Bombay High Court
Shri Sudhir S/O Daulatchand ... vs State Of Maharashtra Through The ... on 7 July, 2016
Bench: A.S. Chandurkar
908-J-WP-5057-15 1/6
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.5057 OF 2015
WITH
WRIT PETITION NO.5058 OF 2015
WITH
WRIT PETITION NO.5059 OF 2015
WITH
WRIT PETITION NO.5069 OF 2015
Sudhir s/o Daulatchand Kothari
Aged about 58 years,
Occ. Legal Practitioner,
R/o Jagannath Ward, Hinganghat. ... Petitioner.
-vs-
1. State of Maharashtra
Thr. The Honourable Minister
Urban Development Mantralaya,
Mumbai 32.
2. Additional Commissioner and Regional
Director Municipal Administration, Nagpur.
3. Deputy Chief Auditor (Senior)
Local Fund Audit State of Maharashtra,
Nagpur.
4. Collector, Wardha. ... Respondents.
Shri Kandhari, Advocate h/f Shri Anjan De, Advocate for petitioner.
Shri K. L. Dharmadhikari, Assistant Government Pleader for respondent
No.1/State in W.P.Nos.5057/2015, 5059/15 and 5069/15.
Shri A. M. Kadukar, Assistant Government Pleader for respondent No.1/State
in W.P.No.5058/2015,
::: Uploaded on - 08/07/2016 ::: Downloaded on - 30/07/2016 08:30:35 :::
908-J-WP-5057-15 2/6
CORAM : A.S.CHANDURKAR, J.
DATE : JULY 07, 2016
Common Judgment :
Rule. Rule made returnable forthwith and heard finally with
consent of learned counsel for the parties.
Since common questions arise in these writ petitions, they are being
decided by this common judgment.
2.
The petitioner is aggrieved by the order dated 27/02/2015 passed by
the Honourable Minister, Urban Development Department in proceedings
initiated under provision of the Maharashtra Local Fund Audit Act, 1930 (for
short, the said Act). By the impugned order the appeals preferred by the
petitioner have been dismissed.
3. In proceedings initiated under provisions of the said Act, on the basis
of an audit report prepared by the Deputy Chief Auditor, liability came to be
fixed on the petitioner alongwith others on 30/12/2008. As per this order,
the petitioner was held liable to make necessary payments in terms of the
audit report of the year 2005-06. Being aggrieved, the petitioner had filed an
appeal before the State Government. By the impugned order the aforesaid
appeal filed by the petitioner has been dismissed and the order passed by the
Divisional Commissioner/Regional Director, Municipal Administration came
908-J-WP-5057-15 3/6
to be confirmed.
4. On behalf of the petitioner, it is submitted that though the appeals
were filed in the year 2009, there was no progress whatsoever in the same.
Writ Petition No.4713 of 2014 came to be filed in this Court with a prayer
that the aforesaid appeals be decided within a time frame. By order dated
02/09/2014, the writ petition came to be disposed of with a direction to the
State Government to decide the appeals within a period of four months from
the date of appearance of the parties. According to the petitioner, the
Chief Officer issued a notice on 21/02/2015 which was received by the
petitioner on 24/02/2015 stating therein that the aforesaid appeals would be
heard on 26/02/2015. On 25/02/2015, the hearing of aforesaid appeals was
adjourned to 27/02/2015. The petitioner on 26/02/2015 issued a
communication to the respondent No.1 stating therein that the aforesaid
notice was received on 25/02/2015 and sought supply of necessary
documents. However, on the same day the appeals came to be decided
resulting in their dismissal. It is submitted that the impugned order is liable
to be set aside on the ground that no sufficient opportunity was granted to
the petitioner before taking a decision in the appeals. It is also submitted
that the material that was relied upon by the State Government against the
petitioner was also not supplied to him. It is therefore submitted that the
impugned orders are liable to be set aside on this count. A challenge is also
908-J-WP-5057-15 4/6
raised to the initial order dated 31/12/2008 fixing the liability on the
petitioner.
5. Shri K. L. Dharmadhikari and Shri A. M. Kadukar, the learned
Assistant Government Pleaders for the respondents supported the impugned
orders. It was submitted that the impugned order has been passed after
considering all relevant aspects of the matter. Shri Dharmadhikari submitted
that on the basis of audit report for the year 2005-06, the liability has been
fixed on the petitioner. Relying upon the affidavit filed on behalf of the
respondent No.2 it was submitted that the conclusions arrived at in the
impugned order are based on material available on record and hence there is
no case made out to interfere in writ jurisdiction.
6. The documents on record indicate that the petitioner being aggrieved
by the order dated 31/12/2008 had preferred an appeal under Section 13(1)
of the said Act. As the appeals were pending for quite sometime, directions
to decide the same within a period of four months from the date of
appearance were issued in W.P.No.4713 of 2014. Pursuant thereto, notice
came to be issued on 21/02/2015 fixing the date of hearing on 26/02/2015.
This date was thereafter postponed to 27/02/2015. This was the first date of
appearance. The petitioner on 26/02/2015 requested for supply of necessary
documents and also a time to participate in the hearing. Admittedly the
908-J-WP-5057-15 5/6
petitioner who was the respondent No.6 in Writ Petition No.4713/2014 was
not present when the said writ petition came to be decided. The directions
therein were to decide the appeals within a period of four months from the
date of appearance. 27/02/2015 being the first date of appearance, the
appeals could have been decided within a period of four months from the
said date. Instead, without supplying him the necessary documents, the
appeals came to be decided on the same day. The grievance of the
petitioner regarding lack of sufficient opportunity is thereafter justified. It is
to be noted that by the impugned order liability has been fixed on the
petitioner under provisions of the said Act. Considering the consequences of
such adjudication, a fair opportunity ought to have been granted to the
petitioner before deciding the appeals. There was no reasons whatsoever to
proceed with the hearing of the appeals on the first date of appearance itself.
Hence on this short ground, the impugned orders are liable to be set aside.
Though the order dated 31/12/2008 passed by the respondent No.2 is also
under challenge in these writ petitions, the same being the subject matter of
challenge in the appeals, the points raised in that regard are kept open.
7. In view of aforesaid, the writ petitions are allowed by making the Rule
absolute in terms of prayer clause (i). The State Government shall again
hear the aforesaid proceedings on its own merits and decide the same within
period of four months from the date of appearance of the petitioner before it.
908-J-WP-5057-15 6/6
The petitioner shall appear before the respondent No.1 on 25/07/2016. It is
made clear that this Court has not considered the findings recorded on merits
by the State Government and the appeals shall be decided on their own
merits after giving due opportunity to the petitioner and in accordance with
law.
Rule is made absolute in aforesaid terms with no order as to costs.
ig JUDGE
Asmita
