JAGAT NARAYAN, J. - (1.) THIS is a petition under Art. 226 of the Constitution by nine members of Deedwana Municipal Board challenging the validity of an order of the State Government superseding the Board under sec. 295(l)(b) of the Rajasthan Municipalities Act 1959.
(2.) THE last general election to the Board was held on 30.12.63. Nine out of the 14 members who were elected or co-opted belong to the Jan Sangh Party. THEy are the petitioners. Out of them Shri Sri Nivas Moth petitioner No. 1 was elected as chairman and Shri Hari Shankar petitioner No. 2 was elected as Vice-Chairman and the Board started functioning from 31.1.64. The case of (he petitioners is that members of the Congress party who were defeated in the elections succeeded in persuading the ruling Congress party in the State to oust the Deedwana Municipal Board because it had a majority of Jan Sangh members and the Minister for Local-self Government Department tried to create ground for getting rid of the Board. First a charge sheet was served on the Chairman on 4.3.65 under sec. 63(1)(d) read with sec. 65(10) to which he submitted a reply on 20.3.65. Then a charge sheet dated 30.6.65 (annexure 4) was served on the Board asking it to show cause by 15.7.65 why it should not be superseded. It runs as follows: - "Whereas on an enquiry made by the Assistant Director of Local Bodies, Rajasthan, Jaipur it has come to the notice of the Government that the Municipal Board, Deedwana is not competent to perform the duties imposed on it under the Rajasthan Municipalities Act, 1959. and has exceeded and abused its powers relating to the following matters, namely: - (1) Abolition of cycle tax without prior approval of the government and thereby causing a financial loss to the Board. (2) Sale of land recorded as Gair Mumkin, Cabristan which does not at all come within the definition of Nazul land and the Municipal Board was not competent to dispose of any plots. (3) Sale of land to Shri Mohan Lal Darji in contravention of Government orders dated 8.3.61 and the execution of the two sale deeds which are not according to the terms and conditions of the Government on which the Municipal Board is authorised to alienate such Nazul lands. (4) Compounding of unauthorised constructions in contravention of the Rajasthan Municipalities (Compounding of Offiences) Rules under Board's resolution dated 19 4-64. (5) Misuse of Municipal funds by appointing counsels at Nagaur, Merta and Jodhpur without any sufficient, litigation work load relating to the Municipal Board. (6) Delegation of power to committees constituted by the Board retrospectively in contravention of the provisions of the Rajasthan Municipalities Act, 1959. I am therefore directed to serve this notice upon the Chairman and all other members of the Municipal Board Deedwana under sec. 295 of the Rajasthan Municipalities Act 1959 to show cause as to why the Board should not be superseded. A written reply in this respect should be submitted to the Government on or before 15th July, 1965 explaining all that the Board has to say regarding the allegations mentioned above. It may also kindly be indicated whether the Board desires to be heard." The Board requested the Government to supply it with a copy of the report of the Assistant Director of Local Bodies referred to in the charge sheet but it was not supplied. The Assistant Director had taken away with him the records relating to matters which were the subject of the charges. These records were neither made available to the Board before it was called upon to reply to the charges, nor was the Chairman allowed to inspect them even at the hearing which the Deputy Minister gave him at Jaipur. The Chairman protested against the withholding of the record by filing an application before the Deputy Minister at the hearing on 9.9.65 (annexure 6). The Chairman and members of the Board had complained to the Minister on 16.1.65 (annexure 7) that because the Board had a majority of Jan Sangh Members the Government and its officers were putting various obstacles in its way instead of being helpful, but no action was taken on this complaint. On the contrary under a notification published in the Rajasthan Gazette Extraordinary dated 19.10.65 the Board was superseded. This notification runs as follows (annexure 8) - "Local Self-Government Department ORDER Jaipur October 19, 1965. No. F.l(33) LSG/B/65. - Whereas the State Government after affording a reasonable opportunity of submitting an explanation and of being heard, as required by the proviso to clause (b) of sub-sec. (() of sec. 295 of the Rajasthan Municipalities Act, 1959 (Rajasthan Act 38 of 1959) and after considering the explanation and hearing the Municipal Board, Deedwana, is satisfied for the reasons specified below that the said Municipal Board, Deedwana has exceeded and abused its powers and has persistently made defaults in the performance of the duties imposed on it, by or under the Rajasthan Municipalities Act, 1959 (Rajasthan Act No. 38 of 1959): - REASONS 1. That the Municipal Board Deedwana (hereinafter called the Board) abolished the cycle tax without Government sanction and after the proposal being rejected by the Government disobeyed the Government Orders and also caused loss to the Municipal Fund. 2. That the Board sold the land recorded as Gair Mumkin Cabristan which was not a Nazool land in excess of its powers. 