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2019 DIGILAW 873 (MP)

RAKESH SONI v. STATE OF M. P.

2019-12-17

VANDANA KASREKAR

body2019
ORDER MS. VANDANA KASREKAR, J. – The petitioner has filed the present petition challenging the order dated 29-5-2019, passed by the respondent No. 1. 2. The petitioner is an elected councilor of ward No. 12 and nominated President of Khilchipur Municipality of Rajgarh District, nominated under section 37(2) of the M. P. Municipalities Act of 1961 (hereinafter referred to as .... “the Act”). 3. That, after the change of guard in the governance of State on December, 2018, the petitioner’s nomination in an astonishing manner was cancelled vide order dated 25-1-2019 without there being any cogent reason. The petitioner, thereafter, approached to this Court by filing a writ petition bearing W. P. No. 2080/2019, wherein this Court was pleased to stay the impugned order of cancellation of nomination of the petitioner. That, during the pendency of the said writ petition, the respondent State Government, withdrew its order of cancellation of nomination and, therefore, vide order dated 27-2-2019 the said writ petition was disposed of being rendered infructuous. 4. That, thereafter, within 10 days of the disposal of the said writ petition i.e., on 8-3-2019 again in a flimsy and autocratic manner the petitioner’s nomination was cancelled. The petitioner, therefore, again filed a writ petition bearing W. P. No. 5456/2019. The said writ petition was allowed vide order dated 15-5-2019 by this Court and order of cancellation of nomination of the petitioner was set aside. 5. The respondent State after failing in all the tactics for cancelling the nomination of the petitioner from the post of President of the Khilchipur Municipality again in a biased, premeditated and prejudiced manner issued a show cause notice and alleged irregularities/illegalities committed during the tenure or the petitioner’s presidency. Being aggrieved by that order, the petitioner has filed the present petition. 6. Learned counsel for the petitioner submits that the notice impugned is without any authority of law as it nowhere mentions under what provisions of the Act, the said notice has been issued. The language used in the impugned notice itself reflects that the issuing authority vitiated by bias and premeditation has already confronted the petitioner with a definite conclusion of his alleged guilt. He further submits that the impugned notice has been issued with a mala fide intention as the petitions filed by the petitioner were allowed by this Court. The language used in the impugned notice itself reflects that the issuing authority vitiated by bias and premeditation has already confronted the petitioner with a definite conclusion of his alleged guilt. He further submits that the impugned notice has been issued with a mala fide intention as the petitions filed by the petitioner were allowed by this Court. He further relied on the judgment passed by the Apex Court in the case of Siemens Ltd. vs. State of Maharashtra and ors., reported in (2006) 12 SCC 33 and the judgment passed by this Court in the case of Kanta Yogesh Sadarang vs. State of M. P., reported in 2019 SCC Online MP 295. 7. The respondents have filed their reply and in the reply the respondents have stated that ordinarily, extraordinary jurisdiction under Article 226 of the Constitution of India should not be exercised for quashing the show cause notice. 8. For the said purpose, learned Govt. Advocate for the respondent/State relied on the judgment passed by the Apex Court in the case of Union of India and anr. vs. Kunisetty Satyanarayana, reported in (2006) 12 SCC 28 and Rajesh Kathuria vs. State of M. P. and ors., reported in 2012(4) M.P.L.J. 346 . The respondents further submits that the present petition being pre-mature deserves to be dismissed. 9. The respondents have further stated that one Mr. Mohammad Tahir vide letter dated 9-4-2019 informed the Commissioner, Urban Administration Department, Bhopal about the various irregularity in the functioning of Nagar Parishad, Khilchipur (M. P.). Taking cognizance of the letter dated 9-4-2019, the Additional Commissioner, Urban Administration and Development vide order dated 10-4-2019 duly empowered and exercising power under section 322 of M. P. Municipalities Act, 1961 constituted a three member committee to investigate about the irregularities in Ward No. 1, 4, 13 and 14 Khilchipur (M. P.). The complainant Mr. Mohammad Tahir vide letter dated 15-4-2019 brought to the knowledge of Joint Director, Urban Administration and Development Department about various other irregularities in the functioning of Nagar Parishad, Khilchipur (M. P.). The three