Norata Ram vs The State of Punjab

D.K. Mahajan, J.—This order will dispose of Civil Writs Nos. 711 and 712 of 1963.

The petitioners in both these petitions were the members of the Municipal Committee, Budhlada, district Bhatinda. They were removed by the State Government by two notifications issued in the exercise of its powers u/s 16(1)(e) of the Punjab Municipal Act-hereinafter referred to as the Act. They have further been disqualified from contesting the municipal elections for a period of one year. The facts in both these petitions are identical, excepting that in the case of Naurata Ram the lessee of the municipal shop was his brother Madan Lal and in the case of Sugna Ram, he himself was the lessee of the shop. The petitioners were issued a show-cause notice each, the relevant part of which is as follows :

It has been brought to the notice of the Government that Messrs. Madan Lal-Raj Kumar are running their business in a shop, which has been rented out by the Municipal Committee, Budhlada, to this firm. Your brother, Shri Madan Lal is one of the proprietors of the firm named above. In the meeting of the Committee, held on the 30th May, 1961, question of revision of the rent for the lease of the municipal properties came up for consideration. Therein the question of revision of the rent of this shop also came up for consideration and decisions were arrived at vide Resolution No. 7. You, being interested in the matter your brother being one of the proprietors of the firm, took part in the proceedings of the Committee held on the 30th May, 1961, referred to above, in contravention of Rule 3-A of the General Rules framed u/s 240 of the Punjab Municipal Act, 1911.

This act on your part shows that you flagrantly abused your position as a member of the Committee within the meanings of section 16(1)(e) ibid.

The above notice is quoted from the petition of Naurata Ram and the notice of Sugna Ram is also in the same terms, excepting to the extent of the modification already indicated above. To these notices, the petitioners submitted their reply, which in Naurata Ram''s case is in these terms :

It is correct that the Municipal Committee, Budhlada had rented out a shop to my brother Shri Madan Lal in the year 1956-57, when I was not a member of the said Committee and then the lease aforesaid in respect of the shop in question has been extended from time to time and is still subsisting and that my brother Madan Lal is in no better or worst position than the large number of other lessees of the Committee and has always been dealt with as one of them; strictly on an equal footing in all matters respecting the leases of Municipal properties, consistent with public interest. In the present case the facts of the matter are as follows :

That the Municipal Committee Budhlada in its meeting held on 21st March 1961, vide resolution No. 409 (copy enclosed) decided to constitute a special sub-committee for making recommendations regarding the enshancement of the rates of rent of the municipal land sites and other properties for the next ensuing financial year. The composition of the sub-committee was as follows :

Shri Hit Abhilashi President M.C.

Shri Megh Raj Member M.C.

Shri Chaman Lal Member M.C.

and 2 representatives of the lease holders, they were :

Shri Arjan Singh.

Shri Brij Lal

and this sub-committee held its meetings and give full consideration to the subject of formulating proposals for increasing the existing rates of rent, and submitted its report to the Committee. A copy of the report of the Sub-Committee is attached, it is self-explanatory, clear and full and throws light on the proceedings of the said sub-committee and provides the back-ground and basis for its suggesting an upward revision in the rental structure of the municipal properties.

The report of the above said sub-committee, with which I was not associated in any way, was considered by the general body of the Committee in its meeting held on 30th May 1961 and recommendations of the sub-committee for an upward revision of the rent of practically all the lease holders was accepted in toto and adopted by the committee unanimously without any objection whatsoever from any quarter, vide resolution No. 7 (copy enclosed). Since the recommendations of the sub-committee were all comprehensive in its nature and affected all the lessees and were patently and positively in public interest in as much as these were for effecting an increase in rents and no decrease therein, the motion was carried without any dissent. It was a general question and was dealt by the committee in a general way and affected all the lessees of the committee and my brother Madan Lal''s shop case was not given any particular consideration. Indeed it is incomprehensible as to how I being a party to a unanimous resolution of the nature abovesaid, whereby the committee stands to gain financially and the lease holders including my brother stand to pay higher rate of rents than the existing rent, in wide or wild sense of the term abused my position as a member of the committee and that too flagrantly. The said resolution No. 7 which is sought to be made a ground for taking action against me runs in the following words :

Report of the sub-committee is accepted, increase in rent is sanctioned, action be taken accordingly.

The position is quite clear and hardly needs extensive comments, for the resolution does not in the least show my interest in the matter.

This reply is the same so far as the other petitioner is concerned.

