Bombay High Court
Baburao Vishwanath Mathpati And Etc. vs State Of Maharashtra And Others Etc. on 20 October, 1995
Equivalent citations: AIR1996BOM227, 1996(3)BOMCR15, (1996)98BOMLR384, AIR 1996 BOMBAY 227, 1995 (2) BOM CJ 498, 1995 BOMCJ 2 498, (1996) 1 MAH LJ 366, (1996) 3 BOM CR 15
ORDER Mane, J.
1. The petitioner challenges the validity of the order dated 29-7-1994 made by the Minister of State for Urban Development, Government of Maharashtra, exercising the powers of the State Government under S. 55 A of the Maharashtra Municipal Councils Act, 1965 (for short, the Act).
2. The petitioner was elected as President of the Parbhani Municipal Council on 17-12-1991 for a period of five years defeating his opponent-respondent No. 4 herein, namely, Shri Suresh Deshmukh who is also petitioner in companion Writ Petition No. 3329/1994. The candidature of the petitioner was supported by the opposition parties who defeated the official-Congress I nominee-the respondent No. 4.
3. At the out-set it is relevant to state few facts which are either admitted or not seriously disputed as averred in the pleadings.
Since January 1993 attempts appeared to have been made to dislodge the petitioner from the office of the President. Two non-confidence motions were moved on f 5-1-1993 and 5-6-1993 respectively at the behest of the respondent No. 4 but those motions stood lapsed for want of quoram. Further attempt was also made by the respondent No. 4 with active assistance of local Member of Legislative Assembly on 14-6-1993 moving the State Government to supersede the Municipal Council itself under S. 313 of the Act but that proceeding, though initiated was required to be dropped. The respondent No. 4 at the relevant time was President of Youth Congress I.
4. The petitioner avers that he was served with the show cause notice dated 28-12-1993 as to why he should not be removed from the office of the President on the grounds set-out in the show cause notice. He was asked to submit his reply within 15 days in respect of 7 charges. The petitioner has reproduced the allegations in the show cause notice dated 28-12-1993 in paras 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 and his explanation thereto in paras 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25 and 26. The petitioner also annexed the copies of the show cause notices at Exhibit "C"
page 78 in Marathi with its true English translation at page 82A.
5. The show cause notice begins with the averments that, "it has been brought to the notice of the Government by the District Collector, Parbhani and the District Divisional Commissioner and Regional Director of Municipal Administration that in the capacity of President of the Municipal Council the conduct of the petitioner was against the rules in following matters ....."
6. On 16-2-1994, without prejudice to his request for copies of the relevant material as referred to in the show cause notice, the petitioner submitted his two explanations --one in Marathi and another in English. The Marathi explanation consisted of factual position whereas English explanation raised certain questions of law. The petitioner also annexed his replies at Exhibit "D" in English dated 17-1-1994 pages 83 to 96, and Marathi explanation at Exhibit "C" pages 97 to 116 with annexures as well as true translations thereof at Exhibit "E" at pages 116A to 178B. It may be stated that the petitioner has given his explanation to the allegations contained in the show cause notice with better particulars by supplying the copies of the relevant documents in that behalf.
7. The petitioner thereafter received two communications through the Collector, Parbhani and the Desk Officer, Urban Development Department, to remain present on 9-3-1994 at Bombay for the purpose of hearing in respect of the show cause notice. On 9-3-1994 the petitioner as well as the Chief Officer of the Municipal Council accordingly remained present with the entire record in the chamber of the Minister of State for Urban Development.
8. It is averred by the petitioner that on that day the Minister of State informed the petitioner that the Government had decided not to supersede the Municipal Council and I the proceedings under S. 313 of the Act were dropped. The hearing, however, proceeded against the petitioner on the basis of the show cause notice. At this stage, the petitioner requested for copies of the enquiry reports conducted by the Resident Deputy Collector but the copies of those reports were not supplied to him on the ground that he was not entitled to receive the same.
9. Quite apart, the petitioner submitted that the show cause notice was based on vague charges and were contrary to the record. Moreover, the show cause notice also did not contain necessary particulars so as to enable him to know the allegations against him and ' the exact nature of the allegations and charges.
10. The petitioner averred that on 9-3-1994 the hearing of the matter went till 5 p.m. but it was not completed. According to the petitioner, the Minister of State was convinced of his explanation but on 9-4-1994 the Minister orally directed the Resident Deputy Collector to submit his additional report of inquiry within 15 days on certain points raised by the petitioner at the time of his personal hearing.
11. It appears that accordingly, Under Secretary one Shri Pete issued directions to the Divisional Commissioner calling upon him to obtain further report of inquiry and additional information from the Resident Deputy Collector, Parbhani. The additional inquiry" was conducted and report was submitted but copy of the additional enquiry report which was made behind the back of the petitioner and that too without his knowledge was also not supplied to the petitioner.
12. The petitioner has annexed the operative part of the impugned order dated 29-7-1994 at Exh. "A" page 64A which inter alia begins with the words "upon considering the documents and that of the oral and written explanations, and the applications and the arguments advanced before me by the President of the Municipal Council, Parbhani, I have come to the conclusion that all the charges contained in the show cause notice dated 28-12-1993 are proved against Shri Baburao Vishwanathrao Mathpati, President of the Municipal Council, Parbhani and that the President, Municipal Council, Parbhani is found to have neglected his lawful duties and found eligible to be removed from the post of President, Municipal Council, Parbhani....."
13. The petitioner has produced the order in Marathi passed by the Minister of State under S. 55A of the Act at page 65 with true translation in English as annexure 'B' at pages 77-A to 77-O.
14. The introduction to the order begins with the averments "..... on the basis of available documents and other reports on the twelve issues about the working of the Municipal Council, Parbhani, the President of the Municipal Council, Parbhani ..... prima facie haying been found to have committed dereliction in the discharge of his duties and irregularities in taking action the show cause notice is served as to why he should not be removed from the office of the President under S. 55A of the Act ....."
The order further recites that, "Shri Mathpati by his letter dated 17-1-1994 and 2-2-1994 requested the Government to furnish the copies of the reports submitted by the Collector, Parbhani and the Divisional Commissioner, Aurangabad to Government against him. Upon his application dated 4-1-1994 and 17-1-1994 extension is granted for the submission of reply to the show cause notice. By his letter dated 11-2-1994 he put up his say in file mentioning that the copies of the said reports were still to be received by him. In order to put his say in person, hearing was fixed on 9th March, 1994 and 19th April. 1994. On 9th March. 1994 it has been made clear that the reports of the Collector, Parbhani and the Divisional Commissioner. Aurangabad are of confidential nature and are privileged documents of the Government and that no copies can be made available in the show cause notice.
"..... it was made clear to him to put up his say voluntarily at this stage also. The President did not file any detail statement. He participated in the hearing that took place on 9-3-1994."
15. It may be stated that we will advert to the individual charges on the basis of which the show cause was issued and the explanation offered by the petitioner, at appropriate stages. It is however, necessary to mention further averments made by the petitioner in the petition with reference to the provisions contained in Ss. 58, 72 and 81 of the Act on the basis of which the allegations or charges were made in the show cause notice in the matter of breach of duties as President. The petitioner submitted that he cannot be liable for breach of the duties mentioned in these provisions of the Act. It is submitted that the matters covered in these various provisions of the Act fall outside the duties of the President of the Municipal Council and in most of the matters the Chief Officer is responsible for any irregularities or short falls in carrying out the functions assigned to him in that behalf.
16. It is suffice to mention that while giving explanation to each and every item alleged in the show cause notice the petitioner gave his explanation as to how he acted honestly and exercised his functions with requisite degree of skill and diligence than the earlier Presidents. The reference is made to the various communications addressed by him to the Chief Officer in respect of certain items having regard to the usual practice. It is, therefore, submitted that none of these items alleged in the show cause notice were neither proved nor sufficient to hold him guilty to invoke the provisions of S. 55 A of the Act.
17. In addition, the petitioner averred that the Minister of State has merely reproduced each and every item as appearing in the show cause notice in the final order without actually objectively appreciating the explanations offered by him. The petitioner specifically stated that the inquiry under S. 55A is quasi-judicial in nature and not of administrative nature. The State Minister neither recorded findings nor gave any cogent reasons in respective conclusions drawn by him. The Minister was expected to give or at least outline the process of reasoning by which he reached the decision to remove the President but did not give reasoning and on the contrary reproduced the allegations in the show cause notice. It is also stated that in para 35 of the impugned order, does not refer to the material alleged to have been considered, analysed and relied on nor records the reasoning to reach the conclusion and therefore, the impugned order suffers from non-application of mind. The petitioner averred the subsequent event or events on 29-7-1994 to show that the Minister of State had taken rather keen and unusual interest in seeing that the charge of the Office of President should be taken from the petitioner without giving time to him to approach the Court of Law. According to the petitioner the order of removal was pronounced in the State Legislative Assembly on 29-7-1994 before it was actually signed by him and before it was communicated to the petitioner. It is, therefore, submitted that the Minister of State had already made up his mind on or before 29-7-1994 and passed the order thereafter. Copy of the operative portion of the order was given to the petitioner on 1-8-1994. It is submitted that the petitioner was denied the certified copy of the impugned order on the ground that the order was not signed by the Minister of State. Therefore, it is further averred that if the impugned order was not signed by the Minister as to how and why it was pronounced in the Assembly on 29-7-1994.
