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Judgment
M.V. Muralidaran, J
The petitioners, who are Councillors of Ward Nos.2, 4, 6, 8 and 9 of Lamlai Municipal Council, Lamlai, Manipur, have filed these writ petitions with the following prayers:
W.P. (C) No.764 of 2019:
Issue a writ of certiorari or mandamus or any other appropriate writ of the like nature for quashing and setting aside the impugned show cause notification/order dated 12.9.2019 issued by the Under Secretary (MAHUD), Government of Manipur as illegal, arbitrary and mala fide in nature as the same has been issued in violation of the principles of natural justice to the petitioners as there are reasonable apprehension for taking actions by the Commissioner/Joint Secretary/Under Secretary (MAHUD), Government of Manipur against the Councillors without affording any opportunity in the same manner and method as have done in the case of Imphal Municipal Corporation by taking actions under Section 205 of the Manipur Municipalities Act, 1994 coupled with a prayer to suspend/stay the aforesaid impugned notification/order dated 12.9.2019 issued by the Under Secretary (MAHUD), Government of Manipur or direct to maintain status quo as on date till final disposal of the writ petition.
W.P.(C) No.783 of 2019 :
Issue a writ of certiorari or mandamus or any other appropriate writ of the like nature for quashing and setting aside the impugned show cause notification/order dated 16.9.2019 issued by the Under Secretary (MAHUD), Government of Manipur under Section 205 of the Manipur Municipalities Act, 1994 thereby suspending the Lamlai Municipal Council for a period of 6 months as illegal, arbitrary and mala fide in nature as the same has been issued in violation of the principles of natural justice to the petitioners coupled with the prayer to suspend/stay the aforesaid impugned notification/order dated 16. 9.2019 issued by the Under Secretary (MAHUD), Government of Manipur till final disposal of the writ petition.
WP(C) No.790 of 2019:
Issue a writ of certiorari or mandamus or any other appropriate writ of the like nature for quashing and setting aside the impugned appointment order dated 20.09.2019 issued by the Under Secretary (MAHUD), Government of Manipur thereby appointing the Chief Executive Officer (CEO), Imphal East Zilla Parishad as an Administrator of Lamlai Municipal Council to exercise and perform the powers and duties of the Lamlai Municipal Council during the period of suspension in addition to his normal duties, without any' extra remuneration, with immediate effect and until further order in public interest as illegal, arbitrary and mala fide in nature as the same has been issued soon after the issuance of the suspension notification/order dated 16.9.2019 issued by the Under Secretary (MAHUD), Government of Manipur thereby suspending Lamlai Municipal Council which is in violation of the principles of natural justice and also in violation of the Hon'ble Court's interim order dated 16.9.2019 passed in W.P.(C) No.764 of 2019 coupled with a prayer to suspend/stay the said impugned appointment order dated 20.9.2019 pending final disposal of the instant writ petition.
Since parties and the issue involved are one and the same, all three writ petitions are taken up together and disposed of by this common order.
Brief facts, which led to the filing of the writ petitions are as under:
The petitioners were elected in the month of January, 2016 as Councillors of Ward Nos.2, 4, 6, 8 and 9 respectively of Lamlai Municipal Council and certificates of election were also issued by the Returning Officer on 15.1.2016 to them. On 27.8.2019, a complaint has been given by one S.Itocha Singh, resident of Ward No.4, alleging corruption regarding the schemes of Housing for all, construction of Latrines and Urinals etc. against the petitioners. After the receipt of the complaint, the Under Secretary (MAHUD), Government of Manipur, took up the said matter and forwarded the same by way of letter dated 29.8.2019 to the Director (MAHUD), Manipur and the Executive Council to furnish comments on the matter.
Before getting reply in connection with the letter dated 29.8.2019, the Joint Secretary (MAHUD) had issued a show cause notice on 31.8.2019 calling upon Lamlai Municipal Council to furnish an explanation within a period of 7 days from the date of issue of the said show cause notice. On 5.9.2019, the petitioners have received show cause notices dated 2.9.2019 from the Executive Officer, Lamlai Municipal Council along with audit report and soon after the receipt of show cause notices, the petitioners have submitted their respective reply on 05.09.2019 itself.
Challenging the validity of the show cause notice dated 31.8.2019, the petitioners have filed W.P.(C) No.710 of 2019 before this Court. By an order dated 6.9.2019, the said writ petition was disposed of by directing the respondents therein to consider and dispose of the show cause statement submitted on 5.9.2019 within a week and till the disposal of the said replies, no adverse order shall be issued by the respondents pursuant to the notice dated 31.8.2019.
It is stated that the show cause notice which had been given to the Councillors by the Executive Officer dated 2.9.2019 has not been considered by the Executive Officer. However, the Under Secretary (MAHUD), by the impugned notification/order dated 12.9.2019 has issued an order in the name of compliance of the order dated 6.9.2019 passed in W.P.(C) No.710 of 2019 disposing of the reply dated 06.9.2019. Challenging the order dated 12.9.2019, the petitioners have filed W.P.(C) No.764 of 2019 stating that since the Executive Officer, Lamlai Municipal Council has not forwarded the show cause statement dated 5.9.2019 submitted by the petitioners, the impugned notification/order dated 12.9.2019 issued by the Under Secretary (MAHUD) is liable to be quashed.
