IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 9518 of 2002 For Approval and Signature: Hon'ble MR.JUSTICE P.B.MAJMUDAR ============================================================ 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 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 concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- HIRALAL G SIYAL Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: Mr.J.R.Nnanavati, with MR AR THACKER, for Petitioner No. 1-40 Mr.S.N. Shelat, Advocate General, with Mr.M.K. Dagli, Assistant GOVERNMENT PLEADER for Respondent No. 1 RULE SERVED BY DS for Respondent No. 2 M/S THAKKAR ASSOC. for Respondent No. 3 -------------------------------------------------------------- CORAM : MR.JUSTICE P.B.MAJMUDAR Date of decision: 28/10/2002 ORAL JUDGEMENT 1. The petitioners herein are the Ex-Councillors of Porbandar Nagarpalika. By filing this petition, they are challenging the order dated 3.9.2002, passed by the State Government, by which the Porbandar Municipality is ordered to be dissolved under the provisions of Section 263(1) of the Gujarat Municipalities Act and an Administrator is appointed to look after the affairs of the said Municipality. The aforesaid order of dissolving the said Municipality is passed on the ground that the Municipality has failed to discharge its duty. The proceedings were initiated by way of show cause notice dated 6th June, 2002. The said show cause notice was issued to the President of the Nagarpalika for the purpose of showing cause as to why proceedings under Section 263(1) of the Act should not be initiated against the Nagarpalika. In the said show cause notice, eight grounds are mentioned for the purpose of initiating the proceedings under the said proviso. The grounds mentioned in the show cause notice are at page 61. Ground No.1 relates to non-removing of the garbage and dirt from one Memanwada area. It is mentioned in the said ground that for failure in performing their duty in keeping the said area clean, complaint was filed against the Municipality under Section 133 of the Code of Criminal Procedure and when the matter was examined through the Mamlatdar, it was noticed that some false rojkams were prepared and subsequently, the person, who had signed the said Rojkam, gave complaint to the Deputy Collector that he had signed the Rojkam without proper verification. It is mentioned in the show cause notice that the Nagarpalika has not taken appropriate care in keeping the said area clean and that the Municipality had failed to maintain cleanliness and has failed to provide necessary facilities in connection with the healthy and hygienic atmosphere of the town. So far as ground No.2 is concerned, it is in connection with non-maintaining appropriate roads, which are affected in view of underground cabling and also in view of some cyclone which had taken place some time back. Ground No.3 is in connection with not taking care of catching hold of dogs and other animals even though Municipality is having appropriate staff and vehicles in this connection. It is also mentioned in the said notice that about 25 cattle died due to the negligence on the part of the Municipality as they were not given appropriate water, etc. and no medical facility was made available to such cattle and, accordingly, it is found that the Municipality has failed to carry out its duty. Ground No.4 is regarding not providing appropriate drinking facilities to the citizens of the Town and accordingly, it is observed that the Municipality has failed to discharge its duty in distributing water in a proper manner. Ground No.5 is regarding not maintaining sewerage and not cleaning the sewerage and non-maintenance of drainage system and that the Municipality is found to be negligent in maintaining the same. Ground No.6 is in connection with certain irregularity in the matter of auctioning certain Municipal buses for which the President of the Municipality was also served with a notice. Ground No.7 is in connection with renting out certain Municipal property without prior approval of the Competent Authority as well as regarding fixing upset price which resulted in monetary loss to the Municipality. The last ground mentioned in the notice is in connection with fixing rateable value in the matter of assessing house tax and it is found that in certain cases, the Municipality has reduced house tax to an extent of more than 50% and in certain cases, it is reduced to 90% to 98%. It was found that no reasons are given as to on what basis such reduction is made and that, accordingly, by reducing the house taxes, the Nagarpalika has abused its powers, which resulted in monetary loss to the Municipality. Each and every ground mentioned in the notice was replied by the Municipality through its President, by giving its explanation. It is also mentioned that the grounds mentioned in the show cause notice can never be taken as basis for dissolving the Panchayat. The Deputy Secretary of the Urban Development and Urban Housing Department, State of Gujarat, by his order, dated 3.9.2002, came to the conclusion that except ground No.7, mentioned in the show cause notice, it is established that rest of the grounds are found to have been proved and that, accordingly, the Municipality has failed to discharge its duty and accordingly, a decision was taken to dissolve the said Municipality under Section 263 of the Municipalities Act. The said order passed by the State Government, through the Deputy Secretary, is impugned at the instance of the Councillors of the Municipality. 