18. In this context, it has been pointed out that the State Minister instructed the Secretary to ensure that caveat is filed in the High Court through the Collector, Parbhani. The Collector, Parbhani dispatched the copy of the caveat on 1-8-1994 on receiving the instructions from the Desk Officer, Urban Development Department and copy of the caveat was received by the petitioner on 2-8-1994 with a view to see that the charge is immediately taken and any stay to the order is not passed. The notice of the caveat, however, bears the date of the order as 30-7-1994, whereas, the impugned order is alleged to have been passed on 29-7-1994. The petitioner has filed copies of the notice of caveat received by him on 2-8-1994 at Annexure 'O'.
19. It is further averred that the Desk Officer to the Government also sent a fax message on 1-8-1994 directing the Collector to take charge of the Office of the President of the Municipal Council immediately. On 1-8-1994 order was accordingly issued and the Resident Deputy Collector issued notices calling upon the petitioner to remain present on 2-5-1994 for handing over charge. The charge was taken ex parte on 2-8-1994. The petitioner also annexes the copies of the letter issued by the Collector as well as the notice of the Deputy Collector as Exhibits P, Q and R. These circumstances, according to the petitioner, suggest a clear case of mala fides.
20. The Resident Deputy Collector submitted his report Vide letter dated 7-5-1994 addressed to the Deputy Secretary to the Government, Urban Development Department, Mantralaya, Bombay but the copy of the said report was not supplied to the petitioner. In this context, it is submitted that the Minister of State chose to wait for the additional report to be furnished before passing the final order. It is also averred that the Minister of State not only waited for the additional inquiry report to be submitted by the Resident Deputy Collector but relied on the same so as to sustain the charges against the petitioner. In this context, it has been pointed out that the original inquiry report conducted by the Resident Deputy Collector, Parbhani on 17-8-1993 contained recommendations to supersede the Municipal Council itself and appointment of an administrator. That recommendation was approved by the Collector vide his confidential letter dt. 17-8-1993. Therefore, instead of superseding the Municipal Council and appointing an Administrator under S. 313 of the Act, the State Government made him the scape-goat by initiating the action under S. 55A of the Act contrary to the recommendations of the Enquiry Officer for the grounds in the show cause notice. The proceeding under S. 55A of the Act and the subsequent action dated 29-7-1994 removing the petitioner from the office of the President of the Municipal Council, therefore, stood vitiated due to mala fide.
21. The petitioner further avers that the Minister of State had to decide to remove him not because the Enquiry Officer had recommended to do so but because he wanted to remove him since he did not belong to the party in power and wanted to install the respondent No. 4 a Councillor of the Municipal Council belonging to the party in power especially when there cannot be any other explanation as to why the Minister of State decided to drop the proceedings in the matter of supersession of the Municipal Council and at the same time proceeded with the removal of the petitioner from the office of the President. The Minister of State was, therefore, partial in his approach and was influenced by the political considerations,
22. In this context, the petitioner also averred that there is hostile discrimination so far as the petitioner is concerned when previous President was charged for misconduct the Minister had discounted the same and decided in favour of the Ex-President by the order dated 23-7-1988 in File No. MUM 1986/918/CR 102/86 UD-8, copy of which is annexed at Exhibit "J" to the petition.
The petitioner further avers that though there were several allegations against the several Presidents of the Municipal Council ruled by the persons belonging to the ruling party i.e. Congress I, the State Minister did not direct to conduct an inquiry in the charges against them through the Collector of respective districts. In fact, the State Government had chosen not to take actions against the Presidents of the Municipal Councils manned by the persons belonging to the Congress I despite the fact that the Collectors of the respective districts had recommended to initiate proceedings under Section 55A of the Act against them.
Therefore, it is submitted that the action under Section 55A against the petitioner was politically motivated and the impugned order was passed under political pressure exerted by the local Member of Legislative Assembly who joined Congress I party just before the respondent No. 4 had failed in his attempts to remove him from the office of the President.
23. It may be stated that the State Government filed reply which is sworn in by the Section Officer, Urban Development Department, Mantralaya, Bombay on 15-11-1994 which is at pages 228 onwards. The petitioner also filed his rejoinder on 13-1-1995 at pages 262 to 292. In the reply the respondents come out with more details to support the allegations in the show cause notice and to support the impugned order.
24. It may be stated that in regard to the non-supply of the copies of the relevant materials as referred to by the petitioner more particularly hereinabove stated, in para No. 22 (Page 245) of the reply, the respondent No. 1 submitted that the petitioner has no right to the copies of the reports of the Resident Deputy Collector and the Regional Director of Municipal Administration. No obligation is cast under any statute to supply copies of the said reports to the petitioner. It is further averred that the basis of initiation of proceedings under Section 55A was the reports, nevertheless, the order was passed on the basis of the show cause notice dated 28-12-1993 and the inquiry was held on the basis of show cause notice. Therefore, the petitioner is not entitled for copies of the reports. It is also averred that the report being internal matter of the office administration and these are the confidential correspondence and, therefore, the petitioner was not entitled for the copies of these reports. The respondents thus claim immunity from disclosing documents. It is pointed out that the petitioner was informed at the time of hearing that copies will not be supplied since they are confidential correspondence of internal administration. It is further submitted that it is within the domain of the competent authority to consider initiation of the necessary action for the smoother municipal administration. In exercise of this discretion on the basis of available record and preliminary reports, the State Government has considered it appropriate to initiate action under Section 55A of the Act.
25. In para No. 23 it is averred that the charges were based on fact, figures, details etc. taken out of the municipal record. The petitioner could have substantially replied to the show cause notice and the charges without the requirement of the reports of the concerned referred to above. It has been submitted that the Minister of State recorded his findings in respect of each charge after discussing the evidence and ultimately arrived at the logical conclusion in consequence of the findings as is explicit from the orders supported by the reasons at Exhibit B pages 64 onwards of the compilation.
26. In para No. 26 of the reply It has been submitted that the petitioner was not assured and promised at any time to supply copies of the additional reply sought for from the Resident Deputy Collector. As a matter of fact, it was not additional enquiry report but it was verification of the facts and figures urged by the petitioner during the course of his reply to the show cause notice. The additional information which was sought for by the Government was received vide letter dated 7-5-1994 from the Collector. That additional information was called for the use of the Government only to take correct decision in the matter.
27. In para 27 it is, therefore, denied that the petitioner has any right of hearing as against alleged report of the Resident Deputy Collector, inasmuch as, it was not an inquiry but explanation of certain facts alleged by the petitioner was ascertained. There was, therefore, no question to supply copy of the said report for the petitioner as it was meant for the official use.
28. In para No. 29 while denying the allegations of mala fide it is stated that the Collector, the Divisional Commissioner and the Regional Director or Municipal Administration as well as the Resident Deputy Collector are the authorities under the Maharashtra Municipalities Act to make the reports to the State Government as regards the state of affairs prevailing in the concerned municipal council against whom inquiry is directed. The authorities hold inquiry and make report with suggestions. Ultimately it is for the State Government to take final decision on the basis of the situation prevailing. After considered thoughts, final decision at highest level was taken for initiation of the action under Section 55A of the Act. The petitioner was given opportunity of hearing and, therefore, the order does not suffer from vice of any mala fide.
29. With reference to the contents of the para No. 40 of the petition, it is stated in para No. 13 of the reply that it was not the recommendation of the authorities to supersede the Municipal Council itself but it was a suggestion made in the course of the enquiry by those authorities in the form of advise hut the ultimate decision is within the domain of the State Government and it has been exercised accordingly. It is, therefore, denied that there was any mala fide so as to vitiating the enquiry.
30. It is stated in para No. 32 of the reply that the deponent was personally present at the time of hearing in the chamber of the Minister of State on 9-3-1994 at 12 noon and therefore, denies that the State Minister told the petitioner that he had decided not to proceed in the matter of supersession of the council on 9-3-1994 at 12 noon. It is, therefore, denied the correctness of the statement made by the petitioner. It is also denied that the State Government was partial in its approach and was influenced by the political considerations other than merits for taking decision dated 29-7-1994.
31. In para No. 34 of the reply it is admitted that the representation was received from the Member of the Legislative Assembly Shri Bobde as well as from several municipal councillors and all such representations were forwarded to the Collector to make inquiry and submit his report. It is, however, denied that the action is based exclusively on the allegations contained in the letter of the Member of the Legislative Assembly.
32. In regard to the complaints received in respect of the Presidents of other municipal councils viz., Malegaon, Beed, Udgir, Khopoli, it is submitted that the inquiry is ordered in that behalf and the reports from the concerned authorities were called for. Therefore, it is denied that no action against them was taken as Presidents of these Municipal Councils belonging to the Congress I party.
33. It may be stated that in para No. 39 of reply to the contents of para No. 49 of the petition, it has been submitted that the Chief Officer, Municipal Council, Parbhani is also partly responsible and separate action against him is being taken by the Government.
34. It is further submitted that the judgment delivered by the then Minister of State Dr. V. Subramaniyam cannot be based on similar grounds as two cases are not similar on facts and the allegations about discrimination are not borne out.
35. It is submitted in para No. 41 of the reply that the petitioner has come out with his own admission wherein he has admitted that he has hardly taken four meetings in his complete tenure of 18 months covered by the Item No. 1 in the show cause notice and, therefore, it cannot be said that it was a technical error and was not negligence of duties and cannot be a sole reason to remove him from the office of the President.
36. It is submitted that the show cause notice contains several allegations of misconduct, dereliction of duties and in-competency.
