Manipur High Court
The State Manipur vs Thongam Shyamo Singh on 16 September, 2021
KABORAM Digitally signed by KABORAMBAM
SAPANA CHANU
DN: c=IN, o=High court of manipur,
BAM
ou=HIGH COURT OF MANIPUR,
pseudonym=fac69f56cfb99637988
d4ed4d28335819d52f60cbfb17e1e
086c00bb91513a07,
SAPANA postalCode=795002, st=MANIPUR,
serialNumber=0328258e1d925a01c
24115d784d05b91f8b833880e581a
CHANU
92f723fa8ae8ec1012,
cn=KABORAMBAM SAPANA CHANU
Date: 2021.09.16 15:33:04 +05'30'
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
W.A. No. 46 of 2020
Ref: W.P. (C) No. 1049 of 2018
1. The State Manipur, represented by the Commissioner/Secretary,
MAHUD, Old Secretariat- South Block, Government of Manipur,
P.O. & P.S Imphal and Imphal West District, Manipur, Pin-
795001.
2. The Under Secretary, MAHUD, Old Secretariat - South Block,
Government of Manipur, P.O. & P.S. Imphal and Imphal West
District, Manipur, Pin-795001.
... Appellants.
-Versus -
1. Thongam Shyamo Singh, aged about 55 years, S/o (Late) Th.
Tombi Singh, resident of ThoubalAthokpam Leikai, Thoubal, P.O.
& P.S. Thoubal, Manipur, Pin - 795138.
2. The Thoubal Municipal Council represented by its Executive
Officer, P.O. & P.S. Thoubal, Thoubal District, Manipur-795138.
3. WaikhomIbochouba Singh, aged about 50 years, S/o. (L) W.
Gouramani Singh, Councillor, Ward No. 9 of Thoubal Municipal
Council, a resident of ThoubalPakhangkhongLeirak, P.O. & P.S.
Thoubal, Thoubal District, Manipur-795138.
4. Thingujam Ongbi Sangita Devi, aged about 33 years, W/o Th.
Arun Singh, Councillor, Ward No. 14 of Thoubal Municipal
Council, a resident of ThoubalKiyam, P.O. & P.S. Thoubal,
Thoubal District, Manipur-795138.
5. Saphura, aged about 27 years, W/o Md. KhambaCouncillor,
Ward No. 17 of Thoubal Municipal Council, a resident of
Phoudem Manning Leikai, P.O. & P.S. Thoubal, Thoubal District,
Manipur-795138.
6. AkoijamChandrajini Devi, aged about 44 years, W/o. W. Dina
Singh, Councillor, Ward No. 4 of Thoubal Municipal Council, a
resident of Thoubal Awang Leikai, P.O. & P.S. Thoubal, Thoubal
District, Maniipur-795138.
W.A. No. 46 of 2020
Ref: W.P. (C) No. 1049 of 2018 Page 1
7. Waikhom Ongbi Sanathoi Devi, aged about 50 years, W/o W.
Amujao Singh, Councillor, Ward No. 8 of Thoubal Municipal
Council, a resident of ThoubalPakhangkhongLeirak, P.O. & P.S.
Thoubal, Thoubal District, Manipur-795138.
8. Ningthoujam Shanti Devi, aged about 55 years, W/o N.
Dhananjoy Singh, Councillor, Ward No. 15 of Thoubal Municipal
Council, a resident of KiyamSiphaiHeibongLeirak, P.O. & P.S.
Thoubal, Thoubal District, Manipur-795138.
9. PuyamJiteswar Singh, aged about 39 years, S/o (Late) P. Shamu
Singh, Councillor, Ward No. 3 of Thoubal Municipal Council, a
resident of ThoubalKshetri Leikai, P.O. & P.S. Thoubal, Thoubal
District, Manipur-795138.
10. N. Ravi Singh, aged about 39 years, S/o M. Gokul Singh,
Councillor, Ward No. 18 of Thoubal Municipal Council, a resident
of ThoubalKhunou, P.O. & P.S. Thoubal, Thoubal District,
Manipur-795138.
.....Respondents
B E F O R E
HON'BLE MR. JUSTICE MV MURALIDARAN
HON'BLE MR. JUSTICE AHANTHEM BIMOL SINGH
For the Appellant : Mr. M. Rarry, Ld. Addl. AG
For the respondent : Mr. Th. Mahira, Advocate for
respondent No.1;
Mr. G.A. Romendro Sharma,
Advocate for respondent No. 3, 5 6 &
Date of Hearing : 02.12.2020.
Date of Order : 16.09.2021.
