As observed above, no reason has been
set out by the State Government for removal of
petitioner, when the admitted position is that
the removal of the petitioner is on account of
Doctrine of Pleasure. The law laid down by the
Hon’ble Apex Court in case of B.P. Singhal
(supra) would clearly apply to the facts of case
that withdrawal of pleasure cannot be at the
sweet will, whim and fancy of the authority but
can only be for valid reasons. Mere using the
word public interest can not become a ground for
removal of petitioner from the Board. There
should be valid reasons for removal. {para 18}
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.2852 OF 2020
Sanjay S/o Kisanrao Kenekar Vs The State of Maharashtra
CORAM : S.V. GANGAPURWALA AND S.G. DIGE, JJ.
PRONOUNCED ON : 04th MARCH, 2022
JUDGMENT (PER S.G. DIGE, J) :
Rule. Rule made returnable forthwith.
With consent of the parties taken up for final
hearing at admission stage.
2. The petitioner is appointed as a Part
Time Chairman of Aurangabad Housing and
Development Board, Aurangabad (Hereinafter
referred to as “the Board”) by respondent no.1-
State Government. On 31st January, 2020, a
notification was issued under the Maharashtra
Housing and Area Development Act, 1976
(Hereinafter referred to as “the said Act”) by
respondent no.1 – State Government and by the
said notification, the appointment of the
petitioner as Part Time Chairman is cancelled.
The said notification was communicated to the
petitioner on 11th February, 2020. Same are
assailed in the present Writ Petition.
3. Mr.Atul Karad, learned counsel for the
petitioner submits that as per section 7 of the
said Act, the term of petitioner as Part Time
Chairman is for three years from the date of
publication of appointment in the Official
Gazette. He further submits that the petitioner
was appointed on 9th July, 2019 by then State
Government. Thereafter, the assembly elections
took place in the month of October, 2019 and new
State Government has formed by alliance of three
political parties. Section 12(2) of the said Act
gives power to the State Government to remove
President, Vice-President or any non-official
member from his office even prior to the
stipulated period of three years. However, the
said powers are not unfettered. The State
Government while exercising it’s powers has to
notify the reasons. Section 12(2) prescribes that
the President, Vice-President and other members
shall hold office during the pleasure of the
State Government but the Doctrine of Pleasure
cannot be invoked in an arbitrary manner. Mere
mentioning the public interest, the petitioner is
removed from the post in the public interest, but
no reason is given for removal of the petitioner
from the post of Part Time Chairman. The
Notification dated 31.01.2020 is contrary to the
provisions of the said Act. The petitioner’s
appointment was for three years. In absence of
any material before State Government regarding
necessity and/or expedient to remove the
petitioner in public interest, the impugned
Notification dated 31st January, 2020 is issued.
The said action of the respondent is illegal,
arbitrary and contrary to the provisions of law
and not as per the procedure contemplated in the
said Act. The appointment of the petitioner is
statutory appointment. The petitioner has put lot
of efforts to implement the schemes as prescribed
in the Statute for the Marathwada Region for
Housing Development. Learned counsel further
submits that the respondent has nowhere mentioned
in the Notification what is the public interest
involved for issuing such notification. Hence
prayed to quash and set aside the impugned
Notification dated 31st January, 2020 along with
the communication dated 11th February, 2020. The
learned counsel relied upon the judgments in the
cases of B.P. Singhal V/s Union of India reported
in 2010(6) SCC 331, Jeevanrao Vishwanathrao Gore
V/s State of Maharashtra and others reported in
2015(5) Mh.L.J. 375, Dnyaneshwar Digamber Kamble
V/s State of Maharashtra and others reported in
2016(1) Mh.L.J. 602 and Sampat Paraji Jawalkar
and others V/s The State of Maharashtra and
others in Writ Petition No.2949 of 2015 and other
connected matters (decided on 04.02.2016).
4. Mr.S.B. Yawalkar, learned A.G.P.
submitted that the appointment of the petitioner
is purely on the pleasure of the State
Government. Section 12(2) of the said Act gives
power to the State Government to cancel the
appointment of President, Vice-President and any
member of the Board. The provisions of the said
Act does not preclude the State Government from
exercise of it’s powers resorting to Doctrine of
Pleasure for nominating a more suitable person.
The petitioner has not preferred any
representation before the State Government for
seeking further details in respect of the
termination order. Learned A.G.P. further submits
that the present Petition is filed on assumption
that the State Government has not applied it’s
mind while cancelling the appointment of the
petitioner. He relied upon the judgment in the
case of Krishna Borate Vs. State of Maharashtra
reported in (2001) 2 SCC 441.
5. Mr.Kadethankar, learned counsel for
respondent no.4 supported the submissions of the
learned A.G.P.
6. We have carefully considered the
submissions canvassed by learned counsel for the
respective parties.
