ATHGARH NOTIFIED AREA COUNCIL Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE petitioners claim to be the elected office bearers of Athgarh Notified Area Council (hereinafter referred to as the 'N.A.C.'), They were elected in the month of July, 1997 and the period of office to which they were elected as Chairperson and Councillors is five years. When they were holding their respective offices, show -cause notice was issued to them vide Annexure -1 in respect of certain charges levelled against them. The charges so levelled were that there was irregularity in allotment of shops in the market complex; that the market complex has been constructed on the Government land without any permission from the appropriate department; neither temporary licence was issued nor permission was accorded in favour of the evicted persons for establishment of wooden cabins in the N.A.C. area; shop -rooms were allotted on 27 -12 -1999; ten rooms have been let out @ Rs. 300/ - per month and one room @ Rs. 400/ - per month but no records are available to that effect, though the said site was located in the disputed market complex; apart from the sanctioned strength of L. F. S. cadre and non I.F.S. cadre, the N.A.C. has given appointment to 22 persons, without Government sanction; they have misappropriated the funds of the N.A.C. and also the Government funds; and they have not utilised the Government grants properly. Thus, alleging they were called upon by the N.A.C. to submit the explanation. The petitioner No. 1 being the Chairperson submitted his explanation as contained at Annexure -2.

(2.) IN the explanation stand taken was that all the irregularities indicated related to the previous office bearers of the N.A.C. and not to them. According to petitioner No. 1, no action under Section 401(2) of the Orissa Municipal Act, 1950 (in short, the 'Act') can be ordered against the office bearers of the N.A.C. . On receipt of the explanation at Annexure -2, the Director of Municipal Administration & Ex -Officio Additional Secretary to Government, Housing and Urban Development Department, Orissa by notifications dated 24 -1 -2001 contained at Annexures 4 and 5 dissolved the N. A. C. with immediate effect and appointed the Sub -Collector, Athgarh as Administrator to exercise the power and discharge all the duties/responsibilities of the said N.A.C. and its Chairmanship until further orders. Both the notifications referred to above read as follows :

(3.) CHALLENGING the aforesaid two notifications, this writ petition has been filed. The main attack to the orders passed by the Director of Municipal Administration & Ex -Officio Addl. Secretary to Government is that (i) he passed the orders without applying his mind to the relevant provisions of the Orissa Municipal" Act and the Orissa Municipal Rules; (ii) the orders so passed are illegal as they were passed without issuing notice to them; (iii) the irregularities pointed out in the show -cause notice related to the period of their predecessors and not to the period of the petitioners; (iv) the orders under challenge are arbitrary for the reason that no reasons have been assigned; and (v) the orders are the out -come of non -application of mind as the explanation submitted has not been considered in its proper perspective. It has also been submitted that the orders have been passed illegally and contrary to Article 243U of the Constitution of India, which envisages that before passing an order of removal on the ground of disqualification the Municipality shall be given a reasonable opportunity of being heard before its dissolution. In the instant case, no such opportunity was granted to the petitioners.