IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1289 of 2002 With SPECIAL CIVIL APPLICATION NO. 1290 OF 2002 With SPECIAL CIVIL APPLICATION NO. 1291 OF 2002 For Approval and Signature: Hon'ble MR.JUSTICE KUNDAN SINGH ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- GIRISHBHAI MAGANLAL KOTECHA VICE PRESIDENT & COUNCILLOR Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 1289 of 2002 MR Yatin Oza, Senior Advocate with TUSHAR MEHTA for the Petitioner. Mr. S.N.Shelat, Advocate General with Mr. L.B. Dabhi, ASSTT. GOVERNMENT PLEADER for Respondents No. 1-3 NOTICE SERVED BY DS for Respondents No. 4-5,7-8 MR P.M.Raval, Senior Advocate with PS CHAMPANERI for Respondent No. 6 2. Special Civil Appliication No. 1290 of 2002 Mr. G.M.Joshi, advocate for the petitioner. Mr. S.N.Shelat, Advocate General with Mr. L.B.Dabhi, Assistant Government Pleader for respondent nos. 1-3. Notice served by DS for respondent nos. 4,5,7,8. Mr. P.M.Raval, Senior advocate with Mr. P.S.Champaneri for respondent no. 6. 3. Special Civil Application No. 1291 of 2002 Mr. Nirupam D.Nanavati, Senior Advocate with Mr. Hriday Buch for the petitioner. Mr. S.N.Shelat, Advocate Generalo with Mr. L.B.Dabhi, Assistant Government Pleader for respondent nos. 1-3. Notice served by D.S. for respondent nos. 4,5,7,8. Mr. P.M.Raval, Senior advocate with Mr. P.S.Champaneri for respondent no. 6. -------------------------------------------------------------- CORAM : MR.JUSTICE KUNDAN SINGH Date of decision: 22/03/2002 ORAL COMMON CAV JUDGEMENT The common order passed by the State Government dated 24.1.2002 passed in Revision Application NO. 17 of 2001 has been challenged in these three petitions and hence they are being disposed of this common judgment. 2. Special Civil Application No. 1289 of 2002 has been filed by Girishbhai Maganlal Kotecha against President and councillor of Junagadh municipality and against statutory authorities stated above and Smt. Artiben Joshi, Smt. Shehnazben Ibrahimbhai Qureshi, Shri Anilbhai Pravinchandra Udani and Smt. Jayaben Nanabhai Rathod. Special Civil Application no.1290 of 2002 has been filed by Jayaben Nanabhai Rathod against the authorities stated above and Girishbhai Maganbhai Kotecha, Smt. Artiben Joshi, Smt. Shehnajbhai Ibrahimbhai Qureshi and Shri Anilbhai Pravinchandra Udhani. The third petition being Special Civil Application No. 1291 of 2002 has been filed by Smt. Artiben Joshi, President of Junagadh Municipality against Girishbhai Maganlal Kotecha, Smt. Shehnajbhai Irabhimbhai Qureshi, Anilbhai Pravinchandra Udhani and Smt. Jayaben Nanabhai Rathod. 3. There are 42 councillors in the Junagadh Municipality. For passing the motion of no confidence, 2/3rd majority i.e. 28 votes are required. In the extraordinary meeting convened on 20th September, 2000, the motion of no confidence was moved against Smt. Shehnajbai Ibrahimbhai Qureshi. 29 members voted in favour of the resolution passing motion of no confidence, whereas 3 members voted against the resolution. Smt. Shehnajbai Ibrahimbhai Qureshi filed a writ petition being Special Civil Application no. 10072 of 2000 in this Court. This Court vide its order dated 22nd September, 2000 dismissed the petition in limine holding that the questions of facts raised by rival parties could not be decided by this Court in a writ jurisdiction. Being aggrieved by the said order of the learned Single Judge, Smt. Shehnajbai Ibrahimbhai Qureshi filed L.P.A. No. 659 of 2000 which came to be dismissed on 18.10.2000. Therafter. Smt. Qureshi and Anilbhai Udhani initiated proceedings under section 258 of the Gujarat Municipalities Act, 1963. (hereinafter referred to as the "Act") and the opponents filed objections. The Collector vide his order dated 2.11.2000 rejected both the application dated 22.9.2000 and objections dated 29.9.2000 for the stay of the resolution no. 246 passed in the special general meeting of the Municipality on 20th September, 2000 and the show cause notice issued to Smt. Artiben Joshi which was withdrawn holding that an inquiry contemplated under section 258(1) of the Act is required to be made of a formal nature and with a limited scope. There is no procedure of examining witnesses and cross-examining them, documentary evidence and objections and to hear the parties as provided in the Civil Procedure Code. According to the Collector, such type of inquiry does not fall within the jurisdiction of the Collector under section 258 of the Act and that can be done only in the Civil Court as it was stated before the Collector that two members were not present at the relevant time when the resolution was passed; they were outside and their forged signatures were made on the scroll. While on the other side, it was contended that both the persons were