Back
High Court Of Madhya Pradesh
A. P. Sen and G. P. Singh, JJ.
SURESH SETH - Appellant
Versus
STATE - Respondents
Misc. Petn. 330 Of 1968
Decided On : 01/31/1969
(2) Municipal Corporations Act, 1956 (M. P.) - S. 422 (I) - word 'competent' - import of.
(3) Words and phrases-word 'competent'-meaning of.
The word 'competent' may no doubt be used to signify the sense of being legally qualified, but is not the only sense in which this word is used.
A public authority is not competent when it is not possessed of knowledge, judgment, strength, ability or skill needed to perform the duties imposed on it. It is in this sense that the word 'competent' has been used in section 422 of the Act. A duly elected Corporation is always legally qualified to perform its duties and if the word 'competent' means legally qualified then in no case the power under section 422 of superseding the Corporation on the ground that it is not competent to perform its duties can ever be exercised. It is, therefore, clear that the word 'competent' in section 422 does not refer to the legal qualification of the Corporation, but to its skill or ability in performance of its duties.
[Para 11]
(4) Municipal Corporations Act. 1956 (M.P.) - S. 422-nature of the power-is quasi-judicial-opportunity to show cause-import of-inquiry report used against the Corporation in passing order of supersession-copy should be given to the Corporation to explain it -oral hearing-when not necessary.
(5) Words and phrases -phrase ‘opportunity to show cause’-import of.
The power conferred by section 422 of the Act to supersede a Corporation is quasi-judicial. 1964 AC 40 (NL) relied on. AIR 1959 SC 107, AIR 1967 SC 1333 and AIR 1967 SC 1398 referred to. [Para 15]
A preliminary enquiry was held against the Corporation by the Commissioner Indore Division and .he report submitted by him was against the Corporation. This report led to the formation of charges and issue of show cause notice. After the explanation of the Corporation was received, there was no further inquiry. The inquiry report was an important material, which was taken into account by the Government in taking action against the Corporation. In fairness, therefore, the Corporation should have been furnished with a copy of that report. The non-disclosure of this adverse report, necessarily resulted in denial of adequate opportunity to show cause.
It cannot be disputed that the "opportunity to show cause" contemplated by section 422 of the Act must be a reasonable opportunity and not a bare formality and all adverse material to be used against the corporation must be disclosed.
Oral hearing is not an essential attribute of natural justice. 1915 AC 120 relied on.
Whether the opportunity to show cause sh0uld be by written representation or by personal hearing depends on the facts of each case and ordinarily it will be in the discretion of the tribunal or authority passing the final order. It was, therefore, open to the Government to refuse the request of Corporation for an oral hearing. AIR 1966 SC 671 and 1950 SCR 88 relied on. [Para 16]
(6) Municipal Corporations Act, 1956 (M.P.) – S. 422-order of supersession - must state reasons for the order-nature of the reasons.
The power under section 422 is not purely administrative, but quasi-judicial in nature. An order of supersession cannot be made before the Corporation is given an opportunity of showing cause which implies that cause shown by the Corporation should be duly considered before making the order. In this context, the further requirement that the reasons for making the order shall be stated, must be understood to mean that reason for rejection of the explanation of the Corporation must also be stated. The statutory requirement of stating the reasons is not satisfied simply by narrating the charges and the opinion of the Government that the explanation of the Corporation bas failed to meet the charges. (1963) 1 All. ER 612, (1964) 1 QB 395 and AIR 1962 SC 1694 relied on.
The Corporation is entitled to know for what reasons the representation submitted by it in opposition to charges is rejected by the Government. The reasons stated must therefore, deal with points of fact and law raised in the representation. [Para 18]
(7) Municipal Corporations Act, 1956 (M. P.) - S. 244-order defective because no fair opportunity to show cause given and no reasons stated in the order-order is void.
(8) Administrative order-are either valid or invalid-concept of voidable order not correct.
