Writ Petition No. 3709 of 2011

23rd April, 2012

Petitioner Counsel: Mr. P.C. MADKHOLKAR
Respondent Counsel: Mr. K.L. DHARMADHIKARI, Mr. A.M. GORDEY, Mr. G.G. MISHRA

Cases Cited:
Vijay Amba Das Diware & others Vs. Balkrishna Waman Dande & another, (2000) 4 SCC 126 [Para 13,25]
Vijay Narain Singh Vs. State of Bihar & others, (1984) 3 SCC 14 [Para 13,25]
Mohindr Singh Gill & another Vs. The Chief Eclection Commissioner, New Delhi & others, AIR 1978 SC 851 (1) [Para 13]
The Municipal Council, Malkapur and another Vs. The State of Maharashtra & another, AIR 1977 Bombay 244 [Para 15]

JUDGMENT

JUDGMENT :- Rule. Rule is made returnable forthwith. Respective Advocates waive service. Heard finally by consent of parties.

2. Petitioner herein was a Member and Chairman of Agricultural Produce Market Committee, Malkapur. He was served with a Show-cause-Notice dated 2nd June, 2010. The notice was issued to the petitioner under Section 45 of the Maharashtra Agricultural Produce Marketing (Development and Regulation) Act, 1963. Petitioner was called to show cause against removal towards misconduct and disqualification. Copy of notice is at Annexure-C [page 29 of the writ petition paper-book].

3. The grounds of removal disclosed in the Showcause- Notice are summarized as follows:-

[a] Respondent No.4 herein had challenged Resolution No. 6 passed in the meeting of the Committee on 10th December, 2007 under Sections 41A and 43 of the Act before the Director of Marketing.

[b] The petition was entertained and an order of status quo was passed. By said order, the construction work of a tin shed which was commenced by the Committee furtherance to Resolution No.6 was to be kept in abeyance.

[c] The petitioner, who was holding the reins of the Committee, did not hold hands, and disobeyed the order of status quo, by continuing the execution of work.

[d] Inspection was conducted through the Asstt. Registrar, Co-operative Societies, Malkapur. He found that forty-seven pits were dug and the work of plain cement concrete laying in the pits for raising of the columns was in process. He had reported the continuance of work by letter dated 1st June, 2010 [Annex.B, P. 28].

4. Petitioner herein filed reply to Show-cause-Notice and raised various points by averments incorporated in paragraph no. 16 thereof. Copy of reply commences at P.31 of the paper-book.

5. Paragraph No.16 of reply which is seen at page 35 of paper-book is quoted below for ready reference:-

16. It is submitted that the relevant provisions of Sec. 45 does not deal with mere defaults, but the expression used is persistent defaults. As stated above, such alleged defaults must be continue firmly or recurring for a long time. Therefore, even otherwise, singular default cannot be validly branded as a "persistent default."Therefore, the proceedings are not maintainable.

However, these submissions should not be construed as an admission on the part of answering respondent even of any singular default, much less persistent default."

[Quoted from page no. 35 of the Writ Petition paper-book].

6. The matter of disqualification and removal was considered by District Deputy Registrar, Co-operative Societies, who is also Additional Director [Marketing]. He sought consultation of the Federal Body, which was rendered by it, ostensibly conceding to the action.

7. Impugned order removing the petitioner was passed, copy whereof is at Annexure-A [P.22].

8. The Competent Authority has dealt with submissions and considered the aspect as to whether there existed a persistent default in performance of duty, and recorded the finding in affirmative.

9. The reasoning adopted by the Competent Authority is summarized as follows:-

[a] Chairman has obligation and duties under Rule 92 (1) (e) of the Maharashtra Agricultural Produce Marketing (Development and Regulation) Rules, 1967, to monitor the working and perform the duties under the Maharashtra Agricultural Produce Marketing (Development and Regulation) Act, 1963, and Rules, 1967.

[b] The order of status quo passed on 26th May, 2010 was served on the Committee immediately.

[c] The Chairmans plea that entire Committee should be considered responsible cannot be accepted, since, as a Chairman of the Committee, he was competent and was under a bounden duty to issue a direction to the contractor to stay the construction and comply with the order of status quo.

[d] The work was continued in spite of order of status quo, which was seen from the inspection conducted on 1st June, 2010. The default in obeying the order was continuous, persistent and obstinate.

[e] The Federal Body has also conceded to action being taken against the Chairman.

