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Patel Raojibhai Kalidas Vs. State of Gujarat Sachivalaya, Ahmedabad - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberSpl. Civil Appln. No. 269 of 1963
Judge
Reported inAIR1964Guj51
ActsConstitution of India - Article 226; Bombay District Municipal Act - Sections 23(7)
AppellantPatel Raojibhai Kalidas
RespondentState of Gujarat Sachivalaya, Ahmedabad
Appellant Advocate J.C. Patel and; G.C. Patel, Advs.
Respondent Advocate B.R. Sompura, Asst. Govt. Pleader and; M.G. Doshit, Addl. Govt. Pleader
Cases ReferredUniversity of Ceylon v. Fernando
Excerpt:
civil - removal - article 226 of constitution of india and section 23 (7) of bombay district municipal act - removal order under section 23 (7) passed against petitioner challenged - materials relating to charge against petitioner not properly considered by authority - order passed mechanically without applying mind - no indication in order as to what inquiry was made and what facts and records considered before passing impugned order - sufficient evidence to show that petitioner not afforded reasonable opportunity to meet case against him - impugned order set aside as void. - - municipalities act which itself clearly laid down the procedure which was to be followed in passing the order of super session of the board. to brand a candidate with a stigma of adoption of unfair means at.....order no. dtm 1762/l where as it was brought to the notice of the government of gujarat that shri ravjibhai kalidas patel, president, anand municipality, anand (hereinafter referred to as 'the president') has, in his capacity as the president, 1. never allowed the vice-president to carry out routine work as per rule 77. 2. moved government and consulting surveyor to government for several changes in the town planning scheme without the consent of the municipality in its general meeting. 3. withdrawn the authorisation on his own authority although the councillors shri f.j. patel and shri v.p. gandhi were authorised by the municipality in its general meeting to take steps for expeditious execution of the drainage scheme. 4. moved government to change the site of the slaughter house without.....
Judgment:
ORDER

No. DTM 1762/L where as it was brought to the notice of the Government of Gujarat that Shri Ravjibhai Kalidas Patel, President, Anand Municipality, Anand (hereinafter referred to as 'the President') has, in his capacity as the President,

1. Never allowed the Vice-president to carry out routine work as per rule 77.

2. Moved Government and consulting surveyor to Government for several changes in the Town Planning Scheme without the consent of the Municipality in its general meeting.

3. Withdrawn the authorisation on his own authority although the councillors Shri F.J. Patel and Shri V.P. Gandhi were authorised by the Municipality in its general meeting to take steps for expeditious execution of the drainage scheme.

4. Moved Government to change the site of the slaughter house without the consent of the Municipality in its general meeting though the previous site was approved by the Municipality.

5. On his own authority imposed and recovered fine and confiscated the goods of the dealers having small cabins and hand carts running their business on municipal land, and had also not complied with the Collector's directions to refund the fine.

6. Maliciously corrected resolution No. 155 of 26-8-1961 of the general meeting and kept the minute hook in his possession. He also terminated the services of Honorary Lady Doctor on me strength of a forged resolution, end subsequently reappointed her on the intervention of the Collector.

7. In the requisitioned special general meeting of 20-9-1961 even though some of the councillore lodged protests against his action in correcting the resolutions, he ruled cut the objection under the authority of Rule 8, though that rule was not applicable.

8. Filed the requisition dated 28-6-1961, 16-1-19621 and 5-2-1962 given by F.J. Patel and other four councillors under Section 36(2) of the Bombay District Municipal Act, 1901, instead of calling the special general meeting of the Municipality.

9. Sanctioned long leave, of Municipal overseer Shri D.C. Bhatt without appointing a substitute in his Place, although the Public Works Committee had under its resolution No. 339 dated 13-12-1961 resolved to appoint one Shri U.R. Patel, D. C. E.

