Karnataka High Court
Smt. Usha Mahesh Dasar vs State Of Karnataka on 24 February, 2025
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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WP No. 101414 of 2025
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 24TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 101414 OF 2025 (LB-RES)
BETWEEN:
1. SMT. USHA MAHESH DASAR,
W/O. MAHESH DASAR,
AGED ABOUT 27 YEARS, OCC:
R/A SIDDARAMESHWAR NAGAR,
NEAR HUGAR PLOT, GADAG-582101.
2. SRI. ANIL M. ABBIGERE,
S/O. MALLAPPA,
AGED ABOUT 49 YEARS, OCC:
R/A. 1728/5, OLD SARAF BAZAAR,
GADAG-562101.
3. SRI. GULAPPA S. MUSHIGERI,
S/O. HANAMANTHAPPA MUSHIGIRI,
AGED ABOUT 45 YEARS, OCC:
R/A. NO.250/9, VIVEKANANDA NAGAR,
NEAR HANUMAN TEMPLE, BETAGERI, GADAG-582101.
Digitally signed
by ASHPAK ...PETITIONERS
KASHIMSA
MALAGALADINNI (BY SRI. SANDEEP PATIL, SRI. MRUTYUNJAY S. HALLIKERI,
Location: HIGH SRI. SWAMINI G.M. AND SRI. B.R. SRIVATSA, ADVOCATES)
COURT OF
KARNATAKA
DHARWAD AND:
BENCH
1. STATE OF KARNATAKA,
URBAN DEVELOPMENT DEPARTMENT,
M.S. BUILDING, BENGALURU-560001,
REPRESENTED BY ITS PRINCIPAL SECRETARY.
2. THE DEPUTY COMMISSIONER,
GADAG DISTRICT,
DISTRICT ADMINISTRATION BUILDING,
GADAG-582101.
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WP No. 101414 of 2025
3. THE REGIONAL COMMISSIONER,
BELAGAVI DIVISION, BELAGAVI-590002.
4. THE COMMISSIONER,
CITY MUNICIPAL COUNCIL GADAG-BETAGERI,
STATION ROAD, GANDHI CIRCLE,
GADAG-582102.
...RESPONDENTS
(BY SRI. SHASHI KIRAN SHETTY AG,
SRI. GANGADHAR J.M., AAG ALONG WITH
SRI. V.S. KALASURMATH, AGA FOR R1-R3;
SRI. HARSHA DESAI, ADVOCATE FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
CERTIORARI QUASHING THE IMPUGNED ORDER DATED 13.02.2025
BEARING NO. PRA AA BE:K.M.C/52/2024-25/E.NO.250815 PASSED
BY THE 3RD RESPONDENT-REGIONAL COMMISSIONER (PRODUCED
AS ANNEXURE-A) AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ)
1. Learned AGA accepts notice for respondents No.1 to
3.
2. The petitioners are before this Court seeking for the
following reliefs:
i. Issue a Writ of Certiorari quashing the
impugned Order dated 13.02.2025 bearing no.
PRA AA BE:K.M.C/52/2024-25/E.NO.250815
passed by the 3rd Respondent-Regional
Commissioner (produced as Annexure-A); and
/or,
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ii. Issue such other Writ, Orders or directions as
deemed fit in the circumstances of the case, in
the interest of justice and equity.
3. A notice having been issued under Subsection (1) of
Section 41 of the Karnataka Municipalities Act, 1964
('the Act of 1964', for short) to the petitioners, who
are the Councillors of the Gadag-Betageri City
Municipal Council, came to be served on 06.02.2025.
The petitioners appeared before the Regional
Commissioner, to whom the powers have
been delegated on 13.02.2025 at 11.00 a.m. and
sought for three weeks' time to submit their
explanations and documents. Without considering
the same, the Regional Commissioner,
on 13.02.2025, passed an order disqualifying the
petitioners. It is aggrieved by the same the
petitioners are before this Court seeking for the
aforesaid reliefs.
