Sohan Lal Ahuja vs State of Punjab and others

Surinder Singh, J.

In the ultimate analysis the point which would fall for determination in this writ petition is as to whether the President of a Municipal Committee even if validly ordered to be removed from his office, would also lose his status as a member of the Municipal Committee. However, before adjudicating upon this point, it would be appropriate to notice the facts.

Sohan Lal Ahuja petitioner was elected as a Municipal Commissioner of Municipal Committee, Abohar in its election held in June, 1979. He was one of the thirteen members who had been elected on the ticket of Bhartiya Janata Party (hereinafter referred to as the B.J.P.), the total number of elected members being twentyone. Seven elected members belonged to CongressI, while one of them was of C.P.M. Three more members belonging to the B.J.P. were coopted. It is admitted in the return filed on behalf of the State that the total number of members was twentyfour including three coopted members. The allegiance of the petitioner and others to various political parties is, however, denied for want of knowledge. It is further stated in the petition that the petitioner was unanimously elected as President of the Municipal Committee on August 7, 1979, though this fact is also denied for want of knowledge by the Punjab State. The petitioner goes on to allege mala fides against Shri Sajjan Kumar Jakhar respondent No. 3, a Member of the Legislative Assembly on the ground of political rivalry. This ground of mala fides has, however, not been pressed during the course of the arguments and hence there is no purpose in making any detailed reference thereto.

The material allegation in the petition is that on November 11, 1980, a showcause notice was issued to the entire Municipal Committee under Section 238 of the Punjab Municipal Act, to which the Municipal Committee submitted its reply on December 4, 1980. The showcause notice was, however, dropped later on. Another showcause notice was issued to the Municipal Committee on March 6, 1981 and the Committee also submitted a reply to the same. Ultimately on May 14, 1981, the Punjab Government suspended the Municipal Committee for a period of one year. The suspension was challenged in Civil Writ Petition No. 1973 of 1981 which was dismissed by a Division Bench of this Court on June 3, 1981. The Special Leave Petition filed by the petitioner was, however, granted and the matter is said to be pending in the Hon''ble Supreme Court of India.

It is stated in the Writ Petition that the initial period of one year of suspension of the Municipal Committee had to expire on May 13, 1982, but the Punjab Government extended this period for another year i.e. up to May 13, 1983. The Municipal Committee, however, resumed its working on the latter date after the expiry of two years'' period of suspension. On March 17/21, 1983, a showcause notice was issued to the petitioner under Sections 16 and 22 of the Punjab Municipal Act (Copy Annexure P1) requiring the petitioner to submit his reply within twentyone days of the despatch of the notice. The petitioner submitted his reply to the notice and the copy of the same is Annexure P2. The petitioner was thereafter afforded a personal hearing by the DirectorcumJoint Secretary, Local Government Department, Punjab, on May 19, 1983. Ultimately vide notification of the Punjab Government published in the Official Gazette on June 10, 1983 (Copy Annexure P5), the petitioner was removed from the office of the President of the Municipal Committee and was further disqualified for participating in its elections for a period of five years. It is this order of removal and penalty which is impugned in the present Writ Petition.

In its return (to the Amended Writ Petition), the State of Punjab through its Under Secretary to Government, Punjab, Local Government Department raised certain preliminary objections and also replied to the allegations in the Writ Petition on merits. In so far as the preliminary objections are concerned, the main contention is that the petitioner was found guilty of misuse of powers under Section 22 of the Punjab Municipal Act (hereafter referred to as the Act) and after he was given an opportunity of being heard by the Director Local GovernmentcumJoint Secretary, Local Government, the impugned order removing him from the office of President and imposing the penalty of disqualification was issued with the approval of the competent authority and notified in the Punjab Government Gazette on June 10, 1983 which was stated to be in accordance with the statutory provisions. The conduct of the petitioner was termed as a `flagrant abuse of his powers''. It was further stated that there was sufficient material on the record to prove that the petitioner had misused his official position as a President of the Municipal Committee on account of which he did not deserve to hold this public office and was liable for removal therefrom under Section 22 of the Act. The objection raised is that the petitioner had no legal right which had been infringed and he could not invoke the extraordinary jurisdiction of this Court in this behalf. The other preliminary objections are more or less formal.