10. Did not place the following resolutions before the general meeting of the municipality for a very long time.

(a) The P. W. D. Committee resolution No. 24 and 28-3-1962 dated, 21-4-1962 for flush latrines in Mangalpur

(b) The P. W. D. Committee resolution No. 546 dated 28-3-I962 regarding water course near Gamdi Vat.

(c) The P. W. D. Committee resolution No. 503 dated 6-3-1962 to acquire land for school at Mangalpur.

(d) The P. W. D. Committee resolution No. 415 dated 18-1-1962 for construction of a school building at Lotia Bhagol.

(e)' The dispensary committee resolutions dated 27-11-1961 for passing a bill for procuring tubs for latrines.

(f) The dispensary committee resolution No. 244 dated 4-10-1961 regarding supply of dress to sanitary Inspector.

(g) Levy of fines for putting cabins and not refunding the same in spite of Collector's instructions. '

And whereas the President was given 3 notice in writing, on the 9th January 1963, to show cause why he should not 6e removed from his office as president for misconduct and neglect of duty.

And whereas after considering the reply of the President' to the said notice, the Government of Gujarat have found the aforesaid allegations to be true and the acts and omissions involved in the allegations are such as to render Shri Ravjibhai Kalidas Patel liable to be re-moved from file office of the president for misconduct and neglect of duties.

Now, therefore, in exercise of the powers conferred by Sub-section (7) of Section 23 of the Bombay District Municipat Act: I1901, (Bombay III of 1901) the Government of Gujarat hereby removes Shri Ravjibhai Kalidas Patel am his office as the President of the Anand Municipality, Kalol from the date of receipt of this order'

7. This order has been passed under Sub-section (7) of Section 23 of the Bombay District Municipal Act, 1901. That section runs' as under:

'(7)' The term of office of every president and every vice-president shall cease on the expiry of his term of office' as--councillor. Every president who is elected by the Municipality and every vice-president shall be removable from his office as such president or vice-president By the municipality by a resolution passed to that effect, provided- that three-fourths of the whole number of the councillors of the municipality vote in favour of such resolution and provided further that before such resolution is passed the president or vice-president is given a reasonable opportunity of showing cause why such a resolution should not be passed. Every president and every wee-president should be removable from his 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 no! be eligible for-re-election during the remainder of the term of office of the municipality.' It would thus appear that Section 23 Sub-section (7), contem-'plates the removal of the president in two ways.

(1) removal of the elected president by the municipality by a resolution which must be passed after giving him a reasonable opportunity of showing cause why such a resolution should not be passed against him, and

(2) removal of the president by the State Government for misconduct or neglect or incapacity to perform his duties.

The first type of removal does not mention any grounds to removal whereas the second type provides for me existence of specific grounds on which the State Government can remove the president of the municipality. The effect of such an order as provided in the section is that it removes the president from his office and renders him ineligible for re-election Curing the remainder of me term of office of the municipality. It is true, as contended by the learned Assistant Government Pleader, that the disqualification does not affect the right of such a person to act as a councillor, but there is no doubt that the result of the order of removal passed under Section 23(7) is drastic in effect. It not only deprives the person so removed of his right to act as the president and disqualifies him to be re-elected as president of the municipality tin the expiry of his term as a councillor out also attaches a stigma of misconduct and neglect of duties or inefficiency to perform the duties as the president of the municipality.

8. Having considered the provisions contained in Section 23 Sub-section (7) and its effect, we may now proceed to consider whether the action taken under that section is administrative or quasi-judicial in character, what is a quasi-judicial body is defined by Atkin L. J., in Rex v. Electricity Commissioners, 1924-1 KB 171 as under :-

'Whenever any body of persons having legal authority to determine questions affecting rights of subjects, and having the duty to act judicially act in excess of their legal authority they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs'.

