JUDGMENT
N.V. Dabholkar, J.
1. By this application, the petitioner in Writ Petition No. 5022 of 2000 (since reported in 2000(1) Mh.LJ 901) seeks review of the judgment and order passed by this Court (Coram : Marlapalle and Dabholkar, JJ.) on 16-12-2000, By the impugned order, writ petition challenging the order dated 29-11-2000 passed under Section 55A read with 55B(b) of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (for short, “the said Act” hereinafter), by the respondent No. 3, by which the petitioner was removed from the post of President of Municipal Council, Partur, District Jalna and also disqualified for a period of six years from the date of the order for being elected as Councillor, was dismissed.
2. In the elections for Partur Municipal Council held on 1-12-1996, panel of the petitioner was elected with thumping majority of 14 seats out of 17. Elected seats included the petitioner, his wife Vimaladevi as also one Shri Shamsingh Thakur. On 17-12-1996, Shri Thakur was elected as President, since the post was then reserved. Subsequently, Shri Thakur proceeded on leave and Smt. Vimaladevi, the then Vice President took the Presidentship from 2-7-1997 to 5-11-1997. In the fresh elections for the Presidentship held on 17-12-1997, the petitioner was elected.
The respondents Nos. 4 to 6 along with other Councillors had submitted representations in the later half of the calender year 1999. Consequently, the show cause notice dated 9-6-2000 was issued against, the petitioner levelling three charges against him. On service of the notice, the petitioner applied for documents which were duly supplied to him on 4-7-2000. The petitioner also submitted a detailed reply on 12-7-2000. Hearing took place on 17-8-2000 when the petitioner himself along with his Advocate Shri Deshpande, ex-MLA Shri Kadir (respondent No. 7) and others were present. The order removing the petitioner from the post of President and disqualifying him for being elected as a Councillor for the next six years came to be passed on 29-11-2000. It was communicated to the petitioner vide forwarding letter dated 5-12-2000.
3. By the judgment under review, it was observed that charge No. 3 was regarding resolution passed about 7 years ago and the same was during the earlier tenure (1990-1995) of the petitioner as President of the Municipal Council and it was too late for the respondent No. 3 to proceed on such a stale charge and therefore, it was held that there is no case made out to proceed against the petitioner on account of the said charge.
So far as first charge regarding favouring M/s Gajanan Cotton and Pressing Factory, owned by the family of the petitioner, by charging less betterment charges and the development cess, apart from the fact that the order passed by the respondent No. 3 recorded that the Municipal Council officers and Councillors connived and caused loss to the Municipal Council and Smt. Vimaladevi, who was acting as President for some period; was also blamed, there was nothing on record to show that favours were at the instance of the petitioner. It was felt necessary that when the findings pointed out a finger against the Municipal Council Administration it was necessary for the council to probe into the same and proceed against the officers concerned. Failure or laxity on account of supervision was not sufficient reason justifying removal from the post of President of Municipal Council. We have, therefore, taken a view that even on account of findings recorded on the first charge, action of removal was not justified.
While dismissing the writ petition we have upheld the order passed by the respondent No. 3 so far as second charge that was levelled against the petitioner. For the purpose of present review petition, we are concerned with the second charge; reply of the petitioner to the same and findings of the respondent No. 3 on it.
Second Charge, in brief, reads as under :
M/s Shri Gajanan Cotton Pressing Factory had imported machinery worth Rs. 25.99 lakhs and it was liable to pay octroi at the rate of 3% which amount would have come to Rs. 77,970/-. However, resolution No. 30 came to be passed on 30th December, 1997 by the Standing Committee which was chaired by the petitioner and it was decided to charge octroi on the said machinery at the rate of 1% instead of 3%. As per the said resolution the factory paid an amount of Rs. 23,490/- though, as per the resolution also the said amount ought to have been Rs. 25,900. On this count also it was alleged that the petitioner acted in breach of the provisions of Section 58(1)(b) of the Maharashtra Municipalities Act.”
