Gangmei Gaidon Rongmei vs State Of Manipur And Others

Kh. Nobin Singh, J

[1] Heard Shri N. Jotendro, learned Senior Advocate appearing for the petitioners; Shri M. Rarry, learned Addl. Advocate General appearing for the State respondents and Shri Y. Nirmolchand, learned Senior Advocate appearing for the respondent, Imphal Municipal Corporation.

[2] Since the above writ petitions have arisen out a similar set of facts, the same are being disposed of by this common judgment and order of this Court.

WP(C) No. 541 of 2019:

[3.1] By the instant writ, the petitioner has prayed for issuing a writ of mandamus or any other appropriate writ to the respondents and in particular, the respondent No.2 to convene a special meeting for consideration of 'No-Confidence Motion' against the Mayor.

[3.2] According to the petitioner, he is an elected corporator of the Imphal Municipal Corporation (hereinafter referred to as "the Corporation"). On 26-06-2019 as many as 18 corporators including the petitioner submitted a requisition to convene a special meeting for consideration of 'No-Confidence Motion' against the Mayor on four grounds as mentioned therein. In spite of the said requisition being submitted by the petitioner and others, the respondent No.2 failed to issue any notice for convening a special meeting. Being aggrieved by the inaction on the part of the respondent No.2, the instant writ petition has been filed on the inter-alia ground that although it is incumbent upon the respondent No.2 to follow the procedure as prescribed in Section 12 of the Manipur Municipalities Act, 1994 as amended from time to time, he has failed to do so.

W.P. (C) No. 559 of 2019:

[4.1] By the instant writ petition, the petitioner has prayed for issuing a writ of certiorari or any other appropriate writ to quash and set aside the suspension order dated 15-07-2019 issued by the Joint Secretary (MAHUD), Government of Manipur as illegal, arbitrary and malafide.

[4.2] Facts and circumstances as narrated in the writ petition are that the petitioner is an elected Corporator of the Imphal Municipal Corporation, Manipur.

[4.3] On 26-06-2019 as many as 18 (eighteen) corporators submitted a requisition for convening a special meeting for consideration of 'No-Confidence Motion' against the Mayor, Shri L. Lokeshwor Singh for his various illegal activities.

[4.4] Instead of taking necessary steps as regards the removal of the Mayor, the State Government issued a Show Cause Notice dated 03-07-2019 thereby directing the Corporation to furnish an explanation within seven days therefrom as to why appropriate action should not be taken against it. In the said notice, it has been stated that if no reply was given within seven days thereof, it would be presumed that there was nothing to say and action would be initiated ex-parte. The said show cause notice was not circulated to all the corporators so as to enable them to give their detailed replies. Since there are some allegations against the corporators, they should have been given an opportunity to rebut it. Being aggrieved by the said notice, a writ petition being WP(C) No. 541 of 2019 was filed on 09-07-2019 in which this court had issued notice to the respondents. Thereafter, the said suspension order dated 15-07-2019 was issued and being aggrieved by it, the instant writ petition has been filed by the petitioner questioning it on the inter-alia grounds that the Municipal Commissioner failed to convene a special meeting for consideration of 'No-Confidence Motion' against the Mayor pursuant to the said requisition dated 26-06-2019; that the State Government, in order to defeat the very purpose of the said requisition, issued the impugned order dated 15-07-2019; that it was malafide, arbitrary and illegal; that since there were certain allegations against the corporators, the show cause notice ought to have been issued to them before the suspension order was issued by the State Government and that the issuance of the impugned order dated 15-07-2019 was arbitrary and malafide.

[4.5] On 18-07-2019 when the matter was taken up for consideration, this Court permitted the petitioner to inspect the records of the Corporation who shall furnish copies of the documents. An additional affidavit was filed stating that after inspection, the petitioner identified certain documents numbering about 10 pages but the respondent No.2 failed to furnish copies thereof on the ground of his busy schedule. In addition thereto, it has been stated that various irregularities have been committed by the Mayor of the Corporation (now under suspension) in connivance with the so called VVIP as regards the vehicles being auctioned, orders being issued towards parking without authority, money being enchased without the approval of the Corporation, auction notice being shown to have been published, though not published etc.