This definition is referred to at page 116 in Radheshyam Khare v. State of. Madhya Pradesh : [1959]1SCR1440 and is followed by the following observations:

'This definition was accepted as correct in Rex v. London County Council, 1931-2 KB 215 and many subsequent cases both in England and in this country. It will be noticed that this definition insists on three requisites each of which must be fulfilled in order that the act of the body may be quasi-judicial act, namely, that the body of persons (1) must have legal authority, (2) to determine questions affecting rights of parties, and (3) must have the duty to act judicially. Since a writ of certiorari can be issued only to correct the errors of a Court or a quasi-judicial body, it would follow that the real and determining test for ascertaining whether an act authorised by a statute is a quasi-judicial act or an administrative act is whether the statute has expressly or impliedly imposed upon the statutory body the duty to act judicially as required by the third condition in the definition given by Atkin L. J. Therefore in considering whether in taking action under Section 58-A the State Government is to be regarded as functioning as a quasi-judicial body or a mere administrative body It has to be entertained whether the statute has expressly or impliedly imposed upon the State Government a duly to act judicially'.

Another pertinent observation cited in the judgment of the learned Chief Justice in the Supreme Court case from the judgment of Lord Hewart C. J. in R. v. Legislative Committee of the Church Assembly, (1928) 1 KB 411 may also be referred to:

'In order that a body may satisfy the required test it is not enough that it should have legal authority to determine questions affecting rights of subjects; there must be superadded to that characteristic the further characteristic that the body has the duty to act judicially '.

In a later decision of the Supreme Court in Board of HighSchool and Intermediate Education, It. P. Allahabad v.Ghansham Das : AIR1962SC1110 .

'The first question therefore which falls for consideration is whether-and duty is cast on the committee under the Act and Regulations to act judicially and therefore it is a quasi-judicial body. What constitutes 'a quasi-judicial act' was discussed in the Province of Bombay v. Khushaldas S. Advani : [1950]1SCR621 . The principles have been summarised by Das. J. (as he was then) at p. 725 (of SCR) : (at p. 260 of AIR) in these words:

'The principles, as I apprehend them are:- (1) that if a statute empowers an authority, not being a Court in the ordinary sense, to decide disputes arising out of a claim made by one party under the statute which claim is opposed by another party and to determine the respective rights of the contesting parties who are opposed to each other, there is a lis and puma facie and in the absence of anything in the statute to the contrary it is the duty of the authority to act judicially and the decision of the authority is a quasi-judicial act; and (ii) that if a statutory authority 'has power to do any act which' will prejudicially affect the subject, then, although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi-judicial act provided the authority is required by the statute to act judicially.

In other words, while the presence of two parties besides the deciding authority will prima facie and in the absence of any other factor impose upon the authority the duty to act judicially, the absence of two such parties is not decisive in taking the act of the authority cut of the category of quasi-judicial act if the authority is nevertheless required by the statute to act judicially'. The paragraph next after the passage quoted above indicates how the inference whether the authority acting under a statute has the duty to act judicially is to be made in the absence of an express provision to that effect. The relevant observations on this question are at page 1113 of the judgment:

'These principles have been acted upon by this Court in later cases: See Nagendra Nath v. Commissioner of Hills Division : [1958]1SCR1240 G. Nageswara Rao V. Andhra Pradesh State Road Transport Corporation : AIR1959SC308 and Shivaji Nathu-bhai v. Union of India : [1960]2SCR775 . Now it may be mentioned that the statute is not likely to provide in so many words that the authority passing the order is required to act judicially; that can only be inferred from the express provisions of the statute in the first instance in each case and no one circumstance alone will be determinative of the question whether the authority set up by the statute has the duty to act judicially or not. The inference whether the authority acting under a statute where it is silent has the duty to act judicially will depend on the express provisions of the statute read along with the nature of the rights affected, the manner of the disposal provided, the objective criterion if any to be adopted, the effect of the decision on the person affected and other indicia afforded by the statute. A duty to act judicially may arise in widely different circumstances which it will be impossible and indeed inadvisable to attempt to define exhaustively: (Vide observations of Parkar J., in R. v. Manchester Legal Aid Committee, 1952-2 QB 413'.

