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2004(1) JLJ 411
Rajendra Menon, J.
Rajiv Sharma v. State of M.P. and others
W.P. No. 2809 of 2002;
Decided on 13.5.2003.
Petitioner, a elected President of Municipal Council, Ambah District Morena, has called in question tenability of an order dated 12.12.2002, passed by the State Government vide Annexure P-4-A, removing him from the post of President, in exercise of the powers conferred under section 41-A of the Madhya Pradesh Municipalities Act, 1961. [Para 1
Held: From the records it is seen that the petitioner in his individual capacity has not done anything in the matter except for directing of placing the matter before the President-in-Council. As already indicated above, there is nothing on record to indicate that the petitioner tried to misuse his office for getting some undue benefit to any person. In that view of the matter, it cannot be said that for the purpose of auctioning the shops and in connection with the charge No. 3 and charge No.5, the petitioner has committed any irregularity. [Paras 22 & 23
(2) Municipalities Act, 1961 (M.P.) -- S. 41-A -- M.P. Municipalities (Remuneration and Allowances to Council) Rules, 1995 -- R. 4 -- prior approval of State Government not taken for travelling outside the State -- visit made for the work of Council -- endorsement made on TA/DA bill to refer the same to State Government --case is not covered by S.41-A. [Para 17
(3) Municipalities Act, 1.961 (M.P.) -- S. 41-A -- keeping two telephones and excess bills -- President did nothing to instal two telephones -- writing that bills be sanctioned and paid only as per rules -- charge not sufficient to remove him. [Para 18
(4) Municipalities Act, 1961 (M.P.) -- S. 41-A -- charge of mutation of property -- only action of various officers approved -- petitioner cannot be held guilty -- no irregularity committed by petitioner. [Para 25
(5) Municipalities Act, 1961 (M.P.) -- S. 41-A -- removal of elected president -- public interest has to be viewed objectively -- continuation of such person should be undesirable -- invoking power of removal under -- has serious civil consequences -- such order -- when permissible.
Judicial review in the present case has to be undertaken keeping in view the fact that the power under section 41-A of the Act of 1961, is to be exercised by the State Government for removing an elected office bearer from his office. Meaning thereby that the State Government is acting against the wishes and mandate of the people who have elected the incumbent into office. Accordingly, the opinion with regard to feasibility of keeping such a person in office or the desirability of removing him in public interest has to be viewed objectively and the irregularities or allegations alleged should be of such serious nature and of such magnitude that continuation of such a person is undesirable. ... The consequence of exercise of power which is to be invoked by the State Government has serious civil consequence not only on the status of the person concerned but of his future prospects also and as no sufficient guidelines have been prescribed, State Government has to invoke the power only if strong and cogent reasons arc available. (2001) 6 SCC 260 followed. 1999(1) JLJ 277 and W.P. No. 1976/2002 relied on. [Paras 5 & 13
(6) Municipalities Act. 1961 (M.P.) -- S. 41 -A -- order of removal president -- judicial review -- powers when can be exercised.
In matters concerning removal of democratically elected people this Court can very well look into. the matter to find out whether the removal is based on cogent and compelling reasons, whether interest of the public interest of the counsel have been properly considered whether material on the basis of which action has been taken of such nature (hat the persons can be held to be responsible for having misused Iris office to such an extent that retaining him in the office will have serious and far reaching consequences in the interest of the Council and ultimately the public at large. 1999(1) ILJ 277 relied on. 1980 JLJ 69 (FB) distinguished. [Para 13
(7) Constitution of India -- Art. 226 -- alternative remedy of review before the same authority -- is not an efficacious alternative remedy. [Para 14