According to the petitioners, W.P.(C) No.764 of 2019 was moved on 16.9.2019 and notice was ordered to the respondents therein. While issuing notice, this Court, fixed the hearing of the matter on 20.9.2019 and by way of interim order, the respondents have been directed not to take any adverse actions. However, the competent authority hastily issued the impugned order dated 16.9.2019 suspending Lamlai Municipal Council for a period of six months with immediate effect. Stating that the impugned order dated 16.9.2019 is in violation of the order of this Court passed in W.P.(C) No.764 of 2019, the petitioners have filed W.P.(C) No.783 of 2019 seeking to quash the suspension order.
It is alleged by the petitioners that consequent upon the suspension of Lamlai Municipal Council, on 20.9.2019, the Government appointed Shri Ng. Jogendra Khumancha, MCS, Chief Executive Officer, Imphal East Zilla Parishad as an Administrator of Lamlai Municipal Council during the period of suspension in addition to his normal duties. Challenging the said appointment, the petitioners have preferred W.P.(C) No.790 of 2019.
Resisting W.P.(C) No.764 of 2019, the respondent State filed affidavit-in-opposition stating that in response to the Government letter dated 29.8.2019, the Executive Officer, Lamlai Municipal Council submitted his reply dated 29.8.2019 and after careful examination of the said reply, a show cause notice dated 31.8.2019 was issued to the petitioners. The said show cause notice was challenged before this Court by filing writ petition and the same was disposed of on 6.9.2019. The Executive Officer, Lamlai Municipal Council submitted their reply to the show cause notice dated 6.9.2019, which was duly examined by the Government, which issued the impugned notification dated 12.9.2019 stating that the irregularities mentioned in the show cause notice have not been satisfactorily explained.
Denying the allegations set out in W.P.(C) No.783 of 2019, the respondent State Filed affidavit-in-opposition stating that there is no question of violation of the order of this Court, as the notification dated 16.9.2019 for suspension of Lamlai Municipal Council was issued purely in compliance with the order dated 6.9.2019 passed in W.P.(C) No.710 of 2019. It is stated that the replies submitted by the petitioners were disposed of before issuing the suspension order dated 16.9.2019 in compliance with the order of this Court dated 6.9.2019. According to the respondent State, since an Administrator is needed for smooth functioning of the Council after its suspension, the Government appointed the Chief Executive Officer, Imphal East Zilla Parishad as the Administrator of Lamlai Municipal Council vide order dated 20.9.2019.
Assailing all three orders impugned in these writ petitions, viz., 12.9.2019; 16.9.2019 and 20.9.2019, the learned counsel for the petitioners submitted that all the above three orders have been passed by the concerned authority without affording opportunity of hearing to the petitioners and therefore, all the above three orders are liable to be set aside on the sole ground of violation of principles of natural justice.
The learned counsel for the petitioners urged that without considering the show cause notices, which had been given to the Councillors by the Executive Officer, Lamlai Municipal Council dated 2.9.2019 and also the reply dated 5.9.2019 given by the petitioners to the said show cause notice dated 2.9.2019, the Under Secretary (MAHUD), Government of Manipur, had issued the impugned order dated 12.9.2019 in the name of compliance of the order dated 6.9.2019 passed in W.P.(C) No.710 of 2019, which is totally misconceived. He would submit that the impugned order dated 12.9.2019 is not in purported compliance of the order dated 6.9.2019 passed in W.P.(C) No.710 of 2019.
The learned counsel further submitted that when W.P.(C) No.764 of 2019 filed challenging the order dated 12.9.2019 was taken up for hearing on 16.9.2019, this Court issued notice to the respondents and also fixed the hearing of the matter on 20.09.2019. This Court further directed the respondents not to take any adverse action till 20.9.2019, which is Friday. According to the learned counsel, the said interim order came to be passed by this Court at about 2.30 P.M. However, the respondent authority in a hurried manner issued the impugned order dated 16.9.2019 at 4.00 P.M., thereby suspending Lamlai Municipal Council for a period of six months. This, according to the learned counsel for the petitioners, is in violation of the order dated 16.9.2019 passed by this Court in W.P.(C) No.764 Of 2019.
As far as the challenge made in appointing the Administrator is concerned, learned counsel for the petitioners submitted that since orders dated 12.9.2019 and 16.9.2019 were passed without hearing the petitioners and/or the Council, the impugned appointment of Administrator dated 20.9.2019 is arbitrary in nature and therefore, the same is liable to be quashed.