JUDGMET &ORDER
(CAV)
(A. Bimol Singh, J)
[1] Heard Mr. M. Rarry, Ld. Addl. AG appearing for the appellant, Mr. Th.
Mahira, Ld. Counsel appearing for Respondent No. 1 and Mr. G.A. Romendro
Sharma, Ld. Counsel appearing for the Respondents No. 3, 5, 6 & 9.
W.A. No. 46 of 2020
Ref: W.P. (C) No. 1049 of 2018 Page 2
[2] This appeal is preferred against the judgment and order dated
26.11.2019 passed by the Ld. Single Judge in W.P. (C) No. 1049 of 2018.
The only issue to be considered in the present writ appeal is the validity and
legality of the impugned order dated 12.11.2018 passed by the Secretary
(MAHUD), Government of Manipur, for disqualifying the writ
petitioner/Respondent No. 1 herein from being a Councilor of Ward No. 5 of
Thoubal Municipal Council.
[3] The relevant facts of the present case in a nutshell is that the
Respondent No. 1 was elected as Councilor of Ward No. 5 of Thoubal
Municipal Council and thereafter he was elected as the Chairperson of the
Thoubal Municipal Council - vide notification dated 09.02.2016.
[4] While the Respondent No. 1 was functioning as the Chairperson of the
Thoubal Municipal Council (herein referred to as the Council for short) a
requisition dated 16.11.2017 was submitted by 7 (seven) Councilors of the
council to the Executive Officer of the council requesting for convening a
special meeting to consider the charges of misconduct alleged against the
Respondent No. 1 and to move the Government for removal of the
Respondent No. 1 from being a member of the council under Section 29 of
the Manipur Municipalities Act 1994 on the charges of misconduct alleged
against the Respondent No. 1 in the said requisition and for disqualifying the
Respondent No. 1 under Section 59 of the Manipur Municipalities Act 1994
(herein referred to as the Act for short) on the basis of allegations for his
involvement in contract works of the council without Government approval.
W.A. No. 46 of 2020
Ref: W.P. (C) No. 1049 of 2018 Page 3
The said requisition was forwarded to the Commissioner (MAHUD),
Government of Manipur by the Executive Officer of the Council under a letter
dated 01.12.2017.
[5] On receipt of the said requisition, the Under Secretary (MAHUD) wrote
a letter dated 27.12.2017 to the Executive Officer of the Council requesting to
submit a detail report with supporting documents on the claim and allegations
to the Government for a thorough examination.
[6] In response to the aforesaid letter of the Government, the Executive
Officer of the council submitted a detailed parawise report with supporting
documents in connection with the charges and allegations made against the
Respondent No. 1 under his letter dated 08.01.2018 stating that the charges
and allegations made against the Respondent No. 1 were without any basis.
[7] During this period, another Councilor of Thoubal Municipal Council
filed a writ petition registered as W.P (C) No. 181 of 2017 in this High Court,
praying for issuing appropriate directions to the Deputy Commissioner,
Thoubal, to exercise his power under Section 202 of the Act and also to
dispose of the representation dated 20.02.2017 submitted by the aforesaid
councilor. The said writ petition was disposed of by this Court by an order
dated 18.07.2017 directing the Deputy Commissioner, Thoubal to consider
and dispose of the said representation dated 20.02.2017 within a period of 2
(two) weeks from the date of passing of the order by this Court and to issue
an appropriate order in respect thereof, - vide order dated 18.07.2017 passed
by this Court in W.P. (C) No. 181 of 2017.
W.A. No. 46 of 2020
Ref: W.P. (C) No. 1049 of 2018 Page 4
[8] In purported compliance of the order of this Court dated 18.07.2017
passed in W.P. (C) No. 181 of 2017, a five members District Level Enquiry
Committee headed by the Deputy Commissioner, Thoubal was constituted to
enquire into the allegations made against the Respondent No. 1. The said
enquiry committee enquired into the following 3 (three) allegations made
against the Respondent No. 1:-
(i) the direct/indirect involvement of Shri Thongam Shyamo Singh
in the contract work of entry toll tax pursuant to tender notice
No. 55/TBL/TVL/MUC/ETT/20-15 dated 3rd May, 2016;
(ii) the direct/indirect involvement of Shri Thongam Shyamo Singh
in the contract purchase of Bolero;
(iii) the non-payment of honorarium for 20 days of February, 2016.
[9] The fivemember District Level Committee, after due
consideration/examination of the enquiry report submitted by the Executive
Officer of the council and all connected documents/papers, were satisfied with
the enquiry report submitted by the said Executive Officer and recommended
to dispose of the aforesaid representation dated 20.02.2017 in the light of the
said enquiry report.
