Jafrabad,Through its Chief Officer,Tq. Jafrabad & Dist. Jalna....RespondentsMr v. D. Sapkal, Senior
Case Details
2025:BHC-AUG:14334 (1)wp5851.25IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 5851 OF 2025ANDCIVIL APPLICATION NO. 5342 OF 2025 IN WP/5851/2025ANDCIVIL APPLICATION NO. 5341 OF 2025 IN WP/5851/2025Smt. Surekha W/o Sanjay Lahane,President of Jafrabad MunicipalCouncil and Nagar Panchayat,Age: 48 years, Occu.: President,R/o.: Aadarshnagar, Jafrabad,Tq.: Jafrabad, Dist.: Jalna .. PetitionerVersus1. The State of Maharashtra,Through its Secretary,Urban Development Department,Mantralaya, Mumbai-32.2. The Hon’ble Shri Eknath Shinde,Deputy Chief Minister, Maharashtra State Mantralaya, Mumbai 400 0323. The Hon’ble Minister,Urban Development Department andChief Minister,Maharashtra State,Mantralaya, Mumbai – 400 032.1 of 24
Legal Reasoning
(2)wp5851.254. The District Collector,Jalna.5. The Nagar Panchayat, Jafrabad,Through its Chief Officer,Tq. Jafrabad & Dist. Jalna....RespondentsMr. V. D. Sapkal, Senior Advocate i/b Mr. S. R. Sapkal, Advocate,Mr. R. N. Patil, Mr. S. T. Chalikwar, Advocate, Mr. Y. A. Jadhav,Advocate for the petitioner Mr. P. D. Patil, AGP for the respondents/State Mr. Rajendra Deshmukh, Senior Advocate i/b Mr. S. V.Deshmukh, Advocate, Adv. Ashwini Deshmukh, Advocate for therespondent/applicant (in CA5341/2025)Mr. S. B. Deshpande, Senior Advocate i/b Mr. N. S. Jaju,Advocate for the respondent/applicant (in CA/5342/2025)CORAM:KISHORE C. SANT, J.RESERVED ON:06th MAY, 2025PRONOUNCED ON:27th MAY, 2025ORDER 1. This matter was heard on 06-05-2025 for finaldisposal by consent of the parties. However, the judgment couldnot be prepared till 09-05-2025 and thereafter vacation started.Thereafter, from 13-05-2025 till 25-05.2025, this court was outof station. The petitioner moved a preacipe for pronouncementof judgment in the vacation. It was informed to the Senior2 of 24 (3)wp5851.25Private Secretary that pursuant to the impugned order now thelearned Collector, Jalna has declared a program of election tothe post of President, Nagar Panchayat on 30-05-2025. In viewof this facts, the court is pronouncing the judgment in thevacation.2.The petitioner has challenged an order whereby sheis held to be disqualified as President under Section 55-A and55-B of the Maharashtra Municipal Councils, Nagar Panchayatsand Industrial Townships Act, 1965 (hereinafter referred to asthe said Act). Further she is held to be disqualified even asCouncillor. She is further held not eligible even to contestelection for 6 years to the post of Councillor. Respondent No.1 isthe State of Maharashtra Through Secretary, UrbanDevelopment Department. Respondent No.4 is the DistrictCollector, Jalna. Respondent No.5 is the Nagar Panchayat,Jafrabad through its Chief Officer. No notice is required torespondent No.5.3 of 24 (4)wp5851.253.Civil Application No. 5341/2025 for intervention isfiled by the caveator who is not a party to the petition. It isstated that this applicant is councillor and is instrumental inaction under Section 55-A of the said Act. Civil ApplicationNo.5342/2025 is by another Councilor who supports theimpugned order. This application is also for intervention in thewrit petition by another Councillor.4.The facts giving rise to the present petition, in short,are as under that the petitioner came to be elected as aCouncilor in the Municipal Council, Jafrabad. The Councilconsists of 17 Councillors. On 27-02-2023, 12 Councillorsmoved an application to the Collector requesting him to convenea special meeting for holding no confidence motion or to initiateproceeding under section 55-A against the petitiioner. Thelearned Collector however, did not convene any meeting andinstead started an enquiry by framing charges and submitted areport to the Government. On the report the then Chief Ministerholding portfolio conducted a hearing. The Hon’ble Minister4 of 24 (5)wp5851.25held the petitioner to be disqualified under Section 55-A of thesaid Act. The petitioner challenged the said order by filing a WritPetition No.11792/2023. This court by its order quashed theorder passed by the Hon’ble Minister and remanded the matterback by directing to initiate fresh proceeding by issuing noticeunder Section 55-A. This court recorded that no properopportunity of hearing was given to the petitioner.5.Pursuant to the order passed in the writ petition,again notice came to be issued by the Hon’ble Minister on 23-11-2023. Fresh notice was issued. However, on 30-11-2023 theHon’ble Chief Minister issued fresh show cause notice underSection 55-A and 55-B cancelling notice dated 23-11-2023. Asper allegations in the petition, on 20-03-2025 hearing wasscheduled at 03.00 pm through video conference (VC). Thepetitioner and her advocate though were present from 02.30 to04.40 pm no hearing took place. There was no proper intimationgiven as to whether and when hearing would be conducted asthe assembly session was going on. The petitioner was not well5 of 24 (6)wp5851.25and therefore she left the V.C. hall at 4:40 pm giving requestletter to communicate the next date of hearing. In stead ofconducting the hearing, the petitioner was asked to give writtensubmission within three days which the petitioner submittedalongwith written notes of argument. The Hon’ble Ministerthereafter passed an order on 09.04.2025 and removed thepetitioner from the post of President under Section 55A and 55Bof the said Act. It is also held that the petitioner shall ineligibleto contest the election for six years. The said order wascommunicated on 29.04.2025. The petitioner has thusimmediately approached this Court challenging the impugnedorder.6.Mr. V. D. Sapkal, the learned Senior Advocatevehemently argued that entire episode shows that the order ispassed in undue haste without giving proper opportunity to thepetitioner. In the earlier round of litigation, this court has setaside action under Section 55A. The matter was remandeddirecting to issue fresh notice under Section 55A. There was no6 of 24 (7)wp5851.25question of issuing notice under Section 55B of the Act.However, as there was no material under Section 55Adeliberately fresh notice is issued under Section 55B and theimpugned order is passed. The entire action is taken due topolitical enmity. The petitioner was a candidate of United Shiv-Sena. After split in the political party i.e. Shiv-Sena (UBT) andShiv-Sena (Shinde), the petitioner went with Shiv-Sena (UBT).Shiv-Sena (Shinde) came in power. It is because of this presentaction is taken. The learned Collector without conveningmeeting for no confidence motion has sou-moto submittedreport to the Government, on which the Government has acted.The learned Collector has acted beyond its power by submittinga report without any reason. He submits that complaints weremade by 12 Councilors to the Collector for calling a meeting forno confidence motion. In the said notice, there are no specificallegations attracting the provisions of Section 55A. The learnedCollector, however, directed those Councilors to attend thehearing under Sections 341B-5 of the Act which requires theCollector to start and complete the inquiry within one month. If7 of 24 (8)wp5851.25inquiry is not completed within three months, it can be extendedonly subject to prior sanction of the Government. He submitsthat inquiry report was thus required to be completed withinone month. However, same was submitted on 10-04-2023. Thelearned CEO had submitted a report to the Collector on 23-03-2023. It is thereafter notice was given by the Government on13.06.2023. He submits that after hearing, the Hon’ble Ministerpassed an order. In the order it is stated that no meeting wasconducted as per Section 81(1) and Section 51 of the Act withinone month.7.So far as action under Section 55-B is concerned, hesubmits that there was no occasion for the Government to issuenotice under Section 55-B, as no case was made out. On thequestion of authority, he submits that, Constitution does notrecognize any authority as Deputy Chief Minister. The orderpassed by the Hon’ble Minister is passed without any suchauthority. He relies upon the circular dated 14.07.2023 whichprescribes that notice of at least 5 days be issued on the basis of8 of 24 (9)wp5851.25judgment in writ petition No.3973 of 2023 (Devidas Ingle Vs.State) which requires that the person requires minimum noticeof five working days be given to the parties.8.The learned Senior advocate for the Petitioner relieson the judgment in the case of Ravi Yashwant Bhoir Vs DistrictCollector, Raigad and others1 and Savitri Chandrakesh Pal VsState of Maharashtra and others2. He also relied upon thejudgment in the case of Surekha Vs. State of Maharashtra (ofthis petitioner) 3 9.Mr. Rajendra Deshmukh, the learned SeniorAdvocate in Civil Application No.5341 of 2025 submits that theapplicant is a Councillor and thus is interested party. On thepoint of locus, he submits that the applicant is one of thepersons who moved the Collector to convene a meeting for noconfidence motion. He submits that the petition deserves to bedismissed on the ground of non-joinder of necessary party at the12012 (2) Bom CR 85922010 (Supp) Bom CR 48232023 SCC Online Bom 23359 of 24 (10)wp5851.25threshold. He further submits that the concern of the applicantis that municipal council should run as per law. To continuedisqualified person as President is against the public interest.One of the signatories of the letter