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Madhya Pradesh High Court · body

2017 DIGILAW 889 (MP)

Geeta Suresh Chaudhari v. State of M. P.

2017-08-03

ANAND PATHAK

body2017
ORDER 1. With consent, heard finally. 2. The present writ petition under Article 226 of the Constitution of India has been preferred by the petitioner, who is the elected president of the Municipal Council, Sabalgarh District Morena and is being crestfallen by the action of the respondents in as much as, respondent No.2 has referred the matter to the State Government on 28.3.2017 under section 47 of the Municipalities Act, 1961 (hereinafter referred as the “Act of 1961”) for recall of the petitioner on the ground that more than 3/4 of the total Councillors have moved a motion of recall against the present petitioner. 3. Precisely stated facts of the case are that petitioner contested the election on the post of president of Municipal Council, Sabalgarh (hereinafter referred as “Council”) and got elected and her election was notified vide notification dated 31.12.2014. Municipal Council consist of 18 Councillors in total. It appears that some of the Councillors of municipalities were engaged in some alleged illegal activities and, therefore, proceedings under section 41 of the Act of 1961 has been initiated. Copy of proceedings under section 41 of the Act of 1961 are placed as (Annexure P-12) with the petition. Since 14.12.2015, matter was pending before the Collector, District Morena for consideration and to take consequential follow up steps under the provisions of section 41 of the Act of 1961.“Proceedings were pending at the time of filing of this petition on 18.4.2017. Now at the time of arguments, it was informed that on 24.7.2017 arguments in the said proceedings have been advanced and case has been kept reserved for orders. The fate of 7 Councillors is to be decided by the said proceedings pending before the Collector under section 41 of the Act of 1961. During pendency of the said proceedings, it appears that 16 Councillors moved a proposal against the present petitioner under section 47 of the Act of 1961 for recalling the petitioner from the post of president of the Municipal Council. The said proposal is placed as (Annexure P-14) with the petition. The said proposal was signed by 16 Councillors (out of total 18 Councillors) on 28.3.2017. The Collector on the same date 28.3.2017 itself considered the proposal so passed and forwarded the case to the State Government on the same date for initiating the proceedings for recall against the present petitioner. The said proposal was signed by 16 Councillors (out of total 18 Councillors) on 28.3.2017. The Collector on the same date 28.3.2017 itself considered the proposal so passed and forwarded the case to the State Government on the same date for initiating the proceedings for recall against the present petitioner. The said process of recall as forwarded by the Collector is the bone of contention and has been put to challenge by the petitioner through this writ petition under Article 226 of the Constitution of India. 4. Learned counsel for the petitioner raised the point on the basis of section 47 of the Act of 1961 and submits that as per the sub-section (2) of section 47 of the Act of 1961, the Collector has to consider the proposal made by the Councillors objectively and after considering the same, Collector has to refer the matter to the State Government. Here, the Collector has not considered the matter objectively and shown undue haste in initiating the process. During course of event, petitioner submits that respondent No.3 Collector has proceeded with undue haste. His further grievance is that case of 7 Councillors who were signatories in the proposal was pending consideration before the same authority for last 20 months and without deciding the case of those Councillors regarding disqualification, the said process has been initiated which is arbitrary and illegal.“Unless the proceedings under section 41 of the Act of 1961 against 7 Councillors concludes, no steps could have been taken on the basis of inclusion of those 7 Councillors in the proposal because their own election was under doubt. It is further submitted that the Collector has deliberately kept the proceedings under section 41 of the Act of 1961 for almost 2 years against those Councillors and once the minimum bar for initiating a proposal (2 years) under section 47 of the Act of 1961 completed in January, 2017 then immediately those Councillors proceeded with the proposal in March, 2017 for recall of the petitioner and that amounts to arbitrary exercise of power. 5. Learned counsel for the petitioner further submits that there is no bar for this Court to entertain this writ petition under Article 226 of the Constitution of India because the case in hand is of arbitrary and illegal exercise of power and proceedings smacks mala fide. 5. Learned counsel for the petitioner further submits that there is no bar for this Court to entertain this writ petition under Article 226 of the Constitution of India because the case in hand is of arbitrary and illegal exercise of power and proceedings smacks mala fide. He further refers section 22 of the Municipalities Act, 1961 (regarding Election Petition) and submits that petitioner has no ground available to challenge in the election petition because the ground mentioned in section 22 of the Act of 1961 are those grounds which are meant to challenge the election and not the proceedings for recall. He referred the judgment of Full Bench of this Court in the matter of State of M.P. and others v. Mahendra Kumar Saraf [ (2005)3 JLJ 251 = 2005(4) MPHT 185 ], as well as Smt. Naravadi Bai Choudhary and Others v. State of M.P. and others [ (2005)2 JLJ 379 = 2005(2) MPHT 119 ], and submits that the Collector had to record the satisfaction and not recording any satisfaction as per section 47(2) of the Act of 1961 vitiates the proceedings and rendered them void ab initio. He also referred the decision of this Court in the matter of Satya Prakashi Parsadiya v. State of M.P. and Others [ 2008(2) MPLJ 372 ], and submits that the petition under Article 226 of the Constitution of India is maintainable challenging the proceedings of recall initiated by“the District Collector. 6. Counsel for the petitioner has filed an application vide I.A. No.3222/2017, for urgent relief and along with that placed three affidavits of 3 Councillors; namely- Ramswaroopi Tagore, Lakhan Singh Barai and Prem Chand Gupta and submits that the said Councillors have specifically made a statement on oath that they were misrepresented and they made signatures over the proposal for recall under the mistaken belief that they are making signatures over application for pending developmental work in the area. They pleaded conspiracy in their respective affidavits. 7. Per contra, learned counsel for respondents No.1 to 4/ State submits that the petition is not maintainable in view of the provisions incorporated under Article 243ZG of the Constitution of India wherein once the election process is started then appropriate remedy is only election petition and not writ petition under Article 227 of the Constitution of India. 8. 7. Per contra, learned counsel for respondents No.1 to 4/ State submits that the petition is not maintainable in view of the provisions incorporated under Article 243ZG of the Constitution of India wherein once the election process is started then appropriate remedy is only election petition and not writ petition under Article 227 of the Constitution of India. 8. Similarly respondents/State raised the ground of nonimpleadment of necessary parties, as according to counsel for the respondents, 7 Councillors who were facing proceedings under section 41 of the Act of 1961 are necessary parties in the petition and no relief can be sought against them unless they are impleaded. He supported the proceedings undertaken by the Collector by submitting that the Collector has recorded his satisfaction in the matter and thereafter referred it to the State Government for proceedings for recall. He also referred that notification has been issued by the Election Commission on 7.7.2017 and, therefore, petitioner has no ground left to adjudicate under jurisdiction of Article 226 of the Constitution of India and petitioner has the remedy of election petition. 9. Learned counsel for respondent No.5 also vehemently opposed the prayer made by the petitioner and submits that petitioner could not establish the plea of mala fide. Councillors are still working as Councillors and unless they are declared“otherwise in the proceedings under section 41 of the Act of 1961 they are to be treated as Councillors and no doubt about their position can be raised. He also reiterated the prayer of alternative remedy and submits that the petition is not maintainable in view of the Chapter VIII-A of the M.P. Nagarpalika Nirvachan Niyam, 1994 and the definition of election as substituted by the amendment Act, 2000 wherein the election includes the “election in relation to recall” and therefore, the statue provides procedure for election/ recall then present petition is not maintainable. He also referred the judgment of the Hon'ble apex Court in the matter of Mohan Lal Tripathi v. District Magistrate, Rae Bareily and others [ AIR 1993 SC 2042 as well as Shaji K. Joseph v. Viswanath and others [ (2016)4 SCC 429 ] and submits that the election dispute can only be resolved through election petition. He also referred the judgment of the Hon'ble apex Court in the matter of Mohan Lal Tripathi v. District Magistrate, Rae Bareily and others [ AIR 1993 SC 2042 as well as Shaji K. Joseph v. Viswanath and others [ (2016)4 SCC 429 ] and submits that the election dispute can only be resolved through election petition. He supported the case on merits and submits that the Collector has reached to the subjective satisfaction on the proposal given by the Councillors and no arbitrariness and illegality has been caused. Learned counsel for respondent No.5 also referred the affidavits sworn in by 3 Councillors (as referred by counsel for the petitioner) and submits that the Collector had to only ascertain whether the signatures have been made by the Councillors over the proposal or not and here the said Councillors who have given the affidavits have themselves admitted the fact that they made their signatures over the proposal albeit through misrepresentation, therefore, subsequent affidavits of 3 Councillors have no meaning. 