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1976 DIGILAW 179 (KAR)

MUNILINGIAH v. DIVISIONAL COMMR, BANGALORE DIVN

1976-10-21

D.S.TEWATIA, SRINIVASA IYENGAR

body1976
TEWATIA, J. ( 1 ) THE petitioner was elected President of the Town Municipal Council, kanakapura, on May 9, 1974, for a term of four years. The Town Municipal council passed a resolution on 16-10-1974 limiting the term of the president for one year. The Government granted approval to that resolution by its order dt. 21-2-1975. Legality of rthe said resolution and of the G. O. was challenged in this Court in WP. 2305 of 1975. A Division bench of this Court, by its order dt. 7th July 1975, quashed the said resolution as also the order of the Govt dt. 21st Feby, 1975 passed under Section 42 (11) of the Karnataka Municipalities Act, 1964 (hereinafter referred to as the 'act' ). ( 2 ) THE Divisional Commissioner, Bangalore, served upon the petitioner a notice (Ext. B) dt. 20th August 1975 along with the report of the Deputy commr (Ext. A) dt. 13-8-1975, calling upon him to show cause as to why he should not be removed from the Office of the President, Town Municipal council, Kanakapura, on the charges of 'misconduct, negligence and incapacity' 'to discharge his duties as President of the said Municipal council. The petitioner submitted his explanation (Ext. C) to the said notice. ( 3 ) THE Divisional Commr, Bangalore, exercising the delegated powers of the Govt under S. 42 (10) of the Act found all the charges listed in the report of the Deputy Commr (Ext. A) dt. 13-8-1975 as having been established, and ordered his removal from the Office of the President of the said Municipal Council, as also from the Office of 'the Councillor (vide order Ext. D dt. l5-10-1975 ). The legality of this order has been challenged by the petitioner in this Court on the writ side. ( 4 ) THE learned Counsel for the petitioner has taken us through the petition, the charges contained in Ext. A, the show-cause notice Ext. B, his explanation Ext. C and the impugned order. The petitioner's contention, which has been reiterated by his Counsel, is that the charges levelled against him were vague, frivolous, that they did not relate to the discharge of his duties as President, but pertained to the duties that are to be discharged by the Council collectively or the Chief Officer of the municipality; that the said charges had been levelled against him for mala fide reasons in order to. achieve what they could not achieve by the resolution dt. 16-10-1974 and the order dt. 21-2-1975 which had been quashed by the High Court, and that the Deputy Commr (Respt-7) was inimical against him as he had initiated against him contempt proceedings on account of his having disobeyed the stay orders of the Court regarding the delivery of the charge of the Office of the President which the petitioner was holding. ( 5 ) MR. Chandrakanthraj Urs, learned Counsel for the respondents, has stated at the Bar that he would seek this Court's decision only on Charge no. II (v) in Ext. A and do not press the other charges. Since the learned counsel for the State has attemped to sustain the impugned order only on Charge No. II (v) under the heading 'neglect or Incapacity to perform his duties', it is unnecessary to go into either the allegations of mala fide or take note in this judgment of the other charges against the petitioner, his explanation thereto and the findings of the Divisional Commr thereon, for it would suffice for the decision of the narrow issue to notice only charge No. II (v), the explanation of the petitioner thereto and the decision of the Divisional Commissioner thereon. ( 6 ) CHARGE No. II (v) is in the following terms :"he has deliberately failed to conduct meetings regularly as required under S. 47 of the Karnataka Municipalities Act 1964, and there was no meetings at all from 29-3-1975 till 6-8-1975. "the petitioner's explanation to the said charge is in the following words :" Regarding the allegation No. (v) there were Writ Proceedings in the High Court during that time and as there were no subject matters moved by anybody for calling up the meeting, the meeting was not called. " ( 7 ) THE Divisional Commr's finding regarding the said charge which he listed as Charge No. 10 and on Charge No. II (vi) which he listed as charge No. 11 (the latter charge pertained to the petitioner having not convened sub-commitee meetings and this charge not been pressed by the Counsel for the State), is found in para 15 of his order which is extracted below :" With regard to Charge Nos. 10 and 11, the reply furnished that there were writ proceedings and therefore no subjects to discuss to held meetings is not convincing. 