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4. Sri.Sandeep Patil learned counsel for the Petitioners
submits that:
4.1. The proviso to Subsection(1) of Section 41 of
the Act of 1964 has been violated, the
petitioners have not been given adequate
opportunity to respond to the allegations made
in the notice.
4.2. In terms of Subsection (1) of Section 41 of the
Act of 1964, the recommendation in the
present matter has been made by the
Municipal Commissioner to the Deputy
Commissioner, who thereafter forwarded it to
the Regional Commissioner for necessary
action. The submission in this regard is that,
the recommendation has to be made by the
Municipal Council and not by any officer.
4.3. Lastly, he submits that, in a hurry the election
is proposed to be held on 28.02.2025 after
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having disqualified the petitioners and as such,
he submits that the entire action on the part
of the government is malafide which is
required t be dealt with by this Hon'ble Court,
in terms of the decision of the Hon'ble Apex
Court in the case of Ravi Yashwant Bhoir
Vs. District Collector, Raigad and Others1,
more particularly para 31 and 34 thereof,
which are reproduced hereunder for easy
reference:
31. Undoubtedly, any elected official in
local self-government has to be put on a
higher pedestal as against a government
servant. If a temporary government
employee cannot be removed on the
ground of misconduct without holding a
full-fledged inquiry, it is difficult to
imagine how an elected office-bearer can
be removed without holding a full-fledged
inquiry.
34. In a democratic institution, like ours,
the incumbent is entitled to hold the
office for the term for which he has been
elected unless his election is set aside by
a prescribed procedure known to law or
he is removed by the procedure
established under law. The proceedings
for removal must satisfy the requirement
(2012) 4 SCC 407
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of natural justice and the decision must
show that the authority has applied its
mind to the allegations made and the
explanation furnished by the elected
office-bearer sought to be removed.
5. The learned Advocate General appearing for
Respondents No.1, 2, and 3 submits that;
5.1. Firstly, an administrator has been appointed to
the Municipal Council vide order dated
29.07.2024 under Section 315 of the Act of
1964 and as such, the administrator would
substitute the Council, and the
recommendation made by the administrator to
the Regional Commissioner is a
recommendation made by the Council. The
said order of appointment of the administrator
made wayback on 29.07.2024 not having been
challenged and the administrator discharging
his duties as such, no fault can be found with
the recommendation made by the
administrator to the Regional Commissioner
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for initiation of proceedings under Section 41
of the Act of 1964.
5.2. Insofar as the violation of the first proviso to
Subsection (1) of Section 41 of the Act of
1964, his submission is that, this proviso only
provides for an opportunity to be afforded
submitting an explanation and not for hearing.
In the notice issued by the Regional
Commissioner, seven days' time had been
provided to the petitioners to reply and submit
their explanation. If at all their explanation
had been submitted, the Regional
Commissioner would have considered it.
Instead of doing so, the petitioners sought
for three weeks' time without indicating what
documents the petitioners wanted to submit.
5.3. The Regional Commissioner being of the
opinion that all the necessary documents were
already available on record, more so on
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account of a First Information Report
(FIR) having been filed as regards the
allegations made against the petitioners, an
investigation having been completed, and
a charge sheet having been laid, the
allegations being that the petitioners had dealt
with the properties of the Municipal Council to
the detriment of the Municipal Council and
contrary to the judgments passed by the Civil
Court, directing eviction of 54 tenants,
confirmed by the First Appellate Court and the
Hon'ble Apex Court, the claim made by 54
persons before the Coordinate Bench of
the this Court in Writ Petition
No.112012/2019 and connected matters,
having already been rejected, those 54
persons having been directed to handover
vacant possession of the property belonging
to the Council, the petitioners have
fabricated a resolution of the Council
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with forged signatures of the Municipal
Commissioner, as if the council had agreed for
extension of lease period for a further 5 years.
