Tewatia, J.:— The civic affairs of Coondapur village were managed by the Village Panchayat, of which one Smt. W. Fernandes was the Chairman before it was converted into a Town Municipal Council, Coondapur (hereinafter referred to as the ‘Council’). When it was so converted, the existing panchayat body was converted into an ad hoc council with Smt. W. Fernandes continuing as its President. The said ad hoc council managed the affairs of the council for about two and a half years when it was replaced by an elected body comprising of the petitioners and nine others, which body took charge on 1st August 1975, although the new committee had been elected some time in the month of June. It is alleged that during the interregnum between the election of the new committee and the taking over of the charge on 1st August 1975 by the said committee, the ad hoc committee, of which Smt. W. Fernandes was the President, passed various resolutions approving many schemes requiring the incurring of expenditure running into lakhs that the new elected committee finding it beyond the means of the council to finance all these schemes that had been approved by the ad hoc committee in the course of the said interregnum, decided to shelve the said resolutions by its resolution dated 18th August 1975; that Smt. W. Fernandes who, though had been elected as the member of the new council, but had failed to be elected as the president of the committee, wrote on 11th September 1975 to the Deputy Commissioner and to the Government, requesting the Deputy Commissioner to cancel the resolution dated 18th August 1975; that the Government by a letter dated 15th June 1976 turned down the representation made by Smt. W. Fernandes regarding the cancellation of the resolution of the council dated 18th August 1975 and also her request for supersession of the council, which had been urged by her in her subsequent representations; that however, the Government sent for the comments from the authorities including the Divisional Commissioner and the Deputy Commissioner regarding the contents of the letter dated 12th April 1976 addressed by Smt. W. Fernandes to the Minister for municipal administration; that the Deputy Commissioner required the Assistant Commissioner to submit his report who did so by his communication dated 18th June 1976 (Ext. G); and that the council was served with a show cause notice dated 6th August 1976 (Ext. F), to which it submitted a reply on 18th August 1976 (Ext. G). Thereafter, the Government passed the order dated 1st September 1976 (Ext. M) superseding the council, which led petitioner No. 1 who was then the president of the council and 9 other petitioners who were then the members of the council, to seek redress in this Court on the writ side against the impugned order of supersession of the council, inter alia, on the ground that the impugned order had not been passed in accordance and in compliance with the mandatory provisions of Section 316 of the Karnataka Municipalities Act, 1964 (hereinafter referred to as the ‘Act’), inasmuch as the order had been passed by the Government without applying its mind to the reply of the council to the charges contained in the show cause notice and that many of the defaults and lapses alleged against the present council were committed by the ad hoc council.

2. Before proceeding to deal with the contention advanced on behalf of the petitioners, it would be appropriate to notice the relevant provisions of Section 316 of the Act and the scope of the jurisdiction of the Court while dealing with a challenge to an order passed thereunder. The said provision reads thus:

“316. Power of Government to supersede a Municipal Council in certain circutances.—

(1) If, in the opinion of the Government any municipal council is not competent to perform, or persistently makes default in the performance of the duties imposed on it or undertaken by it by or under this Act, or any other law, or exceeds or abuses its power or refuses to carry out the directions given to it under the provisions of this Act or any other law, the Government may, by an order published, together with a statement of the reasons therefor, in the Official Gazette, declare the municipal council to be incompetent or in default, or to have exceeded or abused its powers, as the case may be, and may supersede it for such period as may be specified in the order:

Provided that before making an order of supersession as aforesaid reasonable opportunity shall be given to the municipal council to show cause why such order should not be made.

(The other provisos of the section are omitted as unnecessary).”

The scope of the power of intervention by the High Court would depend on the nature of the order passed under the kind of provisions which are contained in Section 316 of the Act. It has to be seen as to whether the order would be merely of an administrative nature, or judicial in character. The judicial consensus is that while an actual order of supersession is an administrative one, the conclusion arrived at to order the supersession has to be reached in a quasi-judicial manner, that is, where a statute speaks of affording of a reasonable opportunity to the local body proposed to be superseded before an order of supersession is passed against it, then, the content of opportunity required to be afforded, though may not be the same as is being afforded, in a Court of law, but, nevertheless it is expected to be such that any fair minded person would consider it just and fair in the circumstances of a given case. Again, when a statute envisages the order to be supported by reasons, then, the order which can be considered to satisfy the said requirement would be an order that would contain sufficient indication showing the manner in which points of fact and law raised by the superseded body in response to the show cause notice are dealt with, not of course in the very satisfactory manner a Court would do, but, nevertheless, in a manner, more particularly when the order is passed by the Government or by a high functionary thereof, that it would be intelligible and would be such that a reasonable man would consider convincing. The following observation of their Lordships appearing at page 1355 of the judgment in The State of Maharashtra v. Babulal Kriparam Takkamore(1) clearly and succinctly delienate the power of the Court:

“……In a writ application the court will not review the facts as an appellate body. But the order is liable to be set aside if no reasonable person on a proper consideration of the materials before the State Government could form the opinion that the corporation is not competent to perform, or persistently makes default in the performance of the duties imposed on it or under this Act or any other law for the time being in force, or exceeds or abuses its powers”. Likewise, the order is liable to be set a side if it was passed in bad faith or if in a case which was not one of emergency, due opportunity to show cause was not given to the corporation. In all such cases, the order is in excess of the statutory power under Section 408 and is invalid.”

3. Now the stage is set to see as to whether the impugned order satisfied the norms indicated by their Lordships. In order to see as to whether it does or does not, it would be necessary to first look into the charges, reply of the petitioner-council and the finding of the Government thereon as find mention in the impugned order. To begin with, let us start with the last charge on the list which is annexed to the show cause notice dated 6th August 1976 (Ext. F). This is in the following terms:—

“4. Failure to execute the following works sanctioned in spite of availability of funds at its disposal, due to sheer negligence and incapacity, denying the public of civic amenities:

(a) Repairs to Mission School Road;

(b) Reparis to Chikanasal Road:

(c) Culverts to Chicknasal and Jhansi Laxmi Roads;

(d) Construction of a clock tower near Shenoy Park; and

(e) Construction of Pubilc Urinals at Bus-stand.”

The petitioner's reply to this charge deserved to be reproduced in full, though it is a lengthy one. It runs as follows:

“Charge No. 4.—There was a junior engineer attached to the municipality almost till the present administration took office. A short while before the present administration took office he had been promoted and transferred to Karkal. So, when the present administration took office there was no engineering staff. The Government took no steps to post a substitute to the municipality. The present administration took office on 1st August 1975. On the very second day, i.e, on 2nd August 1975, the present president addressed a letter to the Divisional Commissioner, Mysore, No. ROC 81/75-A, dated 2nd August 1975 asking for an overseer but no reply has been received for the same. A second letter was addressed to the Divisional Commissioner by the president asking for an overseer and no reply was received for this also. The president addressed a D.O letter again on 15th October 1975 to Divisional Commissioner asking for the posting of an overseer. The Divisional Commissioner after the third letter, sent a copy of his letter addressed to the Chief Engineer, Roads and Communications in which he requested the posting of an overseer to the Coondapur Municipality. His letter to the Chief Engineer is dated 7th November 1975, a copy of which was received in the municipality on 15th November 1975. It is seen from the memorandum of the Chief Engineer sent to the president, dated 4th December 1975 that an overseer has been posted and placed at the disposal of the municipality. This order was received by the president on 6th December 1975. In spite of repeated reminders of the municipality, the junior engineer failed to join duty in the municipality till 12th April 1976. In the meanwhile since the posited gentleman did not come and join, the municipality addressed the Assistant Commissioner, Coondapur, to spare the service of the Coondapur Taluk Board Overseer temporarily, in his letter dated 18th November 1975, to prepare estimates for the necessary works. The service of the overseer were lent for a short period. He prepared the estimates of a few patchworks and then it was stated that his duties in the taluk board did not allow him to continue in the municipality. The president addressed the Chief Engineer, Bangalore, on 18th December 1975 and Superintending Engineer, Mangalore, on 7th January 1976. The Chief Engineer wrote to the president stating that he had asked the S.E Mangalore to relieve the gentleman posted in Mercara; The S.E Mangalore replied that as the gentleman posted is in Mercara; he had addressed the E.E Coorg to relieve him. The gentleman posted was actually relieved by the A.E Mercara on 1st April 1976 and he actually jointed the municipality on 12th April 1976. In the meawhile, the municipality had requested the Assistant Engineer to prepare estimates etc., of the municipalit. The A.E in his letter dated 10th July 1976 wrote, stating that since there was inadequate staff with him, he was unable to spare the services of the engineering staff to the municipality (a copy of the letter is enclosed).