7. Before we advert to the propositions
put forth by learned counsel for respective
parties, it would be appropriate to refer to the
relevant provisions of said Act. The section 7 of
the Act reads as under :-
Section 7 :-
“The President, Vice-President
and every member shall, subject to
the provisions of this Act, hold
office for a period of three years
from the date of publication of his
appointment in the Official Gazette:
Provided that, the State
Government may, by a notification in
the Official Gazette, extend the
said period by a further period not
exceeding one year as may be
specified in the notification,
Provided further that, after the
expiry of the period or extended
period of his appointment, a person
shall, unless disqualified, be
eligible for re-appointment as the
President, the Vice-President or
such member, so however, that he
does not hold office for a period of
more than seven years in the
aggregate.”
8. This section empowers the State
Government to make appointment of the
President, Vice-President and every member by
notification in the Official Gazette for the
Board. The section 12(1)(b) empowers the State
Government to remove President, Vice-President
or any non-official member from their office.
The section 12 of the said Act reads as
under :-
Section 12 :-
(1) The State Government may, by
notification in the Official
Gazette, remove from office the
President, Vice-President or any
non-official member whoa)
is or has become, subject to any
of the disqualifications mentioned
in section 11, or
b) in the opinion of the State
Government, has been guilty of any
misconduct whether before or after
the appointment or neglect, or has
so abused his position as to render
his continuance as member
detrimental to the interest of the
Authority or of the general public,
or is otherwise unfit to continue as
member, or
c) is absent without permission of
the Authority for two consecutive
meetings of the authority:
Provided that, no person shall
be so removed from office unless he
has been given an opportunity to
show cause against his removal.
2) Notwithstanding anything
contained in Section 7 or other
provisions of this Act, the
President, the Vice-President and
other members shall hold office
during the pleasure of the State
Government, and the State
Government, if it appears to it to
be necessary or expedient so to do
in the public interest, may by order
remove all or any of them from
office at any time.
9. In the present case, the petitioner
is nominated as a Part Time Chairman of
Aurangabad Housing and Area Development Board
as per the notification published in the
Official Gazette dated 09.07.2019. As per
section 7 of the said Act, the petitioner is
entitled to hold the office for a term of
three years from the date of publication of
notification in the Official Gazette. However,
the State Government has removed the
petitioner from his post as Part Time Chairman
of the said Board vide publication in the
Official Gazette dated 31.01.2020 i.e. within
a period of three years. Section 12 of the
said Act, empowers State Government to remove
President, Vice-President and any non-official
member from their office by two way’s i.e.
under section 12(1)(a)(b) and 12(2). Under
section 12(1)(a)(b), removal can be done on
the ground of any disqualification mentioned
in section 11 of the said Act and on ground of
misconduct, abuse of position and continuance
of his membership is detrimental to the
interest of authority or general public or
unfit to continue as member. Petitioner has
not been removed under section 12(1) of the
said Act.
10. Reading the provisions of section
12(2) of the said Act, there is no manner of
doubt that appointed members of the said Board
like the petitioner hold the office at the
pleasure of the State Government and though
the term is of three years, they can be
removed at any time during the pleasure of
State Government.
11. Black’s Dictionary defines “Pleasure
Appointment” as the assignment of someone to
employment that can be taken away at any time
with no requirement for notice or hearing.
12. The petitioner is appointed by the
Government and the provisions of section 12(2)
of the said Act gives right to the State
Government to remove the petitioner at it’s
pleasure. The provision does not require the
State Government to adhear to the principles
of natural justice before cancelling his
membership nor it mandates issuance of any
show-cause notice. Once Doctrine of Pleasure
is applicable then neither the principle of
natural justice would step in nor any question
of giving opportunity before removal would
arise as has been held by the Hon’ble Apex
Court in the case of Krishna Borate (supra).
In this case, the Hon’ble Apex was dealing
with the pari materia removal of nominated
trustees under the Nagpur Improvement Trust
Act, 1936. It is held that where Doctrine of
Pleasure is applicable and removal of trustee
does not casts any stigma nor lead to any
penal consequences then in that case, the
petitioner cannot claim opportunity before
removal nor principle of natural justice would
apply.
13. We have perused Government Notification
dated 31st January, 2020. In this notification, it
is mentioned that Government of Maharashtra is of
opinion that it is expedient and necessary in
public interest to cancel the appointment of
above part time Chairman/Vice Chairman from the
said Board under provisions of Section 12(2) and
section 18(8) of the said Act. In said
Notification nowhere mentioned what is `public
interest’.
14. We have perused the affidavit in reply
filed by respondent no.1. In reply it is
mentioned that appointment of petitioner is
purely on the pleasure of the Government. It is
also mentioned that provisions of said Act does
not preclude the State Government from exercise
of it’s power resorting to Doctrine of Pleasure
for nominating a more suitable person. In said
reply no reasons are given for removal of
petitioner.
