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2018 DIGILAW 145 (MP)

Vinayak Parihar v. State of M. P.

2018-02-05

HEMANT GUPTA, VIJAY KUMAR SHUKLA

body2018
JUDGMENT : HEMANT GUPTA, CJ. 1. Challenge in the present writ petition is to the nominations of respondent Nos.6 to 11 as Alderman of Municipal Corporation, Bhopal in exercise of power under section 9(1)(c) of the Madhya Pradesh Municipal Corporation Act, 1956 (for short the 'Act'); and, that of respondent Nos. 12 to 23 as Alderman of Municipality Gadarwara, Kareli and Narsinghpur in exercise of powers conferred under section 19(1)(c) of the Madhya Pradesh Municipalities Act, 1961 (for short the 'MC Act'). 2. Such nominations are challenged on the ground that a person can be nominated as an Alderman who has to have special knowledge or experience in municipal administration. Since none of the nominated candidates have any special knowledge or experience in municipal administration, therefore, their nomination is not legal in terms of the statutory provisions. It is contended that some of the nominated members are the members of the party in power whereas the others are Housewives, Grocery Shop owners, School Owner, Welder, Agriculturist etc. Learned counsel for the petitioner relies upon a Division Bench judgment of this Court Sachchidanand Sheketkar Vs. State of M P and others, (2014) 3 MPLJ 242 , wherein the appointment of Alderman in terms of section 9(1)(c) of the Act was set aside. 3. On the other hand, the argument of learned counsel for the respondents is that public interest litigation in respect of nominated councilors is not maintainable in view of Section 441-B of the Act and Sections 20 of the MC Act. Reliance is placed upon a Division Bench judgment of this Court Prem Narayan Yadav Vs. State of MP and others, (2014) 3 MPLJ 47 . 4. It is also contended by learned counsel for the respondents that whether a candidate has special knowledge or experience in municipal administration is subjective satisfaction of the State Government, which satisfaction is not open to judicial review unless it is said to be malafide. It is also contended that the expression 'special knowledge or experience' is not defined in the Act or in the MC Act, therefore, the meaning as is understood by public at large and/or the dictionary meaning has to be applied. It is also contended that the expression 'special knowledge or experience' is not defined in the Act or in the MC Act, therefore, the meaning as is understood by public at large and/or the dictionary meaning has to be applied. The municipality is the lowest tier in the local government; therefore, requirement of nomination of Alderman is to give representation to various sections of the society so that they can be voice of the residents of the municipal area in the municipality. The councillor is not a post which requires any expertise, technical or otherwise; therefore, the nomination of a councillor is primarily subjective satisfaction of the State Government, provided the candidate satisfies the criteria fixed under the statute. 5. The relevant provisions of 9(1)(c) of the Act and that of 19(1)(c) of the MC Act, read as follows:- "9. Composition of Municipal Corporation (1) A Municipal Corporation shall consist of- xxx xxx xxx (c) not more than six persons having special knowledge or experience in the Municipal administration, nominated by the State Government. Provided that only a person residing within the Municipal area and being otherwise not ineligible for election as a Councillor, may be nominated. " "19. Composition of Municipal Council or Nagar Parishad - (1) A Municipal Council or a Nagar Parishad, shall consist of - xxx xxx xxx (c) Not more than four persons in the case of Municipal Councils and not more than two persons in the case of Nagar Parishads having special knowledge or experience in Municipal Administration nominated by the State Government. Provided that only a person residing within the Municipal area and being otherwise not ineligible for election as a Councillor may be nominated. " 6. The nomination of municipal councillors having 'special knowledge or experience' in municipal administration is a clause introduced in the Act or in the MC Act on the basis of Article 243-R of the Constitution/in Part IX-A thereof in the year 1993. The statute does not provide for what is meant by 'special knowledge or experience' in municipal administration. A Division Bench of the Andhra Pradesh High Court in a judgment V. Venkateswar Rao Vs. The Government of Andhra Pradesh and others, (2013) 1 ALT 276 , has considered the nomination to Legislative Council in terms of Article 171(3) of the Constitution. It was held as under:- "21. A Division Bench of the Andhra Pradesh High Court in a judgment V. Venkateswar Rao Vs. The Government of Andhra Pradesh and others, (2013) 1 ALT 276 , has considered the nomination to Legislative Council in terms of Article 171(3) of the Constitution. It was held as under:- "21. The main contention of the learned counsel for the petitioner is that the persons nominated have no special knowledge or practical experience in the fields mentioned under Clause (5) of Article 171 viz., Literature, Science, Art, Co-operative Movement and Social Service, therefore, their nomination is not in accordance with the Clause (5) and the Governor ought to have acted independent of the advice tendered by the Council of Ministers. We are not inclined to accept the said submission. As already stated, unlike election of members to the Legislative Council under sub-clauses (a) to (c) of Clause (3) of Article 171 no procedure is prescribed for nomination of the members by the Governor. Merely because the note file circulated to the Chief Minister and the Council of Ministers did not disclose or indicate against each name of the person the field or category in which they are nominated, it cannot be said that the Council of Ministers have not appreciated the special knowledge or practical experience of the persons recommended for nomination in the fields enumerated under Clause (5). 