Per contra, the learned counsel for the respondent State submitted that the Government of Manipur, after careful examination of the replies submitted by Lamlai Municipal Council and taking note of the financial irregularities pointed out by the statutory expert under the Manipur Local Fund (Accounts & Audit) Act, 1976, issued a show cause notice dated 31.8.2019 to the Executive Officer of the Council. He would submit that the said notice dated 31.8.2019 was challenged by the petitioners by filing a writ petition and by an order dated 6.9.2019, while disposing of the writ petition, this Court, directed the respondents therein to dispose of the replies within a week and till the disposal of replies, no adverse order shall be passed.
The learned counsel for the respondent State further submitted that the Government had issued the impugned suspension order after examining the reply submitted by the Executive Officer. Since the suspension order dated 16.9.2019 is based upon the expert opinion of the statutory authority, the same may not be interfered with.
The learned counsel for the respondent State then argued that after suspension of the Council since an Administrator is needed for smooth functioning of Lamlai Municipal Council, the Government has appointed the Chief Executive Officer of Imphal East Zilla Parishad as an Administrator of Lamlai Municipal Council during the period of suspension vide order dated 20.9.2019, which is in accordance with law and therefore, there is no ground to interfere with the order dated 20.9.2019.
I have considered the submissions made by the learned counsel appearing on either side and also perused the materials available on record.
The grievance of the petitioners is that the Under Secretary (MAHUD), Government of Manipur, has passed the impugned orders without affording sufficient opportunity of hearing to the petitioners and in fact, the impugned orders have been passed without any basis and therefore, they have to be set aside.
On the other hand Mr. Lenin Hijam, the learned Addl. Advocate General who appears for the respondent State submitted that after examining the relevant materials on record, the respondent State had passed the impugned orders and therefore, no interference is called for.
The petitioners are elected Councillors of Ward Nos.2, 4, 6, 8 and 9 of Lamlai Municipal Council. On 27.8.2019 one Shri S.Itocha Singh, a resident of Ward No.4 has given a complaint against Lamlai Municipal Council and its Councillors alleging corruption regarding the schemes of Housing for all, construction of Latrines and Urinals etc. The Under Secretary (MAHUD), Government of Manipur, took up the complaint and forwarded the same to the Director (MAHUD) and the Executive Officer, Lamlai Municipal Council calling for comments on the matter vide a letter dated 29.8.2019. Before giving any reply by Lamlai Municipal Council, pointing out certain irregularities, on 31.8.2019, the Government had issued a show cause notice calling upon Lamlai Municipal Council to furnish an explanation within a period of seven days from the date of issue of the show cause notice. The following are the irregularities pointed out in the show cause notice dated 31.8.2019:
(i) Non maintenance of basic records.
(ii) Non preparation of budget.
(iii) Maintenance of accounts-observation thereon.
(iv) Drawal of self cheque and payment made by cash violating Government orders- Rs.50.02 lakhs.
(v) Irregular award of the work "toll tax collection".
(vi) Suspected misappropriation.
(vii) Execution of work under 14th F.C. Award- observation therein Rs.8.92 lakh. (viii)Incurrence of expenditure without due formalities.
(ix) Non-maintenance of Cash Book of the Ward Development Committees.
Referring to the irregularities stated in the show cause notice dated 31.8.2019, the Executive Officer of Lamlai Municipal Council, issued show notice dated 2.9.2019 to all the Councillors calling upon them to furnish a reply within seven days from the date of issuance of the said show cause notice. 0n 5.9.2019, the petitioners have submitted their explanation to the show cause notice dated 2.9.2019 and in their explanation/reply, the petitioners stated the reasons item wise.
Apprehending suspension like Imphal Municipal Corporation adopted under Section 205 of the Manipur Municipalities Act, 1994, the petitioners have filed W.P.(C) No.710 of 2019 before this Court seeking to consider and dispose of the replies dated 5.9.2019 submitted to the show cause notice dated 2.9.2019 within a week. In the said writ petition, the petitioners have also prayed for an order to the effect that no adverse order shall be issued by the respondents therein pursuant to the notice dated 31.8.2019. By an order dated 6.9.2019, this Court passed the following order:
"Heard Shri N.Jotendro, learned senior counsel appearing for the petitioners and Shri Kh.Athouba, learned Government Advocate appearing for the respondents.
The validity and correctness of the show cause notice dated 31.08.2019 is under challenge on the ground that the notices were not issued to the Councillors of the Lamlai Municipal Council. By the said show cause notice, a period of 7 days was given for giving reply to the show cause. Today when the matter is taken up for consideration, Shri N.Jotendro, learned senior counsel appearing for the petitioners submits that replies to the show cause notice have been submitted yesterday i.e., on 05.09.2019. The submission of the learned counsel for the petitioners is that the respondents may not pass any order before their replies are considered and disposed of by them.
In view of the above, this Court is of the opinion that the instant writ petition can be disposed of by directing that the respondents shall consider and dispose of the said replies within a week and till the disposal of the replies no adverse order shall be issued by the respondents pursuant to the notice dated 31.08.2019. It is ordered accordingly.
A copy of this order may be furnished to Shri N.Jotendro, learned senior counsel appearing for the petitioner provided he moves an application today itself.
The instant writ petition stands disposed of."
