Rustamji Nasarvanji Danger Vs. Joram
Kunverji Ganatra & Ors [1976] INSC 253 (20 October 1976)
GUPTA, A.C.
GUPTA, A.C.
CHANDRACHUD, Y.V.
CITATION: 1977 AIR 82 1977 SCR (1) 884 1976
SCC (4) 500
ACT:
Gujarat Municipalities Act, 1963--S.
38(1)(b)(i) "acts as a councilor"--Scope of --President of the
Municipality applying for lease of land--If debarred from taking land on
lease---General power of supervision conferred on the President--If President
should be deemed to have acted within the meaning of S. 38(1)(b)(i) when lease
was granted to him by the Chief Officer.
HEADNOTE:
Under s. 38(1)(b)(i) of the Gujarat
Municipalities Act, 1963, if a councilor. during the term for which he has been
elected or nominated, acts as a councilor in any matter in which he has
directly or indirectly any share or interest, he shall, subject to the
provisions of sub-s. 2, be disabled from continuing to be a councilor and his
office shall become vacant. While functioning as President of a municipality
the appellant obtained a plot of land within the municipality for running a
mill. The Chief Officer who was the authority to grant such permission
permitted the appellant to hold the plot on certain conditions. The High Court
in writ petition by the respondent held that the appellant was disqualified
from continuing President of the municipality.
Allowing the appeal to this Court,
HELD: (1) Section 38(1)(b)(i) disables a councilor
from continuing as such if he, "acts as a councilor" in the matter of
allotment of any land to himself; there is no bar in the Act to a councilor
getting a lease of the land from the municipality as would appear from s.
11(3)(A)(i). It is only in a case where he acts as a councilor in getting the
lease that he is disqualified. There is nothing on the record to show that the
appellant had acted as a councilor to have the plot allotted to himself. [887
H] (2) Whether or not the Chief Officer was influenced by the fact that the
applicant before him was President of the municipality, was not relevant to the
question whether s.
38(1)(b)(i) was attracted. [888 A] (3) The
general power of supervision conferred on the President does not imply that in
every case where he applied for a lease, which he is entitled to do as s.
11(3)(A)(i) indicates, he should be deemed to have 'acted' within the meaning
of s. 38(1)(b)(i); otherwise the President of a municipality under the Act, by
virtue of his office would be disentitled altogether from applying for
permission to use any land of the municipality. If this were the correct
position then there was no point in limiting the disqualification contemplated
in s. 38(1)(b)(i) to cases where the councilor acts as a councilor. The words
'acts as a councilor' cannot be treated as redundant. The councilor acts as a councilor
within the meaning of s. 38(1)(b)(i) when he performs any of the functions,
which, under the Act, he is required to perform. An allegation of misuse of his
position against a councilor would not attract the disability under. 38(1)(b)(i)
unless it was shown further that he has acted as a councilor in the matter.
[888 B-D]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 974 of 1975.
(Appeal by Special Leave from the Judgment
and Order dated 25-6-1975 of the Gujarat High Court in Spl. Civil Appln. No.
1223/74).
D.V. Patel and S.S. Khanduja, for the
Appellant.
885 U.R. Lalit, P.H. Parekh and Miss Manju
jatley, for Respondent No. 1.
M.N. Shroff, for Respondent No. 2.
