 of the Act of the Gujarat Municipalities Act (hereinafter referred to as the Act) for fastening the financial liabilities and another was for removal as a member of the Municipality under Section 37 of the Act. It appears that as per the petitioner, the reply was submitted to the notice under Section 37 of the Act, but so far as proceedings under Section 70 of the Act is concerned, at the stage when opportunity to cross- examine the witness was not given, the petitioner preferred Special Civil Application No.4437 of 2008 SCA/8736/2008 3/7 JUDGMENT before this Court, which was ultimately dismissed. However, the mater was carried in the Letters Patent Appeal being Letters Patent Appeal No.323 of 2008. The Division Bench of this Court in the said Letters Patent Appeal vide order dated 8.4.2008 issued notice and by interim direction, it was ordered as under: “Till then, final order of disqualification shall not be passed.” 4. It appears that thereafter, in the proceedings under Section 37 of the Act, as per the respondent Authorities, the opportunity of hearing was given, whereas the case of the petitioner is that the opportunity of hearing was not given to the advocate when he had remained present. Be that as it may, the order dated 31.5.2008 was passed by the respondent No.3 in the proceedings under Section 37 of the Act, whereby the petitioner is removed as a member of the municipality on account of alleged misconduct. It is under these circumstances, the petitioner has approached this Court by preferring present petition for challenging the order passed under Section 37 of the Act by the respondent No.2. SCA/8736/2008 4/7 JUDGMENT 5. It further appears that aforesaid Letters Patent Appeal has been finally heard by the Division Bench of this Court on 25.8.2008 and so far as the order passed under section 37 for disqualification is concerned, it has been observed by the Division Bench inter alia in para 8 as under: “In the above facts and circumstances and also in view of the above statements made on behalf the respondents by learned A.G.P., it appears that the question of law raised by the appellant as to whether the statements recorded in the proceedings against the appellant were required to be subjected to cross-examination is not required to be decided at this stage as it cannot be presumed that such statements would be relied upon or would be made the basis of an order which may be finally made by the authorities, causing prejudice to the appellant. Besides that, the real controversy between the parties appears to SCA/8736/2008 5/7 JUDGMENT be revolving around fixing of responsibility for the alleged excess payment, which is factually not in dispute. We, however, take serious note of the fact that even during the pendency of the present appeal and despite the ad-interim relief continuing to operate, the order dated 31.05.2008 resulting into disqualification of the appellant was made by the respondents. We refrain from making any further observations since that order is the subject matter of another petition, which is pending.” (Emphasis supplied) 6. This Court would have considered the matter about propriety of the order passed by the respondent NO.2 on the face of the order of the Division Bench of this Court, however, at that stage, Mr. Oza, learned Assistant Government Pleader under the instruction of concerned officer, declared before this Court that as such the interim order passed by the Division Bench of this Court in the aforesaid Letters Patent Appeal was not brought to the notice SCA/8736/2008 6/7 JUDGMENT of the Director by the petitioner and therefore, the respondent No.2, Director proceeded for further hearing the matter in bonafide, however, as now it is undisputed position that the injunction was already in operation of the Division Bench of this Court in the aforesaid Letters Patent Appeal against the proceedings of disqualification, the respondent No.2 will give opportunity of hearing to the petitioner and fresh order shall be passed in accordance with law. 7. In the above view of the matter, as there is an agreement on the part of the respondent No.2 to pass fresh order, the order which is impugned in the present petition would not survive. Consequence would be that the proceedings under Section 37 of the Act shall stand restore to the Director of Municipality for further action in accordance with law. 8. In the result, following directions : 1. The impugned order dated 31.5.2008 shall not survive in view of the declaration made on record herein above. As a consequence SCA/8736/2008 7/7 JUDGMENT thereof, the proceedings under Section 37 of the Act against the petitioner shall stand restore before the Director of Municipality, respondent No.2 herein. 2. The respondent No.2 herein shall give an opportunity of hearing to the petitioner and shall pass fresh order in accordance with law, preferably within a period of 3 months from the receipt of the order of this Court. 10. The petition is allowed to the aforesaid extent. Rule is made absolute accordingly with no order as to costs. (JAYANT PATEL,J.) ynvyas