present and they have signed the resolution and they have also filed their affidavits in support of their pleas. Against the order of the Collector, Smt. Qureshi preferred a petition being Special Civil Application no. 11260 of 2000 in this Court when the proceedings under section 258 of the Act were pending, challenging that action of the Collector in not granting interim orders in the appeal. After the order of the Collector having been passed, they preferred a Revision Application under section 264 of the Act before the State Government, i.e. Deputy Secretary, Urban Development and Urban Housing Department. Smt. Artiben Joshi also preferred a petition being Special Civil Application no. 3349 of 2001 in this Court praying for a declaration that the proceedings under section 264 of the Act are not maintainable and prayed for restraining the respondents from proceeding further with the matter. This Court dismissed the Special Civil Application no. 3349 of 2001 by its order dated 3.11.2001 making observation that the issue can be raised before the State Government. Being aggrieved by the said order of the learned Single Judge, Smt. Artiben Joshi preferred L.P.A.No. 1565 of 2001. The Division Bench of this Court rejected the prayer for interim relief as the matter was listed for deciding preliminary issue before the State Government on the next date. However, the application for joining party was allowed. The learned counsel for both the sides submitted detailed submissions before the Deputy Secretary, who vide his order dated 24th January, 2001 held that he has jurisdiction to entertain the Revision Application under section 264 of the Act. The Division Bench of this Court vide its order dated 4.2.2000 decided L.P.A. No. 37 of 2002 and 45 of 2002 as disposed of and L.P.A. No. 1565 of 2001 as infructuous. Therefore, the order dated 24.1.2002 passed by the Deputy Secretary, Urban Development and Urban Housing Department holding that he has jurisdiction to decide the matter, is under challenge in these petitions. 4. Heard the learned counsel for the parties at length. In the present case, the controversy centres around whether some resolution passed by the Municipality in connection with motion of no confidence is susbject to control and authority of the State Government under the guise of general administration under section 264 of the Gujarat Municipalities Act ? 5. The first contention of the learned counsel for the petitioners is that the Panchayats and Municipalities have been given constitutional statues and they have been made institutions of self government by the Constitution. (73rd Amemdment Act of 1993) and Constitution (74th Amendment Act), 1992 in part IX and IX-A of the Constitution respectively with the object to make them govern themselves independently with no interference by the State authorities. As such, no interference or control is contemplated by the State or State authorities. Even if it is assumed that the State and Collector have authority or control over the municipalities under section 264 of the Act, they have only power to control the matters of the general administration and revenue administration. When any order or resolution is passed lawfully by the municipality, the State Government or Collector has no power to control or interfere with. The powers of the Collector under section 258 are very limited in orders or resolutions of the municipality if such order or resolution of the municipality is against public tranquility and/or annoyance or is unlawful. "Unlawful" means which is contrary to law, unauthorised by law, prohibited by law, irregular or against rules. An arbitrary and malafide order may be illegal, but not "unlawful". If the procedure has been followed, then it cannot be said to be unlawful. The Collector held that he has no jurisdiction to hold a regular inquiry. The State Government can resort the authority or control under section 264 of the Act. The record was forged in connivance with the Chief Officer. The question whether the signatures of two members are genuine or forged can be inquired and examined by an appropriate authority or Court after examining and cross-examining the witnesses, which cannot be done by the Collector. The resolution is lawlful. According to them, the question of fact regarding forgery cannot be examined by this Court in a writ jurisdiction as held by this Court by its order dated 22nd September, 2000 rendered in earlier writ petition being Special Civil Application no. 10072 of 2000 which has been confirmed on 18.10.2000 in L.P.A. NO. 659 of 2000. If some resolution is passed by any municipality in a legal manner or as per the procedure prescribed therefor, the Collector has no power under section 258 of the Act to