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2009 DAILYLAW 1799 (BOM)

Vasant Appaso Mali v. Collector Kolhapur

2009-06-26

Nishita Mhatre

body2009
P.C.: SMT.NISHITA MHATRE, J. 1. The petitioner is aggrieved by the orders passed by the Collector, Kolhapur, while hearing his appeal in respect of his disqualification as a Municipal Councilor. Respondent No.3 had complained against the petitioner contending that he had built an unauthorized construction and, therefore, was disqualified under Section 44(1)(e). The council had produced the record indicating that the petitioner’s structure was unauthorized. The petitioner sought permission from the Collector to cross-examine the witness or the person who had prepared the report. That application has been disallowed by the Collector. He has disallowed the application made by the petitioner to lead his own evidence as well. 2. The learned advocate appearing for the petitioner contends that under Section 44 an enquiry is to be conducted in a manner when the rules of natural justice must be complied with before a person is disqualified to hold the office of a Municipal Council. He submits that the orders of the 1 st respondent i.e. the Collector smack of arbitrariness. He submits further that without permitting the petitioner to cross-examine the person who has prepared the report indicating that the petitioner’s structure was unauthorized, he has directed the petitioner to proceed in the matter. Permission has also been refused to the petitioner to lead evidence in the matter. The learned advocate has relied on the judgment of a learned Single Judge of this Court in the case of Suvarna Prakash Patil v/s Anil Hindurao Power & ors., reported in 2003 (Suppl.) Bom.C.R. 19, in support of his contention that in the matters of disqualification it is necessary to follow the principles of natural justice and by adopting a procedure which affords a reasonable opportunity of being heard to the incumbent. 3. Mr. Patil, learned advocate appearing for the respondent No.3 submits that the proceedings under Section 44 are summary in nature and in any event, the person against whom a disqualification is sought, has merely to show the record indicating that his structure is unauthorized. According to the learned advocate, the petitioner in this case has not produced a single document to establish the validity of the structure and no purpose would be served if he is permitted to cross-examine the person who prepared the report. According to the learned advocate, the petitioner in this case has not produced a single document to establish the validity of the structure and no purpose would be served if he is permitted to cross-examine the person who prepared the report. He further submits that, all that the petitioner is required to do in the present case is to produce any document indicating the validity of the structure. He then draws my attention to the judgment in the case Union of India v/s Tulsiram Patel , reported in (1985) 3 SCC 398, to submit that unless the law provides for a hearing to be given in a particular manner, one cannot read the principles of natural justice into every statute and thereby expect that in all cases the delinquent must be given an opportunity to cross-examine the witness or to lead his own evidence, whether oral or documentary. He then relies on the judgment in the case of M.P. Industries Ltd. v/s Union of India , reported in AIR 1966 SC 671 , while reiterating that a quasi judicial tribunal should not take any decision adverse to a party without giving him an effective opportunity of meeting any allegations against him. The Court has further observed that it is not in every case that a personal hearing must be afforded; such an opportunity can be afforded by permitting a written representation. 4. The disqualification of an elected representative of the people attracts civil consequences. It is trite that, any action against a person which would attract civil consequences adverse to his interest in the society, must be dealt with by an enquiry in which the rules of natural justice have been complied with. In the present case, the Collector is expected to give the Councillor a reasonable opportunity of being heard. Such an opportunity, in my opinion, would include the cross-examination of witnesses and the leading of evidence at an enquiry held by the Collector. Adopting this course in such an enquiry would provide an opportunity to the person proposed to be disqualified to establish his case. 5. Clearly, the Collector in the present case has failed to do this. Merely because the report has been submitted by the Municipal Council, it would not necessarily mean that the report must be accepted. Adopting this course in such an enquiry would provide an opportunity to the person proposed to be disqualified to establish his case. 5. Clearly, the Collector in the present case has failed to do this. Merely because the report has been submitted by the Municipal Council, it would not necessarily mean that the report must be accepted. It would be open for the petitioner to demonstrate while cross-examining the witness for the Council that the report is incorrect and that the structure owned by him is not unauthorized. If the submission of the learned counsel for the respondent No.3 that, all that the petitioner is required to do is to produce documents indicating that the structure is authorized is accepted, it could lead to serious consequences. One cannot lose sight of the fact that a councillor who is holding office could ensure that he secures a letter showing that the structure is authorized. If such a letter is to be accepted as the gospel truth, it would lead to serious consequences. Therefore, a safeguard has been provided by the legislature that a reasonable opportunity must be given to the person to be disqualified of proving that structure is not unauthorized. 6. In the circumstances, the impugned orders are set aside. The Collector shall permit the petitioner to cross-examine the witnesses as well as to examine his own witnesses. 7. The enquiry conducted by the Collector shall be completed as expeditiously as possible and in any case within three months from today. 8. The matter has now been fixed on 30.6.2009 when parties should be ready to proceed with the matter. 9. Writ petition disposed of accordingly.