Kewalbai Dattu Aurade vs The State Of Maharashtra And ...
2016 Latest Caselaw 586 Bom

                                                   1                           WP-413.16


                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                               
                           BENCH AT AURANGABAD

                           WRIT PETITION NO. 413 OF 2016




                                                       
                                      WITH
                         CIVIL APPLICATION NO. 657 OF 2016

     Smt. Kewalbai W/o Dattu Aurade,
     Aged: 50 years, Occ: Household




                                                      
     & President of Municipal Council,
     Omerga, Dist. Osmanabad,
     R/o : Omerga, Dist. Osmanabad.                             ...PETITIONER

              versus




                                        
     1.       The State of Maharashtra
              Through the Secretary to the
                             
              Government of Maharashtra
              in Urban Development Department,
              Mantralaya, Mumbai - 32.
                            
     2.       The Hon'ble State Minister,
              Urban Development Department,
              Mantralaya, Mumbai -32
      

     3.       The Collector, Osmanabad,
              Dist. Osmanabad.
   



     4.       The Chief Officer,
              Municipal Council, Omerga,
              Dist. Osmanabad.





     5.       Abdul Razzak S/o Babulal Attar,
              Aged: Major Occ: Agriculture,
              & Councillor of Municipal Council,
              Omerga, Dist. Osmanabad,
              R/o : Omerga, Dist. Osmanabad.                    ...RESPONDENTS





                                           .....
     Mr.   V.D. Sapkal, Advocate holding for
     Mr.   L.C. Patil, Advocate for petitioner
     Mr.   A.G. Girase, Government Pleader and
     Mr.   S.N. Kendre, Asstt. Govt. Pleader for respondents No. 1 to 3
     Mr.   S.S. Thombre, Advocate for respondent No. 4
     Mr.   N.P. Patil, Jamalpurkar, Advocate for respondent No. 5
                                           .....

                                   CORAM : SUNIL P. DESHMUKH, J.

DATED : 14th MARCH, 2016.

                                                 2                           WP-413.16


     ORAL JUDGMENT :-




                                                                            

1. Rule. Rule made returnable forthwith. Heard learned counsel for

parties finally, with consent.

2. After hearing learned counsel for the parties, the question that

emerges for consideration is, as to whether it can be said that sufficient

opportunity had not been afforded to the petitioner to answer the

charges levelled against her pursuant to show cause notice dated 30-

11-2015 (Exhibit-G) at page No. 91.

3. Mr. Sapkal, learned counsel for petitioner vehemently submits

that noble principles of natural justice have not been adhered to at all.

He submits that proceedings to unseat petitioner from the seat of

President of Municipal Council, Omerga are being conducted in haste

without giving proper opportunity to the petitioner and/or for that

matter without hearing her. He submits that even otherwise on merits

respondents have no case against the petitioner at all. Thus, it is an

attempt to unseat the petitioner by adopting dubious means. It is

submitted by the learned counsel that, in the process, the petitioner is

being kept away from the proceedings in order to avoid possible failure

of the proceedings. The impugned order tantamounts to condemnation

without hearing.

4. Despite request for time, according to learned counsel, without

passing any orders on applications, the matter has been purportedly

heard on 31-12-2015 and order came to be passed on 05-01-2016. He

submits that even otherwise there is no reflection of application of

3 WP-413.16

independent and objective mind to the facts involved in the case and as

to whether section 55B of the Act of 1965 can be at all attracted in the

circumstances. The authority has not weighed the facts or law and has

cursorily gone through the proceedings.

5. Learned counsel for respondents vehemently submit that there

had been gross breach by the petitioner in discharging official duties

and she had been guilty of disgraceful conduct while holding office as

President of Municipal Council, Omerga, more particularly, referable to

section 81(1) of the Maharashtra Nagar Parishad, Nagar Panchayat and

Industrial Township Act, 1965 ( for short " Act of 1965"). According to

them, position clearly emerges that the breach as alleged against the

petitioner has been admitted having regard to the contents of writ

petition itself. Even otherwise her demeanor is quite blatant and she

does not deserve any sympathy.

6. Mr. Girase, learned Government Pleader states that it cannot be

said that matter suffered infirmity of compliance of principles of natural

justice. Practically the principles and rules may have little efficacy in

the present petition. Taking into account observations as have been

quoted by learned single Judge of this court in paragraph No. 28 of

judgment dated 22-12-2014 in writ petition No. 10961 of 2014 as

extracted from judgment of the Supreme Court in the case of Biecco

Lawrie Ltd. and another vs. State of West Bengal and another reported in 2009

(10) SCC 32, it is being urged that no indulgence be shown to the

petitioner at all. With reference to quotation as appearing in paragraph

No. 28 of the judgment of learned single Judge of this court he submits

4 WP-413.16

that contents of the petition themselves are sufficient to show that

disqualification has been incurred having not adhered to the

requirements of the provisions of section 81(1) of the Act of 1965. He

further submits that the impugned order may not be faulted simply on

the ground of non adherence of principles of natural justice having

regard to aforesaid position.

