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2016 DIGILAW 1057 (ORI)

Pratap Kumar Jena v. Government of Odisha

2016-11-08

B.R.SARANGI, VINEET SARAN

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JUDGMENT : VINEET SARAN, J. The petitioner was elected as a Councillor of Bhubaneswar Municipal Corporation in the year 1997. On a direction issued in some writ petition filed in the year 2000, the accounts of the Bhubaneswar Municipal Corporation were put to internal audit, and as per the interim audit report, it was alleged that the petitioner has mis-utilized/ill-spent/incurred unauthorized expenditure to the tune of Rs.36,000/- in connection with house rent towards the so-called ward office, and Rs.27,000/- towards hire charge of vehicle for self, which was in contravention of the provisions of the Orissa Municipal Act, 1950 and the Rules framed there under. In the final audit report, it was also found that an amount of Rs.3,000/- of the Corporation fund had been mis-utilized by the petitioner for observance of the Local Self Government Day. 2. Pursuant to the audit report, the Executive Officer, Bhubaneswar Municipal Corporation issued a notice dated 25.01.2002, requiring the petitioner to deposit the aforesaid amount of Rs.36,000/- plus Rs.27,000/-, which had become payable on the basis of the report of the Special Audit Team. Immediately on receiving the said notice for payment of the aforesaid amounts, the petitioner submitted his detailed reply on 06.02.2002 to the Executive Officer, Bhubaneswar Municipal Corporation denying the allegations, and giving his explanation to the effect that all the expenditure had been made on the basis of the resolution passed by the Municipal Corporation, which was duly communicated to the State Government. Even though no order was passed on the said reply dated 06.02.2002 submitted by the petitioner, the Director, Municipal Administration & Ex-Officio Addl. Secretary to Government of Odisha issued a notice dated 22.08.2002 to the petitioner, directing the petitioner to deposit the aforesaid amounts of Rs.36,000/- plus Rs.27,000/-. 3. Since the reply of the petitioner dated 06.02.2002 submitted in response to the notice dated 25.01.2002 was not considered by the Municipal Corporation and as no order was passed after submission of the reply, but still the petitioner was directed to deposit amount, the petitioner filed a writ petition bearing W.P.(C) No.7597 of 2003, which was disposed of by a Division Bench of this Court on 30.07.2003 requiring the petitioner to deposit the requisite amount within three days, without prejudice to his rights, and thereafter, the representation/reply of the petitioner was to be considered by the Executive Officer as expeditiously as possible. 4. 4. It is not disputed that no order has yet been passed by the Municipal Corporation in response to the reply dated 06.02.2002 submitted by the petitioner. It is also not disputed that in compliance with the Court’s order dated 30.07.2003, the petitioner has deposited the entire amount of Rs.36,000/- plus Rs.27,000/- and also Rs.3,000/-. However, since in response to the notice dated 22.08.2002, the petitioner did not deposit the aforesaid amounts within fifteen days as directed, the Director, Municipal Administration & Ex-Officio Addl. Secretary to Government issued the impugned order dated 29.07.2003, according sanction for prosecution of the petitioner under Section 376 of the Orissa Municipal Act, 1950. Challenging the said sanction order, this writ petition has been filed. 5. We have heard Shri P.P. Mohanty, learned counsel for the petitioner as well as Shri R.K. Mohapatra, learned Government Advocate for the State-opposite parties No.1 and 2, and Shri D. Padhi on behalf of Sri S.N. Mishra, learned counsel for opposite party- Bhubaneswar Municipal Corporation, and have perused the record. 6. The submission of learned counsel for the petitioner is that by the notice dated 22.08.2002, the petitioner was required to deposit a sum of Rs.63,000/- which was not deposited by him within fifteen days and hence, the sanction has been accorded for prosecution of the petitioner. According to the petitioner, a perusal of the sanction order dated 29.07.2003 would go to show that the sanction is for prosecution under Section 375 of the Orissa Municipal Corporation Act, 1950 and the same is merely because the petitioner failed to refund the said amount to the Bhubaneswar Municipal Corporation within the time afforded to him in the notice dated 22.08.2002. It is contended that the order has been passed without application of mind and is general in nature, to the extent that it goes to say that the petitioner would be prosecuted under any other offence punishable under any provisions of law in respect of the acts aforesaid, for the taking of cognizance of the said offence by the Court of Competent Jurisdiction. This was without specifying that the sanction for prosecution was being accorded under which other provisions of law. 7. This was without specifying that the sanction for prosecution was being accorded under which other provisions of law. 7. Shri R.K. Mohapatra, learned Government Advocate for the State-opposite parties has vehemently argued that since the petitioner has misappropriated public money, he is liable to be prosecuted, even though he may have later paid back the amount which he has said to have mis-appropriated. However, on being asked, he could not point out any communication or any order whereby allegations of misappropriation have been levelled against the petitioner, as in all communications it is mis-utilization of funds and not misappropriation. 