T. Phungjathang Vs. State of Manipur and ors. - Court Judgment

Excerpt:
- - asok potsangbam, learned counsel for the petitioner as well as mr. the impugned notification dated 23rd december, 1977 therefore is clearly in violation of the statutory provision of section 16 of the act. what cannot be done from the front door cannot be done from the back door as well. asok potsangbam learned counsel for the petitioner that the petitioner has been appointed as chairman on 13-11-1997 and the first meeting was held on 29-11-97, and therefore, the term of office of the chairman of the petitioner would expire on 28-11-98. from the order dated 3rd february, 1996, annexure, a/2, it clearly appeared that the petitioner was appointed by the aforesaid order as chairman of the authority with immediate effect. h.k. sema, j. 1. in this writ petition, petitioner has assailed the impugned order dated 23rd december, 1997 passed by the respondents in supersession of the order dated 13th november, 1997 purportedly in exercise of the power conferred under section 13 read with section of the manipur town and country planning act, 1975 (in short the act), thereby replacing the petitioner as chairman of the planning and development authority by the respondent no. 3 as violative of proviso to section 16 of the act. 2. facts leading to the filing of the present writ petition may be summarily recited. petitioner was appointed as chairman of the planning and development authority in exercise of the power under section 13 read with section 14 of the act, by an order dated 3rd february 1996. in the.....

Judgment:

H.K. Sema, J.

1. In this writ petition, petitioner has assailed the impugned order dated 23rd December, 1997 passed by the respondents in supersession of the order dated 13th November, 1997 purportedly in exercise of the power conferred under Section 13 read with Section of the Manipur Town and Country Planning Act, 1975 (In short the Act), thereby replacing the petitioner as Chairman of the Planning and Development Authority by the respondent No. 3 as violative of proviso to Section 16 of the Act.

2. Facts leading to the filing of the present writ petition may be summarily recited. Petitioner was appointed as Chairman of the Planning and Development Authority in exercise of the power under Section 13 read with Section 14 of the Act, by an order dated 3rd February 1996. In the interregnum two non-Official members namely; Shri M. Bijoykumar Singh and Shri N.I. Singh terms of appointment expires on 2-6-97 as would appear from the Annexure P/19 of the Supplementary counter of the respondents.

3. Petitioner, by its letter dated 15-9-97 suggested the names of Shri T. Dinachandra Singh and Shri N. Binoy Singh to be the non-official members in place of the members terms expires on 2-6-97. After accepting proposal, by Notification dated 13-11 -97, the Planning and Develop-

ment Authority was reconstituted with Shri T. Dinachandra Singh and Shri N. Bijoy Singh as non-Official members. However, impugned Ratification dated 23rd December, 1997 has been issued in supersession of the Notification dated 13th November, 1997 thereby replacing the petitioner as Chairman by the respondent No. 2. Being aggrieved, this petition has been filed.

4. I have heard Mr. Asok Potsangbam, learned counsel for the petitioner as well as Mr. T. Nandakumar, learned Advocate General for the State of Manipur at length.

5. Following contentions have been raised by learned counsel for the petitioner.

(a) The term 'Supersession' appearing in the impugned Notification dated 23rd December, 1997 is nothing but a removal, and if that is so, the impugned Notification is illegal, because no opportunity has been afforded to the petitioner as visualised under Proviso to Section 16 of the Act.

On the other hand, it is contended by Mr. T. Nandakumar, learned Advocate General that, power under Section 13 and 14 to constitute the Authority also conferred power to reconstitute with the Members mentioned therein.

6. Before I proceed further, I may at this stage dispose of this argument of learned Advocate General. There is no quarrel that the appropriate Government has the power to reconstitute with the new members in exercise of its power under Section 13 and 14 of the Act in place of members whose terms have been expired. But the question here is, by impugned Notification the earlier Notification appointing the petitioner as Chairman has been superseded by appointing new Chairman with the respondent No. 2 during the validity of the term of Office of the Chairman of the petitioner.

7. The sole question to be determined in this case therefore, revolves around as to whether the term 'Supersession' appearing in the impugned notification dated 23rd December, 1997 amounts to 'Removal.'. To answer the question posed for determination, referring to few sections of the Act would be necessary.