to the Collector is made aparty (Respondent No.6, now deleted) which shows that eventhe petitioner has knowledge that the signatories of the letterare necessary parties. He further submits that even if it is takenthat locus is not material, still legal injury that will be causedneeds to be seen. He further submits that the Hon’ble Ministerhas rightly passed the order by giving proper opportunity ofhearing. The petitioner herself accepts that she was present inthe VC room. By giving lame excuse, she left the VC hall at04:40 pm. He submits that Section 341B-5 of the said Act camein statute book after the judgment in the case of Ravi Bhoir(Supra) . This judgment is therefore not applicable. He submitsthat the charge is now taken by the Vice-President. The Hon’bleMinister has rightly dealt with points those were crystallized.The Collector had clearly stated that the charges Nos. 3 and 4are duly proved showing that the petitioner has behaved in10 of 24 (11)wp5851.25manner amounting to misconduct. The petitioner could notrebut all these by giving any material. It is the President who hascontrol over the administration and therefore it was for her togive reason as to why meeting could not be held. In the meeting,some resolutions were passed on the subjects which were takenwithout publishing the main agenda. Special subjects werehaving financial implications. He thus submits that the petitiondeserves to be dismissed.10.Mr. Sanjeev Deshpande, the learned Senior Advocatein Civil Application No.5342 of 2025 submits that the proposalsmore than worth of Rs.2,00,000/- were passed without therebeing any power vested in the President. The President couldnot act efficiently and this certainly can be said to be act ofmisconduct. When law requires the President to hold themeetings, still that not holding the meetings shows state of mindof the President. It is not a matter of desertion of the Presidentto hold or not to hold the meetings. The judgment in the case ofRavi Bhoir (Supra) would not help the petitioner. So far as11 of 24 (12)wp5851.25giving an opportunity is concerned, he submits that time to timeopportunities were given. Though the petitioner left VC hall stillher Advocate was very much present on the date of hearing.Written notes of argument were also submitted thereafter andthese are also considered by the Hon’ble Minsiter. 11.On merits, Mr. Deshmukh, the learned SeniorCounsel adopted the arguments advanced by Mr. Deshpande,the learned Senior Counsel. He submits that this is fourth roundof petition before this Court. In addition he submits that reportof the learned Collector shows that bogus minutes wereprepared by the petitioner. The resolutions were passed havingfinancial implications without authority. The report of thelearned Collector shows that the allegations made by theCouncils were found to be correct. About authority of theMinister, he submits that though designation is shown as DeputyChief Minister however, he is the Minister having port-folio ofUrban Development Department.12 of 24 (13)wp5851.2512.He, thus, prays for rejection of the petition.13.The learned AGP Mr. P. D. Patil, justifies the order. Hesubmits that the Hon’ble Minister has rightly passed the order.He also prays for dismissal of the writ petition.14.To appreciate the matter, it is necessary to see therelevant sections reproduced as below:Section 55-A, 55-B and Sections 341B-5 reads as under:“Section 55A. Removal of President and Vice-President by GovernmentWithout prejudice to the provisions of section [55-1A] and 55, aPresident or a Vice-President may be removed from office by the StateGovernment for misconduct in the discharge of his duties, or forneglect of, or incapacity to perform his duties or for being guilty of anydisgraceful conduct, and the President or Vice-President so removedshall not be eligible for re-election or re-appointment as President orVie-President, as the case may be, during the remainder of the term ofoffice of the Councillors:Provided that, no such President or Vice-President shall beremoved from office, submitted by the Collector under section 55-1,within a period of six months from the date of receipt of the report. [Provided further that, the Government shall take a decisionon the report submitted by the Collector under section 55-1, within aperiod of six months from the date of receipt of the report.][Section 55B. Disqualification for continuing as Councillor orbecoming Councillor on removal as President or Vice-PresidentNotwithstanding anything contained in section 55A, if aCouncillor or a person is found to be guilty of misconduct in thedischarge of his official duties or being guilty of any disgracefulconduct while holding or while he was holding the