8. To the above facts pleaded, while entertaining the writ application, this Court passed an interim order on 21.08.2003 to the following effect: “xx xx xx In the meanwhile, the impugned order dated 29.07.2003 in Annexure-4 to the writ petition shall remain stayed.” Xx xx xx” In view of above interim order, the sanction order has not been given effect to. It is noteworthy that although more than thirteen years have passed, yet no counter affidavit has been filed by any of the opposite parties. 9. The charge against the petitioner is with regard to misutilization of funds of the Municipality by payment of some rent and conveyance charges which, according to the audit report, was not in accordance with the provisions of law. Admittedly, the petitioner had submitted his reply dated 06.02.2002, which was in response to the notice issued on 25.01.2002. The said notice has at no stage been considered by any of the opposite parties, and despite directions issued by this Court on 30.07.2003 passed in W.P.(C) No.7597 of 2003, filed by the petitioner, no final order has yet been passed by the Bhubaneswar Municipal Corporation after considering the response of the petitioner dated 06.02.2002. 10. The ‘misappropriation’ is distinct from loss, waste, or misapplication of property. The ‘misappropriation’ means utilizing the amounts for purpose other than for what they are meant. Whereas, the ‘misapplication’ means improper, illegal, wrongful or corrupt use or application of funds, property, etc.; a term, which does not of itself import willfulness. 10. The ‘misappropriation’ is distinct from loss, waste, or misapplication of property. The ‘misappropriation’ means utilizing the amounts for purpose other than for what they are meant. Whereas, the ‘misapplication’ means improper, illegal, wrongful or corrupt use or application of funds, property, etc.; a term, which does not of itself import willfulness. In M.A. Narayana Sethy v. Divisional Manager, LIC of India, 1990 (2) SLR (AP) 126, it has been held that ‘misappropriation’ has to be understood: “Utilising the amounts for purposes other than for what they are meant.” Similarly, in Palaicentral Bank v. Joseph Augusti, AIR 1966 Ker 121 , it has been observed, the word ‘misapplication’ means: “wrong or incorrect application, not necessarily a wrongful application, and there can be a perfectly innocent misapplication.” In view of the clear and distinct meaning of ‘misappropriation’ vis-à-vis the words loss, waste or misapplication of property as contemplated under Section 375 of the Orissa Municipal Act, 1950 and taking into consideration the above meaning, it cannot be stated that the petitioner who is a councillor of the municipality has misappropriated the amount. In the event the amount is not being compensated, at best the municipal authority can institute a suit for compensation with previous sanction of the State Government. Such suit could be instituted within three years from the date on which the cause of action arose. 11. Section 375 of the Orissa Municipal Act, 1950, which is relevant for the purpose of this case, is extracted hereunder: “375. Liability for loss, waste, or misapplication of property:- (1) Every Chairperson, Vice Chairperson, councillor, officer or servant of a municipality, including a Government servant whose services are lent to the municipality shall be liable for the loss, waste or misapplication of any money or other property owned by or vested in the municipality, if such loss, waste or misapplication is a direct consequence of any illegal actomission, neglect or Misconduct on his part; and a suit for compensation may be instituted against him any Court of competent jurisdiction by the municipality with the previous sanction of the State Government or by the State Government. Every such suit shall be instituted within three years after the date on which cause of action arose.” (emphasis supplied) The aforementioned provision provides for filing of suit by the Municipality for compensation, with the previous sanction of the State Government, if any loss is caused to the Corporation because of any act of the Chairperson, Vice-Chairperson and Councillor etc. of a Municipality. The notice issued by the Director, Municipal Administration & Ex-Officio Addl. Secretary to Government on 22.08.2002, before the sanction was accorded, only required the petitioner to deposit the amount which was alleged to have been mis- utilized, within fifteen days of the notice, failing which action under Section 375(1) of the Orissa Municipal Act, 1950 would be initiated against the petitioner. The sanction order also states that the petitioner has committed an offence under Section 375 of the Orissa Municipal Act. As such, the sanction order passed under Section 376 of the said Act particularly speaks of prosecution of the petitioner for the aforesaid offence mentioned in the said order dated 29.07.2003. For ready reference, the relevant last three paragraphs of the sanction order dated 29.07.2003 are reproduced below: “xx xx xx And whereas on the basis of Interim Audit Report, Notice was issued to Sri Pratap Jena, Ex-Councillor of Ward No.25 of the Bhubaneswar Municipal Corporation vide Government of Orissa in the Housing and Urban Development Department Letter No.32049 dated 22nd August, 2002 to refund the said amount to the Bhubaneswar Municipal Corporation by the 13th September 2002 which is not refunded by him. And whereas the State Govt. after careful examination of the audit report are pleased to observe that Sri Pratap Jena has committed an offence U/S 375 of the Orissa Municipal Act, 1950 and as such he shall be prosecuted in a Court of Law having competent jurisdiction for the said offence; Now, therefore, the State Govt. do hereby accord sanction as required U/S 376 of the Orissa Municipal Act, 1950 (Orissa Act 23 of 1950) for the prosecution of Sri Pratap Jena, Ex-Councillor