Premlata Parmeshwar Topge vs The State Of Maharashtra And ...
2021 Latest Caselaw 15027 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           BENCH AT AURANGABAD

                          WRIT PETITION NO. 10212 OF 2021


Premlata Parmeshwar Topge
Age : 45 years, Occ. Household
R/o Omerga, Tq. Omerga,
District Osmanabad.
                                                      PETITIONER

      VERSUS

1. The State of Maharashtra
   Through Hon'ble Minister,
   Urban Development Department,
   Mantralaya, Mumbai.

2. Hansraj Annarao Gaikwad
  Age : Major, Oc. Business,
  R/o Omerga, Tq. Omerga,
  District Osmanabad.

3. Govind Dinkar Ghodke
  Age : Major, Occ. Business,
  R/o as above.

4. Shilpa Akash Shinde,
  Age : Major, Occu. Business,
  R/o As above.

5. Pandharinath Kashinath Kone,
  Age : Major, Occ. Business,
  R/o As above.

6. Sunandabai Gulab Warwate,
  Age : Major, Occu. Business,
  R/o As above.




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7. Rajeshwari Nagesh Swami,
  Age : Major, Occ. Business,
  R/o As above.

8. Irappa Bhimsu Ghodake,
  Age : Major, Occ. Business,
  R/o As above.

9. Anusaya Shankar Nagde
  Age : Major, Occ. Business,
  R/o As above.

10. Rubina Azruddin Attar,
  Age : Major, Occ. Business,           (Respondent Nos.3 to 10 deleted as
  R/o As above.                          per Court order dated 15/9/2021)


11. Sanjay Vasantrao Pawar,
  Age : Major, Occ. Business,
  R/o As above.

12. Santosh Baburao Sagar,
  Age : Major, Occ. Business,
  R/o As above.

13. Pratibha Tanaji Chavan,
  Age : Major, Occ. Business,
  R/o As above.

14. Jayashir Sanjaykumar Chavan,
  Age : Major, Occ. Business,
  R/o As above.

15. Balaji Machindra Patil,
  Age : Major, Occ. Business,
  R/o As above.

16. Arun Nagnathrao Igave,
  Age : Major, Occ. Business,           (Respondent Nos.12 to 16 deleted as
  R/o As above.                          per Court order dated 15/9/2021)



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17. The District Collector,
  Osmanabad, District Osmanabad.

18. The Chief Officer,
  Municipal Council, Omerga,
  District Osmanabad.                             RESPONDENTS

                                     .....
Mr.V.D.Sapkal,Senior Advocate i/b Mr.L.C.Patil,Advocate for the petitioner
Mr.D.R.Kale Government Pleader, for respondent State
Mr.N.P.Patil Jamalpurkar, Advocate for respondent nos.2 and 11
Mr.P.D.Bachate,Advocate for respondent no.18.

                                       .....

                                       WITH
                       CIVIL APPLICATION NO. 26970 OF 2021
                       IN WRIT PETITION NO. 10212 OF 2021


1. Santosh s/o Baburao Sagar,
   Age : 45 years, Occu. : Business,
   R/o Omerga, Tq. Omerga,
   Dist. Osmanabad

2. Arun s/o Nagnathrao Igve,
   Age : 42 years, Occ. Business,
   R/o As above

3. Irrappa s/o Bhimsu Ghodke,
   Age : 36 years, Occ. Business,
   R/o As above                                           APPLICANTS

        VERSUS

1. The State of Maharashtra
   Through Hon'ble Minister,
   Urban Development Department,
   Mantralaya, Mumbai-32



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2. The District Collector, Osmanabad,
   Tq. & Dist. Osmanabad

3. Chief Officer,
   Omerga, Tq. Omerga,
   Dist. Osmanabad

4. Premlata w/o Parmeshwar Topge,
   Age : 45 years, Occ. Household,
   R/o Omerga, Tq. Omerga,
   Dist. Osmanabad                                   RESPONDENTS

                                      .....
Mr.S.S.Gangakhedkar, Advocate for Applicant-Intervener
Mr. D.R.Kale, G.P. for Respondent-State
Mr.V.D.Sapkal,Senior Advocate i/b Mr.L.C.Patil,Advocate for the Respondent
No. 4
                                     ......


