wp2501-10.doc 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2501 OF 2010 Nagraj Pukhrajji Sheth & Ors. .. Petitioners Versus Ashokrao Chavan, Chief Minister and Ors. .. Respondents Mr.Y.S.Jahagirdar, Senior Advocate with Suresh Sabrad for petitioners Mr.Sachindra B. Shetye for respondent No.6 Mr.Niranjan Mogre for respondent No.3 Mr.R.M.Patne, AGP for respondent Nos. 2 and 4. CORAM : S.C.DHARMADHIKARI, J. DATE : 4th August 2011. P.C.: 1] By this petition under Articles 226 and 227 of the Constitution of India, the petitioner impugns an order passed on 23rd February 2010 by the Secretary Urban Development Department, Government of Maharashtra under section 55A of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965. wp2501-10.doc 2 2] The petitioners are essentially impugning this order on the ground that the same violates principles of natural justice. 3] It is their case that the revised development plan of respondent No.3 Municipal Council was sanctioned in the year 1988 and came into effect from the year 1989. There is a certain land within Municipal limits reserved as green zone. That land was owned by a Trust. The owner of the land started construction of building meant for being used as commercial zone and gymnasium. After noticing the construction the Council issued notice under section 52 and 53 of the MRTP Act. Inspite of this notice, one Bhiwandiwala proceeded with the construction and on 20th December 2006 submitted an application along with plan for construction of building for gym and indoor games. 4] Despite notice being given to stop construction and yet the construction was proceeded with, the Council issued wp2501-10.doc 3 another notice dated 28th March 2007. It is stated that an application was made for reserving about 4000 sq.mtrs land for Hospital, Medical college and nursing college. Third respondent Council without considering as to how the application has been forwarded, placed it before a meeting of the Council held on 22nd March 2007. In that meeting, the proposal was considered and the resolution was passed. It is stated that the construction was not permissible and there was some litigation initiated including a Public Interest Litigation. The thrust of the allegation is that there was an attempt made by some of the interested Councilors either to have the construction regularised or to change the reservation itself. All this was an attempt to save unauthorised and illegal construction. The subject meeting was called for passing the resolution to change reservation but the petitioners were not of the opinion that such resolution should be passed. At such a meeting some interested Councilors used unparliamentary and filthy language against the petitioners and also against the President of the Council. Ultimately the resolution came to be wp2501-10.doc 4 passed resolving to change the reservation from green zone to hospital. The petitioners, therefore, pointed out that the acts of the interested Councilors attracted section 42 of the said Enactment and, therefore, they have rendered themselves to be disqualified. An application was made by the petitioners on 7th January 2009 to the second respondent to this petition and they pointed out aforementioned facts. It was stated that an inquiry be held because of the misconduct committed by these Councillors and appropriate action including under section 55-A of the Act be initiated. The petitioners also enclosed a compact disc recording proceedings of the meeting. That, according to the petitioners evidenced the misconduct of the interested Councillors and the language used by them during the course of their interventions and speeches. It is stated that when an application was made by the petitioners and reminders were sent, yet, they were not informed anything about the outcome of the same. Eventually, a petition being Writ Petition No.2098 of 2009 was filed. This petition was was disposed of on 26th February 2009 by this Court. In pursuance of the said order wp2501-10.doc 5 once again an application was made on 4th March 2009. On 18th March 2009 a reminder was sent. Since no action was taken despite the application of the petitioners and the reminders, even a contempt petition had been filed and in answer to the contempt petition, a reply affidavit was filed in which it was stated that the respondent No.4 has passed an order in the proceedings, that were initiated against the private respondents to this petition, who are councillors of the said Council and who are alleged to have misbehaved and misconducted themselves. An order has been passed in the said proceedings dropping them. 5] It is thereupon the petitioners became aware of the order dated 23rd February 2010. It is challenged on the basis that when the petitioners brought to the notice of the Authorities the misconduct and the acts of the subject councilors, then, the least that was expected was that they would be given an opportunity of being heard in the proceedings. The proceedings concerned the Councillors and particularly their conduct at the wp2501-10.doc 6 meeting and when the petitioners are also councilors of the said Council, then, all the more their presence was necessary at the hearing. The petitioners would have placed before the authorities necessary materials including the proceedings of the meeting as recorded. In these circumstances, by not hearing the petitioners, there is denial of principles of natural justice. Contending thus, it is prayed that the impugned order be set aside and the matter be re-heard by the authorities after an opportunity is given to the petitioners. 6] Mr.Jahagirdar, learned Senior Counsel appearing for petitioners submitted that the enquiry in this case was in proceedings under section 55-A and 55-B of the subject enactment. These sections themselves make it clear that the President or Vice-President may be removed by the State Government for misconduct in the discharge of his duties or for neglect of or incapacity to perform, his duties or for being guilty of any disgraceful conduct. Inviting my attention to the contents of the speeches made during the said meeting, wp2501-10.doc 7 Mr.Jahagirdar submits that the concerned private respondents are clearly guilty of disgraceful conduct. If they are guilty of such conduct and proof thereof could have been furnished by the petitioners, then, it was incumbent upon the respondent No. 4 to have heard the petitioners before passing the impugned order dropping the proceedings. Mr.Jahagirdar submits that the principles of natural justice have to be read into every action including an administration act unless the said principles are clearly excluded. If the statute does not provide for exclusion, then, not hearing the petitioners is fatal and the impugned order deserves to be set aside on this ground alone. He placed strong reliance upon the decision of the Supreme Court reported in A.I.R. 1987 S.C. 71 (Institute of Chartered Accountants of India Vs. L.K.Ratna and Ors) and another decision of the Supreme Court reported in (1990) 2 SCC 48 (Management of M/s.M.S.Nally Bharat Engineering Co. Ltd. Vs. State of Bihar and Ors). 