[10] Pursuant to the recommendation made by the said District Level
Enquiry Committee and the enquiry report submitted by the Executive Officer
of the council, the Deputy Commissioner, Thoubal issued an order dated
13.12.2017 disposing of the aforesaid representation dated 20.02.2017 as
baseless and devoid of merit.
W.A. No. 46 of 2020
Ref: W.P. (C) No. 1049 of 2018 Page 5
[11] Subsequently, 9 (nine) councilors including the 7 (seven) councilors,
who earlier submitted the requisition letter dated 16.11.2017, submitted
another representation to the Commissioner (MAHUD), Government of
Manipur reiterating the earlier allegations made by them against the
Respondent No.1 and stating that the requisition for disqualification of the
Respondent No.1 from the Thoubal Municipal Council submitted to the
Executive Officer of the Council was on valid legal grounds.
[12] On the basis of the allegations made in the requisition letter dated
16.11.2017 and the representation dated 02.01.2018 submitted by the
councilors of the Thoubal Municipal Council and by ignoring the earlier report
of the Executive Officer of the Council and the District Level Enquiry
Committee, the Secretary (MAHUD), Government of Manipur, issued an order
dated 31.01.2018 disqualifying the Respondent No.1 from being a
member/councilor of the Thoubal Municipal Council in exercise of the power
conferred under Section 58 and 59 of the Act.
[13] Having been aggrieved, the Respondent No.1 filed a writ petition being
W.P. (C) No. 90 of 2018 in this Court assailing the order of his disqualification
dated 31.01.2018 and in the said writ petition, this Court was pleased to pass
an interim order on 02.02.2018 suspending the said order of disqualification
dated 31.01.2018. Consequently, the Secretary (MAHUD), Government of
Manipur, issued an order dated 13.12.2018 cancelling the order of
disqualification dated 31.01.2018.
W.A. No. 46 of 2020
Ref: W.P. (C) No. 1049 of 2018 Page 6
[14] After cancellation of the earlier disqualification order, the Secretary
(MAHUD), Government of Manipur, wrote a letter dated 13.04.2018 to the
Deputy Commissioner, Thoubal, requesting to conduct an enquiry under
Section 202 of the Act in connectionwith the allegation made against the
Respondent No.1 and to submit a report on or before 25.04.2018.
[15] Pursuant to the direction of the Government, the Deputy
Commissioner, Thoubal, formed a 4 (four) member District Level Enquiry
Committee headed by the Deputy Commissioner, Thoubal, and the said
Enquiry Committee made a detail enquiry to the allegations made against the
respondent No. 1 and submitted a report dated 07.07.2018 wherein, no
adverse findings were made against the respondent No. 1. Thereafter, the
said Enquiry Report submitted by the District Level Enquiry Committee dated
07.07.2018 was submitted to the Secretary (MAHUD) by the Addl. Deputy
Commissioner, Thoubal under a letter dated 09.07.2018.
[16] On receiving of the said Enquiry Report dated 07.07.2018, the Under
Secretary (MAHUD), Government of Manipur, wrote a letter dated 03.08.2018
to the Executive Officer of the council, enclosing therein a copy of the said
Enquiry report and requesting to place the same before a special meeting
called specifically for the purpose of removing the respondent No. 1 from the
council. Consequently, a notice dated 07.08.2018 was issued by the Executive
Officer of the council fixing the date for holding a special meeting on
17.08.2018 which was challenged by the respondent No. 1 by filing W.P. (C)
W.A. No. 46 of 2020
Ref: W.P. (C) No. 1049 of 2018 Page 7
No. 740 of 2018 in this court. In the said writ petition, this Court passed an
order dated 16.08.2018, directing that the special meeting may be held but
the result thereof should not be given effect to without leave of the Court.
The said special meeting was held on 21.08.2018 and thereafter, the
Executive Officer informed the Government about it on 30.08.2018.
Subsequently, the Under Secretary (MAHUD), Government of
Manipur,wrote a letter dated 27.10.2018, informing the Executive Officer of
the council that the earlier Government letter dated 03.08.2018 for convening
the special meeting had been withdrawn and thereafter, requesting the
Executive Officer to take necessary action for cancelling the meeting notice
dated 07.08.2018.
