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Madhya Pradesh High Court · body

2012 DIGILAW 461 (MP)

Rajesh Kathuria v. State of M. P.

2012-04-30

B.K.DUBE, S.K.GANGELE

body2012
JUDGMENT Gangele, J. 1. The appellant has filed this appeal against the order dated 24/01/2005 passed by learned Single Judge in W.P.No.8421/2011. 2. The appellant is an elected President of Municipal Council, Morena. The Collector constituted a Committee of Shri A.B. Singh, Joint Collector, Morena Shri Yogendra Singh Bhadoriya, District Treasury Officer, Morena and Y.P. Batham, Deputy Director, Social Justice, Morena Centre vide order dated Annexure P/1 in regard to financial irregularity committed by the Municipal Council Morena to the effect that the amount which had been given to the Municipal Council under the head of Social Security Pension was deposited in other heads and paid to different persons. Another order Annexure P/2 was also passed by the Collector in regard to financial irregularity to the effect that some vouchers and cheques books were seized. In the aforesaid documents, the signatures of Chief Municipal Officer were not found. The appellant challenged the aforesaid orders before the writ Court on the ground that the Collector had no power and authority to order enquiry in regard to affairs of the Municipal Council, Morena. Learned Single Judge dismissed the writ petition on the ground that the allegations against the appellant are of financial irregularities upto the extent of Rs.86.00 lacks, hence, no interference is called for. 3. Learned senior counsel appearing on behalf of the appellant has contended that under the provisions of Madhya Pradesh Municipalities Act, 1961, the Collector has no power and authority to order enquiry about the working of a municipality. It has further been submitted that the orders passed by the Collector are without power and authority. In support of his contentions, he relied on a judgment of this Court in the case of S.S. Tiwari vs. State of M.P. reported in 1998 (2) MPLJ SN 25. 4. Contrary to this, learned Deputy Advocate General has contended that there are serious charges of financial irregularities against the appellant and the Chief Municipal Officer. The Committee found the charges prima facie proved thereafter, the State Government issued a notice to the appellant as to why he be not removed from the post of President. He has further submitted that the Collector has simply enquired the matter and forwarded the same to the State Authority for proper order and for the aforesaid purpose, the Collector has power and authority, hence, the appeal has no merit, it is to be dismissed. He has further submitted that the Collector has simply enquired the matter and forwarded the same to the State Authority for proper order and for the aforesaid purpose, the Collector has power and authority, hence, the appeal has no merit, it is to be dismissed. In support of his contentions, he relied on the following judgments: (i) Mohammad Swalleh and others vs. IIIrd Additional District Judge, Meerut and another; AIR 1988 SC 94 and (ii) Maharaja Chintamani Saran Nath Shahdeo vs. State of Bihar and others; (1999) 8 SCC 16 . 5. The State Government has framed a Social Security Scheme and under the aforesaid Scheme, the Social Welfare Department pay monthly pension to the old aged persons or disabled persons under ; Indira Gandhi National Old Age Pension Yozna, Indira Gandhi National Widow Pension Yozna, Indira Gandhi National Disabled Pension Yozna. The aforesaid pension is paid, either through the Janpad Panchayat in the rural area or through the Municipal Council in the urban area. The allegation against the appellant is that Municipal Council, Morena received fund for payment of pension, however, it had made payment to the contractors and other persons. To inquire the aforesaid lapse, the Collector had constituted a three members Committee and the Committee found the charges prima facie proved. 6. The appellants himself in the petition filed before the writ Court pleaded that Nagar Panchayat has two bank accounts; (1) Account No.5321210364 and (2) Account No. 63050738664 in State Bank of India. The Account No.1 relates to pension under Samajik Suraksha Vradhaawastha Pension Yozna and the Second Account is in regard to payment by the Municipal Council for disbursement of salary to the staff and other amount. The State Government issued directions in regard to payment of pension under Samajik Suraksha Vradhaawastha Pension Yozna and for the month of October, 2011, as there was Dipawali Festival and salary of the Municipal employees had to be paid on or before Dipawali Festival, hence, due to human error Rs. 67.00 lacks were paid by the Municipal Council towards the salary of the employees from the account, which was for the Samajik Suraksha Vradhaawastha Pension Yozna and certain amount was also paid by the Municipal Council from the aforesaid on diesel, electricity charges and other municipal expenses. In November, 2011, when the mistake was detected, the Chief Municipal Officer credited the entire amount in the pension account. In November, 2011, when the mistake was detected, the Chief Municipal Officer credited the entire amount in the pension account. 7.The Committee appointed by the Collector has clearly observed that between the period from 25/10/2011 to 18/11/2011 from the account of Social Security Pension, which was for the purpose of keeping the amount of Social Security Pension, 33 cheques were issued by the Municipal Council and an amount of Rs.86,33,981/- was disbursed by the Municipal Council. The details have been mentioned in the report. The Municipal Council did not disburse the pension to the beneficiaries and as per the circular of the Department, the pension has to be disbursed upto 5 of every month, however, the Municipal Council disbursed the pension after three months and two months belatedly to the beneficiaries and also there was a delay of nearabout three months. 