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CASE NO.:

Special Leave Petition (crl.) 9325-9326 of 2000

PETITIONER:

STATE OF PUNJAB & ORS.

Vs.

RESPONDENT:

BHAJAN SINGH & ANR.

DATE OF JUDGMENT: 27/02/2001

BENCH:

K.T.Thomas, R.P.Sethi

JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J

SETHI,J. Leave granted. Election process was

scuttled and the democratic values throttled by a bureaucrat

who happened to be Principal Secretary of the Local

Government Department (hereinafter referred to as "the said

Secretary") of the State of Punjab at the relevant time.

Flouting all norms, violating statutory provisions and

showing scant respect to the principles of law, the said

Secretary deprived respondent No.1, the elected

representative of the people, to perform his duties firstly

as Member and then as the President of the Municipality,

obviously to oblige his political opponents who incidentally

happened to belong to the ruling parties (Shiromani Akali

Dal and BJP) in the State of Punjab. Inaction attributable

to the said Secretary in performance of his statutory

obligations and instead ill-action taken by him is a matter

of concern not only for the respondent No.1 but all those

who believe in the rule of law and the preservance,

development and conservation of democratic institutions with

their values in the country. There is no gainsaying that

free, fair, fearless and impartial elections are the

guarantee of a democratic polity. For conducting, holding

and completing the democratic process, not only a potential

law based upon requirements of the society tested on the

touchstone of experience of times, but also an independent,

impartial apparatus for implementing and giving effect to

the results of the election is the sine qua non for ensuring

the compliance of statutory provisions and thereby

strengthening the belief of the common man in the rule of

law, assured to be given to the people of this country. Any

attempt made to weaken the system, particularly when its

intention is likely to affect the socio-political fabric of

the society, if not checked and curtailed, may result in

consequences which could not be else but disastrous to the

system. No person, much less a civil servant, can be

permitted to frustrate the Will of the people expressed at

the elections, by his acts of omission and commission. The

law relating to the elections is the creation of the statute

which has to be given effect to strictly in accordance with

the Will of the Legislature. The respondent NO.1 was a

candidate to the elections of the Muncipal Council, Samrala

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(Punjab) held on 2.1.1998. He was a candidate of the CPI

(M) and was elected as a Municipal Councillor along with 12

others. A meeting was called by the Sub-Divisional

Magistrate on 6.4.1998 for administering the oath of

allegiance to the elected members of the Municipal Council

and for election of its President and Vice President. It

appears that all the elected members, with the exception of

those belonging to BJP and Shiromani Akali Dal attended the

meeting and took the oath. Congress Members proposed the

name of respondent No.1 and the Returning Officer declared

him elected as President of the Municipal Council (Annexure

P-6). Despite election of the President and the Vice

President, the notification in terms of Section 24 of the

Punjab Municipal Act, 1911 (hereinafter referred to as "the

Act") was not issued by the State Government. Aggrieved by

the inaction of the appellants, particularly the said

Scretary, the respondent No.1 on 15.5.1998 filed a writ

petition being Writ Petition No.7105 of 1998 praying therein

for the issuance of a writ of mandamus directing the

appellants to issue notification regarding his election as

President of the Municipal Council, Samrala in the meeting

held on 6.4.1998. Written statement in the said writ

petition was filed in the High Court on 13th August, 1998.

In the meanwhile a show cause notice dated 1.7.1998 was

issued to the respondent NO.1 proposing to take action

against him under Section 16(1)(e) of the Act and removing

him from the Membership of Nagar Panchayat/Council, Samrala

(Ludhiana). The show cause notice was accompanied by the

details of the allegations wherein it was stated: "Regional

Deputy Director, Local Government, Ludhiana has intimated

vide his letter No.DDLG/S3/ 2258 dated 21.4.1998 before the

issuance of the notification for the President in accordance

with the instructions of the Government you have interfered

in the working of the Nagar Council and did not behave

properly. By doing so you have misused the powers vested

under Section 16(1)(e) of the Punjab Municipal Act, 1911.

Therefore, it is proposed to take action under Section

16(1)(e) of the Punjab Municipal Act, 1911 and to remove him

from the membership."

