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2005 DIGILAW 254 (PNJ)

Dinesh Kumar Dhir v. State Of Punjab

2005-02-11

MEHTAB S.GILL, S.S.NIJJAR

body2005
Judgment S.S.NIJJAR, J. 1. We have heard the learned Sr. Counsel for the petitioner at length and perused the paper book. 2. Mr. Patwalia, vehemently argues that the petitioner has been illegally removed from the Office of Councillor, Municipal Council, Sultanpur Lodhi, District Kapurthala and from the membership of the Council by order dated 24-1-2005 (Annexure P-8) passed by the Principal Secretary to Government Punjab, Department of Local Government, Chandigarh. Learned Sr. Counse has made two-fold submissions. He submits that the allegation of "flagrant abuse of position" relates to the previous term. The petitioner had been elected as Municipal Councillor for a term of five years on 12-1-1998. This term came to an end in February, 2003. He contested the election for the 2nd time and was elected as Municipal Councillor on 9-3-2003. There is no allegation of abuse of position during the present term. Therefore, the impugned order is wholly without jurisdiction. In support of the submission, the learned Sr. Counsel relies on a Division Bench judgment of this Court in the case of State of Punjab V/s. Sugna Ram, (1964) 66 Pun LR 828 and a judgment of the single Bench of this Court in the case of Satya Pal Mahajan V/s. The State, (1969) 71 Pun LR 989. In the case of Sugna Ram (supra), it has been held that this Court has jurisdiction under Article 226 of the Constitution of India to scrutinise the orders passed by the State Government under Section 16 (1) (e) of the Punjab Municipal Act (3 of 1911) with a view to check whether the grounds of removal are not extraneous to the conduct of the member. As such the Court can scrutinise the orders to see as to whether the act or acts done by the Member in disregard to the duty are such as can shock a reasonable mind. Keeping in view the aforesaid, we have examined the order passed by the State Government. 3. In the case of Satya Pal Mahajan (supra), R. S. Narula, J. observed as follows :- "7. ............... 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. 3. In the case of Satya Pal Mahajan (supra), R. S. Narula, J. observed as follows :- "7. ............... 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/s. 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. 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/s. The State of Punjab, 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." 4. On the basis of the aforesaid observations, the petitioner would be entitled to succeed if the Court comes to the conclusion that the abuse committed by the petitioner related to the previous term. However, in the present case, the Principal Secretary has examined the record and concluded that a building application was submitted on 13-12-1993 by Ashok Kumar on behalf of the owners of the property, including the petitioner. The application had been made on behalf of the sons of Shri Ram Nath. Approval was accorded by the Municipal Council on 27-7-1994 to construct 15 shops. Along with the application, an affidavit of the five brothers (including the petitioner) had been attached stating that the facts stated in the application are correct. The application was sanctioned. The petitioner and his brothers were required to start construction within a period of one year. The applicants failed to start construction within the stipulated period, and therefore, sanction dated 27-7-1997 lapsed by operation of law. Thereafter, without taking prior approval, the applicants commenced construction of the shops in August, 1999. A show-cause notice was issued under Section 195 of the Punjab Municipal Act, 1911 to the petitioner and his brothers for indulging in unautho-rised construction of the shops. The show-cause notice was acknowledged and replied by Rakesh Kumar, one of the brothers of the petitioner. Thereafter, without taking prior approval, the applicants commenced construction of the shops in August, 1999. A show-cause notice was issued under Section 195 of the Punjab Municipal Act, 1911 to the petitioner and his brothers for indulging in unautho-rised construction of the shops. The show-cause notice was acknowledged and replied by Rakesh Kumar, one of the brothers of the petitioner. By order dated 23-6-2000, the brothers were directed to stop the unauthorised construction forthwith. They were directed to pay the composition fee, and thereafter, to commence construction after taking approval of the Municipal Council. It has also been pointed out in the impugned order that the record of the Municipal Council shows that the District Town Planner, Kapurthala by letter dated 12-9-2000 informed the President of the Municipal Council, Sultanpur Lodhi that the construction of the shops is in violation of the scheme in the area. Again the brother of the petitioner submitted a building application for permission to raise construction of four shops. In this application also, the ownership documents proved that the petitioner was a co-owner of the land. The application was not accepted as notice for raising unauthorised construction had already been served and was pending final action/compounding. The record also show, according to the impugned order, that it was on the request of one of the brothers of the petitioner, Rakesh Kumar Dhir that the Municipal Council passed Resolution No. 13 dated 15-1-2002. In this resolution, it was stated that the applicant had raised unauthorised construction of shops and the Municipal Council had already issued show-cause notice fixing a composition fee to Rs.36,675/-. Even this composition fee was reduced to Rs.2000.00 only. It was further observed that after realising the amount of Rs.2000.00 the building plan may be released. It was in the knowledge of the petitioner at the time when the resolution was passed on 15-1-2002 that he had a direct interest in the agenda. The petitioner, in violation of the Punjab Municipal General Rules, 1979 not only attended the meeting, but also voted in favour of the item. The resolution dated 15-1-2002 was annulled by the Government as the decision was contrary to the law and the rules. On 16-12-2002, Municipal Council again called upon the unauthorised constructors i.e. the petitioner and his five brothers to deposit the composition fee. The resolution dated 15-1-2002 was annulled by the Government as the decision was contrary to the law and the rules. On 16-12-2002, Municipal Council again called upon the unauthorised constructors i.e. the petitioner and his