Bombay High Court
Sau. Pratibha Saurab @ Munna ... vs State Of Maharashtra, Through Its ... on 4 April, 2017
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Criminal Writ Petition No.664 of 2015
Sau. Pratibha Saurab @ Munna Tiwari,
Aged about 36 years, Occ. Social Worker,
R/o.-Vivekanand Colony, Warud, Distt,. Amravati. .... Petitioner.
Versus
1] State of Maharashtra, through its Secretary,
Urban Development Department, Mantralaya,
Mumbai-32.
2] Commissioner-cum-Director
Municipal Administration Deptt.,
Pochkhanwala Marg, Worli, Mumbai-30.
3] Divisional Commissioner, Amravati Division, Amravati.
4] District Collector, Amravati.
5] Hemlata Ravindra Kubde,
President (2011-2014),
Municipal Council, Warud, Distt. Amravati.
6] Ravindra Parasram Thorat,
President (2014 onwards)
Municipal Council, Warud, Distt. Amravati.
7] Chief Officer, Municipal Council Warud, Distt. Amravati.
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8] Sau. Kaisarijahan Ansar Khan
Vice-President (2011-2014),
Bangla Chowk, Warud, Distt. Amravati.
9] Liladhar Panjabrao Belsare,
Vice-President (2014),
Laxminagar, Warud, Distt. Amravati.
10] Kishor Sahebrao Mahure,
near Jagruti School, Warud, Dist. Amravati.
11] Mahendra Krishnarao Deshmukh,
Deshmukhpura, Warud, Distt. Amravati.
12] M/s. Universal Engineering and Fabrication,
through its Proprietor Mrs Archana Ramkrishna Barde,
26, Fiske Layout, Dhantoli,
At Post Katol, Tah. Katol, Distt- Nagpur.
13] M/s. Universal Chemicals
through its Proprietor
Mrs. Archana Ramkrishna Barde,
26, Fiske Layout, Dhantoli,
At Post Katol, Tah. Katol, Distt. Nagpur.
14] Superintendent of Police,
Anti Corruption Bureau, Amravati. .... Respondents.
Shri Shashibhushan Wahane, Advocate for petitioner.
Shri V.A. Thakary, Addl.PP for non-applicant nos.1 to 4 and 14.
Shri N.R. Saboo, Advocate for resp. no.7.
Shri M.I. Dhatrak, Advocate for resp. nos. 12 and 13.
Shri M.P. Khajanchi, Advocate for resp. nos. 5, 6, 8 to 11.
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Coram : B.P. Dharmadhikari &
V.M. Deshpande, JJ.
th
Dated : 04
April, 2017.
ORAL JUDGMENT (Per B.P. Dharmadhikari, J.)
This Court on 11-02-2016 has passed the following order :-
"Heard Shri Shashibhushan Wahane,
learned Counsel for the petitioner, Shri V.A.
Thakare, learned A.P.P. for respondent nos. 1 to 4
and 14, Shri M.P. Khajanchi, learned Counsel for
respondent nos. 5, 6,8 to 11, Shri N.R. Saboo,
learned Counsel for respondent no.7 and Shri M.I.
Dhatrak, learned Counsel for respondent nos. 12
and 13.
2. Before observing anything on merits of
the controversy, we find it appropriate to know that
a responsible office like the Divisional
Commissioner, Amravati has filed his personal
affiliated on 26.11.2015, pointing out the procedure
required to be followed under the provisions of
Bombay Local Funds Audit Act, 1930. It appears
that the audit objection pointed out by the audit
party have been replied to by the Municipal council
on 26.09.2014. Property thereof needs to be
verified by the local fund office and thereafter loss
if any, and therefore the amount recoverable
(surcharge) is liable to be worked out.
3. He affidavit though dated 26.11.2015
does not point out the steps taken by the local
funds office for over a period of 13 months.
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4. We are therefore not satisfied with that
affidavit. We direct the respondent.3 to file suitable
affidavit in this respect within a period of three
weeks. Office to list the matter thereafter.
5. Copy of the order be furnished to
learned counsel for the parties to act upon."
2] Thereafter on 19-08-2016, the following order has been
passed :-
" Before proceeding further to pass any
effective orders, we find it proper to direct the
respondent no.1 or respondent no.2 or their officers
who are looking into compliance with audit
objection, to evaluate the situation and to pass
appropriate orders either accepting or rejecting that
compliance, within six weeks from today.
While undertaking this exercise, the costs of
Fogging Machines purchased by other Local Bodies
all over the State of Maharashtra shall also be taken
into account.
List after six weeks.
Chief Officer of the Municipal Council is
present. He is exempted from personal appearance
unless specifically ordered.
Steno copy of this order be supplied to
learned APP free of cost, to act upon."
3] Because of these orders, the Deputy Regional Director Municipal
Administration has on 01-12-2016 filed an affidavit vide Stamp No.4155
of 2016. Along with affidavit the various documents are filed.