members committee conducted a preliminary enquiry on the issues raised by the complainant and submitted its report to the Commissioner, Urban Administration and Development vide letter dated 24-4-2019. The three members committee conducted a preliminary enquiry on the issues raised by the complainant and submitted its report to the Commissioner, Urban Administration and Development vide letter dated 24-4-2019. Taking cognizance of the preliminary enquiry report, the show cause notice dated 29-5-2019 was issued by the Deputy Secretary, Urban Development and Housing Department after obtaining concurrence of the State of M. P. (Governor) in his name. 10. The show cause notice was issued by the State Government to ascertain whether a detailed enquiry as contemplated under section 326 of the Act has been made or not. By issuance of show cause notice an opportunity of hearing is provided to the petitioner before proceeding ahead in matter on the basis of preliminary enquiry report. It has further been submitted that if the contents of show cause notice are controverted then a detailed enquiry would be conducted by the State of M. P. and on the basis of report of the detailed enquiry further actions would be taken by the State of M. P. That, the FIR has already been registered against the petitioner under section 353 read with section 34 of Indian Penal Code. 11. The petitioner has also filed a rejoinder to the reply submitted by the respondents and denied the allegations made in the reply. 12. Heard learned counsel for the parties at length and perused the record. 13. The petitioner is an elected Councillor of Ward No. 12 and nominated President of Khilchipur Municipality of Rajgarh District. He filed the present petition challenging the show cause notice dated 29-5-2019. Earlier the nomination of the petitioner was cancelled by the respondent State Government vide order dated 25-1-2019. The said order was challenged by the petitioner by filing W. P. No. 2080/2019. That, during the pendency of the said writ petition, the State Government withdrew its order of cancellation of nomination and again nominated the petitioner as President. Therefore, the said writ petition was disposed of as having been rendered infructuous. Thereafter, within a period of 10 days of the disposal of the writ petition, the respondents again cancelled the nomination of the petitioner. Therefore, another writ petition was filed bearing W. P. No. 5456/2019, and the said writ petition was allowed vide order dated 15-5-2019. Therefore, the said writ petition was disposed of as having been rendered infructuous. Thereafter, within a period of 10 days of the disposal of the writ petition, the respondents again cancelled the nomination of the petitioner. Therefore, another writ petition was filed bearing W. P. No. 5456/2019, and the said writ petition was allowed vide order dated 15-5-2019. That the respondent State after failing in all the tactics for cancelling the nomination of the petitioner from the post of President of the Khilchipur Municipality again in biased, premeditated and prejudiced manner issued a show cause notice to the petitioner alleging certain irregularities/illegalities committed during the tenure of the petitioner’s presidency. 14. From bare perusal of the said show cause notice, it has been found that the respondents have conducted a preliminary enquiry against the petitioner and has found him guilty and certain allegations has been made some of which reads as under : – 15. The contents of the show cause notice itself shows that petitioner was found guilty by the respondents and the issuance of show cause notice is mere formality. The Apex Court in the case of Siemens Ltd. vs. State of Maharashtra and ors. (supra) in Para 9 has held as under : – 9. Although ordinarily a writ Court may not exercise its discretionary jurisdiction in entertaining a writ petition questioning a notice to show cause unless the same inter alia appears to have been without jurisdiction as has been held by this Court in some decisions including State of U. P. vs. Brahm Datt Sharma and anr., AIR 1987 SC 943 , Special Director and another vs. Mohd. Ghulam Ghouse and another, (2004) 3 SCC 440 and Union of India and another vs. Kunisetty Satyanarayana, 2006(12) SCALE 262 , but the question herein has to be considered from a different angle, viz., when a notice is issued with pre-meditation, a writ petition would be maintainable. In such an event, even if the Courts directs the statutory authority to hear the matter afresh, ordinarily such hearing would not yield any fruitful purpose [See K. I. Shephard and others vs. Union of India and others, (1987) 4 SCC 431 = AIR 1988 SC 686 ]. It is evident in the instant case that the respondent has clearly made up its mind. It explicitly said so both in the counter affidavit as also in its purported show cause. It is evident in the instant case that the respondent has clearly made up its mind. It explicitly said so both in the counter affidavit as also in its purported show cause. 