Brijmohan Mali and Others vs Yusuf Khan and another

Petitioner is challenging the order dated 20.1.2017 passed by the State Government (Annexure P-5 to the petition). The said order was passed under Section 41A of the M.P. Municipalities Act, 1961 removing the petitioner from the elected office of President, Municipal Council Mangawan District Rewa and debarring her to contest the next election.

This writ petition was admitted for final hearing by order dated 23.3.2017 with direction to respondents to file reply within two week and the case fixed for final hearing on 20.4.2017. No reply of the State was filed within the stipulated time and on 1.5.2017 State Counsel again sought time. Considering the prayer, further two weeks? was granted to file reply. Despite the order dated 23.3.2017 and the Order dated 1.5.2017, no reply was filed by the State because matter relates to removal of elected President, Municipal Council.

The relevant facts which are not disputed lie in a narrow compass. Petitioner belongs to the Schedule Caste. She got elected with the support of the Indian National Congress and was working as the President, Municipal Council Mangawan w.e.f. 19.1.2015. According to her on a false complaint, FIR was registered by SPE Lokayukt Rewa against her and her husband that they demanded illegal gratification for passing pending bills of a contractor. Copy of the FIR dated 18.9.2015 is Annexure P-1. Based on the said FIR, a Show Cause Notice dated 21.3.2016 was issued to her. In reply she denied the allegations and submitted that FIR is a doctored document to get rid of her from the office of President. She submitted that action proposed in the show cause notice are contrary to the cardinal rule of criminal jurisprudence that unless she is found guilty of alleged misconduct, she could not to be removed from the elected office to which she was democratically elected. It was also contended that the proposed action was tainted with legal malice and has serious adverse civil recuperations. Ultimately, according to her, without any application of mind to various contentions raised by her in the reply to show cause notice, the order impugned was issued under Section 41 A of the Act. Hence this petition.

State Government and respondent No. 2 both opposed the writ petition and justified the order impugned contending since a FIR has been registered against the petitioner for offence punishable under provisions of Prevention of Corruption Act, 1988 her continuance in public office was undesirable therefore she has been removed from the office of President, Municipal Council. According to them there is no merit and substance in the petition and as such it should be dismissed with costs.

After having heard the rival submission and keeping in mind the material placed on record and various judgments cited at the Bar, we are of the considered opinion that the petition deserves to be allowed.

To appreciate the rival contention, it would be appropriate to keep in mind certain provisions of the Municipalities Act which are relevant for our purpose.After insertion of Part IX A in the Constitution of India, Municipalities Act was amended. Section 5 r/w Section 36 of Act provides for the constitution of Municipal Council for a smaller urban area and Nagar Parishad for a transitional area for a period of five years from the date appointed for its first meeting. Section 19 provides for composition of Municipal Council or Nagar Parishad. It further provides for direct election of President by every eligible registered voter of the Municipal area. Section 29A deals with reservation of seats and Section 29B provides for reservation of office of President of the Council. Section 35 provides for disqualifications of candidate for election. Amongst other things, Section 35(h) makes a candidate ineligible when he has been convicted of an offences mentioned herein. Section 35(hh) is of importance for our purpose, hence it is reproduced as under:-

"35(hh) has been convicted by a Court in India for any offence not falling under clause (h) and sentenced to imprisonment for a period of not less than two years unless a further period of six years has elapsed since his release after undergoing the sentence;"

Section 41A deals with removal of President or Vice Presidentor Chairman of a committee, which reads as under:-

"41-A. Removal of President or Vice- President or Chairman of a Committee.-

(1) The State Government may, at any time, remove a President or 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 there under or if it is found that he does not belong to the reserved category for which the seat was reserved.

(2) As a result of the order of removal of Vice-President or Chairman of any Committee, as the case may be, under sub- section (1) it shall be deemed that such Vice-President or a Chairman of any Committee, as the case may be, has been removed from the office of Councillor also. At the time of passing order under sub-section (1), the State Government may also pass such order that the President or Vice-President or Chairman of any Committee, as the case may be, shall disqualified to hold the office of President or Vice-President or Chairman, as the case may be, shall be diaqualified to hold the office of President or Vice- President or Chairman, as the case may be for the next term:

Provided that no such order under this Section shall be passed unless a reasonable opportunity of being heard is given."

Section 41-A is a draconian piece of legislation. It gives unfettered discretion to the State Government without any provision for appeal, to stultify the popular will by removing a duly elected President if, in the opinion of State Government, his continuance in office as such is undesirable in public interest or in the interest of council and may also result in his disqualification hold office for the next term. The action of removal casts a serious stigma on the personal and public life of the concered office bearer. In a democracy governed by rule of law, once elected to an office in a democratic institution, the incumbent is entitled to hold the office for the term for which he has been elected unless his election is set aside by a prescribed procedure known to law. That a returned candidate must hold and enjoy the office and discharge the duties related therewith during the term specified by the relevant enactment is a valuable statutory right not only of the returned candidate but also of the constituency or the electoral college which he represents.It now well established that democratic set-up of the country is basic feature of Contitution of India. Removal from such an office by executive fiat is a serious matter. It curtails the statutory term of the holder of the office. A stigma is cast on the holder of the office in view of certain allegations rendering him, as in present case, unworthy of holding the office which she held. Therefore, in a case of availability of a ground squarely falling within Section 41A of the Act must be clearly made out. Keeping in view of the nature of the power and the consequences that flows on its exercise, such power can be invoked by the State Government only for very strong and weighty reason and not on mere allegartions that she and her demanded illegal gratification for passing pending bill of the contractor.That is nothing but a smokescreen to coverup the exercise of drastic order. The allegations are yet to tried on the touch stone of evidence, and it is only after the trial Court finds her guilty, then it could legitimately said that her continuounce in elected office is undesirable. Not before that. If the contentions of respondents are accepted, it would lead to chaotic situation and may ultimately render the Constitutional mandate of self governance and decentralization of power.

