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CASE NO.:

Appeal (civil) 1188 of 2002

PETITIONER:

BALDEV SINGH GANDHI

Vs.

RESPONDENT:

STATE OF PUNJAB AND OTHERS

DATE OF JUDGMENT: 14/02/2002

BENCH:

V.N. Khare & Ashok Bhan

JUDGMENT:

V. N. KHARE, J.

Leave granted.

Municipal Council, Jandiala Guru, district Amritsar, Punjab

(hereinafter referred to as 'the Council'), is established and constituted under

the provisions of the Punjab Municipal Act, 1911 (hereinafter referred to as

'the Act'). In the last election for constituting the Council, the appellant

herein was elected as a Municipal Councilor (in short as 'Councilor') from

Ward No. 3 of the Council. In the year 1998, the Council prepared and

finalised the house tax assessment list for all buildings within its limit

indicating therein the value of the buildings and the amount of tax assessed

thereto. The total revenue receipt out of the said levy was nearly ten lacs.

However, out of the said gross receipt, a sum of Rs. six lacs was sought to be

assessed and recovered as house tax from the houses falling within Ward

No. 3 from where the appellant was elected. When the said fact came to the

notice, the appellant publicly criticised the house tax assessment list as being

illegal and arbitrary. A writ petition was also filed before the Punjab and

Haryana High Court challenging the said house tax assessment list as

prepared and finalised by the Council. It is alleged that the then Chairman

of the Assessment Committee nourished ill-will against the appellant and,

therefore, he made a complaint to the government for his removal from the

Council. It is alleged that on the basis of the said complaint, the State

government served a show cause notice on the appellant calling upon him to

show cause as to why he should not be removed from the office of the

Council under clause (e) of sub-section (1) of Section 16 of the Act. The

charges leveled against the appellant are extracted below:

" Executive Officer Nagar Council, Jandiala Guru

has reported vide his office letter No. 99/1111

dated 14.9.99 that Nagar Council acting as per

new directions and after completing the survey for

House tax had decided 90% cases of the House

Tax by 30.3.90. Nobody has opposed the house tax

except you from the whole city. You have also

issued a pamphlet in which you have made

allegation that the Nagar Council is collecting the

house tax as per its own wish and you have

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appealed to the residents that the objections

regarding house tax be given to you and your M.C.

colleagues between 9 AM to 1PM on 9.4.99 in the

office of the Nagar Council so as appropriate steps

can be taken to stop the arbitrariness of the Nagar

Council. You have also got it announced through

speaker in the city and you stayed in the office of

the Nagar Council to hear the objections

regarding house tax. Only 10-15 persons met you.

Due to this the Nagar Council had suffered great

difficulty in collection of house tax from the

people.

Due to the facts as mentioned above Nagar

Council Jandiala Guri has suffered difficulty while

collecting the house tax and as a result of which

financial loss has been caused to the Nagar

Council. Therefore you have violated Punjab

Municipal Act, 1911. Therefore, there is a

proposal to remove you from the membership of

Nagar Council, Jandiala Guru u/s. 16 (1) (e) of the

Punjab Municipal Act, 1911."

On receipt of the said show cause notice, the appellant furnished an

explanation. In the said explanation the appellant denied that he had either

flagrantly abused his position as a member of the Council or committed any

misconduct as a result of which the Council was put to any financial loss.

It was also alleged therein that the show cause notice was mala fide. It was

also stated therein that it was out of sheer ill will that his constituency was

picked up for arbitrary and excessive taxation and, therefore, as a

representative of the said Ward, he protested against the house tax

assessment list prepared by the Committee. The government of Punjab by an

order dated 25.8.1999 removed the appellant from the office of the Council

under clause (e) of sub-section (1) of Section 16 of the Act. Aggrieved, the

appellant preferred a writ petition before the High Court of Punjab and

Haryana which was dismissed. It is against the said judgment and order of

the High Court, the appellant has preferred this appeal by way of special

leave petition.

On argument of learned counsel for the parties, the questions that arise

for our consideration are these

1) whether the charges leveled against the

appellant fall within the ambit of clause (e)

of sub-section (1) of Section 16 of the Act ;

2) whether acts attributed to the appellants

has any nexus with the financial loss

alleged to be suffered by the Council ; and

3) Whether the findings recorded by the State

government while removing the appellant

from the office of the Council are outside the

scope of the charges leveled against the

appellant.

Since question nos. 1 and 2 are overlapping, we proceed to decide

both the questions together.

In order to deal with these questions, it is necessary to split the

relevant portion of the charge leveled against the appellant, which are

broadly as under :

"Executive officer

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(a) You are also issued a pamphlet in which you

have made allegation that the Nagar Council is

collecting house tax as per its own wish and you

have appealed to the residents that the objections

regarding house tax be given to you and your M.C.

colleagues for taking appropriate steps to stop the

arbitrariness of the Nagar Council. You also

get it announced through loud speaker in the

city..

(b) Due to the aforesaid action, Nagar Council

suffered great difficulty in collection of house tax

from the people and as a result of which the

Municipal Council was put to financial loss.

