HIGH COIURT OF CHHATTISGARH : BILASPUR r Writ Petition (c) No. 2788 of 2007 Dr. Vimai Chopra Petitioner Versus State of Chhattisgarh & Others Respondents Post for pronouncement of the Judgment and Order on l? -09-2008 Sd/- Satish K. Agnjhgwi 1» Judge j l, 1N THE HIGH COURT OF CHHATTISGARH : BILASPUR Writ Petition (C) No. 2788 of 2007 Petither Dr. Vimal Chopra, S/o Shri Nemichand Chopra, Aged about 45 years, President, Municipal Council, Mahasamund, . R/o Mahasamund, District— Mahasamund (C.G.) Versus Respondents 1. State of Chhattisgarh, Through Secretary, Department of Environment and urban Development, Mantralaya, D.K.S. Bhawan,‘ Raipur (C.G.) Under Secretary, Department of Environment and Urban Development Mantralaya, D.K.S. Bhawan, Raipur (C.G.) I Municipal Council, Mahasamund, Through its Chief Municipal Officer, Municipal Council, Mahasamund, District— Mahasamund (C.G.) WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA (SB: Hon’ble Shri Satish K. Agnihotri J.)‘ Shri Sanjay K. Agarwal, Advocate for the petitioner. Shri Alok Bakshi, Govt. Advocate for the respondents No. 1 and 2. Shri Vinay Pandey, Advocate for the respondent No.3. Shri Manindra Shrivastava, Senior Advocate With Shri J. A. Lohani, Advocate for the Intervener. JUDGEMNT 85 ORDER (Passed on this 29’1day‘ of September, 2008) 1. The petitioner, by this petition seeks for quashing of the proceedings initiated byvthe respondent No.2 by notice dated 12.4.2007 (Annexure P/ 3), issued to the petitioner under Section 41—A of the Chhattisgarh Municipalities Act, 1961 (for short ‘the Act, 1961’). Learned counsel appearing for the petitioner would submit that the petitioner was an elected President of the Municipal Council, Mahasamund in the election held in the month ofDecember, io 2004. He assumed the charge of the office on 5.1.2005. On 29.9.2006 the State Government issued a notice (Annexure P/ l) to disqualify the petitioner under Section 41—A of the Act, 1961. The petitioner submitted his reply to the notice (Annexure P/2). Subsequently, the competent authority dropped the proceedings finding that there was no sufficient ground to proceed with the matter. Thereafter, on 12.4.2007 the respondent No.2 issued the impugned notice (Annexure P/3), directing the petitioner to appear before the Special Secretary, Environment and Urban Development on 3.5.2007 and submit point wise reply, asto why he should not be removed from the post of President, Municipal Council, Mahasamund under the provisions of Section 4l—A of I the Act, 1961 for having committed certain irregularities. It was stated in the notice dated 12.4.2007 (Annexure P/3) that‘ after enquiry on the complaints received against the petitioner, following irregularities were found proved :— “9. 31W m mam, Erwin gamer 126i W EB weer Emails 2223) W og.o®.os> Fran writ: 20%) m 93>.oa.oy E$ m 3-191? qTFe‘mar W W é’g e—H‘lrgd 1%p—ei an? W Era—RI? a)? daft WWW/ $21? Ema—R 3ma§ m m W mart 3zfé11%mw 9%? a5? 81m boo (2) 3’9, ya (8) UEI' wwWWmww§1 Wadmw 2o.oe.og$mamfa5 (o9)$3rwmmedm3maiawfla mds‘o—{Hmm3mrma‘laamm l mamatafaasflwm$3maia% @yeWwa§W$u&{Wu&iW 9oo/-WWW§IW‘WWW mWmw%/Egaw98%aam?ég (9,9y,goo/— m W aciaa’ acivu BEE, may)? @WWw%/W€q&ma§fww 30W%mrww&rwm@w#w wWWWWWw@/W$ WWWVWémWaiaiW ER? kaW oc.0(9.08 if)? 31W $1 31g @I 3. 3Wmmzaaa—ze‘atmaarqsietmm am? W WEI 2% 98,6:30/Q2Te3 313a aim WmrwwW§¥y3mWW W§I 8. i%rm$i%1éezwwm' aa‘m‘mqgmud WW, mg? E? aw 1H m emy/W/eooe W 03.02.02 E$ m m. WW W3 3Weo%a§?a€€%ei¢&awi%iezW—ég weIWWW3m$mawga§tWl svfltmmWmmwmfe‘iw 3% 9%;9 an? 81m Nco (9%90) €51 Irma 'WWWW’ It would be beneficial to reproduce the provisions of Section 41-A 0f the Act, 1961, which reads as under:— "4.1-A. Removal of President or Chairman of a Committee—(1) The State Government may, at any time, remove a President, Vice President or a7 Chairman of any Committee, if his /. continuance as su'ch is not, in the opinion of the State Government desirable in public interest or in the interest of the Council or if it is found that he is incapable of performing his duties 0r is working against the provisions of the Act or any rules (2) The State Government may, While ordering the removal under sub-section (1), also order that such President, Vice President or Chairman 0f any Committee shall be disqualified to hold such Provided that no such order under this Section shall be passed unless a reasonable opportunity of being heard is given.” made thereunder. post for the next term: Shri Sanjay K. Agarwal, learned counsel appearing for the petitioner would further submit that the State Government may remove the petitioner under the provisions of Section 4l-A of the Act, 1961 if it is found that continuance of the petitioner is not desirable in public interest or in the interest of the council, he is incapable of performing his duties or he is working against the provisions of the Act or any rules made thereunder. The impugned notice attaches a serious stigma on the personal and public life of the petitioner and may result in his disqualification to hold such an office for the next term. It is evident from the contents of the notice that the same has been issued with predetermined View that the petitioner had committed the alleged irregularities. The petitioner was not informed of asto which complaints were received against him, no opportunity of hearing was afforded to the petitioner to put forward his case in the alleged enquiry, conducted into the alleged complaints and asto what enquiry is conducted by whom that is also not known. The notice clearly records a finding that the petitioner has been found V primal facie guilty of committing irregularities and the petitioner tRR has been acted against the provisions of the Act, 1961 and the rules made thereunder. Thus the impugned notice is liable to be set aside. 