Manmohan Singh Walia vs State of Punjab and Others

V.K. Bali, J.—Manmohan Singh Walia, Member, Municipal Council, Kapurthala through present petition filed by him under Article 226 of the Constitution of India seeks issuance of writ in the nature of certiorari so as to quash order dated May 31, 1996, Annexure P-9, whereby he was removed from the membership of Municipal Council-respondent No. 2. Challenge to the afore-said order is both on merits as also that the order is actuated on account of mala fide entertained by respondents 3 to 5 against the petitioner.

Brief facts of the case reveal that petitioner was elected member of the Municipal Council, Kapurthala, in September, 1992. On October, 19, 1995 a show cause notice was issued to him along with charge-sheet. On November 10, 1995, petitioner filed reply to the show-cause notice controverting the allegations made therein. However, vide Order dated May 31, 1996 (Annexure P-9), Shri N.K. Arora Principal Secretary to the Government of Punjab, Department of Local Government, exercising the powers u/s 16(1)(a) of the Punjab Municipal Act, 1911 removed the petitioner from the membership of Municipal Council, Kapurthala. The allegation contained in the show cause notice was that the petitioner had constructed shops without sanction of the Committee near the ESI Hospital, Kapurthala in the names of his son and wife Amarjit Kaur. In response to the show cause notice, referred to above, petitioner gave a detailed reply. Annexure P-3, wherein he pleaded that a false and baseless complaint had been made against him due to political vengeance and party faction in the Nagar Council. For the last more than three years, he had been performing his duties as Member of the Nagar Council, Kapurthala honestly and from the core of his heart. He further stated that his wife Amarjit Kaur and his son Rajbir Singh and Smt. Inderjit Kaur wife of Shri Harcharan Singh and Kanwal Jit Singh son of S. Harcharan Singh had purchased land through four sale deeds jointly on June 16, 1981. Before purchasing the land, there were foundations laid in it. In the year 1985, the owners among themselves, vide an oral family partition, which was reduced into writing of January 6, !985, had divided the plots and that the shops had been constructed on a portion of the land that had come to the share of Smt. Inderjit Kaur and Kanwaljit Singh whereas remaining land which came to the share of Amarjit Kaur and Rajbir Singh, was lying still in the shape of a plot, i.e., vacant. After the family partition, Kanwaljit Singh and Inderjit Kaur had completed construction of eight shops after a lapse often years and they were the absolute owners of the shops in question. His son Rajbir Singh and wife Amarjit Kaur had no concern or connection with the construction of these shops nor were they owners of the same. The construction of the shops was completed about six years prior to his becoming member of the Nagar Council. He mentioned few other facts also in the reply to show cause notice but, as mentioned above, vide impugned order, Annexure P-9, petitioner was removed from the membership of the Municipal Council.

Mr. Sandhawalia, learned counsel for the petitioner vehemently contends that the concerned authority, while passing order, Annexure P-9, did not take into consideration of the averments made by the petitioner in his reply to the show cause notice nor looked into the connecting evidence. It is further being argued that there was tampering in the order, Annexure R-11 and the assessment register, Annexure P-14. Reference has also been made to the report of the Patwari Halwa dated December 20, 1995, Annexure P-5, wherein it has been mentioned that khasra numbers mentioned in the application were living vacant at the spot and according to mutation of partition No. 18845 the land, which was vacant, had come into the ownership of Amarjit Kaur and Rajbir Singh. Mr. Sandhawalia has also placed reliance upon Annexure R-6 vide which wife of the petitioner had written to the Municipal Council, Kapurthala that she was not owner of the shops. This letter was written on August 17, 1995. Reliance has also been placed on Annexure P-14, assessment register for the years 1993-94, 1994-95, 1995-96 and 1996-97 wherein respondents 6 to 8 have been shown to be owners of right shops. In the present petition as well, written statement has been filed by respondents 6 to 8 who have admitted that the shape belong to them and they in fact had constructed the same. As mentioned above, Mr. Sandhawalia has also taken this Court through order, Annexure R-11 dated February 6, 1996 and has been at pains to explain that word ''2'' in between the words ''the'' and ''shops'' has been mentioned later. It may be mentioned here at this stage that from these words, it is sought to be made out by the other side that Kanwaljit Singh and Inderjit Kaur were owners of only two shops. The department, on the asking of the Court, has shown the original assessment register and against entry No. 560-A, word ''8'' has been deleted and has been substituted with the word ''2''.

Mr. Sibal, learned counsel for the respondents, however, contends that the authority concerned passed the order on the material available before it and no fault can at all be found with the same.

I have heard learned counsel for the parties and gone through the records of the case carefully. It is well made out from the impugned order, Annexure P-9, that the concerned authority had neither, in details, taken the objections raised by the petitioner pursuant to the show cause notice issued to him nor had seen all the connecting evidence. This Court is not to substitute the findings of fact in a writ of certiorari and it is a fit case where the matter needs to be remanded to the concerned authority to appreciate it after considering all the objections raised by the petitioner and examining all the evidence that was either before it already or that may be produced now. The impugned order, Annexure P-9, is set aside and the matter is remitted to the Secretary to Government of Punjab, to be named by the Chief Secretary. The Secretary so named shall be other than the one who had already decided the case. It may be mentioned here that no positive finding of mala fide can be returned against the respondents 3 to 5 on the material that is available before this Court and, this Court has chosen that the matter should be decided by some body else, i.e., other than respondent No. 4, keeping in view the maxim that justice must not only be done but it must also appear to have been done. The Chief Secretary, Punjab would name the Secretary of any of the departments in the State of Punjab to decide the issue, i.e., show cause notice issued to the petitioner within a month from today and the concerned Secretary would endeavour his very best to finally decide the matter within three months from the date the parties appear before him.

This petition is allowed in the manner indicated above. Parties are, however, left to bear their own costs.