37. Lastly, it has been submitted in para No.47 of the reply that the Minister has signed the impugned order on 29-7-1994. It is, therefore, denied that the announcement in the Legislative Assembly floor was made before signing the order. It is submitted that it is not correct that the certified copy was not supplied to the petitioner because the order was not signed by the Minister. The petitioner applied for the certified copy of the judgment on 1-8-1994 and according to the petitioner he was supplied the certified copy on 3-8-1994. In para 48 it is, however, stated that the date mentioned in the caveat notice as 30-7-1994 is through oversight though actual date is 29-7-1994. It is admitted that the charge was taken on 29-7-1994 and the petitioner was removed from the office of the President but it is denied that the Minister of State has acted mala fide.
38. We think it would be appropriate to deal with some of the arguments advanced by the learned counsel for the petitioner in relation to the meaning of word 'neglect' as used in Section 55A and the procedure for exercise of powers under Section 55A of the Act. Before we advert to these arguments, we may mention that preamble of the Act intends to provide for a unifide pattern of constitution, administration and powers of the municipalities in the State of Maharashtra and to make better provisions thereof. The Act contains several chapters and chapter III contains provisions regarding the duties and functions of the council as well as the municipal executives. Section 51 of the Act inter alia provides that every council shall have a President, which shall be elected by the elected councillors from amongst themselves. The term of a President is co-terminous with the term of elected councillors. Section 55 however, contains a provision to remove President by councillors whereas Section 55A empowers the State Government to remove him from his office for misconduct in discharge of his duties or for an enquiry or in capacity of performing his duties or for being guilty of any of disgraceful conduct and the President so removed shall not be eligible for re-election or reappointment as a President during the remainder period of the office of council. It may be stated that Section 55A is introduced by Section 21 of the Maharashtra Act 19 of 1981. Proviso to Section 55A provides that no such President shall be removed from the office unless he has been given a reasonable opportunity to furnish ah explanation. There is another mode whereby a President can be dislodged from the office of the President. Section 313 confers a power on the State Government to appoint an administrator in certain circumstances by supersession of the Municipal Council.
39. Now, we come to the argument of the learned counsel for the petitioner. In the first place, we may mention that in the show cause notice the allegations of misconduct, dereliction of duty and neglect of duties have been stated but in the ultimate decision in the order it has been said that the petitioner was found guilty of 'neglect' of duties only. On the word 'neglect' of duties, there is, however, considerable difference of opinion amongst the learned counsel for the parties. It, therefore, becomes necessary for us to consider what is meant by the word 'neglect' as used in Section 55A of the Act. We may reproduce Section 55 A of the Act and it reads as under:
"55A. Without prejudice to the provisions of Sections 51A 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 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 reappointment as President or Vice-President, as the case may be, during the remainder of the term of office of the Councilors;
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."
40. Mr. Talekar, learned counsel for the petitioner, submits that the word 'neglect' will have to be understood with reference to the object to be achieved in the Act and therefore, according to him, the word 'neglect must mean 'gross neglect, wilful, intentional, culpable and lastly statutory negligence'. He invites our attention to some of the decided cases wherein the word 'negligence' or 'mis-conduct' came to be interpreted as 'gross negligence' or 'gross misconduct' or 'culpable misconduct'. A reference is made to the following cases:
(i) (1951) All ER 1102; (ii) AIR 1953 All 50 (sic); (iii) (1955) 2 All ER 330; (iv) 73 (3) All LR 64 (sic); (v) (1974) 1 All ER 262; (vi) , and (vii) AIR 1976 SC 205 (sic).
41. On the other hand Shri Ghatge, learned Assistant Government Pleader submits that the word 'neglect' will have to be considered in its plain literary meaning and no connotation such as 'gross, intentional, flagrant, statutory, etc.' could be adopted to the word 'neglect' as used in the section. He also invites our attention to the decision in (1951) 2 KB 579. The submission of Shri Ghatge, learned Assistant Government Pleader is also supported by Shri S. S. Choudhary learned counsel for the respondent No. 4 as well as Shri Dixit, learned counsel for the petitioner in companion writ petition.
42. We may refer to the word "neglect' as discussed in 65 Corpus Juris Secondum--409. The word 'neglect' has been many times and variously construed by the Court. It is not a term of fixed and measured meaning but has diverse shades of meaning in legal usage and it is susceptible to variety of significations. It takes its content always from specific circumstances and the word must be considered in the connection in which it is used and its meaning determined by examining the context in which it appears. When it is employed in a statute the general purpose of the statute may control and determine the meaning of the term as stated in the statute.
"The word 'neglect' is defined both as a noun and as a verb in terms of failure or omission to discharge or perform a duty; but one cannot be charged with failure to perform a duty unless he knows, or ought to know, that there is a duty incumbent on him to be performed. However, the word may import something more than a mere omission something more than a failure without fault; it may import an omission accompanied by some kind of culpability in the conduct of the person and it embraces wilful as well as unintentional disregard of duty. ....."
In case of 'neglect of duty', "the word 'neglect' as used in the term "neglect of duty' means failure to perform or discharge a duty and covers positive official misdoing or official misconduct as well as negligence."
43. Next, 'negligence' is a term which has been defined by the Courts and also by text-writers, with exceeding frequency and in various terms. 'Negligence' is a broad term an elastic term not confined within the precise precincts or to restricted relationships. It is merely a convenient term under which to group a failure to conform to standards of conduct insisted on by society and the ordinary cases presenting the issue of negligence is governed by the traditional rules which cover that issue. What constitutes 'negligence' varies under different conditions; in determining whether negligence exists in a particular case or whether the negligence or of duty amounts in law to negligence, all the attending or surrounding circumstances must be taken into account. The term 'negligence' has been held to be synonymous 'disregard.'
44. We have referred to the aforestated various meanings of the word 'neglect' as well as 'negligence' but this approach will be of little assistance while interpreting the word 'neglect' with reference to the test of a standard and reasonable man as applicable in law of torts. The Supreme Court in case of G.B. Mahajan v. Jalgapn Municipal Council considering the scope of reasonableness' as a test in administrative law, observed, "Different context in which the operation of 'reasonableness' as test of validity operates must be kept distinguished. For instance as the arguments in the present case invoke, the administrative law lest of reasonableness as the touchstone of validity of the impugned resolutions is different from the test of the 'reasonable man' familiar to the law of torts, whom English law, figuratively identifies as the "man on the Clapham Omnibus." In the latter case the standards of the 'reasonable man', to the extent such a 'reasonable man' is court's creation, is in a manner of saying, a mere transferred epithet."
In para No. 40 of the report, it is further observed, (para 19, at p 1164 of AIR) "..... another area of reasonableness must be distinguished is the constitutional standards of 'reasonableness' of restrictions on the fundamental rights of which the court of judicial review is the arbiter......"
And at last, in para No. 41 it is said, (para 19, at p 164 of AIR) "..... the administrative law test of reasonableness is not by the standard of reasonable man in torts law. ....."
It is, therefore, necessary to consider the import of the word 'neglect' as used in Section 55A of the Act as applicable in administrative law.
45. In this context, we would refer to the Principles of Statutory Interpretation by Justice G.P. Singh. The relevant portion would read thus:
"The problem of interpretation is a problem of meaning of words and their effectiveness as medium of expression to communicate a particular thought. A word is used to refer to some object or situation in the real world and this object or situation has been assigned a technical name referent. "Words and phrases are symbols that stipulate mental references to referents". Each word is but a symbol which may stand for one or a number of objects .
The courts have therefore to look essentially to the word of the statute to discern the 'referent' aiding their effort as much as possible by the context. The intention of the legislature thus assimilates two aspects. In one aspect it carries the concept of 'meaning' i.e. what the words mean and in another aspect, it conveys the concept of 'purpose and object' or the 'reason and spirit' pervading through the Statute. The process of construction, therefore, combines both literal and functional approaches."
In this context we emphasis what the Supreme Court said in case of Carew and Company Ltd. v. Union of India, , that the law is pragmatic instrument of social order and interpretative effort must be imbued with the statutory purpose. Similarly a construction that would promote the purpose or object of an Act even if not express is to be preferred. As stated by Iyer, J. in case of Chairman Board of Mining v. Ramjee, , to be liberal, literal in meaning is to see the skin and miss the soul. The judicial key to construction is the composite perception of the deha and the dehi of the provision. The Supreme Court has time and again observed that a literal and mechanical construction will have to be disregarded if it conflicts with some essential requirement of fair play and natural justice which the legislature never intended to throw overboard.
46. We may further mention that in Cross Statutory Interpretation by Dr. John Bell and Sir George Engle (II Edition), it is staled.
"Primacy, though not total supremacy, had to be given to the words of the statute. The mischief rule came to be largely, though not entirely, superseded by the 'literal' or, as it came to be called in America, the 'plain meaning' rule.
"Tindal C. J. recognised that before deciding whether the words are 'in themselves precise and unambiguous', the court must have regard to the whole of the enacting part of the statute. The proper application of the literal rules does not mean that the effect of a particular word, phrase or section is to be determined in isolation from the rest of the statute in which it is contained.
This had been recognised by Parker CB in the middle of 18th Century; but his words may be thought to have contained the germs of a third rule which, in order that it may be distinguished from the mischief and literal rules, is commonly called the 'golden rule'. It allows for a departure from the literal rule when the application of the statutory words in the ordinary sense would be repugnant to or inconsistent with some other provision in the statute or even when it would lead to what the court considers to be an absurdity. The usual consequence of applying the golden rule is that words which are in the statute are ignored or words which are not there are read in."