                                    CORAM :    MANGESH S. PATIL, J.

JUDGMENT RESERVED ON : 07/10/2021 JUDGMENT PRONOUNCED ON : 14/10/2021

JUDGMENT :-

Heard. Rule. The Rule is made returnable forthwith. The learned

advocates for the respondents waive service. With the consent of both the

sides the matter is heard finally at the stage of admission.

2] The petitioner was a directly elected President of Municipal Council,

Omerga. He is challenging decision of the State Government taken under

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Section 55(1) and 55A, 55B of the Maharashtra Municipal Councils Nagar

Panchayats and Industrial Townships Act, 1965 (hereinafter the Act) and

disqualifying her from becoming a Councillor for a period of 6 years.

3] On a complaint dated 27.10.2020 of some of the Councillors

made to the respondent Collector, regarding various misdeeds of the

petitioner, the Collector Osmanabad appointed a committee headed by Chief

Officer of the Municipal Council Kallamb to enquire into the allegations, by

his order dated 31.12.2020. The committee conducted an enquiry and

submitted its report on 27.03.2021. In turn the Collector Osmanabad by his

letter dated 3.6.2021 forwarded the report to the State Government soliciting

appropriate action. The State Government served a notice to the petitioner in

response to which she submitted her reply and thereupon the impugned order

was passed holding her guilty of following acts which can be broadly

described as under :

[i] Misusing the powers under Section 58(2) of the Act for misappropriating amount by awarding tenders without following the prescribed procedure.

[ii] Failure to undertake technical inspection and quality check in respect of the works that were undertaken exceeding the expenditure of Rs. 10 lakh.

[iii] Inspite of resolution passed by the Municipal Council appointing two persons as law officers was

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cancelled by the Collector, allowed them to illegally continue to function.

[iv] Floating tenders, awarding contracts and making payments without following the Government orders.

4] The learned senior Advocate Mr. V.D.Sapkal for the petitioner at

the outset fairly concedes that though in the grounds averred in the petition a

dispute is raised regarding applicability of the provisions of Sections 55(1)

and 55(1)(3) of the Act, he is not pressing that issue and there is no illegality

in invoking those provisions while passing the impugned order.

5] Taking a leaf out of these very provisions, the learned senior

Advocate submits that since a drastic action of removal of directly elected

President was being sought to be taken, the provisions should be strictly

applied and necessary steps ought to have been taken within the time frame

provided for in this provision. He would point out that sub Section 2 of

Section 55(1) requires the Collector to undertake an enquiry into the charges

and complete it within a month from the date of receipt of the requisition. He

would further submit that according to the proviso to Sub Section 2 such

enquiry cannot extend beyond the period of 3 months and even for such

extended period a prior assent of the State Government is necessary. He

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would further point out that according to Sub Section 3 the Collector has to

record a finding and forward it to the Government. He would therefore, point

out that in the present matter the Collector had received the complaint on

27.10.2020 but, the enquiry was not concluded within the stipulated period of

one month. No assent was obtained from the Government since the enquiry

was extending beyond the period and he submitted the report to the

Government on 3.6.2021. Again the Collector himself did not undertake any

enquiry and had appointed a committee. Even if he had taken help of such a

committee in enquiring into the allegations, he should have applied his mind

and should have come to a conclusion before forwarding it to the

Government. He would submit that the Collector has simply forwarded the

report without application of mind and based on such report to which the

Collector had not recorded any finding, the impugned order has been passed.

It clearly defies the statutory mandate and is illegal for this reason alone.

