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2000 DIGILAW 637 (KAR)

GOWRAMMA v. STATE OF KARNATAKA

2000-09-11

V.GOPALA GOWDA

body2000
GOPALA GOWDA, J. ( 1 ) THE petitioners who are the President, Vice-President and members of the 3rd respondent-City Municipal Council have challenged the legality and validity of the order o1 Supersession passed by the first respondent dated 9. 5. 2000 as per Annexure-Q in exercise of its powers under Section 316 of the Karnataka municipalities Act, 1964 (for short 'kmc Act' 1964) and appointing the 2nd respondent as the Administrator in the place of the elected body of the third respondent council in exercise of Its power under section 3l5 (1) (b) of the Act for a period of six months which was published in the Special Gazette dated 25. 5. 2000 and have sought to quash the same urging various facts and legal contentions. ( 2 ) CERTAIN relevant facts which are necessary for the purpose ofconsidering the rival contentions urged by the learned Counsel appearing for the respective parties are stated hereunder petitioners had filed W. P. No. 38182/99 seeking for Issuance of a writ of certiorari to quash Annexure-D dated 9. 12. 1998 Issued by the first respondent urging various legal grounds. This Court vide its order dated 7. 2,2000 after hearing the parties passed the following order"ii) Since Mr. Patil, is agreeable to depute only two but of the petitioners for a personal hearing, before the authority concerned, i direct that the persons so deputed/ nominated by the petitioners shall appear before the Secretary to Govt. Department of Housing and Urban Development on 28. 2. 2000 at 10. 30 a. m. to the morning for a hearing on that date or on such Other date to which the same may be adjourned. In case the petitioners fail to appear through their duty authorised representatives as indicated above, on the date and the time given, no further opportunity or intimation need be given or issued to them. (iii) The Government shali issue a notice to the Council indicating the, date fixed for the personal hearing, (iv) The implementation of the order of supersession, If the government eventually decide to pass one, shall remain stayed for a period of two weeks from the date of the order during which time the petitioner shall have the liberty to seek such redress as may be legally open to them, All other contentions are left open. "thereafter, the first respondent, represented by its Secretary heard the representatives of the petitioners and the 3rd respondent-Town municipal Council and h. as passed the impugned order as per annexure-Q. The main grounds urged in questioning the correctness and legality of the impugned order are that the same is contrary to the law laid down by the Apex Court and this Court and the provisions of the KMC Act, 1964 required to be followed at the time of passing the order; that there is no evidence on record before the first respondent to record the findings holding that out of 20 charges 17 charges were proved against the Council; that the impugned prefer is passed without considering the tenable explanation submitted by them along with materil documents in support of their case. and show that the charges made are wholly untenable in Jaw. It is further stated that despite the directions of this Court in the previous Writ petition to the first respondent not to give effect to the order that would be passed by It for a period of two weeks from the date of the order, during which time the petitioners shall have the liberty to seek such redressal as may be legally open to them, the impugned order was published in the Karnataka Gazette on 10. 5. 2000 and the 2nd respondent was appointed as Administrator to take charge of the 3rd respondent-Council in order to see that these petitioners should not approach this Court and challenge the impugned order and obtain any stay order. The date of pronouncement of the impugned order was not given by the 1st respondent after the case was heard by the 1st respondent. Though the impugned order was pronounced on 9. 5. 2000 neither the impugned order was served nor informed to the petitioners; that the same was kept in abeyance without disclosing the same till the 2nd respondent took charge of the 3rd respondent council on 25. 5. 2000 and according ,to the petitioners the impugned order was despatched to these petitioners on 26. 5. 5. 2000 neither the impugned order was served nor informed to the petitioners; that the same was kept in abeyance without disclosing the same till the 2nd respondent took charge of the 3rd respondent council on 25. 5. 2000 and according ,to the petitioners the impugned order was despatched to these petitioners on 26. 5. 