2. At the time of hearing of this petition, Mr.J.R. Nanavati, learned Senior Advocate, who is appearing for the petitioners, has vehemently submitted that the impugned decision is not taken bona fide and that the said decision is arbitrary, it suffers from the vice of non-application of mind and it is contrary to the principles of natural justice. It is submitted that the State Government was not having appropriate material for initiating proceedings against the Municipality and without there being any rational material on record, show cause notice was issued to the Nagarpalika. It is also submitted by Mr.Nanavati that even the initiation of the proceedings itself is bad, as, at the time of issuance of show cause notice, the State was not having any appropriate material with it. Not only that, no documents in connection with any of the alleged grounds were supplied to the Municipality. He submitted that for non-availability of necessary material, it was difficult for the Municipality even to defend such vague charges, as no particulars were given in the show cause notice. Mr.Nanavati also further submitted that at the request of the Municipality, subsequently, some documents were given in connection with two charges, i.e. charge Nos. 3 and 6. However, for rest of the charges, no material was made available to the petitioner. On the merits of the charges also, it is submitted by Mr.Nanavati that the grounds mentioned in the show cause notice as well as in the order are absolutely vague and there is no substance in any of the grounds mentioned in the notice as well as in the order. 3. Regarding each of the grounds, justification is given on behalf of the Municipality as regards each and every ground. Notice dated 6th June, 2002 was served upon the Municipality. the said notice was initially replied on behalf of the Municipality, through their Advocate, vide reply dated 27th June, 2002. The said reply to the show cause notice was given by the President of the Municipality, through its Advocate. In the said reply, it is pointed out that notice is required to be given to all Councillors of the Nagarpalika and, therefore, initiation of the proceedings is illegal. It is also pointed out that no supporting material is given in connection with each of the charges levelled against the Municipality. It is also averred in the reply that as and when particulars are given, the Municipality will give appropriate reply. Initially, the petitioner has approached this Court at the show cause notice stage by filing a writ petition, being Special Civil Application No.6091 of 2002. Since it was at the show cause notice stage, the learned single Judge did not entertain the said Special Civil Application. However, the learned single Judge gave the following directions :- " ... ... ... In view of the aforesaid statement made by Mr.Nanavati, Municipality is directed to act as per the said statement and since there are serious allegations of political mala fide, I am of the view that, the ends of justice would meet if, the order is passed superceding the Municipality, the same will not be implemented for a period of 10 days from the date of its communication to the Municipality. 10. Subject to the aforesaid observation and direction, the petition is not entertained at this stage. ... ... ...." The aforesaid order was challenged by way of an appeal, being Letters Patent Appeal No.466 of 2002, and the order of the learned single Judge was set aside by the Division Bench in the Letters Patent Appeal. In the meanwhile, the respondent No.1 furnished some documents in respect of charge No.3 regarding stray animals, dogs and cattle as well as in connection with ground No.6 in respect of irregularities committed by the Vice President in connection with auction of buses. The Chief Officer, in the meanwhile, forwarded certain documents to the Deputy Secretary, by his letter dated 5.7.2002, which were in the possession of the Municipality. Thereafter, on behalf of the Municipality, detailed reply was given, which is at page 97, Annexure 'K', dated 26.7.2002. In the reply, it is pointed out that the initiation of proceedings is actuated by mala fides and that, individual notice was required to be issued to each of the members. It is also pointed out that necessary documents have not been supplied in connection with each and every charge and that the charges levelled are absolutely vague. The Municipality also gave reply on merits as regards each of the grounds raised against it. Regarding ground No.1 of the show cause notice, it is pointed out on behalf of the Municipality that no documents were supplied in connection with the complaints made to the Deputy Collector by a citizen of Porbandar Town, and the very fact of giving complaint by a citizen to the Deputy Collector is also denied by the Municipality. It is pointed out that there is no evidence that the Municipality has failed to carry out its obligation in the matter of maintaining cleanliness of the area. On behalf of the Municipality, the charge levelled against it on the basis of complaint of one citizen to the effect that the Rojkam in connection with the Memanwada area was signed without verification, is also denied. It is also averred in the reply that the Municipality is taking appropriate care in maintaining cleanliness of the City and maintaining its drainage. It is also pointed out that the Municipality has sent appropriate report to the Collector about the measures taken in the matter of making the city clean. It is also pointed out in the reply that simply at the instance of a solitary resident of a particular area, no cognizance was required to be taken by the authority for the purpose of initiating proceedings, as regards dissolution of the Municipality. Regarding ground No.2, which is in connection with the non-maintenance of roads, etc., the Municipality also gave its justification by filing reply and it was pointed out that all the roads are properly maintained. It is pointed out that the vehicular traffic has increased in the Porbandar Town and, therefore, the roads are subjected to usual wear and tear and the Municipality has to spend amount from its limited