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SCA/4505/2011 9/ 9 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4505 of 2011
With
CIVIL
APPLICATION No. 4744 of 2011
In
SPECIAL CIVIL
APPLICATION No. 4505 of 2011
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================
1.
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2.
To
be referred to the Reporter or not ?
3.
Whether
their Lordships wish to see the fair copy of the judgment ?
4.
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5.
Whether
it is to be circulated to the civil judge ?
=========================================
AJITSINH
RAMUBHA JADEJA - Petitioner(s)
Versus
STATE
OF GUJARAT - THROUGH SECRETARY & 3 - Respondent(s)
=========================================
Appearance :
MR
DM THAKKAR for
Petitioner(s) : 1,
MS. M.O. NARSINGHANI, AGP for Respondent(s) :
1,
NOTICE SERVED BY DS for Respondent(s) : 1 - 3.
MR RR TRIVEDI
for Respondent(s) : 3,
MR BHAVESH P TRIVEDI for Respondent(s) :
3,
MR ASHISH M DAGLI for Respondent(s) :
4,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 12/05/2011
CAV
JUDGMENT
1. By
way this petition under Article 226 of the Constitution of India, the
petitioner who is President of Jetpur Navagadh Municipality
has prayed for an appropriate writ, direction and order quashing and
setting aside the order/direction issued by the District Collector,
Rajkot dated 6.4.2011 at Annexure A to the petition by which he has
directed the Chief Officer of the Jetpur Navagadh Nagar Palika to
call / convene the meeting to consider no confidence motion against
the petitioner as per the notice moving no confidence motion against
the petitioner dated 23.3.2011.
2. It
is the case of the petitioner that petitioner is councilor and
President of Jetpur Navagadh Municipality. That the members of the
municipality submitted motion for no confidence against the
petitioner on three issues mentioned therein in their notice dated
24.1.2011. That apropos to the above notice meeting was called by the
petitioner on 28.1.2011. However, in the said meeting, an application
for adjournment of the meeting was submitted by 19 members of the
municipality on the ground that 8 members of Municipality are
disqualified for defection by the competent authority and as they
have challenged the order of competent authority by filing a writ
petition, which was kept for hearing and therefore, till the final
disposal of the said petition, special general meeting called by the
petitioner in respect of no confidence motion should be adjourned. It
is the case of the petitioner that therefore, the said Special
General Meeting for no confidence motion was adjourned. It is the
case of the petitioner that however, the Vice President of the
Municipality made a noting that in view of Section 51(11) of the Act,
now meeting be called on 5.2.2011. It is the case of the petitioner
that on 5.2.2011, again 20 members of the municipality submitted an
application with a request to call the meeting on
15.2.2011. It is the case of the petitioner that on 15.02.2011 Chief
Officer of the municipality informed the aforesaid 20 members as the
special general meeting on 28.1.2011 was adjourned at their request
till the final disposal of the writ petition filed by the 8 members
of their party against their disqualification, now again the meeting
cannot be called on 15.2.2011 as per their request. It appears that
Vice President and other members of the municipality moved a Special
Civil Application No.3037 of 2011 before this Court making grievance
against the petitioner for not calling special general meeting as per
their request and the said petition came to be disposed of by this
court vide order dated 10.3.2011 with a direction to the District
Collector, Rajkot to call the special general meeting. It is the case
of the petitioner that thereafter as per the direction of this Court,
the Deputy Collector, Gondal vide notice dated 14.3.2011 called
special general meeting on 21.3.2011 and for want of majority support
for passing the motion for no confidence, the motion for no
confidence against the petitioner was rejected. It appears that
thereafter another motion for no confidence was moved against the
petitioner by notice dated 23.3.2011 and neither the President nor
the Vice President directed to convene the meeting to discuss the no
confidence motion against petitioner pursuant to the notice of no
confidence dated 23.3.2011, after obtaining necessary legal opinion,
the Collector, Rajkot, by impugned communication dated 6.4.2011 has
directed the Chief Officer to call the special general meeting to
discuss the no confidence motion against the petitioner pursuant to
the notice of no confidence dated 23.3.2011.
