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2000 DIGILAW 675 (MP)

Sitabai Kataria v. State of M. P.

2000-07-17

N.K.JAIN

body2000
ORDER N.K. Jain, J. 1. Petitioner-Sitabai by this petition has called in question the order dated 24-1-2000 passed by the State Government, Department of "Nagariya Prashasan & Vikas", Bhopal, removing the petitioner from the office of the President, Nagar Panchayat (Municipality), Badnawar. 2. The impugned order (Annexure P-17) is made by taking recourse to Section 41-A of the M.P. Municipalities Act, 1961 (for short, 'the Act'). The office of the President, Nagar Panchayat, Badnawar was reserved for a woman belonging to Scheduled Tribe. Admittedly, the petitioner is a Scheduled Tribe woman, resident of Ward No. 6 of Badnawar town. After the elections for the said office, petitioner-Sitabai was declared elected by the Returning Officer vide certificate dated 28-12-1999 (Annexure P-9). However, before she could assume charge of the office a complaint was made by Koksingh - the Intervener herein that election to the said office has been contested not by petitioner- Sitabai but one by Nirmalabai who filed, nomination for the election impersonating herself as Sitabai. On the said complaint which was addressed to the Collector, Dhar, an enquiry was ordered by the Collector. The S.D.M., Badnawar got the matter inquired by a three member team which on an enquiry found that the complaint was correct. The SDM forwarded the Enquiry Report (Annexure R-1) to the Collector, Dhar, who in turn submitted the same to the State Government. The State Government thereupon issued show-cause notice (Annexure P-12) in terms of the proviso to sub-section (2) of Section 41-A calling upon the petitioner to show-cause as to why she could not be removed from the office of the President. Petitioner filed replies (Annexures P-14 to P-16) to the said show-cause notice and it was, inter alia, contended that no action for her removal on the aforesaid ground could be taken by taking recourse to Section 41-A of the Act. It was pointed out that said Koksingh has already filed election petition challenging the election of the petitioner. However, the Government vide impugned order dated 24-1-2000 (Anncxure P-17) directed for removal of petitioner from the Office of the President, Nagar Panchayat, Badnawar. It was held that her continuance in the said office is not desirable in public interest or in the interest of the Council. 3. However, the Government vide impugned order dated 24-1-2000 (Anncxure P-17) directed for removal of petitioner from the Office of the President, Nagar Panchayat, Badnawar. It was held that her continuance in the said office is not desirable in public interest or in the interest of the Council. 3. I have heard Shri Anil Trivedi, learned counsel for the petitioner, Shri S. Mukati, learned G.A. for respondents and Shri S.N. Sharma, learned counsel for the Intervencr. 4. The petitioner has assailed the impugned order mainly on the ground that it is without jurisdiction. It was contended that petitioner's election to the said office of President could be called in question only by filing election petition as envisaged under Section 20 of the Act. Recourse to Section 41-A in the matter was wholly unwarranted rather barred in law. As against it, the learned Government Advocate and Shri Saxena, learned counsel appearing for the Intervener have supported the impugned order and contended that the Government was fully justified in removing the petitioner by taking recourse to Section 41 -A of the Act. 5. A new Chapter IX-A under the heading "The Municipalities" was inserted in the Indian Constitution by 74lh amendment providing for establishment of municipalities in the Urban areas. This part also provided for election to various offices of these Municipalities. Article 243ZG placed an express bar to interference by Courts in election matters and clause (b) of this Article provided that no election to any Municipality shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State. The State Legislature as amended the existing M.P. Municipalities Act, 1961 to bring it in tune with the provisions of Part-IX-A of the Constitution. Section 20 of the Act provides for election petitions for challenging the elections to various offices of a Municipality. Sub-section (1) again provided for the bar against interference in electoral matters that no election or nomination under this Act be called in question except by a petition presented in accordance with the provisions of this Section. Section 22 enumerates the ground on which an election or nomination to any office to the Municipality can be declared void by the Election Tribunal. One of such grounds is the improper acceptance of any nomination. Section 22 enumerates the ground on which an election or nomination to any office to the Municipality can be declared void by the Election Tribunal. One of such grounds is the improper acceptance of any nomination. So, the allegation that the nomination in the name of the petitioner was filed by somebody else and wrongly accepted by the concerning Authority, is squarely covered by the aforesaid ground contained in Section 22. 6. Section 41-A does vest the State Government with power to remove a President, Vice President or a Chairman of any Committee, if his continuance in office is not found desirable in public interest or in the interest of the Council. However, a bare reading in juxtaposition, the provisions of Sections 20, 22 and 41-B as also the Article 243ZG of the Constitution would make it amply clear that resort to Section 41-A can be had to remove a person from the office only after he is duly elected and his conduct in office is otherwise found prejudicial to public interest or in the interest of the Council. This provision cannot be pressed into service to call in question the election itself. Any such construction of Section 41-A will render the bar contained in Article 243ZG of the Constitution and Section 20 of the Act, meaningless or futile. 7. It is well settled rule of interpretation of the statute that a statute must be read as a whole in its context. It has to be construed to make it effective and workable. The Courts strongly lean against a construction which reduces a statute or any part of it, to a futility. One provision of the Act should be construed with reference to other provisions in the same Act so as to make a consistent enactment of the whole statute. Any inconsistent or repugnancy either within a section or between a section and other parts of the statutes, has to be avoided. This rule of harmonious construction is firmly established. As stated by the Supreme Court in Venkatramana ( AIR 1958 SC 255 ) "the rule of construction is well settled that where there are in an enactment two provisions which cannot be reconciled with each other, they should be so interpreted that, if possible, effect should be given to both. That is what is known as rule of harmonious construction". That is what is known as rule of harmonious construction". (Also see : Synopsis 3 & 4 of Chapter- I and Synopsis 4 of Chapter-II of the Principles of Statutory Interpretation, 16th Edition by Justice G.P. Singh). 8. In the instant case, there is in fact no inconsistency between Section 20 and Section 41-A of the Act and the legislative intent is very clear. While Section 20 is intended to eliminate corrupt practices by the candidates during elections. Section 41-A takes care of the conduct of the persons assuming office after election. Section 41-A cannot, be therefore, used to call in question any conduct of a candidate during election just as Section 20 cannot be pressed into service to remove an office bearer on account of his post election conduct while in office. Recourse to Section 41-A by the State Government to remove the petitioner from her office an account of her alleged misdemeanour during election, was wholly impermissible in law and contrary to the mandate of the Constitution and the Act. This Court in W.P. No. 571/2000 (Laxman Pimple Vs. Revenue Commissioner, Indore & another) decided on 10-3-2000, while interpreting a similar provision under Section 19 of the M.P. Municipal Corporation Act, 1956, held :-- "The M.P. Municipal Corporation Act, 1956 and the Rules framed thereunder provided for challenging the election to the office of Councillor by way of presenting election petition to the Election Tribunal. Recourse to Section 19 in such a manner, in my opinion, is not permissible. Under Section 19, the Divisional Commissioner has been authorised to remove an elected councillor if his continuance as a councillor is not found desirable in the interest of public or the Corporation. Obviously this provision relates to conduct of a councillor after he is elected. What is required to be done by way of election petition cannot he done by taking recourse to Section 19. There are no short cuts in law." 9. As already pointed out, the Intervener-Koksingh has already approached the Election Tribunal challenging the election of the petitioner. He may prosecute that petition and the Tribunal shall decide the same in accordance with law. 10. In the result, this petition succeeds and is allowed. The impugned order (Annexure P-17) is quashed. No order is, however, made as to the costs of this petition. 11. Writ Petition allowed.