It would thus appear from the decision of the Supreme Court referred to above that we must turn to the pro-, visions of Section 23(7) of the Bombay District Municipal Act to determine whether the State Government while acting under that section has the duty to act judicially, In determining this question the totality of the circum-stances should be examined and these circumstances as indicated in the judgment of the Supreme Court are -.-

(1) Express provision, if any, in the statute,

(2) Nature of the rights affected,

(3) Manner of disposal provided,

(4) Objective criteria if any to be adopted,

(5) Effect of the decision on the person, affected,

(6) Other indicia afforded by the statute -

9. Another important passage in the Supreme .Court judgment under reference is at page 1115:-.

'We thus see that the Committee can only carry cm its duties under Rule 1(1) by judging the materials, placed before it. It is true that there is no lis in the present case, in the sense that there are not two contesting parties before the Committee and the matter rests between' the committee and the examinee; at the same time considering that materials will have to be placed before the Committee to enable it to decide whether action should be taken under Rule 1(1), it seems to us only fair that the examinee against whom the committee Is proceeding should also be heard. The effect of the decision of the Committee may in an extreme case blast the career of a young student for life and in any case win put a serious stigma on the examinee concerned which may damage him in later life. The nature of misconduct which the committee has to find under Rule 1 (1) in some cases is of a serious nature, for example, impersonation, commission of fraud, and perjury; and the committee's decision in matters of such seriousness may even lead in some cases to the prosecution of the examinee in Courts. Considering, therefore, the serious effects following the decision of the committee and the serious nature of the misconduct which may be found in some cases under Rule 1 (1), it seems to us that the Committee must be held to act judicially in circumstances as these. Though therefore there is nothing express one way or the other in the Act or the Regulations casting a duty on the Committee to act Judicially, the manner of the disposal, based as it must be on materials placed before it, and the serious effects of the decision, of the Committee on the examinee concerned must lead to the conclusion that a duty is cast on We committee to act judicially in this matter particularly as it has to decide objectively certain facts which may seriously affect the rights and careers of examinees, before It can take any action in the exercise of its power under Rule 1 (1). We are therefore of opinion that the Committee when it exercises its power under Rule 1 (l) is acting quasi-judicially and the principles of natural justice which require the other party, (namely, the examinee in this case) must be heard, will apply to the proceedings before the Committee. This view was taken by the Calcutta High Court in Dipa Pal v. University of Calcutta : AIR1952Cal594 and B. C. Das Gupta v. Bijoyranjan Rakshit AIR 1953 sal ziz in similar circumstances and is in our opinion correct'.

These observations show that there may not be a lis between the two contending parties, but if before arriving at a finding materials placed before the deciding authority have to be judged and if facts have to be decided objectively and the decision has serious consequences, the exercise of the powers by the authority will have a quasi-judicial character although there is nothing one way or the other in the statute casting a duty on the authority to act judicially. It must however be remembered that these circumstances are only some of me relevant indicia to show the nature of the action taken.

10. Bearing these principles in mind what is the position in the present case? There is no express provision in the section prescribing any procedure for or manner of inquiry or giving a right of hearing to the president who is sought to be removed. There is no lis to be tried between the two contesting patties but these two circumstances are not the only factors in which the determinative character of the action taken could be judged. If we look to the nature of the rights of the petitioner which would be affected by his removal, it appears that he has been elected by the electorate as a councillor and again by the councillors as president of the municipality. He has assumed office in March 1961 and has been discharging the functions of the president since then. If removed from his office he will be disqualified and rendered ineligible to be elected as president for the remaining term of the municipality. In addition, a stigma of misconduct and neglect of duties, which in this case includes a serious charge of using a document containing a forged resolution, will attach to the petitioner and his career as the president will be barred and his social status adversely affected this removal will also involve a degradation in the public eye-

