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Sanjay Baban Parve v/s The State of Maharashtra, through its Secretary, Department of Urban Development & Others


Company & Directors' Information:- MAHARASHTRA CORPORATION LIMITED [Active] CIN = L71100MH1982PLC028750

Company & Directors' Information:- URBAN DEVELOPMENT CORPORATION PRIVATE LIMITED [Active] CIN = U45400MH2011PTC300616

Company & Directors' Information:- URBAN DEVELOPMENT CORPORATION PRIVATE LIMITED [Active] CIN = U45400WB2011PTC166069

Company & Directors' Information:- SANJAY CORPORATION LIMITED [Active] CIN = U16009GJ1999PLC035814

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    Writ Petition No. 3102 of 2018

    Decided On, 12 July 2018

    At, In the High Court of Bombay at Nagpur

    By, THE HONOURABLE MR. JUSTICE S.B. SHUKRE

    For the Petitioner: Alok Daga, Advocate. For the Respondents: R1 & R2, S.M. Ukey, Additional Government Pleader, R3, N.R. Saboo, Advocate.



Judgment Text

Oral Judgment:

1. Heard.

2. Rule. Rule made returnable forthwith.

3. Heard finally by consent.

4. The petition challenges the order dated 6.2.2018 passed by the Collector, Buldhana disqualifying the petitioner, an elected Councillor of Municipal Council, Jalgaon Jamod on the ground of his misconduct under Section 44(1)(e) read with Section 44(3) of the Maharashtra Village Panchayat Act (for short, 'Village Panchayat Act'). This order was confirmed by the Hon'ble Minister when the Hon'ble Minister dismissed the revision application filed by the petitioner challenging the order of the Collector. The revision application was dismissed by the Hon'ble Minister on 5th May, 2018. Now, being aggrieved by these two orders, petitioner is before this Court in the present petition.

5. It is seen from the record of the case that the petitioner, an elected Councillor of Municipal Council, Jalgaon Jamod, had been to the spot of incident situated at a place near Rajiv Gandhi bypass road, Jalgaon Jamod on 1st June, 2017. At the spot of incident, the Chief Officer of Municipal Council and the staff members were already present and they were in the midst of removing encroachments made by various persons at that place. After reaching the spot of incident, it has been alleged, the petitioner started hurling abuses at the Chief Officer and hearing use of such abusive language by the petitioner against the Chief Officer, the encroachers came near the Chief Officer and all of them encircled (gherao) him and indulged in giving abuses to the Chief Officer. Such conduct of the petitioner and also what followed in consequence thereof made the Chief Officer and the staff members apprehensive of their own safety. The Chief Officer, therefore, filed a complaint against the petitioner for such unruly behaviour which resulted in creating obstruction to the lawful action taken by the the Chief Officer in removing the encroachments from the public place. On the basis of this complaint offences punishable under Sections 143, 186, 189, 504 and 506 of the Indian Penal Code were registered against the petitioner and further inquiry was made.

6. As the Police inquiry was being made, the Chief Officer also sent his report under Section 42(2) of the Village Panchayat Act to the Collector of the incident recommending that the petitioner's behaviour amounted to misconduct contemplated under Section 44(1) of the Village Panchayat Act and be therefore, dealt with accordingly. The Collector, Buldhana initiated an inquiry into the report. He permitted the Chief Officer as well as the respondents to file on record affidavits and gave hearing to both sides. After considering the material placed on record and what was said in support of their respective stands, the Collector formed an opinion that the conduct of the petitioner was no less than misconduct contemplated under Section 44(1) of the Village Panchayat Act and accordingly by the order passed on 6.2.2018, the Collector disqualified the petitioner. This order was challenged by the petitioner by filing a revision application before the Hon'ble Minister, where also the petitioner met with failure.

