1 WP 4437........2011 - [ J ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4437 OF 2011 1. Vijay S/o Damu Patil Age : 41 Yrs., Occ. Business, R/o : Shahada, Tq. Shahada, Dist. : Nandurbar. 2. Arvind S/o Shenu Kuwar Age : 48 Yrs., Occ. Business, R/o : Shahada, Tq. Shahada, Dist. : Nandurbar. 3. Rajendra S/o Brijlal Choudhari Age : 47 Yrs., Occ. Business, R/o : Shahada, Tq. Shahada, Dist. : Nandurbar. 4. Madhukar S/o Sudam Patil Age : 54 Yrs., Occ. Business, R/o : Shahada, Tq. Shahada, Dist. : Nandurbar. 5. Ravindra S/o Brijlal Marathe Age : 48 Yrs., Occ. Business, R/o : Shahada, Tq. Shahada, Dist. : Nandurbar. 6. Rahim Issaq Issani Age : 56 Yrs., Occ. Business, R/o : Shahada, Tq. Shahada, Dist. : Nandurbar. 7. Ravindra S/o Karsan Choudhari 2 WP 4437........2011 - [ J ] Age : 52 Yrs., Occ. Business, R/o : Shahada, Tq. Shahada, Dist. : Nandurbar. 8. Laxman S/o Nathu Bade Age : 33 Yrs., Occ. Business, R/o : Shahada, Tq. Shahada, Dist. : Nandurbar. 9. Sou. Padmabai Hiralal Ahire Age : 45 Yrs., Occ. Household, R/o : Shahada, Tq. Shahada, Dist. : Nandurbar. 10. Ramdas S/o Hari Patil Age : 57 Yrs., Occ. Business, R/o : Shahada, Tq. Shahada, Dist. : Nandurbar. 11. Sharif Musa Bagwan Age : 38 Yrs., Occ. Business, R/o : Shahada, Tq. Shahada, Dist. : Nandurbar. 12. Yunus Yusuf Bagwan Age : 39 Yrs., Occ. Business, R/o : Shahada, Tq. Shahada, Dist. : Nandurbar. 13. Sou. Jaheedabee Rahim Pinjari Age : 35 Yrs., Occ.Household, R/o : Shahada, Tq. Shahada, Dist. : Nandurbar. 14. Yamunabai Suresh Choudhari 3 WP 4437........2011 - [ J ] Age : 55 Yrs., Occ. Household, R/o : Shahada, Tq. Shahada, Dist. : Nandurbar. 15. Sou. Shahnoorbee Shaikh Ahmed Age : 70 Yrs., Occ. Household, R/o : Shahada, Tq. Shahada, Dist. : Nandurbar. 16. Sou. Roshani Narendra Patil Age : 28 Yrs., Occ. Household R/o : Shahada, Tq. Shahada, Dist. : Nandurbar. 17. Raju S/o Shivdas Thakre Age : 47 Yrs., Occ. Business, R/o : Shahada, Tq. Shahada, Dist. : Nandurbar. 18. Shikalkar Mohd. Riwaz Mohd.Shafi Age : 52 Yrs., Occ. Business, R/o : Shahada, Tq. Shahada, Dist. : Nandurbar. ..... PETITIONERS V E R S U S 1. The State of Maharashtra Through Pirincipal Secretary Urban Development Department, Mantralaya, Mumbai. 2. The Collector Nandurbar. 4 WP 4437........2011 - [ J ] 3. The Joint Chief Auditor Local Fund Audit, Nashik Division, Nashik. 4. The Municipal Council, Shahada, through its Chief Officer, Shahada, Dist. Nandurbar. ..... RESPONDENTS Mr.P.R.Katneshwarkar, Advocate for the Petitioners. Mrs. R.K.Ladda, Assistant Govt. Pleader for State. Mr. S.P. Brahme, Advocate for respondent. Mr. A.S.Golegaonkar,Advocate for Respondent No.4. WITH WRIT PETITION NO. 4438 OF 2011 Rajendra S/o Mihilal Agrawal Age : about 45 Yrs., Occ. Business, R/o : Gupta Bhavan, Chavdi Chowk, Shahada, Dist. : Nandurbar. ..... PETITIONER V E R S U S 1. The State of Maharashtra Through Pirincipal Secretary Urban Development Department, Mantralaya, Mumbai. 5 WP 4437........2011 - [ J ] 2. The Collector Nandurbar. 3. The Joint Chief Auditor Local Fund Audit, Nashik Division, Nashik. 4. The Municipal Council, Shahada, through its Chief Officer, Shahada, Dist. Nandurbar. ..... RESPONDENTS Mr.J.R.Shah, Advocate for the Petitioners. Mrs. R.K.Ladda, Assistant Govt. Pleader for State. Mr. S.P. Brahme, Advocate for respondent. Mr. A.S.Golegaonkar,Advocate for Respondent No.4. WITH WRIT PETITION NO. 4566 OF 2011 Ashok Chatur Bagul Age : 51 Yrs., Occ. Business, R/o : Tup Galli, Shahada Tq. Shahada, Dist.: Nandurbar. ..... PETITIONER V E R S U S 1. The State of Maharashtra Through Pirincipal Secretary 6 WP 4437........2011 - [ J ] Urban Development Department, Mantralaya, Mumbai. 2. The Collector Nandurbar. 3. The Joint Chief Auditor Local Fund Audit, Nashik Division, Nashik. 4. The Municipal Council, Shahada, through its Chief Officer, Shahada, Dist. Nandurbar. ..... RESPONDENTS Mr. S.P.Brahme, Advocate for the Petitioners. Mrs. R.K.Ladda, Assistant Govt. Pleader for State. Mr. A.S.Golegaonkar,Advocate for Respondent No.4. WITH WRIT PETITION NO. 4567 OF 2011 1. Vijay Bansi Patil Age : 64 Yrs., Occ. Agril., R/o : Gandhii Chowk, Shahada, Tq. Shahada, Dist. : Nandurbar. 2. Ananda Pandu Patil Age : 58 Yrs., Occ. Agril., R/o : Vardhaman Nagar 110, 7 WP 4437........2011 - [ J ] Shahada, Tq. Shahada, Dist. : Nandurbar. 