On merits, the admitted facts in the written statement have already been noticed. However, certain other facts highlighted therein may be noticed. It was averred that the petitioner at the time of being heard by the Joint Secretary to the Government in reply to the specific charges against him, was accompanied by his counsel stood testimony to the fact that he had been afforded full opportunity in the matter before the final orders were passed. The action of the Government in dropping one of the charges was also stated to be a pointer to the application of mind by the competent authority. The stand of the Government in regard to the main charge against the petitioner of leasing out a piece of land to the B.J.P. for a period of 99 years was elucidated in para 15(iii) of the written statement, which is reproduced in extenso, for facility of reference:

``That the allegations against the petitioner regarding leasing out a piece of land measuring ``40X200'''' for a period of 99 years to the Bhartiya Janta Party stands proved against the petitioner which amounts to the misuse of powers by virtue of his office being the President of the Municipal Committee, Abohar. Even placing the matter before the Committee by the petitioner for decision is in violation of Municipal properties under the Control of Municipal Committee Rules framed under the provisions of Section 240 of the Punjab Municipal Act 1911. Even after the resolution was passed by the Municipal Committee Abohar it was the duty of the President of the Committee to mark the case to the Executive Officer of the Municipal Committee Abohar for implementing the decision of the Committee, which was never done deliberately with ulterior motive so that he may not point out illegality committed by the petitioner and the Municipal Committee for leasing out the land in question to Bhartiya Janta Party. But instead, the petitioner ordered himself on 24th April, 1981 vide annexure R/1 to Sh. Khairati Lal Patwari, to hand over the possession of the land to Shri Kundan Lal Setia, Secretary Bhartiya Janta Party for which he was not legally entitled to do so. Thus it is evident that Shri Sohan Lal Ahuja, President of the Municipal Committee, Abohar acted in undue haste and in violation of Rules to help his party in leasing out the land for 99 years to the Bhartiya Janta Party to which party he belongs as already stated by him repeatedly in the writ petition and as such he cannot be absolved of his responsibility and his action thus falls within the mischief of Section 22 of the Act for the misuse of his powers and cannot shift his responsibility on the Municipal Committee, Abohar for the illegality committed by him. Moreover, the Municipal Engineer, Municipal Committee Abohar vide his note dated 24th September, 1981 looked into the matter and submitted his report as per annexure R/2 that the Bhartiya Janta Party has started construction of the building on the land in question without the prior approval of the Municipal Committee as required under Section 189 of the Punjab Municipal Act, 1911. It was further reported that there was on the file of Municipal Committee, Abohar onesided rent deed of the said land signed by Shri Kundan Lal Setia, Secretary, Bhartiya Janta Party and Shri Madan Mohan signed as witness but nobody signed on behalf of the Municipal Committee, Abohar which is essential in order to execute valid rentdeed. This was also pointed out that action on this file was being taken without the approval of the then Executive Officer, Municipal Committee, Abohar Shri O. P. Mehta. Thus the petitioner having affiliation with the Bhartiya Janta Party was all set to part with the land by using foul means in violation of the statutory Rules. The sequence of events available on the record also indicate that the Bhartiya Janta Party started construction without the prior approval of the Municipal Committee, Abohar as required under statutory provisions at the instance of the petitioner and even the onesided rent deed was placed on the file of the Municipal Committee, Abohar which was not signed by any of the officials on behalf of the Committee with the connivance of the petitioner. Thus the petitioner has flagrantly abused his position as a member and President of the Municipal Committee, Abohar.''''

In reply to another legal objection that even though the petitioner was removed from the office of President, he could not be disqualified from Membership of the Municipal Committee, the following averment was made in subparas (vi) and (xiv) of Para 15 in the written statement:

``(vi) That the charges of misuse of powers by the petitioner stood proved against him and he was found guilty for the misuse of powers and was thus removed from the Presidentship of the Municipal Committee, Abohar. The disqualification of a member is automatic upon his removal. Even no separate notice is required to be given by the State Government in connection with his disqualification under Section 16(i) of the Act ibid. In view of the authoritative pronouncement of the Full Bench Judgment of this Hon''ble Court in Joginder Singh v. The State of Punjab and another, A.I.R. 1963 Punjab 280, the Honourable Single Judge Mr. Justice I. S. Tiwana vide his order dated 23rd August, 1980 in the case of C.W.P. No. 1869 of 1977 Suraj Prakash Malhotra v. State have held that the decision of the State Government disqualifying the petitioner for five years is purely an administrative matter and there is no question of recording any detailed reasons for the fixation of that period which is purely the discretion of the Government. Thus the action taken by the State Government for removing the petitioner under Section 22 of the Punjab Municipal Act, 1911 and his disqualification for a period of 5 years is perfectly legal and deserves to be upheld and is based on the detailed reasoning on the file of the Department and the impugned Notification.'''' ... ... ... ...

``(xiv) Denied being incorrect. The President cannot take shelter of the fact that since the resolution No. 160 was adopted by Municipal Committee, Abohar as such he cannot be held responsible for the leasing out the land in question to the Bhartiya Janta Party is thus not liable for action under Section 22 of the Punjab Municipal Act, 1911 and Section 16 of the Act ibid. The land in question which has been leased out by the President without following proper procedure and in violation of statutory rules with an ulterior motive to help the Bhartiya Janta Party to which party the petitioner belongs as stated by him repeatedly in the writ petition, as such he is guilty for the misuse of his powers as President and liable for action.''''

Controverting, still another legal objection about the nonissue of notice to the petitioner before imposing the penalty of disqualification, a reference was made to the Full Bench decision in Joginder Singh''s case (supra), wherein it was held that when a member of a Municipal Committee was removed under Section 16 of the Act, the imposing of a disqualification for further membership under subsection (2) did not require any further notice to the member concerned. Reliance was also placed upon a decision of a learned Single Judge of this Court in Civil Writ Petition No. 1869 of 1977 (Suraj Parkash Malhotra v. State of Punjab). The impugned order was, thus, defended as legally valid and a prayer for dismissal of the Writ Petition was made.

The learned counsel for the petitioner had made certain submissions and the same may be considered seriatim. The first contention raised by the counsel, which is more in the nature of `a warming up manipulation'' before the exercise, is that in the Show Cause Notice issued to the petitioner (Copy Annexure P1), it was mentioned in para 2 that the petitioner was alleged to have abused his position as a President of the Municipal Committee within the meaning of Section 16(1) read with Section 22 of the Act. From this averment, it is sought to be argued that there was no specific charge against the conduct of the petitioner as a member of the Municipal Committee and hence his removal from that office was vitiated. We do not, however, agree with this contention. Section 16 of the Act relates to the powers of the State Government for the removal of members of a Municipal Committee and subsection (1) thereof deals specifically with this matter. The said provision having been mentioned, it was not necessary to mention the words ``and member'''' after the word ``President'''' in para 2. In any case, a further reading of the Show Cause Notice, i.e. Para 3 would elucidate that the petitioner was called upon to show cause as to why he should not be removed from the membership/Presidentship of the Municipal Committee. There is, thus, no ambiguity in this behalf nor can the petitioner obtain any benefit on that score.