7. It is the contention of the learned counsel for the petitioner that no effective opportunity of hearing was granted to the petitioner in the sense that the petitioner was not given an opportunity to cross-examine the witnesses of the Chief Officer. He submits that the law expects that when any action is taken against a person which has civil consequences, before taking of such an action, a reasonable opportunity of hearing is given to that person and such an opportunity includes the opportunity to cross-examine the witnesses and leading of evidence at an inquiry held by the Collector. Reliance is placed upon the case of Shri Vasant Appaso Mali vs. The Collector, Kolhapur and others, Writ Petition No.5121/2009, decided on 26th June, 2009 by the Division Bench of this Court.

8. The submission has been disagreed to learned Additional Government Pleader for respondent Nos.1 and 2 and learned counsel for respondent No.3. They submit that the inquiry to be held by the Collector under Section 44 is summary in nature and there can be no straight jacket formula as to the manner in which such an inquiry is to be conducted. They rely upon the case of Sagar Anandrao Chalake and another vs. Ilahi Adam Kalavant and others, reported in 2011(3) Mh.L.J. 552.

9. There can be no dispute about the principle of law enunciated in the case of Shri Vasant Appaso Mali vs. The Collector, Kolhapur and others (supra) that the concept of reasonable opportunity of hearing also includes, in a given case, the idea of cross-examination of the witnesses by the person against whom adverse action is proposed. But, as held in the case of Sagar Anandrao Chalake and another vs. Ilahji Adam Kalavant and others (supra), whether the opportunity of cross-examining the witnesses has to be given or not would depend upon the fact situation of a particular case and there could be cases where such an opportunity might be unnecessary. What is ultimately is to be seen is as to whether or not the opportunity of hearing that was given to the affected party was effective and if it is seen that the opportunity of hearing was effective, just because no cross-examination of witnesses has been taken by the party, it would not vitiate the whole inquiry on the ground that it violates the principle of natural justice, for, the fact situation of the case would convey a firm impression that principle of natural justice has indeed been followed in the case.

10. In the case of Union of India vs. Tulsiram Patel, reported in (1985)3 SCC 398 the principle of law propounded is that unless the law provides for a hearing to be given in a particular manner, by reading the principles of natural justice in such a statute, one cannot expect that in all cases, the affected party must be given an opportunity to cross-examine the witness or to lead his own evidence whether oral or documentary.

11. In the present case, it is not in dispute that there is no provision made in the Village Panchayat Act prescribing a particular method or manner in which to conduct an inquiry under Section 44 of the Village Panchayat Act. Therefore, the question would have to be answered only by taking into consideration the facts and circumstances of this case.

12. So, let us see where the facts and circumstances of this case lead us to. It is not in dispute that the Collector had given an opportunity to both sides to adduce evidence and accordingly both sides filed affidavits of their witnesses. It is also an admitted fact that the petitioner did not file any application before the Collector seeking permission to cross-examine the witnesses of the Chief Officer. On the contrary, the roznama of the case shows that after filing of the affidavits of his witnesses, the petitioner closed his case. These facts would sufficiently demonstrate that adequate and effective opportunity of hearing was given not only to the petitioner but also to the Chief Officer and these parties, by choice, did not conduct any cross-examination of each others witnesses. So, this is not a case wherein no opportunity to cross-examine the witnesses was given to the petitioner. Therefore, the objection taken by the learned counsel for the petitioner on this ground has to be found as devoid of merit and it is so found. 13. The second objection of the learned counsel for the petitioner is that the Collector closed the inquiry for order on 17.10.2017 and passed the final order on 6.2.2018, about three and half months after closure of the case for final order, which was in violation of the law laid down by the Division Bench of this Court in the case of Shivsagar Veg Restaurant vs. Asstt. Commissioner of incometax and another, reported in 2009(2) Bom. CR 153.