22. The 1st respondent in the counter-affidavit has stated that persons nominated have special knowledge or practical experience in the fields enumerated in Clause (5). The learned counsel for the petitioner stated that there is no mention in the file to show that the persons nominated have such special knowledge or practical experience and a fair and reasonable procedure consistent with the object should be adopted. In the absence of any procedure or scheme provided under Article 171 of the Constitution or any right is reserved for the Parliament to prescribe a procedure for nomination of members to the Legislative Council by the Governor, it is not for the Court to suggest or evolve a procedure nor a direction can be issued to evolve a procedure. Therefore, the constitutional scheme of nomination by the Governor as recommended by the Council of Ministers has to be honoured by the Governor under Article 171(3)(e) of the Constitution. Therefore, the constitutional scheme of nomination by the Governor as recommended by the Council of Ministers has to be honoured by the Governor under Article 171(3)(e) of the Constitution. The opinion or conclusions arrived at by the Council of Ministers as to the special knowledge or practical experience possessed by them in the fields enumerated under Clause (5) of Article 171 cannot be gone into by this Court in exercise of the power of judicial review. Any such review would be contrary to the constitutional scheme of governance by cabinet system and would amount to intrusion into the powers of the executive. Therefore, the decision of the Governor is not justiciable. " 7. In another judgment, Ram Gopal Singh Sisodia Vs. Union of India and others, (2013) 196 DLT 675 , a Division Bench of Delhi High Court was examining the nomination of Shri Sachin Tendulkar as Member of Rajya Sabha. It was held that general rule of interpretation is that wherever the language of a statute is clear; the intention of the legislature is to be gathered from the language used. The relevant extract reads as under:- "7. The process of construction combines both the literal and purposive approaches. However, necessity of interpretation arises only where the language of a statutory provision is ambiguous, not clear or where two views are possible or where the provision gives a different meaning defeating the object of the statute. 8. But, no act conveys expressly the fullness of its intended legal effect. Intend of a small proportion of this can be conveyed by the express words of the Act. For the rest, Legislature assumes that interpretations will be drawn for necessary inferences by the interpretators. The interpretation is permissible in such an event. The function of the court is to interpret the law and legislate in accordance. The interpretative process is a highly creative function as the law is not static and should be developed. This interpretation in such an event lies on the judges. Undoubtedly, the limits of judges are narrower as they have to legislate and fill the gaps in law." 8. In another judgment Ramesh Mehta Vs. Sanwal Chand Singhvi and others, (2004) 5 SCC 409, it was held that the candidate is nominated so that he can render his advice properly to the Members of the Committee, which would enable it to run municipal affairs efficiently. In another judgment Ramesh Mehta Vs. Sanwal Chand Singhvi and others, (2004) 5 SCC 409, it was held that the candidate is nominated so that he can render his advice properly to the Members of the Committee, which would enable it to run municipal affairs efficiently. The relevant extract read as under:- "25. It is accepted that the Rules have not been altered despite the fact that amendments have been carried out in the Municipalities Act in the year 1994. All members who were not elected members under the un amended provisions were treated as elected members. Their rights were at par with them. The very fact that the Constitution made a difference between an elected member and nominated member in the matter of election and removal of a Chairman is suggestive of the fact that now a new interpretation is called for. Nominated members are persons with special knowledge in the subject. They are nominated so that they may render their advice properly to the members of the Board which would enable it to run the municipal affairs efficiently. They remain as member of the Board irrespective of the fact that as to who is the person occupying the post or his political affinity. He is not concerned with election. He does not take part in it. A fortiori he has also not been assigned any role to play as regards removal of the Chairman or Vice-Chairman." 