In reply to the said charge, the petitioner had explained before the respondent No. 3 that Shri Ashish Kumar Jethalia was not the member of his family. A decision to grant concession in the octroi was taken in the meeting of the Standing Committee on 30-12-1997 for the reasons recorded therein in exercise of statutory powers of the Standing Committee. It was collective decision and not the personal decision of the President and therefore, it was incorrect to charge the President for the same. Assessment, demand and recovery of octroi was part and parcel of day to day administration and the President was in no way concerned in restraining the authorities from demanding and recovering the same. It was open for the Municipal Council administration to recover the octroi as per the provisions of the said Act. It was, therefore, contended that the petitioner cannot be held responsible for causing monetary loss to the Municipal Council, and thereby committing breach of Section 58(1)(b) of the said Act.
By the order dated 29-11-2000 the respondent No. 3 observed that, as per the Maharashtra Nagar Panchayat (Octroi) Rules, 1968, and more particularly Rule 5(3) only the Municipal Council was competent to reduce the rates of octroi. The Standing Committee had no such powers. In order to reduce the octroi procedure prescribed by Rule 5(2) was required to be followed. Neither there was decision by the Municipal Council nor the procedure prescribed was followed. In fact, the machinery was imported, factory was erected and thereafter, the decision to give concession in the octroi was passed on 30-12-1997. The factory was inaugurated on 6-1-1998 and the octroi was paid only thereafter on 12-1-1998. Consequently, it was observed that the petitioner, immediately after the Standing Committee came into existence on 27-12-1997, caused monetary loss to the Municipal Council by taking illegal action in total breach of the Rules.
When the Writ Petition was heard, it was specifically pointed out by Shri Salunke, learned counsel for the respondents Nos. 4 to 6 that invitation card for inaugural function of Shri Gajanan Cotton Pressing Factory, on its envelope, showed the name of the petitioner as Sender and this indicate that the petitioner had interest in the said factory. Although the petitioner had initially denied Ashish being his family member, there is no dispute that Ashish is real nephew of the petitioner.
While upholding the finding on charge No. 2 against the present petitioner, as recorded by the respondent No. 3, this Court observed :
“The resolution passed is a premeditated design of the petitioner to grant financial gains to the establishment of his nephew and that too by causing loss to the council. This is certainly an act of misconduct by the petitioner. We, therefore, hold that charge No. 2 has been duly proved against the petitioner.”
The ratio in case of Surinder Prakash Goel v. State of U.P., was held inapplicable in the facts and circumstances of the case at hand. In the reported case, there were clear observations that the petitioner had not benefitted personally in connection with the charges levelled against him and there were no finding that the petitioner therein got any financial or other benefits.
4. The review petition filed on 19-12-2000, only on the third day after the judgment, sought to be reviewed opens as under:
“At the outset, the petitioner begs to state that the petitioner is not interested in continuing to hold the office of the President of the Municipal Council, Partoor. The petitioner is concerned with the stigma attached to him by reason of an action of removal from the office of the President and further disqualification for becoming a Municipal Councillor for a further period of six years. The petitioner hereby reiterates that if at all it is necessary, the statements made in this petition itself may be accepted as resignation of the petitioner from the office of the President ship and it may be deemed that the petitioner had remitted the elective office of the President voluntarily….”
However, by prayer Clause (D), the petitioner has prayed for quashing and setting aside the order of removal of the petitioner from the office of President and also order disqualifying him from contesting the election for the Councillors post, for a period of six years.
While praying to allow the review petition and consequently the Writ Petition No. 5022 of 2000, thereby quashing and aside the order dated 29-11-2000 passed by the respondent No. 3, the petitioner claims that there is error apparent on the face of record in the show cause notice itself. According to the petitioner, charge No. 2 of the show cause notice is fundamentally faulty, which vitiates the entire proceeding. At the same time, the petitioner also relies upon the discovery of documents having material bearing on the point at issue. It is claimed that the impugned order was passed on 29-11-2000 and writ petition was filed on 7-12-2000. Thus there was hardly any time for research. The petitioner has relied upon the documents filed at Pages 82 to 85 (Exhibits C, D, E and F) in order to substantiate the contention that charge No. 2 which is held established by the respondent No. 3 and which finding is upheld by this Court is fundamentally faulty.
