Sri H.K. Halesh and Others vs The State of Karnataka and Others

A.S. Bopanna, J.—The petitioners are before this Court assailing the order dated 07.02.2011 which is impugned at Annexure-A to the petition. By the said order the third respondent has disqualified the petitioners herein from being the members of the Town Municipal Council, Harappanahalli, Davanagere District on the allegation of certain benefits being extended to their kith and kin. Heard the learned counsel appearing for the parties and perused the petition papers.

The petitioners are before this Court in the third round of litigation. At the first instance one of the petitioners was before this Court in W.P. No. 29388/2009. The said writ petition was disposed of only with a direction to consider the rival allegations which have been made. Insofar as the instant proceedings, the petitioners at an earlier instance had assailed the order dated 09.12.2009 by which the petitioners had been disqualified (Annexure-M). Since the said order was a non-speaking order, this Court while disposing of W.P. Nos. 108-112/2010 on 02.02.2010 had set aside the order. That apart when the parties were before the Division Bench of this Court in W.A. Nos. 3802-3805/2010 and 3999/2010 relating to the issue of disqualification, certain observations were made by this Court. Though it was considering the correctness or otherwise of the opinion of the Deputy Commissioner relating to the maintainability of the petition for disqualification based on the contention of the petitioners herein that the proceedings for disqualification u/s 16(1)(k) of the Municipal Corporations Act 1964 (''the Act'' for short) is not maintainable, it was held that it would be open for the Deputy Commissioner to consider the said issue as one u/s 16(1) of the Act and not necessarily under clause (K). It is in that circumstance, the Deputy Commissioner has subsequently entertained the proceedings and passed the impugned order dated 07.02.2011.

Therefore, though the learned counsel for the petitioner strenuously contended about the maintainability by referring to the provision in Section 16(1)(k) of the Act since the allegation based on which the proceedings has been initiated by the petitioner does not fall under the said provision and the learned counsel for the respondent sought to justify the action as one falling u/s 16(1)(k), I am of the opinion that the said question need not be adverted to in detail in view of the observations which has already been made by the Hon''ble Division Bench of this Court. At this juncture, it would not be open for me to express any other opinion on that aspect.

Hence, in that circumstance, all that requires to be considered in the instant case is, even if the allegation made against the petitioners is brought under any one of the clauses of Section 16(1) of the Act, whether the allegation as made would be sufficient to hold the petitioners as being disqualified from being members of the Town Municipal Council.

To consider this aspect of the matter, what is to be noticed is that the allegation against the petitioners is that out of the funds to the extent of 18% which is to be disbursed to the eligible unemployed persons belonging to SC/ST, it is alleged that certain relatives of the petitioners have been given the benefit. Since such persons are stated to be the relatives of the petitioners herein, the question is whether that in itself would incur disqualification unless it is shown that they were responsible for the said disbursement and had either expressly or impliedly exerted their influence in that regard. To this effect, the Chief Officer at the first instance had addressed a communication to the Deputy Commissioner bringing these aspects to the notice on 04.12.2009 wherein the Deputy Commissioner was requested to look into this aspect u/s 306 /316 and Section 16(1)(K) of the Act but without further details. Pursuant thereto, the instant proceedings have been held. It is therefore necessary to notice the nature of the proceedings whereunder the benefits have been given to certain of the persons who are stated to be the relatives of the petitioners. In that regard, it cannot be in dispute that the disbursement of the benefits under the scheme in question had also arisen for consideration in the meeting of the Town Municipal Council on 02.02.2009 (Annexure-K). Among other subjects, the said subject was also discussed as Subject No. 12. On consideration of the same, a decision is taken by the general body of the Town Municipal Council with regard to the disbursement of the amounts to the persons who are indicated in the said resolution. It is pursuant to the said resolution, the benefits have been awarded.

