godavriben prjapati

8/7/2019 Godavriben Prjapati

http://slidepdf.com/reader/full/godavriben-prjapati 1/8

2010 (0) GLHEL-HC223039

GUlARAT HIGH COURT

Honbie Judges:Jayant Patel, J.

Godavariben Jayantilal Prajapati, Member, Executive Committee

Versus

State Of Gujarat, Through Secretary

SPECIALCIVIL APPLICATIONNo. 10415 of 2009 ; 10418 of 2009

*3 Date: - FEBRUARY18, 2010

Equivalent Citation(s):

2010 JX(Guj) 12 : 2010 GLHEL_HC223039

Legal provision referred:

GUJARATMUNICIPALITIES ACT, 1963 Section - 67

CaseNotes:

Incurring expenses of Rs.l,24,140/-, there is additionalexpenses of Rs.26,362/- and RS.16,855.50 and all such

expenses are incurred without following the procedure as

required under Section 67 of the Gujarat Municipalities Act

(hereinafter referred to as "the Act") when expenses are to

be incurred exceeding Rs.5,OOO/- (para 1)

when the contract is given for getting the work done through

some other party by way of a contract, Section 67 of the Act

would apply, but it would equally apply even if the work is to

be done by the Municipality departmentally and the material

required or purchased by the Municipality exceeds the cost

of Rs.5,OOO/- (para 8)

1



It prima facie appears that if any work is done or any

expenses are incurred without following the mandatory

requisite procedure, it would be termed as unauthorised,

which would consequently, result into utilisation of the

money in an unauthorised manner. (para 12)

JUDGEMENT: -

1 As in both the matters facts are interconnected arising on

common question, hence common order.

2 Heard Mr.Nanavati for the petitioners in both the petitions and

Mr.Raval, learned AGP for the State Authorities. Respondent No.4 is

served, but nobody appears on his behalf.

3 It prima facie appears that there is allegation of irregularity in not

issuing tender before incurring expenses of Rs.l,24,140/- in Special

Civil Application No. 10415/09 and in Special Civil Application No.

10418/09, in addition to the very ground for incurring expenses of

Rs.l,24,140/-, there is additional expenses of Rs.26,362/- and

Rs.16,855.50 and all such expenses are incurred without following

the procedure as required under Section 67 of the Gujarat

Municipalities Act (hereinafter referred to as "the Act") when

expenses are to be incurred exceeding Rs.5,000/-.

4 It is not the case of the petitioners that such procedure was

followed. However, Mr.Nanavati, learned counsel appearing for the

petitioners heavily relied upon the decision of this Court (Coram

M.R. Shah, 3.) in Special Civil Application No. 9289/09 preferred by

Kiritlal Ratilal Shah and 10 persons in capacity as the Chairman of

the Executive Committee of the very Municipality and they were

removed on the ground that procedure as required under Section 67

2



of the Act was not followed since tenders were not invited.

Mr.Nanavati submitted that the said petition has been decided vide

order dated 17.11.2009 by this Court (Coram: M.R.Shah, 3.) and

the order of removal is set aside on the ground that when the work

is done departmentally or by the Municipality itself, Section 67 of

the Act has no applicability. He pressed in service the observations

made by the Court in the said decision at para 7 and he contended

that the impugned order of removal also deserves to be quashed on

the same ground alone.

5 It may recorded that this Court in the above referred decision at

para 7, observed thus -

"Thus, main allegation against the petitioners is breach of

Section 67 of the Gujarat Municipalities Act. Section 67 of the

Gujarat Municipalities Act, reads as under:

"67.Tenders to be invited for contracts involving expenditure

exceeding Rs.5000j-. (1) Except as is otherwise provided in

sub-section (3), a Chief Officer shall, before entering into any

contract for the execution of any work or the supply of any

materials or goods which will involve an expenditure

exceeding five thousand rupees, give notice by advertisement

in a newspaper, inviting tenders for such contract:

Provided that where the work or supply involves an

expenditure exceeding twenty thousand rupees, the

advertisement shall be published in such one or more daily

newspapers as may be approved by the municipality;

Provided further that at least clear seven days shall beallowed to elapse between the date of the publication of the

3



advertisement in the newspaper inviting tenders and the last

date fixed for the receipt of tenders by the Chief Officer.

(2) The Chief Officer shall not be bound to accept any tender

which may be made in pursuance of such notice, but may,

with the approval of the Expenditure Committee, accept any

of the tenders as made which appears to him, upon a view of

all the circumstances, to be the most advantageous or may

for reasons recorded reject all the tenders submitted to him.

(3) A municipality may authorize the Chief Officer, for reasons

which shall be recorded in its proceedings, to enter into a

contract without inviting tenders as herein provided or without

accepting any tenders which he may receive after having

invited them."

6 As per Section 67 of the Act, except as is otherwise provided in

sub-section (3), a Chief Officer shall, before entering into any

contract for the execution of any work or the supply of any

materials or goods, which will involve an expenditure exceeding

Rs.5,OOO/-, is required to give notice in a newspaper, inviting

tenders for such contract. Thus, on fair reading of Section 67 of the

Gujarat Municipalities Act, it will be applicable only in a case where

Chief Officer enters into any contract for the execution of any work

or the supply of any goods or materials, involve an expenditure

exceeding Rs.5,OOO/-. In the present case, admittedly no contract

has been entered by the Chief Officer and/or no resolution was

passed to enter into any contract and award the contract for

execution of any work for use of any material/good. It is admitted

position that work of laying down pipelines is done through the

Department itself. In view of the above, Section 67 of the Act will

not be attracted at all as there was no contract awarded. Under the

4



circumstances, the impugned order passed under Section 37 of the

Gujarat Municipalities Act on the ground that the resolution passed

by the Executive Committee of the Nagarpalika, of which the

petitioners were members, to get the work of laying down pipelines

through the Department and expenditure incurred was more than

Rs.5,OOOj- was in breach of Section 67 of the Act, cannot be

sustained and deserves to be quashed and set aside. There is no

breach of Section 67 of the Act.