9. In another judgment Har Sharan Varma Vs. Chandra Bhan Gupta and others, (1962) AIR Allahabad 301, nomination of a person to the legislative council of Uttar Pradesh was challenged on the ground that such nomination is on political reasons. In a writ of quo warranto, the Allahabad High Court held as under:- "23. The next question is whether this Court can interfere. The petitioner contended that it can and should. But I am of the opinion that this Court cannot interfere in this case. The nomination of the first respondent has not been shown to be illegal. If, for example, the Governor had nominated a person who was not a citizen of India, this Court would have issued a writ of quo warranto on the ground that that person was not qualified to be a member of the legislature. But in the present case the petitioner has not shown that Mr. If, for example, the Governor had nominated a person who was not a citizen of India, this Court would have issued a writ of quo warranto on the ground that that person was not qualified to be a member of the legislature. But in the present case the petitioner has not shown that Mr. Chandra Bhan Gupta was disqualified or that the Governor had no power to nominate him. He merely has made out a prima facie case that the power of nomination was made for a political purpose and therefore improper. This is not enough, in my opinion, to empower the Court to interfere and issue notice to the first respondent." 10. Hon'ble Supreme Court in a judgment G. Narayanaswami Vs. G. Pannerselvam and others, (1972) 3 SCC 717 , was considering the candidature of a candidate from Graduates' Constituency to the Legislative Council of Tamil Nadu. The argument raised was that a candidate has to be a Graduate so as to be eligible to represent the Graduates' Constituency. The Supreme Court held that graduation is a condition for an electorate, but is not a condition for the candidate. The relevant extract reads as under:- "19. Cases in which defects in statutory provisions may or may not be supplied by Courts have been indicated in well known works such as Sutherland's 'Statutory Construction' (3rd Edn. (Vol. 2) (Paragraph 4924 at p.455-58) and in Crawford's 'Construction of Statutes' (1940 Edn.). Only one passage from the last mentioned work need be cited here (p.269): "Where the statutes meaning is clear and explicit, words cannot be interpolated. In the first place, in such a case, they are not needed. If they should be interpolated, the statute would more than likely fail to express the legislative intent, as the thought intended to be conveyed might be altered by the addition of new words. They should not be interpolated even though the remedy of the statute would thereby be advanced, or a more desirable or just result would occur. Even where the meaning of the statute is clear and sensible, either with or without the omitted word, interpolation is improper, since the primary source of the legislative intent is in the language of the statute". 20. Even where the meaning of the statute is clear and sensible, either with or without the omitted word, interpolation is improper, since the primary source of the legislative intent is in the language of the statute". 20. We think that the language as well as the legislative history of Articles 171 and 173 of the Constitution and Section 6 of the Representation of People Act, 1951, enable us to presume a deliberate omission of the qualification that the representative of the graduates should also be a graduate. In our opinion, no absurdity results if we presume such an intention. We cannot infer, as the learned Judge of the Madras High Court had done, from the mere fact of such an omission and opinions about a supposed scheme "functional representation" underlying Article 171 of our Constitution, that the omission was either unintentional or that it led to absurd results. We think that, by adding a condition to be necessary or implied qualification of a representative of the graduates which the Constitution makers, or, in any event, the Parliament, could have easily imposed, the learned Judge had really invaded the legislative sphere. The defect, if any, in the law could be removed only by law made by Parliament." 11. Thus, whether a candidate has special knowledge or experience in municipal administration it is the decision of the State Government, which falls within the exclusive jurisdiction of the State Government. Mere fact that such decision is not to the liking of another political group, does not mean that the satisfaction recorded by the State Government that a candidate has a special knowledge and experience in the affairs of municipal administration, can be permitted to be disputed in a writ petition. 