Therefore, you have violated the provisions of the

Act".

A perusal of the aforesaid charge against the appellant shows that

what was attributed to the appellant was that he through pamphlets and also

on loudspeaker made a protest against the house tax assessment list prepared

by the Council. The question, therefore, arises whether such a charge would

constitute 'misconduct' within the meaning of clause (e) of sub-section (1)

of Section 16 of the Act.

Section 16 of the Act which empowers the State government to

remove any member of a committee runs as under:

"16. Power of the State Government as to removal

of members:- (1) The State Government may, by

notification [remove any member of a committee

other than an associate member] :

(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".

'Misconduct' has not been defined in the Act. The word 'misconduct'

is antithesis of the word 'conduct'. Thus, ordinarily the expression

'misconduct' means wrong or improper conduct, unlawlful behaviour,

misfeasance, wrong conduct, misdemeanour etc. There being different

meaning of the expression 'misconduct', we, therefore, have to construe the

expression 'misconduct' with reference to the subject and the context

wherein the said expression occurs. Regard being had to the aims and

objects of the statute. The appellant herein is an elected municipal councilor

to a democratic institution i.e. local body. The aim and object of the Act is

to make better provisions for administration of municipalities. The

municipality is a democratic institution of self governance consisting of

local people and for the local people and by the local people. The prime

object of the local body is to serve the local people and to provide amenities

and service to the people residing within the municipality. As a

representative of the public it is the duty of an elected representative to see

that the public of his constituency are not burdened with excessive and

arbitrary levy. No doubt, a municipal commissioner holds a statutory office

in a municipal council, but no statutory code of conduct in respect of

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municipal councilors has been enacted. However, it is a different question

whether such a law could be framed as to restrict the freedom of speech and

expression of a municipal councilor. However, it must be borne in mind that

the appellant was not an employee or a servant of the municipal council and

also never held any office of profit in the municipal council. Every citizen,

inasmuch as a municipal councilor, has a freedom of speech and expression

under Art.19(1)(a) of the Constitution which includes fair criticism of the

law or any executive action. Freedom of speech and expression is

guaranteed in our democratic republic both in legislature as well as in local

bodies and, therefore, a legislator or a municipal councilor legitimately can

express his views in regard to what he thinks to be in public interest. A

legitimate exercise of right of speech and expression including a fair

criticism is not to be throttled.

It is no doubt true that a citizen or a municipal councilor must obey

the law duly passed by the legislature or municipal council. The observance

of rule of law by all citizens and municipal councilors is one of the basic

requirements of working of a democracy. The rule of law which is obeyed

not only by the officers and public servant of the State or local bodies, but

by all the citizens and holders of elected offices, is a pre-condition of a

healthy and successful democracy. No responsible person in a democracy

could incite the people to disobey the rule of law duly enacted. But

situations may arise where responsible persons or those who hold elected

offices may feel that it is their duty to criticise the law either promulgated by

the State or the municipal council as illegal, arbitrary or ultra vires and

against the public interest and invite the people to come for discussion on the

subject. Can such a conduct be attributed as a 'misconduct' ?

Sir Alfred Denning L. J. in the Hamlyn Lecture on Freedom of Mind

and Conscience, Freedom Under the Law, at p. 35 stated thus:

" Every one in the land should be free to think his

own thoughts to have his own opinions and to give

voice to them, in public or in private, so long as he

does not speak ill of his neighbour, and free also to

criticise the government or any party or group of

people, so long as he does not incite anyone to

violence".

Douglas J. in Terminiello Chicago (1948) 337 US 1, stated thus:

"It is only through free debate and free exchange

of ideas that government remains responsive to the

will of the people and peaceful change is effected."

Holmes and Brandeis JJ. in American Communications Association

vs. Douds (1949) 339 US 382, "that the greater danger to democracy lies

in the suppression of public discussion and that ideas and doctrines thought

harmful or dangerous are best taught with words".

Here, the appellant criticised the house tax assessment list and asked

the tax payer to come to him for sorting out the grievances. The appellant

as an elective representative of the Ward held his office in trust for the

public and was expected to exercise his functions in the interest of the

public. This being the case, his criticism of the house tax assessment list was

in furtherance of what he believed to be in public interest. Keeping in view

the aim, object and the scheme behind the provisions of the Act and also in

the context the expression 'misconduct' has been used, such a criticism by

the appellant against the house tax assessment list cannot be construed as

'misconduct'. We are, therefore, of the view that the criticism by the

appellant of the house tax assessment list prepared and finalised by the

Council did not constitute 'misconduct' within the meaning of the

expression 'misconduct' occurring in clause (e) of sub-section (1) of Section

16 of the Act.

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Then again question arises whether is there any rational connection

between the act attributed to the appellant and the alleged loss of revenue

suffered by the municipal council. It may be remembered that the

connection between the legislation and object of legislation must be real and

proximate and not far-fetched.. The Constitution of India never

contemplated that freedom of speech & expression guaranteed under Art.