8. The Act is a statutory Act, Section 13(l)of the act empowers an appropriate Government to constitute an Authority to be known as the Planning and Development Authority. Section 13 (2) provides that, Authority shall be a body corpo-

rate having perpetual succession and a common seal with power to acquire, hold and dispose of properties, both moveable and immoveable, and to enter into any agreement on behalf of the Authority and by its name, sue and be sued. This would show that the authority is a juristic person.

9. Section 14 deals with the composition of the Authority and it is stated that the Chairman is to be appointed by the State Government.

10. Section 16 (1) of the Act deals with the removal of the members of the Authority including the Chairman and Vice Chairman. This section has an important bearing for disposal of the case at hand and I shall discuss in detail at the appropriate time.

11. Section 90 of the Act empowers the State Government to make rules by a notification for carrying out of the purpose of this Act.

12. Before I advert further on the other points, I may at this stage point out that, the Government of Manipur by notification dated 29th December, 1977 published in the Extra Ordinary Gazette notification on 29th December, 1977 framed rules in exercise of power conferred by Section 90 of the Act called, The Manipur Town and Country Planning (Term of Office of the Chairman, Vice Chairman and Members of the Planning and Development Authority) Rules, 1977. In Rule 3 of the rules, it has been provided that the term of Office of the Chairman, Vice Chairman and Members of Authority constituted under Section 13 of the Act shall be two years with effect from the date of first meeting of the authority.

13. Section 93 of the Act deals with Dissolution of the Authority.

14. Section 16 of the Act deals with the removal of the Chairman, Vice Chairman and Members. It reads :--

'16 (1) The State Government may remove from the Authority any member (including the Chairman and Vice Chairman) who --

(a) refuses to act or becomes incapable of

acting or absents himself from three consecutive

meetings of the authority and is unable to explain

such absence to the satisfaction of the Authority;

OR

(b) has so flagrantly abused in any manner, his position as a member of the Authority as to render his continuance detrimental to the public

interest :

Provided that when the State Government proposes to take any action under any of the above provisions, an opportunity shall be given to the member concerned to show cause why such action should not be taken against him.

(2) A member removed under clauses (a) and (b) of Sub-section (1) shall not be eligible for re-nomination, as the case may be.'

15. Section 17 of the Act deals with terms and conditions of the service of Chairman, Vice Chairman and other members and it provides that the Chairman and Vice Chairman and other members of the Authority shall be entitled to receive such salaries and allowances as may be fixed by the State Government. Sub-section (2) of Section 17 provides that, Chairman, Vice-Chairman or any members of the Authority may resign his office by giving notice in writing to the State Government, and on the resignation being accepted by the State Government, he shall cease to hold Office of the Authority.

16. A fasicule reading of the aforesaid sections as referred to above, save and except that the Chairman, Vice Chairman and the members may resign their membership as visualised under sub-section 2 of Section 17 or the Dissolution of the Authority by the State Government in exercise of the power conferred under Section 93 of the Act, the only procedure prescribed for removal of the Chairman, Vice Chairman and members is Section 16 of the Act.

17. It is specifically contended by the learned Advocate General that, no opportunity as visualised under proviso to Section 16 of the Act would be necessary in the instant case, as the respondent Government did not resort to proviso to Section 16 of the Act. In other words, the Notification dated 23rd December, 1997 has been issued in supersession of the earlier order and not the removal of the petitioner from the Chairmanship of the Authority.

18. Now let us see whether the term 'Supersession' amounts to 'Removal'.

The Shorter Oxford English Dictionary, 1936 Ed., Vol. 11, page 2084, assigns to the word 'supersede' in the following terms.

(1) to make of no effect; to render void, nugatory or useless; to annul; to override;

(2) to be set aside as useless or obsolete; to be replaced by something regarded as superior;

(3) take the place of (something set aside or abandoned); to succeed to the place occupied by; to serve, be adopted or accepted instead of;

(4) to supply the place of (a person deprived of or removed from an office or position) by another;

(5) of a person; to take the place of (someone removed from an office or promoted), to succeed and supplant (a person) in a position of any kind.'

