Case: Ravi Yashwant Bhoir Vs. The Collector, District Raigad

A. That the appellant was elected as member of Uran Municipal Council and, subsequently, elected as a President of the Municipal Council. The appellant was served with a show cause notice dated 3.12.2008 by the State of Maharashtra calling upon him to explain why action under Section 55B of the Act 1965 be not taken against him. The chargesheet contained the following six charges:Charge No.1Uran Charitable Medical Trust has built up unauthorized construction on Survey Nos. 8 + 9 + 10 + 11 situated at Mouje Mhatawali to the extent of 1140 square meters for their hospital and you are the Trustee of the said Trust. Municipal Council had issued notice dated 17.10.2006 for demolishing the said unauthorized construction on its own. Shri Dosu Ardesar Bhiwandiwala had filed Regular Civil Suit No.95/07 against the said notice in the court of Civil Judge, Junior Division, Uran and the same was decided on 19.12.2007 in which plaintiffs application was rejected.Junior Engineer of Uran Municipal Council lodged a complaint with Uran police Station under Sections 53 and 54 of the Maharashtra Regional and Town Planning Act, 1966 against the said unauthorized construction on 24.7.2007. Shri Jayant Gosal and three others filed Public Interest Litigation No. 57 of 2008 concerning the said unauthorized construction of the said Trust in the Bombay High Court and the same is presently subjudice. You are the Trustee of the said Trust and as President of the Municipal Council, you are duty bound to oppose the unauthorized construction. However, you did not take any action to oppose the same and it appears that you have supported the unauthorized construction. You have, therefore, violated Sections 44, 45, 52 and 53 of the Maharashtra Regional and Town Planning Act, 1966.Charge No.2The Municipal Council had called the General Body Meeting on 22.3.2007 by way of Resolution No. 2 Survey Nos. 8 + 9 + 10 + 11 at Mouje Mhatawali area admeasuring about 4000 square meters was proposed for reservation of garden. However, instead of that, the resolution was passed for reserving the same for hospital, nursing home and medical college. At that time, you were presiding over the meeting. By this illegal Act, you have violated Sections 44( 1 )(e) and 42(1), (2) and (3) of Maharashtra Municipal Councils, Panchayat Samiti and Industrial Township Act, 1965.Charge No.3After you were elected as the President on 20.12.2006, a General Body Meeting was held on 9.1.2007. Although it is required under Section 80(1) of the Maharashtra Municipal Councils, Panchayat Samiti and Industrial Township Act, 1965 to hold the General Body Meeting once in two months, no such meeting was held for a period of three months between 28.2.2007 and 28.5.2007. By the said act, you have violated Section 81 (1) of the Maharashtra Municipal Councils, Panchayat Samiti and Industrial Township Act, 1965.Charge No.4In the meeting held on 9.1.2007, the suggestion to the Agenda No.4 made by Members Shri Chintaman Gharat and Shri Shekhar Mhatre that a rented car be provided for the use of the President was rejected by you. Similarly, the Members Shri Chintaman Gharat and Shri Shekhar Mhatrehad made suggestion to the Agenda No.ll of the same meeting that new Nalla be constructed near Ughadi at Bhavara Phanaswadi. The said suggestion was rejected after being read over. Similarly, Members Shri Chintaman Gharat and Shri Shekhar Mhatre had made suggestion to the Agenda No.20 in the same meeting that new Nalla be constructed in front of the house of Shri Kailash Patail at Bhavara Phanaswadi. The said suggestion was rejected. Similarly, suggestion was made by Shri Chintaman Gharat and Shri Shekhar Mhatre to Agenda No.23 that the Standing Committee be authorized to open the tender/approvals and give sanctions for diverse works of the Municipal Council. The said suggestion was rejected. Similarly, suggestion was made by Shri Chintaman Gharat and Shri Shekhar Mhatre to Agenda No. 27 of the same meeting regarding allotment of contract for spraying insecticides in Ward Nos. 1 to 17 of the Municipal Council. It appears from the minutes of the meeting dated 9.1.2007 that even said suggestion was rejected. You have, therefore, violated rules 30, 32(1) and (2) of the Maharashtra Municipal Councils (Conduct of Business) Rules, 1966 by frequently rejecting the suggestions of the Members of the Municipal Council.Charge No.5Tenders were invited on 5.10.2006 for installing CI Pipeline of 300 mm. diameter for outlet and inlet of GSR Tank at Sarvodayawadi within Uran Municipal Council by the construction department of Maharashtra Jeevan Pradhikaran, Panvel by its Outward No.MJPBV /MC/MS/Uran /311/3/06 dated 7.12.2006 at the Town Hall of the Uran Municipal Council. Pursuant to the same three tenders were invited, details whereof are as follows :Name & Address of the ContractorTender Amount1.M/s ShaileshConstructionUlhasnagar9,11,351.502.M/s PadmavatiEnterprise,Ambernath8,92,375.003.M/s Kiran B. Jadhav,Ulhasnagar8.47,462.98Out of the aforesaid three tenders, the lowest tender of M/s Kiran B. Jadhav, Ulhasnagar was accepted as per Clause 171 of the Maharashtra Accounts Code, 1971. However, the estimate was prepared as per the DSR of 2005-2006. As a result when the tenders were invited, there was a difference of more than 10% in the tender amount. Therefore, by citing Item No.44 of the Standing Order No.36 of the Commissioner and Director, Directorate of Municipal Administration, the Municipal Council called for the current market rates from the concerned commercial dealers. M/ s Nazmi Electrical & Hardware Limited, Kalyan and M/s Sanjay Steel Tube