16. Similarly this Court in the case of Kanta Yogesh Sadarang vs. State of M. P. (supra), wherein similar show cause notice was under challenge, in Para 17 of its judgment has held as under : – 17. Under the circumstances, this Court finds that the notice in question reasonably discloses pre-meditation on the part of the issuing authority. Thus, the contention of the petitioner that whatever follows hereinafter would be a hallow formality, assumes significance as pre-meditation on the part of the issuing authority would vitiate the notice on the grounds of bias in view of the judgments referred to hereinabove by the learned counsel for the petitioner. In particular, the observations of the Supreme Court in the case of Siemens Limited (supra) where it has held that a notice issued with pre-meditation can be interfered with in a writ petition. Also, in Oryx Fisheries (P) Ltd., the observations of the Supreme Court in paragraph 32 that while issuing a show-cause notice, the authorities must take care to manifestly keep an open mind as they are to act fairly in adjudicating the guilt or otherwise of the person proceeded against and specially when such authority has the power to take a punitive step against the person after giving him a show cause notice, assumes great significance in the facts and circumstances of the present case. Here also, the notice has revealed the mind of the issuing authority which is the State Government and it has so been worded that it does not give a reasonable person the impression that he would be proceeded against fairly in the enquiry that would follow. The judgments cited by the learned Advocate General is undoubtedly what the rule must be in all those cases where a party approaches the Court against a show-cause notice and the Courts must normally decline to interfere where an adequate opportunity is given to the person to whom such notice is issued to give a reply to the same. The judgments cited by the learned Advocate General is undoubtedly what the rule must be in all those cases where a party approaches the Court against a show-cause notice and the Courts must normally decline to interfere where an adequate opportunity is given to the person to whom such notice is issued to give a reply to the same. The judgments stated hereinabove by the learned counsel for the petitioner carves out an exception to this rule where the notice itself is vitiated by bias, which is apparent in the notice itself and straightaway gives the impression that a fair enquiry/trial into the charges levelled against such a person is not possible on account of bias. 17. Learned counsel for the petitioner further argues that earlier the respondents on two occasions has cancelled the nomination of the petitioner and he challenged the said order and he thereafter preferred writ petitions before this Court and during pendency of one of the petition, order of cancellation was withdrawn and in second writ petition this Court has set aside the order of nomination and, thereafter, the said show cause notice has been issued in a biased and pre-meditated manner holding that the enquiry was held against the petitioner and he was found guilty in the said enquiry. The enquiry was conducted behind the back of the petitioner and, therefore, issuance of the show cause notice on the basis of the said enquiry report is merely a formality. The respondents have nowhere stated in the show cause notice that under which provisions of law the said show cause notice was issued to the petitioner. Specific pleading has been made by the petitioner in the petition. However, the reply filed by the respondent is silent on the said point and, therefore, notice issued to the petitioner is without any authority of law. The aforesaid judgment relied by the learned counsel for the respondent would not be applicable in the present case. 18. The Supreme Court in the case of Union of India and anr. (supra) which the respondent has relied upon, in the said judgment also it is stated that if the show cause notice has been found to be wholly without jurisdiction or otherwise wholly illegal then certainly the Court can interfere into the matter under Article 226 of the Constitution of India. 19. In view of the aforesaid, I allow this writ petition. 19. In view of the aforesaid, I allow this writ petition. The impugned notice dated 29-5-2019 is, hereby, set aside. Petition allowed.