2.1. Being
aggrieved and dissatisfied with the aforesaid communication
dated 23.3.2011, the petitioner has preferred present Special Civil
Application under Article 226 of the Constitution of India.
2.2. It
appears that during the pendency of the present petition meeting was
already convened by the Vide President of the Jetpur Navagadh Nagar
Palika on 15.4.2011, the petitioner has preferred Civil Application
No.4744 of 2011 restraining the respondents from convening the
special general meeting scheduled on 15.4.2011 and in the said
application this Court by way of ad-interim relief directed that any
decision in the meeting to be convened on 15.4.2011 to discuss the no
confidence motion against the President, shall be subject to the
ultimate outcome of present Special Civil Application and subject to
further order that may be passed in the present Special Civil
Application. It is reported that as such in the meeting held on
15.4.2011 no confidence motion has been passed against the petitioner
by 24 votes in favour of motion and one vote (of the petitioner
himself) against the motion of no confidence.
3.0. Shri
D.M. Thakkar, learned advocate for the petitioner has only made one
submission relying upon Rule 24 of Jetpur Navagadh Municipality
regarding the meeting of general board and continues, their powers
and function and rules of Chief Officer that once motion of no
confidence was rejected for want of majority in special general
meeting convened on 21.3.2011, second motion for no confidence
against the petitioner is not maintainable within a period
of three months from the date of voting of such motion. It is
submitted that the aforesaid rules are framed by the Municipality
under Section 271 (a) of the Gujarat Municipalities Act, 1963 and
therefore, it is submitted that the second motion for no confidence
as per the notice dated 23.3.2011, which is within a period of three
months is not maintainable and therefore, the Collector has
materially erred in directing to convene the special general meeting
of the municipality to discuss no confidence motion against the
petitioner pursuant to the notice of no confidence motion dated
23.3.2011. Shri Thakkar, learned advocate for the petitioner has
heavily relying upon Rule 24 of the aforesaid Rules, which reads as
under:
“When
a motion has been moved and voted upon in the meeting with whatever
the outcome, no motion raising substantially the same question in any
other manner shall be allowed, admitted or taken up within three
months from the date of voting of such motion”.
3.1. By making
above submission, it is requested to allow the present petition.
4.0. Petition
is opposed by Shri Bhavesh Trivedi, learned advocate for the
respondent no.3, Shri Dagli, learned advocate for newly added
respondent no.4 and Ms. Narshinghani, learned AGP for the respondent
State. Shri Trivedi, learned advocate for the respondent no.3 and
Shri Dagli, learned advocate for the respondent no.4 have submitted
that Rule 24 of the Rules upon which reliance has been placed by the
petitioner will not be applicable with respect to special
general meeting to discuss no confidence motion. It is submitted that
the said Rule 24 is with respect to other motion of business and
transaction of the municipality and general meeting and not with
respect to motion to discuss no confidence motion. It is submitted
that as such there is no such provision in the Gujarat Municipalities
Act that once motion of no confidence has failed another motion for
no confidence again brought within a period of three months is not
maintainable. Therefore, it is submitted that the contention on
behalf of the petitioner that once the motion of no confidence has
failed there cannot be another motion of no confidence within a
period of three months shall be contrary to the provision of Gujarat
Municipalities Act and/ or same shall be inconsistent with the
provision of the Ac. Therefore, it is requested to dismiss the
present Special Civil Application.