10. Heard the learned counsel for the parties at length and perused the documents appended thereto. 11. Before adverting to decide the controversy in question, it would be apposite to take note of the provisions of sections 41 and 47 of the Municipalities Act, 1961. The said provisions reads as under :- “41:- Removal of Councillor (1) The Collector“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 Public or of the Council; or (a-1) if it is found that he does not belong to the reserved category for which the seat was reserved; or (b) if the Council has, by a resolution supported by atleast two third of the total number of Councillors, recommended that the Councillor is not fit to continue as a Councillor on account of misconduct in the discharge of his duties or disgraceful conduct. (2) The Collector may at any time, remove any elected Councillor if he, being a legal practitioner, acts or appears on behalf of any other person against the Council in any legal proceedings or against the State Government in any such proceedings relating to any matter in which the Council or has been concerned, or acts or appears on behalf of any person in any criminal proceedings instituted by or on behalf of the Council against such person. (3) The Collector may, while ordering the removal under this section, also order that such Councillor shall not be eligible to become a Councillor of a Municipal Council or Nagar Panchayat, as the case may be, for its next term: Provided that no resolution recommending the removal of any Councillor shall be passed by the Municipal Council or Nagar Panchayat, as the case may be, nor any such order of removal shall be passed by the Collector unless such Councillor has been given a reasonable opportunity of showing cause. (4) An appeal against the order passed under sub-section (1), (2), or (3) of this section 40 shall lie to the State Government within thirty days of the date on which the order is conveyed to the aggrieved party. The State Government may after giving a reasonable opportunity of being heard, pass such order on the appeal as it may think fit.” 12. Similarly section 47 of the Act of 1961 reads as under :- “47 (1) Every President of a Council shall forthwith be deemed to have vacated his office if he is recalled through a secret ballot by a majority of more than half of the total number of voters of the municipal are casting the vote in accordance with the procedure as may be prescribed : Provided that no such process of recall shall be initiated unless a proposal is signed by not less“than three fourth of the total number of the elected Councillors and presented to the Collector : Provided further that no such process shall be initiated :- (i) within a period of two years from the date on which such President is elected and enters his office; (ii) If half of the period of tenure of the President elected in a by-election has not expired : Provided also that process for recall of the President shall be initiated once in his whole term. (2) The Collector, after satisfying himself and verifying that the three fourth of the Councillors specified in sub-section (1) have the proposal of recall, shall sent the proposal to the State Government and the State Government shall make a reference to the State Election Commission. (3) On receipt of the reference, the State Election Commission shall arrange for voting on the proposal of recall in such manner as may be prescribed.” 13. For the purpose of arriving to a decision in this petition sub-section (2) of section 47 of the Act of 1961 is important. Perusal of sub-section (2) of the Act of 1961 indicates that it provides for an action to be taken by the Collector on the proposal of the president. 14. For the purpose of deciding this petition, sub-section (2) of the aforesaid provision is important. A perusal of sub-section (2) indicates that it provides for action to be taken by the Collector on the proposal received by him for recalling of the President. The section mandates the Collector to satisfy himself and verify that 3/4 of the Councillors have submitted the proposal. The requirement of sub-section (1) have to be complied with, it is only then that the proposal can be forwarded to the State Government for further action. The word “the Collector after satisfying himself and verifying” in sub-section (2) are the important words and the main thrust of the argument advanced by counsel for the petitioner was that in the present case Collector himself has not arrived at the satisfaction but the satisfaction has been arrived at by a delegated authority, satisfaction and recommendation of the“said authority is accepted by the Collector. At this stage, it would be appropriate to refer to some of