7] With the assistance of Mr.Jahagirdar and other wp2501-10.doc 8 Counsel appearing for parties, I have perused the petition and the impugned order. To my mind, the impugned order cannot be set aside on the ground that the principles of natural justice have been violated. Section 55A contemplates removal of President and Vice-President by Government and the proviso thereto states that no such President and Vice-President shall be removed from office unless he has been given an opportunity to furnish his explanation. Petitioners are not those who are proceeded against by the State Government. It is respondent Nos. 5 to 7 to this petition who have been proceeded against by the State. If the lis is really between them and the Government and they were sought to be removed by proceeding against them in pursuance of the notice, then, an opportunity contemplated by Section 55A is qua them and the proviso must be read accordingly. It may be true that the hearing to parties like petitioners is not specifically excluded. However, by the said process of reasoning, it cannot be said that the proceedings are in any manner vitiated for breach of principles of natural justice, merely because those like the wp2501-10.doc 9 petitioners who bring to the notice of the State Government the acts of disgraceful conduct have not been allowed to participate in the proceedings or are not heard by State Government. The order would not be straight away vitiated without anything more only on this ground. It is not the case of the petitioners before me that the proceedings initiated against the respondent Nos. 5 to 7 have been dropped with some oblique motive or malafide. They repeated and reiterated what they have stated in the application filed before the State Government. True it is that they were not present in the meeting when the alleged words were uttered, which is allegedly unparliamentary and filthy, but by these acts the President and Vice-president could be said to be guilty of any disgraceful conduct is something which the State Government has to determine by proper adjudication. That has been done so also the compact disc and the contents thereof have been referred to. The order passed clearly refers to the said material. If the State Government is of the opinion that the proceedings viewed as a whole and the acts of the respondent Nos. 5 to 7 therein and particularly the utterances wp2501-10.doc 10 attributed to them would not mean that they are guilty of any disgraceful conduct and the reasons are assigned for the same, then, it is not a case where any prejudice is caused to the petitioners, merely because they were not put to notice or that they were not heard. 8] The reasoning in paras 7 and 8 of the impugned order would go to show that the relevant and necessary material for the purpose of adjudication has been taken into account and consideration and for reasons which have been assigned in the impugned order, the same is held not to be enough to record a conclusion or to justify the action of removal of the President and Vice-president and/or Councillor. In this view of the matter I am of the opinion that this is not a case for interference in writ jurisdiction. 9] The judgements cited by Mr.Jahagirdar must be seen in the backdrop of the controversy before the Supreme Court. The first decision in the case of Institute of Chartered wp2501-10.doc 11 Accountants (supra), the controversy was whether the Member of Institute is entitled to be heard by the Council after the disciplinary committee submitted its report to the Council concerning the enquiry into the allegations of misconduct against the member and secondly, when the Council proceeds to consider the report of the disciplinary committee, is the proceeding vitiated by the presence of the members of the disciplinary committee who include the President and Vice- President of the Council and three other members of it. 10] It is during the course of discussion on the first question that the Supreme Court holds that the subject regulations do not rule out or exclude hearing after the disciplinary committee had submitted a report to the Council. In these circumstances, the request of the member to be heard even at that prima facie stage, when the report was being considered by the larger body was held to be reasonable and deserved to be accepted. Its rejection was faulty on analysis and interpretation of the concerned regulations. About the wp2501-10.doc 12 principle laid down therein, there cannot be any dispute and there cannot be any quarrel. However, that cannot be extended to a case where the complainant like petitioners who trigger the action also necessarily possess a right to be heard at the proceedings. The judgement does not help the petitioners in arriving at such a conclusion. 11] Equally, in second decision the issue raised was scope of 33B of the Industrial Disputes Act, the powers conferred upon appropriate Government to transfer proceedings under section 33B (i) can be exercised suo motu or on the representation of the parties. The expression “may” in sub-section 1 to section 33B only makes it discretionary insofar as the appropriate Government taking decision as to whether powers conferred thereunder have to be exercised or not. But, once a decision is taken to transfer pending case, then, requirement of giving reasons becomes mandatory and failure to give reasons is not permitted. It is in that context that the Court held that the power exercised may be said to be wp2501-10.doc 13 administrative but the rule of fairness and duty to act fairly and fairness in procedure demand that hearing should be given to the workman. It is in this context that the Supreme Court's observations that the settled principles is that principle of natural justice not being excluded from the statutory provisions or enactment is an indicator that they should be read into the same. Once again, there cannot be any quarrel with this principle but its application would depend upon the facts and circumstances of each case. In the instant case, this judgement is also of no assistance. 12] As a result of this, petition fails. Rule is discharged. No costs. (S.C.DHARMADHIKARI, J)