NANDLAL KHODIDAS BAROT Vs. V B BUCH COLLECTOR MEHSANA
HIGH COURT OF GUJARAT
NANDLAL KHODIDAS BAROT
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B.J.DIVAN, P.N.BHAGWATI -
(1.)The petitioner herein has challenged certain orders passed by the Collector of Mehsana in connection with matters arising before him under the provisions of the Gujarat Municipalities Act 1963 (hereinafter referred to as the Act) and has also challenged the action of the second respondent the President of Kalol Municipality in connection with certain meetings held on the requisition by some of the members of that Municipality. The petitioner is appearing in person. He is an elected councillor of this municipality. At the time of the presentation of the petition he was the Chairman of the Legal Committee of Kalol Municipality. Respondent No. 2 is the President of the Municipality and respondent No. 3 is the Acting Chief Officer of the Kalol Municipality who was appointed to that post under the circumstances set out in the petition. Respondent No. 1 is the Collector of Mehsana. Respondent No. 4 is the Government of Gujarat. Respondent No. 5 is the former Chief Officer of the Kalol Municipality and the sixth respondent is the Municipality itself. It is the case of the petitioner as set out in the petition that the present board of the Municipality was constituted on November 1 1970 The petitioner contends that there are two groups in this Municipality. One of the two groups is led by respondent No. 2 and the other group is led by the petitioner. The petitioner contends that when the new board was constituted in November 1970 respondent No. 2 had the support of 19 out of 25 councillors of the Municipality and the petitioner contends that between November 1970 and the date of the filing of this petition on January 4 1973 the second respondent had lost the support of the majority of the councillors and the petitioner contends that at present respondent No. 2 is supported by only 8 councillors whereas the petitioner himself is supported by 15 councillors. The petitioner states that on November 1 1972 a special general meeting of the Municipality was hled under the chairmanship of the Vice-President to discuss a motion of no confidence moved under the provisions of sec. 36 of the Act and the motion was against respondent No. 2 the President. At that meeting 18 councillors including the President and the Vice President were present and the petitioner states that the President and the Vice-President voted against the motion and the remaining 16 councillors voted in favour of the motion. Thus the petitioner contends that the motion of no-confidence against the President was carried by more than two-third of the counci- Ilors present at the meeting. The proceeding of that meeting of November 1 1972 was also written to that effect in the proceeding book on the spot and it was also signed by the Vice President who was the presiding officer of that meeting. The petitioner says that he himself had read the proceeding but subsequently on November 2 1972 when a special general meeting of the Municipality presided over by respondent No. 2 was held it was found that the proceeding had been changed. At that meeting of November 2 1972 a resolution was passed by which it was proposed to recommend to the Government that respondent No. 2 shall be removed from the presidentship as well as the membership as an ordinary councillor from the Municipality under sec. 37 sub-sec. (1) of the Act. This resolution of November 2 1972 authorised the present petitioner to furnish all relevant papers to the Government of Gujarat and the resolution directed the Chief Officer to furnish to the petitioner without delay the relevant papers as well as records as may be required by the petitioner. This resolution was carried by 16 votes to 6 votes. The petitioner says that in the said special general meeting of November 2 1972 the minutes of the special general meeting of November 1 1972 were neither read nor confirmed and the petitioner contends that at the end of the proceeding certain words were added after the proceeding book was signed by the presiding officer and after the contents of that proceeding had been actually read by the petitioner. The petitioner contends that these additional words were written by the then Chief Officer respondent No. 5 at the instance of respondent No. 2. The petitioner contends that this action on the part of respondent No. 2 amounted to misconduct and the petitioner and others decided to call a special general meeting of the Municipality to discuss this alleged misconduct of respondent No. 5 and to take necessary action in the matter. A letter signed by 10 councillors of the Kalol Municipality was addressed and delivered to respondent No. 2 requesting him to call a special general meeting of the Kalol Municipality The second respondent presided over the meeting of the Municipality held on November 4 1972 and the question of correctness of the minuteS of the meeting of November 1 1972 was raised and there was a lot of discussion at the meeting. The points of order raised by the petitioner are alleged to have