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CASE NO.:

Appeal (civil) 788 of 2001

PETITIONER:

KRISHNA S/0 BULAJI BORATE

RESPONDENT:

STATE OF MAHARASHTRA AND ORS.

DATE OF JUDGMENT: 23/01/2001

BENCH:

A.P. MISRA & D.P. MOHAPATRA

JUDGMENT:

JUDGMENT

2001 (1) SCR 504

The Judgment of the Court was delivered by

MISRA J. Leave granted.

This appeal raises the following question:

"Whether Section 6 of the Nagpur Improvement Trust Act, 1936 (hereinafter

referred to as the 'Act') confers power on the State Government independent

of the power of State Government under Section 10; to remove the Trustees

appointed under Section 4(1 )(e) at the pleasure of the Government even

before the Trustee concerned completes a period of five years."

This appeal is directed against the judgment and order of the High Court

which dismissed the appellant's writ petition challenging the order dated

9.2.2000 passed by the State Government (respondent no. 1), removing the

appellant from the trust (respondent no. 2) created under the aforesaid

Act, The Preamble of the Act suggests, the Act was brought on the statute

book to provide for the improvement and expansion of the town of Nagpur The

second respondent-trust was created under Section 3 of the said Act.

Section 4 provides that the trust shall consist of nine Trustees of which

one shall be the Chairman. Out of nine such Trustees four persons are

appointed including the Chairman by the State Government under Sub-section

(2) of Section and 4 out of the said four persons not less than two shall

have to be non-officials residing with in the limits of the area to which

this Act applies. In the present case we are concerned with Clause(e) of

sub-section (1) of Section 4 to which the appellant belongs. Section 6

specifies about the term of the Chairman and the Trustees appointed under

Clause(e) of sub-section (1) of Section 4. It provides that term of the

office under it of the Chairman and of any Trustee shall be five years and

both the Chairman and such Trustee may be removed from the office by the

State Government at any time before completion of such term. Section 10

provides for the removal of Trustees, a provision which would fall for

consideration along with Section 6 of the Act. For the purpose of

appreciating the controversy we are here under reproducing Sections 4 (l)

(e), 4(2), 6 and 10:-

"Section 4(1)(e): Four persons appointed under sub-section (2) of whom not

less than two shall be non-officials residing within the limits of the area

to which this Act applies.

Section 4(2): The Chairman and the four persons referred to in clause (e)

of sub-section (1) shall be appointed by the State Government by

notification.

Section 6: The term of office of Chairman or of any Trustee appointed under

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clause (e) of sub-section (1) of Section 4 shall be five years, provided

that the Chairman or any Trustee may be removed from office by the State

Government at any time before the completion of such term.

Section 10: The State Government may remove from the Trust any Trustees

other than an ex-officio Trustee who-

(a) refuses to act, or becomes incapable of acting as a Trustee, or

absents himself without the permission of the trust for more than three

consecutive months from the meeting of the Trust or of any Committee of

Which he is a member and is unable to explain such absence to the

satisfaction of the Trust, or

(b) is an undischarged insolvent or has compounded with his creditors,

or

(c) has been sentenced by a Criminal Court to imprisonment for as term

exceeding six months or to transportation, or has been ordered to find

security for good behaviour under the Code of Criminal Procedure, such

sentence or order not having subsequently being reversed or remitted or the

offender pardoned, or

(d) has acquired or continued to hold without the permission in writing

of the State Government directly or indirectly or by a partner, any share

or interest in any contract or employment with, by or on behalf to the

Trust or the Municipal Committee,

or

(e) has acted as a trustee in a matter other than a matter referred to

in clause (iv) or clause (v) of the proviso to this sub-section in which he

had either directly or indirectly, a personal interest, as a partner,

employer, agent or counsel, or

(f) has added in contravention of Section 20 or

(g) being a legal practitioner, in any suit or other proceedings, acts

or appears on behalf of any other person against the Trust, or acts or

appears on behalf of any other person in any criminal proceedings

instituted by or on behalf of the Trust:

Provided that a person shall not be deemed for the purpose of this sub-

section to acquire, or continue to have, any share or interest in a

contract or employment by reasons only of his

(i) having a share or interest in any lease, sale or purchase of land or

buildings, or in any agreement for the same provided that such share of

interest was acquired before he became a Trustee, or

(ii) having a share in a joint stock company which shall contract with, or

be employed by or on behalf of, the Trust, or

(iii) having a share or interest in a newspaper in which an advertisement

relating to the affairs of the trust is inserted, or

(iv) holding a debenture or otherwise being interested in a loan raised by

or on behalf of the trust, or

(v) having a share or interest in the occasional sale of an article in

which he regularly trades to the Trust to a value not exceeding, in any one

year, such amount as the Trust, with the sanction of the State Government,

may fix in this behalf.