Exhibit “C” is the octroi receipt dated 12-1-1998 in favour of M/s Gajanan Cotton Pressing Factory, which indicates that octroi Rs. 24,490/- is paid towards the machinery. The machinery is shown as valued Rs. 7.83 lakhs and octroi, is shown as recovered at 3%. Exhibit “D” at Page 83 is the copy of letter dated 24-11-1998 addressed to the respondent No. 7 by the Divisional Officer of Maharashtra State Financial Corporation. By the said letter, it is informed that the machinery is valued Rs. 25.99 lakhs, at the time of disbursement of the loan and Ashish is the owner of the factory. Exhibit “E” is the show cause notice dated 10-12-1998 issued by the Chief Executive Officer, Municipal Council, Partur to Ashish. Ashish was directed to offer his explanation as to why octroi should not be levied by considering the price of the machinery to be 25.99 lakhs. This show cause notice is responded by Ashish vide Exhibit “F”. He has admitted that the cost of machinery is 25.99 lakhs. Stating that the Unit is constructed by taking loan of Rs. 40.00 lakhs he has requested for concession in the octroi vide his application dated 29-2-1997. He has added that, Council has not informed him anything about the action taken on his application and requested to inform him whether his application was considered.
According to Shri Shah, Sr. Counsel for the petitioner, Exhibit “C” clearly indicates that “C” the octroi was levied at 3% and the short recovery was the result of owner showing the valuation of the machinery on the lower side and not because the octroi was levied at 1%. Thus, the resolution dated 30-12-1997 although passed by the Standing Committee, was not the cause for monetary benefit to said Shri Ashish or to that extent, monetary loss, to the Municipal Council.
Charge No. 2 as levelled against the petitioner, alleged the petitioner to be instrumental, by reason of resolution passed in the meeting of the Standing Committee dated 30-12-1997 in causing monetary loss to the Municipal Council by levying octroi at 1% instead of 3%, but on considering the documents, now discovered, it can be seen that, if at all, under valuation regarding the price of the machinery by the owner was the cause for less recovery and not the resolution. According to Shri Shah, it is, therefore, immaterial whether Standing Committee was or was not empowered to pass such a resolution. This is because, the resolution has not seen the light of the day, much less helped Ashish in evading payment of octroi at 3%. Resolution dated 30-12-1997 being the cause for less recovery of octroi is the foundation of charge No. 2 levelled against the petitioner and as the documents indicate, the foundation of the charge itself, can be seen to be faulty. According to Shri Shah, therefore, the charge ought to be held as not proved and the petitioner ought to be exonerated of the same. Consequently, judgment upholding the order dated 29-11-2000 which is based on the finding of this Court that charge No. 2 is sustainable against the petitioner, will have to be reviewed, thereby allowing the writ petition and quashing the order passed by the respondent No. 3 on 29-11-2000.
5. Taking into consideration the provisions of Section 114 read with Order 47 of the Civil Procedure Code, a person considering himself aggrieved by an order from which no appeal has been preferred although allowed, can seek review of the order in following circumstances;
(i) Discovery of new and important matter or evidence, which after the exercise of due diligence was not within his knowledge or cannot be produced by him at the time when the order was passed, (ii) On account of some mistake or error apparent on the face of record. (iii) For any other sufficient reason.
Being aware that all the documents asked for were furnished at the time of enquiry and there was sufficient time gap between the service of notice dated 9-6-2000 and tendering of reply dated 12-7-2000, the petitioner who was then President in the office will hardly be able to claim that the documents Exhibits “C” to “F” which are now relied upon, were not available even after exercise of due diligence. Stronger reliance is placed on the second ground i.e. error apparent on the record, as also the third ground i.e., for any other sufficient reason. The contention that charge No. 2 held proved against the petitioner was fundamentally faulty, can be covered under “any other sufficient reason” rather than “error apparent on the face of record.”