12. The reliance of the petitioner on the judgment of this Court in Sachchidanand Sheketkar's case is not tenable. That was a case where the State Government in its reply-affidavit admitted that it has not ascertained the factum of special knowledge or experience possessed by the nominated councillors. The said judgment has been noticed in a later Division Bench judgment Prem Narayan Yadav's case, wherein it has been held as under. "5. Our attention was invited to the decision of the learned Single Judge of this Court in the case of Syed Habib Ahmed Vs. State of M P, (2000) 2 MPHT 166 . The said judgment has been noticed in a later Division Bench judgment Prem Narayan Yadav's case, wherein it has been held as under. "5. Our attention was invited to the decision of the learned Single Judge of this Court in the case of Syed Habib Ahmed Vs. State of M P, (2000) 2 MPHT 166 . No doubt, in that case, the Court considered the question of locus of the petitioner but has not ruled on the question that arise for our consideration and, more particularly, in the context of amendment of 2003 facilitating challenge to the nomination made under section 9(1)(c) of the Act by resorting to an election petition by the Councillors and no-one-else. Even the unreported decision of the Division Bench in the case of Sachchidanand Sheketkar Vs. State of M P, (2014) 3 MPLJ 242 in W.P. No. 8815/2011, decided on 15.1.2014 will be of no avail to the petitioner as the point in issue has not been considered in the said decision." 13. Still further, in exercise of powers of judicial review, this Court examines the decision making process, but not the decision itself. Reference may be made to the judgment in the case of Tata Cellular vs. Union of India, (1994) 6 SCC 651 , wherein it is interalia held that the power of judicial review is in respect of decision making process, as under:- "74. Judicial review is concerned with reviewing not the merits of the decision in support of which the application for judicial review is made, but the decision-making process itself. 75. In Chief Constable of the North Wales Police vs. Evans, (1982) 3 AllER 141, 154] Lord Brightman said: "Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made. * * * Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power." In the same case Lord Hailsham commented on the purpose of the remedy by way of judicial review under RSC, Ord. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power." In the same case Lord Hailsham commented on the purpose of the remedy by way of judicial review under RSC, Ord. 53 in the following terms: "This remedy, vastly increased in extent, and rendered, over a long period in recent years, of infinitely more convenient access than that provided by the old prerogative writs and actions for a declaration, is intended to protect the individual against the abuse of power by a wide range of authorities, judicial, quasi-judicial, and, as would originally have been thought when I first practised at the Bar, administrative. It is not intended to take away from those authorities the powers and discretions properly vested in them by law and to substitute the courts as the bodies making the decisions. It is intended to see that the relevant authorities use their powers in a proper manner (p. 1160)." In R. vs. Panel on Take-overs and Mergers, ex p Datafin plc, (1987) 1 AllER 564 , Sir John Donaldson, M.R. commented: "An application for judicial review is not an appeal." In Lonrho plc vs. Secretary of State for Trade and Industry, (1989) 2 AllER 609, Lord Keith said: "Judicial review is a protection and not a weapon." It is thus different from an appeal. When hearing an appeal the Court is concerned with the merits of the decision under appeal. In Amin vs. Entry Clearance Officer, (1983) 2 AllER 864, Lord Fraser observed that: "Judicial review is concerned not with the merits of a decision but with the manner in which the decision was made. Judicial review is entirely different from an ordinary appeal. It is made effective by the court quashing the administrative decision without substituting its own decision, and is to be contrasted with an appeal where the appellate tribunal substitutes its own decision on the merits for that of the administrative officer." 76. In R. vs. Panel on Take-overs and Mergers, ex p in Guinness plc, (1990) 1 QB 146 , Lord Donaldson, M.R. referred to the judicial review jurisdiction as being supervisory or 'longstop' jurisdiction. In R. vs. Panel on Take-overs and Mergers, ex p in Guinness plc, (1990) 1 QB 146 , Lord Donaldson, M.R. referred to the judicial review jurisdiction as being supervisory or 'longstop' jurisdiction. Unless that restriction on the power of the court is observed, the court will, under the guise of preventing the abuse of power, be itself guilty of usurping power." 14. In a case Jayrajbhai Jayantibhai Patel Vs. Anilbhai Jayantibhai Patel and others, (2006) 8 SCC 200 , the Hon'ble Supreme Court considered the justification of exercise of powers of judicial review. It was held that the power of judicial review may not be exercised unless the administrative decision is illogical or suffers from procedural impropriety or it shocks the conscience of the court in the sense that it is in defiance of logic or moral standards but no standardised formula, universally applicable to all cases, can be evolved. Each case has to be considered on its own facts, depending upon the authority that exercises the power, the source, the nature or scope of power and the indelible effects it generates in the operation of law or affects the individual or society. The relevant extracts read as under:- "11. Thus, the first question requiring consideration is as to whether on the facts of the instant case, the High Court was justified in exercising its power of judicial review and setting aside the election of the appellant. 