2000 as per the document at Annexure-R and that therefore the impugned order passed by the State Government is not only in violation of the principles of natural justice, but the same Is In contravention of the directions issued by this Court in the earlier writ petition of the petitioners and that the action of the State government is also arbitrary and unreasonable as the proceedings were initiated by issuing the show cause notice by the first respondent in pursuance of the report of the 4th respondent and submitted to the first respondent for initiation of the proceedings in exercise of its power under Section 316 of KMC Act, 1964 contrary to the intentment and object of the Act and the proceedings under the provisions of the Act against the 3rd respondent council members were initiated and the impugned order was passed by the first respondent thereby the 3rd respondent could not discharge its constitutional obligation conferred upon the 3rd respondent-Town Municipal Council in terms of Articles 243q and 243t. Learned Counsel appearing on behalf of petitioners has elaborated his submission and contends that the State government is under the obligation to constitute Local Self governments and administer the same effectively for the purpose of achieving the laudable object of providing all civic amenities to the residents of the local self governments including the Municipal council under the provisions of the KMC Act, 1964. ( 3 ) THE first respondent/state Government has filed a detailedcounter statement justifying the impugned order passed by the first respondent. It is contended by Sri D'sa, learned Government advocate that the various grounds urged in the Writ Petition and the averments made on behalf of the petitioners are wholly untenable in law. The learned Counsel has also produced documents and also the translated copies of the charges mentioned in the show cause notice and he would submit that the first respondent has acted deligently and discharged his statutory duty while exercising his power conferred upon him under Section 316 of the KMC Act, 1964. The learned Counsel has also produced documents and also the translated copies of the charges mentioned in the show cause notice and he would submit that the first respondent has acted deligently and discharged his statutory duty while exercising his power conferred upon him under Section 316 of the KMC Act, 1964. It is contended that the statutory requirement as contemplated under section 316 of the KMC Act, 1964 of issuing charge sheet and giving opportunity to the petitioners has been complied with and the explanations offered by the petitioners has been duty considered with reference to the documents produced by them and the documents which were secured from the 3rd respondent-Town municipal Council; the first respondent has elaborately considered each one of the charges; and recorded his reasons in the preamble portion of the order as required under the provisions of Section 316 of the KMC Act, 1964 and recorded the findings holding that out of 20 charges 17 charges are proved. Therefore it is contended that this is not a fit case for this Court to interfere with the findings of fact recorded on disputed questions of fact in exercise of its extraordinary and supervisory power under Articles 226 and 227 of the Constitution of India and further urged that the impugned order is passed in the public interest and public good; though it has resulted in the duly elected councilors being replaced by the Administrator, such step as absoutely necessary on account of vide spread illegality indulged in as has been satisfactorily established from the records and also enquires made in that regard; the impugned order is not with any malafides as alleged in the writ petition and that therefore this is not a fit case for this Court to interfere with the impugned order on any of the grounds urged in the writ petition. Further, with regard to the inaction on the part of the first respondent in not communicating the order within 15 days to facilitate the petitioners to approach this Court and obtain appropriate orders it is contended that it is a bonafide mistake but not a malafide one; therefore the contentions urged jn this behalf is devoid of merits and the same has to be rejected. It'. It'. is further contended that the first respondent taking into consideration all relevant aspects of the case the documentary evidence on record and after giving reasonable opportunity to the petitioners has passed the impugned order which is neither illegal nor arbitrary, unreasonable and unjustified in law and as such it is submitted that this writ petition is liable to be dismissed. ( 4 ) RESPONDENTS 5 to 13 who are also the members of the 3rdrespondent and though they are parties to the resolutions passed by the Town-Municipal Council in respect of which charges are framed against the third respondent-Council, have got impleaded as party respondents and with a view to justify the order passed by the first respondent they have filed their detailed statement of counter and more or less they have urged the similar contentions urged by the first respondent. Sri. T. N. Raghupathy, leaned Counsel appearing on their behalf submitted that out of 20 charges, if the charge No. 18 is read closely along with the impugned order the findings recorded on this charge after consideration of the explanations and the documents makes it very clear that the charge is proved against the council members that charge itself is sufficient to justify the impugned order. The impugned order passed by the first respondent is just and proper and the same is in the public interest and large number of the residents of the third respondent Municipal Council, therefore