Sau. Pratibha Saurab @ Munna Tiwari vs State of Maharashtra

This Court on 11-02-2016 has passed the following order :-

"Heard Shri Shashibhushan Wahane, learned Counsel for the petitioner, Shri V.A. Thakare, learned A.P.P. for respondent nos. 1 to 4 and 14, Shri M.P. Khajanchi, learned Counsel for respondent nos. 5, 6,8 to 11, Shri N.R. Saboo, learned Counsel for respondent no.7 and Shri M.I. Dhatrak, learned Counsel for respondent nos. 12 and 13. 2. Before observing anything on merits of the controversy, we find it appropriate to know that a responsible office like the Divisional Commissioner, Amravati has filed his personal affiliated on 26.11.2015, pointing out the procedure required to be followed under the provisions of Bombay Local Funds Audit Act, 1930. It appears that the audit objection pointed out by the audit party have been replied to by the Municipal council on 26.09.2014. Property thereof needs to be verified by the local fund office and thereafter loss if any, and therefore the amount recoverable (surcharge) is liable to be worked out. 3. He affidavit though dated 26.11.2015 does not point out the steps taken by the local funds office for over a period of 13 months.

We are therefore not satisfied with that affidavit. We direct the respondent.3 to file suitable affidavit in this respect within a period of three weeks. Office to list the matter thereafter. 5. Copy of the order be furnished to learned counsel for the parties to act upon."

Thereafter on 19-08-2016, the following order has been

passed :-

" Before proceeding further to pass any effective orders, we find it proper to direct the respondent no.1 or respondent no.2 or their officers who are looking into compliance with audit objection, to evaluate the situation and to pass appropriate orders either accepting or rejecting that compliance, within six weeks from today.

While undertaking this exercise, the costs of Fogging Machines purchased by other Local Bodies all over the State of Maharashtra shall also be taken into account.

List after six weeks.

Chief Officer of the Municipal Council is present. He is exempted from personal appearance unless specifically ordered.

Steno copy of this order be supplied to learned APP free of cost, to act upon."

Because of these orders, the Deputy Regional Director Municipal

Administration has on 01-12-2016 filed an affidavit vide Stamp No.4155

of 2016. Along with affidavit the various documents are filed.

Looking to the disputed nature of documents and the subject

matter, in this jurisdiction we are not inclined to record any conclusive

finding. We keep all contentions of rival parties in relation to the data

mentioned in the said documents forming part of Annexure-R-2 open.

Annexure-R-2 is the communication sent by the Regional Deputy

Director of Municipal Administration, Amravati to his various

counterparts in other Revenue Divisions in the State of Maharashtra

inviting information about the purchase of Fogging Machines by

municipal councils under them in years 2010 onwards up to 2016 with

specifications and price. The chart mentioned (supra) after this letter

contains that data.

The Warud Municipal Council with which we are concerned in the

present matter is shown to have purchased Swing Fogging Machines

made in German for Rs.5,45,000/- in year 2010-2011. Mehkar Municipal

Council has in year 2016-2017 purchased a Vehicle Mounted Fogging

Machines for Rs.8,08,194/-. Bramhapuri Municipal Council has

purchased a Vehicle Mounted Model Swing Fog in year 2015 for

Rs. 5,95,000/-.

With the assistance of the learned Advocates for the parties, we

therefore tried to find out the costs of Fogging Machines simplicitor.

The said chart shows that, Achalpur Municipal Council has purchased

Self Start Fogging Machines for Rs. 49,900/- in 2014-2015, Anjangaon

Surji Municipal Council has purchased the same type of machine for

Rs.4,85,000/- in year 2015, Chandur Railway Municipal Council has

purchased the same machine in year 2012 for Rs.4,85,000/-,

Chikhaldara Municipal Council has in year 2013 purchased Swing Fog

Fogging Machines made in German with identical specifications as that

of Warud Municipal Council for Rs. 7,04,095/-. Those purchases are in

year 2013. There are few other instances also wherein 2013-2014

Nandura Municipal Council is shown to have purchased two Fogging

Machines for Rs. 82,400/-.

According to the respective Advocates who appear for private

parties and supplier, the price difference is on account of wattage of

the machine, its capacity and other technical specifications. The make

also, according to them, plays an important role.

We find that an audit objection was raised in terms of the

provisions of the Bombay Local Funds Audit Act, 1930 and compliance

submitted thereof seems to have been accepted. However, the material

produced before this Court does not show any uniform policy in this

respect laying down the standard specifications or type or make of

machine to be purchased by such local bodies.

During hearing the learned Advocate for the petitioner has

produced a communication dated 17-03-2017 sent by the Assistant

Director of Local Audit, Amravati to the Chief Officer of Municipal

Council, Warud. It is marked as Exhibit-''X'' only for identification.

The respective Advocates appearing for the respondents and

learned Additional Public Prosecutor have opposed the production of

document at this stage. They also sought an opportunity to go through

it and to rebut its contention as the document has been produced for

the first time without any affidavit during arguments. Again as already

recorded supra, we are not reaching to any conclusion in the present

order. Prima facie perusal of this communication shows that, the said

Authority has found further verification of facts in relation to the

purchase of Fogging Machine by Warud Municipal Council necessary.

Apart from this, it has also pointed out that, an Auto Rickshaw

allegedly purchased in 2009-2010 by that Municipal Council has been

registered with RTO for the first time in 2015. While registering, year of

manufacture has been shown to be 2011. The Authority has found it

necessary to verify the facts in relation to five vehicles mentioned in this

communication (Exhibit-''X'').

We reiterate that looking to the need of verification of facts, we

are not recorded any finding on any of the rival contentions. Reference

to facts is only to point out the need for verification of facts by the

Authorities.

The petitioner has prayed for investigation through respondent

no.14 (Superintendent of Police Anti Corruption Bureau, Amravati) into

the entire affairs.

Learned Advocate Shri Khajanchi has pointed out that the office

of respondent no.14 was never approached earlier and prayer clauses

in this petition therefore not correct. However, taking into overall view of

the matter, as we find verification of facts necessary, we direct that

Authority to undertake the exercise of verification on the basis of the

orders passed by this Court earlier and to complete the enquiry within

next three months. Further appropriate steps shall be taken by that

Authority as per the outcome of the report.

As we find from the chart produced along with reply affidavit

mentioned supra that, there is no uniform policy about the purchase of

Fogging Machines in the State of Maharashtra and therefore the

Fogging Machines have been purchased by the various Municipal

Councils at varied rates, we direct the respondent nos. 1 and 2 to

immediately proceed to lay down the standards in this respect. The

Municipal Councils shall be informed accordingly and till then no

purchase of Fogging Machines shall be allowed except without previous

permission of Respondent No.2.

With this direction, we partly allow the Writ Petition and dispose

of it. No costs.