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The Municipal Council, Malkapur and anr. Vs. the State of Maharashtra and anr. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. Nos. 610 of 1972 and 1691 of 1973
Judge
Reported inAIR1977Bom244
ActsMaharashtra Municipalities Act, 1965 - Sections 3(1) 7, 8, 40, 40(1), 40(2), 40(3), 42, 49, 51, 58, 72, 77, 81, 81(1), 91, 103, 190, 238, 238(1), 306, 311, 312, 313, 313(1), 314, 315, 315(1), 315(2), 315(3) and 337; Constitution of India - Articles 166, 166(2), 226 and 227; Maharashtra Government Rules - Rule 14; Maharashtra Municipal Councils and Municipal Corporations (Postponement of Elections During the Emergency) Act, 1975; Maharashtra Municipal Council (Postponement of Elections due to Scarcity Conditions in the State) Act, 1972; Madhya Pradesh Municipal Corporation Act - Sections 422; Maharashtra Municipal Councils and Municipal Corporations (Postponement of Elections During the Emergency)(Amendment) Act, 1976;
AppellantThe Municipal Council, Malkapur and anr.
RespondentThe State of Maharashtra and anr.
Appellant AdvocateC.G. Madkholkar, Adv.
Respondent AdvocateV.P. Salve, Asstt. Government Pleader
Excerpt:
a) the case dealt with the appointment of administrator giving due regard to the principles of natural justice - the principle of natural justice requires that an administrator can be appointed only by an order which is published in the official gazette - it further requires that a reasonable opportunity should be given to the council to explain the charges and to put forward its case, before an action is taken against it under section 313 of the maharashtra municipalities act, 1965.;b) it is ruled that under rule 14 of the maharashtra government rules of business, the secretary of the concerned department is required to carefully observe the ruled given therein - further, if the secretary finds that ruled have not been given due attention, then he can personally bring the matter to the.....dharmadhikari, j.1. general elections for electing the councillors to the municipal council, malkapur were held in june 1967. thereafter, the first meeting of the municipal council for electing the president was held in july 1967 and it appears that one shri j. n. jadhao, who is respondent no. 4 before us, was elected as the president of the municipal council. the term of the elected councillors in the normal course would have expired in july 1972. but it appears that it was extended from time to time. initially as there was an acute scarcity in the majority of the districts of maharashtra in the year 1972, the state government decided to extend the term of the municipal council upto 31st of december 1'972. then came the maharashtra municipal council postponement of elections- due to.....
Judgment:

Dharmadhikari, J.

1. General elections for electing the Councillors to the Municipal Council, Malkapur were held in June 1967. Thereafter, the first meeting of the Municipal Council for electing the President was held in July 1967 and it appears that one Shri J. N. Jadhao, who is respondent No. 4 before us, was elected as the President of the Municipal Council. The term of the elected Councillors in the normal course would have expired in July 1972. But it appears that it was extended from time to time. Initially as there was an acute scarcity in the majority of the districts of Maharashtra in the year 1972, the State Government decided to extend the term of the Municipal Council upto 31st of December 1'972. Then came the Maharashtra Municipal Council Postponement of Elections- due to Scarcity Conditions in the State) Act, 1072. By virtue of this enactment the elections were postponed. It appears from the record that in the meantime on 22nd May 1972 Shri Vallabhdas Jagannath Purohit was elected as the President of the Municipal Council. It is the case of the petitioners that after this election of Shri Purohit as a President, the opposite group in the Municipal Council started making false complaints against him and the Municipal Council as a result of which initially a notice under Section 42 of the Maharashtra Municipalities Act, 1965 (hereinafter referred to as 'the Act') was issued to Shri Purohit who was then the President of the Municipal Council, asking him to show cause as to why he should not be removed from the Municipal Council itself. An explanation to this show-cause notice was given by him. He had also raised an objection that an action proposed to be taken under Section 42 was wholly uncalled for. Thereafter, according to the petitioners, the Director of Municipal Administration ordered an inquiry against the President Shri Purohit under Section 311 of the Act. Shri Purohit and the Municipal Council challenged the said order before this Court by filing awrit petition being Special Civil Appln. No. 610 of 1972 and it appears from the record that the said writ petition was duly admitted by this Court and an interim stay of further enquiry was also granted. From the record of the Special Civil Application No. 610 of 1972 it also appears that the State Government then filed an application for vacation of stay. After hearing the parties this Court modified the stay order in the following term on 15th of January 1973:

'The interim stay granted on 4-5-1972 is modified in that the enquiry will proceed and the enquiry report will also be submitted but further action on the report be stayed.'

2. In spite of this order it appears that instead of proceeding further with the enquiry the State Government cancelled the whole proceeding by order dated 22nd of March 1973 and instead passed an order issuing a show-cause notice dated 19-4-1973. By this order the Municipal Council was directed to show cause within 20 days from the date of its receipt as to why action under Section 313 of the Act should not be taken by the Government. The grounds on which the said action was proposed to be taken read as under:

'It has been reported to Government that Malkapur Municipal Council in Buldana District,

(1) is not competent to perform duties imposed upon it by or under the Maharashtra Municipalities Act, 1965, or any other law for the time being in force, as mentioned in Annexure I.

(2) persistently makes default in the performance of such duties or in complying with the lawful directions and orders issued by the authorities empowered under the law to issue such directions or orders to the Council as mentioned in Annexure II.

(3) has exceeded and abused the powers as mentioned in Annexure III and that

(4) the financial position and the credit of the Municipal Council is seriously threatened as mentioned in Annexure IV.'

To this show-cause notice in all four schedules were attached, giving various instances. We will refer to these schedules and instances enumerated therein in detail in due course. However, from these schedules it appears that in all 22 charges were levelled against the Municipal Council, After receipt of this show-cause notice a detailed explanation was submitted by the Municipal Council with necessary annexures incorporating the information relevant for deciding the controversy involved in the said show-cause notice. It seems that the matter was also heard by the Minister for State on various dates. Ultimately by an order dated 1st of December 1973, which is Incorporated in Annexure 'F' to the petition, the Government of Maharashtra directed the appointment of one Shri V. W. Deshmukh, Tahsildar, Malkapur as an Administrator of the Municipal Council in addition to his own duties for a period till new body after general elections takes over. The said final order reads as under:

'MAHARASHTRA GOVERNMENT

GAZETTE, Extraordinary

Saturday, December 1st, 1973/Agrahayan 10, Saka 1896. Part I-A-Nagpur Division Supplement. Urban Development, Public Health & Housing Department, Sachiva-laya, Bombay-32 BR, dated 1st Dec. 1973,

ORDER

No. MUV-1372/24940/N. whereas it has been reported to Government that the Malkapur Municipal Council in Buldhana district hereinafter referred to as 'the said Municipal Council' constituted under the Maharashtra Municipalities Act, 1965 (Maharashtra Act No. XL of 1965) (hereinafter referred to as 'the said Act.')

(a) is not competent to perform duties imposed upon it by or under the said Act or any other law for the time being in force as mentioned in Annexure I.

(b) persistently makes default in the performance of such duties, or in complying with the lawful direction and orders issued by the Collector, the Director, the State Government or any other authority empowered under law to issue such directions or orders to the Council as mentioned in Annexure II.

(c) has exceeded and abused the power as mentioned in Annexure III.

(d) The financial position and the credit of the Municipal Council is seriously threatened as mentioned in Annexure IV. And whereas, the allegations aforesaid on verification have been found to be true and severally and jointly appear serious enough to warrant action against the said Municipal Council, under Section 313 of the said Act. Now, therefore, in exercise of the powers vested in it under Section 313 (1) of the said Act and of all other power enabling it in this behalfthe Government of Maharashtra for the reasons specified aforesaid is hereby pleased to appoint Shri V. W. Deshmukh, Tahsildar, Malkapur, as the administrator of the Malkapur Municipal Council in addition to his own duties for a period till a new body after general elections takes over with immediate effect,

ANNEXURE I.

The instances showing that the Council is incompetent to perform duties imposed upon it by or under the Maharashtra Municipalities Act or any other law for the time being in force:--

(1) Ordinary meetings are not held according to the provisions of Section 81 of the Maharashtra Municipalities Act.

(2) Quarterly accounts are not prepared and note to that effect is not published according to provisions of Section 103 of the Maharashtra Municipalities Act.

(3) The Salary Reserve Fund is not constituted as provided by Section 91. Further the amount withdrawn from the said fund has not been recouped.

(4) The Council failed to pay loan instalment and interest thereon payable to L.I.C. which were due on 29th March, 1972. The Collector Buldhana had, therefore to recover the same by making necessary adjustment while releasing D. A. grant in June, 1972.

(5) Abnormal deduction is made in the assessment list without recording reasons. Some properties have not been assessed for years together.

(6) Education Cess recovered is not credited into Government Treasury in time.

(7) Building permissions are not given within the prescribed time and the permissions were not made available for inspections.

(8) 60 Audit paras are still outstanding, oldest being for the year 1957-58.

ANNEXURE II.

The instances of making persistent default in performance of duties or in complying with the lawful directions and orders issued by the Collector, the Director and the State Government:--

(1) Arrears of Badkas Commission pay scales to the tune of Rs. 4,00,000 have not been paid.

(2) Auction sale of beef market stalls were not held in spite of instructions from the Collector and the Director of Municipal Administration, Bombay.

(3) Arrears of Property Tax of Rupees 3,234 and other were outstanding against the father of the president Shri V. J.Purohit. The said taxes have been paid by him on 3rd November, 1972.

ANNEXURE III.

The instances in which the Municipal Council has exceeded and abused its powers:--

(1) The percentage of expenditure over all Municipal staff is 77 per cent. There is surplus staff, particularly in Octroi Department.

(2) There are 12 posts created without obtaining prior sanction from the competent authority. The posts of court clerk and the number taker in dispensary are continued, even though the Director of Municipal Administrations has rejected the proposals.

(3) Illegal termination of service of Sarvashri Paranjape, Typist and Satpute Naka Mohrir.

ANNEXURE IV.

The instances showing that the financial position and the credit of the Council is seriously threatened:--

(1) The Liabilities (Rs. 12,17,946-54) exceeded the assets (Rs. 8,86,103) on 5th November. 1973.

(2) The percentage of recovery of consolidated property tax, namely, 51 per cent is not satisfactory. There are heavy arrears amounting to Rs. 1,42,190 on 31st December, 1972 as against normal yearly demand of Rs. 1,32.000. The arrears of all taxes as on 31st December, 1972 were Rs. 4,14,000 as against the demand of Rs. 6,93,542. This has been reduced to Rs. 3,13,936 on 27th March, 1973.