¼1½ uxjikfydk vf/kfu;e] 1961 ¼e-iz-½ && /kkjk 41&d && e-iz- uxjikfydk ¼LFkkoj laifÙk dk varj.k½ fu;e] 1996 && fu- 4 rFkk 5 && nqdku dh uhykeh && fu;ekuqlkj lekpkji=ksa esa lwpuk izdkf‘kr rFkk uhyke eq[; uxjikfydk vf/kdkjh }kjk lapkfyr && ;kph fdlh Hkh le; oS;f"Vd :i ls varoZfyr ugha && ifj"kn~ dks vkfFkZd gkfu igq¡pkus dk vkjksi vk/kkjjfgr gSA
uxjikfydk ifj"kn~ vaokg] ftyk eqjSuk ds fuokZfpr v/;{k&;kph us mikca/k ih&4&,] jkT; ljdkj }kjk ikfjr vkns‘k fnukad 12-12-2002 dh ekU;rk dks iz‘uxr fd;k gS] ftlds }kjk mls e-iz- uxjikfydk vf/kfu;e] 1961 dh /kkjk iz‘uxr fd;k gS] ftlds }kjk mls e-iz uxjikfydk vf/kfu;e] 1961 dh /kkjk 41&d }kjk iznÙk ‘kfDr;ksa dk iz;ksx djrs gq, v/;{k in ls gVk;k x;k gSA ¿ iSjk 1À
vfHkfu/kkZfjr % vfHkys[k ls irk pyrk gS fd ;kph us viuh oS;f"Vd gSfl;r esa izsflMsaV&bu dkmfUly ds le{k ekeyk j[kus dk funs‘k nsus ds flok; ekeys es dqN&Hkh ugha fd;k gSA tSlk fd Åij bafxr fd;k tk pqdk gS] vfHkys[kxr ,slk dqN ugha gS ftlls ;g minf‘kZr gksrk gks fd ;kph us fdlh O;fDRk dks dksbZ vlE;d~ Qk;nk igq¡pkus ds fy, vius in ds nq:i;ksx dk iz;kl fd;k gksA ekeys dh bl n`f"V ls] ;g ugha dgk tk ldrk fd nqdku uhyke djus ds iz;kstukFkZ vkSj vkjksi Ø- 3 rFkk vkjksi Ø- 5 dsa laca/k esa] ;kph us dksbZ vfu;ferrk dh gksA
¿ iSjk 22 ,oa 23À
¼2½ uxjikfydk vf/kfu;e] 1961 ¼e-iz-½ && /kkjk 41&d && e-iz- uxjikfydk ¼ik"kZnksa dk ikfjJfed rFkk HkÙks½ fu;e] 1995 && fu- 4 && jkT; ls ckgj ;k=k ds fy, jkT; ljdkj dk iwfoZd vuqeksnu ugha fy;k x;k && ;k=k ifj"kn~ ds dk;Z ds fy, dh xbZ && ;k=k HkÙkk nSfud HkÙkk fcy ij] mls jkT; ljdkj dks fufnZ"V fd, tkus dk i`"Bkadu ekeyk /kkjk 41&d ls vkPNkfnr ughaA ¿ iSjk 17À
¼3½ uxjikfydk vf/kfu;e] 1961 ¼e-iz-½ && /kkjk 41&d && nks VsyhQksu j[ks tkuk vkSj vR;f/kd foy && nks VsyhQksu yxokus ds fy, v/;{k }kjk dqN ugha fd;k x;k && fy[kk tkuk fd eatwjh vkSj Hkqxrku fu;ekuqlkj fd, tk,¡ && vkjksi mls gVk, tkus ds fy, i;kZIr ughaA ¿ iSjk 18À
¼4½ uxjikfydk vf/kfu;e] 1961 ¼e-iz-½ && /kkjk 41&d && laifÙk ds ukekarj.k dk vkjksi && dsoy fofHké vf/kdkfj;ksa ds dk;Z dk vuqeksnu && ;kph nks"kh vfHkfu/kkZfjr ugha fd;k tk ldrk && ;kph }kjk dksbZ vfu;ferrk dkfjr ughaA ¿ iSjk 25À
¼5½ uxjikfydk vf/kfu;e] 1961 ¼e-iz-½ && /kkjk 41&d && fuokZfpr v/;{k dk gVk;k tkuk && yksdfgr oLrqfu"B :i ls ns[kk tkuk gksxk && ,sls O;fDr dk in ij cusa jguk vokaNuh; gksuk pkfg, & gVk, tkus dh ‘kfDr dk vkJ; fy;k tkuk && xaHkhj flfoy ifj.kke gksrs gS && dc vuqKs; gSA
izLrqr ekeys esa U;kf;d iqufoZyksdu bl rF; dks /;ku es j[k dj fd;k tkuk gksxk fd 1961 ds vf/kfu;e dh /kkjk 41&d ds v/khu ‘kfDr dk iz;ksx fuokZfpr in/kkjh dks mlds in ls gVkus ds fy, jkT; ljdkj dks djuk gksrk gSA bldk vFkZ gS fd jkT; ljdkj turk dh bPNkvksa vkSj vkKk ds izfrdwy dk;Z dj jgh gS ftUgksaus in/kkjh dks in ij fuokZfpr fd;k gSA rnuqlkj] ,sls O;fDr dks in ij cuk, j[kus dh O;ogk;Zrk laca/kh jk; vFkok mls yksd fgr esa in ls gVk, tkus dh okaNuh;rk oLrqijd <ax ls ns[kh tkuk gksxh rFkk vfHkdfFkr vfu;ferrk,¡ vFkok vfHkdFku ,sls xaHkhj izd`fr ds rFkk ,sls egRoiw.kZ gksuk pkfg, fd ,sls O;fDr dk inklhu jguk vokaNuh; gks tk,------A ‘kfDr dk iz;ksx djus ls] ftldk vkJ; jkT; ljdkj dks ysuk gksrk gS] lacaf/kr O;fDr dh izkfLFkfr ij gh ugah vfirq mlds Hkfo"; dh laHkkouk ij Hkh xaHkhj flfoy ifj.kke gksrk gS vkSj D;ksafd dksbZ i;kZIr fn‘kkfunsZ‘k fofgr ugha fd, x, gS] blfy, jkT; ljdkj }kjk dsoy izcy vkSj vdkV~; dkj.k miyC/k gksus ij gh ‘kfDr dk iz;ksx fd;k tkuk gksrk gSA ¼2001½ 6 ,l lh lh 260 vuqlfjrA 1999¼1½ ts ,y ts 277 rFkk fjV ;kfpdk Ø- 1976@2002 voyafcrA ¿ iSjk 5 ,oa 13À
¼6½ uxjikfydk vf/kfu;e] 1961 ¼e-iz-½ && /kkjk 41&d && v/;{k dk gVk, tkus dk vkns‘k && U;kf;d iqufoZyksdu && ‘kfDr;ksa dc iz;qDr dh tk ldrh gSA
yksdrkaf=d iz.kkyh ls fuokZfpr yksxksa dk gVkus ls lacaf/kr ekeyksa esa ;g U;k;ky; ij irk yxkus ds fy, ekeys dk Hkyh&Hkk¡fr ijh{k.k dj ldrk gS fd D;k mls in ls vdkV~; vkSj ck/;dj dkj.kksa ls gVk;k x;k gS] D;k tulk/kkj.k ds fgr] ifj"kn~ ds fgr ij mfpr :i ls fopkj fd;k x;k gS] D;k og lkexzh ftlds vk/kkj ij dkjZokbZ dh xbZ gS] ,slh gS fd mu O;fDr;ksa dks vius in ds brus vf/kd nq:i;ksx ds fy, mÙkjnk;h Bgjk;k tk ldrk gS fd mls in ij cuk, j[kus ds ifj"kn~ ds fgr ds vkSj varr% loZlk/kkj.k ds fgr esa xaHkhj vkSj nwjxkeh ifj.kke gksaxsA 1999¼1½ ts ,y ts 277 voyfcrA 1980 ts ,y ts 69 ¼iw.kZ U;k;ihB½ izHksfnrA ¿ iSjk 13À
