Discretion Of Any Authority Cannot Be An Arbitrary Or Unregulated; To Be Exercised Fairly: Bombay High Court

The petitioner is appointed as a Part Time Chairman of Aurangabad Housing and Development Board, Aurangabad ("the Board") by the State Government. On 31st January, 2020, a notification was issued under the Maharashtra Housing and Area Development Act, 1976 ( "the said Act") by State Government and the appointment of the petitioner as Part Time Chairman was cancelled.

Aggrieved by it 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. 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 its powers has to notify the reasons.

Petitioner relied upon 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).

Respondent relied upon the judgment in the case of Krishna Borate Vs. State of Maharashtra reported in (2001) 2 SCC 441. 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 was 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.

The bench noted that 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."

In this light, the bench observed that "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 cannot become a ground for removal of petitioner from the Board. There should be valid reasons for removal." Stating so, the bench quashed and set aside the Notification dated 31.01.2020 and communication dated 11.02.2020.