(3) The special sanitary service and the water supply scheme are not self-supporting.

(4) The income from Octroi has shown a reduction from Rs. 6,86,000 to Rupees 3,86,560 within a period of two years ending March, 1972. The percentage of expenditure on Octroi staff is high, namely, 44 per cent as against the prescribed percentage of 20.

By order and in the name of

the Governor of Maharashtra,

Sd/- A. R. Shaikh,

Deputy Secretary to Government.'

A dispute is raised in the petition that in fact such an order was not passed by the State Government on 1-12-1973 nor was it published in the Maharashtra Government Gazette on the same day. In this behalf specific allegations have been made by the petitioner in paragraphs 27, 28, 29, 30 and 31-A of the petition. According to the petitioner, the order passed by the State of Maharashtra under Section 313 of the Act is wholly illegal as itis in contravention of the well established principles of natural justice. It is further contended on behalf of the petitioners that there was no material before the State Government on the basis of which an opinion could have been formed by the State Government that the Municipal Council was not competent to perform the duties or has persistently made defaults in performance of the duties or either had exceeded or abused its power or its financial position and the credit was seriously threatened. It is also contended by the petitioners that an Administrator could be appointed by the State Government only by publishing an order in official gazette. In the present case, the publication in the gazette is not only tainted but is also a manipulated one and, therefore, there is no publication of the order in official gazette as contemplated by Section 313 of the Act. A contention is also raised in the petition that these proceedings have been instituted against the Municipal Council in colourable exercise of the power and respondent No. 2, Deputy Secretary to the Government of Maharashtra, Shri A. R. Shaikh, had taken a special interest in the whole affair and had gone out of his way in preparing the order and serving it on the Municipal Council. According to the respondent State itself, Shri Shaikh has acted as per the directions of the State Government. Therefore, according to the petitioners, the conduct of the State in this behalf is not above-board. In support of this contention the learned counsel for the petitioners has relied upon the additional return filed on behalf of the respondent-State and particularly on paragraph 5 thereof. According to the learned counsel for the petitioners, if Shri Shaikh had acted as per directions of the Government, then obviously the exercise of power by the State which is reflected in the order and the official gazette is nothing but a fraud on the statute. It is further contended on behalf of the petitioners that some of the grounds on which the order of appointment of an Administrator is based are irrelevant and non-existent. Some more grounds were added at the time of passing the final order regarding which the Municipal Council was not given any opportunity of being heard or to put forward its case. So far as the other grounds referred to in the supersession order are concerned, they are also non-existent and are irrelevant to the inquiry under Section 313 of the Act. The learned counsel for thepetitioners, Shri Madkholkar, further contended before us that the order passed by the State Government superseding the Municipal Council and appointing the Administrator is based on the cumulative effect of totality of the grounds stated in the order as published in the official gazette and as some of them were vague, non-existent or newly added, regarding which the Municipal Council had no opportunity to show cause or put forward its case, the whole order is vitiated as it is not possible to speculate as to which of the grounds or reasons stated therein had weighed with the State Government while forming its opinion, which has resulted in the appointment of the Administrator. He further contended that all the grounds in show cause notice were duly explained by the Municipal Council but said explanation was not considered at all by the State Government.

In reply to the various contentions raised in the petition in the return it is con-tended on behalf of the respondents that after giving an opportunity to show cause and after giving personal hearing to the petitioner Council the State Government had come to the conclusion that it is necessary to appoint the Administrator under Section 313 (1) read with Sub-clauses (a), (b), (c) and (e) of the Act. So far as the grounds which were newly added in the final order and were not the subject-matter of the show-cause notice are concerned, in the return it was contended on behalf of the State that the provisions of Section 313 of the Act do not contemplate that a show-cause notice must be given before taking action under that section. According to the respondents, it is the discretion of the Government either to give a show-cause notice or not to give it. An additional return on behalf of respondent No. 1 was also filed duly supported by a solemn affirmation. The said additional return, which is dated 13th of August 1975, was solemnly affirmed by Shri A. R. Shaikh, Deputy Secretary to the Government of Maharashtra, Urban Development Department. In this additional return the respondents have denied the allegations made in paragraphs 28, 29, 30 and 31-A of the petition so far as respondent No. 2, A. R. Shaikh, was concerned. Thereafter on 17th of July 1976. an additional affidavit was also filed on behalf of the respondents duly sworn in by the officiating administrator of the Municipal Council. By this affidavit it was contended on behalf ofthe respondents that initially the Administrator was appointed on 13-12-1973 and thereafter by virtue of Ordinance No. 14 of 1973 promulgated on 16th October 1973 general elections to the Municipal Council were postponed upto 31st of March 1974 or such other earlier date to be notified by the State Government. The term of the existing Administrator was thereafter extended from time to time, initially up to 31st of March 1974 and thereafter also. According to the respondents, under Sub-section (1) of Section 315 of the Act, quarterly report was submitted by the Administrator to the Director of Municipal Administration, Bombay and in view of this report, under Sub-section (2) of Section 315 of the Act the term of the Administrator was continued up to 31st of March 1976. In the meantime came the Ordinance postponing the general elections during the Emergency. This ordinance was later converted into an Act known as the Maharashtra Municipal Councils and Municipal Corporations (Postponement of Elections During the Emergency) Act, 1976 and this Act is to remain in force during the period of Emergency and 6 months thereafter if no earlier date is notified by the Government. Therefore, according to the respondents, in view of the provisions of Section 3 (1) (c) of this Postponement Act, the term of the Administrator stands extended during the aforesaid period. A contention was also raised on behalf of the respondents before us that in view of these subsequent enactments the petition does not survive and is liable to be dismissed with costs. Therefore, in substance it is the contention of the respondents that the formation of the opinion by the State Government under Section 313 of the Act is based on the subjective satisfaction of the State Government and, therefore, it cannot be objectively tested.

It is also their contention that in fact it is neither necessary nor is it obligatory on the part of the State Government to give any show-cause notice to the Municipal Council before an action under Section 313 is taken. According to Shri Salve, learned Assistant Government pleader appearing on behalf of the respondents 1 to 3, in view of the fact that normally in such matters principles of natural justice should be followed, the State Government had given a show-cause notice by way of abundant caution to the Municipal Council. Their reply to the said show-cause notice was duly considered. Even a personal hearing wasgiven to the Municipal Council through their counsel and after considering the explanation given by the Municipal Council and taking into consideration the material placed on record the State Government came to the conclusion that it was necessary to appoint the Administrator under Section 313 (1) of the Act. Thus in substance it is contended by Shri Salve that the order passed by the Government appointing the Administrator is perfectly legal and valid and is not liable to be interfered with in the extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India.

3. For properly understanding the controversy raised before us, it will be necessary to refer to certain important provisions of the Act. Chap. II of the Maharashtra Municipalities Act deals with the Municipal Councils, their area and classification. It further deals with composition of Municipal Councils and elections of the councillors. Section 40, then lays down that the Councillors elected at the general election shall hold office for a term of five years which may be extended by the State Government. Then it deals with the elections of the office-bearers including the President and the Vice-President. Chapter III of the Act deals with the duties and functions of the Municipal Council and Municipal Executive including the obligatory duties and discretionary functions of the Municipal Council. Chapter VII then deals with Municipal Property, Funds, Contracts and Liabilities etc. Chapter XXIII, in which Section 313 appears, then deals with Control over the Municipal Council constitution under the Act. Section 306 of the Act empowers the Director or the Collector or any officer of the Government authorised by the State Government in that behalf to inspect and supervise the affairs of the Municipal Council. Director or Collector has power to call for a return or reports. Power is also conferred upon the Collector to suspend execution of the orders and resolutions of the Council on certain grounds. Extraordinary powers also are given to the Collector in the matter of execution of certain works in case of emergency. The Director is also empowered to prevent extravagance in the employment of establishment. Under Section 311 of the Act, the State Government has a power to order an inquiry to be held by any officer appointed by it in this behalf into any matters concerning the municipal administration of anyCouncil or the matters connected therewith. Under Section 312 of the Act, power has been conferred upon the Director to issue directions in the matter to enforce performance of the duties, and then comes Section 313 of the Act, with which we are concerned in the present writ petition. Section 313 reads as under:-- -

'313. (1) if, in the opinion of the State Government-

(a) a Council is not competent to perform duties imposed upon it by or under this Act or any other law for the time being in force, or

(b) persistently makes default in the performance of such duties, or in complying with the lawful directions and orders issued by the Collector, the Director, the State Government or any other authority empowered under law to issue such directions or orders to a Council, or

(c) exceeds or abuses its powers, or

(d) a situation has arisen in which the administration of the Council cannot be carried out in accordance with the provisions of this Act, or

(e) the financial position and the credit of the Council is seriously threatened, the State Government may, by an order published in the Official Gazette, appoint a Government Officer as the Administrator of the Council for a period not exceeding three years. The order shall state the reasons for making the order.

(2) If the term of office of an Administrator so appointed is less than three years, the State Government may extend it from time to time, subject to the limitation of the total period of three years.' Then Section 314 of the Act deals with the powers of Administrator, It also deals with the consequences of appointment of an Administrator under Section 313 of the Act. As soon as the Administrator is appointed, all the powers and functions, vesting in or exercisable by the Council, the President, the Vice-President, the various committees, the Councillors and the Chief Officer under the Act or any other law for the time being in force vest in and are exercisable by the Administrator, to the exclusion of their exercise and performance by the authorities referred to above. Under Section 315 of the Act review of the Administrative work is contemplated. Under Sub-section (3) of Section 315, if, in the opinion of the State Government, even after the period of three years of administration by the Administrator the grounds on which the Administrator was appointed still exist, the State Government may by an order published in the Official Gazette dissolve the Council. If such a Council is dissolved, then the subsequent provisions prescribe the procedure for re-establishment of the Council, after such a dissolution. From the bare reading of these relevant provisions of the Act it is quite obvious that once the power is exercised by the State Government under Section 313 of the Act, practically the local government elected by the electorate ceases to function. Though under Section 40 of the Act the Councillors have a right to continue in office for a term of five years, they cease to function as such as soon as Administrator is appointed under Section 313 of the Act. To some extent if an order is passed under Section 313 (1) of the Act, it results in casting a stigma upon the Municipal Council and the elected Councillors.