[17] After ordering for cancellation of the special meeting held for
removing the respondent No. 1 from the council, the Under Secretary
(MAHUD), Government of Manipur, wrote a letter dated 29.10.2018 to the
respondent No. 1 enclosing therein, the Enquiry Report dated 07.07.2018 of
the District Level Enquiry Committee and directing the respondent No. 1 to
show cause as to why action should not be taken against him under the
provisions of section 29 of the Act. In response to the said letter, the
respondent No. 1 submitted his reply dated 05.11.2018 and after considering
it, the link Secretary (MAHUD), in exercise of the power conferred Under
Section 29 (2) (d) read with section 58 and 59 of the Act issued an order
dated 12.11.2018, disqualifying the respondent No. 1 from being a
W.A. No. 46 of 2020
Ref: W.P. (C) No. 1049 of 2018 Page 8
councilorwith immediate effect. Having been aggrieved, the respondent No. 1
filed the connected writ petition challenging the said disqualification order
date 12.11.2018.
[18] After considering the rival submissions of the parties, the learned
Single Judge passed a very reasoned Judgment and order and allowed the
writ petition by quashing and setting aside the impugned order dated
12.11.2018. The relevant portions of the said Judgment and order are
reproduced here under:-
"[11] It may be noted that the petitioner was disqualified by the
State Government in exercise of power conferred upon it under
Section 29 (2) (d) read with Section 58 and 59 of the Act, 1994. The
grounds on which the order is disqualification was issued, are the
ones mentioned therein. If the order is examined minutely and in
particular, paragraph 8 thereof, it is seen that they are all allegations
relating to misconducts against the petitioner. In other words, the
order of disqualification was based on the report of the Committee
dated 07.07.2018 submitted by the office of the Deputy
Commissioner on 09.07.2018. In order to attract the provisions of
Section 29 (2) (d),it becomes necessary for the State Government to
establish that the Councillor has a share or interest in any contract,
lease, sale or purchase of land or any agreement of the same or any
kind whatsoever to which the Council is a party or shall hold any
office of profit under it. On perusal of the report of the Committee
dated 07.07.2018 submitted by the office of the Deputy
Commissioner as mentioned above, it is further seen that there is no
any finding that the petitioner has a share or interest in any contract,
lease, sale or purchase of land or any agreement of the same or any
W.A. No. 46 of 2020
Ref: W.P. (C) No. 1049 of 2018 Page 9
kind whatsoever to which the Council is a party or shall hold any
office of profit under it. In other words, the findings arrived at by the
Committee in its report, are only in relation to misconducts which
have nothing to do withthe action to be taken by the State
Government under Section 29 (2). The establishment of misconduct
is one of the conditions required to be fulfilled for purpose of removal
of a Councillor under Section 29 (1) but not under Section 29 (2) (d).
The expression "indicating direct or indirect involvement and
vested interest in the award of work to the concerned
bidder"as stated in the impugned order dated 12.11.2018 at
paragraph 8 (e) is not there at all in the report of the Committee
submitted by the office of the Deputy Commissioner. The same
expression is found in the order dated 31.01.2018 issued by the
Secretary (MAHUD), Government of Manipur which was withdrawn
vide its order dated 13.02.2018 after the same being suspended by
this Court. In other words, there is no any specific finding that the
petitioner has a share or interest in the award of contract for
collection of toll tax. The only thing that can be noted by this Court, is
that pursuant to the resolution of the council, the petitioner issued an
order dated 09.06.2017 extending the period of contract for a year.
The contention of the learned counsel appearing for the respondents
may be true to some extent that the petitioner should not have
issued the said order, as it is the domain of the Executive Officer but
that itself could not be a ground for removal. The Councillor being an
elected person, cannot be removed by the State Government on the
basis of presumption and in other words, in the absence of materials
to prove that he has a share or interest in the contract, lease, sale
etc. the provisions of Section 29 (2) (d) ought not to have been
invoked by the State Government. In fact, the Committee did not
examine the issue whether the petitioner had any share or interest in
the award of contract for collection of toll tax, although such an issue
W.A. No. 46 of 2020
Ref: W.P. (C) No. 1049 of 2018 Page 10
was considered by the earlier and similar Committee, in its meeting
held on 13.12.2017, which found it to be baseless and devoid of
merit. Considering the submissions made by the counsel appearing
for the parties, this Court is of the opinion that the submission of the
counsel appearing for the petitioner has merit and substance and
therefore, the impugned order is bad in law. The only thing that can
be done by the State Government in the facts and circumstances of
the present case, is to proceed with the provisions of Section 58
which reads as under:
"58.Liability for loss, waste or misapplication of funds and
property - Every Chairperson, Vice-Chairperson, Councillor,
officer or employees of a Nagar Panchayat or of a Council
including a Government servant whose services are lent to the
Nagar Panchayat or to the Council, shall be liable for the loss,
waste or misapplication of any money or other property owned
by or vested in the Nagar Panchayat or the Council, if such loss,
waste or misapplicationis a direct consequence of any illegal act,
omission, neglect or misconduct on his part; and a suit for
compensation may be instituted against him in any Court of
competent jurisdiction by the Nagar Panchayat or by the Council,
as the case may be."
