Satya Pal Mahajan vs The State

R.S. Narula, J.—Satya Pal Mahajan petitioner was elected as a member of the Municipal Committee of Dinanagar, district Gurdaspur, in 1964. In the election to the office of the President of the said municipality held in July 1964, the petitioner was elected as such. Notification u/s 24 of the Punjab Municipal Act, 1911 (Act 3 of 1911), hereinafter called the Act declaring the petitioner having been elected as President of the municipality was issued by the State Government on September 4, 1964. On September 30, 1964; one Sain Dass applied for a proposed construction plan being sanctioned by the municipality. The application was received in the municipal office on October 1, 1964, and was referred to the member of the ward for report. His report was received on November 14. 1964, to the effect that Sain Dass had already started the construction of the house in anticipation of the committee''s sanction. The ward member of the municipality, therefore, recommended the demolition of the building which had been constructed without sanction. The Secretary of the municipality accordingly served a notice on Sain Dass on November 16, 1964 Sain Dass did not heed to the notice and continued the construction. The matter was considered in the meeting of the Municipal committee held on November 25, 1964. By resolution No. 410 of that date, the committee directed the issue of a regular notice u/s 195 of the Act for demolition of the building to Sain Dass. Such a notice was issued in pursuance of the above-said municipal resolution on December 1, 1964. The notice was not complied with. The matter came up again before the municipality in its meeting held on December 30, 1964. By resolution No. 462 of that date, the municipality directed its President, the writ petitioner, to take action against Sain Dass in pursuance of powers which had been delegated to the petitioner u/s 195-A of the Act. Sain Dass then filed an application before the Sub-Divisional Officer (Civil), Gurdaspur, for annulling the municipal resolution No. 462, dated December 30, 1964. The application of Sain Dass was allowed by the order of the Sub Divisional Officer, dated April 9, 1965 (annexure ''E''). Shri V.V. Kohli, Sub-Divisional Officer (Civil), in exercise of his powers of the Deputy Commissioner, Gurdaspur, allowed the appeal of Sain Dass. He took notice of the plea of Sain Dass to the effect that he had constructed the wall on the assumption that the plans submitted by him had already been approved by the committee and that Sain Dass was prepared to compound the matter. He then observed that no clear reply having been given by the municipal committee to Sain Dass within six weeks'' from the date of the receipt of his application, it amounted to an automatic sanction of the proposed plans by the municipality. The learned Sub-Divisional Officer appears to have lost sight of the fact that the relevant period mentioned in section 193 (1-a) of the Act is sixty days and not six weeks, as was the case in section 92 of the Punjab Municipal Act (20 of 1891). The appellate authority seems to have fallen into this apparent error of law by referring to a decision under the 1891 Act without seeing the relevant provision of law contained in the 1911 Act. He then observed that his attention had been drawn to section 33 of the Act, according to which a municipal committee cannot delegate its powers u/s 195 to the President of the Committee. Even in this respect the Sub-Divisional Officer committed a glaring error. The penalty had been imposed by the petitioner u/s 195-A and not u/s 195. The power of a municipality u/s 195-A is in the list of the functions which can be delegated u/s 33(l) of the Act. In view of both the erroneous considerations, he held that ''the resolution passed by the committee is against law'' and proceeded to set aside the same. To the above said order, he added the following rider -

In view of the fact that the committee had not given any reply to the application put in by the appellant on 1st October, 1964, I feel it desirable that the committee as a whole should compound the matter with the appellant and decide the matter.

Thereafter, Sain Dass started making fresh constructions without approaching the municipal committee for composition. In pursuance of the municipal resolution, the petitioner imposed a fine of Rs. 1.000/- on Sain Dass after Sain Dass had refused to accept service of a fresh notice of April 18 1965, u/s 195-A. Sain Dass appears to have taken exception to the imposition of the said fine. He served upon the municipal committee a notice brought his advocate. Shri Baldev Singh Bhandari. The Deputy Commissioner forwarded a copy of the notice received by him from the counsel for Sain Dass to the Sub-Divisional Officer, Gurdaspur, with his letter dated May 15, 1965 (annexure ''B''), the relevant part of which was in the following terms:

"It is observed that the orders passed by you in the appeal were essentially to be complied with by the committee, without any departure. It is, further, observed that the action of the President in imposing a fine of Rs. 1,000/- in an arbitrary manner is illegal and against the provisions of section 228 of the Punjab Municipal Act 1911. You are requested to please ensure that the committee or the President is not allowed to do anything illegal in the case." The petitioner submitted a detailed reply, dated May 21, 1965 (copy annexure ''C'') to the above-said communication, of which a copy had been endorsed by the Deputy Commissioner to the petitioner "to abide by the rules strictly and abstain from assuming the role of a Court of law.