5.4. These documents being on record, the
Regional Commissioner has gone ahead with
passing the order, being of the opinion that it
was only an attempt made by the petitioners
for protracting the proceedings and nothing
else.
5.5. As such, he submits that the order passed by
the Regional Commissioner is perfectly valid
and no fault can be found with it.
6. Sri.Harsh Desai, learned Counsel appearing for
the respondent No.4 - Municipal Council, represented
by the Commissioner, reiterates the arguments of
the learned Advocate General and would further
submit that:
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6.1. Even in the letters seeking an extension of
time, the petitioners have not indicated what
documents they wish to produce. Except
to state that the applications have been made,
no explanation has been provided in the said
letters seeking for adjournment as also during
this writ petition, the petitioners having been
granted time to file a detailed representation,
as done in the present petition, they failed to
submit their explanation within the timeframe
fixed by the Regional Commissioner.
6.2. The properties of the Council have been dealt
with fraudulently by the petitioners. As such,
he submits that the order passed by the
Regional Commissioner, taking into
consideration the gravity of the issue, is
proper and correct.
7. In reply, Sri. Sandeep Patil, learned Counsel for the
petitioners, would submit that,
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7.1. The petitioners did not have sufficient time to
submit their explanation which they were
willing to do, but for the applications filed by
them with the Municipal Council, for furnishing
certain documents, not having been
deliberately considered and documents not
furnished, they are unable to do so.
7.2. If the documents are furnished expeditiously
by today or tomorrow, his submission is that
the explanation can be submitted to the
Regional Commissioner by 3.00 p.m. on
27.02.2025.
8. On enquiry as to whether any other application has
been made to any other authorities requiring the
documents to be supplied by them, he categorically
submitted that the only application filed is as regards
the application made to respondent No.4, the
Municipality.
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9. Sri.Harsha Desai, learned Counsel appearing
for respondent No. 4, initially submitted that no such
application has been received. If at all a copy of the
application were to be furnished by the petitioners to
him, he would communicate it to respondent
No.4 and make available the documents which are
available on record. He further submitted that, if the
petitioners were to seek for a copy of the forged
resolution, respondent No.4 would be unable to
furnish the same, since that document is not
available on the file of respondent No.4.
10. Heard Sri.Sandeep Patil, learned Counsel appearing
for the petitioners, Sri.Shashi Kiran Shetty, learned
Advocate General for respondents No.1 to 3 and
Sri.Harsh Desai, learned counsel for respondent
No.4. Perused the papers.
11. The submission insofar as the recommendation of the
Municipal Council is concerned, the submission would
enure to the benefit of the petitioners only if the
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administrator had not been appointed on 29.07.2024
in terms of Subsection (2) of Section 315 of the
Karnataka Municipalities Act, 1964.
12. Subsection (2) of Section 315 of the Karnataka
Municipalities Act, 1964 is reproduced hereunder for
easy reference:
315. Power to appoint administrator in
certain cases.
(1) XXX
(2)Notwithstanding anything contained in this
Act, on the appointment of an administrator
under sub-section (1), during the period of
such appointment, the said municipal council
and committees thereof and the President and
Vice-president charged with carrying out the
provisions of this Act, or any other law, shall
cease to exercise any powers and perform and
discharge any duties or functions conferred or
imposed on them by or under this Act or any
other law and all such powers shall be
exercised and all such duties and functions
shall be performed and discharged by the
administrator.
13. A perusal of the above Subsection (2) of Section 315
indicates that, if an administrator were to be
appointed, during the period of such appointment,
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the Municipal Council and the committees thereof
and the President and Vice-president charged with
carryout out the provisions of this Act, or any other
law, shall cease to exercise any powers and perform
and discharge any duties or functions conferred on
them under the Act or any other law and all such
duties and functions shall be performed and
discharged by the administrator.
14. It is therefore clear that in view of Subsection (2) of
Section 315 of the Act of 1964, the administrator on
being appointed, replaces the Municipal Council and
as such, the recommendation referred of the
Municipal Council referred to under Subsection (1) of
Section 41 of the Act of 1964 would also be
considered a recommendation of the administrator.