interfere with the same. In the present case, the no confidence motion was passed by requisite majority against Smt. Qureshi. The Collector has no power to interfere under section 258 of the Act with any such resolution lawfully passed, in fact, the Collector has not interfered with and the State Government has no power of control under section 264 of the Act in any resolution lawfully passed by the municipality. An appeal has been provided to the State Government only for the municipality under section 258 (2) of the Act against the order of the Collector. No appeal is provided to any person even affected or not affected, to the State Government against the order passed by the Collector under section 258(1) of the Act. Even in the present case, Smt. Qureshi filed an appeal before the Collector against the resolution passed by the Municipality. The Collector held that no regular inquiry is contemplated for scrutinising the resolution by examining or cross-examining the witnesses. While rejecting the appeal, the Collector has found as under : "On the above facts, taking into consideration the submissions of both the parties, perusing the documents/record and minutely going through the record, I am satisfied that the no confidence motion passed on 20.9.2000 against the Incharge President, Junagadh Nagarpalika is passed by 2/3rd majority and the same is legal and therefore, the application of the applicants in this case under section 258(1) of the Gujarat Municipalities Act, 19663 is rejected." 6. The next contention of the learned counsel for the petitioners is that Smt. Qureshi filed a Revision Application before the State Government. The Legislature has not provided any provision of appeal against an order of Collector under section 258(1) of the Act except to a Municipality under section 258(2) of the Act. Even if it is assumed that the State Government has power to control under section 264 of the Act, then also, that power can be exercised on the report of the Collector with statement submitted under section 258(3) of the Act or suo motu and but not at the instance of a third party. According to him, therefore, that Revision Application is not maintainable in the eye of law and the State Government has no power to exercise revisional jurisdiction at the instance of Mrs. Qureshi under section 264 of the Act inasmuch as both the Acts i.e. Gujarat Panchayats Act and Gujarat Municipalities Act have been enacted by the State Legislature. Section 259 of the Gujarat Panchayats Act provides for a Revision Application and revisional jurisdiction is provided to State Government under section 211 of the Bombay Land Revenue Code after appeal under sections 203 and 209, and under section 76 of the Bombay Tenancy and Agricultural Lands Act after appeal under sections 74 and 75 is provided, however, the power of control over general administration is provided under section 86 of the Bombay Tenancy and Agricultural Lands Act, but that power of revision of the State Government is missing in the Act. Right of appeal or revision is acreature of statute which cannot be contemplated by assumption or interpretation. If remedy of Revision is available in the statute, that can be available, if not available, then that cannot be availed of in law. But certainly that remedy is not available cannot be created by an interpretation, more particularly when the Legislature has not provided any source for exercise of revisional jurisdiction to the State Government. As such, if the powers of appeal or revision are specially provided, then revisional jurisdiction can be exercised by the State Government. Revisional authority or power cannot be exercised by the State Government under the word "control" as envisaged under section 264 of the Act. If the Collector is not functioning in legal manner in respect of general administration of a municipality, under section 264 of the Act, the State Government can direct the Collector to function in a particular manner in accordance with law, but under section 264 of the Act, the State Government will not exercise the revisional jurisdiction under section 264 of the Act, "control" means supervisory or superintendence power in respect of general and revenue administration and the Collector can be directed by the State Government for doing or not doing anything in a manner prescribed under the Act, but the Collector's order is not revisable by the State Government under section 264 of the Act. Purposive jurisdiction is not contemplated to entertain appeal or revision against the order of the Collector, passed under section 264 of the Act. 7. The further contention of the learned counsel for the petitioners is that the question whether two councillors were present in no confidence motion