Therefore, according to the Dictionary meaning, the term 'Supersede' amounts to removal. If that is so, the procedure prescribed u/S. 16 of the Act must be followed before any action is taken removing any member from the post. In the instant case, giving a reasonable opportunity of hearing has been embodied in the statute itself. There is no denying the fact that the impugned notification dated 23rd December 1977 has been issued replacing the petitioner as Chairman by the respondent No. 2 during the validity of the term of the petitioner as Chairman of the Authority. The impugned notification dated 23rd December, 1977 therefore is clearly in violation of the statutory provision of Section 16 of the Act. In the instant case, it appears that the appropriate authority applied the backdoor method in the guise of superseding of the earlier order appointing the petitioner as Chairman of the Authority. What cannot be done from the front door cannot be done from the back door as well.

19. As earlier stated, the appropriate authority has framed the rules as conferred by Section 90 of the Act, fixing the term of Office of the Chairman, Vice-Chairman and Members of the Authority constituted under Section 13, of the Act which shall be 2 (two) years with effect from the date of first meeting of the Authority. Once the Chairman, Vice Chairman is appointed, the term of Office shall be 2 (two) years with effect from the date of first meeting of the Authority save and except of the provision under sub-section 2 of the Section 17 under which they can resign their Office or ceased to be a member pn the dissolution of the Authority as visualised under Section 93 of the Act. The only mode prescribed for removal of the Chairman, Vice Chairman or the members as the case may be is Section 16 of the Act which has not been at all followed in the instant case.

20. For the reasons aforestated, the impugned Notification dated 23rd December, 1997 being in violation of the provision of Section 16 of the Act, is held to be vitiated for non observance of the principle of natural justice.

21. This remains to be decided as to what relief the petitioner is entitled. It is contended by Mr. T. Nandakumar that the petitioner was appointed as Chairman on 3-2-1996, and the first meeting was held on 28-2-96 and reckoning 2 (two) years from the date of first meeting, the term of the Chairman of the petitioner expires on 27-2-1998 during the pendency of this writ petition. It is however, contended by Mr. Asok Potsangbam learned counsel for the petitioner that the petitioner has been appointed as Chairman on 13-11-1997 and the first meeting was held on 29-11-97, and therefore, the term of Office of the Chairman of the petitioner would expire on 28-11-98. From the order dated 3rd February, 1996, Annexure, A/2, it clearly appeared that the petitioner was appointed by the aforesaid order as Chairman of the Authority with immediate effect. It also appeared at annexure P/18 of the Supplementary Affidavit of the respondent that the 6th meeting of the 10 th Authority was held on 28-2-1996 under the Chairmanship of the petitioner. Therefore, counting, the terms of 2 (two) years from the first meeting held on 28-2-96, the term of office of the Chairman of the petitioner expires on 27-2-1998. The contention of Mr. Asok Potsangbam that the petitioner has been appointed on 13-11-1997 cannot be accepted, because by the said Notification dated 13th November, 1997, board has been reconstituted with a view to include the two non-Official members, namely; Shri T. Dinachandra and Shri N. Binoy Singh, whose names have been initiated by the petitioner by its letter dated 15-9-1997 in place of Shri N. Bijoykumar Singh and Shri N. I. Singh non-Official members whose terms have been expired on 2-6-1997.

22. It would be quite absurd to suggest that, with every reconstitution of the Authority with the new members the term of Office of the other members would be reckoned from the date of reconstitution. Only the term of the Office of the new members included in reconstitution of the Authority shall be entitled to reckon his term of Office from the date of first meeting after the reconstitution. In the instant case, since the peti-

tioner was appointed as Chairman on 3-2-1996 and the first meeting was held on 28-2-96, his term of Office has to be reckoned with effect from the first meeting i.e. 28-2-1996, and if that is so, it would expire on 27-2-98. Literally speaking, this writ has become infructuous in the meantime. The main prayer of the petitioner is to quash the impugned order and to allow the petitioner to function and discharge his duties as the Chairman of the Authority. This prayer does not survive now. But, since the petitioner has succeeded on legal points, the pay and allowances of the petitioner up to 27-2-1998 shall be paid. Petitioner shall be paid his balance pay allowances within a period of 2 (two) months from the date of receipt of this order.

With the aforesaid direction, this petition is disposed.