the impugned order need not be interferred with by this Court in exercise of its extraordinary and supervisory jurisdiction. ( 5 ) THE conferment of power under Section 316 of the KMCAct,1964 upon the first respondent is quasi judicial in nature having regard to the fact that personal. hearing of the council members of the 3rd-respondent is provided before passing the order under the said section, which is a statutory right conferred upon the Councillors of the 3rd respondent council for the reason that the order of supersession that would be passed by the Government under Section 316 of the Act would follow the civil consequences of losing their membership to the council and vacating their office as councillors would follow. Further, under Section 316 of the exercise of power is is conferred upon the Government to dissolve the Municipal Council for any one of the grounds which are enumerated under the said provision of the Act. Further, under Section 316 of the exercise of power is is conferred upon the Government to dissolve the Municipal Council for any one of the grounds which are enumerated under the said provision of the Act. The Kamataka State Government in exercise of its Constitutional power under Clauses (2) and (3) of Article 166 of the Constitution of India has framed the Karnataka Government (Transaction of Business) Rules, 1977 (for short "kg (TB) Rules, 1977") and also Karnataka Government (Allocation of Business) rules. 1977 (for short "kg (AB) Rules, 1977" ). Under Part-l of the kg (TB) Rules, 1977 allocation and distribution of business is clearly enumerated. As per Schedule X of the KG (AB) Rules, 1977 the housing and Urban Development Department including Municipalities and Local Boards is allocated to the said Department for exercise of its powers independently by the persons upon whom the power conferred under the Rules of KG (TB) Rules, 1977. Under the said rules, the orders, passed on behalf of the Government referred to under Section 316 shall be issued in the name of the Governor but the orders shall be passed by the cabinet Minister-incharge upon whom the power are conferred by the State under 13 and 14 of the rules referred to above. Under Rule 5 of KG (TB) Rules, 1977 the governor shall, on the advice of the Chief Minister, allocate among the Ministers the Business of the Government by assigning one or more, departments of the Secretariat to the charge of a Minister. Accordingly, the Urban Development Department is assigned to the minister of Cabinet Rank under the KG (AB) Rules, 1977. Under Rule 6 of KG (TB) Rules,1977 subject to the provisions of the these Rules, each Minister shall by means of Standing Orders arrange with secretary of the Department what matters or classes of matters are to be brought to his personal notice and copies of such Standing orders shall be sent to the Government and the Chief Minister. In the instant case, undisputedly the power to be exercised under section 316 of the KMC Act is conferred upon the - Cabinet Minister of the Housing and Urban Development Department which power has to be exercised by him alone. In the instant case, undisputedly the power to be exercised under section 316 of the KMC Act is conferred upon the - Cabinet Minister of the Housing and Urban Development Department which power has to be exercised by him alone. No standing order is produced in this case by the first respondent to show that the power conferred upon the State Government under Section 316 for the dissolution of the Municipal Council are assigned to the Secretary of the department either by means of General Order, Special Order or standing Order as provided under Rule 6 (1) and (2) of the KG (TB) rules. Therefore, the power which is conferred upon the Government under the provisions of the KMC Act has to be exercised by the political Executive namely the incharge Minister for Urban development as per the Rules of the KG (TB) Rules 1977, upon whom power is conferred. It is also a well settled principle of law that the authority upon whom the powers are conferred following the procedure as contemplated under the provisions of the Statute, and the relevant Rules relating to the business of the Government, such powers shall be exercised by that person above in the manner as provided otherwise exercise of such powers and passing of an order in exercise of power under the provisions of the KMC Act other than the person upon whom such power is conferred, such order is a nullity in the eye of law, this position of law has been clearly laid down by the Hon'ble Supreme Court in the case BABU verghese vs BAR COUNCIL OF INDIA', the same are extracted as hereunder for consideration and examining this case to find out as to whether the impugned order is in conformity with the law laid down in the above said case. "31. It is the basic principle of law long settled that if the manner of going a particular act is prescribed under any Statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v Taylor, (1875) 1 ch. "31. It is the basic principle of law long settled that if the manner of going a particular act is prescribed under any Statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v Taylor, (1875) 1 ch. D 426 Ahmad v