JUDGMENT : N.Y. Hanumanthappa, C.J. - The petitioners claim to be the elected office bearers of Athgarh Notified Area Council (hereinafter referred to as the 'N.A.C.'), They were elected in the month of July, 1997 and the period of office to which they were elected as Chairperson and Councillors is five years. When they were holding their respective offices, show-cause notice was issued to them vide Annexure-1 in respect of certain charges levelled against them. The charges so levelled were that there was irregularity in allotment of shops in the market complex; that the market complex has been constructed on the Government land without any permission from the appropriate department; neither temporary licence was issued nor permission was accorded in favour of the evicted persons for establishment of wooden cabins in the N.A.C. area; shop-rooms were allotted on 27-12-1999; ten rooms have been let out ' Rs. 300/- per month and one room ' Rs. 400/- per month but no records are available to that effect, though the said site was located in the disputed market complex; apart from the sanctioned strength of L. F. S. cadre and non I.F.S. cadre, the N.A.C. has given appointment to 22 persons, without Government sanction; they have misappropriated the funds of the N.A.C. and also the Government funds; and they have not utilised the Government grants properly. Thus, alleging they were called upon by the N.A.C. to submit the explanation. The petitioner No. 1 being the Chairperson submitted his explanation as contained at Annexure-2. 2. In the explanation stand taken was that all the irregularities indicated related to the previous office bearers of the N.A.C. and not to them. According to petitioner No. 1, no action u/s 401(2) of the Orissa Municipal Act, 1950 (in short, the 'Act') can be ordered against the office bearers of the. N.A.C. . 3. On receipt of the explanation at Annexure-2, the Director of Municipal Administration & Ex-Officio Additional Secretary to Government, Housing and Urban Development Department, Orissa by notifications dated 24-1-2001 contained at Annexures 4 and 5 dissolved the N. A. C. with immediate effect and appointed the Sub-Collector, Athgarh as Administrator to exercise the power and discharge all the duties/responsibilities of the said N.A.C. and its Chairmanship until further orders. Both the notifications referred to above read as follows : Annexure-4 GOVERNMENT OF ORISSA HOUSING AND URBAN DEVELOPMENT DEPARTMENT NOTIFICATION Dated, Bhubaneswar, the 24-1-2001 No. SPL. MI. 11/2001-4302/HDD. Whereas Athgarh Notified Area Council was called upon to explain in this Department letter No. 31572/H. U. D. dt. 30-10-2000, a copy of which is annexed herewith to show cause within 15 (fifteen) days from the date of receipt of the said letter against the charges and irregularities committed by it. And whereas after consideration of explanation received from the said Council, the State Government are of the opinion that the said Council is incompetent to perform the duties imposed on it by law and exceeds and abuses its power. Now, therefore, the State Govt. in exercise of the powers conferred by Sub-section (1) of Section 401 of the O. M. Act, 1950 do hereby dissolve the said Council with immediate effect. BY ORDER OF THE GOVERNOR Sd. R. N. Dash Director, Municipal Admn. & Ex-Officio Addl. Secy. to Govt. Spl. Messenger Memo No. 4303/Dated, Bhubaneswar, the 24-1-2001. Copy forwarded to the Director, Printing, Stationary, and Publication, Govt. Press, Cuttack for information and necessary publication in an Extraordinary Issue of the Orissa Gazette on 27-1-2001 and supply 10 (ten) copies of the same to the undersigned. This notification is statutory and will bear a S. R. O. number. Director, Municipal Admn. & Ex-officio Addl. Secy. to Govt. Annexure-5 GOVT. OF ORISSA HOUSING AND URBAN DEVELOPMENT DEPARTMENT NOTIFICATION Dated, Bhubaneswar, the 24-1-2001 No. SPL. MI. 11/2001-4309/HUD. Whereas the Govt. in Housing and Urban Development Department, Orissa, in their Notification No. 4303/HUD. dated 24-1-2001 have dissolved the Notified Area Council Athgarh in the District of Cuttack under Sub-section (1) of Section 401 of Orissa Municipal Act, 1950. Now, therefore, in exercise of the powers conferred by Sub-section (5) of Section 401 of the said Act, the State Government, do hereby appoint the Sub-Collector, Athgarh as Administrator to exercise the power and to discharge all the duties/responsibilities of the said Notified Area Council and its Chairmanship until further orders. BY ORDER OF THE GOVERNOR Sd. R. N. Dash Director, Municipal Admn. & Ex-Officio Add). Secy. to Govt. Spl. Messenger Memo No. 4310/Dated, Bhubaneswar the 24-1-2001. BY ORDER OF THE GOVERNOR Sd. R. N. Dash Director, Municipal Admn. & Ex-Officio Add). Secy. to Govt. Spl. Messenger Memo No. 4310/Dated, Bhubaneswar the 24-1-2001. Copy forwarded to Director Printing, Stationary, and