Writ Petition No. 247 of 2014,Writ Petition No. 332 of 2014,Writ Petition No. 334 of 2014

4th April, 2014

Petitioner Counsel: Mr. J.T. GILDA
Respondent Counsel: Ms. N.P. MEHTA, Mr. A.B. MOON

Cases Cited:
Manikchand Hiralal Kasliwal Vs. Arvind Vithalrao Sawalapurkar , 1994 Mh.L.J. 1623 [Para 3,18]
Ranjit Thakur Vs. Union of India and others, AIR 1987 SC 2386 [Para 5,17]
Kedar Shashikant Deshpande Vs. Bhor Municipal Council and others, 2011(1) ALL MR 934 (S.C.) [Para 6]

JUDGMENT

B. P. DHARMADHIKARI, J. :- Challenge in all these 3 Writ Petitions by the elected Municipal Councilors of Municipal Council, Gondia is identical. Three petitioners in these three petitions seek a direction to respondent no.2 Divisional Commissioner and respondent no.3 Collector to decide applications at Annexures-H and I, filed by them seeking transfer of matters against them from respondent no.4 Additional Collector to Collector, Gondia or any other Authority in Gondia District on account of loss of faith. Other prayer is for a writ to transfer those proceedings and till then to stay further proceedings in Disqualification Petition No.45/2012 (New No.36/9/1213).

2. This Court has while issuing notice in the matter on 17.01.2014 heard the Counsel for caveator (Respondent no.5) and stayed the declaration of any order by respondent no.4 Additional Collector. On 12.03.2014 this Court permitted respondent no.4 to pronounce his orders with a direction that said order shall not be given effect to till 18.03.2014. Considering the controversy involved in the matters, by consent of parties, Rule issued was made returnable forthwith on 18.03.2014 and parties were heard finally and writ petitions have been closed for judgment.

3. Shri J.T. Gilda, learned Counsel appearing on behalf of the petitioners has stated that the transfer of matter from respondent no.3 Collector to respondent no.4 Additional Collector is itself bad in law, as under the provisions of Maharashtra Local Authorities Members Disqualification Act, 1986 (hereinafter referred to as "the 1986 Act" for short), Collector is the recognized and only competent Authority. He has invited attention to orders / communication by which the Collector transferred the matter to Additional Collector pointing out that it does not have any outward number or date also. He contends that this fact assumes importance because of allegations of malafides and bias by petitioners against respondent no.4. Without prejudice to these contentions, he invites attention to provisions of Section 13[3] of the Maharashtra Land Revenue Code, 1966 to urge that the said provision, in the background of 1986 Act, can at the most to be viewed as a general provision and in absence of any express notification by the State Government in favour of respondent no.4, respondent no.4 cannot entertain and deal with the disqualification proceedings. Support is being sought from a judgment in case of Manikchand Hiralal Kasliwal .vrs. Arvind Vithalrao Sawalapurkar reported at 1994 Mh.L.J. 1623, to buttress the contention.

4. He further submits that respondent no.4 unnecessarily started pushing the proceedings and expressed that there was no question of recording any evidence or allowing any cross-examination. Exhibiting undue haste, he fixed the proceedings on day to day basis. Charges were drawn on unscheduled date and the matters adjourned to 03.12.2012 was also pre-poned. On some occassions when important business was to be transacted by the General Body or by the Committee of a Municipal Council, on very same day, he fixed the disqualification proceedings so as to deny the petitioners participation either in important policy decisions of the Municipal Council or then in the disqualification proceedings. Even during recording of evidence, relevant questions were not permitted to be put, and answers were not rightly recorded. When petitioners attempted to file a Pursis lodging their protest, their Pursis was also not accepted. Shri Gilda, learned Counsel for petitioner submits that the petitioners have specifically pleaded bias and hostile or partial attitude in their petition, and said allegations have remained un-answered by the respondent no.4. Respondent no.4 should have filed his personal affidavit dealing with these allegations, and though he has been joined as a party in personal capacity, he chose not to respond to these allegations. Swearing of affidavit by the said Additional Collector in support of the reply filed by the respondent no.4 in his official capacity is not sufficient and hence, this Court should draw adverse inference.