6. Shri Shah has therefore, relied upon the observations of the Apex Court in case of A.R. Antuley v. Ramdas Nayak, . While recalling the orders regarding trial by the High Court for offences under Sections 161, 165, 384, 420, 164, 165-A of Indian Penal Code and Section 5 of the Prevention of Corruption Act, for which the High Court had no jurisdiction to try under the Act of 1952, it was observed :
‘The basic fundamentals of the administration of justice are simple. No man should suffer because of the mistake of the Court. No man should suffer a wrong by technical procedure or irregularities. Rules of procedure are the hand-maids of justice and not the mistress of the justice. Ex debito justitiae, the Court must do justice to him. If a man has been wronged so long as it lies within the human machinery of administration of justice that wrong must be remedied.”
According to Shri Shah, the petitioner has been wronged by levelling charge which was faulty in its foundation and upholding the same. Therefore, the judgment upholding the finding of the respondent No. 2 that faulty charge is proved is required to be reviewed and writ petition ought to be allowed thereby quashing the order of the respondent No. 3 since the respondent No. 3 should not have levelled the said charge. In case of Srinivasiah v. Balaji Krishna, AIR 1994 SC 462, relied upon by Shri Shah, learned counsel for the petitioner, the Supreme Court had initially dealt with the Civil Appeal preferred by tenant which was allowed, judgment of the High Court of Madras was set aside and the eviction petition filed by the landlord was dismissed. The eviction was sought on the ground that of bona fide requirement of the landlord for business of his son and eviction was ordered by the Rent Controller. The judgment was confirmed by the Appellate Authority as also the High Court. The judgment held that the landlord bona fide needed shop occupied by the tenant for the purpose of his son’s business. In the Civil Appeal, these judgments were set aside by the Supreme Court on the short ground that behind the shop, occupied by the tenant, who was sought to be evicted, there was a shop room which had fallen vacant and the landlord had not established that it was not suitable for his son’s business.
While allowing the appeal of the tenant, the paper book did not incorporate the judgments of the Rent Controller and Appellate Authority and the Supreme Court did not have benefit to refer to the findings of the Rent Controller and appellate authority and the judgment in civil appeal proceeded on the assumption that the available accommodation was in the nature of shop. Finding of the Rent Controller and Appellate Authority was that the accommodation was in the nature of godown. Upon these observations being brought to the notice of the Apex Court, it was held that there was ample justification for interference in the review jurisdiction.
Lastly, Shri Shah has also relied upon the observations of the Supreme Court in case of Common Cause, a registered Society v. Union of India, . In para No. 170 of the judgment, the Supreme Court has borrowed the observations in the earlier decision in case of S. Nagaraj v. State of Karnataka, 1993 Supp.(4) SCC 595, in which it is observed that:
“Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities law can stand in its way. The order the Court should not be prejudicial to anyone. Rule of stare decisis adhered for consistency but it is not as inflexible in Administrative Law as in Public Law. Even the law bends before justice. Entire concept of writ jurisdiction exercise by the higher Courts is founded on equity and fairness. If the Court finds that the order was passed under a mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice then it cannot on any principle be precluded from rectifying the error. Mistake is accepted as valid reason to recall an order.”
7. Shri Salunke, learned counsel for the respondents Nos. 4 to 6 has mainly argued that the review petition itself is not maintainable and for the purpose he has relied upon number of decisions. His arguments were subscribed by the learned Government Pleader representing the respondents Nos. 1 to 3 and Shri Mandlik, representing the Municipal Council, preferred only to observe the contest.
In Aribam Tuleshwar v. Aribam Pishak, , it was observed that review, on the ground that, several instead of one writ petition should have been filed; is impermissible. The question that more than one writ petitions should have been filed was held to be a mere question of procedure. At the same time, it was observed by the Apex Court that powers of review may not be exercised on the ground that the decision was erroneous on merits. A power of review may not be confused with the appellate powers, which may enable an appellate court to correct all minor errors committed by the subordinate Court.
Regarding the reliance placed upon the ruling by Shri Salunke, we are concerned with the second observation. It must be stated that the review is not preferred on the ground that the decision in review was erroneous on merits. Although Advocate Shri Shah, at some point of time, during the course of his arguments, argued that some of the reasons for which charge No. 1 is held to be insufficient ground to cause removal of the petitioner from the office, are also applicable with regard to the charge No. 2, we are not considering the review petition in the light of such arguments. Shri Shah, was relying upon our observations, as contained in para No. 13 of the judgment to the effect that failure or laxity on account of supervision cannot be a reason justifying removal from the post of President of the Municipal Council and one such human aberration certainly would not even remotely justify the action of removal.
