Ganga Lal vs The State Of Haryana and others

H.R. Sodhi, J.

1.In this writ petition, the validity of the order of the State Government, filed as Annexure I with the writ petition, and published in the extraordinary issue of the Haryana Government gazette of 10th January, 1969, whereby the Petitioner Ganga Jal was removed from membership of the Municipal Committee, Uklana Mandi, District Hissar, has been challenged. A similar order was also passed against Madan Lal Petitioner in Civil Writ 325 of 1869 who was also a member of this Committee and to whom reference is made in the impugned order of the State Government. The order rtlating to Madan Lal was also published in the same issue of the Haryana Government Gazette of 10th January, 1969. Both the writ petitions perferred by Mad in Lal and the Petitioner raise common questions of fact ar.d law except that one of the two chajges relates to this Petitioner only. The reasons given in my judgment in Civil Writ No. 325 of 1969 will, therefore, also form part of this judgment.

A few of the necessary facts may be recapitulated here. General elections to the Committee were held sometime in May, 1964, and nine persons, including the Petitioner, were elected as its members. It is alleged that Petitioner and Madan Lal along with others formed a dominant group in the Committee and Respondent 3 was also a member of the same group at that time. The Petitioner was served with a show-cause notice dated 3rd September, 1968, u/s 16(1) of the Punjab Municipal Act 1911 (thereinafter called the Act) calling upon him to explain within a period of 21 days from the despatch of the notice as to why he be not removed from membership of the Committee. It may be mentioned here that on this very date a separate notice was also issued to Madan Lal Petitioner in the connected case. A copy of the statement of allegations has been filed by the Petitioners as Annexure A/1 with the writ petition and the charges were as under:

(1) Paving of street bearing Khasra Nos. 786 and 787. Shri Ganga Jal while working as President of the Municipal Committee, Uklana Mindi, spent Municipal funds on paving of street bearing khasra Nos. 786 and 787 whereas this area had not been declared as a public street. This was done, in order to please Shri Munshi Ram sitting Municipal Commissioner belonging to his group who represented this locality. The sanction of the Government for utilization of the municipal funds for this purpose was also not obtained.

(2) Construction of a chabutra in front of the house of Shri Madan Lal.

A pacca chabutia was provided in front of the house of Shri Madan Lal the then Vice-President out of municipal funds. This chabutra was provided in order to give a better look to the house and to provide facility for the enterance into the house. This chabutra does not serve any public purpose as the lane is a blind alley and cannot be used as thoroughfare. This is a clear case of mis-utilisation of municipal funds.

Charge No. (2) is common to the Petitioner and Madan Lal and I have dealt with it in detail in the connected judgment also. An explanation was given by the Petitioner and a copy of the same is Annexure ''B'' with the writ petition. As against the first charge, the Petitioner asserted that it was quite wrong to suggest that the street got paved under unanimous decision of the Committee was not a public street and that it was done only to please one Shri Munshi Ram. The attention of the Secietary to Government Haryana, Local Government Department, to whom the explanation was furnished was specifically drawn to resolution no 11 dated 27th February, 1956, whereby it had been declared that all streets then in existence were public streets. It was also stated that the object of getting the street paved by spending an amount of Rs. 2146/- was not only to provide convenience to the residents of the Haryana colony but also to provide a pucca road from the Parbhuwala main road to the bus stand, and that action of the Committee was quite bona fide, just and legal. A sketch plan was also attached with the explanation wherein the position of the street was shown.

In the matter of construction of a pacca chabutra the allegations as made against the Petitioner were stoutly denied. It was pointed out that Gol Mandi'' consisted of 52 shops and one godown. The entire sewage water etc. of this mandi pissed through the drain by the sides of the metalled road outside the gate of this mandi and then used to pass through a drain in between the back wall of the shop; of Imarti Devi wife of Madan Lal, and Shri Hukam Chand on one side and the house and shops of Shri Ram Sarup on the other side. The drain was claimed to have been covered to avoid stagnation of water which became a nuisance to the public passing through the main gate of the mandi. There are other several details stated in the explanation to which it is not necessary to refer in the present case as well.

The allegation of misuser of municipal funds for the construction of the so called chabutra was emphatically denied and it was stated that it cost the Committee only Rs. 20/-. The Petitioner made allegations against Respondent 3 who was, at that time, President of the Committee. The State Government then issued the impugned notification dated 10th January, 1969, whereby it removed the Petitioner from membership of the Committee. Hence the present writ petition.

Mr. Anand Sarup, learned Counsel for the Petitioner, has made the following submissions:

That charge No. (l) has been deliberately carved out to give the Petitioner a bad name and remove him from member ship of the Committee when it is clear from the resolutions passed by the Committee that the street ordered to be paved by its unanimous resolution had been declared to be a public street as early as 1956. It is urged that the Minister Respondent 2 did not apply his mind much less judicial mind to the case and has not stated how the explanation of the Petitioner was unsatisfactory particularly when the resolutions of the Committee declaring the street to be a public street were available to him and had been referred to in the explanation of the Petitioner. The contention is that the impugned order is arbitrary and mala fide.