passed or forged entries were made regarding their presence in the municipal record can be examined in a regular inquiry after giving an opportunity of leading documentary as well as oral evidence of witnesses who can be examined and cross-examined by the parties. Findings on such questions of fact cannot be recorded on the basis of prima facie material or on the basis of preliminary inquiry, but the Collector has held otherwise. In the present case, the powers of Collector under section 258(1) are quasi judicial powers and thus the Collector has committed an error on the face of the record. "Control" means administrative or disciplinary action in the quasi judicial or judicial power of adjudication which does not come within the word "control". The orders passed under quasi judicial or judicial powers cannot be revised or reviewed under the powers of control by the State Government under section 264 of the Act. He further submitted that under section 258(3) of the Act, the Collector is required to send a report alongwith the statements to the State Government. The State Government can direct the Collector to correct the orders passed under section 258(1) of the Act even if it is assumed to be an administrative order. 8. On the contrary, the learned Advocate General contended that the construction should be a purposive construction if there is no provision for revision in the enactment. Hence, under section 264 of the Act, provision of revision should be inferred by way of purposive construction. He relied on a quotation of Lord Diplock referred in XXIX(2) GLR, 1048 which reads as under: " I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purpose of the Act. But in doing so the task on which a court of justice is engaged remains one of constructions even where this involves reading into Act words which are not expressly included in it." Secondly, the Court will not interfere where statute provides remedy. It is also argued by him that the doctrine of "incorporation" is applicable by reference if there is no provision in the Act for revisional jurisdiction of the State Government. The Act provides a right to interfere in the administrative order. The order passed by the Collector is an administrative order. Hence, under section 264 of the Act, the State Government has a right and authority to control and interfere in the administrative order passed by the Collector. It is an order of administrative nature and not of quasi judicial nature. The Full Bench of this Court in the case of Parshottambhai G.Chavda vs. State of Gujarat and others reported in 39(2) G.L.R.,1048 has held that the order passed by the Collector under section 258(3) of the Act is an administrative order. Section 258(1) of the Act empowers the Collectors to suspend a resolution which is not in conformity with law and direct the resolution of restroration of status quo ante. Whether resolution passed by the Municipality is lawful or not is a question for the exercise of powers by the State Government under section 264 of the Act. It is also contended that in all matters connected with the Municipalities Act, the State Government shall exercise the same authority and control over the Collector and other subordinates under section 264 of the Act. The Collector is required to report the matter to the State Government under section 258(2) of the Act, purpose of it to the State Government is to check and correct it in accordance with law and the State Government can exercise such powers under section 264 of the Act suo motu or at the instance of a third party. In this regard, he relied on certain provisions of Cinematograph Act, 1918 wherein the Collector is a licencing authority and powers of the Collector under section 5(3) of the Act is subject to the control of the State Government. Thus, the State Government has power to control. He relied on the decision of the Allahabad High Court in the case of Bharat Bhusan vs. Cinema and City Magistrate and another reported in AIR 1956, Allahabad, 99 in which the Court has considered the scope of the word " control" and has held that the word "control" is not confined to mere regulation. It is more comprehensive and includes domination or command over an inferior. No doubt the State Government can lay down general rules or instructions for the guidance of the District Magistrate in the exercise of his discretion. But the "control" envisaged in the section is not confined to the issuing of mere general directions; it includes an interference on the part of the State Government with the individual decision of a particular case by the District Magistrate. It is also contended by the learned Advocate General that the control of the State Government under section 264 of the Act is the