(2) the State Government may remove from the Trust a trustee who in its

opinion has so flagrantly abused in any manner his position as a Trustee as

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to render his continuance as a Trustee detrimental to the public interest.

(3) Wherever the State Government proposes to take action under the

foregoing provisions of this section, an opportunity of explanation shall

be given to the Trustee concerned, and, when such action is taken the

reasons therefor shall be placed on record.

(4) A Trustee, who remains absent without the permission of the Trust for

more than three consecutive months from the area to which this Act extends,

shall be deemed to have resigned his office."

On 4.10.1996 the appellant was appointed as Trustee of the second

respondent by the first respondent under sub-section (2) of Section 4 of

the Act and his term was to expire on 3.10.2001. The submission for the

appellant, incorporated in this appeal is, that after electron of State

Legislature Assembly, new national democratic Government came into power in

the State of Maharashtra and started undoing what was done by the previous

Government under pressure of various political parties. On 9.2.2000

respondent no. 1 passed an order removing the appellant from the office of

Trustee. The order reads hereunder:

"In exercise of powers conferred on the Government by Section 6 of the

Nagpur Improvement Trust Act, 1936 (C.P. & Berar Act No. XXXVI of 1936) the

Government of Maharashtra from the date of this Notification cancel the

appointment of S/Shri Pravin Barde and Krishna Bulaji Borate, Nagpur as the

Trustee of the Nagpur Improvement Trust.

By the order and in the name of the Governor of the Maharashtra

State."

This order was challenged by the appellant through a writ petition before

the High Court. The High Court dismissed the writ petition (impugned order)

by holding that Section 6 is an independent power for the removal of a

Trustee falling under Section 4(1) (e), notwithstanding what is contained

in Section 10. The initial appointment of the appellant is under Section

4(2) which is under the doctrine of pleasure hence in such termination

there could be no question of violation of any principle of natural

justice. It further held, when power is exercised u/s 6, the provisions of

Section 10 are not attracted. Hence before the impugned order there would

not arise any question of giving opportunity, in effect there cannot be any

violation of the principle of natural justice. Aggrieved by this the

appellant has filed the present appeal.

Learned senior counsel Mr. P.G. Palshikar, appearing for the appellant

submits, Section 6 specifies the tenure of a Trustee which is for a period

of five years and removal referred therein could only be after following

the procedure specified under Section 10. In other words, Section 6

empowers the State Government to remove but it could only be done through

the procedure as specified under Section 1.0. He submits both Section 6 and

Section 10 use the word 'remove' and being under the same chapter same

meaning should be given. The submission is, it is not in dispute that the

appellant was removed as a Trustee without giving any opportunity, hence it

is violative of the principle of natural justice. Further in the absence of

any such explicit words in Section 6, the doctrine of pleasure could not be

applied.

On the other hand learned Attorney General Mr. Soli J. Sorabjee submits

that s.6 carves out a separate field for its application and is only for

such Trustees appointed under Clause (e) of sub-Section (1) of Section 4.

Section 10 refers to the removal of Trustees other than ex-officio

Trustees. The distinguishing feature is, there is no stigma while removing

a Trustee under Section 6 but there is when removed under Section 10.

Though Section 6 does not explicitly state that removal is at the pleasure

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of the Government but is implicit within its frame and texture, This is

reinforced by the fact that the appointment under Clause (e) of sub-section

(1) of Section 4 is by way of nomination. The submission is, it is

significant when Section 6 specifies tenure of such trustee to be of five

years it also confers power to curtail it at any time before the completion

of such term. This later power of removal of such nominated Trustee,

implicitly reveals it to fall under the doctrine of pleasure.