If the State Government is of the prima facie view, on the basis
of the materials available with it, that if loss, waste or the
misappropriation is a consequence of any illegal act, omission,
neglect or misconduct on the part of the petitioner, it is open to it to
proceed in accordance with the provisions of this Act, in the sense
that the Council may be directed to institute a suit for compensation
against him in any Court of competent jurisdiction."
"[12.1] In view of the above and for the reasons stated
hereinabove, the instant writ petition is allowed and consequently,
the order dated 12.11.2018 issued by the link Secretary (MAHUD),
W.A. No. 46 of 2020
Ref: W.P. (C) No. 1049 of 2018 Page 11
Government of Manipur is quashed and set aside with no order as to
costs."
[19] At the outset, Mr. M. Rarry, learned Addl. AG, Manipur appearing for
the appellant draw the attention of this Court to the provisions of section 29
(2) (d) and section 59 of the Act and submitted that under the said provisions
the State Government is empowered to remove any councilor, if the
councilorhas, within the meaning of section 59 knowingly acquired or
continued to hold without the permission in writing of the State Government,
directly or indirectly or as partner, any share or interest in any contract or
employment with, by or on behalf, of the municipality. Section 29 (2) (d) and
section 59 of the Act reads as under:-
"29.(1) The State Government may remove any elected Councillor
on the ground of his misconduct in the discharge of his duties if the
removal is recommended by a resolution of the municipality passed
at a special meeting called for the purpose and supported by a
majority of the total number of Councillors of the municipality and by
a majority of not less than two-third of Councillors present and voting
in such a meeting.
(2) The State Government may remove any Councillor-
(a) if he ceases to reside within the municipality
continuously for a period of twelve months; or
(b) if he has been declared by the State Government by
notification to have violated his oath or affirmation of
allegiance; or
W.A. No. 46 of 2020
Ref: W.P. (C) No. 1049 of 2018 Page 12
(c) if he becomes disqualified by or under any law for the
time being in force for the purpose of elections to the
Manipur Legislative Assembly; or
(d) if he has, within the meaning of section 59 knowingly
acquired or continued to hold without the permission
in writing of the State Government, directly or
indirectly or as a partner, any share or interest in any
contract or employment with, by or on behalf, of the
municipality; or
(e) if he is in arrears of any kind of dues to the
municipality for more than six months after a bill or a
notice has been duly served on him.
Provided that no Councillor shall be removed
under sub-section (1) or sub-section (2) unless he has
been given an opportunity of being heard.
"59. No Counillor of a Nagar Panchayat or of a Council shall have
without the written permission of the State Government, directly or
indirectly, any share or interest in any contract, lease sale or
purchase of land or any agreement for the same or any kind
whatsoever to which the Nagar Panchayat or Council is a party, or
shall hold any office of profit under it, and if any Councillor shall have
such share or interest or shall hold such office he shall thereby
become disqualified to continue in office as a Councillor:
Provide that a Councillor shall not be so disqualified or liable
by reason -
(a) of having a share or interest in -
(i) a contract entered into between the Nagar
Panchayat or the Council, as the case may be,
and any incorporated or registered company or
any registered Co-operative Society of which
such Councillor is a member or shareholder; or
W.A. No. 46 of 2020
Ref: W.P. (C) No. 1049 of 2018 Page 13
(ii) any agreement for the loan of money, or any
security for the payment of money only; or
(iii) any newspaper in which any advertisement
relating to the affairs of the municipality is
inserted; or
(iv) of his being professionally engaged on behalf
of the Nagar Panchayat or the Council, as the
case may be, as a legal or medical practitioner
and receiving a fee for services rendered in his
professional capacity."
[20] The learned Addl. AG submitted that after due consideration and
examination of the Enquiry Report dated 07.07.2018 of the District Level
Enquiry Committee along with supporting documents furnished by the Deputy
Commissioner, Thoubal and Executive Officer of the council, the State
Government was pleased to order the disqualification of the respondent No. 1
as councilor of the Thoubal Municipal Councilin exercise of the power
conferred under section 29 (2) (d) read with section 58 and 59 of the Act. It
has also been submitted that the findings in the said Enquiry Report dated
07.07.2018 were sufficient enough to come to the conclusion that the
petitioner has a share or interest in the award of contract work given in
favour of Shri Sushilkumar Singh for collection of Toll tax and also about the
misconduct of the respondent No. 1 as Chairperson of the council and that it
is not for the High court, in exercise of its power under article 226 of the
constitution of India, to sit as an appellate authority, over the said findings of
W.A. No. 46 of 2020
Ref: W.P. (C) No. 1049 of 2018 Page 14
the committee and action taken by the Government on the basis of such
Enquiry Report.
