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Madhya Pradesh High Court · body

2006 DIGILAW 1414 (MP)

Satya Prakash Agarwal v. State of M. P.

2006-12-12

AJIT SINGH

body2006
ORDER :- By this petition, the petitioner has prayed for invoking the "quo-warranto writ jurisdiction" of this Court calling upon the respondent No. 3 to establish his legal entitlement for holding the office of Mayor, Municipal Corporation, Bhopal. Petitioner has also prayed for a declaration that respondent No. 3 has usurped that office by illegally occupying it despite his disqualification under Section 17(1)(b) of the Municipal Corporation Act (hereinafter referred to as "the Act"). 2. The petitioner is voter in Bhopal town. His case is that on 13-1-2000, respondent No. 3 was first elected as Councillor from Ward No. 5 Bhopal and then as Speaker, Municipal Corporation, Bhopal. On 20-2-2004, the State Government issued a show cause notice to respondent No. 3 as to why he should not be removed from the office of Speaker and ultimately removed him as Speaker by order dated 17-3-2004, Annexure P-3, in exercise of its powers under Section 19-B of the Act. The respondent No. 3 challenged the order of his removal before this Court by filing Writ Petition No. 1320/ 2004 on 22-3-2004 which is still pending and the order of removal has not been stayed. On 5-11-2004, respondent No. 3 filed his nomination form Annexure-P2, for contesting the election of the office of Mayor, Municipal Corporation, Bhopal. Election of the Mayor was held on 20-11-2004 and the respondent No. 3 was notified elected as Mayor on 7-12-2004. He assumed the charge of Mayor on 20-12-2004. According to the petitioner, respondent No. 3 made a wrong declaration in his nomination form, Annexure-P2, that he was not disqualified under any law for being elected to the office of Mayor as the order of his removal above mentioned was in operation on the date of his filing the nomination form. 3. The submission of the learned counsel for the petitioner is that respondent No. 3 on being removed as Speaker, Municipal Corporation, Bhopal, under Section 19-B of the Act becomes automatically disqualified under Section 17(b) to hold the office of Mayor, Municipal Corporation, Bhopal. 3. The submission of the learned counsel for the petitioner is that respondent No. 3 on being removed as Speaker, Municipal Corporation, Bhopal, under Section 19-B of the Act becomes automatically disqualified under Section 17(b) to hold the office of Mayor, Municipal Corporation, Bhopal. Placing reliance upon the decision of the Supreme Court in K. Venkatachala v. Swamickan, (1999) 4 SCC 526 : AIR 1999 SC 1723 and Division Bench decision dated 15-11-2006 of this Court in W.A. No. 87/2006 (Atar Lal Verma v. Suresh Choudhary), the learned counsel for the petitioner has argued that bar of Article 243ZG of the Constitution does not restrict the powers of this Court under Article 226 for issuing a writ in the nature of quo-warranto. He further submitted that in the admitted fact situation of this case, the respondent No. 3 must be declared disqualified to hold the office of Mayor. 4. In reply, the learned Senior Counsel for respondent No. 3 has submitted that merely because the State Government removed the respondent No. 3 as Speaker under Section 19-B of the Act, he does not automatically gets disqualified under Section 17(1)(b) of the Act from holding the office of Mayor. According to the learned Senior counsel, for disqualification within the meaning of Section 17(1)(b), a separate order for disqualification of the respondent No. 3 under Section 19-B(2) was necessary and that too after giving him a prior opportunity of hearing regarding the disqualification proposed. The learned Senior counsel has also argued that Article 243ZG of the Constitution categorically bars the writ jurisdiction of this Court challenging the election of respondent No. 3 as Mayor, Municipal Corporation, Bhopal. 5. The State Government in its return has supported the case of petitioner that respondent No. 3 is disqualified to held the office of Mayor, Municipal Corporation, Bhopal. 6. On the arguments advanced, the following two questions arise for consideration in this petition :- 1) was the respondent No. 3 disqualified on 5-11-2004 to contest the election of Mayor, Municipal Corporation, Bhopal; 2) is the writ jurisdiction of this Court challenging the election of respondent No. 3 barred by Article 243-ZG of the Constitution. 7. Sections 17(1)(b), 19, 19-B and 23 of the Act read as follows : "17. 7. Sections 17(1)(b), 19, 19-B and 23 of the Act read as follows : "17. General disqualification for becoming a Councillor :- (1) No person shall be a Councillor or Mayor, who - (b) has been removed from office under Sections 18, 19-B or sub-section (3) of Section 23 unless he has been relieved by Government from the disqualification arising on account of such removal from office." (The reference to Section 18 in Section 17(1)(b) appears to be a mistake for Section 19. Section 18 does not deal with removal. It is Section 19 which deals with removal of councillors.) 19. Removal of councillors - (1) The Divisional Commissioner may, at any time, remove any elected Councillor - (a) if his continuance as a Councillor is not, in the opinion of the Divisional Commissioner, desirable in the interests of the public or the Corporation; or (a-i) if it is found that he does not belong to the reserved category for which the seat was reserved; or (b) if the Corporation has, by a resolution supported by at least two-thirds of the total number of Councillors; recommend that a Councillor is not fit to continue as a Councillor on account of misconduct in the discharge of his duties or disgraceful conduct and should therefore be removed. (2) The Divisional Commissioner may, while ordering the removal under sub-section (3) of Section 23 or this section, also order that such councillor, shall not be eligible to become a Councillor of a Corporation for a period which shall be specified in the order and which shall not exceed five years : Provided that no resolution recommending the removal of any Councillor shall be passed by the Corporation nor any such order of removal shall be passed by the Divisional Commissioner unless such Councillor has been given a reasonable opportunity of showing cause why a recommendation should not be made for his removal or why he should not be removed from his office." "19-B. Removal of Mayor or Speaker or Chairman of a Committee. - (1) The State Government may, at any time, remove a Mayor or a Speaker or Chairman of any Committee, if his continuance as a Mayor or Speaker or Chairman of any Committee as the case may be, is not, in the opinion of the State Government, desirable in public