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Judgment
B.S. Patil
In this writ petition, petitioner is calling in question the order dated 17.10.2011 passed by the 2nd respondent-Deputy Commissioner, Shimoga vide Annexure-C. By way of amendment of the relief in the writ petition, petitioner is also calling in question the order passed by the Appellate Authority namely, the Director of Municipal Administration-respondent No. 1 herein who has confirmed the order passed by the Deputy Commissioner and has dismissed the appeal filed by the petitioner. The said order of the Appellate Authority is produced at Annexure-L. The grievance in the writ petition arises in the following background:
The petitioner is elected as Councilor of the Pattana Panchayat. Jog-Kargal of Sagar Taluk in Shimoga District it; the election held on 30.11.2008, the election for the pose of president for the second term was held on 16.09.2011, The petitioner contested and got elected. On certain allegations made, a police complaint had been lodged against the petitioner alleging acts of fabrication of documents and the offence of forgery. The police after investigation, filed charge sheet. Upon trial, the Judicial Magistrate, First Class passed a judgment dated 24.08.2011 convicting the petitioner for the offences punishable under Sections 447, 468, 471, 473, 474 and 420 IPC. As regards the sentence to be imposed, the case was adjourned. On 21.09.2011, the petitioner was sentenced to undergo imprisonment for offences under Sections 468, 471, 473, 474 and 420 IPC. The sentence of imprisonment ranges from 30 days to three years for different offences.
The learned Judge has suspended the sentence by passing an order on the same day that is on 21.09.2011. It is also necessary to notice that the petitioner has preferred an appeal before the learned District and Sessions Judge, Shimoga in criminal appeal No. 133/2011 challenging the conviction and sentence awarded against him and the appellate Court has passed an interim order on 01.10.2011 which reads as under:
The Conviction Judgment of the trial Court is hereby suspended on the following conditions:
a. That the petitioner shall execute a personal bond of Rs.50,000/- with one surety for the like-sum to the satisfaction of the judicial Magistrate.
b. The petitioner shall deposit fine amount forthwith.
Based on the order of conviction, a representation appears to have been given to the Assistant Commissioner and the Deputy Commissioner requesting them to take action against the petitioner alleging that he was not entitled to continue to be the president/councilor of the Pattana Panchayat, The Assistant Commissioner has issued a show notice dated 29.09.2011 vide Annexure-A calling upon the petitioner to show cause why he should not be disqualified as per the provisions contained u/s 16(1)(a) of the Karnataka Municipalities Act, 1964 (for short ''the Act'') The show cause notice makes reference to the letter of the Deputy Commissioner dated 28.09.2011 whereunder the Assistant Commissioner was asked by the Deputy Commissioner to take action for cancellation of the membership of the petitioner.
The petitioner has submitted a reply dated 7.10.2011 to the Assistant Commissioner contending that he was not liable to be disqualified as per the provisions contained u/s 16(1) (a) of the Act. The Deputy Commissioner has thereafter passed the impugned order on 17.10.2011 disqualifying the petitioner from the membership of the Pattana Panchayat and also as the Adyaksha of the Pattana Panchayat, Jog-Kargal on the ground that he had Incurred such a disqualification as per Section 16(1)(a) of the Act. After the said order was passed by the Deputy Commissioner, respondent No. 4-Tahasildar issued calendar of events vide Annexure-K fixing the date of election of the Adyaksha of the Pattana Panchayat on 15.11.2011. It is at this stage, the petitioner has approached this Court challenging the order passed by the Deputy Commissioner and also the calendar of events issued vide Annexure-K.
Since the petitioner had an alternative remedy of challenging the order of disqualification passed by the Deputy Commissioner, he had preferred an appeal before the Director of Municipal Administration- the 1st respondent. The 1st respondent has passed an order on 23.11.2011 dismissing the appeal. As this order came to be passed during the pendency of the writ petition, petitioner made an application seeking amendment of the writ petition to lay a challenge to the order passed by the Appellate Authority. In this background, the amendment application has been allowed and the petitioner has been permitted to challenge the order Annexure-L passed by the Appellate Authority.
It is contended by the learned Senior counsel appearing for the petitioner that the Deputy Commissioner has grossly erred in net affording an opportunity of being heard to the petitioner before passing the impugned order Annexure-C. Inviting the attention of the Court to the provisions contained under proviso to Sub Clause (3) of Section 16, he submits that the law requires an opportunity of being heard to the petitioner, but the Deputy Commissioner has passed the impugned order ignoring the mandatory requirement merely based on the show cause notice issued by the Assistant Commissioner and the reply submitted to the said show cause notice by the petitioner.
It is his next contention that the petitioner is not liable to be disqualified as per the provisions contained u/s 16(1)(a) of the Act, as the sentence imposed against the petitioner came to be suspended by the learned JMFC on the very same day when the sentence was pronounced and subsequently on an appeal preferred before the appellate Court, the appellate Court has suspended the judgment of conviction and also the sentence and therefore Section 16(1)(a) could not have been invoked for disqualifying the petitioner. In the wake of the suspension of the sentence, referring to the provisions contained u/s 16(1)(a) of the Act and the provisions contained in Section 8(1) of the Representation of the People Act. 1950 (for short ''the 1950 Act'') he tries to drive a distinction in the terminology used for disqualification of a convicted person for certain offences as per the 1950 Act. It is his contention that the legislature has made it clear while enacting Section 16(1)(a) of the Act that a person shall be disqualified for being chosen as, and for being, a councilor, if he has been sentenced by a Criminal Court to imprisonment and has not used the expression ''convicted for certain offences'' and therefore this difference assumes significance in understanding the effect and implication of the interim order suspending the sentence. He further submits that if only an opportunity of hearing was given by the Deputy Commissioner to the petitioner before handing down the penalty of disqualifying him from the membership of the Pattana Panchayat, the petitioner would have satisfied the Deputy Commissioner about the same.