After giving a detailed resume of the relevant facts leading to the receipt of a copy of the Deputy Commissioner''s letter, the petitioner pointed out to the Sub-Divisional Officer that Sain Dass had not complied with the orders of the Sub-Divisional Officer to compound the proceedings and that the Sub-Divisional Officer had erroneously mentioned six weeks instead of sixty days as the period fixed by sub-section (4) of section 193 of the Act on the expiry of which a proposed construction plan is assumed to have been sanctioned. The petitioner further complained that Sain Dass was still continuing construction instead of sending any reply to the notices served on him. The petitioner claimed that in those circumstances he was left with no choice but to impose a penalty for disobedience of the orders of the municipal committee as provided under sub-section (2) of section 195-A. He then stated that Sain Dass had not paid the fine imposed upon him and in view of the legal question raised in those proceedings, the petitioner had stayed recovery of the fine in question and the petitioner requested the Sub-Divisional Officer to have the matter examined by the Government Pleader as to whether a President of the municipality could impose a fine as provided in section 195-A (2) of the Act or not. The petitioner made it clear that he would be prepared to take action according to the legal advice obtained by the Government. It was then pointed out in the end that the action of Sain Dass had greatly damaged the authority (prestige) of the committee and it would, therefore be in the fitness of things that the attitude of Sain Dass towards the municipal laws and his non-compliance with the orders of the Sub-Divisional Officer (Civil), Gurdaspur, be kept in mind while advising the municipal committee for taking such further action in the matter, as the Sub-Divisional Officer may direct Instead of obtaining any legal advice on the pure question of law that had been raised in this controversy the Punjab Government served on the petitioner a show-cause notice, dated June 19, 1967 (annexure ''A''), wherein it was alleged that the petitioner had without having regard to the orders of the Sub Divisional Officer, instituted fresh proceedings u/s 195-A of the Act and had imposed a fine of Rs. 1,000/- upon Sain Dass. The other allegations mentioned in the letter as well as in the statement of allegations accompanying the same was that the petitioner had not discharged his responsibility under the Business Bye-laws of the committee to have the proceedings recorded correctly inasmuch as the dissent and walk out by some members in two committee meetings had not been incorporated in the proceedings. In the statement of allegations, the petitioner was alleged to have "flagrantly abused his position/powers as a President by assuming the powers vested in a Court of Law" by imposing the fine in an arbitrarily manner beyond the jurisdiction of the President. In connection with another allegation relating to the proceedings not having been recorded in full, all that was stated was that it was the responsibility of the petitioner under the Business Bye-laws to have the proceedings recorded correctly and it was not stated that anything done or omitted to be done by the petitioner in that behalf amounted to abuse of his powers as President of the committee. The petitioner submitted an interim reply (annexure ''F''), dated July 6, 1967. Since the term of his office as President of the Municipal Committee for the maximum period of three years had since come to an end, the petitioner had no excess to the municipal records and, therefore, requested in his interim reply to be allowed to peruse the relevant files. The petitioner was informed by the Deputy Commissioner''s memorandum, dated September 8, 1967 (Annexure ''G'') that the record was laying with the Government and the petitioner might, therefore, approach the authorities concerned at Chandigarh in that respect. A copy of the memorandum was endorsed by the petitioner to the Deputy Director, Local Government, Jullundur Division, with the request that the proceedings might be obtained and sent so that proper reply be sent.

In August 1967 fresh election of the President of the municipal committee in question was held. The petitioner was re-elected. Notification u/s 24 of the Act in respect of the fresh election of the petitioner as President of the Dinanagar Municipality was issued on November 10, 1957. Without going any further into the matter and without even noticing that the term of office of the petitioner daring which the allegad acts or defaults were said to have been Committed by the petitioner, had already expired, the State Government issued the impugned notification, dated April 24, 1969 (annexure ''H''), wherein it was stated that the Governor of Punjab was satisfied that the petitioner had abused his power as President of the Municipal Committee Dinanagar. In exercise of the powers vested in the Governor of Punjab u/s 22 of the Act he wis pleased to remove the petitioner from the office of the President of the said municipal committee from the date of the publication of the notification (annexure ''H'') in the official gazette. It is this order of the petitioner''s removal from the office of the President of the Municipal Committee that has been challenged in the present writ petition.