11. It also appears that the fundamental facts on which a decision could be taken under Section 23(7) have been prescribed by the section itself. These facts would require to be determined objectively and to be judged on evidentiary materials. The fact 'that the section provides for giving an opportunity of showing cause to the president before his removal by the general body or the councillors of the municipality but does not similarly provide for such an opportunity in case the president is sought to be removed by the State Government cannot in the circumstances be called a deliberate omission so as to make the action of the State Government taken under Section 23(7) administrative in nature. In the case of removal by the councillors, the section does not prescribe any specific grounds on which an action could be taken against the president. Since such an action could be taken generally under that part of the section without a specific charge, It might have been felt necessary, to make a specific provision for giving an opportunity of showing cause. But where action has to be taken by the Government, specific grounds have been prescribed in the section on which the State Government could take, action, these grounds have to be objectively adjudged before a decision of removal can be taken by the Government. This objective appraisal would also involve the consideration of evidentiary materials. Though therefore the latter part of Section 23 (7) is silent as to the function being quasi-judicial as against the first part of the subsection where the legislature has been clear by providing for a reasonable opportunity, considering the various factors mentioned above, it would be legitimate to Impute to the legislature the intention that the function performed under the latter part of this sub-section was to be treated as a quasi-judicial function. (12) The aforesaid discussion shows that(l) Before an action could be taken under Section 23 (7), the grounds of misconduct, neglect or inefficiency to perform the duties attached to the post of the president of the Municipality must exist.

2. These grounds or fundamental facts would require an objective determination by the authority acting under this section,

3. Such a determination will involve a const duration, of the evidentiary materials placed before the authority.

4. The decision to remove the president from his office will involve serious consequences such as inability to be elected as a president for the remaining term of the municipality, and

(5) a stigma of misconduct, neglect of duties or inefficiency, as the case may be, will attach to the career of the president.

13. The learned Assistant Government Pleader urged that an action taken under Section 23 (1) was administrative in character as it was taken by the State Government in the exercise of its supervisory jurisdiction. The learned Assistant Government Pleader drew our attention to several sections of the Bombay District Municipal Act which indicate that the State Government was given by the Act powers of control and supervision over the administrative affairs of the municipality. This is true, but that does not necessarily mean that an action of removal of an elected president from his office which could be taken if certain specific grounds existed and which would require an objective determination of facts and would brand him with a stigma is an administrative act. The determination of the question whether such an action is administrative or quasi-judicial in character must depend on the circumstances attendant upon the action and its consequences.

14. The learned Assistant Government Pleader relied on the case of Brij Lal v. State of Patiala , which was a case in respect of an action superseding the Municipal Committee under Section 238 (1) of the Punjab Municipal Act. That case was decided having regard to the provisions contained in Section 238 (I) of the Punjab Municipal Act and to the object of the Act in empowering the State Government to take action under that section. Similarly, the two cases cited by the learn ed Assistant Government Pleader, namely, Bhalchandra Krishnarao v. State of Bombay, 59 Bom LR 930 (at Nag), and Dr. Pyare LaI v. State of uttar Pradesh, Lucknow : AIR1953All195 , were also cases decided under the particular provisions of the relevant Acts under which action was taken by the authorities. The former was a case where a notification was issued by the State Government under Section 53-A of the Central Provinces and Bearer Municipalities Act, 1922, appointing an executive officer of the Municipal Committee for a period of eighteen months on the ground 'of incompetence of the Municipal Committee to perform the duties imposed upon it, and the latter was a case arising under Section 30 of the U.P. Municipalities Act which itself clearly laid down the procedure which was to be followed in passing the order of super session of the Board. These cases therefore would have no application to the facts before us.

15. The learned Assistant Government Pleader also contended that Section 23(7) of the Bombay Municipal Act was merely an enabling section giving discretionary powers to the State Government and did not contemplate any punitive consequences. According to the learned Assistant Government fearer an action taken under mat section merely relieved the president of his duties provided under the Act without attaching any stigma on him and such an order therefore was administrative in character. But the learned Assistant Government Pleader overlooks the fact that the president, on being removed, besides losing his status suffers from a disability and loses his right to be elected as president of the municipality for the remaining term of the municipality. Moreover, such an action involves a criticism on his career as a president of the Municipality.