6] The learned senior Advocate submits that the Supreme Court in

the case of Ravi Yashwant Bhoir V/s The Collector, District Raigad and others;

(2012) 4 SCC 407 has elaborately considered the scope and ambit of the very

same provisions. If the State Government was to take a drastic action of non

sitting the petitioner who was a directly elected President, which has the

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consequence of not only depriving her of completing her turn but, even

disqualifies her for being elected as a Councillor for next six years, the

procedure ought to have been strictly followed. In support of his submissions

he particularly referred to the observations of the Supreme Court in paragraph

No. 28.

"28 In view of the above, the law on the issue stands crystallized to the effect that an elected member can be removed in exceptional circumstances giving strict adherence to the natural justice and giving an incumbent an opportunity to defend himself, for the reason that removal of an elected person casts stigma upon him and takes away his valuable statutory right. Not only the elected office bearer but his constituency/ electoral college is also deprived of representation by the person of his choice. A duly elected person is entitled to hold office for the term for which he has been elected and he can be removed only on a proved misconduct or any other procedure established under law like 'No Confidence Motion' etc. The elected official is accountable to its electorate as he has been elected by a large number of voters and it would have serious repercussions when he is removed from the office and further declared disqualified to contest the election for a further stipulated period.

7] Mr. Sapkal would further, referring to the decision in the case of

Ravi Bhoir (Supra), submit that the impugned decision has been reached

without recording any reasons. He would submit that the alleged acts do not

constitute misconduct inasmuch as accepting the allegations which are stated

to have been proved, all these actions were the result of a consensus in the

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form of resolutions passed by the Municipal Council. He would further point

out that even according to the initial report forwarded by the Collector, except

one charge, the rest of the charges clearly demonstrate that apart from the

petitioner, the Chief Officer, other officers and even some Councillors were

responsible. Thus, according to the learned senior Advocate, if the alleged

actions were the result of a consensus in such a form, the petitioner alone

could not have been held to have committed the misconduct.

8] By referring to the interpretation of the word "misconduct", in the

decision of Ravi Bhoir (Supra) the learned Advocate would submit that the

alleged actions attributed to the petitioner would not fit into the definition of

misconduct as interpreted therein.

9] Mr. Sapkal would then submit that neither the communication dated

3.6.2011 forwarded by the Collector to the State Government nor the

impugned order demonstrates, any application of mind by the authorities

independently. They are absolutely devoid of any reasonings. Simply by

referring to the report forwarded by the Collector in few lines directly findings

have been recorded holding the charges to have been proved. Again by

referring to the decision in the case of Ravi Bhor (Supra) Mr. Sapkal would

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submit that since a drastic action of removal of a directly elected President

was being proposed, it was highly imperative for not only the Collector but,

even for the State Government to have recorded reasons for arriving at the

conclusions to which they have. In the absence of such reasonings, the

impugned order does not fit into and constitute any adjudication which the

law expects to be before taking drastic action of the nature taken against the

petitioner.

10] The learned Government Pleader supported the order.

11] The learned Advocate Mr. N.P. Patil-Jamalpurkar for the

respondent Nos. 2 and 11 referring to the affidavit in reply of the respondent

Sanjay Vasantrao Pawar submitted that since the petitioner was a directly

elected President, her conduct ought to have been above board. Though the

provisions require the Collector to conduct an enquiry, the provision has to be

understood pragmatically. No fault can be found with him if he has appointed

a committee to conduct the enquiry. After such committee conducted the

enquiry he has forwarded it which implies that he has subscribed to the

conclusions drawn by it. It is not expected of him to have recorded reasons

for arriving at any conclusion. He would then submit that even the State

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Government after extending an opportunity to the petitioner of being heard

has recorded the findings by upholding the conclusions drawn by the

committee. There is no error or illegality. The principles of natural justice

have been duly observed. Apart from the proved misconduct, the petitioner

has indulged in rampant misappropriation and misdeeds and audit is still to

be conducted. In view of such rampant misappropriation she is not entitled to

continue to hold the seat. He would cite the following decisions :

1] Biecco Lawrie Ltd. And Anr. V/s State of W.B. and Anr; AIR 2010 S.C.142 2] State of Manipur and Ors. V/s Y.Token Singh and Ors; AIR 2007 SC (Supp) 145

3] Municipal Corporation of the City of Ahmedabad V/s Ben Hiraben Manilal; AIR 1983 SC 537

4] Rameshchandra S/o Shankarlal Saboo (Dr.) V/s State of Maharashtra and ors; 2002(4) Mh.L.J.892

5] Kishore Samrite V/s State of Uttar Pradesh and others; (2013) 2 SCC 398

6] Union of India V/s Jyoti Prakash Mitter; AIR 1971 S.C. 1093.

