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2005 DIGILAW 1000 (MP)

Pramod Soni v. State of Madhya Pradesh

2005-09-21

DIPAK MISRA

body2005
Judgment ( 1. ) INVOKING the extra-ordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India the petitioner, an elected Councillor of the Municipal Council, Hoshangabad, has called in question the defensibility of the order passed by the State of Madhya Pradesh contained in Annexure P-14, dated 8-8-2005 whereby the Competent Authority of the State Government has affirmed the order dated 31-1-2005 contained in Annexure P-ll passed by the Collector, Hoshangabad removing the petitioner from the office of the Councillor in exercise of power vested in him under Section 41 of the M. P. Municipalities Act, 1961 (for brevity the Act ). ( 2. ) THE facts which are necessitous to be narrated are that the petitioner was elected to the post of Municipal Councillor in the year 1999 for a period of five years. He was served with a notice to show cause by the Collector, Hoshangabad vide Annexure P-8 requiring him to proffer an explanation why he should not be removed inasmuch as he had granted a caste certificate in favour of one Ku. Romsa, daughter of Ramesh Kumar, describing her as a member of Scheduled Caste, though she was not so and such an act of the petitioner was against the public interest. The petitioner filed his show cause as per Annexure P-10 contending, inter alia, that he had not abused his office and had recommended the case of said Ku. Romsa on the documents produced before him. It is worth noting here that the petitioner vide Annexure P-9 prayed for supply of inquiry report of the SDO which formed the base for initiation of the proceeding. As pleaded, the Collector did not supply such documents and on the basis of the show cause filed by the petitioner passed the impugned order holding that the petitioner had given a certificate in favour of Ku. Romsa which was incorrect and such an act did tantamount to a detrimental to the public interest. On the basis of the aforesaid, the Collector came to hold that the petitioner, as a Councillor, was unwarranted and accordingly, passed the order of removal. ( 3. ) BEING dissatisfied with the aforesaid order the petitioner preferred an appeal before the State Government which, as has been indicated hereinbefore, affirmed the same. ( 4. ) MR. On the basis of the aforesaid, the Collector came to hold that the petitioner, as a Councillor, was unwarranted and accordingly, passed the order of removal. ( 3. ) BEING dissatisfied with the aforesaid order the petitioner preferred an appeal before the State Government which, as has been indicated hereinbefore, affirmed the same. ( 4. ) MR. Alok Aradhe, learned Counsel for the petitioner has submitted that the order passed by the Collector, the Competent Authority under the statute, is illegal and untenable inasmuch as the conclusion arrived at as regards the public interest is erroneous inasmuch as the act, which is recommendatory in nature, can not be assumed the character of public interest. It is his submission that the Competent Authority has not agreed with the said caste certificate, though number of documents had been relied upon and made available before him to certify that said Ku. Romsa belongs chhatri caste. It is also urged by him that the removal of Councillor is a matter of serious concern inasmuch it tinkers with the period for which he is electedand before such an action is taken there has to be full fledge enquiry to determine whether the act done by the Councillor is detrimental to the interest of public at large Submission of learned Counsel for the petitioner is that the documents/enquiry report of the SDO should have been supplied to him to meet the allegations made against him and that having not been done it would tantamount to the conclusion based on no enquiry and such an order has to pave the path of vitiation. In addition, it is argued by him that the order passed is vulnerable inasmuch as it is absolutely cryptic and is liable to be lanceted as no reasons have been ascribed. ( 5. ) MR. Kumaresh Pathak, learned Government Advocate, has supported the order passed by the Authority on the ground that the petitioner had abused his power by granting certificate though he was not sure of the caste. It is canvassed by him that the Returning Officer relied on the certificate granted by the officer and the importance of the same can not be marginalized inasmuch as the Councillor has a public duty to perform in this regard when a caste certificate is given to a person belonging to general category and, therefore, public interest is involved. It is canvassed by him that the Returning Officer relied on the certificate granted by the officer and the importance of the same can not be marginalized inasmuch as the Councillor has a public duty to perform in this regard when a caste certificate is given to a person belonging to general category and, therefore, public interest is involved. To meet with the contention with regard to affording of an opportunity of being heard and conducting of enquiry it is submitted that when the petitioner had filed his show cause and the documents are tale tell, it can not be said that the order has been passed without any inquiry and, therefore, there can not be inference by this Court. It is also submitted that the petitioner has the authority to issue certificate and when such an authority is abused the element of public interest gets invited. ( 6. ) TO appreciate the rivalised submission raised at the Bar it is appropriate to refer to Section 41-A of the Act: 41. Removal of Councillor.