of the Bhubaneswar Municipal Corporation for the aforesaid offence committed under said Act and any other offences punishable under other provisions of Law in respect of the acts aforesaid and for the taking of cognizance of the said offence by a Court of Competent Jurisdiction”. (emphasis supplied) 12. (emphasis supplied) 12. It is well settled principle of law laid down by the Privy Council in Nazir Ahmad v. King – Emperor, AIR 1936 Privy Council 253, where it has been held “the rule which applies is that 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. Other methods of performance are necessarily forbidden.” The above quoted principle still holds good. Thereby, applying the same to the present case, if Section 375 of Orissa Municipal Act, 1950 specifies to do a certain things in a certain manner, any other method is absolutely forbidden. In such view of the matter, if the provision prescribes for filing of suit for loss or waste or misapplication of property caused to the municipality then, in that case, previous sanction of the State Government is required for institution of suit after the date on which the cause of action arose. 13. A perusal of the aforesaid sanction order makes it clear that the offence for which the petitioner is to be prosecuted is under Section 375 of the Orissa Municipal Act, 1950, for which the said Section itself states that a suit is to be filed if mis-utilization or loss is caused to the Corporation because of any act of a Councillor. 14. The explanation of the petitioner in his reply dated 06.02.2002 is to the effect that all the expenditure which was made was duly approved, and was pursuant to the resolution passed by the Bhubaneswar Municipal Corporation, which was duly communicated to the State Government, as statutorily required under Section 71(2)(c) of the Orissa Municipal Act, 1950. As such, the submission of the learned counsel for the petitioner that the same cannot be termed as misappropriation by the petitioner, has force. 15. Mr. R.K. Mohapatra, learned Government Advocate, does not dispute the fact that the sanction order has to specify the provisions of law for which the petitioner is to be prosecuted. He has, however, submitted that in the facts of the present case, merely mentioning that the petitioner could be prosecuted under any of the provisions of law in respect of the acts committed by him, would be justified. He further submits that not mentioning the particular provision of law, in the facts of the present case, would not make the sanction order bad. He further submits that not mentioning the particular provision of law, in the facts of the present case, would not make the sanction order bad. 16. Once learned Government Advocate has accepted that the law requires the particular provision to be mentioned in the sanction order itself under which the party is to be prosecuted and the same having not been specifically mentioned in the sanction order, would thus make the sanction order bad. The sanction for prosecution could at best be treated to have been granted under Section 375 of the Orissa Municipal Act, but as the said section itself provides for filing of a suit in case of any loss caused because of misapplication of such act of a Councillor, no prosecution could be contemplated under the said provision. Vaguely mentioning that the petitioner could be prosecuted under any other provisions of law in respect of the act of the petitioner, would itself make the sanction order bad on account of not being specific and being vague. This clearly indicates that there is non-application of mind by the authority concerned. 17. It may be noted that admittedly the required money has already been deposited by the petitioner, which was in response to the notice dated 25.01.2002 issued by the Municipal Corporation. As such, there would now be no question of filing a suit for which sanction under section 375 of the Act could be said to be sought, as there is nothing to be recovered from the petitioner. 18. In Ram Bhual v. Ambika Singh, JT (2005) 12 SC 49, the apex Court held that where specific pleadings in election petition has not been denied by the opposite party in his written statement while answering the pleadings, applying the doctrine of non-traverse, it can be said that on the pleadings, the case of the election petitioner on this aspect is established. In Pyrites Phosphates & Chemicals Ltd. V. State of Bihar, AIR 1998 Pat 57 , the High Court of Patna held as follows: “One cannot be allowed to frustrate the process of the Court by adopting the easy option of non appearing despite valid service of notice. In Pyrites Phosphates & Chemicals Ltd. V. State of Bihar, AIR 1998 Pat 57 , the High Court of Patna held as follows: “One cannot be allowed to frustrate the process of the Court by adopting the easy option of non appearing despite valid service of notice. On the basis of doctrine ‘non-traverse’ i.e. acceptance by non-denial, it was held that the claim of the petitioner is not denied but accepted by the respondents.” Applying the very principle of non-traverse to the present context, since the opposite parties have not filed the counter affidavit in the present case to controvert the contention raised in the writ application, the facts which have been pleaded by the petitioner are deemed to be admitted. Therefore, any argument advanced by the learned counsel appearing for the opposite parties cannot sustain in absence of any pleadings thereof. 19. In view of the aforesaid facts and discussions made hereinabove, we are of the view that the sanction order dated 29.07.2003 passed by the Director, Municipal Administration & Ex- Officio Addl. Secretary to Government is liable to be quashed, and accordingly it is quashed. The writ petition stands allowed.