In such situation, the question is as to whether the petitioners alone could be held responsible for the resolution that was passed by the Town Municipal Council. In that regard, a perusal of the order passed by the Deputy Commissioner dated 07.02.2011 which is impugned would indicate that the major portion of the order only narrates the earlier circumstance under which the proceedings had taken place and in that circumstance, the consideration was being made by the Deputy Commissioner. Thereafter the reference made in the order is that the persons who have received the benefit i.e., the financial assistance towards the purchase of auto rickshaws are relatives of the petitioners. The nature of the relationship between the said persons and the petitioners have been referred to and in that context, the Deputy Commissioner has arrived at the conclusion that since the kith and kin of the petitioners have received the benefit, the petitioners are to be disqualified and the order was passed. Therefore, the question is as to whether such consideration made by the Deputy Commissioner is sufficient for passing an order of disqualification which visits the petitioners with serious consequence.

In my opinion, when the Deputy Commissioner has not considered the fact as to whether the other council members were also influenced by the petitioners to arrive at such a particular decision when the resolution was of the entire body; as to whether any other beneficiary who was more qualified has been left out to grant the same in favour of the relatives of the petitioners and above all, whether the disbursement made was contrary to the scheme which had been notified and whether the beneficiaries were otherwise not entitled and would not have qualified were in fact required to be addressed by the Deputy Commissioner to come to the conclusion on the aspect that the petitioners have exerted their influence and thereafter managed to grant the benefits to their kith and kin. First and foremost, as already indicated, these aspects have not been considered by the Deputy Commissioner.

In that light, even to consider this aspect, the circular dated 25.06.2007 as at Annexure-L provides with regard to the nature of disbursement of the amount and the persons who would be eligible to receive such benefits. In the instant case, even on the first instance, the Chief Officer does not point out if the circular has not been followed or the benefits have been granted contrary to the said scheme. That apart the manner in which the beneficiaries have been chosen has not been referred nor does it indicate that it was only due to the influence of the petitioners they were selected with reasons. If this aspect of the matter is kept in view and the resolution dated 02.02.2009 is perused, the said meeting of the Town Municipal Council considered several subjects from Subject No. 11 to 15 and thereafter the resolutions were passed including subject No. 12. Therefore, the said meeting in any event was not convened only for the purpose of considering the present subject so as to grant benefit to certain relatives of the petitioners. In the usual course, when the Town Municipal Council having quorum had considered several subjects and had resolved in that manner. Thus, when there is no substantial evidence on record to indicate that the petitioners had indulged in favouritism and nepotism merely because the beneficiaries who were otherwise qualified and chosen to be granted the benefit were the kith and kin, no allegation could be made against the petitioners that it was granted at their instance.

That apart as already noticed, no other beneficiary who claims to be more qualified than the relatives of the petitioners had made any complaints either to the Chief Officer or to the Deputy Commissioner and the same in any event has not been brought on record before the Deputy Commissioner or before this Court. Therefore, in such circumstance, when the requirement of the scheme notified vide the circular dated 25.06.2007 had been adhered to and the decision was taken by the entire body of the Town Municipal Council and thereafter the benefits had been granted to the beneficiaries, a serious consequence of disqualification could not have been visited upon the petitioners without sufficient materials and evidence. One other aspect of the matter which also requires to be noticed is that the Chief Officer while bringing to the notice of the Deputy Commissioner by the communication dated 04.12.2009 had also referred to Section 306 and 316 of the Act where the Deputy Commissioner could have exercised the power. If that be so and in such circumstance, when the entire body of the Town Municipal Council had resolved, even if there was some evidence to indicate that such resolution was at the instance of the petitioners, it would have been open for the Deputy Commissioner at that stage to suspend such resolution on having sufficient material for the said purpose. Even that aspect of the matter has not been considered by the Deputy Commissioner.

For all the above stated reasons, I am opinion that the order dated 07.02.2011 is not sustainable. The same is accordingly quashed.

These petitions are allowed in the above terms. No order as to costs.