8. From the aforesaid report, it is clear that the Municipal Council had deliberately delayed the payment of Social Security Pension to the beneficiaries. It is a shocking affair and shocks the consciences of the Court. The disabled Pension Scheme, Social Security Pension Scheme has been introduced by the Government, Union of India and State Government to provide some benefit to the needy old age and disabled persons and those persons are required money regularly, rather those persons who are the employees of the Municipal Council or the contractors or the other persons. We are unable to understand what was in the mind of the appellant and Chief Municipal Officer who were responsible for this act and it appears that it had deliberately done. In our opinion, the beneficial scheme like; Social Security Pension has been kept in jeopardy by the action of the appellant. On this account alone, the appellant is not entitled any benefit from this Court under Article 226 of the Constitution of India, because, in our opinion, the act of the persons who are responsible for this act amounts to criminal breach of trust. The Hon’ble Supreme Court in the case of Centre for Public Interest Litigation and others vs. Union of India and others, reported in (2012) 3 SCC 1 has held as under in regard to doctrine of Public Trust: “79. The doctrine of public trust, which was evolved in Illinois Central Railroad Co. The Hon’ble Supreme Court in the case of Centre for Public Interest Litigation and others vs. Union of India and others, reported in (2012) 3 SCC 1 has held as under in regard to doctrine of Public Trust: “79. The doctrine of public trust, which was evolved in Illinois Central Railroad Co. V. People of the State of Illinois, 36 L Ed 1018 has been held by this Court to be a part of the Indian jurisprudence in M.C. Mehta vs. Kamal Nath, (1997) 1 SCC 388 and has been applied in Jamshed Hormusji Wadia v. Port of Mumbai; ¼2004½ 3 SCC 214, Intellectual Forum v. State of A.P.; (2006) 3 SCC 259 and Fomento Resorts and Hotels Ltd vs. Minguel Martins, ¼2009½ 3 SCC 571. 80. In Jamshed Hormusji Wadia case, this Court held that the State’s actions and the actions of its agencies/instrumentalities must be for the public good, achieving the objects for which they exist and should not be arbitrary or capricious. In the field of contracts, the State and its instrumentalities should design their activities in a manner which would ensure competition and non-discrimination. They can augment their resources but the object should be to serve the public cause and to do public good by resorting to fair and reasonable methods.” 9. Even otherwise, if due to quashment of the orders on the ground of lack of jurisdiction, an illegal order would revive, then also, the Court under Article 226 of the Constitution of India has power to refuse the exercise of jurisdiction under Article 226 of the Constitution of India, as held by the Hon’ble Supreme Court in the case of Maharaj Chintamani Saran Nath Shahdeo vs. State of Bihar and others reported in (1999) 8 SCC 16 , where, the Hon’ble Supreme Court has held as under: “38. For what has been stated above we hold that the order of the learned Member of Board of Revenue directing action to be taken for refund of the excess compensation was valid and proper though he had no jurisdiction to pass the order. In the event it is set aside, it would amount to reviving an invalid order of payment of excess compensation to the appellant.” 10. With regard to powers of the Collector: Under section 322 of the Municipality Act, 1961, the Collector has power of inspection and supervision. In the event it is set aside, it would amount to reviving an invalid order of payment of excess compensation to the appellant.” 10. With regard to powers of the Collector: Under section 322 of the Municipality Act, 1961, the Collector has power of inspection and supervision. The powers conferred under section 322 are as under: “322. Power of inspection and supervision: The Divisional Commissioner, or any officer authorised by the State Government in this behalf by general or special order may - (a) enter on and inspect or authorise any other person to enter on and inspect any immovable property occupied by Council or any of its committees or any institution under its control or management or any work in progress under its direction; (b) call for or inspect any record or extract from the proceedings of any meeting of the Council or of any its committees and any book or document in the possession of or under the control of a Council; (c) call for any return, statement, account or report which he may think fit to require such Council to furnish.” The Collector has only informed about the act of the appellant and consequent thereto the Government issued a notice, that act of the Collector cannot be said to be arbitrary or illegal. 11. Before parting with the case, we have come to know that the amount which has to be paid to the needy persons under the Social Security Pension has been diverted. The State Government is required to take some strong measures in this regard. In our opinion, the State Government can very well direct the beneficiary to open a Bank Account or if there is a Bank Account of the beneficiary, then the money can be deposited in the bank account directly in place of intermediate agency and the beneficiaries who are in dire need of the money would get the benefit immediately. Copy of this order be sent to the Chief Secretary, State of Madhya Pradesh. We are not issuing a mandatory direction in this regard, but the Government may consider the aforesaid proposal in letter and spirit. 12. Consequently, we do not find any merit in this appeal. It is hereby dismissed. No order as to costs.