4. The municipality persistently took every step in every direction to get the services of an overseer temporarily or otherwise, at least to commence the works of the municipality. It did not strike us that there was anything more was humanly possible and the present complainant who was a member of the municipality and who was fully aware of all our efforts to get an overseer by any means, never cared to suggest a more appropriate way of getting things done.

5. Regarding the specific works, we will take up the repair of 4(a), (b), (c)—the estimate of mission school road sent to the Ex. Engr. Udipi by the previous municipality has not been received back. After joining the services of the municipality, on 12th April 1976, the new overseer prepared the estimates of twelve works within which, repairs to mission school road, repairs to chikkansal road and culvert to chikkansal road were prepared. They were placed before the municipal meeting dated 3rd May 1976 and all the twelve works were sanctioned. A copy of the resolution are enclosed. Immediately after the technical scrutiny was done, tenders were called for and works entrusted to contractors by 26th June 1976. Works have commenced by the first week of July 1976. The repairs of Chikkansal road was already completed and amount has also been paid.

6. One grievous error, deliberate or otherwise, has been committed while mentioning the failure of completion of works, under 4(c). There is an item of work ‘culvert to Jhansi Laxmibai road’. This specific work had been completed in the year 1974 and payment of Rs. 1,735-49 had been made to the contractor on 7th March 1974. So, this is a piece of fiction.

7. Regarding the work 4(d) i.e, construction of a clock tower near the Shenoy park, the proposal had been cancelled by the municipality in its meeting dated 18th August 1975. This matter was agitated by the ex-president and her group along with some other matters and after a prolonged enquiry the Government have accepted the action of the municipality in its letter dated 16th June 1976. We do not know how this matter can be agitated again and the municipality penalised.

“Regarding the work 4(e), construction of public urinals at bus stand the relevant estimate was sanctioned by the municipality and sent for technical scrutiny to the office of the executive engineer, Udipi, long before the present municipality took the office. They raised objections to the same and so far the estimate has not been fully scrutinised and sent back. The present overseer has prepared a new estimate for this work for Rs. 16,000 and same has been sanctioned in the meeting dated 14th June 1976 and sent for technical scrutiny to the executive engineer Udipi. This work will be taken up as soon as the estimate is received back after scrutiny.”

8. The finding of the Government on the aforesaid explanation of the petitioner-council regarding the said charge is in these words:

“The municipal council has not denied that it has not got the said works executed except the Jhansi Lakshmi Bai Road. Their contention regarding other is that they have sent estimates for technical scrutiny. This can hardly be an excuse. The council should have taken expeditious Steps in the matter. The charge is proved”.

The perusal of the aforesaid finding would reveal that not even a word is said about the explanation offered by the petitioner-council for not being able to initiate the construction, of the works listed in the charge. Their explanation was that from the day the municipal council had taken over charge there was no overseer or junior engineer with the council. The explanation would show that within a very few days of their taking over charge, the council had asked for the appointment of a technical man of the aforesaid nature and despite their having brought heaven and earth together, as the correspondence would show, the urgent request fell on deaf ears and the overseer appointed finally did not take charge of the job before 12th April 1976, Soon thereafter, as the explanation of the petitioner-council would show, it moved into the matter quickly. From the finding of the Government on this charge, it is clear that it did not at all apply its mind to the explanation offered by the council. Had it done so, it is unthinkable that any reasonable person would have come to the conclusion that it had come and lay the blame on the petitioner-council.

Charge No. 3 reads as follows:

“3. Failure to maintain public parks, gardens and the children's corner.”

This charge, to say the least, is vague in nature. The petitioner-council refuted the charge by saying that immediately on taking over the charge, it, with the help of the N.C.C councillors and the public completely cleaned and renovated the parks, gardens and children's corners and they had spent Rs. 300 in the process. The finding of the Government on this charge runs as follows:

“The municipal council has contended that it had spent a sum of Rs. 300 to maintain public park, gardens etc. Obviously, this is paltry. The municipal council has clearly failed in its duty. The charge is proved.”