In support of his contention, the learned Addl. A.G. relied on the
Judgment of the Apex Court in the case of "Haryana Financial
Corporation vs. Jagdamba Oil Mills" reported in (2002) 3 SCC 496 (para
10-13).The learned Addl. AG also rely on the Judgment an order dated
03.07.2019 passed by this Court in W.P. (C) No. 829 of 2016 (paragraph 26-
32).
[21] It has also been submitted by the learned Addl. AG that the learned
Single Judge passed the impugned Judgment and order without considering
the pleadings filed on behalf of the State Government and the arguments
advanced on the basis of such pleadings.
The learned Addl. A.G.further submitted that the State respondents in
their pleadings/counter affidavit enclosed a copy of the letter/documents
written by the Executive Officer of the council, wherein, the name of one
ThangjamKoba Singh had been clearly mentioned and submission had been
advanced before the learned Single Judge that the said ThangamKoba Singh
is the paternal nephew of the respondent No. 1 and had been collecting toll
taxes on behalf of the contractor viz., Shri Sushilkumar Singh and that the
said contractor had admittedly not paid the collection of the toll tax to the
council.
W.A. No. 46 of 2020
Ref: W.P. (C) No. 1049 of 2018 Page 15
It has also been submitted that instead of cancelling the contract
awarded to Shri Sushilkumar Singh, the respondent No.1 had illegally
awarded fresh contract to the said contractor in violation of the Municipality
Act and hence, the case of direct or indirect share in the said contract/tender
of collecting toll tax had been clearly made out and accordingly, there is no
illegality in issuing the impugned order dated 12.11.2018, ordering the
disqualification of the respondent No. 1 from being a councilor.
Shri GA Romendro Sharma, learned counsel appearing for the
respondents No. 3, 5, 6 & 9 endorsed and adopted the arguments and
submissions advanced by the learned Addl. A.G.
[22] Mr. Th. Mahira, the learned counsel appearing for the respondent No.
1 submitted that a 5 (five) members Enquiry Committee headed by the
Deputy Commissioner, Thoubal, conducted an enquiry to the allegations
made by some councilors against the respondent No. 1 demanding for his
removal.
After making a detail enquiry, the said enquiry committee submitted a
reportexonerating the respondent No. 1 from all the allegations made
against him and on the basis of the said Enquiry Report, the Deputy
Commissioner, Thoubal, issued an order dated 13.12.2017 disposing of the
allegations as baseless and devoid of merit. Thereafter, when the State
Government issued an order dated 31.01.2018 ordering the disqualification
of the respondent No. 1 as councilor of Thoubal municipal council, the
W.A. No. 46 of 2020
Ref: W.P. (C) No. 1049 of 2018 Page 16
respondent No. 1 assailed the said order by filing a writ petition in this Court
and in the said writ petition, this Court passed an order on 02.02.2018,
suspending the said order dated 31.01.2018.Thereafter, the State
Government issued another order dated 13.02.2018, cancelling the earlier
disqualification order dated 31.01.2018.
[23] Subsequently, the State Government under its letter dated 13.01.2018
directed the Deputy Commissioner, Thoubal to cause a detail enquiry in
respect of 5 (five) issues of misconduct allegedly committed by the
respondent No. 1 and to submit a report on or before 25.04.2018 for further
necessary action. Pursuant to the said direction of the Government, the
Deputy Commissioner, Thoubal formed a District Level Enquiry Committee
consisting of 4 (four) members headed by the Deputy Commissioner, Thoubal
and the said committee after holding a detail enquiry submitted a report
dated 07.07.2018.In the said report submitted by the District Level Enquiry
Committee, no adverse finding has been made against the respondent No. 1
and in fact the respondent No. 1 was exonerated from all allegations made
against him.
[24] It has been submitted by the learned counsel appearing for the
respondent No. 1 that instead of rejecting the requisition submitted by the
councilorsfor removal of the respondent No. 1, the Government directed the
Executive Officer of the council to call a special meeting specifically for the
W.A. No. 46 of 2020
Ref: W.P. (C) No. 1049 of 2018 Page 17
purpose of removing the respondent No. 1 and to place the findings of the
said Enquiry Committee before the special meeting.
