Punjab-Haryana High Court
Jagroop Singh Gill And Others vs State Of Punjab And Others on 1 March, 1995
Equivalent citations: AIR1995P&H303, (1995)110PLR347, AIR 1995 PUNJAB AND HARYANA 303, (1995) 2 PUN LR 347, (1995) 1 CURLJ(CCR) 664, 1995 REVLR 1 397, 1995 PUNJ LJ 166
Author: Swatanter Kumar
Bench: S.P. Kurdukar, Swatanter Kumar
ORDER Swatanter Kumar, J.
1. The petitioners in this writ petition have challenged the Notification dated 9-5-1994 issued by the Governmet of Punjab, Department of Local Government, Chandigarh, superseding the Municipal Commitee (now Municipal Council), Bhatinda, for a period of one year.
2. The relevant facts giving rise to the present petition are that petitioner No. 1 is the President, petitioner No. 2 is the Vice-Presi-dent and petitioners No. 3 to 15 are the Municipal Commissioners of Municipal Committee, Bhatinda, were held on 6th September, 1992. There are 29 members in the Municipal Committee. The petitioners' basic grievance is that there are groups in the Municipal Committee, and the group led by Shri Atma Singh, who has the blessing of the local M.L.A. from that area and who is the Minister in the present Ministery in the State, have persuaded the Government, without any basis and for mala fide reasons,- to issue the Notification in question superseding the Municipal Committee. The further allegation in the petition is that the group led by Shri Atma Singh which was in minority could not break the majority of the group of the petitioners, and has, therefore, adopted this unfair via media to achieve their object, which they have done issuing the Notification dated 9th May, 1994, Annexure P/1 to the petition.
3. Various grounds of attack have been raised in the petition, but the counsel for the petitioners has mainly stressed the ground of violation of principles of natural justice and non-compliance of the provisions of Section 238 of the Punjab Municipal Act, 1911 (hereinafter referred to as the "Act").
4. The respondent have file a detailed counter and their stand is that the Government has taken a conscious decision and formed a considered view that it is necessary in public interest to take immediate preventive steps and ensure safety of municipal records from being tampered or concealed. Therefore, they state to have suspended the Committee.
5. We have heard the learned counsel for the parties at great length, and we propose to decide the petition on the principal contention raised by the counsel for the petitioners and in view of this it may not be necessary to deal with other contentions. Before we deal with respective contention raised by the learned counsels, it will be appropriate to look into the relevant provisions. Sec. 238 of the Punjab Municipal Act, under which the respondents have taken the action and issued the impugned notification (Annexure P-l) reads as under:--
"238. Suspension and supersession of Committee.-- (1) If, in the opinion of the State Government a committee is not competent to perform, or persistently makes default in the performance of, the duties imposed on it by or under this Act or any other law or exceeds or abuses its powers, the State Government, may, by an order publish ed, together with the statement of reasons thereof, in the official. Gazette, declare the 'committee to be incompetent or in default or to have exceeded or abused its powers, as the case may be; and suspend it for such period not exceeding one year as may be specified in the order.
Provided that the State Government may, by notification, for reasons to be specified therein, extend the aforesaid period of suspension, from time to time, for a period not exceeding one year in aggregate.
(2) If, at any time after the expiry of the period of suspension, the committee again acts in the manner referred to in sub-sec-tion(1), the State Government, by a like order, supersede the committee for such period as may be specified in the order.
(3) Before making an order of suspension, or supersession, opportunity shall be given to the committee to show cause why such an order should not be made.
Provided that it shall not be necessary to give such opportunity where it, is not reasonably practical to do so.
(4) When a committee is suspended or superseded by an order under sub-section (1) or sub-section (2).-
(a) in the case of an order of suspension all members of the committee shall from the date of order,' cease to be members during the period of such suspension;
(b) in the case of an order of supersession, all members of the committee shall from the date, of the order, vacate their seats;
(c) all powers and duties of the committee may till the committee remains suspended or is reconstituted, as the case may be, be exercised and performed by such person as the State Government may appoint in this behalf;
(d) all property vested in the committee shall, till the committee remains suspended or is reconstituted, as the Case may be, vest in the State Government.