15. At this stage Sri.Sandeep Patil, learned Counsel for
the petitioners, submits that a recommendation was
made not by the administrator but by the Municipal
Commissioner to the administrator, who has in turn
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forwarded it to the Regional Commissioner.
Therefore, the recommendation did
not originate from the administrator, he argues that
the same is invalid.
16. This argument would also not enure to the benefit of
the petitioners inasmuch as the Municipal
Commissioner has brought to the notice of the
administrator about the actions of the petitioners and
has recommended to the administrator to take action
on the same. It was for the administrator to have
either accepted or rejected the recommendation or
report of the Municipal Commissioner. In the present
case, the administrator has chosen to accept the
recommendation made by the Municipal
Commissioner and forwarded it to the Regional
Commissioner.
17. Thus, merely because the recommendation
originated from the office of the Municipal
Commissioner would not make the recommendation
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to be that of the Municipal commissioner under
Subsection (1) of Section 41 of the Act of 1964, it is
the Deputy Commissioner - Administrator who had
recommended to the Regional Commissioner for
disqualification of the petitioners, it is the
recommendation of the administrator, which has
been taken into consideration by the Regional
Commissioner, I am of the considered opinion that
this recommendation of the administrator, being that
of the Municipal Council in terms of Subsection (2) of
Section 315 of the Act of 1964, would satisfy the
requirement of Subsection (1) of Section 41 of the
Act of 1964, and no grievance could be made by the
petitioners in relation thereto.
18. Insofar as the contention that adequate opportunity
had not been provided to the petitioners and that an
enquiry has not been held by the Regional
Commissioner, in terms of the decision of the Hon'ble
Apex Court in Ravi Yashwant's case (supra), that
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decision was rendered in the context of Sections 55A
and 55B of the Maharashtra Municipal Councils,
Nagar Panchayats and Industrial Townships Act,
1965. The said provision had been extracted in para
49 of the aforesaid judgment of the Hon'ble Apex
Court, which is extracted hereunder for easy
reference:
49. Section 55 of the Act 1965 provides for
removal of the President of the Council by No
Confidence Motion. Sections 55A and 55B
provide a mode of removal of duly elected
President on proved misconduct or negligence
etc., which read as under:
Section 55A.- Removal of President and
Vice-President by Government:- Without
prejudice to the provisions of Section 55-1A
and 55, a President or a Vice-President may be
removed from office by the State Government
for misconduct in the discharge of his duties, or
for neglect of or incapacity to perform, his
duties or for being guilty of any disgraceful
conduct, and the President or Vice-President so
removed shall not be eligible for re-election or
re-appointment as President or Vice-President
as the case may be, during the remainder of
the term of office of the Councillors:
Provided that, no such President or Vice-
President shall be removed from office, unless
he has been given a reasonable opportunity to
furnish an explanation.
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55B.- Disqualification for continuing as
Councillor or becoming Councillor on
removal as President or Vice- President :-
Notwithstanding anything contained in Section
55A, if a Councillor or a person is found to be
guilty of misconduct in the discharge of his
official duties or being guilty of any disgraceful
conduct while holding or while he was holding
the office of the President or Vice-President, as
the case may be, the State Government may,-
(a) disqualify such Councillor to continue
as a Councillor for the remainder of his
term of office as a Councillor and also
for being elected as a Councillor, till the
period of six years has elapsed from the
order of such disqualification;
(b) Disqualify such person for being
elected as a Councillor till the period of
six years has elapsed from the order of
such disqualification.
19. In the said case, charges were laid as against the
councillors and notice was issued by the Government
in terms of Section 54A. In the present case, there
is separate criminal proceedings which had been
initiated, where the charge sheet has been laid after
investigation on 31.01.2024, a criminal petition for
quashing under Section 528 of the Code of Criminal
Procedure in Criminal Petition Nos.102611/2024 and
102711/2024, came to be dismissed by this Court
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vide order dated 19.12.2024. A Special Leave
Petition (SLP) filed in SLP No.1616/2025, came to be
dismissed on 06.02.2025.