been over ruled by respondent No. 2. A question waS raised that it was not permissible for the president to preside over the meeting even for the purpose of confirming the minutes of the meeting of November i 1972 and the petitioner was over ruled on this point. The petitioner then sets out a number of matters on which there were differences between the petitioner and respondent No. 2. The petitioner has also mentioned in the petition that in the course of the controversy that arose the Kalol Municipality by a majority purported to pass a resolution on December 4 1972 reducing the term of office of the second respondent from five years to two years. At that meeting of December 4 1972 the petitioner had presided and there was some controversy between the parties ask to whether the proceedings of the meeting of December 4 1972 were legal and valid or not. In the course of this judgment we are not concerned to examine the correctness of the rival contentions on this . point but the main question we have to consider in the course of this judgment is whether it was competent to the general board of the Kalol Municipality to pass a resolution reducing the term of office of the President. After that resolution was passed the third respondent herein purporting to be the Chief Officer of the Kalol Municipality addressed the letter dated December 5 1972 to the Collector of Mehsana respondent No. 1 herein to the effect that on reduction of the term of office of the President of the Kalol Municipality the office of the President had fallen vacant and under sec. 42 sub-sec. (1) of the Gujarat Municipalities Act the Collector was called upon to take appropriate action for filling up the vacancy. The Collector gave an opportunity of being heard to the petitioner the second respondent and the third respondent who claimed to be the Chief Officer of the Kalol Municipality and ultimately by his order dated January 1 1973 Annexure T to the petition the first respon- dent held that it was not competent to the Kalol Municipality to pass a resolution reducing the term of the President. In view of that conclusion the Collector held that resolution No- 285 by which the term of the President was purported to be reduced from five years to two years and one month that is upto December 5 1972 was as such illegal and beyond the competence of the municipal board and could not be recognised as valid.
(2.)In these proceedings the petitioner has challenged this order Annexure T to the petition passed by the first respondent on January 1 1973 We may also mention that the petitioner has challenged the constitutional validity of sec. 36 of the Act and has contended that sec. 36 is violative of Article 14 of the Constitution in as much as it makeS provision for a special majority for passing a motion of no confidence without any reasonable classification based on intelligible differentia. The first respondent and the second respondent appeared at the hearing and after the stage of admission of this petition and after the matter was discussed before us the petitioner and respondents Nos. 2 and 6 arrived at a certain arrangement between themselves on January 11 1973 Under those consent terms? it was agreed that a special general meeting of the Municipality should be called by the second respondent on January 18 1973 for discussing the propositions set out in those consent terms. Those consent terms were filed in Court. In view of those consent terms the only question that we have to decide in the course of this judgment is whether under the provisions of the Act it is open to the general board of the Municipality functioning under the Act to reduce the term of the president of the Municipality after it has been initially fixed under the provisions of the Act. We may mention that the petitioner has not given up the point regarding the constitutional validity of sec. 36 of the Act and we have kept that question open as it is not necessary for us to express any opinion regarding the validity of that section for the purpose of deciding this petition.
(3.)Before we proceed to discuss the provisions of the Act in this connection we may mention that it is common ground that at the first meeting of the newly elected members of this municipality after the new board was constituted in the month of November 1970 the term of office of the president of the municipality was determined to be five years and thereafter the second respondent was elected as the president. The petitioner contends that under the provisions of the Act it is competent to the general board of the municipality to modify or cancel this resolution passed in November 1970 in such a manner that the term of the president is not reduced below two years and once the period of two years from the date of the first determination of the term of office has passed it is open to the municipality in view of the provisions of sec. 51 to modify or cancel the resolution and even though a longer period for the term of the president can in the first instance be determined it can be reduced to a period of not less than two years.
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