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Madhya Pradesh High Court · body

2009 DIGILAW 620 (MP)

Naveen Kumar Saad v. State af M. P.

2009-05-08

SANJAY YADAV

body2009
ORDER 1. Petitioner challenges the order dated 6.3.2007 passed by the State Government purportedly in exercise of powers under section 4l-A of the M.P. Municipalities Act, 1961 (hereinafter for short "Act of 1961") whereby the petitioner was removed from the post of President, Municipal Committee, Junnardeo. Section 4l-A of the Act of 1961 contemplates: "4l-A. Removal of President or Chairman of a Committee. -- (1) The State Government may, at any time, remove a President, Vice President or a Chairman of any Committee, if his continuance as such is not, in the opinion of the State Government desirable in public interest or in the interest of the Council or if it is· found that he is incapable of performing his duties or is working against the provisions of the Act or any rules made thereunder. (2) The State Government may, while ordering the removal under sub-section (1), also order that such President, Vice-President or Chairman of any committee shall be disqualified to hold such post for the next term : Provided that no such order under this section shall be passed unless a reasonable opportunity of being heard is given." 2. The removal of the petitioner is on the ground that he does not belong to the other backward category and yet got elected as President on the basis of temporary caste certificate by declaring himself to be belonging to a "Khati" caste. 3. The facts briefly are that the petitioner contested election for the post of President, Municipal Committee, Junnardeo, held in November, 2004. The said post was reserved for other backward class category. The petitioner contested on the anvil of temporary caste certificate issued in his favour on 27.10.2004. 4. A show cause notice dated 29.4.2006 under section 41-A of the Act of 1961 was issued to the petitioner calling upon him as to why he be not removed from the post of President, Municipal Committee, Junnardeo, having contested the election on the basis of bogus caste certificate. This show cause notice though was initially stayed in Writ Petition No.74531 06 by order dated 20.5.2006 but the stay was subsequently vacated on 5.12.2006 and the State Government was directed to decide the matter.Consequent thereupon the State Government vide impugned order dated 6.3.2007 removed the petitioner from the post of President, Municipal Committee, Junnardeo. It is this order which is being challenged in the present writ petition. 5. It is this order which is being challenged in the present writ petition. 5. Few facts existing prior to the issuance of show cause notice would be necessary for just appreciation. 6. The order of issuance of caste certificate and the election of the petitioner was subjected to challenge by the candidates who lost the election, forming subject-matter of Case No.1/04, 3/05 and 4/05 in the Court of First Additional District Judge, Chhindwara, whereas, case bearing No. 1/04 is allegedly dismissed for want of prosecution by order dated 30.7.2005; other cases, viz, 3/05 and 4/05 are reportedly pending. In the meantime, the case regarding grant of permanent caste certificate bearing Revision Case No.122-B/21/04-05 instituted at the instance of the petitioner was processed by the Sub-Divisional Officer, Revenue, Junnardeo, who by his order dated 5.9.2005 rejected the plea of the petitioner for grant of permanent caste certificate thus refusing to acknowledge petitioner as belonging to a "Khati" caste. The order was passed on the basis of the enquiry conducted by the Tehsildar. The order spells out that "çdj.k esa çLrqr leLr nLrkostksa ,oa rglhynkj tqUukjnso ds }kjk çLrqr tk¡p çfrosnu ,oa çdj.k ds xq.k&nks'kksa ij fopkj mijkar vkosnd uohy dqekj [kqn dh tkfr Hk[kkrh gksuk ugha ik;k tkrk gS A mDr vkosnd dk LFkk;h tkfr çek.ki= dk vkosnu [kkfjt gks dj nkf[ky gks A** 7. Petitioner challenged the order dated 5..9.2005 in Writ Petition No. 10691/05. The said writ petition was decided finally on 8.5.2006 in the following terms: "To appreciate the aforesaid contentions, it may be seen that the petitioner was an applicant for getting the caste certificate before the Sub-Divisional Officer. Though a provisional caste certificate was issued to the petitioner but when the petitioner during course of the enquiry moved to the authority for dismissal of the application, it was not necessary for the authority to decide the case on merits. Aforesaid right is an unfettered right of the petitioner to get his application dismissed at any stage of proceeding. What was the effect of the aforesaid dismissal, it ought to have been seen by the authority in accordance with law. So far as right of the petitioner for withdrawal or dismisal of the application is concerned, it is unfettered right of the petitioner. Until and unless such prayer is made, aforesaid authority ought to have decided the matter on merits. So far as right of the petitioner for withdrawal or dismisal of the application is concerned, it is unfettered right of the petitioner. Until and unless such prayer is made, aforesaid authority ought to have decided the matter on merits. When the petitioner made such prayer for dismissal of the application for grant of permanent caste certificate, the authority ought to have dismissed the application and erred in proceeding with the matter. The consequences of dismissal of the aforesaid application ought to have been considered by the concerned authority in accordance with law but merely on the ground that the petitioner contested the election on the strength of temporary caste certificate will not be a ground to deny the dismissal of the application as prayed by the petitioner. In view of the aforesaid, this petition is allowed. Order Annexure P-21 dated 5.9.2005 passed by the SDO Junnardeo is hereby set aside and the application filed by the petitioner for grant of permanent caste certificate stands dismissed as prayed by the petitioner vide Annexure P-12 and P-19." 