19(1)(a) which includes a fair criticism of law and executive actions could

be infringed on the ground of remote or speculative ground, otherwise all the

guaranteed liberties under the Constitution are liable to be infringed on one

excuse or the other. What is to be seen is the act attributed to the appellant

must have direct and real connection with the alleged loss in revenue

suffered by the municipal council, and unless there is such a connection, it

cannot be held that loss in revenue was the result of the act attributed to the

appellant. It is not the case of the State Government that the appellant

incited tax payers not to pay taxes or incited people to resort to violence

against house tax assessment list. A fair criticism of the house tax

assessment list by the appellant has no bearing on the alleged loss in revenue

of the Council. According to us, what is contemplated in clause (e) of sub-

section (1) of Section 16 of the Act is that the loss of revenue must be a

direct result of misdemeanour of a municipal councilor. We, therefore, find

that there is no rational nexus between the act attributed to the appellant

and the alleged loss in revenue to the Council. Before we part with this

question, we are deposed to go into the question whether, in real sense, was

there any loss in revenue to the Council by the alleged criticism of house tax

assessment list. The charge against the appellant was that because of his

acts, there was difficulty in realisation of house tax and, therefore, loss in

revenue was caused to the Council. It is not disputed that house tax

assessment list was a new list and 85% of the tax payers paid the house tax

and merely an insignificant number of tax payers did not pay the house tax.

It, therefore, does not mean that house tax dues were lost and became

unrecoverable. In fact, there was no loss in revenue and only recovery of

taxes were deferred. It is not disputed that arrears of tax can be recovered as

arrears of land revenue by the Collector. In that view of the matter, we are

of the view that, in fact, there was no loss in revenue to the Council. The

appellant was exercising only his democratic right of fair criticism of the

house tax assessment list prepared and finalised by the Council and such an

act had no rational nexus with the alleged loss in revenue suffered by the

Council. We are, therefore, of the view that the charge leveled against the

appellant was totally outside the scope of clause (e) of sub-section (1) of

Section 16 of the Act.

Reliance was placed on behalf of the respondents in the case of M. H.

Devendrappa vs. Karnataka State Small Industries Development Corporation

1998 (3) SCC 732, for the proposition that even if the appellant while

exercising his fundamental right, as guaranteed under Section 19 (1) (a) of

the Constitution, yet he was supposed to protect the interest of the Council.

We are of the view that the said decision has no application in the present

case. In the said case, the petitioner was an employee of the Karnataka State

Small Industries Development Corporation. Being an employee he sent

letters to the governor and other authorities against the Chairman of the

Corporation attributing serious allegation against him and indulged in party

politics. He also issued press statements against the Chairman for his illegal

activities. For such an act, the petiioner was dismissed from service. The

writ petition against the order of dismissal from service was dismissed which

was upheld by this Court on the ground that Rule 22 of the Service Rule

provided that any employee who commits a breach of rules or does anything

detrimental to the interest or prestige of the Corporation or guilty of any

activity of misconduct or misbehaviour, shall be liable to one or more of the

penalties. But that is not the case here. The appellant as a representative of

public owed a duty not merely to the municipal council, but also to the

public of his constituency. He held the office in trust for them. Since as an

elected representative of public he was expected to safeguard the interest of

the public, and while doing so it cannot be said he committed any

misconduct.

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Insofar as the third question is concerned, we have already extracted

the charge leveled against the appellant. The State government after

receiving the explanation offered by the appellant removed him from the

office of the municipal council after recording the following finding:

" It is amply clear from the record that Shri

Baldev Singh had almost invited the people against

the house tax assessment. He has gone to the

extent of voicing his negative feelings through

distribution of pamphlets. He had called upon the

people to lodge their protests before his vis-à-vis-

the house tax cases. An elected representative is

required to be sober and responsible when it

comes to public interest. He is expected to

maintain the dignity and decorum and keep the

interest of the municipality above personal

consideration. In the instant case, Shri Baldev

Singh Gandhi has certainly acted rashly and

irresponsibly.The actions of Shri Baldev

Singh Gandhi were clearly aimed at injuring the

financial interests of the municipality. He thus

renders himself actionable under section 16(1)(e)

of the Punjab Municipal Act, 1911. Accordingly,

he is hereby removed from the membership of the

council."

The charge leveled against appellant was that because of his criticism

of the house tax assessment list, the Council suffered loss in revenue.

Whereas, no finding has been recorded by the State government that because

of the act of the appellant, the Council has suffered any loss in revenue. In

absence of such a finding,, the finding recorded in the impugned order of

removal passed by the State Govt. is totally outside the scope of charge

leveled against the appellant, and for that reason also, the order of removal

of the appellant is not sustainable in law.

In view of what has been stated above, we are of the view that the

order of removal against the appellant being beyond the scope of clause (e)

of sub-section (1) of Section 16 of the Act was illegal.

In that view of the matter, the judgment and order under challenge is

set aside and the appeal is allowed. Consequently, the writ petition filed by

the appellant also stands allowed. We direct that the respondent (s) shall pay

Rs. 5,000/- as costs, to the appellant.

J.

(V. N. Khare)

J.

(Ashok Bhan)

February 14, 2002