Akbar Ali and others vs State of M.P. and others

Arun Mishra, J.

Petitioners in this writ petition are aggrieved by the orders of their removal from the post of Councillors of Nagar Panchayat, Bijuri, District-Shahdol.

Removal of the petitioners was ordered on 6th June, 2002 as per Orders P-1, P-2 and P-3 on the similar charge that charge u/s 418, 420/34, Indian Penal Code has been framed by Judicial Magistrate 1st Class, Kotma, hence due to framing of charge it has not been considered desirable in the interest of public that petitioners should continue as Councillors, hence their removal has been ordered and they have been declared disqualified from contesting the next election.

Petitioners were duly elected as Councillors. It is alleged that against the Vice-President Shri B.K. Bansal a no-confidence motion was moved on 15-1-2002, meeting was convened on 5-2-2002 for consideration of said no-confidence motion and Shri B.K. Bansal has been removed from the post of Vice-President, Nagar Panchayat-Bijuri, said Shri B.K. Bansal has filed a false case against petitioners before the Judicial Magistrate 1st Class, Kotma, complaint P-6 was filed. Petitioners applied for grant of anticipatory bail and the same was granted as per Order P-8 passed on 12-2-2002. Against the Order dated 5-2-2002, petitioners have preferred a revision before the Sessions Court, revision was pending at the relevant time, which has been subsequently allowed. Order P/18 has been passed on 20-6-2002. Matter has been remitted back to the trial Court with a direction that Court should make an enquiry into the position prior to 5-2-2002 the date of taking cognizance in the matter and pass fresh order, meaning thereby the order dated 5-2-2002 is no more operative.

3A. Collector, Shahdol issued show cause notices P-11 to the petitioners. Petitioners were required to file their reply by 13-5-2002. Reply P-13(a) and P-13(b) were submitted. Collector, Shahdol passed the orders P-1, P-2 and P-3 on 6-6-2002 removing the petitioners. Petitioners submit that the order is arbitrary, mala fide and against the provisions of the M.P. Municipalities Act. Letter written to the Collector, Shahdol by CMO on 22-3-2002 has not been considered. Order of taking cognizance did not attain finality has been ignored by the Collector, hence the orders are illegal and bad in law and deserve to be set aside.

A return has been filed by respondents No. 1 and 2. It is contended that removal of the petitioners from the post of Councillor is proper. Petitioners had claimed a sum of Rs. 2063/- from the Nagar Penchayat, Bijuri on the ground that they had travelled by a hired vehicle from Bijuri to Bhopal and Bhopal to Bijuri on 9-3-2002 to attend the meeting of Incharge Minister, for the same journey 1st class fare of railway journey was also claimed. Complaint was filed before the JMFC, arrest warrant was issued, however, anticipatory bail was granted, show cause notice was issued to the petitioners why they should not be removed from the post of Councillors, reply was submitted, thereafter decision was taken fully complying with the principles of natural justice. Thus, no interference is called for in the orders P-1, P-2 and P-3.

A return has also been filed by respondent No. 3 Municipal Council, similar stand to that of respondents 1 and 2 has been taken.

Intervenor has also supported the stand taken by respondents 1, 2 and 3.

Shri U.K. Sharma, learned counsel appearing for petitioners has submitted that removal is bad in law and simply by taking cognizance of the case, it could not be inferred by the Collector that continuance of the Councillors is undesirable in the interest of public or of the Council. Simply by taking cognizance, it cannot be said that charges have been framed and it could not be inferred that petitioners are guilty until and unless they are convicted and conviction attains finality. His further submission is that even registration of such a case is not a bar under the law for contesting the election, thus, the orders passed by the Collector of removal simply by virtue of the fact that the Court had taken the cognizance on a private complaint filed by respondent No. 5, removal of the petitioners is clearly arbitrary and unconstitutional.

Shri. S. Shekhar, learned Government Advocate has submitted that as a matter of fact petitioners are guilty of withdrawing the fare twice which fact was mentioned in the show cause notice, thus, removal is proper. Even if this fact is not so mentioned in the order, show cause notice has to be read along with the order and thus, the removal is proper and calls for no interference.

Shri Manoj Rajak, learned counsel appearing for respondent No. 3 and Shri S. Nagu, learned counsel appearing for respondent No. 5 have joined the arguments raised by Mr. S. Shekhar, Government Advocate.

The main question for consideration is whether the removal of petitioners could be ordered simply by the fact that cognizance of the case under sections 418, 420/34, Indian Penal Code was taken by Judicial Magistrate 1st Class, Kotma on the basis of a private complaint filed by respondent No. 5.

In my opinion, simply by taking cognizance by the Court, it could not be said that continuance of the Councillor has become undesirable in the interest of public. Charge has yet not been framed. Petitioners have not been convicted and sentenced to any imprisonment. There is no bar for contesting the election even if such cognizance is taken against any person and to get elected as Councillor. Simply issue of process by the Court against the Councillor, in my opinion, could not be made a ground for the Collector to remove them from the office u/s 41(1)(a) of the M.P. Municipalities Act, 1961. Collector has not ordered the removal on the ground that petitioners are guilty of withdrawing the travelling allowance twice, the validity of the orders P-1, P-2 and P-3 has to be adjudged on the basis of reasons mentioned in the order.

It has been held by the Apex Court in Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, in para 8, thus,

The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Commissioner of Police, Bombay Vs. Gordhandas Bhanji, (at p. 18):

Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.

Orders are not like old wine becoming better as they grow older.

It is clear that removal of the petitioners has to be adjudged on the basis of the reasons mentioned by the Collector in the order of removal. It is clear from the order of removal P-1, P-2 and P-3 that the only reason ascribed by the Collector is that charge has been framed, as a matter of fact, only cognizance was taken by the Court, charge has not yet been framed and that order itself has been set aside and matter has been remitted back to JMFC, Kotma to make prior investigation into the complaint and thereafter to issue the process. For all aforesaid reasons, the impugned orders P-l, P-2 and P-3 are unsustainable and are liable to be quashed.

Resultantly, the writ petition is allowed. Orders P-1, P-2 and P-3 are quashed. No order as to costs.