As already observed that the charge itself was very vague in that it was not specified as to how the council had failed to maintain public parks, gardens and children's corners; nor had it mentioned in the order as to how the sum of Rs. 300 was a paltry amount for maintaining the parks, gardens etc. One is totally in the dark as to the dimensions of the parks and gardens as also in what condition they were and in what condition they ought to have been.

10. Charge No. 2 is as under:

“2. Failure of the Town Municipal Council to provide proper lighting and other amenities”

The reply of the petitioner-council again deserved to be noticed in full. It runs thus:

“Charge No. 2.—At the time when the panchayat was converted into municipality, there were only 74 tube lights and 210 bulbs in the town. After the conversion of the panchayat into municipality, the previous administration was in office for nearly two and half years. When they gave charge to the present administration about one year ago, the lighting system in the municipality consisted of exactly 74 tube lights and 210 bulbs, not more or less. So, it will be seen during the rule of 2½ years of the previous administration, they did not feel it necessary to add a single bulb or tube light to the existing system of lighting which they inherited from the panchayat. The present administration took charge on 1st August 1975. Within six months of their taking charge, they had sanctioned 104 tubelights and 191 bulbs. It was done as and when they felt the addition was necessary. Over and above that, the municipality has sanctioned in addition 25 tubelights to be fitted whenever necessary. This proposal was vehemently opposed by the ex-president and her group, but passed despite the opposition. Long before the present allegation was made, the additional tubelights have been sanctioned and installed. This will be clear by the resolution of the municipality copies of which are enclosed herewith. It will be seen that as against 74 tubelights that existed on the date of handing over charge by the previous president, there are now 178 tubelights in the town and as regards the bulbs as against 210 that existed then, 401 are there are present. How the municipality has failed (in the past one year) to provide proper lighting passes ones understanding. Along the main roads of the municipality, every pole has been fitted with a tubelight and in every lane approximately every alternate pole has been fitted either a tubelight or a bulb. This charge has done gross injustice to the working of the municipality.”

The finding of the Government on this charge is in these terms:

“………The Municipal Council has contended that after the town panchayat became a municipal council they have provided adequate lighting and other amenities. Factually this is not so and this contention is not acceptable. The charge is proved.”

11. Charge No. 2 also in its nature is vague in that there was no mention as to how the municipal council had failed to provide proper lighting and what other amenities it was required to provide and which it had not provided. In the finding also, no inkling is given as to how the explanation was not acceptable. The petitioner-council has given facts and figures. It was open to the Government to say that number of tubelights and bulbs that are alleged to have been added to the existing ones by the municipal council were not in fact so added. The explanation of the council was not simply a vague one that they had provided adequate lighting and other amenities as was noticed in the finding and disposed of by saying that factually that was not so. The council, as already observed, had given verifiable facts in its explanation and those facts ought to have been either refuted or accepted.

12. It is on charge No. 1 that the learned counsel for the respondents has taken strong stand. He has urged with some vehemence that this charge had been satisfactorily established. This charge is in the following terms:

“1. Failure of Town Municipal Council. Coondapur, to collect arrears of taxes, out of the total taxes of Rs. 2,25,376-46. The council has collected only Rs. 1,11,923-40.”

13. The stand taken by the petitioner-council in its explanation in this regard is that when the existing town panchayat was turned into a municipality, it inherited the arrears of taxes to the tune of Rs. 89,015-11; that Smt. W. Fernandes had been the chairman of the said town panchayat for the last about 8 to 9 years preceding its transformation into a municipality and after it was so transformed she become the chairman of the Ad hoc Town Municipal Council; that the current demand of taxes for the first year was Rs. 1,58,821-06 and the total taxes collected for that year were to the tune of Rs. 1,36,133-97 which fact swelled the arrears, which it had inherited to Rs. 1,11,692-20; that the current demand for the second year was Rs. 1,53,615-94 and the total collection of taxes was Rs. 1,41,810-08 with the result that the arrears mounted up to Rs. 1,23,498-06. During all this period, Mrs. W. Fernandes was the chairman of the municipal council. The demand for the third year, that is 1975-1976, the year in which the present elected municipal council had taken over from the ad hoc council on 1st August 1975, the current demand was Rs. 1,63,784-50 while the total collection for the year was Rs. 1,73,828-50. It was further mentioned that on the staff of the council there were only three bill collectors, one of them remained on sick leave for over four months and collected hardly Rs. 14,000 approximately (as seen from the record of the municipal council, he collected Rs. 11,273-30 and he was on leave for a period of about 169 days). The petitioner-council further mentioned that it had asked for an additional bill collector from time to time but that request was not acceeded to by the Government.