King Emperor, 63 Ind App 372: AIR 1936 PC 253 who stated as under : "where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. ""32. This rule has since been approved by this Court in Rao shiv Bahadur Singh v State of Vindhya Pradesh, 1954 SCR 1098 : air 1954 SC 322 and again in Deep Chand vs State pf rajasthan, (1962) 1 SCR 62: AIR 1961 SC 1527 . These cases were considered by a Three Judge Bench of this Court in State of Uttar Pradesh v. Singhara. Singh, AIR 1964 SC 358 : (1964) 1 scwr 57 and the rule laid down in Nazir Ahmad's case (supra) was again upheld. The rule has since been applied to the exercise of jurisdiction by Courts and has also been recognised as a salultary principle of administrative law. "if the provisions of Section 316 of the KMC Act read with Rules 4, 5, 6, 14 and 33 of the KG (TB) Rules, 1977 and KG (AB) Rules,1977 referred to supra, the conferment of power for dissolution of a municipal Council the powers are conferred upon the Cabinet Minister incharge of the Department. Having regard to the legal contentions raised by Sri Jayakumar S. Patil, learned Counsel appearing for the petitioners in this behalf that the impugned order passed by the first respondent is not in accordance with law is required to be examined in the background of facts of this case and the statutory provisions under Section 316 and the Rules referred to supra. ( 6 ) IT is the case of the first respondent that the petitioners wereheard by the Secretary to the first respondent on the. ( 6 ) IT is the case of the first respondent that the petitioners wereheard by the Secretary to the first respondent on the. directions of this Court in the earlier W. P. No. 38182/99; as could be seen from the Original File the order was drafted by the Deputy Secretary of the Department and the same has been approved by the Secretary and the concerned Minister incharge for Urban Development and that therefore the order is in conformity with Section 316 read with rules 4, 5 (2), 6, 14 and 33 of KG (TB) Rules, 1977. It is not the case of the first respondent that the concerned Cabinet Minister by means of either General, Special or Standing Order conferred the power upon the Secretary of the Department in respect of different matters and classes of matters including the power to be exercised under the provisions of Section 316 of the KMC Act which are required to be brought to his personal notice. In view of these undisputed facts; as per Rule5{2), the department of Urban Development including municipal Administration has been assigned by the Chief Minister to the concerned Minister of the Departments. As per the original file produced by the first respondent-Government, it is noticed that the secretary to the Department has heard the representatives of the petitioners on 16. 3. 2000 and thereafter at Paragraphs 88 to 113 with reference to the various allegations, made in the show-cause notice served upon the council members, the order is drafted by the Under secretary on 16,3. 2000 and the same was submitted for consideration of the Secretary. The Secretary on 6,4. 2000 at paragraphs 114 to 116 of the original file has stated that against the 3rd respondent Council 20 charges were made out of which 17 charges are proved. The draft notes was put up by the under secretary stating that same is approved subject to the approval of the concerned Minister and submitted his note for consideration o1 the Minister of State for Urban Development Authority, The conoerned minister has signed the proceedings on 13-4-2000 stating that place it before the Chief Minister for his orders. The draft notes was put up by the under secretary stating that same is approved subject to the approval of the concerned Minister and submitted his note for consideration o1 the Minister of State for Urban Development Authority, The conoerned minister has signed the proceedings on 13-4-2000 stating that place it before the Chief Minister for his orders. " Thereafter, as could be seen at paragraph 119 of the original file the Minister for Urban development has approved the order passed by the Secretary and thereafter the impugned order was passed on 9-5-2000 and the sama was published in the Karnataka Gazette on 10-5-2000. In the background of facts narrated above, from the original file maintained by the first respondent, this Court has to examine and record Its findings as to whether the impugned order is passed by the government in exercise of its power under Section 316 of the KMC act read with KG (TB) Rules,1977 and KG (AB) Rules, 1977. This court has examined this question keeping in view the law laid down by the Apex Court in the case reported in G. NAGESHWAR RAO vs APSRTC CORPORATION wherein the Constitutional Bench of the Supreme Court with reference to the KG (TB) Rules framed under article 166 of the Constitution of India by the Andhra Pradesh government has considered and answered with reference to the rival contentions urged on-behalf of the state and other Party as to what action or orders of the State Government would constitute a judicial act and after considering the various judgments of the supreme Court namely 1950 SCC 222 and other judgments. From the law laid down by the Supreme Court in