This whole thing is popularly known as supersession of Municipal Council. Therefore, the nature of the inquiry and the procedure which the State Government should follow before passing an order under Section 313 (1) of the Act will have to be viewed and understood having regard to serious consequences. It is no doubt true that in terms Section 313 does not lay down that before an action is taken against the Municipal Council under Section 313 of the Act, a show-cause notice should be issued. But Section 313 contemplates formation of an opinion by the State Government regarding the grounds and the matters enumerated in Clauses (a) to (e). Then obligation is cast upon the State Government to pass an order in that behalf which should be published in the Official Gazette. It further enjoins a duty upon the State Government to state the reasons for making the order. Therefore obviously Section 313 contemplates passing of a speaking order by the State Government. From the bare reading of these provisions it is further clear that an opinion cannot be formed by the State Government unless there is material before it. Reasons for making an order cannot be recorded in the order itself unless those reasons exist. Further the section contemplates publication of the order in the Official Gazette. Unless these formalities are followed, the order passed under Section 313 of the Act cannot be said to be a valid and legal order nor it can come into operation. Administrator can be appointed only by an order which is published in the Official Gazette. Thisin itself is one of the ingredients of the principles of natural justice. The Supreme Court had an occasion to consider this aspect of the matter in Harla v. The State of Rajasthan : [1952]1SCR110 , in the said case the Supreme Court observed as under:--

'We are of opinion that it would be against the principles of natural justice to permit the subjects of a State to be punished or penalised toy laws of which they had no knowledge and of which they could not even with the exercise of reasonable diligence have acquired any knowledge. Natural justice requires that before a law can become operative it must be promulgated or published. It must be broadcast in some recognisable way so that all men may know what it is; or, at the very least, there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence. The thought that a decision reached in the secret recesses of a chamber to which the public have no access and to which even their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property by the mere passing of a resolution without anything more is abhorrent to civilised man. It shocks his conscience. In the absence therefore of any law, rule, regulation or custom, we hold that a law cannot come into being in this way. Promulgation or publication of some reasonable sort is essential.'

It appears that the publication of an order or law in the Official Gazette is treated to be sufficient notice to everybody. The publication of the order in Official Gazette passed under Section 313 (1) of the Act is not only meant for the Municipal Council or its Councillors alone but the citizens as well as the electorate are also entitled to know the reasons for which they are deprived of their elected local self-government. This aspect of the matter came for consideration before the Division Bench of the Allahabad High Court in State of Uttar Pradesh v. K. C. Gupta '1974 All LJ 58. That was also a case of supersession of a Municipal Council. In this context the Division Bench made a reference to the earlier decision of a Single Judge in I.P. Kapoor v. State of U. P. 1967 All LJ 1043 and particularly to the following observations therein:

'It is apparent that the requirement that reasons for the order shall be published in the Official Gazette is to provide a safeguard against arbitrary action on the one hand and to convince the citizen and the members of the Board, of the ground on which the State Government reached the requisite satisfaction to deprive them of their right to local self-government. The purpose of the requirement that reasons shall be stated is to ensure that the reasons which have impelled the action are germane and relevant to the content and scope of the power vested in the State Government.'

The provision for stating the reasons for making the order has been made for obvious reasons. The giving of reasons in support of their conclusions is essential for various purposes. First, it is calculated to prevent unconscious unfairness or arbitrariness in reaching the conclusions. The very search for reasons will put the authority on the alert and minimise the chances of unconscious infiltration of personal bias or unfairness in the conclusion. The authority will adduce reasons which will be regarded as fair and legitimate by a reasonable man and will discard irrelevant or extraneous considerations. Second, it is a well-known principle that justice should not only be done but should also appear to be done. Unreasoned conclusions may be just but they may not appear to be just to those who read them. Reasoned conclusions, on the other hand, will have also the appearance of justice. Third, it should be remembered that sometimes these orders of the Government arc challenged before this Court under Articles 226 and 227 of the Constitution of India and in case no reasons are given, the Court will have to wade through the entire record and find for itself whether the decision is right or wrong. In many cases this investment of time and industry will be saved if reasons are given in support of the conclusion (see Woolcombers of India Ltd. v. Woolcombers Workers' Union, : (1974)ILLJ138SC ),

4. In this context reference could usefully be made to a decision of the Punjab High Court in the Municipal Committee Kharar, District Ambala v. The State of Punjab . While dealing with the aspect of the matter Narula J. in paragraph 41 observed as under:

'In the instant case the State Government, which is entrusted with vast power and extensive authority to supersede amunicipality has done so without fulfilling the statutory requirement of recording in the notification its reasons for taking that action, a course prescribed by the Legislature so to allay any misgiving that may arise in the mind of the public and to inspire confidence in the Government. The determination of - the facts constituting the conditions precedent for taking drastic and serious action under Section 238 (1) of the Act have not been left by the legislature to the subjective satisfaction of the Government but have to be decided on an objective basis. The supersession of a municipality on any of the grounds contained in Section 238 (I) of the Act carries with it a stigma on the municipal committee and consequently on at least some of its members. That is why the statute requires the Government to arrive at a finding justifying such action on objective facts and to incorporate its reasons not only in its order on the Government file but in the notification itself, which notification has to meet the public gaze. It would be against the fundamental principles of natural justice that an authority should arrive at such a serious finding of far-reaching consequence without giving any opportunity at all to the Municipality to explain the allegations made against it.'

Dua J., as he then was, while dealing with this aspect of the matter, observed as under:--

'The reasons required as a condition precedent by Section 238 to be stated in a valid notification superseding a Committee, in my view, are those necessary facts which may have weighed with the State Government in arriving at the conclusion that the Committee is incompetent to perform and has persistently made defaults in the performance of statutory duties-. The notification in order to be valid must accordingly set out all the necessary facts precisely so that all those who read the notification may be able to know what those facts are on which the above conclusion has been founded. The object and purpose of this requirement appears to me to be traceable to a desire on the part of the Legislature to guarantee that the State Government does not act arbitrarily and does not abuse or misuse the drastic power conferred on it by the Statute. This desire has apparently roots in the conscious realisation that the exercise of power, if it is to be something better than infliction of wanton injustice, must behedged round by safeguards of law andentrusted to those who are closely supervised by the eye of the public in the interest of those subjected to it. The party against whom this power is exercised has according to be fundamental concept of the traditional democratic principles of justice a right to know that action has been taken to its prejudice in accordance with the law of the land and this has, in my view, been assured by the mandatory provisions requiring the reasons for the action to be stated in the notification as an essential pre-requisite for its validity.

For my part, I consider this right to be basic in a set-up like ours where a citizen has been assured equal justice according to law and where the courts are not ordinarily deprived of their jurisdiction to adjudicate on citizens' rights even against the State. In any event, the right to know the reasons indisputably tends to promote in the minds of the citizens a feeling of democratic satisfaction with the legal character of our State: a satisfaction on which alone can be founded a stable and healthy democratic set-up. If I may so put it, it is because of this law that a citizen primarily feels content with a truly democratic State and it is this contentment alone which basically sustains such a State. The impugned notification is accordingly invalid as it does not contain reasons for the supersession.

It is true that the statute does not in terms provide that the State Government has to perform a duty of a judicial character while dealing with the question of supersession, but that alone cannot be conclusive, because the judicial character of a duty may be inferred from the nature of the statutory duty itself, examined in the light of the character of the right affected and the consequences that flow from the exercise of such duty. Where power is conferred on an authority to determine questions prejudicially affecting rights of citizens, in view of what I have said above, a duty may, justifiably be implied that such powers would be exercised in conformity with the principles of natural justice applicable to a judicial approach. These limits seem to inhere in the very nature of the power. The omission of the Legislature to insert positive words imposing an obligation of a judicial approach appears to be supplied by the plainest principles of justice on which our Constitution isfounded. The duty imposed on the State Government, when exercising the power conferred by Section 238, requires the determination of the question whether the Committee concerned is incompetent to perform or persistently makes default in the performance of the duties imposed on it. This duty necessarily involves consideration of factual material and formation of opinion on its evalution leading to the final conclusion. This seems to me to require an objective approach closely resembling that of a judicial mind adjudicating upon a controversy, and is not a mere matter of administrative or executive policy, expediency or discretion. And if I am right in taking this view then this duty may well be considered to partake of a quasi-judicial character attracting the observance of the rules of natural justice.

The order of supersession, it may be remembered, very seriously affects the members of the Committee concerned and incidentally also the electorates who have duly elected the municipal Councillor I am not unmindful of the fact that the Punjab Municipal Act was enacted apparently in pursuance of the policy of developing local self governing institutions as a part of the larger policy of establishing in this country democratic Government by elected representatives and training the people in the art of local self-Government. An effective and close supervision and control over the working of local (bodies like the Municipal Committee was thus considered necessary to a considerable extent. But this aspect induces me further to hold that the power conferred by Section 238 which entails drastic consequences of superseding a self-governing elected body calls, in its exercise, proper observance of the rules of natural justice so that the other side of the picture is adequately presented before the State Government by the party affected. This seems to me to be essential if local self-Government is to develop on healthy lines and our democratic set-up is to have strong and deep roots in the community at large.'

The law laid down in this decision was subsequently approved by the Full Bench of Delhi High Court in Suraj Prakash v. State of Punjab : AIR1968Delhi30 . Therefore, the scope of S, 313 of the Act will have to be understood in this context.