5. He relies upon judgment in case of Ranjit Thakur .vrs. Union of India and others reported at AIR 1987 SC 2386, particularly paragraph nos. 6 and 7 to urge that submission by the said Officer that he is acting impartially and fairly or then a finding by this Court that he is acting independently, is not sufficient in this situation. Reasonable apprehension or possibility of denial of justice felt by the petitioners is sufficient in the eyes of law to order transfer. He therefore, prays for allowing the writ petitions.

6. Ms. Mehta, learned A.G.P. appearing on behalf of respondent nos. 1 to 4 is strongly opposing the petitions. She states that in reply-affidavit filed by respondent no.4 Additional Collector, all allegations have been properly dealt with and the alleged mode and manner of conducting the proceedings as pleaded, is expressly denied. It is submitted that the petitioners have participated in the proceedings before the Additional Collector without any objection, and when they found that the proceedings are coming to an end, in an attempt to delay the same, they sought transfer and raised frivolous objections. Our attention has been drawn to the developments as recorded in the order sheet in this respect. She also relies upon a judgment of Hon'ble Apex Court in case of Kedar Shashikant Deshpande .vrs. Bhor Municipal Council and others reported at 2011 (1) ALL MR 934 (SC) to submit that issue of absence of jurisdiction in Additional Collector is a question of fact and hence it must be allowed to be decided by the competent Authorities in the light of material made available on record.

7. Without prejudice, our attention is also drawn to the fact that absence of jurisdiction in Additional Collector has been adjudicated upon by the respondent no.4 on 13.12.2013, while passing preliminary orders. The State Government has issued notifications authorizing the Additional Collector on 24.03.1967 and thereafter on 22.07.1986. Because of these notifications, objection of the petitioners has been rejected. Reliance upon circular dated 29.03.2012 by petitioners is argued to be mis-conceived.

8. Shri Moon, learned Counsel appearing on behalf of respondent no.5 has adopted the arguments of learned A.G.P. He points out that the disqualification proceedings have been filed in the year 2012, and the 1986 Act contemplates its adjudication within a period of 6 months. Petitioners, with a view to delay those proceedings, have filed the present petitions. Their preliminary objection has been recorded on 08.12.2012 and petitioners filed a Pursis on 27.11.2013 closing their case and to treat their reply dated 01.12.2012 and 31.10.2013 as final arguments. No objection was raised at that juncture to alleged pre- ponement of date. He submits that after this closure, effort was made by the petitioners to reopen the proceedings and it is with this object, that they have filed applications at Annexures-H and I before the respondent no.2 Divisional Commissioner and respondent no.3 Collector. He therefore, prays for dismissal of Writ Petitions and vacation of interim orders.

9. Ms. Mehta, learned A.G.P. and Shri Moon, learned Counsel for respective respondents submit that respondent no.4 has already passed necessary final orders, however, those orders have not been given effect to because of directions of this Hon'ble Court dated 12.03.2014.

10. Shri Gilda, learned Counsel for petitioners in reply arguments, reiterates the story already argued by him. He also invites attention to order-sheets to show that though it mentions that on 15.10.2013 charges were not framed and matter was adjourned for framing of charges on 10.10.2013 to 14.10.2013 and thereafter to 31.10.2013, it is shown that charges have been framed on 15.10.2013. He further states that on 22.11.2013 the matter was adjourned to 03.12.2013 and it was preponed to 26.11.2013. Thus, there is sufficient ground to infer hostility and bias.

11. Order sheets produced before this Court and admitted by both the parties show that on 24.12.2012, matter was before the Collector, and then it was adjourned to 09.01.2013. On 09.01.2013 the Collector adjourned the matter to 27.06.2013. On 27.06.2013, the matter came up before the Additional Collector, on that date nobody appeared and he adjourned the matter to 08.07.2013. Thereafter the matter has been taken up by the Additional Collector on various dates and petitioners never raised any objection or lodged any protest against the transfer order. Fact that the matter has been transferred is not in dispute. Copy of transfer order produced on record is signed by the Collector, it does not carry any outward number and it only records "April, 2013" as its date. Thus no specific day or date of the month of April, is shown in the order. But, then in above background omission to mention outward number or date by itself cannot vitiate the otherwise legal and valid order of transfer issued by the respondent no.3.