The next point urged by the learned counsel, which is on the merits of the case, is that there was no justification for penal action against the petitioner on the charge of grant of lease of land to the B.J.P. for a period of 99 years as the said lease had been granted in pursuance to a Resolution passed in the meeting of the Municipal Committee for which no blame could be fixed upon the petitioner personally. Here again, the argument is devoid of force. As already noticed, the specific charge against the petitioner as in the Show Cause Notice is that the petitioner had leased out the land in question to the B.J.P. at a nominal rent of Rs. 500/ per annum without the prior approval of the State Government as required in view of Resolution No. 160 dated April 1, 1981, passed by the Municipal Committee. The second leg of the same charge is that the petitioner was responsible for handing over the possession of the land in undue haste without following the proper procedure as laid down in the instructions of the Government in this matter. So far as the first part of the charge is concerned, a glance at the Resolution (Copy Annexure P7) would show that a specific mention was made regarding the fact that the approval for the lease shall be obtained from the Punjab Government according to Rules. It was further mentioned that even the proposed rent to be charged from the lessee would be got approved from the Government. As a President of the Municipal Committee, it was the duty of the petitioner to ensure that the terms of the Resolution in regard to obtaining the approval of the Punjab Government for the lease as well as for the rent, were approved before the possession of the property was delivered to the B.J.P. On the other hand, as contained in the second part of the charge the petitioner without even following the procedure laid down by the Government ordered the handing over of the possession of the land in undue haste. This fact has been evidenced by the production of a copy of the order passed by the petitioner on April 24, 1981 (Annexure R/1 to the written statement of the State Government). The document is an order signed by the petitioner as President of the Municipal Committee addressed to Kharaiti Lal Patwari, Municipal Committee, Abohar, directing him to deliver possession of the land to Shri Kundan Lal Setia, General Secretary of the B.J.P., Abohar, after visiting the site. Subsequently, the Municipal Engineer of the Municipal Committee after looking into the matter, submitted a report (Annexure R/2) that the B.J.P. had even started construction of the building on the land in question without obtaining the prior approval of the Municipal Committee. A significant part of the report is that on the file of the Municipal Committee there was only a unilateral Rent Note signed by Kundan Lal Setia, General Secretary of the B.J.P. and Madan Mohan as a witness. The document did not bear the signature of any Officer of the Municipal Committee which was essential for the due execution of a valid Rent Deed. The issuance of the orders by the petitioner to the Patwari to hand over possession of the land without routing the matter through the Executive Officer of the Municipal Committee was also indicative of his improper conduct as President of the Committee. As a result of cumulative consideration of all the facts and circumstances, it was thus rightly concluded that the petitioner had abused his position as President of the Municipal Committee in regard to the matter discussed above. The argument of the learned counsel, therefore, that the lease was granted merely in pursuance to a Resolution of the Municipal Committee does not cut any ice.

The main and, in fact, the only point which requires serious consideration in this Writ Petition is as to whether in spite of the removal of the petitioner from the office of the President on account of his objectionable conduct, was his removal from the membership of the Municipal Committee a necessary consequence or not ? In so far as the legal position is concerned, the statutory provisions governing the removal of the President and a member are separately contained in Sections 22 and 16 of the Act respectively. A perusal of these two provisions would show that the two are quite independent of each other. Whereas a President of the Municipal Committee may be removed from his office by the State Government on the ground of an abuse of his powers or habitual failure to perform his duties or in pursuance of a resolution requesting his removal passed by twothirds of the members of the Committee, the reasons for the removal of a member of the Municipal Committee are quite varied as contained in clauses (a) to (g) of Section 16(1). Indeed there is an overlapping in so far as the flagrant abuse of position is concerned but this would not result in a conclusion that the removal of a person from the office of the President would automatically entail his removal from the membership of the Committee also. Indeed the term `member'' includes the President, but the converse is not true. Again in a given case the grounds for the removal of the President may also be sufficient to warrant his removal from the membership of the Committee but this would not be automatic. From the pleadings of the parties particularly the written statement of the State Government, we do not find any sufficient ground to hold that a case for the removal of the petitioner from the membership of the Committee was made out under any of the clauses (a) to (g) of Section 16(1) of the Act.

The learned counsel for the petitioner has raised still another point that no notice to Show Cause was issued to the petitioner before imposing upon him the penalty of disqualification from the membership of the Committee for a period of five years. However, as already noticed in the earlier part of the judgment, the matter stands concluded by the Full Bench decision in Joginder Singh v. The State of Punjab and another, A.I.R. 1963 Punjab 280. In a similar case, the matter was considered by a subsequent Full Bench in The State of Punjab v. Bhagat Ram Patanga, A.I.R. 1970 Punjab and Haryana 9, and the view expressed was affirmed by the Supreme Court in A.I.R. 1972 Supreme Court 1571 in an appeal against the judgment of the High Court in the very case. The learned counsel for the petitioner made a faint attempt to avoid the rigour of the above authorities by trying to distinguish the same but without avail.

The result of the above discussion is that the Writ Petition succeeds partly to the extent that while part of the impugned order (Annexure P. 5) removing the petitioner from the office of the President is upheld, his removal from the membership of the Municipal Committee is quashed, so also the penalty of disqualification to be a member of the Committee for a period of five years.

In the circumstances of the case, there shall be no orders as to costs of the Writ Petition.