office of thePresident or Vice-President, as the case may be, the State Governmentmay-13 of 24 (14)wp5851.25(a)disqualify such Councillor to continue as a Councillorfor the remainder of his term of office as a Councillor and also forbeing elected as a Councillor, till the period of six years has elapsedfrom the order of such disqualification;(b)disqualify such person for being elected as a Councillortill the period of six years has elapsed from the order of suchdisqualification.]Section 341B-5. Removal of President of Nagar Panchayat byCouncillors(1)The requisition for removal of the President elected undersection 341B-1 shall be signed by not less than one – half of the totalnumber of Councilolors and shall contain the charges of misconductagainst such president and shall be sent to the Collector:Provided that, no such requisition shall be sent within a period of oneyear from the date of election of such President. (2)Upon receipt of the requisition under sub-section (1), theCollector shall conduct the enquiry of such charges and complete suchenquiry within a period of one mointh from the date of receipt of therequisition.Provided that, in no case such period of enquiry shall be extendedbeyond three months and for such extended period, prior assent of theState Government shall be obtained by the Collector, if the enquiryproceeding is delayed due to unavoidable reasons. (3) the Collector shall submit the findings of the enquiry to theGovernment for taking appropriate action under section 55-A asapplicable therefor.” 15.In the case of Savitri (Supra), this court laid downthe procedural guidelines for deciding the matters by quasi-judicial authorities. It is required that parties be given sufficientopportunity to put-forth their case. In the case of Ravi (Supra)the Hon’ble Apex Court has held that removal of elected personsis a serious things. It is further considered the misconduct anddisgraceful conduct as stated under Section 55-A and 55-B. Inthe said case also the allegations were that the President of the14 of 24 (15)wp5851.25Municipal Council had not held the meetings. Statutoryauthority while reaching to the conclusion had not consideredthe explanation. It was held that not conducting oneselfaccording to the procedure prescribed by law or omission toconduct the meeting without any corresponding loss to thecorporate bodies would not be misconduct by itself. No suchinterference can be drawn unless positive intention is shown.The order of removal merely for not holding meetings was setaside. It was held that the appellant therein could not be heldexclusively responsible for not conducting the meetings. Thecourt held that the person in that case was removed in casualand cavalier manner. It is expected of the statutory authorities toscrupulously follow the statute. The orders passed by theHon’ble Minister as well as High Court were set aside.16.This court while deciding the matter of thispetitioner, in the earlier round, had considered that the notice tothe petitioner was issued only under Section 55-A of the Actwhile order was passed under Section 55-A and 55-B and15 of 24 (16)wp5851.25holding that final order of the statutory authority is withoutgiving any notice. The court remanded the matter back for freshconsideration. Para Nos. 30 and 31 of the order dated 26-10-2023 reads as under:-“30. In view of the same, the impugned order set side. Thematter is remitted to the statutory authority for freshadjudication from the stage of issuance of fresh notice by thestatutory authority under section 55A of the Act.31. Observations made in this judgment are limited for theremand of the case and are not to influence the statutoryauthority in passing the final orders. The statutory authority toindependently decide the proceedings before it.”17.In the present case, first question is therefore, as towhether after remand, the authority has given sufficientopportunity of hearing. From the record it is seen that afterremand, the notice was issued on 23-11-2023 only underSection 55-A asking the petitioner to show cause as to why sheshould not be removed. By another notice dated 30-11-2023, thenotice dated 23-11-2023 came to be cancelled and correctednotice was issued wherein ten days time was granted to furnishwritten explanation. This notice was under Sections 55-A and55-B. Basis of this notice was the same report which wasfurnished by the learned Collector. This court holds that notice16 of 24 (17)wp5851.25was issued under section 55-A as well as 55-B and the petitionerwas made aware of the charges. Again this notice waschallenged by filing the writ petition No.15181/2023. This courthowever held that it was only to challenge the notice at pre-mature stage. The writ petition came to be disposed off withliberty to the petitioner to raise all the contentions before thestatutory authority. It was made clear that this court has notmade any adjudication.18.This court thus finds that sufficient notice was givento the petitioner. Reference of the circular that sufficientrequired filed is thus of no avail as notice of 10 days notice. Thesubmission that when adjournment was sought, only three daystime was given. This court finds that same also does not holdany water, as it was time granted for filing written submission. Itwas not first notice directing the petitioner to submit say withinthree days. It cannot be taken that even for every adjournmentminimum time period need be granted. This court findssubstance in the submissions of the learned advocate for the17 of 24 (18)wp5851.25respondents that though the petitioner herself left the VC room,her advocate was very much present and he was heard. So, onthe point of giving proper opportunity, this court is not inclinedto accept the submission of the petitioner. Coming to the nextpoint that when this court had remitted the matter back forissuance of notice only under Section 55-A is concerned and stillthe notice was issued even under Section 55-B, this court findsthat it is for the statutory authority to issue notice. Issuance ofnotice was the initiation of action. The court had directed toinitiate fresh proceeding. The authority was therefore within itsright even to issue notice under Section 55-B.19.The next question material to be considered is, as towhether the case was made out to take action or to pass anorder under Sections 55-A and 55-B. Section 55-B which isalready re-produced provides for disqualification for continuingas councillor or becoming councillor or removal as President orVice-President. It provides that if a person is found to be guiltyof misconduct in the discharge of his official duties or being18 of 24 (19)wp5851.25guilty of any disgraceful conduct, while holding the office of thePresident or Vide-President be removed. From the case of Ravi(Supra) it is seen that the Hon’ble Apex Court has held thatmere not conducting of meetings is not misconduct ordisgraceful conduct. Something more is required to show thatsuch misconduct or disgraceful conduct is an outcome ofintention of such a person to deliberately not holding meetings.It further to be seen as to whether he has gained something outof said conduct. In the present case even if allegations are seen,those are mainly that meetings were not held, resolutions werepassed by taking subjects having financial implication at the 11thhour. The petitioner has taken decision having financialimplications of more than Rs.2 lakhs which is held to beviolation. 20.From the conclusion of the statutory authority it isseen that there is violation of section 81(1) and Section 51. Thepetitioner failed to conduct the meeting within one month of theearlier meeting. It is further concluded that as per circular no19 of 24 (20)wp5851.25resolution could have been passed having financial implicationsof policy decision at 11th hours. 21.So far as applications for interventions are concernedit is seen that section 55-A and 55-B contemplates the reportfrom the learned Collector. The action to be is taken on the basisreport by the Collector. It nowhere prescribes that any otherperson should be given hearing. The councillors may havemoved the learned Collector & on the basis of suchrepresentation/complaints the learned Collector has takenaction. However, still there is nothing in the act to give any locusto such complainants before the authority. Even if report isaccepted and decision is taken either way no rights of thisapplicants are affected. It is also not the case that if any decisionis taken these applicants may benefit or there is legal injury tothe applicants. The submissions that even if legal injury is likelyto be caused to the applicants, they are necessary parties. Thiscourt is not convinced by this argument as no such legal injury isshown. The intervenors relied upon the judgment in the case of20 of 24 (21)wp5851.25Prashant Amrutrao Tayde Vs The Hon’ble Miniser forCooperation and Textile and ors 4 . This judgment in respect ofrights of the members of the co-operative societies. It is held thatevery member of the society have rights to see that persons notqualified are removed from the management. In the said case, itis held that, every member of the society has personal interest inthe society, considering the provisions of Section 73(EA) of theMCS Act. This Court does not find the said judgment is relevantfor the purpose of these applications as it cannot be said to bepersonal interest of the intervenor involved in the presentproceeding. Further argument that decision affects public atlarge. This court finds that there is no merit in the applicationsfor intervention. Hence the applications deserve to be dismissed.22.The Hon’ble Minister has considered the chargesNos. 