Publication, Orissa, Cuttack for information and necessary publication in an Extraordinary issue of Orissa Gazette on 27-1-2001 and supply 10 (ten) copies to the, undersigned. This notification is statutory and shall bear a S.R.O. number, Director, Municipal Admn. & Ex-Officio Addl. Secy. to Govt." 4. Challenging the aforesaid two notifications, this writ petition has been filed. The main attack to the orders passed by the Director of Municipal Administration & Ex-Officio Addl. Secretary to Government is that (i) he passed the orders without applying his mind to the relevant provisions of the Orissa Municipal" Act and the Orissa Municipal Rules; (ii) the orders so passed are illegal as they were passed without issuing notice to them; (iii) the irregularities pointed out in the show-cause notice related to the period of their predecessors and not to the period of the petitioners; (iv) the orders under challenge are arbitrary for the reason that no reasons have been assigned; and (v) the orders are the out-come of non-application of mind as the explanation submitted has not been considered in its proper perspective. It has also been submitted that the orders have been passed illegally and contrary to Article 243U of the Constitution of India, which envisages that before passing an order of removal on the ground of disqualification the Municipality shall be given a reasonable opportunity of being heard before its dissolution. In the instant case, no such opportunity was granted to the petitioners. 5. Mr. Nayak, learned Government Advocate, tried to support the orders by the authorities. According to him, when the orders under challenge have been passed after issuing the show-cause notice and considering the explanation offered, it means that the authorities have applied their mind and passed the same, as such there was no necessity for giving elaborate reasons. It is also submitted that it is incorrect to say that the irregularities pointed out related to the previous period. There was no request from the side of the petitioners for personal hearing. Mr. Nayak further submitted that as per Sub-section (2) of Section 401 when an explanation is given, same shall be considered and thereafter the order is to be passed. There was no request from the side of the petitioners for personal hearing. Mr. Nayak further submitted that as per Sub-section (2) of Section 401 when an explanation is given, same shall be considered and thereafter the order is to be passed. The mandate of Article 243U of the Constitution has no application to the case in hand as the authorities exercised the power conferred u/s 401 of the Orissa Municipal Act, 1950. Lastly it is contended that the petitioners having hot requested the authorities for personal hearing or at least mentioning the same in their explanation to the show-cause notice, now they cannot make it as a ground to attack the orders under challenge. 'Thus contending he urged that the writ petition be dismissed. 6. When an order is to be passed against a person holding an office and allegations of irregularities or illegalities are alleged against him, the authority concerned shall have to look into the explanation given by such person dispassionately. The said authority must also see whether the irregularities or illegalities related to the previous period or to the period of the person holding the office. If any order is passed without taking the same into consideration, it shall be held the same as the result of non-application of mind. 7. In the case on hand though the order appears to be administrative one, but in fact it is not so. On the other hand it is quasi-judicial, which is clear from the reading of the following section : Section 401 of the Act reads as under : "401. Dissolution and reconstitution of Municipality :--(1) If in the opinion of the State Government a Municipality is incompetent to perform or persistently makes default in performing the duties imposed on it by law or exceeds or abuses its powers, they may, by notification published in the prescribed manner, direct that the Municipality be dissolved. (2) Before publishing a notification under Sub-section (1), the State Government shall communicate to the Municipality the grounds on which they propose to so, fix a reasonable period for the Municipality to show cause against the proposal and consider the explanations and objection, if any, of the Municipality. (2) Before publishing a notification under Sub-section (1), the State Government shall communicate to the Municipality the grounds on which they propose to so, fix a reasonable period for the Municipality to show cause against the proposal and consider the explanations and objection, if any, of the Municipality. (3) On and with effect from the date of publication of such notification, all the Councillors including the Chairperson and Vice-Chairperson of the Municipality shall be deemed to have vacated their