resources for maintaining the same. In the reply, details have been given regarding work done by the Municipality in the matter of maintaining the roads, and in the matter of spending certain amount towards Bajpainagar Yojna. Regarding ground No.3, it is submitted in the reply that no particulars have been given in connection with the said ground and that the charge levelled is absolutely of a general nature without giving any specific instance. In this connection, it is pointed out that the DSP had informed the Municipality to take action in this connection and that the General Body had passed a Resolution on 30.10.2000, reserving Rs.1,00,000/- for the purpose of purchasing necessary infrastructure for the purpose of catching the animals, and providing them water, food, etc. In connection with charge about death of some cattle, it is pointed out in the reply that a report was already submitted to the District Collector on 22.11.2001 in connection with the steps taken by the Municipality in this behalf. Regarding the aforesaid charge about allowing the stray cattle on the street, it is stated in the reply that all reasonable care is taken by the Municipality and certain letters and documents in that connection were also submitted along with the reply, which was given by way of Exhibit 10, and report was also submitted to the DSP. Regarding charge in connection with not distributing water in proper manner, it has been pointed out in the reply that the said charge is absolutely vague and no particulars are given. In the reply, it is pointed out that since there is no proper distribution of water to the Nagarpalika by the Gujarat Water Resources Board, which is under the control of the State Government, the Municipality is not getting adequate quota of water, as required, and that the Board is deliberately giving less water to the petitioner-Municipality. It is also pointed out in this connection that the attention of the Board was also drawn by the Municipality by way of certain correspondence. Reference to such correspondence is also made in the reply. Some more particulars are also given in this connection in the reply, in detail. In connection with the charge about not cleaning sewerage and removing the garbage and dirt, the said charge is also denied and particulars about the measures taken by the Municipality are also highlighted in the reply. Some documents are also annexed in this connection along with the reply. It is pointed out that there is no ground for taking action for dissolving the Municipality on the aforesaid ground. In connection with the ground about handing over city bus service to private institutions and in connection with the irregularity alleged in the notice in disposing of certain municipal buses by way of public auction, it is pointed out that after passing appropriate Resolution, the said decisions were taken. It is pointed out that the Municipality was incurring heavy losses in maintaining the aforesaid bus service and every year, average loss is to the tune of Rs.30,00,000/- to Rs.36,00,000/-, and, therefore, a request was made to the Gujarat State Transport Corporation to take away the Municipal bus service in their hand, but they did not accede to the said request. It was, therefore, recommended that the bus services may be handed over to private institutions and, ultimately, appropriate Resolution was passed by the Municipality. Regarding the alleged ground of selling certain buses by public auction, it was pointed out in the notice that rates were invited by way of public notice and the said procedure was conducted by the Vice President of the Municipality, who was the In-charge President at the relevant time and that, he was subjected to notice under Section 37 of the Gujarat Panchayats Act as to why he should not be removed for the aforesaid act. Therafter, an order was passed, removing him as Vice President, which action he has challenged by way of a writ petition, being Special Civil Application No.4405 of 2002, and that the High Court has admitted that petition and granted interim relief. It is pointed out in the reply that when proceedings have been initiated by the Vice President in his individual capacity and since this subject matter is in connection with some individual act, no proceedings for dissolving the entire Municipality can be taken on the basis of the aforesaid ground. As regards leasing out certain shops is concerned, it is pointed out that the said decision was taken by the earlier body and, therefore, no proceedings can be initiated against the present body in any manner. Some more particulars were also given in the reply in connection with the aforesaid ground. Concerning ground No.8, which is in connection with reducing the assessment towards house tax, it was pointed out in the reply that the decisions in this connection was taken by the appellate authority of House Tax Committee and that on merits, such decision is taken by the Committee. It is pointed out that the Appellate Authority, after considering the arguments of assessee, is taking independent decision in the matter of fixing annual letting value. It is pointed out that this being a decision of the appellate authority and since the appellate authority has taken decision as per law, the said ground cannot be taken into consideration for the purpose of dissolving the Municipality. It is also pointed out in the reply that even proceedings could have been initiated against the members of the House Tax Committee or against the Chairman of the House Tax Committee under Section 37 of the Act or even the decision could have been taken in review under Section 258 of the Municipalities Act, but no such proceedings have been initiated by the Deputy Collector or the Collector. However, the Deputy Collector has not recommended any such action under Section 258 of the Act to the Collector. Under the circumstances, it was prayed that there is no substance in the said ground also. The State Government, therafter, after considering the facts and circumstances of the case, and after considering the reply as well as after considering the arguments of the Municipality, passed an order under Section 263 of the Municipalities Act, dissolving the said Municipality. It is not in dispute that except regarding two charges, for rest of the charges, no document is given to the Municipality at the relevant time. It is submitted by Mr.Nanavati that there are bunch of papers and it is not possible fer the Municipality to find out all these papers for the purpose of giving reply. 