The respondent No.1 submitted his reply on 23rd July,

1998 and the said Secretary vide his notification

No.6/16/980-3LGIII/4498 dated 9.4.1998 removed the

respondent No.1 not only from the Presidentship but also

from the Membership of the Nagar Council, Samrala. Feeling

aggrieved, the respondent No.1 filed a writ petition in the

High Court which was allowed vide the order impugned by

quashing the impugned notification and issuance of

directions to the respondents therein to notify the name of

the respondent No.1 herein within a week. The respondent

No.1 was also held entitled to the payment of costs which

was quantified at Rs.10,000/-. Assailing the judgment of

the High Court, Mr.Rajiv Dutta, Senior Advocate who appeared

for the appellants submitted that as the respondent No.1 had

not been properly elected as President of the Municipal

Council, he by assuming the charge of that post abused his

position and incurred a disqualification to be a member of

the Municipal Council. Referring to Sections 16 and 24 of

the Act, the learned Senior Advocate submitted that the

action of the said Secretary was legal, valid and according

to law. The judgment of the High Court has been termed to

be contrary to law. According to him, the State Government

had the discretion to notify or not to notify the election

of the President in terms of sub-section (2) of Section 24

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of the Act. It is contended that as the respondent No.1 was

proved to have 'flagrantly abused' the position as Member of

the Council, he had incurred a disqualification under clause

(e) of sub-section (1) of Section 16 which justified the

action by the appellants for his removal. Chapter III of

the Act deals with the constitution of Council which has

been defined under Section 2(4) to mean a Municipal Council

or a Nagar Panchayat, as the case may be, constituted under

Section 12 of the Act. Under Section 13A, the State

Government has been empowered to direct holding of general

elections of the members of the Municipalities or an

election to fill the casual vacancy by the issuance of

notification. As soon as a notification is issued, the

Election Commissioner is mandated to take necessary steps

for holding such elections. It may be noticed at this stage

that the general elections to the Panchayat and the

Municipalities are to be conducted by the State Election

Commission constituted under the Punjab State Election

Commission Act, 1994 (Punjab Act No.19 of 1994). After the

general elections of the Municipality, election of President

and Vice President is to be conducted in terms of Section 20

of the Act. The term of the office of the President of a

Municipality is co-terminus with the term of Municipality

under Section 21 of the Act. No elected member of a

Municipality can enter upon his duties as such member until

he has taken or made, at a meeting of the Municipality, an

oath or affirmation of his allegiance to India in the form

prescribed under sub-section (1) of Section 24. Sub-section

(2) of Section 24 of the Act provides: "The State

Government shall notify in the Official Gazette every

election of a President of a Municipality and no President

shall enter upon his duties as such until his election is so

notified:

Provided that the State Government may refuse to

notify the election as President of any person who has

incurred a disqualification under this Act or under any

other law for the time being in force, subsequent to his

election as member of the Municipality;

Provided further that the State Government shall not

refuse to notify the election of the President without

giving an opportunity of being heard to the concerned

person."

It is not disputed that despite the election of

respondent No.1 as President on 6.4.1998, a notification in

terms of sub-section (2) of Section 24 of the Act was not

issued forcing the respondent NO.1 to file Writ Petition

No.7105 of 1998 in the High Court on 15.5.1998. We do not

agree with the argument of Mr.Dutta that the State

Government or the said Secretary had an unbriddled power or

option to notify or not to notify the election of the

President in the Official Gazette. Such an argument will

not only be contrary to the concept of democracy and the

rule of law but in fact flagrant violation of the mandate of

the Act as incorporated in Sub-section (2) of Section 24 of

the Act. A duty is cast upon the Government to notify in

the Official Gazette every election of President of

Municipality as is evident from the words "shall notify in

the Official Gazette" used in the sub- section. The State

Government has the authority to refuse to notify the

election of a President, of any person who has incurred a

disqualification under the Act or under any other law for

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the time being in force, subsequent to his election as

Member of the Municipality provided that before refusing to

notify the elections the State Government gives an

opportunity of being heard to the concerned person.

Admittedly, the State Government has failed to notify the

election of the President in the Official Gazette without

assigning any reason, much less "giving an opportunity" to

the respondent No.1. The omission and inaction of the said

Secretary cannot be made a basis for frustrating the

provisions of law and thereby nullifying the peoples'

verdict returned in an election conducted in accordance with

the provisions of law applicable in the case. Even if the

respondent No.1 had allegedly incurred some

disqualification, the State Government was obliged to inform

him that his election as President of the Municipality could

not be notified for the aforesaid reason. In the absence of

such intimation, the omission to nofity cannot be justified

on such ground. It has been contended that as the

respondent No.1 had allegedly incurred a disqualification in

terms of clause (e) of sub-section (1) of Section 16 of the

Act, the State Government was not obliged to notify his

election as President and was justified in removing him from

the Membership of the Municipal Council. Section 16(1)(e)

provides: "Powers 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

xxx xxx xxx

(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."