Learned Senior counsel appearing for the petitioner has placed reliance on the judgements in the cases of R.C. Patil V. Ilkal Municipality and Another (1962 MYS.L.J. 1027) and K.R. Venkatesh Vs. Deputy Commissioner, Chitradurga And Others, to substantiate his contention that failure to afford an opportunity of being heard by the Deputy Commissioner has vitiated the entire proceedings.
Learned counsel appearing for the Pattana Panchayat submits that though there is an error committed by the Deputy Commissioner in not providing an opportunity of hearing to the petitioner, that does not make any difference in the present case, as the matter purely rests on the interpretation of the provisions and as along as the petitioner has an opportunity before this Court to have his say regarding the effect of the provisions contained u/s 16(1)(a) of the Act. this Court need not interfere with the order passed by the Deputy Commissioner, merely because opportunity of hearing was not given by the Deputy Commissioner. He has placed reliance on the judgments of the apex Court in the cases of Lalsai Khunte V. Nirmal Sinha and Others (AIR 2007 SCW 1591) and P. Prabhakaran Vs. P. Jayarajan, to contend that mere suspension of sentence will not wipe out the conviction given even temporarily and therefore the petitioner is not entitled to claim the benefit of the interim order passed by the Court below suspending the sentence. It is his submission that the effect of the provisions contained u/s 16(1)(a) of the Act and the provisions contained u/s 8(1) of the 1950 Act are one and the same and hence the judgment relied by him have application to the case on hand.
Learned Additional Government Advocate has supported the impugned orders.
Having heard the learned counsel for the parties and on consideration of the entire materials on record, the question that arises for consideration is,
whether the order passed by the Deputy Commissioner as affirmed by the appellate Authority suffer from any illegality warranting interference by this Court in exercise of the writ jurisdiction?
It is not in dispute that the Deputy Commissioner has not heard the petitioner before passing the impugned order nor has he issued any notice calling upon him to appear before him or to file objections to the proposed action. In fact, the show cause notice is issued by the Assistant. Commissioner and the petitioner has submitted his reply to the Assistant Commissioner. The requirement contemplated under proviso to Sub-clause (3) of Section 16 of the Act clearly mandates that no order shall be passed under Sub-Sections (2) and (3) of Section 16 against any councilor without giving him a reasonable opportunity of being heard. As per Sub-clause (2) of Section 16 of the Act, if any councilor during the term for which he has been elected or appointed incurs disqualification as specified in Sub-Section (1). It is the Deputy Commissioner who is entitled, either suo motu or on a report made to him and after such inquiry as he deems fit, to declare the seat of the person concerned as having become vacant. Ft is thus clear that the power and jurisdiction is vested with the Deputy Commissioner to conduct an enquiry and he is under an obligation to afford an opportunity of being heard to the affected person and thereafter pass an order. The order passed by the Deputy Commissioner undoubtedly has a very serious consequence on the affected individual as he would be declared as having incurred the disqualification and the seat held by him as an elected representative would be declared as vacant. In view of such a power having been conferred with the Deputy Commissioner and also the statutory requirement spelt out obliging the Deputy Commissioner to afford a reasonable opportunity of being heard, in my considered view, the Deputy Commissioner ought to have issued notice to the petitioner calling upon him to have his say in the matter and thereafter, after hearing the petitioner, ought to have passed an order. In the instant case, he has proceeded on the basis of a reply submitted by the petitioner to the notice issued by the Assistant Commissioner. The Assistant Commissioner is not vested with any power to issue notice. It is the Deputy Commissioner who is required to issue notice and call upon the petitioner to have his say in the matter. Therefore, there is non-observance of the principles of natural justice.
Though the Deputy Commissioner has proceeded to hold that the suspension of sentence will not come to the aid of the petitioner, this conclusion is reached without affording an opportunity of being heard to the petitioner. Therefore, the same cannot be sustained.
The Appellate Authority, very strangely, has not gone into the merits of the contentions of the petitioner. It has dismissed the appeal holding that it cannot embark upon the interpretation of the effect of the judgment of the criminal Court.
As rightly contended by the learned Senior counsel for the petitioner, the language used in Section 16(1)(a) of the Act is different from the language used in Section 8(1) of the 1950 Act. The judgment of the Supreme Court on which the learned counsel for the 4th respondent has placed reliance are rendered in the context of the provisions contained in the 1950 Act.
This Court, however, at this stage need not undertake the exercise of examining the nature and effect of the order suspending the sentence on the issue of disqualification of the petitioner as per the provisions contained u/s 16(1)(a) of the Act. It is also not necessary for this Court to enter into the aspects of distinguishing the provisions of Section 16(1)(a) of the Act and the provisions contained u/s 8(1) of the 1950 Act because the Deputy Commissioner has not undertaken this exercise by giving an opportunity to the petitioner and the Appellate Authority has not at all touched this aspect and has merely dismissed the appeal.
Therefore, in my considered view, the appropriate course is to direct the Deputy commissioner to examine the matter afresh after giving a fair and reasonable opportunity of being heard to the petitioner and keeping in mind the effect of the provisions contained u/s 16(1)(a) of the Act viewed in the background of the suspension of the sentence as ordered by the Court, below. It is open to both the parties to urge all the grounds that are, urged before this Court or any other additional ground that is available to them. The writ petition, therefore, is allowed. The impugned orders at Annexures-C and L are set aside. The calendar of events published vide Annexure-K is also, consequently set aside. The Deputy Commissioner is directed to expedite the matter and dispose of the same as expeditiously as possible.