7] Kewalbai Dattu Aurade V/s State of Maharashtra and others in Writ Petition No.3753/2016 (Coram T.V.Nalawade,J.) dated 20/10/2016

8] Sau.Yojna Bharat Mali V/s The State of Maharashtra and others in Writ Petition No.10961/2014 (Coram : Ravindra V. Ghuge,J.) dated 22/12/2014.

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12]             Mr. Gangakhedkar learned Advocate for the interveners who have

filed Civil Application (Stamp) No. 26970 of 2021 would also support the

impugned order of the State Government. He submitted that he would

subscribe to the arguments advanced by the learned Advocate Mr. N.P. Patil-

Jamalpurkar. In addition, he would submit that earlier the petitioner had filed

Writ Petition No. 7595 of 2021 in this Court questioning the show-cause

notice issued to her in the very same matter. In that proceeding she had

practised fraud upon this Court by falsely submitting that she was suffering

from Covid-19 when in fact she had actually signed bills during the period

during which according to her she was suffering. This was noted by the

Division Bench in its order dated 12.7.2021 and if such is her conduct of

practicing fraud, this Court should also follow the course that was followed in

the case of Sau. Yojana Mali (Supra). Relying upon the decision in the case of

Kishor Samrite (supra), he would point out that the allegations against the

petitioner regarding misappropriation and misdeeds were not the subject

matter in Criminal Writ Petition 580 of 2020 of this Court and there is

categorical observation made in that proceeding that the audit that was

undertaken would only report that the Clerks and Cashier had

misappropriated the fund of the Municipal Council, but, even the President

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that is the petitioner herein was actively involved. Some record to that effect

was also produced before the Division Bench and it is thereafter that it had

directed the special audit to be undertaken and completed within the time

frame. Therefore, there is no escape from the conclusion that the petitioner

has been guilty of the misconduct.

13] The learned Advocate Mr. Gangakhedkar would then point out

that the initial audit report dated 16.4.2019 is sufficient to reach a conclusion

about misappropriation by the petitioner by misusing the powers under

Section 58(2) of the Act.

14] I have carefully considered the rival submissions and minutely

perused the papers.

15] To begin with, a President can be removed for a misconduct or a

disgraceful conduct. As can be seen from the order under challenge, the

petitioner has not been found guilty of any disgraceful conduct albeit the

learned Advocates Mr. N.P.Patil-Jamalpurkar and Mr. Gangakhedkar as also

learned Government Pleader tried to castigate the alleged misconduct as

constituting a disgraceful conduct as well. It is pertinent to note that, the

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impugned order does not specifically find the petitioner guilty of any

disgraceful conduct and therefore, the submission of the learned Government

Pleader and the learned advocates cannot be accepted.

16] Before turning to the legal aspects, if one starts deciphering the

facts in the form of charges levelled against the petitioner and which have

been held to be proved, the Collector while forwarding the report with the

communication dated 3.6.2021 has nowhere recorded any reasons even

cursorily for concluding as to in what manner these charges can be said to be

substantiated. The impugned order also nowhere discloses iota of reasons.