5. From the bare reading of the provisions of Section 313 of the Act it is quite obvious that formation of an opinion is condition precedent for taking an action under Section 313 of the Act. Before the power can be exercised under this section, there must exist the circumstances on the basis of which an opinion could toe reasonably formed or from which an inference could be reasonably drawn regarding the factors enumerated in Clauses (a) to (e) of Sub-section (1) of Section 313 of the Act The power to appoint Administrator is conferred on the State Government and that too in certain circumstances only. It is not an unbridled or arbitrary power. Further the order appointing an Administrator is to be passed on certain grounds or reasons and those should be specifically stated in the order. The order must be made public by publishing in the Official Gazette, The recording of the reasons ensure that opinion is formed according to law and is not a result of caprice and whim or fancy and is not reached on the grounds of policy or expediency. Further the Municipal Council, Councillors and the citizens are entitled to know the reasons or grounds for taking action. Therefore, having regard to the scheme of Section 313 and the consequences of the action which are drastic, in our opinion, even if there is no express provision in Section 313 of the Act that an opportunity should be given to the Municipal Council to show cause against the proposed action, the principles of natural justice require that a reasonable opportunity should be given to the council to explain the charges and to put forward its case 'before an action is taken against it under Section 313 of the Act. It is not necessary for us to go into the question as to whether the power given under Section 313 is a quasi-judicial power or an administrative power. As observed by the Supreme Court in A. K. Kraipak v. Union of India : [1970]1SCR457 , the dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated. It is further laid down therein that the principles of natural justice and fair play apply to the exercise of administrative power also. It is equally well settled that these principles are not embodied rules nor they can be imprisoned within a strait-jacket or rigid formula. As to whether in a given case these principles of natural justice are followed or not must obviously depend on the facts and circumstances of each case. To us it appears that this position is by now well settled. A reference in this behalf could usefully be made tothe following decisions: Municipal Committee, Kareli v. State of Madhya Pradesh : AIR1958MP323 (FB), Maursinha v. State of Madhya Pradesh : AIR1958MP397 , Suresh Seth v. The State : AIR1970MP154 , Municipal Committee Kharar v. The State of Punjab , Suraj Prakash v. State of Punjab AIR 1963 Del 30 (FB) and State of U. P. v. , Krishna Chandra Gupta 1974 All LJ 58. Further it is not now necessary for us to deal with this aspect of the matter any further as Shri Salve, learned Assistant Government Pleader, has conceded this position and, in our opinion, rightly. Even according to Shri Salve, as Section 313 of the Act confers a power upon the State Government to take action, which has drastic effect or consequences, the power which is conferred upon it, though prima facie appears to be an administrative one, is in substance a quasi-judicial. In our opinion, by now this position appears to be well settled. Though from the prima facie reading of the section it does appear that it contemplates an administrative action, in so far as the actual order of appointment of Administrator is concerned, it is quite obvious that the said order must be founded on a judicial appraisal of the facts and circumstances on the basis of which Government comes to the conclusion that a given Municipal Council is incompetent to perform or has persistently made defaults in performance of duties imposed on it by law etc. The section casts a duty on the State Government to act in accordance with the principles of natural justice while coming to an objective finding on the basis of relevant material placed before it. Therefore, in our opinion, in any case the action which could be taken by the State Government in pursuance of the power conferred under Section 313 of the Act is quasi-judicial in character, which requires observance of the rules of natural justice. Therefore, the action taken by the Government in the instant case superseding the petitioner Municipal Council will have to be tested in this background.

6. Initially a complaint is made by Shri Madkholkar before us that the order of supersession passed by the State Government is wholly illegal as it was not published in the Official Gazette as contemplated by Section 313 of the Act. In paragraphs 27 to 30 the petitioners have made specific allegations that the document, namely, the gazette produced be-fore the Court is a fabricated document and cannot be equated with an order passed by the State Government and published in the Official Gazette as contemplated by Section 313 of Act. In these paragraphs of the petition the petitioners had made a specific allegation that respondent No. 2 Shri A. R. Shaikh, who is Deputy Secretary of the Urban Development Department to the Government of Maharashtra, had acted high-handedly with gross illegality on his part. It is further stated in the petition that Shri Shaikh had made reservation on 29th of November 1973 itself for going to Malka-pur. This reservation was cancelled and on 30-11-1973 he made another First Class reservation from Bombay to Mal-kapur by 29 Down Bombay-Howrah Express. According to the petitioners, he travelled in a First Class coach and the petitioners have given the ticket number as well as the reservation ticket number also. He did not get down at Malkapur. on 1-12-1973 but extended his ticket up-to Shegaon. According to the petitioners, this 29 Down Bombay-Howrah Express reaches Malkapur at 7-30 a. m. and at Shegaon at 8-20 a, m. After getting down at Shegaon Shri Shaikh proceeded to Buldana and contacted the Collector. He secured a jeep of Zilla Parishad at about 11 a.m. Then he started with one Kharche, resident Deputy Collector at Buldana for Malkapur and then with the aid of the Sub-Divisional Officer he forcibly took charge of the office of the Municipal Council, Malkapur and handed it over to Shri Deshmukh Tahsildar, who was appointed as an Administrator. These facts are not disputed by the respondents. On the basis of these admitted facts a further contention is raised by the petitioners that a gazette notification purporting to be published on 1-12-73 was available to Shri Shaikh in the published form on 30th of November 1973 itself, even before he left Bombay on that date. Therefore, according to the petitioners, the gazette which is purported to be published on 1-12-1973 or the Government resolution which is purported to be signed on 1-12-1973 was already prepared and got printed on 30th November 1973 itself and was deliberately post-dated. The petitioners further contended that in this case an extraordinary method was followed for serving the order on the Municipal Council. The petitioners further contend in the petition that this undue enthusiasm was shown by Shri Shaikh as per directions of the Government for the obvious reasons. One of such reasons, according to the petitioners, is that this ingenuous method was followed toy respondent No. 2 in this behalf with the sole intention that the petitioners should not get any time to approach any higher authorities or even the Court of law for getting redress. Another reason is given by the petitioners in their reply to the show-cause notice itself. According to them, this order of supersession was politically motivated as Shri Jadhao, who was Vice-President of the District Congress Committee, was defeated in the Presidential election. Therefore, in substance it is the contention of the petitioners that the whole conduct of respondent No. 2 and the Government is mala fide or at least the order as well as the gazette notification was issued in a colourable exercise of power. When the matter was heard last time, i. e., on 2nd of September 1976 by this Bench, the Assistant Government Pleader took time to produce the whole record before us as it was noticed that the return filed was a cryptic one and did not deal with all the allegations made in the petition. The whole record of the case is now, made available to us. As a matter of fact, during the course of arguments Shri Salve, learned Assistant Government Pleader relied upon this record and files in support of his contentions. With the help of the learned Assistant Government Pleader we have gone through the whole record and file which is produced before us and to say the least, in our opinion, so far as the question of publication of the gazette is concerned, it discloses a very sorry state of affairs. Obviously our observations in this behalf are based on prima facie perusal of the record. It appears from the file produced before us that after the matter was heard by the Minister for State, a decision regarding the supersession of the Municipal Council was taken on 26th November 1973 itself. From the record produced before us and particularly from the letter dated 23rd November 1973 addressed to the Collector, Buldana and signed by Shri A. R. Shaikh, respondent No. 2, and a letter addressed, to the Manager of Government Central Press, Bombay, dated 29-11-1973 which is also signed by respondent No. 2 Shri Shaikh, it appears that the Government Central Press was directed to print copies of Extraordinary Gazette to be dated 15th December 1973 and supply in all 30copies of it to respondent No. 2 by 12noon on 30th November 1973 itself.

Therefore, it is quite obvious that even before the Government Resolution was prepared, signed and dated, the gazette notification was got printed on 30th November 1973 itself by putting up the date as 1st December 1973. In the file we find that there is a Government Resolution bearing No. MUV-1372/24940/N 6 dated 1st December 1973 and is signed by Shri A. R. Shaikh, respondent No. 2, the Deputy Secretary to the Government. From the endorsement on the file as well as the date put on the Government Resolution it is quite obvious that Government Resolution was issued on 1st of December 1973 and not earlier. That is the date we find even in the Extraordinary Gazette. If this is so, one fails to understand how the Government Resolution which is issued on 1st of December 1973 and was also to toe published on the 1st of December 1973 in the Extraordinary Gazette, could have been printed on 30th of November 1973. It is also difficult to understand how respondent No. 2 Shri A. R. Shaikh could have obtained the copies of this Extraordinary Gazette, which is dated 1st of December 1973, even before he left Bombay for Malkapur on 30th November. If, therefore, the endorsements on the file are read with the allegations made in the petition, prima facie it appears that there is much substance in the contention raised on behalf of the petitioners in this behalf. The record produced before us discloses various circumstances which raise a doubt about the whole affair and, therefore, calls for an inquiry. It is well settled that a condition is implied in all instruments which creates power, that power shall be used bona fide and for the purposes for which it is conferred. In the present petition a contention is raised by the petitioners that the order issued by the government as well as published in the Official Gazette is nothing but a fraud on the statute. The petitioners have adversely commented upon the whole conduct of respondent No. 2 Shri A. R. Shaikh. In the return itself a statement is made on behalf of the State that Shri Shaikh has acted according to the directions of the Government. However, it ia not necessary for us to probe into this question any further in this writ petition. However we want to draw the attention of respondent No. 1 towards the Maharashtra Government Rules of Business framed under Article 166 of the Constitution of India and particularly towards Rule 14of the said Rules. It is pertinent to note that the State of Maharashtra is joined as respondent No. 1 to this petition through the Secretary of Urban Development Department of the Government of Maharashtra. Rule 14 of the said Rules makes the Secretary of the department concerned responsible for the careful observance of the rules and when he considers that there has been any material departure from them, it is his duty to personally bring the matter to the notice of the Minister-in-charge and the Chief Secretary. Therefore, having regard to the material placed before us and the allegations made in the petition we find that there is material departure from the procedure normally followed in this behalf and, therefore, we hereby direct the Secretary of the department concerned to bring this matter to the notice of the Minister-in-charge as well as the Chief Secretary. Under Article 166 of the Constitution of India, the executive action of the Government of a State is required to be expressed in the name of the Governor. Orders and other instruments made and executed, in the name of the Governor or to be authenticated in such manner as may be specified in the business rules. Article 166(2) further lays down that the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor. Therefore, it is obvious that a sanctity and authenticity is attached to such an order or instrument which is issued in the name of the Governor. If the allegation made in the petition in this behalf are true which in our opinion, have much substance, then the very purpose of Article 166 will be frustrated. The very authenticity or sanctity to be attached to such documents will loose its force. This is likely to affect the confidence the public has in such instruments or orders. Therefore, in our opinion this is a fit case where this matter should be brought to the notice of the Head of the State, viz., the Governor also in whose name and order is issued and published in the Official Gazette. We, therefore, direct respondent No. 1 the State of Maharashtra, to place this matter also (before the Governor of Maharashtra.