the case referred to supra ft is clear that the power conferred upon the Government under section 316 of KMC Act is a quasi judicial power. Therefore, that power should have been exercised by the Government represented by the incharge Cabinet Minister of the department upon whom the power is conferred under the KG (TB) Rules and passed the impugned order in the name of the Governor. In view of the undisputed facts referred to above from the original file of the first respondent, it is clear that the matter was not heard by the concerned cabinet Minister, upon whom power is conferred for passing the order under Section 316 of the Act. In view of the undisputed facts referred to above from the original file of the first respondent, it is clear that the matter was not heard by the concerned cabinet Minister, upon whom power is conferred for passing the order under Section 316 of the Act. The Secretary of the first respondent has heard the representatives of the petitioners as per the directions of this Court. This Court has not considered in the previous Writ Petition as to whether the Secretary has got the power to issue the show-cause notice and to hear the case under the provisions of Section 316 of the KMC Act for exercising the government power and pass an appropriate order, as this legal question was not raised and considered in the said Writ Petrtion. Therefore it was the duty of the first respondent's secretary to examine and find out as to whether he had the power in law to act and take appropriate action in the matter by transacting the government. Business before issuing the show-cause notice under the provisions of the Act. ,keeping in view the KG (TB) Rules, 1977 and KG (AB) Rules,1977. 'further, merely because this Court has directed the Secretary of the Department to hear the petitioners in the proceedings, it does not amount to conferment of jurisdiction and power upon him contrary to the statutory provisions and the rules referred to supra. The direction issued by this Court to the secretary to hear the petitioners in the proceedings must be read with other directions in the order, which would clearly state that the government must take appropriate decision in the matter, further, the decision of the Hon'bte Supreme Court in the G; nageshwararao's case at paragraphs 30 and 31 are relevant for the purpose of considering the case of the parties which reads thus:-"30. With this background we shall proceed to consider the. validity of the three alleged deviations of the State Government from the fundamental judicial procedure. In the present case, the officer who received the objections of the parties and heard them personally or through their representatives; was the catagory of the Transport Department under the Madras Government business Rules and Secretariat Instructions' made by the governor under Article 166 of the Constitution the Secretary of a department is its head. In the present case, the officer who received the objections of the parties and heard them personally or through their representatives; was the catagory of the Transport Department under the Madras Government business Rules and Secretariat Instructions' made by the governor under Article 166 of the Constitution the Secretary of a department is its head. One of the parties to the dispute before the State Government was the Transport department functioning as a statutory authority under the Act. The head of that department received the objections, heard the parties, recorded the entire proceedings and presumably discussed the matter with the Chief minister before the matter approved the scheme. Though the formal orders were made by the Chief Minister, in effect, and. substance, the enquiry was conducted and personal hearing was given by one of the parties to the dispute itself. It is one of the fundamental principles of Judicial procedure that the person or persons who are entrusted with the duty of headng a case judicially should be those who have no personal bias in the matter. In Ranger vs Great Western Rly, Co. , 1854-5 HLC 72 at p. 89;10 er 824 at p. 827, Lord Cranworth L. C. , says: "a judge ought to be, and is supposed to be, indifferent between the parties. He has, or is supposed to have, no bias inducing him to lean to the one side rather than to the other In ordinary cases it is just ground of exception to a judge that he is not indifferent, and the fact that he is himself a party, or interested as a party, affords the strongest proof that he cannot be indifferent. "in Rex v. Sussec Justices; Exparte Mccarthy 1924-1 KB 256 at p. 258, Lord Hewart C. J. , observed:"it is said, and, no doubt, truly, that when that gentleman retired in the usual way with the justices, taking with him the notes of the evidence in case the justices might desire to consult him, the justices came to a conclusion without consulting htm, and that he scrupulously abstained from referring to the case in any way. But while that is so, a long line of cases shows that It is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. But while that is so, a long line of cases shows that It is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. The question, therefore, is not whether in this case the