However, by a letter dated 27.10.218, the Government informed the
Executive Officer of the council that its earlier letter dated 03.08.2018 for
convening a special meeting has been withdrawn and directing the Executive
Officer to take necessary action for cancellation of the said meeting notice.
[25] The learned counsel for the respondent No. 1 further submitted that
instead of declaring the allegations made against the private respondents as
devoid of merit, the State Government with malafide intention issued a letter
dated 29.10.2018, addressed to the respondent No. 1, directing him to show
cause as to why appropriate action should not be taken against him under the
provisions of section 29 of the Act, in the light of the observations made in
the Enquiry Report dated 07.07.2018.
In response to the said show cause letter, the petitioner submitted his
reply in time, however, without at all considering the reports submitted by
two enquiry committees as well as the reply of the petitioner and without any
application of mind and in a very arbitrary and mala-fide manner, the State
Government issued the impugned order dated 12.11.2018, ordering the
disqualification of the respondent No. 1 from being acouncilor of Thoubal
Municipal council.
[26] It has been vehemently submitted by the learned counsel for the
respondent No. 1 that in the two enquiry reports submitted by the Enquiry
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Ref: W.P. (C) No. 1049 of 2018 Page 18
Committees, the respondent No. 1 had been exonerated of all allegations
made against him and no adverse findings had been given against the
respondent No. 1 that he acquired or continued to hold without permission of
the State Government directly or indirectly or as a partner, any share or
interest in any contract or employment with, by or on behalf, of the council.
Accordingly, it has been submitted that the impugned order disqualifying the
respondent No. 1 has been issued by the Government arbitrarily and in
colourable exercise of power andthe said order cannot stand in the eye of
law.
[27] Under Section 29 (1) of the Act, the State Government can remove
any elected councilor on the ground of his misconduct in the discharge of his
duties if the removal is recommended by a resolution passed a majority of not
less than two-thirdof councilors present and voting in a special meeting called
for the purpose. Under Sections 29 (2) (d) of the Act, the State Government
can remove any councilor if he has acquired or continued to hold without the
permission in writing of the State Government, directly or indirectly or as a
partner, any share or interest in any contract or employment with, by or on
behalf, of the municipality. The provisions under Sub-section (1) and (2) of
Section 29 of the Act has different and distinct applicability. In the present
case, the respondent No. 1 had been disqualified by the Government by
issuing the impugned order dated 12.11.2018 in exercise of the power Under
Sections 29 (2) (d) read with section 59 of the Act.
W.A. No. 46 of 2020
Ref: W.P. (C) No. 1049 of 2018 Page 19
[28] On examination of the first requisition letter dated 16.11.2017
submitted by 8 (eight) councilors for disqualifying the respondent No. 1 and
also the second supplementary letter dated 02.01.2018 submitted by 9 (nine)
councilors in support of the first requisition letter, except for certain
allegations of misconduct committed by the respondent No. 1 in discharge of
his duties as Chairman of the council, we do not find any specific allegations
being made against the respondent No. 1 in the aforesaid 2 requisition letters
that the respondent No. 1 has knowingly acquired or continued to hold
without the permission in writing of the State Government, directly or
indirectly or as a partner, any share or interest in any contract or employment
of the council.
[29] In the report dated 08.01.2018 submitted by the Executive Officer of
the council to the Government in connection with the allegations made in the
requisition letters for disqualification the respondent No. 1, no adverse
findings were given against the respondent No. 1.
An enquiry was held by a 5 (five) members Enquiry Committee on
13.12.2017 to find out whether the respondent no. 1 has direct/indirect
involvement in the contract work of entry tall tax and whether he has
direct/indirect involvement in the purchase of 2 (two) Bolero of the council
and submitted a report. In the said report no adverse findings were given
against the respondent No. 1 and in fact, on the basis of the said enquiry
report, the Deputy Commissioner, Thoubal issued an order dated 13.12.2017
W.A. No. 46 of 2020
Ref: W.P. (C) No. 1049 of 2018 Page 20
declaring that the allegations made against the respondent No. 1 are baseless
and devoid of merit.
[30] The State Government by a letter dated 13.04.2018 directed the
Deputy Commissioner, Thoubal to hold a detail enquiry against the
respondent No. 1 in connection with 5 (five) issues of misconduct allegedly
committed by the respondent No. 1 including the misconduct relating to the
award of contract work for collection of Tall tax of the council.