7. So far as the contentions raised on the merits of the matter are concerned, they will have to be decided having regard to the provisions of Section 313 of the Act and the material and circumstancesplaced on record. As already observed, initially certain action was proposed to be taken against the President of the Municipal Council. Thereafter an inquiry was instituted under Section 311 of the Act. The institution of that inquiry was challenged before this court by the petitioners by filing a writ petition bearing Special Civil Application No. 610 of 1972. As already observed, this petition was admitted by this Court and initially an interim stay of inquiry was also granted. On an application being made by the State the said interim stay was modified and permission was granted to the State Government to proceed with the inquiry up to the stage of submission of report. However, further action on the basis of the report was stayed. In spite of this modification of the order, which was at the instance of the State Government, it appears that the State Government did not proceed with the inquiry but cancelled its earlier order of instituting the inquiry itself. The fact of cancellation of the inquiry was not brought to the notice of this Court. The said petition is still pending and is being disposed of today as it has become in-fructuous. According to the petitioners, when the respondent State found that even if inquiry is held and report is submitted as in view of the stay order granted by this Court further action cannot be taken the inquiry was dropped and then recourse was taken to the provisions of Section 313 of the Act in colourable exercise of the power. Under Section 313, an action to appoint an Administrator could be taken if in the opinion of the State Government,

(a) the Council is not competent to perform duties imposed upon it by or under this Act or any other law for the time being in force, or

(b) it persistently makes default in the performance of such duties, or in complying with the lawful directions and orders issued by the Collector, the Director, the State Govt. or any other authority empowered under law to issue such direction or orders to a Council, or

(c) exceeds or abuses its power, or

(d) a situation has arisen in which the administration of the Council cannot be carried out in accordance with the provisions of this Act, or

(e) the financial position and the credit of the Council is seriously threatened. In the case before us, show cause notice was founded on the ground connected with Clauses (a), (b), (c) and (e) of thissection. Section 7 of the Act indicates the Municipal Authorities charged with carrying out the provisions of the Act, namely,

(a) the Council;

(b) the President;

(c) the Standing Committee;

(d) the Subjects Committees, if any and

(e) the Chief Officer,

Then by Section 8, incorporation of the Council is provided which further lays down that it will have a perpetual succession. Therefore, obviously the Act creates specific municipal authorities which are charged with the execution of the provisions of the Act. As already observed, Chapter XXIII provides for the control over the administration and working of the Municipal Council, Section 313 deals with the competency or incompetency acts or omission of the Municipal Council as such. It, therefore, appears from the scheme of the Act that the acts, defaults, competency or incompetency, excess or abuses etc. which can be taken into consideration by the Government while taking action under Section 313 of the Act should be the defaults, excess etc. of the Council and not merely of the President or the Chief Executive Officer or the Standing Committee itself, who, for certain purposes, can exercise their powers within the frame work of this Act independently. In a given case it could be shown that though the action is that of an individual authority, namely, the President or the Standing Committee, etc., the Council as a whole is responsible for the said act or omission. Therefore, in the present case it will have to be seen as to whether there was a material before the Government on the basis of which reasonably an opinion could have been formed that council was either incompetent to perform its duties or has made persistent defaults in performance of its duties, or had exceeded or abused its power or the financial position and the credit of the Council was seriously threatened. The words used in Clauses (b) Sub-section (1) of the Section 313 are 'persistently makes default in the performance of such duties, or in complying with the lawful directions and orders issued by the authorities.' It does not deal with mere defaults, but the expression used is persistent defaults. Therefore, prima facie it implies the conduct of the Municipal Council to continue firmly some state of affair or course of action which they have adopted in spite of the warning, notice or protest, etc. In a given case a singular default which is of a serious nature might indicate persistent attitude of the Municipal Council. The very words contemplate the default which is persistent one end that too in the performance of duties or in complying with the lawful directions of the authorities.

The duty imposed upon the Municipal Council could be an expressed duty as imposed by the provisions of the Act or any other law for the time being in force or could be an implied one. Having regard to the position the Council occupies in the democratic set up and the obligations and duties imposed upon it by the Act or any other law for the time being in force, an obligation is cast upon them to do something which they should do as a public body or as a result of an obligation it owes to the citizens in general. So far as abuse or excess of power is concerned, abuse of power could be inferred from want of good faith or bona fides or if the action is arbitrary, fanciful or unreasonable. However, no general rule or principle can be laid down in this behalf and ordinarily it must depend on the facts and circumstance of each case. In the present case, so far as the competency of the Council is concerned, in the show cause notice the Sub-clauses (a) of Section 313 is reproduced. Then in Schedule 'I' the instances are given which, according to the State Government, show that the Council is incompetent to perform its duties imposed upon it by or under the Maharashtra Municipalities Act or any other law for the time being in force. The instances given are as under:

'(1) Ordinary meetings are not held according to the provisions of Section 81 of the Maharashtra Municipalities Act.

(2) Quarterly accounts are not prepared and note to that effect is not published according to provisions of Section 103 of the Maharashtra Municipalities Act.

(4) The Salary Reserve Fund is not constituted provided by Section 91. Further the amount withdrawn from the said fund has not been recouped.

(4) The Council failed to pay loan instalment and interest thereon payable to Life Insurance Corporation which were due on 29-3-72. The Collector, Buldana had, therefore, to recover the same by making necessary adjustment while releasing D. A. grant in June 1972.

(5) Abnormal deduction is made in the assessment list without recording reasons. Some properties have not been assessed for years together.

(6) Education cess recovered is not credited into Government Treasury in time.

(7) Building permissions are not given within the prescribed time and the permissions were not made available for inspection.

(8) The work of removing encroachments is neglected.

(9) Basic amenities such as public latrines, Urinals, dust-bins have not been adequately provided.

(10) The Council has carried out public works costing Rs. 1,56,293 but the stock account of building road materials are not maintained properly.

(11) Tenders at higher rate have been accepted after negotiations. Only certain contractors being called for negotiations therefor and not all who tendered

(12) No technical sanctions are obtained from competent authority in case of works costing Rs. 10,000 and above, as required by Section 72 of the Act.'

It is an admitted position that so far as the instances given in items Nos. 8 and 12 are concerned, they were not relied upon by the State Government while passing the final order. Therefore, these instances do not find place in the final order passed on 1-12-1973. So far as the failure of holding ordinary meetings Es concerned, the Municipal Council had given a detailed explanation. As to during what period ordinary meetings were not held is not enumerated in the show cause notice. But it appears from the material placed on record that in all seven ordinary meetings were held during the period from 11th June 1971 to 7th May 1973 and about 18 special meetings were taken during that period. Under Section 81 of the Act a duty is cast upon the Chairman to convene meetings. Sub-section (1) of Section 81 then lays down that there shall be held six ordinary meetings in each year for the disposal of general business, in every alternate month commencing from the month in which the first meeting of the Council under Section 51 is held, and such other ordinary meetings as the President may find necessary. The said provision lays down a duty upon the President to fix the dates for all ordinary meetings and to call such meetings. The whole period from the commencement of the month in which the first meeting of the Council was held underSection 51 of the Act upto the date of issuing of the show cause notice has not been taken into consideration by the State. Further it appears that in the special meetings the business of the Council was transacted. It is not the case of the State Government at any stage that because these general meetings were not held as per schedule, business of the Council has been prejudicially affected. An action initially was taken against the President and inquiry was also instituted in this behalf under Section 311 of the Act but the State Government has chosen not to proceed with it. Therefore, from the material placed on record it appears that there is technical breach in this behalf which has been explained by the Municipal Council. Unfortunately even from the final order, which is incorporated in the Government Resolution, we do not find any reference to the explanation given by the Council at all. We do not find any recital in the final order which could indicate that the explanation given by the Council to the show cause notices was considered by the State Government. The phraseology used in the final order only indicates that the facts stated in the show cause notice were only verified. We still assume for a moment that the President was not justified in not calling the meetings as per provisions of the Act and has committed a technical breach of Section 81 of the Act. But then what will justify an action under Section 313 of the Act Is the incompetency of the Municipal Council and not wrongful act of the President. It has not been alleged that the Municipal Council is a whole was a party to this alleged wrongful Act of the President. Therefore, in our opinion, the State was in error in relying upon this instance. So far as preparation and publication of quarterly accounts are concerned, it appears from the record that such accounts were prepared but were not published according to the provisions of Section 103 of the Act. Section 103 of the Act requires the Municipal Council to publish a statement in this behalf in the local newspapers. However, in the explanation given by the Municipal Council it was clarified that in the town of Malkapur there is no daily newspaper and there is only one weekly paper which has insignificant circulation. Therefore, the Council thought that by publishing this notice in the weekly newspaper no tangible result would be assumed and, therefore, a statement in that behalf was put on the notice-boardof the Municipal Council. It is an admitted position before us that in the Municipal town of Malkapur there are no daily newspapers. As per provisions of Section 58 of the Act it is the duty of the President to perform the executive functions and exercise supervision and control over the acts and proceeding of the officers etc. The duty to publish the matter in the local newspaper could be termed to be an executive function. It should have been done by the President or the Chief Officer. Here again we will assume for a moment that they were not justified in not publishing quarterly or annual accounts in the weekly newspaper. But as already observed, we are not concerned with the wrongful acts of the President or other servants of the Municipal Council. Here also it is not shown that the Municipal Council as a whole was a party to this wrongful act. So far as the Salary Reserve Fund is concerned, it appears that this is partly done by the Municipal Council and so far as question of recoupment is concerned, the Municipal Council had explained the whole position by stating that because of the obstacles created in releasing the grant in time it was not possible for them to recoup the funds within time, which was ultimately done by the Collector himself from the grants which are payable to the Municipal Council. Similar, is the position with payment of loan instalments. This amount was also recoverable by the Collector from the grants payable to the Municipal Council. So far as the allegation regarding the abnormal deduction made in the assessment list is concerned, it is obvious from the bare reading of this charge that it is too vague. It was pointed out by the Municipal Council in its explanation that the charge does not disclose the details of entries in the assessment list nor it discloses the property to which it relates. So far as the charge regarding credit of education cess in Government Treasury in time is concerned, in the charge it is not stated as to what was the time specified for payment of this Education Cess. Similar is the position with the charge No. 7 in Annexure I, which relates to building permission. This charge is also vague. A specific complaint in this behalf was made by the Municipal Council in its explanation and in spite of this, no further details or particulars were ever given by the State Government. From the copy of the Inspection note which was given to the Municipal Council also these details are not available, inthis behalf it is pertinent to note that granting of building permission is not the function of the Municipal Council as a whole. Under Section 190 of the Act, it is the power of the Chief Officer. In this case also it is neither alleged nor shown that the Municipal Council as a whole was a party to this inaction on the part of the Chief Officer. In this behalf reference could usefully be made to Section 77 of the Act which deals with the powers and duties of the Chief Officer. In these circumstances, it cannot be said that there was no substance in the grievance made and explanation given to the individual charges by the Municipal Council in its explanation, As already observed, charges Nos. 8 to 12 were already deleted and were not relied upon when the final order was passed. Instead, one more charge was added to this Annexure 'I' in the final order, which reads as under:

'60 Audit paras are still outstanding, oldest being for the year 1957-58.'