The judgment in Smt. Meera v. Smt. Nirmal, , was also relied upon by Shri Salunke for the respondents Nos. 4 to 6. Inapplicability of observations in this case, need not be discussed separately because the same rely upon the observations in the matter of Aribam (supra).
In case of Sau. Chandrakala v. Sk. Habib, , the Supreme Court was disinclined to entertain the review petition against the dismissal of application for special leave to appeal because, the application was based on the same grounds. On the facts, the matter before us is not argued on the same grounds and the grounds already argued earlier, which are tried to be propounded again, are being ignored by us.
In case of Northern India Caterer v. Lt. Governor of Delhi, , it was observed that a party is not entitled to seek review of the judgment delivered by the Supreme Court, merely for the purpose of rehearing and fresh decision of the case. The judgment of the Supreme Court in an appeal under Article 136 of the Constitution holding that transaction of supply and service of food to the customers, to be eaten by the customers in the restaurant was not the sale exigible to tax, was sought to be reviewed. The judgment was based on the undisputed fact that the customer was entitled to merely eat the food and enjoy the amenities and services supplied by the restaurant and was not entitled to remove and carry away unconsumed food. The judgment, it was held, was not open to review, merely because some alternate situations were not presented before the Court. The review was sought because the respondent as well as other States were apprehensive that the benefit of the judgment of the Supreme Court will be invoked by the restaurant owners, of those cases also where there is sale of food and title passes to the customers. While dismissing the review petition, it was observed by the Supreme Court that, it was for the taxing authority to ascertain the facts when making an assessment under the relevant sales tax laws and to determine upon those facts, whether a sale of the food supplied is intended.
On the basis of distinction in facts, between the reported case and case at hand, the judicial decision renders no support to the cause of the respondents.
Lastly, Shri Salunke has relied upon the observations of the Apex Court in case of Parsion Devi v. Sumitra Devi, , in order to enlighten us as to what is “mistake or error apparent on the face of record”. It was observed :
“…..Under Order 47 Rule 1, Civil Procedure Code, the judgment may be open to the review inter alia if there is mistake or error apparent on the face of record. The error which is not as evident and has to be detected by the process of reasoning can hardly be said to be an error apparent on the face of record justifying the court to exercise its power of review under Order 47 Rule 1, Civil Procedure Code. ”
The question whether the petition was or was not covered by Article 182 of the J & K Limitation Act and the petition was or was not thus barred by limitation was the issue upon which two single Judges of the High Court had taken different view.
8. We have already observed in para No. 5 ante that the grounds on which the review is sought, if at all would be justifiable under the category “for any other sufficient reason” than “on account of some mistake or error apparent on the face of record”. This is because, the error which is also not apparent on record is an error in the charge levelled against the pelitioner by virtue of notice under Section 55A of the said Act, and it is not an error apparent on the record of the writ petition, that was decided by the judgment under review. The decision of the writ petition proceeded on the assumption that charge was based upon the correct statement of facts, and this was also because, there was no challenge levelled regarding the correctness of the facts on which the said charge was founded. We have already noted that the petitioner has hardly any case to contend that the documents now relied upon were not available to him in spite of exercise of due diligence. However, the fact remains that, with the additional material, which is the result of research of the petitioner during little span of three days between the judgment under review and filing of the review petition, it has come to the light, that the charge levelled against the petitioner which is held sufficient to remove him from the office of President and debar him from contesting the elections for the post of the Councillor for next six years, was erroneous.
The charge assumed that the octroi of Rs. 23,490/- was the octroi recovered at the rate of 1% on the price of the goods imported and although 1% computed to Rs. 25,900/- was an amount lesser than that was recovered. Less recovery was attributed to the petitioner on the basis of the resolution No. 30 of the Standing Committee dated 30-12-1997. On taking into consideration the octroi receipt produced at Page 82 (Exhibit C) it can be seen that the octroi was recovered at 3% and the short recovery was caused not because of the Resolution dated 30-12-1997 but because the owner had under valued the goods to be levied with octroi.