(emphasis supplied)
According to the petitioners, they have conveyed the order dated 6.9.2019 passed in W.P.(C) No.710 of 2019 to the respondent authorities through their counsel on 07.09.2019 and 09.09.2019 respectively. However, without considering the replies submitted by them and the order of this Court, the Under Secretary (MAHUD), Government of Manipur, passed the impugned order dated 12.09.2019 disposing of the reply submitted by the Executive Officer, Lamlai Municipal Council as devoid of merit. The impugned order/notification is extracted herein below:
NOTIFCATION
Imphal, the 12th September, 2019
No.2/19/2019-MAHUD: Whereas the Government issued a Show Cause Notice to Lamlai Municipal Council vide Note No.2/19/2019-MAHUD dated 31st August, 2019 with a direction to give an explanation and clarification regarding various allegations of Non cooperation, Non maintenance of basic records, etc.
And, Whereas, Lamlai Municipal Council vide letter
No.1/1/2019-LMC dated 6th September, 2019 submitted parawise explanation/reply to the above mentioned Show Cause Notice;
And, Whereas, Audit Report submitted by Local Fund Audit vide letter No.3/13/(6)/79-LFA dated 20th August, 2019 regarding accounts of Lamlai Municipal Council showed various irregularities in financial management, maintenance of records, implementation of works, etc. ;
And, Whereas, the written explanation/reply furnished by Lamlai Municipal Council have been carefully examined and found that, Lamlai Municipal Council have not satisfactorily and appropriately explained the allegations/charges as indicated in the "Show Cause Notice" and the Paras as indicated in the Local Fund Audit Report;
Now, therefore, in view of the above facts, and in compliance of Hon'ble High Court's Order dated 06.09.2019 passed in W.P.(C) No. 710 of 2019, the reply submitted by the Executive Officer, Lamlai Municipal Council vide letter No.1/1/2019-LMC dated 6th September, 2019 is hereby disposed of as being "devoid of merit". By Orders & in the name of the Governor
Sd/-xxx
(Mohd. Yasser Ahmed Khan)
Under Secretary (MAHUD)
Government of Manipur.
Challenging the impugned order dated 12.09.2019, the petitioners have preferred W.P.(C) No.764 of 2019 contending that without giving an opportunity of hearing, the same has been passed by the Under Secretary (MAHUD), Government of Manipur. On a perusal of the impugned order dated 12.09.2019, it is seen that the Under Secretary (MAHUD), Government of Manipur has simply disposed of the reply submitted by the Executive Officer of Lamlai Municipal Council and there is no whisper in respect of the replies submitted by the petitioners to the show cause notice, which was issued by the Executive Officer, Lamlai Municipal Council dated 02.09.2019 for the same set of irregularities pointed out in the show cause notice dated 31.8.2019.
On a perusal of the impugned order dated 12.09.2019, it also seen that before passing the said order, the Under Secretary (MAHUD) has not either heard the petitioners or Executive Officer of Lamlai Municipal Council and without hearing the parties concerned, the Under Secretary (MAHUD) has passed the order dated 12.09.2019.
When this Court, in an earlier occasion in W.P.(C) No.710 of 2019 directed the respondents to consider and dispose of the replies within a week, without considering the replies dated 05.09.2019 submitted by the petitioners, the Under Secretary has simply disposed of the reply dated 06.09.2019 said to have been submitted by the Executive Officer of Lamlai Municipal Council, which would clearly establish the violation of principles of natural justice. When the Under Secretary (MAHUD), Government of Manipur disposed of the reply of the Executive Officer of Lamlai Municipal Council, he ought to have heard the petitioners also, as the petitioners being the Councillors of Lamlai Municipal Council and the allegations set out in the two sets of show cause notices are one and the same.
This Court had the benefit of perusing the original Office file of the first respondent with respect to the impugned proceedings produced before this Court by the learned counsel for the respondent State. On a perusal of the File, it is seen that on 06.9.2019, the Executive Officer of Lamlai Municipal Council has submitted his explanation to the show cause notice. This Court also finds the individual replies given by the petitioners dated 02.09.2019 to the show cause notices issued to them.
When serious allegation of irregularities are levelled against Lamlai Municipal Council and Lamlai Municipal Council had issued show cause notice to the petitioners calling upon reply for the same set of irregularities as stated in the show cause notice dated 31.8.2019, it is necessary on the part of the Under Secretary (MAHUD) to hear the petitioners also, who are Councillors of Lamlai Municipal Council. Without giving an opportunity of hearing to the Executive Officer of Lamlai Municipal Council and without examining him or its Councillors like the petitioners, the impugned order dated 12.09.2019 came to be issued by the Under Secretary (MAHUD) rejecting the reply dated 06.09.2019 submitted by Lamlai Municipal Council. Further, while rejecting the reply of Lamlai Municipal Council, the Under Secretary (MAHUD) has not considered the reply given by the petitioners when there is a direction to the respondent State to consider the replies given by the petitioners in W.P.(C) No.710 of 2019. Any order much less the impugned order dated 12.09.2019 passed without hearing the Executive Officer of Lamiai Municipal Council or its Councillors is clear violation of principles of natural justice.