The order runs into 9 pages and the reasonings can be found only in last one

page before the operative order. In first paragraph of the reasonings a

reference is made to how the proceeding generated including a reference to

the order passed in Criminal Writ Petition No. 580 of 2020. In Clause II of the

reasoning it has been noted that out of 28 points of allegations a special audit

was being undertaken in respect of 24 points. In Clause III it has been

mentioned that as per the Collector's report, in respect of two items that is

Item Nos. 1.3 and 7 showed that the petitioner misused the powers vested in

her under Section 58(2) of the Act and is guilty therefor. In Clause IV it has

merely been observed that though there was no irregularity in allotting

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tenders in respect of the work worth more than Rs.10 lakh, the technical

inspection and quality check were not undertaken and for which the President

that is the petitioner and the Chief Officer were responsible. In Clause V in

one line it has been mentioned that the allegation in respect of point No. 3

was already discarded by the Collector. In Clause VI it has been observed that

two persons were appointed as law officers, by passing a resolution but the

resolution was cancelled by the Collector and still they were permitted to

function and for that illegality the President, the Chief Officer and other

officers of the Municipal Council were responsible. In Clause VII it has been

observed that as per the report of the Sub Divisional Officer who had

conducted an enquiry there were some illegalities committed in floating

tenders, awarding contracts, making payments and for which apart from the

President, the auditor, the departmental head and some Councillors were

responsible. It is thereafter that the operative part can be found.

17] Such an order to my mind clearly demonstrates utter lack of

application of mind. There is a complete go-by given to the trite norms which

require the authorities exercising quasi judicial power to adjudicate the issues.

Such cryptic and unreasoned order cannot be allowed to be made the basis for

non-sitting a publicly elected President. If at all there were other rampant

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irregularities and illegalities, regarding which a special audit has been

undertaken, one cannot comprehend as to what had weighed with the State

Government in not waiting for that report and speeding up the process for

removing the petitioner. Therefore, the submission of the learned Advocate

Mr. N.P.Patil-Jamalpurkar and Mr. Gangakhedkar that apart from the charges

levelled against the petitioner she has been involved in several other misdeeds

and misconducts and therefore, she cannot be allowed to continue, is not

legally tenable.

18] One can gainfully refer to the observations in the case of Ravi

Bhoir (Supra) touching the importance of recording of reasons in paragraph

Nos. 29 to 36 and particularly the following observations relied upon in that

decision from the case of Santlal Gupta and Ors. V/s Modern Co-operative

Group Housing Society Ltd. And Ors,; (2010) 13 SCC 336 :

"28. It is a settled legal proposition that not only administrative but also judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the Court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the Court to record reasons while disposing of the case. The hallmark of order and exercise of judicial power by a judicial forum is for the forum to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration of the justice -

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delivery system, to make it known that there had been proper and due application of mind to the issue before the Court and also as an essential requisite of the principles of natural justice. "The giving of reasons for a decision is an essential attribute of judicial and judicious disposal of a matter before Courts, and which is the only indication to know about the manner and quality of exercise undertaken, as also the fact that the Court concerned had really applied its mind." The reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity. The absence of reasons renders an order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. Recording of reasons is principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected must know why his application has been rejected."

If one applies these principles to the facts in the matter in hand,

there is no escape from the conclusion that the impugned order does not fit

into the required parameters.

19] Apart from the above state of affairs, it is also important to note

that the alleged acts which have been found favour with the Government for

removing the petitioner and disqualifying her and taking into consideration

she alone is apparently being singled out. Admittedly, apart from her, even

the Chief Officer, some Councillors and other officers of the Municipal Council

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have been held to be responsible for those acts. If such is the case, one can

easily conclude that there is every room to believe that the proposed action is

prompted by some extraneous reasons. It is a clear case of malice in law as

discussed and laid down in the case of Ravi Bhoir (Supra) in paragraph No.

37:

"37 This Court has consistently held that the State is under an obligation to act fairly without ill will or malice - in fact or in law. Where malice is attributed to the State, it can never be a case of personal ill-will or spite on the part of the State. "Legal malice" or "malice in law" means something done without lawful excuse. It is a deliberate act in disregard to the rights of others. It is an act which is taken with an oblique or indirect object. It is an act done wrongfully and willfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. Mala fide exercise of power does not imply any moral turpitude. It means exercise of statutory power for "purposes foreign to those for which it is in law intended." It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, where intent is manifested by its injurious acts. Passing an order for unautorised purpose constitutes malice in law (see:- Additional District Magistrate, Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207; Union of India the Government of Pondecherry and another. v. V. Ramkrishnan and Ors., (2005) 8 SCC 394; and Kalabharati Advertising v. Hemant Vimalnath Narichania and Ors., AIR 2010 SC 3745.)"

