Bombay High Court
Smt. Hemlatabai W/O Deorao Tekade ... vs The State Of Maharashtra, Thr. The ... on 15 December, 2016
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 6817 OF 2016
1] Smt. Hemlatabai Deorao Tekade,
aged about 63 years, Occ. Housewife,
R/o. Ward No.4, Narkhed, Tah. Narkhed,
District Nagpur.
2] Smt. Nirmala Rahul Gajbhiye,
aged about 35 years, Occ. Housewife,
R/o. Ward No.11, Narkhed, Tah. Narkhed,
District Nagpur.
3] Shri Praveen Laxmanrao Balpande,
aged about 45 years, Occ. Agriculturist,
R/o. Ward No.17, Narkhed, Tah. Narkhed,
District Nagpur.
4] Shri Ashfq Mohammad Shafiq Qureshi,
aged about 55 years, Occ. Agriculturist,
R/o. Ward No.8, Opp. Narkhed Police Station,
Narkhed, Tah. Narkhed, District Nagpur.... PETITIONERS
...VERSUS...
1] The State of Maharashtra,
Through the Secretary,
Ministry of Urban Development,
Mantralaya, Mumbai.
2] The Minister, Urban Development,
Ministry of Urban Development,
Mantralaya, Mumbai.
3] The Collector, District Nagpur.
Nagpur.......... RESPONDENTS
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Shri Anand Jaiswal, Senior Advocate, assisted by Shri Nikhil Padhye,
Advocate for Petitioners.
Smt. Bharti H. Dangre, Government Pleader, assisted by Shri
A.R.Chutake, AGP Respondent nos. 1 to 3
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CORAM: R. K. DESHPANDE, J.
th
DATE : 15 DECEMBER, 2016 .
ORAL JUDGMENT
1] Rule made returnable forthwith.
Heard finally by consent of the learned counsels
appearing for the parties.
2] The challenge in this petition is to the order
dated 29.11.2016 passed by the Minister, Urban
Development Department of the State Government,
disqualifying four Municipal Councillors, who are the
petitioners, under Section 42 of the Maharashtra Municipal
Councils, Nagar Panchayats and Industrial Townships Act,
1965 (for short "the said Act") for a period of five years.
3] On 06.12.2016, this Court passed an order as
under;
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The petitioners who are the four Councillors of the Municipal
Council, Narkhed, are disqualified under Section 42 of the
Maharashtra Municipal Councils, Nagar Panchayats and
Industrial Townships Act, 1965, for a period of five years
commencing from the date of passing of the order on
29.11.2016. The tenure of the petitioners as Councillors of
Municipal Council, Narkhed, is coming to an end in the month
of February, 2017, but the programme of election for further
period of five years commencing from February, 2017, has
been published. The programme of election starts from
03.12.2016 and the nomination forms are required to be
submitted by the candidates between 09.12.2016 to
17.12.2016. The petitioners are claiming stay of the impugned
order so that they can be permitted to contest the election of
the Municipal Council scheduled to be held on 08.01.2017.
The order of disqualification was passed on 29.11.2016 and
the basic ground of challenge is that the petitioners were
supplied the copies of documents on 21.11.2016 and the
matter was heard on 23.11.2016 depriving the petitioners an
opportunity to raise an effective defence. Perusal of the order
shows that no finding are recorded on the merits of the
charge and the order of disqualification has been passed only
on the ground that the petitioners are trying to avoid the
adjudication.
Issue notice to the respondents, returnable on 14.12.2016.
Shri A.R.Chutake, the learned A.G.P. waives service of notice
for respondent Nos. 1 to 3".
In response to the aforesaid order, the
respondent authority has filed reply alongwith the
documents. The order of disqualification has been passed
on the ground that in spite of several opportunities, the
petitioners have failed to submit their reply on merits; the
demand for supply of documents is found to be a part of
delaying tactic. The Minister accepts the report submitted by
the Collector in which the petitioners have been found guilty
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of acts of misconduct and the removal of the petitioners
under Section 42 of the said Act has been proposed.
4] Shri Anand Jaiswal, the learned Senior
Advocate appearing for the petitioners, assisted by Shri
Padhye, has invited my attention to Section 42 of the said
Act, relating to the liability of the Councillor to removal from
the office and submits that there is no finding recorded
independently by the State Government, the competent
authority, holding the petitioners guilty of any misconduct in
discharge of their duties as Councillors after giving the
reasonable opportunity of showing cause.
5] In respect of the charges of misconduct alleged
in the show cause notice, Shri Jaiswal has relied upon the
decision of the Apex Court in case of Ravi Yashwant Bhoir
vrs. District Collector, Raigad and others, reported in (2012)
4 SCC 407, more particularly paragraphs 17, 18, 19, 30 to 36
and 46 to urge that the democratically elected
representatives of the citizens cannot be removed in a
casual manner without adherence to the statutory provision
meant for that purpose. He has further relied upon the
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decision of the Apex Court in case of Dipak Babaria and
another vrs. State of Gujarat and others, reported in (2014)
3 SCC 502, more particularly paragraph 64 therein, to allege
that the reasons cannot be supplemented by filing an
affidavit to substantiate the order which falls short of
recording the findings on relevant aspect of the matter.