The doctrine of natural justice is a facet of fair play in action. No person shall be saddled with a liability without being heard. In administrative law, this doctrine has been extended when a person is made liable in an action without being heard.
Principles of natural justice do not supplant the law but merely supplement the law or even humanise it. If a statutory provision can be read consistent with the principles of natural justice, the Court could do so, for the Legislature is presumed to intend to act according to the principles of natural justice.
Principles of natural justice are not defined in any Statute. Yet, they are accepted and enforced. In practical terms, the essential principles of natural justice are (i) justice should not only be done but seen to be done; (ii) one cannot be a judge in his own cause; (iii) no party should be condemned unheard; (iv) impartial hearing must be extended to the person against whom a charge is framed to state his case; (v) final decision should be by way of a speaking order, for such an order prevents any bias or prejudice creeping into the decision. The opportunity of being heard should be real, reasonable and effective. The same should not be for name sake. It should not be a paper opportunity. Denial of opportunity may make an order void.
In a catena of decisions, the Hon'ble Supreme Court held that it shall be obligatory on the part of the judicial or quasi-judicial authority to pass a reasoned order while exercising statutory jurisdiction. In the absence of a reasoned order, it would become a tool for harassment.
Natural justice is a pervasive facet of secular law, where a spiritual touch enlivens legislation, administration and adjudication to make fairness a creed of life. The principles of natural justice or fundamental principles of procedure for administrative action are neither Fixed nor prescribed in any code. Natural justice has meant many things to many writers, lawyers and system of law, it has many color and shades and many forms and shapes.
In Union of India and another v. Tulsiram Patel and others, (1985) 3 SCC 398, the Hon'ble Supreme Court held that as Article 14 of the Constitution is the Constitutional Guarantee to the principles of natural justice, it is thus violative of the fundamental right guaranteed by Article 14 from non-supply of relevant material relied upon for reaching adverse conclusion having civil or evil consequences and non-affording of hearing which are the substantive rights violation and not of mere procedural irregularity amounts to violation of principles of natural justice and same is applicable to not only administrative, but to quasi judicial orders.
Principles of natural justice are those rules which have been laid down by the Courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice. Natural justice is the essence of fair adjudication, deeply rooted in tradition and conscience, to be ranked as fundamental. The purpose of following the principles of natural justice is prevention of miscarriage of justice.
Thus, the doctrine of principles of natural justice and audi alterm partem are part of Article 14 of the Constitution. For that proposition Tulsiram, supra, placed reliance on the Latin maxim - qui aliquid statuerit parte inuaudita altera, aequum Iicet dixerit, haud aequum facerit i.e., he who shall decide anything without the other side having been heard, although he may have said what is right, will not have done what is right. It is stated therefrom that the principles of natural justice have thus come to be recognised as being a part of the guarantee contained in Article 14 of the Constitution under the concept of equality which is nothing but violation of Article 14 of the Constitution.
Where the principles of natural justice are not followed, the order is only voidable and it can be cured with a direction to afford opportunity to the petitioner of being heard. Even when the authority has statutory power to take action without hearing, it would be arbitrary to take action without hearing and thus, violative of Article 14 of the Constitution. In the case on hand, as stated supra, the Under Secretary (MAHUD), Government of Manipur, has issued the impugned order dated 12.09.2019 without giving fair opportunity of hearing to either the petitioners or the Executive Officer of Lamlai Municipal Council. Therefore, this Court is of the firm opinion that the matter required to be ' considered by the same authority, who passed the impugned order dated 12.09.2019 afresh after affording reasonable and sufficient opportunity to Lamlai Municipal Council and its Councillors viz., the petitioners and pass a reasoned order. For the said purpose, it would be appropriate to remand the matter back to the respondent State for fresh consideration as indicated above.
Coming to the suspension order dated 16.9.2019 passed by the Under Secretary (MAHUD), it is the say of the petitioners that when W.P.(C) No.764 of 2019 was moved, this Court, issued notice to the respondents and directed the matter to be listed on 20.09.2019 for hearing. By way of interim order, this Court directed the respondents not to take any adverse action till 20.09.2019. Thus, the plea of the petitioners is that soon after passing the aforesaid interim order at 2.30 P.M., the Under Secretary (MAHUD) had issued the impugned order dated 16.09.2019 at 4.00 PM. in a haste manner, thereby suspending Lamlai Municipal Council for a period of six months with immediate effect. The aforesaid act of the Under Secretary (MAHUD), according to the petitioners, is highly condemnable and prayed for initiating suo motu contempt against the respondent officials.