7 It appears that the aforesaid interpretation is made by the Court

having taken into consideration only one part of Section 67 of the

Act for entering into any contract for execution of any work and it

does not take into consideration of entering into any contract for

supply of any material or goods. If Section 67 (1) is read and

examined in detail, it appears that it applies to two contingencies;

one, when the Chief Officer has to enter into any contract for

execution of the work. Another or is that when the Chief Officer has

to enter into contract for the supply of any material or goods. The

word any contract is applicable to both the contingencies; viz., that

for execution of any work and such word "contract" also apply for

supply of any material or goods. Therefore, if the second part of

section 67(1) is considered or the second contingency expressly

contemplated by the legislature is considered, it is not possible for

me to agree with the observations and conclusions that when the

Chief Officer has to enter into any contract, for supply of any

material or any goods, Section 67 of the Act will have no

applicability. Even if the matter is considered on the premise that

the work was to be undertaken by the Municipality departmentally,

then also, for undertaking such work, the purchase of material and

goods would be there and it was there in the present case. The

allegation in the show-cause notice was that for procurement of the

material or goods exceeding Rs.5,OOOj-, the advertisement was not

5



given and therefore, there is breach of Section 67 of the Act.

8 Under these circumstances, when the contract is given for getting

the work done through some other party by way of a contract,

Section 67 of the Act would apply, but it would equally apply even if

the work is to be done by the Municipality departmentally and the

material required or purchased by the Municipality exceeds the cost

of Rs.5,000j-. As such, the same was the position in the present

case and was the position in the case considered by this Court in

SCA No.9289j09 that the material had cost exceeding Rs.5,000j-

which was purchased without issuing advertisement in the

newspaper or without inviting tender. Therefore, with respect, it is

not possible for me to agree with the conclusion recorded in the

said decision that Section 67 of the Act would not be applicable if

there was no contract awarded for work, but in my view, section 67

of the Act would also be attracted if the material is purchased

exceeding Rs.5,000j- for any departmental work carried out by the

Municipality. As such, in view of the aforesaid reasons recorded for

disagreement, the matter would be required to be referred to

Division Bench.

9 However, Mr. Nanavati, learned counsel appearing for the

petitioners contended that apart from the aforesaid aspects of

breach of Section 67 of the Act or otherwise, there is no allegation

that the amount was not sept or that the petitioners have pocketed

any amount or that the person concerned did not receive the

amount and therefore, it would not be a case of disgraceful conduct

or misconduct which would attract the consequence of removal of

elected representative.

10 The learned AGP, Mr. Raval, is not in a position to show anyallegation or findings recorded by the authority that the amount was

6



actually not spent or that the person concerned did not receive the

amount.

11 Under these circumstances, at the most, it would be termed as a

requisite procedure not followed for incurring of the expenses by the

elected representative. At that stage, Mr.Nanavati, learned counsel

appearing for the petitioners declared under the instructions of his

client that if such being an alleged irregularity, though no allegation

of any malafide intention or pocketing of money or otherwise, the

petitioners would be ready to deposit the amount even if it is

considered that any loss because of any such irregularity is caused

of the corpus of the Municipality.

12 It prima facie appears that if any work is done or any expenses

are incurred without following the mandatory requisite procedure, it

would be termed as unauthorised, which would consequently, result

into utilisation of the money in an unauthorised manner. Therefore,

while considering the matter for interim relief, even it it is

considered on the basis of equitable principle, the financial loss

caused to the Municipality for such unauthorised action by the

respective petitioners in their respective capacity, deserves to be

made good and for such purpose, as recorded hereinabove, the

learned counsel for the petitioners has agreed for the same, of

course without prejudice to the rights and contentions in the

present petitions.

13 It prima facie appears that if the money is deposited, which were

unauthorisedly incurred and the same is with the peculiar

circumstances that there is no allegation or findings that the

amount paid was not received by the person concerned or there

was any extraneous circumstances received by the person whoincurred the expenses, if the condition is imposed of depositing the

7



amount while staying the order of removal, the same would meet

with the ends of justice and would rather be by balancing the rights

of the petitioners as against the interest of the Municipality.

14 Hence, the following order-

Rule. By interim order, there shall be stay against the

impugned order for removal of the petitioners on the

condition that the petitioners of Special Civil Application No.

10415/09 deposits the amount of Rs.l,24,140/- on or before

20.02.2010 with the Municipality and the petitioners of

Special Civil Application No.l0418/09 deposits the amount of

Rs.26,362/- plus Rs.16,855/-, total Rs.43,217/- or on before

20.02.2010 with the Municipality. It is observed that it is only

upon the compliance of the condition by the petitioners

concerned of depositing the amount, the injunction shall

operate and upon failure to comply with the condition, the

order of removal would operate.

15 In view of the aforesaid reasons for disagreement, office to place

the matter before the Division Bench for further orders as may be

ordered by the Honourable Chief Justice on administrative side.

* * *

8

godavriben prjapati

Documents