10. Petitioner was removed by the impugned order due to having incurred the disqualification. Said removal is challenged in this petition.

11. Submissions orally advanced by learned Adv. Mr. P.C. Madkholkar as well as in the Written Notes are based on etymology and connotation of the term "persistent default.

12. According to learned Adv. Mr. Madkholkar :-

[a] The word "persistence"connotes repetitive acts. Those have to be evident of habitualness in default.

[b] In the present case, it was a singular order of status quo. It was at the most disobeyed only once and, therefore, this single instance does not fit into the description of the term "persistent default."

[c] The vernacular word employed in the Show-cause-Notice as well as in the impugned order is "DURA-GRAHA". This word is explained in the Marathi-English Dictionary by Molesworth, which means "obstinate retention of an opinion".

[d] The word "DURA-GRAHA"does not have any semblance with "persistence"which means following inconsistent practice analogous to habit.

[e] The dictionary meaning of the word "persistent"and the meaning of the word "DURA-GRAHA" [nqjkxzg] are totally different in their meaning and purport.

[f] Impugned order is cryptic. Reasons disclosed therein are not eloquent and adequate, and cannot be supplanted by any aid lateron.

[g] The order being bad due to lack of reasons, deserves to be set aside.

[h] The order of status quo was ultimately vacated and, therefore, the default should not be viewed as grave.

13. Reliance is also placed by learned Adv. Mr. Madkholkar on following reported judgments:-

[1] Vijay Amba Das Diware & others Vs. Balkrishna Waman Dande & another [(2000) 4 SCC 126].

Background and proposition :

This judgment pertains to persistent default in payment of rent. The date to pay rent occurs periodicity on a day fixed for payment in each month. In every month, there is a need to follow the promise to pay the rent. Failure to perform the duty over a long spell of repetitive acts of omissions proves habit and makes the behaviour persistent in the form.

[2] Vijay Narain Singh Vs. State of Bihar & others [(1984) 3 SCC 14].

Background and proposition :

This case pertains to preventive detention. The acts of detenu, as defined in the law concerned, have to be persistent. To be persistent, the acts have to be committed with repetitiveness and habitualness in those abhorred and anti-social acts.

[3] Mohindr Singh Gill & another Vs. The Chief Eclection Commissioner, New Delhi & others [AIR 1978 SC 851 (1)].

Proposition :

Impugned order has to be eloquent as regards its reasons. The order has to stand on its own contents and reasons cannot be supplanted externally with aid, whatsoever.

14. In contrast, learned Senior Adv. Mr. A.M. Gordey has argued that:-

[a] The 'persistence'has to be seen as a question of fact.

[b] Petitioner had committed a default in obeying the order of status quo and had persisted in disobedience on each moment when he had occasion and duty to obey. Thus, the default is persistent.

[c] The scheme of enactment in which the disqualification is prescribed will have to be taken into account.

[d] That a similar language is used in Section 313 of the Maharashtra Municipalities Act, 1965. The term "persistent default"is used in Clause (1) (b) of the said Section 313. This provision has been construed by this Court to mean a "default which has persisted."

[e] Reasons disclosed in the order are adequate to sustain it in law.

[f] The fact that order of status quo was vacated, does not purge the obligation and duty to obey the order passed by competent authority.

15. Mr. Gordey has placed reliance on:-

[a] Third Edition of Encyclopedic Law Lexicon by C.K. Thakker [Justice]. The term "persistent default"is defined in it at page no. 3503, as follows:-

"Persistent default.- "Persistent default" in performance of duty is much more than a casual and inadvertent failure to perform one's duty. But is not necessary that a person should commit repeated acts of defaults before he can be held guilty of persistent default. The word "persist" suggests an attitude of mind. Even a single act of default may reveal a persistent attitude if the person sticks to his act or omission after he has been warned or his attention has somehow been drawn to it. U.P. Municipalities Act (2 of 1916), Section 30 referred. Chhotey Lal Vs. State of U.P. ILR (1960) 2 All 539 at 553."

[b] Persist in as defined in Nyay Vyawahar Kosh [page 140], as follows:-

lrr vkxzg /kj.ks-

[c] The Municipal Council, Malkapur and another Vs. The State of Maharashtra & another [AIR 1977 Bombay 244].

Ratio:-

"7. ............................... .......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 and that too in the performance of duties or in complying with the lawful directions of the authorities."

[Quoted from page no. 258 of the said reported Judgment].

