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CA/11764/2010 3/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION No. 11764 of 2010
In
SPECIAL
CIVIL APPLICATION No. 8670 of 2009
=========================================================
MAHESHBHAI
AMRATLAL PATEL & 5 - Petitioner(s)
Versus
STATE
OF GUJARAT & 5 - Respondent(s)
=========================================================
Appearance :
MR
NIRAV K PADHIYAR for
Petitioner(s) : 1 - 6.
MR PRAKASH JANI GOVERNMENT PLEADER for
Respondent(s) : 1 - 3.
MR HS MUNSHAW for Respondent(s) : 4,
MR
SHALIN N MEHTA for Respondent(s) : 5,
None for Respondent(s) : 6,
PASSED BY THE
O=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 01/10/2010
ORAL
ORDER
1.0
By way of present application, the applicants have prayed for
following relief/s:
(A) Your
Lordships may be pleased to allow this application and stay the
implementation, further execution and operation of order dated
07.08.2009 passed by the opponent No.2-herein bearing No.
NPaNi/Legal/Palanpur/Section-37/S.R.No. 8/594/09 till the final
disposal of Special Civil Application No. 8670 of 2009.
(B) During
the pendency and final disposal of this application, your Lordships
may be pleased to stay the implementation, further execution and
operation of order dated 07.08.2009 passed by the opponent
No.2-herein bearing No. NPaNi/Legal/Palanpur/Section-37/S.R. No.
8/594/09 till the final disposal of Special Civil Application No.
8670 of 2009 on any conditions that may be deem fit and proper by
this Court.
(C)
Your Lordships may be pleased to pass such other and further order
in the interest of justice which may be deemed fit to this Hon’ble
Court.
2.0 This
petition being Special Civil Application No. 8670 of 2009 has been
preferred in the year 2009. On 27.11.2009, this Court has passed the
following order:
1. RULE.
Learned counsel appearing for respondents waive service.
2. By
way of interim relief, the petitioners have sought stay against
implementation and execution of impugned order dated 07.08.2009,
whereby the petitioners are removed from office of the Councilor and
as President of respondent no.4-Municipality. Even as such prayer for
interim relief was pressed and learned senior advocate, Mr. Nanavati
was heard in extenso, it was submitted by learned Additional
Advocate General Mr. Mehta, appearing for the State, that the
impugned order was already implemented and fresh election for filling
up the vacant seats was being held and the programme therefor was to
be declared on 30th November,2009. Even otherwise, the
petition is admitted for consideration of a few larger issues raised
by the petitioners including the issue as to whether the authorities
were required to consider, in the facts and circumstances of each
case, the gravity of the misconduct or any disgraceful conduct of the
councilor and decide upon the effect which may not necessarily be
removal from office as a councilor but removal from particular
committee.
3. Having
heard learned counsel and perused the impugned order, it is found to
be not a fit case in which interim relief with implication of a
mandatory nature could be granted. Therefore, the prayer for interim
relief is rejected and the petition is ordered to be listed for final
hearing in the third week of January,2010.
3.0 The
aforesaid order dated 27.11.2009 was carried in Letters Patent
Appeal being Letters Patent Appeal No. 2351 of 2009 wherein the
Hon’ble Division Bench of this Court on 04.12.2009 allowed the appeal
and restrained the respondent authorities from holding elections of
the office of Councilors of Palanpur Municipality till final disposal
of Special Civil Application No. 8670 of 2009. Against the order
dated 04.12.2009, the respondent authorities approached the Hon’ble
Supreme Court by way of Special Leave to Appeal (Civil) No. CC 7662
of 2010. the Hon’ble Supreme Court has passed the following order:
Delay
condoned.
We
see from the impugned order that direction had been issued by the
Division Bench that the case shall be disposed on on 14th
December, 2009. The learned counsel for the petitioner however
informed us that matter is still pending. We accordingly request
the Hon’ble Judge before whom the matter is pending to dispose of
the writ petition within a period of three months from the date of
the receipt of the order.
The
Special Leave Petition is disposed of.
4.0.
In view of the above, the order of the Division Bench was not
disturbed since matter is fixed on 04.12.2009. Thereafter Civil
Application was moved on 27.09.2010 in which following order was
passed on 30.09.2010.
To
be listed along with the main matter on a separate Board on
01.10.2010.
It
is, however, made clear that if the matter could not be taken up for
final hearing on the fixed date, then it shall be open to the Court
to pass an order permitting the applicants to file the forms for
contesting the ensuing elections.
5.0 The
matter was adjourned to today at the request of learned Additional
Advocate General. Today because of paucity of time, the matter could
not be taken up for hearing. Now the election programme is produced
on record.
6.0 In
that view of the matter, if no relief is granted at this stage
irreversible situation is likely to be arisen inasmuch as the last
date of acceptance of form for contesting the election is
04.10.2010, the scrutiny is fixed on 06.10.2010 and elections are to
be conducted on 21.10.2010. In that view of the matter, to protect
the interest of both the sides, the petitioner will be allowed to
submit their form for contesting the election. The Nomination papers
will be accepted and it will be scrutinized. The nomination papers
may not be rejected on the ground that the petitioners are
disqualified under Section 37 of the Gujarat Municipalities Act or
removed under Section 37 of the Gujarat Municipalities Act. However,
it is clarified that acceptance of nominations will be subject to
the result of the main petition.
7.0 It
is also made clear that the even if nomination papers are accepted
pursuant to this order, and if ultimately the applicants are not
eligible to contest the election, the nomination forms will be
deemed to be rejected and no further contention will be accepted
by either side. The Civil Application stands disposed of. Direct
service is permitted today.
8.0 The
main matter being Special Civil Application No. 8670 of 2009 is
peremptorily fixed on 04.10.2010 at 2.30 p.m.
(K.S.JHAVERI,
J.)
niru*
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