(e) before the expiry of the period of supersession, election shall be held by the State Government for the purpose of reconstituting the committee."
6. This section has been amended by the State Legislature by the Act, No. 11 of 1994, and has been made effective from 1st of June, 1994.
7. It is the admitted case of the parties that Annexure P-l has been issued on May 9, 1994 and the respondents have specifically-exercised the powers under the said section. The contention of the petitioners is that the allegations stated in Annexure P-l, the impugned notification, are vague, and do not give any particulars. It is submitted on behalf of the petitioners that there is total non-application of mind and there is no justification for the respondents to exercise their authority under proviso to sub-section (3) of Section 238 of the Act. The relevant portion of the impugned Notification, read as follows:---
"(a) The Municipal Committee has failed to implement the revised octroi schedule announced by the Government in October, 1993.
(b) The Municipal Committee has failed to implement the revised Octroi Schedule announced by the Government in January, 1994 in time.
(c) Grave irregularities have been committed by the Municipal Committee in the matter of assessment of house tax of various properties in the town.
(d) The Municipal Committee has failed to enforce rules and bye-laws. Numerous cases of encroachment and unauthorised constructions have gone unchecked. Moreover, there is financial mis-management in the committee.
(e) The Municipal Committee has failed to discharge its primary responsibility of providing civic amenities and proper administration to the town."
The Governmeot has admittedly not furnish ed the copy of the report dated 4th May. 1994 to the petitioners and it also did not call upon the petitioners to show cause in consonance with the provisions of sub-section (3) of Section 238 of the Act, as it stood at the relevant time. The respondents claim to be exercised their power under the proviso to Section 238 of the Act, a bare reading-of the proviso shows that if the Government' is satisfied that it is not reasonably practical to do so, then it may not be necessary for the Government to give an opportunity of hearing.
8. It is a settled rule of law that a proviso is an exception to the rule and cannot be treated as an independent rule in itself. To exercise the powers under the proviso, there is a specific obligation placed upon the Government. The Government must satisfy itself and so record by giving reasons that it is not reasonably practical to give an opportunity of hearing' to the Committee or to the petitioners. Apparently, no specific instances have been given in the Notification and the Notification itself does not show nor, in fact, it is recorded that it was not reasonably practical for the Government to provide an opportunity of hearing to the Committee and/or the petitioners. In the counter-affidavit, there is again not an averment to this, effect. The learned counsel, during the course of hearing, emphatically argued that the court must look into the records to see the reasons in support of the Notification dated 9th May, 1994. In this the learned counsel for the petitioners had raised a serious objection, but without going into this question whether the Court should or should not look into the records, we were shown a file containing the report on the basis of which the Committee has been suspended. The said report did not indicate that the petitioners were given an opportunity of hearing or showing cause against the proposed action. Nor does it record anywhere on the file that the Government is satisfied that it is not reasonably practical to provide an opportunity of showing cause.
9. The right of hearing has attained a definite right in favour of a party against whom an authority proposes to take an action. The Courts have gone to the extent of holding that the principles of natural justice will have to be read into the statutory provisions of law where such provisions do not provide for a right of hearing and its compliance shall be mandatory. Wherever an action of the authority would visit the affected parties with civil and/or pecuniary consequences, the parties have to be given a right of hearing, as settled by the Hon'ble Supreme Court in the case reported as Raj Restaurant v. M.C.D., (1982)3 SCC 338: (AIR 1982 SC 1550). The right of hearing is not a mere formality but is a substantive right by which a party has to be given an effective hearing. To, show cause means the right to be heard in person or by counsel and to have the facts, disclosed to the party which are being used against him. The disclosure of such report or information is an essential ingredient. The right of hearing or showing cause is a safeguard and a protection is to be afforded which must be effective and by a hearing in substance though confined to the matters in issue: see Panna Lat v. State of Delhi, AIR 1954 Punj 251, Messrs Gupta Tobacco v. Collector of Central Excise, 1967 Delhi LT 284 and 1981 Rajdhani LR 52 : (AIR 1981 Delhi 169 (FB).