3. Dr. Yogesh Purushottam Chaudhari Age : 38 Yrs., Occ. Pvt. Practitioner, R/o : Matoshri Clinic, Old Prakasha Road, Shahada, Tq. Shahada, Dist. : Nandurbar. ..... PETITIONERS V E R S U S 1. The State of Maharashtra Through Pirincipal Secretary Urban Development Department, Mantralaya, Mumbai. 2. The Collector Nandurbar. 3. The Joint Chief Auditor Local Fund Audit, Nashik Division, Nashik. 4. The Municipal Council, Shahada, through its Chief Officer, Shahada, Dist. Nandurbar. ..... RESPONDENTS 8 WP 4437........2011 - [ J ] Mr.P.B.Pawar, Advocate for the Petitioners. Mrs. R.K.Ladda, Assistant Govt. Pleader for State. Mr. S.P. Brahme, Advocate for respondent. Mr. A.S.Golegaonkar,Advocate for Respondent No.4. WITH WRIT PETITION NO. 4761 OF 2011 Smt. Ramabai W/o Devidas Vasave Age : 50 Yrs., Occ. Councilor, Municipal Council, R/o : Brahmashrushti Colony, Shahada, Tq. Shahada, Dist. : Nandurbar. ..... PETITIONER V E R S U S 1. The State of Maharashtra Through Pirincipal Secretary Urban Development Department, Mantralaya, Mumbai. 2. The Collector Nandurbar. 3. The Joint Chief Auditor Local Fund Audit, Nashik Division, Nashik. 9 WP 4437........2011 - [ J ] 4. The Municipal Council, Shahada, through its Chief Officer, Shahada, Dist. Nandurbar. ..... RESPONDENTS Mr.M.K.Deshpande, Advocate for the Petitioners. Mrs. R.K.Ladda, Assistant Govt. Pleader for State. Mr. S.P. Brahme, Advocate for respondent. Mr. A.S.Golegaonkar,Advocate for Respondent No.4. CORAM : S.V. GANGAPURWALA, J. DATE OF JUDGMENT: 25/07/2011 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the parties, taken up for final hearing. 2. All the petitions involve common question of law, as such are decided together. 3. The petitioners in all these petitions except Writ Petition No. 4566 of 2011 and Writ Petition No. 4761 of 2011 are the elected councilors and members of the Municipal Council, Shahada, Tq. Shahada, Dist. Nandurbar having been elected in the election held in November, 2006. 10 WP 4437........2011 - [ J ] 4. The notice came to be issued to the petitioners of Writ Petition No. 4437 of 2011, Writ Petition No. 4438 of 2011 and Writ Petition No. 4567 of 2011 U/s 42 of the Maharashtra ( Municipal Councils ), ( Nagar Panchayats) and Industrial Townships Act, 1965 [ For short, ‘ the Act of 1965 ’ ]. The petitioners replied the said notice. Thereafter, vide the impugned order passed by the principal Secretary, Department of Urban Development disqualified the petitioners for the period of five ( 5 ) years. The petitioners in Writ Petition No. 4566 of 2011 and Writ Petition No. 4761 of 2011 are the Ex-President, against whom an action U/s 55-B of the Act was initiated and eventually they stood disqualified vide order impugned passed by the Principal Secretary, Department of Urban Development. All these orders are impugned in the present Writ Petitions. 5. I have heard the learned counsel for the respective petitioners, the learned Assistant Govt. Pleader for the State and Mr. A.S. Golegaonkar, the learned counsel for the Municipal Council, Shahada. 6. The learned counsel for the petitioners submit that the order impugned passed by the principal Secretary disqualifying the petitioners U/s 42 and/or Section 55-B of the Act of 1965 is per se and ex-facie illegal, without jurisdiction. According to the learned counsel, the Principal 11 WP 4437........2011 - [ J ] Secretary, Urban Development Department could not have exercised the powers U/s 42 and 55-B of the Act of 1965 in as much as the powers vest with the State Govt. As per Article 166 of the Constitution of India, the business rules are framed and as per the said business rules, it is the Hon’ble Chief Minister, who has got the authority to deal with the matter. The proceedings are quasi judicial in nature and the powers can not be delegated to the Principal Secretary. The learned counsel for the petitioners rely on the Judgment delivered by the Full Bench of this Court in a case of Sheikh Mohamed Fatemohamed V/s Raisuddin Azimuddin Katil reported in 2000 (Supp.) Bom.C.R. - 373 and another Judgment of the Full Bench of this Court in a case of Sombharti Guru Damu Bharti V/s The State of Maharashtra & others reported in 2000 (Supp.) Bom.C.R. - 371 and the Judgment delivered by the Division Bench of this Court in a case of Ganeshrao Kisanrao Deshmukh V/s Devisingh Venkatsingh reported in 1972 Mh. L.J. - 661. According to the learned counsel as the Judgment is per se without jurisdiction, the same can not be sustained and deserves to be set aside on this solitary count. 