It is an admitted position that this charge was not the subject-matter of the show cause notice nor was it ever brought to the notice of the Municipal Council at any time. It is not necessary to deal with this additional charge in detail as a statement has been made before us by Shri Salve, learned Assistant Government Pleader, that he is not relying upon any of the newly added charges for supporting the order passed by the State Government. Schedule II deals with the instances of making persistent defaults in performance of the duties or in compliance with the lawful direction or orders issued by the Collector or the Director and of the State Government. Though this is, in our opinion, a verbatim reproduction of Clauses (b) of Sub-section (1) of Section 313 of the Act, no details have been given as to what were the direction or orders issued by the Collector, the Director or the State Government, which were not carried out by the Municipal Council. It is also not specified as to what was the duty of the Municipal Council to which the defaults relate. Charge No. 1 deals with payment of arrears of Badkas Commission pay-scales which is to the tune of four lakhs, in reply to this allegation it was clarified by the Municipal Council that Badkas Award was made applicable with retrospective effect from 1966 and by issuing a circular by the State Government It is no doubt true that an option in this behalf was given to theMunicipal Council. Initially the Municipal Council decided to make the said Award applicable from 1-8-1970. But then there was an agitation by the employees and, therefore, the decision taken by the Municipal Council could not be transacted into practice and ultimately it was forced to accept the recommendation of the Badkas Commission and make the Award applicable with effect from 1-4-1966. According to the Municipal Council having regard to the obligatory duties it was not possible for them to arrange for making of payment of these four lakhs of rupees in a lump sum. Such a plea has also been taken by them in paragraph 14 of the petition. Therefore, obviously it could be said that the Municipal Council has not paid these arrears till the show cause notice was issued. But it is difficult to hold that this amounted to a persistent default for performance of duties. No specific order or direction has been placed on record to indicate that the Municipal Council was directed to pay this amount by a specific date. It is no doubt true that it could be assumed that once by a resolution the responsibility regarding payment of arrears of Badkas Award is accepted by the Municipal Council, it is duty-bound to pay it But if the Award is made applicable retrospectively from the year 1966, then it can very well be visualised that it may not be possible lot a local body to pay the whole amount in a lump sum in one year. The Budget estimates and recovery were already completed and even the accounts for the said period were duly audited and closed. Payments of arrears could be made only from the prospective recoveries. It is obviously not an obligatory duty. If, therefore, in this background incapacity to pay the whole amount in lump sum is duly explained by the Municipal Council and that too reasonably, in our opinion, it cannot be said that they had committed any persistent default in this behalf. So far as the charge No. 2 regarding beef-market stalls is concerned, it appears that there was difference of opinion between the authorities concerned and Municipal Council. It involves a question of policy and principles. It appears that there was a difference of opinion regarding the policy to be adopted in this behalf. According to the Municipal Council initially the Municipal Council had issued notice of auction sale on 6-2-1970 intimating that the auction sale will be held on 23rd of November 1970. However, that was postponed. Then only oneperson came forward and filled the tender. According to the Municipal Council there were complaints against him and it was alleged by others that he wants to create a monopoly. Therefore, in its wisdom the Council resolved to give these shops on fixed annual rent. This resolution was then suspended by the Collector. In the meantime the President and the Vice-President were ousted by passing a vote of no-confidence and ultimately the Collector's nominees held the auction. If the explanation given by the Municipal Council is true, then it cannot be said that here also there was any persistent default in performance of duties. In its wisdom as elected representative of the people with an intention to avoid the monopoly in the trade, rightly or wrongly, decision was taken by the Municipal Council which was not found to be correct by the Collector and, therefore, he suspended the resolution. It is not shown that this resolution was passed by the Municipal Council mala fide or the decision in that behalf was not honestly taken. Therefore, only because the said resolution was suspended and for the reasons disclosed in the explanation ultimately the auction was to be held through a revenue officer, it cannot be said that there was a persistent default on the part of the Municipal Council or they had disobeyed to carry out the directions or orders issued by higher authorities. Prom the final order it appears that to this Annexure also a charge was added which reads as under:

'Arrears of property tax of Rs. 3,234 and other were outstanding against the father of the President Shri V. J. Puro-hit. The said taxes have been paid by him on 3rd November, 1972.'

It is an admitted position that this was also not the subject-matter of the show cause notice. It is not necessary to deal with this additional charge also in view of the statement made by the learned Assistant Govt. Pleader before us that he is not relying upon it for supporting the order passed by the Government. Annexure III then deals with instances in which the Municipal Council had exceeded and abused its powers. Out of three charges enumerated therein, charge No. 3 relating to water connection does not find place in the final order. Charge No. 1 deals with percentage of expenditure over the Municipal staff which, according to the State, was 77 per cent and this was particularly so in the Octroidepartment. According to Municipal Council, it had submitted statement showing the Schedule of expenditure and according to it, it came to 42 per cent only. In paragraph 17 of the petition a specific averment is made that this statement was admitted at the time of hearing on 23rd August 1973. So Jar as surplus staff in the Octroi department is concerned the Municipal Council has clarified the position that Octroi ' department is governed by the Industrial Law and the department is required to work for 24 hours. As a result of this the staff which is required to be engaged is practically three-fold in number and this fact was also brought to the notice of the Minister for State at the time of hearing. The reply given by the Government in the return to this allegation is most cryptic. It is not denied in specific words that these facts were brought to the notice of the Minister for State and the statements made in this behalf were admitted at the time of hearing. Even in the additional affidavit we do not find anything regarding these allegations. So far as the charge regarding creation of 12 posts is concerned according to the Municipal Council, they were required to appoint 10 teachers in view of the ratio fixed by the Director of Education under the provisions of the School Code. The ratio fixed by the Director of Education is that there Should be one teacher for every 40 students. In view of this direction issued by the Director of Education, teachers were appointed. According to the Municipal Council, this position was also explained to the Minister at the time of hearing and the Minister also accepted the same. It was also pointed out that so far as the other two posts are concerned, one was a part-time employee and the other post was abolished. In reply to these averments made in the petition in the Return it was not disputed by the State Government that in view of the norms prescribed by the Deputy Director of Education 10 teachers were required to be appointed. However, according to the State Government, the prior sanction of the Director of Municipal Administration was necessary for this. So far as the averments made in the petition that these facts were admitted by the Minister at the time of hearing are concerned nothing has been stated in the return. It further appears to us that if the averment made in the explanation to show cause notice and the petition are correctthat in view of the norms prescribed by the Director of Education the Municipal Council was required to appoint the teachers then it can hardly be said that the Municipal Council had either exceeded or abused its powers. The ten posts out of 12 referred to in this charge related to the posts of teachers. So far as prior sanction for creation of the posts from competent authority is concerned, it is quite obvious that under Section 337 of the Act it is open for the authority to accord ex-post facto sanction if it is satisfied that such action was bona fide and has not caused or it not likely to cause injury to any person or that the action taken was in the public interest. Under Section 49 of the Act it is one of the obligatory duties of the Municipal Council to establish and maintain primary schools. Out of these 12 posts, some posts were of primary teachers and were created to meet educational needs in the primary schools due to increase of students and this was done with the sanction of Deputy Director of Education, Amraoti. Further it appears that the Mpl. Council was getting a matching grant from the Education Department in this behalf. So far as other posts of teachers are concerned, they were created for the Higher Secondary School maintained by the Municipal Council to meet the educational needs- in the town, The grant on the salary expenditure of these teachers was also sanctioned by the Government through Educational Officer, Zilla Parishad, Buldana. So far as appointments of two other posts are concerned, the explanation in that behalf was also given by the Municipal Council. To this schedule also in the final order we find that an additional charge is added, which is :

'Illegal termination of services of Sarvashri Paranjape, Typist and Satpute, Naka Mohrir'.

It is an admitted position that this charge was also not the subject-matter of the show cause notice. It is also not necessary for us to deal with this charge any further in view of the statement made by the learned Asstt. Govt. Pleader.

8. In Annexure IV, four instances showing that the financial position and the credit of the Council is seriously threatened, are given. Before dealing with this schedule, it will be worthwhile to refer to the actual order passed in this behalf by the State Government. It appears from the record that so far as the State Government is concerned,the matter in this behalf was heard by the Minister for the State and it is he who has taken the final decision. After hearing the Municipal Council as well as the complainants viz., Sarvashri J. N. Jadhao, Sk. Mohammad Jamadar, who are also respondents before us, the Minister passed the following order on 26-11-1973:

'The case of the Municipal Council, Malkapur, was heard by me on the 15th and 23rd October, 1973. The Council was represented by Advocate Mr. C. G. Mad-kholkar. The Chief Officer Shri M. S. Dawale, Shri M. Z. Aziz, Municipal Councillor were present on 15th instant. On the same day, complainants Sarvashri J. M. Jadav and Shri Shaikh Mohamad Jamadar were also present. On the second day of it i. e. 23rd October, 1973 besides the Advocate and the Chief Officer and Councillor Shri Aziz, the President of the Municipal Council Shri V. J. Purohit were present for the Municipal Council : complainants as stated above were also present. Out of 22 charges levelled against the Municipal Council, 17 charges have been proved against the Municipal Council. Besides following additional charges were made by the complainants during the hearing.

(i) Illegal termination of services of Sarvashri Paranjape, Typist and Satpute, Naka Moharir.

(ii) 60 Audit Paras, are still outstanding, oldest being for the year 1957.58.

(iii) Arrears of property tax of Rupees 3,234 and other taxes are still outstanding against the father of the President Shri V. J. Purohit.

All the above charges stand proved. In fact the arrears of taxes have been recovered from Shri J. B. Purohit, the father of the President of the Municipal Council on 3rd November, 1973 i. e. after I had directed the President to do so at the time of hearing on 23rd October, 1973. The Municipal Council has also admitted all the above 3 charges.

In view of the above position I am convinced that the affairs of the Municipal Council are not carried out according to the provisions of the law and that this is a fit case for appointing an Administrator under Section 313 of Maharashtra Municipalities Act, 1965. I, therefore, order that Administrator be appointed over the Municipal Council under Section 313 (1) (a) (b) (c) and (d) of the Act.'

