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Madhya Pradesh High Court · body

1999 DIGILAW 547 (MP)

Narendra Kumar Jain v. State of M. P.

1999-08-03

D.P.S.CHAUHAN

body1999
ORDER 1. The Municipal Council Lakhnadon was superseded and in exercise of the power under Clause (b) of sub-section (6) of section 328 of the M.P. Municipalities Act, 1961 (for brevity, hereinafter referred to as 'the Act'), the Administrative Committee was appointed by the State Government comprising of 7 persons by Notification No. F-l (46)-85-1-XVIII-I dated 21st June, 1985. Out of these, one was the Chairman and six were Members. This notification was contrary to the provision of law, which confers authority on the State Government. The relevant provision as contained in Proviso (a) to sub-section (6) of section 328 of the Act is as extracted below: "(i) in place of Administrator, the State Government may appoint an Administrative Committee consisting of Chairman, Vice-Chairman and such number or members as it may deem fit, but the total number of such member including Chairman and Vice-Chairman shall not be more than five;" Apparently the constitution of this Committee was not in accordance with the law. The appointment of the Committee was for the duration till fresh Council is constituted. The petitioner was one of the members of the said Administrative Committee nominated by the State Govt. on 27.6.1988 passed an order terminating his membership of the said Administrative Committee. This order is Document No.9 to the petition. 2. The power was exercised by the State Govt. under Clause (d) to sub-section (6) of Section 328 of the Act. This order is under challenge before this Court. 3. The Administrative Committee and its members were nominated persons and the term mentioned in the aforesaid notification was till the Council is re-constituted. It is not the case of the petitioner that the council has not been re-constituted so far. The order is of 1988. The petition is being decided in 1999. Apart from this, the petitioner has no right in himself as the life of the nominated person is at the pleasure of the authority, who has made nomination. No independent right is given to him by the statute and the statute has not provided for any term. 4. In view of above, the writ petition has become infructuous so far as Document No.9 is concerned. 5. The State Govt. the same day passed the order dated 27.6.1988, which is Document No. 10 to the petition, whereby the State Govt. 4. In view of above, the writ petition has become infructuous so far as Document No.9 is concerned. 5. The State Govt. the same day passed the order dated 27.6.1988, which is Document No. 10 to the petition, whereby the State Govt. directed the Chief Municipal Officer, Municipal Council, Lakhnadon that in regard to corruption in purchase of iron in the month of July 84 in the Nagar Palika Lakhnadon the recovery be made from the petitioner, the Member of the Nagar Palika and the compliance of the order was directed within a period of a fortnight. The recovery was directed on the basis of Audit Objection No. 27 for the year 1984-85 whereunder liability of a sum of Rs. 2,100/- was shown against the petitioner and the petitioner was required to deposit the said amount in the office and obtain the receipt of the same. In the event of failure to deposit the said amount, the proceedings shall be taken against him under Chapter VIII of the Act. 6. Learned counsel for the petitioner is not prepared with the case and has not looked into the provision of law which is applicable to his case. It is not fair to the Court that the counsel comes to the Court without preparation of the case and without bringing books with him. However, the only submission advanced was that the impugned orders dated 27.6.1988 (Documents No.9 and 10 to the petition) were passed by the State Govt. in violation of principle of natural justice as the petitioner was not given any opportunity of hearing by the State Govt. The relevant paragraph is paragraph 16 of the petition, which is as extracted below: "16. Before issuing the aforesaid memos (Documents 9 and 10), the State Government did not issue any memo to the petitioner, no enquiry was made and no opportunity of being heard was given to the petitioner. Straightway the State Govt. took decision as if the petitioner had taken any illegal gratification or had damaged to the council, without following the principles of natural justice, without giving any opportunity of being heard to the petitioner. The letter dated 27.7.1988 issued by the Chief Municipal Officer in pursuance of the aforesaid memos Documents Nos. 9 and 10 came to the petitioner as bolt from below." 7. The letter dated 27.7.1988 issued by the Chief Municipal Officer in pursuance of the aforesaid memos Documents Nos. 9 and 10 came to the petitioner as bolt from below." 7. The State Government has not filed any reply rather a reply has been filed on behalf of respondents No.3, 4 and 5 and in paragraph 18 thereof it is stated that the averments made in paragraph 16 of the petition are denied. As submitted above there is no question of issuance of show cause notice. 8. Learned State Counsel submitted that the order was passed under section 315 of the Act. Section 315 of the Act is as extracted below: "315. Damage to Municipal property how made good. -- If through any act neglect or default, on account whereof any person shall have incurred penalty imposed by or under this Act, any damage to the property of a Municipality shall have been caused by such person, he shall be liable to make good such damage as well as to pay such penalty and the amount of damage shall, in case of dispute on the application, in writing, to the Chief Municipal Officer, be determined by the Court by whom the person incurring such penalty is convicted; and on non-payment of such amount on demand the same shall be levied by distress and such Court shall issue the warrant accordingly." It does not authorise the State Government for passing such order. It was for the Municipal Council who could have taken steps or could have initiated proceedings against the petitioner under Chapter XI of the Act. In compliance of the audit objection, if any, action was required to be taken, then an order in that regard could have been passed by the Municipal Council. Learned counsel for the petitioner submitted that, if any, dispute is raised in regard to the liability, then, the application has to be made, in writing, to the Chief Municipal Officer and on that application the Court to determine the liability. Learned counsel further submitted that if any objection is filed by the petitioner, then it is for the Chief Municipal Officer to refer the matter to the Court. The petitioner is not supposed to go under this provision straightway to the Court. 9. Learned counsel further submitted that if any objection is filed by the petitioner, then it is for the Chief Municipal Officer to refer the matter to the Court. The petitioner is not supposed to go under this provision straightway to the Court. 9. I am not settling legal position under the provision of the Act since the order passed by the State Government suffers from the basic infirmity as it was passed in violation of principles of natural justice. The order dated 27.6.1988, Document No. 10 to the petition, deserves to be quashed. 10. In the result, the writ petition, so far as it relates to prayer for quashing the order dated 27.6.1988, Document No.9 to the petition, whereby the petitioner has been removed from the membership of the Administrative Committee under section 328 of the Act, is rendered infructuous and the petition qua this relief is dismissed. So far as the relief relating to the order of the State Government fastening liability on the petitioner vide order dated 27.6.1988 is concerned, the writ petition qua this order succeeds and the order dated 27.6.1988 is hereby quashed. In the circumstances, no order as to costs. Security amount, deposited if any, may be refunded.