On the other hand, the respondent State contended that there is no question of violation of the Court's order dated 16.9.2019 and the suspension order was issued purely based on the orders passed in W.P.(C) No.710 of 2019 dated 06.9.2019. As such the reply submitted by the petitioners was disposed of before issuing the suspension order dated 16.9.2019. According to the learned counsel for the State, the interim order dated 16.9.2019 passed in W.P.(C) No.764 of 2019 was received by the Government on 18.9.2019 from the Additional Government Advocate and that the learned counsel for the petitioner has issued legal notice on 17.9.2019 bringing notice of the interim order. The said intimation, according to the respondent State, was after the suspension order dated 16.9.20t9 issued by the Department. It cannot be said that the interim order dated 16.9.20t9 passed in W.P.(C) No.764 of 2019 came to knowledge of the respondent State only on 18.09.2019.
The argument put forth by the learned counsel for the petitioners is that the respondent State has passed the impugned order dated 16.09.2019 by relying upon the provisions of Manipur Municipalities Act, L994. On a perusal of the impugned order dated 16.9.2019, it is seen that no specific provision was mentioned in the said order and the order dated 16.9.20L9 impugned was passed only after hearing the respective parties, more particularly, the petitioners herein.
The impugned order dated 16.9.2019 reads thus:
NOTIFICATION
Imphal, the 16th September, 2019
No.2/19/2019-MAHUD: Whereas the Government issued a Show Cause Notice to Lamlai Municipal Council vide Note No.2/19/2019-MAHUD dated 37't August, 2019 with a direction to give an explanation and clarification regarding various allegations of Non cooperation, Non maintenance of basic records, etc.
And, Whereas, Lamlai Municipal Council vide letter No.1/1/2019-LMC dated 6th September, 2019 submitted para wise explanation/reply to the above mentioned Show Cause Notice;
And, Whereas, Audit Report submitted by Local Fund Audit vide letter No.3/13/(6)/79-LFA dated 20th August, 2019 regarding accounts of Lamlai Municipal Council showed various irregularities in financial management, maintenance of records, implementation of works, etc.;
And, Whereas, the written explanation/reply furnished by Lamlai Municipal Council was carefully examined and it was found that, Lamlai Municipal Council did not satisfactorily and appropriately explained the allegations/charges as indicated in the "Show Cause Notice" and the Paras as indicated in the Local Fund Audit Report and in compliance of Hon'ble High Court's Order dated 06/09/2019 passed in W.P. (C) No.710 of 2019, the reply submitted by the Executive Officer, Lamial Municipal Council vide letter No.1/1/2019-LMC dated 6th September 2019 was disposed of as being "devoid of merit" vide Government orders of even No. dated 12th September, 2019.
Now, therefore, the Governor of Manipur, in exercise of the powers conferred by the provisions of the Manipur Municipalities Act, 1994 and its Amendments thereof, hereby suspends the Lamlai Municipal Council for a period of 6 (six) months with immediate effect and until further orders.
Sd/-xxx
(Mohd. Yasser Ahmed Khan)
Under Secretary (MAHUD)
Government of Mani pur. "
It appears that pending W.P.(C) No.764 of 20t9, the impugned suspension order dated 16.9.20L9 suspending Lamlai Municipal Council came to be passed by the Under Secretary (MAHUD) that too an interim order dated 16.9.2019 in W.P.(C) No.764 of 2019 to the following effect was in force:
"In respect of the suspension of the Imphal Municipal Corporation, this Court has reserved the order which is likely to be delivered in few days in order to avoid further complication in the matter, list the matter on 20.9.2019 so as to await the outcome of the said judgment and order and till then, the State Government is requested not to pass any order."\
(emphasis supplied)
When this Court directed the State Government not to pass any order, it is unfair on the part of the Under Secretary (MAHUD), Government of Manipur, to pass the impugned order dated 16.9.2019 suspending Lamlai Municipal council for a period of six months. According to the learned counsel for the respondent State, the impugned order dated 16.9.2019 was passed as per Section 205 of the Manipur Municipalities Act, 1994 and pursuant to the order dated 6,9.2019 in W.P.(C) No.710 of 2019.
Power to suspend or dissolve Nagar Panchayat or Council has been provided in Section 205 of the Manipur Municipalities Act, tgg4. Section 205 of the Act reads thus:
"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 be 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 election 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."
Thus, it is clear that reasons should be recorded while suspending the Council. In the case on hand, while issuing the impugned suspension order, the Under Secretary (MAHUD) has only stated that Lamlai Municipal Council did not satisfactorily explained the allegations/charges indicated in the show cause notice. Except the above, nothing to show that all the materials have been taken note of by the said authority. In fact, there was no discussion in respect of allegations/charges and the reply submitted by the council and the petitioners herein. Without giving proper and acceptable reasoning, the Under Secretary (MAHUD), Government of Manipur, has passed the impugned suspension order dated 16.09.2019. As stated supra, when serious irregularities levelled against the Council and its Councillors, it is the bounden duty of the Under Secretary (MAHUD) to afford an opportunity of hearing to the Council and the petitioners herein. Admittedly, in the present case, there is total silent as to affording of personal hearing to the petitioners or Council.