The order of the Government in superseding the Corporation suffers from two defects. the Corporation was not given a fair opportunity to show cause before the order was made and the reasons for making the order were not stated. For these two defects the order was a nullity or void,
Acts of public authorities are either lawful and valid or unlawful and valid. That is why 'voidable' has never played a part in administrative law and should play no part. (1967) 2 AC 357 dissented from. 1964 AC 40 (NL), AIR 1967 SC 1269 & AIR 1962 SC 1694 relied on. [Para 19]
(9) Municipal Corporations Act, 1956 (M. P.) - S. 244-order of supersession of the Corporation made-a Councillor may challenge the order-Constitution of India – Art. 226.
(10) Constitution of India-Art. 226-party aggrieved- Corporation superseded - Councillor made to retire may challenge the order-Municipal Corporations Act, 1956 (M. P.) - S. 244.
A Councillor who is made to retire by the order of supersession before expiry of his term, has "agrievance of his own" and fulfills the character of an "aggrieved party".
When after order of super-session immediate effective control is taken over by an Administrator appointed by the Government, it is practically impossible to take steps at the instance of the Corporation to challenge the order. It would not be a sound exercise of discretion under Article 226 of the Constitution to refuse interference at the instance of a Councillor. [Para 19]
( 1 ) THE petitioner by this petition under Article 226 of the Constitution seeks a writ in the nature of certiorari for quashing an order of the State Government passed on 23rd April, 1968 under Section 422 of the Madhya Pradesh Municipal corporation Act, 1956 superseding the Municipal Corporation Indore for a period of one year with effect from 23rd April, 1968.
( 2 ) THE last elections to the Corporation were held in February, 1965 in which the petitioner was elected as a Councillor on the Congress ticket for ward No. 31. Had the Corporation not been superseded, the petitioner and other Councillors would have ordinarily continued in office till March, 1969.
( 3 ) ON 20th December, 1967 the State Government proposed to supersede the corporation and issued a notice to it to show cause why an order retiring all the councillors and superseding it for one year should not be passed. The action proposed was based on the following three charges:
" (1) That on 29-8-1967 the Corporation was to take up no confidence motion against the Mayor but the Councillors created disturbance and pandemonium. Police had to rush to the spot to restore order. The action of the Councillors was not worthy of the office held by them and was not in the interest of the Corporation; (2) That the Corporation met frequently to pass the budget but instead of passing budget the Councillors engaged themselves in acts of indiscipline as a result of which meetings were adjourned without transacting the business included in the agenda. This shows incompetence of the Corporation to carry out its duties; and (3) That Indore City faced an unprecedented scarcity of water during the summer of 1966 on account of failure of monsoon. The scarcity continued in the year 1967 also, but in a less aggravated form. To tide over this scarcity the Indore Municipal Corporation and the P. H. E. Department of the State Government made various efforts to exploit new sources of water. Wells and tubewells were dug and pumps and pipe lines fitted wherever possible. The amount of money spent in the process by the Corporation was disproportionate to the quantity of water procured from those sources. "
( 4 ) THESE charges were accompanied by a statement in which allegations pertaining to each charge were separately stated. In answer to the show cause notice, the corporation submitted its representation which ran into 37 pases. The charges were denied and explained and request was made for supply of complaints and inquiry report against it, and for opportunity of oral hearing.
( 5 ) AFTER receipt of the representation made by the Corporation, the State government passed the impugned order on 23rd April, 1968. The order recites the fact that the Government issued a show cause notice to the Corporation and reproduces the three charges that we have already set out and then runs as follows:
"the State Government after carefully considering the explanation furnished by the said Corporation in regard to the above charges is of the opinion that the said Corporation has failed to meet the charges satisfactorily. The State Government accordingly finds that the charges have been fully established. The State Government are, therefore, satisfied that the said Corporation has committed illegalities, irregularities and omissions and it is not competent to perform the duties imposed on it by or under the Madhya pradesh Municipal Corporation Act, 1956 (No. 23 of 1956 ). The State Government, therefore, in exercise of the powers conferred by subsection (1) of the Section 422 of the Madhya Pradesh Municipal corporation Act, 1956 hereby- (i) Direct that all the Councillors shall with effect from the 23rd april 1968 retire from office; and (ii) declares that the said Corporation shall stand superseded for a period of one year, with effect from the 23rd April, 1968. "
( 6 ) SECTION 422 of the Madhya Pradesh Municipal Corporation Act, 1956 under which the order of supersession was passed, and other connec
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