[5] In the affidavit filed by the respondent No.2, it has been stated that in respect of the requisition dated 26-06-2019 received by him, a communication dated 28-06-2019 has been sent to the higher authority seeking approval for convening a special meeting for consideration of 'No-confidence Motion' against the Mayor. The reply to the show cause notice dated 03-07-2019 was submitted by him to the Joint Secretary (MAHUD) after consultation with the concerned officers of the Corporation and he being the executive officer of the Corporation as laid down under Section 12 P of the Act, 1994, submitted the reply in good faith and in the interest of the Corporation. An effective reply has also been furnished in the minutes of the Exit meeting on audit of the accounts of the Municipal Commissioner held on 22-07-2019 in the presence of the representatives of the Principal Accountant General (Audit). The stand taken by the respondent No.1, State of Manipur in an affidavit filed by the Under Secretary (MAHUD) is that under the provisions of Section 205 of the Act, 1994, the State Government is empowered either to suspend or dissolve the Corporation for a period of six months after giving an opportunity of being heard to it on the grounds mentioned therein. The impugned order was issued based on materials and in particular, the report dated 14-01-2019 of the Local Fund Audit. The show cause notice was served upon the Corporation and after the receipt of the reply thereto, the State Government examined it. The State Government being not satisfied with the explanations given by the Corporation as regards the financial irregularities, issued the impugned order suspending the Corporation for six months. The provisions of Section 205 and Section 12J(i) of the Act, 1994 operate in different fields and do not overlap each other in their jurisdiction. Since the notice has been served upon the Corporation, there is no need of serving notices upon the individual corporators. There is no material produced by the petitioner to show that it is only the Mayor who is responsible for the said 16 financial irregularities. On perusal of various orders issued by the Mayor, it is seen that they are temporary orders and the petitioner is unable to show that the mayor has no authority to issue such orders. The allegation that the petitioner was not furnished copies of documents, is denied for the reason that in compliance with this Court's order, the Commissioner issued an order dated 19-07-2019 permitting him to obtain copies of the documents.

W.P.(C) No. 569 of 2019

[6.1] The order dated 16-07-2019 issued by the State Government appointing Joint Secretary (MAHUD), Government of Manipur to exercise and perform the powers and duties of the Imphal Municipal Corporation is under challenge in this writ petition.

[6.2] According to the petitioner, a requisition dated 26-06-2019 was submitted to the Municipal Commissioner by 18 Corporators including him for convening a special meeting for consideration of the 'No-Confidence Motion' against the Mayor. Instead of taking appropriate action thereon, the State Government issued a show cause notice dated 03-07-2019 to the Corporation as to why it should not be suspended on the ground of financial irregularities. A reply thereto was submitted by the Municipal Commissioner and after the receipt thereof, the State Government issued an order dated 15-07-2019 suspending the Corporation for six months. On the next day, i.e., 16-07-2019, the State Government issued the impugned order appointing the Joint Secretary to exercise the power and functions of the Corporation. Being aggrieved by this order, the instant writ petition has been filed by the petitioner.

[7.1] In order to decide the issue involved herein, the scheme of the Act, 1994 and in particular, the provisions thereof needs to be examined and understood by this Court. Chapter-IIIA deals with the

(1) provides that every Municipal Corporation shall consist of such number Corporators as may be fixed by the State Government. Sub-section (2) provides that all the seats in a Municipal Corporation shall be filled by persons chosen by direct election from the territorial constituencies to be known as wards in municipal area. There shall be a Chairperson and a Vice-Chairperson who shall be known as the Mayor and the Deputy Mayor for the Corporation. The procedure for removal of the Mayor or the Vice-Mayor is provided in Section 12J. Section 12K provides that if the motion of no-confidence against the Mayor or the Deputy Mayor is defeated, no fresh motion against any of them shall be brought within a period of one year from the date of defeat of motion. The power and functions of Mayor is provided in Section 12M. In terms of Section 12P, there shall be a Municipal Commissioner who shall be the executive officer of the Corporation and shall function as the Secretary to the Corporation. He shall be appointed by the State Government under the terms and conditions as may be prescribed by it. Section 12Q provides that the provisions of this Act as are applicable to the Nagar Panchayat or the Municipal Council, shall apply mutatis mutandis in the case of the Municipal Corporation. As seen from the above provisions, the scheme of the Act and in particular, the Chapter-IIIA dealing with the Municipal Corporation, is that the Corporation shall be managed and administered by the corporators elected by the people of the municipal area. It is in tune with the democratic principle and in other words, it can be said to be the general rule.