15. The question is even if "at pleasure"
doctrine is applied, then whether the State
Government has unbridled power of removal without
any cause or reason. Whenever the law bestows
discretion in any authority, the said discretion
cannot be an arbitrary or unregulated discretion,
but the same has to be exercised fairly. There
cannot be a concept of unfettered and unbridled
discretion, where the rule of law exists. The
Hon’ble Apex Court in a case of B. P. Singhal
(supra) has observed as under.
"22. The doctrine of pleasure as
originally envisaged in England was a
prerogative power which was
unfettered. It meant that the holder
of an office under pleasure could be
removed at any time, without notice,
without assigning cause, and without
there being a need for any cause.
But where rule of law prevails, there
is nothing like unfettered discretion
or unaccountable action. The degree
of need for reason may vary. The
degree of scrutiny during judicial
review may vary. But the need for
reason exists. As a result when the
Constitution of India provides that
some offices will be held during the
pleasure of the President, without
any express limitations or
restrictions, it should however,
necessarily be read as being subject
to the "fundamentals of
constitutionalism". Therefore in a
constitutional set up, when an office
is held during the pleasure of any
Authority, and if no limitations or
restrictions are placed on the "at
pleasure" doctrine, it means that,
the holder of the office can be
removed by the authority at whose
pleasure he holds office, at any
time, without notice and without
assigning any cause. The doctrine of
pleasure, however, is not a license
to act with unfettered discretion to
act arbitrarily, whimsically, or
capriciously. It does not dispense
with the need for a cause for
withdrawal of the pleasure. In other
words, "at pleasure" doctrine enables
the removal of a persons holding
office at the pleasure of an
Authority, summarily, without any
obligation to give any notice or
hearing to the person removed, and
without any obligation to assign any
reasons or disclose any cause for the
removal, or withdrawal of pleasure.
The withdrawal of pleasure cannot be
at the sweet will, whim and fancy of
the Authority, but can only be for
valid reasons.
48. The extent and depth of
judicial review will depend upon and
vary with reference to the matter
under review. As observed by Lord
Steyn in Ex parte Daly [2001 (3) All
ER 433], in law, context is
everything, and intensity of review
will depend on the subject-matter of
review. For example, judicial review
is permissible in regard to
administrative action, legislations
and constitutional amendments. But
the extent or scope of judicial
review for one will be different from
the scope of judicial review for
other. Mala fides may be a ground for
judicial review of administrative
action but is not a ground for
judicial review of legislations or
constitutional amendments. For
withdrawal of pleasure in the case of
a Minister or an Attorney General,
loss of confidence may be a relevant
ground. The ideology of the Minister
or Attorney General being out of sync
with the policies or ideologies of
the Government may also be a ground.
On the other hand, for withdrawal of
pleasure in the case of a Governor,
loss of confidence or the Governor's
views being out of sync with that the
Union Government will not be grounds
for withdrawal of the pleasure. The
reasons for withdrawal are wider in
the case of Ministers and Attorney-
General, when compared to Governors.
As a result, the judicial review of
withdrawal of pleasure, is limited in
the case of a Governor whereas
virtually nil in the case of a
Minister or an Attorney General."
16. In the present case, absolutely no
reason is forthcoming, nor the respondents have
come with case as to what was the cause for
terminating the Part Time Chairmanship of the
petitioner. The State Government can only
exercise this power on the basis of any relevant
and strong material to suggest that continuation
::: Uploaded on - 04/03/2022 ::: Downloaded on - 05/03/2022 10:18:56 :::
2852.20WP.odt
14
of such member would not be in public interest.
There should be reason for removal of member.
17. The powers of removal of the officebearers
of statutory board is to be exercised,
firstly to ensure that the circumstances exist
for the exercise of powers of removal and to
safeguard the institution from continuation of
such office-bearers.
18. As observed above, no reason has been
set out by the State Government for removal of
petitioner, when the admitted position is that
the removal of the petitioner is on account of
Doctrine of Pleasure. The law laid down by the
Hon’ble Apex Court in case of B.P. Singhal
(supra) would clearly apply to the facts of case
that withdrawal of pleasure cannot be at the
sweet will, whim and fancy of the authority but
can only be for valid reasons. Mere using the
word public interest can not become a ground for
removal of petitioner from the Board. There
should be valid reasons for removal.
19. In view of the above, we pass the
following order :-
ORDER
(i) The Writ Petition is allowed.
(ii) The impugned Notification dated 31.01.2020
and communication dated 11.02.2020 are quashed
and set aside.
(iii) We make it clear that the judgment and
order will not preclude the State Government from
taking appropriate action of removal of the
petitioner in accordance with law;
(iv) Rule is made absolute in above terms. No
costs.
(S.G.DIGE, J.) (S.V. GANGAPURWALA, J.)
No comments:
Post a Comment