the judgments which are applicable, even though no judgment directly on the question is brought to notice of this Court but certain observations are available in the case of Anubha Munjare v. State Election Commission and others [ILR (2007) MP 1203]. In the said case, Division Bench of this Court in para 14 has observed as under :- “14. In the said case, Division Bench of this Court in para 14 has observed as under :- “14. ....On a reading of section 47 in entirety and especially sub-section (2) of section 47 there can be no scintilla of doubt that the Collector has to satisfy himself with regard to the conditions precedent engrafted under section 47(1), namely, that the proposal has been signed by not less than 3/4 of total number of elected Councillors, the proposal has not been initiated within a period of two years from the date on which such President is elected and enters his/ her office; that half of the period of tenure of the President elected in byelection has expired; and that the process for recall is the first proposal in the whole term of the elected candidate and he must verify the proposal that 3/4 of the total number of elected Councillors have signed the proposal for recall..........” (Emphasis supplied) 15. It is clear that the Division Bench in the aforesaid case has clearly emphasized that it is the Collector who is to satisfy himself with regard to compliance with the condition prescribed in section 47(1) for proceedings under sub-section(2). Similarly, another Division Bench of this Court while considering the true meaning of section 47 in the case of Narayan Nagina v. State of M.P. and others [ 2004(1) JLJ 303 = 2004(1) MPLJ 341 = 2004(1) MPHT 312 ], in para 10 has observed that proceedings for recall are initiated when the Collector himself is satisfied that the proposal is signed by 3/4 of the Councillors after verification. It is therefore, clear that emphasis in the sub-section(2) and requirement of law is that, it is the Collector who is required to arrive at the satisfaction and the subjective satisfaction is that of the Collector concerned. “ 16. The Division Bench of this Court in the matter Anubha Munjare (supra), has considered the import of section 47 of the Act of 1961 and emphasis that it is the Collector who has to satisfy himself first with the condition of section 47(1) for proceedings further under sub-section (2) of section 47 of the Act of 1961. “ 16. The Division Bench of this Court in the matter Anubha Munjare (supra), has considered the import of section 47 of the Act of 1961 and emphasis that it is the Collector who has to satisfy himself first with the condition of section 47(1) for proceedings further under sub-section (2) of section 47 of the Act of 1961. Similarly, another Division Bench of this Court while considering the true meaning of section 47 of the Act of 1961 in the case of Narayan Nagina v. State of M.P. and others [ 2004(1) JLJ 303 = 2004(1) MPLJ 341 ], has observed that it is the Collector who is required to arrive at a subjective satisfaction while initiating the proceedings under section 47 of the Act of 1961. 17. The question arises, as to whether in the present case, subjective satisfaction arrived at, is of the Collector or not. The Collector in the present case received the proposal on 28.3.2017. On 28.3.2017 itself, the Collector drew the proceedings on note-sheet in which reference of recording of statements of Councillors finds place and on the same date, the Collector has referred the matter to the State Government for initiation of proceedings for recall. The undue haste shown by the Collector itself smacks malafide specially when the case of 7 Councillors under section 41 of the Act is placed in juxtaposition to this proceedings. At the one hand, same authority kept pending, the case of disqualification of 7 Councillors under section 41 of the Act of 1961 for almost 20 months and on the other hand, same authority (i.e. the Collector) proceeded at such brisk pace in proceedings under section 47 of the Act of 1961, which shows extraneous considerations. The Hon'ble apex Court in the matter of Bahadursinh Lakhubhai Gohil v. Jagdishbhai M. Kamalia and others [ (2004)2 SCC 65 ], Indarpreet Singh Kahlon and others v. State of Punjab and others [ (2006)11 SCC 356 ], as well as R.S. Garg v. State of U.P. and others [ (2006)6 SCC 430 ], has held that undue haste shown by the authority amounts to mala fide. 18. The arrival of subjective satisfaction of the Collector is not procedural. He has to satisfy himself with regard to compliance with the conditions prescribed in section 47 of the Act of 1961. 