[7.2] In the backdrop of the above provisions, the subject matter in issue relates to the interpretation of Section 205 of the Act, 1994 which reads as under:

"205. Power to suspend or dissolve Nagar Panchayat or Council in certain cases.- If in the opinion of the Government, a Nagar Council, as the case may be, is not competent to perform or persistently make default in the performance of the obligatory duties imposed upon it by or under this Act or exceed or abuse its power the Government may by notification, stating the reasons for so doing declare such Nagar Panchayat or Council to be incompetent or in default or to have exceeded or abused its power, as the case may be, and suspend or dissolve such Nagar Panchayat or Council;

Provided that a Nagar Panchayat or a Council, as the case may be, shall be given a reasonable opportunity of being heard before its suspension or dissolution;

Provided further that when a Nagar Panchayat or a Council, as the case may be, is suspended or dissolved, the Government may appoint any person or persons to exercise and perform the powers and duties of the Nagar Panchayat or the Council during the period of suspension or dissolution until the new Nagar Panchayat or the Council, as the case may be, is constituted:

Provided also that the Government shall, before the expiry of a period of six months from the date of dissolution of the Nagar Panchayat or the Council, Cause fresh elections to be held for the constitution of a new Nagar Panchayat or a new Council.

Provided also that an order of suspension of the Council or Nagar Panchayat so issued, as the case may be, shall, unless revoked or extended, cease to operate on the expiration of a period of six months from the date of the suspension order but no such order of suspension, in any case, shall remain in force for more than one year."

Section 205 provides that if in the opinion of the Government, a Nagar Panchayat or a Council is not competent to perform or persistently make default in the performance of obligatory duties imposed upon it or under this Act or exceed or abuse its power, the Government may by notification, stating the reasons for so doing, declare such Nagar Panchayat or Council to be incompetent or in default or to have exceeded or abuse its power to suspend or dissolve such Nagar Panchayat or Council. This section does not mention anything about the Municipal Corporation but in terms of Section 12Q, the provisions of this Section 205 will apply to the Municipal Corporation. The words "competent", "exceed", "abuse" etc. are not defined in the Act and therefore, they should be understood with reference to the dictionary meaning. This power conferred upon the State Government is an exception to the general rule as contained in Chapter IIIA concerning the Municipal Corporation and therefore, the same shall be exercised sparingly. It is incumbent upon the State Government not to make the exception a general rule and if it does so, it will lead to destruction of the democratic system. This power of the State Government can be exercised on any of the grounds mentioned therein-one, if the Corporation is not competent to perform its duties; two, if it persistently makes default in the performance of its obligatory duties; three, if it exceeds its power and four, if it abuses its power. To exercise its power, the State Government shall state reasons and in other words, it shall record reasons for exercising its power of suspension. In addition thereto, the first proviso states that the Corporation shall be given a reasonable opportunity of being heard before it suspension.

[8] It has been submitted by Shri N. Jotindro, learned counsel appearing for the petitioners that before the Corporation being suspended by the State Government, no notice was given to the corporators; that such notice ought to have been given to the corporators for the reason that it is the corporators who ultimately suffer on account of the suspension of the Corporation; that the suspension of the Corporation was malafide and the impugned order was issued by the State Government with a view to thwart or frustrate the requisition dated 26-06-2019 submitted by the corporators including the petitioner for convening a special meeting of 'No-Confidence Motion' against the Mayor; that the issuance of the impugned order was highly a politically motivated one and that if there was/ is any financial irregularity being committed by the corporators, an appropriate action could have been taken against them under the provisions of Manipur Employees Liabilities Act or under the provisions of Section 29 of the Act for their removal. The reply given by the Municipal Commissioner was without any authority of the Corporation. Combating his contention, Shri M. Rarry, learned Addl. Advocate General has submitted that the power of suspension is conferred upon the State Government by the Act and therefore, no one can stop the State Government from exercising its power. The requisition submitted by the corporators including the petitioner for convening a special meeting of 'No-Confidence Motion' against the Mayor has nothing to do with the exercise of its power by the State Government under Section 205 of the Act, 1994. Shri Y. Nirmolchand, learned counsel appearing for the Corporation has endorsed the argument of Shri M. Rarry and in addition thereto, he has submitted that it is the collective responsibility of the Corporation and the decisions are taken by it on the basis of majority and therefore, when an action under Section 205 is to be taken by the State Government, it is to be taken against the Corporation.