16. During the course of the arguments, reference was' made to two decisions of the Calcutta High Court, AIR 195Z cal 594 and : AIR1953Cal212 these two cases do not negative the necessity of giving an opportunity of defence when the action taken against the eloquent involves a stigma, in this context reference may be made to the fallowing observation at page 596 of the Judgment In AIR 1952 Cal:

'In eases where breaches of discipline are detected by the Invigilators or other officers present in the examination hall and candidates concerned are expelled from the hall or are otherwise dealt with, question of any enquiry or investigation upon notice to the candidates may not arise. But where no case of breaca of discipline is actually detected but subsequently upon examination of the answer papers the examiners come to entertain suspicion about adoption of unfair means by particular candidate or candidates and the Examination Board lis to consider such cases and come to a determination as to the nature of the offence committed and has to apportion the penalty which can properly be inflicted upon the delinquents, it Is only fit and proper that the party arraigned should have an opportunity to defend himself and to offer an explanation, if any. To brand a candidate with a stigma of adoption of unfair means at the examination or in other words finding her guilty of dishonesty or misconduct and thereby causing an irreparable injury to the character and reputation of such candidate, without giving him or her any opportunity to explain, is contrary to' all notions of justice and good sense,'

17. For the reasons aforesaid, we have no hesitation in coming to the conclusion that the circumstances attendant upon and the consequences following the taking of an action under Section 23(7) of the Bombay District Municipal Act indicate and justify the inference that there is a duty cast upon the authority taking action under that section to act judicially and the action taken under that section is quasi-judicial in nature.

18. This takes us to the question whether the petitioner has been given a fair and a reasonable opportunity to meet the case against him and whether rules of natural justice have been complied with before the impugned order was passed. Before we deal with that question on merits, it would be necessary to consider the nature and the extent of the right of the petitioner of having such an opportunity before the final order was passed against him. No hard and fast rule can be laid down as regards the scope and extent of such a right as that would depend on the nature and circumstances of each case. The requirements of natural justice are not immutable and are bound to vary with the facts of each particular case, depending upon the character of the deciding body, the nature of the inquiry, the effect of the adjudication and other relevant factors. The question whether in a given case the rules of natural justice have been complied with cannot be approached with any preconceived notions or any set formulae but must be Judged in the light of the rules and provisions of the Statute under which the statutory body functions. Where there-are no such rules, the deciding authority would, it appears, be at liberty to fix the procedure to be followed and hold an inquiry in a manner which would enable him to fairly decide that the charges against the delinquent have been established or not. Such an inquiry must of course, include the consideration by the functioning authority of the defence of the delinquent and the application of the mind of the authority to the facts placed before him. These principles have been differently expressed is various decisions on this question and it is needless to multiply references to them. We may however refer to a few relevant observations from some of the decisions to which reference was made before us in the course of arguments. In the case of Local Government Board v. Arlidge, 1915 AC .120, which was relied upon by Mr. Patel we find the following observations:

'In determining whether the principles of substantial, justice have been complied with in matters of procedure, regard must necessarily be had to the nature of the Issue to be determined and the constitution of the tribunal. The general tests to be applied have been expressed in two cases which have come before this House, Spackman v. Plumstead Board of Works, (1885) 10 AC 239 and Board of Education v. Rice, (1911) AC 179. In the earlier case of (1885) 10 AC 229, the question raised was whether the certificate of the superintending architect was conclusive in fixing the general line of building under the Metropolis Management Act, 1862. Lord Selborne, in the course, of his opinion states: 'No doubt in the absence of special provisions as to how the person who is to decide is to proceed, the law will imply no more than that the substantial requirements of justice shall not be violated. He is not a-Judge in the proper sense of the word, but he must give the parties an opportunity of being heard before mm and stating their case and their views. In me present case there are special provisions for procedure, and the Local Government Board have, in my opinion,. given the parties a fair opportunity of being heard before them and stating their case and views. In the later case of 1911 AC 179, it was held that the Board of Education had not determined the questions submitted to them. It was on this ground that the order of the Board was quashed and a mandamus was issued commanding the Board to determine the real questions submitted for determination, in expressing his opinion TO the House the Lord Chancellor stated his views on the propriety of procedure : 'In such cases the Board of education will have to ascertain the law and also to ascertain the facts. I need not add that in doing either they, must act in good faith and fairly listen to both sides, for that is a duty lying upon anyone who decides anything. But I do not think they are bound to treat such a question as though it were a trial. They have no power to administer an oath and need not examine witnesses. They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view'.'

We 'may also refer to the following observations of the Privy Council in 1960-1 All ER 631 University of Ceylon v. Fernando :

'As no special form of procedure was prescribed, it was for the vice-chancellor to determine the procedure to be followed, as he thought best, subject to the obvious implication that some form of inquiry must be made such as would enable him fairly to determine whether he should hold himself 'satisfied that the charge in question had been made out.'

19. To sum up, the principles which must befollowed in an inquiry by a body exercising quasi-judicialfunctions are:

(1) The delinquent must be given a fair opportunity to meet the accusation made against him and to state his defence.

(2) Some inquiry must be made such as would enable he deciding authority fairly to determine whether hewas satisfied that the charge in question was made out.

(3) In cases where there are prescribed rules of procedure, the rules must generally be followed. Where there are no such rules, the authority can fix his awn procedure, not contrary to the rules of natural justice.

20. Now, let us see what is the position in the case before us. In his petition the petitioner has made averments that there has been he proper inquiry, that no evidence has been led before the authority who passed the order; that the order was passed on information gathered at the back of the petitioner and that it was passed by the authority without applying his mind on the facts of the case. The affidavit in reply filed on behalf of the respondent State is made by Mr. Kaji, who is the Undersecretary to the Government of Gujarat, Health and Industries Department. The learned Assistant Government Pleader stated before us that Mr. Kaji was not the officer who held the inquiry. The affidavit filed by him does net state that the deponent had personal knowledge about the ease or tne inquiry held in the matter, the order was passed (sic) nor does it state the source of the Information on which the affidavit in reply was based. This affidavit, therefore, cannot be considered sufficient to deny the averments made by the petitioner in his petition. There is no indication in the order as to what inquiry was made and what facts and records were considered before passing the order. From the affidavit filed on behalf of the State, it is not possible to say with definiteness whether any and it so what Inquiry was held before the impugned order was passed. On the other hand, there is sufficient internal evidence to show to the contrary and to indicate that the petitioner was not afforded a reasonable opportunity of meeting the case against him. If we look to the show cause notice, Annexture 'A' to the petition, allegation No. 6 mentioned therein is as under:

'You as the president, on your own authority imposed and recovered fine and confiscated the goods of the dealers having small cabins and hand carts running their business on Municipal land. You have also not complied with the Collector's directions to refund the fine.'

To this allegation the reply of the petitioner was that lie had acted according to the provisions of the Bombay District Municipal Act and the rules framed there under and that 50% of the amount that was recovered by him was paid to the Collector! under proper vouchers. In his reply to the show cause notice (annexure '8' to the petition), on the question of non-compliance with the directions of the Collector to refund the fine, the Petitioner stated that:

The Collector has not asked at any time to refund the said recovery of fine as stated in the notice. To, have my reply to the said point I humbly submit mat I may kindly be furnished a copy of the same if at all addressed to the Anand Municipality'. It would be seen that the allegation No. 5 in the show cause notice in fact contains two allegations:

(1) about the recovery of fine and confiscation of goods, and

(2) about non-compliance with the directions of the Collector to refund the fine.