7. The learned Assistant Govt. Pleader for State submits that the business rules have been framed for the effective functioning to deal with the matters. The learned Assistant Govt. Pleader relies on the instructions 12 WP 4437........2011 - [ J ] regarding the business of the Govt. issued under Rule 15 of the Maharashtra Govt. Rules of Business made under Article 166 of the Constitution of India. The learned Assistant Govt. Pleader relies on Rule 5 framed under said Rule 15 and states that each Hon’ble Minister has power to delegate power to the Secretary of the Department. The learned Assistant Govt. Pleader further submits that the Hon’ble Chief Minister had authorized the Principal Secretary to hear the matter and deal with the proceedings and specific endorsement has been made in the proceedings. 8. Vide my earlier order dated 5/7/2011, I have already held that the proceedings U/s 42 and 55-B of the Act of 1965 are quasi judicial in nature. 9. Section 42 and 55-B of the Act of 1965 deals with the powers of the State Govt. to remove any Councilor and the President from the office. The Division Bench of this Court in a case of Ganeshrao Kisanrao Deshmukh referred supra has observed thus : “ It is a fundamental principle of administration of justice in civilized societies where rule of law is respected that normally the person or authority, who has to decide a question affecting rights and liberties of persons, must give a reasonable and fair 13 WP 4437........2011 - [ J ] opportunity to the parties concerned of being heard by that authority. Ordinarily none should be condemned or prejudiced unheard. It is not disputed that under the rules of business framed under the Constitution of India, the ‘ State Government ’ means in practice the Minister in charge of the department concerned ”. 10. Further, vide Order dated 4/2/2005, the Hon’ble Chief Minister was empowered to decide all the proceedings of quasi judicial nature and the Appeals arising under the provisions of the Act of 1965. The same is placed on record by the respondents. Even as per the notification dated 20/11/2010, the matters relating to urban development are to be dealt by the Hon’ble Chief Minister. 11. It is trite law that when a statute requires a particular act to be done in a particular manner, it has to be done in that manner only. The Act of 1965 does not contain any provision authorizing the State Govt. to delegate its powers, then in such circumstances, the Hon’ble Chief Minister would not have any authority to delegate his powers in respect of the proceedings U/s 42 and 55-B of the Act of 1965 to the Principal Secretary nor the Principal Secretary can assume powers for dealing with the said proceedings. Even the Full Bench of this Court in a case of Sk. Mohd. Fateh 14 WP 4437........2011 - [ J ] Mohd. referred supra has observed that the quasi judicial proceedings would be out of the purview of Article 166 of the Constitution of India and would not be covered by the rules of business under Rule 15 as sought to be done. 12. In view of the aforesaid clear position, I have no hesitation to hold that the order impugned passed by the Principal Secretary, Department of Urban Development is without jurisdiction, interalia can not be sustained. 13. As I am disposing of the Writ Petitions on this issue itself, the other points raised in the petitions are not being considered and the same would be considered by the Hon’ble Chief Minister dealing with the proceedings on its own merits. 14. In the result, the Writ Petitions are allowed. The petitioners are relegated to the Hon’ble Chief Minister, who shall decide the proceedings afresh after giving an opportunity of hearing to all the parties concerned. 15. Taking into account that the matters are remitted, the Hon’ble Chief Minister shall make endeavour to dispose of the proceedings as expeditiously as possible. 15 WP 4437........2011 - [ J ] 16. The impugned orders are accordingly quashed and set aside. Rule is made absolute in above terms. No costs. The learned Assistant Govt. Pleader shall forthwith transmit the record to the concerned department. The parties to appear before the Hon’ble Chief Minister on 22/8/2011. [ S.V. GANGAPURWALA,J. ] KNP/WP 4437...........2011- [ J ]