12. On 08.10.2013 nobody appeared for parties and the Additional Collector adjourned the matter to 10.10.2013. On that date again nobody appeared for parties and matter was adjourned to 14.10.2013. Even on 14.10.2013 none was present for parties and matter came to be adjourned to 31.10.2013. On 31.10.2013, petitioners with their Counsel have filed reply to the charges. Charges as framed i.e. Articles of Charges show that the same have been forwarded to the petitioners vide note dated 15.10.2013, calling upon them to remain present on 31.10.2013. The Collector, Gondia had framed Articles of Charges on 12.12.2012 and the Additional Collector, Gondia has completed that exercise on 15.10.2013. Petitioners did not raise any objection about framing of charge by the Additional Collector on an un-scheduled date. Similarly, mo prejudice is suffered by them. Hence, this contention is again misconceived.

13. Order sheets show that on 22.11.2013 parties were present with their Advocates and Additional Collector was not available, matter was therefore, adjourned for evidence. The date initially mentioned was 03.12.2013, however, it has been circled and below it date 26.11.2013 has been mentioned. The date has been noted by both the Counsel on 22.11.2013. On 26.11.2013, respondent no.5 filed affidavit of examination-in-chief and case came to be adjourned for cross-examination to 27.11.2013. The present petitioners have also appeared on 26.11.2013 and noted date for cross-examination. On 27.11.2013, respectively respondent no.5 closed their evidence and matter came to be adjourned for recording evidence of petitioners and for cross examination of respondent no.5 to 30.11.2013. On very same date, later on the petitioners filed a Pursis stating that they did not want to advance further arguments in the case. The Additional Collector, therefore, adjourned the matter for hearing respondent no.5 to 30.11.2013. Pursis filed on 27.11.2013 by petitioners is signed by their Counsel. It means that on that date when case was fixed for final arguments, requesting to treat reply dated 01.12.2012 and 31.10.2013 as final arguments, Counsel for respondent (petitioners here-in) informed the Additional Collector that petitioners did not wish to submit more arguments. Earlier date on this Pursis appearing in print out is 01.11.2013, it has been en-circled and below it, date 27.11.2013 has been put by hand. These events therefore show grievance about pre-ponement of date from 03.12.2013 to 26.11.2013 being misconceived and by way of an afterthought. We note that on 30.11.2013, petitioners filed an application to recall the order dated 27.11.2013 and sought permission to cross-examine and to ad-duce evidence which also was granted.

14. On 06.12.2013, petitioners filed an application and sought time and matter was thus adjourned for cross-examination to 09.12.2013. Again on 09.12.2013, petitioners sought adjournment. On 11.12.2013 petitioners sought amendment to their written statement. Additional Collector adjourned the matter to 12.12.2013 for reply of respondent no.5 to said application. On 12.12.2013, respondent no.5 filed his reply to the amendment application. The Additional Collector then heard both the sides and granted leave to amend. Matter was adjourned to 13.12.2013. On 13.12.2013, petitioners filed one application seeking dismissal of disqualification proceedings for want of jurisdiction and other application for adjournment to challenge the orders. The Additional Collector rejected both the applications. He adjourned the matter for cross examination of respondent no.5 and for evidence to 16.12.2013. On 16.12.2013, on request of both the sides the matter was adjourned for cross examination to 17.12.2013. On 17.12.2013 petitioners cross-examined respondent no.5 and matter was adjourned to 19.12.2013 for further evidence. On 19.12.2013 respondent no.5 closed its side. Petitioner sought adjournment on the ground of ill-health of their Advocate. The matter was then adjourned to 20.12.2013. On 20.12.2013 petitioners filed an application seeking leave to produce proceedings of the meeting and for grant of adjournment. Matter came to be adjourned to 21.12.2013. On 21.12.2013, documents were taken on record and Additional Collector granted last chance to petitioners to adduce their evidence. Matter was adjourned to 26.12.2013. On 26.12.2013, Additional Collector was on tour and case came to be adjourned to 30.12.2013. On 30.12.2013, petitioners filed reply to the application seeking production of documents. Additional Collector pointed out that said application was already decided, he noted that petitioners filed affidavit and matter was adjourned for their cross-examination to 31.12.2013. On 31.12.2013, petitioners lead evidence and cross-examined. The matter was adjourned to 01.01.2014.