The charge No. (2) relating to the construction of a chabutra in front of the house of Madan Lal is highly vague and that being so no real opportunity can be said to have been afforded to the petitionner within the meaning of Section 16(l)(g).

That in the circumstances of the case the acts attributed to the Petitioner do not constitute an abuse of his position much less flagrant abuse as a member of the Committee u/s 16(1)(e).

As regards the first contention relating to charge No. (1), there is force in what the learned Counsel for the Petitioner submits. A copy of the resolution passed by the Committee on 27th February, 1956, whereby all lanes and streets in the town as used by the general public were declared as public streets, has been filed as Annexure ''D'' with the writ petition There was also another resolution passed on 28th March, 1956, wherein it was reiterated that the lanes and streets in the town were declared as public streets vide resolution No. 14 dated 27th February, 1956, and that necessary proclamation to that effect had been made. A copy of this resolution is also appended as Annexure ''E'' with the writ petition. It is provided in Section 171(4) of the Act that the Committee may, at any time, by notice fixed up in any street or part thereof not maintainable by the Committee, give intimation of their in-tention to declare the same a public street. It is open to any one interested in the street to lodge an objection thereto and it is stated in the resolution Annexure ''E'' that no objections were filed by any one. A specific mention of these resolutions has been made in para 12 of the writ petition. The State Government in its return does not say anything as to the effect of these resolutions but is content in giving an evasive reply that the inquiry officer in his report had reported that the lane in question had not been declared by the Municipal Committee as a public street. The Minister Respondent 2 has also filed an affidavit but he does not refer to this averment in the petition though he denies the allegation of ulterior motives attributed to him and describes the same as false and baseless. The reply of Respondent 3 on this point is still more amusing It is stated by him that the explanation furnished by the Petitioner (Annexure ''B'') in reply to the show-cause notice and the statement of allegations being wrong and not based on correct facts, the Petitioner was rightly removed from membership of the Committee for having flagrantly abused his position. He does not touch the question as to whether the statement as made in the corresponding para of the writ petition that the street had been declared a public street in 1956 is correct or not. In fact, none of the Respondents has denied this averment except that the Secretary to Government just shifted the responsibility to the inquiry officer who is said to have reported that the street that was got paved was not a public street.

It appears from the executive file that the Assistant Secretary, Local Bodies, had earlier, before the issue of the show-cause notice, made an inquiry at the instance of the Minister and observed that the locality known as "Bhatta" in ward No. 1 owned by Custodian Department, was made pacca at the cost of municipal funds to please one Shri Munshi Ram, Municipal Commissioner. It was stated by him to be a private lane and the suggestion was made that since it had not been declared as a public street, all the members who were signatories to the resolution be surcharged with misuse of municipal funds. It was after this report that the charge-sheet was given to the Petitioner who drew the attention of the State Government to various resolutions of the Committee declaring the street in question to be a public street, and describing the allegations against him to be baseless actuated by political rivalries and personal enmities. When the explanation of the Petitioner was received, an office-note was prepared on the reports of the General Assistant to the Deputy Commissioner Hissar and of the Assistant Secretary which was put up to the Minister, but there is not a word said about the resolutions to which the Petitioner invited the attention of the Government and by virtue of which all the streets within municipal limits had been declared to be public streets. The Assistant Secretary, Deputy Secretary Local Bodies and the Secretary did not seem to have been in favour of any action u/s I6(l)(e) of the Act as the conduct of the Petitioner in no way was considered by these officers to amount to flagrant abuse of his position under any of the charges. The Minister gave a date to the Petitioner for personal appearance but the latter did not turn up. An order was then parsed on 10th January, 1989, by Respondent 2, whereby the Petitioner was remov-ed from membership of the Committee. He relied on some report of the Examiner Local Fund Accounts, dated 7th February, 1968, a copy whereof was never supplied to the Petitioner, where an opinion was expressed that the lane wherein flooring had been got done at the municipal expense vide Committee''s resolution dated 20th August, 1965. was not a public street, and that unless it was so declared, the members noting for the resolution were liable to be surcharged for the amount spent on the execution of the said work. Respondent 2 had before him the explanation of the Petitioner who had drawn the attention of the Government to the various resolutions passed by the Committee in 1956 declaring the street in question to be public street but this Respondent chose not to make any reference to them or to give a finding why those resolutions were not to be accepted, and how it could be said that the resolutions did not relate to the street in question. He contended himself by saying that from the noting of the various officers it had clearly been established that the municipal funds had been misused and that it amounted to flagrant abuse of his position by the Petitioner. He relied on the reports made by different officers earlier to the issue of the charge-sheet, copies whereof had never been supplied to the Petitioner, and did not care to get the facts verified atter the explanation of the Petitioner was received. All the members were party to the resolution about the expenditure to be incurred on payment of the street and he described them: including the Petitioner, as guilty of abuse of power, but observed that the Petitioner being President of the Committee was chief culprit responsible for mis application of municipal funds, flagrantly abusing his official positition. Respondent 2 was exercising quasi-judicial functions and was, therefore, bound to apply his mi d judicially to the chages and the explanation furnished by the Petitioner before depriving the latter of his legal right to hold public office to which he had been duly elected. The only reasonable and proper way was to have kept before him the charges and the explanation of the Petitioner and then give reasons as to how the charges stood proved and the explanation was not satisfactory. In refering to the explanation of the Petitioner, it was stated that the Petitioner had concealed facts and certain relevant things but the strange part of it is that he resolutions to which special reference had been made were not referred to by this Respondent at all. It was not, of course, necessary for him to write an elaborate judgment as that by a regular Court of Jaw but at the same time he should have applied his mind to the points raised and requiring determination by him. Approach of Respondent 2 to this important question was not judicial at all and it is not much on the part of the Petitioner to assert that the Respondent acted almost with a predetermined mind. I must, therefore, hold that the action of Respondent 2 in holding the Petitioner guilty under charge No. (1) relating to the pavement of the street was highly arbitrary.