five brothers to deposit the composition fee. From the aforesaid facts, the State Government has come to the conclusion that on 21-2-2003, when the petitioner submitted an application supported by a duly sworn affidavit for the release of "Nothing Due Certificate" to the President, it was in his knowledge that composition fee of unauthorised construction of the shops was payable to the Municipal Council. Hence the conclusion that the petitioner and his brothers mala fide and knowingly concealed the true information while affirming the contents of the affidavit dated 21-2-2003. The fact that the composition fee has not been paid till date, clearly shows that the misconduct of the petitioner continued even in the subsequent term. Therefore, the ratio of law in Satya Pal Mahajan (1969 (71) Pun LR 989) (supra) would not be applicable to the facts and circumstances of the present case. Even in the impugned order, the Principal Secretary has considered the submissions of the petitioner that the charges levelled related to his previous term as Councillor, and therefore, no action can be taken against him. It has been held by the State Government that the petitioner has, therefore, impliedly admitted the charges levelled against him. The submission on behalf of the petitioner has been rejected with the following observations :- "..... that the wicked, glaring, mala fide and unauthorised act of raising unautho-rised construction against the planning of the area is still continuing as the charged Councillor has not complied with the law, rules, bye-laws applicable in this regard. Therefore, the rulings cited by the charged Councillor are not attracted to this case and are clearly distinguishable. It is honest duty of Govt. to ensure that Municipal Council i.e. its members and officials work within the parameters laid down in the Punjab Municipal Act, 1911 (as amended in 1994) and the rules, bye-laws and instructions in this regard. An elected representative is bestowed with no right to throw the norms to wind under the garb of his position. to ensure that Municipal Council i.e. its members and officials work within the parameters laid down in the Punjab Municipal Act, 1911 (as amended in 1994) and the rules, bye-laws and instructions in this regard. An elected representative is bestowed with no right to throw the norms to wind under the garb of his position. The letter of District Town Planner referred earlier shows that charged Councillor is also responsible for damaging the planning of the area which can bring public sufferings in the shape of traffic chaos in the area. Accordingly, the wicked, glaring and mala fide act of charged Councillor are required to be suitably checked otherwise the credibility of very important institution of Local Self Government will definitely suffer deep erosion. It is duty of every citizen to obey the law of the land and such responsibility is admittedly more on the framers of the law i.e. elected representatives. It is onerous duty of Govt. to ensure the compliance of law, rules and bye-laws and Govt. cannot turn a blind eye in this regard. As such, when it has been concluded on the basis of record that the charged Councillor has flagrantly abused his position as member, therefore, I. B. R. Bajaj, I. A. S. Principal Secretary, Local Government department, Punjab u/S. 16(1)(e) of Punjab Municipal Act, 1911 , remove Sh. Dinesh Dhir, Councillor, Municipal Council, Sultanpur Lodhi, from membership of Municipal Council, Sultanpur Lodhi." 5. These observations tend to show that the State Government was fully aware of the extent to which the petitioner has abused the position. 6. Mr. Patwalia has then submitted that the petitioner is a joint-owner of the shops along with his brothers. He has only 1/6th share in the shops. He, therefore, cannot be made liable for the failure of his brothers in not paying the composition fee. In support of the submission, learned Sr. Counsel has relied on a Division Bench judgment of this Court in the case of Dalip Singh V/s. Faquir Singh, 1996 Pun LJ 438 : (AIR 1997 Puj and Har 19). In that case, respondent No.1 Faquir Singh had challenged the election of the petitioner as Sarpanch. One of the grounds taken was that the father of the petitioner had taken Shamlat land on "Chakota" and did not pay the amount. In that case, respondent No.1 Faquir Singh had challenged the election of the petitioner as Sarpanch. One of the grounds taken was that the father of the petitioner had taken Shamlat land on "Chakota" and did not pay the amount. The Division Bench, therefore, considered the question as to whether the petitioner could be held to be a defaulter as the father of the petitioner had failed to pay the amount due to the Gram Panchayat. The father of the Sarpanch had died. In these circumstances, it was held by the Division Bench that due to inheritance of property of his father along with his brother, the petitioner may be under a moral obligation to deposit the amount, but, when the law only contemplates a personal default on the part of a candidate to deposit arrears of rent, any liability of his predecessor-in-interest or parents cannot make such candidate liable to suffer a disability to contest the election. It has further been held that the language of Section 6(5)(1) of the Gram Panchayat Act did not intend to disqualify a person from contesting the election to the Office of Sarpanch merely because his father or mother or any other predecessor-in-interest was/is in arrears of rent. These observations, in our opinion, would not be applicable in the facts and circumstances of the present case. The petitioner has been held liable for non-payment of composition fee for unauthorised construction of shops which are in the common ownership of the petitioner and his brothers. Therefore, it cannot be accepted that the petitioner is being made liable to pay for the liability of any predecessor-in-interest. 7. Mr. Patwalia, has then submitted that the petitioner is ready and willing to deposit his share of the composition fee. In fact he has always been ready and willing to deposit his share of the composition fee. The petitioner is at liberty to make an application for reconsideration of the matter before the concerned authorities. In case the requisite amount is deposited by the petitioner and an application is made for re-consideration, the respondents shall consider the same in accordance with law, as expeditiously as possible, preferably within a period of three months from the date the application is made. 8. With the aforesaid observations, the writ petition is dismissed.