Mateen Ahmed vs Director of Municipal Administration

A.S. Bopanna, J.—The petitioner is before this Court assailing the order dated 28.11.2011 impugned at Annexure-A and the order dated 01.01.2011 impugned at Annexure-B to the petition.

The petitioner was elected as a Councilor of Afzalpur Town Panchayat. On a complaint made by the fourth respondent herein alleging that the petitioner has incurred disqualification under Section 16(1)(2)(k) of the Karnataka Municipalities Act (for short ''the Act''), proceedings in No. DUDC/MISC/40/2007-2008 was initiated against the petitioner herein. In the said proceedings, the Deputy Commissioner has arrived at the conclusion that the payments received by the petitioner is during the period when he was a Councilor and as such, incurred disqualification. Hence, by the order dated 01.01.2011, the Deputy Commissioner has disqualified the petitioner for the remaining period as a Councilor. Claiming to be aggrieved by the said order, the petitioner had filed an appeal before the first respondent - Director of Municipal Administration. By the order dated 28.11.2011, the order passed by the Deputy Commissioner has been upheld. The said orders are assailed herein.

The learned Senior counsel representing the petitioner would contend that both the orders passed are without opportunity to the petitioner. The order passed by the Deputy Commissioner was in a proceeding where the complainant himself did not want to prosecute the matter and as such, in that circumstance, the petitioner had not putforth any contentions therein but the matter was taken up and considered. Before the Appellate Authority, the application for interim relief was heard at that stage, but the appeal itself has been disposed of against the petitioner and as such, the same is not sustainable. To contend in that regard, the learned Senior counsel has referred to the affidavit sworn to by late Pramodh Kulkarni, Advocate who had represented the petitioner herein in the said proceedings and has contended that the matter in fact before the Appellate Authority was for considering the interim application. In that light, it is contended that both the proceedings are not justified. Above all, learned Senior counsel would point out that the petitioner has resigned as a Councilor of Afzalpur Municipal Council with effect from 09.12.2010 and the said resignation has been accepted. Therefore, the disqualification in any event should not visit the petitioner in terms of the provision contained in Section 16 of the Act to remain as a hindrance for all time to come which requires clarification.

Having taken note of the said contention, one other aspect which is also to be kept in view is that even if the disqualification as made by the order dated 01.01.2011 is taken into consideration, a period of 5 years would elapse on 31.12.2015, after which period, disqualification in any event would come to an end and would not act as a bar. However, the learned Senior counsel for the petitioner would point out that unless there is clarity on this aspect, through the orders passed by the authority or by this Court, persons with certain vested interest may utilize the order if there is no clarification in that regard. Therefore, taking into consideration all these aspects of the matter and taking into consideration the contention putforth, the matter requires to be examined.

At the outset, the order dated 01.01.2011 which is passed by the Deputy Commissioner no doubt though would refer to the complaint as made by the fourth respondent would also disclose that the reference is made to the payment that had been received by the petitioner on 21.09.2007 and in that light, had arrived at the conclusion that the payments as received would indicate that there was conflict of interest and the provision had been violated. Even if such finding of the Deputy Commissioner is kept in view, in the light of the order sheet that is maintained in the said proceeding which has been produced along with the petition, the same would disclose that the order in effect is a default order. The Deputy Commissioner has taken note that the complainant had sought leave to withdraw the complaint and had also remained absent. During the earlier date of hearing, the learned counsel for the petitioner was also absent. Therefore, in that circumstance, on 01.01.2011 when the case had been listed, absence of the advocate for the petitioner was noticed and having arrived at the conclusion that sufficient time and opportunity had been granted has thereafter proceed to pass the order. It is in such order, the payment as received by the petitioner was taken note and conclusion had been arrived to indicate that the petitioner had acquired disqualification.

When serious consequences of disqualification would visit a person, an appropriate opportunity needs to be granted. No doubt, it does mean that the parties can take the proceedings for granted. However, in the instant case, what is to be kept in view is that, on the earlier date of hearing, the complainant had indicated that he does not wish to prosecute the complaint and had made attempts to withdraw the same. If that be the position, the absence of the learned counsel for the petitioner herein, on the next date of hearing certainly would be understandable since there is likelihood of assuming that complaint would not be proceeded with. Therefore, keeping these aspects in view and also taking into consideration the serious consequences of disqualification, I am of the opinion that the payment referred in the order as the one said to have been disbursed to the petitioner would have to be explained by the petitioner before the competent authority so as to enable the competent Authority to come to a conclusion as to whether such payment had been received towards any work performed relating to the Municipal Council. Therefore, these are contentions which would have to be putforth before the authority and in that regard, an opportunity is required to be granted to the petitioner. Further, subsequent developments are also the aspects which weigh in the mind of this Court to ensure that the proceedings is to be considered afresh before the Deputy Commissioner.

As noticed, the provision contained in Section 16(2) of the Act would indicate that the disqualification as ordered would last for a period of five years from the date of the finding. Since presently the matter is being remitted to the Deputy Commissioner and as already indicated above, since the petitioner had resigned as Councilor on 09.12.2010 and also the original period of disqualification from the date of allegation would come to an end on 31.12.2015, it would also be appropriate for the Deputy Commissioner to keep these aspects in view and come to a conclusion as to whether the matter requires to be proceeded further or not. The order in that regard could be made by the Deputy Commissioner.

Therefore, for all the above stated reasons, the orders dated 01.01.2011 and 28.11.2011 are set aside. The matter is remitted to the Deputy Commissioner to restore the case No. DUDC/MISC/40/2007-2008 on file, issue notice to the petitioner if the Deputy Commissioner deems it necessary to proceed further and thereafter deal with the matter in accordance with law.

The petition is accordingly disposed of.