47. Thus, in determining the meaning of the word 'neglect' as used in Section 55A of the Act, the first question to ask is that, what is the natural or ordinary meaning of that word or phrase in its context in the statute?
48. Shri Talekar, learned counsel for the petitioner, made a great deal of emphasis on the word 'misconduct' as used in Section 313 of the Act which came to be interpreted by the Division Bench of this Court in to mean 'gross mis-conduct'. Similarly, he relied on two other decisions on identical issue wherein the Allahabad and Karnataka High Courts observed that there must be culpable or gross negligence in discharge of the duties.
49. The case on which Shri Ghatge, learned Assistant Government Pleader relies on is Pentecost v. London District Auditor (1951) 2 KB 759. But we think it is distinguishable. It was held in that the word "negligence" as appearing in Section 228(1) of the Local Government Act, 1933, to mean "negligence" at common law, that was any breach of duty whether grave or venial, which caused loss. Section 228(1) requires the District auditor at every audit of the accounts of a local authority held by him to "surcharge the amount of any loss or deficiency upon "any person by whose negligence or misconduct the loss or deficiency "has been incurred....." Therefore, no assistance can be had from this authority as sought to be argued by the learned Assistant Government Pleader for considering the meaning of the word "neglect" in Section 55A of the Act. Moreover, there involved no question of 'fair play' or 'free play' as observed by the Supreme Court in the case cited supra.
50. We may observe that a confusion may arise by reading the words "neglect' and 'negligence'. The word 'neglect' appears to have a different connotation than the word 'negligence'. The word 'neglect' as earlier said means 'gross neglect', wilful, intentional, culpable or flagrant disregard of duties." It is mentioned earlier that the President of Municipal Council can be dislodged by resorting to the power conferred on the councillors by moving no-confidence motion under Section 55 of the Act for no grounds or reasons are, required to be stated. The object behind this is that there should not be any stigma on the President so removed. We have also referred to Section 313 of the Act where the power is conferred on the State Government for supersession of the Municipal Council by appointing an administrator. There the word "mis-conduct" has been interpreted to mean "gross misconduct". Section 55A of the Act no doubt confers power on the State Government to remove the President on account of "misconduct, neglect of duties, incapacity to perform duties and disgraceful conduct." This provision sufficiently entails civil consequences and attaches stigma to the President and therefore, in order to remove a President on these grounds the order must be founded on strong grounds. Therefore, the word "neglect" must be understood from the gravity of the charges and therefore, the word "neglect" as used in the section means "gross neglect" which may be synonymous to the word "wilful, intentional or capable as the case may be" Three should be flagrant disregard of duties so as to call for removal of the President under Section 55 A of the Act. Therefore, applying the 'golden rule' of construction of statute which has been recognised by the Apex Court, we have no hesitation to come to the conclusion that the word 'neglect' has a connotation as 'gross', wilful' or 'intentional' neglect. Here we are concerned with either gross neglect or gross statutory neglect on the part of the petitioner. We therefore, proceed to consider the other contention of the learned counsel in regard to the procedure to be followed when power under Section 55A of the Act is to he exercised.
51. Shri Talekar, appearing for the petitioner, submits that Section 55 A of the Act is vague or uncertain in regard to the standard or guide for exercise of the power conferred on the State Government to remove a President but according to the learned counsel by applying the doctrine of reading down, the Section 311 as well as 312 of the Act can be extended to avoid unconstitutionality of Section 55 A of the Act. As a matter of fact, it is pointed out that Section 55 A corresponds to Section 50 of Zilla Parishads Act. Similarly, Sections 258, 269 correspond to Sections 311 and 313 of the Act. It is only in 1976 the Government thought it fit to issue the circular adopting the similar procedure as laid down in Section 50 of the Act even for the purpose of removal of a President of the Zilla Parishad.
52. Shri Dixit, learned counsel for the petitioner in the companion writ petition, in particular, however, urged that it cannot be said that the procedure under Sections 311 and 312 for the purpose of action under Section 313 of the Act can be applied for the exercise of the power under Section 55A of the Act. According to the learned counsel, these provisions are intended to have a preliminary report in the matter of the complaints against Council in administration of the council. Section 55A, however, is a complete code by itself which requires only an opportunity to be given to a President to make his explanation. The opportunity has been given to the petitioner and therefore, the power under Section 55 A of the Act cannot be said to be unguided power conferred upon the State Government to discriminate. This submission has been supported by Shri Ghatge, as well as Shri Choudhary, learned counsel for the respondents.
53. We think that it is not necessary for us to go into that question, because the provisions contained in Sections 311 and 312 are at the stage of the preliminary inquiry for action under Section 313 of the Act. In the present case there is no dispute that the inquiry was in fact conducted by the officer appointed by the State Government in that behalf in respect of the complaints received by the State Government. We are not shown any provision where a President is entitled to participate in the enquiry conducted by the officer appointed by the State Government on receiving the complaints, way of preliminary enquiry. We, however, feel that the enquiry reports received by the State Government would constitute the material on the basis of which the power under Section 55A of the Act can be exercised
54. It is true that Section 50 of the Zilla Parishads Act, 1961 corresponding to Section 55A of the Act with which we are concerned are pari materia. Similarly the provisions contained in Sections 258 and 269 of the Zilla Parishads Act also correspond to the provisions of Sections 311 and 313 of the Act. It is also true that no provision in the Zilla Parishad Act was made in order to effectively exercise the powers given to the State Government under Sections 50, 73 and 88 of the Zilla Parishads Act in regard to the complaints against the office bearers of the Zilla Parishads and the Panchayat Samitis prior to 1976. In order to have uniform procedure of entrusting enquiry in the matter of complaints against the office bearers of the Zilla Parishad and the Panchayat Simities the State Government, however, decided that wherever such complaints against the office bearers and Panchayat Samities are referred to the Commissioner for enquiry, the procedure should be followed mainly is that the complaint against the President and Vice-President and Chairman of Committee should be enquired into by the Commissioner or the Additional Commissioner and the complaints against the Chairman and Deputy Chairman should be inquired into by the Assistant Commissioner vide Government Circular, Rural Development Department No. PUS/1068/32611/N, dated 2-1-1969 read with the Government Circular No. ZPA/1076/122/71/679/XII, dated 25-11-1976.
In the case of the complaints against the President or Vice-President of the Council or Chairman of the Committees of Municipal Councils we are told at the bar that no such procedure is prescribed under the Maharasthra Municipal Councils Act by the State Government in order to effectively exercise he powers given to the State Government under Section 55-A of the Act but the Section 55-A of the Act is free from constitutional objection on the core of Art. 14 of the Constitution of India, inasmuch as the rules of natural justice have not been dispensed with expressly in the Act. Although no separate circular, prescribing the procedure under Section 55-A of the Act has been issued by the State Government, we feel, that it makes no difference.
55. That takes us to consider the other contentions raised by the learned counsel for the petitioners.
56. Shri Talekar, learned counsel for the petitioner urged that power under Section 55-A of the Act is quasi judicial power. Therefore, the order which is impugned in this writ petition is in the nature of quasi judicial order. In this context, emphasis is laid on a proposition in law that any order or decision which is one which results in civil consequences is a quasi judicial order or decision. In support of this submission Shri Talekar invited our attention to various decisions and to quote they are; .
57. It may be stated that the learned counsel for the respondents and we think rightly, conceded the position in law that a decision which is one which results in civil consequences is regarded as a quasi judicial decision. If the authority is empowered to take a decision which will prejudicially affect any person by such decision it will be a quasi judicial decision. We may mention that in case of A. K. Kraipak v. Union of India, , the Supreme Court has laid down (para 13, at p. 154 of AIR).
"The dividing line between an administrative power and a quasi judicial power is quite thin and is being gradually obliterated, For determining whether a power is an administrative or a quasi judicial power one has to look to the nature of the power conferred, the person or persons on whom it is conferred, the framework of the law conferring that power, the consequences ensuing from the exercise of that power and the manner in which that power is expected to be exercised. In a welfare State like India which is regulated and controlled by the rule of law it is inevitable that the jurisdiction of the administrative bodies is increasing at a rapid rate. The concept of rule of law would lose its vitality if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously. The procedures which are considered inherent in the exercise of a judicial power are merely those which facilitate if not to ensure just and fair decision. In recent years, the concept of quasi judicial power has been undergoing a radical change. What was considered as an administrative power some years back is now being considered as a quasi judicial power."
Principle as laid down in the aforesaid case has been followed in most of the decisions upon which reliance has been placed by Shri Talekar, learned counsel for the petitioner. It is, therefore, not necessary to refer to those decisions. We may, however, take an advantage from a decision in case of S.L. Kapoor v. Jagmohan, , wherein it is held that, "..... Before supersession of a municipality hearing must be afforded since said 'administrative action' entails civil consequences. ....."
Therefore, it hardly requires any argument to show that the impugned order is quasi judicial order.
58. Shri Talekar, learned counsel for the petitioner next urged that the impugned order is vitiated for non-supply of copies of relevant material, particularly copies of the reports relied upon, though the petitioner repeatedly demanded the same, both at pre decision and hearing stages. Therefore, failure to give the copies of material documents on which the show cause notice is founded caused a serious prejudice to the petitioner in making an effective explanation to show cause notice. It is, therefore, submitted that there is thus, violation of principle of natural justice.