18. The arrival of subjective satisfaction of the Collector is not procedural. He has to satisfy himself with regard to compliance with the conditions prescribed in section 47 of the Act of 1961. Here, the pace of the proceedings and contradictions crept into the proceedings vis-a-vis proceedings under section 41 of the Act of 1961 constitutes the mala fide and even if the Collector would have satisfied himself even then hurried pace of the authority amounts to mala fide. 19. The Elections are the Festivals of Democracy and with the growing trend, the process of recall is to be treated in that spirit, therefore, revelry of the festival should not be diluted by any mischief or an action that appears to be mischief. Fountain of democracy should be so pristine that camaraderie (or nexus) of executives with public representatives may not impure it. 20. Here, it appears that the Collector ignored the pending proceedings against 7 Councillors under section 41 of the Act 1961. Although those proceedings are not under challenge in this writ petition but final result of the said proceedings would have affected the fate of this case because if the authority ultimately comes to the conclusion that those 7 Councillors are liable to be disqualified then this may create anomalous situation in a way that arguments of the petitioner would stand vindicated, that proceedings under section 41 of the Act of 1961 was kept on lingering till completion of tenure of 2 years of petitioner so that proposal for recall may be initiated after January, 2017 when petitioner completed tenure of 2 years as president of the council and which is a sine qua non for initiation of proposal for removal of president through recall. Similarly, in case of their disqualification, requirement of 3/4 Councillors would have come under scanner and question of quorum for initiation of proposal would have come for consideration. 21. Another aspect although pleaded subsequently by the petitioner by way of filing application but assumes importance“in the factual matrix of the case, wherein 3 Councillors have categorically denied their involvement in the proposal for recall although signed by them. If the Collector would have satisfied himself objectively without undue haste then perhaps this fact would have surfaced then and there only. If the Collector would have satisfied himself objectively without undue haste then perhaps this fact would have surfaced then and there only. These 3 Councillors have categorically admitted the fact that they became the victim of misrepresentation wherein they went with other Councillors under the mistaken belief that they are signing the application for raising the developmental issues of the area. They also alleged conspiracy in categorical terms, therefore, the whole gamut of facts denotes that proposal has been sent at such a pace where it appears that respondents were hell bent upon to dislodge the petitioner. If these 3 Councillors are removed from the list of 16 Councillors then total numbers comes to 13, which is not 3/4 of its total strength (total number of Councillors are 18). This aspect also assumes importance in view of manner in which whole proceedings were managed. 22. Petitioner has been elected for 5 years to work as President of Council. From prevailing circumstances and rising democratic aspirations of public at large, concept of recall has been introduced in the electoral functioning of different democratic bodies of the country. recall gives dis-satisfied electorate the right to propose between two elections that their representative be removed by another one in accordance with law. 23. “Popular will”, in ancient times, partially in Lichhavi Republic and Athenian Democracy and partially in modern times inspired from the Swiss experiment, the concept of recall has been borrowed in Indian Political Architecture and it is here to stay because of rising democratic aspirations of the electorate but with a caveat that the elected candidate should not lie at the mercy of nexus between political and administrative executives because in that condition “Popular Will” will always be sacrificed at the altar of political maneuvering. 24. Now the objection in respect of maintainability of the writ petition is to be dealt with. Learned counsel for the respondents have raised the question as regards maintainability of this petition as according to them Article 243 ZG of the Constitution of India puts an embargo to entertain the petition under Article 226 of the Constitution of India. 24. Now the objection in respect of maintainability of the writ petition is to be dealt with. Learned counsel for the respondents have raised the question as regards maintainability of this petition as according to them Article 243 ZG of the Constitution of India puts an embargo to entertain the petition under Article 226 of the Constitution of India. For ready reference, Article 243 ZG is reproduced as under :- “243 ZG:- Bar to interference by Courts in electoral matters- Notwithstanding anything in this Constitution - (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 243 Z A shall not be called in question in any Court; (b) no election to any Municipality shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State.” 