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TMI Blog1996 (7) TMI 564X X X X Extracts X X X X X X X X Extracts X X X X ..... he suit. The second appeal filed by the Municipality was allowed by the High Court and the judgment and decree passed by the first appellate court was set aside and the suit of the appellant was dismissed on the short ground that the same was barred by limitation under Section 253(1) of the Gujarat Municipalities Act, 1963 (the Act). This appeal by way of special leave is against the judgment of the High Court. It is not disputed that before passing the order. of dismissal it was mandatory for the Municipality to have followed the procedure laid down under the Morvi City Municipal Officers and Servants, Conduct, Discipline, Dismissal, Penalty and Appeal etc., Rules 1960 (the Rules). Rule 35 of the Rules, which is relevant is as under: &qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n admitted position that no decision was taken either by the General Board or by the Controlling Committee of the Municipality to take any such action against the plaintiff. It is also an admitted position that no charge-sheet has been given by the General Board or by the Committee acting through the Chief Officer or any other officer. It is clear on the face of it that the charge-sheet, Ex.41, is issued by the president in his own name and is signed by him. There is also nothing on record to show that any evidence was taken in the present case to consider whether the charges levelled against the plaintiff were established. It appears that the plaintiff was called upon to give his explanation and he did give some explanation There is nothi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not show as to what inquiry, if any, was held against the plaintiff before taking this decision. The resolution of the General Board is at Ex.85. The resolution is dated 1-12-1970. This resolution also does not disclose any reasons as to why the General Board had reached the conclusion to dismiss the plaintiff except that it had taken into consideration the resolution of the Controlling Committee and the submissions made by the advocate on behalf of theplaintiff. This shows that neitherEx.38 nor Ex.85 disclosed any reasons whatsoever." The High Court finally concluded as under: "It will appear from what has been discussed above no inquiry he plaintiff respondent as required by the rules framed by the Municipality. The orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct?" The High Court finally came to the conclusion that the suit filed by the appellant was barred by limitation as it was not filed within the period of limitation prescribed by Section 253(1)(a) of the Act The High Court reached the finding on the following reasoning: "The discussion made above clearly shows that even though the action of the Municipality in dismissing the plaintiff was null and void for the reasons which have been stated in the beginning none-the-less the Municipality can be said to have acted in intended execution of the Act and hence the provisions of Section 253(1)(a) will be attracted in the present case." We have heard learned counsel for the parties. We are of the view that the High Court fell int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cent was "an act done or purported to be done in pursuance or execution or intended execution of this Act." We have already held that this levy was not in pursuance or execution of the Act. It is equally clear that in view of the provisions of s.l27(4) (to which we have already referred) the levy could not be said to be "purported to be done in pursuance or execution or intended execution of the Act." For, what is plainly prohibited by the Act cannot be claimed to be purported to be done in pursuance or intended execution of the Act". This Court in Municipal Corporation vs. Sri Niyamatullah S/o Masitulla 1970 2 SCR 47 interpreted Section 135(2) of the Indore Municipal Act, 1909 which is similar to Section 253(a) of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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