The Judgment of the Court was delivered by
GUPTA, J. The appellant was elected a councilor of Anjar municipality in Kutch
District sometime in 1972, and later, President of the municipality. On June
30, 1973, after he had been elected President, the appellant applied to the
chief officer of the municipality for allotting to him a 'plot of land
admeasuring 18 feet x 16 feet situate in the town of Anjar. In his application
the appellant stated that he wanted the plot for running a flour mill
temporarily until he got a suitable plot from the Government. By his order
dated July 5, 1973 the chief officer granted the request permitting the
appellant to hold the land on payment of rent on condition, inter alia, that
the land should be vacated whenever 'the municipality so ordered. The first
respondent who is a resident of Anjar applied to the Collector of Kutch under
section 38 of the Gujarat Municipalities Act, 1963 (referred to as the Act
hereinafter) for declaring that appellant's office has "become
vacant" as he has disabled himself from continuing as a councilor by taking
lease of the land from the municipality. The Collector having heard the parties
held that the appellant had got the land by misusing his position as President
of the municipality incurring thereby the disqualification referred to in
section 38(1)(b)(i) of the Act which disabled him from continuing to be a councilor
and declared that his office had become vacant. The appellant before us
preferred an appeal under section 38(4) of the Act to the State Government
against the Collector's order.
The State Government allowed the appeal and
dismissed the application of the first respondent. It was held that the land
was allotted to the appellant in accordance with the by-laws of the
municipality and that there was no evidence of the appellant exerting any influence
on the chief officer. The first respondent challenged the order of the State
Government by filing a writ petition in the Gujarat High Court. The learned
Judge of the High Court who heard the petition allowed the same, quashed the
order of the State Government, and restored the order made by the Collector.
This appeal by special leave is directed
against the judgment of the High Court allowing the writ petition.
The appeal turns on section 38(1)(b)(i) of
the Act which reads as follows:
"38. Disablilties from continuing as a councilor.
(1) If any councilor during the term for which he has been elected or nominated
(a) x x x (b) acts as a councilor in any matter (i) in which he has directly or
indirectly, by himself or his partner, any such share or interest as is described
in clause (i), (ii), (iii), (v) or (vii) of subsection 886 (3) of section 11,
whatever may be the value of such share or interest, or
...........................
he shall subject to the provisions of subsection
(2) be disabled from continuing to be a councilor and 'his office shall become
vacant." The provisions of sub-section (2) are not relevant for the
present purpose. Section 11 of the Act enumerates, inter alia, the "general
disqualifications for becoming a councilor" and specifies the cases to be
treated as exceptions. Section 11(2)(c) disqualifies a person from being a councilor
"who, save as hereinafter provided, has directly, or indirectly, by
himself or his partner any share or interest in any work done by order of a
municipality or in any contract or employment with or under or on behalf of a
municipality'.
Sub-section 3(A)(i) of section 11 which contains
an exception to this rule provides:
"(3) A person shall not be deemed to
have incurred disqualification (A) under clause (c) of sub-section (2) by
reason of his (i) having any share or interest in any lease, sale or purchase
;of any immovable property or in any agreement for the same." Thus a
person is disqualified from becoming a councilor if he. has a direct or
indirect interest in any contract with the municipality, but having any share
or interest in any lease of immovable property or in any agreement for the same
is not a disqualification. Section 38(1)(b) (1),quoted above however provides
that if any councilor during the term for which he has been elected "acts
as a councilor" in acquiring a direct or indirect share or interest in any
lease, he shall be disabled from continuing to be a councilor. We have noted
earlier that section 11(3)(A)(i) is an exception to. the general disqualification
under section 11(2) (c), section 38(1) (b) (i) appears to be an exception to
that exception. This means that though having an interest in any lease from
municipality is not a disqualification for becoming or continuing as a councilor,
if the councilor "acts as a councilor" in getting such lease from the
municipality, he shall be 'disabled from continuing to be a councilor. The
president of the municipality being a council, lot, this provision also applies
to him. The question therefore is whether the appellant in this case acted as a
councilor in the matter of allotment of the land to him.
Section 275 of the Act authorises the
municipality to make bylaws not inconsistent with the Act. The Anjar
municipality has framed by-laws regulating the conditions on which permission
may be given for the temporary occupation of public streets or land. An English
translation of by-law 4 of these by-laws which are in Gujarati reads:
"Permission will be given for the, use
of public road or land within the municipal limits but not of private land for
temporary period for the matters mentioned in Schedule 1 hereto on advance
payment of fee as stated in the Schedule.