59. It may be stated that the fact that the petitioner was not supplied with copies of reports to which mention is made in the show cause notice is rather an admitted fact. In the return filed by the respondent-Government, it is clearly stated that the petitioner was not supplied with those documents since he was not entitled to the copies of those reports. Shri Ghadge, learned Assistant Government Pleader, however, disputed the correctness of the submission of the learned counsel for the petitioner that the petitioner was prevented from making an effective explanation to show cause notice on account of non-supply of copies of the said reports. It is also disputed that merely because those copies of documents were not supplied there has been violation of principles of natural justice. In this context, Shri Ghadge, submitted that stand taken by the State Government is that the petitioner was not entitled to the copies of those reports inasmuch as those documents are privoleged documents and the State Government has a right to withhold the same from disclosing to the petitioner. It is also admitted that no prejudice can be said to have been caused to the petitioner to give his explanation to the show cause notice because the petitioner has given his detail explanation on each and every charge mentioned in the show cause notice.
60. In considering the rival submissions made by the learned counsel for the parties we think it would be appropriate to consider if immunity to withhold a documents asked for by the petitioner is permissible in law. It is suffice to refer to a decision in case of R.K. Jain v. Union of India . It has been held by the Supreme Court that in order to claim immunity from disclosure of unpublished State documents, the documents must relate to affairs of State and disclosure thereof must be against interest of the State or public interest. Public interest must be so strong as to outweigh the private or any other interest. We do not think that the documents to which reference is made in the show cause notice constituting material for forming opinion for an action under Section 55-A of the Act can be said to be privileged documents and the respondent-State Government can be said to have been justified in withholding the copies there of from the petitioner. There does not involve any question of any document being related to the affairs of the State or disclosure thereof would be against the interest of the State or public interest. The respondents in their return as well as in the impugned order, besides aforesaid reason for withholding those documents from the petitioner stated another ground that they are either confidential correspondence or official record and petitioner was not entitled to the copies of the same. Such documents cannot be said to be documents relating to the transaction of business by the Council of Ministers in respect of affairs of the State or communication or policy-decision taken at ministerial or scretariate level. An immunity from disclosure cannot, therefore, be claimed in the matter like the present.
61. In the view that we take, we will examine the second limb of contention, whether the non-supply of copies of these documents violated the principles of natural justice.
62. In the first place we would like to refer to a decision in case of Bhagat Ram v. State of Punjab, , wherein the Supreme Court had an occasion to consider a case of removal of the appellant in exercise of powers of the State Government under Section 16(1)(e) of the Punjab Municipalities Act. Dealing with the principles of natural justice, the Supreme Court has held (at pp. 1577-78 of AIR):
"..... That the order of removing the member passed by the State Government is of a quasi-judicial nature and it is obligatory on the part of the State Government to make available to the member concerned the material available before it and on the basis of which the show cause notice is issued. Even if those materials are not referred to in great detail it is open to the member to request the State Government to furnish him the materials on the basis of which the show cause notice has been issued so that he may give an effective answer."'
63. It may be stated that Shri Talekar, learned counsel for the petitioner also invited our attention to several other cases and to mention them, they are, . We have carefully gone through these rulings.
64. It cannot be disputed that every person whose right has been affected must have reasonable notice of the case he has to meet. Furthermore, he must be furnished with the information upon which the action is based. It is well established proposition that the opportunity must be reasonable. What is 'reasonable' however, depends on the facts and circumstances of each case and lastly, the documents which are necessary for effective exercise of foregoing right should not be withheld from such person. Moreover, it cannot also be disputed that where a party cannot meet the allegations against it for which it is asked to show cause and cannot properly meet those allegations with reference to the documents mentioned in the show cause notice it follows that the natural justice requires that the authority must furnish to the party the copies of those documents. Non-supply of such documents would obviously violate the principles of natural justice.
65. It is an accepted fact that the petitioner repeatedly asked for the copies of the reports which are referred to in the show cause notice coupled with other documents, both for the purposes of his making an effective explanation to show cause notice as well as to explain allegations made against him at the time of hearing. We have already observed that no right to withhold such documents can be claimed by the respondents, either on the ground that documents were privileged or on the ground of an immunity from disclosure of those documents could be claimed. We may mention that non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced. Thus, there is no merit in the contention of the learned Assistant Government Pleader that the documents which were asked for by the petitioner were not made use of either at the pre-decisional stage or post-decisional stage and, therefore, no prejudice can be said to have been caused to the petitioner. In the preamble of the show cause notice it is clearly mentioned that, ßftYgkf/kdkjh] ijHk.kh- o foHkxh; vk;qDr o izknsf'kd lapkyd uxjikfydk iz'kklu ;kauh 'kklukP;k vls fun'kZukl vk.kqu fnys vkgs dh uxjk/;{k ;k ukR;kus [kkyhy ckohaP;k lanHkkZr vki.kkdMwu fu;eckg; orZu >kys vkgs- R;k ckach i<hy izek.ks vkgsr%&&Þ Whereas in the preamble of the impugned order, it is stated, ßmiyC/k dkxni=s vU; vgoky ;kaP;k vk/kkjs uxjifj"kn ijHk.khP;k dkedkt fo"k;hPpk- okjk ckohaP;k lanHkkZr-Þ It is unlikely that the State Minister would not have used any of such enquiry reports, copies of which were withheld from the petitioner, for formation of his opinion in the matter.
66. We may re-collect that while dealing with the question whether the procedure prescribed under Section 311 of the Act applies for exercise of power under Section 55-A of the Act, we have observed that on receiving various complaints against the petitioner the State Government appointed an Enquiry Officer. There is no dispute that a Resident Deputy Collector was appointed as an Enquiry Officer and has submitted his report on the basis of which, show cause notice appears to have been issued. Not only that but in course of hearing the State Minister required further enquiry report from the said Officer for which he postponed the hearing and additional enquiry report was called for. There is no dispute that additional enquiry report was in fact received before the impugned order came to be passed. No copies of first report or the second additional report were supplied to the petitioner. There is hardly any reason for withholding the copies of these reports from the petitioner. The Supreme Court in case of M.P. Industries v. Union of India, , has observed as follows (at p. 675 of AIR):
"The principle of natural justice requires that a quasi judicial tribunal should not make any decision adverse to a party without giving him an effective opportunity of meeting any relevant allegations against him."
67. We may mention here that though show cause notice begins with the words on consideration of record available and other reports' no clarification is made as to what that record means and what the reports were, anywhere in the show cause notice or in the impugned order. It is, however, said in course of arguments of the Assistant Government Pleader that that was the record of the Municipal Council. The fact is that relevant materials relied on in show cause notice were not supplied to the petitioner.
68. We cannot overlook the serious consequences that follows from the action under Section 55-A of the Act. It is obvious that the petitioner would be disqualified from holding the office of the President and also from acting as a Member until the term expires. In other words, it entails evil consequences. The proviso to Section 55-A embodies principles of natural justice. There-
fore, non-supply of documents to the petitioner is violative of basic principles of natural justice.
In the facts and circumstances of the instant case, we have no alternative but to hold that there has been non-compliance of requirement of rule of natural justice at the pre-decisional stage as well as at post-decisional stage. We, therefore, find that the impugned order can be struck down on that score alone.
69. The next contention urged by the learned counsel for the petitioner is that the quasi judicial authority must give reasons for its order. Not only that but it must outline the process of reasoning by which it arrives at its decision. It is submitted that in the instant case, the impugned order lacks reasons.
In this context, it has been pointed out from the comparison of the contents of the show cause notice and the impugned order that it is mere reproduction of the same phraseology as used in the show cause notice in the impugned order. It is, therefore, submitted that there is total non-application of mind. This instance is also utilised by the learned Counsel for the petitioner is support of his further contention that there is also non-application of mind to the facts and circumstances of the case as more particularly disclosed in the explanation offered by the petitioner.
It is also submitted that there is total failure to take into account what the petitioner has explained in regard to the allegations made against him in the show cause notice. Failure to take into account the explanation offered by the petitioner further renders the impugned order illegal.
70. We may refer to the contention of the learned counsel for the petitioner when it is said that the impugned order lacks the reasons. There cannot be any quarrel on a proposition that a quasi judicial authority must give reasons for its order. Moreover, it is equally important to note that the quasi judicial (sic) must also outline the process of reasoning by which arrives at its decision. There cannot be any dual opinion that all the administrative orders must be made in conformity with the rules of natural justice.
. In this context we may take advantage to refer to the well settled principle of law that fairness must be observed even in the circumstances where natural justice is inapplicable. The object of fairness or fair play is to ensure that the vast power in the modern State is not for improper purpose or misguided by extraneous or irrelevant considerations and that the statutory authority arrives at a just or reasonable decision in affecting the rights of the person.
71. Keeping in view these aspects on the principles of natural justice, we find ourselves that what has been alleged in the show cause notice that has been reflected in the impugned order and this circumstance is -- sufficient justification to support the argument of the learned counsel for the petitioner. It may be stated that mere reference to the part of the say of the petitioner, without reasons for its acceptance or rejection is not enough. We may mention at appropriate stage that the petitioner has in fact explained various circumstances in answer to the various charges but those explanations have not been in any manner dealt with in the impugned order. What this signifies ? It merely suggests that the Minister acts in pursuance of the pre-determined policy without considering the merits of the individual case. It is well settled that non-arbitrariness would warrant compliance with the principles of natural justice when the impugned order involves civil consequences (see ). We feel that where the authority being under an obligation to act judicially passes an order which is in violation of the principles of natural justice the same would be vitiated in law.