same control exercised by the State Government under sections 5(2) and 5(3) of the Cinematograph Act. The Municipal Commissioner has power to interfere with the suspension of an employee of the municipality. The control of the State Government includes disciplinary jurisdiction. If it is an administrative order passed by the Collector, the State Government can reverse under the power of control under section 264 of the Act. Under section 264 of the Act, the State Government is empowered for having general power of administrative and supervisory control over the Collector. That control is not a quasi judicial and that is only an administrative as in the same manner, the Collector has power to control over his subordinate officers. In case any officer is failing to discharge his duties, under section 81, the State Government can direct the Collector or subordinate officer for doing so. The Supreme Court in the case of Radeshyam Khare and another vs. The State of Madhya Pradesh and others, reported in AIR 1959, SC, 107, has held that the State Government can take action empowered under the provisions of the Act. Regarding doctrine of incorporation, the learned Advocate General has relied on the decision of the Supreme Court in the case of Bajya vs. Smt. Gopikabai and another reported in AIR 1978, SC, 793. The observations made by the Supreme Court are reproduced hereinbelow: "27. Broadly speaking, legislation by referential incorporation falls in two categories; First where a statute by specific reference incorporates the provisions of another statute as of the time of adoption. Second, where a statute incorporates by general reference the law concerning a particular subject, as a genus. In the case of the former, the subsequent amendments made in the referred statute cannot automatically be read into the adopting statute. In the case of latter category, it may be presumed that the legislative intent was to include all the subsequent amendments also, made from time to time in the generic law on the subject adopted by general reference. This principle of construction of a reference statute has been neatly summed up by Sutherland, thus : "A statute which refers to the law of a subject generally adopts the law on the subject as of the time the law is invoked. This will include all the amendments and modifications of the law subsequent to the time the reference statute was enacted." (Vide Sutherland's Statutory Construction, Third Edication, Art. 5208, p 5208). Corpus Juris Secundum also enunciates the same principle in these terms: "...Where the reference in an adopting statute is to the law generally which governs the particular subject and not to any specific statute or part thereof...the reference will be held to include the law as it stands at the time it is sought to be applied, with all the changes made from time to time, at least as far as the changes are consistent with the purpose of the adopting statute." 9. This Court in the case of H.H.Parmar vs. Collector, Rajkot and another reported in 1979(2) GLR, 97, it has been held that the scheme of sub-section (1) of section 258 of the Gujarat Municipalities Act is that public interest is the sole consideration while deciding whether the execution of any order or resolution of a municipality should be suspended or whether any action which it is taking or is about to take should be prohibited irrespective of whether it is lawful or unlawful and that considerations of public interest override even the lawful character of the order, resolution or action of the Municipality. Whereas the power of the Collector under sub-section (1) of section 258 extends to the execution of any order or resolution by a municipality-lawful or unlawful-or to any action which the municipality is taking or is about to take provided it causes or is likely to to cause injury or annoyance to the public or to lead to a breach of the peace, his authority and jurisdiction in all other cases to take action under sub-section (1) of section 258 is confined only to unlawful character of the order or resolution of the municipality or the action which it is taking or is about to take. The resolution in question about the appointment of the Chief Officer, could be suspended only if it was unlawful because, by its very nature, it could not cause injury or annoyance to the public or lead to a breach of peace. The Collector has power to suspend the resolution even if it is implemented under section 258 of the Act and he can pass the order to restore status quo ante. 10. Learned Senior Advocate Mr. P.M.Rawal appearing on behalf of the respondent Shehnajbai Ibrahimbhai Qureshi contended that the word "control" has its meaning as absolute control and he has referred different disctionary