25. The relevant statue i.e. Act of 1961 also gives a mechanism of election petition under section 20 of the Act of 1961 which reads as under :- 20. Election petitions :- (1) No election or nomination under this Act shall be called into question except by a petition presented in accordance with the provisions of this section. (2) Such petition may be presented on one or more of he grounds specified in section 22- (a) by any candidate at such election or nomination; or (b) (i) in the case of an election of a Councillor, by any voter of the ward concerned ; (ii) in the case of a nomination of Councillor, by any Councillor; (iii) in the case of election of President by any voter of the Municipal area; to the District Judge, where such election or nomination is held within the revenue district in which the Court of the District Judge is situate, and in any other case, to the Additional District Judge having the permanent seat of his Court within the revenue district in which such election or nomination is held and if there be more than one such“Additional District Judge within the said revenue district, to such one of them as the District Judge may specify for the purpose(herein after such district Judge or Additional District Judge referred to as Judge. (3) No petition presented under sub-section (2), shall be admitted unless - (i) it is presented within thirty days from the date on which the result of such election or nomination was notified in the Gazette; and (ii) it is accompanied by a Government Treasury receipt showing a deposit of two hundred rupees, in the case of election or nomination to Municipal Council and one hundred rupees, in the case of election or nomination to Nagar Panchayat. (4) A petitioner shall join as respondents to his petition- (a) where the petitioner, in addition to claiming a declaration that the election or nomination, as the case may be, of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected or nominated, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; and (b) any other candidate against whom allegations of any corrupt practice are made in the petition. (5) an election petition shall- (a) contain a concise statement of the material facts on which the petitioner relies ; (b) set forthwith sufficient particulars, the ground or grounds on which the election or nomination is called in question; (c) be signed by the petitioner and verified in the manner prescribed in the Code of Civil procedure,1908 (V of 1908), for the verification of pleadings.” 26. Similarly, relief that may be claimed by the petitioner is provided in section 21 of the Act of 1961 which is reproduced as under :- 21- Relief that may be claimed by petitioner- (1) A petitioner may claim- (a) a declaration that the election or [nomination] of all any of the returned candidates is void; and “(b) in addition thereto a further declaration that he himself or any other candidate has been duly elected. (c) The expression "returned candidate" means a candidate whose name is notified in the Gazette under section 45. 27. Similarly section 22 provides the Grounds for declaring the election or (nomination) to be void. (c) The expression "returned candidate" means a candidate whose name is notified in the Gazette under section 45. 27. Similarly section 22 provides the Grounds for declaring the election or (nomination) to be void. “22: Grounds for declaring election or Nomination to be void.- (1) Subject to the provisions of sub-section (2) if the Judge is of the opinion- (a) that on the date of his election or nomination a returned candidate was not qualified or was disqualified, to be chosen as a President or a Councillor, or (b) that any corrupt practice has been committed by a returned candidate or his agent or by any other person with the consent of a returned candidate or his agent; or (c) that any nomination paper has been improperly rejected; or (d) that the result of the election, or nomination in so far as it concerns a returned candidate has been materially affected- (i) by the improper acceptance of any nomination; or (ii) by the improper acceptance or refusal of any vote or reception of any vote which is void; or (iii) by the non-compliance with the provisions of this Act or of any rules or orders-made there under save the rules framed under section 14 in so far as they relate to preparation and revision of list of voters; he shall declare the election or nomination of the returned candidate to be void. (2) If in the opinion of the Judge a returned candidate has been guilty by an agent of any corrupt practice, but the Court is satisfied- (a) that no such corrupt practice was committed at the election or nomination by the candidate, and every such corrupt practice was committed contrary to the instructions, and without the consent of the candidate; (b) that the candidate took all reasonable means for preventing the commission of corrupt practices at the election or nomination; and (c) that in all other respect the election or nomination was free from any corrupt practice“on the part of the candidate or any of his agents; then, the Judge may decide that the election or nomination of the returned candidate is not void.” 28. Learned counsel for the respondents has also referred the definition of election as provided in section 2(d) of the M.P. Nagar Palika Nirvachan Niyam, 1994 which includes election in relation to recall the president of a Municipality also. Learned counsel for the respondents has also referred the definition of election as provided in section 2(d) of the M.P. Nagar Palika Nirvachan Niyam, 1994 which includes election in relation to recall the president of a Municipality also. Same is further reproduced for ready reference :- 2(d):-“Election” means an election to fill a seat or seats in a Municipality and includes the election in relation to recall the Mayor of a Municipal Corporation or the President of a Municipality or Nagar Panchayat from his office as the case may be.” 29. Chapter VIII-A as interpreted by the amendment Act of 2000 deals in respect of polling in relation to recall of the Mayor/president from his office. 