RAMJI UKABHAI PARMAR Vs. MANILAL PURUSHOTTAMDAS SOLANKI
LAWS(GJH)-1960-7-17
HIGH COURT OF GUJARAT
Decided on July 20,1960

RAMJI UKABHAI PARMAR Appellant
VERSUS
MANILAL PURUSHOTTAMDAS SOLANKI Respondents


Referred Judgements :-

BOARD OF EDUCATION V. RICE [FOLLOWED]
LOCAL GOVERNMENT BOARD V. ARLIDGE [FOLLOWED]
NEW PRAKASH TRANSPORT COMPANY LIMITED VS. NEW SUWARNA TRANSPORT COMPANY LIMITED [DISTINGUISHED]
F N ROY VS. COLLECTOR OF CUSTOMS CALCUTTA [DISTINGUISHED]
SHIVJI NATHUBHAI VS. UNION OF INDIA [FOLLOWED]



Cited Judgements :-

RAMNATH AGARWAL VS. G S IYER COLLECTOR OF CUSTOMS KANDLA [LAWS(GJH)-1960-9-13] [REFERRED]
PUNJABHAI DAHYABHAI PATEL VS. SHAH JAYANTILAL MAGANLAL [LAWS(GJH)-1965-7-11] [REFERRED]
PEARL AGENCIES VS. INSPECTING ASSISTANT COMMISSIONER. [LAWS(DLH)-1989-5-63] [REFERRED TO]


JUDGEMENT

S. T. DESAI, N. M. MIABHOY - (1.)The petitioner Ramjibhai Ukabhai Parmar has obtained a rule calling upon the respondent No. 2 to show cause why a writ of certiorari should not issue to remove into this Court an order made by it allowing an appeal preferred by respondent No. 1 on the ground that it had violated a fundamental of principle of natural justice. Respondent No. 1 Manilal Purshottam Solanki is a Councilor of the Baroda Borough Municipality thereafter called the Municipality) Petitioner is a resident of Baroda and claims to be a voter in the ward from which respondent No. 1 has been elected as a councilor. Petitioners case was that respondent No. 1 had incurred a disqualification to be a member of the Municipality under section 12 sub-sec. (2) clause (b) of the Bombay Municipal Boroughs Act 1925 (hereafter called the Act) and has thus become disabled from continuing as a councilor of the Municipality. Section 12 sub-section (2) clause (b) enacts inter alia that no person who has directly or indirectly 9 by himself or his partner any share or any interest in any employment with a Municipality shall be a councilor of such Municipality. Section 28 sub-section (2) of the Act mentions the authority who is competent to decide whether disqualification has been incurred by a Municipal councilor or not and also prescribes the procedure which is to be followed in any enquiry instituted for the purpose. The collector has given to the power to decide such a question and sub-section (2) states that the Collector may give his decision either on an application made to him by any person or on his own motion. The case of the petitioner was that though respondent No. 1 had given an ostensible divorce to one Bai Harkor in fact Bai-Harkor was still his wife. It is an admitted fact that Bai Harkor was employed by the Municipality as a Safai Kamdar in Babajipura Ward of the Municipality. Petitioner alleged that Bai Harkor and respondent No. 1 resided and messed together and that the income which Bai Harkor derived by way of salary from the Municipality was the sole source of maintenance of respondent No. 1 and his family. Petitioner also alleged that Bai Harkor had borrowed certain loans from an institution which was run by the Municipality and that one of the loans was taken by respondent No. 1 for reconstructing and repairing a certain house belonging to him. Petitioner also alleged that respondent No. 1 had taken part of procuring the loans for Bai Harkor and that some of the loans were granted in contravention of the relevant rules of the institution run by the Municipality. Acting on these allegations the Collector of Baroda decided to issue a notice against respondent No. 1 to show cause why be should not be disqualified from acting as a Municipal councilor and why a declaration should not be made that a vacancy had arisen. Respondent No. 1 appeared before the Collector and contested the petition. He denied all the important allegations made by petitioner in his application to the Collector. The Collector held an enquiry and though he found some of the important allegations not proved he came to the conclusion on the basis of some facts which he held to have been proved that respondent No. 1 was interested in the employment of Bai Harkor by the Municipality. The Collector held that the petitioner had incurred the disqualification mentioned in sec. 12 sub-sec. (2) clause (b) and therefore was disabled from acting a Municipal councilor under sec. 28 sub-sec. (2) of the Act. On these findings he declared that the seat of respondent No. 1 had become vacant and that respondent No. 1 was disabled from sitting as a member of the Municipality. Aggrieved by this order respondent No. 1 preferred an appeal to the State of Bombay which figures as respondent No. 2 in this petition. A copy of the memo of Appeal was not on the record of the present proceedings. Such a copy was produced by respondent No. 1 at the time of the hearing and that copy shows that the petitioner was joined in the memo of appeal as one of the respondents along with the Collector of Baroda District. The respondent No. 2 however did not issue any notice to petitioner nor did it take any step to hoar petitioner or any one else before deciding the appeal. By its order dated 5 respondent No. 2 allowed the appeal and set aside the order of the Collector of Baroda. The present writ petition is directed against this order of respondent No. 2.
(2.)The main attack of petitioner against the impugned order is that respondent No. 2 had violated a fundamental principle of natural justice in making the order. The grounds on which the order is challenged are two. The second ground is a corollary to the first. It is urged that it was the duty of respondent No. 2 to issue a notice of appeal to the petitioner before deciding the appeal and that by its failure to do so the petitioner had been deprived of an opportunity of meeting the case which respondent No. 1 had made out in his memo of appeal it was urged that therefore respondent No. 2 had decided the appeal without hearing the petitioner on the merits.
(3.)It is not disputed that an appeal lay to the respondent No. 2 from the decision arrived at by the Collector under sub-sec. (2) of sec. 28 already referred to above. In order to understand the contentions of the parties urged in this petition it is necessary to reproduce sub-sec. (2) of sec. 28:-
"In every case. the authority competent to decide whether a vacancy has arisen shall be the Collector. The Collector may give his decision either on an application made to him by any person or on his own motion. Until the Collector decides that the vacancy has arisen the councilor shall not be disabled under sub-section (1) from continuing to be a councilor. Any person aggrieved by the decision of the Collector may within a period of fifteen days from the date of such decision appeal to the State Government and the Orders passed by the State Government in such appeal shall be final:- Provided that no order shall be passed under this sub-Section by the Collector against any councilor without giving him a reasonable opportunity of being heard."



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