¼7½ Hkkjr dk lafo/kku && vuq- 226 && mlh izkf/kdkjh us le{k vkuqdfYid iqufoZyksdu dk mipkj && izHkkoh vkuqdfYid mipkj ugha gSA ¿ iSjk 14À
1. Petitioner, a elected President of Municipal Council, Ambah District Morena, has called in question tenability of an order dated 12.12.2002, passed by the State Government vide Annexure P-4-A, removing him from the post of President, in exercise of the powers conferred under section 41-A of the Madhya Pradesh Municipalities Act, 1961. (hereinafter referred to as the Act of 1961).
2. According to the petitioner, he was elected to the Municipal Council (hereinafter referred to as the Council) in the election held on 26.12.1999, result thereof was declared on 28.12.1999, certificate, Annexure P-1 is the declaration under the relevant statutory rule declaring him to be elected as President of the Council.
3. It is the case of petitioner that even though he was discharging his duties effectively and in accordance with law, but certain persons were personally annoyed with him, therefore, complaints were made• to respondent No.1 who by letter dated 17.7.2001, Annexure P-2 raised certain quarries from respondent No.3 in connection with the alleged irregularities. It is averred by the petitioner that in response to the aforesaid quarries, the Deputy Director, Urban Administration and, Development, Gwalior, vide Annexure P-3 dated 10.8.2001, had clarified the position. Thereafter, a show cause notice dated 24.12.2001, Annexure P-4 was issued under the provisions of section 41-A of the Act of 1961, making various allegations against the petitioner. It is submitted that the petitioner submitted his explanation to the aforesaid supported by documents. Thereafter, the petitioner was called for personal hearing in the matter on 15.4.2002, however without considering his submissions and explanation, action has been taken for removing him from office. It is submitted by the petitioner that even though various allegations were levelled in the show cause notice, Annexure P-4, but in the final order passed vide Annexure P-4-A, he is found guilty of five charges mentioned therein.
4. It is the case of the petitioner that action has been taken against him without considering the reply submitted by him without appreciating the fact that he has not committed any irregularity nor has he misconduct. It is the case of the petitioner that in an illegal and arbitrary manner, power under section 41A of the Act of 1961 has been exercised for the purpose of removing him from office. It is argued by Shli Prashant Sharma learned counsel for the petitioner, taking me through various records that the order impugned has been passed ignoring the submissions made by petitioner. The petitioner. individually, as President of the Council has not misused him office or power and what has been done by him is on the basis of the resolution of the President-in-council and with the concurrence of the Chief Municipal Officer, who in his capacity has discharged his duties in accordance with the provisions of the statute. It is the case of the petitioner that there is no allegation against the petitioner that he is working against the public interest and he is incapable of performing his duties or that he is acting against the provisions of the statute.
5. Placing reliance on a decision of the Supreme Court in the case of Tarlochan Dev Sharma v. State of Punjab and others (2001) 6 SCC 260, and decisions of this Court in the case of Kaushalya Bai (Smt.) v. State of M.P. 1999(1) JLJ 277 and W.P. No. 1976 of 2002 (Daulat Ram Gupta v. The State of M.P. and another) decided on 20.1.2003. it is argued by Shri Sharma that in the present case action has been taken only to unseat the petitioner from the Office of the President and it is a misuse of the statutory power. It is the case of the petitioner that there is nothing on record on the basis of which action can be taken under the provisions of section 41-A of the Act of 1961.
6. Refuting the aforesaid, respondents have filed detailed reply separately and intervenors have also filed reply to indicate that in the discharge of his
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