After considering the replies, the impugned notifications removing the petitioners were issued. It is against these notifications that Civil Writs Nos. 711 and 712 of 1963 have been preferred in this Court.

The first contention of the learned counsel for the petitioners is that no doubt rule 3-A of the Rules framed u/s 240 of the Municipal Act, which is in these terms :

3-A. No member of a Committee shall be present at or vote or take any other part in any proceeding of a committee or sub-committee relating to a matter in which he or either of his parents or the husband or wife as may be of any such descendant has a direct or indirect interest,

has been violated, yet the violation in the circumstances of these cases does not amount to flagrant abuse of powers as a Municipal Commissioner within the meaning of section 16(1)(e) of the Municipal Act. The facts that emerge from these petitions and which are not controverted are as follows :

That the contracts with the municipal committee were prior to the elections in which the petitioners took part and got elected;

that the question of raising the rents was submitted to a sub-committee to which neither of the petitioners was a party;

that the sub-committee examined the entire matter in a detailed manner in all its aspects. This is evident from annexure ''D'' in C.W. No. 712-1963;

that the sub-committee submitted a unanimous report to the municipal committee; and

that in the meeting of the municipal committee dated the 30th May, 1961, the report regarding enhancement of rent was considered and was adopted unanimously. This meeting was attended by both the petitioners.

At this stage, it may be mentioned that this committee is constituted of 8 members. Five out of these members were elected on Jan Sangh tickets and the remaining three on Congress tickets. The President of the committee is a Jan Sangh candidate and the. Vice-President was also a Jan Sangh candidate. Later on, one of the Jan Sangh members walked over to the Congress side with the result that the constitution of the committee became 4 Jan Sangh and 4 Congress, and it is at the instance of the Congress circles at Budhlada that the proceedings u/s 16(1)(e) of the Act were started.

The other contention raised by the learned counsel for the petitioners is that the removal has been actuated by malice.

In my opinion, it is not necessary to determine the second ground because in my view the first ground is made out and in view of that these petitions must be allowed.

To recapitulate, the first ground is that the requirements of section 16(1)(e) of the Act have not been satisfied in this case. Section 16 (1)(e) is in these terms :

(1) The State Government may, by notification remove any member of committee-

(a) * * * *

(b) * * * *

(c) * * * *

(d) * * * *

(e) if, in the opinion of the State Government he has flagrantly abused his position as a member of the committee or has through negligence or misconduct been responsible for the loss, or misapplication of any money or property of the committee.

(f) * * * *.

It will be apparent that before an order of removal is passed, an opinion has to be formed by the State Government that a member of the committee has flagrantly abused his position. Therefore, the short question that arises for determination is whether the abuse is flagrant or not and whether this is a matter to be decided objectively or subjectively.

The contention of the learned State counsel is that this matter has to be subjectively decided and not objectively, whereas the contention of the learned counsel for the petitioners is that it has to be decided objectively and not subjectively. The implication of the respective contentions is that if the matter is to be decided objectively, then the action of the Government will always be open to scrutiny by this Court but not otherwise. Mr. Doabia, learned State counsel strongly contends that any action u/s 16(1)(e) of the Act is an administrative action. Therefore, by necessary implication, the opinion to be formed before taking action under the provision is subjective, and cannot be questioned in a Court of law. This contention is partially correct. An administrative action may have to be taken in some cases and under some circumstances on purely subjective determination while in other cases it may have to be taken on objective determination. Where the administrative action has to be taken on purely subjective determination, certainly it is not open to review by any Court of law. But where the administrative action has to be taken in pursuance of a statute which requires that certain facts must exist before an action can be taken and those facts do not exist at the time the action is taken, under the statutory provision, it can always be shown that the action is uncalled for, because the conditions precedent for such an action do not exist. In such a situation the administrative action would therefore, be liable to be struck down as violative of the statute. In this sence the administrative action is objectively taken and not subjectively. I am, therefore, of the view that u/s 16(1)(e) of the Act the determination of the fact whether there is a flagrant abuse or not is objective determination and not purely subjective, as is contended for by the learned State counsel. I am further fortified in this conclusion because before action is taken under this provision the member concerned is required to show cause why it should not be taken. This requirement clearly indicates that the facts on which the opinion as to flagrant abuse has to be formed must be objectively determined. Both the learned counsel for the parties rely on a Full Bench decision of this Court in Joginder Singh v. State of Punjab (1963) 65 P.L.R. 267 (F.B) for their respective contentions I have gone through this case again, though I was a party to this decision. If the relevant parts of paragraphs 7 and 15 of the report of that case are read together, no manner of doubt is left in my miad that the determination as to whether there has been a flagrant abuse of his position by a member of the Municipal. Committee has to be objectively determined and not subjectively The relevant parts of the paragraph referred, to above are as under :