30. If the contention of the respondents are accepted then it is established that the election process involves recall also because definition of election as incorporated in the year 2000 includes the process of recall into its ambit. It means the election includes process for recall also, therefore, on this aspect, contention of the petitioner cannot be accepted that election does not include recall, but here in the present case, it has to be seen that whether; petitioner has any remedy in respect of election petition or not and whether the same is effective and efficacious in view of the facts and circumstances of the case. Perusal of sections 20, 21 and 22 of the Act of 1961 reflects that the ground for declaring the election or nomination to be void are grounds which may be available to a person who is challenging the fresh election and not the process which led to the situation of recall. Petitioner may have opportunity to challenge the process of recall after the notification of Election Commission but petitioner has no remedy in the statue to challenge the circumstances which led to recall. Grounds as enumerated in section 22 of the Act of 1961 do not includ grounds for recallin expressed terms and if grounds are not available to the petitioner in expressed terms to agitate, then election petition does not offer effective and efficacious remedy to the petitioner and, therefore, petitioner cannot be rendered remedy less and on this count also, the writ petition under Article 226 of the Constitution of India is maintainable. Mala fide and arbitrary exercise of power of authorities led to the situation wherein the Collector forwarded the proposal to the State Government and State Government referred the matter to the Election Commission and Election Commission notified the same to conduct the process of recall. Here, petitioner is challenging the arbitrary exercise of power exercised by the respondents which led to the process of recall, therefore, petitioner has no alternative remedy which is effective and efficacious in nature by way of election petition. Sections 20, 21 and 22 of the Act of 1961 nowhere contemplate such exigencies which are faced by the petitioner. 31. Normally, in a matter pertaining to recall of an elected representative and passing of no confidence motion when the statutory remedies are available, interference is not made by this Court exercising jurisdiction under Article 226 of the Constitution of India, but at the same time, it is well settled in law that if the breach of statutory provisions, violation of fundamental rights and action taken to be contrary to law are pointed out, interference in a petition under Article 226 of the Constitution of India can be made. 32. The Full Bench of this Court in the matter of Naravadi Bai (supra), has held that the bar put by the Article 243 O and 243 ZG of the Constitution of India cannot be read in the manner so as to curtail the constitutional power conferred on the High Court under Article 226 of the Constitution of India. The plenary nature of power as contained in Article 226 of the Constitution of India, can be invoked to prevent any illegality notwithstanding any constitutional (Article 243 ZG) or statutory“(Election Petition) bar from coming in way of exercise of power of judicial review. 33. Recently, the Division Bench of this Court in the matter of Pradhuman Verma v. State of M.P. and others (delivered on 22 February, 2017 in Writ Appeal No.61/2017) has affirmed this view and held the writ petition under Article 226 of the Constitution of India in almost similar fact siutaion as maintainable. In similar fact situation, the writ Court in the matter of Satya Prakashi Parsadiya (supra), has interfered in the matter and ruled out the objection raised by then respondents regarding maintainability of the writ petition. In similar fact situation, the writ Court in the matter of Satya Prakashi Parsadiya (supra), has interfered in the matter and ruled out the objection raised by then respondents regarding maintainability of the writ petition. Similar is the case here, where the whole election process leading to recall appears to have been perpetrated by the undue haste shown by respondent No.2/ Collector. Although, the proceedings under section 41 of the Act of 1961 are not the subject matter of this writ petition but the pendency of the said proceedings for almost 20 months and disposal of the proceedings under section 47 of the Act of 1961 instantly, speaks for themselves. 