office as such and the election to constitute the Municipality in accordance with the provisions of this Act shall be completed before the expiration of a period of sis months from the said date: Provided that where the remainder of the period for which the dissolved Municipality would have continued is less than six months, it shall not be necessary to hold any election under this Sub-section for constituting the Municipality for such period. (4) The Councillors including the Chairperson and Vice-Chairperson of the Municipality constituted on such dissolution shall continue only for the remainder of the period for which the Councillors including the Chairperson and Vice-Chairperson of the dissolved Municipality would have continued had there been no such dissolution. (5) During the interval between the dissolution of a Municipality and the reconstitution thereof, all or any of the powers and duties of the Municipality and its Chairperson may be exercised and discharged, as far as may be, and subject to such extent, as the State Government may determine, by a person to be appointed by the State Government as the Administrator, and the Administrator so appointed may, if the State Government to direct, receive such payment for his services from the Municipal Fund as may be determined by them." 8. The very beginning of the section starts with the expression "If in the opinion of the State Government......" The words "in the opinion" have been explained by the Supreme Court in the case of The Barium Chemicals Ltd. and Another Vs. The Company Law Board and Others, While explaining the scope of Section 237(b) of the Companies Act of 1956 the Supreme Court held as follows : "The words 'in the opinion of the Central Government' in Section 237(b) indicate that the opinion must be formed by the Central Government and it is of course implicit that the opinion must he an honest opinion. The next requirement is that 'there are circumstances suggesting etc.' These words indicate that before the Central Government forms its opinion it must have before it circumstances suggesting certain inferences. Again an action, not based on circumstances suggesting an inference, of the enumerated kind will not be valid. In other words, the enumeration of the inferences which may be drawn from the circumstances, postulates the absence of a general discretion to go on a fishing expedition to find evidence. No doubt the formation of opinion is subjective but the existence of circumstances relevant to the inference as the sine qua non for action must be demonstrable. If the action is question on the ground that no circumstances leading to an inference of the kind contemplated by the section exists, the action might be exposed to interference unless the existence of the circumstances is made out. Since the existence of 'circumstances' is a condition fundamental to the making of an opinion, the existence of the circumstances, if questioned, has to be proved at least prima facie. It is not sufficient to assert that the circumstances exist and give no clue to what they are because the circumstances must be such as to lead to conclusion of certain definiteness." Thus, there is no merit in the contention that the duty of the Director of Municipal Administration is only to look into the explanation or objection if any filed to the show cause notice and to pass an order, if Article 243U of the Constitution of India was not there. 9. Part IX-A has been introduced to the Constitution by the Constitution (74th Amendment) Act, 1992 with effect from 1-6-1993. The said Part IX-A deals with the Municipalities, their business, management, constitution and composition of Wards Committees etc., reservation of seats, duration of municipalities etc., disqualification for membership, powers, authority and responsibilities, power to impose taxes by, and funds of the municipalities, finance commission, audit of accounts of municipalities, elections to the municipalities, application to Union territories. Article 243U of the Constitution reads as follows : "243-U. Duration of Municipalities, etc.- (1) Every Municipality, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting and no longer : Provided that a Municipality shall be given a reasonable opportunity of being heard before its dissolution. (2) No amendment of any law for the time being in force shall have the effect of causing dissolution of a Municipality at any level, which is functioning immediately before such amendment, till the expiration of its duration specified in clause (1). (3) An election to constitute a Municipality shall be completed,-- (a) before the expiry of its duration specified in clause (1) ; (b) before the expiration of a period of six months from the date of its dissolution :. Provided that where the remainder of the period for which the dissolved Municipality would have continued is less than six months, it shall not be necessary to hold any election under this clause for constituting the Municipality for such period. (4) A Municipality constituted upon the dissolution of a Municipality before the expiration of its duration shall continue only for the remainder of the period for which the dissolved Municipality would have continued under clause (1) had it not been so dissolved. 