ABDUL SATAR LATIFBHAI VAHORA MEMBER v. STATE OF GUJARAT

CORAM : MR.JUSTICE C.K.THAKKAR Date of decision: 13/04/2000 ORAL JUDGEMENT In this matter, ex-parte rule was already issued on 30th July, 1999. Notice as to interim relief was also issued which was made returnable on 11th August, 1999. The order read as under : "Mr. Mehul S Shah for the petitioner. Rule. Notice as to the interim relief returnable on

11.8.1999. In the meanwhile, the operation of the order dated 24th July, 1999 passed by the Director of Municipalities read with the order dated 11th June, 1999 passed by the Collector, Mehsana disqualifying the petitioner from continuing as a member of the Vadnagar Nagar Palika shall remain stayed with all legal consequences as if the petitioner has never been disqualified. It will be open for the petitioner to inform the concerned respondents by fax at his own costs. Direct service is permitted. " Today, the matter is called out for hearing of interim relief. In the facts and circumstances , I am of the opinion that the matter deserves to be finally disposed of. This petition is filed against the order passed by the Collector , Mehsana, respondent No.2 herein disqualifying the petitioner from holding office of councillor of Vadnagar Nagar Palika. The case of the petitioner is that he is elected councillor of Vadnagar Nagar Palika for the last two terms i.e. for last eight years. On 5th February, 1999, a show cause notice was issued by the Collector, Mehsana under Section 38 of the Gujarat Municipalities Act, 1963 (hereinafter referred to as `the Act') inter alia alleging that the petitioner was elected as a councillor from ward No.5 of Vadnagar Nagar Palika. He was a partner in Rachna Sales Corporation and Gujarat Engineering Works situated in Vadnagar. As a partner, he had financial interest in both the firms. In spite of that, certain quantity of cement was sold to the Nagar Palika by the said two firms in 1996, 1997 and 1998. As the petitioner was one of the partners, he incurred disqualification under the Act and hence, he was liable to be declared as disqualified under Section 38 of the Act. The petitioner submitted his reply inter alia stating that he ceased to be a partner as he voluntarily retired from the said firms with effect from 1st April, 1996, and there was new constitution of both the firms in which he was not a partner. For that purpose, reliance was placed on the deed of dissolution as also a communication sent to the Sales Tax Officer (3), Visnagar on 23rd February, 1999 as also to the Registrar of Firms on 3rd April 1999. The Collector, however, declared the petitioner disqualified observing that both the documents were subsequent to issuance of the notice by him under Section

Being aggrieved by the said order passed by the Collector, the petitioner preferred an appeal. Section 38 (4) of the Act provides that any person aggrieved by a decision of the Collector may file an appeal to the State Government. It was stated that powers of the State Government have been delegated on the Director of Municipalities and such appeal lies before the Director of Municipalities. The appeal was filed, but no order regarding stay was made. Hence, the petitioner approached this Court by filing the present appeal. At the preliminary hearing itself, the Court was satisfied that the matter required consideration and hence Rule was issued. Notice as to interim relief was issued and meanwhile, ad-interim relief was granted suspending the order passed by the Collector as well as the Director of Municipalities by further observing that the petitioner must be treated as holding office of councillor of Vadnagar Nagar Palika as if no order was passed against him . Today, I have heard the parties.