deputy clerk made any observation or offered any criticism which he might not properly have made or offered; the question is whether he was so related to the case in its civil aspects as to be unfit to act as clerk to the justices in the criminal matter. The answer to that question depends not upon what actually was done, but upon what might appear to be done. "this was followed in Rex v Essex Justices; Exparte Perkins; , 1927-2 KB 475. In Franklin's Case, 1948 AC 87 (supra), though on a construction of the provisions of that Act under consideration in that case it was held that the Minister was not acting judicially in discharging his duties, his Lordship accepted the aforesaid principle and expressed his view on the doctrine of bias thus, at page 103:"my Lords, I could wish that the use of the word 'bias' should be confined to its proper sphere. Its proper significance, in my opinion, is to denote a departure from the standard of even handed justice which the law requires from those who oecupy judicial office, or those who are commonly regarded as holding a quasi-judicial office, such as an arbitrator. The reason for this clearly is that, having to adjudicate as between two or more parties, he must come to his adjudication with an independent mind, without any inclination or bias towards one side or other in the dispute. "the aforesaid decisions accept the fundamental principle of natural justice that in the case of quasi judicial proceedings/the authority empowered to decide the dispute between opposing parties must be one without bias towards one side or other in the dispute. It is also a matter of fundamental importance that a person interested in one party or the other should not, even formally, take part in the proceedings though in fact he does not influence the mind of the person, who finally decides the case. This is on the principle that justice should not only be done, but should manifestly and undoubtedly be seen to be done. This is on the principle that justice should not only be done, but should manifestly and undoubtedly be seen to be done. The hearing given by the Secretary, Transport Department, certainty offends the said principle of natural justice and the proceedings and the hearing given, in violation of that principle, are bad. "31. The Second objection is that while the Act and the Rules framed thereunder impose a duty on the State Government to give a personal hearing, the procedure prescribed by the Rules impose a duty on the Secretary to hear and the Chief Minister to decide. This divided responsibility is destructive of the concept of judicial hearing. Such a procedure defeats the object of personal hearing. Personal hearing enables the authority concerned to watch the demeanour of the witnesses and clear- up his doubts during the course of the arguments, and the party appearing to persuade the authority by reasoned argument to accept his point of view. If one person hears and another decides, then personal hearing becomes an empty formality. We therefore, hold that the said procedure followed in this case also offends another basic principle of judicial procedure. "by reading the above said paragraphs of the judgments of the Apex court in the case referred to supra, in view of the conferment of power upon the incharge Cabinet Minister of the Department under the KG (TB) Rules,1977 referred to supra, the Secretary of the first respondent should not have issued the show-cause notice and initiated the proceedings against the third respondent council members including the hearing of the matter. After hearing the matter he has not passed the order, but the Under Secretary of the department has prepared the draft order with reference to the allegations made against the Council members chargewise and he has also referred to the documents, the said draft order prepared by him, was approved by the Secretary of the Department, it is noticed at Paragraphs 114 to 116, of the original file with regard to which I have already recorded a finding that the Secretary of the Department has approved the draft order prepared by the Under Secretary, of the Department, the same was forwarded for approval of the concerned incharge Cabinet Minister for Urban Development Authority and the concerned Minister at Paragraph 119 has approved with reference to the note put up by the Secretary at Paragraph 116. The approval of the draft order of the Secretary is undated. Thereafter the impugned order came to be passed on 9-5-2000 and, in the name of the Governor signed by the Deputy Secretary it was published in the Karnataka Gazette on 10-5-2000. Having regard to the undisputed facts naratted in this order from the original files produced before this Court, and also keeping in view the law declared by the Apex Court in the G. NAGESHWARARAO and BABU verghese case referred to supra this Court has answered the legal question raised in this case against the first respondent government holding that the order which is approved ,by the concerned incharge Cabinet Minister as per his approval notes based on the notes put by the Secretary at Paragraph 116 is not an order passed by the Government as contemplated under Section 316, for the reason that the hearing