In the written statement, dated May 13, 1969, filed by Shri Asa Singh, Assistant Secretary to Government, Punjab, Local Government Department, it has been stated that the petitioner never approached the Punjab Government for any record except for the municipal file to enable him to reply to the show-cause notice and that the said record was made available to the petitioner as asked for by him.

To the main allegation contained in paragraph 11(vii) regarding the effect of the expiry of the term of the office, to which the allegation against the petitioner related, all that has been slated on behalf of the respondents is that the judgment of the Division Bench of this Court in State of Punjab v Bakhtawar Singh L.P.A. 23 of 1959 decided on August 29, 1960, has no application to the instant case, as the above cited case pertained to the removal of a men her of a municipal committee from his office u/s 16 of the Act, whereas the present case pertains to the removal of the President u/s 22 of the Act. It is then stated that the previous writ petition was allowed on the ground that the misconduct of the member, if any, had been condoned by the electorate.

The correctness of the first proposition of law enunciated by Mr. Harbans Lal Sarin, learned counsel for the petitioner, about this Court having jurisdiction to scrutinise in order passd by the State Government u/s 22 of the Act for satisfying itself as to the legality of the same hasd on the previous judgments of this Court in the following cases has not been disputed by the learned counsel appearing for the State�

(1) judgment of Mahajan, J. in Norata Rum v. State of Punjab2 wherein it was held that the decision of the State Government u/s 16(1) (e of the Act on the question whether a member had flagrantly abused his position or not is always open to the scrutiny by th� High Court.

(2) The flivision Bench judgment of Dutat and Harhans Singh, jj. in Stale of Pnijab v. Sugtn Ram3 upholding the judgment of Mahajan, J. in Civil Writ 712 of 1963, which was decided along with Norala Raw�s case2 on October 29. 1963. The learned Judges held that the order passd by the State Government u/s 16(1) of the Act is subject to the scrutiny by the High Court with a view to check two nntters; firstly whether the grounds of removal are not extraneous to the conduct of the member as such and, secondly, to see that thc act or acts done by the member in disregard to his duty are such as can shock a reasonable mind.

(3) The Division Bench judgment (Dua, J. and myself) in the iIanciz1 Co?nmittee Khayar v. The State of Punjab4. rn that case it was held that an order superseding a municipal committee u/s 238(1) of the Act is subject to the scrutiny by the High Court in the exercise of its writ jurisdiction and is amenable to a suitable writ, oider or direction in an appropriate case under article 226 of the Constitution.

Nor has it been disputed that the powers of the State Government to remove the President of a municipal committee are circumscribed by the limits of section 22 of the Act, the relevan4 part of which reads as follows�

any President or Vice President may be removed form office by the State Government on the ground of abuse of his powers or on habitual failure to perform his duties........

Provided that before the State Government notifies his removal, the reason for his proposed removal shalt be communicated to him by means of a registered letter in which he shall he invited to tender within twenty-one days an explanation in writing and if no such explanation is received in the office of the appropriate Secretar to Government withiu twenty-one days of the despatcli of the said registered lett�r the State Government may proceed to notify his removal.

A plain reading of the purview of section 22 of the, Act makes it char that there are only two possible grounds on which a President or a Vice President ma� he removed from his office by the State Government viz--�

(1) on the ground that he had abused his powers; or

(2) on the ground that he has been guilty of habitual failure to perform his duties.

No allegation of the petitioner having been found guilty of habitual failure to perform his duties was ever made against him. All that was stated in the statement of allegations attached to the show-cause notice in regard to the petitioner not having ensured the recording of the dissenting note etc. in the proceedings of the two meetings of the committee, was-

Since these meetings were held under the Chairmanship of Shri Satya Pal, President, it was his responsibility under the Business Bye-laws of the Committee to have the proceedings recorded correctly.

The allegation made in this connection in the show cause notice was also to the same effect Inasmuch as no notice was given to the petitioner of his having been guilty of habitual failure to perform any of his duties and no allegation of abuse of his powers in connection with the preparation of the record of proceedings of the two meetings in question has ever been made against the petitioner the allegations relating to the proceedings of the two meetings of the committee are wholly irrelevant for purposes of justifying the removal of the petitioner from the office of the President and need not be adverted to any further.

