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MADHYA PRADESH HIGH COURT AT JABALBUR BENCH
S.Shrivastava, Arun Mishra, JJ.
Johra Bi & Ors. - Appellant
Versus
Jageshwar & Ors. - Respondent
W.P. No. 8714-07
Decided On : 08-09-2009
MUNICIPALITIES ACT - SECTION 41-A - REMOVAL OF PRESIDENT - SCOPE OF POWER - POWER TO BE EXERCISED ONLY IN GRAVE AND EXCEPTIONAL CIRCUMSTANCES - ACTION OF REMOVAL CASTS A SERIOUS STIGMA ON THE PERSONAL AND PUBLIC LIFE OF THE CONCERNED OFFICE BEARER AND MAY RESULT IN HIS/HER DISQUALIFICATION TO HOLD SUCH OFFICE FOR THE NEXT TERM - EXERCISE OF POWER, THEREFORE, HAS SERIOUS CIVIL CONSEQUENCES ON THE STATUS OF AN OFFICE BEARER - THERE ARE NO SUFFICIENT GUIDELINES IN THE PROVISIONS OF SECTION 41-A AS TO THE MANNER IN WHICH THE POWER HAS TO BE EXERCISED, EXCEPT THAT IT REQUIRES THAT REASONABLE OPPORTUNITY OF HEARING HAS TO BE AFFORDED TO THE OFFICE BEARER PROCEEDED AGAINST - KEEPING IN VIEW THE NATURE OF THE POWER AND THE CONSEQUENCES THAT FLOWS ON ITS EXERCISE IT HAS TO BE HELD THAT SUCH POWER CAN BE INVOKED BY THE STATE GOVERNMENT ONLY FOR VERY STRONG AND WEIGHTY REASON - SUCH A POWER IS NOT TO BE EXERCISED FOR MINOR IRREGULARITIES IN DISCHARGE OF DUTIES BY THE HOLDER OF THE ELECTED POST - THE PROVISION HAS TO BE CONSTRUED IN STRICT MANNER BECAUSE THE HOLDER OF OFFICE OCCUPIES IT BY ELECTION AND HE/SHE IS DEPRIVED OF THE OFFICE BY AN EXECUTIVE ORDER IN WHICH THE ELECTORATE HAS NO CHANCE OF PARTICIPATION.
Fact of the Case:
Appellant, the President of Nagar Palika, Zora, District Muraina, was removed from office by the State Government under Section 41-A of the Madhya Pradesh Municipalities Act, 1961. The appellant challenged the removal order before the High Court, which upheld the State Government's decision. The appellant then filed an appeal before the Supreme Court.
Finding of the Court:
The Supreme Court held that the State Government's decision to remove the appellant from office was not justified. The Court found that the appellant's actions, even if proved, only amounted to irregularities, and not grave forms of illegalities, which may allow the State Government to invoke its extreme power under Section 41-A. The Court also found that the State Government failed to appreciate that the decisions for publication of advertisements, calling for tenders and payment of salaries were made by the entire council and the President-appellant could not be singled out for those decisions taken by the Council.
Issues: Whether the State Government's decision to remove the appellant from office was justified.
Ratio Decidendi: The power to remove the President, Vice-President or Chairman of a Committee under Section 41-A of the Madhya Pradesh Municipalities Act, 1961 can be invoked by the State Government only for very strong and weighty reasons. Such a power is not to be exercised for minor irregularities in discharge of duties by the holder of the elected post. The provision has to be construed in strict manner because the holder of office occupies it by election and he/she is deprived of the office by an executive order in which the electorate has no chance of participation.
Final Decision: The Supreme Court allowed the appeal, set aside the order of the State Government removing the appellant from office, and consequential orders passed by the High Court. The Court also made it clear that the disqualification of the appellant was expunged and she would be free to contest the elections in future.
JUDGMENT :
Arun Mishra, J.The question has been raised with respect to maintainability of writ petitions as against the orders which have been impugned in the instant cases in view of proviso to sub-section (1) of Section 115 CPC; whether writ would be maintainable or revision.
2. In WP No. 8714/2007 (Johra Bi and others vs. Jageshwar and others) impugned order (P/7) passed on 15th February, 2007 by the Addl. District Judge, Mandla has been assailed. Plaintiff had filed civil suit no. 41 -A/03 which was dismissed for want of prosecution, restoration of the suit was applied, the trial Court had dismissed the application filed under Order 9 Rule 9 CPC for restoration of the suit, aggrieved thereby said misc. appeal was preferred before the Addl. District Judge which appeal has been dismissed. Aggrieved thereby, the writ petition has been preferred.
3. In WP No. 8447/09 (Amir Islam vs. Paris Grin Nirman Sahkari Sanstha Maryadit and others) matter relates to rejection of an application filed under Order 7 Rule 11 read with Section 151 CPC to reject the plaint on the ground that valuation was not appropriate, adequate court fees has not been paid and necessary party has not been impleaded.
4. In WP No. 13378/07 (Arjundas Priyani vs. Arjundas Lalwani and another) there is rejection of an application filed on behalf of defendant under Order 7 Rule 11CPC. Question posed for consideration is whether in case application would have been allowed, the proceeding would have been finally disposed of ? Said order passed by the trial Court rejecting the application vide Order (P.5) dated 6.8.07 has been assailed in the writ petition.
5. In WP Nos. 7664/07 (Shri Jagat Guru Shankrachariya Swami Swaroopanand Saraswati Badrika Dwarika Peethhadhishwar Ashram vs. Kalam Scooter Service and others), 4993/08 (Shri Jagat Guru Shankrachariya Swami Swaroopnand Saraswati Badrika-Dwarika Peethhadhishwar Ashram vs. Kallu Scooter Service), 4994/08 (Shri Jagat Guru Shankrachariya Swami Swaroopanand Saraswati Badrika-Dwarika Peethhadhishwar Ashram vs. Siddu Engineering Works) and in WP No. 4995/08 (Shri Jagat Guru Shankrachariya Swami Swaroopanand Saraswati Badrika-Dwarika Peethhadhishwar Ashram vs. Bhatia Tyres) the facts are that plaintiff had filed a suit for eviction of tenant on the ground of arrears of rent as also on the ground of bona fide need for carrying out the construction. Ex parte decrees were passed. Applications under Order 9 Rule 13 CPC were filed in aforesaid cases. The trial Court vide order dated 23.4.07 dismissed the applications, aggrieved thereby misc. appeals were preferred before the Court of District Judge, Jabalpur. The matter was remanded to the trial Court. Aggrieved thereby aforesaid writ petitions have been preferred on behalf of the petitioner before this Court. Initially the writ petitions were decided by common order dated 5.5.08 passed by esteemed brother Rajendra Menon, J., against which four Writ Appeals no. 704/08,705/08,706/08 and WA 707/08 were preferred. Division Bench vide order dated 28.8.2008 has observed that learned single Judge shall take up the issue relating to maintainability of the writ application under Article 227 of the Constitution of India or in case a revision is maintainable under Section 115 of CPC. If the learned single Bench is of the opinion that the judgment in the matter of Shakuntala Singh vs. Basant Kumar Thakur and others, 2003 (3) MPLJ 414 may be referred to a larger Bench in case of disagreement. It was made clear by the Division Bench that "we make it clear that we are deciding the writ appeals on the preliminary submissions and are not touching the merits of the matter which are still to be decided by the learned Single Judge while exercising his powers either under Article 227 of the Constitution of India or under Article 226 of the Constitution of India. It was also observed that Single Judge is requested to provide proper opportunity to the parties to raise their submissions not only on the
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