[9] There can be no any dispute amongst the parties that the State Government is empowered by and under the provisions of the Act, 1994 to suspend or dissolve the Corporation on any of the grounds mentioned therein. Before issuing any order of suspension, the State Government ought to get itself satisfied on the basis of materials that the Corporation is not competent to discharge its duties and function or it has exceeded or abused its power and function, for which reasons are to be recorded by it. This Court cannot substitute its opinion to that of the State Government and all that this Court can examine, is as to whether the decision taken by the State Government is based on materials or not. On perusal of the impugned order dated 15-07-2019, it is seen that the decision of the State Government is based on the report dated 14-01-2019 of the Local Fund Audit, a copy of which has been filed along with the writ petition being WP(C) No.559 of 2019 as Annexure-A/4. In the said report, as many as 16 irregularities have been enumerated which are alleged to have been committed by the Corporation. The said report is cryptic and only findings are given without any explanation thereof. However, since the validity and correctness of the said report is not the subject in issue in these writ petitions, this Court cannot go into it and no observation can be made by this Court in respect thereof. Moreover, the said report appears to have not been challenged by anyone.

[10] It has vehemently been submitted by the counsel appearing for the petitioners that the action of the State Government is malafide and the impugned order was issued to thwart the requisition submitted by the corporators including the petitioner for convening a special meeting of 'No-Confidence Motion' against the Mayor. It may be noted that the report of the Local Fund Audit was prepared and submitted as back as on 14-01-2019 and if the State Government really desired to take action against the Corporation, it could have done so immediately after the report being submitted by the authority concerned. But it did not do that. The show cause notice dated 03-07-2019 was issued immediately after the requisition having been submitted by the corporators. The contention of the learned counsel appearing for the petitioners that the impugned order was issued to thwart or frustrate the requisition, might be correct to some extent but since there is no material on record to show that, this Court cannot go by the presumption. In other words, there is no material on record to show that the State Government's action was unreasonable and malafide. On 18-07-2019 when the matter was taken up for consideration, this Court granted the petitioner an opportunity to inspect the records maintained by the Corporation. Even then, he could not produce materials to substantiate his case. With regard to the reply given by the Commissioner, his contention appears to be correct for the reason that it is not based on the collective decision or the resolution taken by the Corporation. The reply to be filed by the Commissioner is on behalf of the Corporation but it has been filed by him without it being backed by a collective decision. It has been contended by him as regards the installation of solar lamps that there is no any fault on his part and therefore, there is no reason as to why he should be penalized for it. Further, the contention of the counsel appearing for the petitioner is that it the Mayor who has committed many financial irregularities, for which requisition has been submitted for his removal. But it is nowhere stated in the report of the Local Fund Audit that the financial irregularities as enumerated therein have been committed by the Mayor. The irregularities are alleged to have been committed by the Corporation. As has been observed hereinabove, the report of the Local Fund audit appears to have not been challenged by anyone and as long as it is not quashed and set aside by an appropriate forum, the decision of the State Government based on it cannot be said to be illegal. As regards the contention that no notice was served upon the corporators, it may further be noted that it is nowhere stated in the first proviso that in an action to be taken by the State Government for suspension of the Corporation, notice ought to be given to all the corporators. Therefore, his contention has no substance and merit.

[11] Many decisions rendered by the Hon'ble Supreme Court have been cited and relied upon by the counsel appearing for the parties in support of their contentions but since the facts of those cases are not identical to that of the present case, they will have no application at all. Moreover, the interpretation of Section 205 of the Act, 1994 is not involved in any of those cases and therefore, they are not referred to herein. One aspect which needs to be taken into account by the State Government is that the Municipal Corporation is a local body as envisaged in Chapter-IXA of the Constitution of India and its corporators are to be elected by the people of the municipal area. In other words, the Corporation is to be managed and administered by the elected representatives of the municipal area. Keeping in mind this aspect, the power conferred under the provisions of Section shall be exercised sparingly. The Corporation being a legal institution, is manned by the corporators and if any of the corporators is found to have indulged in any malpractice or financial irregularity, an action can be taken against him for his removal or under any law applicable to it. It is the high time for the corporators and the Commissioner, IMC to get themselves acquainted and well versed with the provisions of the Act, 1994 before any action being taken by them in order to obviate any litigation in future. It is not a good sign or a trend in a democratic country where the management and administration of a local body as envisaged in the Constitution of India, are to be taken over quite often by the Government. In order to avoid such eventualities, it is the duty of such a local body to ensure that its management and administration are done strictly in accordance with law.

[12] For the reasons stated hereinabove, the writ petitions being WP(C) No.559 of 2019 and 569 of 2019 are dismissed as devoid of any merit. So far as the writ petition being WP(C) No.541 of 2019 is concerned, it is partly allowed with the direction that in terms of the requisition dated 26-06-2019 submitted by the corporators including the petitioner, the Municipal Commissioner shall convene a special meeting for consideration of 'No-Confidence Motion against the Mayor' within two weeks from the date of expiry of six months of suspension of the Corporation. There shall be no as to costs.