was given by the Secretary, the draft order was prepared by the Under Secretary which has been approved by the Secretary and further approved by the Minister. Therefore, the impugned order cannot be called as an order passed by the government in exercise of the power under Section 316 read with kgftb) Rules, 1977 and KG (AB) Rules, 1977. In any event, the order impugned also cannot be termed as the order passed by the secretary for the reasons stated supra. In this view of the matter, the impugned order is not passed by the Minister of Secretary in exercise of the power under Section 316 and Rules referred to supra and therefore the said order is a nullity in the eye of law for the reason that the statute confers power upon the particular authority and lays-down a particular procedure to be followed for passing the order, which entails civil consequences. Therefore the order should have passed only in the manner in which it is prescribed under the provisions of the Statute, Rules otherwise the order cannot be called as an order at all in the eye of law as held by the Apex Court in the case reported in 1999 (3) SCC 431, referred to supra. Therefore the impugned order is a nullity in the eye of law which cannot be allowed to sustain. ( 7 ) THE impugned order passed by the first respondent also cannotbe sustained for one more reason. Therefore the impugned order is a nullity in the eye of law which cannot be allowed to sustain. ( 7 ) THE impugned order passed by the first respondent also cannotbe sustained for one more reason. What is contemplated-under section 316 of KMC Act, 1964 is that the proceedings can be initiated against any Municipal'council if, in the opinion of the Government any Municipal Council on any one of the grounds enumerated under sub-section (1) of Section 316, namely if any Municipal Council is not competent to perform or persistently makes default in the performance of the duties imposed on it or undertaken by it by of under this Act, or any other law, or exceeds or abuses its power or refused to carryout the directions given to it under the provisions of this Act or any other law or is functioning in a manner prejudicial to the Municipal Council, the Government may, by an order published, together with a statement of the reasons therefor in the Official gazette, declare the Municipal Council to be incompetent or in default, or to have exceeded or abused its powers, as the case may be and may dissolve it. This important aspect of the matter is also required to be examined by this Court in this case having regard to the various allegations made in the show-cause notice issued to the councillors of the third respondent by the Secretary of the first respondent. The various allegations made in the notice have been denied by them by submitting explanation and additional explanation statement with reference to the documents, resolutions and judgments of this Court. In support of the contention urged by the learned Government Advocate and counsel on behalf of respondents have also placed reliance on the judgment of the Apex Court reported in STATE OF MAHARASHTRA vs BABULAL KRIPARAM takkamore AND OTHERS for the proposition that the required procedure as provided under Section 316 of KMC Act, 1964 has been complied with by the first respondent and the reasoned order is passed after considering the case of the petitioners and that therefore this Court need not interfere with the impugned orders as the power of Judicial review is limited. The learned Counsel for the petitioners has also placed reliance on the same judgment referred to above in support of his contention on behalf of the petitioners contenting the mandatory duty has not been discharged by the government while passing the impugned order in exercise of its power under the provisions of the Act. In the said Judgment at paragraph (4) the Apex Court has held as follows; -"the conditions for the exercise of the power under Section 408 are clearly stated in the section. It must appear to the State government that the Corporation is not competent or persistently makes default in the performance of the duties imposed on it by or under the Act or any other law for the time being in force, or exceeds or abuses its powers except in cases of emergency, the state Government must give to the Corporation an opportunity to show-cause why the order under the Section should not be made. If on a consideration of the explanation submitted by the corporation, the State Government considers that there is no ground for making the order, the Government may drop the proceedings. Otherwise, it may issue an order declaring the corporation to be superseded and directing that all the Councillors shall retire from Office. "with reference to the law laid down in that case by the Apex court, this Court has to examine and answer the rival contentions urged by the learned Counsel on behalf of the parties as to whether the statutory requirement of giving hearing and consideration of case of the petitioners was done by the first respondent or not. In view of the law laid down in the aforesaid Judgment by the Apex Court, it has explicitly made clear that the order passed under Section 316 of the Act, the hearing given