Bharti Sonkar vs State of Chhattisgarh and Others

Dhirendra Mishra, J.

The Petitioner is an elected Presiden of Nagar Panchayat, Gunderdehi, District Durg. The Respondent No. 2 issued notice u/s 41 (A) of the Municipalities Act, 1961 (for shot, hereinafter referred to as "Act of 1961'') dated 11th October, 2006 (Annexure P-1) to the Petitioner mentioning therein that on enquiry by the Dy. Director regarding complaint received against her, all the allegations of irregularies have been found to be proved and, therefore, she should show cause a to why she should not be disqualified from the post of President, Na(sic)r Panchayat, Gunderdehi.

The above notice has been impugned by the Petitioner on the grours that:

(i) the notice has been issued by the Under Secretary-respondent No. 2 and the same is without jurisdiction as it has not been issue by the State Government;

(ii) by the impugned notice, the Petitioner has been asked to shv(sic) cause as to why she should not be disqualified from the post President, though the disqualification could be ordered under sub-section (2) of Section 41 (A) of the Act of 1961 only while order in removal from the post of President under Sub-section (1) of Section 41(A) of the Act of 1961. Section 41(A) of the Act of 1961 does not confer power to the State Government to disqualify elected president without removing him from the post of president;

(iii) the Respondents on the basis of ex-party enquiry conducted against the Petitioner behind his back, have arrived to the conclusion that the changes against the Petitioner stands prove and she should be disqualified;

(iv) the Petitioner was elected to the above post as a Congress candidate. There is no material existing or ground exists referable u/s 41(A) of the Act and the notice has been issued malafidely and the same has been issued with preconceived notion at the behest of political pressure without following the procedure prescribed.

In their reply, the Respondents No. 1 and 2 have stated that the instant petition preferred against the show cause notice is not maintainable. The Respondents on strong and weighty reasons after having formed a prima facie opinion to exercise the powers u/s 41 (A) of the Act of 1961 issued the show cause notice to the Petitioner, later on, the enquiry report has also been supplied to the Petitioner on demand, however the Petitioner has not replied the show cause notice till date. The show cause notice has been issued to provide reasonable opportunity of hearing to the Petitioner. Writ petition against show cause notice is not maintainable. No cause of action is available to the Petitioner to challenge the impugned show cause notice and the petition is premature.

Section 41 (A) of the Act of 1961 empowers the State Government to remove an elected office bearer of Nagar Panchayat and the same is to be exercised only after affording sufficient opportunity of hearing to the elected office bearer. The objection of the Petitioner that the Under Secretary cannot issue show cause notice on behalf of the State Government is mis-conceived as the business rules of the State Government (Annexure R-2) empowers the Under Secretary to issue on behalf of the State Government.

The question is whether the writ court can exercise its discretionary jurisdiction in entertaining a writ petition questioning issuance of show cause notice ?

In the recent judgment in the matter of M/s. Siemens Ltd. v. State of Maharashtra, AIR 2006 SCW 6380 in para 10, it has been held thus:

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 Uttar Pradesh Vs. Brahm Datt Sharma and Another, The Special Director and Another Vs. Mohd. Ghulam Ghouse and Another, and Union of India (UOI) and Another Vs. Kunisetty Satyanarayana, but the question herein has to be considered from a different angle, viz. when a notice is issued with premeditation, a writ petition would be maintainable. In such an event, even if the courts direct 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 (UOI) and Others, . 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.

English transcript of show cause notice of Annexure P-1 is as under:

Complaints received against you were enquired by Dy. Director, Local Administration and Development, Raipur and following irregularities were found to be proved:

1- Violation of powers conferred u/s 51 of the Act of 1961 by you is found proved.

2- Tenders were not invited under the rules. Approval of Municipality was not obtained. Rules 5 (5kh)(ch) Rules 6,7 and 11 of President in Council Rules, 1998 were also not followed.

3- You stopped the works by putting unnecessary tips in the files and it was also found that payments to the contractors were deliberately delayed.

