2002 Supreme(Bom) 694

IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
R.G. Deshpande P.S. Brahme, JJ.
Rameshchandra Shankarlal Saboo .... Petitioner.
Versus
State of Maharashtra through Secretary others.... Respondents.
Writ Petition No. 3265 of 2001, decided on 16/17-7-2002.
Advocates appeared :
S.R. Deshpande, for petitioner.
T.R. Kankale, A.G.P., for respondent No. 1.
Smt. A. Joshi, for respondent No. 4.
N.W. Sambre, for respondent Nos. 6 to 8.
Abhay Sambre, for respondent No. 9.

Headnote:Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 - Section 49 and 55-A - Removal of President/Vice-President. - Since conduct of petitioner/President who unauthorisedly disposed land reserved for development of Nagar Parishad amounts to misconduct hence President can be removed under Section 55-A for such misconduct even without holding of any type of enquiry. [Dr. Ramesh Chandra Shankarlal Saboo v. State of Maharashtra, 2003 (1) All MR 118: 2003 (1) Bom CR 126 (NB)].

        - Sections 52(2)(b)(c), 40, 41 and 41-A - Ending of tenure of President - President appointed for a term of two years - Whether his tenure will co-terminate with expiry of council - Held - As by the time President is appointed the council had completed more than two years therefore this case would fall under Section 52(2)(c) and not under Section 52(2)(b) - Hence his tenure would end at ending of council. - In the case on hand, clause (c) and not clause (b) of sub-section (2) of Section 52 would apply. Clause (b) will be attracted in those cases where the councils have completed the first year of their term but not completed two years since their first meeting after the general elections. Clause (c) will cover all other cases. In the present case, election of Trimbak Municipal Council was held in 1997 and the first meeting was convened in December, 1997. Thus, it has already completed two years. Clause (b), hence, cannot apply. Therefore, clause (c) would be attracted which provides that if the case does not fall either under clause (a) or under clause (b), it would be dealt with under clause (c). Since first meeting of the council was held on 16th December, 1997, it can continue no longer than five years as per the mandate of the Constitution, i.e. after December 15, 2002. Hence, the petitioner cannot be allowed to remain in office upto April, 2003 as contended by him

       Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 - Section 55-A - Removal of President - Meetings due not held in time - President s plea that necessary documents were not given to him - Held - It was for petitioner to seek the documents when he had already received a notice - Whatever documents were seen necessary were supplied - Petitioner cannot say that he was not given a chance of hearing - No violation of natural justice. - As per the show-cause notice the petitioner was specifically informed that, if at all after receipt of the show- cause notice, the petitioner wanted any documents in that respect, he should have asked for the same in writing and should have obtained the same within 10 days of the receipt of that show-cause notice and thereafter within 10, days he was supposed to file his reply to the show- cause notice. It is further made clear in the said show-cause notice that only relevant and concerned documents would be supplied to the petitioner and irrelevant documents or the documents which were not required for his defence would not be given to him. The petitioner was also informed by show-cause notice that if at all he wanted to have personal hearing, he should inform the concerned respondent in writing in that respect. Keeping in view that, the relevant documents were either given to the petitioner as per his demand and whatever information was sought for which was relevant for the purpose of the case was also supplied to him, merely because certain alleged documents were not supplied to the petitioner, would not mean that the petitioner was not afforded a reasonable opportunity to defend himself. So far as regards the conduct of the matter was there, the petitioner was given due hearing and therefore, the contention of Shri Deshpande, counsel for the petitioner that principles of natural justice are not observed, cannot be accepted in the facts and circumstances of the case.

       Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 - Section 55-A - Removal of President/Vice- President by Government. - Where relevant documents given to petitioner as per his demand to defend then merely because of non-supply of certain alleged document would not mean that petitioner not given reasonable opportunity to defend.

       Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 - Section 55-A - Removal of President/Vice-President by Government. - Where Chief Officers were not attentative towards instructions of petitioner/ President, it reflected upon inefficiency of President to look therefore by shifting responsibility President cannot escape from his responsibility.

       Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 - Sections 55-A and 55-B - Removal of President - Six years debar from contesting election - Notice necessary under Section 55-A to oust him from post of President - By notice under Section 55-A, no action under Section 55-B can be taken - New President elected - Municipal council free to take appropriate action - President ousted cannot remain even a councillor. - Section 55-B is a non obstante clause, it starts with the words notwithstanding anything contained in Section 55-A, that clearly means action under Section 55-B has to be treated as an independent action and it would empower the State Government to remove a person concerned even from the councillorship itself and further disqualify him for next 6 years from contesting election. If the show-cause notice issued in this case specifically calls upon the petitioner as to why action under Section 55-A should not be taken against him, then merely by making a reference in the last paragraph of the show-cause notice and that too observing that if action contemplated under Section 55-A is not completed before the expiry of his term of Presidentship or Vice- presidentship, then action under Section 55-B would be continued against him, this could be said to be a vague notice, so far as regards the action under Section 55-B is concerned. It is brought to notice that after the order was passed by the State Government fresh elections were held so far as regards the vacant post of councillorship was there, which occurred because of the removal of the present petition. No doubt the petitioner had requested for staying that election, however, the Court did not stay the election by its order dated 24.4.2002, but it was also specifically directed by that order that the result of that election was subject to the final decision of this petition. In view of this, it is for the respondent Municipal council to take appropriate action in the matter in view of the judgment. It is brought to notice that the term of the present petitioner, in ordinary course, is to expire in the year, 2005 and therefore, till that period expires, present petitioner cannot cease to be a councillor though he ceases to be a President

       Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 - Sections 55-A and 81(1) - Removal of President - Failed to hold regular meetings - Plea that the Chief Executive Officers were removing quickly and they did not co-operate with him - Held - Chief Executive Officer always attended meeting whenever he was invited - His removal cannot be said to be illegal. - While scanning argument of Shri Deshpande one thing is apparent that if at all there were any defects so far as regards to the calling of the meetings were concerned, it is not open for the President to escape from his own responsibility. If the Chief Officer was not acting as per either the directions and requests of the President, it was yet open for him to have approached the higher authorities, if the lower authorities were not attentive towards his complaints. Shri Deshpande during the course of arguments contended that it was nothing but a political vengeance and it was at the instance of the political parties, that the Chief Officers were not co- operating with the President. Though apparently it may appear to be a considerable reason, Court is not much impressed by this argument, as if the position was such that the Chief Officers were not even attentive towards the instructions and directions of the President of the Municipal council, that definitely reflects otherwise, i.e. inefficiency of the President to work. In just by shifting the responsibility on the Chief Officer, the President cannot escape from his responsibility. As regards the alleged meetings are concerned to which a reference is made above, it is absolutely clear that even assuming for the sake of arguments that the petitioner was suffering from some heart ailment, however, the facts as are obtained on the record clearly indicate that, prior to the relevant dates the petitioner had already undergone treatment for his ailment and therefore, he could hold the first meeting on 3.5.2000. During his tenure in ordinary course he could have conducted four meetings, but factual position is that he conducted only three meetings.