15. It is not necessary for this Court to refer to developments thereafter in as much as above order sheets show that the Additional Collector has given all opportunities to the petitioners. Petitioners have in paragraph no.12 at page no.8 of their petition, pointed out that the election for the post of Vice-President of Municipal Council, Gondia was fixed on 01.11.2013, 22.11.2013 and meeting of the Municipal Council on 07.01.2014 for Subject Committees, still respondent 4 fixed the matters on same dates for leading evidence. However, petitioners have not pointed out any prejudice in this respect. In paragraph no.11 though they urge that matter was taken on day to day basis, again no prejudice has been pointed out. In paragraph no.12 at page no.7 of the petition, petitioner urge that during cross examination answers and statements were not recorded verbatim and on few occasions, counsel for respondent no.5 dictated the answers. Petitioners objected to it, but their objection was not recorded in the proceedings, and they were not permitted to file even a Pursis. They state that on number of times, during cross examination and recording of evidence, the Additional Collector, Gondia disclosed his mind by stating that case is based on documents and petitioners are liable to be disqualified. Though petitioners urge that this has not been denied by the respondents, we find their submission erroneous. In the reply affidavi,t from paragraph no.10 onwards these allegations have been denied. In paragraph no.11, respondent no.4 has stated that he recorded each and every question, answer and suggestion. There was no objection raised by the counsel form petitioners and no Pursis was filed. Respondent no.4 never disclosed his mind about disqualification of petitioners. He has in paragraph no.13 also given necessary details.

16. If petitioners wanted to show any wrong conduct by respondent no.4, while recording evidence, they could have tendered a Pursis or an application, then and there to the Additional Collector. If the Additional Collector did not accept any such Pursis or application, and did not take note of the objection raised by them, the application could have been tendered in the inward section on very same date or shortly thereafter. In any case, the same could have been forwarded by R.P.A.D. not only to the Additional Collector, but, also to other side and superior Authorities like respondent no.2 and 3. Answers incorrectly recorded, correct answers and prejudice caused should have been brought on record through such Pursis or application. There is no such attempt. Even in pleadings before this Court, any such answer given in favour of the petitioners, which has been wrongly recorded, is not disclosed. Only grievance is about applications dated 15.01.2014 at Annexures-H and I. These applications are addressed to the Divisional Commissioner and Collector. Applications specifically state that the Additional Collector has uttered "mre me iktnI jan @aloge" and "mre sa'p ko la#I marne se Kya hoga". These allegations are coming up at the fag end of the trial. Even after 06.01.2014 the matter was taken up by the Collector on 07.01.2014, 08.01.2014, 13.01.2014 and last order sheet produced before this Court shows that the matter was adjourned on 16.01.2014. On 17.01.2014, this Court has passed the order restraining respondent no.4 from pronouncing any order till next date.

17. Perusal of judgment in case of Ranjit Thakur .vrs. Union of India and others (supra), particularly paragraph nos. 5 and 6 reveal the well settled legal position that questions to be looked into in such matters is not whether infact the Additional Collector was or was not biased ? The real likelihood of bias is a test and while deciding it Court does not look into the mind of judge himself. Courts do not look to see if there was a real likelihood, that such Presiding Officer would or did infact favour one side at the expense of other. Courts look at the impression which would be given to the other people. Test applied by the presiding officer whether "do I feel prejudice" is a wrong test and wrong Principle. Reason cannot control the sub-conscious, influence of feeling of which it is unaware when there is a ground of believing that such unconscious feeling may operate in the ultimate judgment or may not unfairly lead others to believe that they are operating, Judges rescure themselves. We find that facts noted by us above do not even permit petitioners to argue the case of any such bias or hostile treatment. Apprehension allegedly entertained by them is a story created by way of an after thought and only to delay the proceedings. We note that on 30.11.2013, petitioners filed an application to recall the order dated 27.11.2013 and sought permission to cross-examine and to adduce evidence. This is in the back-ground a Pursis filed by them on 27.11.2013 is already noted by us supra. They have urged that due to ill-advise and mistake of counsel that Pursis came to be filed and they should not be made to suffer for such mistake on the part of their Advocate. We have also noted that the Additional Collector thereafter has granted them requisite opportunity. Thus, grievance of bias or victimization or even unfair treatment is totally erroneous. If petitioners demonstrate any reasonable ground for inferring a bias or hostile attitude, the law expounded by the Hon. Apex Court would have become relevant here.

