CHHANALAL A PATEL Vs. STATE OF GUJARAT
HIGH COURT OF GUJARAT
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(1.)This is a petition for a writ of prohibition d irecting the opponent the State Government not to proceed with an inquiry contemplated by a show cause notice dated 4/04/1960 issued in circumstances to be presently stated. The petitioner is the President of the District Local Board Mehsana. He was also the President of a previously constituted Local Board. A District Local Board of Mehsana was constituted of elected members in 1957. The petitioner was an elected member of that Board and was elected its President and functioned as such from 12/07/1957 to 13/06/1958. There were changes in the boundaries of the district and the Local Board was dissolved by the State Government on 13/06/1958. On 1 4/06/1958 the District Local Board for Mehsana was reconstituted and the petitioner was one of the nominated members of that Board. At a meeting convened for the purpose the petitioner was elected President of the reconstituted Local Board on 14/06/1958. That office of the petitioner as President was for a period of three years from 14/06/1958. On 4/04/1960 the State Government issued a notice on the petitioner calling upon him to show cause why he should not be removed from his office under section 26(1) of the District Local Boards Act 1923 A number of allegations are made against the petitioner in that show cause notice. It is not necessary to go into the details of those allegations and it will suffice to observe that the allegations are not of any serious nature. It is of consequence however to note that all the allegations in that show cause notice relate to a period prior to 14/06/1958 when the District Local Board was reconstituted and the petitioner was elected as its President. They relate to the period of the previously constituted District Local Board. This is common ground. Immediately after the service of the show cause notice on him the petitioner presented this petition seeking a writ of prohibition directing the opponent not to proceed with the inquiry contemplated by the show cause notice.
(2.)One important question that arises for our determination lies in a narrow compass and relates to the interpretation of sec. 26 of the Bombay Local Boards Act to be referred to by us hereafter as the Act. The other question is one of greater importance and relates to the position in law in the matter of issuance of a writ of prohibition. Where there is patent lack of jurisdiction and it appears that a Tribunal or authority is usurping jurisdiction would a writ of prohibition issue as a matter of right or a matter of course or would it be a matter of discretion with the Court?
(3.)It has been argued before us by Mr. M. P. Amin learned counsel for the petitioner that the show cause notice could not be issued under section 26 because the alleged misconduct did not take place during the term of office of the petitioner as the President of the reconstituted District Local Board. The argument has proceeded that the show cause notice is wholly outside the purview of sec. 26 and issued by the State Government without any authority and jurisdiction. In order to appreciate this argument it will be convenient to set out here the relevant and material part of that section:-
"26. (1) The term of office of every president or vice-president shall cease on the expiry of his term of office as a member of the local Board over which he presides:- provided that he shall be removable from office as such president or vice-president by the State Government for misconduct or neglect of or incapacity to perform his duty and a president or vice-president so removed shall not be eligible for re-election or appointment during the remainder of the term of office of local board."
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