3. That the Board sold land to one Shri Mohanlal Darjee in contravention of Government orders and thereby abused and exceeded its powers and caused financial loss to the Board. 4. That the Board compounded the cases under sec. 170 of the Rajasthan Municipalities Act 1959 in contravention of the Rajasthan Municipalities (Compounding of Offences) Rules, 1960 and thus violated the provisions of said rules. That the Board appointed Vakils out of the Municipal Fund for contesting election peti- tion of the members, which was in their individual capacity and thus misused the Municipal fund. That the Board delegated its powers to committees retrospectively in contravention of the Rajasthan Municipalities Act, 1959. Now therefore in exercise of the powers conferred by sub-sec. (1) of section 295 read with sub-sec. (5) of the said section, the State Government hereby : - (1) declares the Municipal Board Deedwana to be incompetent and in default and to have exceeded and abused its power ? (2) Supersedes the said Municipal Board Deedwana with immediate effect, for a period of six months or until a newly constituted Board takes over which ever is earlier, and (iii) appoints the Tehsildar Deedwana as administrator to exercise and perform the powers and duties of the said Board under the said Act in addition to his own duties till further orders. By order of the Governor B.L. Mehta Deputy Secretary to the Government." 5. The case of the petitioners is that the charges brought against the Board are without substance and the action taken by the Government in superseding the Board is unjustified, illegal and mala fide. 6. The petition was contested by the State. It was denied that the Government was actuated by ulterior motive in superseding the Board. It was also denied that reasonable opportunity to furnish an explanation was not given. It was asserted that the charges brought against the Board were proved. Some fresh allegations not incorporated in the charges served on the Board were also made. The Minister for Local Self-Government also filed an affidavit denying the mala fides. I have heard the learned counsel for the parties at length and have perused the material on record. I may say at once that the only allegations which are relevant for the purposes of the present writ petition are those contained in the charge sheet dated 30-6 65 (annexure 4) which was served on the Board under sec. 295 and it is not open to the State Government to justify the supersession of the Board on the basis of any new allegation. It was not disputed before me that a copy of the report of the Assistant Director Local Bodies was not supplied to the Board. All that the Board was called upon to answer were the allegations contained in the charge sheet dated 30.6.65. It is well settled that if a charge is incapable of being met on account of being vague, it has to be ignored. Further a finding which is not covered by any charge is also of no effect. In Rama Nand vs. Divisional Mechanical Engineer, N. Rly. Bikaner (1) it was held - "Where the charges are not specific but general and vague, they throw the person completely and, if not completely, very largely, at the mercy of his accusers, and afford an almost limitless opportunity for those minded to run down a Government servant and to say what they like against him without any check whatsoever. A charge in order to be proper and in order that it may give a reasonable opportunity for defence must not be vague or general but must be clear cut and specific. The failure to observe this fundamental requirement is bound to make the inquiry a snare and a weapon of oppression instead of a safeguard for justice and fair play. In Kundal Lal vs. State of Pepsu (2) it was held - "The contents of the notice intimating the reasons of the proposed action against the president under secs. 16 and 22 should be such as to enable him effectively to meet the charges levelled against him. This can be possible only if the notice gives every possible detail of all material facts on which the charges are based and makes him understand what he is to reply and explain. He should be told in the clearest terms and with full particulars as to what his faults are." The next question which arises for determination is whether