- (1) The Councillor may, at any time remove an elected Councillor (a) if his continuance as a Councillor, is not, in the opinion of the Collector, desirable in the interest of the Pubic or of the Council; or ( 7. ) ON a scrutiny of the aforesaid provision it is crystal clear that the Collector has to form an opinion that the continuance of the petitioner as Councillor is not desirable in the interest of public or the Council. The concept of public interest has to be read in proper spectrum and the interest of the Council has to be understood in appropriate prism. Learned Counsel has commended me to a three Judge Bench decision rendered in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. ,, AIR2001 SC 2524 , JT2001 (5 )SC 645 , 2001 (4 )SCALE472 , (2001 )6 SCC260 , [2001 ]3 SCR1146 , wherein the Apex Court while dealing with the concept of removal of an elected person has expressed the view as under :7. In a democracy governed by rule of law, once elected to an office in a democratic institution, the incumbent is entitled to hold the office of the term for which he has been elected unless his election is set aside by a prescribed procedure known to law. In a democracy governed by rule of law, once elected to an office in a democratic institution, the incumbent is entitled to hold the office of the term for which he has been elected unless his election is set aside by a prescribed procedure known to law. That a returned candidate must hold and enjoy the office and discharge the duties related therewith during the term specified by the relevant enactment is a valuable statutory right not only of the returned candidate but also of the constituency or the electoral college which he represents. Removal from such an office is a serious matter. It curtails the statutory term of the holder of the office. A stigma is cast on the holder of the office in view of certain allegations having been held proved rendered him unworthy of holding the office which he held. Therefore, a case of availability of a ground squarely falling within Section 22 of the Act must be clearly made out. A President may be removed from office by the State Government, within the meaning of Section 22, on the ground of "abuse of his. powers" (of President), inter alia. This is the phrase with which we are concerned in the present case. ( 8. ) IN the aforesaid case Their Lordships have held that removal from such an office is a serious matter. It curtails the statutory term of the holder of the office and a stigma is cast in view of certain allegations. I may hasten to clarify that in the said case though Their Lordships were dealing with different provision in Paragraph 13 have expressed the view that even accepting the allegations made against the appellant, as contained in the show-cause notice to be correct, his decision to withhold the payment may be said to be erroneous or unjust decision and for the said reason alone the appellant therein could not be said to be guilty to have abused his power which was detrimental to the public interest. The purpose of referring to the aforesaid facet is only to show that an act must such so that it would come within the realm of public interest or in the interest of the Council. It is incumbent on the part of the Collector to form an opinion that the Council is not desirable. The purpose of referring to the aforesaid facet is only to show that an act must such so that it would come within the realm of public interest or in the interest of the Council. It is incumbent on the part of the Collector to form an opinion that the Council is not desirable. In this context it is profitable to refer to the decision rendered in the case of Muzaffar Ali v. State of M. R 1999 (I) MPWN 172 . In the said case this Court expressed the view that removal of a Councilor can not be passed in a cryptic manner and it should be a reasoned order after conferral of benefit of hearing to the delinquent. It has also been held that he should be supplied all the documents relied upon by the Competent Authority. ( 9. ) ON a perusal of the impugned order which have been assailed in this writ petition it is clear as noon day that the Collector has expressed the view that the petitioner had usurped the power and such an act did tantamount to one against the public interest. Mr. Aradhe, learned Counsel for the petitioner proponed that if the documents contained in Annexures P-2, P-3 and P-4 are scrutinized it would be quite vivid that the petitioner had genuinely harboured an idea that said Romsa did belong to Scheduled Caste inasmuch as her name has been mentioned in the mark-sheet as "ramsha Chhatri". It is canvassed that the Revenue Officer is the Competent Authority to give caste certificate and it is obligatory on his part to cause an inquiry. The recommendation made by the Councillor for grant of certificate is not binding on the Tehsildar and nothing has been brought on record to indicate that he is in habit of granting such certificates. A singular act of this nature, in my considered opinion, would not come within the ambit and sweep of public interest and it can not be regarded that the recommendation has the binding force on the Tehsildar. If such a power would have been conferred, possibly that would have influenced the Tehsildar to act on the recommendation. The Tehsildar is the Competent Authority to grant the caste certificate on due enquiry. He is not bound by the recommendations. If such a power would have been conferred, possibly that would have influenced the Tehsildar to act on the recommendation. The Tehsildar is the Competent Authority to grant the caste certificate on due enquiry. He is not bound by the recommendations. An act of recommendation of this nature which has no binding effect and that too a singular one, if I may allow to say so, would not entail in removal of Councillor, as that would, in a way, destroy the basic concept of democracy since the elected person is not to be thrown overboard on the ground of this nature. Quite apart from the above, documents have been brought on record to show that he had genuinely believed that the person concerned belonged to kshatriya caste because she was a Chhatri. It is because of the spelling that might have persuaded him to grant such certificate. In the absence of any kind of motive or malice the action taken by the Collector, and the ultimate order passed by him is unsustainable. As the original order does not withstand scrutiny, the appellate order is also to be axed. ( 10. ) CONSEQUENTLY, the writ petition is allowed and the orders contained in Annexures P-l 1 and P-14 are quashed. There shall be no order as to costs.