opinion of the State Government, desirable in public interest or in the interest of the Corporation or it is found that he is incapable of performing his duties or is working against the provisions of this Act or the rules made thereunder. (2) The State Government may while ordering the removal under sub-section (1), also order that such Mayor or Speaker or Chairman of any Committee shall be disqualified to hold such office for the final term; Provided that no such order under this Section shall be passed unless a reasonable opportunity of being heard is given." Section 19-B(2) was amended by Madhya Pradesh Act 29 of 2003 and the following sub-section (2) was substituted : "(2) As a result of the order of removal of Speaker or Chairman of any Committee, as the case may be under sub-section (1), it shall be deemed that such Speaker or Chairman of any Committee, as the case may be, has been removed from the office of Councillor also. At the time of passing order under sub-section (1), the State Government may also pass such order that the Mayor or Speaker or Chairman of any Committee, as the case may be, shall be disqualified to hold the office of Mayor or Speaker or Council, as the case may be, for the next term;" Provided that no such order under this Section shall be passed unless a reasonable opportunity of being heard is given." 23. Resignation of Speaker or Councillors (1) and (2)............................................... (3) If it appears to the Divisional Commissioner that any Councillor having become liable for removal under Section 19 has tendered his resignation to escape such removal, then notwithstanding anything contained in this section the Divisional Commissioner may order his removal in accordance with the provisions of the said section and thereupon the Councillor shall be deemed to have been removed from the date he resigned his office. 8. 8. The respondent No. 3 was removed as Speaker by order dated 17-3-2004, Annexure-P3, of the State Government, but there was no order passed under Section 19-B(2) directing that he shall be disqualified to hold the office of Mayor or Speaker or Councillor for the next term. Reading of Section 17(1)(b) alone, prima facie, indicates that removal of a person under Section 19-B automatically disqualifies him from being a Councillor or Mayor for the next election unless he has been relieved from the disqualification by the Government. But Section 19-B(2) shows that removal by itself under sub-section (1) will not disqualify the person unless a separate order has been passed after giving him an opportunity of being heard regarding the disqualification for the next term. The literal construction of Section 17(1)(b) creates a conflict not only with Section 19-B(2) but also with Section 19(2). Taking first the case of Councillor a reading of Section 19(2) indicates that a mere order of removal does not disqualify the person for being eligible later to become a Councillor unless there is a separate order by the Divisional Commissioner that the person shall not be eligible to become a Councillor for a period to be specified in the order which shall not exceed five years. If Section 17(1)(b) is read alone a person who is removed as a Councillor gets automatically disqualified for all times to come wherein under Section 19(2) even an order specifically disqualifying such a person can only disqualify him for a maximum period of five years. Thus, literal reading of Section 17(1)(b) does not give any effect to Section 19(2). Taking now the case of a Mayor or Speaker or Chairman, reading of Section 19-B(2) clearly indicates that on passing of a separate order that the Mayor or Speaker or Chairman or Councillor, as the case may be, he shall be disqualified to hold office of Mayor or Speaker or Chairman, as the case may be, for the next term. Here again if Section 17(1)(b) is read alone the person removed as Mayor or Speaker or Chairman of the Committee will stand disqualified for ever without separate order to disqualify him although Section 19-B(2) requires not only a specific order for disqualification but also limits the disqualification for the next term. Here again if Section 17(1)(b) is read alone the person removed as Mayor or Speaker or Chairman of the Committee will stand disqualified for ever without separate order to disqualify him although Section 19-B(2) requires not only a specific order for disqualification but also limits the disqualification for the next term. The conflict between Section 17(1)(b) and other provisions such as Section 19(2) and 19-B(2) should be removed by harmonious construction and this can be done by holding that the disqualification resulting from removal means that disqualification which results under Section 19(2) and Section 19-B(2). If there be no disqualification coming into effect under Section 19(2) or Section 19-B(2) the removal will not attract any disqualification under Section 17(1)(b). The power of relieving the disqualification which is referred in Section 17(1)(b) will apply only when disqualification is effective under Section 19(2) and 19-B(2). 9. There is another point which arises from the language used in Section 19-B(2) which reads "that the Mayor or Speaker or Chairman of any Committee,as the case may be,shall be disqualified to hold the office of Mayor or Speaker or Councillor,as the case may be,for the next term". The expression "as the case may be" means that one out of the various alternatives would apply to one out of the various situations and not otherwise. 'One' will include more than one contingencies for one set of circumstances in a given case. (See Advanced Law Lexicon by P. Ramanatha Aiyer 3rd Edition Book 1 page 359). The use of expression "as the case may be" show that if a person is removed as a Mayor he would be disqualified to become a Mayor and if a Speaker is removed he would be disqualified to become a Speaker for the next term. The removal as Speaker can only disqualify the person to become Speaker for the next term if there be an order for disqualification but the removal as Speaker does not disqualify the person to become a Mayor. 10. For these reasons, I hold that respondent No. 3 was neither disqualified on 5-11-2004 to contest the election of Mayor, Municipal Corporation, Bhopal, nor he is presently disqualified to hold that office. 11. In view of my finding that respondent No. 3 is not disqualified to hold the office of Mayor, I do not think it necessary to decide the second question formulated above. 12. 11. In view of my finding that respondent No. 3 is not disqualified to hold the office of Mayor, I do not think it necessary to decide the second question formulated above. 12. The petition has no merit and is accordingly dismissed. Petition dismissed.