Ku. Sunanda Mishra vs State of Chhattisgarh and Others

Satish K. Agnihotri, J.—The petitioner, by this petition seeks to quash the entire proceedings initiated u/s 41 of the Chhattisgarh Municipalities Act, 1961 (for short "the Act, 1961") including the notice dated 12-6-2008 (Annexure P-1). Learned Counsel appearing for the petitioner submits that the petitioner is elected Councilor from Ward No. 1 of Nagar Panchayat Charama, District Kanker. On the basis of resolution dated 20-5-2008, a show-cause notice dated 12-6-2008 was issued to the petitioner by the Collector, Uttar Bastar, Kanker. In the said notice, it has been mentioned that on 20-5-2008, a resolution was passed by the Nagar Panchayat and the Chief Municipal Officer by letter dated 21-5-2008 forwarded the same to the Collector for removal of the petitioner from the post of Councilor. Learned Counsel further submits that before passing the resolution dated 20-5-2008, the petitioner was not informed about the meeting of the Nagar Panchayat.

Shri Sharma, also submits that under the provisions of Section 41 (3) of the Act, 1961, no resolution recommending removal of the Councilor shall be passed by the Nagar Panchayat, unless Councilor has been given reasonable opportunity to show cause. Therefore, the impugned notice dated 12-6-2008 as well as the entire proceedings initiated against the petitioner under the provisions of Section 41 of the Act, 1961 are not sustainable and the same may be quashed. Learned Counsel in support of his contention placed reliance upon the decision of this Court rendered in Dr. Vimal Chopra Vs. State of Chhattisgarh and others, W.P. (C) No. 2788/2007, decided on 29-9-2008.

On the other hand, learned Counsel appearing for the State supported the impugned action taken by the respondent-Authorities.

I have heard learned Counsel appearing for the parties, perused the pleadings and the documents appended thereto.

This Court in Bharti Sonkar Vs. State of Chhattisgarh and others, W.P. No. 5853/2006, decided on 4-3-2008, reliance was placed on a decision of the Supreme Court in Siemens Ltd. Vs. State of Maharashtra and Others, wherein it was held that:--

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 issue 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.

This Court in Dr. Vimal Chopra (supra), observed as under:--

In view of the foregoing, it is evident that the respondents/ authorities have formed opinion with regard to certain allegations in respect of financial irregularities, as have been found proved without affording proper opportunity of hearing to the petitioner to put forward his case. Thus, the impugned show-cause notice dated 12-4-2007 (Annexure P-3) is vitiated and is accordingly quashed. However, it is open to the authorities/respondents to conduct an enquiry, in accordance with the provisions of Section 41A of the Act, 1961 or any other provisions of the Act, 1961, if so advised.

Applying the well settled principles of law to the facts of the present case, it is evident that the impugned show-cause notice was issued by the Collector, Uttar Bastar, Kanker, to the petitioner after having recorded the conclusion as under:-

In view of the decision of this Court in Dr. Vimal Chopra (supra), and for the reasons stated hereinabove, the impugned notice dated 12-6-2008 (Annexure P-1) is vitiated and is accordingly quashed. However, liberty is reserved to the respondent-authorities to initiate appropriate proceedings against the petitioner under the provisions of the Act, 1961, if so advised. In the result, the writ petition is allowed to the extent indicated above. No order as to costs.