Gaya Prasad Modi vs State of M.P. and Others

Rajendra Menon, J.—The petitioner President of Nagar Panchayat, Bhitarwar, District Gwalior, has called in question the proceedings initiated for his recall u/s 47 of the M.P. Municipalities Act, 1961. According to the petitioner he was elected as President of Nagar Panchayat and notification in this regard was issued on 23rd January, 2002. On 7-1-2002 vide Annexure P-4 certain councillors moved an application to the Collector under the provision of Section 47 of the M.P. Municipalities Act, 1961 asking for recall of the petitioner. It is the case of the petitioner that Collector without following the procedure contemplated u/s 47 and in cross violation there of made a proposal to the State Government for initiating action for recall, the State Government forwarded the same to the State Election Commission and the Commission has notified election for recall of the petitioner which is to be held on 6th May, 2002. The prayer made in the petition is that entire action be quashed, as the same is in violation of the statutory provisions, rules and therefore cannot be sustained. The respondents have refuted the contention made by the petitioner. The respondents have submitted that action is being taken in accordance with Section 47 and the rules made thereunder.

The respondents have raised a preliminary objection with regard to maintainability of the present petition. Inviting my attention to the provisions of Article 243ZG of the Constitution of India, it is putforth by the learned Counsel for the respondents that there is a total constitutional bar to interfere in election matter pertaining to municipalities and therefore the petition is not maintainable. My attention has also been invited to the provision of M.P. Nagar Panchayat Nirvachan Niyam, 1994 (hereinafter referred to as ''Election Rules''), Rule 2 (d) defines an election and reads as under :--

" "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."

Accordingly, it is averred that election in relation to recall of a President of a Municipality or Nagar Panchayat is also an "Election". Section 20 of the Municipalities Act provides for filing of an election petition and it contemplates that no election held under the provision of Act shall be called in question except by a petition presented under the said provision. Section 22 of the Act further provides the grounds on which election or nomination can be declared as void. Sub-section 1 (d) (iii) provides that non-compliance of the provision of Act, rules or orders made thereunder arc grounds on which election can be declared void. On the basis of the aforesaid it is submitted by the learned Counsel for respondents that as an election petition is maintainable with regard to violation of the provisions of Act and rules and in view of the constitutional bar created by Article 243ZG and the statutory bar provided for u/s 20 of the Act present petition is not maintainable. Reliance is placed on judgment in the case of Nanhoo Mal and Others Vs. Hira Mal and Others, . In the aforesaid case the Supreme Court has held that election to the office of President of a Municipal Council has to be challenged in accordance with the provision prescribed in the statute and writ petition under Article 226 is not permitted. Similar provisions in the Constitution, akin to Article 243ZG has been considered in various judgments of the Supreme Court wherein the Supreme Court has clearly held that the constitutional bar created by these provisions debars entertaining a petition under Article 226 of the Constitution. Reference in this regard can be made as under:--

Durga Shankar Mehta Vs. Thakur Raghuraj Singh and Others,

Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others,

Krishna Ballabh Prasad Singh Vs. Sub-divisional Officer Hilsa-cum-returning Officer and Others,

In all the aforesaid cases which relate to election, the Supreme Court has held that the constitutional bar created prohibit this Court from exercising jurisdiction under Article 226 of the Constitution for entertaining election disputes.

Shri Maheshwari, learned Counsel for the petitioner however submitted that as the initiation of the proceedings u/s 47 is itself bad for non-compliance of the statutory provisions and the rules, the petition is maintainable.

Having heard learned Counsel for the parties, I am of the considered view that in the facts and circumstances of the present case filing of a petition directly challenging the proposed action to recall the petitioner is not maintainable.

Article 243ZG of the Constitution deals with the special provision with regard to municipalities. The said article contemplates that no election in connection with the municipality shall be called in question in any Court except by way of election petition. In the Municipality Act, 1961 specific provisions for filing election petition are provided in Section 20 and the ground on which election can be declared as void are also provided for in Section 22. The grounds raised by the learned Counsel impugning the action comes within the purview of Section 22 (1) (d) (iii).

In view of the above, i.e., the specific constitutional and statutory bar created by the legislature and the fact that the grounds raised in the petition can be impugned in an election petition, I am not inclined to accept the submission made by learned Counsel for petitioner, there is much force in the preliminary objection raised by the respondent. In view of the fact that the petition itself is not maintainable I am not inclined to interfere in the matter, accordingly, the petition is dismissed, petitioner has to resort to the remedy provided for filing election petition.

With the aforesaid observation the petition is disposed of.