9. In the return filed before us it is admitted that the decision to supersedethe Municipal Council was taken by the Government on 26-11-1973, obviously in view of this order passed by the Minister for State. Shri Salve Assistant Government Pleader is strongly relying upon this order. On the other hand, it is contended by the learned counsel for the petitioners, Shri Madkholkar, that he was present at the time of hearing even before the Minister for State and the statement made in the order that Municipal Council had admitted these additional charges is wholly incorrect. According to him, as the petitioners were not aware of this order passed by the Minister for State, they could not make any statement in that behalf in the petition. He further stated that they are coming to know about this order passed by the Minister for State for the first time. It is not necessary to deal with this aspect of the matter in detail because of the statement already made by the Assistant Government Pleader before us that he is not relying upon any of these additional charges for supporting the order passed by the Government superseding the Municipal Council.

10. From the bare reading of this order it is quite clear that the Minister found that out of 22 charges levelled against the Municipal Council, 17 charges have been proved. It was fairly conceded by Shri Salve before us that this figure given in this order is arithmetically wrong. Out of 22 charges initially levelled against the Council, it is admitted position that some of them were deleted and were not relied upon when the final order was passed. At the most even after including the charges which were vague in nature it could be said that 15 charges could be found to be proved by the Government, because excluding the newly added charges only 15 of them find place in the final order. Further it is clear from this order that some additional charges were made by the so-called complainants during the hearing and those charges were also found to be proved and were relied upon by the Minister for passing the order. After taking into consideration those charges the Minister formed an opinion and came to the conclusion that,

'affairs of the Municipal Council are not carried out according to the provisions of law and, therefore, this is a fit case for appointing an Administrator under Section 313 of the Maharashtra Municipalities Act, 1965.'

This part of his reasoning or order is covered by Sub-clause (d) of Sub-section (1) of Section 313 of the Act. Therefore, ultimately the Minister for State directed that Administrator should be appointed over the Municipal Council under Section 313 (1) (a), (b), (c) and (d) of the Act. So far as Sub-clause (e) of Sub-section (1) of Section 313 of the Act is concerned, in this final order passed by the Minister for State no reference is made to it. On the contrary, the Minister has only relied upon Sub-clause (d) of Sub-section (1) of Section 313 of the Act which was never the subject-matter of the show cause notice. Though the Minister directed appointment of an Administrator under Sub-clauses (a), (b), (c) and (d) of the Act, in the final order we find that Clause (d) Sub-section (1) of Section 313 of the Act is not relied upon neither referred to. Further in this order we do not find anywhere that the Minister, who formed the opinion on behalf of the State, ever thought that any of the grounds or charges levelled against the Council were severally or jointly serious enough to warrant action against the Municipal Council. On the contrary, it is quite obvious from the bare reading of this order that after taking into consideration the cumulative effect of all these 17 charges which, according to the Minister, were found to be proved, plus three more newly added charges, he came to the conclusion that situation has arisen in which administration of the Council cannot be carried out in accordance with the provision of the Act. What does it mean is difficult to understand. Therefore, it is obvious that the opinion was formed by the Minister for State on the basis of cumulative effect of all the charges, which according to him, were proved. Therefore, this is not a case where an opinion has been formed by the competent authority that the charges which were levelled against the Council were severally serious enough to warrant action under Section 313 of the Act. The recitals to that effect in the Government Resolution have no effect because it is not in conformity with the decision taken by the Minister for State. It is an admitted position even from the return that the decision to supersede the Municipal Council was taken on 26-11-1973. Before us Shri Salve has relied upon this decision dated 26-11-1973 which was taken by the Minister for State on behalf of the State Government. From the files produced before us it appears that the decision in this behalf was taken by the Minister for State.

Therefore, it is obvious from the order of the Minister for the State that he has not formed an opinion that financial position and the credit of the Council was seriously threatened. To us it appears that it is the order passed by the Minister for State which is decisive of the matter because it was he who heard and decided the matter as a representative of the State Government. Therefore, in our opinion, strictly speaking the charges made in Annexure IV are not germane for deciding the question involved in this writ petition. Even otherwise, if the said charges levelled against the Municipal Council are read in its context as referred to in Annexure IV, they are as under:

'(1) The liabilities (Rs. 13,28,508) exceed the asset (Rs. 8,86,103) on 31-12-1972. (2) The average deficit of the Municipal Council was Rs. 4,640. There was always minus real cash balance with the Municipal Council (3) Percentage of recovery of Consolidated Property Tax, namely, 51 per cent is not satisfactory. There are heavy arrears amounting to Rs. 1,42,190 on 31-12-1972 as against, normal yearly demand of Rs. 1,32,000. The arrears of all taxes as on 31-12-1972 were Rs. 4,14,000 as against the demand of Rs. 6,93,842. This has been reduced to Rs. 3,12,936 on 26-3-73. (4) The special sanitary service and the Water Supply Scheme are not self supporting. (5) The income from Octroi has shown a reduction from Rs. 6,86,000 to Rs. 3,86,560 within a period of two years ending March 1972. The percentage of expenditure on Octroi staff is high, namely 44% as against the prescribed percentage of 20.'

So far as charge No. 2 is concerned, it is an admitted position that it was not relied upon when the final order was passed. So far as charge No. 1 is concerned, in the show cause notice the liabilities referred were up to 31-12-72 whereas in the final order the liabilities were taken into consideration as on 5th November 1973. Obviously, therefore, the Municipal Council had no notice that their financial position relating to the liabilities and assets up to 5th of November 1973 will be taken into consideration or will form part and parcel of the charge. So far as charge No. 3 relating to the percentage of recovery of Consolidated Property Tax is concerned, we find on page 91 of the petition that a statement showing the position of recovery and arrears of various municipal taxes from1-4-1972 to 3lst March 1973 wag produced before the State Government. From this statement it appears that recovery was 67 per cent and not 51 per cent as shown in the show-cause notice or in the final order. About this charge in paragraph 21 of the petition explanation has been given by the Municipal Council. The said explanation was also given before the Minister for State. A positive statement is made in the petition that this position was explained, in detail and was admitted to be correct by the Minister for State on 23-10-1973. It is no doubt true that this statement is disputed in the return. However, it is quite obvious that in spite of the schedule submitted by the Municipal Council explaining the whole position which is at page 91 of the petition, mechanically the whole thing is reproduced from the original charge-sheet even in the final order without considering the explanation or the schedule of recovery submitted by the Municipal Council. This clearly indicates non-application of mind. So far as charge No. 4 relating to Special Sanitary Service and the Water Supply Scheme being not self-supporting are concerned, the Municipal Council had given a cogent and convincing explanation in that behalf also. According to the Municipal Council, the proposal for additional water pipe line was submitted to the Urban Development Department which was promptly rejected by it. Therefore, there are a very few water lines in the town and revenue from this water connection cannot be sufficient to make the scheme self-supporting. It was further clarified that so far as this position is concerned, similar is the position in other Municipal Councils in the whole of the State of Maharashtra whether it is being run by the elected Councillors or by the Administrator appointed by the Government. So far as the charge relating to the income from octroi tax and the expenditure on the staff is concerned, the Municipal Council in its explanation had contended that in view of the fact that more than 8 hours duty cannot be assigned to any employee, they were required to engage more staff. It was also explained that Buldana district was declared a scarcity district in the years 1970-71, 1971-72 and 1972-73 and, therefore, trade was seriously affected. The Cotton Procurement Scheme was also introduced by the Government. It has also adversely affected the trade of the town. A further Scheme of Procurement ofJowar and Wheat was also introduced by the Government and this hag affected the revenue on that count. Therefore,according to the Municipal Council because of the acute scarcity conditions and introduction of this monopoly scheme the trade of the town had suffered and hence there was a reduction in the revenue. However, they further explained that this was beyond their control and they were taking necessary steps in that behalf. In paragraph 23 of the petition it was stated on behalf of the petitioners that this position was also discussed at length with the Minister for State at the time of hearing. In the petition it was also contended on behalf of the petitioners that the position or circumstances on the basis of which various charges were framed by the State Government for superseding the petitioner Municipal Councils were practically prevalent in all the Municipal Councils throughout the State of Maharashtra. Therefore, it was contended on behalf of the petitioners before us that only the petitioner-Council is chosen for such an action and that too for extraneous reasons. The contentions raised in the petition that similar position is prevalent in other Municipal Councils in the State of Maharashtra is not specifically denied in the return. No doubt, it is true that only because such a situation is existing in other Councils, it is not open for the petitioners to contend that they have a right to continue such circumstances or commit such defaults. However, when allegations of mala fides and discriminations are made in the petition, it was expected of the respondents that they would clarify the whole portion in the return. Unfortunately this has not been done.

11. Further it is an admitted position that initially a show-cause notice was given to the Municipal Council. The Municipal Council had given a detailed explanation relating to each and every charge. In spite of this fact in the final Government Resolution issued on 1st December 1973 superseding the Municipal Council and appointing the Administrator, no reference is made to the show cause notice. Even in the speaking order passed by the Minister for State we do not find any consideration of this explanation submitted by the Municipal, Council. If an authority is called upon to submit explanation in reply to a show-cause notice issued to it, it is normally expected that the said explanation will be duly considered by the competent authority and at least the files will disclose as to why the said explanation is not accepted or is not acceptable. In this context a reference could be made to a decision of Allahabad High Court in State of Uttar Pradesh v. K. C. Gupta 1974 All LJ 58 as well as to a decision of Madhya Pradesh High Court in Suresh v. State referred to hereinbefore. While considering the similar position under Section 422 of the Madhya Pradesh Municipal Corporation Act the Madhya Pradesh High Court observed:

'In this context, the further requirement that the reasons for making the order shall be stated, must be understood to mean that reason for rejection of the explanation of the Corporation must also be stated. The statutory requirement of stating the reasons is not satisfied simply by narrating the charges and the opinion of the Government that the explanation of the Corporation has failed to meet the charges; in our view it is also necessary that reasons for that opinion should be stated.'

In the present case apart from the fact that it is not stated in the order passed by the Minister for State as to the explanation given by the Municipal Council is not acceptable, we do not find even a bare reference to the said explanation in the order. As already observed, even the factual position stated in the order is incorrect. During the course of hearing certain grave and serious new charges have been added and from the tenor of the order passed by the Minister for State it appears that it is these charges which have weighed with him for forming the opinion.