8. The outcome of the aforesaid order was that the temporary caste certificate issued in favour of the petitioner on 27.10.2004 came to expire after six months and there was no permanent caste certificate in favour of the petitioner that he belonged to "[kkrk" caste. 9. The challenge mainly is on the ground that the petitioner is not afforded a reasonable opportunity of hearing as a result whereof the petitioner did not get the occasion to bring forth the facts that the petitioner belongs to a caste "Khati" and the caste certificate was issued in favour of the petitioner in March, 1996, which the petitioner deposited with the Election Officer while he was contesting election for Member Director of Adim Jati Sewa Sahkari Samiti Maryadit, Dungaria, tahsil Junnardeo, District Chhindwara. Non-grant of reasonable opportunity of hearing, it is urged, has prejudiced the cause of the petitioner to seek justice and the order of removal based on such defective proceeding is not tenable in the eyes of law. 10. The respondents on the other hand refute the averments that the petitioner was not given a reasonable opportunity of hearing. Non-grant of reasonable opportunity of hearing, it is urged, has prejudiced the cause of the petitioner to seek justice and the order of removal based on such defective proceeding is not tenable in the eyes of law. 10. The respondents on the other hand refute the averments that the petitioner was not given a reasonable opportunity of hearing. It is urged that the petitioner was not a member belonging to the other backward class and thus was not eligible to contest the election of President, Municipal Committee, Junnardeo, reserved for OBC category and yet in order to contest the election as an OBC candidate he obtained the certificate of caste "Khati", a provisional one, valid for six months. It was incumbent upon him to have obtained the permanent caste certificate. Instead the petitioner withdrew the proceedings. It is further contended that the matter where under the provisional caste certificate issued was processed, the same culminated into an order dated 5.9.2005 wherein it was held that the petitioner does not belong to a Khati caste and his application was rejected. Thus, it is urged, that petitioner being not a member of the "Khati" caste was rightly held to be not entitled to hold the post of President, Municipal Committee, Junnardeo. It is, therefore, stated that the order impugned is neither perverse nor bad in law. 11. Considered the rival submissions and perused the respective pleadings and record. 12. True it is that the order dated 4.5.2005, whereby, the claim of the petitioner for grant of certificate of "Khati" caste was rejected, succumbed to the order dated 8.5.2006 passed in Writ Petition No.1 0691/05, but the order rested the onus on the petitioner to prove that he belongs to "Khati" caste. This onus, the petitioner has failed to discharge, and any amount of reasonable opportunity will not mitigate the factor that he does not belong to Khati caste. The petitioner when subjected to show cause notice, about the credibility of a caste certificate which the petitioner states that he obtained "under misapprehension of law", tenders no explanation and in fact makes no effort to negative the same. He has thus to blame himself as he failed to discharge the burden that he belongs to an other backward caste. 13. He has thus to blame himself as he failed to discharge the burden that he belongs to an other backward caste. 13. In M/s. Fedco (P) Ltd. and another v. S.N. Bilgrami and others [ AIR 1960 SC 415 ], their Lordships were pleased to observe: "(8) The requirement that a reasonable opportunity of being heard must be given has two elements. The first is that an opportunity to be heard must be given; the second is that this opportunity must be reasonable. Both these matters are justiciable and it is for the Court to decide whether an opportunity has been given and whether that opportunity has been reasonable. In the present case, a notice to show cause against the proposed order was given; it was stated in the notice that the ground on which the cancellation was proposed was that the licences had been obtained fraudulently;and later on a personal hearing was given. It must therefore be held that the requirement that an opportunity to be heard must be given was satisfied ....." 14. In K.L. Tripathi v. State Bank of India [ (1984)1 SCC 43 ], their Lordships were pleased to observe: "It is not possible to lay down rigid rules as to when the principles of natural justice are to apply, nor as to their scope and extent .....There must also have been some real prejudice to the complainant; there is no such thing as merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and circumstances of the case, the nature of the inquiry, the rules under which the Tribunal is acting, the subject-matter to be dealt with, and so forth." 15. In the case at hand it is observed that the petitioner had challenged the show cause notice issued to him under section 41-A of the Act of 1961 in Writ Petition No.7453/06 wherein initially a stay was granted but subsequently by order dated 5.12.2006 the same was vacated. The petitioner thereafter was called upon to appear on 1.2.2007 and 6.2.2007.The petitioner appeard on 6.2.2007 and presented his case. In the teeth of these facts the arguments of the petitioner that he was not afforded an opportunity of hearing cannot be accepted. The petitioner had ample opportunity to represent his case. The petitioner thereafter was called upon to appear on 1.2.2007 and 6.2.2007.The petitioner appeard on 6.2.2007 and presented his case. In the teeth of these facts the arguments of the petitioner that he was not afforded an opportunity of hearing cannot be accepted. The petitioner had ample opportunity to represent his case. Furthermore, the impugned order being based on cogent material and facts on record does not call for any interference. 16. Consequently, petition fails and is hereby dismissed. However, no costs.