72. On the point that the Minister has also failed to outline the process of reasoning by which he arrived at his decision or that there is failure to adopt 'objective-appraisal test' while determining the various charges made against the petitioner, we may consider this aspect while dealing with the individual heads of charges but we cannot resist from observing that there is total failure of appreciating the facts and the circumstances objectively when under the principles of natural justice objective finding on the basis of the relevant material placed before the authority is applicable. In The Municipal Council, Malkapur v. The State of Maharashtra, , it has been held that the order must be founded on ajudicial appraisal of the facts and circumstances on the basis of which the Government comes to the conclusion. There is, however, clear violation of this principle. We may further emphasise that it is one of the principles of natural justice that the explanations should be duly considered by the authorities and at least file will disclose as to why said explanation is not accepted or is not acceptable. We are, however, conscious that in no case that the Court has struck down an order on mere ground of failure to give reasons in the absence of the statutory requirement to give reasons. [See and ].
73. We may further consider the question whether the impugned order suffers from non-application of mind. It would be appropriate if we mention that out of 12 charges from the main 7 charges, only 4 charges are shown to be relevant concerning the duties of the President. Mr. Dixit learned Counsel for the petitioner on scrutiny of the charges in the show cause notice submitted that the charges Nos. 3, 5, 6 and 7 (ee) cover the provisions of Section 58 of the Act which cast special duties and functions on the President. Let us, therefore, (sic) to the aforesaid charges.
74. Charge No. 3 is that the petitioner did not convene the general body meeting as required under Section 81(1) of the Act but only three meetings were convened during his tenure as President of the Council from December, 1991 to June, 1993 and as such he violated the provisions of Section 81(1) of the Act when as President he was responsible for that.
(A) In reply to this charge the petitioners stated that during his tenure since last 2 years, 22 meetings of the Council were convened, He has given a list of the meetings of the Council held. It is further stated that in the meetings, indicated in the point, some members created unprecedented atmosphere in the meeting hall for which certain meetings could not be held during the period. Besides, he stated that the Chief Officer was required to submit a report of the District Collector if a meeting of the general body is not held in 2 months. No report is sent. He, therefore, submitted the minutes of the general body meeting held on 28-1-1993 for information.
(B) It may be stated that out of 22 meetings of the Council convened by the petitioner during his tenure from 15-2-1991 to 23-12-1994, 5 general body meetings were convened and rest of the meetings were special meetings. It may be further stated that nowhere in the charge it is stated that on failure of the petitioner to call an ordinary meeting within the specified period in clause (1) of Section 81 of the Act, the Chief Officer reported such failure to the Collector and the Collector called the ordinary meeting in consultation with the Chief Officer. There is also no mention in the charge that any Councillor or Councillors requested the Collector to take action under sub-section (1A) of Section 81 of the Act. Quite apart, there is also no mention in the charge that during the tenure of the petitioner as President, Councillors requested or demanded convening of the general body meeting by the President and he avoided to convene such general body meetings for transacting the business. It is no-where stated in the charge that the general body meeting was necessary for transacting the business of the Council but on failure of the petitioner to convene such meeting either deliberately, wilfully or grossly neglecting his duties, the administration of the Council was hampered. Unless such facts to appear in the charge we do not think that mere act of non-convening the meetings of the general body will constitute a breach of sub-section (1A) of Section 81 of the Act. This is so, because neglect of the duty must be wilful and gross neglect.
(C) Mr. Talekar, learned Counsel for the petitioner, is right to refer to the decision in the case of Munilingiah v. Divisional Commissioner, Bangalore Division, (1977) 2 Kant LJ 24, wherein Section 47 of the Karnataka Municipalities Act, 1964, came to be considered. Under Section 47 of the said Act the duty is also cast on the President to call a meeting to transact the business of the Municipal Council. On similar charge while construing Section 47 of the said Act, it has been held that :
"Under Section 47 of the Act the Municipal Council has to meet to transact business and when there is no business in transacting the business the question of calling a meeting does not arise....."
In that case the charge was that the President had deliberately failed to conduct the meetings regularly as required by Section 47 of the said Act and the Divisional Commissioner found the charge established and directed removal of the President from office but the High Court held that since there was no charge either to the effect that although there was business to be transacted yet no meeting was held or that although the Councillors wanted to convene the meeting but it was not convened, the order of removal was vitiated as having been rendered in violation of the principles of natural justice.
(D) Section 81 of the Act contains provisions in regared to the meeting of the Council. Sub-section (1) of Section 81 of the Act inter alia provides :
"The following provisions shall be observed with respect to the meetings of a Council :--
(1) For the disposal of general business, which shall be restricted to matters relating to the powers, duties and functions of the Council as specified in this Act or any other law for the time being in force, and any welcome address to a distinguished visitor, proposal for giving Manpatra to a distinguished person or resolution of condolence (where all or any of these are duly proposed), an ordinary meeting shall be held once in two months. The first such meeting, shall be held within two months from the date on which the meeting of the Council under Section 51 is held, and each succeeding ordinary meeting shall be held within two months from the date on which the last preceding ordinary meeting is held. The President may also call additional ordinary meetings as he deems necessary. It shall be the duty of the President to fix the dates for all ordinary meetings and to call such meetings in time."
Sub-section (1 A) provides :
(1A) If the President fails to call an ordinary meeting within the period specified in clause (1), the Chief Officer shall forthwith report such failure to the Collector. The Collector shall, within "seven days from receipt of the Chief Officer's report or may, suo motu, call the ordinary meeting. The agenda for such meeting shall be drawn Up by the Collector, in consultation with the Chief Officer :
....."
As we have said earlier, it is not shown in the show-cause notice that there was business to be transacted at any such meeting restricted to the matters specified in Section 81(1) of the Act nor it has been shown that on failure of the petitioner to call an ordinary meeting within the specified period the Chief Officer made any report on failure of the petitioner, to the Collector and the Collector acted on such report or suo motu to call the ordinary meeting. There is also nothing in the show cause notice that the Councillors made any request or complaint to the Collector in regard to the business to be transacted at general body meeting. If this were the case how it can be said that the petitioner committed breach of his duty in calling the general body meeting by virtue of the provisions contained in sub-section (1) of Section 81 of the Act. We are in agreement with the view taken in the case of Munilingiah (1977 (2) Kant LJ 24) (cited supra) that unless it is shown that there was some business to be transacted in respect of the matters specified in sub-section (1) of Section 81 of the Act, mere failure to convene such meeting would not be the 'neglect' of duty. In this context we may go to the impugned order with reference to this charge.
(E) The impugned order (translation at page 77G of the paper book) recites :
"Under Section 81 the President should take general meeting once in two months but the President, Parbhani stated in his statement during the period from December, 1991 to June, 1993, he has convened 4 general body meetings. During the above period 9 general body meetings ought to have been conducted. From this is it proved that the President failed in his duty under Section 81 of the Act."
In view of our discussion as aforesaid, it cannot be said that merely because the petitioner failed to convene 9 general body meetings and only 4 meetings were held, that would constitute breach of Section 81 of the Act so as to constitute a ground to proceed against the petitioner to dislodge him in exercise of the powers under Section 55-A of the Act.
(F) It is apparent from the above discussion, the Minister of State has not applied his mind to the requirements of law and also the explanation offered by the petitioner, which also explained his inability to convene the general body meeting on account of unprecedented disturbances. The fact cannot be overlooked that the petitioner was elected as President with the support of the opposition and during his tenure as President he was to face two no confidence motions, which, however, never saw light of they day. We are, therefore, satisfied that the conclusion drawn on Charge No. 3 holding the petitioner guilty of neglect of his duties is not in conformity with the principles of natural justice. The finding, therefore, suffers from non-application of mind.
(G) Mr. Dixit, learned counsel for the respondent No. 4, however, submits that the mandate under Section 81 of the Act is to call general body meeting regularly once in two months and it cannot be substituted by any other proceedings in the name of the special meetings. In the instant case the President called special meetings again and again for the purpose of execution of certain works which were neither special nor emergent and said meetings were called for the limited purpose of getting approval to the limited subjects as mentioned in the agenda of the said meetings. The learned counsel further submitted that by the letter dated 14-4-1994 the Chief Officer of the Municipal Council informed the District Collector, Parbhani, about the adjournment of the general body meeting held on 30-8-1993 and failure of the President to call for the general body meeting- He emphasised the need for calling the general body meeting. It is, therefore, submitted that if the President fails even to call general body meeting but calls special meeting that does not necessarily mean that there is compliance of Section 81 of the Act.
75. The submission of Mr. Dixit, learned counsel for the respondent No. 4, which submission is also supported in the arguments of the learned counsel Shri Choudhary and Shri Ghatge, learned Assistant Government Pleader is misplaced for what we have said above. The letter dated 14-4-1994 of the Chief Officer of the Municipal Council to the Collector regarding failure of the President to call for the meeting is of no help because it is subsequent to the show cause notice.
76. The next charge No. 5 is that the provisions of Section 58(1)(c) of the Act is violated for not implementing the earlier Development Scheme satisfactorily and further delaying the implementation of the resolutions passed by the general body for approval to the new Draft Development Plan under Section 30 of the Maharashtra Regional and Town "Planning Act, 1966. The Petitioner as President was responsible for these matters.