7. Shri Alok Bakshi, learned Govt. Advocate appearing for the respondents No. l and 2 would submit that the instant petition, preferred against the Show cause notice, is not maintainable. After proper enquiry into the allegations made in the complaints against the petitioner, the respondents/authorities have prima facie formed the opinion to exercise the powers envisaged under Section 41-A of the Act, 1961 and thus issued the show cause notice to the petitioner. Instead of filing this petition the proper course for the petitioner would have been to submit his reply and cooperate in the enquiry, if any. The show cause notice has been issued to provide reasonable opportunity of hearing to the petitioner. No cause of action is available to the petitioner to challenge the impugned show cause notice, as the same is not a punishment order. The petition is premature. 8. Shri Vinay Pandey, learned counsel appearing for the respondent No.3 would adopt the submissions made by learned counsel appearing for the respondents No. 1 and 2 and would submit that the facts and grounds raised by the petitioner do not call for invoking the extraordinary writ jurisdiction of this Court. He prays for dismissal of the petition. Shri Manindra Shrivastava, learned Senior counsel, assisted by Shri J. A. Lohani, learned counsel for the Intervener (Vice President of the Council) would adopt the submissions made by learned counsel appearing for the respondents No. 1 to 3 and 1y \ supports the action of the respondents and issue of the impugned show cause notice. 10. I have heard learned counsel appearing for the rival parties, perused the pleadings and documents appended thereto. T 11. he question asto whether the impugned show cause notice issued under Section 41-A of the Act, 1961 amounts to imposition of punishment or a show cause notice, preceding the enquiry, to find out the genuineness and veracity of the facts. This issue is no longer res integra, as this Court in the matter of v Bharti Sonkar Vs. tate of Chhattisgarh 8; others S (Writ Petition No. 5853 of 2006), by judgment and order dated 4.3.2008 held as under:— “12. The word used in sub—section (1) of Section 41(A) of the Act of 1961 is ‘Removal of President or Chairman of a Committee’ however in the show cause notice the petitioner has been called upon to show cause as to why she should not be disqualified (Nirharit) from the post of President of Nagar Panchayat, Gunderdehi. Thus, on the face of it, the word used in the show cause notice does not conform to the word used in the section. The word “disqualification’ has been used in sub-section (2) of Section 41(A) of the Act of 1961 which confers power upon the State Government that while ordering removal under sub-section (1), the State Government may also order that such office bearer shall be disqualified to hold the post for the next term provided that no such order under this Section shall be passed unless a reasonable opportunity 0f being heard is given. From bare reading of the above notice, it clearly transpires that the notice is, in fact, under sub- section (2) of Section 41(A) of the Act of 1961 and the same has been issued without removal of the petitioner. Thus in the considered opinion of this Court, the impugned show cause notice is not in accordance with Section 41(A) of the Act of 1961.” l l In regard to [the maintainaility of the petiton this Court i the b i n matter of Bharti Sonkar (supra) held that the writ court can exercise its discretionary jurisdiction in entertaining a writ petition questioning issue of show cause notice. In the decision in Bharti Sonkar’s case (supra), reliance was placed on a \ decision of the Hon’ble Supreme Court in the matter of M/s. Siemens Ltd. Vs. State of Maharashtra and othersl, wherein it was held that :— “10. 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 V. Brahm Datt Sharma and another, AIR 1987 SC 943; Special Director and Another v. Mohd. Ghulam Ghouse and Another (2004) 3 SCC 440 and Union of India and Another v. Kunisetty Satyanarayana, 2006 (12) SCALE 262, 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 v. Union of India and other (1987) 4 SCC 431: AIR 1988 SC 686). 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.” that the respondents/authorities have formed opinion with regard to certain allegations in respect of financial irregularities, as have 1 In view of the foregoing, it is evident 3. 1 2006 AIR SCW 6380 s 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 41—A of the Act, 1961 or any other provisions of the Act, 1961, if so advised. 14. The petition is allowed to the above extent. No order asto costs. Sd/— Satish K. Agnihotl’i f’ Judge l i » l