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Madhya Pradesh High Court · body

2020 DIGILAW 515 (MP)

Santosh Rathore v. State of M. P.

2020-05-08

SANJAY DWIVEDI

body2020
ORDER 1. With the consent of learned counsel for the parties, since pleadings are complete, the matter is heard finally. 2. Heard on the question of admission. 3. This petition is under Article 226 of the Constitution of India. By the instant petition, the petitioner is claiming that he was working as Chairman/President of Municipal Council, Khandwa, by virtue of his election and certificate issued by the Returning Officer on 4.12.2014. The tenure of the President in the Municipal Council is over and the respondents/State is inclined to appoint an Administrator who is a Government Officer. 4. Learned counsel for the petitioner submits that an issue of this nature has been raised before the High Court and the interim protection has been granted in the said case restraining the State to appoint any Administrator. 5. Per contra, learned Government Advocate for the respondents/State submits that this issue has already been dealt with by this Court in W.P. No. 13833/2019 [Dhiru Singh Parihar v. The State of Madhya Pradesh and others], which was decided by order dated 15.10.2019. As per learned Government Advocate, after completion of tenure, the petitioner cannot be allowed to continue to hold the post of President of Municipal Council and the Government has power to appoint an Administrator till the new election is held. 6. Considering the rival contentions of learned counsel for the parties and also taking note of the order passed in W.P. No. 13833/2019, this Court is of the opinion that this petition is without any substance and the claim raised by the petitioner is misconceived. The apprehension as has been raised by the petitioner has no force of law and he cannot be allowed to continue to hold the post of President till the new election is held, restraining the Government from appointing any Government Officer as an Administrator. The law laiddown by this Court in W.P. No. 13833/2019 is as follows: "3. The challenge in basically on the point that the State Government has no authority to appoint any Administrative Committee that too by appointing a political person as the member of the Committee. 4. The law laiddown by this Court in W.P. No. 13833/2019 is as follows: "3. The challenge in basically on the point that the State Government has no authority to appoint any Administrative Committee that too by appointing a political person as the member of the Committee. 4. The learned counsel for the petitioner submits that the Committee can be constituted only in the event of dissolution of the Council as per provision of section 328 of the Act, 1961, but in case the term of the Council is over and there is no provision under the Act,1961 under which, an Administrator and Administrative Committee can be appointed. He further submits that the Administrator was appointed two years back and has been performing his duties properly and managing the affairs of the Council, therefore, there is no reason for appointment of any Administrative Committee by way of notification. He further submits that the political persons, who have already completed their tenure, if appointed as the member of the Committee, may affect the affairs of ensuing election of the Council. He has relied upon the a decision reported in AIR 1986 MP 63 parties being Hargovind Tamrakar v. State of Madhya Pradesh and others. He further submits that, at present the Administrator appointed to manage the affairs of the Council is a Government Officer and is performing the duties sincerely. 5. The learned counsel for the petitioner further submits that the election of the Council has not been conducted because there was an interim order granted by this Court staying the election in W.P. No. 7833/2017 and the said petition has now been disposed of vide order dated 19.8.2019, therefore, the election is likely to be held very soon. 6. Per contra, Shri Ajay Gupta, learned Additional Advocate General, appearing on behalf of the respondents/State submits that the State Government may exercise such powers under the provision of section 346 of the Act, 1961 taking clue of the provision, under which, the Administrator and Administrative Committee can be appointed as per section 328 of the Act, 1961. He has relied upon the decision of this Court passed by a Coordinate Bench of this Court in W.P. No. 1919/2019 on 31.1.2019 parties being Shoukat Mohd. He has relied upon the decision of this Court passed by a Coordinate Bench of this Court in W.P. No. 1919/2019 on 31.1.2019 parties being Shoukat Mohd. Khan v. State of M.P. and others, wherein while dealing with the similar situation under the Waqf Act, the Court has observed that there is no provision to appoint any Administrator after the expiry of the tenure of Board. He further submits that he has also raised preliminary objection regarding maintainability of the petition contending that the personal rights of the petitioner are not affected, therefore, this petition cannot be entertained. If any grievance is to be raised by the petitioner, then he should have filed a Public Interest Litigation. He further submits that with the apprehension of the petitioner regarding fair election, has no substance for the reason that the election is not conducted by the State Government but it is conducted by a separate body i.e. Election Commission. 7. The learned counsel for respondent No. 3 also submits that the petitioner has not raised any objection in respect of the appointment of Administrator, whereas in the petition, he has raised objection regarding competency of the State for appointment of Administrative Committee. 