10. The mandate of the Constitution will always override the provisions of the Act. In the case in hand, the election took place in the year 1997. In case of any removal or disqualification, under Article 243U of the Constitution the Municipality is to be given the opportunity of being heard. The expression "being heard" shall be understood as not mere considering objection or explanation submitted to the show-cause notice. Apart from the aforesaid exception, a person against whom the allegations are made is to be called upon to know whether he likes to be heard in person while considering the objection/explanation filed by him. This requirement has not been observed before the orders under challenge were passed. The orders under challenge are devoid of reasons, fair-play of justice. Further, the order of dissolution was passed without good faith. Same is the result of non-application of mind to the charges levelled and the explanation submitted. Further, nothing has been produced before us to show that Annexures-4 and 5 have been issued by the Director of Municipal Administration after granting the personal hearing to the N. A. C.. In our opinion both the Annexures-4 and 5 as extracted above are dated 24-1-2001 and have been issued without following the principles of natural justice. Further, nothing has been produced before us to show that Annexures-4 and 5 have been issued by the Director of Municipal Administration after granting the personal hearing to the N. A. C.. In our opinion both the Annexures-4 and 5 as extracted above are dated 24-1-2001 and have been issued without following the principles of natural justice. They have also been issued contrary to the principles laid down by the Supreme Court in the following cases :-- (1) Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, and (2) Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, In Mohinder Singh Gill's case (supra) the Supreme Court held as follows : "When a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of challenge, get validated by additional grounds later brought out." While dealing with the necessity of hearing in an administrative proceeding the Supreme Court in Smt. Menaka Gandhi's case (supra) held as follows '. "Although there are no positive words in the statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature. The principle of audi alteram partem, which mandates that no one shall be condemned unheard, is part of the rules of natural justice. Natural justice is a great humanising principle intended to invest law with fairness and to secure justice and over the years it has grown into a widely pervasive rule affecting large areas of administrative action. The inquiry must, always be : does fairness in action demand that an opportunity to be heard should be given to the person affected ? The law must now be taken to be well settled that even in an administrative proceeding, which involves civil consequences, the doctrine of natural justice must be held to be applicable." Since Annexure-4 dissolving the Municipal Council is contrary to the principles of natural justice and in violation of the mandate of the Constitution, same deserves to be quashed. Further Annexure-5 by which the Sub-Collector, Athgarh, has been appointed as Administrator deserves to be quashed. Accordingly, both Annexures-4 and 5 are quashed. Further Annexure-5 by which the Sub-Collector, Athgarh, has been appointed as Administrator deserves to be quashed. Accordingly, both Annexures-4 and 5 are quashed. Now the matter is sent back to the Director of Municipal Administration to hear the petitioners on the explanation/objection given, and pass appropriate order on merit. By virtue of our quashing Annexures-4 and 5, the petitioners are entitled to be restored to the office. In other words, they shall be put in office where they were before issuance of the notifications at Annexures-4 and 5, Hence the Administrator shall hand over the charge of office to the elected Council. The Director of Municipal Administration will also instruct the Administrator in this regard. The petitioners are directed to appear before the Director of Municipal Administration without any notice from him on 26-4-2001 at 11 a. m. positively. On such appearance, the Director of Municipal Administration shall 6x the next date of hearing, when he shall hear the parties and pass appropriate order in accordance with law. All other contentions are kept open. In the result, the writ petition is allowed. R. K. Patra, J. 11. I agree. 12. Writ petition allowed. Final Result : Allowed