The basis for action under Section 55A read with 55B(b) is the assumption that Ashish being related to the petitioner, resolution dated 30-12-1997 was passed, which resulted into monetary benefit in favour of said Ashish and loss to the Municipal Council. On considering the octroi receipts, such foundation cannot subsist.
Subsequently, when the Municipal Council learnt that said Ashish had undervalued the imported goods while paying the octroi, a notice was issued to said Ashish on 10-12-1998 asking him to show cause as to why octroi should not be recovered by considering the price of the machinery to be Rs. 25.99 lakhs. Even this notice does not propose to recover octroi at 1%. No doubt, even on repeatedly asking, Shri Mandlik, learned counsel for the Municipal Council has not been able to state that deficient octroi is recovered from the said Ashish. After the show cause notice dated 10-12-1998 and response by said Ashish dated 13-1-1999 (Exhibits E and F), the matter seems to be lying in the cold storage of the Municipal Council. Advocate Shri Mandlik conceded that no further octroi appears to have been recovered from said Shri Ashish by the Municipal Council. Whether the resolution dated 30-12-1997 had influenced the action of Chief Officer or other officers responsible for recovery of deficient octroi or whether inaction on the part of the petitioner in directing such officers to effect the recovery in spite of the letter dated 6-8-1988 addressed personally to the petitioner by the respondent Nos. 6 and 3 others, was sufficient to invite an action under Section 55A read with 55B(b) of the said Act was not the subject matter of the enquiry.
Thus, the contention of Shri Shah that charge No. 2 levelled against the petitioner was based on the assumption, which in fact did not exist, will have to be upheld, since the deficient recovery of octroi was not because it was recovered at the rate of 1%, in accordance with the resolution dated 30-12-1997.
9. The result of dismissal of writ petition by upholding finding recorded by the respondent No. 2 on the charge No. 2 has dethroned the petitioner from the post of President and also denied him to be a Councillor. Not only that but he is debarred from contesting the election for the post of Councillor for the next six years. If the position is allowed to be perpetrated, by upholding as proved, a charge levelled which could not have been levelled but for incorrect assumption of fact, would certainly result into miscarriage of justice.
The review petition, therefore, in the light of observations of the Apex Court in para No. 170, in the matter of Common Cause, a registered Society (supra) will have to be allowed. Consequently, the judgment delivered in Writ Petition No. 5022 of 2000 dated 16-12-2000 will have to be modified.
The writ petition will also have to be allowed, since the action under Section 55A read with 55B(b) would be unsustainable on the basis of faulty charge No. 2, the same having been already held unsustainable on the basis of remaining two charges.
“10. In the result, the review petition is allowed. The judgment dated 16-12-2000 in Writ Petition No. 5022 of 2000 is reviewed and consequently the Writ Petition is allowed.
Ordinarily, while allowing the Writ Petition, this Court would have made the Rule absolute in terms of prayer Clause (a), thereby quashing and setting aside the order dated 29-11-2000 passed by the original respondent No. 2. This would remove the bar imposed against the petitioner from contesting election for the post of Councillor during next six years. This would have also caused reinstatement of the petitioner as President of the Municipal Council, Partur. In view of the time lapse, it is necessary to clarify that although the impugned order is now being quashed and set aside, the petitioner shall not be entitled to be reinstated as President more so in the light of opening para of review petition reproduced at para No. 4 ante. He may not be able to occupy a seat even as Councillor, if the seat is already occupied by other individual, as result of fresh elections in the meantime. He will have a right to a seat as a Councillor, if fresh Councillor from the constituency of the petitioner is not already elected. Such a clarification is necessary, because, while applying for review, the petitioner has not disclosed whether the seats affected because of the impugned order are still vacant or occupied by new incumbents, nor he has impleaded new incumbents as respondents in the review petition.
The Rule is, therefore, made partly absolute in above terms. No order as to
costs.