( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 3618 OF 2010 Shri Isakhan Sardarkhan, Age : Major, Occupation : Social Worker, R/o. Kinwat, Taluka : Kinwat, District : Nanded. .. Petitioner. versus 1. Yadavrao s/o. Mukundrao Nemmaniwar, Age : 66 years, Occupation : Business, R/o. Velmapura, Kinwat, Taluka : Kinwat, District : Nanded. 2. The State of Maharashtra, Through Urban Development Department, Mantralaya, Mumbai. .. Respondents. ....................... Mr. P.V. Mandlik, Senior Advocate, with Mr. Amol Gandhi, Advocate, for the petitioner. Mr. S.V. Kurundkar, Additional Government Pleader, for respondent no.2. ........................ ( 2 ) CORAM : B.P. DHARMADHIKARI, J. DATE : 15TH MARCH 2011 ORAL JUDGMENT : 1. Heard Senior Adv. Mr. P.V. Mandlik, with Adv. Mr. Amol Gandhi, for the petitioner, and learned Addl. G.P. Mr. S.V. Kurundkar, for respondent no.2 at length. 2. Respondent no.1 is already served with notice and has chosen not to file appearance or argue the matter. 3. Learned Senior Adv. Mr. Mandlik, for the petitioner, has raised various contentions. According to him, the petitioner was at the relevant time President of the Municipal Council and hence notice under Section 55A of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (For short, "1965 Act") for his removal, as such, was essential. Similarly, the resolution passed is by general body and hence if action was to be taken in his capacity as Councillor under Section 55B only, the action could not have been only against the petitioner. The resolution dated 5-9-2003 is in larger interest of Municipal Council and, therefore, it cannot be viewed as against public interest. ( 3 ) 4. Learned Addl. G.P. Mr. Kurundkar, for respondent no. 2, has invited attention to resolution dated 5-9-2003 to show that the petitioner attended that meeting as a President and in that meeting a compromise was accepted by the Municipal Council. By that compromise, municipal property has been leased out practically for a period of 18 years and it is violation of Section 92 of 1965 Act. He has also invited attention to provisions of Section 302(1)(ii) of 1965 Act, to urge that such a compromise could not have been accepted without prevision sanction of Regional Director of Municipal Administration. He further states that the petitioner had collected relevant material by 28-9-2009 and filed his reply on 15-10-2009. Hearing was then conducted on 15-10-2009 and at that time, no adjournment was asked for. He contends that law does not prohibit hearing on the date on which reply is filed. He, therefore, states that when serious misconduct is proved against the petitioner, the impugned order does not suffer from jurisdictional error or perversity and hence, Writ Petition needs to be dismissed. 5. The fact that petitioner was an elected President on 5-9-2010 is not in dispute. Passing of resolution by general body and acceptance of compromise are also not in dispute. The provisions of Section 301(1)(ii) are not looked into by the competent authority while passing those orders. The authority ( 4 ) has looked into provisions of Section 92 and found that Municipal Council is not competent to grant on lease its property for a period exceeding 3 years at a time and the total period cannot exceed 9 years. The necessity of previous approval of State Government for such lease is also noted. But then, impugned order also does not show why action is taken only against the petitioner and no action is taken against Councillors who are party to the resolution dated 5-9-2003. 6. It is to be noted that Section 55B of 1965 Act contemplates disqualification for continuing as Councillor or becoming Councillor when there is no removal as President or Vice-President under Section 55A. The said provision begins with non-obstante clause. Section 55A enables State Government to remove President for misconduct in discharge of his duties, or for neglect of, or incapacity to perform, his duties or for being guilty of any disgraceful conduct. Section 55B deals with a Councillor or a person found guilty of misconduct in discharge of official duties while he was holding the post as President. The impugned order does not show any consideration of the situation prevailing in 2003 when petitioner became President. Whether steps taken by him have helped in resolving the already existing problem also needed to be looked into. The period of 9 years had expired in 1996 and further 9 years period ( 5 ) was to expire in 2005. Hence prima facie it appears that entire general body of Municipal Council and not only President granted renewal only of 2 years i.e. up to expiry of period of 9 years from 1996 i.e. till 2005. Petitioner may not be said to be instrumental in situation dealt with by general body in 2003. There is no discussion about his specific role, if any, in this respect. 7. The above facts are not looked into by respondent no. 2 while holding petitioner guilty as President in relation to charge 1. In relation to charge 2, again by general body's resolution shops lying vacant were let out only for 11 months at monthly rent of Rs. 1100/-. The deposit secured is also only Rs. 60,000/-. Reasons put on record for taking recourse to this course of action are not found to be incorrect or wrong. How this act violates Section 92 is also not very clear from impugned order. 8. In view of this position, as I find that the petitioner has been prejudiced and he also did not receive effective opportunity of hearing, the impugned order will have to be set aside. 9. In the result, the petition is partly allowed. ( 6 ) (i) The impugned order dated 30th October 2009, Exhibit "A" with the petition, passed by respondent no.2 / Secretary, Urban Development Department, Mantralaya, Mumbai, under Section 55B of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965, is quashed and set aside. The proceedings are restored back to the file of respondent no.2 for taking fresh decision in accordance with law at the earliest. (ii) Presently the petitioner is neither elected Councillor nor any office bearer of Municipal Council. He is directed to appear before respondent no.2 on 19th April 2011. (iii) Respondent no.2 shall then attempt to decide proceedings afresh as early as possible and in any case, within a further period of six months. 10. Rule is made absolute accordingly. No costs. 11. Certified Copy expedited. ( B.P. DHARMADHIKARI ) JUDGE ......................... bgp/wp3618