14. Shri S.M. Ukey, learned Additional Government Pleader for the State points out to me that the guidelines given in the case of Shivsagar Veg Restaurant were based upon the cases of Devand Rasiklal Vora vs. Union of India and others, reported in 2004(2) Mh.L.J. 208, Anil Rai vs. State of Bihar, (2001) 7 SCC 318 and other cases, which have been explained for their application to particular cases by this Court in the case of Rahul s/o. Virendra Deshmukh and others vs. State of Maharashtra and others, reported in 2016(6) Mh.L.J. 450.

15. There is no dispute about the fact that the final order was passed by the Collector after the time of three months, which time has been advised by the superior Courts to be followed in such cases even by the executive authorities exercising judicial or quasi judicial functions. But, whenever a breach of these guidelines is seen or brought to the notice of the Appellate Authority or the High Court, the Appellate Authority or the High Court has also to see the question of prejudice being caused to a party and if no such prejudice has been seen, the breach of guidelines by itself would not vitiate the impugned order. This Court, in Rahul s/o. Virendra Deshmukh and others (supra) has also explained the procedure to be followed and the factor to be weighed by superior Courts in such cases. In such cases, or to be precise whenever a breach of the guidelines relating to delivery of final order within a time frame of three months is noticed by any of the parties, the party is required to follow the procedure as laid down in clauses 4 and 5 of paragraph 10 of the Judgment of Anil Rai (supra) and if such procedure is not followed, the party cannot be heard to say that the impugned order has been vitiated and then the factor of prejudice is also important. In the present case, neither any prejudice has been shown to be caused to the petitioner by belated passing of the final order nor the petitioner has averred that the procedure as prescribed in Anil Rai (supra) was followed by him. Therefore, crossing of the time frame of three months in passing the final order by the Collector has not resulted in invalidating the impugned order on this ground alone, in the present case.

16. Learned counsel for the petitioner, referring to the observations of the learned Single Judge in the case of Ramdas Bhikaji Darade vs. Hon'ble Minister of State, Ministry of Urban Development, Mumbai and others, reported in 2009(4) Mh.L.J. 436 (paragraph 37) further submits that removal of an elected Councillor from an office is a serious matter as it curtails the statutory term for the holder of the office and, therefore, the authority passing an order of disqualification must be careful in reaching a conclusion about constitution of the act of misconduct on the part of the Councillor before any order of disqualification is passed. He submits that in the present case the material placed on record by the parties would show that there is not an iota of evidence from which it could be concluded that the petitioner had made any attempt to obstruct or had obstructed the Chief Officer from discharging his public duty. In support, he invites my attention to the affidavits filed by the witnesses of the Chief Officer which do not say anywhere that the Chief Officer was actually obstructed by the petitioner. He further submits that the affidavits of witnesses of the petitioner were not appropriately considered by the Chief Officer. According to the learned Additional Government Pleader for the respondent Nos.1 and 2 and learned counsel for the respondent No.3, the argument canvassed on behalf of the petitioner is not borne out from the record of the case.

17. While there is no doubt about the principle propounded in Ramdas (supra), on facts emerging from consideration of the affidavits filed on record by the witnesses of both sides, I find that the principle has been followed by the authorities here and that the contentions of the petitioner just reproduced receive no support from the material placed on record.

18. It is true that the witnesses of the Chief Officer have not stated in so many words that the petitioner actually obstructed the Chief Officer, but, I must say, they have stated in a categorical manner that the petitioner hurled abuses at the Chief Officer which emboldened the encroachers to gather at the spot of incident and encircle the Chief Officer and then treat him in an abusive manner. There are also affidavits of the witnesses of the petitioner all of which state that though the petitioner was present at the spot of incident, he did not indulge in any obstructionist and abusive attitude, rather, the petitioner extended his hand of help and support to the Chief Officer to remove the encroachments. There is thus a word against word and therefore, one has to see as to which word has more weight and has in it some ring of truth. This could be ascertained from the surrounding circumstances.