16. Based on these treaties and judgment relied upon by learned Senior Adv. Mr. Gordey, the 'persistence'has to be seen from conclusion as to "attitude"behind the act or omission relating to which persistence is imputed.

17. According to respondent no.4 and the Asstt. Govt. Pleader, persistent default does not connote plurality of defaults. It connotes continuity of remaining in default even on account of a single act of default which is in itself recurrent or of continuity.

Analysis of Facts, Submissions and Reasons

18. On the facts of the case, it is seen that the status quo order was received by the Committee.

19. All that the petitioner was required to do is to order the contractor to suspend the work at the stage it was. Failure to stop the work and conniving at continuance constituted recurrent act of default on every movement.

20. In spite of receipt of order of status quo, the work was continued. It was within the domain of the petitioner to issue order/direction to stay the further construction work.

21. Any step taken forward for continuing the work and deliberate act of conniving at such continuance constitutes an act of concurrence for the continuance. Passiveness in staying the work of construction is liable to be viewed and construed as act of omission.

22. The connotation of "persistence in forming of habit"has a nexus with recurrent voluntary acts required to be done like a tenant has a duty to pay rent.

When it comes to acting, failure to act is a default, and persisting in performance to be done recurrently forms a habit and hence a persistent default. When it comes to forbearing, refraining from forbearance becomes persistent in the act of omitting to forbid or forbear.

23. The doctrine of "persistence in failure to pay rent"is a phenomenon unique in its character due to the periodicity inherently involved. It has no application in the case of present nature as a replica.

24. Persistence in criminality has the element of voluntary act or forbearance.

25. Both cases [(1) Vijay Diware, and (2) Vijay Narayansingh [supra]], relied upon by petitioner, therefore, do not serve to help the petitioner. Ratio of these judgments is rather unfavourable to the petitioner.

26. From any point of view, the plain reading and effect of order of status quo is that the petitioner has a legal and public duty as an obedient and law-abiding citizen.

27. Petitioner was a chairperson and principal office-bearer of a Local Self-Govt. Body. He was not supposed to take the law in own hands to regard the order of status quo as nullity or illegal and to defy the order of Competent statutory Authority acting in an unruly manner.

28. The petitioner should have himself and punctually acted to stop the work. He could have shirked the responsibility by calling a meeting or by issuing a Circular/Resolution of the Committee in which he has utterly failed. By all his failures, the petitioner has guaranteed persistence in the performance of duty to refrain.

29. Had it happened that no formal order of stay was issued by the petitioner, yet, as a matter of fact, the work was got suspended coincidentally. In such an eventuality, sheerly per chance, work may have got stopped and there was no occasion to suffer a blame of default and recurrence of such default. In such eventuality, the order of status quo would have got fructified automatically, and it would not have attracted any fault to the petitioner. This luck did not turn to favour the petitioner.

30. In the present case, the petitioner has elected to forbear from restraining the contractor from continuing with the work. He has connived at continuance of the work. In the result, the persistence with obstinateness, as understood by the competent authority, is proved writ large in the act of the petitioner.

31. The word "Obstinate" [nqjkxzg] which is employed and/or incorporated in the notice, which is severely criticized by the petitioner, does not have effect of rendering the "persistence in disobedience or negligence in performance of duty"either nullified or diluted.

The word "DURA-GRAHA"means obstinateness. Obstinateness is an adjective. It indicates that the persistence in failure to perform the duty was got further pejorated. It only suggests that the degree in failure had advanced from bad to worse and even further.

32. The dismissal of petition filed by the respondent no.4 and vacation of order of status quo in the larger interest of the Committee does not legalize the act of the persistent default committed by the petitioner. The disqualification of failure to perform duty and obey the orders and persistence in said default is incurred. It does not get wiped out and/or nullified due to vacation of order of status quo. The statute does not contemplate any eventuality of automatic withering of the effect of disqualification once incurred.

33. This Court, therefore, reaches a conclusion that the order of removal from the membership and consequently from the post of Chairman against the petitioner which is challenged in this petition does not suffer from the defect of any infirmity either on the points of principles of natural justice, lack of adequate reasons, or on the ground of non-compliance of any statutory provisions of law, whatsoever.

34. The order impugned does not tend to do justice, whatsoever, and cannot be interfered.

35. Therefore, Rule is discharged. Interim orders stand vacated. In the circumstances, parties are ordered to bear own costs.

Ordered accordingly.