ORDER
1. As per order dated December 3, 1988, the petition has been rejected stating that reasons will be recorded later on Nov the reasons for rejecting the petition are stated herein below
2. Petitioner is a Councillor of Jambusar Municipality. Respondent Nos. 3 and 4 are also councillors of the said Municipality. Respondent No. 3 is the son of respondent No. 4. Wife of respondent No. 3, Smt. Jayshriben Shah is serving as teacher in the school run by the Municipality and she receives salary from the Municipality as teacher. It is contended by the petitioner that wife of respondent No. 3, and respondents Nos. 3 and 4 who are councillors of the Municipality are staying together and are messing together under the same roof and that they are members of the same family. Therefore the petitioner submitted an application before the Collector, Bharuch, respondent No. 2 herein, praying that respondents Nos. 3 and 4 have incurred disqualification specified in S. 11(2)(c) of Gujarat Municipalities Act, 1963, (for short ‘the Act) inasmuch as the respondents Nos. 3 and 4 have interest in employment of Smt.Jayshree Ben with the Municipality. Respondent No. 2, Collector after obtaining opinion of the Government Pleader, District Bharuch, decided the application as per his order dated July 15, 1988 and rejected the same. In his order he referred to the opinion of the Government Pleader and the relevant provisions of ‘the Act’. The petitioner preferred an appeal under S. 38(4) of the Act to Director of Municipalities (respondent No. 1 herein). The appeal has not been taken on file on the ground that the Collector has not passed a regular order and therefore the appeal is not competent. The aforesaid orders passed by respondent No. 1, Director of Municipalities and respondent No. 2, Collector, Bharuch are challenged by the petitioner in this petition.
3. Learned counsel for the petitioner has submitted that the Collector had relied upon the opinion of the Government Pleader and the same has been referred to in the order Annexure ‘B’, passed by him. In the submission of the learned counsel for the petitioner, the order is passed mechanically without applying the mind. While passing the order the Collector has solely relied upon the opinion given by the District Government Pleader. Therefore, the order is illegal and void as having not been passed by the Collector, who himself was required to apply his mind and take his own decision.
4. The aforesaid submission cannot be accepted for the simple reason that the Collector is not prevented from taking opinion of the Government Pleader. When reference is made to the opinion of the District Government Pleader in the order, it cannot be said that the Collector has not applied his mind. On the contrary fair reading of the order indicates that the Collector himself has looked into the facts of the case. Since it was a matter pertaining to certain law points with which the Collector may not be that much familiar, there was nothing wrong if he sought the opinion of the District Government Pleader. Simply because reference is made to the opinion of the Government Pleader in the impugned order, it cannot be said that the Collector has not applied his mind at all. The order indicates that there is conscious application of mind after obtaining the opinion of the Government Pleader as the Collector has after accepting the same acted upon it. Moreever the provisions of the Act referred to in the order clearly indicate that, the Collector has considered all the aspects of the case. Hence the order is eminently just and proper. There is no merit in the submission and therefore the same is required to be rejected.
5. Learned counsel for the petitioner submits that an appeal against the order passed by Collector is provided,under & 38(4) of the Act, even so the appeal has not been entertained at, all by respondent No. 1 on flimsy ground that the Collector has not passed a regular order. It is also submitted that the order has been passed by respondent No. 1 without, affording an opportunity of being heard, to the petitioner. The ground, of not affording an opportunity of being heard is also urged in respect of the order passed by the Collector. Therefore, it is submitted that both the orders suffer from the vice of contravention of principles of natural justice and hence the orders should be quashed and set aside.
6. As far as maintainability of appeal against the order passed by the Collector is concerned, the provisions of S. 38(4) of the Act make it abundantly clear that any person aggrieved by the decision of the Collector can appeal to the State Government. In the instant case the powers of the State Government are being exercised by respondent No. 1, Director of Municipalities and the appeal would certainly lie to respondent No.1 herein. Therefore, the order passed by respondent No. I (Annexure V) that the appeal is not maintainable and hence the same cannot be taken on file is certainly erroneous and illegal. Similarly it also appears that the Director as well as the Director of Municipalities have passed orders without affording an opportunity of being heard to the petitioner. Thus, both the orders suffer from the vice of contravention of principles of natural justice.
7. Learned counsel for the petitioner submitted that in view of the principles laid down by a Division Bench of this High Court in the case of Punjabhai Dahyabhai Patel v. Shah Jayantilal Manilal reported in 6 Guj LR 849, the appellate authority while deciding appeal, in such matters, is required to afford opportunity for adequately presenting the case before any decision is taken. Undisputedly the petitioner was interested in the application regarding the disqualification of respondents Nos. 3 and 4. Therefore, the Collector as ‘well as the Director of Municipalities ought to have granted opportunity of adequately presenting his case before arriving at the decision.
8. Learned counsel for the petitioner further submitted that since the orders are in violation of principles of natural justice this High Court should interfere with the same and quash and set aside the orders. He also relied upon a decision of the Supreme Court in the case of Olga Tellis v Bombay Muncipal Corp reported in AIR 1986 SC 180. He particularly relied upon and referred to para 47 of the judgment and submitted that Justice must not only be done but must manifestly be seen to be done and therefore, the order should be interfered with by this High Court.