* * * It, therefore, comes to this that when a question arises whether a statutory authority has or has not acted in a cordance with law, the terms of the statute setting up that authority have to be examined and the Court has to decide, in view of the statutory provisions, whether the Authority concerned has exceeded the power or acted in a. manner contrary to the statutory provisions. It is, therefore, neither permissible nor in any sense proper to invoke the assistance of any outside rule whether of natural justice or otherwise. It is equally clear that it is only when a statutory authority is required by the appropriate authority to act in a judicial or quasi judicial manner that any question of any rule of natural justice really arises. In every case, therefore, the real question always is whether the terms of a particular statute setting up the particular authority have been observed or violated.

* * I do not think the words thgrantly abused his position as a member of the Committee''cany any such implication. What the clause means is that if a member of a Committee, in disregard of his duty, does any act or acts, which shock a reasonable mind, then he can be removed by the State Government, and again it is the State Government that has to form that opinion. I an quite char that if the allegations of fact made against the petitioner were true, then the State Government could well have held that the petitioner had thagrantly abased his position as a member of the Committee''.

It is significant that Dulat J. who delivered the judgment of the Full Bench clearly laid down that what is flagrant abused is an act which shocks a reasonable mind. Therefore, unless the facts establish that the acts alleged shock a reasonable mind, there can be no thgrant abuse. I am supported in this conclusion by a decision of the Supreme Court in P.J. Irani Vs. The State of Madras, A similar argument was addressed to their Lordships with regard to the grant of exemption under the Rent Control legislation, and while dealing with this matter their Lordships observed as follows in paragraph 14 of the report :

We shall now proceed to consider the prints urged by learned counsel for the appellant contesting the correctness of the decision of the High Court setting aside the order of Government exempting the premises in dispute for the reason that it was passed of grounds not germane to the purpose for which the power was conferred. As already stated the first point urged was that the order granting the exemption was an executable or an administrative order which was not amenable to being quashed by the issue of a writ of certiorari. We consider there is no substance in this objection. If the High Court who were right in their view that the order of exemption was passed for reasons which did not fall within the purpose for which the power was conferred by Section 13 of the Act the order itself would be one discriminatory of the second respondent as violating his fundamental right to equal protection of the laws. In such an event Article 226 would certainly be available to set aside such an order which affected the fundamental right of the petitioner before the Court. Indeed it was on the ground that individual orders passed by Government by virtue of the power confer red upon it by section 13 of the Act were examinable by the Court for their violating Article 14, that the constitutionality of section 13 was upheld and in the circumstances no objection could, therefore, be taken to a judicial review of such individual orders. Besides even if the order did not violate Article 14, still if the High Court were right in the view that the same was beyond the powers conferred on Government by section 13 of the the Act, we see no substance in the contention that the Court lacks power under Article 226 to set aside an ultra vires order vitally affecting a person''s right to statutory protection against eviction. We do not consider that immunity from interference by the Courts could be sought for orders which are plainty ultra vires merely because they were passed bona fide in the sense of being without indirect motive. Particularly so when the power of the High Court under Article 226 of the Constitution is not limited to the issue of writs falling under particular groupings, such as the certiorari, mandamus, etc., as these writs have been understood in England, but the power is general to issue any direction to the authorities, viz., for enforcement of fundamental rights as well as for other purposes.

Therefore, the question that has to be determined is whether the facts proved and admitted in these cases show that there was a flagrant abuse of his position by the petitioners. It is no doubt true that rule 3-A has been offended, but in my view that offending is not of such a nature as to amount to abuse much less flagrant abuse. At best it is case of indiscretion on the part of the petitioners. There was no suggestion at the meeting that the rents which had been raised had not been properly raised or the raise was inadequate. The petitioner had no hand in the deliberations of the sub-committee. No suggestion has been made in the return that they in any manner influenced the deliberations of the sub-committee. The report was acceptable to the opposition group as well and this fact clearly shows that everything was above board, and the report was unexceptionable. In this situation, it must be held that the provisions of section 16(1)(e) of the Act were not satisfied and the Government was not justified in issuing the notifications removing the petitioners from the membership of the municipal committee and also disqualifying them from contesting the elections for one year. That being so both these petitions are allowed and the impugned notifications are quashed. The petitioners would be entitled to their costs which are assessed at Rs. 50/- in each case.