18. This brings us to the contention that respondent no.4 does not possess requisite power. Petitioners have relied upon a judgment in case of Manikchand Hiralal Kasliwal .vrs. Arvind Vithalrao Sawalapurkar (supra). There the Division Bench has considered the provisions of Section 13[3] of the Maharashtra Land Revenue Code, 1966 along with the provisions of C.P. and Berar Letting of Premises and Rent Control Order, 1949 and 1946 Act under which that order came to be framed. Section 7 of this 1946 Act expressly bars jurisdiction of Civil Court and Revenue Officers. Revenue Officers not empowered under any "order" ie subordinate legislation made or deemed to be made under Section 2 of the said Act, does not have jurisdiction by way of appeal or revision, over the orders passed by the Rent Controller. Section 6 of the 1946 Act expressly stipulates that any "order" made under Section 2 of the 1946 Act shall have effect notwithstanding anything inconsistent therewith, in any other enactment other than 1946 Act or any enactment having effect by virtue of any such other enactment. These provisions therefore, specifically exclude Maharashtra Land Revenue Code and hence, Section 13[3] thereof. Question before the Division Bench was - Whether because of provisions of Section 13[3] of the Maharashtra Land Revenue Code, the Additional Collector could have exercised appellate jurisdiction under Clause 21 of the Rent Control Order, 1949 ? The Division Bench has held that there has to be a specific notification issued under Rent Control Order enabling that officer to decide the appeals or revision. In its absence, the Additional Collector was found incompetent to decide the appeals or revision. General notification dated 22.07.1986 issued under the provisions of Section 13[3] of the Maharashtra Land Revenue Code was found insufficient and Division Bench pointed out that the Additional Collector needed to be empowered under Clause 21A[1] of the Rent Control Order.

19. No such provisions of 1986 Act requiring this Court to discard Section 13[3] of the Maharashtra Land Revenue Code has been pointed out. In reply affidavit before this Court, respondent no.4 has relied upon said notification dated 22.07.1986 along with earlier notification dated 24.03.1967, both issued under Section 13[3] of the Maharashtra Land Revenue Code, 1966. We may also note here that on 13.12.2013, respondent no.4 has passed one order holding that because of said notifications, he is empowered to take cognizance of disqualification proceedings under 1986 Act, also. This order passed on 13.12.2013 has not been questioned before us.

20. Shri Gilda, learned counsel for petitioners however has relied upon a circular dated 29.03.2012. That circular does not mention provisions of Section 13[3] of the Maharashtra Land Revenue Code any where. It only re-distributes administrative responsibilities between the Collector and Additional Collector. Subject of "Municipal Administration" as such, is placed under Collector vide subject no.28, however, "appeals under Maharashtra Land Revenue Code and other enactments" are assigned to the Additional Collector. It is therefore, obvious that even this circular does not advance the case of petitioners.

21. In this situation, we find that the petitioners have failed to make out any case for issuing directions to respondent nos. 2 and 3 to decide its application at Annexures-H and I or to transfer of proceedings from respondent no.4 to respondent no.3 or any other equivalent Authority. We find entire challenge misconceived. Petitions are accordingly dismissed. Rule is hereby discharged. No costs. Needless to mention that the interim orders stand vacated.

22. At this stage Shri Gilda, learned Counsel for petitioners seek continuation of interim order for a period of 4 weeks to approach the Hon'ble Apex Court. Request is being opposed by learned A.G.P. as also by Shri Moon, learned counsel appearing for respective respondents.

23. We are not inclined to grant such request, hence, request is rejected.

Petition dismissed.