10 and 11, the reply furnished that there were writ proceedings and therefore no subjects to discuss to held meetings is not convincing. In fact the Councillors wanted to conduct meeting but the President has not convened the meetings for which a severe notice is called for. These charges are definitely proved. In fact as could be seen from the inspection minutes of the deputy Commr no meetings are held during August 74, Novr and decr 74, Feby 75, April and July 75 and as per S. 47 of the Karnataka municipalities Act 1964, the Municipal Council shall meet at least once a month to transact its business. Inspite of this provision, the President has not conducted the meetings and this has resulted in non-execution of civic amenities and improvement works in the town I, therefore, hold that the President has miserably failed in the discharge of his duties and is persistently remiss in the due discharge of his duties. " ( 8 ) FROM the contents of para 15 reproduced above it would be clear that the Divisional Commr held the said charge as established for he found; that the meetings were not held by the petitioner although there was business to be transacted and although the Councillors wanted the meetings to be held. ( 9 ) IT has been argued on behalf of the petitioner that since there was no charge either to the effect that although there was business to be transacted, yet no meeting was held, or regarding the fact that although the Councillors had wanted the convening of a meeting even then no meeting was held, so the petitioner had no opportunity to meet those allegations and thus the impugned order of the Divisional Commr finding the petitioner guilty of Charge No. II (v) for the aforesaid reason is clearly vitiated as having been passed in violation of principles of natural justice. ( 10 ) MR. Chandrakantharaj Urs, learned Counsel for the State, has, on the contrary, firstly maintained that inasmuch as reference had been made to S. 47 of the Act in the charge, the charge should be taken as comprehensive and the one, giving the petitioner full notice of the charge that he had to meet and secondly urged that in order to establish non-compliance of the provisions of S. 47 of the Act, it is enough to. show that no meeting had been held in a particular month. We are of the opinion that the contention advanced on behalf of the petitioner has considerable merit. ( 11 ) SECTION 47 (1) of the Act which is relevant reads :" 47 Meeting.- (1) The Municipal Council shall ordinarily hold at least one meeting in every month for the transaction of business, which shall be called an Ordinary General Meeting. "as for the question as to whether the provisions of S. 47 required the holding of at least one meeting every month whether there was any business to be transacted or not, there cannot be two opinions about the tact that when a meeting of the Council is held it results in expenditure to the Municipality and the Municipal Councillors do not meet just to see each eithers face. They have to meet to transact business and when there is no business to be transacted, the question of calling a meeting does not arise. So the primary question that should be considered is whether the meetings were not held inspite of there being business to be transacted. ( 12 ) IF the charge had been that the petitioner failed to hold meetings during the period in question although there was some business to be transacted (and that business had been mentioned in the charge), or that the Councillors wanted some business to be transacted (and the business to be transacted had been mentioned in the charge), then, in that case, the petitioner would have had full notice of the case against him that he had to meet. But such is not the case here as would be clear from the perusal of the charge in question. ( 13 ) FOR the reasons stated, we have no hesitation to hold that the impugned order is vitiated as having been rendered in violation of the principles of natural justice. Accordingly, the same is quashed. As a consequence of this order, the petitioner would have to be reinstated as President of the Town Municipal Council, Kanakapura. ( 13 ) FOR the reasons stated, we have no hesitation to hold that the impugned order is vitiated as having been rendered in violation of the principles of natural justice. Accordingly, the same is quashed. As a consequence of this order, the petitioner would have to be reinstated as President of the Town Municipal Council, Kanakapura. At this stage it has been urged on behalf of Respondent-6 that since during the pendency of this petition, election to the Office of the President had been held as the High Court had declined to stay the election, the restoration of the petitioner to the office would mean the exit of Respondent-6 from that office which by implication would tantamount to the setting aside of his election to the said office and the same cannot be done in this collateral proceeding, for his election can be set