19. In this case, it seen that the petitioner admits that he had been to the spot of incident, but his explanation is that his such visit to the spot of incident was to give support to the Chief Officer in his action of removal of encroachments. Once it is seen that the petitioner admits his going to spot of incident and that too, on his own, a question would arise as to whether or not the explanation given by him for his paying such visit stands testimony to his natural conduct and is reasonable and hence acceptable.

20. The petitioner is an elected Councillor and ordinarily it was not his job to go to the spot voluntarily and make such an effort. It is nobody's case either that his assistance was specially requisitioned by the Chief Officer. In a situation where the Chief Officer and his team has swung into action of removal of encroachments, an elected representative like the petitioner, has to exhibit extreme self-restraint, avoid speaking anything and to say the least, hold himself back from visiting the spot where the action is underway, lest his mere presence there is mistaken by the encroachers, who may be his present or prospective voters, for an opposition to such an action thereby encouraging them to resist the action through unlawful means. In the instant case, being an elected representative, the petitioner was expected to show much more maturity, which he did not. If the petitioner had shown it, the natural conduct on his part would have been in his staying away from the spot of incident, for, as stated earlier, his presence at the spot of incident was likely to be interpreted by the encroachers, as giving support to them, which appears to be case here, if one goes by material available on record.

21. Looking at the scenario from another angle, I would say, if at all the petitioner was genuinely interested in supporting the action of the Chief Officer, he could and should have indicated his such mind to the Chief Officer first, taken his opinion and then conducted himself as per the advice given by the Chief Officer. The petitioner did not do any such thing and instead chose to pay visit to the spot of incident not only singly but with one of the journalists. The petitioner has not explained anything about his being accompanied by a journalist during his visit to the spot of incident. One does not understand, if the intentions of the petitioner were clear, why the petitioner chose to keep along with him one journalist also.

22. Absence of any explanation given by the petitioner about his being accompanied by a journalist during his visit to the spot of incident together with his conduct of visiting the spot of incident without his assistance being called for by the Chief Officer and his lack of self restraint inspite of being an elected representative would all reasonably show that the excuse given by petitioner in going to the place of incident was lame and the petitioner wanted to play to the gallery and support the encroachers rather than the public cause that was taken up by the Chief Officer. Then, there is no reason for the witnesses of the Chief Officer to speak against the petitioner and affidavits of petitioners witnesses do not make out any specific case of enmity. These circumstances and such conduct of the petitioner in the present case go against the petitioner and they would reasonably give rise to an inference that what has been stated by the witnesses of the Chief Officer is true

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and this is not so in case of the witnesses of the petitioner. 23. In addition to the above referred circumstances, there is another circumstance which is significant. On the basis of the report given by the Chief Officer, the concerned Police Station has registered offences against the petitioner. These offences are for the acts which are punishable under Sections 143, 186, 189, 504 and 506 of the Indian Penal Code. Section 186 is an offence of obstructing public servant in discharge of public functions; Section 189 is an offence of giving of threat of injury to public servant and Section 504 is an offence of intentional insult with intent to provoke breach of the peace, while Section 506 is a provision which prescribes punishment for criminal intimidation. These offences when seen in the context of being registered against an elected Councillor like the petitioner, assume seriousness. The registration of an offence is something which would strengthen the case of the Chief Officer about misconduct of the petitioner. Therefore, in my considered view, this circumstance would add and does add further weight to the affidavits of the witnesses of the Chief Officer. 24. Having considered the material available on record, I am of the view that the conclusion drawn by the learned Collector as well as the Hon'ble Minister through the concurrent findings recorded by them that the petitioner has been guilty of misconduct contemplated under Section 44(1)(e) cannot be held to be patently illegal or perverse, warranting interference in supervisory jurisdiction of this Court under Article 227 of the Constitution of India. It would then follow that there is no merit in this petition. 25. The petition stands dismissed with costs. 26. Rule is made absolute in the above terms.
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