7. Mr. N.P. Patil, Jamapurkar, learned counsel appearing for

respondent No. 5 submits that the petition is not tenable and is

misconceived having not made party to three from four complainants,

upon whose application/complaint, proceedings had been initiated

against the petitioner. He further submits that rest of the three

complainants are required to be arraigned as parties to the petition and

deserve to be heard in the matter. Even notice to them is also must. In

case, they are impleaded in the matter as party respondents, notice to

them shall also be issued. The petition deserves to be dismissed in

limine for want of necessary parties.

8. Mr. S.S. Thombre, learned counsel appearing for respondent

No. 4 submits that because of the breaches committed by the

petitioner, to hold meetings, even after directions by the Collector and

then meetings being held pursuant to orders of the Collector, is indeed

an indication of that not only breaches by the petitioner, however,

those had a drastic fall out against official as actions have been

directed to be initiated against officers concerned, he therefore,

supports the impugned order. He further submits that such incumbent

may put in peril other officials in the municipal council.

5 WP-413.16

9. Mr. Sapkal, learned counsel countering submissions advanced

on behalf of respondents, at the outset submits that contention of

learned counsel on behalf of respondents that the complainants are

necessary parties to the petition is not tenable and cannot be given any

regard to. He refers to and relies on a decision of the Supreme Court in

the case of Ravi Yashwant Bhoir Vs. District Collector, Raigad and others

reported in 2012 (2) (BCR), 859 and emphasises rationale applied by the

Supreme Court to consider that as to how, in such cases, the

complainants are not necessary parties. He submits that even going by

the complaints made, it cannot be said such breaches would call for

disqualification upon allegations of misconduct or disgraceful conduct or

negligence in carrying on business of Municipal Council. He purports to

rely on quite a few paragraphs of said judgment.

10. Taking into account overall contentions as have been advanced

by the learned counsel for parties, the position emerges that, notice to

petitioner by the State purportedly had been issued on 30-11-2015, it

bears out ward date 01-12-2015. There is no report as to when the

notice was served on petitioner. It appears that petitioner had applied

for a month's time on 15-12-2015 before the State authority. It

appears that no order had been passed on said application. From

affidavit-in-reply on behalf of respondent No. 5, position further

emerges that some notice is purportedly issued by office of the State

Authority on 22-12-2015 of the date scheduled on 29-12-2015 for

hearing. It further appears that there had been application moved on

31-12-2015 on behalf of the petitioner by her advocate, seeking further

6 WP-413.16

time to file written statement. No order appears to have been passed

on said application.

11. The impugned order as annexed to the petition discloses that the

petitioner, had sought time on two occasions i.e. on 15-12-2015 and

on 30-12-2015. On 31-12-2015 matter had been purportedly heard.

From the extracts of paragraphs No. 4 and 5 of the impugned order

dated 05-01-2016, it appears that it is very difficult to say that the

authority concerned had applied its mind, at least order does not show

application of mind to the factual and legal position. As such, order is

deficient not only in respect of non observance of principles of natural

justice but also falls short for want of objective application of mind. In

the circumstances, I deem it appropriate to set aside the impugned

order and remit the matter to the State Authority for reconsideration

after affording opportunity to all the concerned including the petitioner.

12. In the circumstances, the impugned order dated 05-01-2016

passed by the State Minister, Urban Development Department

Maharashtra State, Mantralaya, Mumbai stands set aside. The parties

concerned to appear before the State Authority on 23 rd March, 2016.

The parties shall abide the schedule stipulated by State Authority. It is

expected that the petitioner shall submit her reply on appearance.

Having regard to dispute involved and intensity with which the parties

have approached, the State Authority shall dispose of the matter

pending before it by affording opportunity to all concerned including the

petitioner as expeditiously as possible preferably within a period of four

weeks from the date of appearance of the parties.

7 WP-413.16

13. It is being informed that election to the post of President of

Municipal Council, Omerga had been conducted pursuant to the election

programme. However, the position is that declaration of result of that

election has been stayed by this court under order dated 22-01-2016,

said position be continued during pendency of proceeding before the

State Authority.

14. Writ petition stands disposed of in above terms. Rule is made

absolute accordingly.

15.

In view of aforesaid, pending civil application does not survive

and stands disposed of accordingly.

Sd/-

( SUNIL P. DESHMUKH, J. )

MTK ***