20] The decisions cited on behalf of the respondents in the case of Sau. Yojana Mali and Kewalbai Aurade (supra) were rendered by this Court in

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the peculiar state of facts obtaining in those respective matters and are of no help to us in deciding the present Writ Petition. In the case of Sau. Yojana Mali, the President had managed to lease out the municipal properties to her near and dear ones and the fact was duly proved, whereas in the case of Kewalbai Aurade, inspite of directions by the Collector to hold meeting, the President had failed to convene the meeting and the fact was proved. In the matter in hand, as discussed hereinabove the facts have not been duly proved and apart from the fact that the impugned decision is not judicious decision in the eye of law and the alleged misconduct is found to be not a misconduct which can be attributed to the petitioner exclusively.

21] Now, turning back to the legal provisions, as is submitted by the learned senior Advocate Mr. Sapkal, the Collector has not strictly adhered to the time line required to be followed while undertaking the process of removal, as is required by the provisions of Section 55-1(1). The provision reads as under :

"55-1. (1) The requisition for removal of the President directly elected under Section 51A-1A shall be signed by not less than one half of the total number of Councilors and shall contain the charges of misconduct against such President and shall be sent to the Collector :

Provided that, no such requisition shall be sent within a period of two and half years from the date of election of such President.

(2) Upon receipt of the requisition under Sub Section (1), the Collector shall conduct the enquiry of such charges and complete such enquiry within a period of one month from the date of receipt of requisition :

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Provided that, in no case such period of enquiry shall be extended beyond three months and for such extended period, prior assent of the State Government shall be obtained by the Collector, if the enquiry proceeding is delayed due to unavoidable reasons.

(3) The Collector shall submit the findings of the enquiry to the Government for taking appropriate action under Section 55A."

22] The complaint was filed by the Councillors with the Collector on 27.10.2020. The Collector was expected to complete the enquiry within one month. However, he failed to do so. As per the proviso to Sub Section 2 he ought to have obtained prior assent of the State Government, if he was not able to complete the enquiry within one month. Admittedly, no such prior assent was ever obtained. The Government never seems to have condoned the delay. Rather no such request was ever made. It is only by way of an explanation while submitting the report to the State Government the Collector in his communication dated 3.6.2021 (Exh. C) submitted that because of the pandemic he was unable to complete the enquiry in time. It is thus apparent that he took more than six months in forwarding the report to the State Government. Again, though no fault can be found with the Collector in taking assistance of his subordinates in conducting the enquiry, it was imperative for him to have recorded findings by application of mind, whereas his communication is merely a forwarding letter and does not demonstrate application of mind. All these circumstances clearly indicate that there is absolutely no adherence to the statutory provisions as is expected of the Collector and as per the observation in the case of Ravi Bhoir (Supra).

23]             The upshot of the above discussion, the action of the State




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Government in removing and disqualifying the petitioner is grossly erroneous and is liable to be quashed and set aside.

24] The Writ Petition is allowed. The impugned order is quashed and set aside. The Rule is made absolute.

[MANGESH S. PATIL, J.]

umg/

25] After pronouncement of judgment, the learned advocate Mr.Patil

submits that operation of the judgment and order may be stayed for a period

of four weeks to enable the respondents to challenge the order.

26] The learned advocate Mr.L.C.Patil for the petitioner objects. Admittedly

the election process to fill the vacancy is underway. A specific order is passed

directing that the result of such election would be subject to the outcome of

the Writ Petition. Therefore, operation of the judgment and order shall stand

stayed for a period of four weeks.

[MANGESH S. PATIL,J.]