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HIGH COURT OF MADHYA PRADESH
K.K. DUBE & S. J. SURANA, JJ
Ramjilal Gupta
Versus
State of M.P. & another
M.P. No.153 of 1977
Decided on: 16-12-1978
The quo warranto proceedings afford a juridical enquiry in which any person holding an independent substantive public office is called upon to show by what right he holds the said office. If the enquiry leads to the finding that the holder of the office has no valid title to it, the issue of quo warranto outs him from that office. The procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the manner of making appointments to public office against the relevant statutory provisions. AIR 1965 SC 491 referred to.
Though the existence of legal right of its infringement is the foundation of jurisdiction under Article 226, yet this rule is modified in case of a writ of quo warranto.
It is now well settled that any inhabitant of a Municipal Corporation would be entitled to question the election of the Corporation even though he is not qualified to vote because every inhabitant has interest in the administration of the Municipal Corporation.
(Para 9)
(2) Words and phrases – word 'may'-when means 'shall' or' must'.
(3) Municipalities Act, 1961 (M.P.) – S. 41 (2)-word 'may' - in the context means 'shall' and 'must'-if disqualification exist, State Government must declare so.
The word 'may' generally does not mean 'must' or' 'shall' but it is well settled that the word 'may' is capable of the meaning 'must' or 'shall' in the light of the context. When a discretion is conferred on a public authority coupled with an obligation the word-may' denotes that the discretion would be construed to mean a command. 1964 (J) SCR 399 referred to.
(Para 10)
It is the context which is decisive. The word 'may' in subsection (2) must be interpreted as casting a mandatory duty. It casts an obligation on the Government to declare a person disqualified if such person being a legal practitioner acts or appears on behalf of other person against the council in any legal proceeding or against the State Government in any such proceedings relating to any matter in which the council is or has been concerned, or acts or appears on behalf of any person in any criminal proceeding instituted by or on behalf of the Council against such person.
(Para 11)
(4) Municipalities Act, 1961 (M.P.) – S. 332-power of review-is not governed by limitations provided in Order 47, rule 1, CPC - section is self contained-limitations on the power.
The power to review is a special power bestowed by the statute and has to be construed only subject to such limitations as have been imposed by the statue giving the power. There is nothing in the Act to indicate that the power would be subject to a restriction as is contained in Order 47, rule 1 of the Code of Civil Procedure. In the nature of things, the power to review under the M.P. Municipalities Act had to be wide as the order passed by the State Government may be administrative, quasi-Judicial or of judicial nature
The jurisdiction however, has to be exercised bona fide for correction of the mistakes in the earlier decision and this power cannot be exercised mala fide merely to change its earlier decision.
(Para 14)
(5) Municipalities Act, 1961 (M.P.) – S. 332-High Court confirming the original order while dismissing a writ petition-the order of the High Court a speaking order-State Government precluded from reviewing the original order some order of High Court made on concession-cannot invest the State Government with power to review.
(6) Constitution of India – Art. 226-original order of State Government confirmed while dismissing a writ petition against such order - order of High Court a speaking order-State Government cannot review such original order.
Whenever the High Court decides a matter in a writ petition under Article 226 of the Constitution it conclusively determines the rights of the parties in respect of that matter and they become final subject to the finality being disturbed by the Supreme Court. The State Government was not left with any jurisdiction to review the matter under section 332 of the Madhya Pradesh Municipalities Act. The order made on concession by the High Court will not avail the State Government in giving them jurisdiction when there was none. AIR 1935 All. 435 & AIR 1920 Lah. 321 referred to.
(Para 16)
(7) Municipalities Act, 1961 (M.P.) – S. 332-review-limitation of 90 days-when applies-question of disqualification of a candidate-is a dispute affecting a private person only-limitation applies.
The limitation of 90 days is prescribed when an order affecting any question of rights between private persons is to be reviewed by the State Government. The present question as to disqualification of the petitioner is a dispute affecting a private person only. The review by the State Government was clearly barred after the period of 90 days.
(Para 17)
K. K. Dube. J
1. This petition is directed against the order of the State Government under section 332 of the Municipalities Act, reviewing its' earlier order in the matter of disqualification of the respondent No.2.
2. The facts giving rise to this petition are these: Elections of the Councilors of the Municipal Council Joura were held in the year 1974. The petitioner was declared duly elected Councilor from ward No.3 and the result duly notified and published. The respondent No.2 Shantilal Agarwal was a practising lawyer of Joura. He was also declared elected. The respondent No.2 was then elected as the President of the Council for a term of two years. It appears that the respondent No.2 had appeared in a series of cases defending accused persons who were prosecuted under the Prevention of Food Adulteration Act. 1954 and the rules made thereunder. The criminal cases were initiated at the instance of Food Inspectors for the offences committed within the limits of the Municipal Council Joura. A list of such cases is appended to the petition with the dates on which the respondent No.2 appeared in those cases.
3. Under section 41, sub-section (2) of the M.P. Municipalities Act, it is provided that the State Government may at any time remove a Councilor, if It finds that being a legal practitioner, such Councilor acts or appears on behalf of any other person against the Municipal Council in any legal proceeding or against the State Government in any proceeding relating to any matter in which the Council is or has been concerred or acts or appears on behalf of any person in any criminal proceeding institued by or on behalf of the Council against such person. The State Government followed the procedure prescribed and gave the respondent No.2 an opportunity of defending himself against the disqualification. The State Government finding that the respondent No.2 had incurred disqualification, by its order dated 2-11-1976 ordered removal of respondent No.2 from the councillorship of the Municipal Council, joura in public interest. The disqualification was to continue for a period of 4 years and the petitioner was precluded from contesting further elections, selection and appointment during the period. The respondent No.2 aggrieved by the order of the State Government came up before the High Court in a writ petition being M.P. No.288 of 1976 at Gwalior Bench. The High Court summarily dismissing the petition by its order dated 7-12-1976, observed as under 1977 (I) WN 92.
"The petitioner was a legal practitioner at Joura, District Morena. He was elected to the Joura Municipal Committee in the year 1974 and became a Municipal Councilor an April 1975. He was also elected president of the Municipality. After giving a show cause notice in August 1976 he had been removed from the office of the councilor and also disqualified for a further period of four years. The charge against him was that the petitioner appeared on behalf of the accused in cases under the Prevention of Food Adulteration Act, challenged by the Food Inspector as authorised by the Joura Municipal Committee and thus acted against the interests of the Municipal Committee, Joura.
Held: The contention is that proceedings in criminal cases are institutied under section 7 of the Prevention of Food Adulteration Act by the State Government and not by or on behalf of the Municipal Committee. It is further contended that no opportunity was given to the petitioners as required by sub-section (3) of section 41 of the M.P. Municipalities Act. The order is challenged as most illegal, malicious, arbitrary and bad in law. It is wide enough to include criminal cases in which Municipality is concerned, although challenged on behalf of the State Government. Since the petitioner admits that he appeared on behalf of the accused in cases under the Food Adulteration Act, he was liable to be removed from the office of a Councilor. Petition is dismissed.
A. B. Mishra for petitioner."
4. The respondent
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