STATE OF MAHARASHTRA Vs. BABULAL KRIPARAM TAKKAMORE

JUDGEMENT

(1.) THE following judgment of the court was delivered by

(2.) THIS appeal arises out of a writ petition filed by respondent No. 1 before the Nagpur bench of the Bombay High court, challenging the show-cause notice dated 21/07/1965 and the order dated 29/09/1965, superseding the municipal corporation of the city of Nagpur. In July, 1962, the term of office of the present councillors commenced. On 21/07/1965, the government of Maharashtra issued a notice to respondent No. 1, the Mayor of the Nagpur Municipal Corporation, asking him to show cause why the corporation should not be superseded. On 1/08/1965, respondent No. 1 filed his reply to the show-cause notice. On 29/09/1965, the State government passed the impugned order superseding the corporation under ss. 408 and 409 of the City of Nagpur Corporation Act 1948 (C. P. & Berar Act 11 of 1950). On 30/09/1965, respondent No. 1 filed a writ petition challenging the show-cause notice and the order of supersession. The High court allowed the writ petition and quashed the order of supersession. The High court held that the State government exercised its power under S. 408 on grounds which were not reasonably related to its legitimate exercise and the finding upon which the order was passed was rationally impossible on the materials before the State government. The State of Maharashtra now appeals to this court on a certificate granted by the High court. By an order of this court, the Administrator of the City of Nagpur appointed under the order of supersession of 29/09/1965, has been joined as the second appellant.

(3.) THE conditions for the exercise of he power under s. 408 are clearly stated in the section. It must appear to the State government that the corporation is not competent or persistently makes default in the performance of the duties imposed on it by or under the Act or any other law for the time being in force, or exceeds or abuses its powers. Except in cases of emerge icy, the State government must give to the corporation an opportunity to show cause why the order under the section should not be made. If on a consideration of the explanation submitted by the corporation, the State government considers that there is no ground for making the order, the government may drop the proceeding. Otherwise, it may issue an order declaring the corporation to 'be superseded and directing that all the councillors shall retire from office. The order must be published in the Gazette and the reasons: For-making it must be stated therein. There is no appeal to the court from the order under s. 408. in a writ application the court will not review the facts as an appellate body. But the order is liable to be set aside if no reasonable person on a proper consideration of the materials before the State government could form the opinion that the corporation `is not competent to perform, or persistently makes default in the performance of the duties imposed on it by or under this Act or any other law for the time being in force, or exceeds or abuses its powers`. Likewise, the order is liable to be set aside if it was passed in bad faith or if in a case which was not one, of emergency, due opportunity to show cause was not given to the corporation. In all such cases, the order is in excess of the statutory power under s. 408 and is invalid.