aside only by filing a petition before the competent authority who is the District judge, so despite the quashing of the impugned order whereby the petitioner was illegally removed from the office of the President, he cannot be restored to that office. In support of the above contention, he placed reliance on the observations of the Supreme Court in Manhoo Mal v. Hira Mal, AIR. 1975 SC. 2140. The facts in that case were that the election process for electing a person for the office of the President, Municipal Board, Soron, was challenged in the High Court by the petitioner in that case on the ground that the election was being held in violation of certain rules. He had sought stay of the election, but stay was not granted. Eventually the election took place and the President was elected. He amended the petition and impugned the election of the President and that is how the question in that case arose as to whether the election of the President could be challenged on the writ side when statutory remedy was provided by the Statute. Their Lordships answered the said question with the following observation :" We axe of the opinion that the whole approach of the learned judges of the High Court to this problem was mistaken. Their Lordships answered the said question with the following observation :" We axe of the opinion that the whole approach of the learned judges of the High Court to this problem was mistaken. After the decision of this Court in N. P. Ponnuswami v. Returning Officer, namakal Constituency ( (1952) 3 SCR 218= air 1952 SC 64 ) there is hardly any room for Courts to entertain applications under Art. 226 of the Constitution in matters relating to elections. " ( 14 ) THE ratio of the aforesaid Supreme Court judgment is not a,t all attracted to the facts of the present case. In the present case the petitioner is not challenging the validity of the election of respondent-6 as such respondent-6 has a right to continue in the office only if the office chair is vacant. The petitioner through this writ petition has merely sought to establish that he had a right to occupy that chair and that he had been wrongly evicted from that office. If he establishes that right, then the order recognising that right has to be given effect, with the result that respondent-6 shall have to vacate the office in consequence of the order of this Court declaring that the order by which the petitioner had been removed from the office was illegal. ( 15 ) WHAT is required of a petitioner in such circumstances is merely to implead the person who in his absence had been occupying the office from which he was wrongly removed. That is done not for the purpose of challenging the election of such person but to see that he obeys the order of the Court for, if he is not a party, the order of the Court would not be binding on him. ( 16 ) IN view of the above, we hold that the petitioner is entitled to be restored to the office from which, by virtue of the impugned order, he was removed. He shall have his costs from respondent-1, the Divisional commissioner, Bangalore. At this stage the learned Govt Advocate urged that since the petitioner had not pressed the allegations of mala fides against the Deputy commr who had been impleaded as a party to the petition as Respt-7 only on account of allegations of mala fides against him, so the petitioner be directed to pay costs to Respt-7. At this stage the learned Govt Advocate urged that since the petitioner had not pressed the allegations of mala fides against the Deputy commr who had been impleaded as a party to the petition as Respt-7 only on account of allegations of mala fides against him, so the petitioner be directed to pay costs to Respt-7. We do not think the learned Govt advocate is right in his submission. The Petnr's Counsel had taken us through the allegations of mala fides against the Deputy Commr and we have purposely refrained from dealing with them, as already observed earlier in this judgment, for the reason that ithe petition could be disposed of on the limited ground of the Govt Advocate restricting himself to ground No. 5 for sustaining the impugned order. Hence, in the circumstances, the request of the learned Govt Advocate is clearly untenable and therefore we hold that the Deputy Commr Resp. t-7 is not entitled to any costs. ( 17 ) BEFORE parting with the judgment, we might advert to the request made by Mr. Urs learned Govt Advocate, that an observation to the effect be made in the judgment that the Govt would be entitled to re-frame charge No. 5 and serve upon the petitioner along with a fresh notice. We do not think any such observation is called for. If the Government is entitled in law to follow that course, they can do so. A copy of the judgment may be delivered to the Government Advocate soon after the judgment is ready. --- *** --- .