The petitioner in his reply to the show cause notice specifically demanded 'a copy of the letter, if any, containing such directions from the Collector. But no reply was given to him nor was a copy supplied. It Is impossible to say what evidentiary material was utillisea by the authority on which reliance was placed by him in passing the order.

21. Another such internal evidence is supplied by the decision arrived at on allegation No. 7 in the show cause notice. That allegation is in the fallowing terms:

'In the requisitioned special general meeting of 20-9-1961 some of the Councillors Iodged the protest against your action in correcting the said resolutions but you ruled out the objections under the authority of Rule 8, though that rule was not applicable.'

To this allegation the reply of the petitioner was that no protest was ruled out under Rule 8 but it was ruled out under Rule 5. The reply filed by the petitioner to this allegation raised the following defence in unambiguous words:

'I am asked to meet with the reply that I ruled out the objections under the authority of Rule 8 in we requisitioned special general meeting of 20-9-61 wherein some of the councillors lodged the protest against my action in correcting the said resolution and saying that Rule 8 was not applicable which I applied in the case. I perused the' whole proceeding of 20-9-61 and found that I have not ruled out any protest under Rule 8. It is also a matter of regret to suggest as to how and on what inferences I am asked to explain the position when in fact no such protest is ruled out under Rule 8. In tact the protest is ruled out under Rule 5 and the Government should appreciate that whatever is done is in consonance with the Municipal Rules.'

Now, if we look to the minutes of the proceedings dated 20th September 1961 which has been filed with the annexures to the petition, it clearly shows that the protest was ruled out under Rule 5. Strangely enough the finding on this' issue was:

'In the requisitioned special general meeting or 20-9-1961 even though some of the councillors lodged protests against 'his action in correcting the resolutions, he ruled out the objection under the authority of Rule 8, though that rule was not applicable'.

it therefore clearly appears that there was no proper application of the mind to the facts of the case' and that there was no proper consideration of the content of the allegations and the defence. ' The learned Assistant Government Pleader tried to explain this apparent misapprehension of fact by stating that the reference to Rule 8 in the order was merely an inaccurate reference to Rule 8, but not only in the order but the same words are also found in the show cause notice. It could not therefore. Be said that the discrepancy was merely the result of an inaccurate reference in the order. It appears that the allegations in the notice were merely repeated in the order finally assed by the authority. Mr. Patel also pointed out to us how inadvertently the order was passed by the authority By showing to us that the Municipality was referred to at the end of the order as 'the An and Municipality, Kalol'. This is no doubt a small circumstance but from all the circumstances taken together it appears to us that the materials relating to the charge against the petitioner viere not properly considered by the authority before passing the order of removal udder Section 23 (7) of the Bombay District Municipal Act and that the order was passed mechanically without a proper application of the mind by the authority. In these circumstances, in absence of a proper affidavit denying the material averments made by the petitioner in his petition, it is not possible to come to the conclusion that these averments made by the petitioner in his petition in this regard were un-justified. 'There is no indication in the order or in the affidavit to show what materials were placed before' the authority passing the order and that these materials were considered by him along with the defence to the petitioner. On the other hand, there is clear in direction to show the non-application of the mind on the fads stated in the show cause notice. All these facts and circumstances when considered together show beyond doubt that there was no proper inquiry, that the authority passing the order had not applied his mind on the various allegations mentioned in the show cause notice and on the explanation rendered by the petitioner in his reply to the show cause notice and that therefore the petitioner did not get a reasonable opportunity of a proper hearing before passing the final order. The whole order, therefore, must be struck down as illegal.

22. AS regards the rest ot the contentions of Mr .Patel, there is no merit in them. Mr. Patel has not been able to substantiate his allegations regarding the question of mala fides of the State Government in passing the impugned order.

23. The result is that the order dated 14th March 1963 passed by the State Government under Section 23 (7) of the Bombay District Municipal Act is set aside as being void. Rule made absolute with costs.


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