Amendment in the Constitution by adding Parts IX and IX-A confers upon the local self-government a complete autonomy on the basic democratic unit unshackled from official control. Thus, exercise of any power having effect of destroying the Constitutional institution besides being outrageous is dangerous to the democratic set-up of this country. Therefore, an elected official cannot be permitted to be bundled out of elected office unceremoniously without following the procedure prescribed by law, by the State by adopting a casual approach and resorting to manipulations to achieve ulterior purpose. The Court being the custodian of law cannot tolerate any attempt to thwart the institution.

The democratic set-up of the country has always been recognised as a basic feature of the Constitution, like other features e.g. supremacy of the Constitution, rule of law, principle of separation of powers, power of judicial review under Articles 32, 226 and 227 of the Constitution. It is impermissible to destroy any of the basic features of the Constitution even by any form of amendment, and therefore, it is beyond imagination that it can be eroded by the executive on its whims without any reason. The Constitution accords full faith and credit to the act done by the executive in exercise of its statutory powers, but they have a primary responsibility to serve the nation and enlighten the citizens to further strengthen a democratic State.

Public administration is responsible for the effective implication of the rule of law and constitutional commands which effectuate fairly the objective standard set for adjudicating good administrative decisions. However, wherever the executive fails, the Courts come forward to strike down an order passed by them passionately and to remove arbitrariness and unreasonableness, for the reason that the State by its illegal action becomes liable for forfeiting the full faith and credit trusted with it.

In democracy all citizens have equal political rights. Democracy means actual, active and effective exercise of power by the people in this regard. It means political participation of the people in running the administration of the Government. It conveys the state of affairs in which each citizen is assured of the right of equal participation in the polity. The trite saying that ?democracy is for the people, of the people and by the people? has to be remembered forever. In a democratic republic, it is the will of the people that is paramount and becomes the basis of the authority of the Government. The will is expressed in periodic elections based on universal adult suffrage held by means of secret ballot. It is through the ballot that the voter expresses his choice or preference for a candidate. ?Voting is formal expression of will or opinion by the person entitled to exercise the right on the subject or issue. The citizens of the country are enabled to take part in the government through their chosen representatives. In a parliamentary democracy like ours, the Government of the day is responsible to the people through their elected representatives. The elected representative acts or is supposed to act as a live link between the people and the Government. The people?s representatives fill the role of lawmakers and custodians of the Government. People look to them for ventilation and redressal of their grievances.

In State of Punjab v. Baldev Singh (1999) 6 SCC 172 Supreme Court considered the issue of removal of an elected office-bearer and held that where the statutory provision has very serious repercussions, it implicitly makes it imperative and obligatory on the part of the authority to have strict adherence to the statutory provisions. All the safeguards and protections provided under the statute have to be kept in mind while exercising such a power.It must be borne in mind that severer the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed.

The Constitution Bench of Supreme Court in G. Sadanandan v. State of Kerala AIR 1996 SC 1925 held that if all the safeguards provided under the statute are not observed, an order having serious consequences is passed without proper application of mind,

having a casual approach to the matter, the same can be characterised as having been passed mala fide, and thus, is liable to be quashed.

whether the action taken against the petitioner is tainted with malice in law? That is the next question for our consideration. At this juncture we may recall second inaugural speech of U.S. President Abraham Lincon, when he spoke " With malice toward none, with charity for all...."It would also relevant to remember that " Be you ever so high, the law is always above you!". This aspect of matter in connection with unceremonious removal of an elected office bearer was under consideration of the Supreme Court in the case of Ravi Yashwant Bhoir vs. District Collector Raigad and others (2012) 4 SCC 407.His Lordship Dr. B.S.Chauhan,speaking for the Court observed in 47 and 48 as under:-

"47 This Court has consistently held that the State is under an obligation to act fairly without ill will or malice in fact or in law. Where malice is attributed to the State, it can never be a case of personal ill will or spite on the part of the State. "Legal malice" or "malice in law" means something done without lawful excuse. It is a deliberate act in disregard to the rights of others. It is an act which is taken with an oblique or indirect object. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite.

48 Mala fide exercise of power does not imply any moral turpitude. It means exercise of statutory power for "purposes foreign to those for which it is in law intended". It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, where intent is manifested by its injurious acts. Passing an order for unauthorised purpose constitutes malice in law."

In view of the foregoing discussion, we find that the order impugned is tainted with malice in law and therefore is unsustainable and as such deserves to be quashed. Accordingly we quash the order impugned and allow the writ petition with costs of Rs. 10,000/- payable by the respondents to the petitioner. She should be reinstated in the office forthwith, which has been kept vacant by virtue of interim order.

Ordered accordingly.