B.M. Prakash vs State of Karnataka and Others

Mohan Shantanagoudar

The orders at Annexure-''A'' and ''B'' passed by the Deputy Commissioner, Kolar, and Director of Municipal Administration, Bangalore, dated

19.5.2010 and 13.7.2010 respectively, are called in question in this writ petition.

The petitioner was elected as President of Town Municipal Council, Srinivasapura (4th respondent herein) in the year 2008. M/s. Vodafone

Limited, a Mobile service provider sought permission by its letter dated 22.8.2008 to the Optic Fibre Cable within the limits of Srinivasapura

Town, Kolar District. The town Municipal Council passed a Resolution as per Annexure- R-2'' on 12.1.2009 permitting M/s. Vodafone Limited

to lay Optic Fibre Cable by depositing Rs. 2.81.870/- (escavation charges) with the 4th respondent Municipality. It is specifically resolved that

such amount of Rs. 2.81.370/- was to be paid by M/s. Vodafone Limited either in the form of Demand Draft or by cash to the Municipality. The

estimation prepared by the Town Municipal Council, Srinivasapura, is produced at Annexure- ''R-3'' along with the statement of objections. The

same clearly reveals that the estimation prepared was at Rs. 2.81.870/-. The estimation was prepared and signed by the jurisdictional Assistant

Engineer and the Chief Officer, Town Municipal Council, Srinivasapura. Accordingly, M/s. Vodafone Limited was intimated that permission is

granted to it for laying Optical Fiber Cable in particular areas, subject to certain conditions, including depositing the amount of Rs. 2.81.870/

payable at Srinivasapura, in favour of Chief Officer, T.M.C., Srinivasapura. However, the petitioner being the President of the Municipality wrote

a letter in the letterhead of Town Municipal Council as per Annexure- ''R-5'' on 20th December 2009 directing the Deputy Manager, M/s.

Vodafone Limited, to pay Rs. 5.79.873/- as the cost for digging the land. Along with the said letter, it seems, the petitioner has sent one more

estimation prepared and signed by him along with Junior Engineer of the Municipality as per Annexure- ''R-6'', which discloses that the estimation

prepared by the petitioner was for Rs. 5.79.873/. After receipt of such letter from the petitioner, M/s. Vodafone Limited sent the demand draft of

Rs. 5.79.873/- to the petitioner. The demand draft was in the name of the President, T.M.C., Srinivasapura and the same was dated 6.1.2009. On

the very day, i.e., on 6th January 2009, petitioner opened an account (fresh account) in the name of the President in ING Vysya Bank Ltd., as per

Annexure- R-6 and deposited the demand draft received by him in the said account on 12.1.2009. On the next day i.e., on 13.1.2009, petitioner

withdrew a sum of Rs. 4 lakhs out of such money in cash and deposited a sum of Rs. 2.81.870/- only with the Municipality as is clear from the

document at Annexure-'' R-9''. Remaining amount (i.e., Rs. 2.98.003/-) was with the petitioner.

Since the petitioner committed misappropriation of the funds of Rs. 2.98.003/- in the name of the Municipality by furnishing wrong details to

M/s. Vodafone Limited, a complaint came to be lodged by the 5th respondent and others before various authorities, including Lokayukta. Hence,

the petitioner chose to deposit the remaining amount also with the Municipality on 24.11.2009 (i.e., after the lapse of about nine months). The

respondent No. 5 initiated proceedings before the Deputy Commissioner by filing the petition u/s 42 (10) of Karnataka Municipalities Act, 1964,

for removal of the petitioner from the post of the President. The Deputy Commissioner on perusal of the material on record, passed the order as

per Annexure-''L'' on 24.3.2010 removing the petitioner from the post of the President of the Municipality Petitioner approached this Court by

filing Writ Petition No. 10709/2010 (LB-RES). The same came to he disposed of by quashing the order of the Deputy Commissioner and by

remitting the matter back to the Deputy Commissioner for fresh disposal in accordance with law. This Court at the first instance held that the

petitioner did not have adequate opportunity to defend himself.

After remand, the Deputy Commissioner held enquiry. The petitioner was given opportunity of being heard. He filed his statement of objections

along with the documents. After hearing, the impugned order is passed as per Annexure-''A'' on 19.5.2010 removing the petitioner from the post

of President by exercising jurisdiction u/s 42(10) of the Karnataka Municipalities Act. The said order of the Deputy Commissioner is confirmed by

the Director of Municipal Administration as per Annexure-''B'' on 13.7.2010. Both the orders are assailed in this writ petition.

