IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION No 1689 of 1997
in
SPECIAL CIVIL APPLICATIONNo 1227 of 1997
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BALUBHAI B RADA
Versus
VH SHAH/DIRECTOR OF MUNICIPALITIES.
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Appearance:
MR JAYANT PATEL for Petitioners
NANAVATY ADVOCATES for Respondent No. 1
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CORAM : S.D.Pandit,J
Date of Order: 10/02/97
ORAL ORDER
Heard Mr. Rawal, learned Senior counsel
for the applicant. This application is filed by one
Balubhai Bhagabhai Rada, municipal councillor of Junagadh
Municipality seeking an order of this Court to implead
him as a party in the Special Civil Application no.1227
of 1997.
2.Special Civil Application No. 1227 of
1997 is filed by one Satishkumar Ahir under Articles 226
and 227 of the Constitution of India to challenge the
order passed by the Director of Municipalities, State of
Gujarat on 3rd February, 1997 under section 37 of the
Gujarat Municipalities Act,1963. The proceeding under
section 37 of the Gujarat Municipalities Act,1963 was
initiated against the petitioner in Special Civil
Application no. 1227 of 1997 by issuing a notice dated
6/13.2.1996. The provisions of section 37 will have to
be considered here in order to consider the claim of the
petitioner and that section 37 of the Gujarat
Municipalities Act,1963 is running as under:
“37 (1) The State Government may remove from office-
(a)any councillor of a municipality, (on its own
motion or on receipt of) a recommendation of the
municipality in that behalf supported by a majority of
the total number of the then councillors of the
municipality, or
(b)any president or vice-president of a
municipality,
if, after giving the councillor, president or as the case
may be, vice-president an opportunity of being heard and
giving due notice in that behalf to the municipality and
after making such inquiry as it deems necesssary, the
State Government is of the opinion that the councillor,
president or as the case may be,vice president has been
guilty of misconduct in the discharge of his duties or of
any disgraceful conduct or has become incapable of
performing his duties under this Act.
(2)A president or vice-president removed under
sub-section (1) shall not be eligible for re-election as
a president or vice president during the remainder of the
term of the municipality.”
If the above provisions of section 37 are
considered, then it would be quite clear that the action
taken against the petitioner in Special Civil Application
No. 1227 of 1997 is initiated by the State Government
and it is not initiated either by the municipal
councillor or by any individual. Therefore, the claim of
the applicant that proceeding under section 37 of the
Gujarat Municipalities Act, 1963 was initiated against
the petitioner in Special Civil Application No. 1227 of
1997 at his instance could not be believed and accepted.
3.The main claim of the applicant to allow
him to join in this petition is on account of his filing
Special Civil Application No. 9972 of 1996. The
petitioner in Special Civil Application no. 1227 of 1997
has clearly stated as a fact in para 3.8 of his petition
that the present applicant of this application, namely
Balubhai Bhagabhai Rada had filed that Special Civil
Application No. 9972 of 1996 in the nature of a public
interest litigation. The copy of the order passed in the
said petition annexed to this application by the
applicant also clearly indicates that that petition was
entertained in the public interest. In that Special
Civil Application no. 9972 of 1996, a grievance was made
by the present applicant that though action was initiated
against the petitioner who is the President of Junagadh
Municipality, in Special Civil Application No. 1227 of
1997, in the month of February,1996, the Director of
Municipalities, Gujarat State has not given any final
decision on the said show cause notice issued by him
under section 37 of the Gujarat Municipalities Act, 1963.
Therefore, the Division Bench of this Court had directed
the Director of Municipalities to give his decision on
the said show cause notice issued by him under section 37
of the Gujarat Municipalities Act, 1963. Accordingly,
the Director of Municipalities has passed his order dated
3.2.1997 and therefore, the President Satiskumar Ahir has
filed this Special Civil Application no. 1227 of 1997 to
challenge the order of Director of Municipalities passedo
on 3.2.1997 by which he has been removed from the office
as a councillor of Junagadh Municipality.
4.If the nature of proceedings which are
initiated against the petitioner in Special Civil
Application No.1227 of 1997 are seen, then it should be
quite clear that in the said proceedings, the present
applicant in this civil application no. 1689 of 1997 was
not a party. If the nature of the proceeding as
contemplated by section 37 is also taken into
consideration, then it could not be said that he is
either a necessary or a proper party to the initiation of
proceedings against the petitioner in Special Civil
Application no.1227 of 1997. It could not be said that
he is a proper or necessary party for a proceeding to
challenge the order passed under section 37 of the
Gujarat Municipalities Act, 1963. Merely because the
applicant happens to file the petition no. 9972 of 1996,
it could not be said that he is a necessary party to the
proceeding of Special Civil Application no. 1227 of 1997
which is before this Court. The nature of the
proceedings of Special Civil Application No. 9972 of
1996 was quite different proceeding against the
petitioner. There as a citizen the applicant before me
had moved the High Court to exercise the powers of the
High Court under Article 226 of the Constitution for
issuing the direction to the Director of Municipalities
to pass a final order in the proceedings initiated by him
under section 37 of the said Act. The learned advocate
for the applicant Mr. Rawal urged before me that the
applicant had filed that petition no. 9972 of 1996 as a
councillor of Junagadh Municipality. But if the said
proceeding is taken into consideration, then it would be
quite clear that no provisions of Gujarat Municipalities
Act, 1963 or any other Act had conferred upon him any
powers to move such an application before the High Court,
but that application was entertained as an application by
a citizen seeking a writ of mandamus to direct the
director of Municipalities to pass an appropriate final
order. Merely because the applicant happens to be a
municipal councillor, it could not be said that the said
petition by him was entertained or allowed. The said
petition was allowed because of inaction on the part of
the Director of Municipalities in not passing the final
order in the proceeding initiated by him. Therefore, the
said Special Civil Application NO. 9972 of 1996 has no
bearing on the controversy which is involved in Special
Civil Application no. 1227 of 1997. Therefore, merely
because the applicant was the petitioner in Special Civil
Application NO. 9972 of 1996, he could not be permitted
to be joined as a party in this special civil
application.
5.Thus, in view of the nature of the
proceeding of Special Civil Application no. 1227 of 1997,
the present applicant could not be said to be either a
necessary or a proper party to the said proceeding.
There may be political rivalry between the parties. , But
the existence of political rivalry between political
parties could not be a foundation allowing a party to
appear in a proceeding in which he could not be a
necessary or proper party. I therefore, reject this
application with no order as to costs.
(S.D.Pandit,J)