Only two questions remain to be decided. First is whether, on the facts alleged in this case, it can reasonably be said that the petitioner was guilty of abuse of his powers as President of the Municipal Committee in imposing the penalty of Rs 1000/- on Sain Dass. Mr. Sarin first took me through a large number of cases in which distinction has been drawn between mere abuse of powers and flagrant abuse of powers. It is unnecessary to refer to those cases, as the adjective ''flagrant'' has not been used in respect of the powers of the President or Vice President referred to in section 22 of the Act. Counsel then took me through the judgment of the Allahabad High Court in Purshotam Chandra v State of Uttar Pradesh 1957 A.L.J. 885 and State of U.P. through the Joint Secretary to Government, U.P. General Secretariat, Lucknow, and others v Mewa Lal Yadav 1961 A.L.J. 120, and also through the judgment of Tek Chand, J. in Panna Lal v. The Secretary to Government Haryana, Local Government Department (1968) 70 P.L.R. 244, in support of his argument that the allegations made against the petitioner could not possibly be held to constitute an abuse of powers as President. In the view I am taking of the main submission of Mr. Sarin it does not appear to be necessary to decide this controversy which borders on the merits of the case.

The main submission of Mr. Sarin, on which he must succeed, is that no action u/s 22 of the Act could be taken to remove the petitioner from the office of the President, to which he had been elected in August, 1967 on account of any alleged abuse of his powers during the period of his previous term of office as President which term had ended in July, 1967. The facts relevant for deciding this point are not in dispute. The relevant allegation against the petitioner relates to 1964-65. The term of his office as President during which the alleged action was taken by the petitioner ended in July, 1967. The petitioner had been returned by his electorate (the members of the Municipal Committee) as President again in August, 1967. The petitioner purports to have been removed from the office of the President by the impugned order of the State Government on allegations which have no relation to his present office. It was held in an unreported judgment of a Division Bench of this Court in Punjab State v Bakhtawar Singh, decided on August 29, 1960, that the various clauses of section 16 (1) of the Act give power to the Government to remove a sitting member for any misconduct committed by him during the term of that office and that provision has no reference to any misconduct previous to the term of that office, unless that misconduct is a statutory bar to his re-election to the municipal committee and that is a matter which would disqualify the member from contesting the election and would certainly not be a ground for his removal after he had been duly elected. The view of R.P. Khosla, J. to the above effect in the writ petition of Bakhtawar Singh was upheld by the Letters Patent Bench in the above-said case. It was further observed that-

There is another way of looking at the matter. The elections are a part of the democratic set up. The electors are given the option to return their nominee and it is open to them while returning a member to return him or not to return him, because if they are satisfied that the person is not a fit person to be returned, they will not cast their vote in his favour, but once they return a member, they have no power, according to law, to turn him out if during the term of his office he is guilty of misconduct. It is for that reason precisely that section 16 of the Municipal Act has been enacted and power has been conferred by the Legislature on the Government to disqualify a member who is guilty of misconduct or of breach of certain matters provided for in this section. It has no relevancy to his conduct before he was elected. That is a matter for which the electors are the sole judge unless that matter is a disqualification for his standing for the election. That would debar him from contesting the election.

The view expressed by the Division Bench in Bakhtawar Singh''s case was subsequently approved and followed by another Division Bench of this Court (Mehar Singh, C.J. and Mahajan. J.) in Din Dayal v. The State of Punjab (1966) 68 P.L.R. 938, while considering the scope of section 102 of the Punjab Gram Panchayat Act (4 of 1953). After quoting in extenso from the judgment of the Division Bench in Bakhtawar Singh''s case, the learned Judges held -

These observations apply to the facts of the present case with equal force. Therefore, there is no escape from the conclusion that the appellant could not be removed for his acts and omissions during the course of his second term of office after he had been elected for the third term.

I think that in the light of the Division Bench judgments in Bakhtawar Singh''s case and Din Dayal''s case, there is no escape from the conclusion that the impugned order of the State Government removing the petitioner from the office of the President of Dinanagar Municipal Committee, which office he was holding since August 1987, on allegations relating to his previous term of office in 1964-65, was wholly without jurisdiction. There is no material difference in this behalf bet�ween section 16 and section 22.

I accordingly allow this writ petition with costs and set aside the impugned order. Counsel''s fee Rs. 200/-.