6]
Shri Jaiswal, the learned Senior Advocate has
further alleged that the hearing was conducted on
23.11.2016 by the Minister concerned and prior to that date
i.e. on 21.11.2016, a bunch of 4476 documents demanded
by the petitioners was supplied by the Chief Officer of the
Municipal Council and it was humanly impossible to go
through all these documents and submit the reply on merits
on or before the date of hearing. He submits that there is
clear violation of the mandate of sub-section (3) of Section
42 of the said Act which vitiate the ultimate order of
disqualification.
7] Smt. Dangre, the learned Government Pleader
has invited my attention to the show cause notice dated
27.04.2015 issued by the Collector to the petitioners; reply
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to it filed by the petitioners on 13.07.2015 before the
Collector covering even some of the aspects on merits of the
matter. She has further invited my attention to the show
cause notice dated 21.01.2016 issued by the State
Government alongwith which a report of the Collector dated
01.02.2016 was supplied to the petitioners. She has invited
my attention to the order passed by the Minister impugned in
this petition and submits that the order contains detailed
reasons in respect of the opportunity given to the petitioners.
The order refers to the show cause notice, reply filed by the
petitioners and also the demand for the documents. She has
pointed out that the order refers to the report of the Collector
and that of the independent agency and keeping in view the
fact that no reply was filed on the merits of the charges
levelled, the order of disqualification was passed, accepting
the report containing the findings about the petitioners being
guilty of the charges of misconduct levelled against them.
8] To deal with the contentions of Shri Jaiswal,
Section 42 of the said Act has to be seen which is
reproduced below.
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42. Liability of Councillors to removal from office. (1) The
State Government may on its own motion or on the
recommendation of the Council remove any Councillor from
office if such Councillor has been guilty of any misconduct in
the discharge of his duties or of [any disgraceful conduct, during
his current term of office or even during his immediately
preceding term of office as a Councillor.]
(2) The State Government may likewise remove any Councillor
from office, if such Councillor has in the opinion of the State
Government become incapable of performing his duties as a
Councillor.
* * * * * * *
(3) No resolution recommending the removal of any Councillor
for the purposes of sub-section (1) or (2) shall be passed by a
Council and no order of removal shall be made by the State
Government, unless the Councillor to whom it relates has been
given a reasonable opportunity of showing cause why such
recommendation or order, as the case may be, should not be
made.
(4) In every case the State Government makes an order under
sub-section (1) or (2), the Councillor shall be disqualified from
becoming a Councillor, or a Councillor or member of any other
local authority for a period of five years from the date of such
order".
Sub-section (3) states that no resolution
recommending the removal of any Councillor for the
purposes of sub-section (1) or (2) shall be passed by a
Council and no order of removal shall be made by the State
Government, unless the Councillor to whom it relates has
been given a reasonable opportunity of showing cause why
such recommendation or order, as the case may be, should
not be made.
9] In the present case, on the basis of an enquiry
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conducted and report dated 21.11.2014 submitted by the
Sub Divisional Officer, Katol and a report of enquiry
submitted on 18.03.2015 by an independent Committee of
MHADA headed by Shri D.K.Ajwani, Engineer, the Collector
had issued show cause notice to the petitioners on
27.04.2015, to which the petitioners had given reply on
13.07.2015. After considering the said reply, the Collector
prepared his report on 01.01.2016 holding that the
petitioners have committed the acts of misconduct and they
are liable to be removed under Section 42 of the said Act.
Thereafter, the State Government issued show cause
notice to the petitioners on 21.01.2016, calling upon the
petitioners to furnish an explanation as to why they should
not be disqualified under Section 42 of the said Act on the
basis of the report submitted by the Collector. A copy of the
report dated 01.01.2016 was also forwarded to the
petitioners alongwith documents running into 255 pages.
10] The order impugned recites in paragraph 3 that
the Collector, Nagpur, was informed to furnish the copies of
the documents demanded by the petitioners and
accordingly, letter dated 22.02.2016 was also issued. It
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further recites in paragraph 4 that on 16.05.2016 and
09.08.2016, the hearing was conducted and at that time also
the petitioners demanded certain documents so as to enable
them to file their reply/explanation. In paragraph 5 of the
impugned order, it is stated that by letter dated 28.08.2016,
an explanation was called from the District Administrative
Officer, Nagpur, in respect of non supply of documents and
the reply from the said Officer on 29.09.2016 was that the
petitioners were informed to collect the documents after
payment of requisite charges, but they have avoided to take
the documents by assigning reason of the demand for
copying charges. It is also stated that the petitioners were
asked to collect certain documents from the office of Chief
Officer, MHADA, Nagpur, by written communication dated
23.09.2016, but the petitioners have avoided to get the
documents from the said office. The petitioners are
disputing all these facts.