It is not in dispute that the Municipality passed a Resolution demanding the cost to be imposed by the Municipality for digging the land

(escavation) for the purpose of laying Optic Fiber Cable at Rs. 2.81.870/-. The copy of the Resolution is produced at Annexure- ''R-2'' along with

the statement of objections. The Municipality has prepared the estimation as per Annexure- ''R-3''. Such estimation bears the signatures of

jurisdictional Assistant Engineer and Chief Officer of Town Municipal Council, Srinivasapura. Accordingly, a letter came to be issued by the Town

Municipal Council, Srinivasapura as per Annexure- ''R-4'' on 12.1.2009 directing M/s. Vodafone Limited to deposit Rs. 2.81.870/- either by way

of demand draft or by way of cash in the office of the Municipality. The very letter Annexure-''R-4'' reveals that the demand draft was payable at

Srinivasapura in favour of Chief Officer, Town Municipal Council, Srinivasapura. There cannot be any dispute that neither the President or any

elected representatives have got jurisdiction to open an account in the name of the President or Vice-President etc., The account of Town

Municipal Council would be standing in the name of either the Town Municipal Council represented by Chief Officer or the Chief Officer of Town''

Municipal Council. In the matter on hand, the account of the Municipality stands in the name of the Chief Office. Thus, by the letter vide Annexure-

''R-4'', M/s. Vodafone Limited was directed to deposit an amount of Rs. 2.81.870/- in the form of demand draft payable at Srinivasapura drawn

in favour of Chief Officer, TMC, Srinivasapura. In spite of the same, the President (petitioner) proceeded to issue letter under his own signature as

per Annexure-''R-5'', that too, on the letterhead of the Municipality on 20th of December 2008 falsely stating therein that the Municipality has

prepared an estimation to an extent of Rs. 5.79.873/- and therefore, the said amount should be deposited. In the very letter Annexure- ''R-5'', it is

noted in the hand writing that the demand draft shouid be issued in favour of B.M. Prakash (i.e., petitioner herein). Town Municipal Council,

Srinivasapura. There is no reason as to why such note should be found directing M/s. Vodafone Limited to pay demand draft in favour of B.M.

Prakash (petitioner). Even the estimation prepared by the petitioner as per Annexure-'' R-6'' subsequently for an amount of Rs. 5.79.873/- is also

created to suit his purposes. The same is not signed by jurisdictional Assistant Engineer or by the Chief Officer of the Municipality. But, such

created estimation is signed by the petitioner himself and by a Junior Engineer (who are unauthorised). Thereafter, the petitioner has accepted the

demand draft sent by the Vodafone company in the name of President, Town Municipal Council, Srinivasapura and has opened an account in the

name of President, Town Municipal Council, Srinivasapura on 6.1.2009. There was no reason as to why the petitioner should open a new account

on 6.1.2009 i.e., on the date of receipt of the demand draft in the name of President, Town Municipal Council, Srinivasapura. If the petitioner had

no intention of using the amount for his purpose, he would have simply directed the Vodafone company to send one more demand draft for

appropriate amount by refusing to accept the demand draft sent by the Vodafone company. In stead of doing so, petitioner has accepted the said

demand draft and got it deposited in his account on 12.1.2009. On the next day, i.e., on 13.1.2009, petitioner has withdrawn the amount of Rs. 4

lakhs in cash for ""Self"" and in turn deposited only Rs. 2.81.870/- in cash with the Municipality. These facts clearly go to show that the petitioner

has misutilised his office and earned profits out of such office for his personal use. Only after lodging of complaints by the 5th respondent and

others before various authorities, petitioner chose to deposit the entire amount received by him from Vodafone company on 24.11.2009 i.e., after

the lapse of about 11 months.

The aforementioned facts make it amply clear that the petitioner has created an estimation and wrote a letter to the Vodafone company to give

more amount than required by the Municipality and out of such amount paid by the Vodafone company, he chose to deposit an amount of Rs.

2.81.870/- only with the Municipality and remaining amount of Rs. 2.98.003/- was utilised by the petitioner till 24.11.2009. Thus, the authorities

below have rightly concluded that the petitioner has committed misconduct in discharge of his duties and consequently petitioner in liable to be

removed from the office or the President. Both the authorities have concurrently and rightly heid that the petitioner has failed to discharge his duties

in accordance with law and has misutilised his office. The appreciation of the material on record by the authorities below is just and proper. Even

on re-appreciation of the material on record, this Court comes to the very conclusion as arrived at by the authorities below. Since the misconduct

of the petitioner debars him from holding the post of the President as contemplated u/s 42(10) of the Karnataka Municipalities Act and as he is

removed from the office of the President because of such misconduct, the impugned orders are entitled to be confirmed, inasmuch as, they are just

and proper under the facts and circumstances of the case.

Accordingly, writ petition fails and the same stands dismissed.