887 Any person who intends to occupy such
land shall have to make a written application to the chief officer. But to give
such permission or not shall be within the absolute discretion of the chief
officer." Schedule 1 mentioned here prescribes the fees payable by the
applicant on such permission being granted. The chief officer in this case
permitted the appellant to occupy the land in question in exercise of the power
given to him by this by-law. The High Court found that the appellant acted as a
councilor and President of the municipality in having the plot allotted to him
mainly upon the provisions of sections 49 and 45 of the Act. Section 49 defines
the power and duties of the chief officer. Sub-section (1)(a) of' section 49
which is relevant in this context is as follows:
"49. Power and duties of chief officer.(1)
The chief officer shall (a) subject to the general control of the president
watch over the financial and executive administration of the municipality and
perform all the duties and exercise all the powers specifically imposed or
conferred upon him by, or delegated to him under, this Act." Section 45
enumerates the functions of the President; one of the functions is to exercise
supervision and control over the acts and proceedings of all officers and
servants of the municipality in matters of executive administration. The High
Court after referring to these provisions observed that the chief officer being
under the general control of the president in all matters of executive administration
must have felt himself bound to grant the appellant s application. The High
Court referred to an earlier application for the plot made by one Karan Kanji
which the chief officer had rejected. There is also a finding that by-law 4 did
not permit the use of the plot for the purpose for which the appellant had
applied and that the chief officer went out of his way to help his president.
The High Court concluded that if the appellant had not been a councilor of the
municipality and its president, his application would have met with the same
fate as Karan Kanji's.
The legality of the chief officer's order is
not however an issue in this case, and the question whether or not the intended
use of the plot by the appellant was beyond the scope of by-law 4 need not
detain us. According to the High Court it was only because the appellant held
the office of president 'of the municipality that the chief officer allowed his
application. This may or may not be true, but it is not a matter relevant to
the real question that arises for consideration in this case. Section
38(1)(b)(i) disables a councilor from continuing as such if he "acts as a councilor"
in the matter of allotment of any land to himself, there is no bar in the Act
to a councilor getting a lease of the land from the municipality as would
appear from section 11(3)(A)(i). It is only in a case where he acts as a councilor
in getting the lease that he is disqualified. There is nothing in the record of
this case to show that the appellant had acted as a councilor to have the plot
allotted to him888 self. 'Even if the chief officer was influenced by the fact
that the applicant before him was president of the municipality, that would not
attract section 38(1)(b)(i). It is true that section 45 confers a general power
of supervision and control on the president over the acts of all officers of
the municipality and section 49, which enumerates the power and duties of chief
officer, also makes him subject to the general control of the president in the
discharge of these powers. But the general power of supervision conferred on
the president does not, in our opinion imply that in every case where he
applies for a lease, which he is entitled to do as section 11(3)(A) (i)
indicates, he should be deemed to have "acted" within the meaning of
section 38(1)(b), otherwise, the president of a municipality under this Act, by
virtue of his office would be disentitled altogether from applying for
permission to use any land of the municipality. If this were the correct
position then there was no point in limiting the disqualification contemplated
in section 38(1) (b) (i) to cases where the councilor acts as a councilor. The
words "acts as a councilor" cannot be treated as redundant. In our
view the councilor acts as a councilor within the 'meaning of section 38(1)(b)
when he performs any of the functions which under the Act he is required to
perform. An allegation of misuse of his position against a councilor would not
attract the disability under section 38(1) (b)(i) unless it was shown further
that he has acted as a councilor in the matter. In view of the clear provision
of section 38(1)(b)(i) we do not find it possible to support the impugned
judgment.
The appeal is therefore allowed and the
judgment of the High Court reversing the decision of the State Government is
set aside. In the circumstances of the case we make no order as to costs.
P.B.R. Appeal allowed.
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