As per Section 205 of the Act, the State Government has been empowered to suspend the Municipal Council or Panchayat, but no time limit was mentioned in it. The Under Secretary (MAHUD) suspended Lamlai Municipal Council for a period of six months with immediate effect. It is the say of the respondent State that as per Section 21 of the General Clauses Act, the Government is empowered to pass the impugned order dated 16.9.2019. When no period was mentioned in Section 205 of the Act, how the Under Secretary (MAHUD), Government of Manipur, could suspend Lamlai Municipal Council for a period of six months. No proper and acceptable explanation forthcoming from the side of the respondent State to suspend Lamlai Municipal Council for a period of six months and the impugned suspension is contrary to the interim orders passed by this Court.
According to the petitioners, the impugned order dated 16.9.2019 also suffers on the ground of violation of principles of natural justice. By an order dated 09.10.2019, this Court granted interim stay of operation of the order dated 16.9.2019 till 04.11.2019, which was subsequently extended. As against the interim order dated 09.10.2019, the respondent State has not preferred any appeal.
When this Court directed the respondent State not to pass any orders in W.P.(C) No.764 of 2019, the Under Secretary (MAHUD) has no authority to pass the impugned suspension order dated 16.9.2019 suspending Lamlai Municipal Council for a period of six months. Moreover, the impugned order dated 16.9.2019 was passed on the same day when the interim order not to pass any order was passed. The aforesaid act of the respondent State would clearly establish that the suspension order dated 16.9.2019 was passed by the Under Secretary (MAHUD), Government of Manipur, in a hurried manner that too when the interim order was in force. Further, Section 205 of the Manipur Municipalities Act does not empower the Government to pass order of suspension for a particular period of six months. Though the Under Secretary (MAHUD), Government of Manipur, has power to pass an order to suspend the Council, in the facts and circumstances of the given case, this Court is of the view that the impugned order dated 16.9.2019 was issued in violation of the provision of Section 205 of the Manipur Municipalities Act and also while interim order not to pass any order was in force. Hence, this Court is of the view that the order dated 16.9.2019 is liable to be interfered with by this Court invoking the jurisdiction under Article 226 of the Constitution of India.
After passing the impugned suspension order dated 16.9.2019, on 20.9.2019, the Under Secretary (MAHUD), Government of Manipur, appointed Shri Ng. Jogendra Khumancha, MCS, Chief Executive Officer (CEO), Imphal East Zilla Parishad as an Administrator to exercise and perform the powers and duties of Lamlai Municipal Council during the period of suspension, in addition to his normal duties without any extra remuneration with immediate effect until further orders in public interest. The said appointment has been challenged by the petitioners in W.P.(C) No.790 of 2019 contending that the appointment of Administrator vide impugned order dated 20.9.2019 is arbitrary and mala ride in nature and also against the interim order passed in W.P.(C) No.764 of 2019 dated 16.9.2019 and therefore, the same is liable to be quashed.
Admittedly, the appointment of Administrator was made by the Under Secretary (MAHUD), Government of Manipur, when the interim order requesting the State Government not to pass any order dated 16.9.2019 in W.P.(C) No.764 of 2019 was in force.
The learned counsel for the respondent State contended that in order to smooth functioning of the Council, appointment of Administrator was made and that the Courts should be slow to interfere with the action of the respondent State. In support, the learned counsel relied upon the decision of the Hon'ble Supreme Court in the case of Secretary and Curator, Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity and others, reported in (2010) 3 SCC 732.
In Secretary and Curator, Victoria Memorial Hall, supra, the Hon"ble Supreme Court held:
"37. The Constitution Bench of this Court in University of Mysore, v. C.D.Govinda Rao, AIR 1965 SC 491 held that "normally the courts should be slow to interfere with the opinions expressed by the experts". It would normally be wise and safe for the courts to leave the decision to experts who are more familiar with the problems they face than the courts generally can be. This view has consistently been reiterated by this Court as is evident from the judgments in State of Bihar v. Dr. Asis Kumar Mukherjee, (1975) 3 SCC 602; Dalpat Abasaheb Solunke v. Dr.B.S.Mahajan, (1990) 1 SCC 305; Central Areca Nut & Cocoa Mktg. & Processing Coop Ltd. v. State of Karnataka, (1997) 8 SCC 31 and Dental Council of India v. Subharti K.K.B.Charitable Trust, (2001) 5 SCC 486."
This Court is bound to follow the ratio laid down by the Hon'ble Supreme Court in the decision cited supra and normally the Courts should be slow to interfere with the opinions expressed by the experts. However, in the case on hand, no leave was obtained by the respondent State from this Court in appointing the Administrator. When writ petitions challenging the order of suspension of Lamlai Municipal Council (W.P.No.783 of 2019) and other proceedings (W.P.No.764 of 2019) are pending, wherein interim orders were passed and also in force, it is not appropriate on the part of the respondent State in appointing the Administrator without leave of this Court. It is the bounden duty of the respondent State to obtain leave from this Court in passing such order. Therefore, in the given facts and circumstances of the case, the decision cited by the respondent State will not be applicable to their case. The petitioners being Councillors of Lamlai Municipal Council and are facing the suspension have every right to challenge the impugned appointment of Administrator before this Court. Therefore, this Court is of the view that the order appointing the Administrator pending writ petition that too when interim orders are in force is contrary to the law and natural justice.