34. One more fact is worth consideration that petition was filed on 18.4.2017 and before that, petitioner has sent representation also (on 3.4.2017), immediately after 28.3.2017 to the Principal Secretary, Urban Administration and Environment Department/ respondent No.1 and thereafter, she immediately rushed to this Court whereas Election Commission has issued notification for election on 7.7.2017 and till then respondents sought adjournment time and again for filing reply, therefore, it was the fault of the respondents wherein they lingered on the matter and avoided the hearing, therefore, the ground of issuance of notification by Election Commission cannot be given much credence in given fact situation. Respondents cannot be given premium for their own default and delay. This Court has sufficient power under Article 226 of the Constitution of India regarding moulding of reliefs “(See:- (2016)9 SCC 749 State of Uttar Pradesh and others v. Dinesh Singh Chauhan, [ (2009)14 SCC 132 ], State of West Bengal and Another v. West Bengal Registration Copywriters Association and Another). Even otherwise petitioner has challenged the initiation of process under section 47 of the Act of 1961 and once petitioner has established the mala fide on the part of the respondents while processing the proposal then, subsequent action of issuance of notification has no material bearing in the controversy and petitioner cannot be thrown out on the ground of issuance of notification by the Election Commission. 35. The Hon'ble apex Court in the matter of Election Commission of India v. Ashok Kumar and others [ (2000)8 SCC 216 ], has clarified the position in this regard that although writ Court may be circumspect while entertaining the petition but in exceptional circumstances, interference can be made and scope of judicial review exists on well settled parameters. 35. The Hon'ble apex Court in the matter of Election Commission of India v. Ashok Kumar and others [ (2000)8 SCC 216 ], has clarified the position in this regard that although writ Court may be circumspect while entertaining the petition but in exceptional circumstances, interference can be made and scope of judicial review exists on well settled parameters. Fact of the case demands interference under extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. The present case pertains to recallwherein petitioner has to face the electorate with allegations as contained in the proposal, therefore, her position becomes vulnerable and circumstances prevailing at the time of voting for recall are bit different than the circumstances existing at the time of voting for election of the candidate. In a way, candidate is not on a level playing field because he has to justify his/ her position vis a vis the allegations levelled. In this aspect, it is imperative that process of recall should be such which evokes credibility, transparency and fairness so that the concept devised as a progressive tool of democracy is not utilized by vested interests to achieve electoral gains from back doors. 36. The judgments as referred by the respondents also carve out exceptional circumstances, wherein indulgence can be“shown under the writ petition under Article 226 of the Constitution of India to secure the ends of justice. This is one such instance, where arbitrariness and illegality coupled with malice needs course-correction. Election Commission and other Councillors are not necessary party because no relief is sought against them. As such, at the time of filing of petition, Election Commission was not in picture and Commission could not have stood for the action of other respondents. Here, the challenge was mainly against the action of respondent No.2. Notification dated 7.7.2017 is consequential only. 37. In the attending facts and circumstances of the case as well as on the basis of cumulative analysis, petition is maintainable under Article 226 of the Constitution of India and election petition is not an effective remedy for challenging the proceedings of recall to the petitioner and therefore, in the facts and circumstances and law discussed above, the petition is hereby allowed. The process initiated for proposal for recall against the petitioner is hereby set aside and resultantly, all consequential proceedings including the issuance of notification dated 7.7.2017 pales into insignificance and are hereby set aside. It is held that the State Government and the Chairman Election Commission shall not proceed with the recommendations made by the Collector under section 47(2) of the Act of 1961. However, the said findings does not give immunity to the petitioner for the next 3 years till her tenure completes. The Councillors may initiate their proposal as and when situation arises in accordance with law, in future if any proposal comes in this regard. 38. Petition stands allowed as per above terms and disposed of. 39. No costs.