In the present case, the appellant was appointed under sub-section (2) of

Section 4 read with Clause (e) of sub-section (1) of Section (4) and was

removed by order dated 9.2.2000 under Section 6 of the Act. Having

considered the submissions for the parties and after perusing the language

of the sections. We have no hesitation to hold, that the field of Section 6

and Section 10 are separate. The removal spoken under Section 6 is removal

without any stigma while the removal under Section 10 is removal with penal

consequences attaching stigma. If submission for the appellant is accepted,

viz. Section 6 empowers and Section 10 lays down condition and procedure to

remove then removal of trustee could only be for penal consequences and not

otherwise, If that be so, there could be no reason to enact Section 6 as

Section 10 covers such cases. It is significant, the removal under Section

6 is confined only to such Trustees who are covered under Clause (e) of

sub-section (1) of Section 4 and who are also nominated by the State

Government. Rights of trustees falling under the aforesaid Clause (e) are

rights created under a statute and hence that very creator can always

limits or curtails such right. In such cases, if a Trustee is removed, he

cannot project any grievance that no opportunity was given to him. If any

right which is creature of statute, is limited or curtailed by that very

statute in the absence of any other right under that very statute or the

Constitution of India, such Trustee cannot claim any right based on the

principle of Natural Justice.

The removal spoken here neither casts any stigma nor lead to any penal

consequences. This clearly reveals doctrine of pleasure which is implicit

in this section. In any statute expression of the will of the legislature

may be explicit or it may be implicit It is open for the courts, while

interpreting any provision to spell or read with other provisions of the

statute if so intended to read implicitly, in the absence of any explicit

words that subserve the intent of the legislature.

In the present statute Section 6 refers to the trustee falling under Clause

(e), sub-section (1) Section 7 refers to Trustees falling under Clauses (b)

and (c) and sub-section (2) refers to Trustees falling under Clause (d) and

sub-section (3) refers to Trustees falling in Clause (f) of sub-section (1)

of Section 4 and Section 10 refers to cases of removal of trustees by way

of stigma, and Section 11 refers to the disability of such removed

trustees. In view of this we have no hesitation to hold that removal of

Trustee under Section 6 is based on the principle of doctrine of pleasure.

We may only strike a note here if the legislature would have used some

other words for the word 'removed' for expressing curtailment of the tenure

of such trustee in Section 6, this possible confusion would not have

arisen.

Once doctrine of pleasure is applicable neither the principle of natural

justice would step in nor any question of giving opportunity before removal

would arise. It is significant when stigma is cast then SUB-SECTION (3) of

Section 10 specially provides for giving an opportunity to such incumbent

before passing an order of removal under Section 10, while there is no such

corresponding sub-section under Section 6. Thus intent of legislature is

very clear which reinforces the inference which we have drawn that doctrine

of pleasure is implicit under Section 6. In Om Narain Agarwal and Ors. v.

Nagpur Palika, Shahjahanpur and Ors., [1993] 2 SCC 242, this Court was

considering the provisions of Section 9 of the U.P. Municipalities Act,

1916 as introduced by U.P. Act 19 Of 1990, which made provision for the

nomination of two women members by the State Government, and fourth proviso

provides that the nomination of such two members is at the pleasure of the

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State Government This Court held:

"The initial nomination of the two women members itself depend on the

pleasure and subjective satisfaction of the State Government. If such

appointments made initially by nomination are based on political

considerations, there can be no violation of any provision of the

Constitution in case the legislature authorised the State Government to

terminate such appointment at its pleasure and to nominate new members in

their place. The nominated members do not have the will or authority to any

residents of the Municipal Board behind them as may be present in the case

of an elected member......But so far as the nominated members are

concerned, the legislature in its wisdom has provided that they shall hold

office during the pleasure of the Government. It has not been argued from

the side of the respondents that the legislature had no such power to

legislate the fourth proviso. The attack is based on Articles 14 and 15 of

the Constitution.

In our view, such provision neither offends any Article of the Constitution

nor the same is against any public policy or democratic norms enshrined in

the Constitution. There is also no question of any violation of principles

of natural justice in not affording any opportunity to the nominated

members before their removal nor the removal under the pleasure doctrine

contained in the fourth proviso to Section 9 of the Act puts any stigma on

the performance or character of the nominated members. It is done purely on

political considerations."

This decision clearly covers the point-as against the appellant. Learned

senior counsel for the appellant tried to distinguish this case by

submitting that doctrine of pleasure was incorporated in the section

itself. In our opinion this does not make any difference. It may be in this

case doctrine of pleasure is explicit but if on another statute it is

implicit, which we have held in this case, the same principle would be

equally applicable. Accordingly we do not find any merit in this

submission.

For the aforesaid reasons we hold the present appeal has no merit and the

High Court was right in dismissing the writ petition filed by the

appellant. We hold the removal of the appellant as Trustee of the second

respondent by order dated 9.2.2000 was valid. The appeal is dismissed Costs

on the parties.