the Board can be superseded on the subjective satisfaction of the State Government that the reasons mentioned in sec. 295 exist or whether in exercising its power under the section the State Government is required to act judicially and to record objective findings Sec. 295(i) runs as follows - "Sec. 295. Power of Government to dissolve or supersede board in case of incompetency - (1) If at any time the State Government is satisfied that the board is not competent to perform, or persistently makes default in the performance of, the duties imposed on it by or under this act or otherwise by law or has exceeded or abused its powers the State Government may by an order published along with the reasons thereof in the official Gazette, declare, the board to be incompetent or in default or to have exceeded or abused its powers as the case may be and may - (a) dissolve such board as from a date to be specified in the order of dissolution, or (b) supersede it for a period, not exceeding six months, to be specified in the order of supersession. Provided that no action shall be taken under this sub-section unless the board has been afforded a reasonable opportunity of submitting an explanation and of being heard if the board so desires: (a) Provided further that an order under cl. (a) shall not be passed - (i) unless the State Government has drawn up a statement setting out distinctly the charges against the board and sent the same for inquiry in the prescribed manner and findings to a tribunal consisting of a chairman and not less than two members constituted in the prescribed manner, or (ii) otherwise than in conformity with such findings." The effect of an order of supersession is extremely drastic and puts an end to the very existence of the Municipal Board. It casts a slur on the members of the Board and is a penal action against them. In view of the grave consequences that ensue supersession the legislature made provision for issuing of a notice to the Board, affording it a reasonable opportunity of submitting an explanation and of being heard. The nature of the action under sec. 295 and the procedure provided for taking it leave no doubt in my mind that the State Government is required to act quasi-judicially superseding a board. Its findings must be objective and not merely subjective and are open to judicial review. The provisions of sec.57 of C.P. and Berar Municipalities Act, 1922 came up for consideration before a Full Bench of the Madhya Pradesh High Court in Kareli Municipality vs. State(3). The provisions of that section are similar to the provisions of sec. 295 of the Rajasthan Act. The corresponding provisions of sec. 57 are reproduced below - "Sec. 57(1) - If a committee is not competent to perform or persistently makes default in the performance of the duties imposed on it or undertaken by it under this Act or any other enactment for the time being in force, or exceeds or abuses its powers to a grave extent the State Government may, by an order stating the reasons therefor published in the Official Gazette, dissolve such Committee and may order a fresh election to take place." "Sec. 57(5) - No order under sub-sec. (1) or sub-sec. (2) shall be passed until reasonable opportunity has been given to the committee to furnish an explanation." The full Bench held as follows - "The short question is that where charges have been framed and the explanation of the municipal committee is in whether the reasons given for superseding the committee can be examined by the Court. We agree with the learned Judges of the earlier D vision Bench that the Court may in its writ jurisdiction interfere if the order is mala fide, arbitrary, without jurisdiction or in utter violation of the principles of law or natural justice. We are however, not satisfied that the Court is incompetent to consider the sufficiency or adequacy of the material upon which the charges were regarded as proved. We would like to restate this part of the law again. The learned Judges of the earlier Division Bench quite correctly gave the four reasons on which the Court may interfere but they however, took away the effect of much that they had said before by observing as follows - "We therefore, decline to consider the sufficiency or adequacy of the material upon which the charges were regarded as proved." In our opinion, this dictum takes away the power of examining the reasons which may be entirely unrelated to the facts proved, and it is too wide and needs to be re-stated. The Central Provinces & Berar Municipalities Act, 1922 requires that supersession of a Municipal Committee maybe done when one or more of the conditions laid down in sub-sec. (2) of sec. 57 of the Act are found to exist. The reasons must have relation to those conditions and must be sufficient for the exercise of the power conferred