8. The objection raised by the respondents in respect of maintainability of the petition contending that no personal right of the petitioner is being affected, therefore, he can challenge the constitution of Administrative Committee only under the Public Interest Litigation, however, I am not satisfied with the objection raised by the respondents because the right of the petitioner is directly or indirectly relates with the constitution of Administrative Committee of the Municipal Council, Dhanpuri, because the petitioner has pleaded that he is a resident of the said Municipality. The constitution of Municipality is basically meant for providing basic facilities like supply of water, proper drainage system, keeping area clean, etc. If the constitution of the Committee is not proper and that would affect the working of the Municipality, then in such a situation, the petitioner has every right to challenge the said action of the State, under which, the Administrative Committee of the Municipal Council, Dhanpuri has been constituted, therefore, the objection raised by the respondents has no substance and the same is hereby rejected. 9. 9. The Supreme Court in case of Satyanarayan Sinha v. M/S S. Lal And Company (Pvt.) Ltd. reported in 1973 AIR 2720, in which the apex Court has observed as under: "Article 226 confers a very wide power on the High Court to issue directions and writs of the nature mentioned therein for the enforcement of any of the rights conferred by Part III or for any other purpose. It is, therefore, clear that persons other than those claiming fundamental rights can also approach the Court seeking a relief thereunder" "A personal right need not be in respect of a proprietary interest : it can also relate to an interest of a trustee. That apart, in exceptional cases, as the expression "ordinary" indicates, a person who has been prejudicially affected by an act or omission of an authority can file a writ even though- he has no proprietary or even fiduciary interest in the subject-matter thereof." 10. The learned counsel for the petitioner submits that the constitution of the Administrative Committee is permissible only in the event of dissolution of Council but not otherwise as provided under section 328 (3) of the Act, 1961. The same is quoted hereinbelow: "[(3)] If the Council is dissolve [x x x] as provided in the preceding sub-sections, the following consequences shall ensue: (a) all the Councillors [and President] of the Council shall, as from the date of the order, vacate their offices as Councillors [and President] [(b) all powers and duties of the Council, the President-in-Council Appeal Committee, [Advisory Committees] and President under this Act may, until the Council is reconstituted, be exercised and performed by such person as may be appointed as Administrator by the State Government in this behalf: Provided that - (i) in place of Administrator the State Government may appoint an Administrative Committee consisting of Chairman, VicePresident and such number of members as it may deem fit, but the total number of such members including Chairman and ViceChairman shall not be more than five; (ii) for the purpose of this Act, such Administrative Committee shall exercise and perform all the powers and duties of the Council, Standing Committee, Appeal Committee, [Advisory Committees] and its Chairman and the Vice-Chairman shall exercise and perform such powers and duties as provided under this Act for the President and Vice-President of the Council. (iii) no person shall be appointed as Chairman, Vice-Chairman or member of such Administrative Committee who is not eligible to hold such office in the Council under this Act. (c) all the properties vested in the Council shall, until the Council is reconstituted, vest in the Administrator or the Administrative Committee, as the case may be, appointed under clause (b) for the purpose of this Act: Provided that the exercise of the powers of the Council or Standing Committee regarding the management or disposal of the property shall be subject to the Control of the Collector. (d) the State Government may, at any time remove the Administrator, Chairman, ViceChairman or any member appointed under clause(b) and may appoint any other person eligible to be so appointed in his place." 11. The learned counsel for the petitioner further submits that in the present case, the term of the Council is over and in pursuance to the interim order granted by this Court in a pending petition, the election could not be conducted. The Administrator was appointed in the year 2017 and has been controlling the affairs of the Council, but now, there was no reason for appointing the Administrative Committee vide Notification dated 3.6.2019 (Annexure-P/4) that too of all political persons. He further submits that the constitution of the Administrative Committee would affect the affairs of ensuing election of the Council because all the members of the Administrative Committee are political persons and relating to a particular party. It is also contended by the learned counsel for the petitioner that after dissolution of the Council, the said Committee can be constituted but otherwise not. He placed reliance upon the decision of Hargovind Tamrakar (supra), which provides as under: "7.7. In view of the facts stated, we have no hesitation in holding that the action of the State Government is not only arbitrary but also not justified inasmuch as it gives undue advantage to the ruling party members by giving them back door entry to the municipal council without holding election. In view of the facts stated, we have no hesitation in holding that the action of the State Government is not only arbitrary but also not justified inasmuch as it gives undue advantage to the ruling party members by giving them back door entry to the municipal council without holding election. A Division Bench of this Court in Mukutdhari v. State of M.P., 1978 MPLJ 156 : (AIR 1978 Madh Pra 46) has held that the municipality does not continue as a corporate body on dissolution of council, the corporate body is the council and not the municipality, when the council is dissolved the corporate body comes to an end and the President or Vice-President cannot continue after the dissolution of