PETITIONER:
RUSTAMJI NASARVANJI DANGER
Vs.
RESPONDENT:
JORAM KUNVERJI GANATRA AND ORS.
DATE OF JUDGMENT20/10/1976
BENCH:
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
councillor"--Scope of --President of the Municipality apply-
ing 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 councillor. during the term for which he has
been elected or nominated, acts as a councillor 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 councillor 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 councillor
from continuing as such if he, "acts as a councillor" in the
matter of allotment of any land to himself; there is no bar
in the Act to a councillor 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 councillor in getting the
lease that he is disqualified. There is nothing on the
record to show that the appellant had acted as a councillor
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 Presi-
dent 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) indi-
cates, he should be deemed to have ’acted’ within the mean-
ing of s. 38(1)(b)(i); otherwise the President of a munici-
pality 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 disqualifi-
cation contemplated in s. 38(1)(b)(i) to cases where the
councillor acts as a councillor. The words ’acts as a
councillor’ cannot be treated as redundant. The councillor
acts as a councillor 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 councillor would not attract the disabil-
ity unders. 38(1)(b)(i) unless it was shown further that he
has acted as a councillor in the matter. [888 B-D]
JUDGMENT
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 councillor 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 Govern-
ment. 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 or-
dered. 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 councillor by taking lease of the land from the munici-
pality. 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 disqual-
ification referred to in section 38(1)(b)(i) of the Act
which disabled him from continuing to be a councillor 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 offi-
cer. 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 judg-
ment 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
councillor. (1) If any councillor during the
term for which he has been elected or nomi-
nated -
(a) x x x
(b) acts as a councillor in any matter -
(i) in which he has directly or
indirectly, by himself or his partner, any
such share or interest as is de:scribed in
clause (i), (ii), (iii), (v) or (vii) of sub-
section
886
(3) of section 11, whatever may be the value
of such share or interest,
or ...........................
he shall subject to the provisions of sub-
section (2) be disabled from continuing to be
a councillor 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 "gener-
al disqualifications for becoming a council-
lor" and specifies the cases to be treated as
exceptions. Section 11(2)(c) disqualifies a
person from being a councillor "who, save as
hereinafter provided, has directly, or indi-
rectly, by himself or his partner any share or
interest in any work done by order of a munic-
ipality or in any contract or employment with
or under or on behalf of a municipality’.
Sub-section 3(A)(i) of section 11 which con-
tains 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 councillor 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 councillor during the
term for which he has been elected "acts as a councillor" in
acquiring a direct or indirect share or interest in any
lease, he shall be disabled from continuing to be a council-
lor. We have noted earlier that section 11(3)(A)(i) is an
exception to. the general disquali-fication under section
11(2) (c), section 38(1) (b) (i) appears to be an exception
to that exception. This means that though having an inter-
est in any lease from municipality is not a disqualification
for becoming or continuing as a councillor, if the council-
lor "acts as a councillor" in getting such lease from the
municipality, he shall be ’disabled from continuing to be a
councillor. The president of the municipality being a
council, lot, this provision also applies to him. The ques-
tion therefore is whether the appellant in this case acted
as a councillor 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 occupa-
tion 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 permis-
sion 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 councillor 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’sec-
tion 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 applica-
tion. 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 councillor 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 councillor from continuing as such
if he "acts as a councillor" in the matter of allotment of
any land to himself, there is no bar in the Act to a coun-
cillor 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 councillor 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
councillor to have the plot allotted to him-
888
self. ’Even if the chief officer was influenced by the fact
that the applicant before him was president of the munici-
pality, 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 con-
ferred 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
councillor acts as a councillor. The words "acts as a
councillor" cannot be treated as redundant. In our view the
councillor acts as a councillor 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 councillor would not at-
tract the disability under section 38(1) (b)(i) unless it
was shown furher that he has acted as a councillor in the
matter. In view of the clear provision of section
38(1)(b)(i) we do not find it possible to support the im-
pugned 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.
889