12. Article 226 of the Constitution is designed to ensure that each and every authority in the State, including the State, acts bona fide and within the limits of its power. However, the scope of judicial review in administrative matters has always been a subject-matter of debate despite a plethora of case-law on the issue. Time and again attempts have been made by the courts to devise or craft some norms, which may be employed to assess whether an administrative action is justiciable or not. But no uniform rule has been or can be evolved to test the validity of an administrative action or decision because the extent and scope of judicial scrutiny depends upon a host of factors, like the nature of the subject-matter, the nature of the right affected, the character of the legal and constitutional provisions applicable, etc. But no uniform rule has been or can be evolved to test the validity of an administrative action or decision because the extent and scope of judicial scrutiny depends upon a host of factors, like the nature of the subject-matter, the nature of the right affected, the character of the legal and constitutional provisions applicable, etc. While appreciating the inherent limitations in exercise of the power of judicial review, the judicial quest has been to find and maintain a right and delicate balance between the administrative discretion and the need to remedy alleged unfairness in the exercise of such discretion. xxx xxx xxx 18. Having regard to it all, it is manifest that the power of judicial review may not be exercised unless the administrative decision is illogical or suffers from procedural impropriety or it shocks the conscience of the court in the sense that it is in defiance of logic or moral standards but no standardised formula, universally applicable to all cases, can be evolved. Each case has to be considered on its own facts, depending upon the authority that exercises the power, the source, the nature or scope of power and the indelible effects it generates in the operation of law or affects the individual or society. Though judicial restraint, albeit self-recognised, is the order of the day, yet an administrative decision or action which is based on wholly irrelevant considerations or material; or excludes from consideration the relevant material; or it is so absurd that no reasonable person could have arrived at it on the given material, may be struck down. In other words, when a court is satisfied that there is an abuse or misuse of power, and its jurisdiction is invoked, it is incumbent on the court to intervene. It is nevertheless, trite that the scope of judicial review is limited to the deficiency in the decision-making process and not the decision. 19. The following passage from Professor Bernard Schwartz's book Administrative Law, (3rd Edn.) aptly echoes our thoughts on the scope of judicial review: "Reviewing courts, the cases are now insisting, may not simply renounce their responsibility by mumbling an indiscriminate litany of deference to expertise. 19. The following passage from Professor Bernard Schwartz's book Administrative Law, (3rd Edn.) aptly echoes our thoughts on the scope of judicial review: "Reviewing courts, the cases are now insisting, may not simply renounce their responsibility by mumbling an indiscriminate litany of deference to expertise. Due deference to the agency does not mean abdication of the duty of judicial review and rubber-stamping of agency action: [W]e must accord the agency considerable, but not too much deference; it is entitled to exercise its discretion, but only so far and no further." Quoting Judge Leventhal from Greater Boston Television Corpn. vs. FCC he further says:" the reviewing court must intervene if it 'becomes aware that the agency has not really taken a "hard look" at the salient problems, and has not genuinely engaged in reasoned decision-making. ' " 15. Reference may also be made to the following judgments of the Supreme Court, in respect of matters relating to judicial review. Aravali Golf Club vs. Chander Hass, (2008) 1 SCC 683 ; and, Basavaiah (Dr.) vs. Dr. H. L. Ramesh, (2010) 8 SCC 372 . 16. In view of the aforesaid judgments, we find that there is no procedural infirmity in nominating the councillors. It is not the allegation that such nominated councillors do not satisfy the eligibility criteria as mentioned in section 9(1)(c) of the Act or 19(1)(c) of the MC Act. 17. Though the respondents have raised an objection that public interest litigation is not maintainable in view of Section 441-B of the Act or Section 20 of the MC Act, but we find that the writ petition is pending before this Court for more than a year and, therefore, to relegate the petitioners to resort to alternative remedy at this stage may not be a proper discretion. 18. Consequently, we hold that though the election petition is maintainable and such dispute regarding nomination of a councillor has to be raised in terms of the provisions of the statute, but since the matter was pending before this Court for more than a year, we have proceeded ahead to decide the matter not only on the preliminary objection but on merits as well. 19. In view of the discussion above, we do not find any merit in the present petition. The same is dismissed.