IN THE HIGH COURT OF JUDICATURE CHHATnSGARH AT BILASPUR W.P.NO. :2CVU / 2004 Petitioner / Versus Respondents ^- i-Tf-n (3 -~t ^:A-t?'i'i e^s^- t;),-'^ y ^%v2- ^\* 1 ? 7^"" ^ <t-'.^' ..••' 3. ^"<e?~ A' i? 4. ^- g 3, ^f^ ^-«?C^ ^^- •eneis Wilson D'Souza S/o late ^- F.D'Souza, Aged about 40 years, CounseUor Municipal Corporation, Durg-(C.G.) R/o Station Road, Near Bata Shop Durg-IC.G.) State of Chhattisgarh Through The Secretaiy Urban Admimstration and Developaient, D.K-S.Bhawan, Raipur-fC.G.) The Director Urban Planning and Developinent, State of Chhatdsgarh, R.D.A. BuUdmg, Raipur-fC.G.) Municipal Corporation Durg, Through its Conunissioner, Municipal Corporation Durg-(C.G-) 1. Saroj Pandey, Mayor, isfeinicipal Corporation Durg-(C.G.) WRIT PETITION UND@, ARTICLE 226/227 OF THE CONSTITUTION OF INDIA w ..^) >,» ^ranjKkA A£0UA.r WRIT PETITION N0.2019 OF 2004 Wilson D Souza - Versus - State of Chhattisgarh and others Sd/- L.C. Bhadoo Judge '-^-y't .8.2004 11 y: HIGH COURT OF JUDICATURE AT BILASPUR, CHHATTISGARH WRIT PETITION N0.2019 OF 2004 Wilson D' Souza - Versus - State of Chhattisgarh and others Present: - Mr. Pritiiiker Diwaker, Advocate: Mr. Pramod Kuinar Verma, AdditionalA.G, Mr. Sanjay K. Agrawal, Advocate: For fhe petitioner. For the State/ respondents No. 1 and 2. For respondent No.3. ORD (Passed oii(fe<feL-August. 2004) L.C. BHADOO, J. 1. By this writ petition, fhe petitioner, who is an elected Couiiciilor of Muiucipal Corporation, Durg, has questioned the legaiily Emd propriety of show cause notices dated 8.7.2004 & 16.7.200^-, Annexures P-1 8s P-2 respectivelv. 2. Brieffacts leadtag to filing ofthis writ petitioa are fhat the petitioner is aa elected CoiuiciUor of Muiucipal Corporation, Dirrg. His case is fhat he is kaown for bis devonon and sw.ceritf towards fhe general public. Twice he was elected as Councillor being aa uidependent caadidate froni fhe area where onlv 8 Clmstiaa voters are fliere. The petitioner was requested by fhe ruling congress part}710 siippoil fhe congress and ultimately in fhe larger interest of public, he took a decision to joiu congress party. Lookmg to fhe performance of the petitioner and his activities soon he came in close contact with tlie fhen Chief Minister which unfortunatelv has not been likecl by Mayor Kum. Sarqj Pandey who is a B.J.P. caadidate. Tne pentioEer has attended ahnost everv meeting of fhe couiicU aad ia last. ten years, it can be said fhat his attendaace in the meetiag was best amongst all fhe Councfllors. He has supponed fhe great cause and work of fhe Corporation but has equally opposed by fhe Corporation and inactiveness of the Corporation as per fhe requireDieat. Cn account of this activeness of the petitioner, respondent N0.4 Kura. Saroj Paudey does not like the petitioner and on inauy occasions she was fhreateniag him. to teach a lessou. It is being said openly by the Mayor fhat the petitioner would be subjected to soiue action by fhe deuartment to ensurc his renioval aad non-election ui futui-e. The petitioner was flabbergasted to receive a notice/order dated 16.7.2004 along with aaofher uotice dated 8,7.2004 asking hica xo subiait his claim. before the Director ou 21.7.2004 as to whv he caanot be reinoved fromi fhe post of Councillor under the provisions of Section 19 (1) (2) of fhe Chliattisgarh Muilicipal Corporation Act, 1956 (hereiaafter referred to as fhe Actl. In the show cause notice dated 8.7.2004 it has been nientioned ttiat ia the m.eetiag dated 30t11 October, 2002, fhe conduct of fhe petitioner was uot good and was agamst ffae Constitution as he put a gunny bag contaiiling filth cn the table of the Mayor and further fhat ia the general lueetuig dated 18.5.2004 when fhe Mayor was readiug the budget, the petitionej: had tlirew certaiu papers and luagazines. The conduct of the petitioner was against fhe decorum. of fhe House aiid created obstruction in fhe meeting. The said notice is illegal, arbiti^n' and against law. For such act, tiU today, none of fhe C»im.citlorsof any Municipal Corporation, Municipalifr or Nagar Paucbayat has fceea issued such a notice as has been done in the present case. The said notice has beeu issued at fhe behest of Mayor Kuni. Saroj Paiidey, The first aUegation in fhe show cause notice has beea levelled sTcer troo vears of fhe incident and the said show cause aotice does not meet the reqiiirement of Section 19 of fhe Act. Therefore, fhe said show cause notices (Annexures P-1 & P-2) be quashed. 3. I have heartl Mr. Prituiker Dnvaker, counsel for tiie petitioner; Mr. Pramod Kum.ar Verma, Additional Advocate General for the State/ respondents No. 1 & 2; and Mr. Sanjay K. Agrawal, couusel for respondent No.3. 