Pursuant to the direction of the State Government, the Deputy
Commissioner formed a 4 (four) members District Level Enquiry Committee
headed by the Deputy Commissioner, Thoubal and the said Enquiry
Committee conducted a detail enquiry against the respondent No. 1 in
connection with the 5 (five) issues of allege misconduct conducted by the
respondent No. 1 and submitted a detail report dated 07.07.2018. In the said
enquiry report also no adverse findings were given against the respondent
No. 1 and in fact there was not even a single whisper in the said enquiry
report that the respondent No. 1 has knowingly acquired or continued to hold
without the permission in writing of the State Government, directly or
indirectly or as a partner, any share or interest in any contract or employment
of the council.
[31] Even though, no adverse findings were given in any of the enquiry
reports submitted in connection with the enquiry held against the respondent
No. 1 in connection with the allegations made against him, the State
W.A. No. 46 of 2020
Ref: W.P. (C) No. 1049 of 2018 Page 21
Government, purportedly after due consideration and examination of the
enquiry reports along with supporting documents furnished by the Deputy
commissioner, Thoubal and the Executive Officer of the council, quite
surprisingly, gave a finding that there are certain points indicating direct or
indirect involvement and vested interest in the award of work to the
concerned bidder without any written permission of the State Government
and thereafter, disqualified the respondent No. 1 as councilor by issuing the
impugned order dated 12.11.2018.
[32] According to us, there is no material available on record to arrive at
the conclusion that the respondent No. 1 has acquired or continued to hold
without permission in writing of the State Government, directly or indirectly or
as a partner, any share or interest in any contract or employment of the
council so as to attract the provisions of section 29 (2) (d) of the Act against
the Respondent No. 1.
In our considered view, the State Government issued the impugned
order and disqualified the respondent No. 1 without any basis or material and
without any application of mind and in a very arbitrary manner.
[33] With regard to the contentions advanced by Mr. M. Rarry, learned
counsel appearing for the appellant that the learned Single Judge passed the
impugned Judgment and order without considering the specific pleadings filed
by the State Government and arguments advanced on the basis of such
pleadings,we have examined the relevant paragraphs and pleadings made on
W.A. No. 46 of 2020
Ref: W.P. (C) No. 1049 of 2018 Page 22
behalf of the State Government and we find that those pleadings are new
facts and grounds which were never placed or brought to the notice of either
the Enquiry Committee or before the Secretary (MAHUD), Government of
Manipur, who passed the impugned order. We are of the considered view that
such new pleadings or grounds have been raised by the State Government in
their affidavits to validate and to fill up the lacuna in issuing the impugned
order and accordingly, we cannot take into consideration such new grounds
or reasons while examining the legality and validity of the impugned order.
It is a well settled proposition of law that an order passed by a public
authority exercising administrative/executive or statutory powers must be
judged by the reasons stated in the order and such order cannot be
construed in the light of explanation or fresh reasons subsequently given in
the form of affidavit or otherwise. In this regard, we may gainfully refer to
the Judgment rendered by a constituted bench of 5 (five) Judges of the Apex
Court in the case of "Mohinder Singh Gill vs. Chief Election
Commissioner", New Delhi reported in (1978) 1 SCC 405 wherein, the
Hon'ble Apex Court held in Paragraph 8 as under:-
"8. The second equally relevant matter is that when a
statutory functionary makes an order based on certain grounds, its
validity must be judged by the reasons so mentioned and cannot be
supplemented by fresh reasons in the shape of affidavit or
otherwise.Otherwise,an order bad in the beginning may, by the time
it comes to court on account of a challenge, get validated by
W.A. No. 46 of 2020
Ref: W.P. (C) No. 1049 of 2018 Page 23
additionalgrounds later brought out. We may here draw attention to
the observations of Bose, J in "GordhandasBhanji."
"Public orders, publicly made, in exercise of a statutory
authority cannot be construed in the light of explanations
subsequently given by the officer making the order of what he
meant, or of what was in his mind, or what he intended to do. Public
orders made by public authorities are meant to have public effect and
are intended to affect the actings and conduct of those whom they
are addressed and must be construed objectively with reference to
the language use in order itself."
Orders are not like old wine becoming better as theygrow
older."
The said principle of law had been followed consistently by the Apex
Court in many subsequent Judgments.
[36] In view of our findings and reasons given hereinabove, we do not find
any ground for interfering with the impugned Judgment and order dated
26.11.2019 passed by the learned Single Judge and accordingly, we
dismissed the present appeal as being devoid of merit, however, without any
cost.
JUDGE JUDGE
FR/NRF
Sapana
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Ref: W.P. (C) No. 1049 of 2018 Page 24