5.0. Heard
the learned advocates for the respective parties at length. At the
outset, it is required to be noted that the only contention on behalf
of the petitioner in the present Special Civil Application is that
once the motion of no confidence was rejected in the meeting convened
on 21.1.2011, within a period of three months thereafter there cannot
be any fresh motion for no confidence within a period of three
months. In support of the above contention and submission, the
learned advocate for the petitioner has heavily relied upon Rule 24
of the Rules, which are framed under Section 271(a) of the Gujarat
Municipalities Act, which is referred to hereinabove. Therefore, the
short question which is posed for consideration of this Court is
whether the aforesaid Rule 24 shall be applicable to the special
general meeting and/ or motion for no confidence
? Now considering the aforesaid rules as a whole, it appears that
whenever the word “motion” is used the same is referable
to motion moved by a councilor to discuss the particular question in
the meeting and it does not refer to the motion for no confidence for
which special general meeting is required to be convened. For that
purpose, Rule 5, 19, 20, 21, 22,23 and 28 are required to be read
conjointly and as a whole. The word “motion” referred to
in the aforesaid provision is with respect to a motion by the
councilor and the rules provided for procedure of conducting the
meeting of the general board which is as per Section 271(a) of the
Gujarat Municipalities Act. Therefore, the reliance placed upon Rule
24 of the Rules regarding meeting of the general board referred to
hereinabove shall not be applicable to the motion for no confidence
as sought to be contended on behalf of the petitioner. It appears to
the Court that Rule 24 shall be applicable with respect to any motion
moved by councilor with respect to general meeting and general motion
and the question to be incorporated in the agenda. It is to be noted
that motion for no confidence is altogether different than that of
motion moved by a councilor to be discussed in the general meeting or
meeting of the general Board. Rule 19 provides about the motion and
it provides for how to move the motion and it provides no motion
shall be admissible, which is clearly and precisely not expressed;
which shall contain arguments, inference, ironical expression or
defamatory statement; or which does not raise or show one definite
issue. Rule 20 provide how to move the motion. Rule 21 provides for
moving of motion and Rule 22 provides for limitation as to discussion
and Rule 23 for seconding the motion. Considering the aforesaid
as such it does not refer to motion for no confidence. In the motion
for no confidence as such there is no question of mentioning anything
in the motion as provided in Rule 19 or Rule 20 or Rule 21. The
motion for no confidence is governed by Section 51(11) of the Gujarat
Municipalities Act and as such it does not provide that there cannot
be any second and/or fresh no confidence motion within a period of
three months from the rejection of the earlier motion. At this stage,
it is to be noted that Section 271(a) of the Gujarat Municipalities
Act permits the municipalities to have prescribed their own rule in
consistent with the Act and may frame the rules which shall be
consistent with the Act and for the subject provided in Section 271.
That provision for motion for no confidence is provided under sub
rule 51(2) only, which reads as under:
“The
president may, whenever he thinks fit and shall upon the written
request of not less than one third of the councilors in the case of a
motion of no confidence against the president or vice president and
one forth of the councilors in any other case and on a day not later
than 15 days after the presentation of such request, call a special
general meeting. If the president fails to call a special general
meeting as provided in this clause the vice president shall call such
meeting on a day not later than thirty days after the presentation of
such request”.
6.0. Considering
the above provisions of the Act, it does not provide anywhere that
fresh and / or second motion of no confidence is not permissible
within a period of three months from the earlier
motion of no confidence. Under the circumstances, the contention on
behalf of the petitioner that in view of the earlier motion of no
confidence failed / rejected in the meeting dated 21.3.2011
thereafter another fresh / second motion of no confidence within a
period of three months is not permissible cannot be accepted. In a
given case it may happen that in the particular meeting for no
confidence motion may fail for whatever reasons, however subsequently
within few days only the act of the President / Vice President is as
such detrimental to the interest of the Municipality and/ or Nagar
Palika, in that case certainly it is permissible to move another
fresh motion of no confidence. However, such an interpretation
canvassed on the part of the petitioner is accepted in that case,
once the motion of no confidence has failed, it will give free hand
to the President/ Vice President to act arbitrarily and/ or against
the interest of the municipality/ Nagar Palika, which cannot be the
intention of the legislature.
7.0. Under
the circumstances and in view of the above, the contention on behalf
of the petitioner cannot be accepted and therefore, the petition
fails and same deserves to be dismissed and is accordingly.
8.0 In
view of dismissal of main Special Civil Application, ad-interim
relief order passed by this Court passed in Civil Application is
hereby vacated and the said application is also dismissed.
(M.R.SHAH,
J.)
kaushik
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