the body. If administrators were exercising all the powers and duties of the municipal council satisfactorily all these years what was the compelling reason for constituting a committee, consisting of expresident of the municipal council and other ruling party members and thereafter again postponing the election. There is no counter affidavit by the State Government. The allegations of the petitioner that this was done under political pressure as respondent No. 12 a sitting M.L.A. happened to be a member of the ruling party and her husband was the ex-President of the council have not been controverted. Admittedly criminal cases were pending against some of the respondents and the Government could have chosen persons with a clean image even if it were to appoint a committee in place of administrator. The order of the State Government dt. 17.2.1984 is colourable exercise of power and it is liable to be struck down." The petitioner relying upon the observation made by the Division Bench is contending that the Administrator since performing the duties satisfactorily, then there is no occasion for constitution of the Administrative Committee that too of political persons and as such, seeking quashment of the impugned notification. 12. 12. Per contra, the learned Additional Advocate General has opposes the contention raised by the learned counsel for the petitioner and submits that the State Government under section 346 of the Act, 1961 has residuary power to take decision under the circumstance where there is no mechanism available as to after expiry of the term of election if further election is not held, then what would be done in the intermediate period from the expiry of the term of the Council till new body assumes the charge. Accordingly, exercising the power provided under section 346 of the Act, 1961, taking clue that the provision of section 328, of the Act, 1961 the State Government has taken a decision appointing the Administrator and further to constitute the Administrative Committee. He further submits that the petitioner has not raised any objection when the Administrator was appointed, whereas under section 328 of the Act, 1961, there is no provision for appointment of the Administrator even then this petition regarding constitution of Administrative Committee on the ground that under the presence circumstance, no such Committee can be constituted, is also not maintainable. He relies upon the case of Shoukat Mohd. Khan (supra), in which, a similar situation arose where the term of the members of the Board of M.P. Waqf Board, Bhopal was due for completion on 3.12.2018, then Administrator was appointed in suppression of the Board, whereas as per the provision of section 13 (1) of the MP Waqf Board Act, 1995 (in short the 'Act, 1995') an Administrator can only be appointed under the provisions of section 99 (2) (b) of the Act, 1995 and that too when existing body is superseded by the State Government under section 99 (1) of the Act, 1995. The sole contention raised before the Court was that the Administrator can be appointed in supersession of the Board, but not otherwise. Finally, the High Court relying upon the law laid down in the case of Ghufran Azam v. State of MP and others (W.P. No. 14663/2013) taking note of the residuary power of the State Government has held that to overcome the said situation if Administrator is appointed by the State Government, the said action cannot be said to be illegal and without any competence. 13. 13. Here in this case, if we see the provisions of section 346, of the Act, 1961 where powers have been given to the State Government to overcome or remove the difficulties if so arises in a situation existing in the present case, the State Government, can take necessary steps for the purpose of removing the difficulties. section 346 of the Act, 1961 is quoted hereinbelow: "346. Power to remove difficulties.-If any difficulty arises in giving effect to the provisions of this Act, the State Government may, by order, do anything not inconsistent with the provisions on this Act which appears to it to be necessary or expedient for the purpose of removing the difficulty." 14. In view of the above, I am of the opinion that there is no force in the contention raised by the learned counsel for the petitioner. The learned counsel for the respondents has rightly pointed out that in absence of any specific provision, when Administrator was appointed in the year 2017, no objection was raised by the petitioner and now the Administrative Committee is constituted under the same provision in the same circumstances, then such action cannot be assailed by the petitioner accepting the appointment of the Administrator. It is also not correct on the part of the petitioner to say that all the members of the Administrative Committee are political persons. From the impugned notification, it is clear that some of the members of the Administrative Committee are not related with any political party, therefore, the allegation of the petitioner has no logical foundation. 15. So far as the observation made by the Division Bench in case of Hargovind Tamrakar (supra), the same is not applicable in the present case because in the said case the Administrator was appointed in a situation arose due to dissolution of the Council and section 328 of the Act, 1961 provides the mechanism for appointment of the Administrator and Administrative Committee. However, here in this case, the State Government has exercised residuary power as provided under section 346 of the Act, 1961 borrowing the idea provided under section 328 of the Act, 1961, the said decision, therefore, cannot be said to be without any competence and arbitrary. Accordingly, I do not find any substance in the contention raised by the learned counsel for the petitioner." 7. Accordingly, I do not find any substance in the contention raised by the learned counsel for the petitioner." 7. Thus, in view of the aforesaid, this petition being without any substance, is hereby dismissed.