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Madhubhai Rambhai Patel Vs. Chimanbhai Kashibhai Patel and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1963)4GLR97
AppellantMadhubhai Rambhai Patel
RespondentChimanbhai Kashibhai Patel and ors.
Excerpt:
.....after a special notice had been served upon him he had failed and neglected to pay up the arrears. patel in this regard therefore must fail. patel is however untenable for two good..........also directed that the president should be deemed to be and treated as a party in the aforesaid inquiry proceeding and on the same day the collector also rejected an application by the first respondent on behalf of k.n. patel for adjournment. it is clear from these orders that this inquiry was initiated by the president of the municipality that the first respondent was engaged by k.n. patel that the application was a disqualification application and lastly that in the disqualification proceeding the president was made a party by the collector and was allowed by the collector to have an advocate.on the 4th of march 1961, the petitioner filed an application under section 28(1)(bb) of the act against the first respondent contending therein that the first respondent had rendered himself.....
Judgment:

J.M. Shelat, J.

1. This application involves a question as to the correct interpretation of the words in any case for or against the municipality used in Section 28(1)(bb) of the Bombay Municipal Boroughs Act 1925 The question arises in the following manner.

At all material times the petitioner and the first respondent were members of the Borough Municipality of Nadiad. On March 4 1961 the petitioner filed an application before the Collector Kaira under Section 28 and Section 28(2) of the Bombay Municipal Boroughs Act 1925 for declaring a vacancy in the seat of the first respondent as a councilor of the municipality. The petitioners case in that application was that the president of the municipality by his letter dated August 6 1960 had requested the Collector to declare the seat of one K.N. Patel vacant under Section 28(2) of the Act as the said K.N. Patel had rendered himself disqualified under Section 12(2)(aa) of the Act on the ground that he had failed to pay the arrears of municipal taxes notwithstanding a notice having been served upon him. In pursuance of that application the Collector held an inquiry after issuing notices both upon the said K.N. Patel and the president of the municipality. In that inquiry the first respondent filed his vakalatnama for and on behalf of the said K.N. Patel. The first respondent besides filing his vakalatnama also appeared in that inquiry for the said K.N. Patel and even opposed the request of the president of the municipality to engage an advocate on his behalf in that inquiry. That objection was however rejected ky the Collector by his order dated December 9, 1960 The Collector also ordered that the president of the municipality should be deemed to be a party to the said inquiry and allowed him to engage an advocate. Thereafter the first respondent by an application dated November 22 1960 applied for stay of the said inquiry but that application also was rejected by the Collector by his order dated December 9 1960 In these circumstances the petitioner applied to the Collector that the first respondent had rendered himself disqualified to be or to continue as a councilor of the municipality as he became disqualified on the ground that he was professionally engaged in the aforesaid case before the Collector against the municipality and requested the Collector to declare his seat as councilor vacant. A show cause notice was issued to the first respondent calling upon him to show cause why he should not be disqualified as a councilor. The first respondent appeared before the Collector and opposed the show cause notice contending that the inquiry in which he appeared on behalf of the said K.N. Patel was not a case within the meaning of Section 28(1)(bb) and therefore he did not incur any disqualification. He also urged that Section 28(1)(bb) did not apply to the aforesaid inquiry as the municipality was not a party to that inquiry The Collector held however that the inquiry against the aforesaid W.N. Patel for non-payment of municipal taxes was a case within the meaning of Section 28 that the interest of the municipality was involved in the said inquiry as the disqualification of the said K.N. Patel was sought on the ground of arrears of municipal taxes and as the first respondent had appeared on behalf of the said K.N. Patel in an action against him arising from nonpayment of municipal taxes the first respondent must be said to have incurred the disqualification as contemplated by Section 28 In that view the Collector declared the first respondent to have been disqualified from being a councilor of the municipality and declared his seat to have fallen vacant. The first respondent filed an appeal against the aforesaid order of the Collector before the second respondent. The second respondent held that the disqualification proceedings in respect of the said O.N. Patel did not constitute a case for or against the municipality as an inquiry for disqualifying a councilor was a matter which primarily pertained to the councilor and the municipality was not interested in and was not a party to such a proceeding In that view the second respondent set aside the order passed by the Collector and held that the first respondent continued to be a councilor of the municipality. It is against that order of the second respondent that the present application has been filed.

2. The question is whether the first respondent was professionally interested or engaged in a case for or against the municipality. Section 12(2)(aa) under which the inquiry against K.N. Patel was held lays down a disqualification of a person who falls to pay arrears of municipal dues within three months after a special notice in that behalf has been served upon him. The aforesaid K.N. Patel was at the material time a councilor of the Nadiad Municipality and who was said to have been in arrears of municipal dues and who was also said to have failed to pay such arrears inspite of a special notice having been served upon him. By a letter dated August 6 1960 the president of the municipality reported to the Collector of Kaira that the said K.N. Patel had failed to pay up the arrears of the tasks in respect of the properties standing in the joint names of himself and his wife and that though three months had elapsed after a special notice had been served upon him he had failed and neglected to pay up the arrears. By the said letter the president requested the Collector to hold an inquiry against the said Patel and declare him to have become disabled from continuing to be a councilor under Section 28(1)(a) read with Section 12(2)(aa) of the Act. On September 15 1960 the Collector of Kaira issued a show cause notice against K.N. Patel a copy of which was served upon the president of the Nadiad Municipality calling upon the president to remain present with the necessary papers at the time and place specified therein. During that inquiry the first respondent was engaged by K.N. Patel as his advocate and it appears from the Collectors order dated December 9, 1910, that the first respondent opposed an application made by the president for permission to engage an advocate. The objection of the first respondent was overruled by the Collector and by his order dated December 9 1960 the Collector not only gave permission to the president to engage an advocate but also directed that the president Should be deemed to be and treated as a party in the aforesaid inquiry proceeding and on the same day the Collector also rejected an application by the first respondent on behalf of K.N. Patel for adjournment. It is clear from these orders that this inquiry was initiated by the president of the municipality that the first respondent was engaged by K.N. Patel that the application was a disqualification Application and lastly that in the disqualification proceeding the president was made a party by the Collector and was allowed by the Collector to have an advocate.