(A) The petitioner in the first place submitted that the allegations that the lands reserved under the Development Plan of the Municipal Council were not developed are baseless. He submitted that he was responsible for the development of the lands reserved under the Development Plan to such an extent that no other President had ever been able to develop the same to the extent he did. In this context the petitioner pointed out that 17 reserved lands were developed previously whereas about 8 reserved lands were developed during his tenure of two years. Besides, the petitioner also stated that the steps are being taken for proceedings for development of the lands and the proceedings are still in progress and he is pursuing the matters in right earnest. He pointed out that to get approval to the Draft Development Plan he called meetings on 7 occasions but the final decision was not yet taken. He submitted that whatever possible he has discharged his functions in right earnest. He, therefore, submitted that the work of development of the reserved lands during his tenure was better than his predecessors.
(B) In the order it is stated that in this respect it is argued by the President that the work done by him is of greater volume and better in quality as compared to his predecessors in respect of development of reservation but only 8 works got developed during his tenure out of the total 54 reservations. Hence to say that the progress in his work is good carries no meaning. The President is guilty of non-supervision under Section 58(1)(c) of the Act.
(C) It is clear from the finding recorded against this charge that the explanation offered by the petitioner has been totally ignored. This instance further demonstrates total non-application of mind.
77. Charge No.6 is in respect of appointments of daily rated employees. It is alleged that despite the clear orders from the Collector to the Minicipal Council through the Circular dated 24-8-1986 not to employ workers on daily wages basis the Parbhani Municipality has employed 231 workers on daily wages and out of them 24 workers have been appointed during his tenure. Therefore, Rs. 17,00,000/- to Rs. 18,00,000,- have to be paid to these workers every year. This has caused financial loss to the Council. The petitioner as President is totally responsible to this.
(A) The petitioner in his explanation disputed the correctness of the allegations and submitted that the daily rated workers under the orders of the Hon'ble High Court and the Labour Courts were continued. Moreover, most of the employees were recruited by his predecessors and their services were required to be continued under the orders of the Court. Not only that but it has been explained that the services of such employees were found necessary and their appointments were made with the prior approval of the Collector, Parbhani and no new post was created despite the proposal to accord sanction or creation of new post was pending but this fact has not been taken into account. The petitioner annexed copy of the letter dated 13-8-1992 of the Collector (translation of the said letter is at page 166A of the paper-book) according sanction to recruit workers. It is specifically stated in the said letter that "the permission is granted to recruit 100 workers for a period of one month subject to the conditions given in the Government Circular dated 23-6-1986".
(B) If we turn to the reasoning at page 77-I (translation of the impugned order) it is stated that the President by making 24 appointments on daily wages has exceeded the directions issued under Section 76 of the Act by the Director of Municipal Administration as contained in the circular dated 23-6-1986. It is observed that it was necessary for the President to see that where services are not required the appointees were terminated on eligible compensation or notice. The order recites that the argument that the Industrial Court has ruled against the termination and, therefore, the services were continued appears to be not proper because the President ought to have gone in appeal to the Supreme Court against the decision of the Industrial Court. On failure in this respect the Municipality is required to sustain unnecessary administrative expenditure for this the President is found guilty under Section 58(f)(c) of the Act.
(C) We fail to understand how the aforesaid reasoning is logical and can stand to reasons. In case if the petitioner would have acted against the statutory directions given by the higher authorities in respect of the appointments of daily rated workers, which was absolutely necessary, in view of the ban on recruitment, in that case the petitioner would have been so informed by the authorities for dereliction in his statutory duties. The very fact that the recruitment was made with the previous sanction of the Collector, which was not specifically challenged, clearly exonerates the petitioner from such charge. It is unlikely that the petitioner would have challenged the order in the Supreme Court. This is also glaring instance of non-application of mind.
78. We make it clear that we have set-out what was alleged in the show cause notice, what was replied by the petitioner to those charges and were held proved by the Minister for the limited purpose to see if there has been proper application of mind by the Minister by applying the test of objective satisfaction. We are aware that the Court in a proceedings for Mandamus cannot sit as a Court of appeal of substitute its own discretion for that of the authority in which the statute has vested the discretion but in determining the reasonableness of the exercise of the powers the Court should take into account the circumstances which call for the exercise of the powers and uphold the order if there was nothing upon which the authority would have reasonably come to the conclusion. In this context we may mention that in the return filed by the respondents additional grounds are brought to show that the decision or the order which is impugned in this writ petition is supported by sound reasons. It may also be stated that it is accepted in the return filed by the respondents that in respect of some of the charges the Chief Officer was equally responsible if not more. We, may, however, mention that it is, therefore, appropriate to refer to the decision of the Supreme Court in Mohinder Singh v. Chief Election Commissioner, :
"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 additional grounds later brought out."
79. So far as other charges are concerned we do not think that it is necessary to set out other charges in the same manner in which we have dealt with the other charges in the show cause notice issued to the petitioner and the impugned order passed by the Minister of State, under Section 55-A of the Maharashtra Municipal Councils Act. It may be stated that no effective arguments were advanced in respect of the remaining charges levelled against the petitioner by the learned counsel on behalf of the Respondents. However, with abundant precaution we would like to state that we have carefully gone through the contents of the show cause notice in respect of those charges levelled against the petitioner, the reply given by the petitioner which is most logical and acceptable and still it is discarded by the Minister of State with the finding contrary to the ultimate conclusion drawn by the Minister of State. Even after the perusal of the impugned order passed by the Minister of State under Section 55A of the Act against the petitioner, we are of the opinion that the reply given by the petitioner to the show cause notice together with the details given by the petitioner under various heads of charges contained in the show cause notice have not at all been taken into consideration by the Minister of State and thus, the impugned order passed by the Minister of State against the petitioner removing him from the office of the President under Section 55-A of the Act suffers from non-application of mind on the part of the Minister of State. The admission of part of allegation in show cause notice by the petitioner in his explanation appears to have been misread and even in that case, rule of natural justice cannot be dispensed with.
80. Under the circumstances, the impugned order deserves to be quashed.
81. We would like to make it clear that the charges which were strongly argued before us are dealt with in detail byway of illustrations only.
82. Now, coming to the further contention it is impugned order suffers from mala fide if regard be had to the various circumstances which he has enumerated as follows:
(a) The Petitioner is made scapegoat by initiating action under Section 313 of the Act against the Council. In this context it is stated that the petitioner was given to understand that the Inquiry Officer had recommended as a result of inquiry to supersede the Municipal Council and appoint an Administrator under Section 313 of the Act but instead of superseding the Municipal Council the Government gave notice to remove the petitioner form the office of the President on the same set of the allegations especially when the show cause notice is contrary to the recommendations of the officer. In this context it is pointed out that by the notice dated 2-3-1994 the petitioner was required to be present in the chamber of the State Minister at 12 noon on 9-3-1994 in respect of the supersession of the Municipal Council but one more notice was given to the petitioner requiring him to remain present at 2 p.m. in respect of his removal from the office of the President. The petitioner Was informed by the State Minister that he had decided not to proceed with the matter of supersession and the meeting at 12 noon was accordingly cancelled.
(b) The action is influenced by the political considerations. It is argued that the State Minister appears to have decided to remove the petitioner not because the Enquiry Officer had recommended to do so but because he wanted to remove the petitioner as he did not belong to the party in power and further he wanted to install the respondent No. 4 in his place as the respondent No. 4 belongs to the party in power. It is submitted that there cannot be any other explanation as to why the State Minister decided to drop the proceedings in the matter of supersession of the Municipal Council and at the same time proceeded in the matter of removal of the petitioner from the office of the President. The impugned order is passed not only under political motive but also was passed under political pressure exerted by the local Member of the Legislative Assembly. In this context it is submitted that the inquiry was directed into the allegations contained in the letter of the Member of Legislative Assembly, Sri Bobde, Advocate who joined Congress I party very recently when the respondent No. 4 was acting as Secretary of the Congress I District Unit. There were several other Municipal Councils ruled by Congress I and several serious allegations were made against the President of those Councils but the State Minister did not direct inquiry into those allegations by the State Minister through respective Collectors. The State Minister did not take initiative to launch proceedings against them because they were belonging to the Congress I party. It is also pointed out that despite the Collectors's recommendation to the State Government to initiate the proceedings against some of those Presidents no action appears to have been taken.
(c) In this context it is also pointed out that the State Minister as a matter of fact was more than convinced that the allegations against the petitioner were baseless and proceedings were to be dropped but he pronounced his decision after three and half months from the date of hearing of the petitioner under political pressure.
(d) The impugned order is bad because the matter was prejudged. It is submitted that the State Minister hadalready made up his mind on or before 29-7-1994, whereas, the impugned order is passed thereafter. In this context, it is submitted that the State Minister first announced the decision on the floor of the Legislative Assembly and later signed the order because though the petitioner applied for the certified copy pf the order on 1-8-1994 he was not supplied the same except the extract of the order: The learned counsel submitted that here is a case where undue interest is taken and this is evident from the facts that he instructed his subordinate officers to file a caveat on 1-8-1994 so as to oppose any stay from the petitioner in the High Court. Moreover, the Collector, Parbhani was directed to take charge of office of the President forthwith. He invited our attention to the various communications in that behalf.
83. Mr. Ghatge, learned Assistant Government Pleader pointed out from the return that the allegations of the circumstances upon which reliance is placed by the learned counsel have been specifically denied. He also submitted that mala fide administrative action is never presumed but has to be proved and burden lies on the party who alleges it. In the present case, according to him, the petitioner has failed to prove mala fides in the action on the part of the State Minister.