4. Mr. P. Diwaker, learaed counsel for the petitiouer argued fhat as respondent No.4 is presenfly against the petitioner aad she waiits tc reiuove fhe petitioner, fherefore, the said notices are issued on h'er behest without vaMd reasons and fhe sam.e does not ineet tlie 1'equirem.ent of Section 19 of fhe Act. He farther argued that fhe petitioner is an elected representative and ia the Corporation ineeting it is fhe general practice fhat fhe ele'cted ineiubers alwa;irs put forfh their grievances and soine tim.es even high piteh ofvoice is also used aad even duruig the course of discussions in. oi~der to attract the attention of fhe Chau: soiue hot words are aJ.so exchanged being a public representative, fherefore, fhe grouads as raised ia fhe show cause notices does not ineet tae reqiiireinent of Section 19 ofti.ie Act. 5. On the other hand, leamed coiuisel for fhe respondents opposecl an.ci argued fhat the conduct of fhe petitioner, which has been nientioned in the show cause notices, was not desirable ia. the interest of fhe pubUc or fhe Corporation, as such 'the show cause notices were issued against which no writ petition is niamtainable. The petitioner should first give reply of fhe show cause notices a-ad if any action is taken, thereafter, he can approach fhe Court and ui the second place, he has aii alteinative reinedy to Sle aa appeal as per fhe provisions ofSection 19 (3) ofthe Act. 6. Haviag heard learaed counsel for tlie pardes, I have perused the record. Settied law on the poiat is that writ petition against show cause notice lies onlv when fhe authoritv is having no iurisdiction to issue such notice or sbow cause notice does not nieet the requireiaent as envisaged uiider fhe particular Section under which it has been issued. In fhe matter of The Special DireetoT !aad another v. Mohd. Ghulam Ghouse aad aaother reported m JT 2004 (1) SC 206, the Hon'ble Apex Court held that "This Court in a large ni.unber of cases has deprecated the practi.cc of the High Courts entertamuig writ petitions questioniag legality of fhe show cause notices staltmg enquiries as proposed and retardiaj investigati.ve process to find actual facts wifh ttie participation and iti fhe presence of the parties. Unless, fhe High Court is satisfied fhat the show cause notice was totaUy non est in the eye oflaw for absolute (- waat ofjurisdiction ofthe aufhority to even investigate into facts, writ peti.tions should not be entertaiaed for fhe inere asking and as a inatter of routine, aad the writ petitioner should invanably be directed to respond to fhe show cause notice and take all staiids hj^hlighted in the writ petition. Whether fhe show cause notice was founded on aay legal premises is a jiirisdictional issue which caa. even be urged by tlie recipient of fhe notice and such issues also cau be adjudicated by the aufhorily issuiug fhe very aotice uutiaUy, before fhe aggrieved could approach fhe Court." Suiular view has the case of M/s Commissioner of MPJR 191. taken bv fhe Madhva Pradesh High Coui-t iii Procter & Gamble Hom® Products Ltd. v. reported ia 2001 7. As far as fhe authoritv offhe Director to issiie show cause notice is coucemed, it has not been chaUenged. The only porat raised by tlie leamed couusel for fhe petitioner is fhat fbe alleged sho\v cause notices, Annexures P-1 & P-2, does not rueet the requtreinent cf Section 19 of fhe Act. Perusal of the show cause notice Annexure P- 1 reveals fh.at fhe first charge agaia.st the petitioner is fhat in the nieeting dated 30th October, 2002, fhe petitioaer placed a gunay uag contamiag fUth on the table of the Mayor which created disturbaD.Ci tn the Dieetuig aad fhe said act of fhe petiuoner was unconstitutional and agaiast fhe decorum. of The House. Tl1- second charge against ffae petitioner is that ia flie nieetirig of fhe House dated 18.5.2004 when fhe Mayor was reading the budget, fhe petitioner in a inost undigni&ed laauner fhrew pamphlets and inagazines in fhe ineetmg which created obstruction in the ineemig axid ultiinately, it has been said fhat such unconstitutioual aiic^ undignified conduct of fb.e petitioner is agauist tiie constitutional decoruia and fh.e same is cognizable beiag agamst the I&AV. 8. In this connection, ifwe look into fhe provisions of Section 19 of '&f. Act, it lays down that fhe Director inay, at aay time, reniove su:.y couiiciUor if his contuuuance as a councfllor is not, in the opinion of fhe (Divisional Coirunissioner), desirable in fhe interests of fhe public or the Corporation. Specific aUegations and charges have been leveUed against fhe petitioner and at this stage, it canaot fce •-^ J said that priina facie no charges are m.ade out agam.st fhe petitioner. Moreover, at fhis stage, it is not appropnate to express any opinion about tiie inerits of the charges. Since show cause notices have been issued to fhe petitioner it is in fhe fitness of thia.gs that the petitiouer being aa elected representati.ve respond to fhe show cause uoti.cc and whatever pouits raised by Tlim in this writ petition he is wittun his r^ht to raise aU fhese poiats before fae Director aad the Director shaB after giviag opportunity of heariug to fhe petitioner look iato fhe whole records and take decision and pass a considered order in accoidance wifh law. 9. In fhe result, for the foregoing reasons, I ain offhe opinion fhat this writ petition against fhe show cause notices is not inauitauiable and the same is liable to be disinissed. Accordtngly, fhe writ pention is disinissed in Imiine at the admission stage itself. L.C. -- -- • -^ W 3J G ^ fc4l-8-2004 Soma