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4] Looking to the disputed nature of documents and the subject
matter, in this jurisdiction we are not inclined to record any conclusive
finding. We keep all contentions of rival parties in relation to the data
mentioned in the said documents forming part of Annexure-R-2 open.
Annexure-R-2 is the communication sent by the Regional Deputy
Director of Municipal Administration, Amravati to his various
counterparts in other Revenue Divisions in the State of Maharashtra
inviting information about the purchase of Fogging Machines by
municipal councils under them in years 2010 onwards up to 2016 with
specifications and price. The chart mentioned (supra) after this letter
contains that data.
5] The Warud Municipal Council with which we are concerned in the
present matter is shown to have purchased Swing Fogging Machines
made in German for Rs.5,45,000/- in year 2010-2011. Mehkar Municipal
Council has in year 2016-2017 purchased a Vehicle Mounted Fogging
Machines for Rs.8,08,194/-. Bramhapuri Municipal Council has
purchased a Vehicle Mounted Model Swing Fog in year 2015 for
Rs. 5,95,000/-.
6] With the assistance of the learned Advocates for the parties, we
therefore tried to find out the costs of Fogging Machines simplicitor.
The said chart shows that, Achalpur Municipal Council has purchased
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Self Start Fogging Machines for Rs. 49,900/- in 2014-2015, Anjangaon
Surji Municipal Council has purchased the same type of machine for
Rs.4,85,000/- in year 2015, Chandur Railway Municipal Council has
purchased the same machine in year 2012 for Rs.4,85,000/-,
Chikhaldara Municipal Council has in year 2013 purchased Swing Fog
Fogging Machines made in German with identical specifications as that
of Warud Municipal Council for Rs. 7,04,095/-. Those purchases are in
year 2013. There are few other instances also wherein 2013-2014
Nandura Municipal Council is shown to have purchased two Fogging
Machines for Rs. 82,400/-.
7] According to the respective Advocates who appear for private
parties and supplier, the price difference is on account of wattage of
the machine, its capacity and other technical specifications. The make
also, according to them, plays an important role.
8] We find that an audit objection was raised in terms of the
provisions of the Bombay Local Funds Audit Act, 1930 and compliance
submitted thereof seems to have been accepted. However, the material
produced before this Court does not show any uniform policy in this
respect laying down the standard specifications or type or make of
machine to be purchased by such local bodies.
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9] During hearing the learned Advocate for the petitioner has
produced a communication dated 17-03-2017 sent by the Assistant
Director of Local Audit, Amravati to the Chief Officer of Municipal
Council, Warud. It is marked as Exhibit-'X' only for identification.
10] The respective Advocates appearing for the respondents and
learned Additional Public Prosecutor have opposed the production of
document at this stage. They also sought an opportunity to go through
it and to rebut its contention as the document has been produced for
the first time without any affidavit during arguments. Again as already
recorded supra, we are not reaching to any conclusion in the present
order. Prima facie perusal of this communication shows that, the said
Authority has found further verification of facts in relation to the
purchase of Fogging Machine by Warud Municipal Council necessary.
Apart from this, it has also pointed out that, an Auto Rickshaw
allegedly purchased in 2009-2010 by that Municipal Council has been
registered with RTO for the first time in 2015. While registering, year of
manufacture has been shown to be 2011. The Authority has found it
necessary to verify the facts in relation to five vehicles mentioned in this
communication (Exhibit-'X').
11] We reiterate that looking to the need of verification of facts, we
are not recorded any finding on any of the rival contentions. Reference
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to facts is only to point out the need for verification of facts by the
Authorities.
12] The petitioner has prayed for investigation through respondent
no.14 (Superintendent of Police Anti Corruption Bureau, Amravati) into
the entire affairs.
13] Learned Advocate Shri Khajanchi has pointed out that the office
of respondent no.14 was never approached earlier and prayer clauses
in this petition therefore not correct. However, taking into overall view of
the matter, as we find verification of facts necessary, we direct that
Authority to undertake the exercise of verification on the basis of the
orders passed by this Court earlier and to complete the enquiry within
next three months. Further appropriate steps shall be taken by that
Authority as per the outcome of the report.
14] As we find from the chart produced along with reply affidavit
mentioned supra that, there is no uniform policy about the purchase of
Fogging Machines in the State of Maharashtra and therefore the
Fogging Machines have been purchased by the various Municipal
Councils at varied rates, we direct the respondent nos. 1 and 2 to
immediately proceed to lay down the standards in this respect. The
Municipal Councils shall be informed accordingly and till then no
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purchase of Fogging Machines shall be allowed except without previous
permission of Respondent No.2.
15] With this direction, we partly allow the Writ Petition and dispose
of it. No costs.
JUDGE JUDGE
Deshmukh