by the Secretary does not amounts to hearing by the competent authority upon whom the power is conferred to exercise such power under the Rules referred to supra. Further, he has not applied his mind to the facts of the case and the explanations and the documents submitted by the petitioners in support of their case. Further, he has not applied his mind to the facts of the case and the explanations and the documents submitted by the petitioners in support of their case. Absolutely there is no application of mind on the part of either the Secretary or the Political Executive-Cabinet minister, who has approved the order, there is no consideration of the case of the petitioners as stated by them in their, explanations with reference to the documents upon which much reliance is placed by them. There are also reasons assigned in the impugned order as to why the material evidence placed on record in support of their case is not acceptable to the first respondent and it has preferred to accept the case of the Department and therefore this Court has to record a finding that the findings recorded in the impugned order are erroneous in law. As I have already recorded a finding that at any rate it cannot be termed as a decision rendered either by the secretary or by the concerned incharge Cabinet Minister on behalf of the Government. Apart from these reasons stated supra, by perusing the impugned order, it is clear that it is not a considered order at all for the reasop that except referring to some documents, the explanations and the reliance placed upon the documents by the representatives of the petitioners have not been-referred and no reasons have been assigned as to why the explanations and documents placed on record by the petitioners was not accepted by the person who has either drafted the order or approved by the secretary or the concerned Minister. Therefore, the order is not in compliance with the provisions under Section 316 of KMC Act as there is no consideration of the case putforth by the petitioners the impugned order is vitiated in law. Hence, the impugned order is liable to be quashed as the same is contrary to law laid down by the Apex Court in the case of B. K. TAKKAMORE referred to supra. Hence, the impugned order is liable to be quashed as the same is contrary to law laid down by the Apex Court in the case of B. K. TAKKAMORE referred to supra. ( 8 ) FURTHER this Court has to view the matter seriously with regardto the fact of disobedience of the direction issued by this Court to the first respondent in the previous Writ petition directing it not to give effect to its order that would be passed for a period of two weeks to facilitate the petitioners to approach the appropriate forum and seek appropriate interim relief against such order. No plausible explanation is forthcoming either in the counter statement or in the ordersheet as to why the order was not despatched to the petitioners immediately after approval by the concerned Minister. It is an undisputed fact that the impugned order was despatched to the petitioners on 26. 5. 2000. As, could be seen from the letter written by the MLA of Ranebennur constituency it is noticed at Paragraph 130 of the original file that he has written a letter to the Secretary of the Department stating that on 26. 5. 2000 the 2nd respondent has taken over the charge of the 3rd respondent-Council as an administrator. This would indicate that the first respondent for the obvious reasons has wilfully disobeyed the directions issued by this court in not communicating the order to the petitioners, for the reason that after taking over of the charge, of the third respondent council by the second respondent, the petitioners cannot obtain the interim order against the impugned order. Therefore, this is a very serious lapse on the part of the first respondent in not communicating the order to the petitioners, as they have overreached the direction issued by this Court. In this view of the matter, the petitioners are entitled for the relief of issuing a direction to the 1st and 2nd respondent to see that the Administrator shall handover the charge of the third respondent council to the elected representatives of the Council within one week from the date of receipt of this order. ( 9 ) FOR the reasons stated supra, I proceed to pass the following:-ORDER the writ petition is allowed Rule made absolute. The impuhged order at Annexure-Q is hereby quashed. Consequently the appointment of 2nd respondent by virtue of the impugned order dated 25. 5. ( 9 ) FOR the reasons stated supra, I proceed to pass the following:-ORDER the writ petition is allowed Rule made absolute. The impuhged order at Annexure-Q is hereby quashed. Consequently the appointment of 2nd respondent by virtue of the impugned order dated 25. 5. 2000 is also hereby quashed. The 2nd respondent is directed to handover charge to the elected Council Members within one week from the date of receipt of this order. However, opportunity is given to the first respondent to take appropriate action in accordance with law under Section 316 of KMC act 1964 read with KG (TB ). Rules 1977 and KG (AB) Rules, 1977, if there is need and it is advised to do so. --- *** --- .