A N TENDULKAR Vs. C F MATHIAS

JUDGEMENT

(1.) BY this petition under Articles 226 and 227 of the Constitution, the petitioner, who was the President of the Bhor Municipality, seeks to get quashed the order dated 10th July 1964 made by the State Government, in exercise of its powers under section 28 (7) of the Bombay District Municipal Act, 1901 (hereinafter referred to as the Act,) removing the petitioner from the office of President.

(2.) THE facts giving rise to this petition in brief are : As already stated, the petitioner was an elected president of the Bhor Municipality. In his capacity as the president, he presided over the meetings of the Municipality on 30th January 1963. In that meeting, the Municipality passed a resolution to the effect that sarvashri B. S. Bapat and R. D. Patil of the Bhor Municipality should not be allowed to sit in the house till they apologised for having published mischievous new in the two newspapers i. e. "tarun Bharat" and 'sakal' against the President. The effect of passing that resolution was that the aforesaid two councilors were prevented from participating in the deliberations of the meeting. On these facts being brought to the notice of Government, is appears that the State Government took the view that the failure or omission on the part of the petitioner is disallow the said resolution amounted to neglect and showed incapacity to perform his duty properly. Further it appears that Government took the view that the President had taken the law in his own hand and had prevented the councilors from attending the said meeting. It appears took the view taken by Government is that the right of a Municipal Councillor to attend the meeting of the Municipality is a councillor's "fundamental right", and preventing a municipal councillor from attending the meeting amounted to misconduct. A show cause notice was, therefore, issued to the petitioner, and the order of 16th July 1964 indicates that Govt. found that the explanation of the petitioner was not satisfactory. The State Govt. cam to the conclusion that the section of the petitioner amounted to negligence in the performance of his duty and showed his incapacity to perform his duty as president properly. On these findings, the State Government made the following operative order:-

(3.) BEFORE we proceed to consider the contentions raised by Counsel for the parties, on merits, it would be convenient to consider an objection raised by Mr. Sanghavi, which could be said to be in its nature a preliminary objection. It is the government removing the petitioner is not a quasi-judicial order, but it is an administrative act. It is, therefore, not competent to this Court to quash this order in exercise of its power under Article 226 or 227 of the Constitution of India.