4. The contention of Mr.S.N. Shelat, learned Advocate General, is that these are the documents of the Municipality itself and it is always open for them to find out the documents which are in their custody and to give reply. But, considering the facts of the case, I am of the opinion that when the State Government decided to take proceedings against the Municipality, by which elected body was likely to be ousted from power, by dissolving the entire Municipality appropriate material, on the basis of which notice was issued to the petitioner-Municipality, was required to be given to it. It is, as such, not in dispute that for most of the charges, no documents were given and, in fact, there is nothing on record, by which the Court can come to the conclusion that at the time of issuing the notice, any material worth the name was available with the State Government for the purpose of initiating proceedings under Section 263 of the Municipalities Act. 5. It is submitted by Mr.Nanavati that a democratically elected body cannot be removed in such a casual manner and the decision taken by the State is nothing but a mockery of democratic system of the country. He submitted that the elected body has a right to continue in office for the period during which they have been elected and for that purpose, he has relied upon Article 243U of the Constitution of India. He submitted that if recourse is made to the grounds mentioned in the show cause notice for dissolving the Municipality, then, all the Municipalities and local authorities will be required to be superseded, as, there would hardly be any Municipality, which would not have stray dogs or stray animals on its thoroughfares. He submitted that it is only the petitioner-Municipality, which has been singled out for issuance of notice and no other local authority is subjected to any such proceedings at any point of time on the ground that they have failed to control the menace of stray dogs and animals on the public roads. This argument is advanced by Mr.Nanavati in order to substantiate his say that the decision is not proper and it is taken for some oblique reasons. It is also argued by Mr.Nanavati that some of the incidents mentioned in the show cause notice relates to the period between 2000 and 2001 and still, for a considerable time, no action was taken and no show cause notice was issued, and that, with a purpose, the show cause notice issued, because, the elected body of the petitioner-Municipality was of Congress Party, while at the State level, it is BJP which is in power and, therefore, in order to see that the elected body may not be in power at the time when Assembly election is to be held, the aforesaid proceedings are initiated with that oblique purpose. It is submitted that the fact that there is a delay of more than one-and-a-half or two years, as the case may be, for initiation of such proceedings, itself is suggestive of the fact that the decision is not taken in a bona fide manner and it is taken after the announcement of the dissolution of the Assembly on 19th July, 2002. In the aforesaid background of the facts, it is stated that in order to remove the elected representatives because they are of the Opposition Party, the proceedings were initiated, which, according to him, is not a bona fide exercise of power. It is also submitted that, even on merits, there is hardly any substance in any of the grounds alleged against the petitioner. Mr.Nanavati also very vehemently submitted that a solitary or stray incident is not enough for attracting the provisions of Section 263 of the Gujarat Municipalities Act, 1963. It is submitted that, for example, on a given day, for some reason, in a particular area, a stray cattle might be found on the road, and the same is no ground for dissolving the entire Municipality. It is submitted that there is nothing on record to show that at the time when the show cause notice was issued, there was any existing material available with the authority, by which a subjective satisfaction could have been reached by the authority on rational ground that the Municipality is not in a position to perform its duty, which it is supposed to discharge as per the provisions of the Municipalities Act. The argument is advanced on the basis of remoteness of some of the incidents, which were not found to be in existence at the time when the Government decided to issue the show cause notice. Under these circumstances, it is submitted that unless there is material for coming to the conclusion that the Municipality is committing persistent default, or there is a serious act of misuse of power, it is not open for the Government to take proceedings for superseding the Municipality, which has serious civil consequences, by which democratically elected representatives are sent home. It is submitted that the proceedings, which have been initiated, show as to how a casual approach is taken by the State for passing the impugned decision. 6. It is also argued that the respondent No.3, who is a Minister in the State Cabinet, belongs to Porbandar Town and he is an MLA of the said Town and, accordingly, the petitioners have a strong feeling that only at his instance, these