10. In the present case, there is no dispute to the fact as mentioned by us above that a copy of the report was not furnished to the petitioners, nor they were given any hearing. whatsoever. Nothing has been shown to us, nor any averment is made in the counter-affidavit, which could justify the action of the respondents in taking recourse to the proviso to sub-section (3) of Section 238 of the Act as it stood at the relevant time. Specific application of mind and a reasoned order consisting of plausible reasons is a condition precedent to the exercise of power by the respondents under proviso to sub-section (3). Both these ingredients are missing.
11. Proviso to sub-section (3) of Section 238 of the Act is sufficiently indicative Of the Legislative's intention that satisfaction, should be recorded by the authority concerned before the authority take recourse to the proviso. The satisfaction has to be apparent on the record and must be for good and valid reasons. In the case reported as Union of India v. E. G. Namboodri, (1991) 2 JT (SC) 285 : (AIR 1991 SC 1216) the Supreme Court has laid down the law that even administrative orders affecting rights of the parties should be reasoned orders and specially when the rule so requires. In the present case there is nothing on record to show that the competent authority applied its mind and recorded its satisfaction for valid and good reasons for invoking the powers vested in it under the said proviso.
12. In the recent development of law by judicial pronouncements, the parameters of judicial review of orders of quasi-judicial nature have equally applied in spirit and substance to administrative orders. In a very recent judgment pronounced by another Division Bench of this Court titled as Niran-jap Dass, President, Municipal Committee Patiala, Punjab v. State of Punjab, C.W.P. No. 10137 of 1994, the provisions of Section 238 of the Act have been considered and a Notification issued suspending that Committee has been quashed by the Court somewhat in similar circumstances.
13. We cannot lose sight of the fact that the Committee and the petitioners are an elected body. The body has been elected in accordance with the provisions of Punjab Municipal Act and their tenure as prescribed under law is five years. The right of effective hearing in the event of suspension or supersession of the Committee have now even been constitutionally recognised by the amendment of Article 243-U of the Constitution of India. The amended provisions of the Constitution do not provide for any proviso like the one which existed in proviso to subsection (3) of Section 238 of the Act. Even the Punjab Municipal Act, 1911 (Act No. 11 of 1994) has omitted Section 238 of the Punjab Municipal Act, 1911, and Sections 13 and 14 of the said Act have been amended so as to make it in consonance with the provisions of the Constitution of India as enunciated under the provisions of Article 243U of the Constitution. The omission of Section 238 of the Act in the entirety and the intention of the Legislature, as is clear from Sections 13 and 14 of the Amended Act, clearly indicate that heavy onus was laid on the respondent/Government to show effective and proper compliance of the conditions precedent to the exercise of power under the proviso to subsection (3) of Section 238 of the Act.
14. From the above discussion, we find that the Notification (Annexure B-l to the petition) is liable to be quashed as a copy of the report dated 9th of May, 1994 was not furnished to the petitioners/Committee before passing the impugned Notification, it violates the principles of natural justice, is vague and does not give any definite details or particulars of the alleged violations, and the respondents have neither averred nor shown any record to us where the concerned authority has recorded its satisfaction on the circumstances and reasons for not providing adequate opportunity to the Committee or the petitioners before issuing the Notification.
15. In a recent judgment in S. R. Bommai v. Union of India,(1994)2JT(SC)2l5: (1994 AIR SCW 2946) the majority view of the Supreme Court has held that if the proclamation issued is held invalid, then notwithstanding the fact that it is approved by both the Houses of Parliament, it will be open to the Court to restore the status quo ante to the issuance of the proclamation, and, hence to restore the Legislative Assembly and Ministry.
16. In view of the above discussion, we allow the writ petition and quash the Notification (Annexure P-l to the petition) dated 9th May, 1994 and restore the status quo ante, prior to the issuance of Notification dated 9th May, 1994. However, the respondents will be at liberty to take such action as is permissible to them in law, now in force.
17. No orders as to costs.
18. Petition allowed.