14. The finding of the Government regarding this charge is cryptic and runs thus:

“The Town Municipal Council has contended that it was for want of adequate staff that the taxes, could not be collected in full. This is not at all tenable and the charge is proved.”

The aforesaid finding of the Government on this charge reveals that hardly any consideration has been shown to the fact (1) that one of the three bill collectors had been on leave during the year for a total period of 169 days; (b) that if there had been three hundred more khatas, then the municipality, as a matter of right, would have been entitled to the services of four bill collectors in terms of the Karnataka Municipalities (Delegation of powers, executive Functions, Duties and Determination of Staff), Rules, 1973, Item V, Schedule II and (c) that despits the said handicap, the collection in the given year had been almost Rs. 42,000 more than the previous year and rising graph of arrears had not only been checked but the arrears it had inherited from the previous year had been reduced by about ten thousand rupees.

15. From the records of the municipality, which the learned counsel for the responents had produced in Court, it is seen that on 13th September 1975, that is, almost a month after the elected body had taken over the charge, it passed a resolution and addressed a copy thereof to the competent authority, that is, the Divisional Commissioner, for sanctioning of additional staff which included the post of one bill collector. The resolution and the covering letter were routed through the Deputy Commissioner, which was the proper channel. The Deputy Commissioner wrote to the Divisional Commissioner in this regard on 22nd June 1976 refusing to accede to the request of the council for sanctioning the post of an additional bill collector. The council then on 3rd July 1976 directly wrote to the Divisional Commissioner impressing upon him the extreme desirability of the appointment of an additional bill collector.

16. If on the facts furnished by the council in its explanation and those that were available on the record of the municipality a fair approach had been brought to bear, then, no reasonable person could have come to the conclusion which had been arrived at by the Government in its finding on this charge, much less to a conclusion in terms of Section 316 of the Act, which refers to the incompetency of the council or persistent default in performance of its duty under the statute or under any other law. The council had been in existence hardly 2½ years and the elected body had hardly assumed the charge when the authorities came to be flooded with letters aforesaid, by no other person but the one who had been at the helm for the preceding 2½ years, regarding the incompetency of the council. The first letter containing allegations was sent to the authorities when the elected body had been in office only for about a month and half. The elected council had not been in the office even for full one year when it was served with the show cause notice on 6th August 1976 and then removed from the office.

17. Having regard to the fact that when the municipal council came into existence it inherited arrears mounting to Rs. 89,015-11 and the further fact that it had been in existence for a very short period, it cannot be said that the council had been persistently incompetent or defaulting in the performance of its duty, in so far as the collection of the taxes is concerned, more particularly such a charge could not justifiably be laid against the council in the year 1975–1976 when its performance in this regard was commendable when judged in the light of the fact that the current demand in that year was about Rs. 10,000 more than the current demand in the previous year and yet it had been able to reduce the arrears by Rs. 10,000.

18. The provisions of Section 316 of the Act, in my opinion, can be attracted to a municipal council which had not only defaulted in the performance of its duty at the time when it was sought to be superseded but had been so default for some time; the said provisions would not be attracted to a municipal council which either had been doing excellantly in the past, except in the given year, or to the one which although had not been doing so well in the past but had turned the corner in the given year and had shown excellant result, for at that time it can neither be said that the council was incompetent to perform its duty nor that it was continuing to default in the performance of its duties. The conclusion arrived at by the Government on any of the charges, individually or collectively, is such as could not have been arrived at by any reasonable person on a proper consideration of the material before the Government.

19. For the reasons stated, the impugned order was clearly illegal and totally vitiated. In the result, the writ petition is allowed with costs and the impugned order is quashed.

20. At this stage, the learned counsel for the respondents made an oral request for the stay of the operation of the order passed by me for three weeks to enable the Government to file an appeal against the order. I find no merit in his submission, for the allegations against the petitioner-council did not involve any misconduct nor were such as to render it risky to allow it to handle the affairs of the municipality, and, therefore, no wrong would be done if the elected body, which had a right to manage the affairs of the council, is again back in the saddle in the place of an official nominated by the Government.