On the 4th of March 1961, the petitioner filed an application under Section 28(1)(bb) of the Act against the first respondent contending therein that the first respondent had rendered himself disabled to continue as a councilor of the municipality by reason of his having acted in the aforesaid disqualification proceeding against the interests of the municipality and in a case against the municipality held by the Collector against the first respondent. The first respondent contended that the disqualification proceeding against the aforesaid K.N. Patel was not a case within the meaning of Section 28(1)(bb) that the municipality could not be said to be a party in such a case and that he had withdrawn himself from the aforesaid proceeding as soon as the Collector made the president a party in that proceeding by his order dated December 9, 1960. As aforesaid the collector held that the inquiry proceeding before him against K.N. Patel was case within the meaning of sic. 28(1)(bb) and therefore the first respondent having appeared therein for and on behalf of the said K N. Patel acted against the interests of the municipality and therefore incurred the disqualification. The question is whether this order of the Collector is correct.

3. Section 28 lays down disabilities from continuing to be a councilor and Clause (bb) of Sub-section (1) of that section provides that if a councilor is professionally interested or engaged in any case for or against the municipality he shall subject to the provisions of Sub-section (2) be disabled from continuing to be a councilor and his office shall become vacant. Mr. S.N. Patel contended that the inquiry initiated by the president was an inquiry initiated by and on behalf of the Municipality and therefore the municipality was a party. The engagement of and the appearance therein by the first respondent for the aforesaid K.N. Patel was an appearance and an engagement against the municipality. This contention in our view is not correct. The letter dated August 6 1960 was not written by the president for and on behalf of the municipality. It was written in his individual capacity and his signing it as the president was merely descriptive. There was no resolution passed by the municipality authorising him as the president to initiate that proceeding against K.N. Patel. Initiating such an inquiry by tiling a complaint or a report before the Collector against a councilor was not one of the functions or the duties of the President. The functions and duties of the president of a borough municipality are laid down in Section 31 of the Act. It is clear from the provisions of Section 31 that there is no power nor duty of a president to initiate or lodge on behalf of the municipality any disqualification proceeding against a councilor. 11 is obvious therefore that the disqualification proceeding initiated by the president was not on behalf of the municipality and therefore the municipality cannot be said to be a party to that proceeding. That was therefore not a case for or against the municipality as contemplated by Section 28(1)(bb) of the Act. The direction by the Collector in his order dated December 9 1960 to make the president a party did not also mean that the municipality thereby became a party to that proceeding or that there was any case before the Collector in respect of that proceeding for or against the municipality within the meaning of Section 28(1)(bb). The contention of Mr. S.N. Patel in this regard therefore must fail.

4. Mr. Patel next contended that the words in Section 28(1)(bb) for or against the municipality should be liberally construed and therefore it should be held that a person falls under the mischief of this clause if he appears in a case where though the municipality is not a party its interests are affected. If therefore a councilor is professionally interested or engaged in a case in which the interests of the municipality are involved or affected it would be enough to disqualify such a councilor. This construction suggested by Mr. Patel is however untenable for two good reasons: (1) It is doubtful if it can be said that a disqualification inquiry under Section 12(2)(aa) read with Section 28(1)(bb) is a proceeding in which the municipality as a body is interested or where its interests are affected one way or the other. It is an inquiry against a councilor and the parties thereto are the person who initiates it or the Collector if he acts suo motu and the councilor proceeded against. The result of such an inquiry is that such a councilor is declared to be either disqualified or not disqualified. In either event it is that councilor who is affected and the municipality as such is neither interested nor its interests are affected. (2) The construction suggested by Mr. Patel of Clause (bb) of Section 28(1) is not borne out by the words in that clause. Professional interest or engagement of a councilor has to be in a case for or against the municipality. There must therefore first be a case and such a case must be for or against the municipality. It is obvious that the disqualification proceeding against K.N. Patel was a case but it was a case against K.N. Patel and not a case for or against the municipality. Even the Collector by his order dated December 9 1960 made only the president a party to that proceeding and not the municipality. No notice of that proceeding was ever served upon the municipality and no resolution at any time was passed by the municipality authorising the president to appear on its behalf and contest that proceeding against the said K.N. Patel. In our view the construction placed by the Collector on Clause (bb) of Sub-section (1) of Section 28 was unwarranted and consequently his conclusion that the first respondent rendered himself disqualified under Section 28(1)(bb) by reason of his having been engaged by the said K.N. Patel in the aforesaid proceeding was untenable. The order of the second respondent reversing the Collectors order dated 19/23 August 1961 was therefore correct.

In the result the application fails and is dismissed with costs.


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