2001 Supreme(SC) 394

2001(3) Supreme 179
SUPREME COURT OF INDIA
(From Punjab and Haryana High Court)
K.T. Thomas and R.P. Sethi, JJ.
State of Punjab & Ors. -Appellants
versus
Bhajan Singh & Ors. -Respondents
Civil Appeal No. 5 1558-59 of 2001
Decided on 27-2-2001
Counsel for the Parties :
For the Appellant : Rajiv Dutta, Sr. Advocate Kapil Sharma, Rajeev Sharma, Advocates.
For the Respondent : Nidesh Gupta, Naveen Singh, Ms. Naresh Bakshi, Advocates.

IMPORTANT POINT
The Principal Secretary to the Local Govt. Deptt. of the State of Punjab floated all norms, violatings statutory prvisiond relevant time depriving respondent No. 1, the elected representative of the people, to perform his dute first as member and them as the President of Samala Municipality (Punjab) and High Court rightly quashed his action.

Headnote:Punjab Municipal Act, 1911-Section 24-In action of Principal Secretary of the Local Govt. Deftt. to issue notification under-Despute election of the President and Vice President of the Municipal council Samrala (Punjab) held on 6.4.1998 no notification issued by the State Govt.-Writ petition in High Court praying for issuance of notification-Pending writ petition show cause issued u/s 16(1)(a) and in consequence by notification dated 9.4.1998 said secretary removed the resp No. 1 not only from president ship but also from the membership of the Nagar council, Samala-High Court quashed said notification and directed issuance of law notification-Appeal against-Agreement that state Govt. or the paid secretary had an option to notify as not to notify the election of President in official gazette-Whether tenable?(No)-Interpretation of proviso to Section 16(2) us to disqualifications and pointed out-Appeal dismissed.

       Held : We do not agree with the argument of Mr. Dutta that the State Government or the said Secretary had an unbriddled power or option to notify or not to notify the election of the President in the Official Gazette. Such an argument will not only be contrary to the concept of democracy and the rule of law but in fact flagrant violation of the mandate of the Act as incorporated in Sub-section (2) of Section 24 of the Act. A duty is cast upon the Government to notify in the Official Gazette every election of President of Municipality as is evident from the words "shall notify in the Official Gazette" used in the sub-section. The State Government has the authority to refuse to notify the election of a President, of any person who has incurred a disqualification under the Act or under any other law for the time being in force, subsequent to his election as Member of the Municipality provided that before refusing to notify the elections the State Government gives an opportunity of being heard to the concerned person. Admittedly, the State Government has failed to notify the election of the President in the Official Gazette without assigning any reason, much less "giving an opportunity" to the respondent No. 1. The omission and inaction of the said Secretary cannot be made a basis for frustrating the provisions of law and thereby nullifying the people verdict returned in an election conducted in accordance with the provisions of law applicable in the case. Even if the respondent No. 1 had allegedly incurred some disqualification, the State Government was obliged to inform him that his election as President of the Municipality could not be notified for the aforesaid reason. In the absence of such intimation, the omission to notify cannot be justified on such ground. (Paras 8 and 9)

       Held also : It may be noticed that Section 16 deals with the powers of the State Government to remove a member under the circumstances mentioned therein and does not refer to the disqualification mentioned in proviso (1) to sub-section (2) of Section 24 of the Act. We also do not agree with Mr. Dutta that Section 16 prescribes the disqualification referred to in the aforesaid proviso. It is also not correct to say that no other disqualifications are prescribed under the Act or under any other law and Section 16 of the Act is the only provision upon which the State Government can rely for taking action under sub-section (2) of Section 24 of the Act. It appears that the appellants have overlooked the provisions of the Punjab State Election Commission Act, 1994 which deals with the constitution of the State Election Commission and for vesting the superintendence, direction and control of the preparation of the electoral rolls for and in the conduct of all elections to the Panchayat and Municipalities in the State of Punjab and to provide for all matters relating to or ancillary or in connection with the provisions of the Panchayat and Municipalities in terms of the provisions of Part IX and IXA of the Constitution. Chapter IV in general and Section 11 in particular deals with the disqualifications for Membership of a Panchayat or Municipality. (Para 11)

       Held further : Disqualification contemplated "under any law for the time being in force" under proviso to sub-section (2) of Section 24 are, therefore, the disqualification as mentioned in Section 11 of the Punjab State Election Commission Act, 1994. The appellants have nowhere stated or alleged any such disqualifications attributable to the respondent No. 1. We also do not accept the plea of the appellants that by assuming his duties as President, the respondent had allegedly, "flagrantly abused" all his position as a member, thereby incurring the wrath of the State Government in terms of Section 16(1)(e) or Section 20 of th Act. The clause "flagrantly abused of his position as member" means the doing of such act or acts by a member of a committee in disregard of his duty which would shock a reasonable mind. The nature of the `abuse before it could be termed as `flagrant , must, in the circumstance be glaring, notorious, enormous, scandalous or wicked. There is nothing on record to show or suggest that the respondent No. 1 in his capacity as member or President took any undue advantage of his position or under the colour of his office committed any particular irregularity or reprehensive acts. Any alleged contravention of the provisions of the Act cannot be categorised as "flagrant abuse of power" by a member of the Committee. Ther mere contravention, if any, (which was not in this case) in respondent No. 2 entering upon his office as President before his name was approved and published in the Official Gazette, particularly on account of wilful omission of the State Government cannot be called either a `flagrant abuse of position as a member or `abuse of power within the contemplation of Section 16(1)(e) and Section 20 of the Act. (Paras 12 and 13)

       Held finally : The appeal which is berefit of any merit is liable to be dismissed. We are at pain to note that by his acts of omission and commission the said Secretary has consistently and persistently deprived the respondent No. 1 of the duty to assume and discharge his duties as member and President of the Municipal Council, despite his election from 2.1.1998 till date. The term of the office of the Municipality is a fixed term out of which three years of the respondent No. 1 have been wasted in uncalled for and forced litigation upon him. No law can compensate the loss of opportunity provided to the respondent No. 1 for serving the people after his election as Member and President of the Municipality. We find it a fit case to award exemplary costs and are of the firm view that such costs should not be burdened upon the State exchequer. The said Secretary who is responsible for the violation of the statutory provisions and weakening the concept of rule of law, is, therefore, personally liable to pay the costs from his own pockets. While dismissing this appeal we direct the said Secretary to personally pay the costs of Rs. 25,000/-to the respondent No. 1 within a period of two months. (Para 14)