12. This is not all. From the file produced before us an impression is created that even before the matter was heard, a decision was already taken for superseding the Municipal Council. In the reply to the show-cause notice the Municipal Council had stated that there is an opposition group in the Municipal Council which is headed by Shri J. N. Jadhao. It was also stated that Shri J. N. Jadhao was President of the Municipal Council for last 12 years and that it was for the first time that he was defeated. A further allegation was also made that as Shri Jadhao was defeated, he got frustrated and, therefore, with a mala fide intention and jealously he started making complaints against the MunicipalCouncil. A specific allegation was made that he was creating troubles and impediments with the sole motive of getting the Municipal Council superseded because he was defeated in the presidential election. A further allegation was also made that he held an influential office in the political party in the district. He was Vice-President of the District Congress Committee and by utilizing his position in the party he was making false complaints against the Municipal Council with an intention to achieve his political end. From the files produced before us we find that there are several letters written by Shri Jadhao to the Chief Minister as well as Minister for State. On one such letter he had made a reference to the visit of the Minister for State to Malkapur and it is further stated therein that in visit the Minister had told them that show-cause notice was already issued to the Municipal Council and as soon as reply was received orders regarding supersession of the Municipal Council would be passed. This position may be true or may not be true. It may be that he carried such an impression. But from the final order passed by the Minister for State it is quite obvious that it was on the complaint by these persons that the action was taken. They were also present at the time of hearing. In the order passed by the Minister they are described as complaints. Prom the letter-head on which such letter is written it appears that Shri Jadhao was member of Maharashtra Pradesh Congress Committee and was also a President of the Nagar Congress Committee. If this is so, then it cannot be said that the apprehension in the mind of the petitioners in this behalf was wholly unwarranted. However, a contention was raised before us by the learned Assistant Government Pleader that no specific allegations in this behalf have been made in the petition and, therefore, the State Government was not bound to give any answer in this respect In our opinion, the State Government is not justified in taking shelter behind this technical objection. In the petition a specific reference is made to the explanation given by the Municipal Council in reply to the show-cause notice. The same is appended to the petition as annexure. Summary of the explanation has been given in the petition and we think rightly. Otherwise the petition would have become cumbersome if each and every thingfrom the explanation was produced in the petition itself. Sufficient reference has been made to the annexures in the petition itself and a summary thereof is given. Further so-called complainant, including Shri Jadhao were joined as parties to the petition. In spite of notice they have chosen to remain ex parte. Therefore in a cumulative effect of all the circumstances disclosed on record is taken i. e. starting from the institution of the action against the President, then institution of an inquiry under Section 311 of the Act and its dropping down in view o the stay order issued by this court, coupled with the circumstances in which gazette was got printed, order was prepared, dated and served, we are satisfied that the whole inquiry in this behalf has not been conducted fairly and properly or in any case in consonance with the principle of natural justice. The principle of natural justice is minimum required that if any additional material or charge was intended to be used against the Municipal Council, they should have been given a reasonable opportunity to submit their explanation or to put forward their case in reply to the same. That too was not given. It is no doubt true that from the material placed on record it could be said that some of the charges levelled against the Municipal Council were either admitted or were proved, though they were explained by the Municipal Council. But as already observed the order passed by the Minister for State is based on the cumulative effect of all the charges and we are satisfied that but for the charges which were newly added or were either vague or non-existent, the present order would not have been passed by the State Government.

13. However, an argument was advanced by Shri Salve that in the present case even if the newly added charges or the charges which are either nonexistent or vague are excluded, from the consideration, still there are some charges which are proved and they are of serious nature for which the State Government could have legally taken the same action In support of this contention Mr. Salve has relied upon a decision of the Supreme Court in the State of Maharashtra v. B. K. Takkamore : [1967]2SCR583 and particularly upon the following observations on page 325:

'The principle underlying these decisions appears to be this. An administrative or quasi-judicial order based on several grounds, all taken together, cannot be sustained if it be found that some of the grounds are non-existent or irrelevant and there is nothing to show that the authority would have passed the order on the basis of the other relevant and existing grounds. On the other hand, an order based on several grounds some of which are found to be non-existent or irrelevant, can be sustained if the Court is satisfied that the authority would have passed the order on the basis of the other relevant and existing grounds, and the exclusion of the irrelevant or non-existent grounds could not have affected the ultimate opinion or decision.'

In our opinion, the law laid down by the Supreme Court in State of Maharashtra v. B. K. Takkamore's case has no application to the facts and circumstances of the present case. In that case in the show-cause notice itself a specific reference was made by the State Government that in its opinion the second ground alone was serious enough to warrant an action of supersession. We do not find such an averment in the show-cause notice issued in the present case, or in the speaking order passed by the Minister for State. For the first time in the Government Resolution which is purported to be published in the Extraordinary Gazette on 1st December 1973 a reference is made that the allegations made on verification have been found to be true and severally and jointly appear serious enough to warrant action against the Municipal Council under Section 313 of the Act. As already observed by us, this is not the opinion of the State Government. In this case the decision in this behalf was taken by the Minister for State. It is the Minister for State who had formed an opinion on behalf of the State Government and his opinion or decision is not reflected in this Government Resolution and that too for the obvious reasons to which we have already made a reference. Further the said Government Resolution as well as the publication of the Official Gazette is itself clouded by various circumstances referred to herinbefore. Further this is a case where certain other grounds were added to the charges already levelled in the show-cause notice. The order passed by the Government superseding the Municipal Council is based on a cumulative effect of all the charges levelled against the Municipal Council which are referred to in the finalorder. From the tenor of the order passed by the Minister for State it is not possible to separate one charge from another nor it is possible to speculate that the Government was satisfied that any one of the charges levelled against the Municipal Council were serious enough to warrant action under Section 313 of the Act. In view of the various circumstances referred to hereinbefore, we are satisfied that in the present case the authority concerned would not have passed the order on the basis of the other relevant or existing grounds alone nor we are satisfied that the exclusion of additional or non-existing grounds would not have affected the ultimate opinion or decision. In the present case the Minister for State had expressly recorded his opinion. From the words used in his order there is no doubt in our mind that it was the cumulative effect of all the charges and the grounds referred to therein that has resulted in passing the present order. It appears that the Minister for State has attached more weight and importance to the newly added grounds. The charges, cumulative effect of which was the opinion formed by the Minister for State, included the charges which were non-existent as well as newly added charges. The numerical mistake in the order clearly indicates non-application of mind. Further the Minister for State has not made any reference to Clause (e) of Section 313 but has relied upon Clause (d) of the said Sub-section. Further we do not find that the explanation given by the Municipal Council was ever considered by the Minister for State on its own merits. On the contrary, the initial charges levelled in the show-cause notice were mechanically reproduced in the Government Resolution without even taking into consideration the relevant date placed before the Minister for State by the Municipal Council. This also indicates non-application of mind. Further the extraordinary way and method in which the Government Resolution was issued and published it in the Official Gazette has not been duly explained by the State Government It is not clear from the return as to why Government thought it necessary to follow such an extraordinary method in this case alone. In a democratic society it is of the essence that democratic institutions which are pan and parcel of the scheme of decentralisation of power are allowed to function and not superseded oncharges inadequately brought home or unreasonably accepted. In this view of the matter, it is not possible for us to sustain the order of supersession passed by the State Government.

14. Before we part with the judgment, we must take a note of an objection raised on behalf of the State that the petition itself has become in-fructuous in view of the subsequent enactments and events referred to in the additional affidavit filed by Shri Waghmare, officiating Administrator of the Municipal Council, Malkapur. In this additional affidavit filed on behalf of the State it was contended that the term of the present Municipal Council had already come to an end and was merely extended because of the postponement of general elections. Further the term of the existing Administrator was also extended in view of the subsequent enactments. Reliance was also placed on the latest Ordinance and the Act known as the Maharashtra Municipal Councils and Municipal Corporations (Postponement of Elections During the Emergency) Act 1975. According to the learned Assistant Government Pleader, the term of the Administrator of the Municipal Council stands extended during the aforesaid period in view of Section 3 (1) (c) of the said Act. It is not possible for us to accept the contention that in view of the subsequent enactment the petition has become in-fructuous. In the present case the action was taken under Section 313 of the Act for appointment of an Administrator. It is an admitted position that no order has been passed by the State Government under Section 315 (3) of the Act dissolving the Council. This is not a case- where a Council is dissolved. In view of the provisions of the Maharashtra Municipalities Act, the Council has a perpetual succession and it is still subsisting. Only in place of elected Councillors the powers of the Municipal Council and other authorities are being exercised by the Administrator. It is also not disputed before us that if Administrator was not appointed and the elected Councillors had continued in office and for one reason or other elections were not held then the old body would have continued. If this is so, in our opinion only because the elections are being postponed or fresh elections could not be held in view of the postponement enactment, it cannot be said that the petition itself has become in-fructuous. The order of super-session of the Council and appointmentof an Administrator to some extent is penal in nature and casts a stigma on the Councillors as well as the Municipal Council. In these circumstances, it is difficult to say that only because general elections are postponed the petitioners have no right to challenge the order of supersession itself at this stage. The grievance made in the petition still survives. It is not controverted before us that normal term of the Councillors under Section 40 of the Act is five years, which may be extended by the State Government under exceptional circumstances. The term of the office of the Councillor commences on the date of meeting held after the general election to elect President. Under Sub-section (3) of Section 40, notwithstanding the provisions of Sub-section (1) and (2) of the said section, the term of office of the outgoing Councillor is deemed to be extended to and expired with the day immediately preceding the date of such meeting. Apparently, therefore, existing Councillors are entitled to continue in office under Statute till the new Councillors are elected. Though, therefore, the initial term of the Councillors had expired, they are entitled to continue in office. Further having found that the impugned order is tainted with vice and violation of rules of natural justice and was issued in colourable exercise of power and under the existing law the Councillors of the Committee are entitled to retain their office till fresh elections are held, it seems to us that in the facts and circumstances of the case it will be a sound exercise of judicial power to set aside and quash the impugned illegal order rather than to allow it to stand. If the said order is permitted to stand it would only mean replacement of a popularly elected Municipal Council by an official Administrator and that too when his appointment is held to be illegal. Therefore, considering the entire case in the light of the peculiar facts and circumstances placed before us, we are constrained to allow the writ petition and to quash the impugned order.

15. In the view, therefore, we have taken, the petition is allowed. The order passed by the State Government dated 1-12-1973 under Section 313 of the Maharashtra Municipalities Act, 1965 and published in Extraordinary Gazette dated 1st of December 1973 and incorporated in Annexure F to the petition is, therefore, quashed and set aside. The petitionerswill be entitled to their costs from respondent No. 1.

16, At this stage the oral request for leave to file an appeal to the Supreme Court of India is made by the Assistant Government Pleader on behalf of respondent No. 1'. In the present case we have only applied the well-established principles of law as laid down by the Supreme Court to the facts and circumstances of the present case. In this view of the matter, we do not feel that this is a fit case where such a leave should be granted. The prayer made in this behalf is, therefore, rejected

17. Petition allowed.


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