on the Government. The Court will not examine the reasons as in an appeal, but will certainly examine them with advertence to their reasonableness and sufficiency for the legitimate exercise of the power granted to the Government. At the same time, the action of the Government has to be reasonable and the reasons for the action have to be stated, and the exercise of power can be examined to see whether in the circumstances under which it has been exercised the necessary power under the Act flows to the Government. In a democratic society it is of the essence that democratic institutions are allowed to function and not superseded on trumpery charges inadequately brought home or unreasonably accepted. The Courts will be vigilant to see that such over reaching powers are kept within the four corners of the statute granting them. We think that the fact that a reasonable opportunity to show cause has been made a condition precedent to the exercise of the power and that reasons for the supersession have to be notified to the electorate shows that there is not to be a subjective appraisal but that the reason must be sufficient under the Act and an objective test is indicated. The requirements of the law are not satisfied by accepting insufficient or inadequate reasons for supersession. We think that the Courts are at liberty to examine the reasons for this limited purpose in addition to the purposes which the learned Judges of the Division Bench (Mangal Murti & Madholkar JJ.) have already indicated in their order." I am in respectful agreement with the above observations. The provisions of sec. 57 of the C.P. and Berar Municipalities Act, 1922 were also considered by their Lordships of the Supreme Court in Radeshyam vs. State of Madhya Pradesh(4). It was held that the procedure prescribed for taking action under sec. 57 was a quasi-Judicial one. Sec. 295 speaks of - (a) incompetence to perform its duties, (b) persistent default in performing its duties, (c) exceeding its powers, (d) abusing its powers. The same act may fall under more than one of the above heads. But in order that the Board may have reasonable opportunity to explain, the State Government should normally indicate about each act separately whether it proves incompetence or whether it shows persistent default or whether it amounts to exceeding its powers or to abusing its powers. There is a clear distinction between exceeding its powers by the Board and abusing them. The Board exceeds its powers where it does something which it is not authorised to do. But it can be said to abuse its powers only when it is shown that the power was used for an ulterior purpose. The Board may abuse its powers without exceeding them.
(3.) IN the show cause notice it was stated that (1) the Board was incompetent to perform its duties, and (2) it had exceeded and abused its powers. But in the statement of allegations accompanying the notice it was no where alleged that any power was abused, that is used for an ulterior motive. It is thus clear that all that was really alleged was that the Board was incompetent to perform its duties and had exceeded its powers. The finding of the State Government on the other hand was that : (1) the Board has exceeded and abused its powers, and (2) it had persistently made defaults in the performance of its duties. In the show cause notice it was not alleged that the Board had persistently made defaults in the performance of its duties. Now I proceed to deal with the charges one by one in the light of the observations made above. Charge No.1. Abolition of cycle tax without prior approval of the Government and thereby causing a financial loss to the Board. The facts relevant to the charge are that on 7.3.64 the Board passed a resolution abolishing cycle tax. The Board did not think that it was necessary to obtain the sanction of the State Government before it could abolish the cycle tax. But in the audit report dated 14.8.64 it was stated that the Board could not abolish cycle tax without the sanction of the State Government. When this report was received the Board moved the Government for sanction. Sanction was refused by the Government vide its letter dated 16.2.65. The Board again passed a resolution on 23.2.65 requesting the Government to reconsider its decision. It was pointed out that Deedwana was a small town having regard to the expenditure incurred in collecting cycle tax it was not worth while levying it. The Government again turned down the request of the Board under its letter dated 15.5.65. The Board then passed a resolution on 23.5.65 deciding to levy cycle tax with effect from 1.4.65. By the time a reply from the State Government was received under letter dated 16.2.65 the financial year 1964-65 had practically run. That is why the Board decided to levy cycle tax from 1.4.65 only. ;