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2006 DIGILAW 1339 (MP)

Sharda Devi v. Naar Jahan

2006-11-24

S.K.KULSHRESTHA, S.K.SETH

body2006
ORDER 1. By this writ appeal, the appellant assails the order dated 17.11.2006 of the learned Single Judge in WP No. 3991/06 by which the order dated 6.7.2006 passed by respondent 2, Secretary, Nagriya Prashasan Evam Vikas Vibhag, Govermment of M.P. Bhopal, respondent 1 Noorjahan w/o Mohd. Hussain had been removed from the post of President of Nagar Panchayat, Badaud. The power exercised by the respondent under S. 41 A of M.P. Municipalities Act, 1961 (for short the Act), can be exercised if her continuance as President, in the opinion of the State Government, was not desirable in public interest or in the interest of the Councilor if it is found that she is incapable of performing her duties or is working against the provisions of the Act or any rules made thereunder. The candidature of respondent 1 was challenged on the ground that by claiming that she belonged to OBC (other backward class) for which the seat of President was reserved, she had illegally been elected to the said post while she was, in fact, not a member of the OBC. On such ground the power could not have been exercised under S. 41A of the Act, which as stated above can only be exercised if the continuance of President is not in the public interest or in the interest of the Councilor if it is found that he is incapable of performing his duties or is working against the provisions of the Act. 2. In the impugned order Annexure P-11 to the WA, it is stated that the respondent 1 furnished wrong information with regard to her status as GBC, and such a ground does not fall within the domain of S. 41A and the only remedy in such case is under S. 20 of the Act of filing the election petition. 3. We are, therefore, satisfied that learned Judge in holding that S. 41 A of the Act was not attracted in the facts of the case, did not commit any error or illegality. Though learned counsel submits that in view of the decisions in K. Venkatachalam v. A Swamickan and another [ AIR 1999 SC 1723 ] and Ravindra Kumar Nayak v. Collector, Mayurbhanj Orissa and others [ AIR 1999 SC 1120 ] there is no bar to invoke the extra ordinary jurisdiction of this Court under Art. 226 of the Constitution of India. In the scheme of the Act when election petition is provided as the only remedy to challenge the election and provisions of S. 41A of the Act were not attracted as rightly held by the learned single Judge, we find that cases relied upon by the learned senior counsel do not apply to the facts and circumstances of the present case and the law involved. 4. In this view of the matter this writ appeal is summarily dismissed.