As regards the other charge about moving the resolution to get the alleged chabutra constructed, the position is almost the same. Respondent 2 cannot rely on the reports of the Deputy Commissioner, Hissar, and the Assistant Secretary, Local Government. The Assistant Secretary who visited the site stated in his report that the drain could easily have been covered by a cheaper device rather than a connected torrace which benefited only Madan Lal the Vice-President, the owner of the house, and it was in this way that the Committee has obviously shown favour to the Vice-President. The same Assistant. Secretary had earlier recommended that no legal action could be taken against the Petitioner or Madan Lal, Vice-President, u/s 16 (l)(e) of the Act 1 Lis was the only correct opinion. Respondent 2 just observed that the explanation of the Petitioner was unsatisfactory and the cost of Rs. 20/ as stated by the Petitioner was not correct, and that the chabutra had been constructed only to please Madan Lal, declaring the Petitioner to be guilty of abuse of his position. It is not understood why the Petitioner alone would be guilty of the said abuse of position if the resolution was passed unanimously. The mere fact that the Petitioner moved the resolution would not fix greater responsibility on him under the law and there was no reason to pick him up for action when no such action had been taken against any other member except Madan Lal The Assistant Secretary who had made the inquiry also did not say that the resolution was illegal and all that was said was that the construction could have been cheaper. Respondent 2 relied on the reports of the General Assistant to the Deputy Commissioner, Hissar, Assistant Secretary Local Government and others contents where of were never communicated to the Petitioner and just gave the finding without making a judicial approach that the Petitioner was guilty of flagrant abuse of his position as a member of the Committee.

The Petitioner had given details in his explanation as to why it was necessary to cover the drain on the back side of the house of Imarti Devi wife of Madan Lal. It was denied that any chabutra had been constructed as such and the averment was that it was only a covering upto the level of the drain. No attempt was made by Respondent 2 to meet the case set up by the Petitioner in his explanation and just gave a finding that the Petitioner was guilty of flagrant abuse of his position. 1 have already observed in Madan Lal''s case that Respondent 2 was not justified in law in relying on the exparts reports of some officers, copies whereof had not been supplied to the Petitioner. The mere fact that the covering gave a better look to the house of Imarti Devi could not with any reasonableness lead to the conclusion that this covering was unnecessary and that it was not within the competence of the Committee to put up such a covering. A Municipal Committee is duty bound to spend its funds on public streets and covering of drains etc. There was indeed no material before Respondent 2 on which a finding could be based that the Petitioner had any hand in the construction of the so called chabutra except being a party to the resolution. No greater duty is cast on the President under the law as on any other member. If the resolution was in any way in excess of the powers conferred on the Committee or not in the interest of public, it was open to the Deputy Commissioner to have suspended the execution of the same u/s 232 of the Act but no such thing was done.

As I have observed in Madan Lal''s case, the whole thing seems to have been raked up because of the party faction in the Committee, and Respondent 2 did not apply his mind and act judicially as he should have done. The order passed by him declaring the Petitioner to be guilty of flagrant abuse of his position under charge No. (2) cannot, therefore be maintained. From whatever aspect the matter is looked at and whatever charge is examined, action of Respondent 2 appears to be more arbitrary than judicial He has, no doubt, given reasons in his order but it is open to this Court on the facts of each case to form its own judgment and decide whether the conduct of a member of the Municipal Committee described as flagrant abuse of his position is really is contemplated by Section 16(1)(e) of the Act. The reasons given by a quasi-judicial authority can be examined in order to determine whether a quasi-Judicial authority is right in law and its action is within the scope of its powers and in consonance with the schema of the Act or rule of law which permits the exercise of such a power. Such an authority must also act in accordance with the principles of natural justice and one of the well-established norms of such principles is that no matter can be taken into consideration in condemning a person which has not been communicated to the person proceeded against. In the instant case Respondent 2 relied on the ex parte reports of the Deputy Commissioner, Hissar, and Assistant Secretary, Local Government, but the contents of those reports were never communicated to the Petitioner.

For the foregoing reasons, the writ petition is allowed and the impugned order of the State Government directing removal of the Petitioner from membership of the Municipal Committee, Uklana Mandi, and further disqualifying him for a period of five years from seeking election quashed. The Respondents will pay the costs of the Petitioner which ate assessed at Rs. 200/-.