4- You and your husband applied illegal pressure on officers and employees of the Municipality and compelled them to work against the rules. Irregularities in the construction of Pay and Use Latrines and in construction of Muktidham were found proved.

5- Violation of Section 51 and 83 of the Municipalities Act, 1961 and rules 5, 7 and 11 of President-in-council Rules 1998 have been found proved against you.

On the basis of the aforesaid irregularities, you are served with the notice u/s 41(A) of the Act of 1961 and called upon to show cause as to why you should not be disqualified from the post of President of Nagar Panchayat, Gunderdehi. Reply to the above notice should reach to the Special Secretary, Local Government and Development by 30th October, 2006 at 11.00 a.m.

From the contents of the notice, it is manifestly clear that the same has been issued with premeditation and, therefore, in my considered opinion, the instant writ petition against the above show cause notice is maintainable.

Section 41(A) of the Act of 1961 reads as under:

41-A. Removal of President or Chairman of a Committee - (1) The State Government may, at any time, remove a President, Vice President or a Chairman of any Committee, if his continuance as such is not, in the opinion of the State Government, desirable in public interest or in the interest of the Council or if it is found that he is incapable of performing his duties or is working against the provisions of the Act or any rules made thereunder. (2) The State Government may, while ordering the removal under Sub-section (1), also order that such President, Vice President or Chairman of any Committee shall be disqualified to hold such post for the next term:

Provided that no such order under this Section shall be passed unless a reasonable opportunity of being heard is given.

Sub-section (1) of Section 41(A) of the Act of 1961 empowers the State Government to remove an office bearer of the Committee in the contingencies mentioned in the above section. Exercise of the above power has serious civil consequence on the status of the office bearer and the same has to be exercised objectively keeping in view the nature of power and the consequences that flow on its exercise and also considering that the office bearer to be removed is an elected office bearer of a democratic institution and the consequences not only affect the office bearer but the electorate of the constituency. The Power is to be exercised with due care and caution only in very strong and weighty reasons and the same cannot be exercised without affording an opportunity of hearing and the provision has to be strictly construed.

The word used in Sub-section (1) of Section 41 (A) of the Act of 1961 is ''Removal of President or Chairman of a Committee'' however in the show cause notice the Petitioner has been called upon to show cause as to why she should not be disqualified (Nirharit) from the post of President of Nagar Panchayat, Gunderdehi. Thus, on the face of it, the word used in the show cause notice does not conform to the word used in the section. The word ''disqualification'' has been used in Sub-section (2) of Section 41 (A) of the Act of 1961 which confers power upon the State Government that while ordering removal under Sub-section (1), the State Government may also order that such officer bearer shall be disqualified to hold the post for the next term provided that no such order under this Section shall be passed unless a reasonable opportunity of being heard is given. From bare reading of the above notice, it clearly transpires that the notice is, in fact, under Sub-section (2) of Section 41(A) of the Act of 1961 and the same has been issued without removal of the Petitioner. Thus in the considered opinion of this Court, the impugned show cause notice is not in accordance with Section 41(A) of the Act of 1961.

From bare perusal of the impugned show cause notice, this Court is satisfied that the authority has already applied its mind and has formed its opinion that the allegations against the Petitioner stand proved. It is not in dispute that the aforesaid opinion has been formed on the basis of an enquiry conducted by the Dy. Director which has been conducted behind the back of the Petitioner without affording him any opportunity of hearing. Therefore, I have no hesitation to hold that the statutory authority has already made up its mind to remove the Petitioner from the post of President of the Committee and to disqualify him and the issuance of show cause notice is a mere formality.

For the aforesaid reasons, the instant petition is allowed. The show cause notice of Annexure P-1 is hereby quashed. It is made clear that it would be open to the Respondents to conduct enquiry in accordance with Section 41 or any other provision under the Act of 1961 for any complaint received against the Petitioner in accordance with law.

No order as to costs.