9. In. in view of the aforesaid submissions made by the learned counsel for the petitioner, he was requested to look at, the relevant provisions of the Act and the admitted and undisputed facts of the case. The allegation against respondents Nos. 3 and 4 is that both of them are councillors of the Municipality. That respondent No. 4 is the father of respondent No. 3. They live and mess together. That Wife of respondent No. 3 is an employee in the school run by the Municipality. The afore said allegation is admitted by the other side. Nobody disputes the facts alleged by the petitioner herein. The order passed by the Collector is based on admitted and undisputed facts. Learned counsel for the respondents do not dispute these facts, but submits that even on admitted facts no action can be taken against respondents Nos. 3 and 4. The relevant provisions of law are contained in S. 11(2)(c) and in Section I 10)(a)(viii) of the Act. This part of the section reads as follows
11(2). No person-
(a) to (b) ………..
(c) who, save as hereinafter provided, has directly or indirectly, by himself or his partner, and, share or interest in any work done by order of a municipality or in any contract or employment with or under or by or on behalf of a municipality, or
(d) ………
may be a councillor of such municipality.
(3) A person shall not be deemed to have incurred, disqualification –
(A) under Clause (c) of sub-section (2) by reason of his-
(i) to (vii) …………….
(viii) merely being a relative of a person in employment with or under or by or on behalf of the municipality
The aforesaid provisions of S. 11 are to be read in its entirety. Sub-section (2) of Section 11 cannot be isolated and interpreted without reading sub-sec.(3) simultaneously Subsection (3)(A)(viii) clearly provides that simply because a relative of a person is in employment with or under or by or on behalf of the municipality, such person shall not incur disqualification, as provided under S. 11, sub-section (2)(c).
10. Faced with this legal position, learned counsel for the petitioner could not say that the decision of the Collector is in any way erroneous on merits since the facts are not disputed. Even apart from the decision of the Collector or that of the Director of Municipalities, I requested the learned counsel for the petitioner to submit the case on merits as if the application for praying for disqualification of respondents Nos. 3 and 4 is to be examined afresh. Even so he has not been able to point out to me that because wife of respondent No. 3 is in employment of Municipality as a teacher, respondents Nos. 3 and 4 both would incur disqualification. Thus on admitted and undisputable facts only one conclusion is possible and it is this that respondents Nos. 3 and 4 have not incurred disqualification on account of the allegations made against them by the petitioner herein.
11. In view of this position, the quashing and setting aside the orders passed by the Collector and the Director of Municipalities and remanding the matter to the Collector and/or to the Director of Municipalities for affording an opportunity of being heard to the petitioners and thereafter arriving at the decision in accordance with law would be an exercise in futility. It is settled principle of law that Courts do not issue futile writs. In the case of S. L. Kapoor v. Jagmohan, reported in AIR 1981 SC 136, the Supreme Court has observed as follows : –
“Where on the admitted and indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it not necessary to observe natural justice but because Courts do not issue futile writs.”
The aforesaid principle is laid down by the Supreme Court way back in the year 1980 (the decision in the case of S. L. Kapoor (supra) has been rendered on Sept. 18, 1980). There after in the case of Olga- Tellis (AIR1986 SC 180) (supra) on which heavy reliance is placed by the learned counsel for the petitioner, the Supreme Court has reiterated the aforesaid principles laid down by it in the case of S. L Kapoor (supra) and has in fact followed the same (see para 51 of the judgment). In the case of Olga Tellis (supra) the Supreme Court has held that before taking any action against the pavement dwellers and hawkers, the Commissioner was required to afford an opportunity to the petitioner to show cause why the encroachment committed by them on pavements and footpaths should not be removed. But it was further held that the opportunity which was denied by the Commissioner was granted by the Supreme Court in an emple measure and the Supreme Court, after considering the contentions of both the sides, was satisfied that the opinion of the Commissioner was justified in directing the removal of encroachment committed by the petitioners on pavements, footpaths or accessory roads. Thereafter the Supreme Court referred to the observations made by it in the case of S. L. Kapoor (supra). Thus it is abundantly clear that the principle laid down in the case of S. L. Kapoor (supra) is reiterated and re-affirmed by the five Judge Bench of the Supreme Court in the case of Olga Tellis (supra).
12. Following the aforesaid principle, the question arises: In the facts and circumstances of the case, is it necessary to issue writ to the respondents Nos. 1 and 2 (Director, of Municipalities and Collector) as prayed for? If yes, is it not an exercise in futility? The answer is that it would be an exercise in futility. Even the learned counsel for the petitioner has not been able to show anything whatsoever which may help to reach a conclusion that on the basis of admitted and indisputable facts, respondents Nos. 3 and 4 could ever have been disqualified to continue as councillors. Therefore it would be improper and unwise to exercise powers under Art. 226 of the Constitution inasmuch as it would be an exercise in futility.
13. In above view of the matter the petition fails and the same is rejected, as per the aforesaid reasons. The petition has already been rejected as per order 3-12-88. Reasons for rejecting the petition are indicated hereinabove. Notice discharged.
14. Petition dismissed.