20. In the above background, what would have to be
looked into is the requirement under Section 41 of
the Act of 1964, which is reproduced hereunder:
41. Liability to removal from office.
(1)The Government, if it thinks fit on the
recommendation of the municipal council, may
remove any councillor elected and after such
enquiry as it deems necessary, if such
councillor has been guilty of misconduct in the
discharge of his duties, or of any disgraceful
conduct, or has become incapable of
performing his duties as a councillor
Provided that no Councillor shall be removed
except after being afforded an opportunity for
submitting an explanation.
(2)When under sub-section (10) of section 42
any person is removed from the office of
president or vice-president for misconduct in
the discharge of his duties, he shall, from the
date of such removal cease to be a councillor
and shall be deemed to have been removed
from the office of councillor under sub-section
(1).
21. The proviso to Subsection (1) of Section 41 of the
Act of 1964 requires the Councillor to be afforded an
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opportunity to submit an explanation. In the present
case, although the notice was dated 31.01.2025, the
same had admittedly been served on the petitioners
only on 06.02.2025. Of course the submission of
learned Advocate General in this regard is that the
delay in service is on account of the petitioners not
accepting the service of notice. Be that as it may, the
fact remains that service was effected on
06.02.2025, and the petitioners appeared before the
Regional Commissioner on 13.02.2025, and sought
for time to submit an explanation.
22. Instead of granting any time, the Regional
Commissioner passed the order on the very same
day, i.e., on 13.02.2025, which in my considered
opinion, is a complete violation of the proviso to
Subsection (1) of Section 41 of the Act of 1964 and
the principles of natural justice, inasmuch as the
right of the petitioners to submit an explanation, has
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been negated by the Regional Commissioner, not
granting suitable time.
23. The submission now made by Sri.Sandeep Patil,
learned counsel for the petitioners, is that, if the
documents which have been applied to respondent
No.4 are furnished, the reply would be furnished by
3:00 p.m. on 27.02.2025.
24. That being so, I am of the considered opinion that
such valuable right of the petitioners cannot be
deprived when petitioners have come forward now to
submit their reply within the date and time frame as
stipulated by them.
25. In view of the submissions made by Sri.Harsh Desai
that no application has been furnished, the
petitioners' counsel is reserved liberty to furnish a
copy of the application to the counsel for Respondent
No. 4 by the end of today.
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26. At this stage, Sri.Sandeep Patil, learned counsel for
the petitioners, submit that only one document is
sought for being a copy of the disputed resolution
dated 09.02.2024. If that be so, Respondent No.4 is
directed furnish certified copy of the minute book for
meetings held immediately before and after
09.02.2024, as also that of 09.02.2024 if so available
as also afford an opportunity to inspect the original
minute book, by 1700 hours today.
27. As stated above, the explanation to be personally
submitted by the petitioners as per the submission of
learned counsel for the petitioners, by 1500 hrs on
27.02.2025 and thereafter orders to be passed by
the respondent No.2 Regional Commissioner after
considering the explanation offered.
28. In view of the above, I pass the following:
ORDER
i. The petition is partly allowed.
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ii. Certiorari is issued, order dated 13.02.2025
bearing No.PRA AA BE:K.M.C/52/2024-
25/E.NO:250815 passed by respondent
No.3 - Regional Commissioner at
Annexure-A, is quashed.
iii. Direction is issued to respondent No.4 to
provide certified copies of original minute
book as indicated above by 1700 hours
today.
iv. Liberty is reserved to the petitioners to
submit a reply by 1500 hours on
27.02.2025. It is made clear that, if the
reply is not submitted by that time, then
the petitioners shall forfeit the indulgence
extended by this Court by this order.
Sd/-
(SURAJ GOVINDARAJ)
JUDGE
gab
CT-MCK