3 and 4 which are proved. Both the charges shows thatthere is violation of section 81 & 51-A of the Act. Section 81makes provision as regards meeting of the council. However,there is nothing in section 81(1) giving power to the State42012 (2) BOM CR 71321 of 24 (22)wp5851.25Government to hold the President disqualified for violation ofSection 81(1). What it gives the procedure and the manner inwhich meetings are to be conducted, notices are to be issued,agenda is to be prepared etc. In such circumstances, this courtfinds it difficult to declare a person disqualified for not adheringto the said procedure. In the impugned judgment there is nodiscussion as to how the Minister came to a conclusion thatunder section 81 it is sufficient to hold the person disqualified.23.Sections 51 & 81 reads as under:-“Section 51-A Election of Vice-President(1)Every council shall have a Vice-President, who shall be elected bythe elected Councillors from amongst themselves in the special meetingconvened under the sub-section 2 of section 51.(2)The meeting to elect the Vice-President shall be presided over bythe Collector or such officer s the Collector may nominate specifically inthis behalf, but the Collector or such other officer shall have no right tovote.Provided that notwithstanding anything contained in this Act or the rulesmade thereunder, for regulating the procedure at meetings (including thequorum thereat) the PREsident or, as the case may be, the officer,presiding over such meeting may, for sufficient reasons to be recorded inwriting, refuse to adjourn such meeting.Section 81-Provisions in regard to meeting of Council.The following provisions shall be observed with respect to themeeting of a council:(1)For the disposal of general business, which shall be restricted tomatters relating to the powers, duties and functions of the council asspecified in this Act or any other law for the time being in force, and anywelcome address to a distinguished visitor, proposal for giving Manpatrato a distinguished person or resolution of condolence (wjhere all or any22 of 24 (23)wp5851.25these are duly proposed) an ordinary meeting shall be held once in everymonth. The first such meeting shall be held within one month, from thedate on which the meeting of the council under section 51 is held, andeach succeeding ordinary meeting shall be held within one month fromthe date on which the last preceding ordinary meeting is held. ThePresident may also call additional ordinary meetings as he deemsnecessary. It shall be the duty of the President to fix the dates for allordinary meetings and to call such meetings in time.(1A) If the President fails to call an ordinary meeting within the periodspecified in clause (1), the Chief Officer shall forthwith report such failureto the Collector. The Collector shall, within seven days from receipt of theChief Officer’s report or may, suo motu, call the ordinary meeting. Theagenda for such meeting shall be drawn up by the Collector, inconsultation with the Chief Officer. Provided that any such meeting called by the Collector shall not disturbthe sequence of the ordinary meeting as specified in clause (1) and thenext ordinary meeting shall be called by the President as if the lastpreceding meeting was held on the last permissible day of the periodspecified in clause (1).” 24.Section 51 speaks of election to the Vice-President. Italso provides for meeting to be held to elect the President by theCouncillors. Even this is not relevant for the purpose ofconsidering this matter. Section 72 is in respect of the powers ofthe committees and the council in respect of the financialsanction. Section 73 provides for subordination of thecommittees to council. None of sections prescribes that violationof section shall be considered as misconduct or disgracefulconduct on the part of the councillor or the President or Vice-23 of 24 (24)wp5851.25President. The charges which are taken to have been proved i.e.3 and 4 are in respect of the violation of the sections 81 and 72.As already discussed, this court does not find anything to givepower to the Government to disqualify the person on thatground. For the reasons above, this court finds that the Hon’bleMinister has committed mistake in holding the petitionerdisqualified by passing the impugned order. The petition,therefore allowed in terms of prayer clause-B.25.The Civil Application Nos. 5341/2025 and5342/2025 stand dismissed. [KISHORE C. SANT, J.]VishalK/wp5851.2524 of 24