Corporation Limited on 5.1.2007 to compare the difference in the rates of the tenderers/ contractors and the market rates and decided that the rates of the tenderers were less than the market rates on the basis of the comparison and sanctioned the tenders and the bills of the tenderers were paid thereby you have violated paragraphs Nos. 44 to 47 of Standing Order No.36 regarding inviting tenders and approvals dated 29.12.2005 bearing No. NPS/Inviting Tenders/2005/Case No.151/05and Rule No.171 of the Maharashtra Accounts Code, 1971.Charge No.6Tenders were invited on 5.10.2006 for installing CI Pipeline of 300 mm. diameter for outlet and inlet of GSR Tank at Sarvodayawadi within Uran Municipal Council by the construction department of Maharashtra Jeevan Pradhikaran, Panvel by its Outward No.MJPBV/MC/MS/Uran /311/3/06 dated 7.12.2006 at the Town Hall of the Uran Municipal Council. Pursuant to the same three tenders were invited, details whereof are as follows:Name & Address of the ContractorTender Amount1.M/s ShaileshConstructionUlhasnagar4,21,165.002.M/s PadmavatiEnterprise,AmbernathM/s Kiran B.4,18,889.283,78,507.783.Jadhav,UlhasnagarOut of the aforesaid three tenders, the lowest tender of M/s Kiran B. Jadhav, Ulhasnagar was accepted as per Clause 171 of the Maharashtra Accounts Code, 1971. However, the estimate was prepared as per the DSR of 2005-2006. As a result when the tenders were invited, there was a difference of more than 10% in the tender amount. Therefore, by citing Item No.44 of the Standing Order No.36 of the Commissioner and Director, Directorate of Municipal Administration, the Municipal Council called for the current market rates from the concerned commercial dealers. M/s Nazmi Electrical & Hardware Limited, Kalyan and M/s Sanjay Steel Tube Corporation Limited on 5.1.2007 to compare the difference in the rates of the tenderers / contractors and the market rates and decided that the rates of the tenderers were less than the market rates on the basis of the comparison and sanctioned the tenders and the bills of the tenderers were paid thereby you have violated paragraphs Nos. 44 to 47 of Standing Order No.36 regarding inviting tenders and approvals dated 29.12.2005 bearing No. NPS/lnviting Tenders/2005/Case No.151/05 and Rule No.171 of the Maharashtra Accounts Code, 1971.B. The appellant submitted his explanation dated 18.12.2008 in writing. After considering the same, the appellant was issued a notice for hearing on 23.1.2009. The appellant remained present alongwith his advocate before the competent authority i.e. Honble Chief Minister holding the portfolio of Department. However, vide impugned order dated 21.3.2009, the appellant was declared disqualified for his remaining tenure and further declaring him disqualified for a period of six years even as member of the Council.C. Being aggrieved, the appellant filed the writ petition challenging the order dated 21.3.2009. The writ petition stood dismissed vide impugned judgment and order dated 18.6.2009. Hence, this appeal.

Reasoning:
we are of the considered opinion and that too after appreciation of the entire evidence on record that the first charge proved against the appellant for not calling the meeting of Council, did not warrant the order of removal and the explanation furnished by appellant could have been accepted. Other charges could not be proved against the appellant, in view of the fact, that the tenders at a higher rate were accepted by the Council itself and the appellant could not be held exclusively responsible for it. The Respondent no. 5, being a political rival, could not have been entertained as a party to the lis. The charge of not calling the meeting of the Council had been admitted by the appellant himself, thus, no further evidence was required, for the reason, that the admission is the best evidence. The competent authority could have considered his explanation alone and proceeded to take a final decision. So far as the other charges are concerned, as has been observed hereinabove, it had been a consensus collective decision of the Council to accept the tender at higher rate and the appellant could not have been held guilty of the said charges. Thus, the instant case has been a crystal clear cut case of legal malice and therefore, the impugned orders are liable to be quashed. The duly elected member/chairman of the council could not have been removed in such a casual and cavalier manner without giving strict adherence to the safeguards provided under the statute which had to be scrupulouslyorder impugned removing the appellant from the post and declaring him further disqualified for a period of six years had been passed. It is not evident from the order impugned as what could be those new grounds which had not been disclosed to the appellant. Thus, to ascertain as to whether in order to give an opportunity to the appellant to meet the alleged new grounds, the competent authority had adjourned the case, this Court while reserving the judgment vide order dated 13.2.2012 asked the learned Standing Counsel for the State Shri Mike Prakash Desai to produce the original record before this Court within a period of two weeks. For the reasons best known to the State Authorities neither the record has been produced before us, nor any application has been filed to extend the time to produce the same.In fact, this Court has been deprived of seeing the original record and to examine the grievance of the appellant. We express our grave concern and shock the way the State Authorities has treated the highest court of the land. In such a fact-situation, the court has no option except to draw the adverse inference against the State.