It may be noticed that Section 16 deals with the

powers of the State Government to remove a member under the

circumstances mentioned therein and does not refer to the

disqualification mentioned in proviso (1) to sub-section (2)

of Section 24 of the Act. We also do not agree with

Mr.Dutta that Section 16 prescribes the disqualification

referred to in the aforesaid proviso. It is also not

correct to say that no other disqualifications are

prescribed under the Act or under any other law and Section

16 of the Act is the only provision upon which the State

Government can rely for taking action under sub-section (2)

of Section 24 of the Act. It appears that the appellants

have overlooked the provisions of the Punjab State Election

Commission Act, 1994 which deals with the constitution of

the State Election Commission and for vesting the

superintendence, direction and control of the preparation of

the electoral rolls for and in the conduct of all elections

to the Panchayat and Municipalities in the State of Punjab

and to provide for all matters relating to or ancillary or

in connection with the provisions of the Panchayat and

Municipalities in terms of the provisions of Part IX and IXA

of the Constitution. Chapter IV in general and Section 11

in particular deals with the disqualifications for

Membership of a Panchayat or Municipality. Section 11

reads: "Disqualifications for membership of a Panchayat or

a Municipality - A person shall be disqualified for being

chosen as, and for being a member of a Panchayat or a

Municipality, -

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(a) if he is not a citizen of India, or has

voluntarily acquired the citizenship of a foreign State, or

is under any acknowledgement of allegiance or adherence to a

foreign State; or

(b) if he is of unsound mind and stands so declared by

a competent court; or

(c) if he is an undischarged insolvent; or

(d) if he has, in proceedings for questioning the

validity or regularity of an election, been found guilty of

any corrupt practice; or

(e) if he has been found guilty of any offence

punishable under Section 153A or Section 171E or Section

171F or Section 376 or Section 376A or Section 376B or

Section 376C or Section 376D or Section 498A or Section 505

of the Indian Penal Code, 1960 or any offence punishable

under Chapter XIII of this Act unless a period of six years

has elapsed since the date of such conviction; or

(f) if he holds an office of profit under a Panchayat

or a Municipality; or

(g) if he holds an office of profit under the

Government of India or any State Government; or

(h) if he is interested in any subsisting contract

made with, or any work being done for, that Panchayat or

Municipality except as a share-holder (other than a

Director) in an incorporated company or as a member of a

co-operative society; or

(i) if he is retained or employed in any professional

capacity either personally or in the name of a firm in which

he is a partner, or with which he is engaged in a

professional capacity, in connection with any cause or

proceeding in which the Panchayat or the Municipality is

interested or concerned; or

(j) if he, having held any office under the State

Government or any Panchayat or any Municipality or any other

State level authority or any Government company or any

corporated body owned or controlled by the State Government

or Government of India, has been dismissed from service,

unless a period of four years has elapsed since his

dismissal."

Disqualification contemplated "under any law for the

time being in force" under proviso to sub-section (2) of

Section 24 are, therefore, the disqualification as mentioned

in Section 11 of the Punjab State Election Commission Act,

1994. The appellants have nowhere stated or alleged any

such disqualifications attributable to the respondent No.1.

We also do not accept the plea of the appellants that by

assuming his duties as President, the respondent had

allegedly, "flagrantly abused" all his position as a member,

thereby incurring the wrath of the State Government in terms

of Section 16(1)(e) or Section 20 of the Act. The clause

"flagrantly abused of his position as member" means the

doing of such act or acts by a member of a committee in

disregard of his duty which would shock a reasonable mind.

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The nature of the 'abuse' before it could be termed as

'flagrant', must, in the circumstance be glaring, notorious,

enormous, scandalous or wicked. There is nothing on record

to show or suggest that the respondent No.1 in his capacity

as member or President took any undue advantage of his

position or under the colour of his office committed any

particular irregularity or reprehensive acts. Any alleged

contravention of the provisions of the Act cannot be

categorised as "flagrant abuse of power" by a member of the

Committee. The mere contravention, if any, (which was not

in this case) in respondent No.2 entering upon his office as

President before his name was approved and published in the

Official Gazette, particularly on account of wilful omission

of the State Government cannot be called either a 'flagrant

abuse of position' as a member or 'abuse of power' within

the contemplation of Section 16(1)(e) and Section 20 of the

Act. The appeal which is bereft of any merit is liable to

be dismissed. We are at pain to note that by his acts of

omission and commission the said Secretary has consistently

and persistently deprived the respondent No.1 of the duty to

assume and discharge his duties as member and President of

the Municipal Council, despite his election from 2.1.1998

till date. The term of the office of the Municipality is a

fixed term out of which three years of the respondent No.1

have been wasted in uncalled for and forced litigation upon

him. No law can compensate the loss of opportunity provided

to the respondent No.1 for serving the people after his

election as Member and President of the Municipality. We

find it a fit case to award exemplary costs and are of the

firm view that such costs should not be burdened upon the

State exchequer. The said Secretary who is responsible for

the violation of the statutory provisions and weakening the

concept of rule of law, is, therefore, personally liable to

pay the costs from his own pockets. While dismissing this

appeal we direct the said Secretary to personally pay the

costs of Rs.25,000/- to the respondent No.1 within a period

of two months.