84. We have already reproduced above the material say of the respondents in the return with reference to the allegations suggesting mala fides. In the first place ft is rather an admitted position that in the case of other Municipal Councils belonging to the ruling party though were similarly situated no proceedings and no action appear to have been taken against them. Similarly on identical issues the Ex-Minister for State has exonerated the then President of the Parbhani Municipal Council from similar charges, copy of the judgment is annexed to the petition. It appears that the charges levelled against the then President were more grave than the allegations levelled against the petitioner in the show cause notice, as they related to financial implication. Significantly there is no allegation of any misconduct involving financial implications or dishonesty on the part of the petitioner in discharge of his duties.
85. We feel that this is a case where there is discrimination when the petitioner -- an individual -- is singled out from number of persons similarly situated for hostile treatment. It cannot be denied that initiation for action against the petitioner is actuated at the behest of the respondent No. 4 and the local Member of Legislative Assembly who has recently joined the ruling party and when the respondent No. 4 appears to have failed in his attempt to dislodge the petitioner by resorting to no-confidence motion. It is not a mere accident but it is a fact that the respondent No. 4 has been installed as new President during the pendency of this petition. However, in case if reply given by the petitioner to some charges which we have not dealt with but involving some irregularities, both particularly in respect of functions such as supervision and control of administration of Municipal Council, it is fairly admitted by the counsel for the respondent that the petitioner alone cannot be blamed but Chief Officer, who is directly concerned with the day to-day administration in respect of such functions or supervision and control of Municipal administration is equally to be blamed. We are, therefore, convinced that in absence of dishonesty, malfeasance or non-feasance of grave nature there was no material for initiating action against the petitioner and necessary inference that can be drawn is that action appears to have persuaded on political pressure.
86. Mr. Talekar, learned counsel for the petitioner also tried to argue on the point of discrimination. It is submitted that the previous President of the Municipal Council was charged with the allegations more or less similar to the allegations contained in the show cause notice issued against the petitioner. But the Minister, one Dr. Subramaniam had discounted similar allegations and decided in favour of the previous Presidents by the order dated 23-6-1986, copy of which is annexed to the petition at Exhibit J. In the present case the Minister took just a different view than his predecessor while passing the order under Section 55-A of the Act against the petitioner. It is submitted that the Minister Dr. Subramaniam held by his order dated 23-6-1986 that it hardly matters whether the general body meetings were held once in two months so long as the business of the Council is transacted in special meetings. In this context it is submitted that though they were serious charges including one of misappropriation and abuse of powers against the President of the Beed Municipal Council who happened to be the son of Congress I Member of Parliament from Beed Parliamentary Constituency and a very influential family, no action was taken but the Minister adopted double standards in respect of the President of the Municipal Council which is ruled by opposition and Presidents of the Municipal Council belonging to the Congress I party.
87. We may only observe that the action against the petitioner does not appear to be within the scope of authority conferred on the Minister by law when it is found to be unreasonable.
88. Before closing we may mention some of the arguments which are advanced on behalf of the respondent No. 4. At the initial stage of the arguments Mr. Choudhary, learned counsel for the respondent No. 4 submitted that even after filing the present writ petition, the petitioner had filed one application before the authorities and perhaps the said application must have been under Section 320 of the Act. The learned counsel further submitted that under the provisions of Section 320 of the Act, the State is invested with the powers of review. The State Government may, either on its own motion or on the application of any party interested review any order and the Director or the Collector may similarly review an order passed by himself or any sanction or approval given by him under the Act and pass such order as he or it thinks fit. There is a proviso to Section 320 of the Act. However, at this stage it is not necessary to deal with the same. The learned counsel submitted that especially when the petitioner has taken recourse to the alternate remedy which is available to him under Section 320 of the Act, the present writ petition would not be maintainable at this stage. However, Mr. Talekar, learned counsel for the petitioner, submits that even though the petitioner had made such an application to review the present impugned order which is subject-matter of the present writ petition, he would like to withdraw the same and accordingly he has filed an affidavit to that effect. Moreover, as per the proviso, the review application is to be filed within 90 days from the date of passing of the order. Needless to say, if at all the petitioner has preferred such a review application it is barred by limitation. However, the matter has come to an end especially when the petitioner has filed an affidavit to the effect that he would withdraw the same.
89. It is further submitted that after going through the contents of the writ petition, most of the allegations are made against the Ex-Chief Officer and also Ex-President, Shri Suresh Deshmukh but they are not added as parties. In respect of the allegations made against Mr. Suresh Deshmukh, we could see that they are only by way of reference and have nothing to do with the subject-matter of the impugned order. In respect of the allegations against the Ex-Chief Officer it is pointed out to us during the course of arguments that the State is taking separate action by issuing the show cause notice to him though at present he stands retired from service. Even though certain allegations are made against the Ex-Chief Officer, they have nothing to do with the subject-matter of the present writ petition. According to us, they are not necessary parties.
90. It is further submitted that the Municipal Council Parbhani is not joined as a party when in fact it is a necessary party. We may mention that the Municipal Council is not at all a necessary party and we called the concerned authorities of the Municipal Council, Parbhani only with a view to produce certain record and proceedings and nothing more. In our opinion the Municipal Council is also not a necessary party.
91. It is further submitted by the learned counsel for the respondent No. 4 that the allegations are made against the Minister of State who has passed the impugned order and he ought to have been joined as a necessary party. However, it appears that the Minister has passed the order under the authority vested in him according to law and as such he is also not a necessary party.
92. In conclusion we thus find that the various infirmities as hereinabove noticed leave no scope for doubt that the entire proceedings are vitiated due to violation of the principles of natural justice and all norms of propriety and procedure. It is also clearly a case of there being no evidence at all to support the findings of guilt. If this is not such a case it is difficult to comprehend what else could be. The net result is that the impugned order is totally vitiated in law and is liable to be quashed.
93. It is pointed out to us by the learned counsel for the respondent No. 4 and the -learned Assistant Government Pleader that the petitioner has not claimed any relief against the respondent No. 4, who is at present working as President of the Municipal Council, Parbhani. It is pointed out by the learned counsel for the petitioner that after the impunged order the petitioner filed the above writ petition on 12-8-1994 while the respondent No. 4 came to be elected as President of the Municipal Council on 2-11- 1994. Mr. Talekar, learned counsel for the petitioner, submits that it is not necessary to amend the petition by seeking a prayer for the removal of the respondent No. 4 as President of the Municipal Council when the principle of lis pendens applies. Moreover, he points out that this Court has already passed an order on 1-11-1994 when the application for interim relief of stay to the meeting to elect new President was to be held on 2nd Nov. 1994 at 12 noon this Court has passed an order in extenso and refused to grant interim relief. However, it is observed that the election of the President of the Municipal Council which is to take place on 2-11-1994 shall be subject to the result of the present writ petition. Similarly Mr. Talekar has placed reliance on the ruling reported in 1995 AIHC 3644 (Punj & Har), Parvinder Singh v. State of Punjab. On identical issue it is observed in para 11:
"In view of the above we are satisfied that the impunged order dated 19th April, 1994 (Annexure B-5) by which the petitioner was removed from the office of the presidentship as well as membership of the Committee cannot be sustained. It is quashed. The petitioner is restored to his original position. Mr. Bagchi has pointed out that during the pendency of the petition a fresh election had taken place. In our view, the election is governed by the principle of lis pendens. In any case fresh election had taken place on account of the impugned order. Once the impugned order is quashed election cannot be survive. As a necessary consequence status quo ante as existed prior to April 19, 1994 has to be restored."
The present writ petition field by the petitioner rests more on strong ground and we have already come to the conclusion that in view of the reasons stated above the impugned order cannot be sustained and deserves to be quashed. Similarly even though the petitioner has not made any prayer against the Respondent No. 4 -- may be for his removal from the office of the President -- and that he should restored to his original office as President of the Municipal Council, Parbhani, in view of the observations made above together with this Court's interim order passed on 1-11-1994 the petitioner will have to be restored to his original office of the President of the Parbhani Municipal Council as existed before passing the impugned order.
94. Writ Petition No. 3329 of 1994 is filed by the present respondent No. 4. The main relief claimed in the writ petition is to pass mandatory order to the respondent No. 2 District Collector, Parbhani, to convene the meeting of the Parbhani Municipal Council within the period of two weeks for filling in the vacancy of presidentship of the said Council. Admittedly the respondent No. 2, Collector convened the meeting of the Councillors on 2-11-1994 for election of the President of Municipal Council, Parbhani and accordingly, we are told, that the respondent No. 4 came to be elected unopposed as President. As such the Writ Petition No. 3329 of 1994 does not survive and has become infructuous.
95. In the result, the Writ Petition No. 2928 stands allowed. Rule is made absolute in terms of prayer clause (C). We hereby order that the respondents Nos. 1 to 3 shall restore the petitioner to his original office of the President of the Municipal Council, Parbhani, as he was then before passing the impugned order. The respondent No. 4 shall vacate the said office forthwith. We further direct the respondents Nos. I to 3 to comply with this order immediately and to report compliance. We also direct the respondents Nos. 1 to 3 to pay Rs. 10,000/- as costs to the petitioner and shall bear their own in both the writ petitions. Respondent No. 4 shall bear his own costs in both the writ petitions.
Mr. Ghatge, learned Assistant Government Pleader for the respondents Nos. 1 to 3 as well as Mr. S.S. Choudhary, learned Counsel for the respondent No. 4, seeks permission to leave to appeal to the Supreme Court and also seeks stay to the order for a period of six weeks. In the view that we have taken, we do not think that such a request can be granted. The request is rejected.
Petition allowed.