11] Shri Jaiswal, the learned Senior Advocate has
invited my attention to the letter dated 05.02.2016
addressed to the Secretary, Urban Development
Department for demand of certain documents, in response
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to which the Urban Development Department of the State
Government informs that the Collector has already been
instructed to supply all the documents so demanded prior to
25.02.2016. It seems that the petitioners submitted an
application dated 25.02.2016 to the Office of the Collector
demanding information and documents in respect of 6 items.
Thereafter also another letter dated 06.04.2016 was
delivered in the office of the Collector, Nagpur.
12] On 29.04.2016, the District Administrative
Officer from the Department of Municipal Administration,
Nagpur, in the office of the Collector, informs in writing to the
petitioners that the entire information is ready for supply in
his office and the petitioners were asked to collect the same.
Again another letter dated 13.05.2016 was issued from the
office of the Collector, Nagpur, informing the petitioners to
collect certain information from the office of MHADA and
remaining information from the office of Chief Officer,
Municipal Council, Narkhed.
13] It further appears that the petitioners have again
issued letter dated 04.07.2016 in the name of Principal
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Secretary, Urban Development Department, demanding
certain documents. Again on 14.09.2016, a letter was given
to the Chief Officer, Municipal Council, Narkhed, for supply
of documents. On 18.11.2016, the Chief Officer informs the
petitioners to deposit an amount of Rs.8,952/- for delivering
the documents containing 4476 pages. The petitioners
expressed their willingness by communication in writing
dated 21.11.2016 to deposit the amount for getting the
documents. Accordingly, the documents were tendered to
the petitioners on 21.11.2016.
14] What weighs with this Court is that the
petitioners are enjoying second term as councillors and were
knowing that the programme for elections of the Municipal
Council, Narkhed was likely to be published in the month of
December, 2016, as the tenure of the body comes to an end
in the month of February, 2017. If the petitioners were really
interested in getting the documents and the information
asked for in respect of six items mentioned in their
application by paying the amount, the same could have
been done immediately after 22.02.2016 when the State
Government instructed the Collector, Nagpur, to supply the
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documents demanded by the petitioners. It is not the case of
the petitioners that they were ready and willing to deposit the
requisite amount prior to 21.11.2016 and in spite of it, there
was refusal to supply the documents. The petitioners could
have easily obtained it from the Chief Officer of the
Municipal Council, who supplied them the documents on
21.11.2016. As soon as the petitioners deposited the
amount on 21.11.2016, the documents were supplied. The
supply of documents is in immediate deposit of the amount.
15] The petitioners were supplied earlier with the
necessary documents running into 255 pages enclosed
alongwith the Collector's report dated 01.01.2016. The
petitioners approached this Court by filing Writ Petition No.
840 of 2016 to challenge the show cause notice dated
21.01.2016 issued by the Collector. Initially, this Court
issued notice on 05.02.2016 and granted interim relief in
terms of prayer clause (ii), staying thereby the proceedings
of show cause notice. The petition was ultimately withdrawn
on 10.03.2016 and thereafter again an application was
made on 06.04.2016 for supply of information in respect of 6
items narrated in the application, addressed to the Collector,
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Nagpur. The ground on which the charges of misconduct
levelled against the petitioners are defended before this
Court, could have easily been raised by filing reply to the
show cause notice by reserving their rights to submit
additional reply upon receipt of the documents or could have
been heard by this Court upon demonstration as to how the
documents demanded are relevant.
16] So far as the merits of the matter are
concerned, the order passed by the Minister refers to the
acts of misconduct contained in the report of the Collector
dated 01.01.2016. The Collector had called upon the
petitioners to furnish explanation in respect of the alleged
charges. After considering the explanation, the report
contains a finding that the petitioners are guilty of committing
the acts of misconduct. In the absence of any explanation
on merits before the Minister, the satisfaction about the
report submitted by the Collector to disqualify the petitioners
cannot be termed as contrary to the provisions of sub-
section (1) of Section 42 of the said Act. The satisfaction is
about the guilt of the petitioners on the basis of the report
along with the documents accompanied thereto.
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17] The principles laid down by the Apex Court in
the decisions relied cannot be disputed. No doubt, the
democratically elected representatives cannot be removed
from the office without giving them reasonable opportunity of
being heard in the matter as contemplated by sub-section
(3) of Section 42 of the said Act. But, if the reasonable
opportunity offered is not availed of and on the contrary, the
record and events indicate willful avoidance of adjudication
of the matter prior to the end of tenure, then in such facts
and circumstances of the case, the Court can refuse to
exercise discretion to entertain a writ petition.
18] In view of above, I do not find any reason to
interfere in the order impugned in this petition. The petition is
dismissed. No order as to costs.
JUDGE
Rvjalit