In furtherance to the reasoning given herein above, this Court would like to make the following observations in the facts of the present case which needs emphasis:
(a) Admittedly, the action of dissolution of a democratically elected Council is a serious one and would undoubtedly visit the Councillors with serious civil consequences. Therefore, the Council and/or the Councillors ought to have been given reasonable opportunity of being heard before its dissolution. The concept of 'reasonable opportunity' is by now well established. Unless the party is made known to the adverse material proposed to be used against it, the party would be deprived of reasonable opportunity to show cause against the same or to explain the same. Conversely, no adverse material of which the party has been given no notice ought to be used by the decision maker in making the impugned decision. In the present case, while passing the impugned order, the authority concerned has indeed made reference to and relied upon some adverse material against the Councillors and the Council, without the Councillors or the Council having been given effective opportunity to meet with the same.
(b) In the case of Tarlochan Dev Sharma v. State of Punjab, reported in (2001) 6 SCC 260, the Hon'ble Apex Court was concerned with the removal of President of Municipal Council on the ground of abuse of his powers or of habitual failure to perform his duties. The provision which permitted such removal, also contemplated satisfaction with requirements of natural justice. In this context, the Hon'ble Supreme Court has held that one of the requirements of principles of natural justice is that the reasons for the proposed removal have to be communicated to the person proceeded against. The purpose of such communication is to enable him to furnish an explanation of his conduct or his act or omission which is likely to be construed as an abuse of power. The facts constituting gravamen of charge have to be communicated. It follows as a necessary corollary therefrom that what has not been communicated or not relied on in the show cause notice as a ground providing reason for the proposed removal cannot be relied upon as furnishing basis for the order of removal. The person proceeded against, has to be made aware of the precise charge which is required to meet and therefore he must be apprised of the exact content of the abuse of power attributed to him. The authority taking the decision must apply its mind also to the explanation furnished by the person proceeded against and this must appear from the order made. It was further held in the said decision that in a democracy governed by rule of law, once elected to an office in a democratic institution, the incumbent is entitled to hold the office for the term for which he has been elected, unless his election is set aside by a prescribed procedure known to law. The removal from such office is a serious matter. It curtails the statutory term of the holder of the ofhce. A stigma is cast on the holder of the office in view of certain allegations having been held proved rendering him unworthy of holding the office which he held. Accordingly, a singular or a casual aberration or failure in exercise of power is not enough. A course of conduct or plurality of aberration or failure in exercise of power and that too involving dishonest of intention is necessary. The legislature could not have intended that the occupant of an elective office, seated by popular verdict, to be shown exit for a single innocuous action or error of decision.
For the foregoing discussions, this Court is of the considered view that the impugned order dated 12.09.2019 was passed without hearing the petitioners and/or the Executive Officer of Lamlai Municipal Council and the same is in violation of the principles of natural justice and therefore, the matter requires to be considered by the Under Secretary (MAHUD), Government of Manipur after hearing the petitioners and for the said purpose, the matter is remanded to the authority concerned for fresh consideration and pass orders after affording sufficient opportunity to the petitioners and to pass a reasoned speaking order. In regard to the impugned order dated 16.9.2019 suspending Lamlai Municipal Council is concerned, in view of the discussions supra, the same was passed pending interim orders and also in a hurried manner and therefore, the same is unsustainable in law. The said issue is also remanded to the Under Secretary (MAHUD), Government of Manipur for passing fresh orders after affording sufficient opportunity to the petitioners and in the light of the orders to be passed for consideration of the replies submitted by the petitioners and Lamlai Municipal Council. Coming to the impugned appointment of Administrator, the same has been done by the Under Secretary (MAHUD), Government of Manipur, without leave of this Court and also violating the interim orders passed by this Court. The ultimate result would be the matters are remanded to the Under Secretary (MAHUD) for fresh consideration.
In the said background and also the findings arrived, this Court is of the view that the writ petitions filed by the petitioners are liable to be allowed. Accordingly, this Court passes the following orders:
(i) W.P.Nos.764, 783 and 790 of 2019 are allowed.
(ii) The impugned orders dated 12.09.2019, 16.09.2019 and 20.09.2019 are set aside.
(iii) The matters are remanded to the authority who passed the impugned orders for fresh consideration after affording sufficient personnel opportunity of hearing to Lamlai Municipal Council and the petitioners herein and pass a reasoned order, within a period of three months from the date of receipt of a copy of this order.
(iv) While considering the matter afresh, the authority concerned is directed to take note of the replies submitted by Lamlai Municipal Council as well as the petitioners.
(v) Before parting, this Court makes it clear that the authority concerned is at liberty to proceed further in the matter afresh, in the light of the observations made herein above, and this Court has not expressed any opinion on the merits of the claim of the rival parties.
(vi) No costs.